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Petitioner: ADALAT AND ANOTHER VS Respondent: THE CROWN
P L D 1956 Federal Court 171
P L D 1956 Federal Court 171
(Appellate Jurisdiction)
Present: Muhammad Munir, C. J., A. S. M. Akram,
M. Shahabuddin and Muhammad Sharif, JJ
ADALAT and another‑Appellants
Versus
THE CROWN‑Respondent
Criminal Appeal No. 10 of 1956 decided on 27th February 1956.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 6th September 1955, in Criminal Appeal Case No. 13 of 1955).
(a) Leave to appeal‑----Self‑contradictions in evidence of important witnesses.
Leave to appeal was granted by the Federal Court in view of self‑contradictions in the evidence of two important witnesses.
(b) Evidence‑---High Court's appreciation of, in criminal appeal‑Grounds for interference by Federal Court.
The Federal Court would interfere in the High Court's appreciation of evidence in criminal appeal, only if the High Court in acting upon the evidence departed from any principle of law or any other well‑settled rule by which evidence is judged in criminal cases.
Where a prosecution witness in a murder case who lodged the F. I. R. as an actual witness of the crime had attempted to vary Isis deposition in certain respects in his examination in chief as also in his cross‑examination at the trial in the Court of Session, which depositions were wholly irreconcilable with each other, thereby giving the impression to the Court that he was out to help the accused as far as he could, and the High Court believed the depositions which were borne out by the F. I. R. but characterised the variations as false and deliberate, giving reasons for their conclusions : Held, that the case presented no such features as induced the Federal Court to interfere in the course of criminal justice.
(c) First Information Report‑---Used by prosecution to contradict witness‑Held, report not used as a piece of sub stantive evidence‑‑Criminal Procedure Code (V of 1898), S. 154 FvIdence Act (I of 1872), S. 157.
A prosecution witness, in view of his hostile attitude, was allowed to be cross‑examined by the Public Prosecutor who, by such cross‑examination, brought out certain contradictions between his statement in Court and the F. I. R. lodged by the witness at the police station.
The Court of Session, and the High Court, in upholding conviction of the accused, had adverted to the contents of the F. I. R., in which the witness had described the details of the murder, and to the subsequent corroboration of the report by the result of the medical examination.
Held, by referring to the Report in that manner the two Courts had not at all used it as a piece of substantive evidence In law a prosecutor is entitled with the permission of the Court, to cross‑examine a prosecution witness with reference to his previous statements, and it does not, and cannot follow from this that by so doing he entirely gives over the witness so as not to be able to rely on any portion of his evidence. A First Information Report is not an exception to this rule because a report being no more than a previous statement, if the maker of it is examined in Court it can be used not only by the defence for the purpose of contradicting him but also by the prosecution for the purpose of corroborat ing and, with the permission of the Court, for the purpose of contradicting him. It is true that the portion by which the witness is contradicted by the prosecution cannot be treated as substantive evidence in the case, but' there is no bar to its being used to support the argument that a certain statement in the deposition of a witness in examination-in‑chief is not true. Therefore, the approach to the evidence was right both in the High Court and the Court off` Session, and no error of law or any general principle by which evidence is to be judged had been committed.
(d) Evidence‑‑---Appreciation of‑No general rtes can be formulated.
Per Muhammad Munir, C. J.‑----Generalizations relating to the appreciation of evidence are not at all rules of law, and if they were ever to be treated as such, the result, in my humble opinion, would be chaos and would deprive Judges of the lower Courts who have to decide on conflicting evidence, of that freedom of reasoning and action which is the first requisite of a judicial investigation. If we were to say that, however definite the evidence of a witness in examination‑in‑chief may be, it must be read subject to all the qualifications, however dishonest, which a witness introduces in his cross‑examination we would be paving the way for miscarriage of justice on a large scale.
Enunciation, by the Federal Court, of genera for the appreciation of evidence, in criminal cases, was not desirable in view of the fact that such generalizations were bound to be treated by the lower Courts as inflexible standards to judge evidence.
