P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

Akbar Ali and his brother Allah Ditta were tried for the murder of Fateh Khan, the husband of their sister, with the result that, found guilty, they were convicted under section 302/34 of the Pakistan Penal Code. Akbar Ali was awarded a sentence of death, while Allah Ditta was awarded a sentence of transportation for life. The two brothers presented this joint appeal and the case was referred to this Court by Mr. S. M. Tirmizey, who as Additional Sessions Judge, Gujrat, passed the order appealed against on the 8th of August 1959. The case was placed before a Division Bench as required by the rules of this Court, but as the learned Judges constituting that Bench (S. A. Mahmud and A. R. Khan, JJ.) were of the view that a question of law agitated before them should be determined by a larger Bench, the case has come before this Full Bench of three Judges. The point of law that requires determina tion will be mentioned presently. The appeal and the reference for confirmation will be disposed of by this order.

2. The prosecution case against the two appellants was that they had on the afternoon of the 13th of July 1958 in village Chachowal in the district of Gujrat made a concerted attack on Fateh Khan deceased. In order to save his life Fateh Khan entered the house of Muhammad Ali, a resident of the village, where his pursuers followed him and caused him injuries with a kulhari and a kahi, the former of which weapons was in the hands of Akbar Ali and the latter in those of Allah Ditta. The motive was stated to be that about two decades earlier Fateh Khan had run away with Mst. Nur Begum, the sister of the two appellants, and had married her against the wishes of her paternal relatives. After the marriage Fateh Khan took up service in the Railway Department and was posted at places far away from his home village. On the day of the occurrence, however, he had happened to come to his home village on leave and finding an opportunity the two appellants attacked him in order to avenge the abduction of their sister. The first information report, made on the 14th of July 1958 at Police Station Lala Musa which is at a distance of twenty‑one miles from the scene of the occurrence, mentioned the above mentioned version and added that besides the informant Muhammad Aslam, the occurrence was witnessed by Haji Muhammad, Mian Khan and Akbar Ali.

3. At the trial the eye‑witness account of the occurrence was given by Muhammad Aslam (P. W. 2), Haji Muhammad (P. W . 3), Mian Khan (P. W. 4) and Akbar Ali (P. W. 5). Muhammad Aslam is a nephew (brother's son) of the deceased and admitted this relationship. Haji Muhammad (P. W. 3) was asked in cross‑examination whether he was a collateral of Fateh Khan and he replied in the negative. Mian Khan (P. W. 4) appears to have stated before the Committing Magistrate that his brother Ahmad Khan was married to Mst. Rashida Begum, a sister of Muhammad Aslam (P. W. 2), but when questioned about this relationship in the Court of Sessions, his reply was a denial. Akbar Ali (P. W. 5) admitted in cross‑examination that he was a distant collateral of Muhammad Aslam (P. W. 2).

4. Besides the above direct evidence, the prosecution relied on the fact that during the investigation of the case by the Police each of the appellants gave information which led to the recovery of the weapon which he was alleged to have used. Akbar Ali appellant was stated to have produced a hatchet from the house of his brother Mahla, while with regard to Allah Ditta the evidence led by the prosecution was to the effect that he had produced a kaki. Both these weapons when subjected to chemical examination by the Serologist to the Government of Pakistan were found to be stained with human blood.

5. On the 24th of October 1958, the Committing Magistrate examined both the appellants in detail with regard to the cir cumstances appearing in the prosecution evidence against them. Each of them was asked by the Magistrate questions which gave him an opportunity to explain the circumstances appearing in the prosecution evidence against him. To the question whether they had in furtherance of their common intention caused fatal injuries to Fateh Khan, both the appellants relied in the nagative. They were both asked whether Fateh Khan had abducted their sister, Mst. Nur Begum, and had married her against their wishes for which reason they bore him a grudge and they both denied the abduction and the entertaining of any grudge by reason of the marriage of Mst. Nur Begum to Fateh Khan. Akbar Ali was asked whether he had on the 16th of July 1958 produced the bloodstained kulhari Exh. P. I from the house of his brother Mahla and he replied in the negative. He was asked whether the kulhari belonged to him and here again his reply was in the negative. Similarly Allah Ditta was asked whether he had produced the kahi Exh. P. 2 from his house and he said that he had not and is reply to another question stated that the kahi did not belong to him. When the prosecution evidence finished in the Court of the learned trial Judge, he took statements of both the appellants. These statements, however, suffer from one defect, namely, that the circumstances appearing in the prosecution evidence against them were not specifically put to the appellants and all that each of them was asked was a few questions which and the answers to them are reproduced below:‑-- Q.‑Whether on the 24th of October 1958 you made the statement, read over to you, before the Committing Magistrate ? A.‑Yes. Q.‑Would you like to say anything else? A.‑No. Q.‑Would you produce defence ? A.‑No.

