P L D 1961 (W (PLP)

(g) Precedents

‑Decisions of Court of other countries‑When can have persuasive value. Decisions of Courts of other countries can have a persuasive value only if they have dealt with a provision of law which is the same as the one to be interpreted or very similar to it. M. Saleem for Appellants. M. Asghar Ali for Respondent. SHABIR AHMAD, J. Ahmad Khan son of Sultan Mahmud, Muzaffar Khan, Muhammad Islam, Muhammad Afzal, Sher Muhammad, Abbas Khan and Ahmad Khan son of Surkhru, all awans, residents of village Kuradhi in the District of Shahpur were tried under sections 302/149 and 148 of the Pakistan Penal Codes, and sentenced to transportation for life each under section 302/149 and to two years' rigorous imprisonment under section 148 of tale Pakistan Penal Code on the 29th of April 1959. All the seven convicted persons have presented this joint appeal.

2. The prosecution case against the appellants was that they had, in village Kuradhi in the afternoon of the 1st of December 1957, armed themselves with 'hatchets. and heavy sticks and attacked Sher Khan who died the same night in the Civil Hospital at Nowshera of the injuries received by him. One of the motives was stated to be that Sher Khan deceased had married Mst. Fateh Khatun, a relative of some of the appellants, and another that he had fired at Bahawal, who was the father of Jafar from whom the deceased had obtained a divorce of Mst. Fateh Khatun. After the receipt of the injuries, Sher Khan was carried to the Civil Hospital at Nowshera where his statement was recorded by Abdul Bashir Ahmad, who was at that time posted as Head Constable at Police Station Nowshera, to whom information had been sent by the doctor in charge of the hospital. The statement of Sher Khan deceased was recorded about 9 p.m. and treated as the first information report in the case. The report mentioned all the seven appellants as the assailants of the informant and added that Mst. Sahib Khatoon and Mst. Nawab Zadi had witnessed the occurrence.

3. At the trial, the prosecution produced Hasan Din (P.W. 3) Mst. Sahib Khatoon (P. W. 4) and Mst. Nawab Zadi (P. W. 5) as eye‑witnesses of the occurrence. The first information report was also tendered as evidence because its maker having died it was treated as his dying declaration admissible in evidence under section 32 of the Evidence Act. The prosecution produced Allah Yar (P. W. 6) who deposed that Sher Khan had told him that all the seven appellants had attacked him, but the statement of this witness was not accepted by the learned trial Judge. Evidence about the motive for the attack was given by Mst. Fateh Khatun (P. W. 2) and some other witnesses.

4. When questioned at the conclusion of the prosecution evidence to explain the circumstances appearing in that evidence against them, the appellants denied their guilt and ascribed the case against them to enmity. Ahmad Khan son of Sultan Mahmud, who when medically examined by Dr. Muhammad Aslam Qureshi, the then Medical Officer, Civil Hospital, Nowshera, on the 6th of December 1957, at 12‑15 p.m., was found to have five abrasions and three scabbed abrasions on his person which were stated by the doctor to have been caused more than three days but less than one week before the examination, when questioned to explain the presence of injuries on his person, stated that he had received them in the course of his ordinary vocation. No witness was produced in defence.

5. When the evidence at the trial finished the learned trial Judge took the opinion of the four assessors, who were assisting, him in the trial, as he was bound to do under section 309 of the Code of Criminal Procedure. The questions that were asked do not appear on the record, but the answer of each of the assessors was that only three of the appellants, namely, Ahmad Khan son of Sultan Mahmud, his brother Muzaffar Khan, and Muhammad Afzal had participated in the murder of Sher Khan. Either the learned trial Judge did not ask the assessors their opinion with regard to the offence under section 148 of the Pakistan Penal Code, which was one of the offences for which the appellants were tried or the assessors did not express any specific opinion on that charge, but the record shows that the assessors had not said anything about that charge. However, as already indicated, the learned trial Judge convicted all the seven appellants under sections 148 and 302/ 149 of the Pakistan Penal Code.

