P L D 1954 Lahore 332 (PLP)

MUHAMMAD JAN, J.‑The trial of this case under sections 395, 398 and 412 P. P. C. was commenced by Raja Hamid Mukhtar Magistrate, Gujrat. He recorded all the prosecution evidence and also examined some witnesses for defence. Before the conclusion of the trial he was transferred and succeeded by Mr. A. D. Cheema. One of the accused namely Ghulam Rasul son of Karam Ali, made a statement before Mr. Cheema on 18th September 1952 that he did not want de novo proceedings but only wanted certain prosecution witnesses to be re‑summoned for cross‑examination. The remaining five accused merely answered in the negative the question put by Court whether they wanted de novo trial. The prosecution witnesses named by Ghulam Rasul were re‑summoned and cross‑examined by the accused: Both the Urdu and English records show that they were examined as defence witnesses which was obviously wrong. Raja Hamid Mukhtar had examined four defence witnesses on 28th July, 1952 and the prosecution witnesses named by Ghulam Rasul were examined as defence witnesses 5 to 17, in October and November 1952 and February, 1953. No other witness for defence was produced and the Court proceeded to judgment which resulted in the conviction of the accused. In appeal the question has arisen whether there has been non‑compliance with the provisions of section 350 Cr. P. C. and the trial is vitiated. In Criminal Revision No. 481 of 1953, where prosecution witnesses were resummoned under section 350 Cr. P. C. and merely cross-examined by the accused, I held that mere cross‑examination of the prosecution witnesses was not sufficient compliance with the provisions of section.350 Cr. P. C. and the failure to examine the witnesses de novo vitiated the trial. I followed the general trend of authorities in that case but I feel that much can be said for the opposite view than in the absence of any prejudice to the accused a trial should not be set aside merely because the prosecution witnesses were cross‑examined by the accused, as desired by him without being first examined‑in‑chief. The point is of considerable importance and has risen in two cases heard by me, S. B., in the course of less than one month. I consider it desirable to refer the question to the Hon'ble the Chief justice for considera?tion by a larger Bench. JUDGMENT SHABIR AHMAD, J.‑In this appeal the main question of law that arises is whether an accused person can, under section 350 of the Code of Criminal Procedure, demand that he may be permitted to only further cross‑examine the prosecution witnesses. The question arose before my learned brother Jan when the appeal came up for hearing before him, but as he had already expressed a view on this question, of the correctness of which be felt doubtful, he referred the question to a larger Bench. The appellants were tried by Mr. Hamid Mukhtar, Additional District Magistrate, Gujranwala, on whose transfer the case was entrusted to Mr. A. D. Cheema. When the case came up before Mr. Cheema not only had the prosecution case been closed but three witnesses for the defence had also been examined. On the 11th of September 1952, on the case coming up before him for the first time, Mr. Cheema, acting under section 350 of the Code of Criminal Procedure, asked the accused persons if they wanted any of the witnesses already examined to be reheard and while the other appellants did not exercise their right, one of them, namely. Ghulam Rasul, son of Karam Ali, appellant stated that he wanted to recall some of the prosecution witnesses for further cross‑examination, while another stated that he wanted to examine some of the prosecution witnesses already examined and some others as defence witnesses. All the witnesses mentioned by the two appellants were examined as defence witnesses and it is not denied that opportunity was given to the defence to ask them questions which could be asked in cross‑examination. My brother Jan was doubtful if the fact that the prosecution witnesses examined by the predecessor of Mr. A. D. Cheema were merely cross‑examined, was a compliance with the provisions of section 350 of the Code of Criminal Procedure. ??????????????????????????????????? Subsection (1) of section 350 of the Code of Criminal Procedure is in the following terms:? "Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his pre? decessor and partly recorded by himself; or he may resummon the witnesses and recommence the inquiry or trial: Provided as follows :‑? (a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re‑summoned and re‑heard ; ??????????? (b) the High Court, or, in cases tried by Magistrates sub? ordinate to the District Magistrate the District Magistrate may. whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial. It is clear from the above provision of law that the rehearing of the witnesses already examined has to take place either if the Magistrate before whom the evidence was