P (PLP)
MUHAMMAD SARWAR‑Petitioner Versus KHUDA BAKHSH‑Respondent
| Citation | P (PLP) |
| Forum / Court | |
| Bench Members | Muhammad Munir, C.J. |
| Parties | MUHAMMAD SARWAR‑Petitioner Versus KHUDA BAKHSH‑Respondent |
Q1: What are the key laws and sections cited in P (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P (PLP)?
The case was heard and decided by the bench comprising: Muhammad Munir, C.J..
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Cite this legal precedent as: P (PLP) (MUHAMMAD SARWAR‑Petitioner Versus KHUDA BAKHSH‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Muhammad Sharif, Assistant to the Advocate‑General for Petitioner.
- A. D. Malik, Advocate, for Respondent.
Headnotes / Summary
Case reported by Additional Sessions Judge, Rawalpindi under section 438 of the Criminal Procedure Code. Criminal Procedure Code (V of 1898), S. 356‑--Magistrate not complying with provisions‑Proceedings set aside and Re‑trial ordered‑Case of acquittal. When the Magistrate had not complied with the imperative provisions of section 356, Criminal Procedure Code in that he had not written out the evidence himself, nor had made a~ memorandum as required by that section nor given any reason for his inability to make such memorandum, proceedings were set aside at the instance of the complainant and re‑trial ordered of accused who had been acquitted by the trial Court. REFERENCE BY SESSIONS JUDGE The facts of this case are as follows :‑ This is a revision petition against the order, dated 27th October 1949 of Mr. Abdul Hamid Khan Niazi, Magistrate 1st Class, Rawalpindi, by which he acquitted. Khuda Bakhsh of the alternate charges under sections 457 and 411, Pakistan Penal Code. In order to appreciate. the allegations and arguments of the petitioner it will be necessary to set out the facts in some detail. On 15th July, 1947 the petitioner, a resident of village Chhelo made a report (Exhibit P. B. in the Magistrate's file) at the police station Golra, 4 miles away, to the effect, that during the preceding night his residential house had been broken into and property consisting of clothes jewellery, utensils, toilet goods and other household accessories stolen. He gave the details of some of these in this report. The police having taken the investigation in band, a good deal of property, was said to have been recovered from the house of Khuda Bakhsh of Golra per recovery memo. Exhibit P. A. on 11th February 1948, which having been identified as belonging to the complainant, Khuda Bakhsh was sent up for trial in the alternative under sections 457 and 411 Pakistan Penal Code. The case was during its early stages in the Court of Mr. A M. Sheikh, Magistrate, 1st Class, Rawalpindi, but according to the allegations of the petitioner it was actually heard only by the Reader of the Court and not by the Magistrate himself. The statements of three witnesses were recorded in that Court and then the case was transferred to Mr. Niazi on 16th May 1949. He recorded t he rest of the evidence consisting of 5 witnesses. The accused denied the charge but led no defence. He was however acquitted on the ground that the articles alleged to have been recovered from him had according to the complain ant's own statement dated 9th March 1949 been supplied by the complainant to the police. In this revision petition which though filed by the com plainant has been supported by the Crown vide the application dated 19th December 1949 filed by the Additional Public Prose cutor), it has been argued firstly that the statement attributed to the petitioner was never made by him, and secondly, that legally the Magistrate who decided the case was not competent to rely on the proceedings held by the Court before which the, case was pending prior to this transfer. To prove the first allegation it has been argued that the statement dated 9th March 1949 was recorded by Reader of the Court not at the dictation of the Magistrate, but independently of him when the Magistrate was busy with some other work pertain ing to the Treasury he being the Treasury Officer as well, and that whereas the complainant had throughout the statement made by him contended that the articles referred to by him had been stolen from his house, and had been recovered from the house of the accused and later on identified by the complainant, the last sentence had been smuggled by the Reader without any authority. In the affidavit, dated. 15th November 1349 filed by the petitioner with the petition it was pointedly averred that this mischief had been played by the Reader at the instance of the accused in order to help him. It cannot be denied that neither the statement of the complainant or for the matter of that the statements of P. Ws. 2 and 3 and all the orders on the file were recorded by the Magistrate himself nor is there any certificate as required by section 356, Criminal Procedure Code showing that the Magistrate was for any reason unable to record proceedings himself and had dictated the same to the Reader. I am inclined to agree with the petitioner that it was the Reader who was functioning for the Magistrate all this while. Had it not been so, the case would not have been adjourned on 9th March 1949, 15th March 1949, 25th March 1949, 14th April 1949, 25th April 1949, and 12th May 1949 (only one witness having been examined on 9th March 1949, another on 14th April 1949 and a third on 25th April 1949) without passing appropriate orders for tightening up the prosecution to produce their entire evidence. In fact, if the statement attributed to the complainant had been made by him and the Court were cognizant of it, no further proceedings should have been held and the prosecution should have been called upon to explain the circumstances under which the articles in question had been planted on the accused. It is further noteworthy that the proceed ings dated 9th March 1949, 15th March 1949, 14th April 1949, 25th April 1949 and 12th May 1949, were held in the absence of the Prosecution counsel‑the application by the P. D. S. P. referred to in the order