P L D 1955 Federal Court 132 (PLP)

AKRAM, J.‑This appeal by our special leave, is from a judgment of the Chief Court of Sind whereby the conviction and the sentence of death passed on the appellant by the Additional Sessions Judge of Nawabshah for the murder of one Kabil was confirmed. and his appeal was dismissed. Broadly speaking, the case for the prosecution was that there existed a long‑standing feud between two tribes, Mangsi and Daheri ; that the appellant was a Mangsi and the deceased n Daheri ; that latterly there also arose some personal cause of animositry, in addition to the existing tribal hostility, on account of the deceased Kabil having given evidence against the appellant and one Allah Bakhsh (absconder) in a proceeding under section 110 Cr. P. ,C.; that a few days before the occurrence the appellant had threatened Kabil and thereafter on the night of the 17th December 1949 had come to his house accompanied by Allah Bakhsh aforesaid and fired his gun killing Kabil on the spot. The defence was that the appellant was not present at the place of occurrence at the relevant time and was falsely implicated owing to the old enmity. Leave to appeal was granted by this Court on the allegation that the appellant was examined under section 342 Cr. P. C. after oath was administered to him, that the provisions of section 342, Cr. P. C. were not sufficiently complied with and that the defence counsel had wrongly stated to the Court that the appellant did not want to examine any witness although the appellant was anxious to examine some defence witnesses on his behalf. None of the above grounds, however appears to have been urged at the hearing of the appeal in the Chief Court. I have looked into the record and I am satisfied that there is no basis for the allegations set out above. They seem to me to be imaginary grievances and mere after‑thoughts. A further ground not mentioned in the order for leave to appeal was also urged before us. It was to the effect that under section 289 (4), C r. P. C. after the Prosecutor sums up his case and the Court considers that there is evidence" against the accused, the Court should call on the accused not merely to enter on his defence but should further ask him in the same manner as in section 289 (1) "whether he means to adduce evidence" This interpretation of section 289, clause (4), however, does not appear to me to be a sound one. The expression "shall call on the accused to enter on his defence" does not in my judg?ment imply that the accused should be asked once again whether he intended to adduce evidence in spite of the fact that he had stated that he would not do so when questioned under section 289 (1) at an earlier stage. Inl Bechu La Kayastha v. Injured Lady A I R 1927 Cal. 250 Rankin J., who afterwards became a member of the Judicial Committee of the Privy Council, observed that "in subsection (4) the Code says that the Court shall call on the accused to enter on his defence' and the context shows what this means. It seems that if he calls no witnesses the accused (or his pleader) is to make his final address to the Jury : if he is calling witnesses he may open his case and proceed to call them". Similarly in Emperor v. Sheonuth Ram and another A I R 1948 Pat. 291 the view was expressed that "clause (4) of section 289 does not mean anything else except this that if the accused calls no witness, he or his pleader is to make his final address to the Court"; to the same effect is the opinion held in Thoppa v. Emperor A I R 1936 Mad.

82. It appears that there never has been any divergence of Judicial opinion upon the point I find there is no substance in the appellants contention and, it accordingly must fail. The real question seems to be merely one of identity of the assailant, to which the answer depends solely upon the estimate and appreciation of the evidence in the case. 1 here is the evidence of the eye‑witnesses (P. W. 1) Khuda Bakhsh, brother, and (P.W. 2) Abdul Wahid, son of the deceased, who deposed to having recognized the appellant in the light of the lantern which was burning in the house. There is also the corroborative evidence of Shah Din (P.W 6) who had seen the appellant going armed with a gun along with his companion Allah Bakhsh, near the place of occurrence shortly before the murder. Furthermore there is the identi?fication by Muhammad (P. W. 10) of the footprints found in the courtyard of the deceased as those of the appellant. The above evidence has been properly sifted and scrutinised by the Courts below which have come to a concurrent finding as regards the guilt of the appellant under section 302, P. P. C. agreeing with the unanimous opinion of the Accessors. No miscarriage of justice or violation of any principle of law or procedure appears to me to have taken place in the case. I would therefore dismiss the appeal. SHAHABUDDIN, J.‑‑I agree that this appeal should be dismissed. The allegations, for an examination of which special leave was granted in this case are : (1) that in contravention of section 342 of the Cr. P. C. oath was administered to the appellant when he was examined under that section, (2) that when he was so examined all the circumstances appearing against him in evidence were not put to him and (3) that his witnesses were not examined, and the statement of his advocate that there was no defence evidence, did not bind him. In stressing the last point, the counsel for the appellant argued before us that the accused, after the evidence of the prosecution was closed, was not asked as required under section 289 (1) if he meant to adduce evidence and that he should have been asked again the same question under section 289 (4). In my opinion, there is no substance in these contentions. That no oath was administered to the appellant is clear from the original of his statement, which we have looked into. The words in his statement in the printed record "I do hereby on solemn affirmation state" are obviously an error. All