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Petitioner: IMRAN ULLAH VS Respondent: THE CROWN
P L D 1954 Federal Court 123
P L D 1954 Federal Court 123
(Appellate Jurisdiction)
Present: A. S. M. Akram, M. Shahabuddin and
A. R. Cornelius, JJ.
IMRAN ULLAH‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 19 of 1953, decided on 3rd February, 1954.
(On appeal from the judgment and order of the High Court of judicature at Lahore, dated the 31st October, 1952, in Criminal Appeal No. 319 of 1952).
(a) Criminal Procedure Code (V of 1898), S. 423‑"Hearing the appellant or his Pleader"‑ Scope‑Evidence of some witnesses was still to be read by counsel and his comments and arguments still to be made when Court Passed order dismissing appeal‑Whether amounts to denial of hearing‑Duties and rights of counsel in appeal.
The appellant obtained leave to prefer the present appeal on the ground that at the hearing of the appeal in the High Court, his counsel was not given a fair and full bearing with the con sequence that he was not able to present his case before the Court properly and adequately.
Counsel for the appellant stated that while the evidence of some of the witnesses still remained to be read and comments and arguments to be made, the Court passed the order dismissing the appeal. This statement of the appellant's counsel was not seriously challenged or controverted before the. Federal Court by the respondent.
Held, per Akram, J.‑"Section 423 of the Cr P. C. is imperative in its terms and provides amongst other matters that "after perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears the Court may if it considers that there is no sufficient ground for interference dismiss the appeal In the circumstances of the present case I do not think it can be reasonably said that section 423 Cr. P. C. had been sufficiently complied with. The statutory right of appeal confers a right of re‑hearing of the whole dispute unless expressly restricted in scope and the appellate Court is not confined to the reasons which have been given by the Court below as the ground of its decision. The appeal Court has to consider the controversy entirely afresh, both as regards facts and as regards law, and can substitute its own opinion in place of the decision taken by the lower Court. The right of a counsel to being heard adequately, in a trial or in an appeal given by statute, is an indefeasible right which cannot be transgressed by Courts of justice. It is one of the universal rules of natural justice the breach of which renders a judgment inoperative, irrespective of there being or not being a miscarriage of justice."
Case, however, not remitted to High Court for re‑hearing, but disposed of on merits.
Wood v. Woad, (1874) L R 9 Ex. 190; Dal Singh v. The King‑Emperor, 26 C L J 13 at p. 23 ref.
Per Cornelius, J.--‑"An appeal is not, at least in the sense relevant for the present discussion, a re‑hearing, but only a hearing by a Court of error. The expression "hearing" is employed in section 423 (1) of the Cr. P. C. to indicate compendiously both the right of address possessed by the appellant as well as the duty of listening to the address imposed upon the Court. It is an expression of the simplest kind, and consequently must be given the widest connotation. I find it impossible to read into the word "hearing" anything in the nature of an obligation as to the pattern of an argument or the form which it is to, follow, and any suggestion that observance of (any kind of ritual is involved would be, in my opinion, obnoxious to its true meaning. In consonance with its simplicity, the word carries no suggestion except such, as are related to matters of substance."
Cautioning against a narrow construction of his judgment his Lordship observed :‑
"Nothing which has fallen from me in this judgment should be interpreted as applying to appeals in general. I have already employed expressions to indicate the importance of maintaining the complete independence of an advocate in his choice of method, before an appellate Court. His duty and function is to lay the case for his client before the Court to the best advantage, and such matters as the method of exposition of the case, or of the errors in the judgment under appeal, or the order in which he shall deal with such errors, are entirely within his discretion. There are advocates who habitually press their principal points of attack in the final stages of their argument. Such a course may be judged by any advocate to be the best suited to a particular case. It would be a disservice to the cause of justice, and it would detract enormously from the pleasure which the infinite variety of appellate arguments affords to judges, if anything which I have said in this judgment were understood and applied so as to limit advocates in these or any similar respects. And I hope I have also made it clear that, in my opinion, consistently with their duty of control and discipline, appellate Courts should do nothing that might have the effect of terminating an advocate's argument, unless they have first satisfied themselves, by a direct question, that he cannot usefully add to what he has already said."
