Updated: Tuesday
February 08, 2011/AthThulatha Rabi’ Awwal 05, 1432/Mangalavara Magha 19, 1932, at 10:40:46 PM
P L D 1979 Supreme Court 53
Present : Anwarul Haq, C. J., Muhammad Akram, Dorab Patel, Muhammad Haleem, G. Safdar Shah, Karam Elahee Chauhan and Nasim Hasan Shah, JJ Criminal Appeal No. 11 of 1978
ZULFIKAR ALI BHUTTO-Appellant
versus
THE STATE-Respondent
Criminal Appeal No. 12 of 1978
Mian MUHAMMAD ABBAS-Appellant
versus
THE STATE-Respondent
AND
Criminal Appeal No. 13 of 1978
GHULAM MUSTAFA AND 2 OTHERS-Appellants
versus
THE STATE-Respondent
Criminal Appeals Nos. 11 to 13 of 1978, decided on 6th February 1979.
(On appeal from the judgment and
order of the
Majority view-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.]
(a) Criminal trial-
-- Duty of Court-Contention regarding case being politically motivated in sense of there being an international conspiracy to remove appellant, a former Prime Minister, from power and to eliminate him both physically and politically- Held: Matters extraneous to record of case and to its judicial determination-Fate of case to depend not on motive of those reopening investigation but on strength or weakness of evidence adduced in support of allegations-Requisite evidence, satisfying legal and judicial standards applicable in criminal trials of kind if available on record to prove guilt of appellant beyond reasonable doubt, duty of Court clear, irrespective of political considerations leading to overthrow of appellant’s government and reopening of case thereafter.-[Duty of Court-Evidence].
(b) Criminal trial-
--- Prejudice-Contention that several prosecution witnesses having been examined and cross-examined during absence of appellant due to his illness and High Court having imposed on him exemption from appearance in Court, evidence of such witnesses was inadmissible in evidence and caused appellant great prejudice—Held all witnesses having been cross-examined at length by appellant’s counsel, appellant having met his counsel practically, every day in Jail, presumption arises of cross-examination having been made according to appellant’s instructions, or at any rate with his approval, and appellant not prejudiced in his defence.-[Prejudice-Evidence].
(c) Oaths Act (X of 1873)-
-- S. 13-Solemn affirmation-Contention that a particular prosecution witness’s statement having been recorded on solemn affirmation instead of having been sworn on Bible due to such witness having been a Catholic Christian, such witness be recalled for cross-examination---Held: Witness having declared in open Court to have converted to Islam and such statement having not been questioned in crossexamination and appellant’s counsel having admitted conversion of witness to Islam for a brief period to be able to marry a Muslim lady, prayer for recall of witness not only misconceived but also belated: and, in view of lengthy cross-examination of witness, appellant not -prejudiced-Even otherwise, held further, no objection could be taker, to witness’s evidence in view of S. 13 of Oaths Act 1813- witness-Prejudice].
(d) Judicial Proceeding
--- Boycott of----Word ‘boycuo’-Unknown in legal system of Pakistan--failure to summon particular Witnesses because of appellant’s boycott of proceedings---Hardly a ground to be urged in support of application prying for summoning of Witnesses-Appellant even if having a valid grievance against conduct of trial by Court, held, ought not have boycotted proceedings but should have placed on record his written objections pinpointing his reasons for his apprehension of not getting a fair trial-Even otherwise, held further, object of summoning such witnesses effectively achieved due to witnesses having produced desired ammunition vouchers and being extensively crossexamined on behalf of appellant.-[Words and phrases-Witness---Practice and procedure].
(e) Criminal trial----
--- Separate trials-Complaint case and Challan case-Neither two sets of accused nor different versions nor any additional evidence to be examined by complainant-No necessity, in circumstances, for separate trials of two cases-Procedure adopted in precedent case of ordering complaint case to be tried first before taking up challan case devised only to avoid prejudice to complainant but such course not directed to be followed invariably.-[Separate trials-Prejudice].
I W L R 965 (P C) ; Corpus Juris Secundum, Vol. 22-A, S. 718, p. 998 ; Sm. Bibhabati Devi v. Rarnendra ,Varayan Roy and others A I R 1947 P C 19 ; Umrao Singh and others v. State of M. P. A I R 1961 Madh. Pra. 45 ; Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1975 S C 57 ; Keolapati v. Raja Amar Krishan Narain Singh A I R 1939 P C 249 and Mohan Singh v. King-Emperor A I R 1925 All. 413 ref.
Malik Muhammad Ishaque v. Messrs Erose Theatre and others P L D 1977 S C 109 ; Emperor v. Nga Hlaing A I R 1928 Rang. 295 ; Gulzaman Khan v. Emperor A I R 1935 Pesh. 73 ; Kashi Nath Panday v. Emperor A I R 1942 Cal. 214 ; Venkata Reddy v. Emperor A I R 1931 Mad. 689; Sh. Aslauddin v. Emperor A I R 1938 Cal. 399 ; Channu and others v. Emperor A I R 1948 Cal. 125 ; Khurshld Ahmad v. Maqbool Ahmad P L D 1964 Kar. 356 and Puhlwan and 4 others v. The State P L D 1975 Kar. 847 distinguished.
[Per G. Safdar Shah, J. Muhammad Haaleem, J., agreeing]
(f) Evidence Act (I of 1872)-
----S. 60--Hearsay evidence, rejection of-Underlying principle of S. 60-To reject all hearsay evidence in proof of any fact susceptible of direct evidence by a witness capable of speaking from his own knowledge-Evidence of a witness stating having been told so and so by though admissible in proof of fact of such statement having been actually made by to witness yet inadmissible in proof of contents of such statement unless himself appeared as witness and affirmed truth of what he told to witness-Evidence of approver M in regard what another told him, hence, in nature of hearsay and inadmissible in evidence in respect of its truth.-[Evidence-Approver].
Coleman v. Southwick 9 John 50
Monlr on Law of Evidence, 1974 Edn., p. 692 ; Khurshid Ahmad v. Kabool Ahmad
and others P L D 1964 Kar. 356; Santa Singh v. Sate of
Sm. Bibhabati Devi v. Ramendra Narayan Roy and others A I R 1947 P C 19 and Subramaniam v. The Public Prosecutor P L D 1958 P C 100 distinguished.
Majority view-[Per Anwarul ‘ Haq, C. J., Muhammad Akram, Karam
Elahee Chauhan and Nasim Hassan Shah, JJ.]-
(q) Evidence Act (I of 1872)-
-- S. 10-Conspiracy-Agency-Conspirator considered to be agent of his associates in carrying out objects of conspiracy-Anything said, done, or written by him, during continuance of conspiracy in reference to common intention of conspirators-Held, a relevant fact against each one of his associates for purpose of proving conspiracy as well as for showing his being a party to conspiracy-Each one of conspirators an agent of others in carrying out object of conspiracy and in doing anything in furtherance of common design-Penal Code (XLV of 1860), S. 120-A-[Conspiracy-Common Object-Agency-Common Intention]. [H. H. B. Gill and another v. The King A I 81948 P C 123 and Maqbool Hussain v. The State P L D 1960 S C 382 held not applicable].
In criminal law a party is not
generally responsible for the acts and declarations of others unless they have
been expressly directed, or assented to by him “nemo
H. H. B. Gill and another v. The King A I R 1948 P C 128 and Maqbool Hussain v. The State P L D 1960 S C 382 held not applicable.
(h) Evidence Act (I of 1872)-
-- S. 10-Application-Section 10 regulates mode
of use of evidence at time of its evaluation rather than sequence in which such
evidence produced in Court-Facts
in issue in cases under S. 10 : Whether agreement existed for alleged purpose
and, secondly whether accused a party to same-Evidence in support of either, held, may be given first
and need not be given all at once in one stretch. -[Badri Rai and another v. The State of
Section 10 of the Evidence Act rather regulates the mode of the use of the evidence at the time of its evaluation rather than the sequence in which it is produced in Court.
The methodology employed in the actual application of section 10 of the Evidence Act is fully demonstrated in these cases to the effect that its actual application follows and does not precede the finding that there is reasonable ground to believe that a conspiracy exists and certain persons are conspirators. It merely speaks of the use of evidence in the case, and the section does not control the sequence in which the evidence should be, let in. It appears to that these are but only two phases in the exercise of the application of section 10 of the Act, and not two distinct and separate stages laying down the order in which evidence is to be led. In the initial phase and as a condition precedent under this section, the Court has got to find from evidence aliunde on the record that there are reasonable grounds to believe that two or more persons have conspired together to commit an offence or an actionable wrong. After having passed this test, the next phase in the exercise consists in the actual application of the operative part of this section whereby anything said, done or written by any one of such persons in reference to their common intention, during the continuance of the conspiracy, is treated as a relevant fact against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of conspiracy as also for the purposes of showing that any such person was a party to it. In fact this section deals with the mode of evaluation and the use of the evidence brought on the record. It does not provide that the proof of existence of the conspiracy must necessarily precede any proof of the acts and declarations of the co-conspirators of the accused for use against them.
To sum up, it will be seen that the facts in issue in a case under section 10 of the Evidence Act are, whether there was an agreement for the alleged purpose and whether the accused was a party to it. Evidence in support of either may be given first. It may be that evidence is first allowed to go on the record about anything said, done or written by one of the accused in reference to their common intention during the continuance of the alleged conspiracy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable grounds to believe about the very existence of the conspiracy and the partners in it. This curse in thus provisionally admitting the evidence has a merit in it and is conducive to the expeditious disposal of the trial and suited to the prevailing conditions in this country where the delays in the administration of justice have become proverbial, and more especially because, as in this case, the trial is not by jury. There can be nothing wrong in the course adopted at the trial in recording the evidence at a stretch and not in two separate instalments.
Bhagwan Swarup Lal Bishan Lal and
others v. The State of
Badri Rai and another v. The
State of
(i) Evidence Act (I of 1872)-
--- S. 10-Words “reasonable ground to believe”-Reflect a state of mind where lurking doubts, if any, get dispelled and an amount of conviction and assurance developed in their place giving rise to a belief based on some reasons although not fully ripened into absolute certainty or proof.-[Words and phrases-.Conspiracy].
V -Mould Fuzlul-Quadar Choudhnry v. Crown P L D 1952 F C 19 and Niamat Singh and others v. Stare I L R 2 All. 25 ref.
(i) Evidence Act (I of 1872)-
-----S. 10-Conspiracy-Evidence-Admissibility-Witness in case of conspiracy may, in reference to common intention of conspirators, give evidence about things said, done, or written by one of conspirators during existence of conspiracy-Approver granted pardon being a competent witness, section 10, held, does not cease to apply to anything said, done, or written by a conspirator during relevant period simply for reason of conspirator giving evidence as approver---Penal Code (XLV of 1860), S. 120-A.-[Evidence - Witness -Approver-Common intention-Conspiracy].
On a plain reading of section, 10 of Evidence Act it is clear that things said, done or written by one conspirator in reference to their common intention to be admissible against his co-conspirator, must have taken place when the conspiracy is still in existence or in progress. Hence, a declaration or act of one of the„ conspirators is not admissible in evidence against the other members of the conspiracy, if it was made after termination of the conspiracy. In this connection, there are two necessary requirements to be fulfilled, viz., that it must be (a) in reference to their common intention, and (b) when the conspiracy is still in existence or in progress, before its termination. If these requirements of the section are fulfilled, in a case of conspiracy, a witness may give evidence about the things said, done or written by one of the conspirators in reference to their common intention, during the existence of the conspiracy, so as to be admissible against the other co-conspirators. An approver to whom pardon has been granted is a competent witness. Therefore, section 10, does not cease to apply to anything said, done or written by a conspirator, during the relevant period, simply because that conspirator gives evidence as an approver.
Vishindas Lachmandas and others
v. Emperor A I R 1944
Queen v. Blake (1844) 6 Q B 125 and Mirza Akbar v. King-Emperor A I R 1940 P C 176 distinguished.
Minority view-[Per G. Safdar Shah, J., Muhammad HAeem, J., agreeing]--
(j) Evidence Act (I of 1872)---
S. 10-Express evidence given by approver M not only not establishing existence of conspiracy between him and appellant Z, but only at best an abetment on latter’s part, all evidence brought on record under S. 10 under assumption of existence of criminal conspiracy, held, cannot be looked into.-[Conspiracy -Approver-Abetment].
Maqbool Hussain v. The State P L
D 1960 S C 382 ; Balmukand v. Emperor A I R 1915 Lab. 16 ; Kunialal Ghose v.
Emperor A I R 1935 Cal. 26 ; Vishandos Lachmandas and others v. Emperor A I R
1944 Siad 1 ; H. H. B. Gill and another v. The King A I R 1948 P C 128 ; Badri
Rai and another v. State of Bihar A I R 1958 S C 953 ; Bhagwan Swarup v. State
of Maharashtra A I R 1965 S C 682 ; Emperor v. Percy Henry Burn 4 I C 268 ;
Laijam Singh v. Emperor A I R 1925 All. 405 ; Rajmal Marwadi v. Emperor A I R
1925 Nag. 372 ; Chatru Malik v. Emperor A I R 1928 Lab. 681 ; Shankarshet v.
Emperor A I R 1933 Bom. 482 ; Chandrika Prasad v. Emperor A I R 1930 Oudh 321 ;
Muhammad v. State A I R 1934 Lab. 695 ; Mohanlal Bhanalal Goela, v. Emperor A I
R 1937 Sind 293 and Sardul Singh Caveeshar v. The State of
Khalil Munda and others v. King-Emperor I L R 1901 Cal. 797 distinguished Majority view-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elat ee Chsuhan and Nasim Hasan Shah, JJ.;------
(k) Evidence Act (I of 1872)-
--S. 10’--Applicability of section-Evidence prima facie showing existence of a conspiracy between appellants as well as approvers to commit murder and father of person intended to be killed murdered in execution of conspiracy-Section 10 applicable on basis of such evidence-Question at such stage not whether conviction could be based on evidence of approvers but merely whether it furnished basis for reasonable ground to believe certain persons having conspired to commit a particular offence-Value to be attached to such pieces of evidence and question of their final admissibility in law-Not relevant for purpose of determining question of application of S. 10Cumulative effect of such evidence on mind creating reasonable ground for belief regarding murder being result of conspiracy involving specified persons, requirements of S. 10 for its application, held, fulfilled-Penal Code (XLV of 186001, S. 302/149.-[Conspiracy--Conviction-Approver].
(l) Evidence Act (I of 1872)-
S. 30-Confession of co-accused-Can be taken into consideration not only against its maker but also against other accused persons---Confession however does not amount to proof.-[Confession-Proof].
(m) Evidence Act (I of 1872)-
----S. 30-Word “Confession”-Meaning.----[Words and phrases-Confession.
The word “confession” is not defined in the Evidence Act, but ordinarily a confession is construed as an acknowledgment in express words, by an accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. A statement in order to amount to a confession must either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if, true, would negative the offence alleged to be confessed.
Dial Singh v. Emperor A I R 1963 Lab. 33 ; Sant Ram v. Emperor A I R 1924 Oudh 188 ; Sheocharan v. Emperor A I R 1926 Nag. 117 ; Raghunath v. Emperor A I R 1926 Nag. 119 ; Abdul Jalil Khan and others v. Emperor A I R 1930 All. 746 ; Shambhu v. Emperor A I R 1932 All. 228 ; Pakala Narayan Swami v. Emperor A I R 1939 P C 47 ; Ram Bharose and others v. Rex A I R 1949 All. 132 anal Zahid Hassan Khan and others v. The State P L D 1964 Dacca 600 ref.
(n) Evidence Act (I of 1872)--
- S. 30-Confession-Admission by an accused person of his own guilt-Affords some sort of sanction in support of truth of his confession against others as well as himself -Such considerations, however, held, not applicable for use against its maker when statement partly inculpatory and partly exculpatory.-[Confession-Admission].
Lakhan v. King-Emperor A I R 1924 All. 511 ; Rama Kariyappa Pieh! and others v. Emperor A I R 1929 Bom. 327 ; Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101 ; Bala Majhi v. The State of Orissa A I R 1951 Orissa 168 ; The State v. Jamalan and others P L D 1959 Lab. 442 and Ghulam Qadir v. The State P L D 1960 S C 251 ref.
(o) Evidence Act (I of 1872)-
-- S. 30 read with S. 21 and Criminal Procedure Code (V of 1898), S. 342-No special form specified by S. ?0 for confession-Such confession may take form of a document or other statement such as one under S. 342, Criminal Procedure Code, 1898-Section 30 provides an exception to rule regarding admission being only used against its maker under S. 21, Evidence Act, 1872-While construing S. 30, regard, held, must be had to fact that confession sought to be used against co- accused, like any other piece of prosecution evidence, must be proved before prosecution closes its side so as to provide opportunity to accused to rebut same.--[Confession-Evidence].
Mahadeo Prasad v. King-Emperor A I R 1923 All. 322
; In re Marudamuthu Padayachi A I It 1931
(p) Evidence Act (I of 1872;-
-- S. 30 read with Criminal Procedure Code (V of 1898), S. 342 Confession-Admissibility-Confessional statements made by co--accused duly proved at trial by Magistrate recording such confessions--Confessional statements also put to non-confessing accused during their examination under S. 342, Criminal Procedure Code, 1898 at close of prosecution case-Such confessional statements fully implicating makers thereof and also affecting other appellants-Statements, held, rightly taken into consideration by High Court in terms of S. 30, Evidence Act, 1872-Plea of confessing accused to have done guilty acts under orders and pressure from their superiors, held further, does not detract from self-inculpatory nature of their statements due to their having substantially admitted all incriminating circumstances of offences charged with at trial.-[Confession-Admission].
Bhuboni Sahu v. The King P L D
1949 P C 90 ; Kashmira Sing v. The State of
(q) Evidence Act (I of 1872)-
S. 30-Confession-Admissibility-Confessional statement trying to exculpate himself by laying blame on approvers and incidentally implicating one of appellants in crime-Held, cannot be treated as a confession for purpose of S. 30.-[Confession].
(r) Criminal Procedure Code (V of 1898)-
-- S. 190 (3) [as. amended by Law Reforms Ordinance, 1972] read with Ss. 164 & 337(2)-Confession, recording of-Magistrate not authorised to take evidence in Sessions case due to amended provision of S. 190(3), statement of accused recorded by such Magistrate under S. 164, held, could not be regarded as evidence in case and could at best be previous statement amenable to cross-examination by defence.-[Confession--Evidence].
(s) Criminal Procedure Code (V of 1898)-
-- Ss. 190(3) & 337 (2)-Approver, examination of-Approver now to be examined as a witness only at one stage, vie., at trial-Obligation resting on approver, as a necessary condition of grant of pardon, hence, merely to make a true ‘and full disclosure of events within his knowledge when giving evidence at trial.-[Approver-Witness].
(t) Criminal Procedure Code (V of 1898)-
-- S. 164 (L-A)-Magistrate under no obligation to require presence of accused while recording statement under S. 164-Subsection (1-A) only an enabling provision--Magistrate not choosing to require presence of accused, held, commits no illegality in recording confessional statement inasmuch as such statement cannot be used as substantive evidence against accused not present at time of recording.-[Confession--Evidence].
Balmukand v. Emperor A I R 1915 Lah. 16 ; Bhola Math and others v. Emperor A I R 1939 All. 567 and Emperor v. Shahdinu Dhaniparto A I R 1940 Sind 114 ref.
Mahla v. Emperor A I R 1930 Lab. 95 and In re: Arusami Goundan A I R 1959 Mad. 274 distinguished.
(u) Criminal Procedure Code (V of 1898)-
Ss. 164 & 337-Approver-Penalising of-Commitment proceedings having been abolished, only failure to give evidence before Sessions Court will render approver liable to penal action-Any short. comings or distortions in a statement recorded by Magistrate under S. 164 immediately after grant of pardon, held, cannot render approver liable to penal action or in any manner deprive him of status of approver.-[Approver].
Emperor v. Shahdino Dhaniparto A I R 1940 Sind 114 ref.
(v) Criminal Procedure Code (V of 1898)-
-- S. 339-Approver-Forfeiture of pardon--Approver forfeits pardon only when action initiated by Public Prosecutor under S. 339Allegation by prosecution or def:nce in respect of approver having not made a true and full disclosure of all circumstances of case or of trial Court having held approver to have given false evidence not enough-Question of weight to be attached to approver’s statement separate question altogether and not to be confused with its admissibility.-[Approver].
(w) Evidence Act (I of 1872)-
S. 10 read with Criminal Procedure Code (V of 1898), S. 337Compliance or otherwise with provisions of S. 337-Irrelevant for determination of applicability of S. 10-Approver, held, does not cease to be co-conspirator even if he does not make a true and full disclosure of circumstances of case as required by S. 337.-[Approver].
Minority view-[fPer Dorab Patel, J.]
(1w) Evidence Act (I of 1872)-
-- S. 10 read with Criminal Procedure Code (V of 1893), S. 337Approver admitting having not made full disclosure of facts in his statement under S. 337, Criminal Procedure Code, 1898-Not worthy of reliance.-[Approver].
Majority view - [Per Anwarul Haq, C. J., Mabammad Akram, Karam Elahee Chaulian and Nasim Haman Shah, JJ.]-
(x) Criminal Procedure Code (V of 1898)-
--S. 342-Examination of accused-Putting circumstances appearing in evidence against him-Section 342 although mandatory yet its compliance dependent upon conduct of accused himself Accused frustrating provisions of S. 342 by boycotting proceedings and refusing to answer any questions put to him in relation to his defence-Sixty-seven questions put to accused whereby practically all incriminating pieces of evidence except two mentioned and answers furnished to such 67 questions establishing beyond doubt that even if such two questions were put their answers could not have been different from . those given to 67 questions, omission to put to accused such two questions, held, did not in circumstances cause any prejudice to accused in his defence-Even otherwise, held further, validity of trial not affected unless prejudice shown to have been caused as a matter of fact----Criminal Procedure Code (V of 1898), S. 537.-[Examination of accused -Prejudice].
S. M. K. AM v. Crown P L D 1953 F C 189; Abdus Salam Molla v. Crown P L D 1955 F C 129 ; Munawar Ahmad v. State P L D 1956 S C (Pak.) 300 ; The State v. Tasiruddin P L D 1962 Dacca 46 ; Addl. Advocate-General, West Pakistan v. Abdul Majid P L D 1965 Quatta. 20 ; M. Akbar Khan Bugti v. State P L D 1967 Kar. 186 ; Imam Ali v. State 1975 P Cr. L J 489 ; Gulzar Ahmad v. State 1975 P Cr. L J 1207 ; Rameshan v. Emperor A I R 1936 Nag. 147 ; Dawarka Singh v. Emperor A I R 1947 Pat. 107 ; Mohyuddin v. Emperor A I R 1925 Pat. 414; State v. Zia-ur-Rehman P L D 1973 S C 49 ; Sher Jang v. Emperor A I R 1931 Lab. 178 ; Aft Shan v. Crown P L D 1953 Lab. 14 Abdul Wahab v. Crown P L D 1955 F C 88 ; Ibrahim Bhak v. Crown P L D 1955 F C 113 ; Lalan v. Crown P L D 1955 F C 132 ; M. Yagub v. Crown P L D 1956 F C 143 ; Bashir Ahmed v. State P L D 1960 Lab. 687 Rama Shankar v. State of Bengal A I R 1962 S C 1239 ; Aishah Khatun v. State 1968 P Cr. L J 53 ; M. Sunafar Ali v. Slate 1969 S C M R 461 ; Saleh Muhammad v. State 1971 S C M R 260 ; Ajit Kumar v. State of Bihar A I R 1972 S C 2058 ; Allah Dad v. State P L D 1978 S C 1, Moseh Chaudhary v. West Bengal State A I R 1956 S C 536 and Bimbhadur Prahdan v. State of Orissa P L D 1957 S C (Ind.) 68 ref.
(y) Criminal Procedure Code (V of 1898)-
--- S. 537-Irregularity-Cure of-Court to look to substance and not to technicalities in determining whether an omission, error, or irregular conduct of trial vitiated trial in any manner-Accused fully aware of entire evidence led against him having had fair trial and not prejudiced in defence and refusing to answer questions under a declared stance deliberately adopted-Failure to put to him some pieces of evidence, error, ommission, or irregularity if any stands cured-Distinction between illegality and irregularity-Only one of degree rather than of kind-Nothing, held, turns on such distinction for purposes of application of curative provision of S. 537.-[Words and phrases].
Subramania Iyer’s case 28 I A 257; Abdul Rehman v. Emperor 54 I A 96; Pulukuri Kotayya v. Enaperor A I R 1947 P C 67; Abdul Wahab v. Crown P L D 1955 F C 88 ; Ibrahim Bhak v. Crown P L D 1955 F C 113; Falz Ahmad v. State P L D 1960 S C 8; W. Slaney v. State of Madhya Pradesh A I R 1956 11.6; Gurbachan Singh v. State of Punjab A I R 1957 S C 623; Rahmat v. State14 S C 1968 P Cr. L 135; Wahid Bakhsh v. State 1974 S C M R 219 and Allah Dad v. State P L D 1978 S C i ref.
(z) Criminal Procedure Code (V of 1898)----
--- Ss. 540-A & 205(1) read with S. 353-Exemption of personal attendance of accused-General rule requiring all evidence to be taken in presence of accused-Ceases to be applicable when Magistrate dispenses with personal attendance of accused and permits him to appear by his pleader under S. 205(1) or when under given circumstances under S. 540-A a Judge or Magistrate dispenses with presence of accused in case of his being represented by a pleader, or when an accused absconds-Power to dispense with personal attendance of accused also implicit in, and spelt out of, closing line of S. 353 itself.[Exemption from personal attendance of accused].
Basil Ranger
(al) Criminal Procedure Code (V of 1898)-
S. 540-A-Scope and application-Section 540-A enacted not merely for benefit of accused incapable of remaining before Court but also for benefit of other accused whose trial likely to be delayed unnecessarily for no fault of their own-Section cannot be allowed to be used as a handle in hands of accused incapable of remaining before Court so as to prolong proceedings-Judge or Magistrate, held, may on fulfilment of conditions stated in section, and after satisfying himself as to its propriety, dispense with personal attendance of accused and proceed in his absence-Power and discretion vesting in Court, held further, not contingent upon an application being made by accused.[Exemption from personal attendance of accused].
Sultan Singh Jain v. The State A I R 1951 All. 864 ; Dewul Krishan v. The State A I R 19 4 Pepsu 36 ; Anand Martand and another v. Anant Paudurang A I R 1956 Madh. Bha. 13 and Emperor v. C. W. King 14 Bom. L R 236 ref.
Minority View-[Per Dorab Patel, J.]
(lal) Criminal Procedure Code (V of 1898)-
-- S. 540-A-Illness a calamity beyond control of accused-Merely because illness may render an accused “incapable of remaining before Court”-Does not however mean that Court should exercise its discretion against him and proceed with trial in his absence-Discretion in such respect to be exercised judicially-Prosecution having failed to prove appellant Z’s guilt no prejudice, held, caused by fact of Court having decided to proceed with case in his absence.-[Prejudice]
Majority View - [Per Anwarul Haq, C. J. Muhammad Akram. Karam Eiahee Chauhan and Nasim Hassan Shah, JJ.]
(b1) Criminal Procedure Code (V of 1898)-
-- S. 540-A-Words “incapable of remaining before the Court---Mean not capable of appearing in, or remaining before, Court at hearing to discharge his functions and duties-Accused infirm, too weak, and unfit for reasons of his bad health and illness to appear and remain in Court, held, may be said to be “incapable” of appearing before or remaining in Court at hearing within meaning of S. 540-A.[Words and phrases].
Emperor v. Radha Raman Mitra A I R 1930 All. 817; Kali Das Banerjee and another v. The State A I R 1954 Cal. 576; Trilochan Misra v. State A I R 1953 Orissa 81; Chiman Lai and others v. Parashar Sing A I R 1957 Nag. 101; Webster’s New International Dictionary and Funk & Wagnalls’ New Standard Dictionary ref.,
(cl) Criminal Procedure Code (V of 1898)-
-- S, 540-A read with S. 537-Exemption from personal appearance---Failure to satisfy and record reasons-Medical certificates and applications moved by appellant establishing fact of appellant having fallen ill and unable to appear in Court because of his prolonged illness during relevant period-Appellant, in circumstances, incapable of personally attending and remaining in Court at hearing-Large Bench of five Judges specially constituted for disposal of case on original criminal side of High Court and prosecution evidence recorded almost from day to day (as usual in all murder trials) and importance attached to case and circumstances prevailing in country demanding its being disposed of on merits without inordinate delay, trial Court’s decision to dispense with formal attendance of accused appellant at bearing in Court and to proceed with trial in presence of his counsel, held, fully justified and in face of patent facts obvious on very face of record it could not be contended that trial Bench failed to satisfy itself regarding appellant being incapable of remaining before Court-Section 540-A, held further, though envisages strict compliance with mode of exercise of jurisdiction yet vitiation of trial due to any error, omission, or failure to strictly comply with such prescribed mode not necessarily spelt out and failure to record reasons for satisfaction relating only to form of order and being only procedural any such omission or failure by itself not sufficient to adversely affect substance and merits of order.-[Exemption from personal attendance of accused].
Mirityunjoy Chatterji and others v. The State A I 1,t 1955 Cal. 439; Pulukurl Motayya v. King-Emperor A I R 1947 P C 67; Mohammad Ishaque v. Nur Mahal Begum and others P L D 1961 S C 426; Shahzeda and others v. Malik Shams-ud-Din and others P L D 1977 S C 237; Deputy Legal Remembrancer v. Banu Singh and others (1907) 5 Cr. L J 142; Emperor v. Shama Charan and others 15 I C 1004 ; Bawa Faqlr Singh v. Emperor P I R 1938 P C 266; Rafiq Ahmad v. The State P L D 1958 S C (Pak.) 317 and Pakhar Das Ganga Ram v. Emperor A I R 1938 Lab. 216 ref.
(dl) Criminal Procedure Code (V of 1898)
-- Ss. 540-A & 537 read with S. 353-Irregularity, cure of-Names and particulars of witnesses to be produced on a certain day supplied by prosecution to defence counsel in advance-Counsel of appellant also receiving instructions from appellant daily add counsel for such purpose allowed to see appellant in Jail every day-Appellant all along represented in Court by a team of lawyers and such lawyers allowed full opportunity to cross-examine prosecution witnesses and witnesses in fact subjected to lengthy and searching cross-examination during appellant’s absence-Appellant’s counsel not appearing to have experienced any difficulty or being handicapped in conducting cross-examination in appellant’s absence and none such difficulty ever brought to Court’s notice at any time -Nor any application ever made for recall of any witness for cross-examination due to appellant having not been satisfied with cross-examination previously conducted-No explanation as to why precise objection taken before Supreme Court not promptly raised before trial Court immediately after appellant’s appearance in Court after recovering from his illness-Proceedings of High Court, held, on different dates in absence of appellant, in circumstances, held, fully covered by provisions of S. 540-A and no prejudice having been caused to appellant omission of High Court to record reasons as required by S. 540-A being merely technical, omission, held further, not touching substance. of matter, and fully curable under S. 537.-[Prejudice].
Thakar Singh and others v. Emperor A I R 1927 Lab. 781; Bigun Singh v. King-Emperor A I R 1928 Pat. 143; Sukhanraj v. State A I R 1967 Raj. 267; Bishnath and others v. Emperor A I R 1935 Oudh 488 and Emperor v. Sukh Dev and others A I R 1929 Lah. 705 distinguished.
(el) Criminal Procedure Code (V of 1898)-
---- S. 540-A-Exemption from attendance-Persistent unruly behaviour of appellant accused due to disturbed state of mind-Held, justifiably found by High Court trying case to render appellant incapable of remaining before Court and appellant’s presence for rest of day rightly dispensed with-Word “incapable” as used in S. 540-A, held, refers to physical, mental or moral state of mind of accused which makes him unable or unfit to remain in Court and perform his obligations and duties-Court observations-Public trial means orderly trial and not a disorderly trial-Accused, though possessed of right to be present at his trial be at same tine under corresponding duty to help keep decorum and dignity of Court by his good behaviour.-[Exemption from attendance of accused-Words and phrases].
In re : Robert Edward Wynyard Jones, (1972) 56 Cr. App. Rep. 413 and State v. Ananta Singh and others 1972 Cr. L J 1327 ref.
(f1) Criminal Procedure Code (V of 1898)-
S. 162-History of legislation in relation to S. 162.
(gl) Criminal Procedure Code (V of 1898)-
-- S. 265-C r.-ad with Ss. 161, 162, 164 & 172-Supply of copies of statements of witnesses to accused-Statement made to Police by a person during investigation-Police Officer to record such statement separately in terms of S. 16L. (3)-Police Officer not separately recording such statement but incorporating it in case diary, such statement to be construed as a statement under S. 161 provided same in substance and essence a statement of witness and not merely a statement of circumstances ascertained through investigation-Real character of statement thus determined by its nature and not by lable given to it-Valuable right of accused under S. 265-C-Cannot be taken away or evaded by allowing Investigating Officer of misusing his authority by incorporating in case diary statements recorded by him during investigation which in essence fall within purview of S. 161-Prosecution counsel and trial Court bound in duty to supply such copies to accused-Prosecution’s failure to supply such copies to accused does not, however, necessarily imply exclusion of evidence of such witness.-[Investigation-Police Diaries].
Faiz Ahmad v. State P L D 1960 S C 8 ; Muhammad Ashraf v. State P L D 1958 Lab. 694 ; Hazara Singh’s case A I R 1928 Lab. 257 ; Pulukurt Kotayya v. King-Emperor 74 I A 6 5 ; Queen v. Mannu I L R 19 All. 390 ; Bikao Khan v. The Queen-Empress I L R 16 Cal. 610 ; Sheru Sha and others v. The Queen-Empress I L R 20 Cal. 643 and Dadan Gazi v. Emperor I L R 33 Cal. 1023 ref.
Per Dorab Patel, J. agreeing
(lgl) Criminal Procedure Code (V of 1898)-
----S. 265-C read with Ss. 161, 162, 164 & 172-Acoused cannot be deprived of his right to a copy of statements of prosecution witnesses made under S. 161 merely for reason of such statement having been reduced into writing in a police diary instead of being recorded separately-Statement in police diary only a statement of circumstances ascertained through investigation within meaning of S. 172-Accused not entitled to a copy of such statement-Statements though incorporated in case diary, yet in substance a statement under S. 161-Accused, held, entitled to a copy of such statement.-[ Investigation-Police Diaries].
Majority view [Per Anwarnl Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hassan Shah, J R]
(hl) Criminal Procedure Code (V of 1898)-
-- S. 265-C-Procedure to be adopted by Court in case of non-supply of copies of statements of witnesses to accused.-[Practice and procedure].
(il) Criminal Procedure Code (V of 1898)-
-- S. 161-Failure to supply to accused copies of statements of witnesses-Despite allegations of contradictions, omissions and improvements in statement-of witness, witness subjected to thorough cross-examination on all aspects of matter but no prejudice appearing to have been caused to accused in his defence-Principles to be observed in considering effect of alleged omissions and contradictions.-[Prejudice].
Ponnuswami v. Emperor A I R 1933
(jl) Evidence Act (I of 1872)-
---S. 35-Public documents, entries in-Admissibility in evidence-Section 35 imports idea of entry being of a permanent nature and person making entry having authority to make same-Evidence of driver and incharge of jeep keeping Log-book in his custody showing all entries not having been uniformly made by a public servant charged with duty of making same-Entries not shown made by a public servant in discharge of his official duties nor presumption regarding regularity of judicial and official acts possibly invokable, individual entries sought to be relied upon by defence, held, had to be proved, unless such entries being not covered by general provision contained in S. 35 and could not be referred to in absence of their being proved---Evidence Act (I of 1872), S. 114 illus. (e).-.[Document--Presumption].
Tamizuddin Sarkar v. Taju and others A I R 1919 Cal. 721 ; Mian Ghulam Rasul Khan v. The Secretary of State for India A I R 1925 P C 170 ; The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar P L D 1966 S C 725 ; Muhammad Jafar and others v. Emperor A I R 1919 Oudh. 75 ; Thakar Singh v. Ghanaya Singh A I R 1926 Lab.. 452 ; Mahtab Din v. Kasar Singh and others A I R 1928 Lab. 640 Ghu[arn Muhammad Khan and others v. Samundar Khan and others A I R 1936 Lab. 37 ; Biseswar Misfia v. The King A I R 1949 Orissa 22 ; Samar Dasadh v Juggul Kishore Singh I L R 23 Cal. 367 ; Messrs Bengal Friends & Co. Dacca v. Messrs Gour Benode Saha & Co. Calcutta P L D 1969 S C 477 ; Sheo B.rlak and another v. Gaya Prasad and others A I R 1922 All. 510 ; Sanatan Senapati v. Emperor A I R 1945 Pat. 489 and State Government, Madhya Pradesh v. Kamruddin Imamoddin A I R 1956 Nag. 74 ref.
(kl) Criminal Procedure Code (V of 1898)-
-- S. 265-F read with Evidence Act (I of 1872), S. 114, Illus. (g)Prosecution not bound to call all witnesses cited in challan or calendar of witnesses irrespective of considerations of number and reliability---Nor prosecution obliged to call any witness not so cited but considered by accused to be necessary-Prosecution, however, bound to call all witnesses essential to unfolding of narrative forming basis of prosecution, irrespective of whether their testimony is for or against prosecution case-Prosecution also not bound to lead evidence to prove incidental matters not concerned with essential fundamentals of its case---Non-production of certain witnesses cannot in every case give rise to adverse inference-Adverse inference to be drawn only when material witnesses shown withheld for some oblique motive or for considerations not supported on record-Prosecution, however, to be prepared to make available for purpose of examination by defence such of given up witnesses as accused may specify--Witnesses in such case to be examined as defence witnesses and not merely tendered for cross-examination without being examined in chief.[Witness-Presumption].
Messrs Bengal Friends & Co., Dacca v. Messrs Gour Benode Saha dl; Co., Calcutta P L D 1969 S C 477 ; Stephen Seneviratne v. The King A I R 1936 P C 289 ; Adel Muhammad El Dabbah v. Attorney-General of Palestine A I R 1945 P C 42 ; Malik Khan v. Emperor A I R 1946 P C 16 ; Nazar Hussain and others v. The Crown P L D 1951 Lab. 222 ; Khalrdi Khan and others v. The Crown P L D 1953 F C 223 ; Rafique v. The Crown P L D 1955 F C 70 ; Ghulam Rasul v. The State? L D 1960 Lab. 48 ; Nazir Jat and others v. The State P L D .1961 Lab. 585 ; Shaukat Ali v. The State 1976 P Cr. L J 214 ; Mahant Narain Das v. The Crown I L R 3 Lab. 144 ; Abdul Latif v. Emperor A I R 1941 Cal. 533 ; Emperor v. Kasamalli Mirzalli A I R 1942 Born. 71 ; Allah Yar v. Crown P L D 1952 F C 148 ; Kesar Singh and another v. The State A I R 1954 Pb. 286 ; Habib Muhammad v. State of Hyderabad A I R 1954 S C 51 ; Bakhshish Singh v. State of Punjab P L D 1958 S C (Ind.) 163 ; The State v. Mushtaq Ahmad P L D 1973 S C 418 ; Nur Begum v. Muhammad Hussain and another 1974 S C M R 215 ; Monir’s Law of Evidence; p. 1095 and Sadeppa Gireppa Mutgi and others v. Emperor A I R 1942 Born. 37 ref.
(l1) Criminal Procedure Code (V of 1898)-
-- Ss. 352 & 353-Chambers, hearing in--Court open only for purpose of “inquiring into or trying any offence” and not for any collateral purpose, or while dealing with something outside cause itself---Transfer applications-Not germane to proper trial as such-Trial Bench in circumstances, held, not debarred from hearing transfer application in limine in chambers--Appellant all along acting on mistaken notion that he was to be tried by public and not by High Court-Transfer application moved by appellant running into 53 typed pages containing scurrilous allegations almost entirely against Acting Chief Justice heading trial Bench, intention of accused appellant in repeating petitions based on allegations of bias appearing only to give publicity to baseless allegations of a scandalous character, and appellant starting a political speech in Court-Hearing of arguments in Chambers on transfer applications in presence of appellant and his two counsel, in circumstances, held, not open to any objection---Word “chambers”- Meaning.-Words and phrases].
Concise Law Dictionary by P. C. Osborn, (Fifth Edition) ; Burier’s Law Dictionary, Motleys Law Dictionary (Sixth Edition) ; Wharton’s Law Lexicon (Fourth Edition) ; Black’s Law Dictionary, Oxford English Dictionary ; Cora 1 villain McPherson v. Cora Lillian McPherson, A I R 1936 P C 246; Alliance Perpetual Building Society v. Belrum Investment Ltd. and others (1957) 1 W L R 720 and Scott v. Scott 1913 A C 417 ref.
(ml) Criminal Procedure Code (V of 1898)-
Ss. 352 & 353-Proceedings in camera-Rule regarding holding open trials-Not rigid and inflexible nor to be pressed to its breaking point in defeating very ends of justice-Presiding Judge or Magistrate empowered to forbid access of public generally or any particular person’s remaining in Court at any stage of inquiry or trial for sufficient reasons in interests of administration of justice-Number of applications filed by appellant from time to time making scandalous and scurrilous allegations mostly against Acting Chief Justice heading trial Bench-Blasphemous allegations attributing bias and motive made in face of a superior Court Judge constituting one of worst forms of contempt and repeated with impunity to defame Judge and Court with scant regard for dignity of law and its enforcing agency Accused adopting an openly hostile attitude in Court and becoming defiant towards end thereby making it arduous for Court to conduct trial-Accused wishing publicity without caring for his own defence---Court, in circumstances, having a genuine and reasonable apprehension of appellant being out to further indulge in scurrilous and scandalous allegations against it and wishing publicity for same -Such conduct of accused likely to result in undermining dignity of High Court and shaking people’s confidence in it-High Court, circumstances, held, left with no alternative but to hold further proceedings to camera-Apprehension of Court further strengthened when a few supporters of accused found shouting and yelling in corridor outside Chief Justice’s Chamber.-[Proceedings in camera-Practice and procedure].
In re: .William Oliver (1947) 333
U S 257; Corpus Juris Secundum,Yol. 23. pp. 849-853, S. 963(1); Scott and another v. Scott 1913 A C 417
(Reprint), King v. Governor of .Lewes Prison (1917) 2 K ,B D 254 ; Cora Lillian
McPherson v. Cora Lillian McPherson A I R 1936 P C 246 ; Naresh Shridhar
Mirajkar and others v. State of Maharashtra and others A I R 1967 S C 1 ; W. E.
Gardner v. 17. Kha A I R 1936 Rang. 471 ; In re : M. R. Venkataraman A I R 1950
(nl) Criminal Procedure Code (v of 1898)—
S. 342 read with S. 537---Examination of accused----Irregularity, curing of-Evidence of none of witnesses examined in camera having any material effect on case for or against objecting accused-
--Accused deciding boycotting proceedings and in substance not answering questions put to him in his examination as accused-
-- Accused deliberately failing to avail of opportunity to personally explain circumstances appearing against him in prosecution evidence Entire prosecution evidence recorded in open Court and most of his examination as accused also thus conducted--Alleged irregularity, if any in holding part of trial in camera, held, occasioned no failure of justice nor prejudiced contesting appellant in his trial.--[Examination of accused-Proceedings in cameral.
(ol) Criminal Procedure Code (V of 1998)-_,-.
_ S. 337 read with Penal Code (XLV of 1860),. S. 2U1-Word “accomplice”---Not defined in Evidence Act, 1872, hence to be construed in its ordinary dictionary meaning Section 337 ‘clearly indicates accomplice to be a conscious participator in crime regarding which his evidence required--Presence of guilty intention and knowledge oho made essential ingredient of offence of conspiracy under S. 201, Penal Code, 1860-Accomplice, hence, means a guilty associate or participator in crime or who, in some way or other, whether before, during, or after commission of offence, consciously connected with offence in question, or who makes admission of facts showing his conscious hand in offence---Witness not concerned with commission of crime charged against accused---Cannot be said to be an accomplice in crime-Presence of necessary mens rea and participation in crime in some way so as to his being tried along with confederate actually’ perpetrating crime--Necessary test--Burden of showing a witness to be accomplice-”Ordinarily lies on Party alleging it, viz.,accused, although prosecution bound to bring all relevant facts baying a bearing on such aspect of matter to Court’s notice.--[Words and phrases-Accomplice---Witness--Burden of proof-Mens rear.
Bagu and others v. Emperor A I R 1925 P C 130; Mahadeo v. The King A I R 1936 P C 242; Phullu and another v. Emperor A. I R 1936 Lah. 731; Govinda Balaji Sonar v. Emperor A I R 1936 Nag. 245; Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101; Nga Pauk v. The King, A I R 1937 Rang. 513; In re : Addanki Venkadu A I R 1939 Mad. 266; In re : S.A. Satlan Khan and others A I R 1939 Mad. 283; Kr. Shyarn Kumar Baugh and others v. Emperor A I R 1925 P C 130; Meade v. The King A I R 1936 P C 242; Pull and another v. Emperor A I R 1936 Lah. 731; Govinda Balaji Sonar v. Emperor A I R 1936 Nag. 245; Nearing Canard Bissau and others v. Emperor A I R 1936 Cal. 101; Nag Pack v. The King, A I R 1937 Rang. 513; In re : Addanki Venkadu A I R 1939 Mad. 266; In re : S.A. Sitar Khan and others A I R 1939 Mad. 283; Kr. Shyam Kumar Singh and another v. Emperor A I R 1941 Oudh 130 ; Jagannath v. Emperor A I R 1942 Oudh. 221; Emperor v. Percy Henry Burn 4 E I C 268; Chudo and another v. Emperor A I R 1945 Nag. 143; Ismail Has4n Alt v. Emperor A I R 1947 Lah. 220; A’ebtl Mandai and others v. Emperor, A I R 1940 Pat. 289; Narayan and others v. State A I R 1953 Hyd. 161; Anna and others v. State of Hyderabad A I R 1956 Hyd. 99 ; Bihari Mandal v. State A I R 1957 Orissa 260 ; Crown v. Ghulam Rasul and others P L D 1950 Lah. 129; The State v. Jamalan and others P L D 1959 Lah. 142; Vemireddy Satyanarayan Reddy and others v. State of Hyderabad P L D 1956 S C (Ind.) 280; Ashutosh Roy v. The State A I R 1959 Orissa. 159; Balbir Singh v. The State A I R 1959 Pb. 332 ; State v. Bashamber Dayal, A I R 1953 Pepsu 82; Sykes v. Director of Public Prosecutions 1962 A C 528 ; Abdul Mansur Ahmad and another v. The State P L D 1961 Dacca 753; Musafar v. The Crown P L D 1956 F C 140 ; Ramaswaml Goanden v. Emperor I L R 27 Mad. 271 ; The King v. Levy 1 K B 158 and Baboo Singh v. Emperor A I R 19 1936 Oudh. 156 ref.
Minority view-[Per Dorab Patel, J.]
(1ol) Criminal Procedure Code (V of 1898)--
- S. 337 read with Penal Code (XLV of 1860), S. 201-Accomplice-Meaning -Persons concerned or associated with each other, or one another, in crime or crimes-Succession of Police Officers examined by prosecution to prove appellant Z having, through their connivance, suppressed evidence of murder of complainant’s father committing on their own admission offences under S. 201, Penal Cods 1860, such Police Officers, held, accomplices.--[Words and phrases-Accomplice].
Papa Kamalkhan and others v. Emperor A I R 1935 Bom. ‘ 230 ; Srinivas Mall Bairoliya and another v. Em eror P L D 1947 P C 141 ; Monir on Law of Evidence (Pakistan Edn. , p. 1448; R. v. Elahee Buksh 5 W R 80 (Cr.) ; Bhuboni Sahu v. The King P L D 1949 P C 90 ; Dr. H. S. Gour’s Penal Law of India, 9th Edn., p. 1624; Mahadeo v. The King A I R 1936 P C 242; Ismail v. Emperor A I R 1947 Lah. 220; Emperor v. Percy Henry Burn 4 1 C 268 (Bom.) ; Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101; Nga Pauk v. The Icing A I R 1937 Rang. 513 ; S. A. Sattar Khan and others v. The Crown A I R 1939 Mad. 283; Jagannath v. Emperor A I R 1942 Oudh 221; Ghudo acrd another v. Emperor A I R 1945 Nag. 143; Crown v. Ghulam Rasul and others P L D 1950 Lah. 129 ; Ramaswami Gouden v. Emperor I L R 27 Mad. 271; Mumtazuddin v. The State P L D 1978 S C 11; Vemireddy Satyanarayan Reddy and others v. State of Hyderabad P L D 1956 S C (Ind.) 280 ; Queen v. Concy and others 8 Q B D 534; Davies v. Director of Public Prosecutions 1954 A C 378; Chinna Gangappa v. Emperor A I R 1930 Mad. 870 ; Begu and others v. Emperor A I R 1925 P C 130 and Kalawat and another v. The State of Himachal Pradesh A I R 1953 S C 546 ref.
Minority view--[Per G. Safdae Shah, J., Muhammad Haleem, J., agreeing],
(2o1) Criminal Procedure Code (V of 1898)-
--- S. 337 read with Penal Code (XLV of 1860), S. 201-Expressions “accessory before the fact” and “accessory after the fact” though not defined in Evidence Act, 1872 yet in view of language of S. 337, Cr. P. C., S. 201, Penal Code and Ss. 133 & 114(b), Evidence Act, Courts as well as commentators felt no difficulty to spell out existence of such concepts in legal systems of Indo-Pakistan---”Accessory after the fact” though not particeps criminis yet no better than accomplice---Approver M if not Strictly an accomplice, held, no better than accomplice, hence his evidence needs corroboration-Evidence Act (I of 1872), 8s. 133 & 114(b).--[Words and phrases-Evidence--Accomplice-Approves].
Begu and others v. , mperor A I R 1925 P’C 130 ; Mahadeo v. The King A I R 1936 F C 2,42 ; Mahilkilili Dhalaminl and others v. The King A I R 1943 P C 4 ; Ashutosh Fay v. The State A I R 1959 Orissa 159 ; Pt. Darshan Lai and another v. Munnoo Singh and others A I R 1937 Oudh 258 ; Gopi Nath Sings v. Emperor through Surajpal Singh A I R 1948 Oudh 130 ; Musafar v. The Crown P I. D 1956 F C 140 ; Vemireddy Satyanarayan Reddy and others v. State of Hyderabad P L D 1956 S C (Ind) 280 ; Law of Evidence by Monir (1974 Edo,), pp 1451, 1453 ; Mahadeo v. The King A I R 1936 P C 242 and The State v. Jamalan and others P L D 1959 Lah. 442 ref.
Nqa Pauk v. The King A I R 1937 Rang. 513 ; Ramaswami Gounden v. Emperor I L R 27 Mad. 271 ; Jagannath v. Emperor A I R 1942 Oudh 221 ; Ghudo and another v. Emperor A I R 1945 Nag. 143 ; The Crown v. Ghulam Rasul and others A I R 1950 Lah. 129 and Narain Chandra Biswas and others v. Emperor A I R 1936 Cal. 101 distinguished. Majority View--[Per Anwacal Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nadm asan Shah, JJ.]
(pl) Evidence Act (I of 1872)-
--- Ss. 133 & 114, illus. (b)-Accomplice evidence-Accomplice-A competent witness and conviction not illegal merely for proceeding upon uncorroborated testimony of accomplice--Section 133 read with S. 114, illus. (b), Evidence Act, 1872 however renders evidence of accomplice unworthy of credit unless corroborated in material particulars--Rule being essentially a rule of caution, meaning of term “accomplice” not to be unnecessarily enlarged so as to exclude or discredit evidence of persons in best position to disclose facts relevant to crime yet not consciously concerned in crime so as to be indicted jointly with main accused-Section 114 itself contemplating situation where evidence of aoc3mplice could be accepted without insisting on corroboration, treatment of a witness as “practically an accomplice” or “no better than accomplice,” even though he could not be jointly indicted. with main a-wised cu account of his not being consciously concerned in crime perpetrated by actual culprits-Leads to confusion of thought witness root accomplice on account of absence of means rea-Rcal question arising not of requiring corroboration of his evidence but of degree of credit to be attached to his testimony depending upon all Pacts and circumstances, of case.-[Accomplice-Witness”--Evidence-Woods and phrases--Mew real.
(ql) Penal Code (XLV of 1860)---
-----S. 201-Trial for conspiracy and murder--Witness riot accomplice in having not been concerned in perpetration of conspiracy and murder itself but having consciously done some acts bringing him within mischief of S. 201 by way of concealment of evidence to shield offender-Cannot be tried for offence of conspiracy and murder,-[Accomplice--Conspiracy---Murder---Witness].
Minority view-[Per Dorab Patel, ,i.]
(lql) Penal Code (XLV of 1860)--
- S. 201--Illegal interference of Chief Security Officer, in investigation if accepted, held, would mean concealment and destruction of evidence in a murder case within meaning of S. 201, P. P. C. rendering such person an accomplice.--[Accomplice-Evidence].
(2ql) Penal Code (XLV of 1860)--
.- S. 201-Prosecution not required to produce all available witnesses in ordinary cases-Position, however, quite different when prosecution relies on evidence of accomplices-Prosecution in such cases bound to produce all independent evidence available to corroborate any statement made by accomplice provided such fact material to prosecution case-Failure to produce such evidence, held, fatal to such part of evidence of accomplice which could have been but was not corroborated by independent evidence.-[Witness-Evidence---Accomplice].
Bhuboni Sahu v. The King P L D 1949 P C 90 ; Queen-Empress v. Chagan Dayaram and another I I. R 14 Dom. 331 ; Queen-Empress v. Malhar Martand Kulkarni I L R 26 Dom. 193 ; Queen-Empress v. Deodar Sing and another I L R 27 Cal. 144 ; Emperor v. Edward William Smither I L R 26 Mad. 1 ; Emperor v. Anwar All A I R 1948 Lab. 27 ; Ghulam Muhammad v. The Crown P L D 1957 Kar. 410 ; Osimuddin Sarkar v. The State P L D 1961 Dacca 798 and Papa Kamalkhan and others v. Emperor A I R 1935 Dom. 230 ref.
Majority view -[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hann Shah, JJ.]
(rl) Criminal Procedure Code (V of 1898)-
-- S. 337 read with Evidence Act (I of 1872), S. 133 & 114, illus. (b)--Accomplice evidence-Corroboration-Theory of double test-Rule requiring approver’s evidence to first show his being a reliable witness and then to receive sufficient corroboration-Phrase “reliable witness” in rule-Refers not to his moral character and dependability but aims at determination of whether his evidence probable and natural in circumstances of case.-[Accomplice-Words and phrases-Evidence].
Under section 133 of the Evidence Act an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, this section is to be read alongwith illustration (b) to section 114 of the same Act, both being parts of the same subject. In view of the presumption mentioned in this illustration, namely, that the Court may presume that an accomplice- is unworthy of credit, unless he is corroborated in material particulars, the Courts have adopted a rule of caution, which has almost acquired the status of a rule of law, that as the evidence of an accomplice is tainted, it generally requires corroboration. The rule being essentially a rule of caution; the meaning of the term “accomplice” must not be unnecessarily enlarged so as to exclude, or discredit the evidence of persons who may be in the best position to disclose facts relevant to the crime, and yet not be consciously concerned in the crime in such a manner that they could be indicted jointly with the main accused. Section 114 of the Evidence Act itself also contemplates a situation where evidence of accomplices can be accepted without insisting on corroboration, as, for instance, where their accounts tally without there being the possibility of previous concert between them as to their statements. In these circumstance, it leads to confusion of thought to treat a witness as “practically an accomplice”, or “no better than an accomplice”, even though he could not be indicted jointly with the main accused, on account of his not being consciously concerned m the crime perpetrated by the actual culprits. If a witness is not an accomplice in the sense indicated above, namely, on account of the absence of mens rea, then the real question is not of requiring corroboration of his evidence, but of the degree of credit to be attached to his testimony, depending ors all the facts and circumstances of the particular case. In other words, he has then to be judged as any other witness, without introducing an artificial requirement of corroboration of his evidence by applying the rule contained to illustration (b) to section 114 of the Evidence Act.
Sarwan Singh Ratan Singh v. State of Punjab A I R 1957 S C 637 ; Luchhi Ram v. State of Punjab A I R 1967 S C 792 ; Dr. Muhammad Bashir v. The State P L D 1967 S C 447 ; Balmukand v. Emperor A I R 1915 Lab. 16 ; Chatru Malak v. Emperor A I R. 1928 Lab. 681 ; State of Bihar v. Srilal Kejriwal A I R 1960 Pat. 459 ; Sharaf Shah Khan v. State of Andhra Pradesh A I R 1963 Andh. Pra. 314 ; Prananath v. Banamall A I R 1958 Orissa 228 ; Plara Singh v. State of Punjab A I R 1969 S C 961 ; Babuli v. State of Orissa A I R 1974 S C 775 and Major E. G. Barsav v. State of Bombay A I R 1961 S C 1762 ref.
Minority view-[Per Dorab Patel, J.]
(lr1) Criminal Procedure Code (v of 1898)--
--- S. 337 read with Evidence Act (I of 1872), S. 114, Illus. (b)-Accomplice-Evidence of accomplice---Always requires corroboration and has to pass a double test-Such evidence even if passing test of reliability can still not be accepted without corroboration.-[Accomplice--Evidence].
Queen v. Maganlal and Motilal I L R 14 Dom. 115 ; Nga Aung Pe v. Emperor A I R 1937 Rang. 209 ; Allisab Rajesah v. Emperor A I R 1933 Dom. 24 ; Ishaq v. The Crown P L D 1954 F C 335 ; Nazir and others v. The State P L D 1962 S C 269 ; Muhammad Panah v. Emperor A I R 1934 Sind 78 (2) and Ajun Shah v. The State P L D 1967 S C 185 ref.
Minority view--[Per G. Safdar Shah, J., Muhammad Haleem, J., agreeing].
(2r1) Criminal Procedure Code (V of 1898)-
----- S. 337 read with Evidence Act (1 of 1872), S. 114, illus(b)-Scrutiny of evidence of approver revealing same to be natural and probable--Court even thereafter must look for its corroboration which in case of an ordinary witness would not be necessary.-[Approver-Evidence-Witness).
Dr. Muhammad Bashir v. The State P L D 1971 S C 447 ; Sarwan Singh Rattan Singh v. State of Punjab A I R 1957 S C 637 ; Luchhi Ram v. The State of Punjab A I R 1967 S C 792 ; Plara Singh v. The State of Punjab A I R 1969 S C 961 ; Babuli v. The State of Orissa A I R 1974 S C 775 ; Noor Zaman Khan v. Mst. Maimunnissa Bibi and others A I R 1958 Orissa 228; State of Bihar v. Srilal Kojrlwal and others A I R 1960 Pat. 459 ; Sharaf Shah Khan and others v. State of Andhra Pradesh A I R 1963 Andh. Pra. 314 ; Balmukand v. Emperor A I R 1915 Lah. 16 ; Chatru Malak v. Emperor A I R 1928 Lah. 681 and Major E. G. Barsay v. State of Bombay A I R 1961 S C 1762 ref.
Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elabee Chaahan and Nasim Hasan Shah, JJ.]
(al) Penal Code (XLV of 186(1)-
---- Ss. 302/109 etc.-[Murder-trial]-Appreciation of evidence-Approver 1.4 M enjoying a special position under accused Z (former Prime Minister), in close and constant touch with him throughout his tenure of office ; shown all kinds of favours and considerations by accused Z. ; he being not the only civilian official taken into custody n proclamation of martial law ; having held important positions invoiving assumption of responsibility and exercise of authority-Held, difficult to hold his having become an instrument in hands of Martial Law authorities to deliberately and falsely concoct story narrated at great length at trial-Even otherwise if approver M had any reason to falsely implicate former Prime Minister no reason existed for Martial Law authorities or for approver M himself to falsely assign important operational role in conspiracy to another accused officer.-[Evidence-Approver].
(tl) Criminal trial--
----Obliging concessions by witnesses-Concessions made in his statement by a witness produced merely to file a report-Held, cannot prevail against direct testimony on point given by other witnesses and supported by documents.-[Witness].
Baghu v. The State P L P 1972 S C 77 ref.
(ul) Criminal trial Witness-Proof-Disparity of one day in witness’s statement regarding taking place of meeting --Witness deposing about event three years later from memory and not from any documentary record--Held, cannot be described as deliberate lie nor could affect main tenor of statement.-[Witness-Proof].
(vl) Criminal trial-
---Witness-Contradiction-Statement not made by witness in his examination-in-chief but elicited from him in cross-examination - Held, cannot be treated as an improvement much less a contradiction.-[Witness-Evidence].
(wl) Criminal trial-
-----Witness-Contradiction---Mere amplification of earlier statement---Neither a contradiction nor an improvement.-[Witness---Evidence].
(xl) Criminal trial-
-- Witness--Contradiction-Clarification of ambiguous statement or giving details in cross-examination-Held, not contradictions in statement of witnesses.---[Witness-Evidence].
(yl) Criminal trial-
--,- Witness-Contradiction--Referring to slime subject in a different language with more clarity--.Held, neither an improvement ricer a contradiction.-[Witness-Evidence].
(zl) Evidence Act (I of 1872)
-- S. 8-Motive-Relevant as an aid in appreciation of evidence in criminal cases-Contention that motive is not relevant in conspiracy cases, held, not correct.-[Motive-Conspiracy-Evidence]. [Jit Singh v. Emperor A 1 R 1925 Lah. 526 ; Kartar Singh v. Emperor A I R 19.;6 Lah. 400 and Qabil Shah and others v. The State P L D 1960 Kar. 697, held, not applicable].
At Singh v. Emperor A I R 1925 Lah. 526 ; Kartar Singh v. Emperor A I R 1936 Lah. 400 and Qabil Shah and others v. The State P L D 1960 Kar. 697 held not applicable.
Dr. Nand Lal’s commentary on the Indian Penal Code 1929 Edition; Law of Evidence by Monir, p. 57, Abdur Rashid v. Umid Ali and others, P L D 1975 S C 227 ; Mst. Razia Begum v. Hurayat Ali and 3 others P L D 1976 S C 44 ; and Dost Muhammad v. The State 1974 P Cr. L J 275 ref.
Minority view-[Per Dorab Patel, J.]
(1zl) Evidence Act (I of 1872)-
-- S. 8-Evidence of motive-Always a weak form of corroborative evidence-Apart from evidence of alleged interference of appellant Z with investigation of murder, evidence produced about his conduct of a very equivocal nature, reasonably capable of innocent interpretation, hence, of no corroborative value.-[Motive-Evidence].
Majority View-[Per S. Anwarnl Haq, C. J., Muhammad Akram, Karam Elahee Chanhan and Nasim Hassan Shah, JJ.]
(al) Penal Code (XLV of 1860)-
--Ss. 302/109 etc.-[Murder trial]-Motive-Appreciation of evidence--Complainant in F. 1. R. lodged within minutes of death of his father asserting firing having been made on him due to political reasons he being a member of Opposition; strictly critical of policies of Government headed by accused Z; accused Z having addressed him in a meeting of National Assembly saying he was fed up with complainant and complainant could not be tolerated any more----Complainant in his evidence before Court giving details of his political differences with accused Z stating that though he was elected on ticket of accused Z’s party yet he considered Z as power-hungry and as such his relations with him got really strained, that when Z declared in a public speech that his party would not attend Dacca Session of National Assembly and threatened that whoever goes to Dacca his legs would be broken and would go on a single fare, he went to Dacca; that he did not approve of Z’s role by publicly addressing East Pakistan leader; “You on that side and we on this” and used to criticise him strongly; that he went on hunger strike over liberty of Press; that pro Z elements attacked him in his own town, once resulting in fracture of his hand and next in getting pellets hit his legs and various injuries to his brother; that as a matter of strategy he adopted a policy of peace because Z was not only executive head of Government but also Chief Martial Law Administrator; that on lifting of . Martial Law he again started criticising Z and resultantly he was expelled from Z’s political party; that when in National Assembly he interrupted Z’s speech and stated that Constitution was not unanimous as claimed, Z, said: “you keep quiet. I have had enough of you; absolute poison. I will not tolerate your nuisance any more”; that complainant also retorted in same manner and said “I cannot tolerate your style also” and Z in reply said “I have bad enough of this man. What does he think of himself,”; that he moved a privilege motion complaining of receipt of threatening calls to face dire consequences-Statement of complainant materially corroborated by authentic documentary evidence to prove his strained and hostile relations with accused Z Complainant openly charging Z as responsible for destroying country for sake of power and bitterly criticising him in respect of his actions and promises; that Z was strongest dictator in the world, that he was threatened death if he did not stop criticising Z; that firing was resorted to while he was addressing . meetings at several places and on many occasions attempts were made to either kill or injure him; that Federal Security Force was used to disturb public meetings,’ to commit political murders etc. and to dislodge opponents of Government - Defence contention of such allegations being false-Does not detract from fact of complainant having been indulging in bitter criticisam of Z and his policies and such criticism being all the more infuriating to Z if not correct or justified-Complainant also charging Z as having taken thirty lacs of rupees from leader of Qadiani community in Qadiani issue-Federal Security Force stated by complainant to have been Prime Minister’s favourite and used to carry out lathi charges and to shoot people-Existence of hostility between two also proved by Chief Security Officer of accused Z such witnesses admitting complainant having been kept under surveillance, his telephones being tapped, and personal interest having been taken by Z in complainant--.Chief Security Officer of Prime Minister Z and his Assistant having directed investigating officers to examine every possible motive but case still filed thereby showing discovery of no other motive-Nothing brought out in lengthy cross-examination of prosecution witnesses to show any of them, or any of confessing accused, having any motive of their own to commit murder of complainant’s father-Approver M on other hand stating his father and deceased being family friends-Accused Z, held, had strong motive to do away with complainant.-[Motive-Evidence].
Minority View-[Per Dorab Patel, J.]
(1a2) Penal Code (XLV of 1860)-
--- Ss. 302/109 etc.--Prosecution’s stand of having proved complainant having had no enemies except appellant Z-Not understandable---Evidence existing proving complainant’s enmity with a local being far bitter than any difference of opinion with appellant Z.-[Evidence].
(2a2) Penal Code (XLV of 1860)-
-- Ss. 302/109 etc.-Prosecution case about motive, held, fails.-[Motive].
(3a2) Penal Code (XLV of 1860)-
Ss. 302/109 etc.-Lucid description in F. I. R. of occurrence wherein complainant’s brother sustained more than a hundred injuries held suggested local enmities against complainant being extremely violent.
Minority View-Per G. Safdar Shah, J., Mohammad Haleem, J, agreeing]
(4a2) Penal Code (XLV of 1860)--
- Ss. 302/109 etc.- Evidence on record not susceptible to bear appellant Z having been responsible for complainant’s having always been attacked-Evidence. on other hand, showing rank and file of Z’s political party having resented his confrontation with appellant Z held by workers of party in very high esteem-Probable in circumstances for such workers to have taken upon themselves to teach complainant a lesson and attack on him at every place in country when complainant attempted to voice his views against person and policies of appellant Z-Complainant having initiated anti-Ahmadis movement and also having earned in his home town enmity of a prominent member of appellant Z`.s political party and such person also having challenged him to resign his seat in Assembly and seek fresh elections, appellant Z alone having been responsible for alleged incident cannot be said with certainty, nor could it be said that he alone had motive to assassinate him-Prosecution evidence, specially when wholly circumstantial-To be so construed as to eliminate possibility of any reasonable doubt about innocence of accused.-[Evidence].
(5a2) Penal Code (XLV of 1860)-
-- Ss. 302/109 etc.-Appreciation of evidence-Principles governing safe dispensation of criminal justice wholly ignored by High Court resulting in acceptance of ail prosecution evidence without testing it on anvil furnished by pragmatic, well-tested and enduring principles,, prosecution held, failed t3 establish its case against appellants Z and A at all much less beyond any reasonable doubt-Possibility, held further, could not be excluded of either approver M or approver G having had a motive of their own to kill complainant.
(6a1) Penal Code (XLV of 1860).-
-- Ss. 302/109 etc.-Appellant Z not only denying having any motive to assassinate complainant but complainant and approver M both extensively cross-examined to show existence of quite a few other possible motives for attack on complainant by unknown persons---Analysis of record establishing latter possibility-Believing prosecution evidence by High Court as a matter of course without subjecting it to critical analysis with a view to excluding every other reasonable hypothesis compatible with innocence of accused-Not warranted---Many vital links in long chain forged by use of circumstantial evidence snapped resulting in chain being broken into several pieces---All pieces of evidence relied on by prosecution as to alleged subsequent conduct of appellant Z, held, wholly illusory and of no consequence. [Evidence-Motive].
Law of Evidence by N. D. Basu 1950 Edn., pp. 47 & 50.
Majority view-.[Per Aownrol Haq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hassan Shah, JJ.]
(b2) Criminal trial---
-- Admissibility in evidence-Source or intelligence reports-Not admissible in evidence but could be admitted to show fact of their having been submitted to a particular officer in respect of a certain person and of certain comments having been made by such officer on perusal of such reports:-[Evidence].
Islamic Republic of Pakistan v. Abdul Wall Khan P L D 1976 S C 75 ref.
Minority View-[Per G. Safdar Shah, J., Muhammad Haleem, J, agreeing]
(lb2) Criminal trial--
----- Source of secret reports--Inadmissible in evidence.-[Evidence].
Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wall Khan, M. N. A. former President of Defunct National Awami Party P L D 1976 S C 57 and Mst. Soiran alias Saleema v. State P L D 1970 S C 56 ref.
Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam
Elahee Chauhan and Nasim Hassan Shah, JJ].
(e2) Criminal Procedure Code (V of 1898)---
S. 162-Statements to police -Prosecution supplying copy of statement to defence as found in police record of investigation of incident-Statement, held, could not be used to contradict and cross-examine complainant unless duly proved as required by S. 162-(complainant having emphatically denied making any such statement).-[Statement to police].
(d2) Criminal Procedure Code (V of 1898)-
.-- S. 265-C read with Ss. 161 & 162-Copies of statements made before police-Supply of, to accused--Statement not recorded under S. 161 during investigation of present murder but in a different case under S. 307, P. P. C. Not one of statements required to be supplied to defence under S. 265-C-Defence in such case under duty to summon officer concerned as its own witness in case it wanted to make use thereof under S. 162.-[Statement to police-Witness].
(e2) Criminal Procedure Code (V of 1898)-
S. 540-Summoning of witness as Court witness--Power under S. 540 to summon Court witnesses-Entirely discretionary--Accused cannot insist on summoning any witness as Court witness specially -when he possessed opportunity of calling witness as defence witness if he considered his evidence necessary.
Minority view-[Per Dorab Datel, J.]
(1e2) Criminal trial-
--- Proof-Presumption-Prosecution under obligation to examine a particular witness in proof of its submission regarding bullets used in assault bearing a particular mark having been issued only to Force allegedly having used such bullets--Prosecution filing application for summoning such witness but such application rejected for witness having not been named in calendar of witnesses-Omission of witness’s name in calendar of witnesses, held, no ground for debarring witness from being examined if he could be examined without causing any delay-Prosecution having filed application long before closure of case examination of witness could not have caused any delay and opposite---party having not opposed application witness should have been summoned or rather Court should have examined witness of its own accord-Fact of complainant not being responsible for non-examination of such witness, held further, did not help prosecution case due to failure to examine witness having left a yawning gap in its evidence.[Proof-Presumption-Witness].
Majority View--[Per Anwarul Haq. C. J., Mohammad Akram, Karam Elahee Chaahan and Nasim Human Shah, JJ.]
(f2) Penal Code (XLY of 1860)--
-- Ss. 302!109 etc.-[Murder-case]-Appreciation of evidence-Contention that complainant being a non-entity accused Z could have no motive to arrange for his murder---Held, facts on record sufficient to show complainant having been an important political figure and capable of hitting back at Prime Minister accused Z on floor of Parliament-Facts, held, negative assertion of complainant being a non-entity whose utterances could be easily ignored by Z.-[Evidence-Motive].
(g2) Penal Code (XLV of 1860)-
.-- Ss. 302/ 109 etc.-[ Murder-case]-Appreciation of evidence-Contention regarding witness S having been deliberately chosen to falsely implicate accused Z owing to pressure exerted on him by Martial Law authorities-Several civilian officials appearing to have been taken into custody on proclamation of Martial Law, specially those closely associated with Prime Minister Z-Mere fact of S having been taken into custody, held, would not necessarily lead to inference of his having been persuaded to falsely implicate his erstwhile superior and benefactor-Fairly long association between S and appellant Z leading to appointment of S by Z to a position of great personal confidence and trust as his Chief Security Officer despite his being a dismissed civil servant-Device adopted to pay him his salary as a legal consultant to an organisation for which he never worked and his continuance in service on same terms even after his cessation as Chief Security Officer, held, negative defence plea.-[Evidence-Presumption].
(h2) Penal Code (XLV of 1860)--
-- Ss. 302/109 etc.-[ Murder-case)-Appreciation of evidence-Chinese ammunition of 7.62 mm. calibre issued to Federal Security Force from Central Ammunition Depot of Army and one of lots supplied bearing marking 661/71-Approver G given 1,500 rounds out of this ammunition for training purposes at Commando Camp started, by him cinder directions of appellant A-Several rounds fired in attack on complainant out of this stock at station I-Incident at Ion such evidence clearly shown to be an attempt in direction of execution of conspiracy intended to eliminate complainant through agency of Federal Security Force and provides corroboration of evidence of both approvers----Out of same stock 500 rounds brought by Approver G to station L-Calibre of ammunition supplied to Federal Security Force and empties recovered from spot of murder at station L being same, significant support held given to prosecution in its claim that in both incidents of I and L personnel and ammunition of Federal Security Force came to be employed.-[Evidence].
Minority view--[Per nora1o Patel, J.]
(ih2) Penal Code (RLV of 1860)--
S. 302/ 109 etc. -[Murder-case]-Weapons used in occurrence being not recovered but empties alone having been recovered, prosecution bound in duty to lead evidence to prove empties being bullets belonging to federal Security Force and of their being not available elsewhere--prosecution having applied for summoning of a witness from Ammunition Depot to prove such fact but its application having been rejected by trial Court, prosecution, held. failed to prove ammunition used in occurrence having belonged exclusively to Federal Security Force.-[Evidence].
Majority view-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chaohan and Nasim Hasan Shah, JJ.]
(i2) Penal Code (XLV of 1860)-
-- Ss. 302/109 etc.-[Murder-case]-Appreciation of evidence-Contention that ammunition of calibre allegedly used in attacks on complainant being in use in other agencies as well, mere fact of recoveries of empties of such calibre from spot of occurrence could not necessarily implicate Federal Security Force in incidents-Held: such facts not to be looked at in isolation but with reference to facts, circumstances, and context of whole case and in circumstances of cases a probability of participation of Federal Security Force clearly made out, thus providing an item of corroboration to prosecution case.-[Evidence].
(j2) Criminal Procedure Code (V of 1898)-
-- S. 510 -- Fire-arms - Expert’s opinion-Objection as to mode of proof, as distinguished from relevancy and admissibility of evidence-Cannot be permitted to be raised where party not objecting at time of tender of document in evidence and its being placed on record as proved-Objection even not raised in memo. of appeal nor in arguments in support of appeal-Omission to raise objection at trial stage bereft prosecution of opportunity to produce evidence in rectification-Police officers on different dates having regarded person giving report as Arms Expert appointed by Government, in view of presumption attaching regularity to official acts, Expert’s opinion could not be brushed aside-Fact of report having been signed in the name of, and for, Chief Inspector of Armaments, Head of Organisation, could not mean report being not of relevant Expert but of Chief Inspector of Armaments-Reports on ammunition in question. hence, held, could not be invalidated on ground of being not proved properly.--[Expert-Evidence-Proof-Presumption]
Dil Muhammad and another v. Sain Das A I R 1927 Lah. 396 ; Emperor v. Bachcha A I R 1934 All. 873 ; Gopal Das and another v. Sri Thakurji anal others A I R 1943 P C 83 ; Piao Gut v. State P L D 1960 S C 307 ; Public Prosecutor v. Pamarli Vankata Chalamaiah A I R 1957 Andh. Pra. 2E6 and A I R Manual (Civil and Criminal) (2nd Edition) Vol. 5 p. 5388 ref.
Muhammad Shafi v. The Crown A I R 1949 Lah. 240 distinguished.
Minority view-[Per Dorab Patel, J.]-
(jj2) Criminal Procedure Code (V of 1898)-
--- S. 510-Failure to object to admissibility of documents-Would only preclude failing party from challenging execution of document---Question whether contents of document were correct-Different matter-Expert carrying out test having not been examined, S. 45 Evidence Act, 1872 fatal to argument of no objection having been taken to admissibility of document-Privilege conferred by S. 510 being limited to reports of Chemical Analyser and Assistant Chemical Analyser appointed by Government, prosecution’s duty to she wexper examining bullets having been appointed by appropriate Government as such-Expert examining bullets, hence, not competent to issue certificate under S. 510.-[Evidence-Document--Expert evidence].
(2j2) Criminal Procedure Code (V of 1898)-
-- S. 510-Court would be failing in its duty if it relies upon an expert’s report not containing reasons for his finding-Public Prosecutors would be well-advised to examine expert, despite privilege conferred on them by S. 510, in cases where expert’s opinion is crucial to prosecution case or where his opinion turns on some controversial or complicated matter.-[Duty of Court--Expert evidence].
(3j2) Criminal Procedure Code (V of 1898)-
-- S. 510-Bullets of disputed calibre not available to public except through illegal purchases-Submission even if correct, such would imply a probability of weapons used in occurrence having come from Force in question-Prosecution, however, held, cannot prove its case by relying on probabilities--[Evidence].
Majority View-[Per Anwarol Haq, C. J., Mohammed Akram, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.]
(k2) Evidence Act (I of 1872)-
-- S. 8-Subsequent conduct of party--Admissibility-Subsequent conduct of accused if intended to be utilised against accused-Should be incompatible with his innocence and not capable of explanation on any other hypothesis-Prosecution attempting to utilize conduct of a person other than accused-Should in first instance show such conduct having been with knowledge and authority of accused---Subsequent conduct, held, may be utilized as corroboration of other substantive evidence but by itself it does not furnish proof of guilt of accused.-[Accused--Proof-Conduct].
Emperor v. Percy Henry Burn 4 I C
268 ; Laijam Singh v. Emperor A I R 1925 All. 405 ; Muhammad v. Emperor A I R
1934 Lah. 695 ; Rajmal Marwadi v. Emperor A I R 1925 Nag. 372 ; Chatru Malak v.
Emperor A I R 1928 Lah. 681 ; Shankarshet Ramshet Uravane v. Emperor A I R 1933
Bom. 482 and Rangi Lall v. Emperor A I R 1930
(l2) Criminal trial-
-- Investigation of crime, interference with--Commission of Inquiry constituted but its report ordered by Prime Minister not to be published on ground of its being adverse-Investigation agency in spite of Tribunal’s opinion in respect of perpetrators of crime being well organised, well equipped, and resourceful, not taking any steps to interrogate any official of Federal Security Force, or of any other unit whom ammunition of type used in incident issued from time to time and case filed as “untraced” despite complainant crying hoarse for justice and publicly declaring not able to get justice as long as accused Z remained in power-Prime Minister’s Chief Security Officer and his Assistant remaining in direct touch with Police Officers of District where murder committed and taking various steps with a view to ensuring investigation not connect Federal Security Force or Prime Minister with incident-Directions with knowledge of Prime Minister, given to Information Department to give publicity to statements of certain witnesses before Inquiry Tribunal as were considered to be favour able-Police officers concerned making it absolutely clear of not having had an independent hand in investigation of crime under consideration and of having been left by their local officers at mercy of Chief Security Officer to Prime Minister and his Assistant-Evidence leading to conclusion of Chief Security Officer having acted with authority and full knowledge of Prime Minister-Contention of Prime Minister being not associated with aqy of such moves in circumstances, held, not correct.-[Investigation-Evidence].
Minority View-[Per Dorab Patel, J.]
( l12) Criminal trial-
---- No sufficient evidence existing establishing illegal interference with investigations much less of their having been made on orders of appellant Z.-[Investigation-Evidence].
Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elabee Chaohan and Nasim Hasan Shah, JJ].
(m2) Penal Code (XLV of 1860)-
-- S. 201-No charge under S. 201 framed in case nor witness (former Chief Security Officer to accused Prime Minister) arrayed in list of accused persons in challan submitted by State-Sucb witness though mentioned as one of accused persons in private complaint $led by complainant yet complainant not attributing any incriminating part to such Witness-Witness also not shown to have known or having had reason to believe of a message of Prime Minister sent to Director General Federal Security Force (approver) relating to mission of killing complainant-Witness not having any hand or conscious involvement in hatching or execution of conspiracy leading to present murder Nor witness shown to be misdirecting investigation with knowledge and intention of screening offender from legal punishment-Witness all along acting under directions of his employer (Prime Minister accused Z) to clear latter’s name and shown to have advised investigating police to act with wisdom and caution telling them of Prime Minister being falsely accused-Witness in circumstances, held, could not be charged under S. 201 and be tried jointly with appellants, he being neither an accomplice or a person no better than accomplice Evidence of witness, held further, could as such be used in corroboration of approver’s statement.-[Witness-Charge-Accomplice-Joint trial-Approver].
Minority View-[Per Dorab Patel, J.]
(Im2) Penal Code (XLV of 1860)-
-- S 201-111egal interference of Chief Security Officer, approver, in investigation if accepted held, would mean concealment and destruction of evidence in a murder case within meaning of S. 201, .P. P. C. rendering such person an accomplice.-[Accomplice-Investigation].
Majority View--[Per Anwaral Haq, C. J., Muhammad Akram, Karam Elabee Cbauhan and Nasim Hasan Shah, JJ.].
(n2) Criminal trial—
-- Ballistics-Firing-Fall of bullets-Contention that if two persons fired at car driven by complainant empty cartridges could only be at two places where such persons stood and not at four places as found in present case, held, not correct-Attocks on mobile victims have to be fired from several places resulting in drop of empties at several places.-[Firing].
Minority View-[Per Dorab Patel, J.]
(1n2) Criminal trial-
--- Ballistics, Science of-Firing at complainant’s car if done in manner alleged, empties of bullets must have been ejected behind him through an angle-Odd empty possibly also having been thrown in front of person firing-Heap of six or seven empties, however, held, not explained by manneralleged.-[Firing].
Minority View-[Per G. Safdar Shah, J., Muhammad Haleem J, agreeing].
(2n2) Criminal trial-
--- Demonstration of live firing-Inspection note regarding such demonstration -No evidence hence, not to be relied upon in support of any conclusion-Note however helpful in un4erstanding evidence in case-Site plans showing recovery of empties from four different spots lying almost in clusters but demonstration of live firing giving an altogether different pattern. [Firing].
Majority View--[Per Anwarul Haq, C. J., Muhammad Akram, Karam
Elabee Chauhan and Naim Hasan Shah, JJ.]
(02) Penal Code (XLV of 1860).-
-- Ss. 120-A & 120-B-”Criminal conspiracy”-Meaning and scope-Offence of criminal conspiracy consists in mere agreement between two or more persons to do an illegal act or an act not illegal by illegal means-Conspiracy consists not merely in intention of two or more persons but in agreement of two or more persons to do an illegal act or to do a legal act by illegal means-Design as long as resting in intention only not indictable-No agreement, except an agreement to commit an offence, held, amounts to criminal conspiracy unless some overt act, besides agreement, done in pursuance of conspiracy.-[Words and phrases-Agreement].
Denis Dowling Mulcahy v. Reg (1868) H L 306; Deniel O’Connel and others v. Her Majesty the Queen (1844) 8 E R 1061; Quinn v. Leathern (1900-1903) E R (Reprint) 1; Withers and another v. D. P. P. (1970) 60 Cr. App. Rep. 85 (H L); R v. Newland and others (1954) 1 Q B 154; Queen v. Aspinall and others 1876 Q B D 48 ; Flalsbury’ Laws of England, 4th Edn., para. 58 ref. Minority View-[Per Dorab Patel, J.]
(lo2) Penal Code (XIV of 1860)-
----- Ss. 120-A & 120-B-Agreement coming within mischief of S. 120-BSim.ilar to other agreements under Contract Act, except for its being illegal due to criminal intent-Proof of charge of conspiracy hence required proof of appellant Z having asked approver M to join conspiracy and of M having agreed to do so -Question of acceptance of an offer-Could arise only when an offer made-Nothing in evidence of Z having asked M to join conspiracy, nothing, held, turns on
question whether M carried out Z’s order reluctantly or with enthusiasm.-[Agreement-Proof]. Minority View-[Per G. Safdar Shah, J. Muhnmmad Haleem J, agreeing].
(2o2) Penal Code (XLV of 1860)-
Ss. 120-A & 120-B-Word “conspiracy”-Meaning.-[Words and phrases].
In Corpus Juris Seeundum (Volume 15) `conspiracy’ has been defined to mean: “A combination of two or more persons intentionally participating in the furtherance of a preconceived common design and purpose is essential to constitute a conspiracy------one person cannot conspire with himself. Furthermore, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy. The essence of the offence of conspiracy is the fact of combination of agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other”.
Majority View--[Per Anwarul Haq, C. J.. Muhammad kkram, Karam Elahee
Chauban and Nasim Hasson Sbah, JJ.]
(p2) Penal Code (XLV of 1860--
_-- S. 120-A-Criminal conspiracy-Nature of word “agreement” as used in relation to offence of conspiracy-Not to be construed in any technical sense as understood in law of Contract-No requirement of its being expressed in any formal manner or words---Minds of parties meeting understandingly so as to bring about an intelligent and deliberate agreement to do acts and to commit offence charged alone required-Agreement to commit offence may be express or implied or partly express and partly implied-Each conspirator need not essentially have knowledge of details of conspiracy or of exact part to be performed by other conspirators in execution thereof---Nor details to be worked out in advance to bring a given act within scope of general plan-General plan to accomplish result sought by such means as may from time to time be found sufficient--Meeting of minds, a mutual implied understanding or tacit agreement, all parties working together with a single design for accomplishment of common purpose-Sufficient to constitute conspiracy--Conspiracy arises and offence committed as soon as agreement made and offence continues to be committed as long as combination persists, viz., until conspiratorial agreement terminated by completion of its performance or by abandonment or frustration, or due to some other cause.[Conspiracy-Words and phrases-Agreement].
Corpus Juris Secundum Vol. 15A, pp. 602 to 603; Dr. Gianville Williams on Criminal Law, 2nd Edn. p. 666, Criminal Law by Smith and Hogan, 4th Edn., p. 236 and Safdar Ali’s case P L D 1953 F C 93 ref.
Minority View-[Per G. Safdar Shah, J., Muhammad Haleem, J., agreeing)]
(lp2) Penal Code (XLV of 1860)-
S. 120-A-Word “Consent”-Meaning.-[Words and phrases].
In the Dictionary of English Law by Earl Jowitt the word ‘consent’, which is an essential ingredient of an “agreement”, has been defined to mean “an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil of either side. Consent presupposes three things a physical power, a mental power, and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.”
Black’s Law Dictionary (1968 Edn.), Dictionary of English Law ref.
(2p2) Penal Code (XLV of 1860)-
- S. 120-A-Criminal conspiracy as envisaged in S. 120-A, P. P. C.---Must be product of two consenting minds uninfluenced by any consideration of threat, intimidation, coercion or undue influence----Approver M having been threatened or coerced to agree to conspiracy hence no agreement of criminal conspiracy effected.-[Conspiracy---Agreement].
Denis Dowling Mulcahy v. The Queen (1868) L R 3 H L 306 ; Quinn v. Leathern 1901 A C 495 ; Gour on Penal Law of India, S. 120-A; Maqbool Hussain v. State P L D 1960 S C 382, Mirza Akbar v. The ;: King-Emperor I L R 1940 Lah. 612 ; H. H. B. Gill and another v. The King A I R 1948 P C 128 ; Sardul Singh Caveshar v. State A I R 1957 S C 747 ; Vishindas Lachhmandas v. Emperor I L R 1943 Kar. 449 ; Abdul Aziz v. Emperor 137 1 C 317 Dramath Nath Talukdar v. Saroj Ramjan Surkar (1952) 2 S C R 297 ;T Mirza Akbar v. King-Emperor A I R 1940 P C 176; Webster’s New International Dictionary, 2nd Edn., p. 571, Sura XII, Ayats 8, 9, 10, 15, 16 and 17 of Translation and Commentary on the Holy Quran by A. Yusuf Ali (1973 Print), Black’s Law Dictionary Revised 4th Edn. ; Ashutosh Chattopadhay and others v. Nalinakshya Bandopadhysy and others A I R 1965 1937 Cal. 467 ; Nadir Ali Barqa Zaidi and others v. The State of U. P. A I R 1960 All. 103 ; Bhagwan Swarup v. State of Maharashtra A I R 1965 S C 682 ; Corpus Juris Secundum, Vol. 15-A 908; Halsbury’s Laws of England, 4th Edn., Vol. II, para. 58 ; Corpus Juris Vol., 12.543; 16 American Jurisprudence (II Edn.) page 7; Gangoli on ‘Joint Acts, Abetment and Conspiracies’ (1926) Edn. ref.
Majority View-[Per Anwarul Haq, C. J., Muhammad Akraw Karam Elahee Chauban and Nasim Hasan Shah, JJ.]
(q2) Penal Code (XLV of 1860)
- Ss. 120-A-Criminal conspiracy-Mode o` proof Conspiracy may be established by direct or indirect evidence such as circumstantial evidence-Evidence not to be considered in isolation as so many bits of evidence but whole of evidence to be considered together and its cumulative effect to be weighed and given effect.-[Conspiracy-Proof---Evidence].
Rex v. Brissac 1803 4 East 164 ;
R. v. Duffield and others (1851-52)
5 Cox’s Cr. L C 404; Reg. v. Charless Steward Parnell (1877-82) 14 Cox’s C L C 503 ;
Benbyendra Chandra Pandey and another v. Emperor A I R 1936 Cal. 73; Emperor v.
Shafi Ahmad (1925) 31 Bom. L R 515 ; State v. Shankar Sakbaram Jadhav And
another A I R 1957 Bom. 226 ; Barindra Ku6iar Ghose and others v. Emperor I L R
37 Cal. 467 ; ‘Keshabdeo Bagat v. Emperor A I R 1945 Cal. 93 ; Nadir Ali Barqa
Zaidi and others v. The State of U. P. A I R 1960 All. 103 ; Manghan Khan v.
Emperor A I R 193;
(r2) Criminal Procedure Code (V of 1898)---
-- S. 337-Approver’s evidence-Value of-No rule of law or prudence requires entire evidence of approver either to be accepted or rejected unlike evidence of other competent witnesses-Rule of sifting grain from chaff-Adopted by Courts since long-Approver may try to understate his own involvement in crime or may even try to save some of his friends or relatives-Such weaknesses in approver’s character, however, never prevented Court from appraising his evidence in light of all corroborative circumstances brought on record-A mere wrong statement on a particular point, held, cannot call for rejection of his whole evidence.-[Approver-Evidence].
Asadullah v. Muhammad Ali P L D 1971 S C 541 ref.
(s2) Penal Code (XLV of 1860)-
-- S. 111-Person ordered to kill another aiming at such person in pursuance of such command but killing another person by mistake---Killing of person other than commanded, held, probable consequence of order given and case falls under mischief of S. 111 and sophisticated weapons of tremendous power having been employed agents of conspiracy at spot could not be accused of indulging in recklessness. or excessive use of violence.-[Abetment].
In a case where a person is ordered to kill another and in pursuance of that command he aims at him, but by mistake another person is killed, the case falls under the mischief of section 111, P. P. C. as the killing of the person other than commanded can be deemed to be a probable consequence of the order given. The killing of complainant was a task assigned by appellant ex-Prime Minister to the F. S. F., which he knew was equipped with sophisticated and automatic weapons. As a man of ordinary common sense and prudence he was also expected to know that bullets fired from rifles and automatic weapons have long ranging killing potential, and if they missed the target could hit and kill another person. Thus, when the conspiracy was to murder complainant by using the F. S. F. the danger of another person being killed as a result of a bullet fired at complainant ought to have been visualised as a probable consequence. Limited imagination cannot be pleaded as a defence. . For, a person who sets in motion a plan to murder, and his co-conspirators implement the plan and mount a murderous attack on the victim but miss him and kill a person nearby, he is responsible for the acts of his agents committee in furtherance of the conspiracy, because such a result is the probable consequence of the murderous attack. When a man conspires to murder, and in furtherance of the conspiracy an attack with automatic weapons is mounted on the parson intended to be murdered, he cannot plead that he could not visualize that the probable consequence would be that a bullet may miss the target and kill another person nearby. When sophisticated automatic weapons with tremendous power of rapid firing were to be employed in the execution of the conspiracy, the agents at the spot could not be accused of indulging in recklessness, or use of excessive violence, if they fired 30 rounds in rapid bursts on seeing complainant’s car approaching the roundabout, and then negotiating the same on its forward journey. It has to be remembered that the direction to kill did not contain any restriction that killing was not to be resorted to during the night, or that it should be done during the day, or in any particular manner. Obviously, the actual plan of execution was left to the choice of the concerned assailants, and the law recognises such situation as squarely falling within the ambit of conspiracy. If a person keeps a lion in his house and lets it loose to kill his enemy he cannot escape liability if the lion pounces upon others also. Sophisticated weapons, if one can so say in this context, are no less ferocious than a lion. If you let them loose ask some body to fire with them then you are responsible if they kill all those who come within their range or beaten-zone which naturally extends to a sufficiently wide diameter, and you cannot be heard to say that you desired only one man to be killed by an attack in that manner.
Betts and Ridley v. Rex 22 Cr. A. Rep. 148; Allan Bainbridge v. The Queen 43 Cr. A Rep. 194 ; Boyd v. United States 142 U S 1077; Sahib Ditta v. Emperor 20 P R 43; Po Ya r. Emperor A I R 1919 Low. Bur. 20; Foster Cr. L 372; 1 Hawk P C o, 29 s. 22 and Penal Law of India try Hari Singh Gour, 6th Edo., p. .180 ref.
Queen-Empress r. Mathura Das and others 6 All. 491 and Hainam Singh v. Emperor A I R 1919 Lah. 256 distinguished.
(t2) Penal Code (XLV of 1860)-
Ss. 301 & 111-Application-Section 301, held, applies only to actual killer and not to abettor-Abettors in such case governed by S. 111-As far as actual killer, Legislature considered him not competent to say that he really never intended to do so and such death was never intended by him if he caused death of a person whose death he may have neither intended nor known likely to be caused-Such fiction of law, however, not made applicable to abettors with same rigidity as applicable to actual killers-As for abettors, law laid down two conditions before their being held liable for result achieved-Liability of abettors, held, arises only when act done probable consequence of their abetment and committed under influence of instigation or with aid or in pursuance of conspiracy constituting abetment.[Abetment-Conspiracy].
(u2) Criminal Procedure Code (V of 1898-
-- Ss. 236 & 237-Charge-Conviction for offence not charged with- Doubtful on facts alleged as to which of several offences proved facts constitute---Accused could be convicted of offence actually proved on facts of which accused may be taken to have notice during recording of evidence at trial, notwithstanding charge having not been proved in respect of - such other offence-Being a case falling within contemplation of S. 236 appellants, held, could be convicted of offence shown to have been committed although not charged with same under S. 237Facts however, to be set out in charge with sufficient particularity to enable accused to know what act or acts he is said to have done.[Charge--Conviction].
Emperor v. Isap Mohomed 31 Bom. 218 ; Sinnaswami Chetti v. Pannadi Palani Goundan 26 Cr. L J 1057 ; Raghu Nath v. Emperor 27 Cr. L J 152 ; Jaffar v. Idris Ali P L D 1951 Dacca 128 ; In re : Thaikkottahil Kunheen 25 Cr. L J 212 ; Tamizuddin v. Asimuddin A I R 1946 Cal. 305 ; The State v, Abed Ali P L D 1963 Dacca 806 ; Nanak Chdnd v. State of Punjab A I R 1955 S C 274 ; Surajpal v. State of Utter Pradesh P L D 1956 S C (Ind.) 21 ; Azam Ali v. Rex (1950) 51 Cr. L J 1073 ; Naruirchand v. State I P-52 Cr. L J 246 ; Muhammad Anwar v. State P L D 1956 S C (Pak.) 440 ; Cibakar bas v. Saktidhar Kabirai 54 Cal. 476; Cheda Singh v. King-Emperor A I R 1924 All. 766 ; King v. Charles John Walker A I R 1924 Bom. 450 ; Begu v. Emperor A I R 1925 P C 130 ; Ahmad Ali v. State P L D 196() Dacca 828 Amir Baksh v. State P L D 1960 Lah. 15 ; Fateh Muhammad v. State P L D 1961 Lah. 212 ; State v. Muhammad Latif P I. D 1962 Kar. 756 ; State v. Abed Ali P L D 1963 Dacca 806 and Muhammad Yaqub r. State 1971 S C M R 756 ref.
Minority View--[Per G. Satdar Shah, J., Muhammqd Haleem, J., agreeing].
(1u2) Criminal Procedure Cede (V of 1898)-
-- Ss. 236 & 237-Charge-Application of S. 237 arises only when due t-- a single act or series of acts doubtful as to which of several offences accused may be charged with-Court if upon facts of case in no manner of doubt in such behalf, reliance cannot be made on provision of S. 237-Right from lodging F. I. R. regarding incident of murder of complainant’s father prosecution knowing appellant Z having master minded plan of assassinating complainant-Notwithstanding such position no charge framed against accused appellant Z under S. 111, P. P. C. and case proceeding under S. 109, P. P. C.-Prosecution and trial Court being in no doubt of appellant Z having abetted approver M in respect of assassination of complainant yet his father having been killed in execution of plan---High Court in circumstances could not have entertained any doubt regarding offence committed by appellant B squarely falling within four corners of S. 111, P. P. C. and not S. 109-Case, held, not covered by S. 236 and High Court under S. 237 could not have recorded said appellant’s conviction under S. 111, P. P. C. nor would Supreme Court have jurisdiction to uphold such finding, jurisdiction of both Courts being co-extensive in such behalf Penal Code (XLV of 1860), Ss. 111 & 109.--[Charge-Abetment].
