' SAIDUZZAMAN SIDDIQUI, J.---The above criminal appeal with the leave of this Court is filed by the appellants to call in question the judgment of a learned Judge in Chambers of Lahore High Court, Multan Bench, dated 26-5-1993, whereby Criminal Revision Application filed by the private respondent/complainant against the judgment of the trial Court dated 8-9-1993 acquitting the appellants in a case under section 302/34 P.P.C., was allowed and the case was remanded to the Trial Court for retrial of the appellants in accordance with the law.
2. Mr. Ijaz Hussain Batalvi, the learned Senior ASC, appearing for the appellants contended that the order of remand passed by the learned Judge in Chambers is not sustainable in law as the judgment of Trial Court in the case was neither perverse nor based on any misreading or non- reading of any material evidence on record. Mr. Batavia further contended that the incident in this case had taken place in the year 1982 while the order of retrial has been passed by the learned Judge in Chambers on 26-4-1995, lost 11 years after the incident. The learned counsel very vehemently argued that in view of the law laid down by this Court in the case of Sultan Khan v.
State (1987 SCM R 237) the order of retrial is not sustainable.
3. The learned counsel for the complainant and the State on the other hand supported the impugned judgment.
4. The appellants were tried under section 302/34, P.P.C. For murder of one Afzal. The prosecution in support of its case relied on the ocular testimony, recoveries, motive and medical evidence. The trial Court disbelieved the ocular testimony, found the recoveries doubtful and motive unsubstantiated and accordingly acquitted the appellants from the charge of murder. The complainant challenged the acquittal judgment of the trial Court before the High Court in a criminal revision application under section 439, Cr. P.C. A learned Judge in Chambers of the Lahore High Court though agreed with the conclusion of trial Court that the recoveries and the motive alleged by the prosecution could not be proved by the prosecution but found the treatment of the ocular testimony in the case by the trial Court contrary to the well-established principles of appreciation of evidence in criminal cases. The learned Judge in Chambers observed that the trial Court while dealing with the evidence of two eye-witnesses in the case, only referred to the criticism of the defence counsel to their testimony and without giving its own evaluation of the evidence in the case concluded by saying that the State Counsel was unable to give any satisfactory reply to the contentions of defence counsel. The learned Judge in Chambers also found that mere relationship of eye-witnesses with the deceased without proof of their enmity with the appellant or a motive on their part to implicate the accused person in the case falsely, was not enough to discard their evidence. On these premises the judgment of the trial Court acquitting the appellants was set aside and the case was remanded to the trial Court for retrial of the accused/appellants in accordance with the law. Leave was granted in the case to consider whether the order of learned Judge in Chambers directing a retrial of the appellants/accused was in accordance with the principles of safe administration of criminal justice.
5. Mr. Ijaz Batalvi, the learned Senior Advocate Supreme Court for the appellants has raised two contentions in support of the above appeal. It is firstly, contended by the learned counsel that the acquittal judgment recorded by the trial Court could not be interfered with by the High Court unless the judgment was found to be foolish, perverse, or based on misreading or non-reading of any material evidence led by the prosecution in the case. The second contention of the learned counsel for the appellant is that in view of the passage of almost 11 years between the date of incident and the judgment, the Court should not have ordered retrial in the case in view of the law laid down by this Court in the case Sultan Khan v State (supra). The above contentions of the learned counsel have not impressed us.
6. It is true that the learned Judge while remanding the case to the trial Court after setting aside acquittal judgment has used the word 'retrial' but if the impugned order is read as a whole it is quite clear that retrial has not been ordered in this case with the object of de novo trial. It is quite clear from the impugned judgment that the learned Judge in Chambers had not disagreed with the conclusion of the trial Court that the recoveries and the motive in this case could not be proved by the prosecution and therefore, this part of the judgment could not be reopened by the trial Court again. It is quite clear from reading of the impugned judgment in the case that retrial in this case was ordered only for the purpose of reconsideration of the ocular testimony led by the prosecution in support of the charge in the case against the appellants. As the retrial in the case ordered by the learned Judge in Chambers did not mean do novo trial of the case or recording of any fresh or further evidence in support of the prosecution case, the case of Sultan Khan v. State (supra) relied by the learned counsel for the appellants will not be of any assistance in the present case. In Sultan Khan's case (supra) the order for retrial of the case after lapse of more than 11 years from the date of acquittal was not upheld in view of the observations made in the case of Ajodha v.