(b) Federal Court‑When will interfere in decision of High Court in criminal cases‑Irregularity of procedure resulting in substantial and grave injustice.
While the Federal Court's interest must always be thought to be attracted towards proved irregularities of procedure, yet a long course of practice in the Privy Council makes it clear that interference with the decision of the Courts below will not necessarily follow upon the ascertainment of every irregularity of procedure.
It is necessary, in order to justify interference by this Court with the decision of the High Court in this case, to establish not only that there has been irregularity of procedure, but also that in consequence of this irregularity substantial and grave injustice has been done.
Sarfraz Ali Khan, (F C R) 1951 p. 78= P L D 1951 F C 41 and Dillet's, case 12 App. Cas. 459 ref.
Mohsin Shah, Senior Advocate, Federal Court (with him Hamid-ud‑Din, Advocate, Federal Court, instructed by Nazir‑ud- Din, Attorney), for Appellant.
A. R. Changez, Advocate‑General of the Punjab, (with him S. A. Mahmud, Advocate, Federal Court, instructed by Ijaz Ali, Attorney), for Respondent.
Dates of hearing : December 22 and 23, 1953 and January 7, 1954.
JUDGMENT
AKRAM, J.--‑This appeal with our leave is from a judgment of the High Court of Judicature at Lahore. Appellant Imran Ullah (also known by several other names) and four others were put upon their trial before the Additional Sessions Judge of Lyallpur, for the murder of two persons, Muhammad Umar Charsi and Tajwar Khan, and for causing injuries to certain other persons at about 8‑30 p.m. on the 6th of June, 1950. The case for the prosecution was that on the night of occurrence, Imran Ullah with several companions came to the house of P. W. 17, Mst. Tajbaro, a woman of ill‑fame, with the object of carrying her away by force ; that on her raising an alarm a number of people were attracted to her house and on their seeking to rescue her were attacked by the appellant and his companions with knives with the result that two men were killed while several others were seriously injured, as stated above. The case fur the defence was that the accused were falsely implicated on account of ill‑will and enmity.
The learned Sessions judge convicted Imran Ullah and sentenced him to death under section 302 P. P. C., for the two murders and to three years' rigorous imprisonment under section 326 P. P. C., for causing hurt to P. W. 18, Sher Bahadur ; of the remaining four accused, he convicted and sentenced two of them to rigorous imprisonment for three years under section 326/149.P. P: C., and acquitted the' other two, namely, Badshah Khan Tambaknowala and Siraj, on giving them the benefit of doubt. The three convicted persons preferred appeals to the High Court of Judicature at Lahore, but their appeals were dismissed and the sentence of death passed upon Imran Ullah was confirmed. Imran Ullah thereupon obtained our leave to prefer the present appeal on the ground that at the hearing of the appeal in the High Court, his counsel Syed Mohsin Shah was not given a fair and full hearing with the consequence that he was not able to present his case before the Court properly and adequately.
Counsel for the appellant stated to us that while the evidence of some of the witnesses still remained to be read and comments and arguments to be made, the Court passed the order dismissing the appeal. This statement of the appellants counsel has not been seriously challenged or controverted before us by the respondent.
Section 423 of the Cr. P. C. is imperative in its terms and, provides amongst other matters that "after perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears‑the Court may if it considers that there is no sufficient ground for interference dismiss the appeal "--------". In the circumstances of the present case I do not think it can be reasonably said that section 423 Cr. P. C. had been sufficiently complied with. The statutory right of appeal confers a right of re‑hearing of the whole dispute unless expressly restricted in scope and the appellate Court is not confined to the reasons which have been given by the Court below as the ground of its decision. The appeal Court has to consider the controversy entirely afresh, both as regards facts and as regards law, and can substitute its own opinion in place of the decision taken by the lower Court. The right of a counsel to being heard adequately, in a trial or in an appeal given by statute, is an indefeasible right which cannot be transgressed by Courts of justice. It is one of the universal rules of natural justice the breach of which renders a judgment inoperative, irrespective of there being or not being a miscarriage of justice. It has been said and perhaps too often that it is necessary "that justice should not only be done but should manifestly and undoubtedly be seem to be done". In Wood v. Wood ((1874) L R 9 Ex. 190.) Kelly C. B. observed :‑
"But they (committee of an Insurance Society) are bound in the exercise of their functions by the rule expressed in the maxim audi alteram pariem, that no man shall be condemned to consequences resulting from alleged misconduct unheard and without haring the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals".
