P L D Lahore 134 (PLP)

| (P. W. 6) | | | | | | | | | Mst. Naseerat Jan Mst. Makhni | (P. W. 13) (deceased) | | | |_____________________________________________ | | Rashid Afraz (P. W. 7) (deceased) The seven persons shown as deceased in the above table are the alleged victims of the appellant. The incident took place on the night following the 22nd May 1948 in the village Numbromal which is sixteen miles from the Police Station of Murree. The informant Balor Khan (P. W. 5) was one of the injured. He was carried to the Police Station in a wounded condition and made the report at 9 a. m. In this report he stated that he and his brother Kala deceased had been instrumental in bringing about the betrothal of the accused with Mst. Naseerat Jan (P. W. 13) with the consent of her uncle Rahim Dad (P. W. 17), her own father being dead. The accused was employed in the army, while his father lived in the house of his nephew, Kala deceased. After having been discharged from the army, he went to Kashmir. Twelve days before the present incident he had returned from Kashmir with a rifle and asked the informant and Kala to get him married. Kala said to him that he should arrange for the expenses of the marriage but he told Kala that this should be done by the latter as he had been receiving all the accused's earnings in the past. As, however, his marriage was not celebrated, he came to the informant's house at midnight and threw a hand grenade as a result of which the informant's sons, Rashid and Afraz, and the informant himself were injured. The informant took Afraz inside the house. 1n the meantime the accused set fire to the house and Afraz was burnt to death. The accused then went over to the house of Kala deceased which is, at, a distance of 32 korams, fired rifle shots and set fire to the house. Kala was seriously injured and died seven days later of his injuries. Kala's wife, Mst. Rahim Jan, and his niece, Mst. Jannat Noor, died immediately. Even the accused's own father, Attar Khan, who was in the same house, died of a rifle shot. According to the report, the first person to arrive at the spot was Muhammad Ajaib (P. W. 2), a collateral of the informant. The appellant remained absconding until the 21st August 1948, when Muhammad Roshan of Potha (P. W. 26) came across him. Ire was accompanied by a Pathan while Muhammad Roshan, accompanied by his brother Muhammad Khan and some other persons was returning from Murree to Potha. Muhammad Roshan had heard that the accused was absconding but he did not know him personally, though his brother Muhammad Khan knew the accused. They questioned him by reason of some suspicion and were told that he was a, mujahid and belonged to the Hazara District. They arrested him and his companion as their conduct was suspicious and subsequently the accused disclosed his identity and admitted that he had committed murders and was absconding. In the morning he was produced before the police. It would appear that some prize was laid on the accused's arrest, for Muhammad Roshan and his companions have already received an award of Rs. 200 and were hoping to receive more. When the trial opened and the charges were read out to the appellant, he stated that he was innocent. At the conclusion of the trial he pleaded not guilty and stated that on the day of the alleged incident he was on the Uri front. He admitted that he had been arrested by Muhammad Roshan and others when he was returning from the Kashmir front but denied having made any confession to Muhammad Roshan. Questioned as to whether he had any explanation for having been implicated in a false case, tie gave the following statement:‑ "I was in service at Bombay for 12 years and thereafter in the military for six years. I had beep sending all my earnings to cry father who was staying with Kala Khan, deceased. There may have been some trouble between Kala Khan, his brother Balor Khan and my father, who is now dead, and it appears that I have been falsely implicated on that score ". He produced no defence. The achievements of the appellant are briefly stated in the charge‑sheet. The first thing that he did was to throw a grenade in the courtyard of the house of Balor Khan (P. W. 5), wounding Balor Khan and his two sons, Afraz deceased and Rashid (P. W. 7). When they shut themselves into the house, he set fire to it. The inmates of the room escaped through a window, except Afraz, whose injury had apparently overpowered him and who was consequently burnt to death. Next, the appellant went over to the house of Kala deceased where he threw another grenade, causing injuries to Kala. Then by means of a rifle he shot his own father Attar Khan, Kala, the latter's wife Mst. Rahim Jan and his niece Mst. Jannat Noor. Then he set fire to the house and 141st. Rahim Jan and Mst. Jannat Noor, who could not escape, were burnt to death. Next, he went to the house of Mst. Bibo (P. W 14) and killed Mst. Makhni, cousin of his fianc e, Mst. Naseerat Jan, and Mst. Balor Jan, mother of Mst. Naseerat Jan. Mst. Naseerat Jar; also was wounded. Finally, he set fire to the houses of MO. Balor Jan and Rahim Dad (P. W. 17). It should be noticed here that at the time of the occurrence Mst. Balor Jan and her daughter Mst. Naseerat Jan were not in their house but in the house of Mst. Bibo. Witnesses of the first incident in the house of Balor Khan (P. W. 5) are Balor Khan himself, P. W. 2 Muhammad Ajaib a collateral and a neighbour, P. W. 3 Ahmad Khan, another neighbour, and P. W. 6 Mst. Sahawal Jan wife of Balor Khan. P. W. 8 Mukhtar is a neighbour to whose house Balor Khan went for shelter and told him what had happened, while P. W. 9 Muhammad Elahi is a person to whose house.Mst. Sabawal Jan similarly went for shelter. The witnesses of the second incident in the house of Kaia deceased are Muhammad Ajaib (P. W. 2), Ahmad Khan (P. W. 3), Mst. Nadir Nishan (P. W. 10) and Khan Zaman (P. W. 12). These axe