1969 PLP 849 (SCMR)

On the night of 7th/8th December 1948 a gang raided the dera of Syeds in village Deh Katahar near Huzuri Sangi and in that raid two of the Syeds were killed and three others, who appeared as prosecution witnesses sustained very serious injuries; but those three persons in spite of their injuries succeeded in disabling and capturing the appellant who was one of the raiders. His confederates ran away. On the 8th December the appellant made a confession before Huzur First Class Magistrate, Larkana, implicating himself and six others and on the 21st the police challaned him and four out of the six named by him. Next day they challaned another person, Jam, not implicated so far by the appellant. On the 4th January 1949 the appellant was produced before the Additional District Magistrate, Larkana, who tendered him conditional pardon. The appellant accepted the tender and made a statement on oath implicating not only himself and the six others already mentioned in his confession but also Jam, who was challaned on the 22nd December and one Murad. The case ultimately proceeded against five out of the persons implicated by the appellant in his statement to the A. D. M., and the appellant gave evidence against them in the committal enquiry and at the trial; but they were acquitted. The appellant then, on a certificate given by the Public Prosecutor under section 339, Criminal Procedure Code, was proceeded against for the offences in respect of which conditional pardon had been granted to him, and he was convicted and sentenced as stated above. Both in the committal enquiry and at the trial the appellant raised the plea that he had complied with the conditions of his pardon, but the trial Court held that he had not done so on the ground that he had made several false statements and thus failed to make a true and full disclosure of the facts and circumstances within his knowledge. The learned Judges of the Chief Court came to the conclusion that the appellant made only two false statements, and after discussing them recorded the following finding:‑ "We are, therefore, of the opinion that the prosecution has proved that the appellant did not fulfil the condition of his pardon in that he made two false statements after accepting the conditional pardon. These two statements are alternative statements, firstly that his confession was not true or voluntary (as stated in the committal Court on the 22nd July) and that his confession was true and voluntary (as stated in the Sessions Court); secondly that he gave no names of assailants to the Syeds (as stated in the committal Court) and that he gave the names of Mehram, Majnu, Jadu and Khilu to the Syeds (as stated in the Sessions Court)." In his evidence in the committal enquiry in the main case the appellant had stated that he had made his confes sion before the Huzur First Class Magistrate under police pressure: but at the trial he deposed that that confession was voluntary and true and when cross‑examined in that respect he explained that he had stated to the contrary before the Com mitting Magistrate as the accused in that case with whom he was living in the same jail and was being brought to Court had threatened to cause him harm if he spoke the truth. This is the first discrepancy on which the learned Judges have based the above finding. The second discrepancy is this. According to his evidence in the committal enquiry he had not disclosed the names of his confederates to the Syeds when he was captured by them. But his evidence at the trial was to the effect that he mentioned to the Syeds the names of Mehram, Majnu, Jadu and Khilu the first two of whom only were amongst the accused tried in that case. When cross‑examined in respect of this variation the appellant stated that he deposed before the Com mitting Magistrate that he had not disclosed any names to the Bhagias because he had been threatened by the accused. The above finding of the Chief Court indicates that the learned Judges proceeded on the basis that the mere existence of these discrepancies was sufficient for holding that the appellant did not comply with the condition of his pardon, irrespective of his explanation as to why he made the discrepant statements or the importance of those discrepancies. It was rightly contended by appellant's counsel that this view was not correct as the question for determination was whether the appellant made the discrepant statements with the deliberate intention of neutralising the effect of his evidence. Counsel for the Crown argued that the judgment of the Chief Court contains observations that the appellant in making those two discrepancies had the intention aforesaid. There are, no doubt, such observations but they are inferences drawn from the nature of the discrepanies without taking into consideration the context in which they occur and the explanation which the appellant had given in respect of them when he was cross‑examined in the Sessions Court where he appeared as an approver. At his own trial he was not questioned about these discrepancies. The learned Judges while pointing out in their judgment that the appellant should have been so questioned observed that in the circumstances no explana tion was possible consistently with the appellant's obligation to make a full and true disclosure of facts within his knowledge; and as stated already they did not consider the explanation the appellant had given in his evidence. These circumstances consider ed with the language of the finding extracted above justify the contention of the appellant's counsel that the manner, in which the learned Judges dealt with the question, whether condition of pardon was complied with, gravely prejudiced the appellant. We, therefore, examined the evidence of the appellant and his earlier statements in respect of the two discrepancies specified above, and as shall be seen presently, our examination disclosed that the appellant had not failed to discharge the obligation imposed on him by his accepting the pardon tendered to him. The appellant was examined in chief in the committal enquiry on 7th June 1949 when after substantially supporting the version of the prosecution he added that he had made a confession to the Huzur Magistrate and that thereafter he was taken to the A. D. M. who tendered pardon to him and that accepting it he related the true facts in a statement he then made. At that stage those statements to which he had by then referred had only to be read out to him to conclude his examination‑in‑chief; but for reasons not apparent on the record his further examina tion‑in‑chief was reserved and on 22nd July when it was resumed, his earlier statements were read out to him. On hearing his statement made to the A. D. M. he deposed that it was correct; but when his confession recorded by the Huzur First Class Magistrate was read out to him he said that it was not correct but that it had bean made under police pressure. Now, his statement to the A. D. M., the truth of which he had admitted, practically covers and goes beyond what is stated in the