P L D 1962 Baghdad﷓ul﷓Jadid 12 (PLP)

SATJAD AHMED, J.‑The appellant Ranjah has been found guilty for the murder of his mother‑in‑law Mst. Sharaf Elabi and sentenced to transportation for life.

2. The murder took place on the night between the 7th and 8th of December 1960 in the house of the deceased in village Khatan. Mst. Nur Sain P. W. a daughter of the deceased, was married to the appellant some five years back. They lived together in the appel lant's house in village Mangla Naiwala where they were also joined by P. W. Muhammad Hussain, a brother of Mst. Nur Sain, who assisted the appellant in the cultivation of his fields. Two days before the murder of Mst. Sharaf Elahi, Muhammad Hussain and Mst. Nur Sain left the appellant's house in his absence and came over to village Khatan. The appellant followed them the next day and in the evening he asked the deceased to send his wife with him. She replied that he could take her the following morning he appellant considered this as an evasive reply and slapped her. At about 10 p.m. the same night, while the appellant was engaged in a talk with the deceased in her but in the company of Mst. Nur Sain and Muhammad Hussain P. Ws., the appellant again started a quarrel with the deceased and told her that she was not sending his wife with him on purpose as she was anxious to secure her divorce. Mst. Sharaf Elahi rebuked him for this loose talk about the divorce on which the appellant took out his pistol Exh. P. 7 from the fold of his chadar and shot at the deceased, causing her death.

3. The occurrence was reported at Police Station Doonga Boonga, situated at a distance of six miles from the scene of occurrence, at 6 a.m. the next morning, by P. W. Muhammad Hussain. The first information report carefully recounted the whole occurrence. It was claimed that the first informant (Muhammad Hussain) and his sister Mst. Nur Sain were the ocular witnesses. It was further stated that many persons, including Khushi Muhammad and Sher Muhammad, brothers of the deceased, had arrived at the spot and in their presence the deceased had charged the appellant for firing at her.

4. The post‑mortem on the dead body of Mst. Sharaf Elahi conducted by Dr. Choudhri Muhammad Asghar, showed that she had sustained the following injuries : -- (1) A through and through fire‑arm wound below the right elbow‑joint with wound of entry on lateral side and wound of exit on the medial side. The wound of entry was lacerated, circular, with charred margins, " in diameter, and the exit wound was about 1 " in diameter. (2) Through and through fire‑arm wound horizontally at the level of umbilicus with entry on the left side of abdomen and exit on the right side of it. The wound of entry was circular, lacerated, " in diameter, and charred. The exit wound was 1" in diameter and the intestines were injured and protruding out through the exit wound. The doctor stated at the trial that, in his opinion, the two injuries on the person of the deceased could not be caused by one shot but were the result of two shots because both the wounds were charred, indicating separate points of entrance. This evidence directly contradicts the version of the eye‑witnesses that the appellant had fired only one shot at the deceased.

5. On the 12th of December 1960, a country‑made revolver Exh. P. 7 and six cartridges Exhs. P. 8 to P. 13, one of which was dead, were recovered from the person of the appellant. A spent bullet Exh. P. 6 had been recovered from the scene of occurrence which, alongwith the pistol Exh. P. 7, was sent to the Central Forensic Laboratory, Lahore where, after comparison of the crime shell with the test shell fired from the pistol Exh. P.

7. Sheikh Muhammad Din (P. W. 14), Fire‑arms Expert, gave the opinion that the crime shell and the test shell were fired from the same pistol.

6. It appears from the record of the case that the police had tried to rush through the proceedings. The appellant was arrested on the night between the 11th and 12th of December 1960. An incomplete challan was put up before the Magistrate for recording the evidence. The case was adjourned to the 14th at the request of the appellant who wanted to engage a counsel. No counsel appeared on the 14th but the case was postponed to the 15th as the case property was not available. On the 15th, almost the whole of the material evidence from the prosecution side was recorded, consisting of the testimony of the ocular witnesses Muhammad Hussain and Mst. Nur Sain and of P. Ws. Sher Muhammad and Khushi Muhammad who deposed that the deceased had before her expiry charged the appellant for her injuries. They were not cross‑examined by the appellant as he was unrepresented. Some futile hearings took place thereafter, but no effective step was taken for further progress of the case until on the 3rd February 1961, a counsel, who had been engaged for the appellant, moved an application, requesting that the prosecution witnesses whose evidence had already been recorded be recalled for cross‑examination. This application was fixed for arguments and was disposed of on the 6th of February 1961 by a vernacular order which translated reads as follows :‑ "Arguments heard. The counsel for the accused requests that in the interest of justice the P. Ws. whose statements have been recorded should be summoned under section 540, Cr. P. C. Section 540 is not applicable and cannot be made use of. The accused had his opportunity. The evidence should continue and if any deficiency is found, tire Court will itself take action under section 540 of the Criminal Procedure Code." On the 8th of April 1961, the case was transferred to the Court of the Administrative Civil Judge, Bahawalnagar (with magisterial powers) by the Additional District Magistrate, Bahawalnagar for the reason that a lot of work had accumulated in the Court of the first Magistrate. The transferee Court examined the remainder of the prosecution evidence on the 27th of April 1961, but no cross examination of the witnesses was made in his Court also which, as stated in the note at the end of each witness's examination‑in chief, was reserved for the Sessions Court. The administrative Civil Judge duly completed the inquiry and committed the case for Sessions trial.

