P (PLP)

TYABJI, C. J.‑

The appellant, Makhan Khan, son of Nawazali,, has been convicted of murder by a judge of this Court, Agha, J., in accordance with a unanimous verdict by the jury and sentenced to death. He has appealed, and the case is also before us for confirmation of the death sentence. The appellant has been convicted of the murder of one Bashir Ahmed. On the night of 27th November 1946, at about 10 p. m. the deceased, Bashir Ahmed, was going on a much frequented public street, the Lidbitter Road. The appellant came from the opposite direction and stabbed the deceased. One Sahibdino, a tailor, who was following the deceased, was about ten paces behind him, when he saw the appellant coming from the opposite direction and stabbing the deceased. He was one of several persons there, who thereafter ran in pursuit of the appellant, who ran to and sat in a gharry which happened to be standing a short distance away. The gharry was immediately surrounded by people and a police constable Mukhtiar Singh, who was on duty at the time and saw the appellant with a knife in hand pursued , by several men, immediately came up and arrested the appellant, and secured the knife which was blood‑stained. The appellant was then taken to the spot where Bashir Ahmed had fallen down, and the injured man immediately stated that it was the appellant who had stabbed him. Another police constable, Ghulam Rasool, who though not on duty happened to be there, also saw the entire occurrence. Tirath, son of Sugnomal was the owner of a pan biri shop which was near the scene of the crime. His. attention was attracted by the cries on the street, and on turning to that direction he saw the injured man lying on the ground, and the appellant running from there to the gharry where he was arrested. There were also other persons there, including one Daulatkhan, who saw that occurrence and came up and told the police constable that it was., the appellant who had stabbed the deceased. The deceased was immediately sent off to the‑hospital and the appellant and the witnesses were taken to the Police Station. Head Constable Mukhtar Singh made a report at the Police Station within a few minutes of the occurrence in the course of which he stated: "I was on duty at Napier Road from 8 p. m. to 2 p. m. At about 10 p. m. when I came to the junction of Napier Road and Lidbitter Road, I saw the present accused with an open knife in his hand running towards a gharri standing nearby. I heard cries of "khqon, khoon". I caught hold of the accused who gave his name as Makhankhan and also secured the open knife which was in his hand. It was stained with blood. Daultatkan, Abu Yakqoob and others came and told me that the present accused had stabbed one Bashir Ahmed, a Punjabi young boy who was lying in the pool of blood. 1 took the accused to the injured who stated and pointed that the accused Makhan khan had stabbed him due to previous enmity. In the meantime, H. C. Karim and H. C. Rahmatkhan came there. The injured was then sent to Civil Hospital with H. C. Karim, and I have brought the accused Makhankhan and pro duced the blood stained. knife taken possession of from the accused. There are blood marks on his coat and right hand palm of the accused." It has already been mentioned that the deceased told Head Constable Mukhtiar Singh and the others who came up, when the appellant was taken to the place where the deceased was lying, that the appellant had stabbed him. A statement of the deceased was recorded by Sub‑Inspector Muhammad Sharif at the Civil Hospital on the same night, and another statement of the deceased was recorded by the Additional City Magistrate, Mr. Mir Muhammad the next morning. In both these statements the deceased stated very clearly that the appellant had stabbed him because of enmity on account of certain quarrels which had taken place between the deceased and the appellant. The blood stained knife, which was secured from the hands of the appellant, and the coat which. the appellant was wearing at the time of the incident which appeared to be blood stained, were sent to the Chemical Analyser, who found human blood on both articles. The medical evidence shows that the deceased had an incised wound 2 " x 1", deep to the abdominal cavity, as a result of which the omentum and colon protruded from the left side of the abdomen. The deceased died as a result of this injury on November 29, at 4‑30 p. m. There was no question in the case about the death of the deceased having been caused by this stab‑wound. The appellant did not make any statement before the committing Magistrate beyond saying that he would say what he had to say in the Sessions Court. In the Sessions Court he stated. "Mukhtiar Singh secured me at 10‑30 P. M. where the quarrel had taken place. He said I had committed this murder. The injured Md. Bashir was my neighbour. I lived in the compound and he lived outside it in the land. There was no dispute between me and him. I did not stab him." He denied that the knife and the coat secured by the police belonged to him. This was a case tried by a jury who unanimously found the appellant guilty. There is no suggestion made by the learned Advocate, who appears before us on behalf of the appellant, that there was any misdirection in the learned judges's charge to the jury. There cannot be any question about the evidence in the case abundantly supporting the charge against the appellant. There was only one point which Mr. Castelino, the learned Advocate for the appellant, pressed before us. He argued that the learned judge had erroneously disallowed an application made on behalf of the defence for bringing on the record, under section 33, Evidence Act, the evidence given by Daulatkhan, a witness examined in the Curt of the committing Magistrate who could not be examined in the Sessions Court as he was untraceable and whose whereabouts were not known. It was argued that the appellant was gravely pre judicial as a result of this error, and the conviction of the appellant ought not, therefore, to be upheld. Now, Daulatkhan, who had been examined on behalf of the Crown before the committing Magistrate, had stated in his evidence as follows:-- "I know Bashir since 2 years. He was working with me at Malir. About 3 months back at 9, 10 p. m, I was going along the Napier Road, Bashir was going ahead of me. When I came to the corner Bashir said that he was stabbed. 1 did not know the accused. I saw him only when he was pulled down from the gharry by Mukhtiar Singh. He bad a knife in his hand. I did not see the accused stabbing Bashir. Some people were saying that a Makrani had stabbed him ; but I did not see him ay being stabbed. Bashir fell down on the footpath. Accused was brought to the scene by Mukhtiar Singh. Bashir at that time could not speak. The accused was then taken to foujdari. We took Bashir to the hospital. Bashir said nothing about the cause of fight. After leaving Bashir in the hospital I went to call his father. Some police constables came there besides Mukhtiar Singh." After proving through the evidence of the Sub‑Inspector investigating the case, that the whereabouts of Daulatkhan were not known and that he was untraceable, the Assistant Public Pro secutor stated in the Sessions Court; that he did not wish to bring the evidence of the witness on. the record under section 33, Evi dence Act. Mr. Chandnani the Advocate who appeared on behalf of the appellant then made an application that the evidence of Daulat khan be brought on the record "either as a prosecution witness or as a defence witness." The Assistant Public Prosecutor, however, objected to this, on the ground, that he regarded Daulatknan as a hostile witness:

