[House of Lords]
[Opinions of the Lords of Appeal for Judgment]
Appellate Committee: Lord Hoffmann, Lord Hope of Craighead,
Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood & Lord Mance
Bradford & Bingley plc --- Appellants.
versus
Rashid (FC) --- Respondent.
[2006] UKHL 37 on appeal from [2005] EWCA Civ 1080
Justin Fenwick QC & Nicole Sandells (Instructed by Addleshaw Goddard) for Appellant.
Christopher Nugee QC & William Hanbury (Instructed by Williscroft & Co) for Respondent.
Date of hearing: 24th May 2006
LORD HOFFMANN
My Lords,
1. The chief question is whether a letter containing an acknowledgement of a debt for the purposes of section 29(5) of the Limitation Act 1980 is inadmissible on the ground that the letter formed part of a negotiation with a view to the creditor giving the debtor time to pay or accepting a lesser amount. In common with all of your Lordships, I consider that the letter was admissible. But there is some difference of opinion over the reasons and I must therefore state my own. There is also a subsidiary question as to whether the letters contained acknowledgements within the meaning of the Act. They are set out in the speech to be delivered by my noble and learned friend Lord Brown of Eaton-under-Heywood and I agree with him and my noble and learned friend Lord Hope of Craighead that references in the letter of 26 September 2001 to an "outstanding balance" and in the letter of 4 October 2001 to an "outstanding amount" are plain acknowledgements of the existence of a debt. It is clear on the authorities that nothing more is needed.
2. The more complex question is why the letters are admissible. There is no doubt that they formed part of a negotiation. They were written in reply to an invitation from the building society to make them an offer. Judge Hawkesworth QC, sitting in the Bradford County Court and hearing an appeal from the Deputy District Judge, who had admitted one of the letters and given judgment for the building society, regarded this as sufficient to exclude the letters on the grounds that they were impliedly written without prejudice. He said:
"What was in issue was enforcement, and it seems to me there is equally a public policy issue in encouraging the parties to reach agreement as to the repayment of a debt as there is in encouraging them to agree as to the existence of a debt."
3. The Court of Appeal agreed. I doubt whether anyone could object to the general sentiment expressed. Even when the indebtedness cannot be denied, the parties should be encouraged to agree on the method by which it should be discharged, if necessary giving the debtor time to pay. But the question is how this policy can best be given effect and here, it seems to me, the judge and the Court of Appeal took a rather one-sided view of the matter. They looked only at encouraging the debtor to be open with his creditor without fear of what he said being used against him. But it takes two to negotiate and there is also a public policy in encouraging the creditor not to initiate legal proceedings. The acknowledgement rule plays an important part in furthering this policy because it means that a creditor, negotiating on the basis that his debt has been acknowledged, can proceed with the negotiations and give time to pay without being distracted by the sound of time's winged chariot behind him. It is also unfair that a debtor who does not dispute his indebtedness should be able to ask for time and use that indulgence to rely on the statute. A good example is the celebrated case of Spencer v Hemmerde [1922] 2 AC 507, in which a member of the Bar borrowed £1,000 for two months in 1910 and then did not pay it back. In 1915 there was a correspondence in which the creditor pressed for payment and the debtor acknowledged his indebtedness but sought to gain time. In consequence of this correspondence the creditor, as Viscount Cave put it, "stayed his hand". When proceedings were commenced in 1920, the debtor pleaded the statute of limitations. As the law then stood, it was also necessary that there should be not only an acknowledgement but also an inference of a promise to pay. The issue before the House was whether such a promise could be inferred. There was no suggestion that the letters might be excluded as written in the course of negotiations - a significant omission to which I shall in due course return. However, it is difficult to escape the conclusion that the House, in deciding that the letters were sufficient to lift the time bar, was influenced by the injustice of a debtor asking for time to pay an acknowledged debt and then pleading the statute. As counsel for the creditor said (at p. 510), "the debtor…was asking for an indulgence, and by means of those letters he obtained the indulgence which enabled him to set up the statute."
4. The policy of encouraging negotiation therefore requires that the law should give effect to two objectives: first, the objective furthered by the normal without prejudice rule, which allows the parties to speak freely without fear that their statements will be relied upon as admissions if negotiations should break down, and secondly, the objective of the special acknowledgement rule in the Limitation Act, which allows a creditor to give time to negotiate for the payment of an admitted indebtedness without fear that the claim will become statute barred. These two objectives may sometimes appear to pull in opposite directions, although I hope to demonstrate that upon a proper analysis they do not.
5. The Court of Appeal, as I have said, did not recognise any possibility of conflict because they gave no weight to the policy of the acknowledgement rule. In fact, I think that the decision of the Court of Appeal would largely destroy that rule. In the nature of things, most acknowledgements will be coupled with attempts to obtain time to pay or remission of part of the debt. As Lord Sumner said in Spencer v Hemmerde [1922] 2 AC at p. 526:
"as a rule the debtor who writes such letters has no intention to bind himself further than he is bound already, no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure."
In other words, he intends to initiate or pursue a negotiation as to how and how much of the debt should be paid. It is of course possible that a debtor in arrear might write an acknowledgement unaccompanied by any suggestion that he should be allowed time to pay. But, looking at the examples of acknowledgements which have been admitted and construed as such in the past, I think that such cases would be unusual. Certainly in Spencer v Hemmerde there was material upon which counsel for the debtor, if the thought had occurred to him, could have argued that his client's letters formed part of an attempt at negotiation. Likewise in Dungate v Dungate [1965] 1 WLR 1477, the debtor's letter saying:
"Keep a check on totals and amounts I owe you and we will have account now and then….Sorry I cannot do you a cheque yet. Terribly short at the moment"
bears a strong family resemblance to the letters in this case. The same is true of the acknowledgement in the Canadian case of Phillips v Rogers [1945] 2 WWR 53, 56:
"Re your correspondence re Mr C H Phillips claim $1300 which he is prepared to settle November 1st for $700. Please thank Mr Phillips for the kind offer. I have no idea where I am going to get $700 and meet your demands by November 1st unless I rob a bank and I really don't think a case of this kind warrants such drastic action on my part. If Mr Phillips or yourself have any ideas how I can get that amount of money, honestly I shall be pleased to consider them."
6. These three letters must be typical of those written by hard pressed debtors since time immemorial and they all either respond to invitations to negotiate terms of payment or attempt to initiate such negotiations. If the acknowledgements they contain are excluded by the without prejudice rule, that will be an end of the rule.
7. In the Court of Appeal, Sir Martin Nourse did not accept this. He said (at paragraph 29):
"each of these cases depends in the end on its own facts and it is difficult to believe that this case will serve as a precedent for any other."
8. This seems to me to make things worse rather than better. The Court disavows any statement of principle by which the correspondence in cases like Spencer v Hemmerde [1922] 2 AC 507, Dungate v Dungate [1965] 1 WLR 1477 and Phillips v Rogers [1945] 2 WWR 53 can be distinguished. This would be bound to lead to fine distinctions and a good deal of litigation.
9. It is therefore necessary to find a principle which would preserve the acknowledgement rule without doing damage to the without prejudice rule. The solution proposed by my noble and learned friend Lord Hope of Craighead, based on Scottish authority, is to deny altogether the application of the without prejudice rule to unqualified admissions, even if made in the course of negotiations for a settlement. In Scotland, this is based upon a fairly recent line of authority going back to the decision of Lord Wylie in Watson-Towers Ltd v McPhail 1986 SLT 617.
10. Watson-Towers was a motion for summary judgment for the value of goods which had been supplied subject to a reservation of title clause. The pursuer's evidence consisted of a letter from the defender making an offer expressed to be without prejudice but which attached a schedule listing the goods in its possession. Lord Wylie held that the schedule was admissible because it was, on the true construction of the letter, not a "hypothetical admission or concession for the purpose of securing a settlement" but a statement of fact.
11. This case was followed by Lord Sutherland in Daks Simpson Group plc v Kuiper 1994 SLT 689, another motion for summary judgment in a claim against a director for an account of secret commissions. In a letter expressed to be without prejudice, the director had said that he was prepared to accept that he had received such commissions in stated amounts. Lord Sutherland said (at p. 692):
"I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice."
12. In support of this view, Lord Sutherland referred not only to Watson-Towers Ltd v McPhail 1986 SLT 617 but also to the Canadian case of Kirschbaum v 'Our Voices' Publishing Co [1971] 1 OR 737, in which also the judge had distinguished between whether an admission in a letter without prejudice was "to concede a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist." He might have added a reference to Lord Kenyon in Turner v Railton (1796) 2 Esp 474:
"Concessions made for the purpose of settling the business for which the action is brought, cannot be given in evidence; but facts admitted I have always received."
13. This limitation on the scope of the without prejudice rule, confining it to admissions which can be construed as made hypothetically rather than without qualification, is not limited to the use of these admissions as acknowledgements under section 29(5) or its Scottish equivalent. It is entirely general. As such, I think that, with all respect to the Scottish judges, including my noble and learned friend Lord Hope, it goes too far. There is nothing in the modern English authorities to encourage a dissection of correspondence or, still worse, conversations, to ascertain whether admissions of fact were made hypothetically or without qualification. It has frequently been said that the purpose of the rule is to encourage parties engaged in settlement negotiations to express themselves freely and without inhibition. It is well established that the rule applies to any genuine attempt at negotiation, whether or not the communications are expressly said to be without prejudice, and I think it would be most unfortunate if the law introduced a new requirement that the parties should preface anything they said with a standard disclaimer that any admissions of fact were to be taken to be hypothetical and solely for the purposes of the negotiation.
14. It is true that the adoption of such a rule would preserve the acknowledgement rule, because an acknowledgement would by definition be an unqualified admission of liability. But I think that such a remedy would be to throw out the baby with the bathwater and that a more precisely targeted principle is needed.
15. Another possible solution is to say that negotiations over the mode of payment of an admitted debt are not really negotiations for the purposes of the without prejudice rule. The debtor is seeking an indulgence rather than a compromise. This is in some ways an attractive solution and I would be willing, if pressed by there being no other, to adopt it. But I feel somewhat uneasy about it because, first, it also has wider implications than saving the acknowledgement rule and secondly, it may in some cases be ineffective to do so. For example, it is clear from the authorities that an admission of indebtedness in general terms, as in this case, is sufficient to constitute an acknowledgement. The procedural bar against bringing the action is lifted and the creditor is free to prove his debt in the ordinary way. But assume that this acknowledgement is made in the course of negotiations about both the amount of the debt and the mode of payment. It would be difficult to say that there was no genuine negotiation to settle the question of the amount for which the debtor was liable. If the negotiations break down and the amount of the debt is later contested in court, one would expect any admissions as to the amount made in the course of negotiations to be excluded by the without prejudice rule. But would the acknowledgement be admissible for the purposes of section 29(5)? If the test is whether the parties were genuinely negotiating over liability rather than the concession of an indulgence, it would have to be excluded. And this would be the case even if the dispute over liability was relatively trivial. It would be hard to distinguish cases on such uncertain grounds. But the public policy of encouraging such negotiations to proceed, once liability has in principle been conceded, without putting the creditor at risk of finding himself time-barred also seems to me a strong one.
16. The solution which I would therefore favour, and which I think is in accordance with principle, is that the without prejudice rule, so far as it is based upon general public policy and not upon some agreement of the parties, does not apply at all to the use of a statement as an acknowledgement for the purposes of section 29(5). That, I would infer, is what everyone thought in Spencer v Hemmerde [1922] 2 AC 507. It is in accordance with principle because the main purpose of the rule is to prevent the use of anything said in negotiations as evidence of anything expressly or impliedly admitted: that certain things happened, that the party concerned thought he had a weak case and so forth. But when a statement is used as an acknowledgement for the purposes of section 29(5), it is not being used as evidence of anything. The statement is not evidence of an acknowledgement. It is the acknowledgement. It may, if admissible for that purpose, also be evidence of an indebtedness when it comes to deciding this question at the trial, but for the purposes of section 29(5) it is not being used as such. All that an acknowledgement does under section 29(5) is to allow the creditor to proceed with his case. It lifts the procedural bar on bringing the action. Questions of evidence to prove the debt will arise later.
17. The distinction between adducing a statement as evidence of something expressly or impliedly asserted in the statement and simply as evidence that the statement was made is well known in the law of evidence ( see Subramaniam v. Public Prosecutor [1956] 1 W.L.R. 965) and was the basis upon which the Court of Appeal in Muller v Linsley and Mortimer [1996] 1 PNLR 74 decided that without prejudice correspondence was admissible to prove that a party was acting reasonably in settling a claim against a third party. In a judgment with which Swinton Thomas and Leggatt LJJ agreed, I said:
"Many of the alleged exceptions to the rule will be found on analysis to be cases in which the relevance of the communication lies not in the truth of any fact which it asserts or admits, but simply in the fact that it was made."
I gave as examples letters used to prove a settlement reached as a result of negotiations, a statement amounting to an act of bankruptcy (Re Daintrey [1893] 2 QB 116) and correspondence used to explain delay in commencing or prosecuting litigation.
18. After a detailed examination of the cases in Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436, 2446 Robert Walker LJ expressed some doubt as to whether the "large residue of communications which remain protected [as being outside the recognised exceptions to the without prejudice rule] can all be described as admissions." I would certainly accept that the without prejudice rule is capable of excluding statements which are not being used as evidence of the truth of what they expressly or impliedly admit. For example, I do not think that a litigant could be cross-examined to credit on without prejudice correspondence to show that he has made previous inconsistent statements. And I have no doubt that the Unilever case was rightly decided. It was obvious to everyone in that case that the alternative to settlement of the patent dispute was litigation. The without prejudice meeting was held with a view to discussing settlement and the notion that any reference to the consequences of failure should be admissible as a threat of litigation contrary to section 70 of the Patents Act 1977 was absurd. But, as I pointed out in Muller's case, the thread which runs through most of the alleged exceptions to the without prejudice rule is that the statement is not being used as evidence of the truth of anything expressly or impliedly asserted or admitted. The fact that acknowledgements used for the purposes of the Limitation Act fall within the same category, combined with the public policy of preserving the acknowledgement rule, seem to me to provide strong grounds for holding that the without prejudice rule does not apply to them. That produces a clear rule, easy to apply and having no side-effects, which preserves the acknowledgement principle without otherwise restricting the scope of the normal without prejudice privilege. It is of course open to the parties to agree that whatever they say in negotiations will not be capable of being used even as an acknowledgement for the purposes of section 29(5), but in such a case the creditor will be alerted to the fact that the debtor intends to rely upon the statute.
19. For those reasons I would allow the appeal and restore the decision of the Deputy District Judge.
LORD HOPE OF CRAIGHEAD
My Lords,
20. I agree with all my noble and learned friends, whose speeches I have had the advantage of reading in draft, that the appeal should be allowed. But my reasons are not entirely the same as theirs. So I should like to explain in my own words why I have reached the same conclusion as they have done.
21. I have no difficulty in regarding the letter of 26 September 2001 as an acknowledgment of the appellants' claim within the meaning of section 29(5) of the Limitation Act 1980. In Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565, 575E-F Kerr J said that the debtor can only be held to have acknowledged the claim if he has in effect admitted his legal liability to pay that which the plaintiff seeks to recover. But his acknowledgment need not identify the amount of the debt. As Diplock LJ said in Dungate v Dungate [1965] 1 WLR 1477, 1487E-F, his acknowledgment will be sufficient if the amount for which he accepts legal liability can be ascertained by extrinsic evidence.
22. In its letter of 26 September 2001 the Advice Centre stated that the respondent was not in a position to pay "the outstanding balance, owed to you." It seems to me that the plain meaning of those words is that the respondent was admitting that he owed the appellants a sum of money which for the time being he was unable to pay. There could not be a clearer way of acknowledging that the respondent was under a legal liability to pay the outstanding balance. It is not disputed that the amount of the balance was capable of being determined by extrinsic evidence. In Dungate, at p 1487H, having construed the letter on which the plaintiff relied which referred to "amounts I owe you" as an acknowledgment under the Act, Diplock LJ said that this did not seem to him to differ from the statement which was held to be an acknowledgment in Spencer v Hemmerde [1922] 2 AC 507. The wording of the letter of 26 September 2001 is no less clear, and I think that the same result must follow. The wording of the letter of 4 October 2001 is slightly different. It refers to "the outstanding amount". But the key to the meaning of that phrase lies in its use of the definite article. This indicates that there is an amount representing the respondent's present state of indebtedness which is readily ascertainable. I think that this letter too was an acknowledgment within the meaning of the statute.
