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Criminal Appeal No. 86 of 1961, decided on 12th March 1962.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore. dated the 8th July, 1959, in Criminal Revision No. 213 of 1958).

Granted to consider whether order for re‑trial was made "in accordance with right principles"‑Constitution of Pakistan (1956), Art. 160.

When not to be ordered‑Existence of circum stances which do not support prosecution case but which make defence version "possible".

Where the prosecution witnesses are affected by partisanship, or their evidence gives rise to doubts of a reasonable character, or there are circumstances which do not support the: prosecution case, and may lend support to the defence case, so as to render the defence version a possible one, there to remand the case for a re‑trial may amount merely to presenting a doubtful prosecution case before a Court of first instance for another opinion. In such circumstances, indications contained in the order of remand as to how doubts may be resolved, or that despite the appearance of partisanship, a witness may yet be speaking the truth on a particular point and other such expressions of opinion might be calculated to interfere with the course of justice.

Supreme Court abstained from expressing opinion on points of fact where High Court's order for re‑trial was held to be correct.

When not, improper‑Trial Court's conclusions (in judgment of acquittal) not supported by "balanced statement of relevant facts or by truly reasoned arguments"‑Re‑trial order held to be correct.

High Court's order for re‑trial (in case of acquittal) attempting "exhaustive analysis" of case and evidence relating to principal elements and expressing opinions "not lacking in directness" but, at same time, cautioning lower Court against treating such opinions as "binding"‑Re‑trial, held not improper.

Nasim Hassan Advocate Supreme Court instructed by Naziruddin Attorney for Appellants.

M. Anwar Advocate‑General West Pakistan (M. B. Zaman Advocate Supreme Court with him) instructed by Ijaz Ali Attorney for Respondent No. 1.

Miss R. S. sari Advocate Supreme Court instructed by Siddiq & Company Attorneys for Respondents Nos. 2 and 3.

Date of hearing : 12th March, 1962,

This is an appeal by special leave granted to Abdur Rashid and 4 other persons who have been ordered by the High Court of West Pakistan to undergo re‑trial for offences under sections 302, 307, 324/148 and 149, P. P. C., of which offences they had at the trial been acquitted. The order of the High Court was made by a learned Single Judge sitting in revision. There had been no appeal by the Provincial Government under section 417, Criminal Procedure Code, against the acquittal, and consequently, interference by the High Court was confined to ordering a new trial.

The grounds upon which leave to appeal from this order was granted are contained in the following passage from this Court's order of the 10th August, 1959, which may be reproduced:-

"We consider that it Is a serious question for consideration whether the order for a retrial, which puts the petitioners in peril of their lives for a second time in the same cause A has been made in accordance with right principle. It is obvious that where the prosecution witnesses are affected by partisanship, or their evidence gives rise to doubts of a reasonable character, or there are circumstances which do not support the prosecution case and may lend support to the defence case, so as to render the defence version a possible one, there to remand the case for a retrial may amount merely to presenting a doubtful prosecution case before a Court of, first instance for another opinion. Moreover, In such circum stances, Indications contained in the order of remand as to how doubts may be resolved, or that despite the appearance of partisanship, a witness may yet be speaking the truth on a particular point and other such expressions of opinion might be calculated to interfere with the course of justice."

We have been taken through the judgment of the trial Court, and have checked a number of the Sessions Judge's conclusions against the evidence in the case which is now before us in full. We do not think it right or fit to express opinions on points of fact relevant to the final conclusions reached by the trial Judges We think so because any opinions expressed by this Court on c such matters may have a serious effect upon the decisions which may be reached by the Court which retries the case. For, we, are clearly of the opinion having regard to the nature of the treatment given by the trial Judge to the evidence in the case, that the order of the High Court directing the retrial so that the, evidence may be considered from a fair, and impartial point off view is entirely correct. We think that it is not going too far, to say that there is scarcely a single conclusion reached by they trial Judge which is supported by a balanced statement of the relevant facts, or by a truly reasoned argument. One matter which has been urged before us and finds mention in the admitting order, namely, the existence of circumstances tending to support the defence case "so as to render the defence version a possible one" will have to be considered de novo at the retrial, for the subject has received no treatment Whatsoever at the hands of the trial Judge. It is true that the order of the learned Single Judge by which the case has been remanded for retrial contains a fairly exhaustive analysis of the case and the evidence led in support of its principal elements, and opinions have been expressed which run counter to those of the trial Judge, and are couched in language which is not lacking in directness. At the same time the learned Judge added the caution that nothing which he had said in his order should be treated as binding by the Court before which the case goes for retrial. That Court will, we hope. act upon the letter of this caution, and unhesitatingly reach its own conclusions on the evidence led before it.

The appeal is accordingly dismissed.

A.H. Appeal dismissed.

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