P L D 1958 Supreme Court (Pak (PLP)

The prosecution case rested on the testimony of the two alleged eyewitnesses and the dying declaration of the deceased himself embodied in the first information report. The evidence of the eyewitnesses was accepted by the High Court and there would have been plainly no ground for urging that the con clusions reached on that evidence were open to any legal exception. The first point raised in appeal is that the charge framed against the appellants merely called upon them to answer a case under S. 307, P. P. C. rather than one under S. 302 read with S. 34, P. P. C. The charge is in the following terms :‑ "I, K. Fazal Rehman Khan, M. I. C., Swabi, hereby charge you Hazrat Jamal and Muhammad Jamal as follows‑:‑ That you, as (sic) or about the 29th of April, 1956, in furtherance of your common intention, in the limits of lands of village Managai, attempted to murder Mohabbat Khan deceased, by firing at him and wounded him, with your topak. And thereby committed an offence punishable under Ss. 302/34 of the Pakistan Penal Code, and within Sessions cognizance. And I hereby direct that you be. tried by the said Court on the said charge. Although S. 302 read with S. 34 is expressly mentioned, the learned Committing Magistrate omitted to say in the body of the charge that the death of the victim had resulted in con‑sequence of the injuries caused to him with gunshots and to specify in so many words that the offence committed was one of murder. The question, therefore, that falls for deter mination is whether the omission of these particulars vitiated the trial. In this connection the provisions of S. 225 and S. 537 of the Code of Criminal Procedure, are relevant. The former section lays down that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the `case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Section 537 of the Code, inter alia, provides that no finding, sentence or order passed by a Court of com petent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, pro clamation, order, judgment or other proceedings, before or during trial, or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity has in fact entailed a failure of justice. The Explanation appended to the section declares that in determining whether any error, omission or irregularity in any proceeding under this Code has led to a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. We find from the record that in the Urdu version of the charge, which was the one that had been read out to the accused persons at the end of the proceedings in the Committing Court, there are express words to the 8ffect that the accused persons were being charged with having killed the deceased. This Urdu copy of the record, however, does not bear a stamp showing that it had been transferred to the Sessions record. The English version of the charge has been set out above. There is an endorsement on the record signed by the learned trial Judge to the effect that the charge had been read out to the prisoners and the purport thereof explained to them in the language, which they understood. We take it, therefore, that the purport of the charge must have been explained to the appellants in a proper manner and this is supported by the Urdu version of the charge which was, according ' to the endorsement of the Committing Magistrate, actually read out to the accused at the conclusion of the commitment proceedings. The questions that were put by the Committing Magistrate to the accused persons, which were tendered as evidence at the trial and which were admitted by them to have been correctly recorded, also clearly indicate that they were told that the injuries caused to the deceased by means of gun‑shots resulted in his death. In the circumstances, we are convinced that the appellants could have been under no illusion as to the charge they had to defend themselves against. This view is reinforced by the fact that at no stage during the trial, exception was taken to the charge. It is, therefore, difficult to accept the contention raised by Mr. Brohi on behalf of the appellants that any prejudice was caused to the appellants in heir defence by the omission of certain words from the charge or hat the said omission had occasioned in fact a failure of justice n the present case. Learned counsel for the appellants did not press the second Joint, namely, that the statements of certain witnesses, as recorded by the Committing Magistrate, were illegally transferred under S. 33 of the Evidence Act to the Sessions record. Even if the statements of those witnesses are ruled out of consideration in view of this objection, the remaining evidence on the file would have been ample to sustain the conviction on the merits. We may add that the procedure adopted by the trial Judge in this connection had little to commend itself, as the conditions requisite for invoking S. 33 of the Evidence Act were not proved to exist. The main emphasis of Mr. Brohi was on the alleged con travention of S. 356 of the Code by the trial Judge. This section may be reproduced in extenso. "356. (1) In all other trials before Courts of Session and Magistrates, and in all inquiries under Chapters XII and XVII, the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge. (2) When the evidence of such witness is given to English, the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, ‑or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record. (2‑A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the' Court or in English shall form part of the record. (3) In cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record. (4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reason of his inability to make it." The learned trial Judge, as appears from the record, the evidence of witnesses to his stenographer in open Court and when the transcript was prepared by the latter, he signed it He maintained no memorandum of the evidence as the examina tion of each witness proceeded. The language of the subordinate Courts in the Peshawar region is said to be Urdu and it is Mr. Brohi's grievance that no record of the evidence was maintain ed in that language. It transpires that the Government of the old North‑West Frontier Province had issued notification No. 3174‑L. D., dated the 26th of January 1937, under S. 357 of the Code, reading as follows : "Under section 357 of the Code of Criminal Procedure, 1898, the Governor‑in‑Council is pleased to direct that throughout the North‑West Frontier Province, the evidence of each witness shall, in the cases referred to in section 356 of the Code of Criminal Procedure, 1898, be taken down by the Sessions Judge or Magistrate with his own hand and in English, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court: If the Sessions Judge or Magistrate is not sufficiently acquainted with the English language but is sufficiently acquainted with the language of the Court, he shall take down the evidence in the language of the Court. In order to appreciate the effect of this notification it is necessary to advert to the provisions of S. 357 of the Code. This section is in the following terms "357. (1) The Provincial Government may direct that in any district or part of a district, ‑or in proceedings before any Court of Session, or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case be shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court. (2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate, and shall form part of the record Provided that the Provincial Government may direct the Sessions Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother‑tongue." The analysis of S. 356 and S. 357 of the Code taken together establishes clearly, in our opinion, that it was not necessary to maintain the record of evidence in the language of the Court (Urdu) and the record in English is to take its place in view of the notification issued by the Provincial Government. Mr. Brohi attempted to attack the vires of that notification by suggesting that S. 357 of the Code did not contemplate the substitution of the procedure envisaged in section 356 completely, but that a notification issued under S. 357 could only modify the position as obtaining under sub‑ss. (2) and (2A) of S.

