P L D 1950 Baluchistan 10 (PLP)

While it is not customary for a High Court to interfere by using its revisionary powers in cases of finding of fact when ever a finding of fact is not justified by the evidence adduced and there has been a grave miscarriage of justice, there can be no doubt that the High Court can, and should, interfere: ORDER.‑

The facts of this case have been set out in the order of the City Magistrate, Quetta, dated 31st August 1949, against which this petition in revision is directed. There is therefore no need to recapitulate the facts of the case in this order. I have heard learned counsel for the convit‑petitioner as well as the Public Prosecutor and I have also examined the records of this case. From the records, it is clear that convic tion in this case is based entirely on circumstantial evidence and the evidence as recorded is in my opinion of a somewhat doubtful nature. After conviction by the City Magistrate, Quetta, the petitioner appealed and the conviction in the Session Court was upheld. The theft is alleged to have occurred on February 11 of this year and the records disclose that the house of the accused petitioner was searched by the Police on the following day. This search disclosed nothing incriminating in the house of the accused. It is, however, significant that nine days later, the Police recovered the stolen property from the 'baithak' which was attached to the accused's house. In his statement, the accused protested that this 'baithak' though it formed part of house, was occupied by one Islam to whom it had been let out on rent. This statement of the accused is corroborated by P. W. 5 who is the brother of the accused. While it may be argued that little reliance can be placed on the evidence of ,a brother of an accused person I observe, however, that this brother was produced before the Court as a Prosecution witness and in these, circumstances I would not be prepared to disregard the evidence of this witness on the sole on their former search, failed to recover anything from the `baithak'. P. \'V. 4 further corroborates the fact that Islam was in apparent occupation of the 'baithak. I also consider that some suspicion must be attached to the evidence of P. W. 2, who, accompanied the Police party, w‑hen search was made on the second occasion. 1 observe that this witness is frequently used by the Police to accompany them in their searches and while this, in itself, need not be a suspicious circumstance, I further observe that, in cross examination, this witness states that he was told by the Sub‑Inspector of Police to accompany him as he (Sub‑Inspector) had to recover a gun and a machine from a house. This remark pre‑supposes that the Police were aware of the fact that the stolen property was already in the room from which it was ultimately recovered and it is therefore not beyond the bounds of possibility that the stolen property in this case may have been "planted" in order to incriminate the accused‑petitioner. I further observe from the records that after the' charge against the accused was framed, the accused expressed a wish to cross‑examine only one prosecution witness and also cited four witnesses in his defence. All these witnesses were ordered to be summoned but no evidence as recorded on that date as summonses had not been served. The case was then adjourned for the cross‑examination of P. W. 6 and for recording the evidence of the four defence witnesses. Before the next date of hearing, the accused then petitioned the City Magistrate requesting him to record the evidence of one Gulam Raza, as defence witness, as this witness intended to leave for Kashmir. The City Magistrate, however, rejected this petition on the ground that cross examination of. P. W. 6 had not been completed. The propriety of this order in the circumstances stated above has been challenged before me. The record then shows that on 29th August, 1949 the City Magistrate recorded an order stating that the accused had dropped three of his defence witnesses and as Ghulam Raza, the fourth defence witness, had already left for Kashmir and was not available, judgment would be announced on the 31st August, 1949. In order to make certain that the defence had not dropped this witness, this Court directed the City Magistrate to appear and he has now confirmed that while the defence dropped three witnesses they had not dropped the witness. Ghulam Raza. The proceedings of the Court then indicate that judgment was given on 31st August, 1949 and that the one defence witness was not examined because he was not available for examination. The Public Prosecutor has argued that proceedings against an accused should not be stayed indefinitely on the ground that a witness should be examined if circumstances indicated that his presence before a Court would be either difficult or impossible to procure. I am, however, unable to accept this general contention as it would be tantamount to denying an accused person the facilities which are his right in defending himself. The circumstances of this case indicate in the first place that the defence had requested the Court to examine this defence witness before his departure from Quetta. There‑is, I consider, no legal bar against the examination of a defence witness merely on the ground that the cross‑examination of a Prosecution, witness had not .completed, particularly in tire unusual circumstances of this case when the witness concerned was leaving Quetta. Even were I to accept the order of the City Magistrate as legal, the fact still remains that the accused had been denied the elementary right of defence to which he is entitled and a judgment convicting the accused in this case was recorded without any attempt being made to produce the one witness in the accused's defence so that his evidence might be recorded. I also am unable to accept the contention that it was impossible to produce this witness before the Court after his departure for Kashmir. He was serving in a recognised Army Unit and his presence could have been procured without great difficulty as he was a permanent inhabitant of Quetta where his relatives are till living and it should not have been difficult to secure his presence. The Public Prosecutor has laid emphasis on the fact that is not customary for a High Court to interfere by using its revisionary powers in cases of a finding of fact and that its powers under section 439, Criminal Procedure Code should be used very sparingly. With this view I agree. But whenever this Court is of opinion that a finding of fact is not justified by the evidence adduced and it considers that there has been a grave miscarriage of justice, there can be .no doubt that this Court can, and should interfere in such cases. This case before me has, I consider, many elements of doubts in it and I am of opinion that the conviction cannot be allowed to stand. Firstly, the accused‑petitioner has been convicted or purely circumstantial evidence based almost entirely on the fact of recovery of stolen property from a room attached to his house Secondly, the method of recovery of the stolen goods is open to grave suspicion in that, the first search indicated that the stolen property was not in the house but was recovered nine days later, thirdly, there is the unrefuted evidence of certain prosecution witnesses supported by the statement of the accused that one Islam was occupying the room from which tile stolen property was recovered. Finally, the accused petitioner was not given the elementary right of defence before he was convicted, in that the defence witness, he wished to examine was not summoned and Ills evidence has not been recorded. I further observe on this last point that although this was one of the grounds for appeal, in the Lower Appellate Court, this matter was not apparently taken up and is not referred to in the Judgment of the appellate Court. In the circumstances, I consider that the Prosecution have failed to prove beyond reasonable doubt the charge against the accused‑petitioner and the circumstantial evidence against him is of such a doubtful nature that the order of conviction cannot be sustained. I therefore accept this revision petition and set aside the conviction of the accused and the sentence passed against him. I direct that he be set at liberty forthwith. A.H Revision accepted.