Updated: Tuesday February 08, 2011/AthThulatha Rabi’ Awwal 05, 1432/Mangalavara Magha 19, 1932, at 10:40:46 PM

P L D 1979 Supreme Court 53

 

Present : Anwarul Haq, C. J., Muhammad Akram, Dorab Patel, Muhammad Haleem, G. Safdar Shah, Karam Elahee Chauhan and Nasim Hasan Shah, JJ Criminal Appeal No. 11 of 1978

 

ZULFIKAR ALI BHUTTO-Appellant

 

versus

 

THE STATE-Respondent

 

Criminal Appeal No. 12 of 1978

 

Mian MUHAMMAD ABBAS-Appellant

 

versus

 

THE STATE-Respondent

 

AND

 

Criminal Appeal No. 13 of 1978

 

GHULAM MUSTAFA AND 2 OTHERS-Appellants

 

versus

 

THE STATE-Respondent

 

Criminal Appeals Nos. 11 to 13 of 1978, decided on 6th February 1979.

 

(On appeal from the judgment and order of the Lahore High Court dated 18th March 1978 in Criminal Original No. EO of 1977).

 

Majority view-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.]

 

(a) Criminal trial-

 

-- Duty of Court-Contention regarding case being politically motivated in sense of there being an international conspiracy to remove appellant, a former Prime Minister, from power and to eliminate him both physically and politically- Held: Matters extraneous to record of case and to its judicial determination-Fate of case to depend not on motive of those reopening investigation but on strength or weakness of evidence adduced in support of allegations-Requisite evidence, satisfying legal and judicial standards applicable in criminal trials of kind if available on record to prove guilt of appellant beyond reasonable doubt, duty of Court clear, irrespective of political considerations leading to overthrow of appellant’s government and reopening of case thereafter.-[Duty of Court-Evidence].

 

(b) Criminal trial-

 

--- Prejudice-Contention that several prosecution witnesses having been examined and cross-examined during absence of appellant due to his illness and High Court having imposed on him exemption from appearance in Court, evidence of such witnesses was inadmissible in evidence and caused appellant great prejudice—Held all witnesses having been cross-examined at length by appellant’s counsel, appellant having met his counsel practically, every day in Jail, presumption arises of cross-examination having been made according to appellant’s instructions, or at any rate with his approval, and appellant not prejudiced in his defence.-[Prejudice-Evidence].

 

(c) Oaths Act (X of 1873)-

 

-- S. 13-Solemn affirmation-Contention that a particular prosecution witness’s statement having been recorded on solemn affirmation instead of having been sworn on Bible due to such witness having been a Catholic Christian, such witness be recalled for cross-examination---Held: Witness having declared in open Court to have converted to Islam and such statement having not been questioned in crossexamination and appellant’s counsel having admitted conversion of witness to Islam for a brief period to be able to marry a Muslim lady, prayer for recall of witness not only misconceived but also belated: and, in view of lengthy cross-examination of witness, appellant  not -prejudiced-Even otherwise, held further, no objection could be taker, to witness’s evidence in view of S. 13 of Oaths Act 1813- witness-Prejudice].

 

(d) Judicial Proceeding

 

--- Boycott of----Word ‘boycuo’-Unknown in legal system of Pakistan--failure to summon particular Witnesses because of appellant’s boycott of proceedings---Hardly a ground to be urged in support of application prying for summoning of Witnesses-Appellant even if having a valid grievance against conduct of trial by Court, held, ought not have boycotted proceedings but should have placed on record his written objections pinpointing his reasons for his apprehension of not getting a fair trial-Even otherwise, held further, object of summoning such witnesses effectively achieved due to witnesses having produced desired ammunition vouchers and being extensively crossexamined on behalf of appellant.-[Words and phrases-Witness---Practice and procedure].

 

(e) Criminal trial----

 

--- Separate trials-Complaint case and Challan case-Neither two sets of accused nor different versions nor any additional evidence to be examined by complainant-No necessity, in circumstances, for separate trials of two cases-Procedure adopted in precedent case of ordering complaint case to be tried first before taking up challan case devised only to avoid prejudice to complainant but such course not directed to be followed invariably.-[Separate trials-Prejudice].

 

I W L R 965 (P C) ; Corpus Juris Secundum, Vol. 22-A, S. 718, p. 998 ; Sm. Bibhabati Devi v. Rarnendra ,Varayan Roy and others A I R 1947 P C 19 ; Umrao Singh and others v. State of M. P. A I R 1961 Madh. Pra. 45 ; Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1975 S C 57 ; Keolapati v. Raja Amar Krishan Narain Singh A I R 1939 P C 249 and Mohan Singh v. King-Emperor A I R 1925 All. 413 ref.

 

Malik Muhammad Ishaque v. Messrs Erose Theatre and others P L D 1977 S C 109 ; Emperor v. Nga Hlaing A I R 1928 Rang. 295 ; Gulzaman Khan v. Emperor A I R 1935 Pesh. 73 ; Kashi Nath Panday v. Emperor A I R 1942 Cal. 214 ; Venkata Reddy v. Emperor A I R 1931 Mad. 689; Sh. Aslauddin v. Emperor A I R 1938 Cal. 399 ; Channu and others v. Emperor A I R 1948 Cal. 125 ; Khurshld Ahmad v. Maqbool Ahmad P L D 1964 Kar. 356 and Puhlwan and 4 others v. The State P L D 1975 Kar. 847 distinguished.

 

[Per G. Safdar Shah, J. Muhammad Haaleem, J., agreeing]

 

(f) Evidence Act (I of 1872)-

 

----S. 60--Hearsay evidence, rejection of-Underlying principle of S. 60-To reject all hearsay evidence in proof of any fact susceptible of direct evidence by a witness capable of speaking from his own knowledge-Evidence of a witness stating having been told so and so by though admissible in proof of fact of such statement having been actually made by to witness yet inadmissible in proof of contents of such statement unless himself appeared as witness and affirmed truth of what he told to witness-Evidence of approver M in regard what another told him, hence, in nature of hearsay and inadmissible in evidence in respect of its truth.-[Evidence-Approver].

 

Coleman v. Southwick 9 John 50 Monlr on Law of Evidence, 1974 Edn., p. 692 ; Khurshid Ahmad v. Kabool Ahmad and others P L D 1964 Kar. 356; Santa Singh v. Sate of Punjab P L D 1956 S C (Ind.) 327; Kakar Singh v. Crown A I R 1924 Lah. 733; Smt. Bibbabati Devi v. Ramendra Narayan Roy and others A I R 1947 P C 19 and Subramaniam v. The Public Prosecutor P L D 1958 P C 100 ref.

 

Sm. Bibhabati Devi v. Ramendra Narayan Roy and others A I R 1947 P C 19 and Subramaniam v. The Public Prosecutor P L D 1958 P C 100 distinguished.

 

Majority view-[Per Anwarul ‘ Haq, C. J., Muhammad Akram, Karam

 

Elahee Chauhan and Nasim Hassan Shah, JJ.]-

 

(q) Evidence Act (I of 1872)-

 

-- S. 10-Conspiracy-Agency-Conspirator considered to be agent of his associates in carrying out objects of conspiracy-Anything said, done, or written by him, during continuance of conspiracy in reference to common intention of conspirators-Held, a relevant fact against each one of his associates for purpose of proving conspiracy as well as for showing his being a party to conspiracy-Each one of conspirators an agent of others in carrying out object of conspiracy and in doing anything in furtherance of common design-Penal Code (XLV of 1860), S. 120-A-[Conspiracy-Common Object-Agency-Common Intention]. [H. H. B. Gill and another v. The King A I 81948 P C 123 and Maqbool Hussain v. The State P L D 1960 S C 382 held not applicable].

 

In criminal law a party is not generally responsible for the acts and declarations of others unless they have been expressly directed, or assented to by him “nemo reus est nisi mens sit rea”. Section 10 of the Evidence Act, 1872, however, is based on the concept of agency in cases of conspiracy. Conspiracy connotes a partnership in crime or actionable wrong. A conspirator is considered to be an agent of ~ his associates in carrying out the objects of the conspiracy and anything said, done or written by him, during the continuance of the conspiracy, in reference to the common intention of the conspirators, is a relevant fact against each one of his associates, for the purpose of proving the conspiracy as well as for showing that he was a party to it. Each is an agent of the other in carrying out the object of the conspiracy and in doing anything in furtherance of the common design.

 

H. H. B. Gill and another v. The King A I R 1948 P C 128 and Maqbool Hussain v. The State P L D 1960 S C 382 held not applicable.

 

(h) Evidence Act (I of 1872)-

 

-- S. 10-Application-Section 10 regulates mode of use of evidence at time of its evaluation rather than sequence in which such evidence produced in Court-Facts in issue in cases under S. 10 : Whether agreement existed for alleged purpose and, secondly whether accused a party to same-Evidence in support of either, held, may be given first and need not be given all at once in one stretch. -[Badri Rai and another v. The State of Bihar A I R 1958 S C 953 held not applicable].

 

Section 10 of the Evidence Act rather regulates the mode of the use of the evidence at the time of its evaluation rather than the sequence in which it is produced in Court.

 

The methodology employed in the actual application of section 10 of the Evidence Act is fully demonstrated in these cases to the effect that its actual application follows and does not precede the finding that there is reasonable ground to believe that a conspiracy exists and certain persons are conspirators. It merely speaks of the use of evidence in the case, and the section does not control the sequence in which the evidence should be, let in. It appears to that these are but only two phases in the exercise of the application of section 10 of the Act, and not two distinct and separate stages laying down the order in which evidence is to be led. In the initial phase and as a condition precedent under this section, the Court has got to find from evidence aliunde on the record that there are reasonable grounds to believe that two or more persons have conspired together to commit an offence or an actionable wrong. After having passed this test, the next phase in the exercise consists in the actual application of the operative part of this section whereby anything said, done or written by any one of such persons in reference to their common intention, during the continuance of the conspiracy, is treated as a relevant fact against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of conspiracy as also for the purposes of showing that any such person was a party to it. In fact this section deals with the mode of evaluation and the use of the evidence brought on the record. It does not provide that the proof of existence of the conspiracy must necessarily precede any proof of the acts and declarations of the co-conspirators of the accused for use against them.

 

To sum up, it will be seen that the facts in issue in a case under section 10 of the Evidence Act are, whether there was an agreement for the alleged purpose and whether the accused was a party to it. Evidence in support of either may be given first. It may be that evidence is first allowed to go on the record about anything said, done or written by one of the accused in reference to their common intention during the continuance of the alleged conspiracy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable grounds to believe about the very existence of the conspiracy and the partners in it. This curse in thus provisionally admitting the evidence has a merit in it and is conducive to the expeditious disposal of the trial and suited to the prevailing conditions in this country where the delays in the administration of justice have become proverbial, and more especially because, as in this case, the trial is not by jury. There can be nothing wrong in the course adopted at the trial in recording the evidence at a stretch and not in two separate instalments.

 

Bhagwan Swarup Lal Bishan Lal and others v. The State of Maharashtra A I R 1965 S C 682 ; Niamat Singh and others v. The State I L R 2 All. 250 ; Brlmukand v. Emperor A 1 R 1915 Lah. 16 ; Mirza Akbar v. Emperor A I R 1940 P C 176 ; Principles and Digest of the Law of Evidence by M. Monir, Vol. I, p. 90; Cross on Evidence, 4th Edn., p. 481 and Phipson on Evidence, 11 th Edn., pp. 119-120 reef.

 

Badri Rai and another v. The State of Bihar A I R 1958 S C 953 held not applicable.

 

(i) Evidence Act (I of 1872)-

 

--- S. 10-Words “reasonable ground to believe”-Reflect a state of mind where lurking doubts, if any, get dispelled and an amount of conviction and assurance developed in their place giving rise to a belief based on some reasons although not fully ripened into absolute certainty or proof.-[Words and phrases-.Conspiracy].

 

V -Mould Fuzlul-Quadar Choudhnry v. Crown P L D 1952 F C 19 and Niamat Singh and others v. Stare I L R 2 All. 25 ref.

 

(i) Evidence Act (I of 1872)-

 

-----S. 10-Conspiracy-Evidence-Admissibility-Witness in case of conspiracy may, in reference to common intention of conspirators, give evidence about things said, done, or written by one of conspirators during existence of conspiracy-Approver granted pardon being a competent witness, section 10, held, does not cease to apply to anything said, done, or written by a conspirator during relevant period simply for reason of conspirator giving evidence as approver---Penal Code (XLV of 1860), S. 120-A.-[Evidence - Witness -Approver-Common intention-Conspiracy].

 

On a plain reading of section, 10 of Evidence Act it is clear that things said, done or written by one conspirator in reference to their common intention to be admissible against his co-conspirator, must have taken place when the conspiracy is still in existence or in progress. Hence, a declaration or act of one of the„ conspirators is not admissible in evidence against the other members of the conspiracy, if it was made after termination of the conspiracy. In this connection, there are two necessary requirements to be fulfilled, viz., that it must be (a) in reference to their common intention, and (b) when the conspiracy is still in existence or in progress, before its termination. If these requirements of the section are fulfilled, in a case of conspiracy, a witness may give evidence about the things said, done or written by one of the conspirators in reference to their common intention, during the existence of the conspiracy, so as to be admissible against the other co-conspirators. An approver to whom pardon has been granted is a competent witness. Therefore, section 10, does not cease to apply to anything said, done or written by a conspirator, during the relevant period, simply because that conspirator gives evidence as an approver.

 

Vishindas Lachmandas and others v. Emperor A I R 1944 Sind 1 ; Tribhuvan Nath v. The State of Maharashtra A I R 1973 S C 450 ; Balmokand v. Emperor A I R 1915 Lab. 16 ; Bhabanath and others v. Emperor A I R 1939 All. 567 ; R. v. Gallagher 15 Cox 291 (C C R) and State v. Shankar Sakharant Jadhav and another A I R 1957 Bom. 226 ref.

 

Queen v. Blake (1844) 6 Q B 125 and Mirza Akbar v. King-Emperor A I R 1940 P C 176 distinguished.

 

Minority view-[Per G. Safdar Shah, J., Muhammad HAeem, J., agreeing]--

 

(j) Evidence Act (I of 1872)---

 

S. 10-Express evidence given by approver M not only not establishing existence of conspiracy between him and appellant Z, but only at best an abetment on latter’s part, all evidence brought on record under S. 10 under assumption of existence of criminal conspiracy, held, cannot be looked into.-[Conspiracy -Approver-Abetment].

 

Maqbool Hussain v. The State P L D 1960 S C 382 ; Balmukand v. Emperor A I R 1915 Lab. 16 ; Kunialal Ghose v. Emperor A I R 1935 Cal. 26 ; Vishandos Lachmandas and others v. Emperor A I R 1944 Siad 1 ; H. H. B. Gill and another v. The King A I R 1948 P C 128 ; Badri Rai and another v. State of Bihar A I R 1958 S C 953 ; Bhagwan Swarup v. State of Maharashtra A I R 1965 S C 682 ; Emperor v. Percy Henry Burn 4 I C 268 ; Laijam Singh v. Emperor A I R 1925 All. 405 ; Rajmal Marwadi v. Emperor A I R 1925 Nag. 372 ; Chatru Malik v. Emperor A I R 1928 Lab. 681 ; Shankarshet v. Emperor A I R 1933 Bom. 482 ; Chandrika Prasad v. Emperor A I R 1930 Oudh 321 ; Muhammad v. State A I R 1934 Lab. 695 ; Mohanlal Bhanalal Goela, v. Emperor A I R 1937 Sind 293 and Sardul Singh Caveeshar v. The State of Bombay A I R 1957 S C 747 ref.

 

Khalil Munda and others v. King-Emperor I L R 1901 Cal. 797 distinguished Majority view-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elat ee Chsuhan and Nasim Hasan Shah, JJ.;------

 

(k) Evidence Act (I of 1872)-

 

--S. 10’--Applicability of section-Evidence prima facie showing existence of a conspiracy between appellants as well as approvers to commit murder and father of person intended to be killed murdered in execution of conspiracy-Section 10 applicable on basis of such evidence-Question at such stage not whether conviction could be based on evidence of approvers but merely whether it furnished basis for reasonable ground to believe certain persons having conspired to commit a particular offence-Value to be attached to such pieces of evidence and question of their final admissibility in law-Not relevant for purpose of determining question of application of S. 10Cumulative effect of such evidence on mind creating reasonable ground for belief regarding murder being result of conspiracy involving specified persons, requirements of S. 10 for its application, held, fulfilled-Penal Code (XLV of 186001, S. 302/149.-[Conspiracy--Conviction-Approver].

 

(l) Evidence Act (I of 1872)-

 

S. 30-Confession of co-accused-Can be taken into consideration not only against its maker but also against other accused persons---Confession however does not amount to proof.-[Confession-Proof].

 

(m) Evidence Act (I of 1872)-

 

----S. 30-Word “Confession”-Meaning.----[Words and phrases-Confession.

 

The word “confession” is not defined in the Evidence Act, but ordinarily a confession is construed as an acknowledgment in express words, by an accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. A statement in order to amount to a confession must either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if, true, would negative the offence alleged to be confessed.

 

Dial Singh v. Emperor A I R 1963 Lab. 33 ; Sant Ram v. Emperor A I R 1924 Oudh 188 ; Sheocharan v. Emperor A I R 1926 Nag. 117 ; Raghunath v. Emperor A I R 1926 Nag. 119 ; Abdul Jalil Khan and others v. Emperor A I R 1930 All. 746 ; Shambhu v. Emperor A I R 1932 All. 228 ; Pakala Narayan Swami v. Emperor A I R 1939 P C 47 ; Ram Bharose and others v. Rex A I R 1949 All. 132 anal Zahid Hassan Khan and others v. The State P L D 1964 Dacca 600 ref.

 

(n) Evidence Act (I of 1872)--

 

- S. 30-Confession-Admission by an accused person of his own guilt-Affords some sort of sanction in support of truth of his confession against others as well as himself -Such considerations, however, held, not applicable for use against its maker when statement partly inculpatory and partly exculpatory.-[Confession-Admission].

 

Lakhan v. King-Emperor A I R 1924 All. 511 ; Rama Kariyappa Pieh! and others v. Emperor A I R 1929 Bom. 327 ; Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101 ; Bala Majhi v. The State of Orissa A I R 1951 Orissa 168 ; The State v. Jamalan and others P L D 1959 Lab. 442 and Ghulam Qadir v. The State P L D 1960 S C 251 ref.

 

(o) Evidence Act (I of 1872)-

 

-- S. 30 read with S. 21 and Criminal Procedure Code (V of 1898), S. 342-No special form specified by S. ?0 for confession-Such confession may take form of a document or other statement such as one under S. 342, Criminal Procedure Code, 1898-Section 30 provides an exception to rule regarding admission being only used against its maker under S. 21, Evidence Act, 1872-While construing S. 30, regard, held, must be had to fact that confession sought to be used against co- accused, like any other piece of prosecution evidence, must be proved before prosecution closes its side so as to provide opportunity to accused to rebut same.--[Confession-Evidence].

 

Mahadeo Prasad v. King-Emperor A I R 1923 All. 322 ; In re Marudamuthu Padayachi A I It 1931 Mad. 820 ; Mt. Sumitra v. Emperor A I R 1940 Nag. 287 ; Malla Mahmadoo and others v. State A I R 1952 J & K 49 ; Ghulam Hussain v. The State Bank of Pakistan 1975 P Cr. L J 1116 ; Qazi Parvaiz Iqbal and 2 others v. The State P L D 1976 Kar. 583 ; Dial Singh v. Emperor A I R 1936 Lah. 337 ; P L D 1960 Pesh. 70 and A I R 1930 Bom. 354 ref.

 

(p) Evidence Act (I of 1872;-

 

-- S. 30 read with Criminal Procedure Code (V of 1898), S. 342 Confession-Admissibility-Confessional statements made by co--accused duly proved at trial by Magistrate recording such confessions--Confessional statements also put to non-confessing accused during their examination under S. 342, Criminal Procedure Code, 1898 at close of prosecution case-Such confessional statements fully implicating makers thereof and also affecting other appellants-Statements, held, rightly taken into consideration by High Court in terms of S. 30, Evidence Act, 1872-Plea of confessing accused to have done guilty acts under orders and pressure from their superiors, held further, does not detract from self-inculpatory nature of their statements due to their having substantially admitted all incriminating circumstances of offences charged with at trial.-[Confession-Admission].

 

Bhuboni Sahu v. The King P L D 1949 P C 90 ; Kashmira Sing v. The State of Madhya Pradesh A I R 1952 F C 159 ; L. S. Raju v. The State of Mysore A I R 1953 Bom. 297 ; Rafiq Ahmed v. The State P L D 1958 S C (Pak.) 317 ; Maqhool Hussain v. The State P L D 1960 S C 382 ; Ibrahim and another v. The State P L D 1963 Kar. 739 ; Shera and 3 others v. The State P L D 1972 Lah. 563 and Abdul Sattar v. The State P L D 1976 S C 404 ref..

 

(q) Evidence Act (I of 1872)-

 

S. 30-Confession-Admissibility-Confessional statement trying to exculpate himself by laying blame on approvers and incidentally implicating one of appellants in crime-Held, cannot be treated as a confession for purpose of S. 30.-[Confession].

 

(r) Criminal Procedure Code (V of 1898)-

 

-- S. 190 (3) [as. amended by Law Reforms Ordinance, 1972] read with Ss. 164 & 337(2)-Confession, recording of-Magistrate not authorised to take evidence in Sessions case due to amended provision of S. 190(3), statement of accused recorded by such Magistrate under S. 164, held, could not be regarded as evidence in case and could at best be previous statement amenable to cross-examination by defence.-[Confession--Evidence].

 

(s) Criminal Procedure Code (V of 1898)-

 

-- Ss. 190(3) & 337 (2)-Approver, examination of-Approver now to be examined as a witness only at one stage, vie., at trial-Obligation resting on approver, as a necessary condition of grant of pardon, hence, merely to make a true ‘and full disclosure of events within his knowledge when giving evidence at trial.-[Approver-Witness].

 

(t) Criminal Procedure Code (V of 1898)-

 

-- S. 164 (L-A)-Magistrate under no obligation to require presence of accused while recording statement under S. 164-Subsection (1-A) only an enabling provision--Magistrate not choosing to require presence of accused, held, commits no illegality in recording confessional statement inasmuch as such statement cannot be used as substantive evidence against accused not present at time of recording.-[Confession--Evidence].

 

Balmukand v. Emperor A I R 1915 Lah. 16 ; Bhola Math and others v. Emperor A I R 1939 All. 567 and Emperor v. Shahdinu Dhaniparto A I R 1940 Sind 114 ref.

 

Mahla v. Emperor A I R 1930 Lab. 95 and In re: Arusami Goundan A I R 1959 Mad. 274 distinguished.               

 

(u) Criminal Procedure Code (V of 1898)-

 

Ss. 164 & 337-Approver-Penalising of-Commitment proceedings having been abolished, only failure to give evidence before Sessions Court will render approver liable to penal action-Any short. comings or distortions in a statement recorded by Magistrate under S. 164 immediately after grant of pardon, held, cannot render approver liable to penal action or in any manner deprive him of status of approver.-[Approver].

 

Emperor v. Shahdino Dhaniparto A I R 1940 Sind 114 ref.

 

(v) Criminal Procedure Code (V of 1898)-

 

-- S. 339-Approver-Forfeiture of pardon--Approver forfeits pardon only when action initiated by Public Prosecutor under S. 339Allegation by prosecution or def:nce in respect of approver having not made a true and full disclosure of all circumstances of case or of trial Court having held approver to have given false evidence not enough-Question of weight to be attached to approver’s statement separate question altogether and not to be confused with its admissibility.-[Approver].

 

(w) Evidence Act (I of 1872)-

 

S. 10 read with Criminal Procedure Code (V of 1898), S. 337Compliance or otherwise with provisions of S. 337-Irrelevant for determination of applicability of S. 10-Approver, held, does not cease to be co-conspirator even if he does not make a true and full disclosure of circumstances of case as required by S. 337.-[Approver].

 

Minority view-[fPer Dorab Patel, J.]

 

(1w) Evidence Act (I of 1872)-

 

-- S. 10 read with Criminal Procedure Code (V of 1893), S. 337Approver admitting having not made full disclosure of facts in his statement under S. 337, Criminal Procedure Code, 1898-Not worthy of reliance.-[Approver].

 

Majority view - [Per Anwarul Haq, C. J., Mabammad Akram, Karam Elahee Chaulian and Nasim Haman Shah, JJ.]-

 

(x) Criminal Procedure Code (V of 1898)-

 

--S. 342-Examination of accused-Putting circumstances appearing in  evidence against him-Section 342 although mandatory yet its compliance dependent upon conduct of accused himself Accused frustrating provisions of S. 342 by boycotting proceedings and refusing to answer any questions put to him in relation to his defence-Sixty-seven questions put to accused whereby practically all incriminating pieces of evidence except two mentioned and answers furnished to such 67 questions establishing beyond doubt that even if such two questions were put their answers could not have been different from . those given to 67 questions, omission to put to accused such two questions, held, did not in circumstances cause any prejudice to accused in his defence-Even otherwise, held further, validity of trial not affected unless prejudice shown to have been caused as a matter of fact----Criminal Procedure Code (V of 1898), S. 537.-[Examination of accused -Prejudice].

 

S. M. K. AM v. Crown P L D 1953 F C 189; Abdus Salam Molla v. Crown P L D 1955 F C 129 ; Munawar Ahmad v. State P L D 1956 S C (Pak.) 300 ; The State v. Tasiruddin P L D 1962 Dacca 46 ; Addl. Advocate-General, West Pakistan v. Abdul Majid P L D 1965 Quatta. 20 ; M. Akbar Khan Bugti v. State P L D 1967 Kar. 186 ; Imam Ali v. State 1975 P Cr. L J 489 ; Gulzar Ahmad v. State 1975 P Cr. L J 1207 ; Rameshan v. Emperor A I R 1936 Nag. 147 ; Dawarka Singh v. Emperor A I R 1947 Pat. 107 ; Mohyuddin v. Emperor A I R 1925 Pat. 414; State v. Zia-ur-Rehman P L D 1973 S C 49 ; Sher Jang v. Emperor A I R 1931 Lab. 178 ; Aft Shan v. Crown P L D 1953 Lab. 14 Abdul Wahab v. Crown P L D 1955 F C 88 ; Ibrahim Bhak v. Crown P L D 1955 F C 113 ; Lalan v. Crown P L D 1955 F C 132 ; M. Yagub v. Crown P L D 1956 F C 143 ; Bashir Ahmed v. State P L D 1960 Lab. 687 Rama Shankar v. State of Bengal A I R 1962 S C 1239 ; Aishah Khatun v. State 1968 P Cr. L J 53 ; M. Sunafar Ali v. Slate 1969 S C M R 461 ; Saleh Muhammad v. State 1971 S C M R 260 ; Ajit Kumar v. State of Bihar A I R 1972 S C 2058 ; Allah Dad v. State P L D 1978 S C 1, Moseh Chaudhary v. West Bengal State A I R 1956 S C 536 and Bimbhadur Prahdan v. State of Orissa P L D 1957 S C (Ind.) 68 ref.

 

(y) Criminal Procedure Code (V of 1898)-

 

--- S. 537-Irregularity-Cure of-Court to look to substance and not to technicalities in determining whether an omission, error, or irregular conduct of trial vitiated trial in any manner-Accused fully aware of entire evidence led against him having had fair trial and not prejudiced in defence and refusing to answer questions under a declared stance deliberately adopted-Failure to put to him some pieces of evidence, error, ommission, or irregularity if any stands cured-Distinction between illegality and irregularity-Only one of degree rather than of kind-Nothing, held, turns on such distinction for purposes of application of curative provision of S. 537.-[Words and phrases].

 

Subramania Iyer’s case 28 I A 257; Abdul Rehman v. Emperor 54 I A 96; Pulukuri Kotayya v. Enaperor A I R 1947 P C 67; Abdul Wahab v. Crown P L D 1955 F C 88 ; Ibrahim Bhak v. Crown P L D 1955 F C 113; Falz Ahmad v. State P L D 1960 S C 8; W. Slaney v. State of Madhya Pradesh A I R 1956 11.6; Gurbachan Singh v. State of Punjab A I R 1957 S C 623; Rahmat v. State14 S C 1968 P Cr. L 135; Wahid Bakhsh v. State 1974 S C M R 219 and Allah Dad v. State P L D 1978 S C i ref.

 

(z) Criminal Procedure Code (V of 1898)----

 

--- Ss. 540-A & 205(1) read with S. 353-Exemption of personal attendance of accused-General rule requiring all evidence to be taken in presence of accused-Ceases to be applicable when Magistrate dispenses with personal attendance of accused and permits him to appear by his pleader under S. 205(1) or when under given circumstances under S. 540-A a Judge or Magistrate dispenses with presence of accused in case of his being represented by a pleader, or when an accused absconds-Power to dispense with personal attendance of accused also implicit in, and spelt out of, closing line of S. 353 itself.[Exemption from personal attendance of accused].

 

Basil Ranger Lawrence v. Emperor A I R 1933 P C 218; Sultan Singh Jain v. The State A I R 1951 All. 864 and State v. Victor Henry and 2 others P L D 1973 Kar. 273 ref.

 

(al) Criminal Procedure Code (V of 1898)-

 

S. 540-A-Scope and application-Section 540-A enacted not merely for benefit of accused incapable of remaining before Court but also for benefit of other accused whose trial likely to be delayed unnecessarily for no fault of their own-Section cannot be allowed to be used as a handle in hands of accused incapable of remaining before Court so as to prolong proceedings-Judge or Magistrate, held, may on fulfilment of conditions stated in section, and after satisfying himself as to its propriety, dispense with personal attendance of accused and proceed in his absence-Power and discretion vesting in Court, held further, not contingent upon an application being made by accused.[Exemption from personal attendance of accused].

 

Sultan Singh Jain v. The State A I R 1951 All. 864 ; Dewul Krishan v. The State A I R 19 4 Pepsu 36 ; Anand Martand and another v. Anant Paudurang A I R 1956 Madh. Bha. 13 and Emperor v. C. W. King 14 Bom. L R 236 ref.

 

Minority View-[Per Dorab Patel, J.]

 

(lal) Criminal Procedure Code (V of 1898)-

 

-- S. 540-A-Illness a calamity beyond control of accused-Merely because illness may render an accused “incapable of remaining before Court”-Does not however mean that Court should exercise its discretion against him and proceed with trial in his absence-Discretion in such respect to be exercised judicially-Prosecution having failed to prove appellant Z’s guilt no prejudice, held, caused by fact of Court having decided to proceed with case in his absence.-[Prejudice]

 

Majority View - [Per Anwarul Haq, C. J. Muhammad Akram. Karam Eiahee Chauhan and Nasim Hassan Shah, JJ.]

 

(b1) Criminal Procedure Code (V of 1898)-

 

-- S. 540-A-Words “incapable of remaining before the Court---Mean not capable of appearing in, or remaining before, Court at hearing to discharge his functions and duties-Accused infirm, too weak, and unfit for reasons of his bad health and illness to appear and remain in Court, held, may be said to be “incapable” of appearing before or remaining in Court at hearing within meaning of S. 540-A.[Words and phrases].

 

Emperor v. Radha Raman Mitra A I R 1930 All. 817; Kali Das Banerjee and another v. The State A I R 1954 Cal. 576; Trilochan Misra v. State A I R 1953 Orissa 81; Chiman Lai and others v. Parashar Sing A I R 1957 Nag. 101; Webster’s New International Dictionary and Funk & Wagnalls’ New Standard Dictionary ref.,

 

(cl) Criminal Procedure Code (V of 1898)-

 

-- S, 540-A read with S. 537-Exemption from personal appearance---Failure to satisfy and record reasons-Medical certificates and applications moved by appellant establishing fact of appellant having fallen ill and unable to appear in Court because of his prolonged illness during relevant period-Appellant, in circumstances, incapable of personally attending and remaining in Court at hearing-Large Bench of five Judges specially constituted for disposal of case on original criminal side of High Court and prosecution evidence recorded almost from day to day (as usual in all murder trials) and importance attached to case and circumstances prevailing in country demanding its being disposed of on merits without inordinate delay, trial Court’s decision to dispense with formal attendance of accused appellant at bearing in Court and to proceed with trial in presence of his counsel, held, fully justified and in face of patent facts obvious on very face of record it could not be contended that trial Bench failed to satisfy itself regarding appellant being incapable of remaining before Court-Section 540-A, held further, though envisages strict compliance with mode of exercise of jurisdiction yet vitiation of trial due to any error, omission, or failure to strictly comply with such prescribed mode not necessarily spelt out and failure to record reasons for satisfaction relating only to form of order and being only procedural any such omission or failure by itself not sufficient to adversely affect substance and merits of order.-[Exemption from personal attendance of accused].

 

Mirityunjoy Chatterji and others v. The State A I 1,t 1955 Cal. 439; Pulukurl Motayya v. King-Emperor A I R 1947 P C 67; Mohammad Ishaque v. Nur Mahal Begum and others P L D 1961 S C 426; Shahzeda and others v. Malik Shams-ud-Din and others P L D 1977 S C 237; Deputy Legal Remembrancer v. Banu Singh and others (1907) 5 Cr. L J 142; Emperor v. Shama Charan and others 15 I C 1004 ; Bawa Faqlr Singh v. Emperor P I R 1938 P C 266; Rafiq Ahmad v. The State P L D 1958 S C (Pak.) 317 and Pakhar Das Ganga Ram v. Emperor A I R 1938 Lab. 216 ref.

 

(dl) Criminal Procedure Code (V of 1898)    

 

-- Ss. 540-A & 537 read with S. 353-Irregularity, cure of-Names and particulars of witnesses to be produced on a certain day supplied by prosecution to defence counsel in advance-Counsel of appellant also receiving instructions from appellant daily add counsel for such purpose allowed to see appellant in Jail every day-Appellant all along represented in Court by a team of lawyers and such lawyers allowed full opportunity to cross-examine prosecution witnesses and witnesses in fact subjected to lengthy and searching cross-examination during appellant’s absence-Appellant’s counsel not appearing to have experienced any difficulty or being handicapped in conducting cross-examination in appellant’s absence and none such difficulty ever brought to Court’s notice at any time -Nor any application ever made for recall of any witness for cross-examination due to appellant having not been satisfied with cross-examination previously conducted-No explanation as to why precise objection taken before Supreme Court not promptly raised before trial Court immediately after appellant’s appearance in Court after recovering from his illness-Proceedings of High Court, held, on different dates in absence of appellant, in circumstances, held, fully covered by provisions of S. 540-A and no prejudice having been caused to appellant omission of High Court to record reasons as required by S. 540-A being merely technical, omission, held further, not touching substance. of matter, and fully curable under S. 537.-[Prejudice].

 

Thakar Singh and others v. Emperor A I R 1927 Lab. 781; Bigun Singh v. King-Emperor A I R 1928 Pat. 143; Sukhanraj v. State A I R 1967 Raj. 267; Bishnath and others v. Emperor A I R 1935 Oudh 488 and Emperor v. Sukh Dev and others A I R 1929 Lah. 705 distinguished.

 

(el) Criminal Procedure Code (V of 1898)-

 

---- S. 540-A-Exemption from attendance-Persistent unruly behaviour of appellant accused due to disturbed state of mind-Held, justifiably found by High Court trying case to render appellant incapable of remaining before Court and appellant’s presence for rest of day rightly dispensed with-Word “incapable” as used in S. 540-A, held, refers to physical, mental or moral state of mind of accused which makes him unable or unfit to remain in Court and perform his obligations and duties-Court observations-Public trial means orderly trial and not a disorderly trial-Accused, though possessed of right to be present at his trial be at same tine under corresponding duty to help keep decorum and dignity of Court by his good behaviour.-[Exemption from attendance of accused-Words and phrases].

 

In re : Robert Edward Wynyard Jones, (1972) 56 Cr. App. Rep. 413 and State v. Ananta Singh and others 1972 Cr. L J 1327 ref.

 

(f1) Criminal Procedure Code (V of 1898)-

 

S. 162-History of legislation in relation to S. 162.

 

(gl) Criminal Procedure Code (V of 1898)-

 

-- S. 265-C r.-ad with Ss. 161, 162, 164 & 172-Supply of copies of statements of witnesses to accused-Statement made to Police by a person during investigation-Police Officer to record such statement separately in terms of S. 16L. (3)-Police Officer not separately recording such statement but incorporating it in case diary, such statement to be construed as a statement under S. 161 provided same in substance and essence a statement of witness and not merely a statement of circumstances ascertained through investigation-Real character of statement thus determined by its nature and not by lable given to it-Valuable right of accused under S. 265-C-Cannot be taken away or evaded by allowing Investigating Officer of misusing his authority by incorporating in case diary statements recorded by him during investigation which in essence fall within purview of S. 161-Prosecution counsel and trial Court bound in duty to supply such copies to accused-Prosecution’s failure to supply such copies to accused does not, however, necessarily imply exclusion of evidence of such witness.-[Investigation-Police Diaries].

 

Faiz Ahmad v. State P L D 1960 S C 8 ; Muhammad Ashraf v. State P L D 1958 Lab. 694 ; Hazara Singh’s case A I R 1928 Lab. 257 ; Pulukurt Kotayya v. King-Emperor 74 I A 6 5 ; Queen v. Mannu I L R 19 All. 390 ; Bikao Khan v. The Queen-Empress I L R 16 Cal. 610 ; Sheru Sha and others v. The Queen-Empress I L R 20 Cal. 643 and Dadan Gazi v. Emperor I L R 33 Cal. 1023 ref.

 

Per Dorab Patel, J. agreeing

 

(lgl) Criminal Procedure Code (V of 1898)-

 

----S. 265-C read with Ss. 161, 162, 164 & 172-Acoused cannot be deprived of his right to a copy of statements of prosecution witnesses made under S. 161 merely for reason of such statement having been reduced into writing in a police diary instead of being recorded separately-Statement in police diary only a statement of circumstances ascertained through investigation within meaning of S. 172-Accused not entitled to a copy of such statement-Statements though incorporated in case diary, yet in substance a statement under S. 161-Accused, held, entitled to a copy of such statement.-[ Investigation-Police Diaries].

 

Majority view [Per Anwarnl Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hassan Shah, J R]

 

(hl) Criminal Procedure Code (V of 1898)-

 

-- S. 265-C-Procedure to be adopted by Court in case of non-supply of copies of statements of witnesses to accused.-[Practice and procedure].

 

(il) Criminal Procedure Code (V of 1898)-

 

-- S. 161-Failure to supply to accused copies of statements of witnesses-Despite allegations of contradictions, omissions and improvements in statement-of witness, witness subjected to thorough cross-examination on all aspects of matter but no prejudice appearing to have been caused to accused in his defence-Principles to be observed in considering effect of alleged omissions and contradictions.-[Prejudice].

 

Ponnuswami v. Emperor A I R 1933 Mad. 372 ; Queen-Empress v. Naziruddin I L R 16 All. 207 : Deolal Mohtan v. Emperor A I R 1933 Pat. 440 ; Hazara Singh v. Emperor A I P. 1928 Lab. 257 ; Ram Bali v. St:zte A I R 1962 All 289 ; Madhabananda v. Rabindranath A I R 1954 Orissa 31 ; Abdul Hashem v. The State 1969 P Cr. L J 491 ; Ekabbar Ali v. The State 1971 P Cr. L J 275 ; Monir on Law of Evidence, p. 1513 ; Balmukand v. Emperor A I R 1915 Lab. 16 ; Badri Chaudhry v. King-Emperor A I R 1926 Pat. 20 ; In re : Gurura Vannan A I R 1944 Mad. 385; Abu[ Monsur Ahmad v. The State P L D 1961 Dacca 753 an3 Tahsildar Singh and another v. State of U. P. A I R 1959 S C 1012 ref.

 

(jl) Evidence Act (I of 1872)-

 

---S. 35-Public documents, entries in-Admissibility in evidence-Section 35 imports idea of entry being of a permanent nature and person making entry having authority to make same-Evidence of driver and incharge of jeep keeping Log-book in his custody showing all entries not having been uniformly made by a public servant charged with duty of making same-Entries not shown made by a public servant in discharge of his official duties nor presumption regarding regularity of judicial and official acts possibly invokable, individual entries sought to be relied upon by defence, held, had to be proved, unless such entries being not covered by general provision contained in S. 35 and could not be referred to in absence of their being proved---Evidence Act (I of 1872), S. 114 illus. (e).-.[Document--Presumption].

 

Tamizuddin Sarkar v. Taju and others A I R 1919 Cal. 721 ; Mian Ghulam Rasul Khan v. The Secretary of State for India A I R 1925 P C 170 ; The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar P L D 1966 S C 725 ; Muhammad Jafar and others v. Emperor A I R 1919 Oudh. 75 ; Thakar Singh v. Ghanaya Singh A I R 1926 Lab.. 452 ; Mahtab Din v. Kasar Singh and others A I R 1928 Lab. 640 Ghu[arn Muhammad Khan and others v. Samundar Khan and others A I R 1936 Lab. 37 ; Biseswar Misfia v. The King A I R 1949 Orissa 22 ; Samar Dasadh v Juggul Kishore Singh I L R 23 Cal. 367 ; Messrs Bengal Friends & Co. Dacca v. Messrs Gour Benode Saha & Co. Calcutta P L D 1969 S C 477 ; Sheo B.rlak and another v. Gaya Prasad and others A I R 1922 All. 510 ; Sanatan Senapati v. Emperor A I R 1945 Pat. 489 and State Government, Madhya Pradesh v. Kamruddin Imamoddin A I R 1956 Nag. 74 ref.

 

(kl) Criminal Procedure Code (V of 1898)-

 

-- S. 265-F read with Evidence Act (I of 1872), S. 114, Illus. (g)Prosecution not bound to call all witnesses cited in challan or calendar of witnesses irrespective of considerations of number and reliability---Nor prosecution obliged to call any witness not so cited but considered by accused to be necessary-Prosecution, however, bound to call all witnesses essential to unfolding of narrative forming basis of prosecution, irrespective of whether their testimony is for or against prosecution case-Prosecution also not bound to lead evidence to prove incidental matters not concerned with essential fundamentals of its case---Non-production of certain witnesses cannot in every case give rise to adverse inference-Adverse inference to be drawn only when material witnesses shown withheld for some oblique motive or for considerations not supported on record-Prosecution, however, to be prepared to make available for purpose of examination by defence such of given up witnesses as accused may specify--Witnesses in such case to be examined as defence witnesses and not merely tendered for cross-examination without being examined in chief.[Witness-Presumption].

 

Messrs Bengal Friends & Co., Dacca v. Messrs Gour Benode Saha dl; Co., Calcutta P L D 1969 S C 477 ; Stephen Seneviratne v. The King A I R 1936 P C 289 ; Adel Muhammad El Dabbah v. Attorney-General of Palestine A I R 1945 P C 42 ; Malik Khan v. Emperor A I R 1946 P C 16 ; Nazar Hussain and others v. The Crown P L D 1951 Lab. 222 ; Khalrdi Khan and others v. The Crown P L D 1953 F C 223 ; Rafique v. The Crown P L D 1955 F C 70 ; Ghulam Rasul v. The State? L D 1960 Lab. 48 ; Nazir Jat and others v. The State P L D .1961 Lab. 585 ; Shaukat Ali v. The State 1976 P Cr. L J 214 ; Mahant Narain Das v. The Crown I L R 3 Lab. 144 ; Abdul Latif v. Emperor A I R 1941 Cal. 533 ; Emperor v. Kasamalli Mirzalli A I R 1942 Born. 71 ; Allah Yar v. Crown P L D 1952 F C 148 ; Kesar Singh and another v. The State A I R 1954 Pb. 286 ; Habib Muhammad v. State of Hyderabad A I R 1954 S C 51 ; Bakhshish Singh v. State of Punjab P L D 1958 S C (Ind.) 163 ; The State v. Mushtaq Ahmad P L D 1973 S C 418 ; Nur Begum v. Muhammad Hussain and another 1974 S C M R 215 ; Monir’s Law of Evidence; p. 1095 and Sadeppa Gireppa Mutgi and others v. Emperor A I R 1942 Born. 37 ref.

 

(l1) Criminal Procedure Code (V of 1898)-

 

-- Ss. 352 & 353-Chambers, hearing in--Court open only for purpose of “inquiring into or trying any offence” and not for any collateral purpose, or while dealing with something outside cause itself---Transfer applications-Not germane to proper trial as such-Trial Bench in circumstances, held, not debarred from hearing transfer application in limine in chambers--Appellant all along acting on mistaken notion that he was to be tried by public and not by High Court-Transfer application moved by appellant running into 53 typed pages containing scurrilous allegations almost entirely against Acting Chief Justice heading trial Bench, intention of accused appellant in repeating petitions based on allegations of bias appearing only to give publicity to baseless allegations of a scandalous character, and appellant starting a political speech in Court-Hearing of arguments in Chambers on transfer applications in presence of appellant and his two counsel, in circumstances, held, not open to any objection---Word “chambers”- Meaning.-Words and phrases].

 

Concise Law Dictionary by P. C. Osborn, (Fifth Edition) ; Burier’s Law Dictionary, Motleys Law Dictionary (Sixth Edition) ; Wharton’s Law Lexicon (Fourth Edition) ; Black’s Law Dictionary, Oxford English Dictionary ; Cora 1 villain McPherson v. Cora Lillian McPherson, A I R 1936 P C 246; Alliance Perpetual Building Society v. Belrum Investment Ltd. and others (1957) 1 W L R 720 and Scott v. Scott 1913 A C 417 ref.

 

(ml) Criminal Procedure Code (V of 1898)-

 

Ss. 352 & 353-Proceedings in camera-Rule regarding holding open trials-Not rigid and inflexible nor to be pressed to its breaking point in defeating very ends of justice-Presiding Judge or Magistrate empowered to forbid access of public generally or any particular person’s remaining in Court at any stage of inquiry or trial for sufficient reasons in interests of administration of justice-Number of applications filed by appellant from time to time making scandalous and scurrilous allegations mostly against Acting Chief Justice heading trial Bench-Blasphemous allegations attributing bias and motive made in face of a superior Court Judge constituting one of worst forms of contempt and repeated with impunity to defame Judge and Court with scant regard for dignity of law and its enforcing agency Accused adopting an openly hostile attitude in Court and becoming defiant towards end thereby making it arduous for Court to conduct trial-Accused wishing publicity without caring for his own defence---Court, in circumstances, having a genuine and reasonable apprehension of appellant being out to further indulge in scurrilous and scandalous allegations against it and wishing publicity for same -Such conduct of accused likely to result in undermining dignity of High Court and shaking people’s confidence in it-High Court, circumstances, held, left with no alternative but to hold further proceedings to camera-Apprehension of Court further strengthened when a few supporters of accused found shouting and yelling in corridor outside Chief Justice’s Chamber.-[Proceedings in camera-Practice and procedure].

 

In re: .William Oliver (1947) 333 U S 257; Corpus Juris Secundum,Yol. 23. pp. 849-853, S. 963(1); Scott and another v. Scott 1913 A C 417 (Reprint), King v. Governor of .Lewes Prison (1917) 2 K ,B D 254 ; Cora Lillian McPherson v. Cora Lillian McPherson A I R 1936 P C 246 ; Naresh Shridhar Mirajkar and others v. State of Maharashtra and others A I R 1967 S C 1 ; W. E. Gardner v. 17. Kha A I R 1936 Rang. 471 ; In re : M. R. Venkataraman A I R 1950 Mad. 441 ; Mst. Shirin Nazir v. Badruddin Karamall Nazir and another P L D 1963- Kar. 440 ; Mairaj Muhammad Khan v. The State P L D 1978 Kar. 308 ; Abdul 1<ashid Chaudhary and others v. State P L D 1966 Lah. 562 ; West Punjab v. Khan Iftikhar Hussain Khan of Mamdot P L D 1949 Lah. 572 and Halsbury’s taws of England, 4th Edn., Vol. Il, pare. 280 ref.

 

(nl) Criminal Procedure Code (v of 1898)—

 

S. 342 read with S. 537---Examination of accused----Irregularity, curing of-Evidence of none of witnesses examined in camera having any material effect on case for or against objecting accused-

 

--Accused deciding boycotting proceedings and in substance not answering questions put to him in his examination as accused-

 

-- Accused deliberately failing to avail of opportunity to personally explain circumstances appearing against him in prosecution evidence Entire prosecution evidence recorded in open Court and most of his examination as accused also thus conducted--Alleged irregularity, if any in holding part of trial in camera, held, occasioned no failure of justice nor prejudiced contesting appellant in his trial.--[Examination of accused-Proceedings in cameral.

 

(ol) Criminal Procedure Code (V of 1998)-_,-.

 

_ S. 337 read with Penal Code (XLV of 1860),. S. 2U1-Word “accomplice”---Not defined in Evidence Act, 1872, hence to be construed in its ordinary dictionary meaning Section 337 ‘clearly  indicates accomplice to be a conscious participator in crime regarding which his evidence required--Presence of guilty intention and knowledge oho made essential ingredient of offence of conspiracy under S. 201, Penal Code, 1860-Accomplice, hence, means a guilty associate or participator in crime or who, in some way or other, whether before, during, or after commission of offence, consciously connected with offence in question, or who makes admission of facts showing his conscious hand in offence---Witness not concerned with commission of crime charged against accused---Cannot be said to be an accomplice in crime-Presence of necessary mens rea and participation in crime in some way so as to his being tried along with confederate actually’ perpetrating crime--Necessary test--Burden of showing a witness to be accomplice-”Ordinarily lies on Party alleging it, viz.,accused, although prosecution bound to bring all relevant facts baying a bearing on such aspect of matter to Court’s notice.--[Words and phrases-Accomplice---Witness--Burden of proof-Mens rear.

 

Bagu and others v. Emperor A I R 1925 P C 130; Mahadeo v. The King A I R 1936 P C 242; Phullu and another v. Emperor A. I R 1936 Lah. 731; Govinda Balaji Sonar v. Emperor A I R 1936 Nag. 245; Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101; Nga Pauk v. The King, A I R 1937 Rang. 513; In re : Addanki Venkadu A I R 1939 Mad. 266; In re : S.A. Satlan Khan and others A I R 1939 Mad. 283; Kr. Shyarn Kumar Baugh and others v. Emperor A I R 1925 P C 130; Meade v. The King A I R 1936 P C 242; Pull and another v. Emperor A I R 1936 Lah. 731; Govinda Balaji Sonar v. Emperor A I R 1936 Nag. 245; Nearing Canard Bissau and others v. Emperor A I R 1936 Cal. 101; Nag Pack v. The King, A I R 1937 Rang. 513; In re : Addanki Venkadu A I R 1939 Mad. 266; In re : S.A. Sitar Khan and others A I R 1939 Mad. 283; Kr. Shyam Kumar Singh and another v. Emperor A I R 1941 Oudh 130 ; Jagannath v. Emperor A I R 1942 Oudh. 221; Emperor v. Percy Henry Burn 4 E I C 268; Chudo and another v. Emperor A I R 1945 Nag. 143; Ismail Has4n Alt v. Emperor A I R 1947 Lah. 220; A’ebtl Mandai and others v. Emperor, A I R 1940 Pat. 289; Narayan and others v. State A I R 1953 Hyd. 161; Anna and others v. State of Hyderabad A I R 1956 Hyd. 99 ; Bihari Mandal v. State A I R 1957 Orissa 260 ; Crown v. Ghulam Rasul and others P L D 1950 Lah. 129; The State v. Jamalan and others P L D 1959 Lah. 142; Vemireddy Satyanarayan Reddy and others v. State of Hyderabad P L D 1956 S C (Ind.) 280; Ashutosh Roy v. The State A I R 1959 Orissa. 159; Balbir Singh v. The State A I R 1959 Pb. 332 ; State v. Bashamber Dayal, A I R 1953 Pepsu 82; Sykes v. Director of Public Prosecutions 1962 A C 528 ; Abdul Mansur Ahmad and another v. The State P L D 1961 Dacca 753; Musafar v. The Crown P L D 1956 F C 140 ; Ramaswaml Goanden v. Emperor I L R 27 Mad. 271 ; The King v. Levy 1 K B 158 and Baboo Singh v. Emperor A I R 19 1936 Oudh. 156 ref.

 

Minority view-[Per Dorab Patel, J.]

 

(1ol) Criminal Procedure Code (V of 1898)--

 

- S. 337 read with Penal Code (XLV of 1860), S. 201-Accomplice-Meaning -Persons concerned or associated with each other, or one another, in crime or crimes-Succession of Police Officers examined by prosecution to prove appellant Z having, through their connivance, suppressed evidence of murder of complainant’s father committing on their own admission offences under S. 201, Penal Cods 1860, such Police Officers, held, accomplices.--[Words and phrases-Accomplice].

 

Papa Kamalkhan and others v. Emperor A I R 1935 Bom. ‘ 230 ; Srinivas Mall Bairoliya and another v. Em eror P L D 1947 P C 141 ; Monir on Law of Evidence (Pakistan Edn. , p. 1448; R. v. Elahee Buksh 5 W R 80 (Cr.) ; Bhuboni Sahu v. The King P L D 1949 P C 90 ; Dr. H. S. Gour’s Penal Law of India, 9th Edn., p. 1624; Mahadeo v. The King A I R 1936 P C 242; Ismail v. Emperor A I R 1947 Lah. 220; Emperor v. Percy Henry Burn 4 1 C 268 (Bom.) ; Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101; Nga Pauk v. The Icing A I R 1937 Rang. 513 ; S. A. Sattar Khan and others v. The Crown A I R 1939 Mad. 283; Jagannath v. Emperor A I R 1942 Oudh 221; Ghudo acrd another v. Emperor A I R 1945 Nag. 143; Crown v. Ghulam Rasul and others P L D 1950 Lah. 129 ; Ramaswami Gouden v. Emperor I L R 27 Mad. 271; Mumtazuddin v. The State P L D 1978 S C 11; Vemireddy Satyanarayan Reddy and others v. State of Hyderabad P L D 1956 S C (Ind.) 280 ; Queen v. Concy and others 8 Q B D 534; Davies v. Director of Public Prosecutions 1954 A C 378; Chinna Gangappa v. Emperor A I R 1930 Mad. 870 ; Begu and others v. Emperor A I R 1925 P C 130 and Kalawat and another v. The State of Himachal Pradesh A I R 1953 S C 546 ref.

 

Minority view--[Per G. Safdae Shah, J., Muhammad Haleem, J., agreeing],

 

(2o1) Criminal Procedure Code (V of 1898)-

 

--- S. 337 read with Penal Code (XLV of 1860), S. 201-Expressions “accessory before the fact” and “accessory after the fact” though not defined in Evidence Act, 1872 yet in view of language of S. 337, Cr. P. C., S. 201, Penal Code and Ss. 133 & 114(b), Evidence Act, Courts as well as commentators felt no difficulty to spell out existence of such concepts in legal systems of Indo-Pakistan---”Accessory after the fact” though not particeps criminis yet no better than accomplice---Approver M if not Strictly an accomplice, held, no better than accomplice, hence his evidence needs corroboration-Evidence Act (I of 1872), 8s. 133 & 114(b).--[Words and phrases-Evidence--Accomplice-Approves].

 

Begu and others v. , mperor A I R 1925 P’C 130 ; Mahadeo v. The King A I R 1936 F C 2,42 ; Mahilkilili  Dhalaminl and others v. The King A I R 1943 P C 4 ; Ashutosh Fay v. The State A I R 1959 Orissa 159 ; Pt. Darshan Lai and another v. Munnoo Singh and others A I R 1937 Oudh 258 ; Gopi Nath Sings v. Emperor through Surajpal Singh A I R 1948 Oudh 130 ; Musafar v. The Crown P I. D 1956 F C 140 ; Vemireddy Satyanarayan Reddy and others v. State of Hyderabad P L D 1956 S C (Ind) 280 ; Law of Evidence by Monir (1974 Edo,), pp 1451, 1453 ; Mahadeo v. The King A I R 1936 P C 242 and The State v. Jamalan and others P L D 1959 Lah. 442 ref.

 

Nqa Pauk v. The King A I R 1937 Rang. 513 ; Ramaswami Gounden v. Emperor I L R 27 Mad. 271 ; Jagannath v. Emperor A I R 1942 Oudh 221 ; Ghudo and another v. Emperor A I R 1945 Nag. 143 ; The Crown v. Ghulam Rasul and others A I R 1950 Lah. 129 and Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101 distinguished. Majority View--[Per Anwacal Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nadm asan Shah, JJ.]

 

(pl) Evidence Act (I of 1872)-

 

--- Ss. 133 & 114, illus. (b)-Accomplice evidence-Accomplice-A competent witness and conviction not illegal merely for proceeding upon uncorroborated testimony of accomplice--Section 133 read with S. 114, illus. (b), Evidence Act, 1872 however renders evidence of accomplice unworthy of credit unless corroborated in material particulars--Rule being essentially a rule of caution, meaning of term “accomplice” not to be unnecessarily enlarged so as to exclude or discredit evidence of persons in best position to disclose facts relevant to crime yet not consciously concerned in crime so as to be indicted jointly with main accused-Section 114 itself contemplating situation where evidence of aoc3mplice could be accepted without insisting on corroboration, treatment of a witness as “practically an accomplice” or “no better than accomplice,” even though he could not be jointly indicted. with main a-wised cu account of his not being consciously concerned in crime perpetrated by actual culprits-Leads to confusion of thought  witness root accomplice on account of absence of means rea-Rcal question arising not of requiring corroboration of his evidence but of degree of credit to be attached to his testimony depending upon all Pacts and circumstances, of case.-[Accomplice-Witness”--Evidence-Woods and phrases--Mew real.

 

(ql) Penal Code (XLV  of 1860)---

 

-----S. 201-Trial for conspiracy and murder--Witness riot accomplice in having not been concerned in perpetration of conspiracy and murder itself but having consciously done some acts bringing him within mischief of S. 201 by way of concealment of evidence to shield offender-Cannot be tried for offence of conspiracy and murder,-[Accomplice--Conspiracy---Murder---Witness].

 

Minority view-[Per Dorab Patel, ,i.]

 

(lql) Penal Code (XLV of 1860)--

 

- S. 201--Illegal interference of Chief Security Officer, in investigation if accepted, held, would mean concealment and destruction of evidence in a murder case within meaning of S. 201, P. P. C. rendering such person an accomplice.--[Accomplice-Evidence].

 

(2ql) Penal Code (XLV of 1860)--

 

.- S. 201-Prosecution not required to produce all available witnesses in ordinary cases-Position, however, quite different when prosecution relies on evidence of accomplices-Prosecution in such cases bound to produce all independent evidence available to corroborate any statement made by accomplice provided such fact material to prosecution case-Failure to produce such evidence, held, fatal to such part of evidence of accomplice which could have been but was not corroborated by independent evidence.-[Witness-Evidence---Accomplice].

 

Bhuboni Sahu v. The King P L D 1949 P C 90 ; Queen-Empress v. Chagan Dayaram and another I I. R 14 Dom. 331 ; Queen-Empress v. Malhar Martand Kulkarni I L R 26 Dom. 193 ; Queen-Empress v. Deodar Sing and another I L R 27 Cal. 144 ; Emperor v. Edward William Smither I L R 26 Mad. 1 ; Emperor v. Anwar All A I R 1948 Lab. 27 ; Ghulam Muhammad v. The Crown P L D 1957 Kar. 410 ; Osimuddin Sarkar v. The State P L D 1961 Dacca 798 and Papa Kamalkhan and others v. Emperor A I R 1935 Dom. 230 ref.

 

Majority view -[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hann Shah, JJ.]

 

(rl) Criminal Procedure Code (V of 1898)-

 

-- S. 337 read with Evidence Act (I of 1872), S. 133 & 114, illus. (b)--Accomplice evidence-Corroboration-Theory of double test-Rule requiring approver’s evidence to first show his being a reliable witness and then to receive sufficient corroboration-Phrase “reliable witness” in rule-Refers not to his moral character and dependability but aims at determination of whether his evidence probable and natural in circumstances of case.-[Accomplice-Words and phrases-Evidence].

 

Under section 133 of the Evidence Act an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, this section is to be read alongwith illustration (b) to section 114 of the same Act, both being parts of the same subject. In view of the presumption mentioned in this illustration, namely, that the Court may presume that an accomplice- is unworthy of credit, unless he is corroborated in material particulars, the Courts have adopted a rule of caution, which has almost acquired the status of a rule of law, that as the evidence of an accomplice is tainted, it generally requires corroboration. The rule being essentially a rule of caution; the meaning of the term “accomplice” must not be unnecessarily enlarged so as to exclude, or discredit the evidence of persons who may be in the best position to disclose facts relevant to the crime, and yet not be consciously concerned in the crime in such a manner that they could be indicted jointly with the main accused. Section 114 of the Evidence Act itself also contemplates a situation where evidence of accomplices can be accepted without insisting on corroboration, as, for instance, where their accounts tally without there being the possibility of previous concert between them as to their statements. In these circumstance, it leads to confusion of thought to treat a witness as “practically an accomplice”, or “no better than an accomplice”, even though he could not be indicted jointly with the main accused, on account of his not being consciously concerned m the crime perpetrated by the actual culprits. If a witness is not an accomplice in the sense indicated above, namely, on account of the absence of mens rea, then the real question is not of requiring corroboration of his evidence, but of the degree of credit to be attached to his testimony, depending ors all the facts and circumstances of the particular case. In other words, he has then to be judged as any other witness, without introducing an artificial requirement of corroboration of his evidence by applying the rule contained to illustration (b) to section 114 of the Evidence Act.