(e) Evidence‑-----Self‑ contradictions in evidence of witness in criminal proceeding‑Court of fact to adopt one part or reject the whole by a rule of prudence ‑Federal Court would be reluctant to interfere.
It is open to a Court of fact either to reject the whole of the evidence of the witness as untrustworthy or to rely upon the portion which in its view fits best with the probabilities and the facts and circumstances present in the case.
The matter, rests largely on the judicial discretion bf the Court and no hard and fast rule can be laid down in respect to it.
The Federal Court would be reluctant to interfere with the unanimous decision of the two Courts below as well as the assessors on a question of fact while exercising their restricted powers in criminal matters.
(f) Witness ‑-----Self‑contradictions ‑ Basically dishonest Giving evidence from motive other than stating truth Unreliable.
A witness who had indulged in self‑contradictions, saying in examination‑in‑chief that he had seen the accused clearly but adding in cross‑examination that the accused bad muffled their faces and it was by their stature that he had recognised them, whose version as to the weapon used in the murder and the situation of the gunshot injury conflicted with the medical evidence, was a basically dishonest witness and was giving evidence, with a motive other than stating the truth. Such a witness's version in the examination‑in‑chief has not necessarily wholly true. The doubt attaching to his evidence could not be satisfactorily resolved by the bare suggestion that he was won over.
Qutba v. Crown P L D 1954 F C 197 at p. 202 ref.
(g) Benefit of doubt‑-----Must be given to accused‑Violation of principle by High Court‑Interference by Federal Court.
One of the fundamental principles of the criminal law as at present administered is that ‑ the benefit of the doubt arising on any material point must be given to the accused person.
Where this principle is violated in the treatment of evidence by the High Court, the Federal Court would interfere in appeal.
(h) Federal Court‑---Judges equally divided in opinion Order of High Court to be maintained.
Nazir Ahmad Khan, Senior Advocate, Federal Court, (Fazal Elahi, Advocate, Federal Court, with him) instructed by M. Siddiq, Attorney for Appellants.
A. R. Changez, Advocate‑General of West Pakistan (M. Z. Kitchlew, Advocate, Federal Court, with him) instructed by Ijaz Ali, Attorney for Respondent.
Dates of hearing : 17th and 18th January 1956.
JUDGMENT
MUHAMMAD MUNIR, C. J.‑---This appeal, by special leave, is by Adalat and Bahadur, who were sentenced to death by Sardar Ata Ullah Khan, Additional Sessions Judge, Gujrat, for the murder of Mst. Fazal Begum and whose appeal was dismissed by a Division Bench of the High Court of Lahore.
The murdered woman belonged to Mouza Ganje but had been married to Sardar Khan of village Sukh Chain where she had been residing till the death of her husband which occurred about 2 months before her murder. Sardar Khan had a brother Akbar Khan who started quarreling with ' his brother's widow and accused her of immorality. Mst. Fazal Begum's husband had left some property, movable and immovable, and the allegation of the prosecution is that Akbar Khan wanted to drive away Mst. Fazal, Begum from her husband's house in order to usurp her property. Mst. Fazal Begam complained of Akbar Khan's conduct to her brother Hakim Ali who brought her from Sukh Chain to his own village Mouza Ganje. As Mst. Fazal Begum was not willing to be deprived of her property, she went to Gujrat" with a man also named Sardar Khan in order to complain against Akbar Khan's high handedness and to seek legal protection from the district authorities. On 14th June 1954, Sardar Khan and Mst. Fazal Begum caught a train at Gujrat and got down at ‑Railway Station Lalamusa where, as previously arranged, Hakim Ali was waiting for her with a mare in order to take her to Mouza Gunje. From Lalamusa, Sardar Khan went away to his own village with another man, and Mst. Fazal Begum with her infant daughter and Hakim Ali set out for Monza Gunje. Hakim Ali, who is a cripple completely, unable to walk, was riding the mare with Mst. Fazal Begum's child in front of him, while Mst. Fazal Begum was walking. When they reached near Chak garwani, a village only 1 miles away from Lalamusa, the appellants appeared from the west at a distance of 20 to 25 yards from Hakim Ali. Adalat Khan had a gun, while Bahadnr had a stick. They came nearer and Bahadur struck Mst. Fazal Begum with a stick and felled her on the ground. Adalat then brought the muzzle of his gun over the right side of her chest and fired and killed her instantaneously.