Jaifar and others v. ldris Ali P
L D 1951
Majority View- --[Per Anwaral Hsq, C. J.. Muhammad Akrant, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.].
(v2) Criminal Procedure Code (V of 1898)-
-- Ss. 236 & 237---Churge--Conviction for offence not mentioned in charge-Accusations made in charge set out in form of separate allegations and all ingredients necessary to bring home charge of murder punishable under S. 302 read with Ss. 109 & 111 brought to accused’s notice--Contention that accused was not told, or that he was not charged with specific allegation of murder having been “probable consequence” of his aiding and abetment and he was also liable under S. 111, P. P. C. held, misconceived.
Ranghunath v. Emperor 27 Cr. L J 152 distinguished.
(w2) Criminal trial- ,
-- Bias in Judge-Effect-Trial Bench consisting of five Judges of High Court-Allegations of bias levelled by one accused confined almost exclusively against Acting Chief Justice-Other four Judges constituting Bench independent and capable enough to deliver their own impartial judgment free from any bias or prejudice-Judgment of Bench, in circumstances, held, could not be said to have been tainted--Even otherwise allegations, held, made with ulterior design to make trial a mockery in slanderous abuse of law to shake confidence of public in judiciary and without substance, consequently of no avail,-[Bias].
Minority View-[Per Dorab Patel, J.]
(1w2) Criminal trial-
-- Litigant can file transfer application on ground of bias provided he does not scandalize Court or malign it unnecessarily or falsely---Filing transfer application, scandalizing Judges however different from transfer application filed in manner prescribed in cases reported as M. H. Khandkar v. State, P L D 1966 S C 140 and Yuaf Ali Khan v: State P L D 1977 S C 482.-[Bias-Transfer of criminal cases].
Majority View-[Per AnffArul llaq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim flaaan Shah, JJ.]
(x2) Criminal Procedure Code (V of 1898) -
-- S. 526(3)(6) Transfer of criminal cases-High Court authorised to transfer, on. its own initiative, a criminal case from one subordinate Court to another or to itself in its administrative capacity requiring no notice to parties.-[Transfer of criminal cases].
(y2) Judicial Proceedings--
---.- Party represented by counsel-Not authorised to address Court as a matter of right without permission of Court.-[Counsel and client].
(z2) Court room-----
-- Provision of docks-Purpose of providing docks in Courts-Not to humiliate accused but to protect and segregate them for safe and better administration of justice without interference-High Court seized of case having no dock, dock installed for segregating accused and such necessity proving genuine by fact of very great interest being shown by - public in case, bona fides of Court in installing dock, held, not open to question and no complaint having ever been brought to Court’s notice allegations of appiam having not been able to communicate with his counsel not correct.
(a3) Criminal Procedure Code.(V of 1898)-..
S. 265-M-Court empowered to regulate time of holding its sitting.
Majority View.-[Per Anwarnl flag C. J., Muhammad Akram, Karam Elahee Choahan, Nasim Hasan Shah, JJ. (Dorab Patel, J. agreeing)].
(b3) Court observations-
-- Observation in judgment stating appellant to be a “muslim in name” only-Held, not necessary for disposal of case--Contention, however, that such observations and remarks about appellant disclosed extreme hostility and bias entertained on part of trial Bench against appellant not correct-High Court having found appellant guilty alongwith other co-accused on merits of evidence its findings not influenced by any such extraneous considerations and in fact discussion on point occurring towards end of judgment and conclusion drawn in proposing deterrent punishment-Observations even though not strictly relevant even for limited purpose of inflicting deterrent punishment yet did not thereby vitiate order of conviction.- [Judgment-Conviction].
Majority View--[Per Anearul Ilaq, C. J., Muhammad Akram, Karam Elahee Chauhan and Nasim Hasan Shah, JJ.]
(c3) Court observations-
----- Use of words “principal accused” in judgment in referring to aphellwnt Z-Appellant Z alone having motive behind attempted murder on findings recorded by trial Bench, appellant also being principal amongst co-conspirators having regard to his status in life, description of appellant as principal accused, held, not inapt and not by itself sufficient to betray bias and prejudice of Court against him.[Accused-Prejudice--Bias].
(d3) Criminal trial-.
Bias--Prejudice-Mere suspicion of bias, even if not unreasonable, not sufficient to render a decision void-Real likelihood of bias to he established---Mere apprehension in mind of litigant of likelihood of his not getting justice, such as based on inferences from circumstances, held, not sufficient.-[Accused--Bias-..Prejudice].
Syed Akhlaque Hussain v. Pakistan P L D 1969 S C ?01 ; The President v. Mr. Justice Shaukat Ali P L D 1971 $ C 585 ; Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1976 S C 57 ; Khairdi Khan v. Crown P L D 1953 F C 223 ; M. H. Khondkar v. The State P L D 1966 S C 140 and Muhammad Ismail Chaudhary v. Abdul Khaliq P L D 1960 S C 301 ref.
Anwar v. Crown P L D 1955 F C 185 held not correctly decided.
(e3) Penal Code (XLV of 1860)-
--- Ss. 302/109/120-B etc.--[Murder-case]--Voluntariness of confession-Appreciation of evidence-Letter written . several months after recording confession of accused recommending some job for brother of a confessing accused-Held, hardly a ground for inducing appellant to make a confession or to stick to same.----Father persuading his son to keep on sticking to his confession likely to lead him to gallows in consideration for a petty job for another son-Odd in view of natural course of human conduct-Even otherwise; reiteration of confessions by all confessing accused could not have been due to offer of a petty job to a brother of one confessing accused.--[Confession-Evidence].
Minority view-[Per Dorab Patel, J.]
(e3) Penal Code (XLV of 1960)-
Ss. 3021109/120-B etc.-Approver confessing his guilt in a most heinous crime-Evidence of approver not to be accepted without strong corroboration.-[Approver-Evidence].
Monir’s Law of Evidence (Pakistan
Edn.), p. 1427 ;
(2e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Prosecution not giving reasons for prolonged detention of approver, a highly placed Government servant, inference to be drawn of charges of very serious nature having been levelled against him by detaining authority (Martial Law authorities)-Approver, hence, under strongest possible temptation to give false evidence in order to please investigating agency.-[Approver].
Abdul Qadir v. State P L D 1956 S C (Pak.) 407 ref.
(3e3) Penal Code (XLV of 1860)-
Ss. 302/109/120-B etc.-Approver cannot corroborate himself---Trial Court, held, erred in accepting approver G’s evidence in respect of bullets bearing lot No. 661/71 having been issued only to Federal Security Force.-[Approver].
(4e3) Penal Code (XLV of 1860)-
---Ss. 302/109/120-B etc.-Complainant’s rejoining appellant Z’s party casting doubt;, on his evidence about reasons for his suspicion of Z being murderer of his father-Element of hatred in complainants relationship with Z being on ascendant when complainant gave evidence in trial Court, complainant, held, cannot be described as a disinterested witness.-[Witness].
(5e3) Penal Code (XLV of 1860)-
--- Ss. 302/109/120-B etc.-Complaints registered all over country for attacks on complainant but no documentary evidence showing Z having been implicated in such complaints-Absurd, held, in such , background of hatred and enmity against complainant to contend National Assembly incident having given Z a motive to murder complainant.-[Motive].
(6e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Politicians abuse each other in very offensive language without taking it to heart-Seasoned parliamentarian tolerate criticism seemingly absolutely intolerable and offensive to persons in other walks of life-Appellant Z being a seasoned politician, held, could not have a motive for killing complainant merely for reason of having criticised him violently.-[Motive].
Niharendu Dutt Majumdar v. Emperor A I R 1942 F C 22 and 4li Hussain Jamali v. Government of Sind P L D 1974 Kar. 283 ref.
(7e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Documentary evidence disclosing weapons of same calibre being available in frontier region and having been supplied by Ammunition Depot to Frontier Corps and to Army Units also, exclusive possession of Federal Secuaity Force, held, not to be inferred.
(8e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Evidence produced by prosecution appearing impressive because of number of witnesses examined and documents produced but, held, not sufficient to prove guilt of appellants Z and A.-[Evidence-Proof],
Minority view-[Per G. Safdar Shah, J., Muhammad Halecm, J, agreeing].
(9e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Complainant in his F. I. Rs. and statement recorded in connection with incident at station I not mentioning name of appellant Z nor even attending to fact of such appellant having engineered such attacks-Complainant in F. I. R. relating to incident at L though mentioning name of appellant Z yet such document to be scrutinized with caution--Scrutiny of F. I. R. revealing attack having been made due to political reasons, for stoutly opposing Government policies and for being virulent critic of appellant Z and having been threatened by Z on floor of Assembly-Appellant Z held, could not be said to have been directly named in F. 1. R. and complainant only expressed his opinion or suspicion of attack having been perhaps made on him at behest of appellant Z and not that Z alone was accused by complainant.
(10e3) Penal Code (XLV of 1860)--
-.- Ss. 302/109/120-B etc.-Complainant appearing to be highly sensitive in nature capable of taking strong stand on issues even at risk of danger to his person and possessing inconsiderable courage to forcefully express his views, not possible, held, to believe his having reconciled with or failed to accuse appellant 7. if appellant had anything to do with murder of his father or had engineered various attacks on him.
(11e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Prosecution having been able to lay its hands on and actually relied upon direct and express evidence of Approver M, constituting conspiracy-Falling back upon circumstantial evidence, held, not permissible.-[Evidence].
(12e3) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Canvassing high probabilities in a case against accused-Held, can never be a ground to hold him guilty.[Evidence].
Woolmington v. D. P. P. 1935 A C 462 ; Brij Bhushan Singh v. Emperor A I R 1946 - P C 38 ; Safdar Ali v. State P L D 1953 F C 93 ; Muhammad Luqman v. State P L D 1970 S C 10 ; Fazlul Quadir Chaudhary v. Crown P L D 1952 F C 19 ; Sarwan Singh v. State of Punjab P L D 1957 S C (Ind) 555 and Ramzan Ali v. State PLD 1967 S C 545 ref.
(13 e 3 ) Penal Code (XLV of 1860)
--Ss. 302/109/120-B etc.-Evidence of main approver either unnatural and improbable and not having ring of truth about it but also full of omissions, contradictions and improvements hence not to be relied upon: [Evidence-Approver].
(14 e 3) Penal Code (XLV of 1860)-
Ss. 302;109/120-B etc.-Confessional and approver’s statements-Not only contradicting themselves but also each other on crucial and material points-Statements not only of no use against appellant Z, not only because of being untrue, but also because they could only be taken into consideration against said appellant under S. 30, Evidence Act-Such statements could be relevant only if independent evidence existed to connect appellant Z with commission of crime-No such independent evidence existing, confessional. statements, held, have to be disregarded.-[Confession-Approver].
Joygun Bibi v. State P L D 1960 S C 313 ; Ibrahim and another v. State P L D 1963 Kar. 739 ; Shera and 3 others v. State P L D 1972 Lah. 563 ; Kashmira Singh v. State of Madhya Pradesh A I R 1952 S C 159 ; and L. S. Raju and others v. State of Mysore A I R 1953 Bom. 297 ref.
Majority View-[Per Anwarul Haq, C. J., Muhammad Aram, Karam Elahee Chauhan and Nasim Hasan Shah, JJJ
(f 3) Penal Code (XLV of 1860)-
--Ss. 302/109/120-B etc.-Sentence-Mitigation-Appellant a former Prime Minister, using apparatus of Government, viz., agency of Federal Security Force, for a political vendetta, a diabolic misuse of instruments of State power-Prime Minister’s powers used to stifle investigation and later to pressurise complainant in rejoining his political party-No extenuating circumstances, held, spelt out in circumstances and High Court rightly inflicted normal penalty sanctioned by law.-[Sentence].
(g 3) Expunging of remarks in Judgments-
--Remarks in judgments in nature of a theoretical exposition of duties and conduct prescribed for a ruler by Islam and observations as to abuse of constitution by appellant-Not necessary for disposal of case-Subject not forming part of trial nor High Court having been inquiring into question whether appellant a good Muslim or a muslim only in name -Remarks expunged-Certain other paragraphs of judgment as could safely be deleted without in any manner affecting its integrity, meaning, and logical sequence also expunged.
(h 3) Penal Code (XLV of 1860)-
S. 94-Offence committed under threats-Only threat mentioned by appellant being approver M’s telling him that if he did not fall in line he would find himself on road-Such, held, did not mean a threat of instant death ; at best it could mean removal from service-Benefit of S. 94-Not available in circumstances.
(i 3) Penal Code (XLV of 1860)-
Ss. 302/109/120-B etc.-Sentence-Mitigation-Appellant 65 years of age and possibly suffering from heart disease-Appellant A in spite of his experience and maturity, however, easily falling in line with conspiracy to assassinate complainant and taking special steps over a prolonged period towards its implementation-Appellant a willing instrument in carrying out conspiracy and directly supervising its execution-Appellant, held, deserved no lenient treatment in matter of sentence in circumstances and legal sentence imposed by High Court maintained.-[Sentence].
Bodhi alias Faqir Hussain and 2 others v. The State P L D 1976 Lah. 1418 and M. Siddique Kharal v. Pakistan through the Secretary to the Government of Pakistan, Cabinet Secretariat P L D 1977 Kar. 1044 ref.
( j 3) Federal Security Force Act (XL of 1973)---
S. 22 read with Ss. 9 & 12 and Penal Code (XLV of 1860), Ss. 76 & 94-Contention that employees of Federal Security Force being bound by their oath to obey all orders of their superiors and bound in allegiance to President by name (appellant Z) and having been made to do unlawful acts under coercion and threats of physical violence besides having been brainwashed, appellants employees of such force could not be guilty of offence charged with-No such oath as alleged found on records-Form of affirmation as set out in Schedule II of Act however obliging members of Force to observe and obey all commands of any officer even to peril of life-Qualifying phrase “lawful” though not used in such form of affirmation as done in Police Rules (Punjab) r.12.28, yet absence of adjective “Lawful” made no difference for reason of S. 9 of Act having laid down : “It shall be the duty of every officer or member of the Force promptly to obey and to execute all orders and warrants lawfully issued to him by any competent authority”-Same word “Lawful” also used in Ss. 12 & 13 of Act-Obligation, held, did not extend to execution of unlawful orders either under Act or under Penal Code, 1860-Punjab Police Rules, 1934, r. 12.28.--[Interpretation of statutes].
Niamat Khan and others v. The Empress 1883 P R 17; Queen-Empress v. Latif Khan I L R 20 Born. 394 ; Allahrakhio and another v. Crown A I R 1924 Sind 33 ref.
Minority view-[Per Dorab Patel, J.]
(1 j 3) Federal Security Force Act (XL of 1973)-
-- S. 22 read with Ss. 9 & 12 and Penal Code (XLV of 1860), Ss. 76 & 94-Confessions of three accused appellants being genuine and voluntary, their appeals liable to be dismissed-No case of leniency in punishment, held, made out.-[Confession-Sentence].
(k3) Criminal trial-
Consent-Proof-Questions of inferring consent from approver’s subsequent conduct-Can arise only when approver invited to join conspiracy.-[Consent-Proof-Approver].
(l3) Criminal trial-
--Arms Expert-Delay in forwarding empties to Arms Expert---Relevant only when weapon of attack’ also’ sent with empties-Sten-guns allegedly used in attack not sent to Arms Expert-Nothing, held, turns on delay in forwarding empties for examination-Even otherwise nothing shown for police having used such delay in fabricating evidence, nothing held, turned on delay.-[Delay].
Noor Alam v. The State P L D 1978 S C 137 ref.
(m3) Evidence-
Hearsay evidence-Admissibility-Hearsay evidence does not become admissible merely because of its having been given in answer to a question put in cross-examination.
(n3) Motive-
Corroboration-Corroboration of evidence of accomplice-Cannot be had by motive itself-Motive can only be a weak link in chain of corroborative evidence.-[Accomplice-Evidence].
Jit Singh v. Emperor A I R 1925 Lah. 526 ; Jiwan Singh v. Emperor A I R 1934 Lah. 23 and Kartar Singh v. Emperor A I R 1936 Lah. 400 ref.
Abdur Rashid v. Umid Ali P L D 1975 S C 227 and Mst. Razia Begum v. Hurayat Ali P L D 1976 S C 44 distinguished.
(o3) Criminal trial-
-Cross-examination at wrong stage-Counsel cross-examining approvers on allegation of appellant Z having ordered assassination of politicans criticising him-Manner of conduct of some cross-examination however totally illegal-Counsel sometimes permitted to cross-examine after appellant’s counsel completed his cross-examination-Such part of evidence of witness, held, had to be ruled out and after its being ruled out no evidence left to show appellant Z having ordered assassination of his critics.-[Cross-examination].
(p3) Criminal trial -
-- Appreciation of evidence-Appellant Z not named as assailant in F. I. R.-Complainant only pointing finger of suspicion against appellant-Suspicion if not justified, nothing would turn upon its being lodged promptly but on other hand might mean complainant having had no time to consider whether his suspicion could bear scrutiny of reason-As far as earlier incident complainant not even pointing finger of suspicion, at appellant Z-Contention raised by appellant’s counsel regarding complainant having made a statement to police voicing his suspicion against sycophants of appellant Z and against his old local enemy--Held, not inconsistent with complainant’s speech in Assembly.-[Evidence].
(q3) Criminal trial-
-- Appreciation of evidence-Submission that complainant’s conduct in joining appellant Z’s political party after his father’s murder falsified his evidence and proved his having falsely levelled allegations against appellant Z for murder-Held, correct-No person with any self respect would join or rejoin a party headed by his father’s murderer.-]Evidence].
(r3) Criminal trial-
Appreciation of evidence-Complainant after rejoining appellant Z’s party going round country propagating thoughts of appellant Z, complainant, held, voluntarily rejoined Z’s party due to having realised his suspicions against Z being not well-founded for reasons of his having many other enemies.-[Evidence].
(s3) Criminal trial-
-- Appreciation of evidence-Evidence of accomplice not being acceptable without corroboration and talk of appellant Z with him to keep Federal Security Force out being not supported by any evidence and approver having been detained for some months under Martial Law (more than a hundred files about him having been seized and one or more investigations being conducted into his activities)---Circumstances held, reacted against veracity of approver.--[Evidence---Accomplice--- Approver].
(t3) Criminal Procedure Code (V of 1898)-
-- S. 161-Statements under S. 161-Do not have to record minor details of a witness’s evidence---Police Officer however has to record every material particular of a witness’s statement-Such not being done, prosecution must suffer-Material omissions in Police statements, held, cannot be explained away on ground of such statements being recorded hurriedly.-[Witness].
(u3) Criminal trial-
.-- Appreciation of evidence-Complainant having a motive for taking revenge, having been heard hurling threats against appellant Z, obvious and simple explanation of inquiry about complainants’s gunman could be fear of Police Officers lest complainant might implement his threats through his gunman.--[Evidence].
(v3) Criminal trial-
Appreciation of evidence-Surveillance against all and sundry being order of day, surveillance of complainant, held, could not mean its having been done to murder him.-[Evidence].
(w3) Criminal trial-
- Inquiry Tribunal’s reports-Appreciation of evidence--Judicial notice could be taken of fact of reports of tribunals of inquiries being not published-Prosecution’s allegation of prevention of Chief Minister from publishing report by Prime Minister Z, Chief Minister having been mentioned in calendar of prosecution witnesses, failure to examine him, negatives plea advanced by prosecution--Refusal to examine witness on ground of his having turned hostile--Held, not at all acceptable in view of such witness having been convicted under Defence of Pakistan Rules during appellant Z’s regime.-[Evidence-Judicial notice-Witness].
(x3) Criminal trial--
.-- Appreciation of evidence-Complainant not able to give a clear idea of manner of firing -Complainant’s mother and aunt in a better position to describe manner of firing yet such two ladies not examined by prosecution nor any explanation giver. for not examining them-Evidence on point, held, not conclusive:-[Evidence--Witness].
(y3) Criminal trill-
--- Appreciation of evidence-Fact of reports on progress of investigations in murder cases being regularly put up to appellant Z -Gives no rise to adverse inference-Any one in murder case, held, would follow progress of case with utmost interest 2nd obtain information.-Evidence.
(z3) Criminal Procedure Code (V of 1898)--
-- S. 423-Criminal appeal admitted to regular hearing-Could not be withdrawn-Appeal admitted can be dismissed only after perusing record of case and on Court being satisfied of conviction of appellant having been made according to law.--Appeal (criminal)].
King-Emperor v. Dahu Raut A 1 R 1935 P C 89 and Ishar Das v. Nur Din A I R 1942 Lah. 298 ref.
(a4) Criminal Procedure Caste (V of 1898)--- .
---- S. 5:57’--irregularities occasioning failure of justice-Conviction, held, can be quashed on ground of such irregularities.
Minority View-[Per Mohammad Haleem, J.]
(b4) Criminal trial-
-- Appreciation of evidence-Evidence of approver, held, suffering from inherent weaknesses but tending to show his being a man of conscience which conduct wholly; unnatural in background of facts elicited in his evidence-Overall examination of evidence of approver M-Not of such quality as to call for reliance--Approver, hence not reliable[Evidence-Approver].
(c4) Criminal trial-
Omissions and improvements -- Omissions and improvements in evidence of approver M-Vitally affect truth---fullness of approver and their resolution by High Court in favour of prosecution gave illusory value to his evidence-Such course, held, wholly unjustified-Benefit of doubt in evidence, held further, must in law go to accused.-[Benefit of doubt-Evidence-Approver].
(d4) Penal Code (XLV of 1860)-.
Ss. 302/109/1120-B etc.-Appreciation of evidence-Approver M must have been aware of incident at station 1-Approver’s reply on crossexamination that he had a hunch of it, held, hardly inspires his role as an approver -Difficult to believe his being apprehensive of his life while receiving all favours from appellant Z-Explanation resting on apprehension, held further, tailored to justify his reaction to direction to kill complainant and such appearing to be a padding.-[Evidence Approver].
(e4) Penal Code EXLV of 1860)-
- Ss. 302(109/120-B etc.-Appreciation of evidence-Approver M’s evidence unnatural, lacking guarantee to inspire confidence-Approver while giving evidence appearing sitting on fence, trying to minimise his role-Such conduct not ordinary conduct of approvers-Evidence of approver not appealing to wisdom and not worthy of belief-Case of conspiracy as such, held, demolished-Corroborative. evidence in respect of such approver’s testimony being inconclusive and failing to lend assurance to his lpse dixit.-[Evidence-Approver--Conspiracy].
(f4) Criminal trial-
Appreciation of evidence-Evidence though to be read as a whole yet, held, each piece of evidence to be free from doubt before such evidence could be taken into consideration.-[Evidence].
[Per G. Satdar Shah, J., Muhammad Haleem, J. agreeing]
(g4) Circumstantial evidence,-
-- Merits and demerits.
Like most things, circumstantial evidence held has its merits and demerits Circumstantial evidence has been commented upon thus:----
“When circumstances connect themselves with each other, when they form a large and a strong body, so as to carry conviction to the minds of a jury, it maybe proof of a more satisfactory sort than that which is direct. So where the proof arises from the irresistible force of a number of circumstances, which we cannot conceive to be fraudulently brought together to bear upon one point, that is less fallible than under some circumstances direct evidence may be.”
Sir Afred Will’s Circumstantial Evidence. pp. 46-47; Law of Evidence by Monir, 1974 Edition, Vol. I, p. 23 and Lal Shah v. The State 1970 S C M R 743 ref.
(h4) Evidence Act (I of 1972)-
-- S. 65(c)-Secondary evidence-Propel application made for production of original document from custody of Government and said document stated by State Counsel to be not traceable--Case, held, clearly made out for production of copy of said document.-[Evidence].
(l4) Penal Code (XLV of 1860)-
-- Ss. 302/109/120-B etc.-Appreciation of evidence-Complainant anxious to reconcile his differences with appellant Z but not Z, he having consistently spurned complainant’s advances-Prosecution stand, held, not justified-[Evidence].
(j4) Penal Code (XLV of 1860)-
-- Ss. 302/109 etc.-Appreciation of evidence-Object to keep a watch on activities of complainant-To prevent him from getting in touch with insurgents or to create a law and order situation in country--Prosecution stand, held, not justified-[Evidence].
(k4) Criminal trial-
-- Proof-Failure to assert a fact when natural to assert it-Held: Amounts in effect to assertion of non-existence of fact.-[Proof]
Abdul Hashem v. State 1969 P Cr. L J 491 ; Ekabbar Ali and others v. State 1971 P Cr. L J 275 ; Hazara Singh and others v. Emperor A I R 1928 Lah. 257; Ram Bali and others v. State A I R 1952 All. 289 and Parikhit Thapa v. Nidhi Thapa and others A I R 1954 Orisa 31 ref.
Balmukand v. Emperor A I R 1915 Lah. 16; Badri Chaudhary and others v. King-Emperor A I R 1926 Pat. 20; Iltaf Khan v. Emperor A I R 1926 Pat. 362; In re : Guruva Vannan A I R 1944 Mad. 385; Abdul Monsur Ahmad and another v. The State P L D 1961 Dacca 753 and Wigmore on Law of Evidence, 1970 Edition, p. 154 distinguished.
(l4) Penal Code (XLV of 1860)--
- S. 120-B-Conspiracy-Proof-Conspiracy-Relevant time: When conspirators engaged themselves to do a particular thing which alone, held could throw light as to state of a man’s mind and to make probable consequence foreseeable.-[Proof].
(m4) Penal Code (XLV of 1860)-
S.302/109/120-B etc. -Appreciation of evidence--Abettor cannot be held guilty unless result likely to follow or expected to follow from act abetted and as such foreseeable-Appellant Z allegedly having told approver M of his predecessor having already been given direction to get rid of complainant and his further asking him to tell Director Operations to get on with job and produce dead body of complainant or his body bandaged all over-Appellant Z, held, could not in circumstances have foreseen death of complainant’s father as a probable consequence of immediate object of conspiracy.-[Evidence-Abetment].
(n4) Penal Code (XLV of 1860) -
-- Ss. 109 & i 11-Difference stated.
Unlike the proviso to section 111, P. P. C. in which the expressions “probable consequence of the abetment” and “the act done or committed under the influence of the instigation or with the aid or in pursuance of the conspiracy which constituted the abetment” appear, and will have to be given their proper meaning, there is no such requirement in section 109,P. P. C. Furthermore, section 109, P. P. C. is obviously a residuary section whereas section 111, P. P. C. is a special section applicable only to the facts of the case of present kind. Section 109, P. P. C. from its language contemplates the abetted act to have been completed that is, if murder instigated and the victim is killed, only then it provides for the punishment of such an abetment but only when there is no other specific provision in this behalf; whereas section 111 deals with the different act having been committed as a probable consequence of abetment. The different act in section 111 would include an offence under section 301, P. P. C. or for that matter any other section of the Penal Code. The distinction thus is apparent between the two sections. In one the abetted act is completed and in the other a different act is committed as a probable consequence of abetment; and where the Code provides a specific Penal provision for dealing with a situation where a different act is committed, w section 109 will have no application; for, that is a residuary provision. It is section 111 which will be applicable. Accordingly, it is idle to contend that the abettor can be convicted under section 301 read with section 109, P. P. C.
(o4) Criminal Procedure Code (V of 1898)-
Ss. 236 & 237 read with Penal Code (XLV of 1860), Ss. 301, 302, 109 & 111-High Court by framing charge against appellant Z under S. 302 read with Ss. 301 & 109. putting him on notice of his not being charged for an offence under S. 11 I-Contention, in circumstances, held, could not be advanced that appellant ought to have taken notice of fact of High Court might perhaps convicting him under S. 111 especially when neither prosecution nor High Court conscious of such position even inferentially.-[Charge].
Muhammad Latif v. State P L,D 1966 S C 201 ref.
(p4) Criminal Procedure Code (V of 1898)-
S. 537 read with Penal Code (XLV of 1860), Ss. 109 & 111-Offence under S. 109, P. P. C.-Entirely different from one covered by S. 111, P. P. C.-Appellant Z having not been charged under S. 111, trial Court cannot be said to have committed any irregularity liable to be cured under S. 535 or 537-Although even an illegality committed during trial curable in view of amended S. 537 yet effect of section could not be stretched to limits of absurdity and unreasonableness and set provisions of Cr. P. C. at naught.
(q4) Criminal trial-
Cross-examination-Illegality of-Grant of permission to counsel of an accused to cross-examine certain prosecution witnesses after their cross-examination having been already concludes by other side--Held, illegal, more so when damaging material brought on record by such method and used against some accused to their prejudice.[Cross-examination-Prejudice].
Motiram Narwari v. Lalit Mohan Ghose A I R 1920 Pat. 94; Haji
Bibi v. H. H. Sir Sultan Mahomed 32 I L R 599; Kirmany & Sons v. Agha Ali Akbar A I R 1928 Mad. 919 and Muniappan v. State of Madras A I R 1961 S C 175 ref.
(r4) Evidence Act (I of 1872)-
S. 3-So-called confessional statement of appellant A-Wholly exculpatory in nature hence not a confession at all-Confession having been retracted in trial Court of no use whatsoever-Statement filed from Jail fully implicating himself in commission of crime-Held, in admissible in evidence against appellant Z due to its being no evidence under S. 3. Evidence Act 1872 and not being put to said appellant to afford him opportunity to explain his position. Criminal Procedure Code (V of 1898), S. 342-[Confession-Evidence.]
William Cooper v. Emperor A I R 1930 Bom. 354: Maadec Prasad v. King-Emperor A I R 1923 All. 322; Mt. Sumitra v. Emperor A I R 1940 Nag. 287 and Tahsimiddin Ahmad v. Emperor A I R 1940 Cal. 250 ref.
(s4) Criminal trial--
-.-- Admission of accused-Conviction-Examination of all evidence on record leading Court to conclude prosecution having not been able to prove its case beyond reasonable doubt-Held. Dangerous is such eventuality to convict accused on basis of his own plea of guilty especially in a murder case, accused being held not to plead guilty to section of Penal Code but to facts of case constituting ingredients of offence.-[Admission-Conviction-Plea of guilty].
H. Paryathamma Hiremath v.’ State of Mysore A I R 1966 Mys. 125;
State of Mysore v. Bantra Kunjanna A I R 1960 M ys. 177; In re: U. R: Ramaswami A I R 1954 Mad. 1010 ; Woolmington v. The Director of Public Prosecutions 1935 A C 462; Brij Bhushan Singh v. Emperor A I R 1946 P C 38; Safdar Ali v. The Crown P L D 1953 F C 93; Muhammad Luqman v. State P L D 1970 S C 10; Fazlul-Quader Choudbury v. Crown P L D 1952 F C 19; Sarwan Singh Rattan Singh v. State of Punjab P L D 1957 S C (Ind), 555; Ramzan Ali v. The State P L D1967 S C 545 and Show Moni Shaw v. The State A I R 1953 Cal. 634 ref.
Majority View-[Per Anwarul Haq, C. J., Muhammad Akram, Karam Elahee Chauhan send Nasim Hasan Shah, JJ.]
[Dorab Patel, Muhammad Haleem and G. Safdar Shah, JJ. not agreeing and holding appellants Z and A not guilty bat agreeing a’ to guilt of other appellants].
(t4) Penal Code (XLV of 1860)-
Ss. 302/109/120-B etc.-[Murder-case]-Appreciation of evidence----By and .large trial held substantially according. to provisions of Criminal Procedure Code, 1898 ---- Any omissions, errors, or irregularities, or even illegalities likely to have crept in - Either immaterial, or explainable and of such nature as to vitiate trial and certainly curable under 5.537, Criminal Procedure Code, 1898Allegations of bias against presiding Judge of Bench and criticism of actions and orders made by Bench-Not justified-Trial Bench doing its best to conduct trial as fairly as possible in circumstances then prevailing-Oral and documentary evidence establishing beyond reasonable doubt (i) motive on part of appellant Z alone to do away with complainant ; (ii) absence of any such motive on part of any other accused; motive for murder not shown on part of any other accused besides Z despite lengthy cross-examination of prosecution witnesses nor shown to be with any other person in spite of Prime---Minister’s Chief Security Officer’s directions to Investigating Officer to examine every possible motive for murder; (iii) appellant Z’s entering into conspiracy with approver M, Director-General of Federal Security Force. to get complainant eliminated through agency of Federal Security Force ; exact direction given by appellant Z to approver to produce dead body of complainant or his body bandaged all over ; (iv) despite his protest at first against carrying out of such task subsequent conduct of approver M showing his having become a voluntary participant in design to eliminate complainant and for such purpose inducing appellant A into conspiracy; (v) induction by appellant A of approvers GH as well as GM, XII and RI directing them to assist QN in task and also giving of instructions by appellant A to witnesses AB and I’A for supply of arms and ammunition .to GH and GM for such purpose ; (vi) selection of GH specially made for such purpose due to his being a Commando Instructor in Army for 14 years and having demonstrated his capabilities by running a Commando course for Federal Security Force under direct supervision of appellant A and his having been given rapid promotions from A. S.1. to S. 1. and then to Inspector in less than a year ; (vii) making of an abortive attack on complainant on an earlier date at another station in pursuance of such conspiracy ; (viii) recovery of crime empties of type in use with units of Federal Security Force in connection with inquiry made on making of F. I. R. by complainant and filing case as untraced despite complainant (a member of National Assembly) having tabled a privilege motion in National Assembly ; (ix) appellant Z’s further instructions to approver M when at station Q to take care of complainant during latter’s proposed visit to Q and approver M’s giving instructions to the local Director W ; (x) existence of conspiracy to get complainant killed during his visit to station Q but escape of complainant due to W having not played assigned game supported by documentary and oral evidence ; (xi) shifting of scene of activities to station L : whole plan again masterminded by appellant A through approver GH etc. ; launching of attack on complainant’s car when returning home alongwith his father and others after attending a marriage ceremony; (xi!) firing of 30 rounds from automatic weapons at a carefully selected road junction resulting in complainant’s father being hit and killed ; (xiii) actual attack made by appellants AI and RI after finalisation of plan by consultation among approver G and appellants GM, Al and R1; (xiv) complainant immediately making F. I. R. clearly stating attack being launched on him as a result of political differences ; (xv) calibre of 24 empties recovered from scene of crime showing them of 7.62 mm. bore and having same marking of 661171 as crime empties recovered at earlier incident from station I ; (xvi) investigation not making any headway : (xvii) tribunal of inquiry appointed but its report not allowed to he puMsbed by appellant Z ; original report of tribunal not traced but a letter written by (`.h:°f Minister to appellant Z (Prime Minister) giving gist of conclusions and findings of tribunal and also directions given by tribunal far further investigation ; filing of case :.r. untraced ; (Xyiii) complaints continued clamour for justice and demand of appellant Z’s resignation on ground of not being able to get justice as long as he .remained n power ; (xix) investigation not being allowed to travel in direction of Federal Security Force due to intervention of Z’s Chief Security Officer despite identity of ammunition used in both indents at I and L ; (xx) evidence of Senior Provincial Police Officer of not having free hand in investigation and every thing being done according to directions of Chief Security Officer to Prime Minister and former’s Assistant ; (xxi) reopening of case revealing documentary evidence showing intermeddling of Prime Minister Z’s Chief Security Officer and his Assistant with investigation ; both such officers’ frequent visits to L during pendency of inquiry before Tribunal and subsequently ; (xxii) testimony of Chief Security Officer supported by relevant documents unmistakably showing all having been done under directions of appellant Z and such appellant being kept informed of day to day progress of activities ; (xxid) keeping of complainant under special surveillance after commission of murder at L and submission of reports to Z regarding complainant’s activities and utterances in quick succession and giving physical description and identity of even gunman engaged by complainant to guard him ; (xxiv) initiation of efforts by appellant to bring complainant back to fold of his party and working on mind of complainant by two experienced Police Officers in a subtle manner and their ultimate success in convincing complainant that his political future and safety of his own life and family lay in rapproachement with Prime Minister ; (xxv) entrustment of task to Director-General of Federal Security Force ,approver), he being made personally responsible for its execution, and induction of various subordinate officers at various levels at various stages for execution of conspiracy through employment of highly sophisticated weapons of Federal Security Force as well as its trained personnel ; (xxvl) highly placed officers and a host of other smaller officers not expected to have concocted a false story against former Prime Minister under pressure from Martial Law authorities; (xxvii) evidence of approvers and others corroborated by contemporaneous documents and circumstances ; (xxviil) circumstances giving no support to contention of case being politically motivated or as result of international conspiracy ; (xxix) case registered almost 3 years before ouster of appellant Z from power, clear indication being available as to possible identity of assailants, not only in kind of ammunition used in both incidents but also in report of Inquiry Tribunal and deliberate stultification of investigation despite availability of such clues ; (xxx) no pressure on approver GM and other witnesses alleged by defence and no reason for their falsely implicating Director, Federal Security Force specefied ; (xxxi) evidence on record leading to no other conclusion than that of accused appellants being concerned with murder, oral evedence being supported by documents and circumstances and (xxxii) prosecution in view of very detailed and exhaustive examination of evidence of two approvers supported by mass of oral and documentary evidence,fully successful in establishing existence of conspiracy , identity of cons pirates, and death of deceased beinh probable consequence of such conspirancy---Accused held, rightly convicted –[evidence]
Crmir;al Appeal NO. 11 of 1978
Yahya Bakhtiar, Senior Advocate Supreme Court, Ghulamaly Memon, D. M. Awan, Muhammad Sharif Abdul Hafiz Lakho, Advocates Supreme Court instructed by Noor Ahmed Noorl and AL ,1. Siddiqi, Advocates-onRecord for Appellant.
Ijaz Hussain Batabi, Senior Advocate Supreme Court and Special Public Prosecutor instructed by M. A. Rahman, Advocate-on-Record, Mahmood A. Shalkh, Advocate and assisted by Riaz Ahmad, Assistant Advocate-General (Punjab) for the State.
Dates of hearing : 1st and 15th April; 20th to 24th, 27th to 31st May; 3rd to 7th, 10th to 14th June; 1st to 5th, 8th to 12th, 15th to 19th, 23rd to 26th, 29th to At July; 1st, 2nd, 5th to 9th, 12th, 13:h, 15th, 16th, 19th to 22nd August; 16th tot 20th, 23rd to 27th, 30th September; 1st to 4th, 7th to 11th, 14th to 18th, 21st to 25th, 28th to ‘list October; 1st, 4th, 5th, 16th, l8th to 21st, 23rd November; 2nd, 4th, ~th, 12th to 14th, 16th to gist and 23rd December 1918.
Criminal Appeal No. 12 of 1978
- wilan Qurban Sadln 1kram, Muhnmmcd sadiq Advocates Supreme Court instructed by Sh. Abdul Karim Advocate-on-Record (absent) for Appellant.
ijaz Humoin Batalri, Senior
Advocate Supreme Court and special
Public Prosecutor instructed by M, A. Rahman, Advocate-on-records Mahmood Shaikh, Advocate and assisted by Riaz
Ahmad Assistant Advocate General (
Dates of hearing 22nd August 21st 23rd December 978
Criminal Appeal No. 13 of 1978
Irshad Ahmed Qureshi, Advocate Supreme Court for Appellants.
Ijaz Hussain Batalvi Senior Advocate Supreme Court and Special Public Prosecutor instructed by M. A. Rah-man, Advocate-on-Record, Mahmood A. Shaikh, Advocate and assisted by Riaz Ahmud, Assistant advocate general (Punjab) fur the State.
Dates of hearing 21st August; 21st and 23rd December 1978.
INDEX
[Leading Judgment by Anwarul Haq, C Ja
Sr. No. Description of documents Pages
1. Statement of the case ... ... .. , 59
2. Findings of the High Court ... ... 64
3. Submissions on behalf of Z. A. Bhutto ... ... 65
4. Three applications by Z. A. Bhutto ... ... 65
5. Bhutto’s personal appearance in Supreme Court ... 66
6. Personal appearance of other appellants and their admissions ... ... ... ... 67
7. Political considerations irrelevant ... -, 67
8. Detailed contentions on merits on behalf of Bhutto ... 68
9. Submissions on behalf of Mian Abbas ... 71
10.Submissions on behalf of remaining three appellants ... 71
11.Dismissal of Bhutto’s Applications Nos. 7-9/78 ... 71
12.Objections as to the mode of trial ... ... 75
13.Question of prior trial of complaint case ... 75
14.Objections under sections 32 and 60 of the Evidence Act and hearsay evidence….77
15.ReSection 10, Evidence Act, embodying a special rule as to admissibility of evidence in conspiracy cases ... 91
16,Conclusions as to section 10 of Evidence Act .. , 99
17.Meaning of the phrase “reasonable ground to believe” 100
18. Application of section 10, Evidence Act to- the present case , 104
19. Scope and application of section 30 of the Evidence Act regarding confessions and statements made under section 342,Cr. P. C. by co-accused ... .. , 105
20. Meaning of the term confession... ., 106
21. Position in respect of section 342, Cr. P. C. statements 107
22. Confession is not proof against co-accused, 108
23. Position of confessions and 342 statements in the present case... 109
24. Requirements of sections 337 and 164, Cr. P. C. regarding approvers and their statements . ... 110
25. Requirements of section 342, Cr. P. C. regarding examination of accused at close of prosecution ... 113
26. Scope and application of section 537, Cr. P. C. to cure irregularities in trial ... ... ... 118
27. Application and scope of section 540-A of the Cr. P. C. in the matter of trial proceedings conducted on certain dates in absence of appellant, Z. A. Bhutto ... ... 123
28. Bhutto’s absence glue to illness but his counsel were present ... ... ... ,., „, 125
29. High Court’s Order dispensing with Bhutto’s attendance was justified .. ,:. ... ... ... 131
30. Effect of the failure of the High Court to pass a formal order under section 540-A, Cr. F. C, and to record reasons ... 133
31. Omission to record reasons not material, if requirements of section otherwise satisfied ... ... ... 135
32. The “Damn it” incident on 17th December 1977 during the trial ............ 142
33. Non-supply of copies of Police Statements of certain witnesses to t he Defence ... ... ... ... 144
34. Re - Sections 161, 162, 172, 265.C, Cr. P. t`. ... ... 146
34-A. Re t Section 145, Evidence Act, and omissions and contradictions ... .. ... ... ... 156
35. Question of admissibility of Log Book of the Jeep involved in the crime under section 36. Effect of the Fvidence Act ... ... 158th. Effect of non-production of certain witnesses by the prosecution ... ... ... ... 161
37. Correct legal position regarding production of witnesses by the prosecution , .. ... ... ... 168
38. Application of these principles to the present case ... 169
39. Conclusions as to non-production of witnesses ... „. 171
40. Implications of camera proceedings …..171
41. Hearing of miscellaneous application in Chambers not open to objection ... ... ... ... 175
42. Conclusions as to justification for camera proceedings ... 179
43. Examination of evidence--Approver Masood Mahmood’s version ... ... ... ... ... 182
44. Approver Ghulam Hussain’s testimony ... ... 184
45. Test for appreciating evidence of an approver/accomplice ... 190
46. Who is an accomplice? ... ... ... 191
47. Principles governing the appraisal of approver’s evidence ... 194
48. The principle of double test .,. ... ... 194
49. Appraisal of Masood Mahmood’s evidence ... 197
50. Criticism of Masood Mahmood and his evidence ... ... 199
51. Special position enjoyed by Masood Mahmood under Z. A. Bhutoo .
51-A. Section of intrinsic worth of Masood Mahmood’s evidence ... 202
52. Alleged falsehoods uttered by Masood Mahmood ,.. 204
53. Alleged omissions and contradictions in Masood Mahmood’s evidence.......... ___ 209
54. Conclusions as to Masood Mahmood’s evidence …... 215
55. Evidence in corroboration of Masood Mohmood ... 2:5
56. Relevance of motive in conspiracy cases , .„ .,e 216
57 Factual position regarding motives-The F. I. R. ... 217
58. Oral evidence of Kasuri ... ... 217
59. The incident of 3rd June, 1974 .. , .. , 218
60. Documentary evidence of Mr. Kasuri’s criticism of Bhutto 218
61. Conclusion as to hostility between Kasuri and Bhutto ... 222
62. Corroborative evidence as to motive ... ... 223
63. Evidentiary value of secret intelligence reports ... 224
64. Defence suggestions as to other possible motives ... 224
65. Was Kasuri a political non-entity ... ... 228
66. Motive proved , ... ... 229
67. Corroboration of Masud Masood by Saeed Ahmad Khan,Chief Security Officer to the former Prime Minister 229
68. Credibility of Saeed Ahmad Khan ... ... 231
69. Conclusions as to Saeed Ahmad Khan’s corroboration of Masood Mahmood ... ... ... 233
70. Corroboration regarding Quetta visit of Bhutto and Masood Mahmood in July 1974 ... ... ... 233
71. Masood Mahmood’s instructions to Director M. R. Welch to take care of Kasuri at Quetta ... ... 234
72. Documentary evidence in support of M. R. Welch-Intelligence Report ... ... ... 235
73. Defence criticism of Welch ... ... 237
73-A. Conclosions as to evidence of M. R. Welch ... ... 240
74. The
75. The present incident at
76. The identity of crime empties
recovered in
77. Question of admissibility of the reports of the Fire-arms Expert ... ... ... 243
78. Corroboration by subsequent conduct of Z. A. Bhutto ... 248
79. Legal position regarding subsequent conduct ... 248
80. Evidence as to subsequent conduct . ... ... 249
81. Interference with the investigation of the case ... 251
82. Conclusions as to interference with the investigation ... 257
83. Defence criticism of Saeed Ahmad Khan and Abdul Hamid Bajwa ... ... ... ... 258
84. Nature and effect of interference with the investigation 260
85. Surveillance of Kasuri after the murder of his father 261
85-A. Conclusions as to Kasuri’s Surveillance ... ... 263
85-B. Efforts to bring back Kasuri to P. P. P. ... r 264
86. Cral Statement of Kasuri on this sub; ect ... 264
87. Evidence of Saced Ahmad Khan on the same subject 264
88. Documentary evidence regarding wining over of Kasuri 265
88-A. Conclusions as to efforts at wining over of Kasuri 272
89. Defence criticism of Ahmad Raza Kasuri and his evidence 273
90. Alleged omissions and contradictions in the evidence of Saeed Ahmad Khan : ... ... 274
91. Whether Saeed Ahmad Khan is an accomplice? 277
92. Conclusion as to Saeed Ahmad Khan ... 279
93. Cumulative effect of testimony of Masood Mabmood and corroborative evidence so far discussed ..279
94. Appraisal of Approver Ghulam Hussain’s evidence 279
95. Details of Islamabad incident corroborate Ghulam Hussain 2_82
96. Details of the present occurrence support Ghulam Hussain ... ... ... ... 284
97. Defence criticism of Ghulam Hussain’s evidence ... 285
98. Alleged omissions and improvements in Ghulam Hussain’s evidence ... ... ... ... 293
99. Alleged falsehood of Ghulam Hussain ... 300
100. Conclusions as to Ghulam Hussain’s evidence ... 318
101. Additional corroboration of Chulam Hussain ... 318
102. Effect of negative report of
Ballistics Expert regarding guns of 3rd Battalion of F. S. F., Walton,
103. Theories of substitution of crime empties ... 320
104. Ghulam Hussain’s evidence worthy of acceptance ... 323
105. Conspiracy defined ... ... ... 324
106. Nature of conspiratorial agreement ... ... 328
107. Mode of proof of conspiracy, ... 331
108. Conspiracy established ... ... ... 335
109. Application of sections l I l and 301 of the Pakistan Penal
Code ... ... ... ... 339
110. Killing of Kasuri’s father was probable consequence of conspiracy ... ... ... ... 347
111. Section 301, P. P. C. not applicable to certain appellants 350
112. Non-framing of charge under section 111, P. P. C. not material ... ... ... ... 351
113. Section 227 of the Criminal Procedure Code not applicable ... ... ... ... 357
114. Conclusions as to applicability of sections 111 and 301,
P. P. C. ... ... ... ... 358
115. Allegations of Bias against the trial Bench ... .. r 359
116. Conclusions as to first part of Defence submissions on Bias of the trial Bench ... ... ... 380
116-A. Final Conclusions as to bias ... ... 387
117. Regarding letter of Investigating Officer Abdul Khaliq dated 18th February 1978, to his departmental superior recommending a brother of appellant Iftikhar Ahmad for employment ... ... ... ... 387
118. Summary of conclusions ... ... ... 389
119. The confessing accused and the two approvers could not have prevented such a probe ... ... ... 394
120. Convictions upheld ... ... ... 394
121. Question of sentence ... ... ... 395
122. Expunction of certain paragraphs from the High Court judgment ... ... ... ... 395
123. Case of appellant Mian Muhammad Abbas ... 396
124. Cases of appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad ... ... ... 399
125. Immunity available under section 22 of the Federal Security Force Act, 1973 ... ... ... 400
126. Re: Section 12 of the Federal Security Force Act ... 401
127. Re: Application of section 76 of the Pakistan Penal Code ... 401
128. Re: Application of section 94, P. P. C. ... 402
129. All three appeals dismissed ... ... 404
130. Appreciation of assistance rendered by counsel .. 404
ORDER
STATEMENT OF THE CASE
ANWARUL HAQ, C. J.---This judgment will dispose of Criminal Appeals bearing Nos. 11, 12 and 13 of 1978, all of which are directed against the judgment of a Full Bench, comprising five Judges, of the Lahore High Court, dated the 18th of March 1978, in Criminal Original No. 60 of 1977.
They were heard by the Full Court
of nine Judges up to the 30th of July 1978, on which date our learned brother
Qaisar Khan, J., retired from the Court on attaining the age of superannuation.
Thereafter the bearing was continued before the remaining eight Judges until
the 20th of November 1978, when unfortunately one of the members of the, Bench,
viz. Waheeduddin Ahmad, J., was taken ill, having suffered a Cerebro-Vascular stroke, resulting
in impairment of his eye-sight,
speech and general physical activity. I After an adjournment of three weeks to
await his recovery, we decided to proceed without him, as prospects of his
joining the Bench within a foreseeable future were described as uncertain by
eminent physicians of Karachi, Lahore and Rawalpindi. Our learned brother was
shifted to
2. The five appellants were tried by the High Court, on its original side, for conspiracy to assassinate Ahmad Raza Kasuri, a member of the National Assembly of Pakistan at the relevant time, and in pursuance thereof making a murderous assault on him by firing on his car on the night between the 10th and 11th of November 1974, and as a result causing the death of his father Nawab Muhammad Ahmad Khan. All of them have been convicted under section 120-B read with section 115 of the Pakistan Penal Code, and each of them has been sentenced to undergo rigorous imprisonment for five years. Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa have been further convicted under section 307 mad with section 109 of the Pakistan Penal Code, and sentenced to undergo rigorous imprisonment for seven years in each case; whereas the remaining two appellants have been convicted in this behalf under section 307 read with section 34 of the Pakistan Penal Code and awarded a similar sentence. Finally, appellants Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa have been convicted under section 302 read with sections 301, 109 and 111 of the Pakistan Penn’ Code, and each of them bas been sentenced to death, and a similar penalty has been awarded to the remaining two appellants under section 302 read with sections 301 and 34 of the Pakistan Penal Code. Appellant Zulfiqar Ali Bhtitto has also been directed to pay compensation to the heirs of the deceased in the sum of Rs. 25,000 under section 544-A of the Criminal Procedure Code, or in &fault to undergo rigorous imprisonments for a period of six months. The sentences of imprisonment have been ordered to run concurrently, and shall take effect in case the sentence of death is not carried out.
3. On the date of the incident Zulfiqar Ali Bhutto was holding the office of the Prime Minister of Pakistan, which office he had held from August 1973, and continued to hold until the 5th of July 1977, when the country was brought under Martial Law. The other appellants were members of the Federal Security Force, Mian Muhammad Abbas being Director, Operations and Intelligence; Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad being employed in that force as Inspector, Sub-Inspector and Assistant Sub-Inspector respectively. The Director-General of the Federal Security Force, namely, Masood Mahmood, and one other Inspector, named Ghulam Hussain were also included in the list of accused persons, but were later granted pardon and gave evidence at the trial as approvers.
4. The incident took place at
about 0.30 a.m. on the night between the 10th and 11th of November 1974, near
Shadman-Shah Jamal
Roundabout in Lahore, when Ahmad Raza Kasuri (P. W. 1), was returning to his
house in Model Town after attending the wedding of one Bashir Hussain Shah in
Shadman Colony. He was driving his car bearing No. L E J 9495, and his father
Nawab Muhammad Ahmad Khan deceased was sitting next to him, whereas his mother
and her sister were occupying the rear seat of the car. As he negotiated the
roundabout in question, less than a hundred yards from the wedding place, his
car was fired upon with automatic weapons. The headlights of the car as well as
other parts of its body were hit, and so was his father. The lights of the car
went off, but Ahmad Raza Kasuri managed to drive on so .as to take his injured
father to the
5. On hearing of the incident,
the Deputy Commissioner of Lahore, as well as the Senior Superintendent of
Police, Muhammad Asgbar Khan (P. W. 12) and Deputy Inspector-General of Police, Sardar
Muhammad Abdul Wakil Khan (P. W. 14) arrived at the hospital. At their
suggestion a statement in writing (Exh. P. W. 1/2) was given by Ahmad Raza
Kasuri at 3-20 a.m.
and on its basis a formal First Information Report was recorded at Police
Station Ichhra by S. H. O. Abdul Hayee Niazi (P. W. 34). In this report the
complainant referred to an earlier murderous attack made on him on the 17th of
January 1972, at Kasur, and another attack launched on him on the 24th of
August 1974, at
6. The autopsy of the dead body of deceased Muhammad Ahmad Khan, as conducted by Dr. Sabir Ali (P. W. 7), Deputy Surgeon, Medico-Legal, Lahore, revealed that the deceased had received bullet injuries on the top right side and back of the left side of the head, resulting in fracture of the parietal bone as well as of the base of the skull. Two thin metallic pieces from the margins of the wound and one bullet from the right cerebral hemisphere in the middle were recovered, and handed over to the Investigating Officer Abdul Hayee Niazi after being sealed in a tube.
7. On inspecting the spot, S. H. O. Abdul Hayee Niazi, collected 24 empty cartridges from the ground, and also a lead piece of a bullet from one of the adjacent bungalows. He noticed bullet marks on the walls of these houses and found that one bullet bad pierced through the door and also four books lying on a shelf in one of the rooms of this house. He prepared a site plan (Exh. P. W. 34/2), showing, inter alia, the four places, two in the roundabout, and two on the metalled portion of the road, from where he had collected the empty cartridges. He also indicated on the plan the estimated width of the Roundabout and the metalled road as well as distances between the various points shown on the plan. Subsequently he had another plan of the spot prepared by the draftsman Inam Ali Shah which was brought on the record as Exh. P. W. 34/5-D, and shows a somewhat different picture from that appearing in the first site plan as regards distances between various points.
8. The Investigating Officer first showed the 24 crime empties to Nadir Hussain Abidi (P. W. 36) then Director of the Forensic Science Laboratory, Lahore, so as to ascertain the type of weapon from which they had been fired. Later, on the 23rd of November 1974, he despatched them to the Inspectorate of Armaments, General Headquarters, Rawalpindi, for an expert opinion as to their calibre, etc. and was informed, vide Exh. P. W. 32/1, that the crime empties were of 7.62 mm calibre, of Chinese Make and could be fired from rifle, L. M. G. and S. M. G.
9. In the initial stages the investigation was supervised by Deputy Superintendent of Police, Abdul Ahad, who is said to have died in 1975. As apparently, the investigation was not making much headway, the case was then entrusted to Malik Muhammad Waris (P. W. 15) of the Special Branch. The Punjab Government also appointed a Special Tribunal, comprising Mr. Justice Shafi-ur-Rehman of the Lahore High Court, to inquire into the incident. The Tribunal submitted its report to the Provincial Government on the 26th of February 1975, giving certain guidelines for the further investigation of the case. It appears that the report was not published. In October 1975, the case was filed as untraced .by D. S. P. Muhammad Waris after obtaining instructions from the Provincial Government through the Inspector-General of Police.
10. However, the case was re-opened after the promulgation of Martial Law on the 5th of July 1977. The Central Government had directed the Federal Investigation Agency to inquire into the working of the Federal Security Force and its officers, particularly into allegations relating to various political murders and kidnappings, as well as dispersing of political meetings and processions by the Federal Security Force. While investigating one such incident relating to the alleged bomb-blast in the premises of the Lahore Railway Station on the visit of Air Marshal (Rtd.) Asghar Khan in March 1975, Abdul Khaliq (P. W. 41), Deputy Director of the Federal Investigation Agency, came to suspect that the Federal Security Force might be involved in the murder of Nawab Muhammad Ahmad Khan. Appellants Arshad Iqbal and Rana Iftikhar Ahmad were interrogated in this behalf on the 24th and 25th of July 1977, and arrested in this case. They confessed their participation in the incident and their statements were recorded on the 26th of July 1977, under section 164 of the Criminal Procedure Code by Magistrate Zulfiqar Ali Toor (P. W: 10). Appellants Ghulam Mustafa and Mian Muhammad Abbas as well as approvers Masood Mahmood and Ghulam Hussain were also later arrested. All of them made confessional statements under section 164 of the Criminal Procedure Code, eventually leading to the arrest of the former Prime Minister.
11. An incomplete Chelan was
submitted before a Magistrate at
12. According to the evidence adduced at the trial, the case for the prosecution is that Ahmad Raza Kasuri was one of the founder members of the Pakistan People’s Party (commonly known as the P. P. P.), which was founded on 1-12-1967, and of which Zulfiqar Ali Bhutto was the Chairman. Kasuri was elected as a Member of the National Assembly in the 1970 general elections on the ticket of that party from Kasur Constituency No. N. A. 63. As he was a persistent critic of the actions, conduct and policies of Zulfiqar Ali Bhutto, his relations with the latter, who was not only the Party Leader and Chairman, but had at various stages had the offices of the Chief Martial Law Administrator, the President of Pakistan, and later the Prime Minister of Pakistan, became seriously strained, with the result that Zulfiqar Ali Bhutto developed a personal hatred against him. On the 17th January 1972, a murderous attack was made on the life of the complainant at Kasur and a criminal case was registered in that behalf. In the year 1973, Kasuri left the P. P. P. and joined another political party, namely, Tehrik-e-Istaqlal, whereafter his criticism of Zulfiqar Ali Bhutto became more severe and violent. On the 3rd of June 1974, a particularly unpleasant incident took place between Kasuri and Zulfiqar Ali Bhutto in the National Assembly, during the course of which the former Prime Minister told Kasuri to keep quiet, adding
“I have had enough of you; absolute poison. I will not tolerate your nuisance.”
13. It is alleged by the prosecution that it was at about this time that Zulfiqar Ali Bhutto entered into a conspiracy with approver Masood Mahmood (P. W. 2), who was then the Director-General of the Federal Security Force, to get the complainant eliminated through the agency of the Federal Security Force. Masood Mahmood brought in appellant Mian Muhammad Abbas, who was his Director of Operations and Intelligence, and Mian Muhammad Abbas in turn directed approver Ghulam Hussain (P. W. 31) to organise the murder of Ahmad Raza Kasuri. Mian Muhammad Abbas arranged the supply of arms and ammunition from the Armoury of the Federal Security Force for the execution of this design, and directed appellant Ghulam Mustafa to render all assistance to approver Ghulam Hussain. He also deputed Arshad Iqbal and Rana Iftikhar Ahmad to assist the approver, and it was in pursuance of these arrangements and directions that the attack was ultimately launched on the car of Ahmad Raza Kasuri on the night between the 10th and 11th of November 1974. According to the prosecution, the actual firing was done by appellants Rana Iftikhar Abmad and Arshad Iqbal, who were armed with step-guns supplied to them by appellant Ghulam Mustafa, whereas approver Ghulam Hussain remained present near the spot to ensure that these appellants carried out the mission assigned to them.
14. It is also alleged by the
prosecution that prior to the incident resulting in the death of Kasuri’s
father, approver Ghulam Hussain assisted by some other members of the Federal
Security Force, had attacked Ahmad Raza Kasuri on the 24th of August 1974, when
the latter was driving his car on the
15. The prosecution produced 41 witnesses, besides a large number of documents, to prove the following (i) Strained relations and enmity between Zulfiqar Ali Bhutto and Ahmad Raza Kasuri resulting in the threat extended on the floor of the Parliament on the 3rd of June 1974, by Zulfiqar Ali Bhutto ;
(ii) The conspiracy to murder Ahmad Raza Kasuri between Zulfiqar Ali Bhutto and Masood Mahmood (P. W. 2), and joining of the other appellants as well as Ghulam Hussain approver (P. W.-31) in that conspiracy;
(iii) Attack on Ahmad Raza Kasuri firstly at Islamabad in August 1974, and later at Lahore on the 10/1Ith November 1974, the last occurrence culminating in the death of K^suri’s father ;
(iv) The steps taken by Zulfiqar Ali Bhutto and his subordinates, particularly Saeed Ahmad Khan (P. W. 3) and his Deputy the late Abdul Hameed Bajwa, to channelise the investigation in a manner so as to exclude the possibility of detection of the actual culprits; and interference in the investigation of the case by officers of the Central, Government ; and
(v) Preparation of incorrect record of the investigation in 1974-75 by the Police under the direction of the aforesaid officers of the Central Government with the object of shielding the then Prime Minister.
16. All the five appellants pleaded not guilty at the trial. Zulfiqar Ali Bhutto expressed lack of confidence in the Bench on the ground that the presiding Judge, namely, the learned Acting Chief Justice of the High Court, was biased against him as he had been supersesed by his Government in the matter of promotion to the office of Chief Justice of the Lahore High Court in October 1976; and also because the P. P. P. Executive Committee, presided over by the appellant, had criticised certain statements made by the same Judge in his capacity as the Chief Election Commissioner seeking to cast aspersions on the conduct of the P. P. P. Government in the March 1977 Elections. He unsuccessfully made various applications in the High Court as well as in the Supreme Court, and to the Governor of the Punjab, for the transfer of the case to another Bench or Court; and ultimately he cancelled the powers of attorney of all his counsel on the 9th of January 1978, and boycotted the proceedings of the trial from the 10th of January 1978, onwards. He also protested against the holding of part of the proceedings in camera, and refused to answer questions put to him under section 342 of the Criminal Procedure Code, stating that he would not be offering any defence since he had boycotted the proceedings of the trial, and that he would confine his statement mainly to two issues
(a) The reason for his lack of confidence in the fairness of the trial ; and
(b) The reason why this case had been fabricated against him.
However, he did answer some of the questions, denying the prosecution allegations against him. He did not produce any evidence in defence.
17. Appellant Mian Muhammad Abbas retracted his confession before the opening of the trial, asserting that his statement under section 164, Criminal Procedure Code was obtained under duress as well as promises. He stated that he did not have good relations with his Director-General Masood Mahmood; that be had no knowledge whatsoever of the conspiracy in question and never gave any directions to approver Ghulam Hussain or to other officials of the Federal Security Force for the supply of arms and ammunition. He filed a written statement in the High Court mentioning certain facts and events to show that Masood Mahmood was annoyed with him, and similarly Amir Eadshah (P. W. 20) was also inimical towards him. He admitted certain correspondence with M. R. Welch (P. W. 4), who was at the relevant time stationed at Quetta as Director, Federal Security Force, but explained that this correspondence was exchanged in routine. He summoned certain defence witnesses mainly to show that he had tendered his resignation twice as he did not want to be a party to the alleged illegal activities of the Federal Security Force.
18. It may be stated here that during the hearing of the appeal Mian Muhammad Abbas has filed a written statement admitting the prosecution allegations against him, but pleading that he acted under duress, inasmuch as pressure was brought to bear upon him by Director-General Masood Mahmood to carry out the mission for the elimination of Ahmad Raza Kasuri.
19. The remaining three appellants, namely, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad stuck to the confessional statements initially made by them under section 164 of the Criminal Procedure Code, and acknowledged the role attributed to them by the pr8secution. They, however pleaded that they had no option in the matter as they were bound by the oath administered to them on joining service in the Federal Security Force, and they were being pressurised and threatened by their superiors, particularly approver Ghulam Hussain and appellant Mian Muhammad Abbas. They also filed written statements in support of their pleas. They summoned one defence witness to show that there was no question of bad blood between Director-General Masood Mahmood and appellant Mian Muhammad Abbas as the Director-General had given good reports to Mian Muhammad Abbas and had also sponsored the case for his promotion to the rank of Director.
FINDINGS OF THE HIGH COURT
20. After reviewing the entire evidence at length, the High Court has held that the prosecution has succeeded in proving that Zulfiqar Ali Bhutto had strained relations with Ahmad Raza Kasuri, thus constituting a motive to get him eliminated ; that this appellant had entered into a conspiracy with Masood Mabmood (P. W. 2), in which plan the other accused also joined at different levels to execute the mission along with Ghulam Hussain approver ; that the attack on Ahmad Raza Kasuri in Islamabad was a part of the same operation ; that the attack launched on Kasuri’s car in Lahore, during the course of which his father was killed, was also in furtherance of the same conspiracy ; and that the initial investigation in the case was not honest, and efforts had been made at various levels to divert its course for the purpose of screening the real offenders. The High Court has expressed the view that sufficient evidence, circumstantial and documentary, has been brought on the record to provide corroboration necessary for the purpose of placing reliance on the statements of the two approvers Masood Mahmood and Ghulam Hussain. It has also taken note of the fact that the appellants Arshad Iqbal, Ghulam Mustafa and Rana Iftikhar Ahmad had stuck to their confessions throughout the course of the trial. Finally, the High Court has observed that there were no extenuating circumstances in favour) of the appellants, as Zulfiqar Ali Bhutto was the Prime Minister of the country and it was his duty to protect the life and liberty of the citizens of Pakistan, and not to use the Federal Security Force for eliminating his political opponents ; that the other appellants were under no obligation to obey the unlawful commands of their superiors, and such a plea could not afford a valid defence in law.
SUBMISSIONS ON BEHALF OF ZULFIQAR ALI BHUTTO
21. During the course of elaborate and exhaustive arguments, spread over a period of nearly two months, Mr. Yahya Bakhtiar, the learned counsel -for appellant Zulflqar Ali Bhutto has assailed the judgment of the High Court on three main grounds, namely :---
(a) It is a false, fabricated and politically motivated case, being the result of an international conspiracy aimed at eliminating the appellant both politically and physically ;
(b) That the trial stands vitiated for the reason that the presiding Judge of the Bench, namely, Mr. Justice Mushtaq Hussain was biased against the appellant, and the trial was not conducted fairly inasmuch as evidence was not recorded faithfully in accordance with the depositions of the witnesses, objections raised by the defence counsel as to the admissibility of evidence were frequently not recorded, and were often illegally overruled ; and that as a result of the cumulative effect of such prejudicial orders the appellant was compelled to boycott the trial from the 10th of January, 1978, onwards as a measure of protest ; and
(c) That on merits, the prosecution had failed to prove its case beyond reasonable doubt; that inadmissible evidence had been allowed to be brought on the record and taken into consideration against the appellant in violation of the relevant provisions of law; and that admissible and relevant evidence had been illegally shut out to the prejudice of the appellant ; that the prosecution witnesses, particularly the two approvers Masood Mahmood and Ghulam Hussain were not worthy of credit ; and that the necessary corroboration, as required by law, was not available on the record.
Mr. Yahya Bakhtiar submitted that on these grounds the appellant was entitled to acquittal, or at least it was a case where a re-trial should be ordered by an impartial Bench or Court.
THREE. APPLICATIONS BY Z. A. BHUTTO
22. On the 8th of July, 1978, the learned defence counsel presented three miscellaneous applications, which have been numbered as Criminal Miscellaneous 7, 8 and 9 of 1978, for facility of reference. In the first application the prayer is for resummoning M. R. Welch (P. W. 4) so that he .could be questioned in respect of his religion and some other waters which could not be taken up in cross-examination owing to the appellant’s absence from the Court on the day Welch was examined. The second application contains a request for summoning of D. S. P. Agha Muhammad Safdar and Col. Wazir Muhammad Khan of the Central Ordnance Depot, Kharian, as Court witnesses, so that the first named could prove the statement made by Ahmad Raza Kasuri (P. W. 1) under section 161 of the Criminal Procedure Code during the investigation of the Islamabad incident in August, 1974 ; anti the second witness could depose as to the source and marking of the ammunition supplied to various units of the Army and para-Military Forces like the Federal Security Force. The 3rd application contains a prayer for summoning 10 defence witnesses including the former Chief of the Army Staff General Tikka Khan, former Minister of State for Foreign Affairs, Mr. Aziz Ahmad, former Inspector-General of Police of the Punjab Province Rao Abdul Rashid, and certain other officials of the Press Information Department and of the C. M. L. A. Secretariat, for the reason that the appellant did not have an opportunity of adducing defence evidence owing to his having boycotted the trial.
BHUTTO’S PERSONAL APPEARANCE IN SUPREME COURT
23. An oral prayer was also made at the commencement of the hearing of the appeal, as well as at the close of arguments, that the appellant should be given an opportunity in this Court to make a full statement under section 342 - of the Criminal Procedure Code, as such an opportunity was denied to him in the trial Court.
24. A written application was also later submitted to the Court by the appellant himself requesting for an opportunity to personally address the Court on some aspects of the case. This request was allowed, and, accordingly, the appellant personally appeared before the Court for four days, from the 18th to the 21st of December, 1978.
25. During his elaborate address,
spreading over nearly 12 hours, appellant Zulfiqar Ali Bhutto denied the
prosecution allegations regarding his having any motive to have witness Ahmad
Raza Kasuri assassinated, and having entered into any conspiracy in this behalf
with witness Masood Mahmood, the then Director-General of the Federal Security Force. He also contended
that the evidence did not disclose the presence of an essential ingredient of
the offence of conspiracy, namely, agreement, on the part of the co-conspirators, particularly
Masood Mahmood, who had pleaded duress on the part of the appellant. The
appellant commented upon what he called the inherent contradictions in the
evidence of witnesses Ahmad Raza Kasuri and Masood Mahmood, and submitted that
they were acting under the compulsion of Martial Law prevailing in the country.
He stated that if the prosecution wanted the Court to take judicial notice of
the alleged social conditions prevailing in
26. He vehemently contended that )he entire case against him was false and fabricated, intended to eliminate him physically and politically, and that he was innocent. He bitterly complained that he had not been given a fair trial in the High Court, as its presiding Judge, Mr. Justice Mushtaq Hussain had a personal bias against him owing to his supersession for the office of Chief Justice of the Lahore High Court, and also because the Central Executive Committee of the Pakistan People’s Party, presided over by the appellant, had joined issue with him in respect of certain statements made by him in his capacity as Chief Election Commissioner in August, 1977.
27. He strongly criticised the observations made by the High Court in paragraphs 609 to 616 of its judgment, describing him as a Muslim only in name and not living up to the ideals of conduct prescribed for Muslim rulers lay Islam. He submitted that this criticism was entirely unjustified, and was clear evidence of the bias of the trial Court against him ; as, in fact, he had rendered greater service to Islam than any of the previous rulers of Pakistan, as he was instrumental in solving the age-old Qadiani problem, in convening the Islamic Summit at Lahore and being elected as its Chairman on a proposal made by no less a person than the late King Faisal of Saudi Arabia ; that be had organized’ Seerat Conferences in the country, had formulated a liberal Haj Policy, had declared Friday as a closed holiday instead of Sunday, had introduced prohibition in the country, had changed the name of the Pakistan Red Cross to Red Crescent ; and was primarily responsible for the unanimous adoption of the 1973 Constitution by the Parliament. He submitted that in the face of these achievements in the cause -of Islam, the High Court had no justification, nor was it competent, to pronounce upon the nature of his conduct as a Muslim. He also submitted that no head of the Government could be held responsible for individual crimes committed in the State during his tenure of office. He resented the insinuations and innuendoes contained in paragraphs 613 to 6 6 of the judgment ; which ostensibly spell out the Islamic injunctions regarding the conduct of Government by a Muslim ruler.
28. On all the four days of his appearance appellant Zulfiqar Ali Bhutto expressed his full confidence in this Court, and also his gratitude for having been given an opportunity of personally addressing the Court at length, even though his lawyers had already made full submissions on all aspects of the case.
PERSONAL. APPEARANCE OF OTHER APPELLANTS AND THEIR ADMISSIONS
29. The other four appellants, namely, Mian Muhammad Abbas, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad were also allowed, on their request, to be present in Court during the days of appellant Zulfiqar Ali Bhutto’s address. At the close of his address they sought permission to make oral submissions.
30. Mian Muhammad Abbas re-affirmed the written application he had earlier sent to this Court, acknowledging responsibility for his part in the crime. He, however, pleaded that he had acted under the orders and threats of his Director-General Masood Mahmood, and that he had tendered his resignation twice, but the same was not accepted. He regretted that under the orders of the former Prime Minister Zulfiqar Ali Bhutto and Director--General Masood Mahmood he was instrumental in the assassination of the late Nawab Muhammad Ahmad Khan, who was his personal friend. Finally, be asked for clemency in the matter of punishment.
31. The other three appellants also reiterated their confessions, and submitted that they had acted under the orders of their superiors, and requested for lenient treatment in the matter of sentence. Ghulam Mustafa narrated a fairly long list of political crimes allegedly committed by the Federal Security Force under the orders of the former Prime Minister, adding that Masood Mahmood or other members of the Federal Security Force had no personal interest in these matters. The other two appellants also asserted that they had no enmity with Ahmad Raza Kasuri or his late father Nawab Muhammad Ahmad Khan who was killed in the attack mounted by them on Ahmad Raza Kasuri’s car.
POLITICAL CONSIDERATIONS IRRELEVANT
32. Although in the grounds of appeal, as well as in the oral submissions made at the Bar, considerable emphasis has been laid on the point that the present case was politically motivated in the sense that there was an international conspiracy to remove the appellant from power, and to eliminate him both politically and physically, it is clear that these are matters extraneous to the record of the case and to its judicial determination. The fate of the present appeal must depend not on the motive of those who reopened the investigation of the case on the promulgation of Martial Law on the 5th of July, 1977, but on the strength or weakness of the evidence adduced in support of the allegations made by Ahmad Raza Kasuri in the First Information Report made by him as long ago as the 11th of November, 1974, minutes after his father bad breathed his last owing to injuries sustained during the attack on the complainant’s car. If the requisite evidence, satisfying the legal and judicial standards applicable in criminal trials of the present kind, is available on the record to prove the guilt of the appellant beyond reasonable doubt, then the duty of the Court is clear, irrespective of the political considerations which might have led to the overthrow of the appellant’s Government in July, 1977, and the reopening of the present case thereafter. The converse is equally true. If sufficient evidence is not available to sustain the convictions recorded against the appellant, then they must be set aside, regardless of any political considerations. On this view of the matter, we did not think it necessary to go into the details of the alleged international conspiracy alluded to by Mr. Yahya Bakhtiar.
DETAILED CONTENTIONS -ON MERITS ON BEHALF OF BHUTTO
33. Even though the learned counsel had mentioned the question of bias before commenting on the merits of the case, he agreed that it would be more appropriate if the merits were discussed first, leaving the question of bias to be considered later. I would, accordingly, proceed to outline the various contentions raised by Mr. Yahya Bakhtiar on the merits of the case.
34. Mr. Yahya Bakhtiar contended that;-----
(i) The trial stands vitiated by reason of serious prejudice having been caused to the appellant owing to the violation of the rule laid down by the Supreme Court in Nur Elahi v. The State and others P L D 1966 S C 708, namely, that the complaint case initiated by Ahmad Raza Kasuri should have been tried first before taking up the challan filed by the State ;
(ii) A considerable amount of evidence, and he gave details, had been admitted at the trial in violation of the provisions contained in sections 10, 30 and 32 of the Evidence Act, which must now be excluded from consideration ;
(iii) (a) The two approvers not having made a full and true disclosure of the whole of the circumstances within their knowledge, as required by section 337 of the Code of Criminal Procedure, they could not be regarded as approvers in the legal sense, and for that reason as well their evidence could not be brought within the ambit of section 10 of the Evidence Act; and
(b) All the confessions recorded in the case have been recorded in violation of the provisions of subsection (1-A) of section 164, Criminal Procedure Code as they were not recorded in the presence of the appellant, and the latter was not given an opportunity of crossexamining them, thus causing grave prejudice to the appellant;
(iv) The appellant is alleged to have originally conspired with the late Malik Haq Nawaz Tiwana, the first Director-General of the Federal Security Force, but there is no charge in this behalf, and, accordingly, the prosecution was precluded from leading evidence to prove any conspiracy;
(v) As the alleged conspiracy came to an end with this incident resulting in the death of Kasuri’s father, evidence as to the subsequent conduct of the appellant or of the co-conspirators, or of his subordinates was not only inadmissible but also irrelevant; that even otherwise these acts etc. were not of an incriminating nature and could not give rise to an inference about the existence of the alleged conspiracy;
(vi) Several important pieces of incriminating evidence, relied upon by the High Court, had not been put to the appellant under section 342 of the Criminal Procedure Code, with the result that they also had to be excluded from consideration by this Court ;
(vii) The provisions of section 540-A of the Criminal Procedure Code had not been properly complied with by the High Court before proceeding with the trial in the absence of the appellant from the 16th of November, 1977 to the 5th of December, 1977, and on the 14th of December, 1977, as well as the 17th of December, 1977, with the necessary consequence that the evidence of the witnesses examined on these dates could not be legally used against the appellant ;
(viii) Statements of several prosecution witnesses, namely, Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31), and Abdul Hayee Niazi (P. W. 34), recorded under section 161 of the Criminal Procedure Code during the investigation of the case were not supplied to the defence as required by section 265-C of the Criminal Procedure Code, thus depriving the defence of its valuable right to cross-examine the witnesses in the light of their previous statements, which would amount to an illegality requiring that the entire evidence of these witnesses be excluded from consideration ;
(ix) The High Court failed to apply the correct legal procedure in the matter of permitting the defence to cross-examine important prosecution witnesses as to significant omissions from their previous statements, as it erroneously took the view that omissions, or lapses of memory, did not amount to contradictions within the meaning of section 145 of the Evidence Act, thus causing grave prejudice to the appellant by denying him the opportunity to show that the witnesses were not reliable ;
(x) The defence was illegally precluded from proving the log book of the jeep driven by Muhammad Amir (P. W. 19), although the matter was fully covered by section 35 of the Evidence Act read with illustration (e) to section 114 thereof, with the result that the defence was prejudiced in the matter of showing that the story of approver Ghulam Hussain regarding the deployment of this jeep on the day of the attack stood contradicted by documentary evidence;
(xi) The defence was seriously prejudiced by the failure of the prosecution to examine certain material witnesses like the then Chief Minister of the Punjab Mr. Hanif Ramay, the two witnesses of the recovery memorandum of the crime empties from the spot, the then InspectorGeneral pf Police of the Punjab Province Rao Abdul Rashid and others whose list was supplied), and it is necessary that all this additional evidence should be called in the appellate Court or an adverse inference should be drawn against the prosecution;
(xii) If full effect is given to the foregoing contentions, then no evidence whatsoever is left on the record for sustaining the convictions recorded by the High Court I but even otherwise the evidence of the important witnesses relied upon by the prosecution, like Ahmad Raza Kasuri (P. W. 1), Masood Mahmood (P. W. 2), $aeed Ahmad Khan (P. W. 3), M. R. Welch (P. W. 4) and Ghulam Hussain (P. W. 31), is full of contradictions, improvements, lies and improbabilities, so much so that even the manner in which Kasuri’s car was fired upon cannot be satisfactorily determined, nor can any conclusion be safely drawn as to the nature of the conspiracy and the persons responsible for its execution, especially the presence of approver Ghulam Hussain in Lahore on that day ;
(xiii) The two approvers as well as Saeed Ahmad Khan, who are the mainstay of the prosecution, being men of doubtful character and antecedents, and their evidence being inherently unreliable and full of contradictions, the question of finding any corroboration does not arise ; and that in any event their evidence can be accepted only if it is corroborated by independent evidence, and as in the instant case the corroboratory evidence is that of accomplices, or persons who are no better than accomplices, it is not sufficient to sustain the conviction of the appellant;
(xiv) The appellant had no motive to do away with Ahmad Raza Kasuri, as the latter was a political non-entity and any criticism by him of the r policies of the appellant could have no impact, the moreso, as the appellant had other far more important and violent critics such as Khan Abdul Wali Khan; that Kasuri himself had mentioned other nemies; and that in any case, motive could not provide corroboration on a charge of conspiracy;
(xv) The High Court has erroneously relied on unproved secure reports and has misread the other documents in coming to the conclusion that the appellant had tried to win back Ahmad Raza Kasuri to the fold of the P. P. P., thus showing his guilty mind;
(xvi) The prosecution has failed to prove by positive evidence that the crime empties recovered from the spot had been fired from any of the 25 guns belonging to the Third Battalion of the Federal Security Force, then stationed at Walton ; and the various theories of substitution of the crime empties by the police officers originally handling the case in 1974-75 were completely untenable and in the nature of an afterthought introduced only when the report of the Ballistics Expert was found to be negative ; which report is fatal to the evidence of the approver Ghulam Hussain and of the other witnesses who claim to have supplied S. M. Gs. and ammunition to Ghulam Hussain for the purpose of carrying out attacks on Ahmad Raza Kasuri;
(xvii) No weight could be attached to the confessional statements of the co-accused, nor to the evidence of the approvers and witnesses like Saeed Ahmad Khan and M. R. Welch or the police officers of the Lahore District, as they were all acting under the fear of Martial Law, having been pressurised to give false evidence to save their own skins ; or due to promises and inducements ;
(xviii) Apart from showing the bias of the Court, camera proceedings of the trial held in violation of the provisions of section 352 of the Criminal Procedure Code and the established principles of holding criminal trials in the open, have vitiated the whole trial, thereby entitling the appellant to acquittal ;
(xix) In any case, even if the facts alleged by the prosecution are taken as having been proved, an essential ingredient of the offence of conspiracy, viz. agreement among the conspirators, would be found wanting, as all the officers of the Federal Security Force, from the Director-General down to the A. S. I., were acting under duress and only carrying out orders of their superiors ; and
(xx) Finally, section 111 of the Pakistan Penal Code is not attracted to the facts of this case, as the death of Na web Muhammad Ahmad Khan could not be regarded as the probable consequence of the alleged conspiracy between the appellant and Masood Mahmood, and accordingly criminal liability for the same must rest exclusively on those who actually caused it. In any case the appellant was not charged under this section.
SUBMISSIONS ON BEHALF OF MIAN ABBAS
35. On behalf of appellant Mian Muhammad Abbas it was submitted by Mr. Qurban Sadiq Ikram that although the appellant does not contest the case on facts and admits the various allegations made by the prosecution, yet his case is fully covered by section 94 of the Pakistan Penal Code for the reason that he was under constant threat from his Director-General Masood Mahmood, and his failure to comply would have entailed serious consequences for him and for his family. He next submits that, in any case, this appellant having no motive of his own to do away with Ahmad Raza Kasuri, be acted under duress and compulsion of circumstances which entitle him to mitigation in the sentence awarded by the High Court.
SUBMISSIONS ON BEHALF OF REMAINING 3 APPELLANTS
36. Mr. Irshad Qureshi, appearing for appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad has stated that his clients had made a clean breast of the whole affair and had admitted the prosecution allegations regarding the part played by them in the whole incident, but it was clear that they had also acted under duress and compulsion of circumstances, and the obligation of their oath as employees of the Federal Security Force. He contended that they were, therefore, protected under sections 76 and 94 of the Pakistan Penal Code as well as section 21 of the Federal Security Force Act, 1973. Lastly, he submitted that, in any case, all these factors were clearly in the nature of mitigating circumstances in the matter of sentence awarded to them under section 302 of the Pakistan Penal Code read with sections 301 and 34 thereof.
Bhutto’s Applications Dismissed
37. Before dealing with the several contentions raised by Mr. Yahya Bakhtiar on the merits of the case, I would like to dispose of the three applications made by him for recalling certain prosecution witnesses for further cross-examination summoning certain persons as Court witnesses, and others as defence witnesses. On the last day of the hearing of these appeals, viz. 23-12-1978, we announced a short order to the effect that, for reasons to be recorded in the judgment, we were of .the view that no justification had been made out for granting any of these requests. I now proceed to record reasons for this view.
(1) Criminal Miscellaneous No. 7 of 1978
38. It has been alleged in this application that 15 witnesses of the prosecution were examined and cross-examined in the High Court when the appellant, owing to his illness, was not present in the Court, and the various requests made on his behalf for the adjournment of the proceedings were not only rejected, but the High Court imposed on him illegally and arbitrarily exemption from appearance in the purported exercise of power under section 540-A of the Criminal Procedure Code. It is maintained that the evidence of the said witnesses is, therefore, inadmissible against the appellant as also that the same has caused him great prejudice.
39. Upon these allegations, the prayer made in the application is that while the appellant reserves his right to make an application to recall the said witnesses at a proper time, for the present Mr. M. R. Welch (P. W. 4) may be recalled for cross-examination, as being Catholic Christian by faith his evidence was recorded in the High Court on solemn affirmation instead of having been sworn on the Bible.
40. Mr. M. A. Rehman, the learned A. O. R. for the State, has filed written objections and opposed the grant of the said application. The main reasons advanced by him in that behalf are that in line with the settled practice pursued in the High Court, the prosecution had informed the defence in advance that Mr. M. R. Welch was to be produced in evidence on 16-11-1977; that he was accordingly produced, examined and cross-examined by Mr. Ehsan Qadir Shah, the learned counsel for Mr. Bhutto ; that neither on the said date nor at any other day was any grievance made by or on behalf of the appellant that the witness should have been examined in his presence, or that being a Christian by faith ought to have been sworn on the Bible ; that Mr. Welch, when he was about to be administered the oath as a witness in the High Court, stated from the dock within the sight and hearing of all, including the learned counsel of the appellant, that he had embraced Islam, and consequently he was sworn on solemn affirmation ; and that under section 13 of the Oaths Act, 1873 (Act X of 1873) no objection can now be taken to his evidence, even if he was actually Christian by faith.
41. Now, by going through the
contents of the said application, as well as the reply made thereto on behalf
of the State, I am satisfied that the application has no merit in it. It is
true that the appellant remained absent from the Court from 13-11-77 to 30-11-77 when 15 witnesses were
examined and cross-examined
in his absence. But even so he does not seem to have been prejudiced. It is a
matter of record that all the said witnesses were cross-examined at length by
the learned counsel for the appellant ; that the appellant used to meet with
his counsel practically every day in jail, and therefore,, it has to be
presumed that the cross-examination
of the said witnesses was made in accordance with his instructions, or at any
rate his approval. Not only this, but no objection seems to have been taken by
his learned counsel as to the faith of Mr. Welch when he declared in the open
Court that he had converted to Islam, nor indeed was any question put to him in
that behalf during his cross-examination.
It is of some interest to note here that Mr. Yahya Bakhtiar, who hails from
42. Even otherwise, no objection can now be taken to his evidence in view of section 13 of the Oaths Act, 1873 (Act X of 1873), which runs as under:-----
“No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever, in the form in which any one of them is administered shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”
This application is, therefore, dismissed.
(2) Miscellaneous Application No. 8 of 1978
43. The prayer made in this application is that Mr. Agha Muhammad Safdar, the former Deputy Superintendent of Police, Islamabad and Col. Wazir Ahmad Khan, Central Armament Depot, Havelian, may be summoned as witnesses for the following reasons :-
That Agha Muhammad Safdar and Nasir Nawaz (P. W. 23) had jointly investigated the case in respect of the Islamabad occurrence in which the car of Mr. Ahmad Raza Kasuri was fired upon ineffectively ; that in respect of the said occurrence Agha Muhammad Safdar had recorded the statement of Mr. Ahmad Raza Kasuri under section 161, Cr. P. C. ; that a copy of the said statement had been supplied to the defence by the learned counsel for the prosecution ; that during the cross-examination of Nasir Nawaz (P. W. 23) the said copy was put to the witness as he was conversant with the handwriting and signature of Agha Muhammad Safdar, but the High Court did not permit the learned counsel for the appellant to do so ; that when the appellant, at a subsequent stage in the High Court, boycotted the proceedings an application was made by Mr. Qurban Sadiq Ikram the learned counsel for Mian Muhammad Abbas, for summoning Agha Muhammad Safdar as a witness, but the same was rejected ; and that it would be in the interest of justice that Agha Muhammad Safdar be summoned as a Court-witness.
44. As to Col. Wazir Ahmad Khan, it is said that he is the author of Ammunition Vouchers, namely, Exhs. P. W. 38/ 1, P. W. 38/2, P. W. 38 3 and P. W. 39/2 and hence an essential witness ; that in the High Court the prosecution had applied for permission to produce him as a witness, to which no objection was taken by the defence, but he was not summoned for reasons recorded in the judgment of the High Court. The prayer made in the application is that his evidence being essential, he should be summoned as a Court-witness in the interest of justice.
45. Mr. M. A. Rehman, the learned A. O. R. for the State, has filed written objections against this application also. The stand taken by him is that both the said witnesses were not only known to the appellant, but were available and could be produced in Court ; that in any event they could be summoned as witnesses for the defence, as some of the appellants had indeed done so in their defence ; and that the appellant was specifically asked by the High Court if he would wish to lead any evidence in defence but he replied in the negative. In these circumstances, it is alleged that no case has been made out by the appellant for summoning the said two witnesses and his prayer in that behalf ought to be rejected.
46. After having heard the learned counsel for the parties I feel that this application must be rejected. It may be noted that in the case of Agha Muhammad Safdar no application was made by or on behalf of the appellant that he be summoned as a Court-witness. It is true that an application was made on behalf of Mian Muhammad Abbas, but he has made no grievance of the fact as to its dismissal, or that he has been prejudiced. The main reason for which the appellant seems to have missed the opportunity to summon Agha Muhammad Sardar as a witness was because he had boycotted the proceedings. But this is hardly a ground which can be urged in support of his said application. The word `boycott’ is unknown in the legal system this country, therefore, the appellant, even if he can be said to have a valid grievance against the conduct of the trial by the High Court, ought not to have boycotted the proceedings, and instead placed on the record of the case his written objections pinpointing therein his reasons owing to which he felt D that he was not getting a fair trial.
47. Even otherwise, the summoning of the said two witnesses at this stage would be a waste of time. The object for which these witnesses are required to be summoned has been effectively achieved as Mr. Ahmad Raza Kasuri and Fazal Ali (P. W. 24) who had produced the said ammunition vouchers have been extensively cross-examined on behalf of the appellant in the High Court.
48. In these circumstances, I find no force in this application and the same is dismissed.
(3) Criminal Miscellaneous No. 9 of 1978
49. The prayer made in the third application is that the ten witnesses mentioned therein namely, General (Rtd.) Tikka Khan, Mr. Aziz Ahmad, former Minister of Foreign Affairs, Government of Pakistan, Rao Abdur Rashid, former Inspector-General of Police, Punjab, Director, Press Information Department, Government of Pakistan, Islamabad, Officer concerned from the C. M. L. A. Secretariat, Record Keeper or any other concerned official of the Lahore High Court, Director, F. I. A., Lahore, Mr. Muhammad Ali (Film Star) Gulberg II, Lahore, Jam Sadiq Ali, former Minister, Government of Sind, now in London, and Gbulam Mustafa Khar, the former Governor and former Chief Minister, Punjab now in London, may be summoned as witnesses for the following reasons :-
That General (Retd.) Tikka Khan would give evidence to show that it was he who had got Mr. Masood Mahmood transferred from the Ministry of Defence ; Mr. Aziz Ahmad would give evidence to show that he had recomm.-nded Mr: Masood Mahmood to the then Prime Minister for an appointment to some important post, ‘e.g. Director, Intelligence Bureau, and that on his appointment as Director-General, F. S. F. he was happy, as also that in the year 1977 massive interference had taken place in the internal affairs of Pakistan ; Rao Abdur Rashid would give evidence to show that the contents of his affidavit filed along with the additional memorandum of appeal, in this Court, were true ; the Director of Press Information Department to produce the record/Press reports of the public speeches/addresses made to the nation by the C. M. L. A. on Radio/r. V. network from 5-7-1977, as also to produce the Press reports/Press releases of the interviews given by the C. M. L. A. to Urdu Digest and Kehan International of Iran in the month of September, 1977, as reported in the Morning News and daily Musawaat dated 11-8-1977 and 28-8-1977 respectively ; that the officer from the Secretariat of C. M. L. A. also to produce any of the said documents and Press releases, etc. that the record-keeper or any other concerned official from the High Court to produce (i) the record of the complaint case instituted by Mr. Ahmad Raza Kasuri concerning the murder of his father’; (ii) the record of the Habeas Corpus Petition filed by Mst. Roshan Bibi on behalf of Roshan Ali, bearing Writ Petition No. 2434 of 1977, (iii) the record of Habeas Corpus Petition filed on 6-7-1977 by Mr. Aftab Gul, Advocate, for the release of the appellant ; (iv) the record of the bail application in this case which was disposed of by Mr. Justice K. M. A. Samdani on 30-9-1977 ; (v) the record of the Habeas Corpus Petition (No. 3732/77) filed by Begum Nusrat Bhutto against the detention of the appellant and others under M. L. O. 12 ; (vi) the Director, F. I. A., Lahore to produce the record pertaining to the orders of the Federal Government for the re-investigation of the present case, as also the correspondence of the said Government with the provincial police regarding the taking over of the investigation of the case by F. I. A. ; Mr. Muhammad Ali (Film Star) to give evidence to show that the incident in which he was fired upon had nothing to do with the appellant, and the prosecution evidence in that behalf was false ; Jam Sadiq Ali to give evidence to show that the contents of his affidavit sent by him to this Court are true ; and Mr. Ghulam Mustafa Khar to give evidence to show that the contents of his affidavit sent by him to this. Court are also true and correct.”
50. Apart from the fact, that none of the aforesaid evidence has any real relevancy to the facts of this case, and is not at all necessary for its decision, the appellant has again pleaded that since he had boycotted the proceedings in the High Court he could not effectively defend himself. This ground, as already mentioned, is not available to him under the law. The application is, therefore, also dismissed.
Objections as to the Mode of Trial
51. Before embarking upon an examination of the evidence produced and relied upon by the prosecution at the trial, it is necessary to deal with the several contentions raised by Mr. Yahya Bakhtiar as to the legality of the trial itself, as well as about the admissibility of certain pieces of evidence and other allied matters.
Question of Prior Trial of Complaint Case
52. Mr. Yahya Bakhtiar contended, in the first instance, that the trial stands vitiated for the reason that the complaint cast filed by Ahmad Raza Kasuri should have been tried before taking up the challan case for trial. In support of his contention he relied on Nur Elahi v. The State (P L D 1966 S C 708).
53. Before dealing with this contention it would be of advantage to recapitulate essential facts. The F. I. R. .No. 402 (Exh. P. W. 1/2) relating to the present incident in which Nawab Muhammad Ahmad Khan lost his life was disposed of as untraced on 1st of October, 1975, on the basis of the letter of the Inspector-General of Police, Punjab, dated 27th of September, 1975, addressed to the Home Secretary, Government of the Punjab (Exh. P. W. 35/4). Ahmad Raza Kasuri took no further steps until the promulgation of Martial Law on 5th of July, 1977 ; and thereafter he filed a complaint before the Ilaqa Magistrate on 30th of July, 1977, in which an identical motive and version of the incident was given as in the challan charging Zulfiqar Ali Bhutto, Masood Mahmood, former Director-General, Federal Security Force, Saeed Ahmad Khan, former Chief Security Officer to the Prime Minister, and Rao Abdur Rashid, former Inspector-General of Police, Punjab, “for offences under sections 302, 307 and 34 read with sections 120-A/109 and 120-B etc. etc., P. P. C.” The learned Magistrate on the same date ordered that it be entered in the relevant register and sent to the Sessions Court for trial.
54. On the motion of Ahmad Raza Kasuri, the complaint was transferred, by order dated 15th of August, 1977, to the High Court for trial by a Division Bench. In the meantime, as a result of the re-investigation of the case which commenced on 24th of July, 1977, on the basis of the F. I. R. (Exh. P. W. 1/2) an incomplete cballan was presented on 13th of September, 1977, in the Court of the Ilaqa Magistrate which was transferred by the High Court, by order dated 13th of September, 1977, for trial by itself on the basis of an application filed by the Special Public Prosecutor ; and the learned Chief Justice, by the same order; constituted a Bench of 5 Judges, including himself, to hear the case. The final challan presented in the Court of the same Magistrate was also sent to the High Court. During the interregnum, as would appear from the order-sheets, no progress in the complaint case was made. However, on 31st of August, 1977, Ahmad Raza Kasuri had showed his inclination to proceed with the complaint, as he was not satisfied with the statement of the learned Assistant Advocate-General that he was still not in a position to state whether the challan was intended to be filed in this case. He was directed to submit a list of witnesses with their addresses and the gist of their depositions. On the next date of hearing the Division Bench without issuing process transferred the complaint case to the larger Bench trying the challan case by order dated 18th of .September, 1977. The challan case was tried and concluded by judgment dated 18th of March, 1977, with the awareness of the complaint case -pending before that Bench.
55. Adverting now to the
contention that the violation of the procedure laid down in the above-cited case has cau3ed
prejudice to the appellant, it may be stated at the outset that the facts of
the two cases are not parallel, as in the precedent case for the murder of
Muzaffar Paracha, Nur Elahi had lodged a report with the police naming Ch.
Zafarul Haq, Ihsanul Haq and Nawazul Haq as the alleged murderers. The police,
on investigation, found Ch. Zafarul Haq and Nawazul Haq to be innocent and
mentioned their names in Column No. 2 of the challan, and instead prosecuted
Ch. Ikram and
56. The complainant .made an application for trying the two cases separately, but the Additional Sessions Judge ordered the joint trial of the two sets of accused, which order was challenged in the High Court, and set aside. The High Court directed that the challan case should be tried first and the common witnesses in the two cases should be examined only once and their evidence read in both the trials. It was further laid down that any additional evidence which the complainant wished to lead in his case should be recorded after the conclusion of the evidence in the challan case, and the judgments should be pronounced simultaneously. This matter came up before this Court by special leave, and it was held that a fair procedure would be for the trial Court to take up the complaint case first for the reason as under :-----
“This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution.”
