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Petitioner: MUHAMMAD SAJJAD VS Respondent: THE STATE
P L D 1960 (W
P L D 1960 (W. P.) Lahore 520
Before Shabir Ahmad and Muhammad Shafi, JJ
MUHAMMAD SAJJAD AND TWO OTHERS ---Convict‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 551 of 1959, decided on 19th January 1960.
(a) Charge‑--Several charges‑Finding not given in respect of one charge‑Accused deemed to have been acquitted of such charge.
(b) Criminal Procedure Code (V of 1898)----Ss. 211 & 291 Accused not entitled of ‑right to ask Court of Session to summon defence witnesses not named in list submitted to committing Magistrate‑Court summoning such witness does so only as a favour‑Whether Court bound to adjourn case for examination of such witness‑Witnesses present must be examined.
There is no provision in the Criminal Procedure Code entitling the accused to ask the Court of Session to summon any witness not named by him before the committing Magistrate, that is to say, the accused is not entitled to make an application in the Court of Session to summon any witness if he has not submitted a list of his witnesses before the committing Magistrate. Such an application has no legal sanction, and if the Court summons such witnesses it does so strictly speaking by way of a favour.
Where the accused made an application for summoning defence witnesses in the Court of Session and the Court summoned such witnesses for a particular day but the prosecution evidence conclude a day earlier when the accused's statement was taken wherein they were specifically asked if they wanted to produce any defence evidence and they replied in the negative Held, that the Court had not committed any illegality in asking the accused, as it did, whether they wished to produce any evidence.
If any one of the accused was anxious to examine any witness, then it was open to him to make a request to the Court to adjourn the case till the next day in order to examine the witnesses summoned for that date. If such a request had been made, the Court, although not bound by law to do so, would have, in all probability, adjourned the case in the interest of justice and examined the witnesses whom the accused wished to produce.
(c) Criminal Procedure Code (V of 1898)----Ss. 286 & 287 -Reading out calendar‑sheet and Committing Magistrate's order at trial in Court of Session, and transfer of these to Sessions file-- Unnecessary‑Practice not approved, but trial not vitiated.
There is no provision in the Criminal Procedure Code or in any other law which necessitates the reading of the calendar sheet or the commitment order in the open Court and transferring them from the Magistrate's file to the Sessions' file. If it is a general practice, then the sooner it is stopped the better, because it is a sheer waste of time and labour. Nevertheless there is no provision of law laying down that the reading of such documents to the assessors is prohibited. The commitment order is not a confidential or a secret document that the assessors should not be allowed to see it or to know what it contains. All that the commitment order contains is the statement of facts and the opinion of the Magistrate that a prima facie case against the accused has been established and, therefore, he is committed to the Court of Session. This the assessors can presume even without seeing the commitment order or its having been read out to them. There is no violation of any law if the Sessions Judge reads out the commitment order in Court which, however, is wholly unnecessary.
Such reading out will not vitiate trial.
Rahmat Khan v. The Crown P L D 1951 Lah. 228 and Tumahole Bereng v. The King P L D 1949 P C 47 ref.
(d) Criminal Procedure Code (V of 1898)-----Ss. 356 & 357 -Judge dictating evidence which was being typed on typewriter Preparation of memo. of evidence in Judge's hand not necessary., Hazarat Jamal v. The State P L D 1958 S C (Pak.) 383 ref.
(e) Criminal Procedure Code (V of 1898)----Ss. 309 & 537 Court's omission to require assessors to state their opinion on one charge‑Accused not convicted of that charge‑Accused not prejudiced‑Omission of mandatory provision, but held cured Section 537 exhaustively explained.
Per Muhammad Shafi, J.‑--It is only the violation or infringement of the mandatory provision of law that has the effect of causing damage to the trial, enquiry or other proceedings and rendering them illegal and void.
The non‑observance of discretionary provision of law or observance thereof with any error or irregularity which seems to be unthinkable does not have the effect of rendering the trial, enquiry or other proceeding illegal or void and so section 537 of the Code of Criminal Procedure will not have any application in such cases.
In interpreting section 537 of the Code of Criminal Procedure, some Courts have drawn a distinction between an illegality and irregularity, but this distinction, has no relevance because all violations of a mandatory provision of law are illegal and section 537 only deals with the violations of such mandatory provisions. There is a distinction, however, between the mandatory provisions which are prohibitory in nature and the mandatory provisions which are merely directory. Section 537 would not apply to the first category of the provisions, but would certainly apply to the second.
