1969 PLP 471 (SCMR)

At the trial there were five accused persons and three others were stated to be absconding. The charges of murder were in respect of the deaths of two persons namely Mst. Feroze Bi, who was said to have been injured by a rifle shot fired by Shah Nawaz, and Ghulam Ali who was injured by a similar shot fired by Khan Zaman. One other person named Mst. Begum received a wound, from a shot allegedly fired by an absconder Anwar Khan. The trial Court acquitted two accused persons who were said to have been armed with lathis. The remaining accused persons, Adalat Khan, who was said to have carried a gun was. acquitted on appeal by the High Court. The principal grounds on which leave to appeal was given relate to certain proceedings. taken in the High Court at the appellate stage. It will be con venient first to deal with these grounds in which, after examina tion of the record with the assistance of counsel, we do not find: any force. The relevant facts are as follows. Shah Nawaz when question ed as an accused person by the committing Magistrate did not make a, detailed statement, but, said that his evidence given as. a witness in the case which he himself had brought against the members of the opposite‑party should be read as his statement in the case. It does not appear that his statement was read out in Court at that stage. The omission may perhaps not have possessed great importance at that stage, but when at the trial,, he was allowed merely to confirm the statement which he had made in the committing Court, without stating his version in detail, and when his statement in the other proceedings was not read out in Court, in the presence of the assessors, although use was made of it in the judgment, and presumably the arguments. as well, there was an irregularity of a serious nature, which was noticed by the learned Judges in the High Court. It was also brought to their notice that in a complex cases involving a number of separate charges, the assssors had not been questioned: in detail on each point which arose for their determination. This objection was also accepted by the High Court and the following order was made :‑ "We are, therefore, constrained to set aside the convictions and sentences in this case and direct the learned Sessions Judge to resume the hearing of the case from the stage where the first irregularity was committed. He will recall all the four assessors, read to Shah Nawaz, appellant, his statement before the Committing Magistrate as a prosecution witness in the cross case, ask him whether he made that statement, place that statement on record, re‑hear arguments, take the assessors" opinion on each charge and then write a fresh judgment. If he comes to the same conclusions as he did in the judgment under appeal he need not write an entirely different judgment and the judgment under appeal may be re‑written with such modifications as he may consider necessary in the light of the proceedings taken." The Sessions Judge took proceedings as directed. At the conclusion of Shah Nawaz's statement, a request was made for permission to produce defence evidence. The High Court order which the Sessions Judge was carrying out did not permit such a proceeding, and it is necessary to note also that on two several occasions, at the conclusion of the original trial, Shah Nawa7 in common with the other accused persons had declared that he would produce no defence evidence. Accordingly the Sessions Judge refused the request and went on, as directed. to complete the proceedings, convicting and sentencing the accused persons Shah Nawaz, Khan Zaman and Adalat Khan as before. When the case again came up before the High Court, objec tion was raised to the judgment of the Sessions Judge on the ground that he had refused to the accused person; a legal right viz. that of producing defence evidence at the retrial. The learned Judges in the High Court did not think that this conten tion was tenable, but in the interests of justice, in exercise of powers under sections 428 and 375, Cr. P. C., they directed summons to issue to seven persons named by the appellant's counsel, for examination in the High Court, and later, three of these persons were actually examined and a fourth was permitted to produce a medico‑legal register. Thereafter, at the instance of counsel for the appellants, the learned Judges inspected the scene of the occurrence at Bhuchal Khurd in the Jhelum District, and re corded an inspection note which is printed at No. 71 in the paper book. This note is concerned largely with questions of topography, e.g. the possibility of certain bullet marks having been produced through shots fired by a person standing at a specified place, or by a person kneeling or lying down at another specified place. The last paragraph in the note dials with the positions of two alleged eye‑witnesses as indicated in a map produced in the case. 3t reads as follows "The places indicated on the map as those where Dost Muhammad and Sher were standing are not visible from the baithak if measurements are taken according to scale. The investing sting officer, however, states that the places indicated on the map are wrong and that the witnesses pointed out places somewhat to the east, wherefrom Bahalur Khan's baithak is visible." Two objections were taken in relation to these proceedings. First ly it was said that there was a denial of justice by the refusal of the Sessions Judge to examine defence witnesses at the re trial, and this was not remedied by the action subsequently taken in the High Court. The accused persons were entitled to produce their evidence in the presence of the assessors and this could not be done in the High Court. Secondly, with reference to the passage reproduced above from the inspection note, it was urged that a statement by the investigating officer on the spot is incorporated there, which was not recorded on oath, and which ‑the defence were given no opportunity of testing by cross‑examina tion. We entertain no doubt that the view of the learned Judges that the order for re‑trial did not in law entail the granting of a fresh opportunity for producing defence