57. In the instant case the version is the same which is not the feature in. the above-cited case ; and as for the accused cited in the complaint case, the appellant is common in both the cases, whereas Masood Mahmood who would have also been an accused in the challan case has been granted pardon and examined as an approver. Saeed Ahmad Khan is a witness in the challan case, while Rao Abdur Rashid is neither a witness nor an accused in that ease ; and it may be stated that the complainant has not implicated either of them as accused in his evidence in the challan case. Therefore, there was no necessity for a separate trial of the two cases when, technically speaking, there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant. It was only to avoid prejudice to the complainant that a particular procedure was devised in the reported case of .far Elahi, but to say that invariably it should be E followed even if the facts are distinguishable is not correct, as it does not E amount to a declaration of law. Having held so, we might also point out that the objection to the trial, if any, should have been taken before the trial Bench ; and not having done so, it is too late in the day to urge that it has caused prejudice to the appellant, when factually none is shown. Accordingly, this contention has no force.
58. I shall now deal with the objections raised by the learned counsel for appellant Zulfiqar Ali Bhutto that a considerable amount of evidence, and he gave details, had been admitted and used at the trial in violation of the provisions contained in sections 32, 30 and 10 of the Evidence Act, which must now be excluded from consideration in arriving at any findings in his appeal.
Objections under sections 32 and 60 of the Evidence Act and hearsay evidence
59. In the course of evidence and also at the stage of the arguments in the trial Court objections were: raised against the admissibility of pieces of evidence in the depositions of prosecution witnesses in which they orally attributed certain statements and conduct to Abdul Hamid Bajwa who was at the relevant time serving as’, the Officer on Special Duty for the Chief Security Officer to the Prime Minister of Pakistan ; Abdul Ahad, the then Deputy Superintendent of Police., Ichhra, Lahore who supervised the investigation of this case by the local police in 1974-i5 ; and Malik Haq Nawaz Tiwana, the first Director-General of the Federal Security Force. All the three had died before the commencement of this trial. The precise objection raised before the learned trial Bench was to the effect that the statements and conduct attributed to them by the prosecution witnesses in their evidence constituted hearsay evidence of the dead persons, which was not admissible under any of the clauses of section 32 of the Evidence Act. But the High Court repelled the objection as discussed in paragraphs 360 to 376 -of the judgment under appeal and held that the pieces of evidence in question were admissible under clauses (2) and (3) of section 32 of the Evidence Act. But in this Court, it was vehemently argued by the learned counsel for Zulfiqar Ali Bhutto appellant that this view formed by the learned trial Bench was wholly untenable and the objectionable pieces of evidence do not properly fall under clauses (2) and (3) of section 32 of the Evidence Act and are, therefore, inadmissible in evidence.
60. In this connection the, entire argument of the learned counsel for the appellant as well as the findings recorded by the learned trial Bench proceeded on the supposition that the pieces of evidence in question constituted hearsay evidence. The general rule is that all oral evidence must be direct. Section 32 of the Evidence Act is operative as an exception to this general rule against hearsay evidence. However, it was submitted by the learned State Counsel that the pieces of evidence in question did not constitute hearsay evidence, and were admissible as direst oral evidence deposed to by the prosecution witnesses. In this view of the matter, according to the learned State Counsel, any recourse to the provisions of section 32 of the Act was by and large misconceived.
61. I shall therefore, first deal with this last-mentioned contention. Indeed in this Court before us much confusion was raised in defining hearsay evidence. Section 3 of the Evidence Act defines a “fact” to mean and includes (1) anything, state of things, or relation of things capable of being perceived by the senses ; and (2) any mental condition of which any person is conscious. Section 59 dealing with the mode of proof of facts lays down that all facts, except contents of documents, may be proved by oral evidence. In this connection section 60 further lays down that oral evidence must be direct ; that is to say if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it ; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it ; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner ; and if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those ground.. This section thus excludes what is commonly known as the “hearsay” evidence.
62. In this connection Monir in his invaluable treatise on the Law of Evidence, 1974 Edition (Volume I, p. 690) has observed that in English law the expression “direct evidence” is used to signify evidence relating to the fact in issue factum probandum, whereas the terms “circumstantial evidence”, “presumptive evidence” and “in erect evidence” are used to signify evidence which relates only to relevant facts (facts probantia). In section 60 of the Evidence Act, however, the expression “direct evidence” has an altogether different meaning ; it is used in the sense of “original” evidence as distinguished from “hearsay” evidence, and it is not used in contradiction to “circumstantial” or “presumptive evidence”. Thus, under the Act all evidence, whether direct or circumstantial in the English sense, must, in the- sense of the Act, be “direct”, i. e., the fact to be deposed to, whether it is a fact in issue or a relevant fact, must be deposed to by a person who has seen it if it is one which could be seen, by a person who has heard it if it is a fact which could be heard, and by a person who perceived it by any other sense if it is a fact which could be perceived by any other sense; and if the fact to be deposed to is an opinion, it must be deposed to by the person who holds that opinion. According to the learned author this section enacts the general English rule that “hearsay” is no evidence.
63. This distinction between direct and hearsay evidence is best illustrated by Wigmore on Evidence, 3rd Edition (Volume V, section 1361), According. to the learned author : “when a witness A on the stand testified, `B told me that event X occurred’, his testimony may be regarded in two ways : (1) He may be regarded as asserting the event upon his own credit, i. e. as a fact to be believed because he asserts that he knows it. But when it thus appears that his assertion is not based on personal observation of event X, his testimony to that extent is rejected, because he is not qualified by proper sources of knowledge to speak to it, (2) But suppose, in order to obviate that objection, that we regard A as not making any assertion about event X (of which he has no personal knowledge), but as testifying to the utterance in his hearing of B’s statement as to event X. To this, A is clearly qualified to testify, so that no objection can arise on that score.
64. In this connection Phipson on Evidence (Eleventh Edition, paragraphs 631-32) has observed that it is a fundamental rule of evidence at common law that hearsay evidence is inadmissible. Simple as this fundamental is, in principle if not in application, there nonetheless exists “a superstitious awe-about having any truck with evidence which involves A’s telling the Court what B said.” Conspicuous uncertainty exists amongst practitioners, Magistrates and Judges as to what evidence does and does not fall within the hearsay rule. One of the -reasons, according to the learned author, for this widespread misunderstanding is the failure to appreciate that the hallmark of a hearsay statement is not only the nature and source of the statement but also the purpose for which it is tendered. In this connection the learned author in paragraph 638 has by way of elaboration observed that in Subramaniam v. Public Prosecutor ((1956)W L R 965 (PC)), the position was summarised in this way “Evidence of statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made”.
65. Phipson in paragraph 643 has
drawn the distinction between the original (term used by the English writers
for the term direct within the meanings of section 60 of our own Evidence Act I
of 1872) and hearsay evidence. He emphasises that out-of-Court
statements may constitute either original evidence (where the statement is in
issue, or relevant, independent of its truth or falsity), or hearsay (where it
is used as an assertion to prove the truth of the matter stated). The key to
this distinction is the purpose for which the evidence is tendered. Section 60
of the Evidence Act is based on this concept of the hearsay rule under the
common law of
66. According to Corpus Juris Secundum, Volume 22-A, section 718, pages 998 generally, the hearsay rule excludes extra judicial utterances when, and only when, offered as evidence of the truth of the matter asserted ; it does not operate to exclude evidence of a statement, request or message offered for the mere purpose of proving the fact that the statement, request, or message was made or delivered, where such occurrence established a fact in issue or circumstantially bears on such a fact.
67. In Subramaniam v. Public
Prosecutor the appellant was found in x wounded condition in the Rangam
District in the State of
68. In Sin. Bibhabati Devi v.
Ramendra Narayan Roy and others (AIR 1947PC19) the relevant issue that arose
was as to whether the plaintiff-respondent
was the Second Kumar Ramendra Narayan Roy of Bhowal who was still alive. The
two Courts in
“Their Lordships are of opinion that the statement and request made by this man was a fact within the meaning of sections 3 and 59, Evidence Act, 1872, and that it is proved by the direct evidence of witnesses who heard it, within the meaning of section 60, but it was not a relevant fact unless the learned Judge was entitled to make it a relevant fact by a presumption under the terms of section 114. As regards the statement that the Kumar had just died, such a statement by itself would not justify any such presumption, as it might rest on mere rumour, but, in the opinion of their Lordships, the learned Judge was entitled to hold, in relation to the fact of the request for help to carry the body for cremation, that it was likely that the request was authorised by those in charge at Step Aside, having regard to “the, common course of natural events, human conduct and public and private business”, and therefore to presume the existence of such authority.”
69. The man who had brought the news and the request in connection with the death of the Kumar of Bhowal was neither identified nor examined as a witness. In spite of this the Privy Council held that the statement and request made by this man was a fact within the meaning of sections 3 and 59, Evidence Act, and that it stood proved by the direct evidence of the witnesses who heard it, within the meaning of section 60 of the Act. These observations by their Lordships of the Privy Council are highly pertinent to the mode of proof of a fact in accordance with section 60 of the Act. The rest of the observations by the Privy Council relate to the relevancy, of this evidence to the facts of that case only.
70. Under the Indian Jurisdiction
in Umrao Singh and others v. State of
71. But in reply learned counsel for the appellant relied on Malik Muhammad Ishague v. Messrs Erose Theatre and others (PLD 1977SC109). In that case the dispute came upto the Supreme Court arising out of a suit tried on the original side of the former High Court of Sind & Baluchistan. In the plaint it was averred that the firm running the business of the Erose Cinema was formed as a result of the partnership deed dated 31-12-1948. In that connection it was pleaded that Mst. Qamar Bano senior widow of Parekh and Mst. Samad Begum sister and Mst. Bismillah Begum step-mother of Rizvi were benami partners for Parekh and Rizvi respectively. In that connection in the evidence Mst. Amine Bai, junior widow of Parekh admitted that she was once told by her husband that Mst. Qamar Bano was shown in the’ deed of partnership as a farzi partner only to save income-tax. In holding that this statement attributed to the husband was not admissible under any of the clauses of section 32 of the Evidence Act, this Court observed;-----
“ .... ... .... the correct position appears to be that this statement is not admissible under any of the clauses of section 32 of the Evidence Act. Evan otherwise, a perusal of the lengthy statement made by this lady leaves no doubt that she had no first-hand knowledge of the affairs of her husband; and a finding as to the legality or otherwise of the 1948 partnership could hardly be based on her evidence. She did not even remember as to when she married the late M. C. Parekh. We would not, therefore, attach any importance to any admission elicited from her on the question of the evasion of income-tax.”
In that case the purpose behind the statement attributed to the deceased husband through the mouth of the lady was to prove the correctness of the real issue raised in the case as to whether these ladies were benami partners only and this statement constituted hearsay evidence and could not be used as direct evidence for that purpose under section 60 of the Evidence Act. Even as the statement of a dead man it was not covered by any of the clauses of section 32 of the Act and was therefore, held to be inadmissible.
72. Mr. Yahya Bakhtiar also referred us to Emperor v. Nga Hlalng (A I R 1928 Rang. 295), Gulzaman Khan v. Emperor (A I R 1935 Pesh. 73), Kashi. Nath Panday v. Emperor (A I R 1942 Cal. 214), Yenkata Reddy v. Emperor (A I R 1431 Mad. 689), Sh. Aslauddin v. Emperor (A I R 1938 Cal. 399), Channu and others v. Emperor (A I R 1948 Cal. 125), Khurshld Ahmad v. Maqbool Ahmad (P L D 1964 Kar. 356), and Pahlwan and 4 others v. The State (P L D 1975 Kar. 847). All these cases are distinguishable for the simple reason that in each one of them the evidence of a statement made to the witness concerned by a person, who was not himself called as a witness, was sought to be relied upon in order to establish the truth of what was contained in the statement of that other person in support of the conviction, and was, therefore, rightly held to be inadmissible as hearsay evidence to prove the truth.
73. In the light of this discussion it is necessary now to carefully examine the objection raised before us in this Court against the admissibility of the specified pieces of evidence of the witnesses attributing statements, acts, and conduct to the dead persons. In this connection during the course of the arguments, the learned counsel for the appellant filed a chart in which he has tabulated the pieces of evidence against which he pressed his objection before us at the hearing. It shall be convenient to deal with them one by one in the light of the above discussion.
(1) According to P. W. 2 Masood Mahmood between 12-4-1974 and 23-4-1974, before his actual appointment by the then Prime Minister as the Director-General, Federal Security Force, he was visited several times, by Mr. Saeed Ahmad Khan, the then Chief Security Officer to the Prime Minister and his Assistant, late Abdul Hamid Bajwa. In that connection the witness deposed (Vol. I, pages 66-67) that: “During these visits, the latter who is now dead, impressed upon me the fact that if I did not accept the job offered to me, my wife and children may not be able to see me again.” In this statement P. W. 2 Masood Mahmood deposed to the visits by late Abdul Hamid Bajwa. He also deposed that the impression created on him by the deceased was that in case he did not accept the job offered to him the life of his entire family may be in danger. The witness was competent to depose to his meeting with the deceased, and the talk that he had with him and the impression that he gained in that meeting. All this constituted direct evidence of what he himself perceived with, his senses, within section 60 of the Evidence Act and was admissible as such. It is, however, altogether a separate question as to what weight could be attached to the testimony of the witness in the circumstances of the case.
(2) P. W. Masood Mahmood stated that the Prime Minister had told him that Mian Muhammad Abbaa had already been given directions to get rid of Mr. Ahmad Raza Kasuri. The witness stated that the Prime Minister then instructed him that he should ask Mian Muhammad Abbas to get on with the job. In that connection ‘the witness further deposed (Volume I, pages 70-71) that “After the Prime Minister bad given me these orders he kept on reminding me and goading me for their execution. This was done by him personally as well as on the green telephone through Mr. Saeed Ahmad Khan and through his Assistant, Mr. Bajwa.” In this passage, according to P. W. 2 Masood Mahmood late Abdul Hamid Bajwa, in his lifetime used to remind him about it on the green telephone. The statement of the witness that the deceased used to remind him about it constituted direct evidence of what he heard from him. It is admissible under section 60 of the Evidence Act to prove simply what he heard and not to prove the truth of that statement.
But a portion of this statement of P. W. 2 Masood Mahmood would constitute hearsay evidence if its object was to establish and prove that Zul: iqar Ali Bhutto had in fact deputed late Abdul Hamid Bajwa to remind him about the execution of the order given by him.
(3) In his cross-examination, P. W. 2 Masood
Mahmood stated that he had knowledge of the fact that arms and ammunition had
been given to Jam Sadiq Ali and late Mr. Abdul Hamid Bajwa for operation
against the Hurrs, in
But a portion of this statement would constitute hearsay evidence if ‘its purpose is to prove that in fact Zulfiqar Ali Bhutto had deputed late Abdul Hamid Bajwa on this mission to see P. W. 2 Masood Mahmood.
(4) In his cross-examination P. W. 2 Masood Mahmood was asked a question if he knew as to when, where and how this conspiracy was hatched. In reply the witness deposed that when he talked to Mian Muhammad Abbas, after having been asked by the then Prime Minister “He (Mian Muhammad Abbas) told me that the orders in that behalf bad already been conveyed by Mr. Bhutto through my predecessor Mr. Haq Nawaz Tiwana who had directed him to do the needful (Vol. I, p. 100).” This answer was elicited in cross-examination of P. W. 2 Masood Mahmood. He deposed to what Mian Muhammad Abbas, co-accused-appellant had told him that orders in that behalf had already been conveyed by Mr. Bhutto through Mr. Haq Nawaz Tiwana deceased who had directed him to do the needful. This statement of the witness about what Mian Abbas accused told him is admissible to that extent as direct evidence under section 60 of the Act.
But any implication from this statement to the effect that Zulfiqar Ali Bhutto appellant had in fact deputed Haq Nawaz Tiwana deceased to appoint Mian Abbas accused for the execution of the plan constitutes hearsay evidence in the mouth of the witness.
(5) P. W. 3 Saeed Ahmad Khan deposed that Mr. Abdul Hamid Bajwa (since dead) had direct access to the Prime Minister over the head of others and according to the witness (Vol. I, page 201) “Mr. Bajwa was very elusive being an old police officer and at times he put me off by saying that the political situation in the country was discussed but I knew that he was doing something more than that.” In this statement Saeed Ahmad Khan P. W. 3 has mostly deposed to his own observations and opinion formed about Abdul Hamid Bajwa deceased who was at the time working as his assistant. As such he was competent to depose to what he noticed about him and gathered from his talks and dealings with him as direct evidence admissible under section 60 of the Evidence Act.
(6) P. W. 12 Muhammad Asghar, S. S. P, Lahore in his evidence (Vol. 11, pp. 361-362) deposed that: Mr. Abdul Hamid Bajwa met me in connection with this case and questioned me as to why the name of the then Prime Minister was mentioned in the F. I. R. I told him that Mr. Ahmad Raza Kasuri was serious to get the name of the Prime Minister recorded in the F. I. R. and as such we had no other option but to register the case on his written statement. He had suggested that the case could be registered on ‘the statement of any other person. He said that the services of some other person could have been procured to act as a complainant and he could have lodged an F. I. R. so that the name of the Prime Minister could have been avoided.” The witness deposed to the conversation that he had with Abdul Hamid Bajwa deceased about this occurrence and the F.I. R. registered in that connection. It constituted direct evidence about the conversation to which the witness was competent to depose under section 60 of the Evidence Act. The fact that late Abdul Hamid Bajwa had died before the date of the evidence is hardly a ground for excluding this evidence.
(7) P. W. 12 Muhammad Asghar, S.
S. P.,
(8) Muhammad Asghar Khan P. W .
12 (Volume II, page 363) further deposed that “As S. S. P., Lahore, I did not
have a free hand in the investigation of the case, because during that
investigation instructions were being issued by Mr. Abdul Hamid Bajwa and Mr.
Saeed Ahmad Khan, which we had to obey. These instructions related to this
investigation”. In this statement the witness deposed to his own personal
difficulties that he as S. S. P.,
(9) P. W. 14 Abdul Vakil Khan,
the then D. I: G. Police,
(10) P. W. 14 Mr. Abdul Vakil Khan also deposed that (Vol. II p. 385) : “I remember Mr. Ahad met me after about a fortnight when I enquired from him if any result has been received from the ballistic expert to whom the empties were sent. I was surprised to hear from him that he had delayed the sending of the empties because these were taken away by Mr. Abdul Hamid Bajwa and then he returned to him after two or three days and after that the empties were sent for the examination. I got annoyed with Mr. Ahad and asked him as to why did he hand over the empties to Abdul Hamid bajwa. He told me that Mr. Bajwa contacted him and told him that these empties were to be taken to the Prime Minister’s House to be shown to the high officers and bemuse of this threat these empties were given to him.” P. W. Abdul Vakil Khan was the D. I.-G: at the time. In this portion of the evidence the witness has at first deposed about the enquiry made by him from his subordinate Abdul Ahad, D. S. P. deceased about the empties in question and the conversation he had with him in that connection. He was annoyed to hear from him that late Mr. Bajwa had taken away these empties for 2/3 days to the Prime Minister’s House to be shown to the high officers. This is admissible as direct evidence under section 60 of the Evidence Act merely to prove the conversation between this witness and Ahad deceased. The witness has competently deposed to his talk which he had with Ahad in this connection.
(11) In case, however, the object of this evidence is to establish that Abdul Ahad had in fact given the empties to Abdul Hamid Bajwa, then this would constitute hearsay evidence. Similarly, the statement of Abdul Ahad that Abdul Hamid Bajwa had told him that these empties were to be taken to the Prime Minister’s House to be shown to high officers, constituted hearsay upon hearsay evidence of one dead person from another who was also dead and as such this was inadmissible in proof of its truthfulness.
(12) P. W. 14 Muhammad Abdul Vakil Khan further deposed that “Most probably I met Mr. Abdul Hamid Bajwa at Civil Lines Police Station on the 12th or 13th of November 1974. I did not ask Mr. Abdul Ahad in the fortnight after which I made enquiries from him whether he had actually despatched the empties because I was not the Investigating or the Supervising Officer. I do not know the name of the S’ H. O. who was investigating the case but I am aware that Mr. Abdul Ahad, D. S. P. was his “immediate Supervising Officer”. I did not make any enquiries about the time of the recovery of the empties but I had come to know on the morning of the 11th that they had been recovered. (Vol. II, p. 397).” The objection raised against this portion of the evidence is misconceived. The witness has deposed from his own personal knowledge and about the enquiries made by him from Abdul Ahad. This constituted direct evidence admissible under section 60 of the Evidence Act.
(13) P. W. 15 Muhammad Waris, another Investigating Officer in the case, deposed as under :----
(a) that “Saeed Ahmad Khan and Abdul Hamid Bajwa told us that the name of the Prime Minister had appeared in the F. I. R. and that we should proceed with wisdom and caution. They further told us that Ahmad Raza Kasuri had named the Prime Minister in the F. I. R. dishonestly (vide Vol. II, p. 407)”.
(b) that “Saeed Ahmad Khan and
Abdul Hamid Bajwa had ordered me to find out disputes over the division of the
(c) that (Vol. II, pp. 409-10) “Saeed Ahmad Khan and Abdul Hamid Bajwa used to keep on repeating that Ahmad Raza Kasuri had named the then Prime Minister Zulfiqar Ali Bhutto dishonestly and falsely”.
The witness (Muhammad Waris Khan P. W.) was entrusted with the investigation into this case. He has competently deposed that during the course of the investigation late Abdul Hamid Bajwa had told him that Ahmad Raza Kasuri had named the Prime Minister in the F. I. R. dishonestly and that they should proceed with the investigation with wisdom and caution. He also ordered and instructed him to find out about the family disputes of Nawab Muhammad Ahmad Khan with the local persons. In these statements the witness deposed from his personal knowledge about the talks that he had with Abdul Hamid Bajwa (deceased) and the orders and directions issued to him. This constitutes a direct evidence about which the witness could depose under section 60 of the Evidence Act.
(14) P. W. 34 Abdul Hayee Niazi, S. H. O. Police Station, Ichhra who was the local Investigating Officer, deposed :-----
(a) that (Vol. II, p. 625) : “Before
I left for the spot Abdul Ahad, D. S. P. told me that he would reach the spot
after visiting
(b) that (Vol. III, p. 626): “The D. S. P. Abdul Ahad directed me to show the empty cartridges to the Ballistic Expert and car also so that it could be ascertained what type of arms had been used”.
(c) that (Vol. III, p. 627): “Abdul Ahad, D. S. P. was my Circle Officer. On 11th of November 1974, at 9/10 p. m. Abdul Ahad, D, S. P. who had his office adjacent to the police station told me to accompany him to Rao Rashid, I. G. Police’s residence. The D. S. P. informed me that the I.-G. had ordered for the production of 24 empty cartridges, lead bullet and cap of the deceased”. .
(d) that (Vol. III, p. 623): “The D. S. P. informed me that L-G. Police had kept the 25 empties and lead bullet with him and had returned the cap. The D. S. P. further informed me that I.-G. Police told him that he would pass further orders and investigation should be conducted according to his orders”.
(e) that (Vol. III, pp. 628-29): “On the 13th of
November 1974, Abdul Ahad, D. S. P. left for
(f) that “I questioned the D. S. P. about empty cartridges and he told me that it was the order and it was to be complied with otherwise both of us would find ourselves in trouble and not only our services would be terminated but we would also be involved in a case. Under these circumstances I had prepared memo. Exh. P. W. 34/4 (Vide Vol. III, p. 629).”
(g) that (Vol. III, p. 630): “On
23rd of November 1974 the D. S. P. gave me twenty-four empty cartridges and ordered me to seal them and send
the same- to the
Inspectorate of Armaments, G. H. Q.,
(h) that (Vol. III, pp. 630-1): “I had sent the lead bullet and the two metallic pieces which had been recovered from the head of the deceased and given to me by Police Surgeon to the Inspectorate of Armaments through Muhammad Sarwar, A. S. L, on the 24th of December 1974 under the direction of the D. S. P.”
In the relevant chart filed in Court before us the appellant has raised his objections against the veracity of the. witness (Abdul Hayee Niazi P. W. 34) rather than against the admissibility of these portions of the evidence. The question as to how far reliance could be placed on the testimony of the witness shall be discussed elsewhere at its proper place in the judgment. But as to the admissibility of these portions of evidence it may be observed that the witness was the local Investigating Officer who conducted the initial investigation (for whatever it was worth) into this case under the supervision of his immediate superior namely late Mr. Abdul Ahad, D. S. P., Ichhra. In that connection according to the witness (P. W. 34 Abdul Hayee Niazi) Abdul Ahad, D. S. P. (deceased) had been issuing directions to him from time to time. He was therefore, the best person to directly depose to the instructions and directions issued to him by the deceased and the steps taken by him in pursuance to these, and as such the evidence was admissible under section 60 of the Evidence Act in proof to the limited extent of the instructions and directions issued by the deceased to the witness and the steps taken by him in that connection from time to time.
According to the witness on 11-11-1974 late Mr. Abdul Ahad, D. S. P. had informed him that
Rao Rashid, I: G. Police had ordered for the production of 24 empty cartridges
and the lead bullet and kept them with him. The deceased also told P. W. 34
Abdul Hayee Niazi that the I: G. had told him that he would pass further orders
and that the investigation should be conducted on th.- lines according to his orders. Similarly, there is the
evidence of the witness to the effect that after Abdul Ahad, D. S. P. had
returned from
(15) In this connection before us the learned counsel for Zulfikar Ali Bhutto appellant also raised a similar objection against the admissibility of another piece of evidence in the statement of P W. 2 Masood Mahmood (Vol. 1, p.65) when he deposed: “I was asked by Mr. Vaqar Ahmad to call on the then Prime Minister in the morning of the 12th of April 1974. 1 was told that I had to call on Mr. Vaqar Ahmad before this interview. Mr. Vaqar Ahmad was very good to me at that meeting and he informed me that the Prime Minister was going to offer an appointment to me which I must accept (Mr. D. M. Awan at this stage objects to the admissibility of this question on the ground that Mr. Vaqar Ahmad’s name is not mentioned in the calendar of witnesses of this case). He drew my attention to the state of affairs of myself and my wife, to the fact that I had small children, and to a rule which provided for the retirement at any time of officers of Grade 21 and above.” The precise objection raised by the learned counsel for the accused-appellant before the trial -Court was that Mr. Vaqar Ahmad was not mentioned as a prosecution witness in the calendar of witnesses in the case and that therefore P. W. 2 Masood Mahmood was not competent to depose about him and as such this evidence about which Mr. Vaqar Ahmad alone could depose was inadmissible through the mouth of this witness. But there is no force in this objection which is wholly misconceived. P. W. 2 Masood Mahmood could competently depose to the meeting that he had with Mr. Vaqar Ahmad, the then Establishment Secretary and the conversation that he had with him. It is admissible as direct evidence of the meeting and what transpired between them. The witness competently deposed to it from his personal knowledge under section 60 of the Evidence Act. Indeed the prosecution is not obliged to produce each and every witness concerning a fact in issue or relevant fact. This may be depending on the circumstances in each case to affect the weight to be attached to the evidence but not its relevancy.
74. As a result of this discussion, I find that bulk of the evidence, against which the objections were raised on behalf of the appellant, was admissible as direct evidence under section 60 of the Evidence Act subject to the observation made above. Therefore, to that extent these objections are repelled. In this view of the matter and to the extent indicated above, even the learned trial Bench was not justified in taking it for granted and acting on the erroneous assumption that the entire evidence against which this objection was raised constituted hearsay evidence.
75. In this connection, however, on the above analysis, certain specified pieces of the evidence of the witnesses attributing statements and conduct to those who were dead, have been held by me to constitute hearsay evidence. The next question, therefore, to consider is whether they were rightly held by the High Court to be admissible in the evidence under section 32 of the Evidence Act.
76. In the evidence, according to P. W. 2 Masood Mahmood, after the Prime Minister had instructed him to ask Mian Muhammad Abbas to get on with the job, he kept on reminding him and goading him for its execution. This was, according to the witness, done by the appellant personally, as well as, on the green telephone through Mr. Saeed Ahmad Khan and “through his assistant Mr. Bajwa”. This statement of the witness that in fact at the instance of the appellant late Mr. Bajwa used to remind him about the execution of his orders constituted hearsay evidence, and is therefore inadmissible.
77. The High Court has no doubt observed that such a statement would be admissible under clause (3) of section 32 of the Evidence Act as tending to incriminate the deceased person, but this observation is not based on a full analysis of the position of Abdul Hamid Bajawa and of Saeed Ahmad Khan. In a later part of this judgment I have reached the conclusion that there was no material on the record to show that Saeed Ahmad Khan knew the nature of the assignment entrusted by appellant Zulfiqar Ali Bhutto to Masood Mahmood, when he had asked Saeed Ahmad Khan to remind Masood Mahmood in this behalf. It is, therefore, possible that the reminder given by Abdul Hamid Bajwa to Masood Mahmood may be of the same kind. In the absence of full material on the record it is not possible to conclude that at the time Abdul Hamid Bajwa reminded Masood Mahmood about the mission entrusted to him with regard to Ahmad Raza Kasuri, Abdul Hamid Bajwa was fully conscious of the nature of the assignment. I would, therefore, hold that the statement cannot be said to be covered by clause (3) of section 32 of the Evidence Act.
78. Next, Abdul Hayee Niazi P. W.
34 has deposed that on 11-11-1974 late Abdul Ahad, D. S.
P.. Ichhra,
79. As already discussed above all this evidence and statements attributed to Abdul Ahad deceased, who was at the relevant time the D. S. P., Ichhra supervising- the investigation into this case, constituted hearsay evidence. As such public servant it was his duty to see that the investigation was conducted fairly on the right lines. But, in case the above conduct and statements attributed to him are believed, then there is hardly any doubt that he would have been criminally liable for knowingly misdirecting the investigation along incorrect lines under sections 217, 218, 506, P. P. C. read with section 29 of the Police Act. In this view of the matter therefore, these statements and conduct attributed to Abdul Ahad deceased by P. W. 34 Abdul Hayee Niazi are admissible in evidence under section 32(3) of the Evidence Act.
80. In this connection an
objection was also raised against the evidence of Ashiq Mohammad Lodhi P. W.
28. He was working as the Acting Assistant Director in Headquarters F. S. F.,
81. Before us objections were
also raised against the admissibility and the mode of proof of the reports
submitted by late Mr. Abdul Hamid Bajwa to the Prime Minister (Z. A. Bhutto)
from time to time. These documents were proved by P. W. 3 Mr. Saeed Ahmad Khan,
the then Chief Security Officer to the Prime Minister. At the time late Abdul
Hamid Bajwa was attached under him as Officer on Special Duty. He deposed that
a file in three volumes (Exh. P. W. 3/1, P. W. 3/2 and P. W. 3/3) was
maintained under his supervision about the “Activities of Ahmad Raza Kasuri, M.
N. A.”. The witness proved some of the reports on the file Exh. P. W. 3/1
bearing the signatures of late Abdul Hamid Bajwa identified by him. Exh. P. W.
3/1-A, Exh. P. W. 3/1-B, Exh. P. W. 3/1-C and Exh. P. W. 3/1-D are the secret reports
submitted by late Mr. Abdul Hamid Bajwa to the Prime II Minister during
December 1973 enclosing therewith secure reports about certain telephone calls
received by Ahmad Raza Kasuri from third persons. The secure reports enclosed
by Bajwa with his secret report are not sighed by their respective authors nor
have they appeared in the witness-box.
As such these have remained unproved on this record and cannot be read in the
evidence. In this connection all that can be said from the secret reports and
endorsement made thereon by the appellant is that Ahmad Raza Kasuri was kept
under surveillance and his telephone was also tapped. Exh. P. W. 3/2-R and Exh. P. W. 3/2-B are the reports sent by
Abdul Hamid Bajwa endorsing therewith the source report (Exh. P. W. 28/1) to
the Speaker of the National Assembly and the Deputy Inspector-General, Police,
82. In addition to these then there are the reports Exhs. P. W. 3/2-C, P. W. 3/2-F, P. W. 3/2-J. P. W. 3/2-K, P. W. 3/1-L, P. W. 3/2-N, P.W. 3/2-O and P. W. 3/2-Q submitted by late Mr. Abdul Hamid Bajwa from time to time during 1974-75, about his talks with and the activities of Ahmad Raza kasuri and the efforts made by him to bring him back to the folds of Pakistan People’s Party. As already stated above, these were proved by P. W. 3 Saeed Ahmad who produced from the record maintained under him and had identified Bajwa’s signatures on them. These reports were submitted by the deceased to the appellant in the ordinary curse of business or in the discharge of professional duty and were admissible in the evidence under section 32(2) of the Evidence Act. In the context of this provision the term “business” includes trade, profession, occupation and calling of every kind. In Keolapati v. Raja Amar Krishan Narain Singh (AIR 1939 P C 249), the question was whether a certain talukdar had embraced Islam, a letter written by the Deputy Commissioner to the Commissioner about the conversion and reporting that the estate of the talukdar should be taken under the Court of Wards, was held admissible under clause (A I R 1925 All. 413) of section 32 of the Act. So also a post-mortem report submitted by a Civil Surgeon was held admissible as a statement made by a dead person in the ordinary course of business and in the discharge of his .professional duty in Mohan Singh v. King Emperor (2), under this clause. There are also the T. A. bills of Abdul Hamid Bajwa Exh. P. W. 3/5, Exh. P. W. 3/6, Exh. P. W. 3/7, Exh. P. W. 3/8, Exh. P. W. 3j.9 and Exh. P. W. 3/10 bearing his signatures. They were produced from official custody and were proved by P. W. 3 Saeed Ahmad Khan who identified the signatures of late Mr. Abdul Hamid Bajwa on them.
Re : Section 10, Evidence Act embodying a special rule as to admissibility of evidence In conspiracy cases.
83. Mr. Yahya Bakhtiar, learned senior counsel for Zulfikar Ali Bhutto appellant, further argued before us that the learned trial Bench acted illegally in admitting evidence pertaining to the charge of conspiracy and its use against the accused contrary to the provisions of section 10 of the Evidence Act. He submitted that according to this section the prosecution evidence in proof of the conspiracy had to be produced in two stages ; at first to establish that in this case there are reasonable grounds to believe that the accused had conspired together to commit the offence ; and only after the ground was thus prepared and the foundation laid, the evidence should have been produced, in the next stage, about anything said, done or written by any one of them in reference to their common intention during the continuance of the conspiracy, so as to be relevant against each of the other accused believed to be so conspiring, both for the purpose of proving the existence of the conspiracy and also for showing that each one of them was a party to it. But, according to the learned counsel in this case the entire prosecution evidence at the trial was produced at a stretch in utter disregard of this provision of the law and to the great prejudice of the appellant. Moreover, the learned counsel submitted, prosecution had failed to establish that there were reasonable grounds to believe that these accused had conspired together to commit the offence and in the absence of any prima facie proof to that effect, the provisions contained in section 10 of the Act cannot be invoked so that the evidence led about anything said, done or written by any one of the accused who was allegedly a party to the conspiracy could not be relevant against the other accused and cannot be read against them. In this connection, in particular the learned counsel submitted that the evidence of P. W. 2 Masud Mahmood approver is tainted and could not be relied upon for this purpose under section 10 of the Act, and this by itself was not sufficient to form any reasonable ground to believe about the existence of the conspiracy generally and that the accused were parties to it.
84. In reply Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, repudiated these contentions advanced on behalf of the appellant and submitted that these were based on a misinterpretation of section 10 of the Evidence Act. He explained that section 10 of the Evidence Act does not prescribe any sequence in which the entire evidence must be adduced under it. It merely regulates the use of such evidence, when and how it is to be evaluated and put to use against the co-conspirators. According to him, in the circumstances of this case the testimony of the approver recorded in Court on solemn affirmation about anything said, done or written by any one of the conspirators, in reference to their common intention and during the continuance of the conspiracy, is relevant against each of the other conspirators and can be used against them at the hearing. He further submitted that it was sufficiently cogent to fulfil the requirement of section 10 of the Act in forming the opinion that there are reasonable grounds to believe that the accused, including the appellant, had conspired together in this unholy and criminal alliance and also to warrant a finding in support of the prosecution case about the existence of this conspiracy and its members beyond any reasonable doubt.
85. We have carefully considered these contentions advanced before us by the learned counsel for the parties on this part of the case. Section 10 of the Evidence Act is a special provision regarding the rule of evidence applicable to cases of conspiracy. It lays down that ;--
“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence ‘or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such ,person was a party to it.”
86. In criminal law a party is
not generally responsible for the acts and declarations of others unless they
have been expressly directed, or assented to by him ; “nemo
87. In support of his contention the learned counsel for the appellant relied on two authorities, the first one decided by the Privy Council in H. H. B. Gill and another v. The King (A I R 1948 P C 128) and the other by this Court in Maqbool Hussain v. The State (P L D 1960 S C 382).
88. In the first-mentioned case, Gill and
Lahiri were convicted by the trial Court for offences under section 165 read
with section 120-B,
Penal Code. The appellant Gill had joined the Indian Army Ordnance Corps and
was serving as the Deputy Assistant Director of Contracts at
(a) that apart from the evidence relevant to the specific charge there was no other competent evidence upon which such a reasonable ground for belief could be rested and (b) that the notes were clearly not admissible against Gill unless section 10 could be invoked. It was plainly admitted by counsel for the respondent that it was upon section 10 only that he relied for the admission of such evidence, though it is not clear what course was taken in this respect in the Courts of India. Upon the case going to appeal, the High Court accepted or at least did not reject the explanation given by Gill in regard to the specific charge, and having accepted it were left with nothing upon which they could found the belief that Gill and Lahiri were conspiring to commit an offence. But without this belief they could not under section 10 justify the admission of Lahiri’s notes as evidence against Gill and without such evidence they had no material upon which they could convict him of conspiracy.”
Continuing their Lordships of the Privy Council further observed :--
But it appears to their Lordships that just as a trial Judge may admit evidence under section 10, when he has such a reasonable ground of belief as is postulated, yet must reject it if at a later stage of the trial that reasonable ground of belief is displaced by further evidence, so the appellate Court, which has from the outset refused that belief, must refuse also to admit evidence which was admissible only upon the footing of the belief being entertained. It is not the true view that in a conspiracy charge of this kind evidence once admitted remains admissible evidence whatever new aspect the case may bear whether in the original or the appellate Court.”
89. Indeed these observations by the Privy Council far from supporting the contention advanced at the bar by the learned counsel go against him, as they do not lay down that the entire evidence admissible under section 10 of the Act must necessarily be produced in two separate instalments, one dependent on the other, and not all at once in one stretch. It appears to me that this section rather regulates the mode of the use of the evidence at the H time of its evaluation rather than the sequence in which it is produced in Court.
90. In the other case of Maqbool Hussain v. The State cited on behalf of the defence, the facts were that the father of Maqbool Hussain appellant wanted to make a gift of some of his lands to his sons from different wives, including the appellant and for that purpose got mutations Entered by the Patwari. According to the prosecution, the appellant was anxious to have the mutation in his favour sanctioned at an early date and in order to achieve his object he offered Rs. 5,000 as illegal gratification to the Tehsildar, Maqbool Hussain Khan, through Ghulam Yasin Patwari and Yasin Ahmad Girdawar, the two co-accused. The Tehsildar passed on the information to his superiors and it was arranged that the culprits should be arrested in the act of passing the bribe. The Patwari and the Girdawar subsequently went to the house of the Tehsildar and tendered the sum in currency notes in a bag. The Patwari also presented the mutation register containing the mutation in favour of the appellant. There was a raid led by the Additional District Magistrate, the money and the revenue papers were taken into possession, and the Patwari and the Girdawar were arrested. In their statements recorded by the Additional District Magistrate on the spot, they repudiated the allegation that they had brought any money to bribe the Tehsildar, and suggested that they were being made the victims of an intrigue by him. The prosecution sought to establish their case by the evidence of Maqbool Hussain Khan, Tehsildar, one Barkat Ali P. W. 5 who was present when Ghulam Yasin and Yasin Ahmad coaccused were said to have tendered Rs. 5,000 to the Tehsildar, and Mr. M. A. Majid, Additional District Magistrate. The accused asserted their innocence at the trial and Ghulam Yasin and Yasin Ahmad adhered to their allegation that the Tehsildar was inimically disposed towards them. No evidence was adduced on behalf of the prosecution that the appellant, Maqbool Hussain had at any time come into personal contact with the Tehsildar. The case against him, therefore, rested entirely on what Ghulam Yasin and Yasin Ahmad were supposed to have stated to the Tehsildar before or at the time of offering the tainted money to him. The learned Judge who dealt with the case in the High Court was of the opinion that the statements of the accused of the appellant made to the Tehsildar could be taken into consideration against him both under section 10 and section 30 of the Evidence Act. The learned Judge went on to observe that, if these statements had stood alone, it was obvious that the conviction of Maqbool Hussain would not have been justified. He rejected the suggestion that the step-brother of Maqbool Hussain might have had him named falsely. In these circumstances, a question of law was raised in the appeal before the Supreme Court as to whether the alleged statements of Ghulam Yasin and Yasin Abmad, as proved by the Tehsildar, were available to the prosecution against the appellant, by virtue of section 10 of the Evidence Act. In that connection the Supreme Court observed that :----
“A plain reading of this section makes it clear that apart from the act or statement of the co-conspirator some prima facie evidence must exist of the antecedent conspiracy in order to attract section 10. Such evidence of a pre-existing conspiracy between the appellant and the two Revenue Officers is conspicuous by its absence in this case. Indeed in the questions that were put to Yasin Ahmad and Ghulam Yasin at the beginning of the trial, it was not even put to them that they had offered money to the Tehsildar in pursuance of any conspiracy with Maqbool Hussain appellant. On the contrary, the questions addressed to them clearly mentioned that the two Revenue Officials had approached the Tehsildar with a request to attest mutation No. 332 in the name of Maqbool Hussain on the promise that they would pay him the sum of Rs. 5,000 as illegal gratification for this favour. In the circumstances, it was idle for the prosecution to throw up any suggestion of a ‘conspiracy at the conclusion of the trial’.”
91. This Court further repelled the argument that as the appellant was to get the benefit of the mutation, he must have inspired the attempt to get its sanction expedited. In conclusion the Court disagreed with the opinion of the learned Judge of the High Court to the effect that the statements made by the co-accused were relevant within the meaning of section 10 of the Evidence Act.
92. We find that in this case some of the facts are not sufficiently clear’ from the reported judgment of this Court and therefore our attention was drawn to the judgment of the High Court under appeal before the Supreme Court. It shows that the accused were tried under the Chief Martial Law Administrator’s Regulation No. 30 read with Regulation No. 5 for attempting to give bribe to the Tehsildar, Maqbool Hussain Khan. There was no charge of conspiracy against the accused and therefore, the recourse made by the High Court to the provisions contained in section 10 of the Evidence Act was not warranted under the law and the observations made in this behalf were misplaced. Even otherwise this Court merely observed that a plain reading of section 10 of the Evidence Act makes it clear that “apart from the act or statement of the co-conspirators some prima facie evidence must exist of the antecedent conspiracy” in order to attract this provision. But there is hardly any quarrel with this proposition and this case also does not even remotely advance the precise contention raised before us for the appellant.
93. It is interesting to find
that incidentally a somewhat similar case on facts also came up before the
Supreme Court of India in Badri Rat and another v. The State of
“The incident of August 24, when both the appellants approached the Inspector with the proposal that he should hush up the case against the second appellant, for which he would be amply rewarded, is clear evidence of the two persons having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties. Them cannot, therefore, be the least doubt that the Court had reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence. Therefore, the charge under section 120-B had been properly framed against both of them. That being so, anything said or done by any one of the two appellants, with reference to the common intention, namely the conspiracy to offer bribe, was equally admissible against both of them. The statement made by the first appellant on August 31, that he had been sent by the second appellant to make the offer of the bribe in order to hush up the case which was then under investigation, is admissible not only against the maker of the statement-the first appellant-but also against the second appellant, whose agent the former was, in pursuance of the object of the conspiracy. That statement is admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime, as also to prove the existence of the conspiracy itself. The incident of August 24, is evidence that the intention to commit the crime had been entertained by both of them on or before that date. Anything said or done or written by any one of the two conspirators on and after that date until the object of the. conspiracy had been accomplished, is evidence against both of them.”
94. The Court went on to further observe that;
“Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statements of another. It is only when there is evidence of a concerted action in furtherance of a common intention to commit a crime, that the law has introduced this rule of common responsibility, on the principle that every one concerned in a conspiracy is acting as the agent of the rest of them. As soon as the Court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement or declaration made, by any one of the co-conspirators is, n4turally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the conspiracy. Otherwise, stray acts done in darkness in prosecution of an object hatched in secrecy, may not become intelligible without reference to the common purpose running through the chain of acts or illegal omissions attributable to individual members of the conspiracy.”
95. Here it would be useful to make a brief comparative analysis of the ratio laid down in the foregoing three authorities-Gill’s case decided by the Privy Council, Maq5ool Hussain’s case by this Court, and Badri Rai’s case by the Supreme Court of India, bearing on the interpretation of the identical provisions contained in section 10 of the Evidence Act. 1n the first two cases on the findings that in the absence of any prima facie evidence on the record to fulfil the requirement of the opening words of this section or, in other words, in the absence of any evidence to show that there were reasonable grounds to believe that there were two or mare persons who had conspired together to commit the conspiracy, it was held that anything said, done, or written by one of the alleged conspirators was not relevant against the others and the law of agency between them could not be invoked. The third case under the Indian jurisdiction is the converse of the first two. In that case there was evidence on the record, and the Court found reasons to believe about the existence of the conspiracy and was therefore, justified in holding that anything said, done by one of the two conspirators was also relevant against his co-conspirators. But the point that emerges, and which I need stress at this stage, is that there is nothing in the three authorities to lend support to the contention advanced before us on behalf of the appellant that in these cases the evidence under section 10 of the Act bad been produced piecemeal and in two instalments, in the first instance to comply with the requirements of the opening words of the section for holding that there were reasonable grounds to believe about the existence of the conspiracy, and only thereafter in the second round under the latter part of the section for the purpose of holding that anything said, done or written by any one of the conspirators was relevant against the others as well.
96. In Bhagwan Swarup Lal Bishan Lal and others v. The Slate of Maharashtra (AIR 1965SC682), and Niamat Singh and others v. The State ,(I LR2 All. 250.) the two ingredients of section 10 were reiterated. The observations in the last mentioned case are directly relevant to the point we are considering here ;
“The condition precedent to the application to the rule of law laid down in this section is that there should exist a “reasonable ground” to believe that two or more persons have conspired together if there is no reasonable ground to justify such a belief the special rule of law laid down in this section cannot be applied. It is true that the expression “Were is reasonable round to believe” does not mean “it is proved”. It certainly contemplates something short of actual proof. In our opinion, it means that there should exist prima facie evidence in support of the existence of conspiracy between two accused, and it is then only that anything said, done or written by one can be used against the other.
We do not mean to suggest that evidence to prove the existence of conspiracy or participation of the defendants must be tendered first. The order in which evidence is tendered may not be of importance but the section requires that the use of acts and declarations of one conspirator against the other is strictly conditional upon there being reasonable grounds to believe that two or more persons have conspired together. In our opinion, no such prima facie evidence has been given in this case, and, therefore, the special rule of evidence cannot be availed of by the prosecution.”
This is a clear pronouncement based on good reasons to refute the contention advanced on behalf of the appellant.
97. Again in Balmokand v. Emperor (AIR1915Lah.16), the Court observed that the law, as enacted in section 10 of the Indian Evidence Act, 1872, is much wider and more general than the English Law. Rattigan, J. further observed;
“In order, therefore, to decide in the present case whether any act done or statement made or thing written by an alleged co-conspirator is admissible in evidence against any of the accused persons, the test we shall have to adopt is to see, in the first place, whether there is reasonable ground to believe that a conspiracy existed between him and any such person, and in the second place, whether such act, statement or writing had reference to their common intention.”
98. In Mirza Akbar v. Emperor (AIR1940PC176), their Lordships of the Privy Council after reference to section 10 of the Evidence Act observed that;
“Things said, done or written while the conspiracy was oh foot are relevant as evidence of common intention, once reasonable ground has been shown to believe in its existence.” .
99. In Seth Chandrattan Moondra and 8 others v. Emperor it was stated that;
“The application of section 10 of the Evidence Act follows and does not precede the finding that there is reasonable ground to believe a conspiracy exists and certain persons are conspirators. It is only on the basis of a conspiracy between accused persons that section 10 applies and the act or statement of one can be regarded as the act or statement of all, on the principle of agency.”
100. The methodology employed in the actual application of section 1 of the Evidence Act is fully demonstrated in these cases to the effect that its actual application follows and does not precede the finding that there is reasonable ground to believe that a conspiracy exists and certain persons are conspirators. It merely speaks of the use of evidence in the case, and the section does not control the sequence in which the evidence should be let in. It appears to that these are but only two phases in the exercise of the application of section 10 of the Act, and not two distinct and separate stage laying down the order in which evidence is to be led. In the initial phase and as a condition precedent under this section; the Court has got to find from evidence aliunde on the record that there are reasonable grounds to believe that two or more persons have conspired together to commit an offence or ar; actionable wrong. After having passed this test, the next phase ire the exercise consists in the actual application of the operative part of this section whereby anything said, done or written by any one of such persons in reference to their common intention, during the continuance of the conspiracy, is treated as a relevant fact against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of conspiracy as for the purposes of showing that any such person was a party to it. In fact this section deals with the mode of evaluation and the use of the evidence brought on the record. It does not provide that the proof of existence of the conspiracy must necessarily precede any proof of the acts and declarations of the co-conspirators of the accused for usel against them.
Conclusions as to section 10, Evidence Act
101. To sum up, it will be seen that the facts in issue in a case under section 10 of the Evidence Act are, whether there was an agreement for the alleged purpose and whether the accused was a party to it. Evidence in support of either may be given first. It may be that evidence is first allowed to go on the record about anything said done or written by one of the accused in reference to their common intention during the continuance of the alleged conspiracy for use against the other accused of their participation in the offence, subject to the condition that there were reasonable ground to believe about the very existence of the conspiracy and the partners in it This course is thus provisionally admitting the evidence has a merit in it and is conducive to the expeditious disposal of the trial and, if I may say so, suited to the prevailing conditions in this country where the delays in the administration of justice have become proverbial and moral especially because, as in this case, the trial is not by jury. So that the trial Court at the same time is the Judge both on facts and law in the case.
101. In this connection it will not be out of place to also refer to the provisions contained in section 136 of the Evidence Act. It, inter cilia, expressly lays down that;
“If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”
In appropriate cases this course could be followed in accordance with the provisions contained in section 136 read with section 10 of the Evidence Act (vide Principles and Digest of the Law of Evidence by M. Monir, Volume I, page 90). Therefore, there can be nothing wrong in the course adopted at the trial of the instant case in recording the evidence at a stretch and not in two separate instalments as advocated by the learned counsel for the appellant.
103. This view also coincides with the opinion of some of the modern English writers under the common law even where the jury trial is held. Cross on Evidence (Fourth Edition). Butterworth’s Publication, on page 481 has observed that;
In determining whether there is such a common purpose as to render the acts and extra-judicial statements done made by one party in furtherance of the common purpose evidence against the others, the Judge may have regard to these matters, although their admissibility is in issue, as well as to other evidence. This doctrine is obviously liable to produce circularity in argument.
“Since what A says in B’s absence cannot be evidence against B of the truth of what was said unless A was B’s agent to say those things, how can one prove that A was B’s agent to say them by showing what A said?”
The answer is that the agency may be proved partly by what A said in the absence of B, and partly by other evidence of common purpose. It makes no difference which is adduced first, but A’s statements will have to be excluded if it transpires that there is no other evidence of common purpose ; it is another instance of conditional admissibility.”
104. Similarly Phipson on Evidence (Eleventh Edition), on pages 119-120 has said that;--
“Where two persons are engaged in a common enterprise, the acts and declarations of one in pursuance of that common purpose are admissible against the other ‘this rule applies in both civil and criminal cases and in the latter whether there is a charge of conspiracy or not. It is immaterial whether the existence of the common purpose or the participation of the person therein be proved first although either element is nugatory without the other.”
105. In fact in this connection, it has to be said in fairness to Mr. Yahya Bakhtiar, learned counsel for Zulfiqar Ali Bhutto, that after having heard the learned Special Public Prosecutor in this b-.half, he candidly gave up the objection initially raised by him against the mode of recording evidence under this section at the trial of this case.
Meaning of the phrase reasonable ground to believe
106. The phrase “reasonable ground to believe” in the context of section 10 of the Evidence Act is not defined in the Act. However, some assistance can be derived from cases defining this or similar phrases used in some other laws. In (Moulvi) Fazlul-Quadar Choudhury v. Crown (PD 1952 F C 19) a somewhat similar term “reason to believe” in the context of the provisions contained in section 4 (1) of the Bengal Criminal Law Amendment Act (1942), came under discussion for its interpretation before the Federal Court of Pakistan. According to this section, whoever has in his possession anything for which there is “reason to believe” to have been stolen, if he fails to account for such possession to the satisfaction of the Magistrate, shall be liable to fine or to imprisonment. In judicially construing the phrase “reason to believe” in the context, the Court observed that “It is not enough to show that there is reason to suspect that the articles found have been stolen or fraudulently obtained. Something more is required and that something is “reason to believe” ; ‘belief’ being a conviction of the mind arising not from the actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of an ‘absolute’ certainty because the accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial.”
107. In Niamat Singh and others v. State (I L R 2 All. 25), in interpreting section 10 of the Evidence Act, the Court held that the expression “there is reasonable ground to believe” does not mean that “it is proved.” It certainly contemplates something short of actual proof and only means that there should exist prima facie evidence in support of the existence of the conspiracy between those who were at least believed to be the conspirators. In simple English it means something more than merely acting upon conjectures or suspicion. It reflects a state of mind where the lurking doubts, if any, have been dispelled and in their place an amount of L conviction and assurance has developed giving rise to a belief based on some reasons, although it has not yet fully ripened into an absolute certainty or proof of the thing. -In other words, before this section is pressed into service in the sense that before anything said, done or written by any one of the conspirators in reference to their common intention during the continuance of the conspiracy, is used as a relevant fact against the other fellow conspirators, there must be sufficient evidence on the record for holding, at least, prima facie generally as to the existence of the conspiracy and its members.
108. Mr. Yahya Bakhtiar next contended that at any rate under section 10 of the Evidence Act things said, done or written by one of the conspirators, are relevant as evidence of common intention, only if they relate to the time when the conspiracy was continuing. In other words, according to him the words of this section are not capable of being widely construed, so as to include the statement made by one of the conspirators with reference to the past acts, after the conspiracy has already come to an end. In developing his argument, he submitted that on this premises even the evidence of an approver in Court about the things said and done by one of the conspirators in the past in reference to their common intention, is not relevant against the other conspirators.
109. On a plain reading of the section, it is clear that things said, done or written by one conspirator in reference to their common intention to be admissible against his coconspirator, must have taken place when the conspiracy is still in existence or in progress. Hence, a declaration or act of one of the conspirators is not admissible in evidence against the other members of the conspiracy, if it was made after termination of the conspiracy. In this connection, there are two necessary- requirements to be fulfilled, viz, that it must be (a) in reference to their common intention and (b) when the conspiracy is still in existence or in progress, before its termination. If these requirements of the section are fulfilled, in a case of conspiracy, a witness may give evidence about the things said, done or written by one of the conspirators in reference to their common intention, during the existence of the conspiracy, so as to be admissible against the other co-conspirators. An approver to whom pardon has been granted is a competent witness. Therefore, section 10 does not cease to apply to anything said, done or written by a conspirator during the relevant period, simply because that conspirator gives evidence as an approver.
110. In this connection in
Vishindas Lachmandas and others v. Emperor (A I R 1944 Sind I), it was observed
that the act of one conspirator is the act of ail; each conspirator is deemed
the agent of his fellow-conspirator,
and section 10, Evidence Act, does not cease to apply to “anything said, done
or written” by a conspirator simply because that conspirator gives evidence as
an approver. In Tribuvan Nalh v. The State of
“Of course, as accused person cannot be compelled to give evidence as a prosecution witness in view of the expression “in disproof of the charges” in section 342-A. But once his evidence as a witness for the defence is on record, tinder sect “on 10 of the Evidence Act, 1872, evidence as to the communications between one conspirator and the other during the time that the conspiracy is going on and relating to implementing that conspiracy, is relevant evidence. The statements by one accused to another and the evidence as to the acts done by him disclosing participation by the other accused in the conspiracy are also relevant.
111. In Balmokand v. Emperor (A I R 1915 Lah. 16) and Bhala Nath and others v. Emperor (A I R 1939 All. 567), in spite of the weaknesses inherent in the statements of the respective approvers as witnesses on solemn affirmation in Court, their evidence was relied upon and made use of against the accused on this principle contained in section 10 of the Act. Similarly in R. v. 6.7llagher (15 Cox 291 (C C R)), where two prisoners were jointly indicted for conspiracy, and one of them pleaded guilty, and the other not guilty, the evidence of the prisoner who pleaded guilty was held admissible against the other in support of the indictment.
112. In this connection, I find that the following cases cited before us by the learned counsel for the appellant are not in point and are distinguishable. In the leading case under the Common Law of England in Queen v. Blake ((1844) 6 Q B 125). Tye who was a Customs House agent and Blake, a landing waiter, had allegedly conspired for evading custom duty payable on the import of goods. In evidence the prosecution produced an entry in Tye’s day-book in order to prove that the quantity of the goods actually imported was much larger than the duty paid on them. The counterfoil of a cheque issued from the cheque book of Tye was also produced in which an account was written by him showing, as suggesting, payment of a certain sum, and dated after the goods were passed, representing the share of Blake in the mal-profits thus made by the evasion in the payment of the custom duty under the conspiracy. In that connection the Court was of the opinion that Tye’s day-book was evidence of what was done towards the very acting in concert which was to be proved, and was therefore, receivable in evidence against Blake in proof of the conspiracy. As to the counterfoil and the writing on it, it was observed that those were trade after the conspiracy had been carried into effect and therefore, the same could not be used in evidence against Blake. Lord Denman, C. J. in rejecting this document said:
“ . . . . . . . on the principle that a mere statement made by one conspirator to a third party on any act not done in’ pursuance of the conspiracy is not evidence for or against either conspirator.”
and Coloridge, J. said that it “did not relate to the furtherance of the common object.” The ratio in this case was followed with approval by their Lordships of the Privy Council in Mirza Akbar v. King-Emperor (A I R 1940 P C 176). It may be seen from the discussion that follows that both these authorities are distinguishable.
113. In Mirza Akbar v. King-Emperor the facts were that
Mst. Mehr Taja arid her paramour Mirza Akbar appellant bad entered into a
conspiracy and had hired the services of one Umar Sher to murder her husband
Ali Askar deceased. The Additional Sessions Judge,
“The common intention is in the past. In their Lordships’ judgment the words `common intention’ signify a common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships’ judgment section 10 embodies this principle.”
114. In this case their Lordships of the Privy Council have rightly drawn a distinction between communications among conspirators, while the conspiracy was going on, with reference to the carrying out of the conspiracy, and statements made, after arrest or after the conspiracy has ended, by way of description of other events then past. Thus, in substance all that their Lordships of the Privy Council have held is that the statement of Mst. Mehr Taja made outside the trial Court in the absence of the appellant with reference to their past acts done in the actual course of carrying out the conspiracy, after it has been completed, cannot be used against him under section 10 of the Act. The act of making this statement, as such, after the termination of the conspiracy, cannot be held to be “anything said, done or written” by one of the conspirators “in reference to common intention”, as an agent for her co-conspirator so as to bind him with its contents. It may at best be usable against the appellant (co-accused) for whatever its worth, under section 30 of the Act as a confession of a co-accused but not as evidence of anything said, done or written by a conspirator “in reference to their common intention” for the purposes of section 10 of the Act so as to be binding against .aim as well. But all these considerations would be irrelevant in case she was not a co-accused and had appeared as an approver as a competent witness at the trial of the murder of her husband. Then in that event her statement in Court at the trial recorded in the presence of the appellant directly deposing to anything said, done or written by any one of the conspirators in reference to their common intention during the existence of the conspiracy, would have been admissible against him under section 10 of the Act.
115. In Mirza Akbar v. King-Emperor the Privy Council
on its construction of section 10 of the Act relied on some decisions in
APPLICATION OP SECTION 10, EVIDENCE ACT TO THE PRESENT CASE
116. Now, the question is whether the prosecution has succeeded in establishing reasonable grounds to believe that there was a conspiracy in this case, so as to attract the application of section 10 of the Evidence Act. Mr. Ijaz Hussain Batalvi submitted that if the evidence of the two approvers is taken into account, then this requirement is amply fulfilled. In the preceding paragraph I have reached the conclusion that there is no legal impediment in the way of considering the direct testimony of an approver, who appears at the trial as a competent witness, for the purpose of determining whether there is reasonable ground or not within the meaning of section 10 aforesaid.
117. The evidence of the two approvers Masood Mahmood and Ghulam Hussain need not be recapitulated here at any length, and it would suffice to say that they have given sufficient details of the marine in which the conspiracy was initiated, and subsequently executed through the agency of the Federal Security Force. This evidence prima facie shows that there was, indeed, a conspiracy between the appellants as well as the two approvers to commit the murder of Ahmad Raza Kasuri, and that in execution thereof his father was killed. On the basis of this evidence section 10 would be clearly applicable. It is to be noted that at this stage the question is not whether a conviction can be based on the evidence of the two approvers, but merely whether it furnishes a basis for reasonable ground to believe, that certain persons had conspired to commit a particular offence. This requirement is clearly fulfilled by the detailed evidence of the two approvers.
118. Even if for any reason the evidence of the approvers is kept out of consideration for the purpose of determining of application of section 10 of the Evidence Act, there is still ample material to furnish reasonable ground for the belief mentioned in the section. The evidence of the complainant Ahmad Raza Kasuri supported by the documentary evidence as to motive, the oral and documentary testimony of M. R. Welch (P. W. 4), the supporting evidence of Saeed Ahmad Khan (P. W. 3), the identity of the ammunition employed in the Islamabad incident and the present occurrence at Lahore, as well as the evidence of witnesses like Fazal Ali (P. W. 24), Amir Badshah (P. W. 20) and Driver Muhammad Amir (P. W. 19) as to the supply of arms and ammunition from the F. S. F. units, besides the oral and documentary evidence as to the subsequent conduct of appellant Zulfiqar Ali Bhutto, all prima facie go to show that there was, indeed conspiracy involving the present appellants and the two approvers. Her again, the submissions made by Mr. Yahya Bakhtiar as to the value to be placed on these pieces of evidence, and the question of their final admissibility in law are not relevant for the purpose of determining the question of the application of section 10 of the Evidence Act. The cumulative effect of this evidence on the mind clearly is to create a reasonable ground for the belief that the present murder was the result of a conspiracy involving specified persons.
119. As a result I am of the view that the learned Judges in the High Court were right in thinking that the requirements for the application of section 10 of the Evidence Act were amply fulfilled in this case. It has already been stated that the section does not require that the prosecution evidence should be led in any prescribed manner.
Scope and Application of Section 30 of the Evidence Act regarding confessions and statements made under Section 342, Cr. P. C. by co-accused
120. As regards the misapplication of section 30 of the Evidence Act, Mr. Yahya Bakhtiar submitted that the High Court was in error in taking into consideration confessional statements of the co-accused which were in fact self-exculpatory; or were not proved as confessions, as required by section 30 of the Evidence Act, but were made during the course of the trial when the co-accused were examined under the provisions of section 342 of the Criminal Procedure Code, at a stage when the appellant had already been examined under this section and had no opportunity of rebutting or explaining these statements. The learned counsel submitted that in the circumstances these so-called confessions and statements should be altogether excluded from consideration.
121. He further contended that the written statements filed during the trial, or during the hearing of the appeal, by some of the co-accused, particularly appellant Man Abbas, could similarly, not be taken into consideration by the Court against the accused other than the makers thereof. 122. 1 find that the High Court has dealt with these questions in paragraphs 587 to 593 of its judgment. The learned Judges have rightly observed that under section 30 of the Evidence Act, the confession of ai co-accused can be taken into consideration not only against the maker thereof but also against the other accused person, but the section does not say that the confession is to amount to proof, and, therefore, there must be other evidence. However, they have also gone on further to hold, relying upon the case of Dial Q,lWh v. Emperor (A I R 1963 Lab. 33), that a confessional statement of an accused made on questions put to him under section 342 of the Criminal Procedure Code is also covered by section 30 of the Evidence Act. On this view of the matter, they have concluded that` it is open to the Court to take into consideration the confessions made by accused Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad as well as the statements made by them under section 3,2 of the Criminal Procedure Code, at least against Mian Abbas. They have added that these confessions and statements confer added strength to the corroboration furnished by the prosecution witnesses to the statement of Ghulam Hussain, approver against Mian Abbas.
MEANING OF THE TERM `CONFESSION’
123. The first question in the present context is as to what is the meaning of the term confession, as used in section 30 of the Evidence Act. This term is not defined in the Evidence Act, but ordinarily a confession is construed as an acknowledgment in express words, by an accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it. A statement in order to amount to a confession must either admit in terms the offence, or at any rate substantially all the P facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. This definition finds support from a number of authorities cited at the Bar by Mr. Yahya Bakhtiar, namely. Sant Ram v. Emperor (A I R 1924 Oudh 188), Sheocharan v. Emperor (A I R 1926 Nag. 117), Raghunath v. Emperor (A I R 1926 Nag. 119), Abdul Jalil Khan and others v. Emperor (A I R 1930 All. 746), Shambhu v. Emperor (A I R 1932 All. 228), yakala Narayan Swami v. Emperor (AIR 1939 P C 47), Ram Bharose and others v. Rex (A I R 1949 All. 132) and Zahid Hassan Khan and others v. The State (P L D 1964 Dacca 600).
124. It was, however, contended by the learned Special Public Prosecutor that a statement, partly inculpatory and partly exculpaiory, can also be used under section 30 of the Evidence Act as amounting to a confession. Mr. Batalvi placed reliance in this behalf on Lakhan v. KingEmperor (A I R 1924 AIL 511), Rama KariyappaPichl and others v. Emperor (A I R 1929 Bom. 327), Narain Chandra Biswas and others v. Emperor (A I R 1936 Cal. 101), Bala Aajhi v. The State of Orissa (A I R 1951 Orissa 168), The State v. Jamalan and others (P L D 1959 Lab. 442) and Ghulam Qad1r v. The State (P L D 1960 S C 254).
125. A perusal of the facts and observations appearing in these cases, however, does not fully support the learned Special Public Prosecutor, as there is in fact no departure from the basic definition as given by the Privy Council in the case of Pakala Narayan Swami already referred to namely, ‘a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence’. I find it difficult to adopt or follow any observations to the contrary appearing in these judgments, in view of the clear enunciation of the law by the Privy Council, which is fully in accord with the terms of section 30 of the Evidence Act. The principle underlying the section is that the consequences of self-implication in an offence afford some sort of guarantee for the truth of the statement, and when the maker of such statement also implicates another prisoner, it is very difficult, if not practically impossible, to require the Court to exclude that statement altogether from its mind when it comes to consider the case against the other accused. An admission by an accuse person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement party inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him.
POSITION IN RESPECT OF S. 342, CR. P. C. STATEMENTS
126. The next question is whether
an admission of guilt made during the trial under section 342 of the Criminal
Procedure Code or otherwise can be taken into consideration against the co-accused, under section 30
of the Evidence Act. Mr. Yahya Bakhtiar placed reliance on Mahadeo Prasad v.
King-Emperor (A I R
1923 All. 322), In re : Marudcmuthu Padayachl (A I R 1931 Mad. 820),
127. The learned Special Public Prosecutor has supported the view taken in this behalf by the High Court by placing reliance on Dial Singh v. Emperor (A I 8.1936 Lah. 337) but this case was not followed in A I R 1940 Nag. 287, P L D 1960 Pesh. 170 and P L D 1976 Kar. 583. He has further referred us to A I R 1930 Bom. 354 which had also taken the view that the statements under section 342 are covered by section 30 of the Evidence Act. In view of the recent judgment delivered by our learned brother Muhammad Haleem, J., as a Judge of the Sind High Court in the case of Qazi Parvez Iqbal and 2 others it is not necessary for me to examine the various cases cited by the learned counsel in support of their respective contentions. Most of the judgments cited at the Bar before us have been noticed in this case, and I find myself in respectful agreement with the conclusions reached by Muhammad Haleem, J., to the effect that “upon a consideration of the authorities we are inclined to hold that section 30, Evidence Act, does no specify the form, the confession may take. It may be judicial o extra-judicial. Judicial confession is one which is recorded in the manner laid down by sections 164 and 364, Cr. P. C. while the extra judicial confession may take the form of a document or other statement. Such document may be filed as the statement made in the courts of the trial. Section 30R provides an exception to the rule that an admission can only be used against its maker under section 21 of the Evidence Act. Therefore, in construing section 30 of the Evidence Act regard must be had to the fact that the confession, which is sought to be used against the co-accused like any other piece of prosecution evidence, must be proved before the prosecution closes its side, so as to provide an opportunity to the accused to rebut it. This being the minimum of a fair trial, the keyword `proved’ must have relation to the stage of trial, otherwise it cannot be used in evidence against him. Concluding, therefore the implication cannot be on the meaning of the word `proved’ in section 3 of the Evidence Act.” I fully endorse this view of the law in respect of 342, Cr. P. C. statements.
CONFESSION IS NOT PROOF AGAINST CO-ACCUSED
128. One last point arising in
this connection may also be disposed of. Relying upon Bhubont Sahu v. The King
(P L D 1949 P C 90), Kashmira Singh v. The State of
129. This submission indeed has the support of authority. In the case of Bhuboni Sahu, their Lordship3 of the Privy Council observed that “a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction”. The other judgments mentioned by the learned counsel follow the same rule. Nothing was said by the learned counsel for the prosecution to the contrary.
POSITION OF CON FESSIONS AND 342 STATEMENTS IN THE PRESENT CASE
130. Acting in accordance with the principles brought out in the preceding paragraphs, I would exclude from consideration against appellant Zulfikar Ali Bhutto and Mian Abbas the statements made during the trial by appellants Soofi Ghulam Mustafa, Rana Iftikhar and Arshad Iqbal in answer to questions put to them under section 342 of the Criminal Procedure Code at the close of the prosecution evidence, and after the other two appellants had already been similarly examined. Although, these statements could be said to be proved in terms of section 3 of the Evidence Act, having been made before the trial Court, and although they are self-inculpatory affecting the makers of the statements as well as the other two appellants, yet they cannot be used against the latter for the reason that they were not afforded any opportunity to rebut or explain them. It appears that the High Court has, in fact, used these statements only against Mian Abbas, and not against appellant Zulfikar Ali Bhutto, but even that was erroneous in the light of the legal position explained above.
131. For the same reasons, I would also exclude from consideration against appellant Zulfikar Ali Bhutto, the written statement filed by appellant Mian Abbas in this Court, admitting all the allegations made against him, by the prosecution. Appellant Zulfikar Ali Bhutto had no opportunity of rebutting this statement, as it could not be formally put to him is terms of section 342 of the Code; on the contrary at the trial Mian Abbas has pleaded not guilty.
132. As regards the confessional statements made by Soofi Ghulam Mustafa, Rana Iftikhar Ahmad and Arshad Iqbal, I find that they were duly proved at the trial by the Magistrates who had recorded them under the provisions of section 164 of the Code. They were also put to the non-confessing accused during their examination under section 342 of the Code at the close of the prosecution case. I further find that these confessional statements fully implicated the makers thereof and also affected the other two appellants. It is true that these three accused have pleaded that they did all the guilty acts attributed to them by the prosecution, under orders and pressure from their superiors, but this plea does not detract from the self-inculpatory nature of their statements, as they admitted substantially all the incriminating circumstances of the offences with which they were charged at the trial. These three confessions have therefore, bee rightly taken into consideration by the High Court in terms of section 30 of the Evidence Act.
133. A perusal of the confessional statement made by appellant Mian Abbas under section 164 of the Code shows that he tried to exculpate himself) by laying the blame on approvers Masood Mahmood and Ghulam Hussain and incidentally implicating appellant Zulfikar Ali Bhutto in this crime. In the circumstances, this statement cannot be treated as a confession for the) purpose of section 30 of the Evidence Act and was rightly not used as such by the High Court.
Requirements of sections 331 & l64, Cr. P. C. regarding approvers and their statements
134. It was next contended by Mr. Yahya Bakhtiar that as both the approvers, namely Masood Mahmood (P. W. 2) and Ghulam Hussain (P. W. 31), had on their own admission, failed to make a full and true disclosure of the whole of the circumstances of the case within their knowledge, as required by section 337 of the Code of Criminal Procedure, they could not be regarded as approvers in the legal sense, and for that reason their evidence could not be brought within the ambit of section 10 of the Evidence Act. The learned counsel further submitted that there was also an illegality in the procedure adopted by Magistrate Mr. Zulfiqar Ali Toor (P. W. 10) inasmuch as he had not examined the two approvers as witnesses in the presence of the accused persons as required by subsection (2) of section 337 of the Code, although he had taken cognizance of the case in terms of section 190 of the Code. It appeared to the learned counsel that in these circumstances the evidence of both the approvers became inadmissible and had to be excluded ; or at any rate much weight could not be attached to it. He placed reliance on Mahla v. Emperor (A I R 1930 Lah. 95), and In re : Arusami Goundan (A I R 1959 Mad. 274).
135. In reply it was submitted by Mr. Ijaz Hussain Batalvi that, in the first place, it was not factually correct to say that both the approvers had not made a full disclosure of the facts within their knowledge while giving evidence at the trial, and that at best this criticism could apply to the statements they had made under section 164 of the Criminal Procedure Code soon after the grant of pardon. He pointed out that approver Ghulam Hussain had written a letter to the High Court on the 31st of October, 1977, six weeks before he appeared as a prosecution witness at the trial on the 14th of December, 1977, saying that he had distorted his earlier statement to give some benefit to Mian Abbas, but he now undertook to speak the truth in Court. Similarly, approver Masood Mahmood had also asserted that he was making a full and true disclosure at the trial, although he might have omitted some details in his 164 Cr. P. C. statement. Mr. Batalvi contended that the requirement of law is that the approver must make a full and true disclosure while giving evidence in the case, and that stage arises only during the commitment inquiry or the trial, as a statement made under section 164 of the Criminal Procedure Code is not evidence in the case as defined in section 3 of the Evidence Act. He further submitted that if an approver sticks to the fundamentals then minor variations are of no consequence. I n support of these submissions the learned counsel referred us to Balmokand v. Emperor (A I R 1915 Lah. 16), Bhola Nath and others v. Emperor (A I R 1939 All. 567), and Emperor v. Shahdino Dhaniparto (A I R 1940 Sind 114).
136. It will be useful to refer here to the words used in section 337, itself as to the purpose for which pardon is to be tendered and the condition which must attach to such pardon. The section lays down that the object of the pardon is to “obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence”; and the condition attached to the tender of pardon is that the person concerned must “make a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof”. Subsection (2) of the same section requires that every person accepting a tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
137. It will be seen that there is no provision in section 337 requiring that immediately after the grant of pardon the person concerned shall make a statement under section 164 of the Criminal Procedure Code before the commencement of the inquiry or trial. It seems, however, that in practice an approver’s statement is generally recorded under section 164 of the Criminal Procedure Code soon after the grant of pardon. The object of adopting such a procedure appears to be to bind the approver to a particular version of the incident of which he has knowledge, and the question is whether his failure to make a true and full disclosure of all the facts during the course of such a statement would either deprive him of his status as approver, or otherwise render him liable to action under the law.
138. It seems to me that the answer to both the parts of this question must be in the negative. As already stated, the object of the grant of pardon is to obtain the evidence of the person concerned in regard to the offence to which he was privy in some manner or the other. Evidence as defined in section 3 of the Evidence Act means and, includes (i) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence ;
(ii) All documents produced for the inspection of the Court ; such documents are called documentary evidence.
The word “Court” is again defined as including all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence. Now, in the present case Magistrate Zulfiqar Ali T00’r, who recorded the statements of both the approvers under section 164 of the Criminal Procedure Code, was not authorized to take evidence for the reason that since 1972 the commitment proceedings in cases triable by the Sessions Court had en abolished, and subsection (3) of section 190 of the Code suitably amended to provide that a Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial. As a result, the true position which emerges is that the statement recorded by Mr. Toor under section 164 of the Criminal Procedure Cod could not be regarded as evidence in this case. At best they are previous statements of the two approvers which could be used by the defence for the purposes of their cross-examination.
139. It is true that subsection (2) of section 337 contemplates that every person accepting a tender of pardon shall be examined as a witness in the, Court by the Magistrate taking cognizance of the offence and in the subsequent trial, if any; but it is clear that this provision has to read in conjunction with the relevant part of section 190 of the Code which deals with the subject of cognizance of offences by Magistrates. With the abolition of commitment proceedings there should have been a corresponding amendment in subsection (2) of section 337 of the Code, but the omission of the Legislature to make this corresponding amendment would not in any manner confer jurisdiction on a Magistrate to record evidence by way of commitment proceedings in contravention of the prohibition contained in subsection (3) of section 190 of the Code. It follows, therefore, that under section 337 (2) read with section 190 (3) an approver has now to be examined as a witness only at one stage, namely, at the trial, as the inquiry stage has disappeared. As a necessary consequence, it further follows that the obligation resting on the approver, as a necessary condition of the grant of pardon, is to make a true and full disclosure of the events within his knowledge when giving evidence at the trial.
140. In passing it may be remarked that, while recording a statement under section 164 of the Criminal Procedure Code, there is no obligation on the Magistrate to require the presence of the accused person, as subsection (1-A) of section 164 is only an enabling provision, stating, that any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity cross-examining the witness making the statement. If the Magistrate does not choose to require the presence of the accused, he does not commit any illegality in recording the statement in question, as it is not to be used as substantive evidence against the accused who was not present.
141. In the two cases referred to by Mr. Yahya Bakhtiar it was laid down that an approver must be examined as a witness in the Court of the Committing Magistrate and the subsequent trial of every person tried for the same offence, but these observations had reference to the law when commitment proceedings were in force. The learned Judges were at pains, in these cases, to point out that the approver was under an obligation to give evidence at both the stages, and he was liable to forfeit the pardon if he defaulted in giving truthful evidence at either stage. There can be no cavil with these propositions, but they have to be modified in the light of the fact that commitment proceedings have since been abolished in Pakistan.
142. In A I R 1940 Sind 114, a Division Bench, of the Sind Chief Court took the view that although, under subsection (2) of section 337 of the Code of Criminal Procedure, it was the duty of the prosecution to examine the approver both in the commitment inquiry and at the Sessions trial, yet it was not necessary that he should forfeit his pardon if he did not give a truthful account before the Committing Magistrate on account of the threats and influences of the co-accused with whom he was placed in the same prison cell, when he gave truthful evidence in the Sessions Court in accordance with the, conditions of his pardon. In other words, the learned Judges thought that in these circumstances the approver could be held to have substantially complied with the condition of his pardon.
143. It follows from what has
been said in the preceding paragraphs that the object of the grant of pardon is
to obtain the evidence of the approver, which can only mean, in the present
state of procedural law in
144. The Criminal Procedure Code contains a specific provision, namely, section 339, to deal with a situation where an approve fails to fulfil the essential condition of the tender of pardon by not giving truthful evidence at the inquiry or trial, as the case may be. This section lays down that;----
“Where a pardon has been tendered under section 337 or 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made such person maybe tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter.
Subsection (2) of this section contemplates: “The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial.”
145. It will be seen, therefore, that until such time as the procedure embodied in section 339 of the Criminal Procedure Code is adopted, it cannot be said that the person concerned has forfeited his pardon and cannot be regarded as a competent witness in the case. It is not enough that the prosecution or the defence should allege that the approver has not made a true and full disclosure of all the circumstances of the case; nor is it enough that the trial Court may hold that he has given false evidence. He forfeits his pardon only when the Public Prosecutor initiates action under section 339 of the Coda. The question of the weight to be attached to his statement is altogether a separate question, and ought not to be confused with its legal admissibility.
146. As to the scope and applicability of section 10 of the Evidence Act, it has already been explained in the preceding paragraphs that it is concerned with anything said, done or written by any one of the conspirators in reference to their common intention, and this position is not affected by the fact whether the co-conspirator is made an approver in the case or is tried as a co-accused. Compliance or otherwise with the provisions of section 337 of the Code of Criminal Procedure is, accordingly, irrelevant for the purposes of determining the applicability of section 10 of the Evidence Act. An approver does not cease to be a co conspirator even if he does not make a, true and full disclosure of the circumstances of the case as required by section 337 of the Code of Criminal Procedure.
Requirements of section 342, Cr. P. C. regarding examination of accused at close of prosecution
147. I now turn to the contention that several important pieces of incriminating evidence relied upon by the High Court had not been put to the appellant under section 342, Cr. P. C., with the result that they had to be excluded from consideration by this Court. The learned counsel for the appellant listed the following pieces of evidence which were not put to the appellant:
(i) Statement of Saeed Ahmad Khan (P. W. 3) regarding his conveying the appellant’s message to Masood Mahmood (P. W. 2) on the green telephone in P. W. 3’s own words.
(ii) The evidence of M. R. Welch (P. W. 4) particularly the reports sent by him to P. W. 2 Masood Mahmood.
(iii) Evidence of Fazal Ali (P. W. 24) particularly the evidence bearing on the substitution of empties by Mian Muhammad Abbas, which was accepted by the trial Bench out of several theories or versions about the substitution of empties, but was not put for explanation to the accused. If this theory of substitution was kept out of consideration, the whole of the prosecution story would collapse because it was otherwise an admitted position that the crime empties recovered from the scene of offence did not match with any of the weapons belonging to the Third Battalion of the F. S. F. and alleged to have been used in the commission of the crime.
(iv) The evidence relating to the issuance of ammunition to approver Ghulam Hussain (P. W. 31) on chits without entering them in the Register.
148. The submission of Mr. Ghulam Ali Memon, learned counsel for the appellant who argued this part of the case, was that those circumstances, which have been recorded by the trial Bench as incriminating against the appellant and on which his conviction has been based but were not put to him for explanation, should be excluded from consideration. According to him if that was done, the main basis of the prosecution would disappear, and the whole case would fall to the ground. In support of this submission reliance was mainly placed on the following judgments:
(1) S. M. K. AN v. Crown (P L D 1953 F C 189).
(2) Abdus Salam Molla v. Crown (P L D 1955 F C 129).
(3) Munawar Ahmad v. State (P L D 1956 S C (Pak.) 300).
(4) The State v. Tastruddin (P L D 1962 Dacca 46).
(5) Addl. Advocate-General, W. Pak. v. Abdul Majid (P L D 1965 Quetta 20).
(6) M. Akbar Khan Bugti v. State (P L D 1967 Kar. 186).
(7) Imam Ali v. State (1975 P Cr. L J 489).
(8) Gulzar Ahmad v. State (1975 P Cr. L J 1207).
149. In all these cases the view has been expressed that section 342 deals with the examination of the accused with particular reference to the circumstances appearing in evidence against him, and that compliance with its provisions is absolutely essential in accordance with its terms; and where this is not done, the piece of incriminating evidence not put to the accused should be excluded from consideration, and as a result the conviction might be quashed, or the trial might be set aside, if the remaining evidence was not sufficient to sustain the conviction, or if some prejudice appears to have been caused to the accused.
150. Mr. Batalvi, the learned Special Public Prosecutor, submitted that the objection raised on behalf of the appellant that certain parts of the evidence were not put to him in his examination under section 342, Cr. P. C. was of no avail in the special circumstances of this case. He pointed out that the examination of this appellant, after the conclusion of the prosecution evidence, started on January 24, 1978. In answer to the very first question. he said: “I am boycotting the proceedings of the trial and would not be offering any defence. I will confine my statement to two issues: (1) Why this case has been fabricated against me, and (2) my lack of faith in getting a fair trial and justice. As for the other questions, if they do not directly pertain to my defence, I will be willing to give an answer”. This was followed by his examination under section 342, Cr. P. C., but no answer was given by him to 53 questions put to him that day except in terms of the above propositions formulated by him in his first answer. The remaining 14 question were asked from Mr. Bhutto on January 25 and 28, 1978. Camera proceedings had been ordered on January 25, 1978. The accused did not answer any question relating to the evidence appearing on the record against him, although he made a long statement complaining against the holding of the trial in camera. In reply to certain questions he did not even speak; he either shook his hand or his head.
151. The learned counsel submitted that it was apparent from the above that the accused had deliberately refused to answer any question, and did not endeavour to explain the evidence appearing against him or relating to his defence; and it was in this context and in this background that the question of the alleged failure of the Court to comply with the provisions of section 342 of the Code had to be considered. Mr. Batalvi contended that the examination of the accused was not a game of technicalities. If the accused wished to frustrate the process of law, he could not be heard to say in appeal that a particular question had not been asked from him, and the failure to do so had caused prejudice to his case. Prejudice, he submitted, had to be proved as a matter of fact. It could arise only when the accused had taken part in the proceedings of the Court.
152. As a matter of fact, according to Mr. Batalvi, once Mr. Bhutto had declared that he would not answer any question at all, the Court was not bound to ask him any further questions, but in this particular case, however, there had been full compliance with the provisions of this section. In support of these submissions, he placed reliance on:
(1) Rameshan v. Emperor (A I R 1936 Nag. 147).
(2) Dawarka Singh v. Emperor (A I R 1947 Pat. 107).
(3) Mohyuddin v. Emperor (A I R 1925 Pat. 414).
153. A perusal of these cases shows that they do indeed support Mr. Batalvj. In Rameshan’s case, the accused had put in a written statement and said nothing more. It was observed that it was, undoubtedly, the duty of the Court to put to the accused the various points against him, and the filing of the written statement did not abrogate that duty. If, however, when the Court wanted to put the question and the accused practically refused to answer, saying that he had nothing to say beyond what is stated in the written statement filed by him, it will be useless for the Court to persist with the detailed questioning, and there was no prejudice to the accused.
154. In the case of Dawarka Singh it was observed that the primary matter to be ensured under section 342, Cr. P. C. is that the accused has been given an opportunity to explain vital matters in evidence against him, but if he fails or refuses to give an explanation, his failure or refusal should be made abundantly apparent on the face of the record so that the inference against him, authorised by section 342, may be drawn.
155. In the case of Mohyuddin, it was observed that it was not necessary that every part of the evidence of each prosecution witness should be put to the prisoner. He was at the trial and had heard what the witness had said. All that was required was that he should be given an opportunity to generally state his position. Principle required that the accused should not be convicted without being given an opportunity to explain the allegations against him. The judicial questioning, however, should not become inquisitorial. If these essentials are secured, the trial cannot be impeached. The trial is not vitiated for any deviation from the section unless the accused is prejudiced in his defence.
156. In Sate v. Zia-ur-Rehman (PLD 1973 SC49) certain observations appearing at page 93 of the report though made in a somewhat different situation nevertheless have some relevancy in the present context and may, therefore, be reproduced here with advantage:
“The procedure adopted by the Court was also the summary procedure which was made still more summary by the non-participation of the detenus themselves who refused to participate. Actually, there was no acceleration of any date of hearing in the cases of the Printers and Publishers of the ‘Urdu Digest’ and the `Punjab Punch’. The only acceleration of the date of hearing, which can be complained of, was in the case of the Publisher and Editor of the weekly “Zindagi”. But in this case, too, I find myself unable to say that the acceleration of the date of hearing rendered the proceeding coram non judice or mala fide.
As already pointed out, each of
the detenus had filed long statements challenging not only the authority of the
157. In the alternative, Mr. Batalvi submitted that even if it was supposed that the appellant had answered the questions put to him, and the Court had failed to ask certain other questions, in such circumstances the inadequacy of the examination was not sufficient to vitiate the judgment, unless clear prejudice was shown. The mere possibility that prejudice was caused, was not enough. It was for the accused to satisfy the Court that, in fact, prejudice had been caused to the defence. The question of prejudice was definitely one of inference from all the facts and circumstances of each case.
158. In support of these submissions Mr. Batalvi relied on a large number of cases, wherein the same view had been taken. Some of the leading judgments taking this view are the following :-
(1) Sher Jang v. Emperor (-A I R 1931 Lah. 178).
(2) Ali Shan v. Crown (P L D 1953 Lah. 14).
(3) Abdul Wahab v. Crown (P L D 1955 F C 88).
(4) Ibrahim Bhak v. Crown (P L D 1955 F C 113).
(5) Lalan v. Crown (P L D 1955 F C 132).
(6) M. Yaqub v. Crown (P L D 1956 F C 143).
(7) Bashir Ahmad v. State (P L D 1960 Lah. 687).
(8).Rama Shankar v. State of Bengal (A I R 1962 S C 1239).
(9) Aisna Khatun v. State (1968 P Cr. L J 53).
(10) M. Snnafar all v. State (1969 S C M R 461.
(11) Saleh Aduhainmurl v. State (1971 3 C M R 260).
(12) Ajit Kumar v. State of Bihar (A I R 1972 S C 2058).
(13) Allah Dad v. State (P L D 1978 S C 1.).
(14) Moseh Chauhdry v.
(15) Bimbhadur Pradhan v. State
of
159. From a consideration of the above judgments it is clear that the failure to question the accused with respect to every piece of evidence will not result in vitiating the trial, or in the exclusion of that piece of evidence, unless the omission has caused prejudice to the case of the accused. In fact, this principle is decipherable even from the judgments cited by Mr. Memon, on behalf of the appellant to which a reference has already been made.
160. 1n the light of the above principles, we may proceed to consider whether the contention that the four incriminating pieces of evidence listed at the outset of this discussion should be excluded from consideration, can be given effect to.
161. So far as the failure to call the attention of the appellant to the first two pieces of evidence, namely ----
(i) the statement of Saeed Ahmad. Khan regarding his conveying the message of the appellant to Masood Mahmood on the green telephone in his own words, and
(ii) the evidence of M. R. Welch (P. W. 4), particularly the reports sent by him to Masood Mahmood (P. W. 2) is concerned, I find that the gist of these allegations was put to the appellant in questions Nos. 26 and 27 respectively. Question No. 26 was to the effect whether it was a tact that he had been reminding and goading Masood Mabmood with regard to getting rid of Kasuri, which he had done personally on the green line, and through Saeed Ahmad Khan and Bajwa. It was not necessary to mention the details of the evidence of Saeed Ahmad Khan. Similarly Question No. 27 drew the appellant’s attention to Masood Mahmood’s evidence that during the appellant’s visit to Quetta on the 29th July, 1974, he had asked Masood Mahmood to get rid of Ahmad Raza Kasuri during the latter’s visit to Quetta, and that in pursuance thereof Masood Mahmood had given directions to his local Director M. R. Welch to take care- of Kasuri as he was one of the anti-State element. It is true that the reports subsequently sent by -Welch to Masood Mahmood on Kasuri’s visit to Quetta were not put to the appellant, but Question No. 27 does, indeed, contain a pointed reference to the action taken by the appellant and Masood Mahmood at Quetta in furtherance of the alleged conspiracy. It seems, therefore, that the omission to refer specifically to the evidence of Welch, which was only in corroboration of Masood Mahmood, was immaterial inasmuch as the appellant had been given notice of this part of the prosecution case in no uncertain terms.
162. 1t is no doubt true that the remaining two incriminating pieces of evidence, namely, the evidence of Fazal Ali (P. W. 24) relating to the substitution of empties by Mian Muhammad Abbas, which was accepted by the trial Bench, and the evidence relating to the issuance of ammunition to the approval Ghulam Hussain (P. W. 31) on chits without entering them into the register, were not put ire these terms to the appellant, although in question No. 39 the prosecution allegation regarding substitution of empties by the Police Officers at Lahore was mentioned. However, in our opinion, the above omission will neither vitiate the trial nor entail the exclusion of these pieces of evidence from consideration, by reason of the peculiar conduct of the appellant himself at the time of his examination under section 342, Cr. P. C.
163. Although this section is a mandatory provision, yet its compliance is dependent upon the conduct of the accused himself. In the present case, the accused frustrated these provisions by boycotting the proceedings and refusing to answer any questions put to him relating to his defence. Several judgments have been cited (A I R 1931 Lah. 178, A I R 1936 Nag. 147, A I R 1925 Pat. 414 and A I R 1947 Pat. 106) to show that it may be useless for the Court to persist with the detailed questioning if the accused preferred to be reticent. In fact, in view of the conduct displayed by hire, the Court would have been justified not to ask any further questions. I point of fact, 67 questions were put to him whereby practically all the incriminating pieces of evidence except the two listed above, were mentioned. The answers furnished by him to these 67 questions establish beyond doubt that even if the trial Court had put the said two pieces of evidence to him for explanation, they would not have elicited any replies different from those given by him to the other questions put to him. In these circumstances, this omission has not caused any prejudice to the appellant in his defence.
164. It is now well-established that unless it is proved as a matter of fact that prejudice was caused to the accused with regard to his defence, the validity of the trial is not affected, as section 537, Cr. P. C. cures any such irregularity that might be found.
SCOPE AND APPLICATION OF SECTION 537, CR. P. C. TO CURE IRREGULARITIES IN TRIAL
165. Since the intendment and scope of section 537, Cr. P. C. has been argued at considerable length before us, we may appropriately discuss this question at this stage.
166. Section 537, Cr. P. C. as it stands at present runs as follows :----
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-----
(a) of any error, omission or irregularity in the complaint, report by a police officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice.
Explanation.---In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”
167. The shape in which this section stands at present is the result of a number of amendments made therein since it was enacted in 1898, inter alia, the amendments carried out by the Criminal Procedure Amendment Act (Act XVIII of 1923) and the recent amendments made by the Code of Criminal Procedure (West Pakistan Amendment) Act 1964 (Act XVII of 1964) and the Law Reforms Ordinance of 1972.
168. As originally enacted in 1898, this section was in the following terms “Subject to the provisions hereinbefore contained no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account -----
(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of the want of or any irregularity in any sanction required by section 195, or any irregularity in proceedings taken under section 476, or
(c) of the omission to revise any list of jurors or assbssors in accordance with section 324, or ‘
(d) of any misdirection in any charge to a jury unless such error, omission irregularity, want or misdirection bas in fact occasioned a failure of justice.
Explanation.-in determining whether any error or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage. in the proceedings.
Illustration
A Magistrate being required by law to sign a document signs it by initials only. This is purely an irregularity and does not affect the validity of the proceedings.”
169. The provisions of this section came up for consideration in the case of Subramania lyer (28 I A 257). In this case the Privy Council while dealing with the contravention of section 234 resulting in misjoinder of charges, described it as an illegality and not a mere irregularity that could be removed by section 537, Cr. P. C. and observed;
“Their Lordships are unable to regard the disobedience to express provisions as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not appropriate to illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment . . . .
It was further observed that it would be an extraordinary extension of such a branch of administration of criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity.
170. This decision subsequently was, however, explained in a number of cases, because the Judicial Committee appears itself to have realized that the view taken by it to the effect that a violation of the mandatory provisions of the Code would be an incurable illegality was rather an extreme one. Consequently, in the later decisions of the Privy Council the pendulum began to swing towards the other side. In Abdul Rehman v. Emperor (54 I A 96) there was a violation of section 360 of the Code of Criminal Procedure, which provides that deposition of each witness shall be read over to him in the presence of the accused or his counsel. The High Court held that the omission to do so was a mere irregularity and confirmed the conviction as no failure of justice had resulted. It was pointed our on appeal before the Privy Council that the section was applicable and that non-compliance of such a mandatory provision was illegal on the, principle laid down in Subramania lyer’s case. Their Lordships, however, held that as there had been no actual or possible failure of justice, the appeal could not succeed whether the section of the Code had or had not been properly applied. As for Subramania’s case, it was observed that the procedure adopted in that trial was one which the Code positively prohibited and it was possible that it might have worked actual injustice to the accused.
171. The matter came up again in Pulukuri Kotayya v. Emperor (A I R 1947 P C V) where there was a breach of statutory requirements found in section 162 of the Code inasmuch as the accused were not supplied with copies of the statements first recorded by the police officer for cross-examining the prosecution witnesses. The defect was recognized to be a matter of gravity and it was observed that if there had been a total refusal to supply copies to the accused the convictions were liable to .be quashed. But in the case before them as the statements were made available though too late to be effective, and the Circle Inspector’s notes and the examination of the witnesses were put in the hand of the accused, the defect was taken to be merely an irregularity, which in the peculiar circumstances of the case had not occasioned prejudice to the accused. Referring to the contention that the breach of a direct and important provision of the Code cannot be cured but must lead ` to the quashing of the conviction, Sir John Beaumont observed;
“In their Lordships’ opinion this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a manner different from that prescribed by the Code (as in 28 I A 257), the trial is bad and no question of curing an irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct the irregularity can be cured under section 537 and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.”
172. His Lordship went on to add;
“The distinction drawn in many of
the cases in
The present case falls under section 537, Cr. P. C. Their Lordships hold the trial valid notwithstanding the breach of section 162.”
173. The above principle has been upheld by our Federal Court and Supreme Court in a number of decisions. In Abdul Wahab v. Crown (P L D 1955 F C 88), which has already been mentioned, non-compliance with the provisions of section 342, Cr. P. C., in that the attention of the accused was not drawn to the point or points in evidence which could influence tire mind of the Judge in arriving at conclusions adverse to the accused, and no opportunity afforded to him to give any explanation thereto if he had any, was held to be merely an irregularity curable under section 537, Cr. P. C. on the footing that the accused was literate and could very well follow the nature of the proceedings against him and was also aware of the prosecution case, and no miscarriage or failure of justice was proved. The same principle was adopted in Ibrahim Bhak v. Crown (P L D 1955 F C 113), and later in Faiz Ahmad v. State (P L D 1960 S C 8).
