P L D 1955 Federal Court 378 (PLP)

CORNELIUS, J.‑This is an appeal by special leave, and is preferred by one Khuda Bakhsh who stands convicted under section 302, P. P. C. and sentenced to death for the murder of one Mst. Sakina. He was tried along with one Sohrab, his first cousin, who was also step‑brother to Mst. Sakina. The motive found is that Khuda Bakhsh's sister having been married to Sohrab, the latter had wished that his step‑sister Mst. Sakina should be married to Khuda Bakhsh in return, but his wishes were over‑ruled and Mst. Sakina was married to Ghulam Muhammad. As regards the attack it has been found that on‑ the night of the 2nd August, 1952, Ghulam Muhammad and Mst. Sakina were sleeping on the same bed when at about midnight, Sohrab with a hatchet and Khuda Bakhsh with ,a kehi appeared and gave blow after blow to Mst. Sakina. Ghulam Muhammad jumped out of bed and stood on one side. He was not molested. When the assailants had gone, he raised an alarm. From amongst those who answered his call only one, namely. Allah Bakhsh who lives in the immediate vicinity, was examined as an eye‑witness. A third witness Khairan stated that when going to the spot, on hearing the alarm he saw the two accused persons running away, of whom Sohrab was holding a hatchet. The police report was lodged by Ghulam Muhammad at the thana, 13 miles away, ten hours later. Some time had been taken in communicating with Mst. Sakina's relatives who lived in a village two miles away. Sohrab was arrested on the Sth August, and Khuda Bakhsh on the 6th August, 1952. On the 9th August, 1952, Khuda Bakhsh was produced before a Magistrate, who cautioned him, and duly questioned him to ascertain that he was not speaking under pressure of any kind. Khuda Bakhsh made a detailed statement of the circumstances in which his claim to the hand of Mst. Sakina was over‑ruled and she was married to Ghulam Muhammad. On the night in question, he had gone to Ghulam Muhammad's house to speak about a turn of canal water, and when he called to Ghulam Muhammad, the latter asked him to come inside and doing so he saw Ghulam Muhammad and Mst. Sakina lying together on the same bed. Feeling sure that Ghulam Muhammad had done this . only to annoy him, he was enraged and gave blows to Mst. Sakina with the kehi which he had in his hand. Then leaving the kehi on the spot, he went to the thana, but finding the thanedar was away, he turned back, and eventually returned to the village. He denied that Sohrab had had any hand in the affair. That was the main evidence for the prosecution. The trial Court believed the evidence of the three witnesses, but did not attach much weight to the confession. In the High Court Ghulam Muhammad's evidence was fully believed. As regards Allah Bakhsh, the learned Judges mentioned certain matters which placed the possibility of his presence on the spot during the attack in doubt, but thought that he could be fully relied upon when he deposed that he saw the two assailants running away from the spot. Khairan's evidence was accepted in full by the High Court. As regards the confession, the learned Judges thought that it could be relied upon to the extent that it implicated Khuda Bakhsh. They did not believe it in so far as it exonerated Sohrab. Four witnesses were examined in defence of whom only two namely Haq Nawaz Sanghi (D. W. 2) and Allah Wasaya Chaukidar (D. W. 3) need be mentioned. These persons said that, going to the spot in the early morning, they met Ghulam Muhammad, who told them that his wife had been murdered in his absence. The courts below disbelieved this evidence, and as an argument hays been built on the reasons for this disbelief, it is necessary to state them briefly. The trial Court's reasons were firstly that these witnesses did not make such statements during the investigation, secondly their statements appeared to be an after‑thought and thirdly that at the time mentioned by the witnesses for their encounter with Ghulam Muhammad the latter had already left for the thana. The High Court dealt with this evidence more summarily. Stating that the trial Judge had given "good reasons" for disbelieving it, the learned Judges selected for mention the following, viz:‑ "One of the most cogent of these reasons being that if the witnesses are speaking the truth, their natural course was to make statements to the police at the earliest oppor tunity, which they failed to do." Mr. Sleem, for the appellant, , derived assistance from the record in criticising this treatment of the defence testimony. The investigating officer had said that these witnesses were present on the spot when he arrived, and that he recorded their statements. What they said to the police was, of course, entirely irrelevant, through the application of section 162, Cr. P. C. as they had testified for the defence: The trial Judge's statement that they came to the spot during the day is contrary to their own statements as well as to that of Ghulam Hussain (P. W. 5), maternal uncle of the deceased. Yet it has to be mentioned .that, in the course of an unusually lengthy cross‑examination, Ghulam Muhammad was never asked whether, at the earliest occasion, he had denied being an eye‑witness to the murder. Mr. Sleem argued that if Haq Nawaz Sanghi and Allah Wasaya Chaukidar were believed, being disinterested, the evidence of Ghulam Muhammad should be eliminated and the guilt of the accused should be re‑assessed. He stressed that Ghulam Muhammad's presence at the time of murder was rendered improbable by his alleged conduct in standing aside while his wife was being killed, and his late departure for the thana. These arguments have been mentioned in some detail not for the purpose of reviewing the evidence, but because the present appeal is typical of a class of cases in which counsel attempt to induce this Court to constitute itself into a second Court of appeal in criminal matters. It is