This order will dispose of Criminal Revision No. 4/D of 1978 filed by Sardar Ali Shah, petitioner against the judgment of the learned Additional Sessions Judge, Lakki dated 19-12-1977 who on retrial acquitted accused-- respondent, namely, Muhammad Iqbal charged under section 302, P. P.
C. For the murder of Siddique Gul Shah.
2. Succinctly the facts relevant to the present petition are that Muhammad Iqbal respondent was arraigned by the local Police on the charge under section 302, P. P. C. For the murder of Siddique Gul Shah. He was tried by the learned Sessions Judge Bannu who vide his order dated 26-10-1976 convicted him under section 304, P. P. C. And sentenced him to ten years' R. I. And a fine of Rs.
10,000. In default of fine to suffer further R. I. For two years. Half of the amount on recovery was ordered to be paid to the heirs of the deceased as compensation.
Muhammad Iqbal appealed against his conviction and sentence. The petitioner had also filed a revision petition for the enhancement of the sentence of the respondent. Both the appeal and the revision came up for hearing in the High Court on 12-10-1977. The respondent was represented by S. Masoom Shah Advocate while Aga Khan Baba Khan appeared for the complainant and the State was represented by Mian Shakirullah Jan, Advocate.
The arguments in the case had not yet concluded when from the perusal of the record it transpired that Iqbal respondent had lodged cross report No. 114 in which he had charged Nasrullah Jan for firing at him effectively and the doctor who examined him (Iqbal) had also found a fire-arm inlet wound 1/3' x 2/3" face deep on the right side just below the right lower angle of mandible. At the trial, however, no question was put to him (Iqbal) respondent about his injuries when his statement under section 342, Cr. P. C. Was recorded. Since the examination of Muhammad Iqbal respondent was not in accord with the requirement of section 342, Cr. P. C. I passed the following orders in the case :-- "I, therefore, order the re-trial, of the appellant by the Additional Sessions Judge, Lakki from the stage of the examination of the accused on the above point. I will like to make it clear that though I am not recording elaborate reasons, I accept this appeal and set aside the conviction and sentence of the appellant. The case shall be taken up by the learned Additional Sessions Judge, Lakki because the Sessions Judge Bannu, who has tried the case has already expressed his opinion in the matter and in the interest of justice it will be a fit case to be tried by the learned Additional Sessions Judge, Lakki. The appellant will remain as under trial prisoner and the Jail Authorities are directed to produce him before the learned Additional Sessions Judge, Lakki when required.
For the foregoing reasons, the revision petition is accordingly disposed of."
3. When the learned Additional Sessions Judge was seized of the case, he summoned the respondent from Jail and recorded his statement under section 342, Cr. P. C. As directed and after hearing the learned counsel for the parties acquitted Muhammad Iqbal respondent of the delict vide his impugned judgment.
After the order of acquittal, the complainant approached the District, Magistrate with a request to move the Provincial Government for filing state appeal against the order of acquittal of respondent under section 417, Cr. P. C. But the same was turned down by the District Magistrate vide his order dated 26-4-1378. After failing in his above endeavours, the petitioner has filed the present petition.
4. Here before me, the learned counsel for the petitioner submitted that he is not going to attack the judgment of the learned Additional Sessions Judge, Lakki on merits but only challenges the same purely on legal grounds. His first contention was that the order of acquittal of Iqbal respondent was an invalid one as the trial in which it was recorded was completely illegal and void; that the learned Additional Sessions Judge, Lakki had no powers to decide this case (which is exclusively triable by the learned Sessions Judge who had recorded the evidence in the case) without himself recording the evidence of all the P. Ws. And, as such, the verdict based on such record is void and has no existence in the eyes of law. He further submitted that no provision exists in the Criminal Procedure Code where a case under such circumstances is entrusted to another Sessions Judge for re-trial. The only provision which is available in the Criminal Procedure Code, he contended, is section 350, Cr. P. C. Relating to the trials conducted by the Magistrate which reads:- "Where any Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re---summon the witnesses and recommence the inquiry or trial."
In support thereof the learned counsel relied on PLD 1962 Dacca 7, PLD 1959 Pesh. 20.
It is well settled now, he submitted, that the re-trial by a Sessions Judge in the case from the stage of the examination of the accused under section 342, Cr. P. C. Should have been either by the same Sessions Judge or in case it was to be beard by another Sessions Judge then there should have been trial de novo. The absence of these accepted principles, he reiterated, ha vitiated -the entire trial. In this behalf he relied on 1969 P Cr. L J 371.
