P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

Of the five persons tried by him under sections 148 and 302/149 of the Pakistan Penal Code, Sheikh Muhammad Akbar, Sessions judge, Gujranwala, while acquitting the other two, convicted three; namely, Muhammad Pariah alias Pariah, his brother, Mirza and Husain under section 302/34 of the Pakistan Penal Code, of whom Muhammad Pariah alias Panah was sentenced to death and the other two to transportation for life. The three convicted persons have presented a joint appeal to question their con viction while the learned trial judge has referred the case to this Court for confirmation of the sentence of death imposed on Muhammad Panah alias Panah as required by section 374 of the Code of Criminal Procedure. The appeal and the reference for confirmation will be disposed of by this order. The prosecution case against the appellants was that they had, on the night between the 12th and 13th of June 1956, entered the house of Muzaffar and there caused him injuries which killed him on the spot. First information report about the occurrence was made on the 13th of June 1956, at 7 a.m., at Police Station Pindi Bhattian, which is at a distance of six miles from village Mirza Bakhshnika where the murder took place, by Sabri, a maternal uncle of Muzaffar deceased, who claimed to be an eye‑witness of the occurrence. The report stated in clear terms that the three appellants and the two acquitted accused had entered the house of Muzaffar, carrying kulharis and spears, and had caused fatal injuries to Muzaffar whose death was instan taneous. The report further said, in addition to some other things, that besides the informant, the fatal assault had been witnessed by Ghulam, Baoari, Ahman and Mst. Fatima. At the trial, the eyewitnesses account of the occurrence was given by Sabri (P. W. 11). Ghulam (P. W. 12), Bagari (P. W. 14) and Ahman (P. W. 15). The prosecution also relied on the statement which Mst. Fatima, a sister of Muhammad Panah and Mirza appellants, had made in the Court of the Committing Magistrate and this statement was admitted in evidence because Mst. Fatima died before she could appear as a witness in the trial Court, and section 33 of the Evidence Act was held by the learned trial Judge to be applicable to the statement. Besides the direct evidence, the prosecution relied on the recovery of a hatchet at the instance of Muhammad Panah and a spear at the instance of Husain appellant. These weapons, when subjected to Chemical examination by the Chemical Examiner to the Government of West Pakistan, were found not to be stained with human blood, but the learned trial judge used those recoveries against the appellants as he was under the impression that the Chemical Examiner had found blood on the weapons. The learned trial judge referred to two reports in this connection, namely, Exhs. P. M. and P. N., and described both of them as reports of the Chemical Examiner wherein, according to the learned trial judge, it was mentioned that the weapons were stained with human blood, but the record shows that those reports did not state that the weapons were stained with blood much less that they were stained with human blood. The evidence of the recoveries, therefore, is of no avail to the prosecution and has to be, kept out of consideration. When questioned to explain the prosecution evidence against them, the appellants, both in the Court of the Committing Magistrate and that of the learned trial judge, professed their innocence. They ascribed the case against them to enmity, but led no evidence in defence. The motive for the murder of Muzaffar was stated by the prosecution to be the abduction by him of Mst. Fatima the sister of Muhammad Panah alias Panah and Mirza appellants whose hand had been promised to Husain appellant, It is established by the evidence on the record that about two and a half years before his death, Muzaffar had run away with Mst. Fatima on the night previous to the one on which he: marriage was to be performed with Husain appellant, but the relatives of the parties exerted their influence acid Mst. Fatima was returned to her brothers a few days later. Shortly after a case of abduction was started against Muzaffar and one day when Mst. Fatima was on her way to Court for giving evidence she was again abducted by Muzaffar deceased who and some others were sentenced to three year's rigorous imprisonment for the offence of abduction, but were acquitted on appeal. The police had some members of the two parties bound down under section 107 of the Code of Criminal Procedure to guard against breaches of the peace which were imminent because of the strained relations between them. It is clear from the evidence on the record that the relations between the parties were very strained and it can hardly be doubted that the appellants had a strong motive to do away with the deceased, but the mere fact that a strong motive existed would not