356. Such a suggestion is plainly untenable on the clear language of S. 357, Cr. P. C. Subsection (I) of that section apparently covers all cases referred to in S. 356 and once a notification has been properly issued under that section, it would serve to displace B the provisions embodied' in S.

356. Mr. Brohi's contention, therefore, that despite the notification under S. 357, the trial Judge was not absolved from the duty of maintaining the record in Urdu, cannot be acceded to. Mr. Brohi suggested that this construction of Ss. 356 and 357 would rob s. 558 of the Code of all significance and meaning.' We are unable to accept that suggestion as sound. Section 558 is a general section under which the Provincial Government may determine what shall be deemed to be the language of a Court other than the High Court, for the purposes of the Code. Obviously that would be the language, if the choice has been made under the section, in which petitions to be presented to the Court have to be expressed in order to be officially acceptable C and the record of evidence would also be normally required to be kept in that language, as directed by S.

356. The next succeeding section of tire Code however makes special provision with regard to a limited subject‑the language in which the record of evidence. has to be kept by a Court. The maxim generalia specialibus non-derogant is obviously applicable and a notification under S. 357 would prevail even if it favours a language other than the language of the Court declared under S. 558, for the purpose of recording evidence. Although at one stage of the argument Mr. Brohi conceded that in pursuance of the notification issued under S. 357 by the defunct North‑West Frontier Province, the trial Judge would be relieved of the necessity of keeping a memorandum of the substance of what each witness deposed, even if he dictated the evidence to his stenographer in open Court, yet he later shifted his ground and urged that subs. (3) of S. 356 was not in any case affected by a notification under S.

