By this revision petition, the petitioner Sher Muhammad has called in question the judgment dated 14th December, 1981 of the I1Ird Additional Sessions Judge, Sukkur, whereby the respondents Amir Bux, Dhani Bux and Sabu had been acquitted of the charges under section 302/34, Pakistan Penal Code and section 13-D, West Pakistan Arms Ordinance, 1965.
2. The aforesaid respondents were sent up in Court to face trial for the murder of Noor Hassan, nephew of the petitioner Sher Muhammad. The murder took place on 20th May, 1980, at sunrise time. As the prosecution story of the incident goes, while the petitioner was sitting in his cattle pen, he saw the deceased heading towards Sher. Khan Minor. Soon thereafter the three respondents Amir Bux and Sabu armed with guns and Dhani Bux carrying hatchet suddenly appeared at the scene and threw challenge to the deceased Noor Hassan. Sabu was first to open fire but missed the target namely the deceased Noor Hassan. The second shot which was fired by AR Bux however, hit the deceased, causing him injuries, which proved fatal. The incident was witnessed by Muhammad Bux Ali Hassan besides the petitioner Sher Muhammad. The motive attributed or the murder of Noor Hassan was that about 8 months prior to the occurrence, the deceased was declared 'Kao' having illicit relations with wife of the respondent Amir Bux brother. Although on intervention of their Sardar Allah Bux Jalbani the parties had composed their differences, yet the respondents nursed the grudge which ultimately led them to the commission of the murder of the deceased. The incident was reported to the police by the petitioner Sher Muhammad and after investigation the police placed the respondents on trial, who were acquitted as mentioned above.
3. Admittedly no appeal has been filed from the acquittal of the respondents on behalf of the State.
The petitioner Sher Muhammad who was complainant in the case moved the District Magistrate concerned for issuing a certificate to the effect that the Government had no intention of filing the acquittal appeal but the same was not issued, even though he waited for long. The Advocates of both the parties were heard at great length.
4. The learned counsel for the petitioner raised two contentions firstly, that the trial Court has misappreciated the evidence inasmuch as that it did not take due notice of the evidence of P. W.
Muhammad Bux in arriving at the conclusion that the medical evidence is inconsistent with the ocular evidence and secondly that the trial Court has erred in over looking the evidence of motive as providing requisite corroboration to the ocular evidence.
5. Before examining the points agitated on behalf of the petitioner, I may refer to case law defining the scope for interference with the judgment of acquittal in exercise of revisional jurisdiction. The first case in this regard is of Sh. Abdul Kareem, an Advocate where in the Division Bench of Lahore High Court comprising Muhammad Muneer, C. J. And Muhammad Shareef and Soofi, JJ, observed : "Needless to say that where the Government is not interested and for that reason it has not appealed, this Court will order a retrial only if the case is of such a singularly exceptional character that unless a retrial is ordered a grave and irremediable injustice must be the result, and such result can be apprehended only where the trial has been contrary to some fundamental rule of procedure or where the acquittal is based on a view of evidence which no reasonable judicial officer, anxious to do justice, could possibly take.
6. In another case of Anwar v. Crown . The Federal Court of Pakistan has made the following observations :- "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 re zard 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 in 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 contained 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 of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial are all relevant factors to be duly weighed............Where the legislature itself does not define the limits of or the grounds for the exercise of a discretion, the Courts should not too readily lay down rules to fetter that discretion, and it seems to me that the practice while interfering with orders of acquittal, recording strong findings, as for instance that the judgment of acquittal is perverse or manifestly wrong is to be depreciated, because if these be the only grounds on which an order of acquittal can be interfered with revisional courts will in every case be engaged in determining the preliminary issue whether the error, committed is gross or palpable and the view taken perverse or foolish and not the real question whether the order of acquittal is wrong, and if allowed to stand, would occasion a failure of justice.............What has to be realized in such cases is that the discretion of the High Court, subject to the statutory restrictions mentioned above is undefined, that the High Court though it exercises the powers of a Court of Appeal is not itself a Court of Appeal and that it is responsible to itself alone for the exercise of those powers. A retrial does not contravene the rule against double jeopardy because the order of acquittal is not final and is subject to the provincial Governrnent's right to appeal against it and of the High Court's power to quash it in revision. It is not second trial for the same offence but a continuation of the first trial the result whereof has been declared by the High Court to be invalid."1 2
7. The third case in the series is of Abdul Rashid Khondkar v. Chandu Matbar wherein the Supreme Court has observed as under :- "It is true that the power of revision under the Criminal Procedure Code is exercised by the High Court in a markedly more restricted manner where the order is one favouring the accused than in the case of a conviction. This is based upon the established rule against double jeopardy, which is however, not to, be applied, in our in jurisdiction in any absolute sense, for the Code provides expressly for an appeal against an acquittal and the principles applicable to the exercise of that power are well settled (vide the judgment of the Privy Council in the case of Shoo Swarup 61I A 398) which has been consistently followed in Pakistan, see the cases of Khalid Saigol v. The State PLD 1962 SC 495 and Abdul Majid V. Superintendent and Remembrancer of Legal Affairs PLD 1964 SC
422. The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done in accordance with the law. In particular, full weight must be given (1) to the fact that the appreciation of evidence by the trial Court is based upon the Court having seen and heard the witnesses and (2) that the fact of that Court having given the accused the benefit of any doubt serves to emphasise the need of giving full weight to that principle in the reappraisement of the evidence that is necessitated by the appeal. In revision, the High Court may not reverse an acquittal but it may yet interfere with it in another way, so as so 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 its details and the supporting evidence, had been fairly and fully appreciated by the Court below, and its conclusions were reached in accordance with the basic principles governing the formation of a verdict adverse to an 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 misappreelation, 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 the revisionary 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 degree and finally whether it has had a determinative effect upon the final conclusion. An estimate regarding the probabilities in relation to the allegations of facts forms a necessary step in arriving at such a conclusion."