dated 15th March 1949 seems to have been received not personally on that date but previously, because the presence of the P. D. S. P. or any representative of his is not mentioned. All this shows that the petitioner's allegations are correct and it is significant that even though these allegations were repeated vehemently at the time of arguments, the other party did not file a counter‑affidavit or challenge them. The learned counsel for the respondent did bring to my notice the fact that the Sub- Inspector of Police when examined as P. W. 4 on 28th June 1948 before Mr. Nazi was definitely asked if the articles in question, had not been supplied by the complainant and argued that this had obviously been done in consequence ‑of the complainant's admission of the earlier, date. But the reply is that if as alleged the statement attributed to the complainant had been inserted at the instance of the accused, he could be aware of it and would have tried to take advantage of it though the complainant would not be cognizant of the mischief. There are certain other circumstance which lend support to the petitioner's allegations. After having referred at length thrice to these articles as having been stolen from his house and recovered from the accused the complainant could not have been so foolish as to wash out the whole case by volunteering one sentence at the end. Then after this statement the prosecution led evidence to prove the recovery from the accused's house and Karam Shah even offered to identify the articles, which however do not appear to have been shown to him. I am therefore, satisfied that the petitioner had not made the statement attributed to ‑ him and evidently the Reader had taken advantage of the Magistrate's carelessness in giving him a carte blanche and preparing an incorrect record. That some other Magistrate in this District also allow proceedings to be recorded by their Readers without satisfying the provisions of section 356, Criminal Procedure Code cannot be denied. I have just to‑day decided another, case Revision petition No. 202/9 of 1949 Sh. Abdur Rahim v. Muhammad Nazir) in which the entire record had been prepared by the Reader and not by the S. D. M., Murree. In fact, allegations have been made at times that evidence had in some cases been recorded when the Magistrate was not even present in the Court precincts, the usual practice being to attend to other work or indulge in gossips in, the retiring room, while the Reader and stenographer are busy recording evidence at, the dictation of the parties' counsel. All this is bad enough because if those whose duty it is to punish other delinquents are themselves flagrantly disregarding the very law which they are paid to administer, there would be end to all justice. I have mentioned this to draw the attention of the honourable the High Court to this regrettable state of affairs for such action as they may deem fit to pull up the delinquents. The above finding alone would vitiate the proceedings. But even on the legal issue raised by the petitioner he stands on firm ground. This case was tried under the Punjab Public Safety Act 1947 which had deleted section 350, Criminal Procedure Code. This section consisted of two portions, the first being enabling and the second disabling. The Legislature evidently desired to delete the disabling provision but even the enabling one also went off went the entire section was deleted. The general principle is that a Criminal Court (other than a Court of appeal) cannot decide a case on evidence recorded by someone else. If any authority were needed reference may be made to I. P. R. 1890. It was by virtue of the enabling provision of section 350, Criminal Pro cedure Code that Magistrates were empowered to consider the evidence recorded by their predecessors in office. That having been deleted we reverted to the general law and Mr. Niazi should have started the case de novo. Not having done so the decision given by him must be quashed and retrial ordered. Before taking leave of this aspect of the case, I might mention that I am fully conscious of the provision made in section 559, Criminal Procedure Code. But that seems to have been enacted merely to enable Courts to pass miscellaneous orders like confiscation of bail bonds and proceedings under section 476, Criminal Procedure Code and cannot be availed of as a substitute for the enabling portion of section 350, Criminal Procedure Code. It may be noted that Mr. Niazi wrote a very laconic judgment. He should have discussed the evidence of the articles which he seems to have accepted as convincing as is shown by the sentence; the learned defence counsel has pointed out certain minor discrepancies in the recovery evidence. They are however not serious and are ignored " (paragraph 2 of the judgment). If he really believed that the articles had been produced by the complainant he should have taken action against him, the police and the witnesses deposing about the recovery from the accused. Not having done so, it is clear that he did not believe that any planting had been done. I myself have no doubt in my mind that the prosecution case was quite correct and the statement attributed to the complainant was never made by him and that there was no question of planting the articles on the accused. I, therefore, accept the request of the petitioner and send up the case to the Honourable High Court with the recommendation that since there has been serious miscarriage of justice; the order of acquittal dated 27th October 1949, passed by Mr. Niazi be set aside and fresh trial ordered besides taking such action as may be considered advisable in the light of the facts set out above. Announced to the parties' counsel and the respondent. The proceedings are forwarded for revision on the following grounds :‑
1. The last three sentences of the complainant's statement, dated 9th March 1949 were never stated by him, and had been smuggled in by the Reader of the Court who had recorded the statement not from the dictation of the Presiding Officer but independently.