174. A detailed discussion of the scope and purpose of the provisions of section 537, Cr. P. C. was made by the Supreme Court of India in W. Slaney v. State of Madhya Pradesh (A I R 1956 S C 116) and it was observed that “the object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not ,vitiated unless the accused can show substantial prejudice”.
175. After discussing Subramania’s and Puhkuri Kotayya’s cases, their Lordships went on to state : “Now it is obvious that the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question in such cases is whether the departure is so violent as to strike at the root of the trial, and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule, but taken by and large tire question usually narrows down to one of prejudice. In any case, the Courts must be guided by the plain provisions of the Code without straining at its language wherever there is an express provision:
“For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. That was due to the language of the Judicial Committee in 28 I .I3, 257 P C (D). Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice.”
This, in our opinion, has been
the trend of the more recent decision as of the Privy Council and indeed of
later-day criminal
jurisprudence in
176. I may mention here that the recent amendments to section 537 (made in 1964 and 1972 as mentioned at the outset), whereby an irregularity in the mode of trial, including any misjoinder of charges, has been placed in the curable category, ought to set at rest the controversy that has raged around the true meaning of Subramania’s case.
177. The judgment of the Supreme Court of India in W. Slaney’s case was further explained by the same Court in Gurbachan Singh v. State of Punjab (A I R 1957 S C 623) and it was added :-
“In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether she main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.”
178. Before us a large number of
judgments delivered by Courts in
179. In that case the trial of two sots of accused, who, were charged with- the commission of some offence was held together and it was observed that the procedure adopted by the Magistrate was not only against the imperative provisions of the Code, but had actually resulted in causing prejudice to the accused.
180. In two recent decisions of
this Court namely, Wahid Bakhsh v. State (1974SCMR219) and Allah Dad v. State
(PLD1978SC1), the principle that unless the irregularity in the conduct of the
trial has resulted in prejudice to the accused the trial is not vitiated, has
again been reiterated. The observations made in the case of Wahid Bakhsh, where
no specific question was put to the accused with regard to the dying
declaration which was also the F. I. R. in the case, make instructive reading.
It was observed that both before the
181. It will thus be seen that in determining whether an omission, error or irregularity in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, the Court must look to the substance and not to technicalities ; and if the accused has had a fair trial, and has not been prejudiced in his defence, then the error, omission or irregularity would stand cured under the provisions of section 537 of the Code. And as the distinction between an illegality and an irregularity is, to borrow the words of Sir John Beaumont of the Privy Council (in A I R 1947 P C 67), only one of degree rather than of kind, nothing turns on this distinction for the purposes of the application of this curative section.
132. Now, in the particular matter at present under discussion,, viz. the failure of the trial Court to put some pieces of evidence to the appellant under section 342, Cr. P. C. we have se-.n that no prejudice has been caused to him, not, only for the reason that he or his counsel were fully aware of the entire evidence led by the prosecution ; but also b; cause he had, in any case refused to answer most of the questions put to him under a declared stance deliberately adopted by him. In these circumstances the omission, if any, would stand fully cured under section 537 of the Code.
Application arid scope of section 540-A of the Cr. P. C. In the matter of trial proceedings conducted on certain dates in absence of appellant Zulfiqar Ali Bhutto
183. I will next deal with the objection raised by the learned counsel for Zulfiqar Ali Bhutto appellant that the trial of the accused held in his absence from the 16th of November, 1977 to the 30th of November, 1977 and on the 14th of December 1977, as well as on the 17th of December 1977 was not warranted under section 540-A of the Criminal Procedure Code and was vitiated. He further submitted that at any rate the requirements of these provisions were not properly complied with by the trial Bench, with the necessary consequence that the evidence of the witnesses examined on these dates of hearing could not be legally read against the accused-appellant, and the remaining evidence on the record was not at all sufficient to incriminate him. According to him, in proceeding against the accused in his absence the trial Court acted against the cardinal principle of criminal law embodied in section 353, Cr. P. C. that evidence of the prosecution witnesses must be recorded in the presence of the accused. He contended that the Court acted illegally in holding the trial in the absence of the appellant, resulting in grave miscarriage of justice and prejudice to him.
184. The learned Special Public Prosecutor submitted that during the trial Zulfiqar Ali Bhutto had unfortunately fell ill twice and was incapable of personally appearing in and remaining before the Court. Consequently, his personal attendance in Court was dispensed with and the proceedings were taken in his absence, although the presence of his counsel who were all along afforded full opportunity to see their client, seek day to day instructions from him, and cross-examine the prosecution witnesses at length, so that no prejudice was, in fact, caused to the accused in the trial, thus held in his absence on those days. He added that no complaint on this account was subsequently made at any time before the trial Bench during the course of the trial.
185. The general principle of criminal law that the trial of an indictable offence has to be conducted in the presence of the accused, and that for this purpose trial means the whole of the proceedings including sentence, is stated in Corpus Juris Secundum, Volume 23, Sections 973 and 975 ; and has been reiterated in a number of decided cases. (See Basil Ranger Lawranre v. Emperor (AIR 1933 P C 218) and Sultan Singh Jain v. The State (2186. There cannot be any quarrel with this well recognised general principle which is essential for the safe administration of justice in criminal cases. Indeed in this country the general rule is embodied in section 353, Cr. P. C. which expressly lays down that;---
“Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of the pleader.”
187. Under this section it is imperative that all evidence in the trial of cases by Magistrates, summary trials, and trials before High Courts and Courts of Session shall be taken in the presence of the accused, or in certain Circumstances, in the presence of his pleader.
188. But this general rule stated in section 353 of the Code is subject to the opening clause-”Except as otherwise expressly provided”, and it ceases to be applicable in the presence of an express provision to the contrary in the Code. Two of these express provisions to the contrary can be found in section 205 and section 540-A of the Code. Under section 205(1) whenever a Magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. Similarly under section 540-A of the Code, under given circumstances, a Judge or Magistrate may dispense with the presence of the accused, if he is represented by a pleader. Also in section 512 of the Code we have another special rule of evidence by way of exception to the general rule. It provides that where the accused is absconding, or is unknown, witnesses may be examined and their deposition recorded on behalf of the prosecution, even in the absence of the accused and that such deposition may be put in evidence against him subsequently after his arrest. The object of this provision is to see that important evidence is not lost by the time the accused is arrested and brought in Court.
189. In addition to the above some of the superior Courts in the Indo--Pakistan Sub-Continent have held that the power to dispense with the personal attendance of the accused is also implicit in and can be spelt out of the closing line of section 353, Cr. P. C. itself. The observations in State v. Victor Henry and 2 others (P L D 1973 Kar. 273). Sultan Singh Jain v. The State, Dewal Krishan v. The State (A I R 1954 Pepsu 36), Anand Martand and another v. Anant Pandurang (A I R 1956 Madh. Bha. 13), Emperor v. C. W. King (14 Bom. L R 236) and In re : Ummat Hassanath (A I R 1947 Mad. 433). lend support to this view.
190. In Chamanlal and another v. Parashar Singh and others (A I R 1957 Nag. 101) the High Court observed that it bad inherent power under section 561-A of the Code to exempt an accused from appearance in Court beyond those contained in sections 205 and 540-A.
191. But, as already mentioned, the High Courts in India are not unanimous on this interpretation of section 353 of the Code. While some of the Indian High Courts have adhered to the view that the power to dispense with the attendance of an accused at the hearing in Court is implicit in section 353 of the Code, the others are of the opinion that this section by itself does not confer any independent power upon the Presiding Officer trying a case to dispense with tine personal attendance of the accused.
192. In order to fully appreciate the respective contentions of the learned counsel it is necessary here to narrate the relevant facts in some detail.
BHUTTO’S ABSBNCB DUB TO ILLNESS BUT HIS COUNSEL WERE PRESENT
193. In the trial Court the prosecution commenced its evidence on 11-10-1977. In the course of the evidence the statement of P. W. 3 Mr. Sated Ahmad Khan was recorded on 31-10-1977 and he was cross-examined by the learned counsel for Zulfiqar Ali Bhutto appellant for four days when on 8-11-1977 the case was adjourned to 12-11-1977 for his remaining crossexamination. But the case could not be taken up on 12-11-1977 and was adjourned to 13-11-1977 for evidence. At the hearing, on 13-11-1977, Zulfiqar Ali Bhutto accused was not brought to Court from jail and it was reported that he would not be able to appear in Court for two days due to sickness. In the circumstances the Court while adjourning the hearing for two days to 15-11-1977 for further evidence, pointedly drew the attention of his learned counsel to the provisions contained in section 540-A of the Code.
194. On 14th November 1977, the
Superintendent, Jail,
195. In Court, on the next date of hearing on 15-I1-1977, Mr. D. M. Awan, learned counsel for the appellant, filed an application (Criminal Miscellaneous No. 1106-M of 1977) under section 561-A, Cr. P. C. to the effect that Zulfiqar Ali Bhutto accused was not in a position to attend the Court and prayed that the cross-examination of the prosecution witnesses be deferred until the recovery of the accused.
196. This application was placed on the record. At the hearing in Curt, on 15-11-1977; Mr. D. M. Awan learned counsel for the appellant submitted that his client might recover from his ailment in two days. But at the same time he too requested that the case may be adjourned “till such time his client recovers”. The Court however, told him to cross-examine the witness on 16-11-1917 and to seek instructions from his client meanwhile.
197. In these circumstances the proceedings in Court were continued in the absence of Zulfiqar Ali Bhutto accused due to his illness on ten dates of hearing between 16-11-1977 to 30-11-1977 (both dates inclusive). But in Court he was all along represented by a team of lawyers who crossexamined the witnesses produced by the prosecution.
198. On 25-11-1977
Zulfikar Ali Bhutto appellant wrote to the Superintendent of Jail,
199. In the course of the hearing on 26-11-1977 the prosecution produced Mr. Ahmad Raza Kasuri P. W. 1 in Court for his further crossexamination. But Mr. D. M. Awan, learned counsel for Zulfiqar Ali Bhutto accused expressed his difficulty in cross-examining him and submitted that as the Court had earlier agreed, he may be allowed to complete the cross-examination of the said witness in the presence of his client. On this the Court enquired from the learned counsel about his client’s health. In reply he stated that he had met him a day before in jail and that he had no temperature but was only feeling weakness. On this the Court directed that the appellant may be medically examined by a Medical Board constituted by it.
200. But on 27-11-1977 the learned Special Public Prosecutor produced a report of the Medical Board which was to the effect that the accused did not submit himself to the medical examination for, according to him he had only a subjective feeling of weakness, and was of the view that nothing would be found on medical examination as he was not suffering from any organic disease. 1n these circumstances, in the absence of the medical report, the Court told his counsel to enquire from him as to when he would be able to attend the Court proceedings as Mr. Ahmad Raza Kasuri P. W.1 had to be cross-examined in his presence. On the next date of hearing on 28-11-1977 Mr. D. M. Awan informed the Court that the appellant would be able to attend the Court on 3-12-1977.
201. After 30-11-1977, the next date of hearing in the case was fixed for 6-12-1977, when Zulfiqar Ali Bhutto again appeared in Court along with his counsel. In his presence, his learned counsel conducted the cross-examination of Muhammad Sarwar P. W. 17. The prosecution produced Mr. Ahmad Raza Kasuri P. W. I for his further cross-examination by the accused. But at the request of Mr. D. M. Awan the Court adjourned the case to 7-12-1977 when the further cross-examination of the witness was concluded by the learned counsel in the presence of his client.
202. In the circumstances narrated above a part of the cross-examination of P. W. 3 was conducted on 16-11-1977, the evidence of P. W. 4 to P. W. 16 and part of the evidence of P. W. 17 was recorded in the absence of Zulfiqar Ali Bhutto accused, but in the presence of his learned counsel and all the remaining accused and their learned counsel, who were allowed full opportunity to cross-examine these witnesses.
203. On another occasion also; on
the 14th December 1977, Zulfiqar Ali Bhutto accused was not brought to Court
from jail on account of his illness. His learned counsel, Mr. D. M. Awan, who
appeared in Court for him at the hearing was asked to enquire from him if he
wanted a team of doctors to examine him for his treatment. On this Mr. D. M.
Awan a after having contacted him on telephone, informed the Court that he
would like his private physician Dr. Muhammad Iqbal of
204. On the next date of hearing on 15-12-1977, it was brought to the notice of the trial Bench that Zulfiqar Ali Bhutto did not submit to examination by the Medical Board appointed by the Court. He was however, examined by his own doctor, namely Dr. M. Iqbal alone, who reported that the accused had a severe relapse of colitis and was again developing a sore throat. However, on 15-12-1977 Zutfikar Ali Bhutto appeared with his counsel in Court at the hearing and participated in the proceedings.
205. In this connection mention may also be made about another incident which happened in -Court on the 17th of December 1977. According to the order dated 17-12-1977 passed by the learned trial Bench after the examination-in-chief of P. W. 31 Ghulam Hussain approver was concluded, Mr. Irshad Ahmad Qureshi, Advocate, who was to cross-examine the witness firs, asked for time to consult his clients. The Court therefore, directed that his cross-examination would begin at 10-30 a.m. after the recess. Before rising for the recess the Court enquired from the counsel about their reaction to continue the hearing of the case during the coming winter vacations about which the Court had already sounded them on a previous date of hearing. The Court desired that the counsel should give their reaction after conferring with each other. Mr. D. M. Awan, learned counsel for the appellant, then requested that the Court might meet at 10-45 a.m. instead of 10-30 a.m. because he had yet to get copies of a statement. As Mr. D. M. Awan was addressing the Court, Zulfiqar Ali Bhutto appellant while trying to draw the attention of Mr. D. M. Awan, uttered the words “damn it”. The Court told the appellant not to call his counsel “damn it” inside the Court, at which he stated that he was in a “very disturbed condition”. The Court observed that it felt sorry that he was in a disturbed condition of mind but imp upon him that it would, nevertheless, not entitle him to abuse his counsel in Court. The Court further observed that “damn it” was a bad word, but the appellant insisted twice that it was not; and when the Court wanted Mr. Awan to resume his submissions, he (Bhutto) uttered the words: “I have had enough!”. When asked as to enough of what, he replied: “of humiliation and insult”: According to the Court, in view of this persistent unruly behaviour, the appellant was asked to be taken out of the Court. After he was taken out, Mr. D. M. Awan was asked to meet his client during the recess and to request him to help keep the dignity and decorum of the Court and not to adopt an unruly attitude, for otherwise he would be liable under the law and the Jail Manual. The Court then rose for the recess. During the recess, Mr. D. M. Awan was called in the Chamber to know the reaction of his client whereupon Mr. D. M. Awan informed the Court that he had talked to the appellant but be says that he knew the provision of law and the Jail Manual. The Court then passed the following order :--
“From Mr. Bhutto’s attitude in the Court before the recess and his persistence in that attitude as conveyed to us by Mr. D. M. Awan during the recess, as well as by the fact that Mr. Bhutto was by his own admission, in a perturbed state of mind, the Court was satisfied that he was incapable of remaining in Court for the day. His presence was therefore, dispensed with for the rest of the day under section 540-A, Cr. P. C.”
206. It may be added here that this narration of the occurrence in Court substantially agrees with the account given by Zulfiqar Ali Bhutto appellant in para. 23 of his miscellaneous application dated 18-12-1977 (Cr. Misc. 7-M of 1978, Volume of Applications, pages 163-164). The appellant explained that at the time he wag in a very disturbed condition because he had just then learnt that his wife, Begum Nusrat Bhutto had received a head injury during a commotion that ensued when she had gone to see the Cricket match at Gaddafi Stadium in Lahore on 16-12-1977.
207. In these circumstances after the recess on 17-12-197.7 when the Court reassembled, Mr. Irshad Ahmad Qureshi cross-examined P. W. 31 Ghulam Hussain approver. Mr. D. M. Awan had next to cross-examine him. But the Court observed that his client was, according to his own admission, mentally disturbed at the time and hence his presence in Court for the day had already been excused. In the opinion of the Court Ghulam Hussain was an important witness and it was proper that, if possible, he should be cross-examined by Mr. Awan when the appellant was present. The Court accordingly adjourned the hearing of the case to the 18th of December 1977 when the cross-examination of P. W. 31 Mr. Ghulam Hussain was resumed by the learned counsel of the appellant in his presence.
208. In the background of these facts let us now turn to the provisions contained in section 540-A, Cr. P. C. For the sake of convenience this section is reproduced below in extenso :-
“(1) at any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that anyone or more of such accused iii or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.”
209. V. V. Chitlay in his commentary on the Code of Criminal Procedure under section 540-A has observed that;
“It is a general provision designed to meet a practical difficulty which is occasionally experienced in trials involving a large number of accused persons, when during the trial, one or more of them are incapable of remaining before the Court, and for inquiries and trial being held in the absence of such persons . . . . . , .”
210. By necessary implication it follows from these observations that section 540-A cannot be allowed to be used as a handle in the hands of the accused who is incapable of remaining before the Court so as to prolong the proceeding. Any other interpretation is likely to lead to mischievous results and defeat the very purpose for which this provision was designed.
211. It seems to me that section 540-A of the Code as is in force in Pakistan was enacted not merely for the benefit of the accused who is incapable of remaining before the Court, but also for the benefit of the other accused whose trial is likely to be delayed unnecessarily for no fault on their part. Subsection (1) of this section is attracted only where there are two or more accused before the Court and any one or more of such accused is or are incapable of remaining before the Court, the Judge or Magistrate may, under certain circumstances, dispense with his or their attendance and proceed with the inquiry or trial in his or their absence. In trials involving a large number of accused, it often happens that “one or more of them, either by chance or design, keep on absenting, themselves in turn from the hearing on ground of ill-health, etc. and the Court finds it difficult to secure the presence of all of them together at the hearing thus resulting in inordinate delay in their joint trial. It was to meet w this practical difficulty that this section was enacted, in the interest of the; expeditious disposal of such cases, for the benefit of the State and’ with a view to avoiding unnecessary harassment to the other accused in attendance at the hearing and for their benefit also.
212. The elements necessary for attracting the jurisdiction of the Judge or Magistrate under the section are:
(a) that there are two or more accused before the Court facing an inquiry or trial under the Code;
(b) that one or more such accused is or are incapable of remaining, before the Court; and
(c) that such accused is represented by a pleader.
It is only on the fulfilment of these conditions precedent that the jurisdiction of the Judge or Magistrate is attracted, and he may after having so satisfied himself in his discretion dispense with the personal attendance of such accused and proceed in his absence. (See P L D 1973 Kar. 273, 1968 P Cr. L J 791, A I R 1924 Lah. 705 and A I R 1940 All. 178).
213. The learned counsel for the appellant contended that under section 540-A of the Code the Judge or Magistrate seized of a case is empowered to dispense with the personal attendance of the accused, only on his application or request, and that be cannot by order impose any forced exemption on him against his wishes. In other words, according to the learned counsel, under section 540-A of the Code, in case one of the accused is incapable of remaining before the Court, then the Judge or Magistrate has no option but to simply act at his behest, either to dispense with the attendance of such accused at his will or else to adjourn the case before him until he is able to re-join the proceedings.
214. I find that there is nothing in subsection (1) of section 540-A ok the Code to put this unwarranted curb on the discretion vested in the Judge or the Magistrate and to lend support to this restricted interpretation sought; to be placed on its plain meanings. Subsection (1) lays down that the Judge or Magistrate may dispense with the personal attendance of I the accused who is incapable of remaining before the Court, and proceed; with the inquiry or trial in his absence provided he is represented by pleader. But under subsection (1) if he considers that the personal attendance of such accused is necessary, he may for reasons to be recorded either adjourn the inquiry or trial or order his case to be taken up or tried separately. In the scheme of this section, reading the two subsections) together, it is clear that the power and discretion resting in the Court is not contingent on an application being made by the accused concerned.. The provision is, in fact, more for the benefit of the co-accused who are present rather than the one who is incapable of attending. It is, therefore, evident that under subsection (1) the Court may, in its discretion, dispense with the personal attendance of the accused in case it considers it necessary, provided that the other requirements of the subsection are fulfilled.
215. As to the meaning of the phrase “incapable of remaining before the Court” valuable assistance can be derived from Emperor v. Radha Raman Mitra (A I R 1930 All. 817), Kali Das Banerjee and another v. The State (A I R 1954 Cal. 576), Trilochan Misra v. State (A I R 1953 Orissa 81), and Chiman Lal and others v. Parashar Singh (A I R 1957 Nag. 101). In these cases the view was generally expressed that these words in the context must refer to an accused’s physical incapacity to remain before the Court and that no accused is entitled under section 540-A, Cr. P. C. to any exemption from appearance in Court unless it is proved that he is physically incapable of remaining before the Court, although a somewhat wider meaning were assigned to this phrase by saying that it “related to some sort of incapacity from attendance arising either out of illness or some other reason such as social ban or peculiar customs of the class to which the parties belong.”
216. The term “incapable” is not defined in the Code, although incidentally it occurs in section 512 as well. For the purposes of elucidation only it may be mentioned that the phrase “incapable of giving evidence” also occurs in sections 32 and 33 of the Evidence Act. It will not be out of place to also mention here that in section 3 of the Evidence Act a “fact” is defined to mean and includes anything, state of things or relation of things “capable” of being perceived by the senses.
217. In the absence of any
definition of the term “incapable” in the Code of Criminal Procedure, it is
permissible to rely on its ordinary dictionary meanings. According to the Law
Lexicon of
218. In the light of the above discussion, in my opinion, without attempting to lay down an exhaustive definition of the term “incapable” in the context of section 540-A of the Code, it only means one who, is not capable of appearing in or remaining before the Court at the hearing to discharge his functions and duties. It may be due to inadequate physical, mental or moral power in him to do so. In the context it refers to, the personal inability, unfitness, and debility in the accused to remain in Court and perform his functions and duties at the hearing. An accused who is infirm, too weak and unfit for reasons of his bad health and illness to appear and remain in Court may be said to be “incapable” of appearing before or remaining in Court at the hearing within the meanings of section 540-A of the Code.
HIGH COURT’S ORDER DISPENSING WITH BHUTTO’S ATTENDANCE WAS JUSTIFIED
219. With this exposition of the true legal position under section 540-A of the Code, let us now apply the same to the facts of this case before us. It is common ground that on 13-11-1977 Zulfikar Ali Bhutto appellant was not brought from jail to appear in Court at the hearing and it was reported that he would not be able to appear in Court for two days due to sickness. The medical certificate dated 14-11-1977 showed that the accused was suffering from respiratory infection and had also some gastric trouble. He was also having temperature. According to another report dated 15-11-1977 he was examined by Professor Iftikhar Ahmad, Secretary Health, Government of Punjab and was found to be suffering from acute influenza ‘ with debility and had temperature, severe nasal congestion and conjunctive congestion and was advised three days’ rest. On the next date of hearing on IS-11-1977 once again the accused could not appear in Court at the bearing and his learned counsel filed an application (Criminal Miscellaneous No. 1106-R of 1977) on behalf of the accused in Court. In paragraph 3 of this application the appellant admitted that he was running high temperature and had a severe attack of flue and that consequently he was not in a position to attend the Court. Even on 25th November 1977, the appellant wrote to the Superintendent, Jail that he had a severe attack of influenza combined with malaria and was slightly better but not fit enough to attend the’ Court at the hearing for over five hours at a stretch. Indeed in this connection it was common ground between the parties, and there can be no two opinions about it, that Zulfiqar Ali Bhutto appellant had been taken ill and was confined to bed from 13-11-1977 to 30-11-1977 and again on 14-12-1977. He was, consequently, incapable of appearing in and remaining before the Court at the hearings on these days. In the circumstances, therefore, in exercise of the discretion vested in it, the Court decided to dispense with his personal attendance in Court under section 540-A of the Code.
220. Paragraphs 1 to 3 of the above-mentioned application (Criminal Miscellaneous No. 1106-H of 197;) are reproduced below and it is stated :-
“(1) That Pakistan Times of, ,14th November, 1977 in reporting the proceedings of ‘13th November; 1.97’ in the above case, has reported that:----
“The Acting Chief Justice, Mr. Justice Mushtaq Hussain, who heads the Bench, observed that although under section 540-A of Cr. P. C. in the absence of one of the accused, his counsel could continue the cross-examination of the witnesses, yet the proceedings were being adjourned as a favour.
(2) That without prejudice to the interpretation of section 540-A, Cr. P. C., it is respectfully submitted that the petitioner has been running high temperature and had a severe attack of flue for the past three days. Consequently under the advice of the Doctor, he is not in a position to attend the Court. His counsel finds himself severely handicapped in cross-examining the prosecution witnesses in the absence of petitioner/accused from whom instructions are needed all the time.
(3) That if in spite of the circumstances, this Honourable Court considers that it can proceed with the trial in the absence of the petitioner and that the case could be adjourned only by way of a `favour’ then the petitioner submits that he does not want any favour as he bad already submitted in a previous application.”
In the end it was prayed in the application that in the interest of justice the cross-examination of the prosecution witnesses be deferred until his recovery. Similarly at the hearing on 15-11-1977 his learned counsel stated in Court that the accused may be able to recover from his ailment in two days, nonetheless he at the same time made a request for a sine die adjournment till such time his client was able to recover.
221. At the hearing on 15-11-1977 the Court simply told the learned counsel for Zulfiqar Ali Bhutto appellant to cross-examine the witness on 16-11-1977, and the case was thus adjourned for one day to enable the learned counsel to seek instructions from him meanwhile. From 16-11-1977 the evidence of witnesses in Court was recorded in the absence of the accused due to his illness but always in the presence of the team of his lawyers.
222. During this period on the 25th of November 1977 Zulfiqar Ali Bhutto appellant wrote to the Superintendent of Jail that he had a severe attack of influenza combined with malaria and was slightly better but was not fit enough to attend the Court for over five hours at a stretch. He, therefore, expressed the opinion that until he was fully recovered, it would not be in the interest of his health to attend the Court for the time being. On 26-11-1977, the learned counsel for Zulfiqar Ali Bhutto appellant informed the Court at the hearing that he, had met him a day before in jail and that he had no temperature but was only feeling the weakness. On this the Court constituted a Medical Board to medically examine the accused in jail. But he did not submit himself to the medical examination. According to him he had only subjective feeling of weakness and was of the view that nothing would be found on medical examination as he was not suffering from any organic disease.
223. It was in these circumstances that proceedings continued in Court in the absence of the accused for ten dates of hearing between 16-11-1977 to 30-11-1977. In this period a part of the cross-examination of P. W. 3 was conducted on 16-11-1977 and the. evidence of P. W. 4 to P. W. 16 and a part of the evidence of P. W. 17 was recorded in the absence of Zulfikar Ali Bhutto appellant. In Court he was all along represented by a team of lawyers who fully participated in the day to day proceedings and cross-examined the prosecution witnesses after having obtained daily instructions by meeting him in jail.
224. Similarly on 14-12-1977 Zulfikar Ali Bhutto appellant was not brought from jail to attend the hearing in Court on account of his illness. In his absence his learned counsel was asked by the Court to enquire from him if he wanted a team of doctors to examine him for treatment. The learned counsel, after having contacted the appellant on telephone, told the Court that he would like Dr. Mohammad Iqbal to examine him. On this the Court appointed a team of doctors including Dr; Mohammad Iqbal to examine him in jail. But he refused to submit to the examination by the Board constituted by Court and was examined by Dr. Mohammad Iqbal only. On 14-12-1977 the Court at the same time observed that the appellant was represented by a counsel and therefore, dispensed with his attendance under section 540-A of the Code to continue the proceedings. In this manner the Court recorded the statements of P. W. 28 and P. W. 30 and the statement of P. W. 31 Ghulam Hussain in examination-in-chief was also partly recorded in the absence of appellant but in the presence of his learned counsel on 14-12-1977 without any objection.
225. Before us the learned Special Public Prosecutor submitted that all these facts go to show that Zulfiqar Ali Bhutto appellant bad in fact fallen ill and was incapable of personally attending and remaining in Court at the hearings from 16-11-1977 to 30-11-1977 and again on 14-12-1977. In defence the learned counsel for the appellant did not dispute the fact that the appellant had in fact fallen ill and was unable and unfit to put in appearance in Court on account of his illness. Indeed this is even otherwise also borne out from the record. The medical certificates, the application dated 15-11-1917 (Cr. Mist. No. 1106-H of 1977), the letter dated 25-11-1977 sent by the appellant to the Superintendent, Jail and para. 16 of the application dated 18-12-1977, 5-1-1978 (Cr. Mist. 7-’VI of 1978) moved by the appellant in the trial Court, all go to establish that the appellant had fallen ill and was unable to appear in Court because of his prolonged illness during this period. He was, therefore, incapable of personally attending and remaining in Court at the hearing in those days within the meanings of section 540-A of the Code.
226. In view of the importance of this case, a large Bench of five Judges had been specially constituted for its disposal on the criminal original side of the High Court, and the prosecution evidence was being recorded almost from day to day as is usual in all murder trials. The importance attached to this case and the circumstances prevailing in the country demanded that it should be disposed of on the merits without any inordinate delay.1 It was in these circumstances that on 15-11-1977 the trial Court in its discretion decided to dispense with the formal attendance of the accused appellant at the hearing in Court and to proceed on with the trial in the) presence of his learned counsel under section 54C-A of the Code.
EFFECT OF THE FAILURE OF THE HIGH COURT TO PASS A FORMAL
ORDER UNDIR SECTION 540-A, CR. P. C. AND TO RECORD REASONS
227. But in this connection before us the learned counsel for Zulfiqar Ali Bhutto appellant submitted that the learned trial Bench in thus deciding to continue with the proceedings in the absence of his client had failed to pass any order, much less a speaking order as envisaged by section 540-A; that the Court did not properly comply with the mandatory requirements of the section ; and also failed to properly and judicially exercise the discretion vested in it under the law. He contended that the failure of the Court to record its reasons as required by the section was a patent illegality which vitiated the trial.
Needless to emphasise here that the law envisages strict compliance with this mode of exercise of jurisdiction. But this does not mean that any error, omission or failure to strictly comply with the mode prescribed for the exercise of this jurisdiction must necessarily in every case result in the vitiation of the trial.
228. It is evident that on 13-11-1977 when the appellant Zulfiqar Ali Bhutto was not brought from jail to appear in Court at the hearing because of his illness, the Court while allowing the adjournment to the appellant to 15-11-1977 for further evidence, had pointedly and expressly drawn the 1attention of his learned counsel, Mr. D. M. Awan to the provision of section 540-A of the Code. Even the appellant who was at the time lying ill in jail was left in no doubt about this order passed by the Court on 13-11-1977. In his own application (Cr. Miscellaneous No. 1106-H of 1977) filed in Court on 15-11-1977 reproduced above, he admitted that according to the Daily Pakistan Times; dated 14-11-1977, during the course of the proceeding in Court on 13-11-1977 the Acting Chief Justice, Mr. Justice Mushtaq Hussain, who heads the Bench, had observed that in the circumstances under section 540-A of Cr. P. C. in the absence of one of the accused, his counsel could continue the cross-examination of the witness. He further submitted in the application that without prejudice to the interpretation of section 540-A, Cr. P. C. he “had been running high temperature” and “had a severe attack of flue for the past three days” and consequently under the advice of the Doctor, he was “not in a position to attend the Court” and that if in spite of the circumstances, the Court considered that it could proceed with the trial in his absence then he did not want any adjournment as a favour to him. This application was actually before the Court on 15-11-1977 when it passed the impugned order. Moreover, the two medical reports dated 14-11-1977 and 15-11-1977 about appellant showed that he was ill and unable to, appear in Court at the hearing. Indeed, even according to the appellant himself he all along remained sick and was unfit to appear and remain in Court. In view of these admitted and incontrovertible facts patent on the face of the record the inevitable conclusion was and the Court must have satisfied itself that the appellant was incapable of appearing in Court, and had passed the order on 15-11-1977 in calling upon the learned counsel for the appellant to reassume the cross-examination of witness in his absence on 16-11-1977 after obtaining the necessary instructions from him. There could be no doubt, that in issuing this direction the Court was all along conscious of the provisions contained and had acted under section 540-A of the Code when it passed the two successive orders on 13-11-1977, 15-11-1977 and in proceeding with the trial on 16-11-1977 and directing the resumption of the cross-examination of the witness by his counsel in his absence. The above-mentioned application dated 15-11-1977 itself showed that even the appellant was also fully aware that in thus proceeding in his absence, the Court was acting in the exercise of the powers vested in it under section 540-A of the Code. In the face of these patent facts obvious on the very surface of the record it cannot be seriously contended that the trial Bench had not satisfied itself that the appellant “ was ‘ incapable of remaining before the Court within the meanings of section 540-A of the Code on 15-11-1977 before deciding proceed on wit the case in the absence of the appellant on account of his illness. The course adopted was thus fully justified in the facts and circumstances of the situation which bad arisen owing to the illness of the appellant.
229. As to the failure to record reasons it cannot be denied that in the impugned order there are no reasons at all recorded for dispensing with the personal attendance of the appellant at the hearing of the case.
OMISSION TO RECORD REASONS NOT MATERIAL, IF REQUIREMENTS
OF SLCTION OTHERWISE SATISFIED
230. But the basic requirement that matters is the satisfaction of the Judge or the Magistrate. It is an indispensable condition for the Judge or Magistrate that he must be satisfied about it before dispensing with the presence of the accused. The further requirement of the section for the recording of reasons for such satisfaction relates only to the form of the order, and is procedural only. Any such failure or omission in this behalf a by itself is not sufficient to adversely affect the substance and merits of the order, provided the other requirements of the section have been complied with. The law recognises a distinction between the elements or ingredients which are essential for the foundation of jurisdiction and the mode in which such jurisdiction is exercised.
231. Such a view was taken as to the identical provisions in section 540-A of the Indian Procedure Code in Mrityunjoy Chatterji and others v. The State (A I R 1955 Cal. 439). In that case one of the five accused, by name Pulin Mondal, fell ill, and the Court then passed a brief order saying : “Let the trial proceed with the four accused persons,” and the prosecution evidence was recorded in the absence of Pulin Mondal. The High Court set aside the conviction of Pulin Mondal as he was not represented by counsel in his absence, but it refused to interfere with the conviction of three others, observing that mere failure to pass an express order in terms of the second part of the section, separating the trial of the remaining accused from that of Pulin Mondal, did not vitiate the trial of the remaining three accessed and the defect, if any, was curable, as thereby no prejudice had been caused to them in their trial. In coming to these conclusions the High Court observed as under;
“Granting that there would be such contravention but for any appropriate statutory exception, it is quite clear that such exception would be furnished by the second part of section 540-A of the Code which empowers the Magistrate to order separate trial of the absent accused in such a case. There can be no question that this provision would have been applicable in this case and the actual proceeding with the trial of the other accused and the taking of evidence in the absence of Pulin would have been perfectly legal and quite regular, if only the learned trying Magistrate had made an order under this second part of section 540-A of the Code, directing a separate trial in the case of Pulin.
This however, he failed pr omitted to do and the defect, if any, in the trial of these co-accused really arose from this failure or omission.
It was thus, at the worst, an illegality which did not go to the root of the trying Magistrate’s jurisdiction to hold the trial. Such a trial is not absolutely prohibited by the Code but would have been perfectly legal, only if the learned trying Magistrate had availed of the enabling provision of section 540-A, second part, and exercised the relevant powers under that provision. It was thus curable under section 537 of the Code if, of course, no prejudice had been caused to the accused concerned on account of it.”
In the opinion of the Court their trial was conducted-to use the language of the Judicial Committee in the case of Pulukuri Kottaya v. Emperor (AIR 1947 P C 67) “substantially in the manner prescribed by the Code”, though, “in the course of such conduct” the irregularity committed by the trying Magistrate in his failure or omission to pass an order under the second part of section 540-A was curable.
232. The observations of this Court in Muhammad Ishague v. Nur Mahal Begum and others (P L D 1961 S C 426), are highly pertinent, and are of general application, although in that case they were made in connection with the requirements of section 145, Criminal Procedure Code. Subsection (1) of that section, which expressly lays down that whenever the Magistrate taking cognizance is “satisfied” from a police report or other information that a dispute likely to cause a breach of peace exists concerning any land, water or boundaries thereof, within the local limits of the jurisdiction, he “shall make an order in writing”, stating “the grounds of his being so satisfied” and requiring the parties to attend the Court in person, or by pleader. But contrary to these requirements the trying Magistrate in that case did not state the reasons upon which he had passed the preliminary order under section 145 (1) of the Code. In that connection this Court observed that : -
“it is necessary, according to the tenor of the section, that before an order thereunder can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied he shall make an order in writing `stating the grounds of his being so satisfied’. This statutory provision, therefore, does prescribe the mode for the exercise of the jurisdiction conferred by it and there can be no doubt the Magistrates exercising the said jurisdiction are expected to comply strictly with the said provisions of law. But to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is, in our opinion, too wide a proposition. In our view, there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of Criminal Procedure Code are that the Magistrate must be satisfied :-
(a) that a dispute likely to cause a breach of the peace exists,
(b) that the dispute refers to land or water or the boundaries thereof, and
(c) that such land or water is situated within the limits of his territorial jurisdiction.
If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied, in the initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non-compliance with a rule of procedure generally is not illegality vitiating the entire proceedings.
233. In that case this Court further observed that in such cases the important thing is to see whether there was material on the record upon which the satisfaction of the Magistrate could be at all grounded. If there exists material, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been a substantial compliance with the requirements of the said subsection and the defect is merely a technical defect. This case was followed with approval by this Court in Shahzada and others v. Malik Shams-ud-Din and others (P L D 1977 S C 237).
234. In another case in Deputy Legal Remembrancer v. Banu Singh and others (P L D 1977 S C 237) the facts were that in granting a pardon to one Mohendra Bid approver the Magistrate recorded a short note to the effect that the pardon was tendered to him and he did not record any reasons for doing so contrary to the mandatory requirements of section 337, Cr. P. C. In that connection the Court observed that the circumstances which preceded the grant of the pardon were such that the Magistrate may very properly can be said to have considered that they in themselves afforded sufficient reasons for the action without his recording any further reasons of his own. The Court observed:---
“Taking however his first point, viz., that the evidence of the approver is inadmissible because the pardon had not been tendered by the committing Magistrate in strict compliance with law, we are unable to agree in the opinion which he has expressed. The Magistrate who enquired into the case, has, it is true, recorded only a short note at the top of the deposition of Mohendra Bid to the effect that the pardon was tendered to him and that he understood and accepted the conditions. The Additional Sessions Judge has held that this is not a sufficient compliance with the law which requires that a Magistrate who tenders a pardon under section 337, Criminal Procedure Code, shall record his reasons for so doing, In this case, however, we are not prepared to hold that the omission, though it may be regarded as an irregularity, if indeed it can be placed so high, amounted to an illegality. The circumstances which preceded the grant of the pardon were such that the Magistrate may very properly have considered that they in themselves afforded sufficient reasons for his action without his recording any further reasons of his own.
Section 337(1) of the Code allows for the tender of pardon to an accomplice. In this connection subsection (1-A) of this section, lays down that every Magistrate who, tenders a pardon under subsection (1) “shall record reasons for so doing” In Emperor v. Shama Charan and others (151 C 1004) the Allahabad High Court held that this recording of reasons under this subsection is merely a matter relating to procedure and is not a condition precedent to the tender of pardon. In Bawa Faqir Singh v. Emperor (A I R 1938 P C 266) the Privy Council observed that this omission to record the reasons amounts only to an irregularity. Also in Rafiq Ahmad v. The State (3) it was held that the omission to record reasons for tendering pardon is a curable irregularity.
235. Similarly section 208 of the Code expressly lays down that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant on oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate. But in that connection in Shamins v. The State and another (4) this Court has held that the language of this section does not lead to the inevitable inference that the examination of a complainant is a “sine qua crone” of valid proceedings, in all circumstances. There is no provision it’ the Code to the effect that a failure to follow the provisions of section ^ 00 in respect of examination of the complainant entails invalidation of the proceedings taken and the irregularity is curable under section 537 of the Code.
236. Here, at this stage it is not necessary to advert at any length to section 537, Cr. P. C., as this section has been discussed in greater detail elsewhere in this judgment; and it has been held that in determining whether an omission, error or irregularity, in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, the Court must look to the substance and not to technicalities ; and if the accused has had a fair trial, and has not been prejudiced in his defence, then the error, omission or irregularity would stand cured under the provisions of section 537 of the Code.
237. For this reason also, any infringement in the technical compliant with the provisions contained in section 540-A of the Code by the learned trial Bench in this case, in its omission to record the reason in the order dispensing with the personal attendance of Zulfiqar Ali Bhutto appellant, amounts to a mere irregularity curable under section 531 of the Code. As already stated, the error related merely to the form rather than the substance of the order passed by the Court, which was pre-eminently justified on the facts.
238. However, the learned counsel for Zulfiqar Ali Bhutto placed strong reliance on the case of the Lahore High Court reported as Pokhar Dots Ganga Ram v. Emperor (5), to contend that the omission was not curable. In that case in all eight accused persons including one Khem Chand, were tried together for offences under sections 302 and 307, I. P. C. The trial took place in the absence of them Chand who was ill at its commencement. A few days before the trial was due to commence the learned Judge summoned Khem Chand at Matwali and in the presence of the Public Prosecutor, Khem Chand and his counsel, but in the absence of the other accused, made an order dispensing with the attendance of Khem Chand at the trial. The trial afterwards proceeded in the presence of all the accused except-,Khem Chand, who was represented by a counsel. The trial Court eventually convicted seven out of the eight accused, including Khem Chand. In appeal their learned counsel raised an objection to the validity of the trial, on the ground that the power to dispense with the presence of an accused person is defined in section 540-A of the Code, that the learned Judge had not complied with the provisions of the section, which required the presence of all the accused “before the Court” as a condition precedent to an order dispensing with the attendance of one of them during the further proceedings ; and that the trial of the accused should have already commenced before any order of dispensation could be passed. In reply, the learned Advocate-General, stated that although it might be argued that even the trial of Khem Chand was good, yet “for the purpose of argument” he conceded that the trial so far as he was concerned was bad. In spite of this the Court held as under :--
“We ourselves have not been able to discover any ground for holding the trial of Khem Chand good. Normally, a trial in the absence of the accused is a nullity and it is only by virtue of section 540-A that this consequence of the absence of the accused can be avoided; if the requirements of the section are not fulfilled, the trial remains a nullity. The learned Advocate-General sought to ignore the fact that Khem Chand had been tried with his co-accused and argued that the trial should be treated as the trial of the other seven accused, the inclusion of Khem Chand being ignored ; that the trial of each accused was a separate trial, and that eight trials were actually conducted at the same time. No authority for any such view of a joint trial was cited to us.
In the absence of such authority, we are constrained to hold that a joint trial is a single trial and cannot be considered as a separate trial of each person accused ; it is one and indivisible. It follows, we think, that an illegality which vitiates the trial so far as one of the accused is concerned, prevents the trial from holding good in respect of the remaining accused. We have therefore no option but to hold the trial bad, and order the appellants to be retried by the Sessions Judge Mianwali.”
239. However, this case was dissented from in Morityunjoy Chatterjee and others v. The State by the Calcutta High Court, which was of the opinion that a defect of the kind was curable under section 537 of the Code, and observed as under :-
“I do not, therefore, agree with
the broad proposition, laid down in the
240. I am inclined to agree with these observations. Not only in the Lahore judgment the proposition laid down is too wide to be reconcilable with the later decision by the Privy Council in Pulukurl Kottaya v. King Emperor (AIR 1947 P C 67) on the true interpretation of section 537 of the Code, it is rendered all the mare untenable after the amendment introduced in section 537 of-the Code in Pakistan by the Law Reforms Ordinance, whereby within its scope and purview any error, omission or irregularity in the impugned order or even in the mode of trial is curable, provided it has not occasioned any failure of justice.
241. Before us the learned counsel for the Defence in his final reply relied on Thakur Singh and others v. Emperor (A I R 1927 Lah. 781), Began Singh v. King Emperor (A I R 1928 Pat. 143) and Sukhanraj v. State (A I R 1967 Raj. 267) to contend that the illegalities in the compliance of the provisions contained in section 353, Cr. P. C. are not curable under section 537, and are sufficient to vitiate the trial. In the first mentioned case three persons were prosecuted and tried for murder of two persons in two trials. The defence evidence given by the accused in the first trial was, with consent, treated as evidence in the second case. The Court held that defence evidence in the second trial was not recorded in accordance with the requirements of section 353 in the presence of the accused and that the irregularity vitiated the trial. In the second case also the facts were almost similar. The evidence recorded in one case was treated as evidence in the other case as well. The Court held that the mandatory requirement of section 353, Cr. P. C. is that the evidence must be taken down in the presence of the accused. A contravention of this express provision goes to the root of the case and was held to be sufficient to vitiate the trial. Also in the third mentioned case the recording of the copies of statements of witnesses in one case as evidence in another case without examining the witness was held to be illegal, sufficient to vitiate the trial and the irregularity was not curable under section 537 of the Code. Similarly in Blshnath and others v. Emperor (A I R 1935 CDudh 488) the Court observed that in criminal trials, all evidence should be recorded in the presence of the accused and any breach of the rule vitiates the trial altogether. All these cases cited on behalf of the appellant are clearly distinguishable, as the illegality committed at the trial in these cases related to the jurisdiction of the Court inasmuch as section 353 is mandatory and it expressly lays down that with certain exceptions the evidence of witnesses shall be taken in the presence of the accused. In these cases no exception of the kind embodied in section 540-A was apparently found to be available.
242. Mr. Yahya Bakbtiar also referred to Emperor v. Sukh Dev and others (A I R 1929 Lah. 705), which is not a case under section 537, Cr. P. C. In that case a Magistrate conducted an inquiry in the absence of an accused by appointing a counsel for him at State expense, and an application was made in that behalf in the High Court. But the High Court dismissed the application as in its opinion no Court had any authority to force upon a prisoner the services of a counsel, if he was unwilling to accept them. If at all, this case goes against the appellant inasmuch as it proceeds on the basis that under section 540-A the attendance of an accused can be dispensed with against his wishes provided he is represented by his pleader. All these cases are therefore of no assistance to the defence.
243. It may be stated here that at an early stage of the commencement of the trial, at the request of the learned defence counsel, it was arranged with the prosecution, that the names and particulars of the witnesses to be produced on a certain day, used to be supplied to him in advance. This was done during the course of the whole trial. Zulfiqar Ali Bhutto accused admitted in his statement, recorded on 28-1-1978, under section 342, Cr. P. C. that “lists of prosecution witnesses are given in advance” (Vol. III p. 749). The trial Court has also referred to it in para. 20(i) of its order dated 9-1-1978 (Order-Sheets, p. 124). His learned counsel also used to receive instructions from him daily as admitted by Zulfiqar Ali Bhutto appellant in his application dated 18-12-1977/5-1-1978 that Mr. D, M. Awan sought instructions from him daily by going to the Kot Lakhpat Jail (Volume of Applications, p. 137). In accordance with this practice the names o prosecution witnesses, whose statements were to be recorded on a certain day, were in fact intimated in advance to the defence counsel who was all along allowed the opportunity to see the appellant in jail and receive daily instructions from him for cross-examination of the prosecution witnesses examined in his absence from 16-11-1977 to 30-11-1917 and on 14-12-1977. The statement of these witnesses recorded under sections 161 and 164, Cr. P. C. had also been supplied to the appellant in advance about the version of the prosecution case about which they were expected to depose. As it is the appellant was all along represented in Court by a team of lawyers in his absence due to illness. They were allowed ample opportunity to see him in jail and to receive day to day instructions required by them for the cross-examination of each individual witness produced by the prosecution. In Court they were allowed full opportunity to cross-examine the prosecution witnesses. On the whole these witnesses were in fact subjected to lengthy and searching cross-examination by his learned counsel at the trial in his absence.
244. It does not appear that in the course of the examination of the prosecution witnesses in question the learned counsel for the appellant had actually experienced any difficulty or was in fact handicapped conducting the cross-examination on them in the absence of his client. At least none was in fact brought to the notice of the Court in the course of the cross-1examination of the witnesses or even afterwards, after the appellant had put in appearance after he had recovered from his illness. Indeed he could have applied to the trial Court at the earliest for the recall of any of the witnesses examined in the absence for further cross-examination if he was not in fact satisfied with it. Even in this Court in appeal at the hearing before us neither the appellant nor his learned counsel, but for the general and vague allegations, was able to show and demonstrate to our satisfaction that the cross-examination actually conducted on the witnesses in his absence was lacking in any material respect and that thereby he was in fact prejudiced and adversely affected or handicapped in his defence. In this connection it will not be out of place to mention here that in the course of the hearing of this appeal a Miscellaneous Application No. 7 of 1978 was filed before us on behalf of the appellant praying for the recall of Mr. W. R. Welch P. W. 4 only, out of the number of witnesses who had been thus examined in the absence of the appellant on account of his illness. In relation to this witness also all that is alleged in the application was that be is a Catholic Christian, but he gave his evidence before the trial Bench on solemn affirmation instead of on Bible as prescribed for Christians to avoid telling the truth, and that owing to the absence of the appellant he could not be cross- examined properly and effectively. This application was dismissed by u. on 23-12-1978 and the detailed reasons for it are set out in another par of this judgment. Suffice it to mention that it appears that this precise plea taken in the application was now raised only as an afterthought. Otherwise, even the statement of this witness under section 164, Cr. P. C. (of which an advance copy had already been supplied to the accused) was recorded on solemn affirmation and not on the Bible and about it the appellant was, therefore, fully aware. In fact in this Court during the course of the arguments addressed to us on behalf of the appellant it was even suggested that the witness had already embraced Islam merely for the sake of marrying a Muslim lady for whom he had a fancy. Be that as it may, there is no explanation ‘before us whatever, as to why this precise objection was not promptly raised before the trial Court, immediately after the appellant had appeared in Court after his recovery from the illness.
245. The explanation to section 537, Cr. P. C. expressly lays down that in determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. As discussed above after the appellant had recovered from his ailments and appeared in Court, he never applied to the Court and raised any such timely objection that his counsel was in fact handicapped and that the cross-examination of the prosecution witnesses actually conducted was not to his complete satisfaction and had remained inconclusive or was wanting in any material respect and for the timely rectification of the wrong, if any, thus done to him.
246. In these circumstances, the proceedings of the High Court held on different dates in the absence of appellant Zulflqar Ali Bhutto because of his illness were fully covered by the provisions of section 540-A of the Code. He was all the time represented by a team of lawyers who fully had effectively ‘a participated in the proceedings on these days, and conducted lengthy cross examination after obtaining daily instructions from the appellant. I am, therefore, of the opinion that no prejudice was caused to the appellant by the decision of the High Court to dispense ‘with his presence on the dates in question, and to continue with the case in the pre3ence of his lawyers. No objection as to inadequacy of instructions, or insufficiency of cross-examination of the relevant witnesses was taken by the appellant after he rejoined the proceedings on recovering from his illness on both the occasions. For all these reasons the omission of the High Court to record its reasons, as required by section 540-A was a mere technical omission, not touching the substance of the matter, and, therefore, fully curable under section 537, Cr. P. C.
THE “DAMN IT” INCIDENT ON 17-12-1977 DURING THE TRIAL
247. I am now left to deal with the unfortunate incident that took place in Court on 17-12-1977. Its facts in detail have already been stated. At this place it is enough to recall that as his counsel, Mr. D. M. Awan, was addressing the Court, appellant Zulfiqar Ali Bhutto while trying to draw his attention uttered the words “damn it”. The Court told the) appellant not to use such words, but he insisted that it was not a bad word’. The Court then asked his learned counsel, Mr. D. M. Awan to resume hiss submission. On this the appellant uttered the words : “I have had enough”. The Court then asked him enough of what and he replied : “of humiliation and insult”. According to the Court, in view of this persistent unruly behaviour he was asked to be taken out of the Court. After he was taken out, Mr. D. M. Awan was asked to meet his client during the recess and to request him to help keep the dignity and decorum of the Court and not to adopt an unruly attitude, for otherwise he would be liable under the law and the Jail Manual. After the recess Mr. D. M. Awan informed the Court that be had talked to the appellant but the latter had told him the he knew the law and the Jail Manual. On this the Court passed an order that in view of his persistent attitude and because of his own admittedly disturbed state of mind, the appellant was incapable of remaining in Court for the day and therefore, his presence for the rest of the day was dispensed with.
248. In the absence of the appellant on 17-12-1977, Mr. Irshad Ahmad Qureshi, learned counsel for the three confessing accused, conducted his cross-examination of P. W. 31 Ghulam Hussain approver. The Court then observed that P. W. Ghulam Hussain was an important witness and it would be proper that he should be cross-examined by Mr. D. M. Awan in the presence of the appellant. The Court, accordingly adjourned the hearing to 18-12-1977, when the appellant put in his appearance along with his counsel to proceed with the cross-examination of the witnesses.
249. It is, indeed, deplorable that such a situation should have developed in the face of the trial Beach. It no doubt appears that at the time the appellant was in a disturbed state of mind on having learnt in Court about the head injury unfortunately received by his wife. This must have come to him as a shock, and one cannot help sympathizing with him, but I am constrained to observe that even then he was expected to maintain the decorum of the Court, which he failed to do. He persisted in his discourteous behaviour, and gratuitously observed that he had had enough of humiliation and insults. Even after having been given time for reflection he refused to make amends. He remained adamant and was not willing to extend the assurance wanted by the Court that he would help keep the dignity and r” decorum of the Court, and not adopt an unruly attitude.
250. I have already stated earlier that the word “incapable” as use in section 540-A of the Code has reference to the physical, mental or moral state of the accused which makes him unable or unfit to remain in Court and perform his obligations ant duties at the hearing of the case against him. From the facts analysed in the preceding paragraph, it is abundantly clear that on this particular day the appellant was incapable of remaining before the Court due to his disturbed mental state. This was fully brought out by his refusal to make amends even after having time for reflection. His case, therefore, fell squarely within the ambit of section 540-Ai of the Code.
251. Public trial means an orderly trial and not a disorderly one. Therefore, while an accused has a right to be present at his trial, he is at the same time under a corresponding duty to help keep the decorum and dignity h of the Court by his good behaviour, In Re : Robert Edward Wenvard Jones ((1972) 56 Cr. App. Rep. 413) it was laid down that whether a defendant be on bail or in custody, and whether he be represented by counsel or not, he has a right to be present at his trial, unless he abuses that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour, in which case the Judge may have him removed and may proceed with the trial in his absence, or may discharge the jury. In the State v. Ananta Singh and others (1972 Cr. L J 1327) a Division Bench of the Calcutta High Court has held that a direction to expel from the Court-room an obstreperous accused who renders a fair trial impossible by his misbehaviour and to exclude him from his own trial comes within the sanction under section 561-A and would not be inconsistent into any provision of the Code including sections 353 and 540-A and the Court can proceed with the trial of the expelled accused by recording evidence in his absence, but accused can reclaim his right to be present at the trial on his expressing bona fide willingness to behave properly. These cases fully support the conclusion reached by me.
252. In conclusion, I might also mention that although on that date in the absence of the appellant from the Court, Mr. Irshad Ahmad Qureshi, learned counsel for the confessing accused, concluded his cross-examination of approver Ghulam Hussain, when learned counsel for appellant Zulfiqar Ali Bhutto was present in Court, yet the Court suo motu postponed the crossexamination of this important witness by appellant Zulfiqar Ali Bhutto’s counsel to the next day, when the appellant rejoined the proceedings. In these circumstances it does not appear that any prejudice whatsoever was at all caused to the appellant by the cross-examination of Ghulam Hussain conducted by the learned counsel for the co-accused in his absence on 17-12-1977. This part of the objection also, therefore, fails.
Non-Supply of copies of Police Statements of certain witnesses of the Defence
253. Inow come to the question of the effect of the failure of the prosecution to supply to the accused copies of the statements of Masood Mahmood (P. W. 2.1, Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34), recorded by the police during the investigation of the case.
254. It appears that Masood Mahmood (P. W. 2) and Ghulam Hussain (P. W. 31) were initially joined as accused and were interrogated as such, the former by Abdul Khaliq (P. W. 41), and the latter by Muhammad Boota (P. W. 39), and the substance of their statements was incorporated in the case diaries of 23-8-1977 and 27-7-1977 respectively. Admittedly copies of these statements were not supplied to the defence. Similarly, a short statement of Abdul Hayee Niazi (P. W. 34), who originally investigated the case in 1974, was also recorded during the investigation by Muhammad Boota (P. W. 39), on 5-8-1977, which too was incorporated in the case diaries and also not supplied to the defence. The reason given for not supplying the copies of their statements to the accused is that these statements were not recorded under section 161, Cr. P. C., but were received in the case diaries under section 172, Cr. P. C. and, therefore, the prosecution was not obliged to supply their copies, unless the accused had themselves asked for them.
225. The case of the appellant is that these statements were reduced into writing and were in reality statements under section 161, Cr. P. C. even though they were incorporated in the diary, instead of being kept separate. Thus notwithstanding the fact that these statements were embodied in the case diaries they were not distinguishable from the statements recorded under section 161, Cr. P. C. and ought, therefore, to have been supplied to the defence along with the statements of all other witnesses recorded under section 161, Cr. P. C., seven days before the commencement of the trial, under the provisions of the newly-added section 265-C, Cr. P. C. even without any specific demand for them in this behalf. And as this was not done, the evidence of Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34) given at the trial was liable to be excluded and could not be taken into account. In support of this contention reliance was placed on Faiz Ahmad v. State (P L D 1960 S C 8) and Muhammad Ashraf v. State (A I R 1928 Lah. 257). In both these cases the evidence of the witness, a copy of whose statement made before the Police was not supplied to the defence, was excluded from consideration.
256. We find that the learned Judge in the High Court who decided Muhammad Ashraf’s case has purported only to follow the ratio in Faiz Ahmad’s case. The said case, therefore, requires to be considered in some detail. In that case the Investigating Officer had incorporated the substance of the statement made by the approver in the course of the investigation in the police diary. At the trial when counsel for the appellant asked for a copy of the statement of the approver made by him during the investigation he was told that no such statement had been recorded by the police under section 161 of the Cr. P. C. The appellant was convicted of murder on the basis of the testimony of the approver and the circumstantial evidence in the case. He appealed to the High Court and contended that since the record of the statement of the approver to the police had been prepared during the investigation, the refusal to supply a copy of the statement for the purposes of cross-examining him vitiated the trial. A copy of the approver’s statement was offered to the appellant’s counsel during the bearing of the appeal, but was refined. The substance of this statement was then read out to the counsel and, following the precedent in Hazara Singh’s case (P L D 1968 Lah. 694), the High Court informed the counsel of the appellant that any contradiction between the approver’s statement to the police and the evidence given by him in Court could be taken as having remained unexplained. The High Court discovered two such contradictions, but instead of treating them as unexplained, proceeded to find an explanation for both and maintained the conviction. The Supreme Court examined the question whether the procedure adopted by the High Court was in conformity with law and held that having assured the counsel for the appellant that any contradiction between the statement of the approver to the Police and his evidence in Court would be treated as unexplained, it had contravened the assurance by discovering an explanation for the contradictions found. It was, however, further observed that the procedure suggested in Hazara Singh,’s case was not quite in accordance with the principles enunciated by the Privy Council in Pulukuri Kotayya v. King-Emperor (741 A 65) inasmuch as the mechanical mode of treating contradictions as unexplained could not be expected to produce the same result as actual cross-examination of those contradictions, which might completely break down the witness.
257. The Supreme Court then went on to discuss the possible courses which the High Court could adopt in such circumstances. The High Court could, it was observed, either order a retrial ; or, if the irregularity was found to have occasioned a failure of justice, recall the approver, supply a copy of his statement to the defence counsel and direct him to cross-examine the approver. It could also exclude the evidence of the approver from consideration, and this was the course adopted in that case by the Supreme Court itself ; but in spite of doing so the appeal was dismissed on the ground that the conviction of the appellant could be maintained even after excluding the evidence of the approver on the circumstantial evidence. It was, however, at the same time observed that a re-trial or exclusion of a witness’s testimony was not the necessary result of the refusal to supply the copy of the police statement of the witness to the accused, as the irregularity contemplated was within the kind of irregularities mentioned in section 537, Cr. P. C. This statement was clarified by observing that where no copy was, ever supplied at the trial and the contents ref the statement were never disclosed to the accused, the irregularity might be to strong point in appeal against conviction and raise an irresistible interference of prejudice, through the interference was not irrebuttable; and where a copy was applied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused was unable to suggest that cross-examination of the witness as to the alleged omission or contradiction might have led to the breakdown of the witness or a material part of his testimony, the Court could not set aside the conviction. In this connection the observations of the Privy Council in Pulukuri Kotayya v. King-Emperor were also taken note of.
258. - The above analysis of Faiz Ahmad’s case reveals that the failure by the prosecution to supply a copy of the statement of a witness made,., before the police does not necessarily imply that the Court should exclude H the evidence of such witnesses. In fact, according to the said judgment, it is open to the Court to follow any of the following courses;
(a) Order a re-trial if it finds that the irregularity has occasioned a failure of justice.
(b) Exclude the testimony given by the witness at the trial.
(c) Recall the witness, supply a copy of his statement to the defence counsel and direct him to cross-examine him.
(d) Apprise the defence counsel of the contents of the statement and supply a copy of it to him and if he is unable to suggest that the cross-examination of the witness, as to an alleged omission or contradiction in the statement, might lead to a breakdown of the witness or a material part of his testimony, ignore the irregularity in not supplying a copy of the statement to the accused at the trial on the principle that the irregularity not having prejudiced the accused or occasioned any failure of justice is of the kind of irregularities mentioned in section 537, Cr. P. C.
259. In Muhammad Ashraf’s case a learned Single Judge of the Lahore High Court, relying on one observation in Faiz Ahmad’s case, vie. “where no copy was ever supplied at the trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an irresistible inference of prejudice”, excluded from consideration the evidence of the witness whose statement made before the police was not supplied to the defence. But this decision purporting as it does to follow Faiz Ahmad’s case does not. carry the matter any further. However, on the basis of the above judgments it is contended on behalf of the appellants that the evidence of Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34) should be excluded from consideration.
260. Mr. Ejaz Hussain Batalvi has submitted a two-fold reply : Firstly, that statements of the witnesses in question were embodied in the case diaries maintained under section 172, Cr. P. C. by the Investigating Officers and these statements were not synonymous with the statements required to be separately recorded under section 161, Cr. P. C., and consequently the prosecution was not obliged to supply the copies of these statements to the accused under section 265-C, Cr. P. C. And, secondly, even if it was obligatory to supply the copies of the said statements, no prejudice, as a matter of fact, has been caused to the accused by not supplying the statements in question.
261. In order to properly appreciate the legal position the relevant portions of the pro-visions of sections 161, 162, 172, 265-C and 537, Cr. P. C. and section 145 of the Evidence Act are reproduced below;
“(a) Section 161, Cr. P. C. provides :
(1) Any Police Officer making an investigation under this Chapter ............ may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2)-------------------------
(3) The Police Officer may reduce into writing arty statement made to him in the course of an examination, under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records.
(b) Section 162, Cr. P. C. .Statements to Police not to be signed-Use of such statements in evidence..-(1) No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such state meat was made;
Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act.
(2)------------------
(c) Section 172, Cr. P. C. Diary of proceedings in Investigation.--(1) Every Police Officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court ; put, if they are used by the Police Officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such Police Officer, the provisions of the Evidence Act, 1872, section 161 or section 145, as the case may be, shall apply.
(3) Section 145 of the Evidence Act. Cross-examination as to previous statement in writing;----A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
(e) 265, C, Cr. P. C. Supply of statements and documents to the accused.-
(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:
(a) ...........................
(b) ...........................
(c) the statements of all witnesses recorded under sections 161 and 164.”
262. The first question, therefore, that arises is whether the statements of Masood Mahmood (P. W. 2), Ghulam Hussain (P. W. 31) and Abdul Hayee Niazi (P. W. 34) which were embodied in the case diaries can be treated as statements under section 161, Cr. P. C., which the prosecution was bound to supply to the defence, even without their asking for them.
263. On the question whether the statements recorded in the case diaries by the police could not be construed as statements recorded under section 161, Cr. P. C., the history of legislation in relation to section 162, Cr. P. C. would be useful. The Code of Criminal Procedure was enforced in the sub-continent for the first time in 1861. It was substituted by the Code of Criminal Procedure of 1872. The relevant sections 145 and 147 of the Code of 1861 were substantially refrained as sections 119 and 121 in the Code of 1872. The relevant provisions of these two sections were as under;
“119 ----------No statement so reduced into writing shall be signed by the person making it, nor shall it be treated as part of the record or used as evidence.
121. No Police Officer shall record any statement or any admission or confession of guilt, which may be made before him by a person accused of any offence Provided that nothing in this section precludes a Police Officer from reducing any such statement or admission or confession into writing for his own information or guidance, or from giving evidence of any dying declaration.”
264. The Code of 1872 was repealed and substituted by the Code of 1882. In this Code, the subject-matter of the aforementioned sections 119 and 121 of the Code of 1872 were consolidated in one section bearing No. 162, which reads as under:- ---
“162. No statement, other than a dying declaration, made by any person to a Police Officer in the course of an investigation under this Chapter, shall if reduced to writing, be signed by the person making it or be used as evidence against the accused.”
Section 145 of the Evidence Act had provided for the confrontation of a witness with his previous statement.
265. The language of section 162 of the Code of 1882 was so interpreted as to allow an accused person to see the statement of a person appearing as a witness for the persecution and recorded by the Police Officer during the course of the investigation for the purpose of confrontation under section 145 of the Evidence Act, but he was not entitled to see the statement of a witness appearing in the case diary maintained under section 172, Cr. P. C. and not separately prepared under section 161 of the Code of Criminal Procedure. A question arose before the Allahabad High Court in Queen v. Mannu (I L R 19 All. 390) whether statements of prosecution witnesses could be seen by the accused when they were incorporated in the case diary.
266. The case was heard by a Full Bench of six Judges. Four learned Judges were of the opinion that the statements recorded under section 172 were privileged and could not be seen by the accused or his agent, while the remaining two Judges were of the contrary view. While explaining the majority view, the learned Chief Justice Mr. Justice Edge observed as follows:----
“There is no provision in section 172 of the Code of Criminal Procedure, enabling the Court, the prosecution or the accused to use the special diary for the purpose of contradicting any witness other than the Police Officer who made it, and the necessary implication is that the special diary cannot be used to contradict any witness other than the Police Officer who made it. Section 145 ‘of the Indian Evidence Act, 1872, does not either extend or control the provisions of section 172 of the Code of Criminal Procedure. It is only if the Court uses the special diary for the purpose of contradicting the Police Officer who made it that section 145 of the Indian Evidence Act, 1872, applies, and in such case it applies for that purpose only, and not for the purpose of enabling the Court or a party to contradict any other witness in the case, or to show it or part of its contents to any other witness . . . . It is not enacted in section 172 of the Code of Criminal Procedure by reference to section 145 of the Indian Evidence Act, 1872, or otherwise that if the special diary is used by the Court to contradict the Police Officer who made it, it may thereupon or thereafter be used to contradict any other witness in the case.”
267. It was further observed :--
“Neither the accused nor his agent is entitled under section 172 of the Code of Criminal Procedure to see the special diary for any purpose unless it has been used by the Court for enabling the Police Officer who made it to refresh his memory or for the purpose of contradicting him-------In my opinion the plain meaning of section 172 is that the special diary, no matter what it may contain, is absolutely privileged, unless it is used to enable the Police Officer who made it to refresh his memory or is used for the purpose of contradicting him--------It is a privilege which cannot depend upon the question as to whether the Police Officer who made the special diary did or did not insert in the special diary extraneous matter, nor can it depend upon the question as to whether or not the Police Officer made the special diary in the particular form which is approved by the Court.” .
268. The two Judges, who were in a minority, took the view that statements under section 161 reduced into writing could not be withheld from the accused only because instead of being kept separate they were incorporated in the diary. However, the majority judgment which prevailed was that if a statement of a witness was recorded in the diary it acquired privilege conferred by section 172 of the Code of Criminal Procedure, and. could be used only for the limited purpose specified therein and it could not be seen by the accused or his agent.
269. The Code of Criminal Procedure 1882 was repealed and was substituted by the Code of Criminal Procedure of 1893 ( Act V of 1898), which received the assent of the Governor-General on the 22nd March, 1898.
270. Section 162 of the Code of 1882 was reframed in the Code of 1898 and read as under:-
“162.-(1) No statement made by any person: to a Police Officer in the course of an investigation under this Chapter shall, if taken down in writing, he signed by the person making it, nor shall such writing be used as evidence:
Provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof; and such statement may be used to impeach the credit of such witness in the manner provided by the Indian Evidence Act, 1872.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Indian Evidence Act, 1872.”
271. It may be pointed out that judicial divergence continued to prevail as to the use which could be made of notes recorded in police diaries of statements made by witnesses to Investigating Officers. In a series of cases, namely, Bikao Khan v. The Queen-Empress (I L R 16 Cal. 610) Sheru Sha and others v. The Queen-Empress (I L R 20 Cal. 643) and Dadan Gazi v. Emperor (I L R 33 Cal. 1023) it was held by the Calcutta High Court that the statements of witnesses taken by a Police Officer under section 161, Cr. P. C. were not a legitimate portion of the diary and were not, therefore, privileged and that the accused had a right to call for and inspect them; that their incorporation in a police diary was an evasion of the law, intended to deprive be accused of such right.
272. The Legislature, therefore, further amended subsection (1) of section 162 as incorporated in the 1898 Code by the Code of Criminal Procedure (Amendment) Act of 1923 (Act XVIII). It reads thus:-
“162.-(l) No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof; whether in a police Diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;
Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof, art order that Pry part of such a statement, if duly proved, may be
Use to contradict such witness in the manner provided by section 145 of the Indian Evidence Act 1872. When any part of such statement is so used, any part thereof may also be used to the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
Provided further---------------
273. As a result of the amendment carried out in 1923, statements recorded in the Police Diaries were expressly included in subsection (1) of section 162 and if any statement of a witness was recorded in a police diary under section 172,- Cr. P. C. the police could not claim privilege. Thus whatever opinion might be held as to whether a diary is a proper place for statements, the police cannot by entering the statements in the case diaries under section 172, Cr. P. C. protect them from the provisions of section 162, and thus were liable to be produced under conditions laid down in the latter section i.e. inter alia the supply of the copies was made subject to the accused asking for them at the time when the witness is called by the prosecution.
274. This was the state of the law in 1972 when section 265-C was added in the Code of Criminal Procedure through the Law Reforms Ordinance, 1972.
275. The submission of Mr. Batalvi was that even though the newly-added section 265-C, Cr. P. C. casts an obligation upon the prosecution to supply copies of the statements separately recorded under section 161, Cr. P. C., the law regarding the statements incorporated in the Police Diary remains unaltered, that is, that the accused must ask for them, as laid down by section 162 itself, and if the accused does not ask for them, the prosecution, even under the amended law, is not obliged to supply them to the accused.
276. Section 265-C, Cr. P. C. bas brought significant changes in the law consequent upon the abolition of commitment proceedings in the trial of serious offences. For instance, in all cases instituted upon a police report; copies of statements under section 161, Cr. P. C. shall be supplied free of cost to the accused, not later than seven days before the commencement of the trial. This provision impliedly repeals the provisions of section 162, Cr. P. C. to the extent that copies of the statements must now be supplied ray the State seven days before the commencement of the trial, and it is not necessary to wait till the witness is called by the prosecution, or the accused asks fur them. The question, therefore, only is whether, as contended for by Mr. Batalvi, this obligation extends to supplying copies of the statements separately recorded under section 161, Cr. P. C. and not to statements recorded in the police diaries, which the accused must ask for as hithertofore, in accordance with the provisions of section 162, Cr. P. C.?
277. It is to be noted that under the provisions of section 161, Cr. P. C. wherever the police officer reduces into writing the statement of any person during the investigation of the case, he must make a separate record of such a statement, i.e. it should not be incorporated in the case diary but’ kept separately. This requirement is reiterated in rule 25.18 of the Punjab Police Rules (which rules were adopted in the relevant regard by the F. I. A. which investigated this case), wherein it is laid down that the statements recorded by an investigating officer under section 161 of the Code of Criminal Procedure shall not form part of the case diary prescribed by section 172, but shall be recorded separately and attached to the case diary. Under the newly-added section 265-C the prosecution is under an obligation to supply to the accused copies of the statements recorded under sections 161 and 164t; Cr. P. C. but no mention is made of statements recorded in the case diaries under section 172, Cr. P. C. The difficulty arises where the Police Office does not separately record the statement of a witness as required by section 161, Cr. P. C., but embodies it in the diary maintained under section 172, Cr. P. C., presumably as a statement of the circumstances ascertained through the investigation.
278. After having heard the learned counsel for the parties at length, I am inclined to agree with the learned counsel for the appellant that where a statement has been made to the police by a person during the investigation, the Police Officer should record it separately in terms of section 161(3), Cr. P. C. Where, however, he does not do so but proceeds to incorporate it in the case diary, the said statement should be construed as a statement under section 161, Cr. P. C., provided of course it is in substance and essence a statement of the witness and not merely a statement of the circumstances ascertained through investigation. Thus it is the nature of the statement and not the label given to it which will determine its real character. The 3 provisions of section 265-C are salutary and enacted for the benefit of the accused, conferring as they do a valuable right in his favour of being apprised of the case set up against him. This right cannot be taken away o evaded by allowing the Investigating Officer of misusing his authority by incorporating in the case diary the statements recorded by him during the investigation which, though in spirit and essence fall within the purview of section 161, Cr. P. C. but are erroneously or mischievously embodied by him in the case diaries. This safeguard has become all the more necessary as commitment proceedings have been abolished and the accused deprived of the opportunity of becoming cognisant of the evidence being led against him before the commencement of the trial. Similarly, the warrant procedure has also been done away with, and a provision analogous to section 265-C has been embodied in section 241-A of the Code dealing with the trial of summons cases, with the result that statements to the police are the only material available to him before he enters upon his trial. Hence; it is necessary to construe the provisions of section 265-C (and of 241-A) liberally and in the spirit in which they have been enacted. The interpretation contended for by the learned counsel for the prosecution overlooks the history and background of this legislation. The obligation created by these provisions cannot be evaded by merely incorporating the statements, which really fall under section 161, Cr. P. C., in his case diaries by the Investigating Officer.
279. Mr. Batalvi pointed out that witnesses Masood Mahmood and Ghulam Hussain were initially accused persons ; and as the Courts have deprecated the practice of obtaining statements from the accused by the police (Queen-Empress v. Jadub Das (I L R 27 Cal. 295), a common practice exists among the police officers not to prepare a separate record of the statements of accused peons during the course of an investigation. Hence their statements were not recorded under section 161, Cr. P. C. Similarly, Abdul Hayee Niazi, was initially himself investigating the case, and therefore, his statement under section 161, Cr. P. C. was also not recorded. However, the substance of the interrogation of these witnesses was rightly incorporated in the case diaries and copies thereof need not have been supplied consistent with the rule laid down in Queen v. Mannu.
280. I have no doubt that the copies of the statements were not supplied under the bona fide belief that it was not necessary to do so on the assumption that they were not statements recorded under section 161, Cr. P. C., but notes recorded under section 172, Cr. P. C. Be that as it may, on examining the case diaries we find that the statements of Ghulam Hussain anti Masood Mahmood, recorded on 2 T-7-1974 and 23-8-1974 respectively, though incorporated in the diary, are in essence and substance statements falling under section 161(3), Cr. P. C., as they contain a detailed narrative of the events touching the present murder. After the above two persons were granted pardon and made witnesses in the case, the statements made by them ought to have been supplied to the accused under section 265-C, Cr. P. C.
281. Similarly, although the substance of the examination of Abdul Hayee Niazi P. W. incorporated in the case diaries appears to be a condensed note of his statement and could conceivably be regarded as a statement falling under section 172, Cr. P. C. its close perusal reveals that reference has been made therein to some important acts done by him. This statement too, on the test laid down by us, must accordingly be construed as a statement falling under section 161, and not merely a record of the circumstances ascertained through investigation so as to fall within the scope of section 172, Cr. P. C.
282. I may observe that consistently with the changed law making it obligatory for the statements of all witnesses recorded under section 161, Cr. P. C. to be supplied to the accused seven days before the commencement of the trial, it is the duty of the prosecution counsel and the trial Court to see that all such copies are indeed supplied to the accused. They must ensure compliance with this requirement not only in relation to the statements recorded separately under section 161, Cr. P. C., but also a regards statements recorded in the police diaries, which in essence and spirit can be construed to be statements under section 161, Cr. P. C. This is an important right conferred by the law on the accused and must not be defeated by any colourable device.
283. Having reached the conclusion that the statements in question must be construed as being statements under section 161 of the Criminal Procedure Code, the question now is what course of action should be adopted. As already stated, the learned Special Public Prosecutor contended that, in the circumstances of this case, no prejudice had been caused to the accused on account of this omission, and therefore, this irregularity could safely be ignored as observed by this Court in Faiz Ahmad’s case. However, Mr. Yahya Bakhtiar submitted that the evidence of these three witnesses should be excluded altogether from consideration as the accused had been seriously prejudiced in not being able to question these witnesses in respect of several omissions and contradictions, etc.
284. I consider that the situation that has arisen in this case is in many ways similar to that which arose in Faiz Ahmad’s case and therefore, the precedent case can usefully be followed. As, however, some observations occurring therein are susceptible of different interpretations, we consider that in practice the following procedure should be followed in such cases;
(a) Copies of the statement under section 161, Cr. P. C. ref the witness, which has not been supplied to the accused, should be supplied to him and the said statement considered in juxtaposition with any other previous statement of the witness which had been supplied, along with the statements made by him in Court including his cross-examination, to ascertain whether any prejudice has in fact been caused to the accused. If after such comparison it appear that no prejudice has been caused the irregularity in not supplying the copies of the statement in question to the accused, as required under the law, would stand cured under section 537, Cr. P. C. and no further action shall be called for.
(b) If on making the comparison, referred to above, it transpires that the non-supply of the copies has resulted in prejudice then any of the following courses may be followed, depending on the facts of each case ;
(i) the statement of the witness at the trial can be excluded ; or
(ii) the witness recalled and allowed to be cross-examined on the basis of the statement supplied; or
(iii) a re-trial ordered.
285. In the light of the above principles the position in the instant case may now be examined.
286. So far as Masood Mahmood is concerned, it may be pointed out that although his statement under section 161, Cr. P. C. was not supplied, the accused were supplied copies of the statement made by him under section 164, Cr. P. C. record an 24th August 1974, as well as a copy of his statement recorded under section 337, Cr. P. C. after he was tendered pardon (which maybe described as approver’s statement). With reference to his statement :under’ section 161, Cr. P. C. now supplied, seven alleged contradictions between his statement under section 161, Cr. P. C. and his previous two statements have been pointed out. Besides the aforesaid alleged contradictions certain omissions allegedly amounting to contradictions are also said to exist. It is also submitted that he made five improvements in his statement under section 161, Cr. P. C. over his statement under section 164, Cr. P. C. and his approver’s statement.
287. I have carefully gone through all the alleged contradictions, omissions and improvements and am satisfied that this witness was w thoroughly cross-examined on all aspects of the matter and no prejudice has been caused to the appellant by the failure to supply a copy of his statement made on 23-8-1977 under section 161, Cr. P. C.
288. So far as Ghulam Hussain (P.
W. 31) is concerned his statement under section 161, Cr. P. C. was recorded on
27-7-1977, copy whereof was not
supplied to the accused. However, he confessed his guilt and made a confession
on 11-8-1977. Thereafter, he
submitted an application for being made an approver which was granted and his
approver’s statement was recorded on 21-8-1977.
In the written note presented to us by Mr. Yahya Bakhtiar on the question of
the use that could have been made at the trial of the statements under section
161, Cr. P. C. of the two approvers and Abdul Hayee Niazi, nineteen alleged
contradictions between his statement under section 161, Cr. P. C. (now supplied)
and his two other previous statements have been pointed out. Although most of
the instances which are described as major contradictions are not really so,
some contradictions do, indeed exist between then, for instance the manner in
which the incident at
289. As far as Abdul Hayee Niazi (P. W. 34) is concerned, it was contended by Mr. Yahya Bakhtiar that his statement under section 161, Cr. P. C. alleged to have been recorded in the case diary on 5-8-1977 is an interpolation and fabrication, because it sums up the prosecution case as concocted later, in that this statement laid the foundation of the substitution theory of the empties. He pointed out that this theory was not reflected in the interim challan dated 11-9-1977, but found mention in the final challan on the basis of the statement of the A. S. I. Abdul Ikram. We gathered from the oral submissions of Mr. Yahya Bakhtiar that the main point on which the defence would like to cross-examine this witness is with regard to the theory of substitution of empties, set up in his statement under section 161, Cr. P. C. However, Mr. Butalvi the learned Public Prosecutor has not relied upon this theory but has relied upon the totality of the evidence in order to establish the unreliability of the empties and the high probability that they have been substituted. In these circumstances, it is not necessary to recall Abdul Hayee Niazi (P. W. 34) as the appellant has not suffered any prejudice by the failure to supply the copy of the statement made to the Police under section 161, Cr. P. C.
290. We may now turn to the contention that the High Court failed to apply the correct legal procedure in the matter of permitting the defence to cross-examine important prosecution witnesses as to significant omissions from their previous statements, as it erroneously took the view that omissions or lapses of memory did not amount to contradiction within the meaning of section 145 of the Evidence Act, thus causing great prejudice to the appellant by denying him the opportunity to show that the witnesses were not reliable.
291. The High Court has observed on this question that it is true that sometime an omission may have the force of an inconsistent or contradictory statement and may be used for the purpose of impeaching the credit of the witness but such cases are rare. A witness may omit to furnish details in his previous statement or the previous statement may be absolutely devoid of details. The omissions of details do not amount to contradiction. They may have the force of contradiction only if the witness omits to refer to anything in the previous statement which he must have mentioned in the circumstances of a particular case. In this connection the case of Ponnurami v. Emperor (A I R 1933 Mad. 372(2)), was considered wherein it was observed that an omission in a statement may sometimes amount to a contradiction e. g. when to the police three persons are stated to have been criminals and later at the trial, four are mentioned. According to the impugned judgment, this statement of law was based upon the principle that in order to amount to an inconsistency, the omission should be of such material fact which the witness would not have omitted to state. Reference was also made to the case of Queen-Empress v. Naziruddin (I L R 16 All. 207), where it was pointed out that the statements recorded by the police officers are in most haphazard manner, only such parts are recorded which seem in the opinion of the Investigation Officer to be material, and there is no guarantee that they do not contain much more or much less than what the witnesses had said, and also to Deo Lal Mohton v. Emperor (A I R 1933 Pat. 440), wherein it was observed that such statements are very notoriously condensed and the omission of some detail in the note of the statement is not always a sure indication that such detail was absent from the statement.
292. The learned Judges then went on to observe that the witness himself may not consider a fact as material, and that fact may be brought on the record on specific questions by the prosecution. The omission of such fact cannot be considered to verge on inconsistency. Applying this principle to the omissions pointed out to them, the Court came to the conclusion that the omissions put to the witnesses in the present case did not amount to contradictions and were not sufficient to discredit them.
293. Mr. Yahya Bakhtiar contended that although the High Court laid down a substantially correct rule to the effect that “in order to amount to inconsistency the omission must be of such material fact which the witness would not have omitted to state”, a rule which has the support of the preponderance of judicial authorities both in India and Pakistan (See Hazara Singh v. Emperor (A I R 1928 Lah. 257), Ram Bali v. State (A I R 1962 All. 289), Madhabananda v. Rabindranath (A I R 1954 Orissa 31), Abdul Hashem v. The State (1969 P Cr. L J 491), Ekabbar Ali v. The State (1971 P Cr. L J 275), and Monir on page 152 of the Law of Evidence, yet when the time came for the actual application of this rule to test the evidence of the principal witnesses produced by the prosecution, the learned Judges fell into a serious error by stating, in paragraph No. 378 of the judgment, that;----
“These authorities are distinguishable since the dictum laid down therein would apply only to a case where a witness has specifically made a statement in his earlier statement which is said to be contradictory to the statement made during his examination at the trill. It cannot be applied to a case where the statement made at the trial was not made at the earlier stages and is a mere omission or distinguished from a contradiction.”
The learned counsel for the appellant submitted that it was the duty of the High Court to examine the effect of the omissions occurring in the earlier statements of the prosecution witnesses so as to determine their credibility.
294. Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, submitted that the law, as contained in section 145 of the Evidence Act, contemplates a real inconsistency or contradiction between the two assertions of a witness, but if a witness did not say anything in the previous statement about a fact in issue or a relevant fact, but later deposed to the same at the trial, then it would be a mere omission and not a contradiction. Nevertheless he conceded that in some cases an omission in a previous statement may amount to a contradiction where what is actually stated by the witness in Court was not reconcilable with its omission from the previous statement. In support of these submissions he referred us to Balmokand v. Emperor (A I R 1915 Lah. 16), Badri Chaudhry v. King-Emperor (A I R 1926 Pat. 20), In re; Guruva Vannan (A I R 1944 Mad. 385) and Abul Monsur Ahmed v. The State (PLD1961Dacca753). Mr. Batalvi also relied on the majority judgment of the Indian Supreme Court in the case of Tahsildar Singh and another v. State of U. P. (AIR1959SC1012).
295. I find that in the last case relied upon by Mr. Batalvi, the main question before the Court was the scope of section 162 of the Code of Criminal Procedure read with section 145 of the Evidence Act, and there was a difference of opinion between the learned Judges on the question whether a statement made admissible under section 162 of the Criminal Procedure Code could be used for contradicting as well as for cross-examining the witness under section 145 of the Evidence Act, or whether its use was only restricted to contradicting the witness. It seems to me, with respect, that the very elaborate and scholarly discussion in this case is not of direct assistance in resolving the controversy raised before us. I am of the view that the law in this regard has been correctly summed up by the learned author on page 1523 of Monir’s Law of Evidence, namely, that.
“A failure to assert a fact, when it would Rave been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. But it is wrong to suppose that all omissions are contradictions. It must be left to the Court in each particular case to decide whether the omission in question amounts to a contradiction or not:-------An omission in order to amount to a contradiction must be material. Thus where a prosecution witness deposes in Court that the accused gave a blow on the head or implicates the accused in his deposition before the Court but did not mention such fact before the police, the omission would amount to contradiction.
As a general principle the inconsistency is to be determined not by taking words or phrases alone, but by the whole expression or effect of what has been said or done.”
296. I consider that the question
of the effect of the alleged omissions and contradictions pointed out by the
defence in relation to the evidence of the main prosecution witnesses produced
in this case ought to be examined in the light of these principles and
observations, which have been generally adopted by the Courts in
Question of admissibility of Log Book of the Jeep involved in the crime under section 35 of the Evidence Act.
297. It was submitted by Mr. Yahya Bakhtiar that the learned Judges in the High Court were in error in holding that each individual entry in the Log Book Exh. P. W. 19/1-D of the jeep driven by Muhammad Amier (P. W. 19) had to be proved, in case the defence wanted to rely thereon for the purpose of showing that these entries contradicted the assertions made by approver Ghulam Hussain (P. W. 31) or by accused Ghulam Mustafa in regard to the use of the said jeep on certain dates in the month of November preceding the incident, and also on the date of the incident itself. He contended that the illiteracy of the driver of the jeep was irrelevant in this connection, as the entries in the Log Book were admissible in evidence under section 35 of the Evidence Act, once it had been shown that the Log Book was being maintained by the driver of the jeep in the discharge of his official duty. He added that under illustration (e) to section 114 of the Evidence Act there was a presumption that judicial and official acts had been regularly performed. In support of these submissions Mr. Yahya Bakhtiar referred us to Tamiz-ud-Din Sarkar v. Taju and others (A I R 1919 Cal. 721), Mian Ghulam Rasul Khan v. The Secretary of State for India (A I R 1925 P C 170) and ‘The Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar (P L D 1966 S C 725).
298. On behalf of the State, Mr.
Iiaz Hussain Batalvi submitted that section 35 of the Evidence Act only
declared the relevancy of entries appearing in official books or registers
etc., but it did not dispense with their proof, and the entries in the Log Book
in question could be read in evidence only if the Log Book itself satisfied the
requirements contained in section 35 of the Act. He submitted that the driver
of the jeep Muhammad Amir was an illiterate person and was not able to decipher
any of the entries appearing in the Log Book ; on the contrary he had informed
the Court that the accused Ghulam Mustafa did not make the entries regularly or
correctly, and that very often he made the entries even when the journeys had
actually been performed by Ghulam Hussain approver; and that not infrequently
fake number plates were used on the jeep. The learned Special Public Prosecutor
contended that in these circumstances the Log Book in question did not qualify
at all in terms of section 35 of the Evidence Act. In support of his
submissions he placed reliance on Mohammad Jajar and others v. Emperor (A I R
1919 Oudh 75), a Thakar Singh v. Ghanaya Singh (A I R 1926 Lab. 452), Mahtab
Din v. Kusar Singh and others (A I R 192? Lah. 640), Ghulam Muhammad Khan and
others v. Sumundar Khan sand others (A I R 1936 Lab. 37), BiYeswar Misra v. The
King (A I R 1949 Orissa 22), Saniar Dosadh v. Juggul Kishore Singh (I L R 23
299. Section 35 of the Evidence Act contemplates that;
“An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.”
300. As observed by their Lordships of the Privy Council in the case of Ghulam Fasul Khan:
“Statements in public documents are receiveable to prove the facts stated on the general grounds that they were made by the authorised agents of the Public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. In many cases, indeed, in nearly all cases, after a. lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence.”
301. In the case of Tamizuddin
Sarkar, referred to by Mr. Yabya Bakhtiar, it was held that the register of
deaths kept at a Thana was a public document within the meaning of section 74
of the Evidence Act, and was admissible under section 35 thereof as it was a
register kept by police officers under a rule made by the local Government and
to be found in the Bengal Police Manual. It was added that it was immaterial as
to which police officer had made the entries in the register, as the rule in
question cast the duty upon some police officer to be appointed for the
performance of that duty by the officer in charge of the
302. A somewhat similar view was adopted in Sanatan Senapati v. Emperor (A I R 1945 Pat. 489), when it was held that in the absence of reliable evidence as to who made the entry as to the death of a particular person in the register kept by a Chaukidar and in what circumstances, it could not be said that the conditions laid down in section 35 had been fulfilled. The learned Judges of the Division Bench emphasised the fact that it was not enough to prove that the Chaukidar’s register was an official book, but it was also necessary to prove that the entry relied on was either made by a public servant in the discharge of his official duty, or made by some other person in performance of a duty specifically enjoined by the law of the country; and, accordingly, for the application of section 35, Evidence Act, one must know who has made the entry, and in what circumstances.
303. The requirements of section 35 of the Evidence Act were also brought out in State Government, Madhya Pradesh v. Kamruddin Imamuddin (A I R1956 Nag. 74), in relation to the admissibility of entries appearing in births and deaths register. It was stated that while such a register was no doubt a document within the meaning of this section, yet it did not mean that each and every entry made in that register was admissible in evidence; only such entries as were made therein by persons in the discharge of their official duty were admissible. In the case of the Chairman, East Pakistan Railway Board, Chittagong, cited at the Bar by Mr. Yabya Bakhtiar, the Court was dealing with an entry in a service book made by a public servant in the discharge of his official duty, and it was held that such an entry clearly fell within the ambit of section 35 of the Evidence Act read with illustration (e) to section 114 thereof.
304. It is not necessary to refer at any length to the observations appearing in the other cases cited by Mr. Batalvi, except to say that they draw pointed attention to the requirements as spelt out in section 35 of the Evidence Act. In the case of Messrs Bengal Friends & Co, this Court has pointed out that there is a difference between the relevancy of a matter and its proof in accordance with the provisions of the Evidence Act.
305. It sill be seen, therefore, that in order to render a document admissible under section 35 of the Evidence Act three conditions must be satisfied:
(a) The entry that is relied upon must be one in any public or other official book, register or record;
(b) it must be an entry stating the facts in issue or a relevant fact; and
(c) it must be made by a public servant in the discharge of his official duty, or any other person in performance of a duty specially enjoined by the law.
The section imports the idea that the entry will be of a permanent nature, and the person making the entry should be such as is invested with authority to make the same.
306. Applying these principles to the Log Book in question, it appear that it has to be treated as a book or register maintained by the driver of the Government jeep in the discharge of his official duty, although no specific rule or departmental order was brought on the record in this behalf. It seems to me that we can take judicial notice of the fact that for every Government vehicle a Log book is generally maintained to show the journeys performed by it, and the purpose for which they are undertaken. The question, however, is whether this particular Log Book has, indeed, been regularly maintained by the official concerned, namely, the driver of the jeep so as to fulfil the other conditions mentioned in the section. If the Log Book was not being written up by the driver owing to his illiteracy, then it must be shown that the entries were being regularly made by some other person officially authorised in this behalf.
307. It appears from the evidence of driver Muhammad Amir (P. W. 19) that as he was illiterate, the entries in the Log Book were being made by various persons who used the jeep from time to time, and on certain occasions they were made by the Motor Transport Officer. A glance a the Log Book shows that at least one other driver by the name of Muhammad Ashraf also occasionally drove this jeep, but he was no examined at the trial. In other words, the evidence of the driver, who was in charge of the jeep and in whose custody the Log Book was ostensibly kept, shows that all the entries were not being uniformly made by a public servant whose duty it was to make those entries, as the Motor Transport Officer could not have certified the journeys made by other persons using the jeep. In these circumstances it has to be held that an essential ingredient of section 35 of the Evidence Act, namely, that the entries must be shown to have been made by a public servant in the discharge of his official duty, is not satisfied in this case. Further, in the state of affairs disclosed by driver Muhammad Amir, the presumption mentioned in illustration (e) to section 114 of the Evidence Act regarding the regularity of judicial and official acts can hardly be invoked in respect of this particular Log Book.
308. On this view of the matter the High Court appears to me to be right in holding that the individual entries sought to be relied upon by the defence had to be proved, and were not covered by the general provision contained in section 35 of the Evidence Act. As the defence did not take any steps to have the relevant entries proved, it is not entitled to refer to them for any purpose.
Effect of Non production of Certain Witnesses by the Prosecution.
309. It was next contended By Mr. Yahya Bakhtiar that the defence was seriously prejudiced by the failure of the prosecution to examine certain material witnesses, and it was, accordingly, necessary that these witnesses should now be called in the appellate Court as Court-witnesses, or an adverse inference be drawn against the prosecution. He particularly mentioned the following witnesses in this connection;
(i) Mr. Hanif Ramay who was the Chief Minister of the Punjab on the date of the incident, and had promptly appointed an Inquiry Tribunal, comprising Mr. Justice Shafi-ur-Rehman of the Lahore High Court, to enquire into the incident; particularly because he was given up by the prosecution on an allegation to the effect that he had been won over;
(ii) two witnesses of the recovery memorandum relating to the crime empties, namely, Abdullah and Abdul Ghaffar;
(iii) Rao Abdul Rashid, then
Inspector-General of
Police,
(iv) Mr. Malhi, Director, Federal
Security Force,
(v) two constables of the Federal Security Force, namely, Liaquat and Zaheer, who had earlier participated in the Islamabad incident and had also been sent to Lahore in advance to prepare for the present incident resulting in the death of Nawab Muhammad Ahmed Khan;
(vi) Ch. Nazeer Ahmed, Assistant Director of the Federal Security Force, who had taunted approver Ghulam Hussain on his failure to kill Ahmad Raza Kasuri during the firing incident at Islamabad in August 1974;
(vii) Ch. Muhammad Abdullah, Deputy Director of the Federal Security Force, who was allegedly deputed by accused Muhammad Abbas to persuade approver Ghulam Hussain to undertake this mission;
(viii) Ballistics Expert Major
Fayyaz Haider, who had prepared reports Exh. P. W. 32/1 and Exh. P. W. 32/2
with regard to the calibre and nature of the crime empties and the bullet head
recovered from the skull of the deceased, and also report Exh. P. W. 32/2
relating to the crime empties of the
(ix) Mian Khan, driver of the
Federal Security Force’s jeep used for the
(x) Mulazim Hussain of the
Federal Security Force who had actually fired at Ahmad Raza Kasuri during the
(xii) Allah Bakhsh, Head
Constable of the Federal Security Force who was also concerned in the
(xii) Head Constable Muhammad Yousuf of Battalion No. 3, who was cited in the calendar of witnesses, and was incharge of the Federal Security Force Armoury at Lahore, and had actually supplied ammunition to accused Ghulam Mustafa under the instructions of Amir Badahah (P. W. 20); and
(xiii) Col. Wazir Ahmad Khan, Commandant of the Havelian Central Ammunition Depot, who had signed reports Exh. P. W. 38/1, Exh. P. W. 38/2, Exh. P. W. 38/3 and Exh. P. W. 39/2 as regards the description of the ammunition supplied to the Federal Security Force Units.
