P L D 1952 Federal Court 71 (PLP)

ABDUL RASHID, C. J,‑This is an appeal, by special leave, from a decision of the High Court of judicature at Lahore, dated the 13th December, 1950, confirming the sen tence of death awarded to the appellants under the provisions of sections 302/34 of the Pakistan Penal Code by the Addi tional Sessions Judge of Lahore. In order to appreciate the question of law involved in this appeal, it is necessary to state the facts of the case in some detail. The deceased, Amir Ali, was a big zamindar. He used to reside at Kot Amir Ali, which is situated at a distance of about 2 miles from Nankana. Amir Ali was a Lambardar and was responsible to Government for the payment of the land revenue relating to the village of which he was the Lambardar. He had paid the greater part of the land revenue from his own pocket. On the 6th of August, 1949, he left Kot Amir Ali at about 8/30 a.m. for Nankana in order to make an application to the Tehsildar for the recovery of land revenue from the defaulters. Amir Ali had figured as an accused person in a case relating to the murder of Raja in the year 1945. .He was, however, acquitted. Since his acquittal he entertained the fear that the relatives of Raja deceased might wreak vengeance on him. He. therefore, always used to go about in the company of three or four friends or rela tives. On the day of occurrence, when he started for Nankana, he took his tenants Saidu Naul (P. W. 3), Nawab (P. W. 8J, and Ibrahim with him. Muhammad Sadiq (P. W. 2),'a cousin of his, also accompanied him because he owed some land revenue and had to settle accounts with the Patwari. Muhammad Sadiq, according to his own statement, accompanied Amir Ali deceased for purposes of protection also. He owns a gun and has a licence for the same. He, however, did not take this gun to Nankana when he accom panied Amir Ali. The deceased and Saidu Naul were riding on two mares and the others were walking in their company. The party reached Nankana at about 10‑0 a.m. The two mares were tied in the Mandi outside the shop of Dil Muhammad (P. W. 10), and Amir Ali and his companions proceeded to the Tehsil. On his arrival there, Amir Ali got a petition addressed to the Tehsildar drafted by a petition writer. He found that the Tehsildar was not in his Court room at the Tehsil. He, therefore, proceeded with his comp anions to the house of the Tehsildar, which is at a distance of about 1 mile from his Court. After presenting the petition to the Tehsildar in his own house, Amir Ali returned to the Mandi with his companions at about 11 o'clock. The party stayed there till about 3‑30 p.m. when all of them left for their village. On their way back they met Sada Kharal (P. W. 9). He was also riding. Amir Ali and Saidu Naul were 6 killas (about a quarter of a mile) ahead of the others. When they reached a place known as Kot Lehna Das they saw a man near the water‑course who came up to Saidu Naul and began walking by his side. Saidu Naul at this time was a few yards behind Amir Ali. Suddenly this man caught hold of the reins of Saidu Naul's mire which :eared and fell on its back. Saidu Naul was thrown off. The stranger then seized Saidu Naul and shouted for others to come out. Ali and Bashir appellants then emerged from some bushes nearby. They were both carring guns and were riding on mares. These persons surrounded Amir Ali, but he galloped off towards Nankana followed by Ali and Bashir. He was ultimately rounded off at a short distance when Ali shouted to Bashir to shoot. Bashir shot Amir Ali and felled him to the ground. Ali accused dismounted and tied the body of the deceased into a bundle with his turban. An effort was made to carry away the body, but it failed. At this stage two other persons, namely, Najabat and Asghar, accused emerged, riding one mare, from a sugar‑cane field near the bushes where Ali and Bashir had been hiding. Najabat and Asghar were tried with the appellants for the murder of Amir Ali, but they have been acquitted. The two unknown persons, one of whom had taken hold of the reins of Saidu Naul's mare and another who had helped, have not been traced. The case for the prosecution rests on the testimony of four eye‑witnesses, namely, Sadiq, Saidu Naul, Nawab, and Sada Kharal. Three of these witnesses are alleged to have accompanied the deceased throughout his journey from Kot Amir Ali to Nankana and back to the place where he was shot dead, while Sada Kharal is alleged to have joined the party on their return journey. The basis of the case for the prosecution is that three of these eye‑witnesses never let the accused out of their sight from the time that they started from Kot Amir Ali till the time when he was killed. The fourth witness, namely, Sada Kharal, was with the deceased at the time of the assault. Chaudhari Muhammad Ashraf, Tehsildar, was examined as a prosecution witness at the trial. He stated that Amir Ali deceased had visited him at his house at 9‑0 or 10‑0 a.m. at Nankana. He had also visited him at 4‑0 or 5‑O p.m. in the afternoon. The second visit was not mentioned by any of the eye‑witnesses. This statement was made by Chaudhari Muhammad Ashraf on the 10th of July, 1950, before the Sessions Judge. Two eye‑witnesses, namely, Muhammad Sadiq and Saidu Naul, had been examined before the Tehsildar made his statement. As the Tehsildar's statement completely falsified the claim of Muhammad Sadiq and Saidu Naul that they had never let the deceased out of their sight on the day in question, it was open to the prosecution to elucidate this point from the testimony of the remaining eye‑witnesses, namely, Nawab and Sada Kharal. This, however, was not done. Muhammad Sadiq and Saidu Naul. who had been examined on the same day as the Tehsildar, were presumably still present in Court when the statement of the Tehsildar was recorded. They could have been asked then and there, on the 10th of July, as to whether they had any explanation to offer regarding the second visit of Amir Ali deceased to the Tehsildar which had not been mentioned by them in their statements. They were not recalled on that day. It is perfectly obvious, therefore that the prosecution did not make use of the opportunity that was available to them of clearing this glaring contradiction between the statements of the eye‑witnesses and the Tehsildar. It was known 4t the trial that the Tehsildar was a Govern ment official of position, that he was a disinterested person, and that his testimony would carry great weight with the Court. It was the duty of the prosecution, therefore, to request the Sessions judge to examine the eye‑witnesses then and there regarding the serious contradiction between the testimony of the Tehsildar and that of the eye‑witnesses. The whole foundation of the case for the Crown had been shattered. The prosecution, after the statement of the Tehsildar, could no longer claim that Muhammad Sadiq, Saidu Naul, and Nawab never let the deceased out of their sight. It was obvious that the absence of the mention of this incident from the statements of the eye‑witnesses would provide a ground for the defence to urge that the eye witnesses were not present on the scene of occurrence, and that the whole evidence had been fabricated at a later stage. This argument would be strengthened by the fact that two of the eye‑witnesses were the servants of the deceased, while the other two were his partisans, being related to him. After the case had been argued in the High Court at some length by Mr. Sleem, on behalf of the appellants, the following order was recorded by the learned judges :‑ "It is contended by the learned counsel for the appellants that the evidence of Muhammad Sadiq (P. W. 2). Saidu Noul (P. W. 3), and Nawab (P. W. 8), is contradicted by the evidence of Muhammad Ashraf, Tehsildar (P. W. 4) inasmuch as the first three witnesses say that they went with Amir Ali deceased to the house of the Tehsildar only once in the morning at about 10 a.m., and returned from there to the shop of Dil Muhammad (P. W. 10) at about 11‑0 a.m. They remained there till 3‑30 p.m. when they proceeded towards their village and on the way Amir Ali was killed at about 4‑30 p.m. Muhammad Ashraf, Tehsildar, has stated that Amir Ali came to see him again at 4‑0 or 5‑0 p.m. that day. We, therefore, consider it expedient in the interest of justice to examine Muhammad Sadiq (P. W. 8) Saidu Naul (P. W. 3) Nawab (P. W. 8), Dil Muhammad (P. W. 10) and Muhammad Ashraf, Tehsildar (P. W, 4) to elucidate this point. Let these witnesses be summoned for an early date and let the Tehsildar be directed to bring with him the petition presented by Amir Ali on 9th August 1949. Ch. Miran Bakhsh A. S. I. (P. W. 11) may also be called." The order reproduced above ignores several factors. It was well‑known that all the eye‑witnesses were interested persons. If they were allowed to give additional evidence, after the case for the defence had been argued at length in appeal, it was obvious that they would clear away the discrepancies and contradictions that were being made use of by, the defence in the High Court. No consideration was given to the fact that the contradiction referred to above had come to light before the statements of some of the eye‑witnesses had been recorded in the Sessions Court, and that it was due to the negligence of the prosecuting authorities that this point was not cleared up at the trial. To recall partisan witnesses to make additional statements at the appellate stage is an invitation for perjured evidence. Section 428 of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can therefore be expected to give an unbiased account of the occurrence. Reference may be made in this connection to the case of Re West Jewell Tin Mining Company (Weston's case), XL L T. R. p.

