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Criminal Appeal No. 830 of 1959, decided on 11th October 1960.

S. 342‑Unduly detailed examination of accused savouring of cross‑examination disapproved‑Court not bound to question accused about "each and every piece of evidence led by prosecution."

In accordance with section 342, Cr. P. C. the circums tances which appear to the Court to point to the guilt of the accused should be put to him so that he may have an opportunity of explaining them if he can. This general proposition cannot, however, answer the question as to what pieces of evidence, direct or circumstantial, the Court has to question an accused person about, in order to afford him the opportunity provided for his benefit by law. It is not necessary, however, to question the accused about each and every piece of evidence led by the prosecution.

An unduly detailed examination of an accused person under section 342 which savours of cross‑examination is open to objection.

S. 289 read with S. 342‑Examination of accused‑Accused denying ownership as well as recovery from him of firearm from which empty cartridges found by Police at site of crime were alleged to have been fired Failure of Sessions Judge to question accused about empties‑No reason for remanding case‑Question, held, redundant and irrational -[Criminal Appeal No. 767 of 1958 dissented from].

‑Division Bench of High Court not obliged to follow view of another similar Bench, or to refer case to Full Bench‑[Bashir Ahmad etc. v. The State P L D 1960 Lah. 687 ref.]

S. A. Rahman and Ch. Muhammad Anwar for Appellant.

Ejaz Hussain Batalvi for Respondent.

Date of hearing :11th October 1960.

.‑Jemal, son of Irani, aged about 60 years, was tried by the learned Sessions Judge, Bahawalpur, under section 302 of the Pakistan Penal Code, for killing five persons in the courtyard of his father's house and found guilty was sentenced to death. Jemal has presented this appeal while Mian Muhammad Saleem, Sessions Judge; Bahawalpur, who passed that sentence on the 8th of August 1959, has referred the case to this Court for confirmation of the sentences of death as enjoined by section 374 of the Code of Criminal Procedure. The appeal and the reference for confirmation will be disposed of by this order.

2. The occurrence out of which the case arises occurred on the night between the 25th and 26th of June 1958 in village Chhateka in the district of Bahawalnagar and a report about it was registered at Police Station Mandi Sadiq Ganj at 7 a.m. on the 26th of June 1958. The motive given in the first information report was that Irani, the father of the appellant, had gifted away his property which consisted of about 25 squares of land to his heirs other than the appellant whose attempts to have the mutations in the revenue records with regard to the gifts rejected had failed a couple of days before the incident.

3. At the trial the prosecution produced Irani (P. W. 12), Ghulam Muhammad (P. W. 13), Muhammad Asghar (P. W. 14), Chiragh (P. W. 15), Mst. Jannat (P. W. 16), Mst. Malkani (P. W. 17) and Mst. Bakhshai (P. W. 20) as eye‑witnesses of the occurrence. All the above witnesses except Mst. Bakhshai (P. W. 20) supported the case for the prosecution and deposed to having seen the appellant armed with a firearm in the courtyard of his father, Irani, shooting at some of the inmates of the house. The persons killed were Jamu Khan, a brother of the appellant, Mst. Elahi Sen, wife of Jama Khan, Muhammad Amin, a five year old son of Jamu Khan, Muhammad Bashir, aged about 2 years, another son of Jamu Khan, and Ilyas, a son of Lalu, another brother of the appellant, and the eye‑witnesses deposed about these persons having been killed with shots from a rifle by the appellant. In addition to this direct evidence, the prosecution produced evidence that the rifle was recovered from the appellant and that eight empty cartridges which were recovered from the scene of the occurrence were fired from this rifle, this being deposed to by Muhammad Ashraf Malik, Assistant Director, Forensic Science Laboratory, Lahore, who appeared as the second witness for the prosecution at the trial.

4. When questioned by the Committing Magistrate and the learned Sessions Judge to explain the prosecution evidence against him, the appellant said that he was innocent. He was asked whether the rifle which was produced at the police station along with him by Abdul Aziz P. W. was his and his reply was in the negative. The Committing Magistrate had asked the appellant whether he had produced the rifle before the police and to this question he had answered in the negative. The first question which the learned trial Judge asked the appellant when questioning him was whether he had made the statement read out to him and the answer of the appellant was in the affirmative and that the statement was correct. Four witnesses were produced in defence, namely, Ata Muhammad (D. W. 1), Usman (D. W. 2), Qadir Bakhsh (D. W. 3) and Munir (D. W. 4). The gist of the evidence of these defence witnesses was that the appellant had been falsely implicated and that three Sikhs who were partners of Jamu Khan in a trade of smuggling of goods had killed the five victims in the house of Irani on the night in question. The defence evidence was not accepted by the learned trial Judge, and after going through it carefully I find no ground for differing from the conclusion of the learned trial Judge with regard to the evidence of the defence witnesses.

