Find a Lawyer

Criminal Revision No. 75 of 1972, decided on 16th September 1974.

----S. 439-Acquittal, setting aside order of, on ground of bias-Mere suspicion of bias even if not unreasonable does not render decision void.

Mere suspicion of bias even if it is not unreasonable is not sufficient to render a decision void. In the instant case, it has not been alleged much-less proved that the Sessions Judge had during the course of trial acted in such a way which might create any doubt that he was biased or that he had either tampered with or had mis-recorded the evidence, or that he had any preconceived notions and theories which he seemed to have formed at any stage of the trial. Therefore, there is no force in the objection strong enough to entail the vitiation of the trial on the ground of bias.

Syed Akhlaq Hussain v. Pakistan P L D 1969 S C 201 and Manzur Hussain v. The State P L D 1963 Lah. 20 ref.

-- S. 439-Finding of fact ordinarily not interfered with-High Court would interfere only where serious injustice caused by error of law Appreciation of evidence-Merely because lower Court has taken different view of evidence-No ground for revision-Revision by private party against order of acquittal-Powers could be invoked only in exceptional cases.

Revisional jurisdiction is conferred upon superior Courts to correct mis carriage of justice, arising from misconception of law or irregularity of procedure, resulting in some undeserved hardship to individuals. As a matter of fact the rule that ordinarily a finding of fact should not be interfered in revision is long recognized. Consideration in revision, of the propriety or legality of a procedure is to be confined to what appears on record. Any matter extraneous to the record cannot be taken into consideration. It follows, therefore, that the High Court will interfere, in revision, where serious injustice has been caused by an error of law. The view that a Court of revision will not interfere merely because the lower Court has taken a different view of the evidence in the case or look into the evidence to see whether the finding is correct or go into the weight or sufficiency of the evidence, or question a finding as to the credibility of witnesses, or substitute, where, two views are possible, its own view of the evidence for that of the lower Court, or that the lower Court has not properly appreciated the evidence, is supported by sufficient case-law. There must be some substantial error of law to justify the High Court to exercise its powers of revision, particularly against the orders of acquittal.

No doubt subsection (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by section 423, subsection (1)(a) except that it cannot convert a finding of acquittal into one of conviction. But in dealing with a revision petition by a private party against an order of acquittal, the High Court, cannot re-appraise the evidence and reverse pure findings of facts on which the acquittal is based.

Khairdi Khan and others v. The Crown P L D 1953 F C 223 ; D. Stephen v. Nosibolla 1951 S C R 284 and In re : Sh. Abdul Kareem, Advocate P L D 1950 Lah. 439 ref.

S. Usman Ali Shah for Petitioner.

Abdul Samad Khan for Respondents.

Mian Burhanuddin Khan, A.-G. for the State.

Date of hearing : 16th September 1974.

Muhammad Zaman Khan (now dead) and 5 others were tried in the Court of Mr. Abdullah Jan Mirza, Sessions Judge, Hazara at Abbottabad under sections 148, 302/149, 307/149 and 395/149, P. P. C., on charges that on 30-6-1968 at 8 a.m., they formed themselves into an unlawful assembly, armed with deadly weapons at Salam Khand village, Tehsil Haripur, District Hazara with the common object of committing the murder of Ghulam Khan (deceased), and attempting at the lives of Fida Muhammad Khan complainant (P. W. 3) and his companions by firing at them with firearms and in pursuance thereof also committed dacoity in respect of the shot-gun Exh. P. 1, licensed in the name of Fida Muhammad Khan complainant. At the conclusion of the trial, the learned Sessions Judge, disbelieving the prosecution evidence came to the conclusion that no case against any one of the accused had been made out and finding the accused not guilty of any charge, he acquitted them.

2. Complainant Fida Muhammad Khan has through this revision petition challenged the finding of the learned trial Judge, resulting in the acquittal of the accused and has prayed that the judgment of the learned Sessions Judge be set aside and retrial of the accused-respondents be ordered.

3. There was a cross-case against Fida Muhammad Khan and five others registered in the same Police Station under sections 148, 307/149 and 342, P. P. C. The time and scene of occurrence in that case was also the same as in the instant case and the accused in that case were charged for forming themselves into an unlawful assembly armed with deadly weapons with the common object of attempting at the lives of Wakil Shah and Said Gul. They were also charged for wrongfully confining Wakil Shah in the prosecution of their common object. That case and the present one were tried together and the learned Sessions Judge, Hazara by the judgment dated 18-3-72 acquitted all the accused in that case as well. No appeal or revision petition against the said acquittal has been preferred.