43. This was a liquidation case in which one Weston being a Director had received 500 fully paid‑up shares. The liquidator had summoned him under the Companies Act to show cause why he should not pay to the liquidator 1,000 , the nominal value of the shares, on the ground that he had been guilty of misfeasance or breach of trust towards the Company. In answer to this Weston made an affidavit stating that he purchased 500 shares from Greene in the ordinary way of business, paying him 1,000, which, he said, was at the time considered their full value ; that they were allotted to him direct by the company as the nominee of Greene, in accordance with the agreement between Greene and the company ; that he had never parted with any of the shares and never made any profit by them. He did not, however, say when he made the purchase of the shares from Greene. An application was made on behalf of Weston that he should be allowed to give an additional statement. Jessel, M. R., refused this request in the following words, and James and Bramwell, L. JJ., agreed with him :‑ "I will say one word more as to the application which was made to us to allow Mr. Weston to give further evidence. The application was refused by the Court on grounds which I think are sufficiently manifest. It was his duty to have given the evidence, if it could have been produced, in the first instance. It would be too dangerous to allow a man's single uncorroborated testimony‑for Mr. Greene, it appears, is dead, and there is no evidence producible from him‑to be admitted as evidence after it had been made manifest what was the turning point of the case ; and without at all imputing to the witness the slightest desire to state anything but the truth in a transaction which occurred so long ago as this, as to which memory alone can hardly be relied upon, we must recollect that he would be biased by his interest to recollect, or believe he recollected, that the transaction took place at a particular hour of the day which would make it legal, and not at an earlier hour which would make it illegal. Under those circumstances I think we should be badly exercising our discretion if we were to allow a witness to give further evidence in such a case." The case of Sanders v. Sanders XLV L. T. R. p. 637 con tains the following observations:‑ "The appellant's counsel, probably when they saw how the appeal would be decided, asked leave to bring fresh evidence. I think that application must be refused. In the first place it is an application for indulgence. The defen dant did not conduct his case as he might have done, and probably would have done, if be could have foreseen what would happen. But that is no ground for the application. It is extremely dangerous, after trial, to allow fresh evidence to be brought. Nothing seems to be more likely to lead to perjury than allowing such fresh evidence? The exact point on which the Court requires to be satisfied is known and, if evidence is allowed to be given on the point, there is a great temptation to invent the facts required. Nothing, in my opinion, is more likely to prejudice the interests of truth and justice." The point that was emphasized in both the cases was that if the evidence is of a partisan character there is a great temptation to the witnesses to invent facts that they are required to depose to. It does not make the slightest difference whether the additional evidence is required by the Court or is produced by the parties. In the present case, partisan witnesses could easily go to the place of occurrence between the 13th and the 24th of November, inspect the whole neighbour hood, and invent an excuse whereby they would be able to explain away the serious discrepancy referred to in the order of the High Court dated the 13th of November, 1950. On the 24th of November, the evidence of Chaudhari Muhammad Ashraf Tehsildar was recorded first in the High Court, and Muhammad Sadiq, one of the eye‑witnesses, was then examined. The case was thereafter adjourned to the 28th of November for the evidence of Nawab, Dil Muhammad, Sada, and Miran Bakhsh. On the 28th of November, as soon as the proceedings started, the learned judges recorded the following order :‑ "As the point that needed explanation has been clarified by the further examination of Muhammad Sadiq (P. W. 2), we do not wish to take any additional evidence except that of Chaudhari Miran Bakhsh Mr. Sleem, however, is at liberty to cross‑examine the witnesses on the point to explain which they were called." This order was taken by the counsel for the defence to mean that the additional evidence ' of Muhammad Sadiq had been held to be true evidence by the learned Judges, without hearing him on the point. Mr. Sleem, therefore, requested that he should be given an opportunity to contradict the evidence of Nawab and Muhammad Sadiq that on the day in question they went to the flour‑mill for a drink of water. This request was not acceded to by the learned Judges. The only reason given for not allowing the defence to produce evidence to contradict Nawab and Muhammad Sadiq was as follows:‑ "We do not think there is any occasion for rebuttal." It was urged by Mr. Sleem strenuously before us that there was every occasion for rebuttal as Nawab and Muhammad Sadiq had introduced a completely new incident into the case, that is, their visit to the flour‑mill. This incident had never found a place on the record until their evidence was recorded in the appellate Court. The defence could rebut this evidence in several ways. By refusing to give the accused an opportunity to rebut the evidence of these two eye witnesses, the learned judges had denied the substance of a fair hearing to the appellants. There is a great deal of force in this contention. It might have been possible for the defence to produce the owners of the flour‑mill or any persons who were present there from 3‑0 to 6‑0 p. m. on the day of the occurrence to depose to the fact that Nawab, Muhammad Sadiq, and Saidu Naul, never visited the flour‑mill. It might have been possible for the defence to establish that Muhammad Sadiq, Nawab, and Saidu Naul, visited this flour‑mill between the 12th and the 24th of November in order to fabricate false evidence. The defence might have been able to establish that these three witnesses received considerable sums of money to induce them to invent an incident which never took place. A shrewd guess that such evidence was unlikely to be available to the defence cannot be regarded as a good ground for refusing a fundamental right to which the accused were entitled during the course of the hearing of the appeal by the High Court. In my opinion, the High Court did not exercise its discretion properly in refusing to grant an opportunity to the defence to rebut the evidence of Nawab, Muhammad Sadiq, and Saidu Naul. This constituted a violation of the principles of natural justice and seriously prejudiced the case of the appellants. The order dated the 13th November, 1950, gives reasons as to why the eye‑witnesses should be recalled. The last line of the order, however, is that a "Chaudhari Miran Bakhsh (P. W. 11) may also be called." No reason is given why it was necessary to record his evidence afresh. We know that a serious discrepancy had arisen between the statements of Ch. Miran Bakhsh and Dil Muhammad as to the presence of Muhammad Sadiq at the place of occurrence when the police arrived on the scene. The statements of Chaudhari Miran Bakhsh and Dil Muhammad were recorded afresh in the appellate Court so as to fill in this gap. If additional evidence is taken in the appellate Court to destroy the effect of the cross‑examination to which the prosecution witnesses were subjected at the trial, it would lead to grave injustice. The provisions of sections 375 and 428 of the Code of Criminal Procedure are meant to be used in such a manner as to secure even‑handed justice to both parties. They should not be utilised to cure all the infirmities in the prosecution case in the appellate Court. I am of the opinion that the prejudice caused to the appellants by the procedure adopted at the hearing of the appeal in the High Court can only be remedied by eliminating all the evidence recorded in the appellate Court. This case must, therefore, be decided solely on a consideration of the evidence produced at the trial before the Sessions Judge. The next question which requires determination is whether the evidence recorded at the trial should be scrutinised by this Court, or whether the case should be remitted to the High Court for a rehearing of the appeal preferred by the con victs in that Court. It was strenuously urged by Mr. Sleem that the case should not he remitted to the High Court for a rehearing. In support of his contention Mr. Sleem relied on a large number of decisions of the Judicial Committee of the Privy Council. It is unnecessary for me to deal with all these cases at length. I would only refer to two cases which go strongly in favour of the appellants, In the case of Bhuboni Sahu v. The King, A I R (36) 1949 P C 257, the evidence against the convict consisted of, (a) the evidence of Kholli Behara who had taken part in the murder and had become an approver; (b) the confession of Trinath recorded under section 164 of the Criminal Procedure Code which implicated both himself and the appellant in the murder, but which was retracted in the Sessions Court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khautibadi, or instrument for cutting grass, in circumstances alleged to implicate the appellant. The whole of the evidence was carefully examined by the Privy Council and it was held that the recoveries and the confession did not provide sufficient corroboration of the evidence of the approver The appeal was accepted and the judgment of the Patna High Court was reversed. The case of Chainchal Singh v. King Emperor, (1944‑45) L R 72 I A 270, provides another instance where the Judicial Committee of the Privy Council examined the evidence on its merits, and after excluding the evidence of one witness, namely Lachhman Das, as inadmissible, relied on the testimony of two other witnesses and affirmed the decision of the High Court of Lahore. In this case Mula Singly one of the witnesses, had been disbelieved by the High Court. It was held by the Judicial Committee that the grounds given by the High Court for disbelieving this witness were unsound and that this witness ought to have been relied upon. The only case which supports the contention of the Advocate‑General is that of Pulukari Kotayya and others v. The King Emperor, (1946‑47) L R 74 I A

65. After an examination of all the authorities cited at the Bar, I am of the view that no hard and fast rule can be laid down in this connection. If the case is of such a nature that this Court has to examine the entire evidence on the record in order to determine whether the statements of some of the witnesses are inadmissible, or whether they should be eliminated from consideration on other grounds it would be only right and proper for this Court to deal with the case on the merits. After an examination of the entire record by this Court, it would not be justifiable to cause further delay and expense by remitting the case for a rehearing to the High Court. Further, if the case is a simple one and depends upon the testimony of a few eye‑witnesses, further delay and expense should be avoided. If, on the other hand, the consideration of the law points involved in a case has not necessitated a scrutiny of the statements of witnesses, or if the case requires an examination of voluminous oral and documen tary evidence, the case should be remitted to the High Court for rehearing. The examples given by me above are, however, to be regarded merely as illustrative of the point of view that I hold, they are not to meant be exhaustive. The observations; made in the judgments of the Privy Council in Dillet's case (1887) 12 App. Cas. 459 or Arnold's case (1914) A C 644, have no applicability to cases where a part of the evidence is found to be inadmissible by this Court or is to be eliminated from consideration on other grounds. As we had to examine carefully the entire evidence in this case in order to determine whether the evidence recorded in the High Court should be eliminated from consideration, it is not a fit and proper case which should be remitted to the High Court for a rehearing. After a careful scrutiny of the entire evidence, I have come to the conclusion that it has not been established with any reasonable degree of certainty that the eye‑witnesses were present on the scene of occurrence at the time of the murder of Amir Ali. The reasons for this conclusion have been given in great detail in the judgment of my learned brother Cornelius, J., and it is unnecessary to repeat them there. I would, accordingly, allow this appeal and acquit the appellants. AKRAM, J.