This is a writ petition filed by Sultan and eight, others, petitioners, for a declaration that the judgment dated 17th December, 1979 passed by a learned Additional Sessions Judge of Sargodba in revision be declared as illegal and without lawful authority and that the same be quashed.
2. The brief facts of the case are that Abdul Rehman Bajwa, respondent No. 2, registered a case vide F. I. R. No. 137 dated 21st June, 1976 at Police Station Sillanwali against Sultan and others, petitioners No.1 to 9 and three others under section 307/44/148/149/109, P. P. C. In respect of criminal trespass and attempt on the life of Abdul Sattar. After investigation by the police, a challan was submitted against the petitioners under the said sections and the petitioners were tried and acquitted by Munir Mubarik Khan, Magistrate Section 30, Sargodha, on 31st July, 1979. Being aggrieved by the said judgment respondent No. 2 preferred a revision petition before the Sessions Court which was heard by Sardar Ghulam Farid, Additional Sessions Judge, Sargodha, who, by his judgment dated 17th December, 1979, accepted the revision petition, set aside the acquittal of the petitioners and sent back the case for retrial to the court of Mr. Ahmad Yar Lah, Magistrate Section 30, Sargodha, before whom the cross-complaint of the petitioners was then pending. Being aggrieved by the said judgment, the petitioners preferred the present writ petition before this court for the quashment of the said judgment, which petition is now before me for disposal.
3. The learned counsel for the petitioners has contended that the learned Judge did not apply the correct principles in accepting the revision petition and ordering the trial of the present case as there was no illegality or any defect in the mode of trial which occasioned miscarriage of justice. In this connection Guardas Singh v. Emperor (40 Cr. L J 186), The Crown v. Jaswant R.I & Co. And another (I L R 5 Lah. 404), Aminul Haque v. Crown (PLD 1953 FC 63), Abdul Rashid Khondkar v.
Chandu Mathar and 15 others and the State (PLD 1964 SC 795) and Yusofali Mulla Noorbhoy v. The King (PLD 1949 P C 180) were cited. In this connection, learned counsel submitted that the trial Magistrate acquitted the accused on a number of grounds, namely, that the possession of the disputed land was not delivered to the complainant party on 15th June, 1976 as alleged by the prosecution but that with the connivance of revenue staff, the complainant party managed to get an entry recorded, regarding the delivery of possession, that the complainant party in order to illegally take possession of the disputed land committed criminal trespass and assaulted Gamma- accused; that Gamma-accused acted in the right of self-defence of his property in causing injuries to Abdul Sattar P. W ;that the prosecution witnesses were admittedly inter-related and being involved in a chain of litigation with the accused, were inimical to the accused ; that the two admittedly independent witnesses, namely, Saleh Muhammad and Muhammad Alam, were not produced and that a presumption could be drawn that had they been produced they would have deposed against the prosecution ; and that the version of the prosecution was partly belied by the investigating Agency who found Latif and Tufail culprits, ~ who were named by the complainant in the F. I. R. As innocent, which findings were borne out from the evidence on the record and could not be said to be perverse or illegal. Learned counsel also submitted that the learned Additional Sessions Judge set aside the trial Court's order on the following grounds, namely, that the propriety of the law demanded that both the cases filed against the petitioners and the complaint case filed by one of the petitioners against the complainant party should have been decided by the trial Court at the same time that the judgment of the trial Court was silent as to the merits of the evidence of Abdul Sattar, Abdul Rehman and Muhammad Sharif eye-witnesses, that the trial Court had fallen into crror by raising a presumption against the prosecution for non-production of Saleh Muhammad and Muhammad Alam P. Ws. Though it was a fundamental principle of law that the prosecution was not bound to produce all the witnesses, that the view of the trial court in relying on the police investigation which disclosed that some of the assailants named were innocent was not tenable in law and that the Urdu statement of Lala petitioner recorded under section 342, Cr. P. C.
Did not contain the signatures of the Presiding Officer and, therefore, could not be admitted to be a statement duly recorded in law. As regards the propriety of two cross---cases being decided by the trial court at the same time, learned counsel submitted that there was no hard and fast ruling in this respect and that they could be tried by different Courts separately. In this connection, learned counsel for the petitioners relied upon Muhammad Sadiq v. The State and another (PLD 1971 SC 713). It was also submitted that neither respondent No. 2 nor the petitioner complainant bothered to apply to any of the trial Court for the trial of both the cross-cases together by the same Court and that, therefore, it did not lie in the mouth of respondent No. 2 to assert that both the cross-cases should have been tried together by the same Magistrate. As regards the other matters, the learned counsel submitted that the whole attempt on the part of the learned Additional Sessions judge was to expose the petitioners to a further ordeal and expenses of a retrial in order to enable the prosecution to supplement the deficiency of the prosecution case and that no illegality or defect in the mode of trial was pointed out or shown which had occasioned a miscarriage of justice, to enable the learned Additional Sessions Judge to order a retrial of the petitioners.
4. The learned counsel for respondent No. 2, who strongly opposed the petition, submitted that the impugned order of the learned Additional Sessions Judge was correct as the learned trial Magistrate had not discussed the ocular account and that in any case as the impugned order was not without jurisdiction, the same could not be in referred with in writ jurisdic--tion merely because the same was illegal or erroneous. In this connection Muhammad Hussain Munir and others v.