After the murder Hakim Ali went to the Police Station at Lalamusa, leaving the dead body in the charge of some villagers. There he dictated to Mumtazali A. S. I. at 6‑45 p.m. a report narrating the circumstances in which his sister was done to death by the appellants. He alleged in that report that the murder was committed in front of him by the two appellants, that Bahadur first struck Fazal Begum on the forehead with a stick, that after she had fallen on the ground by the injuries thus caused Adalat fired his gun over her prostrate body hitting her above toe right side of the chest, that the culprits were chased by the villagers and that being a stranger to the locality he was unable to name the persons who had collected on the scene of the crime.
The deceased woman's body was sent to Civil Hospital, Gujrat, where it was examined by Doctor Bashir Ahmad, Medical officer on 16th June 1954, at midday. Apart from some minor injuries the Doctor found two contused wounds on the head, one oil the left side of forehead and the other on the outer part of the right eye‑brow under cacti of which there was a depressed fracture of the skull. There was also a lacerated wound 2 '' x 2 '' x 6" on the upper part of the chest, 4" above tide right nipple, penetrating obliquely into the chest cavity. Margins of this wound were lacerated and blackened and its direction was downwards and to the left till it entered the chest cavity after fracturing the ribs. Three penetrating wounds were found on the lumbar region and these were the exit wounds of large pellets which had entered through the chest, their edges unlike the edges of the chest wound being everted. Two card board pieces were, taken out from the liver and another two from around the right kidney region. One of the swellings on the back was due to a large pellet which lay embedded in the musculature of the lumbar region. The death was due to gunshot injury of the right lung, heart and abdominal viscera.
Apart from the formal evidence, 4 witnesses were produced by the prosecution in support of its case Hakim Ali (P. W. 9) claimed to be an eye‑witness, Sultan (P. W. 10) very near an eye‑witness, and Bahadur (P. W. 7) and Nizam Din (P. W. 8) deposed to having heard a confession from both the appellants. The learned Sessions Judge disbelieved the evidence of confession, but agreeing with the unanimous opinion of the assessors considered the evidence of Hakim Ali and Sultan as a safe basis for conviction. The same view of the evidence was taken in the High Court by both the learned Judges who heard the appeal.
The appeal to this Court raises no question of law and leave to appeal was given only in view of some self‑contradictions that appeared in the evidence of the two important witnesses Hakim Ali and Sultan. From the manner in which these witnesses gave evidence the impression that the learned Additional Sessions Judge who tried the case and the learned Judges of the High Court who examined the evidence on appeal received was that for one reason or the other they had colluded with the appellants or their friends and had on certain important points made admissions in order to favour the appellants. Despite this dishonest attitude on the part of the witnesses, however, both the Courts felt convinced that the murder was committed by the appellants and this conviction, as expressly stated by them, was the result of the evidence in the case. Prima facie, therefore, there is as little ‑ reason to interfere with the conviction as there would have been to interfere with the verdict of a jury if the evidence with proper direction had been placed before them and they had believed it. The only question involved in this appeal, therefore, is whether the learned Judges of the High Court have in acting upon the evidence departed from any principle of law or any other well‑settled rule by which evidence is judged in such cases.
