P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J.‑--This judgment will dispose of two criminal matters, namely Criminal Appeal No. 3 of 1958 by Moonda, Siraj, Lal and Sardara, son of Fazal Elahi, and Represented Petition for Special Leave to Appeal No. 26 of 1958 by Dargahi, Muhammad, Raja, Niaz Ali, son of Haku, Allah Dad and Sardara Mirasi. The appellants as well as the petitioners were jointly tried along with five other persons named Mota, Chiragh, Mian Khan, Sardara son of Wali and Niaz Ali son of Allah Ditta on charges of rioting and of murder and hurt caused by them as members of an unlawful assembly. One Ibrahim was said to have been a member of this unlawful assembly, but had died before the case was brought to trial. The accused persons are connected among themselves by ties of relationship or faction. The motive for the formation of the unlawful assembly was to take revenge upon certain persons namely, Haider, Ali and Wali who had shortly before been acquitted of the offence of causing grievous hurt to the petitioner Raja. The arms carried were a rifle, seven spears and eight dangs. The attack was alleged to have been made in broad daylight on the 15th April 1956, when a crop was being cut in the field of the witness Jalal. The rifle was fired to give the signal for the attack, and thereafter the intended victims Haider, Ali and Wall were chased. Haider and Ali were brought down by different groups from among the assailants, but Wali escaped. A third man, however, by the name of Nadir was simi larly brought down and he as well as Haider and Ali died on the spot. The owner of the field Jalal was severely injured, but sur vived. Evidence was given in the case by Jalal, Niaz All and Rahmat as eye‑witnesses. Three other eye‑witnesses, named Haku, Gehna and the aforesaid Wali were not examined in the Commit ting Court, and that appears to have been held a sufficient reason for not examining them at the trial. The eye‑witnesses implicated all the accused persons, giving details. Since we propose to make an order that the case be retried from a certain point, it is desirable that we should say nothing as to the merits of the depositions of these witnesses. In the course of the examination of the investigating officer S. I. Mehr Allah Bakhsh, a question of the most unusual character was put to him by the Court, to which his answer is reproduced below :‑

"By Court‑If I am called upon to swear about the participation in this occurrence of the following nine persons, I cannot take the oath, as I am not definite about their participation, as a 'result of my investigation‑-- (1) Chiragh son of Sharfu. (2) Siraj son of Sharfu. (3) Mota son of Bahadur. (4) Moonda son of Shah Muhammad, (5) Mian Khan son of Rat mat. (6) Lal son of Fazal Elahi. (7) Sardara son of Fazal Elahi. (8) Sardara son of Wali. (9) Niaz Ali son of Allah Ditta".. On the strength of this opinion, the trial Judge found it possible to acquit the nine persons named above on the basis of an argu ment which appears clearly from the passage quoted below from his judgment:‑-- "Mehar Allah Bakhsh S. H. O., P. W. 12, the Investigating Officer, is not definite about the participation of Chiragh and Siraj sons of Sharfu, Mota son of Bahadur, Moonda son of Shah Muhammad, Mian Khan son of Rahmat, Lai son of Fazal Elahi and his brother Sardara, Sardara son of Wali and Niaz Ali son of Allah Ditta, nine persons out of 15 in dock. Jalal P. W. who has put in 30 years of police service, in his statement before the police, stated that he could not identify Mota, Chiragh, Niaz, Mian Khan, Sardara son of Walia, and Sardara Mirasi. Besides this, two brothers Lala and Sardara sons of Fazal Elahi, are said to be leader type of people and it is believed that they were the persons, who brought about this occurrence, by instigating other accused persons. It is custo mary in this Elaqa to involve the most influential people and ascribe to them principal part as has been done in this case. Moreover, the assailants in this case are said to have been sixteen persons. Ibrahim deceased was declared innocent by the Super vising Officer, a police Inspector who went for investigations in this case. Over and above that, no allocation of blow was specified in the F. I. R. A perusal of the evidence of spot witnesses now affords an indication that a division of labour was subsequently made to the effect that Allah Dad accused first of all overtook Haider, that Niaz Ali son of Allah Ditta over took Ali and Mota and Lai overtook Nadir. My own view of the case is that these are all improvements subsequently made during the commitment proceedings or at the trial. The allo cation of blows being artificial, no judicial finding about the specification of particulars can possibly be given. To my mind participation in the occurrence of nine persons mentioned above by. the S. H. O. is doubtful. When the Police Officer, who .is the S. H. O. of the Thana concerned and who conducted inves tigations at the