P L D 1955 Federal Court 70 (PLP)

The plea taken in defence was that the accused were falsely implicated at the instance of one Chhoeth Ram on account of a dispute over the possession of some lands. The learned Sessions Judge relied upon the statement of P. W. 8, Mst. Nasiban, as supplying the motive for the crime and on inferring therefrom that the appellant had acted under a grave and sudden provocation, convicted and sentenced him to rigorous imprisonment for seven years under section 304, Part

1. Upon appeal, however, the Chief Court of Sind, while maintaining the conviction under section 304, Part 1, disbe lieved P. W. 8, Mst. Nasiban, and characterizing her evidence as false and tutored, enhanced the sentence of the appellant from seven years' rigorous imprisonment to transportation for life by resorting to the revision section 439 Cr. P. C. There can be no doubt that the Chief Court was within its compe tence not to accept the evidence of P. W. 8, Mst. Nasiban as reliable testimony, but as a necessary consequence of this the conviction under section 304, Part I, would become liable to be converted to a conviction under section

302. In the case of Shera and others v. the Crown Criminal Appeal No. 29 of 1952=(P L D 1954 F C 141), I have expressed the view that the High Court in an appeal from a conviction can subject to certain limitations, alter the finding so as to result in a different conviction of a more serious nature and then in, revision pass appropriate sentence. However, the failure to alter the conviction from section 304 Part I into a conviction under section 302 could cause no prejudice to the appellant. What concerns the appellant most is the question of the enhancement of his sentence under section 439 Cr. P. C. I am not aware of any case in which the Judicial Committee of the Privy Council ever reduced a lawful sentence on the ground of its severity. The question of the adequacy of a lawful sentence is, in my opinion, not for this Court to determine. If the sentence is considered by the appellant to be excessive he has his remedy elsewhere, and I am confident that if he takes recourse to proper quarters, the authorities concerned will carefully consider the matter and do what they think fit and proper. I am, therefore, reluctant to interfere with a lawful sentence and would accordingly dismiss this appeal. But before I conclude, I should like to observe that the remarks of the learned Judges of the Chief Court regarding the Public Prosecutor for having examined Mst. Nasiban as a prosecution witness seem to me to be hardly justified. She was a material witness as she was supposed to be able to throw some light on the question of motive. On such a serious charge as that of murder it was desirable not to with hold her evidence from the Court; whether to believe her or not rested solely in the discretion of the Court. Clearly the duty of the Public Prosecutor was to seek to assist the Court in coming to a correct conclusion by placing before it all relevant material evidence. SHAHABUDDIN, J.‑I entirely agree with the views expressed in the judgments of my Lord the Chief Justice and my learned brother Cornelius, and find it unnecessary to add any observations of my own. I agree that this appeal be dis posed of in the manner proposed by them. CORNELIUS, J.‑This appeal is brought before us by special leave by one Rafique who, having been convicted under section 304 P. P. C. and sentenced to undergo seven years rigorous imprisonment by a Session Judge, appealed to the Sind Chief Court, where, however, the Judges dismissed his appeal and acting in the exercise of their revisionary power, enhanced his sentence to transportation for life. Leave to appeal was granted on the ground that the learned Judges had "illegally awarded a sentence to the petitioner under A section 304 Part I, which they considered ought to have been awarded to him under section 302". The conviction of Rafique was for causing, the death of one Pribhu, a Hindu resident of his village Khhan, in District Mirpurkhas, by a single blow of a spear in the abdomen, resulting in shock and haemorrhage as well as injury to inter nal organs. The trial Judge found on the evidence let before him that Rafique acted under the influence of grave and sudden provocation. The first information of the occurrence received by the police, and the two dying declarations made by the injured man Pribhu before his death some nine hours after the occurrence contain no mention of the reason for, or the motive behind, the assault. Satio, a Hindu, who had migrated to India by the time when Rafique was brought to trial, gave the first information, which was simply to the effect that "there had been a quarrel between Pribhu and Nuro and other muhajirs; and Rafique son of Nuro muhajir had given a blow with a spear to Pribhu on his abdomen". The Head Constable on receiving this information proceeded to the place where Pribhu was. lying and recorded a