In order to discover whether any sufficient reason for interference in this case exists or not, it is necessary to state what the evidence on the record was. Hakim Ali, being examined as the ninth witness for the prosecution, narrated precisely the same story as he had done in the First Information Report, including the allegation that he had fully identified the appellants at the time of the occurrence, except that he described the weapon used by Adalat as a rifle in one place and as a gun in another and gave a. different description of the manner in which the weapon was used by him. In the F. I. R. the witness had stated that before firing Adalat had brought the muzzle of the gun over the right side of the chest of the woman, whereas in his examination‑in‑chief he deposed that the muzzle was directed by this appellant towards the top of the back of her left shoulder. In cross‑examination, however, the witness made a series of attempts which were wholly irreconcilable with his statement in examination‑in -chief and which could not but convey to the Court the impression that the witness was out to help the appellants as far as he could. Thus having stated in examination‑in‑chief that he had fully identified both the appellants the witness stated that the culprits had masked their faces and that he had identified them merely from their sizes. As regards the weapon, he said that it was a rifle in which a bullet and not shot is used. He also admitted that he, was inimically disposed towards both the appellants and that this enmity was one of the reasons for his having mentioned them as the murderers. In view of the attitude adopted by the witness the public prosecutor requested the Court to permit him to cross‑examine the witness. The necessary permission being given, the public prosecutor confronted the witness with every important part of the story which he had told when making the report to the police and which was in direct conflict with his statement in Court. The main points brought out in the cross‑examination were that is the First Information Report the witness had stated that Bahadur had given several blows on the forehead of the deceased, that the weapon fired was a gun, that Adalat appellants had shot the deceased near the right breast, and that he had not stated there that he merely identified the culprits by their sizes. A further opportunity to defence counsel was given to cross- examine the witness who admitted that he had given a true account of the whole incident before the Committing Magis trate. We do not know what his statement before the Committing Magistrate was because neither the prosecution nor the defence counsel requested for its transfer to the record at the trial.
Sultan (P. W. 10) stated in his examination‑in‑chief that after the firing he had seen the appellants running to the west of the village, that he had some other persons had chased them and that while Adalat had a gun Bahadur had a stick. In his cross‑examination by the counsel for the appellants, the witness was confronted with his statement before the Committing Magistrate where he had stated that he had seen Bahadur give two blows to the woman with a stick and that when she had fallen down. Adalat had fired at her. The witness denied having made that statement, though he admitted that before the appellants had run away from the scene he had seen Adalat bending over the body of the woman with his gun. As regards the identification of the culprits, he said that both the appellants had chaddars wound round their turbans but their faces were clearly visible. This witness has been con sidered by the High Court to be completely independent and though some witnesses say they did not see him on the scene of the murder there is no doubt that his statement was recorded by the police shortly after the crime.
The manner in which the learned Additional Sessions Judge approached the evidence will be apparent from the following passages in his judgment :‑--
"Although we have found that Hakim Ali, is trying to help the accused that by itself would not prove that we must believe entirely what he stated in his report before the police. He has condemned himself by his own behaviour and we shall have in any case to receive his evidence with great caution. The only satisfaction that we have is due to the fact that at the earliest opportunity hardly two hours after the occurrence, he dictated a story before the police in which he had named the two accused as the culprits and had not mentioned even indirectly that he could have made a mistake about their identity. We have also found that he had really no reason to be so intensely inimical towards the accused as to save the real assailants and name them simply to gratify his revenge. We must, therefore, try to find out whether sufficient corroboration to the story that he told before in the examination‑in‑chief and in the F. I. R. exists or not. If it exists then there is no reason for us to suppose that the accused have been falsely involved but if we cannot get sufficient corroboration the benefit of doubt shall have to be given to the accused.".
"Next we come to the evidence of Sultan, P. W. 10. It was stated that Mst. Sardar Begum who is the wife of the son of this witness was abducted by Fazal, son of Rehman. That after the abduction she was kept by Bahadur, accused for some time. That the witness went to Adalat accused in order to take his help in recovering the girl but that Adalat refused to do so. When asked about this matter the witness stated that Adalat was not helping Bahadur, accused, in retaining her. Later on when the question was persisted and it was suggested that both the accused are friends he replied that on account of their friendship Adalat may be helping Bahadur in this wrongful detention. It is obvious, therefore, that some sort of favourable reply was actually forced out of the mouth of this witness. The allegation that Sultan, P. W. on account of these hostilities is trying to falsely implicate the accused cannot be received because in spite of tightening his evidence against the accused he is actually making it weaker before us from that which he gave before the Committing Magis trate. Before that Officer he had stated that he had actually seen Mst. Fazal Begum and her brother coming from Lalamusa side and being attacked. Before us he has frankly stated that when he first saw towards the spot on hearing the gun fire he found Adalat, accused, with the gun bending a little and then both the accused running away. If this witness was really hostile towards the accused he could not be expected to make this favourable admission helping the defence. The witness has stated that although the accused had bound chaddars around their turbans their faces were entirely visible. He did not express any doubt about their identity."
