1969 PLP 424 (SCMR)

Jamil Hussain Rizvi, Advocate Federal Court for Appellant. Nemo for Respondent. Date of hearing : 24th February 1954. AKRAM, J.‑This is an appeal by our leave from a judg ment of the Chief Court of Sind confirming the conviction and the sentence of death passed on the appellant Muhammad Younis by Muhammad Bachal, J. agreeing with the unanimous verdict of the jury finding the appellant guilty under section 302, Penal Code. The prosecution case was that the appellant who was a servant of one Mama was instigated by him and his friend Asghar Ali to kill Akbar Ali deceased on account of some intimacy which he had contracted with Asghar Ali's sister Kubra; that the appellant accordingly stabbed Akbar Ali on 14‑12‑1948, at about 8 p. m. as a result of which he expired in the course of an hour or so. Counsel for the appellant contended that the identification of the appellant by P. Ws. 15 and 16 held by the police, and the mashirnamas prepared in connection with the same Exhs. 37/1 and 37/2 could not be used for the purpose of corrobo rating the said witnesses and that the statements, therefore, with regard to the said identification were inadmissible in evidence and should not have been used to the prejudice of the appellant. I am inclined to the view that the identification before the police during the course of their investigation is hit by the provisions of section 162, Cr. P. C. and as such is not admissible for corroboration; but this evidence seems to have been utilised by the defence counsel himself in the course of cross‑examina tion of P. Ws. 15 and 16 with a view to contradict them and to cast doubt upon their ability to identify the assailant. However, keeping this evidence out of view, there is the confes sion of the appellant (judicial and extra‑judicial), recovery of blood‑stained knife and clothes said to belong to him and strong incriminating statements against him by P. Ws. 7, 15, 16 and

19. It is for the jury whether they accept that evidence or not. I find no such misdirection and non‑direction in the charge as can be said to have resulted in an erroneous verdict and a miscarriage of justice. I accordingly dismiss the appeal. SHAHABUDDIN AND CORNELIUS, JJ.‑We agree that this appeal should be dismissed. It seems to us unnecessary in this case to express any opinion on the question whether section 162, Criminal Procedure Code, affects the evidence of the fact of identification of an accused person by the witnesses for the prosecution at a test held by the police, as even if the evidence as well as the mashirnama relating to such a test held in the present case in respect of the identification of the appellant by P. Ws. 15 and 16 are left out of consideration, the rest of the evidence clearly warrants the conviction. As for the contention that it could not be determined how far the above evidence did in fact influence the jury and, therefore, the possibi lity of the appellant having been seriously prejudiced could not be excluded, it has been observed in the decision of the Privy Council in Abdur Rahim v. Emperor (731 A77(91) that in view of section 167 of the Evidence Act the appellate Court must a reply its own mind to the evidence after discarding what has been improperly admitted and decide whether what is left justifies the verdict. One of the points in that case which their Lordships had to consider was the view taken by the Full Bench of the High Court of Judicature at Lahore that in a murder reference and an appeal under section 449, Criminal Procedure Code, from a jury trial the High Court could after excluding the evidence which had been improperly admitted maintain a convic tion provided the remaining evidence clearly establishes the guilt of the accused. In expressing their agreement with this view their Lordships made the observation referred to above and also stated that they saw "no need however to limit the answer to a murder reference and appeal under section 449 of the Code". It is true that the learned Judges of the Chief Court did not discard the evidence now objected to and consider whether on the rest of the evidence the verdict could be justified; but that was apparently because the objection raised before us was not raised before the learned Judges. However, there is nothing to prevent this Court from viewing the case on the principle of section 167 of the Evidence Act, and so doing we are satisfied that there is no reason for us to interfere. Appeal dismissed.