The view that section 537 cannot be applied to non‑com pliance with the mandatory provision of law but can be applied only where the error is a technical one arising out of inadvertence or accident or oversight could not be endorsed.
Briefly stated section 537 cures the violation of the mandatory provision of law in matters of procedure provided they have not resulted in miscarriage of justice. Each case shall have to be decided on its own particular facts, but then in arriving at the conclusion whether the violation has occasioned a miscarriage of justice or not, the Court shall have to take into account several factors, such as the language of the mandatory provision, the scheme and the object to be achieved, the nature of the violation and the gravity of the defect. If the illegality is so grave that prejudice will necessarily be implied or imported then section 537 of the Code of Criminal Procedure will not cure it. The test, however, will be whether the case of one party or the other has been prejudiced or not.
It was not possible to agree with the observation that simply because the mandatory provision of section 309 of the Criminal Procedure Code was violated, therefore, the trial was bad and for that reason convictions and sentences of the accused were liable to be set aside.
In a case where the charges are so inter‑connected that the truth or otherwise of the one would reasonably react on the truth or otherwise of the other, prejudice has to be presumed and the conviction would be illegal.
In all cases, therefore, the test should be whether the illegality had prejudiced the case of one party or the other, and if it has, the illegality, however minor or insignificant will not be cured by section 537, but if it has not, however great the illegality, it will be cured by section 537 of the Code of Criminal Procedure.
Where the accused were acquitted of the charge on which the opinion of the assessors was not obtained, held their case was not prejudiced and omission was cured by section 537.
The matter however would have been different if` the State had come up on appeal and had complained that the trial was bad on account of this omission.
Ibrahim and others v. The State P L D 1959 Lah. 715 ; Subramania Ayyar's case I L R 25 Mad. 61 ; V. M. Abdul Rahman v. The King‑Emperor A I R 1927 P C 44 ; Bar Khanu v. The State P L D 1958 Lah. 330 ; Abdul Majid son of Fazal Karim v. The State Criminal Appeal No. 324 of 1959/Murder Reference No. 89 of 1959 ; Prem Nath v. The State of Delhi P L D 1956 S C (Ind.) 197 and In the matter of the opinion of Narain Das I L R I All. 610 ref.
Shabir Ahmad, J. did not consider it necessary for the purposes of the present case to determine what the effect of non‑compliance with section 309 of the Code of Criminal Procedure would be if the trial has resulted in conviction for more than one offence though the assessors were questioned with regard to only some of them, because in the present case no conviction was recorded with regard to the offence about which the opinion of the assessors was not taken.
(f) Criminal Procedure Code (V of 1898)----S. 239 (d) Clauses of S. 239 not exclusive of one another‑More than one offence committed In course of one transaction by two accused Abetment of only one of such offences by third accused‑Abettor may be tried together with other two accused.
Per Muhammad Shaft, J.‑---The different clauses of section 239 of the Criminal Procedure Code are not exclusive of each other. If the offences are committed in the course of the same trans action but the persons committing them are covered by more than one sub‑clause of section 239, then they can be tried together and their trial will not be bad in law. There is no indication in section 239 itself to show that the different sub clauses are mutally exclusive. The question should be looked at from the point of view of transaction and not offences. If transaction is the same but offences are different, the clauses are inclusive of each other, but if transactions are different, and even if the offences be the same, they will be subject to other provisions of the Criminal Procedure Code exclusive of each other.
When a person instigates a person to commit an offence or engages with one or more other person or persons in any con spiracy for the commission of the offence, or intentionally aids by act or illegal omission the commission of that offence, the offence of abetment is committed and is complete. Where, however, the person is to be punished for the abetment when the offence is actually committed, then the offence of abetment is a continuing offence and is complete only when the principal offence is committed.
Three accused were charged as follows in respect of offences committed in the course of a single transaction :‑
A under sections 302/ 109, P. P. C.
B and C under sections 302/34 and 323/34, P. P. C.
Held that the three accused could be tried together.
Shabir Ahmad, J., however, found it difficult to agree that for the purposes of section 239 of the Code of Criminal Procedure the offence of abetment is to be deemed to be committed only when the substantive offence is committed, and was of opinion that non‑compliance with the provisions of section 239 of the Code of Criminal Procedure stood cured by reason of section 537 of that Code.
