ABDUL REHMAN BAJWA vs SULTAN AND 9 Other

ORDER

ASLAM RIAZ HUSSAIN, J.-This petition is directed against the judgment of the High Court dated 7- 12-1980 accepting the respondent's writ petition.

2. The facts giving rise to the present petition are briefly as follows :-- Abdul Rehman petitioner lodged an F. I. R. Against Sultan and eleven others (of which nine are respondents herein), under sections 148 and 307/447/149, P. P. C., on the 21st of June, 1976, at Police Station, Sillanwali, District Sargodha. The case was investigated and a challan was ultimately submitted against the accused respondents in the Court of Mr. Munir Mubarik Khan, Magistrate Section 30, Sargodha. The accused also filed a private complaint against the complainant party about the same incident, giving a counter version. This complaint is pending trial before another learned Magistrate at Sargodha, namely, Mr. Ahmad Yar Lali.

3. Mr. Munir Mubarik Khan, Magistrate Section 30, acquitted the accused (respondents) vide judgment dated 31st July, 1979. Being aggrieved, Abdur Rehman complainant-petitioner, preferred a revision petition (under section 439-A, Cr. P. C.) before the learned Sessions Judge, Sargodha. The revision was heard by Sardar Ghulam Farid, Additional Sessions Judge, Sargodha, who by his judgment dated 17-12-1979 accepted the same, set aside the acquittal of the accused respondents and remanded the case for retrial to the Court of Mr. Ahmad Yar Lali, Magistrate Section 30, who was also seized of the cross complaint filed by the accused, with a direction that both the cases should be tried together.

Being aggrieved by the said judgment, the accused respondents filed a writ petition in the High Court for its quashment. The learned Judge in Chamber heard the writ petition at length; considered the facts of the case, the evidence on the record and the law applicable thereto, and accepted the writ petition, declaring the judgment of remand passed by learned Additional Sessions Judge to be "without lawful authority and of no legal effect".

4. It is in this background that Abdul Rehman (complainant in the Police case) has filed the present petition for leave to appeal. We have heard the learned counsel for the petitioner, as well as the counsel for respondents/caveators and the learned Assistant Advocate-General, to whom notice had been issued. We have also gone through the impugned judg--ment of the High Court as well as the judgments of the trial Magistrate acquitting the accused/respondents and the judgment of the learned Additional Sessions Judge remanding the case for retrial.

5. f t will be useful to mention here that the learned trial Magistrate gave the following reasons for the acquittal of the accused-

(a) that the possession of the land in dispute had not yet been delivered to the complainant party on 15-6-1976 as alleged by the prosecution, and the land was still in the possession of the accused;

(6) that the complainant party had committed trespass into the land and assaulted Gama accused, who acted in the right of self-defence;

(c) that the prosecution witnesses were inter-related and were involved in litigation with the accused. Hence their testimony could not be relied upon;

(d) that two independent witnesses, namely, Saleh Muhammad and Muhammad Alam were not produced by the prosecution and a presumption could, therefore, be drawn against the prosecution for their non-production under section 114(g) of. The Evidence Act, that if they had been produced, they would have deposed against the prosecution;

(e) that two of the accused mentioned in the F.

1. R., namely, Muhammad Latif and Tufail were declared innocent by the Investigating Agency.

6. On the other hand, after appraising the entire evidence on the record, the learned Additional Sessions Judge remanded the case for retrial on the following grounds-

(i) that the trial Court had not at all discussed the ocular account which had been fully corroborated by the medical evidence;

(ii) that the trial Court was not justified in drawing the aforementioned presumption for the non- production of Saleh Muhammad and Muhammad Alam, as the prosecution was not legally bound to produce all the witnesses cited in the calendar of witnesses;

(iii) that the opinion of the Police is not legal evidence and the learned trial Court had been wrongly influenced by the fact that the Police had declared two of the accused to be innocent ;

(iv) that propriety demanded that both the cases, i.e., the challan case and the complaint case, which related to the same incident and involve the same parties, should be heard and decided by the same trial Court at the same time.

7. The learned High Court Judge also appreciated the evidence on the record and observed that the learned trial Magistrate had rightly concluded that the complainant party was the aggressor and Gama, accused, had acted in the exercise of right of private defence in causing injuries to Abdul Sattar, P. W.

