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P L D 1952 Federal Court 71
P L D 1952 Federal Court 71
(Appellate Jurisdiction)
Before Abdul Rashid, C. J., A. S. M. Akram and A. R. Cornelius, JJ
ALI and another‑Appellants
versus
CROWN‑Respondent
Criminal Appeal No. 11 of 1951, decided on 31st March, 1952.
(On appeal from the judgment and order of the High Court of judicature at Lahore, dated 13th December 1950 in Murder Reference No. 107 and Criminal Appeal No. 474 of 1950).
(a) Criminal Procedure Code (V of 1898)------
------ Ss. 375, 428 -Further inquiry or additional evidence at appellant stage‑Should not be ordered to cure infirmities in prosecution case‑Accused's right to rebut such evidence‑Denial of‑Violation of principles of natural justice.
(Per Abdul Rashid. C. J.)‑The provisions of sections 375 and 428 of the Code of Criminal Procedure are meant to be used in such a manner as to secure even‑handed justice to both parties. They should not be utilized to cure all the infirmities in the prosecution case in the appellate Court.
To recall partisan witnesses to make additional statement at the appellate stage is an invitation for perjured evidence. Section 428 of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can therefore be expected to give an unbiased account of the occurrence.
It does not make the slightest difference whether the additional evidence is required by the Court or is produced by parties.
Where the defence wished to adduce evidence in rebuttal but the request was refused :
Held that the High Court had not exercised its discretion properly and that the refusal to grant an opportunity to the defence to rebut the evidence of Nawab, Muhammad Sadiq, and Saidu Naul constituted a violation of the principles of natural justice and seriously prejudiced the case of the appellants.
Re. West Jewell Tin Mining Company (Weston's Case) XL L T R p. 43 ; Sanders v. Sanders, XLV L T R p. 637 rel.
The prejudice caused to the appellants by the procedure adopted at the hearing of the appeal in the High Court can only be remedied by eliminating all the evidence recorded in the appellate Court.
(Per Cornelius, J.)‑Despite the wide terms in which the power is expressed, it has only been exercised where the ad ditional evidence was either not available at the trial, or the party concerned was prevented from producing it either by circumstances beyond its control, or by reason of misunder standing or mistake.
Ajit Kumar Ghose,(I L R 1944 Nag. 809) ; Akhtar Husain, (A I R 1925 Pat. 526) ; Konda Reddi, (A I R 1930 Mad. 854) ; Hanumanthappa (A I R 1937 Mad. 181), (Allaway 17 Cr. App. R. 16, and Berry 18 Cr. App. R. 65); Hullet, (17 Cr. App. R. 8); Robinson (12 Cr. App. R. 226), Hamilton (13 Cr. App. R. 32) ; Warren (14 Cr. App. R. 4); Ward (17 Cr. App. R. 65), ref.
When the record of the case, as prepared at the trial provided ample material for a just and proper decision on points, which the High Court sought to elucidate by means of the additional evidence they recorded, allowing the prosecution a further opportunity during the hearing of the appeal to clear up these doubts was not a judicial exercise of the discretion vested in them. The supplementary evidence had been materially relied upon in their judgment dismissing the appeal and confirming the death sentences. There had thus been violation of a principle of law sufficient to attract the Court's jurisdiction, as laid down in Bibhabati Devi v. Ramendra Narayan Roy, (A I R 1947 P C 19). It is necessary that this additional evidence should be excluded from consideration in determining the guilt or innocence of the appellants, which must rest exclusively on the evidence placed on the record at the trial.
(b) Federal Court‑Criminal appeal‑Whether and when would Federal Court itself scrutinise evidence after part of it had been ruled out of consideration‑Evidence Act (I of 1872), S. 167‑Whether applicable to Federal Court.
(Per Abdul Rashid, C. J.)‑No hard and fast rule can be laid down as to whether, after evidence taken under sections 375 and 428 by the High Court had been ruled out of consideration, the evidence recorded at the Sessions trial should be scrutinised by the Federal Court or whether the case should be remitted to the High Court for a re‑hearing of the appeal preferred by the appellants. If the case is of such a nature that this Court has to examine the entire evidence on the record in order to determine whether the statements of some of the witnesses are inadmissible, or whether they should be eliminated from consideration on other grounds, it would be only right and proper for this Court to deal with the case on the merits. After an examination of the entire record by this Court, it would not be justifiable to cause further delay and expense by remitting case for a rehearing to the High Court. Further, if the case is a simple one and depends upon the testimony of a few eye‑witnesses, further delay and expense should be avoided. If, on the other hand, the consideration of the law points involved in a case has not necessitated a scrutiny of the statements of witnesses, or if the case requires an examination of voluminous oral and documentary evidence, the case should be remitted to the High Court for rehearing.
