P L D 1958 Supreme Court (Pak (PLP)

(c) Criminal Procedure Code (V of 1898), S. 356 (3)‑Failure of presiding officer to keep memorandum of depositions‑Irregula rity curable under S.

537. Hazrat Jamal v. The State P L D 1958 S C (Pak.) 383 foll. A. K. Brohi Senior Advocate, Supreme Court (M. B. Zaman, Advocate, Supreme Court, with him), instructed by M. Siddiq, Attorney for Appellants. Mohsin Shah, Senior Advocate, Supreme Court, (Said Akbar Khan, Advocate, Supreme Court, with him) instructed by Ijaz Ali, Attorney for Respondents. ‑ Dates of hearing : 12th and 13th May 1958. S. A. RAHMAN, J.‑Ali Haider appellant was sentenced to death for the murder of Yaqub Khan and Ahmad Din, by the trial Judge, his sentence being confirmed on appeal by the West Pakistan High Court, Peshawar Bench. Special Leave to Appeal was granted in this case on three grounds. It was stated firstly that the medical evidence in the case might require re‑examina tion in so far as it had a bearing on the credibility of the eye witnesses. Secondly, it was pointed out that the evidence given by three prosecution witnesses (two of whom had identified the dead bodies at the time of the autopsy and the third, a foot constable, who had conveyed the corpses to the mortuary) had been transferred to the Sessions record without complying with the requirements of S. 33 of the Evidence Act. The third consideration was that the trial Judge, while dictating the evidence of witnesses in open Court to his stenographer, had failed to keep a memorandum of the substance of what each witness said, as required by S. 356 of the Code of Criminal Procedure. It was also added that certain facts had been elicited by the trial Judge from the investigating officer, Imam Din Khan (P. W. 19), which could not have been admitted into evidence in the face of S. 162, Criminal Procedure Code. The essential facts of the case may be briefly stated. There was a dispute over some land between the appellant and his maternal uncle, Jalal, which was sought to be resolved through the good offices of a deputation consisting of the deceased Yaqub Khan, Muhammad Siddiq (P. W. 10) and some other persons. In the course of the deliberations between the contending parties in the presence of this delegation, on a suggestion being made that a declaration of the facts coupled with the recitation of the kalima should be considered decisive of the dispute, the appellant is said to have uttered some blasphemous word concerning the sacred kalima. Yaqub Khan obtained a fatwa bearing on the appellant's conduct, from certain muftis, which was pasted by him on a deserted shop in front of the village school where the appellant was working as a teacher. The fatwa condemned the person who had shown disrespect to the kalima, as a sinner and called upon the faithful to ostracise him unless he repented and purged himself of the sin by offering sacrifice. Taking offence over the behaviour of the deceased, the appellant is said to have gone to the field of Yaqub Khan on the 1st of May 1956, at about 8 a.m., and to have shot dead Yaqub Khan and accidentally also one, Ahmad Din, who happened to be there, by firing two shots from a very close range. In all he is alleged to have fired four shots, the first two having missed the target. The incident was witnessed by Muhammad Arif (P. W. 7)Muhammad Hussain (P. W. 8) Nazar Muhammad (P. W. 9) and Mahmud (P. W. 20). The last‑named was a brother of the deceased Yaqub Khan. He died by the time the trial took place and his statement as recorded by the committing Magistrate, was read out as evidence in the case under S. 33 of the Evidence Act. Muhammad Arif and Muhammad Husain were the tenants of Yaqub Khan deceased while Nazar Muhammad was alleged to have been cutting his barley in an adjacent field, at the time of the occurrence. Two empty cartridges were also picked up from the spot and expert evidence was led to show that they were fired from the licensed shotgun of the appellant, recovered from his house during the investigation. The learned Judges of the High Court thought that Mahmud may not have been present at the spot when the incident started but that his shop being close to the site of the occurrence, he must have arrived at the spot immediately after the incident was over and recovered the two empty cartridge cases from there. They accepted the evidence of the other eyewitnesses as reliable. The point was raised before them that the statements of Muhammad Husain (P. W. 1), Noor Hussain (P. W. 2) and Kala Khan, foot constable (P. W. 3), as recorded by the Committing Magistrate, were illegally transferred to the Sessions record. The learned trial Judge had ordered those statements to be read as evidence at the trial on the ground that their depositions were of a formal nature. Apparently the witnesses in question were not summoned at the trial, at the suggestion of the Public Prosecu t9r, in order "to avoid unnecessary expenses" to the State. The learned Judges considered that the objection raised had no merit. The procedure adopted by the trial Judge was held to be not illegal and it was observed that if it could, "by any stretch of imagination be said to be irregular", the defect was curable under S. 537, Criminal Procedure 'Code, because no prejudice had been caused to the accused. We are constrained to observe that there was a flagrant dis regard of the provisions of S. 33 of the Evidence Act in trans ferring the statements of the three witnesses in question to the Sessions record, without