23. The more difficult issue is whether these acknowledgments are protected by the "without prejudice" privilege. As Megarry V-C said in Chocoladefabriken Lindt & Sprungli AG and another v The Nestlé Co Ltd [1978] RPC 287, 288, the mere failure to use that expression does not conclude the matter. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, whether it can be inferred from their terms and their whole context that they contained an offer in settlement for which the party who made the offer can claim privilege which prevents the acknowledgments from being relied upon for the purposes of the Act. In the present case the context in which the letters were written offers little, if anything, by way of guidance on this issue. The first letter was not written in response to an invitation to negotiate as to what, if anything, was due. It was written in response to an invitation to say how the amount due was to be repaid. So everything, it seems to me, turns on the wording of the letters themselves and the meaning that is to be attached to them.
24. The guiding principle is that parties should be encouraged so far as possible to resolve their dispute without resort to litigation, and that they should not be discouraged by the knowledge that anything that is said in the course of such negotiations may be used to their prejudice in the course of the proceedings: Cutts v Head [1984] Ch 290, 306, per Oliver LJ. In Savings & Investment Bank Ltd v Fincken [2004] 1 WLR 667, 684, para 57 Rix LJ observed that the public interest in encouraging parties to speak frankly to one another in aid of reaching a settlement is very great and ought not to be sacrificed save in truly exceptional and needy circumstances. As to how this rule is to be applied in practice, in Jones v Foxall (1852) 15 Beav 388, 396 Romilly MR deplored attempts to convert offers of compromise into admissions of acts prejudicial to the party making them. In Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436, 2448 Robert Walker LJ said that, while the protection of admission against interest is the most important practical effect of the rule, it would be contrary to the underlying objective of giving protection to the parties to dissect out identifiable admissions and withhold protection from the rest. This approach directs attention to the question whether the writer of the letter was seeking a compromise and, if so, what was the issue between the parties that he was seeking to resolve. If the admission was within the scope of the subject matter of the compromise, it is to be given the benefit of the privilege.
25. The cases that have been decided on this issue in Scotland indicate that the judges there have adopted the same guiding principle as that described by Oliver LJ in Cutts v Head [1984] Ch 290, 306. But they take a more pragmatic approach to the question how it is to be applied in practice. They are more willing to find that admissions in a document which contains an offer to compromise are to be treated as admissible. Offers, suggestions or concessions made in the course of negotiations are, of course, given the benefit of the privilege. But they are distinguished from clear admissions or statements of fact which, although contained in the same communication, did not form part of the offer to compromise. On such admissions or statements, if they can be clearly identified as such, the other party is entitled to rely. Another important difference in the practice which is adopted in Scotland is that professional advisers who wish to take advantage of the without prejudice rule are expected to say so expressly, and invariably do so. Authority is lacking on the question whether the rule can be invoked where the letter in question omits these words. There has been no discussion of the extent of the protection that the rule gives in that situation. The Scottish cases to which your Lordships have been referred must be understood in the light of this background. They are all cases where the standard phrase was used, and they all proceed on the basis that its use is not conclusive. Scrutiny of the communication is permitted to determine the extent of the protection that was being claimed. An admission which was made in plain terms is admissible, if it falls outside the area of the offer to compromise.
26. In Watson-Towers v McPhail, 1986 SLT 617, the pursuers sought summary decree, relying on a letter which had been written on the defenders' behalf offering to settle the claim for payment of goods supplied to them. The offer was said to be made without prejudice. The pursuers had supplied a quantity of steel and aluminium plates to a company which later went into receivership. The letter proposed a sum in settlement of the pursuers' claim, which was based on a reservation of title clause. But attached to it was a schedule which specified the amount of the plates that were held in stock on the date of the offer by the joint receivers of the company. Lord Wylie found that the schedule was not part of the offer to compromise. He said that the reference to the plates in stock as specified in the schedule was simply a statement of fact. It was not a hypothetical admission or a concession for the purpose of securing a settlement. He held that the without prejudice privilege did not attach to it, and that the pursuers were entitled to rely upon it as an admission for the purposes of their motion for summary decree.
27. Daks Simpson Group plc v Kuiper, 1994 SLT 689, was another case in which the pursuers who were seeking summary decree founded on a letter which had been written by the first defender's solicitor expressly without prejudice. The sums in question were amounts of commission which the first defender had obtained in secret from the pursuers' customers. The letter contained a statement that the first defender was prepared to accept that the first four commission payments stated in a draft settlement agreement listing a number of commission payments paid to him were correct. The total of these four payments was the amount for which the pursuer sought summary decree. Lord Sutherland rejected the first defender's argument that the whole contents of the letter were covered by the privilege and granted summary decree for that amount. Among the authorities to which he was referred were Watson-Towers v McPhail, 1986 SLT 617 and Cutts v Head [1984] Ch 290. His attention was also drawn to the Canadian case of Kirschbaum v "Our Voices" Publishing Co [1972] 1 OR 737, where the Court said that the question to be considered is what was the view and intention of the party in making the statement: whether it was to concede a fact hypothetically in order to effect a settlement or to declare a fact really to exist.
28. Lord Sutherland accepted the general principle as described by Oliver LJ in Cutts v Head. He then summarised his approach in these words:
" 'Without prejudice' in my view means, without prejudice to the whole rights and pleas of the party making the statement. If, however, someone makes a clear and unequivocal admission or statement of fact, it is difficult to see what rights or pleas could be attached to such a statement or admission other than perhaps to deny the truth of the admission which was made. I see no objection in principle to a clear admission being used in subsequent proceedings, even though the communication in which it appears is stated to be without prejudice. I would adopt what is said by Lord Wylie in Watson-Towers and the Canadian view expressed in Kirschbaum."
29. The claims in Watson-Towers v McPhail, 1986 SLT 617, and Daks Simpson Group plc v Kuiper, 1994 SLT 689, were both brought within the relevant time limit. So the court was not concerned in those cases with the question which arises here, which is whether the debt has been acknowledged for the purpose of prolonging the limitation period. But that was one of the questions which came before the Inner House in Richardson v Quercus, 1999 SC 278. In that case the pursuer was the owner of a flat on the second and top floors of a building which had been damaged by renovation works carried out by the defenders to the basement and ground floor of the same building. He relied on a letter by the defenders' loss adjusters dated 2 June 1992 which confirmed that they had no objection to the pursuer instructing the necessary remedial works to his property but which stated that it was written "without prejudice to liability". This letter, taken together with previous correspondence, was held to amount to a relevant acknowledgment within the meaning of section 10(1) of the Prescription and Limitation (Scotland) Act 1973 of the subsistence of an obligation to make reparation which would otherwise have been extinguished by the five year negative prescription. That subsection provides that in order to constitute a relevant acknowledgement there must be an unequivocal written admission clearly acknowledging that the obligation still subsists.
30. It was accepted in Richardson v Quercus that the principles set out in Daks Simpson Group provided the appropriate test. The principal issue was whether the letter was of sufficient substance to overcome the without prejudice docquet. Lord Prosser dealt at pp 283H-284C with the question whether the letter of 2 June 1992 had to be looked at for this purpose in isolation, as the defenders contended, or under reference to extraneous facts or prior correspondence:
"It is clear that what was said in Daks was not intended to cover all possible situations, and it appears to me that each situation must be judged upon its own facts. As will appear from what I say in relation to the two principal grounds of appeal, I am satisfied that in considering the issues raised by section 10(1)(a) and (b) it is not appropriate to look at individual letters or individual events in isolation only. If, looking at them in conjunction and taking this letter into account, it appears that there is no clear indication, or no clear acknowledgment by written admission, that the obligation still subsists, then it may well be that along with a conclusion to that effect, one might conclude that the terms of this letter lacked sufficient substance to overcome the words 'without prejudice to liability'. But if overall the substance of this letter, taken with the substance of prior events or writings, could be seen as satisfying the conditions set out in section 10(1), it would in my opinion be quite wrong to have decided a priori that the terms of this letter were of insufficient substance to overcome the docquet. If the terms of this letter, whether alone or with other material, are sufficient to satisfy either of those conditions in section 10(1), then in my opinion they are sufficient to render the docquet ineffectual."
31. The South African case of Kapeller v Rondalia Versekeringskorporasie van Suid-Afrika Bpk 1964 (4) SA 722 (T) to which Lord Mance has drawn our attention seems to me to be entirely consistent with Richardson v Quercus. In Kapeller a clear admission by an insurer of liability in the course of without prejudice negotiations about quantum was sufficient to restart the limitation period. That in a nutshell is exactly what the Court of Session decided in Richardson's case. In the Canadian case of Kirschbaum v "Our Voices" Publishing Co [1972] 1 OR 737 to which Lord Sutherland referred in Daks Simpson Group plc v Kuiper Haines J sitting in the Ontario High Court adopted the same approach. The question in that case was whether discovery of letters written without prejudice should be permitted so that the parties might explore the question whether they contained admissions of fact which could be taken into account at the trial. Answering that question in the affirmative, the judge said at pp 738-739 that contrary to popular belief the proposition that the shibboleth "without prejudice" written on a letter protects it from subsequent use as an admission was not accurate:
"[T]he question to be considered is, what was the view and intention of the party in making the admission; whether it was to concede a fact hypothetically, in order to effect a settlement, or to declare a fact really to exist."
32. In The Law of Evidence in Canada, Sopinka, Lederman and Bryant, 2nd ed (1999), para 14.204 the authors summarise the competing theories discussed in 4 Wigmore, Evidence (Chadbourn rev, 1972), para 1061. They state that the proposition that all admissions in the course of negotiation towards settlement are without prejudice whether those words are used or not and are not admissible in evidence is clearly the one that is accepted in Ontario. But Kirschbaum's case has not been overruled or disapproved, so the proposition to which the authors refer must be read subject to the qualification that is set out in that case. This brief comparative exercise shows that, while there may be room for some difference of view as to the application of that qualification in particular cases, the general approach which is taken to this issue in Scotland is far from unorthodox. It cannot be said to be out of line with that which is taken elsewhere.
33. How then do the letters of 26 September 2001 and 4 October 2001 stand up to examination? Neither of them contained the words "without prejudice", so the issue is whether they are protected by the public policy rule. It seems to me that the first letter does two things. It contains a clear admission that there is a balance of debt that is still outstanding and then there is a request for time to pay. The Court of Appeal agreed with the judge that it was written as part of an attempt
Friday, July 9, 2010
S B L R 2007 Foreign 1
Supplement 2004, paragraph 14.204.1, explaining that the theory "that all admissions in the course of negotiations towards settlement are protected by a privilege based on public policy" is "now universally accepted in Canada", following the British Columbia Court of Appeal decision in Middlekamp v. Fraser Valley Real Estate Board (1992) 96 DLR (4th) 227 (although one can find earlier authority adopting Wigmore's different theory in Kirschbaum v. "Our Voices" Publishing Co. [1971] 1OR 737, to which Lord Sutherland referred in Daks Simpson Group plc v. Kuiper); (b) as regards Australia, Cross on Evidence (Australian Edition) (J. D. Heydon) (2004) paragraphs 25350 and 25375, where the exception is explained as limited to statements of fact that have "no reference at all to the dispute" or are not "reasonably incidental to [the] negotiations"; and Law of Privilege (McNicol) (1992) pages 477-478, submitting that "future courts should be careful not to restrict without prejudice privilege too much" under this test, and concurring with Lord Griffiths' comments concerning Waldridge v. Kennison; and (c) as regards South Africa, The South African Law of Evidence (formerly Hoffmann and Zeffertt, now Zeffertt, Paizes and Skeen) page 617, where the exception is said to be even more narrowly limited to "admissions that are quite unconnected with or irrelevant to the settlement". In Kapeller v. Rondalia Versekeringskorporasie van Suid-Afrika Bpk 1964 (4) SA 722 (T) (mainly reported in Afrikaans, but summarised in Zeffertt, Paizes and Skeen at page 617), Viljoen R was able to distinguish a clear admission by a motor insurer as to liability in respect of a motor accident from the without prejudice negotiations which followed on that basis regarding quantum, and so to treat the admission as restarting the limitation period. I can understand that line of reasoning. But the Scots cases appear on their facts to me to go considerably further. However, I think it preferable to say no more about the scope of any exception, until a case arises where it falls squarely for determination on the facts.
93. The other, more limited half-way possibility, supported by my noble and learned friend Lord Hoffmann, invokes and seeks to build on his observations in Muller v. Linsley and Mortimer at pages 79F-80A to the effect that (with the one possible conventional qualification relating to costs, to which I have referred) the rationale of the without prejudice rule is directed solely to circumstances where a statement made without prejudice is proposed to be used as an admission in relation to the subject-matter of dispute. The possibility involves distinguishing between the use of Mr Rashid's admission as an acknowledgment to avoid any limitation problem and its use as an admission to prove liability on the merits at trial. In Belanger v. Gilbert [1984] 6 W.W.R. 474, 476, (British Columbia Court of Appeal) (cited in Evidence in Canada at paragraph 14.226), one of the three members of the court, Lambert JA, supported this distinction, saying:
"In my opinion it is possible for a letter to be considered as a "without prejudice" letter and inadmissible in evidence in relation to its contents about the flow of settlement negotiations either on liability or quantum, but at the same time for the same letter to be admissible in evidence for the exclusive purpose of s.5 of the Limitation Act. It is not necessary to decide that question on the facts of this case, and I explicitly do not do so."
In support of this distinction, the argument is no doubt that a debtor who makes an unqualified admission in the course of without prejudice negotiations for the compromise of a dispute is, in effect, encouraging the creditor not to commence proceedings, so that, while it would be wrong to treat the admission as prejudicing the debtor on the merits, it would be equally wrong to allow him to take the benefit of time gained in negotiations when it came to a limitation issue. On the other hand, an acknowledgment may, in this country, be made before or after the date when the limitation period would otherwise expire (a date which may itself also be open to argument in some cases), and it may be said that the public policy in allowing parties to negotiate freely would be undermined if, during any negotiations, they had to keep an eye open for the possible impact on limitation of any admissions they were without prejudice prepared to make. The argument that a creditor may in such a context be encouraged not to commence proceedings may also be said to have a certain circularity, on the basis that a creditor engaging in without prejudice negotiations should always keep an eye on the limitation position for the very reason that the negotiations are without prejudice. However, since the suggested distinction between the different effects (on the merits and on limitation) of one and the same admission were not explored in any detail before us, perhaps for good reason, I think it again best to say no more on the point.
94. For the reasons I have given, I agree that this appeal should be allowed.
Appeal allowed.
93. The other, more limited half-way possibility, supported by my noble and learned friend Lord Hoffmann, invokes and seeks to build on his observations in Muller v. Linsley and Mortimer at pages 79F-80A to the effect that (with the one possible conventional qualification relating to costs, to which I have referred) the rationale of the without prejudice rule is directed solely to circumstances where a statement made without prejudice is proposed to be used as an admission in relation to the subject-matter of dispute. The possibility involves distinguishing between the use of Mr Rashid's admission as an acknowledgment to avoid any limitation problem and its use as an admission to prove liability on the merits at trial. In Belanger v. Gilbert [1984] 6 W.W.R. 474, 476, (British Columbia Court of Appeal) (cited in Evidence in Canada at paragraph 14.226), one of the three members of the court, Lambert JA, supported this distinction, saying:
"In my opinion it is possible for a letter to be considered as a "without prejudice" letter and inadmissible in evidence in relation to its contents about the flow of settlement negotiations either on liability or quantum, but at the same time for the same letter to be admissible in evidence for the exclusive purpose of s.5 of the Limitation Act. It is not necessary to decide that question on the facts of this case, and I explicitly do not do so."