 

Sarwan Singh Ratan Singh v. State of Punjab A I R 1957 S C 637 ; Luchhi Ram v. State of Punjab A I R 1967 S C 792 ; Dr. Muhammad Bashir v. The State P L D 1967 S C 447 ; Balmukand v. Emperor A I R 1915 Lab. 16 ; Chatru Malak v. Emperor A I R. 1928 Lab. 681 ; State of Bihar v. Srilal Kejriwal A I R 1960 Pat. 459 ; Sharaf Shah Khan v. State of Andhra Pradesh A I R 1963 Andh. Pra. 314 ; Prananath v. Banamall A I R 1958 Orissa 228 ; Plara Singh v. State of Punjab A I R 1969 S C 961 ; Babuli v. State of Orissa A I R 1974 S C 775 and Major E. G. Barsav v. State of Bombay A I R 1961 S C 1762 ref.

 

Minority view-[Per Dorab Patel, J.]

 

(lr1) Criminal Procedure Code (v of 1898)--

 

--- S. 337 read with Evidence Act (I of 1872), S. 114, Illus. (b)-Accomplice-Evidence of accomplice---Always requires corroboration and has to pass a double test-Such evidence even if passing test of reliability can still not be accepted without corroboration.-[Accomplice--Evidence].

 

Queen v. Maganlal and Motilal I L R 14 Dom. 115 ; Nga Aung Pe v. Emperor A I R 1937 Rang. 209 ; Allisab Rajesah v. Emperor A I R 1933 Dom. 24 ; Ishaq v. The Crown P L D 1954 F C 335 ; Nazir and others v. The State P L D 1962 S C 269 ; Muhammad Panah v. Emperor A I R 1934 Sind 78 (2) and Ajun Shah v. The State P L D 1967 S C 185 ref.

 

Minority view--[Per G. Safdar Shah, J., Muhammad Haleem, J., agreeing].

 

(2r1) Criminal Procedure Code (V of 1898)-

 

----- S. 337 read with Evidence Act (1 of 1872), S. 114, illus(b)-Scrutiny of evidence of approver revealing same to be natural and probable--Court even thereafter must look for its corroboration which in case of an ordinary witness would not be necessary.-[Approver-Evidence-Witness).

 

Dr. Muhammad Bashir v. The State P L D 1971 S C 447 ; Sarwan Singh Rattan Singh v. State of Punjab A I R 1957 S C 637 ; Luchhi Ram v. The State of Punjab A I R 1967 S C 792 ; Plara Singh v. The State of Punjab A I R 1969 S C 961 ; Babuli v. The State of Orissa A I R 1974 S C 775 ; Noor Zaman Khan v. Mst. Maimunnissa Bibi and others A I R 1958 Orissa 228; State of Bihar v. Srilal Kojrlwal and others A I R 1960 Pat. 459 ; Sharaf Shah Khan and others v. State of Andhra Pradesh A I R 1963 Andh. Pra. 314 ; Balmukand v. Emperor A I R 1915 Lah. 16 ; Chatru Malak v. Emperor A I R 1928 Lah. 681 and Major E. G. Barsay v. State of Bombay A I R 1961 S C 1762 ref.

 

Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elabee Chaahan and Nasim Hasan Shah, JJ.]

 

(al) Penal Code (XLV of 186(1)-

 

---- Ss. 302/109 etc.-[Murder-trial]-Appreciation of evidence-Approver          1.4 M enjoying a special position under accused Z (former Prime Minister), in close and constant touch with him throughout his tenure of office ; shown all kinds of favours and considerations by accused Z. ; he being not the only civilian official taken into custody  n proclamation of martial law ; having held important positions invoiving assumption of responsibility and exercise of authority-Held, difficult to hold his having become an instrument in hands of Martial Law authorities to deliberately and falsely concoct story narrated at great length at trial-Even otherwise if approver M had any reason to falsely implicate former Prime Minister no reason existed for Martial Law authorities or for approver M himself to falsely assign important operational role in conspiracy to another accused officer.-[Evidence-Approver].

 

(tl) Criminal trial--

 

----Obliging concessions by witnesses-Concessions made in his statement by a witness produced merely to file a report-Held, cannot prevail  against direct testimony on point given by other witnesses and supported by documents.-[Witness].

 

            Baghu v. The State P L P 1972 S C 77 ref.

 

(ul) Criminal trial Witness-Proof-Disparity of one day in witness’s statement regarding taking place of meeting --Witness deposing about event three years later from memory and not from any documentary record--Held,      cannot be described as deliberate lie nor could affect main tenor of statement.-[Witness-Proof].

 

(vl) Criminal trial-

 

---Witness-Contradiction-Statement not made by witness in his examination-in-chief but elicited from him in cross-examination - Held, cannot be treated as an improvement much less a contradiction.-[Witness-Evidence].

 

(wl) Criminal trial-

 

-----Witness-Contradiction---Mere amplification of earlier statement---Neither a contradiction nor an improvement.-[Witness---Evidence].

 

(xl) Criminal trial-

 

-- Witness--Contradiction-Clarification of ambiguous statement or giving details in cross-examination-Held, not contradictions in statement of witnesses.---[Witness-Evidence].

 

(yl) Criminal trial-

 

--,- Witness-Contradiction--Referring to slime subject in a different language with more clarity--.Held, neither an improvement ricer a contradiction.-[Witness-Evidence].

 

(zl) Evidence Act (I of 1872)

 

-- S. 8-Motive-Relevant as an aid in appreciation of evidence in criminal cases-Contention that motive is not relevant in conspiracy cases, held, not correct.-[Motive-Conspiracy-Evidence]. [Jit Singh v. Emperor A 1 R 1925 Lah. 526 ; Kartar Singh v. Emperor A I R 19.;6 Lah. 400 and Qabil Shah and others v. The State P L D 1960 Kar. 697, held, not applicable].

 

At Singh v. Emperor A I R 1925 Lah. 526 ; Kartar Singh v. Emperor A I R 1936 Lah. 400 and Qabil Shah and others v. The State P L D 1960 Kar. 697 held not applicable.

 

Dr. Nand Lal’s commentary on the Indian Penal Code 1929 Edition; Law of Evidence by Monir, p. 57, Abdur Rashid v. Umid Ali and others, P L D 1975 S C 227 ; Mst. Razia Begum v. Hurayat Ali and 3 others P L D 1976 S C 44 ; and Dost Muhammad v. The State 1974 P Cr. L J 275 ref.

 

Minority view-[Per Dorab Patel, J.]

 

(1zl) Evidence Act (I of 1872)-

 

-- S. 8-Evidence of motive-Always a weak form of corroborative evidence-Apart from evidence of alleged interference of appellant Z with investigation of murder, evidence produced about his conduct of a very equivocal nature, reasonably capable of innocent interpretation, hence, of no corroborative value.-[Motive-Evidence].

 

Majority View-[Per S. Anwarnl Haq, C. J., Muhammad Akram, Karam Elahee Chanhan and Nasim Hassan Shah, JJ.]

 

(al) Penal Code (XLV of 1860)-

 

--Ss. 302/109 etc.-[Murder trial]-Motive-Appreciation of evidence--Complainant in F. 1. R. lodged within minutes of death of his father asserting firing having been made on him due to political reasons he being a member of Opposition; strictly critical of policies of Government headed by accused Z; accused Z having addressed him in a meeting of National Assembly saying he was fed up with complainant and complainant could not be tolerated any more----Complainant in his evidence before Court giving details of his political differences with accused Z stating that though he was elected on ticket of accused Z’s party yet he considered Z as power-hungry and as such his relations with him got really strained, that when Z declared in a public speech that his party would not attend Dacca Session of National Assembly and threatened that whoever goes to Dacca his legs would be broken and would go on a single fare, he went to Dacca; that he did not approve of Z’s role by publicly addressing East Pakistan leader; “You on that side and we on this” and used to criticise him strongly; that he went on hunger strike over liberty of Press; that pro Z elements attacked him in his own town, once resulting in fracture of his hand and next in getting pellets hit his legs and various injuries to his brother; that as a matter of strategy he adopted a policy of peace because Z was not only executive head of Government but also Chief Martial Law Administrator; that on lifting of . Martial Law he again started criticising Z and resultantly he was expelled from Z’s political party; that when in National Assembly he interrupted Z’s speech and stated that Constitution was not unanimous as claimed, Z, said: “you keep quiet. I have had enough of you; absolute poison. I will not tolerate your nuisance any more”; that complainant also retorted in same manner and said “I cannot tolerate your style also” and Z in reply said “I have bad enough of this man. What does he think of himself,”; that he moved a privilege motion complaining of receipt of threatening calls to face dire consequences-Statement of complainant materially corroborated by authentic documentary evidence to prove his strained and hostile relations with accused Z Complainant openly charging Z as responsible for destroying country for sake of power and bitterly criticising him in respect of his actions and promises; that Z was strongest dictator in the world, that he was threatened death if he did not stop criticising Z; that firing was resorted to while he was addressing . meetings at several places and on many occasions attempts were made to either kill or injure him; that Federal Security Force was used to disturb public meetings,’ to commit political murders etc. and to dislodge opponents of Government - Defence contention of such allegations being false-Does not detract from fact of complainant having been indulging in bitter criticisam of Z and his policies and such criticism being all the more infuriating to Z if not correct or justified-Complainant also charging Z as having taken thirty lacs of rupees from leader of Qadiani community in Qadiani issue-Federal Security Force stated by complainant to have been Prime Minister’s favourite and used to carry out lathi charges and to shoot people-Existence of hostility between two also proved by Chief Security Officer of accused Z such witnesses admitting complainant having been kept under surveillance, his telephones being tapped, and personal interest having been taken by Z in complainant--.Chief Security Officer of Prime Minister Z and his Assistant having directed investigating officers to examine every possible motive but case still filed thereby showing discovery of no other motive-Nothing brought out in lengthy cross-examination of prosecution witnesses to show any of them, or any of confessing accused, having any motive of their own to commit murder of complainant’s father-Approver M on other hand stating his father and deceased being family friends-Accused Z, held, had strong motive to do away with complainant.-[Motive-Evidence].

 

Minority View-[Per Dorab Patel, J.]

 

(1a2) Penal Code (XLV of 1860)-

 

--- Ss. 302/109 etc.--Prosecution’s stand of having proved complainant having had no enemies except appellant Z-Not understandable---Evidence existing proving complainant’s enmity with a local being far bitter than any difference of opinion with appellant Z.-[Evidence].

 

(2a2) Penal Code (XLV of 1860)-

 

-- Ss. 302/109 etc.-Prosecution case about motive, held, fails.-[Motive].

 

(3a2) Penal Code (XLV of 1860)-

 

Ss. 302/109 etc.-Lucid description in F. I. R. of occurrence wherein complainant’s brother sustained more than a hundred injuries held suggested local enmities against complainant being extremely violent.

 

Minority View-Per G. Safdar Shah, J., Mohammad Haleem, J, agreeing]

 

(4a2) Penal Code (XLV of 1860)--

 

- Ss. 302/109 etc.- Evidence on record not susceptible to bear appellant Z having been responsible for complainant’s having always been attacked-Evidence. on other hand, showing rank and file of Z’s political party having resented his confrontation with appellant Z held by workers of party in very high esteem-Probable in circumstances for such workers to have taken upon themselves to teach complainant a lesson and attack on him at every place in country when complainant attempted to voice his views against person and policies of appellant Z-Complainant having initiated anti-Ahmadis movement and also having earned in his home town enmity of a prominent member of appellant Z`.s political party and such person also having challenged him to resign his seat in Assembly and seek fresh elections, appellant Z alone having been responsible for alleged incident cannot be said with certainty, nor could it be said that he alone had motive to assassinate him-Prosecution evidence, specially when wholly circumstantial-To be so construed as to eliminate possibility of any reasonable doubt about innocence of accused.-[Evidence].

 

(5a2) Penal Code (XLV of 1860)-

 

-- Ss. 302/109 etc.-Appreciation of evidence-Principles governing safe dispensation of criminal justice wholly ignored by High Court resulting in acceptance of ail prosecution evidence without testing it on anvil furnished by pragmatic, well-tested and enduring principles,, prosecution held, failed t3 establish its case against appellants Z and A at all much less beyond any reasonable doubt-Possibility, held further, could not be excluded of either approver M or approver G having had a motive of their own to kill complainant.

 

 (6a1) Penal Code (XLV of 1860).-

 

-- Ss. 302/109 etc.-Appellant Z not only denying having any motive to assassinate complainant but complainant and approver M both extensively cross-examined to show existence of quite a few other possible motives for attack on complainant by unknown persons---Analysis of record establishing latter possibility-Believing prosecution evidence by High Court as a matter of course without subjecting it to critical analysis with a view to excluding every other reasonable hypothesis compatible with innocence of accused-Not warranted---Many vital links in long chain forged by use of circumstantial evidence snapped resulting in chain being broken into several pieces---All pieces of evidence relied on by prosecution as to alleged subsequent conduct of appellant Z, held, wholly illusory and of no consequence. ­[Evidence-Motive].

 

Law of Evidence by N. D. Basu 1950 Edn., pp. 47 & 50.

 

Majority view-.[Per Aownrol Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hassan Shah, JJ.]

 

(b2) Criminal trial---

 

-- Admissibility in evidence-Source or intelligence reports-Not admissible in evidence but could be admitted to show fact of their having been submitted to a particular officer in respect of a certain person and of certain comments having been made by such officer on perusal of such reports:-[Evidence].

 

Islamic Republic of Pakistan v. Abdul Wall Khan P L D 1976 S C 75 ref.

 

Minority View-[Per G. Safdar Shah, J., Muhammad Haleem, J, agreeing]

 

(lb2) Criminal trial--

 

----- Source of secret reports--Inadmissible in evidence.-[Evidence].

 

Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wall Khan, M. N. A. former President of Defunct National Awami Party P L D 1976 S C 57 and Mst. Soiran alias Saleema v. State P L D 1970 S C 56 ref.

 

Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam

 

Elahee Chauhan and Nasim Hassan Shah, JJ].

 

(e2) Criminal Procedure Code (V of 1898)---

 

S. 162-Statements to police -Prosecution supplying copy of statement to defence as found in police record of investigation of incident-Statement, held, could not be used to contradict and cross-examine complainant unless duly proved as required by S. 162-(complainant having emphatically denied making any such state­ment).-[Statement to police].

 

(d2) Criminal Procedure Code (V of 1898)-

 

.-- S. 265-C read with Ss. 161 & 162-Copies of statements made before police-Supply of, to accused--Statement not recorded under S. 161 during investigation of present murder but in a different case under S. 307, P. P. C. Not one of statements required to be supplied to defence under S. 265-C-Defence in such case under duty to summon officer concerned as its own witness in case it wanted to make use thereof under S. 162.-[Statement to police-Witness].

 

(e2) Criminal Procedure Code (V of 1898)-

 

S. 540-Summoning of witness as Court witness--Power under S. 540 to summon Court witnesses-Entirely discretionary--Accused cannot insist on summoning any witness as Court witness specially -when he possessed opportunity of calling witness as defence witness if he considered his evidence necessary.

 

Minority view-[Per Dorab Datel, J.]

 

(1e2) Criminal trial-

 

--- Proof-Presumption-Prosecution under obligation to examine a particular witness in proof of its submission regarding bullets used in assault bearing a particular mark having been issued only to Force allegedly having used such bullets--Prosecution filing application for summoning such witness but such application rejected for witness having not been named in calendar of witnesses-Omission of witness’s name in calendar of witnesses, held, no ground for debarring witness from being examined if he could be examined without causing any delay-Prosecution having filed application long before closure of case examination of witness could not have caused any delay and opposite---party having not opposed application witness should have been summoned or rather Court should have examined witness of its own accord-Fact of complainant not being responsible for non-examination of such witness, held further, did not help prosecution case due to failure to examine witness having left a yawning gap in its evidence.[Proof-Presumption-Witness].

 

Majority View--[Per Anwarul Haq. C. J., Mohammad Akram, Karam Elahee Chaahan and Nasim Human Shah, JJ.]

 

(f2) Penal Code (XLY of 1860)--

 

-- Ss. 302!109 etc.-[Murder-case]-Appreciation of evidence-Contention that complainant being a non-entity accused Z could have no motive to arrange for his murder---Held, facts on record sufficient to show complainant having been an important political figure and capable of hitting back at Prime Minister accused Z on floor of Parliament-Facts, held, negative assertion of complainant being a non-entity whose utterances could be easily ignored by Z.-[Evidence-Motive].

 

(g2) Penal Code (XLV of 1860)-

 

.-- Ss. 302/ 109 etc.-[ Murder-case]-Appreciation of evidence-Contention regarding witness S having been deliberately chosen to falsely implicate accused Z owing to pressure exerted on him by Martial Law authorities-Several civilian officials appearing to have been taken into custody on proclamation of Martial Law, specially those closely associated with Prime Minister Z-Mere fact of S having been taken into custody, held, would not necessarily lead to inference of his having been persuaded to falsely implicate his erstwhile superior and benefactor-Fairly long association between S and appellant Z leading to appointment of S by Z to a position of great personal confidence and trust as his Chief Security Officer despite his being a dismissed civil servant-Device adopted to pay him his salary as a legal consultant to an organisation for which he never worked and his continuance in service on same terms even after his cessation as Chief Security Officer, held, negative defence plea.-[Evidence-Presumption].

 

(h2) Penal Code (XLV of 1860)--

 

-- Ss. 302/109 etc.-[ Murder-case)-Appreciation of evidence-Chinese ammunition of 7.62 mm. calibre issued to Federal Security Force from Central Ammunition Depot of Army and one of lots supplied bearing marking 661/71-Approver G given 1,500 rounds out of this ammunition for training purposes at Commando Camp started, by him cinder directions of appellant A-Several rounds fired in attack on complainant out of this stock at station I-Incident at Ion such evidence clearly shown to be an attempt in direction of execution of conspiracy intended to eliminate complainant through agency of Federal Security Force and provides corroboration of evidence of both approvers----Out of same stock 500 rounds brought by Approver G to station L-Calibre of ammunition supplied to Federal Security Force and empties recovered from spot of murder at station L being same, significant support held given to prosecution in its claim that in both incidents of I and L personnel and ammunition of Federal Security Force came to be employed.-[Evidence].

 

Minority view--[Per nora1o Patel, J.]

 

(ih2) Penal Code (RLV of 1860)--

 

S. 302/ 109 etc. -[Murder-case]-Weapons used in occurrence being not recovered but empties alone having been recovered, prosecution bound in duty to lead evidence to prove empties being bullets belonging to federal Security Force and of their being not available elsewhere--prosecution having applied for summoning of a witness from Ammunition Depot to prove such fact but its application having been rejected by trial Court, prosecution, held. failed to prove ammunition used in occurrence having belonged exclusively to Federal Security Force.-[Evidence].

 

Majority view-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chaohan and Nasim Hasan Shah, JJ.]

 

(i2) Penal Code (XLV of 1860)-

 

-- Ss. 302/109 etc.-[Murder-case]-Appreciation of evidence-Contention that ammunition of calibre allegedly used in attacks on complainant being in use in other agencies as well, mere fact of recoveries of empties of such calibre from spot of occurrence could not necessarily implicate Federal Security Force in incidents-Held: such facts not to be looked at in isolation but with reference to facts, circumstances, and context of whole case and in circumstances of cases a probability of participation of Federal Security Force clearly made out, thus providing an item of corroboration to prosecution case.-[Evidence].

 

(j2) Criminal Procedure Code (V of 1898)-

 

-- S. 510 -- Fire-arms - Expert’s opinion-Objection as to mode of proof, as distinguished from relevancy and admissibility of evidence-Cannot be permitted to be raised where party not objecting at time of tender of document in evidence and its being placed on record as proved-Objection even not raised in memo. of appeal nor in arguments in support of appeal-Omission to raise objection at trial stage bereft prosecution of opportunity to produce evidence in rectification-Police officers on different dates having regarded person giving report as Arms Expert appointed by Government, in view of presumption attaching regularity to official acts, Expert’s opinion could not be brushed aside-Fact of report having been signed in the name of, and for, Chief Inspector of Armaments, Head of Organisation, could not mean report being not of relevant Expert but of Chief Inspector of Armaments-Reports on ammunition in question. hence, held, could not be invalidated on ground of being not proved properly.--[Expert-Evidence-Proof-Presumption]

 

Dil Muhammad and another v. Sain Das A I R 1927 Lah. 396 ; Emperor v. Bachcha A I R 1934 All. 873 ; Gopal Das and another v. Sri Thakurji anal others A I R 1943 P C 83 ; Piao Gut v. State P L D 1960 S C 307 ; Public Prosecutor v. Pamarli Vankata Chalamaiah A I R 1957 Andh. Pra. 2E6 and A I R Manual (Civil and Criminal) (2nd Edition) Vol. 5 p. 5388 ref.

 

Muhammad Shafi v. The Crown A I R 1949 Lah. 240 distinguished.

 

Minority view-[Per Dorab Patel, J.]-

 

(jj2) Criminal Procedure Code (V of 1898)-

 

--- S. 510-Failure to object to admissibility of documents-Would only preclude failing party from challenging execution of document---Question whether contents of document were correct-Different matter-Expert carrying out test having not been examined, S. 45 Evidence Act, 1872 fatal to argument of no objection having been taken to admissibility of document-Privilege conferred by S. 510 being limited to reports of Chemical Analyser and Assistant Chemical Analyser appointed by Government, prosecution’s duty to she wexper examining bullets having been appointed by appropriate Government as such-Expert examining bullets, hence, not competent to issue certificate under S. 510.-[Evidence-Document--Expert evidence].

 

(2j2) Criminal Procedure Code (V of 1898)-

 

-- S. 510-Court would be failing in its duty if it relies upon an expert’s report not containing reasons for his finding-Public Prosecutors would be well-advised to examine expert, despite privilege conferred on them by S. 510, in cases where expert’s opinion is crucial to prosecution case or where his opinion turns on some controversial or complicated matter.-[Duty of Court--Expert evidence].

 

(3j2) Criminal Procedure Code (V of 1898)-

 

-- S. 510-Bullets of disputed calibre not available to public except through illegal purchases-Submission even if correct, such would imply a probability of weapons used in occurrence having come from Force in question-Prosecution, however, held, cannot prove its case by relying on probabilities--[Evidence].

 

Majority View-[Per Anwarol Haq, C. J., Mohammed Akram, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.]

 

(k2) Evidence Act (I of 1872)-

 

-- S. 8-Subsequent conduct of party--Admissibility-Subsequent conduct of accused if intended to be utilised against accused-Should be incompatible with his innocence and not capable of explanation on any other hypothesis-Prosecution attempting to utilize conduct of a person other than accused-Should in first instance show such conduct having been with knowledge and authority of accused---Subsequent conduct, held, may be utilized as corroboration of other substantive evidence but by itself it does not furnish proof of guilt of accused.-[Accused--Proof-Conduct].

 

Emperor v. Percy Henry Burn 4 I C 268 ; Laijam Singh v. Emperor A I R 1925 All. 405 ; Muhammad v. Emperor A I R 1934 Lah. 695 ; Rajmal Marwadi v. Emperor A I R 1925 Nag. 372 ; Chatru Malak v. Emperor A I R 1928 Lah. 681 ; Shankarshet Ramshet Uravane v. Emperor A I R 1933 Bom. 482 and Rangi Lall v. Emperor A I R 1930 Oudh 321 ref.

 

(l2) Criminal trial-

 

-- Investigation of crime, interference with--Commission of Inquiry constituted but its report ordered by Prime Minister not to be published on ground of its being adverse-Investigation agency in spite of Tribunal’s opinion in respect of perpetrators of crime being well organised, well equipped, and resourceful, not taking any steps to interrogate any official of Federal Security Force, or of any other unit whom ammunition of type used in incident issued from time to time and case filed as “untraced” despite complainant crying hoarse for justice and publicly declaring not able to get justice as long as accused Z remained in power-Prime Minister’s Chief Security Officer and his Assistant remaining in direct touch with Police Officers of District where murder committed and taking various steps with a view to ensuring investigation not connect Federal Security Force or Prime Minister with incident-Directions with knowledge of Prime Minister, given to Information Department to give publicity to statements of certain witnesses before Inquiry Tribunal as were considered to be favour able-Police officers concerned making it absolutely clear of not having had an independent hand in investigation of crime under consideration and of having been left by their local officers at mercy of Chief Security Officer to Prime Minister and his Assistant-Evidence leading to conclusion of Chief Security Officer having acted with authority and full knowledge of Prime Minister-Contention of Prime Minister being not associated with aqy of such moves in circumstances, held, not correct.-[Investigation-Evidence].

 

Minority View-[Per Dorab Patel, J.]

 

( l12) Criminal trial-

 

---- No sufficient evidence existing establishing illegal interference with investigations much less of their having been made on orders of appellant Z.-[Investigation-Evidence].

 

Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elabee Chaohan and Nasim Hasan Shah, JJ].

 

(m2) Penal Code (XLV of 1860)-

 

-- S. 201-No charge under S. 201 framed in case nor witness (former Chief Security Officer to accused Prime Minister) arrayed in list of accused persons in challan submitted by State-Sucb witness though mentioned as one of accused persons in private complaint $led by complainant yet complainant not attributing any incriminating part to such Witness-Witness also not shown to have known or having had reason to believe of a message of Prime Minister sent to Director General Federal Security Force (approver) relating to mission of killing complainant-Witness not having any hand or conscious involvement in hatching or execution of conspiracy leading to present murder Nor witness shown to be misdirecting investigation with knowledge and intention of screening offender from legal punishment-Witness all along acting under directions of his employer (Prime Minister accused Z) to clear latter’s name and shown to have advised investigating police to act with wisdom and caution telling them of Prime Minister being falsely accused-Witness in circumstances, held, could not be charged under S. 201 and be tried jointly with appellants, he being neither an accomplice or a person no better than accomplice Evidence of witness, held further, could as such be used in corroboration of approver’s statement.-[Witness-Charge-Accomplice-Joint trial-Approver].

 

Minority View-[Per Dorab Patel, J.]

 

(Im2) Penal Code (XLV of 1860)-

 

-- S 201-111egal interference of Chief Security Officer, approver, in investigation if accepted held, would mean concealment and destruction of evidence in a murder case within meaning of S. 201, .P. P. C. rendering such person an accomplice.-[Accomplice-Investigation].

 

Majority View--[Per Anwaral Haq, C. J., Muhammad Akram, Karam Elabee Cbauhan and Nasim Hasan Shah, JJ.].

 

(n2) Criminal trial—

 

-- Ballistics-Firing-Fall of bullets-Contention that if two persons fired at car driven by complainant empty cartridges could only be at two places where such persons stood and not at four places as found in present case, held, not correct-Attocks on mobile victims have to be fired from several places resulting in drop of empties at several places.-[Firing].

 

Minority View-[Per Dorab Patel, J.]

 

(1n2) Criminal trial-

 

--- Ballistics, Science of-Firing at complainant’s car if done in manner alleged, empties of bullets must have been ejected behind him through an angle-Odd empty possibly also having been thrown in front of person firing-Heap of six or seven empties, however, held, not explained by manneralleged.-[Firing].

 

Minority View-[Per G. Safdar Shah, J., Muhammad Haleem J, agreeing].

 

(2n2) Criminal trial-

 

--- Demonstration of live firing-Inspection note regarding such demonstration -No evidence hence, not to be relied upon in support of any conclusion-Note however helpful in un4erstanding evidence in case-Site plans showing recovery of empties from four different spots lying almost in clusters but demonstration of live firing giving an altogether different pattern. [Firing].

 

Majority View--[Per Anwarul Haq, C. J., Muhammad Akram, Karam

 

Elabee Chauhan and Naim Hasan Shah, JJ.]

 

(02) Penal Code (XLV of 1860).-

 

-- Ss. 120-A & 120-B-”Criminal conspiracy”-Meaning and scope-Offence of criminal conspiracy consists in mere agreement between two or more persons to do an illegal act or an act not illegal by illegal means-Conspiracy consists not merely in intention of two or more persons but in agreement of two or more persons to do an illegal act or to do a legal act by illegal means-Design as long as resting in intention only not indictable-No agreement, except an agreement to commit an offence, held, amounts to criminal conspiracy unless some overt act, besides agreement, done in pursuance of conspiracy.-[Words and phrases-Agreement].

 

Denis Dowling Mulcahy v. Reg (1868) H L 306; Deniel O’Connel and others v. Her Majesty the Queen (1844) 8 E R 1061; Quinn v. Leathern (1900-1903) E R (Reprint) 1; Withers and another v. D. P. P. (1970) 60 Cr. App. Rep. 85 (H L); R v. Newland and others (1954) 1 Q B 154; Queen v. Aspinall and others 1876 Q B D 48 ; Flalsbury’ Laws of England, 4th Edn., para. 58 ref. Minority View-[Per Dorab Patel, J.]

 

(lo2) Penal Code (XIV of 1860)-

 

----- Ss. 120-A & 120-B-Agreement coming within mischief of S. 120-BSim.ilar to other agreements under Contract Act, except for its being illegal due to criminal intent-Proof of charge of conspiracy hence required proof of appellant Z having asked approver M to join conspiracy and of M having agreed to do so -Question of acceptance of an offer-Could arise only when an offer made-Nothing in evidence of Z having asked M to join conspiracy, nothing, held, turns on

 

question whether M carried out Z’s order reluctantly or with enthusiasm.-[Agreement-Proof]. Minority View-[Per G. Safdar Shah, J. Muhnmmad Haleem J, agreeing].

 

(2o2) Penal Code (XLV of 1860)-

 

Ss. 120-A & 120-B-Word “conspiracy”-Meaning.-[Words and phrases].

 

In Corpus Juris Seeundum (Volume 15) `conspiracy’ has been defined to mean: “A combination of two or more persons intentionally participating in the furtherance of a preconceived common design and purpose is essential to constitute a conspiracy------one person cannot conspire with himself. Furthermore, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy. The essence of the offence of conspiracy is the fact of combination of agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other”.

 

Majority View--[Per Anwarul Haq, C. J.. Muhammad kkram, Karam Elahee

 

Chauban and Nasim Hasson Sbah, JJ.]

 

(p2) Penal Code (XLV of 1860--

 

_-- S. 120-A-Criminal conspiracy-Nature of word “agreement” as used in relation to offence of conspiracy-Not to be construed in any technical sense as understood in law of Contract-No requirement of its being expressed in any formal manner or words---Minds of parties meeting understandingly so as to bring about an intelligent and deliberate agreement to do acts and to commit offence charged alone required-Agreement to commit offence may be express or implied or partly express and partly implied-Each conspirator need not essentially have knowledge of details of conspiracy or of exact part to be performed by other conspirators in execution thereof---Nor details to be worked out in advance to bring a given act within scope of general plan-General plan to accomplish result sought by such means as may from time to time be found sufficient--Meeting of minds, a mutual implied understanding or tacit agreement, all parties working together with a single design for accomplishment of common purpose-Sufficient to constitute conspiracy--Conspiracy arises and offence committed as soon as agreement made and offence continues to be committed as long as combination persists, viz., until conspiratorial agreement terminated by completion of its performance or by abandonment or frustration, or due to some other cause.[Conspiracy-Words and phrases-Agreement].

 

Corpus Juris Secundum Vol. 15A, pp. 602 to 603; Dr. Gianville Williams on Criminal Law, 2nd Edn. p. 666, Criminal Law by Smith and Hogan, 4th Edn., p. 236 and Safdar Ali’s case P L D 1953 F C 93 ref.

 

Minority View-[Per G. Safdar Shah, J., Muhammad Haleem, J., agreeing)]

 

(lp2) Penal Code (XLV of 1860)-

 

S. 120-A-Word “Consent”-Meaning.-[Words and phrases].

 

In the Dictionary of English Law by Earl Jowitt the word ‘consent’, which is an essential ingredient of an “agreement”, has been defined to mean “an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil of either side. Consent presupposes three things a physical power, a mental power, and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.”

 

Black’s Law Dictionary (1968 Edn.), Dictionary of English Law ref.

 

 (2p2) Penal Code (XLV of 1860)-

 

- S. 120-A-Criminal conspiracy as envisaged in S. 120-A, P. P. C.---Must be product of two consenting minds uninfluenced by any consideration of threat, intimidation, coercion or undue influence----Approver M having been threatened or coerced to agree to conspiracy hence no agreement of criminal conspiracy effected.-[Conspiracy---Agreement].

 

Denis Dowling Mulcahy v. The Queen (1868) L R 3 H L 306 ; Quinn v. Leathern 1901 A C 495 ; Gour on Penal Law of India, S. 120-A; Maqbool Hussain v. State P L D 1960 S C 382, Mirza Akbar v. The ;: King-Emperor I L R 1940 Lah. 612 ; H. H. B. Gill and another v. The King A I R 1948 P C 128 ; Sardul Singh Caveshar v. State A I R 1957 S C 747 ; Vishindas Lachhmandas v. Emperor I L R 1943 Kar. 449 ; Abdul Aziz v. Emperor 137 1 C 317 Dramath Nath Talukdar v. Saroj Ramjan Surkar (1952) 2 S C R 297 ;T Mirza Akbar v. King-Emperor A I R 1940 P C 176; Webster’s New International Dictionary, 2nd Edn., p. 571, Sura XII, Ayats 8, 9, 10, 15, 16 and 17 of Translation and Commentary on the Holy Quran by A. Yusuf Ali (1973 Print), Black’s Law Dictionary Revised 4th Edn. ; Ashutosh Chattopadhay and others v. Nalinakshya Bandopadhysy and others A I R 1965 1937 Cal. 467 ; Nadir Ali Barqa Zaidi and others v. The State of U. P. A I R 1960 All. 103 ; Bhagwan Swarup v. State of Maharashtra A I R 1965 S C 682 ; Corpus Juris Secundum, Vol. 15-A 908; Halsbury’s Laws of England, 4th Edn., Vol. II, para. 58 ; Corpus Juris Vol., 12.543; 16 American Jurisprudence (II Edn.) page 7; Gangoli on ‘Joint Acts, Abetment and Conspiracies’ (1926) Edn. ref.

 

Majority View-[Per Anwarul Haq, C. J., Muhammad Akraw Karam Elahee Chauban and Nasim Hasan Shah, JJ.]

 

(q2) Penal Code (XLV of 1860)

 

- Ss. 120-A-Criminal conspiracy-Mode o` proof Conspiracy may be established by direct or indirect evidence such as circumstantial evidence-Evidence not to be considered in isolation as so many bits of evidence but whole of evidence to be considered together and its cumulative effect to be weighed and given effect.-[Conspiracy-Proof---Evidence].

 

Rex v. Brissac 1803 4 East 164 ; R. v. Duffield and others (1851-52) 5 Cox’s Cr. L C 404; Reg. v. Charless Steward Parnell (1877-82) 14 Cox’s C L C 503 ; Benbyendra Chandra Pandey and another v. Emperor A I R 1936 Cal. 73; Emperor v. Shafi Ahmad (1925) 31 Bom. L R 515 ; State v. Shankar Sakbaram Jadhav And another A I R 1957 Bom. 226 ; Barindra Ku6iar Ghose and others v. Emperor I L R 37 Cal. 467 ; ‘Keshabdeo Bagat v. Emperor A I R 1945 Cal. 93 ; Nadir Ali Barqa Zaidi and others v. The State of U. P. A I R 1960 All. 103 ; Manghan Khan v. Emperor A I R 193; Sind 61 ; Emperor v. King A 1 R 1929 Bom. 296 ; Amiruddin v. State t’ L D 1967 Lah.1190 ; Noor Mohd. Muhammad Yusuf Momin v. The State of Mzhaaashtra 1971 S C 43 ; Bhagwandas Keshwani etc. v. State of Rajasthan A I R 1974 S C 898 ; Woodroff’s & Amir Ali’s Law of Evidence in Ind4 10th Edn., Vol. 1, p. 124 and Phipson’s Law of Evidence, 11th Edo., p. 61 ; Cross on Evidence (p. 15), Garton v. Hunter 1969 All E L R 451 ; Robins9n Brothers (Brewers), Ltd. v. Houghton and Chester-le-street Assessment Committee 1937 All E R 208, Corpus Jaris Secundum, Vol. 15-App. 9115--916 ; Asadullah v. Mohd. Ali P L D 1971 S C 541 and Mst. Razia Begum v. Hijrayat Ali and 3 others P L D 1976 S C 44 ref.

 

(r2) Criminal Procedure Code (V of 1898)---

 

-- S. 337-Approver’s evidence-Value of-No rule of law or prudence requires entire evidence of approver either to be accepted or rejected unlike evidence of other competent witnesses-Rule of sifting grain from chaff-Adopted by Courts since long-Approver may try to understate his own involvement in crime or may even try to save some of his friends or relatives-Such weaknesses in approver’s character, however, never prevented Court from appraising his evidence in light of all corroborative circumstances brought on record-A mere wrong statement on a particular point, held, cannot call for rejection of his whole evidence.-[Approver-Evidence].

 

Asadullah v. Muhammad Ali P L D 1971 S C 541 ref.

 

(s2) Penal Code (XLV of 1860)-

 

-- S. 111-Person ordered to kill another aiming at such person in pursuance of such command but killing another person by mistake---Killing of person other than commanded, held, probable consequence of order given and case falls under mischief of S. 111 and sophisticated weapons of tremendous power having been employed agents of conspiracy at spot could not be accused of indulging in recklessness. or excessive use of violence.-[Abetment].

 

In a case where a person is ordered to kill another and in pursuance of that command he aims at him, but by mistake another person is killed, the case falls under the mischief of section 111, P. P. C. as the killing of the person other than commanded can be deemed to be a probable consequence of the order given. The killing of complainant was a task assigned by appellant ex-Prime Minister to the F. S. F., which he knew was equipped with sophisticated and automatic weapons. As a man of ordinary common sense and prudence he was also expected to know that bullets fired from rifles and automatic weapons have long ranging killing potential, and if they missed the target could hit and kill another person. Thus, when the conspiracy was to murder complainant by using the F. S. F. the danger of another person being killed as a result of a bullet fired at complainant ought to have been visualised as a probable consequence. Limited imagination cannot be pleaded as a defence. . For, a person who sets in motion a plan to murder, and his co-conspirators implement the plan and mount a murderous attack on the victim but miss him and kill a person nearby, he is responsible for the acts of his agents committee in furtherance of the conspiracy, because such a result is the probable consequence of the murderous attack. When a man conspires to murder, and in furtherance of the conspiracy an attack with automatic weapons is mounted on the parson intended to be murdered, he cannot plead that he could not visualize that the probable consequence would be that a bullet may miss the target and kill another person nearby. When sophisticated automatic weapons with tremendous power of rapid firing were to be employed in the execution of the conspiracy, the agents at the spot could not be accused of indulging in recklessness, or use of excessive violence, if they fired 30 rounds in rapid bursts on seeing complainant’s car approaching the roundabout, and then negotiating the same on its forward journey. It has to be remembered that the direction to kill did not contain any restriction that killing was not to be resorted to during the night, or that it should be done during the day, or in any particular manner. Obviously, the actual plan of execution was left to the choice of the concerned assailants, and the law recognises such situation as squarely falling within the ambit of conspiracy. If a person keeps a lion in his house and lets it loose to kill his enemy he cannot escape liability if the lion pounces upon others also. Sophisticated weapons, if one can so say in this context, are no less ferocious than a lion. If you let them loose ask some body to fire with them then you are responsible if they kill all those who come within their range or beaten-zone which naturally extends to a sufficiently wide diameter, and you cannot be heard to say that you desired only one man to be killed by an attack in that manner.

 

Betts and Ridley v. Rex 22 Cr. A. Rep. 148; Allan Bainbridge v. The Queen 43 Cr. A Rep. 194 ; Boyd v. United States 142 U S 1077; Sahib Ditta v. Emperor 20 P R 43; Po Ya r. Emperor A I R 1919 Low. Bur. 20; Foster Cr. L 372; 1 Hawk P C o, 29 s. 22 and Penal Law of India try Hari Singh Gour, 6th Edo., p. .180 ref.

 

Queen-Empress r. Mathura Das and others 6 All. 491 and Hainam Singh v. Emperor A I R 1919 Lah. 256 distinguished.

 

(t2) Penal Code (XLV of 1860)-

 

Ss. 301 & 111-Application-Section 301, held, applies only to actual killer and not to abettor-Abettors in such case governed by S. 111-As far as actual killer, Legislature considered him not competent to say that he really never intended to do so and such death was never intended by him if he caused death of a person whose death he may have neither intended nor known likely to be caused-Such fiction of law, however, not made applicable to abettors with same rigidity as applicable to actual killers-As for abettors, law laid down two conditions before their being held liable for result achieved-Liability of abettors, held, arises only when act done probable consequence of their abetment and committed under influence of instigation or with aid or in pursuance of conspiracy constituting abetment.­[Abetment-Conspiracy].

 

(u2) Criminal Procedure Code (V of 1898-

 

-- Ss. 236 & 237-Charge-Conviction for offence not charged with- Doubtful on facts alleged as to which of several offences proved facts constitute---Accused could be convicted of offence actually proved on facts of which accused may be taken to have notice during recording of evidence at trial, notwithstanding charge having not been proved in respect of - such other offence-Being a case falling within contemplation of S. 236 appellants, held, could be convicted of offence shown to have been committed although not charged with same under S. 237Facts however, to be set out in charge with sufficient particularity to enable accused to know what act or acts he is said to have done.[Charge--Conviction].

 

Emperor v. Isap Mohomed 31 Bom. 218 ; Sinnaswami Chetti v. Pannadi Palani Goundan 26 Cr. L J 1057 ; Raghu Nath v. Emperor 27 Cr. L J 152 ; Jaffar v. Idris Ali P L D 1951 Dacca 128 ; In re : Thaikkottahil Kunheen 25 Cr. L J 212 ; Tamizuddin v. Asimuddin A I R 1946 Cal. 305 ; The State v, Abed Ali P L D 1963 Dacca 806 ; Nanak Chdnd v. State of Punjab A I R 1955 S C 274 ; Surajpal v. State of Utter Pradesh P L D 1956 S C (Ind.) 21 ; Azam Ali v. Rex (1950) 51 Cr. L J 1073 ; Naruirchand v. State I P-52 Cr. L J 246 ; Muhammad Anwar v. State P L D 1956 S C (Pak.) 440 ; Cibakar bas v. Saktidhar Kabirai 54 Cal. 476; Cheda Singh v. King-Emperor A I R 1924 All. 766 ; King v. Charles John Walker A I R 1924 Bom. 450 ; Begu v. Emperor A I R 1925 P C 130 ; Ahmad Ali v. State P L D 196() Dacca 828 Amir Baksh v. State P L D 1960 Lah. 15 ; Fateh Muhammad v. State P L D 1961 Lah. 212 ; State v. Muhammad Latif P I. D 1962 Kar. 756 ; State v. Abed Ali P L D 1963 Dacca 806 and Muhammad Yaqub r. State 1971 S C M R 756 ref.

 

Minority View--[Per G. Satdar Shah, J., Muhammqd Haleem, J., agreeing].

 

(1u2) Criminal Procedure Cede (V of 1898)-

 

-- Ss. 236 & 237-Charge-Application of S. 237 arises only when due t-- a single act or series of acts doubtful as to which of several offences accused may be charged with-Court if upon facts of case in no manner of doubt in such behalf, reliance cannot be made on provision of S. 237-Right from lodging F. I. R. regarding incident of murder of complainant’s father prosecution knowing appellant Z having master minded plan of assassinating complainant-Notwithstanding such position no charge framed against accused appellant Z under S. 111, P. P. C. and case proceeding under S. 109, P. P. C.-Prosecution and trial Court being in no doubt of appellant Z having abetted approver M in respect of assassination of complainant yet his father having been killed in execution of plan---High Court in circumstances could not have entertained any doubt regarding offence committed by appellant B squarely falling within four corners of S. 111, P. P. C. and not S. 109-Case, held, not covered by S. 236 and High Court under S. 237 could not have recorded said appellant’s conviction under S. 111, P. P. C. nor would Supreme Court have jurisdiction to uphold such finding, jurisdiction of both Courts being co-extensive in such behalf Penal Code (XLV of 1860), Ss. 111 & 109.--[Charge-Abetment].

 

Jaifar and others v. ldris Ali P L D 1951 Dacca 128 ; Muhammad Anwar and another v. The State P L D 1956 S C (Pak.) 440 ; Surajpal r. State of Utter Pradesh P L D 1956 S C (Ind.) 21 ; Amir Bakhsh v. .The State P L D 1960 Lah. 15 ; The State v. Mian Muhammad Latif and others P L D 1962 Kar. 756 ; The State v. Abed Ali P L D 1963 Dacca 806 ; King-Emperor v. Charles John Walker A I R 1924 Bom. 450 ; Nanak Chand v. State of Punjab A I R 1955 S C 274 ; Narvirchand and others v. State A I R 1952 Madh. Bha. 17 ; Dhum Singh v. Emperor 26 Cr. L J 1057 ; Raghunath Kandu v. Emperor 27 Cr. L J 152 (All.) ; Jehanzeb Khan v. State P L D 1963 Pesh. 145 ; Hunmant Rao v. Emperor A I R 1925 P C 1 n0 ; Nanak Chand v. State of Punjab A 1 R 1955 S C 274 and Begu and others v. Emperor A I R 192$ P C 130 ref.

 

Majority View- --[Per Anwaral Hsq, C. J.. Muhammad Akrant, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.].

 

(v2) Criminal Procedure Code (V of 1898)-

 

-- Ss. 236 & 237---Churge--Conviction for offence not mentioned in charge-Accusations made in charge set out in form of separate allegations and all ingredients necessary to bring home charge of murder punishable under S. 302 read with Ss. 109 & 111 brought to accused’s notice--Contention that accused was not told, or that he was not charged with specific allegation of murder having been “probable consequence” of his aiding and abetment and he was also liable under S. 111, P. P. C. held, misconceived.

 

Ranghunath v. Emperor 27 Cr. L J 152 distinguished.

 

(w2) Criminal trial- ,

 

-- Bias in Judge-Effect-Trial Bench consisting of five Judges of High Court-Allegations of bias levelled by one accused confined almost exclusively against Acting Chief Justice-Other four Judges constituting Bench independent and capable enough to deliver their own impartial judgment free from any bias or prejudice-Judgment of Bench, in circumstances, held, could not be said to have been tainted--Even otherwise allegations, held, made with ulterior design to make trial a mockery in slanderous abuse of law to shake confidence of public in judiciary and without substance, consequently of no avail,-[Bias].

 

Minority View-[Per Dorab Patel, J.]

 

(1w2) Criminal trial-

 

-- Litigant can file transfer application on ground of bias provided he does not scandalize Court or malign it unnecessarily or falsely---Filing transfer application, scandalizing Judges however different from transfer application filed in manner prescribed in cases reported as M. H. Khandkar v. State, P L D 1966 S C 140 and Yuaf Ali Khan v: State P L D 1977 S C 482.-[Bias-Transfer of criminal cases].

 

Majority View-[Per AnffArul llaq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim flaaan Shah, JJ.]

 

(x2) Criminal Procedure Code (V of 1898) -

 

-- S. 526(3)(6)  Transfer of criminal cases-High Court authorised to transfer, on. its own initiative, a criminal case from one subordinate Court to another or to itself in its administrative capacity requiring no notice to parties.-[Transfer of criminal cases].

 

(y2) Judicial Proceedings--

 

---.- Party represented by counsel-Not authorised to address Court as a matter of right without permission of Court.-[Counsel and client].

 

(z2) Court room-----

 

-- Provision of docks-Purpose of providing docks in Courts-Not to humiliate accused but to protect and segregate them for safe and better administration of justice without interference-High Court seized of case having no dock, dock installed for segregating accused and such necessity proving genuine by fact of very great interest being shown by - public in case, bona fides of Court in installing dock, held, not open to question and no complaint having ever been brought to Court’s notice allegations of appiam having not been able to communicate with his counsel not correct.

 

(a3) Criminal Procedure Code.(V of 1898)-..

 

S. 265-M-Court empowered to regulate time of holding its sitting.

 

Majority View.-[Per Anwarnl flag C. J., Muhammad Akram, Karam Elahee Choahan, Nasim Hasan Shah, JJ. (Dorab Patel, J. agreeing)].

 

(b3) Court observations-

 

-- Observation in judgment stating appellant to be a “muslim in name” only-Held, not necessary for disposal of case--Contention, however, that such observations and remarks about appellant disclosed extreme hostility and bias entertained on part of trial Bench against appellant not correct-High Court having found appellant guilty alongwith other co-accused on merits of evidence its findings not influenced by any such extraneous considerations and in fact discussion on point occurring towards end of judgment and conclusion drawn in proposing deterrent punishment-Observations even though not strictly relevant even for limited purpose of inflicting deterrent punishment yet did not thereby vitiate order of conviction.- [Judgment-Conviction].

 

Majority View--[Per Anearul Ilaq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.]

 

(c3) Court observations-

 

----- Use of words “principal accused” in judgment in referring to aphellwnt Z-Appellant Z alone having motive behind attempted murder on findings recorded by trial Bench, appellant also being principal amongst co-conspirators having regard to his status in life, description of appellant as principal accused, held, not inapt and not by itself sufficient to betray bias and prejudice of Court against him.[Accused-Prejudice--Bias].

 

(d3) Criminal trial-.

 

Bias--Prejudice-Mere suspicion of bias, even if not unreasonable, not sufficient to render a decision void-Real likelihood of bias to he established---Mere apprehension in mind of litigant of likelihood of his not getting justice, such as based on inferences from circumstances, held, not sufficient.-[Accused--Bias-..Prejudice].

 

Syed Akhlaque Hussain v. Pakistan P L D 1969 S C ?01 ; The President v. Mr. Justice Shaukat Ali P L D 1971 $ C 585 ; Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1976 S C 57 ; Khairdi Khan v. Crown P L D 1953 F C 223 ; M. H. Khondkar v. The State P L D 1966 S C 140 and Muhammad Ismail Chaudhary v. Abdul Khaliq P L D 1960 S C 301 ref.

 

Anwar v. Crown P L D 1955 F C 185 held not correctly decided.

 

(e3) Penal Code (XLV of 1860)-

 

--- Ss. 302/109/120-B etc.--[Murder-case]--Voluntariness of confession-Appreciation of evidence-Letter written . several months after recording confession of accused recommending some job for brother of a confessing accused-Held, hardly a ground for inducing appellant to make a confession or to stick to same.----Father persuading his son to keep on sticking to his confession likely to lead him to gallows in consideration for a petty job for another son-Odd in view of natural course of human conduct-Even otherwise; reiteration of confessions by all confessing accused could not have been due to offer of a petty job to a brother of one confessing accused.--[Confession-Evidence].

 

Minority view-[Per Dorab Patel, J.]

 

(e3) Penal Code (XLV of 1960)-

 

Ss. 3021109/120-B etc.-Approver confessing his guilt in a most heinous crime-Evidence of approver not to be accepted without strong corroboration.-[Approver-Evidence].

 

Monir’s Law of Evidence (Pakistan Edn.), p. 1427 ; Regina v. Farler 8 C A R & P 107; Reg v. Budhu Nanku and others I L R 1 Born. 475 ; Queen. Empress v. Bepin Biswas and others I L R 10 Cal. 970 ; Shankarshet Ramshet Uravane v. Emperor A I R 1933 Bom. 482 ; Maagal Singh v. Emperor A I R 1934 Lah. 346 ; Ishaq v. Crown P L D 1954 F C 335 ; Abdul Khaliq v. State P L LJ’ 1970 S C 166 ; Abdul Majid and another v. State P L D 1973 S C 595; Cihulam Qadir v. The State P L D 1959 S C (Pak.) 377 ; Major E. G. Barsay v. State of Bombay A I R 1961 S C 1762 ; Ambica Charan Roy and others v. Emperor A I R 1931 Cal. 697 ; Nga Aung Pe. v. Emperor A I R 19.2.7 Rang. 209 and Ramzan Ali v. State P L D 1967 S C 545 ref.

 

(2e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Prosecution not giving reasons for prolonged detention of approver, a highly placed Government servant, inference to be drawn of charges of very serious nature having been levelled against him by detaining authority (Martial Law authorities)-Approver, hence, under strongest possible temptation to give false evidence in order to please investigating agency.-[Approver].

 

Abdul Qadir v. State P L D 1956 S C (Pak.) 407 ref.

 

(3e3) Penal Code (XLV of 1860)-

 

 Ss. 302/109/120-B etc.-Approver cannot corroborate himself---Trial Court, held, erred in accepting approver G’s evidence in respect of bullets bearing lot No. 661/71 having been issued only to Federal Security Force.-[Approver].

 

(4e3) Penal Code (XLV of 1860)-

 

---Ss. 302/109/120-B etc.-Complainant’s rejoining appellant Z’s party casting doubt;, on his evidence about reasons for his suspicion of Z being murderer of his father-Element of hatred in complainants relationship with Z being on ascendant when complainant gave evidence in trial Court, complainant, held, cannot be described as a disinterested witness.-[Witness].

 

(5e3) Penal Code (XLV of 1860)-

 

--- Ss. 302/109/120-B etc.-Complaints registered all over country for attacks on complainant but no documentary evidence showing Z having been implicated in such complaints-Absurd, held, in such , background of hatred and enmity against complainant to contend National Assembly incident having given Z a motive to murder complainant.-[Motive].

 

(6e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Politicians abuse each other in very offensive language without taking it to heart-Seasoned parliamentarian tolerate criticism seemingly absolutely intolerable and offensive to persons in other walks of life-Appellant Z being a seasoned politician, held, could not have a motive for killing complainant merely for reason of having criticised him violently.-[Motive].

 

Niharendu Dutt Majumdar v. Emperor A I R 1942 F C 22 and 4li Hussain Jamali v. Government of Sind P L D 1974 Kar. 283 ref.

 

(7e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Documentary evidence disclosing weapons of same calibre being available in frontier region and having been supplied by Ammunition Depot to Frontier Corps and to Army Units also, exclusive possession of Federal Secuaity Force, held, not to be inferred.

 

(8e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Evidence produced by prosecution appearing impressive because of number of witnesses examined and documents produced but, held, not sufficient to prove guilt of appellants Z and A.-[Evidence-Proof],

 

Minority view-[Per G. Safdar Shah, J., Muhammad Halecm, J, agreeing].

 

(9e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Complainant in his F. I. Rs. and statement recorded in connection with incident at station I not mentioning name of appellant Z nor even attending to fact of such appellant having engineered such attacks-Complainant in F. I. R. relating to incident at L though mentioning name of appellant Z yet such document to be scrutinized with caution--Scrutiny of F. I. R. revealing attack having been made due to political reasons, for stoutly opposing Government policies and for being virulent critic of appellant Z and having been threatened by Z on floor of Assembly-Appellant Z held, could not be said to have been directly named in F. 1. R. and complainant only expressed his opinion or suspicion of attack having been perhaps made on him at behest of appellant Z and not that Z alone was accused by complainant.

 

(10e3) Penal Code (XLV of 1860)--

 

-.- Ss. 302/109/120-B etc.-Complainant appearing to be highly sensitive in nature capable of taking strong stand on issues even at risk of danger to his person and possessing inconsiderable courage to forcefully express his views, not possible, held, to believe his having reconciled with or failed to accuse appellant 7. if appellant had anything to do with murder of his father or had engineered various attacks on him.

 

(11e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Prosecution having been able to lay its hands on and actually relied upon direct and express evidence of Approver M, constituting conspiracy-Falling back upon circumstantial evidence, held, not permissible.-[Evidence].

 

(12e3) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Canvassing high probabilities in a case against accused-Held, can never be a ground to hold him guilty.[Evidence].

 

Woolmington v. D. P. P. 1935 A C 462 ; Brij Bhushan Singh v. Emperor A I R 1946 - P C 38 ; Safdar Ali v. State P L D 1953 F C 93 ; Muhammad Luqman v. State P L D 1970 S C 10 ; Fazlul Quadir Chaudhary v. Crown P L D 1952 F C 19 ; Sarwan Singh v. State of Punjab P L D 1957 S C (Ind) 555 and Ramzan Ali v. State PLD 1967 S C  545 ref.

 

(13 e 3 ) Penal Code (XLV of 1860)

 

--Ss. 302/109/120-B etc.-Evidence of main approver either unnatural and improbable and not having ring of truth about it but also full of omissions, contradictions and improvements hence not to be relied upon: [Evidence-Approver].

 

(14 e 3) Penal Code (XLV of 1860)-

 

Ss. 302;109/120-B etc.-Confessional and approver’s statements-Not only contradicting themselves but also each other on crucial and material points-Statements not only of no use against appellant Z, not only because of being untrue, but also because they could only be taken into consideration against said appellant under S. 30, Evidence Act-Such statements could be relevant only if independent evidence existed to connect appellant Z with commission of crime-No such independent evidence existing, confessional. statements, held, have to be disregarded.-[Confession-Approver].

 

Joygun Bibi v. State P L D 1960 S C 313 ; Ibrahim and another v. State P L D 1963 Kar. 739 ; Shera and 3 others v. State P L D 1972 Lah. 563 ; Kashmira Singh v. State of Madhya Pradesh A I R 1952 S C 159 ; and L. S. Raju and others v. State of Mysore A I R 1953 Bom. 297 ref.

 

Majority View-[Per Anwarul Haq, C. J., Muhammad Aram, Karam Elahee Chauhan and Nasim Hasan Shah, JJJ

 

(f 3) Penal Code (XLV of 1860)-

 

--Ss. 302/109/120-B etc.-Sentence-Mitigation-Appellant a former Prime Minister, using apparatus of Government, viz., agency of Federal Security Force, for a political vendetta, a diabolic misuse of instruments of State power-Prime Minister’s powers used to stifle investigation and later to pressurise complainant in rejoining his political party-No extenuating circumstances, held, spelt out in circumstances and High Court rightly inflicted normal penalty sanctioned by law.-[Sentence].

 

(g 3) Expunging of remarks in Judgments-

 

--Remarks in judgments in nature of a theoretical exposition of duties and conduct prescribed for a ruler by Islam and observations as to abuse of constitution by appellant-Not necessary for disposal of case-Subject not forming part of trial nor High Court having been inquiring into question whether appellant a good Muslim or a muslim only in name -Remarks expunged-Certain other paragraphs of judgment as could safely be deleted without in any manner affecting its integrity, meaning, and logical sequence also expunged.

 

(h 3) Penal Code (XLV of 1860)-

 

S. 94-Offence committed under threats-Only threat mentioned by appellant being approver M’s telling him that if he did not fall in line he would find himself on road-Such, held, did not mean a threat of instant death ; at best it could mean removal from service-Benefit of S. 94-Not available in circumstances.

 

(i 3) Penal Code (XLV of 1860)-

 

Ss. 302/109/120-B etc.-Sentence-Mitigation-Appellant 65 years of age and possibly suffering from heart disease-Appellant A in spite of his experience and maturity, however, easily falling in line with conspiracy to assassinate complainant and taking special steps over a prolonged period towards its implementation-Appellant a willing instrument in carrying out conspiracy and directly supervising its execution-Appellant, held, deserved no lenient treatment in matter of sentence in circumstances and legal sentence imposed by High Court maintained.-[Sentence].

 

Bodhi alias Faqir Hussain and 2 others v. The State P L D 1976 Lah. 1418 and M. Siddique Kharal v. Pakistan through the Secretary to the Government of Pakistan, Cabinet Secretariat P L D 1977 Kar. 1044 ref.

 

( j 3) Federal Security Force Act (XL of 1973)---

 

S. 22 read with Ss. 9 & 12 and Penal Code (XLV of 1860), Ss. 76 & 94-Contention that employees of Federal Security Force being bound by their oath to obey all orders of their superiors and bound in allegiance to President by name (appellant Z) and having been made to do unlawful acts under coercion and threats of physical violence besides having been brainwashed, appellants employees of such force could not be guilty of offence charged with-No such oath as alleged found on records-Form of affirmation as set out in Schedule II of Act however obliging members of Force to observe and obey all commands of any officer even to peril of life-Qualifying phrase “lawful” though not used in such form of affirmation as done in Police Rules (Punjab) r.12.28, yet absence of adjective “Lawful” made no difference for reason of S. 9 of Act having laid down : “It shall be the duty of every officer or member of the Force promptly to obey and to execute all orders and warrants lawfully issued to him by any competent authority”-Same word “Lawful” also used in Ss. 12 & 13 of Act-Obligation, held, did not extend to execution of unlawful orders either under Act or under Penal Code, 1860-Punjab Police Rules, 1934, r. 12.28.--[Interpretation of statutes].

 

Niamat Khan and others v. The Empress 1883 P R 17; Queen-Empress v. Latif Khan I L R 20 Born. 394 ; Allahrakhio and another v. Crown A I R 1924 Sind 33 ref.

 

Minority view-[Per Dorab Patel, J.]

 

(1 j 3) Federal Security Force Act (XL of 1973)-

 

-- S. 22 read with Ss. 9 & 12 and Penal Code (XLV of 1860), Ss. 76 & 94-Confessions of three accused appellants being genuine and voluntary, their appeals liable to be dismissed-No case of leniency in punishment, held, made out.-[Confession-Sentence].

 

(k3) Criminal trial-

 

 Consent-Proof-Questions of inferring consent from approver’s subsequent conduct-Can arise only when approver invited to join conspiracy.-[Consent-Proof-Approver].

 

(l3) Criminal trial-

 

--Arms Expert-Delay in forwarding empties to Arms Expert---Relevant only when weapon of attack’ also’ sent with empties-Sten-guns allegedly used in attack not sent to Arms Expert-Nothing, held, turns on delay in forwarding empties for examination-Even otherwise nothing shown for police having used such delay in fabricating evidence, nothing held, turned on delay.-[Delay].

 

Noor Alam v. The State P L D 1978 S C 137 ref.

 

(m3) Evidence-

 

Hearsay evidence-Admissibility-Hearsay evidence does not become admissible merely because of its having been given in answer to a question put in cross-examination.

 

(n3) Motive-

 

Corroboration-Corroboration of evidence of accomplice-Cannot be had by motive itself-Motive can only be a weak link in chain of corroborative evidence.-[Accomplice-Evidence].