‑This appeal, by our special leave, is from a judgment of the High Court of Judicature at Lahore, affirming the conviction and the sentence‑of death passed on the appel lants, Ali and Bashir, by the Additional Sessions Judge of Lahore, section 302 of the Pakistan Penal Code, for the murder of one Amir Ali, Lambardar, of village Kot Amir Ali, by shoo ting him through the chest. The case for the prosecution was that on the 6th August, 1949, at about 8‑30 a. m. Amir Ali accompanied by his cousin P. W. 2 (Sadiq) and three tenants, P. W. 3 (Saidu Noul), P. W 8 (Nawab) and one Ibrahim, left for village Nankana, about two miles away from his own village, Kot Amir Ali, as he wanted to present an application to P. W. 4 (the Tehsildar) for the purpose of realizing from certain defaulters the land revenue paid by himself on their behalf ; that Amir Ali when going out always used to take three or four men with himself as he apprehended danger from the accused and their relatives on account of an old grudge, which they bore against him over the murder of accused Ali's brother, Raja, about five years ago ; that Amir. Ali accordingly while going to Nankana took with himself the four persons aforesaid, viz., Sadiq, Saidu Noul, Nawab and Ibrahim, for his protection ; Amir Ali and P. W. 3 (Saidu Noul) were riding on mares, while the rest were walking on foot ; they reached Nankana at about 10 a. m. and tied their mares in the shop of P. W. 10 (Dil Muhammad) at the Mandi ; from there they went to the house of P. W. 4 (the Tehsildar), and returned to the shop of P. W. 10 (Dil Muham mad) at about 11 a., m., after taking rest there for some time they started back for Kot Amir Ali at‑ about 3‑30 p m., at the gate of the Mandi they met P. W. 9 (Saida Kharral) on a mare, making for his own village Khudiani ; Amir Ali requested him to join their party and go to Khudiana through Kot Amir Ali, though it meant taking a somewhat longer route. Saida Kharral agreed and when all these people had covered about 3/4th of a mile, the appellants and some others suddenly emerged from their hiding place ; Amir Ali upon seeing them turned back his mare again towards Nankana and began galloping away in that direction ; but he was hotly chased by the appellants, who were also riding on mares, was over‑taken and shot dead by appellant Bashir on the order of his uncle, appellant Ali; that thereafter P. W. 2 (Sadiq) wont to the Police Station, which was at a distance of about a mile from the place of occurrence, and made the report Exhibit P. A. at 5 p. m. giving the time of murder as 4‑30 p. m. The defence was that the prosecution had put up a concocted story ; that the eye‑witnesses were all false witnes ses, that they had not accompanied Amir Ali in his journey to or from Nankana ; that the murder might have been the work of the relatives of one Ahmad Khan, a Pathan , who was murdered some time in 1947 and in which Hayat son of Ali .vas strongly suspected. In the Sessions Court the main prosecution witnesses were the eye‑witnesses, Sadiq, Saidu Noul, Nawab and Saida Kharral (P. Ws. 2, 3, 8 and 9) ; according to P. W. 2, the return journey to Kot Amir Ali had commenced at 3‑30 p. m.; according to P. Ws. 3 and 8, at Peshiwela, and according to P. W. 9 at 4 p.m., P. W. 4 (the Tehsildar) however, in his cross‑examina tion stated as follows :‑ "Amir Ali came to me a second time the same day at 4 or 5 P.M., to remind me that immediate action be taken on his application. He was alone even at that time. I was in my room. I do not know if that application was given to the police or it is still with the baqi navis." Counsel for the appellants, therefore, while arguing the appeal before the High Court, strongly commented upon the disparity and ambiguity in the above evidence and also drew attention to the time of murder given as 4‑30 p. m, in Exhibit P. A. (the F. I. R.). The High Court, evidently impressed by the argument, passed the following order on 13th November 1950:‑ "It is contended by the learned counsel for the appellants that the evidence of Muhammad Sadiq (P. W. 2), Saidu Naul (P. W. 3) and Nawab (P. W. 8) is contradicted by the evi dence of Muhammad Ashraf, Tehsildar (P. W. 4) inasmuch as the first three witnesses say that they went with Amir Ali deceased to the house of the Tehsildar only once in the morning at about 10 a. m., and returned from there to the shop of Dil Muhammad (P. W. 10) at about 11 a.m. They remained there till 3‑30 p.m. when they proceeded towards their village and on the way Amir Ali was killed at about 4‑30 p. m. Muhammad Ashraf, Tehsildar, has stated that Amir Ali came to see him again at 4 or 5 p.m. that day. We, therefore, consider it expedient in the interest of justice to 'examine Muhammad Sadiq (P. W. 2), Saidu Naul (P. W. 3), Nawab (P. W. 8), Dil Muhammad (P. W. 10) and Muhammad Ashraf, Tehsildar (P. W. 4) to elucidate this point. Let these witnesses be summoned for an early date and let the Tehsildar be directed to bring with huff the petition presented by Amir Ali on 6th August 1949. Ch. Miran Bakhsh A. S. I. P. W. 11 may also be called." Accordingly, P. W. 4 (the Tehsildar) and P. W. 2 (Sadiq) were re-called on 24th November 19'0, questioned by Court, and cross‑examined by counsel, the Court then passed the following order:‑ "To come up again on the 28th for evidence of Nawab, Dil Muhammad, Saidu and Ch. Miran Bakhsh. A. S. I." On 28th November 1950, however, the order passed was:‑ "As the point that needed explanation has been clarified by the further examination of Muhammad Sadiq (P. W. 2), we do not wish to take any additional evidence except that of Ch. Miran Bakhsh. Mr. Sleem, however, is at liberty to cross‑examine the witnesses on the point to explain which they were called." P. W. 8 (Nawab),.P. W. 3 (Saidu Naul), and P. W. 10 (Dil Muhammad) were accordingly tendered for cross‑examination; P. W. 8 was cross‑examined, but the cross‑examination of the other two prosecution witnesses (P. W. 3 and P. W. 10) was declined and instead a prayer was made for being given an opportunity to adduce evidence in rebuttal. This the Court refused by the following order:‑ "Mr. Sleem does not wish to cross‑examine Dil Muhammad and Saidu, but says that he should be given an opportunity to contradict the evidence of Nawab and Muhammad Sadiq that on the day in question they went to the flour mill for a drink of water. We do not think there is any occasion for rebuttal". P. W. 11 (Chaudhary Miran Bakhsh, A. S. I.) was then ques tioned by Court and cross‑examined by counsel. After this was over, the Court passed the following order :‑ "In view of the evidence of Ch. Miran Bakhsh it is neces sary to put a few questions to Dil Muhammad who is present." P. W. 10 (Dil Muhammad) was then questioned by Court and cross‑examined by counsel. In the present appeal, counsel for the appellants urged be fore us that the order for additional evidence was not a proper order inasmuch as it afforded an opportunity to reconcile and supplement the evidence given by the prosecution witnesses ; that in the order dated 13th November 1950, for taking addi tional evidence no reason was assigned for recalling P. W. 11 (Ch. Miran Bakhsh), which is a contravention of section 428 of the Criminal Procedure Code, that in any event the refusal to allow evidence in rebuttal was unwarranted and unjustified and caused serious prejudice to the appellants. It was also hinted that the statement of P. W. 9 (Sajjad Hussain) before the com mitting Magistrate, was wrongly admitted into evidence by the Additional Sessions judge under section 33 of the Evidence Act. It is to be noticed that the case had come up before the High Court also on a reference under section 374 of the Crimi nal Procedure Code, and the appeal and the reference, as usual, were heard together. The power of the High Court to take additional evidence, when hearing a reference, is laid down in section 375 of the Criminal Procedure Code; that section is much wider in scope than section

428. Under that section no reason need be recorded for taking additional evidence or making further enquiries, and the matter rests solely in the dis cretion of the High Court. It cannot be said that the discretion ought not to have been exercised. I do not think, therefore that the appellants can have any legitimate grievance as regards the taking of the additional evidence or not recording any reason for it, but I am inclined to agree that the order of the High Court refusing to give an opportunity to adduce evidence in rebuttal, after the Court had put to some witnesses questions in the nature of cross‑examination, has highly prejudiced the appellants in their defence. I am consequently of opinion that the additional evidence should be excluded and kept completely out of view while considering this appeal. As regards the objection to the statement of P. W. 9 (Sajjad Hussain) being treated as evidence under section 33 of Evidence Act, I do not think the objection to be a valid one as the Sub‑Inspector (P. W. 12) had given evidence that the whereabouts of Sajjad could not be traced. I accordingly overrule this objection as without substance. Regarding the evidence which still remains on the record, after excluding the additional evidence, the following questions have been raised:‑ (1) What should be our proper mode of approach to it would it be merely to discover in the light of that evidence whether the decision has occasioned a grave and substantial injustice, or would it be to appraise the weight and value of that evidence in order to adjudicate upon the guilt or the innocence of the appellants like a final Court of facts; (2) In the former event i. e. if it is found to have occasioned such injustice, what should be the right course so as to con form with the practice of the Judicial Committee to decide the appeal ourselves or to remand it. It is beyond all doubt now that special leave to appeal in criminal matters cannot be granted "unless by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise substantial and gross injustice has been done", Dillet's case (1887) 12 A C 459 ; and that the appeal itself at the final hearing cannot be allowed except upon grounds sufficient for granting special leave to appeal. Lord Sumner in Ibrahim v. The King (1914 A C 599) stated :‑ "The Board cannot give leave to appeal where the ground suggested could not sustain the appeal itself ; and conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it." Similar view has been expressed by Viscount Haldane Dal Singh v. King‑Emperor (I L R 44 Cal. 876). His Lordship observed :‑ "The dominant question is the broad one whether substan tial justice has been done, and if substantial justice has been done, it is contrary to the general practice to advice the Sovereign to interfere with the result." It is clear, therefore, that in a criminal matter, whether it be an application for granting leave to appeal, or it be the appeal itself for final hearing, it is essential to satisfy the Court that substantial and grave injustice has been caused before it would interfere. In support of the proposition that the Federal Court, after excluding the wrongly admitted evidence should itself weigh and value the remaining evidence and dispose of the case on its merits, counsel for the appellants, cited the cases of Adan Haji v. The King, 1948 A C 225 ; Bhuboni Sahu v. The King A I R 1949 P C 257 ; Kwaku Mesa v. The King, A I R 1946 P C 20 ; In re Lubeck, 32 Ind. App. 217 ; Dwarkanath and another v. The Emperor, A I R 1937 P C 124 ; Basil Ranger Lawrence v. Emperor, A I R 1933 P C 218 ; Mahlikilili Dhalamini and others v. The King, A I R 1943 P C 124 ; Mahadev v. The King, A I R 1936 P C 242, and Chainchal Singh v. Emperor A I R 1946 P C

1. Reference was also made to three cases decided by this Court i.e. The Federal Court of Pakistan, viz., Ghulam Rasul v. The Crown, P L D 1951 F C 62 ; Ahmad v. The Crown, P L D 1951 F C 107 and Aminul Hague v. The Crown Not yet published. On the other hand, in support of the proposition that the proper course in such cases is to remit the case to the final Court of facts for a rehearing of the appeal, counsel for the Crown (the Advocate‑General of the Punjab) relied upon the cases of Pulukurz Kotayya and others v. King Emperor, 74 I A 65 and Thakur Shah v. Emperor, A I R 1943 P C

192. Regarding this controversy although no rule for its solution appears to have been expressly laid down anywhere, the nature of the orders passed by the Judicial Committee in the several cases cited before us affords valuable guidance as to the right course to follow. It becomes necessary, therefore, to examine the cases fully and carefully so as to ascertain the correct procedure. As to the cases cited for the appellants :‑ In Adan Haji clama v. The King, (1948) A C 225, the appellants were convicted and sentenced to death on a charge of murder; their appeal was dismissed and by special leave they preferred an appeal before the Privy Council. The main ques tion which arose was whether the trial was vitiated as the judge himself had undertaken the duties of the prosecutor owing to his absence at the trial, it was held that the two func tions of the judge and the Prosecutor could not be combined in one person and because of that as also because of the mode of trial, being in some other respects contrary to the provisions laid down by the Ordinance in force in the Somaliland Pro tectorate, their Lordships set aside the conviction and acquitted the appellants. (It is not without significance that although in this case "fifty five witnesses were called for the prosecution and nearly fifty for the defence" there is no discussion of any evidence or reference to any witness in the judgment). In Bhuboni Sahu v. The King A I R (1949) P C 257, the Patna High Court considered unsafe to rely upon the contra dictory statements of an accomplice supported by the retracted confession of the appellant, but convicted him as it found suffi cient independent corroboration from the discovery of the deceased's cloth and the recovery of a Khantibadi (some instrument commonly possessed by agriculturists) at the instance of the accomplice ; on appeal the Privy Council acquitted the appellant holding that neither the piece of cloth nor the Khantibadi connected him with the crime, nor did they afford such corroboration of the evidence of the accomplice as the rule of prudence required. In Kwaku Mansa v. The King A I R (1946) P C 20, on a conviction for murdur, when the evidence was considered as a whole, a question arose whether or not the offence might only be man‑slaughter that aspect of the case, however, not put to the jury, the Privy Council, on appeal, took the view that the failure to do so on such a matter of grave importance justified their interference and they accordingly altered the conviction from murder to man‑slaughter leaving the question of sentence to the Court of Appeal below. In re Lubeck (1904‑5) 32 I A 217, an Advocate was con victed for professional misconduct and suspended from practice for four months for not having advised his client to refrain from executing two documents which declared the estate to be joint one but was subsequently found to be separate property, the Privy Council set aside the conviction as pending a litigation the agreements amicably settled claims of a disputed and doubtful nature in reference to which the appellant had no actual or special means of knowledge and the "charges looked at in that light" could not be sustained. In Dwarkanath and another v. The Emperor A I R (1933) P C 124 the Patna High Court, convicted a doctor for perjury and a Sub‑Inspector of Police of conspiracy to fabricate false evidence and of fabricating the same. On appeal the Privy Council set aside their convictions, holding in the doctor's case that "there was no evidence of any kind upon which he could properly have been found guilty of perjury" and in the Sub -Inspector's case "that the case for the defence of the Sub- Inspector was not left to the jury and that there was no evidence upon which any jury could come to the conclusion that the Sub‑Inspector had conspired to fabricate or give false evidence." In Basil Ranger Lawrence v. Emperor A I R (1933) P C