The above contentions were vehemently opposed by the learned counsel appearing on behalf of Muhammad Iqbal respondent. He contended that the order of the Single Judge of the High Court for the re-trial of the respondent by Additional Sessions Judge Lakki from the stage of recording of the statement under section 342, Cr. P. C. Was perfectly legal and no exception can be taken to it.
4. After hearing the learned counsel for the parties and going through the authorities cited by them at the bar, I do not find myself in agreement with the submission made by the learned counsel for the petitioner.
It is true that there exists no provisions in Criminal Procedure Cod where in the given circumstances the case is entrusted to another Session Judge for a re-trial from the stage of the examination of the accused under section 342, Cr. P. C. Or from any other stage but there is no bar either in handing over the case to another Sessions Judge for decision on the evidence already recorded by another Sessions Judge from a certain stage. In this view of the matter, I am fully fortified by an authority reported in PLD 1958 SC (Pak.) 275 (relied upon by the learned counsel for the respondent). In this case, too, the order of conviction was passed by a Sessions Judge, maintained by the concerned High Court and ultimately the appeal came up for hearing before the Supreme Court and their Lordships set aside the order of conviction and ordered its re-trial from a particular point by another Sessions Judge to be selected by the concerned High Court. The relevant portion is being reproduced in verbatim for convenience sake:- "We accordingly allow the appeal of Moonda, Siraj, Lal and Sardara son of Fazal Elahi and set aside the order of conviction made against them by the High Court. We also allow the petition of Dargabi, Muhammad Raja, Niaz Ali son of Haku, Allah Dad and Sardara Mirasi and' while granting them leave to appeal, we set aside their conviction as well. In both cases, we make a direction as follows, that is to say, the case shall be remitted to a Sessions Court to be selected by the High Court and shall be re-tried from the point of conclusion of the prosecution evidence as against the ten appellants before this Court, who shall be re-examined by the trial Court under section 289 of the Criminal Procedure Code, and the trial shall proceed from that point according to law to its conclusion in a judgment of conviction or acquittal, as the case may be. In particular, and to avoid any doubt we direct that each of the ten accused persons affected by this order shall be expressly allowed an opportunity to state whether or not he will adduce evidence in his defence and shall be given such reasonable opportunity as the law requires to produce his evidence, if any, orders regarding the custody of these appellants will be made by the High Court in the first instance and thereafter by the Sessions Court, when it is seized of the case."
It is the trite law that the decision of the Supreme Court must prevail against the decision of the High Courts unless and until the same has been re-called by the Supreme Court itself, and this decision has rightly been followed in a case reported in PLD 1961 Lah. 333 at page 337 by their Lordships of the Lahore High Court which reads:- "I am clear in my mind that no other Court in Pakistan is competent to place on a judgment of the Supreme Court an interpretation which does not flow from the words used therein. Occasion for interpreting a judgment of the Supreme Court can arise either when it is to be determined what the law declared by that Court is or when it is to be determined what the Supreme Court has directed in a particular judgment to be done. In the former case it is permissible to look into all judgments of the Supreme Court dealing with the point but in the latter attention has to be riveted on the particular judgment. But in either case by the method of interpretation of a judgment of the Supreme Court which Court by reason of the fact that being the Court of ultimate jurisdiction its judgments are not open to appeal has in its own field powers of a Supreme Legislature, cannot be any different from the method enjoined for interpretation of statutes which is that the words used are to be given their ordinary meaning. This is, however, subject to the condition that some other part of the same judgment does not make it appear that the words used had any other than their plain and ordinary meanings.
5. From the perusal of the Authorities relied upon by the learned counsel for the petitioner it seems that the judgment of the Supreme Court PLD 1958 SC 275 was not produced in any of the cases cited above and had it been produced the conclusion would have been different.
It needs no emphasis that in criminal trials it is the bounden duty o the Courts to make every possible reasonable endeavour that justice is pot only done to the accused but seen to be done and no prejudice, under an circumstance is caused to him and it was this circumstance only that the case for re-trial was entrusted to the latter Sessions Judge because the former had already expressed his opinion.
6. In the result, the revision fails and is hereby dismissed.
S. G. D.