 

Jit Singh v. Emperor A I R 1925 Lah. 526 ; Jiwan Singh v. Emperor A I R 1934 Lah. 23 and Kartar Singh v. Emperor A I R 1936 Lah. 400 ref.

 

Abdur Rashid v. Umid Ali P L D 1975 S C 227 and Mst. Razia Begum v. Hurayat Ali P L D 1976 S C 44 distinguished.

 

(o3) Criminal trial-

 

-Cross-examination at wrong stage-Counsel cross-examining approvers on allegation of appellant Z having ordered assassination of politicans criticising him-Manner of conduct of some cross-examination however totally illegal-Counsel sometimes permitted to cross-examine after appellant’s counsel completed his cross-examina­tion-Such part of evidence of witness, held, had to be ruled out and after its being ruled out no evidence left to show appellant Z having ordered assassination of his critics.-[Cross-examination].

 

(p3) Criminal trial -

 

-- Appreciation of evidence-Appellant Z not named as assailant in F. I. R.-Complainant only pointing finger of suspicion against appellant-Suspicion if not justified, nothing would turn upon its being lodged promptly but on other hand might mean complainant having had no time to consider whether his suspicion could bear scrutiny of reason-As far as earlier incident complainant not even pointing finger of suspicion, at appellant Z-Contention raised by appellant’s counsel regarding complainant having made a statement to police voicing his suspicion against sycophants of appellant Z and against his old local enemy--Held, not inconsistent with complainant’s speech in Assembly.-[Evidence].

 

(q3) Criminal trial-

 

-- Appreciation of evidence-Submission that complainant’s conduct in joining appellant Z’s political party after his father’s murder falsified his evidence and proved his having falsely levelled allegations against appellant Z for murder-Held, correct-No person with any self respect would join or rejoin a party headed by his father’s murderer.-]Evidence].

 

(r3) Criminal trial-

 

Appreciation of evidence-Complainant after rejoining appellant Z’s party going round country propagating thoughts of appellant Z, complainant, held, voluntarily rejoined Z’s party due to having realised his suspicions against Z being not well-founded for reasons of his having many other enemies.-[Evidence].

 

(s3) Criminal trial-

 

-- Appreciation of evidence-Evidence of accomplice not being acceptable without corroboration and talk of appellant Z with him to keep Federal Security Force out being not supported by any evidence and approver having been detained for some months under Martial Law (more than a hundred files about him having been seized and one or more investigations being conducted into his activities)---Circumstances held, reacted against veracity of approver.--[Evidence---Accomplice--- Approver].

 

(t3) Criminal Procedure Code (V of 1898)-

 

-- S. 161-Statements under S. 161-Do not have to record minor details of a witness’s evidence---Police Officer however has to record every material particular of a witness’s statement-Such not being done, prosecution must suffer-Material omissions in Police statements, held, cannot be explained away on ground of such statements being recorded hurriedly.-[Witness].

 

(u3) Criminal trial-

 

.-- Appreciation of evidence-Complainant having a motive for taking revenge, having been heard hurling threats against appellant Z, obvious and simple explanation of inquiry about complainants’s gunman could be fear of Police Officers lest complainant might implement his threats through his gunman.--[Evidence].

 

(v3) Criminal trial-

 

Appreciation of evidence-Surveillance against all and sundry being order of day, surveillance of complainant, held, could not mean its having been done to murder him.-[Evidence].

 

(w3) Criminal trial-

 

- Inquiry Tribunal’s reports-Appreciation of evidence--Judicial notice could be taken of fact of reports of tribunals of inquiries being not published-Prosecution’s allegation of prevention of Chief Minister from publishing report by Prime Minister Z, Chief Minister having been mentioned in calendar of prosecution witnesses, failure to examine him, negatives plea advanced by prosecution--Refusal to examine witness on ground of his having turned hostile--Held, not at all acceptable in view of such witness having been convicted under Defence of Pakistan Rules during appellant Z’s regime.-[Evidence-Judicial notice-Witness].

 

(x3) Criminal trial--

 

.-- Appreciation of evidence-Complainant not able to give a clear idea of manner of firing -Complainant’s mother and aunt in a better position to describe manner of firing yet such two ladies not examined by prosecution nor any explanation giver. for not examining them-Evidence on point, held, not conclusive:-[Evidence--Witness].

 

(y3) Criminal trill-

 

--- Appreciation of evidence-Fact of reports on progress of investigations in murder cases being regularly put up to appellant Z -Gives no rise to adverse inference-Any one in murder case, held, would follow progress of case with utmost interest 2nd obtain information.-Evidence.

 

(z3) Criminal Procedure Code (V of 1898)--

 

-- S. 423-Criminal appeal admitted to regular hearing-Could not be withdrawn-Appeal admitted can be dismissed only after perusing record of case and on Court being satisfied of conviction of appellant having been made according to law.--Appeal (criminal)].

 

King-Emperor v. Dahu Raut A 1 R 1935 P C 89 and Ishar Das v. Nur Din A I R 1942 Lah. 298 ref.

 

(a4) Criminal Procedure Caste (V of 1898)--- .

 

---- S. 5:57’--irregularities occasioning failure of justice-Conviction, held, can be quashed on ground of such irregularities.

 

Minority View-[Per Mohammad Haleem, J.]

 

(b4) Criminal trial-

 

-- Appreciation of evidence-Evidence of approver, held, suffering from inherent weaknesses but tending to show his being a man of conscience which conduct wholly; unnatural in background of facts elicited in his evidence-Overall examination of evidence of approver M-Not of such quality as to call for reliance--Approver, hence not reliable[Evidence-Approver].

 

(c4) Criminal trial-

 

Omissions and improvements -- Omissions and improvements in evidence of approver M-Vitally affect truth---fullness of approver and their resolution by High Court in favour of prosecution gave illusory value to his evidence-Such course, held, wholly unjustified-Benefit of doubt in evidence, held further, must in law go to accused.-[Benefit of doubt-Evidence-Approver].

 

(d4) Penal Code (XLV of 1860)-.

 

Ss. 302/109/1120-B etc.-Appreciation of evidence-Approver M must have been aware of incident at station 1-Approver’s reply on crossexamination that he had a hunch of it, held, hardly inspires his role as an approver -Difficult to believe his being apprehensive of his life while receiving all favours from appellant Z-Explanation resting on apprehension, held further, tailored to justify his reaction to direction to kill complainant and such appearing to be a padding.-[Evidence Approver].

 

(e4) Penal Code EXLV of 1860)-

 

- Ss. 302(109/120-B etc.-Appreciation of evidence-Approver M’s evidence unnatural, lacking guarantee to inspire confidence-Approver while giving evidence appearing sitting on fence, trying to minimise his role-Such conduct not ordinary conduct of approvers-Evidence of approver not appealing to wisdom and not worthy of belief-Case of conspiracy as such, held, demolished-Corroborative. evidence in respect of such approver’s testimony being inconclusive and failing to lend assurance to his lpse dixit.-[Evidence-Approver--Conspiracy].

 

(f4) Criminal trial-

 

Appreciation of evidence-Evidence though to be read as a whole yet, held, each piece of evidence to be free from doubt before such evidence could be taken into consideration.-[Evidence].

 

[Per G. Satdar Shah, J., Muhammad Haleem, J. agreeing]

 

(g4) Circumstantial evidence,-

 

-- Merits and demerits.

 

Like most things, circumstantial evidence held has its merits and demerits Circumstantial evidence has been commented upon thus:----

 

“When circumstances connect themselves with each other, when they form a large and a strong body, so as to carry conviction to the minds of a jury, it maybe proof of a more satisfactory sort than that which is direct. So where the proof arises from the irresistible force of a number of circumstances, which we cannot conceive to be fraudulently brought together to bear upon one point, that is less fallible than under some circumstances direct evidence may be.”

 

Sir Afred Will’s Circumstantial Evidence. pp. 46-47; Law of Evidence by Monir, 1974 Edition, Vol. I, p. 23 and Lal Shah v. The State 1970 S C M R 743 ref.

 

(h4) Evidence Act (I of 1972)-

 

-- S. 65(c)-Secondary evidence-Propel application made for production of original document from custody of Government and said document stated by State Counsel to be not traceable--Case, held, clearly made out for production of copy of said document.-[Evidence].

 

(l4) Penal Code (XLV of 1860)-

 

-- Ss. 302/109/120-B etc.-Appreciation of evidence-Complainant anxious to reconcile his differences with appellant Z but not Z, he having consistently spurned complainant’s advances-Prosecution stand, held, not justified-[Evidence].

 

(j4) Penal Code (XLV of 1860)-

 

-- Ss. 302/109 etc.-Appreciation of evidence-Object to keep a watch on activities of complainant-To prevent him from getting in touch with insurgents or to create a law and order situation in country--Prosecution stand, held, not justified-[Evidence].

 

(k4) Criminal trial-

 

-- Proof-Failure to assert a fact when natural to assert it-Held: Amounts in effect to assertion of non-existence of fact.-[Proof]

 

Abdul Hashem v. State 1969 P Cr. L J 491 ; Ekabbar Ali and others v. State 1971 P Cr. L J 275 ; Hazara Singh and others v. Emperor A I R 1928 Lah. 257; Ram Bali and others v. State A I R 1952 All. 289 and Parikhit Thapa v. Nidhi Thapa and others A I R 1954 Orisa 31 ref.

 

Balmukand v. Emperor A I R 1915 Lah. 16; Badri Chaudhary and others v. King-Emperor A I R 1926 Pat. 20; Iltaf Khan v. Emperor A I R 1926 Pat. 362; In re : Guruva Vannan A I R 1944 Mad. 385; Abdul Monsur Ahmad and another v. The State P L D 1961 Dacca 753 and Wigmore on Law of Evidence, 1970 Edition, p. 154 distinguished.

 

(l4) Penal Code (XLV of 1860)--

 

- S. 120-B-Conspiracy-Proof-Conspiracy-Relevant time: When conspirators engaged themselves to do a particular thing which alone, held could throw light as to state of a man’s mind and to make probable consequence foreseeable.-[Proof].

 

(m4) Penal Code (XLV of 1860)-

 

S.302/109/120-B etc. -Appreciation of evidence--Abettor cannot be held guilty unless result likely to follow or expected to follow from act abetted and as such foreseeable-Appellant Z allegedly having told approver M of his predecessor having already been given direction to get rid of complainant and his further asking him to tell Director Operations to get on with job and produce dead body of complainant or his body bandaged all over-Appellant Z, held, could not in circumstances have foreseen death of complainant’s father as a probable consequence of immediate object of conspiracy.-[Evidence-Abetment].

 

(n4) Penal Code (XLV of 1860) -

 

-- Ss. 109 & i 11-Difference stated.

 

Unlike the proviso to section 111, P. P. C. in which the expressions “probable consequence of the abetment” and “the act done or committed under the influence of the instigation or with the aid or in pursuance of the conspiracy which constituted the abetment” appear, and will have to be given their proper meaning, there is no such requirement in section 109,P. P. C. Furthermore, section 109, P. P. C. is obviously a residuary section whereas section 111, P. P. C. is a special section applicable only to the facts of the case of present kind. Section 109, P. P. C. from its language contemplates the abetted act to have been completed that is, if murder instigated and the victim is killed, only then it provides for the punishment of such an abetment but only when there is no other specific provision in this behalf; whereas section 111 deals with the different act having been committed as a probable consequence of abetment. The different act in section 111 would include an offence under section 301, P. P. C. or for that matter any other section of the Penal Code. The distinction thus is apparent between the two sections. In one the abetted act is completed and in the other a different act is committed as a probable consequence of abetment; and where the Code provides a specific Penal provision for dealing with a situation where a different act is committed, w section 109 will have no application; for, that is a residuary provision. It is section 111 which will be applicable. Accordingly, it is idle to contend that the abettor can be convicted under section 301 read with section 109, P. P. C.

 

(o4) Criminal Procedure Code (V of 1898)-

 

Ss. 236 & 237 read with Penal Code (XLV of 1860), Ss. 301, 302, 109 & 111-High Court by framing charge against appellant Z under S. 302 read with Ss. 301 & 109. putting him on notice of his not being charged for an offence under S. 11 I-Contention, in circumstances, held, could not be advanced that appellant ought to have taken notice of fact of High Court might perhaps convicting him under S. 111 especially when neither prosecution nor High Court conscious of such position even inferentially.-[Charge].

 

Muhammad Latif v. State P L,D 1966 S C 201 ref.

 

(p4) Criminal Procedure Code (V of 1898)-

 

S. 537 read with Penal Code (XLV of 1860), Ss. 109 & 111-Offence under S. 109, P. P. C.-Entirely different from one covered by S. 111, P. P. C.-Appellant Z having not been charged under S. 111, trial Court cannot be said to have committed any irregularity liable to be cured under S. 535 or 537-Although even an illegality committed during trial curable in view of amended S. 537 yet effect of section could not be stretched to limits of absurdity and unreasonableness and set provisions of Cr. P. C. at naught.

 

(q4) Criminal trial-

 

Cross-examination-Illegality of-Grant of permission to counsel of an accused to cross-examine certain prosecution witnesses after their cross-examination having been already concludes by other side--Held, illegal, more so when damaging material brought on record by such method and used against some accused to their prejudice.­[Cross-examination-Prejudice].

 

Motiram Narwari v. Lalit Mohan Ghose A I R 1920 Pat. 94; Haji

 

Bibi v. H. H. Sir Sultan Mahomed 32 I L R 599; Kirmany & Sons v. Agha Ali Akbar A I R 1928 Mad. 919 and Muniappan v. State of Madras A I R 1961 S C 175 ref.

 

(r4) Evidence Act (I of 1872)-

 

S. 3-So-called confessional statement of appellant A-Wholly exculpatory in nature hence not a confession at all-Confession having been retracted in trial Court of no use whatsoever-Statement filed from Jail fully implicating himself in commission of crime-Held, in admissible in evidence against appellant Z due to its being no evidence under S. 3. Evidence Act 1872 and not being put to said appellant to afford him opportunity to explain his position. Criminal Procedure Code (V of 1898), S. 342-[Confession-Evidence.]

 

William Cooper v. Emperor A I R 1930 Bom. 354: Maadec Prasad v. King-Emperor A I R 1923 All. 322; Mt. Sumitra v. Emperor A I R 1940 Nag. 287 and Tahsimiddin Ahmad v. Emperor A I R 1940 Cal. 250 ref.

 

(s4) Criminal trial--

 

-.-- Admission of accused-Conviction-Examination of all evidence on record leading Court to conclude prosecution having not been able to prove its case beyond reasonable doubt-Held. Dangerous is such eventuality to convict accused on basis of his own plea of guilty especially in a murder case, accused being held not to plead guilty to section of Penal Code but to facts of case constituting ingredients of offence.-[Admission-Conviction-Plea of guilty].

 

H. Paryathamma Hiremath v.’ State of Mysore A I R 1966 Mys. 125;

 

State of Mysore v. Bantra Kunjanna A I R 1960 M ys. 177; In re: U. R: Ramaswami A I R 1954 Mad. 1010 ; Woolmington v. The Director of Public Prosecutions 1935 A C 462; Brij Bhushan Singh v. Emperor A I R 1946 P C 38; Safdar Ali v. The Crown P L D 1953 F C 93; Muhammad Luqman v. State P L D 1970 S C 10; Fazlul-Quader Choudbury v. Crown P L D 1952 F C 19; Sarwan Singh Rattan Singh v. State of Punjab P L D 1957 S C (Ind), 555; Ramzan Ali v. The State P L D1967 S C 545 and Show Moni Shaw v. The State A I R 1953 Cal. 634 ref.

 

Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chauhan send Nasim Hasan Shah, JJ.]

 

[Dorab Patel, Muhammad Haleem and G. Safdar Shah, JJ. not agreeing and holding appellants Z and A not guilty bat agreeing a’ to guilt of other appellants].

 

(t4) Penal Code (XLV of 1860)-

 

Ss. 302/109/120-B etc.-[Murder-case]-Appreciation of evidence----By and .large trial held substantially according. to provisions of Criminal Procedure Code, 1898 ---- Any omissions, errors, or irregularities, or even illegalities likely to have crept in - Either immaterial, or explainable and of such nature as to vitiate trial and certainly curable under 5.537, Criminal Procedure Code, 1898Allegations of bias against presiding Judge of Bench and criticism of actions and orders made by Bench-Not justified-Trial Bench doing its best to conduct trial as fairly as possible in circumstances then prevailing-Oral and documentary evidence establishing beyond reasonable doubt (i) motive on part of appellant Z alone to do away with complainant ; (ii) absence of any such motive on part of any other accused; motive for murder not shown on part of any other accused besides Z despite lengthy cross-examination of prosecution witnesses nor shown to be with any other person in spite of Prime---Minister’s Chief Security Officer’s directions to Investigating Officer to examine every possible motive for murder; (iii) appellant Z’s entering into conspiracy with approver M, Director-General of Federal Security Force. to get complainant eliminated through agency of Federal Security Force ; exact direction given by appellant Z to approver to produce dead body of complainant or his body bandaged all over ; (iv) despite his protest at first against carrying out of such task subsequent conduct of approver M showing his having become a voluntary participant in design to eliminate complainant and for such purpose inducing appellant A into conspiracy; (v) induction by appellant A of approvers GH as well as GM, XII and RI directing them to assist QN in task and also giving of instructions by appellant A to witnesses AB and I’A for supply of arms and ammunition .to GH and GM for such purpose ; (vi) selection of GH specially made for such purpose due to his being a Commando Instructor in Army for 14 years and having demonstrated his capabilities by running a Commando course for Federal Security Force under direct supervision of appellant A and his having been given rapid promotions from A. S.1. to S. 1. and then to Inspector in less than a year ; (vii) making of an abortive attack on complainant on an earlier date at another station in pursuance of such conspiracy ; (viii) recovery of crime empties of type in use with units of Federal Security Force in connection with inquiry made on making of F. I. R. by complainant and filing case as untraced despite complainant (a member of National Assembly) having tabled a privilege motion in National Assembly ; (ix) appellant Z’s further instructions to approver M when at station Q to take care of complainant during latter’s proposed visit to Q and approver M’s giving instructions to the local Director W ; (x) existence of conspiracy to get complainant killed during his visit to station Q but escape of complainant due to W having not played assigned game supported by documentary and oral evidence ; (xi) shifting of scene of activities to station L : whole plan again masterminded by appellant A through approver GH etc. ; launching of attack on complainant’s car when returning home alongwith his father and others after attending a marriage ceremony; (xi!) firing of 30 rounds from automatic weapons at a carefully selected road junction resulting in complainant’s father being hit and killed ; (xiii) actual attack made by appellants AI and RI after finalisation of plan by consultation among approver G and appellants GM, Al and R1; (xiv) complainant immediately making F. I. R. clearly stating attack being launched on him as a result of political differences ; (xv) calibre of 24 empties recovered from scene of crime showing them of 7.62 mm. bore and having same marking of 661171 as crime empties recovered at earlier incident from station I ; (xvi) investigation not making any headway : (xvii) tribunal of inquiry appointed but its report not allowed to he puMsbed by appellant Z ; original report of tribunal not traced but a letter written by (`.h:°f Minister to appellant Z (Prime Minister) giving gist of conclusions and findings of tribunal and also directions given by tribunal far further investigation ; filing of case :.r. untraced ; (Xyiii) complaints continued clamour for justice and demand of appellant Z’s resignation on ground of not being able to get justice as long as he .remained n power ; (xix) investigation not being allowed to travel in direction of Federal Security Force due to intervention of Z’s Chief Security Officer despite identity of ammunition used in both indents at I and L ; (xx) evidence of Senior Provincial Police Officer of not having free hand in investigation and every thing being done according to directions of Chief Security Officer to Prime Minister and former’s Assistant ; (xxi) reopening of case revealing documentary evidence showing intermeddling of Prime Minister Z’s Chief Security Officer and his Assistant with investigation ; both such officers’ frequent visits to L during pendency of inquiry before Tribunal and subsequently ; (xxii) testimony of Chief Security Officer supported by relevant documents unmistakably showing all having been done under directions of appellant Z and such appellant being kept informed of day to day progress of activities ; (xxid) keeping of complainant under special surveillance after commission of murder at L and submission of reports to Z regarding complainant’s activities and utterances in quick succession and giving physical description and identity of even gunman engaged by complainant to guard him ; (xxiv) initiation of efforts by appellant to bring complainant back to fold of his party and working on mind of complainant by two experienced Police Officers in a subtle manner and their ultimate success in convincing complainant that his political future and safety of his own life and family lay in rapproachement with Prime Minister ; (xxv) entrustment of task to Director-General of Federal Security Force ,approver), he being made personally responsible for its execution, and induction of various subordinate officers at various levels at various stages for execution of conspiracy through employment of highly sophisticated weapons of Federal Security Force as well as its trained personnel ; (xxvl) highly placed officers and a host of other smaller officers not expected to have concocted a false story against former Prime Minister under pressure from Martial Law authorities; (xxvii) evidence of approvers and others corroborated by contemporaneous documents and circumstances ; (xxviil) circumstances giving no support to contention of case being politically motivated or as result of international conspiracy ; (xxix) case registered almost 3 years before ouster of appellant Z from power, clear indication being available as to possible identity of assailants, not only in kind of ammunition used in both incidents but also in report of Inquiry Tribunal and deliberate stultification of investigation despite availability of such clues ; (xxx) no pressure on approver GM and other witnesses alleged by defence and no reason for their falsely implicating Director, Federal Security Force specefied ; (xxxi) evidence on record leading to no other conclusion than that of accused appellants being concerned with murder, oral  evedence being supported by documents and circumstances and (xxxii) prosecution in view of very detailed and exhaustive examination of evidence of two approvers supported by mass of oral and documentary evidence,fully successful in establishing existence of conspiracy , identity of cons pirates, and death of deceased beinh probable consequence of such conspirancy---Accused held, rightly convicted –[evidence]

 

Crmir;al Appeal NO. 11 of 1978

 

Yahya Bakhtiar, Senior Advocate Supreme Court, Ghulamaly Memon, D. M. Awan, Muhammad Sharif Abdul Hafiz Lakho, Advocates Supreme Court instructed by Noor Ahmed Noorl and AL ,1. Siddiqi, Advocates-onRecord for Appellant.

 

Ijaz Hussain Batabi, Senior Advocate Supreme Court and Special Public Prosecutor instructed by M. A. Rahman, Advocate-on-Record, Mahmood A. Shalkh, Advocate and assisted by Riaz Ahmad, Assistant Advocate-General (Punjab) for the State.

 

Dates of hearing : 1st and 15th April; 20th to 24th, 27th to 31st May; 3rd to 7th, 10th to 14th June; 1st to 5th, 8th to 12th, 15th to 19th, 23rd to 26th, 29th to At July; 1st, 2nd, 5th to 9th, 12th, 13:h, 15th, 16th, 19th to 22nd August; 16th tot 20th, 23rd to 27th, 30th September; 1st to 4th, 7th to 11th, 14th to 18th, 21st to 25th, 28th to ‘list October; 1st, 4th, 5th, 16th, l8th to 21st, 23rd November; 2nd, 4th, ~th, 12th to 14th, 16th to gist and 23rd December 1918.

 

Criminal Appeal No. 12 of 1978

 

- wilan Qurban Sadln 1kram, Muhnmmcd sadiq Advocates Supreme Court instructed by Sh. Abdul Karim Advocate-on-Record (absent) for Appellant.

 

ijaz Humoin Batalri, Senior Advocate Supreme Court and special  Public Prosecutor instructed by M, A. Rahman, Advocate-on-records Mahmood Shaikh, Advocate and assisted by Riaz Ahmad Assistant Advocate General (Punjab) for the State.

 

Dates of hearing 22nd August 21st 23rd December 978

 

Criminal Appeal No. 13 of 1978

 

Irshad Ahmed Qureshi, Advocate Supreme Court for Appellants.

 

Ijaz Hussain Batalvi Senior Advocate Supreme Court and Special Public Prosecutor instructed by M. A. Rah-man, Advocate-on-Record, Mahmood A. Shaikh, Advocate and assisted by Riaz Ahmud, Assistant    advocate general (Punjab) fur the State.

 

Dates of hearing 21st August; 21st and 23rd December 1978.

 

INDEX

 

[Leading Judgment by Anwarul Haq, C Ja

 

Sr. No. Description of documents Pages

 

1. Statement of the case  ... ... .. , 59

 

2. Findings of the High Court  ... ... 64

 

3. Submissions on behalf of Z. A. Bhutto ... ... 65

 

4. Three applications by Z. A. Bhutto  ... ... 65

 

5. Bhutto’s personal appearance in Supreme Court ... 66

 

6. Personal appearance of other appellants and their admissions  ... ... ... ... 67

 

7. Political considerations irrelevant  ... -, 67

 

8. Detailed contentions on merits on behalf of Bhutto ... 68

 

9. Submissions on behalf of Mian Abbas  ... 71

 

10.Submissions on behalf of remaining three appellants ... 71

 

11.Dismissal of Bhutto’s Applications Nos. 7-9/78 ... 71

 

12.Objections as to the mode of trial  ... ... 75

 

13.Question of prior trial of complaint case  ... 75

 

14.Objections under sections 32 and 60 of the Evidence Act and hearsay evidence….77

 

15.ReSection 10, Evidence Act, embodying a special rule as to admissibility of evidence in conspiracy cases  ... 91

 

16,Conclusions as to section 10 of Evidence Act  .. , 99

 

17.Meaning of the phrase “reasonable ground to believe”  100

 

18. Application of section 10, Evidence Act to- the present case , 104

 

19. Scope and application of section 30 of the Evidence Act regarding confessions and statements made under section 342,Cr. P. C. by co-accused  ... .. , 105

 

20. Meaning of the term confession... ., 106

 

21. Position in respect of section 342, Cr. P. C. statements  107

 

22. Confession is not proof against co-accused, 108

 

23. Position of confessions and 342 statements in the present case... 109

 

24. Requirements of sections 337 and 164, Cr. P. C. regarding approvers and their statements  .  ... 110

 

25. Requirements of section 342, Cr. P. C. regarding examination of accused at close of prosecution ...  113

 

26. Scope and application of section 537, Cr. P. C. to cure irregularities in trial  ... ... ... 118

 

27. Application and scope of section 540-A of the Cr. P. C. in the matter of trial proceedings conducted on certain dates in absence of appellant, Z. A. Bhutto ... ... 123

 

28. Bhutto’s absence glue to illness but his counsel were present ... ... ... ,., „, 125

 

29. High Court’s Order dispensing with Bhutto’s attendance was justified .. ,:. ... ... ...  131

 

30. Effect of the failure of the High Court to pass a formal order under section 540-A, Cr. F. C, and to record reasons ...  133

 

31. Omission to record reasons not material, if requirements of section otherwise satisfied ... ... ...  135

 

32. The “Damn it” incident on 17th December 1977 during the trial ............  142

 

33. Non-supply of copies of Police Statements of certain witnesses to t he Defence ... ... ... ...  144

 

34. Re - Sections 161, 162, 172, 265.C, Cr. P. t`. ... ...  146

 

34-A. Re t Section 145, Evidence Act, and omissions and contradictions ... .. ... ... ...  156

 

35. Question of admissibility of Log Book of the Jeep involved in the crime under section 36. Effect of the Fvidence Act ... ...  158th. Effect of non-production of certain witnesses by the prosecution ... ... ... ... 161

 

37. Correct legal position regarding production of witnesses by the prosecution , .. ... ... ...  168

 

38. Application of these principles to the present case ...  169

 

39. Conclusions as to non-production of witnesses ... „.  171

 

40. Implications of camera proceedings …..171

 

41. Hearing of miscellaneous application in Chambers not open to objection ... ... ... ...  175

 

42. Conclusions as to justification for camera proceedings ...  179

 

43. Examination of evidence--Approver Masood Mahmood’s version ... ... ... ... ...  182

 

44. Approver Ghulam Hussain’s testimony ... ...  184

 

45. Test for appreciating evidence of an approver/accomplice ... 190

 

46. Who is an accomplice? ... ... ...  191

 

47. Principles governing the appraisal of approver’s evidence ... 194

 

48. The principle of double test .,. ... ...  194

 

49. Appraisal of Masood Mahmood’s evidence ...  197

 

50. Criticism of Masood Mahmood and his evidence ... ...  199

 

51. Special position enjoyed by Masood Mahmood under Z. A. Bhutoo .

 

51-A. Section of intrinsic worth of Masood Mahmood’s evidence ... 202

 

52. Alleged falsehoods uttered by Masood Mahmood ,..  204

 

53. Alleged omissions and contradictions in Masood Mahmood’s evidence.......... ___  209

 

54. Conclusions as to Masood Mahmood’s evidence …... 215

 

55. Evidence in corroboration of Masood Mohmood  ... 2:5

 

56. Relevance of motive in conspiracy cases , .„ .,e 216

 

57 Factual position regarding motives-The F. I. R.  ... 217

 

58. Oral evidence of Kasuri  ... ... 217

 

59. The incident of 3rd June, 1974  .. , .. , 218

 

60. Documentary evidence of Mr. Kasuri’s criticism of Bhutto  218

 

61. Conclusion as to hostility between Kasuri and Bhutto ... 222

 

62. Corroborative evidence as to motive  ... ... 223

 

63. Evidentiary value of secret intelligence reports  ... 224

 

64. Defence suggestions as to other possible motives ... 224

 

65. Was Kasuri a political non-entity  ... ... 228

 

66. Motive proved  , ... ... 229

 

67. Corroboration of Masud Masood by Saeed Ahmad Khan,Chief Security Officer to the former Prime Minister  229

 

68. Credibility of Saeed Ahmad Khan  ... ... 231

 

69. Conclusions as to Saeed Ahmad Khan’s corroboration of Masood Mahmood  ... ... ... 233

 

70. Corroboration regarding Quetta visit of Bhutto and Masood Mahmood in July 1974  ... ... ... 233

 

71. Masood Mahmood’s instructions to Director M. R. Welch to take care of Kasuri at Quetta  ... ... 234

 

72. Documentary evidence in support of M. R. Welch-Intelligence Report  ... ... ... 235

 

73. Defence criticism of Welch  ... ... 237

 

73-A. Conclosions as to evidence of M. R. Welch ... ... 240

 

74. The Islamabad incident  .. ... ... 241

 

75. The present incident at Lahore  ... ... 242

 

76. The identity of crime empties recovered in Islamabad and Lahore incidents ... .,. ... ... . 243

 

77. Question of admissibility of the reports of the Fire-arms Expert  ... ... ... 243

 

78. Corroboration by subsequent conduct of Z. A. Bhutto ... 248

 

79. Legal position regarding subsequent conduct  ... 248

 

80. Evidence as to subsequent conduct .  ... ... 249

 

81. Interference with the investigation of the case  ... 251

 

82. Conclusions as to interference with the investigation ... 257

 

83. Defence criticism of Saeed Ahmad Khan and Abdul Hamid Bajwa  ... ... ... ... 258

 

84. Nature and effect of interference with the investigation  260

 

85. Surveillance of Kasuri after the murder of his father  261

 

85-A. Conclusions as to Kasuri’s Surveillance ... ... 263

 

85-B. Efforts to bring back Kasuri to P. P. P.  ... r 264

 

86. Cral Statement of Kasuri on this sub; ect  ... 264

 

87. Evidence of Saced Ahmad Khan on the same subject  264

 

88. Documentary evidence regarding wining over of Kasuri  265

 

88-A. Conclusions as to efforts at wining over of Kasuri  272

 

89. Defence criticism of Ahmad Raza Kasuri and his evidence  273

 

90. Alleged omissions and contradictions in the evidence of Saeed Ahmad Khan  :  ... ... 274

 

91. Whether Saeed Ahmad Khan is an accomplice?  277

 

92. Conclusion as to Saeed Ahmad Khan  ... 279

 

93. Cumulative effect of testimony of Masood Mabmood and corroborative evidence so far discussed  ..279

 

94. Appraisal of Approver Ghulam Hussain’s evidence  279

 

95. Details of Islamabad incident corroborate Ghulam Hussain  2_82

 

96. Details of the present occurrence support Ghulam Hussain  ... ... ... ... 284

 

97. Defence criticism of Ghulam Hussain’s evidence  ... 285

 

98. Alleged omissions and improvements in Ghulam Hussain’s evidence  ... ... ... ... 293

 

99. Alleged falsehood of Ghulam Hussain  ... 300

 

100. Conclusions as to Ghulam Hussain’s evidence  ... 318

 

101. Additional corroboration of Chulam Hussain  ... 318

 

102. Effect of negative report of Ballistics Expert regarding guns of 3rd Battalion of F. S. F., Walton, Lahore  ... 319

 

103. Theories of substitution of crime empties  ... 320

 

104. Ghulam Hussain’s evidence worthy of acceptance ... 323

 

105. Conspiracy defined  ... ... ... 324

 

106. Nature of conspiratorial agreement  ... ... 328

 

107. Mode of proof of conspiracy,  ... 331

 

108. Conspiracy established  ... ... ... 335

 

109. Application of sections l I l and 301 of the Pakistan Penal

 

Code  ... ... ... ... 339

 

110. Killing of Kasuri’s father was probable consequence of conspiracy  ... ... ... ... 347

 

111. Section 301, P. P. C. not applicable to certain appellants  350

 

112. Non-framing of charge under section 111, P. P. C. not material  ... ... ... ... 351

 

113. Section 227 of the Criminal Procedure Code not applicable  ... ... ... ... 357

 

114. Conclusions as to applicability of sections 111 and 301,

 

P. P. C.  ... ... ... ... 358

 

115. Allegations of Bias against the trial Bench ... .. r 359

 

116. Conclusions as to first part of Defence submissions on Bias of the trial Bench  ... ... ... 380

 

116-A. Final Conclusions as to bias  ... ... 387

 

117. Regarding letter of Investigating Officer Abdul Khaliq dated 18th February 1978, to his departmental superior recommending a brother of appellant Iftikhar Ahmad for employment  ... ... ... ... 387

 

118. Summary of conclusions  ... ... ... 389

 

119. The confessing accused and the two approvers could not have prevented such a probe  ... ... ... 394

 

120. Convictions upheld  ... ... ... 394

 

121. Question of sentence  ... ... ... 395

 

122. Expunction of certain paragraphs from the High Court judgment  ... ... ... ... 395

 

123. Case of appellant Mian Muhammad Abbas  ... 396

 

124. Cases of appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad  ... ... ... 399

 

125. Immunity available under section 22 of the Federal Security Force Act, 1973  ... ... ... 400

 

126. Re: Section 12 of the Federal Security Force Act  ... 401

 

127. Re: Application of section 76 of the Pakistan Penal Code ... 401

 

128. Re: Application of section 94, P. P. C.  ... 402

 

129. All three appeals dismissed  ... ... 404

 

130. Appreciation of assistance rendered by counsel  .. 404

 

ORDER

 

STATEMENT OF THE CASE

 

ANWARUL HAQ, C. J.---This judgment will dispose of Criminal Appeals bearing Nos. 11, 12 and 13 of 1978, all of which are directed against the judgment of a Full Bench, comprising five Judges, of the Lahore High Court, dated the 18th of March 1978, in Criminal Original No. 60 of 1977.

 

They were heard by the Full Court of nine Judges up to the 30th of July 1978, on which date our learned brother Qaisar Khan, J., retired from the Court on attaining the age of superannuation. Thereafter the bearing was continued before the remaining eight Judges until the 20th of November 1978, when unfortunately one of the members of the, Bench, viz. Waheeduddin Ahmad, J., was taken ill, having suffered a Cerebro-Vascular stroke, resulting in impairment of his eye-sight, speech and general physical activity. I After an adjournment of three weeks to await his recovery, we decided to proceed without him, as prospects of his joining the Bench within a foreseeable future were described as uncertain by eminent physicians of Karachi, Lahore and Rawalpindi. Our learned brother was shifted to Karachi by his family, after three weeks of hospitalisation at Rawalpindi. It is a matter of regret that we were thus deprived of the wisdom and experience of two of the Senior Judges of the Court.

 

2. The five appellants were tried by the High Court, on its original side, for conspiracy to assassinate Ahmad Raza Kasuri, a member of the National Assembly of Pakistan at the relevant time, and in pursuance thereof making a murderous assault on him by firing on his car on the night between the 10th and 11th of November 1974, and as a result causing the death of his father Nawab Muhammad Ahmad Khan. All of them have been convicted under section 120-B read with section 115 of the Pakistan Penal Code, and each of them has been sentenced to undergo rigorous imprisonment for five years. Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa have been further convicted under section 307 mad with section 109 of the Pakistan Penal Code, and sentenced to undergo rigorous imprisonment for seven years in each case; whereas the remaining two appellants have been convicted in this behalf under section 307 read with section 34 of the Pakistan Penal Code and awarded a similar sentence. Finally, appellants Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa have been convicted under section 302 read with sections 301, 109 and 111 of the Pakistan Penn’ Code, and each of them bas been sentenced to death, and a similar penalty has been awarded to the remaining two appellants under section 302 read with sections 301 and 34 of the Pakistan Penal Code. Appellant Zulfiqar Ali Bhtitto has also been directed to pay compensation to the heirs of the deceased in the sum of Rs. 25,000 under section 544-A of the Criminal Procedure Code, or in &fault to undergo rigorous imprisonments for a period of six months. The sentences of imprisonment have been ordered to run concurrently, and shall take effect in case the sentence of death is not carried out.

 

3. On the date of the incident Zulfiqar Ali Bhutto was holding the office of the Prime Minister of Pakistan, which office he had held from August 1973, and continued to hold until the 5th of July 1977, when the country was brought under Martial Law. The other appellants were members of the Federal Security Force, Mian Muhammad Abbas being Director, Operations and Intelligence; Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad being employed in that force as Inspector, Sub-Inspector and Assistant Sub-Inspector respectively. The Director-General of the Federal Security Force, namely, Masood Mahmood, and one other Inspector, named Ghulam Hussain were also included in the list of accused persons, but were later granted pardon and gave evidence at the trial as approvers.

 

4. The incident took place at about 0.30 a.m. on the night between the 10th and 11th of November 1974, near Shadman-Shah Jamal Roundabout in Lahore, when Ahmad Raza Kasuri (P. W. 1), was returning to his house in Model Town after attending the wedding of one Bashir Hussain Shah in Shadman Colony. He was driving his car bearing No. L E J 9495, and his father Nawab Muhammad Ahmad Khan deceased was sitting next to him, whereas his mother and her sister were occupying the rear seat of the car. As he negotiated the roundabout in question, less than a hundred yards from the wedding place, his car was fired upon with automatic weapons. The headlights of the car as well as other parts of its body were hit, and so was his father. The lights of the car went off, but Ahmad Raza Kasuri managed to drive on so .as to take his injured father to the United Christian Hospital, where the deceased succumbed to his injuries at 2-55 a.m.

 

5. On hearing of the incident, the Deputy Commissioner of Lahore, as well as the Senior Superintendent of Police, Muhammad Asgbar Khan (P. W. 12) and Deputy Inspector-General of Police, Sardar Muhammad Abdul Wakil Khan (P. W. 14) arrived at the hospital. At their suggestion a statement in writing (Exh. P. W. 1/2) was given by Ahmad Raza Kasuri at 3-20 a.m. and on its basis a formal First Information Report was recorded at Police Station Ichhra by S. H. O. Abdul Hayee Niazi (P. W. 34). In this report the complainant referred to an earlier murderous attack made on him on the 17th of January 1972, at Kasur, and another attack launched on him on the 24th of August 1974, at Islamabad, in which automatic weapons were used. After giving the details of the manner in which his car was fired upon near the Roundabout, Ahmed Raza Kasuri asserted that the firing on his car had been carried out for political reasons since be was a member of the Opposition in the National Assembly of Pakistan and was holding the office of Central Information Secretary of Tehrik-e-Istaqlal Pakistan, which used to criticise the Government in strong terms. He added that in June 1974, Zulfiqar Ali Bhutto had addressed him in a meeting of the National Assembly saying that he was fed .up with the complainant, and it was not possible for him to tolerate the complainant any more. Ahmad Raza Kasuri stated that these words formed part of the record of the National Assembly, and had also been published in the newspapers.

 

6. The autopsy of the dead body of deceased Muhammad Ahmad Khan, as conducted by Dr. Sabir Ali (P. W. 7), Deputy Surgeon, Medico-Legal, Lahore, revealed that the deceased had received bullet injuries on the top right side and back of the left side of the head, resulting in fracture of the parietal bone as well as of the base of the skull. Two thin metallic pieces from the margins of the wound and one bullet from the right cerebral hemisphere in the middle were recovered, and handed over to the Investigating Officer Abdul Hayee Niazi after being sealed in a tube.

 

7. On inspecting the spot, S. H. O. Abdul Hayee Niazi, collected 24 empty cartridges from the ground, and also a lead piece of a bullet from one of the adjacent bungalows. He noticed bullet marks on the walls of these houses and found that one bullet bad pierced through the door and also four books lying on a shelf in one of the rooms of this house. He prepared a site plan (Exh. P. W. 34/2), showing, inter alia, the four places, two in the roundabout, and two on the metalled portion of the road, from where he had collected the empty cartridges. He also indicated on the plan the estimated width of the Roundabout and the metalled road as well as distances between the various points shown on the plan. Subsequently he had another plan of the spot prepared by the draftsman Inam Ali Shah which was brought on the record as Exh. P. W. 34/5-D, and shows a somewhat different picture from that appearing in the first site plan as regards distances between various points.

 

8. The Investigating Officer first showed the 24 crime empties to Nadir Hussain Abidi (P. W. 36) then Director of the Forensic Science Laboratory, Lahore, so as to ascertain the type of weapon from which they had been fired. Later, on the 23rd of November 1974, he despatched them to the Inspectorate of Armaments, General Headquarters, Rawalpindi, for an expert opinion as to their calibre, etc. and was informed, vide Exh. P. W. 32/1, that the crime empties were of 7.62 mm calibre, of Chinese Make and could be fired from rifle, L. M. G. and S. M. G.

 

9. In the initial stages the investigation was supervised by Deputy Superintendent of Police, Abdul Ahad, who is said to have died in 1975. As apparently, the investigation was not making much headway, the case was then entrusted to Malik Muhammad Waris (P. W. 15) of the Special Branch. The Punjab Government also appointed a Special Tribunal, comprising Mr. Justice Shafi-ur-Rehman of the Lahore High Court, to inquire into the incident. The Tribunal submitted its report to the Provincial Government on the 26th of February 1975, giving certain guidelines for the further investigation of the case. It appears that the report was not published. In October 1975, the case was filed as untraced .by D. S. P. Muhammad Waris after obtaining instructions from the Provincial Government through the Inspector-General of Police.

 

10. However, the case was re-opened after the promulgation of Martial Law on the 5th of July 1977. The Central Government had directed the Federal Investigation Agency to inquire into the working of the Federal Security Force and its officers, particularly into allegations relating to various political murders and kidnappings, as well as dispersing of political meetings and processions by the Federal Security Force. While investigating one such incident relating to the alleged bomb-blast in the premises of the Lahore Railway Station on the visit of Air Marshal (Rtd.) Asghar Khan in March 1975, Abdul Khaliq (P. W. 41), Deputy Director of the Federal Investigation Agency, came to suspect that the Federal Security Force might be involved in the murder of Nawab Muhammad Ahmad Khan. Appellants Arshad Iqbal and Rana Iftikhar Ahmad were interrogated in this behalf on the 24th and 25th of July 1977, and arrested in this case. They confessed their participation in the incident and their statements were recorded on the 26th of July 1977, under section 164 of the Criminal Procedure Code by Magistrate Zulfiqar Ali Toor (P. W: 10). Appellants Ghulam Mustafa and Mian Muhammad Abbas as well as approvers Masood Mahmood and Ghulam Hussain were also later arrested. All of them made confessional statements under section 164 of the Criminal Procedure Code, eventually leading to the arrest of the former Prime Minister.

 

11. An incomplete Chelan was submitted before a Magistrate at Lahore on the 11th of September 1977, and on the 13th of September 1977, the case was transferred to the High Court for trial on an application having been made in this behalf by the Special Public Prosecutor. The final report under section 173 of the Criminal Procedure Code was submitted in the High Court on the 18th of September 1977, where the trial commenced on the 11th of October 1977, and concluded’ on the 2nd of March 1978. The judgment of the High Court was announced on the 18th of March 1978, as already stated.

 

12. According to the evidence adduced at the trial, the case for the prosecution is that Ahmad Raza Kasuri was one of the founder members of the Pakistan People’s Party (commonly known as the P. P. P.), which was founded on 1-12-1967, and of which Zulfiqar Ali Bhutto was the Chairman. Kasuri was elected as a Member of the National Assembly in the 1970 general elections on the ticket of that party from Kasur Constituency No. N. A. 63. As he was a persistent critic of the actions, conduct and policies of Zulfiqar Ali Bhutto, his relations with the latter, who was not only the Party Leader and Chairman, but had at various stages had the offices of the Chief Martial Law Administrator, the President of Pakistan, and later the Prime Minister of Pakistan, became seriously strained, with the result that Zulfiqar Ali Bhutto developed a personal hatred against him. On the 17th January 1972, a murderous attack was made on the life of the complainant at Kasur and a criminal case was registered in that behalf. In the year 1973, Kasuri left the P. P. P. and joined another political party, namely, Tehrik-e-Istaqlal, whereafter his criticism of Zulfiqar Ali Bhutto became more severe and violent. On the 3rd of June 1974, a particularly unpleasant incident took place between Kasuri and Zulfiqar Ali Bhutto in the National Assembly, during the course of which the former Prime Minister told Kasuri to keep quiet, adding

 

“I have had enough of you; absolute poison. I will not tolerate your nuisance.”

 

13. It is alleged by the prosecution that it was at about this time that Zulfiqar Ali Bhutto entered into a conspiracy with approver Masood Mahmood (P. W. 2), who was then the Director-General of the Federal Security Force, to get the complainant eliminated through the agency of the Federal Security Force. Masood Mahmood brought in appellant Mian Muhammad Abbas, who was his Director of Operations and Intelligence, and Mian Muhammad Abbas in turn directed approver Ghulam Hussain (P. W. 31) to organise the murder of Ahmad Raza Kasuri. Mian Muhammad Abbas arranged the supply of arms and ammunition from the Armoury of the Federal Security Force for the execution of this design, and directed appellant Ghulam Mustafa to render all assistance to approver Ghulam Hussain. He also deputed Arshad Iqbal and Rana Iftikhar Ahmad to assist the approver, and it was in pursuance of these arrangements and directions that the attack was ultimately launched on the car of Ahmad Raza Kasuri on the night between the 10th and 11th of November 1974. According to the prosecution, the actual firing was done by appellants Rana Iftikhar Abmad and Arshad Iqbal, who were armed with step-guns supplied to them by appellant Ghulam Mustafa, whereas approver Ghulam Hussain remained present near the spot to ensure that these appellants carried out the mission assigned to them.

 

14. It is also alleged by the prosecution that prior to the incident resulting in the death of Kasuri’s father, approver Ghulam Hussain assisted by some other members of the Federal Security Force, had attacked Ahmad Raza Kasuri on the 24th of August 1974, when the latter was driving his car on the Embassy Road in Islamabad. A case was registered on that occasion, but it was also filed as untraced by D. S. P. Agha Muhammad Safdar, although he had recovered five crime empties of the same calibre as were used in the present incident, namely, 7.62 mm.

 

15. The prosecution produced 41 witnesses, besides a large number of documents, to prove the following (i) Strained relations and enmity between Zulfiqar Ali Bhutto and Ahmad Raza Kasuri resulting in the threat extended on the floor of the Parliament on the 3rd of June 1974, by Zulfiqar Ali Bhutto ;

 

(ii) The conspiracy to murder Ahmad Raza Kasuri between Zulfiqar Ali Bhutto and Masood Mahmood (P. W. 2), and joining of the other appellants as well as Ghulam Hussain approver (P. W.-31) in that conspiracy;

 

(iii) Attack on Ahmad Raza Kasuri firstly at Islamabad in August 1974, and later at Lahore on the 10/1Ith November 1974, the last occurrence culminating in the death of K^suri’s father ;

 

(iv) The steps taken by Zulfiqar Ali Bhutto and his subordinates, particularly Saeed Ahmad Khan (P. W. 3) and his Deputy the late Abdul Hameed Bajwa, to channelise the investigation in a manner so as to exclude the possibility of detection of the actual culprits; and interference in the investigation of the case by officers of the Central, Government ; and

 

(v) Preparation of incorrect record of the investigation in 1974-75 by the Police under the direction of the aforesaid officers of the Central Government with the object of shielding the then Prime Minister.

 

16. All the five appellants pleaded not guilty at the trial. Zulfiqar Ali Bhutto expressed lack of confidence in the Bench on the ground that the presiding Judge, namely, the learned Acting Chief Justice of the High Court, was biased against him as he had been supersesed by his Government in the matter of promotion to the office of Chief Justice of the Lahore High Court in October 1976; and also because the P. P. P. Executive Committee, presided over by the appellant, had criticised certain statements made by the same Judge in his capacity as the Chief Election Commissioner seeking to cast aspersions on the conduct of the P. P. P. Government in the March 1977 Elections. He unsuccessfully made various applications in the High Court as well as in the Supreme Court, and to the Governor of the Punjab, for the transfer of the case to another Bench or Court; and ultimately he cancelled the powers of attorney of all his counsel on the 9th of January 1978, and boycotted the proceedings of the trial from the 10th of January 1978, onwards. He also protested against the holding of part of the proceedings in camera, and refused to answer questions put to him under section 342 of the Criminal Procedure Code, stating that he would not be offering any defence since he had boycotted the proceedings of the trial, and that he would confine his statement mainly to two issues

 

(a) The reason for his lack of confidence in the fairness of the trial ; and

 

(b) The reason why this case had been fabricated against him.

 

However, he did answer some of the questions, denying the prosecution allegations against him. He did not produce any evidence in defence.

 

17. Appellant Mian Muhammad Abbas retracted his confession before the opening of the trial, asserting that his statement under section 164, Criminal Procedure Code was obtained under duress as well as promises. He stated that he did not have good relations with his Director-General Masood Mahmood; that be had no knowledge whatsoever of the conspiracy in question and never gave any directions to approver Ghulam Hussain or to other officials of the Federal Security Force for the supply of arms and ammunition. He filed a written statement in the High Court mentioning certain facts and events to show that Masood Mahmood was annoyed with him, and similarly Amir Eadshah (P. W. 20) was also inimical towards him. He admitted certain correspondence with M. R. Welch (P. W. 4), who was at the relevant time stationed at Quetta as Director, Federal Security Force, but explained that this correspondence was exchanged in routine. He summoned certain defence witnesses mainly to show that he had tendered his resignation twice as he did not want to be a party to the alleged illegal activities of the Federal Security Force.

 

18. It may be stated here that during the hearing of the appeal Mian Muhammad Abbas has filed a written statement admitting the prosecution allegations against him, but pleading that he acted under duress, inasmuch as pressure was brought to bear upon him by Director-General Masood Mahmood to carry out the mission for the elimination of Ahmad Raza Kasuri.

 

19. The remaining three appellants, namely, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad stuck to the confessional statements initially made by them under section 164 of the Criminal Procedure Code, and acknowledged the role attributed to them by the pr8secution. They, however pleaded that they had no option in the matter as they were bound by the oath administered to them on joining service in the Federal Security Force, and they were being pressurised and threatened by their superiors, particularly approver Ghulam Hussain and appellant Mian Muhammad Abbas. They also filed written statements in support of their pleas. They summoned one defence witness to show that there was no question of bad blood between Director-General Masood Mahmood and appellant Mian Muhammad Abbas as the Director-General had given good reports to Mian Muhammad Abbas and had also sponsored the case for his promotion to the rank of Director.

 

FINDINGS OF THE HIGH COURT

 

20. After reviewing the entire evidence at length, the High Court has held that the prosecution has succeeded in proving that Zulfiqar Ali Bhutto had strained relations with Ahmad Raza Kasuri, thus constituting a motive to get him eliminated ; that this appellant had entered into a conspiracy with Masood Mabmood (P. W. 2), in which plan the other accused also joined at different levels to execute the mission along with Ghulam Hussain approver ; that the attack on Ahmad Raza Kasuri in Islamabad was a part of the same operation ; that the attack launched on Kasuri’s car in Lahore, during the course of which his father was killed, was also in furtherance of the same conspiracy ; and that the initial investigation in the case was not honest, and efforts had been made at various levels to divert its course for the purpose of screening the real offenders. The High Court has expressed the view that sufficient evidence, circumstantial and documentary, has been brought on the record to provide corroboration necessary for the purpose of placing reliance on the statements of the two approvers Masood Mahmood and Ghulam Hussain. It has also taken note of the fact that the appellants Arshad Iqbal, Ghulam Mustafa and Rana Iftikhar Ahmad had stuck to their confessions throughout the course of the trial. Finally, the High Court has observed that there were no extenuating circumstances in favour) of the appellants, as Zulfiqar Ali Bhutto was the Prime Minister of the country and it was his duty to protect the life and liberty of the citizens of Pakistan, and not to use the Federal Security Force for eliminating his political opponents ; that the other appellants were under no obligation to obey the unlawful commands of their superiors, and such a plea could not afford a valid defence in law.

 

SUBMISSIONS ON BEHALF OF ZULFIQAR ALI BHUTTO

 

21. During the course of elaborate and exhaustive arguments, spread over a period of nearly two months, Mr. Yahya Bakhtiar, the learned counsel -for appellant Zulflqar Ali Bhutto has assailed the judgment of the High Court on three main grounds, namely :---

 

(a) It is a false, fabricated and politically motivated case, being the result of an international conspiracy aimed at eliminating the appellant both politically and physically ;

 

(b) That the trial stands vitiated for the reason that the presiding Judge of the Bench, namely, Mr. Justice Mushtaq Hussain was biased against the appellant, and the trial was not conducted fairly inasmuch as evidence was not recorded faithfully in accordance with the depositions of the witnesses, objections raised by the defence counsel as to the admissibility of evidence were frequently not recorded, and were often illegally overruled ; and that as a result of the cumulative effect of such prejudicial orders the appellant was compelled to boycott the trial from the 10th of January, 1978, onwards as a measure of protest ; and

 

(c) That on merits, the prosecution had failed to prove its case beyond reasonable doubt; that inadmissible evidence had been allowed to be brought on the record and taken into consideration against the appellant in violation of the relevant provisions of law; and that admissible and relevant evidence had been illegally shut out to the prejudice of the appellant ; that the prosecution witnesses, particularly the two approvers Masood Mahmood and Ghulam Hussain were not worthy of credit ; and that the necessary corroboration, as required by law, was not available on the record.

 

Mr. Yahya Bakhtiar submitted that on these grounds the appellant was entitled to acquittal, or at least it was a case where a re-trial should be ordered by an impartial Bench or Court.

 

THREE. APPLICATIONS BY Z. A. BHUTTO

 

22. On the 8th of July, 1978, the learned defence counsel presented three miscellaneous applications, which have been numbered as Criminal Miscellaneous 7, 8 and 9 of 1978, for facility of reference. In the first application the prayer is for resummoning M. R. Welch (P. W. 4) so that he .could be questioned in respect of his religion and some other waters which could not be taken up in cross-examination owing to the appellant’s absence from the Court on the day Welch was examined. The second application contains a request for summoning of D. S. P. Agha Muhammad Safdar and Col. Wazir Muhammad Khan of the Central Ordnance Depot, Kharian, as Court witnesses, so that the first named could prove the statement made by Ahmad Raza Kasuri (P. W. 1) under section 161 of the Criminal Procedure Code during the investigation of the Islamabad incident in August, 1974 ; anti the second witness could depose as to the source and marking of the ammunition supplied to various units of the Army and para-Military Forces like the Federal Security Force. The 3rd application contains a prayer for summoning 10 defence witnesses including the former Chief of the Army Staff General Tikka Khan, former Minister of State for Foreign Affairs, Mr. Aziz Ahmad, former Inspector-General of Police of the Punjab Province Rao Abdul Rashid, and certain other officials of the Press Information Department and of the C. M. L. A. Secretariat, for the reason that the appellant did not have an opportunity of adducing defence evidence owing to his having boycotted the trial.

 

BHUTTO’S PERSONAL APPEARANCE IN SUPREME COURT

 

23. An oral prayer was also made at the commencement of the hearing of the appeal, as well as at the close of arguments, that the appellant should be given an opportunity in this Court to make a full statement under section 342 - of the Criminal Procedure Code, as such an opportunity was denied to him in the trial Court.

 

24. A written application was also later submitted to the Court by the appellant himself requesting for an opportunity to personally address the Court on some aspects of the case. This request was allowed, and, accordingly, the appellant personally appeared before the Court for four days, from the 18th to the 21st of December, 1978.

 

25. During his elaborate address, spreading over nearly 12 hours, appellant Zulfiqar Ali Bhutto denied the prosecution allegations regarding his having any motive to have witness Ahmad Raza Kasuri assassinated, and having entered into any conspiracy in this behalf with witness Masood Mahmood, the then Director-General of the Federal Security Force. He also contended that the evidence did not disclose the presence of an essential ingredient of the offence of conspiracy, namely, agreement, on the part of the co-conspirators, particularly Masood Mahmood, who had pleaded duress on the part of the appellant. The appellant commented upon what he called the inherent contradictions in the evidence of witnesses Ahmad Raza Kasuri and Masood Mahmood, and submitted that they were acting under the compulsion of Martial Law prevailing in the country. He stated that if the prosecution wanted the Court to take judicial notice of the alleged social conditions prevailing in Pakistan during his tenure of office as President and Prime Minister of the country, then similar notice should also be taken of the fact that important witnesses were giving evidence at the trial during the continuance of Martial Law.

 

26. He vehemently contended that )he entire case against him was false and fabricated, intended to eliminate him physically and politically, and that he was innocent. He bitterly complained that he had not been given a fair trial in the High Court, as its presiding Judge, Mr. Justice Mushtaq Hussain had a personal bias against him owing to his supersession for the office of Chief Justice of the Lahore High Court, and also because the Central Executive Committee of the Pakistan People’s Party, presided over by the appellant, had joined issue with him in respect of certain statements made by him in his capacity as Chief Election Commissioner in August, 1977.

 

27. He strongly criticised the observations made by the High Court in paragraphs 609 to 616 of its judgment, describing him as a Muslim only in name and not living up to the ideals of conduct prescribed for Muslim rulers lay Islam. He submitted that this criticism was entirely unjustified, and was clear evidence of the bias of the trial Court against him ; as, in fact, he had rendered greater service to Islam than any of the previous rulers of Pakistan, as he was instrumental in solving the age-old Qadiani problem, in convening the Islamic Summit at Lahore and being elected as its Chairman on a proposal made by no less a person than the late King Faisal of Saudi Arabia ; that be had organized’ Seerat Conferences in the country, had formulated a liberal Haj Policy, had declared Friday as a closed holiday instead of Sunday, had introduced prohibition in the country, had changed the name of the Pakistan Red Cross to Red Crescent ; and was primarily responsible for the unanimous adoption of the 1973 Constitution by the Parliament. He submitted that in the face of these achievements in the cause -of Islam, the High Court had no justification, nor was it competent, to pronounce upon the nature of his conduct as a Muslim. He also submitted that no head of the Government could be held responsible for individual crimes committed in the State during his tenure of office. He resented the insinuations and innuendoes contained in paragraphs 613 to 6 6 of the judgment ; which ostensibly spell out the Islamic injunctions regarding the conduct of Government by a Muslim ruler.

 

28. On all the four days of his appearance appellant Zulfiqar Ali Bhutto expressed his full confidence in this Court, and also his gratitude for having been given an opportunity of personally addressing the Court at length, even though his lawyers had already made full submissions on all aspects of the case.

 

PERSONAL. APPEARANCE OF OTHER APPELLANTS AND THEIR ADMISSIONS

 

29. The other four appellants, namely, Mian Muhammad Abbas, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad were also allowed, on their request, to be present in Court during the days of appellant Zulfiqar Ali Bhutto’s address. At the close of his address they sought permission to make oral submissions.

 

30. Mian Muhammad Abbas re-affirmed the written application he had earlier sent to this Court, acknowledging responsibility for his part in the crime. He, however, pleaded that he had acted under the orders and threats of his Director-General Masood Mahmood, and that he had tendered his resignation twice, but the same was not accepted. He regretted that under the orders of the former Prime Minister Zulfiqar Ali Bhutto and Director--General Masood Mahmood he was instrumental in the assassination of the late Nawab Muhammad Ahmad Khan, who was his personal friend. Finally, be asked for clemency in the matter of punishment.

 

31. The other three appellants also reiterated their confessions, and submitted that they had acted under the orders of their superiors, and requested for lenient treatment in the matter of sentence. Ghulam Mustafa narrated a fairly long list of political crimes allegedly committed by the Federal Security Force under the orders of the former Prime Minister, adding that Masood Mahmood or other members of the Federal Security Force had no personal interest in these matters. The other two appellants also asserted that they had no enmity with Ahmad Raza Kasuri or his late father Nawab Muhammad Ahmad Khan who was killed in the attack mounted by them on Ahmad Raza Kasuri’s car.

 

POLITICAL CONSIDERATIONS IRRELEVANT

 

32. Although in the grounds of appeal, as well as in the oral submissions made at the Bar, considerable emphasis has been laid on the point that the present case was politically motivated in the sense that there was an international conspiracy to remove the appellant from power, and to eliminate him both politically and physically, it is clear that these are matters extraneous to the record of the case and to its judicial determination. The fate of the present appeal must depend not on the motive of those who reopened the investigation of the case on the promulgation of Martial Law on the 5th of July, 1977, but on the strength or weakness of the evidence adduced in support of the allegations made by Ahmad Raza Kasuri in the First Information Report made by him as long ago as the 11th of November, 1974, minutes after his father bad breathed his last owing to injuries sustained during the attack on the complainant’s car. If the requisite evidence, satisfying the legal and judicial standards applicable in criminal trials of the present kind, is available on the record to prove the guilt of the appellant beyond reasonable doubt, then the duty of the Court is clear, irrespective of the political considerations which might have led to the overthrow of the appellant’s Government in July, 1977, and the reopening of the present case thereafter. The converse is equally true. If sufficient evidence is not available to sustain the convictions recorded against the appellant, then they must be set aside, regardless of any political considerations. On this view of the matter, we did not think it necessary to go into the details of the alleged international conspiracy alluded to by Mr. Yahya Bakhtiar.