6. When the case came up before my two learned brothers who constitute the Full Bench with me, a question was raised before them that as the learned trial Judge did not make a detailed examination of the appellants as required by section 342 of the Code of Criminal Procedure, the trial was vitiated from the stage at which the examination should have been made. Reliance was placed before the Division Bench on a decision given recently by a Bench consisting of Abdul Aziz Khan and A. R. Khan, JJ. the latter of whom is a member of this Full Bench, in Fazal and others v. The State (P L D 1960 Lah.547), wherein it was held that examination of the accused by the Sessions Court, of the type of which the exami nation in the present case was, vitiated the trial from the stage of the inadequate examination and a retrial from that stage was necessary. ' On the other hand, a Bench of two Judges of the High Court of Judicature at Lahore had taken a contrary view in Ali Shah and others v. The Crown (P L D 1953 Lah.14). The learned Judges of the Division Bench before whom this case came up in the first instance said in their order dated the 1st of July 1960 that with a view to having an authoritative decision on the question of law that arose and to resolving this difference between two Division Benches the case should be disposed of by a Full Bench and it is for that reason that this Bench of three Judges is hearing this case which should ordinarily be disposed of by a Bench of two. It was evidently not within the knowledge of the learned Judges who referred the case to the Full Bench that another Division Bench of which I was a member had on the 17th of June 1960 given a decision which dealt with precisely the same question in Bashir Ahmad etc. v. The State (P L D 1960 Lah. 687) and had in a lengthy judgment dissented from the view expressed in Fazal and others v. The State.

7. The question of law that falls for determination by this Full Bench is whether the trial is vitiated if the Sessions Judge instead of making a detailed examination of the accused with regard to the circumstances appearing in the prosecution evidence against the accused contents himself with asking the accused the questions of the type that were asked by the learned trial Judge in the present case. The matter is governed by section 342 of the Code of Criminal Procedure and on the language used therein it is hardly open to question that it is the duty of the Sessions Judge in a case which has come before him on commitment by a Magistrate to give the accused an opportunity to explain the circumstances appearing in the prosecution evidence against him. That, however, does not conclude the matter, because if the accused has been given an opportunity to which he is entitled under section 342 of the Code of Criminal Procedure, the question would arise whether the mere fact that the Sessions Judge did not draw the attention of the accused to each circumstance appearing in the prosecution evidence against him would in any manner affect the legality of the trial. This question has been dealt with by me at considerable length in Bashir Ahmad etc. v. The State. In that case I took the view, with which my learned brother Sajjad Ahmad agreed, that the fact that the Sessions Judge did not ask the accused specific questions about the circumstances appearing in the prosecution evidence against him but merely contented himself with asking whether he admitted the statement made by him before the Committing Magistrate to be correct and on receiving an answer in the affirmative asked the accused whether he would like to add anything to the statement would not vitiate the trial unless it could be shown that the accused had been prejudiced in his defence by reason of the failure of the trial Judge to strictly comply with the provisions of section 342 of the Code of Criminal Procedure.

8. While dealing with the case, Bashir Ahmad etc. v. The State, I had carefully gone through the twenty‑two decisions relied upon by Abdul Aziz Khan, J. in his leading judgment in Fazal and others v. The State and had found that none of those decisions which Abdul Aziz Khan, J. said supported his view actually did so. When during the hearing of this case I asked Mr. M. B. Zaman, Assistant Advocate‑General, West Pakistan, who had appeared for the State before Abdul Aziz Khan and A. R. Khan, JJ., and was appearing before this Full Bench with Mr. M. Anwar, Advocate‑General, West Pakistan, why he had not pointed out to the learned Judges that most of the decisions mentioned in their judgment has no relevancy for the purpose of determination of the question that arose, he replied that the decisions had not been cited at the hearing of the appeal. A. R. Khan, J., remarked that as far as he recollected some at least of the twenty two‑decisions had been cited by counsel for one side or the other. But be that as it may, the fact remains that most of the authorities relied upon in Fazal and others v. The State, had no application and those that had application had taken a view contrary to that which Abdul Aziz Khan, J. said that they had taken. Nothing said during arguments addressed to this Bench has made me change the view I expressed in Bashir Ahmad etc. v. The State and as I can do no better than copy out paragraphs Nos. 14 and 15 of that judgment as my decision of the question of law raised in this case, I proceed to do so. These paragraphs read as under :‑ "