not recorded considers it necessary to do so or if the accused person demands that it should be done. It is open to an accused person not to demand the rehearing of any of the witnesses examined by the predecessor of the Magistrate dealing with his case or to demand that only some of them may be reheard. If an accused person demands that only some of the witnesses already examined be reheard, it dons not take away the discretion vesting in the Magistrate to summon all. the witnesses and recommence the inquiry or trial, but if the accused person demands that all the witnesses already examined be reheard, it is the duty of the Magistrate to comply with that demand and it will not be open to him to refuse to rehear any of the witnesses whom the accused wants him to rehear. In my view, it is open to an accused person, after he has demanded that all the witnesses be resummoned and reheard, to amend that statement and require only some of the witnesses to be reheard. But if the accused changes his mind the power of the Magistrate to rehear all the witnesses will still be there and he could summon all of them in spite of the fact that the accused does not consider the rehearing of some of them necessary. Proviso (a) of subsection (1) of section 350 of the Code of Criminal Procedure was obviously intended, to give an accused person the right to show to a Magistrate that the witnesses examined by his predecessor were not trustworthy. That being so, I cannot, on principle, see any objection to an accused person wanting only to cross‑examine the witnesses who had already been examined. It cannot be doubted that an accused person need not demand a rehearing of the witnesses or after having demanded the rehearing of all the witnesses may not want all or any of them to be examined. If an accused person can 'give up the rehearing of the witnesses altogether, I can see no reason why be cannot give up a part of the examination of those witnesses. In Criminal Revision No. 481 of 1953, decided by him on the 22nd of October 1953, my brother Jan took the view that if an accused person had claimed a de novo trial he could not subsequently content himself with merely cross‑examining the P. Ws. who had been heard by the predecessor of the Magistrate before whom the trial was pending and if be did so, the trial was vitiated and a retrial became necessary. This conclusion was arrived at on the basis of Mangal Singh and others, v. Emperor (A I R 1920 Lah. 344.), Purushottamrao Bhanji Barde v. Emperor (A I R 1938 Nag. 493.), Narayna Reddi and others v. Roumula Bojanna (A I R 1925 Mad. 1280.), Emperor v. Pranshankar Shambhuram Raval and another (51 Cr. L J 233.) and Sobh Nath Singh and others v. Emperor (12 C. W N 138.), about the last of which it was remarked that it had laid down that even if the accused had agreed to the witnesses being merely cross‑examined the trial was vitiated if they were not fully reheard. None of these cases deals with the question which arises in the present case, because in all of them including Sobh Nath Singh and others v. Emperor (supra) the position was that though the accused wanted the witnesses to be reheard, the Magistrate allowed their cross‑examination only. In the present case, the accused had wanted merely to cross‑examine the witnesses and as, for the reasons already given, I am of the view that it was open to the accused to limit the rehearing that he claimed under‑section 350 of the Code of Criminal Procedure, I do not think that any illegality had been committed by the Magistrate. Even if the accused had, in the first instance, claimed a rehearing, it was open to him at a subsequent stage to be content only with cross‑examination of all or any of the witnesses in which case also it is clear that no illegality would be committed if the Magis?trate carried out the wishes of the accused. A number of authorities were cited by the learned counsel for the parties but as none of them deals with the precise question that arises here, it is not necessary to mention them in this judgment. My answer to the question mentioned in the referring order, therefore; is that when an accused person exercises his right under section 350 of the Code of Criminal Procedure, it is open to him to demand only the cross‑examination of witnesses already heard by the predecessor of the Magistrate before whom the case is pending and if the Magistrate agrees to such a request, no illegality is committed. The question referred having been answered, the point that arises is whether the case is to be returned to the learned Single judge, who made the reference, or is to be decided by this Bench on merits. The matter before the learned Single Judge was a criminal appeal about which no statute makes any provision at to its being heard by one judge or more than one judges of this Court, and the jurisdiction of the judges of this Court to hear the appeal is, therefore, governed by Chapter 3‑B of