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Petitioner: GHULAM MUHAMMAD VS Respondent: CROWN
1969 S C M R 830
1969 S C M R 830
Present: Abdul Rashid, C. J., M. Shahabuddin and A. R. Cornelius, JJ
GHULAM MUHAMMAD‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 1 of 1952, decided on 11th November 1952.
(On appeal from the judgment and order of the Sind Chief Court, Karachi, dated the 7th February 1951, in Confirmation Case No. 37 and Criminal Appeal No. 190 of 1950).
Jury
---‑Trial‑Chief Court of Sind trying criminal case on its original side‑Empowered to follow procedure applicable to High Courts in matter of jury trial‑Criminal Procedure Code (V of 1898), Ch. XXIII.
Ghulam Mohi‑ud‑Din v. The Crown Criminal Appeal No. 13 of 1951 rel.
Kalandar Ali Khan, Advocate Federal Court instructed by Virasat Hussain Naqvi, Attorney for Appellant.
Inam Ullah, Senior Advocate Federal Court (Asad Ullah Khan, Advocate Federal Court with him) instructed by Iftikhar ud‑Din Ahmad, Attorney for the Crown.
Dates of hearing : 22nd, 23rd and 24th October 1952.
JUDGMENT
ABDUL RASHID, C: J.‑This is an appeal, by special leave, from a decision of a Division Bench (Constantine and Vellani, JJ.) of the Sind Chief Court confirming the sentence of death awarded to the appellant by Muhammad Bachal, J., after a trial with a jury.
The appellant was tried twice. The first trial ended in a divided verdict which was not accepted by the learned Judge. He therefore discharged the jury under section 305 of the Cr. P. C. In the second trial, the jury found the appellant guilty unanimously. He was thereupon sentenced to death.
The appellant Ghulam Muhammad and the deceased Mohammad Aslam belonged to the District of Jhelum in the Punjab. The father of the appellant and the father of the deceased were related to each other and were on very friendly terms. The deceased had settled in Karachi five or six years prior to the murder which took place on the 31st of October 1949. He had served in the Sind Police for a short time and had then started a bakery. He had licences in respect of two bakeries, and as this had caused adverse comment from a large number of refugees he transferred the Husaini Bakery to the appellant Ghulam Muhammad. At the time of the murder both the appellant and the deceased were carrying on bakery business and were living in room No. 7 in Shukla Bhawan Building. Sharifuddin (P. W. 18) was employed in another bakery, but he was also sharing room No. 7 with the deceased. Room No. 7 is on the first floor of Shukla Bhawan Building. Fatima (P. W. 6) lived in a room in the same compound. On the day of the murder she saw the deceased running downstairs into the compound chased by the appellant. Munawar Ali (P. W. 7) also saw the appellant with a knife in his hand chasing the deceased in the compound. At that time the deceased was already bleeding. When they came to the steps of the room which was nearest to the gate of the compound‑ Noor Mahomed saw the deceased falling and the appellant stabbing him. Thereafter the appellant ran away. Ahmed Mian (P. W. 8) and another boy chased the appellant and their cries drew the attention of Khamiso (P. W. 12) who took up the chase. Finally Muhammad Ismail caught the appellant. All those who pursued the deceased are unanimous that they saw the appellant throw away the knife in their presence.
The guilt of the appellant rests principally on the evidence of two eye‑witnesses, namely Munawar Ali and Ahmed Mian. The learned Judges of the Sind Chief Court have not attached any importance to the evidence of Mst. Fatima, but they considered the evidence of Munawar Ali and Ahmed Mian to be perfectly reliable. In addition, there is the dying declaration of the deceased which was recorded by the Sub‑Inspector at 5‑30 p. m. at the hospital.
The first point taken up by the counsel for the appellant was that Bachal, J., was not entitled to follow the procedure laid down for trials before the High Court as he was in all respects a Sessions Judge. It was urged that in these circumstances the learned Judge was not entitled to discharge the jury and to hold a retrial. We have held in the case of Ghulam Mold‑ud‑Dan v. The Crown (Criminal Appeal No. 13 of 1951), decided today that the Chief Court of Sind is empowered to follow the procedure applicable to High Courts in the matter of jury trials. For the reasons given in that judgment we find that there is no force in the contention raised by Mr. Kalandar Ali Khan on behalf of the appellant in this respect.
The next point urged by the counsel for the appellant was that Bachal, J., should not have presided at the second trial. It appears that in the Sind Chief Court the same Judge sits on the original criminal side for long periods of time, and as the second trial was held shortly after the first and as Bachal, J., was the only Judge who was dealing with original criminal matters at the time, he presided at the second trial. There is no legal impediment in the same Judge presiding at the second trial as at the first. This contention is therefore devoid of force.
By the time the second trial was held it was known that the defence of the appellant was that the murder had been committed by one Barkat Ali who was alleged to be living in the same room as the deceased. In order to demolish the defence of the petitioner Muzaffar Ali was examined as a witness at the second trial. He stated that Barkat Ali had left this building before the 10th of August 1949. Mr. Raymond objected, in the trial Court, to the production of Muzaffar Ali as a witness for the prosecution. Prior to the trial, the Assistant Public Prosecutor had given an application for calling Muzaffar Ali to show that Barkat Ali was not occupying the room where the murder was committed on the day of the incident as alleged by the accused. This application had been granted. Mr. Raymond's objection was therefore overruled. It was urged by the counsel for the appellant in this Court that Bachal, J., had erred in allowing the production of Muzaffar Ali as a witness for the prosecution. On an examination of the record, however, we find that Sharifuddin (P. W. 18) had stated in the second trial that Barkat Ali used to stay in this building about two months before the murder, but that he had left this building 1I months before the murder and had taken up residence with the members of his family elsewhere. The fact deposed to by Muzaffar Ali had already been brought on the record by the evidence of Sharifuddin (P. W. 18). The examination of Muzaffar. Ali has not therefore caused any prejudice to the appellant.
It was next urged that the first jury had inspected the scene of occurrence, and that the inspection note prepared in the presence of the first jury should not have been used as evidence in the second trial. We find from the evidence of Munawar Ali that the inspection note made at the first trial was used at the second trial only in the interests of the accused. At the end of the evidence of Munawar Ali (P. W. 7) a note was made by the learned Judge stating that the witness could not see any one falling or sitting on the ground as the inspection note showed. No inference adverse to the appellant was drawn from the inspection note prepared in the presence of the first jury.
We do not find that the second trial was vitiated by any illegality leading to a miscarriage of justice. We, therefore, dismiss this appeal.
Appeal dismissed.