P L D 1953 Lahore 14 (PLP)

MUHAMMAD JAN, J.‑--Ali Shan, aged about 80 years, and his two sons, Aziz Ahmad aged about 50 years and Manzoor Ahmad aged about 37 years, Minhas Rajputs of Dhok Gondal, District Rawalpindi, were tried by the Sessions Judge on the charge that they, on the 17th June 1951, in the prosecution of their common intention, caused the death of Tegh Ali, brother of Ali Shan, and made a murderous attack on Lai Khan (P. W. 3), another brother of Ali Shan, and Khalil (P. W. 2) son of Tegh Ali, and thereby committed offences under sections 3:)2 and 307 read with section 34 Pakistan P. C. They pleaded not guilty and produced defence evidence. The learned Sessions Judge found Ali Shan guilty under section 323 and sentenced him to one year's rigorous imprisonment. He found Aziz Ahmad and Manzoor Ahmad guilty under sections 302 and 307/34, Pakistan P. C. They were sentenced to transportation for life under section 302 and seven years' rigorous imprisonment under section 307/34, Pakistan P. C. The convicts have appealed. The prosecution case is that Tegh Ali deceased owned a house adjoining that of P. W. Lai. The appellants also have houses near the house of Tegh Ali. The way to the house of Manzoor Ahmad and Aziz Ahmad appellants lies through a gal situated between the courtyards of Tegh Ali deceased and Lal P. W. About a year before the occurrence, the house of Tegh Ali was burnt down and the appellant improvised a short cu from a new house built by them to their house near that of Tegh Ali through the courtyard of the burnt house. Recently this house was rebuilt by Tegh Ali who kept a passage for his own use in the northern wall of the courtyard. The appellant Aziz Ahmad and Manzoor Ahmad tried sometimes to go through this passage and use the short cut which they had improvised but Tegh Ali objec ted to this. On 17th June 1951, Lal (P. W. 3) was sitting with Khalil (P. W. 2) and Tegh Ali (now deceased) in the latter's courtyard. Tegh Ali went out through the above mentioned passage into the field situated towards the north of the house in order to make water. He had gone about 20 or 30 yards from his house when the appellants Manzoor Ahmad and Aziz Ahmad came to the passage in order to pass through it for going to their house. Tegh Ali told them not to do so but they abused him and went through his courtyard to their house. There they had a talk with their father Ali Shan appellant and then all three of them went out towards the field where Tegh Ali had gone. Lai and Khalil P. Ws. heard a lalkara and, going out of the passage saw Manzoor Ahmad armed with a barchhi, Aziz Ahmad armed with a knife and their father Ali Shan armed with a stick, going towards Tegh Ali. On reaching him, Manzoor Ahmad struck Tegh Ali on the back with a spear and felled him to the ground. Aziz Ahmad stabbed him with his knife and Ali Shan struck him with the stick. Manzoor Ahmad kicked and struck Tegh Ali as he lay on the ground. Khalil Ahmad P. W. (son of deceased) threw a stone at Aziz Ahmad appellant which struck him on the chin in order to save his father, but Manzoor Ahmad struck him on the shoulder with the spear and Aziz Ahmad stabbed him with his knife. Then Lai (P. W. 3) intervened and Manzoor Ahmad struck him also with the spear; Aziz Ahmad struck him with the knife and Ali Shan with the stick. In the meantime Maqbool Ahmad (P. W. 6) arrived and was struck by Ali Shan for attempting to interfere. Akbar Khan (P. W. 4) another brother of Ali Shan appellant and the deceased, also arrived and entreated the appellants to desist whereupon they went away to‑lards their house and Tegh Ali died shortly afterwards. Akbar Khan (P. W. 4) went and lodged the report (Exh. P. A.) at Police Station Gujar Khan at 10 p.m. on 17th June 1951. The occurrence is alleged to have taken place at degarwela on that day. On post‑mortem examination of the body of Tegh Ali the following injuries were found:‑

1. A punctured incised wound, " x 1/5", cutting the left scapula and communicating with the chest cavity situated on the upper part of the left side of the back, 2f below the inner end of the shoulder in an oblique direction.

2. A punctured incised wound, " x 1/5" x 1", on the upper part of the left side of the back just inner to the lower part of the vertebral margin of the scapula, 2" from the medium line horizontal.

3. A punctured incised wound, " x 1/5", communicating with the chest cavity, situated on the upper part of the back towards the left in a horizontal direction. Its inner end was in the medium line, 4" below the neck. The shirt worn by the deceased was torn in many places, hence corresponding cuts could not be detected.

