P L D 1954 Federal Court 293 (PLP)

ABDUL RASHID, C. J.-This is an appeal, by special leave, from a decision of the Chief Court of Sind, dated the 26th November, 1, 1952, confirming the sentence of death awarded to the appellant Khan, son of Muhammad, by the Sessions Judge of Hyderabad. Four married couples lived in one house in a field outside village Arzi Hakro. They were Ubero and his wife Mst. Kamil. Changul and his wife Mst. Nooran, Hakim and his wife Mst. Nur Khatun, and Khan, son of Muhammad Hakro, and his wife Mst. Bhagul. Mst. Bhagul had given birth to a child in the last week of September 1947. About the 15th of October the appellant began to ask his wife, Mst. Bhagul, to resume sexual intercourse with him. She refused stating that she was not in a position to resume marital relations so soon after child-birth. On the 17th of October 1947, Khan, son of Muhammad, was seen sitting on the cot of his wife, Mst: Bhagul deceased, and speaking to her in a low tone. Soon after this he got up, went inside a room and came out with a hatchet and torch. He dealt several blows on the person of his wife with the hatchet. She tried to run away but was not allowed to escape. The inmates of the house tried to catch hold of the assailant, but he threatened to kill them, and ultimately escaped with his hatchet. Changul went to Arzi Hakro and reported the matter to Zamindar Ali Muhammad Hakro who directed him to go to the police station. Changul accordingly went to Uderolal Police Station and lodged the First Information Report at 7-0 a. m. on the 18th October. Khan, son of Muhammad, absconded and could not be traced for two or three years. Proceedings under sections 87 and 88 of the Cr. P. C. were started against him and a Magistrate also recorded evidence of all the prosecution witnesses under section 512 of the Code. On the 28th of February 1951, Muhammad Sadik Head Constable (P. W. 10) received secret information that Khan, son of Muhammad, was sitting in a hotel near the railway station. The Head Constable went to the hotel immediately and arrested the appellant whom he claims to have known before. The Head Constable made a mashirnama in the presence of Rasul Bakhsh (P. W. 11) relating to the capture and arrest of the appellant. The defence of the appellant, which was consistently adhered to before the Committing Magistrate and at the trial, was that the appellant was not the murderer of Mst. Bhagul. He was not the husband of the murdered woman, and he was not Khan, son of Muhammad, of village Arzi Hakro. The appellant claimed to be Khan, son of Fazal Khashheli, resident of village Matiari. The principal point involved in this case is, whether it has been established on the record beyond reasonable doubt that the appellant is Khan, son of Muhammad Hakro, resident of village Arzi Hakro. The learned Sessions Judge examined the entire evidence relating to this question and came to the conclusion that the evidence of Muhammad Sadik Head Constable (P. W. 10) and Abdul Alim Clerk (P. W. 7) conclusively established that the appellant was Khan, son of Muhammad Hakro, of village Arzi Hakro. As a result of this finding, the accused was convicted and sentenced to death. The appeal preferred by the appellant was originally heard by a Division Bench of the Sind Chief Court consisting of Constantine, C. J. and Muhammad Bachal, J. on the 13th of February, 1952. It) may be stated that the eye-witnesses had denied before the Sessions Judge and in the Court of the Committing Magistrate that the accused was Khan, son of Muhammad Hakro. They had stated that they did not know the convict who was being tried by the Sessions Judge. When the appeal came up for hearing, the learned Judges of the Sind Chief Court recognized this unsatisfactory feature of the case, and arrived at the conclusion that further enquiry should be made regarding the identity of the appellant. Their observations in this respect may be reproduced in extenso :- "The only positive evidence on behalf of the prosecution is that of the Head Constable, Muhammad Sidik, and of Muhammad Alim who was clerk of the Resident Magistrate before whom the accused was produced on 2nd March. Muhammad Sidik was a mounted constable at Uderolal police station for 7-8 months in 1940 and states that during that period he came to know the appellant as one of the inhabitants of Arzi Hakro village and that when on obtaining spy information he went to the hotel at Uderolal recognised the appellant. The Clerk's evidence is that he took down the particulars on the "Face Diary" from the accused's own mouth. No motive of enmity has been suggested by the defence as against these two witnesses, but in the case of the one over 10 years had elapsed since he had seen Arzi Hakro, while in the case of the other it might be that he did not wish it to be thought that he had not done what he considered his duty and that he might have taken the essential details from the challan which had been sent up." It is clear from the above observations that these learned judges regarded the evidence of identification as highly unsatisfactory, and it was for this reason that they ordered that furthey enquiry regarding the identity should be made by the Sessions judge under section 375 of the Cr. P. C. The learned judges also made the following obser?vation :- "The learned Sessions judge has said that the accused could have produced the evidence of persons to establish his identity and that an inference should be drawn against him because he has not done so ; it is however for the prosecution to establish his identity. We think however that Jindal Shah having been mentioned by the accused as his Zamindar should be examined (by the Court if necessary), and that the prosecution and the defence are at liberty to lead further evidence upon the point of the appellant's identity. This evidence must necessarily be taken in the presence of the appellant. The evidence should be certified to this Court as soon as possible." The learned Sessions judge recorded the evidence of five persons but did not record the