357. No authority was cited before us on this point, and the language of S. 357 itself would appear to militate against the contention raised by the learned counsel. From the very nature of the case, if the evidence is dictated in his own words by the presiding officer, to a steno grapher it would be difficult for him simultaneously to prepare a memorandum of the evidence of each witness as it proceeds and indeed the necessity for doing so would not be apparent when the record of evidence is maintained in the very words of the trial Judge himself. In this connection, it is pertinent to note that while S. 356 talks of the 'evidence of each witness being taken down either by the presiding officer himself or "in his presence and hearing and under his personal wide superintendence", S. 357 provides that in case where the evidence is not taken down by the presiding officer himself or in his hand, he shall record the reason of his inability to do so and shall cause evidence to be taken down in writing from his dictation in open Court". It may be that the Legislature while, providing for the memorandum to be prepared in the hand of the presiding officer in case the evidence is recorded "in his presence and hearing and under his personal direction and superintendence", did not contemplate the preparation of a similar memorandum in case the evidence was dictated by the presiding officer in open Court. The object of these provisions is after all to secure as faithful and accurate a record of what each witness says in Court as it is possible to make and that object, we apprehend, would be amply served by the preparation of a record to the dictation in open Court by the trial Judge. Even if, however, it is assumed that Mr. Brohi is right in his contention that the issue of the notification in question under S. 357 did not dispense with the necessity of keeping a memo randum of the substance of the depositions of witnesses in the E hand of the presiding officer, it would at best amount to an irregularity and would not affect the validity of the trial, unless it could be shown that prejudice had actually resulted to the accused persons. This view is supported by authority and would be consistent with the provisions of the Code contained in S. 537 see inter alia Nayeb Shahana and other v. Emperor (A I R 1934 Cal. 636), Rehmat Khan and another v. ‑ The Crown (P L D 1951 Lah. 228) and Muhammad Aziz v. The Crown (P L D 1950 Lah. 134) Such a procedural defect must be distinguished from that of contravening a positive prohibition of the Code such as forms the subject‑matter of N. A. Subramania lyer v. King Emperor (28 1 A 257), as was pointed out by the Privy Council in Abdur Rehman etc. v. King‑Emperor (1 L R 27 Cal. 839), where the question was whether non‑conformity with the procedure laid down in Ss. 360 and 361 of the Code (with regard to the evidence of witnesses being read out to them on completion) would be enough to invalidate a trial. The position of Ss. 356 and 357 of the Code appears to be on a par with the sections that required considera tion in that case. No actual prejudice appears to have been caused to the defence by the failure of the presiding officer to prepare a memorandum of the depositions of witnesses in his own hand in the present case. Mr. Brohi tried to make much of the fact that in the evidence given by the medical witness at page 6 of the printed paper book, Dr. A. H. Zaman is supposed to have stated that he had examined Mohabbat Khan in his lifetime, on the 29th April 1956, at 1 p.m., whereas the occurrence in the case had admittedly taken place at 4 p.m. that day. Learned counsel seized upon this fact as revealing that the record was prepared inaccurately because of, the procedure adopted. On referring to the original medico‑legal report of Dr. Zaman it seems to us that 1 p.m. is very probably a mistake for 11 p.m. No other part of the record has been challenged as incorrect and this inadvertent mention of 1 p.m. by the doctor seems to have no bearing on the merits of the case. On the facts, therefore, even if there had been some substance in the argument advanced by Mr. Brohi with regard to the necessity for a memorandum, it is not possible to say that any failure of justice resulted from the procedure adopted or that the accused were handicapped in their defence. Mr. Brohi then drew our attention to S. 364 of the Code, which makes it incumbent on the presiding officer of the Court who does not record the statement of the accused in his own hand, to make a memorandum thereof in the language of the Court or in English, to be signed by him and annexed to the record. If the presiding officer is unable to make a memorandum as so required, he is to record the reasons of his inability. In the instant case, the statement of the accused, at the trial, was taken down in English. The only reason mentioned by the trial Judge as to why he was not maintaining a memorandum of evidence in his own hand is that there was great rush of work. This, it is suggested, would not be adequate justification for the omission to keep a. memorandum of the accuser s statement. In the first place, this point was not specifically taken in the petition for special leave to appeal and was not mentioned in the order granting the leave. Secondly, even if such an irregu larity was committed, it would again be curable under s. 533 of the Code in so far as the accuser s statement is concerned, provided that the error has not injured the accused as to his defence on the merits. No such case has been made out before us. The upshot of the whole discussion is that none of the grounds on which special leave to appeal was granted in this case, on closer examination, would justify interference with the judgment of the High Court. We, therefore, dismiss the appeal. K. B. A. Appeal dismissed.