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Petitioner: GHULAM SAFDAR AND ANOTHER VS Respondent: THE CROWN
P L D 1956 Federal Court 126
P L D 1956 Federal Court 126
(Appellate Jurisdiction)
Present: Muhammad Munir, C. J., A. S. M. Akram,
M. Shahabuddin and Muhammad Sharif, JJ
GHULAM SAFDAR and another‑Appellants
Versus
THE CROWN‑Respondent
Criminal Appeal No. 4 of 1956, decided on 16th January 1956.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 22nd July 1955, in Criminal Appeal No. 824 of 1954).
(a) Burden of proof‑----Incidental matters in deposition of prosecu tion witness‑No part of duty of prosecution to prove.
An eye‑witness in a murder case was employed at the Railway Workshop at Mari, while the murder was committed at Kalabagh. The Sessions Judge rejected his evidence mainly on the ground that if the witness had been on leave from his workshop as alleged by him the prosecution should have, in order to corroborate him, proved an application for leave by him.
Held, that it is no part of the duty of the prosecution to prove all incidental matters that are mentioned by a witness in his deposition. If the matter appears to the defence to be material and it is intended to contradict a witness as to that matter, it is the duty of the defence to produce evidence to rebut the statement of the witness.
(b) Discrepancies in prosecution evidence‑---Vague‑Fate of criminal case does not depend on such discrepancies.
The fate of a criminal case does not depend upon the existence of vague discrepancies in the statements of witnesses.
(e) Acquittal‑--Crown's appeal against‑High Court's duty to review evidence and come to its own conclusions bearing in mind the conclusions arrived at by the trial Court.
The law allows a right to the Provincial Government to appeal against an acquittal, and on being moved on any such appeal it is the duty of the High Court to review the evidence and to come to its own conclusions, bearing of course in mind the conclusions arrived at by the Trial Judge, the reasons given for such conclusions and the advantage that he had in observing the demeanour of the witnesses and hearing their story viva voce.
Ghulam Abbas Jaffarey, Advocate, federal" Court, instructed by Zahir Abbas, Attorney for Appellants.
A. R. Changez; Advocate‑General, West Pakistan (S. A. Mahmud, Advocate, Federal Court, with him) instructed by Ijaz Ali, Attorney for Respondent.
Date of hearing :16th January 1956.
JUDGMENT
MUHAMMAD MUNIR, C. J.‑----Ghulam Safdar and Manzur Hussain, who are maternal cousins, were charged before the Sessions Judge, Mianwali, with the murder of Murid Hussain Shah. The learned Judge acquitted them, but on appeal by the Provincial Government, they were both found guilty by the High Court of Lahore and sentenced to death. On a petition, the appellants were allowed to appeal to this Court on the ground, alleged in the petition, that the learned Judges of the High Court had not fully considered the circumstances which had weighed with the Sessions Judge in finding them not guilty and that the eye‑witnesses were closely related to the deceased or otherwise interested in him.
The allegation against the appellants was that because of the acquittal of Murid Hussain Shah on the charge of conspiring to murder Ghulam Haider, the father of Ghulam Safdar and maternal uncle of Manzur Hussain, appellants, both the appellants on the morning of 16th May 1954, shot dead Murid Hussain dead in the main bazar of Kalabagh. This allegation was sought to be supported by the evidence of three eye‑witnesses, namely, Khadim Ali Shah, Tasadduq Hussain Shah and Sadullah Khan. Khadim Ali who gave evidence as the second witness for the prosecution is a uterine brother, while Tasadduq Hussain (P. W. 4) is the brother‑in‑law of the deceased. The third witness Sadullah Khan is completely disinterested.
Khadim Ali was employed in a Railway Workshop at Man and the Sessions Judge rejected his evidence mainly on the ground that if the witness had been on leave from his workshop as alleged by him the prosecution should have, in order to corrobor ate him, proved an application for leave by him. The only material for this observation of the Sessions Judge was the following portion of the deposition of the witness in cross examination :‑
"I am a fitter in the Railway Workshop at Mari. In summer the workshop opens at half past six. 1 used to start at 6 o'clock from my house to begin my work in the Workshop at 6‑30. In the F.I.R. I did not dictate that I was on leave on the day of occurrence. I also did not dictate in the F. I. R. that I was going to see Murid Hussain at Mari. It is incorrect that at the tine of occurrence, I was in the Workshop and after learning about the occurrence, I got leave and came to the spot."
The witness was not confronted with any portion of the F. I. R. and the cross‑examiner wrongly assumed that in that report the witness had stated that he was on leave on the day of occurrence.
A reference to the Official calendar shows that the murder was committed, on a Sunday when generally Railway Workshops are closed. The Sessions Judge was, therefore, plainly incorrect in attributing to the witness a statement, which is not to be found either in his deposition or in the F. I. R., that on the day in question he had taken leave from the Workshop. Disagreeing with the Sessions Judge, the learned Judges of the High Court rightly pointed out that it is no part of the duty of the prosecution to prove all incidental matters that are mentioned by a witness in his deposition, and that if the matter appears to the defence to be material and it is intended to contradict a witness as to that matter, it is the, duty of the defence to produce evidence to rebut the statement of the witness. The view taken by the Session Judge was, therefore, entirely erroneous, and the High Court rightly held that the evidence of the witness could not have been rejected on the ground on which it was rejected by the Sessions Judge.
The next main reason given by the Sessions Judge for disbelieving the evidence of the three eye‑witnesses was that in their depositions they had differed as to the distance for which they had chased the culprits after the crime. , According to the calculations made by the Sessions Judge by reference to the plan, Sadullah Khan had chased the culprits for 42, Tasadduq Hussain Shah for 4 or 5 and Khadim Ali Shah for 26 karmas, but in his evidence all that Sadullah Khan bad stated was that the eye‑witnesses pursued the culprits who entered a galli close to the mosque, and then went in the direction of the hillock. This does not mean, as seems to have been supposed by the Sessions Judge, that the witness alleged to have pursued the culprits for a distance of 42 karams because the witness never stated that the‑ culprits were followed right upto the junction of the galli. Similarly, Khadim Ali Shah did not give the distance for which the appellants were chased, and all that he stated in his evidence was that the culprits were pursued but could not be caught. The learned Judges of the High Court, therefore, rightly pointed out that the fate of a criminal case does not depend upon the existence of such vague discrepancies in the statements of witnesses. The reasons which had been given by the Sessions Judge were obviously untenable, and after showing their worthlessness the learned Judges approached the evidence with a fresh mind, and came to the conclusion that it could be safely accepted. One of the three eye‑witnesses, Sadullah Khan, was completely independent and the Sessions Judge had not at all considered his evidence in the manner in which it should have been and was considered by the High Court. The law allows a right to the Provincial Government to appeal against an acquittal, and on being moved on any such appeal it is the duty of the‑High Court to review the evidence and to come to its own conclusions, bearing of course in mind the conclusion L arrived at by the Trial Judge, the reasons given for such conclusions and the advantage that he had in observing the demeanour of the witnesses and hearing their story viva voce. In convicting the appellants, the High Court has not contravened any rule or principle. There is, therefore, no occasion for us to interfere and we dismiss the appeal.
A.H Appeal rejected.