4. A contusion, 2" x ", on the top of the left shoulder horizontal.

5. A contused wound, " x 1/5" x skin deep on the lower part of the right mastoid.

6. Lower part of the pinna of the right ear was torn 1/3" x 1/3", adjacent to injury No. 5.

7. A contusion, " x ", just outer to right eyebrow.

8. A scratch mark, " x 1/6" on the prominence of the right heek.

9. A scratch mark, " x ", on the outer part of the right clavicle. On opening the chest cavity, the descending aorta was found to have been cut which resulted in death. Khalil Ahmad (P. W. 2) had an incised wound, 1"x 1/3" x 1" and another 1 1/3" x " x 1/5", on the right shoulder and the lower part of his right arm, respectively. Lal Khan (P. W. 3) had three incised wounds on the back, besides a contused wound, a scratch and a couple of contusions. Maqbool Ahmad (P. W. 6) had a contused wound, " x 1/5" x 1/5" on the right side of his head. The appellant Aziz Ahmad had a contused wound, 1" x " x 1/6", on the left side of the chin and a couple of scratches on the knee and the ear. Ali Shag and Manzoor Ahmad denied participation in the fight, but Aziz Ahmad stated that he and his brother Barkat Ahmad (D. W. 2) had come from Gujar Khan on a bicycle and, on reaching near Dhok Gondal, Aziz Ahmad's son Nisar Ahmad told him that Amjad, a nephew of Aziz Ahmad, had a fight with Fayyaz, son of Akbar Khan (P. W. 4), and Tegh Ali (now deceased) had beaten Nisar Ahmad. Aziz Ahmad abused Tegh Ali who came out of his house with a stick and struck Aziz Ahmad on his hand, back and chin. On this, Aziz Ahmad appellant pulled out a knife and inflicted two or three slight injuries on Tegh Ali's back. After that he sat down exhausted and his brother Barkat Ahmad (D. W. 2) and another brother, Fazal Akram (D. W. 3), came to the scene. Lai Khan, Khalil Ahmad, Akbar Khan and Maqbool Ahmad P. Ws. also arrived and there was a fight. The case for the prosecution was fully supported by Khalil (P. W. 2), son of the deceased, Lai (P. W. 3) and Akbar Khan (P. W. 4) brothers of the deceased as well as Ali Shan appellant. Maqbool Ahmad (P. W. 6) was tendered for cross‑examination in which nothing useful was elicited. The appellants produced seven witnesses in defence. D. W. 1 Sultan Ahmad was examined by the prosecution in the Committing Court but was given up in the Court of Session, He was brother of Maqbool Ahmad P.W., who was tendered for cross‑examination by the prosecution. Their sister, Mst. Azad Begum, is married to Mubarik Hussain, whose sister is married to Fazal Akram brother of Aziz Ahmad and Manzoor Ahmad appellants. He denied that ten or fifteen persons had collected at the time of the occurrence, but he had said so in the Court of the Committing Magistrate and was confronted with that statement. But, he had also said in that statement that these persons had arrived after wards. Barkat Ahmad (D. W. 2) supported the version given by his brother Aziz Ahmad appellant and said that he took the knife from Aziz Ahmad and grappled with Tegh Ali. In order to free himself he gave a blow with the handle of the knife on the head of Tegh Ali. After the arrival of Lal Khan P. W. he gave a hard blow with the knife on the back of Tegh Ali who fell down. Then Lal Khan P. W. struck Barkat Ahmad with a sod on the forehead After this, he and Lal Khan grappled with each other and he struck Lal Khan three or four blows with the knife on his back. In the meantime, Khalil Ahmad P. W. arrived and tried to assault the witness but he warded off the assault by stabbing Khalil Abroad. Then Akbar Khan and Maqbool Ahmad P. Ws. came and Fazal Akram, another brother of the appellants Aziz Ahmad and Manzoor Ahmad, struck them and finished the fight. The witness named Nasir Ahmad, Muhammad Sharif, Amir Ahmad and Imtiaz Ali as some of the persons who where present at the time of the occurrence and said that his father Ali Shan had come afterwards and taken no part in the fight. He gave no informa tion to the police relating to the occurrence, although the police station was only five miles away from the village. He denied that he or his brothers had even tried to use the passage through the courtyard of Tegh Ali and said that the fight had taken place because Tegh Ali had beaten Nisar Ahmad, son of Aziz Ahmad appellant. Fazal Akram (D. W. 3) another brother of the appellant Aziz Ahmad and Manzoor Ahmad, stated that he saw Lal Khan P. W. and Barkat Ahmad D. W. fighting with each other and Tegh Ali lying wounded on the ground. He tried to Intervene but was attacked by Maqbool Ahmad and ran away lest he should be involved by the police. Muhammad Sharif (D. W. 4) supported the statement of Barkat Ahmad (D. W. 2). One of his nieces is married to Aziz Ahmad appellant and the other to Manzoor Ahmad appellant. Muzaffar Khan (D. W. 5) said that Manzoor Ahmad appellant was at his shop in village Hayat Sar, situated at a distance of about three furlongs from the place of occurrence, and he told Manzoor Ahmad that there had been a fight between his brothers and uncle; and Manzoor Ahmad left for the Dhok. He admitted relationship with Muhammad Sharif (D. W. 4) who, as stated above, is related to the appellants. Imtiaz Ali (D. W. 6) said that he was in the house of Ali Shan appellant and, on