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Criminal Appeal No. 37 of 1959. decided on 22nd October 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 26th February 1959, in Criminal Appeal No. 574 of 1958).

(a) Special leave to appeal to Supreme Court-Copy of approver's statement under S. 161, Cr. P. C., not supplied to accused in terms of S. 162, Cr. P. C.-Copy offered to counsel, at hearing of appeal in High Court, but counsel refusing to take copy-Statement read out in Court, and High Court assuring counsel that any contradictions would be taken as having remained unexplained-High Court, however, proceeding to find explanations for contradictions-Leave to appeal granted to consider whether procedure adopted was in conformity with law-Constitution of Pakistan (1956), Art. 160.

The substance of the statement of a co-accused, who later turned approver, had been recorded in the police diary by the investigating officer in the course of the investigation. At the trial when counsel for the accused asked for a copy of the statement of the approver made by him during the investigation he was told that no such statement had been recorded by the police under section 161 of the Criminal Procedure Code. The accused was convicted and sentenced to death on the evidence of the approver and circumstantial evidence. In appeal before the High Court, it was contended that a record of the statement of the approver had been made in the course of police investiga tion and that the refusal of a copy of that record for the purpose of cross-examining the approver vitiated the whole trial. A copy of that statement was offered to counsel during the hearing of the appeal but he refused to take it. On this the learned Judges read out to the counsel the substance of the approver's statement to the police and following the precedent in Hazara Singh v. Emperor A I R 1928 Lab. 257 informed him that any contradictions between that: statement and the evidence given by the approver in Court would be taken as having remained unexplained. The High Court discovered one contradiction between the two statements and a discrepancy between his statement to the police and the prosecution evidence Instead of treating these two contradictions as having remained unexplained the High Court proceeded to find an explanation for both.

While giving special leave to appeal (mainly) to consider the question whether the procedure adopted by the High Court was in conformity with law ;

Held, that the right course would have been either to order a retrial if the High Court found that the irregularity had occasioned a failure of justice or to recall the approver, supply a copy of his statement to the defence counsel and direct him to cross-examine the approver.

The mechanical mode of treating the contradictions as unexplained could not be expected to produce the same effect as actual cross-examination on those contradictions which might completely break-down the witness.

Having assured the counsel for the appellant that any con tradictions between the police statement of the approver and his statement in Court would be treated as unexplained, the High Court contravened the assurance by itself discovering an explanation for discrepancies. This was not only contrary to what was decided in Hazara Singh v. Emperor A I R 1928 Lab. 257, but conflicted with the principle governing such situations enunciated by the Privy Council in Pulukuri Kotayya and others v. King-Emperor 74 I A 65.

Pulukuri Kotayya and others v. King-Emperor 74 I A 65 rel.

Hazara Singh v. Emperor A I R 1928 Lab. 257 considered.

Their Lordships of the Supreme Court, however, after con sidering the question whether to order a re-trial or whether the conviction could be maintained even if the evidence of the approver was excluded, dismissed the appeal inasmuch as conviction of the appellant could safely be maintained on circumstan tial evidence even if evidence of the approver was excluded.

(b) Circumstantial evidence-Conviction on evidence of recoveries.

(c) Criminal Procedure Code (V of 1898), S. 162 read with S. 537-Omission to supply to accused at trial copies of statements of witnesses recorded in police investigation-Copies supplied at hearing of appeal-Irregularity whether curable under S.537, Cr. P. C.

Omission to supply to accused copies of statements of prosecution witnesses recorded in course of police investigation is an irregularity within the kind of curable irregularities mentioned in section 537 of the Code of Criminal Procedure. Where no copy was ever supplied at the trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an irresistible inference of prejudice. The inference, however, is not irrebuttable where a copy is supplied to the accused in appeal and its contents are known to the Court and the counsel for the accused is unable even to suggest that cross-examination of the witness as to an alleged omission or contradiction might have led to a breakdown of the witness or a material part of his testimony. The Court cannot set aside the conviction inasmuch as the matter is governed by section 537, Cr. P. C.

A retrial or exclusion of a witness's testimony is not the necessary result of a refusal to supply a copy of the police statement of a witness to the accused.

Pulukuri Kotayya and others v. King-Emperor 74 1 A 65 and Subramania 1yer's case 1901 L It 28 1 A 257 ref.

M. Anwar, Advocate Supreme Court, instructed by M. A. Rahman, Attorney for Appellant.

Jamil Hussain Rizvi, Advocate-General, West Pakistan (Maulvi Mushtaq Hussain, Advocate Supreme Court with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing: 22nd October 1959.

.-This is an appeal by special leave from a judgment of the High Court of West Pakistan at Lahore dismissing the appeal of Faiz Ahmad appellant from a sentence of death for the murder of Muhammad Ashraf.