14. The question whether the examination of the type that was held in the present case by the learned Sessions Judge is sufficient compliance with the provisions of section 342 of the Code of Criminal Procedure still remains to be determined. It is hardly open to question that the evidence which an accused person is to be called upon to explain is the evidence which is before the Court which has to hold the examination and not evidence which may have been given in the commitment pro ceedings, but that does not conclude the matter because one has to consider what form the examination of the accused by the Court has to take. It cannot be doubted that a mere general question as to what the accused wanted to say with regard to the prosecution evidence cannot be considered to b compliance with the provisions of section 34 2 of the Code of Criminal Procedure, but no one can doubt that no hard and fast rules can be laid down as to the form of the questions that should be asked from the accused when examining him under section 342 of the Code of Criminal Procedure. Opinions with regard to the form of questions may differ in some cases, but if the circumstances appearing in the prosecution evidence against an accused person have been put to him so that he has been given an opportunity to explain them, no appellate Court would consider the examination by the trial Court to be inadequate if the questions asked from the accused deal with all material evidence that can be used against him. This brings one to the question whether asking an accused person whether he had made before the committing Magistrate the statement read out to him and whether he wanted to add to that statement can be considered to be compliance with the provisions of section 342 of the Code of Criminal Procedure. Such an examination of the accused is not in accord with the provisions of section 342 of the Code of Criminal Procedure, but if the evidence at the trial is materially the same as that before the Committing Magistrate, I should be reluctant to hold such an examination of the accused to be inadequate. I am not denying that the trial Judge should draw the attention of the accused to all the evidence which the Judge considers points towards the guilt of the accused, but if all the material circumstances were put to the accused in the Court of the Committing Magistrate, the Sessions Judge who does not question the accused about the circumstances is no doubt guilty of an omission, but the omission would not be of the type which could vitiate the trial. If, however, the evidence before the trial Court is different from that before the Court of the Committing Magistrate, that is, if some evidence which was not on the record of the Court of the Committing Magistrate has been brought on the record of the trial Court, the omission to give the accused an opportunity to explain the additional circumstance would be an omission which cannot be overlooked because if that evidence is used against the accused, it would have been used without his having been given an opportunity to show that it was not entitled to any reliance. If, however, such additional evidence is not used against the accused, the omission of the trial Judge to strictly comply with the provisions of section 342 of the Code of Criminal Procedure stands on the same footing as his omission to make a detailed exami nation of the accused. Cases can arise in which the evidence before the trial Court does not contain some pieces of evidence before the Committing Magistrate. In such cases the omission of the trial Judge to make a detailed examination of the accused would obviously be no worse than the omission to make a detailed examination where the evidence before the trial Court and the Committing Magistrate is precisely the same.

15. It is true that if there is an omission to follow any provisions of law, an error has been committed, but before an error can be taken serious notice of it must be of a type which cannot be cured under the provisions of section 537 of the Code of Criminal Procedure. Section 537 of the Code of Criminal Procedure was enacted in order that omission to follow the Code in unimportant details may not entail the necessity of a retrial. If, for example, the Code requires that a Magistrate shall sign the statement of a witness, the fact that the statement is not signed but only initialled by the Magistrate could not be considered to be an error of the type which would vitiate the trial. As pointed out by me in Ibrahim and another v. The State P L R 1959 (2) 689, section 537 of the Code of Criminal Procedure was intended to come into play in cases where a mandatory provision of the Code had not been complied with because if a Court has not complied with a provision which it was at liberty either to comply with or not nobody could say that it had been guilty of an irregularity. One is of course aware of irregularities which prejudice the accused person and one of them was dealt with by their Lordships of the Privy Council in the case of Subramania Ayyer v. The Emperor I L R 25 Mad. 61 in which an accused person was tried at one trial for more offences than three and their Lordships remarked that it could be, presumed that the accused person had been prejudiced in his defence by reason of the Court not following the provisions of the Code of Criminal Procedure with regard to the mode of trial. Omissions of the trial Court to hold a detailed examination of an accused person under section 342 of the Code of Criminal Procedure are not incurable by section 537 of the Code of Criminal Procedure, but it will depend on the circumstances of each case whether or not the error was such as to be curable by that section."