310. The learned counsel
contended that it was the duty of the prosecution to produce all the available
evidence, or in the alternative to make these witnesses available for cross-examination by the defence,
even if the prosecution did not intend to examine them for any reason. He
submitted that Mr. Hanif R array had at any rate publicly denied that he had
been won over by appellant Zulfiqar Ali Bhutto, and this public denial
falsified the statement made by the Special Public Prosecutor in the trial
Court in this behalf. In support of his submissions Mr. Yahya Bakhtiar placed
reliance on : Stephen Seneviratne v. The King (AIR 1936PC289), Adel Muhammad El
Dabbah v. Attorney-General
of
311. In reply Mr. Ijaz Husain
Batalvi, the learned Special Public Prosecutor, submitted that in law there was
no obligation on the prosecution to produce all the witnesses cited in the
calendar; nor to call any other witnesses whom the accused may consider to be
necessary, as it was in the discretion of the Public Prosecutor to determine
under section 265-F of
the Criminal Procedure Code, what evidence should be produced before the Court
to prove his case. . He contended that no adverse inference was normally to be
drawn against the prosecution on account of its omission to summon any witness,
as it was open to the accused to examine such a witness in defence; and that an
adverse inference could be drawn only if it was shown that the prosecution had
deliberately dropped a material witness for some improper motive, so that
prejudice was caused to the accused in his defence by such omission. He further
submitted that it was also an erroneous impression that a witness not called by
the prosecution, but mentioned in the calendar, could just be tendered for
cross-examination by
the defence, as there could be no cross-examination unless there was
examination-in-chief in terms of sections
137 and 138 of the Evidence Act. In support of these submissions he also placed
reliance on some of the cases mentioned by Mr. Yahya Bakhtiar, and in addition
drew our attention to: Mahant Narain Das v. The Crown (I L R 3 Lab. 144), Abdul
Latif v. Emperor (A I R 1941 Cal. 533), Emperor v. Kasamalli Mirzalli (A I R
1942 Boni. 71), Allah Yar v. Crown (P L D 1952 F C 148), Kesar Singh and
another v. The State (A I R 1954 Pb. 286), Habib Muhammad v. State of
312. The cases relied upon by the learned counsel for the parties may briefly be noticed with advantage.
313. It will be instructive, at
the very outset, to refer to the three Privy Council cases relied upon by both
the parties in support of their respective contentions. In the case of Stephen
Senevtratne, which came before their Lordships of the Privy Council from
“It is a wrong idea that the prosecution must all witnesses irrespective of considerations of number and reliability or that it should discharge the functions both of prosecution and defence, If it does so, confusion is very apt to result, more specially so when the prosecution calls witnesses and proceeds automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution,”
While making these observations, their Lordships also stated that they did not desire to lay down any rules to fetter discretion in a matter such as this which was so dependent on the particular circumstances of each case, nor did they desire to discourage the utmost candour and fairness on the part of those conducting prosecution.
314. While considering the same question again in the case of Adel Muhammad El Dabbah, which had arisen from Palestine, the Judicial Committee stated that:--
“The last contention of the appellant is that the accused, had a right to have the witnesses whose names were upon the information, but were not called to give evidence for the prosecution, tendered by the Crown for cross-examination by the defence, as was asked for by counsel for the defence, at the close of the case for the prosecution. The learned Chief Justice ruled that there was no obligation on the prosecution to call them. The Court of Criminal Appeal held that the strict position in law was that it was not necessary legally for the prosecution to put forward these witnesses, and they could not say that the learned Chief Justice erred in point of law, but they pointed out that, in their opinion, the better practice is that the witnesses should be so tendered at the close of the case for the prosecution so that the defence may cross-examine them if they so wish, and they desired to lay down as a rule of practice that in future this practice of tendering witnesses should be generally followed in all Courts. While their Lordships agree that there was no obligation on the prosecution to tender these witnesses and therefore this contention of the present appellant fails, their Lordships doubt whether the rule of practice as expressed by the Court of Criminal Appeal sufficiently recognises that the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless perhaps, it can be shown that the prosecutor has been influenced by some oblique motive; no such suggestion is made in the present case.”
315. Relying on this case the Judicial Committee again reiterated in the case of Malak Khan, a case from Lahore, that;
“Ultimately it is a matter for the discretion of counsel for the prosecution, and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses.”
316. We may now turn to the cases cited from the Indian jurisdiction. In A I R 1942 Born. 71, it was observed that:
“The prosecution must always be perfectly fair. It is not the function of the Crown to procure the conviction of an innocent person.
But the Crown is not bound to call before the Court a witness who, it believes, is not going to speak the truth. If the Crown informs the accused of the name of the witness and produces him in Court, it can then leave it to the accused to call him or not, as he thinks fit. If the witness is called, Crown can cross-examine him. He should not be tendered for cross-examination. The practice of tendering witnesses for cross-examination leads to confusion and does not induce to the discovery of the truth.”
In making this last observation, the learned Judges relied upon an earlier decision of their Court reported in the same volume, namely, A I R 1942 Bom. 37.
317. The question was examined at
some length by the Indian Supreme Court in the case reported as A I R 1.954 S C
51. The learned Judges, while dealing with the effect of non-production of a material
eye-witness, observed
that the true rule applicable in
318. This question was again considered by the Indian Supreme Court in the case of Bakhshish Singh v. The State of Punjab, and, relying upon its own judgment in the case referred to above, as well as the Privy Council cases of Abe Muhammad and Stephen Seneviratne, the Court held that no adverse inference could be drawn against the State under section 114 of the Evidence Act owing to the non-production of a prosecution witness mentioned in the dying declaration to have witnessed the occurrence, as the Public Prosecutor had stated at the trial that he was giving up this witness as having been-won over, and no oblique reason for his non-production was alleged, least of all proved, by the defence. The learned Judges also observed that if produced he would have been no better than a suborned witness, and thus he was not a witness essential to the unfolding of the narrative on which the prosecution was based, and if examined the result would have been confusion, because the prosecution would have automatically proceeded to discredit him by cross-examination.
319. The view taken by the Lahore High Court on this question, in the cases cited at the Bar, is more or less in consonance with the dicta of the Privy Council, except that a somewhat different note was struck in the cases of Nazar Hussain and others v. The Crown and Ghulam Rasul v. The State. In the first case it was observed that;----
“The course adopted by the Public Prosecutor in giving up a witness on the ground that he had been won- over and thus withholding evidence which was likely to affect the result of the case is to be strongly disapproved. It is no part of the duty of the Public Prosecutor to secure convictions at any cost. On the other hand, he is expected to assist the Courts in coning to correct conclusions by placing all the material evidence before them.”
320. And in the case of Ghulam Rasul it was laid down that;----
“As a general rule the prosecutor is bound to call all eye-witnesses, who are mentioned in the First Information Report, unless he had reasons to believe that the witness if called would not speak the truth, or is, unnecessary, or is an accomplice himself. The mere statement of the Public Prosecutor not supported by any material upon the record that the witnesses were won over by the accused, would not absolve the prosecution from producing material witnesses mentioned in the First Information Report. If, however, the Public Prosecutor refuses to examine such witnesses, then a duty is cast upon the Court to call those witnesses as Court-witnesses and afford opportunity to both the accused and the prosecution to cross-examine them. Failure to examine such witness or witnesses who were able to give important information in the case, or had some connection with the transaction in question might very well lead to miscarriage of justice which should be avoided at all costs.”
It is interesting to observe that while making these observations the learned Judges purported to rely on the dictum of the Privy Council in the case of Stephen Seneviratne, to which I have already referred. A reference to that case shows that their Lordships of the Privy Council had not laid down any such rule: on the contrary they had observed that “it is a wrong idea that the prosecution must call witnesses irrespective of considerations of number and of reliability or that it should discharge the functions both of prosecution and defence”. Of course, they added that “witnesses essential to the unfolding of the narrative, on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution’“. It seems to me that it is difficult to hold that the learned Judges of the High Court had correctly appreciated the observations of the Privy Council on which they had placed reliance, as the Privy Council had not purported to lay down any general rule requiring the prosecution to produce, as a matter of obligation, all witnesses mentioned in the First Information Report irrespective of considerations of number and of reliability:
321. However, this view was not adopted by another Division Bench of the same High Court in a case decided in the following year namely, that of Nazir Jat and others. Shabir Ahmad, J. delivering the judgment of the Court, stated that;----
“The prosecution is not bound to produce as witnesses all persons who can give evidence regarding the point in issue or a relevant fact, and a case has to be judged on the evidence that is produced in Court. The omission on the part of the prosecution to produce some persons who admittedly bad some knowledge of a fact in issue or a relevant fact, may in certain cases, attract the provisions of law contained in illustration (g) of section l14 of the Evidence Act, 1872 It is, however, not in all cases of withholding of evidence that this presumption is to be drawn by the Court, and discretion is left to the Court to raise the presumption or not.”
Having made these observations the learned Judge proceeded to hold that the non-production of some of the neighbours, who had admittedly seen the occurrence, would not adversely affect the prosecution. This view was followed by another Division Bench of the same High Court in the case of Shaukat all v. The State, and no adverse inference was drawn against the prosecution on account of non-production of certain witnesses cited in the calendar.
322. This brings as to a consideration of the views of our own Court in this matter. In Allah Yar v. The Crown, special leave to appeal had been granted for the purpose of examining whether the course of justice had not been deflected by the failure of the prosecution to produce two witnesses by the name of Muhammad Nawaz and Saaduilah, the first one being an eye-witness of the main occurrence, and the second of an earlier altercation which apparently provided or explained the motive. At the trial the Public Prosecutor had given up both these witnesses on the ground that they bad been won over. The learned Judges observed that as Saadullah’s evidence related to an incident prior to the murder affecting the relations between the parties, it could not be contended that by failure to examine him at the trial any prejudice was caused or was likely to be caused to the accused persons or to the due course of justice. As to the non-production of Muhammad Nawaz, who had presumably witnessed the main occurrence, the learned Judges, referred with approval to the dicta of the Privy Council in the cases of Stephen Seneviratne and Malik Klan v. Emperor, as well as to the observations of a Full Bench of six Judges of the Allahabad High Court in the case of Queen-Empress v. Durga (I L R 16 All. 84) and the judgment of a Division Borsch of the Lahore High Court in Mahant Narain Das v. The Crown, and concluded that:---
“The circumstances already mentioned concerning the witness Muhammad Nawaz combined to raise the strong probability that in the committing Court he had not adhered to the truth, and in any case, his showing in those proceedings furnished reasonable ground for the Crown Prosecutor to believe that he was not a truthful witness. On the principles laid down in the authorities cited above, the Crown Prosecutor exercised a right discretion in declining to call Muhammad Nawaz as a witness for the Crown. All possibility of prejudice to the accused or to the due course of justice is excluded by the fact that, having been cited in the prosecution calendar, Muhammad Nawaz was available at the trial to be called and examined by the defence, if they thought it necessary.”
323. In the next case of Khairdi Khan and others, the same rule was reaffirmed by observing that;
“It is hardly necessary to stress the great importance which attaches to the non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non-production is established. It is true that the prosecutor is not bound to produce before the Court a witness who is not expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite-party should wish to examine him.”
324. The learned Judges also
referred with approval to the Privy Council case from
325. In the case Rafique v. The Crown, relied upon by Mr. Yahya Bakhtiar, it was not a question of not producing a material prosecution witness; but on the contrary the witness in question had been produced at the trial by the prosecution, but the learned Judges of the Chief Court of Sind had criticised the Prosecutor in rather strong terms for doing so on the ground that the evidence of this witness had disclosed mitigating circumstances in favour of the accused, and it appeared to the learned Judges that this duty should have been discharged by the accused under section 105 of the Evidence Act. It was in the context of these circumstances that the Federal Court observed that:
“It is the duty of the Crown Counsel to bring all the relevant facts to the notice of the Court, even though that might tend to mitigate the offence; and this duty cannot be shirked by the Crown Counsel on the ground that the burden of proving the exceptions rests on the accused.”
The learned Chief Justice pointedly referred to his judgment in this behalf in Safdar Ali’s ease. It seems to me that this particular case clearly proceeds on its own peculiar facts, and does not deal with the question we are considering here on the basis of considerations of principles and practice as have been brought out in the other cases discussed above.
326. In the next case brought to our notice, namely, The State v. Mushtaq Ahmad, in dealing with the question of the effect of non-production of certain witnesses by the prosecution, out of those who had been cited in the F. I. R., the learned Judges reiterated the view expressed by the Privy Council in Malik Khan v. The Emperor and the earlier judgment of the Federal Court in the case of Allah Yar v. The Crown. It was added that:---
“However that may be, in our opinion; nothing turns on the failure to examine the above three witnesses if on the evidence actually produced in the case the offence with which the accused was charged is brought home to him beyond any reasonable doubt.”
Before concluding the judgment, their Lordships also pointed out, with reference to the decision in Ghulam Safdar v. The Crown, that it is no part of the duty of the prosecution to prove all incidental matters that might be mentioned by a witness in his deposition.
327. In the last case, namely, Nur Begum v. Muhammad Hussain and another, the view expressed earlier as to the proof of all incidental matters by the prosecution was rearmed.
CORRECT LEGAL POSITION REGARDING PRODUCTION OF WITNESSES BY THE PROSECUTION
328. From this somewhat lengthy review of the cases cited at- the Bar it appears, if I may say so with respect, that the correct position is the one as consistently enunciated by their Lordships of the Privy Council in three successive cases coming before them from Ceylon, Palestine and Lahore; and adopted by this Court as well as by the Indian Supreme Court, namely, that the prosecution is not bound to call all the witnesses cited in the challan or the calendar of witnesses, irrespective of considerations of number and of reliability; nor is it obliged to call any witness not so cited, but considered to be necessary by the accused; as ultimately it is a matter for the discretion of the counsel for the prosecution. At the same time it is the duty of the prosecution to call all those witnesses who are essential to the unfolding of the narrative, on which the prosecution is based, whether their testimony is for or against the case for the prosecution; but it is not its duty to lead evidence to prove even incidental matters which do not concern the essential fundamentals of its case. It is not in every case that an adverse inference must be drawn against the prosecution in terms of illustration (g) to section 114 of the Evidence Act owing to non production of certain witnesses, whether mentioned in the indictment or not. It will depend upon the facts and circumstances of cacti case, and an adverse inference can be drawn only if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported on the record. Here again, a caveat must be entered to the effect that it does not mean that the Court will embark upon an inquiry for the purpose of determining whether a witness has, indeed, been won over or that he was, in fact, unnecessary. Ordinarily a statement made in this behalf by the counsel for the prosecution should suffice, but the defence may show that the statement is not correct, or is otherwise not acceptable. The case must, however, be judged on the evidence as a whole, and the Court must arrive at its conclusions accordingly, taking into consideration the persuasiveness of the testimony given at the trial in the light of such criticism as may be levelled at the absence of possible witnesses.
329. The prosecution must, of course, be prepared to make available for purposes of examination by the defence such of the given up witnesses as the accused may specify in this behalf. I am in respectful agreement with the view expressed in Abdul Latif v. Emperor, Sadeppa Gireppa Mutgi and others v. Emperor (A I R 1942 Born. 37), Emperor v. Kasamalli Mirzalli and Kesar Singh and another v. The State to the effect that a witness cannot be tendered for cross-examination without his being examined-in-chief. The law in regard to examination of witnesses is contained in sections .137 and 138 of the A Evidence Act. There is no provision in that Act for permitting a witness to be tendered for cross-examination without his being examined-in-chief, and this practice is opposed to section 138 of the Act. The correct procedure, therefore, appears to be that if the prosecution gives up any witness either as being unnecessary or as having been won over, then he should be made available at the trial for examination as a defence witness, should the accused so desire. In that case the prosecution will clearly have the right to cross-examine him.
APPLICATION OF THESE PRINCIPLES TO THE PRESENT CASE
330. The factual position may now be examined in the light of the conclusions reached above. Out of 15 persons mentioned by Mr. Yahya Bakhtiar, only four were cited in the list of witnesses filed by the prosecution. Mr. Hanif Ramay was given up on the ground that he had been won over. ‘It was contended by Mr. Yahya Bakhtiat that Mr. Ramay had issued a statement denying any such thing, but the learned Special Public Prosecutor maintained his stand during the trial. He stated before us that certain events had happened during the course of the trial, as a result of which the prosecution had reached this conclusion. As I have already stated, it is hardly possible for the trial Court, much less for this Court, to embark upon a factual inquiry into the correct position, and it is enough to take notice of the controversy on this point. It was stated at the Bar by Mr. M. A. Rehman, the learned Advocate-on-Record for the State, that the Public Prosecutor was prepared to face any legal proceedings which Mr. Hanif Ramay might be contemplating against him in this regard. In the circumstances, we are of the view that there is no material for us to reject the statement made at the trial by the Public Prosecutor with regard to the position of Mr. Hanif Ramay, and accordingly no adverse inference can be drawn against the prosecution owing to his non-production.
331. The two recovery witnesses, Abdullah and Abdul Ghaffar were apparently given up as the prosecution came to the conclusion that it could not rely on the contents of the recovery memo. supposed to have been prepared by Investigating Officer Abdul Hayee Niazi at the spot, as its case was that the empties were not sealed at the spot. It would have been, therefore, futile for the prosecution to produce these witnesses and then proceed to denounce them for the purpose of showing that the recovery memo. could not be relied upon as to the correctness of its contents.
332. Head Constable Muhammad Yousuf of the Federal Security Force was given up as unnecessary on the ground that the Investigating Officer Abdul Khaliq (P. W. 41) had found that the Roznamcha maintained by this witness contained interpolations and over-writings and the possibility of its having been tampered with could not be excluded. The prosecution, therefore, chose to rely upon the evidence of Muhammad Yousuf’s superior, namely, Assistant Director Amir Badshah Khan (P. W. 20). This was clearly a matter within the discretion of the prosecution and no exception could be taken to the course adopted by it.
333. It may be stated that there is no averment by the defence that any of the accused expressed a desire to examine all or any of these four witnesses who had been cited in the challan but given up at the trial by the prosecution. If such a request had been made, it was the duty of the prosecution to make them available for examination by the defence.
334. The remaining 11 witnesses mentioned by Mr. Yahya Bakhtiar were not included in the calendar of witnesses, and no duty was cast upon the prosecution to produce all or any of them simply for the reason that the defence considered them to be necessary, unless it could be shown that their evidence was material for the unfolding of the narration of the case relied upon by the prosecution. This does not appear to be so. The names of the Federal Security Force employees Liaquat, Zaheer, Ch. Nazir Ahmad, Ch. Abdullah, driver Mian Khan, Allah Bakhsh and Mulazim Hussain were disclosed by various accused persons during the course of investigation of this case, and some of them are accused in the case relating to the attack on Ahmad Raza Kasuri in Islamabad on the 24th of August, 1974. There is substance in Mr. Batalvi’s submission that as such the status of these persons was hardly better than that of accomplices and no useful purpose would have been served by producing them as- witnesses in the present case.
335. The name of Mr. Irfan Malhi, Director, Federal Security Force at Lahore was only incidentally mentioned by prosecution witness Sardar Abdul Wakil Khan while narrating an incident prior to the date of the present murder during which he had intercepted a jeep belonging to the Federal Security Force which was being driven without a number plate, and Abdul Wakil Kban had contacted Mr. Irfan Malhi in that connection. This was, indeed, an incidental matter and it was not necessary for the prosecution to prove the same by producing Mr. Irfan Malhi.
336. As to Rao A. Rashid, it was
stated by the learned Special Public Prosecutor that the investigation had
revealed that this gentleman was too deeply involved and was not willing to
tell the truth. In the peculiar circumstances of this case, which was filed as
untraced when Rao A. Rashid was the Inspector-General of Police in the
337. As to Major Fayyaz Haider of the Inspectorate of Armaments, G. H. Q., Rawalpindi, the explanation given by the prosecution is that his report was admissible in evidence under section 510 of the Code of Criminal Procedure without the necessity of big personal appearance before the Court, and that, in any case, on the advice of the Inspectorate of Armaments, two other officers of the organization, namely, Lt: Col. Yawar Hussain and Major Sarfraz Naeem were cited as witnesses in the incomplete challan dated the 11th of September, 1977, and both these gentlemen appeared as P. Ws. 32 and 33 respectively. A reference to the amended section 510 of the Criminal Procedure Code does support the prosecution on the point that the report of the Arms Expert could be admitted in evidence without the examination of the expert himself. However, this point will need to be discussed further at a later stage.
338. Lastly, as regards Col. Wazir Ahmad Khan, Officer Incharge of the Central Ammunition Depot at Havelian, from where various lots of ammunition were supplied to the Federal Security Force, Mr. Batalvi stated that his name had been inadvertently omitted from the list of witnesses filed by the prosecution, and on detecting this error an application had been filed by the Special Public Prosecutor before the trial Court seeking permission to produce him as a witness, but this application was rejected. Mr. Batalvi rightly submitted that no adverse inference could be drawn against the prosecution on account of an order made by the High Court.
CONCLUSIONS AS TO NON-PRODUCTION OF WITNESSES
339. Taking an overall view of the entire situation, I am of the view that nothing turns on the non-production of the 15 witnesses mentioned by Mr. Yahya Bakhtiar at the commencement of his submissions in this behalf. It is to be noted that no request was made in the trial Court for summoning any of these witnesses as defence witnesses, or even as Court witnesses ; and in the application filed in this behalf during the hearing of these appeals the request relates only to two persons, namely, Col. Wazir Ahmad, Ballistics Expert, and Agha Muhammad Safdar, Deputy Superintendent of Police, Islamabad. The last mentioned gentleman is not included in the list of 15 witnesses now under discussion. The prosecution has chosen to be judged without the evidence of these 1.5 witnesses, and it was within its rights in doing so. No compelling reason appears to have b-.en made out on the record for drawing any adverse inference against the prosecution in terms of illustration (g) to section 114 of the Evidence Act, as none of the witnesses in question were essential to the unfolding of the main narrative of the case, and have not been withheld owing to any improper or oblique motive.
IMPLICATIONS OF CAMERA PROCEEDINGS
340. The learned counsel for appellant Zulfiqar Ali Bhutto next argued that the whole trial stood vitiated for the reason that some parts of the proceedings at the trial were held in camera in violation of the provisions of section 352 of the Criminal Procedure Code, and the established principles of holding criminal trials in the open. Mr. Yahya Bakhtiar contended that it is elementary that justice must not only be done but it should also be seen to be done ; and that in the circumstances there was no warrant at all for holding part of the trial of the appellant in camera, as he has been seriously prejudiced thereby on account of publicity having been given to the evidence led against him, but a similar opportunity having been denied to him when he wanted to present his defence.
341. The learned Special Public Prosecutor, in reply, repudiated these contentions, and submitted that it is unfortunate that appellant Zulfikar Ali Bhutto had all along acted on the mistaken notion that he was to be tried by the public and not by the High Court, and for this reason he was more after publicity than for presenting his defence to the criminal charges brought against him. Mr. Batalvi further submitted that, is any case the orders made by the High Court for holding the proceedings in chambers in camera were perfectly legal and justified in accordance with the practice of the Court relate to hearing of miscellaneous applications in motion, and also wholly covered by the proviso to section 352 of the Code of the Criminal Procedure. Finally, he contended that in any case no prejudice whatsoever had in fact been caused to the appellant by the adoption of this mode of trial during certain parts of the proceedings in the High Court.
342. The grievance relates to two stages of the proceedings, namely;
(a) On 9-1-1978 the trial Bench heard in camera, and dismissed in limine, a miscellaneous application (Cr. Misc. No. 7-M of 1978) filed by appellant Zulfikar Ali Bhutto praying for the transfer of the case for trial to another Bench or Judge, preferably the Sessions Judge, Lahore;
(b) the examination of the appellant under section 342, Cr. P. C. held , in camera on 25th and 28th January, 1978, after it had been commenced in the open Court on the 24th of January, 1978.
343. Taking up the question of the hearing of the miscellaneous applications in chambers, the relevant facts are that on 18-12-1977 Zulfiqar Ali Bhutto appellant had made the application (Cr. Misc. No. 7-M of 1977) before the trial Bench under section 561, Cr. P. C. with the prayer for transfer of the case for trial by another Bench or Judge, preferably by the Sessions Judge, Lahore. There was no sitting of the Bench on 19-i2-1977 which was the last working day of the Court before the winter vacation commencing on 20-12-1971. On 22-12-1977 the appellant sent in another application from jail requesting that his transfer application might be taken up for disposal during the winter vacation. However, as it was, the two applications were put up in motion before the trial Bench immediately on the reopening of the High Court on 9-1-1978 and were dismissed in limine after having heard the petitioner and his two learned counsel in chambers. Thereafter, on the same day, on 9-1-1978, when the trial of the case was actually resumed in open Court in- the presence of the parties and their learned counsel, Mr. D. M. Awan learned counsel for Zulfikar Ali Bhutto appellant rose and submitted that his client had informed him in writing that he had cancelled the powers-of-attorney of all his counsel. But the Court thereupon appointed two of his learned counsel namely Messrs D. M. Awan and Ehsan Qadir Shah to defend him at State expense and called upon Mr. Ehsan Qadir Shah to resume the cross-examination of P. W. 31 Ghulam Hussain approver. On this Mr. Ehsan Qadir Shah stated that he had no further questions to ask of the witness as he had been so instructed by the accused Zulfiqar Ali Bhutto. He further submitted that the said accused had informed him that he was disassociating from the proceedings. Afterwards Mr. Ehsan Qadir Shah was relieved of his assignment as the State Counsel at his request. On the next day, on 10-1-1 78, Mr. D. M. Awan submitted at the hearing that Zulfiqar Ali Bhutto accused had declined to give him any instructions in the case. Accordingly, the Court at his request also rescinded his appointment as the State Counsel for the accused. In these circumstances Zulfiqar Ali Bhutto accused remained un-represented in the further proceedings of the case.
344. Now at this stage, let us have a closer look into the relevant facts on this part of the case. The record shows that in the transfers application (Cr. Misc. No. 7-M of 1978) running into 53, typed pages, scurrilous allegations were levelled almost entirely against the learned Acting Chief Justice, heading the trial Bench. Some of the allegations, if not most of them, were made in repetition of those contained in the previously moved` applications. The order dated 9-41978 passed on this application shows that the learned trial bench had decided to hear the application in motion in camera and dismissed it in limine by a short order announced at the hearing. It was followed by a detailed order covering 33 typed pages containing the reasons for it.
345. In the detailed order dated 9-1-1978 passed on the transfer application (Cr. Misc. 7-M of 1978), it is mentioned, that it was decided to be taken up in chambers since not only it is the usual practice of the Court to hear motion cases in chambers but also because “the intention of the, accused in repeating petitions based on allegations of bias appeared only to give publicity to the baseless allegations of a scandalous character and thus undermine the confidence of the public in the Courts of the country”. On appearing before the Bench the appellant expressed his surprise and made a request for the petition to be heard in open Court. This request, according to the learned trial Bench, confirmed their views that the object of the accused petitioner was clearly to give publicity to the highly scandalous, scurrilous and baseless allegations in the petition and the arguments that might be addressed in that connection. Therefore the Bench did not agree to the request of the appellant. In these circumstances the learned trial Bench heard the arguments m chambers on the transfer application in the presence of the appellant and his two learned counsel. It appears that in the course of the arguments by Mr. D. M. Awan, his learned senior counsel, the appellant intervened to make certain submissions of his own despite the fact that it was brought to his notice that he was interfering with the proceedings. After the conclusion of the arguments by his learned counsel the petitioner was also allowed an opportunity to supplement the arguments, on facts as a special case. . However, according to the impugned order, the appellant started apolitical speech in Court. He was asked several times to confine himself to the petition and refrain from making a political speech. Ultimately be took his seat saying that if be was not allowed to say what he liked he would not make his submissions.
346. I shall separately deal with the merits of the allegations contained in the transfer application and the order passed thereon, at a suitable place in this judgment. But for the present suffice it to mention here that the appellant had taken exception against the hearing of his application “in chambers” on wholly untenable grounds, and had. thereafter on the same day voluntarily chosen to disassociate himself from the proceedings at his trial held in open.
347. According to the Concise Law Dictionary (5th Edn.), by P. C.1 Osborn the term “Chambers” is defined to mean rooms attached to the Courts in which sit the Judges, the masters and registrars for the transaction of legal business which does not require to be done in Court. A Judges” sitting in chambers can exercise the fell jurisdiction vested in the High Courts (Judicature Act, 1925). Similarly in Bouvier’s Law Dictionary, it is stated that the chambers is the private room of the Judge. Any hearing before a Judge which does not take place during a term of Court or while the Judge is sitting in Court, or an order issued under such circumstances, is said to be in chambers. In Mozley’s Law Dictionary (6th Edn.), the term is defined to mean the offices of a Judge in which a large part of the business of the superior Courts is transacted by a Judge or a master. Applications by way of summons, and inquiries incidental to a suit, are made in chambers. ‘ According to Wharton’s Law Lexicon (4th Edn.) chambers are quasi-private rooms, in which the Judges or masters dispose of points of practice and other matters not sufficiently important to be heard and argued , in Court. According to Black’s Law Dictionary “chambers” is the private room or office of a Judge ; any place in which a Judge hears “motions”, signs papers, when he is not holding a Session of Court. Business so transacted is said ‘to be done “in chambers”. In the Oxford English Dictionary the term is defined to mean the room in which a Judge sits to hear cases and transact business not of sufficient importance to be brought into Court.
348. In this connection here it may be mentioned that the cases relied upon by the learned counsel for the appellant are not in point inasmuch as they do not directly relate to the matters heard “in chambers”. But in Cora Lillian McPherson v. Oran Lillian McPherson, cited on behalf of the appellant, the Privy Council while emphasising that every Court of Justice is open to every subject and that publicity is the authentic hallmark of judicial procedure, at the same time observed that it need hardly be stated that to this rule; there are certain strictly defined exceptions, and has in particular referred to the applications properly made “in chambers” and infant cases as the two exceptions. In Alliance Perpetual Building society v. Belrum Investment Ltd. and others ((11957) 1 W L R 720) a motion was put up for hearing before Harman, J. in Chancery Division to commit Arthur George Wareham, Editor of the “Daily Mail” for contempt of Court by the publication in that paper of what purported to be an account of proceedings on action pending in Chambers and never yet heard in open Court. In that connection the learned Judge observed;
“The gravamen of the charge made is that the article is an account of matters proceeding in chambers. In my judgment, if this charge be true, a contempt of Court has been committed. Interlocutory matters before the master proceed in private ; the public has no right to attend them, nor has anyone, as I conceive, any right to give any account of them while the action is pending and has not been adjourned into Court.
It is not easy to find authority for this proposition, but it is assumed in the speech of Lord Loreburn, L. C. in Scott v. Scott, and is, I think, well established.”
and in conclusion he recorded the finding in the matter in these words;
“I regard it as important that this kind of intrusion on matters pending in chambers should be strongly discouraged and I feel bound to mark the Court’s displeasure by fining the respondent £100.”
349. Although the reported case of the House of Lords in Scott v. Scott (1913 A C 417) is not directly in point, yet the observations by Lord Lorebum on page 445 and Lord Atkinson on page 467 do go to lend support, to the view that the hearing of causes in chambers is normally held in private, as another exception to the general rule.
HEARING OF MISCELLANEOUS APPLICATION IN CHAMBERS
NOT OPEN TO OBJECTION
350. I may pause here to mention that according to section 352, Cr. P. C. the place in which any Criminal Court is held for the purpose of “inquiring into or trying any offence” shall be deemed to be an open Court. Strictly speaking therefore, the Court is open only for the purpose of “inquiring into or trying any offence” and not for any collateral purpose, or while dealing with something which is strictly speaking outside the cause itself. In this category would fall a transfer application which is not germane to the proper trial as such. In this view of the matter also section 353 of the Code did not debar the learned trial Bench from hearing the transfer application in limine “in chambers” and not in Court open to the public. Indeed the Bench in its impugned order has itself specifically observed that it was decided by them to take up the transfer application “in chambers” in accordance with the usual practice of the Court. The objection as to the hearing of the transfer application in chambers is, therefore, without merit.
351. Turning now to the second phase of the camera proceedings, we find that after the close of the case by the prosecution, the statement of Zulfiqar Ali Bhutto accused under section 342, Cr. P. C. was partly recorded in open Court on 24-1-1978. In answer to the very first question put to, him he replied as under;
“Since I am boycotting the proceedings of the trial, I will not be offering any defence. I have withdrawn as you know the Wakalatnama of all my counsel. This was done on the 10th of January, after my applications dated 18th of December, 1977, and 22nd December, 1977, were dismissed by this Hon’ble Bench in chambers. Since I am not offering my defence, I will confine my statement mainly to two issues---(1) Why this trial is taking place, why this case has been fabricated against we and (2) on my lack of confidence in getting a fair trial and justice. As for the other questions if they do not directly pertain to my own defence, I would be willing to give the answers.”
352. In this manner, out of a total of sixty-seven questions, he was asked fifty-three questions and the answers given were recorded on 24-1-1978 in open Court. But on and from 25-1-1978 the learned trial Bench decided to hold the further proceedings in camera. The relevant portion of the order passed by the Court in that connection is reproduced below;---
“2. More than one application has been presented by the accused before this Court so far in which scurrilous, scandalous and baseless attacks have been made against the impartiality of this Bench. More than one application, as stated by him, was also moved before the Supreme Court for transfer of the case on the ground of bias, the first of which was dismissed and the second was withdrawn. It is clear that the same process is sought to be repeated to defame this Court without any foundation to take advantage of the tradition that this Court does not defend itself in the Press.
3. We, therefore, find that it is in the interest of justice as well as in the interest of a just and proper determination of the issues involved in this case that the proceedings be now held in camera. We consequently order accordingly and direct that no part of the proceedings to be held in camera shall in any manner be publicised in any form whatsoever.”
353. In the same connection the Bench also appears to have passed a further order dated 25-1-1978 as under;---
“This morning, a few supporters of the principal accused were found shouting and yelling in the corridor outside the Chief Justice’s Chamber. From what they were saying, it is evident that they want to create a disturbance in the Court Room during the trial of the accused in this case.
In the circumstances, and since all the evidence in the case has already been recorded in open Court, we direct that to obviate the possibility of such disturbance being created, the proceedings of this Court in this case shall be in camera.”
In these circumstances the rest of the examination of the appellant and the subsequent proceedings were held in camera.
354. In this case the entire prosecution evidence was recorded in open Court. Even most of the examination of Zulfiqar Ali Bhutto as an accused under section 342, Cr. P. C. was completed in open Court on 24-1-1978. His remaining examination on 25-1-1978 and 28-1-1978 was held in camera. He corrected his statement recorded by the Court in camera on 25-1-1978 in his band and appended a note to it saying that : “I have corrected the statement but I cannot say if everything stated on 25-1-1978 has come on record unless I can verify it with the tape”. Similarly he corrected his, statement recorded by the Court in camera on 28-1-1978 and also added a note more or less to the same effect to it in his own hand and under his signature.
355. After the accused had closed their defence, on 7-2-1978 Zulfiqar Ali Bhutto made another lengthy statement mostly in the nature of a tirade against the Court for holding the proceedings in camera. This statement was also recorded in camera but this time the appellant refused to correct and sign the same. Instead of this he annexed a separate note to it which is reproduced below in extenso;
“On the previous occasion when the Court directed me to correct my statements, I made only typographical and grammatical corrections of the incomplete statements. There were vital gaps and omissions in the statements but since I had been denied my legal right to state why this false and fabricated case was concocted against me and since I was denied the opportunity to speak on the bias and prejudice of the Chief Justice and as I was not offering my defence, I merely verified and signed the corrections of the incomplete statements. I have again been directed to correct the statement I made today. I have neither seen the statement nor I am correcting it as I have been advised that the object is to prejudice my case. Hence I am returning the statement without looking at it. (I am not signing this covering note either).
My position remains the same. I have not signed the previous statements and nor this one 7th February, 1978.”
356. In this connection I am constrained to observe that in adding the remarks perhaps the appellant’s attitude was unnecessarily provocative toward the Court. To say the least, the insinuation that “there were vital gaps and omissions” in his statements recorded by the Court in camera on 25-1-1978 and 28-I-1978 appears to be an afterthought, otherwise there was nothing to prevent him from explicitly saying so in his notes on his two previous statements when they were comparatively fresh in his mind. Above all the proceedings in the trial Court were tape-recorded, and in this Court before us at the hearing his learned counsel did not even raise this issue to enable us to verify his gratuitous remarks with the help of the tape record. Even the appellant who personally appeared before us in Court and addressed us for four days, did not remotely advert to it, None of the other co-accused nor even their learned counsel including Mr. Qurban Sadiq Ikram, Advocate for Mian Muhammad Abbas appellant have at any stage supported him in this behalf. I have, therefore, no hesitation in repelling these insinuations against the trial Bench.
357. Zulfiqar Ali Bhutto appellant did not produce any evidence in defence. Mian Muhammad Abbas accused produced three witnesses, the first one was examined without oath. The evidence of the remaining two witnesses was recorded in camera but they were not cross-examined by Zulfiqar Ali Bhutto in spite of the opportunity allowed to him. These witnesses produced by Mian Abbas were mostly formal and related to his own defence. Ghulam Mustafa, Rana Iftikhar and Arshad Iqbal co-accused jointly produced one witness in their defence. He too was not cross-examined by Zulfiqar Ali, Bhutto. The evidence of none of the defence witnesses, who were examined in camera, has any material effect on the case for or against Zulfiqar Ali Bhutto. So drat he was in no way prejudiced by the examination of these witnesses in camera. The other accused did not raise any objection to the recording of the evidence of their witnesses in camera.
358. Indeed this is a peculiar case of its kind, and the stance adopted by Zulfiqar Ali Bhutto appellant during the course of the trial in a murder case is all the more surprising. On 24-1-1978 in answer to the very first question put to him in his examination under section 342 as an accused, he stated that he had already boycotted the proceedings after his transfer application had been dismissed by the Court, and added that he had decided not to offer his defence and would, therefore, confine his statement in Court as an accused mainly on two issues--”(1) why this trial is taking place, why this case has been fabricated against me and (2) on my lack of confidence in getting a fair trial and justice”. In actual fact he did not in substance answer any of the questions put to him in his examination as an accused.
359. In this manner he has deliberately failed to avail of the very valuable opportunity which the law afforded him in order to enable him personally to explain the circumstances appearing against vim in the prosecution evidence, under section 342 of the Code so that he may not be condemned unheard. Whether thereby, in adopting this obdurate attitude, he has in fact done any service to himself, it is for him to fathom.
360. Let me now advert to the propriety of the orders passed by the learned trial Bench in holding this part of the proceedings in camera, The matter is governed by section 352 of the Criminal Procedure Code, 1898, which lays down that;----
“The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them;
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.”
361. The operative part of this
section embodies the general rule that ordinarily criminal trials should be
open to the public, as publicity is the authentic hallmark of judicial
proceedings. In cases decided under the Common Law of England as well as in the
“Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our Courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”
362. However, as stated in Corpus Juris Seeundum, Volume 23, section 963 ((1947) 333 U S 257). pages 849 to 853, the ‘public trial concept has never been viewed as imposing a rigid, inflexible straight jacket on the Courts, and it is generally conceded that the right to have the general public present at A trial is subject to some limitations. The trial Judge has discretion to close to the public, even without the consent of accused where there is good cause for such action. In exercising control over the trial proceedings, the Judge may exclude those whose conduct is of disturbing nature, or whose presence is likely to interfere with the administration of justice. It is usually held that unless accused is thereby prejudiced for want of aid, or counsel of any person whose presence might be of advantage to him, it is within the discretion of the Court to exclude persons from the Court room where it deems necessary so to do in order to preserve decorum, to secure the administration of justice, or to facilitate the proper conduct of the trial.
363. These principles underlie
the judgments cited as Scott and another v. Scott (1913 A C 417), King v.
Governor of Lewes Prison ((1917)2KBD254), Cora Lillian McPherson v. Cora
Lillian McPherson (AIR1936PC246), Naresh Shridhar Mirajkar and others v. State
of Maharashtra and others (A I R 1967 S C 1==(1966) 3 S C R 744 ), W. E.
Gardner v. U. Kha (A I R 1936 Rang. 471), In re: M. R. Yenkalaraman (A I R 1950
Mad. 441), Mst. Shirin Nazir v. Badruddin Karamah Nazir and another (P L D 1963
Kar. 440), Mairaj Muhammad Khan v. The State (P L D 1978 Kar. 308), Abdul
Rashid Chaudhry and others v. The Stale (P L D 1966 Lab. 562) and The
364. According to Halsbury’s Laws of England (4th Edn.), Volume It, para. 280, in general all persons, except children have a right to be present in Court, provided there is sufficient accommodation and no disturbance of the proceedings. There is, however, an inherent jurisdiction in the Court to exclude the public if it becomes necessary so as to do so for the due administration of justice:
“In general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the Court may sit in camera. Thus the Court may sit in camera, either throughout the whole or part of the hearing, where it is necessary for the public safety, or where the subject-matter of the suit would otherwise be destroyed, for example by the disclosure of a secret process or of a secret document, or where the Court is of opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public. In addition the Court is directed or has been given power by statute or statutory rules to exclude the public in particular proceedings and is empowered to do so in any proceedings for an offence against morality or decency when evidence is given by children or young persons.”
CONCLUSIONS AS TO JUSTIFICATION FOR CAMERA PROCEEDINGS
365. It will thus be seen that it is an essential and salutary principle of administration of justice that it must not only be done but should also appear to be done. This necessarily carries with it the right to an open trial in the full gaze of the public, including the Press. This in turn leads to a healthy, fair and objective administration of justice calculated to promote public confidence in the Court and is conducive to dispel all misgivings about it. There can be no two opinions about it. But this rule, on al accounts, is not a rigid and inflexible one, and must not be pressed to its breaking point in defeating the very ends of justice. It admits of exceptions and cases may arise whereby following this rule for an open trial justice may itself be defeated. A Court of law exists for the administration of justice. The primary function and the ultimate goal before a Court is to do justice between the parties. However, as seen, above, there is no dearth of cases in which the very requirement of the administration of justice in itself demands that a trial may be held in private or in camera and an open public trial is likely to result in the stultification of justice. In this category are included cases within the parental jurisdiction of the Court for the safeguard of the interests of the ward or lunatics. But it is, nonetheless, not possible to prepare an exhaustive list of all such cases. In fact each case must be judged on its own facts in this respect. Indeed even the Legislature has also, in its wisdom, expressly provided for the holding of trials in camera under some of the statutes in force in this country.
366. In this connection section 14 of the Official Secrets Act (XIX of 1923) lays down that in addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public should be excluded during any part of the hearing the Court may make an order to that effect, but the passing of sentence shall in any case take place in public. Similarly in section 53 of the Divorce Act’ (IV of 1969) it is expressly provided that the whole or any part of any proceedings under the Act may be heard, if the Court thinks fit, within closed doors. Also section 11 of the Defence of Pakistan Ordinance (XXX of 1971) lays down that in addition, and without prejudice, to any powers which a Special Tribunal may possess by virtue of any law for the time being in force to order the exclusion of the public from any proceedings, if at any stage in the course of the trial of any person before a Special Tribunal, application is made by the prosecution on the ground that the publication of any evidence to be given or of any statement to be made in the course of the trial would be prejudicial to the public safety, and that, for that reason, ‘all or any portion of the public should be excluded during any part of the hearing, the Special Tribunal may make an order to that effect. These are some of the statutory exceptions to the general rule for an open trial found in the corpus juris of this country.
367. While the operative part of the section embodies the general rule to ensure that the criminal inquiries and trials are held in open Court; under the Proviso to the section, the Legislature in its wisdom has, however, grafted the exception to the general rule. Under the Proviso the discretion is vested in the Presiding Judge or Magistrate and he may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person shall not have access to, or remain in the Court. This discretion thus conferred on the Judge or the Magistrate under the Proviso is ostensibly very wide and is not hedged in by other considerations. This, however, does not mean that thereby he is armed with the licence to act on mere humour and caprices,, or that he is free to act arbitrarily and without reason. In all circumstances, even in exercising the discretion, he must act in aid of the administration of justice and with that end in view and only on sound judicial principles, bearing in mind the facts of each case.
368. It cannot be denied that in the trial Court a number of applications were filed from time to time in which unfortunately scandalous and scurrilous allegations were made mostly against the present Chief Justice, who headed the trial Bench constituted for the trial of this case in the Lahore High Court. In the course of the hearing in this appeal before us also those allegations were repeated on behalf of the appellant to contend that the entire trial stood vitiated because of bias in the learned Chief Justice. At another place in this judgment I have dealt with this plea of bias raised on behalf of the appellant, which has been overruled by me as baseless. The blasphemous allegations attributing bias and motive, made in the face of tithe Judge of a superior Court constitute one of the worst forms of contempt, and these were repeated with impunity in this case to defame the Judge and the Court, with scant regard for the dignity of the law and its enforcing agency, viz. the Court. In the course of N this trial the appellant, who was no less a person than the former President and Prime Minister of the country, appears to have adopted an openly hostile attitude in Court and became defiant towards the end, and it became all the more arduous for the Court to conduct the trial. He appears to have further developed a strategy, and started indulging in vilification and insults towards the Court and wanted publicity for it, without caring for his own defence in the case. Indeed the unfortunate situation thus created became all the more embarrassing to control at the trial.
369. It appears, therefore, that from 25th of January 1978, onward the Court had a genuine and reasonable apprehension that the appellant was out to further indulge in scurrilous and scandalous allegations against it and wanted publicity for it. This was likely to result in undermining the dignity of the High Court and shake the confidence of the people in it. In these circumstances, the Court was left with no alternative but to hold further proceedings in camera in the larger interest of the administration of justice; and this it had power to do, in the exercise of the discretion vested in it under the Proviso to section 352 of the Code.
370. On 25th of January 1978, the Court also observed that a few of the supporters of Zulfikar Ali Bhutto appellant were found shouting and yelling in the corridor outside the Chief Justice’s Chamber. This raised a further apprehension in the mind of the Court about a likely disturbance in the proceedings of the Court, if held in open; and for this additional reason as well the Court was justified in holding the further proceedings in the case in camera. Before us the learned counsel vaguely expressed his doubt about the genuineness of this last mentioned order passed on 25-1-1978, but this appears to be a wholly unjustified allegation, and does not deserve any serious consideration.
371. Before concluding discussion of this matter, it would not be out of place to repeat that the entire prosecution evidence in this case was recorded in open Court. Appellant Zulfikar Ali Bhutto did not produce any evidence in defence. Most of his own examination as an accused under section 342, Cr. P. C. was also conducted in open Court. In these circum-h stances, I am satisfied that the alleged irregularity, if any, in the mode of the trial by holding it partly in camera has not in fact occasioned any failure of justice or prejudice to the appellant in his trial or defence. The objection is thus without any force and is hereby repelled.
372. One last pint may also be noticed. While commencing the discussion of the validity of camera proceedings held by the trial Court, it has been stated that one of the grievances of the appellant has all along been that while publicity was given to wild statements and allegations made by the prosecution witnesses and the confessing accused against him, but similar publicity was denied when the time came for him to state the reasons for his false implication in the case, and to expose the biased attitude of the Court. For detailed reasons already stated in the preceding paragraphs, I have come to the conclusion that, in the circumstances, the High Court was justified in holding this part of the trial hi camera, and also in hearing Zulfiqar Ali Bhutto’s miscellaneous application in chambers, as this was necessary in the interest of the administration of justice itself, so that High Court was not subjected to scurrilous scandalisation.
373. As far as .the proceedings conducted in open Court are concerned, the appellant can have no grievance if they were reported in the Press or otherwise. It seems to me, however, that publicity ought not to have been given to the statements made by the other co-accused during the time when the proceedings were being held in camera. It is possible, as suggested by the learned Special Public Prosecutor, that those statements were allowed to be published .for the reason that the camera proceedings had not been necessitated on account of anything done or intended to be done by the co-accused. Whatever the reason, it would have been better to avoid even the publication of these statements, which were also recorded in camera. The fact, however, remains that the publication of the statements made by the co-accused during camera proceedings does not, in any manner, detract from the necessity which was clearly made out for excluding the public from this stage of the trial, once appellant Zulfikar Ali Bhutto had notified the Court of his intention to repeat the allegations he had already made and publicised in successive petitions against the presiding Judge of the trial Bench.
Examination of Evidence
374. Having disposed of the several contentions raised by Mr. Yahya Bakhtiar as to the admissibility of certain pieces of evidence, exclusion by the High Court of relevant and admissible evidence, as well as the alleged illegalities committed by the High Court in the conduct of the trial, and other connected matters, I now proceed to examine the evidence brought on the record in the light of the principles and considerations as brought out in the preceding paragraphs. As the mainstay of the prosecution is the evidence of the two approvers, namely, Masood Mahmood (P. W. 2) and Ghulam Hussain (P. W. 31), it will be useful to given a brief resume of their depositions at this stage, so as to bring out their salient points.
APPROVER MASOOD MAHMOOD’S VERSION
375. After giving a history of
his career in the police service of Pakistan since 1948, Masood Mahmood stated
that, while serving as Managing Director of the Board of Trustees of the Group
Insurance and Benevolent Funds in the Establishment Division, in Grade 21, he
was asked one day by the Establishment Secretary, Mr. Vaqar Ahmad, to call on
the then Prime Minister Zulfiqar Ali Bhutto on the morning of the 12th of April
1974, and to see him first before meeting the Prime Minister. Mr. Vaqar Ahmad
told the witness that the Prime Minister was going to make an offer of
appointment to him which he must accept, in view of the state of his health and
family circumstances, and the fact that the officers of Grade 21 and above
could be retired from service at anytime by the Government. During his
interview with the Prime Minister, the latter offered him the post of Director-General of the Federal
Security Force, which had fallen vacant on the retirement of the previous
incumbent Malik Haq Nawaz Tiwana. The Prime Minister advised Masood Mahmood to
keep on the right side of the Establishment Secretary. He also discussed the
nature of the new assignment, saying that he wanted the witness to make the Federal
Security Force into a deterrent force so that the people of
376. Masood Mahmood assumed charge of the office of Director-General of the Federal Security Force on the 23rd of April 1974, but before that date he was visited several times by the Prime Minister’s Chief Security Officer, Sated Ahmad Khan (P. W. 3), and his Assistant, the late Abdul Hamid Bajwa, for the purpose of ensuring that he would not refuse the offer. According to Masood Mahmood, both these gentlemen made it clear to him, in their own way, that a refusal on his part might endanger his life and career. The witness stated that the Prime Minister gave to him an oral charter of his duties to the effect that he wanted the force to be available to him for political purposes, that is, for breaking up of political meetings; harassment of personages both in his own party and in the opposition; and induction of plain clothed persons in public meetings addressed by him to swell the crowd. He was also directed to brief the Prime Minister about the law and order and the political situation in the country, and also to keep him informed about the activities of members of his own party, including some of his ministers, and those in the opposition. He was further asked to be present in the National Assembly whenever the Prime Minister was attending its session or was otherwise in his chambers in the National Assembly; and also at places where the Prime Minister went on tour.
377. Masood Mahmood had been in his new office for about a month or so, when he witnessed the unpleasant exchange of words in the National Assembly between the Prime Minister and Ahmad Raza Kasuri (P. W. 1) on the 3rd of June 1974, during the course of which the Prime Minister had asked Kasuri to keep quiet, adding that he had bad enough of him and would not tolerate his nuisance any more. A day or two later the Prime Minister sent for Masood Mahmood and told him that be was fed up with the obnoxious behaviour of Ahmad Raza Kasuri, and that Mian Muhammad Abbas accused knew all about his activities. He also told him that Mian Muhammad Abbas had already been given directions through the witness’s predecessor to get rid of Ahmad Raza Kasuri. The Prime ‘Minister went on to instruct the witness that he should ask Mian Muhammad Abbas to get on with the job and to produce the dead body of Ahmad Raza Kasuri or his body bandaged all over. He further told Masood Mahmood that he would hold the latter personally responsible for the execution of this order.
378. According to Masood Mahmood, he protested against this order saying that it was against his conscience and also against the dictates of God, but the Prime Minister lost his temper and shouted that he would have no nonsense from him or Mian Muhammad Abbas, and added “you don’t want Vaqar chasing you again, do you?”.
379. After this interview, the witness called Mian Muhammad Abbas to his office, and repeated to him the orders given by the Prime Minister. Mian Muhammad Abbas was not the least disturbed, and told the witness that he need not worry about it, and be would see that the orders were duly executed. He also said that he had been reminded of this operation by the witness’s predecessor more than once. Masood Mahmood stated that he was reminded and goaded again and again about the execution of this order by the former Prime Minister, both personally as well as on the green telephone, and also through Sated Ahmad Khan (P. W. 3)..
380. Continuing, Massood Mahmood
stated that in July, 1974, during his visit to Quetta, the Prime Minister had
asked him to take care of Ahmad Raza Kasuri who was likely to visit Quetta,
and, accordingly, the witness had told M. R. Welch (P. W. 4), then Director,
Federal Security Force at Quetta, that some anti-State elements, including Ahmad Raza Kasuri, were likely
to be in Quetta, and they should be got rid of. He told Welch that Kasuri was
delivering anti-State
speeches and was doing damage to the interests of
381. In August, 1974, Ahmad Raza
Kasuri’s car was fired at in
382. Coming to the present
incident, Masood Mahmood stated that he was in
383. Masood Mahmood asserted at the trial that he or his family had no grudge or motive against the deceased Nawab Muhammad Ahmad Khan or his son Ahmad Raza Kasuri, and that, in fact, his father and the deceased had been great friends, since the witness himself hailed from Kasur.
384. After narrating these and other details of the conspiracy resulting in the murder of Nawab Muhammad Ahmad Khan, Masood Mahmood explained the circumstances leading to his confessional statement, the correctness of which he re-affirmed at the trial. He stated that he was taken into protective custody in the early hours of the 5th of July, 1977, on the proclamation of Martial Law in Pakistan; that he addressed a letter to the Chief Martial Law Administrator on the 14th of August, 1977, in which be made a clean breast of the misdeeds of the. Federal Security Force conducted by him under the orders of the former Prime Minister; that after his interrogation by the Federal Investigation Agency he made a confessional statement before a Magistrate at Islamabad on the 24th of August, 1977; that he was granted pardon by the District Magistrate of Lahore on his application dated the 7th September, 1977; and after the grant of pardon he made a detailed statement under section 164 of the Criminal Procedure Code.
APPROVER GHULAM HUSSAIN’S TESTIMONY
385. Approver Ghulam Hussain (P.
W. 31) deposed at the trial that after his retirement as Naib Subedar from the
Army, where he served for 14 years as a commando, he joined the Federal
Security Force on the 3rd of December, 1973, in the rank of a Sub-Inspector, from which post
he was later promoted to the rank of an Inspector. His paper posting was in
Battalion No. 5 stationed at
386. Ghulam Hussain stated
further that in the end of May, 1974, he was summoned by Mian Muhammad Abbas to
his office and asked about the methods that lie would adopt for kidnapping or
murdering a person. He was directed to reduce his answer into writing. He
complied with the orders, and Mian Muhammad Abbas kept the paper with him. Two
or three weeks later he was again summoned by Mian Muhammad Abbas and asked
whether he knew Ahmad Raza Kasuri. On his replying in the negative, Mian
Muhammad Abbas ordered him to find out, and for this purpose gave him several
addresses where he could possibly contact Ahmad Raza Kasuri; and Head Constable
Zaheer was deputed to assist him in this behalf. Mian Muhammad Abbas also
placed a jeep and a driver at the disposal of the witness and asked him to use
the jeep after changing the number plates. The witness was once again called by
Mian Muhammad Abbas in the beginning of August, 1974, and asked about the
result of his efforts in identifying and locating Ahmad Raza Kasuri. On hearing
from Ghulam. Hussain that he bad identified Ahmad Raza Kasuri and also located
his residence in
387. Giving further details, Ghulam Hussain stated that his Director Mian Muhammad Abbas gave him a chit and directed him to obtain a sten-gun, a pistol, two magazines and ammunition from Fazal Ali (P. W. 24), but the latter refused to honour the chit without making an entry in the relevant register. Thereupon the witness reported the matter to Mian Muhammad Abbas, under whose orders Fazal Ali was called to his office and told to issue the arms and ammunition without making any entry in the register, and warned that disobedience of the order would land him in trouble. Thereupon Fazal Ali handed over to the witness a step-gun with two magazines, a pistol with two magazines and ammunition for both the weapons. Tile witness gave a receipt to him and took these things to the Commando Camp, but Fazal Ali did not make any entry in the register kept at the Armoury.
388. Ghulam Hussain was again called by Mian Muhammad Abbas to his office on the :0th of August, 1974 and reprimanded for not performing the task assigned to him, although Mian Muhammad Abbas was getting him promoted as Inspector. He told witness that the Director-General Masood Mahmood was unhappy as the Prime Minister had started abusing him because of this procrastination. Mian Muhammad Abbas threatened him that any further inaction on his part might endanger his own life. Ghulam Hussain noticed that during those days Mian Muhammad Abbas had also detailed another team with instructions to do away with the witness in case he failed to perform the task assigned to him, and then proceed to perform it.
389. On the morning of the 24th
of August, 1974, Ghulam Hussain established telephonic contact with Ahmad Raza
Kasuri at his residence in
390. He then saw the car of Ahmad Raza Kasuri emerging from the M. N. A. Hostel, and heading towards his residence. Ghulam Hussain directed. Mian Khan driver of the jeep to follow, and ordered Mulazim Hussain who was armed with a sten-gun and two fully loaded magazines, to fire in the air when directed. The witness was himself armed with a pistol. On reaching an intersection in the road he asked the driver to take the jeep to the left and ordered Mulazim Hussain to open fire through the rear window of the jeep. Mulazim Hussain complied with the orders, and when he fired the first burst, Ahmad R.aza Kasuri glanced towards the jeep, and sped on. On returning to the Headquarters of the Federal Security Force he was met by Assistant Director Ch. Nazir Ahmad, who taunted him on having failed to hit Ahmad Raza Kasuri from a distance of 30 yards despite his being a Commando. Mian Muhammad Abbas also questioned him about the details of the incident, and reprimanded him in the same terms. He told the witness that his failure to complete the mission had exposed the whole thing, and this had made the Prime Minister very angry. He directed Ghulam Hussain to remain on the job, but to be cautious.
391. A day or two after this
incident Ghulam Hussain found out that Ahmad Raza Kasuri had gone out of
392. Sometimes later Mian
Muhammad Abbas ordered the witness to depute Head Constables Zaheer and Liaquat
from the Commando Camp to go to
393. At Rawalpindi Ghulam Hussain
reported to Mian Muhammad Abbas that he had located the whereabouts of Ahmad
Raza Kasuri and that his men were watching him. He asked for further orders,
whereupon Mian Muhammad Abbas directed him to take the ammunition from the
Commando Camp and proceed to
394. Ghulam Hussain then deposed
that on reaching
395. The witness then stated that two or three days before the occurrence, while they were going towards Model Town in a jeep without number plates at about 10-00 p. a. they were checked between the canal bridge on the Forozepur Road .:ad the Atomic Energy Centre, by Sardar Abdul Vakil Khan (P. W. 14), who was then Deputy Inspector-General of Police, Lahore. This officer objected to their travelling in the jeep without number plates, and on inquiry was informed by the witness that be was an Inspector in the Federal Security Force and was proceeding towards Walton to one of its Units. The Deputy Inspector-General then spoke to Mr. Irfan Ahmad Malhi, Director, Federal Security Force on the wireless and then allowed the witness to go. Ghulam Hussain stated that he and appellant Ghulam Mustafa were summoned by Mr. Malhi to his house and apprised about the conversation that had taken place between him and the Deputy Inspector-General, who had ordered him not to permit his men to roam about in a jeep without number plates.
396. Having made all these
arrangements with the help of appellant Ghulam Mustafa, the witness,
accompanied by appellants Ghulam Mustafa, Iftikhar Abroad and Arshad Iqbal,
proceeded in a jeep towards the
397. Ghulam Hussain further deposed at the trial that he directed appellant Arshad Iqbal to open fire in the air the moment he saw Ahmad Raza Kasuri’s car coming towards the roundabout, and he ordered appellant Iftikhar Ahmad to open fire at the first car which came before him after Arshad Iqbal had fired in the air. He explained that as Arshad Iqbal was facing the wedding place, people assembled under the Shamianas might be hit if Arshad Iqbal fired at the car. He added that the firing in the air would be warning to appellant Iftikhar Ahmad since he himself could not see the car arriving from the side where the wedding was taking place. Having thus posted appellants Arshad Iqbal and Rana Iftikhar Ahmad at the roundabout, Ghulam Hu’ssain himself started pacing the road which branches off from the road in’ front of the spot where appellant Iftikhar Ahmad was stationed. He heard the sound of firing at about midnight, followed by two more bursts at short intervals. On hurriedly reaching the intersection he saw a car speeding away towards the canal without headlights, and he realised that this must be the car of Ahmad Raza Kasuri, as it was the first car which had passed by him after the first burst was fired. He presumed that the car had not been hit and that Ahmad Raza Kasuri had switched off the lights in order to save his life. The witness proceeded towards the Tomb of Shah Jamal and was soon joined by appellants Arshad Iqbal and Rana Iftikhar Ahmad. He expressed the opinion that the person driving the car did not appear to have been injured. Arshad Iqbal, however, told him that he had fired in the air after correctly identifying the car, and Rana lftikhar Ahmad informed him that he had fired at the first car which came before him after Arshad Iqbal had fired in the air, and that he had correctly aimed at the car before opening fire. On reaching the Headquarters of the Federal Security Force They met appellant Ghulam Mustafa and informed him of the occurrence. They also returned the arms to him. On checking the ammunition, .it was found that 30 rounds had been fired during the incident. The witness put the remaining rounds of ammunition in a cupboard, and handed over the arms to appellant Ghulam Mustafa with instructions to clean them and return them to the Battalion concerned.
398. Next morning, according to
Ghulam Hussain, appellant Ghulam Mustafa rang up the Ichhra Police Station and
learnt that Ahmad Rata Kasuri had been fired at, as a result of which his
father bad been hit and killed. Appellant Ghulam Mustafa tried to contact
appellant Mian Muhammad Abbas on telephone at
399. The witness then allowed the
other accused persons to go to their homes, with instructions that they should
return to
400. After winding up the
Commando Camp, the witness Ghulam Hussain returned to Fazal Ali (P. W. 24) the
remaining ammunition, lice as well as spent, on the basis of the road
certificate Exh. P. W. 24/9. As the number of rounds were short by 51 empties
including the 30 cartridges fired at
401. Ghufam Hussain then stated
that he did not get the entry of his return from
402. It appears that the approver Ghulam Hussain was arrested by the Federal Investigation Agency on the 27th of July 1977, and made a confessional statement before a Magistrate on the 11th of August 1977. He applied for the grant of pardon on the 13th of August 1977, which request was allowed by the District Magistrate of Lahore on the 21st of August 1977, and Ghulam Hussain’s statement as an approver was recorded on that very day. The witness concluded his statement in the High Court by asserting that the firing at Islamabad and at Lahore at Ahmad Raza Kasuri had been made due to pressure and coercion exercised by Mian Muhammad Abbas, and that he himself had no animosity with Ahmad Raza Kasuri nor did he know him.
TEST FOR APPRECIATING EVIDENCE OF AN APPROVER/ACCOMPLICE
403. Before embarking upon a detailed appraisal of the evidence of these two witnesses, it would be useful to state the test which ought to be applied for determining whether a witness is an accomplice, and the principles governing the appraisal of the evidence of such witnesses.
WHO IS AN ACCOMPLICE?
404. First, as to who is an
accomplice. Mr. Yahya Bakhtiar submitted that the term is wide enough to
include all persons who fall in the categories of “ accessories before the fact”
and “accessories after the fact”, as they were in one way or the other
connected with the commission of the crime alongwith the main offender. He next
submitted that, in any case, in the offence of conspiracy an accessory after
the fact was very much an accomplice. if subsequent conduct of the main
offender is to be “ taken into account so as to virtually form a part of the
offence itself. Finally, he submitted that in law there was no bar to the trial
under section 201 of the
405. On behalf of the prosecution, Mr. Batalvi submitted that there was authority for the view that an accessory after the fact may or may not be an accomplice and that the true test for determining whether a person was an accomplice or not was to ascertain whether he was directly or indirectly concerned with, or privy to, the offence which was under trial; and that he must be so placed that he could be tried jointly alongwith the accused, for the same offence. He contended that ordinarily the main offender was not tried under section 201 of the Pakistan Penal Code for concealment or destruction of the evidence of the crime, and, therefore, there could hardly be any question of the joint trial of the main offender alongwith an accomplice, who could be described only as an accessory after the fact.
406. The learned counsel on both
sides have cited at the Bar an exceptionally large number of cases in order to
bring out the true meaning of the term “accomplice”, namely: Bagu and others v.
Emperor (AIR 1925 P C 130), Mahadeo v. The King (AIR 1936 P C 242), Phullu and
another v. Emperor (A I R 1936 Lab, 731 ‘), Govinda Balaji Sonar v. Emperor (A
I R 1936 Nag. 245), Narain Chandra Biswas and others v. Emperor (A I R 1936
Cal. 101), Nga Pauk v. The King (A I R 1937 Rang. 513), In re: Addanki Venkadu
(A I R 1939 Mad. 266). In re: S. A. Sattar Khan and others (A I R 1939 Mad.
283), Kr. Shyam Kumar Singh and another v. Emperor (A I R 1941 Oudh 130),
Jagannath v. Emperor (A I R 1942 Oudh 221), Emperor v.. Percy Henry Burn (41 C
268), Chudo son of Ramadhar and another v. Emperor (A I R 1945 Nag. 143),
Ismail Hassan Ali v. Emperor (A I R 1947 Lab. 220), Nebti Marulal and others v.
Emperor (A I R 1940 Pat. 289), Narayan and others v. State (A I R 1953 Hyd.
161), Anna and others v. State of Hyderabad (A I R 1956 Hyd. 99), Bihar! Mandal
v. State (A I R 1957 Orissa 260), Crown v. Ghulam Rasul and others (P L D 1950
Lab. 129), The State v. Jamalan and others (P L D 1959 Lab, 442), Vemireddy
Satyanarayan Reddy and others v. State of Hyderabad (P L D 1956 S C (Ind.)
280), Ashutosh Roy v. The State (A I R 1959 Orissa 159), Balbir Singh v. The
State (A I R 1959 Pb. 332), State v .Bashmnber Dayal (A I R 1953 Pepsu 82),
Sykes and Director of Public Prosecutions (1962 A C 528), Abdul Monsur Ahmad
and another v. The State (P L D 1961 Dacca 753), Musafar v. The Crown (P L D
1956 F C 140), Ramaswami Gounden v. Emperor (I L R 27
407. A perusal of these judgments makes it clear that the basic definition of the term “accomplice” in all these cases is essentially the same. No doubt in some of the caws the expressions “accessory before the fact”, and “accessory after the fact” have been used, and opinions have been expressed whether the persons falling in these categories are to be regarded as accomplices or not; and although these expressions are occasionally used by Judges and lawyers and test book writers in this part of the world, yet the fact remains that they have not been used and defined in our law. Our Penal Code has attempted to define an abetter in a way so as to include an accessory before the fact; and similarly section 201 of the Code deals with the category of accessories after the fact, without using this expression as such. I would, therefore, prefer to avoid using these terms.
408.’ The position which emerges from an examination of the cases cited at the Bar, and with which I respectfully agree, is that the term “accomplice” has not been defined in the Evidence Act, and should, therefore, be presumed to have been used in its ordinary sense. However, some indication of the N sense in which our criminal law uses this term is available in section 337 of the Criminal Procedure Code, which bears the marginal head “tender of pardon to accomplice” The body of the section lays down that a pardon may be tendered with a view to “obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether, as principal or abettor, in the commission thereof”. It will be seen that, without attempting to give a formal definition of the term “accomplice”, this section has spelt out the elements necessary for treating a person as an accomplice for the purpose of tendering a pardon to him on condition of his making a full and true disclosure of all the circumstances within his knowledge relative to the offence and the offenders involved therein. The section clearly indicates that an accomplice must be a conscious participator in the crime, about which he is required to give evidence.
409. A further indication as to the meaning of the term “accomplice” may be gleaned from the provisions contained in section 201 of the Pakistan Penal Code ; which prescribes punishment for persons generally described as “accessories after the fact”. This section lays down that;---
“Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believe to be false ……….”
This section also makes it an essential ingredient of the offence that the person concerned should either have knowledge or reason to believe that an offence has been committed, and then he takes any steps to do away with the evidence with the intention of screening the offender from legal punishment or with that intention gives information which he knows or N believes to be false. In other words, the presence of guilty intention and knowledge has been made an essential ingredient of the offence made punishable under section 201 of the Pakistan Penal Code.
410. An accomplice, therefore, means a guilty associate or partner in crime, or, who in some way or the other, whether before, during or after the commission of the offence, is consciously connected with the offence question, or who makes admissions of facts showing that he bad a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. In other words, an accomplice is a paraceps criminis, who is consciously so connected with the criminal act done by hi confederate, that he on account of the presence of the necessary mens rea, and his participation in the crime in some way or the other, can be tried alongwith that confederate actually perpetrating the crime. A witness who could not be so indicted on account of the absence of mens pea cannot be held to be an accomplice.
411. Whether a person is or is not an accomplice depends on the facts of each particular case, considered in connection with the nature of the crime. The burden of showing that a witness is an accomplice lies ordinarily upon the party alleging it, namely, the accused, though it is certainly the duty of the prosecution to bring all relevant facts having a bearing on this aspect of the matter to the notice of the Court.
412. Under section 133 of the Evidence Act an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, this section is to be read alongwith illustration (b) to section 114 of the same Act, both being parts of the same subject. In view of the presumption mentioned in this illustration, namely, that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, the Courts have adopted a rule of caution, which has almost acquired the status of a rule of law, that as the evidence of an accomplice is tainted, it generally requires corroboration. The rule being essentially a rule of caution, the meaning of the term “accomplice” must not be unnecessarily enlarged so as to exclude, or discredit, the evidence of persons who may be in the best position to disclose facts relevant to the crime, and yet not be consciously concerned in the crime in such a manner that they could be indicted jointly with the main accused. Section 114 of the Evidence Act itself also contemplates a situation where evidence of accomplices can be accepted without insisting on ,corroboration, as, for instance, where their accounts tally without there being the possibility of a previous concert between them as to their statements.
413. In these circumstances, I consider that it leads to confusion of thought to treat a witness as “practically an accomplice”, or “no better than an accomplice”, even though he could not be indicted jointly with the main accused, on account of his not being consciously concerned in the crime perpetrated by the actual culprits. If a witness is not an accomplice in the sense indicated above, namely, on account of the absence of mens rea then the real question is not of requiring corroboration of his evidence, but of the degree of credit to be attached to his testimony, depending on all the facts and circumstances of the particular case. In other words, he has then to be judged as any other witness, without introducing an artificial’ requirement of corroboration of his evidence by applying the rule contained in illustration (b) to section 114 of the Evidence Act.
414. It is also to be noticed that where a witness was not an accomplice in the crime for which the accused was charged, inasmuch as he had not been concerned in the perpetration of the conspiracy and murder itself, but had consciously done some acts which could bring him within the mischief of section 201 of the Pakistan Penal Code by way of concealment of evidence, etc. to shield the offender, he could not be tried for offences of conspiracy and murder, as the offence falling under section 201 is independent of the, offence of murder. There is no doubt a difference of opinion between the various High Courts in the Sub-Continent on the question whether a person charged only under section 201 of the Penal Code could be tried jointly alongwith the offenders charged for the main offences of conspiracy and murder ; but assuming that a joint trial could be held the question would always remain whether the person charged under section 201 of the Penal Code had the necessary mens rea, as specified in that section.
PRINCIPLES .GOVERNING THE APPRAISAL OF APPROVER’S EVIDENCE
415. Now I turn to the principles governing the appraisal of the evidence of witnesses falling in the category of accomplices or approvers. It has already been stated that although under section 133 of the Evidence Act an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice, yet in view of the presumption mentioned in illustration (b) to section 114 of the same Act, namely, that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars the Courts have adopted a rule of caution which has almost acquired the status of a rule of law, that as the evidence of an accomplice is tainted, it generally requires corroboration. Both sides .are agreed on this proposition, as well as on’ the further propositions that the corroborative evidence, need not by itself be sufficient for conviction ; nor it need concern each and every detail of the approver’s evidence ; yet it must be corroboration in respect of material particulars of the crime, and should connect, or tend to connect, the accused with the crime. There is also no difference between them on the point that corroborative evidence is some additional evidence rendering it probable that the story of the approver is true, and it is reasonably safe to act upon it.
THE PRINCIPLE OF DOUBLE TEST
416. However, Mr. Yahya Bakhtiar
and Mr. Batalvi are in violent disagreement as to the application of what has
been described in some reported judgments as the “double test” for a proper
assessment of the evidence of an accomplice. Relying upon the observations of
the Indian Supreme Court in the case of Sarwan Singh Rattan Singh v. State of
417. Mr. Ijaz Hussain Batalvi, on the other hand, submitted that the theory of double test in relation to the appreciation of an approver’s evidence was misleading, as all that the law required was that such evidence should not be believed unless corroborated in material particulars, but there was no requirement for the application of a so-called double test, as in the very nature of things, an accomplice was a self-confessed criminal and a man of depraved character, and it would, therefore, be unrealistic to try to ascertain that he was, indeed, a reliable witness. In support of these submissions Mr. Batalvi referred us to Major E. G. Barsay v. State of Bombay (A I R 1961 S C; 1762 ). in which, according to him, the theory of double test previously propounded by the Indian Supreme Court was sought to be explained away.
418. It is true that the phrase “double test” appears to have been used for the first time by the learned Judges of the Indian Supreme Court in the case of Sarwan Singh Rattan Singh. While discussing the principles applying to the appraisal of the evidence of an accomplice, the learned Judges observed-that;
“But it must never be forgotten that before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver’s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still. remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.”
419. In the case relied upon by Mr. Ijaz Hussain Batalvi, namely, that of Major E. G. Barsay a Division Bench of the Supreme Court, while referring to the earlier cast observed that----
“This Court could not have intended to lay down that the evidence of an approver and the corroborative pieces of evidence should be treated in two different compartments, that is to say, the Court shall have first to consider the evidence of the approver de hors the corroborative pieces of evidence and reject it if it comes to the conclusion that his evidence is unreliable ; but if it comes to the conclusion that it is reliable then it will have to consider whether that evidence is corroborated by any other evidence. This Court did not lay down any such proposition. In that case it happened that the evidence of the approver was so thoroughly discrepant that the Court thought that he was a wholly unreliable witness. But in most of the cases the said two aspects would be so interconnected that it would not be possible to give a separate treatment, for as often as not the reliability of an approver’s evidence, though not exclusively, would mostly depend upon the corroborative support it derives from. other unimpeachable pieces of evidence.”
420. This matter again came up before that Court in the case of Lachhi Ram, and, without referring to the case of Major E. G. Barsay, the learned Judges reiterated the theory of double test propounded in the case of Sarwan Singh Rattan Singh. The same rule was applied in the subsequent cases of Piara Singh and Babuli Narain. In several cases decided by the Indian High Courts, this rule was naturally followed.
421. It is, however, interesting to observe that although the specific expression “double test” seems to have been used for the first time in the case of Sarwan Singh Rattan Singh mentioned above, yet in essence the rule was enunciated, more than 60 years ago, by the learned Judges of the Lahore High Court in the case of Balmokand v. Emperor, when they observed that in iegard to an approver the questions that arise are: “Is his story substantially’true and is it materially corroborated? Apart from corroboration by independent evidence, does it contain in itself intrinsic indication of its truth”. Again in Chatru Malak v. Emperor it was observed that in regard to an approver the questions for decision are: firstly whether the approver’s story is acceptable as substantially true as a whole; and secondly, whether there is other sound evidence corroborating it in respect of each of the accused.
422. More recently in the case of Dr. Muhammad Bashir, this Court has expressed the rule as under;
“As a rule of prudence, which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of an approver, who is a self-confessed criminal, having betrayed his former associates tinder the temptation of saving his own skin. Suffering from this stigma and marked depravity of character, an approver’s evidence cannot be viewed without natural reaction of distrust and incredulity His evidence must first be tested on its basic probabilities or improbabilities like the evidence of any other witness, and mote strictly so to his case, because it is the statement of a person of suspicious’ credentials. His evidence needs corroboration for the simple reason that it cannot be accepted without mental reservation and distrust, and it must, therefore, gather support from other sources to induce-faith in its veracity. The corroboration, which is, thus, needed, must confirm in material particulars not only that the crime has been, committed, as alleged by the approver, but also that the accused concerned has, or have, committed it. The type of corroboration needed must differ with different cases, but such corroboration, although i not required to be adequate and sufficient by itself to prove the charge, must tend to show a strong link between the crime and its perpetrators, as alleged by the approver. It often happens that an approver, who has polluted his own hands in the crime, is ready with an imaginative or tutored story to explain the crime owned by him, and substitutes an innocent person to shield the really guilty for his own ulterior interest. Basically, therefore, the intrinsic worth of the approver’s testimony must first be judged. Before the Court reaches the stage of considering the question of corroboration the first and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this (question is against the approver, then there is an end of the matter. An approver’s evidence has to satisfy a double test. His evidence must first show that he is a reliable witness. If this is test satisfied, then the second test has to re applied, namely, as to whether it has received sufficient corroboration. The latter is a special test, which has to be applied in the case of tainted evidence like that of an approver.”
423. Having stated the rule thus, the learned Judges proceeded to examine the evidence of the approver as well as the corroborative evidence relied upon by the prosecution, and came to the conclusion that “The evidence of the approver is wholly unworthy of credit, not only because of its legal infirmity as the accomplice’s testimony, but also because of its inherent improbabilities. The corroborative pieces of evidence, which have been used in support of it, as described above, individually or collectively, do not at all, to my mind, serve to advance the approver’s testimony and to strengthen the prosecution case in any manner.”
424. I am in respectful agreement with the rule laid down in Dr. Muhammad Bashir’s case by four learned Judges of this Court, and only wish to add that when the qualifying phrase “a reliable witness” is used in relation to an accomplice, the reference obviously is not to his moral character and dependability, as the Courts are well aware that he is a self-confessed criminal, having betrayed his former associates under the temptation of saving his own skin; and it is precisely for this reason that special care has to be taken in the matter of the appraisal of his evidence. The intention, therefore, underlying the first test is to determine Whether his evidence is probable and natural, in the circumstances of the case, with the result that he can be treated as a reliable witness, and his evidence safely acted upon, if the requisite corroboration is forthcoming; or whether it suffers from such infirmities and improbabilities that it can be said to be lacking in intrinsic worth. In the latter case, the question of seeking corroboration would hardly arise.
APPRAISAL OF MASOOD MAHMOOD’S EVIDENCE
425. In the light of the principles stated above, and the detailed. submissions made in this behalf by the learned counsel for both sides I now proceed to consider whether the evidence of Masood Mahmood, former Director-General of the Federal Security Force, is such as can be accepted and safely acted upon, provided the .requisite corroboration is available on the record; or is it of such an unreliable and improbable nature” lacking intrinsic worth, that the question of seeking corroboration could hardly arise.
426. Even though Masood Mahmood,
in his capacity as an approver, is a self-confessed criminal, having betrayed his former associates
under the temptation of saving his own skin, and can thus be said to be
suffering from a marked depravity of character, yet certain essential facts
about his service career and the special position he held under appellant
Zulfiqar Ali Bhutto need to be stated, so that the value to be attached to his
testimony can be assessed in its proper perspective. He joined the Police
Service of Pakistan (P. S. P.) in September 1948, and after completing his
training he served both in East and
427. It was at this juncture in
his career that he was selected by the then Prime Minister Zulfiqar Ali Bhutto
to head the Federal Security Force as its Director-General. There has been considerable cross-examination of Masood
Mahmood, on behalf of appellant Zulfiqar Ali Bhutto, to establish that Masood
Mahmood had tried very hard to obtain this coveted job by approaching the Prim:
Minister through Mr. Qamar-ul-Islam (at present serving
as Ambassador abroad), Mr. Aziz Ahmad (then Minister of State for Defence),
Abdul Hafeez Pirzada (then a Federal Minister), and perhaps also through Begum
Nusrat Bhutto with whom contact was supposed to have been established by Mrs.
Masood Mabmood. It appears that this line of cross-examination was adopted to negative an assertion made by
Masood Mahmood in his examination-in-chief that he was advised
by the Establishment Secretary as well as by the Prime Minister’s Chief
Security Officer (Saeed Ahmad Khan P. W. 3) and the latter’s Assistant (the
late Abdul Hameed Bajwa), not to refuse this appointment, as such refusal might
be harmful for his service career and might also endanger his life. During the
course of his oral address in this Court appellant Zulfiqar Ali Bhutto asserted
that he had selected Masood Mahmood for the post of Director-General of the Federal
Security Force in view of his good service record as an efficient and competent
police officer. This assertion was made by the appellant in spite, of the fact
that on his behalf questions had been asked in cross-examination to discredit Masood Mahmood by alleging that
he was responsible for firing on students during the language riots in Dacca
(in East Pakistan) when he was Additional Superintendent of Police; that he was
responsible for maltreating the wife of one Commander Ehrat of the Pakistan
Navy when he was Superintendent of Police in Karachi; and that he had acquired
the reputation of being a conspirator and an instigator. It seems to me that
this kind of acrimonious cross-examination
cannot derogate from the fact that Masood Mahmood was selected by appellant
Zulfiqar Ali Bhutto for an important assignment, and that he continued to enjoy
the confidence of the former Prime Minister from the date he took over this
assignment on the 23rd April 1974, to the date of the proclamation of Martial
Law, namely, the 5th of July 1977. Whether the selection was made by the Prime
Minister on the basis of the good service record of Masood Mahmood, or on the
basis of recommendations made by any of the persons mentioned above, Masood
Mahmood did, indeed, become an important official in the Federal Government
enjoying full confidence of the Prime Minister, and being in constant’ and
direct touch with him. It is not denied by the defence that he was, indeed,
present at most places in
428. The defence also brought out
several facts to show that Masood Mahmood was given a favourable treatment by
the Prime Minister, throughout his tenure of office as Director-General of the Federal Security
Force. He was allowed to go abroad several times on official business as well
as for medical treatment, and the expenses of his wife were also paid by the
Government. The Government also paid for the purchase of very expensive
equipment containing a combination of eye glasses and a hearing aid, consequent
upon a mild stroke which he suffered in 1976 while being present in Ziarat, in
the
429, All these facts go to show
that up to the time of the overthrow of the former Prime Minister by the
Martial Law regime, Masood Mahmood continued to enjoy a special position in the
Federal Government, in spite of the assertions made by him at the trial that he
suspected that after the escape of Ahmad Raza Kasuri from assassination at
Lahore on the 11th of November 1974, attempts were made to poison his food
during his stay at Chamba House, Lahore or to kidnap his children from the
Aitchison College, Lahore. The question, therefore, is whether Masood Mabmood
has now concocted the whole story about the alleged conspiracy to kill Abmad
Raza Kasuri under some extraneous pressure brought to bear upon him since the
proclamation of Martial Law in
CRITICISM OF MASOOD MAHMOOD AND HIS EVIDENCE
430. It was submitted by Mr. Yabya Bakhtiar, learned counsel for Zulfiqar Ali Bhutto, that Masood Mahmood had deposed falsely against the former Prime Minister on account of pressure brought to bear upon him by the Martial Law authorities, who had taken Masood Mahmood into protective custody, even though he was neither a Government Minister nor a political leader of the Opposition; that Masood Mahmood was the only civilian official taken into such custody during which he was interrogated by several teams of military officers appointed by the Martial Law regime to inquire into the affairs of the Federal Security Force; and that he was obliged to implicate Zulfiqar Ali Bhutto falsely when he was brought under pressure on disclosure of allegations made by certain officials of the Federal Security Force, including appellant Ghulam Mustafa, that the Federal Security Force had arranged through a paid agent, named Riaz, to explode a bomb at the Lahore Railway Station in March 1975, on the occasion of the arrival of the Chief of the Tehrik-e-Istaqlal Party, namely, Air Marshal (Retd.) Asghar Khan, and that Masood Mahmood had been instrumental in saving the aforesaid Riaz from prosecution even though he had been caught red-handed at the spot. The learned counsel further contended that this particular case was still pending, and there might be other cases as well regarding alleged misdeeds of the Federal Security Force, involving its Director-General Masood Mahmood, who was, therefore, under compulsion to save himself in those cases as well. Mr. Yahya Bakhtiar next submitted that there was evidence to show that a cousin and brother-in-law of Masood Mahmood, known by the name of Seth Abid, had absconded from Pakistan during the time of appellant Zulfiqar Ali Bhutto, as certain serious cases of smuggling etc. bad been registered against him, but he reappeared in Pakistan in September 1977, and had re-established himself in business, thus showing that the Martial Law authorities had offered Seth Abid’s freedom as an inducement to Masood Mahmood. He finally contended, in this behalf, that Masood Mahmood had yet not been released from custody even though he bad already given evidence during the trial of this case as an approver, and this circumstance tended to show that Masood Mahmood continued to be under the influence and pressure of the Martial Law authorities even to this day. The learned counsel also made a grievance of the fact that Masood Mahmood had not yet been dismissed from service, in spite of being a self-confessed conspirator and a murderer, and still continued to be in service although under suspension, with prospects of full re-instatement.
431. It is true that Masood Mahmood was, indeed, taken into custody by the Martial Law authorities on the 5th of July, 1977, but it is not correct to say that he was the only civilian official who was detained in this manner. It has come out in evidence, and I think the Court can also take judicial notice of the fact, that certain other police officers like Rao Abdul Rashid, former Inspector-General of the Punjab and later a Special Security Assistant or Secretary to the former Prime Minister, as well as the former Director of Intelligence Bureau (Mr. Muhammad Akram Shaikh), Saeed Ahmad Khan, Chief Security Officer to the Prime Minister, and possibly the former Establishment Secretary Mr. Vaqar Ahmad were also similarly detained. There may be some other officials also in this category, but the names I have just mentioned, frequently cropped up during the arguments in this Court. It, therefore, appears to me that no special inference can be drawn from the mere fact that Masood Mahmood was taken into custody on the proclamation of Martial Law.
432. From the testimony of Masood Mahmood, as well as the questions asked from him in cross-examination on behalf of Zulfiqar Ali Bhutto, and the confessions and statements made during the trial by the confessing accused before and during the trial, and a previous statement made by appellant Mian Muhammad Abbas before an inquiry team set up by the Martial Law authorities, and brought by him on the record as Exh. D. W. 1/1 through Muhammad Amin (D. W. 1), it does appear that the Federal.
Security Force, operating under Masood Mahmo,od, was suspected of being involved in various illegal episodes ; and accordingly it is possible that the Martial Law authorities may have set up teams to interrogate Masood Mahmood and other officials of the Federal Security Force in this connection. In fact, the submissions made by Mr. Yahya Bakhtia: himself go to show that there were, indeed, allegations of illegal activities on the ‘ part of the Federal Security Force, one such incident being the explosion of a bomb at Lahore Railway Station as mentioned above. In these circumstances I am not persuaded that the detention and interrogation of Masood Mahmood in connection with these allegations would necessarily lead to the inference that he had been pressurised to give false evidence in the present case so as to implicate the former Prime Minister.
433. Masood Mahmood admitted that
Seth Abid was, indeed, his cousin and also his brother-in-law,
being married to his step-sister,
but he denied the suggestion that this man had been permitted by the Martial
Law authorities- to
return to Pakistan and saved from prosecution for offences of smuggling etc. on
Masood Mahmood agreeing to give false evidence against Zulfiqar Ali Bhutto. In
fact, Masood Mahmood asserted that he had not at all met Seth Abid since his
return to
434. The reasons for the continued detention of Masood Mahmood do not appear on the record, but from the facts elicited by the defence, and, in fact, made use of by Mr. Yahya Bakhtiar himself, it would appear that Masood Mahmood may yet be facing interrogation, and possible prosecution, in other matters pertaining to the Federal Security Force. -In the circumstances I do not think that any conclusion can be drawn as to the falsity of his evidence in this trial simply for the reason that he continues to be in detention.
SPECIAL POSITION ENJOYED BY MASOOD MAHMOOD UNDER ZULFIQAR ALI BHUTTO
435. Considering the fact that Masood Mahmood enjoyed a specia position under Zulfiqar Ali Bhutto, that he was in close and constant touch with him throughout his tenure as Director-General of the Federal Security Force from 1974 to 1977, that he was shown all kinds of favours and considerations by being sent abroad for official visits and medical treatment, that he was not the only civilian official taken into custody on the proclamation of Martial Law, and that during his long career in the police service of Pakistan he had held important positions involving assumption of responsibility and exercise. of authority, I find it difficult to hold that Masood Mahmood has become an instrument in the hands of the Martial Law authorities to deliberately and falsely concoct the story he has narrated a such length at the trial. A further significant fact which strengthens me in this conclusion is that even if he had any reason to falsely implicate the former Prime Minister, there was no reason for the Martial Law authorities, or for Masood Mahmood himself, to falsely assign an important operational role in this conspiracy to Mian Muhammad Abbas, who was then functioning as one of the Directors of the Federal Security Force, in charge of Operations and Intelligence. Although an attempt was made on behalf of Mian Muhammad Abbas to show that there was some friction between him and Masood Mahmood over certain official matters concerning the administration of the Federal Security Force, yet nothing tangible emerged ; and on the contrary it transpired that, although re-employed after superannuation by Masood Mahmood’s predecessor Malik Haq Nawaz Khan Tlwana, Mian Muhammad Abbas was continued in service, and, in fact, promoted to the rank of Director on a recommendation made by Masood Mahmood, and at one stage even a special cash award was given to him for his good work. Mian Muhammad Abbas himself has complained that Masood Mahmood refused to accept his resignation from the Force, which could not have been the case if Masood Mahmood was ill disposed towards him.
SECTION OF INTRINSIC WORTH OF MASOOD MAHAOOD’S EVIDENCE
436. Let me now examine whether the story narrated by Masood Mahmood as to the mission assigned to him by appellant Zulfiqar Ali Bhutto regarding Ahmad Raza Kasuri is inherently improbable and unnatural, and thus devoid of intrinsic worth. Mr. Yahya Bakhtiar contended that, in fact, the prosecution had given to Masood Mahmood “a role without a role”, as the only thing he was supposed to do was to conveyed a message of the Prime Minister to Mian Muhammad Abbas that he wanted the dead body of Ahmad Raza Kasuri or his body bandaged all over, and to tell Mian Muhammad Abbas to get on with the job which bad already been assigned to him by Masood Mahmood’s predecessor Malik Haq Nawaz Tiwana. He submitted that such a message could easily have been conveyed directly by the Prime Minister to Mian Muhammad Abbas. The learned counsel further submitted that Masood Mahmood’s assertion about the circumstances in which he was compelled or pressurised to accept the post of Director-General of the Federal Security Force was not at all plausible, as it was, in fact, a case of mere transfer from one post to another under the Federal Government, and there was hardly any need for the Establishment Secretary or the Chief Security Officer to the Prime Minister to use the kind of pressure tactics attributed to them by Masood Mahmood ; that, in any case, up to June, 1974, the Prime Minister did not ask him to do anything unlawful ; that it is also unnatural that while at the time the appellant talked to him about the assassination of Ahmad Raza Kasuri, Masood Mahmood was shocked and protested in the name of God and conscience, but later at Quetta, in the month of July, 1974, he adopted an altogether different tone when giving directions to M. R: Welch to take care of Ahmad Raza Kasuri during the latter’s visit to Quetta ; that it cannot be believed that after the incident resulting in the present murder, Masood Mahmood picked up courage to tell the Prime Minister that he would not carry out any such mission in future, and yet he continued as Director-General of the Federal Security Force for nearly three years thereafter ; that if, indeed, Masood Mahmood’s conscience had revolted against these kinds of assignments, then how did be indulge in the various other illegal activities which were allegedly committed by the Federal Security Force in the years 1975 and 1976, including the bomb blast at Lahore Railway Station, the illegal detentions of certain persons in the Dulai Camp in Azad Kashmir area, and throwing snakes at an election meeting addressed by Mr. Ghulam Mustafa Khar, who was at that time estranged with the former Prime Minister and had stood as an independent candidate in a bye-election to oppose the official candidate of the Pakistan People’s Party’; that it is also strange and unnatural that he only had a hunch about the attack launched by approver Ghulam Hussain and his men at Ahmad Raza Kasuri in Islamabad on t he 24th of August, 1971, and did not know at that time that it was a part of the a same conspiracy ; that he cannot be believed when he says that he never made inquiries about the details of the Lahore incident after he heard of it at Multan ; that he had tried to be clever and evasive in admitting about his interrogation by the Martial Law authorities during the earlier period of his detention at Abbotabad ; and that he never tendered his resignation or asked for premature retirement but only for transfer which was refused by the then Prime Minister. The learned counsel also commented adversely on Masood Mahmood’s statement that attempts here made to poison his food during his stay at Chamba House, Lahore, and to kidnap his children from the Aitchison College, Lahore, while, in fact the Prime Minister had entrusted the protection of his own children to Masood Mahmood, who had deputed some personnel of the Federal Security Force for this purpose.
437. Mr. Yahya Bakhtiar’s
contention that the prosecution has assigned to Masood Mahmood “a role without
a role”, is obviously untenable. It is clear that if Masood Mahmood is telling
the truth, then the mission of doing away with Ahmad Raza Kasuri was being
entrusted to him by the former Prime Minister as Director-General of the Federal
Security Force, and he was being made responsible for its execution, in the
same manner as earlier his predecessor Malik Haq Nawaz Khan Tiwana had been
entrusted with it. The mention of the name. of Mian Muhammad Abbas was in that
context, and Masood Mahmood was not being asked to simply convey a message to
Mian Muhammad Abbas without being given any responsibility for the mission
itself: In fact, Masood Mahmood has made it further clear, in cross-examination, by saying that
the earlier conspiracy was between the Prime Minister, Malik Haq Nawaz Khan
Tiwana and Mian Muhammad Abbas, and after his relevant interview with the Prime
Minister he had also been inducted into the conspiracy. Such a statement by the
witness would be completely irrelevant and meaningless if he had only been
assigned the task of conveying the Prime Minister’s message to Mian Muhammad
Abbas to get on with the job. In any case, the evidence of Masood Mahmood about
what he did in
438. As to the circumstances in which Masood Mahmood came to accept the offer of appointment as Director-General of the Federal Security Force, one thing is clear, namely, that he was labouring under the impression at that time that Establishment Secretary, Mr. Vaqar Ahmad was not treating him fairly, and, therefore, he was surprised where he was granted an interview by Mr. Vaqar Ahmad himself and was also directed to call on the Prime Minister. 1t is not easy to understand as to why Masood Mahmood has brought in the names of the Prime Minister’s Chief Security Officer (Saeed Ahmad Khan) and his Assistant (Abdul Hameed Bajwa), as exerting pressure upon him not to refuse the appointment unless, of course, something of the kind did, indeed, happen. I consider, however, that it is not necessary for the Court to dilate upon the matter any further, as the appointment in question was, indeed, an important one, and had to be given to someone whom the Prime Minister could trust, both by reason of his efficiency and loyalty. It is, therefore, possible that the Chief Security Officer to the Prime Minister may have played a role in advising the Prime Minister on these points and in the process he or his Assistant may have met Masood Mahmood before he finally assumed charge of his new job. I am, therefore, unable to agree with Mr. Yahya Bakhtiar that the account given by Masood Mahmood in this behalf must be rejected as false and fanciful.
439. As to the other points made in this behalf by Mr. Yahya Bakhtiar, suffice it to say that in the ordinary course of human conduct it is neither improbable nor unnatural for a person to lodge a protest at, or resist, an improper demand when it is initially made ; but once he has fallen in line, for any reason whatsoever, then to assume his normal manner of approach or behaviour in the matter. It is also not improbable for such a person to be jolted into a realisation at some later stage that he should not have succumbed to the improper demand, pressure or temptation, as” the case may be, and to make a resolve to resist such things in the future. Whether one can stand by s ~h a resolve or not will again depend upon his strength of character and the circumstances in which he is placed. Taking all these things into Consideration, and the fact that a close association of confidence and personal dealings had admittedly come into existence between the Prime Minister and Masood Mahmood, I am of the view that the story narrated by him at the trial cannot be rejected as being improbable or unnatural, and lacking in intrinsic worth. The nature of the relationship which subsequently continued or developed between Masood Mahmood and the former Prime Minister after the present incident is not the fundamental issue under inquiry in this case, and it is relevant only in so far as it tends to throw some light on the events described by him. It is well established that any inaccuracies or exaggerations in peripheral or ancillary matters of this kind cannot be allowed to negative the substance of an approver’s testimony.
ALLEGED FALSEHOOD UTTERED BY MASOOD MAHMOOD
440. Mr. Yahya Bakbtiar then submitted that Masood Mahmood had deliberately given false answers on several points put to him in cross-examination, thus showing that he was, not a truthful witness on whom reliance could be placed by the Court. The learned counsel listed the following items in this connection;
(i) Masood Mahmood gave wrong answers to questions regarding certain information which he supplied to the former Federal Minister Abdul Hafeez Pirzada in December, 1971, soon after the downfall of the former President General Yahya Khan, regarding the possible destruction of some important files by the General or his staff, but later admitted the suggestion put to him;
(ii) He falsely denied knowledge of the sect to which a retired officer by the name of Mr. N. A. Farooqui belonged, although their wives were cousins and the matter was within his personal knowledge;
(iii) He also falsely denied personal acquaintance with the second approver Ghulam Hussain who had been working in the National Assembly and had been closeted with him once for 45 minutes according to the evidence of Assistant Director Ashiq Hussain Lodhi (P. W. 28);
(iv) He has wrongly stated that he met Mian Muhammad Abbas at Rawalpindi soon after his return from Multan on the day of the murder, that is, the 11th November, 1974, as on that day Mian Muhammad Abbas was on tour at Peshawar and returned to Rawalpindi the next day;
(v) He has denied knowledge about the properties held by his cousin and brother-in-law Seth Abid, and also about the favours done to this man by the Martial Law regime ;
(vi) He lied before the Lahore High Court regarding the illegal activities of the Federal Security Force in contempt proceedings taken against him regarding the illegal detention of certain persons in the custody of the Federal Security Force in Dulai Camp in Azad Kashmir ; and
(vii) He wrongly stated that he had a meting with the then Federal Minister Mr. Rafi Roza on the 5th of January, 1977, at Islamabad for discussions on the deployment of the Federal Security Force in the forthcoming elections of March, 1977, as on that date Mr. Rafi Raza was at Larkana in connection with celebrating the birth day of appellant Zulfikar Ali Bhutto.
441. The points mentioned by Mr. Yabya Bakhtiar as instances of deliberate falsehoods stated by Masood Mahmood at the trial do, indeed, show a painstaking scrutiny of the record by the learned defence counsel, but hardly any of them is of material consequence for a proper appraisal of Masood Mahmood’s story regarding the conspiracy, specially when the full replies given by this intelligent and experienced Police Officer to the relevant questions are taken into consideration. A perusal of Masood Mahmood’s evidence shows that it is not possible to brand his replies to the defence questions as established falsehoods. Ordinarily I world have been inclined to dispose of the defence submissions by this boad statement, but in view of the repeated stress laid on these matter by Mr. Yahya Bakhtiar, it would be proper to offer brief comments on each of these points.
