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Criminal Review Petition No. 1 of 1988, decided on 11th December, 1988.

(In the matter of review of the judgment of Supreme Court, dated 16 2 1988, in Criminal Appeal No. 3 of 1987).

O. XLVI, R. 1 Criminal proceedings Scope of review by Supreme Court, Under Order XLVI, Rule 1 of Azad Jammu and Kashmir Supreme Court Rules, 1978, it is postulated that subject to law and the practice of the Court, the Court may review its judgment or order in a criminal proceeding, on the ground of an error apparent on the face of the record. The scope of review is, therefore, limited in the sense that the review powers can be invoked on the satisfaction that the impugned judgment or order suffers from an error apparent on the face of record. This again is subject to law and practice of the Court.

In order that an error may be a ground for review, it must be one which is apparent on the face of the record, i.e., it must be so manifest and so clear that to keep such an error on the record may perpetuate visible injustice. Error may be of a fact or law but it must, however, be an error which is self evident and does not require any elaborate discussion.

Besides, it is also to be borne in mind that as finality attaches to the judgment delivered by Supreme Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of rehearing of the whole case nor it is an appeal against the judgment under review. It is, therefore, not permissible to embark upon the reiteration of the same contentions. In criminal matters the Supreme Court will not interfere in review with the quantum of sentence if a legal sentence has been imposed or upheld after due consideration of all the relevant circumstances.

Nevertheless the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles.

The Court has to administer law to achieve the intended object of redeeming the grievance of aggrieved party within the framework of the system of taw. If a mistake or error on the face of the order or judgment is brought to the notice of the Court it is enjoined upon the Court to rectify such a mistake or error by review in order to bring it in consonance with just position. The Court has not to hesitate in modifying the order on finding such an error or fault in view of its primary duty to do justice and not to allow injustice to perpetuate.

Muqaddimah by Ibn Khaldun, p. 173; Sabir Hussain alias Tonchi v. The State Criminal Review Petition No. 2/MR of 1983 and Faqir Muhammad Khan v. Mir Akbar Shah P L D 1973 SC 110 ref.

Court has to administer law to achieve the intended object of redeeming the grievance of aggrieved party within the framework of the system of law.

---Point already settled cannot be raised in review.

Inspection note by Trial Court cannot be accepted in isolation to rest of the evidence to determine the guilt of accused Such note has to be construed alongwith the surrounding circumstances including the site plan and ocular evidence.

Raja Muhammad Akram Khan, Advocate for Petitioner.

Mirza Muhammad Nisar, Addl. Advocate General for the State.

. The review petition is addressed" against the order of this Court passed on February 16, 1988, whereby the conviction and sentence of imprisonment and fine awarded to the petitioner by the Shariat Court on the charge of murder was maintained.

2. The incident of murder of Ghulam Qadir deceased, occurred on April 9, 1982, at 10 00 a.m. at Upper Plate Muzaffarabad City. According to the report made by Gul Joo father of deceased, the parties were immediate neighbour. Gul Joo constructed a new house. The rear wall was still under completion. In its rear Abdul Samad father of the petitioner, resided in his house whose filthy water entered the courtyard of the complainant. This was the point of dispute between the parties. Khaliq Butt, Sh. Nasim and Muhammad Mustafa Chughtai, Members of the Municipal Committee settled the dispute by directing Abdul Samad to construct the drain. In compliance Abdul Samad constructed half of the drain by diverting the flow of water and declined to complete it. On the day of incident Gul Joo, non petitioner, Ghulam Qadir deceased, Wajahit Hussain and Muhammad Siddique visited their house. It was 10 00 a.m. and they were engaged in blocking the water hole when Abdul Samad and Imtiaz Ahmed arrived on the scene. They asked the complainant and his associates to stop closing the drain. Ghulam Qadir deceased, told them that the drain was being closed for protection of their house and declined to stop the work. Abdul Samad remained standing whereas Imtiaz convict petitioner moved near Ghulam Qadir deceased. He took out Chhuri" from his Shalwar"s fold and inflicted a blow on the left side of chest of Ghulam Qadir with the intention to kill him. On infliction of injury Ghulam Qadir fell down in injured condition. Ghulam Qadir was immediately taken to hospital but he succumbed to the injury on way to hospital.

3. In support of allegation the prosecution produced number of witnesses including the aforesaid eye witnesses of the incident. The trial Court convicted the petitioner under section 304 A by awarding the sentence of 10 years with the fine in sum of Rs.2,000. In appeal the Shariat Court vide its order passed on August 13, 1985, reduced the period of sentence to 9 years. In appeal to this Court the order of the Shariat Court was set aside on account of long gap between hearing of arguments and decision of the Court and the case was remanded for fresh decision. In the second round the learned Judge of the Shariat Court felt convinced to enhance the sentence to 14 years. On appeal, this Court in view of the reasons recorded in its order maintained the period of imprisonment and fine in sum of Rs.2,000. The review is addressed against the aforesaid order.