M. Sleem and A. A. K. Lodhi for Appellants.
M. B. Zaman, A. A. G. for Respondent.
Dates of hearing : 9th and 10th December 1959.
JUDGMENT
MUHAMMAD SHAFI, J.‑‑--Ata Muhammad, aged about 50 years, son of Ghulam Muhammad, his son Muhammad Sajjad, aged about 20 years, and his tenant and servant Muhammad Sharif, aged about 22 years, son of Nawab, were tried by the learned Sessions Judge, Gujranwala, the former under section 302/109, P. P. C. and the latter two under sections 302/34 and 323/34, P. P. C. Precisely the charge against them was that Ata Muhammad abetted, whereas the other two accused, in furtherance of their common intention, committed the murder of their co‑villager Muhammad Khan, aged about 40 years, son of Hasan Muhammad. The latter two at the same time but without being abetted by Ata Muhammad, caused simple injuries with blunt weapons, in furtherance of their common intention to Mst. Aimna Bibi (P. W. 24), a distant paternal cousin of the aforementioned Muhammad Khan, and Mst. Zainab Bibi (P. W. 25), his mother, who came to rescue him, at about morning time on the 29th of May 1958. The learned Sessions Judge has convicted Ata Muhammad under section 302/109, P. P. C. and the other two accused under section 302/34, P. P. C. and has sentenced them all to death, and having done so has forwarded the record on to this Court for the confirmation of the sentence. He has not said anything in his judgment about the charge under section 323/34, P. P. C. He has neither convicted Muhammad Sajjad and Muhammad Sharif under this A section nor acquitted them. It will, therefore, have to be taken that they were by implication acquitted of this charge. All the three accused have come up on appeal to this Court. This order will dispose of both the appeal and the reference.
2. Giving the motive for this murder, it was alleged by the prosecution that one Imam Din was the Lambardar of Kot Ali about fourteen years ago. He died leaving behind a daughter by the name of Mst. Sardar Bibi. As he had left no son, there fore, the Lambardari was given to his brother's son Muhammad Hussain. Ata Muhammad considered himself entitled to the Lambardari. It has, however, not been brought on the record as to what was the basis of his claim, but he consulted revenue papers in order to replace Muhammad Hussain but found that they did not support his claim. Although he could not dislodge Muhammad Hussain from the coveted Lambardari, yet he turned bitterly against him. In June 1949, this Muhammad Hussain mysteriously disappeared. A report seems to have been made of his disappearance but no copy of it has been placed upon this record. On the 1st of July 1949, however, his mother- in‑law Mst. Hasan Bibi made a report that Muhammad Hussain was murdered by Ata Muhammad appellant and one Khushi Muhammad son of Rehman who had taken him away from his house and were last seen in his company by Bahawala son of Jafar and Khushi son of Haji. It appears that Ata Muhammad and Khushi were arrested and indicted for the murder of Muhammad Hussain but were eventually acquitted. Muhammad Hussain never returned. He had three daughters by the name of Sughra, Surayya and Rasul Bibi. It is alleged that Ata Muhammad appellant took these girls as well as Mst. Sardar Bibi, daughter of Imam Din, the first Lambardar, under his own protection. He got Mst. Sardar Bibi married to his son Tasadduque Husain and Rasul Bibi, daughter of Muhammad Husain to his other son, Muhammad Sajjad appellant. He also took into possession the land belonging to these girls. At the time of the disappearance of Muhammad Hussain, Muhammad Khan who now figures as the deceased person, was in the Army. He left military service and came over to the village and was appointed Lambardar in Muhammad Husain's place. This annoyed Ata Muhammad immensely because he was looking forward most eagerly to be appointed as Lambardar. That they became inimical to each other is clear from the following incidents.
3. About four years prior to this murder, Muhammad Khan was fired at and the charge was brought against the three appellants as well as against Nawab son of Qutubuddin, Inayat son of Sardar Khan, and Ghulam, son of Lal. They were challaned but were acquitted by Mr. Khurshid Ahmad, Magis trate, Gujranwala, by his order dated 20th of December 1955.