State (1982 PSC 307) wherein it was observed that due to passage of such a long period there was no likelihood of witnesses being available and therefore, retrial in such circumstances would be a futility. No such circumstances exist in the present case. As earlier pointed out by us retrial in the present case by the trail Court would only mean reconsideration of the prosecution evidence already recorded in the case. However, while appreciating the evidence, the trial Court will not be bound by any observation made by the learned Judge in Chambers in the impugned judgment with regard to merits of the case and he will be free to assess and evaluate the evidence of witnesses as if he is deciding the case on the basis of ocular evidence for the first time. This observation is, however, subject to the condition pointed out by us earlier that while appreciating the ocular evidence in the case the trial Court will not reopen the question of motive and recoveries in the case which has been disbelieved earlier both by the trial Court as well as High Court. The power of the High Court to order retrial under section 439, Cr.P.C. Was examined at length in the case of Abdul Latif v. Bagga Khan (PLD 1996 SC 152) by a Bench of this Court in which one of us was a member and it was clearly observed that retrial could be ordered by the High Court from any stage of the proceedings. It will be useful to reproduce here the following observations in the above case:-- "In view of the above discussion, we are of the view that no hard and fast rule can be laid down limiting the power of the Court while ordering the retrial of the case under section 439, Cr.P.C. As observed in the above-referred cases, no limitation having been placed by the Legislature on the power of the High Court while hearing a revision under section 439, Cr. P.C., it would be quite unjustified to read any such limitation on the power of the High Court while ordering retrial in a criminal case. The paramount consideration before the High Court while ordering retrial in a case in exercise of its power under section 439, Cr.P.C. Would be to prevent occasion of miscarriage of justice in the case. Therefore, where the High Court finds that the Trial Court while acquitting the accused has misread the evidence on record or drawn inferences from the evidence which are perverse or has committed an irregularity which vitiated the trial or it failed to keep in view the guiding principles laid down by the superior Courts for appreciation of evidence in criminal case, the High Court may step in in exercise of its jurisdiction under section 439, Cr.P.C. And after setting aside the acquittal judgment, order retrial of the case. It will, therefore, not be correct to say that the provisional Court while hearing a revision application arising from on acquittal judgment cannot go into the question of reappraisal of the evidence recorded by the Trial Court. It cannot be disputed that if the ground taken in the revision application before the High Court, filed against the acquittal judgment, is that the trial Court has misread the evidence in the case or that the approach of the Trial Court to the evidence ort record is totally perverse, the High Court will be fully entitled to go into the question of appraisal of the evidence by the Trial Court and if it reaches the conclusion that the Trial Court has in fact misread a material part of the prosecution evidence or that the approach of the trial court to the evidence on record is totally perverse or otherwise the dictates of justice demanded that the acquittal judgment recorded by the Court be interfered with, the High Court will be fully competent to interfere with such judgment of the Trial Court and order retrial. The retrial can be ordered by the High Court from any stage of the proceedings which the circumstances of the case may warrant in each case. However, care should be taken by the High Court while ordering retrial of the case that the observations of a definite character and nature should not be recorded which may fetter the jurisdiction or discretion of the Court while holding retrial. The High Court while remanding the case to the Trial Court for retrial must leave the matter open for decision by the Trial Court for appraisal of the evidence in accordance with the law. In the case before us, the High Court while remanding the case to the Trial Court came to the conclusion that certain principles laid down by the superior Courts for appraisal of ocular evidence in a criminal case were not kept in view by the Trial Court while drawing inferences on basis, of the evidence on record. It was also observed by the learned Judge in Chambers that certain important part of the prosecution evidence was not taken into consideration by the Trial Court while acquitting the accused in the case. These considerations were totally valid for the purpose of ordering retrial in the case. However, we would like to clarify that the observations made by the learned Judge in Chambers while ordering retrial, to the effect that the eye-witnesses' account corroborated by the medical evidence and the motive part of the story and the attending circumstances were sufficient to conclude the charge against the respondent, are observations of definite nature which might influence the opinion of the Trial Court while holding retrial of the case.
We would, therefore, while upholding the order of the High Court for retrial in the case, would clarify that the above observations made by the learned Judge in the impugned judgment with regard to merits of the case will not be binding on the Trial Court while holding retrial in accordance with the order of remand made by the High Court. The Trial Court will be free in the assessment of evidence in the case while holding retrial and will decide the case uninfluenced by the observations of the High Court in the order of remand, on the merits of the case."
6. The other contention of the learned counsel for the appellants is that the High Court could not interfere with the acquittal judgment unless the judgment was found to be foolish, perverse or based on misreading or non-consideration of material evidence on record. With the assistance of the learned counsel for the appellants we have gone through the judgment of the learned Trial Court and are constrained to observe that the learned Judge while evaluating the prosecution evidence in the case neither analyzed the evidence on record nor gave its own reasons for rejecting the same. The Trial Court in its judgment simply noted the criticism of defense counsel to the evidence of eye-witnesses and then disposed of the same with the observation that the State Counsel was unable to make satisfactory reply to the contention of the defense counsel. It need not be stressed here that presence of a counsel in a case is only meant for facilitating the trial of the case before the Court. Failure of the counsel to render proper assistance in a case, therefore, cannot absolve the Court from its primary duty to decide the case in accordance with the law.
Section-367, Cr. P.C. Requires that the judgment of the Court should contain the point or points for determination, the decision of the Court on such points, and reasons for the decision. Therefore, failure of the State Counsel to offer satisfactory reply to the criticism of the defense counsel to the prosecution evidence cold not result in the acceptance of the contention of the defense counsel, thereby absolving the Court from its duty to examine and evaluate the evidence in the case and recording the reasons for acceptance or rejection of the evidence as required by law. We are sorry to say that the Trial Court while dealing with the prosecution evidence in the case. Did not record his own reasons for rejecting the prosecution evidence. Mere reproduction of the criticism of the defense counsel to the prosecution evidence in the case was not sufficient to absolve the Court from its duty to record its own reasons for acceptance or rejection of the prosecution evidence. In these circumstances, the learned Judge in Chambers was fully justified in interfering with the judgment of acquittal which was passed by the learned Trial Court without evaluating prosecution evidence in the case.
7. In view of the above discussion, we do not find any merit in the above appeal, which is accordingly dismissed.