neighbours. Further, Kala himself made a dying statement. The witnesses in respect of the incident in: the house of Mst. Bibo are Mst. Bibo herself as P. W. 14, Mst. Naseerat Jan (P. W. 13) and Fateh Sher son of Mst. Bibo Whose statement was recorded under section 512 of the Code of Criminal Procedure but who has since died. Witnesses of arson in the houses of Mst. Balor Jan deceased and Rahim Dad are Mir Akbar (P. W. 15) and Hukam Dad (P. W. 16). Rahim Dad himself was on his threshing flour. The evidence is so conclusive and impartial that it will be unnecessary to examine it in any detail except with the object of completing the picture. In his dying statement recorded by a Tahsildar, Kala stated that he and the appellant being cousins had gone together to Bombay where they worked in the dock yard. Then they returned home and joined the Army. The accused was discharged from the Army during the previous year and then joined the Azad Kashmir Army He returned from Kashmir about 12 days before the incident with a '303 rifle and an army bag. He asked Kala to get him married and bear the expenses of marriage. Kala told him he had no money, which made the appellant angry. Kala stated that the appellant was betrothed to Mst. Naseerat Jan with the consent of Rahim Dad, uncle of the girl. On the night of the occurrence, while Kala was sleep ing in his house together with his uncle Attar Khan, father of the appellant, his niece Mst. Jannat Noor and his wife, they heard the explosion of a bomb. Kala got up and started remov ing the beds to the verandah in the belief that a bomber aeroplane was flying. About this time he saw that the house was ablaze with fire and then he saw the appellant throwing a grenade which hit Kala on the right thigh. Kala fell down. Shortly afterwards a bullet struck him an the right arm. His wife and niece were also wounded while Attar Khan received a rifle shot after having been bayoneted. Muhammad Ajaib (P. W. 2), whose house is near that of Kala, woke up with the explosion of a bomb and heard rifle shots. Then he saw that the houses of Balor Khan and Kala were ablaze arid he beheld the appellant with a bundle of small sticks burning. Then he heard a noise that Kuckoo, which is the appellants nickname, had committed murders and set fire to houses. Then be saw the appellant in the house of Kala with a rifle in his hand‑and shouting that if anyone approached him, he would be shot. The distance between the houses of Balor Khan and Kala is about twenty yards while the house of the witness is a hundred yards from that of Balor Khan. The incident in the house of Mst. Bibo (P. W 14) requires to be separately stated. Although the distance of this house from those of Kala and Balor Khan is not given, it would appear to be far enough to have made the confusion and have created in those houses unknown here. Mst. Bibo states that she had made tea for herself when the appellant came and enquired for Mst. Balor Jan. Upon finding that she was in this house, the appellant woke her up and asked her to go to their own house and make tea for him. Mst. Bibo, however, invited him to have tea with her and gave him a cup. The appellant then said he would take away Mst. Naseerat Jan, add ing that he had "settled" with others. In the meantime lust. Makbni came into the house. The appellant asked her why she had come and she replied that it was only a casual visit. He thereupon shot her with his rifle and then shot Mst. Balor Jan. As Mst. Naseerat Jan was holding her mother, she also received injuries with further shots which were fired. Mst. Naseerat Jan (P. W.13) has borne out the evidence of Mst. Bibo. We have gone through the evidence of the witnesses, parti cularly their cross‑examination, but have found nothing useful for the appellant. The witnesses are either relatives or disin terested neighbours and there is not anywhere a trace of bias or ill-will against the appellant. It would appear as though he had been seized by an evil spirit and had made up his mind to destroy every person or thing who or which was in any way connected with his fianc e. Even the killing of his own father does not seem to have been accidental. There is no indication or suggestion of an alibi in the evidence of the witnesses and the possibility that he has envisaged in his statement of "some trouble" between his father and Kala cannot but be regarded as remote. We have no doubt that the appellant was the person who caused all these deaths and who set fire to the various houses. It was objected by learned counsel for the appellant that the trial was illegal for, while under section 35 of the Punjab Public Safety Act, 1947, the procedure to be adopted was to be that of the trial of summons‑cases as prescribed in Chapter XXV of the Code of Criminal Procedure, the learned Sessions judge had actually recorded the evidence, not as required by section 355 but as prescribed by section

356. Section 355, so far as is relevant to the present case, requires that in summons‑cases tried before a Magistrate other than a Presidency Magistrate, the Magistrate shall make a memorandum of the substance of the evidence of each wit ness as the examination of the witness proceeds, that such memorandum shall be written and signed by the Magistrate with his own hand and shall form part of the record and if the Magistrate is prevented from making a memorandum, he shall record the reason of his inability to do so, and shall cause such memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record. Section 356 requires that "in all other trials before Courts of Sessions and Magistrates the evi dence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence, and shall be signed by the Magistrate or Ses sions Judge." Learned counsel contended that since section 355 prescribed the procedure to be adopted in the recording of evidence in summons‑cases, the learned Sessions judge should have himself made a memorandum of the substance of the evidence or should have given a reason why he was prevented from doing so. The objection is not of any substance, for even in summons‑cases, where a Magistrate thinks fit, he is permitted by section 358 to take down the evidence of any witness in they, manner provided in section