 

DETAILED CONTENTIONS -ON MERITS ON BEHALF OF BHUTTO

 

33. Even though the learned counsel had mentioned the question of bias before commenting on the merits of the case, he agreed that it would be more appropriate if the merits were discussed first, leaving the question of bias to be considered later. I would, accordingly, proceed to outline the various contentions raised by Mr. Yahya Bakhtiar on the merits of the case.

 

34. Mr. Yahya Bakhtiar contended that;-----

 

(i) The trial stands vitiated by reason of serious prejudice having been caused to the appellant owing to the violation of the rule laid down by the Supreme Court in Nur Elahi v. The State and others P L D 1966 S C 708, namely, that the complaint case initiated by Ahmad Raza Kasuri should have been tried first before taking up the challan filed by the State ;

 

(ii) A considerable amount of evidence, and he gave details, had been admitted at the trial in violation of the provisions contained in sections 10, 30 and 32 of the Evidence Act, which must now be excluded from consideration ;

 

(iii) (a) The two approvers not having made a full and true disclosure of the whole of the circumstances within their knowledge, as required by section 337 of the Code of Criminal Procedure, they could not be regarded as approvers in the legal sense, and for that reason as well their evidence could not be brought within the ambit of section 10 of the Evidence Act; and

 

(b) All the confessions recorded in the case have been recorded in violation of the provisions of subsection (1-A) of section 164, Criminal Procedure Code as they were not recorded in the presence of the appellant, and the latter was not given an opportunity of crossexamining them, thus causing grave prejudice to the appellant;

 

(iv) The appellant is alleged to have originally conspired with the late Malik Haq Nawaz Tiwana, the first Director-General of the Federal Security Force, but there is no charge in this behalf, and, accordingly, the prosecution was precluded from leading evidence to prove any conspiracy;

 

(v) As the alleged conspiracy came to an end with this incident resulting in the death of Kasuri’s father, evidence as to the subsequent conduct of the appellant or of the co-conspirators, or of his subordinates was not only inadmissible but also irrelevant; that even otherwise these acts etc. were not of an incriminating nature and could not give rise to an inference about the existence of the alleged conspiracy;

 

(vi) Several important pieces of incriminating evidence, relied upon by the High Court, had not been put to the appellant under section 342 of the Criminal Procedure Code, with the result that they also had to be excluded from consideration by this Court ;

 

(vii) The provisions of section 540-A of the Criminal Procedure Code had not been properly complied with by the High Court before proceeding with the trial in the absence of the appellant from the 16th of November, 1977 to the 5th of December, 1977, and on the 14th of December, 1977, as well as the 17th of December, 1977, with the necessary consequence that the evidence of the witnesses examined on these dates could not be legally used against the appellant ;

 

(viii) Statements of several prosecution witnesses, namely, Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31), and Abdul Hayee Niazi (P. W. 34), recorded under section 161 of the Criminal Procedure Code during the investigation of the case were not supplied to the defence as required by section 265-C of the Criminal Procedure Code, thus depriving the defence of its valuable right to cross-examine the witnesses in the light of their previous statements, which would amount to an illegality requiring that the entire evidence of these witnesses be excluded from consideration ;

 

(ix) The High Court failed to apply the correct legal procedure in the matter of permitting the defence to cross-examine important prosecution witnesses as to significant omissions from their previous statements, as it erroneously took the view that omissions, or lapses of memory, did not amount to contradictions within the meaning of section 145 of the Evidence Act, thus causing grave prejudice to the appellant by denying him the opportunity to show that the witnesses were not reliable ;

 

(x) The defence was illegally precluded from proving the log book of the jeep driven by Muhammad Amir (P. W. 19), although the matter was fully covered by section 35 of the Evidence Act read with illustration (e) to section 114 thereof, with the result that the defence was prejudiced in the matter of showing that the story of approver Ghulam Hussain regarding the deployment of this jeep on the day of the attack stood contradicted by documentary evidence;

 

(xi) The defence was seriously prejudiced by the failure of the prosecution to examine certain material witnesses like the then Chief Minister of the Punjab Mr. Hanif Ramay, the two witnesses of the recovery memorandum of the crime empties from the spot, the then InspectorGeneral pf Police of the Punjab Province Rao Abdul Rashid and others whose list was supplied), and it is necessary that all this additional evidence should be called in the appellate Court or an adverse inference should be drawn against the prosecution;

 

(xii) If full effect is given to the foregoing contentions, then no evidence whatsoever is left on the record for sustaining the convictions recorded by the High Court I but even otherwise the evidence of the important witnesses relied upon by the prosecution, like Ahmad Raza Kasuri (P. W. 1), Masood Mahmood (P. W. 2), $aeed Ahmad Khan (P. W. 3), M. R. Welch (P. W. 4) and Ghulam Hussain (P. W. 31), is full of contradictions, improvements, lies and improbabilities, so much so that even the manner in which Kasuri’s car was fired upon cannot be satisfactorily determined, nor can any conclusion be safely drawn as to the nature of the conspiracy and the persons responsible for its execution, especially the presence of approver Ghulam Hussain in Lahore on that day ;

 

(xiii) The two approvers as well as Saeed Ahmad Khan, who are the mainstay of the prosecution, being men of doubtful character and antecedents, and their evidence being inherently unreliable and full of contradictions, the question of finding any corroboration does not arise ; and that in any event their evidence can be accepted only if it is corroborated by independent evidence, and as in the instant case the corroboratory evidence is that of accomplices, or persons who are no better than accomplices, it is not sufficient to sustain the conviction of the appellant;

 

(xiv) The appellant had no motive to do away with Ahmad Raza Kasuri, as the latter was a political non-entity and any criticism by him of the r policies of the appellant could have no impact, the moreso, as the appellant had other far more important and violent critics such as Khan Abdul Wali Khan; that Kasuri himself had mentioned other nemies; and that in any case, motive could not provide corroboration on a charge of conspiracy;

 

(xv) The High Court has erroneously relied on unproved secure reports and has misread the other documents in coming to the conclusion that the appellant had tried to win back Ahmad Raza Kasuri to the fold of the P. P. P., thus showing his guilty mind;

 

(xvi) The prosecution has failed to prove by positive evidence that the crime empties recovered from the spot had been fired from any of the 25 guns belonging to the Third Battalion of the Federal Security Force, then stationed at Walton ; and the various theories of substitution of the crime empties by the police officers originally handling the case in 1974-75 were completely untenable and in the nature of an afterthought introduced only when the report of the Ballistics Expert was found to be negative ; which report is fatal to the evidence of the approver Ghulam Hussain and of the other witnesses who claim to have supplied S. M. Gs. and ammunition to Ghulam Hussain for the purpose of carrying out attacks on Ahmad Raza Kasuri;

 

(xvii) No weight could be attached to the confessional statements of the co-accused, nor to the evidence of the approvers and witnesses like Saeed Ahmad Khan and M. R. Welch or the police officers of the Lahore District, as they were all acting under the fear of Martial Law, having been pressurised to give false evidence to save their own skins ; or due to promises and inducements ;

 

(xviii) Apart from showing the bias of the Court, camera proceedings of the trial held in violation of the provisions of section 352 of the Criminal Procedure Code and the established principles of holding criminal trials in the open, have vitiated the whole trial, thereby entitling the appellant to acquittal ;

 

(xix) In any case, even if the facts alleged by the prosecution are taken as having been proved, an essential ingredient of the offence of conspiracy, viz. agreement among the conspirators, would be found wanting, as all the officers of the Federal Security Force, from the Director-General down to the A. S. I., were acting under duress and only carrying out orders of their superiors ; and

 

(xx) Finally, section 111 of the Pakistan Penal Code is not attracted to the facts of this case, as the death of Na web Muhammad Ahmad Khan could not be regarded as the probable consequence of the alleged conspiracy between the appellant and Masood Mahmood, and accordingly criminal liability for the same must rest exclusively on those who actually caused it. In any case the appellant was not charged under this section.

 

SUBMISSIONS ON BEHALF OF MIAN ABBAS

 

35. On behalf of appellant Mian Muhammad Abbas it was submitted by Mr. Qurban Sadiq Ikram that although the appellant does not contest the case on facts and admits the various allegations made by the prosecution, yet his case is fully covered by section 94 of the Pakistan Penal Code for the reason that he was under constant threat from his Director-General Masood Mahmood, and his failure to comply would have entailed serious consequences for him and for his family. He next submits that, in any case, this appellant having no motive of his own to do away with Ahmad Raza Kasuri, be acted under duress and compulsion of circumstances which entitle him to mitigation in the sentence awarded by the High Court.

 

SUBMISSIONS ON BEHALF OF REMAINING 3 APPELLANTS

 

36. Mr. Irshad Qureshi, appearing for appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad has stated that his clients had made a clean breast of the whole affair and had admitted the prosecution allegations regarding the part played by them in the whole incident, but it was clear that they had also acted under duress and compulsion of circumstances, and the obligation of their oath as employees of the Federal Security Force. He contended that they were, therefore, protected under sections 76 and 94 of the Pakistan Penal Code as well as section 21 of the Federal Security Force Act, 1973. Lastly, he submitted that, in any case, all these factors were clearly in the nature of mitigating circumstances in the matter of sentence awarded to them under section 302 of the Pakistan Penal Code read with sections 301 and 34 thereof.

 

Bhutto’s Applications Dismissed

 

37. Before dealing with the several contentions raised by Mr. Yahya Bakhtiar on the merits of the case, I would like to dispose of the three applications made by him for recalling certain prosecution witnesses for further cross-examination summoning certain persons as Court witnesses, and others as defence witnesses. On the last day of the hearing of these appeals, viz. 23-12-1978, we announced a short order to the effect that, for reasons to be recorded in the judgment, we were of .the view that no justification had been made out for granting any of these requests. I now proceed to record reasons for this view.

 

(1) Criminal Miscellaneous No. 7 of 1978

 

38. It has been alleged in this application that 15 witnesses of the prosecution were examined and cross-examined in the High Court when the appellant, owing to his illness, was not present in the Court, and the various requests made on his behalf for the adjournment of the proceedings were not only rejected, but the High Court imposed on him illegally and arbitrarily exemption from appearance in the purported exercise of power under section 540-A of the Criminal Procedure Code. It is maintained that the evidence of the said witnesses is, therefore, inadmissible against the appellant as also that the same has caused him great prejudice.

 

39. Upon these allegations, the prayer made in the application is that while the appellant reserves his right to make an application to recall the said witnesses at a proper time, for the present Mr. M. R. Welch (P. W. 4) may be recalled for cross-examination, as being Catholic Christian by faith his evidence was recorded in the High Court on solemn affirmation instead of having been sworn on the Bible.

 

40. Mr. M. A. Rehman, the learned A. O. R. for the State, has filed written objections and opposed the grant of the said application. The main reasons advanced by him in that behalf are that in line with the settled practice pursued in the High Court, the prosecution had informed the defence in advance that Mr. M. R. Welch was to be produced in evidence on 16-11-1977; that he was accordingly produced, examined and cross-examined by Mr. Ehsan Qadir Shah, the learned counsel for Mr. Bhutto ; that neither on the said date nor at any other day was any grievance made by or on behalf of the appellant that the witness should have been examined in his presence, or that being a Christian by faith ought to have been sworn on the Bible ; that Mr. Welch, when he was about to be administered the oath as a witness in the High Court, stated from the dock within the sight and hearing of all, including the learned counsel of the appellant, that he had embraced Islam, and consequently he was sworn on solemn affirmation ; and that under section 13 of the Oaths Act, 1873 (Act X of 1873) no objection can now be taken to his evidence, even if he was actually Christian by faith.

 

41. Now, by going through the contents of the said application, as well as the reply made thereto on behalf of the State, I am satisfied that the application has no merit in it. It is true that the appellant remained absent from the Court from 13-11-77 to 30-11-77 when 15 witnesses were examined and cross-examined in his absence. But even so he does not seem to have been prejudiced. It is a matter of record that all the said witnesses were cross-examined at length by the learned counsel for the appellant ; that the appellant used to meet with his counsel practically every day in jail, and therefore,, it has to be presumed that the cross-examination of the said witnesses was made in accordance with his instructions, or at any rate his approval. Not only this, but no objection seems to have been taken by his learned counsel as to the faith of Mr. Welch when he declared in the open Court that he had converted to Islam, nor indeed was any question put to him in that behalf during his cross-examination. It is of some interest to note here that Mr. Yahya Bakhtiar, who hails from Quetta, stated at the Bar that Mr. Welch had embraced Islam for a brief period in order to be able to marry a Muslim lady. In these circumstances, the prayer made in this application is not only misconceived, but belated, as also that in view of the lengthy cross-examination of the witness, the appellant has not been prejudiced.

 

42. Even otherwise, no objection can now be taken to his evidence in view of section 13 of the Oaths Act, 1873 (Act X of 1873), which runs as under:-----

 

“No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever, in the form in which any one of them is administered shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”

 

This application is, therefore, dismissed.

 

(2) Miscellaneous Application No. 8 of 1978

 

43. The prayer made in this application is that Mr. Agha Muhammad Safdar, the former Deputy Superintendent of Police, Islamabad and Col. Wazir Ahmad Khan, Central Armament Depot, Havelian, may be summoned as witnesses for the following reasons :-

 

That Agha Muhammad Safdar and Nasir Nawaz (P. W. 23) had jointly investigated the case in respect of the Islamabad occurrence in which the car of Mr. Ahmad Raza Kasuri was fired upon ineffectively ; that in respect of the said occurrence Agha Muhammad Safdar had recorded the statement of Mr. Ahmad Raza Kasuri under section 161, Cr. P. C. ; that a copy of the said statement had been supplied to the defence by the learned counsel for the prosecution ; that during the cross-examination of Nasir Nawaz (P. W. 23) the said copy was put to the witness as he was conversant with the handwriting and signature of Agha Muhammad Safdar, but the High Court did not permit the learned counsel for the appellant to do so ; that when the appellant, at a subsequent stage in the High Court, boycotted the proceedings an application was made by Mr. Qurban Sadiq Ikram the learned counsel for Mian Muhammad Abbas, for summoning Agha Muhammad Safdar as a witness, but the same was rejected ; and that it would be in the interest of justice that Agha Muhammad Safdar be summoned as a Court-witness.

 

44. As to Col. Wazir Ahmad Khan, it is said that he is the author of Ammunition Vouchers, namely, Exhs. P. W. 38/ 1, P. W. 38/2, P. W. 38 3 and P. W. 39/2 and hence an essential witness ; that in the High Court the prosecution had applied for permission to produce him as a witness, to which no objection was taken by the defence, but he was not summoned for reasons recorded in the judgment of the High Court. The prayer made in the application is that his evidence being essential, he should be summoned as a Court-witness in the interest of justice.

 

45. Mr. M. A. Rehman, the learned A. O. R. for the State, has filed written objections against this application also. The stand taken by him is that both the said witnesses were not only known to the appellant, but were available and could be produced in Court ; that in any event they could be summoned as witnesses for the defence, as some of the appellants had indeed done so in their defence ; and that the appellant was specifically asked by the High Court if he would wish to lead any evidence in defence but he replied in the negative. In these circumstances, it is alleged that no case has been made out by the appellant for summoning the said two witnesses and his prayer in that behalf ought to be rejected.

 

46. After having heard the learned counsel for the parties I feel that this application must be rejected. It may be noted that in the case of Agha Muhammad Safdar no application was made by or on behalf of the appellant that he be summoned as a Court-witness. It is true that an application was made on behalf of Mian Muhammad Abbas, but he has made no grievance of the fact as to its dismissal, or that he has been prejudiced. The main reason for which the appellant seems to have missed the opportunity to summon Agha Muhammad Sardar as a witness was because he had boycotted the proceedings. But this is hardly a ground which can be urged in support of his said application. The word `boycott’ is unknown in the legal system this country, therefore, the appellant, even if he can be said to have a valid grievance against the conduct of the trial by the High Court, ought not to have boycotted the proceedings, and instead placed on the record of the case his written objections pinpointing therein his reasons owing to which he felt D that he was not getting a fair trial.

 

47. Even otherwise, the summoning of the said two witnesses at this stage would be a waste of time. The object for which these witnesses are required to be summoned has been effectively achieved as Mr. Ahmad Raza Kasuri and Fazal Ali (P. W. 24) who had produced the said ammunition vouchers have been extensively cross-examined on behalf of the appellant in the High Court.

 

48. In these circumstances, I find no force in this application and the same is dismissed.

 

(3) Criminal Miscellaneous No. 9 of 1978

 

49. The prayer made in the third application is that the ten witnesses mentioned therein namely, General (Rtd.) Tikka Khan, Mr. Aziz Ahmad, former Minister of Foreign Affairs, Government of Pakistan, Rao Abdur Rashid, former Inspector-General of Police, Punjab, Director, Press Information Department, Government of Pakistan, Islamabad, Officer concerned from the C. M. L. A. Secretariat, Record Keeper or any other concerned official of the Lahore High Court, Director, F. I. A., Lahore, Mr. Muhammad Ali (Film Star) Gulberg II, Lahore, Jam Sadiq Ali, former Minister, Government of Sind, now in London, and Gbulam Mustafa Khar, the former Governor and former Chief Minister, Punjab now in London, may be summoned as witnesses for the following reasons :-

 

That General (Retd.) Tikka Khan would give evidence to show that it was he who had got Mr. Masood Mahmood transferred from the Ministry of Defence ; Mr. Aziz Ahmad would give evidence to show that he had recomm.-nded Mr: Masood Mahmood to the then Prime Minister for an appointment to some important post, ‘e.g. Director, Intelligence Bureau, and that on his appointment as Director-General, F. S. F. he was happy, as also that in the year 1977 massive interference had taken place in the internal affairs of Pakistan ; Rao Abdur Rashid would give evidence to show that the contents of his affidavit filed along with the additional memorandum of appeal, in this Court, were true ; the Director of Press Information Department to produce the record/Press reports of the public speeches/addresses made to the nation by the C. M. L. A. on Radio/r. V. network from 5-7-1977, as also to produce the Press reports/Press releases of the interviews given by the C. M. L. A. to Urdu Digest and Kehan International of Iran in the month of September, 1977, as reported in the Morning News and daily Musawaat dated 11-8-1977 and 28-8-1977 respectively ; that the officer from the Secretariat of C. M. L. A. also to produce any of the said documents and Press releases, etc. that the record-keeper or any other concerned official from the High Court to produce (i) the record of the complaint case instituted by Mr. Ahmad Raza Kasuri concerning the murder of his father’; (ii) the record of the Habeas Corpus Petition filed by Mst. Roshan Bibi on behalf of Roshan Ali, bearing Writ Petition No. 2434 of 1977, (iii) the record of Habeas Corpus Petition filed on 6-7-1977 by Mr. Aftab Gul, Advocate, for the release of the appellant ; (iv) the record of the bail application in this case which was disposed of by Mr. Justice K. M. A. Samdani on 30-9-1977 ; (v) the record of the Habeas Corpus Petition (No. 3732/77) filed by Begum Nusrat Bhutto against the detention of the appellant and others under M. L. O. 12 ; (vi) the Director, F. I. A., Lahore to produce the record pertaining to the orders of the Federal Government for the re-investigation of the present case, as also the correspondence of the said Government with the provincial police regarding the taking over of the investigation of the case by F. I. A. ; Mr. Muhammad Ali (Film Star) to give evidence to show that the incident in which he was fired upon had nothing to do with the appellant, and the prosecution evidence in that behalf was false ; Jam Sadiq Ali to give evidence to show that the contents of his affidavit sent by him to this Court are true ; and Mr. Ghulam Mustafa Khar to give evidence to show that the contents of his affidavit sent by him to this. Court are also true and correct.”

 

50. Apart from the fact, that none of the aforesaid evidence has any real relevancy to the facts of this case, and is not at all necessary for its decision, the appellant has again pleaded that since he had boycotted the proceedings in the High Court he could not effectively defend himself. This ground, as already mentioned, is not available to him under the law. The application is, therefore, also dismissed.

 

Objections as to the Mode of Trial

 

51. Before embarking upon an examination of the evidence produced and relied upon by the prosecution at the trial, it is necessary to deal with the several contentions raised by Mr. Yahya Bakhtiar as to the legality of the trial itself, as well as about the admissibility of certain pieces of evidence and other allied matters.

 

Question of Prior Trial of Complaint Case

 

52. Mr. Yahya Bakhtiar contended, in the first instance, that the trial stands vitiated for the reason that the complaint cast filed by Ahmad Raza Kasuri should have been tried before taking up the challan case for trial. In support of his contention he relied on Nur Elahi v. The State (P L D 1966 S C 708).

 

53. Before dealing with this contention it would be of advantage to recapitulate essential facts. The F. I. R. .No. 402 (Exh. P. W. 1/2) relating to the present incident in which Nawab Muhammad Ahmad Khan lost his life was disposed of as untraced on 1st of October, 1975, on the basis of the letter of the Inspector-General of Police, Punjab, dated 27th of September, 1975, addressed to the Home Secretary, Government of the Punjab (Exh. P. W. 35/4). Ahmad Raza Kasuri took no further steps until the promulgation of Martial Law on 5th of July, 1977 ; and thereafter he filed a complaint before the Ilaqa Magistrate on 30th of July, 1977, in which an identical motive and version of the incident was given as in the challan charging Zulfiqar Ali Bhutto, Masood Mahmood, former Director-General, Federal Security Force, Saeed Ahmad Khan, former Chief Security Officer to the Prime Minister, and Rao Abdur Rashid, former Inspector-General of Police, Punjab, “for offences under sections 302, 307 and 34 read with sections 120-A/109 and 120-B etc. etc., P. P. C.” The learned Magistrate on the same date ordered that it be entered in the relevant register and sent to the Sessions Court for trial.

 

54. On the motion of Ahmad Raza Kasuri, the complaint was transferred, by order dated 15th of August, 1977, to the High Court for trial by a Division Bench. In the meantime, as a result of the re-investigation of the case which commenced on 24th of July, 1977, on the basis of the F. I. R. (Exh. P. W. 1/2) an incomplete cballan was presented on 13th of September, 1977, in the Court of the Ilaqa Magistrate which was transferred by the High Court, by order dated 13th of September, 1977, for trial by itself on the basis of an application filed by the Special Public Prosecutor ; and the learned Chief Justice, by the same order; constituted a Bench of 5 Judges, including himself, to hear the case. The final challan presented in the Court of the same Magistrate was also sent to the High Court. During the interregnum, as would appear from the order-sheets, no progress in the complaint case was made. However, on 31st of August, 1977, Ahmad Raza Kasuri had showed his inclination to proceed with the complaint, as he was not satisfied with the statement of the learned Assistant Advocate-General that he was still not in a position to state whether the challan was intended to be filed in this case. He was directed to submit a list of witnesses with their addresses and the gist of their depositions. On the next date of hearing the Division Bench without issuing process transferred the complaint case to the larger Bench trying the challan case by order dated 18th of .September, 1977. The challan case was tried and concluded by judgment dated 18th of March, 1977, with the awareness of the complaint case -pending before that Bench.

 

55. Adverting now to the contention that the violation of the procedure laid down in the above-cited case has cau3ed prejudice to the appellant, it may be stated at the outset that the facts of the two cases are not parallel, as in the precedent case for the murder of Muzaffar Paracha, Nur Elahi had lodged a report with the police naming Ch. Zafarul Haq, Ihsanul Haq and Nawazul Haq as the alleged murderers. The police, on investigation, found Ch. Zafarul Haq and Nawazul Haq to be innocent and mentioned their names in Column No. 2 of the challan, and instead prosecuted Ch. Ikram and Banaras as culprits. Nur Elahi, thereupon, filed a complaint giving his version of the incident as set forth in the First Information Report. Consequently, there were two versions of the same incident with two sets of culprits, and a difficulty arose as to ‘tow the two cases should be dealt wits at the committal stage, which was resolved by the High Court in the manner that the two cases should be consolidated for the purpose of recording evidence; and that common witnesses to both the cases should be produced only once and examined first by the State Prosecutor and then by the counsel for the complainant and thereafter they should be cross-examined by the counsel for the accused. The same procedure was laid down for examining witnesses not mentioned in the challan but called by the complainant. The Inquiry Magistrate by separate orders committed the two sets of accused for trial to the Court of Session.

 

56. The complainant .made an application for trying the two cases separately, but the Additional Sessions Judge ordered the joint trial of the two sets of accused, which order was challenged in the High Court, and set aside. The High Court directed that the challan case should be tried first and the common witnesses in the two cases should be examined only once and their evidence read in both the trials. It was further laid down that any additional evidence which the complainant wished to lead in his case should be recorded after the conclusion of the evidence in the challan case, and the judgments should be pronounced simultaneously. This matter came up before this Court by special leave, and it was held that a fair procedure would be for the trial Court to take up the complaint case first for the reason as under :-----

 

“This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution.”

 

57. In the instant case the version is the same which is not the feature in. the above-cited case ; and as for the accused cited in the complaint case, the appellant is common in both the cases, whereas Masood Mahmood who would have also been an accused in the challan case has been granted pardon and examined as an approver. Saeed Ahmad Khan is a witness in the challan case, while Rao Abdur Rashid is neither a witness nor an accused in that ease ; and it may be stated that the complainant has not implicated either of them as accused in his evidence in the challan case. Therefore, there was no necessity for a separate trial of the two cases when, technically speaking, there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of .far Elahi, but to say that invariably it should be E followed even if the facts are distinguishable is not correct, as it does not E amount to a declaration of law. Having held so, we might also point out that the objection to the trial, if any, should have been taken before the trial Bench ; and not having done so, it is too late in the day to urge that it has caused prejudice to the appellant, when factually none is shown. Accordingly, this contention has no force.

 

58. I shall now deal with the objections raised by the learned counsel for appellant Zulfiqar Ali Bhutto that a considerable amount of evidence, and he gave details, had been admitted and used at the trial in violation of the provisions contained in sections 32, 30 and 10 of the Evidence Act, which must now be excluded from consideration in arriving at any findings in his appeal.

 

Objections under sections 32 and 60 of the Evidence Act and hearsay evidence

 

59. In the course of evidence and also at the stage of the arguments in the trial Court objections were: raised against the admissibility of pieces of evidence in the depositions of prosecution witnesses in which they orally attributed certain statements and conduct to Abdul Hamid Bajwa who was at the relevant time serving as’, the Officer on Special Duty for the Chief Security Officer to the Prime Minister of Pakistan ; Abdul Ahad, the then Deputy Superintendent of Police., Ichhra, Lahore who supervised the investigation of this case by the local police in 1974-i5 ; and Malik Haq Nawaz Tiwana, the first Director-General of the Federal Security Force. All the three had died before the commencement of this trial. The precise objection raised before the learned trial Bench was to the effect that the statements and conduct attributed to them by the prosecution witnesses in their evidence constituted hearsay evidence of the dead persons, which was not admissible under any of the clauses of section 32 of the Evidence Act. But the High Court repelled the objection as discussed in paragraphs 360 to 376 -of the judgment under appeal and held that the pieces of evidence in question were admissible under clauses (2) and (3) of section 32 of the Evidence Act. But in this Court, it was vehemently argued by the learned counsel for Zulfiqar Ali Bhutto appellant that this view formed by the learned trial Bench was wholly untenable and the objectionable pieces of evidence do not properly fall under clauses (2) and (3) of section 32 of the Evidence Act and are, therefore, inadmissible in evidence.

 

60. In this connection the, entire argument of the learned counsel for the appellant as well as the findings recorded by the learned trial Bench proceeded on the supposition that the pieces of evidence in question constituted hearsay evidence. The general rule is that all oral evidence must be direct. Section 32 of the Evidence Act is operative as an exception to this general rule against hearsay evidence. However, it was submitted by the learned State Counsel that the pieces of evidence in question did not constitute hearsay evidence, and were admissible as direst oral evidence deposed to by the prosecution witnesses. In this view of the matter, according to the learned State Counsel, any recourse to the provisions of section 32 of the Act was by and large misconceived.

 

61. I shall therefore, first deal with this last-mentioned contention. Indeed in this Court before us much confusion was raised in defining hearsay evidence. Section 3 of the Evidence Act defines a “fact” to mean and includes (1) anything, state of things, or relation of things capable of being perceived by the senses ; and (2) any mental condition of which any person is conscious. Section 59 dealing with the mode of proof of facts lays down that all facts, except contents of documents, may be proved by oral evidence. In this connection section 60 further lays down that oral evidence must be direct ; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it ; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it ; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner ; and if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those ground.. This section thus excludes what is commonly known as the “hearsay” evidence.

 

62. In this connection Monir in his invaluable treatise on the Law of Evidence, 1974 Edition (Volume I, p. 690) has observed that in English law the expression “direct evidence” is used to signify evidence relating to the fact in issue factum probandum, whereas the terms “circumstantial evidence”, “presumptive evidence” and “in erect evidence” are used to signify evidence which relates only to relevant facts (facts probantia). In section 60 of the Evidence Act, however, the expression “direct evidence” has an altogether different meaning ; it is used in the sense of “original” evidence as distinguished from “hearsay” evidence, and it is not used in contradiction to “circumstantial” or “presumptive evidence”. Thus, under the Act all evidence, whether direct or circumstantial in the English sense, must, in the- sense of the Act, be “direct”, i. e., the fact to be deposed to, whether it is a fact in issue or a relevant fact, must be deposed to by a person who has seen it if it is one which could be seen, by a person who has heard it if it is a fact which could be heard, and by a person who perceived it by any other sense if it is a fact which could be perceived by any other sense; and if the fact to be deposed to is an opinion, it must be deposed to by the person who holds that opinion. According to the learned author this section enacts the general English rule that “hearsay” is no evidence.

 

63. This distinction between direct and hearsay evidence is best illustrated by Wigmore on Evidence, 3rd Edition (Volume V, section 1361), According. to the learned author : “when a witness A on the stand testified, `B told me that event X occurred’, his testimony may be regarded in two ways : (1) He may be regarded as asserting the event upon his own credit, i. e. as a fact to be believed because he asserts that he knows it. But when it thus appears that his assertion is not based on personal observation of event X, his testimony to that extent is rejected, because he is not qualified by proper sources of knowledge to speak to it, (2) But suppose, in order to obviate that objection, that we regard A as not making any assertion about event X (of which he has no personal knowledge), but as testifying to the utterance in his hearing of B’s statement as to event X. To this, A is clearly qualified to testify, so that no objection can arise on that score.

 

64. In this connection Phipson on Evidence (Eleventh Edition, paragraphs 631-32) has observed that it is a fundamental rule of evidence at common law that hearsay evidence is inadmissible. Simple as this fundamental is, in principle if not in application, there nonetheless exists “a superstitious awe-about having any truck with evidence which involves A’s telling the Court what B said.” Conspicuous uncertainty exists amongst practitioners, Magistrates and Judges as to what evidence does and does not fall within the hearsay rule. One of the -reasons, according to the learned author, for this widespread misunderstanding is the failure to appreciate that the hallmark of a hearsay statement is not only the nature and source of the statement but also the purpose for which it is tendered. In this connection the learned author in paragraph 638 has by way of elaboration observed that in Subramaniam v. Public Prosecutor ((1956)W L R 965 (PC)), the position was summarised in this way “Evidence of  statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made”.

 

65. Phipson in paragraph 643 has drawn the distinction between the original (term used by the English writers for the term direct within the meanings of section 60 of our own Evidence Act I of 1872) and hearsay evidence. He emphasises that out-of-Court statements may constitute either original evidence (where the statement is in issue, or relevant, independent of its truth or falsity), or hearsay (where it is used as an assertion to prove the truth of the matter stated). The key to this distinction is the purpose for which the evidence is tendered. Section 60 of the Evidence Act is based on this concept of the hearsay rule under the common law of England.

 

66. According to Corpus Juris Secundum, Volume 22-A, section 718, pages 998 generally, the hearsay rule excludes extra judicial utterances when, and only when, offered as evidence of the truth of the matter asserted ; it does not operate to exclude evidence of a statement, request or message offered for the mere purpose of proving the fact that the statement, request, or message was made or delivered, where such occurrence established a fact in issue or circumstantially bears on such a fact.

 

67. In Subramaniam v. Public Prosecutor the appellant was found in x wounded condition in the Rangam District in the State of Johore by members of the security forced operating against terrorists. He was tried on a charge of being in possession of ammunition contrary to Regulation 4 (1)(b) of the Emergency Regulations, 1951, of the Federation of Malaya. , He put forward the defence, inter alia, that he had been captured by terrorists -and that at all material times he was acting under what the terrorists said to him, but the trial Judge ruled that evidence of the conversation with the terrorists was not admissible unless they were called. The Judge said that he could find no evidence of duress, and in the result the appellant was convicted of the offence charged and sentenced to death. In allowing the appeal their Lordships of the Privy Council held that the learned trial Judge was in error in ruling out peremptorily the evidence of the “conversation” between the terrorists and the appellant. Evidence of a statement made to a witness by a person who was not himself called as a witness was not hearsay evidence, and was admissible when it was proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. Statements could have been made to the appellant by the terrorists which, whether true or not, if they had been believed by the appellant, might within the meaning of section 94 of the Penal Code of the Federated Malay States, reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.

 

68. In Sin. Bibhabati Devi v. Ramendra Narayan Roy and others (AIR 1947PC19) the relevant issue that arose was as to whether the plaintiff-respondent was the Second Kumar Ramendra Narayan Roy of Bhowal who was still alive. The two Courts in India had concurred in finding in favour of the plaintiff respondent on this issue. On appeal by special leave their Lordships of the Privy Council observed that whether the apparent death of the plaintiff took place shortly before mid-night or at dusk was the crucial point in the case and the witnesses stated that while they were seated in a common room in a sanitorium at about 8 p. m. a man came with the news that the plaintiff was just dead, and he made a request for men to carry the body for the cremation and the question was as to the admissibility of the evidence of these witnesses. In that connection the Court held :-

 

“Their Lordships are of opinion that the statement and request made by this man was a fact within the meaning of sections 3 and 59, Evidence Act, 1872, and that it is proved by the direct evidence of witnesses who heard it, within the meaning of section 60, but it was not a relevant fact unless the learned Judge was entitled to make it a relevant fact by a presumption under the terms of section 114. As regards the statement that the Kumar had just died, such a statement by itself would not justify any such presumption, as it might rest on mere rumour, but, in the opinion of their Lordships, the learned Judge was entitled to hold, in relation to the fact of the request for help to carry the body for cremation, that it was likely that the request was authorised by those in charge at Step Aside, having regard to “the, common course of natural events, human conduct and public and private business”, and therefore to presume the existence of such authority.”

 

69. The man who had brought the news and the request in connection with the death of the Kumar of Bhowal was neither identified nor examined as a witness. In spite of this the Privy Council held that the statement and request made by this man was a fact within the meaning of sections 3 and 59, Evidence Act, and that it stood proved by the direct evidence of the witnesses who heard it, within the meaning of section 60 of the Act. These observations by their Lordships of the Privy Council are highly pertinent to the mode of proof of a fact in accordance with section 60 of the Act. The rest of the observations by the Privy Council relate to the relevancy, of this evidence to the facts of that case only.

 

70. Under the Indian Jurisdiction in Umrao Singh and others v. State of M. P. (A I R 1961 Madh. Pra. 45) the High Court in relying on the observations of Lord Parker, C. J. in R. v. Willis ((1960) 1 W L R 55) held that there is a distinction between factum and truth of a statement. Evidence of a statement made to a witness by a person who is not himself called as witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.

 

71. But in reply learned counsel for the appellant relied on Malik Muhammad Ishague v. Messrs Erose Theatre and others (PLD 1977SC109). In that case the dispute came upto the Supreme Court arising out of a suit tried on the original side of the former High Court of Sind & Baluchistan. In the plaint it was averred that the firm running the business of the Erose Cinema was formed as a result of the partnership deed dated 31-12-1948. In that connection it was pleaded that Mst. Qamar Bano senior widow of Parekh and Mst. Samad Begum sister and Mst. Bismillah Begum step-mother of Rizvi were benami partners for Parekh and Rizvi respectively. In that connection in the evidence Mst. Amine Bai, junior widow of Parekh admitted that she was once told by her husband that Mst. Qamar Bano was shown in the’ deed of partnership as a farzi partner only to save income-tax. In holding that this statement attributed to the husband was not admissible under any of the clauses of section 32 of the Evidence Act, this Court observed;-----

 

“ .... ... .... the correct position appears to be that this statement is not admissible under any of the clauses of section 32 of the Evidence Act. Evan otherwise, a perusal of the lengthy statement made by this lady leaves no doubt that she had no first-hand knowledge of the affairs of her husband; and a finding as to the legality or otherwise of the 1948 partnership could hardly be based on her evidence. She did not even remember as to when she married the late M. C. Parekh. We would not, therefore, attach any importance to any admission elicited from her on the question of the evasion of income-tax.”

 

In that case the purpose behind the statement attributed to the deceased husband through the mouth of the lady was to prove the correctness of the real issue raised in the case as to whether these ladies were benami partners only and this statement constituted hearsay evidence and could not be used as direct evidence for that purpose under section 60 of the Evidence Act. Even as the statement of a dead man it was not covered by any of the clauses of section 32 of the Act and was therefore, held to be inadmissible.

 

72. Mr. Yahya Bakhtiar also referred us to Emperor v. Nga Hlalng (A I R 1928 Rang. 295), Gulzaman Khan v. Emperor (A I R 1935 Pesh. 73), Kashi. Nath Panday v. Emperor (A I R 1942 Cal. 214), Yenkata Reddy v. Emperor (A I R 1431 Mad. 689), Sh. Aslauddin v. Emperor (A I R 1938 Cal. 399), Channu and others v. Emperor (A I R 1948 Cal. 125), Khurshld Ahmad v. Maqbool Ahmad (P L D 1964 Kar. 356), and Pahlwan and 4 others v. The State (P L D 1975 Kar. 847). All these cases are distinguishable for the simple reason that in each one of them the evidence of a statement made to the witness concerned by a person, who was not himself called as a witness, was sought to be relied upon in order to establish the truth of what was contained in the statement of that other person in support of the conviction, and was, therefore, rightly held to be inadmissible as hearsay evidence to prove the truth.

 

73. In the light of this discussion it is necessary now to carefully examine the objection raised before us in this Court against the admissibility of the specified pieces of evidence of the witnesses attributing statements, acts, and conduct to the dead persons. In this connection during the course of the arguments, the learned counsel for the appellant filed a chart in which he has tabulated the pieces of evidence against which he pressed his objection before us at the hearing. It shall be convenient to deal with them one by one in the light of the above discussion.

 

(1) According to P. W. 2 Masood Mahmood between 12-4-1974 and 23-4-1974, before his actual appointment by the then Prime Minister as the Director-General, Federal Security Force, he was visited several times, by Mr. Saeed Ahmad Khan, the then Chief Security Officer to the Prime Minister and his Assistant, late Abdul Hamid Bajwa. In that connection the witness deposed (Vol. I, pages 66-67) that: “During these visits, the latter who is now dead, impressed upon me the fact that if I did not accept the job offered to me, my wife and children may not be able to see me again.” In this statement P. W. 2 Masood Mahmood deposed to the visits by late Abdul Hamid Bajwa. He also deposed that the impression created on him by the deceased was that in case he did not accept the job offered to him the life of his entire family may be in danger. The witness was competent to depose to his meeting with the deceased, and the talk that he had with him and the impression that he gained in that meeting. All this constituted direct evidence of what he himself perceived with, his senses, within section 60 of the Evidence Act and was admissible as such. It is, however, altogether a separate question as to what weight could be attached to the testimony of the witness in the circumstances of the case.

 

(2) P. W. Masood Mahmood stated that the Prime Minister had told him that Mian Muhammad Abbaa had already been given directions to get rid of Mr. Ahmad Raza Kasuri. The witness stated that the Prime Minister then instructed him that he should ask Mian Muhammad Abbas to get on with the job. In that connection ‘the witness further deposed (Volume I, pages 70-71) that “After the Prime Minister bad given me these orders he kept on reminding me and goading me for their execution. This was done by him personally as well as on the green telephone through Mr. Saeed Ahmad Khan and through his Assistant, Mr. Bajwa.” In this passage, according to P. W. 2 Masood Mahmood late Abdul Hamid Bajwa, in his lifetime used to remind him about it on the green telephone. The statement of the witness that the deceased used to remind him about it constituted direct evidence of what he heard from him. It is admissible under section 60 of the Evidence Act to prove simply what he heard and not to prove the truth of that statement.

 

But a portion of this statement of P. W. 2 Masood Mahmood would constitute hearsay evidence if its object was to establish and prove that Zul: iqar Ali Bhutto had in fact deputed late Abdul Hamid Bajwa to remind him about the execution of the order given by him.

 

(3) In his cross-examination, P. W. 2 Masood Mahmood stated that he had knowledge of the fact that arms and ammunition had been given to Jam Sadiq Ali and late Mr. Abdul Hamid Bajwa for operation against the Hurrs, in Sind. He went on to add that after this information became available to him, he noticed a certain amount of coolness in the dealings w4h him by the then Defence Secretary. In that connection the witness further deposed that: “I think in order to ensure that I did not blurt out the secret, the Prime Minister sent Abdul Hamid Bajwa to me to keep my mouth shut (Vol. I, p. 92).” That Abdul Hamid Bajwa came to the witness and represented to him that he had been sent by the Prime Minister to keep his mouth shut constitutes direct evidence about what the witness saw, heard and felt in his meeting with the deceased and to that extent was admissible under section 60 of the Evidence Act.

 

But a portion of this statement would constitute hearsay evidence if ‘its purpose is to prove that in fact Zulfiqar Ali Bhutto had deputed late Abdul Hamid Bajwa on this mission to see P. W. 2 Masood Mahmood.

 

(4) In his cross-examination P. W. 2 Masood Mahmood was asked a question if he knew as to when, where and how this conspiracy was hatched. In reply the witness deposed that when he talked to Mian Muhammad Abbas, after having been asked by the then Prime Minister “He (Mian Muhammad Abbas) told me that the orders in that behalf bad already been conveyed by Mr. Bhutto through my predecessor Mr. Haq Nawaz Tiwana who had directed him to do the needful (Vol. I, p. 100).” This answer was elicited in cross-examination of P. W. 2 Masood Mahmood. He deposed to what Mian Muhammad Abbas, co-accused-appellant had told him that orders in that behalf had already been conveyed by Mr. Bhutto through Mr. Haq Nawaz Tiwana deceased who had directed him to do the needful. This statement of the witness about what Mian Abbas accused told him is admissible to that extent as direct evidence under section 60 of the Act.

 

But any implication from this statement to the effect that Zulfiqar Ali Bhutto appellant had in fact deputed Haq Nawaz Tiwana deceased to appoint Mian Abbas accused for the execution of the plan constitutes hearsay evidence in the mouth of the witness.

 

(5) P. W. 3 Saeed Ahmad Khan deposed that Mr. Abdul Hamid Bajwa (since dead) had direct access to the Prime Minister over the head of others and according to the witness (Vol. I, page 201) “Mr. Bajwa was very elusive being an old police officer and at times he put me off by saying that the political situation in the country was discussed but I knew that he was doing something more than that.” In this statement Saeed Ahmad Khan P. W. 3 has mostly deposed to his own observations and opinion formed about Abdul Hamid Bajwa deceased who was at the time working as his assistant. As such he was competent to depose to what he noticed about him and gathered from his talks and dealings with him as direct evidence admissible under section 60 of the Evidence Act.

 

(6) P. W. 12 Muhammad Asghar, S. S. P, Lahore in his evidence (Vol. 11, pp. 361-362) deposed that: Mr. Abdul Hamid Bajwa met me in connection with this case and questioned me as to why the name of the then Prime Minister was mentioned in the F. I. R. I told him that Mr. Ahmad Raza Kasuri was serious to get the name of the Prime Minister recorded in the F. I. R. and as such we had no other option but to register the case on his written statement. He had suggested that the case could be registered on ‘the statement of any other person. He said that the services of some other person could have been procured to act as a complainant and he could have lodged an F. I. R. so that the name of the Prime Minister could have been avoided.” The witness deposed to the conversation that he had with Abdul Hamid Bajwa deceased about this occurrence and the F.I. R. registered in that connection. It constituted direct evidence about the conversation to which the witness was competent to depose under section 60 of the Evidence Act. The fact that late Abdul Hamid Bajwa had died before the date of the evidence is hardly a ground for excluding this evidence.

 

(7) P. W. 12 Muhammad Asghar, S. S. P., Lahore also deposed about another meeting and his conversation with Mr. Abdul Hamid Bajwa in the Civil Lines Police Station, in the presence of the D. I.-G., Sardar Abdul Vakil Khan. He stated that “He (Abdul Hamid Bajwa) again told that the name of Mr. Bhutto could be avoided. My D . I. G. and myself told him that it was not possible. He asked the D. I: G. about the empties which were recovered from the plea of occurrence. The D. I: G. told him that those were properly sealed. Mr. Abdul Hamid Bajwa remarked that what was the hurry in sealing those empties. I do not know why he asked about the empties.” (Vol. II, p. 362). P. W. 14 Abdul Vakil Khan, D. I: G. has also deposed to this incident. The witness has competently deposed to the conversation that he had in this tripartite meeting in which late Abdul Hamid Bajwa was also present. The statement of the witness about these talks in the meeting in which he also participated constituted direct evidence admissible under section 60 of the Evidence Act.

 

(8) Muhammad Asghar Khan P. W . 12 (Volume II, page 363) further deposed that “As S. S. P., Lahore, I did not have a free hand in the investigation of the case, because during that investigation instructions were being issued by Mr. Abdul Hamid Bajwa and Mr. Saeed Ahmad Khan, which we had to obey. These instructions related to this investigation”. In this statement the witness deposed to his own personal difficulties that he as S. S. P., Lahore did not have free hand in the investigation of this case. According to witness instructions were being issued to them by Abdul Hamid Bajwa and Saeed Ahmad Khan P. W. 2, which they had to obey. . As such he was the best witness competent to depose to them from his own observations and personal knowledge as the direct evidence admissible under section 60 of the Act. The fact that Abdul Hamid Bajwa had died before the evidence did not adversely affect the competency of this witness to appear and depose to them.

 

(9) P. W. 14 Abdul Vakil Khan, the then D. I: G. Police, Lahore Range, Lahore deposed (V ol. II, p. 383) that: “One or two days after the registration of this case Mr. Abdul Hamid Bajwa, who was then attached to the Prime Minister’s House as subordinate to Mr. Sated Ahmad Khan, met me in Police Station, Civil Lines, Lahore. Mr. Asghar Khan, who was then S. S. P. Lahore was also present at the time. Mr. Bajwa enquired from me as to why the name of the then Prime Minister had been recorded in the F. I. R. I told him that the son of the deceased was driving the car at that time and was with the deceased when fired at, and he had given report in writing and thus the name of the Prime Minister could not be avoided. Mr. Bajwa suggested that a report could be recorded on the statement of any other person saying that the fire was opened by some unknown persons and the accused had fled away and the name of the Prime Minister thus could have been avoided. Mr. Bajwa then asked me if he could see empties which had been recovered from the spot. Up to that time the empties had not been sealed and I avoided by saying that the empties had been sealed.” The witness further deposed that: “Mr. Bajwa was very much upset to hear that the empties had been sealed and said as to what was the hurry when the name of the Prime Minister was involved in it.” The witness deposed to his meeting with and conversation he had with late Abdul Hamid Bajwa about the registration of the F. I. R. and the investigation into this case. He was competent to depose to them as direct evidence admissible under section 60 of the Evidence Act.

 

(10) P. W. 14 Mr. Abdul Vakil Khan also deposed that (Vol. II p. 385) : “I remember Mr. Ahad met me after about a fortnight when I enquired from him if any result has been received from the ballistic expert to whom the empties were sent. I was surprised to hear from him that he had delayed the sending of the empties because these were taken away by Mr. Abdul Hamid Bajwa and then he returned to him after two or three days and after that the empties were sent for the examination. I got annoyed with Mr. Ahad and asked him as to why did he hand over the empties to Abdul Hamid bajwa. He told me that Mr. Bajwa contacted him and told him that these empties were to be taken to the Prime Minister’s House to be shown to the high officers and bemuse of this threat these empties were given to him.” P. W. Abdul Vakil Khan was the D. I.-G: at the time. In this portion of the evidence the witness has at first deposed about the enquiry made by him from his subordinate Abdul Ahad, D. S. P. deceased about the empties in question and the conversation he had with him in that connection. He was annoyed to hear from him that late Mr. Bajwa had taken away these empties for 2/3 days to the Prime Minister’s House to be shown to the high officers. This is admissible as direct evidence under section 60 of the Evidence Act merely to prove the conversation between this witness and Ahad deceased. The witness has competently deposed to his talk which he had with Ahad in this connection.

 

(11) In case, however, the object of this evidence is to establish that Abdul Ahad had in fact given the empties to Abdul Hamid Bajwa, then this would constitute hearsay evidence. Similarly, the statement of Abdul Ahad that Abdul Hamid Bajwa had told him that these empties were to be taken to the Prime Minister’s House to be shown to high officers, constituted hearsay upon hearsay evidence of one dead person from another who was also dead and as such this was inadmissible in proof of its truthfulness.

 

(12) P. W. 14 Muhammad Abdul Vakil Khan further deposed that “Most probably I met Mr. Abdul Hamid Bajwa at Civil Lines Police Station on the 12th or 13th of November 1974. I did not ask Mr. Abdul Ahad in the fortnight after which I made enquiries from him whether he had actually despatched the empties because I was not the Investigating or the Supervising Officer. I do not know the name of the S’ H. O. who was investigating the case but I am aware that Mr. Abdul Ahad, D. S. P. was his “immediate Supervising Officer”. I did not make any enquiries about the time of the recovery of the empties but I had come to know on the morning of the 11th that they had been recovered. (Vol. II, p. 397).” The objection raised against this portion of the evidence is misconceived. The witness has deposed from his own personal knowledge and about the enquiries made by him from Abdul Ahad. This constituted direct evidence admissible under section 60 of the Evidence Act.

 

(13) P. W. 15 Muhammad Waris, another Investigating Officer in the case, deposed as under :----

 

(a) that “Saeed Ahmad Khan and Abdul Hamid Bajwa told us that the name of the Prime Minister had appeared in the F. I. R. and that we should proceed with wisdom and caution. They further told us that Ahmad Raza Kasuri had named the Prime Minister in the F. I. R. dishonestly (vide Vol. II, p. 407)”.

 

(b) that “Saeed Ahmad Khan and Abdul Hamid Bajwa had ordered me to find out disputes over the division of the land of Kasuri family. They had also directed me to find out the family disputes of Nawab Muhammad Abroad Khan with local persons. They had thus kept me busy in accordance with their instructions (vide Vol. II, p. 409)”.

 

(c) that (Vol. II, pp. 409-10) “Saeed Ahmad Khan and Abdul Hamid Bajwa used to keep on repeating that Ahmad Raza Kasuri had named the then Prime Minister Zulfiqar Ali Bhutto dishonestly and falsely”.

 

The witness (Muhammad Waris Khan P. W.) was entrusted with the investigation into this case. He has competently deposed that during the course of the investigation late Abdul Hamid Bajwa had told him that Ahmad Raza Kasuri had named the Prime Minister in the F. I. R. dishonestly and that they should proceed with the investigation with wisdom and caution. He also ordered and instructed him to find out about the family disputes of Nawab Muhammad Ahmad Khan with the local persons. In these statements the witness deposed from his personal knowledge about the talks that he had with Abdul Hamid Bajwa (deceased) and the orders and directions issued to him. This constitutes a direct evidence about which the witness could depose under section 60 of the Evidence Act.

(14) P. W. 34 Abdul Hayee Niazi, S. H. O. Police Station, Ichhra who was the local Investigating Officer, deposed :-----

 

(a) that (Vol. II, p. 625) : “Before I left for the spot Abdul Ahad, D. S. P. told me that he would reach the spot after visiting Model Town. He directed me not to prepare any memo of the articles, which I found at the spot, as the Name of the Prime Minister had been mentioned in the F. I. R. He told me that he would give me further directions on reaching Police Station, Ichhra after his return from Model Town”

 

(b) that (Vol. III, p. 626): “The D. S. P. Abdul Ahad directed me to show the empty cartridges to the Ballistic Expert and car also so that it could be ascertained what type of arms had been used”.

 

(c) that (Vol. III, p. 627): “Abdul Ahad, D. S. P. was my Circle Officer. On 11th of November 1974, at 9/10 p. m. Abdul Ahad, D, S. P. who had his office adjacent to the police station told me to accompany him to Rao Rashid, I. G. Police’s residence. The D. S. P. informed me that the I.-G. had ordered for the production of 24 empty cartridges, lead bullet and cap of the deceased”. .

 

(d) that (Vol. III, p. 623): “The D. S. P. informed me that L-G. Police had kept the 25 empties and lead bullet with him and had returned the cap. The D. S. P. further informed me that I.-G. Police told him that he would pass further orders and investigation should be  conducted according to his orders”.

 

(e) that (Vol. III, pp. 628-29): “On the 13th of November 1974, Abdul Ahad, D. S. P. left for Rawalpindi. He obtained site plan Exh. 34/2 from me and took along the same. Abdul Ahad’ returned from Rawalpindi after two or three days. He sent for me in his office. He showed me a draft with regard to empty cartridges and lead bullet. He told me that he had been given the draft from Prime Minister’s House. The D. S. P. told me to make a copy of that draft. After I prepared its copy, the original was taken back by the D. S. P. Recovery Memo. Exh. P. W. 34/4 was prepared by me and bears my signatures and is a reproduction of the draft given to me.”

 

(f) that “I questioned the D. S. P. about empty cartridges and he told me that it was the order and it was to be complied with otherwise both of us would find ourselves in trouble and not only our services would be terminated but we would also be involved in a case. Under these circumstances I had prepared memo. Exh. P. W. 34/4 (Vide Vol. III, p. 629).”

 

(g) that (Vol. III, p. 630): “On 23rd of November 1974 the D. S. P. gave me twenty-four empty cartridges and ordered me to seal them and send the same- to the Inspectorate of Armaments, G. H. Q., Rawalpindi. I. complied with the orders and prepared a sealed parcel of these empty cartridges.”

 

(h) that (Vol. III, pp. 630-1): “I had sent the lead bullet and the two metallic pieces which had been recovered from the head of the deceased and given to me by Police Surgeon to the Inspectorate of Armaments through Muhammad Sarwar, A. S. L, on the 24th of December 1974 under the direction of the D. S. P.”

 

In the relevant chart filed in Court before us the appellant has raised his objections against the veracity of the. witness (Abdul Hayee Niazi P. W. 34) rather than against the admissibility of these portions of the evidence. The question as to how far reliance could be placed on the testimony of the witness shall be discussed elsewhere at its proper place in the judgment. But as to the admissibility of these portions of evidence it may be observed that the witness was the local Investigating Officer who conducted the initial investigation (for whatever it was worth) into this case under the supervision of his immediate superior namely late Mr. Abdul Ahad, D. S. P., Ichhra. In that connection according to the witness (P. W. 34 Abdul Hayee Niazi) Abdul Ahad, D. S. P. (deceased) had been issuing directions to him from time to time. He was therefore, the best person to directly depose to the instructions and directions issued to him by the deceased and the steps taken by him in pursuance to these, and as such the evidence was admissible under section 60 of the Evidence Act in proof to the limited extent of the instructions and directions issued by the deceased to the witness and the steps taken by him in that connection from time to time.

 

According to the witness on 11-11-1974 late Mr. Abdul Ahad, D. S. P. had informed him that Rao Rashid, I: G. Police had ordered for the production of 24 empty cartridges and the lead bullet and kept them with him. The deceased also told P. W. 34 Abdul Hayee Niazi that the I: G. had told him that he would pass further orders and that the investigation should be conducted on th.- lines according to his orders. Similarly, there is the evidence of the witness to the effect that after Abdul Ahad, D. S. P. had returned from Rawalpindi, he gave a draft recovery memo to him and told him that this was given to him from the Prime Minister’s House. All this evidence constituted hearsay evidence in case the object of these statements was to prove their truth. The witness further deposed that on questioning late Abdul Ahad D. S. P. about the empty cartridges, he told him that it was the order which had to be complied with otherwise both of them would find themselves in trouble. This portion of the evidence in the statement of P. W. 34 Abdul Hayee Niazi to the effect that Abdul Ahad deceased was in fact acting under the orders actually received from his superior in communicating them to him, constituted hearsay evidence.

 

(15) In this connection before us the learned counsel for Zulfikar Ali Bhutto appellant also raised a similar objection against the admissibility of another piece of evidence in the statement of P W. 2 Masood Mahmood (Vol. 1, p.65) when he deposed: “I was asked by Mr. Vaqar Ahmad to call on the then Prime Minister in the morning of the 12th of April 1974. 1 was told that I had to call on Mr. Vaqar Ahmad before this interview. Mr. Vaqar Ahmad was very good to me at that meeting and he informed me that the Prime Minister was going to offer an appointment to me which I must accept (Mr. D. M. Awan at this stage objects to the admissibility of this question on the ground that Mr. Vaqar Ahmad’s name is not mentioned in the calendar of witnesses of this case). He drew my attention to the state of affairs of myself and my wife, to the fact that I had small children, and to a rule which provided for the retirement at any time of officers of Grade 21 and above.” The precise objection raised by the learned counsel for the accused-appellant before the trial -Court was that Mr. Vaqar Ahmad was not mentioned as a prosecution witness in the calendar of witnesses in the case and that therefore P. W. 2 Masood Mahmood was not competent to depose about him and as such this evidence about which Mr. Vaqar Ahmad alone could depose was inadmissible through the mouth of this witness. But there is no force in this objection which is wholly misconceived. P. W. 2 Masood Mahmood could competently depose to the meeting that he had with Mr. Vaqar Ahmad, the then Establishment Secretary and the conversation that he had with him. It is admissible as direct evidence of the meeting and what transpired between them. The witness competently deposed to it from his personal knowledge under section 60 of the Evidence Act. Indeed the prosecution is not obliged to produce each and every witness concerning a fact in issue or relevant fact. This may be depending on the circumstances in each case to affect the weight to be attached to the evidence but not its relevancy.

 

74. As a result of this discussion, I find that bulk of the evidence, against which the objections were raised on behalf of the appellant, was admissible as direct evidence under section 60 of the Evidence Act subject to the observation made above. Therefore, to that extent these objections are repelled. In this view of the matter and to the extent indicated above, even the learned trial Bench was not justified in taking it for granted and acting on the erroneous assumption that the entire evidence against which this objection was raised constituted hearsay evidence.

 

75. In this connection, however, on the above analysis, certain specified pieces of the evidence of the witnesses attributing statements and conduct to those who were dead, have been held by me to constitute hearsay evidence. The next question, therefore, to consider is whether they were rightly held by the High Court to be admissible in the evidence under section 32 of the Evidence Act.

 

76. In the evidence, according to P. W. 2 Masood Mahmood, after the Prime Minister had instructed him to ask Mian Muhammad Abbas to get on with the job, he kept on reminding him and goading him for its execution. This was, according to the witness, done by the appellant personally, as well as, on the green telephone through Mr. Saeed Ahmad Khan and “through his assistant Mr. Bajwa”. This statement of the witness that in fact at the instance of the appellant late Mr. Bajwa used to remind him about the execution of his orders constituted hearsay evidence, and is therefore inadmissible.

 

77. The High Court has no doubt observed that such a statement would be admissible under clause (3) of section 32 of the Evidence Act as tending to incriminate the deceased person, but this observation is not based on a full analysis of the position of Abdul Hamid Bajawa and of Saeed Ahmad Khan. In a later part of this judgment I have reached the conclusion that there was no material on the record to show that Saeed Ahmad Khan knew the nature of the assignment entrusted by appellant Zulfiqar Ali Bhutto to Masood Mahmood, when he had asked Saeed Ahmad Khan to remind Masood Mahmood in this behalf. It is, therefore, possible that the reminder given by Abdul Hamid Bajwa to Masood Mahmood may be of the same kind. In the absence of full material on the record it is not possible to conclude that at the time Abdul Hamid Bajwa reminded Masood Mahmood about the mission entrusted to him with regard to Ahmad Raza Kasuri, Abdul Hamid Bajwa was fully conscious of the nature of the assignment. I would, therefore, hold that the statement cannot be said to be covered by clause (3) of section 32 of the Evidence Act.

 

78. Next, Abdul Hayee Niazi P. W. 34 has deposed that on 11-11-1974 late Abdul Ahad, D. S. P.. Ichhra, Lahore, had told him that Rao Rashid, the then Inspector-General of Police had sent for the production of the 24 empty. cartridges, and lead bullet and kept them with him. He further told the witness that the Inspector-General had further said that he would pass further orders and the investigation should be conducted on the lines E0ording to his orders. Moreover, according to P. W. 34 Abdul Hayee Niazi, after Abdul Ahad deceased had returned from Rawalpindi, he gave him a draft and told him that this was given to him from the Prime Minister’s House. It was in accordance with it that he prepared the recovery memo in Question for the recoveries of the empties. According to the witness when he questioned late Mr. Abdul Ahad, D. S. P. abut the empty cartridges, he told him that .it was an order which must be obeyed, otherwise they would find themselves in trouble.