hearing a raula, went out with Ali Shan but the fight had finished and Aziz Ahmad was being brought home by his brothers Barkat Ahmad and Fazal Akram. He admitted that a nephew of Tegh Ali deceased had abducted the daughter of his cousin Sher Baz. Rehmat Khan (D. W. 7) repeated the story of Muzaffar (D. W. 5) that Manzoor Ahmad appellant was in his shop at Hayat Sar at the time of the occurrence and was informed about it by Mazaffar. The witness himself belongs to village Partali, which is four kos away from Hayat Sar. The learned Sessions Judge has held the evidence of Barkat Ahmad D. W. and the defence version to be false and ludicrous. We have, however, considered the defence version and evidence carefully because the learned counsel for the appellants has relied upon them and has commended the defence version as more probable than the prosecution version of the case. The most obvious defects in the defence version, which the learned counsel for the appellants has not been able to explain, are that if Barkat Ahmad and Fazal Akram had joined Aziz Ahmad in attacking Tegh Ali and the prosecution witnesses there was no reason why Barkat Ahmad and Fazal Akram should not have been named in the report and in the evidence given by the prosecution witnesses as having been amongst the assailants. The prosecution witnesses might have falsely implicated Manzoor Ahmad but it is not believ able that they would have gratuitously exonerated Barkat Ahmad and Fazal Akram and substituted Manzoor Ahmad, an innocent brother of theirs, in their place. Manzoor Ahmad was stated to have been substituted for Barkat Ahmad, because Barkat Ahmad is married to the daughter of Lal P. W. If that was the reason for not implicating Barkat Ahmad, no reason has been shown for not implicating Fazal Akram. As regards Ali Shan, he is an old man of 80 years and if any false implication had to be made he was the least likely person to be selected for that purpose. His sons, Barkat Ahmad and Fazal Akram, could have been far more appropriately implicated as participants in the crime than the old man Ali Shan. The fact that Barkat Ahmad and Fazal Akram, who may well have been but were not accused goes a long way to show that the prosecution witnesses have avoided falsehood. We, therefore, agree with the trial Court in rejecting the defence version. The ariticiam levelled by the learned counsel for the appellants against the prosecution evidence is that the three incised injuries of Tegh Ali are of the same dimensions, though they are alleged to have been caused with two different weapons, i.e.. with a spear by Manzoor Ahmad and with a knife by Aziz Ahmad. Dr. Rehmat Ali (P. W. 1) was cross‑examined on this point and he stated that the incised injuries of Tegh Ali could have been caused with two different weapons of the same size. It is argued that a spear blade and a knife blade are never of the same size. The weapons of offence in this case have not been produced and it cannot be said that the blades of the spear and the knife were not of the same size and could not produce injuries of the same dimensions. Conversely, according to the defence the injuries on the deceased and the prosecution witnesses were caused by only one weapon, i.e., the knife of Aziz Ahmad appellant used at first by him and then by his brother Barkat Ahmad; but the incised injuries on the deceased and the prosecution witnesses differ in their dimensions. Another point argued on behalf of the Appellants is that, according to the prosecution. Tegh Ali was going to urinate when he saw Aziz Ahmad and Manzoor Ahmad appellants about to enter his courtyard and told them not to do so. Aziz Ahmad and Manzoor Ahmad passed through the courtyard into their own house and from there emerged. armed with a spear and a knife, accompanied by their father. They went and attacked the deceased at a distance of about 30 yards from his house and in the time which must have been spent in taking the weapons and reaching the deceased the latter must have urinated and emptied his bladder which on the post‑mortem examination, was found to contain four ounces of urine. It was, therefore, urged that the offence was not committed in the way alleged by the prosecu tion. The inference sought to be derived from the presence of a little urine in the deceased's bladder is not warranted. There is nothing to show that the deceased had actually passed urine after the verbal altercation with Aziz Ahmad and Manzoor Ahmad and the bladder is not always completely emptied when man of a Tegh Ali's age passes urine. This circumstance, therefore, does not falsify the prosecution case, which is testified to by Lai Khan and Akbar Khan, brothers of Ali Shan and uncles of Aziz Ahmad and Manzoor Ahmad appellants, as well as by Khalil Ahmad, nephew of Ali Shan and cousin of Aziz Ahmad and Manzoor Ahmad appellants. All three of them bear injuries and their presence at the time of the occurrence is admitted by Aziz Ahmad and the witnesses produced in defence. We are, therefore, satisfied that they have given a true version of the case, and relying upon their evidence, we hold that the prosecution had proved that the appellant have committed the offences for which they have been convicted and