5. The first point taken up by Chaudbri Muhammad Anwar, one of the two learned counsel for the appellant, was that the trial suffered from a defect and the conviction of the appellant must be set aside for that reason. The matter pointed out as a defect by the learned counsel for the appellant was that the appellant had not been questioned by the learned trial Judge about the empty cartridges recovered from the scene of the murders in spite of the fact that the circumstance that those cartridges were fired from the rifle alleged to have been recovered from the appellant was of great importance and had been used by the learned trial Judge as evidence pointing to the appellant as the murderer. In support of his contention that it was incumbent on the learned trial Judge to afford the appellant an opportunity to give an explanation about the empty cartridges recovered from the scene of the occurrence, learned counsel, for the appellant referred to two decisions of this Court, the first being the judgment dated the 20th of April 1960 of a Division Bench consisting of Abdul Aziz Khan and A. R. Khan, JJ. in Criminal Appeal No. 767 of 1959 (Murder Reference No. 197 of 1959) which was written by the former and concurred in by the latter, and the second that of Abdul Aziz Khan and Ortcheson, JJ., dated the 30th of April 1956, in Criminal Appeal No. 567 of 1956 (Murder Reference No. 142 of 1956) which was written by the latter and concurred in by the former. As the learned counsel for the appellant did not address any arguments of his own with regard to the question raised by him and relied entirely on the above mentioned two decisions, it is necessary to consider whether in view of those decisions it is imperative that the prayer of the learned counsel for the appellant that the case should be sent back to the trial Judge for further examination of the appellant and for taking such evidence in defence as may be produced, should be accepted. Each of the two decisions relied upon by the learned counsel for the appellant intended to lay down that section 342 of the Code of Criminal Procedure had not been complied with in the case disposed of by it. Only the first subsection of this section is relevant to the present discussion. That subsection is in the following terms :‑

"342 (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."

6. There can be no dispute about the proposition that the circumstances which appear to the Court to point to the guilt of the accused should be put to him so that he may have an opportunity of explaining them if he can. This general pro position cannot, however, answer the question as to what pieces of evidence, direct or circumstantial, the Court has to question an accused person about in order to afford him the opportunity provided for his benefit by law. That it is not necessary to question the accused about each and every piece of evidence led by the prosecution can hardly be open to question. No one, for example, can say that it is the duty of the‑Court to tell the accused the names of all the witnesses who have given evidence against him and to point out that some of the witnesses are entirely indepen dent. Nor would anyone assert that the pros and cons of each statement made against the accused must be explained to him. If the examination of an accused person under section 342 of the Code of Criminal Procedure concerns itself with minutest details, there would be no difference between it and the cross‑examination of a witness the right of which the law allows to the party against whom a witness appears. An unduly detailed examination of an accused person under section 342 of the Code of Criminal Procedure which savours of cross‑examination is open to objection and has attracted the disapproval of many eminent Judges in the past.

7. The facts of the present case, in so far as the empty cartridges go, are the same in material respects as those of the case disposed of by Abdul Aziz Khan and A. R. Khan, JJ., namely Criminal Appeal No. 767 of 1959 (Murder Reference No. 197 of 1959) because in that case as in the present one the empty cartridges recovered from the scene of the murder in the absence of the accused were deposed to by an expert to have been fired from the weapon which was alleged by the prosecution to belong to the person who was standing his trial for murder. In that case, as in the present one, the accused had been asked whether the weapon shown to him was his and the accused in that case as in this case denied that the weapon was his and also denied that the weapon was produced by him. If, therefore, the decision given by the Division Bench which heard the 1959 case was correct and is binding on this Bench, the course followed in that case, namely, that the conviction be set aside and the case sent to the trial Judge so that he may ask the accused persons questions about the empty cartridges recovered from the scene of the crime, may have to be followed in this case and shall have to be followed in the lower Courts. Consequently the reasoning of the learned Judges who disposed of the cases relied upon will have to be examined unfortunately, the judgment in Criminal Appeal No. 767 of 1959 does not give any reasons for the conclusion arrived at except this that a similar view was taken in Criminal Appeal No. 567 of 1956 (Murder Reference No. 142 of 1956) as is clear from the sixth and the last paragraph of the judgment which I here reproduce :‑