Muhammad Ashraf left his village Chak 10/M. L. for Piplan, a few miles away, after his evening meal on 29th October 1957. Next morning his brother Allah Ditta went to Piplan but did not find him either at his house or at his shop. Returning to his village Allah Ditta informed the Lambardar who taking with him some villagers including Allah Ditta set out to look for Muhammad Ashraf. In the course of the search they came to a spot on the bank of a canal where they found some drops of blood and the tracks of a bicycle ending on the edge of the canal. The party traced back the track along which there were drops of blood to a cotton field situate beside the road from Chak 10/M. L. to Piplan. Entering the field they found that at one spot cotton plants had been trampled upon. There was blood in several places and a handkerchief and a cigarette lighter of Muhammad Ashraf were lying on the ground. A spent pistol cartridge also lay nearby. Suspecting foul play Allah Ditta went to police station Piplan where at 8 o'clock in the evening he lodged a report stating that on the preceding day the Naib-Tebsildar had come to Chak 10/M. L. to settle a dispute between himself and one Muhammad Sharif, but no settlement had been effected, that his brother Muhammad Ashraf had left for Piplan after the evening meal on a bicycle to which was tied a bag containing some stationery and a few items of wearing apparel including a latha chadar, that Muhammad Ashraf had not reached Piplan and that on a search being made for him the search party had traced the track of a bicycle, along which there were marks of blood, from the canal bank to a cotton field in which they had found some signs of a struggle, several places stained with blood, a fired cartridge of a pistol and a handkerchief and a cigarette lighter of Muhammad Ashraf. The informant suspected one Muhammad Sharif to have murdered his brother. Next morning the Sub-Inspector took up the investigation and from the spot where the track of the bicycle ended on the canal bank he traced dripped blood further along the canal bank and then along a minor and leading to a school building where there were some more drops of blood. On the following day the trail of blood led to the house of Muhammad Hussain, the brother of Faiz Ahmad appellant where the appellant himself was lying on a charpoy in a cattle shed. The appellant was found to have two severe wounds caused with a sharp-edged weapon on the dorsum of one of his hands. He was arrested and led the investigating officer and other persons to a place in the field of his brother where he pointed to a spot from which was disinterred a gunny bag containing several clothes including a chaddar of Muhammad Ashraf which was all stained with human blood. On the 3rd November the appellant pointed out a place in the cattle shed of his brother from where a knife having human blood on it was recovered. The bag which Muhammad Ashraf had tied to his bicycle when he left was recovered at the instance of the appellant from a bush on a canal minor. The bicycle itself was recovered from the canal about 2,000 karams lower down from the spot where its trail had ended on the canal bank.

The police also arrested one Ghulam Muhammad who sub sequently became an approver and gave evidence at the trial deposing how he and the appellant had murdered Muhammad Ashraf in the cotton field and taking his body after wrapping it up in a chaddar and tying the bundle to the bicycle had thrown it into the canal. According to Ghulam Muhammad, Muhammad Ashraf was intercepted on his way, was first fired at by the appellant with a pistol and then killed with knives by the appellant and himself, the appellant accidentally receiving two knife strokes on his hand from Ghulam Muhammad in the process. The motive for the murder was stated by him to be that Muhammad Sharif had stolen some money from a box which the appellant had entrusted to him.

Despite search the body of Muhammad Ashraf was never found.

The investigating officer had incorporated in the police diary the substance of the statement made by Ghulam Muhammad approver in the course of the investigation. At the trial when counsel for the appellant asked for a copy of the statement of the approver made by him during the investigation he was told that no such statement had been recorded by the police under section 161 of the Criminal Procedure Code. The appellant was convicted and sentenced to death on the evidence of the approver and the circumstantial evidence mentioned above. In appeal it was contended for the appellant that a record of the statement of the approver had been made in the course of police investigation and that the refusal of a copy of that record for the purpose of cross-examining the approver vitiated the whole trial. A copy of that statement was offered to the learned counsel for the appellant during the hearing of the appeal but he refused to take it. On this the learned Judges read out to the counsel the substance of the approver's statement to the police and following the precedent in Hazara Singh v. Emperor (A I R 1928 Lah. 257), informed him that any contradic tions between that statement and the evidence given by the approver in Court would be taken as having remained unexplained. The learned Judges discovered one contradiction between the two statements and a discrepancy between his statement to the police and the prosecution evidence. The approver had stated to the police that the knife which he had used in killing the deceased had been left in the field though as a matter of fact the approver himself had led to the discovery of that knife in the course of police investigation. Further the approver had stated to the police that the appellant had thrown his pistol in the cotton field but no such pistol was found by the police in that field. Instead of treating these two contradictions as having remained unexplained the learned Judges proceeded themselves to find an explanation for both. As regards the knife they said that the approver might not have been willing, in the first instance, to produce the knife and might therefore have told a lie when he said that it had beer left in the cotton field. As regards the pistol they said that there was in fact no contradiction between the statement of the approver to the police and his statement at tine trial because the pistol had not been recovered in the course of police investigation and thought that the appellant might have picked it up from the field when he and the approver had returned to the field and carried the body of' the deceased on the bicycle to be thrown into tile canal. Special leave to appeal in this case was given mainly to consider the question whether the procedure adopted by the High Court was in conformity with law.

