P L D 1959 Supreme Court (Pak (PLP)

S. A. RAHMAN, J.‑

This is an appeal by Nawab Khan from the judgment of the High Court of West Pakistan, Peshawar Bench, by which his acquittal on the charge of murdering one, Hassan Shah, was set aside, and he was convicted and sentenced to death under section 302, P. P. C. The first contention raised by Mr. Manzoor Qadir, on behalf of the appellant, is that the appeal against the acquittal had not been, properly instituted by a competent and duly authorised person, in the High Court. It appears that the appeal was filed under the signatures of Mr. Muhammad Ali who described himself as the Advocate‑General North‑West Frontier Province, in the Court of the Judicial Commissioner, N. W. F. P., on the 19th September 1955. Later, the Judicial Commissioner's Court was integrated into the High Court of West Pakistan. Section 417, Cr. P. C. enacts that "the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court, from an original or appellate order of acquittal, passed by any Court other than a High Court". The order of acquittal was in this case recorded by the Additional Sessions Judge, Peshawar, and the Judicial Commissioner's Court was, undoubtedly, a "High Court" within the meaning of section 219 of the Govern ment of India Act, 1935. The objections raised by Mr. Manzoor Qadir are three‑fold. He contended, firstly, that the Advocate‑General, as such, was not entitled to present an appeal against the acquittal under section 417 of the Code of Criminal Procedure, and that there was nothing to show that he had been vested with the powers of a Public Prosecutor under section 492 of the Code. Secondly, it was urged that in the grounds of appeal. it was not mentioned that the appeal had been filed under the direction of the Provincial Government, as required by section 417 of the Code. Thirdly, it was argued that even if a notification existed, investing the Advocate‑General of the North‑West, Frontier Province, with the powers of a Public Prosecutor for the purpose of section 417 of the Code of Criminal Procedure, it was incumbent on him to specify the capacity in which he was acting in the matter of the appeal. Reliance in this connection was placed on a judgment of the Federal Court reported as Qadir Bux v. Crown (P L D 1955 F C 79). The learned Advocate‑General, West Pakistan, has now produced, for our inspection, a copy of the N. W. F. P. Govern ment Gazette dated the 30th April 1937, which shows that by Notification No. 1002‑LD dated the 23rd April 1937, the Governor of the North‑West Frontier Province had appointed the Advocate‑General of that Province to be Public Prosecutor A for the whole Province, generally, from the date of his appoint ment. In point of fact, therefore the Advocate‑General, North‑West Frontier Province, was armed with the requisite authority, by virtue of this Notification, to act, if so directed by Government, under section 417 if the Code of Criminal Procedure. This would provide a sufficient answer to the first point raised by Mr. Manzoor Qadir. His second objection also appears to be without much sub stance. A certified copy of the endorsements made by the office of the Peshawar Bench of the High Court of West Pakistan, on the memorandum of appeal in this case, has been produced before us, and the document clearly establishes that the necessary copy of the sanction of the Provincial Government, directing the appeal to be filed, had been annexed to the memorandum of appeal, by the Advocate‑General. For his third objection, the learned counsel seeks to derive support from the ruling of the Federal Court cited above. In that case the trial of four persons on a charge of murder had resulted in their acquittal by the trial Judge. The Advocate‑General Sind then preferred an appeal against the acquittal, in the Chief Court of Sind, who reversed the order of acquittal, and convicted the accused under section 302, P. P. C., sentencing each of them to transportation for life. On an appeal by Special leave it was held by the Federal Court that in the absence of any order appointing the Advocate‑General as a Public Prosecutor, the appeal under section 417 Cr. P. C. was not competent and the order of the Chief Court, made in the appeal, reversing the acquittal and replacing it by a conviction, was consequently void. The case is clearly distinguishable on facts from the present case inasmuch as there the Advocate‑General had never been notified as Public Prosecutor. That finding was sufficient to dispose of the appeal in Qadir Bux's case. However, certain observations were made at page 84 of the published judgment on which Mr. Manzoor Qadir strongly relies and which may be repro duced in extenso. "The terms in which sections 492 and 417, Cr. P. C. are expressed leave no room for a relaxed interpretation of the kind suggested on behalf of the respondent. It is quite clear that, having regard to the subject‑matter to which section 417, Cr. P. C. relates as well as to the wording of section 417 Cr. P. C. itself a person presenting an appeal under that section must act as a Public Prosecutor, eo nomine. He may occupy one or more other offices, but the only one of his functions which is relevant for the purpose of filing an appeal against an acquittal is the function of being a Public Prosecutor. In relation to section 492, Cr. P. C., it is even more obvious that no con struction except the eo nomine