spot is not definite about the participation of these nine persons in this occurrence, it is impossible for a Court of law to register their convictions. In the circumstances, I find that case against Chiragh and Siraj sons of Sharfu, Mota son of Bahadur, Moonda son of Shah Muhammad, Mian Khan son of Rahmat, Lai and Sardara sons of Fazal Elahi, Sardara son of Wali, and Niaz Ali son of Allah Ditta, is doubtful. Mr. Asad Ali Rizvi, Additional Public Prosecutor, while finally putting the case before the Court and the assessors, did not claim the conviction of these accused persons. The case was tried with the assistance of four Assessors. They think other wise. Disagreeing with them, I give benefit of doubt to these pine persons and I acquit them". As regards the remaining six persons, the view formed by the trial Judge is expressed in the following words :‑

"Evidence in this case so far as to above six accused persons are concerned, brings me to a judicial certainty that they had, in fact participated in this occurrence. All the assessors unani mously declare them guilty on all the charges. Agreeing with their unanimous opinion, I hold that Raja and Niaz Ali sons of Haku, Allah Dad son of Rakha, Dargahi son of Karam Elahi, Muhammad son of Bahadur and Sardara Mirasi participated in this occurrence". He accordingly convicted these six persons and sentenced them to death on each of three counts under section 302/149, Pakistan Penal Code to which were added further convictions and sentences under sections 148 and 325/149, Pakistan Penal Code. These six convicted persons filed an appeal in the High Court, where also the Provincial Government moved an appeal against the acquittal, not of all the nine persons whom the Sessions Judge had acquitted, but only of four, namely, Moonda, Siraj, Lal and Sardara son of Fazal Elahi. The learned Judges in the High Court dismissed the appeal of the convicted accused persons and accepting the appeal of the Provincial Government reversed the acquittal of Moonda, Siraj, Lal and Sardara son of Fazal Elahi, and imposed upon them sentences of death under sections 302/ 149 on three counts ; no separate sentences were awarded under sections 148 and 325/149, Pakistan Penal Code. The result there fore is that out of the sixteen persons who were reported against in the first instance, one died before he could be brought to trial, and of the remaining fifteen, five have been acquitted, while the remain ing ten are now under sentence of death. Moonda, Siraj, Lai and Sardara son of Fazal Elahi have moved an appeal as of right in this Court under Article 159 of the Constitution. The remaining six accused persons have moved a petition for special leave to appeal against the order dismissing their appeal, and confirming their convictions by the trial Judge. It will be convenient first to deal with the appeal under Article 159, and we propose to make an order for retrial in this case on the short ground that the appellants have been prejudiced in regard to an essential part of the procedure of the trial, namely, the opportunity and the right to produce defence evidence, by reason of the implications arising out of the answers given by the investigating officer to a question put by the Court, which answer has been reproduced above, and has an obvious and direct bearing upon the question of the guilt or innocence of these appellants. The implications of that answer appear with the utmost plainness from the conclusions recorded by the trial Judge in regard to the guilt of these persons, which conclusions have also been reproduced above in full. It was contended before us on behalf of these appellants that the answer of the investigating officer was construed by them as an implied admission that the evidence on record was insufficient to sustain a finding of guilty as against them, and as this took place before they were question ed generally on the case and also whether they would produce defence evidence, it was thought sufficient that they should merely deny the offence, and decline to produce defence evidence. When' later, the High Court thought fit to reverse the order of acquittal which had followed as a more or less natural consequence of the investigating officer's answer mentioned above, this result was e achieved without these appellants having had the opportunity which the law requires to state their defence in full, and to exercise the option whether or not they would produce evidence in support. The contention appears to us to be unanswerable. The action of the trial Judge in obtaining from the investigating officer a state ment of his own belief as to the guilt or innocence of a number of persons accused in the case cannot be condemned too strongly. The function of forming an opinion as to the guilt or innocence of persons accused in the case is confined to the trial Judge, and may not be shared with or delegated to any other person, least of all to the person who was responsible for the levelling of