442. (i) On pages 93-94 of the record Masood Mahmood has stated that he did not meet Mr. Abdul Hafiz Pirzada in December 1971, in connection with the alleged destruction of files by General Yahya Khan and his associates, but he went on to explain that he had first telephoned to Mr. Pirzada to say that he had reliable information in this behalf, and that it was Mr. Pirzada who bad invited him to come to the Guest House adjoining the Prime Minister House late at night. I find it difficult to describe this reply as a falsehood, as this is indeed, what the defence was itself suggesting to the witness.
443. (ii) It was next argued that even though Masood Mahmud was related to N. A. Farooqi (inasmuch as their relations were cousins inter se), but he pretended ignorance about the fact as to whether the said N. A. Farooqi was an “Ahmadi” of Lahore Sect or not. For this reason, it. was argued, that Masood Mahmud should be held and declared to be an unscrupulous liar, because he could not in the very nature of things have been unaware of so important a matter of his relation or relations. At this stage it is necessary to reproduce a question which Mian Qurban Sadiq lkram, learned Advocate for Mian Muhammad Abbas, accused, put to Masood Mahmud, and the answer given by the witness.
Question.-Is it a fact that you, Mr. N A. Farooqi and Ch. Abdullah, Deputy Director, are Ahmadis of Lahore Sect?
Ans.-I do not belong to the said sect and I am in no position to answer on behalf of the other two.
It is well known that Ahmadis under the Constitution had been declared as non-Muslims. In that background, if a question is asked from a witness the effect of which is to exclude any person from the pale of Islam, it is but discreet on the part of the witness to rather leave it for being asked from the man about whom the question is being asked. Mr. Yahya Bakhtiar laid repeated stress on the allegedly improper answer given by the witness, but, 1 think, that is the circumstances, above explained, the criticism levelled against the witnesses, on this count is not justified. And here I may mention that it was the plea of Mr. Yahya Bakhtiar and Zulfikar Ali Bhutto that no one has a right to pronounce upon or make any declaration about the religion or religious faith of any person as to whether he is a Muslim or not or whether he is a Muslim just in name, which according to them, was a question between the’ person concerned and his God. This plea had been raised by them when they were meeting that part of the judgment of the High Court where it had been observed that Zulfikar Ali Bhutto did not fulfil the merits of an ideal or a perfect Muslim. It is strange that Mr. Yabya Bakhtiar is expecting that Masood Mahmood should have performed that very role, or given a “fatwa” in expressing upon the faith of a person, which he is the same breath says should not have been performed or given by the High Court qua his client.
444. (iii) The third point regarding the personal acquaintance of Masood Mahmud with the second approver Ghulam Hussain arose at the trial during the cross-examination of this witness on behalf of appellant Mian Muhammad Abbas whose counsel Mian Qurban Sadiq adopted the line that Masood Mahmood may have given direct orders to Ghulam Hussain to do away with Ahmad Raza Kasuri. In support of this assertion reliance was placed on a statement made in cross-examination by Assistant Director Ashiq Muhammad Lodhi (P. W. 28) to the effect that approver Ghulam Hussain was posted on duty during the Ahmadi agitation outside the National Assembly, that he was given a special award of Rs. 500 by Director-General Masood Mahmood for his good work in June 1974, in the National Assembly, and that once or twice Ghulam Hussain had been sent for by Masood Mahmood through this witness, and the two were closeted together while the red light outside the office door of Masood Mahmood remained glowing.
445. Masood Mahmood denied any personal acquaintance or direct contact with Ghulam Hussain, stating that the award was made to Ghulam Hussain approver on the recommendation of the Deputy Director concerned, and as Director-General he acted on the notes put up before him by his subordinate officers, and he did not have to see or know the official concerned to whom the award or certificate was being given. It also transpired from document Exh. D. W. 4/4 that Ghulam Hussain was promoted as Sub-Inspector on 15-1-1974 by Mian Muhammad Abbas, and was also given an award of Rs. 75 by him alongwith a commendation certificate for running a Commando Course with great pain and efficiency (vide order Exh. D. W. 4/5). It was further brought out in evidence that Ghulam Hussain was, indeed, interviewed by the Director-General Masood Mahmood on the 20th of July, 1974, for promotion to the rank of Inspector, but Ghulam Hussain stated that he was interviewed alongwith other officers of his rank.
446. Taking all these facts into account, and basing itself on the observations of this Court in Baghu v. The State (PLD 1972SC77), to the effect that “the obliging concession made by formal witnesses in cross-examination cannot be considered to be of any avail”, the High Court as held (in paragraphs 447 and 449 of its judgment) that the concessions made by Assistant Director Ashiq Muhammad Lodhi, who had appeared only as a formal witness to produce a report (Exh. P. W. 22/1) submitted by him alongwith his covering letter Exh. P. W. 2/2-T to the late Abdul Hamid Bajwa, could not prevail against the direct testimony of Masood Mahmood and Ghulam Hussain, and supported by the documents which showed that promotion and award to Ghulam Hussain had been granted by Mian Muhammad Abbas, and not directly by approver Masood Mahmood.
447. I am inclined to agree with the conclusion reached by the learned Judges in the High Court. In view of the difference in rank between the Director-General and, an Inspector of the Federal Security Force, as well as the fact that there is documentary evidence to show that Ghulam Hussain was acting under the directions of Mian Muhammad Abbas, who was the Director in charge of Operations and Intelligence, it is, indeed, not possible to hold that Masood Mahmood was in direct touch with approver Ghulam Hussain and that he has falsely denied his personal acquaintance and involvement with this subordinate officer of the Force.
448. (iv) The next point as regards the inaccuracy as to the date and time at which Masood Mahmood met appellant Mian Muhammad Abbas at Rawalpindi on returning there from Multan after the present murder, rests on the statement made by Masood Mahmood in his examination-in-chief that “soon after ,that when I returned to the Headquarters, Mian Abbas informed me and reported to me that his operation had been successful, but instead of the intended victim his father Nawab Muhammad Ahmad Khan had been murdered at Lahore”. It was submitted by Mr. Yahya Bakhtiar that there was documentary evidence, in the shape of the T. A. Bill of Mian Muhammad Abbas (Exh. D. W. 4/10), to show that Mian Muhammad Abbas returned to Rawalpindi from Peshawar on the 12th of November 1974, and not on the day of the murder i.e. the 11th of November 1974, and, therefore, Masood Mahmood was obviously lying as to his meeting with Mian Muhammad Abbas on the 11th of November 1974.
449. A perusal of the record
shows that Masood Mahmood was cross-examined
at some length on this point, and ultimately he stated that “I do not recall
the exact time when I contacted Mian Muhammad Abbas in this connection after my
return from
450. Now, one thing is clear,
namely, that after hearing of the murder of Ahmad Raza Kasuri’s father during
his stay at
451. (v) The next point mentioned
by Mr. Yahya Bakhtiar concerns Masood Mahmood’s brother-in-law
Seth Abid, who was said to be a fugitive from justice under the old regime, and
had returned to
452. (vi) It was next contended by Mr. Yahya Bakhtiar that Masood Mahmood was a liar because he did not mention the illegal activities of the Federal Security Force in contempt proceedings taken against him by the Lahore High Court regarding the illegal detention of certain persons in the custody of the Federal Security Force in Dulai Camp in Azad Kashmir. It appears from questions put to Masood Mahmood in cross-examination that he was brought before two Judges of the Lahore High Court in two separate contempt cases concerning different detenus, and that in both these proceedings he pleaded guilty and was convicted for contempt of the High Court. It further appears that in the statements made by him before these two learned Judges, namely, Mr. Justice Shafi-ur-Rehman and Mr. Justice Zakiuddin Pal details of all the alleged illegal activities of the Federal Security Force were not recounted by Masood Mahmood, but he is right in asserting, in his answers, that “the very fact that I pleaded guilty to the contempt of Court charge is a proof of the fact that I had made admission about illegal activities of the Federal Security Force. I had also earlier pleaded before his Lordship Mr. Justice Shafi-ur-Rehman”. In the face of this reply the point raised by Mr. Yahya Bakhtiar loses all force.
453. (vii) While describing the activities of the Federal Security Force and its deployment in the four Provinces of Pakistan, Masood Mahmood referred to a meeting held under the’ chairmanship of the former Federal Minister Rafi Raza, on the 5th of January, 1977, and stated that the Minister had direct instructions from the then Prime Minister, and as a result of these discussions the Federal Security Force was redeployed in the four Provinces. In further cross-examination it was suggested to the witness that the meeting could not have been held on the 5th of January, 1977, as on that day Mr. Rafi Raza was in Larkana for the celebration of the then Prime Minister’s birthday. To this suggestion Masood Mahmood replied that “I have already submitted that perhaps it was the 5th and so many meetings were taking place those days, that the date may be a day earlier, but the word Perhaps is there on the record”. The contention of Mr. Yahya Bakhtiar is that while giving his initial answer about this meeting the witness had not used the word ‘perhaps’ and, therefore, he is a liar.’ I regret no such consequence follows. In the first place there is, in fact, no evidence on the record to establish that Mr. Rafi Raza was, indeed, at Larkana on the 5th of January, 1977, and not at Rawalpindi; and in the second place the fact of the meeting itself for the purpose of discussion of the redeployment of the Federal Security Force in anticipation of the forthcoming elections of March, 1977, was not questioned by the defence. It seems to me, therefore, that as the witness was speaking from memory, it is hardly possible to hold that he is a liar if there is a mistake to the exact date of the aforesaid meeting.
454. As a result of the detailed examination of the seven points listed by Mr. Yahya Bakhtiar, I have come to the conclusion that they do not, in- any manner, lead to the inference that Masood Mahmood is a liar, and, therefore, his testimony should be rejected altogether.
ALLEGED OMISSIONS AND CONTRADICTIONS IN MASOOD MAHMOOD’S EVIDENCE
455. Mr. Yahya Bakhtiar finally argued that the evidence of Masood Mahmood suffered from vital omissions and improvements amounting to contradictions, which show-.d that he was not a reliable witness, and that his testimony should be rejected straightaway on this simple ground. In this respect he filed a chart and took us through the aforesaid infirmities one by one in minute details. Mr. Ejaz Hussain Batalvi in reply filed a counter chart explaining each item of objection. I have attended to these matters in detail and my views on the relevant points are as follows:----
(i) Mr. Yahya Bakhtiar has
submitted that while giving evidence in Court Masood Mahmood deposed that “on
the 11th of November, 1974, I was at
This aspect of the matter was put to the witness and his reply on page 118 was “I gave this information in answer to a question here before this Hon’ble Court. I have not said this in the earlier statements”. This is a frank answer, and sufficiently explains the omission. Even otherwise when liaison between Zulfikar Ali Bhutto and Masood Mahmood stands well established on the record, it seems quite natural that Zulfikar Ali Bhutto, who had entrusted this assignment to Masood Mahmood, must have had a talk with him on the subject when the whole plan misfired.
Same is the position about the talk which Zu:ifikar Ali Bhutto bad with the witness when he was called through the A. D. C. There is nothing inherently improbable in the tenor of the talk, and it rather quite fits in with the company in which it was’ made, viz., in the presence of Mr. Sadiq Hussain Qureshi, who was not involved in the conspiracy, and in whose presence only such type of casual observations could be made by the two. Mr. Yahya Bakhtiar submitted that there was no proof that Masood Mahmood went to see the Prime Minister because Manzoor Hussain (P. W. 21) driver had deposed that he did not take Masood Mahmood to any place in his car on that day. The argument is irrelevant because Masood Mahmood had not stated that he went there in his own car and he was not asked as to in which car or conveyance he went to that place.
(ii) It was next submitted that ‘Masood Mahmood has deposed about his meeting with the Prime, Minister in Rawalpindi after both of them came back from Multan, and in which meeting the witness repented and disassociated himself from doing tiny further murders in pursuance of the earlier ear any future similar orders of Zulfikar Ali Bhutto. Mr. Yahya Bakhtiar submitted that this talk of the witness with Zulfikar Ali Bhutto was not contained in any of his previous statements and therefore this was a clear omission amounting to contradiction.
The objection has no force. The answer about this matter was elicited by the defence counsel himself in cross-examination on 25-10-1977. It may, however, be pointed out that the Nadamentals of this matter do exist in both of his earlier statements. As for example in Exh. P. W. 2/4 dated 24-8-1974 in paragraph 16 he stated that “the fact remains that under the specific dir6ctions of Mr. Zulfikar Ali Bhutto, personally, I have been instrumental in defying God. (May He forgive me for taking a valuable human life of Late Nawab Muhammad Ahmad Khan and for. the earlier murderous assault on the life of Mr. Ahmad Raza Kasuri through the operations conducted by Mian Muhammad Abbas and his sub-ordinates)”. Similarly in Exh. P. W. 2/6 (also marked as Exh. P, W. 10/12 page 260 and page 271), he stated that “after the murder of Nawab Muhammad Ahmad Khan, Mian Muhammad Abbas reported to me that his plan had ,worked, although instead of Ahmad Raza Kasuri, the latter ‘s father had been killed. It; is, however, a fact that under the specific orders of Mr. Zulfikar Ali Bhutto, then Prime Minister of Pakistan, I have been instrumental in defying God Almighty (may He forgive me for taking. the valuable life of Nawab Muhammad Ahmad Khan and for the earlier murderous assault on the life of Mr. Ahmad Raza Kasuri, through the operations conducted by Mian Muhammad Abbas and his subordinates)”. In the face of the portions mentioned above, the point, raised by Mr. Yahya Bakhtiar cannot be accepted, especially when the statement made by him at the trial is also borne out by the fact that there is no evidence at all to show that after this murder he took any steps against Kasuri.
(iii) The next omission pointed out is that Masood Mahmood at page 104 of his statement stated that “Immediately after the murder of Nawab Muhammad Ahrpad Khan, when I returned to Headquarters from Multan, Mian Abbas had reported to me that his operation had been successful, but instead of Mr. Ahmad Raza Kasuri, his father had been killed by subordinates of F. S. F. used by Mian Abbas in this operation, but he did not mention any names. He had added that he had arranged the weapons himself used by his subordinates as mentioned earlier. He further told me that the incident of murder of Nawab Muhammad Ahmad Khan had taken place somewhere in Gulberg in Lahore”. It was argued that the witness had not said any such thing in his earlier two statements therefore the aforesaid portion of his statement was a clear omission amounting to contradiction.
The contention has no merit, inasmuch as the substance of this information was contained in the earlier statements as is evident from the portions reproduced in the preceding paragraph.
Mr. Yahya Bakhtiar then argued
that Mian Muhammad Abbas was not in
(iv) It was argued that while appearing as a witness Masood Mahmood had deposed that after he had disassociated himself from any further pursuit of similar heinous murders, attempts were made on his life and threats were held out to him; that attempts were also made to kidnap his children from the Aitchison College, Lahore, and there were repeated attempts at poisoning his food at Chamba House, Lahore; and that his own subordinates seemed to him to have been bought over or won over as he had seen them lurking around, but these complaints were not detailed by Masood Mahmood in any of his two previous statements.
It will be appreciated that these are all matters pertaining to the period after the conspiracy had ended, and after the murder of Nawab Muhammad Ahmad Khan had taken place; and strictly speaking did not relate to the conspiracy and the aforesaid murder; and, therefore, Mr. Yahya Bakhtiar was asked as to what was the importance and necessity of going into such minute details. He submitted that his effort was to show to the Court, that the witness simply lacked in veracity inasmuch as he was making improvements and contradictions in his statement. The reply of the witness was that answers on the above points had been given by him because he was put specific questions on the subject concerned in the High Court, whereas when he made statements before the two Magistrates earlier no such specific and direct questions were put to or asked from him, and hence the said matters did not find any mention in the earlier statements. The explanation seems to be satisfactory and the criticism levelled against the witness in the circumstances is not justified.
(v) It was submitted that Masood
Mahmood has deposed that “after the August 1974, incident of attack on Mr. Ahmad
Raza Kasuri in
(vi) While narrating a talk which Zulfikar Ali Bhutto had with Masood Mahmood the latter had stated at the trial that “the Prime Minister spelt out what he meant by making force a deterrent one by telling me that he wanted the people of Pakistan, his Ministers, MNA. and MPAs. to fear it”. It was submitted that no such thing existed in his previous two statements and hence this amounted to an improvement/contradiction.
The objection is not well-founded. Reference to reorganizing the force has been made in both of his earlier statements, though not in identical terms. 1n paragraph 8 of his statement recorded on 24-8-1977 (Exh. P. W. 2/41, page 82), while referring to these instructions he has stated that the Prime Minister during this meeting had told him that “the image of the FSF created by my predecessor, late Haq Nawaz Tiwana, had become extremely poor due to the mutiny in its ranks in Hyderabad and the FSF had come to be known as the ‘Budha Force’ and gave me directions to re-organize and re-vitalize it”. The same statement was made by him in his statement recorded . on 14-9-1977 after the grant of pardon (Exh. P. W. 2/6-Exh. P. W. 10/12, at page 265 of the Volume of Documents). In his later statement, P. W. 2 had further stated, “it is unfortunate that F. S. F. has been used under the orders and directions of the “P. M.” for political purposes, including harassment to political personages, attempt ,at breakings up public meetings as well as putting plain clothes men of the F. S. F. in the front ranks of some of the public meetings addressed by him” (page 273 of Volume of Documents). In the face of the aforesaid the objection of Mr. Yahya Bakhtiar cannot be accepted inasmuch as in Court, the witness merely amplified what he had earlier stated. It is neither a contradiction nor an improvement.
(vii) Referring to the incident of the 3rd June 1974, in the National Assembly, the witness had stated at the trial that it was a day or two later that be was sent for by the Prime Minister, and given the assignment to get rid of Ahmad Raza Kasuri, but in the two previous statements the witness had only said that the aforesaid talk took place a month or so after his taking over as D. G., FSF Mr. Yahya Bakhtiar argued that the witness had changed the timing of this talk to fit in with the prosecution case.
The objection is not well-founded. The previous statements made by this witness namely Exh. P. W. 2/4 and Exh. P. W. 2/6-Exh. P. W. 10/12 at pages 70 and 270 respectively of Volume of Documents do refer to the matters stated in the objection under consideration. The only point which the witness has clarified is about the exact date when the conversation in question took place. In his earlier statement the witness stated that “it was a month or so after he took over as the D.-G. FSF”, that the said conversation took place. He assumed charge as D.-G., FSF on 23rd April 1974. It is to be noticed that the witness in his earlier statements did not give a specific date, but used the general expression of ‘a month or so’, which obviously did not mean strict 30 days, In his statement in the Court, the witness who had earlier used the expression ‘month or so’ clarified the position and fixed the date as a day or two after 3rd of June 1974. In the circumstances, it is neither an improvement nor a contradiction.
(viii) Referring to the
The objection is not correct.’
The witness in his statement under section 164, Cr. P. C. (Exh. P. W. 2/4, page
91 of Volume of Documents) in paragraph 14, while referring to this incident
had stated: “ . . . . . and even when the then P. M. was camping at
(ix) Reference was then made to certain portions of the statement of Masood Mahmood with regard to the Quetta incident, and his talks and correspondence with Mr. M. R. Welch (P. W. 4), and it was argued that certain documents which bad been proved by M. R. Welch while giving evidence in Court, had not been referred to by Masood Mahmood in his earlier two statements. According to Mr. Yahya Bakhtiar all this amounted to omission and as such “contradiction.”
The contention has no merit. As a matter of fact this aspect of the matter was put to the witness in the form of specific questions, to which he gave specific answers, adding that as these documents were not made available to him in the Magistrate’s Courts, he could not refer to them. However, it may be mentioned that the main point regarding giving of instructions by Masood Mahmood to Welch pertaining to Ahmad Raza Kasuri is available in substance in his earlier statements. The authenticity of these documents has not been questioned, and in these circumstances a grievance merely on the ground that precise reference to the relevant documents was not made earlier when the witness was not confronted with them is not justified. This part of the witness’s statement is thus neither an improvement nor a contradiction.
(x) Attention was next drawn to that portion of the statement of the witness where he had deposed that “after the two hours or so of the interview with the Prime Minister the direction that I carried home was that the F S F was going to be used as an instrument by the Prime Minister for his political purposes, etc.”, and it was argued that no such things were mentioned in the confessional statement dated 24-8-1977. It was further submitted that even though improvement was made in the approver’s statement dated 14-9-1977 yet there too be did not state this as being “the direction that he carried home” after his very first interview with the Prime Minister on 12-4-1974. According to Mr. Yahya Bakhtiar, this amounted to an omission and improvement and contradiction.
The objection is misconceived. There is a clear reference by the witness in his statement dated 14-9-1977 (Exh. P. W. 2/6-Exh. P. W. 10/12), to the unlawful use of the FSF under the specific directions of the appellant. In Court, the witness has referred to the same subject in a different language with more clarity. This is neither an improvement nor a contradiction.
(xi) Learned counsel then referred
to a passage in the statement of Masood Mahmood at page 102 where he deposed in
Court that “At the time when Mian Muhammad Abbas told me about the murder of
Nawab Muhammad Ahmad Khan, he informed me that the attempt on the life of Mr.
Ahmad Raza Kasuri at
(xii) At page 123 of his testimony Masood Mahmood had deposed that “I was directed by the then Prime Minister not to accept instructions of the then Minister of Interior, Mr. Abdul Qayyum Khan”. It was argued that no such statement existed in the previous two statements, and therefore this was an improvement and contradiction. It may be pointed out that this information was provided by the’ witness in answer to a question put to him in the Court. It is clear from Exh. P. W. 2/4 and Exh. P. W. 2/6--Exh. P. W. 10/12, that for revitalizing the Federal Security Force he was under the direct command of the appellant. The statement pointed out above is merely a detail in that connection.”
CONCLUSIONS AS TO MASOOD MAHMOOD’S EVIDENCE
456. After detailed and anxious consideration of criticism levelled by Mr. Yahya Bakhtiar against approver Masood Mahmood, and the evidence given by him at the trial, I have reached the conclusion that the statement made by him is not such as can be said to be lacking in intrinsic worth by reason of any inherent weakness, or suffering from infirmities like omissions, contradictions, improvements and lies etc., on the contrary it is highly probable considering the peculiar position occupied by Masood Mahmood under appellant Zulfiqar Ali Bhutto; and can be safely acted upon provided the requisite corroboration is available on the record. I will be useful to state here, that, on an exhaustive review of the general circumstances pertaining to Masood Mahmood, I have already found that considering the fact that Masood Mahmood enjoyed a special position under Zulfiqar Ali Bhutto, that he was in close and constant touch with him throughout his tenure as Director-General of the Federal Security Force from 1974 to 1977, that he was shown all kinds of favours and considerations by being sent abroad for official visits and medical treatment, that be was not the only civilian official taken into custody on the,, proclamation of Martial Law, and that during his long career in the Police service of Pakistan he had held important positions involving assumption of responsibility and exercise of authority, and it was, therefore difficult to hold that Masood Mahmood had become an instrument in the hands of the Martial Law authorities to deliberately and falsely concoct the story h had narrated at such length at the trial. A further significant fact strengthening me in this conclusion was that even if he was pressurised to falsely implicate the form-.r Prime Minister, there was no reason for the Martial Law authorities, or for Masood Mahmood himself to falsely assign an important operational role in the conspiracy to appellant Mian Muhammad Abbas, who was then functioning as one of the Directors of the Federal Security Force, incharge of Operations and Intelligence. For all these masons, I consider that the real and important question is whether the prosecution has succeeded in bringing on the record the necessary corroboration in support of the testimony of Masood Mahmood.
EVIDENCE IN CORROBORATION OF MASOOD MAHMOOD
457. The items relied upon by the prosecution in this behalf are;
(i) Evidence of motive ;
(ii) Statement of Saeed Ahmad Khan (P. W. 3) regarding conveying a message of the Prime Minister to Masood Mahmood about Ahmad Raza Kasuri ;
(iii) Documentary evidence
showing Masood Mahmood’s presence at
(iv) Evidence of M. R. Welch (P.
W. 4), both oral and documentary, regarding instructions given to him by Masood
Mahmood to “take care of” Kasuri at
(v) The
(vi) The nature of the incident
of the 11th of November 1974, at
(vii) Subsequent conduct of Zulfiqar Ali Bhutto at Multan on hearing of this murder on the morning of the 11th of November 1974; interference of his Chief Security Officer and his Assistant Abdul Hamid Bajwa with the proper investigation of the case in 1974; and his efforts at winning over Kasuri and bringing him back to the -Pakistan People’s Party after the present murder.
RELEVANCE OF MOTIVE IN CONSPIRACY CASES
458. Before considering the evidence of motive, as furnished by Ahmad Raza Kasuri, himself appearing as P. W. 1 at the trial, I may dispose of Mr. Yahya Bakhtiar’s contention that motive is not relevant in a case of conspiracy; or at any rate, it is evidence of a very weak nature and cannot be regarded as substantive evidence for proving a charge of conspiracy. In support of these submissions he referred us to Jit Singh v. Emperor (A I R 1925 Lab. 526), Kdrtar Singh v. Emperor (A I R 1936 Lab. 400) and Qabil Shah and others v. The State (P L D 1960 Kar. 697).
459. The cases relied upon by the learned counsel do not appear to lay down any rule as to the irrelevance of motive in cases of conspiracy. In all the three cases relied upon by Mr. Yahya Bakhtiar the evidence as to motive was specifically considered by the learned Judges, but they proceeded to observe that motive alone could not provide the requisite corroboration of the testimony of an approver, when no other corroboration was available on the record. There is no indication in these judgments that the Court considered the motive to be irrelevant cases of conspiracy and approvers.
460. On the other hand Mr. Ijaz Hussain Batalvi, for the prosecution, drew our attention to the observations appearing on page 1452 of Ear. Nand Lai’s commentary on the Indian Penal Code, 1929 Edition, as well to the comments on section 8 of the Evidence Act on page 57 of the Law of Evidence by Monir, besides two recent cases decided by this Court, namely, Abdur Rashid v. Umid Ali and 2 others (P L D 1975 S C 227), Mst. Razia Begum v. Hurayat Ali and 3 others (P L D 1976 S C 44) and Dost Muhammad v. The State (1974 P Cr. L J 275).
461. It is not necessary to discuss these authorities at any length, for the reason that this question was considered by this Court as recently as April 1975, in the case of Abdur Rashid mentioned above, and it was observed as follows;----
“Evidence of motive is not only relevant but also often helpful to the Investigating Agency as well as the Court. Its importance, however, depends on the facts and circumstances of each case. For the police it steers’ and determines the course of investigation. Its established existence and strong nature proved by reliable evidence when put in the scales alongwith the ocular and other evidence does quite often tend to set at rest some lurking suspicions and satisfy the Judicial conscience. Of course there may be cases where even the strongest motive may be wholly inapt owing to absence or weakness of direct evidence. Conversely the weakness of motive or even its conspicuous absence might not be helpful to the accused against whom unimpeachable ocular evidence is available.”
462. Nothing was said at the Bar in derogation of this view of the law as to the relevance of motive as an aid in the appreciation of evidence in criminal cases. I would, therefore, respectfully follow and apply this principle in the present case, only adding that the evidence of motive has been specifically made relevant by section 8 of the Evidence Act which, inter aria, lays down that;---
“Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.”
FACTUAL POSITION REGARDING MOTIVE-THE F. I. R.
463. In the light of this legal
position, we may now turn to an examination of the testimony of Ahmad Raza
Kasuri (P. W. I). In the First Information Report (Exh. P. W. 34/:3) lodged by
him within minutes of the death of his father at the
ORAL EVIDENCE OF KASURI
464. At the trial he gave details
of his political differences with Zulfiqar Ali Bhutto. He deposed that he was a
founder member of the Pakistan People’s Party which was formed on 1-12-1967, and was elected to the National Assembly in 1971 on
the ticket of that party. As he considered Zulfiqar Ali Bhutto as power hungry,
therefore, his relations with him became cool and then got really strained. The
witness in this respect referred to n speech of Zulflqar Ali Bhutto in
465. He further deposed that he and his family had to face certain political attacks in Kasur. In this respect he referred to two incidents. One of those incidents was reported in an F. I. R. lodged at Police Station Kasur City on 2-5-1971, when according to him certain pro-Bhutto elements attacked him at the premises of Habib Mahal Cinema, Kasur, where Zulfiqar Ali Bhutto was to address his party workers meeting and which attack resulted in the fracture of his hand. The witness then organised his own group known as the Raza Progressive Group (in the Pakistan People’s Party). The second incident also occurred at Kasur, which was reported in F. I. R. No. 19, dated 17-1-1972 Exh. P. W. 1 /13-D, in which three pellets hit his legs and various injuries to his brother Khizar Hayat were also caused. Kasuri stated that in these circumstances, as a matter of strategy, be adopted a policy of peace, because, Zulfiqar Ali Bhutto during those days was also the thief Martial Law Administrator. After the lifting of the then Martial Law in April 1972, the witness again opened up and started criticising Zulfikar Ali Bhutto, with the result that he was formally expelled from the Pakistan People’s Party in October, 1972. He joined another political party, namely, Tehrik-i-Istiqlal, in June, 1973 and continued his criticism of Zulfiqar Ali Bhutto.
THE INCIDENT OF 3RD JUNE, 1974
466. The climax, it appears, came on 3-6-1974 when Zulfikar Ali Bhutto was making a speech in the National Assembly on the 1973 Constitution and was proclaiming that it was a unanimous Constitution, endorsed and adopted by all sections of the House. During the course of that speech, Ahmad Raza Kasuri interrupted and said that the Constitution was not unanimous, inasmuch as nine members of the National Assembly had not signed it. (See Exh. P. W. 1/11). On this Zulfikar Ali Bhutto said “you keep quiet. I have had enough of you absolute poison. I will not tolerate your nuisance any more”. Ahmad Raza Kasuri retorted in the same manner and said “I cannot tolerate your style also”. Zulfikar Ali Bhutto then said “I have had enough of this man. What does he think of himself”.
467. On 4-6-1974 Kasuri moved a privilege motion (Exh. P. W. 22/4) complaining that he was “receiving threatening calls to face dire consequences after yesterday’s altercation with Mr. Zulfikar Ali Bhutto on the floor of the house”. This motion was placed on the record.
DOCUMENTARY EVIDENCE OF KASURI’S CRITICISM OF BHUTTO
468. The statement of Ahmad Raza Kasuri stands materially corroborated by authentic documentary evidence on the record to prove the strained and hostile relations between Ahmad Raza Kasuri and Zulfikar Ali Bhutto. In this respect it will be instructive to reproduce here the speech delivered by Ahmad Raza Kasuri on 19-2-1973 in the National Assembly which has been proved and filed in this case as Exh. P. W. 1/9. It reads as follows :-
“Mr. President, Sir, it is my
proud privilege to open up discussion in this august House which has assembled
here to deliberate on the constitutional draft. It is a very historic occasion
that we are meeting to give a Constitution as Mr. Pirzada in his inaugural
speech has mentioned, but it is also a very ‘unfortunate occasion that we are
meeting today as a “half Pakistan”. We are meeting today when 167 members from
469. This speech was continued on 20-2-1973 (See Exh. P. W. 1/8) wherein Ahmad Raza Kasuri vehemently criticised the Government while dealing with the fundamental rights guaranteeing protection and privacy of home, he stated that :---
“ . . . . . . Our telephones are being tapped. Our talk is being checked. We are being chased by the C. I. D. agencies, and in the lobbies and in the Cafeteria less visitors, more C. I. D. people. Now is this right of privacy being given to us 7 There are particular gadgets which are being fixed on our telephones through which, even if the telephone is just lying they can hear our talks in their cosy intelligence headquarters.”
470. He said that the regime was talking of Roti, Kapra and Makan, and although the country’s economy is virtually “in shambles and the country is dying of poverty, Jashans were being held in Larkana and Babawalpur. After citing Lord Acton “that power corrupts and absolute power corrupts absolutely”, he stated “if a dishonest man becomes a Prime Minister in this country, surely under these powers he can ruin the country and can become virtually the `civilian dictator’. Ha hit mercilessly at the provisions in the draft Constitution for a vote of No-confidence in the Prime Minister by a two-thirds majority, and said;---
“He wants this particular Article to be inserted in the body of the Constitution for fifteen years in order to continue in office. This is their argument for their own personal interests. A man invariably cannot go beyond 15 years in power. So this particular argument is not for the stability of the country; if stability is needed then we must create stable institutions. You cannot give stability to a country by giving protection to the personalities.”
471. At another place he said that the Prime Minister had become the strongest Dictator in the world and will be so powerful that be will not go out of the House as a living person. He opposed the provision about giving commissions in the Armed Forces of Pakistan in the name of the Prime Minister (and not in the name of the Head of the State). He said that this was being done to make it the Army of the Prime Minister.
472. On 26-5-1973 be tabled a privilege motion (Exh. P. W. 22/1) in the National Assembly complaining that he had received threats for criticising the Pakistan People’s Party regime and its politics. In this motion he made mention of various previous attacks on him and his family which he attributed to “their regime”. It reads as follows;--
“This morning I received a
telephonic call from Mr. Iftikhar Ahmad Tari, Minister of Works and
Communication, Government of the
(1) On 2nd May 1971 when Mr. Z.
A. Bhutto visited Kasur a gang of P. P. P. men including Mr. Iftikhar Ahmad
Tari attacked me and my followers. In this attack my hand was fractured and my
followers received injuries. A case is registered in Police Station,
(2) On 19th June, 1971 P. P. P. workers attacked me at Karachi Railway Station, over dozen men were arrested by the police in this regard.
(3) On 4th August, 1971, my elder brother, Sahibzada Khizar Hayat Khan was attacked while he yeas fast asleep in his house in Kasur au midnight by some unknown assailants.
Lego-medical report recorded over 100 injuries on his person. A case is registered with Police Station, Kasur.
(4) On 30th August 1971 in
(5) On 9th October 1971 in
(6) On 20th December, 1971, in
(7) On 17th January 1972, Mr.
Yaqub Maan, a P. P. P. M. N. A. opened pistol fire on me and my brother, Khizar
Hayat. I received three bullet injuries whereas my brother received one bullet
injury. A case against the said Yaqub Maan and his party is registered with
Police Station,
(8) On 8th April, 1972, in
(9) On 20th December, 1972 when
along with Air Marshal Asghar Khan I led the black day demonstration on the
Malt,
These facts I am placing on the record of the National Assembly of Pakistan to establish that this particular telephonic message of Mr. Iftikhar Abmad Tari should not be taken in a light manner. These facts prove beyond doubt that way is being prepared to establish fascism and dictatorship in the country. In the end I seek the protection of the chair so that I, as a member of the National Assembly, can perform my public duty without fear and intimidation and request that the Iftikhar Ahmad Tari be brought to book before the privilege committee.”
473. Exh. P. W. 1/10 contains the speech of Ahmad Raza Kasuri dated 1-6-1973 which he made on the draft bill of the F. S. F. (Federal Security Force). In that speech he inter alia, stated :
“For instance, if I spell out,
one of the Charters of duty of this special a force is to quell disturbances,
Sir, to check the smuggling, to stop the highway robbery, But, Sir, the people
of Pakistan feel that the charter of duty which is assigned to them by the
special law is to disturb the public meetings, to commit the political murders,
to plant bombs into the places of political leaders, to fire at their houses,
to abduct their children. These are the duties which have been assigned to this
force. This force has been established to create terror in the minds of the
opponents of the regime. This force has been created to check the process of
democracy in
CONCLUSIONS AS TO HOSTILITY BETWEEN KASURI AND BHUTTO
474. It thus stands established on the record that relations between Ahmad Raza Kasuri and appellant Zulfiqar Ali Bhutto had been continuously deteriorating, and becoming more and more strained since political differences arose between them in early 1971 over Bhutto’s stance on the question of attending the Dacca Session of the National Assembly scheduled for the first of March, 1971 ; Ahmad Raza Kasuri had formed a Progressive Group in the Pakistan People’s Party ; that he was expelled from the Party in October, 1972 ; that he joined an opposition party, viz., Tehrik-i-Istiqlal ; that he lost no opportunity of bitterly criticising Bhutto in the National Assembly, holding him responsible for the separation of East Pakistan ; that he considered Zulfiqar Ali Bhutto to be power hungry and accused him of being a dictator, and of trying to perpetuate his personal rule through unusual constitutional provisions and setting up of the Federal Security Force ; that an extremely unpleasant altercation did take place between the two in the National Assembly on the 3rd June, 19’4 during the course of which Zulfiqar Ali Bhutto expressed his extreme annoyance with Kasuri and virtually threatened him ; and that Kasuri had been tabling various privilege motions in the National Assembly accusing the partisans of Zulfiqar Ali Bhutto as being responsible for the various violent physical attacks made on him from time to time.
475. Mr. Yahya Bakhtiar’s contention that the allegations levelled by Kasuri against Bhutto were false, does not detract from the fact that Kasuri yeas indeed indulging in bitter criticism of Bhutto and his policies ; and this criticism would be all the more infuriating to Bhutto if it was not correct or justified.
476. It appears that the bitter
attacks launched by Ahmad Raza Kasuri on Zulfikar Ali Bhutto did not ‘end with
the altercation between them on the floor of the National Assembly on the 3rd
of June, 1974. In the Intelligence Report signed and sent by M. R. Welch (P. W.
4), as Director of the Federal Security Force at Quetta to the Director-General on the 14th of
September, 1974, it is stated that Ahmad Raza Kasuri, alongwith other
politicians arrived at Quetta on the 13th of September, and the same day he
made a speech to about 200 persons including students invited to a tea party in
Cafe China. In the words of the report “Ahmad Raza Kasuri spoke first. He
referred to the oppression of Government on the public in
This kind of speech could hardly be to the liking of the then Prime Minister.
CORROBORATIVE EVIDENCE AS TO MOTIVE
477. The existence of hostility between Zulfiqar Ali Bhutto and Ahmad Raza Kasuri is also proved by Saeed Ahmad Khan (P. W. 3) who bad served for several years as Bhutto’s Chief Security Officer. He deposed at the trial that in December, 1973, he opened a file in respect of Ahmad Raza Kasuri under the orders of the Prime Minister, which also included practically all Opposition leaders, P. P. P. renegates and legislators. He added that Ahmad Raza Kasuri had become very bitter and critical, and, in fact, virulent against the Prime Minister, and, therefore, orders were issued that he should be kept under strict surveillance, and this was done by the provincial special branches of the Police and Kasuri’s telephone was tapped by the Intelligence Bureau. The files opened and maintained by Saeed Ahmad Khan on Ahmad Raza Kasuri were brought on the record as Exh. P. W. 3/1, Exh. P. W. 3/2 and Exh. P. W. 313.
478. The personal interest takers by Zulfiqar Ali Bhutto in Ahmad Razz Kasuri is further evidenced by the fact that a number of reports were sent to him from time to time by his Chief Security Officer Saeed Ahmad Khan .and the latter’s Assistant the late Abdul Hamid Bajwa, and the notes made thereon show that they were perused by him, and occasionally also commented upon. For instance on a report sent to Zulfiqar Ali Bhutto about the tapping of a telephone conversation between Ahmad Raza Kasuri and an unknown lady Zulfiqar Ali Bhutto made the following remarks;
“This is very interesting but who is the lady. Surely if we were efficient, we would know by now. What is the use of half baked information coming to us with the tapping of telephones which requires no effort. It is effort we want.”
479. This note and the appellant’s signature thereon were proved by Saeed Ahmad Khan as Exh. P. W. 3/1-A, which is dated the 13th of December, 1973.
480. Similarly other reports were also brought on the record through Saeed Ahmad Khan as Exhs. P. W. 3/1-B, P. W. 3/1-C and P. W. 3/1-D. The report or note marked as Exh. P. W. 31-C bears a remark by Zulfiqar Ali Bhutto to the following effect;
“How stupid can you get ?”
This is dated 15-12-1973. Similarly the report marked Exh. P. W. 3/1-D bears the signatures of the appellant in token of his having seen this report and is dated 30-12-1973.
EVIDENTIARY VALUE OF SECRET INTELLIGENCE REPORTS
481. Mr. Yahya Bakhtiar contended that High Court had erred in treating secure reports on Ahmad Raza Kasuri as admissible in evidence, and placing reliance thereupon, and in support of this proposition he relied upon Islamic Republic of Pakistan v. Abdul Wall Khan (PLD 1976SC75). In that case it was observed that;
“The material contained in such source or intelligence reports may well be of great value so far as executive decisions are concerned, but for the purposes of a judicial inquiry, they cannot be of any assistance at all unless the authorities concerned are prepared to produce the sources themselves for giving evidence before the Court.”
482. The objection raised by Mr. Yahya Bakhtiar has, indeed, the support of a recent decision of this Court, but I find that the particular reports to which reference has been made in the preceding paragraphs have not been relied upon by the High Court as to their contents, but simply to show the fact that such reports were submitted to the Prime Minister in respect of Ahmad Raza Kasuri and that on a perusal of these reports he made certain comments. It seems to me that this limited use of the source or secure reports, as they have been variously described during the arguments x and evidence in this case, is not hit by the fact that the makers of those reports were not produced at the trial. For the limited purpose of showing Zulfiqar Ali Bhutto’s interest in -the activities and movements of Ahmad Raza Kasuri, what was relevant was the fact that such reports were being sent to him from time to time and were also being perused by him. The correctness of their contents is neither relevant nor in question.
DEFENCE SUGGESTIONS AS TO OTHER POSSIBLE MOTIVES
483. Mr. Yahya Bakhtiar contended that from the list of cases of physical assault on Ahmad Raza Kasuri, as given in one of the privilege motions (Exh. P. W. 22/1) tabled by him in the National Assembly, and reproduced earlier in these pages, it would appear that there could be several other motives on the part of persons other than the appellant Zulfiqar Ali Bhutto. The learned counsel listed these other motives as follows;---
(a) Ahmad Raza Kasuri’s enmity with a local political rival, named Mohammad Yaqoob Maan, who was also a member of the Punjab Provincial Assembly, having bean elected on the ticket of the Pakistan People’s Party;
(b) Rivalry with another political group in Kasur, which the learned counsel broadly described as a pro-Bhutto group;
(c) Enmity with still another group of persons who had attacked Kasuri at a place called Khudian, apparently under the inspiration of Mian Iftikhar Ahmad Tari, a P. P. P. Provincial Minister in the Punjab ;
(d) Enmity with certain enemies
in
(e) Enmity arising out of Ahmad Raza Kasuri’s stand in respect of declaring the Ahmadis as non-Muslims in Pakistan.
484. Mr. Yahya Bakhtiar submitted that, in the face of this widespread enmity against Ahmad Raza Kasuri on the part of various individual and political groups in various parts of the country, emphasis mainly on hostility with appellant Zulfiqar Ali Bhutto was not justified, specially when in a parliamentary form of a Government bitter speeches and remarks by members of Parliament against one another are matters of routine, and should not be given any undue importance so as to make them a motive for murderous assault on political opponents. The learned counsel submitted that the High Court had not adverted at all to the possibility of the existence of these other motives to do away with Kasuri. He contended that in a statement made under section 161 of the Criminal Procedure Code before D. S. P. Agha Muhammad Safdar during the investigation of Islamabad incident on the 24th August, 1974, and also in another statement made before the Shafi-ur-Rehman Tribunal after the present murder, Ahmad Raza Kasuri had clearly conceded the existence and possibility of other enemies and motives, but the High Court had erroneously excluded both these statements from consideration.
485. Taking up first the question
of the exclusion of the statement said to have been made by Ahmad Raza Kasuri
under section 161 of the Criminal Procedure Code before Deputy Superintendent
of Police Agha Muhammad Safdar during the course of investigation of the
Islamabad incident on the 24th of August, 1974, the relevant facts are that
Ahmad Raza Kasuri had stated at the trial that after he had been fired upon
from a deep while proceeding to his residence in Islamabad on the 24th of
August, 1974, he had registered a case at Police Station, Islamabad, but no
Police Officer contacted him after that. He repeated this assertion in cross-examination, when it was
sought by the defence to confront and contradict him by a statement purporting
to have been made by him on that very day as a supplementary statement before
Agha Muhammad Safdar, Deputy Superintendent of Police,
486. The grievance on behalf of the appellant is that as a copy of the statement in question had been supplied to the defence by the prosecution itself, it was incumbent upon the prosecution to call Agha Muhammad Safdar, D. S. P., as a prosecution witness; or the Court should have called this officer as a Court-witness; or, as a last resort, to have allowed the statement to be proved by Inspector Nasir Nawaz on the ground that he was familiar with the handwriting and signatures of the D. S. P., who was his superior.
487. I do not see any merit in these submissions, for tile reason that although the prosecution acted correctly in supplying a copy of the statement to the defence as it was found in the police record of the investigation of the Islamabad incident, yet the statement had to be duly proved, a required by section 162 of the Criminal Procedure Code, before it could 43 be used to contradict and cross-examine Ahmad Raza Kasuri. He had emphatically denied making any such statement, and had, in fact, asserted both in examination-in-chief as well as in cross-examination, that no police officer had contacted him after he had lodged the First Information Report at the Islamabad Police Station. His denial finds support from the fact that in the privilege motion, which he moved on the same afternoon, in the National Assembly, which was then sitting as a Committee of the full House to consider the Qadiani issue, he stated that he was not attributing motive to any one at that stage. In these circumstances the statement had obviously to be proved by the officer who had recorded the same, and the mere identification of signatures of the D. S. P. by his subordinate, namely, Inspector Nasir Nawaz could not have proved the contents of the statement.
438. As the statement in question was not a statement recorded under section 161 of the Criminal Procedure Code during the investigation of the present murder, but in a different criminal case under section 307 of the Pakistan Penal Code alleged to have been taken place on the 24th of August 1974, it was not one of the statements which had to be supplied to the defence under the provisions of section 265-C of the Code. It was, therefore, clearly the duty of the defence to summon the officer concerned as its own witness to prove the statement if it wanted to make use thereof under section 162 of the Code.
489. There has been considerable argument at the Bar that the High Court should have called this officer as a Court witness in the interest of justice, and that its failure to do so has caused prejudice to the defence. I regret I am not impressed by this argument for the reason that the power granted by section 540 of the Code to summon Court witnesses is entirely a matter in the discretion of the Court, and it is not for the accused to insist, specially when he has an opportunity of calling the witness concerned as a defence witness, in case, he considers his evidence to be necessary. The proper use of section 540 is in a situation where neither of the parties before the Court is in a position, of is willing, to call a witness whose evidence is material for doing justice in the cause. Such was not the case here, as the D. S. P. concerned could easily have been summoned as a defence witness by any of the accused persons to prove the statement in question.
490. Coming now to the controversy relating to the contents of paragraph 15 of the report submitted to the Government in this case by Mr. Justice Shafi-ur-Rehman of the Lahore High Court as an Inquiry. Tribunal, I find that the High Court has taken the view that the report as such was not admissible in evidence under any of the relevant sections of the Evidence Act. This view of the High Court was conceded by both sides to be correct; but it was contended by Mr. Yahya Bakhtiar that as this paragraph contained a gist or reproduction of a statement presumably made before the Tribunal by Ahmad Raza Kasuri giving four possible motives for the assault on him, resulting in the death of his father, the High Court should have allowed this paragraph to be used for the purpose of confronting and contradicting Ahmad Raza Kasuri in terms of section 145 of the Evidence Act for the reason that no other record of this statement was available in the records of the Tribunal. In support of this submission the learned counsel placed reliance on Y. E. R. Subbaraya Chettlar and others v. Sellamuthus Asari (A I R 1933 Mad. 184), Aft. Kundan Bibi arid others v. Magan Lai and others (A I -R 1932 All. 710), Medavaropu Xarasayya v. Medavarapu Veerayya and others (A I R 105 Mad. 268), and S. K. Ramaswami Goundan v. S. N. P. Subbaraya Goundan and others (A I R 1948 Mad. 388). In all these cases the rule laid down is that if the original statement is not available and the recitals in the judgment were the only official record, thereof, then confrontation with such recitals could be permitted.
491. On behalf of the State, it was pointed out by Mr. Ijaz Hussain Batalvi that the entire record of the Tribunal, as available with the Punjab Government, was scrutinised by a Deputy Secretary in the presence of Mr. D. M. Awan, and the only statements found on the record were one oral statement of Ahmad Raza Kasuri recorded by the Tribunal, one written statement filed in the first instance, and another supplementary written statement, in all on which Ahmad Raza Kasuri, had blamed appellant Zulfiqar Ali Bhutto for the attack on his car, and had, in fact, gone to the extent of asserting that he did not expect to get justice as long as Zulfiqar Ali Bhutto was in power. In order to satisfy ourselves further the record of the Tribunal was scrutinised, in the presence of the counsel for both sides by our learned brother Muhammad Haleem, J. and there was no indication at all of the presence of any such statement on the record, nor was there any suspicion that such a statement had been removed after the Tribunal had concluded its proceedings. Mr. Batalvi also seems to be right in submitting that a perusal of paragraph 14 of the Report shows that Ahmad Raza Kasuri had made only one oral statement and two written statements as mentioned in the preceding paragraphs. Such being the case, the contents of paragraph 15 of Mr. Justice Shafi-ur-Rehman’s report cannot be treated to be secondary evidence of the disputed statement of Ahmad Raza Kasuri, as no such statement appears to have been made at all by him during the inquiry proceedings. It seems to me that while describing the possible motives for the assault Mr. Justice Shafi-ur-Rehman may have been inadvertently influenced by some other documents placed before him, may be the statement said to have been made by Ahmad Raza Kasuri during the Islamabad incident before D. S. P. Agha Muhammad Safdar. Considering all these surrounding circumstances, I am of the view that this was not at all a case in which the principle enunciated in the precedent cases relied upon by Mr. Yahya Bakhtiar could have been applied. A scrutiny of the record of the proceedings of the Tribunal has made it amply clear that no such statement was ever -recorded, and, therefore, no question of its having been lost arises.
492. There is, however, yet another aspect of the matter, namely, that even if in August 1974, Ahmad Raza Kasuri might have thought that the attack launched on him at Islamabad could have been the work of any of the four groups of his enemies, yet in the First Information Report lodged by him in: the middle of the night, immediately after the death of his father, on the 11th of November 1974, he clearly laid stress only on his political differences with appellant Zulfiqar Ali Bhutto who was then in power as the Prime Minister of Pakistan. It is in evidence that the police officers who had reached the United Christian Hospital on being informed of this incident, hesitated to record an F. I. R. mentioning the name of the Prime Minister, and, accordingly, a compromise formula was devised to the effect that the F. J. R. would not be recorded on the basis of the oral statement made by Ahmad Raza Kasuri, but on the basis of a writing to be prepared by him.
493. It is also in evidence that the Prime Minister’s Chief Security Officer Saeed Ahmad Khan, and his Assistant the late Abdul Hamid Bajwa, had given directions to the Investigating Officers to examine every possible motive, but from the fact that the case was filed as untraced on the 1st of October 1975, it can safely , be inferred that nothing tangible came to light in these directions. A further fact may also be noticed at this stage, namely, that nothing was brought out in the lengthy cross-examination of Masood Mahmood and other prosecution witnesses to show that any of them, or any of the confessing accused or appellant Mian Muhammad Abbas could have any motive of their own to assassinate Ahmad Raza Kasuri or his father. In fact, Masood Mahmood asserted at the trial that his father and the deceased were family friends from Kasur.
494. Before concluding the discussion on the question of motive, it may be stated that in the High Court it was suggested that if appellant Zulfiqar Ali Bhutto had any motive to do away with Ahmad Raza Kasuri, he could have easily brought some persons from Larkana to do so instead of involving the Federal Security Force. This argument was disposed of by the High Court (in paragraph 580 of the judgment) by saying that:
“These arguments presume that a criminal must act in a particular manner in given circumstances. The reaction may differ from man to man. The planning may also differ. These arguments cannot cast any doubt regarding the correctness of the evidence.”
These observations seem to me to be unexceptionable.
WAS KASURI A POLITICAL NON-ENTITY?
495. Both Mr. Yahya Bakhtiar and
appellant Zulfiqar Ali Bhutto contended that Ahmad Raza Kasuri was a political
non-entity, and,
therefore, there could hardly be any reason or occasion for the appellant to
take Kasuri’s utterance seriously. Whatever the status and stature of Ahmad
Raza Kasuri as a politician in
496. As to Mr. Yahya Bakhtiar’s p’ea that bitter speeches in Parliament can not, however, give rise to thoughts or plans of murder, we may observe that it is not possible to make any such generalisation, as there are instances, where political bickerings have actually led to murders or murderous assaults, even on the floor of the house. It has also to be remembered that Kasuri’s outbursts must have causes special annoyance and anguish to Zulfiqar Ali Bhutto, as Kasuri had started his political career as a young admirer and camp-follower of Bhutto, and his critical and violent utterances, in Parliament and outside, could not, therefore, be easily accepted as those of an ordinary parliamentary opponent.
MOTIVE PROVED
497. As a result, I have reached the conclusion that the learned Judges in the High Court were right in holding that the appellant Zulfiqar Ali’ Bhutto had a strong motive to do away with Ahmad Raza Kasuri owing to their violent political differences, and the manner and the language in which Ahmad Raza Kasuri gave vent to his views against the former Prime Minister and his polices.
CORROBORATION OF MASOOD MAHMUD BY SAEED AHMAD KHAN, CHIEF
SECURITY OFFICER TO THE FORMER PRIME MINISTER
498. Masood Mahmood’s statement
as to the task assigned to him by the former Prime Minister to do away with
Ahmad Raza Kasuri, and his assertion that the Prime Minister kept on reminding
and goading him on the green telephone as well as through his Chief Security
Officer Saeed Ahmad Khan find corroboration from the testimony of the later.
Appearing as prosecution witness No. 3 at the trial, he stated that while
serving as Additional Inspector-General
of Police in
499. Saeed Ahmad Khan deposed that his duties were to advise the appellant on political issues in the country and to keep him abreast of the activities of various political parties. Important and daily intelligence reports from the various Intelligence Agencies like the Federal Intelligence Bureau, Inter-Services Intelligence Directorate, and the provincial special branches, began to be supplied to him at the end of 1972. After assessing these reports he used to send his own appraisal to the appellant. In 1973, he requested the appellant for an Assistant in view of the increase in his work load, and the late Abdul Hamid Bajwa was then appointed as an Officer-on-Special Duty with him on the ground that being a specialist on Punjab affairs he would be useful in that behalf. Saeed Ahmad Khan asserted at the trial that he discovered in due course that Abdul Hamid Bajwa had direct access to the appellant personally as well as on the telephone and was being given direct assignments and would also send his reports directly to the Prime Minister.
500. It has already been mentioned earlier that in December, 1973, Saeed Ahmad Khan was asked by the appellant to open files on a number of persons including Ahmad Raza Kasuri. The witness proved these files at the trial and went on to add that during an interview with the appellant in the middle of 1974, he was suddenly asked by the appellant whether he knew Ahmad Raza Kasuri. On his reply that he did not know Kasuri personally, the appellant told him that he had assigned some work to Masood Mahmood about Ahmad Raza Kasuri, and. that the witness should remind Masood Mahmood. On returning to his office the witness passed this message to Masood Mahmood on the green line, and the latter replied “alright”. It was brought out in cross-examination that the witness did not know at that time the import of the message given to him by the then Prime Minister I that he, in fact, thought that it must be for the purpose of effecting a reconciliation between the Prime Minister and Ahmad Raza Kasuri as Masood Mahmood also hailed from Kasur, and he had earlier played some part in trying to bring about a rapprochement between the appellant and the former Federal Minister Mr. J. A. Rahim who had been dismissed from the Cabinet by the appellant on the 2nd of July, 1974.
501. The rest of the evidence of Saeed Ahmad Khan deals with events subsequent to the present incident, and it is, therefore, not necessary to give its details at this stage. It is sufficient to say that he described the efforts made by him and his Assistant Abdul Hamid Bajwa to direct the investigation of the case into certain channels for the purpose of keeping out the Federal Security Force and the Prime Minister. He also gave evidence as to the efforts made by him and his Assistant, at the instance of the appellant, to win over Ahmad Raza Kasuri back to the fold of the Pakistan People’s Party. On both these matters, he referred to several documents, which will be examined at their proper place.
CREDIBILITY OF SAEED AHMAD KHAN
502. Leaving aside for the time being, Mr. Yahya Bakhtiar’s analysis and criticism of Saeed Ahmad Khan’s evidence relating to the conduct of the investigation and winning over of Ahmad Raza Kasuri, and his contention that Saeed Ahmad Khan is an accomplice, or at any rate no better than an accomplice, it may be stated that the veracity of this witness was also attacked on the same general grounds as were urged in respect of Masood Mahmood, namely, that he bad been brought under pressure by the Martial Law authorities after having been taken into custody on the 5th of July, 1977, and he consented to falsely support the prosecution case when confronted with an inquiry, and possible prosecution, for allegations arising out of more than a thousand files taken into possession by the Federal Investigation Agency from his office. The learned counsel submitted that, like Masood Mahmood, Saeed Ahmad Khan bad also voluntarily written a letter to the Chief Martial Law Administrator, and it was only subsequently that his statements under sections 161 and 164 of the Criminal Procedure Code were recorded in connection with the present case. Mr. Yahya Bakhtiar contended that in these circumstances the High Court was in error in treating Screed Ahmad Khan as an independent witness.
503. After giving my anxious consideration to the submissions made by Mr. Yahya Bakhtiar, I am of the view that it is not possible to agree that Saeed Ahmad Khan has deliberately chosen to falsely implicate Zulfiqar Ali Bhutto in this case owing to pressure exerted on him by the Martial Law authorities. While dealing with the case of Masood Mahmood, I have already stated that several civilian officials appeared to have been taken into custody on the proclamation of Martial Law in Pakistan on the 5th of July, 1977, specially those who were closely associated with the former Prime Minister ; and, therefore, the simple fact that Saeed Ahmad Khan was also taken into such custody would not necessarily lead to the inference that he would be persuaded to falsely implicate his erstwhile superior and benefactor. According to Saeed Ahmad Khan, he first met the appellant in December, 1955 when he was Deputy Inspector-General of Police ; but in cross-examination it was suggested to him that, in fact, he and his brothers owed their present jobs to appellant’s father, Sir Shah Nawaz Bhutto. Even if that be not correct, the fact remains that there was a fairly long association between Saeed Ahmad Khan and the appellant, and it was for this reason that he was appointed by the appellant to a position of great personal confidence and trust as his Chief Security Officer, even though be was a dismissed civil servant. The device adopted to pay him his salary as a legal consultant to an organisation under the Cabinet Division, for which he never worked, shows the anxiety of the appellant to secure the advice and services of Saeed Ahmad Khan for exercising political control over the members of his own party and that of the Opposition. His evidence leaves no doubt that he had access to confidential documents from almost all the ministries of the Government including the Foreign Office, and he was also in constant touch with the Provincial Governments. He was given lucrative terms for his employment, and even though he ceased to be the Chief Security Officer to the appellant with effect from the 15th of June, 1976, yet he continued in service, apparently on the same terms, until the 5th of July, 1977. In these circumstances there had, indeed, to be some extraordinary pressure on him to fabricate a false story against the appellant.
504. Now, the pressure alleged by the learned counsel of the appellant is that he was threatened with the registration of a number of cases against him, arising out of the large number of files seized from his office by an Assistant Director of the Federal Investigation Agency, namely, Khizar Hayat (P. W. 29). On page 282 of the record the answer given by Saeed Ahmad Khan is “I have been detained because of the sins of commission and omission of Mr. Bhutto. It was a blessing in disguise for me because I had time to seek mercy from my Allah and I volunteered as I have said earlier to the Chief Martial Law Administrator that I was making a clean breast of which I know of my association with ‘Mr. Bhutto. The question, therefore, of any threat or any undue influence does not arise, and my files maintained in my office speak for themselves”.
505. Earlier in cross-examination Saeed Ahmad Khan had stated that he was interrogated in this case on the 2nd of September, 1977, by the Federal Investigation Agency, but before that he had written two petitions to the Chief Martial Law Administrator from his detention at Sihala that he had saved the country from civil war which was imminent, and that “an officer or a team be sent to take down my voluntary statement as to what I had to say of my associations with Mr. Bhutto as I am now free from his shackles” He went on to state that a team consisting of a Major-General, a Colonel and an F. I. A: Officer came to him and he narrated the whole story that he knew, and after that they asked him certain questions, including those relating to the present murder. He denied that he bad been interrogated on the allegations of corruption and misuse of official position.
506. Considering Saeed Ahmad Khan’s age, experience and standing as a Police Officer, his replies to the suggestions made to him by the defence, and the long and intimate association existing between him and the appellant, as well as the obvious benefits by way of emoluments, power and patronage enjoyed by Saeed Ahmad Khan during the appellant’s tenure of office, I am of the view that it is not possible to hold that Saeed Ahmad Khan is deliberately giving false evidence against the appellant under pressure from the Martial Law authorities.
507. It was next submitted by Mr. Yahya Bakhtiar that Saeed Ahmad Khan is not at all certain as to when he was asked by the appellant to convey a message to Masood Mahmood about Ahmad Raza Kasuri, as he had earlier stated that it was in mid 1974, and in his previous statement under sections 161 and 164, Cc. P. C. he had mentioned that it was in August,’ 1974. In cross-examination Saeed Ahmad Khan clarified that although he did not remember the exact date, the interview with the Prime Minister, at which the latter gave him this message for Masood Mahmood, had taken place a few days after the dismissal of the Federal Minister Mr. J. A. Rahim on the 2nd of July, 1974. As the dismissal of Mr. Rahim was an event of considerable significance at the lime, it appears to be only natural that Saeed Ahmad Khan should be able to correlate the interview with this event. Such being the case there does not appear to be any such uncertainty as to the timing of this interview as contended by Mr. Yahya Bakhtiar.
508. The learned counsel further submitted that as the Prime Minister was in direct touch with Masood Mahmood, where was the need for him to ask Saeed Ahmad Khan to convey such a message to Masood Mahmood ; and it would, therefore, appear that the prosecution has deliberately introduced Saeed Ahmad Khan as a false witness to lend support to Masood Mahmood’s testimony. The learned counsel is undoubtedly right in saying that the appellant was, indeed, in direct and constant touch with Masood Mahmood, but the question now posed should have been put both to Masood Mahmood and Saeed Ahmad Khan. I find, however, that no such question was asked from either of them, and the emphasis in the cross-examination of Saeed Ahmad Khan was only on the timing of the interview in question. However, from the evidence of Masood Mahmood it does appear that the appellant was reminding and goading him to get on with the job, apparently because of the delay that had taken place in the execution of the mission entrusted to him regarding Ahmad Raza Kasuri. It is, therefore, possible that the message sent through Saeed Ahmad Khan was intended to expedite the matter.
CONCLUSIONS AS TO SAEED AHMAD KHANS CORROBORATION OF MASOOD MAHMOOD
509. For the foregoing reasons I am of the view that this part of the evidence of Saeed Ahmad Khan does lend corroboration to the testimony of Masood Mabmood that the former Prime Minister had specially assigned to him the task of doing away with Ahmad Raza Kasuri. The message was given to Saeed Ahmad Khan when several weeks had already passed since the task hart been assigned to Masood Mahmood by the appellant, and, therefore, there does not appear to be anything improbable or unnatural if the appellant decided to remind Masood Mahmood about the matter through a high-powered emissary, who was none other than his own Chief Security Officer.
CORROBORATION REGARDING
510. It will be convenient now to
turn to the corroborative evidence offered by the prosecution regarding the
visit of appellant Zulfiqar Ali Bhutto as Prime Minister to
511. The visit of the appellant
to
512. In this behalf we have in
the first place the T. A. bill of Masood Mahmood (Exh. P. W. 2/9) which shows
that Masood Mahmood travelled to
MASOOD MAHMOOD’s INSTRUCTIONS TO DIRECTOR M. R. WELCH TO TAKE CARE OF KASURI AT QUOTA
513. Now, Masood Mahmood has
stated that during Ibis meeting, appellant Zulfiqar Ali Bhutto told him that
Ahmad . Raza Kasuri was likely to visit
514. M. R. Welch has further deposed that Ahmad Raza Kasuri arrived at Quetta on the 13th of September, 1974, and one or two days prior to his arrival, the witness had a telephone call late in the evening from Masood Mahmood asking him whether he ‘knew of the arrival of Ahmad Raza Kasuri, and he would like that the witness should have this information. Masood Mahmood further told him that Ahmad Raza Kasuri should be taken care of and then closed the telephone. According to M. R. Welch “in the context of the personal talk with Mr. Masood Mahmood in July, 1974, when he referred to take care of Mr. Kasuri, it meant his elimination, and elimination meant assassination”.
515. Giving details of Ahmad Raza
Kasuri’s arrival in Quetta, M. R. Welch has deposed that Kasuri had a room
reserved in Imdad Hotel, Quetta, but he did not actually reside in this hotel ;
that the party workers of the Tehrik-e-Istaqlal had been detailed
to watch the room in Imdad Hotel occupied by the members of the party ; that persons
who wanted to see the political leaders were usually searched by the workers,
who were cautious regarding the movements of their leaders ; that, in other
words, they did not even disclose their programme ; and that Kasuri left Quetta
suddenly on the 16th of September, 1974. M. R. Welch has then proved certain
documents by way of correspondence which passed between him and the Director-General of the Federal
Security Force at
DOCUMENTARY EVIDENCE IN SUPPORT OF M. R. WELCH
516. In the first place there is the report (Exh. P. W. 2/1) bearing No. 9505 dated the 14th of September, 1974, sent by Welch to the Director General of the Federal Security Force, to which a reference has already been made in connection with the contents of the speech made by Ahmad Raza Kasuri on the very first day of his arrival in Quetta, namely, 13th of September, 1974, in which he severely criticised the appellant Zulfiqar Ali Bhutto. In this report Welch had informed the Director-General about the arrival of Ahmad Raza Kasuri and two other gentlemen, namely, Malik Ghulam Jilani and Feroze Islam in Quetta, adding that a room had been reserved for Ahmad Raza Kasuri in Imdad Hotel but he was, however, not residing in the reserved room.
517. Although this letter was addressed to the Director-General of the Federal Security Force, it was acknowledged by Mian Muhammad Abbas by his D. O. letter dated the 25th of September, 1974 (Exh. P. W. 2/2) asking Welch “if Ahmad Raza Kasuri did not stay at the Imdad Hotel which was reserved for him, where else did he stay during his sojourn at Quetta” This letter remained unanswered by Welch until the 17th of November, 1974, i.e. until after the murder of Kasuri’s father. In his reply Welch informed Mian Muhammad Abbas that “the gentleman in question had reserved a room in the Imdad Hotel but seldom stayed in his reserved room during the night. He occupied some other room reserved for members of the party in the Hotel”.
518. After his initial report to the Director-General on the 14th of September; 1974, Welch sent another report to Masood Mahmood by name on the 18th of September, 1974, which would bear a reproduction here in full;
“Top secret immediate
INTELLIGENCE REPORT’
(1) Ahmad Raza Kasuri and Feroz
Islam left
(2) Asghar Khan, Muhammad Saeed,
Mahmood Ali Kasuri and Mr. A. B. Awan left
(3) Throughout their stay at
The time of their movements were not disclosed and they spent little or no time in the hotel rooms reserved for them.
The source who had infiltrated
into their ranks and claimed to be a relative of Sattar Khan of Mardan was
detected on the 15th September when Sattar Khan himself arrived in
The party was at all times under the surveillance of the Police Special Branch, Military Intelligence and the Intelligence Bureau. During their journeys to Kuchlaq and Pishin they were followed by the above Agencies.”
519. Masood Mahmood perused this report on the 21st of September, 1974, and underlined and side-lined certain portions thereof, and made the following comments in the margin;
“To discuss at
This minute was marked to Director, Operations and Administration, which apparently meant appellant Mian Muhammad Abbas who bad described himself as Director, Operations and Administration in the D. O. letter addressed by him to Welch on the 25th of September, 1974.
520. After referring to these documents, which had already been brought on the record at the trial during the evidence of Masood Mahmood, Welch made the following significant statement;
“The reason for sending this report (i.e. the one dated the 18th of September, 1974) to Mr. Masood Mahmood by name was that it contained information of a very confidential nature which he could only understand.
I had no intention of committing heinous murder and had to find a plausible excuse for not executing the orders of Mr. Masood Mahmood I took refuge in the fact that Mr. Ahmad Raza Kasuri was well protected and made this my excuse. I had hoped that Mr. Masood Mahmood would read between the lines and find the reason why I had not complied with his orders.”
521. The two reports sent by M.
R. Welch to his Director-General,
one by designation and the other by name, and the query posed by Mian Muhammad
Abbas in his letter of the 25th of September, 1974, on the question of the
residence of Abmad Raza Kasuri during his visit to Quetta, unmistakably bring
out the special interest which was being taken at that time by approver Masood
Mahmood and his Director Mian Muhammad Abbas in the whereabouts of Ahmad Raza
Kasuri during his stay in Quetta. Although several leaders of the Tehrik-e-Istaqlal Party had visited Quetta, and there was a mention
of their activities and speeches as well in the reports sent by M. R. Welch,
yet the question about the place or places where these leaders resided was
neither adverted to by Welch, nor raised by Masood Mabmood or Mian Muhammad Abbas
; attention in this-behalf
was focused only on Ahmad Raza Kasuri. The contents of these documents,
therefore, clearly support the oral testimony of M. R. Welch that be had been
told by Masood Mahmood during the latter’s visit to
522. The oral testimony of M. R. Welch as to the telephone call which he received from Masood Mahmood a day or two before the arrival of Ahmad Raza Kasuri in Quetta on the 13th of September, 1974, also puts in proper perspective the sequence of events as they took place in Quetta, namely, that the oral directions to eliminate Kasuri were given to him by Masood Mahmood, in the first instance, at Quetta on the 28th of July, 1974, shortly before his departure for Lahore ; and that the telephone call made in September, 1974, was a equal to these directions, as otherwise the use of the laconic phrase “Kasuri should be taken care of” would not make proper sense. It is true that in the oral testimony of Masood Mahmood there was a confusion as to the proper sequence of the personal talk at Quetta between him and M. R. Welch, and the telephone call made by him to Welch from Rawalpindi, but Masood Mahmood later clarified the position ; and in any case, the evidence of M. R. Welch is consistent on this point. It is fully supported by the contents of the telephone call as reproduced by him, and as also narrated by Masood Mahmood.
DEFENCE CRITICISM OF WELCH
523. Mr. Yahya Bakhtiar submitted that Welch could not be believed, as he had lied as to his religion when appearing as a witness at the trial, inasmuch as he declined to take an oath on the Bible and instead gave evidence on solemn affirmation, although he was a Christian by faith and therefore should have given evidence by taking an oath on the Bible. The learned counsel stated that this fact was not known to the defence at that stage, and for this reason Welch was not questioned on the point, specially because on the day when he was examined, appellant Zulfiqar Ali Bhutto was indisposed and the proceedings were conducted in his absence, although in the presence of his counsel. An application was made by the defence in this Court for recalling Welch so as to be questioned on the point of his religion. However, for reasons recorded in an earlier part of this judgment, we have disallowed this request. It seems to me that simply for the reason that Welch declined to give evidence at the trial by taking an oath on the Bible, it cannot be held that he was a liar, particularly when it was conceded at the Bar by Mr. Yahya Bakhtiar, who himself hails from Baluchistan, that at one stage Welch had embraced Islam to marry a Muslim lady. There is no material before us to come to the conclusion that he deliberately concealed his true religion for any ulterior motive at the time he appeared to give evidence in the High Court as the fourth witness for the prosecution.
524. It was next contended that
it is impossible to believe Welch when he says that he met Masood Mahmood at
his hotel in
525. Another point made in this behalf by Mr. Yahya Bakhtiar was that the evidence of Welch, even if believed, did not implicate appellant Zulfiqar Ali Bhutto, for the reason that Masood Mahmood never told Welch that the Prime Minister wanted to get Ahmad Raza Kasuri eliminated. The learned counsel submitted that this was in contrast to what Masood Mahmood had told appellant Mian Muhammad Abbas when conveying to him the message or orders given by the appellant to Masood Mahmood in June, 1974.
526. It is correct that Masood Mahmood did not take Welch into confidence to the extent of telling him that the Prime Minister had ordered the elimination of Ahmad Raza Kasuri, as he had earlier told appellant Mian Muhammad Abbas. The reason for this different approach by Masood Mahmood while talking to Mian Mahmood Abbas and then to Welch is obvious, namely, that the Prime Minister had himself mentioned the name of Mian Muhammad Abbas to Masood Muhammad and had told Masood Mahmood to ask Mian Muhammad Abbas to get on with the job. In other words, Masood Mahmood was clearly told by appellant Zulfiqar Ali Bhutto that this particular Director of the Federal Security Force was already in the know of this design since the time of Masood Mahmood’s predecessor ; but there was no such circumstance or indication in respect of M. R. Welch. In these circumstances it would, indeed, be very naive to expect Masood Mahmood to disclose to M. R. Welch that the Prime Minister wanted Ahmad Raza Kasuri to be eliminated. However, M. R. Welch has deposed at the trial that while mentioning Ahmad Raza Kasuri’s name as being one of the anti-State elements. Masood Mahmood had told him that Kasuri was making obnoxious speeches against the Prime Minister. From this remark although it cannot be inferred that Masood Mahmood was acting under the express orders of the Prime Minister, yet it does become plain that one of the reasons for eliminating Abmad Raza Kasuri was his obnoxious speeches against the Prime Minister. Viewed in this light, it would be seen that the evidence of M. R. Welch does provide valuable corroboration of the testimony of Masood Mahmood.
527. It was then contended that
the correspondence between Welch and Masood Mahmood regarding Ahmad Raza Kasuri’s
visit to
528. Mr. Yabya Bakhtiar further submitted that there were several important omissions, contradictions and improvements in the evidence given by Welch at the trial as compared to his previous statements. Mr. Yahya Bakhtiar as a matter of fact filed a chart on the subject, but a perusal of the same, however, shows that it does not actually list any “omission”, “contradiction” or “improvement” as against any “previous statement” of the witness; but simply advances a plea that the various reports sent by M. R. Welch and the surveillance carried out at the hotel-residence and on the movements of Ahmad Raza Kasuri during his visit to Quetta were merely of a normal and routine nature, and cannot give rise to any assumption that they were necessarily the result of any alleged direction by Masood Mahmood to “eliminate” Ahmad Raza Kasuri or “to take care of him”. According to Mr. Yahya Bakhtiar, if the witness was now trying to reflect that these were certain peculiar and special measures, then in that respect he was trying to improve upon those normal and routine functions of the F. S. F. This point has already been attended to while dealing, with the evidence of this witness, and the value to be attached thereto, and it is not necessary to go over the same ground again. It can, therefore, be safely stated that the statement of M. R. Welch does not suffer from any such infirmity as is denoted by the terms “omissions, contradictions and improvements”:
529. Mr. Yahya Bakhtiar also submitted that Welch, like the other witnesses in this case was pressurised by the Martial Law authorities and the Federal Investigation Agency, and that just as he was afraid of Masood Mahmood when the latter was Director-General of the Federal Security Force, he would now be afraid of the Martial Law authorities and thus agreed to give false evidence against the appellant. He further contended that the Federal Investigation Agency’s officers had shown to Welch the statement which had already been made during investigation by Masood Mahmood, and that, in any case, Welch had read Masood Mahmood’s evidence in the newspapers before he came to Lahore to give his evidence at the trial, and, accordingly, he fell in line with what was narrated by Masood Mahmood.
530. The argument is not only without substance but is also grossly unfair to the witness. It is correct that in cross-examination be did state that when Masood Mahmood talked to him on the 20th of July, 1974, at Quetta about doing away with Kasuri he did not oppose his suggestion, as he felt that this might have forced Masood Mahmood to take action against him for the reason that whatever he had told Welch might otherwise have leaked out, but at the same time he truthfully asserted that he bad no intention to get Kasuri assassinated. From the reports sent by him and the fact that he did not take any action against Kasuri it stands established that he had refused to become a patty to the commission of this offence, and handled the situation tactfully as far as Masood Mahmood was concerned. He has categorically asserted that although be had read Masood Mahmood’s statement in the press, but he was not influenced by it, nor had he been shown any previous statement of Masood Mahmood by the Federal Investigation Agency. As the oral evidence given by Welch is supported by contemporaneous documents, I think it is clear that Welch has not spoken under any extraneous pressure, specially as he has not been shown to have any motive to falsely implicate any of the appellants or approver Masood Mahmood.
531. Finally, the learned counsel contended that Welch was no better than an accomplice as he did not report the matter to any authority once tie had become aware of the design of the appellant or approver Masood Mahmood to eliminate Ahmad Raza Kasuri. According to Mr. Yahya Bakhtiar, as Director of the Federal Security Force he had the powers of a Station House Officer under subsection (3) of section 7 of the Federal Security Force Act of 1973, and under section 44 of the Criminal Procedure Code read with section 149 thereof it was his duty to prevent the commission of a cognizable offence, and by his failure to do so he became punishable under section 119 of the Pakistan Penal Code for concealment of the same. In support of these submissions he referred the Court to Phullu and another v: Emperor (A I R 1936 Lah. 731), In re: Addanki Venkadu (A I R 1939 Mad. 266) and The Crown v. Ghulam Rasul and others (P L D -1950 Lah. 129).
532. The question as to who is an accomplice in law has already been discussed earlier, and at this stage it will suffice to state that on a consideration of the three cases mentioned in the preceding paragraph, as well as a large number of other authorities cited at the Bar in this connection it is clear that an accomplice is a particeps criminis, who is consciously so connected with the criminal act done by his confederate, that he on account of the, presence of the necessary mens rea, and his participation in the crime in some way or the other, can be tried alongwith that confederate actually perpetrating the crime. A witness who could not be so indicted on account of the absence of mens rea cannot be held to be an accomplice.
533. Now, although Welch was asked by Masood Mahmood to do away with Kasuri during the latter’s visit to Quetta, yet he has made it clear that he had no intention of falling in line; nor did he, in fact, take any steps. to cause any bodily harm to Ahmad Raza Kasuri. On the contrary he took shelter behind the fact that Kasuri was well-protected by his party workers: The evidence brought on the record shows that he refused to share the common intention with Masood Mahmood.
534. The contention that he
failed to disclose Masood Mahmood’s designs to somebody else is also
unrealistic and besides the point.. The fact remains that during Kasuri’s visit
to
CONCLUSIONS AS TO EVIDENCE OF M. R. WELCH
535. On a consideration of all the aspects of the evidence given by M. R. Welch at the trial, supported as it is by contemporaneous documents, I am fully satisfied that Ma’sood Mahmood did indeed give directions to M. R. Welch at Quetta to eliminate Ahmad Raza Kasuri during the latter’s expected visit to Quetta, It also stands establised that this was done by Masood Mahmood after he had had an audience with appellant Zulfiqar Ali Bhutto who was also on tour at Quetta on that day (as evidenced by Masood Mahmood’s tour details Exh. P. W. 5/1). Although Masood Mahmood did not specifically indicate to Welch that the directions about Ahmad Raza Kasuri had come from the Prime Minister, yet it becomes clear from the evidence of Welch that Masood Mahmood did mention that Kasuri was being obnoxious in his speeches against the Prime Minister. The evidence of Welch also establishes the fact that Mian Muhammad Abbas was fully in the picture, as otherwise his letter of the 25th of September, 1974, inquiring from Welch as to where else Ahmad Raza Kasuri had stayed in Quetta if not in his hotel groom would make no sense. It has already been noticed that even the marginal note made by Masood Mahmood on the report of M. R. Welch dated the 18th of September, 1974, was addressed to Mian Muhammad Abbas in his capacity as Director, Operations and Administration. In the circumstances I agree with the learned Judges in the High Court that the oral and documentary evidence provided by Welch, read with the tour details of Masood Mahmood as contained in Exh. P. W. 5/1, provides valuable corroboration of Masood Mahmood’s testimony. It goes a long way in proving the conspiracy between Zulfiqar Ali Bhutto, Masood Mahmood and Mian Muhammad Abbas, and shows their determined anxiety to eliminate Ahmad Raza Kasuri. Welch had no motive at all to falsely implicate any of them: nor had he any connexion whatsoever with Kasuri.
THE
536. The next piece of corroborative evidence relied upon by the prosecution is the fact that on the 24th of August, 1974 an attack was launched on Ahmad Raza Kasuri at Islamabad when he was travelling in his car from the M. N, A.’s Hostel to his residence. The details of this incident have been described by approver Ghulam Hussain, who mounted the attack, but leaving his’ evidence for discussion to a later stage, it may be stated here that in the First Information Report (Exh. P. W.23/1), recorded by Inspector Nasir Nawaz (P. W. 23) at the instance of Ahmad Raza Kasuri, the details given were that there was rapid firing at his car from a blue jeep, and although he could not note down .the number of the jeep, yet he saw that one man was sitting with the driver and the other man was on the rear seat of the jeep. In the statement made by Ahmad Raza Kasuri before the National Assembly that very afternoon, when it was sitting as the Special Committee of the whole House to consider the Qadiani issue, Ahmad Raza Kasuri stated that there was rapid sten-gun firing on hint from the blue jeep. This description of the attack by Ahmad Raza Kasuri both in the F. I. R. as well as in the statement made by him in the National Assembly, makes it clear that the attack was made from automatic weapons.
537. Inspector Nasir Nawaz was
able to recover five empty cartridges from the spot indicated by Ahmad Raza
Kasuri, and reference to the recovery memo. (Exh. P. W. 23/3) prepared on that’
very day by this Police Officer shows that the empties carried on them the
marking 661/71. Only two days later the sealed parcel containing these empties
was sent for expert examination to the Inspectorate of Armaments, G. H. Q.,
538. As would appear later in
this judgment from the detailed discussion of the evidence of approver Ghulam
Hussain and the documentary evidence having a bearing on this point, Chinese
ammunition of 7.62 mm. calibre was issued to the Federal Security Force, from
the Central Ammunition Depot, Havelian, and one of the lots supplied bore the
marking 661/71, and it was out of this ammunition that approver Ghulam Hussain
was given 1500 rounds for training purposes at the Commando Camp started by him
under directions of appellant Mian Abbas, and it was out of this quantity that
several rounds ware fired in the attack on Ahmad Raza Kasuri at Islamabad. On
the basis of this evidence the
THE PRESENT INCIDENT AT
539. Now I come to the nature of
the incident of the 11th November, 1974, at
The information required vide your letter as under:
(a) Bore ... 7.62 M M. 38 M. M.
(b) Maker ... Chinese
(c) Available in
(d) By which weapon the cartridges ... Chinese 7,62 M M.
Rifle, L. M. G. & S. M.. G.... ‘ are used.
540. It has already been mentioned earlier that during those days an Inquiry Tribunal, consisting of Mr. Justice Shafi-ur-Rehman of the Lahore High Court, had been set up by the then Provincial Government to enquire into this murder. It appears that certain information in elaboration of the above report was sought by the learned Judge and the Inspectorate of Armaments, Rawalpindi after giving the requisite information again confirmed the earlier report vide their letter Exh. P. W. 32/2 dated 7-1-1975. It -is to be pointed out that a bullet-core for examination was received by the Directorate on 27-12-1974, and on examination that too was found to be of 7.62 mm x 38 mm. (It was the lead of bullet-core/metallic piece which was recovered from the head of the deceased in the United Christian (An Hospital). The word “service bore” as used in letter dated 27-111974 was explained to mean as that “calibre which is adopted by Army/Territorial elements”, and was also called as “prohibited bore”.
THE IDENTITY OF CRIME EMPTIES
RECOVERED IN
541. The report with regard to
empties recovered from the spot of w
542. When confronted with this situation, Mr. Yabya Bakhtiar argued that the ammunition of this calibre was in use with other agencies as well, and, therefore, the mere fact that the calibre of empties recovered from -the spot was the same as that of the ammunition in use of the relevant F. S. F. Battalion, did not mean that it must be the F. S. F. personnel and ammunition, who or which alone could be said to be involved in this murder. The contention has no merit inasmuch as these facts are not to be looked at in isolation, but with reference to the facts, circumstances and the context of the whole case before us. Here the prosecution case is that it were the F. S. F. personnel who carried out this Operation with the F. S. F. ammunition. Examined in that context, when the lot number and bore’ of the ammunition recovered from the spot tally with the lot number and bore of the ammunition in use with the relevant battalion of the F. S. F., a probability of their participation is clearly made out, thus providing an item of corroboration to the prosecution case in the aforesaid relevant sphere, the implication of which will have to be put in scale alongwith the other evidence on record.
QUESTION OF ADMISSIBILITY OF THE REPORTS OF
THE FIRE-ARMS EXPERT
543. At this stage Mr. Yahya
Bakhtiar took exception to the admissibility of the reports of the fire-arms expert, namely, Exh.
P. W. 32/1 pertaining to the
(a) That a report which is signed by one expert “for” another expert is not a report under the hand of a “fire-arm expert” (concerned) as contemplated by the aforesaid section; and
(b) That it has not been shown on the record that the “Chief Inspector” whose report it purports to be or, as a matter of fact, Major M. Fayyaz Haider were appointed by Government as fire-arms experts. He submitted that for the aforesaid reasons, the reports in question do not formally and legally stand proved as being of any competent fire-arms expert.
544. As against the above, the reply, of Mr. Ijaz Hussain Batalvi was that the objection regarding admissibility of these documents for want of proof or otherwise was not raised before the trial Court, where the said documents were tendered by the relevant witnesses and were duly exhibited without any objection by or on behalf of any accused; that no such objection exists in the lengthy memorandum of appeal filed by Zulfiqar Ali Bhutto, who was represented by a team of experienced lawyers, and no such point was taken by them during their main address extending over months before this Court; that it was only after the reply of the counsel for the State that for the first time this plea had been taken by Mr. Yahya Bakhtiar in his closing address; that had these points, which depend mostly on a factual controversy, been raised during the trial, the same could have been clarified, covered, or met, by the State; that allowing the documents to be exhibited without any objection really meant that the accused had waived all objections as to the mode of proof thereof, and now he cannot retract from that position at this late stage of the case.
545. He further submitted that the objections even otherwise were based on a misreading of the documents, inasmuch as the documents were really “under the hand of Major M. Fayyaz Haider”, and bore his signatures though he bad signed “for Chief Inspector”. This “for” is only for showing that the document was emanating from the office of the “Inspectorate of Armaments”, where all correspondence took place in the name of the “Chief Inspector”, although the “Chief Inspector” was not the real author of the present reports which in fact were the reports of Major M. Fayyaz Haider himself; that Major M. Fayyaz Haider was duly in the employment of the Government as an arms-expert and was working in a Government Department of that nature (i.e. Inspectorate of Armaments) and as a matter of fact, had been appointed in that Department by the “Government” as this word is defined in section 17 of the Pakistan Penal Code read with section 5(2) of the Criminal Procedure Code, and was thus not a private individual but a Government Official; that under section 14(e) of the Evidence Act a presumption can be raised that official acts were done regularly and that this presumption should be invoked in this case both with regard to the regularity of appointment of Major M. Fayyaz Haider and also qua the authority and correctness of his report:
546. Mr. Batalvi next pointed out that whereas the defence counsel had filed applications for summoning various witnesses, but .no such application was filed with regard to summoning Major M. Fayyaz Haider, which shows that the objections which were now being raised were not bona fide and well-founded, as at no stage during the trial any dispute or objection was raised in this behalf.
547. Finally, the learned
Prosecutor submitted that even otherwise the evidence of Nasir Nawaz (P. W.
23), who had investigated the
548. After giving my anxious
consideration to the matter I have reached the conclusion that in the
circumstances highlighted by Mr. Batalvi the two reports drawn up by Major
Fayyaz Haider of the Inspectorate of Armaments, G. H. Q.,
549. It is true that the burden is all along on the prosecution to prove any document on which it wishes to rely, but in the present case the objection is not as to the relevancy and admissibility of the two reports) drawn up by Major Fayyaz Haider but only as to the mode of proof. The prosecution tendered these documents in evidence in term of section 510 of the Criminal Procedure Code on the basis that being the reports of a Fire-Arm Expert they did not need to be formally proved by his evidence in Court. Now, this was a situation which could easily have been rectified by the production of Major Fayyaz Haider as a witness during the trial if an objection to his competence or status had been raised at the proper time. It has to be remembered that in two different incidents, occurring in two different districts, namely, Islamabad and Lahore, on two different dates, including 24th of August, 1974 and the 11th of November, 1974, the Superintendents of Police concerned automatically sent the empties for examination to the Inspectorate of Armaments, G. H. Q., Rawalpindi. It is also to be noticed that the examination was requested three years before the commencement of the trial, i.e. at a time when there was no controversy at all as to the competence of officers of the Inspectorate of Armaments to furnish reports under section 510 of the Criminal Procedure Code. It appears that the regular Fire-Arm Experts of the Provincial Government like Nadir Hussain Abidi (P. W. 36) were not in a position to give an expert opinion on the calibre of ammunition formally in use with units of the Army or other para-military forces, and it was for this reason that opinion of the G. H. Q. Inspectorate of Armaments was invited.
550. There is authority for the view that even in a criminal case an objection as to the mode of proof, as distinguished from the relevancy and admissibility of evidence, cannot be permitted to be raised where a party had not taken the objection at the time the document was tendered in y, evidence and placed on the record as proved. In coming to this conclusion the learned Judge had placed reliance on an earlier judgment of the Lahore High Court in Dil Muhammad and another v. Sain Das (A I R 1927 Lah. 396). A similar view was taken by the Allahabad High Court in Emperor v. Bachcha (A I R 1934 All. 873), and it was observed that the objection as to the mode of proof of the Chemical Examiner’s report could not be allowed to be raised subsequently in appeal, when the accused had not objected to its proof without calling the Chemical Examiner in the witness-box, and nor was, in fact, the nature of the contents of the packet challenged otherwise. It was held that the report of the Chemical Examiner was, in the circumstances, admissible as evidence under section 510 of the Criminal Procedure Code. Finally, reference also be made to the observations of the Privy Council in Gopal Das and another v. Sri Thakurji and others (AIR 1943 P C 83) to the effect that where the objection taken is not that the document is in itself inadmissible, but that the mode of proof, put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted on the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time as to the mode 4 of proof.
551. Apart from the fact that the objection raised by Mr. Yahya Bakhtiar ought to be rejected on the ground that it is highly belated, I find that even otherwise it is not sustainable. I already stated that the Police in two different districts, and on two different dates, had regarded! Major Fayyaz Haider of the Inspectorate of Armaments as the Arms Expert appointed by Government, and in ‘view of the presumption of regular touching to official acts, I would be inclined to presume that this was, indeed, the correct position. Further, even though Major Fayyaz Haider had signed both the reports for Chief Inspector of Armament, it does not mean that they are not his reports, as he is the officer who had examined the ammunition ‘ and drawn up the reports, but signed them in the name of the Chief Inspector of Armament, who is the head of the Organization. It was laid down by this Court in Piao Gul v. The State (P L D 1960 S C 307), that mere error in the description of the designation of a signatory is not fatal to the document so long as the official concerned possessed the necessary authority and power in that respect. Again in Public Prosecutor v. Pamarti Venkata Chalamiah (A I R 1957 Andh. Pra. 286), it was held that the mere fact that the Chemical Analyst had appended his signature to the report of an Assistant Chemical Examiner did not detract from its value or legality. In that case a further objection was raised that the official concerned had not signed the report under section 510 of the Criminal Procedure Code as Assistant Chemical Examiner to the Government of Andhra, but it was held that a reasonable inference could be drawn that it was in his capacity as Chemical Examiner to Government of Andhra that he had submitted his report.
552. Similarly in A. I. R. Manual (Civil and Criminal (2nd Edition), Vol. 5 at page 5388 while dealing with section 510, Cr. P. C. the learned authors with reference to a case reported as Madh. B L J 1954 H C R 1190 state that where the person who examined the blood-stained article was a Chemical Analyser to the Government, it was held that the report by him could not be held to be inadmissible in evidence on the ground that it was signed by him not as Chemical Analyser but as “Secretary to the Analyser”.
553. Learned counsel for the appellant referred to Muhammad Shafi v. The Crown (A I R 1949Lah 240 ), but the facts of that case are distinguishable from the facts of and questions arising in the present case. In that case neither the relevant notification appointing the Imperial Serologist nor the signature on the relevant report were covered by the earlier portion of section 510. The present case deals with the later portion of that section and even otherwise the factual position is also different.
554. If we examine the matter in this overall context it is manifest that the reports under consideration were being tendered by the prosecution witnesses above mentioned as expert reports of Major M. Fayyaz Haider. If the defence had any doubt about the authority of these documents or the status and the competency of the signatory of those documents, it could have objected to the same or requested for summoning Major M. Fayyaz M Haider for cross-examination. As no such thing was done it is too late N at this fag end of the case to raise objections as to mode of their proof.
555. For the foregoing reasons I am of the view that there is n merit in this submission made by Mr. Yahya Bakhtiar that the two report of the Fire-Arms Expert Major M. Fayyaz Haider be ruled out of consideration on the ground that they had not been properly proved in evidence, a required by section 510 of the Criminal Procedure Code.
556. Before closing discussion of this subject, reference may be made to another document having a bearing on the question of identity of ammunition, used is the crime, viz. Exh. P. W. :9/2. This is a letter of Col. Wazir Ahmed Khan of the Central Ammunition Depot, Havelian, which, was obtained by Inspector Muhammad Boota (P. W. 39), and produced in Court. This document indicates that the lot number of ammunition supplied to the relevant F. S. F. Battalion was 661/71; but as the signatory of this document was not produced to give evidence, therefore, it was argued by Mr. Yaha Bakhtiar that its contents were not properly proved, and, accordingly not admissible in evidence. The relevant deposition of Muhammad Boota in this respect was “I visited the Central Ammunition Depot, Havelian, on 28-8-1977. Col. Wazir Ahmad Khan gave me report Exh. P. W. 39/2, addressed to the Deputy Director, F. I. A. which he wrote and signed in my presence”.
557. However, later on, in the arguments and submissions appearing on page 14 of his written note No. 28, filed before us by Mr. Yahya Bakhtiar on 14-12-1978, towards the close of the case, it was stated that “in view of the admission made by the learned Prosecutor that ammunition of the calibre of 7.62 and bearing lot No. 661/71 was issued also to other units of Civil Armed Forces, the appellant does not press his submission as to the effect of non-examination of Colonel Wazir Ahmad”. In the face of this statement in writing by Mr. Yahya Bakhtiar, the earlier objections as to the mode of proof of the reports prepared by Major Fayyaz Haider as to the claibre and marking of the empties lose all significance, because even according to the recovery memos relating to both the incidents the lot number of the empties recovered from the two spots tallies with each other as well as with the ammunition supplied to the units of the Federal Security Force. This identity of ammunition used in both the incidents provides significant corroboration to the story narrated by both the approvers regarding the use of F. S. F. personnel, weapons and ammunition, notwithstanding the fact that similar ammunition may also have been supplied to other units of the Civil Armed Forces. This identity is sought to be used by the prosecution not as the sole basis of conviction, but merely as a piece of corroborative evidence to be considered alongwith all other relevant circumstances.
CORROBORATION BY SUBSEQUENT CONDUCT OF Z. A. BHUTTO
558. The prosecution has relied heavily on the subsequent conduct of appellant Zulfiqar Ali Bhutto for proving his involvement in this conspiracy. Four distinct phases of this conduct have been brought out in evidence, namely : -
(a) the appellant’s reaction at
hearing of this murder at
(b) interference of his Chief Security Officer Saeed Ahmad Khan and his Assistant Abdul Hamid Bajwa with the proper investigation of the case in 1974 ;
(c) surveillance over the movements and security arrangements of Kasuri after the murder ; and
(d) his efforts, again through the two officers mentioned above, at winning over Ahmad Raza Kasuri and bringing him back to the Pakistan People’s Party.
LEGAL POSITION REGARDING SUBSEQUENT CONDUCT
559. Before discussing the evidence led on these points, the legal position as to the effect and implications of the subsequent conduct of an accused person may briefly be noticed.
560. Section 8 of the Evidence Act provides, inter alia that “the conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto”.
561. A number of cases were cited at the Bar on both sides to bring out the scope and application of this section. Mention may be made of Emperor v. Percy Henry Burn (4 I C 268), Laijam Singh v. Emperor (A I R 1925 All. 405), Muhammad v. Emperor (A I R 1934 Lah. 695), Rajmal Marwadi v. Emperor (A I R 1925 Nag. 372), Chatru Malik v. Emperor (A I R 1928 Lah. 681), Shankarshet Ramshet Uravane v. Emperor (A I R 1933 Bom. 482) and Rangi Lall v. Emperor (A I R 1930 Oudh 321).
562. The principles emerging from these cases are that the subsequent conduct to be utilized against an accused person should be incompatible with his innocence and should not be capable of explanation on any other, hypothesis, and that if the prosecution attempts to utilize the conduct of person other than the accused, then it should be shown in the first instance that such conduct was with the knowledge and authority of the accused and the subsequent conduct may be utilized as furnishing corroboration of other substantive evidence, but by itself it does not furnish proof of the guilt of the accused.
EVIDENCE AS TO SUBSEQUENT CONDUCT
563. Turning now to the evidence as to the subsequent conduct, Masood Mahmood has stated that he was on tour at Multan, in connection with the visit of the Prime Minister, when very early in the morning on the 11th of November, 1974, he received a telephone call from Zulfiqar Ali Bhutto who said “your Mian Abbas has made complete balls of the situation. Instead of Ahmad Raza Kasuri he has got his father killed”. On being summoned later to the residence of the then Governor of the Punjab, Mr. Sadiq Hussain Qureshi, where the appellant was staying, the witness met the appellant in the presence of Mr. Qureshi and the appellant most non-chalantly informed him of the news about the death of the deceased in this case as if there had been no talk between them earlier about this matter. Masood Mahmood said in reply that he had also heard about the murder.