1. He also observed that the finding of the learned trial Magistrate relating to the inference to be drawn from the non-production of two P. Ws. Was a proper one. He also criticised the judgment of the learned revisional Court in the following words "The observation of the learned Additional Sessions Judge that such a finding should not have been made the basis for discarding the evidence of the other eye-witnesses, on the ground that prosecution was not bound to produce all the evidence, is unintelligent and misconceived."

8. From the arguments of the learned counsel for the parties and the submissions of the learned Assistant Advocate-General to whom notice had been given, the points that emerge for decision are :--

(i) Whether the learned Additional Sessions Judge had failed to follow the well established principles relating to the remand of cases for retrial in cases of acquittal, in exercise of his powers of revision under section 439-A, Cr. P. C., and

(ii) Whether the High Court has jurisdiction under Article 199 to interfere and set aside the judgment passed by a criminal Court in exercise of jurisdiction conferred on it by law by declaring it as being without lawful authority arid of no legal effect.

9.. Before we proceed to express our view on the aforementioned questions, it would be proper to mention that prior to the amendment of the Criminal Procedure Code by the Law Reforms Ordinance (XII of 1972), the power of revision in cases of acquittal was exercisable only by the High Court under section 4 9. But the Legislature, in its wisdom, conferred this power, in relation to the accused acquitted by Magistrates, to Sessions Judge. No second revision lies against his orders, which therefore, become final. This section reads as follows :- 439-A, Cr. P. C. Sessions Judge's powers of revision.-(1) In the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by section 439.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Sessions Judge."

10. After the enforcement of revisional power on the Sessions Judges, all revisions against judgments of acquittal recorded by Magistrates lie before them, i.e., before Sessions Judges, while revisions against judgments of acquittal by any other `inferior criminal Court' would still lie before the High Court. The reason for introducing this amendment and curtailing the jurisdiction of the High Courts was obviously that each High Court had become clogged with revision petitions against orders of hundreds of Magistrates throughout the respective Province and speedy disposal thereto was not possible. For the same reasons, similar provisions doing away with the Second Appeals before the High Court have also been made in some other statutes, e.g. Under section 14(1)

(b) of the West Pakistan Family Courts Act, 1964, and the Urban Rent Restriction Ordinance. But it is noticed with some dismay that persons dissatisfied with the judgments o the final Courts under the normal law have taken to challenging them through Writ Petitions under Article 199 of the Constitution, thereby circumventing the law and defeating the obvious intention of the Legislature.

11. The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that, the decision is incorrect, or is not one at which the High Court would have arrived,) does not render the decision without jurisdiction.

12. In Badrul Hague Khan v. The Election Tribunal, Dacca (PLD1963SC704), this Court took the view that admission of inadmissible evidence or the improper alocation of onus etc. Would not necessarily render the impugned order without lawful authority, because, "the proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision. Is incorrect does not render the decision without jurisdiction". The same view was later reiterated in the case of Raunaq A.I, etc. v. Chief Settlement Commis--sioner and others (PLD 1973 SC 236).

12. Again in the case of Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), it has been observed that- "although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is therefore limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hand and will not substitute its own findings for the findings recorded by the tribunal. "

13. In the case of Muhammad Hussain Munir v. Sikandar (PLD 197 4 SC 139), the question was considered at length and it was observed that :- "It is wholly wrong to consider that the above Constitutional provi--sion was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercisable in a fullfledged appeal, which plainly is not the intention of the Constitution-makers."

This view was reiterated in Zulfikar Khan A wan v. Secretary, Industries and Mineral Development Government of Punjab, Lahore and 8 others (1974 SCMR 530), wherein it was held that :- "Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and mere fact that decision is incorrect does not render the decision as without lawful authority. In the instant case, the Tribunal's order was challenged on the ground of being merely erroneous as distinguished from being without jurisdiction."

Again in Begum Wazir Ahmad Industrial Home v. Niaz Begum (PLD 1976 SC 214), it was observed that the High Court could not interfere in exercise of its limited constitutional jurisdiction with the finding of the final departmental authority even if upon the same facts a different view could be taken if there is neither any jurisdictional defect nor any contravention of any fundamental principle in arriving at impugned finding.