218. An Officer was convicted at the Assizes for theft of money and false accounting; The Supreme Court of Nigeria, on a case stated, confirmed the conviction; on appeal the Privy Council set aside the conviction observing as follows :‑ "It is obvious that in the case of the first and fourth cheques there was evidence upon which a jury properly directed could find a verdict against the appellant of misap propriating 10 and 35 and necessarily in consequence, of false accounting in the counterfoils . . . . . . . . . . . In as much however as there would be evidence to support counts 3, 4 and 9 and 10, it would not be in accordance with their Lord ships principles in dealing with criminal appeals to interfere with the conviction if the appeal rested on this objection alone (misjoinder of charges.) A more important objection is that throughout the judge's charge, he did not give the jury any direction at all as to the onus of proof or that the accused was entitled to the benefit of a reasonable doubt. . . . . . . . . . . Unless the judge makes sure that the jury appreciates their duty in this respect, his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty given by a jury who have not taken this fundamental principle into account, is given in a case where the essential forms of justice have been disregarded . . . . . . . . . . . It is true that there was, evidence against the accused, but a close scrutiny of the evidence fails to satisfy them that upon a proper direction the jury might not reasonably have come to the conclusion that the guilt of the accused was not estab lished beyond a reasonable doubt . . . . . . . . . . . . . . But in addition to this vital defect in the procedure . . . . . . . . . . . the sentence passed for felony in the absence of the accused is totally invalid." In Mahlikilili Dhalamina and others v. The King A I R 1943 P C 4, on a charge of murder the two Administrative Officers who were to assist at the trial gave their opinions to the judge privately in his chambers and not in open Court contrary to the provisions of the Swaziland High Court Procla mation, the accused were thereupon convicted and sentenced to death, the Privy Council on appeal held that the error amounted to a disregard of the forms of justice such is led .to substantial and grave injustice and set aside the conviction and sentence. In Mahadev v. The King, A I R 1936 P C 242, the accused was convicted of murder by the Supreme Court of Fiji Islands. The only evidence as to the actual commission of the crime was given by a person, who was the servant of the appellant's father, and was himself charged as an accessory after the fact ; his silence and failure to disclose to any one, soon after the occur rence, what he alleged he had seen, was construed by the judge at the trial as corroborative of his subsequent evidence implicat ing the accused ; upon appeal the Privy Council quashed the conviction on grounds inter alia that there was absolutely no corroboration of the evidence of the accessory; that no material to sustain a charge of murder as opposed to manslaughter existed and that there were certain other errors which resulted in a failure to observe "the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of criminal justice." In Chainchal Singh v. Emperor A I R (33) 1946 P C 1, the appellant was convicted of murder and sentenced to death. He appealed to the High Court, but was unsuccessful. He there upon preferred an appeal to the Privy Council. At the trial several persons were examined by the prosecution as eye‑wit nesses; one of them was Lachhman Das, whose evidence before the committing Magistrate was transferred to the Sessions' file under section 33 of the Evidence Act. The High Court relied upon this evidence and upheld the conviction. It was contended before the Privy Council that the evidence of Lachhman Das was wrongly admitted ; that if his evidence was discarded, the appellant was entitled to acquittal, as the other evidence against him was not relied upon by the High Court. The Privy Council agreed with the first contention that the evidence of Lachhman Das was inadmissible but did not do so with the second conten tion, that other evidence was to be excluded from consideration and the appellant acquitted. It accordingly dismissed the appeal after making the following observations:‑ Before this Board will advise His Majesty to allow an appeal in a criminal case on the ground of the misreception of evidence they require to be satisfied that grave and sub stantial injustice has been caused thereby. In their Lordships' opinion there was ample evidence to justify a conviction in this case apart from Lachhman Das's statement, and they feel no doubt as to the guilt of the appellant." In Ghulam Rasul v. The Crown P L D 1951 F C 62 on appeal by the local Government from an order of acquittal in a charge of murder, the Lahore High Court convicted three of the accused under section 302 Penal Code and sentenced them to death, the remaining two were convicted and sentenced under section 506 of the same Code to rigorous imprisonment for 7 years each. On appeal to this Court (the Federal Court the convictions and sentences were set aside holding that the Divi sion Bench of the High Court was not validly constituted owing to a breach of the provisions of section 556 of the Criminal Pro cedure Code, and that the direct evidence of the crime supplied by the slender statement of a solitary witness P. W. 2 (Zainab Bibi), accused Ghulam Rasul's wife, was properly rejected during the trial as improbable and unreliable. In Ahmad v. The Crown P L D 1951 F C 107, the Lahore High Court, on appeal by the local Government convicted the accused of murder and sentenced him to death; on a further appeal by the accused the Federal Court set aside the conviction and acquitted the appellant as the circumstances were very similar to those as were present in the case of Ghulam Rasul v. The Crown. In Aminul Haque v. The Crown not yet published the accused was convicted on a charge of murder upon his own confession and sentenced to death. His appeal was dismissed by the High Court, and he thereupon preferred a further appeal to the Federal Court. It was held that the confession recorded by the Magistrate was not properly admitted into evidence under section 33 of the Evidence Act, and after excluding the same there was only a 'scintilla' of evidence left against the appellant in the nature of extra‑judicial confession which could not properly form the basis of a conviction ; the appellant was accordingly acquitted. As to the cases cited for the Crown. In the case of Pulukuri Kotayya and others v. King Emperor, 74 I A 65, on a charge of murder a confession was wrongly admitted into evidence by the Sessions judge in contravention of section 26 of the Evidence Act; on conviction some of the accused were sentenced to death, some others to varying terms of imprisonment ; they all appealed to the High Court of Madras, but it was dismissed; on further appeal to the Privy Council, the Judicial Committee discarded the confession and remitted the case to the High Court for rehearing the appeal after excluding the evidence improperly admitted (section 167 Evi dence Act), observing in the course of their judgment‑ "It was, therefore, the duty of the High Court in appeal to apply its mind to the question whether after discarding the evidence improperly admitted there was left sufficient to justify the convictions. The Judges of the High Court did not apply their minds to this question because they considered that the evidence was properly admitted and their Lordships propose therefore to remit the case to the High Court of Madras, with directions to consider this question. If the Court is, satisfied that there is sufficient admissible evidence to justify the convictions they will uphold them. If, on the other hand, they consider that the admissible evidence is not sufficient to justify the convictions, they will take such course, whether by discharging the accused or by ordering a new trial, as may be open to them." In Thakur Shah v. Emperor A I R 1943 (P C) 192, the appellant was convicted of abetting some person in the interpolation of certain documents (section 466/109 of the Penal Code), the Privy Council while dismissing the appeal observed as follows :‑ "But these are matters of the weight to be attributed to the evidence given and not considerations such as would influence their Lordships acting upon the principles which guide them in considering whether an appeal in a criminal matter should be allowed. So also the question whether the appellant's evi dence and the explanation should be accepted is one solely for the Courts in India and is not a matter with which their Lordships would interfere." From the above analysis it appears to me that though the Judi cial Committee looked into the evidence in criminal appeals, it did so only for the purpose of finding out the effect of the evidence on the decision arrived at by the Courts below, i. e., whether the decision given on that evidence resulted in grave and substantial injustice ; in none of the cases cited above, there is any detailed discussion of the evidence relating to corroboration, contradiction, .discrepancy or disparity, as one may expect to find in judgments deciding questions of fact, which for correct decision depend upon the credibility of wit nesses. The purpose of finding out from the evidence whether a grave miscarriage of justice has resulted is, to my mind, quire different from the purpose of determining which of the several versions is the more likely one to be correct. For the determi nation of the question as to which version is correct, it would become necessary to weigh, value and appraise evidence and if that is to be done, the dictum in Dillet's case, so often re peated, would become quite valueless and of no utility. After giving my best consideration to the cases cited before us, the conclusions which I have been able to draw are as follows : ‑ Where grave and substantial injustice is found to have resulted‑the Court would finally dispose of the appeal itself, if upon legal grounds or legal principles, it is in a position to do so, e.g., when :‑ (a) there is no legal evidence in support of the conviction or the evidence is such that it cannot properly form the basis of a conviction ; or (b) the Court acts without jurisdiction or is not validly constituted ; or (c) the trial held is vitiated by a violation or disregard of the fundamental principles of criminal justice ; but if no such ground or principle, as aforesaid, justifying direct interference is found to exist, the Court is not to be guided "by its own doubt of the appellant innocence or suspicion of his guilt"‑Arnold v. The King Emperor 1914 A C 644 and would, as a general rule, send back the appeal for its rehearing after giving such directions as may be necessary. Turning now to the present case, out of the 12 witnesses examined in the Sessions Court, 4 were of a formal nature (P. Ws. 1, 5, 6 and 7), of the remaining 8, the High Court recalled six with the exception of P. W. 3 (tendered only for cross -examination), the rest were all questioned and cross‑examined; some of the questions put, were in the nature of cross- examination which had the effect of nullifying the benefit of what may have been stated by the witnesses earlier in favour of the appellants ; at the same time the prayer for an opportunity to adduce evidence in rebuttal made by the defence was rejected; all this, in my opinion was plainly wrong procedure violation of the "fundamental rules of practice" necessary for the " safe administration of criminal justice", Mahadev v. The King, A I R 1936 P C

