1969 PLP 461 (SCMR)

Date of hearing : 15th January 1959. CORNELIUS J.‑This appeal by special leave thus been brought before the Court by one Md. Sonafar Ali against his conviction under section 302 Pakistan Penal Code for the murder by gunfire of two persons, namely, Yosuf and Shamsuddin. He was tried along with a woman Mst. Anwar Khatun who was charged as an abettor. The facts established by the prosecution evidence were as follows. Senafar Ali was an armed Police Constable posted at a border outpost in East Pakistan called Chandsikari, when he began an association with the woman Mst. Anwara Khatun, who lived in village Telipara at a distance of about a mile from hi p place of posting. This became known in the village and was resented by the villagers, who, about a month before the murders, caught hold of both Sonafar Ali and Mst. Anwara Khatun, and gave them a beating. Sonafar Ali and Mst. Anwara Khatun started separate criminal cases in relation to this assault, and in these cases, the deceased Yusuf was an accused person while the deceased Shamsuddin was a witness for the prosecution. After this occurrence Sonafar Ali was transferred away to Pola Danga outpost. On the 12th June 1957, he and another constable Nurul Islam, who was sent to escort him, went out from the Pala Danga outpost in order to arrange for transport to Rajshahii Sadar. A rifle and ammunition were issued to Sonafar Ali. At about midnight between the 12th and 13th June Sonafar Ali was found absent from the side of his companion Nurul Islam. His rifle and ammunition were also missing. The same night, Yusuf and Shamsuddin were shot dead as they were sleeping. That night, Sonafar Ali, was seen near the scene of the shooting by a witness Mst. Marium Bibi, who had been awakened by the noise of the gunshots. She challenged him, and he frightened her by showing her the gun in his hand. She noticed what he was wearing, namely a pair of shorts, a half sleeve shirt, and a belt. During the ensuing investigation, the rifle and the unused: ammunition as well as the pair of shorts, a half sleeve shirt carrying police shoulder badges and a belt were discovered in art open shed at a distance of about half of a mile from the scene of the crimes. The rifle was identified by its number as the very weapon which had been issued to Sonafar Ali. Empty cartridge shells were found in the vicinity of the places where Yusuf and Shamsuddin were shot. These have been proved by the evidence of an expert to have been fired from the rifle issued to Sonafar Ali. Sonafar Ali himself disappeared, and when arrested, gave no explanation for his sudden disappearance nor did he account for the rifle and ammunition issued to him. The evidence against Mst. Anwara Khatun was very meagre indeed. Apart from the proof as to her association with Sonafar Ali, and the incident of assault by the villagers and the consequent prosecutions, the only evidence appearing against her in the case was, in the words of the judgment of the High Court "that she was either soon before the occurrence or soon after the occurrence seen in the company of the condemned accused". The learned Judges of the High Court found that the circumstances established against Mst. Anwara Khatun were wholly insufficient to sustain the inference that she had abetted the commission of the murders of Yusuf and Shamsuddin. The trial was by jury and the jury had unanimously returned a verdict of guilty against Mst. Anwara Khatun on the charge of abetment of murders. The learned Judges found that in the charge to the jury, the Sessions Judge had given a most perfunctory explanation of the law relating to abetment. It had not been indicated in the charge whether the abetment was by instigation or by illegal omission or in pursuance of any conspiracy, or by wilful. misrepresentation or wilful concealment of any material fact which Mst. Anwara Khatun was bound to disclose. The learned Judges held that there was accordingly no evidence upon which Mst. Anwara Khatun could be convicted, and that the conviction was the result of "insufficient guidance given by the learned Judge to the jury" on the point of abetment. It was conceded by counsel for the State before the High Court that there was "no manner of case" against Mst. Anwara Khatun. She was accordingly acquitted. Against the accused Sonafar Ali on the other hand, there was a complete chain of circumstances which excluded the possibility of his innocence. Starting with the evidence of the previous incidents, which serve] as a motive for the crime, there was proof of his presence in. the immediate vicinity of the scene of the murders, shortly after they were committed, with a gun in his hand. It is proved that the gun with which Yusuf and Shamsuddin were shot dead was the very weapon which had been issued to Sonafar Ali, and which was in his possession when he disappeared from the side of Nurul Islam on the night in question. That gun along with clothes of the pattern which he, as a police constable, would be expected to wear were found abandoned at a place only half a mile away from the scene of the crimes. Sonafar Ali did not return to duty after the occurrence and failed to account for the equipment including the weapon, which had been issued to him. These circumstances were completely sufficient to sustain the conviction of the accused person, in the absence of rebuttal, or of any explanation consistent with his innocence. It seems, however, that at the conclusion of the evidence, when the Sessions Judge examined the accused person, he did so in a very superficial manner, i.e. he took no pains to state to the accused the circumstances appearing in the evidence against him,, but merely asked him what his defence was to the statement made against him that he had intentionally killed Yusuf and Shamsuddin with his rifle. To this the accused replied that he was