statement of Jindal Shah. When the case was taken up by the Chief Court again, it was not heard by Constantine, C. J. and Muhammad Bachal, J. but was placed before a Division Bench consisting of Vellani, J. and Muhammad Bakhsh, J. This Bench came to the conclusion that the counsel for the accused had not been given a proper opportunity to cross-examine the witnesses whose statements had been recorded by the learned Sessions judge and that, in the circumstances, the statements of Jindal Shah and the other witnesses regarding the identity of the accused should be recorded afresh in the Chief Court. A large number of witnesses were examined in the Chief Court relating to the question of identity and as a result of this supplementary evidence Vellani, J. and Muhammad Bakhsh, J. came to the conclusion that it had been established that the appellant before them was Khan, son of Muhammad Hakro, of village Arzi Hakro, and that he had murdered his wife Mst. Bhagul. It was pointed out by the counsel for the appellant vehemently before us that the learned judges of the Sind Chief Court had not examined the conduct of the trial in the Sessions Court carefully, and that had they done so, they would not have ordered the recording of additional evidence at the appellate stage under section 375 of the Cr. P. C. It was urged that further enquiry should ordinarily be ordered by the High Court when there is any defect in the procedure adopted in the Court of Session, or when a certain important point has escaped the notice of the Sessions judge and the parties. The circumstances in the present case were such that the Appellate Court should not have ordered the recording of additional evidence at all. The trial in the Sessions Judge's Court started on the 17th of September 1951. On that day, Hakim (P. W. 4), who was the first eye?witness in the case, was examined. He stated that he did not know the accused who was being tried and that the person shown to him was not Khans son of Muhammad Hakro. After the statement of this witness had been recorded Mr. Wajihuddin Ahmed A. P. P. made a written application to the Sessions Judge stating that all the eye-witnesses are the relatives of Khan accused and it is for this reason "that they have denied the identity in order to save him." It was prayed that the prosecution may be allowed to produce independent witnesses of the village on the question of identity. The Court was requested to summon for witnesses for the purpose, namely, (1) Gul Hakro ; (2) Sajan, son of Sakhlado ; (3) Mewal Shah; (4) Hydershah. This application was granted by the learned Sessions Judge. It is obvious from this application that at the very beginning of the trial it was realized that the question of the identity of the accused was the vital question in the case. The A. P. P. therefore asked for the production of four additional witnesses on the question of identity. It was on the very first day of the trial that the learned Sessions Judge exercised his powers in favour of the prosecution by ordering four additional witnesses to be summoned on the question of identity. On the 18th of September the Public Prosecutor made a statement that he did not wish to produce Sajan as he had been won over by the other side. The Sessions judge thereupon passed an order "Let him be made available to defence". On the 18th of September the statements of two more eye-witnesses were recorded and they, also stated that they did not know the accused who was being tried, and that he was not Khan, son of Muhammad. The Public Prosecutor thereupon made another written application in the Court of the learned Sessions judge which is as follows:- "It is respectfully submitted that the accused denies to be Khan son of Muhammad and in order to get the real identity, Tapedar of the village and other respectable persons of the village are required in evidence and Serishtedar and Resident Magistrate, Hala, are also required to prove the proceeding under section 512 in the above case. I therefore request you kindly summon the witnesses in the interest of justice. 1.???????? Tapedar along with his papers regarding village Arzi Hakro from 1945 to 1947. 2.???????? Haidershah, resident of Wadero Lal. 3.???????? Resident Magistrate, Hala. 4.???????? Serishtedar Hala (Mr. Muhammad Azam). 5.???????? Mewal Shah Arzi Hakro. (Sd.) Wajihuddin Ahmed, A. P. P." 18th September 1951. This application was also granted by the Sessions judge, the order being "that two of the witnesses in the application have already been called ; that regarding one witness no particulars have been given, and that the Resident Magistrate of Hala may be called by teregram." The Sessions judge on the 17th and the 18th of September granted every facility that was asked for by the prosecution and the prosecution put in two applications containing the names of as many as nine witnesses whom they wished to examine on the question of the identity of the accused. The point that requires determination is whether Constantine, C. J. and Muhammad Bachal, J. were right in exercising their powers under section 375 of the Cr. P. C. in ordering the production of additional evidence on this question when the prosecution had already been awarded two opportunities to supplement their evidence in this respect. This question has been dealt with at great length in my judgment and in the judgment of my brother Cornelius in the case of Ali and another v. The Crown (P L D 1952 F C 71.). We have pointed out in that judgment that the provisions of sections 375 and 428 of the Cr. P. C. are meant to be used in such a manner as to secure even-handed justice to both parties, and that they should not be utilized to cure all the infirmities in the prosecution case in the Appellate Court. We have held that it does not make the slightest difference whether the additional evidence is required by the Court or is produced by the parties. Despite the wide terms of section 375 of the Code, the powers given to the Appellate Court are only meant to be exercised where the additional evidence was either not available