In support of this distinction, the argument is no doubt that a debtor who makes an unqualified admission in the course of without prejudice negotiations for the compromise of a dispute is, in effect, encouraging the creditor not to commence proceedings, so that, while it would be wrong to treat the admission as prejudicing the debtor on the merits, it would be equally wrong to allow him to take the benefit of time gained in negotiations when it came to a limitation issue. On the other hand, an acknowledgment may, in this country, be made before or after the date when the limitation period would otherwise expire (a date which may itself also be open to argument in some cases), and it may be said that the public policy in allowing parties to negotiate freely would be undermined if, during any negotiations, they had to keep an eye open for the possible impact on limitation of any admissions they were without prejudice prepared to make. The argument that a creditor may in such a context be encouraged not to commence proceedings may also be said to have a certain circularity, on the basis that a creditor engaging in without prejudice negotiations should always keep an eye on the limitation position for the very reason that the negotiations are without prejudice. However, since the suggested distinction between the different effects (on the merits and on limitation) of one and the same admission were not explored in any detail before us, perhaps for good reason, I think it again best to say no more on the point.
94. For the reasons I have given, I agree that this appeal should be allowed.
Appeal allowed.
S B L R 2007 FSC
[Federal Shariat Court]
(Appellant Jurisdiction)
Present: Haziqul Khairi, CJ.
Habib-ur-Rahman---Appellant.
versus
The State---Respondent.
Criminal Appeal No. 17-K of 2006 Decided on 16th March, 2006.
A) Pakistan Penal Code, 1860 Section 392, 337- F(i) r/w section 34---Appeal, conviction maintained---appellants council contended that through out the case none of the prosecution witness was cross examined by the council for the appellant and deprive the appellant of his night to cross examine them---observed that the examination in chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 but the appellant council was not available for their cross-examination nor the appellant availed the opportunity to cross-examine persecution witnesses.
[P -]A.
B) A accused Person cannot be compelled to defend himself---if an accused person refuses to cross examine the prosecution witness or does not avail the opportunity to defend himself then trial court cannot compel him to put up his defance but is obliged to give maximum latitude to him to defend himself to avoid the injustice.
[P -]B.
Ms. Uzma Khan, Advocate for the Appellant.
Mr. Arshad H. Lodhi, Assistant Advocate General Sindh.
Date of hearing: 16th August, 2006.
JUDGMENT
HAZIQUL KHAIRI CJ.- The appellant being aggrieved and dissatisfied with the judgment dated 17.03.2006, passed by Mrs. Sher Bano Karim Vth Additional Sessions Judge Karachi South in S.C. No. 262/1997 arising out FIR No.56/1997 under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 has preferred this appeal under section 24(10 2nd Proviso of Hudood Ordinance, 1979 read with section 410 of Criminal Procedure Code whereby the learned judge was pleased to convict the appellant under section 392 & 337-F(i) read with section 34, PPC and awarded him sentence for seven (07) years and one year respectively and to pay Damman of Rs.25.000/= or in default whereof to undergo R.I. for six (06) months more. Both the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 23.2.1997, the complainant namely Naseer Ahmed reported at Kalakot that while he was present in his house at Flat No.12, 5th Floor, Noor Apartment, Muhammad Ali Alvi Road, Karachi somebody knocked at the door of his house and stated that a letter form one Naseer Ahmed (complainant) has come, whereupon the complainant opened the door and two persons namely Zahoor Ahmed son of Ghulam Mustafa entered into his house armed with weapons and directed him to take out whatever there was in the house. The complainant handed over gold moments to them and also cash amount and Rado Watch. However the complainant who was an ex-Army Officer in Oman tried to catch hold the appellant Habib-ur-Rahman who fired at him whereupon he got injured. The accused ran through the stairs of the house. When the complainant came down from the house a police van reached there and the police followed them and caught hold of the said two accused. Their companion standing on the ground floor fled away. The police recovered loaded pistol from the accused Zahoor Ahmed and another pistol and Rado Watch fomr the appellant Habib-ur-Rahman. The remaining looted property was taken away by their co-accused Abul Hasan who has been absconding since then, challaned under section 512, Cr.P.C. and declared proclaimed offender under section 87 and 88, Cr.P.C. After the grant of bail to Zahoor Ahmed another accused, he was also absconded and their case was kept on dormant file till that are arrested and produced before the learned Additional Sessions Judge Karachi South.
3. The prosecution examined complainant Naseer Ahmed who in his deposition reiterated what he had stated in FIR. He produced FIR, Memo of Arrest and Recovery, Memo of Site Inspection and Letter of Treatment etc. He also identified both the two accused persons in Court and also the Rado Watch.
4. PW-2 Kamran and PW-3 Sadiq also corroborated as to how the police mobile reached the building and how the complainant informed them of the incident and how the accused persons were apprehended and in their presence the TT pistols and Rado Watch were recovered.
5. PW-4 H.C. Abdul Razaq of P.S. Kalakot deposed that he was on mobile duty along with H.C. Akbar Baloch when he heard shouts of the people and on reaching Muhammad Ali Alvi Road at 10.15 a.m. he saw the accused running. The people apprehended them and handed over to hem. H.C. Akbar Baloch conducted personal search of the accused and secured 32 bore pistol from Zahoor Ahmed and 30 bore pistol from Habib-ur-Rahman so also one Rado wrist watch and two bullets were recovered.
6. PW-5 Inspector Muhammad Ilyas the investigating officer also deposed and stated that the complainant came to the police station along with apprehender accused persons and the case property. He identified the appellant and he pistol which was brought in Court.
7. PW-7 Muhammad Hanif has supported the prosecution story to the extent that the injury was sustained by the complainant and produced and proved them medical summary at Ex.19.
8. It is pertinent to note that complainant (PW-1); Kamran (PW-2) and Muhammad Sa (PW-3) were examined on 13.11.1999. PW-4 HC Abdul Razaq was examined on 15.12.1999. PW-5 Inspector Muhammad Illays was examined on 3.7.2003 and then recalled and re-affirmed on 27.10.2004. PW-7 MLO Dr. Muhammad Hanif Shaikh was examined on 17.1.2006, but throughout on all these dates the appellant’s advocate remained absent to cross-examine the prosecution witness although ample opportunity was given to the appellant.
9. The main thrust of arguments of Ms. Uzma Khan learned advocate for the appellant is that the Trial Court has filed to appreciate that none of the prosecution witnesses was cross-examined by the counsel for the appellant and the Learned Trial Court had shown unnecessary haste to deprive the appellant of his right to cross-examine them and proceeded further in disposing of the case. It will be advantageous to reproduce here section 540, Cr.P.C. as under:
“540. Power to summon material witness or examine person present. Any Court may at any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
10. In order to demonstrate the importance of cross-examination in a Criminal Trial the learned counsel for the appellant has placed reliance on Nusrat vs. The State (1997 MLD 1358) Federal Shariat Court, in which was held:
“Right to cross-examine is not empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. In the circumstances, the appellant should not be penalized for absence of his Advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned Single Judge of the Sindh High Court in the case of Altaf Hussain Shamim v. State PLD 1992 Karachi 91 in which judgment reliance has been placed in several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case the prosecution witnesses should have been recalled in the circumstances of the case.”
11. In this case the application moved by the appellant for cross-examination of the witness was dismissed by the Trial Court on the ground that the evidence had already been completed and neither the advocate for the accused nor the accused cross-examined the prosecution witness. In Abdul Qadir vs The State (PLD 1991 Karachi 353) the Special Judge (Customs & Taxation) Karachi refused to grant the applicant’s application under section 540, Cr.P.C. for recalling the witnesses for purpose of cross-examination as his advocate was busy before a Division Bench of the High Court of Sindh on the date of examination of prosecution witnesses and was not available to cross-examine them. In Afzal Haider vs The State (1992 MLD 421) a Division Bench of High Court the appellant/accused wanted to cross-examine himself on oath to disprove the charge, but no opportunity was provide to him, resultantly the conviction was set aside. As regards the interpretation or and implications involved under section 540, Cr.P.C. the Criminal Procedure Code, the Supreme Court of Pakistan Muhammad Azam vs Muhammad Iqbal (PLD 1984 Supreme Court 95) at page 125 has held:
“One more aspect needs to be clarified regarding the exercise of power under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts one discretionary and the other obligatory; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of Section 540, Cr.P.C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps; namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power them should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.”
12. The facts of this case are very much different and distinguishable form the cases cited by the learned counsel for the appellant and other cases referred to above, inasmuch as, the appellant had moved an application on 21.08.2000 under section 540, Cr.P.C. for summoning the prosecution witnesses which was allowed, in response to which PW-4 H.C. Abdul Razaq appeared in the Court but again the accused failed to avail the opportunity to cross-examine him. As regards PW-1, 2 & 3, who were also related to one another it was reported that they were abroad and not available in Pakistan and one Khuda Bux father-in-law of PW-1 deposed in the Court to this effect but the appellant or his counsel failed to cross-examine him.
13. What is pertinent to note is that examination-in-chief of the prosecution witnesses had commenced form 13.11.1999 and continued till 17.01.2006 on as many as 6 different dates but at no point of time the appellant’s counsel was available for their cross-examination nor the appellant availed the opportunity to cross-examine prosecution witnesses.
14. A Trial Judge cannot compel an accused person to put up his defence but is obliged to give maximum latitude to him to defend himself so that injustice may not be done to him. It is also incumbent on an accused person to put up his defence and he may leave it to the prosecution to prove their case against him and to let the Court decided his fate or have mercy on him. Criminal matters must be taken very seriously by the Court as they pertain to life, liberty and honour etc of a citizen but an accused cannot be allowed to abuse the due process of law. Learned counsel for the appellant concedes that the appellant remained on bail for about 2-1/2 years during this period. He was examined by the Trial Court under section 342, Cr.P.C. on 25.1.2006 but he refused to examine himself on oath to disprove the charge and also did not want to produce any defence witness. In Abdul Malilk vs The State (PLD 1985 F.S.C. 293) a Division Bench of this Court held as under:
“The duty of the Court ends as soon as the accused is asked to produce evidence in defence if any. In spite of the opportunity having been given, if the accused does not choose to exercise his right under section 340 (2) as amended by Ordinance XII of 1985, no irregularity shall be deemed to have committed by the Court”.
15. Thus full opportunity was given to the appellant to adduce his deference and cross-examine prosecution witnesses. It is not the case of the appellant that on account of his poverty, he was unable to engage a counsel in which case a State Counsel could have been provided to him.
16. However, keeping in view the facts and circumstances of the case and the fact that this was the first offence committed by the appellant I reduce the sentence of the appellant from seven (07) years to five (05) year under section 392, PPC and to pay Daman of Rs.25,000/- or in default whereof to undergo R.I. for six (06) months. So far conviction under section 337-F(i) read with section 34, PPC is concerned I shall maintain the same. Both the sentences to run concurrently with benefit of section 382-B, Cr.P.C.
(Appellant Jurisdiction)
Present: Haziqul Khairi, CJ.
Habib-ur-Rahman---Appellant.
versus
The State---Respondent.
Criminal Appeal No. 17-K of 2006 Decided on 16th March, 2006.
A) Pakistan Penal Code, 1860 Section 392, 337- F(i) r/w section 34---Appeal, conviction maintained---appellants council contended that through out the case none of the prosecution witness was cross examined by the council for the appellant and deprive the appellant of his night to cross examine them---observed that the examination in chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 but the appellant council was not available for their cross-examination nor the appellant availed the opportunity to cross-examine persecution witnesses.
[P -]A.
B) A accused Person cannot be compelled to defend himself---if an accused person refuses to cross examine the prosecution witness or does not avail the opportunity to defend himself then trial court cannot compel him to put up his defance but is obliged to give maximum latitude to him to defend himself to avoid the injustice.
[P -]B.
Ms. Uzma Khan, Advocate for the Appellant.
Mr. Arshad H. Lodhi, Assistant Advocate General Sindh.
Date of hearing: 16th August, 2006.
JUDGMENT
HAZIQUL KHAIRI CJ.- The appellant being aggrieved and dissatisfied with the judgment dated 17.03.2006, passed by Mrs. Sher Bano Karim Vth Additional Sessions Judge Karachi South in S.C. No. 262/1997 arising out FIR No.56/1997 under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 has preferred this appeal under section 24(10 2nd Proviso of Hudood Ordinance, 1979 read with section 410 of Criminal Procedure Code whereby the learned judge was pleased to convict the appellant under section 392 & 337-F(i) read with section 34, PPC and awarded him sentence for seven (07) years and one year respectively and to pay Damman of Rs.25.000/= or in default whereof to undergo R.I. for six (06) months more. Both the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 23.2.1997, the complainant namely Naseer Ahmed reported at Kalakot that while he was present in his house at Flat No.12, 5th Floor, Noor Apartment, Muhammad Ali Alvi Road, Karachi somebody knocked at the door of his house and stated that a letter form one Naseer Ahmed (complainant) has come, whereupon the complainant opened the door and two persons namely Zahoor Ahmed son of Ghulam Mustafa entered into his house armed with weapons and directed him to take out whatever there was in the house. The complainant handed over gold moments to them and also cash amount and Rado Watch. However the complainant who was an ex-Army Officer in Oman tried to catch hold the appellant Habib-ur-Rahman who fired at him whereupon he got injured. The accused ran through the stairs of the house. When the complainant came down from the house a police van reached there and the police followed them and caught hold of the said two accused. Their companion standing on the ground floor fled away. The police recovered loaded pistol from the accused Zahoor Ahmed and another pistol and Rado Watch fomr the appellant Habib-ur-Rahman. The remaining looted property was taken away by their co-accused Abul Hasan who has been absconding since then, challaned under section 512, Cr.P.C. and declared proclaimed offender under section 87 and 88, Cr.P.C. After the grant of bail to Zahoor Ahmed another accused, he was also absconded and their case was kept on dormant file till that are arrested and produced before the learned Additional Sessions Judge Karachi South.
3. The prosecution examined complainant Naseer Ahmed who in his deposition reiterated what he had stated in FIR. He produced FIR, Memo of Arrest and Recovery, Memo of Site Inspection and Letter of Treatment etc. He also identified both the two accused persons in Court and also the Rado Watch.
4. PW-2 Kamran and PW-3 Sadiq also corroborated as to how the police mobile reached the building and how the complainant informed them of the incident and how the accused persons were apprehended and in their presence the TT pistols and Rado Watch were recovered.
5. PW-4 H.C. Abdul Razaq of P.S. Kalakot deposed that he was on mobile duty along with H.C. Akbar Baloch when he heard shouts of the people and on reaching Muhammad Ali Alvi Road at 10.15 a.m. he saw the accused running. The people apprehended them and handed over to hem. H.C. Akbar Baloch conducted personal search of the accused and secured 32 bore pistol from Zahoor Ahmed and 30 bore pistol from Habib-ur-Rahman so also one Rado wrist watch and two bullets were recovered.
6. PW-5 Inspector Muhammad Ilyas the investigating officer also deposed and stated that the complainant came to the police station along with apprehender accused persons and the case property. He identified the appellant and he pistol which was brought in Court.
7. PW-7 Muhammad Hanif has supported the prosecution story to the extent that the injury was sustained by the complainant and produced and proved them medical summary at Ex.19.
8. It is pertinent to note that complainant (PW-1); Kamran (PW-2) and Muhammad Sa (PW-3) were examined on 13.11.1999. PW-4 HC Abdul Razaq was examined on 15.12.1999. PW-5 Inspector Muhammad Illays was examined on 3.7.2003 and then recalled and re-affirmed on 27.10.2004. PW-7 MLO Dr. Muhammad Hanif Shaikh was examined on 17.1.2006, but throughout on all these dates the appellant’s advocate remained absent to cross-examine the prosecution witness although ample opportunity was given to the appellant.
9. The main thrust of arguments of Ms. Uzma Khan learned advocate for the appellant is that the Trial Court has filed to appreciate that none of the prosecution witnesses was cross-examined by the counsel for the appellant and the Learned Trial Court had shown unnecessary haste to deprive the appellant of his right to cross-examine them and proceeded further in disposing of the case. It will be advantageous to reproduce here section 540, Cr.P.C. as under:
“540. Power to summon material witness or examine person present. Any Court may at any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
10. In order to demonstrate the importance of cross-examination in a Criminal Trial the learned counsel for the appellant has placed reliance on Nusrat vs. The State (1997 MLD 1358) Federal Shariat Court, in which was held:
“Right to cross-examine is not empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. In the circumstances, the appellant should not be penalized for absence of his Advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned Single Judge of the Sindh High Court in the case of Altaf Hussain Shamim v. State PLD 1992 Karachi 91 in which judgment reliance has been placed in several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case the prosecution witnesses should have been recalled in the circumstances of the case.”