6. The first point raised by Mr. M. Saleem, learned counsel for the appellants, was that the trial was vitiated by reason of the omission of the learned trial Judge to ask the assessors their opinion with regard to the offence under section 148 of the Pakistan Penal Code. He contended that this omission could not be overlooked because the opinion of the assessors with regard to the evidence relating to the charge under section 148 of the Pakistan Penal Code would have reflected on the evidence pertain ing to the other charge, and to support his contention he relied on a recent decision of their Lordships of the Supreme Court in Muhammad Sajjad and another v. The State (P L D 1961 S C (Pak.) 13). His Lordship the Chief Justice of Pakistan, with whom his learned colleagues had agreed, had, in the penultimate paragraph of his judgment, with regard, to the omission to take the opinion of the assessors on one of the charges which were considered at the trial, expressed him self in the following words :‑ "The judgments cited upon section 309, Criminal Procedure Code, were delivered in relation to the particular facts of each case, and the only principle which we think can safely be extracted is that non‑compliance with the relevant provision in section 309, although, it might have the full aspect of illegality if no opinions at all were obtained from the assessors on any of the charges, yet if the non‑compliance is in respect only of a minor part of the charge as we find it to be here, the contraven tion would amount ordinarily to an irregularity, and as to an irregularity of procedure, the principle is clear, namely, that it does not vitiate a conviction unless there has been consequential prejudice to the person convicted. In the present case, we find that the failure of compliance is directly connected with the formention of a correct opinion as to the credibility of the evidence given by the two women witnesses and upon the answer to that question, the decision in the whole case must naturally turn. Therefore, the prejudice from the failure to question the assessors with respect to the charge under section 323/34, P. P. C. is perfectly plain." This decision of their Lordships was given in an appeal against the decision of a Bench of this Court, of which I was a member, in Muhammad Sajjad and two others v. The State (P L D 1960 Lah. 520), The leading judgment was recorded by Justice Sheikh Muhammad Shafi and I made but a brief contribution with regard to section 309 of the Code of Criminal Procedure. I had, in the second paragraph of my three‑paragraph note, expressed myself as under :‑ "I do not consider it necessary for the purposes of the present case to determine what the effect of non‑compliance with section 309 of the Code of Criminal Procedure would be if the trial has resulted in conviction for more than one offence though the assessors were questioned with regard to only some of them because in the present case no conviction was recorded with regard to the offence about which the opinion of the assessors was not taken, but I agree with my learned brother that in the present case the omission to question the assessors with regard to the offence for which no conviction was recorded should be ignored as section 537 of the Code of Criminal Procedure can cure it". The facts of the case relied upon were that though an offence under section 323/34, P. P. C. was one of the offences for which the accused in that case were tried, the assessors, though asked their opinion with regard to the offence under section 302/34 of the Pakistan Penal Code, had not been questioned with regard to the offence under section 323/34 of the Pakistan Penal Code alleged to have been committed by causing injuries to two of the witnesses who appeared at the trial to support the prosecution case and no conviction for, that minor offence had been recorded. It was in these circumstances that Sheikh Muhammad Shafi, J. and I had held that the omission to question the assessors, though it con travened section 309 of the Code of Criminal Procedure, was curable under section 537 of that Code.

7. It was remarked by their Lordships of the Supreme Court that the opinion expressed by the Judges of the High Court about, assessors in the judgment under appeal were distinctly unpleasant and would have been much better avoided. The reference here evidently was to the remarks of Sheikh Muhammad Shafi, J. which appear in P L D 1960 Lah.

541. I had agreed with my learned brother only with regard to the points on which I had given my views in my brief note and had said nothing with regard to the wisdom or otherwise of keeping assessors as a part of the Court when the opinion could be entirely ignored by the Judge to assist whom they had, under the Code of Criminal Procedure, to be called to participate in the proceedings. It is possible that while expressing his views about the assessors being unnecessary Sheikh Muhammad Shafi, J. had been influenced by the facts that in some decided cases omission to take opinion of assessors had been considered immaterial but there can be no manner of doubt that as long as the institution of the assessors exists and the law enjoins that their opinion has to be taken it is not open to any Court to say that omission to the opinion of the assessors could in all cases be overlooked on the ground that even if it were taken the Judge, who had to pass judgment, was not bound to follow it. It is, however, clear, and is, because of the decision of their Lordship of the Supreme Court in Muhammad Sajjad and another v. The State, no longer open to question in this country that section 537 of the Code of Criminal Procedure is applicable to an omission to take opinion of assessors with regard to one of the charges. It follows from the penultimate paragraph of the judgment of their Lordships of the Supreme Court that it is not in all cases of non‑compliance with section 309 of the Code of Criminal Procedure that the trial can be held to have been vitiated. It is true that in that case their Lordships of the Supreme Court considered that the omission could be overlooked, but they made it clear that it was only in exceptional circumstances that omission to question assessors with regard to an offence for which the accused person had been tried would not be curable under section 537 of the Code of Criminal Procedure.