at the trial or the party concerned was prevented from producing it either by circum?stances beyond its control or by reason of mix-understanding or mistake. In the present case, it was known to the Public Prosecutor all along that the question of identity was the most cardinal question in the case. He actually put in two supplementary lists of witnesses before the learned Sessions judge and his request was granted in both instances. The prosecution was not taken by surprise at the appellate stage, nor was there any mistake or misunderstanding with respect to the important points involved in the case. The Sind Chief Court should not have, therefore, ordered an enquiry on the question of identity of the accused when they heard the appeal on the 13th February 1952. It is interesting to examine the statement of Wazir Hussain Shah (C. W. 1), Sub-Inspector of Police Hala in this connection. After additional evidence was ordered on the 13th February 1952, he went over to Uderolal Police Station and collected a large number of persons from Arzi Hakro. He began a completely fresh investigation. He was sitting in the Sessions Court on the 2nd of July, 1952, when additional evidence was to be recorded, when he met a retired Sub-?Inspector Haji Kadirbux. He and Haji Kadirbux inquired from each other as to the object which had brought them to the Sessions Court. Haji Kadirbux then told Wazir Hussain Shah that he knew the accused Khan, son of Muhammad personally. He, however, did not record the evidence of Haji Kadirbux, retired Sub-Inspector. He informed the Public Prosecutor about this, and that is how Kadirbux, retired Sub-Inspector, was unearthed and examined. This Sub-Inspector had not investigated into the case originally. This shows that a completely new investigating agency was pressed into service by the Crown to fill in the gaps in the prosecution case when additional evidence was ordered to be recorded by the Chief Court by its order dated the 13th of February, 1952. In these circumstances, we have not the slightest hesi?tation in holding that the Sind Chief Court did not exercise its discretion under section 375 of the Cr. P. C. in a judicial manner, and that the case of the appellant was gravely prejudiced by additional evidence having been recorded on the . question of identity in the Chief Court itself. The only course' open to us, therefore, is to eliminate this evidence in dealing with the question whether the identity of the accused has been satisfactorily established. Muhammad Sadik (P. W. 10) is the principal witness for the prosecution on this question. It was on the 28th of February, 1951, that he went to the hotel near Uderolal station on information supplied to him by a spy and secured the accused after recognising him as Khan, son of Muhammad. Muhammad Sadik states that the accused did not protest when he arrested him. This witness prepared a mashirnama at once and got it signed by Rasul Bakhsh (P. W. 11). The Sub?Inspector states that at the time of his arrest the accused did not protest but attempted to run away. When we turn to the testimony of the Mashir we find that it was the Head Constable who told the Mashir that the person that he was arresting was Khan, son of Muhammad Hakro, of Arzi Hakro village. In cross-examination, this witness admitted that the accused said then and there that he was Khan but not son of Muhammad, nor was he Hakro. He said he was Khaskheli. The witness further stated that the accused did not try to run away. It is in evidence that Arzi Hakro is a village consisting of 100 to 150 houses. This Head Constable was posted at Police Station Uderolal ten years before the present occurrence. We are, therefore, in complete agreement with the observations of Constantine, C. J., which show that he was not prepared to attach much importance to the statement of this witness so far as the question of identity is concerned. The only other witness on this question is Abdul Alim (P. W. 7). He was a clerk in the Court of the Resident Magistrate Hala on the 2nd of March 1951, when the accused appeared in that Court. He states that he inquired from the accused his name, father's name, age, caste and place of residence. It is clear from the record that the charge-sheet was produced before this clerk in the Court of the Resident Magistrate Hala on the 2nd of March. In this charge-sheet the accused was described as Khan, son of Muhammad, caste Hakro, resident of Arzi Hakro. Constantine, C. J, was therefore, quite justified in remarking that it might be that this clerk did not wish it to be thought that he had not done what he considered his duty and that he might have taken the essential details from the challan which had been sent up. The witness's testimony is open to another objection also. He states that the diary is signed by the Resident Magistrate. The Resident Magistrate, on the 2nd of March 1951 at Hala, was Mr. Thawardas (P. W. 8). This diary which is signed by the Magistrate was not shown to him when he was in the witness-box, and the Magistrate was not asked whether the accused appeared before him. It was incumbent on the prosecution, when the Magistrate appeared as a witness, to ask him whether it was the accused who gave his name as Khan, son of Muhammad, caste Hakro, or whether the details of the identity of the accused were taken from the challan and a remand was given without questioning him as regards his identity. The evidence of these two witnesses, in our opinion, does not establish that the appellant is Khan, son of Muhammad Hakro, of village Arzi Hakro. The learned judges of the Sind Chief Court would also have arrived at the same conclusion had they not taken into consideration the evidence that was recorded in the appellate Court under section 375 of the Code of Criminal Procedure. This is obvious from the remarks of Constantine, C. J., which have been reproduced in extenso in an earlier part of this judgment. For the reasons given above, we allow this appeal and acquit the appellant. A. H.??????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.