7. In their statements In the commitment inquiry P. Ws. Muhammad Hussain, Mst. Nur Sain and Khusbi Muhammad directly charged the appellant for the murder of Mst. Sharaf Elahi. At the trial, however, they sought to exonerate the appellant and their statements recorded by the committing Court were transferred to the Sessions record under section 288, Cr. P. C. These trans ferred statements form the main‑stay of the prosecution case and the learned trial Judge has primarily based the appellant's convic tion on the same.

8. It would have been necessary to assess the value of these statements for their effect, in proof of the appellant's guilt, if they did not suffer from an infirmity which gravely hits their value. This lies in the fact that the statements were not subjected to cross‑exa mination as the appellant was unrepresented, at the time when they were recorded, and when the counsel for the appellant did appear to defend the appellant on the 3rd of February 1961 and made a request for the recall of the witnesses, it was turned down.

9. A statement of a witness under the Evidence Act Is not effective and complete unless it is subjected to cross‑examination by the opposite party or unless the opposite party had an opportunity to do so and which it has declined or not availed of. The right of cross‑examination is of particular importance for accused persons in criminal trials involving their life and liberty depending on the verbal statements of the witnesses deposing against them. Equally important is the statutory right of an accused person to be defended by a lawyer of his choice as provid ed in section 340 of the Criminal Procedure Code. In the present case, it can be said that the appellant himself had the opportunity to cross‑examine the prosecution witnesses and if he did not cross‑examine them, whatever be the reason, including his non‑repre sentation by a lawyer, he alone is to blame. But can it also mean that by his default this opportunity was irretrievably lost to him and could not be revived in spite of the engagement by him of a lawyer who before the close of the inquiry made the request that the witnesses be recalled for cross‑examination. We consider that in the matter of cross‑examination of witnesses in criminal trials, the Courts should treat the accused persotis with indulgence and not deprive them of this valuable right on mere technical considerations. Cross‑examination as a weapon gains its practical utility, when an accused person obtains the services of a lawyer believed to have the necessary skill to employ it for testing the worth of the witnesses. It is only then, that the opportunity can really be availed of usefully as a practical measure. In the present case, when the counsel was engaged, the committing Court may unimaginatively disallowed the counsel's request which was not very belatedly to cross‑examine the witnesses with disastrous results for the appellant, as imperfect statements not subjected to cross‑examination were subsequently transferred to the Sessions file and made the basis of his conviction.

10. The right of an accused person to cross‑examine the prosecution witnesses regardless of the stage in the Inquiry at which such right is asserted has been recognised by judicial precedents. In Jyotsna Narh Sikdar v. King Emperor (A I R 1924 Cal. 780) it was held: "that where the application by the accused to cross‑examine the prosecution witnesses was made before the charge was framed and before the committing Magistrate had decided to commit the case to the Court of Session, the Magistrate was bound to allow the accused to cross‑examine the prosecution witnesses and that he had no discretion in the matter." Rankin, C. J., in Khadem and others v. Emperor (A I R 1930 Cal. 706) has observed: "that though a Sessions Judge has discretion to put in deposition (consisting of examination‑in‑chief only) made before the committing Magistrate, that discretion must be carefully exercised."

11. Section 208(2) of the Criminal Procedure Code also postulates the exercise of a right by an accused person to cross examine the prosecution witnesses, before the Court actually determines whether the case should be committed to Sessions or not. If an accused is not represented by a counsel at the time of the recording of such testimoney particularly when due to short notice or other unavoidable circumstances, he is not able to engage any and thus misses his opportunity of effectively cross examining the witnesses, the evidence so recorded should not be sealed against him and the interests of justice require that if subsequently be engages a lawyer for which he has a statutory right, an opportunity may be fresh provided to the counsel to recall the witnesses and to cross‑examine them. We consider that ink the matter of cross‑examination Courts should adopt a liberality of attitude towards accused persons. Certainly there is no prohibition to do so when the interests of justice are not disserved.

12. In the present case, the conviction of the appellant has been recorded essentially on the statements recorded during the commitment Inquiry which were not subjected to cross‑exami nation and an opportunity for the same was withheld when it could have been reasonably afforded. We consider that the statements, therefore, suffer from a very serious defect and we do not feel at ease in accepting them in proof of the appellant's guilt. Statements transferred under section 288, Cr. P. C. do make substantive evidence, but its evidentiary value varies according to the facts and circumstances of each case in which it is sought to be utilised.

13. We feel constrained therefore to quash the commitment of the appellant, being based on defective evidence, and in the result, his conviction has also to be set aside.

14. We have considered the question whether it is a fit case for ordering a fresh commitment and a de novo trial. In view of the fact that the prosecution case primarily depends on the state ments of witnesses who have already perjured themselves and have thus forfeited their confidence, a fresh trial will amount to much ado about nothing. We accept this appeal and direct that the appellant be set at liberty forthwith, if not required in any other case. S. B./A. H. Appeal accepted.