Bhuboni Sahu v. The King, A I R (36) 1949 P C 257 ; Chainchal Singh v. The King, (1944‑45) L R 72 I A 270, rel.
Pulukuri Kotayya and others v. The King Emperor, (1946 47) L R 74 1 A 65, ref.
The observations made in the judgments of the Privy Council in Dillet's case (1877) 12 App. Cas. 469 or Arnold's case (1914) A C 644 have no applicability to cases where a part of the evidence is found to be inadmissible by this Court or is to be eliminated from consideration on other grounds.
(Per Akram, J.)‑Where grave and substantial injustice is found to have resulted the Court would finally dispose of the appeal itself, if upon legal grounds or legal principles, it is in a position to do so, e.g., when :‑
(a) there is no legal evidence in support of the conviction or the evidence is such that it cannot properly form the basis of a conviction ;
or
(b) the Court acts without jurisdiction or is not validly constituted ;
or
(c) the trial held is vitiated by a violation or disregard of the fundamental principles of criminal justice ;
but if no such ground or principle, as aforesaid, justifying direct interference is found to exist, the Court is not to be guided "by its own doubts of the appellant's innocence or suspicion of his guilt" Arnold v. The King Emperor, (1914 A C 644), and would, as a general rule, send back the appeal for its rehearing after giving such directions as may be necessary,
Adan Haji v. The King 1948 A C 225: Bhuboni Sahu v. The King, A I R 1949 (P C) 257 ; Kwaku Mensa v. The King, A I R 1946 (P C) 20 ; In re Lubeck, 32 Ind . App. 217 ; Dwarka nath and another v. The Emperor A I R 1937 (P C) 124 ;. Basil Reanger Lawrence v. Emperor, A I R 1933 (P C) 218; Mablikilili Dhalamini and others v. The King, A I R 1943 (P C) 124 ; Mahadev v. The King A I R 1936 (P C) 242; Chainchal Singh v Emperor A I R 1946 (P C) 1 ; Ghulam Rasul v. The Crown, P L D 1951 F C 62 ; Ahmad v: The Crown, P L D 1951 F C 107 Aminul Hague v. The Crown, Not yet published ; Pulukuri Kotayya and others v. King Emperor, 74 I A 65 and Thakur Shah v. Emperor, A I R 1943 P C 192 ; ref.
Where the High Court itself, in some measure, was ii: doubt with regard to the question of affirming the conviction or setting it aside upon the evidence as it stood on the record before the additional evidence was taken, the appellants were entitled to the benefit of the doubt.
(Per Cornelius, J.)----‑The question whether the provisions of the Evidence Act of Pakistan are applicable to this Court has not been argued before us, and I am not aware of any decision of this Court on the point. Prima facie, since the Federal Court is constituted by proper authority in Pakistan, it is within the meaning of the expression 'Court' as used in section 167 of the Evidence Act (which is in the terms repro duced above). It follows that it is not open to this Court to adopt the course taken by the Judicial Committee in Kottayas case (74 I A 65). It appears that their Lordships regarded the case as falling under section 167, which did not apply to the Privy Council but did apply to the High Court, and they con sequently directed the High Court to discharge the duty imposed upon "the Court" by that section. In similar circumstances, I am inclined to think that it would be for this Court to carry out this duty, and we would be acting contrary to the section itself if we directed a fresh hearing of the appeal, for this would in my opinion, be within the 'prohibition of "a new trial" contained in the section.
Ramanugrah Singh, (A I R 1946 P C 151), followed.
Kottaya, (74 I A 65) distinguished.
(c) Criminal Procedure Code (V of 1898)-----
--- Ss. 375 and 428 Distinction.
The terms in which the power is given by these two sections vary to some extent. Under section 428, the appellate Court may call for additional evidence "if it thinks additional evidence to be necessary" but must give reasons for its action. Under section 375, no reasons need be given but the additional evidence required must be upon a "point bearing upon the guilt or innocence of the accused".
The limitations of section 428 are obvious. Such an order, stating reasons, would operate to exclude evidence which is not directly relevant to such reasons.