"The above statement of facts would show that the crime cartridges Exhs. P. 13/1‑2 had been fired from the gun Exh. P. 15 recovered from Jahani appellant. The recovery of the crime cartridges at the spot is, therefore, a very important piece of evidence against Jahani appellant, In the circumstances, it was necessary to draw the attention of Jahani appellant to the recovery of the crime cartridges when he was examined under section 342 of the Code of Criminal Procedure in order to give him an opportunity to give any explanation he may wish to offer of the presence of this incriminating evidence against him. He was merely asked whether he had produced the gun Exh. P. 15. No question was, however, put to him with reference to the recovery of the empty cartridges Exhs. P. 13/1‑2 from the spot. Following the judgment in Murder Reference No. 142 of 1956, we set aside the convictions and sentences of the appellants and sent back the case to the Sessions Judge, Gujranwala, and direct him to proceed according to law. This is an old case and, if possible, steps should be taken to conclude the trial during May 1960."

8. Here an unexpected complication arises by reason of the fact that though Abdul Aziz Khan, J. was a member‑and indeed the senior member‑of the Bench which heard the 1956 case, and the one which heard the 1959 case, he and A. R. Khan, JJ., while dealing with Criminal Appeal No. 767 of 1959, overlooked that the facts of Criminal Appeal No. 567 of 1956 (Murder Reference No. 142 of 1956) were distinguishable from those of the case before them because while in the 1956 case the accused person had admitted the possession of the weapon from which, according to the evidence led by the prosecution, the empty cartridges found at the scene of the crime had been fired, in the 1959 case the accused had denied the ownership of the weapon and its recovery from him. The facts of the 1956 and 1959 cases were, therefore, so different in material respects from each other that the 'decision in the former could hardly be used as a precedent in the latter. If an accused person admits that he was found in possession of a firearm from which empty cartridges recovered from the scene of the crime are proved to have been fired, the trial Court should question him about the circum stance that the weapon was used at the scene of the crime which circumstance would point to his guilt unless he offered a convincing explanation. But the question which arose in Criminal Appeal No. 767 of 1959 and arises in the present appeal is whether it was necessary for the trial Judge to put a specific question to the accused about the empty cartridges recovered from the scene of the crime which according to the evidence led by the prosecution were fired from the weapon about the recovery of which from the accused the prosecution has led evidence, but the accused has denied the recovery of the weapon as well as its ownership. It is clear that such a question asked in the circum stances mentioned in the last sentence is not free from redundancy and can afford the accused person an opportunity to make an inquiry in his turn how the question arises in the face of his answer that the weapon was not his and was not recovered from his possession. The only other question which could possibly have been asked from the accused person about the empty cartridges would have been whether they were recovered from the scene of the crime and to that question the retort of the accused could be that as he was not alleged to have been present at the time when the empty cartridges are alleged to have been recovered, the question of whether he knew about their recovery could not possibly arise. For these reasons I am clear in my mind that in the circumstances of this case it was not necessary for the trial Court so ask the accused any specific question about the empty cartridges recovered from the scene of the crime. But even if it be held that, as a measure of abundant caution, the learned trial Judge should have asked the accused questions about the empty cartridges‑the exact form of the questions which may be rational in the circumstances I confess I am not in a position to suggest I would hold that the omission of the learned trial Judge to ask the question does not justify an order of remand of the case to the trial Court for doing what was not necessary to be done at the original trial.

9. Chaudhri Muhammad Anwar, Advocate, the learned counsel for the appellant next urged that as a Division Bench had taken a certain view in Criminal Appeal No. 767 of 1959, this Division Bench could not take a contrary view and if the view taken in the 1959 case was considered untenable, it was the duty of this Division Bench to refer the case to a larger Bench so that the law may be authoritatively laid down. I am clearly of the view that this contention is without force. Precisely the same question was considered in Bashir Ahmad etc. v. The State (P L D 1960 Lah. 687), in which a judgment of Abdul Aziz Khan and A. R. Khan, JJ. with regard to another aspect of section 342 of the Code of Criminal Procedure was considered and in the leading judgment delivered by me I expressed the view, which was concurred in by Sajjad Ahmad, J. that a decision of a Division Bench was not binding on another Division Bench. It is unnecessary to give here elaborate reasons for that view and all that need be said is that it is not obligatory for a Division Bench if it does not agree with the views of another Division Bench to follow the views it does not agree with, and in case it is not prepared to do this, to refer the case to a Full Bench.

