P (PLP)

MUHAMMAD MUNIR, C. J.‑Rahmat Khan and Ahmad Khan have been sentenced to death by the Sessions Judge of Attock on a charge of murder. They have also been sentenced to five year's rigorous imprisonment each for attempted murder. Both appeal. The appellants are brothers and Ahmad Khan is married to the sister of Dilawar deceased who was also a first cousin of the appellants. In June 1947 Rahmat Khan was attacked with a chhavvi by Dilawar deceased and his brother Behram Khan. The assai lants were prosecuted and convicted and Dilawar deceased was sentenced to two years' rigorous imprisonment which term expired making allowance for the usual reduction, near about May 1949. This attack is alleged by the prosecution to have led t9 the murder of Dilawar by both the appellants on 27th February, 1950. The evidence is that sometime before noon on that day Dilawar while he was planting tobacco in his field was attacked and killed with knives by the appellants who have their lands and houses near the field and the house of the deceased. There are two eye‑witnesses Abdullah Khan (P. W. 8) and Sher Bahadur (P. W. 9) and another witness Khan Bahadur (P. W. 6) who saw the appellants running back to their house after the murder. Abdullah Khan states that on the day of the occurrence while he was coming from the house of one Said Akbar he saw the appellants come from their house shouting at Dilawar who was engaged in planting tobacco in his field. Approaching the deceased they both attacked him with knives and when the witness by jumping over a small wall came to the assistance of the deceased Rahmat gave him a knife blow in the abdomen. The other witness Sher Bahadur also was coming by the path which passes near the tobacco field of the deceased: His evidence is to the same effect as that of Abdullah Khan. Both these witnesses are completely disinterested and no reason has been suggested in the course of arguments why their evidence should not be believed except that Abdullah Khan by reason of the fact that he was injured in the transaction is alleged to have become inimical to Rahmat Khan and in order to make the case more serious is supposed to have exaggerated the offence by falsely implicating Ahmad. We do not think we can reject the evidence of this witness on this ground. If he was completely disinterested before the transaction, the mere fact that he attempted to dissuade the appel lants from committing a murder and for this received a knife blow in return would not make him partial and induce him to implicate a completely innocent man in the crime. Ahmad Khan appellant denied his participation in the assault but Rahmat Khan alleges that there was a quarral between himself and the deceased over the boundary of their field, in the course of which they both fought and attacked each other with knives. No evidence in defence has been produced and the medical evidence makes it clear that the deceased received as many as eight stabs which could not have been caused if two men fought with each other with knives. Rahmat Khan himself had only a bruise on the back of his neck 2 " long, and skin deep. If the deceased also had been armed with a knife, and he was a younger man, Rahmat Khan would not have escaped with merely a scratch. The injuries to the deceased, therefore, make it highly probable that he was attacked by two men and found himself soon completely overpowered. Thus the evidence of the eye‑witnesses, who are wholly independent, receives corroboration from the wounds that were found on the deceased. We think the prosecution 'evidence was rightly accepted in this case and that the appellant's conviction both of the murder of Dilawar and the attempted murder of Abdullah Khan is good. At the very outset of his arguments Mr. Sleem questioned the legality of the trial on two grounds. The first of these is that the learned Sessions judge should not have, as stated in the record, read the commitment order in the presence of the assessors and that the reading of that order must be presumed to have pre judiced the assessors who assisted at the trial. The other objec tion relates to the manner in which the learned Sessions judge recorded the evidence. In support of his first point Mr. Sleem has referred to a case reported as Tumahole Bereng v. The King (1949 P. C. 172) in which an Administrative Officer who with a native assessor sat at the trial to assist a judge of the High Court of Basutoland was held to have disqualified himself from acting as an assessor because before and in anticipation of his appoint ment as an assessor he had accompanied the investigating officer to the scene of the crime and acquainted himself with the physical features of the spot and certain material aspects of the Crown case in the company of the approver and the Crown witnesses but in the absence of the accused. In giving his reasons why the trial was vitiated by the association of the Administrative Officer with the trial, Lord MacDermott observed "As counsel for the Crown said when dealing with this aspect of the case, it has not been shown that what Mr. Driver did before the trial prejudiced the appellants. But it might well have been thought, when his activity became known, ‑that he had come to Court with a biased mind in‑the sense of having formed a definite view as to what had occurred or as to the credibility of the witnesses whom he had observed or "questioned. It might also have been thought that he had been told more than could be legally proved, or that his interrogation of an accom plice