11. In this case the application moved by the appellant for cross-examination of the witness was dismissed by the Trial Court on the ground that the evidence had already been completed and neither the advocate for the accused nor the accused cross-examined the prosecution witness. In Abdul Qadir vs The State (PLD 1991 Karachi 353) the Special Judge (Customs & Taxation) Karachi refused to grant the applicant’s application under section 540, Cr.P.C. for recalling the witnesses for purpose of cross-examination as his advocate was busy before a Division Bench of the High Court of Sindh on the date of examination of prosecution witnesses and was not available to cross-examine them. In Afzal Haider vs The State (1992 MLD 421) a Division Bench of High Court the appellant/accused wanted to cross-examine himself on oath to disprove the charge, but no opportunity was provide to him, resultantly the conviction was set aside. As regards the interpretation or and implications involved under section 540, Cr.P.C. the Criminal Procedure Code, the Supreme Court of Pakistan Muhammad Azam vs Muhammad Iqbal (PLD 1984 Supreme Court 95) at page 125 has held:
“One more aspect needs to be clarified regarding the exercise of power under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts one discretionary and the other obligatory; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of Section 540, Cr.P.C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps; namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power them should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.”
12. The facts of this case are very much different and distinguishable form the cases cited by the learned counsel for the appellant and other cases referred to above, inasmuch as, the appellant had moved an application on 21.08.2000 under section 540, Cr.P.C. for summoning the prosecution witnesses which was allowed, in response to which PW-4 H.C. Abdul Razaq appeared in the Court but again the accused failed to avail the opportunity to cross-examine him. As regards PW-1, 2 & 3, who were also related to one another it was reported that they were abroad and not available in Pakistan and one Khuda Bux father-in-law of PW-1 deposed in the Court to this effect but the appellant or his counsel failed to cross-examine him.
13. What is pertinent to note is that examination-in-chief of the prosecution witnesses had commenced form 13.11.1999 and continued till 17.01.2006 on as many as 6 different dates but at no point of time the appellant’s counsel was available for their cross-examination nor the appellant availed the opportunity to cross-examine prosecution witnesses.
14. A Trial Judge cannot compel an accused person to put up his defence but is obliged to give maximum latitude to him to defend himself so that injustice may not be done to him. It is also incumbent on an accused person to put up his defence and he may leave it to the prosecution to prove their case against him and to let the Court decided his fate or have mercy on him. Criminal matters must be taken very seriously by the Court as they pertain to life, liberty and honour etc of a citizen but an accused cannot be allowed to abuse the due process of law. Learned counsel for the appellant concedes that the appellant remained on bail for about 2-1/2 years during this period. He was examined by the Trial Court under section 342, Cr.P.C. on 25.1.2006 but he refused to examine himself on oath to disprove the charge and also did not want to produce any defence witness. In Abdul Malilk vs The State (PLD 1985 F.S.C. 293) a Division Bench of this Court held as under:
“The duty of the Court ends as soon as the accused is asked to produce evidence in defence if any. In spite of the opportunity having been given, if the accused does not choose to exercise his right under section 340 (2) as amended by Ordinance XII of 1985, no irregularity shall be deemed to have committed by the Court”.
15. Thus full opportunity was given to the appellant to adduce his deference and cross-examine prosecution witnesses. It is not the case of the appellant that on account of his poverty, he was unable to engage a counsel in which case a State Counsel could have been provided to him.
16. However, keeping in view the facts and circumstances of the case and the fact that this was the first offence committed by the appellant I reduce the sentence of the appellant from seven (07) years to five (05) year under section 392, PPC and to pay Daman of Rs.25,000/- or in default whereof to undergo R.I. for six (06) months. So far conviction under section 337-F(i) read with section 34, PPC is concerned I shall maintain the same. Both the sentences to run concurrently with benefit of section 382-B, Cr.P.C.
S B L R 2007 Sindh
[Federal Shariat Court]
(Appellant jurisdiction)
Present: Haziqul Khairi, & Dr. Fida Muhammad Khan, Ch.
Ali Ahmed & another---Appellant
versus
The State---Respondent
Criminal Appeal No.274/4 of 2005, decided on 6th October, 2006.
A) Criminal Procedure Code, 1998 Section---342---Joint Examination, effect of---eight accused were recorded their statement jointly where they denied the allegations against them---held that session court had acted with gross illegality, Judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C. which requires examination of an accused person separately and independent.[P -]A.
B) The offence of Zina (Enforcement of Hudood) Ordinance, 1979---Section---11---10(3)---Conviction, set aside---observed that court below committed gross illegality---there are number of loopholes in the prosecution case---medical report shows that victims were habitual to sexual intercourse---held in these circumstances conviction can not be maintained---conviction set aside---appeal allowed.[P -]B.
Mr. C.M. Sarwar, Advocate for the Appellants.
Mr. Muhammad Shaair Janjua, Advocate for the State.
Date of Hearing: 26th September 2006.
JUDGMENT
HAZIQUL KHAIRI, CHIEF JUSTICE.- This appeal is directed the judgment dated 30.7.2005, passed by the learned Additional Session Judge, Burewala whereby appellants Ali Ahmed and Ali Sher, sons of Lal Din were convicted under section 11 of the Official of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as “the said Ordinance”) and sentenced to undergo imprisonment for life R.I. each Both the appellant were also convicted under section 10(3) of “ the said Ordinance” and sentenced to undergo ten years R.I.. each. Both the appellant were also extended benefit under section 382-B Cr.P.C.
2. Briefly, facts of the case are that on 26.5.2001 complainant sajiad Hussain Shah lodged written complaint, Ex.PA, at Police Station Gago and in consequence whereof FIR No.2002001, Exh.PA1, was registered on 6.7.2001 states as under:-
“I am Clerk Advocate My father is residing in Chak No.36/EB since long and he is a labourer. In the intervening night 23/24/2001, accused persons namely Ghulam Rasul, Muhammad Aslam alias Gogi, Muhammad Rafique, Ali Ahmed Sher Muhammad with each other, at about 10.00 came to village Boota who are relatives to each other in connivance/of my father. At that time Muhammad Rafique was armed with rifle G-3, Ali Ahmed with Kalashinkov, Ali Sher Muhammad Boota, Muhammad Aslam alias Gogi alongwith two other persons and Ghulam Rasul were armed with rifle 222-bore. Ali sher and Muhammad Boota were armed with gunes double barrel. In the same night, bulb of mosque was broken and at about 2 ½ a.m. (night) after trespassing the house of him, entered in the house and they forcibly abducted my two daughters namely Mst. Saima and Mst. Sumera. When I came back from Lahore then I stated their search. On 4.5.2001, my daughters came to me who narrated about the occurrence and told the aforementioned accused persons. I moved a writ petition No.4175 before Hon’ble High court, wherein it was directed that the SSP would make the inquiry. SSP made the inquiry on my application on 21.5.2001. I am a respectable citizen. My daughters are virgins and no body has seen them till today, Accused be dealt with in accordance with law”.
3. After completion of investigation challan was submitted in the Court where after against all the accused persons was framed on 8.1.2003 to which they pleaded not guilty and claimed trial.
4. The prosecution examined witnesses. PW.1 Dr. Atta Muhammad Zafar conducted potency test of appellant Ali Ahmed and found him fit to perform intercourse. PW.2 Muhammad Rafie, Head Constable No.109 on receipt of two sealed parcels from S.H.O Kept in the Malkhana and on 27.11.2001 handed over the same to Parvez Akhtar, Constable NO.792 for onward transmission to the Office of the Chemical Examiner, Multan PW.3 Pervez Akhtar, Constable No.792 delivered two sealed parcels in the Office of the Chemical Examiner , Multan. Pw.4 Mst. Sumera Bibi reiterated contents of her father’s complaint, Ex.PA. She further deposed that the accused persons persons forcibly boarded them in a car in which appellant Ali Sher and Ali Ahmed, were boarded with them They took to Misri Shah, Lahore where they confined them in a room all and the accused persons turn-by-turn committed zina-bil-jabr with them. They were confined for eight days and they were subjected to zina bil-jabr during night whereas they (victims) were being intoxicated during day time so that they may sleep the whold day. She stated that one day the door was opened, they fled away from Lahore and came to their parents house at Chak No.361/EB. PW.5 Mst. Saima Bibi supported her sister’s deposition. PW.6 Sajjad Hussain Shah, complainant reiterated the contents the contents of his written complaint, Ex.PA. PW.7 Dr. Afia Naz conducted medical examination of Mst. Sumera and Mst. Saima. According to her opinion both (victims) were habitual to sexual intercourse. PW.8 Ghulam Mustafa, Inspector/SHO, I.O. of the case stated that on 6.7.2001 he received report from S.P, Vehari alongwith the statement of sajjad Hussain, complainant. According to inquiry report, only Ali Ahmed, appellant was found guilty for the abduction of Mst. Sumera and Saima. He recorded the formal FIR, Ex.PA/1 and inspected the place of occurrence and prepared rough site plan, Ex.PJ. He recorded statement of PWs. under section 161 Cr.P.C. and on 22.7.2001 arrested appellant Ali Ahmed. The prosecution also examined CW.1 Akbar Ali, DSP who deposed that on 14.11.2001, S.P, Vehari entrusted investigation of this case to him. After his investigation, he opined Ali Ahmed, appellant guilty and other accused innocent.
5. On 29.6.2005, statement of accused persons were recorded under section 342 Cr.P.C wherein they denied the allegation leviled against them. Before I take up their statement it would be advantageous to refer to its significance under section 342 Cr.P.C. The Supreme Court of Pakistan in the case of S.A.K. Rehmani Vs. The State reported in 2005 SCMR 364 has observed:-
“There is no canil with the proposition that “Section 342 Cr.P.C. can be bifurcated into parts. Subsection (1) of Section 342 Cr.P.C. Confers discretion to the Court while its second part is mandatory that the section revolves around the maxim audi alteram partem i.e. that no one should be condemned unheard.” AIR 1940 Nag. 283, 41 Cri.LJour 585, AIR 1957 Mays.9 ILR 1956 Mys. 114, 1957 Cri.LJour 208, AIR 1936 Pesh. 21, AIR 1937 PEsh. 20, 38 Cri. Jour 387, AIR 1935 Cal. 605, AIR 1936 Oudh 16,36 Cri.L Jour 1303, AIR 1934 Oudh 457. “The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is part of a system for enabling the Court to discover the truth and it constantly happens that the accused’s explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no exantion or a false or unsatisfactory explanation is given”.
6. Now all the eight accused persons namely Ali Ahmed (appellant), Ali Sher (appellant), Muhammad Suleman, Muhammad Riaz, Muhammad Rafique, Muhammad Boota, Muhammad Aslam and Ghulam Rasul in reply to questions asked by the learned Session Judge came out with exactly the same reply alongwith the contentions raised by them against the prosecution. In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provision of section 342 Cr.P.C, which requies examination of an accused person separately and independently. I am fortified in my view by the case of Muhammad Aslam Vs. The Crown reported in 1969 P.Cr.L.J. 1178 wherein it was held that “if there are more than one accused each and every accused shall be examined separately. Short cut procedure would amount to flagrant violation of the provision of law”. In the case of Afzal khan and 4 others Vs. The State reported in 1997 P.Cr.L.J. 1416 “Joint examination of several accused under section 342 Cr.P.C. is allegal and vitiates the whole trial .” In the case of A.M. Nur Main Vs. Mokhlesur Rehman Almansuri reported in PLD 1967 Dacca 503 it was held that a written statement by the accused cannot anticipate the requirement of the Court, and therefore, cannot be deemed to be a substitute for examination under section 342 Cr.P.C.
7. We have heard Mr. C.M. Sarwar, learned counsel for the appellant, Mr. Muhammad Sharif Janua, learned Counsel for the State and have also perused record minutil with their assistance.
8. Learned counsel for the appellant brother to our (sick) a number of grounds on which conviction and sentence the appellant may be set aside. It was urged by him that there as delay of three months in lodging F.I.R., for which there is explanation on record. According to CW.1 Akbar Ali, DSP Headquaters, Lodhran he was entrusted the investigation of the case and he found only Ali Ahmed, appellant, guilty and other innocent. In cross-examination he stated that Mst. Sumera Bibihad illicit relations with Movulvi Ghulam Farid, the Imam of the Mosque of the village. There was no abduction as alleged in F.I.R. Both Mst. Sumera and Mst. Samina went to Lahore at own with Ali Ahmed appellant. The matter was reported to Punchayat’. Its members Muhammad Akram, an Ex. Counciler and Muhammad Riaz Mohl took Mst. Sumera from and dropped her to Chak No. 361/EB and later or handed over to her grand-father Babar Shah. Neither of the alleged abductees ever reached Chak No.361/EB at their own and ever visted Pakpattan. It also came to his Knowledge that the grand-father of the girls Babar Hussain Shah refused to register the case against any person because he believed that his grand-daughters were at fault. Accorfing to PW.7 Dr. Afia Alam, WHO, who conducted medical examination of Mst.Sumera Bibi and Mst. Samina in her report had stated that there were no mark of violence or injustice on their external examination. There were no strains on vulva, their hymens were torn and deald and their vagina admitted two fingers easily. The swabs were stained with semen. They were habitual to sexual intercourse. It was stated by the leaned counsel for the appellant that swabs were sent to Chemical Examiner after six months, which could only remain intact for 17 days only. Neither the grand-father nor ‘Khala’ of the alleged victims nor independent witnesses were produced by prosecution. Except Ali Ahmed, appellant all the others seven accused were seclared innocent by the police.
9. Thus gross illegality was committed by the learned trial court while proceeding under section 342 Cr.P.C. There are a number of loopholes in the prosecution case as well which leave us with no option but to set asid the conviction passed and sentences given to the appellant by the learned Additional Sessions Judge, Burewala. Resultantly the appeal is accepted with the direction to jail authorities to forthwith release both the appellant, namely Ali Sher and Ali Ahmed unless they are required in same others criminal case.
(Appellant jurisdiction)
Present: Haziqul Khairi, & Dr. Fida Muhammad Khan, Ch.
Ali Ahmed & another---Appellant
versus
The State---Respondent
Criminal Appeal No.274/4 of 2005, decided on 6th October, 2006.
A) Criminal Procedure Code, 1998 Section---342---Joint Examination, effect of---eight accused were recorded their statement jointly where they denied the allegations against them---held that session court had acted with gross illegality, Judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C. which requires examination of an accused person separately and independent.[P -]A.
B) The offence of Zina (Enforcement of Hudood) Ordinance, 1979---Section---11---10(3)---Conviction, set aside---observed that court below committed gross illegality---there are number of loopholes in the prosecution case---medical report shows that victims were habitual to sexual intercourse---held in these circumstances conviction can not be maintained---conviction set aside---appeal allowed.[P -]B.
Mr. C.M. Sarwar, Advocate for the Appellants.
Mr. Muhammad Shaair Janjua, Advocate for the State.
Date of Hearing: 26th September 2006.
JUDGMENT
HAZIQUL KHAIRI, CHIEF JUSTICE.- This appeal is directed the judgment dated 30.7.2005, passed by the learned Additional Session Judge, Burewala whereby appellants Ali Ahmed and Ali Sher, sons of Lal Din were convicted under section 11 of the Official of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as “the said Ordinance”) and sentenced to undergo imprisonment for life R.I. each Both the appellant were also convicted under section 10(3) of “ the said Ordinance” and sentenced to undergo ten years R.I.. each. Both the appellant were also extended benefit under section 382-B Cr.P.C.