 

79. As already discussed above all this evidence and statements attributed to Abdul Ahad deceased, who was at the relevant time the D. S. P., Ichhra supervising- the investigation into this case, constituted hearsay evidence. As such public servant it was his duty to see that the investigation was conducted fairly on the right lines. But, in case the above conduct and statements attributed to him are believed, then there is hardly any doubt that he would have been criminally liable for knowingly misdirecting the investigation along incorrect lines under sections 217, 218, 506, P. P. C. read with section 29 of the Police Act. In this view of the matter therefore, these statements and conduct attributed to Abdul Ahad deceased by P. W. 34 Abdul Hayee Niazi are admissible in evidence under section 32(3) of the Evidence Act.

 

80. In this connection an objection was also raised against the evidence of Ashiq Mohammad Lodhi P. W. 28. He was working as the Acting Assistant Director in Headquarters F. S. F., Rawalpindi in January 1975. He deposed that late Abdul Hamid Bajwa had sent for him in January 1975. He accordingly went to see him in the Prime Minister’s, House. He ordered him to give the description of the gunman of Ahmad Raza Kasuri who accompanied him to the National Assembly, Cafeteria and the gallery. It was contended that this part of the statement attributed to Abdul Hamid Bajwa (who had already died) was not admissible under section 32 of the Evidence Act. But there is no force in this objection. P. W. 28 Ashiq Mohammad Lodhi competently deposed to the verbal order issued by the deceased asking him to find out the particulars of the gunman of Ahmad Raza Kasuri. He deposed to this directly from his personal knowledge and as such his evidence is admissible under section 60 of the Evidence Act. In that connection the witness deposed that he complied with the order of Abdul Hamid Bajwa and sent a description of the gunman. He further deposed that he had sent his report Exh. P. W. 28/1 along with the covering letter (Exh. P. W. 3/2-T) which bears his signatures addressed to Mr. Abdul Hamid Bajwa. This letter stands duly proved by the testimony of its author, P.W. 28 Ashiq Mohammad Lodhi himself. In this connection I may, however, add that with this letter he had enclosed a source report of the Intelligence Cell F. S. F., Headquarters, Rawalpindi, concerning the gunman of Ahmad Raza Kasuri. But it does not appear that the witness was himself its author who was not produced to prove it. In Islamic Republic of Pakistan v. Abdul Wall Khan (PLD1976SC57) it was held that for the purposes of a judicial inquiry the source or intelligence reports cannot be of any assistance at all unless the sources themselves are produced for giving the evidence. In the circumstances the report Exh. P. W. 28/1 containing the particulars of the gunman was not duly proved in the evidence and must be excluded from the evidence. But for this however, the evidence of P. W. 23 Ashiq Mohammad Lodhi is otherwise admissible on the point and can be relied upon.

 

81. Before us objections were also raised against the admissibility and the mode of proof of the reports submitted by late Mr. Abdul Hamid Bajwa to the Prime Minister (Z. A. Bhutto) from time to time. These documents were proved by P. W. 3 Mr. Saeed Ahmad Khan, the then Chief Security Officer to the Prime Minister. At the time late Abdul Hamid Bajwa was attached under him as Officer on Special Duty. He deposed that a file in three volumes (Exh. P. W. 3/1, P. W. 3/2 and P. W. 3/3) was maintained under his supervision about the “Activities of Ahmad Raza Kasuri, M. N. A.”. The witness proved some of the reports on the file Exh. P. W. 3/1 bearing the signatures of late Abdul Hamid Bajwa identified by him. Exh. P. W. 3/1-A, Exh. P. W. 3/1-B, Exh. P. W. 3/1-C and Exh. P. W. 3/1-D are the secret reports submitted by late Mr. Abdul Hamid Bajwa to the Prime II Minister during December 1973 enclosing therewith secure reports about certain telephone calls received by Ahmad Raza Kasuri from third persons. The secure reports enclosed by Bajwa with his secret report are not sighed by their respective authors nor have they appeared in the witness-box. As such these have remained unproved on this record and cannot be read in the evidence. In this connection all that can be said from the secret reports and endorsement made thereon by the appellant is that Ahmad Raza Kasuri was kept under surveillance and his telephone was also tapped. Exh. P. W. 3/2-R and Exh. P. W. 3/2-B are the reports sent by Abdul Hamid Bajwa endorsing therewith the source report (Exh. P. W. 28/1) to the Speaker of the National Assembly and the Deputy Inspector-General, Police, Rawalpindi.

 

82. In addition to these then there are the reports Exhs. P. W. 3/2-C, P. W. 3/2-F, P. W. 3/2-J. P. W. 3/2-K, P. W. 3/1-L, P. W. 3/2-N, P.W. 3/2-O and P. W. 3/2-Q submitted by late Mr. Abdul Hamid Bajwa from time to time during 1974-75, about his talks with and the activities of Ahmad Raza kasuri and the efforts made by him to bring him back to the folds of Pakistan People’s Party. As already stated above, these were proved by P. W. 3 Saeed Ahmad who produced from the record maintained under him and had identified Bajwa’s signatures on them. These reports were submitted by the deceased to the appellant in the ordinary curse of business or in the discharge of professional duty and were admissible in the evidence under section 32(2) of the Evidence Act. In the context of this provision the term “business” includes trade, profession, occupation and calling of every kind. In Keolapati v. Raja Amar Krishan Narain Singh (AIR 1939 P C 249), the question was whether a certain talukdar had embraced Islam, a letter written by the Deputy Commissioner to the Commissioner about the conversion and reporting that the estate of the talukdar should be taken under the Court of Wards, was held admissible under clause (A I R 1925 All. 413) of section 32 of the Act. So also a post-mortem report submitted by a Civil Surgeon was held admissible as a statement made by a dead person in the ordinary course of business and in the discharge of his .professional duty in Mohan Singh v. King Emperor (2), under this clause. There are also the T. A. bills of Abdul Hamid Bajwa Exh. P. W. 3/5, Exh. P. W. 3/6, Exh. P. W. 3/7, Exh. P. W. 3/8, Exh. P. W. 3j.9 and Exh. P. W. 3/10 bearing his signatures. They were produced from official custody and were proved by P. W. 3 Saeed Ahmad Khan who identified the signatures of late Mr. Abdul Hamid Bajwa on them.

 

Re : Section 10, Evidence Act embodying a special rule as to admissibility of evidence In conspiracy cases.

 

83. Mr. Yahya Bakhtiar, learned senior counsel for Zulfikar Ali Bhutto appellant, further argued before us that the learned trial Bench acted illegally in admitting evidence pertaining to the charge of conspiracy and its use against the accused contrary to the provisions of section 10 of the Evidence Act. He submitted that according to this section the prosecution evidence in proof of the conspiracy had to be produced in two stages ; at first to establish that in this case there are reasonable grounds to believe that the accused had conspired together to commit the offence ; and only after the ground was thus prepared and the foundation laid, the evidence should have been produced, in the next stage, about anything said, done or written by any one of them in reference to their common intention during the continuance of the conspiracy, so as to be relevant against each of the other accused believed to be so conspiring, both for the purpose of proving the existence of the conspiracy and also for showing that each one of them was a party to it. But, according to the learned counsel in this case the entire prosecution evidence at the trial was produced at a stretch in utter disregard of this provision of the law and to the great prejudice of the appellant. Moreover, the learned counsel submitted, prosecution had failed to establish that there were reasonable grounds to believe that these accused had conspired together to commit the offence and in the absence of any prima facie proof to that effect, the provisions contained in section 10 of the Act cannot be invoked so that the evidence led about anything said, done or written by any one of the accused who was allegedly a party to the conspiracy could not be relevant against the other accused and cannot be read against them. In this connection, in particular the learned counsel submitted that the evidence of P. W. 2 Masud Mahmood approver is tainted and could not be relied upon for this purpose under section 10 of the Act, and this by itself was not sufficient to form any reasonable ground to believe about the existence of the conspiracy generally and that the accused were parties to it.

 

84. In reply Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, repudiated these contentions advanced on behalf of the appellant and submitted that these were based on a misinterpretation of section 10 of the Evidence Act. He explained that section 10 of the Evidence Act does not prescribe any sequence in which the entire evidence must be adduced under it. It merely regulates the use of such evidence, when and how it is to be evaluated and put to use against the co-conspirators. According to him, in the circumstances of this case the testimony of the approver recorded in Court on solemn affirmation about anything said, done or written by any one of the conspirators, in reference to their common intention and during the continuance of the conspiracy, is relevant against each of the other conspirators and can be used against them at the hearing. He further submitted that it was sufficiently cogent to fulfil the requirement of section 10 of the Act in forming the opinion that there are reasonable grounds to believe that the accused, including the appellant, had conspired together in this unholy and criminal alliance and also to warrant a finding in support of the prosecution case about the existence of this conspiracy and its members beyond any reasonable doubt.

 

85. We have carefully considered these contentions advanced before us by the learned counsel for the parties on this part of the case. Section 10 of the Evidence Act is a special provision regarding the rule of evidence applicable to cases of conspiracy. It lays down that ;--

 

“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence ‘or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such ,person was a party to it.”

 

86. In criminal law a party is not generally responsible for the acts and declarations of others unless they have been expressly directed, or assented to by him ; “nemo reus est nisi. mens sit rea”. This section, however, is based on the concept of agency in cases of conspiracy. Conspiracy connotes a partnership in crime or actionable wrong. A conspirator is considered to be an agent of his associates in carrying out the objects of the conspiracy and  anything said, done or written by him, during the continuance of the conspiracy, in reference to the common intention of the conspirators, is a relevant fact against each one of his associates, for the purpose of province the conspiracy as well as for showing that he was a party to it. Each is an agent of the other in carrying out the object of the conspiracy and in doing anything in furtherance of the common design.

 

87. In support of his contention the learned counsel for the appellant relied on two authorities, the first one decided by the Privy Council in H. H. B. Gill and another v. The King (A I R 1948 P C 128) and the other by this Court in Maqbool Hussain v. The State (P L D 1960 S C 382).

 

88. In the first-mentioned case, Gill and Lahiri were convicted by the trial Court for offences under section 165 read with section 120-B, Penal Code. The appellant Gill had joined the Indian Army Ordnance Corps and was serving as the Deputy Assistant Director of Contracts at Calcutta at the relevant time. As such he was responsible for the issue and acceptance of tenders for purchase of material in compliance with the indents made by the proper authorities, while Lahiri appellant was a Contractor engaged in supplies to the Military. Both Gill and Lahiri along with others were charged, Inter alia, with conspiracy to cheat the Government of India in the Department of Supplies by dishonestly and fraudulently inducing its Financial Officers to pay larger sums of money than due to Lahiri in respect of supplies made by him. Gill and Lahiri were also specifically charged, the former for having accepted illegal gratification and the latter for having abetted in the payment of the illegal gratification amounting to Rs. 500 by cheque, under section 161 and section 109, P. P. C. In the evidence the prosecution relied on a diary kept by Lahiri and counterfoils in his cheque-book in which there were notes purporting to refer to Gill in the handwriting of Lahiri, which were compendiously referred to as “Lahiri’s notes”. That these were evidence against Lahiri himself was not denied. The question that however, arose was as to whether they were admissible against Gill co-accused as well. In this connection their Lordships of the Privy Council in relying on the provisions contained in section 10 held:-

 

(a) that apart from the evidence relevant to the specific charge there was no other competent evidence upon which such a reasonable ground for belief could be rested and (b) that the notes were clearly not admissible against Gill unless section 10 could be invoked. It was plainly admitted by counsel for the respondent that it was upon section 10 only that he relied for the admission of such evidence, though it is not clear what course was taken in this respect in the Courts of India. Upon the case going to appeal, the High Court accepted or at least did not reject the explanation given by Gill in regard to the specific charge, and having accepted it were left with nothing upon which they could found the belief that Gill and Lahiri were conspiring to commit an offence. But without this belief they could not under section 10 justify the admission of Lahiri’s notes as evidence against Gill and without such evidence they had no material upon which they could convict him of conspiracy.”

 

Continuing their Lordships of the Privy Council further observed :--

 

But it appears to their Lordships that just as a trial Judge may admit evidence under section 10, when he has such a reasonable ground of belief as is postulated, yet must reject it if at a later stage of the trial that reasonable ground of belief is displaced by further evidence, so the appellate Court, which has from the outset refused that belief, must refuse also to admit evidence which was admissible only upon the footing of the belief being entertained. It is not the true view that in a conspiracy charge of this kind evidence once admitted remains admissible evidence whatever new aspect the case may bear whether in the original or the appellate Court.”

 

89. Indeed these observations by the Privy Council far from supporting the contention advanced at the bar by the learned counsel go against him, as they do not lay down that the entire evidence admissible under section 10 of the Act must necessarily be produced in two separate instalments, one dependent on the other, and not all at once in one stretch. It appears to me that this section rather regulates the mode of the use of the evidence at the H time of its evaluation rather than the sequence in which it is produced in Court.

 

90. In the other case of Maqbool Hussain v. The State cited on behalf of the defence, the facts were that the father of Maqbool Hussain appellant wanted to make a gift of some of his lands to his sons from different wives, including the appellant and for that purpose got mutations Entered by the Patwari. According to the prosecution, the appellant was anxious to have the mutation in his favour sanctioned at an early date and in order to achieve his object he offered Rs. 5,000 as illegal gratification to the Tehsildar, Maqbool Hussain Khan, through Ghulam Yasin Patwari and Yasin Ahmad Girdawar, the two co-accused. The Tehsildar passed on the information to his superiors and it was arranged that the culprits should be arrested in the act of passing the bribe. The Patwari and the Girdawar subsequently went to the house of the Tehsildar and tendered the sum in currency notes in a bag. The Patwari also presented the mutation register containing the mutation in favour of the appellant. There was a raid led by the Additional District Magistrate, the money and the revenue papers were taken into possession, and the Patwari and the Girdawar were arrested. In their statements recorded by the Additional District Magistrate on the spot, they repudiated the allegation that they had brought any money to bribe the Tehsildar, and suggested that they were being made the victims of an intrigue by him. The prosecution sought to establish their case by the evidence of Maqbool Hussain Khan, Tehsildar, one Barkat Ali P. W. 5 who was present when Ghulam Yasin and Yasin Ahmad coaccused were said to have tendered Rs. 5,000 to the Tehsildar, and Mr. M. A. Majid, Additional District Magistrate. The accused asserted their innocence at the trial and Ghulam Yasin and Yasin Ahmad adhered to their allegation that the Tehsildar was inimically disposed towards them. No evidence was adduced on behalf of the prosecution that the appellant, Maqbool Hussain had at any time come into personal contact with the Tehsildar. The case against him, therefore, rested entirely on what Ghulam Yasin and Yasin Ahmad were supposed to have stated to the Tehsildar before or at the time of offering the tainted money to him. The learned Judge who dealt with the case in the High Court was of the opinion that the statements of the accused of the appellant made to the Tehsildar could be taken into consideration against him both under section 10 and section 30 of the Evidence Act. The learned Judge went on to observe that, if these statements had stood alone, it was obvious that the conviction of Maqbool Hussain would not have been justified. He rejected the suggestion that the step-brother of Maqbool Hussain might have had him named falsely. In these circumstances, a question of law was raised in the appeal before the Supreme Court as to whether the alleged statements of Ghulam Yasin and Yasin Abmad, as proved by the Tehsildar, were available to the prosecution against the appellant, by virtue of section 10 of the Evidence Act. In that connection the Supreme Court observed that :----

 

“A plain reading of this section makes it clear that apart from the act or statement of the co-conspirator some prima facie evidence must exist of the antecedent conspiracy in order to attract section 10. Such evidence of a pre-existing conspiracy between the appellant and the two Revenue Officers is conspicuous by its absence in this case. Indeed in the questions that were put to Yasin Ahmad and Ghulam Yasin at the beginning of the trial, it was not even put to them that they had offered money to the Tehsildar in pursuance of any conspiracy with Maqbool Hussain appellant. On the contrary, the questions addressed to them clearly mentioned that the two Revenue Officials had approached the Tehsildar with a request to attest mutation No. 332 in the name of Maqbool Hussain on the promise that they would pay him the sum of Rs. 5,000 as illegal gratification for this favour. In the circumstances, it was idle for the prosecution to throw up any suggestion of a ‘conspiracy at the conclusion of the trial’.”

 

91. This Court further repelled the argument that as the appellant was to get the benefit of the mutation, he must have inspired the attempt to get its sanction expedited. In conclusion the Court disagreed with the opinion of the learned Judge of the High Court to the effect that the statements made by the co-accused were relevant within the meaning of section 10 of the Evidence Act.

 

92. We find that in this case some of the facts are not sufficiently clear’ from the reported judgment of this Court and therefore our attention was drawn to the judgment of the High Court under appeal before the Supreme Court. It shows that the accused were tried under the Chief Martial Law Administrator’s Regulation No. 30 read with Regulation No. 5 for attempting to give bribe to the Tehsildar, Maqbool Hussain Khan. There was no charge of conspiracy against the accused and therefore, the recourse made by the High Court to the provisions contained in section 10 of the Evidence Act was not warranted under the law and the observations made in this behalf were misplaced. Even otherwise this Court merely observed that a plain reading of section 10 of the Evidence Act makes it clear that “apart from the act or statement of the co-conspirators some prima facie evidence must exist of the antecedent conspiracy” in order to attract this provision. But there is hardly any quarrel with this proposition and this case also does not even remotely advance the precise contention raised before us for the appellant.

 

93. It is interesting to find that incidentally a somewhat similar case on facts also came up before the Supreme Court of India in Badri Rat and another v. The State of Bihar (A I R 1958 S C 953). The appellants were prosecuted on charges under section 120-B read with section 165-A of the Indian Penal Code for having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties. The case against them was that on August 24, 1953, when the Inspector of Police who was at the time in charge of the investigation of a case in which the second appellant was involved, was on his way to the Police Station, the appellants accosted him on the road and the second appellant asked him to bush up the case for valuable consideration. Some days later, on August 31, 1953 the first appellant offered to the Inspector at the Police Station a pocket book containing Rs. 500 in currency notes and told him that the second appellant had sent the money through him in pursuance of the talk that they had with him on August 24, as a consideration for hushing up the case. The Courts below accepted the evidence adduced on behalf of the prosecution and convicted the two appellants. On appeal by special leave, it was contended that the Court had no reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence and that the statement of August 31 by the first appellant was not admissible against the second appellant inter alia, because the charge under section. 120-B had been deliberately added in order that the act or statement of the one would be admissible against the other. In that connection reliance was placed on the provisions contained in section 10 of the Evidence Act. But repelling this contention the Supreme Court observed :-

 

“The incident of August 24, when both the appellants approached the Inspector with the proposal that he should hush up the case against the second appellant, for which he would be amply rewarded, is clear evidence of the two persons having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties. Them cannot, therefore, be the least doubt that the Court had reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence. Therefore, the charge under section 120-B had been properly framed against both of them. That being so, anything said or done by any one of the two appellants, with reference to the common intention, namely the conspiracy to offer bribe, was equally admissible against both of them. The statement made by the first appellant on August 31, that he had been sent by the second appellant to make the offer of the bribe in order to hush up the case which was then under investigation, is admissible not only against the maker of the statement-the first appellant-but also against the second appellant, whose agent the former was, in pursuance of the object of the conspiracy. That statement is admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime, as also to prove the existence of the conspiracy itself. The incident of August 24, is evidence that the intention to commit the crime had been entertained by both of them on or before that date. Anything said or done or written by any one of the two conspirators on and after that date until the object of the. conspiracy had been accomplished, is evidence against both of them.”

 

94. The Court went on to further observe that;

 

“Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statements of another. It is only when there is evidence of a concerted action in furtherance of a common intention to commit a crime, that the law has introduced this rule of common responsibility, on the principle that every one concerned in a conspiracy is acting as the agent of the rest of them. As soon as the Court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement or declaration made, by any one of the co-conspirators is, n4turally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the conspiracy. Otherwise, stray acts done in darkness in prosecution of an object hatched in secrecy, may not become intelligible without reference to the common purpose running through the chain of acts or illegal omissions attributable to individual members of the conspiracy.”

 

95. Here it would be useful to make a brief comparative analysis of the ratio laid down in the foregoing three authorities-Gill’s case decided by the Privy Council, Maq5ool Hussain’s case by this Court, and Badri Rai’s case by the Supreme Court of India, bearing on the interpretation of the identical provisions contained in section 10 of the Evidence Act. 1n the first two cases on the findings that in the absence of any prima facie evidence on the record to fulfil the requirement of the opening words of this section or, in other words, in the absence of any evidence to show that there were reasonable grounds to believe that there were two or mare persons who had conspired together to commit the conspiracy, it was held that anything said, done, or written by one of the alleged conspirators was not relevant against the others and the law of agency between them could not be invoked. The third case under the Indian jurisdiction is the converse of the first two. In that case there was evidence on the record, and the Court found reasons to believe about the existence of the conspiracy and was therefore, justified in holding that anything said, done by one of the two conspirators was also relevant against his co-conspirators. But the point that emerges, and which I need stress at this stage, is that there is nothing in the three authorities to lend support to the contention advanced before us on behalf of the appellant that in these cases the evidence under section 10 of the Act bad been produced piecemeal and in two instalments, in the first instance to comply with the requirements of the opening words of the section for holding that there were reasonable grounds to believe about the existence of the conspiracy, and only thereafter in the second round under the latter part of the section for the purpose of holding that anything said, done or written by any one of the conspirators was relevant against the others as well.

 

96. In Bhagwan Swarup Lal Bishan Lal and others v. The Slate of Maharashtra (AIR 1965SC682), and Niamat Singh and others v. The State ,(I LR2 All. 250.) the two ingredients of section 10 were reiterated. The observations in the last mentioned case are directly relevant to the point we are considering here ;

 

“The condition precedent to the application to the rule of law laid down in this section is that there should exist a “reasonable ground” to believe that two or more persons have conspired together if there is no reasonable ground to justify such a belief the special rule of law laid down in this section cannot be applied. It is true that the expression “Were is reasonable round to believe” does not mean “it is proved”. It certainly contemplates something short of actual proof. In our opinion, it means that there should exist prima facie evidence in support of the existence of conspiracy between two accused, and it is then only that anything said, done or written by one can be used against the other.

 

We do not mean to suggest that evidence to prove the existence of conspiracy or participation of the defendants must be tendered first. The order in which evidence is tendered may not be of importance but the section requires that the use of acts and declarations of one conspirator against the other is strictly conditional upon there being reasonable grounds to believe that two or more persons have conspired together. In our opinion, no such prima facie evidence has been given in this case, and, therefore, the special rule of evidence cannot be availed of by the prosecution.”

 

This is a clear pronouncement based on good reasons to refute the contention advanced on behalf of the appellant.

 

97. Again in Balmokand v. Emperor (AIR1915Lah.16), the Court observed that the law, as enacted in section 10 of the Indian Evidence Act, 1872, is much wider and more general than the English Law. Rattigan, J. further observed;

 

“In order, therefore, to decide in the present case whether any act done or statement made or thing written by an alleged co-conspirator is admissible in evidence against any of the accused persons, the test we shall have to adopt is to see, in the first place, whether there is reasonable ground to believe that a conspiracy existed between him and any such person, and in the second place, whether such act, statement or writing had reference to their common intention.”

 

98. In Mirza Akbar v. Emperor (AIR1940PC176), their Lordships of the Privy Council after reference to section 10 of the Evidence Act observed that;

 

“Things said, done or written while the conspiracy was oh foot are relevant as evidence of common intention, once reasonable ground has been shown to believe in its existence.” .

 

99. In Seth Chandrattan  Moondra and 8 others v. Emperor it was stated that;

 

“The application of section 10 of the Evidence Act follows and does not precede the finding that there is reasonable ground to believe a conspiracy exists and certain persons are conspirators. It is only on the basis of a conspiracy between accused persons that section 10 applies and the act or statement of one can be regarded as the act or statement of all, on the principle of agency.”

 

100. The methodology employed in the actual application of section 1 of the Evidence Act is fully demonstrated in these cases to the effect that its actual application follows and does not precede the finding that there is reasonable ground to believe that a conspiracy exists and certain persons are conspirators. It merely speaks of the use of evidence in the case, and the section does not control the sequence in which the evidence should be let in. It appears to that these are but only two phases in the exercise of the application of section 10 of the Act, and not two distinct and separate stage laying down the order in which evidence is to be led. In the initial phase and as a condition precedent under this section; the Court has got to find from evidence aliunde on the record that there are reasonable grounds to believe that two or more persons have conspired together to commit an offence or ar; actionable wrong. After having passed this test, the next phase ire the exercise consists in the actual application of the operative part of this section whereby anything said, done or written by any one of such persons in reference to their common intention, during the continuance of the conspiracy, is treated as a relevant fact against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of conspiracy as for the purposes of showing that any such person was a party to it. In fact this section deals with the mode of evaluation and the use of the evidence brought on the record. It does not provide that the proof of existence of the conspiracy must necessarily precede any proof of the acts and declarations of the co-conspirators of the accused for usel against them.

 

Conclusions as to section 10, Evidence Act

 

101. To sum up, it will be seen that the facts in issue in a case under section 10 of the Evidence Act are, whether there was an agreement for the alleged purpose and whether the accused was a party to it. Evidence in support of either may be given first. It may be that evidence is first allowed to go on the record about anything said done or written by one of the accused in reference to their common intention during the continuance of the alleged conspiracy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable ground to believe about the very existence of the conspiracy and the partners in it This course is thus provisionally admitting the evidence has a merit in it and is conducive to the expeditious disposal of the trial and, if I may say so, suited to the prevailing conditions in this country where the delays in the administration of justice have become proverbial and moral especially because, as in this case, the trial is not by jury. So that the trial Court at the same time is the Judge both on facts and law in the case.

 

101. In this connection it will not be out of place to also refer to the provisions contained in section 136 of the Evidence Act. It, inter cilia, expressly lays down that;

 

“If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

 

In appropriate cases this course could be followed in accordance with the provisions contained in section 136 read with section 10 of the Evidence Act (vide Principles and Digest of the Law of Evidence by M. Monir, Volume I, page 90). Therefore, there can be nothing wrong in the course adopted at the trial of the instant case in recording the evidence at a stretch and not in two separate instalments as advocated by the learned counsel for the appellant.

 

103. This view also coincides with the opinion of some of the modern English writers under the common law even where the jury trial is held. Cross on Evidence (Fourth Edition). Butterworth’s Publication, on page 481 has observed that;

 

In determining whether there is such a common purpose as to render the acts and extra-judicial statements done made by one party in furtherance of the common purpose evidence against the others, the Judge may have regard to these matters, although their admissibility is in issue, as well as to other evidence. This doctrine is obviously liable to produce circularity in argument.

 

“Since what A says in B’s absence cannot be evidence against B of the truth of what was said unless A was B’s agent to say those things, how can one prove that A was B’s agent to say them by showing what A said?”

 

The answer is that the agency may be proved partly by what A said in the absence of B, and partly by other evidence of common purpose. It makes no difference which is adduced first, but A’s statements will have to be excluded if it transpires that there is no other evidence of common purpose ; it is another instance of conditional admissibility.”

 

104. Similarly Phipson on Evidence (Eleventh Edition), on pages 119-120 has said that;--

 

“Where two persons are engaged in a common enterprise, the acts and declarations of one in pursuance of that common purpose are admissible against the other ‘this rule applies in both civil and criminal cases and in the latter whether there is a charge of conspiracy or not. It is immaterial whether the existence of the common purpose or the participation of the person therein be proved first although either element is nugatory without the other.”

 

105. In fact in this connection, it has to be said in fairness to Mr. Yahya Bakhtiar, learned counsel for Zulfiqar Ali Bhutto, that after having heard the learned Special Public Prosecutor in this b-.half, he candidly gave up the objection initially raised by him against the mode of recording evidence under this section at the trial of this case.

 

Meaning of the phrase reasonable ground to believe

 

106. The phrase “reasonable ground to believe” in the context of section 10 of the Evidence Act is not defined in the Act. However, some assistance can be derived from cases defining this or similar phrases used in some other laws. In (Moulvi) Fazlul-Quadar Choudhury v. Crown (PD 1952 F C 19) a somewhat similar term “reason to believe” in the context of the provisions contained in section 4 (1) of the Bengal Criminal Law Amendment Act (1942), came under discussion for its interpretation before the Federal Court of Pakistan. According to this section, whoever has in his possession anything for which there is “reason to believe” to have been stolen, if he fails to account for such possession to the satisfaction of the Magistrate, shall be liable to fine or to imprisonment. In judicially construing the phrase “reason to believe” in the context, the Court observed that “It is not enough to show that there is reason to suspect that the articles found have been stolen or fraudulently obtained. Something more is required and that something is “reason to believe” ; ‘belief’ being a conviction of the mind arising not from the actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of an ‘absolute’ certainty because the accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial.”

 

107. In Niamat Singh and others v. State (I L R 2 All. 25), in interpreting section 10 of the Evidence Act, the Court held that the expression “there is reasonable ground to believe” does not mean that “it is proved.” It certainly contemplates something short of actual proof and only means that there should exist prima facie evidence in support of the existence of the conspiracy between those who were at least believed to be the conspirators. In simple English it means something more than merely acting upon conjectures or suspicion. It reflects a state of mind where the lurking doubts, if any, have been dispelled and in their place an amount of L conviction and assurance has developed giving rise to a belief based on some reasons, although it has not yet fully ripened into an absolute certainty or proof of the thing. -In other words, before this section is pressed into service in the sense that before anything said, done or written by any one of the conspirators in reference to their common intention during the continuance of the conspiracy, is used as a relevant fact against the other fellow conspirators, there must be sufficient evidence on the record for holding, at least, prima facie generally as to the existence of the conspiracy and its members.

 

108. Mr. Yahya Bakhtiar next contended that at any rate under section 10 of the Evidence Act things said, done or written by one of the conspirators, are relevant as evidence of common intention, only if they relate to the time when the conspiracy was continuing. In other words, according to him the words of this section are not capable of being widely construed, so as to include the statement made by one of the conspirators with reference to the past acts, after the conspiracy has already come to an end. In developing his argument, he submitted that on this premises even the evidence of an approver in Court about the things said and done by one of the conspirators in the past in reference to their common intention, is not relevant against the other conspirators.

 

109. On a plain reading of the section, it is clear that things said, done or written by one conspirator in reference to their common intention to be admissible against his coconspirator, must have taken place when the conspiracy is still in existence or in progress. Hence, a declaration or act of one of the conspirators is not admissible in evidence against the other members of the conspiracy, if it was made after termination of the conspiracy. In this connection, there are two necessary- requirements to be fulfilled, viz, that it must be (a) in reference to their common intention and (b) when the conspiracy is still in existence or in progress, before its termination. If these requirements of the section are fulfilled, in a case of conspiracy, a witness may give evidence about the things said, done or written by one of the conspirators in reference to their common intention, during the existence of the conspiracy, so as to be admissible against the other co-conspirators. An approver to whom pardon has been granted is a competent witness. Therefore, section 10 does not cease to apply to anything said, done or written by a conspirator during the relevant period, simply because that conspirator gives evidence as an approver.

 

110. In this connection in Vishindas Lachmandas and others v. Emperor (A I R 1944 Sind I), it was observed that the act of one conspirator is the act of ail; each conspirator is deemed the agent of his fellow-conspirator, and section 10, Evidence Act, does not cease to apply to “anything said, done or written” by a conspirator simply because that conspirator gives evidence as an approver. In Tribuvan Nalh v. The State of Maharashtra (A I R 1973 S C 450), although the facts are a little different, yet its ratio is in point. The Court, while dealing with the evidence given on oath by one of the accused as a defence witness, observed:

 

“Of course, as accused person cannot be compelled to give evidence as a prosecution witness in view of the expression “in disproof of the charges” in section 342-A. But once his evidence as a witness for the defence is on record, tinder sect “on 10 of the Evidence Act, 1872, evidence as to the communications between one conspirator and the other during the time that the conspiracy is going on and relating to implementing that conspiracy, is relevant evidence. The statements by one accused to another and the evidence as to the acts done by him disclosing participation by the other accused in the conspiracy are also relevant.

 

111. In Balmokand v. Emperor (A I R 1915 Lah. 16) and Bhala Nath and others v. Emperor (A I R 1939 All. 567), in spite of the weaknesses inherent in the statements of the respective approvers as witnesses on solemn affirmation in Court, their evidence was relied upon and made use of against the accused on this principle contained in section 10 of the Act. Similarly in R. v. 6.7llagher (15 Cox 291 (C C R)), where two prisoners were jointly indicted for conspiracy, and one of them pleaded guilty, and the other not guilty, the evidence of the prisoner who pleaded guilty was held admissible against the other in support of the indictment.

 

112. In this connection, I find that the following cases cited before us by the learned counsel for the appellant are not in point and are distinguishable. In the leading case under the Common Law of England in Queen v. Blake ((1844) 6 Q B 125). Tye who was a Customs House agent and Blake, a landing waiter, had allegedly conspired for evading custom duty payable on the import of goods. In evidence the prosecution produced an entry in Tye’s day-book in order to prove that the quantity of the goods actually imported was much larger than the duty paid on them. The counterfoil of a cheque issued from the cheque book of Tye was also produced in which an account was written by him showing, as suggesting, payment of a certain sum, and dated after the goods were passed, representing the share of Blake in the mal-profits thus made by the evasion in the payment of the custom duty under the conspiracy. In that connection the Court was of the opinion that Tye’s day-book was evidence of what was done towards the very acting in concert which was to be proved, and was therefore, receivable in evidence against Blake in proof of the conspiracy. As to the counterfoil and the writing on it, it was observed that those were trade after the conspiracy had been carried into effect and therefore, the same could not be used in evidence against Blake. Lord Denman, C. J. in rejecting this document said:

 

“ . . . . . . . on the principle that a mere statement made by one conspirator to a third party on any act not done in’ pursuance of the conspiracy is not evidence for or against either conspirator.”

 

and Coloridge, J. said that it “did not relate to the furtherance of the common object.” The ratio in this case was followed with approval by their Lordships of the Privy Council in Mirza Akbar v. King-Emperor (A I R 1940 P C 176). It may be seen from the discussion that follows that both these authorities are distinguishable.

 

113. In Mirza Akbar v. King-Emperor the facts were that Mst. Mehr Taja arid her paramour Mirza Akbar appellant bad entered into a conspiracy and had hired the services of one Umar Sher to murder her husband Ali Askar deceased. The Additional Sessions Judge, Peshawar, convicted them under section 302/120-B. Their appeals were dismissed by the learned Judicial Commissioner. Peshawar and the appellant filed a further appeal to the Privy Council. Before the Privy Council a contention was raised on behalf of the appellant to the effect that the findings against him were vitiated by the admission of the statement made by Mst. Mehr Taja before the examining Magistrate after she had been arrested on the charge of ‘conspiracy. That statement made in his absence was admitted in evidence under section 10 of the Evidence Act against him by both the Courts below. Their Lordships of the Privy Council in interpreting section 10 of the Evidence Act accepted the contention that the statement of Mst. Mehr Taja was wrongly admitted by the two Courts below against the appellant. But the Privy Council found that on the material before the Court, even after excluding the statement, there was otherwise sufficient evidence in upholding the conviction. On the interpretation of section 10 of the Evidence Act their Lordships were of the opinion that the words of section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence ox the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. Their Lordships of the Privy Council observed that :-

 

“The common intention is in the past. In their Lordships’ judgment the words `common intention’ signify a common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships’ judgment section 10 embodies this principle.”

 

114. In this case their Lordships of the Privy Council have rightly drawn a distinction between communications among conspirators, while the conspiracy was going on, with reference to the carrying out of the conspiracy, and statements made, after arrest or after the conspiracy has ended, by way of description of other events then past. Thus, in substance all that their Lordships of the Privy Council have held is that the statement of Mst. Mehr Taja made outside the trial Court in the absence of the appellant with reference to their past acts done in the actual course of carrying out the conspiracy, after it has been completed, cannot be used against him under section 10 of the Act. The act of making this statement, as such, after the termination of the conspiracy, cannot be held to be “anything said, done or written” by one of the conspirators “in reference to common intention”, as an agent for her co-conspirator so as to bind him with its contents. It may at best be usable against the appellant (co-accused) for whatever its worth, under section 30 of the Act as a confession of a co-accused but not as evidence of anything said, done or written by a conspirator “in reference to their common intention” for the purposes of section 10 of the Act so as to be binding against .aim as well. But all these considerations would be irrelevant in case she was not a co-accused and had appeared as an approver as a competent witness at the trial of the murder of her husband. Then in that event her statement in Court at the trial recorded in the presence of the appellant directly deposing to anything said, done or written by any one of the conspirators in reference to their common intention during the existence of the conspiracy, would have been admissible against him under section 10 of the Act.

 

115. In Mirza Akbar v. King-Emperor the Privy Council on its construction of section 10 of the Act relied on some decisions in India, as for instance in Emperor v. Ganesh Raghunath (I L R 55 Born. 839) and Emperor v. Abani (I L R 38 Cal. 169). But the ratio laid down in these two rulings A is not applicable to the facts of the instant case. In State v. Shankar Sakharam Jadhav and another (A I R 1957 Bom. 226) it was laid down that anything said, done, or written by one of conspirators must be in reference to the common intention and it is difficult to say, once the object of criminal conspiracy is carried out, that any common intention existed with reference to the criminal conspiracy. Where the confessional statements made by accused are made after the object of criminal conspiracy is carried out, the confessional statements refer to past events, and can have no reference to any common intention animating the co-conspirators. No exception can be taken to this principle which is, however, distinguishable and not applicable to the facts in the instant case before us. For all these reasons, therefore, I find that the evidence of the two approvers who have competently appeared as prosecution witnesses, for whatever their worth, could not be brushed aside as irrelevant under section 10 of the Evidence Act against the appellants.

 

APPLICATION OP SECTION 10, EVIDENCE ACT TO THE PRESENT CASE

 

116. Now, the question is whether the prosecution has succeeded in establishing reasonable grounds to believe that there was a conspiracy in this case, so as to attract the application of section 10 of the Evidence Act. Mr. Ijaz Hussain Batalvi submitted that if the evidence of the two approvers is taken into account, then this requirement is amply fulfilled. In the preceding paragraph I have reached the conclusion that there is no legal impediment in the way of considering the direct testimony of an approver, who appears at the trial as a competent witness, for the purpose of determining whether there is reasonable ground or not within the meaning of section 10 aforesaid.

 

117. The evidence of the two approvers Masood Mahmood and Ghulam Hussain need not be recapitulated here at any length, and it would suffice to say that they have given sufficient details of the marine in which the conspiracy was initiated, and subsequently executed through the agency of the Federal Security Force. This evidence prima facie shows that there was, indeed, a conspiracy between the appellants as well as the two approvers to commit the murder of Ahmad Raza Kasuri, and that in execution thereof his father was killed. On the basis of this evidence section 10 would be clearly applicable. It is to be noted that at this stage the question is not whether a conviction can be based on the evidence of the two approvers, but merely whether it furnishes a basis for reasonable ground to believe, that certain persons had conspired to commit a particular offence. This requirement is clearly fulfilled by the detailed evidence of the two approvers.

 

118. Even if for any reason the evidence of the approvers is kept out of consideration for the purpose of determining of application of section 10 of the Evidence Act, there is still ample material to furnish reasonable ground for the belief mentioned in the section. The evidence of the complainant Ahmad Raza Kasuri supported by the documentary evidence as to motive, the oral and documentary testimony of M. R. Welch (P. W. 4), the supporting evidence of Saeed Ahmad Khan (P. W. 3), the identity of the ammunition employed in the Islamabad incident and the present occurrence at Lahore, as well as the evidence of witnesses like Fazal Ali (P. W. 24), Amir Badshah (P. W. 20) and Driver Muhammad Amir (P. W. 19) as to the supply of arms and ammunition from the F. S. F. units, besides the oral and documentary evidence as to the subsequent conduct of appellant Zulfiqar Ali Bhutto, all prima facie go to show that there was, indeed conspiracy involving the present appellants and the two approvers. Her again, the submissions made by Mr. Yahya Bakhtiar as to the value to be placed on these pieces of evidence, and the question of their final admissibility in law are not relevant for the purpose of determining the question of the application of section 10 of the Evidence Act. The cumulative effect of this evidence on the mind clearly is to create a reasonable ground for the belief that the present murder was the result of a conspiracy involving specified persons.

 

119. As a result I am of the view that the learned Judges in the High Court were right in thinking that the requirements for the application of section 10 of the Evidence Act were amply fulfilled in this case. It has already been stated that the section does not require that the prosecution evidence should be led in any prescribed manner.

 

Scope and Application of Section 30 of the Evidence Act regarding confessions and statements made under Section 342, Cr. P. C. by co-accused

 

120. As regards the misapplication of section 30 of the Evidence Act, Mr. Yahya Bakhtiar submitted that the High Court was in error in taking into consideration confessional statements of the co-accused which were in fact self-exculpatory; or were not proved as confessions, as required by section 30 of the Evidence Act, but were made during the course of the trial when the co-accused were examined under the provisions of section 342 of the Criminal Procedure Code, at a stage when the appellant had already been examined under this section and had no opportunity of rebutting or explaining these statements. The learned counsel submitted that in the circumstances these so-called confessions and statements should be altogether excluded from consideration.

 

121. He further contended that the written statements filed during the trial, or during the hearing of the appeal, by some of the co-accused, particularly appellant Man Abbas, could similarly, not be taken into consideration by the Court against the accused other than the makers thereof. 122. 1 find that the High Court has dealt with these questions in paragraphs 587 to 593 of its judgment. The learned Judges have rightly observed that under section 30 of the Evidence Act, the confession of ai co-accused can be taken into consideration not only against the maker thereof but also against the other accused person, but the section does not say that the confession is to amount to proof, and, therefore, there must be other evidence. However, they have also gone on further to hold, relying upon the case of Dial Q,lWh v. Emperor (A I R 1963 Lab. 33), that a confessional statement of an accused made on questions put to him under section 342 of the Criminal Procedure Code is also covered by section 30 of the Evidence Act. On this view of the matter, they have concluded that` it is open to the Court to take into consideration the confessions made by accused Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad as well as the statements made by them under section 3,2 of the Criminal Procedure Code, at least against Mian Abbas. They have added that these confessions and statements confer added strength to the corroboration furnished by the prosecution witnesses to the statement of Ghulam Hussain, approver against Mian Abbas.

 

MEANING OF THE TERM `CONFESSION’

 

123. The first question in the present context is as to what is the meaning of the term confession, as used in section 30 of the Evidence Act. This term is not defined in the Evidence Act, but ordinarily a confession is construed as an acknowledgment in express words, by an accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. A statement in order to amount to a confession must either admit in terms the offence, or at any rate substantially all the P facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. This definition finds support from a number of authorities cited at the Bar by Mr. Yahya Bakhtiar, namely. Sant Ram v. Emperor (A I R 1924 Oudh 188), Sheocharan v. Emperor (A I R 1926 Nag. 117), Raghunath v. Emperor (A I R 1926 Nag. 119), Abdul Jalil Khan and others v. Emperor (A I R 1930 All. 746), Shambhu v. Emperor (A I R 1932 All. 228), yakala Narayan Swami v. Emperor (AIR 1939 P C 47), Ram Bharose and others v. Rex (A I R 1949 All. 132) and Zahid Hassan Khan and others v. The State (P L D 1964 Dacca 600).

 

124. It was, however, contended by the learned Special Public Prosecutor that a statement, partly inculpatory and partly exculpaiory, can also be used under section 30 of the Evidence Act as amounting to a confession. Mr. Batalvi placed reliance in this behalf on Lakhan v. KingEmperor (A I R 1924 AIL 511), Rama KariyappaPichl and others v. Emperor (A I R 1929 Bom. 327), Narain Chandra  Biswas and others v. Emperor (A I R 1936 Cal. 101), Bala Aajhi v. The State of Orissa (A I R 1951 Orissa 168), The State v. Jamalan and others (P L D 1959 Lab. 442) and Ghulam Qad1r v. The State (P L D 1960 S C 254).

 

125. A perusal of the facts and observations appearing in these cases, however, does not fully support the learned Special Public Prosecutor, as there is in fact no departure from the basic definition as given by the Privy Council in the case of Pakala Narayan Swami already referred to namely, ‘a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence’. I find it difficult to adopt or follow any observations to the contrary appearing in these judgments, in view of the clear enunciation of the law by the Privy Council, which is fully in accord with the terms of section 30 of the Evidence Act. The principle underlying the section is that the consequences of self-implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicates another prisoner, it is very difficult, if not practically impossible, to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused. An admission by an accuse person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement party inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him.

 

POSITION IN RESPECT OF S. 342, CR. P. C. STATEMENTS

 

126. The next question is whether an admission of guilt made during the trial under section 342 of the Criminal Procedure Code or otherwise can be taken into consideration against the co-accused, under section 30 of the Evidence Act. Mr. Yahya Bakhtiar placed reliance on Mahadeo Prasad v. King-Emperor (A I R 1923 All. 322), In re : Marudcmuthu Padayachl (A I R 1931 Mad. 820), Mt. Sumitra v. Emperor (A I R 1940 Nag. 287), Malla Mahmadoo and others v. State (A I R 1940 Nag. 287), Ghulam Hussain v. The State Bank of Pakistan (AIR 1952 J & K 49) and Qazi Parvaiz Iqbal and 2 others v. The State (P L D 1976 Kar. 583) in order to contend that a confessional statement made under section 342 of the Criminal Procedure Code during the trial cannot said to be a confession proved in the case for the purposes of section 30 aforesaid, especially when the co-accused against whom it is to be used, bas already been examined by the Court as to the incriminating pieces of evidence appearing against him, and has thus no opportunity to rebut or explain the admission of guilt made by his co-accused.

 

127. The learned Special Public Prosecutor has supported the view taken in this behalf by the High Court by placing reliance on Dial Singh v. Emperor (A I 8.1936 Lah. 337) but this case was not followed in A I R 1940 Nag. 287, P L D 1960 Pesh. 170 and P L D 1976 Kar. 583. He has further referred us to A I R 1930 Bom. 354 which had also taken the view that the statements under section 342 are covered by section 30 of the Evidence Act. In view of the recent judgment delivered by our learned brother Muhammad Haleem, J., as a Judge of the Sind High Court in the case of Qazi Parvez Iqbal and 2 others it is not necessary for me to examine the various cases cited by the learned counsel in support of their respective contentions. Most of the judgments cited at the Bar before us have been noticed in this case, and I find myself in respectful agreement with the conclusions reached by Muhammad Haleem, J., to the effect that “upon a consideration of the authorities we are inclined to hold that section 30, Evidence Act, does no specify the form, the confession may take. It may be judicial o extra-judicial. Judicial confession is one which is recorded in the manner laid down by sections 164 and 364, Cr. P. C. while the extra judicial confession may take the form of a document or other statement. Such document may be filed as the statement made in the courts of the trial. Section 30R provides an exception to the rule that an admission can only be used against its maker under section 21 of the Evidence Act. Therefore, in construing section 30 of the Evidence Act regard must be had to the fact that the confession, which is sought to be used against the co-accused like any other piece of prosecution evidence, must be proved before the prosecution closes its side, so as to provide an opportunity to the accused to rebut it. This being the minimum of a fair trial, the keyword `proved’ must have relation to the stage of trial, otherwise it cannot be used in evidence against him. Concluding, therefore the implication cannot be on the meaning of the word `proved’ in section 3 of the Evidence Act.” I fully endorse this view of the law in respect of 342, Cr. P. C. statements.

 

CONFESSION IS NOT PROOF AGAINST CO-ACCUSED

 

128. One last point arising in this connection may also be disposed of. Relying upon Bhubont Sahu v. The King (P L D 1949 P C 90), Kashmira Singh v. The State of Madhya Pradesh (A I R 1952 S C 159), L. S. Raju v. The State of Mysore (A I R 1953 Bom. 297), Rafiq Ahmad v. The State (P L D 1958 S C (Pak.) 317), Maqbool Hussain v. The State (P L D 1960 S C 382), Ibrahim and another v. The State (P L D 1963 Kar. 739), Shera and 3 others v. The State (P L D 1972 Lah. 563) and Abdul Sattar v. The State (P L D 1976 S C 404). Mr. Yahya Bakhtiar submitted that the confession of a co-accused, even when admissible is not evidence and can only be taken into consideration, but cannot itself form the basis of the conviction of the co-accused.

 

129. This submission indeed has the support of authority. In the case of Bhuboni Sahu, their Lordship3 of the Privy Council observed that “a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction”. The other judgments mentioned by the learned counsel follow the same rule. Nothing was said by the learned counsel for the prosecution to the contrary.

 

POSITION OF CON FESSIONS AND 342 STATEMENTS IN THE PRESENT CASE

 

130. Acting in accordance with the principles brought out in the preceding paragraphs, I would exclude from consideration against appellant Zulfikar Ali Bhutto and Mian Abbas the statements made during the trial by appellants Soofi Ghulam Mustafa, Rana Iftikhar and Arshad Iqbal in answer to questions put to them under section 342 of the Criminal Procedure Code at the close of the prosecution evidence, and after the other two appellants had already been similarly examined. Although, these statements could be said to be proved in terms of section 3 of the Evidence Act, having been made before the trial Court, and although they are self-inculpatory affecting the makers of the statements as well as the other two appellants, yet they cannot be used against the latter for the reason that they were not afforded any opportunity to rebut or explain them. It appears that the High Court has, in fact, used these statements only against Mian Abbas, and not against appellant Zulfikar Ali Bhutto, but even that was erroneous in the light of the legal position explained above.

 

131. For the same reasons, I would also exclude from consideration against appellant Zulfikar Ali Bhutto, the written statement filed by appellant Mian Abbas in this Court, admitting all the allegations made against him, by the prosecution. Appellant Zulfikar Ali Bhutto had no opportunity of rebutting this statement, as it could not be formally put to him is terms of section 342 of the Code; on the contrary at the trial Mian Abbas has pleaded not guilty.

 

132. As regards the confessional statements made by Soofi Ghulam Mustafa, Rana Iftikhar Ahmad and Arshad Iqbal, I find that they were duly proved at the trial by the Magistrates who had recorded them under the provisions of section 164 of the Code. They were also put to the non-confessing accused during their examination under section 342 of the Code at the close of the prosecution case. I further find that these confessional statements fully implicated the makers thereof and also affected the other two appellants. It is true that these three accused have pleaded that they did all the guilty acts attributed to them by the prosecution, under orders and pressure from their superiors, but this plea does not detract from the self-inculpatory nature of their statements, as they admitted substantially all the incriminating circumstances of the offences with which they were charged at the trial. These three confessions have therefore, bee rightly taken into consideration by the High Court in terms of section 30 of the Evidence Act.

 

133. A perusal of the confessional statement made by appellant Mian Abbas under section 164 of the Code shows that he tried to exculpate himself) by laying the blame on approvers Masood Mahmood and Ghulam Hussain and incidentally implicating appellant Zulfikar Ali Bhutto in this crime. In the circumstances, this statement cannot be treated as a confession for the) purpose of section 30 of the Evidence Act and was rightly not used as such by the High Court.

 

Requirements of sections 331 & l64, Cr. P. C. regarding approvers and their statements

 

134. It was next contended by Mr. Yahya Bakhtiar that as both the approvers, namely Masood Mahmood (P. W. 2) and Ghulam Hussain (P. W. 31), had on their own admission, failed to make a full and true disclosure of the whole of the circumstances of the case within their knowledge, as required by section 337 of the Code of Criminal Procedure, they could not be regarded as approvers in the legal sense, and for that reason their evidence could not be brought within the ambit of section 10 of the Evidence Act. The learned counsel further submitted that there was also an illegality in the procedure adopted by Magistrate Mr. Zulfiqar Ali Toor (P. W. 10) inasmuch as he had not examined the two approvers as witnesses in the presence of the accused persons as required by subsection (2) of section 337 of the Code, although he had taken cognizance of the case in terms of section 190 of the Code. It appeared to the learned counsel that in these circumstances the evidence of both the approvers became inadmissible and had to be excluded ; or at any rate much weight could not be attached to it. He placed reliance on Mahla v. Emperor (A I R 1930 Lah. 95), and In re : Arusami Goundan (A I R 1959 Mad. 274).

 

135. In reply it was submitted by Mr. Ijaz Hussain Batalvi that, in the first place, it was not factually correct to say that both the approvers had not made a full disclosure of the facts within their knowledge while giving evidence at the trial, and that at best this criticism could apply to the statements they had made under section 164 of the Criminal Procedure Code soon after the grant of pardon. He pointed out that approver Ghulam Hussain had written a letter to the High Court on the 31st of October, 1977, six weeks before he appeared as a prosecution witness at the trial on the 14th of December, 1977, saying that he had distorted his earlier statement to give some benefit to Mian Abbas, but he now undertook to speak the truth in Court. Similarly, approver Masood Mahmood had also asserted that he was making a full and true disclosure at the trial, although he might have omitted some details in his 164 Cr. P. C. statement. Mr. Batalvi contended that the requirement of law is that the approver must make a full and true disclosure while giving evidence in the case, and that stage arises only during the commitment inquiry or the trial, as a statement made under section 164 of the Criminal Procedure Code is not evidence in the case as defined in section 3 of the Evidence Act. He further submitted that if an approver sticks to the fundamentals then minor variations are of no consequence. I n support of these submissions the learned counsel referred us to Balmokand v. Emperor (A I R 1915 Lah. 16), Bhola Nath and others v. Emperor (A I R 1939 All. 567), and Emperor v. Shahdino Dhaniparto (A I R 1940 Sind 114).

 

136. It will be useful to refer here to the words used in section 337, itself as to the purpose for which pardon is to be tendered and the condition which must attach to such pardon. The section lays down that the object of the pardon is to “obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence”; and the condition attached to the tender of pardon is that the person concerned must “make a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof”. Subsection (2) of the same section requires that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.

 

137. It will be seen that there is no provision in section 337 requiring that immediately after the grant of pardon the person concerned shall make a statement under section 164 of the Criminal Procedure Code before the commencement of the inquiry or trial. It seems, however, that in practice an approver’s statement is generally recorded under section 164 of the Criminal Procedure Code soon after the grant of pardon. The object of adopting such a procedure appears to be to bind the approver to a particular version of the incident of which he has knowledge, and the question is whether his failure to make a true and full disclosure of all the facts during the course of such a statement would either deprive him of his status as approver, or otherwise render him liable to action under the law.

 

138. It seems to me that the answer to both the parts of this question must be in the negative. As already stated, the object of the grant of pardon is to obtain the evidence of the person concerned in regard to the offence to which he was privy in some manner or the other. Evidence as defined in section 3 of the Evidence Act means and, includes (i) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence ;

 

(ii) All documents produced for the inspection of the Court ; such documents are called documentary evidence.

 

The word “Court” is again defined as including all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. Now, in the present case Magistrate Zulfiqar Ali T00’r, who recorded the statements of both the approvers under section 164 of the Criminal Procedure Code, was not authorized to take evidence for the reason that since 1972 the commitment proceedings in cases triable by the Sessions Court had en abolished, and subsection (3) of section 190 of the Code suitably amended to provide that a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. As a result, the true position which emerges is that the statement recorded by Mr. Toor under section 164 of the Criminal Procedure Cod could not be regarded as evidence in this case. At best they are previous statements of the two approvers which could be used by the defence for the purposes of their cross-examination.

 

139. It is true that subsection (2) of section 337 contemplates that every person accepting a tender of pardon shall be examined as a witness in the, Court by the Magistrate taking cognizance of the offence and in the subsequent trial, if any; but it is clear that this provision has to read in conjunction with the relevant part of section 190 of the Code which deals with the subject of cognizance of offences by Magistrates. With the abolition of commitment proceedings there should have been a corresponding amendment in subsection (2) of section 337 of the Code, but the omission of the Legislature to make this corresponding amendment would not in any manner confer jurisdiction on a Magistrate to record evidence by way of commitment proceedings in contravention of the prohibition contained in subsection (3) of section 190 of the Code. It follows, therefore, that under section 337 (2) read with section 190 (3) an approver has now to be examined as a witness only at one stage, namely, at the trial, as the inquiry stage has disappeared. As a necessary consequence, it further follows that the obligation resting on the approver, as a necessary condition of the grant of pardon, is to make a true and full disclosure of the events within his knowledge when giving evidence at the trial.

 

140. In passing it may be remarked that, while recording a statement under section 164 of the Criminal Procedure Code, there is no obligation on the Magistrate to require the presence of the accused person, as subsection (1-A) of section 164 is only an enabling provision, stating, that any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity cross-examining the witness making the statement. If the Magistrate does not choose to require the presence of the accused, he does not commit any illegality in recording the statement in question, as it is not to be used as substantive evidence against the accused who was not present.

 

141. In the two cases referred to by Mr. Yahya Bakhtiar it was laid down that an approver must be examined as a witness in the Court of the Committing Magistrate and the subsequent trial of every person tried for the same offence, but these observations had reference to the law when commitment proceedings were in force. The learned Judges were at pains, in these cases, to point out that the approver was under an obligation to give evidence at both the stages, and he was liable to forfeit the pardon if he defaulted in giving truthful evidence at either stage. There can be no cavil with these propositions, but they have to be modified in the light of the fact that commitment proceedings have since been abolished in Pakistan.

 

142. In A I R 1940 Sind 114, a Division Bench, of the Sind Chief Court took the view that although, under subsection (2) of section 337 of the Code of Criminal Procedure, it was the duty of the prosecution to examine the approver both in the commitment inquiry and at the Sessions trial, yet it was not necessary that he should forfeit his pardon if he did not give a truthful account before the Committing Magistrate on account of the threats and influences of the co-accused with whom he was placed in the same prison cell, when he gave truthful evidence in the Sessions Court in accordance with the, conditions of his pardon. In other words, the learned Judges thought that in these circumstances the approver could be held to have substantially complied with the condition of his pardon.

 

143. It follows from what has been said in the preceding paragraphs that the object of the grant of pardon is to obtain the evidence of the approver, which can only mean, in the present state of procedural law in Pakistan, evidence during the trial, commitment proceedings having been abolished. It will only be his failure to give such evidence that will render him liable to penal action under the law. Any shortcomings or distortions in a statement recorded by a Magistrate under section 164 of the Criminal Procedure Code immediately after the grant of pardon cannot render the approver liable to any penal action,’ nor in any manner deprive him of the status of an approver, as such a statement is not an essential requirement of the provisions contained in section 337 of the Code.

 

144. The Criminal Procedure Code contains a specific provision, namely, section 339, to deal with a situation where an approve fails to fulfil the essential condition of the tender of pardon by not giving truthful evidence at the inquiry or trial, as the case may be. This section lays down that;----

 

“Where a pardon has been tendered under section 337 or 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made such person maybe tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter.

 

Subsection (2) of this section contemplates: “The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial.”

 

145. It will be seen, therefore, that until such time as the procedure embodied in section 339 of the Criminal Procedure Code is adopted, it cannot be said that the person concerned has forfeited his pardon and cannot be regarded as a competent witness in the case. It is not enough that the prosecution or the defence should allege that the approver has not made a true and full disclosure of all the circumstances of the case; nor is it enough that the trial Court may hold that he has given false evidence. He forfeits his pardon only when the Public Prosecutor initiates action under section 339 of the Coda. The question of the weight to be attached to his statement is altogether a separate question, and ought not to be confused with its legal admissibility.

 

146. As to the scope and applicability of section 10 of the Evidence Act, it has already been explained in the preceding paragraphs that it is concerned with anything said, done or written by any one of the conspirators in reference to their common intention, and this position is not affected by the fact whether the co-conspirator is made an approver in the case or is tried as a co-accused. Compliance or otherwise with the provisions of section 337 of the Code of Criminal Procedure is, accordingly, irrelevant for the purposes of determining the applicability of section 10 of the Evidence Act. An approver does not cease to be a co conspirator even if he does not make a, true and full disclosure of the circumstances of the case as required by section 337 of the Code of Criminal Procedure.

 

Requirements of section 342, Cr. P. C. regarding examination of accused at close of prosecution

 

147. I now turn to the contention that several important pieces of incriminating evidence relied upon by the High Court had not been put to the appellant under section 342, Cr. P. C., with the result that they had to be excluded from consideration by this Court. The learned counsel for the appellant listed the following pieces of evidence which were not put to the appellant:

 

(i) Statement of Saeed Ahmad Khan (P. W. 3) regarding his conveying the appellant’s message to Masood Mahmood (P. W. 2) on the green telephone in P. W. 3’s own words.

 

(ii) The evidence of M. R. Welch (P. W. 4) particularly the reports sent by him to P. W. 2 Masood Mahmood.

 

(iii) Evidence of Fazal Ali (P. W. 24) particularly the evidence bearing on the substitution of empties by Mian Muhammad Abbas, which was accepted by the trial Bench out of several theories or versions about the substitution of empties, but was not put for explanation to the accused. If this theory of substitution was kept out of consideration, the whole of the prosecution story would collapse because it was otherwise an admitted position that the crime empties recovered from the scene of offence did not match with any of the weapons belonging to the Third Battalion of the F. S. F. and alleged to have been used in the commission of the crime.

 

(iv) The evidence relating to the issuance of ammunition to approver Ghulam Hussain (P. W. 31) on chits without entering them in the Register.

 

148. The submission of Mr. Ghulam Ali Memon, learned counsel for the appellant who argued this part of the case, was that those circumstances, which have been recorded by the trial Bench as incriminating against the appellant and on which his conviction has been based but were not put to him for explanation, should be excluded from consideration. According to him if that was done, the main basis of the prosecution would disappear, and the whole case would fall to the ground. In support of this submission reliance was mainly placed on the following judgments:

 

(1) S. M. K. AN v. Crown (P L D 1953 F C 189).

 

(2) Abdus Salam Molla v. Crown (P L D 1955 F C 129).

 

(3) Munawar Ahmad v. State (P L D 1956 S C (Pak.) 300).

 

(4) The State v. Tastruddin (P L D 1962 Dacca 46).

 

(5) Addl. Advocate-General, W. Pak. v. Abdul Majid (P L D 1965 Quetta 20).