"as a witness who had not spoken the truth," and argued that as he had not had the right and opportunity to gross‑examine the witness as a hostile witness, the evidence could not be admitted. The learned judge in 'his order upheld the objection He also stated in the order that he had considered the question of taking the evidence on record as that of a Court witness, but was of the opinion that this could not be done, unless both the Crown and the accused had had the right and opportunity to cross -examine the witness. We are clearly of the view that the order made by the learned judge was not correct. The terms of section

33. Evidence Act are very clear with regard to the question now before us. The relevant words in the section are : "Provided that the adverse party in the first proceedings had the right and opportunity to cross‑examine." This is one of the conditions which have to be fulfilled before the evidence given by a witness in a judicial proceeding can become relevant and be admitted in the subsequent proceeding. The first proceeding" in this case was the enquiry before the committing Magistrate. As Daulatkhan was examined as a prosecution witness, the adverse party in the proceeding clearly was the appellant. Apart from the fact that there is nothing in the recorded deposition to show that the evidence of Daulatkhan was regarded as hostile evidence in the Magistrate's Court, a reference to sections 137, 138 and 154, Evidence Act, will make it clear that the expression "the adverse party", is used to distinguish that party from "the party who calls" and the witness, the distinction has nothing whatever to do with the nature of the evidence given by the witness. A party calling a witness does not become "the adverse party" because the witness gives evidence which favours the adverse party or is hostile to the party calling the witness, and the expression `the adverse party in the proviso can only refer to the party which was the adverse party at the time when the deposition was recorded in the first proceeding. There can be no doubt that the appellant had the right to cross‑examine the witness, a question depending upon the legal character of the first proceeding. There is also no question about the appellant having in fact had the opportunity to cross‑examine the witness, a matter of recorded fact. The conditions required by this proviso were thus completely fulfilled, and the recorded evidence of Daulatkhan became relevant for proving the truth of the facts stated therein, by reason of the terms of section 33, as there was no question here about the other conditions requiret3 by the section having been fulfilled. It was, therefore, open to the prosecution or the defence or the Court to bring this relevant evidence on the record. We, therefore, think that the evidence of Daulatkhan ought, under the circumstances to have been brought on the record under section 33, by the prosecution as Daulatkhan had been examined, as a prosecution witness in the Magistrate's Court. The defence and the Court were also entitled, if they so chose, to have the evidence brought on the record like any other relevant evidence. We have, therefore, to see whether the erroneous rejection of this evidence by the learned judge furnishes any ground for ordering a new trial or reversing the conviction. In view of the terms of section 167, Evidence Act, it is necessary for Mr. Castellino to show us that the rejection of this evidence was likely to affect the decision of the case. If w, re satisfied that even if the evidence had been admitted, it ought not to have varied the decision of the Court, the rejection cannot be made a ground for interfering with the decision. The deposition of Daulatkhan has been set out above. We cannot see how the admission of this evidence could have helped the appellant. It is, on the other hand, clear that this evidence even as it stands largely, if not entirely, supports the rest of the prose cution evidence. It would appear that the only criticism which the prosecution had to offer regarding this evidence was that Daulatkhan had not spoken the truth when he denied having actually seen the appellant stabbing the deceased, and heard the deceased implicating the appellant. We consider it to be beyond any question that even if the rejected evidence had been received, it ought not to have led the Court to arrive at a different decision. This is a very clear case, and there is no reason for interfering either with the conviction or the sentence passed. We accordingly dismiss this appeal and confirm the sentence of death passed on the appellant. A.H. Appeal dismissed.