the circumstances appearing in evidence against him were not specifically put to him, but the case for the prosecu?tion rests mainly on the evidence of the eye‑witnesses and he was questioned after that evidence was given. He was asked as to what he had to say about that evidence. There was no reason to doubt the testimony of the eye‑witnesses or to take the view that their evidence was such as to need corroboration. That being so, omission to put the other circumstances to the appellant can hardly be said to have caused prejudice, especially in view of the statement the appellant made before the Committing Magistrate and the Sessions Judge. To the Committing Magistrate he stated that the case was false, that he had gone to his uncle, that there was enmity between him and the deceased and that others, who were related to the complainant and the witness were also inimical to him. At the trial he elaborated this statement by giving the particulars of his journey to the village of his uncle. In effect, his version was that he was not in the village of occurrence when it took place, but that he had gone to Shahdadkote. The Sessions Judge should have questioned the appellant regarding the circumstances other than those appearing in the evidence of the eye?witnesses; but having regard to the evidence of the eye?witnesses which by itself is sufficient to sustain the conviction. I am satisfied that the breach of section 342 did not occasion miscarriage of justice. It is true that the appellant was not asked as required under section 289 ( 1), if he meant to adduce evidence, but the record shows that the question, which should have been put to the appellant under this provision of law, was put to hi 4 advocate. The note made by the Judge in this respect is to the effect that the appellant's Advocate was called upo to enter on his defence. What was apparently meant b this was that the Advocate was asked to state, if the accused had any witnesses to examine. Similarly the reply of the B Advocate. "No defence" obviously means that the accused did not mean to adduce evidence. It can not be that this question and answer referred arguments, for, the appellant's pleader did argue the case. By `no defence' therefore only non evidence' was meant. However the accused not having been questioned in this regard is an irregularity, but we have not been shown how the appellant was prejudiced by the question, which should have been put to him, having been put to his Advocate. There is no reason to think that his Advocate in stating that he had no witnesses to examine acted contrary to the instructions given by the appellant. There is nothing on record to show that the appellant's Advocate acted contrary to the appellant's wishes or directions. During the hearing of this appeal an affidavit sworn by the appellant himself was placed before us and even in this belated affidavit it is not alleged that his Advocate acted against the appellant's instructions. The appellant was present in Court during the trial and he must have seen that none of his witnesses, was called in. If he was desirous of examining his witnesses and his Advocate had, contrary to his directions, said that he would not, the appellant himself would have requested the Court to allow him to examine his witnesses. It is significant that this point was not raised before the Chief Court. I have no doubt whatever that the appellant did not wish to adduce evidence. The argument of the appellant's counsel based on section 289 (4) was that `enter on his defence' in that sub?section means examining witnesses and submitting arguments. He referred to section 290 in this connection. A consideration of the language of sections 289 and 190 makes it clear that there is no merit in this argument. Under section 289 (1) the Court has to ask the accused to state if he means to adduce evidence and the stage at which that question has to be put is when the evidence for the prosecu?tion and the examination of the accused under section 342 are over. Thereafter the section proceeds to provide for two contingencies, (i) where the accused says he does not wish to adduce evidence, and (2) where he says that he means to adduce evidence. In either of these cases the Court can call upon the accused to enter on his defence only when it considers that there is evidence that he has committed the offence. If it thinks that there is no such evidence it may in a case triable with the aid of accessors record a finding of not guilty and in cases triable by jury direct the jury to return a verdict of not guilty, notwithstanding the accused having said that he means to adduce evidence. If on the other hand the Court considers that there is evidence that the accused committed the offence then it has naturally to hear what the accused has to say. It is therefore required under section 289 (4) to ask the accused to enter on his defence, but there is nothing in that subsection requiring the Court while so directing the accused to ascertain from him if he means to adduce evidence. On the other hand the words in the subsection 'on his saying that he does not mean to adduce, evidence, indicate that the accused should be called on to enter on his defence after he has made the statement about his adducing evidence and that statement obviously is the one he has to make in answer to p, the question put under section 289 (1). If that answer was in the negative then the only right the accused has is that of a final address to the Court by himself or his pleader. As for section 290 it, like section 289, makes provision for both the contingencies stated above. The first sentence of the section applies where the accused has started that he has no witnesses to examine. The second sentence comes into play when the accused has stated that he means to adduce evidence. Under this section there is no duty cast on the) Court to ask the accused if he means to adduce evidence. That has to be done only under section 289 (1). There is therefore no reason for this Court to interfere. CORNELIUS, J.