 

(6) M. Akbar Khan Bugti v. State (P L D 1967 Kar. 186).

 

(7) Imam Ali v. State (1975 P Cr. L J 489).

 

(8) Gulzar Ahmad v. State (1975 P Cr. L J 1207).

 

149. In all these cases the view has been expressed that section 342 deals with the examination of the accused with particular reference to the circumstances appearing in evidence against him, and that compliance with its provisions is absolutely essential in accordance with its terms; and where this is not done, the piece of incriminating evidence not put to the accused should be excluded from consideration, and as a result the conviction might be quashed, or the trial might be set aside, if the remaining evidence was not sufficient to sustain the conviction, or if some prejudice appears to have been caused to the accused.

 

150. Mr. Batalvi, the learned Special Public Prosecutor, submitted that the objection raised on behalf of the appellant that certain parts of the evidence were not put to him in his examination under section 342, Cr. P. C. was of no avail in the special circumstances of this case. He pointed out that the examination of this appellant, after the conclusion of the prosecution evidence, started on January 24, 1978. In answer to the very first question. he said: “I am boycotting the proceedings of the trial and would not be offering any defence. I will confine my statement to two issues: (1) Why this case has been fabricated against me, and (2) my lack of faith in getting a fair trial and justice. As for the other questions, if they do not directly pertain to my defence, I will be willing to give an answer”. This was followed by his examination under section 342, Cr. P. C., but no answer was given by him to 53 questions put to him that day except in terms of the above propositions formulated by him in his first answer. The remaining 14 question were asked from Mr. Bhutto on January 25 and 28, 1978. Camera proceedings had been ordered on January 25, 1978. The accused did not answer any question relating to the evidence appearing on the record against him, although he made a long statement complaining against the holding of the trial in camera. In reply to certain questions he did not even speak; he either shook his hand or his head.

 

151. The learned counsel submitted that it was apparent from the above that the accused had deliberately refused to answer any question, and did not endeavour to explain the evidence appearing against him or relating to his defence; and it was in this context and in this background that the question of the alleged failure of the Court to comply with the provisions of section 342 of the Code had to be considered. Mr. Batalvi contended that the examination of the accused was not a game of technicalities. If the accused wished to frustrate the process of law, he could not be heard to say in appeal that a particular question had not been asked from him, and the failure to do so had caused prejudice to his case. Prejudice, he submitted, had to be proved as a matter of fact. It could arise only when the accused had taken part in the proceedings of the Court.

 

152. As a matter of fact, according to Mr. Batalvi, once Mr. Bhutto had declared that he would not answer any question at all, the Court was not bound to ask him any further questions, but in this particular case, however, there had been full compliance with the provisions of this section. In support of these submissions, he placed reliance on:

 

(1) Rameshan v. Emperor (A I R 1936 Nag. 147).

 

(2) Dawarka Singh v. Emperor (A I R 1947 Pat. 107).

 

(3) Mohyuddin v. Emperor (A I R 1925 Pat. 414).

 

153. A perusal of these cases shows that they do indeed support Mr. Batalvj. In Rameshan’s case, the accused had put in a written statement and said nothing more. It was observed that it was, undoubtedly, the duty of the Court to put to the accused the various points against him, and the filing of the written statement did not abrogate that duty. If, however, when the Court wanted to put the question and the accused practically refused to answer, saying that he had nothing to say beyond what is stated in the written statement filed by him, it will be useless for the Court to persist with the detailed questioning, and there was no prejudice to the accused.

 

154. In the case of Dawarka Singh it was observed that the primary matter to be ensured under section 342, Cr. P. C. is that the accused has been given an opportunity to explain vital matters in evidence against him, but if he fails or refuses to give an explanation, his failure or refusal should be made abundantly apparent on the face of the record so that the inference against him, authorised by section 342, may be drawn.

 

155. In the case of Mohyuddin, it was observed that it was not necessary that every part of the evidence of each prosecution witness should be put to the prisoner. He was at the trial and had heard what the witness had said. All that was required was that he should be given an opportunity to generally state his position. Principle required that the accused should not be convicted without being given an opportunity to explain the allegations against him. The judicial questioning, however, should not become inquisitorial. If these essentials are secured, the trial cannot be impeached. The trial is not vitiated for any deviation from the section unless the accused is prejudiced in his defence.

 

156. In Sate v. Zia-ur-Rehman (PLD 1973 SC49) certain observations appearing at page 93 of the report though made in a somewhat different situation nevertheless have some relevancy in the present context and may, therefore, be reproduced here with advantage:

 

“The procedure adopted by the Court was also the summary procedure which was made still more summary by the non-participation of the detenus themselves who refused to participate. Actually, there was no acceleration of any date of hearing in the cases of the Printers and Publishers of the ‘Urdu Digest’ and the `Punjab Punch’. The only acceleration of the date of hearing, which can be complained of, was in the case of the Publisher and Editor of the weekly “Zindagi”. But in this case, too, I find myself unable to say that the acceleration of the date of hearing rendered the proceeding coram non judice or mala fide.

 

As already pointed out, each of the detenus had filed long statements challenging not only the authority of the Military Court but even the validity of the Martial Law Regulations and refused to participate in such proceedings. They had been given the liberty to appoint a friend to defend them, to cross-examine the witnesses produced on behalf of the prosecution and to adduce defence witnesses if they so desired; but they had all declined to do so on the ground that they did not recognise the Court or its proceedings. It does not, in the circumstances, lie in their mouths now to complain that they had been deprived of any valuable right or that the Military Court had in the circumstances acted in such a manner as to render its proceedings a farce.”

 

157. In the alternative, Mr. Batalvi submitted that even if it was supposed that the appellant had answered the questions put to him, and the Court had failed to ask certain other questions, in such circumstances the inadequacy of the examination was not sufficient to vitiate the judgment, unless clear prejudice was shown. The mere possibility that prejudice was caused, was not enough. It was for the accused to satisfy the Court that, in fact, prejudice had been caused to the defence. The question of prejudice was definitely one of inference from all the facts and circumstances of each case.

 

158. In support of these submissions Mr. Batalvi relied on a large number of cases, wherein the same view had been taken. Some of the leading judgments taking this view are the following :-

 

(1) Sher Jang v. Emperor (-A I R 1931 Lah. 178).

 

(2) Ali Shan v. Crown (P L D 1953 Lah. 14).

 

(3) Abdul Wahab v. Crown (P L D 1955 F C 88).

 

(4) Ibrahim Bhak v. Crown (P L D 1955 F C 113).

 

(5) Lalan v. Crown (P L D 1955 F C 132).

 

(6) M. Yaqub v. Crown (P L D 1956 F C 143).

 

(7) Bashir Ahmad v. State (P L D 1960 Lah. 687).

 

 (8).Rama Shankar v. State of Bengal (A I R 1962 S C 1239).

 

(9) Aisna Khatun v. State (1968 P Cr. L J 53).

 

(10) M. Snnafar all v. State (1969 S C M R 461.

 

(11) Saleh Aduhainmurl v. State (1971 3 C M R 260).

 

(12) Ajit Kumar v. State of Bihar (A I R 1972 S C 2058).

 

(13) Allah Dad v. State (P L D 1978 S C 1.).

 

(14) Moseh Chauhdry v. West Bengal State (A I R 1956 S C 536).

 

(15) Bimbhadur Pradhan v. State of Orissa (P L D 1957 S C (Ind.) 68).

 

159. From a consideration of the above judgments it is clear that the failure to question the accused with respect to every piece of evidence will not result in vitiating the trial, or in the exclusion of that piece of evidence, unless the omission has caused prejudice to the case of the accused. In fact, this principle is decipherable even from the judgments cited by Mr. Memon, on behalf of the appellant to which a reference has already been made.

 

160. 1n the light of the above principles, we may proceed to consider whether the contention that the four incriminating pieces of evidence listed at the outset of this discussion should be excluded from consideration, can be given effect to.

 

161. So far as the failure to call the attention of the appellant to the first two pieces of evidence, namely ----

 

(i) the statement of Saeed Ahmad. Khan regarding his conveying the message of the appellant to Masood Mahmood on the green telephone in his own words, and

 

(ii) the evidence of M. R. Welch (P. W. 4), particularly the reports sent by him to Masood Mahmood (P. W. 2) is concerned, I find that the gist of these allegations was put to the appellant in questions Nos. 26 and 27 respectively. Question No. 26 was to the effect whether it was a tact that he had been reminding and goading Masood Mabmood with regard to getting rid of Kasuri, which he had done personally on the green line, and through Saeed Ahmad Khan and Bajwa. It was not necessary to mention the details of the evidence of Saeed Ahmad Khan. Similarly Question No. 27 drew the appellant’s attention to Masood Mahmood’s evidence that during the appellant’s visit to Quetta on the 29th July, 1974, he had asked Masood Mahmood to get rid of Ahmad Raza Kasuri during the latter’s visit to Quetta, and that in pursuance thereof Masood Mahmood had given directions to his local Director M. R. Welch to take care- of Kasuri as he was one of the anti-State element. It is true that the reports subsequently sent by -Welch to Masood Mahmood on Kasuri’s visit to Quetta were not put to the appellant, but Question No. 27 does, indeed, contain a pointed reference to the action taken by the appellant and Masood Mahmood at Quetta in furtherance of the alleged conspiracy. It seems, therefore, that the omission to refer specifically to the evidence of Welch, which was only in corroboration of Masood Mahmood, was immaterial inasmuch as the appellant had been given notice of this part of the prosecution case in no uncertain terms.

 

162. 1t is no doubt true that the remaining two incriminating pieces of evidence, namely, the evidence of Fazal Ali (P. W. 24) relating to the substitution of empties by Mian Muhammad Abbas, which was accepted by the trial Bench, and the evidence relating to the issuance of ammunition to the approval Ghulam Hussain (P. W. 31) on chits without entering them into the register, were not put ire these terms to the appellant, although in question No. 39 the prosecution allegation regarding substitution of empties by the Police Officers at Lahore was mentioned. However, in our opinion, the above omission will neither vitiate the trial nor entail the exclusion of these pieces of evidence from consideration, by reason of the peculiar conduct of the appellant himself at the time of his examination under section 342, Cr. P. C.

 

163. Although this section is a mandatory provision, yet its compliance is dependent upon the conduct of the accused himself. In the present case, the accused frustrated these provisions by boycotting the proceedings and refusing to answer any questions put to him relating to his defence. Several judgments have been cited (A I R 1931 Lah. 178, A I R 1936 Nag. 147, A I R 1925 Pat. 414 and A I R 1947 Pat. 106) to show that it may be useless for the Court to persist with the detailed questioning if the accused preferred to be reticent. In fact, in view of the conduct displayed by hire, the Court would have been justified not to ask any further questions. I point of fact, 67 questions were put to him whereby practically all the incriminating pieces of evidence except the two listed above, were mentioned. The answers furnished by him to these 67 questions establish beyond doubt that even if the trial Court had put the said two pieces of evidence to him for explanation, they would not have elicited any replies different from those given by him to the other questions put to him. In these circumstances, this omission has not caused any prejudice to the appellant in his defence.

 

164. It is now well-established that unless it is proved as a matter of fact that prejudice was caused to the accused with regard to his defence, the validity of the trial is not affected, as section 537, Cr. P. C. cures any such irregularity that might be found.

 

SCOPE AND APPLICATION OF SECTION 537, CR. P. C. TO CURE IRREGULARITIES IN TRIAL

 

165. Since the intendment and scope of section 537, Cr. P. C. has been argued at considerable length before us, we may appropriately discuss this question at this stage.

 

166. Section 537, Cr. P. C. as it stands at present runs as follows :----

 

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-----

 

(a) of any error, omission or irregularity in the complaint, report by a police officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or

 

(b) of any error, omission or irregularity in the mode of trial including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice.

 

Explanation.---In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”

 

167. The shape in which this section stands at present is the result of a number of amendments made therein since it was enacted in 1898, inter alia, the amendments carried out by the Criminal Procedure Amendment Act (Act XVIII of 1923) and the recent amendments made by the Code of Criminal Procedure (West Pakistan Amendment) Act 1964 (Act XVII of 1964) and the Law Reforms Ordinance of 1972.

 

168. As originally enacted in 1898, this section was in the following terms “Subject to the provisions hereinbefore contained no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account -----

 

(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or

 

(b) of the want of or any irregularity in any sanction required by section 195, or any irregularity in proceedings taken under section 476, or

 

(c) of the omission to revise any list of jurors or assbssors in accordance with section 324, or ‘

 

(d) of any misdirection in any charge to a jury unless such error, omission irregularity, want or misdirection bas in fact occasioned a failure of justice.

 

Explanation.-in determining whether any error or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage. in the proceedings.

 

Illustration

 

A Magistrate being required by law to sign a document signs it by initials only. This is purely an irregularity and does not affect the validity of the proceedings.”

 

169. The provisions of this section came up for consideration in the case of Subramania lyer (28 I A 257). In this case the Privy Council while dealing with the contravention of section 234 resulting in misjoinder of charges, described it as an illegality and not a mere irregularity that could be removed by section 537, Cr. P. C. and observed;

 

“Their Lordships are unable to regard the disobedience to express provisions as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment . . . .

 

It was further observed that it would be an extraordinary extension of such a branch of administration of criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity.

 

170. This decision subsequently was, however, explained in a number of cases, because the Judicial Committee appears itself to have realized that the view taken by it to the effect that a violation of the mandatory provisions of the Code would be an incurable illegality was rather an extreme one. Consequently, in the later decisions of the Privy Council the pendulum began to swing towards the other side. In Abdul Rehman v. Emperor (54 I A 96) there was a violation of section 360 of the Code of Criminal Procedure, which provides that deposition of each witness shall be read over to him in the presence of the accused or his counsel. The High Court held that the omission to do so was a mere irregularity and confirmed the conviction as no failure of justice had resulted. It was pointed our on appeal before the Privy Council that the section was applicable and that non-compliance of such a mandatory provision was illegal on the, principle laid down in Subramania lyer’s case. Their Lordships, however, held that as there had been no actual or possible failure of justice, the appeal could not succeed whether the section of the Code had or had not been properly applied. As for Subramania’s case, it was observed that the procedure adopted in that trial was one which the Code positively prohibited and it was possible that it might have worked actual injustice to the accused.

 

171. The matter came up again in Pulukuri Kotayya v. Emperor (A I R 1947 P C V) where there was a breach of statutory requirements found in section 162 of the Code inasmuch as the accused were not supplied with copies of the statements first recorded by the police officer for cross-examining the prosecution witnesses. The defect was recognized to be a matter of gravity and it was observed that if there had been a total refusal to supply copies to the accused the convictions were liable to .be quashed. But in the case before them as the statements were made available though too late to be effective, and the Circle Inspector’s notes and the examination of the witnesses were put in the hand of the accused, the defect was taken to be merely an irregularity, which in the peculiar circumstances of the case had not occasioned prejudice to the accused. Referring to the contention that the breach of a direct and important provision of the Code cannot be cured but must lead ` to the quashing of the conviction, Sir John Beaumont observed;

 

“In their Lordships’ opinion this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a manner different from that prescribed by the Code (as in 28 I A 257), the trial is bad and no question of curing an irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct the irregularity can be cured under section 537 and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.”

 

172. His Lordship went on to add;

 

“The distinction drawn in many of the cases in India between an illegality and an irregularity is one of `degree’ rather than of `kind’. This view finds support from the decision of their Lordships in Abdul Rehman v. King-Emperor (54 I-A 96) where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537.

 

The present case falls under section 537, Cr. P. C. Their Lordships hold the trial valid notwithstanding the breach of section 162.”

 

173. The above principle has been upheld by our Federal Court and Supreme Court in a number of decisions. In Abdul Wahab v. Crown (P L D 1955 F C 88), which has already been mentioned, non-compliance with the provisions of section 342, Cr. P. C., in that the attention of the accused was not drawn to the point or points in evidence which could influence tire mind of the Judge in arriving at conclusions adverse to the accused, and no opportunity afforded to him to give any explanation thereto if he had any, was held to be merely an irregularity curable under section 537, Cr. P. C. on the footing that the accused was literate and could very well follow the nature of the proceedings against him and was also aware of the prosecution case, and no miscarriage or failure of justice was proved. The same principle was adopted in Ibrahim Bhak v. Crown (P L D 1955 F C 113), and later in Faiz Ahmad v. State (P L D 1960 S C 8).

 

174. A detailed discussion of the scope and purpose of the provisions of section 537, Cr. P. C. was made by the Supreme Court of India in W. Slaney v. State of Madhya Pradesh (A I R 1956 S C 116) and it was observed that “the object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not ,vitiated unless the accused can show substantial prejudice”.

 

175. After discussing Subramania’s and Puhkuri Kotayya’s cases, their Lordships went on to state : “Now it is obvious that the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question in such cases is whether the departure is so violent as to strike at the root of the trial, and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule, but taken by and large tire question usually narrows down to one of prejudice. In any case, the Courts must be guided by the plain provisions of the Code without straining at its language wherever there is an express provision:

 

“For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. That was due to the language of the Judicial Committee in 28 I .I3, 257 P C (D). Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice.”

 

This, in our opinion, has been the trend of the more recent decision as of the Privy Council and indeed of later-day criminal jurisprudence in England as well as in India. The swing of the pondulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer. justice fairly and impartially as it should be administered ; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered.

 

176. I may mention here that the recent amendments to section 537 (made in 1964 and 1972 as mentioned at the outset), whereby an irregularity in the mode of trial, including any misjoinder of charges, has been placed in the curable category, ought to set at rest the controversy that has raged around the true meaning of Subramania’s case.

 

177. The judgment of the Supreme Court of India in W. Slaney’s case was further explained by the same Court in Gurbachan Singh v. State of Punjab (A I R 1957 S C 623) and it was added :-

 

“In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether she main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.”

 

178. Before us a large number of judgments delivered by Courts in Pakistan were cited, but they do not lay down a different principle. In Rahmat v. State (1968 Cr. L J 35 .) it was observed, “referring to the amendment made in section 537 whereby an irregularity in the mode of trial has been made curable, that although an error or omission in the conduct of the trial will be curable under section 537, Cr. P. C. where no failure of justice has occasioned, but this amendment does not mean that the trial could be conducted in “utter disregard of the provisions of the Code”.

 

179. In that case the trial of two sots of accused, who, were charged with- the commission of some offence was held together and it was observed that the procedure adopted by the Magistrate was not only against the imperative provisions of the Code, but had actually resulted in causing prejudice to the accused.

 

180. In two recent decisions of this Court namely, Wahid Bakhsh v. State (1974SCMR219) and Allah Dad v. State (PLD1978SC1), the principle that unless the irregularity in the conduct of the trial has resulted in prejudice to the accused the trial is not vitiated, has again been reiterated. The observations made in the case of Wahid Bakhsh, where no specific question was put to the accused with regard to the dying declaration which was also the F. I. R. in the case, make instructive reading. It was observed that both before the Committing Court as well as the Court of Session the accused was represented by counsel, who had the fullest opportunity to cross-examine the witnesses. The F. I: R. was exhibited on the record in his presence, and was read over in open Court. The accused, in the circumstances, was not taken by surprise because of the reliance by the Court upon this evidence. The omission, therefore, was a mere irregularity which was curable under section 537, Cr. P. C. More or less similar remarks were made in the case of Allah Dad.

 

181. It will thus be seen that in determining whether an omission, error or irregularity in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, the Court must look to the substance and not to technicalities ; and if the accused has had a fair trial, and has not been prejudiced in his defence, then the error, omission or irregularity would stand cured under the provisions of section 537 of the Code. And as the distinction between an illegality and an irregularity is, to borrow the words of Sir John Beaumont of the Privy Council (in A I R 1947 P C 67), only one of degree rather than of kind, nothing turns on this distinction for the purposes of the application of this curative section.

 

132. Now, in the particular matter at present under discussion,, viz. the failure of the trial Court to put some pieces of evidence to the appellant under section 342, Cr. P. C. we have se-.n that no prejudice has been caused to him, not, only for the reason that he or his counsel were fully aware of the entire evidence led by the prosecution ; but also b; cause he had, in any case refused to answer most of the questions put to him under a declared stance deliberately adopted by him. In these circumstances the omission, if any, would stand fully cured under section 537 of the Code.

 

Application arid scope of section 540-A of the Cr. P. C. In the matter of trial proceedings conducted on certain dates in absence of appellant Zulfiqar Ali Bhutto

 

183. I will next deal with the objection raised by the learned counsel for Zulfiqar Ali Bhutto appellant that the trial of the accused held in his absence from the 16th of November, 1977 to the 30th of November, 1977 and on the 14th of December 1977, as well as on the 17th of December 1977 was not warranted under section 540-A of the Criminal Procedure Code and was vitiated. He further submitted that at any rate the requirements of these provisions were not properly complied with by the trial Bench, with the necessary consequence that the evidence of the witnesses examined on these dates of hearing could not be legally read against the accused-appellant, and the remaining evidence on the record was not at all sufficient to incriminate him. According to him, in proceeding against the accused in his absence the trial Court acted against the cardinal principle of criminal law embodied in section 353, Cr. P. C. that evidence of the prosecution witnesses must be recorded in the presence of the accused. He contended that the Court acted illegally in holding the trial in the absence of the appellant, resulting in grave miscarriage of justice and prejudice to him.

 

184. The learned Special Public Prosecutor submitted that during the trial Zulfiqar Ali Bhutto had unfortunately fell ill twice and was incapable of personally appearing in and remaining before the Court. Consequently, his personal attendance in Court was dispensed with and the proceedings were taken in his absence, although the presence of his counsel who were all along afforded full opportunity to see their client, seek day to day instructions from him, and cross-examine the prosecution witnesses at length, so that no prejudice was, in fact, caused to the accused in the trial, thus held in his absence on those days. He added that no complaint on this account was subsequently made at any time before the trial Bench during the course of the trial.

 

185. The general principle of criminal law that the trial of an indictable offence has to be conducted in the presence of the accused, and that for this purpose trial means the whole of the proceedings including sentence, is stated in Corpus Juris Secundum, Volume 23, Sections 973 and 975 ; and has been reiterated in a number of decided cases. (See Basil Ranger Lawranre v. Emperor (AIR 1933 P C 218) and Sultan Singh Jain v. The State (2186. There cannot be any quarrel with this well recognised general principle which is essential for the safe administration of justice in criminal cases. Indeed in this country the general rule is embodied in section 353, Cr. P. C. which expressly lays down that;---

 

“Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of the pleader.”

 

187. Under this section it is imperative that all evidence in the trial of cases by Magistrates, summary trials, and trials before High Courts and Courts of Session shall be taken in the presence of the accused, or in certain Circumstances, in the presence of his pleader.

 

188. But this general rule stated in section 353 of the Code is subject to the opening clause-”Except as otherwise expressly provided”, and it ceases to be applicable in the presence of an express provision to the contrary in the Code. Two of these express provisions to the contrary can be found in section 205 and section 540-A of the Code. Under section 205(1) whenever a Magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. Similarly under section 540-A of the Code, under given circumstances, a Judge or Magistrate may dispense with the presence of the accused, if he is represented by a pleader. Also in section 512 of the Code we have another special rule of evidence by way of exception to the general rule. It provides that where the accused is absconding, or is unknown, witnesses may be examined and their deposition recorded on behalf of the prosecution, even in the absence of the accused and that such deposition may be put in evidence against him subsequently after his arrest. The object of this provision is to see that important evidence is not lost by the time the accused is arrested and brought in Court.

 

189. In addition to the above some of the superior Courts in the Indo--Pakistan Sub-Continent have held that the power to dispense with the personal attendance of the accused is also implicit in and can be spelt out of the closing line of section 353, Cr. P. C. itself. The observations in State v. Victor Henry and 2 others (P L D 1973 Kar. 273). Sultan Singh Jain v. The State, Dewal Krishan v. The State (A I R 1954 Pepsu 36), Anand Martand and another v. Anant Pandurang (A I R 1956 Madh. Bha. 13), Emperor v. C. W. King (14 Bom. L R 236) and In re : Ummat Hassanath (A I R 1947 Mad. 433). lend support to this view.

 

190. In Chamanlal and another v. Parashar Singh and others (A I R 1957 Nag. 101) the High Court observed that it bad inherent power under section 561-A of the Code to exempt an accused from appearance in Court beyond those contained in sections 205 and 540-A.

 

191. But, as already mentioned, the High Courts in India are not unanimous on this interpretation of section 353 of the Code. While some of the Indian High Courts have adhered to the view that the power to dispense with the attendance of an accused at the hearing in Court is implicit in section 353 of the Code, the others are of the opinion that this section by itself does not confer any independent power upon the Presiding Officer trying a case to dispense with tine personal attendance of the accused.

 

192. In order to fully appreciate the respective contentions of the learned counsel it is necessary here to narrate the relevant facts in some detail.

 

BHUTTO’S ABSBNCB DUB TO ILLNESS BUT HIS COUNSEL WERE PRESENT

 

193. In the trial Court the prosecution commenced its evidence on 11-10-1977. In the course of the evidence the statement of P. W. 3 Mr. Sated Ahmad Khan was recorded on 31-10-1977 and he was cross-examined by the learned counsel for Zulfiqar Ali Bhutto appellant for four days when on 8-11-1977 the case was adjourned to 12-11-1977 for his remaining crossexamination. But the case could not be taken up on 12-11-1977 and was adjourned to 13-11-1977 for evidence. At the hearing, on 13-11-1977, Zulfiqar Ali Bhutto accused was not brought to Court from jail and it was reported that he would not be able to appear in Court for two days due to sickness. In the circumstances the Court while adjourning the hearing for two days to 15-11-1977 for further evidence, pointedly drew the attention of his learned counsel to the provisions contained in section 540-A of the Code.

 

194. On 14th November 1977, the Superintendent, Jail, Lahore, wrote to the Registrar (Judicial), Lahore High Court, Lahore, enclosing therewith a medical certificate to the effect that Zulfiqar Ali Bhutto accused was suffering from respiratory infection and had also some gastric trouble. He was also running temperature and was advised rest for the 15th and 16th November 1977. On the 15th he was again examined by Professor Iftikhar Ahmad, Secretary Health, Government of Punjab and according to his report the accused was suffering from acute influenza with debility. He had temperature also with severe nasal congestion and conjunctive congestion and was advised rest for three days.

 

195. In Court, on the next date of hearing on 15-I1-1977, Mr. D. M. Awan, learned counsel for the appellant, filed an application (Criminal Miscellaneous No. 1106-M of 1977) under section 561-A, Cr. P. C. to the effect that Zulfiqar Ali Bhutto accused was not in a position to attend the Court and prayed that the cross-examination of the prosecution witnesses be deferred until the recovery of the accused.

 

196. This application was placed on the record. At the hearing in Curt, on 15-11-1977; Mr. D. M. Awan learned counsel for the appellant submitted that his client might recover from his ailment in two days. But at the same time he too requested that the case may be adjourned “till such time his client recovers”. The Court however, told him to cross-examine the witness on 16-11-1917 and to seek instructions from his client meanwhile.

 

197. In these circumstances the proceedings in Court were continued in the absence of Zulfiqar Ali Bhutto accused due to his illness on ten dates of hearing between 16-11-1977 to 30-11-1977 (both dates inclusive). But in Court he was all along represented by a team of lawyers who crossexamined the witnesses produced by the prosecution.

 

198. On 25-11-1977 Zulfikar Ali Bhutto appellant wrote to the Superintendent of Jail, Lahore that he had a server attack of influenza combined with malaria, and was slightly better but was not well enough to attend the Court for over five hours at a stretch. He added that the Court had already observed that the case could proceed in his absence in spite of his illness. He therefore, expressed the opinion that: “Until I feel fully recovered it would not be in the interest of my health to attend the Court for the time being.” This letter was forwarded in original by the Superintendent Jail to the Court.

 

199. In the course of the hearing on 26-11-1977 the prosecution produced Mr. Ahmad Raza Kasuri P. W. 1 in Court for his further crossexamination. But Mr. D. M. Awan, learned counsel for Zulfiqar Ali Bhutto accused expressed his difficulty in cross-examining him and submitted that as the Court had earlier agreed, he may be allowed to complete the cross-examination of the said witness in the presence of his client. On this the Court enquired from the learned counsel about his client’s health. In reply he stated that he had met him a day before in jail and that he had no temperature but was only feeling weakness. On this the Court directed that the appellant may be medically examined by a Medical Board constituted by it.

 

200. But on 27-11-1977 the learned Special Public Prosecutor produced a report of the Medical Board which was to the effect that the accused did not submit himself to the medical examination for, according to him he had only a subjective feeling of weakness, and was of the view that nothing would be found on medical examination as he was not suffering from any organic disease. 1n these circumstances, in the absence of the medical report, the Court told his counsel to enquire from him as to when he would be able to attend the Court proceedings as Mr. Ahmad Raza Kasuri P. W.1 had to be cross-examined in his presence. On the next date of hearing on 28-11-1977 Mr. D. M. Awan informed the Court that the appellant would be able to attend the Court on 3-12-1977.

 

201. After 30-11-1977, the next date of hearing in the case was fixed for 6-12-1977, when Zulfiqar Ali Bhutto again appeared in Court along with his counsel. In his presence, his learned counsel conducted the cross-examination of Muhammad Sarwar P. W. 17. The prosecution produced Mr. Ahmad Raza Kasuri P. W. I for his further cross-examination by the accused. But at the request of Mr. D. M. Awan the Court adjourned the case to 7-12-1977 when the further cross-examination of the witness was concluded by the learned counsel in the presence of his client.           

 

202. In the circumstances narrated above a part of the cross-examination of P. W. 3 was conducted on 16-11-1977, the evidence of P. W. 4 to P. W. 16 and part of the evidence of P. W. 17 was recorded in the absence of Zulfiqar Ali Bhutto accused, but in the presence of his learned counsel and all the remaining accused and their learned counsel, who were allowed full opportunity to cross-examine these witnesses.

 

203. On another occasion also; on the 14th December 1977, Zulfiqar Ali Bhutto accused was not brought to Court from jail on account of his illness. His learned counsel, Mr. D. M. Awan, who appeared in Court for him at the hearing was asked to enquire from him if he wanted a team of doctors to examine him for his treatment. On this Mr. D. M. Awan a after having contacted him on telephone, informed the Court that he would like his private physician Dr. Muhammad Iqbal of Lahore to examine him. The Court, thereupon passed an order that ht should be examined by a team of leading Doctors nominated by it, including Dr. Muhammad Iqbal. The Court however, decided to continue with the proceedings for the day and dispensed with the attendance of the ac: used under section 540-A, Cr. P. C. Accordingly on 14-12-1977 the Court recorded a part of the statement of P. W. 28 Ashiq Muhammad Lodhi, and the statement of P. W. 30 Haroon Ahmad, Section Officer, Establishment Division, Rawalpindi, wt o simply produced the T. A. Bills of Abdul Ahmid Bajwa and was not cross-examined by any of the Defence counsel including the learned counsel for Zulfiqar Ali Bhutto accused, in spite of the opportunity allowed to them. In addition to them the statement of P. .W. 31 Ghulam Hussain approver in examination-in-chief was also partly recorded on that day in the absence of Zulfiqar Ali Bhutto accused. All this was however, done in the presence of his learned counsel and the remaining parties and their learned counsel.

 

204. On the next date of hearing on 15-12-1977, it was brought to the notice of the trial Bench that Zulfiqar Ali Bhutto did not submit to examination by the Medical Board appointed by the Court. He was however, examined by his own doctor, namely Dr. M. Iqbal alone, who reported that the accused had a severe relapse of colitis and was again developing a sore throat. However, on 15-12-1977 Zutfikar Ali Bhutto appeared with his counsel in Court at the hearing and participated in the proceedings.

 

205. In this connection mention may also be made about another incident which happened in -Court on the 17th of December 1977. According to the order dated 17-12-1977 passed by the learned trial Bench after the examination-in-chief of P. W. 31 Ghulam Hussain approver was concluded, Mr. Irshad Ahmad Qureshi, Advocate, who was to cross-examine the witness firs, asked for time to consult his clients. The Court therefore, directed that his cross-examination would begin at 10-30 a.m. after the recess. Before rising for the recess the Court enquired from the counsel about their reaction to continue the hearing of the case during the coming winter vacations about which the Court had already sounded them on a previous date of hearing. The Court desired that the counsel should give their reaction after conferring with each other. Mr. D. M. Awan, learned counsel for the appellant, then requested that the Court might meet at 10-45 a.m. instead of 10-30 a.m. because he had yet to get copies of a statement. As Mr. D. M. Awan was addressing the Court, Zulfiqar Ali Bhutto appellant while trying to draw the attention of Mr. D. M. Awan, uttered the words “damn it”. The Court told the appellant not to call his counsel “damn it” inside the Court, at which he stated that he was in a “very disturbed condition”. The Court observed that it felt sorry that he was in a disturbed condition of mind but imp upon him that it would, nevertheless, not entitle him to abuse his counsel in Court. The Court further observed that “damn it” was a bad word, but the appellant insisted twice that it was not; and when the Court wanted Mr. Awan to resume his submissions, he (Bhutto) uttered the words: “I have had enough!”. When asked as to enough of what, he replied: “of humiliation and insult”: According to the Court, in view of this persistent unruly behaviour, the appellant was asked to be taken out of the Court. After he was taken out, Mr. D. M. Awan was asked to meet his client during the recess and to request him to help keep the dignity and decorum of the Court and not to adopt an unruly attitude, for otherwise he would be liable under the law and the Jail Manual. The Court then rose for the recess. During the recess, Mr. D. M. Awan was called in the Chamber to know the reaction of his client whereupon Mr. D. M. Awan informed the Court that he had talked to the appellant but be says that he knew the provision of law and the Jail Manual. The Court then passed the following order :--

 

“From Mr. Bhutto’s attitude in the Court before the recess and his persistence in that attitude as conveyed to us by Mr. D. M. Awan during the recess, as well as by the fact that Mr. Bhutto was by his own admission, in a perturbed state of mind, the Court was satisfied that he was incapable of remaining in Court for the day. His presence was therefore, dispensed with for the rest of the day under section 540-A, Cr. P. C.”

 

206. It may be added here that this narration of the occurrence in Court substantially agrees with the account given by Zulfiqar Ali Bhutto appellant in para. 23 of his miscellaneous application dated 18-12-1977 (Cr. Misc. 7-M of 1978, Volume of Applications, pages 163-164). The appellant explained that at the time he wag in a very disturbed condition because he had just then learnt that his wife, Begum Nusrat Bhutto had received a head injury  during a commotion that ensued when she had gone to see the Cricket match at Gaddafi Stadium in Lahore on 16-12-1977.

 

207. In these circumstances after the recess on 17-12-197.7 when the Court reassembled, Mr. Irshad Ahmad Qureshi cross-examined P. W. 31 Ghulam Hussain approver. Mr. D. M. Awan had next to cross-examine him. But the Court observed that his client was, according to his own admission, mentally disturbed at the time and hence his presence in Court for the day had already been excused. In the opinion of the Court Ghulam Hussain was an important witness and it was proper that, if possible, he should be cross-examined by Mr. Awan when the appellant was present. The Court accordingly adjourned the hearing of the case to the 18th of December 1977 when the cross-examination of P. W. 31 Mr. Ghulam Hussain was resumed by the learned counsel of the appellant in his presence.

 

208. In the background of these facts let us now turn to the provisions contained in section 540-A, Cr. P. C. For the sake of convenience this section is reproduced below in extenso :-

 

“(1) at any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that anyone or more of such accused iii or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

 

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.”

 

209. V. V. Chitlay in his commentary on the Code of Criminal Procedure under section 540-A has observed that;

 

“It is a general provision designed to meet a practical difficulty which is occasionally experienced in trials involving a large number of accused persons, when during the trial, one or more of them are incapable of remaining before the Court, and for inquiries and trial being held in the absence of such persons . . . . . , .”

 

210. By necessary implication it follows from these observations that section 540-A cannot be allowed to be used as a handle in the hands of the accused who is incapable of remaining before the Court so as to prolong the proceeding. Any other interpretation is likely to lead to mischievous results and defeat the very purpose for which this provision was designed.

 

211. It seems to me that section 540-A of the Code as is in force in Pakistan was enacted not merely for the benefit of the accused who is incapable of remaining before the Court, but also for the benefit of the other accused whose trial is likely to be delayed unnecessarily for no fault on their part. Subsection (1) of this section is attracted only where there are two or more accused before the Court and any one or more of such accused is or are incapable of remaining before the Court, the Judge or Magistrate may, under certain circumstances, dispense with his or their attendance and proceed with the inquiry or trial in his or their absence. In trials involving a large number of accused, it often happens that “one or more of them, either by chance or design, keep on absenting, themselves in turn from the hearing on ground of ill-health, etc. and the Court finds it difficult to secure the presence of all of them together at the hearing thus resulting in inordinate delay in their joint trial. It was to meet w this practical difficulty that this section was enacted, in the interest of the; expeditious disposal of such cases, for the benefit of the State and’ with a view to avoiding unnecessary harassment to the other accused in attendance at the hearing and for their benefit also.

 

212. The elements necessary for attracting the jurisdiction of the Judge or Magistrate under the section are:

 

(a) that there are two or more accused before the Court facing an inquiry or trial under the Code;

 

(b) that one or more such accused is or are incapable of remaining, before the Court; and

 

(c) that such accused is represented by a pleader.

 

It is only on the fulfilment of these conditions precedent that the jurisdiction of the Judge or Magistrate is attracted, and he may after having so satisfied himself in his discretion dispense with the personal attendance of such accused and proceed in his absence. (See P L D 1973 Kar. 273, 1968 P Cr. L J 791, A I R 1924 Lah. 705 and A I R 1940 All. 178).

 

213. The learned counsel for the appellant contended that under section 540-A of the Code the Judge or Magistrate seized of a case is empowered to dispense with the personal attendance of the accused, only on his application or request, and that be cannot by order impose any forced exemption on him against his wishes. In other words, according to the learned counsel, under section 540-A of the Code, in case one of the accused is incapable of remaining before the Court, then the Judge or Magistrate has no option but to simply act at his behest, either to dispense with the attendance of such accused at his will or else to adjourn the case before him until he is able to re-join the proceedings.

 

214. I find that there is nothing in subsection (1) of section 540-A ok the Code to put this unwarranted curb on the discretion vested in the Judge or the Magistrate and to lend support to this restricted interpretation sought; to be placed on its plain meanings. Subsection (1) lays down that the Judge or Magistrate may dispense with the personal attendance of I the accused who is incapable of remaining before the Court, and proceed; with the inquiry or trial in his absence provided he is represented by pleader. But under subsection (1) if he considers that the personal attendance of such accused is necessary, he may for reasons to be recorded either adjourn the inquiry or trial or order his case to be taken up or tried separately. In the scheme of this section, reading the two subsections) together, it is clear that the power and discretion resting in the Court is not contingent on an application being made by the accused concerned.. The provision is, in fact, more for the benefit of the co-accused who are present rather than the one who is incapable of attending. It is, therefore, evident that under subsection (1) the Court may, in its discretion, dispense with the personal attendance of the accused in case it considers it necessary, provided that the other requirements of the subsection are fulfilled.

 

215. As to the meaning of the phrase “incapable of remaining before the Court” valuable assistance can be derived from Emperor v. Radha Raman Mitra (A I R 1930 All. 817), Kali Das Banerjee and another v. The State (A I R 1954 Cal. 576), Trilochan Misra v. State (A I R 1953 Orissa 81), and Chiman Lal and others v. Parashar Singh (A I R 1957 Nag. 101). In these cases the view was generally expressed that these words in the context must refer to an accused’s physical incapacity to remain before the Court and that no accused is entitled under section 540-A, Cr. P. C. to any exemption from appearance in Court unless it is proved that he is physically incapable of remaining before the Court, although a somewhat wider meaning were assigned to this phrase by saying that it “related to some sort of incapacity from attendance arising either out of illness or some other reason such as social ban or peculiar customs of the class to which the parties belong.”

 

216. The term “incapable” is not defined in the Code, although incidentally it occurs in section 512 as well. For the purposes of elucidation only it may be mentioned that the phrase “incapable of giving evidence” also occurs in sections 32 and 33 of the Evidence Act. It will not be out of place to also mention here that in section 3 of the Evidence Act a “fact” is defined to mean and includes anything, state of things or relation of things “capable” of being perceived by the senses.

 

217. In the absence of any definition of the term “incapable” in the Code of Criminal Procedure, it is permissible to rely on its ordinary dictionary meanings. According to the Law Lexicon of British India by. Alyar, the term “incapable” is an absolute term denoting inadequate mental, or physical, or moral power, or general unfitness or inability. According to the Oxford English Dictionary the word “incapable” means not capable, and not having the capacity, power or fitness for a specified function, action etc. In Webster’s New International Dictionary of the English Language it is stated that in law the term “incapable” refers rather to the personal lack of the general ability, or power or understanding required to perform duties or exercise privileges, or to some general legal disqualification, as ineligibility; ‘incompetent’ often refers rather to lack of specific legal qualifications to perform or exercise, without implying anything as to personal condition. According to Funk and Wagnalls’ New Standard Dictionary of the English Language in law the term “incapable” usually refers to personal inability, as the inability to exercise mental, moral or physical powers, as with an ebriate, whereas ‘incompetent’, as a rule deals with the lack of general qualifications.

 

218. In the light of the above discussion, in my opinion, without attempting to lay down an exhaustive definition of the term “incapable” in the context of section 540-A of the Code, it only means one who, is not capable of appearing in or remaining before the Court at the hearing to discharge his functions and duties. It may be due to inadequate physical, mental or moral power in him to do so. In the context it refers to, the personal inability, unfitness, and debility in the accused to remain in Court and perform his functions and duties at the hearing. An accused who is infirm, too weak and unfit for reasons of his bad health and illness to appear and remain in Court may be said to be “incapable” of appearing before or remaining in Court at the hearing within the meanings of section 540-A of the Code.

 

HIGH COURT’S ORDER DISPENSING WITH BHUTTO’S ATTENDANCE WAS JUSTIFIED

 

219. With this exposition of the true legal position under section 540-A of the Code, let us now apply the same to the facts of this case before us. It is common ground that on 13-11-1977 Zulfikar Ali Bhutto appellant was not brought from jail to appear in Court at the hearing and it was reported that he would not be able to appear in Court for two days due to sickness. The medical certificate dated 14-11-1977 showed that the accused was suffering from respiratory infection and had also some gastric trouble. He was also having temperature. According to another report dated 15-11-1977 he was examined by Professor Iftikhar Ahmad, Secretary Health, Government of Punjab and was found to be suffering from acute influenza ‘ with debility and had temperature, severe nasal congestion and conjunctive congestion and was advised three days’ rest. On the next date of hearing on IS-11-1977 once again the accused could not appear in Court at the bearing and his learned counsel filed an application (Criminal Miscellaneous No. 1106-R of 1977) on behalf of the accused in Court. In paragraph 3 of this application the appellant admitted that he was running high temperature and had a severe attack of flue and that consequently he was not in a position to attend the Court. Even on 25th November 1977, the appellant wrote to the Superintendent, Jail that he had a severe attack of influenza combined with malaria and was slightly better but not fit enough to attend the’ Court at the hearing for over five hours at a stretch. Indeed in this connection it was common ground between the parties, and there can be no two opinions about it, that Zulfiqar Ali Bhutto appellant had been taken ill and was confined to bed from 13-11-1977 to 30-11-1977 and again on 14-12-1977. He was, consequently, incapable of appearing in and remaining before the Court at the hearings on these days. In the circumstances, therefore, in exercise of the discretion vested in it, the Court decided to dispense with his personal attendance in Court under section 540-A of the Code.

 

220. Paragraphs 1 to 3 of the above-mentioned application (Criminal Miscellaneous No. 1106-H of 197;) are reproduced below and it is stated :-

 

“(1) That Pakistan Times of, ,14th November, 1977 in reporting the proceedings of ‘13th November; 1.97’ in the above case, has reported that:----

 

“The Acting Chief Justice, Mr. Justice Mushtaq Hussain, who heads the Bench, observed that although under section 540-A of Cr. P. C. in the absence of one of the accused, his counsel could continue the cross-examination of the witnesses, yet the proceedings were being adjourned as a favour.

 

(2) That without prejudice to the interpretation of section 540-A, Cr. P. C., it is respectfully submitted that the petitioner has been running high temperature and had a severe attack of flue for the past three days. Consequently under the advice of the Doctor, he is not in a position to attend the Court. His counsel finds himself severely handicapped in cross-examining the prosecution witnesses in the absence of petitioner/accused from whom instructions are needed all the time.

 

(3) That if in spite of the circumstances, this Honourable Court considers that it can proceed with the trial in the absence of the petitioner and that the case could be adjourned only by way of a `favour’ then the petitioner submits that he does not want any favour as he bad already submitted in a previous application.”

 

In the end it was prayed in the application that in the interest of justice the cross-examination of the prosecution witnesses be deferred until his recovery. Similarly at the hearing on 15-11-1977 his learned counsel stated in Court that the accused may be able to recover from his ailment in two days, nonetheless he at the same time made a request for a sine die adjournment till such time his client was able to recover.

 

221. At the hearing on 15-11-1977 the Court simply told the learned counsel for Zulfiqar Ali Bhutto appellant to cross-examine the witness on 16-11-1977, and the case was thus adjourned for one day to enable the learned counsel to seek instructions from him meanwhile. From 16-11-1977 the evidence of witnesses in Court was recorded in the absence of the accused due to his illness but always in the presence of the team of his lawyers.

 

222. During this period on the 25th of November 1977 Zulfiqar Ali Bhutto appellant wrote to the Superintendent of Jail that he had a severe attack of influenza combined with malaria and was slightly better but was not fit enough to attend the Court for over five hours at a stretch. He, therefore, expressed the opinion that until he was fully recovered, it would not be in the interest of his health to attend the Court for the time being. On 26-11-1977, the learned counsel for Zulfiqar Ali Bhutto appellant informed the Court at the hearing that he, had met him a day before in jail and that he had no temperature but was only feeling the weakness. On this the Court constituted a Medical Board to medically examine the accused in jail. But he did not submit himself to the medical examination. According to him he had only subjective feeling of weakness and was of the view that nothing would be found on medical examination as he was not suffering from any organic disease.

 

223. It was in these circumstances that proceedings continued in Court in the absence of the accused for ten dates of hearing between 16-11-1977 to 30-11-1977. In this period a part of the cross-examination of P. W. 3 was conducted on 16-11-1977 and the. evidence of P. W. 4 to P. W. 16 and a part of the evidence of P. W. 17 was recorded in the absence of Zulfikar Ali Bhutto appellant. In Court he was all along represented by a team of lawyers who fully participated in the day to day proceedings and cross-examined the prosecution witnesses after having obtained daily instructions by meeting him in jail.

 

224. Similarly on 14-12-1977 Zulfikar Ali Bhutto appellant was not brought from jail to attend the hearing in Court on account of his illness. In his absence his learned counsel was asked by the Court to enquire from him if he wanted a team of doctors to examine him for treatment. The learned counsel, after having contacted the appellant on telephone, told the Court that he would like Dr. Mohammad Iqbal to examine him. On this the Court appointed a team of doctors including Dr; Mohammad Iqbal to examine him in jail. But he refused to submit to the examination by the Board constituted by Court and was examined by Dr. Mohammad Iqbal only. On 14-12-1977 the Court at the same time observed that the appellant was represented by a counsel and therefore, dispensed with his attendance under section 540-A of the Code to continue the proceedings. In this manner the Court recorded the statements of P. W. 28 and P. W. 30 and the statement of P. W. 31 Ghulam Hussain in examination-in-chief was also partly recorded in the absence of appellant but in the presence of his learned counsel on 14-12-1977 without any objection.

 

225. Before us the learned Special Public Prosecutor submitted that all these facts go to show that Zulfiqar Ali Bhutto appellant bad in fact fallen ill and was incapable of personally attending and remaining in Court at the hearings from 16-11-1977 to 30-11-1977 and again on 14-12-1977. In defence the learned counsel for the appellant did not dispute the fact that the appellant had in fact fallen ill and was unable and unfit to put in appearance in Court on account of his illness. Indeed this is even otherwise also borne out from the record. The medical certificates, the application dated 15-11-1917 (Cr. Mist. No. 1106-H of 1977), the letter dated 25-11-1977 sent by the appellant to the Superintendent, Jail and para. 16 of the application dated 18-12-1977, 5-1-1978 (Cr. Mist. 7-’VI of 1978) moved by the appellant in the trial Court, all go to establish that the appellant had fallen ill and was unable to appear in Court because of his prolonged illness during this period. He was, therefore, incapable of personally attending and remaining in Court at the hearing in those days within the meanings of section 540-A of the Code.

 

226. In view of the importance of this case, a large Bench of five Judges had been specially constituted for its disposal on the criminal original side of the High Court, and the prosecution evidence was being recorded almost from day to day as is usual in all murder trials. The importance attached to this case and the circumstances prevailing in the country demanded that it should be disposed of on the merits without any inordinate delay.1 It was in these circumstances that on 15-11-1977 the trial Court in its discretion decided to dispense with the formal attendance of the accused appellant at the hearing in Court and to proceed on with the trial in the) presence of his learned counsel under section 54C-A of the Code.

 

EFFECT OF THE FAILURE OF THE HIGH COURT TO PASS A FORMAL

 

ORDER UNDIR SECTION 540-A, CR. P. C. AND TO RECORD REASONS

 

227. But in this connection before us the learned counsel for Zulfiqar Ali Bhutto appellant submitted that the learned trial Bench in thus deciding to continue with the proceedings in the absence of his client had failed to pass any order, much less a speaking order as envisaged by section 540-A; that the Court did not properly comply with the mandatory requirements of the section ; and also failed to properly and judicially exercise the discretion vested in it under the law. He contended that the failure of the Court to record its reasons as required by the section was a patent illegality which vitiated the trial.

 

Needless to emphasise here that the law envisages strict compliance with this mode of exercise of jurisdiction. But this does not mean that any error, omission or failure to strictly comply with the mode prescribed for the exercise of this jurisdiction must necessarily in every case result in the vitiation of the trial.

 

228. It is evident that on 13-11-1977 when the appellant Zulfiqar Ali Bhutto was not brought from jail to appear in Court at the hearing because of his illness, the Court while allowing the adjournment to the appellant to 15-11-1977 for further evidence, had pointedly and expressly drawn the 1attention of his learned counsel, Mr. D. M. Awan to the provision of section 540-A of the Code. Even the appellant who was at the time lying ill in jail was left in no doubt about this order passed by the Court on 13-11-1977. In his own application (Cr. Miscellaneous No. 1106-H of 1977) filed in Court on 15-11-1977 reproduced above, he admitted that according to the Daily Pakistan Times; dated 14-11-1977, during the course of the proceeding in Court on 13-11-1977 the Acting Chief Justice, Mr. Justice Mushtaq Hussain, who heads the Bench, had observed that in the circumstances under section 540-A of Cr. P. C. in the absence of one of the accused, his counsel could continue the cross-examination of the witness. He further submitted in the application that without prejudice to the interpretation of section 540-A, Cr. P. C. he “had been running high temperature” and “had a severe attack of flue for the past three days” and consequently under the advice of the Doctor, he was “not in a position to attend the Court” and that if in spite of the circumstances, the Court considered that it could proceed with the trial in his absence then he did not want any adjournment as a favour to him. This application was actually before the Court on 15-11-1977 when it passed the impugned order. Moreover, the two medical reports dated 14-11-1977 and 15-11-1977 about appellant showed that he was ill and unable to, appear in Court at the hearing. Indeed, even according to the appellant himself he all along remained sick and was unfit to appear and remain in Court. In view of these admitted and incontrovertible facts patent on the face of the record the inevitable conclusion was and the Court must have satisfied itself that the appellant was incapable of appearing in Court, and had passed the order on 15-11-1977 in calling upon the learned counsel for the appellant to reassume the cross-examination of witness in his absence on 16-11-1977 after obtaining the necessary instructions from him. There could be no doubt, that in issuing this direction the Court was all along conscious of the provisions contained and had acted under section 540-A of the Code when it passed the two successive orders on 13-11-1977, 15-11-1977 and in proceeding with the trial on 16-11-1977 and directing the resumption of the cross-examination of the witness by his counsel in his absence. The above-mentioned application dated 15-11-1977 itself showed that even the appellant was also fully aware that in thus proceeding in his absence, the Court was acting in the exercise of the powers vested in it under section 540-A of the Code. In the face of these patent facts obvious on the very surface of the record it cannot be seriously contended that the trial Bench had not satisfied itself that the appellant “ was ‘ incapable of remaining before the Court within the meanings of section 540-A of the Code on 15-11-1977 before deciding  proceed on wit the case in the absence of the appellant on account of his illness. The course adopted was thus fully justified in the facts and circumstances of         the situation which bad arisen owing to the illness of the appellant.

 

229. As to the failure to record reasons it cannot be denied that in the impugned order there are no reasons at all recorded for dispensing with the personal attendance of the appellant at the hearing of the case.

 

OMISSION TO RECORD REASONS NOT MATERIAL, IF REQUIREMENTS

 

OF SLCTION OTHERWISE SATISFIED

 

230. But the basic requirement that matters is the satisfaction of the Judge or the Magistrate. It is an indispensable condition for the Judge or Magistrate that he must be satisfied about it before dispensing with the presence of the accused. The further requirement of the section for the recording of reasons for such satisfaction relates only to the form of the order, and is procedural only. Any such failure or omission in this behalf a by itself is not sufficient to adversely affect the substance and merits of the order, provided the other requirements of the section have been complied with. The law recognises a distinction between the elements or ingredients which are essential for the foundation of jurisdiction and the mode in which such jurisdiction is exercised.

 

231. Such a view was taken as to the identical provisions in section 540-A of the Indian Procedure Code in Mrityunjoy Chatterji and others v. The State (A I R 1955 Cal. 439). In that case one of the five accused, by name Pulin Mondal, fell ill, and the Court then passed a brief order saying : “Let the trial proceed with the four accused persons,” and the prosecution evidence was recorded in the absence of Pulin Mondal. The High Court set aside the conviction of Pulin Mondal as he was not represented by counsel in his absence, but it refused to interfere with the conviction of three others, observing that mere failure to pass an express order in terms of the second part of the section, separating the trial of the remaining accused from that of Pulin Mondal, did not vitiate the trial of the remaining three accessed and the defect, if any, was curable, as thereby no prejudice had been caused to them in their trial. In coming to these conclusions the High Court observed as under;

 

“Granting that there would be such contravention but for any appropriate statutory exception, it is quite clear that such exception would be furnished by the second part of section 540-A of the Code which empowers the Magistrate to order separate trial of the absent accused in such a case. There can be no question that this provision would have been applicable in this case and the actual proceeding with the trial of the other accused and the taking of evidence in the absence of Pulin would have been perfectly legal and quite regular, if only the learned trying Magistrate had made an order under this second part of section 540-A of the Code, directing a separate trial in the case of Pulin.

 

This however, he failed pr omitted to do and the defect, if any, in the trial of these co-accused really arose from this failure or omission.

 

It was thus, at the worst, an illegality which did not go to the root of the trying Magistrate’s jurisdiction to hold the trial. Such a trial is not absolutely prohibited by the Code but would have been perfectly legal, only if the learned trying Magistrate had availed of the enabling provision of section 540-A, second part, and exercised the relevant powers under that provision. It was thus curable under section 537 of the Code if, of course, no prejudice had been caused to the accused concerned on account of it.”

 

In the opinion of the Court their trial was conducted-to use the language of the Judicial Committee in the case of Pulukuri Kottaya v. Emperor (AIR 1947 P C 67) “substantially in the manner prescribed by the Code”, though, “in the course of such conduct” the irregularity committed by the trying Magistrate in his failure or omission to pass an order under the second part of section 540-A was curable.

 

232. The observations of this Court in Muhammad Ishague v. Nur Mahal Begum and others (P L D 1961 S C 426), are highly pertinent, and are of general application, although in that case they were made in connection with the requirements of section 145, Criminal Procedure Code. Subsection (1) of that section, which expressly lays down that whenever the Magistrate taking cognizance is “satisfied” from a police report or other information that a dispute likely to cause a breach of peace exists concerning any land, water or boundaries thereof, within the local limits of the jurisdiction, he “shall make an order in writing”, stating “the grounds of his being so satisfied” and requiring the parties to attend the Court in person, or by pleader. But contrary to these requirements the trying Magistrate in that case did not state the reasons upon which he had passed the preliminary order under section 145 (1) of the Code. In that connection this Court observed that : -

 

“it is necessary, according to the tenor of the section, that before an order thereunder can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied he shall make an order in writing `stating the grounds of his being so satisfied’. This statutory provision, therefore, does prescribe the mode for the exercise of the jurisdiction conferred by it and there can be no doubt the Magistrates exercising the said jurisdiction are expected to comply strictly with the said provisions of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is, in our opinion, too wide a proposition. In our view, there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of Criminal Procedure Code are that the Magistrate must be satisfied :-

 

(a) that a dispute likely to cause a breach of the peace exists,

 

(b) that the dispute refers to land or water or the boundaries thereof, and

 

(c) that such land or water is situated within the limits of his territorial jurisdiction.

 

If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied, in the initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non-compliance with a rule of procedure generally is not illegality vitiating the entire proceedings.

 

233. In that case this Court further observed that in such cases the important thing is to see whether there was material on the record upon which the satisfaction of the Magistrate could be at all grounded. If there exists material, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been a substantial compliance with the requirements of the said subsection and the defect is merely a technical defect. This case was followed with approval by this Court in Shahzada and others v. Malik Shams-ud-Din and others (P L D 1977 S C 237).

 

234. In another case in Deputy Legal Remembrancer v. Banu Singh and others (P L D 1977 S C 237) the facts were that in granting a pardon to one Mohendra Bid approver the Magistrate recorded a short note to the effect that the pardon was tendered to him and he did not record any reasons for doing so contrary to the mandatory requirements of section 337, Cr. P. C. In that connection the Court observed that the circumstances which preceded the grant of the pardon were such that the Magistrate may very properly can be said to have considered that they in themselves afforded sufficient reasons for the action without his recording any further reasons of his own. The Court observed:---

 

“Taking however his first point, viz., that the evidence of the approver is inadmissible because the pardon had not been tendered by the committing Magistrate in strict compliance with law, we are unable to agree in the opinion which he has expressed. The Magistrate who enquired into the case, has, it is true, recorded only a short note at the top of the deposition of Mohendra Bid to the effect that the pardon was tendered to him and that he understood and accepted the conditions. The Additional Sessions Judge has held that this is not a sufficient compliance with the law which requires that a Magistrate who tenders a pardon under section 337, Criminal Procedure Code, shall record his reasons for so doing, In this case, however, we are not prepared to hold that the omission, though it may be regarded as an irregularity, if indeed it can be placed so high, amounted to an illegality. The circumstances which preceded the grant of the pardon were such that the Magistrate may very properly have considered that they in themselves afforded sufficient reasons for his action without his recording any further reasons of his own.

 

Section 337(1) of the Code allows for the tender of pardon to an accomplice. In this connection subsection (1-A) of this section, lays down that every Magistrate who, tenders a pardon under subsection (1) “shall record reasons for so doing” In Emperor v. Shama Charan and others (151 C 1004) the Allahabad High Court held that this recording of reasons under this subsection is merely a matter relating to procedure and is not a condition precedent to the tender of pardon. In Bawa Faqir Singh v. Emperor (A I R 1938 P C 266) the Privy Council observed that this omission to record the reasons amounts only to an irregularity. Also in Rafiq Ahmad v. The State (3) it was held that the omission to record reasons for tendering pardon is a curable irregularity.

 

235. Similarly section 208 of the Code expressly lays down that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant on oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. But in that connection in Shamins v. The State and another (4) this Court has held that the language of this section does not lead to the inevitable inference that the examination of a complainant is a “sine qua crone” of valid proceedings, in all circumstances. There is no provision it’ the Code to the effect that a failure to follow the provisions of section ^ 00 in respect of examination of the complainant entails invalidation of the proceedings taken and the irregularity is curable under section 537 of the Code.

 

236. Here, at this stage it is not necessary to advert at any length to section 537, Cr. P. C., as this section has been discussed in greater detail elsewhere in this judgment; and it has been held that in determining whether an omission, error or irregularity, in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, the Court must look to the substance and not to technicalities ; and if the accused has had a fair trial, and has not been prejudiced in his defence, then the error, omission or irregularity would stand cured under the provisions of section 537 of the Code.

 

237. For this reason also, any infringement in the technical compliant with the provisions contained in section 540-A of the Code by the learned trial Bench in this case, in its omission to record the reason in the order dispensing with the personal attendance of Zulfiqar Ali Bhutto appellant, amounts to a mere irregularity curable under section 531 of the Code. As already stated, the error related merely to the form rather than the substance of the order passed by the Court, which was pre-eminently justified on the facts.

 

238. However, the learned counsel for Zulfiqar Ali Bhutto placed strong reliance on the case of the Lahore High Court reported as Pokhar Dots Ganga Ram v. Emperor (5), to contend that the omission was not curable. In that case in all eight accused persons including one Khem Chand, were tried together for offences under sections 302 and 307, I. P. C. The trial took place in the absence of them Chand who was ill at its commencement. A few days before the trial was due to commence the learned Judge summoned Khem Chand at Matwali and in the presence of the Public Prosecutor, Khem Chand and his counsel, but in the absence of the other accused, made an order dispensing with the attendance of Khem Chand at the trial. The trial afterwards proceeded in the presence of all the accused except-,Khem Chand, who was represented by a counsel. The trial Court eventually convicted seven out of the eight accused, including Khem Chand. In appeal their learned counsel raised an objection to the validity of the trial, on the ground that the power to dispense with the presence of an accused person is defined in section 540-A of the Code, that the learned Judge had not complied with the provisions of the section, which required the presence of all the accused “before the Court” as a condition precedent to an order dispensing with the attendance of one of them during the further proceedings ; and that the trial of the accused should have already commenced before any order of dispensation could be passed. In reply, the learned Advocate-General, stated that although it might be argued that even the trial of Khem Chand was good, yet “for the purpose of argument” he conceded that the trial so far as he was concerned was bad. In spite of this the Court held as under :--

 

“We ourselves have not been able to discover any ground for holding the trial of Khem Chand good. Normally, a trial in the absence of the accused is a nullity and it is only by virtue of section 540-A that this consequence of the absence of the accused can be avoided; if the requirements of the section are not fulfilled, the trial remains a nullity. The learned Advocate-General sought to ignore the fact that Khem Chand had been tried with his co-accused and argued that the trial should be treated as the trial of the other seven accused, the inclusion of Khem Chand being ignored ; that the trial of each accused was a separate trial, and that eight trials were actually conducted at the same time. No authority for any such view of a joint trial was cited to us.

