MUHAMMAD JEE Versus MUHAMMAD IBRAHIM SHAUQ '

1. MUHAMMAD HALEEM, C.J .‑‑This appeal arises out of an F.I.R. registered against the appellants for committing offences under sections 342 and 448.P.P.C. read with section 34, P.P.C.

2. Appellant No.1, herein, is the father of appellants Nos.2, 3 and 4 while the others were his wife and two daughters‑in‑law. House No.869 with a Baithak, situate in Mohallah Chowki Police, Haripur, belonged to one Sheikh Abdul Sami who had rented it out to respondent No.1. Subsequently, Sheikh Abdul Sami sold this house to Abdul Rehman in 1973 to whom this respondent attorned as a tenant and paid rent. However, appellant No.1, herein, succeeded as the last owner through a pre‑emption decree. This appellant on 20th of August, 1978, filed an application to seek the ejectment of respondent No.1 and during the pendency of these proceedings, it was alleged that on 27th of April, 1979, while respondent No.1 was not at home, appellants forcibly occupied the Baithak and illegally confined his peon Khair Din for about half an hour. On being released Khair Din reported this incident to respondent No.1 who lodged the F. I. R.

3. The dispute is only in regard to the possession of the Baithak. The appellants' case was that it was not let out to the respondent who was only in possession of the rooms of the house while the respondent No.1 contended that he was in its possession and using it as an office. The house is situate in a thickly populated locality and during the investigation of the case persons residing in the neighbour hood were also examined but were not produced at the trial. The only witnesses who appeared in support of the case were respondent No.1 himself, his servant Khair Din and Abdul Rehman the vendee of the house with whom the appellant No.1 had litigated and thereafter succeeded in obtaining possession through a decree. The trial Court drew an adverse inference from the non‑examination of those persons.

4. Upon consideration of the evidence the trial Court held that the case was not established beyond doubt against the appellants and in this context it also took note of the statement of D.W. Haji Yousaf Khan, who was Mukhtiar of Abdul Sami the original landlord, who stated that he had been associated with the renting of the house and the Baithak of this house was never rented out. In coming to this conclusion the trial Court held:

5. "So, it is not only that the P.Ws. are only interested witnesses, but there are also a few contradictions in their statements. The task of prosecution is enormous. It rests on the shoulders of prosecution to prove its case beyond any reasonable doubt. The quality ‑and standard of evidence expected of prosecution is extremely high and I am afraid the prosecution in this case has failed to measure up to that standard. In the first place it has dropped off disinterested witnesses from the proceedings. Out of the material P.Ws. one is complainant, second is private servant of the complainant and the third one is a rival of the accused party. Then, when previous statements of these P. Ws. are compared with Court statements an attempt on their part to improve upon the story cannot be mistaken."

6. Accordingly, the appellants were acquitted.

7. The respondent thereupon moved the High Court through a criminal revision and succeeded as the case was remanded for retrial. The High Court held in paragraph 4 of the judgment that the trial Court did not consider the warrants of possession regarding the delivery of 'Malkana Dakhal of the house and so also the copy of the registered sale‑deed in respect of the rooms, the Baithak and the courtyard having been sold to Abdul Rehman. The High Court was further of the opinion as would appear from paragraph 9 of the judgment that there was improper appreciation of evidence by the trial Court while disbelieving the testimony of the witnesses "not on reasonable grounds but on mere speculation". The High Court further expressed that the oral testimony was not altogether wholly unreliable and that the evidence should have been appreciated in a proper perspective, and, if at all, corroboration was necessary it should have been looked for.

8. Leave to appeal was granted to consider whether on the ground aforestated, the High Court has exercised its discretion on correct principles to remand the case for retrial particularly when the District Magistrate had refused to accord sanction to file the State appeal.

9. Here I may point out that the counsel representing the State candidly conceded that he supported the appeal for the quashment of the High Court's order. It was contended that the merits of the case revolved around the veracity of only one witness namely, Khair Din, peon of the complainant, whose testimony was disbelieved for good and justifiable reasons and that the remand for retrial of the case would necessarily end in the conviction of the appellants as is apparent from the opinion expressed by the High Court. We agree with this contention as from an examination of the judgment of the trial Court, we find that there has been a fair appraisal of the evidence and the witnesses relating to the forcible dispossession have been disbelieved for just and cogent reasons.

10. The rule, while remanding a criminal case for retrial as enunciated in Anwar and another v. The Crown (P L D 1955 F 185), is that the exercise of discretion must be in accordance with the dictates of justice and not arbitrary and fanciful, while holding in at the same time that "the Legislature itself does not define the limits or the grounds for the exercise of a discretion", but that regard should be had to 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, and the expenses of a retrial". In Abdur Rashid v. The State (P L D 1962 S C 249), this Court again gave the guidelines in the following words:

11. Where the prosecution witnesses are affected by partisan ship or their evidence gives rise to doubts of a reasonable character, or there are circumstances which do not support the prosecution case, and may lend support to the defence case, so as to render the defence version a possible one, there to remand the case for a retrial may amount merely to presenting a doubtful prosecution case before a Court of first instance of another opinion.

12. In Abdur Rashid Khondkar v. Chandu Matbar (P L D 1964 S C 795), the principle was again re‑affirmed in the following words:

13. "The governing consideration must always be whether, in relation to the proved facts and circumstances, justice has been done in accordance with law. In particular, full weigh 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 emphasise the need of giving full weight to the principle in the re appraisement of the evidence that is necessitated by the appeal. "

14. Applying the principles laid down, we do not think that the High Court was correct in ordering the retrial of the case.‑ There was no conclusive evidence of the possession of the Baithak and the trial Court accordingly did not accept the ocular version of the complainant and his servant Khair Din whose evidence was mellowed down by the defence witness examined in the case who to an extent supported the version of the appellants that the Baithak was not used as an office and that its exclusive possession was not with the respondent No.1. The documents upon which the High Court laid emphasis were earlier in point of time and apart from their admissibility could not be read to establish the possession of respondent No.12, which is an essential ingredient of the offence. In that view of the matter, the trial Court felt hesitant to convict the appellants on the tainted testimony of the three witnesses. Any retrial would amount to a denial of the principle of doubt and would lead to injustice if the case is allowed to proceed in the trial Court as that would in the another opinion on the evidence which had already been appraised, commented a on and the benefit of it extended to the appellants. It would have no other result but one of conviction in view of the opinion expressed by the High Court which appears to us not to be based on proper appraisal of the trial Court's opinion.

15. In this view of the matter, we would set aside the order of the High Court and allow the appeal.

16. M.B.A./M‑513/S Appeal allowed.