1. MUHAMMAD MUNIR, C. J.-Criminal Appeals Nos. 51 and 53 of 1953, both by special leave, are directed against an order of retrial made by the High Court of Lahore in exercise of its revisional jurisdiction. There is nothing in the order of the High Court to show that the order of retrial in these cases offends against the rule laid down by this Court in Khairdi Khan v. The Crown (1). The appeals are therefore dismissed.
2. CORNELIUS, J.-In my opinion, these appeals should be dismissed, and for the following reasons.
3. The order in question in each case is one of re-trial, under section 439, Cr. P. C. Passed by a learned Single Judge of the Lahore High Court, upon the following facts. The offences were committed so long ago as the 5th July 1948, and consisted in brief of (a) the theft at night of a bullock and (b) the beating by the accused Khan and six of others of a party which went to remove the bullock when it was found tied in a behak belonging to Khan.
4. The two cases were tried together, though the offences were not part of the same transaction, and ended in conviction, but in appeal, the convictions were set aside and the cases were remanded for trial de novo. The new trials ended in acquittal.
5. The orders of the Magistrate in the two cases are of no great length, for the reason that he chose to decide the case on a priori considerations and not on the evidence. As regards the theft of the bullock which admittedly was found tied at Khan's behak, he mentioned only (PLD 1953 FC 223) that there was reason for the complainants to be hostile towards Khan and (2) that it was unlikely that after stealing the bullock Khan could have taken it only as far as his behak a short distance away. His conclusion appears to have been that the bullock was "planted" in Khan's behak by its owners.
6. The judgment in the hurt case first finds that the allegation of theft of the bullock was "slightly doubtful" while the theory of planting was "slightly plausible". As to the beating the finding is as follows:- "Now the question is that how the fight started That I have already discussed above, that the P. Ws.
7. Wanted to get the bullock through police, which they had, in my opinion, planted on the accused.
8. The P. Ws. Therefore had no right to go to the house of Khan accused collectively in this manner and annoy him. I therefore, considering the above feel this the P. Ws. Who went out of their way to implicate Khan accused and others and thus met with this fate."
9. The District Magistrate having refused to recommend an appeal, petitions in revision were made in the High Court, to have the acquittal set aside. In this mode, the maximum relief that could be obtained was an order for re-trial, as it was not open to the High Court to convert the findings of acquittal into findings of conviction. The learned Single Judge ordered re-trial of both cases, stating the following grounds:-
(1) the defence story was "on the face of it unlikely of occurrence";
(2) that the ground for inclining in favour of the theory of "planting" was devoid of reason; and
(3) that the conclusion "that a group of three persons going armed with the object of delivering an attack can return with sixty injuries on them without themselves inflicting a single injury" was "at once foolish and perverse".
10. Leave to appeal was granted on the main contention that the power of ordering a re-trial under section 439, Cr. P. C. Was not rightly invoked, and its exercise was "in the circum--stances unwarranted and unjustified." Reference was made to certain precedent cases from the Supreme Court of India and the Lahore High Court. In one of these cases, viz., "Partab Singh v. Harnam Singh (I L R 1936 Lah. 125)" it was stated, with reference to the power of ordering re-trial of a case, under section 439, Cr. P. C. . . . . "the Court seldom exercises its discretion except as laid down in a number of rulings, namely, that an order of acquittal will not as a rule be interfered with merely because the High Court disagrees with the finding of the Magistrate. It is only when the record is incomplete, or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere in such cases."
11. These are words of limitation, and while entering a caution against the imposition of restrictions upon an unfettered discre--tion conferred upon a Court by statute. I must observe that the order of the learned Single Judge in the present cases is strictly within the intent of these words. For the a priori reason--ing adopted by the trial Court is indeed "manifestly wrong and perverse". To say, on the one hand, that the bullock was planted on Khan, in order to make mischief for him, and on the other that the complainants allowed themselves to be so severely beaten in an attempt to secure the restoration of the animal, clearly involves improbability through inconsistency. The Magistrate's conclusion that the beating of the complainants was justified by their own conduct is clearly not founded on anything derivable from the provisions of the law relating to the defence of either person or property. It is, in a sense, fortunate that B neither the Magistrate, nor the learned Single Judge, in making their respective orders touched upon the evidence in the case. In effect, the order of the learned Single Judge merely eliminates the extraneous and conjectural basis upon which the final Conclusions of the Magistrate were founded, and leaves the evidence untouched for consideration de novo by the Magistrate who will conduct the fresh trials.
12. The position might have been otherwise had an appraisement of the evidence been attempted by the learned Judge in his order directing re-trial. I mention the point here, because in the course of the argument, reference was made to the judgments of this Court delivered in the case of Khairdi Khan. That, however, was a case of an appeal from an appellate judgment of the Lahore High Court, confirming a conviction recorded by a Sessions Judge, in a case which was re-tried in consequence of an order of re-trial made by a learned Single Judge of the same High Court, in revision against an order of acquittal pronounced at the first trial. In his separate judgment, Sir Abdul Rashid, as Chief Justice of Pakistan, held that the case "according to the latest Full Bench decision of the Lahore High Court, was not one in which re-trial could have been properly ordered."
13. This con--clusion was founded upon the following considerations:- "The trial was not contrary to any fundamental rule of procedure, and the acquittal was not based on a view of the evidence which no reasonable judicial officer could have taken."
14. In a separate judgment, my brother Shahabuddin and I preferred to commence our examination of the case from the point of view of the prejudice which had actually resulted to the accused and to the interests of justice, from the order for re-trial made by the learned Single Judge. We concluded that, as a result of this order, the Sessions Judge who re-tried the case, and adopted in all respects, the findings on the evidence which had been recorded by the learned Single Judge, and had ignored all the considerations arising out of the facts, evidence and circum--stances of the case which had been canvassed in the first judgment of acquittal. This had resulted from the Sessions Judge approach--ing the case with a biassed mind, and had the effect of vitiating his judgment.
15. The learned Chief Justice (Sir Abdul Rashid) agreed with this view, and with the further conclusion that the flaw was not of a nature that could be cured by re-hearing of the case in appeal. The effect of this judgment, as laying down a rule of law which is binding on all the Courts in Pakistan, must be confined to these matters.
16. The opinion of the learned Chief Justice (Sir Abdul Rashid) that the case was "not one in which re- trial could properly have been ordered", although it is entitled to the highest respect as befits the high authority and great experience of the distin--guished Judge by whom it was expressed, does not possess the character of "law laid down" by this Court in the precedent case, and would appear not to be binding in a future case on the same facts. So far as concerns the present case, there is nothing in the grounds upon which the opinion was expressed in the precedent case, which could be thought to attract the same opinion to the present facts. The order for re-trial is intra vires and made in furtherance of justice.
17. SHAHABUDDIN, J.-I agree that these appeals should be dismissed, for the reasons appearing in the judgment of my brother Cornelius, to which I have nothing to add.