 

In the absence of such authority, we are constrained to hold that a joint trial is a single trial and cannot be considered as a separate trial of each person accused ; it is one and indivisible. It follows, we think, that an illegality which vitiates the trial so far as one of the accused is concerned, prevents the trial from holding good in respect of the remaining accused. We have therefore no option but to hold the trial bad, and order the appellants to be retried by the Sessions Judge Mianwali.”

 

239. However, this case was dissented from in Morityunjoy Chatterjee and others v. The State by the Calcutta High Court, which was of the opinion that a defect of the kind was curable under section 537 of the Code, and observed as under :-

 

“I do not, therefore, agree with the broad proposition, laid down in the Lahore case of Pakhar Das-Ganga Rang v. Emperor A I R 1938 Lah. 216 (D), relied on by the petitioners’ Advocate. It states the proposition in absolute terms and it seems to have gone too far without due regard to section 537 of the Code. The actual decision in the case may have been justified in spite of that section on the ground of prejudice, but the statement of the law, as contained in that judgment, is certainly too wide to be reconcilable with the Privy Council decision in AIR1947PC67.”

 

240. I am inclined to agree with these observations. Not only in the Lahore judgment the proposition laid down is too wide to be reconcilable with the later decision by the Privy Council in Pulukurl Kottaya v. King Emperor (AIR 1947 P C 67) on the true interpretation of section 537 of the Code, it is rendered all the mare untenable after the amendment introduced in section 537 of-the Code in Pakistan by the Law Reforms Ordinance, whereby within its scope and purview any error, omission or irregularity in the impugned order or even in the mode of trial is curable, provided it has not occasioned any failure of justice.

 

241. Before us the learned counsel for the Defence in his final reply relied on Thakur Singh and others v. Emperor (A I R 1927 Lah. 781), Began Singh v. King Emperor (A I R 1928 Pat. 143) and Sukhanraj v. State (A I R 1967 Raj. 267) to contend that the illegalities in the compliance of the provisions contained in section 353, Cr. P. C. are not curable under section 537, and are sufficient to vitiate the trial. In the first mentioned case three persons were prosecuted and tried for murder of two persons in two trials. The defence evidence given by the accused in the first trial was, with consent, treated as evidence in the second case. The Court held that defence evidence in the second trial was not recorded in accordance with the requirements of section 353 in the presence of the accused and that the irregularity vitiated the trial. In the second case also the facts were almost similar. The evidence recorded in one case was treated as evidence in the other case as well. The Court held that the mandatory requirement of section 353, Cr. P. C. is that the evidence must be taken down in the presence of the accused. A contravention of this express provision goes to the root of the case and was held to be sufficient to vitiate the trial. Also in the third mentioned case the recording of the copies of statements of witnesses in one case as evidence in another case without examining the witness was held to be illegal, sufficient to vitiate the trial and the irregularity was not curable under section 537 of the Code. Similarly in Blshnath and others v. Emperor (A I R 1935 CDudh 488) the Court observed that in criminal trials, all evidence should be recorded in the presence of the accused and any breach of the rule vitiates the trial altogether. All these cases cited on behalf of the appellant are clearly distinguishable, as the illegality committed at the trial in these cases related to the jurisdiction of the Court inasmuch as section 353 is mandatory and it expressly lays down that with certain exceptions the evidence of witnesses shall be taken in the presence of the accused. In these cases no exception of the kind embodied in section 540-A was apparently found to be available.

 

242. Mr. Yahya Bakbtiar also referred to Emperor v. Sukh Dev and others (A I R 1929 Lah. 705), which is not a case under section 537, Cr. P. C. In that case a Magistrate conducted an inquiry in the absence of an accused by appointing a counsel for him at State expense, and an application was made in that behalf in the High Court. But the High Court dismissed the application as in its opinion no Court had any authority to force upon a prisoner the services of a counsel, if he was unwilling to accept them. If at all, this case goes against the appellant inasmuch as it proceeds on the basis that under section 540-A the attendance of an accused can be dispensed with against his wishes provided he is represented by his pleader. All these cases are therefore of no assistance to the defence.

 

243. It may be stated here that at an early stage of the commencement of the trial, at the request of the learned defence counsel, it was arranged with the prosecution, that the names and particulars of the witnesses to be produced on a certain day, used to be supplied to him in advance. This was done during the course of the whole trial. Zulfiqar Ali Bhutto accused admitted in his statement, recorded on 28-1-1978, under section 342, Cr. P. C. that “lists of prosecution witnesses are given in advance” (Vol. III p. 749). The trial Court has also referred to it in para. 20(i) of its order dated 9-1-1978 (Order-Sheets, p. 124). His learned counsel also used to receive instructions from him daily as admitted by Zulfiqar Ali Bhutto appellant in his application dated 18-12-1977/5-1-1978 that Mr. D, M. Awan sought instructions from him daily by going to the Kot Lakhpat Jail (Volume of Applications, p. 137). In accordance with this practice the names o prosecution witnesses, whose statements were to be recorded on a certain day, were in fact intimated in advance to the defence counsel who was all along allowed the opportunity to see the appellant in jail and receive daily instructions from him for cross-examination of the prosecution witnesses examined in his absence from 16-11-1977 to 30-11-1917 and on 14-12-1977. The statement of these witnesses recorded under sections 161 and 164, Cr. P. C. had also been supplied to the appellant in advance about the version of the prosecution case about which they were expected to depose. As it is the appellant was all along represented in Court by a team of lawyers in his absence due to illness. They were allowed ample opportunity to see him in jail and to receive day to day instructions required by them for the cross-examination of each individual witness produced by the prosecution. In Court they were allowed full opportunity to cross-examine the prosecution witnesses. On the whole these witnesses were in fact subjected to lengthy and searching cross-examination by his learned counsel at the trial in his absence.

 

244. It does not appear that in the course of the examination of the prosecution witnesses in question the learned counsel for the appellant had actually experienced any difficulty or was in fact handicapped conducting the cross-examination on them in the absence of his client. At least none was in fact brought to the notice of the Court in the course of the cross-1examination of the witnesses or even afterwards, after the appellant had put in appearance after he had recovered from his illness. Indeed he could have applied to the trial Court at the earliest for the recall of any of the witnesses examined in the absence for further cross-examination if he was not in fact satisfied with it. Even in this Court in appeal at the hearing before us neither the appellant nor his learned counsel, but for the general and vague allegations, was able to show and demonstrate to our satisfaction that the cross-examination actually conducted on the witnesses in his absence was lacking in any material respect and that thereby he was in fact prejudiced and adversely affected or handicapped in his defence. In this connection it will not be out of place to mention here that in the course of the hearing of this appeal a Miscellaneous Application No. 7 of 1978 was filed before us on behalf of the appellant praying for the recall of Mr. W. R. Welch P. W. 4 only, out of the number of witnesses who had been thus examined in the absence of the appellant on account of his illness. In relation to this witness also all that is alleged in the application was that be is a Catholic Christian, but he gave his evidence before the trial Bench on solemn affirmation instead of on Bible as prescribed for Christians to avoid telling the truth, and that owing to the absence of the appellant he could not be cross- examined properly and effectively. This application was dismissed by u. on 23-12-1978 and the detailed reasons for it are set out in another par of this judgment. Suffice it to mention that it appears that this precise plea taken in the application was now raised only as an afterthought. Otherwise, even the statement of this witness under section 164, Cr. P. C. (of which an advance copy had already been supplied to the accused) was recorded on solemn affirmation and not on the Bible and about it the appellant was, therefore, fully aware. In fact in this Court during the course of the arguments addressed to us on behalf of the appellant it was even suggested that the witness had already embraced Islam merely for the sake of marrying a Muslim lady for whom he had a fancy. Be that as it may, there is no explanation ‘before us whatever, as to why this precise objection was not promptly raised before the trial Court, immediately after the appellant had appeared in Court after his recovery from the illness.

 

245. The explanation to section 537, Cr. P. C. expressly lays down that in determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. As discussed above after the appellant had recovered from his ailments and appeared in Court, he never applied to the Court and raised any such timely objection that his counsel was in fact handicapped and that the cross-examination of the prosecution witnesses actually conducted was not to his complete satisfaction and had remained inconclusive or was wanting in any material respect and for the timely rectification of the wrong, if any, thus done to him.

 

246. In these circumstances, the proceedings of the High Court held on different dates in the absence of appellant Zulflqar Ali Bhutto because of his illness were fully covered by the provisions of section 540-A of the Code. He was all the time represented by a team of lawyers who fully had effectively ‘a participated in the proceedings on these days, and conducted lengthy cross examination after obtaining daily instructions from the appellant. I am, therefore, of the opinion that no prejudice was caused to the appellant by the decision of the High Court to dispense ‘with his presence on the dates in question, and to continue with the case in the pre3ence of his lawyers. No objection as to inadequacy of instructions, or insufficiency of cross-examination of the relevant witnesses was taken by the appellant after he rejoined the proceedings on recovering from his illness on both the occasions.  For all these reasons the omission of the High Court to record its reasons, as required by section 540-A was a mere technical omission, not touching the substance of the matter, and, therefore, fully curable under section 537, Cr. P. C.

 

THE “DAMN IT” INCIDENT ON 17-12-1977 DURING THE TRIAL

 

247. I am now left to deal with the unfortunate incident that took place in Court on 17-12-1977. Its facts in detail have already been stated. At this place it is enough to recall that as his counsel, Mr. D. M. Awan, was addressing the Court, appellant Zulfiqar Ali Bhutto while trying to draw his attention uttered the words “damn it”. The Court told the) appellant not to use such words, but he insisted that it was not a bad word’. The Court then asked his learned counsel, Mr. D. M. Awan to resume hiss submission. On this the appellant uttered the words : “I have had enough”. The Court then asked him enough of what and he replied : “of humiliation and insult”. According to the Court, in view of this persistent unruly behaviour he was asked to be taken out of the Court. After he was taken out, Mr. D. M. Awan was asked to meet his client during the recess and to request him to help keep the dignity and decorum of the Court and not to adopt an unruly attitude, for otherwise he would be liable under the law and the Jail Manual. After the recess Mr. D. M. Awan informed the Court that be had talked to the appellant but the latter had told him the he knew the law and the Jail Manual. On this the Court passed an order that in view of his persistent attitude and because of his own admittedly disturbed state of mind, the appellant was incapable of remaining in Court for the day and therefore, his presence for the rest of the day was dispensed with.

 

248. In the absence of the appellant on 17-12-1977, Mr. Irshad Ahmad Qureshi, learned counsel for the three confessing accused, conducted his cross-examination of P. W. 31 Ghulam Hussain approver. The Court then observed that P. W. Ghulam Hussain was an important witness and it would be proper that he should be cross-examined by Mr. D. M. Awan in the presence of the appellant. The Court, accordingly adjourned the hearing to 18-12-1977, when the appellant put in his appearance along with his counsel to proceed with the cross-examination of the witnesses.

 

249. It is, indeed, deplorable that such a situation should have developed in the face of the trial Beach. It no doubt appears that at the time the appellant was in a disturbed state of mind on having learnt in Court about the head injury unfortunately received by his wife. This must have come to him as a shock, and one cannot help sympathizing with him, but I am constrained to observe that even then he was expected to maintain the decorum of the Court, which he failed to do. He persisted in his discourteous behaviour, and gratuitously observed that he had had enough of humiliation and insults. Even after having been given time for reflection he refused to make amends. He remained adamant and was not willing to extend the assurance wanted by the Court that he would help keep the dignity and r” decorum of the Court, and not adopt an unruly attitude.

 

250. I have already stated earlier that the word “incapable” as use in section 540-A of the Code has reference to the physical, mental or moral state of the accused which makes him unable or unfit to remain in Court and perform his obligations ant duties at the hearing of the case against him. From the facts analysed in the preceding paragraph, it is abundantly clear that on this particular day the appellant was incapable of remaining before the Court due to his disturbed mental state. This was fully brought out by his refusal to make amends even after having time for reflection. His case, therefore, fell squarely within the ambit of section 540-Ai of the Code.

 

251. Public trial means an orderly trial and not a disorderly one. Therefore, while an accused has a right to be present at his trial, he is at the same time under a corresponding duty to help keep the decorum and dignity h of the Court by his good behaviour, In Re : Robert Edward Wenvard Jones ((1972) 56 Cr. App. Rep. 413) it was laid down that whether a defendant be on bail or in custody, and whether he be represented by counsel or not, he has a right to be present at his trial, unless he abuses that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour, in which case the Judge may have him removed and may proceed with the trial in his absence, or may discharge the jury. In the State v. Ananta Singh and others (1972 Cr. L J 1327) a Division Bench of the Calcutta High Court has held that a direction to expel from the Court-room an obstreperous accused who renders a fair trial impossible by his misbehaviour and to exclude him from his own trial comes within the sanction under section 561-A and would not be inconsistent into any provision of the Code including sections 353 and 540-A and the Court can proceed with the trial of the expelled accused by recording evidence in his absence, but accused can reclaim his right to be present at the trial on his expressing bona fide willingness to behave properly. These cases fully support the conclusion reached by me.

 

252. In conclusion, I might also mention that although on that date in the absence of the appellant from the Court, Mr. Irshad Ahmad Qureshi, learned counsel for the confessing accused, concluded his cross-examination of approver Ghulam Hussain, when learned counsel for appellant Zulfiqar Ali Bhutto was present in Court, yet the Court suo motu postponed the crossexamination of this important witness by appellant Zulfiqar Ali Bhutto’s counsel to the next day, when the appellant rejoined the proceedings. In these circumstances it does not appear that any prejudice whatsoever was at all caused to the appellant by the cross-examination of Ghulam Hussain conducted by the learned counsel for the co-accused in his absence on 17-12-1977. This part of the objection also, therefore, fails.

 

Non-Supply of copies of Police Statements of certain witnesses of the Defence

 

253. Inow come to the question of the effect of the failure of the prosecution to supply to the accused copies of the statements of Masood Mahmood (P. W. 2.1, Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34), recorded by the police during the investigation of the case.

 

254. It appears that Masood Mahmood (P. W. 2) and Ghulam Hussain (P. W. 31) were initially joined as accused and were interrogated as such, the former by Abdul Khaliq (P. W. 41), and the latter by Muhammad Boota (P. W. 39), and the substance of their statements was incorporated in the case diaries of 23-8-1977 and 27-7-1977 respectively. Admittedly copies of these statements were not supplied to the defence. Similarly, a short statement of Abdul Hayee Niazi (P. W. 34), who originally investigated the case in 1974, was also recorded during the investigation by Muhammad Boota (P. W. 39), on 5-8-1977, which too was incorporated in the case diaries and also not supplied to the defence. The reason given for not supplying the copies of their statements to the accused is that these statements were not recorded under section 161, Cr. P. C., but were received in the case diaries under section 172, Cr. P. C. and, therefore, the prosecution was not obliged to supply their copies, unless the accused had themselves asked for them.

 

225. The case of the appellant is that these statements were reduced into writing and were in reality statements under section 161, Cr. P. C. even though they were incorporated in the diary, instead of being kept separate. Thus notwithstanding the fact that these statements were embodied in the case diaries they were not distinguishable from the statements recorded under section 161, Cr. P. C. and ought, therefore, to have been supplied to the defence along with the statements of all other witnesses recorded under section 161, Cr. P. C., seven days before the commencement of the trial, under the provisions of the newly-added section 265-C, Cr. P. C. even without any specific demand for them in this behalf. And as this was not done, the evidence of Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34) given at the trial was liable to be excluded and could not be taken into account. In support of this contention reliance was placed on Faiz Ahmad v. State (P L D 1960 S C 8) and Muhammad Ashraf v. State (A I R 1928 Lah. 257). In both these cases the evidence of the witness, a copy of whose statement made before the Police was not supplied to the defence, was excluded from consideration.

 

256. We find that the learned Judge in the High Court who decided Muhammad Ashraf’s case has purported only to follow the ratio in Faiz Ahmad’s case. The said case, therefore, requires to be considered in some detail. In that case the Investigating Officer had incorporated the substance of the statement made by the approver in the course of the investigation in the police diary. At the trial when counsel for the appellant asked for a copy of the statement of the approver made by him during the investigation he was told that no such statement had been recorded by the police under section 161 of the Cr. P. C. The appellant was convicted of murder on the basis of the testimony of the approver and the circumstantial evidence in the case. He appealed to the High Court and contended that since the record of the statement of the approver to the police had been prepared during the investigation, the refusal to supply a copy of the statement for the purposes of cross-examining him vitiated the trial. A copy of the approver’s statement was offered to the appellant’s counsel during the bearing of the appeal, but was refined. The substance of this statement was then read out to the counsel and, following the precedent in Hazara Singh’s case (P L D 1968 Lah. 694), the High Court informed the counsel of the appellant that any contradiction between the approver’s statement to the police and the evidence given by him in Court could be taken as having remained unexplained. The High Court discovered two such contradictions, but instead of treating them as unexplained, proceeded to find an explanation for both and maintained the conviction. The Supreme Court examined the question whether the procedure adopted by the High Court was in conformity with law and held that having assured the counsel for the appellant that any contradiction between the statement of the approver to the Police and his evidence in Court would be treated as unexplained, it had contravened the assurance by discovering an explanation for the contradictions found. It was, however, further observed that the procedure suggested in Hazara Singh,’s case was not quite in accordance with the principles enunciated by the Privy Council in Pulukuri Kotayya v. King-Emperor (741 A 65) inasmuch as the mechanical mode of treating contradictions as unexplained could not be expected to produce the same result as actual cross-examination of those contradictions, which might completely break down the witness.

 

257. The Supreme Court then went on to discuss the possible courses which the High Court could adopt in such circumstances. The High Court could, it was observed, either order a retrial ; or, if the irregularity was found to have occasioned a failure of justice, recall the approver, supply a copy of his statement to the defence counsel and direct him to cross-examine the approver. It could also exclude the evidence of the approver from consideration, and this was the course adopted in that case by the Supreme Court itself ; but in spite of doing so the appeal was dismissed on the ground that the conviction of the appellant could be maintained even after excluding the evidence of the approver on the circumstantial evidence. It was, however, at the same time observed that a re-trial or exclusion of a witness’s testimony was not the necessary result of the refusal to supply the copy of the police statement of the witness to the accused, as the irregularity contemplated was within the kind of irregularities mentioned in section 537, Cr. P. C. This statement was clarified by observing that where no copy was, ever supplied at the trial and the contents ref the statement were never disclosed to the accused, the irregularity might be to strong point in appeal against conviction and raise an irresistible interference of prejudice, through the interference was not irrebuttable; and where a copy was applied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused was unable to suggest that cross-examination of the witness as to the alleged omission or contradiction might have led to the breakdown of the witness or a material part of his testimony, the Court could not set aside the conviction. In this connection the observations of the Privy Council in Pulukuri Kotayya v. King-Emperor were also taken note of.

 

258. - The above analysis of Faiz Ahmad’s case reveals that the failure by the prosecution to supply a copy of the statement of a witness made,., before the police does not necessarily imply that the Court should exclude H the evidence of such witnesses. In fact, according to the said judgment, it is open to the Court to follow any of the following courses;

 

(a) Order a re-trial if it finds that the irregularity has occasioned a failure of justice.

 

(b) Exclude the testimony given by the witness at the trial.

 

(c) Recall the witness, supply a copy of his statement to the defence counsel and direct him to cross-examine him.

 

(d) Apprise the defence counsel of the contents of the statement and supply a copy of it to him and if he is unable to suggest that the cross-examination of the witness, as to an alleged omission or contradiction in the statement, might lead to a breakdown of the witness or a material part of his testimony, ignore the irregularity in not supplying a copy of the statement to the accused at the trial on the principle that the irregularity not having prejudiced the accused or occasioned any failure of justice is of the kind of irregularities mentioned in section 537, Cr. P. C.

 

259. In Muhammad Ashraf’s case a learned Single Judge of the Lahore High Court, relying on one observation in Faiz Ahmad’s case, vie. “where no copy was ever supplied at the trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an irresistible inference of prejudice”, excluded from consideration the evidence of the witness whose statement made before the police was not supplied to the defence. But this decision purporting as it does to follow Faiz Ahmad’s case does not. carry the matter any further. However, on the basis of the above judgments it is contended on behalf of the appellants that the evidence of Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34) should be excluded from consideration.

 

260. Mr. Ejaz Hussain Batalvi has submitted a two-fold reply : Firstly, that statements of the witnesses in question were embodied in the case diaries maintained under section 172, Cr. P. C. by the Investigating Officers and these statements were not synonymous with the statements required to be separately recorded under section 161, Cr. P. C., and consequently the prosecution was not obliged to supply the copies of these statements to the accused under section 265-C, Cr. P. C. And, secondly, even if it was obligatory to supply the copies of the said statements, no prejudice, as a matter of fact, has been caused to the accused by not supplying the statements in question.

 

261. In order to properly appreciate the legal position the relevant portions of the pro-visions of sections 161, 162, 172, 265-C and 537, Cr. P. C. and section 145 of the Evidence Act are reproduced below;

 

“(a) Section 161, Cr. P. C. provides :

 

(1) Any Police Officer making an investigation under this Chapter ............ may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

 

(2)-------------------------

 

(3) The Police Officer may reduce into writing arty statement made to him in the course of an examination, under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records.

 

(b) Section 162, Cr. P. C. .Statements to Police not to be signed-Use of such statements in evidence..-(1) No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such state meat was made;

 

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act.

 

(2)------------------

 

(c) Section 172, Cr. P. C. Diary of proceedings in Investigation.--(1) Every Police Officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

 

(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court ; put, if they are used by the Police Officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such Police Officer, the provisions of the Evidence Act, 1872, section 161 or section 145, as the case may be, shall apply.

 

(3) Section 145 of the Evidence Act. Cross-examination as to previous statement in writing;----A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

 

(e) 265, C, Cr. P. C. Supply of statements and documents to the accused.-

 

(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:

 

(a) ...........................

 

(b) ...........................

 

(c) the statements of all witnesses recorded under sections 161 and 164.”

 

262. The first question, therefore, that arises is whether the statements of Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34) which were embodied in the case diaries can be treated as statements under section 161, Cr. P. C., which the prosecution was bound to supply to the defence, even without their asking for them.

 

263. On the question whether the statements recorded in the case diaries by the police could not be construed as statements recorded under section 161, Cr. P. C., the history of legislation in relation to section 162, Cr. P. C. would be useful. The Code of Criminal Procedure was enforced in the sub-continent for the first time in 1861. It was substituted by the Code of Criminal Procedure of 1872. The relevant sections 145 and 147 of the Code of 1861 were substantially refrained as sections 119 and 121 in the Code of 1872. The relevant provisions of these two sections were as under;

 

“119 ----------No statement so reduced into writing shall be signed by the person making it, nor shall it be treated as part of the record or used as evidence.

 

121. No Police Officer shall record any statement or any admission or confession of guilt, which may be made before him by a person accused of any offence Provided that nothing in this section precludes a Police Officer from reducing any such statement or admission or confession into writing for his own information or guidance, or from giving evidence of any dying declaration.”

 

264. The Code of 1872 was repealed and substituted by the Code of 1882. In this Code, the subject-matter of the aforementioned sections 119 and 121 of the Code of 1872 were consolidated in one section bearing No. 162, which reads as under:- ---

 

“162. No statement, other than a dying declaration, made by any person to a Police Officer in the course of an investigation under this Chapter, shall if reduced to writing, be signed by the person making it or be used as evidence against the accused.”

 

Section 145 of the Evidence Act had provided for the confrontation of a witness with his previous statement.

 

265. The language of section 162 of the Code of 1882 was so interpreted as to allow an accused person to see the statement of a person appearing as a witness for the persecution and recorded by the Police Officer during the course of the investigation for the purpose of confrontation under section 145 of the Evidence Act, but he was not entitled to see the statement of a witness appearing in the case diary maintained under section 172, Cr. P. C. and not separately prepared under section 161 of the Code of Criminal Procedure. A question arose before the Allahabad High Court in Queen v. Mannu (I L R 19 All. 390) whether statements of prosecution witnesses could be seen by the accused when they were incorporated in the case diary.

 

266. The case was heard by a Full Bench of six Judges. Four learned Judges were of the opinion that the statements recorded under section 172 were privileged and could not be seen by the accused or his agent, while the remaining two Judges were of the contrary view. While explaining the majority view, the learned Chief Justice Mr. Justice Edge observed as follows:----

 

“There is no provision in section 172 of the Code of Criminal Procedure, enabling the Court, the prosecution or the accused to use the special diary for the purpose of contradicting any witness other than the Police Officer who made it, and the necessary implication is that the special diary cannot be used to contradict any witness other than the Police Officer who made it. Section 145 ‘of the Indian Evidence Act, 1872, does not either extend or control the provisions of section 172 of the Code of Criminal Procedure. It is only if the Court uses the special diary for the purpose of contradicting the Police Officer who made it that section 145 of the Indian Evidence Act, 1872, applies, and in such case it applies for that purpose only, and not for the purpose of enabling the Court or a party to contradict any other witness in the case, or to show it or part of its contents to any other witness . . . . It is not enacted in section 172 of the Code of Criminal Procedure by reference to section 145 of the Indian Evidence Act, 1872, or otherwise that if the special diary is used by the Court to contradict the Police Officer who made it, it may thereupon or thereafter be used to contradict any other witness in the case.”

 

267. It was further observed :--

 

“Neither the accused nor his agent is entitled under section 172 of the Code of Criminal Procedure to see the special diary for any purpose unless it has been used by the Court for enabling the Police Officer who made it to refresh his memory or for the purpose of contradicting him-------In my opinion the plain meaning of section 172 is that the special diary, no matter what it may contain, is absolutely privileged, unless it is used to enable the Police Officer who made it to refresh his memory or is used for the purpose of contradicting him--------It is a privilege which cannot depend upon the question as to whether the Police Officer who made the special diary did or did not insert in the special diary extraneous matter, nor can it depend upon the question as to whether or not the Police Officer made the special diary in the particular form which is approved by the Court.” .

 

268. The two Judges, who were in a minority, took the view that statements under section 161 reduced into writing could not be withheld from the accused only because instead of being kept separate they were incorporated in the diary. However, the majority judgment which prevailed was that if a statement of a witness was recorded in the diary it acquired privilege conferred by section 172 of the Code of Criminal Procedure, and. could be used only for the limited purpose specified therein and it could not be seen by the accused or his agent.

 

269. The Code of Criminal Procedure 1882 was repealed and was substituted by the Code of Criminal Procedure of 1893 ( Act V of 1898), which received the assent of the Governor-General on the 22nd March, 1898.

 

270. Section 162 of the Code of 1882 was reframed in the Code of 1898 and read as under:-

 

“162.-(1) No statement made by any person: to a Police Officer in the course of an investigation under this Chapter shall, if taken down in writing, he signed by the person making it, nor shall such writing be used as evidence:

 

Provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof; and such statement may be used to impeach the credit of such witness in the manner provided by the Indian Evidence Act, 1872.

 

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Indian Evidence Act, 1872.”

 

271. It may be pointed out that judicial divergence continued to prevail as to the use which could be made of notes recorded in police diaries of statements made by witnesses to Investigating Officers. In a series of cases, namely, Bikao Khan v. The Queen-Empress (I L R 16 Cal. 610) Sheru Sha and others v. The Queen-Empress (I L R 20 Cal. 643) and Dadan Gazi v. Emperor (I L R 33 Cal. 1023) it was held by the Calcutta High Court that the statements of witnesses taken by a Police Officer under section 161, Cr. P. C. were not a legitimate portion of the diary and were not, therefore, privileged and that the accused had a right to call for and inspect them; that their incorporation in a police diary was an evasion of the law, intended to deprive  be accused of such right.

 

272. The Legislature, therefore, further amended subsection (1) of section 162 as incorporated in the 1898 Code by the Code of Criminal Procedure (Amendment) Act of 1923 (Act XVIII). It reads thus:-

 

“162.-(l) No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof; whether in a police Diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;

 

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof, art order that Pry part of such a statement, if duly proved, may be

 

Use to contradict such witness in the manner provided by section 145 of the Indian Evidence Act 1872. When any part of such statement is so used, any part thereof may also be used to the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

 

Provided further---------------

 

273. As a result of the amendment carried out in 1923, statements recorded in the Police Diaries were expressly included in subsection (1) of section 162 and if any statement of a witness was recorded in a police diary under section 172,- Cr. P. C. the police could not claim privilege. Thus whatever opinion might be held as to whether a diary is a proper place for statements, the police cannot by entering the statements in the case diaries under section 172, Cr. P. C. protect them from the provisions of section 162, and thus were liable to be produced under conditions laid down in the latter section i.e. inter alia the supply of the copies was made subject to the accused asking for them at the time when the witness is called by the prosecution.

 

274. This was the state of the law in 1972 when section 265-C was added in the Code of Criminal Procedure through the Law Reforms Ordinance, 1972.

 

275. The submission of Mr. Batalvi was that even though the newly-added section 265-C, Cr. P. C. casts an obligation upon the prosecution to supply copies of the statements separately recorded under section 161, Cr. P. C., the law regarding the statements incorporated in the Police Diary remains unaltered, that is, that the accused must ask for them, as laid down by section 162 itself, and if the accused does not ask for them, the prosecution, even under the amended law, is not obliged to supply them to the accused.

 

276. Section 265-C, Cr. P. C. bas brought significant changes in the law consequent upon the abolition of commitment proceedings in the trial of serious offences. For instance, in all cases instituted upon a police report; copies of statements under section 161, Cr. P. C. shall be supplied free of cost to the accused, not later than seven days before the commencement of the trial. This provision impliedly repeals the provisions of section 162, Cr. P. C. to the extent that copies of the statements must now be supplied ray the State seven days before the commencement of the trial, and it is not necessary to wait till the witness is called by the prosecution, or the accused asks fur them. The question, therefore, only is whether, as contended for by Mr. Batalvi, this obligation extends to supplying copies of the statements separately recorded under section 161, Cr. P. C. and not to statements recorded in the police diaries, which the accused must ask for as hithertofore, in accordance with the provisions of section 162, Cr. P. C.?

 

277. It is to be noted that under the provisions of section 161, Cr. P. C. wherever the police officer reduces into writing the statement of any person during the investigation of the case, he must make a separate record of such a statement, i.e. it should not be incorporated in the case diary but’ kept separately. This requirement is reiterated in rule 25.18 of the Punjab Police Rules (which rules were adopted in the relevant regard by the F. I. A. which investigated this case), wherein it is laid down that the statements recorded by an investigating officer under section 161 of the Code of Criminal Procedure shall not form part of the case diary prescribed by section 172, but shall be recorded separately and attached to the case diary. Under the newly-added section 265-C the prosecution is under an obligation to supply to the accused copies of the statements recorded under sections 161 and 164t; Cr. P. C. but no mention is made of statements recorded in the case diaries under section 172, Cr. P. C. The difficulty arises where the Police Office does not separately record the statement of a witness as required by section 161, Cr. P. C., but embodies it in the diary maintained under section 172, Cr. P. C., presumably as a statement of the circumstances ascertained through the investigation.

 

278. After having heard the learned counsel for the parties at length, I am inclined to agree with the learned counsel for the appellant that where a statement has been made to the police by a person during the investigation, the Police Officer should record it separately in terms of section 161(3), Cr. P. C. Where, however, he does not do so but proceeds to incorporate it in the case diary, the said statement should be construed as a statement under section 161, Cr. P. C., provided of course it is in substance and essence a statement of the witness and not merely a statement of the circumstances ascertained through investigation. Thus it is the nature of the statement and not the label given to it which will determine its real character. The 3 provisions of section 265-C are salutary and enacted for the benefit of the accused, conferring as they do a valuable right in his favour of being apprised of the case set up against him. This right cannot be taken away o evaded by allowing the Investigating Officer of misusing his authority by incorporating in the case diary the statements recorded by him during the investigation which, though in spirit and essence fall within the purview of section 161, Cr. P. C. but are erroneously or mischievously embodied by him in the case diaries. This safeguard has become all the more necessary as commitment proceedings have been abolished and the accused deprived of the opportunity of becoming cognisant of the evidence being led against him before the commencement of the trial. Similarly, the warrant procedure has also been done away with, and a provision analogous to section 265-C has been embodied in section 241-A of the Code dealing with the trial of summons cases, with the result that statements to the police are the only material available to him before he enters upon his trial. Hence; it is necessary to construe the provisions of section 265-C (and of 241-A) liberally and in the spirit in which they have been enacted. The interpretation contended for by the learned counsel for the prosecution overlooks the history and background of this legislation. The obligation created by these provisions cannot be evaded by merely incorporating the statements, which really fall under section 161, Cr. P. C., in his case diaries by the Investigating Officer.

 

279. Mr. Batalvi pointed out that witnesses Masood Mahmood and Ghulam Hussain were initially accused persons ; and as the Courts have deprecated the practice of obtaining statements from the accused by the police (Queen-Empress v. Jadub Das (I L R 27 Cal. 295), a common practice exists among the police officers not to prepare a separate record of the statements of accused peons during the course of an investigation. Hence their statements were not recorded under section 161, Cr. P. C. Similarly, Abdul Hayee Niazi, was initially himself investigating the case, and therefore, his statement under section 161, Cr. P. C. was also not recorded. However, the substance of the interrogation of these witnesses was rightly incorporated in the case diaries and copies thereof need not have been supplied consistent with the rule laid down in Queen v. Mannu.

 

280. I have no doubt that the copies of the statements were not supplied under the bona fide belief that it was not necessary to do so on the assumption that they were not statements recorded under section 161, Cr. P. C., but notes recorded under section 172, Cr. P. C. Be that as it may, on examining the case diaries we find that the statements of Ghulam Hussain anti Masood Mahmood, recorded on 2 T-7-1974 and 23-8-1974 respectively, though incorporated in the diary, are in essence and substance statements falling under section 161(3), Cr. P. C., as they contain a detailed narrative of the events touching the present murder. After the above two persons were granted pardon and made witnesses in the case, the statements made by them ought to have been supplied to the accused under section 265-C, Cr. P. C.

 

281. Similarly, although the substance of the examination of Abdul Hayee Niazi P. W. incorporated in the case diaries appears to be a condensed note of his statement and could conceivably be regarded as a statement falling under section 172, Cr. P. C. its close perusal reveals that reference has been made therein to some important acts done by him. This statement too, on the test laid down by us, must accordingly be construed as a statement falling under section 161, and not merely a record of the circumstances ascertained through investigation so as to fall within the scope of section 172, Cr. P. C.

 

282. I may observe that consistently with the changed law making it obligatory for the statements of all witnesses recorded under section 161, Cr. P. C. to be supplied to the accused seven days before the commencement of the trial, it is the duty of the prosecution counsel and the trial Court to see that all such copies are indeed supplied to the accused. They must ensure compliance with this requirement not only in relation to the statements recorded separately under section 161, Cr. P. C., but also a regards statements recorded in the police diaries, which in essence and spirit can be construed to be statements under section 161, Cr. P. C. This is an important right conferred by the law on the accused and must not be defeated by any colourable device.

 

283. Having reached the conclusion that the statements in question must be construed as being statements under section 161 of the Criminal Procedure Code, the question now is what course of action should be adopted. As already stated, the learned Special Public Prosecutor contended that, in the circumstances of this case, no prejudice had been caused to the accused on account of this omission, and therefore, this irregularity could safely be ignored as observed by this Court in Faiz Ahmad’s case. However, Mr. Yahya Bakhtiar submitted that the evidence of these three witnesses should be excluded altogether from consideration as the accused had been seriously prejudiced in not being able to question these witnesses in respect of several omissions and contradictions, etc.

 

284. I consider that the situation that has arisen in this case is in many ways similar to that which arose in Faiz Ahmad’s case and therefore, the precedent case can usefully be followed. As, however, some observations occurring therein are susceptible of different interpretations, we consider that in practice the following procedure should be followed in such cases;

 

(a) Copies of the statement under section 161, Cr. P. C. ref the witness, which has not been supplied to the accused, should be supplied to him and the said statement considered in juxtaposition with any other previous statement of the witness which had been supplied, along with the statements made by him in Court including his cross-examination, to ascertain whether any prejudice has in fact been caused to the accused. If after such comparison it appear that no prejudice has been caused the irregularity in not supplying the copies of the statement in question to the accused, as required under the law, would stand cured under section 537, Cr. P. C. and no further action shall be called for.

 

(b) If on making the comparison, referred to above, it transpires that the non-supply of the copies has resulted in prejudice then any of the following courses may be followed, depending on the facts of each case ;

 

(i) the statement of the witness at the trial can be excluded ; or

 

(ii) the witness recalled and allowed to be cross-examined on the basis of the statement supplied; or

 

(iii) a re-trial ordered.

 

285. In the  light of the above principles the position in the instant case may now be examined.

 

286. So far as Masood Mahmood is concerned, it may be pointed out that although his statement under section 161, Cr. P. C. was not supplied, the accused were supplied copies of the statement made by him under section 164, Cr. P. C. record an 24th August 1974, as well as a copy of his statement recorded under section 337, Cr. P. C. after he was tendered pardon (which maybe described as approver’s statement). With reference to his statement :under’ section 161, Cr. P. C. now supplied, seven alleged contradictions between his statement under section 161, Cr. P. C. and his previous two statements have been pointed out. Besides the aforesaid alleged contradictions certain omissions allegedly amounting to contradictions are also said to exist. It is also submitted that he made five improvements in his statement under section 161, Cr. P. C. over his statement under section 164, Cr. P. C. and his approver’s statement.

 

287. I have carefully gone through all the alleged contradictions, omissions and improvements and am satisfied that this witness was w thoroughly cross-examined on all aspects of the matter and no prejudice has been caused to the appellant by the failure to supply a copy of his statement made on 23-8-1977 under section 161, Cr. P. C.

 

288. So far as Ghulam Hussain (P. W. 31) is concerned his statement under section 161, Cr. P. C. was recorded on 27-7-1977, copy whereof was not supplied to the accused. However, he confessed his guilt and made a confession on 11-8-1977. Thereafter, he submitted an application for being made an approver which was granted and his approver’s statement was recorded on 21-8-1977. In the written note presented to us by Mr. Yahya Bakhtiar on the question of the use that could have been made at the trial of the statements under section 161, Cr. P. C. of the two approvers and Abdul Hayee Niazi, nineteen alleged contradictions between his statement under section 161, Cr. P. C. (now supplied) and his two other previous statements have been pointed out. Although most of the instances which are described as major contradictions are not really so, some contradictions do, indeed exist between then, for instance the manner in which the incident at Islamabad occurred is different from that described in his other two statements. In the statement under section 161, Cr. P. C. he does not refer to any telephonic talk with Ahmad Raza Kasuri to the effect he wanted an appointment on the pretext that he was an employee of the Cantonment Board and needed his assistance for redress of his grievance and on getting a favourable answer went to Islamabad in order to kill him. Herein, he merely states that he found Ahmad Raza Kasuri in his car one day by chance talking to a person. Again in his statement under section 161, Cr. P, C. he stated that he remained in Lahore for a month or a month and a half during which period he did nothing. He was accordingly reprimanded by Mian Abbas, and the attack was launched a few days thereafter ; whereas, in his other previous statement he says that he went to Lahore in the beginning of November where the stay could not have been for more than a week or ten days. Again, according to his statement under section 161, Cr. P. C., only two bursts ware fired in the Lahore incident while according to the other two previous statements there were three bursts. Furthermore, according to his statement under section 161, Cr. P. C. Ghulam Mustafa told him that he had taken possession of some empties from the spot. This has not been mentioned by him in his other previous statements and that this omission was very significant. In view of these discrepancies we were inclined to recall this witness and allow him to be cross-examined on the basis of the statement under section 161, Cr. P. C. supplied subsequently, but decided not to do so as we found that a considerable time had elapsed since this witness was examined, and to summon him at this stage would be to open the door to perjury. We further observed that this witness had already been thoroughly cross-examined at the trial, and having examined his previous statement and the statement made by him in the Court, including the cross-examination to which he was subjected, we are of the opinion that the matters mentioned by Mr. Yahya Bakhtiar have been touched upon in one form or the other in the cross-examination. Consequently, taking all the circumstances into consideration we feel That no useful purpose would be served by recalling the witness at this stage.

 

289. As far as Abdul Hayee Niazi (P. W. 34) is concerned, it was contended by Mr. Yahya Bakhtiar that his statement under section 161, Cr. P. C. alleged to have been recorded in the case diary on 5-8-1977 is an interpolation and fabrication, because it sums up the prosecution case as concocted later, in that this statement laid the foundation of the substitution theory of the empties. He pointed out that this theory was not reflected in the interim challan dated 11-9-1977, but found mention in the final challan on the basis of the statement of the A. S. I. Abdul Ikram. We gathered from the oral submissions of Mr. Yahya Bakhtiar that the main point on which the defence would like to cross-examine this witness is with regard to the theory of substitution of empties, set up in his statement under section 161, Cr. P. C. However, Mr. Butalvi the learned Public Prosecutor has not relied upon this theory but has relied upon the totality of the evidence in order to establish the unreliability of the empties and the high probability that they have been substituted. In these circumstances, it is not necessary to recall Abdul Hayee Niazi (P. W. 34) as the appellant has not suffered any prejudice by the failure to supply the copy of the statement made to the Police under section 161, Cr. P. C.

 

290. We may now turn to the contention that the High Court failed to apply the correct legal procedure in the matter of permitting the defence to cross-examine important prosecution witnesses as to significant omissions from their previous statements, as it erroneously took the view that omissions or lapses of memory did not amount to contradiction within the meaning of section 145 of the Evidence Act, thus causing great prejudice to the appellant by denying him the opportunity to show that the witnesses were not reliable.

 

291. The High Court has observed on this question that it is true that sometime an omission may have the force of an inconsistent or contradictory statement and may be used for the purpose of impeaching the credit of the witness but such cases are rare. A witness may omit to furnish details in his previous statement or the previous statement may be absolutely devoid of details. The omissions of details do not amount to contradiction. They may have the force of contradiction only if the witness omits to refer to anything in the previous statement which he must have mentioned in the circumstances of a particular case. In this connection the case of Ponnurami v. Emperor (A I R 1933 Mad. 372(2)), was considered wherein it was observed that an omission in a statement may sometimes amount to a contradiction e. g. when to the police three persons are stated to have been criminals and later at the trial, four are mentioned. According to the impugned judgment, this statement of law was based upon the principle that in order to amount to an inconsistency, the omission should be of such material fact which the witness would not have omitted to state. Reference was also made to the case of Queen-Empress v. Naziruddin (I L R 16 All. 207), where it was pointed out that the statements recorded by the police officers are in most haphazard manner, only such parts are recorded which seem in the opinion of the Investigation Officer to be material, and there is no guarantee that they do not contain much more or much less than what the witnesses had said, and also to Deo Lal Mohton v. Emperor (A I R 1933 Pat. 440), wherein it was observed that such statements are very notoriously condensed and the omission of some detail in the note of the statement is not always a sure indication that such detail was absent from the statement.

 

292. The learned Judges then went on to observe that the witness himself may not consider a fact as material, and that fact may be brought on the record on specific questions by the prosecution. The omission of such fact cannot be considered to verge on inconsistency. Applying this principle to the omissions pointed out to them, the Court came to the conclusion that the omissions put to the witnesses in the present case did not amount to contradictions and were not sufficient to discredit them.

 

293. Mr. Yahya Bakhtiar contended that although the High Court laid down a substantially correct rule to the effect that “in order to amount to inconsistency the omission must be of such material fact which the witness would not have omitted to state”, a rule which has the support of the preponderance of judicial authorities both in India and Pakistan (See Hazara Singh v. Emperor (A I R 1928 Lah. 257), Ram Bali v. State (A I R 1962 All. 289), Madhabananda v. Rabindranath (A I R 1954 Orissa 31), Abdul Hashem v. The State (1969 P Cr. L J 491), Ekabbar Ali v. The State (1971 P Cr. L J 275), and Monir on page 152 of the Law of Evidence, yet when the time came for the actual application of this rule to test the evidence of the principal witnesses produced by the prosecution, the learned Judges fell into a  serious error by stating, in paragraph No. 378 of the judgment, that;----

 

“These authorities are distinguishable since the dictum laid down therein would apply only to a case where a witness has specifically made a statement in his earlier statement which is said to be contradictory to the statement made during his examination at the trill. It cannot be applied to a case where the statement made at the trial was not made at the earlier stages and is a mere omission or distinguished from a contradiction.”

 

The learned counsel for the appellant submitted that it was the duty of the High Court to examine the effect of the omissions occurring in the earlier statements of the prosecution witnesses so as to determine their credibility.

 

294. Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, submitted that the law, as contained in section 145 of the Evidence Act, contemplates a real inconsistency or contradiction between the two assertions of a witness, but if a witness did not say anything in the previous statement about a fact in issue or a relevant fact, but later deposed to the same at the trial, then it would be a mere omission and not a contradiction. Nevertheless he conceded that in some cases an omission in a previous statement may amount to a contradiction where what is actually stated by the witness in Court was not reconcilable with its omission from the previous statement. In support of these submissions he referred us to Balmokand v. Emperor (A I R 1915 Lah. 16), Badri Chaudhry v. King-Emperor (A I R 1926 Pat. 20), In re; Guruva Vannan (A I R 1944 Mad. 385) and Abul Monsur Ahmed v. The State (PLD1961Dacca753). Mr. Batalvi also relied on the majority judgment of the Indian Supreme Court in the case of Tahsildar Singh and another v. State of U. P. (AIR1959SC1012).

 

295. I find that in the last case relied upon by Mr. Batalvi, the main question before the Court was the scope of section 162 of the Code of Criminal Procedure read with section 145 of the Evidence Act, and there was a difference of opinion between the learned Judges on the question whether a statement made admissible under section 162 of the Criminal Procedure Code could be used for contradicting as well as for cross-examining the witness under section 145 of the Evidence Act, or whether its use was only restricted to contradicting the witness. It seems to me, with respect, that the very elaborate and scholarly discussion in this case is not of direct assistance in resolving the controversy raised before us. I am of the view that the law in this regard has been correctly summed up by the learned author on page 1523 of Monir’s Law of Evidence, namely, that.

 

“A failure to assert a fact, when it would Rave been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. But it is wrong to suppose that all omissions are contradictions. It must be left to the Court in each particular case to decide whether the omission in question amounts to a contradiction or not:-------An omission in order to amount to a contradiction must be material. Thus where a prosecution witness deposes in Court that the accused gave a blow on the head or implicates the accused in his deposition before the Court but did not mention such fact before the police, the omission would amount to contradiction.

 

As a general principle the inconsistency is to be determined not by taking words or phrases alone, but by the whole expression or effect of what has been said or done.”

 

296. I consider that the question of the effect of the alleged omissions and contradictions pointed out by the defence in relation to the evidence of the main prosecution witnesses produced in this case ought to be examined in the light of these principles and observations, which have been generally adopted by the Courts in Pakistan.

 

Question of admissibility of Log Book of the Jeep involved in the crime under section 35 of the Evidence Act.

 

297. It was submitted by Mr. Yahya Bakhtiar that the learned Judges in the High Court were in error in holding that each individual entry in the Log Book Exh. P. W. 19/1-D of the jeep driven by Muhammad Amier (P. W. 19) had to be proved, in case the defence wanted to rely thereon for the purpose of showing that these entries contradicted the assertions made by approver Ghulam Hussain (P. W. 31) or by accused Ghulam Mustafa in regard to the use of the said jeep on certain dates in the month of November preceding the incident, and also on the date of the incident itself. He contended that the illiteracy of the driver of the jeep was irrelevant in this connection, as the entries in the Log Book were admissible in evidence under section 35 of the Evidence Act, once it had been shown that the Log Book was being maintained by the driver of the jeep in the discharge of his official duty. He added that under illustration (e) to section 114 of the Evidence Act there was a presumption that judicial and official acts had been regularly performed. In support of these submissions Mr. Yahya Bakhtiar referred us to Tamiz-ud-Din Sarkar v. Taju and others (A I R 1919 Cal. 721), Mian Ghulam Rasul Khan v. The Secretary of State for India (A I R 1925 P C 170) and ‘The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar (P L D 1966 S C 725).

 

298. On behalf of the State, Mr. Iiaz Hussain Batalvi submitted that section 35 of the Evidence Act only declared the relevancy of entries appearing in official books or registers etc., but it did not dispense with their proof, and the entries in the Log Book in question could be read in evidence only if the Log Book itself satisfied the requirements contained in section 35 of the Act. He submitted that the driver of the jeep Muhammad Amir was an illiterate person and was not able to decipher any of the entries appearing in the Log Book ; on the contrary he had informed the Court that the accused Ghulam Mustafa did not make the entries regularly or correctly, and that very often he made the entries even when the journeys had actually been performed by Ghulam Hussain approver; and that not infrequently fake number plates were used on the jeep. The learned Special Public Prosecutor contended that in these circumstances the Log Book in question did not qualify at all in terms of section 35 of the Evidence Act. In support of his submissions he placed reliance on Mohammad Jajar and others v. Emperor (A I R 1919 Oudh 75), a Thakar Singh v. Ghanaya Singh (A I R 1926 Lab. 452), Mahtab Din v. Kusar Singh and others (A I R 192? Lah. 640), Ghulam Muhammad Khan and others v. Sumundar Khan sand others (A I R 1936 Lab. 37), BiYeswar Misra v. The King (A I R 1949 Orissa 22), Saniar Dosadh v. Juggul Kishore Singh (I L R 23 Cal. 367) and Messrs Bengal Friends & Co., Dacca v. Messrs Gour Benode Saba & Co., Calcutta (P L D 1969 S C 477).

 

299. Section 35 of the Evidence Act contemplates that;

 

“An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.”

 

300. As observed by their Lordships of the Privy Council in the case of Ghulam Fasul Khan:

 

“Statements in public documents are receiveable to prove the facts stated on the general grounds that they were made by the authorised agents of the Public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. In many cases, indeed, in nearly all cases, after a. lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence.”

 

301. In the case of Tamizuddin Sarkar, referred to by Mr. Yabya Bakhtiar, it was held that the register of deaths kept at a Thana was a public document within the meaning of section 74 of the Evidence Act, and was admissible under section 35 thereof as it was a register kept by police officers under a rule made by the local Government and to be found in the Bengal Police Manual. It was added that it was immaterial as to which police officer had made the entries in the register, as the rule in question cast the duty upon some police officer to be appointed for the performance of that duty by the officer in charge of the Thana. In other words, the learned Judges took the view that the entries in the register had been made by a duly authorised police officer appointed for the purpose by the officer in charge of the police station concerned. However, in Muhammad Jafar and others v. Emperor, it was held that under section 35 of the Evidence Act it is not enough to prove that the Chaukidar’s register is an official book, but it is also necessary to prove that any entry relied on in it was either made by a public servant in the discharge of his official duty or made by some other person in performance of a duty specially enjoined by the law of the country. The same opinion was expressed in different words in Sheu Balak and another v. Gaya Prasad cued others (A I R 1922 All. 510), when it was observed that an entry in a register of births and deaths by a village Chaukidar was not. Admissible in evidence under section 35 after the death of the Chaukidar when it had not been shown that the entry was made by him.

 

302. A somewhat similar view was adopted in Sanatan Senapati v. Emperor (A I R 1945 Pat. 489), when it was held that in the absence of reliable evidence as to who made the entry as to the death of a particular person in the register kept by a Chaukidar and in what circumstances, it could not be said that the conditions laid down in section 35 had been fulfilled. The learned Judges of the Division Bench emphasised the fact that it was not enough to prove that the Chaukidar’s register was an official book, but it was also necessary to prove that the entry relied on was either made by a public servant in the discharge of his official duty, or made by some other person in performance of a duty specifically enjoined by the law of the country; and, accordingly, for the application of section 35, Evidence Act, one must know who has made the entry, and in what circumstances.

 

303. The requirements of section 35 of the Evidence Act were also brought out in State Government, Madhya Pradesh v. Kamruddin Imamuddin (A I R1956 Nag. 74), in relation to the admissibility of entries appearing in births and deaths register. It was stated that while such a register was no doubt a document within the meaning of this section, yet it did not mean that each and every entry made in that register was admissible in evidence; only such entries as were made therein by persons in the discharge of their official duty were admissible. In the case of the Chairman, East Pakistan Railway Board, Chittagong, cited at the Bar by Mr. Yabya Bakhtiar, the Court was dealing with an entry in a service book made by a public servant in the discharge of his official duty, and it was held that such an entry clearly fell within the ambit of section 35 of the Evidence Act read with illustration (e) to section 114 thereof.

 

304. It is not necessary to refer at any length to the observations appearing in the other cases cited by Mr. Batalvi, except to say that they draw pointed attention to the requirements as spelt out in section 35 of the Evidence Act. In the case of Messrs Bengal Friends & Co, this Court has pointed out that there is a difference between the relevancy of a matter and its proof in accordance with the provisions of the Evidence Act.

 

305. It sill be seen, therefore, that in order to render a document admissible under section 35 of the Evidence Act three conditions must be satisfied:

 

(a) The entry that is relied upon must be one in any public or other official book, register or record;

 

(b) it must be an entry stating the facts in issue or a relevant fact; and

 

(c) it must be made by a public servant in the discharge of his official duty, or any other person in performance of a duty specially enjoined by the law.

 

The section imports the idea that the entry will be of a permanent nature, and the person making the entry should be such as is invested with authority to make the same.

 

306. Applying these principles to the Log Book in question, it appear that it has to be treated as a book or register maintained by the driver of the Government jeep in the discharge of his official duty, although no specific rule or departmental order was brought on the record in this behalf. It seems to me that we can take judicial notice of the fact that for every Government vehicle a Log book is generally maintained to show the journeys performed by it, and the purpose for which they are undertaken. The question, however, is whether this particular Log Book has, indeed, been regularly maintained by the official concerned, namely, the driver of the jeep so as to fulfil the other conditions mentioned in the section. If the Log Book was not being written up by the driver owing to his illiteracy, then it must be shown that the entries were being regularly made by some other person officially authorised in this behalf.

 

307. It appears from the evidence of driver Muhammad Amir (P. W. 19) that as he was illiterate, the entries in the Log Book were being made by various persons who used the jeep from time to time, and on certain occasions they were made by the Motor Transport Officer. A glance a the Log Book shows that at least one other driver by the name of Muhammad Ashraf also occasionally drove this jeep, but he was no examined at the trial. In other words, the evidence of the driver, who was in charge of the jeep and in whose custody the Log Book was ostensibly kept, shows that all the entries were not being uniformly made by a public servant whose duty it was to make those entries, as the Motor Transport Officer could not have certified the journeys made by other persons using the jeep. In these circumstances it has to be held that an essential ingredient of section 35 of the Evidence Act, namely, that the entries must be shown to have been made by a public servant in the discharge of his official duty, is not satisfied in this case. Further, in the state of affairs disclosed by driver Muhammad Amir, the presumption mentioned in illustration (e) to section 114 of the Evidence Act regarding the regularity of judicial and official acts can hardly be invoked in respect of this particular Log Book.

 

308. On this view of the matter the High Court appears to me to be right in holding that the individual entries sought to be relied upon by the defence had to be proved, and were not covered by the general provision contained in section 35 of the Evidence Act. As the defence did not take any steps to have the relevant entries proved, it is not entitled to refer to them for any purpose.

 

Effect of Non production of Certain Witnesses by the Prosecution.

 

309. It was next contended By Mr. Yahya Bakhtiar that the defence was seriously prejudiced by the failure of the prosecution to examine certain material witnesses, and it was, accordingly, necessary that these witnesses should now be called in the appellate Court as Court-witnesses, or an adverse inference be drawn against the prosecution. He particularly mentioned the following witnesses in this connection;

 

(i) Mr. Hanif Ramay who was the Chief Minister of the Punjab on the date of the incident, and had promptly appointed an Inquiry Tribunal, comprising Mr. Justice Shafi-ur-Rehman of the Lahore High Court, to enquire into the incident; particularly because he was given up by the prosecution on an allegation to the effect that he had been won over;

 

(ii) two witnesses of the recovery memorandum relating to the crime empties, namely, Abdullah and Abdul Ghaffar;

 

(iii) Rao Abdul Rashid, then Inspector-General of Police, Punjab, who had filed an affidavit in this Court to the effect that there was no interference by or at the instance of the then Prime Minister in the investigation of this case;

 

(iv) Mr. Malhi, Director, Federal Security Force, Lahore, who was supposed to have been contacted by D. I: G. Abdul Wakil Khan (P. W. 14) when he had found some personnel of the Federal Security Force roaming at night in Lahore on a jeep without any number plate;

 

(v) two constables of the Federal Security Force, namely, Liaquat and Zaheer, who had earlier participated in the Islamabad incident and had also been sent to Lahore in advance to prepare for the present incident resulting in the death of Nawab Muhammad Ahmed Khan;

 

(vi) Ch. Nazeer Ahmed, Assistant Director of the Federal Security Force, who had taunted approver Ghulam Hussain on his failure to kill Ahmad Raza Kasuri during the firing incident at Islamabad in August 1974;

 

(vii) Ch. Muhammad Abdullah, Deputy Director of the Federal Security Force, who was allegedly deputed by accused Muhammad Abbas to persuade approver Ghulam Hussain to undertake this mission;

 

(viii) Ballistics Expert Major Fayyaz Haider, who had prepared reports Exh. P. W. 32/1 and Exh. P. W. 32/2 with regard to the calibre and nature of the crime empties and the bullet head recovered from the skull of the deceased, and also report Exh. P. W. 32/2 relating to the crime empties of the Islamabad incident;

 

(ix) Mian Khan, driver of the Federal Security Force’s jeep used for the Islamabad incident;

 

(x) Mulazim Hussain of the Federal Security Force who had actually fired at Ahmad Raza Kasuri during the Islamabad incident;

 

(xii) Allah Bakhsh, Head Constable of the Federal Security Force who was also concerned in the Islamabad incident;

 

(xii) Head Constable Muhammad Yousuf of Battalion No. 3, who was cited in the calendar of witnesses, and was incharge of the Federal Security Force Armoury at Lahore, and had actually supplied ammunition to accused Ghulam Mustafa under the instructions of Amir Badahah (P. W. 20); and

 

(xiii) Col. Wazir Ahmad Khan, Commandant of the Havelian Central Ammunition Depot, who had signed reports Exh. P. W. 38/1, Exh. P. W. 38/2, Exh. P. W. 38/3 and Exh. P. W. 39/2 as regards the description of the ammunition supplied to the Federal Security Force Units.

 

310. The learned counsel contended that it was the duty of the prosecution to produce all the available evidence, or in the alternative to make these witnesses available for cross-examination by the defence, even if the prosecution did not intend to examine them for any reason. He submitted that Mr. Hanif R array had at any rate publicly denied that he had been won over by appellant Zulfiqar Ali Bhutto, and this public denial falsified the statement made by the Special Public Prosecutor in the trial Court in this behalf. In support of his submissions Mr. Yahya Bakhtiar placed reliance on : Stephen Seneviratne v. The King (AIR 1936PC289), Adel Muhammad El Dabbah v. Attorney-General of Palestine (AIR 1945PC42), Malak Khan v. Emperor (A I R 1946 P C 16), Nazar Hussain and others v. The Crown (P L D 19511 Lab. 7.22), Khairdi Khan and others v. The Crown (PLD1953FC223), Rafique v. The Crown (PLDF 1955FC70), Ghulam Rasul v. The State (P L D 1960 Lab. 48). Nazir Jai’ and others v. The State (P L D 1961 Lab. 585) and Shaukat Alt v. The State (1976 P Cr. L 3 214).

 

311. In reply Mr. Ijaz Husain Batalvi, the learned Special Public Prosecutor, submitted that in law there was no obligation on the prosecution to produce all the witnesses cited in the calendar; nor to call any other witnesses whom the accused may consider to be necessary, as it was in the discretion of the Public Prosecutor to determine under section 265-F of the Criminal Procedure Code, what evidence should be produced before the Court to prove his case. . He contended that no adverse inference was normally to be drawn against the prosecution on account of its omission to summon any witness, as it was open to the accused to examine such a witness in defence; and that an adverse inference could be drawn only if it was shown that the prosecution had deliberately dropped a material witness for some improper motive, so that prejudice was caused to the accused in his defence by such omission. He further submitted that it was also an erroneous impression that a witness not called by the prosecution, but mentioned in the calendar, could just be tendered for cross-examination by the defence, as there could be no cross-examination unless there was examination-in-chief in terms of sections 137 and 138 of the Evidence Act. In support of these submissions he also placed reliance on some of the cases mentioned by Mr. Yahya Bakhtiar, and in addition drew our attention to: Mahant Narain Das v. The Crown (I L R 3 Lab. 144), Abdul Latif v. Emperor (A I R 1941 Cal. 533), Emperor v. Kasamalli Mirzalli (A I R 1942 Boni. 71), Allah Yar v. Crown (P L D 1952 F C 148), Kesar Singh and another v. The State (A I R 1954 Pb. 286), Habib Muhammad v. State of Hyderabad (AIR1954SC51) Bakhshish Singh v. The State of Punjab (PLD 195’SC(Ind.163), The State v. Mushtaq Ahmad (P L D 1973 S C 418) and Nur Begum v. Muhammad Husain and another (1974 S C M R 215), besides certain passages appearing on page 1095 of Monir’s Law of Evidence.