evidence was entirely correct. Indeed, the wording of the order clearly shows that it was for a limited purpose, and this is apparent also from the nature of the objections taken on behalf of the appellants at the hearing of the first appeal. That limited purpose was to rectify two important omissions, neither of which effected either of the parties and both of which affected only the assessors. For there can be no doubt that Shah Nawaz was aware of the statement which he had himself made in the cross case, in all its details, and that a similar advantage was enjoyed by the Public Prosecu tor, acting for the Crown. The fact that the statement was, available to the Judge clearly appears from the use which he made of it in the judgment first recorded by him. Only the assessors were left in ignorance of the statement made by Shah Nawaz upon which he relied for his defence. It was necessary that it should be read in open Court for their information, and that their opinions should be recorded afresh after they had had an opportunity to appreciate the case in the light of Shah Nawaz's &tailed statement. The second objection obviously affected only the assessors, namely that their opinions had not been obtained in detail in respect of each charge. Both these omissions were made good in consequence of the specific order of the High Court. A fresh right to produce defence evidence could only' have been claimed if any fresh material or a new or altere4 case had been placed before the Court on behalf of the prosecution in consequence of the appellate order of the High Court. That not being the case, it seems to us to be clear that the claim to produce defence evidence was not founded on any legal right,, since full opportunity had been allowed to the accused person; to state and support their case at the first trial. The order for re‑trial was made on grounds affecting only the right of the, assessors to hear all evidence in the case and state their opinions, in respect of each matter on which the parties were at issue. The making of such an order did not entail an extension of the, accused persons' rights in respect of producing evidence in support of their pleas. As regards the second objection, it is clear that the inspection note incorporates a statement by the investigating officer which was not made on oath and which the defence could not test by cross‑examination, but after examining the record and hearing counsel for the appellant on the point, we are satisfied that no prejudice of any kind was occasioned thereby. To elucidate the point it is necessary to refer to certain evidence on the record regarding the plan Exh. P. N. This was made by a witness Faza1 Haq (P. W. 13) on the 4th March 1952, more than a month after the occurrence. He stated that he had made it "at the instance of the police and on the pointing out of the witnesses", and took responsibility for everything contained in the map except certain notes in red ink which formed the legend. This statement is falsified by the evidence of the Investigating Officer S. I. Ghulam Ali (P. W. 21), in respect of two dots under point No. 9 on the plan which indicate the places from which the alleged eye‑witnesses Dost Muhammad and Sher Ali saw the occurrence. The investigat ing officer stated that these dots were made on the plan by him, though he did not say at what stage of the investigation he made them. They could have been made at any time prior to the presentation of the plan in a Court. The difficulty arises from a further statement made by S. I. Ghulam Ali namely that he had verified by actual experiment that a person standing at point No. 9 could see the occurrence. This statement is falsified by the evidence given in the High Court by the Inspector of Police Khan Sher Muhammad who "verifi ed" the investigation. He made it clear that persons standing on the spots indicated by the two dots under No. 9 could not have seen the occurrence because the baithak belonging to Subedar Zaman would obstruct their view. In order to be able to see the occurrence, one of these persons would have to move six feet and the other a distance of ten feet. The plan was drawn to a scale of forty feet to the inch, and such an error was clearly possible by a small misplacement of the dots such as might readily have occurred if they were made by the investigating officer, not immediately after verification on the spot, but at some subsequent time, perhaps in his own office. Consequently, it appears to us that there was ample material on the record even prior to the recording of the inspection note in this case on the basis of which it became clear that the evidence afforded by the plan was not of a nature such as to falsify the evidence of the eye‑witnesses. As regards the liability of Shah Nawaz, it is sufficient to say that he admitted having fired the shots as a result of which, a person or persons belonging to the opposite‑party received injuries, some of them fatal. The version he put forward might at the best have sustained a plea of grave and sudden provocation by a wanton attack upon himself and the shooting of his compa nion Nur Muhammad, in an incident which, according to him, preceded the subsequent exchange of rifle shots. The prosecution case which was accepted by the High Court was that the first incident was of a minor nature in which Shah Nawaz sustained a few slight injuries through stones thrown at him by a member of the complainants' party, and that he thereafter collected his men and levied an attack with rifles on the opposite‑party in the course of which there was an exchange of gun fire. This was followed by a lull, and it was when members of the complainant party were gathered in their own baithak that Shah Nawaz and Khan Zaman from a position of vantage on a neighbouring roof fired at them causing fatal injuries to two persons. Shah Nawaz's own version was unsupported by evidence, and in any case, in view of the lull mentioned above, his action in shooting at unarmed and unresisting persons cannot possibly be covered by the plea of grave and sudden provocation. The appeal fails and we hereby dismiss it. Appeal dismissed.