statement by Pribhu which was to the effect that after a visit to the town, he had just returned to his house when he was called out and coming out of the house he found Nuro muhajir and his sons Rafique and Siddik and two other muhajirs Bundhu and his younger brother, standing in the street. Rafique speared him in the adbomen and lie fell down raising cries, whereupon four of his Hindu neighbours named Rughio, Samerio, Utmo and Satio came running to the spot, and the others ran away. The second statement by Pribhu was made in the hospital shortly before his death and is much shorter. After giving his name and residence, he said "Rafique, son of Noor Muhammad, struck a spear in my belly outside my house. At about 8 or 9 p. m. they came into my house and dragged me out. There were about twenty of them." It is clear that when the attack took place, it was already quite dark. Pribhu's statements thus left room for the belief that the four Hindus named by him only arrived after the single blow had been struck, and, in fact, Rughio, Samerio, and Utmo admitted to the police that they had only arrived to find Pribhu lying injured although in Court they professed to be eye‑witnesses. Satio's statement before the Committing Magis trate which was transferred to the record of the trial also contains a similar claim, which cannot be taken too seriously for more than one reason. None of these witnesses said anything about the nature of the quarrel, which culminated in the attack. The cause of the `quarrel' appears only from the evidence of a Muslim girl Mst. Nasiban, whose testimony has been the subject of strong comment by the learned Judges in the Chief Court. This girl had a love‑affair with Pribhu and had been meeting him secretly. It was on ldd day, and that even ing after dark she and Pribhu were sitting together in an empty house where they 'were surprised by the accused Rafiqe and both ran out. Rafique pursued Pribhu, while Mst. Nasiban made good her escape, but shortly after, she learnt at her own house that Pribhu had been injured. The discovery of this witness was obviously the result of investigation by the Police, since the information received from Satio and Pribhu made no mention of the events which led up to the assault. Since there was no history of previous ill‑feeling between the parties, it was natural that the police should investigate and the Court should look for some good reason to explain the conduct attributed to the accused. The trial Judge found the reason in the affair with Mst. Nasiban and his remarks on the subject commence with the following words :‑ "The genesis of the quarrel and the motive for the crime are given by Mst. Nasiban, young muhajir girl of 20." ‑ He added that Mst. Nasiban was a married woman from Karnal District in East Punjab whose husband had stayed be hind in India and abut a month before the murder she con tracted intimacy with Pribhu who was a good‑looking young fellow while picking cotton in the fields. On the night in ques tion, she made out Rafique who was a neighbour of hers, by his voice, and as she also saw him pursuing Pribhu in the dark, she could also observe his build. In finally assessing the criminal liability of Rafique, the trial Judge painted out that there was no evidence of previous enmity between Pribhu and Rafique, or to show that Rafique knew of the intimacy between Pribhu and Msr. Nasiban, and that there was "not the slightest reason for disbelieving the evidence of Mst. Nasiban", according to which the attack took place shortly after the discovery of the lovers in the deserted house. In the view of the trial Judge, Raflque being a refugee from the same part of India as Mst. Nasiban, when he saw Mst. Nasiban carrying on with a "low caste Menghwar on the sacred night of Idd near his house" naturally lost control over himself and acted as he did without deliberation and in the heat of the moment, under provocation which was both grave as well as sudden. Accordingly he declined to convict Rafique of the offence charged, namely murder, but convicted him under section 304 Part I. In the Chief Court the case was looked at from a different point of view. Both the learned Judges accepted in full the evidence of Satio and the three other Hindu witnesses. This in their view sufficed to sustain a charge of murder against Rafique, and as to the evidence of Mst. Nasiban, they considered that it was a concoction, designed to convert the case into one of killing under grave and sudden provocation. One of the learned Judges, declaring that the evidence of Mst. Nasiban was at "complete variance" with the evidence of the Hindu witnesses and the dying declarations, concluded that "Mst. Nasiban's presence, existence, and her connection with Pribhu were afterthoughts". He relied for this conclusion on the fact that her statement was recorded under section 164 Cr. P. C. ten days after the occurrence. (The gril's deposition shows that this statement followed an earlier