242. The question which now arises is, what should be the right course for us to follow so that it may be in conformity with the practice of the Judicial Com mittee, in cases in which there still remains ample evidence on the record after excluding the offending evidence. According to what I have already indicated in an earlier part of my judgment, the proper course would normally be to send back the case to the High Court for its re‑hearing ; but looking into the case in its broad features, without entering into details, it seems to me that it may well be urged in view of the method adopted in the disposal of the appeal, that the High Court, itself, in some measure, was in doubt with regard to the, question of affirming the conviction of setting it aside upon they evidence as it stood on the record before the additional evidence was taken, and that the appellants, therefore, were entitled to the benefit of the doubt, the more so, as the assessors had given a unanimous opinion in favour of the appellants. In the above circumstances, as the prosecution appears to have failed to discharge the onus, which heavily lay upon it, of proving the guilt of the appellants beyond all reasonable doubt, I agree with the order setting aside the convictions and the sentences passed on the appellants. CORNELIUS, J.‑This appeal by special leave on behalf of two condemned prisoners Ali and Bashir raises two main questions. The first is as to the validity of the admission of certain evidence by the Lahore High Court, at the hearing of the convicts' appeal in that Court coupled with refusal of leave to the appellants to produce evidence in rebuttal. The second question is consequential upon the first. It may be briefly put as follows. If in relation to the first question, this Court decides that the additional evidence was not properly admitted and therefore must be excluded, is it within the special jurisdiction of this Court in criminal matters to examine and evaluate the balance of the evidence, for the determination of the guilt or otherwise of the appellants ? On the first question, it is undeniable that the Lahore High Court had jurisdiction, on its own initiative to admit additional evidence at the stage of the appeal, as it has done. As death sentences has been awarded, a discretionary power to do so, was available not only under section 428 of the Criminal Procedure Cede in relation to the appeal, but also under section 375 of the same Code in relation to the proceed ings for the confirmation of the death sentences. The terms in which the power is given by these two sections vary to some extent. Under section 428, the appellate Court may call for additional evidence "if it thinks additional evidence to be necessary" but must give reasons for its action. Under section 375, no reasons need be given but the additional evi dence required must be upon a "point hearing upon the guilt or innocence of the accused". The essential question for the, Court being in either case that of the guilt or innocence of the accused person, the distinction between the two sections in relation to this case is more apparent than real. In the present case, the High Court gave reasons in its order calling for additional evidence, indicating perhaps that power was exer cised under section

428. The limitations of that section are) obvious. Such an order, stating reasons, would operate to exclude evidence which is not directly relevant to such reasons. Certain action of the learned judges in this case affords scope for such a contention, but bearing in mind the existence of the larger power under section 375, and the primary importance of leaving untrammelled to the greatest possible extent, the power of a High Court in this respect, the argument cannot be allowed to prevail. There can be no argument, however, that such powers must he exercised judicially, that is to say, so as to preserve, in all respects, the essential fairness and even‑handed justice of the proceedings. A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or mistake. Of three Indian cases cited for the Crown, I consider it necessary to mention only two, namely, those of Ajit Kumar Ghose, I L R 1944 Nag. 809, where the Nagpur High Court held that evidence which had been wrongly shut out at the trial, could be let in by the appellate Court under section 428, Criminal Procedure Code, and Akhtar Hussain, A I R 1925 Pat. 526, where a learned Single Judge of the Patna High Court approved the action of a Sessions judge in betting in, at the stage of appeal, formal evidence of officials to fill up the gaps in the prosecution evi dence, there being little likelihood of such evidence being fabricated. Two cases cited for the appellants fall under the principle that anything in the nature of an investigation by the Court de novo is to be avoided In that of Konda Reddi, A I R 1930 Mad. 854 the action of a Sessions judge, quashing the convictions of an appellant, framing a charge of a quite different kind and ordering fresh evidence in relation to such charge, was strongly disapproved. The same High Court in the case of Hanumanthappa A I R 1937 Mad. 181 reversed the order of an appellate Magistrate who, after holding that certain liquor, the subject of the charge against the appellant had not been sufficiently established to be of illicit origin proceeded to call for additional evidence on the point. The English Court of Criminal Appeal has power to call additional evidence which it thinks "necessary or expedient in the interest of justice". I categorise below the cases cited in Archbold's Criminal Pleadings, Evidence and Practice, 1949 Ed. The commonest class is that of witnesses who were prevented by physical disorder from appearing at the trial (Allaway 17 Cr. App. R. 16, and Berry 18 Cr. App. R.65). Then comes evidence discovered ex post facto, and instance of such evidence being let in or the appeal are the cases of Kurasch 13 Cr. Apt). R. 13), where a witness was only discovered after the trial, Hullett 17 Cr. App R. 8, where a prosecution witness who had deposed at the trial was prepared to admit that 'her evidence was perjured, and Robinson 12 Cr. App. R. 226, where a letter written by the appellant while awaiting execu tion, in which $e admitted the commission of the crime, was allowed to be proved. A small category is that of evidence which could not be adduced at the trial, by reason of legal prohibition : an instance in the case of Hamilton 13 Cr. App. R. 32 where a witness was permitted to be cross‑examined as to credit, a step which could not have been taken at the trial. Lastly, there is the category of cases in which the requisite evidence was not led at the trial on account of a misunder standing as to the legal position, or rnis-appreciation of its relevancy and value. Instances are the case of Warren 14 Cr App. R. 4. where leave was given to the appellant to produce a witness who through misunderstanding was not produced at the trial, and the case of Ward 17 Cr. App. R. 65, where the charge being one of murder, it was suggested by the defence at the trial that before the alleged assault by the accused, the deceased had suffered injuries from falling of a cart. In ignorance of the nature of these injuries, no evidence was led in support of this allegation, but later evidence was found to be available to show that the deceased had actually sustained a. fracture of the skull in the fall. The Court allowed this evidence to be called at the appeal. Without suggesting that this brief catalogue of cases is ex haustive of the circumstances in which additional evidence may be called in appeal, I regard it as a useful guide for the exercise of judicial discretion, in departing from the general rule that the contest, as respects evidence, should be confined to the trial. The Statute provides ample power for calling additional evidence in exceptional cases falling outside the types indi cated above. The need for extreme caution in this regard is obvious. Free use of the power easily degenerates into a Court investigation, than‑which nothing can be more danger ous for the dispensation of justice. The judicial function is to act on legal evidence duly brought before the Court. Collec tion of such evidence is the function of the parties, and an appellate Court which indicates to any party on what point its case needs to be completed or supported by further evidence if it is to stand, lays before such party "a great temptation to invent the facts required" Per Jessel M. R. In Sanders v. Sanders, 45 L T Rep.

637. The principal ground on which the appellants were granted special leave to appeal was that, having re‑examined a number of eye‑witnesses, the learned Judge of the Lahore High Court refused to allow the appellants to produce evidence in rebuttal, and the question had arisen whether they had had the sub stance of a fair hearing in their appeal. It is implicit in this question whether the admission of additional evidence was justified by the facts and circumstances of the case, either in whole or in part, and if so whether the denial of opportunity to rebut the new evidence amounted to a denial of justice so as to attract the special jurisdiction of this Court. For the examination of these questions it is necessary to examine at some length the facts of the case as appearing from the evidence, as well as the proceedings in the hearing of the appeal. This I now proceed to do. The deceased person in this case was named Amir Ali, and was a Lambardar of a village called perhaps after him Kot Amir Ali, which appears to be in fact an outlying abadi or off shoot of a larger village known as Abbianwala. The distance of each of these villages from Nankana, a fairly large Tahsil town in the Sheikhupura District, is two miles. There is a direct pacca road connecting Nankana with Abbianwala which lies to the south‑east of Nankana. Kot Amir Ali lies to the north of Abbianwala and may be reached from Nankana by means of a path branching off from the pacca road just outside Nankana town and going through the fields. Out of fear of deadly enemies of his who live in Abbianwala, namely, the present appellants and their family, Amir Ali invariably used the path going from the fields between Nankana and Kot Amir Ali. The enmity appears to be of some standing, but the most recent manifestation prior to the present occurrence was about the year 1946 when Raja brother of the present appellant Ali was murdered and Amir Ali and his sons Niamat and Shahadat were tried for the murder. Amir Ali was acquitted, but Niamat and Shahadat were each sentenced to transportation for life. Under present conditions, such a sentence involves at the most 14 years imprisonment and the period may be much less, depending upon the discretion of the Courts dealing with the case. The murder of Amir Ali is said to have been com mitted by the present appellants as an act of revenge for the death of Raja. The sentence awarded to Niamat and Shahadat were regarded by them as inadequate retribution. There need be no doubt regarding the strength and genuineness of the motive. Briefly the prosecution story as to the commission of the murder is as follows. Amir Ali had occasion on the 6th August 1949 to go to Nankana for certain business at the Tahsil con nected with his duties as a Lambardar. Living as he did in fear of his life be never went out unaccompanied and on this occasion he took with him as a bodyguard his cousin Muham mad Sadiq (P. W. 2) and three retainers Saidu (P. W. 3), Nawab (P. W. 8) and one Ibrahim who was not produced as a witness. The party reached Nankana at' about 10 a.m. None of them was armed in the sense of having means to meet a determined and hostile attack. It is admitted that two ordinary lathis were carried. Bearing the potential danger in mind, it is certainly a matter for comment that Muhammad Sadiq who had a licenced gun did not take it with him. The excuse is that, although the gun was mentioned at the last moment it was decided that it was more important to get to Nankana before the full heat of mid‑day than to fetch the gun, which would have taken a few minutes. Having finished the business at the Tahsil the party spent the afternoon at a shop in the grain mandi at Nankana belonging to Dil Muhammad (P. W. 10), one of the bradari of Amir Ali, and at least an ex‑partner of a true brother of the witness Muhammad Sadiq. In fact, Dil Muhammad's shop still bore the name of Muhammad Sadiq's brother Nazir Ahmad (P. W. 5) although it was said that there was no longer any partnership. The party left Dil Muhammad's shop at 3‑30 p.m. to return to Kot Amir Ali. Amir Ali and Saidu Naul were mounted on ponies, and the other three were on foot. As they emerged from the mandi, they met another person named Sada, of the same caste as Amir Ali, namely, Kharal, but a resident of Khudiana which appears to lie to the north of Kot Amir Ali. This man also was mounted. It is to be noted that there is a direct route from the mandi to Khudiana which is between three and four miles in length, whereas the distance via Kot Amir Ali has been put at between five and seven miles by Muhammad Shafi Patwari of Nankana. This disparity combined with Sada Kharal's professed disinterested ness has a bearing upon the question whether his going in the company of the others was at all probable. The distance from the mandi to an octroi post on the out skirts, of Nankana has been placed at three‑fourths of mile. Beyond that, distances are mentioned in squares, killas and kanals. Each side of a square measures 200 karams which is approximately one‑fifth of a mile. A kills is one‑fifth of a square, and thus equals 40 karams, say 220 feet or about one- third of a furlong. The exact measure of a kanal has not been elucidated on this record. A kanal is one‑eight of an acre by area and on this ‑reckoning since a kills by area is approxi mately an acre, a kanal might be thought to represent five karams or 25 feet in terms of length. The prosecution story then runs to the following effect. Amir Ali and Saidu Naul on their horses had got ahead of Muhammad Sadiq, Nawab, Ibrahim and Sada Kharal by' a distance which is variously put at three killas, four or five.killas and five or six killas by the four eye‑witnesses. Taking a mean, the interval between the two groups might be placed at a furlong and a half, a very considerable distance, at this point Amir Ali and Saidu Naul had reached a place which is not less than 22 killas from the octroi post, or say a mile less furlong. At this place Saidu Naul was stopped and unseated from his horse by a man who just previously had been drinking water at a water course along which the path lay. This train who is described as a stranger to all the witnesses called out to his companions who were concealed in sarkanda (rough tall grass) about two killas or 2/3rds of a furlong to the north of this place. Saidu Naul immediately called to Amir Ali that the enemies had arrived, and Amir Ali at once turned his horse back towards Nankana and gallopad down the pathway for his life. He was pursued by the two horsemen whom Saidu Naul says he recognised as the present appellants