4. On the 26th of July 1957, Muhammad Sharif appellant made a report that Ata Muhammad appellant had been very severely injured. Four persons were challaned, namely, Dilawar Husain, Pir Muhammad, Nura and Rahman. The name of Muhammad Khan deceased was placed in column No. 2 of the challan. All these persons were finally acquitted on the 9th of December 1957. As the enmity between the parties had reached a stage when it was considered by the police that their being left without securities was hazardous to the community, it challaned them under section 107/151, Cr. P. C. The persons arrayed on one side were the three appellants, Abdul Karim son of Sardar Khan, Nawab and Ghulam. On the other side, the persons challaned were the deceased, Sardar Khan son of Hasan Din, Muhammad Yar son of Nazar (P. W. 18) and Khushi Muhammad son of Fateh Ali (P. W. 22). The parties, however, com promised this case, and were therefore, discharged on the 18th of February 1958.
5. In spite of this compromise, the parties, it is alleged, remained at daggers drawn and were on the look‑out for an opportunity to harm the other. This opportunity, it is claimed, was seized by the three appellants on the 29th of May 1958.
It is alleged that they had actually prepared themselves for committing this murder about six or seven days prior to this occurrence. Ata Muhammad had sent for Lal (P. W. 19) and had asked him to participate in the commission of this crime. This Lai happens to be the real maternal uncle of the deceased. It is stated by him that his daughter was married to the deceased while in exchange the deceased's sister was married to his son. The deceased divorced his daughter and consequently the sister of the deceased was also divorced by his son. This created bad blood between them, and Ata Muhammad appellant had knowledge of it. Taking advantage of the bad relations, Ata Muhammad sent for Lai and told him of his design to murder Muhammad Khan and requested Lai to be present at the time when the murder was committed. Lal refused to take part in the murder of the deceased but he expressed his willingness to join them in assaulting the deceased and causing him any harm short of death. This was not acceptable to Ata Muhammad and he, therefore, did not insist on his participation in the crime.
6. The preparation of Ata Muhammad for the murder of Muhammad Khan has also been attempted to be proved by the evidence of Wali Muhammad (P. W. 20) who stated that he had loaned a sum of Rs. 100 to Ata Muhammad and when he demanded it back from him he told him that he had sold 180 maunds of wheat as he required money for murdering Muhammad Khan. This perhaps he said in order to show that he needed every single pie that he possessed and could get hold of in order to achieve his evil object and could not afford to repay the debt.
7. After preparations had been completed, it is asserted by the prosecution that Ata Muhammad appellant left for Sargodha with all his bag and baggage and his family, so that after the murder of Muhammad Khan he could, with ease, abscond.
8. Then on the day of the occurrence at about morning time Muhammad Sajjad and Muhammad Sharif armed themselves with big knives and having obtained the services of a third person, who accompanied them armed with a country‑made pistol, went to a field belonging to the deceased and Bahawala (P. W. 23) jointly. Muhammad Khan deceased was at the critical time seen sitting on a band while Bahawala (P. W. 23) was ploughing the field. The culprits sat with Muhammad Khan for a while. Thereafter, it is alleged that they caught hold of him from his arm and dragged him into a vacant site where the shoe‑makers carry on their tanning work. The deceased raised an alarm and so did Bahawala. Both Muhammad Sajjad and Muhammad Sharif took out chhuras from their trousers' folds and began to cause injuries to Muhammad Khan. The stranger who had pistol with him struck him with the butt‑end of the pistol on his face. On hearing the alarm, Mst. Aimna Bibi (P. W. 24), Mst. Zainab Bibi (P. W. 25) and Inayat (P. W. 26) arrived at the spot. Mst. Aimna Bibi fell upon Muhammad Khan but the stranger hit her with the butt‑end of the pistol and dragged her away. Mst. Zainab Bibi then fall our Muhammad Khan but she was also treated by the stranger in the same manner. Bahawala (P. W. 23) and Inayat (P. W. 26) wanted to go to the help of Muhammad Khan but they were kept back at the point of pistol by the stranger. After the accused had caused numerous injuries to the deceased, they left the spot. Bahawala wanted to go to the police station to make a report but he learnt that Muhammad Ashiq (P. W. 27), Sub‑Inspector, was in village Noinwala, situated at a distance of a mile from the scene of occurrence. So he went there and lodged a report with him at 9‑30 a.m. The Sub‑Inspector went to the spot and after preparing the injury statement and the inquest report of Muhammad Khan dispatched his dead body to the mortuary, where a detailed autopsy revealed that he had no less than forty‑six injuries on different parts of his body. Some of these injuries were caused by sharp‑edged and some by blunt weapons. The sharp‑edged weapon injuries had various dimensions, e.g., 2 " x ", 1 " x '', 1 " x ", 3/8"x ". The two aforementioned ladies were also examined by the doctor on the 30th of May 1958. Mst. Zainab Bibi was found to have a small contusion, 2 x 1", on the left side of the face, and another contusion, 2" x 1", on the outer side of the right forearm. Mst. Aimna Bibi had a contusion on the back of the right shoulder, a contused wound on the level of the lumbar region, and an abrasion on the back of the left elbow. According to the statement of the doctor, all these injuries were caused within twenty‑four hours of the examination. On a question being asked from the doctor, it was stated that the duration between the infliction of the injuries and examination of the injuries might extend to thirty‑six hours.