might have had an effect upon the story as told by that witness afterwards at the trial. All this, of course, is in the realm of conjecture, but where the irregularity complained of may reasonably engender suspicions of this nature it cannot be left out of account, particularly when as here, the opinion of the officer could have been communicated to the judge in private". It is, therefore, obvious that there is no analogy between the reasons given for the vitiation of the trial in that case and the reasons put forward for a similar result in the present case. Assum ing that the commitment order was read in this case before the trial commenced, and beyond a recital of this fact in an order transferring certain papers to the record there is nothing to show that this actually took place, the mere reading of such order is no more than a statement of the prosecution case contained in the charge with the reading of which the trial commences or the opening of the case for prosecution by the Public Prosecutor under section 286 of the Code of Criminal procedure and, the reference by him to evid ence by which it is expected to be supported. It cannot possibly be said that merely because before the trial commenced the assessors came to the know what evidence against the accused had been given before the committing Magistrate, they became biased against him to the same extent as the Administrative Officer in Turnahole Bereng v. The King, who had substantially identified himself with the investigation. We do not, therefore, think that the trial was vitiated by this fact. The second objection is more serious and on the facts appear ing on record we cannot but find that the method adopted .by the learned judge in the preparation of the memorandum was irregular. But it does not follow from this that the irregularity had the effect of vitiating the whole trial. The relevant provision governing the mode of taking and recording evidence in trials before the Court of Session is section 356 of the Code of Criminal Proce dure which is as follows :‑ "356 (1) In all other‑trials before Court of Session and Magis trates and in all inquiries under Chapters XII and XVIII, the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions judge. (2) When the evidence of such witness is given in English, the Magistrate or Sessions judge may take it down in that language with his own hand, and unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record. (2A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record. (3) In 'cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes ; and such memo randum shall be written and signed by the Magistrate or Sessions judge with his own hand, and shall form part of the record. (4) If the Magistrate or Sessions judge is prevented from making a memorandum as above recorded he shall record the reason of his inability to make it." The plain meaning of this section is that the Sessions judge should himself take down the evidence of each witness in writing in the language of the Court. If he does not do so himself then the evidence must be taken down in the language of the Court in his presence and under his personal direction and superintendence. In either case it must be signed by him. If the evidence is not taken down in writing by the Sessions judge himself he is bound by subsection (3) to make a memorandum of the substance of what each witness deposes and such memorandum has to be written and signed by him with his own hand. If, however, he is prevented from making a memorandum as required by that subsection he has to record the reason of his inability to make it. In the present case the evidence was not taken down by the Sessions judge himself, but by his Reader in Urdu which is the Court language. So far, therefore, as the Urdu record is concerned, it seems to be quite in order because the evidence must be deemed `to have been taken in the language of the Court in the presence and hearing of the judge and under his personal direction and superintendence. The learned judge also prepared a complete record of the evidence in English but he did not write ft himself and only dictated it to a typist. Below the deposi tion of each witness he affixed a rubber stamp containing the following note :‑ "The evidence of the witness has been taken down and typed in my presence and hearing and under my personal direction and superintendence and at my dictation. I was prevented from making a memorandum in my own hand ax it is not physically possible for me to write for a long tune and in order to save public time and money ‑aa the statement of the witness was lengthy and also because unattested copies had to be supplied to the parties". This note amounts to a, complete misunderstanding of the provisions of section 356 of the Code of Criminal Procedure. The English record prepared by him cannot be said to be a compliance with subsection (1) of section 356 of the Code of Criminal Procedure because the language of the Court is‑Urdu and the typed record is not in that language. Secondly, the learned judge seems to think that no memorandum was prepared in this case. He is wrong in this assumption because where the language of the Court is Urdu the English record of evidence is intended to serve as a memorandum within the meaning of subsection (3) of section

356. Such memorandum need not be in the language of the Court but it must be written and signed by the Judge with his own hand. According to the Darned Judge's reading of section 356 there should leave been three records: 1. the Urdu record which is the original record ; 2. the record of evidence in English ; and 3. the memorandum in the handwriting of the judge. No such triplicate record is contemplated by section