Ali and Bashir who are uncle and nephew. The chase lasted until a point 3 killas or a furlong from the octroi post i.e., a distance of 19 killas or about fourth‑fifths of a mile, and witnesses in the second group professed also to have recognised the two appellants who they say passed them at a‑ distance which is variously given as six karats, three kanals and a killa or killa and a half. Assuming five karams equal a kanal, the minimum distance given is 15 karams and the maximum 60 karams. In broad daylight, recognition at either of these distances is readily possible, but it is by no means certain that the dis tances are being correctly given. For, the probability is that the persuers cut across country in order to overtake Amir Ali and in that case they need not have passed as close to these witnesses as the distances above mentioned might indicate. Ali and Bashir both had guns in their hands and left no doubt by their conduct that they were out for murder. In ordinary circumstances, it would not be expected that persons who stood towards Ali and Bashir as the witnesses in this case did, would have chosen to go in the same direction as these two persons, particularly as they themselves were very lightly armed and mostly on foot. Saidu Noul's pony had run away after he had fallen. Sada Kharal stated that he "ran away" on his pony towards Nankana after seeing Amir Ali in that direction pursued by his enemies, and suggested that he did so in order to save Amir Ali. As this person professed disin terestedness, this statement is of doubtful veracity. These witnesses all say that they went down the path towards Nankana following after Amir Ali, and with the exception of Saidu Naul were able to watch him being intercepted by Ali and Bashir at the spot mentioned above from a distance of no more than three killas or a furlong. In other words, while Amir Ali and his pursuers had covered distances of 19 killas and 21 killas respectively going at full speed on their ponies, these witnesses being on foot, had covered about 12 killas. Such speed, in the circumstances, was not natural, and there are indications in the evidence of Sada Kharal that on the contrary the witnesses on foot hid behind some hayricks when the attack began. It is, in any case, remarkable to find persons representing themselves as eye‑witnesses of incidents which occurred in quick succession, at places four‑fifths of a mile apart. Yet, without such an effort, there would have been no witness to the actual killing. Saidu Naul was frank enough to admit that he did not see what happened at the place where Amir Ali was intercepted. He heard a gunshot after he had run a distance of about two squares, and was about 9 killas from the spot, and later when he had covered another 5 killas he, like the other witnesses saw the accused persons accompanied by two related co -accused who were acquitted, namely, Najabat and Asghar mounted on one mare and two unknown persons on foot going away from the spot towards the north. The other stranger who was on foot also came out from the vicinity of the sarkandas where Ali and Bashir are alleged to have hidden themselves before the attack. Both these men apparently were unarmed, and both passed by the group of the eye witnesses in order to reach the spot from where they are alleged to have joined the murderers. As for Najabat and Asghar they are said to have come out a sugarcane field about 3 killas from the scene of the murder towards the West. (The learned Sessions judge disbelieved the evidence led against Najabat and Asghar to show that they had been associated with Ali and Bashir in an effort to carry the body away and apparently acquitted them). The two unknown men were never traced nor is there any explanation on the record why in view of their obvious complicity in the design to waylay Amir Ali, the prosecution witnesses who at least had lathis could not have secured or at least attempted to secure them. The killing of Amir Ali is said to have been accomplished in the following fashion. Bashir having brought his mare across the path of Amir Ali's animal so that he had to pull up, Ali at once shouted to Bashir to shoot, and thereupon Bashir fired from close quarters a single shot at Amir Ali who fell down. Thereafter Ali dismounted and made a bundle of Amir Ali's body trying it in his own turban. He tried to lift the bundle on to Bashir's horse two or three times without success, and leaving the body there, the four men mounted on three mares went off followed by the two men on foot. There is undeniable force in the suggestion of learned coun sel for the appellants that the fact of and attempt being made to carry away the body argues the absence of observers, who could interfere or raise shouts for help, or, at any rate identify the culprit beyond doubt. It follows either that the deceased's alleged bodyguard was not with him at all, or if their alleged positions when the attack commenced be accepted, that they were entirely out of sight when Amir Ali was killed. The sight of the two gunmen who first appeared should have deterred them from advancing towards Amir Ali any tendency to such foolhardiness would, in any case, have been completely destroyed by the sight of the other two gunmen, Najabat and Asghar, whom Saidu Noul says he saw when he had gone forward, from the spot where he had fallen off his pony, the very short distance of three or four kanals. As the other wit nesses were some killas closer to Najabat and Asghar at this juncture, they too must necessarily have stopped at once, while they were yet about half a mile from the spot. The time given for the incident is 4‑30 p.m. and a report is said to have been made at the Thana 6 furlongs away at 5 p.m. by the witness Muhammad Sadiq. A. S. I. Miran Bakhsh says he reached the spot at 5‑45 p.m. and had the inquest report ready by 7‑30 p.m. when the body was despatched to the mortuary in Nankana. The post‑mortem examination was performed the following morning, when also the inquest report was handed over to the doctor. A single large wound of entry in the left chest, with three small exit wounds in the right back where individual pellets had escaped,. and small contusion and abrasion marks over the right and left knee joints, such as might have resulted from the fall, were the significant external injuries. Internally, a number of organs had been severely injured, including the heart, and some bones, including the sternum and several ribs, had been shat tered. The presence of four pieces of cartridge was inside the chest, coupled with absence of charming or blackening at the wound of entry, showed conclusively that the weapon was fired from a range of about four feet. These being the salient facts, as they appear from the evi dence at the trial, after the case had been argued in appeal before the High Court on the 1st and 2nd November 1950, the learned judges on the 13th November 1950 recorded an order in the following terms :‑ "It is contended by the learned counsel for the appellants that the evidence of Muhammad Sadiq (P. W. 2), Saidu Noul (P. W. 3) and Nawab (P. W. 8) is contradicted by the evi dence of Muhammad Ashraf Tehsildar (P. W. 4) inasmuch as the first three witnesses say that they went with Amir Ali deceased to the house of the Tehsildar only once in the morning at about 10 a.m., and returned from there to the shop of Dil Muhammad (P. W. 10) at about 11 a.m. They remained there till 3‑30 p.m. when they proceeded towards their village and on the way Amir Ali was killed at about 4‑30 p.m. Muhammad Ashraf Tehsildar, has stated that Amir Ali came to see him again at 4 or 5 p.m. that day. We, there fore, consider it expedient in the interest of justice to examine Muhammad Sadiq (P. W. 2), Saidu Noul (P.W. 3), Nawab (P. W. 8), Dil Muhammad (P. W. 10) and Muhammad Ashraf Tehsildar (P. W. 4) to elucidate this point. Let these witnesses be summoned for an early date arid let the Tehsildar be directed to bring with him the petition presented by Amir Ali on the 6th August 1949, Ch. Miran Bakhsh A. S. I. (P. W. 11) may also be called." This order is challenged as ultra vires of the High Court, on the ground that the defect in question was patent, and there was ample opportunity to remedy it, during the trial. The prosecution must be deemed to have been content to leave their evidence in that state. The High Court, therefore, did not need the additional evidence for deciding the point. The prosecution should not have been given an opportunity to repair the defect by further evidence. The reply for the Crown is that the additional evidence was necessary for deciding the case, and that, in any event, the High Court had absolute discretion to call it. The significance of the statement of the Tehsildar that Amir Ali visited him on the 6th August 1949 not once but twice, and that the second occasion was between 4 and 5 p.m., lies in the fact that the eye‑witnesses of the bodyguard who professed to have been in Amir Ali's company at Nankana throughout, had made no mention of this second visit at the trial or in arty earlier statement. On the contrary their story was that the party had left in a group from Dil Muhammad's shop at 3-30 p.m., and had proceeded in a group continuously up to the scene of the occurrence, without having either jointly or separately engaged in any other activity except walking or riding together at a slow pace. The unimpeach able evidence of the Tehsildar shows that Amir Ali had become separated from the others, at some time after the alleged departure from Dil Muhammad's shop and before the time given for the murder viz., 4‑30 p.m. Their ignorance of this fact cannot be explained otherwise than on the supposition that they were either not with him on that day at all or they had then become separated from him. In either case, the probability at once arises of Amir Ali being unaccompanied when he was killed. Now the witness Dil Muhammad was not examined by the police until a month and a half after the occurrence when he and one Sajjad, the owner of an adjoining shop, were questioned regarding the grouping of Amir All and his companions at Dil Muhammad's shop at about 3‑30 p.m., on the day of the occurrence. This clearly shows the anxiety of the police to investigate the allegation that the witnesses were in the company of Amir Ali at or about the material time. The investigating officer Ch. Miran Bakhsh (P. W. 11) admitted that in their first statements none of the witnesses had mentioned either Dil Muhammad or Sajjad. Obviously, the importance of obtaining corroboration of their allegation of grouping was not realised until five weeks after the occurrence and the presumption would be that the investigation then specially carried' out would bring to light all the movements and doings of the group from the time of their departure from the Mandi up to the time of the occurrence. Yet, nothing was apparently elicited from the witnesses concerning the second visit to the Tehsildar, even at this stage. The omission was not due to ignorance. It appears from the judgment of the High Court that the Tehsildar mentioned the second visit in his first statement to the police. Therefore, a reason has to be proved for the police failing to question the 'bodyguard' witnesses on this point during the investigation. The Tehsildar again made the same statement in the Committing Court, where there also was opportunity to elicit information from the `bodyguard' witnesses on the point. At the trial, two such witnesses Muhammad Sadiq and Saidu Noul were examined just before the Tehsildar gave his evidence on the 10th July 1950, and mentioned the second visit. Both these witnesses, who were presumably present (as the Tehsildar was followed by several other witnesses examined en the same day) could have been recalled for questioning on the point that very day, or on the next day, the third man Nawab was examined. No question was put to Nawab on the point. The learned judges of the High. Court did not ask for reasons why these three consecutive opportunities for obtaining evidence from these persons on the point had been neglected. Indeed, no occasion arose for such enquiry, as the witnesses were recalled not at the request of the Crown, but suo moto by the Court. In this Court, the learned Advocate‑General appeared to suggest, by way of explanation, that the conflict of evidence did not strike anyone connected with either the pro secution or the defence until the case was argued before the High Court. I am entirely unable to accept this explanation. The point having clearly been made in the evidence on two occasions by the defence, and going as it did to the root of the question whether the bulk of the eye‑witnesses were at all present on the spot, it can hardly have been ignored in pre senting their case. It is true that the particular point is not mentioned in the judgment of the Sessions Judge, but the general question of the grouping of the bodyguard witnesses, of which it forms a part, was fully argued, as appears from the lengthy treatment given to it in that judgment. The allegation that the bodyguard witnesses were with Amir Ali throughout the day at Nankana is placed in doubt also by another circum stances, on which stress was laid for the appellants. The witnesses said they visited the Tehsil (office) first that day and there Amir Ali got an application written out, which he then took to the Tehsildar's house at about 10‑30 a.m. The Tehsildar, confirming this visit, said the application was presented to him personally and "he sent it to the Wasil Bagi Nawis" for necessary action. In his supplementary evidence, the Tehsildar made it clear that he had handed the application back to Amir Ali to be delivered to the Wasil Bagi Nawis. At the second visit, Amir Ali urged that immediate action should be taken on his application, and it was argued for the appellants that this furnished strong proof that the application had been delivered at the Tehsil. This was further confirmed by the fact that the application was not found on Amir Ali's person after his death. Basing on these facts, it was contended that Amir Ali or someone on his behalf, but most probably Amir Ali himself, must have paid a second visit to the Tahsil that day. The witnesses do not mention a second visit to the Tahsil, or any steps taken to reach the application to the Tahsil. This, it is argued, furnishes further proof that their story of acting as a bodyguard to him throughout the day is false. As they are partisan witnesses, the doubt goes to the credibility of their entire evidence. The witnesses having appeared in response to the order of the High Court, the first to be examined was the. Tehsildar. Much of his statement is recorded in the form of question and answer, and learned counsel pointed out that a good deal was of the nature of mere investigation into the facts, which were properly the subject matter of enquiry at the trial. On the particular point of the time of the second visit, the Tehsildar was now more specific than at first viz. he said Amir Ali visited him some 10 or 15 minutes before 5 p.m. This state ment would obviously have a bearing on the time given for the occurrence, namely, 4‑30 p.m. The learned Judges appear to have been dissatisfied with the Tehsildar's statement, as would appear from the following questions and answers extracted from the statement recorded by them :‑ "Question .