P L D 1952 Federal Court 148 (PLP)

CORNELIUS, J.-This appeal filed by special leave through the jail authorities by a prisoner Allah Yar, who is under sentence of death for the offence of murder, raises a question regarding the duty of a Crown prosecutor to produce and examine at the trial all witnesses cited in the calendar sub mitted with the case. The facts of the case are few and simple. The appellant has a sister Mst. Mehran, the widow of one Muhammad Nawaz whose brother Yaran had, shortly before the murder, been pressing Mst. Mehran to pay him some monies which had been held on his account by her deceased husband. This had led to an abusive altercation between the parties on the even ing of the 11th July, 1950. One of the witnesses to this alterca tion was said to be a man named Saadullah. The following morning, Majid, a brother of the aforesaid Yaran, was walking back towards the village at sunrise when, as the prosecution alleged the appellant Allah Yar, being armed with a spear, made an attack on him and after a short chase, brought him down and caused his death by means of blows with his spear, resulting in two penetrating wounds in the left side of the chest. Death was almost instantaneous. The police report was made without delay and contained the names of three eye witnesses of the attack, namely, Mst. Mundan alias Muradan. Sher Jang and Muhammad Nawaz, of whom the two first-named were examined at the trial and full supported the Crown case. Muhammad Nawaz had stated in the Committing Court that he knew nothing about the murder and was in a different village when it took place. He denied that he had received al bribe from the defence for giving false evidence. In spite of this, his name was included in the calendar of prosecution wit nesses, but at the trial, the Crown prosecutor did not call him in evidence declaring that he had been " won over " by the defence. The witness Saadullah was also not called for the Crown, on the same ground. Allah Yar was convicted by the Sessions Judge under section 302, Pakistan P. C., and sentenced to death. He appealed to the High Court at Lahore. In the High Court reliance was placed on the evidence given by Sher Jang and Mst. Murandan as eye-witnesses. As regards Muhammad Nawaz, the sole observation in the judgments of the high Court is to the effect the inclusion of in the report excludes the suggestion that the report was made after consultation among interested persons and should there fore be received with caution. No reference was made to the circumstance that Saadullah was not examined by the prose cution. Holding that, on the evidence. Allah Yar had been rightly convicted and that the sentence of death was appro priate, the High Court dismissed his appeal and confirmed the sentence of death. Special leave was granted in this case for the purpose of examining whether the course of justice had not perhaps been deflected by the failure of the prosecutor to produce the two witnesses Muhammad Nawaz and Saadullah. Saadullah's evi dence relates to an incident prior to the murder affecting the relations between the parties, and it was not, and cannot be, contended that by the failure to examine him at the trial, any prejudice was caused or was likely to be caused to the accused person or to the due course of justice. It was urged, however, that Muhammad Nawaz, an alleged eye-witness, who was believed by the prosecution to have first-hand knowledge of the exact circumstances in which Majid was killed, should have been produced at the trial, irrespective of any statement that he might have made at any earlier stage. It is necessary to mention that Muhammad Nawaz is related to the other prosecution witnesses and to the deceased and further that having been cited in the calendar, it may be presumed that he was present at the trial and was thus available for examination on behalf of the defence, if required. The point for consideration is whether, in his case, the action taken by the Crown prosecu tor and the Court meets the requirements of justice and is in accordance with the established practice affecting the duty, in this respect, of a Crown prosecutor, particularly in relation to witnesses of doubtful reliability. The practice has been authoritatively declared in a number of decisions by the Privy Council, as well as the Indian High Courts. In the most recent case from the Privy Council viz. Malak Khan v. King Emperor, (72 I A 305) it was observed as follows : "It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation com pelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution". Their Lordships of the Judicial Committee went on to observe that where such witnesses are not produced, the Court has a duty to take into consideration such absence, but never theless must judge the evidence as a whole and, setting the evidence led at the trial against the circumstances that all pos sible witnesses have not been produced, arrive at its conclusion accordingly. In an earlier case, viz., that of seneviratne A I R 1936, P C 289 the Judicial Committee declared its opinion on the narrower question of the duty of the prosecution in relation to witnesses cited by them. when they have reason to regard as unreliable. In that case every available witness for the prosecution had been called and examined, under the belief that there was an absolute obligation to do so. The result on the conduct of the trial was characterised by the judicial. Committee as "unhappy" and their Lordships proceeded to observe as under : "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions ; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considera tion of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence." Observations having direct reference to the case of untruth ful witnesses occurred in a number of judgments of the Indian Courts, from which we select two cases for citation. A Full Bench of six judges of the Allahabad High Court in the case of Queen Empress v. Durga I L R 16 All. 84 observed as follows : "We have come to the conclusion that it is entirely in the discretion of the Public Prosecutor conducting the case for the Crown to call or not to call any witness or witnesses at a Sessions trial appearing in the calendar as witnesses for the Crown. It appears obvious to us that it cannot be the duty of a Public Prosecutor acting on behalf of the Government and the country to call or put into the witness box for cross -examination a witness whom he believes to be a false or an unnecessary witness." And in the important Nankana Sahib case of 1922, Narain Das v. The Crown I L R 3 Lah. 144 a Division Bench of the Lahore High Court dealt with the question of a number of prosecution witnesses who before the Committing Magistrate had resiled from the statements which they had made in the course of the police investigation. At the trial, these witnesses were produced for the Crown, and the Public Prosecutor obtained permission to cross-examine them "from the very start." The learned judges of the Lahore High Court disapproved this practice observing as under : "In our opinion it was certainly the duty of the prosecutor to have their witnesses in attendance so that they could be examined by the defence, if necessary, though he was not bound to produce witnesses who were considered by him to be false." The circumstances already mentioned concerning the witness Muhammad Nawaz combine to raise the strong probability that in the Committing Court, he had not adhered to the truth, and in any case, his showing in those proceedings furnished reason able ground for the Crown prosecutor to believe that he was not a truthful witness. On the principles laid down in the authorities cited above, the Crown prosecutor exercised a right discretion in declining to call Muhammad Nawaz as a witness for the Crown. All possibility of prejudice to the accused or to the due course of justice is excluded by the fact that, having been cited in the prosecution calendar. Muhammad Nawaz was available at the trial to be called and examined by the defence, if they thought it necessary. We accordingly dismiss this appeal. A. H. Appeal dismissed.