Sikandar and others (PLD 1947 SC 139) was cited. It was also submitted that propriety demanded that both the cross-cases regarding the same occurrence should have been decided by the same Court together. In this connection, learned counsel for the respondent relied upon Abdul Hussain and others v. The State (1968 P Cr. L J 300) and Nezamat Ali v. The State and another (1970 P Cr. L J 338). In the light of these factors, the learned counsel prayed that the writ petition may be rejected.
5. I have given my anxious consideration to this case. It cannot be denied that there were two cross-cases before two different Courts relating to the same occurrence, one registered by respondent No. 2 against the present petitioners, which was decided by Munir Mubarik Khan, Magistrate Section 30, Sargodha, on 31st July, 1979 in favour of the petitioners, and the other (being a private complaint) lodged by one of the petitioners, against respondent No. 2 and others which is still pen--ding. It cannot be denied that neither of the opposing parties took any steps to have the two cross-cases heard and tried by the same Magistrate. In these circumstances the contention of respondent No. 2 before the learned Additional Sessions Judge, Sargodha, in revision that propriety demanded that both the cross-cases should have been tried together by the same Judge.
Appears to be far-fetched. In this connection it cannot be forgotten that the private complaint which was still pending when the revision petition was being heard was not that of respondent No. 2 but of the petitioners. If anybody had a right to complain, it were the petitioners and not respondent No. 2. How this factor was taken into consideration by the learned Additional Sessions Judge as weighing strongly with him to set aside the acquittal, on the basis that an impor--tant principle of law had been violated in the particular case, appears to be astonishing. It hardly lay in the mouth of respondent No. 2 to assert such an argument considering that the private complaint was not filed by him and he had not earlier taken any steps to move that the two cases be heard and tried together. As held in Muhammad Sadiq v. State and another, it is not an absolute rule that both the cross-cases should be tried side by side by the same Judge and judgment should be announced in both after conclusion of the two cases. Each case has to be decided according to its own requirements. As regards the other masons recorded by the learned Additional Sessions Judge for setting aside the acquittal of the petitioners, the same appear to be inconsequential. The learned trial Magistrate came to a definite conclusion on the basis o evidence recorded that the possession of the disputed land was not delivered I to the complainant party on 5th June, 1976 by the revenue staff, as alleged by the prosecution, but that the said entry had been prepared on 30th September, 1976 in connivance with the revenue staff. As a result of this finding, tire learned trial Magistrate rightly concluded that the complainant party was the aggressor and that Gamma petitioner had acted in exercise of the right of private defence of property in causing injuries to Abdul Sattar P. W.
1. In the light of this finding, it mattered little whether the ocular account of Abdul Sattar P. W. 1, Abdul Hameed P. W. 2 and Abdur Rehman P. W. 3 was or was not considered in detail.
The fact that the learned trial Magistrate noted with apprehension that Saleh Muhammad and Muhammad Alain P. Ws. Who were independent persons, had not been produced and, therefore, a presumption should be drawn against the prosecution that had they been so produced they would not have supported the prosecution case, is a proper finding in the circum: stances of the instant case. 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 the prosecution was not bound to produce all the evidence, is unintelligent and misconceived. The other observations made by the learned Additional Sessions Judge are on specious matters. In fact the whole exercise by the learned Additional Sessions Judge was motivated, it seems, to place the petitioners to the further ordeal and expense of a retrial in order to enable the prosecution to supplement the deficiency in their case. As held by the Federal Court in Aminul-Haque v. Crown and by this court in g The Crown v. Jaswant R.I & Co. And another such a course cannot be permitted. It has already been held by the Federal Courts the Supreme Court and this Court that unless it can be shown that the trial is cont--rary to any fundamental rule of procedure or there has been a grave defect in proceedings which has occasioned a miscarriage of justice or the trial itself is illegal or the acquittal is based on a view of the evidence which no reasonable judicial Officer could have taken in the case, retrial cannot be ordered. If any authority is required for this view, then Khaidi Khan and others v. The Crown (PLD 1953 FC 223) Abdur Rashid Khondkar v.
Chandu Mathar and 15 others and the State, Ahmed v. The State (1975 P Cr. L J 1175) and Sher Muhammad v. Muhammad Hussain and another (PLD 1963 Lab. 514) may be referred. The learned Additional Sessions Judge by permitting specious and extraneous circum--stances to influence his mind, violated the very principles on which retrial is ordered, and when principles have been settled by the superior Courts and are binding on all subordinate Courts, including the learned Additional Sessions Judge, Sargodha. The word "Law" in Article 4 of the Constitu--tion includes not only statute law but also judge-made law and principle settled by the Superior Courts in the exercise of judicial and quasi-judicial powers and the failure of a subordinate judge to exercise his powers is accordance with such settled and well-recognised principles would violative of Article 4 of the Constitution and liable to be struck down by the Superior Courts under Article 199 of the Constitution. If any authority is required for this view, Smith Kline & French of Pakistan Ltd., Karachi v.
A. Rashid P.1 and another (1) may be referred. In these circumstance the petitioners have made out a case for quashment of the impugned judg--ment of the learned Additional Sessions Judge, Sargodha.
6. For the foregoing reasons, this petition is accepted and the judgment of the learned Additional Sessions Judge dated 17th December, 1979 is declared to be without lawful authority and of no legal effect. The petitioners shall be entitled to their costs.
(1) P L D1979 Kar.212