8. The question that requires determination is whether Mr. M. Sleem, learned counsel for the appellants, was right in saying that the present is a case of the type which would be covered by the decision of their Lordships of the Supreme Court mentioned in the last paragraph and a partial re‑trial has to be ordered irrespective of the question whether or not any prejudice to the accused had occurred by reason of the omission of the learned trial Judge to take the opinion of the assessors with regard to the charge under section 148 of the Pakistan Penal Code. The words used by their Lordships of the Supreme Court, which had been reproduced in the last paragraph but one, make it clear that it is not in all cases that omission to take the opinion of the assessors with regard to some of the offences for which the accused had been tried will make an order regard ing retrial necessary, and in the majority of cases the omission can be overlooked. The facts of the case dealt with by their Lord ships were rather peculiar if not unique and that case cannot be invoked by the accused in all cases of omission to ask the assessors their opinion under section 309 of the Code of Criminal Procedure with regard to some of the charges to which the trial related. I am clear in my mind that the present is not a case of the type in which omission to comply with the provision of section 309 of the Code of Criminal Procedure with regard to one of the offences would nullify the proceedings of the learned trial Judge, It has to be kept in view that with regard to the main charge. that is the one under section 302/149 of the Pakistan Penal Code, the assessors had expressed the opinion that only three of the seven accused had taken part in the assault on the deceased. This amounted to an opinion that there was not unlawful assembly and consequently no rioting, and it is too much to expect that the assessors, if questioned about the application of section 148 of the Pakistan Penal Code, which is applicable only to that member of an unlawful assembly who is guilty of rioting being armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death, would have given an opinion which could be more favourable to the accused as far as the application of section 148 of the Pakistan Penal Code was concerned. The assessors having expressed the opinion that only three persons had taken part in the offence of murder and, therefore, section 149 of the Pakistan Penal Code was not applicable, their opinion about the offence under section 148 of the Pakistan Penal Code could not have been against the accused unless the assessors were bent upon con tradicting themselves. If a question about the, application of section 148 of the Pakistan Penal Code had in the circumstances of the present case elicited from an assessor the reply that in view of his opinion with regard to the offence under section 302/149 of the Pakistan Penal Code the question was meaningless, that assessor could not have been reasonably accused of insolence. I would, therefore, hold that the omission of the learned trial Judge to take the opinion of the assessors with regard to the offence under section 148 of the Pakistan Penal Code was not an irregularity and if it was one it stands cured by virtue of the provision of section 537 of the Code of Criminal Procedure because no prejudice to the accused persons was even alleged to have resulted from the omission.