4. At the outset learned counsel for the petitioner vehemently attacked the language used against the complainant Fida Muhammad Khan in the impugned judgment of the learned Sessions Judge. It is contended that before the trial in this case commenced, Fida Muhammad Khan had submit ted an application for the transfer of this case from the Court of Mr. Abdullah Jan Mirza, Sessions Judge, Hazara for some cogent reasons. This fact annoyed the learned Sessions Judge and he had thus become prejudiced against Fida Muhammad Khan at whose instance the present case had been set up, in that, it was on his report that a case was registered against the accused respondents and it was he against whom the accused-respondent had a grudge and an axe to grind. Learned counsel for the petitioner maintains that this ground alone is sufficient for quashment of the judgment of the learned trial Court, hence the order of acquittal of the accused-respondents.

5. Record of the case reveals that before the trial in this case commenced, Fida Muhammad Khan complainant in this case who was also an accused in the cross-case referred to above, submitted an application before the High Court for the transfer of this case from the Court of Mr. Abdullah Jan Mirza, Sessions Judge, on the ground that Muhammad Zaman Khan accused (since dead) alongwith two ladies had visited the residence of the learned Sessions Judge an hour or two before the hearing of the application for cancellation of bail against Muhammad Zaman Khan accused. Record of the case further shows that application for cancellation of the bail of Muhammad Zaman Khan accused (since dead) was rejected by the said learned Sessions Judge on that date. But the learned counsel for the petitioner admitted that the said application for the transfer of the case was: later withdrawn by Fida Muhammad Khan. Thereafter when the file came back for trial of the case to the learned Sessions Judge, he re-submitted the same to the High Court with a request that the case be transferred to some other Sessions Judge in view of the allegations made and lack of confidence expressed against him, but the request was not accepted by his Lordship the Chief Justice and the case was retransmitted to the same Judge for trial, where after the learned Sessions Judge proceeded with the trial which ended in the acquittal of the accused-respondent.

6. Lament of the petitioner in that regard is understandable although it would not appear to be of any force at this stage. As indicated above, Fida Muhammad Khan is a complainant in the case under revision, whereas be was an accused in the cross-case referred to above. His effort for transfer of the case from the Court of Mr. Abdullah Jan Mirza, Sessions Judge would have been more meaningful in the casein which he was an accused person as the prejudice of the learned trial Judge against him could land him in conviction, but it did not so happen. Instead he was acquitted alongwith his companions, of the aforementioned charges, obviously to his satisfaction as to the impar tiality of the trial Judge. Moreover, it is nowhere alleged much-less sub stantiated on record either by evidence or any other circumstance, if through out in the course of trial of this case, Mr. Abdullah Jan Mirza, the learned Sessions Judge, had in any way behaved either by show of conduct or through irregular or improper observance of procedure which might betray his direct or indirect bias either against the complainant or in favour of the accused-respondents. On the contrary, the learned Sessions Judge appreciat ing the apprehension of Fida Muhammad Khan who had earlier made some allegations against him in his transfer application did submit the case file to the High Court with a request that the trial may be entrusted to some other competent Judge but his Lordship the Chief Justice of this Court declining to accept the request instead directed him to proceed with the trial himself, in accordance with law.

7. In Syed Akhlaq Hussain v. Pakistan (P L D 1969 S C 201), their Lordships relying on, two cases Reg. v. Rand per Blackburn, J. and Regina v. Cambrone Justices and, another Ex parte Pearce per Slode, J. were pleased to observe at page 205, that:

"we are, therefore, of the view that mere suspicion of bias even if it ,s not unreasonable is not sufficient to render a decision void. A real likelihood of bias must be established."

In Manzur Hussain v. The State (P L D 1963 Lah. 20) relied upon by the petitioner exception was taken as to the conduct of a Magistrate who bad formed preconceived notions and theories at fairly early stage of trial and had cross-examined defence: witnesses at length by putting questions which could only be put by counsel on instructions and who had judged evidence in light of conclusions, formed by himself rather than drawing conclusions from evidence. In that case, as would appear from the judgment itself, the learned Magistrate had in his zeal to do justice and in his indignation at what seemed to have appeared to, him as an attempt to frustrate justice played the role of a counsel for a party. The pre-judgment of the learned Magistrate was also apparent from another circumstance. While holding that, prosecution had failed to prove that the recovered gram was also the property of the depot, but in spite of that; be concluded that,

"to my mind it was absolutely clear that the recovered gram was also, certainly of the depot and someone in the establishment of the depots had filled up the lacuna wherever it existed in the books of the depot."