the accusations against the accused persons. It may not be rested upon the opinion of any other person. Although in coming to his conclusion the trial Judge is required to consult the assessors who sit with him at the trial, yet their opinions do not have a for mative effect upon the judgment he delivers. (Section 309, Cri minal Procedure Code). That judgment must be formed by himself alone, and must be based exclusively upon legal evidence, which does not embrace such an opinion as was received in this case. We cannot examine the extent of the mischief and confusion caused to the dispensation of justice as a result of this statement having been received in evidence without referring to the structure of the prosecution case and, consequently, the evidence upon which it is based. We shall therefore refrain from entering into this ques tion in detail. Suffice it to say that in our opinion the question put by the Court was entirely irrelevant, and that it should be deemed never to have been asked or answered. Further, the conduct of the Public Prosecutor appearing in the case, in basing upon this answer, a declaration that he did not demand the conviction of the nine named persons, throws a disconcerting light upon the manner in which cases of the highest importance such as this are tried by the senior Courts in outlying districts. The only reliev ing feature of the trial from this point of view appears to be that the assessors in the case refused to allow their opinions to be ruled by those which were guiding the conduct of the trial Judge, the investigating officer, and the Public Prosecutor. All four of the assessors expressed the clear opinion that all the fifteen accus ed persons were proved to have committed the offences charged. We wish to make it clear that we are not attaching to that opinion any more importance than is required to be given to it by the law. The point which we are stressing is that the assessors did not allow their own opinion to be overborne by those of the leading personalities connected with the trial, to which effect was given in the case in a manner which clearly violates all established canons of law in relation to the relevancy of opinions in trials of this kind, and the exclusive duty of the Court to form in an opinion as to the guilt or innocence of the persons who are being trpiedi. It is quite clear that from the point of the trial at which the investigating officer was allowed to express his opinion directly favouring the acquittal of nine of the accused persons, those nine persons did not stand in peril of their lives as they had done up to that point, and their attitude in regard to their own defence necessarily was not that which is shown by accused persons against whom the prosecution single‑mindedly proceeds to lead evidence calculated to establish the truth of the accusation against them. Moreover, the opinion of the investigating officer regarding the reliability of the case against nine of the accused persons is liable to be excised from the record as being entirely irrelevant, and if that is done the affected persons among the accused, namely, the four appellants before us, are entitled to a fresh opportunity to state their defence, and to declare whether or not they will produce evidence in support, and in the appeal we propose to make an order accordingly. The position as respects the accused persons who were convicted at the trial is not precisely the same as that of the appel lants under Article

159. They need have been under no illusion regarding the strength of the prosecution case against them, and the determination of the prosecuting authorities to pursue that case under proper forms of procedure. When therefore, they made their general statements in defence, and declined to produce defence evidence, it might be thought that they had enjoyed every opportunity which the law requires to state and establish their defence. It is pointed out, however, that since all the accused persons were alleged to have formed an unlawful assembly with a common intention, the case against all of them is a single case, and in the absence of any distinguishing circumstances, that case should stand or fall against each of the accused persons equally. In this connection, reference was made repeatedly to the face that the State had not proceeded against all the nine persons acquitted at the trial, but only against four of them and the grounds of this selection were by no means clear on the record. Such a treatment might appear to violate the fundamental right of equality before the law. Here again, although the point is one of substantial importance it is most desirable that we should reserves our opinion upon it, since such an opinion cannot be formed otherwise than upon an appreciation of the evidence, a process which in view of the order which we are proposing to make it is most desirable that we should avoid. But we consider that the force of the argument cannot be denied that there was a single