‑If it is pointed out to you that Amir Ali was killed at 4‑30 p.m. at a spot about a mile away from your house, and the report relating to his murder was recorded at Nankana Police Station, a mile away from the spot at 5 P .M., would you be prepared to admit that either you have made a mistake about the time of his second visit or your clock was wrong ? Answer.‑It is possible that my clock was wrong. Question.‑Is it possible that you looked at the clock more than fifteen minutes after the departure of Amir Ali ? Answer.‑I looked at the clock when it began to strike. It was then 5. o'clock. Question.‑Did you make the statement in the lower Court that Amir Ali came to you a second time the same day at 4 or 5 p.m. ? (Statement read out) Answer.‑I did make that statement. Question.‑Is it correct then that Amir Ali may have come to you at any time between the two hours mentioned by you in the Court of Session ? Answer.‑Yes." The criticism that these questions were of the nature of cross- examination, and as such improper questions to be put by the Court was found difficult to meet. In all the circumstances, it would have been much better, in every way, if the Court had not put these questions itself. The Crown was represented by an Assistant Advocate‑General, who cross‑examined the witness at some length a little later. The next witness examined was the eye‑witness Muhammad Sadiq and he told a new story to explain Amir Ali's second visit to the Tehsildar. It was obvious that that visit could not be fitted into the set of facts which constituted the story of the 'bodyguard' witnesses at the trial. Muhammad Sadiq said that on their way back (meaning presumably after leaving Dil Muhammad's shop) the party on foot stopped for a drink of water at a "machine" (meaning a flour‑mill) at a distance of about a killa from the Tehsildar's house, while Amir Ali and Saidu Noul who were on horses went ahead. Having had their drink, they proceeded on their way and found Amir Ali and Saidu Noul waiting in front of the Tehsildar's house. In the course of cross‑examination, the witness said that the Tehsildar's house although only 40 karams away from the flour‑mill is not visible from inside the building, that only three persons, namely, Ibrahim, Nawab and Muhammad Sadiq drank water that Sada Kharal had already joined them, but he too had fallen out of the group at the time for the purpose of buying cigaretes and that although there was a pitcher of‑water at Dil Muhammad's shop "there was no watercourse near about". The latter statement seems devoid of relevancy, but serves to indicate that the witness was conscious that at the trial it had been admitted that the party had drunk water at Dil Muhammad's shop. After Muhammad Sadiq's statement had been completed the case was adjourned for four days for the evidence of Nawab, Dil Muhammad, Saidu and Ch. Miran Bakhsh, A. S I. The proceedings of that day, the 28th November 1950, com mence with the following order by the learned judges :‑ "As the point that needed explanation has been clarified by the further examination of Muhammad Sadiq (P. W. 2), we do not wish to take any additional evidence except that of Chaudhri Miran Bakhsh, Mr. Sleem, however, is at liberty to cross‑examine the witnesses on the point to explain which they were called." Learned counsel for the appellant has complained with some feeling of the implication contained in the first sentence of this order. A gap in the prosecution evidence having been pointed out, a prosecution witness of a definitely partisan character who could readily have given evidence on the point at the trial, where also the point was clear, produced a new set of facts to fill up the gap. A positive statement of opinion by the learned judges that this novel explanation had clarified the point to their satisfaction amounted in the circumstances to a pre‑judgment on a crucial point affecting the guilt or innocence of the convicts. The liberty allowed to counsel for the appellants to cross‑examine Nawab, Dil Muhammad and Saidu could not avail to place the parties on a level in this respect, for these witnesses were all tainted with hostility and could hardly be supposed to have some unprepared for cross -examination on the new facts adduced through the mouth of Muhammad Sadiq. What is more, the unequal position of the convicts was finalised by an order made on the same day in the following terms after Nawab had been cross‑examined :‑ "Mr. Sleem does not wish to cross‑examine Dil Muhammad and Saidu, but says that he should be given an opportunity to contradict the evidence of Nawab and Muhammad Sadiq that on‑ the day in question they went to the flour mill for a drink of water. We do not think there is any occasion for rebuttal." Learned counsel for the appellants did not hesitate to describe this order as amounting to a denial of justice. It may be that the order attracts such a description by reason of its brevity. It may have been better if the learned judges had indicated the reasons by which they were guided in refusing to place the parties on equal terms in relation to a wholly new story, which had never been told or tested during the police investigation or in the Courts below the High Court. As the record stands, it furnishes, in my opinion‑I speak with all respect‑ample grounds for allowing an opportunity to produce evidence in rebuttal. The story may have been negatived, for example, by showing that the Tehsildar's house did not lie on the route which the party would naturally have taken to reach the place where Amir Ali was killed. Muhammad Sadiq's supplementary statement furnishes some material to support this possibility. Refutation may have been possible in other ways as well. It is un necessary to emphasize the prejudice caused to the convicts by the order. On this point it will suffice to add that the learned Advocate‑General appearing for the Crown, seemed to admit at one stage that a right to produce evidence in rebuttal should have been allowed, and, when he subsequently resiled from that position, was unable to furnish any ground for his assertion that the refusal was justified. After making this order, on the same day, the learned Judges proceeded to examine A. S. I. Miran Bakhsh, whose name occurs in the order of the 13th November 1950. Learned counsel for the appellants has, and again justifiably, com plained that in the entire statement of Ch. Miran Bakhsh covering more than three pages of the paper‑book, of which about one‑third was made in answer to questions put by the Court, there is no matter even remotely connected with the point of Amir Ali's second visit to the Tehsildar. The witness was instead questioned pointedly by the Court either on matters which were purely matters of investigation, or in regard to the presence of certain persons at the spot when he first arrived there. As to the former questioning, it is sufficient to say that, for reasons already stated, it would have been best avoided. The latter questioning has reference to another defect in the prosecution case, appearing from Dil Muhammad's evidence at the trial. Dil Muhammad had stated in examination‑in- chief that he heard of the occurrence in the mandi about half an hour or an hour after the departure of Amir Ali and his companions from his shop, and reaching the spot at 4‑45 p.m. or 5 p.m., he found among the persons present there, all the eye‑witnesses namely Sadiq, Nawab, Saidu Noul and Sada, as well as Ibrahim. Replying to a question put by the ‑Court, he said that he left the spot before the arrival of the "police", meaning the investigating police. Now Muhammad Sadiq had said that he left the spot for the Thana to make a report almost immediately after the occurrence, and certainly before the arrival of any persons from Nankana. Consequently, Dil Muhammad's testimony would tend to place him at the spot as late as 5 p.m. and thus to throw doubt on the allegation that the report to the police was made at 5 p.m. Support would thus be provided for the defence allegation that the police came to the spot on hearing of the occurrence and the First Information Report was not recorded at the Thana, but only at the spot after part of the investigation had already been carried out. The defence also relied for this purpose on the fact, already mentioned, that the inquest report was not handed over to the doctor until the following morning, the body having reached the hospital the same evening, i.e., the evening of the 6th August 1949. The explanation is put forward that the investigating police had not been able to complete the inquest report satisfactorily, that is to say, with an account of the entire incident and names of witnesses in support, as well as the nature of their evidence. (Although this is not strictly necessary, it is the ordinary practice of the police in the Punjab to include such matter, under the heading `brief facts of the case in the form provided'. This was only done during the night and hence the delay in furnishing the inquest report. The importance of this point is obvious but it is not strictly correct to say, as the learned judges of the High Court have said in their judgment, that this was one of the points for the clearing up of which the order of the 13th November 1950, for summoning further witnesses was made. So much appears from that order itself. There is consequently force in the complaint of learned counsel for the appellants that it was without notice to the defence that the High Court proceeded on the 28th November 1950 to examine A. S. I. Miran Bakhsh on this point. He stated that Dil Muhammad was present on the spot when he arrived there with Muhammad. Sadiq. In cross‑examination the witness said that when he reached the spot there were fifteen or twenty persons there and he gave the names of twelve, which were entered in the zimni. He was quite clear that Dil Muhammad was also at the spot, though his name is not among the twelve mentioned above. Questioned regarding the possibility of making an entry in the roznamcha or F. I. R. register at a Thana at a time later than that shown against it, the witness declared that such a thing was impossible. He averred that the inquest report was prepared within an hour and a copy was sent with the body to the hospital at 7‑30 p.m. thus casting the blame for delay in this respect on the constable. At this stage, the learned judges of the High Court recorded a further order as under :‑ "In view of the evidence of Ch. Miran Bakhsh it is neces sary to put a few questions to Dil Muhammad who is present." Evidently, this was thought necessary, not for any matter connected with Amir Ali's second visit to the Tehsildar, but solely in relation to the second point, namely, Muhammad Sadiq's presence at the spot so long as Dil Muhammad was there. Questioned by the Court this witness said, he went to the spot on hearing a general report of the murder, that the police arrived a few minutes after he had reached the scene and that the reporter Muhammad Sadiq came with them. As regards his earlier conflicting statements, he said that neither was correct, but gave no reason for having made incorrect statements. When cross‑examined, he denied that he had been tutored to make the new statement, said that he failed to notice the error when his statement at the trial was read out to him, and in the course of questioning on the point of the presence of Amir Ali's group in his shop made the following remarkable statement :‑ "Amir Ali and his companions smoked huqqa at my shop but I did not see them taking water". Nothing could indicate more clearly that the witness had been prepared to adapt his statement to the new story of the water drinking at the flour‑mill, but when questioned whether he had been taught to say this he denied that he had been coached and put forward the extraordinary suggestion that he may have used the expression "huqqa pani" (which in a certain sense means the privilege of social intercourse in a general way) and these words might have been mistranslated. The reception of this evidence by the High Court has been very severely criticised by learned counsel for the appellants. The matter of the inquest report had already been sufficiently investigated at the trial, and as to the time of Dil Muhammad's arrival on the spot and that Muhammad Sadiq was there at this time, and the investigating police were not, it was pointed out that Dil Muhammad was examined as P. W. 10 in the trial Court on the 11th July 1950 and the very next witness to he examined was as A. S. I. Miran Bakhsh as P. W.

