' This revision petition is directed against the judgment, dated 17-8-1981 of the learned Sessions Judge, Attock, whereby he maintained the conviction of the petitioners under section 307/34, P.P.C.
And their sentence of four years' R.I. Plus fine of Rs,1,000 each; or in default six months' R.I. Awarded by the learned Magistrate, vide his judgment, dated 29-4-1981. The co-accused of the petitioners were, however, acquitted.
2. The facts essential for the decision of this revision petition are that the petitioners and their co- accused were put on trial under section 307/149/148/452, P.P.C. Before a magistrate Section 30, Pindigheb, who vide his judgment, dated 4-12-1980, acquitted them of the charges. Sher Shah complainant filed a revision petition against the acquittal of the petitioners and their co-accused before the learned Sessions Judge, Attock, who vide his judgment, dated 24-3-1981, after going through the record and considering the arguments, opined: "....It is a case of not only of misreading of evidence but also non-appreciation of evidence. The omissions pointed out by the petitioner's counsel are so glaring that they cannot be easily ignored."
' The learned Sessions Judge, therefore, accepted the revision petition, set aside the impugned judgment, with the direction that "all the respondents shall be retried." He further directed that "As Mr. Muhammad Akmal Qureshi M.S. 30 Pindigheb has already expressed his opinion on merits, the case shall now be tried by Rana Bashir Ahmad, M.S.30, Attock."
3. After this order, the case was taken up by Rana Bashir Ahmad, M.S.30. He questioned the petitioners and the co-accused whether they wanted to lead defence evidence or not. On the refusal of the petitioners and the co-accused to lead defence evidence, the learned Magistrate vide his judgment dated 29-4-1981, convicted and sentenced the petitioners, as indicated above.
4. The petitioners appealed whereas the complainant filed a revision petition for the enhancement of their sentence and for retrial of the acquitted accused. Both the matters came up before the same learned Sessions Judge, who had earlier ordered re-trial. He vide his judgment dated 17-8- 1981, dismissed both the appeal and the revision petition.
5. In appeal before the learned Sessions Judge, a legal objection of fundamental importance was raised that his order, dated 24-3-1981, was not complied with by the learned Magistrate in letter and spirit, because no fresh evidence was recorded by him. The learned Sessions Judge, repelled this objection with the following observations:-- "The order of re-trial passed by this Court in the circumstances of the case did not mean de novo trial, because the first trial Court had already recorded the entire prosecution evidence... The second trial Court, therefore, did not commit any irregularity or illegality if it did not take recourse to de novo trial and proceeded to take up the case from the stage of argument after ascertaining the option of the accused whether or not to produce further evidence in their defence."
5-A. Learned counsel for the petitioners strenuously contended that the impugned judgments suffer from the legal defects referred to above, because, the retrial in the circumstances of the case meant that the trial Court should hold the trial afresh and thereafter pass the order of acquittal/conviction in accordance with law. As the word retrial has not been defined in the Code of Criminal Procedure, the Court must rely upon the dictionary meaning of the word retrial. Learned counsel referred to the ordinary dictionary meaning of the word retrial. In Black's Law Dictionary (5th Edition), retrial, means:- "A new trial of an action which has already been once tried."
' He also placed reliance on Said Muhammad v. The Crown PLD 1954 Lahore 139 and contended that where the appellate Court ordered re-trial and the Magistrate asked the accused whether they wanted to be re-tried and on their declining de novo trial, convicted them on evidence recorded in previous trial, the proceedings were not a re-trial. He further submitted that in view of the dictionary meaning mentioned above, the trial Court was bound to hold a fresh trial and after that he could pass either the order of acquittal or conviction in accordance with law.
' Learned counsel next contended that the learned Magistrate after the revisional order, dated 24- 3-1981, was not in a position to judiciously assess the evidence brought on the record, in view of clear observations made by the learned Sessions Judge, while upsetting the order of acquittal after discarding the appreciation of evidence made by the trial Magistrate in the first instance. Thus subsequent trial on the same evidence was negation of fair trial by the latter Magistrate; hence the trial stood vitiated due to this legal lacuna which is not curable under the provisions of section 537, Cr.P.C.
' Learned counsel further submitted that as the learned Sessions Judge has already expressed his opinion on the evidence already on the record so forcefully, therefore, in order to avoid any reasonable apprehension in the mind of the petitioners that they would not have an impartial decision from the learned Sessions Judge and also on the principle that "justice must not only be done but must manifestly be seen to be done", he should not have heard the appeal of the petitioners after the decision of the latter Magistrate.