564. The presence of the Prime
Minister as well as of approver Masood Mahmood at Multan on the 11th of
November, 1974, has not been disputed by the defence; but it has been
vehemently contended by Mr. Yahya Bakhtiar that the story narrated by Masood
Mahmood as to the timing and content of his telephonic conversation with the
appellant, after the news of the murder reached him, is improbable and
fabricated. He further contends that it is also incorrect that Masood Mahmood
met the appellant at the house of Mr. Sadiq Hussain Qureshi at
565. From Masood Mahmood’s T. A. Bill (Exh. P. W. 2/9) as well as the tour details embodied in Exh. P. W 2/8 as prepared by Ahmad Nawaz Qureshi,
Private;Secretary to Masood
Mahmood on the 12th November, 1974, it appear that the purpose of his tour to
lahore: Multan, Bahawelpur and Rahimyar khan was “meetings with the Prnime
Minister Governer Punjab, and to look after the affairs of the Federal Security
Force during the Prime Minister’s tour of the Bahawalpur Division’ From the
very nature of duties assigned to Masood Mahmood and the director of the former
Prime Minster that Masood Mahmood must be present at places visiteed by the
Prima Minister on tour, it can safely be inferred that Masood Mahmood was bound
to meet the Prime Minister during these tours, when the two were present in the
same station. I consider, therefore, that there would be nothing improbable or
unnatural in Masood Mahmood’e meeting the. Prime Minister at
566. It was contended by Mr.
Yabya Bakhtiar that Masood Mahmood’s assertion that he had visited the Prime
Minister at Mr. Sadiq Hussain Qureshi’s residence in Multan is negative by the
evidence of Manzoor Hussain (P. W. 21), who was then working as driver on the
personal staff car of Masood Mahmood. It was submitted :hat the driver has
admitted in cross-examination
that the Director-General
had not visited any place in
567. A perusal of the relevant
portion of the evidence of the driver shows that there is no such categorical
statement of the nature described by Mr. Yahys Bakhtiar. Manzoor Hussain stated
that D-G. was staying
in Canal :Zest House,
568. It will bw seen that giving
evidence, tier more than three years of the went, Manzoor Hussain did not
remember the details of the places visited by the Director-General on the I0th of
November, 1914, iu iviultau, nor did he remember whether he had taken ilk4 D:
G. to any place in Multan before driving him to the airport. This statement
cannot be construed as meaning a positive contradiction of Masood Mahrouod’s
testimony regarding his visit to the Prime Minister before his departure for
569. The next question now is
whether the telephonic conversation described by Masood Mahmood between him and
appellant Zulfiqar Ali Bhutto early in the morning of 11th of November 1974,
took place or not. In this connection it was contended by Mr. Yahya Bakhtiar
that Masood Mahmood had not mentioned the early morning telephone call in his
previous statements, and that, in any case, it was highly unlikely that without
the aid of his personal staff like Military Secretary or A. D. C. the Prime
Minister would have begin in a position to ring up Masood Mahmood at such an
early hour’ in the morning. While dealing with the question of omissions and
contradictions etc. it has already been stated that Masood Mahmood has
explained the omission in his previous statements by saying that he had given
the contents of the telephonic conversation only on being questioned at the
trial. The explanation appears to be reasonable, as in the previous statements
he was not giving such minute details but only the broad events, and he did
mention that he was present at
570. As to the submission that
the Prime Minister could not contact any body without the assistance of his
personal staff at all times of the day and night, all 1 can say is that no
foundation was laid for such a submission in the cross-examination of Masood Mahmood. It is not possible to
accept the proposition that tree Prim-.
Minister of a country could not contact any of his subordinates on the
telephone at an early hour in the morning simply because his personal staff had
not come on duty by that time. Surely the telephone operators, who are on duty
round the clock, would be able to put the Prime Minister through to any other
telephone number in
INTERFERENCE WITH THE INVESTIGATION OF THE CASE
571. The next piece of incriminating subsequent conduct relied upon by the prosecution is the Glleged interference by appellant Zulflqar Ali Bhutto with the proper investigation of the case by the officers of the Punjab Police. The prosecution claims that the investigation commenced with the recording of the First Information Report, is which Bhutto’s name was specifically mentioned by Ahmad Raza Kasuri, was practically brought to a halt within twenty-four hours due to the interference of the Prime Minister through the agency of his Chief Security Officer Saeed Ahmad Khan and his Assistant the late Abdul Hamid Bajwa.
572. Whether it was by chance, or
according to a pre-arranged
plan, the late Abdul Hamid Bajwa was present in
573. Senior Superintendent of Police Asghar Khan and his Deputy Inspector-General of Police Abdul Vakil Khan (P. W. 14) have both spoken of frequent visits of Abdul Hamid Bajwa to Lahore during the months of November and December 1974, and January and February 1975, and these movements are also proved by the relevant T. A. Bills of Bajwa, one of which, namely, Exh. P. W. 3/5 has already been mentioned. The other bills have been marked as Exh.p. W. 3/6 to Exh. P. W. 3/10. It appears that Bajwa was in direct contact with the subordinate police officers, as is evident from a note (Exh. P. W. 3/2-A) sent on the 22nd of November 1974, by Deputy Superintendent of Police Abdul Ahad to Abdul Hamid Bajwa enclosing a copy of the First Information Report registered by Kasuri soon after the incident. Below this note is a minute recorded by Abdul Hamid Bajwa on the 23rd of November 1974, stating as follows :----
“CSOPM wanted to see the F. I. R. The occurrence took place at about (00-301. The case was registered after (?) 3 a.m. (03-00 firs.) on the statement of Mr. A. R. Kasuri.
(What prevented them to register case immediately it was known that attempt to murder was made! This statement would have formed part of the case diary in that case-and not F. I. R.!).”
574. Abdul Hamid Bajwa marked this note to the Chief Security Officer to the Prime Minister (i e. Saeed Abmad Khan), and then the latter added a note of his own, endorsing the comments of Abdul Hamid Bajwa and saying “such an incident, involving firing in the heart of the town not far away from the police station, could have been detected immediately by the local police, and a case registered suo moto by the police of the occurrence.”
575. This note was marked to the
Secretary to the Prime Minister, and the copy placed on the record of the trial
shows that the ‘words “I agree with you. (
576. There was considerable
argument at the Bar as to how these words “I agree with you. (
577. D. I.-G. Abdul Vakil Khan has deposed at the trial that Abdul
Hamid Bajwa had also inquired from him as to why the Prime Minister’s name
could not have been kept out of the F. I. R., and he also made another inquiry
about the empties recovered from the spot. It was further brought out in
evidence that D. S. P. Abdul Ahad proceeded to
578. Now, as to the role played by Saeed Ahmad Khan, in. connection with the investigation of the case, we have, in the first place, the statement of Saeed Ahmad Khan himself. He has deposed at the trial that in December 1974, or January 1975, he was taken to task by the then Prime Minister for sitting in Rawalpindi when the Prime Minister’s name was being mentioned in connection with the present incident before the Tribunal presided over by Mr. Justice Shafi-ur-Rehman of the Lahore High Court.
579. He, accordingly, proceeded
to
580. Armed with these directions
Saeed Ahmad Khan again visited Lahore, and had meetings with all concerned in
the office of the Home Secretary and it was decided that Muhammad Waris (P. W.
15) and D. S. P. Abdul Ahad would come to meet him at Rawalpindi. When these
officers met him at
581. Saeed Ahmad Khan also wrote a letter (Exh. P. W. 3/3-A) to the Defence Secretary to the Government of Pakistan on the 17th of January 1975, to which he received a reply on the 20th of January 1975, (Exh. P. W. 3/3-C), stating that Chinese weapons were in use with units of the Federal Security Fore as well as the Frontier Corps. As Saeed Ahmad Khan had been given instructions to keep the Federal Security Force out, he got perplexed and went back to the Prime Minister and showed him the Defence Secretary’s letter, and inquired as to, whether it should be produced before the Tribunal. On this appellant Zulfiqar Ali Bhutto got annoyed and asked Saeed Ahmad Khan whether he had been sent to safeguard his interests or to incriminate him, and directed that this letter would not be produced before the Tribunal.
582. It was submitted by Mr. Yahya Bakhtiar that information as to the availability of the weapons in question with the units of the Federal Security Force had already been obtained directly by Mr. Justice Shafi-urRehman from the Headquarters of the Federal Security Force and, therefore, there was no point in Saeed Ahmad Khan’s writing to the Defence Secretary on the 17th of January 1975, and obtaining a report from him within three days. The learned counsel contended that this shows that this was an unnecessary reference, and was made by Saeed Ahmad Khan on his own. It stems to me that in the present context the relevant
At this stage a should be mentioned that Senior Superintendent of police Muhammad Asghar his stated at tire trial that Screed Ahniad Khan had disclwed to the officers at Lahore that he had been deputed by the Prime Minister.
583. Another step taken by Saeed Ahmad Khan in this natter was the writing of a note (Exh. P. Vi, .3/3-D) on the 1st of February 1975, to Mr. S.M. Qutb, Director-General, Information and Broadcasting Division Government of Pakistan, asking him to give publicity to certain statements made before Mr. Justice shafi-ur-Rehman, as those statements appeared to Sated Ahmad Khan to to “favourable”. A copy of this note was sent by Screed Ahmad Khan the Prime Minister’s Secretary Mr. Afzal Said Khan, and it was seen and signed by Zulfiqar Ali Bhutto on the 2nd of February, and marked back to the Chief’ Security Officer.
584. The Director-General (News) sent a reply to this note (Exh. P. W. 3/3-F) on the 6th of February 1975, stating that the statement in question had already been reproduced in certain newspapers, but nevertheless further publicity was given iii the newspapers on the 2nd and 3rd of February 1975. Here against the appellant was fully in the picture as tothe action iaxrd by Saeed Ahmad Khan to publicise these favourable statements made by certain witnesses before the Inquiry Tribunal.
585.It appears from the evidence
that during his visit to
586. Intemeddling of S,,eed Ahmad Khan with the handling of the Report submitted by he Inquiry Tribunal to the Punjab Government is also established on the record. In the first place, the evidence of Saeed Ahmad khan may be aeferred to in this behalf. He stated at the trial that ;-
“As far as I remember the Tribunal gave its finding on 27th February 1975, and I put up a note to the Prime Minister on 28-2-1975 which is at page 114 in Exh.p.w.3/3 .It is marked as Exh p w .3/3-1.the note to the effect that the tribunal had criticised the lapses in the investigation at the initial stages but seemed to have been satisfied with the investigation carried on later by the D. S. P., C. I. A., Lahore. I, therefore, recommend that the relevant portions of the report may be published. This note is signed by me on 28-2-1976. There is a note in the Prime Minister’s own hand to the effect, “I will decide when I see the report”. I identify the; handwriting and signatures of Mr. Bhutto on this note which are marked as Exh. P. W. 3/3-J. This note came back, to me and I retained it on the file, and as directed I made a note on it stating, ‘keep it pending’.”
587. Sated Ahmad Khan then stated
that he received a D. O. letter from the then Chief Secretary,
588. At about the same time the Chief Minister of the Punjab Mr. Haneef Ramay, wrote a D. O. letter (office copy dated the 7th of March 1975, placed on the record as Exh. P. W. 35/3), to the then Prime Minister enclosing the Inquiry Report of the Tribunal in original, and giving a summary of the conclusions of the Report in the body of the letter itself. The letter stated that the Tribunal had expressed the opinion that the attack was directed at the life of Ahmad Raza Khan Kasuri and it was incidentally that his father was injured and died; that in view of the identity and the type of the weapon used it appeared that the occurrence had taken place at Lahore and the one at Islamabad about three months earlier had a common inspiration, motive and organisation, even if the perpetrators were different; that the motive behind this occurrence was political, that is, the public utterances, and party affiliations of Ahmad Raza Khan, rather than any dispute with regard to property or personal dealing with individuals; and that the perpetrators of the crime were well organised, well equipped, resourceful and persistently after Ahmad Raza Khan’s life and that yet another attack on his life was quite probable.
589. The Chief Minister further stated that the Tribunal had given certain directions for the guidance of the Investigation Agency, including expert examination of all the recovered articles together with a view to narrowing down the class of weapon used in the commission of the crime and a more purposive interrogation of the natural witnesses of the occurrence, that is, residents of the area, invitees at the house where the wedding was taking place and of the patrol parties, for ascertaining the number of shots fired, number of weapons used and the suspects. The Chief Minister informed the Prime Minister that he had discussed the report with the Prime Minister’s Chief Security Officer and had asked the Chief Secretary to send him a copy thereof, and another copy was being sent to the Inspector-General of Police with the directions that he should 41 obtain the explanations of Police Officers against whom aspersions had been made in the Report, and that he should take necessary steps to implement the directions given by the Tribunal to the Investigation Agency.
590. The letter concluded with the following sentence:----
“I seek your guidance, Sir, whether the report of the Tribunal should be made public.”
591. This letter was marked by the Prime Minister to Sated Ahmad Khan on the 18th of March 1975, with the remarks: “What was the point of discussing it with you? Please discuss” (vide the extract from the relevant register marked Exh. P. W. 27/2). Sated Ahmad Khan says that after receiving these directions, he discussed the matter with the Prime Minister and he was told that the Report shall not be published as it was adverse; and Sated Ahmad Khan was further told by appellant Zulfiqar Ali Bhutto that he should have nothing to do with this case.
592. The original Report sent by
the Chief Minister,
593. A few further facts may be
stated to complete this part of the story. Not only that the Inquiry Report was
not published, but there is no evidence whatsoever to show that the
Investigation Agency took any steps to interrogate-any official of the Federal Security Force, or of an other
unit to which the ammunition used in the attacks, and recovered from the spot
in both cases, had been issued from time to time, in spite’ of the fact that
the Tribunal had expressed the opinion that the perpetrators of the crime were
well organised, well equipped and resourceful already stated the case was filed
as “untraced” on the 1st of October 1975, even though Ahmad Raza Kasuri had
been crying hoarse for justice, and had gone to the extent of publicly
declaring that he would not get justice as long as Zulfiqar Ali Bhutto was in
power. It may be stated that the case relating to the attempt on his life at
CONCLUSIONS AS TO INTERFERENCE WITH THE INVESTIGATION.
594. From the oral testimony of Sated Ahmad Khan, D. L.G. Abdul Vakil Khan, S. S. P. Muhammad Asghar and D S. P. Muhammad Waris, supported by the relevant documents as mentioned in the preceding paragraphs, it becomes abundantly clear that both Sated Ahmad Khan and his Assistant the late Abdul Humid Bajwa, were in direct touch with Police Officers at Lahore; that they took various step, with a view to ensuring that the investigation did not connect the Federal Security Force, or the then Prime Minister, with this incident; and that, with the knowledge of the former Prime Minister, directions were given to the Information Department of the Government of Pakistan to give publicity to the statements of certain witnesses before the Inquiry Tribunal which were considered by Sated Ahmad Khan to be favourable. The Police Officers concerned have made it absolutely clear that they did not have an independent hand in investigating this crime, and their local officers and , superiors had left them at the mercy of Sated Ahmad Khan and Abdul Hamid Bajwa.
595. This evidence also proves
that Sated Ahmad Khan not only tried to influence the course of Inquiry before
the Shah-ur-Rehman Tribunal but that he
was subsequently fully associated with the decision of the question whether the
Report should be published or not. He discussed this matter with the Chief
Secretary and the Chief Minister of the
DEFENCE CRITICISM OF SAEED AHMAD KHAN AND ABDUL HAMID BAJWA
596. It was contended by Mr. Yahya Bakhtiar that in the first place, Saved Ahmad Khan and Abdul Hamid Bajwa were busy-bodies, who were acting on their own in this matter only to show their loyalty to the Prime Minister, and, therefore, any action taken by them to interfere with, or influence, the course of the investigation of the case cannot be used against the appellant; that even otherwise the steps alleged to have been taken by these two officers were simply intended to clear the name of the Prime Minister who had been falsely implicated in this case by Ahmad Raza Kasuri owing to political enmity.
597. The first part of the
contention is clearly untenable. It has already been seen that the First
Information Report lodged by Ahmad Raza Kasuri at
598. In any case, there can be no
doubt at all that Sated Ahmad Khan’s movements and actions could not be
without the knowledge and permission of
his employer, namely, the appellant. He has asserted in his oral evidence at
the trial that he was specifically directed by the prime Minister to proceed to
Lahore in connection with the inquiry which was being held by the Shafi-ur-Rehman Tribunal. That he, in fact, did so and had several
meetings with the official of the Provincial Government is not open to doubt.
In fact, it appear at he also had discussions with the then Chief Minister and
the Chief Secretary,
599. Mr. Yahya Bakhtiar submitted that Saeed Ahmad Khan was in the habit of over-stepping his authority, and interfering with the functions of other departments without the permission and knowledge of the then Prime Minister, and for that reason he had to be admonished on several occasions. The learned counsel referred to some instances which had been brought out in Saeed Ahmad Khan’s cross-examination, and contended that it is probable that he was behaving in the same manner in connection with the investigation of the present murder case.
600. The first matter alluded to by Mr. Yahya Bakhtiar was a letter written by Saeed Ahmad Khan to the President (i.e. appellant Zulfiqar Ali Bhutto) on 12-9-1971 in connection with re-instatement of certain Police Officers compulsorily retired in the Sind Province. The letter itself was not formally proved on the record, but it was suggested in cross-examination that Saeed Ahmad Khan’s brother, who was employed under the Sind Government, was pulled up in this regard. This does not appear to be a good instance as admonition was not administered to Saeed Ahmad Khan, but for some reason to his brother.
601. The second occasion is said to have arisen in October 1972, when Saeed Ahmad Khan was snubbed by Zulfiqar Ali Bhutto in the presence of certain Intelligence Chiefs, and he subsequently expressed his regrets in his letter of the 6th of October 1972 (Exh. P. W. 3/15-D). This letter makes interesting reading, as it shows his intense loyalty to Zulfiqar Ali Bhutto. He stated, inter alia, that “I am devoted to you and your cause and I feel I have contributed at least to some extent, to your well-being in exposing the sinister and deep-rooted plans woven round you by interested parties in the short period I have worked for you.” He added “I promise “you, Sir, with all emphasis at my command that I can lay down my life for you, but I only need a little encouragement from you and a word of cheer in return. I certainly need your guidance at every step”. He ended this letter by saying “I again apologise profoundly for any lapse on my part and can assure you that 1 will be extremely careful in future and will not give you a chance for annoyance. Believe me, Sir, I am yours and draw all my strength from you, in performance of my arduous duties, assigned to me from time to time”.
602. While this document does show that some actions of Sated Ahmad Khan may have been resented by the Intelligence Chiefs, and, therefore, brought to the notice of the then President, it also shows that the appellant was capable of taking Saeed Ahmad Khan to task, even in the presence of other high officials, if he felt that Saeed Ahmad Khan had over-stepped the authority given to him. The letter, of course, also furnishes documentary proof of Sated Ahmad Khan’s intense personal loyalty to Zulfiqar Ali Bhutto. It nevertheless appears from another letter written by Saeed Ahmad Khan to the then President, on the 30th of August 1972, and brought on the record by the defence as Exh. P. W. 3/13-D that on certain occasions Saeed Ahmad Khan was entrusted with files belonging to other Intelligence Agencies, and, therefore, it would, perhaps, not be correct to say that he had not been given any authority to meddle with the work of these Agencies.
603. The third instance sought to be brought out in cross-examination was that he was reprimanded by Zulfiqar Ali Bhutto for interfering in the affairs of the Pakistan Foreign Office, but Saeed Ahmad Khan repelled this suggestion, and asserted that he was looking into the matter in question under instructions from the Prime Minister, and t: it he was reprimanded for having over-stayed abroad and not for interfering with foreign affairs. As there is no document having a bearing on this point, I see no reason to reject the assertions made by Saeed Ahmad Khan.
604. From the facts relied upon by Mr. Yahya Bakhtiar, the impression clearly emerges that if Saeed Ahmad Khan overstepped his authority or interfered with matters not entrusted to him by his employer, then the latter was certainly capable of pulling him up.
605. However, there is no such material on the record to show that appellant Zulfiqar Ali Bhutto, at any stage, pulled up Saeed Ahmad Khan for interfering with the investigation of this case, or putting tip suggestions to him during the progress of the Inquiry before the Shafi-ur-Rehman Tribunal nor did the Prime Minister object to Saeed Ahmad Khan discussing matter with the Chief Minister and Chief Secretary and other officials of the Punjab Province. The documents already referred to in the proceeding paragraph leave no doubt whatsoever that Saeed Ahmad Khan was keeping the appellant fully in the picture as to the progress of his efforts. There is therefore, no substance in the contention that all these steps were taken by Saeed Ahmad Khan, or his Assistant Abdul Hamid Bajwa, without the knowledge and authority of the appellant.
NATURE AND EFFECT OF INTERFERENCE WITH THE INVESTIGATION
606. The question now is whether the actions taken by these two officers were intended merely to vindicate the honour and innocence of the appellant, or whether they display a guilty mind on the part of appellant Zulfiqar Ali Bhutto and are incompatible with his innocence.
607. One can certainly agree with Mr. Yahya Bakhtiar that if Kasuri had brought a false accusation against the sitting Prime Minister in regard to the murder of his father, it would be a natural reaction on his part to take steps to protect his name and honour, and for this reason he could depute his Chief Security Officer and the latter’s Assistant to try and ensure that the investigation was conducted on proper lines, and that all other motives and enmities were looked into for the purpose of tracing the real culprit. Un fortunately, however, the steps taken by Saeed Ahmad Khan and Abdul. Hamid Bajwa were not confined to only this aspect of the matter. The information obtained by Saeed Ahmad Khan from the Defence Secretary was not placed before the Tribunal, and the importance of this fact is not diminished by saying that Mr. Justice Shafi-ur-Rehman bad already made a similar inquiry from the Federal Security Force or JADO. There is no indication on the record that Saeed Ahmad Khan had been informed by the Tribunal or by any other officer that the information given by the Defence Secretary was already available with the Tribunal. There was thus a conscious suppression of information which might have implicated the Federal Security Force. It has also already been remarked that if an honest inquiry into the existence of other motives and family disputes involving Ahmad Raza Kasuri was desired, then people like Yaqoob Maan and others, who were his local political rivals in Kasur, should have been interrogated under the guidance given by Saeed Ahmad Khan, but the evidence of Muhammad Waris showed that this was not done. Further, once it became known that automatic weapons had been used, and even the Tribunal had indicated that the perpetrators of the crime were well-equipped and well organised, the investigation ought to have travelled in the direction of the Federal Security Force and other units using this kind of ammunition, but no such effort was made. Even the report of the Inquiry Tribunal was not allowed to be published. These facts clearly indicate that the appellant and his officers were not acting simply to vindicate the appellant’s name but also to prevent the investigation from travelling in the proper direction. Mr. Ijaz Hussain Batalvi rightly submitted that Saeed Ahmad Khan, acting on his own, had no special reason to try to protect the Federal Security Force from investigation, and this protection could come only from the appellant, who was the common boss of Sated Ahmad Khan as well as the Federal Security Force. The cumulative effect of all these actions is that they are incompatible with the innocence of the appellant, for they all tended to shield the real culprits rather than to uncover their identity. It is not difficult to see that if the investigation had travelled in the direction of the Federal Security Force and Masood Mahmood in 1974, there was a danger of Masood Mahmood making a disclosure of the kind which he has made in 1977.
SURVEILLANCE OF KASURI AFTER THE MURDER OF HIS FATHER
608. The prosecution has next alleged that after the present murder appellant Zulfiqar. Ali Bhutto’s officers kept the movements and security arrangements of Ahmad Raza Kasuri under surveillance, and submitted regular reports in this behalf to the appellant, thus showing an unusual interest in Ahmad Raza Kasuri and also proving the fact that all this was being done with the knowledge and authority of the appellant.
609. The first in the series is a note (Exh. P. W. 3/2-K) dated the 28th of November, 1974, addressed by the late Abdul Hamid Bajwa to the Secretary to the Prime Minister, with a copy to Federal Minister Abdul Hafiz Pirzada for information. After narrating the remarks made by Ahmad Raza Kasuri on his arrival at the Government Hostel, Islamabad, on the 27th of November, 1974, this note states that Ahmad Raza claimed that four persons had been deputed to kill him, who fired from automatic weapons, while hiding near the Shadman Roundabout, and that plans were afoot by the Government to do away with the assailants so that no proof was left to trace the murder, and that a message was pissed from Lahore to Rawalpindi after the mission was completed.
610. On the very next day i.e. 29th of November, 197 ‘, Abdul Hamid Bajwa sent another note (Exh. P. W. 3/2-L) to the Secretary to the Prime Minister stating that Ahmad Raza Kasuri, M. N. A., may project certain demands in the National Assembly for his personal protection, investigation into the murder case by the Army Intelligence and the grant of licences for the weapons held by his father, including a gun and a prohibited bore revolver. This note ends with the significant remark to the effect that “he is being conveyed, through a contact that such arms have to be deposited with Police or arm dealers, under the orders of the District Magistrate”. Copies of this note were endorsed to the Speaker of the National Assembly of Pakistan and two Federal Ministers, Mr. Abdul Hafiz Pirzada and Malik Mairaj Khalid.
611. Abdul Hamid Bajwa sent another note (Exh. P. W. 3/2-N) to the Secretary to the Prime Minister on the 8th of December, 1971, endorsing its copy to the Speaker of the National Assembly, stating that “according to a secure report Mr. Ahmad Raza Kasuri, M. N. A., told a friend that privilege motion was moved by him, about the assassination of his father, but most of his speech was expunged. He had stated on the floor of the house that Mr. Bhutto is the murderer of his father and he should be brought before the Court of law. This note was seen by the former Prime Minister on the 10th of December, 1974, as is evidenced by his signatures on the same, and marked to C. S. O. (P. M.).
612. On the same date Abdul Hamid
Bajwa sent still another note (Exh. P. W. 3/2-O) to the Secretary to the Prime Minister, stating that “according
to a secure report Ahmad Raza Kasuri requested Mr. Nusrat Baig, Deputy
Secretary, Ministry of Defence, to look into the case of Mr. Muhammad Sadiq
Khokhar, Superintendent E. M. Grade I, M. E. S. at Risalpur, where his services
were-terminated on 8th
June...” There is an endorsement at the bottom of this note in the following
terms “When did Kasuri’s recommendations become necessary in the Ministry of
Defence. (
This endorsement is marker to the Defence Secretary by name.
613. It appears that in pursuance of these observations made by the former Prime Minister, the matter was following up by the Ministry of Defence and an explanation was obtained from Mr. Nusrat Baig, and a copy thereof was transmitted by the Additional Secretary in the Ministry of Defence to Abdul Hamid Bajwa on the 27th of December 1974 (Exh. P. W. 3/2-P).
614. Abdul Hamid Bajwa seems to have been very active in-submitting reports on Ahmad Raza Kasuri to the Prime Minister, as would appear from the fact that on the 9th of December, 1974, he sent another note to the Secretary to the Prime Minister which was seen by the then Prime Minister on the 10th of December, which is the date given under his signatures on this document placed on the record as Exh. P. W. 3/2-Q. This note contained a gist of a conversation between Ahmad Raza Kasuri and his brother Sher Ali about the appointment of Justice Shafi-ur-Rehman as an Inquiry Tribunal and other related matters.
615. The last communication in
this series made by Abdul Hamid Bajwa is a note sent by him on the 11th of
January, 1975 (Exh. P. W. 3/2-R)
to the Speaker of the National Assembly, enclosing a report sent to Bajwa by
Assistant Director Ashiq Muhammad Lodhi (P. W. 28) to the effect that Ahmad
Raza Kasuri had engaged a gun-man
by the name of Sher BaT Khan, who was seen carrying Kasuri’s brief-case when Kasuri goes into
the house of the National Assembly. A description of Sher Baz Khan was also
given in this report. A copy of this report was also endorsed by Bajwa to the
D. I. G. Police,
616. It will be seen that most of these notes and reports had been submitted directly by the late Abdul Hamid Bajwa to the Secretary to the Prime Minister, and some of them then came back to Saeed Ahmad Khan after having been signed by the appellant Zulfiqar Ali Bhutto. Mr. Yahya Bakhtiar was right in submitting that the contents of these source reports/intelligence reports cannot be said to have been properly proved, as the makers thereof were not examined at the trial. However, in the present context, the Court is not concerned with the correctness or otherwise of the contents of these notes, but simply with the fact that Abdul Hamid Bajwa was sending these successive notes or reports to the Prime Minister and some other authorities on the movements and fulminations of Ahmad Raza Kasuri during the early days of his return to Islamabad after the murder of his father. The number and quick succession in which these notes/reports were sent to the Prime Minister and others, clearly show that Ahmad Raza Kasuri was being kept under active surveillance by Abdul Hamid Bajwa and his men. Saeed Ahmad Khan was kept informed about these reports when they came back to his office after having been seen by the Prime Minister.
617. Saeed Ahmad Khan himself sent a note (Exh. P. W. 3/2-M) to the Secretary to the Prime Minister on the 7th of December, 1974, which was also seen and signed by appellant Zulfiqar Ali Bhutto on the 10th December and returned to the C S O. (P. M.) Attached with this note was a cope of the privilege motion filed by Ahmad Raza Kasuri in the National Assembly on the 29th of November, 1974, stating that it was brought on the records of the proceedings of the National Assembly. Saeed Ahmad Khan added that;
“this note contains a pack of lies and incidents relate to 1971 before P. P. P. came in power. Copies of this note, however, were distributed by Ahmad Raza Kasuri, and his henchmen to foreign Embassies and to foreign Journalists, including Chinese News Agency.
Ahmad Raza Kasuri is in a desperate state and has been heard saying that he will take revenge, of the murder of his father personally.”
After this note came back to
Saeed Ahmad Khan, he marked it to his Stenographer with the remarks “I will
take this to
CONCLUSIONS AS TO KASURI’S SURVEILLANCE
618. A perual of the documents mentioned in the preceding paragraphs shows that at least four of them were seen by the former Prime Minister on the same day i.e. 10th of December, 1974. The notes/reports sent by Abdul Hamid Bajwa and Saeed Ahmad Khan to the Prime Minister are indicative of not only the interest taken by the Prime Minister and his staff in the movements of Ahmad Raza Kasuri, but they also show that Ahmad Raza Kasuri was suffering from intense anger and desperation at the time these reports were prepared. Mr. Yahya Bakhtiar submitted that no sinister meaning should be attached to the report sent by Ashiq Muhammad Lodhi giving the description of Ahmad Raza Kasuri’s gun-man, as it had already been reported that Ahmad Raza Kasuri was desperate and thinking of taking personal revenge. This may be a plausible explanation, taken in isolation; but the cumulative effect of the large number of reports submitted in quick succession to the Prime Minister is unmistakably to show that Ahmad Raza Kasuri was, indeed, being kept under special surveillance as to his movements and security arrangements during the period following the attack on him and the assassination of his father. Such action is not compatible with the appellant’s innocence, as it clearly sows an apprehension on his part arising as a consequence of the occurrence of 11th November, 1974.
EFFORTS TO BRING KASURI BACK TO THE P. P. P.
619. Finally, the prosecution has alleged that the appellant Zulfiqar Ali Bhutto made strenuous efforts, through his Chief Security Officer Saeed Ahmad Khan and his Assistant Abdul Hamid Bajwa, to win over Kasuri and bring him back to the Pakistan People’s Party after the assassination of his father, which efforts can be explained only on the hypothesis that Zulfiqar Ali Bhutto bad a guilty conscience, and wanted to somehow placate Ahmad Raza Kasuri. The evidence produced in this behalf consists of the oral testimony of Ahmad Raza Kasuri as well as that of Saved Ahmad Khan., supported by a large number of documents.
ORAL STATEMENT OF KASURI ON THIS SUBJECT
620. According to Abmad Raza
Kasuri, Saeed Ahmad Khan and his assistant Abdul Hamid Bajwa started visiting
him at his house in
EVIDENCE OF SAEED AHMAD KHAN ON THE SAME SUBJECT
621. On the same subject, Saeed Ahmad Khan deposed at the trial that in the middle of 1975 there was a rift growing between Ahmad Raza Kasuri and the Chief of the Tehrik-e-Istaqlal Party, namely, Air Marshal (Rtd.) Asghar Khan, and he was instructed by the Prime Minister to try to win over Ahmad Raza Kasuri and bring him back to the P. P. P. fold. Since the witness did not know Ahmad Raza Kasuri, he informed the Prime Minister that he would ask Abdul Hamid Bajwa to initiate the matter, whereupon the Prime Minister informed the witness that Bajwa had already been given instructions on the subject. It appears that in accordance with these instructions Abdul Hamid Bajwa initiated talks with Ahmad Raza Kasuri, and persuaded the latter to meet Saeed Ahmad Khan. During the first meeting, Saeed Ahmad Khan asked Ahmad Raza Kasuri to consider the rejoining of the Pakistan People’s Party of which he claimed to be a founder member, since he had parted company with Air Marshal Asghar Khan. On this Ahmad Raza Kasuri retorted how could he rejoin a party headed by Zulfiqar Ali Bhutto who had been responsible for the murder of his father and was also after his blood. The witness told him that it was all the more reason that he should make up with the appellant and not put his life in jeopardy as he knew that he was a marked man. He also told Kasuri that if he rejoins the People’s Party he might even be rehabilitated. Ahmad Raza Kasuri requested for time to think over the matter, and later on he agreed with the soundness of this suggestion, and asked Saeed Ahmad Khan to inform the appellant that he was prepared to rejoin the Pakistan People’s Party, and he would like to meet him (i.e. Zulfiqar Ali Bhutto).
DOCUMENTARY EVIDENCE REGARDING WINING OVER OF KASURI
622. Reference may now be made to the documentary evidence brought on the record in this behalf. The first in the series is a note (Exh. P. W. 3/2-C) written by the late Abdul Hamid Bajwa on the 3rd of June, 1975, to the Secretary to the Prime Minister stating that “Ahmad Raza Kasuri, M. N. A., had stated that he is out for a forward block in T. I. P. In fact, he is thinking of forming an independent political party. He has discussed this topic with his close associates and will decide of doing so this evening”. The appellant Zulfiqar Ali Bhutto saw this note on the 6th of June, 1975, as is evidenced by his signatures bearing that date, and returned the same to the Chief Security Officer. On the very next day, i.e. the 4th of June, 1975, Saeed Ahmad Khan himself sent another note (Exh. P. W. 3/2-D) to the Secretary to the Prime Minister giving certain details of Kasuri’s dissatisfaction with the Chief of the Tehrik-e-Istaqlal Party, and ending with the significant remark that “arrangements are in hand to widen the gulf between Asghar Khan and Raza Kasuri, through other sources also.” An objection was taken by the defence to the admissibility of Exh. P. W. 3/2-D on the ground of its being a copy of the original. Even if it is excluded from consideration, it does not materially affect the position.
623. On the 29th of July, 1975, Saeed Ahmad Khan, sent another note (Exh. P. W. 3/2-E) to the Secretary to the Prime Minister, which would bear reproduction here in full;
“Mr. Ahmad Raza Kasuri, M. N. A.,
has had number of meetings with me, the last one being at
Mr. Ahmad Raza Kasuri has requested for an audience with the Prime Minister at his convenience.”
624. The contents of this note appear to lend support to the oral testimony of Abmad Raza Kasuri to the effect that Saeed Ahmad Khan had told him that he was a marked man and that his future lay with the Pakistan People’s Party. It is interesting to note that by the 29th of July, 1975, several meetings had taken place between Ahmad Raza Kasuri and the Chief Security Officer to the then Prime Minister, and it was as a result of these meetings that Ahmad Raza Kasuri requested for an audience with the Prime Minister.
625. Within a few days of this
note Abdul Hamid Bajwa sent another note (Exh. P. W. 3/2-F) direct to the Secretary to the Prime Minister on the
4th of August, 1975. This note opens with the sentence “Ahmad called on Ahmad
Raza Kasuri on Friday the first, at Government Hostel, Islamabad”. Saeed Ahmad
Khan explained at the trial that Ahmad was a pseudonym for Abdul Hamid Bajwa,
and was used by the latter for describing meetings which he had with political
personalities like Ahmad Raza Kasuri and others. In other words, Abdul Hamid
Bajwa is informing the Prime Minister that he had called on Ahmad Raza Kasuri
at the Government Hostel,
“While discussing about his having audience with the Prime Minister, Ahmad suggested to him that, in his interest, he should first prepare ground, for such a move. This ground, as suggested by Ahmad would be by issuing one or two statements, indicating Air Marshal (Rtd.) Asghar Khan’s attitude towards Ahmadis. Ahmad Raza Kasuri promised to think over it and have more discussions on this issue.”
626. It will be seen that when Abdul Hamid Bajwa met Kasuri at the Government Hostel, Islamabad on the Ist of August, 1975, Kasuri was still thinking of forming a new Party, and when it was suggested to him that he should prepare the ground for an interview with the then Prime Minister by issuing one or two statements against the Tehrir-e-Istaqlal’s Chief in respect of his attitude towards the Ahmadis, Ahmad Raza Kasuri promised to think over it and have more discussions on this issue. This does not appear to be the natural reaction of a man who was himself keen to have audience with the Prime Minister. It is also significant that it is not Ahmad Raza Kasuri who had called on Abdul Hamid Bajwa, but it is the other way round, namely, that an officer of the Prime Minister’s Secretariat had taken the trouble of calling on Ahmad Raza Kasuri at the latter’s place of residence in Islamabad.
627. On the 11th of August, 1975, Saeed Ahmad Khan sent to the Secretary to the Prime Minister a cutting (Exh. P. W. 3/2-G) from the daily newspaper Jang of Rawalpindi of that date, containing a news item that Kasuri was thinking of capturing the Tehrik-e-Istaqlal Party. Saeed Ahmad Khan wrote below the cutting “Submitted for favour of information. His next move is being watched.”
The cutting as well as Saeed Ahmad Khan’s remarks were seen by the appellant on the 12th of August, 1975, and the paper returned to Saeed Ahmad Khan. This note again does not indicate any desire on the part of Ahmad Raza Kasuri to patch up with the Chairman of the People’s Party and the then Prime Minister, namely, the appellant Zulfiqar Ali Bhutto.
628. The next document brought on the record by the prosecution is a note (Exh. P. W. 3/2-H) dated the 15th of September, 1975, addressed by Saeed Ahmad Khan to the Secretary to the Prime Minister, stating that :
“A massage was received, through a link, from Mr. Ahmad Raze Kasuri, M. N. A., that he desired to see me and discuss his future plans. I asked Mr. Abdul Hamid Bajwa to contact him and to remind him that he should prepare the ground to indicate his bona fides for rejoining the P. P. P.”
The note then goes on to say that;----
“Mr. Ahmad Raza Kasuri told Bajwa that his very silence over the past few months ought to indicate his bona fides, particularly when he seems to enjoy reputation of the emotional political being . . . . . He further said that he would be of immense use to the Chairman in the ensuing general elections, in view of the differences amongst the top leaders of the P. P. P. in the province of the Punjab . . . .. . .
He also said that he could ask for an interview with the Prime Minister in his capacity as M. N. A. directly. He has been told to do so.”
629. The next document is again a note (Exh. P. W. 3/2-I) by Saeed Ahmad Khan dated the 29th of September 1975, addressed to the Secretary to the Prime Minister. Some of the observations and statements contained in this note are also interesting, namely :-
“Mr. Ahmad Raza Kasuri, M. N. A. now claims to have sobered down and become stable. His rough edges have been chiselled out, his political horizon has become clearer and is a progressive being . . . .
Mr. Ahmad Raza has categorically
stated that he wishes to return to the fold and would carry out Prime Minister’s
directives and can be used in any way desired by the Prime Minister. He is
prepared to take a head-on
confrontation with Khar in the
When I met him two days ago at Lahore, he was of the view that Altar Pervez, a Student Leader, one of the candidates for the bye-election at Lahore, can be advantageously utilised on anti-Khar campaign and may be unobtrusively utilized in the election campaign as an independent candidate . . . . . . .
He is still anxiously waiting for audience with the Prime Minister.”
630. The statements contained in
this note by Saeed Ahmad Khan are indicative of the success which he was having
in persuading Ahmad Raga Kasuri to return to the fold of the Pakistan People’s
Party, and apparently his rough edges had been chiselled out under the guidance
of Saeed Ahmad Khan and Abdul Hamid Bajwa, and he had become mentally prepared
to return to the Pakistan` People’s Party, but he was keen that he should first
meet the appellant. Ht also indicated that he could be used by Zulfiqar Ali
Bhutto for a head-on
confrontation with Ghulam Mustafa Khar, who wag a leading member of the
Pakistan People’s Party and a Governor and Chief Minister of the
631. The next document on the record is a note (Exh. P. W. 3/17-D) dated the 13th of November 1975, sent by Saeed Ahmad Khan to the Secretary to the Prime Minister. While referring to some other matters, with which we are not concerned the last paragraph of this note makes reference to a report submitted by Abdul Hamid Bajwa, apparently on Ahmad Raza Kasuri, and ends with the following remarks “It is requested that the Prime Minister may consider granting an audience to Ahmad Raza Kasuri at his convenience. He has behaved so far despite pressure from opposition groups. He has been repeating his request for an audience with the Prime Minister in view of his two written requests for the same, already submitted.”
632. This note was seen by the Prime Minister on the 16th of November with the remarks “Please file”. It appears that Ahmad Raza Kasuri was yet to be kept waiting for some time more before being granted an interview by the appellant.
633. We then have a note by Abdul Hamid Bajwa (Exh. P. W’. 3/2-J) dated the 21st of November 1975, submitted by Abdul Hamid Bajwa to the Secretary to the Prime Minister through his Chief Security Officer. This was seen by Zulfiqar Ali Bhutto on the 26th of November. This report opens with the sentence that “Ahmad (i.e. Abdul Hamid Bajwa) met Ahmad Raza Kasuri today (21-11-75) after the National Assembly session”. After narrating the conversation which took place between them regarding an incident in the National Assembly when some members of the Opposition were thrown out of the house, the note recites that “Abroad told, Raza Kasuri that he was an experienced parliamentarian now and others had respect for him and, therefore, he should keep it up rather than making the people feel that he was not very much responsible. Ahmad Raza Kasuri said he did feel that he is very much sobered now and wanted to co-operate with the Government, but he suspected that some third agency, which did not like these moves, wanted to create gulf . . . . . . Ahmad told Kasuri that he should be much more cautious in his utterance and dealings.
Ahmad Raza Kasuri said that he may be given some guidance by the Prime Minister and he will act accordingly, but so far he has not been granted audience.”
634. Now, it is true that even this note ends up with the remarks that Ahmad Raza Kasuri had not yet been granted audience by the Prime Minister, but it is again significant that it was Abdul Hamid Bajwa who bad taken the trouble of meeting Ahmad Raza Kasuri after the National Assembly session, and it was Abdul Humid Bajwa who was advising Abmad Raza Kasuri, as to how to behave so that no gulf was created between him and the Prime Minister. This note also contains a remark that Ahmad Raza Kasuri said that Mr. Abdul Hafiz Pirzada was very kind to` have talked to him and assured him that some body had misrepresented to Raza Kasuri. This remark lends support to Ahmad Raza K asuri’s evidence at the trial that Mr. ‘Abdul Hafiz Pirzada, who was then a Federal Minister, had also interceded so as to bring him back to the fold of the Pakistan People’s Party.
635. Nearly two weeks later, on the 5th of December 1975, Saeed Ahmad Khan sent a note (Exh. P. W. 3/18-D) to the Prime Minister stating that ;---
“As per instructions, I met Sardar Izzat Hayat, formerly of Tehrik-e-Istaqlal, on 4-12-1975. He was most anxious that Mr. Ahmad Raza Kasuri, M. N. A. may be given an audience by the Prime Minister, as soon as possible. Ahmad Raza has already asked for an interview in writing, and both of them are at a loss to understand as to why this request is not being acceded to. They are of the view that some interested P. P. P. leaders have been trying to stall this meeting for personal reasons, lest Mr. Ahmad Raza Kasuri, on his rejoining the P. P. P., may find an important place, being a dedicated worker, full of enthusiasm and a good public speaker . . . . . .”
636. In the second paragraph of this note Saeed Ahmad Khan stated that Sardar Izzat Hayat said that Ahmad Raza Kasuri had sobered down etc. In the third paragraph Saeed Ahmad Khan says that Ahmad Raza Kasuri and Sardar Izzat Hayat had fallen out with Air Marshal (Rtd.) Asghar Khan. After mentioning several other matters the note states that Ahmad Raza Kasuri “again begs that he may not be kept on tenter hooks any more but be brought to the fold of P. P. P. without further delay, and assures of complete loyalty to the Chairman. The irritants created by vested interests at the move of Ahmad Raza joining the Party be kindly set aside, since the negotiations with him have now been carried on for the past six months, with no results so far.”
637. On this note the appellant Zulfiqar Ali Bhutto recorded the following remarks on the 6th of December : .
“`I will see Ahmad Raza Kasuri in Pindi. Please return the file after you have noted.” .
638. This minute was marked to the Military Secretary, apparently for the purpose of fixing the time and date of the intended interview. It appears that the interview was finally granted by the appellant in March or April, 1976, whereafter Kasuri rejoined the Pakistan People’s Party on the 6th of April, 1976, and was subsequently sent to Mexico as member of a Parliamentary delegation.
639. It will be noticed that although the note conveys an impression that both Abroad Raza Kasuri and his friend Sardar Izzat Hayat were anxious that Kasuri should be granted an audience by Zulfiqar Ali Bhutto, yet it was the Prime Minister’s Chief Security Officer, who had called on Sardar Izzat Hayat under instructions from the Prime Minister ; and the last paragraph makes a significant statement that “the negotiations with him have now been carried on for the past six months, with no result so far”. These are inherent indications that the initiative in the first instance had come from the side of Zulfiqar Ali Bhutto, but his officers were working upon Ahmad Raza Kasuri in a subtle manner so as to make it appear that Kasuri was desperately begging for an interview with the Prime Minister.
640. It was contended by Mr. Yahya Bakhtiar that both Ahmad Raza Kasuri and Saeed Ahmad Khan had given false evidence as to the desire of the appellant to win over Kasuri and bring him back to the fold of the Pakistan People’s Party, as such an assertion was belied by some of the documents which had already been referred to as well as by the remark made by the appellant on the 29th of July 1975, on the note Exh. P. W, 3/2-E submitted on that date to the Prime Minister by Saeed Ahmad Khan. Before adverting to the controversy between the parties as to the genuineness of these remarks having, in fact, been made by the appellant on the 29th of July 1975, it would be well to reproduce them here;---
“He must be kept on the rails, he must repent and he must crawl before he meets me. He has been a dirty dog. He has called me a mad man. He has gone to the extent of accusing me of killing his father. He is a lick. He is ungrateful. Let him stew in his juice for some time.”
641. Saeed Ahmad Khan had proved the office copy of his note dated the 29th of July, 1975, as Exh. P. W. 3/2-E, whereas at the instance of the defence a photostat copy of this note bearing the remarks quoted above in the hand of the appellant was brought on the record as Exh. P. W. 3/16-D. The photostat copy shows two endorsements made below Saeed Ahmad Khan’s note by Zulfiqar Ali Bhutto on the same date, i.e. 19th of July. The first endorsement contains the remarks reproduced above, and begins at the extreme left of the paper, whereas the second endorsement says “please file”, and is written considerably below the appellant’s signature under the above remarks. The second endorsement is also dated 29/7 and it is marked to P. S. meaning the Private Secretary to the Prime Minister. Saeed Ahmad Khan stated at the trial that his original note did not come back to him with above-quoted remarks of the Prime Minister, nor did he otherwise become aware of these remarks. It was stated at the Bar by the learned Special Public Prosecutor that although the original had been marked by the then Prime Minister to his Private Secretary yet it could not be traced in the Prime Minister’s Secretariat by the Federal Investigation Agency.
642. The question is whether the remarks quoted above were, in fact, make on Saeed Ahmad Khan’s note by the appellant on the 29th of July, 1975, or whether they have been fabricated later, as alleged by the prosecution, so as to give an impression that upto this time appellant was in no mood to grant an interview to Ahmad Raza Kasuri, and was, in fact, condemning his conduct in very strong language.
643. It will be seen that as the original note of Saeed Ahmad Khan was marked by the then Prime Minister to his Private Secretary, whether with one or two endorsements, it should normally have been available in the Prime Minister’s Secretariat. But the paper was not found there by the Investigation Agency. It was submitted by Mr. Yahya Bakhtiar, and also by the appellant when he appeared in person, that as the note of Saeed Ahmad Khan related to a party matter, the Private Secretary to the Prime Minister passed it on to the Secretariat of the Pakistan People’s Party, and it was from there that photostat copy was obtained by the defence for presentation in the Court. There was, however, no explanation by the defence as to the absence of the original from which the photostat copy produced at the trial was made. It is interesting to note that while applications were made on behalf of the appellant on the 15th and 30th October, 1977, in the High Court for summoning certain documents for the purpose of cross-examining Ahmad Raza Kasuri, and the Court did ask the Special Public Prosecutor to supply the same, yet on the 17th of October, statement was made in the High Court that some of the documents mentioned in the earlier application had been found, and they were produced in original in the Court -for the purpose of cross-examining Ahmad Raza Kasuri. Again on the 6th of November, 1977, seven other documents were produced in original by the defence from their own custody, but the document bearing the disputed remarks was the only one which was not produced in original. The other documents produced in original did not necessarily relate to Party matters, and their production by the defence from their own custody reflects against the correctness of the statement that documents relating ‘to party matters were being kept in original in the Party Secretariat, but it is not necessary to enter into that controversy. The simple fact is that Saeed Ahmad Khan’s note in original bearing the disputed remarks has not been brought on the record by either side.
644. Dealing with the question of admissibility of the photostat copy, the High Court has observed in paragraph 402 of its judgment that this document had been admitted in evidence subject to the objection of the Public Prosecutor, since it was stated at the time that the original was not forthcoming. The High Court had then proceeded to uphold the objection on the ground that no attempt was made by the accused concerned to prove the loss of the original nor did he summon the original.
645. Mr. Yahya Bakhtiar submitted that it was incorrect to say that the original was not summoned by the defence, as an application had been made earlier in this behalf. This is correct, but the defence also conceded that this and other documents were sent to the P.P.P. Secretariat. If so, the original was in the possession and power of the defence, and that is why it produced a photostat thereof. In these circumstances the view taken by the High Court appears to me to be correct, in terms of section 65 of the Evidence Act. As a result, strictly speaking, the Court cannot look at the remarks relied upon by Mr. Yahya Bakhtiar in support of his argument.
646. Even otherwise, there seems to be substance in the submission made by Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, that the remarks appear to have been written on this note at some later date. It will be seen that in the last Paragraph of his note, Saeed Ahmad Khan had stated that “Mr. Ahmad Raza Kasuri has requested for an audience with the Prime Minister at his convenience” If, indeed, the Prime Minister was at that time was annoyed with Ahmad Raza Kasuri, as is indicated by the contents of the remarks in question, and was not willing to grant an interview, it is clear that these remarks had to be communicated to Saeed Ahmad Khan, whether by the return of the original note with these remarks, or through some other means, but apparently nothing of this kind was done. Not only was Saeed Ahmad Khan not informed of this reaction of the Prime Minister to the request of Ahmad Raza Kasuri for a personal interview, but even the other gentleman who had been so active in this connection, namely, Abdul Hamid Bajwa, was also not informed on these lines. Otherwise Abdul Hamid Bajwa could not have sent direct to the Prime Minister his note Exh. P.W. 3/2-F only six days later on the 4th of August, 1975, stating that he had called on Ahmad Raza Kasuri on Friday the 1st of August, 1975. If, indeed, the Prime Minister had expressed himself in such strong language against Ahmad Raza Kusuri, as is used in the remarks in question, it is difficult to understand how Abdul Hamid Bajwa could have called on Ahmad Raza Kasuri only two days later on the 1st of August, 1975, and discussed with him about having his audience with the Prime Minister. In the circumstances, the only thing for Abdul Hamid Bajwa would have been to avoid the subject, even if for some reason he had felt himself compelled to call on Ahmad Raza Kasuri only two days later after these strong observations were made by his employer. I find that, in fact, at this meeting on the 1st of August, 1975, Adbul Hamid Bajwa suggested to Ahmad Raza Kasuri to prepare the ground for such a move by issuing one or two statements unfavourable to Air Marshal (Rtd.) Asghar Khan, and Kasuri only promised to think over the suggestion and have more discussions over this issue. Frankly, this kind of a meeting between Abdul Hamid Bajwa and Ahmad Raza Kasuri only two days after the strong endorsement of the Prime Minister on the 29th of July, 1975, does not make any sense. I consider that the contents of the note submitted by Abdul Hamid Bajwa to the Prime Minister on the 4th of August, 1975, negative the existence of the remarks relied upon by the defence.
CONCLUSIONS AS TO EFFORTS AT WINING OVER OF KASURI
647. There is also another aspect of the matter, namely, that even if the appellant was of this frame of mind on the 29th of July, 1975, as would appear from the remarks in question, he must have changed his mind and tactics later, as his officers continued to pursue Ahmad Raza Kasuri. Saeed Ahmad Khan had a meeting, under the Prime Minister’s instructions, with Ahmad Raza Kasuri’s friend Sardar Izzat Hayat, in this very connection. The cumulative effect of all the documents taken together is that the initiative to win back Kasuri to the Pakistan People’s Party was undoubtedly taken by the appellant Zulfiqar Ali Bhutto by entrusting this assignment to his Chief Security Officer and the latter’s Assistant Abdul Hamid Bajwa, and for this purpose they had a large number of meetings with him both at Islamabad and at Lahore. This could not have been the case if only Ahmad Raza Kasuri had desired a reconciliation, for in that case Kasuri would have been seeking interviews with these two officers, and not vice versa. It has also been noted earlier that in one of the documents it was mentioned that the then Federal Minister Abdul Hafiz Pirzada also talked to Ahmad Raza Kasuri about the removal of misunderstanding. It also appears from the documents noticed above, that as experienced and mature police officers, working on the mind of a much younger man, who had suffered a tragedy in the shape of the assassination of his father, and still felt himself insecure from the ruling Prime Minister, they succeeded in presuading him that his future and the safety of his family lay in returning to the fold of Pakistan People’s Party, and patching up with the appellant, and that for this purpose he should seek an interview with the Prime’ Minister. It is also possible that Ahmad Raza Kasuri may himself be wanting to meet the appellant before rejoining the Pakistan People’s Party. At the same time, as narrated by Saeed Ahmad Khan at the trial, the appellant decided that he would meet Ahmad Riza Kasuri according to his own assessment as to when it would be proper to do so. Thus it was a subtle game being played by the appellant and his officers with Ahmad Raza Kasuri being at the receiving end.
648. I have already commented, in an earlier paragraph, that. in the last document placed on the record in this connection, namely (Exh. P.W. 3/18-D) dated the 5th of December, 1975, Saeed Ahmad Khan had stated “the irritants created by vested interests at the move of Ahmad Raza joining the Party be kindly set aside, since the negotiations with him have now been carried on for the past six months, with no results so far”. I have italicised the word negotiations’, appearing in this sentence, as it would be foolish for Saeed Ahmad Khan to use this word if; indeed, there had only been a unilateral request from Ahmad Raza Kasuri for returning to the Pakistan People’s Party and begging for an interview in the face of a strong unfavourable reaction on the part of the appellant. As a result, I am of the view that this part of the Subsequent conduct of the appellant, as proved by oral and documentary evidence, is highly relevant in reaching a conclusion as to his guilt in this matter. It manifests a desire to silence the loud and repeated protests and demandi which were being made by Ahmad Raza Kasuri for an impartial probe into the assassination of his father. Incidentally, the pains taken by Saeed Ahmad Khan and the late Abdul Hamid Bajwa in holding such a large number of meetings, with Ahmad Raza Kasuri and the perseverance shown by them in carrying on “negotiations” with him for several months, and the promptness with which their reports were seen and attended to by the appellant, all go to show that Ahmad Raza Kasuri was certainly not a non-entity insofar as the appellant and his political Party were concerned.
DEFENCE CRITICISM OF AHMAD RAZA KASURI AND HIS EVIDENCE
649. Mr. Yahya Bakhtiat strongly condemned Ahmad Raza Kasuri as being an ambitious opportunist, and a liar, who had deliberately involved appellant Zulfikar Ali Bhutto in the murder of his father for the purpose of blackmailing the former Prime Minister, as would appear from the demand made by him that the Prime Minister should resign so as to facilitate proper investigation of this murder. The learned counsel further submitted that Kasuri was always changing his political loyalties, and that he had often been thrown out from political and other organisation on account of his obnoxious behaviour. Mr. Yahya Hakhtiar listed several items on which, according to him, Kasuri had given deliberately false replies, with the result that his entire evidence became unreliable. Finally, the learned counsel posed the question as to how could a man rejoin a political party of which the Chairman was guilty of the assassination of his father, and how could he subsequently write reports and letters eulogizing the appellant, and then applying for a P.P.P. ticket for the March 1977 elections.
650. I first take up the points mentioned by Mr. Yahya Bakhtiar showing that Ahmad Raza Kasuri was a liar. The learned counsel submitted that;---
(i) Kasuri had deliberately
denied having made a statement under section 161, Cr. P. C. before D.S.P,
This point has already been dealt
with at same length, and it is not necessary to go over the same ground, except
to say that the statement relied upon by Mr. Yahya Bakhtiar was not proved at
the trial, and that the denial of Ahmad Raza Kasuri was in conformity with the
speech which he tad made that very afternoon, soon after the incident, in the
National Assembly, in which he had clearly stated that he was attributing no
motives at that stage. it is, therefore, difficult to hold that Ahmad Raza Kasuri
was indeed telling a lie when he denied having made the alleged statement
before D.S P:
(ii) Kasuri gave incorrect information regarding the cause of his expulsion from the Pak-’Turkish Friendship Association, as in fact, there was a fight, as a result of which he was expelled.
As no satisfactory evidence was brought on the record to establish the reasons of Kasuri’s expulsion from the aforesaid Association, it is not possible to agree with Mr. Yahya Bakhtiar that Kasuri’s denial of the reasons suggested to him was in the nature of a lie. In any case this kind of incorrect statement as to the reasons of his expulsion from a certain organisation will hardly operate to negative his evidence, which is borne out by the records of the National Assembly containing his speeches against the appellant.
(iii) He falsely asserted that the appellant had taken the initiative to win over and bring him back to the Pakistan People’s Party ; and he falsely denied having asked for interview with the appellant after rejoining the party in April, 1976.
The first part of the submission has already been dealt with by me at considerable length in the light of the documents brought on-the record by both sides, and for the reasons given earlier, I have already concluded that the initiative for bringing Ahmad Raza Kasuri back to the Pakistan People’s Party came from the side of the appellant. There is, therefore, no question of Abroad Raza Kasuri’s making false statement in this behalf.
As to the second pan of the argument, it is correct that he did ask for interview with the then Prime Minister by writing a letter (Exh. P.W. 1/19-D) on the 30th of January, 1977, and to this extent it can be said that he did not make a correct statement when he replied in cross-examination that he did not ask for any interview. When confronted with this letter, he stated that he wanted to meet the then Prune Minister for seeking a P.P.P. ticket, but he also said that the tickets had already been distributed by the 19th of January, 1977. In the presence of this letter containing a written request for an interview, I would certainly agree with Mr. Yahya Bakbtiar that the reply given to this question by Ahmad Raza Kasuri in cross-examination is not correct. However, this incorrect reply of any event taking place nearly more than two years after the murder cannot negative the basic assertion made by Ahmad Raza Kasuri that be was a vocal critic of the former Prime Minister before the present incident. It seems to me, therefore, that this is an inconsequential lie, having no bearing on the fundamentals of the case.
651. Turning now to the other criticism made by Mr. Yahya Bakhtiar, it seems to me that for the purposes of this case it is not necessary for the Court to record a finding as to whether Ahmad Raza Kasuri was, indeed, an opportunist, and whether he was being thrown out from various organisations on account of his being an obnoxious person. It is sufficient to say that he explained at the trial that having failed in ail his efforts to get justice, as long as appellant Zulfiqar Ali Bhutto was in power, he thought it prudent to patch up with him and to start praising him. In view of the fact that his several privilege motions moved in the National Assembly had not borne any fruit having been ruled out of order by the Speaker of the Assembly, the murder case relating to the assassination of his father having been filed as “untraced” by the Punjab Police ; and the general feeling of insecurity entertained by him with regard to his own safety and that of his family, it could be a plausible stance to adopt in the circumstances in which Ahmad Raza Kasuri found himself after the murder of his father. The evidence of Saeed Ahmad Khan lends full support to this part of Kasuri’s statement, and even the contents of the documents brought on the record sufficiently bring out this aspect of the matter. I consider, therefore, that the criticism made by Mr. Yahya Bakhtiar does not negative the cumulative effect of the documents noticed in the preceding paragraphs.
ALLEGED OMISSIONS AND CONTRADICTIONS IN THE EVIDENCE IN THE SAEEED AHMED KHAN
652. Let me now examine Mr. Yahya Bakhtiar’s contention that the oral testimony of Saeed Ahmad’ Khan at the trial suffers from a large number of omissions, contradictions and improvements, as compared to his previous statements under sections 161 and 164, Cr. P. C., so as to seriously detract from its credibility. The various items commented upon by Mr. Yahya Bakhtiar in this behalf were the following;---
(1) Saeed Ahmad Khan (Cad pot stated in his previous statements that, while giving him telephonic instructions to proceed to Lahore in connection with the proceedings going on there before the Shafi-ur-Rehman Tribunal, the Prime Minister had directed him to meet the Advocate-General, Chief Secretary, I.-G. Police and the investigating Officers and look into the case.
The criticism does not appear to
be correct as in his 161, Cr. P. C. statement (Exh. 41/3-H) Saeed Ahmad Khan had clearly stated that in mid-December
the Prime Minister bad inter alia told him to proceed to Lahore and discuss the
case with the Provincial officers, and that accordingly be went to Lahore and
held meetings with the Chief Secretary, Home Secretary, I.-G. Police, D.I.-G. Police, Advocate-General and D.S.P.,
Intelligence Malik Ahad. Similarly in his 164, Cr. P. C. statement (Exh. P. W.
10/16-D), Saeed Ahmad
Khan has virtually repeated the same statement by saying “He directed me to
proceed to
(2) 3c (3) At the trial Saeed Ahmad Khan bad stated that the Prime Minister had snubbed him and said in so many words “keep out the FSF” and he further directed him to find out from JADO, but in the previous statements, these exact words had not been used.
Technically, the objection is correct, as these precise words had not been used by the witness in his previous statements but in substance these matters are clearly mentioned to the effect that Saeed Ahmad Khan was directed by the Prime Minister to make enquiries from Bara and Defence Secretary in order to find out as to wherefrom ammunition of 7.62 mm. could be had, and that when the witness spoke to Zuifikar Ali Bhutto about this ammunition being in the use of F. S. F., he was put off by saying that the weapons and ammunition of that kind was also available with the Army Units. In his 164, Cr. P. C. statement mort details are given that when he informed the Prime Minister that the empties found at the spot were of the bore which was in the use of the FSF., the Prime Minister told him that this ammunition was also being used by several Army Units and that it was being smuggled also and the witness was instructed to make enquiries from Bara as well as from the Defence Secretary, and in accordance with these instructions, he wrote to the Defence Secretary and sent D.S.P. Muhammad ‘Naris to JADO: The previous statements clearly indicate that the intention of the instructions given to Saeed Ahmad Khan by the Prime Minister was to keep out the F.S.F, and, therefore, the omission to use these precise words in the previous statements is not material.
(4), (5) & (6). The three omissions mentioned at items (4), (5) & (6) in the chart furnished by Mr. Yahya Bakhtiar can be taken up together, us they relate to the reply which Saeed Ahmad Khan had received to his letter to the Defence Secretary regarding the use of 7.62 mm. weapons and ammunitions. At the trial Saeed Ahmad Khan stated that hr got perplexed on receiving this reply as it mentioned the Chinese weapons which were in use of the FSF, that he showed this letter to the Prime Minister who directed him not to produce it before the Inquiry Tribunal. The objection, is that in his previous statements there is no mention as to whether the Defence Secretary’s reply was shown to the Prime Minister Or not $End if shown what was his reaction.
It is correct that in the previous statements it is only mentioned that the reply is on the record, but there is no indication that on seeing this reply the witness felt perplexed or that he showed the same to the Prime Minister who directed him not to produce it before the Tribunal. The omission is, however, not material in the sense that the previous statements do mention that he had written to the Defence Secretary under the instructions of the Prime Minister, and therefore, it would appear to be only natural if he apprised the Prime Minister of the reply sent by the Defence Secretary. It seems that the statements made by Sated Ahmad Khan at the trial in regard to this letter were made when he was shown the reply of the Defence Secretary which was not before him when he made his two previous statements. However, the essential fact in the story is that ‘on the instructions of the Prime Minister he had written to the Defence Secretary to make necessary enquiries about the use of ,7.62 mm. ammunition and weapons and that the reply in question was not produced before the Inquiry Tribunal. The omissions listed by Mr. Yahya Bakhtiar in this behalf are only of an inconsequential nature and do not affect the fundamental statement that it was under the instructions of the Prime Minister that Sated Ahmad Khan had taken this step.
(7) to (18) The omissions listed at items (7) to (18) in the Chart prepared by Mr. Yahya Bakhtiar relate to the efforts of Saeed Ahmad Khan to bring back Ahmad Raza Kasuri to the fold of the Pakistan People’s t; Party, contain references to the notes/reports sent by him to the Prime Minister on this subject. The point made is that in the two previous statements, Sated Ahmad Khan did not refer at all to the efforts made by him or by the late Abdul Hamid Bajwa to bring Ahmad Raza Kasuri back to the Pakistan People’s Party, nor did be make a mention of the large number of documents which were proved through him at the trial in support of these efforts.
When questioned in cross-examination about his omission to mention these efforts and documents, Saeed Ahmad Khan stated that “I did not make a mention of this matter in my 164, Cr. P.C. statement, because as far as I remember, I had gone up to stage till I was associated with the supervision of the investigation of the murder case when I was taken off, and this was a subsequent development.” Explanation given by the witness seems to be plausible, as in both the previous statements he stopped at the stage ending with the withholding of the publication of Inquiry Report submitted by Mr. Justice Shafi-ur-Rehman to the Punjab Government. It is possible that at that time the Investigating Officer, who interrogated Sated Ahmad Khan, did not advert to the subsequent efforts to win over Ahmad Raza Kasuri, but the omission of these efforts from the two previous statements has no practical effect, as the evidence in regard to these efforts is proved by the large number of documents brought on the record by both the parties, and the matter does not rest on Sated Ahmad Khan’s oral testimony. Details of these documents, along with their contents, have already been discussed in the preceding paragraphs, and at this stage it has only to be stated that apart from one endorsement containing remarks said to have been made by the appellant on 29th of July, 1975, the genuineness of all other documents is admitted by both sides. In the presence of this documentary evidence, and the plausible explanation given by Sated Ahmad Khan about his omission to mention these efforts, nothing turns on the so-called omissions listed at items 7 to 18 of the defence chart.
WHETHER SAEED AHMAD KHAN AS AN ACCOMPLICE ?
653. One final contention put forward by Mr. Yahya Bakhtiar in this behalf may now be noticed namely, that Saeed Ahmad Khan was also an accomplice or at least no better than an accomplice, and therefore, his evidence could not be used to corroborate the evidence of another accomplice, 1,e. approver Masood Mabmood. The learned counsel submitted that if the prosecution allegations are accepted to the effect that after the murder, Sated Ahmad Khan and his Assistant the late Abdul Hamid Bajwa made efforts to misdirect the investigation so as to shield the real culprits, then they were both accessories after the fact, and therefore, accomplices in the offences of conspiracy and concealment of evidence, which was also an essential part of the alleged conspiracy. He contended that merely by dropping the charge under section 201, P.P.C., the position of Saced Ahmad Khan as an accomplice could not be altered or improved. He submitted that the High Court was, therefore, in error in describing Saeed Ahmad Khan as an independent witness, and using his evidence as corroboration of Masoad Mahmood. In support of these submissions, the learned counsel referred us to several paragraphs in the judgment of the High Court dealing with Sated Ahmad Khan’s efforts at misdirecting the investigation. Finally, he drew the attention of the Court to a large number of decided cases to bring out the true import of the term ‘accomplice’.
654. In reply Mr. Ejaz Hussain Batalvi, the learned Special Public Prosecutor submitted that Sated Ahmad Khan could not be treated as an accomplice in the present case as, inn the first place, he had categorically stated that be was nut aware of the nature of the mission which appellant Zulfiqar Ali Bhutto had assigned to Masood Mahmood, and about which he was asked by the appellant to remind the latter ; on the contrary, we thought at that time that the mission was to effect a reconciliation between the appellant and Ahmad Raza Kasuri, as Masood Mahmood also hailed from Kasur. Mr. Batalvi next submitted that the true test for determining whether a person was an accomplice or not was to ascertain whether he was directly or indirectly concerned with, or privy to, the offence which was under trial ; and that he must be so placed that he could be tried jointly alongwith the accused, for the same offence. He contended that it was clear that Sated Ahmad Khan could not be tried jointly with appellant Zulfiqar Ali Bhutto or the other co-accused, in this case for the offences of conspiracy and murder ; that there was no charge under section 201 of the Pakistan Penal Code regarding concealment or destruction of the evidence ; and that, in any case, there was no material on the record to show that Sated Ahmad Khan knew or reasonably believed Zulfiqar Ali Bhutto to be the real offender, and was knowingly taking steps to shield the offender. The learned Special Public Prosecutor accordingly submitted that Sated Ahmad Khan was rightly treated as an independent witness by the High Court, as he appears to have acted throughout under the instructions of the appellant, and apparently in the belief that the appellant, had been falsely named by Ahmad Raza Kasuri.
655. The question as to who is an accomplice in law has already been considered by me not only on general principles but also in relation to a similar argument advanced against the position of M. R. Welch (P.W. 4) as a witness for the prosecution. Even at the risk of repetition, it has to be stated once again that an accomplice means a guilty associate or partner in crime, or who in some way or the other, whether before, during or after the commission of the offence, is consciously connected with the offence in question or who makes admission of facts showing that he had a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. I have observed in this connection that as the terms “accessory before the fact”, and “accessory after the fact” have not been used and defined in our law, it would be preferable to avoid their use, as it is not conducive to a proper understanding of the legal position obtaining in this country. Section 201 of the Pakistan Penal Code contains a specific provision for dealing with persons generally described as accessories after the fact, and, accordingly, for determining the position of Saeed Ahmad Khan it would be well to focus attention on the terms of this section.
656. Now, even assuming that an offence punishable under section 201 of the Pakistan Penal Code, although distinct from the offence of conspiracy and murder, could be jointly tried alongwith the main offence, the fact remains that in the present case there is no charge under section 201 against the appellants in this case ; nor was Saeed Ahmed Khan arrayed in the list of the accused persons in the challan submitted by the State. It is true that in the private complaint filed by Ahmad Raza Kasuri, Saeed Ahmad Khan was mentioned as one of the accused persons, but as the present trial proceeded, Ahmad Raza Kasuri did not attribute any incriminating part to Saeed Ahmad Khan.
657. A snore important aspect of the matter, however, is that the facts, as brought on the record, do not show that Saeed Ahmad Khan. knew W or had reason to believe, at the time he was asked in July, 1974, by appellant Zulfiqar Ali Bhutto to convey a message about Ahmad Raza Kasuri to Masood Mahmood, that the message related to the mission of killing Ahmad Raza Kasuri already entrusted by the appellant to Masood Mahmood. On the contrary, Saeed Ahmad Khan has asserted at the trial that he believed at that time that the message was for the purpose of effecting a reconciliation between the appellant with Ahmad Raza Kasuri, for the reason that Masood Mahmood also hailed from Kasur, and he had already taken. some steps to bring about a rapprochement between the dismissed Federal Minister Mr. J. A. Rahim and the appellant. In the lengthy cross-examination to which Saeed Ahmad Khan was subjected, nothing was brought out to falsify this assertion of Saeed Ahmad Khan relating to the period when he conveyed the appellant’s message to Masood Mahmood in regard to Ahmad kaza Kasuri.
658. At to Saeed Ahmad Khan’s
subsequent intermeddling with the investigation of the case, there is again
nothing to show that at the time he was instructed by the appellant to proceed
to Lahore as the appellant’s name was being mentioned in connection with this
murder before the Shafi-ur-Rehman
Tribunal, Saeed Ahmad Khan knew or had reason to believe that appellant Zulfiqar
Ali Bhutto was, indeed, guilty of this conspiracy and murder. He did net have
any hand or conscious involvement in the hatching or execution of the
conspiracy leading to the present murder, nor has he been shown to be
misdirecting the investigation with the knowledge and intention of screening
the, offender from legal punishment. He was acting all along under the
directions of his employer to clear the latter’s name. According to the
CONCLUSIONS AS TO SAEED AHMAD KHAN
659. For all these reasons, I see no substance in Mr. Yahya Bakhtiar’s contention that Saeed Ahmad Khan should be treated as an accomplice, or no better than an accomplice, and therefore, not relied upon as providing corroboration of the evidence of approver Masood Mahmood. On a consideration of the general circumstances relating to the position held by him under appellant Zulfiqar Ali Bhutto, his declared loyalty to the former Prime Minister absence of any material to hold that he has deliberately consented to falsely implicate the appellant in a capital offence simply on account of pressure from the Martial Law authorities, and the availability of ample documentary evidence to support his oral testimony, I am of the view that the evidence of Saeed Ahmad Khan on the various matters deposed to by him has been rightly accepted by the High Court. In all these matters he acted as an agent or functionary of appellant Zulfiqar Ali Bhutto, with the appellant’s full knowledge and authority, and, in fact, under his personal direction.
CUMULATIVE EFFECT OF TESTIMONY OF MASOOD MAHMOOD AND CORROBORATIVE EVIDENCE SO FAR DISCUSSED
660. From the foregoing survey of
the corroborative evidence offered by the prosecution it becomes abundantly
clear that it lends valuable support to the main story narrated by Masood
Mahmood, regarding his position of trust, under appellant Zulfiqar Ali Bhutto,
as Director-i General
of the Federal Security Force ; and the task assigned to him by the appellant
to produce the dead body of Ahmad Raza Kasuri or his body bandaged all over.
The oral testimony of Ahmad Raza Kasuri, Saeed Ahmad Khan arid M.R. Welch,
supported by the voluminous documentary evidence., fully brings out the motive
existing on the part of the appellant to do away with Ahmad Raza Kasuri, and it
also shows how the appellant’s officers kept Ahmad Raza Kasuri under constant
surveillance, how they intermeddled with the investigation of the murder, and
how subsequently they made desperate efforts to win over Kasuri to bring him
back to the fold of the Pakistan People’s Party. All these activities have been
found by me to have been consciously directed by the appellant, as the officers
involved had no motive or reason of their own to act in the manner in which
they did in regard to Ali mad Raza Kasuri and the present murder. There is
overwhelming evidence to show that Saeed Ahmad Khan and his Assistant the late
Abdul Hamid Bajwa were acting under the personal directions of the appellant in
all these matters. The abortive incident at
APPRAISAL OF APPROVER GHULAM HUSSAIN’S EVIDENCE
661. Coming now to Ghulam Hussain approver, the main features of his testimony have already been given above in detail, and it is to be seen whether his evidence is such as can be accepted and safely acted upon provided the requisite corroboration is available on the record; or is it of such an unreliable and improbable nature, lacking intrinsic worth, that the question of seeking corroboration could hardly arise.
662. Taking up the service career
of Ghulam Hussain, it appears from the testimony of ASI Zawar Hussain (P. W.
13) of the FSF Headquarters, who deposed with .reference to the service record
of Ghulam Hussain which he had brought in Court, that Ghulam Hussain joined as
an Assistant Sub-Inspector
in the FSF on 3-12-1973 ; he was promoted as
Sub-Inspector on 15-1-1974 and as Inspector on 20-8-1974,
a remarkable record of promotion in the short period of less than a year. He
was attached with Battalions 4 and 5 (stationed at
663. It may be mentioned that as deposed by Ghulam Hussain, Commando Course/Camp was started in April 1974. Towards the end of May, 1974, he was sent for by Mian Muhammad Abbas to his office and asked as to what methods he would adopt for kidnapping or murdering a person. The witness gave his reply and he was asked to reduce the same into writing. The witness complied with these orders. However, the paper was retained by Mian Muhammad Abbas and the witness came back. Though there is nothing in writing to support this part of the testimony of Ghulam Hussain, but looked at in the light of the cash reward Exh. D. W. 4/5 dated 17-7-1974 which speaks highly of his efficiency, the possibility of his efficiency having been put to test in that way or form, cannot be ruled out, and the statement of the witness in that respect cannot be called as unnatural or improbable in any manner.
664. Ghulam Hussain stated that two or three weeks later he was again sent for by Mian Muhammad Abbas, and was asked whether he knew Ahmad Raza Kasuri. On a negative reply Mian Muhammad Abbas placed a jeep and a driver at his disposal, and asked him to use the jeep after changing the number plate. The witness continued the search and was able to locate and identify Ahmad Raza Kasuri, and his place of residence. In the beginning of August, 1974, he was again sent for by Mian Muhammad Abbas who asked him about the result of his efforts. The witness informed him that he had identified him and located his place of residence. Ghulam Hussain deposed that Mian Muhammad Abbas then informed him that “it would be my duty to remove Ahmad Raza Kasuri from the path of Mr. Zulfikar Ali Bhutto and that it was the order given by Mr. Masood Mahmood, who was the then Director-General, FSF. Since by removing Mr. Kasuri from Mr. Bhutto’s path he meant that I should kill Mr. Kasuri, I said to him that I had joined the FSF to provide for my family and that I was not prepared to commit this crime. Mian Muhammad Abbas then said to me that this murder had to be committed because it was the order of Mr. Masood Mahmood and because Mr. Ahmad Raza Kasuri was an enemy of Mr. Zulfikar Ali Bhutto, that I bad nothing to worry about and would be afforded full protection. He further told me that as it was a secret mission and since I had been taken into confidence, I shall have to perform the mission. I was further told by him that it was not only my service that would be in jeopardy, even my life would be in danger if I declined to implement his order. Because he promised to protect me, and because he threatened me with the loss of service and my life, and further because of the pressure that he brought to bear upon me, I agreed to implement the orders”.
665. Ghulam Hussain has further deposed that : “Mian Muhammad Abbas then gave me a chit and directed me to obtain a stengun, a pistol, two magazines and ammunition from Fazal Ali (PW 24) Incharge of the Headquarters Armoury.” Ghulam Hussain went to Fazal Ali and asked for the material on the basis of that chit without making any entry in the relevant register, as these were the orders of Mian Muhammad Abbas. Fazal Ali, however, refused to issue any ammunition in such an informal way. The witness then came back and handed over the chit and reported the matter to Mian Muhammad Abbas who sent for Fazal Ali. Mian Muhammad Abbas repeated the orders to him and informed him that not only he would lose his job but Mian Muhammad Abbas would also settle the score with him, if he did not carry out the orders and deliver the arms and ammunition to Ghulam Hussain without entering them in the register. Ghulam Hussain further deposed that “on this, Fazal Ali expressed his willingness to comply and he and I went to the Armoury. On reaching the Armoury, Fazal Ali handed over to me a stengun, two magazines, a pistol with two magazines and ammunition for both without making any entry in the register”. The witness handed over a receipt to Fazal Ali and took these things to his Commando Camp. Having procured the arms he then started following Ahmad Raza Kasuri.
666. Fazal Ali (P.W. 24) has supported Ghulam Hussain in material particulars with regard to the talk and incidents which concerned him and there is nothing to disbelieve the two witnesses in this respect, especially when Fazal Ali has no enmity with Mian Muhammad Abbas or as a matter of fact with any of the accused involved in this case.
667. On 20-8-1974 Mian Muhammad Abbas sent for Ghulam Hussain and complained that he had not performed the task assigned to him. He further said that as he was getting him promoted as Inspector, therefore, he had to pay attention to the task because Masood Mahmood was unhappy because of the non-performance of the task, and also because Zulflkar Ali Bhutto had now started abusing him because of this procrastination. Mian Muhammad Abbas told the witness that any further inaction on his part might endanger his own life. This’ portion of his statement stands borne out from the service record of Ghulam Hussain which shows that it was on 20-8-1974 that he was promoted as an Inspector. This second rapid promotion, it appears, was offered as an inducement for Ghulam Hussain to go ahead with the assignment, especially when any retreat from the same at that stage, as he was told, was with danger to his life and career.
DETAILS OF
668. On 24-8-1974
then Ghulam Hussain launched an attack on Ahmad Raza Kasuri at
669. Ahmad Raza Kasuri (P. W. 1) gave details of this occurrence which support in all material particulars the statement of Ghulam Hussain. Exh. P. W. 23/2 is the site plan of the place of occurrence. We had a demonstration through a Brigadier of the Pakistan Army to see the manner of fall of empties of 7.62 mm. calibre when fired from a sophisticated weapon from the rear of a jeep from where Ghulam Hussain had deposed, the firing had been done. The observation of this Court as recorded in para. 4 of our inspection note dated 17-12-1978 is as follows;---
“The Brigadier also fired from the back of a jeep one automatic burst of three rounds. However, since the jeep was hooded he had to fire the weapon towards the open sky (in order to save the hood of the jeep from being damaged) and it was noticed that all the empties fell outside the jeep in scattered position towards his right at a distance of about 20-23 feet.”
670. The manner of the fall of
the empties corroborated the site plan t of the
671. To continue with the
deposition of Ghulam Hussain, on coming to know of the failure of the attack,
Mian Muhammad Abbas expressed his dissatisfaction/anger and directed the
witness to remain on the job. After four days the witness reported to him that
according to his search Ahmad Raza Kasuri had left
672. Ghulam Hussain has next
deposed that after the failure of the Islamabad attack, Mian Muhammad Abbas had
sent two persons, namely Liaquat and Zaheer to Lahore to trace out Ahmad Raza
Kasuri, but as they reported no progress, Mian Muhammad Abbas called him a day
before Eid in October 1974 and asked him to proceed to Lahore. After making the
necessary entries in the daily diary of his battalion he went to
673. Ghulam Hussain has further
stated that after a few days be was informed that Mian Muhammad Abbas was very
much annoyed over the fact that no positive steps had been taken to accomplish
the mission although four or five days had already elapsed. The departure of
Ghulam Hussain from
DETAILS OF THE PRESENT OCCURRENCE SUPPORT GHULAM HUSSAIN
674. The statement of Ghulam
Hussain when read with the deposition of Ahmad Raza Kasuri clearly brings out
how, when and where Nawab Muhammad Ahmad Khan was assaulted and killed. Their
statements indicate that he was attacked on the night between the 10th and 11th
of November, 1974, while he was coming back along with his father and other
relations in his car LEJ No. 9495 at about midnight. These statements further
indicate that it was in that attack that his father, who was sitting on the
front seat on his left, received fire-arm
injuries, as a result whereof he died shortly thereafter at the United
Christian Hospital. The record of the Hospital contains the necessary entries
regarding the admission, treatment and death of the injured person. The
existence and collection of blood, broken pieces of glass, a piece of lead of a
bullet and 24 empties bearing mark 661.71 from “Shah Jamal-Shadman Colony Roundabout”,
corroborate the statements of Ghulam Hussain and Ahmad Raza Kasuri regarding
the place of occurrence. The nature of injuries on the person of the deceased,
and the recovery of a bullet and two thin metallic pieces from his body, leave
no room for doubt that the attack was by sophisticated automatic fire-arms. The car No. LEJ 9495
also had bullet marks, its glass was broken, and pieces of broken glass and
blood were found from inside the car which corroborate the version of the aforesaid
witnesses that it was the same car the occupants whereof were the victims of
the assault. This car was present in the
675. As regards the actual party which arranged and launched the attack the details have already been given earlier and need not be repeated at this place over again. According to those details Ghulam Hussain posted Arshad Iqbal on the intersection wherefrom he could see the place where Ahmad Raza Kasuri’s car was parked. Arshad Iqbal was directed to open fire in the air the moment Ahmad Raza Kasuri’s car was about to pass by him. Rana Iftikhar was given the orders to open fire at the first car which came before him after Arshad Iqbal had fired in the air. Ghulam Hussain himself stood in a nearby lane to ensure the operation. The statement of Ghulam Hussain clearly indicates the part played by him, Rana Iftikhar Ahmad, Arshad Iqbal and Sufi Ghulam Mustafa. These appellants also admitted their participation in the attack in their confessional statements under section 164, Cr. P. C. which a court is entitled to take into consideration under section 30 of the Evidence Act against them. The statement of Ghulam Hussain in the overall circumstances mentioned above, thus inspires confidence and can be accepted as true and be acted upon, provided it is properly corroborated.
DEFENCE CRITICISM OF GHULAM HUSSAIN’S EVIDENCE
676. However, Mr. Yahya Bakhtiar raised a number of points to contend that Ghulam Hussain was not a reliable witness, and that his testimony should not be accepted for the reasons advanced by him. These points may be discussed at this stage.
677. Taking up the manner of attack, he submitted that the site plan Exh. P. W. 34/5-D shows that the empty cartridges were recovered as indicated therein from four places. Two of these places were actually inside the north-east and south-east of the Roundabout which was surrounded by a shoulder-high hedge and two were outside the Roundabout, one on the northern side and the other on the southern-side. His argument was that if according to the statement of the approver, Ghulam Hussain (P. W. 3l), only two persons, namely, Arshad Iqbal and Rana Iftikhar fired at the car; then the empty cartridges could only be at two places where those men were stationed and not at four places.
678. The contention has no merit. It is well-known that targets generally speaking (in so far as relevant for our case) the targets may be of two types namely a “stationary target” and a “moving target”. A vehicle is obviously a moving target. In order to engage a moving target, it is necessary to aim ahead of the target, along its line of travel, so that the bullet arrives at a particular point simultaneously as the target, thereby obtaining a hit. The “lead” necessary to hit a moving target depends upon the speed, range and direction of the movement of the target. In the case of such a mobile victim the main target of attack is the vehicle in which the victim is travelling and the attacker to secure his end may, therefore sometimes, depending of course on the facts and circumstances of each case, run side by side or after the vehicle swiftly and for this purpose obviously his position cannot be stationary. Similarly he may have to traverse and swing himself or his gun when the mobile target is adopting a circular route while negotiating a Roundabout. It is, therefore, only natural that the two attackers inside the roundabout may have in their own way chased the target and fired from more than two places with the result that empties also dropped at more than two places (in the instant case at four places). In the very nature of the target being mobile and the form and manner of attack being feasible, the dropping of empties at four places does not belie the prosecution case.
679. The note recorded by this Court while seeing a practical demonstration of firing on 17-12-1978 shows that while fired from SMG/LMG the empties do, not drop perpendicularly at the place where the attacker is standing but away from him at some distance of 20-23 feet in a scattered form. They may fall ahead of the firing base, or towards its rear on the right, depending upon the position of, the weapon. Thus Mr. Yahya Bakhtiar’s argument, based on an assumption of a perpendicular fall of the empties, is misconceived.
680. The next objection raised by Mr. Yahya Bakhtiar was that there was a conflict between the statement of Ghulam Hussain, approver, in Court, on the one hand and his confessional statement on the other hand, inasmuch as, Ghulam Hussain in his deposition in Court stated that he himself did not open any fire, and that he simply attended to the supply of arms and ammunition and organised and supervised the attack, whereas in his earlier confessional statement under section 164, Cr. P. C. marked as Exh. P. W. 10/11-1 he had stated that he too fired at the car. To the same strain were the confessional statements Exh. P. W. 10/2-1 and Exh. P. W. 10/3-1 of Rana Iftikhar Ahmad and Arshad Iqbal respectively. Ghulam Hussain in cross-examination, however, stated that he did not remember to have so stated earlier and that he himself did not fire. Mr. Yahya Bakhtiar submitted that this aspect of the matter gave a serious blow to the veracity of the approver inasmuch as in the very nature of thing he was trying to minimise his part and was exculpating himself and according to Mr. Yahya Bakhtiar it shows that he was not present in Lahore on that day at all and was thus an unreliable witness.
681. A similar situation arose and a similar argument was advanced in Saravanabhavan and another v. State of Madras (AIR1966SC1273) but was not accepted. The actual passage in this respect occurs in para 9 at page 1277 of the report. It is instructive to reproduce the same. It reads as follows :--
“It is next contended that the approver had minimised his own part, that he was a hired assassin and should have played the leading role, but he says that he only struck one blow and that too ineffective. It is argued that he should not be believed. We accept that the approver slurred over his own share in the affair as, in fact, most of the approvers do. Approvers do not want to involve themselves too deeply in the offence even though they depose under the terms of a pardon. The question always is whether on their statements they would be held guilty or not. The approver admits his participation in the guilt sufficient for his conviction. It is obvious that his statement was not self-exculpatory. As his statement must be received with caution, the High Court and the Sessions Judge, being alive to the need of caution, looked for adequate corroboration before accepting his testimony. They have critically examined his evidence before holding that his version is credible. They committed no error either of law or of fact in accepting the testimony of the approver and in view of the principles to which we have already adverted earlier; we do not feel called upon to reject the testimony of the approver.”
682. The principle alluded to in the above passage was the principle of putting the testimony of an approver to “double test”-a principle well explained in the cases quoted by me above, and which principle I have respectfully followed in this case. Examining in the light of the law relevant on the subject, I do not find that the above contradiction in any manner would save Gbulam Hussain from his guilt. He admits his participation in the crime in so many respects at so many stages and in so many forms which are sufficient for his conviction. His statement when so examined is not self-exculpatory and therefore, a point of the kind at present under discussion cannot lead to the rejection of his testimony of Ghulam Hussain, or denial of his presence at the spot.
683. Mr. Yahya Bakhtiar, however,
reiterated his plea and by referring to certain other features of the case to
be presently attempted and argued at great length and with great emphasis that
Ghulam Hussain on the fateful day of occurrence was not in Lahore, and his deposition
that he took part in or supervised the attack on Ahmad Raza Kasuri was totally
false. For this purpose he made reference to what he called an authentic piece
of evidence, namely Exh. P. W. 3116 which is a T.A. Bill of Ghulam Hussain, and
according to which he was not in
684. The T.A. Bill of Ghulam Hussain relates to three periods, namely :-
(i) period from 16-10-1974 to 26-10-1974 . T.A. Bill shows his
presence in
(ii) period from 31-10-1974 to 22-11-1974 . T.A. Biil shows his
presence in
(iii) period from 22-11-1974 to 29-11-1974 . T.A. Bill shows his
presence in
685. Taking up the first period
of 16-10-1974 to 26-10-1974, Mr. Yahya Bakhtiar has not disputed the presence of
Ghulam Hussain in
Q.-Is it a fact that Mian Muhammad Abbas rang you up as you have already stated to check your arrival in Lahore for the reason that Mian Muhammad Abbas had not trust and faith in you ?
A.--It is quite clear from my statement that he did not trust me at all and that another party had already been deputed to watch me.
686. Taking up the period from 31-10-1974 to 22-11-1974 during which, as per
T.A. Bill, he is shown to be in Karachi, we have the statement of Ghulam
Hussain who deposed that this portion of the T.A. Bill was incorrect and that
during this period he was in fact in Lahore where from he returned on 22-11-1974, though in the Bill he showed his return on 22-11-1974. If this T.A. Bill is examined with reference to the
relevant cross entry is the daily diary of his Battalion, report No. 16 (Exh.
P. W. 31/3), it shows that he was leaving for some special duty, but neither
the nature of the duty nor his destination is mentioned therein. Similarly in
the arrival report, which is entered at serial No. 91, there again it is not
stated that he had returned from
687. According to Ghulam Hussain
this false T.A. Bill was prepared designedly at the instance of Mian Muhammad
Abbas to show his presence away from
688. Further support is available
from the statement of Manzoor Hussain (P. W. 21) driver of the staff car of
Masood Mahmood, who had arrived in Lahore from Multan and gave to Ghulam
Hussain a lift in that car to Rawalpindi on the morning of 12-11-1974. That Manzoor Hussain brought the car of Masood
Mahmood from
689. We may also make mention of a question put to this witness in cross-examination on behalf of Mian Muhammad Abbas at page 478. It reads as follows;---
Q.-Is it a fact that it was on the first and not the third of
November, 1974 that you travelled to
A.-I came to
It will be seen that it is
implicit in the question put on instructions from Mian Muhammad Abbas, that
Ghulam Hussain was in
690. Mr. Yahya Bakhtiar argued that Manzoor Hussain was not a reliable witness, as a special favour had been shown to him by reinstating him in service. He stated that the services of this witness were terminated on 23-2-1975, his appeal was accepted in November, 1977 and he appeared as P. W. 21 on 8-12-1977, therefore, he was an obliging witness. I do not find anything to doubt the veracity of this witness. He has no enmity with any of the accused nor, any friendship with Ahmad Raza Kasuri, and the mere fact that a service appeal of the witness was accepted is Do ground to think that he is a false witness, when even otherwise there is ample material on the record to support what he has stated.
691. Continuing the examination
of T.A. Bill Exh. P.W. 36/1, we fad that according to this document Ghulam
Hussain was in Peshawar from 22nd to 29th November, 1974 but again the precise
purpose of his visit to that place is not disclosed anywhere. However, we have
from documentary evidence Exh. P.W. 24/9 (a road certificate) and Exh. P.W.
24/10 (entry in the Stock Register of Fazal Ali (PW 24)--------) that on 25-11-1974 Ghulam Hussain returned the ammunition mentioned
therein to Fazal Ali at.
692. Mr. Yahya Bakhtiar tried to
argue that the deposition of Muhammad Amir driver that in his jeep No. LEJ 7084
he and the accused including Ghulam Hussain approver were connoitring in
693. It may here be pointed out that the T.A. Bill Exh. P.W. 36/1 shows that the journeys mentioned therein were undertaken under the orders of the Director, Operation and Administration, i.e. Mian Muhammad Abbas, as would appear from the note given, in the column headed as “purpose of journey”. This bill is then signed by Mian Muhammad Abbas, and properly processed under his instruction. It was prepared on 12-11-1974 and passed on that very date. This will show that Mian Muhammad Abbas was a party to the fabrication of this false document, and this is a circumstance which will independently show that he was a member of the conspiracy in this matter. He was questioned about the auhenticity of this bill. He did not say that it was a correct bill and all he answered was that the responsibility for its preparation was of the person who claimed the relevant T.A./D.A., namely, Ghulam Hussain. However, his approval and counter-signatures on this T.A. bill prove his responsibility and equal involvement in the matter. I have during the discussion of the T.A. bill highlighted its various features also with reference to the position of Mian Muhammad Abbas for the reason that the T.A. Bill contained his signatures and quoted him as the authority for the sanction and correctness of its entries.
694. The result of this discussion is that the T.A. Bill Exh. P.W. 31/6 and the Roznamcha entries Exh. P.W. 31/4 and Exh. P.W. 31/5 have been proved on the basis of both oral and documentary evidence to be fabricated documents, and instead of helping the defence have lent a significant support to the prosecution case that to screen this offence fictitious documents were designedly prepared by FSF personnel themselves. This feature of the case, as I will explain later. goes a long way to prove the basic conspiracy for the commission of the offence. However, for the present, confining ourselves to the short point under discussion, it is clear that in the face this overwhelming material on the record, the plea raised by Mr. Yahya Bakhtiar regarding the absence of Ghulam Hussain from Lahore during the dates of the occurrence, has no merit.
695. Mr. Yabya Bakhtiar also
challenged another part of the statement of Ghulam Hussain wherein he had
deposed that on the day following the occurrence, i.e. 12-11-1974 he had gone to see Mian Muhammad Abbas, appellant on
reaching
696. Mr.Yahya Bakhtiar then submitted that Ghulam Hussain approver, was arrested on 27-7-1977 and remained in F.I.A. custody 17 for days. He was produced before a Magistrate on 1i-8-1977 when he made a confessional statement under section 164, Cr. P. C. On 13-8-1977 he made an application for being made an approver and on 21-8-1977 he made (another) confessional statement. However ac cording to Mr. Yahya Buhtiar, he was still not satisfied with the statement already made by him, and in his so-called desire to purge himself of his sins, he sent an application to the High Court through Jail on 31-10-1977, during the course of the trial, submitting that his earlier statement as an approver was not wholly correct, and that he will be making a correct statement in the High Court. Mr. Yahya Bakhtiar contended that this was an advance information from the side of the approver that in the High Court he will be speaking the whole truth and will be making a better/correct statement. He submitted that in view of this type of conduct, or as he termed it the antics of Ghulam Hussain , there was no guarantee that what he stated in the High Court was the gospel truth. He also argued that all statements of Ghulam Hussain had been made by him after remaining in police custody for a good deal of time and as such they were neither voluntary nor true. The contention has no merit as there is nothing to show that Ghulam Hussain was not making a statement voluntarily. He had made two statements earlier, and he deposed to them in Court. No doubt he is an approver, but his statement has been subjected to lengthy cross-examination by counsel for all the accused, with further comments of all types in trial Court and also before us. The present discussion will deal with all of them in their own turn.
697. Mr. Yahya Bakhtiar argued
that Ghulam Hussain in answer to a question put to him in cross-examination by learned
counsel for some of the accused had stated that Arshad Iqbal fired twice by
turning over or by taking a turn. He submits that this was a twist on the part
of Ghulam Hussain to increase the number of shots to justify the existence of
empties at four places, even though initially he had mentioned just two shots
which would have led to fall of empties only at two places. He argued that
Arshad Iqbal had not claimed any such thing in his previous confessional
statement. He argued that Arshad Iqbal was stationed at the northern end of the
roundabout and to say that he then reached the southern end was even otherwise
an impossibility, because the distance between these two ends, according to Mr.
Yahya Bakhtiar, was 192.5 feet which Arshad Iqbal could not have traversed in
such a short time by which the car had to reach at that place, and which
naturally would have been faster in speed than a man on foot. From this also it
was suggested that Ghulam Hussain was not present in
698. Arshad Iqbal in his confessional statement Exh. P. W. 10/3 had stated that “we fired indiscriminately but the car escaped”. Actually he used the words (Anda dundh) in Urdu which means without count or thought, and are comprehensive enough to cover firing by turning round or firing more than once, or from different places and angles. Mr. Yahya Bakhtiar wanted to refer to the confessional statement Exh. P. W. 10/2 of Rana Iftikhar Ahmad to press his point that this accused also did not refer to any firing by turning round or more than once on the part of any firer. I have gone through that statement. It states (and then we fired from the stengun). It is obvious that this statement is also of a comprehensive form, and if later its details come on the record the same cannot be said to be inconsistent or contradictory with the previous statement of the accused in any manner. The upshot of this discussion is that the previous statement of any of the concerned accused if taken into consideration under section 30 of the Evidence Act does not exonerate any member of the attack party.