8. In the instant case, it has not been alleged much-less proved that the learned Sessions Judge bad during the course of trial acted in such a way which might create any doubt that he was biased or that he had either, tampered with or bad mis-recorded the evidence, or that he had any precon ceived notions and theories which he seemed to have formed at any stage of the trial. Therefore, I find no force in this objection of the petitioner strong enough to entail the vitiation of the trial on the ground of bias.

9. Learned counsel for the petitioner argued the case on merits at considerable length. The evidence on record was discussed threadbare. He' was, however, unable to substantiate his attack, while disputing the conclu sion of the learned trial Judge in the impugned judgment that the evidence discussed therein had been mis-quoted or mis-stated. Learned A: G. who appeared for the State frankly conceded that the judgment of the learned trial Judge did not suffer from any misreading or misinterpretation of evidence. The appreciation of evidence by the learned trial Judge wherefrom the conclusion about the innocence of the accused persons was drawn is neither perverse non- foolish resulting in miscarriage of justice. The record of the case is com plete. There is no flaw in jurisdiction. Learned counsel for the petitioner' was unable to state with any reason if on the evidence on record any finding other than the one of acquittal could be given in the circumstances of this particular case. He, however, maintained that the Investigating Officer, with a view to destroy the evidence of the prosecution, prepared a wrong site plan wherein the position of the deceased lying dead on the spot at the time of the visit of the I. O. has been so shown that his having been fired at by the assailants from a place mentioned by the prosecution witnesses, was made doubtful. Injuries on the person of the deceased as found by the doctor were of a nature which could have not been caused in the manner described by the alleged eye-witnesses if at the time of firing, the deceased had been at a place lower in level than that of the assailants. Whether the head of the deceased was towards the place wherefrom he was allegedly fired upon or in the opposite direction when he was found lying dead by the I. O. is not very material because the injury on his thigh, both at entrance and exit, could only be caused if the assailant and the victim had been at the same level, where after the deceased must have fallen down and the second injury was caused to him while he was in a lying position. So the recon sideration of the evidence at the time of re-trial could hardly entail a different conclusion.

10. Revisional jurisdiction is conferred upon superior Courts to correct miscarriage of justice, arising from misconception of law or irregularity of procedure, resulting in some undeserved hardship to individuals. As a matter of fact the rule that ordinarily a finding of fact should not be inter fered in revision is long recognised. Consideration in revision, of the pro priety or legality of a procedure is to be confined to what appears on record. Any matter extraneous to the record cannot be taken into consideration. It follows, therefore, that the High Court will interfere, in revision, where serious injustice has been caused by an error of law. The view that a Court of revision will not interfere merely because the lower Court has taken different view of the evidence in the case or look into the evidence to see whether the finding is correct or go into the weight or sufficiency of the evidence, or question a finding as to the credibility of witnesses, or substitute, where, two views are possible, its own view of the evidence for that of the dower Court, or that the lower Court has not properly appreciated the evidence, is supported by sufficient case-law. There must be some substantial error of law to justify the High Court to exercise its powers of revision, particularly against the orders of acquittal.

11. In Khairdi Khan and others v. The Crown (PLD 1953 FC 223) it was held that---

"where the trial was not contrary to any fundamental rule of procedure and the acquittal was not based on a view of the evidence which no reasonable judicial officer could have taken, the case was not one in which retrial could have been ordered."

Their Lordships of the Federal Court of Pakistan were in complete agreement with the views expressed by the Supreme Court of India in D. Stephen v. Nosibolla, referred to in the above judgment of the Federal Court of Pakistan wherein it has been held that--

"the revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross-miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record ...

12. No doubt subsection (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by section 423, subsection (L)(a) except that it cannot convert a finding of acquittal into one of conviction. But in dealing with a revision petition by a private party against an order of acquittal, the High Court, cannot re-appraise the evidence and reverse pure findings of facts on which the acquittal is based. In this case as indicated above, the judgment of the learned trial judge is neither manifestly wrong nor it is lacking in perspective.

13. In a Lahore case reported in P L D 1950 Lah. 439, it was held that:

"Needless to say that where the Government is not interested and for that reason it has not appealed, this Court will order a retrial only if the case is of such a singularly exceptional character, that, unless a retrial is ordered, a grave and irremediable injustice must be the result, and such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure, or where the acquittal is based on a view of evidence which no reasonable judicial officer, anxious to do justice, could possibly take."

14. Keeping in view the law which has been discussed above, and the material on record, I am firmly of the view that interference by the High Court in the exercise of its revisional jurisdiction against the order of acquittal of the accused-respondent will be uncalled for. This revision petition, there fore, fails and is, consequently dismissed.

K.B.A Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.