1969 PLP 448 (SCMR)

The case for the defence is that Muhammad Tufail went towards the graveyard in the morning to ease himself and was shot at and killed by some unknown persons. An hour or so after the murder, Khadm Hussain and Muhammad Ali deceased came to the scene and saw that Muhammad Tufail had been killed. When they reached the place of occurrence Nur Hussan and Ghulam Rasul, brothers of Muhammad Tufail; Hakam Ali, his first cousin, and Madad Ali and Mubarak, his second cousins suspected Muhammad Ali and Khadim Husain of having murdered their relative. A quarrel ensued between these five men ‑on the one side, and Khadim Hussain and Muhammad Ali deceased on the other. It was in this quarrel that Khadim Hussain and Muhammad Ali were shot down by the relatives of Muhammad Tufail. During the trial no defence evidence was produced on behalf of the appellants to prove their version. The learned Sessions Judge disposed of the defence in the following words :‑ "The defence stressed the fact that Mst. Nawab Bibi, mother of Khadim Hussain supported the defence theory, and that a complaint was also filed by one Faqir Muhammad. Neither Mst. Nawab Bibi nor Faqir Muhammad has, however, been produced by the defence. Moreover, both the application and the complaint were inquired into by the police and the fact that no action was taken shows that in the opinion of the police the story was false. No reason has been shown why the police should prefer the one version to the other nor is it established that they had any motive for falsely implicating the present accused." The case was argued in the High Court on behalf of the appellants by Mr. Sleem. After arguments in the case were practically over, Mr. Sleem put in an application requesting the Court to call and examine eleven witnesses in support of the defence allegation that the murders of Muhammad Ali and Khadim Hussain were not committed by the appellants but by other relatives of Muhammad Tufail. It was stated in the Application that the first six witnesses related to the occurrence itself, while the five Advocates i. e. witnesses Nos. 7 to 11 "related to what was being said at the spot, sometimes later". 'The learned Judges passed the following order on this application :‑ "No sufficient reason for not examining these witnesses at the trial has been made out and it is obvious we cannot hold a fresh trial. But since the omission to substantiate by evidence the defence story might have been due to wrong advice by counsel, in the interests of justice we are willing to examine some of the alleged eye‑witnesses. In order to apprise the evidence of such witnesses, it will be necessary to know whether they appeared before tar made statements to the police. Therefore the investigating officer also will have to be called to throw light on this part ‑of the case." In the result three of the alleged eye‑witnesses were summoned and their statements were recorded in the High Court. They are Mst. Nawab Bibi (D. W. 2), Nathu (D. W. 3), and Faqir Muhammad (D. W. 1). The learned Judges of the High Court carefully examined the evidence for the prosecution and the defence and came to the conclusion that Sardar Muhammad, Nur Hussan and Arur, prosecution witnesses had given a sub stantially correct account of the incident, that the evidence of the three defence witnesses was completely false, and that the case for the prosecution had been established beyond a shadow of doubt. Special leave to appeal was granted in this case mainly on two grounds. It was contended on behalf of the appellants by Mr. Sleem that a great deal of inadmissible evidence had been brought on the record by the Sessions Judge and that the learned Judges of the High Court had also been influenced by the contents ‑of the police diaries. It was also urged that once the High Court had decided to allow the production of evidence in support of ‑the defence version in appeal, it was not open to the learned Judges to cut down the number of witnesses required by the defence. We have heard lengthy arguments on these two points and we hold that both these contentions are devoid of force. Mr. Sleem contended that the learned Sessions Judge had discarded the defence version of the incident solely on the ground that the police had inquired into this matter, and the fact that no action was taken shows that in the opinion of the police the story ,was false. 'It was urged that the Sessions Judge had thus been influenced by the contents of the police diaries. We find, however, that the learned Sessions Judge really rejected the defence version on the ground that Mst. Nawab Bibi and Faqir Muhammad, who were alleged to be eye‑witnesses of the murder of Muhammad Ali and Khadim Hussain by the relatives of Tufail Muhammad, were not produced by the defence as witnesses. After having remarked that in the absence of these persons the defence story could not be held to have been established, the learned Sessions. Judge made the remarks which have been reproduced above. It could not be said that Sessions Judge was relying on the police diaries in order to discard the defence version. As far as the judgment of the High Court is concerned, the learned counsel laid great emphasis on a passage occurring at p. 91 of the record which is in the following terms :‑ "It is a pity that while dealing with this aspect of the case: we cannot refer to the police diaries or to the evidence of the investigating officers in order to contradict the witnesses who, have deposed to the defence version." The counsel urged vehemently that the above passage in the judgment showed that the learned Judges had studied the police, diaries carefully, and that as a result of their perusal of the diaries had reached the conclusion that as the evidence of the investigating officers contradicted the statements of the defence witnesses, the defence version could not be relied upon. The defence version had therefore been discarded as a result of the impressions derived by the learned Judges by a perusal of the: police diaries. This, in our view, is not a correct interpretation of the findings of the High Court. The statements of the defence: witnesses have been carefully examined by the learned Judges anti