desirable that we should repeat that this Court does not sit as a Court of criminal appeal, and it is a matter of deep concern to us, as well as to the system of administration of criminal justice in the country, that we should not allow ourselves to be converted into a Court of appeal. While on the one hand, we possess the power which until 1950 was exercised by His Majesty, acting on the advice of Privy Council, to review any and all proceedings of a criminal nature we have, on the other, consistently followed in this respect, certain principles laid down in a series of authorities by the Privy Council, which restrict our interference to cases of the most serious nature, involving what may be described com pendiously as substantial and grave injustice, consequence upon the disregard of the forms of legal process, or violation of principles of natural justice. An authoritative statement supported by reported cases from the Privy Council, will be found in the judgment of Sir Abdur Rahman, J.; in the case of Sarfaraz Ali Khan (PLD1951FC41) and the attitude of the Court in this behalf Was further explained in the judgment of Muhammad Munir, J. (as he then was) in the case of Dilawar (PLD1952FC108). Applying these principles, it is clear that, even if our view regarding the evidence were at variance with those of the Courts below, the present is not a proper case in which we would exercise our special Jurisdiction to interfere in criminal cases. The treatment by the Courts below of the evidence of Ghulam Muhammad was not in ignorance of the points of criticism advanced before us,, and in our opinion also that criticism does not avail to invest his testimony with doubt. Justification for criticising the treatment of the evidence of the defence witnesses of Haq Nawaz Sanghi and Allah Wasaya Chaukidar appears, but in relation to the evidence, which was clearly of an indirect nature, the principal question was whether it could be . believed. A suffi cient ground for disbelieve was mentioned in the judgment of the trial Judge, namely, that what the witnesses said seemed to be an afterthought and did not carry any guarantee of truth. Having seen and heard the witnesses, the trial Judge was in a specially advantageous position to form an opinion regarding their truthfulness and the acceptability of their story. It is impossible to deny that when the evidence of these witnesses is read .in relation to all the facts established otherwise on the record, it conveys a distinct impression of artificiality. It remains to deal with an argument of a technical nature relating to the charge for which the two men were tried. It was charged against them, by the committing Court that they had in pursuance of a common intention, caused the "inten tional death" of Mst. Sakina, and. thereby committed an offence punishable under section 302/4, P. P. C. This charge appeared to the Sessions Judge at the commencement of the trial "to be not only confused but also wrong from the legal point of view." It' is unnecessary to state the grounds of this opinion; it will be sufficient to say .that they are subsequently inaccurate. The operative order which followed was as below:‑ "I proceed to amend the charge and the amendment would be that I would strike off section 34 P. P. C. from the charge‑sheet and both the accused persons would now stand l charged under section 302 P. P. C. as principal offenders." The effect therefore was only to eliminate mention of section 34 from the charge. The ingredients upon which the application of section 34 depended, namely, a single act done by the two men, in pursuance of a common intention, were still embodied in the charge. In the result,, the trial Judge convicted each of the accused persons under section 302, P. P. C. On the basis of what was thought to have been affected by the amendment of the charge; the learned Judges in the High Court proceeded to assess the liability of each of the accused persons, as if it were an independent liability, and having on the facts come to the conclusion that Sohrab was only responsible for certain injuries which were of a compar atively minor nature, they altered his conviction to section 324 , P. P. C. and awarded him a sentence of eighteen months rigorous imprisonment. Stress was laid on the resulting disparity in the treatment accorded to the two accused persons, and an attempt was made to show that there were grounds for doubting the direct testimony regarding the particular injuries which each assai lant had caused. The fact however is that the amendment made by the trial Judge did not in any way affect the nature of the charge which the accused persons were called, upon to answer. The case was clearly one in which, if it could be believed that the accused persons, at the dead of night, being animated by a single motive, had come to the bed of Mst. Sakina and with their respective sharp‑edged weapons had given her blow after blow on the head and neck so that she died on the spot, no doubt could be entertained that her killing was a single act performed by these persons, with a common intention. The rule of constructive liability which is set out in section '34 P. P. C. was directly applicable, and nothing in .the charge read out to the accused persons at the commencement of they trial stood in the way of its application. In consequence oft misconception on this point, Sohrab appears to have received', unduly lenient treatment, at the hands of the High Court but that is a point with which this Court is not concerned. We are satisfied with respect to the appellant Khuda Bakhsh that he was in no way prejudiced by anything appear ing in the charge which he was called upon to answer,, and that his conviction for murder has been duly reached in a manner which does not call for interference by this Court in the exercise of its criminal jurisdiction. We accordingly dismiss this appeal. A. H. Appeal dismissed.