construction can be permitted, for the section itself speaks of appointment of persons by the Provincial Government "to be called Public Prosecutors." It is entirely correct to say that, in relation to the function under section 417, Cr. P. C., the validity of the act of filing the appeal depends, in the first instance, upon the person who files the appeal being called a Public Prosecutor, in consequence of having been appointed as such by the Provincial Government. The argument raised on behalf of the respondent that the acts of a person pretending to be a Public Prosecutor become the acts of a Public Prosecutor, by the mere performance thereof, is clearly unsustainable. These observations have to be read in the context of the case in which they were made. They had reference to the argu ment advanced before the Federal Court that the definition of "Public Prosecutor" in the Cr. P. C. was not exhaustive, and that a person must, in law, be regarded as a Public Prosecutor "if he answered to the description". It was suggested in that case that any person who was asked by the Provincial Government to perform any legal duties pertaining to the office of Public Prosecutor, became protanto a Public Prosecutor. The remarks quoted must, therefore, be held confined to the contention raised before the Federal Court. Merely because in the present case the learned Advocate‑General of the North‑West Frontier Province, inadvertently, did not describe himself as a Public Prosecutor, though he, in fact, had been notified as such, would not vitiate the appeal, and the objection to its competency would seem to savour of a mere technicality not affecting the substance of the matter. If it had been taken at the appropriate time before the High Court, we have no doubt that the defect, if any, would have been met by a formal amendment of the designation of the person filing the appeal. The fact that the Advocate‑General had the necessary status was not even challenged before the High Court. In these circumstances, the highly technical objec tion raised by Mr. Manzoor Qadir cannot be allowed to prevail, and we proceed to the examination of the case on the merits. The occurrence took place on the 2nd October 1954, at about 4‑15 p.m. in village Doaba. Hassan Shah, the deceased person, was proceeding towards his house, when he was shot at and killed in the village lane, according to the prosecution allegations, by two persons, namely, Nawab Khan petitioner and his father's first cousin, Tar Khan, who was also tried along with Nawab Khan and against whom the acquittal appeal was not pressed before the High Court by the learned Advocate General. The incident was said to have been witnessed by Sadan Shah, P. W. 2, and Awal Shah P. W. 5, who were sitting in an open maiden nearby, as well as by Khial Akbar (who was not examined at the trial) and Nazar Khan P. W. 4, who were following the deceased at a short distance. Nawab Khan it was alleged, had fired two shots at Hassan Shah, after coming out of his house, as soon as the deceased had passed by his door, and the latter fell down. Tar Khan is at this stage said to have gone forward and to have fired at him while he lay on the ground. Both the culprits then re‑entered the house of Nawab Khan. The eye‑witnesses, on coming up to the spot, found that Hassan Shah had expired Saidan Shah at once proceeded to Doaba Police Station which was about a furlong from the spot, and got the F. I. R. recorded, very promptly, at 4‑30 p.m. within a few minutes of the incident, At the same time, Mohsin Khan, P. W. 7, who lives in the vicinity and came out of his house on hearing the report of gunshots, on learning that Hassan Shah had been shot dead by Nawab Khan and Tar Khan, went over to the Levy Post which was also a furlong off from the site of crime, and carried the news to Sarwan, P. W. 8, in‑charge of that Post. Sarwan came up with his men, and surrounded the house of Jalat Khan, a relative of the petitioners, where Nawab Khan is said to have taken shelter in kotha the door of which he had chained from inside. It was from this kotha that the Sub‑Inspector arrested Nawab Khan. During the investigation of the case, a licensed D. B. shot gun was recovered from Mst. Gullo, the wife of the paternal uncle of Nawab Khan accused. Earlier, a bandolier, two empty cartridges and a licence for that very gun, had been produced by Bilal Khan, brother of the petitioner. The licence was in the name of Hassan Khan but Nawab Khan, petitioner was named therein as a retainer. This merely indicated that a gun could have been accessible to the appellant. The motive for the offence, according to the prosecution, was that some twenty years ago, Dur Khan, the grandfather of Nawab Khan petitioner, and the former's brother, Afzal Khan, father of Tar Khan accused, were murdered. Hassan Shah deceased and his brother, Shah Wazir, were prosecuted for these murders, convicted and sentenced to ten years' rigorous imprison ment each. Shah Wazir died in prison. Hassan Shah served out his sentence and, on release, joined the army where he served for about seven years. He had returned to his village some five years prior to the present occurrence. The defence was a plea of false implication due to enmity with the P. Ws. Two witnesses were also examined in defence. The prosecution relied on the direct testimony of Saidan Shah P. W. 2, Nazar Khan P. W. 4 and Awal Shah P. W.