confes sion he made to the Huzur Magistrate. That being so, the Committing Magistrate should have at that time asked him for clarification, but he did not do so. His evidence before the Committing Magistrate as it stands at present and read as a whole, neutralises the effect of the allegation made therein that his confession to the Huzur Magistrate was due to police pressure. This aspect of his evidence does not appear to have been noticed by the Sessions Judge before whom he deposed as an approver or the Judge who tried the appellant: nor do the learned Judges of the Chief Court appears to have noticed this fact. The question naturally arises as to why the appellant made the allegation of police pressure at all. As stated already he was not questioned at his trial in this respect, but the explanation which he gave in his evidence in 'the Sessions Court appears to us to be satisfactory and we think that if the learned Judges of the Chief Court had carefully examined the merits of this explanation they might not have drawn a conclusion adverse to the appellant on this point. We have not been shown anything on the record indicating that the appellant was segregated in the jail from his past confederates against whom he was appearing as a witness or that there was no possibility of their having threat ened him. The Sessions Judge before whom the appellant was tried rejected this explanation because no complaint had been made to the jailor, but his having admitted the truth of his statement to the A. D. M. indicates that his explanation was true; otherwise his accepting the truth of that statement while alleging police pressure in respect of the other cannot be satisfac torily explained. It may be that the appellant wanted to satisfy his past‑companions by stating in some connection or other that police pressure was brought to bear on him. If his intention in making this statement had been to spoil the effect of his testimony he would have alleged police pressure in respect of his statement to the A. D. M. also. The Sessions Judge before whom he deposed as an approver had no doubt mentioned this state ment of the appellant as one of the grounds for not relying on his evidence; but that was a conclusion reached without taking the appellant's explanation into consideration The appellant had been caught red‑handed and he must have known that he would be endangering his own neck if he did not comply with the condition on which pardon was given to him. It has not been shown to us that he had any reason to run so grave a risk to save his past confederates. As regards the other discrepancy, the relevant portion of the evidence of the appellant in the Sessions Court is as follows:‑ "Many people came on cries. My companion ran away: Bhagias did not tell those who came on cries nor did they enquire from me. I told them that Mehram, Majnoo, Jadoo and Khiloo had brought me. I did not disclose the names of the remaining accused to the Bhagias." The argument of the appellant's counsel was that the word "them" in the sentence underlined("[Here in italics]) in the above passage does not necessarily refer to Bhagias but could be understood as referring to those who came on the scene hearing the cries. There is no force in this contention as the next sentence is to the effect that the appellant did not disclose the names of the other accused to the Bhagias. Therefore, the reference in this portion of his evidence was obviously to the disclosure made to the Bhagias. This becomes clear when his evidence in the committal enquiry on this point is looked into. There, he deposed that he did not mention the names of the culprits because he had received serious injuries. But as contended by the appellant's counsel the finding of the Chief Court based on this discrepancy cannot be accepted as the learned Judges before drawing an inference adverse to the appellant did not consider the explanation he had given in his evidence as an approver. In his cross‑examination in the Sessions Court he deposed that his statement in the committal enquiry that he had not disclosed any names to the Syeds was due to the same reason as he had given in respect of the first discrepancy; but that was not considered by the Judge before whom the appellant gave the evidence, and as pointed out already the learned Judges of the Chief Court also did not consider it. It does not appear that much importance was attached to this discrepancy before the case came to the Chief Court. In the judgment whereby the appellant was convicted much attention was not paid to this variation in the appellant's evidence, and the certificate given by the Public Prosecutor does not make a specific reference to it. The appellant had thus no information that this discrepancy would be considered against him, nor was he ques tioned about it. The learned Judges noticed this defect, but they observed that the certificate had specifically mentioned the other contradiction and that was a material point on which alone it could be found that the appellant did not comply with the condition of his pardon; and yet they based their finding on this discre pancy also. It is seen from the judgment in the main case that the eye‑witnesses had deposed that they knew the accused except one, that they had identified them in the light of their torch which they flashed, and that the names of those whom they so identified were mentioned to the person, who gave the first information; but the first information report did not contain those names. The held that this was a fatal defect and his conclusion was witnesses did not identify their assailants. No reference is made in this connection to the statement of the appellant, the in, he had mentioned certain names to the Syeds; nor has this dis crepancy been mentioned as one of the grounds for disbelieving him. In these circumstances, the appellant not having been ques tioned in this respect, seems to as to be a fatal defect. Had he been asked about it he might have elucidated his explanation which he stated very briefly in his cross‑examination on this point. In any case we can see no justification for holding that the appellant made this discrepant statement deliberately to weaken the case against his companions. The observations we have made in this connection in respect of the first discrepancy apply here also. In our opinion, therefore, the appellant by making these two discrepant statements did not fail to comply with the condition of his pardon. It was rather unfortunate that the appellant who had been caught red‑handed was made an approver; but whey, once a conditional pardon is granted there should be good faith on both sides. It was for the prosecution to prove that the condition of his pardon was not complied with by the appellant, This burden was not discharged and it has not been shown that the appellant acted with bad faith. In view of our conclusion that the appellant had not forfeited his pardon it was not necessary to consider the merits of the case. We, therefore, allowed the appeal and acquitted the appellant. Appeal accepted.