‑I agree that this appeal should be dismissed. While it is true that the appellant Lalan was not asked either by the Committing Magistrate or by the Sessions Judge to explain any of the matters appearing against him. It becomes clear from an analysis of the evidence adduced for the prosecution that no prejudice of any kind has resulted. The deceased Kabil had given evidence against the accused and his alleged companion Allah Bakhsh in a case under section 110 Cr. P. C. in the month of June 1949, Shortly before the murder Kabil had complained to certain persons that he was being threatened with death by Lalan and Allah Bakhsh because he had given evidence against them. The murder was committed at about midnight between the 17th and 18th December 1949, in Kabil's habitation, and was allegedly witnessed by?????????? two persons namely, his brother Khuda Buksh and his son Abdul Wahid who were sleeping at short distances from Kabil's cot. First Lalan fired and then Allah Bakhsh fired, and both shots hit Kabil as seems to be confirmed by the fact that a bullet pierced his head passing through the eye and that a pattern of pellets was found in the region of his right arm and chest, resulting from a shot, fired from close quarters. That a third shot was fired, as stated by witnesses, appears to be confirmed by the discovery of a firmed cartridge outside the habitation, in addition to two such cartridges found near the place where Kabil was killed. This circum?stance makes it easy to believe that the others who were sleeping in the vicinity were awakened in time to see the shooting. Their evidence that a lamp was burning close to Kabil is rendered easy of acceptance by the high degree of accuracy achieved with the first shot which passed through Kabil's right eye. Supporting evidence was of two kinds. . Firstly there was? proof that two sets of footprints were tracked from the spot to a distance of about four miles. After the arrest of Lalan on ?????? the 21st December 1949, the tracker picked out Lalan's footprints as corresponding with?????????? one of the two sets seen on the spot after the occurrence. Secondly one Shadi declared ??? that he saw Lalan and Allah Bakhsh both armed with guns at a distance of about two furlongs from the scene of the crime ????? and spoke to them, the same night, and shortly after, he heard three shots, as well as cries from the direction of the spot and, going there, learnt of the murder. It is to be noted that Abdul Wahid stated that Shadi came to the spot in response to his cries. On? each of the two occasions when he was examined Lalan was merely asked what he had to say with reference to the evidence of the prosecution witnesses which he had heard.? On each occasion he declared that the case was based on enmity and that he was on his way to a place called Shahdadkote at the time of the occurrence. The argument is raised that accused was prejudiced in his defence because he was not questioned particularly regarding the matters on which?? the prosecution case was based, namely the threat of murder, the ocular evidence ,regarding the actual murder, the encounter with Shadi, and the correspondence of foot? prints. The foundation of the whole case being the direct evidence of Khuda Bakhsh and Abdul Wahid, whose statements were supported by various concrete circumstances, the ???????? necessity for corroboration by outside circumstances does not appear. The learned Judges??? of the Courts below have mentioned the track test in support of their conclusion that Lalan was one of the murderers,?????? but it is evident that primary reliance for coming, to this conclusion would not be, and was not?????? placed upon this circumstance. They have also mentioned the evidence of Shadi, but this man's statement, if regarded independently of the ocular evidence, would be clearly insufficient foundation for concluding that ,the shots which he heard were indeed fired by the two persons he had seen. The learned Judges of the Chief Court noted that Shadi was a tenant of certain persons who were inimical toward Lalan. Another circumstance of doubt appears from the fact that in i the first information report, there is no mention of his name or his story. As regards the threats allegedly held out to Kabil, if, any reliance, were placed upon them for holding Lalan to be the murderer, there is no doubt that he should have been given an opportunity to explain the evidence adduced against him on the point. The fact in question was a conver?sation which passed between himself and the deceased. Just as a confession by the accused person must be put to him in his examination at the trial to have weight against him, should it be found in the eventual analysis that there is no other evidence to connect him with the crime, so in the case of such threats, if these be the only proof of motive, the element of motive cannot be held to have been established unless an opportunity of explaining the threats is allowed to the accused persons. But here other evidence to show enmity sufficiently powerful to lead to murder is available, and in any case proof of motive is not requisite if direct evidence of the crime is available. Neither the track evidence nor the evidence of Shadi is in any sense necessary to complete the prosecution case for murder against Lalan. In this view of the matter it is clear that the omission to question the accused regarding these matters has been without the slightest effect upon the course of justice in this case. The second point upon which stress was laid in the order granting special leave to appeal is that the accused's statement was recorded on solemn affirmation, thus violating a mandatory provision contained in the same section i.e., section 342 Cr. P. C. On reference to the original record, which was made available at the hearing, it became clear that the contention lacked foundation. The reference to solemn