P L D 1954 Federal Court 104 (PLP)

ABDUL RASHID, C. J.-This is an appeal, by special leave, from a decision of the High Court of Judicature at Lahore dated the 26th March 1953, affirming the convictions and sentences of death, five years rigorous imprisonment, and seven years rigorous imprisonment awarded to the appellant by the Sessions Judge of Gujranwala. The appellant, Muhammad Sadiq, and Iftikhar-ud-Din, approver, used to carry on the business of manufacturing steel trunks in partnership at Gujranwala. Haji Nizam Din deceased used to reside at Naushehra (N.-W. F. P.) and was a dealer in steel trunks. The deceased was an old customer of the appellant and the approver. The case for the prosecution is that the business of the appellant and the approver was not making satisfactory progress, and they formed a plan of robbing the deceased of a large sum of money. On the 10th December 1951, Muhammad Sidiq appellant wrote a post-card (Exh. P/Hl to Haji Nizam Din at Naushehra telling him that iron sheets in large quantities were available at Gujranwala. The addressee was asked to send a reply whether be wanted to purchase these sheets, or to proceed to Gujranwala himself. Haji Nizam Din reached Gujranwala on the 19th of December 1951, with a sum of Rs. 8,

000. He met the appellant who told him that the seth who had a large stock of iron sheets was out of station and would be returning in a few days. Haji Fazal Din, the father of the deceased, was residing at Sialkot. Nizam Din, therefore, left for Sialkot intending to return to Gujranwala a few days later. On the 24th of December 1951, he returned to Gujranwala with his brother Abdul Karim. The latter proceeded to Lahore, and the deceased got into touch with the appellant. The appellant had already arranged with Iftikhar-ud?-Din approver that the deceased, on his return, should be accommodated in the house of the sister of the approver. The deceased was taken into the house of Sunder Singh Chimni Wain, pear Sabzimandi, a part of which had been allotted to the sister of the approver, and was in his possession. Thereafter, the deceased was never seen alive. His body was recovered at the instance of the appellant on the 17th of January 1952. The post-mortem examination revealed that the Haji had died as a result of the fracture of the skull. After Nizam Din had been killed the approver and the appellant extracted all the money that he was carrying from his pockets and buried him in a pit in one of the rooms of the house. As the deceased did not return home for 10 or 12 days, his wife, son and other relatives became very anxious about his whereabouts. An enquiry was made from the appellant, and in response to a communication sent to him, he sent a post-card on the 5th of January 1952 (Exh. P. A.) to the address of Haji Nizam Din saying that Haji Sahib had gone to Sialkot after staying one night at Gujranwla. It was further stated that Haji Sahib had not returned to Gujranwala and that he had also taken from the appellant the address of his father who was residing at Karachi. It was suggested in that letter that enquiry should also be made from the appellant's father at Karachi. The wife of the deceased had meanwhile sent for Abdul Aziz, the brother of the deceased, and bad asked him to go to Gujranwala to make enquiries. Abdul Aziz reached Gujranwala on the 16th taking with him the post-card dated the 5th of January 1952 and another communication that had been received from the deceased, dated the 23rd of December 1951, from Sialkot. He placed all the facts before the police authorities, and the police at once registered a case under section 364 of the P. P. C. against the appellant. On the 17th of January the appellant took the police to the house where the dead body of the deceased bad been interred and got the same recovered. Iftikhar-ud-Din was arrested, and on the 31st of January he was tendered a pardon, and on the 2nd of February he -made a detailed statement before a Magistrate at Gujranwala. The approver in his statement supported the prosecution case except that he deposed that the deceased on arrival at Gujranwala, had been knocked down by a tonga ; t1a't he and the appellant had brought him to his sisters house for rest ; and that he was there provided with a bed and a cot. According to the approver, the deceased died as a result of the injuries that he had received by his being knocked down by the tonga. The money, according to the approver, bad been removed by the appellant and himself from the person of the deceased after he had breathed his last. From the house of the appellant the police recovered a prayer carpet which had been given over to the deceased by his parents at Sialkot when he left for Gujranwala on the 24th of December 1951. A sum of Rs. 1.170 in currency notes was also recovered from his house. The post-card which had been sent by Muhammad Sadiq appellant was recovered from the clothes of the deceased after the body had been dug out. At the trial the evidence was concluded on the 4th of November 1952. Thereafter, the Public Prosecutor addressed the Court and the assessors. On the 5th of November, the defence counsel argued the case on behalf of the appellant before the Court and the three assessors. The Court then sumed up the case to the assessors and recorded their opinion. All the three assessors were unanimously of the view that the appellant was guilty of the murder of Haji Nizam Din; that be had disposed of the dead body of the deceased with the assistance of the approver with the intention of destroying evidence relating to the murder ; and that the accused and the approver had removed from the pockets of the deceased a sum of Rs. 7,700, and had thus committed robbery. After recording the opinion of the assessors, the case was postponed to the 8th of November for judgment. On the 8th of November, the Sessions Judge decided that be should record the evidence of Muhammad Sadiq, son of Abdur Rahim, as a Court witness, This witness was summoned and examined on the 12th of November. The three assessors were also summoned for the 12th but only two were present in Court and the third assessor sent a telegram that he was unable to be present as his brother had been assassinated. After the examination of the witness in presence of two of the assessors a statement of the accused was recorded. The two assessors were not asked to give their opinion afresh. When the appeal was argued before the High Court, it was urged that the opinion of the assessors should have been recorded again after the examination of the Court witness, and that as this procedure was not followed, the entire trial had been vitiated. The learned judges held that the assessors' opinion had already been recorded on the evidence as it existed on the 5th of November, and that the further evidence that had been taken would "merely have strengthened them in the opinion already expressed and not in any way adversely affected their opinion'. It was, therefore, unnecessary to record their opinion once more. They were further of the view that even if it was necessary in law to record the opinion of the assessors afresh the failure to do so was an irregularity which had not in any way prejudiced the accused and which was curable by section 537 of the Cr. P. C. On the merits, the learned judges came to the conclusion that the circumstantial evidence produced by the prosecution together with the statement of the approver had established the case against the appellant conclusively. As mentioned already, the appeal was dismissed and the decision of the Sessions judge was affirmed. In summing up the case, the learned judges have held that the following circumstances have been established against the appellant by the evidence for the prosecution :- "