2. Briefly, facts of the case are that on 26.5.2001 complainant sajiad Hussain Shah lodged written complaint, Ex.PA, at Police Station Gago and in consequence whereof FIR No.2002001, Exh.PA1, was registered on 6.7.2001 states as under:-
“I am Clerk Advocate My father is residing in Chak No.36/EB since long and he is a labourer. In the intervening night 23/24/2001, accused persons namely Ghulam Rasul, Muhammad Aslam alias Gogi, Muhammad Rafique, Ali Ahmed Sher Muhammad with each other, at about 10.00 came to village Boota who are relatives to each other in connivance/of my father. At that time Muhammad Rafique was armed with rifle G-3, Ali Ahmed with Kalashinkov, Ali Sher Muhammad Boota, Muhammad Aslam alias Gogi alongwith two other persons and Ghulam Rasul were armed with rifle 222-bore. Ali sher and Muhammad Boota were armed with gunes double barrel. In the same night, bulb of mosque was broken and at about 2 ½ a.m. (night) after trespassing the house of him, entered in the house and they forcibly abducted my two daughters namely Mst. Saima and Mst. Sumera. When I came back from Lahore then I stated their search. On 4.5.2001, my daughters came to me who narrated about the occurrence and told the aforementioned accused persons. I moved a writ petition No.4175 before Hon’ble High court, wherein it was directed that the SSP would make the inquiry. SSP made the inquiry on my application on 21.5.2001. I am a respectable citizen. My daughters are virgins and no body has seen them till today, Accused be dealt with in accordance with law”.
3. After completion of investigation challan was submitted in the Court where after against all the accused persons was framed on 8.1.2003 to which they pleaded not guilty and claimed trial.
4. The prosecution examined witnesses. PW.1 Dr. Atta Muhammad Zafar conducted potency test of appellant Ali Ahmed and found him fit to perform intercourse. PW.2 Muhammad Rafie, Head Constable No.109 on receipt of two sealed parcels from S.H.O Kept in the Malkhana and on 27.11.2001 handed over the same to Parvez Akhtar, Constable NO.792 for onward transmission to the Office of the Chemical Examiner, Multan PW.3 Pervez Akhtar, Constable No.792 delivered two sealed parcels in the Office of the Chemical Examiner , Multan. Pw.4 Mst. Sumera Bibi reiterated contents of her father’s complaint, Ex.PA. She further deposed that the accused persons persons forcibly boarded them in a car in which appellant Ali Sher and Ali Ahmed, were boarded with them They took to Misri Shah, Lahore where they confined them in a room all and the accused persons turn-by-turn committed zina-bil-jabr with them. They were confined for eight days and they were subjected to zina bil-jabr during night whereas they (victims) were being intoxicated during day time so that they may sleep the whold day. She stated that one day the door was opened, they fled away from Lahore and came to their parents house at Chak No.361/EB. PW.5 Mst. Saima Bibi supported her sister’s deposition. PW.6 Sajjad Hussain Shah, complainant reiterated the contents the contents of his written complaint, Ex.PA. PW.7 Dr. Afia Naz conducted medical examination of Mst. Sumera and Mst. Saima. According to her opinion both (victims) were habitual to sexual intercourse. PW.8 Ghulam Mustafa, Inspector/SHO, I.O. of the case stated that on 6.7.2001 he received report from S.P, Vehari alongwith the statement of sajjad Hussain, complainant. According to inquiry report, only Ali Ahmed, appellant was found guilty for the abduction of Mst. Sumera and Saima. He recorded the formal FIR, Ex.PA/1 and inspected the place of occurrence and prepared rough site plan, Ex.PJ. He recorded statement of PWs. under section 161 Cr.P.C. and on 22.7.2001 arrested appellant Ali Ahmed. The prosecution also examined CW.1 Akbar Ali, DSP who deposed that on 14.11.2001, S.P, Vehari entrusted investigation of this case to him. After his investigation, he opined Ali Ahmed, appellant guilty and other accused innocent.
5. On 29.6.2005, statement of accused persons were recorded under section 342 Cr.P.C wherein they denied the allegation leviled against them. Before I take up their statement it would be advantageous to refer to its significance under section 342 Cr.P.C. The Supreme Court of Pakistan in the case of S.A.K. Rehmani Vs. The State reported in 2005 SCMR 364 has observed:-
“There is no canil with the proposition that “Section 342 Cr.P.C. can be bifurcated into parts. Subsection (1) of Section 342 Cr.P.C. Confers discretion to the Court while its second part is mandatory that the section revolves around the maxim audi alteram partem i.e. that no one should be condemned unheard.” AIR 1940 Nag. 283, 41 Cri.LJour 585, AIR 1957 Mays.9 ILR 1956 Mys. 114, 1957 Cri.LJour 208, AIR 1936 Pesh. 21, AIR 1937 PEsh. 20, 38 Cri. Jour 387, AIR 1935 Cal. 605, AIR 1936 Oudh 16,36 Cri.L Jour 1303, AIR 1934 Oudh 457. “The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is part of a system for enabling the Court to discover the truth and it constantly happens that the accused’s explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no exantion or a false or unsatisfactory explanation is given”.
6. Now all the eight accused persons namely Ali Ahmed (appellant), Ali Sher (appellant), Muhammad Suleman, Muhammad Riaz, Muhammad Rafique, Muhammad Boota, Muhammad Aslam and Ghulam Rasul in reply to questions asked by the learned Session Judge came out with exactly the same reply alongwith the contentions raised by them against the prosecution. In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provision of section 342 Cr.P.C, which requies examination of an accused person separately and independently. I am fortified in my view by the case of Muhammad Aslam Vs. The Crown reported in 1969 P.Cr.L.J. 1178 wherein it was held that “if there are more than one accused each and every accused shall be examined separately. Short cut procedure would amount to flagrant violation of the provision of law”. In the case of Afzal khan and 4 others Vs. The State reported in 1997 P.Cr.L.J. 1416 “Joint examination of several accused under section 342 Cr.P.C. is allegal and vitiates the whole trial .” In the case of A.M. Nur Main Vs. Mokhlesur Rehman Almansuri reported in PLD 1967 Dacca 503 it was held that a written statement by the accused cannot anticipate the requirement of the Court, and therefore, cannot be deemed to be a substitute for examination under section 342 Cr.P.C.
7. We have heard Mr. C.M. Sarwar, learned counsel for the appellant, Mr. Muhammad Sharif Janua, learned Counsel for the State and have also perused record minutil with their assistance.
8. Learned counsel for the appellant brother to our (sick) a number of grounds on which conviction and sentence the appellant may be set aside. It was urged by him that there as delay of three months in lodging F.I.R., for which there is explanation on record. According to CW.1 Akbar Ali, DSP Headquaters, Lodhran he was entrusted the investigation of the case and he found only Ali Ahmed, appellant, guilty and other innocent. In cross-examination he stated that Mst. Sumera Bibihad illicit relations with Movulvi Ghulam Farid, the Imam of the Mosque of the village. There was no abduction as alleged in F.I.R. Both Mst. Sumera and Mst. Samina went to Lahore at own with Ali Ahmed appellant. The matter was reported to Punchayat’. Its members Muhammad Akram, an Ex. Counciler and Muhammad Riaz Mohl took Mst. Sumera from and dropped her to Chak No. 361/EB and later or handed over to her grand-father Babar Shah. Neither of the alleged abductees ever reached Chak No.361/EB at their own and ever visted Pakpattan. It also came to his Knowledge that the grand-father of the girls Babar Hussain Shah refused to register the case against any person because he believed that his grand-daughters were at fault. Accorfing to PW.7 Dr. Afia Alam, WHO, who conducted medical examination of Mst.Sumera Bibi and Mst. Samina in her report had stated that there were no mark of violence or injustice on their external examination. There were no strains on vulva, their hymens were torn and deald and their vagina admitted two fingers easily. The swabs were stained with semen. They were habitual to sexual intercourse. It was stated by the leaned counsel for the appellant that swabs were sent to Chemical Examiner after six months, which could only remain intact for 17 days only. Neither the grand-father nor ‘Khala’ of the alleged victims nor independent witnesses were produced by prosecution. Except Ali Ahmed, appellant all the others seven accused were seclared innocent by the police.
9. Thus gross illegality was committed by the learned trial court while proceeding under section 342 Cr.P.C. There are a number of loopholes in the prosecution case as well which leave us with no option but to set asid the conviction passed and sentences given to the appellant by the learned Additional Sessions Judge, Burewala. Resultantly the appeal is accepted with the direction to jail authorities to forthwith release both the appellant, namely Ali Sher and Ali Ahmed unless they are required in same others criminal case.
S B L R 2007 Sindh
[Federal Shariat Court]
Present: Haziqul Khairi, CJ.
Haji---Appellant
versus
The State---Respondent.
Criminal Appeal No. 20-K of 2006. decided on 13th March, 2006.
A) Criminal Procedure Code, 1898. Section 340(2)---where accused person is willing to examine himself on oath under section 340(2) them it is the duty of Trial Court to record his statement give explanation as to why his evidence will not be recorded.[P- ]A.
Mr. Salahuddin Panhwar Advocate for the Appellant.
Mr. Arshad. H. Lodhi, A.A.G. Sindh Advocate for The State.
JUDGMENT
HAZIQUL KHAIRI, CJ:- The appellant is aggrieved and dissatisfied with the judgment dated 13.3.2006 passed by learned District & Sessions Judge Mirpurkhas in Sessions Case No.21/2004 in which the appellant has been convicted to suffer R.I. for the (10) years.
2. M.Salahuddin Panhwar counsel for the appellant vehemently urges that although the appellant had replied in his statement under section 342 Cr.P.C. that he was willing to examine himself on oath under section 340(2), Cr.P.C. but his evidence was not recorded nor any explanation was give by the learned Judge as to why his evidence will not be recorded, which by itdelf, is sufficient vitiate the whole proceedings.
3. In his judgment the learned sessions Judge Mirpurkhas has stated that the accused has not examined himself on oath to disprove the prosecution case. Mr. Arshad. H.Lodhi, A.A.G for the Sate has gone through the record of the Trial Court including the Diary of the Court and confirms that at no other place the record shows that the appellant had declined to examine himself on oath to disprove the prosecution case and as undertaken by him in his statement under section 340(2), Cr.P.C. It will be advantageous to reproduce here section 34-0 (2). Cr>P.C. as under:
“[340(2). Any person accused of an offence before a Criminal Court against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial;
Provided that he shall not be asked; and, if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he being tried; or is of bad character, unless
the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged for which he is being tried; or
he has personally or by his pleader asked question of any witness for the prosecution with a view to establishment his own good character, or has given evidence of his good character; or
he has given evidence, against any other person charged with or tried for the same offence].”
4. the appellant admittedly pleaded not guilty and having said so it gives impassable right to give evidence on oath in disproof of the charges or allegations made against him---, and cast upon the Court a duty to seek clarification from him for retracting his earlier stand as it shall be in constitution of section 340 (2), Cr.P.C. The record however show that the appellant had produced defence witnesses but not himself. In these circumstance the learned trial Judge should have farmed the question and recorded the retracted statement of appellant in writing before the commencement of his defence. I, therefore, remand the case to the learned Session Judge Mirpurkhas with direction to examine the appellant on oath if he so desires and if not to recrd in writing his refusal to do so. Ample opportunity be given to the counsel for the appellant to re-argue his case in the light of the additional evidence if any recorded by the Court
5. The learned trial Court if further directed to give his judgment within 60 days hereof.
The appeal is accordingly disposed of.
Present: Haziqul Khairi, CJ.
Haji---Appellant
versus
The State---Respondent.
Criminal Appeal No. 20-K of 2006. decided on 13th March, 2006.
A) Criminal Procedure Code, 1898. Section 340(2)---where accused person is willing to examine himself on oath under section 340(2) them it is the duty of Trial Court to record his statement give explanation as to why his evidence will not be recorded.[P- ]A.
Mr. Salahuddin Panhwar Advocate for the Appellant.
Mr. Arshad. H. Lodhi, A.A.G. Sindh Advocate for The State.
JUDGMENT
HAZIQUL KHAIRI, CJ:- The appellant is aggrieved and dissatisfied with the judgment dated 13.3.2006 passed by learned District & Sessions Judge Mirpurkhas in Sessions Case No.21/2004 in which the appellant has been convicted to suffer R.I. for the (10) years.
2. M.Salahuddin Panhwar counsel for the appellant vehemently urges that although the appellant had replied in his statement under section 342 Cr.P.C. that he was willing to examine himself on oath under section 340(2), Cr.P.C. but his evidence was not recorded nor any explanation was give by the learned Judge as to why his evidence will not be recorded, which by itdelf, is sufficient vitiate the whole proceedings.
3. In his judgment the learned sessions Judge Mirpurkhas has stated that the accused has not examined himself on oath to disprove the prosecution case. Mr. Arshad. H.Lodhi, A.A.G for the Sate has gone through the record of the Trial Court including the Diary of the Court and confirms that at no other place the record shows that the appellant had declined to examine himself on oath to disprove the prosecution case and as undertaken by him in his statement under section 340(2), Cr.P.C. It will be advantageous to reproduce here section 34-0 (2). Cr>P.C. as under:
“[340(2). Any person accused of an offence before a Criminal Court against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial;
Provided that he shall not be asked; and, if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged or for which he being tried; or is of bad character, unless
the proof that he has committed or been convicted of such offence is admissible in evidence to show that he is guilty of the offence with which he is charged for which he is being tried; or
he has personally or by his pleader asked question of any witness for the prosecution with a view to establishment his own good character, or has given evidence of his good character; or
he has given evidence, against any other person charged with or tried for the same offence].”
4. the appellant admittedly pleaded not guilty and having said so it gives impassable right to give evidence on oath in disproof of the charges or allegations made against him---, and cast upon the Court a duty to seek clarification from him for retracting his earlier stand as it shall be in constitution of section 340 (2), Cr.P.C. The record however show that the appellant had produced defence witnesses but not himself. In these circumstance the learned trial Judge should have farmed the question and recorded the retracted statement of appellant in writing before the commencement of his defence. I, therefore, remand the case to the learned Session Judge Mirpurkhas with direction to examine the appellant on oath if he so desires and if not to recrd in writing his refusal to do so. Ample opportunity be given to the counsel for the appellant to re-argue his case in the light of the additional evidence if any recorded by the Court
5. The learned trial Court if further directed to give his judgment within 60 days hereof.
The appeal is accordingly disposed of.
S B L R 2006 FSC
[Federal Shariat Court]
Present: Mr. Justice S. A. Rabbani, J.
Babar & others---Appellants.
Versus
The State---Respondent
Criminal Appeal No.221-I-2005, decided on 2nd November 2005,
A) Officer of zina (enforcement of Hudood) Ordinance, 1979, Section 10(2)---Appeal against connection, allowed---only police personnel were examined---no recorvery was made from the room of hoted---no person from the administration of holed that police witness are good witnesses but trial Court is under duty to examine the evidence of police Officials carefully and skeptically when their evidence is not corroborated by independent evidence.
B) Criminal Procedure Code,1898 Section 367---Requirement of---points for determination of Judgment were not mentioned as requirement by this section---lengthy judgment without points of establishing evidence indicates incompetence or dishonesty of trial Judge which is not sustainable in law---appeal allowed conviction set aside.
JUDGMENT
S. A. RABBANI,J. The two men and two woman filed this appeal, were jointly tried before the Additional Sessions Judge Jhang on the Charge under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Mr. Akmal Khan Additional Sessions Judge, Convicted all of them on the said charge and sentenced each of them to five years rigorous imprisonment, with a fina of Rs. 10,000/-.
2. The prosecution story was that S.I Muhammad Akmal, Incharge Police Post, Ali Abad Police Station Katwali, district, Jhang, conducted a raid at Al-Noor Hotal, on 28.10.2004 at about 2.30 a.m (night), where he found that these four appellants were engaged in commission os Zina in one room of the hotal, door of which was not locked and was a bit open. He arrested the accused/appellant and, after investigation, sent them up for trial.
3. The F.I.R was also lodeged by this investigation subordinate to him and one Dr.Kausar Parveen. The appellant accuased, in their statements recorded under section 324 Cr.P.C, before the trial court, denied the charge against them they said that they were coming back after attending a ceremony and when they reached Jhang at the time of ‘sehri’ during Ramzan, they went to Al-noor hotel and while they were taking meals, the police came and started questioning them and demanded illegal gratification and on refusal to pay the illegal gratification, they were involved in this false case.