affirmation is a misprint in the paper book of the Sind Chief Court, and in fact no oath or solemn affirmation was administered to the accused. The third point mentioned in the admitting order has reference to the non‑examination of witnesses in defence, who were present at the trial, on the basis of a statement made by the accused's counsel. Mr. Mahmud Ali appearing for the appellant contended that there had been a violation of a clear provision contained in section 289 Cr. P. C., and while dealing with that section developed the further argument that on a proper construction of the fourth subsection the duty of the Court was to allow the accused a further opportunity of stating whether he would lead defence evidence, or at any rate of examining evidence in defence, after the prosecutor had summed up his case, and if the fact then were, as the even proved, that the Court was ‑ of opinion that there was a case was the accused to answer. The argument is an elaborate one and for its appreciation it is necessary to reproduce here in full the provisions of three section of the Cr. P. C. viz., sections 289, 290 and

292. Section 289.‑(1) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. (2) If he says that he does not, the prosecutor may sum up his case; and, if the Court considers that there is no evidence that the accused committed the offence, it may then, in a case tried with the aid of assessors, record a finding, or, in a case tried by a jury, direct the jury to return a verdict of not guilty. (3) If the accused, or any one of several accused, says that he means to adduce evidence, and the Court considers that there is no evidence that the accused committed the offence, the Court may then, in a case tried with the aid of assessors, record a finding, or, in a case tried by a jury, direct the jury to return a verdict of not guilty. (4) if the accused, or any one of several accused, says that he means to adduce evidence, and the Court con?siders that there is evidence that he committed the offence, or if, on his saying that he does not mean to adduce evidence, the prosecutor sums up his case and the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence. Section 290.‑The accused or his pleader may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses (if any) and after their cross‑examination and re‑examination (if any) may sum up his case. Section 292.‑The prosecutor shall be entitled to reply (a) if the accused or any of the accused adduces any oral evidence; or (b) with the permission of the Court, on a point of law; or (c) with the permission of the Court, when any document which does not need to be proved is produced by any accused person after he enters on his defence: Provided that, in the case referred to in clause (c) the reply shall, unless the Court otherwise permits, be restricted to comment on the document so produced. The way Mr. Mahmud Ali argued was this. He con?strued section 289 as laying first a duty upon the Court at a certain stage to ask the accused whether he means to adduce evidence. Two contigencies could then arise viz., the accused might answer yes or he might answer no. If the answer was in the negative, the Court must call upon the prosecutor to sum up his case and thereafter two contin?gencies were provided for i.e., that the Court might consider that there was no case for the accused to answer or in the alternative that there was a case to answer. In the former case the Court must record a finding of not guilty but in the latter case the duty of the Court is to "call upon the accused to enter on his defence". For an appreciation of the meaning of the latter expression Mr. Mahmud Ali relied upon section 290 which speaks of three distinct steps namely, opening of the case including a statement of facts and law and comments on the prosecution evidence to be followed by examination of witnesses (if any) according to the usual procedure, and finally, summing up of the case. It was urged that even supposing that a statement by counsel declaring that the accused will not produce evidence in his defence is in all respects equivalent to the statutory requirement that such a statement should be made by the accused himself, there were no words in section 289 to suggest that when, under the provision contained in sub?section (4) and in the case where the accused has declared that he will not adduce evidence, his rights under section 290 are not the full rights provided by that section, but are confined to opening the case, commenting on the prosecution evidence and summing up the case. It was contended that the only reasonable interpretation of the law on the point was that, even if the accused has at a certain stage declared that he will not adduce evidence, if after the prosecutor had summed up his cast; the Court is of opinion that there is a case for the accused to answer, the accused gains a right under section 290 of producing such evidence as is available to him under section

291. It has been necessary to consider the argument with great care, for the reason that it is the universal practice of sessions trials to regard the opportunity provided by subsection (1) of section 289 to the accused to state whether he means to adduce evidence, as his last opportunity of making a choice in the matter. It the accused answers in the negative the practice is for a Court to call upon the prosecutor to sum up his case and then the defence exercises a right of reply. On the other hand if the accused wishes to produce evidence and does so the right of reply vests in the prosecutor under section 292 and the address on behalf of the defence consists of a summing up of the case in accordance with‑ section

