P L D 1963 Dacca 119 (PLP)

"The right given to an accused person by this section is a very valuable one and often provides important material for` cross‑examination of the prosecution witnesses. However slender the material for cross‑examination may seem to be; it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence; and in the present case it has to be remembered that the accused's contention was that the prosecution witnesses were false witnesses." In view of the defence theory that the prosecution witnesses were false witnesses acting under conspiracy, it was all the more necessary to give the facilities provided in this section to the accused. The decision of the Privy Council as referred to above, has been quoted with approval by our Supreme Court in the case of Fafz Ahmad v. The State (P L D 1960 S C 8), where it was indicated that the right course for the learned Judges would have been either to order a retrial if they found that the irregularity had occasioned a failure of justice or to recall the approver, supply a copy of his statement to the defence counsel and direct him to cross- examine the approver". In that case the Supreme Court found it possible to exclude the evidence of the approver concerned and to dispose of the case on other evidence on record; but the principle laid down, as indicated above, in our view stands well applicable to the facts of the present case. We, for our satisfaction, allowed the learned counsel for the appellant to make reference to the relevant statements of the witnesses made before the police and make his comments accordingly; but he pointed out, and the learned Deputy Legal Remembrancer could not differ from him, that such a course at this stage adopted, in regard to most of the witnesses, would be most disadvantageous and undesirable because in that case his only submission would be that all such witnesses who made statements before the police and also appeared before the Court of Sessions for examination and cross‑examination should be excluded and in that case there would practically be nothing upon which the case could be fairly disposed of. Considering all these difficulties we find it impossible to dispose of the case after excluding the evidence of so many witnesses such as P. Ws. 1, 4, 5, 8, 9, 10 and 11 or treating the relevant points unexplained in view of such irregularities. We have, therefore, been constrained to take the view that the prejudice as caused in this manner is a serious one and there has been a failure of justice in this regard so far as the accused is concerned.

13. With regard to the question as to whether any prejudice can be said to have been caused for not bringing upon on the record of the Court of Sessions the depositions, or parts thereof, of some of the witnesses as given before the committing Magis trate, it appears that some petitions were filed on behalf of the accused asking the Court to admit the relevant depositions or parts thereof for use in terms of section 145 of the Evidence Act. There is, however, indication in some of the petitions dated 5‑4‑61 and 19‑7‑61 that a kind of confused prayer was made as to whether such' depositions should be taken in or brought up on the record as under section 288 of the Code of Criminal Procedure. In the petition dated 5‑4‑61 it has been stated :‑ "That during cross‑examination P. W. 8 Syed Ali the provisions of section 145 of Evidence Act were complied with that the deposition of the witness before the committing Magistrate is being contradictory of his evidence at the trial." It has next been stated :‑ "That it is necessary that the evidence given by the witness before committing Magistrate be admitted under section 288 Cr. P. C." The prayer was in the following terms: --‑ "It is therefore humbly prayed that your honour would be pleased to admit the evidence as prayed for in the interest of justice ............... The learned Sessions Judge has endorsed on the body of this petition an order to this effect :‑ "Depositions before the committing Magistrate, will be taken into account only under section 288 Cr. P. C. wherever it is applicable." It is difficult for us to follow how the petition was intended to be disposed of by the learned Sessions Judge. It has been specifically stated in the petition, and it is not challenged, that while cross‑examining P. W. 8 Syed Ali provisions of section 145 of the Evidence Act were complied with by reference to the deposition of the same witness before the committing Magistrate. It was, therefore, the clear duty of the learned Sessions Judge to mark out the relevant portions and bring them on record of the Court of Sessions for their legal use.

14. The learned Deputy Legal Remembrancer has, however, contended that in view of the statement in paragraph 2 of the petition stating that it was necessary that the evidence should be admitted under section 288 of the Code of Criminal Procedure, the learned Sessions Judge could not make any order unless in regard to each of such deposition formalities as under section 145 of the Evidence Act were complied with. In other words, the contention of the learned Deputy Legal Remembrancer was that in order to get the benefit of section 288 of the Code of Criminal Procedure and to have the depositions before the committing Court included as part of the records of the Court of Sessions, the discretion of the learned Sessions Judge could not be regarded as unfettered inasmuch as the admission of such record under section 288 of the Code of Criminal Procedure was dependent upon compliance with the provisions of section 145 of the Evidence Act. His further contention was that there being nothing to show that formal compliance with the provision of section 145 of the Evidence Act was made in regard to all the depositions asked for, the learned Sessions Judge was in no way wrong in failing to bring up such records into those of the Court of Sessions.