4. Malik Rab Nawaz Noon. Learned counsel for the appellant, pointed out that though the appellant were arrested in a hotel no person from the hotel administration was joined in the investigation nor and thing was secured from the room where the alleged offence was being committed. He further pointed out that the swabs taken during the medical examination were sent to Chemical examiner after days. The learned counsel contended that althought the witnesses are sudordinate to the investigation officer, eben then there are material contradictions in their evidence, such as one witness says that the door of the room had one plank and the other says that it hd two planks. He submitted that the investigation officer admitted that he did not join in investigation any body from the hotel staff or other persons, although a witness says that some persons were present there.
5. Mr. Muhammad Sharif Janjua, learned State counsel, supported the conviction and sentences and submitted that despite the fact that no record of the hotel was secured and produced in evidence, the fact is that the appellant were arrested from the hotel.
6. The prosecution story, made by the investigation officer, S.I Muhammad Akram that the two couples were engaged in commission of zina on one bed, in the same room, with an open door in a hotel, looks odd and the fact that record of the hotel about stay of the appellant there was secured and produced nor any body from the staff of the hotel or any persons staying there was joined in investigation and much a witness, makes it absurd.
7. The word of the investigation officer, corroborated by the version of six police constable subordinate to him, could not be deemed adequate for proof of the charge in the circumstances. The evidence of the medical officer would also add veracity to the evidence of these witnesses.
8. The learned judge of the trial court observed that, according to law, police officials are as good witnesses as any other witness when there is no animosity alleged against them. Despite this, law there remains a duty on a trial court examine the evidence of police officials carefully and skeptically when their evidence is not corroborated by independent evidence. Man cannot be made through law. About the motive, the appellant have alleged that the investigation officer demanded illegal gratification and involved them in this false case on their refusal. It is not necessary that should be a previous animosity with the police witnesses to discared their evidence.
9. The learned judge of the trial court did not mention points for determination in his judgment, as is required by section 367 Criminal Procedure Code, and after narrating and disusing the evidence, he observed that in view of that disussion the prosecution case was proved beyond a shadow of doubt. It was not clearly mentioned as to which pints were established by the evidence to constitute the charge against the accused persons.
10. An unnecessary lengthy judgment indicates that the author of the judgment is either incompetent of dishonest. He is incompetent because he is unable to decide as to what material is necessary ti insert in the judgment and what is not required for the reason that it would add noting meaningful to it. The author of a lengthy judgment would be dishonest when he gives a verdict that is not the logical outcome of the evidence and material on record and, to justify the verdict he adds more material. As far one travels from the truth, as much material he needs to justify it.
11. The evidence of the medical officer was inconsequential as there was no credible direct evidence to which of would corroborate. The evidence of other witnesses lacked veracity for proof of the incredible prosecution story. No record of the hotel was produced to established that the appellant/accused were staying in that hotel. The evidence placed on record could not be deemd sufficient by a man of ordinary prudence for proof of the charge. The impugned judgment and the consequent and sentences awarded to the appellant are not sustainable and, accordingly, the appeal is allowed and conviction and sentences awarded to the appellants are set saide. The appellant shall be released forthwith in this case.
Present: Mr. Justice S. A. Rabbani, J.
Babar & others---Appellants.
Versus
The State---Respondent
Criminal Appeal No.221-I-2005, decided on 2nd November 2005,
A) Officer of zina (enforcement of Hudood) Ordinance, 1979, Section 10(2)---Appeal against connection, allowed---only police personnel were examined---no recorvery was made from the room of hoted---no person from the administration of holed that police witness are good witnesses but trial Court is under duty to examine the evidence of police Officials carefully and skeptically when their evidence is not corroborated by independent evidence.
B) Criminal Procedure Code,1898 Section 367---Requirement of---points for determination of Judgment were not mentioned as requirement by this section---lengthy judgment without points of establishing evidence indicates incompetence or dishonesty of trial Judge which is not sustainable in law---appeal allowed conviction set aside.
JUDGMENT
S. A. RABBANI,J. The two men and two woman filed this appeal, were jointly tried before the Additional Sessions Judge Jhang on the Charge under section 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Mr. Akmal Khan Additional Sessions Judge, Convicted all of them on the said charge and sentenced each of them to five years rigorous imprisonment, with a fina of Rs. 10,000/-.
2. The prosecution story was that S.I Muhammad Akmal, Incharge Police Post, Ali Abad Police Station Katwali, district, Jhang, conducted a raid at Al-Noor Hotal, on 28.10.2004 at about 2.30 a.m (night), where he found that these four appellants were engaged in commission os Zina in one room of the hotal, door of which was not locked and was a bit open. He arrested the accused/appellant and, after investigation, sent them up for trial.
3. The F.I.R was also lodeged by this investigation subordinate to him and one Dr.Kausar Parveen. The appellant accuased, in their statements recorded under section 324 Cr.P.C, before the trial court, denied the charge against them they said that they were coming back after attending a ceremony and when they reached Jhang at the time of ‘sehri’ during Ramzan, they went to Al-noor hotel and while they were taking meals, the police came and started questioning them and demanded illegal gratification and on refusal to pay the illegal gratification, they were involved in this false case.
4. Malik Rab Nawaz Noon. Learned counsel for the appellant, pointed out that though the appellant were arrested in a hotel no person from the hotel administration was joined in the investigation nor and thing was secured from the room where the alleged offence was being committed. He further pointed out that the swabs taken during the medical examination were sent to Chemical examiner after days. The learned counsel contended that althought the witnesses are sudordinate to the investigation officer, eben then there are material contradictions in their evidence, such as one witness says that the door of the room had one plank and the other says that it hd two planks. He submitted that the investigation officer admitted that he did not join in investigation any body from the hotel staff or other persons, although a witness says that some persons were present there.
5. Mr. Muhammad Sharif Janjua, learned State counsel, supported the conviction and sentences and submitted that despite the fact that no record of the hotel was secured and produced in evidence, the fact is that the appellant were arrested from the hotel.
6. The prosecution story, made by the investigation officer, S.I Muhammad Akram that the two couples were engaged in commission of zina on one bed, in the same room, with an open door in a hotel, looks odd and the fact that record of the hotel about stay of the appellant there was secured and produced nor any body from the staff of the hotel or any persons staying there was joined in investigation and much a witness, makes it absurd.
7. The word of the investigation officer, corroborated by the version of six police constable subordinate to him, could not be deemed adequate for proof of the charge in the circumstances. The evidence of the medical officer would also add veracity to the evidence of these witnesses.
8. The learned judge of the trial court observed that, according to law, police officials are as good witnesses as any other witness when there is no animosity alleged against them. Despite this, law there remains a duty on a trial court examine the evidence of police officials carefully and skeptically when their evidence is not corroborated by independent evidence. Man cannot be made through law. About the motive, the appellant have alleged that the investigation officer demanded illegal gratification and involved them in this false case on their refusal. It is not necessary that should be a previous animosity with the police witnesses to discared their evidence.
9. The learned judge of the trial court did not mention points for determination in his judgment, as is required by section 367 Criminal Procedure Code, and after narrating and disusing the evidence, he observed that in view of that disussion the prosecution case was proved beyond a shadow of doubt. It was not clearly mentioned as to which pints were established by the evidence to constitute the charge against the accused persons.
10. An unnecessary lengthy judgment indicates that the author of the judgment is either incompetent of dishonest. He is incompetent because he is unable to decide as to what material is necessary ti insert in the judgment and what is not required for the reason that it would add noting meaningful to it. The author of a lengthy judgment would be dishonest when he gives a verdict that is not the logical outcome of the evidence and material on record and, to justify the verdict he adds more material. As far one travels from the truth, as much material he needs to justify it.
11. The evidence of the medical officer was inconsequential as there was no credible direct evidence to which of would corroborate. The evidence of other witnesses lacked veracity for proof of the incredible prosecution story. No record of the hotel was produced to established that the appellant/accused were staying in that hotel. The evidence placed on record could not be deemd sufficient by a man of ordinary prudence for proof of the charge. The impugned judgment and the consequent and sentences awarded to the appellant are not sustainable and, accordingly, the appeal is allowed and conviction and sentences awarded to the appellants are set saide. The appellant shall be released forthwith in this case.
S B L R 2007 FSC 12
[Federal Shariat Court]
(Appellant Jurisdiction)
Present: Haziqul Khairi, CJ.
Habib-ur-Rahman---Appellant.
versus
The State---Respondent.
Criminal Appeal No. 17-K of 2006 Decided on 16th March, 2006.
A) Pakistan Penal Code, 1860---Section 392, 337,- F(i) r/w section 34---Appeal, conviction maintained---appellants counsel contended that through out the case none of the prosecution witnesses was cross examined by the counsel for the appellant and deprive the appellant of his right to cross examine them---observed that the examination in chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 but the appellant counsel was not available for their cross-examination nor the appellant availed opportunity to cross-examine persecution witnesses.
[P-17] A.
B) A accused Person cannot be compelled to defend himself---if an accused person refuses to cross examine the prosecution witness or does not avail the opportunity to defend himself then trial court cannot compel him to put up his defence but is obliged to give maximum latitude to him to defend himself to avoid the injustice.
[P-18] B.
Ms. Uzma Khan, Advocate for the Appellant.
Mr. Arshad H. Lodhi, Assistant Advocate General Sindh.
Date of hearing: 16th August, 2006.
JUDGMENT
HAZIQUL KHAIRI CJ.- The appellant being aggrieved and dissatisfied with the judgment dated 17.03.2006, passed by Mrs. Sher Bano Karim Vth Additional Sessions Judge Karachi South in S.C. No. 262/1997 arising out FIR No.56/1997 under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 has preferred this appeal under section 24(10 2nd Proviso of Hudood Ordinance, 1979 read with section 410 of Criminal Procedure Code whereby the learned judge was pleased to convict the appellant under section 392 & 337-F(i) read with section 34, PPC and awarded him sentence for seven (07) years and one year respectively and to pay Damman of Rs.25.000/= or in default whereof to undergo R.I. for six (06) months more. Both the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 23.2.1997, the complainant namely Naseer Ahmed reported at P.S. Kalakot that while he was present in his house at Flat No.12, 5th Floor, Noor Apartment, Muhammad Ali Alvi Road, Karachi somebody knocked at the door of his house and stated that a letter from one Naseer Ahmed (complainant) has come, whereupon the complainant opened the door and two persons namely Zahoor Ahmed son of Abdul Rehman and Habib-ur-Rehman son of Ghulam Mustafa entered into his house armed with weapons and directed him to take out whatever there was in the house. The complainant handed over gold moments to them and also cash amount and Rado Watch. However the complainant who was an ex-Army Officer in Oman tried to catch hold the appellant Habib-ur-Rahman who fired at him whereupon he got injured. The accused ran through the stairs of the house. When the complainant came down from the house a police van reached there and the police followed them and caught hold of the said two accused. Their companion standing on the ground floor fled away. The police recovered loaded pistol from the accused Zahoor Ahmed and another pistol and Rado Watch from the appellant Habib-ur-Rahman. The remaining looted property was taken away by their co-accused Abul Hasan who has been absconding since then, challaned under section 512, Cr.P.C. and declared proclaimed offender under section 87 and 88, Cr.P.C. After the grant of bail to Zahoor Ahmed another accused, he was also absconded and their case was kept on dormant file till they are arrested and produced before the learned Additional Sessions Judge Karachi South.
3. The prosecution examined complainant Naseer Ahmed who in his deposition reiterated what he had stated in FIR. He produced FIR, Memo of Arrest and Recovery, Memo of Site Inspection and Letter of Treatment etc. He also identified both the two accused persons in Court and also the Rado Watch.
4. PW-2 Kamran and PW-3 Sadiq also corroborated as to how the police mobile reached the building and how the complainant informed them of the incident and how the accused persons were apprehended and in their presence the TT pistols and Rado Watch were recovered.
5. PW-4 H.C. Abdul Razaq of P.S. Kalakot deposed that he was on mobile duty along with H.C. Akbar Baloch when he heard shouts of the people and on reaching Muhammad Ali Alvi Road at 10.15 a.m. he saw the accused running. The people apprehended them and handed over to them. H.C. Akbar Baloch conducted personal search of the accused and secured 32 bore pistol from Zahoor Ahmed and 30 bore pistol from Habib-ur-Rahman so also one Rado wrist watch and two bullets were recovered.
6. PW-5 Inspector Muhammad Ilyas the investigating officer also deposed and stated that the complainant came to the police station along with apprehended accused persons and the case property. He identified the appellant and he pistol which was brought in Court.
7. PW-7 Muhammad Hanif has supported the prosecution story to the extent that the injury was sustained by the complainant and produced and proved the medical summary at Ex.19.
8. It is pertinent to note that complainant (PW-1); Kamran (PW-2) and Muhammad Sadiq (PW-3) were examined on 13.11.1999. PW-4 HC Abdul Razaq was examined on 15.12.1999. PW-5 Inspector Muhammad Ilyas was examined on 3.7.2003 and then recalled and re-affirmed on 27.10.2004. PW-7 MLO Dr. Muhammad Hanif Shaikh was examined on 17.1.2006, but throughout on all these dates the appellant’s advocate remained absent to cross-examine the prosecution witnesses although ample opportunity was given to the appellant.
9. The main thrust of arguments of Ms. Uzma Khan learned advocate for the appellant is that the Trial Court has failed to appreciate that none of the prosecution witnesses was cross-examined by the counsel for the appellant and the Learned Trial Court had shown unnecessary haste to deprive the appellant of his right to cross-examine them and proceeded further in disposing of the case. It will be advantageous to reproduce here section 540, Cr.P.C. as under:
“540. Power to summon material witness or examine person present. Any Court may at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
10. In order to demonstrate the importance of cross-examination in a Criminal Trial, the learned counsel for the appellant has placed reliance on Nusrat vs. The State (1997 MLD 1358) Federal Shariat Court, in which was held:
“Right to cross-examine is not an empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. In the circumstances, the appellant should not be penalized for absence of his Advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned Single Judge of the Sindh High Court in the case of Altaf Hussain Shamim v. State PLD 1992 Karachi 91 in which judgment reliance has been placed on several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case the prosecution, witnesses should have been recalled in the circumstances of the case.”
11. In this case the application moved by the appellant for cross-examination of the witness was dismissed by the Trial Court on the ground that the evidence had already been completed and neither the advocate for the accused nor the accused cross-examined the prosecution witness. In Abdul Qadir vs The State (PLD 1991 Karachi 353) the Special Judge (Customs & Taxation) Karachi refused to grant the applicant’s application under section 540, Cr.P.C. for recalling the witnesses for purpose of cross-examination as his advocate was busy before a Division Bench of the High Court of Sindh on the date of examination of prosecution witnesses and was not available to cross-examine them. In Afzal Haider vs The State (1992 MLD 421) a Division Bench of High Court the appellant/accused wanted to cross-examine himself on oath to disprove the charge, but no opportunity was provided to him, resultantly the conviction was set aside. As regards the interpretation or and implications involved under section 540, Cr.P.C. the Criminal Procedure Code, the Supreme Court of Pakistan Muhammad Azam vs Muhammad Iqbal (PLD 1984 Supreme Court 95) at page 125 has held:
“One more aspect needs to be clarified regarding the exercise of power under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts one discretionary and the other obligatory; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of Section 540, Cr.P.C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps; namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power them should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.”
12. The facts of this case are very much different and distinguishable from the cases cited by the learned counsel for the appellant and other cases referred to above, inasmuch as, the appellant had moved an application on 21.08.2000 under section 540, Cr.P.C. for summoning the prosecution witnesses which was allowed, in response to which PW-4 H.C. Abdul Razaq appeared in the Court but again the accused failed to avail the opportunity to cross-examine him. As regards PW-1, 2 & 3, who were also related to one another it was reported that they were abroad and not available in Pakistan and one Khuda Bux father-in-law of PW-1 deposed in the Court to this effect but the appellant or his counsel failed to cross-examine him.
13. What is pertinent to note is that examination-in-chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 on as many as 6 different dates but at no point of time the appellant’s counsel was available for their cross-examination nor the appellant availed the opportunity to cross-examine prosecution witnesses.