290. If the interpretation contended for. by Mr. Mohmud Ali is correct, the procedure which is followed, and which has been followed for a great many years is, and has. been; prejudicial to the accused. Yet, 'effect must' be given to the interpretation if indeed it is a true inter?pretation of the words used by the legislature. On careful consideration it seems to me that the words of the statute will not sustain the view advanced by Mr: Mahmud Ali. The intention of the legislature was, in this respect, to provide just such a procedure as that which has been and continues to be followed at sessions trials and there need be no apprehension that accused persons have in this respect been denied opportunities fundamental to the dispensation of justice in their cases. Section 289 which is divided into four subsections provides for four distinct contingencies. The provisions applicable when the accused's declaration is that he will not produce evidence have already been stated. When , the accused's declaration is that he will produce evidence, the duty to be performed devolves directly upon the Court. itself to consider whether or not there is any case made out against the accused. If the Court considers that no such case is made out it may, despite the accused's wish, terminate the proceedings forthwith by recording ‑a finding of ‑not guilty. If, on the other hand; the Court's opinion is that there is a Case for the accused to answer, then it shall call upon the accused to enter on his defence. The steps constituting the defence are stated in full in section

290. It is noteworthy that in each of these contingencies the Court is required to form its opinion unaided by any address from the prosecutor, and the reason for this is obvious on reference to section 292, namely, that the prosecutor has his right of reply whenever the accused adduces evidence in support of the case. But for the purposes of the present discussion, the relevant consideration arising out of the differential provisions is this, .that of the two contingencies which arise for the application of the provisions of section 290, one arise upon a declaration by the accused that he will not lead evidence and the other upon a declaration that he will lead evidence It was, therefore, to be, expected ‑that provision should be made in section 290 for evidence to be led by the accused and that it should be in conditional form. The very specific nature of the provisions which are made dependent upon the accused's, election itself is a sufficient indication that the choice, once exercised., takes effect in law. The words in parenthesis "(if any)" following after the liberty given to the accused to examine his witnesses appear to me to indicate clearly the intention of the legislature that the provision should apply to only one of the two contingencies to which the whole section i.e. 290 was intended to .be applicable. In other words, the right to call witnesses was not intended to be given independently by section

290. The provision for election in section 289 is of a definitive nature and once an accused person has made a choice and declared ;that he will not lead evidence, he cannot rely on I anything contained in section 290 for claiming a separate and supplementary right to adduce evidence. What happened in this case was this. The accused person was not asked during the examination at the trial whether he would adduce evidence. The statement of the counsel `that "no' defence" would be led (meaning, of course, no defence evidence) is recorded under the, following heading in a printed form :‑ "The prosecution have been brought to a close the accused's Advocate is called upon to enter upon his defence if any". In three relevant respects, these words are distinctly misleading. Firstly whether or not an accused person leads evidence, it is customary for him or, his 'pleader to "enter upon his defence" within the meaning of section 289 (4) of the Code, by utilising the right to state the defence case and to comment upon the prosecution case in the course of the reply to the prosecutor's address. Therefore the words "defence if any" contained in the heading of this form can only refer to defence evidence. Secondly the question whether any defence evidence is to be adduced is required by the statute to be addressed not to the advocate ,but to the accused himself. Thirdly, the expression "enter on his defence" is used in section 289 (4) with reference to a stage (in a case where no defence evidence is led) following upon the conclusion of the prosecutor's address, and in this case, the record clearly shows that the prosecutor's address followed after the accused's advocate had declared that no defence would be led. Much of the argument in the present case appears to find its source in the doubts and complexities created by the wholly misleading wording of this form. The only error worthy of note in this case is that the statement that no defence evidence would be adduced was made not by the accused by his advocate. This was a contravention of the statute but it is clear that it is an irregularity which in the absence of prejudice does not vitiate, the trial (section 537, Cr. P. C.). Nor does it appear that it has led to the accused's case being prejudiced in the slightest degree. Though his defence witnesses were present it is clear enough that he was aware that they were not to be examined and that instead his counsel was exercising . . .the right of reply to the prosecutor's address, which is acquired by forgoing the right to produce evidence. If he had desired that his witnesses should be examined he could have asserted his wish in Court without the slightest difficulty. He did not do so. Although there has been no prejudice to the accused in this case by reason of this contravention, I think it desirable to state that the words of the statute are clear and it is necessary that the trial Courts should invariably obtain from the accused person himself a statement whether or not he will adduce evidence. I have, for these reasons come to the conclusion that there is no ground fur interference by this Court with the conclusion reached in the Courts below. A. H.??????????????????????????????????????????????????????????? Appeal dismissed.