be very material unless the evidence on the record established beyond all reasonable doubt that the appellants had participated in the fatal assault. Before dealing with the evidence led by the prosecution to connect the appellants with the murder of Muzaffar, I would dispose of a preliminary objection raised by Mr. Sleem with regard to the procedure adopted at the trial. He contended that the trial had, at least in part, been conducted by a police officer, who had taken part in the investigation and who had, in contravention of the provisions of the Code of Criminal Procedure, done some other things connected with the trial which the law enjoins the Public Prosecutor to do. Appearing as the 16th witness Police Station Pindi Bhattian, deposed to his having recorded the first information report at the dictation of Sabri (P. W. 11) and to his having proceeded to the scene of the occurrence as no Senior Police Officer was present. He deposed to certain other matters that were within his knowledge and according to the record, at the end of his examination-in-chief, he stated as follows:

"We give up all other witnesses and finally close the prosecution case. I tender in evidence the statements of the accused made in the Court of the Committing Magistrate". After the statement of Saeed Ahmad (P. W. 16) had concluded, Mr. Arif, the Public Prosecutor who is shown on the record to have been in charge of the prosecution, made the following statement :- "I finally close the prosecution case". Mr. Sleem urged that when Saeed Ahmad (P. W. 16) gave up some witnesses for the prosecution, he acted as a Public Prosecutor and, as section 270 of the Code of Criminal Procedure enjoins that in every trial before the Court of Session the prosecution is to be conducted by a Public Prosecutor, that section was contravened when the investigating officer performed a duty which the law required the Public Prosecutor to perform. He further urged that, as section 287 of the Code of Criminal Procedure was to the effect that examination of the accused duly recorded by or before the Committing Magistrate shall be tendered by the Prosecutor and read as evidence, the tendering of the statement of the accused by Saeed Ahmad (P. W. 16) contravened section 287 of the Code of Criminal Procedure and the trial was vitiated because of the contravention of the abovementioned two sections of the Code of Criminal Procedure. The giving up of some witnesses for the prosecution by the investigating officer and the tendering in evidence of the statements of the accused recorded by or before the Committing Magistrate by such police officer has been a peculiar feature of almost all Sessions trials held by Sheikh Muhammad Akbar and I have all, along had my doubts about the Public Prosecutor having asked from the investigating officer questions which elicited the replies that the police officer who is merely a witness gives up some of the prosecution witnesses and tenders the statement of the accused in evidence. A number of Public Prosecutors must have conducted Sessions trials before Sheikh Muhammad Akbar and I cannot bring myself to believe that all of them had followed the same unusual course of calling upon a witness to do what the Public Prosecutor should have himself done. But without saying anything further about the matter I would revert to the contention that the trial was vitiated because of the contravention of sections 270 and 287 of the Code of Criminal Procedure. In support of his contention that the trial was vitiated, the learned counsel for the appellants relied upon a decision of their Lordships of the Privy Council in Adan Haji Jama v. King (P L D 1997 P C 381), a case from the Protectorate of Somaliland, wherein it was remarked by their Lordships that the curative provisions contained in a Code of Criminal Procedure cannot be called in aid to support a trial conducted in a manner substantially different from that laid down by the law as the mode of trial. The procedure in trial of cases in Somaliland was governed by Criminal Justice Ordinance, 1926, Somaliland, which contained section 393 which corresponds in all material respects to section 537 of Code of Criminal Procedure. The trial which their Lordships had to consider had not conformed with the provisions of the Ordinance, because the prosecution had not been conducted by a Public Prosecutor and the Judge, who held the trial, undertook the examination of the pro secution witnesses, which, according to the provisions of the Criminal Justice Ordinance, 1926, should have been done by a Public Prosecutor. Dealing with the course adopted by the learned Judge, their Lordships remarked as follows :‑ "The absence of a Prosecutor necessarily involved a breach of section 226 of the Ordinance, since he could neither open his case nor examine his witnesses. It is to be observed, however, that the definition of public prosecutor in the Ordinance contemplates that there may