4. Under Order XLVI, Rule 1 of Azad Jammu and Kashmir Supreme Court Rules, 1978, it is postulated that subject to law and the practice of the Court, the Court may review its judgment or order in a criminal proceeding, on the ground of an error apparent on the face of the record. The scope of review is, therefore, limited in the sense that the review powers can be invoked on the satisfaction that the impugned judgment or order suffers from an error apparent on the face of record. This again is subject to law and practice of the Court. The learned counsel for the petitioner, being fully conscious of the limited scope of the review endeavoured to convince us to modify the earlier opinion expressed in number of cases by this Court and to enhance the scope of review to redress the grievance of an aggrieved person.

5. It is a celebrated rule of administration of justice that the Court has to administer law to achieve the intended object of redeeming the grievance of aggrieved party within the framework of the system of law. If a mistake or error on the face of the order or judgment is brought to the notice of the Court it is enjoined upon the Court to rectify such a mistake or error by review in order to bring it in consonance with just position. The Court has not to hesitate in modifying the order on finding such an error or fault in view of its primary duty to do justice and not to allow injustice to perpetuate. In this respect reference may be made to the letter addressed by Hazrat Umar to Abu Musa al Ashari, as Judge in Kufah. The relevant part of the letter as described at page,173; Muqaddimah by Ibn Khaldun, is reproduced:

"If you gave judgment yesterday, and today upon reconsideration come to the correct opinion, you should not feel prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness."

6. The scope of power of review was examined in Sabir Hussain alias Tonchi v. The State Criminal Review Petition No. 2/MR of 1983, Mr. Justice Raja Muhammad Khurshid Khan, the learned Chief Justice of this Court, observed.

"In order that an error may be a ground for review, it must be one which is apparent on the face of the record, i.e., it must be so manifest and so clear that to keep such an error on the record may perpetuate visible injustice. Error may be of a fact or law but it must, however, be an error which is self evident and does not require any elaborate discussion.

Besides, it is also to be borne in mind that as finality attaches to the judgment delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of rehearing of the whole case nor it is an appeal against the judgment under review. It is, therefore, not permissible to embark upon the reiteration of the same (as is done in the present) as were advanced at the time of hearing of the appeal; but were considered and repelled in the judgment under review. It needs also to be noted that it is well settled principle of law that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence if a legal sentence has been imposed or upheld after due consideration of all the relevant circumstances.

7. In Faqir Muhammad Khan v. Mir Akbar Shah P L D 1973 SC 110, Mr. Justice Hamoodur Rehman, the learned Chief Justice, who spoke for the Court observed:

"Nevertheless we must also point out that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles."

8. The test laid down in the aforesaid authorities is to be applied to the present case, particularly in the light of the rules of this Court, to eliminate every likelihood of injustice to the parties.

9. In the present case various facts are listed in para. 2 of the grounds of petition for review, which according to the learned counsel misled the Court in drawing inference in maintaining the conviction of the petitioner. We have perused the facts listed in para. 2. In our estimation the learned counsel who drafted the grounds failed to appreciate that reference to these facts was made in operative part of the impugned order in the context of the allegations of the prosecution. In other words, the prosecution ascribed liability of offence of murder to the petitioner in the light of the facts narrated in para. 2 of the impugned order. Likewise, reference to facts listed at page 4 is incorrect, as those facts, reveal the cross version of the convict unfolded in the statement under section 342, Cr.P.C. The statement of facts listed in para. (vi) relates to the statement of convict and not the complainant, as described by the petitioner, Therefore, we have no hesitation to hold that all the facts constituting the allegation and the defence raised by the convict, were verbatim reproduced.

10. The next objection is to the effect that the case of the petitioner was not considered in the light of the arguments advanced at the bar as none of the citations (15 numbers) relied by the defence, was referred in the impugned order. To elaborate the point, it was emphasised that the onus to prove the guilt ascribed to accused was always on the prosecution. Thus the prosecution, according to the petitioner, was bound to prove its case beyond reasonable doubt. In support of this contention 19 authorities were listed. The principle of law pressed in support of the grounds of review need no reiteration or re analysis as this celebrated principle of law has been always strictly adhered to by this Court. We wonder whether such a well known principle of law required support of any authority. This Court in a large number of cases has already observed that in criminal case it is the bounden duty of the prosecution to prove its case beyond reasonable doubt. We, therefore, did not consider it appropriate to refer to any authority in support of the view. The important aspect of the case which required consideration of this Court was whether the prosecution fulfilled its duty in proving its case beyond reasonable doubt or not. We attended this aspect of the case and arrived at the conclusion that the prosecution discharged its obligation by proving its case beyond reasonable doubt. This is how we concurred with the Shariat Court in maintaining the conviction.