14. The legal position in respect of the limits of High Court's Constitu--tional jurisdiction in cases where the order or judgment has been passed by the final Tribunal or Court having jurisdiction are quite clear from the above mentioned judgments. We may observe that all that the High t Court can do while interfering in such matters is to see whether the Tribunal or the Court in question has acted without jurisdiction or acted in violation of the relevant statute or "he law as. Laid down by the superior Courts.

Considering the judgment of the learned Single Judge in the present case in the light of the aforementioned principles, it is evident- that it was not competent for the High Court to have interfered in and se aside the judgment of the final Court, for the reasons given by it, because it is evident from a reading of the impugned judgment that the learned Judge had embarked upon a reappraisal of the evidence on the record and proceeded as if he was hearing an appeal from a subordinate Court.

15. This in itself should be sufficient to decide the matter, but we feel that the second question, i.e., whether the learned Additional Sessions Judge had infact violated any principles relating ' to remand of cases, may also be considered. In this connection it may be pointed out that the powers of revision under section 439 (and 439-A), Cr. P. C. Are much wide in scope than the powers of the High Court in writ petitions. Whereas in Writ Petitions, the High Court can only consider the questions of. Jurisdiction or legality, a revisional Court exercising powers under section 439 o 439- A, C. P. C. Cannot only consider the legality but that of correctness and even of the propriety of any finding, sentence or order recorded or passed by, and the regularity of any proceedings of an inferior Court. In other words, it can not only go into the evidence and reverse the finding of fact but can even consider the propriety of an order or the propriety of adopting, any particular procedure.

16. The principals relating to and the factors to be considered in revisional jurisdiction while remanding cases of acquitted accused for retrial, have been considered by this Court in various judgments. In Anwar and '~E another. v. Crown (PLD1955FC18), it was observed :- "It has been held, technically, therefore, the power of the High Court to examine the evidence on which a finding of fact is based is unlimited, though in adopting that course it will naturally pay due regard to the opinion formed by the acquitting Judge about the witnesses who gave evidence before him and the corresponding disadvantages from which the High Court itself suffers is not having them before it. No artificial rules can, therefore, be laid down defining the classes of cases in which the High Court should or should not order a retrial. The; matter is essentially in the discretion of the High Court and the only limitation on the exercise of that discretion, apart from the legal restriction con--tained in subsection (4) of section 439, is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary, or fanciful. The trial Court's view of the evidence, the nature of the error committed, the magnitude or apprehended mis--carriage or failure of justice, the possibility and extent of prejudice to the accused, the chance of conviction, the expenses of a retrial are all relevant factors to be duly weighed."

It may he mentioned that Khalrdi Khan and others v. The Crown (PLD1953FC223) relied upon by the learned Judge in the High Court was overruled by this Court in the case of An war v. Crown.

17. In Abdul Rashid Khondkar v. Chandu Matbar and another (PLD 1964 SC 795) it has been held by this Court :- "In revision, the High Court may not reverse an acquittal but it may yet interfere with it in another way, so as to ensure that justice is done. Consequently, the proper line of approach would appear to be not by stressing the unassailability or finality of the order of the Court below but by considering whether the case as presented in the details ans the supporting evidence, had been fairly and fully appreciated by the Courts below, and its conclusions were reached in accordance with the basic principles governing the formation of a verdict adverse to ac accused person. To say that "misappreciation of evidence" is never sufficient ground for interfering with an acquittal is to ignore the existence of degrees of misappreciation, from the very grossest forms exhibiting perversity, to the mere ignoring of certain side aspects arising out of a piece of evidence. For the correct exercise of revision--ary power in such cases, and particularly where the revision is brought against an original order of acquittal, the High Court should, in order to ensure that justice is seen to be done, survey the case, in its factual and evidentiary aspects, and should find, where misappreciation of evidence is alleged, what the misappreciation consists in and what is its degrees and finally whether it has had a determinative effect upon the final conclusion, An estimate regarding the probabilities, in rela--petition to the allegations of facts forms a necessary step in arriving at such a conclusion."

18. In Khan and six others v. The Crown (1971 SCM R 664), it has been held that , the High Court will not, as a rule, interefere in, an order of acquittal merely because it disagrees with the finding of the Lower Court. It is only when the record is incomplete. It is manifestly wrong or perverse that the High Court will interfere in such cases.