356. Apart from this fact, section 35 of the Punjab Safety Act, 1947, does not say how the evidence should be recorded but merely states that "in all cases the procedure pres cribed for the trial of summons‑cases by Chapter XX of the Code shall be adopted," and since Chapter XXV in which sections 355 and 355 occurs deals with the mode of taking and recording evidence, not with the procedure prescribed by Chapter XX for the trial of summons‑cases, the objection is clearly without force. But even without those considerations it will be noticed that section 355 prescribes the mode of taking and recording evidence "in summons‑cases tried before a Magistrate, not in such cases when tried before a Sessions Judge. We have noticed, however, suo motu, another serious ob jection to the mode of recording evidence, for while section 356 (1) requires that in all trials other than those of summons. cases the evidence of each witness shall be taken down in the language of the Court either by the Presiding Officer himself or in his presence and hearing, there is a further requirement in subsection (3) that where the evidence is not taken down by the Presiding Officer himself, "he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposits; and such memorandum shall be written and signed by the Magistrate or Sessions judge with his own hand and, shall form part of the record." If the Magis trate or Sessions judge is prevented from making a memo randum as above required, he shall record the reason of his inability to make it. Learned counsel for the appellant relied on Emperor v. Jagmohan Singh (A. I. R. 1937 Oudh 126) for the view that where a Magistrate had not made a memorandum of the substance of the evidence with his own hand, and the only reason recorded by him for his not doing so was pressure of other work, the trial was vitiated. In that case, however, I find that the trial was set aside because "when a Magistrate is engaged in the trial of a case, it is his duty to give his undivided attention to it and in view, of the Magistrate's own explanation it, the present case it is clear, that he was far from giving his undivided attention to this case. In the circumstances, it could not be said that there was any legal anti proper trial of the case at all." Another case in favour of the appellant is Salim Baz Muhammad v Emperor (A. I. R. 1943 Peshawar 21) in which it was held that where the judge without, recording any reasons as to his inability to take down the evidence in his own hand dictates‑the evidence in open Court to a stenographer who takes it down in shorthand and subsequently transcribes it into a typed record in English and what is signed by the Judge and forms part of the record is not the shorthand notes but the typed record, the procedure is open to the gravest objections and constitutes, an irregularity so vital as to vitiate the trial. No reference was made in this case to any previous authority. We are of the opinion that the Privy Council case Abdul Rahman v. The King Emperor (I. L. R. 5 Rangoon 53), which is in relation to section 360 of the Code, governs the present case also. There the appellant was tried by a District, Magistrate ant convicted. At the trial the depositions of witnesses were read over to them while the ease otherwise proceeded and the depositions of some of the witnesses were handed to them so that they should themselves read them. Section 360 of the Code of Criminal Procedure provides that the deposition of each witness should be read over to him in the presence of the accused or his pleader. It was held by the Privy Council that although the procedure adopted by the District Magistrate constituted an irregularity, it was curable under section 537 of the Code as it has not resulted in a failure of justice. It would be noticed that Chapter XLV of the Code deals with irregular proceedings, that section 529 and 530 respectively give a list of irregularities which do not vitiate proceedings and those which do vitiate proceedings and that the present irregularity' occurs neither in the one section nor in the other. It will then be noticed that according to section 537, subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered .......on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during the trial ............... unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice". In Nayeb Shahana v. Emperor (A. I. R. 1934 Calcutta 636) where the Sessions judge had neither recorded the evidence himself nor made a memorandum of the substance of what the witnesses deposed, but the evidence had been taken down in the presence and hearing and under the personal direction and superin tendence of the judge, as in the present case, and the depositions of the witnesses were read over and interpreted to them in the presence of the accused and their pleader, it was held that this was an irregularity which was curable under section 537 of the Code. But while we hold that this is a curable irregularity, we do not wish that it should be repeated and would impress upon Magistrates and judges recording evidence, where they do not record it themselves, to bear in mind the express provisions of subsection (3) of section 356 and to make their notes, of the substance of what each witness deposes so that it should be unnecessary for the High Court to decide from time to time whether, when the Magistrates and judges fail to make a memorandum of the substance of the evidence, they commit an irregularity which .is curable under the law. We dismiss the appeal and confirm the sentence of death passed upon the appellant. A. H. Appeal dismissed.