15. The Learned Deputy Legal Remembrancer in this connection has relied upon a decision of the Lahore High Court in the case of Fateh Beg and another v. Crown. (P L D 1952 Lah. 275). The learned Deputy Legal Remembrancer, however, does not contend that if the depositions before the committing Magistrate were other wise admissible, they could be kept outside the records of the Court of Sessions. In view of the decision in the case of The Emperor v. Molla Khan Kabulf alias Hamidulla and others (37 C W N 1061); we are of the opinion that the deposition, if otherwise admissible under section 288 of the Code of Criminal Procedure, ought K to have formed part of the record. The question, however, is, as raised by the learned Deputy Legal Remembrancer, as to whether in the circumstances of the case it could be said that without formal compliance with section 145 of the Evidence Act, these depositions could at all be admitted under section 288 of the Code of Criminal Procedure. In the case of Fateh Beg and another v. Crown, this question came up for consideration, and it was observed that there were divergent views in respect of the same but mainly relying upon a decision of the Supreme Court of India in the case of Tara Singh v. The State (A I R 1951 S C 441), it was held in that case that as the procedure laid down in section 145 of the Evidence Act was not followed by the learned Sessions Judge, the previous depositions of the witnesses should not have been treated as evidence in that case. It was also added that it was desirable that the provisions of section 145 of the Evidence Act should have been followed and that such a course should always be adopted in fairness to the accused as well as to the witness concerned.

16. In another decision of the same Court in the case of Mohammed Sarwar v. Emperor (A I R 1942 Lah. 215), a contrary view was taken but the learned Judges in the case reported in P L D 1952 Lah. 275 differed from that view and held as stated above. In the case of Mohammed Sarwar v. Emperor, it was held that under section 288 of the Code of Criminal Procedure the Sessions Judge had an absolute discretion to transfer statement made before the committing Magistrate to his own record and the statement so transferred was evidence in the case for all purposes without limitation. The case as reported in A I R 1951 S C 441, did not come into existence while this case was considered. On a further scrutiny it, however, appears that the Supreme Court case of India was decided on various considerations with some reference to some observations of the Privy Council in the case of Bal Gangadhar Tilak and others v. Shriniwas Pandit and another (R 42 1 A 135). The Supreme Court of India has observed in that case that there are two lines of reasoning in this connection. But it was held that the proper course was to follow the provisions of section 145 of the Evidence Act before the document in question could be admitted into evidence under section 288 of the Code of Criminal Procedure. It was also observed. "In my opinion the second line of reasoning is to be preferred. There is no reason why section 145 of the Evidence Act, should be excluded when section 288 of the Code of Criminal Procedure states that the previous statements are to be subject to the provisions of the Indian Evidence Act. Section 145 of the Evidence Act falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accord with the sense of fairplay to which Courts are accustomed." These observations of the Supreme Court of India seem to have influenced the learned Judges who gave the decision in the case of Fateh Beg and another v. Crown, but the basic consideration upon which the Supreme Court of India seems to have held this kind of view appears to be the observation of the Privy Council as made in the case of Bal Gangadhar Tilak and others v. Shriniwas Pandit and another. That case, however, was a case of civil nature and although questions affecting section 145 of the Evidence Act in relation to a document on the question of adoption for consideration before their Lordships of the Privy Council, yet no question affecting section 288 of the Code of Criminal Procedure was before them. It is very difficult, there fore, for us to follow the reasoning of the Supreme Court of India and with all respect we cannot but think that the season ings given by the learned Judges in the case of Mohammed Serwar v. Emperor, seem to us to be more cogent, convincing and sound. The learned Judges also relied upon certain observations of the Privy Council in the case of Fakirs and others v. King Emperor (L R 641 A 148, 155). The contention as advanced before the Judicial Committee was considered and disposed of in the following manner: "The only objection taken by them was to maintain that the deposition, when admitted under section 288, could only be used for the purpose of cross‑examination within the provisions of section 145 of the Evidence Act. But this contention is clearly untenable in view of the express provision of section 288 of the Code that it is to be treated as evidence in the case for all purposes; the words subject to the provisions of the Indian Evidence Act, 1872 cannot be read so as to limit the purposes for which it may be used." Although the learned Judges in the case reported in P L D 1952 Lah. 275 have not followed the reasoning of the Privy Council as indicated above, yet we do not see as to why the plain and broad construction placed upon the language of section 288 of the Code of Criminal Procedure by the Privy Council should not be kept in view for our guidance. We are, therefore, of the opinion that the discretion of the learned Sessions Judge while considering the desirability of treating as evidence the deposition of a witness duly recorded under Chapter XVIII, when such witness is produced and examined before him, is wide enough as not to be circumscribed by the limitation or consideration of section 145 of the Evidence Act as urged. It is true that when such evidence is sought to be treated as part of the record of the Court of Sessions only for the purpose of contradiction as indicated in section 145 of the Evidence Act, then it is a case purely within the ambit of that section and as such it cannot but be treated as one under section 145 of the Evidence Act. In that case there may not be any scope for invoking the aid of section 288 of the Code of Criminal Procedure. As pointed out in the case of The crown v. Mangal Khan ((1954) 6 D L R 490), if it is intended to use the relevant portion of the deposition only for the purpose of contradiction then the procedure as under section 145 of the Evidence Act should be followed and if on the other band, "where a witness resiles entirely or to a great extent from his previous statement or where he has forgotten a great deal of what he said previously," the discretion under section 288 of the Code of Criminal Procedure should be exercised. The line of distinction, as indicated in this case may serve as a piece of guidance in matters affecting section 288 of the Code of Criminal Procedure, but it is difficult to hold or accept the contention of the learned Deputy Legal Remembrancer that compliance with section 145 of the Evidence Act is a condition precedent to the exercise of the discretion vested in the Sessions Judge under section 288 of the Code of Criminal Procedure. We are, therefore, of the opinion that upon the petitions as made on behalf of the accused for marking out portions of the depositions of the relevant witnesses under section 145 of the Evidence Act or for treating the evidence of a witness, who was actually produced and examined before the Court of Sessions, under section 288 of the Code of Criminal Procedure, the learned Sessions Judge ought to have transferred the relevant depositions or parts thereof for the purpose of section 288 of the Code of Criminal Procedure or section 145 of the Evidence Act according as the circumstances required. It is true that some of the relevant petitions were filed a bit late but this could be remedied if the learned Sessions Judge were so inclined.