laying the foundation for that course, by adducing strict proof that the witnesses were incapable of giving evidence or that their presence could not be secured without an amount of delay or expense which under the circumstances o1 the case, the Court could justifiably regard as unreasonable. The procedure adopted was clearly not warranted by the reasons mentioned by the learned trial Judge. Reference in this connec tion may be made to Chanchal Singh v. Emperor (AIR 1946 P C 1) and Aminul Haq v. Crown (P L D 1952 F C 63). The order of the learned Judge in this respect appears to have been acquiesced in by the learned counsel for the accused, but it is clear that in a criminal case the provisions of S. 33 of the Evidence Act could not have been waived. As a result, the statements of these three witnesses must be kept out of consideration as they cannot be said legally to form part of the evidence in the case. The other evidence on record, however, would be sufficient to sustain the conviction in the instant case even if these statements are disregarded. It is greatly to be regretted that a deliberate departure should have been made by the trial Court from the procedure prescribed by law in this behalf. It is conceivable that such an attempt, if repeated, might lead to failure of justice in circumstances different from those that obtain in the present case and it would be fitting if the High Court were to draw the attention of all concerned to the necessity of strict compliance with the relevant provisions of the law in future. We next come to a consideration of the evidence of the eyewitnesses in the light of the doctor's statement. The trial Judge commented adversely on the evidence given by Doctor Muhammad Bashir (P. W. 1), who is apparently a raw recruit to the medical service of the Province. The doctor was inexact in describing the injuries of the two deceased persons, inasmuch as he indiscriminately described wounds caused by pellets from a shotgun, as bullet wounds. He also used the expressions "undigested food" and "semi‑digested food" as equivalents. He had examined the dead bodies of Ahmad Din and Yaqub Khan on the same day, at 8 a.m. and 10 a.m. respectively. In the case of the former, he deposed that he had found "undigested food" in his stomach but gave the time between the last meal taken by the deceased and his death, as 3‑4 hours. In the case of Yaqub Khan he described the stomach contents as "semi‑digested food" and estimated the time between his last meal and death to be again 3‑4 hours. When asked to elucidate the position at the trial, he declared that by the words "undigested food" he had meant to convey really "semi‑digested food". Mr. Brohi tried to suggest on behalf of the appellant that the time of the occurrence given by the witnesses, namely 8 a.m., was inconsistent with the finding of undigested food in the stomach of one of the deceased. It was the month of Ramzan and the deceased Muhammad Yaqub was said to have taken his sehri meal at the usual time. If semi‑digested food was found in his stomach, the fact cannot be represented as inconsistent with the ocular evidence. There is no indication in the evidence as to when Ahmad Din had taken his last meal. If he also ate something at sehri time or even early in the morning, before going to the fields, and undigested food, imprecisely described as `'undigested food" by an inexperienced doctor, was discovered in his stomach, the circumstances would not serve to believe the eyewitnesses' story. It is significant that this point was not even mentioned before the learned Judges of the High Court. We are unable to see any thing in the medical evidence, which could discredit the eyewit nesses, despite the inaccuracies that had crept into the testimony of the doctor. The somewhat unsatisfactory nature of the deposition of this witness would be too flimsy a foundation for the suggestion made by Mr. Brohi that the trial had been conducted in a manner prejudicial to the defence. The third contention raised on behalf of the appellant is that the trial was vitiated by 'failure of the trial Judge to conform to the procedure laid down by S. 355 of the Code of Criminal Procedure, for recording the evidence of witnesses. An identical point of law was taken in similar circumstances in the appeal Hazrat Jamal v. State‑Criminal Appeal No. 11 of 1956 : (1) which is being disposed of by order of even date. It is unnecessary to dilate on this question in the present case. For the reasons given in the judgment of that case, we hold that the trial was not rendered illegal by the failure of the presiding officer to keep a memorandum of the deposi tions of the witnesses in his own hand in the circumstances o fl the case. Lastly, it is true that the trial Judge appears to have ques tioned S. I. Imam Din Khan (P. W. 19), as to the contents of an oral statement made by Muhammad Arif (P, W. 7) to him, after the F. I. R. had been recorded. This was clearly not permissible, having regard to the provisions of S. 162 of the Code 6f Criminal Procedure. The answers made by Muhammad Arif to the Court questions could however be safely eliminated from the record without detriment to the result of the case and the course adopted by the learned Judge cannot be pressed into service for attacking the merits of the prosecution story. The conviction of the appellant and the sentence imposed on him do not require interference on any of the grounds urged in this appeal, which is hereby dismissed. K. B. A. Appeal dismissed.