9. All the accused were found missing from the village. Muhammad Sajjad and Muhammad Sharif, however, were produced before the police on the 9th of June 1958. Ata Muhammad appellant was arrested on 25th October 1958. The stranger who accompanied Muhammad Sajjad and Muhammad Sharif was said to be one Fazal Muhammad who was arrested and challaned but discharged by the learned committing Magistrate. His case is not before us now.
10. At the trial Bahawala (P. W. 23), Mst. Aimna Bibi (P. W. 24), Mst. Zainab Bibi (P. W. 25) and Inayat (P. W. 26) appeared as ocular witnesses. Lal (P. W. 19) and Wali Muhammad (P. W. 20) appeared to depose about the facts which were intended to prove that Ata Muhammad abetted the murder. Abdul Karim (P. W. 21) was produced to show that Muhammad Sajjad had sold to him 79 maunds of wheat and five seers of gram for Rs. 1,157‑15‑0 on the 17th of May 1958. Probably, this witness was also produced to show chat the appellants were collecting money in order to hire persons for assisting them in the assassination of Muhammad Khan. Khushi Muhammad (P. W. 22) was produced to show that about four or five days before the murder of Muhammad Khan he had met Ata Muhammad accused‑appellant in his village. He was tatting away his family and cattle and on an enquiry told him that he was going to Sargodha to attend a marriage. Ata Muhammad is further alleged to have told him that he vf9uld be there in Sargodh4 for about eight months or so, Khushi Muhammad (P. W. 22) expressed his surprise and asked him as to what would happen to his crop, to which he replied that it would be looked after by his son Muhammad Sajjad.
11. All the three accused denied the charge. Muhammad Sajjad stated that on the day of occurrence he was sick and was admitted into a hospital in District Gujrat. Muhammad Sharif accused‑appellant also made a similar statement and said that he was in Gujrat Hospital looking after Muhammad Sajjad who was lying ill there. Ata Muhammad accused‑appellant admitted his previous enmity with the deceased but denied having abetted the murder. No question was asked from him to explain away his absence from the village from the date of occurrence to the date of his arrest but in reply to a general question as to whether he had anything else to say, he stated that his permanent residence was in Chak No. 19, District Sargodha, and not in the village of the deceased.
12. The learned counsel for the appellants before arguing the appeal on merits raised the following five technical objections in order to show that the trial was bad and was, therefore, liable to be quashed :‑
(1) That the accused had put in a list of witnesses whom they wanted to examine in defence, on the 7th of May 1959. Learned Sessions Judge ordered that the witnesses should be summoned for the 20th of May 1959. The trial, however, concluded on the 19th of May 1959, and on a question being asked from the accused, they were recorded to have stated that they did not want to produce any defence. The argument is that the learned trial Court could not legally ask the accused one day earlier than the date fixed for the examination of defence witnesses as to whether they wanted to examine anybody as defence witness or not. This question, it is con tended, should have been asked from them only on the 20th, the date for which the witnesses had been summoned.
(2) That the learned trial Court has mentioned in one of its orders recorded on the 18th of May 1959, that the calendar, the charge‑sheet and the commitment order as well as the statements of the two doctors were read out in open Court and transferred to the Sessions file. This, it was contended, was illegal because the reading of the committal order to the assessors was not warranted by law and it must have prejudiced the accused's case.
(3) That the learned trial Judge has not prepared a memo. of the evidence which he was recording and for having dispensed with it he has referred to the Supreme Court…
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