17. It is curious to find in this connection that the learned Sessions Judge has himself referred to the evidence given before the committing Magistrate not only for the purpose of contradic tion but also for the purpose of corroboration in regard to some features of the case. It is difficult for us to conceive how this could be done without bringing those parts of the records before the committing Magistrate to the records of the Court of Sessions and without giving facilities to the defence lawyer or others interested in the case to make their submissions by reference to them after admission according to law. The learned Deputy Legal Remembrancer has contended in this connection that, in view of section 167 of the Evidence Act, documents or evidence which appear to have been wrongly taken into con sideration could be excluded and upon the rest of the materials the trial could be reviewed and according to him, the conviction could be maintained. We are, however, unable to give a practical shape to this kind of submission. References to the depositions before the committing Magistrate have been so many and frequent and improper considerations in that manner have been so considerable that if we make an attempt to dispose of the case upon the materials after exclusion of such evidence, it will be more or less an impossible task for us to have anything or any material for our consideration for a proper disposal of the case. It is true that the Privy Council in the case of Abdul Rahim v. The King Emperor (50 C W N 692), has observed that such a course under section 167 of the Code of Criminal Procedure is desirable in certain cases; it is equally true that this Court has also taken a similar view in the case of Azharuddin v. The Crown (2 D L R 380), but for the reasons indicated above we find ourselves unable to make any practical approach in the line as suggested by the learned Deputy Legal Remembrancer. It may be noted in this connection that if the portions of the depositions which ought to have been marked at least for the purpose of section 145 of the Evidence Act are excluded, the accused is sure to be prejudiced. During the hearing of this case there was a suggestion that the irregularity, if any, might be obviated if typed copies of depositions of the witnesses before the committing Magistrate were made parts of the printed paper book and supplied to the parties concerned; but that course also appeared to be practically impossible at this stage for the reasons indicated above.

18. The learned counsel for the appellant has drawn our attention to the irregularities in regard to the statement recorded under section 342 of the Code of Criminal Procedure. The learned Deputy Legal Remembrancer has very vehemently contested the proposition of the learned counsel for the appellant that any prejudice was caused or could be said to have been caused in that connection. As indicated above the learned Sessions Judge was bound to follow the provisions of the Code of Criminal Procedure and there being no bar on the score of section 4(1) of the Chittagong Hill Tracts Regulation, 1900 we are of the opinion that the learned Sessions Judge was bound to follow the procedure as required under., section 342 of the Code of Criminal Procedure and other provisions including sections 361 and 364 of the Code of Criminal Procedure. The accused in the present case is a Pushtu‑speaking inhabitant of the district of Mardan in the North‑West Frontier part of Pakistan. There is no evidence that he knows much of Urdu or any other language. It is not disputed that he is an illiterate man and as such he affixed his thumb‑impression to the state ment recorded under section 342 of the Code of Criminal Procedure. It seems the examination of the accused was taken in Urdu and the learned Public Prosecutor acted as the Interpreter. Apart from the fact that it was not desirable that the Public Prosecutor should figure in the roll of an Interpreter for a purpose like this, it is patently clear that the questions were not put to the accused in Pushtu which is the language understood by him. The learned Deputy Legal Remembrancer has drawn our attention to the possibility of the accused knowing Urdu by reference to the answers recorded in the statement under section 342 of the Code of Criminal Procedure. In our view it is the intelligibility of the question as formulated and put that should be kept in view and not the answers as recorded in the peculiar circumstances of the present case. The second question has been put in this way: ‑ "Q.‑--Why have P. Ws. Sayed Ahmed, Abdul Hakim specifically accused you of the murder ?" Answer to the question referred to above has been recorded in the following manner :‑ "Ans.‑I have only one set of clothes. They were not bloodstained. Those witnesses have had altercation with me over fuel and other matters and so, are not well disposed towards me." This question as a whole was apparently wrong because P. W. Syed Ali might have given direct evidence with regard to murder; but P. Ws. Syed Ahmed and P. W. Abdul Hakim merely purported to give some circumstantial evidence and no direct evidence. Nothing has been pointed out as to which part of the depositions made out the incriminating circumstances important or material enough to be brought to the notice of the accused for explanation. Apart from that, the depositions or the relevant part of the evidence of these witnesses have been put in a lump and it passes our comprehension how the underly ing points could be intelligible to the accused when the evidence pf three important witnesses were lumped together and put to him for explanation. It also appears from the questions for the purpose of the statement under section 342 of the Code of Criminal Procedure that the accused has been more or less sought to be cross‑examined rather than expected to give an explanation. The answer as quoted above does not disclose clearly as to whether it was relevant one keeping in view the nature of the question.