sentenced. Finally, it was urged by the learned counsel for the appellants that though the accused were properly examined in the Court of the Committing Magistrate, in the Court of Session they were merely asked whether they had made the statements, which were read out to them, before the Committing Magistrate and whether they wished to add anything to those statements. This was said to be a failure to comply with the provisions of section 342 Cr. P. C., which invalidated the trial. Reliance was placed' upon Tara Singh v. The State (A I R (38) 1951 Supreme Court 441) where it was said that the importance of observing faithfully and fairly the provisions of section 342 cannot be too strongly stressed and that it is not a proper compliance with the provisions of section 342, Criminal Procedure Code, to read out a statement in the Committal Court and ask the accused whether that statement is correct. It was, however, held that every error or omission of this kind does not necessarily vitiate a trial because such errors fall within the category of curable irregularities. The question in each case depends upon the degree of the error and whether prejudice c has been caused to the accused. The same view was expres sed by a Division Bench of this Court in Shammun v. Crown (P L D 1952 Lah. 374). The learned Chief Justice in delivering the judgment observed that the proper questioning of an accused person is an essential constituent of a fair trial, but every omission or irregularity in the examination of an accused person does not vitiate the trial, because section 537 of the Code of Criminal Procedure applies to such omissions and irregularities and no conviction can be set aside on the ground of defective examina tion of the accused unless it has, in fact, occasioned a failure of justice. This is a question of fact to be determined by the appellate Court on the circumstances of the particular case. We are of the opinion that it can safely be laid down as a general principle that it is of the utmost importance that Sessions Judges should themselves examine the accused in order to enable them to explain the material circumstances appearing in evidence against them. The Sessions Judges should realise that the evidence referred to in section 342, Criminal Procedure Code, is the evidence recorded by them and not the statements recorded by the Committal Court which do not constitute evidence at the trial unless transferred to the record of the Sessions Court under section 288, Criminal Procedure Code. Wherever, however, a Sessions Judge has failed to perform this duty and the question is whether the irregularity committed by him has caused any prejudice to the accused or not, it should be seen whether all the circumstances appearing in evidence against the accused in the Committal Court have been put to them by the Committing Magistrate or not. If they have been put and the accused have been given the opportunity to explain them, then it should be seen whether any new circumstances have appeared in evidence in the Court of Session which the accused had not the opportunity to explain. If it is found that all the material circumstances have been put to the accused in the Committing Court and no new circumstances have appeared in evidence against them in the Court of Session, then the failure of the Sessions Judge to repeat the questions put in the Committing Court and to obtain the answers already given may not be treated as an irregularity which should vitiate the trial. If the circumstances appearing in evidence against the accused were not put to them either by the Committing Court or by the Court of Session, then it may well be presumed that the accused were prejudiced in their trial and a retrial should be ordered from the stage where the irregularity occurred. This view finds support in Mathali alias Palani Goundar ((1952) 1 M L J 276) where it was held by a Division Bench of the Madras High Court that if in a Committal Court all the circumstances that appeared against the accused in evidence were put to him by the Magistrate and answers obtained from him and in the Sessions Court no new circumstance was disclosed and the Sessions Judge merely read out the statement in the Committal Court and asked the accused whether he wished to say anything more and he said that he had nothing to add, the trial was not vitiated. In the case before us, the accused are admitted to have been properly examined by the Committing Magistrate and it has not been shown that any new circumstance was disclosed in the Court of Session which required explanation from them. No prejudice is shown to have been caused to the appellants by the perfunctory examination in the Sessions Court. On the contrary, it is apparent that the appellants very clearly understood the nature of the case which they had to meet and they tried to meet it as best they could by producing seven witnesses to rebut the prosecution case. We are, therefore of the opinion that the failure of the Sessions Judge to properly question the appellants, deplorable as it is, has caused no prejudice to the appellants nor any failure of justice. For the reasons given above, we decline to interfere in this case and dis miss the appeal. A. H. Appeal dismissed.