2. The Magistrate acquitting the accused could not pass any order on the strength of the evidence not recorded by him.
3. There has been serious miscarriage of justice and a re‑trial is necessary.
Judgment & Decree
The above finding alone would vitiate the proceedings. But even on the legal issue raised by the petitioner he stands on firm ground. This case was tried under the Punjab Public Safety Act 1947 which had deleted section 350, Criminal Procedure Code. This section consisted of two portions, the first being enabling and the second disabling. The Legislature evidently desired to delete the disabling provision but even the enabling one also went off went the entire section was deleted. The general principle is that a Criminal Court (other than a Court of appeal) cannot decide a case on evidence recorded by someone else. If any authority were needed reference may be made to I. P. R. 1890. It was by virtue of the enabling provision of section 350, Criminal Pro cedure Code that Magistrates were empowered to consider the evidence recorded by their predecessors in office. That having been deleted we reverted to the general law and Mr. Niazi should have started the case de novo. Not having done so the decision given by him must be quashed and retrial ordered. Before taking leave of this aspect of the case, I might mention that I am fully conscious of the provision made in section 559, Criminal Procedure Code. But that seems to have been enacted merely to enable Courts to pass miscellaneous orders like confiscation of bail bonds and proceedings under section 476, Criminal Procedure Code and cannot be availed of as a substitute for the enabling portion of section 350, Criminal Procedure Code. It may be noted that Mr. Niazi wrote a very laconic judgment. He should have discussed the evidence of the articles which he seems to have accepted as convincing as is shown by the sentence; the learned defence counsel has pointed out certain minor discrepancies in the recovery evidence. They are however not serious and are ignored " (paragraph 2 of the judgment). If he really believed that the articles had been produced by the complainant he should have taken action against him, the police and the witnesses deposing about the recovery from the accused. Not having done so, it is clear that he did not believe that any planting had been done. I myself have no doubt in my mind that the prosecution case was quite correct and the statement attributed to the complainant was never made by him and that there was no question of planting the articles on the accused. I, therefore, accept the request of the petitioner and send up the case to the Honourable High Court with the recommendation that since there has been serious miscarriage of justice; the order of acquittal dated 27th October 1949, passed by Mr. Niazi be set aside and fresh trial ordered besides taking such action as may be considered advisable in the light of the facts set out above. Announced to the parties' counsel and the respondent. The proceedings are forwarded for revision on the following grounds :‑
1. The last three sentences of the complainant's statement, dated 9th March 1949 were never stated by him, and had been smuggled in by the Reader of the Court who had recorded the statement not from the dictation of the Presiding Officer but independently.