statement made by her to the police). Noting that Rafique had himself declared that Nasiban's evidence was false and tutored, the learned Judge expressed his inability to see how the prosecutor `ever came to concede that there was a case for grave and sudden provo cation or the learned trial Judge ever came to find it". At the close of his judgment he opined that "serious improprieties have contributed to extraordinary results in this case". The other learned Judge of the Division Bench employed, if anything, even more stringent language. He thought that "the clearest duty of the learned Assistant Public Prosecutor in the case of a brutal murder like the present one, was to refrain from offering Nasiban as a witness for the Crown", and that "the theory of grave and sudden provocation was improperly introduced into the case with the sole purpose of shielding the appellant from the consequences of a very grave crime". He based this conclusion upon the contents of the "police papers", which in his opinion the Prosecutor must have read. He thought that the story of intimacy between Mst. Nasiban and Pribhu was "on the very face of it as false as it was unnatural". 1n his opinion the Public Prosecutor should have left it to the accused to prove the circumstances necessary to bring himself within the relevant exception to section 300 P. P. C. observing that "the strange part of the whole affair is that the appellant himself never advanced that theory in any of the two Courts below". Like the other learned Judge he regretted the inability of the Chief Court to deal with the offence as one of murder, on account of the conviction under section 304 operating as an acquittal under section 302 P. P. C., and went on to say that:‑ "The manner in which the case was investigated by the" police and conducted by a Government Law Officer in the Court of Session is most alarming and it must create a sense, of insecurity in the minds of law‑abiding citizens." It has been necessary to reproduce these observations of the learned Judges at some length in other to demonstrate the extent of the misconception from which they suffered regarding what may be described as the structure of the case. It was natural for the police in the course of investigating the clime, to inquire why Pribhu was made the subject of a violent arid necessarily fatal attack. It was stated at the Bar that Ma. Nasibat,'s name became known to the police on the very night of the murder and she was examined for the first time on the following day. Not only was her evidence natural, .but it seems also‑ to have been necessary, in the circumstances, from the prosecution point of view. The learned Judges in the Chief Court appear to have thought that there was ample evidence quite apart from the statement of Mst. Nasiban for holding it to be established that Rafique caused the fatal injury, but grounds were not lacking in support of the contrary view, which it was in the interest of the prosecution to disprove. As has been observed, already there was room for thinking that the four Hindu witnesses arrived too late to see the fatal blow, and as for the dying statements of Pribhu, it might have been contended that in the prevailing darkness, be could not have made out the spearman, from among five (or, alternatively twenty) assailants, who included at least two pairs of brothers, with any degree of certainty. In these circumstances, the evidence of a Muslim girl and a refugee fully acquainted with the alleged assailants, would be of the greatest value to the prosecution, in fixing the identity of the person who had the strongest motive to attack Pribhu. The view of the learned Judges in the Chief Court that the evidence of this girl was artificial, false and concocted, and was introduced merely for the purpose of minimizing the charge against Rafique would, in the light of these considerations, appear to lack foundation and it is not surprising to find that in reaching this view the learned Judges have not thought fit to examine the evidence of Mst. Nasiban at all. The reference to her examination before a Magistrate in one of the judgments has little‑or no bearing on this question. That examination is susceptible of a simple explanation viz., the possibility that she might have been prevailed upon by the accused persons to resile from her statement. The accused persons were, like herself. Muslims and refugees from Karnal District. The loss of this witness would certainly have operated greatly to weaken the prosecution case and the precaution of having her evidence recorded under section 164 Cr. P. C., was, therefore, wisely taken. At what stage it should be taken was for the prosecuting authorities to judge. As for the reference in the Judgment of the other learned Judge to the "police papers", that can only have been made through oversight, for it is not thus that the police proceedings in an investigation are to be used by Courts for the judicial resolution