19. We have already mentioned, in paragraph No. 6 above, the grounds which weighed with the learned Additional Sessions Judge in reversing the judgment of the trial Magistrate ; .Setting aside the order of acquittal and remanding the case for retrial. We feel that he was fully justified in reapprais--ing the evidence and rejecting the findings of fact arrived at by the trial Magistrate and coming to the conclusion that the case was one which required to be retried. We agree with the view expressed by the learned Additional Sessions Judge that the findings arrived at by the learned trial Magistrate were not sustainable on the evidence on the record and had caused grave miscarriage of justice. The learned Additional Sessions Judge had also rightly observed that the trial Court had erred in being influenced by the opinion of the Investigating Officer because, as held by this Court in Moonda v. The State (PLD 1958 SC PAK 275) "the opinion of the Investigating Officer should not be given effect to as it would be a clear violation of all established canon of law in relation to the relevancy of opinions in trials, in criminal cases". The duty of the trial Court is to form its own opinion as to the guilt or innocence of the accused, on the basis of the evidence, on the record. We also feel that the learned Additional Sessions Judge was justified in considering the pro--priety of the mode of trial of the two cross-cases about the same incident, because as already mentioned above, the revisional Court is not only to see the legality or correctness of an order under revision but can also examine its propriety of the procedure adopted by the inferior Court.

20. It may be mentioned here that the learned Judge in Chamber bad relied on Muhammad Sadiq v. The State and another (PLD1971SC713), to observe that since the Criminal Procedure Code is silent with regard to the procedure to be adopted in the trial of cross-cases, it was, therefore, not necessary to have required the two cross-cases to be tried together by the same Court. In the same authority, however, it has been observed that the practice generally adopted by Courts is to try counter-cases side by side, by the same Court, till their conclusion and to pronounce judgment in each ca simultaneously. No doubt the rule is not absolute and there could be cases in which the circumstances do not warrant that the said procedure must be followed, but the rule of propriety which is the basis of the general practice mentioned above is founded on sound principle because if two cross-cases about the same incident between the same parties are tried by different Courts there can be a serious possibility of a conflict in judgments resulting in two different Courts given two diametrically opposite findings about the same incident.

21. The question of the mode of trial of cross-cases. One initiated through a private complaint and the other by Police through a challan, about the same incident, giving different versions and against two different sets of accused persons, was considered by this Court in Nur Elahi v. The State (PLD1966SC708) and it was held that both the cases should be tried by the same Court, one after the other. The procedure prescribed in Nur Elahi's case was later considered by this Court in Zulfikar A.I Bhutto v. The State (PLD 1979SCI). The circumstances in the cases of Nur Elahi's and that of Zulfikar A.I Bhutto were materially different, inasmuch as in the last mentioned case the accused in the private complaint as well as the police case were the same persons. In other words, they were not `cross-cases' in the sense in which the expression in generally understood It was, therefore, held that the procedure prescribed in Nur Elahi's case need not be followed invariably. We may, however, reiterate that propriety demands that whenever the facts or circumstances permit, cross-case, giving two different versions of the same incident and have two different sets of accused, should be tried by the same Court, together. As already observed, the logic behind this view is obvious because if the two cases giving different versions of the same incident are not tried together, there would be serious likelihood of conflict in judgments.

22. It may be mentioned that the learned Judge in Chamber has observed in the impugned judgment that in the present case the private complaint was not lodged by the petitioner- complainant but by the accused persons. There--fore, according to him, be, i.e., the petitioner- complainant, had no right to agitate as to how and in which Court the private complaint lodged by the opposite-party should be tried. While observing this, the learned Judge in Chamber head obviously overlooked the findings of fact given by the learned trial Magistrate (with which the learned Judge concurred in the impugned judgment that the possession of the land in dispute had not yet been delivered to the complainant-party as alleged by the prosecution and that it was the complainant-party which had criminally trespassed into the land and assaulted Gama accused, who had only acted in right of self-defence in causing injuries to Abdul Sattar, P. W. 1, are bound to adversely affect the decision of the private complaint filed by the accused against the petitioner- complainant.

23. Considering that we have heard the counsel of all the parties at length, we convert the present petition into an appeal and for the reasons mentioned above accept the same and hold that the High Court had wrongly exercised its jurisdiction under Article 199 of the Constitution in setting aside the judgment of the learned Additional Sessions Judge. The impugned judgment is, therefore, set aside and the order of retrial passed by the learned Additional Sessions Judge is restored.