be a prosecutor other than a Public Prosecutor regularly appointed by the Governor under section 356, and their Lordships cannot think that there would have been any overwhelming diffi culty in securing the services of some suitable person as prosecutor, and thus avoiding the acquittal of the accused for lack of evidence tendered against them. That course was not followed and the judge himself undertook the duties of the prosecution. This was the real vice in the trial. Breaches of particular provisions of the Ordinance might have been cured under section 393 but the combination in one person of the duties of prosecutor and judge, in their Lordships' view prevented the trial from being one conducted substantially in the manner required by the Ordinance. The accused did not have the protection to which they were entitled under the Ordinance, namely, to be tried by a judge whose mind was not, and could not have been, affected by assuming the duties of a prosecutor. The curative provi sions of section 393 of the Ordinance (which is expressed in substantially the same terms as section 537, Indian Criminal P. C.), cannot be called in aid to support a trial conducted in a manner substantially different from that laid down in the Ordinance. Pulukari Kotayya v. King‑Emperor (74 1 A 65). Their Lordships have no doubt that the trial judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a Judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence. The judge rightly refrained from cross -examining the defence witnesses, but it would be difficult for him unconsciously to avoid discounting some of their evidence on the ground that it might have assumed a different aspect if subjected to cross‑examination. The chance, perhaps a small one, that some witnesses might have impressed their veracity upon the Court by the manner in which they stood up to cross‑examination, was lost to the accused. It has‑been said many times that it is necessary not only that justice be done but that it may be seen to be done. The accused and their friends can hardly have felt assured that impartial justice could be meted out to them by a judge who was acting as prosecutor. Reference was made before the Board to the case in The Queen v. Hezell (1 Cox. C C 348) where Cresswell, J. seems, under protest, to have examined the prosecution witnesses in the absence of a prosecutor. But that case was tried by a jury, while in the present case the Judge himself had to try the case". I find nothing in the judgment of the Privy Council which might suggest that all breaches of law of procedure are incur able and indeed if they were so section 537 of the Code of Criminal Procedure would be meaningless because all things that are shown in that section to be curable are necessarily departures from the provisions of the Code of Criminal Proce dure. It appears to me that if during the trial there has been an irregularity as distinguished from an illegality, the trial is vitiated only if it is established that the departure from the procedure enjoined by law has resulted in prejudice to the accused person. If, however, the departure from the procedure laid down by law amounts to an illegality the ques tion of prejudice is immaterial and the trial would be vitiated without proof of any prejudice to any of the parties to that trial. The difference between an illegality and an irregularity was pointed out by me in Noor Din v. The Crown (1952 VII P L R 163: P L D 1952 Lah. 185) to be this that while the former was a serious and substantial disregard of the provisions of the Code of Criminal Procedure, the latter was merely a non‑compliance with the provisions of that Code with regard to a matter of a merely formal character, and nothing has been said at the hearing of this appeal to make me change that view. Apply ing this test, I have arrived at the conclusion that the departures from the mode of trial in the present case were mere irregu larities, and, therefore, the trial cannot be held to have been g vitiated unless it be established that the accused were prejudic ed in their defence. No doubt Saeed Ahmad (P. W. 16) stated that he gave up some of the prosecution witnesses, but shortly afterwards the Public Prosecutor made precisely the same statement and I cannot see how the accused could have been prejudiced in their defence by reason of the fact that before the Public Prosecutor made his statement with regard to the closing of the prosecution case, the investigating officer had made a statement to that effect. Further it is true that it was only the investigating officer who tendered the state ments of the accused persons recorded by the committing Magistrate in evidence at the trial and the Public Prosecutor said nothing about tendering those statements in evidence, but the record shows that the accused persons, when questioned by the trial judge about the statements which were sough; to be used as evidence at the trial, admitted having