innocent, and he also denied having confessed the commission of the crimes to certain witnesses, as appeared from the evidence. (This confession was not relied upon by the learned Judges). In the judgment of the High Court, the charge to the jury has been criticised in respect of Sonafar Ali as well, on the ground that the exposition of the offence of murder to the jury was "most perfunctory and contains no proper guidance for the understanding of the circumstances in which the offence of murder can be said to have been established in law". The learned Judges have gone on to observe that had the case been one of appeal only before them, they "would not have had the least hesitation in sending the case back for retrial". However, since they were exercising jurisdiction also under section 374, Cr. P. C. in respect of the sentence of death which had been referred for confirmation, they held that the entire case was open before them for examination and for the formation of an independent conclusion as to the guilt or the innocence of Sonafar Ali "untramelled by the verdict of the jury or the ordinary limitations which bind us in an appeal from a trial held by a jury". The expressions used by the learned Judges may be accepted as conveying their own feeling regarding the nature and quality of the error they had found to have been committed by the Sessions Judge, but it fails to be observed that the exposition by a Judge to a Jury of a criminal offence is no academic exercise, and cannot be judged otherwise than in relation to the nature of the offence charged. Where the case was that at dead of night, the accused crept up to the place where his victims were sleeping and from close quarters shot them while they were asleep, the necessity for the Judge to enlarge upon those circumstances in which such a homicidal killing might not have been murder does not appear to our minds to be at all clear. No question of provoca tion or other circumstance having the effect of reducing the crime from murder to culpable homicide not amounting to murder can conceivably arise out of the simple circumstances of the alleged murders, and if the Judge had attempted to explain these difficult matters to the Jury, it could only have had the effect of confusing their minds upon what was essentially a question of the simplest possible kind. As we have already noted, the plea of the accused person was innocence. Therefore, speaking with due respect, we find it necessary to observe that as against the accused Sonafar Ali, no ground of the relevant kind had been made out to justify his retrial. We have already observed that the chain of circumstances established against him was, in the absence of rebuttal, or of an explanation consistent with his innocence, clearly sufficient to justify the unanimous verdict of the jury. It was however urged before the High Court that Sonafar Ali had not been provided at his trial with a proper opportunity to put forward an explanation of the kind indicated above. The learned Judges have, with justification, made strong observations in their judgment disapproving of the superficial manner in which the trial Court had performed its functions under section 342, Cr. P. C. They went on to remark, however, that it had not been shown to them in what manner Sonafar Ali could be thought to have been prejudiced by this failure of duty on the part of the trial Court. Reviewing all the circumstances adduced against the accused and placing alongside the proof regarding the conduct of the accused at the material time, which was also inconsistent with his innocence, they were eventually left convinced that "there has been no serious prejudice caused" to Sonafar Ali and they therefore declined to set aside the trial or the conviction. The omission by the Sessions Judge is indeed a serious one. This Court, and its predecessor the Federal Court have had occasion to remark upon such a defect appearing in other cases, and the impression is gained that it is necessary for the safe dispensation of justice, that where this has not already been done, necessary instructions of general character should be issued to the trial Courts, by such means as may be available to the High Court in law, with the object of ensuring that the valuable right of furnishing explanations in respect of all evidence and circumstances adduced against an accused person should be made available to him, by taking the precaution at the time of his examination under section 342, Cr. P. C. of putting to the accused person each piece of evidence and each circumstance having an incriminatory effect as against him in relation to the offence charged. In the present case, however, we have no hesitation in agreeing with the High Court that no prejudice has been caused to the accused by the perfunctory nature of his examination under section 342, Cr. P. C. The facts sufficient for the conviction, namely, his presence near the scene of the crimes with a gun immediately after the occurrence, and that the gun with which the murders were committed was the precise weapon which had been issued to him and which was in his possession at the relevant time, were plainly established by the evidence, and Sonafar Ali being a police constable may be assumed to be aware of the nature of this evidence, and that, when taken with the proof of the motive and of his conduct at relevant times, this evidence was entirely sufficient to show that he and he alone was the author of the two murders. Therefore, by the mere production of this evidence it may be safely assumed that had he had, any explanation to offer which might have been consistent with his innocence, he was sufficiently conscious of the danger in which he stood at his trial to have put forward this explanation without the necessity of any suggestions from the Court. Accordingly, this appeal is dismissed. Appeal dismissed.