P L D 1954 Federal Court 182 (PLP)

ABDUL RASHID, C. J.

This is an appeal, by special leave, preferred by Punnun, Farida and Humayun, from a decision of the High Court of Judicature at Lahore, dated the 15th February 1952 affirming the judgment of the Sessions Judge, Montgomery, convicting the appellants under sections 302/34 ' of the P. P. C., and sentencing them to transportation for life. Four other persons, namely, Murida, Sikandar, Inayat and Jiwaria, who were jointly tried with the appellants were acquitted by the Sessions Judge. On the 9th May 1950, Qutba (P. W. 3) was present at his threshing-floor which is at a distance of about 100 yards from the threshing-floor of Hetam deceased. Jawaya (P. W. 5) was also present there. Qutba and his brother Hetam deceased left the threshing-floor at about sunset for the village. Hetam was riding a mare and was carrying two bundles of grass. Jahana was also proceeding to the village, but was ahead of the deceased. When Hetam had gone for a distance of about 300 yards, he raised an alarm. Qutba immediately ran to the spot and noticed that seven persons, including the three appellants, were assaulting the deceased with spears and dangs. After Hetam had been killed, Farida and Hamayun accused placed the dead body on the mare and took it away. At that time Jahana, Jawaya and Mst. Alan prosecution witnesses were present on the scene of occurrence. Qutba was himself pursued for a distance of several hundred yards by Murida and Inayat accused, but he escaped. The incident took place at about sunset. The report to the police was made by Qutba at 11-30 p.m., the police station being eight miles from the scene of occurrence. The police arrived at the village at 2-45 a.m. but before their arrival a track party had been organised and this party had noticed some pieces of bones at the Dhari of the accused. From there they followed the foot- prints of six men and one mare. proceeding towards the canal. At the canal they noticed some more pieces of bones. The body of, the deceased had been cut up into small pieces and thrown into the canal. Special leave was given in this case because it was con tended before us at the time that the statements made by Mst. Alan and Jawaya before the Committing Magistrate were not read out in Court at the trial in the presence of the assessors and that no legal order tinder section 288 of the Cr. P C for the transfer of these statements to the record of the Sessions Court was ever made. We have now gone through the record and we find that the statements made by Mst. Alan and Jawaya were transferred to the record of the Sessions Court, and that the provisions of section 288 of the! Cr. P C were substantially complied with in this respect. Mst. Alan in her deposition before the Sessions judge supported the case of the prosecution in all important particulars in her examination-in-chief. When size was cross examined, she stated that she had not identified the accused, and that the seven accused had been falsely implicated at her instance. When she made this allegation, the Public Prose cutor was allowed to cross-examine the witness. The statement made by her before the Committing Magistrate was then brought to her notice and she stated that she did not know whether she had mentioned before the Committing Magistrate that she had falsely implicated he accused. She was then confronted with her previous statement and a notice was made on the record that she had not made any allegation exonerat ing the accused persons before the Committing Magistrate. At the end of her statement, a note was made by the Sessions judge that the statement of the witness made before the Committing Magistrate was transferred to the record of the case and treated as evidence under section 288 of the Cr. P G as it was materially different from her statement made at the trial. The Sessions judge also noted down that the accused had been warned in this respect. The accused were represented by counsel at the trial, and the only meaning that we can attach to the phrase "that the accused had been warned" in this respect is that the counsel of the accused had been told that the statement of Mst. Alan made before the Committing Magistrate shall be treated as evidence in the case. A similar procedure was followed in the case of Jawaya. In these circumstances, we hold that there is no substance in the conten tion of the counsel that the provisions of section 288 had not been complied with, and that the appellants had been preju diced by this alleged irregularity at the trial. The statements of Qutba and Jehana at the trial and the statements of Mst. Alan and Jawaya before the Committing Magistrate, according to the Judges of the High Court, prove the guilt of the appellants beyond all reasonable doubt. In these circumstances, we are not prepared to deal with a number of unimportant discrepancies referred to by the counsel for the appellants. It has been observed by the learned judges that the accused are the first cousins of the deceased, and it is unlikely that they would be falsely implicated by the eye witnesses if the real murderers were some persons entirely unconnected with the family. It was next urged on behalf of the appellants that there, were some mis-statements of fact relating to the corroborative evidence referred to by the learned Judges of the High Court in the concluding portion of their judgment. According to the counsel, the evidence relating to the turban of Punnun appellant and to the shoe of Farida had not been properly appreciated by the learned judges. After an examination of the evidence relating to the recoveries, we find that there is no force in this contention, and the findings of the learned judges regarding the corroborative evidence are amply supported by the material on the record. We find that there has been no abuse of legal processes in the trial of the case and no violation of any principle of natural justice. We, therefore, dismiss this appeal. A. H. Appeal dismissed.