they have shown that neither Mst. Nawab Bibi, the mother of Khadim Hussain, deceased, nor any other relation of Khadim Hussain and Muhammad Ali ever called in question the bona fides of the police before the 6th of June. They have pointed out that Mst. Nawab Bibi at first admitted herself that she was present: during the investigation when several police officials, including the D. I. G. of Police, arrived, and that she complained to them about the course of the investigation. It was, however, con clusively proved by other evidence, according to the learned: Judges, that Mst. Nawab Bibi in fact made no such complaint. The learned Judges then arrived at the conclusion that while the accused persons were not to be found in the village when the police arrived on the scene of occurrence and none of the relations of Khadim Hussain and Muhammad Ali including Mst. Nawab Bibi were complaining about the course of the investigation, aft of a sudden, on the night of the 5th of June, Mst. Nawab Bibi left the village and made an application to the Superintendent of Police on the 6th of June. In these circumstances the learned: Judges were fully justified in holding that the defence versions was a belated one, and that the application made to the S. P, and an affidavit filed in the High Court were not the voluntary acts of Mst. Nawab Bibi but were procured from her by someone interested in the accused persons in this case. When the learned Judges remarked that it was a pity that while dealing with defence version they could not refer to the police diaries or to the evidence of the investigating officers in order to contradict the witnesses, they merely meant to convey that they had eliminated the police diaries from consideration in giving a finding that the defence version came into being for the first time on the 5th of 6th of June. Mr. Sleem next contended that the learned Judges should have called all the eleven witnesses included in the application made by the defence on the 7th of May 1951. The attitude taken up by the learned Advocate‑General in this respect was f that the Judges of the High Court were not entitled to record the evidence of any one of these witnesses. He urged that the learned Judges had themselves remarked that no sufficient reason for not examining the defence witnesses at the trial had been made out, and that in view of this remark their order allowing the produc tion of three of these witnesses was not only wrong, but was unreasonable and perverse. It was maintained that there was no affidavit on the record to justify the remark of the learned Judges that the omission to produce defence evidence might have been due to wrong advice by counsel. In the absence of any affidavit or statement by the counsel the Advocate‑General submitted, the learned Judges should not have held that any wrong advice had been given by counsel to the appellants in the trial Court. He, therefore, maintained that as the learned Judges were granting an exceptional indulgence to the appellants it was open to them to cut down the list of the defence witnesses and examine only Mst. Nawab Bibi, Faqir Muhammad and Nathu. We are not prepared to accept the argument advanced by the Advocate‑General that the order of the learned Judges dated the 8th of May 1951, was perverse. Section 428, of the Cr. P. C.' authorizes the appellate Court, if it thinks additional evidence to be necessary, to record its reasons, and to take such evidence' in the interests of justice. It is true that this discretion must be; exercised in a judicial manner and a purely arbitrary or capricious; exercise of this discretion is liable to be set aside by this Court. In the present case however, it appears that the counsel for the defence were under the impression that certain documents produced by the prosecution at the trial gave a sufficient indica tion of the defence version, and that it was therefore unnecessary to examine Mst. Nawab Babi, Faqir Muhammad, and Nathu. as defence witnesses. When the Sessions Judge made adverse com ments in his judgment on the non‑production of Mst. Nawab Bibi and Faqir Muhammad, the legal advisers of the appellants tried to rectify their mistake by asking the High Court to allow additional evidence at the appellate stage. The learned Judges of the High Court, therefore, did not exercise their discretion in an arbitrary or capricious manner in this case. We have already said that there was justification for the learned Judges not to summon witnesses 7 to l I as their evidence would have been hearsay. As regards the first six witnesses it was open to the learned Judges not to record the statements of all of them. Mr. Manzur Qadir appears to have been asked as to which three of these witnesses he would care to examine, and he chose the first three who were the most important. No party has a right in an appellate Court to the production of any evidence at all. It is the Court that has to exercise its discretion in a proper manner in the interests of justice. We find that only three witnesses were mentioned by name in certain documents relating to the defence version which were produced in the Court of the Sessions Judge. We hold that by cutting down the list of the defence witnesses to three, the learned Judges did not violate any principle of natural justice in this case. Mr. Sleem urged that after discarding the defence version the learned Judges arrived at the conclusion that the prosecution version must necessarily be true and that in arriving at this conclusion they had not given sufficient consideration to the examination of the statements of the eye-witnesses. We cannot accept this argument, as we find that the learned Judges of the High Court have given thorough and due consideration to the evidence of the eye‑witnesses produced by the prosecution. As this appeal did not fall within the limited jurisdiction, that this Court exercises in criminal matters, we did not permit the learned counsel for the appellants to take us through the c entire evidence in an effort to show that the guilt of the appellants had not been established beyond reasonable doubt. We can find no reasonable ground for interference in this case and dismiss the appeal. Appeal dismissed.