1. That the deceased came to Gujranwala with a sum of Rs. 8,000 with the object of transacting some business through the appellant ;

2. That he met the appellant at Gujranwala on the 19th and again on 24th December ;

3. That the appellant represented to the deceased some time on the 24th that the business deal which had brought him to Gujranwala was about to mature ;

4. That this representation was false ;

5. That the deceased was done to death on the 24th ;

6. That when inquired about the whereabouts of the deceased, the appellant attempted to mislead his relative ;

7. That the appellant buried a sum of Rs, 1,170 in the form of currency notes in a part of his own house ;

8. That the appellant knew the precise place where the body of the deceased had been buried ; and

9. That the appellant was present when the deceased died and was buried. From these circumstances the only reasonable inference that could be drawn was that the appellant took part in the murder of the deceased and in removing the money from his person and burying his body". Before us, the first point urged by the learned counsel for. the appellant was that it was essential for the learned Sessions judge to record the opinion of the assessors afresh after the Court witness had been examined, and that the failure to do so vitiates the whole trial. I cannot agree with this contention. The evidence of Muhammad Sadiq (C. W. 1) is as follows :- "Haji Nizam Din deceased was my father's eldest brother. Muhammad Ramzan, son of Haji Nizam Din, sent me a letter in the end of a year 1951 from Naushehra that I should com?municate with Muhammad Sadiq at Gujranwala to inquire about the whereabouts of his father. I sent a post-card to Muhammad Sadiq, accused, asking him to tell the whereabouts of Haji Nizam Din and inform Muhammad Ramzan accor?dingly". In reply to the enquiry made by this witness a letter, (Exh. P. A.) is alleged to have been written by the appellant to the heirs of Haji Nizam Din at Naushehra. As mentioned already, it was addressed to Haji Nizam Din.??????? The letter (Exh. P. A.) had been proved, and had been made a part of the record before the evidence of the Court witness was recorded. The evidence of the Court witness, in my opinion, was absolutely unnecessary and superfluous. It is purely of an introductory character. In fact, Ex. P. A. itself states why this letter was written and sent to Naushehra. Moreover, it is clear from the statements of Mst. Maryam, widow of Haji Nizam Din (P. W. 2), that during the course of 10 days that her husband was absent she felt very anxious and that she had sent a telegram to Muhammad Siddiq (Sadiq ?) appellant enquiring about the whereabouts of her husband. She states that Muhammad Sadiq sent the letter Exh. P. A. in reply to her telegram which was received at Naushehra. In view of the testimony of the widow of the deceased the evidence of the Court witness is so superfluous and unnecessary that one marvels at the procedure adopted by the Sessions Judge in ordering that Muhammad Sadiq (C. W. 1 ) should be examined after the opinion of the assessors had been recorded. No finding had been based by the learned Sessions Judge on the evidence of the Court witness, and the learned judges of the High Court have not relied on this evidence in arriving at their findings which have been reproduced above. In these circumstances, it must be held that the failure to record the opinion of the assessors afresh on the 12th November has not prejudiced the accused in any manner. Section 309 of the Code of Criminal procedure lays down that after the opinion of the assessors has been recorded the judge shall give judgment, but in doing so, shall not be bound to conform to the opinions of the assessors If the accused is convicted, the judge shall pass sentence on him according to law. It appears that when a sessions trial is held with the aid of assessors, the trial is at an end as soon as the Sessions judge has taken the opinion of the assessors except for the purpose of giving judgment, and if there is a conviction, of passing sentence. After the opinion of the assessors has been recorded the Session Judge is not entitled to reopen the trial or to record any additional evidence. The learned counsel for the appellant relied on the decision of the privy Council in the case of Basil Ranger Lawrence v. Emperor (A I R 1933 P C 218.) and urged that the trial means the whole of the proceedings including the judgment and sentence. This contention is not supported by the decision of their Lordships of the Judicial Committee. The question in that case was whether the presence of the accused was necessary at the time of passing sentence. In respect of this matter, the following remarks were made by their Lordships :- "But in addition to this vital defect in the procedure up to verdict there has to be considered the alteration and recording of the sentence in the absence of the accused. It is an essential principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused ; and for this Purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence o+ the accused, but on trials for felony the rule is inviolable, unles possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid." In the reported case, their Lordships have definitely stated that for the purpose of passing sentence the trial must be taken to have continued till the sentence is pronounced. The reported decision has therefore no applicability to the facts of the present case. As the trial terminated as soon