14. A Trial Judge cannot compel an accused person to put up his defence but is obliged to give maximum latitude to him to defend himself so that injustice may not be done to him. It is also not incumbent on an accused person to put up his defence and he may leave it to the prosecution to prove their case against him and to let the Court decide his fate or have mercy on him. Criminal matters must be taken very seriously by the Court as they pertain to life, liberty and honour etc of a citizen but an accused cannot be allowed to abuse the due process of law. Learned counsel for the appellant concedes that the appellant remained on bail for about 2-1/2 years during this period. He was examined by the Trial Court under section 342, Cr.P.C. on 25.1.2006 but he refused to examine himself on oath to disprove the charge and also did not want to produce any defence witness. In Abdul Malilk vs The State (PLD 1985 F.S.C. 293) a Division Bench of this Court held as under:
“The duty of the Court ends as soon as the accused is asked to produce evidence in defence if any. In spite of the opportunity having been given, if the accused does not choose to exercise his right under section 340 (2) as amended by Ordinance XII of 1985, no irregularity shall be deemed to have been committed by the Court”.
15. Thus full opportunity was given to the appellant to adduce his deference and cross-examine prosecution witnesses. It is not the case of the appellant that on account of his poverty, he was unable to engage a counsel in which case a State Counsel could have been provided to him.
16. However, keeping in view the facts and circumstances of the case and the fact that this was the first offence committed by the appellant I reduce the sentence of the appellant from seven (07) years to five (05) years under section 392, PPC and to pay Daman of Rs.25,000/- or in default whereof to undergo R.I. for six (06) months. So far conviction under section 337-F(i) read with section 34, PPC is concerned I shall maintain the same. Both the sentences to run concurrently with benefit of section 382-B, Cr.P.C.
Order accordingly.
(Appellant Jurisdiction)
Present: Haziqul Khairi, CJ.
Habib-ur-Rahman---Appellant.
versus
The State---Respondent.
Criminal Appeal No. 17-K of 2006 Decided on 16th March, 2006.
A) Pakistan Penal Code, 1860---Section 392, 337,- F(i) r/w section 34---Appeal, conviction maintained---appellants counsel contended that through out the case none of the prosecution witnesses was cross examined by the counsel for the appellant and deprive the appellant of his right to cross examine them---observed that the examination in chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 but the appellant counsel was not available for their cross-examination nor the appellant availed opportunity to cross-examine persecution witnesses.
[P-17] A.
B) A accused Person cannot be compelled to defend himself---if an accused person refuses to cross examine the prosecution witness or does not avail the opportunity to defend himself then trial court cannot compel him to put up his defence but is obliged to give maximum latitude to him to defend himself to avoid the injustice.
[P-18] B.
Ms. Uzma Khan, Advocate for the Appellant.
Mr. Arshad H. Lodhi, Assistant Advocate General Sindh.
Date of hearing: 16th August, 2006.
JUDGMENT
HAZIQUL KHAIRI CJ.- The appellant being aggrieved and dissatisfied with the judgment dated 17.03.2006, passed by Mrs. Sher Bano Karim Vth Additional Sessions Judge Karachi South in S.C. No. 262/1997 arising out FIR No.56/1997 under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 has preferred this appeal under section 24(10 2nd Proviso of Hudood Ordinance, 1979 read with section 410 of Criminal Procedure Code whereby the learned judge was pleased to convict the appellant under section 392 & 337-F(i) read with section 34, PPC and awarded him sentence for seven (07) years and one year respectively and to pay Damman of Rs.25.000/= or in default whereof to undergo R.I. for six (06) months more. Both the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 23.2.1997, the complainant namely Naseer Ahmed reported at P.S. Kalakot that while he was present in his house at Flat No.12, 5th Floor, Noor Apartment, Muhammad Ali Alvi Road, Karachi somebody knocked at the door of his house and stated that a letter from one Naseer Ahmed (complainant) has come, whereupon the complainant opened the door and two persons namely Zahoor Ahmed son of Abdul Rehman and Habib-ur-Rehman son of Ghulam Mustafa entered into his house armed with weapons and directed him to take out whatever there was in the house. The complainant handed over gold moments to them and also cash amount and Rado Watch. However the complainant who was an ex-Army Officer in Oman tried to catch hold the appellant Habib-ur-Rahman who fired at him whereupon he got injured. The accused ran through the stairs of the house. When the complainant came down from the house a police van reached there and the police followed them and caught hold of the said two accused. Their companion standing on the ground floor fled away. The police recovered loaded pistol from the accused Zahoor Ahmed and another pistol and Rado Watch from the appellant Habib-ur-Rahman. The remaining looted property was taken away by their co-accused Abul Hasan who has been absconding since then, challaned under section 512, Cr.P.C. and declared proclaimed offender under section 87 and 88, Cr.P.C. After the grant of bail to Zahoor Ahmed another accused, he was also absconded and their case was kept on dormant file till they are arrested and produced before the learned Additional Sessions Judge Karachi South.
3. The prosecution examined complainant Naseer Ahmed who in his deposition reiterated what he had stated in FIR. He produced FIR, Memo of Arrest and Recovery, Memo of Site Inspection and Letter of Treatment etc. He also identified both the two accused persons in Court and also the Rado Watch.
4. PW-2 Kamran and PW-3 Sadiq also corroborated as to how the police mobile reached the building and how the complainant informed them of the incident and how the accused persons were apprehended and in their presence the TT pistols and Rado Watch were recovered.
5. PW-4 H.C. Abdul Razaq of P.S. Kalakot deposed that he was on mobile duty along with H.C. Akbar Baloch when he heard shouts of the people and on reaching Muhammad Ali Alvi Road at 10.15 a.m. he saw the accused running. The people apprehended them and handed over to them. H.C. Akbar Baloch conducted personal search of the accused and secured 32 bore pistol from Zahoor Ahmed and 30 bore pistol from Habib-ur-Rahman so also one Rado wrist watch and two bullets were recovered.
6. PW-5 Inspector Muhammad Ilyas the investigating officer also deposed and stated that the complainant came to the police station along with apprehended accused persons and the case property. He identified the appellant and he pistol which was brought in Court.
7. PW-7 Muhammad Hanif has supported the prosecution story to the extent that the injury was sustained by the complainant and produced and proved the medical summary at Ex.19.
8. It is pertinent to note that complainant (PW-1); Kamran (PW-2) and Muhammad Sadiq (PW-3) were examined on 13.11.1999. PW-4 HC Abdul Razaq was examined on 15.12.1999. PW-5 Inspector Muhammad Ilyas was examined on 3.7.2003 and then recalled and re-affirmed on 27.10.2004. PW-7 MLO Dr. Muhammad Hanif Shaikh was examined on 17.1.2006, but throughout on all these dates the appellant’s advocate remained absent to cross-examine the prosecution witnesses although ample opportunity was given to the appellant.
9. The main thrust of arguments of Ms. Uzma Khan learned advocate for the appellant is that the Trial Court has failed to appreciate that none of the prosecution witnesses was cross-examined by the counsel for the appellant and the Learned Trial Court had shown unnecessary haste to deprive the appellant of his right to cross-examine them and proceeded further in disposing of the case. It will be advantageous to reproduce here section 540, Cr.P.C. as under:
“540. Power to summon material witness or examine person present. Any Court may at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
10. In order to demonstrate the importance of cross-examination in a Criminal Trial, the learned counsel for the appellant has placed reliance on Nusrat vs. The State (1997 MLD 1358) Federal Shariat Court, in which was held:
“Right to cross-examine is not an empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. In the circumstances, the appellant should not be penalized for absence of his Advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned Single Judge of the Sindh High Court in the case of Altaf Hussain Shamim v. State PLD 1992 Karachi 91 in which judgment reliance has been placed on several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case the prosecution, witnesses should have been recalled in the circumstances of the case.”
11. In this case the application moved by the appellant for cross-examination of the witness was dismissed by the Trial Court on the ground that the evidence had already been completed and neither the advocate for the accused nor the accused cross-examined the prosecution witness. In Abdul Qadir vs The State (PLD 1991 Karachi 353) the Special Judge (Customs & Taxation) Karachi refused to grant the applicant’s application under section 540, Cr.P.C. for recalling the witnesses for purpose of cross-examination as his advocate was busy before a Division Bench of the High Court of Sindh on the date of examination of prosecution witnesses and was not available to cross-examine them. In Afzal Haider vs The State (1992 MLD 421) a Division Bench of High Court the appellant/accused wanted to cross-examine himself on oath to disprove the charge, but no opportunity was provided to him, resultantly the conviction was set aside. As regards the interpretation or and implications involved under section 540, Cr.P.C. the Criminal Procedure Code, the Supreme Court of Pakistan Muhammad Azam vs Muhammad Iqbal (PLD 1984 Supreme Court 95) at page 125 has held:
“One more aspect needs to be clarified regarding the exercise of power under section 540, Cr.P.C. It is in addition to three main aspects already noticed namely: that, it is divided into two parts one discretionary and the other obligatory; that, the obligatory one is conditioned by the fact that it should appear to the Court to be essential for the just decision of the case; and that, the rule against filling of the gaps would not operate against the exercise of this power if the case falls under the second part of Section 540, Cr.P.C. It relates to a proposition, converse to the so-called rules regarding filling of the gaps; namely that it should not be exercised so as to prejudice one or the other party. Enough has been said already that if a situation falls under the second part of section 540 clearly and squarely then the question of prejudice would not be entertainable. It is fallacious proposition that this power them should not be exercised. The mandate of law when itself does not admit of any such qualification, the Court cannot introduce it.”
12. The facts of this case are very much different and distinguishable from the cases cited by the learned counsel for the appellant and other cases referred to above, inasmuch as, the appellant had moved an application on 21.08.2000 under section 540, Cr.P.C. for summoning the prosecution witnesses which was allowed, in response to which PW-4 H.C. Abdul Razaq appeared in the Court but again the accused failed to avail the opportunity to cross-examine him. As regards PW-1, 2 & 3, who were also related to one another it was reported that they were abroad and not available in Pakistan and one Khuda Bux father-in-law of PW-1 deposed in the Court to this effect but the appellant or his counsel failed to cross-examine him.
13. What is pertinent to note is that examination-in-chief of the prosecution witnesses had commenced from 13.11.1999 and continued till 17.01.2006 on as many as 6 different dates but at no point of time the appellant’s counsel was available for their cross-examination nor the appellant availed the opportunity to cross-examine prosecution witnesses.
14. A Trial Judge cannot compel an accused person to put up his defence but is obliged to give maximum latitude to him to defend himself so that injustice may not be done to him. It is also not incumbent on an accused person to put up his defence and he may leave it to the prosecution to prove their case against him and to let the Court decide his fate or have mercy on him. Criminal matters must be taken very seriously by the Court as they pertain to life, liberty and honour etc of a citizen but an accused cannot be allowed to abuse the due process of law. Learned counsel for the appellant concedes that the appellant remained on bail for about 2-1/2 years during this period. He was examined by the Trial Court under section 342, Cr.P.C. on 25.1.2006 but he refused to examine himself on oath to disprove the charge and also did not want to produce any defence witness. In Abdul Malilk vs The State (PLD 1985 F.S.C. 293) a Division Bench of this Court held as under:
“The duty of the Court ends as soon as the accused is asked to produce evidence in defence if any. In spite of the opportunity having been given, if the accused does not choose to exercise his right under section 340 (2) as amended by Ordinance XII of 1985, no irregularity shall be deemed to have been committed by the Court”.
15. Thus full opportunity was given to the appellant to adduce his deference and cross-examine prosecution witnesses. It is not the case of the appellant that on account of his poverty, he was unable to engage a counsel in which case a State Counsel could have been provided to him.
16. However, keeping in view the facts and circumstances of the case and the fact that this was the first offence committed by the appellant I reduce the sentence of the appellant from seven (07) years to five (05) years under section 392, PPC and to pay Daman of Rs.25,000/- or in default whereof to undergo R.I. for six (06) months. So far conviction under section 337-F(i) read with section 34, PPC is concerned I shall maintain the same. Both the sentences to run concurrently with benefit of section 382-B, Cr.P.C.
Order accordingly.
S B L R 2007 FSC 7
[Federal Shariat Court]
(Appellate Jurisdiction)
Present: Haziqul Khairi, CJ. & Dr. Fida Muhammad Khan, J.
Ali Ahmed & another---Appellants
versus
The State---Respondent
Criminal Appeal No.274/4 of 2005, decided on 6th October, 2006.
A) Criminal Procedure Code, 1998 Section---342---Joint Examination, effect of---eight accused were recorded their statement jointly where they denied the allegations against them---held that Session court had acted with gross illegality, Judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C. which requires examination of an accused person separately and independent.[P-10]A.
B) The offence of Zina (Enforcement of Hudood) Ordinance, 1979---Section---11---10(3)---Conviction, set aside---observed that court below committed gross illegality---there are number of loopholes in the prosecution case---medical report shows that victims were habitual to sexual intercourse---held in these circumstances conviction can not be maintained---conviction set aside---appeal allowed.[P-12]B.
Mr. C.M. Sarwar, Advocate for the Appellants.
Mr. Muhammad Shaair Janjua, Advocate for the State.
Date of Hearing: 26th September 2006.
JUDGMENT
HAZIQUL KHAIRI, CHIEF JUSTICE.- This appeal is directed against the judgment dated 30.7.2005, passed by the learned Additional Sessions Judge, Burewala whereby appellants Ali Ahmed and Ali Sher, sons of Lal Din were convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as “the said Ordinance”) and sentenced to undergo imprisonment for life R.I. each Both the appellants were also convicted under section 10(3) of “ the said Ordinance” and sentenced to undergo ten years R.I.. each. Both the appellants were also extended benefit under section 382-B Cr.P.C.
2. Briefly, facts of the case are that on 26.5.2001 complainant Sajjad Hussain Shah lodged written complaint, Ex.PA, at Police Station Gago and in consequence whereof FIR No.200/2001, Exh.PA/1, was registered on 6.7.2001 which states as under:-
“I am Clerk Advocate My father is residing in Chak No.361/EB since long and he is a labourer. In the intervening night 24/4/2001, accused persons namely Ghulam Rasul, Muhammad Aslam alias Gogi, Muhammad Rafique, Ali Ahmed Sher Muhammad with each other, at about 10.00 came to village Boota who are relatives to each other in connivance/of my father. At that time Muhammad Rafique was armed with rifle G-3, Ali Ahmed with Kalashinkov, Ali Sher Muhammad Boota, Muhammad Aslam alias Gogi alongwith two other persons and Ghulam Rasul were armed with rifle 222-bore. Ali sher and Muhammad Boota were armed with guns double barrel. In the same night, bulb of mosque was broken and at about 2 ½ a.m. (night) after trespassing the house of him, entered in the house and they forcibly abducted my two daughters namely Mst. Saima and Mst. Sumera. When I came back from Lahore then I started their search. On 4.5.2001, my daughters came to me who narrated about the occurrence and told about the aforementioned accused persons. I moved a writ petition No.4175 before Hon’ble High Court, wherein it was directed that the SSP would make the inquiry. SSP made the inquiry on my application on 21.5.2001. I am a respectable citizen. My daughters are virgins and no body has seen them till today, Accused be dealt with in accordance with law”.
3. After completion of investigation challan was submitted in the Court where after charge against all the accused persons was framed on 8.1.2003 to which they pleaded not guilty and claimed trial.