8. In the 4th case of Feroze Khan v. Ghulam Nab! Khan it was held as follows :- "Particular in cases of revision petitions from an acquittal, where the State has not thought it fit to challenge the acquittal by an appeal, the Courts would be very slow to interfere, unless non- interference would involve an endorsement of a patently unfair order, or one which leads to miscarriage of justice. If the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling, that an alternative view of the evidence might have been taken, would not justify the superior Court in setting aside an order of acquittal...........The governing consideration must always, be whether in relation to the proved facts and circumstances, justice has been done, in accordance with the law."
In view of the above authorities, while exercising powers conferred by section 439, Cr. P. Code in the cases of acquittal following factorsi are to be kept in mind :-
(1) Technically the power of High Court to examine the evidence on which a finding of fact, in a case of acquittal, is based is unlimited, the only limitation being that the discretion to be exercised is in accordance with the dictates of justice and not arbitrary or fanciful.
(2) The attention is to be given to the trial Court's view of the evidence, nature of error committed, the magnitude of the apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused and the chances of conviction and expenses of retrial.3 4
(3) Full weight is to be given to the appreciation of evidence by the trial Court as the said Court has seen and heard the witnesses.
(4) If the view taken by the Courts below is reasonably possible, the feeling that alternative view of the evidence might have been taken would not justify setting aside the order of acquittal,
(5) Proper line of approach is not to stress that order of lower Court is final and unassailable but to ascertain that the evidence has been fully and fairly appreciated by Court below and conclusions reached by it are in accordance with the basic principles.
(6) The power of revision is to be exercised in a markedly restricted manner where the order is one favouring the accused than in the case of conviction.
(7) Interference is to be made not only in the case of orders manifestly wrong or perverse but in appropriate cases even finding of fact could be disturbed.
(8) It is not correct to say that "misappreciation of evidence" is not sufficient ground to interfere with the order of acquittal.
(9) The order of retrial would not contravene the rule against double jeopardsy because the order of acquittal is not final and is subject to the Provincial Governments right to appeal against it and of the High Court's power to quash it in revision.
(10) Where the state has not thought fit to challenge the interference in revisional jurisdiction unless non-interference would involve an endorsement of a patently unfair order or one which leads to miscarriage of justice.
10. If the impugned judgment is examined in the light of above principles, it would appear that the findings of the trial Court are based on correct appraisal of evidence on record. The prosecution case is wholly based on ocular evidence furnished by complainant petitioner Sher Muhammad, P.
W. Muhammad Bakhsh and Ali Hassan. It is admitted that these witnesses are not only interrelated but are also hostile to the prosecution. The learned trial Judge, therefore, rightly looked for independent corroboration before basing conviction on such tainted evidence. According to the learned Judge the only corroborative evidence available to him was the medical evidence but as he found it to be inconsistent with the ocular evidence, he chose not to rely upon the same. It may be stated here that the learned counsel for the petitioner attempted to show that there was no inconsistency between the medical evidence and the ocular evidence. He submitted that the trial Court did not give due weight and consideration to the evidence of Muhammad Bakhsh with the result that it reached an erroneous conclusion in regard to the medical evidence being not in consonance with the ocular evidence. The learned counsel was however unable to show how the evidence of Muhammad Bakhsh would improve the prosecution case vis-a-vis the trial Court's finding in regard to the inconsistency between the medical evidence and the ocular evidence. His only argument was that in view of Muhammad Bakhsh's evidence the possibility could not be ruled out that even though while chasing the deceased the respondents would have fired from behind, yet by the time, the deceased was actually hit, he might have changed the position and the shot might have hit him from the front side. I have read the evidence of Muhammad Bakhsh carefully but I do not find anything in his evidence to draw such inference. Even if the argument of the learned counsel is accepted in this respect, it would follow that it is possible to take an alternative view based on the evidence of Muhammad Bakhsh irrespective of what the other eye. Witnesses have stated. First of all I see no justification to give preference to the evidence of Muhammad Bakhsh. Secondly the order of acquittal cannot be disturbed only because alternative view different from the view taken by the trial Court is possible.
11. Apart from above it may be pointed out that even if the medical evidence is free from inconsistency with the ocular evidence as was noticed by the learned trial Judge, it is not going to help the prosecution to prove the complicity of the respondents with the commission of the crime.
The medical evidence is invariably regarded as an important factor for establishing the cause of deceased's death. It is of absolutely no assistance in determining the identity of the assailants' responsible for inflicting the fatal' injuries.
12. The learned counsel for the petitioner next contended that the trial Court has overlooked the evidence of motive as the requisite corroboration to the eye-evidence. It is not denied that the motive has been proved through the same eye-witnesses whose evidence is in the need of corroboration. It is well settled that corroboration must be of an independent character and must come from an unimpeachable source. Thus D the evidence of motive not being of such status cannot be used to corroborate the ocular evidence. In these circumstances it has been rightly discarded.
13. For above reasons, there is no justification to interfere with the order of the trial Court which is based on sound reasoning and is neither erroneous nor perverse. It is rather in keeping with the principles enunciated above. Even the Government has not deemed fit to question the acquittal of the respondents as no appeal has been filed on behalf of the State from the said order.
Accordingly the revision petition is without any substance which was, therefore, dismissed by short order dated 10th February, 1983, for reasons to be recorded separately. Above are the reasons for the said Order. PLD 1950 Lab. 439 P ID 1955 FC 185 PLD 1964 SC 795 PLJ 1966 SC 424