5. They fully supported the prosecution story. The High Court held that Said Shah and Awal Shah were closely related to the deceased, but that Nazar Khan was a distant cousin of the deceased as well as of the petitioner, and there was no reason why full reliance should not be placed ‑on his statement. The learned Judges of the High Court did not agree with the trial Judge's finding that Nazar Khan was related to the deceased through Mst. Zarima the latter's sister, who was married to Payao Khan, father of Nazar Khan, but who apparently died long before Nazar Khan was born. In this connection, reference was made to the statement of Mst. Gulshata P. W. 9, widow of the deceased, who, in her cross‑examination had deposed that Mst. Lagula sister of Payao Khan was the wife of Zarmir brother of Hassan Shah deceased while one, Mst. Zarima, was married to Payao Khan, Nazar Khan's father, though she died issueless about 40 years ago. In the beginning of her cross‑examination, accord ing to the record, she had said that "Mst. Razima" was the sister of the deceased. The learned Judges of the High Court did not accept the identity of this Mst. Razima with Zarima, the wife of Payao Khan. It was suggested by Mr. Manzoor Qadir that there had been a mistake in taking down the name of the deceased's sister as Razima instead of Zarima, and he fortified his argument by the consideration that in the trial Court, the identity of the two women was not questioned. According to learned counsel, this erroneous assumption by the High Court vitiated its estimate of the evidence of Nazar Khan. There is, however, nothing on the record to controvert Nazar Khan's statement that he was also a distant cousin of the petitioner. The medical evidence shows that at least one gunshot had been fired at Hassan Shah, when both the victim and the assailant were standing erect. Two cardboard disks were found in the lane at a short distance from the blood spot where the deceased fell after the firing, close to the house of Nawab Khan petitioner. In all probability, therefore, the assailant or the assailants had come out into the lane to fire at the deceased, and considering the time of the day, they must have been seen by people around. The claim of the P. Ws. consequently that they saw the petitioner shooting at the deceased involves no inherent improbability. The direct evidence led by the prosecution, the evidence with regard to the motive, the prompt report to the police in which the culprits as well as the witnesses had been named, and the circumstance that the petitioner had shut himself up in the house of his relative soon after the incident, taken together, were sufficient to bring the offence of murder home to the petitioner. The defence did not succeed in rebutting the prosecution case. One of the witnesses, Yousaf Khan D. W. 1., asserted that he had seen the shooting of the deceased in the lane but he suggested that the shots had been fired from a maize field without the gunman being seen. He was accompanied by one, Gul Karam. They went up to where the wounded man lay, found him alive but asked him no questions. He belonged to a village some five miles away and, on his own admission, had not talked about the incident to anyone nor had he been produced before the police during the investigation. The second witness, Faqir D. W. 2, stated that he had been ploughing the field of Jalat Khan along with Nawab Khan petitioner, that day, that they had returned at about digar time to the house of Jalat Khan where they were held up by heavy rain, and while they were sitting inside the kotha, the S. I. came and arrested Nawab Khan from there. This witness, too, significantly, was not produced before the investigating officer, as he admitted. The conclusion reached by the High Court after a discussion of this whole evidence was plainly sustainable and on the merits, therefore, no ground exists for a review of that Court's findings. The question raised is essentially one of evaluation of the evidence led in the case. We dismiss the appeal. A. H. Appeal dismissed.