In Dal Singh v. The King‑Emperor (26 C L J 13 at p.23.), it was remarked by Viscount Haldane :‑
"Now it is true that error in procedure may be of a character no grave as to warrant the interference of the Sovereign. Such error may, for example, deprive a man of a constitutional or statutory right to be tried by a jury, or by some particular tribunal. Or it may have been carried to such an extent as to cause the outcome of the proceedings to be contrary to fundamental principles which justice requires to be observed. Even if their Lordships thought the accused guilty, they would not hesitate to recommend the exercise of the prerogative, were such the case".
The following quotation is from "Constitutional Law" by Wade and Phillip, 3rd Edition, p. 276 :‑
" An equally elementary principle of justice is that no party ought to have his case decided without being afforded an opportunity of hearing the case which he is to meet as well as stating his own case. Even God himself did not pass sentence upon Adam before he was called upon to make his defence'. 'Adam' says God, 'Where art thou ' ? Hast thou not eaten of the tree thou shouldst not eat" ? In Cooper v. Wandsworth Board of Works (1863, 14 C. B. (N. S.) 180 ; K. L. 194,), the Court quashed a demolition order justifiable in itself which was made by the Board (adminis trative Board) without giving notice to the owner of the property or affording him an opportunity of being heard".
Such being the legal position I was minded to remit the case to the High Court for a rehearing of the appeal, but as counsel has taken us through the entire evidence and we have carefully listened to the elaborate arguments on the merits by either side, it would now be to no purpose to adopt that course.
Counsel for the appellant urged inter alia that in the F. I. R. no specific act was attributed to the appellant ; that the evidence of P. W. 21 given before the Committing Magistrate should not have been transferred to the sessions record on the bare statement of P. W. 20, footconstable, that he could not trace the where abouts of P. W. 21 ; that C. W. 1, Tehmas Khan and C. W. 2, Muhammad Bashir, having been given up by the Public Prosecutor should not have been examined as Court witnesses at the trial ; that the identification of the appellant by P W. 19, in Karachi jail having taken place nearly six months after the occurrence before a Magistrate not authorised to investigate, the report Exh. C.W. 3/A could not be used for corroboration under section 157 of the Evidence Act ; that as the appellant and the acquitted accused Siraj had each given a knife injury to. Muhammad Umar Charsi (deceased) and according to' the doctor's opinion the injury No. 1, could be fatal, the conviction of the appellant under section 302 P. P. C., could not be sustained in the absence of any evidence to show that the injury No 1 was inflicted by him ; that P. W. 17 and P. W. 18 not having stated that they had seen the appellant stabbing Tajwar deceased, the High Court had misread and mis‑apprehended the evidence in making the following observation in the judgment :‑
"The evidence of P. W. 15, P. W. 16, P. W. 17, P. W. 18 and P. W. 19, who are all residents of the chakla at Lyallpur, shows that the three appellants along with some others had, on the morning of the 6th June, 1950, made an abortive attempt to carry away Mst. Tajbaro (P. W. 17) but had run away when people came to her rescue. About the evening incident which resulted fatally the above witnesses are unanimous in saying that Imran Ullah appellant besides causing an injury to Sher Bahadur (P. W. 18) stabbed both the deceased with the knife that he carried, and that the other two appellant caused injuries to some of the injured prosecution witnesses. Imran Ullah appellant caused fatal injuries to two persons who attempted to prevent him and his companions from carrying out their nefarious design--------‑‑" ;
that the night was dark, the witnesses were terror‑stricken and their evidence, so far as at least some of the accused were concerned, was found to be unreliable ; that in the circumstances the Court should have held that the charge against the appellant had not been satisfactorily established.