 

312. The cases relied upon by the learned counsel for the parties may briefly be noticed with advantage.

 

313. It will be instructive, at the very outset, to refer to the three Privy Council cases relied upon by both the parties in support of their respective contentions. In the case of Stephen Senevtratne, which came before their Lordships of the Privy Council from Ceylon, it was observed that;---

 

“It is a wrong idea that the prosecution must all witnesses  irrespective of considerations of number and reliability or that it should discharge the functions both of prosecution and defence, If it does so, confusion is very apt to result, more specially so when the prosecution calls witnesses and proceeds automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution,”

 

While making these observations, their Lordships also stated that they did not desire to lay down any rules to fetter discretion in a matter such as this which was so dependent on the particular circumstances of each case, nor did they desire to discourage the utmost candour and fairness on the part of those conducting prosecution.

 

314. While considering the same question again in the case of Adel Muhammad El Dabbah, which had arisen from Palestine, the Judicial Committee stated that:--

 

“The last contention of the appellant is that the accused, had a right to have the witnesses whose names were upon the information, but were not called to give evidence for the prosecution, tendered by the Crown for cross-examination by the defence, as was asked for by counsel for the defence, at the close of the case for the prosecution. The learned Chief Justice ruled that there was no obligation on the prosecution to call them. The Court of Criminal Appeal held that the strict position in law was that it was not necessary legally for the prosecution to put forward these witnesses, and they could not say that the learned Chief Justice erred in point of law, but they pointed out that, in their opinion, the better practice is that the witnesses should be so tendered at the close of the case for the prosecution so that the defence may cross-examine them if they so wish, and they desired to lay down as a rule of practice that in future this practice of tendering witnesses should be generally followed in all Courts. While their Lordships agree that there was no obligation on the prosecution to tender these witnesses and therefore this contention of the present appellant fails, their Lordships doubt whether the rule of practice as expressed by the Court of Criminal Appeal sufficiently recognises that the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless perhaps, it can be shown that the prosecutor has been influenced by some oblique motive; no such suggestion is made in the present case.”

 

315. Relying on this case the Judicial Committee again reiterated in the case of Malak Khan, a case from Lahore, that;

 

“Ultimately it is a matter for the discretion of counsel for the prosecution, and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses.”

 

316. We may now turn to the cases cited from the Indian jurisdiction. In A I R 1942 Born. 71, it was observed that:

 

“The prosecution must always be perfectly fair. It is not the function of the Crown to procure the conviction of an innocent person.

 

But the Crown is not bound to call before the Court a witness who, it believes, is not going to speak the truth. If the Crown informs the accused of the name of the witness and produces him in Court, it can then leave it to the accused to call him or not, as he thinks fit. If the witness is called, Crown can cross-examine him. He should not be tendered for cross-examination. The practice of tendering witnesses for cross-examination leads to confusion and does not induce to the discovery of the truth.”

 

In making this last observation, the learned Judges relied upon an earlier decision of their Court reported in the same volume, namely, A I R 1942 Bom. 37.

 

317. The question was examined at some length by the Indian Supreme Court in the case reported as A I R 1.954 S C 51. The learned Judges, while dealing with the effect of non-production of a material eye-witness, observed that the true rule applicable in India on the question whether it was the duty of the prosecution to produce a material witness had been laid down by the Privy Council in the case of Stephen Seneviratne, already referred to. On the facts of the case before them they came to the conclusion that the witness in question was a material witness and the object of not producing him clearly was to shield him as he might possibly have been a co-accused in the case, and also to shield the other police officers and men who formed the raiding party. In these circumstances their Lordships considered that an adverse inference did arise against the prosecution in terms of clause (g) to section 114 of the Evidence Act, especially when during the trial an application had been made by the accused to summon the witness concerned, which application was erroneously refused by the trial Court without proper application of mind.

 

318. This question was again considered by the Indian Supreme Court in the case of Bakhshish Singh v. The State of Punjab, and, relying upon its own judgment in the case referred to above, as well as the Privy Council cases of Abe Muhammad and Stephen Seneviratne, the Court held that no adverse inference could be drawn against the State under section 114 of the Evidence Act owing to the non-production of a prosecution witness mentioned in the dying declaration to have witnessed the occurrence, as the Public Prosecutor had stated at the trial that he was giving up this witness as having been-won over, and no oblique reason for his non-production was alleged, least of all proved, by the defence. The learned Judges also observed that if produced he would have been no better than a suborned witness, and thus he was not a witness essential to the unfolding of the narrative on which the prosecution was based, and if examined the result would have been confusion, because the prosecution would have automatically proceeded to discredit him by cross-examination.

 

319. The view taken by the Lahore High Court on this question, in the cases cited at the Bar, is more or less in consonance with the dicta of the Privy Council, except that a somewhat different note was struck in the cases of Nazar Hussain and others v. The Crown and Ghulam Rasul v. The State. In the first case it was observed that;----

 

“The course adopted by the Public Prosecutor in giving up a witness on the ground that he had been won- over and thus withholding evidence which was likely to affect the result of the case is to be strongly disapproved. It is no part of the duty of the Public Prosecutor to secure convictions at any cost. On the other hand, he is expected to assist the Courts in coning to correct conclusions by placing all the material evidence before them.”

 

320. And in the case of Ghulam Rasul it was laid down that;----

 

“As a general rule the prosecutor is bound to call all eye-witnesses, who are mentioned in the First Information Report, unless he had reasons to believe that the witness if called would not speak the truth, or is, unnecessary, or is an accomplice himself. The mere statement of the Public Prosecutor not supported by any material upon the record that the witnesses were won over by the accused, would not absolve the prosecution from producing material witnesses mentioned in the First Information Report. If, however, the Public Prosecutor refuses to examine such witnesses, then a duty is cast upon the Court to call those witnesses as Court-witnesses and afford opportunity to both the accused and the prosecution to cross-examine them. Failure to examine such witness or witnesses who were able to give important information in the case, or had some connection with the transaction in question might very well lead to miscarriage of justice which should be avoided at all costs.”

 

It is interesting to observe that while making these observations the learned Judges purported to rely on the dictum of the Privy Council in the case of Stephen Seneviratne, to which I have already referred. A reference to that case shows that their Lordships of the Privy Council had not laid down any such rule: on the contrary they had observed that “it is a wrong idea that the prosecution must call witnesses irrespective of considerations of number and of reliability or that it should discharge the functions both of prosecution and defence”. Of course, they added that “witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution’“. It seems to me that it is difficult to hold that the learned Judges of the High Court had correctly appreciated the observations of the Privy Council on which they had placed reliance, as the Privy Council had not purported to lay down any general rule requiring the prosecution to produce, as a matter of obligation, all witnesses mentioned in the First Information Report irrespective of considerations of number and of reliability:

 

321. However, this view was not adopted by another Division Bench of the same High Court in a case decided in the following year namely, that of Nazir Jat and others. Shabir Ahmad, J. delivering the judgment of the Court, stated that;----

 

“The prosecution is not bound to produce as witnesses all persons who can give evidence regarding the point in issue or a relevant fact, and a case has to be judged on the evidence that is produced in Court. The omission on the part of the prosecution to produce some persons who admittedly bad some knowledge of a fact in issue or a relevant fact, may in certain cases, attract the provisions of law contained in illustration (g) of section l14 of the Evidence Act, 1872 It is, however, not in all cases of withholding of evidence that this presumption is to be drawn by the Court, and discretion is left to the Court to raise the presumption or not.”

 

Having made these observations the learned Judge proceeded to hold that the non-production of some of the neighbours, who had admittedly seen the occurrence, would not adversely affect the prosecution. This view was followed by another Division Bench of the same High Court in the case of Shaukat all v. The State, and no adverse inference was drawn against the prosecution on account of non-production of certain witnesses cited in the calendar.

 

322. This brings as to a consideration of the views of our own Court in this matter. In Allah Yar v. The Crown, special leave to appeal had been granted for the purpose of examining whether the course of justice had not been deflected by the failure of the prosecution to produce two witnesses by the name of Muhammad Nawaz and Saaduilah, the first one being an eye-witness of the main occurrence, and the second of an earlier altercation which apparently provided or explained the motive. At the trial the Public Prosecutor had given up both these witnesses on the ground that they bad been won over. The learned Judges observed that as Saadullah’s evidence related to an incident prior to the murder affecting the relations between the parties, it could not be contended that by failure to examine him at the trial any prejudice was caused or was likely to be caused to the accused persons or to the due course of justice. As to the non-production of Muhammad Nawaz, who had presumably witnessed the main occurrence, the learned Judges, referred with approval to the dicta of the Privy Council in the cases of Stephen Seneviratne and Malik Klan v. Emperor, as well as to the observations of a Full Bench of six Judges of the Allahabad High Court in the case of Queen-Empress v. Durga (I L R 16 All. 84) and the judgment of a Division Borsch of the Lahore High Court in Mahant Narain Das v. The Crown, and concluded that:---

 

“The circumstances already mentioned concerning the witness Muhammad Nawaz combined to raise the strong probability that in the committing Court he had not adhered to the truth, and in any case, his showing in those proceedings furnished reasonable ground for the Crown Prosecutor to believe that he was not a truthful witness. On the principles laid down in the authorities cited above, the Crown Prosecutor exercised a right discretion in declining to call Muhammad Nawaz as a witness for the Crown. All possibility of prejudice to the accused or to the due course of justice is excluded by the fact that, having been cited in the prosecution calendar, Muhammad Nawaz was available at the trial to be called and examined by the defence, if they thought it necessary.”

 

323. In the next case of Khairdi Khan and others, the same rule was reaffirmed by observing that;

 

“It is hardly necessary to stress the great importance which attaches to the non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non-production is established. It is true that the prosecutor is not bound to produce before the Court a witness who is not expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite-party should wish to examine him.”

 

324. The learned Judges also referred with approval to the Privy Council case from Palestine to which I have already referred earlier. They proceeded to draw a presumption against the prosecution under section 114, illustration (g) of the Evidence Act on the ground that the female witness in question was a material eye-witness of the incident, and the reasons given for dropping her were not at all satisfactory.

 

325. In the case Rafique v. The Crown, relied upon by Mr. Yahya Bakhtiar, it was not a question of not producing a material prosecution witness; but on the contrary the witness in question had been produced at the trial by the prosecution, but the learned Judges of the Chief Court of Sind had criticised the Prosecutor in rather strong terms for doing so on the ground that the evidence of this witness had disclosed mitigating circumstances in favour of the accused, and it appeared to the learned Judges that this duty should have been discharged by the accused under section 105 of the Evidence Act. It was in the context of these circumstances that the Federal Court observed that:

 

“It is the duty of the Crown Counsel to bring all the relevant facts to the notice of the Court, even though that might tend to mitigate the offence; and this duty cannot be shirked by the Crown Counsel on the ground that the burden of proving the exceptions rests on the accused.”

 

The learned Chief Justice pointedly referred to his judgment in this behalf in Safdar Ali’s ease. It seems to me that this particular case clearly proceeds on its own peculiar facts, and does not deal with the question we are considering here on the basis of considerations of principles and practice as have been brought out in the other cases discussed above.

 

326. In the next case brought to our notice, namely, The State v. Mushtaq Ahmad, in dealing with the question of the effect of non-production of certain witnesses by the prosecution, out of those who had been cited in the F. I. R., the learned Judges reiterated the view expressed by the Privy Council in Malik Khan v. The Emperor and the earlier judgment of the Federal Court in the case of Allah Yar v. The Crown. It was added that:---

 

“However that may be, in our opinion; nothing turns on the failure to examine the above three witnesses if on the evidence actually produced in the case the offence with which the accused was charged is brought home to him beyond any reasonable doubt.”

 

Before concluding the judgment, their Lordships also pointed out, with reference to the decision in Ghulam Safdar v. The Crown, that it is no part of the duty of the prosecution to prove all incidental matters that might be mentioned by a witness in his deposition.

 

327. In the last case, namely, Nur Begum v. Muhammad Hussain and another, the view expressed earlier as to the proof of all incidental matters by the prosecution was rearmed.

 

CORRECT LEGAL POSITION REGARDING PRODUCTION OF WITNESSES BY THE PROSECUTION

 

328. From this somewhat lengthy review of the cases cited at- the Bar it appears, if I may say so with respect, that the correct position is the one as consistently enunciated by their Lordships of the Privy Council in three successive cases coming before them from Ceylon, Palestine and Lahore; and adopted by this Court as well as by the Indian Supreme Court, namely, that the prosecution is not bound to call all the witnesses cited in the challan or the calendar of witnesses, irrespective of considerations of number and of reliability; nor is it obliged to call any witness not so  cited, but considered to be necessary by the accused; as ultimately it is a matter for the discretion of the counsel for the prosecution. At the same time it is the duty of the prosecution to call all those witnesses who are essential to the unfolding of the narrative, on which the prosecution is based, whether their testimony is for or against the case for the prosecution; but it is not its duty to lead evidence to prove even incidental matters which do not concern the essential fundamentals of its case. It is not in every case that an adverse inference must be drawn against the prosecution in terms of illustration (g) to section 114 of the Evidence Act owing to non production of certain witnesses, whether mentioned in the indictment or not. It will depend upon the facts and circumstances of cacti case, and an adverse inference can be drawn only if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported on the record. Here again, a caveat must be entered to the effect that it does not mean that the Court will embark upon an inquiry for the purpose of determining whether a witness has, indeed, been won over or that he was, in fact, unnecessary. Ordinarily a statement made in this behalf by the counsel for the prosecution should suffice, but the defence may show that the statement is not correct, or is otherwise not acceptable. The case must, however, be judged on the evidence as a whole, and the Court must arrive at its conclusions accordingly, taking into consideration the persuasiveness of the testimony given at the trial in the light of such criticism as may be levelled at the absence of possible witnesses.

 

329. The prosecution must, of course, be prepared to make available for purposes of examination by the defence such of the given up witnesses as the accused may specify in this behalf. I am in respectful agreement with the view expressed in Abdul Latif v. Emperor, Sadeppa Gireppa Mutgi and others v. Emperor (A I R 1942 Born. 37), Emperor v. Kasamalli Mirzalli and Kesar Singh and another v. The State to the effect that a witness cannot be tendered for cross-examination without his being examined-in-chief. The law in regard to examination of witnesses is contained in sections .137 and 138 of the A Evidence Act. There is no provision in that Act for permitting a witness to be tendered for cross-examination without his being examined-in-chief, and this practice is opposed to section 138 of the Act. The correct procedure, therefore, appears to be that if the prosecution gives up any witness either as being unnecessary or as having been won over, then he should be made available at the trial for examination as a defence witness, should the accused so desire. In that case the prosecution will clearly have the right to cross-examine him.

 

APPLICATION OF THESE PRINCIPLES TO THE PRESENT CASE

 

330. The factual position may now be examined in the light of the conclusions reached above. Out of 15 persons mentioned by Mr. Yahya Bakhtiar, only four were cited in the list of witnesses filed by the prosecution. Mr. Hanif Ramay was given up on the ground that he had been won over. ‘It was contended by Mr. Yahya Bakhtiat that Mr. Ramay had issued a statement denying any such thing, but the learned Special Public Prosecutor maintained his stand during the trial. He stated before us that certain events had happened during the course of the trial, as a result of which the prosecution had reached this conclusion. As I have already stated, it is hardly possible for the trial Court, much less for this Court, to embark upon a factual inquiry into the correct position, and it is enough to take notice of the controversy on this point. It was stated at the Bar by Mr. M. A. Rehman, the learned Advocate-on-Record for the State, that the Public Prosecutor was prepared to face any legal proceedings which Mr. Hanif Ramay might be contemplating against him in this regard. In the circumstances, we are of the view that there is no material for us to reject the statement made at the trial by the Public Prosecutor with regard to the position of Mr. Hanif Ramay, and accordingly no adverse inference can be drawn against the prosecution owing to his non-production.

 

331. The two recovery witnesses, Abdullah and Abdul Ghaffar were apparently given up as the prosecution came to the conclusion that it could not rely on the contents of the recovery memo. supposed to have been prepared by Investigating Officer Abdul Hayee Niazi at the spot, as its case was that the empties were not sealed at the spot. It would have been, therefore, futile for the prosecution to produce these witnesses and then proceed to denounce them for the purpose of showing that the recovery memo. could not be relied upon as to the correctness of its contents.

 

332. Head Constable Muhammad Yousuf of the Federal Security Force was given up as unnecessary on the ground that the Investigating Officer Abdul Khaliq (P. W. 41) had found that the Roznamcha maintained by this witness contained interpolations and over-writings and the possibility of its having been tampered with could not be excluded. The prosecution, therefore, chose to rely upon the evidence of Muhammad Yousuf’s superior, namely, Assistant Director Amir Badshah Khan (P. W. 20). This was clearly a matter within the discretion of the prosecution and no exception could be taken to the course adopted by it.

 

333. It may be stated that there is no averment by the defence that any of the accused expressed a desire to examine all or any of these four witnesses who had been cited in the challan but given up at the trial by the prosecution. If such a request had been made, it was the duty of the prosecution to make them available for examination by the defence.

 

334. The remaining 11 witnesses mentioned by Mr. Yahya Bakhtiar were not included in the calendar of witnesses, and no duty was cast upon the prosecution to produce all or any of them simply for the reason that the defence considered them to be necessary, unless it could be shown that their evidence was material for the unfolding of the narration of the case relied upon by the prosecution. This does not appear to be so. The names of the Federal Security Force employees Liaquat, Zaheer, Ch. Nazir Ahmad, Ch. Abdullah, driver Mian Khan, Allah Bakhsh and Mulazim Hussain were disclosed by various accused persons during the course of investigation of this case, and some of them are accused in the case relating to the attack on Ahmad Raza Kasuri in Islamabad on the 24th of August, 1974. There is substance in Mr. Batalvi’s submission that as such the status of these persons was hardly better than that of accomplices and no useful purpose would have been served by producing them as- witnesses in the present case.

 

335. The name of Mr. Irfan Malhi, Director, Federal Security Force at Lahore was only incidentally mentioned by prosecution witness Sardar Abdul Wakil Khan while narrating an incident prior to the date of the present murder during which he had intercepted a jeep belonging to the Federal Security Force which was being driven without a number plate, and Abdul Wakil Kban had contacted Mr. Irfan Malhi in that connection. This was, indeed, an incidental matter and it was not necessary for the prosecution to prove the same by producing Mr. Irfan Malhi.

 

336. As to Rao A. Rashid, it was stated by the learned Special Public Prosecutor that the investigation had revealed that this gentleman was too deeply involved and was not willing to tell the truth. In the peculiar circumstances of this case, which was filed as untraced when Rao A. Rashid was the Inspector-General of Police in the Punjab Province, there is hardly any material for us to hold that the statement made by the Special Public Prosecutor is not acceptable.

 

337. As to Major Fayyaz Haider of the Inspectorate of Armaments, G. H. Q., Rawalpindi, the explanation given by the prosecution is that his report was admissible in evidence under section 510 of the Code of Criminal Procedure without the necessity of big personal appearance before the Court, and that, in any case, on the advice of the Inspectorate of Armaments, two other officers of the organization, namely, Lt: Col. Yawar Hussain and Major Sarfraz Naeem were cited as witnesses in the incomplete challan dated the 11th of September, 1977, and both these gentlemen appeared as P. Ws. 32 and 33 respectively. A reference to the amended section 510 of the Criminal Procedure Code does support the prosecution on the point that the report of the Arms Expert could be admitted in evidence without the examination of the expert himself. However, this point will need to be discussed further at a later stage.

 

338. Lastly, as regards Col. Wazir Ahmad Khan, Officer Incharge of the Central Ammunition Depot at Havelian, from where various lots of ammunition were supplied to the Federal Security Force, Mr. Batalvi stated that his name had been inadvertently omitted from the list of witnesses filed by the prosecution, and on detecting this error an application had been filed by the Special Public Prosecutor before the trial Court seeking permission to produce him as a witness, but this application was rejected. Mr. Batalvi rightly submitted that no adverse inference could be drawn against the prosecution on account of an order made by the High Court.

 

CONCLUSIONS AS TO NON-PRODUCTION OF WITNESSES

 

339. Taking an overall view of the entire situation, I am of the view that nothing turns on the non-production of the 15 witnesses mentioned by Mr. Yahya Bakhtiar at the commencement of his submissions in this behalf. It is to be noted that no request was made in the trial Court for summoning any of these witnesses as defence witnesses, or even as Court witnesses ; and in the application filed in this behalf during the hearing of these appeals the request relates only to two persons, namely, Col. Wazir Ahmad, Ballistics Expert, and Agha Muhammad Safdar, Deputy Superintendent of Police, Islamabad. The last mentioned gentleman is not included in the list of 15 witnesses now under discussion. The prosecution has chosen to be judged without the evidence of these 1.5 witnesses, and it was within its rights in doing so. No compelling reason appears to have b-.en made out on the record for drawing any adverse inference against the prosecution in terms of illustration (g) to section 114 of the Evidence Act, as none of the witnesses in question were essential to the unfolding of the main narrative of the case, and have not been withheld owing to any improper or oblique motive.

 

IMPLICATIONS OF CAMERA PROCEEDINGS

 

340. The learned counsel for appellant Zulfiqar Ali Bhutto next argued that the whole trial stood vitiated for the reason that some parts of the proceedings at the trial were held in camera in violation of the provisions of section 352 of the Criminal Procedure Code, and the established principles of holding criminal trials in the open. Mr. Yahya Bakhtiar contended that it is elementary that justice must not only be done but it should also be seen to be done ; and that in the circumstances there was no warrant at all for holding part of the trial of the appellant in camera, as he has been seriously prejudiced thereby on account of publicity having been given to the evidence led against him, but a similar opportunity having been denied to him when he wanted to present his defence.

 

341. The learned Special Public Prosecutor, in reply, repudiated these contentions, and submitted that it is unfortunate that appellant Zulfikar Ali Bhutto had all along acted on the mistaken notion that he was to be tried by the public and not by the High Court, and for this reason he was more after publicity than for presenting his defence to the criminal charges brought against him. Mr. Batalvi further submitted that, is any case the orders made by the High Court for holding the proceedings in chambers in camera were perfectly legal and justified in accordance with the practice of the Court relate to hearing of miscellaneous applications in motion, and also wholly covered by the proviso to section 352 of the Code of the Criminal Procedure. Finally, he contended that in any case no prejudice whatsoever had in fact been caused to the appellant by the adoption of this mode of trial during certain parts of the proceedings in the High Court.

 

342. The grievance relates to two stages of the proceedings, namely;

 

(a) On 9-1-1978 the trial Bench heard in camera, and dismissed in limine, a miscellaneous application (Cr. Misc. No. 7-M of 1978) filed by appellant Zulfikar Ali Bhutto praying for the transfer of the case for trial to another Bench or Judge, preferably the Sessions Judge, Lahore;

 

(b) the examination of the appellant under section 342, Cr. P. C. held , in camera on 25th and 28th January, 1978, after it had been commenced in the open Court on the 24th of January, 1978.

 

343. Taking up the question of the hearing of the miscellaneous applications in chambers, the relevant facts are that on 18-12-1977 Zulfiqar Ali Bhutto appellant had made the application (Cr. Misc. No. 7-M of 1977) before the trial Bench under section 561, Cr. P. C. with the prayer for transfer of the case for trial by another Bench or Judge, preferably by the Sessions Judge, Lahore. There was no sitting of the Bench on 19-i2-1977 which was the last working day of the Court before the winter vacation commencing on 20-12-1971. On 22-12-1977 the appellant sent in another application from jail requesting that his transfer application might be taken up for disposal during the winter vacation. However, as it was, the two applications were put up in motion before the trial Bench immediately on the reopening of the High Court on 9-1-1978 and were dismissed in limine after having heard the petitioner and his two learned counsel in chambers. Thereafter, on the same day, on 9-1-1978, when the trial of the case was actually resumed in open Court in- the presence of the parties and their learned counsel, Mr. D. M. Awan learned counsel for Zulfikar Ali Bhutto appellant rose and submitted that his client had informed him in writing that he had cancelled the powers-of-attorney of all his counsel. But the Court thereupon appointed two of his learned counsel namely Messrs D. M. Awan and Ehsan Qadir Shah to defend him at State expense and called upon Mr. Ehsan Qadir Shah to resume the cross-examination of P. W. 31 Ghulam Hussain approver. On this Mr. Ehsan Qadir Shah stated that he had no further questions to ask of the witness as he had been so instructed by the accused Zulfiqar Ali Bhutto. He further submitted that the said accused had informed him that he was disassociating from the proceedings. Afterwards Mr. Ehsan Qadir Shah was relieved of his assignment as the State Counsel at his request. On the next day, on 10-1-1 78, Mr. D. M. Awan submitted at the hearing that Zulfiqar Ali Bhutto accused had declined to give him any instructions in the case. Accordingly, the Court at his request also rescinded his appointment as the State Counsel for the accused. In these circumstances Zulfiqar Ali Bhutto accused remained un-represented in the further proceedings of the case.

 

344. Now at this stage, let us have a closer look into the relevant facts on this part of the case. The record shows that in the transfers application (Cr. Misc. No. 7-M of 1978) running into 53, typed pages, scurrilous allegations were levelled almost entirely against the learned Acting Chief Justice, heading the trial Bench. Some of the allegations, if not most of them, were made in repetition of those contained in the previously moved` applications. The order dated 9-41978 passed on this application shows that the learned trial bench had decided to hear the application in motion in camera and dismissed it in limine by a short order announced at the hearing. It was followed by a detailed order covering 33 typed pages containing the reasons for it.

 

345. In the detailed order dated 9-1-1978 passed on the transfer application (Cr. Misc. 7-M of 1978), it is mentioned, that it was decided to be taken up in chambers since not only it is the usual practice of the Court to hear motion cases in chambers but also because “the intention of the, accused in repeating petitions based on allegations of bias appeared only to give publicity to the baseless allegations of a scandalous character and thus undermine the confidence of the public in the Courts of the country”. On appearing before the Bench the appellant expressed his surprise and made a request for the petition to be heard in open Court. This request, according to the learned trial Bench, confirmed their views that the object of the accused petitioner was clearly to give publicity to the highly scandalous, scurrilous and baseless allegations in the petition and the arguments that might be addressed in that connection. Therefore the Bench did not agree to the request of the appellant. In these circumstances the learned trial Bench heard the arguments m chambers on the transfer application in the presence of the appellant and his two learned counsel. It appears that in the course of the arguments by Mr. D. M. Awan, his learned senior counsel, the appellant intervened to make certain submissions of his own despite the fact that it was brought to his notice that he was interfering with the proceedings. After the conclusion of the arguments by his learned counsel the petitioner was also allowed an opportunity to supplement the arguments, on facts as a special case. . However, according to the impugned order, the appellant started apolitical speech in Court. He was asked several times to confine himself to the petition and refrain from making a political speech. Ultimately be took his seat saying that if be was not allowed to say what he liked he would not make his submissions.

 

346. I shall separately deal with the merits of the allegations contained in the transfer application and the order passed thereon, at a suitable place in this judgment. But for the present suffice it to mention here that the appellant had taken exception against the hearing of his application “in chambers” on wholly untenable grounds, and had. thereafter on the same day voluntarily chosen to disassociate himself from the proceedings at his trial held in open.

 

347. According to the Concise Law Dictionary (5th Edn.), by P. C.1 Osborn the term “Chambers” is defined to mean rooms attached to the Courts in which sit the Judges, the masters and registrars for the transaction of legal business which does not require to be done in Court. A Judges” sitting in chambers can exercise the fell jurisdiction vested in the High Courts (Judicature Act, 1925). Similarly in Bouvier’s Law Dictionary, it is stated that the chambers is the private room of the Judge. Any hearing before a Judge which does not take place during a term of Court or while the Judge is sitting in Court, or an order issued under such circumstances, is said to be in chambers. In Mozley’s Law Dictionary (6th Edn.), the term is defined to mean the offices of a Judge in which a large part of the business of the superior Courts is transacted by a Judge or a master. Applications by way of summons, and inquiries incidental to a suit, are made in chambers. ‘ According to Wharton’s Law Lexicon (4th Edn.) chambers are quasi-private rooms, in which the Judges or masters dispose of points of practice and other matters not sufficiently important to be heard and argued , in Court. According to Black’s Law Dictionary “chambers” is the private room or office of a Judge ; any place in which a Judge hears “motions”, signs papers, when he is not holding a Session of Court. Business so transacted is said ‘to be done “in chambers”. In the Oxford English Dictionary the term is defined to mean the room in which a Judge sits to hear cases and transact business not of sufficient importance to be brought into Court.

 

348. In this connection here it may be mentioned that the cases relied upon by the learned counsel for the appellant are not in point inasmuch as they do not directly relate to the matters heard “in chambers”. But in Cora Lillian McPherson v. Oran Lillian McPherson, cited on behalf of the appellant, the Privy Council while emphasising that every Court of Justice is open to every subject and that publicity is the authentic hallmark of judicial procedure, at the same time observed that it need hardly be stated that to this rule; there are certain strictly defined exceptions, and has in particular referred to the applications properly made “in chambers” and infant cases as the two exceptions. In Alliance Perpetual Building society v. Belrum Investment Ltd. and others ((11957) 1 W L R 720) a motion was put up for hearing before Harman, J. in Chancery Division to commit Arthur George Wareham, Editor of the “Daily Mail” for contempt of Court by the publication in that paper of what purported to be an account of proceedings on action pending in Chambers and never yet heard in open Court. In that connection the learned Judge observed;

 

“The gravamen of the charge made is that the article is an account of matters proceeding in chambers. In my judgment, if this charge be true, a contempt of Court has been committed. Interlocutory matters before the master proceed in private ; the public has no right to attend them, nor has anyone, as I conceive, any right to give any account of them while the action is pending and has not been adjourned into Court.

 

It is not easy to find authority for this proposition, but it is assumed in the speech of Lord Loreburn, L. C. in Scott v. Scott, and is, I think, well established.”

 

and in conclusion he recorded the finding in the matter in these words;

 

“I regard it as important that this kind of intrusion on matters pending in chambers should be strongly discouraged and I feel bound to mark the Court’s displeasure by fining the respondent £100.”               

 

349. Although the reported case of the House of Lords in Scott v. Scott (1913 A C 417) is not directly in point, yet the observations by Lord Lorebum on page 445 and Lord Atkinson on page 467 do go to lend support, to the view that the hearing of causes in chambers is normally held in private, as another exception to the general rule.

 

HEARING OF MISCELLANEOUS APPLICATION IN CHAMBERS

 

NOT OPEN TO OBJECTION

 

350. I may pause here to mention that according to section 352, Cr. P. C. the place in which any Criminal Court is held for the purpose of “inquiring into or trying any offence” shall be deemed to be an open Court. Strictly speaking therefore, the Court is open only for the purpose of “inquiring into or trying any offence” and not for any collateral purpose, or while dealing with something which is strictly speaking outside the cause itself. In this category would fall a transfer application which is not germane to the proper trial as such. In this view of the matter also section 353 of the Code did not debar the learned trial Bench from hearing the transfer application in limine “in chambers” and not in Court open to the public. Indeed the Bench in its impugned order has itself specifically observed that it was decided by them to take up the transfer application “in chambers” in accordance with the usual practice of the Court. The objection as to the hearing of the transfer application in chambers is, therefore, without merit.

 

351. Turning now to the second phase of the camera proceedings, we find that after the close of the case by the prosecution, the statement of Zulfiqar Ali Bhutto accused under section 342, Cr. P. C. was partly recorded in open Court on 24-1-1978. In answer to the very first question put to, him he replied as under;

 

“Since I am boycotting the proceedings of the trial, I will not be offering any defence. I have withdrawn as you know the Wakalatnama of all my counsel. This was done on the 10th of January, after my applications dated 18th of December, 1977, and 22nd December, 1977, were dismissed by this Hon’ble Bench in chambers. Since I am not offering my defence, I will confine my statement mainly to two issues---(1) Why this trial is taking place, why this case has been fabricated against we and (2) on my lack of confidence in getting a fair trial and justice. As for the other questions if they do not directly pertain to my own defence, I would be willing to give the answers.”

 

352. In this manner, out of a total of sixty-seven questions, he was asked fifty-three questions and the answers given were recorded on 24-1-1978 in open Court. But on and from 25-1-1978 the learned trial Bench decided to hold the further proceedings in camera. The relevant portion of the order passed by the Court in that connection is reproduced below;---

 

“2. More than one application has been presented by the accused before this Court so far in which scurrilous, scandalous and baseless attacks have been made against the impartiality of this Bench. More than one application, as stated by him, was also moved before the Supreme Court for transfer of the case on the ground of bias, the first of which was dismissed and the second was withdrawn. It is clear that the same process is sought to be repeated to defame this Court without any foundation to take advantage of the tradition that this Court does not defend itself in the Press.

 

3. We, therefore, find that it is in the interest of justice as well as in the interest of a just and proper determination of the issues involved in this case that the proceedings be now held in camera. We consequently order accordingly and direct that no part of the proceedings to be held in camera shall in any manner be publicised in any form whatsoever.”

 

353. In the same connection the Bench also appears to have passed a further order dated 25-1-1978 as under;---

 

“This morning, a few supporters of the principal accused were found shouting and yelling in the corridor outside the Chief Justice’s Chamber. From what they were saying, it is evident that they want to create a disturbance in the Court Room during the trial of the accused in this case.

 

In the circumstances, and since all the evidence in the case has already been recorded in open Court, we direct that to obviate the possibility of such disturbance being created, the proceedings of this Court in this case shall be in camera.”

 

In these circumstances the rest of the examination of the appellant and the subsequent proceedings were held in camera.

 

354. In this case the entire prosecution evidence was recorded in open Court. Even most of the examination of Zulfiqar Ali Bhutto as an accused under section 342, Cr. P. C. was completed in open Court on 24-1-1978. His remaining examination on 25-1-1978 and 28-1-1978 was held in camera. He corrected his statement recorded by the Court in camera on 25-1-1978 in his band and appended a note to it saying that : “I have corrected the statement but I cannot say if everything stated on 25-1-1978 has come on record unless I can verify it with the tape”. Similarly he corrected his, statement recorded by the Court in camera on 28-1-1978 and also added a note more or less to the same effect to it in his own hand and under his signature.

 

355. After the accused had closed their defence, on 7-2-1978 Zulfiqar Ali Bhutto made another lengthy statement mostly in the nature of a tirade against the Court for holding the proceedings in camera. This statement was also recorded in camera but this time the appellant refused to correct and sign the same. Instead of this he annexed a separate note to it which is reproduced below in extenso;

 

“On the previous occasion when the Court directed me to correct my statements, I made only typographical and grammatical corrections of the incomplete statements. There were vital gaps and omissions in the statements but since I had been denied my legal right to state why this false and fabricated case was concocted against me and since I was denied the opportunity to speak on the bias and prejudice of the Chief Justice and as I was not offering my defence, I merely verified and signed the corrections of the incomplete statements. I have again been directed to correct the statement I made today. I have neither seen the statement nor I am correcting it as I have been advised that the object is to prejudice my case. Hence I am returning the statement without looking at it. (I am not signing this covering note either).

 

My position remains the same. I have not signed the previous statements and nor this one 7th February, 1978.”

 

356. In this connection I am constrained to observe that in adding the remarks perhaps the appellant’s attitude was unnecessarily provocative toward the Court. To say the least, the insinuation that “there were vital gaps and omissions” in his statements recorded by the Court in camera on 25-1-1978 and 28-I-1978 appears to be an afterthought, otherwise there was nothing to prevent him from explicitly saying so in his notes on his two previous statements when they were comparatively fresh in his mind. Above all the proceedings in the trial Court were tape-recorded, and in this Court before us at the hearing his learned counsel did not even raise this issue to enable us to verify his gratuitous remarks with the help of the tape record. Even the appellant who personally appeared before us in Court and addressed us for four days, did not remotely advert to it, None of the other co-accused nor even their learned counsel including Mr. Qurban Sadiq Ikram, Advocate for Mian Muhammad Abbas appellant have at any stage supported him in this behalf. I have, therefore, no hesitation in repelling these insinuations against the trial Bench.

 

357. Zulfiqar Ali Bhutto appellant did not produce any evidence in defence. Mian Muhammad Abbas accused produced three witnesses, the first one was examined without oath. The evidence of the remaining two witnesses was recorded in camera but they were not cross-examined by Zulfiqar Ali Bhutto in spite of the opportunity allowed to him. These witnesses produced by Mian Abbas were mostly formal and related to his own defence. Ghulam Mustafa, Rana Iftikhar and Arshad Iqbal co-accused jointly produced one witness in their defence. He too was not cross-examined by Zulfiqar Ali, Bhutto. The evidence of none of the defence witnesses, who were examined in camera, has any material effect on the case for or against Zulfiqar Ali Bhutto. So drat he was in no way prejudiced by the examination of these witnesses in camera. The other accused did not raise any objection to the recording of the evidence of their witnesses in camera.

 

358. Indeed this is a peculiar case of its kind, and the stance adopted by Zulfiqar Ali Bhutto appellant during the course of the trial in a murder case is all the more surprising. On 24-1-1978 in answer to the very first question put to him in his examination under section 342 as an accused, he stated that he had already boycotted the proceedings after his transfer application had been dismissed by the Court, and added that he had decided not to offer his defence and would, therefore, confine his statement in Court as an accused mainly on two issues--”(1) why this trial is taking place, why this case has been fabricated against me and (2) on my lack of confidence in getting a fair trial and justice”. In actual fact he did not in substance answer any of the questions put to him in his examination as an accused.

 

359. In this manner he has deliberately failed to avail of the very valuable opportunity which the law afforded him in order to enable him personally to explain the circumstances appearing against vim in the prosecution evidence, under section 342 of the Code so that he may not be condemned unheard. Whether thereby, in adopting this obdurate attitude, he has in fact done any service to himself, it is for him to fathom.

 

360. Let me now advert to the propriety of the orders passed by the learned trial Bench in holding this part of the proceedings in camera, The matter is governed by section 352 of the Criminal Procedure Code, 1898, which lays down that;----

 

“The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them;

 

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”

 

361. The operative part of this section embodies the general rule that ordinarily criminal trials should be open to the public, as publicity is the authentic hallmark of judicial proceedings. In cases decided under the Common Law of England as well as in the United State of America, there is a traditional distrust of secret trials and the right to public trial of a person accused of a crime is generally recognised. As stated by Black, J. In re William Oliver (1);

 

“Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our Courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”

 

362. However, as stated in Corpus Juris Seeundum, Volume 23, section 963 ((1947) 333 U S 257). pages 849 to 853, the ‘public trial concept has never been viewed as imposing a rigid, inflexible straight jacket on the Courts, and it is generally conceded that the right to have the general public present at A trial is subject to some limitations. The trial Judge has discretion to close to the public, even without the consent of accused where there is good cause for such action. In exercising control over the trial proceedings, the Judge may exclude those whose conduct is of disturbing nature, or whose presence is likely to interfere with the administration of justice. It is usually held that unless accused is thereby prejudiced for want of aid, or counsel of any person whose presence might be of advantage to him, it is within the discretion of the Court to exclude persons from the Court room where it deems necessary so to do in order to preserve decorum, to secure the administration of justice, or to facilitate the proper conduct of the trial.

 

363. These principles underlie the judgments cited as Scott and another v. Scott (1913 A C 417), King v. Governor of Lewes Prison ((1917)2KBD254), Cora Lillian McPherson v. Cora Lillian McPherson (AIR1936PC246), Naresh Shridhar Mirajkar and others v. State of Maharashtra and others (A I R 1967 S C 1==(1966) 3 S C R 744 ), W. E. Gardner v. U. Kha (A I R 1936 Rang. 471), In re: M. R. Yenkalaraman (A I R 1950 Mad. 441), Mst. Shirin Nazir v. Badruddin Karamah Nazir and another (P L D 1963 Kar. 440), Mairaj Muhammad Khan v. The State (P L D 1978 Kar. 308), Abdul Rashid Chaudhry and others v. The Stale (P L D 1966 Lab. 562) and The Province of West Punjab v. Khan Iftikhar Hussain Khan of Mamdot (P L D 1949 Lab. 572).

 

364. According to Halsbury’s Laws of England (4th Edn.), Volume It, para. 280, in general all persons, except children have a right to be present in Court, provided there is sufficient accommodation and no disturbance of the proceedings. There is, however, an inherent jurisdiction in the Court to exclude the public if it becomes necessary so as to do so for the due administration of justice:

 

“In general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the Court may sit in camera. Thus the Court may sit in camera, either throughout the whole or part of the hearing, where it is necessary for the public safety, or where the subject-matter of the suit would otherwise be destroyed, for example by the disclosure of a secret process or of a secret document, or where the Court is of opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public. In addition the Court is directed or has been given power by statute or statutory rules to exclude the public in particular proceedings and is empowered to do so in any proceedings for an offence against morality or decency when evidence is given by children or young persons.”

 

CONCLUSIONS AS TO JUSTIFICATION FOR CAMERA PROCEEDINGS

 

365. It will thus be seen that it is an essential and salutary principle of administration of justice that it must not only be done but should also appear to be done. This necessarily carries with it the right to an open trial in the full gaze of the public, including the Press. This in turn leads to a healthy, fair and objective administration of justice calculated to promote public confidence in the Court and is conducive to dispel all misgivings about it. There can be no two opinions about it. But this rule, on al accounts, is not a rigid and inflexible one, and must not be pressed to its breaking point in defeating the very ends of justice. It admits of exceptions and cases may arise whereby following this rule for an open trial justice may itself be defeated. A Court of law exists for the administration of justice. The primary function and the ultimate goal before a Court is to do justice between the parties. However, as seen, above, there is no dearth of cases in which the very requirement of the administration of justice in itself demands that a trial may be held in private or in camera and an open public trial is likely to result in the stultification of justice. In this category are included cases within the parental jurisdiction of the Court for the safeguard of the interests of the ward or lunatics. But it is, nonetheless, not possible to prepare an exhaustive list of all such cases. In fact each case must be judged on its own facts in this respect. Indeed even the Legislature has also, in its wisdom, expressly provided for the holding of trials in camera under some of the statutes in force in this country.

 

366. In this connection section 14 of the Official Secrets Act (XIX of 1923) lays down that in addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public should be excluded during any part of the hearing the Court may make an order to that effect, but the passing of sentence shall in any case take place in public. Similarly in section 53 of the Divorce Act’ (IV of 1969) it is expressly provided that the whole or any part of any proceedings under the Act may be heard, if the Court thinks fit, within closed doors. Also section 11 of the Defence of Pakistan Ordinance (XXX of 1971) lays down that in addition, and without prejudice, to any powers which a Special Tribunal may possess by virtue of any law for the time being in force to order the exclusion of the public from any proceedings, if at any stage in the course of the trial of any person before a Special Tribunal, application is made by the prosecution on the ground that the publication of any evidence to be given or of any statement to be made in the course of the trial would be prejudicial to the public safety, and that, for that reason, ‘all or any portion of the public should be excluded during any part of the hearing, the Special Tribunal may make an order to that effect. These are some of the statutory exceptions to the general rule for an open trial found in the corpus juris of this country.

 

367. While the operative part of the section embodies the general rule to ensure that the criminal inquiries and trials are held in open Court; under the Proviso to the section, the Legislature in its wisdom has, however, grafted the exception to the general rule. Under the Proviso the discretion is vested in the Presiding Judge or Magistrate and he may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person shall not have access to, or remain in the Court. This discretion thus conferred on the Judge or the Magistrate under the Proviso is ostensibly very wide and is not hedged in by other considerations. This, however, does not mean that thereby he is armed with the licence to act on mere humour and caprices,, or that he is free to act arbitrarily and without reason. In all circumstances, even in exercising the discretion, he must act in aid of the administration of justice and with that end in view and only on sound judicial principles, bearing in mind the facts of each case.

 

368. It cannot be denied that in the trial Court a number of applications were filed from time to time in which unfortunately scandalous and scurrilous allegations were made mostly against the present Chief Justice, who headed the trial Bench constituted for the trial of this case in the Lahore High Court. In the course of the hearing in this appeal before us also those allegations were repeated on behalf of the appellant to contend that the entire trial stood vitiated because of bias in the learned Chief Justice. At another place in this judgment I have dealt with this plea of bias raised on behalf of the appellant, which has been overruled by me as baseless. The blasphemous allegations attributing bias and motive, made in the face of tithe Judge of a superior Court constitute one of the worst forms of contempt, and these were repeated with impunity in this case to defame the Judge and the Court, with scant regard for the dignity of the law and its enforcing agency, viz. the Court. In the course of N this trial the appellant, who was no less a person than the former President and Prime Minister of the country, appears to have adopted an openly hostile attitude in Court and became defiant towards the end, and it became all the more arduous for the Court to conduct the trial. He appears to have further developed a strategy, and started indulging in vilification and insults towards the Court and wanted publicity for it, without caring for his own defence in the case. Indeed the unfortunate situation thus created became all the more embarrassing to control at the trial.

 

369. It appears, therefore, that from 25th of January 1978, onward the Court had a genuine and reasonable apprehension that the appellant was out to further indulge in scurrilous and scandalous allegations against it and wanted publicity for it. This was likely to result in undermining the dignity of the High Court and shake the confidence of the people in it. In these circumstances, the Court was left with no alternative but to hold further proceedings in camera in the larger interest of the administration of justice; and this it had power to do, in the exercise of the discretion vested in it under the Proviso to section 352 of the Code.

 

370. On 25th of January 1978, the Court also observed that a few of the supporters of Zulfikar Ali Bhutto appellant were found shouting and yelling in the corridor outside the Chief Justice’s Chamber. This raised a further apprehension in the mind of the Court about a likely disturbance in the proceedings of the Court, if held in open; and for this additional reason as well the Court was justified in holding the further proceedings in the case in camera. Before us the learned counsel vaguely expressed his doubt about the genuineness of this last mentioned order passed on 25-1-1978, but this appears to be a wholly unjustified allegation, and does not deserve any serious consideration.

 

371. Before concluding discussion of this matter, it would not be out of place to repeat that the entire prosecution evidence in this case was recorded in open Court. Appellant Zulfikar Ali Bhutto did not produce any evidence in defence. Most of his own examination as an accused under section 342, Cr. P. C. was also conducted in open Court. In these circum-h stances, I am satisfied that the alleged irregularity, if any, in the mode of the trial by holding it partly in camera has not in fact occasioned any failure of justice or prejudice to the appellant in his trial or defence. The objection is thus without any force and is hereby repelled.

 

372. One last pint may also be noticed. While commencing the discussion of the validity of camera proceedings held by the trial Court, it has been stated that one of the grievances of the appellant has all along been that while publicity was given to wild statements and allegations made by the prosecution witnesses and the confessing accused against him, but similar publicity was denied when the time came for him to state the reasons for his false implication in the case, and to expose the biased attitude of the Court. For detailed reasons already stated in the preceding paragraphs, I have come to the conclusion that, in the circumstances, the High Court was justified in holding this part of the trial hi camera, and also in hearing Zulfiqar Ali Bhutto’s miscellaneous application in chambers, as this was necessary in the interest of the administration of justice itself, so that High Court was not subjected to scurrilous scandalisation.

 

373. As far as .the proceedings conducted in open Court are concerned, the appellant can have no grievance if they were reported in the Press or otherwise. It seems to me, however, that publicity ought not to have been given to the statements made by the other co-accused during the time when the proceedings were being held in camera. It is possible, as suggested by the learned Special Public Prosecutor, that those statements were allowed to be published .for the reason that the camera proceedings had not been necessitated on account of anything done or intended to be done by the co-accused. Whatever the reason, it would have been better to avoid even the publication of these statements, which were also recorded in camera. The fact, however, remains that the publication of the statements made by the co-accused during camera proceedings does not, in any manner, detract from the necessity which was clearly made out for excluding the public from this stage of the trial, once appellant Zulfikar Ali Bhutto had notified the Court of his intention to repeat the allegations he had already made and publicised in successive petitions against the presiding Judge of the trial Bench.

 

Examination of Evidence

 

374. Having disposed of the several contentions raised by Mr. Yahya Bakhtiar as to the admissibility of certain pieces of evidence, exclusion by the High Court of relevant and admissible evidence, as well as the alleged illegalities committed by the High Court in the conduct of the trial, and other connected matters, I now proceed to examine the evidence brought on the record in the light of the principles and considerations as brought out in the preceding paragraphs. As the mainstay of the prosecution is the evidence of the two approvers, namely, Masood Mahmood (P. W. 2) and Ghulam Hussain (P. W. 31), it will be useful to given a brief resume of their depositions at this stage, so as to bring out their salient points.

 

APPROVER MASOOD MAHMOOD’S VERSION

 

375. After giving a history of his career in the police service of Pakistan since 1948, Masood Mahmood stated that, while serving as Managing Director of the Board of Trustees of the Group Insurance and Benevolent Funds in the Establishment Division, in Grade 21, he was asked one day by the Establishment Secretary, Mr. Vaqar Ahmad, to call on the then Prime Minister Zulfiqar Ali Bhutto on the morning of the 12th of April 1974, and to see him first before meeting the Prime Minister. Mr. Vaqar Ahmad told the witness that the Prime Minister was going to make an offer of appointment to him which he must accept, in view of the state of his health and family circumstances, and the fact that the officers of Grade 21 and above could be retired from service at anytime by the Government. During his interview with the Prime Minister, the latter offered him the post of Director-General of the Federal Security Force, which had fallen vacant on the retirement of the previous incumbent Malik Haq Nawaz Tiwana. The Prime Minister advised Masood Mahmood to keep on the right side of the Establishment Secretary. He also discussed the nature of the new assignment, saying that he wanted the witness to make the Federal Security Force into a deterrent force so that the people of Pakistan, Government Ministers and Members of the National and Provincial Assemblies would fear it. He further informed the witness that he should not seek instructions from the then Minister of the Interior (although the Federal Security Force was technically under the Ministry of Interior); and advised him not to terminate the services of re-employed officers without .his prior permission. In this connection he particularly mentioned appellant Mian Muhammad Abbas, who was then serving as a Director in the Federal Security Force.

 

376. Masood Mahmood assumed charge of the office of Director-General of the Federal Security Force on the 23rd of April 1974, but before that date he was visited several times by the Prime Minister’s Chief Security Officer, Sated Ahmad Khan (P. W. 3), and his Assistant, the late Abdul Hamid Bajwa, for the purpose of ensuring that he would not refuse the offer. According to Masood Mahmood, both these gentlemen made it clear to him, in their own way, that a refusal on his part might endanger his life and career. The witness stated that the Prime Minister gave to him an oral charter of his duties to the effect that he wanted the force to be available to him for political purposes, that is, for breaking up of political meetings; harassment of personages both in his own party and in the opposition; and induction of plain clothed persons in public meetings addressed by him to swell the crowd. He was also directed to brief the Prime Minister about the law and order and the political situation in the country, and also to keep him informed about the activities of members of his own party, including some of his ministers, and those in the opposition. He was further asked to be present in the National Assembly whenever the Prime Minister was attending its session or was otherwise in his chambers in the National Assembly; and also at places where the Prime Minister went on tour.

 

377. Masood Mahmood had been in his new office for about a month or so, when he witnessed the unpleasant exchange of words in the National Assembly between the Prime Minister and Ahmad Raza Kasuri (P. W. 1) on the 3rd of June 1974, during the course of which the Prime Minister had asked Kasuri to keep quiet, adding that he had bad enough of him and would not tolerate his nuisance any more. A day or two later the Prime Minister sent for Masood Mahmood and told him that be was fed up with the obnoxious behaviour of Ahmad Raza Kasuri, and that Mian Muhammad Abbas accused knew all about his activities. He also told him that Mian Muhammad Abbas had already been given directions through the witness’s predecessor to get rid of Ahmad Raza Kasuri. The Prime ‘Minister went on to instruct the witness that he should ask Mian Muhammad Abbas to get on with the job and to produce the dead body of Ahmad Raza Kasuri or his body bandaged all over. He further told Masood Mahmood that he would hold the latter personally responsible for the execution of this order.

 

378. According to Masood Mahmood, he protested against this order saying that it was against his conscience and also against the dictates of God, but the Prime Minister lost his temper and shouted that he would have no nonsense from him or Mian Muhammad Abbas, and added “you don’t want Vaqar chasing you again, do you?”.

 

379. After this interview, the witness called Mian Muhammad Abbas to his office, and repeated to him the orders given by the Prime Minister. Mian Muhammad Abbas was not the least disturbed, and told the witness that he need not worry about it, and be would see that the orders were duly executed. He also said that he had been reminded of this operation by the witness’s predecessor more than once. Masood Mahmood stated that he was reminded and goaded again and again about the execution of this order by the former Prime Minister, both personally as well as on the green telephone, and also through Sated Ahmad Khan (P. W. 3)..

 

380. Continuing, Massood Mahmood stated that in July, 1974, during his visit to Quetta, the Prime Minister had asked him to take care of Ahmad Raza Kasuri who was likely to visit Quetta, and, accordingly, the witness had told M. R. Welch (P. W. 4), then Director, Federal Security Force at Quetta, that some anti-State elements, including Ahmad Raza Kasuri, were likely to be in Quetta, and they should be got rid of. He told Welch that Kasuri was delivering anti-State speeches and was doing damage to the interests of Pakistan. Kasuri did visit Quetta in September, 1974, and a day or two before that Masood Mahmood telephoned Welch in that connection asking the latter to take care of Kasuri in Quetta; but M. R. Welch did not take any effective steps to get rid of Kasuri. Masood Mahmood mentioned certain correspondence which passed between him and M. R. Welch on this subject, to which a detailed reference will be made later.

 

381. In August, 1974, Ahmad Raza Kasuri’s car was fired at in Islamabad, apparently as part of the plan formulated by Mian Muhammad Abbas in execution of the mission given to him by Masood Mahmood. However, Ahmad Raza Kasuri escaped this attempt on his life. Details of this incident will also be mentioned later.

 

382. Coming to the present incident, Masood Mahmood stated that he was in Multan, along with the Prime Minister, when he was informed by Zulfiqar Ali Bhutto on the morning of 11th November,. 1974, on the telephone that “Mian Muhammad Abbas has made complete balls of the situation. Instead of Ahmad Raza he has got his father killed”. On his return to his headquarters in Islamabad, the witness was informed by his Director Mian Muhammad Abbas that his operation had been successful, but instead of the intended victim his father Nawab Muhammad Ahmad Khan had been murdered at Lahore. The witness was summoned by the Prime Minister, who told him that the actual task had yet to be accomplished. The witness, however, declined to carry out such orders any more, with the result that thereafter threats were held out to him and attempts were made on his life as well as to kidnap his children from the Atchison College, Lahore. Several times his food at the Chamba House Lahore, where he used to stay during his visits to that city, was poisoned, and he discovered that some of his own subordinates seemed to have been won over, since he bad seen them lurking at places where they should not have been when he was around.

 

383. Masood Mahmood asserted at the trial that he or his family had no grudge or motive against the deceased Nawab Muhammad Ahmad Khan or his son Ahmad Raza Kasuri, and that, in fact, his father and the deceased had been great friends, since the witness himself hailed from Kasur.

 

384. After narrating these and other details of the conspiracy resulting in the murder of Nawab Muhammad Ahmad Khan, Masood Mahmood explained the circumstances leading to his confessional statement, the correctness of which he re-affirmed at the trial. He stated that he was taken into protective custody in the early hours of the 5th of July, 1977, on the proclamation of Martial Law in Pakistan; that he addressed a letter to the Chief Martial Law Administrator on the 14th of August, 1977, in which be made a clean breast of the misdeeds of the. Federal Security Force conducted by him under the orders of the former Prime Minister; that after his interrogation by the Federal Investigation Agency he made a confessional statement before a Magistrate at Islamabad on the 24th of August, 1977; that he was granted pardon by the District Magistrate of Lahore on his application dated the 7th September, 1977; and after the grant of pardon he made a detailed statement under section 164 of the Criminal Procedure Code.

 

APPROVER GHULAM HUSSAIN’S TESTIMONY

 

385. Approver Ghulam Hussain (P. W. 31) deposed at the trial that after his retirement as Naib Subedar from the Army, where he served for 14 years as a commando, he joined the Federal Security Force on the 3rd of December, 1973, in the rank of a Sub-Inspector, from which post he was later promoted to the rank of an Inspector. His paper posting was in Battalion No. 5 stationed at Rawalpindi but an oral order was given by appellant Mian Muhammad Abbas chat he would work under him at the Headquarters. In April, 1974, he was directed by Mian Muhammad Abbas to start a Commando Course, and he set up his `camp near the barracks of the 4th Battalion in Islamabad. The trainees used to bring their own weapons from their respective battalions, but the ammunition was drawn from the Federal Security Force Armoury at the Headquarters; which was under the charge of Sub-Inspector Fazal Ali (P. W. 24). He accordingly, drew 1500 cartridges of light machine-guns (L. I. G.) sub-machine guns (S. I. G.), besides other ammunition, on the basis of Road Certificate Exh. P. W. 24/7.

 

386. Ghulam Hussain stated further that in the end of May, 1974, he was summoned by Mian Muhammad Abbas to his office and asked about the methods that lie would adopt for kidnapping or murdering a person. He was directed to reduce his answer into writing. He complied with the orders, and Mian Muhammad Abbas kept the paper with him. Two or three weeks later he was again summoned by Mian Muhammad Abbas and asked whether he knew Ahmad Raza Kasuri. On his replying in the negative, Mian Muhammad Abbas ordered him to find out, and for this purpose gave him several addresses where he could possibly contact Ahmad Raza Kasuri; and Head Constable Zaheer was deputed to assist him in this behalf. Mian Muhammad Abbas also placed a jeep and a driver at the disposal of the witness and asked him to use the jeep after changing the number plates. The witness was once again called by Mian Muhammad Abbas in the beginning of August, 1974, and asked about the result of his efforts in identifying and locating Ahmad Raza Kasuri. On hearing from Ghulam. Hussain that he bad identified Ahmad Raza Kasuri and also located his residence in Islamabad, Mian Muhammad Abbas told him that it would be his duty to remove Ahmad Raza Kasuri from the path of the Prime Minister, and that it was an order given by Masood Mahmood. The witness understood that by the expression “removal of Mr. Kasuri” Mian Muhammad Abbas meant that he should kilt Ahmad Raza Kasuri. The witness expressed his unwillingness to carry out this order, but Mian Muhammad Abbas told him that this murder had to be committed since “Mr. Kasuri was an enemy of Mr. Zulfiqar Ali Bhutto”. He promised full protection to the witness. He emphasised upon him that it was a secret mission, and since he had been taken into confidence he would have to perform it, otherwise his service as well as his life would be in danger. Ghulam Hussain thereupon agreed to implement the orders.

 

387. Giving further details, Ghulam Hussain stated that his Director Mian Muhammad Abbas gave him a chit and directed him to obtain a sten-gun, a pistol, two magazines and ammunition from Fazal Ali (P. W. 24), but the latter refused to honour the chit without making an entry in the relevant register. Thereupon the witness reported the matter to Mian Muhammad Abbas, under whose orders Fazal Ali was called to his office and told to issue the arms and ammunition without making any entry in the register, and warned that disobedience of the order would land him in trouble. Thereupon Fazal Ali handed over to the witness a step-gun with two magazines, a pistol with two magazines and ammunition for both the weapons. Tile witness gave a receipt to him and took these things to the Commando Camp, but Fazal Ali did not make any entry in the register kept at the Armoury.

 

388. Ghulam Hussain was again called by Mian Muhammad Abbas to his office on the :0th of August, 1974 and reprimanded for not performing the task assigned to him, although Mian Muhammad Abbas was getting him promoted as Inspector. He told witness that the Director-General Masood Mahmood was unhappy as the Prime Minister had started abusing him because of this procrastination. Mian Muhammad Abbas threatened him that any further inaction on his part might endanger his own life. Ghulam Hussain noticed that during those days Mian Muhammad Abbas had also detailed another team with instructions to do away with the witness in case he failed to perform the task assigned to him, and then proceed to perform it.

 

389. On the morning of the 24th of August, 1974, Ghulam Hussain established telephonic contact with Ahmad Raza Kasuri at his residence in Islamabad, the telephone number having been supplied to him by Mian Muhammad Abbas. Ghulam Hussain told Ahmad Raza Kasuri that he was a clerk in the office of the Cantonment Board and wanted to see him for redress of his grievances. Ahmad Raza Kasuri advised the witness to meet him at 1-n0 p. m. at the gate of the M. N. A. Hostel in Islamabad. The witness reached the M. N. A. Hostel in his blue jeep, accompanied by Head Constable Allah Bakhsh and F. C. Mulazim Hussain, and he saw Ahmad Raza Kasuri sitting in his car and talking to another person standing outside. The witness parked the jeep under a tree and kept watch on Ahmad Raza Kasuri, and found himself in a fix as he did not want to kill a man who had been so sympathetic to him on the telephone. By about 3-00 p. m. he came to a decision not to commit the offence but to save the life of Ahmad Raza Kasuri.

 

390. He then saw the car of Ahmad Raza Kasuri emerging from the M. N. A. Hostel, and heading towards his residence. Ghulam Hussain directed. Mian Khan driver of the jeep to follow, and ordered Mulazim Hussain who was armed with a sten-gun and two fully loaded magazines, to fire in the air when directed. The witness was himself armed with a pistol. On reaching an intersection in the road he asked the driver to take the jeep to the left and ordered Mulazim Hussain to open fire through the rear window of the jeep. Mulazim Hussain complied with the orders, and when he fired the first burst, Ahmad R.aza Kasuri glanced towards the jeep, and sped on. On returning to the Headquarters of the Federal Security Force he was met by Assistant Director Ch. Nazir Ahmad, who taunted him on having failed to hit Ahmad Raza Kasuri from a distance of 30 yards despite