4. The prosecution examined eight witnesses. PW.1 Dr. Atta Muhammad Zafar conducted potency test of appellant Ali Ahmed and found him fit to perform sexual intercourse. PW.2 Muhammad Rafie, Head Constable No.109 on receipt of two sealed parcels from S.H.O Kept in the Malkhana and on 27.11.2001 handed over the same to Parvez Akhtar, Constable NO.792 for onward transmission to the Office of the Chemical Examiner, Multan PW.3 Pervez Akhtar, Constable No.792 delivered two sealed parcels in the Office of the Chemical Examiner , Multan. PW.4 Mst. Sumera Bibi reiterated contents of her father’s complaint, Ex.PA. She further deposed that the accused persons forcibly boarded them in a car in which appellants Ali Sher and Ali Ahmed, were boarded with them. They took them to Misri Shah, Lahore where they confined them in a room all and the accused persons turn-by-turn committed zina-bil-jabr with them. They were confined for eight days and they were subjected to zina bil-jabr during night whereas they (victims) were being intoxicated during day time so that they may sleep the whole day. She stated that one day the door was opened, they fled away from Lahore and came to their parents house at Chak No.361/EB. PW.5 Mst. Saima Bibi supported her sister’s deposition. PW.6 Sajjad Hussain Shah, complainant reiterated the contents of his written complaint, Ex.PA. PW.7 Dr. Afia Naz Alam conducted medical examination of Mst. Sumera and Mst. Saima. According to her opinion both (victims) were habitual to sexual intercourse. PW.8 Ghulam Mustafa, Inspector/SHO, I.O. of the case stated that on 6.7.2001 he received report from S.P, Vehari alongwith the statement of Sajjad Hussain, complainant. According to inquiry report, only Ali Ahmed, appellant was found guilty for the abduction of Mst. Sumera and Saima. He recorded the formal FIR, Ex.PA/1 and inspected the place of occurrence and prepared rough site plan, Ex.PJ. He recorded statements of PWs. under section 161 Cr.P.C. and on 22.7.2001 arrested appellant Ali Ahmed. The prosecution also examined CW.1 Akbar Ali, DSP who deposed that on 14.11.2001, S.P, Vehari entrusted investigation of this case to him. After his investigation, he opined Ali Ahmed, appellant guilty and others accused innocent.
5. On 29.6.2005, statements of accused persons were recorded under section 342 Cr.P.C wherein they denied the allegations leveled against them. Before I take up their statements it would be advantageous to refer to its significance under section 342 Cr.P.C. The Supreme Court of Pakistan in the case of S.A.K. Rehmani Vs. The State reported in 2005 SCMR 364 has observed:-
“There is no cavil with the proposition that “Section 342 Cr.P.C. can be bifurcated into to parts. Subsection (1) of Section 342 Cr.P.C. confers discretion to the Court while its second part is mandatory and besides that the section revolves around the maxim audi alteram partem i.e. that no one should be condemned unheard.” AIR 1940 Nag. 283, 41 Cri.LJour 585, AIR 1957 Mys.9 ILR 1956 Mys. 114, 1957 Cri.LJour 208, AIR 1936 Pesh. 211, AIR 1937 Pesh. 20, 38 Cri. Jour 387, AIR 1935 Cal. 605, AIR 1936 Oudh 16,36 Cri.L Jour 1303, AIR 1934 Oudh 457. “The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth and it constantly happens that the accused’s explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given”.
6. Now all the eight accused persons namely Ali Ahmed (appellant), Ali Sher (appellant), Muhammad Suleman, Muhammad Riaz, Muhammad Rafique, Muhammad Boota, Muhammad Aslam and Ghulam Rasul in reply to questions asked by the learned Sessions Judge came out with exactly the same reply alongwith the contentions raised by them against the prosecution. In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C, which requires examination of an accused person separately and independently. I am fortified in my view by the case of Muhammad Aslam Vs. The Crown reported in 1969 P.Cr.L.J. 1178 wherein it was held that “if there are more than one accused each and every accused shall be examined separately. Short cut procedure would amount to flagrant violation of the provision of law”. In the case of Afzal Khan and 4 others Vs. The State reported in 1997 P.Cr.L.J. 1416 “Joint examination of several accused under section 342 Cr.P.C. is allegal and vitiates the whole trial .” In the case of A.M. Nur Main Vs. Mokhlesur Rehman Almansuri reported in PLD 1967 Dacca 503 it was held that a written statement by the accused cannot anticipate the requirement of the Court, and therefore, cannot be deemed to be a substitute for examination under section 342 Cr.P.C.
7. We have heard Mr. C.M. Sarwar, learned counsel for the appellants, Mr. Muhammad Sharif Janjua, learned Counsel for the State and have also perused record minutely with their assistance.
8. Learned counsel for the appellants brought to our notice a number of grounds on which conviction and sentence the appellant may be set aside. It was urged by him that there was delay of three months in lodging F.I.R., for which there is no explanation on record. According to CW.1 Akbar Ali, DSP Headquarters, Lodhran he was entrusted the investigation of the case and he found only Ali Ahmed, appellant, guilty and other innocent. In cross-examination he stated that Mst. Sumera Bibi had illicit relations with Moulvi Ghulam Farid, the Imam of the Mosque of the village. There was no abduction as alleged in F.I.R. Both Mst. Sumera and Mst. Samina went to Lahore at their own with Ali Ahmed appellant. The matter was reported to Punchayat’. Its members Muhammad Akram, an Ex. Counciler and Muhammad Riaz Mohl took Mst. Sumera from Lahore and dropped her to Chak No. 361/EB and later on handed over to her grand-father Babar Hissain Shah. Neither of the alleged abductees ever reached Chak No.361/EB at their own and ever visited Pakpattan. It also came to his Knowledge that the grand-father of the girls Babar Hussain Shah refused to register the case against any person because he believed that his grand-daughters were at fault. Accorfing to PW.7 Dr. Afia Alam, WHO, who conducted medical examination of Mst.Sumera Bibi and Mst. Samina in her report had stated that there were no mark of violence or injustice on their external examination. There were no strains on vulva, their hymens were torn and healed and their vagina admitted two fingers easily. The swabs were stained with semen. They were habitual to sexual intercourse. It was stated by the learned counsel for the appellants that swabs were sent to Chemical Examiner after six months, which could only remain intact for 17 days only. Neither the grand-father nor ‘Khala’ of the alleged victims nor independent witnesses were produced by prosecution. Except Ali Ahmed, appellant all the others seven accused were seclared innocent by the police.
9. Thus gross illegality was committed by the learned trial court while proceeding under section 342 Cr.P.C. There are a number of loopholes in the prosecution case as well which leave us with no option but to set aside the conviction passed and sentences given to the appellants by the learned Additional Sessions Judge, Burewala. Resultantly the appeal is accepted with the direction to jail authorities to forthwith release both the appellant, namely Ali Sher and Ali Ahmed unless they are required in some others criminal case.
Order accordingly.
(Appellate Jurisdiction)
Present: Haziqul Khairi, CJ. & Dr. Fida Muhammad Khan, J.
Ali Ahmed & another---Appellants
versus
The State---Respondent
Criminal Appeal No.274/4 of 2005, decided on 6th October, 2006.
A) Criminal Procedure Code, 1998 Section---342---Joint Examination, effect of---eight accused were recorded their statement jointly where they denied the allegations against them---held that Session court had acted with gross illegality, Judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C. which requires examination of an accused person separately and independent.[P-10]A.
B) The offence of Zina (Enforcement of Hudood) Ordinance, 1979---Section---11---10(3)---Conviction, set aside---observed that court below committed gross illegality---there are number of loopholes in the prosecution case---medical report shows that victims were habitual to sexual intercourse---held in these circumstances conviction can not be maintained---conviction set aside---appeal allowed.[P-12]B.
Mr. C.M. Sarwar, Advocate for the Appellants.
Mr. Muhammad Shaair Janjua, Advocate for the State.
Date of Hearing: 26th September 2006.
JUDGMENT
HAZIQUL KHAIRI, CHIEF JUSTICE.- This appeal is directed against the judgment dated 30.7.2005, passed by the learned Additional Sessions Judge, Burewala whereby appellants Ali Ahmed and Ali Sher, sons of Lal Din were convicted under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as “the said Ordinance”) and sentenced to undergo imprisonment for life R.I. each Both the appellants were also convicted under section 10(3) of “ the said Ordinance” and sentenced to undergo ten years R.I.. each. Both the appellants were also extended benefit under section 382-B Cr.P.C.
2. Briefly, facts of the case are that on 26.5.2001 complainant Sajjad Hussain Shah lodged written complaint, Ex.PA, at Police Station Gago and in consequence whereof FIR No.200/2001, Exh.PA/1, was registered on 6.7.2001 which states as under:-
“I am Clerk Advocate My father is residing in Chak No.361/EB since long and he is a labourer. In the intervening night 24/4/2001, accused persons namely Ghulam Rasul, Muhammad Aslam alias Gogi, Muhammad Rafique, Ali Ahmed Sher Muhammad with each other, at about 10.00 came to village Boota who are relatives to each other in connivance/of my father. At that time Muhammad Rafique was armed with rifle G-3, Ali Ahmed with Kalashinkov, Ali Sher Muhammad Boota, Muhammad Aslam alias Gogi alongwith two other persons and Ghulam Rasul were armed with rifle 222-bore. Ali sher and Muhammad Boota were armed with guns double barrel. In the same night, bulb of mosque was broken and at about 2 ½ a.m. (night) after trespassing the house of him, entered in the house and they forcibly abducted my two daughters namely Mst. Saima and Mst. Sumera. When I came back from Lahore then I started their search. On 4.5.2001, my daughters came to me who narrated about the occurrence and told about the aforementioned accused persons. I moved a writ petition No.4175 before Hon’ble High Court, wherein it was directed that the SSP would make the inquiry. SSP made the inquiry on my application on 21.5.2001. I am a respectable citizen. My daughters are virgins and no body has seen them till today, Accused be dealt with in accordance with law”.
3. After completion of investigation challan was submitted in the Court where after charge against all the accused persons was framed on 8.1.2003 to which they pleaded not guilty and claimed trial.
4. The prosecution examined eight witnesses. PW.1 Dr. Atta Muhammad Zafar conducted potency test of appellant Ali Ahmed and found him fit to perform sexual intercourse. PW.2 Muhammad Rafie, Head Constable No.109 on receipt of two sealed parcels from S.H.O Kept in the Malkhana and on 27.11.2001 handed over the same to Parvez Akhtar, Constable NO.792 for onward transmission to the Office of the Chemical Examiner, Multan PW.3 Pervez Akhtar, Constable No.792 delivered two sealed parcels in the Office of the Chemical Examiner , Multan. PW.4 Mst. Sumera Bibi reiterated contents of her father’s complaint, Ex.PA. She further deposed that the accused persons forcibly boarded them in a car in which appellants Ali Sher and Ali Ahmed, were boarded with them. They took them to Misri Shah, Lahore where they confined them in a room all and the accused persons turn-by-turn committed zina-bil-jabr with them. They were confined for eight days and they were subjected to zina bil-jabr during night whereas they (victims) were being intoxicated during day time so that they may sleep the whole day. She stated that one day the door was opened, they fled away from Lahore and came to their parents house at Chak No.361/EB. PW.5 Mst. Saima Bibi supported her sister’s deposition. PW.6 Sajjad Hussain Shah, complainant reiterated the contents of his written complaint, Ex.PA. PW.7 Dr. Afia Naz Alam conducted medical examination of Mst. Sumera and Mst. Saima. According to her opinion both (victims) were habitual to sexual intercourse. PW.8 Ghulam Mustafa, Inspector/SHO, I.O. of the case stated that on 6.7.2001 he received report from S.P, Vehari alongwith the statement of Sajjad Hussain, complainant. According to inquiry report, only Ali Ahmed, appellant was found guilty for the abduction of Mst. Sumera and Saima. He recorded the formal FIR, Ex.PA/1 and inspected the place of occurrence and prepared rough site plan, Ex.PJ. He recorded statements of PWs. under section 161 Cr.P.C. and on 22.7.2001 arrested appellant Ali Ahmed. The prosecution also examined CW.1 Akbar Ali, DSP who deposed that on 14.11.2001, S.P, Vehari entrusted investigation of this case to him. After his investigation, he opined Ali Ahmed, appellant guilty and others accused innocent.
5. On 29.6.2005, statements of accused persons were recorded under section 342 Cr.P.C wherein they denied the allegations leveled against them. Before I take up their statements it would be advantageous to refer to its significance under section 342 Cr.P.C. The Supreme Court of Pakistan in the case of S.A.K. Rehmani Vs. The State reported in 2005 SCMR 364 has observed:-
“There is no cavil with the proposition that “Section 342 Cr.P.C. can be bifurcated into to parts. Subsection (1) of Section 342 Cr.P.C. confers discretion to the Court while its second part is mandatory and besides that the section revolves around the maxim audi alteram partem i.e. that no one should be condemned unheard.” AIR 1940 Nag. 283, 41 Cri.LJour 585, AIR 1957 Mys.9 ILR 1956 Mys. 114, 1957 Cri.LJour 208, AIR 1936 Pesh. 211, AIR 1937 Pesh. 20, 38 Cri. Jour 387, AIR 1935 Cal. 605, AIR 1936 Oudh 16,36 Cri.L Jour 1303, AIR 1934 Oudh 457. “The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth and it constantly happens that the accused’s explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given”.
6. Now all the eight accused persons namely Ali Ahmed (appellant), Ali Sher (appellant), Muhammad Suleman, Muhammad Riaz, Muhammad Rafique, Muhammad Boota, Muhammad Aslam and Ghulam Rasul in reply to questions asked by the learned Sessions Judge came out with exactly the same reply alongwith the contentions raised by them against the prosecution. In short the questions asked by him and reply given by all the accused persons were verbatim the same leading to irrebutable conclusion that the trial Court had acted with gross illegality, judicial impropriety and in flagrant breach of mandatory provisions of section 342 Cr.P.C, which requires examination of an accused person separately and independently. I am fortified in my view by the case of Muhammad Aslam Vs. The Crown reported in 1969 P.Cr.L.J. 1178 wherein it was held that “if there are more than one accused each and every accused shall be examined separately. Short cut procedure would amount to flagrant violation of the provision of law”. In the case of Afzal Khan and 4 others Vs. The State reported in 1997 P.Cr.L.J. 1416 “Joint examination of several accused under section 342 Cr.P.C. is allegal and vitiates the whole trial .” In the case of A.M. Nur Main Vs. Mokhlesur Rehman Almansuri reported in PLD 1967 Dacca 503 it was held that a written statement by the accused cannot anticipate the requirement of the Court, and therefore, cannot be deemed to be a substitute for examination under section 342 Cr.P.C.
7. We have heard Mr. C.M. Sarwar, learned counsel for the appellants, Mr. Muhammad Sharif Janjua, learned Counsel for the State and have also perused record minutely with their assistance.
8. Learned counsel for the appellants brought to our notice a number of grounds on which conviction and sentence the appellant may be set aside. It was urged by him that there was delay of three months in lodging F.I.R., for which there is no explanation on record. According to CW.1 Akbar Ali, DSP Headquarters, Lodhran he was entrusted the investigation of the case and he found only Ali Ahmed, appellant, guilty and other innocent. In cross-examination he stated that Mst. Sumera Bibi had illicit relations with Moulvi Ghulam Farid, the Imam of the Mosque of the village. There was no abduction as alleged in F.I.R. Both Mst. Sumera and Mst. Samina went to Lahore at their own with Ali Ahmed appellant. The matter was reported to Punchayat’. Its members Muhammad Akram, an Ex. Counciler and Muhammad Riaz Mohl took Mst. Sumera from Lahore and dropped her to Chak No. 361/EB and later on handed over to her grand-father Babar Hissain Shah. Neither of the alleged abductees ever reached Chak No.361/EB at their own and ever visited Pakpattan. It also came to his Knowledge that the grand-father of the girls Babar Hussain Shah refused to register the case against any person because he believed that his grand-daughters were at fault. Accorfing to PW.7 Dr. Afia Alam, WHO, who conducted medical examination of Mst.Sumera Bibi and Mst. Samina in her report had stated that there were no mark of violence or injustice on their external examination. There were no strains on vulva, their hymens were torn and healed and their vagina admitted two fingers easily. The swabs were stained with semen. They were habitual to sexual intercourse. It was stated by the learned counsel for the appellants that swabs were sent to Chemical Examiner after six months, which could only remain intact for 17 days only. Neither the grand-father nor ‘Khala’ of the alleged victims nor independent witnesses were produced by prosecution. Except Ali Ahmed, appellant all the others seven accused were seclared innocent by the police.
9. Thus gross illegality was committed by the learned trial court while proceeding under section 342 Cr.P.C. There are a number of loopholes in the prosecution case as well which leave us with no option but to set aside the conviction passed and sentences given to the appellants by the learned Additional Sessions Judge, Burewala. Resultantly the appeal is accepted with the direction to jail authorities to forthwith release both the appellant, namely Ali Sher and Ali Ahmed unless they are required in some others criminal case.
Order accordingly.
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