Volume V. Rules and Orders of this Court. The relevant part of Rule I of that Chapter, as corrected by Pamphlet No. 12 dated the 3rd of December 1945, reads as follows:‑ "Subject to the provisos hereinafter set forth, the following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone :‑ (xix) an appeal, petition or reference under the Code of Criminal Procedure, 1898, other than‑ (a) an appeal, reference or a petition for enhancement of sentence, in a case in which a sentence of death or of transporta?tion for life has been passed ; (b) an appeal by the Provincial Government under section 417 of the Code from an order of acquittal ; (c) a case submitted under section 307 of the Code ; (d) a case in which notice has issued to a convicted person who has been sentenced to imprisonment or transportation for a term of seven years or more to show cause why the sentence should not be enhanced ; (e) a case in which notice has issued to a convicted person requiring him to show cause why his conviction should not be altered to one of an offence punishable only with death or trans?portation for life ; ` Explanation‑Preliminary hearings for admission of‑ (i) a petition for enhancement referred to in sub‑clause (a), (ii) an appeal under section 417 referred to in sub‑clause (b), before a Bench of two judges. ??????????? (xx) ???? *????????? *????????? *????????? *????????? *????????? *????????? *????????? *????????? *????????????????????? ??????????????????????? *????????? *????????? *????????? *????????? *????????? *????????? *????????? *????????? * Provided that‑ (a) a judge may, if. he thinks fit, refer any matter mentioned in any of the clauses of this rule other than clauses (xvii), (xviii) or (xx), and, with the sanction of the Chief justice, any matter mentioned in clauses (xvii) and (xx), to a Division Bench of two (b) a judge before whom any proceeding mentioned in clause (xviii) is pending, may, with the sanction of the Chief justice, obtain the assistance of any other judge or judges for the hearing and determination of such proceeding or of any question or questions arising therein." Sub‑rule (xix) makes the criminal appeal before us i by a Single Judge of this Court because the highest passed in the case was seven years' rigorous imprisonment. No doubt the learned Single judge, before whom the appeal came up for hearing, could, acting under proviso (a) and rule 1, of Chapter 3‑B of Rules and orders Volume V send the case to a Division Bench of two judges, but it would appear that when they case comes up before a Division Bench of two judges, they are seized of the whole case and. their jurisdiction cannot be limited to the decision of any question. That the whole case mentioned in proviso (a) is to be decided by the Division Bench is, in my view., manifest from proviso (b) wherein it is clearly mentioned that the Single judge dealing with the case mentioned in clause (xviii) of rule I may obtain the assistance of any other .Judge or judges for the hearing and determination of such proceeding or of any, question or questions arising therein. If the intention of the rule were that even in matters governed by proviso (a) only a question arising in the case could be referred to a Division Bench of two judges, one would have expected that the language employed in proviso (b) would have been employed in proviso (a), leaving it to the discretion of the Single judge either to have the whole matter or only a question arising therein decided by a larger Bench. I would hold, therefore, that notwithstanding the fact that the learned Single judge referred only the question of the interpretation of section 350 of the Code of Criminal Procedure to a Division Bench, the Division Bench can and in fact has to dispose of the whole matter, unless it considers a reference to a Full Bench necessary. Having held that the whole case is before the Division Bench for decision, I now address myself to the merits of the case. The six appellants in the case were held guilty of having, on the night between the 31st of January and 1st of February 1952, committed a dacoity in the shop of a cloth dealer of village Chakori. The trial Magistrate found that of the six convicted persons, Mithu used a gun during the course of the commission of the dacoity and, therefore, sentenced him to seven years' rigorous imprisonment under section 398 of the P. P. C. while he sentenced the other five appellants, namely, Gaman, Salehon, Mahanda alias Muhammad, who like Mithu are residents of village Nakkewal, and Ghulam Rasul son of Shahu, resident of Chhimon, and Ghulam Rasul son of Karam Ali, resident of Bosal Sukha, to five years' rigorous imprisonment each under section 395 of the P. P. C. Against the above sentences, the six convicted persons have presented a joint appeal. The dacoity resulted in the owners of the shop losing some tins of ghee and cloth worth about (Rs.?) 1,500 as well as cash amount?ing to Rs.