9. I will now take up the evidence on the record and consider whether the judgment of the learned trial Judge can be upheld. As already indicated one of the pieces of evidence on which the prosecution and the learned trial Judge relied was the dying declaration of the deceased recorded by Abdul Bashir Ahmad, Head Constable (P. W. 12). The contention of learned counsel for the appellants was that the dying declaration was inadmissible in evidence. He pointed out that Dr. Muhammad Aslam Qureshi, the first witness for the prosecution at the trial, who had certified that at the time of the recording of the dying declaration Sher Khan was in his senses, had deposed that Sher Khan had given answers to questions put to him by the Head Constable, while the police officer who prepared the record did not accept this suggestion. I accept the contention of learned counsel for the appellants that because the doctor had no reason to tell a lie on the point and the police officer would not be likely to admit his own lapse, the statement of the doctor should be accepted, and would proceed to examine the contention that as the record of the dying declaration did not indicate the questions that were asked from the person who made the state ment sought to be used as substantive evidence by reason of the fact that the statement was inadmissible in evidence. In this contention reliance was placed on Bagina v. Mitchell (17 Cox. 503), The King v. Smith (17 T L R 522) and Cyril Waugh v. The King (1950AC203:PLD1949PC299). It is true that some observations made in the case of Bagina v. Mitchell are open to the construction that in such circumstances a dying declaration was inadmissible in evidence but the question is whether in this country the law on the point is the same as in England. The law ill force in this country does not require that the questions that an officer recording a dying declaration asked should be noted down before the answer is recorded, and though I do not deny that it would be better that the questions form part of the record of the dying declaration, it cannot be laid down as a principle of law that if that is not done, the record of the dying declaration becomes inadmissible in evidence. Decisions of Courts of other countries can have a persuasive value only if they have dealt with a provision of law which is the same as the one to be interpreted or very similar to it which is not the case in the present instance. The point to determine is whether the statement under consideration is admissible in evidence as a dying declaration and, if so, whether the record relating to it should be accepted as correct. There is no doubt that the statement of Sher Khan was admissible in evidence as a dying declaration and as there is nothing in the evidence to show that the record prepared by Abdul Bashir Ahmad (P. W. 12) did not contain a faithful reproduction of what was stated by Sher Khan one has to proceed on the assumption that the answers were correctly recorded. I am clear in my mind that the fact that the best method of recording that state ment was not adopted cannot make the dying declaration either inadmissible in evidence or irrelevant, though the omission to indicate what questions were asked may affect the weight attach able to the record of the dying declaration.

10. Before dealing with the other questions, I will dispose of another argument of learned counsel for the appellants with regard to the dying declaration. Citing from some books, learned counsel contended that dying declarations of persons residing in this country were not reliable. If the intention of Judges and authors who have made remarks. about dying declarations was that they should have general application, I venture to point out that they were indulging in a generalisation about the weight that should be attached to a particular type of evidence which they were not competent to do. What weight should be attached to a particular piece of evidence must depend on the circumstances of each case. If a highly truthful man were to make a dying declaration, could any one say that because the statement was probably made when death was staring him in the face it should be presumed that he had dis carded his habit of telling the truth ? No hard and fast rule can be laid down about the weight that should be attached to a dying declaration and those who attempt laying down a rule cannot but be held to have transgressed the limits of their authority. Whether or not the dying declaration in the present case should be acted upon will be considered in the proper place and all that I need say here is that the statement cannot be held to be false simply because it was made by a mane who lived in a village and had had no education.

11. The prosecution produced three persons as eyewit nesses of the occurrence. Of these three, Mst. Sahib Khatun (P. W. 4) and Mst. Nawab Zadi (P. W. 5) are real sisters of Sher Khan deceased. Hassan Din (P. W. 3) was not relied upon by the learned trial Judge mainly on the ground that his name did not occur in the dying declaration as one of witnesses. The opinion of the learned trial Judge with regard to Hasan Din does not appear to be warranted by the material on the record, but I will proceed on the assumption that Hasan Din's state ment was rightly rejected by the learned trial Judge. Learned counsel for the appellants contended that as the two persons on whom the learned trial Judge had relied as eye‑witnesses were highly interested in the deceased, their depositions should not have been held sufficient for the conviction of the appellants. The fact that a witness is related to the victim is not enough for brushing aside his evidence as worthless, and it must neces sarily depend on the circumstances of each case whether the relationship of the victim of a crime to a witness should affect his credit. In the present case, there is no reason to doubt the claim of the two sisters of the deceased that they had seen the assault on their brother. One reason urged by learned counsel for the appellant for considering the two witnesses unreliable was that neither of them nor any one to whom they may have given information went to the police station to make a report. In this connection it cannot be overlooked that the injured man was being carried to the hospital which is near the police station but at a distance of six miles from the scene of the occurrence, and it could not have been felt necessary to send a special messenger to the police station to make a report, because any one of the persons who accompanied the injured man could make one. When the injured man and those who carried him there reached the hospital, information was at once sent to the police station and, therefore, it was not necessary for any one to go to the police station as someone from the police station was expected to be soon at the hospital to take down the statement of the injured person.