10. I will now take up the consideration of the case on merits. I have indicated already that all the eye‑witnesses produced by the prosecution except one were at one in saying that the appellant was the person who by means of a firearm caused fatal injuries to the five murdered persons. The only witness who does not support this case is Mst. Bakhshai, one of the two widows of Lalu, a brother of the appellant, who even denied that she bad made a report at the police station. The learned trial Judge appears to have been of the view that the first information report was recorded in the village where the five murders took place and not at the police station, but having considered the entire evidence and the circumstances of the case, I cannot bring myself to agree with this finding. On the one hand, there is the word of Mst. Bakhshai (P. W. 20) who disowned all knowledge of the contents of the first information report, and on the other there is that of Habib Ahmad, A. S.1. (P. W. 21), who said that she had made the report to him and had admitted it to be correct before thumb‑marking it. I prefer the statement of the police officer to that of Mst. Bakhshai (P. W. 20). The reason why Mst. Bakhshai was not prepared to support the prosecution case was twofold. One reason was that neither of her two sons had been done to death by the appellant, but the more important and significant reason came out in the statement of her son, Ata Muhammad (D. W. 1) who admitted in cross‑examination that his grandfather Irani had cancelled the gift which he had made in his favour and that of his brother and had taken back the land from them. This act on the part of the father‑in‑law of Mst. Bakhshai appears to have incensed her and she thought that by refusing to support the prosecution case according to which a son, a daughter- in‑law and three grandsons of Irani were murdered, she was taking her revenge from Irani.

11. No reasonable ground has been shown by the learned counsel for the appellant why the witnesses who deposed in clear terms that they had seen the appellant commit the murders should have given false evidence to this effect against him. All that the learned counsel for the appellant could point to was an entry in some register by Ayub Khan, Sub‑Inspector of the Desert Rangers posted at Bahawalnagar, who appeared as the fifth witness for the prosecution at the trial. According to this entry, Ayub Khan had, on hearing reports of firearms, gone to the scene of the occurrence and had there learnt that Mst. Bakhshai was an eye witness. All that this officer appears to have been concerned with was to see that nothing that was his duty to prevent had occurred, namely, that there had been no attack by Indians across the border, and he does not appear to have shown the interest which a police officer concerned with detection and investigation of crimes would have shown. This is clear from the fact that his report was to the effect that there had been five or six murders. This indefiniteness about the number of victims makes it clear that the officer heaved a sigh of relief when he learnt that it was not an attack by someone across the border, and did not concern himself any further with the murders which the police had to deal with in the exercise of their functions and the discharge of their duties. Ayub Khan (P. W. 5) said in clear terms that he had been told at the spot that Irani, the father of the appellant, was one of the witnesses. There is no reason to think that this officer who is shown to be entirely independent, was giving false evidence against the appellant.

12. The defence case that it was some Sikhs who had fired at the five murdered persons receives a fatal blow on the head from the circumstance that all the empty cartridges recovered from the scene of the murders were proved to have been fired from one firearm. If there had been three firearms, as there ought to have been if there were three murders, one would have found cartridges fired from a firearm other than the one produced in the case lying near the scene of the occurrence. As the ocular evidence against the appellant is overwhelmingly strong, it is not necessary to consider whether the evidence regarding the recovery from the appellant of the rifle and that of empty cartridges from the scene of the murders is reliable. But I wish to make it clear that even if these recoveries were the only evidence against the appellant, it would not have been imperative to question him about the empty cartridges as he had disclaimed his connection by ownership or possession with the rifle.

13. In view of what I have said above, I hold that the prosecution had proved beyond reasonable doubt that it was at the hands of the appellant that his five relatives received gunshot injuries. The evidence of Dr. Ali Muhammad P. W. which it is unnecessary to detail makes it clear that the injuries received by the five victims were fatal in the ordinary course of nature and were the cause of death in each case, and as there is no reason to doubt that evidence the appellant is proved to have committed the five murders for which he was tried. It was as dastardly an act as could be conceived and I am inclined to think that judicial history does not provide another instance of such mass killing of relatives for sordid motives. As the case clearly falls under section 302 of the Pakistan Penal Code no occasion arises for not exacting from the appellant the extreme but normal penalty provided by law for intentional murder. Consequently, I would, dismissing the appeal in its entirety, confirm the sentence of death.

‑ I agree.

A. H. Appeal dismissed.

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