120. A first information report was made by Jamal Din, one of the two owners of the shop, at Police Station Qadirpur, which is at a distance of seven miles from the scene of the occurrence, at about 8 a.m. on the 1st of February 1952. In the report, though the information gave the details of the property which had been stolen, he did not mention the names of the dacoits. When Jamal Din left for the police station to make a report, some other residents of the village busied themselves in following the tracks of the culprits. The track party found tracks of three horses which were followed till they reached village Nattowal. From there the, track of one horse went towards village Bosal while the tracks of two led to village Nakkewal. The track party sent information to Bosal Police Post at which Ata Muhammad Khan A. S. L, accompanied by four foot con. stables, at once proceeded to village Nakkewal which is in the jurisdiction of Police Station Miana Gondal, The A. S. I. reached the village at about 8.15 p.m. on the 1st of February and put guard on the houses of all the four appellants who are residents of that village. The next day, the houses of Mithu, Mahanda, Salehon and Gaman appellants were searched one after the other. Gaman appellant was not present in his house at the time of‑the search but his brother was. The search of the house of this appellant, however, led to no recovery. The search of the house of Mithu‑appellant resulted in the recovery of a tin bearing the mark 'J. D.' and a bundle of unsewn cloth, the total length of which was 267 yards and 4 girahs, as well as a '12 bore gun and four live cartridges. A horse which was found tied in the house was also taken into possession. The search of the house of Mahanda appellant resulted in the recovery of a tin bearing the initials 'J. D.' and pieces of unsewn cloth measuring in all 175 yards and 4 girahs as well as a towel. The house of Salehon appellant led to the recovery of seventeen pieces of unsewn cloth and a tin bearing the initials. 'J. D.'. The cloth which measured 167 yards and thirteen girahs was lying in a trunk the key of which was given by Salehon appellant. A horse was also taken into possession from the house of Salehon, as according to the prosecution this horse and the one recovered from the house of Mithu had been ridden by the dacoits on their way to and from the burgled shop. Though no recovery was made from the house of Gaman appellant, evidence was given by Dost Muhammad of village Chak Alam (P. W. 21) and Hidayat (P. W. 22) that Gaman appellant was seen by them shortly before dawn near the Sem Nala Bridge going towards village Bhabra carrying a bundle on his head. They challenged him at which Gaman appellant told them to mind their own business. They challenged him again at which he threw down the bundle that he was carrying. The witnesses who were on horseback galloped after the appellant and caught him at which be beseeched them to let him go as the police was intending to arrest him for a dacoity committed by him in village Chakori. The bundle thus recovered contained nine pieces of unsewn cloth and a tin, which along with Gaman appellant were produced soon after before the police in village Nakkewal. With regard to the four appellants who are residents of village Nakkewal, the prosecution relied on the recoveries from them as well as their having been seen by Sardara (P. W. 10). Fatta (P. W. 11), Khushi (P. W. 12) and Mutalli (P. W. 13), at about dawn on the 1st of February 1952, riding horses and carrying bundles of cloth and tins of ghee. Khushi (P. W. 12) and Mutalli (P. W. 13) stated that at about sarghiwela on the 1st of February 1952, they were sitting smoking hucca when six persons came there riding three horses. Of these six persons, the witnesses knew all except Ghulam Rasul son of Shabu and as the riders were carrying some goods with them they asked them where they had got the goods from, and were told that the goods had been bought in connection with a marriage. Sardara (P. W. 10) and Fatta (P. W. 11) stated that they had seen Mithu, Salehon, Gaman and Mahanda appellants riding two horses, two on each, and carrying some bundles and tins of ghee. On their enquiry the witnesses were told that the goods had been bought from village Dhunni. A track party reached village Nakkewal, to which P. Ws. 10 and 11 belong, and these witnesses told the members of the track party that they had seen Mithu, Mahanda, Salehon and Gaman appellants riding horses and carrying bundles of cloth and tins of ghee. I have carefully considered the evidence of P. Ws. 10 to 1.4 and can see no ground not to accept it, especially when it is corroborated by the recovery of pieces of cloth and tins of ghee. The recovered articles have been identified by their owners while these four appellants did not claim them to be theirs. The learned counsel for the appellants urged that the identity of the articles recovered from these four appellants and even from the other two appellants, with the property stolen from the shop of jamal Din informant was not established. This contention, I cannot accept. It is very significant that not only did the tins that were recovered bear initials of jamal Din, but very long pieces of cloth which had been mentioned in the first information report on the 1st of February 1952, were also recovered. It is true that all the tins of ghee did not contain ghee, but that does not make any material difference because it is established beyond all reasonable doubt that the tins recovered from some of the