19. There are other questions and answers which do not carry a very happy impression. It has been observed in the decision in the case of Abdul Waha6 v. The Crown (P L D 1955 F C 88), as follows :‑ Where, while examining the accused under section 342 the circumstances appearing in evidence against him' are not put to him and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been ful filled ...... "The real object of section 342 is not to subject the accused to a detailed cross‑examination. It is, as a matter of fact, inviting the attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any."

20. The learned Deputy Legal Remembrancer has submitted in this connection that no objection was taken as to the use of Urdu Language made for this purpose in connection with the trial. He has also submitted that no serious prejudice can be said to have been committed by the manner of questions put to the accused for the purpose of the statement under section 342 of the Code of Criminal Procedure. For the reasons indicated above we are unable to agree with the learned Deputy Legal Remembrancer that no serious prejudice can be said to have been caused or that the requirements of section 342 of the Code of Criminal Procedure have been complied with or fulfilled.

21. As to the question of interpretation it was the clear duty of the learned Judge to keep in view the provisions of section 361 of the Code of Criminal Procedure apart from that of section 360 of the Code which substantially refers to the witnesses examined in the case; but the statement under section 342 of the Code of Criminal Procedure in our opinion should be treated as a piece of evidence for what it is worth. It may have a very restrictive scope of evidentiary value but all the same it cannot but be treated as a piece of evidence; and according to section 361 of the Code of Criminal Procedure the law requires that whenever evidence is given in a language not understood by an accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him. As we have already observed that the accused was a Pushtu‑speaking man, the presumption was that was the language understood by him. There is nothing to indicate that Pushtu language was used in course of the trial. Apart from the undesirability of taking the services of the Public Prosecutor for the purpose of interpretation, we are constrained to find that the course of the trial was held in a manner which might be intelligible to the learned Sessions Judge and to the learned lawyers but it is doubtful whether it was so intelligible to the accused concerned as indicated in the scheme of the Code of Criminal Procedure. We are, therefore, of the opinion that apart from other considerations there was serious prejudice caused to the accused for want of proper recording of the statement under section 342 of the Code of Criminal Procedure. There is nothing to show as required under section 364 of the Code of Criminal Procedure that the statement so recorded was shown or read to him or interpreted in the language, namely, Pushtu, which he understood.

22. The learned counsel has raised a few more points. We, however, think that in view of the order we propose to make it will not be necessary at this stage to express our views either on the merits of the case or on the other points raised by the learned counsel. The question as to whether the evidence of Elonia Begum can be said to be properly admitted into evidence under section 33 of the Evidence Act, may be con sidered in the light of the circumstances as may be revealed when the retrial we propose to order actually takes place. The further question as to the desirability of a local inspection under section 539‑B may be considered by the learned Sessions Judge on merits at the appropriate stage if any request is again made in that behalf. The other question as to whether some of the material witnesses have been withheld does not also in our view call for any consideration at this stage.

23. For all these reasons we are inclined to think that the irregularities indicated above have resulted in a serious prejudice to the accused and they cannot be cured in the circumstance of the case merely under section 537 of the Code of Criminal Procedure. In our view the trial has not been held according to law. The result, therefore, is that this Reference is rejected and the appeal is allowed. The conviction and sentence as passed on the appellant are set aside and the case is remanded to the Court of the learned Sessions Judge for a fresh trial according to law. The accused Ain Khan, however, will remain in custody pending the trial before the Sessions Court. HASAN, J.‑

I agree. S.B./A. H. Retrial ordered.