On the other hand, the Advocate‑General of the Punjab, appearing for the Crown, pointed out to us that the appellant's name finds mention in the F. I. R. as Badshah and although no specific injuries have been attributed to him and it is stated in general terms‑‑
" Then they (accused) injured Sher Bahadur, Tajbaro and Charsl Muhammad Umar with knives. Tehmas alias Chaka Choor also turned up and tried to disengage, but they gave knife blows to him on his flank and belly. Tajwar fell down on the ground‑‑---" ;
that Court witnesses Nos. 1 and 2 were examined at the instance of the co‑accused Badshah Khan and Siraj respectively ; that even if Exh. C. W. 3/A was to be kept out of view there is ample evidence to establish that the appellant was the person who gave the solitary fatal injury to Tajwar and one of the two stab wounds to Umar Charsi ; that the objection of long delay raised by the appellant with reference to section 157 Evidence Act was made possible by the conduct of the appellant himself in abscond ing and eluding arrest for nearly six months ; that the dimension of injury No. 1 on Muhammad Umar Charsi‑--
"an incised wound 1" x " transverse penetrating into the chest"
and the fatal injury on Tajwari
"an incised wound 1" x " transverse penetrating into the chest"
clearly indicates that the weapon used was one and the same in both the cases, so that the hand which had inflicted the injury on Tajwar was also the hand which stabbed Umar Charsi causing the injury No. 1 ; that the evidence against the appellant regarding the fatal injury to Tajwar was overwhelming and nothing could be legitimately urged in favour of the appellant in that respect ; that even assuming that the conviction of the appellant for the murder of Muhammad Umar Charsi under section 302 could not be sustained and the appellant was liable under some other section of the Penal Code, no real benefit could come to him by altering his conviction and sentence in connection with the death of Muhammad Umar Charsi, if his conviction and sentence for the murder of Tajwar was to be maintained ; that the witnesses had given a candid and consistent story and there is no reason to doubt their testimony.
Without discussing the evidence in its minute details and dealing only with the salient aspects of the case, it appears to me that the objections raised by the appellant's counsel are neither sound nor substantial. There is nothing which can be reasonably urged against the conviction and the sentence of the appellant for the murder of Tai war deceased. In this respect the evidence is ample and overwhelming‑sea P. Ws. 1.5, 16 and 19. and C. Ws. 1 and 2, no real benefit, therefore, can be conferred upon the appellant even if his conviction and sentence for the murder of Muhammad Umar Charsi were to be altered for an offence under section 307 or section 326 of the Penal Code. As pointed out by the Advocate‑General, it seems to be very likely that the injury` No. 1, on Muhammad Umar Charsi was inflicted by the same hand which inflicted the fatal injury on Tajwar deceased. It is a question of fact and in respect to it the trial Court also appears to have taken the same view. On the whole I am of opinion that there is no such ground as can justify our interference in the case. I would accordingly dismiss the appeal.
SHAHABUDDIN, J.--‑I agree that the appeal should be dismissed for the reasons expressed in the judgment of my learned brother Cornelius. J., and I have nothing to add.
CORNELIUS, J.--‑This appeal by special leave has been preferred by one Imran Ullah from convictions under sections 302 and 326 P. P. C , the sentences being death and three years' rigorous imprisonment respectively, which were confirmed on appeal by the High Court. The facts are simple and may be shortly stated. The incident, which involved the death of two persons namely, Tajwar Khan and Muhammad Umar Charsi, occurred at about 8‑30 p. m. on the evening of the 6th June 1950, in the prostitutes' quarter of Lyallpur Town. The opposing parties were composed of Pathans, whose profession was that of pimps and procurers for different prostitutes or group of prostitutes in the Chakla. The accused persons, five in number, were alleged to have joined with three others in attempting to abduct one lust. Tajbaro, a prostitute under the influence of the complainant's group, which included the two deceased persons. The latter, along with their companions, several of whom were injured in the process offered resistance while Mst. Tajbaro fled from the scene. The accused party delivered an assault with knives and brickbats. Tajwar Khan sustained a single incised wound on the left chest, where the instrument penetrated into his body and pierced his heart. Death was instantaneous. Muhammad Umar received two incised wounds, both on the back of the right chest, one of which penetrated into the thorax injuring the right lung and thus causirg death, although not immediately, yet within the short period that was necessary for taking him to the hospital. Four other persons sustained injuries, all of whom were examined as witnesses in the case and deposed in favour of the prosecution. These are Sher Bahadur who sustained two incised wounds, one a flesh wound on the left upper arm and the second a very serious penetrating wound in the abdomen which kept him in hospital for some 25 days. Tahmas Khan received an incised wound muscle deep above the left hip. Jan Muhammad, Amir Zaman and Sharif Khan received between them a scratch, an abrasion and two contusions all simple in nature, and allegedly the result of being struck with brickbats. The matter was reported at a police station in Lyallpur City within 15 minutes of the occurrence, and no time was lost in commencing investigation, but there was considerable delay in arresting three of the accused persons, notably Imranullah, who was captured at Karachi six months after the incident. Identification parades were conducted for testing the capacity of the eye‑witnesses to pick out some of these accused persons, and nothing has been said to suggest that these were not fairly or properly conducted.