The powers must be exercised judicially, that is to say, so as to preserve in all respects, the essential fairness and even handed justice the proceedings.
M. Sleem. Senior Advocate, Federal Court, (S. Jamil Hussain Rizvi, Advocate, Federal Court with him) assisted by Shameem Hussain Kadri. Attorney, for Appellants.
Abdul Aziz Khan, Advocate‑General, Punjab (C. M. Sharif. Advocate Federal Court, with him) assisted by Ijaz Ali, Attorney, for Respondent.
Dates of hearing ; February 26th, 27th, 28th, 29th, and March 1st; 1952.
JUDGMENT
ABDUL RASHID, C. J,‑This is an appeal, by special leave, from a decision of the High Court of judicature at Lahore, dated the 13th December, 1950, confirming the sen tence of death awarded to the appellants under the provisions of sections 302/34 of the Pakistan Penal Code by the Addi tional Sessions Judge of Lahore.
In order to appreciate the question of law involved in this appeal, it is necessary to state the facts of the case in some detail. The deceased, Amir Ali, was a big zamindar. He used to reside at Kot Amir Ali, which is situated at a distance of about 2 miles from Nankana. Amir Ali was a Lambardar and was responsible to Government for the payment of the land revenue relating to the village of which he was the Lambardar. He had paid the greater part of the land revenue from his own pocket. On the 6th of August, 1949, he left Kot Amir Ali at about 8/30 a.m. for Nankana in order to make an application to the Tehsildar for the recovery of land revenue from the defaulters. Amir Ali had figured as an accused person in a case relating to the murder of Raja in the year 1945. .He was, however, acquitted. Since his acquittal he entertained the fear that the relatives of Raja deceased might wreak vengeance on him. He. therefore, always used to go about in the company of three or four friends or rela tives. On the day of occurrence, when he started for Nankana, he took his tenants Saidu Naul (P. W. 3), Nawab (P. W. 8J, and Ibrahim with him. Muhammad Sadiq (P. W. 2),'a cousin of his, also accompanied him because he owed some land revenue and had to settle accounts with the Patwari. Muhammad Sadiq, according to his own statement, accompanied Amir Ali deceased for purposes of protection also. He owns a gun and has a licence for the same. He, however, did not take this gun to Nankana when he accom panied Amir Ali. The deceased and Saidu Naul were riding on two mares and the others were walking in their company. The party reached Nankana at about 10‑0 a.m. The two mares were tied in the Mandi outside the shop of Dil Muhammad (P. W. 10), and Amir Ali and his companions proceeded to the Tehsil. On his arrival there, Amir Ali got a petition addressed to the Tehsildar drafted by a petition writer. He found that the Tehsildar was not in his Court room at the Tehsil. He, therefore, proceeded with his comp anions to the house of the Tehsildar, which is at a distance of about 1 mile from his Court. After presenting the petition to the Tehsildar in his own house, Amir Ali returned to the Mandi with his companions at about 11 o'clock. The party stayed there till about 3‑30 p.m. when all of them left for their village. On their way back they met Sada Kharal (P. W. 9). He was also riding. Amir Ali and Saidu Naul were 6 killas (about a quarter of a mile) ahead of the others. When they reached a place known as Kot Lehna Das they saw a man near the water‑course who came up to Saidu Naul and began walking by his side. Saidu Naul at this time was a few yards behind Amir Ali. Suddenly this man caught hold of the reins of Saidu Naul's mire which :eared and fell on its back. Saidu Naul was thrown off. The stranger then seized Saidu Naul and shouted for others to come out. Ali and Bashir appellants then emerged from some bushes nearby. They were both carring guns and were riding on mares. These persons surrounded Amir Ali, but he galloped off towards Nankana followed by Ali and Bashir. He was ultimately rounded off at a short distance when Ali shouted to Bashir to shoot. Bashir shot Amir Ali and felled him to the ground. Ali accused dismounted and tied the body of the deceased into a bundle with his turban. An effort was made to carry away the body, but it failed. At this stage two other persons, namely, Najabat and Asghar, accused emerged, riding one mare, from a sugar‑cane field near the bushes where Ali and Bashir had been hiding. Najabat and Asghar were tried with the appellants for the murder of Amir Ali, but they have been acquitted. The two unknown persons, one of whom had taken hold of the reins of Saidu Naul's mare and another who had helped, have not been traced.