case presented against all the 15 persons who were brought to trial, and that any aspect of the evidence whether for the prosecution or for the defence which might go in favoure of one or more of the accused persons: would necessarily have a bearing upon the question of the guilt or innocence of each of the other accused persons. Moreover, it was pointed out after reference to the original record that in the matter of giving the accused persons an opportunity to produce defence evidence, there had been a violation of the procedure required by the Com mitting Court. In that Court, some of the accused persons had sought permission to produce defence evidence, under section 208 of the Criminal Procedure Code, which requires the Magistrate to take "all such evidence as may e produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate". Five witnesses had been summoned for the defence under power given to the Magistrate by subsection (3) of section 208:

Thereafter, on the 17th September 1956, the Magis trate framed a charge, and immediately thereafter committed the accused persons for trial directing them at the same time to put in a list of their defence witnesses. Our attention has been drawn to the provisions of sections 210, 211, 212 and 213 of the Criminal Procedure Code, and it is urged that since in the result an order of commitment was made by the Magistrate his duty after record ing evidence under section 208 was to frame a charge and to read it and explain it to the accused as required ‑ by section 210, after which 'it was his clear duty under section 211 to require the accused "at once to give orally or in writing a list of the persons (if, any) whom he wishes to be summoned to give evidence on his trial". Subsection (2) of section 211 gives the Magistrate discretion to allow the accused to put in a further list of witnesses at any later time, but this only serves to emphasize the mandatory nature of the duty imposed by subsection (1), namely, to require the accused at once, after the charge has been framed, to give in a list of witnesses. That this is a substantial duty, and corresponds to a substantial right is evident from ' section 212 which empowers the Magistrate in his discretion to summon and examine any witness named in 'any list given by the accused under section

211. Evidence recorded under section 212 may induce the Magistrate to cancel the charge and discharge the accused as is expressly laid down in subsection (2) of section

213. The learned Advocate‑General attempted to argue that such right of the accused as the Criminal Procedure Code allows in the relevant respect was satisfied by the summoning and examining of five witnesses for the defence before the framing of the charge, and that as to the actual right of producing evidence at the trial, that was allowed to the accused persons by the trial Judge, and was declined. In our opinion, the production and examination of witnesses under section 208 does not by any means constitute com pliance with the duty imposed upon the Committing Magistrate by section 211 of the Code which duty must be interpreted 'as a concomitant of a right vested in the accused to obtain cancellation of a charge framed by a Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused persons under section 212 of the Code. For both these reasons, we consider that the petitioners Dargahi and five others are entitled to the same opportunity as we are allowing to the appellants Moonda and three others, that is to say, a right to be questioned as to their defence generally, and an opportunity to produce defence evidence if they are so advised. We accordingly allow the appeal of Moonda, Siraj, Lal and Sardara son of Fazal Elahi, and set aside the order of conviction made against them by the High Court. We also allow the petition; of Dargahi, Muhammad, Raja, Niaz Ali son of Haku, Allah Dads and Sardara Mirasi and while granting them leave to appeal, we set aside their convictions as well. In both cases, we make a direction as follows, that is to say, the case shall be remitted to a Sessions Court to be selected by the High Court and shall be retried from the point of conclusion of the prosecution evidence, as against the ten appellants before this Court, who shall be re‑examined by the trial Court under section 289 of the Criminal Procedure. Code, and the trial shall proceed from that point accord ing to law to its conclusion in a judgment of conviction or acquittal, as the case may be. In particular, and to avoid any doubt we direct that each of the ten accused persons affected by this order shall be expressly allowed an opportunity to state whether or not he will adduce evidence in his defence and shall be given such reasonable opportunity as the law requires to produce his evidence, if any. Orders regarding the custody of these appel lants will be made by the High Court in the first instance, and thereafter by the Sessions Court when it is seized of the case. A. H. Re‑trial ordered.