1. ' MAMOON KAZI, J.---Leave has been sought in respect of the judgment of the Lahore High Court, dated 18-5-1994, whereby revision filed by respondent Sagheer Ahmad against the judgment of acquittal passed by the learned Sessions Judge, Gujrat, in favour of the respondents has been reversed, and the case has been remanded to the learned Sessions Judge for retrial.
2. ' Respondents Muhammad Abbas and Muhammad Ashraf had been charged before the learned Sessions Judge, Gujrat, under section 302/34, P.P.C., for causing death of Munir Ahmed near Girls School, Kunjah, Tehsil and District Gujrat. It had been alleged that on 19-4-1990, at about 7-00 p.m.
3. When the said deceased was going, accompanied by his brother Sagheer Ahmad and his cousin Muhammad Mauzam, to the house of one Muhammad Saleem alias Chima Machi and when they had reached near the said Girls School, the said respondents who were armed with Chhuris suddenly appeared. Respondent Abbas while raising a Lalkara, aimed a Chhuri blow towards the deceased which hit him on the left side of his abdomen. Respondent Ashraf also gave a Chhuri blow to the deceased which landed on the left side of his chest. Munir fell down. Complainant, Sagheer Ahmed and P.W. Muhammad Mauzam then went forward to rescue Munir but both the respondents ran away with their Chhuris.
4. ' The motive given by the prosecution was that about four or five days prior to the occurrence an exchange of hot words had taken place between the deceased and the respondents which had caused annoyance to them.
5. ' F.I.R. In respect of the incident was lodged by P.W. Sagheer Ahmad at about 9-00 p.m. By a statement made to A.S.I., P.W. Muhammad Afzal Shah, upon which a formal F.I.R. (Ex.PF/1) was registered at Police Station, Kunjah, at 9-50 p.m.
6. ' The case was investigated by P.W., A.S.I., Muhammad Afzal Shah, who recovered blood-stained earth from the scene of occurrence vide memo. (Exhs.PH). On the next day at about 5-30 a.m., Munir died in the Hospital.
7. ' The A.S.I. Then prepared injury statement of the deceased and inquest report (Exh.PK and PL) and despatched the dead body to mortuary for autopsy. He also secured the blood-stained clothes of deceased under recovery memo. (Exh.PE). On 20-4-1990, the A.S.I. Arrested both the respondents and on 24-4-1990, both of them led the police to their respective houses and produced blood- stained Chhuris which were secured vide recovery memo. (Exhs. PC and PD). All the said articles, recovered by the police were sent to the Chemical Examiner and the report received from him in respect therefore was positive.
8. ' The deceased after receiving of the said injuries was examined by P.W., Dr. Allah Rakha, who found the following injuries on his person:-- "(1) Penetrating stab wound spindle shaped measuring 4 x 2 cm on the left side of front of chest lower 2 cm. Lateral to the mid of the sternum.
(2) Penetrating stab wound measuring 6 x 3 c.m. x DNP which was spindle shaped on the left hybocandrium."
9. ' Both the injuries were found to be dangerous to life by the doctor. The deceased was kept under observation in the Emergency Ward of the Hospital as his condition was stated to be serious with blood pressure not recordable. However, Munir Ahmad died in the Hospital the next day. Thereafter, his post-mortem was conducted by Dr. Arshad Mahmood. Sharif (P.W.7), the same day at 1-00 p.m.
10. He found two additional injuries on his person besides the injuries earlier noticed by Dr. Allah Rakha, which had been caused by stitches received by the deceased in the Hospital.
11. ' The case of the prosecution was supported by the evidence of two eyewitnesses, (P.W.10) Sagheer Ahmad brother of the deceased and (P.W.11) Mauzam, a cousin of the deceased. This evidence was further supported by that of (P.W.3) Shabir Ahmad, another brother of the deceased in whose presence the police had recovered blood-stained Chhuris on pointing out of the respondents.
12. ' Respondent Muhammad Abbas in his statement before the learned trial Court claimed to have been falsely implicated in the case. According to him, one Income Tax Practitioner, Aslam, who was a Councillor and a party to a suit filed by the mother and sisters of the said respondent, was on inimical terms with the respondent's family. The respondent also claimed enmity with one Mian Saeed another Councillor of Kunjah who was a partyman of the deceased. Therefore, both Mian Saeed and the said Aslam had jointly manoeuvered to bring the case against both the petitioners.
13. More or less, similar statement was made by petitioner, Muhammad Ashraf before the learned trial Court. They also produced (D.W.1) Maseta in their defence.
14. ' The learned trial Court, however, came to the conclusion that the occurrence might have taken place in darkness which cast doubt on the identification of the assailants by the two eye- witnesses. It further found that the two eye-witnesses who were inimical to the petitioners might have fallen into the hands of the enemies of the petitioners and therefore, they could not be considered as reliable and thus their evidence required corroboration. Consequently, benefit of doubt was given to the petitioners by the learned trial Court.