9. But I must make it clear as I did in my judgment in Bashir Ahmad etc. v. The State that the practice which appears to be quite common amongst Sessions Judges in the Province; of contenting themselves with an examination of the accused of the type which is under consideration in the present case is highly objectionable. A Sessions Judge who does not make a detailed examination of an accused person fails in his duty and that position does not alter even if his judgment is not set aside by the appellate Court by reason of his not complying with the; salutary provisions contained in unambiguous terms in section 342 of the Code of Criminal Procedure. It is by no means unlikely that serious notice will be taken by this Court if the provisions of section 342 of the Code of Criminal Procedure continue to be disregarded even after this judgment is brought to the notice of Sessions Judges in the Province.

10. I will now consider the question whether in the light of the principles enunciated in the last but one paragraph, the examination of the accused persons in the present case suffers from a defect of the kind that would make a retrial necessary. It was not denied by the learned counsel for the appellants that the material evidence produced before the Sessions Court at the trial was precisely the same as that in the Court of the committing Magistrate except in one respect. The difference between the evidence in the two Courts was that when the statements of the accused persons were recorded by the Commit ting Magistrate on the 24th of October 1958, the report of the Serologist to the Government of Pakistan had not arrived and this was tendered in evidence during the trial before the Sessions Judge. This report which is Exh. P. N/1 on the record was to the effect that the earth, scrappings from the hatchet and kahi which had been sent for chemical examination were stained with human blood. It follows, therefore, that when the accused persons were questioned by the committing Magistrate with regard to the weapons which, according to the prosecution, had been used by them in doing Fateh Khan to death, the evidence that these weapons bore stains of human blood was not on the record and the accused persons were not given an opportunity to explain the presence of stains of human blood on the weapons. No doubt in the present case the evidence which was not led in the Court of the Committing Magistrate was brought on the record in the Court of the learned trial Judge, but it appears to me that in the circumstances of this case, that fact by itself does not have any serious effect. As I have said in paragraph No. 5, each of the two appellants denied the recovery at his instance when he was questioned about it by the Committing Magistrate and further denied the ownership of the weapon alleged to have been recovered. The mere fact, therefore, that the learned trial Judge did not question the accused person in order to afford them an opportunity to explain the presence of human blood on the weapons would not be of any significance because the accused persons having denied the production and the ownership of the weapons in their statements in the Court of the Committing Magistrate and having admitted those statements to be correct when questioned by the learned trial Judge, the additional evidence brought on the record in the Court of the learned trial Court could not be said to be of a character that could possibly have made them change their statements if it had been pointedly brought to their notice that the weapons were stained with human blood. If, however, the accused persons had admitted in the Court of the Committing Magistrate that the weapons were recovered at their instance or were theirs and the evidence with regard to the weapons being stained with human blood had been brought on the record for the first time before the learned trial Judge the case would have been entirely different because in that case the circumstance of the presence of human blood on the weapons would have been one with regard to which the accused persons had not been given an opportunity to offer an explanation. The statements of the accused before the Committing Magistrate taken in conjunction with their statements in the Court of the learned trial Judge amounted to 'a denial of the production of the weapons and their ownership and the mere fact that the learned trial Judge did not bring it to the notice to the accused persons that the weapons were stained with human blood would not make any difference. The learned counsel for the appellants mentioned another extremely minor point about which, he said, the appellants had not been called upon to give an explanation. It was urged that because the prosecution case was that it was for the first time that it was on the day of the occurrence that the deceased and the two appellants happened to be in the village at the same time and that circumstance had not been put to the accused persons to afford them an opportunity to admit or deny that fact the appellants had been prejudiced in their defence. It is true that the appellants were not asked whether it was for the first tine on the day of the occurrence that the deceased and they happened to be in their home village on the same day, but this omission is entirely immaterial because the evidence on that point does not materially advance the case for the prosecution nor was it taken any serious notice of by the learned trial Judge. Section 342 of the Code of Criminal Procedure does not mean that each and every circumstance appearing in the prosecution evidence against an accused person` should be put to him, and I am clear in my mind that it is only, those circumstances which are likely to turn the scale in favour of the prosecution that have to be put to the accused person so that he may, if he chooses, offer an explanation with regard to them. In view of what I have said, I hold that the omission of the learned trial Judge in the present case to question the accused in detail did not vitiate the trial.