12. Corroboration of the statement of the two eye‑witnesses was sought by the learned counsel for the State from the presence of injuries on the person of Ahmad Khan son of Sultan Mahmud, and from the dying declaration of the victim, Sher Khan. As mentioned already, Ahmad Khan son of Sultan Mahmud said about his injuries that they had been received in his agricultural pursuits. The number of the injuries is large and his explanation does not appear to be correct but as it cannot be definitely found to be untrue and there is also the fact that none of the prosecution witnesses claimed that any injury was given to Ahmad Khan son of Sultan Mahmud appellant, the presence of the injuries on his person cannot be used against him. As regards the dying declaration of Sher Khan, I find no reason to doubt its correctness and would hold that it furnishes valuable corroboration to the depositions of his two sisters who appeared as eye‑witnesses. In this connection, I might also mention the medical evidence. The deceased received more than two dozen injuries of which some were incised wounds and the others contused wounds or abrasions. The large number of injuries would show that the number of assailants was large and the nature of injuries would show that two kinds of weapons were used.

13. Learned counsel for the appellants, argued that as Jafar husband of Mst. Fateh Khatun, had divorced her on taking money from the deceased, the appellants could have on ground for attacking the deceased. It is to be remembered that Mst. Fateh Khatoon was a relative by blood of some of the appellants and in some parts of the society in this country male blood relations of a woman are more sensitive in such matters than her husband. It was also contended that at least with regard to two appellants, namely Muhammad Aslam and his brother Muhammad Afzal, it would not be safe to accept the depositions of the two sisters of the deceased or his dying declaration. This argument was based on the fact that from the evidence on the record it appears that Muhammad Aslam appellant had not only apprehended the deceased with Mst. Fateh Khatun (P. W. 2) but had taken him to be police station also and had initiated proceedings under section 107 of the Code of Criminal Procedure against him. Though I do not think that any ground exists for making one believe that Muhammad Aslam and his brother Muhammad Afzal appellants had, been falsely implicated in this case, I would, in order that even the remotest risk of an innocent man being con victed be excluded, give the benefit of doubt to these two appellants.

14. The last contention of learned counsel for the appel lants was that in any case the offence did not amount to murder. He urged that as none of the injuries was on a vital part of the body of the deceased it could not be, said that the common object of the members of the unlawful assembly was to cause the death of the victim. The injuries of the deceased, which were deposed to by Dr. Muhammad Aslam Qureshi who was the first witness for the prosecution at the trial, were twenty eight in number of which eleven were caused with some sharp edged weapon. Six of the twenty‑eight injuries were grievous in character and of these six, three were caused with a sharp‑edged weapon and the other three with a blunt weapon. One of the grievous injuries caused with a sharp‑edged weapon was on the right leg, the second on the left leg, and the third on the left hand. Of the three grievous injuries caused with a blunt weapon, one had caused the fracture of the Khucle of the middle finger of the left hand, one had fractured the thumb of the left hand and the third had fractured the left forearm. The doctor gave it as his opinion that death resulted from external haemorrhage from the three grievous injuries caused with sharp‑edged weapon and shock which was aggravated on account of the other injuries. It cannot be laid down as an invariable rule that if vital part of the body of the victim are spared the offence can in no case amount to murder if death ensues because though the vital parts of the body of a person may be spared he may be given an extremely large number of injuries on the other parts of the body and killed by that means. Each case will depend on its circumstances; though infliction of serious injuries on vital parts is almost invariably proof ‑of an intention to cause death. I have considered the matter and have arrived at the con clusion that the present is not one of those cases which will attract the definition of murder in spite of the fact that vital parts of the body of the victim were scrupulously spared from injuries. There can, however, be no doubt that the common object of the members of the unlawful assembly was to cause grievous hurt with sharp‑edged weapons, an offence punishable under section 326/149 of the Pakistan Penal Code. Consequently I would, while accepting the appeal of Muhammad Afzal and Muhammad Aslam in its entirety, alter the conviction of the other five appellants to section 326/149 from section 302/149 of the Pakistan Penal Code and would direct that each of them shall suffer rigorous imprisonment for ten years for that offence. The conviction under section 148 of the Pakistan Penal Code will stand as well as the sentence, imposed by the learned trial Judge for this offence and the two sentences shall run concurrently. A. R. KHAN, J.‑I agree. K. B. A. Appeal partly accepted.