made them The statements of the accused before the committing Magis trate may have been irregularly brought on the record, but, as the correctness of that evidence was not questioned by the accused persons, I do not see how the irregular manner in which the statements of the accused made before the commit ting Magistrate were brought on the record of the learned trial Judge, could have prejudiced the accused persons. It is not without significance that Mr. Sleem did not say how the accused persons had been prejudiced by non‑compliance with sections 270 and 287 of the Code of Criminal Procedure in the present case and I, therefore, hold that the irregularities com mitted at the trial of the appellants were immaterial by reason of the fact that the accused had not been prejudiced in the defence. I now pass on to the consideration of the appeal on merits. As mentioned above, the prosecution case at the trial was supported by four persons as well as by the deposition of Mst. Fatima made in the Court of the committing Magistrate. None of the witnesses who appeared at the trial is shown to have any strong bias against the appellants and I do not see why their depositions against them should not be accepted in their entirety. It is true that it is improbable that all these four witnesses had seen the whole incident which they claimed to have done, but the mere fact that they had indulged in unimportant exaggerations is not sufficient for throwing out their statements. It appears to me that against Muhammad Pariah alias Panah and Mirza appellants the statement of Mst. Fatima was a very strong piece of evidence. She was their real sister and it is improbable that she would falsely accuse them of being the murderers of her husband. She may be said to have a motive to implicate Hussain appellant falsely, but her statement against her two brothers is, in my view, unassailable. It is true' that when Mst. Fatima appeared as a witness in the Court of the committing Magistrate she was not subjected to cross‑examination, but it is clear that the accused had an opportunity to cross‑examine her and if they choose not to avail themselves of that opportunity, her state ment does not become inadmissible in evidence nor does it lose any of its weight against the persons whom she would rather have saved even it they had committed an offence and whom she would not try to send to the gallows if they were innocent. The cumulative effect of the evidence relied upon by the prosecution to connect the appellants with the crime is that it is established beyond all reasonable doubt that the three appellants were liable for the injuries received by Muzaffar which resulted in his death. The dead body of Muzaffar was subjected to post‑mortem "examination by Dr. Fazal Muhammad, Sub‑Charge, Civil Hospital, Gujranwala, who appearing as the first witness for the prosecution at the trial deposed to having found thereon the following two injuries :‑ (1) An incised wound, 6'' x 3'' x bone deep, on the back of neck and right shoulder. On dissection the 4th cervical was seen cut throughout its thickness. The spinal cord was also cut. (2) An incised wound, 5" x 1" x bone deep, on the back and outer side right shoulder. On dissection head of the humerus was seen divided into two and scapula was cut in its upper part. The nature of these injuries leaves no manner of doubt that the person or persons who caused them had no other intention but to kill the victim nor can there be any manner of doubt that the persons, who entered the house, had the common intention of killing Muzaffar deceased. The conviction of the three appellants under section 302 of the P. P. C. was, there fore, entirely justified and is hereby maintained. This leaves only the question of sentence to be considered. Mirza and Hussain have already received the minimum punish ment prescribed by law for an offence of murder and as no question of reduction of their sentences arises, the only sentence that has to be considered is that of death passed on Muhammad Panah alias Panah. On the one hand, there is the fact that a sleeping man was attacked with dangerous weapons and done to death at the spot. On the other hand, however, there is the fact that the victim had given the relatives of Mst. Fatima grave provocation and it appears to me that that provocation though it was given ‑long before the murder, should not be lost sight of while determining whether or not the extreme penalty should be exacted from Muhammad Panah alias Panah appellant. Consequently I would decline to confirm the sentence of death passed on Muhammad Pariah alias Panah and reduce it to transportation for life. The result is that while the appeal of Mirza and Hussain appellants is dis missed, that of Muhammad Panah alias Pariah is accepted only to this extent that his sentence of death for the offence of murder is reduced to transportation for life. J. ORTCHESON, J.‑

I agree. A.H. Sentence reduced.