There cannot be the slightest doubt that having assured the counsel for the appellant that any contradictions between the police statement of the approver and his statement in Court would be treated as unexplained, the learned Judges contravened the assurance by themselves discovering an explanation for both the discrepancies. This was not only contrary to what was decided in Hazara Singh v. Emperor, but conflicted with the principle governing such situations enunciated by the Privy Council in Pulukuri Kotayya and others v. King-Emperor (74 I A 65): In that case where the statements of pro secution witnesses had been recorded on the same day, first by a Sub-Inspector and shortly afterwards by an Inspector, but at the request of the accused only copies of statements made to the Inspector had been supplied, and copies of the statements made to the Sub-Inspector were supplied only after the witnesses had been cross-examined, and counsel was unable to suggest that there were any contradictions between the two, Sir John Beaumont commenting on the irregularity observed;

" The right given to an accused person by this section (section 162, Cr. P. C.) is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence and in the present case it has to be remembered that the accused's contention was that the pro secution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to section 162 as a matter of gravity. Baliram Tikaram v. King Emperor A I R 1945 Nag. 1, where the record of statements made by witness had been destroyed, and Emperor v. Bansidhar 1930 I L R 53 A. 458, where the Court had refused to supply to tie accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused ".

In view of this principle, the right course for the learned Judges would have been either to order a retrial if they found that the irregularity had occasioned a failure of justice or to recall the approver, supply a copy of his statement to the defence counsel and direct him to cross-examine the approver. The procedure suggested in Hazara Singh v. Emperor is not quite in accordance with the principle underlying the aforesaid observation of Sir John Beaumont because the mechanical mode of treating the contradic tions as unexplained cannot be expected to produce the same effect as actual cross-examination on those contradictions which may completely breakdown the witness. This being our conclusion the question is whether we should order a retrial or proceed to consider whether the conviction can be maintained even if the evidence of the approver is excluded. Having heard learned counsel for the appellant at length we are clearly of the view the circumstantial evidence in this case is so overwhelming that no inference from it is reasonably possible other than that the appellant took part in the murder of Muhammad Ashraf. The missing man has not been heard since. His bicycle to which was tied a rope and a piece of cloth was recovered from the canal. One of the clothes which he carried with himself in a small bag was recovered from a gunny bag which lay buried and the small bag itself was found hidden in a bush. The clothes in the gunny bag were all stained with human blood, and human blood was also found in the cotton field by which he had to pass on his way to Piplan. From that field were also recovered his handkerchief and cigarette lighter and a fired cartridge lay in that field near the several spots where blood drops had fallen. On these facts, there can be no doubt that Muhammad Ashraf was murdered in the cotton field. The appellant is connected with this murder because the trail of blood starting from the cotton field was traced to the place where he lay with a wounded hand and at his pointing out the bag which the deceased was carrying with himself at the time of his death was recovered and one of the clothes which were. in that bag was recovered from the gunny bag which the appellant had buried in the house of his brother. We are therefore fully satisfied that the conviction of the appellant can safely be maintained even if the evidence of the approver be excluded.

Lest we should be misunderstood and this judgment be taken to mean that a retrial or exclusion of a witness's testimony is the necessary result of a refusal to supply a copy of the police statement of the witness to the accused, we must point out that the irregularity contemplated is within the kind of curable irregularities mentioned in section 537 of the Code of Criminal Procedure. Where no copy was ever supplied at the trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an irresist ible inference of prejudice. The inference, however, is not irrebuttable and where as here a copy is supplied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused is unable even to suggest that cross-examination of the witness as to an alleged omission or contradiction might have led to a breakdown of the witness, or a material part of his testimony, the Court cannot set aside the conviction inasmuch as the matter is governed by section 537 of the Code of Criminal Procedure which provides;

"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or an appeal or revision on account-----

(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, . . . . . . unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice."

As pointed out by the Privy Council in Pulukuri Kotaya and others v. King-Emperor, "when a trial is conducted in a manner different from that prescribed by the Code (as in Subramania Iyer's case) (1901LR28IA257) the trial is bad, and no question of curing on irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code." In view of this state of the law, we could as well have ignored the alleged irregularity, but since the circumstantial evidence in the case is quite sufficient to justify the conviction, we have ex abundanti cautela excluded the approver's evidence from consideration.

For the reasons stated above we dismiss this appeal.

A. H. Appeal dismissed.

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