11. It could therefore not be said that the prosecution had lacked opportunity at the trial of clearing up any difficulty created by Dil Muhammad's statement. In fact A. S. I. Miran Bakhsh was pointedly cross‑examined regarding the absence of Dil Muhammad's name from the police statements of the witnesses, and this should have served to attract the attention of the prosecution to the opportunity. From the fact that no questions of the relevant kind were put to A. S. I. Miran Bakhsh, it should have been concluded, in the sub mission of learned counsel, that the prosecution were content to leave the evidence on this point in that state. It was urged that a witness like Dil Muhammad who was only brought into the case at a late stage and as a result of a special investigation and who is an associate of the deceased, could not possibly be expected to state true facts on any controversial point, if time for preparation were available. From such witnesses the truth is ordinarily only obtainable on such points on which they are unprepared. The only reply made to these con tentions for the Crown was the general one that the exercise of discretion by the High Court in this respect could not be called in question. After a full examination of the entire evidence in the case, and anxious consideration of all relevant factors not confined to those stressed in the arguments, I am clearly of the opinion that the record of the case, as prepared at the trial provided ample material for a just and proper decision on both points, which the High Court sought to elucidate by means of the additional evidence they recorded. The discretion of the High Court to call for such evidence was limited only by its necessity for‑ the purpose of reaching a decision. The evidence they received was germane to two points of crucial importance going to the very foundation of the case. For this is a case resting purely on ocular evidence, in close accordance with an initial report alleged to have been made within half an hour of the occurrence. No circumstantial evidence of any kind was led to implicate any one of the accused persons. The partisan nature of the witnesses was brought pointedly to the notice of the learned judges. A well‑founded doubt created regarding either the promptness of the report or the presence of the witnesses on the spot was calculated to break down the entire case. The trial record contained material for serious doubt on both points, which remained despite the existence of ample opportunity to the prosecution to dispel it, if they could and felt so minded. In the circumstances, the action of the learned Judges in allowing the prosecution a further opportunity during the hearing of the appeal to clear up these doubts was, in my opinion, not a judicial exercise of the discretion vested in them. The supplementary evidence has been materially relied upon in their judgment dismissing the appeal and confirming the death sentences. There has thus been violation of a principle of law sufficient to attract this Court's jurisdiction, as laid down in Bibhabati Devi v. Remendra Nrrayan Roy, A I R 1947 P C 19 It is necessary that this additional evidence should be excluded from consideration in determining the guilt or innocence of the appellants, which must rest exclusively on the evidence placed on the record at the trial. The question alien' arises whether the appraisement of this evidence for this purpose is a proper function of this Court, in consonance with the practice of the Privy Council, or should the case be remitted for this purpose to the High Court ? For the Crown, it is contended that this Court should follow the latter course, and the case of Kottaya (74 I A 65) is cited in support On the other side, it is contended that mis‑reception of evidence, leading to grave injustice, has always sufficed for interference by the Privy Council. The case of Vaidyanath Pillai 40 I A 192 ; Bhuboni Sahu 76 I A 147 and Chainchal Singh 72 I A 270 were cited, as well as a large number of cases from Africa and one from Fiji. Special reliance was placed on the case of Ramanugrah Singh A I R 1946 P C 151, which will be examined more fully later. In the other Indian cases, improper evidence received at the trial was eliminated, and the balance of the evidence was re‑valued (in one case, a witness being believed by the High Court) for the purpose of deciding each case. Evidence was re‑examined in all the cases from Africa and Fiji. Kottaya's case is a solitary instance where the Judicial Committee declined to undertake the function of evaluating the balance of evidence left after inadmissible portions had been eliminated. In that case, which arose out of an assault accompanied by rioting and murder committed by one faction upon the members of another faction in a village the evidence for the prosecution included a number of confessions. Their Lordships scrutinised these confessions in the light of the provisions of sections 26 and 27 of the Indian Evidence Act with care and held that small portions of three of these con fessions were inadmissible. The evidence thus excised constituted only a small part of the total evidence in the case. They then proceeded to state the terms of section 167 of the Indian Evidence Act. As it will be necessary to refer to this section again, it is reproduced below :‑ . "The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision." Their Lordships then proceeded to observe that it was the "duty of the High Court in appeal to apply its mind to the question whether after discarding the evidence improperly admitted there was left sufficient to justify the convictions". This the High Court had failed to do, because it had considered that evidence to be properly admitted. For this reason, their Lordships allowed the appeal, and remitted the case to the High Court with directions to consider the question; and make orders according to law. The report of the arguments presented before the judicial Committee by counsel shows that for the appellants, it was urged that in section 167 : "The words "of itself" show that if in fact the admission of the wrong evidence makes it clear that the result might very well have been entirely different, it changes the whole balance." To this, the reply was made that‑ "on the question of miscarriage of justice, the test is section 167 of the Evidence Act ; that test could not be applied by the High Court because they had continued to use the evidence which * * * * was inadmissible". The order made by the Judicial Committee, in effect, adopts the contention advanced for the Crown, with the result (I speak with the greatest respect) that, having adjudicated upon the point of law, their Lordships directed that the appeal be heard afresh. It is, of course, clear that the provisions of the Indian Law of Evidence were not binding on the Judicial Committee. The question whether the provisions of the Evidence Act of Pakistan are applicable to this Court has not been argued before us, and I am not aware of any decision of this Court on the point. Prima facie, since the Federal Court is constituted by proper authority in Pakistan, it is within the meaning of the expression 'Court' as used in section 167 of the Evidence Act (which is in the terms reproduced above). I follows that it is not open to this Court to adopt the course taken by the Judicial Committee in Kottaya's case. It appears that their Lordships regarded the case as falling under section 167, which did not apply to the Privy Council but did apply to the High Court, and they consequently directed the High Court to discharge the duty imposed upon "the Court" by that section. In similar circumstances, I am inclined to think that i would be for this Court to carry out this duty, and we would be acting contrary to the section itself if we directed a fresh hearing of the appeal, for this would in my opinion, be within the prohibition of "a new trial" contained in this section. But, indeed, the circumstances in this case bear no resem blance to those which existed in the case of Kottaya. In the latter case, objection had been taken or, at any rate, could have been taken before the High Court against the evidence wrongly admitted at the trial, and, therefore, it was conceiv able that, had the High Court been correctly guided in the matter, it would have been obliged to act in compliance with section

167. Here the objection was not, and could not be, taken anywhere except in this Court, and the provisions of the section if they apply at all, apply to this Court alone and to no other Court. Therefore, in my opinion, the case of Kottaya does not afford proper guidance for the decision ‑of the present appeal. Of the cases cited for the appellants, I consider it unprofitable to examine those from Africa and Fiji, as it is uncertain whether the laws of those territories provide for retrial being ordered on appeal. The power is an exceptional one. It is not possessed by the English Court of Criminal Appeal. The Indian cases in which evidence improperly received at the trial was eliminated .by the Privy Council are not wholly in point. Yet this show that, in certain circum stances, the Judicial Committee would undertake to evaluate at least the evidence properly received in a case before them, for determining the guilt or innocence of the appellant. In my opinion, the best guidence for the decision of this case is afforded by the course followed by the Privy Council in Ramanugrah Singh's case. In Ramanugrah Singh's case, the facts were as follows. At a trial by jury an accused person who had been charged with murder and hurt, among other offences, received a verdict of guilty of hurt but not guilty of murder. The Sessions Judge disagreed with this verdict and referred the case to the High Court of Patna, expressing the view that the accused was guilty of man‑slaughter but riot murder. The High Court examined all the evidence and held that the accused was guilty of murder as well as of hurt. They awarded sentences for both offences. When the case came before the judicial Committee, their Lordships found that the High Court had paid no regard to the question whether the reference by the Sessions judge under section 307 Cr. P. C., was in order. For this reason, they proceeded themselves to examine the evidence, and found that the jury's verdict was neither perverse nor unreasonable, but, on the other hand, it was sustained by important facts. At this stage a prayer was made that the proper course was to refer the case back to the High Court for reconsideration on the lines indicated by' the Privy Council. Their Lordships rejected this prayer observing that they were satisfied that such reconsideration could only result in the jury's verdict being upheld. They quashed the convic tion and sentence for murder. The conviction for hurt had not been challenged. The reversal of the High Court's findings was clearly based, in the precedent case, on the Privy Council's own evaluation of the entire evidence. This was necessitated by the special nature of the plea raised, namely, that on the evidence, the verdict of the jury was a correct one. It was therefore an eminently reasonable course which their Lord ships took (I say so with great respect) in directly giving effect to their view that, on the evidence, the verdict of the jury was right and the findings of the High Court were wrong. It was also a course calculated to minimise both expense and delay in the disposal of a protracted case. Here as well, the special nature of this case has compelled this Court to examine the entire evidence recorded at the trial, and to form its own opinion regarding the value of that evidence for proving the charges against the appellants. I am unable to see any reason why this Court should not give effect to its conclusions directly by means of a proper order made in the appeal, as was done in Ramanugrah Singh's case, and on the same considerations. It is a possible inference from the fact that the High Court took .the very unusual step of giving prosecution witnesses what was in effect an opportunity of remedying the very serious defects which had appeared in their statements, that the learned judges considered the evidence on the record of the trial, as it stood, to be not wholly adequate for sustaining the conviction. It is significant that the assessors had unanimously found the accused persons to be not guilty. Independently of these matters, it is sufficiently clear. that there is in this case serious doubt concerning the presence of the eye‑witnesses on the spot, or sufficiently close thereto to see and hear what they have deposed to. There is also suspicion which remains unallayed that the account of murder given by the prosecution may be a fabrication. Moreover, the eye witnesses are all partisans of the deceased, and their account of the occurrence is marred by intrinsic improbabilities. In the circumstances, the evidence was plainly insufficient to discharge the burden of proof on the prosecution of proving the charge beyond reasonable doubt: The appellants were therefore entitled to be acquitted, and I would accordingly allow this appeal and acquit them. A. H. Appeal allowed.