2. The Magistrate acquitting the accused could not pass any order on the strength of the evidence not recorded by him.
3. There has been serious miscarriage of justice and a re‑trial is necessary. Muhammad Sharif, Assistant to the Advocate‑General for Petitioner. A. D. Malik, Advocate, for Respondent. ORDER OF THE HIGH COURT This is a case reported by the Additional Sessions Judge, Rawalpindi, with recommendation that the ‑ order of acquittal be set aside and a retrial ordered. On 15th July 1947, Muhammad Sarwar's house was broken into and some articles consisting of ornaments, clothes and utensile stolen. Subsequently, some of these articles, namely. a pillow‑cover, a metal plate and .some clothes, are alleged to have been recovered 'from the possession of Khuda Bakhsh. Accordingly, Khuda Bakhsh was accused of‑ offences under section 457 and 411 of the Penal Code, before Mr. A. M. Sheikh, Magistrate, 1st Class, Rawalpindi. Giving evidence in the Court of that Magistrate, Muhammad Sarwar stated in detail the story of the theft, his making the first information report, the recovery of articles from the house of Khuda Bakhsh and his having identified the property so recovered. At the end of his statement, however, Muhammad Sarwar is recorded to have said that he himself had given the pillow‑cover, the plate and the other clothes to the police. After the statements of some more witnesses were recorded, Mr. Sheikh was succeeded by Mr. Abdul Hamid Khan Niazi, who recorded the remaining evidence and acquitted Khuda Bakhsh on the ground that the articles were not proved to have been recovered from the possession of the accused because, according to the complainant's own statement, he himself had produced these articles before the police. Against this order of acquittal Muhammad Sarwar made a petition to the Sessions Judge, in which he denied having made before Mr. Sheikh the statement that he himself had produced before the police the articles that were alleged to have been recovered from the possession of the accused. He further alleged that his statement on which reliance was placed by Mr. Abdul Hamid Khan Niazi, had not been recorded by or in the presence of Mr. Sheikh but by his Reader in Mr. Shiekh's absence. The learned Additional Sessions judge has accepted this allegation of Muhammad Sarwar as true, and on this and certain other grounds, has recommended interference with the order of acquittal and a direction for retrial. Before I heard this petition I issued a notice to Mr. Sheikh requiring him to show cause why the petition should not be allowed on the grounds stated by the Additional Sessions Judge. In his explanation, Mr. Sheikh has denied that any part of the evidence on which reliance was placed by Mr. Abdul Hamid Khan Niazi, was recorded in his absence by his Reader and has claimed that the whole of the evidence was recorded by his Reader in his own presence and hearing and under his personal direction and superintendence. In view of these conflicting allegations it will, I think, not be fair to hold that the complainant's version is true or that Mr. Sheikh's explanation is correct. The order that I propose to pass does not' make it necessary for me to give a finding on this part of the case. The acquittal must be set aside on the short ground that neither Mr. Sheikh nor Mr. Abdul H4mid Khan Niazi complied with the provisions of section 356 of the Code of Criminal Procedure, according to which the evidence of each witness has to be taken down in writing in the language of the Court by the Magistrate or in his presence and hearing and under his personal direction and superintendence, and where the evidence is not taken down in writing by the Magistrate, he is bound to make a memorandum of the substance of what each witness deposes, which memorandum has to be written and signed by the Magistrate himself, unless he is prevented from making such a memorandum, in which case the Magistrate is required to state reasons for his inability to make it. No regard has been paid to these imperative provisions of the Code by either bf the Magistrate, because neither of them wrote the evidence himself, or made the required memorandum or gave the reasons of his inability to make such a memorandum. The perusal of many a record of evidence prepared by the Magistrates in this Province has disclosed that the Magistrates are in the habit of flagrantly disregarding the provision of section 356 of the Code of Criminal Procedure. They do not, as required by that section, write the evidence themselves and, where such evidence is dictated by them to their Readers, they do not prepare any memorandum in their own hand, nor record reasons for their inability to make such memorandum. The learned Additional Sessions judge himself states in his reference that several cases have come to his notice where the provisions of this section are grossly disregarded by the Magistrates and the work of taking down evidence is delegated by them to their Readers. It is a deplorable state of affairs and the Magistrates require to be categorically told that the procedure which they are following, is contrary to law and may result in their being required to prepare the record afresh in accordance with law and may also expose them to a charge of negligence and inefficiency. In the present case, if Mr. Sheikh had himself prepared a memorandum of the evidence of Muhammad Sarwar, there would have been no occasion for the complainant to make the allegation that he has made, and if any such allegation had been made, it could at once have been contradicted by the Magistrate's own record to which the law attaches a presumption of unerring verity. If Magistrates record evidence in the manner prescribed by the Code, they will soon discover that by following the law in this respect, they will acquire an intelligent interest in the proceedings before them and a better comprehension of the facts and be relieved of the difficulty, which must confront them when they come to write the judgment, of reconstructing a mere scrawl or deciphering hopeless hieroglyphics, which the Urdu handwriting of many of their Readers often is. In the present case, for the reasons I have given, I see no alternative but to set aside the order of acquittal and to direct Khuda Bakhsh to be retried. The case is remitted to the District Magistrate of Rawalpindi with the direction that it may be sent for disposal either to Mr. Abdul. Hamid Khan Niazi or to some other competent subordinate Magistrate. A. H. Retrial ordered.