of questions arising in the case resulting from such investigation. No doubt need be entertained that if the learned Judges in the Chief Court had appreciated the naturalness and necessity of Mst. Nasiban's statement, they would not have come so readily to the conclusion that it was purely concocted, and the occasion which the misconception provided to them for recording a strong criticism of the conduct of the police as well as the Public Posecutor in the case might, therefore, never have arisen. But it is necessary to observe that in any event, the duty of restraint in the expression of such criticism could never be avoided. It being clear that the exclusion of Mst. Nasiban's evidence from consideration by the Chief Court is not based upon a true appreciation of the case, or upon examination of the intrinsic nature of the evidence, the conclusion of the learned Judges that the finding of grave and sudden provocation was erroneous, and the case was one of "brutal murder" requires reconsideration. It is immaterial that the accused himself never raised the plea of grave and sudden provocation. He may have thought it inadvisable to do so, and in this E connection, one matter which may have carried weight in determining his attitude might have been that the introduction of Mst. Nasiban into the story might help to establish his identity where otherwise, owing to the difference of religion and status and the presumed absence of previous association ect., the testimony of the Hindu witnesses might have been lacking in certainty. Yet it is open to him to take advantage of any facts established by the prosecution evidence. In this connection it is necessary also to observe that if the facts of a case provide elements which go in favour of an accused person, there is nothing in law to require, and it would be obnoxious to the whole system of justice as operated in this country, that the prosecution should deliberately refrain from presenting evidence of such elements also before the Court. It ‑is true that the Court decides the case on the evidence, but justice requires that that evidence shall disclose the truth to the maximum extent that may be possible irrespective of the result. The duty of producing evidence falls, in the main, upon the prosecution. The learned Judges in the Chief Court did not find themselves empowered. to replace the conviction under section 304 by one under section 302 P. P. C. Yet, while confirming the conviction under section 304 Part 1, they have assessed the g sentence in relation to their belief that the case was one of murder, using for the purpose the extraordinary power of enhancement reserved to them by section 439 Cr. P. C. The procedure thus adopted displays a grave error of principal. The conviction under section 304 Part 1 on the basis of grave and sudden provocation. rested on certain facts found by the trial Court. In confirming t at conviction. the learned Judges have purported to ignore those facts. It was not competent for them to do so, nor could they treat the case, for any purpose, as one of murder, in the absence of a power to alter the conviction. By maintaining the conviction for the minor offence and settling the quantum of punishment in relation to the major offence, the learned Judges have fallen into an anomaly which was wholly unnecessary. They could have re‑examined the adequacy of the sentence in relation to the facts found by the trial Judge, but this they have not done the sentence awarded by them to Rafique cannot be regarded as having been judicially imposed. It is, of course, clear that the circumstances on which the trial Judge found grave and sudden provocation in this case are of an altogether exceptional character. Such a finding is one of fact, and was within the competence of the trial Court, and I find it impossible to say that on the fact which the trial Judge held to be proved it was a finding which would never have been reached. It is, of course, clear that all the matters relevant to the culpability of the accused Rafique in relation to the punishment which he had deserved by his crime, were present to the mind of the trial Judge when he imposed the sentence of seven years' rigorous imprisonment. In the circumstances, this Court, which does not function to revise sentences of subordinate Courts, would not concern itself with the question whether that sentence is adequate. It is, in any case, substantial. The matter may appropriately be allowed to rest upon the judgment of the trial Judge. For these reasons, I would allow this appeal to this extent that on the point of sentence I would set aside the judgment of the Chief Court, and in its place, restore the sentence awarded by the learned trial Judge. ORDER OF THE COURT In accordance with the view of the majority, this appeal is allowed to the extent of reducing the sentence awarded to Rafique from hone of transportation for life to seven years' rigorous imprisonment. A. H. Sentence reduced.