His conclusions he summed up as follows :‑
"Now, we come to the final stage in the discussion and have to find out whether it is proper to convict the accused for the murder of Mst. Fazal Begum under the facts stated above or not. The three assessors who assisted me in this trial were of the opinion that in spite of the tendency of Hakim Ali to help the defence there is sufficient material on the tile from which a complete satisfaction can be acquired that the two accused and no other committed the murder of Mst. Fazal Begum in the manner stated by the prosecution. After carefully considering the case, I have no hesitation in agreeing with them. Unfortunately the murder of a woman in this part of this Province is not considered a very important a0air. In most cases such a murder is easily compromised generally by the promise of the hand of a daughter or near relation of the accused to the son or the near relation of the complainant. Although we have no definite evidence whether such a compromise has taken place or not we can be quite sure that Hakim Ali is trying to injure the prosecution case as much as possible although at an earlier stage he was equally enthusiastic in condemning the two accused now standing their trial before us. It is highly insulting to give an impression to the prosecution witnesses that the fate of the accused is entirely in their hands. That in most cases it is so cannot be denied but there are cases in which it is possible to sift the truth from the falsehood and wherever it is possible the demand of justice requires that such a discrimination should be made and the guilt or innocence of the accused properly judged from the evidence proved to be correct. In the case before us the accused have, no doubt, been trying their best to win over the prosecution witnesses. Their efforts have indeed succeeded to an appreciable extent but it would not be fair to the cause of justice to let the accused reap at reward for interfering with its course. The murder of Mst. Fazal Begum was unprovocated and committed in a most cruel manner. Adalat and Bahadur are admittedly friends of each other and constantly associate with each other. If they were not the real culprits we would not expect their names to be inserted on suspicion."
"From what has been stated above I feel convinced that Hakim Ali actually saw the two accused committing the murder of Mst. Fazal Begum and that immediately after the murder these two accused were seen armed as alleged by at least three persons who have come before us to speak about it. This leaves no doubt in my mind that the accused are guilty of having made an attack upon Mst. Fazal Begum with the intention of murdering her. Each of the accused, therefore, is responsible for the act of the other."
In the High Court, the evidence of these witnesses was subjected to a more critical examination, and every point, whether it arose from an apparent self contradiction or an admission in favour of the appellants, was considered and disposed of. The learned Judges thought that the evidence of witnesses has to be judged in the light of the circumstances of each case, that no principle universally applicable to such cases exists and that what has to be seen is whether the evidence considered as a whole and bearing in mind the criticism to which it is open produces in the mind of the Judge who has to take a decision in a grave matter like a trial for murder such a conviction as would m errant him, as a of under man, to convict without any reasonable chance of error Stating this to be the position they thus stated their conclusions :‑
"Bearing the above principle in view, we proceed to discuss the evidence of Hakim Ali P. W. in order to see whether his statement in the examination‑in‑chief can be relied upon to support a conviction in this case. Akbar Khan (P. W. 6), a formal witness in the case, on whose statement the learned counsel for the defence places great reliance, has admitted in unequivocal terms that Hakim Ali P. W. was present at the spot when the murder took place. He has further admitted that he was all alone at that time. There is, thus, no doubt that Hakim is an eye witness of the occurrence and there was none present at the spot to suggest to him that the present appellants should be falsely implicated in the case. There is also no doubt that Hakim Ali lodged the first information report within half an hour of the occurrence at the Police Station, Lalamusa, in which he implicated both the appellants by name and gave complete details of the occurrence which he could not have been able…
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