15. ' The learned Judges of the High Court while disagreeing with the conclusions drawn by the trial Court, however, took the view that the incident occurred at the time when darkness was only about to set in and therefore, it had been erroneously held by the learned trial Court that the assailants could not have been clearly identified by the eye-witnesses owing to darkness and their evidence required corroboration. The learned Judges found the eyewitnesses completely independent and disinterested so far as the present petitioners were concerned. The learned Judges also found that the evidence in regard to recovery of blood-stained crime weapons had been erroneously brushed aside by the learned trial Court on whimsical grounds. In regard to the time of occurrence given in the F.I.R., the opinion expressed by the High Court was that the members of the deceased's family including the complainant must have been first concerned about the serious condition of the deceased, and, therefore, time must have been taken by them in first transporting the injured to the Hospital. It was only after that when the matter must have been reported to the police.
16. Therefore, the time of occurrence given by the witnesses did not necessarily indicate that the occurrence took place in complete darkness. Therefore, according to the learned Judges of the High Court, there was no question of the witnesses making any mistake in respect of the identification of the culprits. Further, according to the learned Judges, no defmite evidence had been produced before the learned trial Court by the petitioners to establish their enmity with the eye-witnesses. The learned Judges while referring to the evidence of D.W. Maseeta further opined that the motive part of the story narrated by the defence witness showing that the deceased and the petitioners were not on good terms, in fact lent support to the prosecution case rather than that of the defence. However, the evidence of the eyewitnesses and medical evidence and the recovery of blood-stained Chhuris on the pointing out of the petitioners was found to be sufficient to bring home the guilt to the petitioners. Consequently, retrial was ordered in the case.
17. ' Learned counsel for the petitioners, has firstly argued that the learned trial Court had given unassailable reasons for allowing benefit of doubt to the petitioners. Secondly, although, the learned High Court could order only retrial in the case while granting the revision application filed by respondent No,1, but the case was remanded to the learned Sessions Judge, Gujrat, only for a fresh decision which was to be based on the same evidence earlier recorded by the Court. Such procedure, according to the learned counsel, was not warranted by law since observations have already been made by the High Court in respect of the evidence which leaves very little room for the Sessions Judge to give a judgment different from what has already been observed by the High Court in the impugned judgment. Reliance has also been placed upon the case of Longendranath Jha and others v. Shri Polai Lal Biswas (AIR 1951 SC 316), wherein on a revision filed by the complainant against acquittal of the accused, the learned Judges of the High Court on reappraisal of evidence recorded in the case disagreed with the findings of the Sessions Judge on the ground that they were perverse and displayed a lack of true perspective. It was observed by the Supreme Court that: "This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court could in the absence of any error on a point of law, re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterising the judgment of the trial Court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of the evidence in the case.
18. That is what the learned Judge in the Court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal. No doubt, the learned Judge formally complied with subsection (4), by directing only a retrial of the appellants without convicting them and warned that the Court re-trying the case should not be influenced by any expression of opinion contained in his judgment. But there can be little doubt that he loaded the dice against the appellants and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.
19. It may be pointed out that interference with the order of acquittal is generally refused, unless the judgment of the trial Court is found to be foolish or perverse or a procedural error in the trial or a serious illegality or irregularity is shown to have been committed, or the appellate Court is of the opinion that a serious miscarriage of justice has resulted from the acquittal or there appears to be any other similar ground. However, the powers of the High Court in this regard are unfettered and notwithstanding the fact that in the exercise of revisional powers by the High Court under section 439(4), Cr.P.C. a finding of acquittal cannot be converted into that of conviction, nevertheless interference can be justifiable on the ground that the finding of acquittal is based on the grounds which are against the weight of evidence in the case which has consequently resulted into failure of justice. In the present case, evidence was already recorded by the learned trial Court but On reappraisal of such evidence the High Court has come to the conclusion that the finding of acquittal could not be sustained upon such evidence. It is pertinent to point out that under such circumstances the trial Court is not required to record evidence in the case de novo but the judgment already recorded by it may be reconsidered. This does not mean that the trial Court must necessarily reverse its earlier finding and must bring a finding of conviction in the case, but retrial in this case would only mean that in case the evidence in the case has already been recorded the trial Court may only record a fresh finding after reappraisal of such evidence. No doubt observations on the merits of the case have already been made and the Sessions Judge, in view of such findings may find himself embarrassed in case any deviation from such findings was found by him to be necessary after reappraisal of the evidence by him, but that alone can not persuade this Court to reverse the judgment of the High Court, if otherwise the view taken by it is not incorrect. The judgment of the Supreme Court of India cited by the learned counsel before us, although, may support the contention of the learned counsel for the petitioners obliquely, but each case must be decided on its own merits. The reasons stated by the trial Court for discarding the material evidence relied upon by the prosecution in the case although, requires reconsideration, but in cases such as this it would be highly unfair to conclude that the trial Court would, be completely bound by the findings arrived at by the High Court because the view taken by the latter is also tentative leaving it completely to the trial Court to arrive at its own independent conclusions.
20. Consequently, although, we are not inclined to reverse the judgment of the High Court, but nevertheless let it be made clear that the trial Court by which the case may be received on remand would be completely free to express its own opinion in regard to the guilt of the petitioners and the observations made by this Court or the High Court in respect of the evidence in the case may be overlooked by it.
21. ' Subject to the above observations, leave to appeal is refused and the petition is dismissed.