The case for the prosecution rests on the testimony of four eye‑witnesses, namely, Sadiq, Saidu Naul, Nawab, and Sada Kharal. Three of these witnesses are alleged to have accompanied the deceased throughout his journey from Kot Amir Ali to Nankana and back to the place where he was shot dead, while Sada Kharal is alleged to have joined the party on their return journey. The basis of the case for the prosecution is that three of these eye‑witnesses never let the accused out of their sight from the time that they started from Kot Amir Ali till the time when he was killed. The fourth witness, namely, Sada Kharal, was with the deceased at the time of the assault.
Chaudhari Muhammad Ashraf, Tehsildar, was examined as a prosecution witness at the trial. He stated that Amir Ali deceased had visited him at his house at 9‑0 or 10‑0 a.m. at Nankana. He had also visited him at 4‑0 or 5‑O p.m. in the afternoon. The second visit was not mentioned by any of the eye‑witnesses. This statement was made by Chaudhari Muhammad Ashraf on the 10th of July, 1950, before the Sessions Judge. Two eye‑witnesses, namely, Muhammad Sadiq and Saidu Naul, had been examined before the Tehsildar made his statement. As the Tehsildar's statement completely falsified the claim of Muhammad Sadiq and Saidu Naul that they had never let the deceased out of their sight on the day in question, it was open to the prosecution to elucidate this point from the testimony of the remaining eye‑witnesses, namely, Nawab and Sada Kharal. This, however, was not done. Muhammad Sadiq and Saidu Naul. who had been examined on the same day as the Tehsildar, were presumably still present in Court when the statement of the Tehsildar was recorded. They could have been asked then and there, on the 10th of July, as to whether they had any explanation to offer regarding the second visit of Amir Ali deceased to the Tehsildar which had not been mentioned by them in their statements. They were not recalled on that day. It is perfectly obvious, therefore that the prosecution did not make use of the opportunity that was available to them of clearing this glaring contradiction between the statements of the eye‑witnesses and the Tehsildar. It was known 4t the trial that the Tehsildar was a Govern ment official of position, that he was a disinterested person, and that his testimony would carry great weight with the Court. It was the duty of the prosecution, therefore, to request the Sessions judge to examine the eye‑witnesses then and there regarding the serious contradiction between the testimony of the Tehsildar and that of the eye‑witnesses. The whole foundation of the case for the Crown had been shattered. The prosecution, after the statement of the Tehsildar, could no longer claim that Muhammad Sadiq, Saidu Naul, and Nawab never let the deceased out of their sight. It was obvious that the absence of the mention of this incident from the statements of the eye‑witnesses would provide a ground for the defence to urge that the eye witnesses were not present on the scene of occurrence, and that the whole evidence had been fabricated at a later stage. This argument would be strengthened by the fact that two of the eye‑witnesses were the servants of the deceased, while the other two were his partisans, being related to him.
After the case had been argued in the High Court at some length by Mr. Sleem, on behalf of the appellants, the following order was recorded by the learned judges :‑
"It is contended by the learned counsel for the appellants that the evidence of Muhammad Sadiq (P. W. 2). Saidu Noul (P. W. 3), and Nawab (P. W. 8), is contradicted by the evidence of Muhammad Ashraf, Tehsildar (P. W. 4) inasmuch as the first three witnesses say that they went with Amir Ali deceased to the house of the Tehsildar only once in the morning at about 10 a.m., and returned from there to the shop of Dil Muhammad (P. W. 10) at about 11‑0 a.m. They remained there till 3‑30 p.m. when they proceeded towards their village and on the way Amir Ali was killed at about 4‑30 p.m. Muhammad Ashraf, Tehsildar, has stated that Amir Ali came to see him again at 4‑0 or 5‑0 p.m. that day. We, therefore, consider it expedient in the interest of justice to examine Muhammad Sadiq (P. W. 8) Saidu Naul (P. W. 3) Nawab (P. W. 8), Dil Muhammad (P. W. 10) and Muhammad Ashraf, Tehsildar (P. W, 4) to elucidate this point. Let these witnesses be summoned for an early date and let the Tehsildar be directed to bring with him the petition presented by Amir Ali on 9th August 1949. Ch. Miran Bakhsh A. S. I. (P. W. 11) may also be called."
