In this criminal revision the learned counsel has called in question order of the learned Addl.
Sessions Judge, Pattoki, dated 13.7.2007. The impugned order was delivered on 13.7.2007 from the judgment delivered by the learned Magistrate Section 30, Pattoki, dated 25.5.2007. Both orders relate to F.I.R No, 68/2000, dated 8.2.2000, under Section 377 PPC. The said F.I.R was registered at P.S. Phoolnagar, District Kasur.
2. The learned Magistrate/trial Court convicted petitioner in the above mentioned F.I.R and sentenced him to three years R.I. with fine of Rs, 3000/-. In appeal, the learned Addl. Sessions Judge set aside the order of the learned trial Court but also remanded the case with direction to examine the victim who was not examined as a witness by the trial Court. The learned Addl. Sessions Judge further observed that the victim's deposition was essential for the just decision and he was capable of recording his evidence. In this regard, the learned Addl. Sessions Judge also referred to Article 3 of the Qanun-e-Shahadat. The learned counsel also referred to a report of Chemical Examiner which was available on the judicial file but it was not exhibited by the prosecution.
3. The learned counsel for the petitioner is satisfied as far as reversal of judgment of the trial Court is concerned, but dis-satisfied with order that Sajid, victim be produced before the trial Court to record his statement who was 7 or 8 years old at the time of occurrence. According to the learned counsel, Section 423 Cr.P.C. empowers and Appellate Court to remand a case but does not empower for recording evidence of a witness who was available at the trial stage but was not examined by the trial Court. According to the learned counsel, it would amount to fill the lacunas left by the prosecution, thus, unfair to the accused/petitioner. The learned counsel further submits that even Section 428 Cr.P.C. is not applicable which refers to "additional evidence". According to him, additional evidence means which was not available at the time of trial but has been discovered later on.
4. I have considered the arguments of the learned counsel and also went through the case law relied upon by the learned counsel. As far as Section 428, Cr.P.C. is concerned, in the facts and circumstances of the instant case, it is not applicable. The impugned order was passed by the learned Addl. Sessions Judge as an Appellate Court, hence, the provisions of Section 423 Cr.P.C. are applicable only.
5. In the facts of present case provisions of Section 423(b) (d) need to be read together, Section 423(b), Cr.P.C. empowers Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order him to be "re-tried" by a Court of competent jurisdiction subordinate to such Appellate Court. Section 423(d) Cr.P.C. further empowers an Appellate Court to make any amendment or any incidental order that may be just or proper. Therefore, powers under Section 423 to be read with Section 439 Cr.P.C. are wide and cover many aspects and areas. To remand a case to the trial Court is one of those powers and examination of victim is an incidental order. The learned counsel himself referred to 1975 P.Cr.LJ 1281 (Karachi). According to this judgment, the purpose of remanding a case to trial Court is to rectify the errors such as non appreciation of evidence to avoid miscarriage or failure of Justice and to give further chance to the parties to present their side of the case. The above finding clearly mentions that a chance is to be given to the parties to present their side of the case where failure of justice is noted by an Appellate Court. In the above context, the objection or grievance of the petitioner if entertained would amount to coming in way of one party presenting its side of the case. As far as observation of. the Appellate Court or this Court is concerned, it will not have any effect upon the trial Court while appraising/re-appraising the evidence produced by the parties at the time of trial. According to the Hon'ble High Court mentioned above, it is entirely left to the trial Court after re-trial to reappraise evidence and thereafter give a finding on merits without being influenced either by previous evidence by the Court in its remand order." (1975 P.Cr.LJ 1281).
6. Section 423(b) Cr.P.C. uses expression "HIM" that shows it is the accused person who is sent back to the trial Court for re-trial and it is not the case which is to be re-tried. Once a re-trial/trial is required to be held under the law, parties are to be given full opportunities to present their sides of the case and at the same time Appellate Court is also competent to pass an appropriate order in interest of complete justice within limits of law, of course. To achieve this objective, even enhanced powers can also be invoked under the Code. In the above context, a reference may be made to a Division Bench judgment of this Court reported as 1991 P.Cr.LJ 833. It may also be clarified that order of re-trial is not an order of second trial for the same offence but continuation of the first trial, the result whereof has been declared by the learned Addl. Sessions Judge as in-valid or set aside. For further guidance, PLD 1955 Federal Court 185, Anwar and another Vs. The Crown, may be referred to
7. In the above circumstances and reasons, no prejudice is caused to the petitioner by the impugned order. The parties will be at liberty to advance their version during the course of trial in accordance with law to be supported by evidence. The trial Court shall decide the case on its merits. With the above observation, this criminal revision is dismissed.