Concerning the infliction of the principal injuries, the prosecution examined five witnesses to prove that the fatal injury to Tajwar Khan was caused by Imran Ullah, and that the two knife blows received by Umar Charsi were struck by Imran Ullah and Siraj, but at a different place, after a short chase. Consequently Mst. Tajbaro and Sher Bahadur who was seriously injured, saw and deposed only to the attack on Umar Charsi, but Sharif Khan, Jan Muhammad and Amir Zaman testified concerning both the fatal assaults. These three persons bore injuries to attest their involvement in the incident.
Three other witnesses cited in the calendar were Tahmas Khan who had sustained injury, Ghulam Qadir and Muhammad Bashir. Ghulam Qadir's evidence before the Committing Magistrate was transferred to the sessions record after a police constable had testified that he had been unable to find Ghulam Qadir at the address given on the summons which was in Peshawar. This evidence was excluded from consideration at the hearing in the High Court, on the ground that the mere inability of the police constable to find Ghulam Qadir was not sufficient to establish beyond reasonable doubt that he could not be found. As for Tahmas Khan and Muhammad Bashir, they were given up by the Public Prosecutor on the ground that they bad been won over, but were examined later under the description of "Court witnesses" at the instance of two of the accused persons. This request seemingly lent support to the Public Prosecutor's plea, but their depositions gave the lie to this suggestion. The learned Sessions judge justifiably observed concerning them:
"These two Court witnesses have also supported the prosecution version to the great disappointment of the accused and their statements are exactly in accordance with those of the prosecution witnesses named above."
The record shows that at the trial these witnesses were cross examined by several counsel on behalf of individual accused persons and points of difference between their evidence and their earlier testimony before the Committing Magistrate were brought out. If this cross‑examination was moderate in content, that may reasonably be put down to the apprehension that ‑the witnesses might, if further questioned, cause even greater damage to the case of the parties at whose instance they were being examined.
All the accused persons denied complicity in the case, and no defence evidence was produced, but in the result the learned Sessions judge thought that there was room for reasonable doubt regarding the guilt of Badshab Khan Tambakuwala and Siraj, and accordingly acquitted them. The other three were convicted under section 326149 P. P. C., and Imranullah also under' section 302 P. P. C. The trial Court found that there was an unlawful assembly ; but the causing of death was in excess of the common object of that assembly and 1mranullah, who was found to have caused the deaths of both Tajwar as well as Umar Charsi, was individually liable for murder. Since it has been held that the single and immediately fatal injury to Tajwar was caused by Imran Ullah, any doubt regarding his responsibility for the fatal injury to Umar Charsi is without effect on his liability under section 302 P. P. C.
All the three convicted persons appealed to the High. Court, and the case of Imranullah was argued by Mr. Mohsin Shah who has also appeared for him before us. The learned judges in the High Court dismissed all the appeals, 'and confirmed Imranullah's sentence of death. Imran Ullah's petition for special leave to appeal before this Court was founded on the allegation that "there has been no proper trial of the case" as counsel for Imranullah had not concluded his arguments when the appeal was dismissed ; on the facts it was urged that the evidence of the so‑called "Court…
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