6. Learned Law Officer appearing for the State has supported the impugned judgment due to this fact that in view of the peculiar circumstances of this case, what the learned Sessions Judge while ordering retrial meant was that the evidence already brought on the record, in conformity with law, should be reappraised and the judgment may be written in accordance with law. Placed reliance on Muhammad Ashraf Khan v. Mst. Resham Bi PLD 1969 Azad J&K 12.
7. Learned counsel for the complainant has urged that in the present case, no illegality was committed in the mode of trial, hence re-trial did not mean a fresh or de novo trial as contemplated under section 350, Cr.P.C. And if at all any illegality occurred in the mode of trial that stood cured under the provisions of section 537, Cr.P.C. In nutshell he contended that what the learned Sessions Judge meant was that the latter learned Magistrate, after re-appraisal of evidence already on the record should re-write a judgment.
' With respect to the bias, learned counsel submitted that the learned Sessions Judge, while directing retrial has not expressed himself in such a strong manner which would amount to a direction to the learned Magistrate to convict the petitiones on the same evidence, hence the question of bias does not arise in the circumstances of the present case. Even the petitioners did not take up this objection before the appellate Court that they had no confidence in the learned Sessions Judge due to commanding expression used by him regarding the quality of evidence while ordering retrial, hence they are legally debarred from taking up this objection before this Court at this belated stage.
8. I have considered the respective submissions of the learned counsel for the parties carefully. I find lot of force in the submission of the learned counsel for the petitioners that the word 're-trial' must be given its ordinary dictionary meaning, as it has not been defined in the Code of Criminal Procedure. The cardinal principle of interpretation of the Statute is that, if the word is not defined' a in the Statute itself, then that word must be given its ordinary dictionary meaning.' As according to Black's Law Dictionary (5th Edition), retrial means "a new trial of an action which has already been once tried", thus in the present case, it meant de novo trial by the latter Magistrate.
' In Said Muhammad v. The Crown PLD 1954 Lahore 139, the learned Judge observed:-- "But in this case the order was not that the retrial should take place from any particular stage of the case and in the absence of any such order, the retrial should have been of the whole case."
Respectfully following the above observations, I hold that the latter Magistrate did not comply with the order of the learned Sessions Judge, hence there had been no re-trial in this case and the subsequent proceedings stood vitiated as a whole due to this incurable legal defect.
' The case of Muhammad Ashraf Khan (supra), relied upon by the learned Law Officer and the learned counsel for the complainant is distinguishable on facts, as in that case the defect was with respect to the tenor of the judgment, because it was not in conformity with the provisions of section 367, Cr.P.C., which requires that the judgment must contain points for determination, the decision thereon and reasons for the decision. It was in these peculiar circumstances that the learned Judges held that re-trial would mean the rewriting of the judgment on the same evidence without de novo trial. In the present case, there was no defect in the judgment, on the contrary, the learned Sessions Judge was not satisfied with the reasons given by the former trial Magistrate while acquitting the petitioners, hence re-trial in the present case, meant de novo trial.
9. I also find substantial force in the submission of the learned counsel for the petitioners, that due to the forceful expression used by the learned Sessions Judge regarding the quality of the prosecution evidence while setting aside the order of acquittal and ordering re-trial, no choice was left with the latter trial Magistrate to independently reappraise the evidence as a fair-minded judicial officer. In the present case, the learned Sessions Judge while ordering re-trial after discussing the evidence, observed, that the decision of acquittal has resulted into miscarriage of justice, hence in view of the application of the legal maxim "that justice must not only be done but must also appear to have been done", the learned Sessions Judge should not have heard the appeal of the petitioners in this case, hence the judgment of the appellate Court is a judgment of a biased judge and nullity in the eye of law. Reference in this connection be made to Anwar v. The Crown PLD 1955 FC 185. In the circumstances, the orders of the Courts below due to the legal defects of such magnitude are not curable under section 537, Cr.P.C. And are not sustainable.
10. This brings me to the question whether in the present case, retrial should be ordered or not. I find that the petitioners were involved in this case in the year 1979, they have been prosecuting this case since then in different forums and as such they suffered the ordeal of protracted trial, thus no useful purpose would be served by ordering retrial; hence while setting aside the impugned orders and acquitting the petitioners, I refrain from directing retrial in the interest of justice and fairplay.
They are on bail and are discharged from their bail bonds.