11. I will now take up the consideration of the case on merits. Before dealing with the evidence I might dispose of the application presented on behalf of the appellants for taking of additional evidence under section 428 of the Code of Criminal Procedure. The evidence which the application mentions will not affect the decision in any manner and no occasion for exercise of the discretionary powers given by section 428 of the Code of Criminal Procedure arises. The prosecution case is supported by four eyewitnesses. No doubt these witnesses have in some way or the other connection with the deceased, but that circumstance is entirely immaterial because there is nothing on the record to show that before the incident the appellants were believed to be the enemies of the deceased. As the witnesses did not know that the appellants nursed against the deceased a grudge for what he did about twenty‑four years earlier, it is obvious that the witnesses could not have any motive to name the appellants as culprits either on suspicion or due to malice. If the deceased had been done to death by some other persons one fails to see why the eyewitnesses produced by the prosecution should have implicated the appellants and if the attack on the deceased had not been witnessed by anyone, there was no apparent reason for the witnesses to suspect the appellants as the murderers. But there is some more evidence against the appellants which taken in conjunction with the deposition of the eyewitnesses, in my opinion, makes it clear that the deceased met with his death at the hands of the appellants. This evidence is the recovery of a weapon at the instance of each of the appellants each of which weapons bore tell‑tale stains of human blood. In my view all this evidence clearly proves that it was at the hands of the appellants that the deceased received the injuries which ended in fatality.

12. Doctor Fida Muhammad Piracha, Medical Officer, Civil Hospital, Gujrat, (P. W. 1), who performed the post‑mortem examination on the dead body of the deceased on the 14th of July 1958 at 5‑30 p.m. found thereon the following injuries:‑-- (1) An incised wound on the back of head, 5" x ", cutting the occipital bone and the brain matter underneath. piece of cut bone is hanging like tongue. (2) An incised wound on the back of right shoulder, 6" x 2" x 1'', extending to the right chest (upper part of scapula). (3) An incised wound on the medial border of right scapula vertical, 5" x 2" x 1". (4) Parallel to injury No. 3, an incised wound, 4" x 1" x 1" and 1" medial to injury No. 3. (5) An oblique. incised wound, 1/2" to the left of middle line on the back of left side of chest, 4" x 11" x 1", on medial side of medial border of left scapula reaching lower angle. (6) An incised wound, 3 " x 1" x 1", left super scapular area. (7) An incised wound, 6" x 2" x 2", outer side of left shoulder cutting the left arm bone underneath and oblique in direction. (8) A contused wound on the arm, 3'' x 2'' x 1 ", above the medial province of the elbow skin deep underneath arm bone is broken. It will be noticed that the length of at least two of the incised injuries is six inches, while that of the other five is about four inches. Prima facie this difference in the length of the wounds was due to the fact that the blade of the weapon used was different in the case of one kind of the wounds than in that of the other. The number and nature of injuries clearly indicate that the intention of the assailants was no other than to cause the death of the victim. It is not established who caused the, injuries which were individually fatal, but the circumstances make it clear that the attack was the result of a pre concerted plan and, therefore, section 34 of the Pakistan Penal Code being applicable, the offence of each of the appellants would fall under section 302 of the Pakistan Penal Code.

13. The question of sentence may now be taken up. Allah Ditta appellant has been awarded the minimum sentence prescribed by law for an offence of murder and, therefore, his sentence cannot be reduced, even if its reduction were believed necessary. As regards the sentence of Akbar Ali appellant, it was urged by the learned counsel for the appellants that the reason given by the learned trial Judge for imposing a heavier sentence on Akbar Ali could not be said to be sound. The learned trial Judge was of the view that it was Akbar Ali who induced Allah Ditta to participate in the crime. The circumstances tend to show that this was probably so. But assuming that it was not, I do not see why the mere fact that the extreme but normal penalty prescribed by law for an offence of murder had not been exacted from one of the murderers should furnish aground for not exacting it from the other. At any rate this cannot be a valid ground for an appellate Court to reduce the sentence of the one from whom the extreme penalty has been exacted by the trial Court. The abduction of the sister of the appellants by the deceased took place about a quarter of century earlier and as this was not a case of mere abduction but one of abduction followed by lawful marriage, the appellants cannot be said to have had any reasonable ground for feeling annoyed. Consequently I see no ground for reducing the sentence of death passed against Akbar Ali.

14. The result of what I have said above is that it must be held that Fazal and others v. The State does not lay down the law correctly and that the present appeal being dismissed in its entirety the sentence of death imposed by the learned trial Judge on Akbar Ali is confirmed. S. A. MAHMOOD, J.‑

I agree. A. R. KHAN, J.‑

I agree with the interpretation of section 342, Cr. P. C. and the confirmation of the death sentence passed against Akbar Ali in this case and the sentence passed upon Allah Ditta. A. H. Appeal dismissed.