as the assessors' opinion had been recorded, the Sessions judge had no power to examine the Court witness. The testimony of the Court witness must, therefore, be excluded from consideration in this case. I hold the view that the opinion of the assessors should be taken with respect to the entire evidence produced at the trial, and that if any material evidence is recorded, after the assessors have been discharged, the irregularity or illegality would prejudice the case of the accused. It cannot, however, he laid down in the abstract that the reception of any evidence at that stage would of itself invalidate the trial, however formal or unnecessary the evidence may happen to be. This Court has held repeatedly that it would not interfere in criminal matters unless there has been an abuse of legal processes or violation of the principles of natural justice, and such abuse or violation has led to injustice. A technical defect even if it amounts to an illegality, would not be a sufficient ground for this Court to interfere, unless prejudice has been caused to the accused. No prejudice has been caused by the recording of fresh evidence in this case, after the opinion of the assessors had been taken, and therefore it cannot be held that this irregularity or illegality has led to injustice. After a review of all the relevant authorities, it was laid down by this Court in the case of Sarfraz Ali Khan v Crown ((1951) F C R 78=P L D 1951 F. C. 41.) that a mere technicality or even disregard of forms of legal process will not usually be a sufficient ground for interference by this Court, unless injustice to a party has thereby been occasioned : This Court does not sit as a Court of criminal appeal, and before interference by this Court is justified, it must be established that there has been something so irregular or so outrageous as to shock the very basis of justice. This can only take place if substantial and grave injustice has been done by the Courts below by not following the usual legal processes. I, therefore, hold that in this case the recording of the evidence of the Court witness, after the assessors had given their opinion, and failure to take the opinion of the assessors a second time, has not led to any injustice. The judgment of the High Court cannot, therefore, be set aside on this ground. It was also contended by the counsel for the appellant that the place where the dead body of the deceased was buried had not been pointed out by the appellant, but that this information had already been given to the police by the approver on the 16th of January. The learned judges of the High Court have dealt with this point at great length and have given a finding that it was the appellant who, for the first, time, pointed out the place from where the dead body of the deceased was recovered. This question of fact cannot be allowed to be agitated in this Court, as it is the function of the High Court as a Court of Criminal Appeal to scrutinize the evidence and give its findings thereon. It was strenuously argued that even if all the findings given by the learned judges of the High Court be taken to be correct, there is still room for doubt regarding the complicity of the appellant in the murder of Haji Nizam Din. According to counsel, the approver might have killed the deceased buried him in his sister's house, and informed his friend the appellant later on. On this view, the appellant can only be guilty under sections 201 and 397, but he cannot be convicted under section 302 of the Pakistan Penal Code. I cannot accept this contention. The very first finding given by the High Court is that the deceased was decoyed to Gujranwala by the appellant in order to rob him that the representation that a big deal in iron sheets was soon going to mature was false ; and that this representation was made to the deceased by the appellant. This and other findings given by the High Court lead only to one reasonable inference, and that is, that the appellant took part in the murder of the deceased, in removing the money from his person, and in burying him in his sister's house. I can find no reasonable ground for interference in this case, and I would therefore dismiss this appeal. AKRAM, J.

I agree and I only desire to make this observation that although, generally speaking, it may be broadly stated that where the violation is of a substantive or procedural law, the resulting injustice must be made out before this Court would interfere, yet, if there occurs an infringement of any rule common to all civilised nations as a principle of natural justice or of some such fundamental provision of statutory law or procedure asp concerns matters relating to the jurisdiction or the constitution of Courts or the like, it would not be necessary further to show that the infringement has in fact occasioned a failure of justice, as in such a case, the disregard :of the principles or the provisions aforesaid would itself be considered as tantamount to injustice. I have dealt with this topic to a certain extent in the case of Imran Ullah v. The Crown in which the judgment is shortly going to be pronounced. What I wish to emphasise in this place is that there may be circumstances in which no resulting prejudice need be shown in order to induce this Court to interfere in the exercise of its prerogative powers. SHAHABUDDIN, J.

I agree that the appeal should be dismissed for the reasons expressed in the judgment of My Lord the Chief Justice. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.