11. Objection relating to corroboration of interested and inimical prosecution witnesses, has been reiterated. A point already settled cannot be raised in review. We have already dealt with the point comprehensively. To answer the objection the relevant part of the impugned order is reproduced:

"It is accepted that the eve Witnesses are related to deceased, as such it is enjoined upon us to ask for independent corroborating evidence. But before doing so, it appears conducive to understand the meaning of term corroboration. The term corroboration of evidence" used in criminal law meant to lend support, to add weight or credibility to the testimony. It refers to additional circumstance, factor or substance which confirms the evidence. In Black"s Law Dictionary the phrase is defined as:

To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.

The expression corroborating circumstances" clearly does not mean facts which; independent of a confession, will warrant a conviction; for then the verdict would stand not on the confession, but upon those independent circumstances. To corroborate is to strengthen, to confirm by additional security, to add strength. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known or established. Corroborating circumstances, then, used in reference to a confession, are such as serve to strengthen it, to render it more probable; such in short, as may serve to impress a jury with a belief in its truth.

In the present case in addition to eye witnesses, we are in possession of medical evidence and the weapon of offence. In medical report, the injury resulting in death of Ghulam Qadir, is described on left side of chest 1 1/2" below left clavicle 1 3/4" x 1" deep. It penetrated the anterior wall of left atrium of heart. According to the medical report the injury was caused with sharp weapon like knife. The position and size of injury is to be compared with the weapon with which it was inflicted. The prosecution produced two witnesses of recovery who testified that Chhuri", the alleged weapon of offence, was recovered at the instance of accused. We have perused the evidence of recovery witnesses and we find no defect or objection to receive it in support of the prosecution"s case. The learned counsel for the defence said nothing against this evidence as to why it should not be accepted. The Chhuri" was stained with human blood. This was affirmed in the report of the chemical examiner. The blood group was not determined on account of lack of sufficient material. The doctor who conducted the post mortem, also examined the Chhuri" and expressed his opinion in his report wherein was explained that injury of the deceased was possible with Chhuri". An abstract of Chhuri" was placed on record. We have examined the abstract. In our opinion the size of Chhuri" corresponds to the dimension of injury. The afore described circumstances corroborate the testimony of the eye witnesses."

The plea of self defence was equally raised in the grounds of appeal. It is also repetition of the ground raised in the appeal. Relevant answer to the point already discussed is as under:

"It was emphasised next that the deceased trespassed in the premises of the accused in order to close the water hole from that side. He was engaged in closing the water hole, when the accused arrived on the scene. The accused was abused and assaulted; as such he was justified to push the deceased in order to save himself. In this position the injure caused on the person of deceased cannot be counted as the liability of accused. The position taken up by the learned counsel for the defence, is partly described earlier. The exception of right of self defence of person or property is permitted under law but at the same time, in order to avail the exception of self defence, it is essential to show; (i) that the occurrence was not due to the fault or act of accused; (ii) that there was an immediate danger to life, in honest belief of accused; (iii) that no reasonable course was available to accused to escape or avoid the necessity; and (iv) that there was no intention to cause more harm than necessary for the purpose.

In the present case the accused was in possession of Chhuri" whereas the deceased was empty handed. The allegation of trespass of deceased in order to close the water hole from that side, is not supported by any circumstance. Moreover, the proposition appears to be improbable. This is so as there is a compound wall dividing the courtyard of the parties. The height of the wall at the relevant point is 3 to 4 feet. It is unexplained as to how the deceased lay injured on the side of his own courtyard. In the circumstances we have to accept the position of occurrence, described by the prosecution. Our attention was invited to bald statement of Gul Joo, wherein it was accepted that a branch of Drawa" tree standing in the courtyard of Abdul Samad, was found broken. This statement was made by Gul Joo in an answer to a question in the cross-examination. But it was riot explained as to when, how, and by whom that branch of the tree was broken. This is so as the said branch of tree was neither found lying on the spot at the time of occurrence nor it was recovered during the investigation. Therefore, mere acceptance of the fact that the branch of Drawa" tree was found broken, lends no support to the plea of self defence."

12. The last objection pertains to the inspection note prepared by the learned Sessions Judge. We examined the inspection note in the light of site plan prepared by Patwari and other evidence and arrived at the conclusion recorded in the impugned order. Here it is essential to note that inspection note cannot be accepted in isolation to rest of the evidence, to determine the guilt of accused. It is to be construed alongwith the surrounding circumstances including the site plan prepared by the Patwari and ocular evidence. On applying the aforesaid test to the inspection note prepared by the learned Sessions Judge we were not convinced to give it sanctity of preference over rest of the evidence. The much emphasised plausible defence version was not supported by the evidence on record.

There is no force in the review petition. It is, therefore, dismissed.

M.BA./240/SC(AJK) Petition dismissed.

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