The order reproduced above ignores several factors. It was well‑known that all the eye‑witnesses were interested persons. If they were allowed to give additional evidence, after the case for the defence had been argued at length in appeal, it was obvious that they would clear away the discrepancies and contradictions that were being made use of by, the defence in the High Court. No consideration was given to the fact that the contradiction referred to above had come to light before the statements of some of the eye‑witnesses had been recorded in the Sessions Court, and that it was due to the negligence of the prosecuting authorities that this point was not cleared up at the trial. To recall partisan witnesses to make additional statements at the appellate stage is an invitation for perjured evidence. Section 428 of the Criminal Procedure Code should be availed of by an appellate Court only if additional evidence can be given by persons who are entirely unconnected with the parties and can therefore be expected to give an unbiased account of the occurrence. Reference may be made in this connection to the case of Re West Jewell Tin Mining Company (Weston's case), XL L T. R. p. 43. This was a liquidation case in which one Weston being a Director had received 500 fully paid‑up shares. The liquidator had summoned him under the Companies Act to show cause why he should not pay to the liquidator 1,000 , the nominal value of the shares, on the ground that he had been guilty of misfeasance or breach of trust towards the Company. In answer to this Weston made an affidavit stating that he purchased 500 shares from Greene in the ordinary way of business, paying him 1,000, which, he said, was at the time considered their full value ; that they were allotted to him direct by the company as the nominee of Greene, in accordance with the agreement between Greene and the company ; that he had never parted with any of the shares and never made any profit by them. He did not, however, say when he made the purchase of the shares from Greene. An application was made on behalf of Weston that he should be allowed to give an additional statement. Jessel, M. R., refused this request in the following words, and James and Bramwell, L. JJ., agreed with him :‑
"I will say one word more as to the application which was made to us to allow Mr. Weston to give further evidence. The application was refused by the Court on grounds which I think are sufficiently manifest. It was his duty to have given the evidence, if it could have been produced, in the first instance. It would be too dangerous to allow a man's single uncorroborated testimony‑for Mr. Greene, it appears, is dead, and there is no evidence producible from him‑to be admitted as evidence after it had been made manifest what was the turning point of the case ; and without at all imputing to the witness the slightest desire to state anything but the truth in a transaction which occurred so long ago as this, as to which memory alone can hardly be relied upon, we must recollect that he would be biased by his interest to recollect, or believe he recollected, that the transaction took place at a particular hour of the day which would make it legal, and not at an earlier hour which would make it illegal. Under those circumstances I think we should be badly exercising our discretion if we were to allow a witness to give further evidence in such a case."
The case of Sanders v. Sanders XLV L. T. R. p. 637 con tains the following observations:‑
"The appellant's counsel, probably when they saw how the appeal would be decided, asked leave to bring fresh evidence. I think that application must be refused. In the first place it is an application for indulgence. The defen dant did not conduct his case as he might have done, and probably would have done, if be could have foreseen what would happen. But that is no ground for the application. It is extremely dangerous, after trial, to allow fresh evidence to be brought. Nothing seems to be more likely to lead to perjury than allowing such fresh evidence?
The exact point on which the Court requires to be satisfied is known and, if evidence is allowed to be given on the point, there is a great temptation to invent the facts required. Nothing, in my opinion, is more likely to prejudice the interests of truth and justice."
The point that was emphasized in both the cases was that if the evidence is of a partisan character there is a great temptation to the witnesses to invent facts that they are required to depose to. It does not make the slightest difference whether the additional evidence is required by the Court or is produced by the parties. In the present case, partisan witnesses could easily go to the place of occurrence between the 13th and the 24th of November, inspect the whole neighbour hood, and invent an excuse whereby they would be able to explain away the serious discrepancy referred to in the order of the High Court dated the 13th of November, 1950.
On the 24th of November, the evidence of Chaudhari Muhammad Ashraf Tehsildar was recorded first in the High Court, and Muhammad Sadiq, one of the eye‑witnesses, was then examined. The case was thereafter adjourned to the 28th of November for the evidence of Nawab, Dil Muhammad, Sada, and Miran Bakhsh. On the 28th of November, as soon as the proceedings started, the learned judges recorded the following order :‑
"As the point that needed explanation has been clarified by the further examination of Muhammad Sadiq (P. W. 2), we do not wish to take any additional evidence except that of Chaudhari Miran Bakhsh Mr. Sleem, however, is at liberty to cross‑examine the witnesses on the point to explain which they were called."
This order was taken by the counsel for the defence to mean that the additional evidence ' of Muhammad Sadiq had been held to be true evidence by the learned Judges, without hearing him on the point. Mr. Sleem, therefore, requested that he should be given an opportunity to contradict the evidence of Nawab and Muhammad Sadiq that on the day in question…
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