appellants had been stolen from the shop of jama1 Din informant. The evidence led by the prosecution with regard to the recovery of the property from the possession of Mithu, Mahanda, Gaman and Salehon appellants is overwhelming and I can see no ground to doubt any of the recoveries. The evidence of the recoveries coupled with the appellants having been seen shortly after the dacoity carrying bundles of cloth and tins of ghee establishes beyond all reasonable doubt that they had taken part in the theft committed at the shop of jamal Din informant. The evidence produced by the prosecution shows clearly that the culprits were at least six in number and these four appellants are, therefore, proved to have been guilty of the commission of a dacoity. The conviction of Mahanda, Gaman and Salehon appellants under section 395 of the P. P. C. was, therefore, proper, and as the sentence imposed on them is by no means severe, I would dismiss their appeal. Mithu appellant has been convicted under section 398 of the P. P. C. on the finding that he had used a firearm at the time of the commission of the dacoity. That a firearm was used in the course of the commission of the dacoity can admit of no doubt but I am not satisfied that it was Mithu appellant who used that firearm. It is no doubt correct that a '12 bore gun was recovered from the possession of Mithu appellant and while it is probable that he had used that gun during the commission of the dacoity, it cannot be said to be proved beyond all reasonable doubt that he had done so, because it is possible that one of his companions had used the gun to scare away the intending rescuers. I would, therefore, partly accepting the appeal of Mithu appellant, alter his conviction to one under section 395 of the P. P. C. for which offence he shall suffer five years' rigorous imprisonment. Coming to the cases of Ghulam Rasul son of Shahu and Ghulam Rasul son of Karam Ali appellants, one finds that some stolen property was recovered from the former on the 6th of February 1952 and some stolen property at the instance of the latter from Lala (P. W. 23) on the 17th of February 1952. Khushi (P. W. 12) and Mutalli (P. W. 13) bad not mentioned Ghulam Rasul son of Shahu appellant as one, of the six persons who were riding three horses when they were seen on the 1st of February 1952 and, therefore, against this appellant there is only the recovery. The fact that P. Ws. 12 and 13 did not identify this appellant lends a good deal of support to the con?tention of the learned counsel for the appellant that there was no definite evidence that this appellant was the companion of the other five. The recovery from this appellant, however, is establish?ed beyond all reasonable doubt as is the identity of the recovered articles with some of those stolen from the shop of Jamal Din. The safer course to adopt in the case of Ghulam Rasul son of Shahu appellant is to raise the presumption under section 114 of the Evidence Act that he had received the property knowing it to be the proceeds of a dacoity. I would, therefore, alter the conviction of Ghulam Rasul son of Shahu appellant to one under section 412 of the P. P. C. for which offence he shall suffer three years' rigorous imprisonment. Against Ghulam Rasul son of Karam Ali appellant, there is the evidence of Khushi (P. W. 12) and Mutalli (P. W. 13) that he accompanied the four appellants who are the residents of village Nakkewal. This appellant, however, is related to Wali Muhammad, M. L. A. who, it is established on the record is not on good terms with Jahana Busal, whose tenants Khushi and Mutalli P. Ws. are. In these circumstances, it will not be safe to rely on the depositions of P. Ws. 12 and 13, against this appellant. There is, however, nothing to doubt the evidence of P. Ws. 23 and 24‑with regard to the entrustment of the recovered property by this appellant to Lald (P. W. 23) nor is there any reason to doubt the evidence of the recovery at the instance of this appellant. The evidence with regard to this appellant having given information that the property was at the dera of Lala (P. W. 23) is, inter alia, the deposition of Sultan Mahmud, Head Constable (P. W. 27) which there is no reason to doubt. The identity of the recovered property with part of the property stolen from the shop of Jamal Din is established beyond all reason?able doubt and it is, therefore, established that this appellant was in possession of stolen property at no great distance of time from the date of the dacoity at the shop of Jamal Din. This appellant produced D. Ws. 1 to 4 in defence with a view to showing that be bad been falsely implicated because of his relationship with Wali Muhammad M. L. A. This defence evidence was, in my opinion, rightly rejected by the trial Court. On the circumstances proved against this appellant, it is safer to raise only this pre?sumption that he had received the property knowing it to be the proceeds of a dacoity. I would, therefore, partly accepting the appeal of Ghulam Rasul son of Karam Ali appellant, alter his conviction to one under section 412 of the P. P. C. directing that he shall suffer rigorous imprisonment for three years for that offence., The result, therefore, is that while the appeal of Gamu. Mahanda and Salehon is dismissed in its entirety, that of Mithu, Ghulam Rasul son of Shahu and Ghulam Rasul son of Karam Ali appellants is partly accepted to the extent indicated above. RAHMAN, J.‑‑I agree and concur in the order proposed to be passed by my learned brother. A. H. ??????????? Order accordingly.