356. The only additional record that is required besides the Urdu record if that record is not prepared by the judge himself is the "memorandum." The word "memorandum" means a note to assist the memory and in its legal use a brief note of some transaction. So far, therefore, as the Code of Criminal Procedure is concerned what is required is a brief note of the evidence given by each witness and not an in extenso reproduction or translation of the evidence given by the witness. By paragraph 5 of Part E, Chapter I, Volume III of the Rules and Orders, the High Court expects every Sessions Judge, District Magistrate and Magistrates exercising powers under sec tion 30 of the Code of Criminal Procedure to keep a memorandum of the evidence in English which should be as full as possible and Magistrates are not considered eligible for enhanced powers under section 30 unless they keep a proper record in English. The essential legal requirement, about this memorandum, however, is that it must be written and signed by the Judge with his own hand. In the present case the English record should have been considered to be a memorandum and the question is whether the learned Sessions judge was right in having dictated it to a typist. Under the law as it stands at present it must be held that a memorandum dictated to a typist cannot be said to have been "written" with the judge's own hand: This brings us to the question whether the judge was prevented from making a memo randum with his own hand. The reasons given by the learned judge are that it was not physically possible for him to write for a long time, and that the course adopted by him was necessary to save public time and money because the statement of each witness was lengthy and unattested copies of depositions had to be supplied to the parties. The statement that the deposition of each witness was lengthy is definitely wrong because some of the depositions do not exceed a few lines. In the case of Fazal Elahi (P. W. 4), for instance; the deposition extends to four lines while the reasons given by the learned judge f6r not taking down the deposition with his own hand exceeds the deposition by two lines. Nor do we think that the judge was right in saying that it was not physically possible for him to write such deposition. If the evidence could be recorded by his Reader in Urdu, the Judge could do the same in English. Physical impossibility cant only mean physical incapacity and not merely physical inconvenience I. We are also not inclined to accept the explanation that public time is saved by a judge in not writing the memorandum himself but dictating it to a typist while the full record of evidence is being taken down in Urdu. In the same way it is somewhat difficult to understand how public money is saved when unattested copies of depositions at much cheaper rates are supplied to parties for regularly certified copies' In the present case the learned judge cannot even be said to have recorded the reason of his inability to make the memorandum. What he has done is, not to have written a notice to that effect but to have got prepared a rubber stamp, with a uniform formula inscribed on it which the Reader puts at the end of each deposition. We must, therefore, hold that the provisions of subsections (3) and (4) of section 356 have not been complied with in this case. Now what is the effect of this finding on the case? If there had been any allegation that the omission to prepare the memo randum or the preparation of the memorandum in a wrong form has led to the preparation of wrong record of evidence, we would have, in the light of the nature of that allegation and the possibi lity of its being well founded, considered the question whether the convictions should be set aside. Section 537 of the Code of Criminal Procedure, however, enjoins us not to reverse or alter in appeal or revision arty finding, sentence or order passed by a Court of competent jurisdiction merely on account of any error, omission or irregularity in any proceeding before or during the trial unless such error, omission or irregularity has in fact occasion ed a failure of justice. As, therefore there is no suggestion of any possible failure or miscarriage. of justice, we cannot quash the conviction. Accordingly the appeal is dismissed and the sentences of death are confirmed. Before we sign this judgment we wish to impress upon the Legislature the immediate necessity of amending section 356 of the Code of Criminal Procedure to bring it in accord with modern conditions and formally recognise a practice which has existed for more than a quarter of a century. This section last received the attention of the Legislature in 1898 and its provisions requiring the judge to write the memorandum of evidence with his own hand are obsolete as such memorandum in all important cases is dictated by the judge either to a typist or to a stenographer who subsequently transcribes it in longhand. As compared with a handwritten memorandum a typed record is cleaner and more easily legible and the original record in Urdu is a sufficient check against any possible mistake,, in the typed record in English. There is, therefore, no use in keeping alive an antiquated provision, the existence of which is recognised by the Courts more in the breach than in the observance of it. A. H. Appeal dismissed.