699. Mr. Yahya Bakhtiar submitted that in the site plan Exh. P. W. 34/2 the way the empties are shown as having been recovered from a particular spot indicates as if they were lying in a bulk form at one place, whereas according to the demonstration seen by this Court on 17-12-1978 the empties fell in a scattered form.
700. If the empties were lying in a bulk or bunch form, then according to Mr. Yahya Bakhtiar this would give a complete lie to the prosecution case which has failed to explain as to how the empties got collected in that form at four different places in different numbers. He submitted that according to the site plan, 7 empties were recovered from one place, 5 from another and 6 from each of the two other places respectively, that is 24 in all ; and a collective fall of so many empties at one place was against the natural working of an SMG/LMG weapon with an ammunition of 7.62 calibre.
701. Though this argument is converse of his earlier argument where he relied upon the theory of a perpendicular fall of empties but even this point also has no merit, as it is based on misreading and mis-appreciation of the relevant evidence in this context. It may be pointed out that Abdul Hayee Niazi, the then Investigating Officer, appeared as P. W. 34 but no question with regard to the point presently under discussion was put to him to explain details and other relevant features of his site plan Exh. P. W. 34/2 which was only (nazri) (i. e. visual plan without scale).
702. There is another site plan Exh. P. W. 34/5-D on the record. prepared on 17-11-1974 by Inam Ali Shah Draughtsman which might be looked into for the limited purpose of understanding the submission of Mr. Yahya Bakhtiar. In that plan the empties are shown in somewhat scattered form and the sketch is made on the scale of one inch for sixteen Karams. It is well known that 5 feet make one Karam, and from that point of view 16 Karams will be equal to 80 feet, which means that the scale is 80 feet to one .inch. Now one inch consists of 10 centimeters, which means that one centimeter will indicate 8 feet. This site plan further shows that in each of the places the empties are not shown in any bulk or bunch form, but are shown in a scattered form removed at same distance from one another. The precise position is that each empty is shown by a small dot which is apparently at a distance of one or half centimeter, from the other dot-in other words at a distance of 7/8 feet from one another. This indicates quite a natural fall of the empties, which were not found at any one place in a bulk or bunch form, and this position supports the prosecution case that the firing took place from sophisticated arms and ammunition, empties whereof fell in the natural manner shown in the plan.
703. At this place I reproduce Tiaras. 2 and 3 of our demonstration note dated 17-12-1978. They read as follows;----
704. The demonstration thus supports the fall of the empties as indicated in the relevant site plan (a). The point raised by Mr. Yahya Bakhtiar is therefore repelled.
ALLEGED OMISSIONS AND IMPROVEMENTS IN GHULAM HUSSAIN’S EVIDENCE
705. Mr. Yahya Bakhtiar then argued that the evidence of Ghulam Hussain suffers from vital omissions and improvements amounting to contradictions which indicate that he was not a reliable witness. In this respect he filed three charts and took us through the same in minute details. Mr. Ejaz Hussain Batalavi filed counter charts replying to each item of objection. I have attended to these matters in detail and my views with regard to the points raised in these charts are as follows :------
(i) Mr. Yahya Bakhtiar submitted that Ghulam Hussain has deposed that his paper posting was in Battalion No. 5, but an oral order was given by Mian Muhammad Abbas that he would work under him, i.e. Mian Muhammad Abbas at the Headquarters. The witness continued to state that one or two days after he joined service he was assigned special duty at Larkana by Mian Muhammad Abbas. Mr. Yahya Bakhtrr submitted that Ghulam Hussain had not stated so in his previous statements. The contention has no merit. In his confessional statement Exh. P.W. 10/11 recorded under section 164, Cr. P. C. as also in statement recorded after the grant of pardon, the witness had stated that he was posted in Battalion No. 5, and had been directed by Mian Muhammad Abbas to run a commando course and that he had been summoned by Mian Muhammad Abbas and was asked about the methods of kidnapping, etc. Examined in this context it is evident that in his statement before the High Court, the witness simply provided details as to how, while posted in Battalion No. 5, he was working under Mian Muhammad Abbas. There is thus neither any vital improvement nor contradiction.
(ii) It was next contended that Ghulam Hussain has deposed that for the purpose of training, the trainees in the Camp were to bring their own weapons from their Battalion and for them ammunition was to be drawn from the Armoury at 57-A, Satellite Town, the headquarters of the Federal Security Force. It was submitted that Ghulam Hussain had not stated any such thing in his previous statement. The contention has no merit. In his statement under section 164 of the Criminal Procedure Code (Exh. P.W. 10/11 at page 254, Volume of Documents), the witness stated that he had been given directions by Mian Muhammad Abbas about the Commando Course and setting up a Commando Camp. In his statement before the Court, he provided further information as to wherefrom the Commando trainees were to get ammunition. It is neither a contradiction nor an improvement.
(iii) Mr. Yahya Bakhtiar submitted that Ghulam
Hussain has deposed that Mian Muhammad Abbas gave him a chit and directed him
to obtain a stengun, a pistol, two magazines and ammunition from Fazal Ali,
Incharge of the Headquarters Armoury, that he took the chit to Fazal Ali and
asked for the material on the basis of a receipt which he was to furnish to him
but directed him not to enter the issue of the material in the Register “For
such were the orders of Mlan Muhammad Abbas”. Fazal Ali insisted that he would
issue the material only after making entries in the register. Ghulam Hussain
reminded him that he had produced a chit from Mian Muhammad Abbas and that he
was asking for the material on the basis of the order given by him. Fazal Ali
however, refused to do so. Ghulam Hussain then brought this fact to the notice
of Mian Muhammad Abbas who sent for Fazal Ali and warned him that he was to
carry out the order otherwise he would lose his job, etc. Then Fazal Ali
expressed his willingness to comply with the orders. On reaching the Armoury,
Fazal Ali handed over to Ghulam Hussain a stengun, two magazines, a pistol with
two magazines and ammunition for both. No entries were made in the register.
The witness handed over the receipt to him and took these things to his
Commando Camp. Mr. Yahya Bakhtiar submitted that the witness had not said any
such things in his previous statements. The contention has no force. In his
statement under section 164, Cr. P. C. (Exh. P. W. 10/1.1 .at page 255, Volume
of Documents), the witness stated that Mian Muhammad Abbas had ordered that he
should collect two stenguns and 4 rounds of ammunition from Fazal Ali,
Incharge, FSF, Headquarters Armoury. He took the stenguns and ammunition, and
went to the Commando Camp,
(iv) That after the failure of
(v) Ghulam Hussain has stated
that “Mean Muhammad Abbas ordered me to depute Head Constable, Zaheer and
Liaqat from the Commando Camp, to go to
(vi) Mr. Yahya Bakhtiar then referred to that
portion of the statement of Ghulam Hussain wherein he has deposed that Mian
Mahammad Abbas sent for him a day before Eid in October. 1974, and told him
that his men who had been’ sent to
(vii) It was contended that on return to
(viii) Ghulam Hussain has deposed that “between
7.00 and 8.00 p.m. on the 10th of November, 1974, I laid to Sufi Ghulam Mustafa
that we should try to find Ahmad Raza Kasuri that day so that we could show
some result whereupon Ghulam Mustafa, Iftikhar, Arshad Iqbal and myself, all
four of us left in a jeep towards
(ix) Ghulam Hussain in his
statement in Court stated that “we proceeded from there towards the
(x) Mr. Yahya Bakhtiar submitted that Ghulam Hussain in his statement in court has deposed that “Arshad Iqbal and Iftikhar donned overcoats to keep the stengun bidden. He submitted that the witness had not made any such statement before. To say with respect this is a mere hair-splitting and so long as the arrival of the attack party on the spot has fully been described by the witness, the portion referred to by Mr. Yahya Bakhtiar is neither an omission nor a contradiction, for that matter.
(xi) Mr. Yahya Bakhtiar referred to that portion of the statement of Ghulam Hussain where he has deposed that “Iftikhar was given the orders to open fire at the first car which came before him after Arshad Iqbal fired in the air. I had directed Arshad Iqbal to fire in the air for more than one reason. He was facing the Shamianas and if he had fired at the car, people in the Shamiana might be hit. Secondly, there was a danger of people sitting in the cars or those walking on the road being injured. Thirdly, because Iftikhar could not see the cars arriving from the side where the wedding was taking place and the firing in the air was .to be a caution for him”. Mr. Yahya Bakhtiar submitted that the witness had not said any such thing in the previous statement. He further submitted that in his previous statement dated 21-8-1977 Exh. P.W. 10/11-1 page 254 at page 257, be gave the reasons for firing in the air as follows: “I told Arshad to fire one or two bursts in the air after identifying the car, so that he may run away”. Similarly, in his confession dated 11-8-1977 he stated as follows: “I ordered teem that Arshad Iqbal would fire in the air after identifying the car and from the other side Rana Iftikitas would fire (so that there is commotion and our honour is also saved by this plausible excuse;”. The portions above replaced according to Mr. Yahya Bakhtiar contradict what the witness had deposed is Court. The contention has no merit. A perusal of the statement Exh. P. W. 10/ 11 pages 257/258 of Volume of Documents will shoe: that there is a clear mention by the witness in his statement that he posted Arshad Iqbal at one place, and Rana Iftikhar at another place 15 paces away. There is a mention of Arshad Iqbal being directed to fire in the air after identifying Ahmad Raza Kzsuris car: In the statement before the Court tile witness merely provided the details and the reasons for posting the two confessing accused at their respective places at the place of occurrence. In the circumstances, it is neither a material improvement nor a contradiction of his earlier statements. He also clarified the “ambiguity which had been caused by the use of the words, like the commotion”, etc. There is thus no omission or improvement or contradiction.
(xii) Ghulam Hussain has deposed that he came to the inter-section a number of times to keep Arshad Iqbal and Iftikhar on guard and also to find out whether the people had started leaving the place where wedding was taking place. It was objected that the witness had not stated so in his previous statement. The contention has no merit. In Exh. P.W. 10/11, page 257, Volume of Documents, the witness did state that having posted Arshad Iqbal and Rana Iftikhar Ahmad at their places of posting, he himself went to a side-road. He did not say that he did not come back from that road at all before he heard the sound of fire. In the circumstances, it can neither be a material improvement nor a contradiction. Even otherwise if the witness was organizing the attack, the activities and the movements deposed to by him would only be natural activities in the overall context, and cannot be termed as improvements.
(xiii) Ghularn Hussain has deposed in Court that “when we reached the FSF Headquarters in Shah Jamal, I found that the gate was closed. I asked the others to stay on where they were because I did not want us to be seen by the sentries soon after the firing. When I went near the gate I found the gate was closed but the sentry had wrapped the blanket around him and was asleep. The gate is on the right side of the building while some plants were growing on the left. We, therefore, went over the wall one by one from the latter side.” It was argued that the witness bad not stated any such thing in the previous statement. A perusal of Exh. P. W. 10/11, page 257, Volume of Documents will however show that the witness had already stated in his earlier statements that after the incident they came back to the FSF Headquarters and the reason or details for the same were provided in the statement made in Court and it can hardly be considered as an improvement or a contradiction. ‘
(xiv) The witness has deposed that “on checking the ammunition we found that 30 rounds had been fired that day”. It was argued that the witness had not stated any such thing in his previous statement. In Exh. P.W. 10/11, page 258, Volume of Documents, the witness stated that he heard three bursts being fired. Giving the number of rounds spent in that firing is a detail which was provided in Court in answer to a specific question. In the circumstances, it cannot be regarded as a material contradiction or an improvement.
(xv) Ghulam Hussain has deposed that “after
Sufi Ghulam Mustafa had spoken to Mian. Muhammad Abbas and before I left for
(xvi) Ghularn Mustafa has deposed in court that “Mien
Muhammad Abbas asked me if I had left anything incriminating at the spot which
would disclose that it was an FSF exploit. I told him that the spent ammunition
had been left there and we could net find it because of the darkness and the
grass”. It was argued that the witness had not made any such statement
previously. The contention has no merit. The witness in’ his earlier statements
nowhere mentioned that the empties were not left at the scene of occurrence in
(xvii) The witness has deposed that “when I wound
up the Camp, I returned to Fazal Ali, S.1, the remaining ammunition, live as
well as spent, from the Camp. I returned to him on the basis of a road
certificate. I was short of total 51 empties, including the 30 fired at
(xviii) Mr. Yahya Bakhtiar referred to that portion
of the deposition of Ghulam Hussain where he had stated that on the third day
after having my arrival recorded in the daily diary I had an entry of my
departure for
(xix) It was argued that Ghulam
Hussain had stated that “for the days I performed the special duty at
ALLEGED FALSEHOOD OF GHULAM HUSSAIN
706. Mr. Yahya Bakhtiar then contended that Ghulam Hussain bad deliberately made false statements on several points, and for that reason also he was not a reliable witness. The learned counsel elaborated these matters as under:-
(i) It was argued that the statement of Ghulam Hussain that he withdrew the ammunition himself as per Road Certificate Exh. P. W. 24/8 are false inasmuch as at page 585 of his evidence, tie deposed that the ammunition was obtained in the name of the Deputy Director of the Battalion No. 5. The contention has no merit, because it is based on some misreading of the record. Exh. P.W. 24/7 and Exh. P.W. 24/8 ‘show that the ammunition was given to Ghulam Hussain and though the ammunition was shown to be in the name of the Deputy Director, Battalion No. 5 but the actual recipient was Ghulam Hussain himself. The ambiguity is clarified by Ghulam Hussain who further stated that “every Battalion has its own armoury but ammunition has not been supplied to Battalions when I drew arms from the Headquarters”, which shows that the Battalion name was just used as a matter of form.
(ii) It was argued that Ghulam Hussain has deposed that he was not keeping any record of the ammunition issued to him but at the same time he admitted at page 588 that the ammunition was issued to his Assistant Sadiq Talib “and he used to account for it”. Learned counsel argued that this shows that the witness was making a false statement. The contention has no merit. There is no evidence on the record to suggest that any contrary practice was in vogue, and in the circumstances, if Ghulam Hussain deposed that when he gave ammunition to his Assistant Second-in-Command, the latter was to “account for it” that in no way shows that the statement on the subject aforesaid was false in any manner.
(iii) It was further argued that when Ghulam Hussain deposed at page 588 that “loss of empties in practice firing was reported”, then it implied that there must be proper registers in which the same was entered. 1n that view of the matter the statement of Ghulam Hussain that there was no regular register, it was argued, was not correct. As has already been mentioned, the witness emphatically stated that no register was kept at the Commando Camp and no evidence to the contrary has been brought on record. 1n these circumstances the testimony of Ghulam Hussain cannot be said to be false, when in fact no register showing anything contrary to what Ghulam Hussain deposed has been brought forward by the defence. It may be mentioned that in this respect Ghulam Hussain was simply deposing about a practice which was in vogue during those days. If that practice looks odd, then that is what the witness was trying to expose and he cannot be called a false witness because he disclosed the existence of an odd practice or practices.
(iv) It was next submitted that the story of Mian Muhammad Abbas having called Ghulam Hussain and having asked from him about the methods of abduction and kidnapping, etc. was false, and that similarly the direction of Mian Muhammad Abbas to identify Mr. Ahmad Raza Kasuri was “absurd and contradictory”. In elaboration of this submission, it was argued the Ghulam Hussain admitted that he was on intelligence duty in the National Assembly ; that in those days the Ahmadi question was being debated there ; that Ahmad Raza Kasuri was one of the prominent members of the Assembly ; and that constable Zaheer (who knew Kasuri) was also deputed with him for this purpose ; and, therefore, Ghulam Hussain’s deposition that he took sometime in tracing Ahmad Raza Kasuri, was not correct, especially when a jeep and a driver was also at his disposal. The contention has no merit. The witness was asked whether he made an attempt to identify Ahmad Raza Kasuri in the National Assembly with the help of others. His answer was that it was a “secret mission”. He was further asked whether he had seen Ahmad Raza Kasuri in the National Assembly’s criteria but his reply was again in the negative. These replied squarely meet the point raised by Mr. Yahya Bakhtiar, who at this stage submitted `x’ that the answers given by Ghulam Hussain to the questions put to him were all false. The contention has no force, inasmuch as there is no evidence on the record to falsify the aforesaid answers. There is no evidence to prove that the witness in fact saw Ahmad Raza Kasuri anywhere before the time claimed by him. The arguments of Mr. Yahya Bakhtiar are based on certain assumptions for which there exists no basis on the record and thus cannot be accepted.
(v) It was then submitted that Ghulam Hussain admits that he identified Ahmad Raza Kasuri 2-3 days after he was asked to do so by Mian Muhammad Abbas, and that according to his previous statements he was asked to do so in May, 1974 and he had been going to the National Assembly for 2 or 3 days and after identifying Ahmad Raza Kasuri he reported to Mian Muhammad Abbas and Mian Muhammad Abbas asked him to kill Ahmad Raza Kasuri ; but in Court at page 529/530 he made contradictory and inconsistent statements by saying that he was asked the methods of abduction and killing in May, 1974, that 2-3 weeks later he was called and asked to identify Ahmad Raza Kasuri ; that in August, 1974, he was asked about his efforts to identify Ahmad Raza Kasuri and directed to kill him. With reference to the aforesaid portions of his statement it was argued that the improved vision was given by the witness to bring his evidence in line with the prosecution case that the conspiracy came into existence after 3rd June.
The contention has no merit. All the statements made by Ghulam Hussain, i.e. before and at the trial, appear to be agreed on the point that he was able to locate and identify Ahmad Raza Kasuri in a matter of 3 or 4 days after he had been told to do so by Mian Muhammad Abbas, and the contradiction or variation is only in regard to the period of time which elapsed between the initial assignment to locate Ahmad Raza Kasuri, and the final entrustment of the task of killing him. In the previous statements Ghulam Hussain has given the impression that the mission to kill Ahmad Raza Kasuri was given to him by Mian Muhammad Abbas 2 or 3 days after he had been asked to locate Ahmad Raza Kasuri, whereas in Court he stated that this mission was given to him 3 weeks after the first assignment to identify and locate Ahmad Raza Kasuri. The defence had asked several questions in cross-examination to bring out the correct position in this behalf, and Ghulam Hussain’s replies thereto are to be found on pages 564 to 567 of the record of evidence. Ghulam Hussain explained at length that the correct position was that the assignment to kill Ahmad Raza Kasuri was given to him 3 weeks after he had been told by Mian Muhammad Abbas to locate and identify the man, but when he was in custody, Mian Muhammad Abbas sent. him a message begging that he should not implicate Mian Muhammad Abbas too deeply in this matter, and it was for ‘this reason that in his previous statements he made it appear that the mission to kill Ahmad Raza Kasuri was assigned by Mian Muhammad Abbas 2 or 3 days after the original assignment of locating him. During the course of his replies in cross-examination, Ghulam Hussain pointedly referred to an application which he had made in the High Court stating that he had given a garbled version of the events in his initial statement but he would make a full and true disclosure in the High Court. In view of this lengthy explanation, elicited by the defence in cross-examination, it appears to me that the contradiction between the two periods of time mentioned in the previous statements and at the trial stands properly explained. I have carefully read the replies given by Ghulam Hussain, and they seem to me to represent the true picture, as there was nothing to be gained by his changing the period to 3 weeks in Court, unless this was the correct position. He could easily have stuck to his statement in which be has stated the interval between the two assignments to be only of 2 or 3 days. In the circumstances I am of the view that this particular contradiction does not, in any manner, belie Ghulam Hussain’s testimony at the trial.
(vi) It was argued that according
to Ghulam Hussain he was threatened and coerced to do the job. However, he
associated Allah Bux and Molazim Hussain with him. It was argued as to who
threatened or coerced them. It was submitted as to why did those persons
readily agree. The questions are irrelevant, as Allah Bux and Molazim Hussain
are not prosecution witnesses in this case. Moreover, they were involved in the
(vii) It was then argued that at page 532 of
his evidence Ghulam Hussain has stated that he obtained the arms and ammunition
from Fazal Ali and kept it in the Camp. At another place he states that he
contacted Ahmad Raza Kasuri at 12-30
(noon) on 24-8-1974 and left
(viii) It was next argued that the Commando Camp
was at
(ix) It was argued that Ghulam Hussain has stated that a forged number plate had been placed on the jeep”. However, at page 594 the witness deposed that the numbers were painted on the bumper of the jeep and whenever false number was allocated the original number was rubbed out. It was argued that this was all contradictory because the practice suggested did not amount to replacement of a number plate. The contention has no merit, because placing of a number plate over the number inscribed on the bumper and then taking away the number plate after having used the jeep as aforesaid obviously involved a process which could in general terms be called changing of the number plate. The point raised by Mr. Yahya Bakhtiar therefore is not of any substance.
(x) Mr. Yahya Bakhtiar argued
that the statement of Ghulam Hussain that after the failure of the
(xi) It seems to me that as
regards the promptness and time within which the news regarding the
(xii) The contention that the warning given by Mian Muhammad Abbas to Ghulam Hussain approver to the effect that the Prime Minister was greatly annoyed at the failure of the Islamabad incident, shows that Mian Abbas was in direct touch with the Prime Minister, has really nothing to do with the truthfulness of Ghulam Hussain as he has not deposed anything on this point from his own knowledge. On the contrary, Masood Mahmood has deposed to appellant Zulfikar Ali Bhutto’s annoyance on this occasion, whereupon Masood Mahmood reminded Mian Muhammad Abbas, and the latter reassured him that the orders will be carried out. It is nobody’s case that there was a direct liaison between Mian Muhammad Abbas and the Prime Minister. However, there is evidence on the record to suggest that appellant Zulfikar Ali Bhutto did name Mian Muhammad Abbas to Masood Mahmood in the very first meeting that Masood Mahmood had with the Prime Minister (See page 66 Volume of Evidence) where Masood Mahmood has stated, “I was advised by him (The Prime Minister) against the termination of services of the re-employed officers without taking his prior permission. He told me that they were useful officers. Mian Muhammad Abbas was particularly mentioned”. Referring to the conspiratorial meeting at page 69 Volume I of Evidence, Masood Mahmood stated, “A day or two later I was sent for by the Prime Minister. He, inter alia, said to me that he was fed up with the obnoxious behaviour of Mr. Ahmad Raza Kasuri and that Mian Muhammad Abbas, an officer of the FSF, knew all about his activities. This officer is an accused in this case. The then Prime Minister further told me that this officer had already been directions given through my prodecessor to get rid of Mr. Ahmad Raza Kasuri. The Prime Minister went on to instruct me that I should ask Mian Muhammad Abbas to get on with the job and produce the dead body of Mr. Ahmad Raza Kasuri or his body bandaged all over.”
(xiii) As regards the Log Book of the jeep, Register of Vehicle and the Roznamcha entry, no doubt the same have not been produced in this case because the prosecution did not rely on them. However, if the defence wanted to raise any point with reference to that record they were at liberty to summon the same.
(xiv) As regards: the number of the empties, the
witness nowhere stated that he physically picked up the empties from the spot
after the attack at
(xv) It was argued that Ghulam Hussain had deposed that the trainees who attended the Camp did so after recording their departure in their respective Battalions. Mr. Yahya Bakhtiar submitted that no entry from daily diary has been produced to show that Zaheer, Liaquat or Iftikhar recorded their departure in the daily diary to attend the Commando Camp and as such, the deposition of the witness on the subject is false. The point about running of a Commando Camp/Course has already been dealt with above and it need not be laboured again. It stands fully proved by the documentary evidence already referred to earlier that Ghulam Hussain was indeed running such a Course or Camp There is accordingly nothing improbable in his assertion that the persons named by him, viz., Zaheer, Liaqat or Iftikhar were among those receiving training under him at this Camp.
(xvi) It was argued that Ghulam Hussain has alleged-(in the words of Mr. Yahya Bakhtiar in order to explain that he did not make true and full disclosure before the Magistrate)-that if he had not obeyed Mian Muhammad Abbas he would have been killed by him. Mr. Yahya Bakhtiar submits that in this context the witness has contradicted himself by referring to page 578 that Mian Abbas told him that he would not be able to hurt him and that he should make a statement after due consideration. It was argued that explanation given by Ghulam Hussain was not satisfactory and as such his deposition on the subject was false. The contention has no merit. There is no contradiction in the witness’s testimony on this aspect of the case. At page 565 of Volume 11 of Evidence, witness stated “that statement (referring to the statement of II August, 1977) was also correct so far as I have given an outline in that also, because at that time Mian Muhammad Abbas was not arrested and the life of my children as well as my life were in danger because I was aware of my misdeeds and I knew that I will be removed from the scene because of those”. It will be noticed that in this part of his statement, the witness is making reference to his own involvement in the criminal activities of the FSF and on the date he feared his safety,
(xvii) At page 578, the witness then stated, “before I left Rawalpindi, Mian Muhammad Abbas told me that the Director-General as well as the Prime Minister had already been placed under arrest and that he would not be in any way responsible for me and it was for me to make a statement after careful consideration”. Here the witness has only explained that the protection which he had enjoyed hitherto was not going to be made available to him because of the arrest of the then Prime Minister and the D.G., FSF. The interpretation put on this part of the witness’s testimony by Mr. Yahya Bakhtiar, viz. that Mian Muhammad Abbas could do no harm to him is misconceived. If the two statements are read together, one would find that the witness has rather explained the matters, and stuck to his stand that on the one hand the protection that he had been afforded had been withdrawn and on the other hand he had been put on his guard to be careful, lest Mian Muhammad Abbas may have to deal with him in order to save his own skin.
(xviii`) It was argued that Ghulam Hussain had falsely alleged that a message was sent to him by Mian Muhammad Abbas to save him (i.e. Mian Muhammad Abbas), as he had deposed on page 579 that he was lodged at a place where he had no contact with anybody, so that he was not even in a position to say that Masood Mahmood was also lodged in the same prison. It was stated that in this state of affairs, how could have any message reached him. It was argued that if his plea was to be accepted then it meant that the witness was a person amenable to coercion and pressure and changing his statements accordingly. Lastly, on this subject it was argued that plea of message or pressure, etc. was not correct because the witness had already made a similar statement on 11-8-1977, when there was no message from Mian Muhammad Abbas. The points raised by Mr. Yahya Bakhtiar have no substance. At page 579, Vol. II of Evidence, the witness did not say that he was kept in any solitary confinement. To have a contact with a “Mushaqqati” (i.e. a convict worker) is different from having a contact with the world at lage. The witness, however, has explained the position in which he was, and in this respect he was subjected to a detailed and thorough cross-examination, and asserted that he was telling the truth before the Court. His evidence in almost every material particular has been corroborated by other witnesses, and no fault can be found in it by reason of such objections. Similarly when the witness stated that he presented the facts in a confused or distorted manner in his earlier two statements, he did not assert that he had made altogether two different statements. The interpretation put by the learned counsel for the appellant on the evidence of the witness is thus totally untenable.
(xix) It was argued that in his
statement dated 21-8-1977 he had said that he
was called by Mian Muhammad Abbas in November, 1974 and asked to go to Lahore,
whereas according to Exh. P. W. 31/3 he had left
(xx) It was argued that Ghulam
Hassain had falsely alleged that there was another party detailed to kill him
and Ahmad Raza Kasuri, if he failed to kill Ahmad Raza Kasuri, because for 3
years after the occurrence he enjoyed service without any harm to him, and
similarly Ahmad Raza Kasuri was also not touched by anybody thereafter.
According to Mr. Yahya Bakhtiar, this shows that the witness was not truthful in
his deposition. The contention has no merit. As far as the witness is
concerned, he made two attempts on two separate occasions on Ahmad Raza Kasuri’s
life (Islamabad on 24-8-1974, and Lahore on 11-11-1974). 1n the first attempt at
(xxi) It was argued that Ghulam Hussain stayed
in
(xxii) It was argued that the deposition of
Ghulam Hussain on page 602 to the effect that it was the end of August or in
the month of September, that Zaheer and Liaqat were sent to
(xxiii) It was argued that Ghulam Mustafa accused
in his confession does not support Ghulam Hussain on the above subject inasmuch
as Ghulam Mustafa does not speak about his arrival and stay at
(xxiv) At page 597 Ghulam Hussain denies that he had any meeting with the Director-General in the National Assembly except on one occasion when he was interviewed for his promotion. According to Mr. Yahya Bakhtiar it is a false denial because like Masood Mahmood this witness is also anxious to show that all the candidates for promotion were interviewed “Simultaneously”. Mr. Yahya Bakhtiar submits as to why is the prosecution avoiding to show that Ghulam Hussain had at any time an exclusive meeting with the Director-General. In this respect he relies on Ashiq Muhammad Lodhi (P.W.28), Officer Incharge Disbanded, FSF, who deposed that in the end of fuly,1974, the Director-General sent for Ghulam Hussain and remained closeted with him for some time when red light throughout that period remained glowing on the door. The plea has no substance Ashiq Muhammad Lodhi (P.W. 28) stands discredited on the ground that in spite of being merely a formal prosecution witness who had been summoned to prove his secret report and forwarding letter (Exh. P.W’28/1 and Exh. P.W. 3/2-I) relating to the description of the gun man of Ahmad Raza Kasuri, he made unwarranted concession in favour of the defence in cross-examination. Apart from Lodhi’s concession, there is no evidence on the record that Ghulam Hussain had any direct contact with Masood Mahmood. The evidence available on the other hand, as already discussed, rather shows that Ghulam Hussain was working directly under Mian Muhammad Abbas.
(xxv) Mr. Yahya Bakhtiar argued that it was very strange that there was no contact between Mian Muhammad Abbas and Ghulam Hussain from 24th of August, 1974 till October, 1974. He posed a question, “Is this conduct of co-conspirators when goading and abusing is alleged.” He submitted that according to Ghulam. Hussain, Mian Muhammad Abbas did not trust him, and if that was so why he entrusted him with this job. It may be mentioned that Ahmad Raza Kasuri’s mission was not the only task assigned to him (which means that he was busy with other work also). However, there is no legal requirement that the conspirators must remain in personal contact with each other throughout the existence of a conspiracy. The argument, based on any such assumption is not well-founded.
(xxvi) Similarly, the question as to why did Mian Muhammad Abbas entrust the assignment of murdering Ahmad Raza Kasuri to Ghulam Hussain when he did not trust him is not well-founded in the overall context of the whole case, because the evidence reveals that Ghulam Hussain was apparently a good choice for this task, but Mian Muhammad Abbas may have been over-cautions in ensuring vigilance over Ghulam Hussain through other official of the Federal Security Force.
(xxvii) It was argued that Ghulam Hussain had made a
false statement when he deposed that whenever he was sent on special duty, he
was not to make entries in the Roznamcha, because on his own showing when he
was sent to Lahore from 16th to 26th October, 1974 for killing Ahmad Raza
Kasuri he did make an entry showing his departure for Lahore. It was argued
that the stand taken by Ghulam Hussain on the subject was self-contradictory, and for this
reason be was a self-condemned
witness. The contention has no merit. It has already been mentioned that during
the days aforesaid Ghulam Hussain was only entrusted with the job of
reconnaissance. Therefore, the destination was duly shown but its purpose was
not shown in the daily diary. In this state of affairs there is hardly any
inconsistency in the statement of Ghulam Hussain as the relevant entry in the
Roznamcha rather supports him as it does not mention the purpose of his visit
to
(xxviii) It was argued that Ghulam Hussain had made a contradictory statement as to exchange of ammunition, because, at page 540 he deposed that Mian Muhammad Abbas asked him to exchange the ammunition and at page 541 he stated that “I informed him (Ghulam Mustafa accused) that in compliance with the directions of Mian Muhammad Abbas I had obtained the ammunition and had also exchanged it.” At page 607 however he stated that he had not exchanged it. The contention has no merit. The witness clearly explained that Mian Muhammad Abbas had (no doubt) asked him to exchange the ammunition (page 530, Vol. II of Evidence). He further said that however, to quieten all concerned he had said to Ghulam Mustafa that the instructions had been complied with. Then be explained at page 607, Vol. II of Evidence that he did not do it as this was not possible and at that place he gave reasons for the same. In the circumstances it is not a case of contradiction but of disclosing the strategy deployed by him in the matter.
(xxx) It was next argued that Ghulam Hussain had falsely deposed when he stated that (ammunition of) a lot of a similar number cannot be issued to any other unit. It was submitted that as Ghulam Hussaitl has never been at Havelian Depot and nor had he anything to do with the FSF Armoury therefore his statement on the subject was even otherwise incorrect, especially when Fazal Ali the then Incharge Armoury (P.W. 24) has not made any such statement. The contention has no merit. Ghulam Hussain in this respect conveyed his own impression when he said that ammunition of a lot of similar number cannot be issued to anybody else. There was, however, nothing to stop the learned counsel for the appellant to cross-examine the witness as to the source of his information in this regard. However, as the evidence shows that he had been dealing with the receipt and return of the arms and ammunition and was also Incharge of the Commando Camp (having vast experience in that line) he can be considered to be in a position to depose about any practice prevalent in the quarters concerned on the subject under consideration at the relevant time. The criticism levelled against him on the ground put forward by Mr. Yahya Bakhtiar in the circumstances is not justified.
(xxx) It was argued that witness Ghulam Hussain also like Masood Mahmood indulged in a campaign of vilification and prejudicing the public by making statements about some alleged plan of the FSr to attack Mr. Jamil Hussain Rizvi (retired Judge) and Mr. Muhammad Ali, Film Star. The contention has no merit, as what is being complained of now was elicited in cross-examination of the witness, and the blame, therefore, if at all lies elsewhere and not on the witness. It may, however, be pointed out that the confessing assured have also supported the witness with regard to such illegal activities of the FSF.
(xxxi) It was argued that Ghulam
Hussain had deposed -that
during his visit to
(xxxii) It was argued that statement of Ghulam Hussain at page 611 shows that Liaqat and Ghulam Mustafa were also present at the time of the actual occurrence, and this negatives the prosecution case, or else Ghulam Hussain is making a false statement. The contention has no merit. The witness did not say that Ghulam Mustafa and Liaqat were present on the scene at the time of the actual occurrence.
(xxxiii) It was submitted that Ghulam Hussain gave a false explanation as to the name of Ghulam Muhammad mentioned in his previous statement regarding reconnaissance on the evening of 10th November, 1974. According to his evidence, he went to Larkana in the beginning of his service, and thereafter it does not appear that he had ever gone anywhere with the man named Ghulam Muhammad. The reply of the prosecution is that this might be a genuine oversight, or it may have been introduced apparently to save Mian Muhammad Abbas. Anyhow, as man by the name of Ghulam Mohammad is .not mentioned by the approver or have played any active part in the occurrence, his mention of this name in the earlier reconnaissance party has no material bearing on the case.
(xxxiv) It was submitted that at page 604 Ghulam
Hussain has deposed that the instructions were that they should use secraphone
and communicate in code words regarding secret mission and that the office of
the Director, Lahore (where be was staying) was equipped with secraphone.
However, at page 613 of his testimony the witness has stated that the
information regarding murder of Ahmad Raza Kasuri was conveyed to Mian Muhammad
Abbas on general telephone. According to Mr. Yahya Bakhtiar it appeared that the
witness was not making a natural or correct statement, because in the presence
of a secraphone how could such a sensitive matter be told on a general
telephone. The contention has no merit. Using the secraphone in the office of
the Director, FSF at
(xxxv) Mr. Yahya Bakhtiar argued that at page 613 of his deposition Ghulam Hussain stated that he was not involved in any other case and therefore could not be threatened by FIA. However, in his evidence in Court he has credited himself with many misdeeds. The statement of Ghulam Hussain, it was submitted, appeased to be clearly contradictory on the subject and the possibility of his having made a statement under fear could not be ruled out. The contention has no force. There is a marked distinction between an approver and an otherwise confessing accused. In the instant case Ghularn Hussain appeared as an approver and the greatest inducement to him is the safety of his own life in this case. In the face of the same to make suggestions for other similar motives is inapt, because, making true and full disclosure in this case has nothing to do with any other alleged deeds or misdeeds of a witness. There is, however, no evidence on the record to suggest whether this witness was involved in any other case. The comments made by the counsel for the appellant therefore are not supported by the record.
(xxxvi) It was submitted that the witness has made a false statement that the F. I. A. did not visit him in Jail, because page 342 of the evidence shows that he was taken to a Magistrate for pardon by the F. I. A. It was argued that this was a clear contradiction in the statement of Ghulam Hussain. The contention has no merit. When the witness has stated that he was not visited by F. I. A. officials while he was in Jail (page 342, Volume II of Evidence), he meant not visited for interrogation, and therefore, the mere fact that he was taken to the Court of a Magistrate by an F. I. A. official, did not mean that official was a member of any investigating team in this case. There is thus no conflict between both these statements. Again it may be pointed out that on factual plane the witness was not asked whether he knew that the man who escorted him from the jail premises to the Magistrate’s Court was an official of the F.I.A. and so far as he (the witness) is concerned, there is no evidence to show that he knew the identity of the person who escorted him from the jail to the Magistrate’s Court.
(xxxvii) At page 614 Ghulam Hussain said that he was on leave and therefore could not have met Ch. Nazir Ahmad on 10-5-1977. It was argued that in the next breath he admitted that he was on leave for 4-5 days since 26th April, 1977. It was alleged this also was a contradiction in the statement of Ghulam Hussain. The objection has no merit. The witness stated at page 614 that he remained on leave from 24th of April, 1977, and being on leave could not have met Ch. Muhammad Abdullah, Deputy Director. The reference to going on leave in the evidence is as to when he went on leave and initially for how many days. It is correct that he says that his initial application was for 4 or 5 days but he does not say that he did not extend his leave in any manner thereafter. Even otherwise, in the objection raised in the chart by Mr. Yahya Bakhtiar there are certain factual errors, e.g. the name is mentioned as Ch. Nazir Ahmad whereas in the evidence it is Ch. Muhammad Abdullah, and the date is not 26th of April, 1977, but 24th of April, 1977. The construction placed by Mr. Yahya Bakhtiar on the aforesaid matter in the circumstances explained is not justified, and it also suffers from factual errors.
(xxxviii) Ghulam Hussain stated that after receiving arms and ammunition from Fatal Ali he took it to Commando Camp and “having done so, I started following Ahmad Raza Kasuri”. But at page 598 he says that during the day when he was directed to finish Kasuri and the day when the assault was made on 24th August, he did not spot Kasuri nor did he even try to do so till he rang him upon 24th. It was argued that these statements did not coincide with one another on the subject. The contention has no merit, inasmuch as it is based on misreading the relevant portions totally out of their context. At page 532 the witness has said “I took these things to my Commando Camp. Having done so, I started following Ahmad Raza Kasuri. During this period, I also continued to run a course at the Camp”. A little later the witness stated “on the 20th of August, 1974 Mian Muhammad Abbas called me to his office. He complained to me that I did not perform the task assigned to me”. At page 598, the witness was then asked and replied as follows:-----
Q.-Did you ever spot Mr. Ahmad Raza Kasuri between the day when you were directed to finish him off and the day when the assault was made that is the 24th (August, 1974) ?
A.-I did not. I did not even try to do so till I rang him up on the 24th to arrange a meeting”.
From this evidence it is clear that the witness has done nothing and was being reminded as late as on the 20th of August, 1974, by Mian Muhammad Abbas to carry out the task. Therefore to suggest that there is any contradiction in the aforesaid two statements or that they were irreconcilable is an untenable interpretation.
(xxxix) It was argued that the story narrated by him at page 551 about return of ammunition on 25-11-1974 in order to cast doubt on his T.A. Bill Exh. 31/6 is false :-(because)
(a) It is an improvement.
(b) The Road Certificate of two or three days prior to 25-11-1974 is not produced.
(c) The entire ammunition issued is not returned. He says that it was after winding up of the Commando Camp, therefore, he was expected to return the entire ammunition received by him under Road Certificate 24/7 if his story was correct.
(d) Road Certificate Exh. 24/9 (p. 462) is a forgery
(i) Not on printed form.
(ii) Ghulam Hussain could not issue it. Please see evidence of Fazal Ali, at page 499 where he says, “A Road Certificate is issued by Incharge Armoury or by some senior officer of the Battalion” According to Ghulam Hussain, it is for this reason that Exh. 24/7 was in the name of Ghulam Hussain Butt, Deputy Director, Battalion No. 5 and the ammunition was issued in the name of the said person. (pp. 585-586).
(iii) It is signed by Fazal Ali as having received the ammunition Ghulam Hussain at page 586 says he cannot give any reason why this Exh. 24/9 is not signed by Fazal Ali.
(iv) Ghulam Hussain was not at
(v) Ghulam Hussain had been
directed by Mian Muhammad Abbas not
to show his presence at
(vi) The Road Certificate mentions pin of handgrenade. This was never issued to Commando Camp. The question put by Mr. Irshad Qureshi, Advocate, to the witness and the answer of the witness was merely designed to malign and vilify the appellant.
(vii) If the document Exh. 24/9 was genuine and Ghulam Hussain had actually returned the ammunition on 25-11-1974, then Exh. 24/9 would have been signed by Fazal Ali in token of having received the ammunition and returned to Ghulam Hussain for his record. This would have come from the possession of Ghulam Hussain (P. W. 31) or recovered from Battalion No. 5.
(viii) Documents Exhs. 24/9 and 24/ 10 are not shown to have been seized by the investigating agency. No seizure memo has been produced. The documents were not shown or appended with the interim or final. challan. Evidence of P.W. 41 Abdul Khaliq at page 697 may kindly be perused. Fazal Ali according to his evidence at page 495 was no more incharge of the Armoury. The documents have not therefore been produced from proper custody. The prosecution has not summoned these documents.
(xi) Ghulam Hussain at page 551 has stated that he went to return spent as well as live ammunition. From his evidence and confessions of co-accused it is apparent that Ghulam Hussain was in possession of live ammunition. Exhs. P. W. 24/9 and 24/10 do not show deposit of any live ammunition.
(e) Entry Exh. P.W. 24/10 (page 463 documents) supporting the above document Exh. 24/9 is also a forgery: Fazal Ali gives three versions;---
(i) Made by him (p. 492).
(ii) In the handwriting of Bashir (p. 493).
(iii) In the handwriting of Ilyas (p. 493). Ilyas is not examined.
( f ) He has stated an inconsistent and
contradictory story. He says that he continued to work at the Commando Camp
from 22-11-1974 to 29-11-1974. Please see page 556. At page 550 he alleges he wound
up the Camp and returned the spent as well as live ammunition which was not
accepted by Fazal Ali as 51 empties were short and that 2-3 days thereafter he went
to Fazal Ali and deposited the same. This is said to be on 25-11-1974. Thus on the one hand he says the Camp was wound up
before 23-11-1974 and on the other hand
alleges that he performed his duty in the
I have carefully examined these very detailed contentions, and in my opinion, they have no merits. My comments ‘on the points raised seriatim are as follows The T.A. Bill, Exh. P.W. 31 /6 at page 475 for the reason given earlier by me appears to be false document. The entries which are purported to have been verified from the entries in the Daily Diaries as explained earlier do not appear to be genuine, Therefore, the main contention raised herein that it is a genuine document is completely unfounded, The account given by the witness of return of ammunition on the 25th of November, 1974, has been proved to be correct and the documents Exh. P.W. 24/7 and Exh. P.W. 24/9 substantiate that claim:---
(a) It is not an improvement.
(b) The Road Certificate is only meant to be used as an authority for carrying the ammunition. The question of producing the Road Certificate which might have been utilised two or three days prior to the 25th of November, 1974, is neither here nor there. As the ammunition has not been returned on that Road Certificate, Ghulam Hussain did not retain that Road Certificate.
(c) The Certificate Exh: P. W. 24/ 7 (p. 460 of Documents) was with regard to all the ammunition issued to the witness on the 9th of May, 1974. The witness has clearly stated in his evidence that he on 25th November, 1974, returned all the ammunition, live as well as spent. Road Certificate Exh. P.W. 24/9 (p. 460 of Documents) deals with the spent ammunition only. There is no contradiction in the statement made by the witness in this regard and the documents fully support him.
(d) Road Certificate Exh. P. W. 24; 9 is a genuine document------
(i) It is wrong to say that the Road Certificate is not on a printed form. It is on a printed form (cyclostyled). There is no evidence to show that all Road Certificates must be on a certain specified kind of printed form. We must appreciate that Exh. P.W.Q4/9 was issued from the Commando Camp and Exh. P.W. 24/7 with which an effort is being made to compare this Road Certificate was issued from the Headquarters Armoury of Federal Security Force. Further, there is no evidence to suggest that the Commando Camp and the Headquarters had identical stationary.
(ii) From the evidence it would appear that Ghulam Hussain was the only person who could have issued Road Certificate Exh. P.W. 24/9. Fazal Ali’s evidence at page 449 would go to prove the fact that Ghulam Hussain was the person who was Incharge of the Commando Camp. He himself was the carrier at the same time. So while he took the spent ammunition for return to the Headquarters Armoury, he was the only person who could have issued the Road Certificate. As it was he who was carrying it, it had to be in his name as an authority for him to carry the spent ammunition. Exh. P.W. 24/7 was in the name of Ghulam Hussain Butt, Deputy Director, merely because, at the time when the ammunition was being issued, it was done in the name of an officer, but Exh. P.W. 24/8 (p. 461), which is the relevant entry in the Stock Register clarifies the situation that it was meant for Ghulam Hussain and nobody else.
(iii) The Road Certificate is a document which authorises the carriage of ammunition of prohibited bore. As the carrier was Ghulam Hussain, the question of Fazal Ali signing it does not arise especially when he was neither the person who issued the Road Certificate nor the person who was carrying it.
(iv) Ghulam Hussain was at
(v) Ghulam Hussain complied with directions
of Mian Muhammad Abbas. , He showed his presence in
(vi) The Road Certificate, Exh. P.W. 24/9, relates to the spent ammunition. The pin of the grenade was a part, of the spent ammunition. To suggest that the answer given by the witness to a question put by Mr. Irshad Ahmad Qureshi was designed to malign and vilify the appellant, is not a fair comment, because, each accused has a right to defend his own case in such manner and consistent with his stand and defence as he thinks proper. If in the confessional statements various accused had taken up any position they had a right to establish the same in accordance with law, including the process of putting questions and suggestions relevant to their defence to prosecution witnesses.
(vii) This point is based on a misconception about the use of Exh. PW. 24/9, the Road Certificate No. (iii) what has been stated above, provides the complete answer to this point.
(viii) The objections raised herein are fallacious. Fazal Ali in his statement under section 161, (Exh. PW. 39/9-D, page 514 Documents) had said that he would produce all the documents in the Court. The documents have come from the proper custody. As the overall discussion made above (ix) covers points No. (ix) as also point (e) No. (e), therefore, they are not being repeated here to avoid duplication.
(xi) It was argued that the statement of
Ghulam Hussain at page 556 that Mian Muhammad Abbas had scrutinized the T.A. Bill
to see that he had not shown his presence at
CONCLUSIONS AS TO GHULAM HUSSAIN’S EVIDENCE
707. After a detailed examination of the large number of submissions made by Mr. Yahya Bakhtiar so as to bring out even minute details of alleged contradictions, omissions, improvements and lies to be found in the evidence of approver Ghulam Hussain, I have come to the conclusion that the statement made by him at tire trial is not such as can be said to be lacking in intrinsic worth. Most of the criticism and objections raised by M. Yahya Bakhtiar is, speaking with respect to him, of a very trivial and inconsequential nature, and not such as to affect the substratum of his evidence. While dealing with these submissions and contentions, copious references have already been made to the corroborative evidence brought on the record by the prosecution to lend support to the oral testimony of approver Ghulam Hussain. It is, therefore, not necessary to go over the same ground again. Reference may now, however, be made to some additional pieces of corroborative evidence, and some other questions arising out of his testimony.
ADDITIONAL CORROBORATION OF GHULAM HUSSAIN
708. From the statement of Ghulam Hussain, as above indicated, it appears that Sufi Ghulam Mustafa appellant had taken certain ammunition (two step-guns and 60 cartridges and two pistols and 16 cartridges) from Amir Bakhsh Khan (P. W. 20), Deputy Director, FSF, Armoury Battalion No. 3, Walton Lahore. Ghulam Mustafa in his confessional statement has accepted this part of the prosecution version, and is further corroborated by the statement of Amir Badshah Khan (P.W. 20) who stated that he gave the above supply to him. He is also supported by Muhammad Amir (P.W. 19) driver of the jeep, who deposed that Ghulam Mustafa went in his jeep to Amir Badshah Khan and brought something which was wrapped and which appeared to be some arms /ammunition.
709. Ghulam Hussain has given
details of his visit to
710. Ghulam Hussain has deposed
how on various dates he had been drawing ammunition and arms etc. from where,
and how, and when he had been depositing the same back. In this respect first
of all we have evidence of Fazal Ali, Inspector (P. W. 24) who first deposed
about delivery of arms/ammunition to the FSF Armoury in
711. In this context now is to be
seen the withdrawal of ammunition, etc. by Ghulam Hussain. On 9-5-1974 Ghulam Hussain vide Road Certificate Exh. P.W. 24/7
obtained inter alia 1500 rounds of img/smg cartridges ; corresponding Stock
Register entry Exh. P.W. 24/8 supports this transaction. (It was or so much of
it as was unconsumed was returned vide Road Certificate Exh. P. W. 24/9 dated
25-11-1974 and Register Entry
Exh. P. W. 24/ 10). This shows that both on the date of attack in
EFFECT OF NEGATIVE REPORT OF
BALLISTICS EXPERT REGARDING GUNS OF 3RD BATTALION OF FSF,
WALTON,
712. This brings us to Mr. Yahya Bakhtiar’s contention that the negative report of the Ballistics Expert dated the 8th of September, 1977, regarding the use of any of the 25 guns of the Third Battalion of the FSF, then stationed in Lahore, in the present crime nagatives the entire prosecution case not only in regard to the use of weapons belonging to this Battalion, but also regarding the use of the FSF ammunition, which was, in any case, of a calibre also issued to some other units of the Civil armed forces, and was also available privately in the tribal areas of the North-West Frontier Province.
713. 1t will be recalled that,
according to the prosecution, the appellant Ghulam Mustafa had taken two guns
of this Battalion from Deputy Director Amir Badshah Khan (P.W. 20) under the
orders of appellant Mian Muhammad Abbas, and delivered them to approver Ghulam
Hussain for completion of the mission entrusted to him by Mian Muhammad Abbas
in regard to Ahmad Raza Kasuri. It is further in evidence that these were the
two guns which were used by the confessing appellants Arshad Iqbal and Rana
Iftikhar Ahmad in firing upon Ahmad Raza Kasuri’s car. While the crime empties
were sent for expert examination on the 23rd of November, 1974, a matter which
I have discussed at considerable length, while dealing with the nature of the
THEORIES OF SUBSTITUTION OF CRIME EMPTIES
714. Mr. Yahya Bakhtiar contends that this negative report of the Ballistics Expert upset the prosecution, and as a result of rethinking, the theory of substitution of empties in the year 1974 was introduced. In fact, according to Mr. Yahya Bakhtiar, the prosecution has advanced at least four alternative theories of substitution of the crime empties for the purpose of getting rid of the effect of the negative report of the expert ; but it has not succeeded.
715. According to the learned counsel for the appellant the four theories are;-----
(a) The crime empties were taken to the house of the Inspector-General of Police at Lahore on the night of the 11th of November, 1974, by the late D. S. P. Abdul Ahad, when the Inspector-General kept the empties with himself, and they came back to the D. S. P. one or two days before the 23rd of November, 1974, on which date he sent them for expert examination in a sealed cover;
(b) the substitution took place in the Prime Minister’s house at Rawalpindi where D. S. P. Ahad had gone on the 13th of November, 1974, and returned on the 15th of November, 1974, after taking instructions from the Prime Minister’s Chief Security Officer, Steed Ahmad Khan and his Assistant the late Abdul Hamid Bajwa, during the course of which a draft recovery memo. was also prepared and handed over to the D. S. P., who in turn delivered the same to the then Investigating Officer Abdul Hayee Niazi (P.W. 34). This theory does not show as to who substituted the crime empties, whether Saeed Ahmad Khan or Bajwa, but most probably it must be Bajwa as Saeed Ahmad Khan entered the picture in January, 1975, when the Shafi-ur-Rehman Tribunal had started its inquiry;
(c) the crime empties were substituted at Rawalpindi by Mian Muhammad Abbas who had obtained some other empties from his own subordinate Fazal Ali (P. W. 24) between 15th and 17th of November, 1974, at Rawalpindi, and this is the theory accepted by the High Court, although details of the operation were not brought out in evidence, namely, as to who took the replaced empties to Lahore and when ; and
(d) the replacement of the crime empties may have been made by the late Abdul Hamid Bajwa who had taken them away from the late D. S. P. Abdul Ahad, who had conveyed this information to D. I. G. Abdul Vakil Khan (P.W. 14) in response to the latter’s inquiry as to why the empties .had not been sent promptly for expert’s examination.
716. Mr. Yahya Bakhtiar has ‘also
referred to the various pieces of evidence having a bearing on these
alternative possibilities of the substitution of the crime empties before they
were sent for expert examination by the Investigating Officer on the 23rd of
November, 1974. After discussing this evidence he has tried to demolish the
same, with a view to showing that the High Court was in error in recording a
positive finding that the substitution had been done at
717. He contended that all the four theories are destructive of each other, and could hot save the prosecution from the damaging effect of the opinion recorded by the Firearms Expert that the crime empties recovered from the spot did not match with any of the guns of the FSF Battalion concerned.
718. The learned Special Public
Prosecutor submitted that it is true that the learned Judges in the High Court
have observed, in paragraph No. 431 of the judgment, that the empties had been
taken away from
719. After carefully considering
the submission made by the learned counsel for the parties, I have reached the
conclusion that there are, indeed, strong indications on the record that the
empties, in fact, recovered from the spot on the 11th of November, 1974, were
not sealed at the spot, and might have been replaced before being despatched to
the Firearms Expert on the 23rd of November, 1974. The most important evidence
in. this behalf is that of Nadir Hussain Abidi (P. W. 36), who had stated even
before the Shafi-ur
Rehman Tribunal in December, 1974, that he was called in by the Investigating
Officer Abdul Hayee Niazi on the morning of the 11th of November, 1974, when he
carried out an examination of Ahmad Raza Kasuri’s car and also of the spot.
Later in the day he went to the Police Station and Abdul Hayee Niazi showed him
24 crime empties and asked his expert opinion as to their calibre, etc. At that
time the empties were not in a sealed parcel, but were lying open. After examining
them he advised Abdul Hayee Niazi to obtain expert ‘opinion from the G. H. Q.
Inspectorate of Armament. This is the basic statement showing that the empties
had not been sealed at the spot, as allegedly stated in the recovery memo.
prepared on that date or may be later by S. H. O. Abdul Hayee Niazi. There are
then statements by two A. S. I. Abdul Ikrarn (P.W: 18) and Bashir Ahmad (P.W.
16), and references to the registers maintained at the Police Station, Ichhra,
with a view to showing that the details of the empties were not entered in the
relevant register until the 17th of November, 1974. Mr. Yahya Bakhtiar has
analysed and criticised the evidence of these two police officials at some
length, but I do not think it necessary to go into these details, for the
reason that their evidence has to be read alongwith the statements made at the
trial by D. I..G. Abdul Vakil Khan (P. W. 14) and Muhammad Asghar Khan, Senior
Superintendent of Police (P. W. 12) as well as by Sub-Inspector Abdul Hayee Niazi (P. W. 34). Even if there are
contradictions and omissions in their testimony, one significant fact remains
that the empties were not sent for expert examination until the 23rd November,
1974 and even then the core of the bullet recovered from the head of the deceased
was not sent for such examination, and it was despatched only after a direction
to this effect had been given by Mr. Justice Shafi-ur Rehman in December, 1974. From the mass of evidence
marshalled by the learned Counsel at the Bar it does appear that the late Abdul
Hamid Bajwa and the other senior police officers were all involved in the
investigation of this case, and it is also in evidence that the late D. S. P.
Abdul Ahad accompanied by D. S. P. Muhammad Waris (P.W. 15) had gone to
Rawalpindi to seek instructions from Saeed Ahmad Khan and Abdul Hamid Bajwa.
During all these days the empties remained somewhere, whether in the custody of
the Inspector-General
of Police or D. S. P. Abdul Ahmad or S. H. O. Abdul Hayee Niazi, or whether
they were taken to
720. It is true that in the cases relied upon by the learned Special Public Prosecutor, the benefit of any suspicious circumstance concerning the recovery of the crime weapon or empties, or unexplained delay in its despatch for expert examination was given to the accused, the plain reason being that the reports obtained in those cases by the prosecution were positive, and thus unfavourable to the accused. The Courts refused to place reliance on the genuineness either of the recovery or of the results obtained after delayed expert examination. It seems to me that in the peculiar circumstances of the present case, namely, where the empties were not sealed at the spot, and they were not sent for examination for 12 days, and the alleged weapons of offence were not made available for comparison for at least three years, the prosecution is right in submitting that the non-matching of these empties with any of the guns of the Third Battalion of the FSF would not have the effect of destroying the prosecution case, especially when there are a number of statements made by the concerned officials that the empties were not sealed at the spot but they were apparently handled by various high officials during the period intervening between their recovery and despatch to the expert. It is not a question of giving any benefit to the prosecution, but of deciding whether the negative report as to the matching of the guns with the crime empties would necessarily destroy the evidence of Ghulam Hussain approver. In the circumstances explained above I am of the view that this consequence does not follow in this case.
721. The matter, however, does not end here. Even though the crime empties did not match the guns of the Third Battalion of the FSF, when sent for expert examination in 1977, the fact remains that in the recovery memos relating to both the Islamabad incident and the Lahore incident the markings of the crime empties are shown as 661.71, thus showing they had come from the same source. Read along with the evidence of Fazal Ali (P. W. 24) who was in charge of the FSF Armoury at Rawalpindi, as well as of the letter of Col. Wazir Ahmad, the objection to whose admissibility was later dropped by Mr. Yahya Bakhtlar, this identity of marking would support the prosecution claim that ammunition of the FSF had ‘been employed in both the incidents, and this is precisely what approver Ghulam Hussain and the confessing accused had stated at the trial.
GHULAM HUSSAIN’S EVIDENCE WORTHY OF ACCEPTANCE
722. My conclusion, therefore, in
regard to the evidence of approver Ghulam Hussain is that, in the first place,
there is nothing improbable or unnatural about is that in view of his
experience and training as a commando and the rapid promotions given to him by
appellant Mian Muhammad Abbas, he was obviously a suitable choice for the
execution of the mission to eliminate Ahmad Raza Kasuri ; that the details
given by him as to the manner of execution of the conspiracy find valuable
support from the oral and documentary evidence brought on the record through
Fazal Ali (P. W. 24) as well as Amir Badshah Khan (P. W. 20). The discrepant
statements appearing in his T. A. Bill showing as his visits to Karachi and
Peshawar stand explained satisfactorily, and the connection of Mian Muhammad
Abbas with the activities of Ghulam Hussain approver is fully established by
the fact that in the relevant column of the T. A. Bill it was clearly stated
that the journeys had been undertaken under the orders of Mian Muhammad Abbas
; and it was under the directions of this appellant that the T. A. Bill in
question was expeditiously processed by the Accounts officials concerned.
Ghulam Hussain had no enmity with any of the other accused so as to implicate
them falsely in the actual firing incident, or in the supply of guns as in the
case of Ghulam Mustafa ; nor had he any motive to fabricate a false story
attributing effective role to his Director Mian Muhammad Abbas who had been
kind enough to give him rapid promotions and commendation certificates, etc. It
is also to be noted that Ghulam Hussain had fully implicated himself in the
crime. Finally, the important parts of his testimony with regard to the
incident at
723. As a result, it stands proved upon the record that Ghulam Hussain was inducted into the conspiracy by appellant Mian Muhammad Abbas, and that, in association with appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad, he organised and carried out the attack on Ahmad Raza Kasuri’s car during the course of which Kasuri’s father was killed.
Conspiracy defined
724. Mr. Yahya Bakhtiar contended that even if the facts alleged by the prosecution are held to have been proved on the record, they do not establish the essential ingredients of the offence of conspiracy, for the reason that there was no agreement on the part of approver Masood Mahmood, nor on the part of the other participants in the alleged conspiracy, as they have all asserted that they were acting under duress. Mr. Yahya Bakhtiar submitted that Masood Mahmood has deposed at the trial that he had no motive of his own, nor any intention, to have Ahmad Raza Kasuri assassinated, and he fell in line with the suggestion or orders given to him in this behalf by appellant Zulfiqar Ali Bhutto only when he was threatened by the appellant with being chased by the Establishment Secretary Mr. Vaqar Ahmad. Similarly approver Ghulam Hussain has averred that he was being pressurised and threatened by Mian Muhammad Abbas, and the other accused persons have also made similar statements in their confessions recorded under section 164 of the Criminal Procedure Code. Mr. Yahya Bakhtiar submitted that it is an established position in law that if the prosecution chooses to lead direct evidence to prove the existence of conspiracy, then it cannot be permitted to fall back upon circumstantial evidence in case the direct evidence falls short of the necessary proof.
725. In reply, the position taken by the learned State counsel was that the agreement essential for constituting the offence of conspiracy is not to be confused with agreement forming the basis of a contract, as the two are fundamentally different in their connotation ; that any plea of duress, pressure or coercion has to be specifically taken by the accused persons concerned in order to negative the existence of agreement on his part ; and that, in any case, no such plea can succeed unless it satisfies the requirements of law in regard to the degree of duress or coercion essential to negative the presence of mens rea. He next contended that the mode of proving an offence of conspiracy is in no manner different from that for proving any other offence, and, therefore, it is erroneous to think that if prosecution has chosen to lead direct evidence in proof of conspiracy then it is debarred from relying on circumstantial evidence. He submitted that the entire evidence in its totality has to be looked at for the purpose of determining whether the prosecution has succeeded in proving the essential ingredients of the offence or not ; and that any dichotomy of the evidence led by the prosecution into direct and indirect evidence, and then exclusion of indirect evidence from consideration, would be a highly artificial method of appraising evidence in a criminal case, which is completely unwarranted by law, and certainly calculated to lead to injustice.
726. The law of criminal conspiracy in this country is by and large founded on the concept of conspiracy as it had developed under the Common Law of England over the centuries. In the well-known case of the House of Lords, viz. Denis Dowling Mulcahy v. Reg ((1868) 3 H L 306); Willes, J. in delivering his opinion pointed out that;
“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in,,, intention only, it is not indictable. When two agree to carry it into effect the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. And so far as proof goes, conspiracy, as Gross, J. said in Rex v. Birssac (4 East 171) ; is generally ‘matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them’.”
The Lord Chancellor and the other Law Lords entirely concurred with these observations. However, in this connection Lord Cranworth further observed;
“It is a mistake to say that conspiracy rests in intention only. It cannot exist without the consent of two or more persons, and their agreement is an act in advancement of the intention which each of them has conceived in his mind. The argument confounds the secret arrangement of the conspirators amongst themselves with the secret intention which each must have previously had in his own mind, and which did not issue in act until it displayed itself by mutual consultation and agreement.”
727. Even earlier in Deniel O’Connel and others v. Her Majesty the Queen ((1844) 8 E R 1061) ; on appeal before the House of Lords, Tindal, C. J. in delivering the opinion of the Judges of England observed;---
“The crime of conspiracy is complete if two, or more than two, should agree to do an illegal thing; that is, to effect something in itself unlawful, or to effect, by unlawful means, something which in itself may be indifferent or even unlawful.”
He further observed that;
“It has accordingly been always held that to be the law, that the gist of the offence of conspiracy, is the bare engagement and association to break the law, whether any act be done in pursuance thereof by the conspirators or not.”
728. In Quinn v. Leathem (1900-1903) E R (Reprint); a case under the Law of Tort, Lord Brampton in his speech in the House of Lords said;
“A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is wrongful or harmful towards some other person. It may be punished criminally by indictment, or civilly by an action if damage has been occasioned to the person against whom it is directed. It may also consist of an unlawful combination by unlawful means.”
729. Willes, J.’s definition in Mulcahy’s case was expressly approved by the House of Lords in this case, and for the matter of that still holds the field. In this connection in Withers and another v. D. P. P. ((1970) 60 Cr. App. Rep. 85(H L)) ; Lord Kilbrandon observed that : “°A conspiracy is an agreement to do a certain thing. It is not the doing of a thing by agreement ; the doing of the thing may be evidence from which the making of the agreement can be deduced. When the thing is a criminal act, the agreement constitutes the crime of conspiracy.” In another case in R. v. Newland and others ((1954) 1 Q 8 154); decided by the Court of Criminal Appeal, Lord Goddard, C. J. observed that: “A conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means.” In the Queen v. Aspinall and others (1876 Q B D 48); it was held that the crime of conspiracy is completely committed, if at all it is committed, the moment two or more persons have agreed that they will do, at once or at some future time, something unlawful or in an unlawful manner. It is not necessary in order to complete the offence that anything should be done beyond the agreement.
730. In Halsbury’s Laws of England, 4th Edition, para. 58 defines the offence of conspiracy as under;
“The essence of the offence of
conspiracy is the fact of combination by agreement, express or implied, or in
part express and in part implied. The conspiracy arises and the offence is
committed as soon as the agreement is made; and the offence continues to be
committed so long as the combination persists, that is until the
conspiratorial agreement is terminated by completion of its performance or by
abandonment or frustration or however it may be. The actus
731. In British India, before the Partition of the Indo-Pakistan Sub-Continent, Chapter V-A on Criminal Conspiracy comprising sections 120-A and 120-B was inserted by the Indian Criminal Law Amendment Act, VIII of 1913 to form a part of the Indian Penal Code of 1860. Before this amendment, conspiracy to commit offences against the State was dealt with under Chapter VI of the Code. It was also laid down in section 107, secondly, that a person `abets” the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. But these provisions in the Code were not considered adequate. The scope of this amendment thus introduced by the Criminal Law Amendment Act, VIII of 1913 was explained in the following statement of the objects and reasons:
“Experience has shown that dangerous conspiracies are entered into in India which have for their object aims other than the commission of the offences specified in section 121-A of the. Indian Penal Code and that the existing law is inadequate to deal with modern conditions, The present Bill is designed to assimilate the provisions of the Indian Penal Code to those of the English law with the additional safeguard that in the case of a conspiracy other than a conspiracy to commit an offence some overt act is necessary to bring the conspiracy within the purview of the criminal law. The Bill makes criminal conspiracy a substantive offence .........
732. Section 120-A of the Pakistan Penal Code defines criminal conspiracy as under :-
“When two or more persons agree to do, or cause to be done :---
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”
733. This section makes criminal conspiracy a substantive offence on the statue book like every other offence in the Penal Code. By its very definition criminal conspiracy consists in the mere agreement between two or more persons to do an illegal act, or an act which is not illegal by illegal means. However, as pointed out in Mulcahy’s case a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an illegal act, or to do act by illegal means. As long as the design rests in intention only it is not indictable. The proviso to this section, however, expressly lays down that no agreement, except an agreement to commit an offence, shall amount to a criminal conspiracy unless some overt act besides the agreement is done in pursuance thereof.
734. This in essence is the whole gist of the offence of conspiracy and its characteristics. At the core, in a conspiracy, lies some sort of agreement, be it express, implied or implicit, or in any other form, between the parties thereto to do an illegal act or to do a legal act by unlawful means. Indeed, this is common ground, and on this there was no difference between the parties at the hearing before us, It is, therefore, not necessary to labour the point any further.
735. The next question that falls for consideration is as to the nature and character of the agreement which is of the very essence of the offence of conspiracy.
736. Mr. Yahya Bakhtiar submitted that as the word “agreement” as used in section 120-A of the Pakistan Penal Code, had not been defined in the statute itself, it had not technical meaning, and should be given its ordinary dictionary meaning. He stated that it is not his contention that the agreement, forming the basis of the offence of conspiracy should be judged in the light of the provisions of the Contract Act, but his submission is that there cannot be any departure from its ordinary meaning, which connotes a coming or knitting together of; a coming together in opinion or determination ; the coming together in accord of two minds on a given proposition ; the union of two or more minds in a thing done or to be done ; a mutual assent to do a thing. In support of this definition he referred us to Black’s Law Dictionary (page 89), Ballentine’s Law Dictionary (page 82) and Stroud’s Judicial Dictionary (page 95). He further argued that the word “consent” also conveys the same sense, namely unity of opinion or accord of minds, to agree or to give assent to something proposed or requested ; or concurrence of wills ; voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. He contended that if this element of a voluntary coming together of the minds is absent, then there is no agreement as required by the law of conspiracy.
737. Valuable assistance on this point is available in Volume 13-A of Corpus Juris Secundum (pages 602 to 603), in which it is stated as under;
“No formal agreement between the parties to do the act charged is necessary; it is sufficient that the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to do the acts and to commit the offence charged, although such agreement is not manifested by any formal words, or by a written instrument. If two persons pursue by their acts the same object often by the same means, one performing one part of the act and the other another part of the act, so as to complete it with a view to the attaining of the object which they are pursuing, this will be sufficient to constitute a conspiracy.
It is not essential that each conspirator has knowledge of the details of the conspiracy, of the illegality of the end which would be accomplished thereby, or of the exact part to be performed by the other conspirators in execution thereof ; nor is it necessary that the details be completely worked out in advance to bring a given act within the scope of the general plan.”
738. It is further emphasised that the existence of the agreement is generally a matter of inference from the acts of the parties. It is sufficient to constitute the offence, as far as the combination is concerned, if there is a meeting of the minds,’ a mutual implied understanding or tacit agreement, all the parties working together, with a single design, for the accomplishment of the common purpose (pp. 734-735-736). For this purpose it is not essential that the parties meet or that they confer and formulate their plans, or that each conspirator has knowledge of the scope of the conspiracy or the means by which the purpose is to be accomplished, or has knowledge of all the details or ramifications of the conspiracy (p. 738). It is sufficient that there is a general plan to accomplish the result sought by such means as may from time to time be found expedient. Conspiracy implies concert of design and not participation in every detail of execution, and it is not necessary that each conspirator should have taken part in every act, or know the exact part performed or to be performed by the others in the furtherance of the conspiracy (pp. 739-40).
739. Dr. Glanville Williams in his treatise on Criminal Law (Second Edition), on page 666, has expressed the opinion that :-
“The nature of the agreement required for conspiracy is in some doubt. On the face of it one might suppose that the agreement necessary for conspiracy is the same as the agreement necessary for contract ; it is a “meeting of the minds,” resulting usually from an offer and acceptance. Undoubtedly this type of agreement would be sufficient ; but the question is whether the word “agreement” may not have a laxer meaning in conspiracy than it has in contract. There is some authority for supposing that it may. In Leigh (1775 C & K 28 n.) it was ruled that an agreement to hiss an actor (or rather, perhaps, to raise a riot in a theatre) might be inferred from the acts done at one time and place, and that it was not necessary that the defendants should have come together for that purpose or have previously consulted together.”
740. According to Criminal Law by Smith and Hogan (Fourth Edition) page 236, a bare decision to perpetrate the unlawful object may be sufficient to constitute the agreement to the conspiracy. In this connection it was observed :-
“It may be that an agreement in the strict sense required by the law of contract is not necessary but the parties must at least have reached a decision to perpetrate the unlawful object.”
741. In the same connection Gerald Orchard, Lecturer in Law, University of Canterbury, Newzealand, has contributed a pains-taking and thought-provoking article on “Agreement in Criminal Conspiracy” (1974 Cr. L. R. 293 and 335) in order to examine the nature and possible scope of a conspiratorial “agreement”. The learned author has observed that the law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties “actually came together and agreed in terms” to pursue the unlawful object, there need never have been an express verbal agreement, it being sufficient that there was “a tacit understanding between as to what should be done”.
He has gone on to say that;
“In the context of conspiracy the courts have not analysed the concept of agreement in terms of offer and acceptance, and furthermore the court for Crown Cases Reserved, rejected the need for any such `contractual’ agreement in Tibbits (1902) 1 K B 77,”.
742. It will be seen that the correct position appears to be that the term “agreement”, as used in relation to the offence of conspiracy is not to be construed in any technical sense, as understood in the law of ‘contract ; hot is there any requirement that it should be expressed in any formal manner, or words; all that is required is that the minds of the parties meet understandingly so as to bring about an intelligent and deliberate agreement to do the acts and to commit the offence charged. There should, indeed, be a union of two or more minds in a thing done or to be done, or a mutual assent to do a thing. To borrow the words of Black’s Law Dictionary, agreement also connotes consent of two or more persons to contract a mutual obligation, and the word consent means a concurrence of wills, voluntarily yielding the will to the proposition of another ; or acquiescence or compliance therewith. The agreement can be express or implied, or in part express and in part implied. It is also not essential that each conspirator should have knowledge of the details of the conspiracy, or of the exact part to be performed by the other conspirators in execution thereof; nor is it, in fact, necessary that the details be worked out in advance to bring a given act within the scope of the general plan. It is sufficient that there is a general plan to accomplish the result sought by such means as ma from time to time be found expedient. In o0ier words, it is sufficient to constitute the offence, as far as the combination is concerned, if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the parties working together, with a single design, for the accomplishment of the common purpose.
743. It is further to be noted that, as stated by Halsbury, the conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is, until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration, or due to some other cause.
744. This being the meaning and essence of the agreement constituting the offence of conspiracy, it will be a question to be determined, in the facts and circumstances of each case, whether the prosecution has succeeded in establishing the existence of such an agreement. If circumstances are brought out in evidence to negative the essential ingredients of a conspiratorial agreement, as defined in the preceding paragraphs, then the charge of conspiracy would not be established. It is not possible to enumerate the variety of circumstances which may be relevant in this behalf, but it is obvious that they may include duress or threats of a kind which could, in the context of the facts of the case, be regarded as sufficient to negative the existence of an agreement.
745. It is one of the corner-stones of criminal justice that the burden of proving the ingredients of an offence remains throughout on the prosecution ; and it is only when the prosecution has discharged this burden, that the onus shifts to the accused person under section 105 of the Evidence Act, if he wishes to bring his case within any of the general or special exceptions or provisos contained in the Pakistan Penal Code or any other law defining and creating the offence in question. Even then, as held by the Federal Court in Sajdar Ali’s case (P L D 1953 F C 93), following the well-known Woolmington’s case, it remains the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence ; and if after examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt.
746. In this view of the law, Mr. Ijaz Hussain Batalvi is not right in saying that no plea of duress or threat, not falling within the ambit of section 94 of the Pakistan Penal Code, can be entertained at this stage to negative the existence of the agreement. The question at this stage is not whether any of the accused persons is protected by section 94 or any other provision of the law, by way of a general or special exception, but whether there are present on the record circumstances such as would negative the existence of an agreement necessary to constitute the offence of conspiracy.
747. In these circumstances it is not necessary to refer to the cases cited at the Bar on the question of duress or compulsion, etc., namely, Lynch v. Director of Public Prosecutions for Northern Ireland (1975AER913) ; Mirza Akbar v. King-Emperor (AIR1940PC178) and Kalil Munda and others v. King-Emperor (I L R 28 Cal. 797). In any case, the very elaborate discussion by the noble Lords in the case of Lynch is not germane for our purposes, as the law obtaining in Pakistan in this behalf stands embodied in section 94 of the Penal Code, with which I shall have occasion to deal while discussing the cases of the other appellants, namely, Mian Muhammad Abbas, Ghulam Mustafa, Arshad Iqbal and Rana Iftikar Ahmad. The other two cases cited at the Bar turn on their own peculiar facts.
Mode of proof of conspiracy
748. The question now arises as to the mode of proof permissible’ in a case of conspiracy. Gross, J. in Rex v. Brissac ((1803-4) East 164), said that “conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them”. These observations were adopted, by Willes, J. in his oft-quoted definition of the offence of conspiracy in) Mulcahy v. Reg.
749. In R v. Duffield and others ((1851-52) 5 Cox’s Cr. L C 404), it was held that the essence of this offence is the combination to carry out an unlawful purpose, and the unlawful combination and conspiracy is to be inferred from the conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct so obviously appears adopted to effectuate.
750. In this behalf in Reg. v. Charles Steward Parnell ((1877-82) 14 Cox’s Cr. L C 308), a case from Ireland before the Queen’s Bench Division, Fitzgreald, J. in his address to the jury, in summing up the law of conspiracy, said;
“But I have now to inform you, as part of the law of conspiracy, there is no necessity that there should be express proof of a conspiracy such as that the parties actually met and laid their heads together, and then and there actually agreed to carry out a common purpose. Nor is such proof usually attempted.”
In this connection he further observed “It may be that the alleged conspirators have never seen each other, and have never corresponded, one may have never heard the name of the other, and yet by the law they may be parties to the same common criminal agreement. Thus in some of the Fenian cases tried in this country, it frequently happened that one of the conspirators was in America, the other in this country, that they had never seen each other, but that there were acts on both sides which led the jury to the inference, and they drew it, that they were engaged in accomplishing the same common object, and, when they had arrived at this conclusion, the acts of one became evidence against the other.”
Addressing the jury further he added that;
“The agreement to effect a common object is usually an inference to be deduced by the jury, as men of common sense, from the acts of the alleged conspirators in furtherance of their purpose.”
751. Similar views were expressed
in Benoyendra Chandra Pandey and another v. Emperor (A I R 1936 Cal. 73) ;
Emperor v. Shaft Ahmad ((1925) 31 Bom. L R 515) ; State v. Shankar Sakharam
Jadhav and another (A I R 1957 Bom: 226) ; Barindra Kumar Ghose and others v.
Emperor (I L R 37 Cal. 467) ; Keshabdeo Bagat v. Emperor (A I R 1945 Cal. 93) ;
Nadir Ali Barqa Zaidi and others v. The State of U.P. (A I R 1960 All. 103) ;
Manghan Khan v. Emperor (A I R 1937 Sind 61) ; Emperor v. Ring (A I R 1929 Bom.
296) ; Amiruddin v. The State (P L D 1967 Lah. 1190) ; Noor Mohammad Yusuf
Momin v. The State of
752. It is not necessary to dilate at any length on the observations appearing in these judgments, but it will perhaps be useful to state that in the case of Noor Mohammad Yusuf their Lordships of the Indian Supreme Court thought it fit to observe that;
“like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material.”
753. In the last case, also from the Indian Jurisdiction, the Court observed that;
“in cases of conspiracy better evidence than the acts and statements of conspirators in pursuance of the conspiracy is hardly ever available.”
754. I now take up the further question that if, as in this case, prosecution has produced direct as well as circumstantial’ evidence to prove the factum of agreement constituting the offence of conspiracy, then is the Court debarred from looking at the circumstantial evidence besides the direct evidence, if for any reason the direct evidence appears to fall short of complete proof of the offence alleged.
755. No authority was cited at the Bar in support of such a drastic proposition. In fact, in the final written note submitted by Mr. Yahya Bakhtiar it has been stated that;
“It may be conceded that no special mode of proof is prescribed. The conspiracy may be proved by direct or indirect evidence or by both, but it is essential that indirect or circumstantial evidence should not contradict or negative the direct evidence ............
It is submitted that the prosecution has set up a specific agreement and the prosecution is bound to prove the same. If the evidence of Masood Mahmood falls short of proving it, circumstantial evidence or evidence of overt acts of Masood Mahmood contradicting the oral evidence cannot be relied upon -----That it is not possible to disbelieve the approver and at the same time hold that he is corroborated on certain points by circumstantial evidence and therefore his evidence should be accepted.”
756. As the contention has been formulated in the final written arguments, it does not question the right of the Court to look at both direct and circumstantial evidence to determine whether the prosecution has succeeded in proving the offence. This contention only relates to the appreciation of evidence, namely, whether the approver can be partly believed and partly disbelieved, as the case may be, if he is corroborated or contradicted by the circumstantial evidence. This is a question relating pre-eminently to the facts and circumstances of the case, to which I shall presently attend.
757. It may, however, be stated that the weight of authority is to the effect that both the kinds of evidence stand on the same footing ; and that, in some situations, circumstantial evidence may even be preferred to direct evidence for the reason, as stated by Monir, men may lie but the circumstances will not.
758. In Woodroffe and Amir Ali’s
Law of Evidence in
“As regards admissibility, direct and circumstantial evidence stand, generally speaking, on the same footing circumstantial evidence is no longer excluded by direct, and, even in criminal cases, the corpus delicti may generally be established by either species, or, indeed, by the defendant’s mere admission out of Court.”
759. Similarly Phipsan has remarked (Law of Evidence, 11th Edition, page 61) that ----
“One of the most conspicuous features of the modern law is its persistent recession from this once famous rule of leading best evidence (i.e. direct evidence).”
Cross, in his book on Evidence (page 15), has endorsed this observation.
760. In Gat-ton v. Hunter (1969 A11 ELR 451), Lord Denning M. R. disapproved the rule of best evidence as laid down by Scott, L. J. in Robinson Brothers (Brewers) Ltd. v. Houghton and Chester-le-Street Assessment Committee (1937 All ELR208), and observed “that now-a-days we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility”.
761. The same principle is reiterated on pages 905 to 916 of Volume 15-A, of Corpus Juris Secundum, namely, that a conspiracy may be proved by direct or indirect evidence or by both; and that circumstantial evidence is sufficient to sustain a conviction if the circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude threfrom that an unlawful agreement exists.
762. Reference may finally be made to Asadullah v. Muhammad Ali (P L D 1971 S C 541) and Mst. Razia Begum v. Hijrayat Ali and 3 others (P L D 1976 S C 44), both of which have direct relevance to the point we are considering here. In the first case it was observed that:-
“The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judge did in the instant case. Indeed it would be anomalous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be the basis of conviction.”
763. In the second case following significant observations were made :---
“In the instant case, the error is much more serious. The learned Judges have rejected direct ocular evidence for reasons which on scrutiny appear to be fallacious, have also completely ignored what is plainly cogent confirmatory evidence of the prosecution version. Therefore, the learned Judges have failed to determine the guilt of the three respondents on the totality of legal evidence available in the case as they should have had. It is a well established rule governing the administration of criminal justice that evidence should not be considered in isolation as so man bits of evidence, but the whole of it should be considered together and its cumulative effect must be weighed and given effect.”
764. Having laid down this principle, the Court proceeded to appraise the direct as well as the circumstantial evidence available in the case and arrived at the conclusion that the respondents were guilty of the offence of murder. The judgment in this case was delivered by Muhammad Gul, J. and concurred in by two other Judges, including the learned former Chief Justice. I cannot see any reason for departing from the same in the present case.
765. Turning now to the facts of this case, it is true that while giving oral evidence as the second witness for the prosecution, Masood Mahmood has stated at the trial that he protested when the former Prime Minister told him that he was fed up with the obnoxious behaviour of Ahmad Raza Kasuri, and that the witness should ask Mian Muhammad Abbas to get on with the job and to produce the dead body of Ahmad Raza Kauri or his body bandaged all over, and that he would held Masood Mahmood personally responsible for the execution of this order. According to Masood Mahmood, he told the Prime Minister that it was against his conscience and also against the dictates of God, but the Prime Minister lost his temper and shouted that he would have no nonsense from him or Mian Muhammad Abbas and added “you don’t want Vaqar chasing you again do you ?”
766. If this oral statement had stood alone, without there being any further evidence at all as to how Masood Mahmood conducted himself subsequently in regard to this matter, there would have been some basis for Mr. Yahya Bakhtiar’s contention that the essential ingredients of a conspiratorial agreement were lacking in this case. But viewed in the light of the voluminous evidence showing as to how Masood Mahmood, in fact, conducted himself after receiving these directions, the protest deposed to by him at the trial loses all meaning and significance.
767. In the first place, it should be noted that the threat uttered by the appellant was whether Masood Mahmood wanted the Establishment Secretary Vaqar Ahmad to chase him again, meaning thereby that Masood Mahmood might be in some trouble with his service career. There is no threat of any physical violence or any other coercion or duress. For an officer of the rank and seniority of Masood Mahmood, the threat or warning given by the former Prime Minister was, or ought to have been, of little or no consequence considering the gravity of the mission being assigned to him. However, after this interview Masood Mahmood called Mian Muhammad Abbas to his office and repeated to him the orders given by the Prime Minister, knowing fully well that he had been made personally responsible for the execution of this order. On subsequent occasions Masood Mahmood was reminded and goaded again and again about the execution of this order by the former Prime Minister both personally, as well as on the green telephone, and also through Saeed Ahmad Khan. There is no material whatsoever, not even an assertion by Masood Mahmood, to show that he protested in any manner on these occasions, or that he expressed his inability to execute the mission assigned to him. On the contrary, we have in evidence of Saved Ahmad Khan that when he conveyed to Masood Mahmood the message of the Prime Minister, Masood Mahmood answered “alright”. This answer clearly indicated his acquiescence or compliance with the directions or proposal given to him by the Prime Minister in regard to doing away with Ahmad Raza Kasuri. Such conduct on the part of Masood Mahmood clearly amounted to consent, in one of the senses indicated in the definition relied upon by Mr. Yahya Bakhtiar himself. It is significant that upto this stage Masood Mahmood had not taken any step whatsoever to get himself released from the obligation placed upon him by the Prime Minister. He continued to serve as Director-General Federal Security Force without any apparent indications of his unwillingness to proceed with the assignment. He even inducted Mian k1uhammad Abbas into the conspiracy, although stating before the Court that Mian Muhammad Abbas gave him to understand that he already knew of this mission since the days of Masood Mahmood’s predecessor.
768. In cross-examination Masood Mahmood made it clear that from the time of the interview spoken of by him, he was also in the conspiracy, and that earlier it were Mr. Haq Nawaz Tiwana, appellant Zulfiqar Ali Bhutto and Mian Muhammad Abbas. This answer given in cross-examination clearly shows an awareness on the part of Masood Mahmood that he had, in fact, joined the conspiracy.
769. The matters, however, do not
rest here. He not only conveyed the directions to Mian Muhammad Abbas as
desired by the former Prime Minister, but took further steps in July, 1974,
during his visit to Quetta along with the then Prime Minister, inasmuch as he
instructed his Local Director M. R. Welch (P. W. 4), to eliminate Ahmad Raza
Kasuri as this man was an anti-State
element. According to M. R. Welch, Masood Mahmood also told him that Kasuri was
making obnoxious speeches against the then Prime Minister. Masood Mahmood has
spoken of an audience which he had at
770. Masood Mahmood then took
further action in September, 1974, when Ahmad Raza Kasuri actually visited
771. Before the September, 1974
visit of Ahmad Raza Kasuri to
772. I should also have mentioned that it was elicited from Masood Mahmood in cross-examination by the defence that after his Quetta audience with the Prime Minister on the 29th July 1974, as a result of which he had given instructions to M. R. Welch, and before the Islamabad incident on the 24th of August, 1974, the former Prime Minister had said to him that so far nothing had happened ; that he fully understood the inference of this remark and conveyed it to Mian Muhammad Abbas. Now, if Masood Mahmood was, indeed, not voluntarily and consciously participating in the conspiracy, then this kind of understanding of the remark, and his passing it on to Mian Muhammad Abbas, cannot be easily explained.
773. Finally, when we come to the incident of the 11th of November 1974, during which Ahmad Raza Kasuri’s father was assassinated, we find that on that day Masood Mahmood was present at Multan along with the former Prime Minister, and on their return to Rawalpindi again a meeting took place between them, and it was at this stage that he finally decided to disassociate himself from this conspiracy. On returning to Rawalpindi Masood Mahmood also met Mian Muhammad Abbas, when the latter told him that although his plan had succeeded but unfortunately instead of Ahmad Raza Kasuri his father had been killed. Even this conversation leads to the irresistible inference that Masood Mahmood was full in the conspiracy, willingly and consciously, and constantly, in touch with his Director Operations, namely, appellant Mian Muhammad Abbas in regard to this affair.
774. For the foregoing reasons, I have reached the conclusion that, in the first place, the protest lodged by Masood Mahmood on hearing appellant Zulfiqar Ali Bhutto’s proposal to eliminate Ahmad Raza Kasuri, and the threat uttered by the appellant to have Vaqar chase Masood Mahmood, are not matters as could effectively negative the coming into existence of an agreement between the two in this behalf. After narrating this part of the story, Masood Mahmood has himself made it clear that on going back to his office he immediately called his Director Mian Muhammad Abbas and asked him to get on with the job. The threat uttered was a meaningless one in the context of the gravity of the mission being assigned to Masood Mahmood. He had full opportunity to try to escape from the situation by resigning or proceeding on leave, but he did nothing of the kind. Instead he passed on the directions to his subordinate Mian Muhammad Abbas. I am, therefore, satisfied that even at the initial meeting an agreement did come into existence.
775. In the second place, taking an over-all view of the totality of evidence, I think there can be no doubt whatsoever that irrespective of the oral protest mentioned by Masood Mahmood, it stands clearly established that there was, indeed, a conscious understanding, or a meeting of the minds between the former Prime Minister and approver Masood Mahmood to eliminate Ahmad Raza Kasuri for the reason that he was indulging in obnoxious criticism against the Prime Minister. It is not necessary to go to the extent of disbelieving Masood Mahmood’s testimony as to the protest he is supposed to have made at the initial meeting and it is enough to observe that whatever his initial reaction may have been, he undoubtedly fell in line with the proposal or proposition put forward by appellant Zulfiqar Alt Bhutto, and, therefore, an agreement of the kind mentioned in section 120-A of the Pakistan Penal Code did come into existence so as to constitute the offence of conspiracy. In order to arrive at this conclusion, all the facts and circumstances brought out in the evidence have to be considered, and when that is done this conclusion becomes irresistible. The Court cannot adopt an artificial dichotomy between the oral testimony of Masood Mahmood and the mass of circumstantial evidence showing his factual conduct after his initial meeting with the former Prime Minister regarding the elimination of Ahmad Raza Kasuri.
776. There is no rule of law, nor of prudence, that the entire evidence of an approver has either to be accepted or rejected, unlike the evidence of any other competent witness, where the Courts have ion adopted the rule of sifting the grain from the chaff. It is notorious that an approver may try to under-state his own involvement in crime, or may even try to save some of his own friends or relatives, but these weaknesses in the approver’s character have never prevented the Court from appraising his evidence in the light of all the corroborative circumstances brought on the record. As early as 1915, in the case of Balmokand already referred to in another context, the learned Judges had taken note of this weakness and observed that there were certain kinds of falsehoods which did not damn the whole of the evidence. Again in Bhola Nath and others v. Emperor, (A I R 1939 All. 567) it was stated : “Where the approver makes positively false statements in respect of a particular point and yet the evidence produced in the case goes to prove beyond any doubt that in other respects his evidence is trustworthy and is fully corroborated by very best evidence produced, it would be wrong in that case to suggest that because the approver has made a wrong statement on a particular point his whole evidence should be rejected”.
777. It seems to me, therefore, that even if I were to hold that Masood Mahmood’s testimony as to the protest supposedly lodged by him when the Prime Minister initiated the conspiracy, is contradicted by circumstantial evidence as to his subsequent conduct, it would have n bearing on the fact that the evidence as a whole clearly establishes hi volume acquiescence or compliance with the proposal made by the former Prime Minister, so as to constitute the necessary agreement essential for the offence of conspiracy.
778. A point was raised by Mr. Yahya Bukhtiar as to which conspiracy Masood Mahmood had deposed to at the trial, whether the one hatched between appellant ZuIliqar Ali Bhutto and Masood Mahmood’s predecessor Malik Haq Nawaz Tiwana, or some subsequent conspiracy. The point is only one of academic interest for the reason that the prosecution has not charged the appellant with the earlier conspiracy, and the only reference to it is contained in the statement made by Masood Mahmood that appellant Zulfiqar Ali Bhutto had told him that Masood Mahmood’s predecessor knew all about the affair, and that Mian Muhammad Abbas also knew about it. The fact remains that no evidence was led by the prosecution regarding this conspiracy, nor was it alleged by the defence, in cross-examination or otherwise, that anything had at all been done by Malik Haq Nawaz Tiwana or Mian Muhammad Abbas in relation to that earlier conspiracy. Such being the case. it is, indeed, irrelevant to discuss the question as to which conspiracy Masood Mahmood is trying to prove. It is clear that he is proving the conspiracy which was entered into between him and appellant Zulfiqar Ali Bhutto, and into which later Mian Muhammad Abbas and the other appellants and the approver Ghulam Hussain were inducted.
779. More or less similar considerations apply to the part played in this affair by Mian Muhammad Abbas and other three appellants. Although they have also alleged coercion or pressurisation by their superiors, but evidence as to their conduct clearlyy establishes a pattern of a voluntary participation, in the crime, details of which will be discussed when disposing of their appeals.
Application of sections 111 and 301 of the Pakistan Penal Code
780. Mr. Yahya Bakhtiar and Mr. Ghulam Ali Memon next contended that the High Court fell in error in convicting the appellant under section 111 of the Pakistan Penal Code, as the death of Nawab Muhammad Ahmad Khan could not be regarded as a probable consequence of the alleged conspiracy to kill his son Ahmad Raza Kasuri ; and at in any case this section could not be invoked as the appellant was not charged thereunder. They further contended that the High Court could not alter, or add a charge without observing the procedure prescribed by sections 227 and 231 of the Procedure Code, and giving the accused an opportunity to recall the prosecution witnesses. Finally, they submitted that the High Court also erred in applying section 301 of the Penal Code to the accused other than the two contesting accused, namely, Z.A. Bhutto and Mian Muhammad Abbas (and on the same reasoning Ghulam Mustafa) could at least be convicted only under section 120-13 for conspiracy and under section 307 read with section 109, P. P. C. for the attempted murder of Ahmad Raza Kasuri.
781. Section 111, P. P. C. provides that;-----
“When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it;
Provided the act done was a probable consequence of the abetment and was committed under the influence of the instigation, or wits the aid or in pursuance of the conspiracy which constituted the abetment.”
782. The finding of the High Court that section 111, P. P. C. was attracted in the circumstances of the case was vehemently criticised by Mr. Ghulam Ali Memon, who addressed arguments on this part of the case, and his submissions were reiterated by Mr: Yahya Baktiar during the final reply. On the basis of the judgments delivered in a large number of cases brought to our attention, namely, Queen-Empress v. Mathuto Das (I L R 6 All. 491) ; Sukha v. Emperor (A I R 1918 All. 97 (2)) ; Harnam Singh v. Emperor (A I R 1919 Lah. 256) ; Po Ya v, Emperor (A I R 1919 Law. Bur. 20 (2)) ; Mumtaz Ali v. Emperor (A I R 1935 Oudh 473) ; Girja Prasad v. Emperor (A I R 193 All. 346 (2)) and Sonappa Shina v. Emperor (A I R 1940 Bom. 126) ; it was contended that section 111 did not come into play, and that from the above-cited cases the following propositions were deducible;
(1) That section 111 has to be closely and strictly construed, other wise there will be no limit to which it can be extended.
(2) That the different act ensued must be the probable consequence of the conspiracy as originally formed.
(3) That the different act done must have been done in pursuance of the conspiracy constituting the abetment.
(4) That the relevant time for determining whether or not a different act done is the probable consequence is the time when the conspiracy was hatched disregarding subsequent developments ; and
(5) that the above ingredients of the offence must be established affirmatively by the prosecution.
783. It was submitted that the case of the prosecution was that the appellant had entered into a conspiracy to kill Ahmad Raza Kasuri and admittedly there was no conspiracy to kill Nawab Mohammad Ahmad Khan. On the state of evidence it was incumbent upon the prosecution to establish that the alleged killing of Nawab Mohammad Ahmad Khan was the “probable consequence” of the act actually abetted, namely, the killing of Ahmad Raza Kasuri and further that the act of killing of Mohammad Ahmad Khan was done in pursuance of the alleged conspiracy. It was added that it was necessary for the prosecution to establish that at the time of entering into the alleged conspiracy the conspirators could reasonably apprehend the act of killing Mohammad Ahmad Khan as a probable consequence of the act for the commission of which the conspiracy was entered into.
784. Analysing the provisions of section 111, P. P. C. the learned counsel submitted that there were two essential ingredients of the section which must be fulfilled, namely, (i) it should be affirmatively proved that the act done was the probable consequence of the abetment and (ii) that the act done was in pursuance of the conspiracy which constituted the abetment. It was further argued that a different act must have been visualised as the probable consequence of the act abetted at the time the conspiracy was entered into and not at the time when the different act was done. In other words, the conspirators must visualize the probability at the time when the conspiracy was hatched. Mr. Memon submitted that in the present case the prosecution has produced no evidence that at the time the alleged conspiracy was entered into in June, 1974, the conspirators could visualize that as a result of the abetment of the act of killing of Ahmad Raza Kasuri a different act, namely, that of Nawab Mohammad Ahmad Khan being killed, was the probable consequence. Further, as it was the prosecution case that the alleged conspiracy itself was confined only to the killing of Ahmad Raza Kasuri, the alleged killing of his father could not possibly fall within the expression “in pursuance of the conspiracy which constituted the abetment”. He submitted that the High Courts have consistently held that a very close and strict test should be applied to the interpretation of the penal statute and specially section 111, P. P. C. as otherwise if the section is construed loosely it is difficult to say to what limits it might not be stretched.
785. In reply, Mr. Batalvi submitted that the prosecution did not wish to join issue with the defence so far as propositions I and 3 formulated by Mr. Memon were concerned. Further, the prosecution generally agreed with the submission contained in proposition No. 5. However, before examining the provisions of section 111, P. P. C. he invited our attention to the provisions of section 107, P.P.C. which reads;
“A person abets the doing of a thing who
First.-Instigates any person to do that thing ; or
Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.”
786. Section 107 deals with abetment and covers three kinds of this offence .-----
(1) Abetment by instigation;
(2) Abetment by aid; and
(3) Abetment by conspiracy.
So far as the aspect of conspiracy was concerned, the test was given in the section itself, namely, that the act or illegal omission should take pl:..-e in pursuance of the conspiracy.
787. In response to the propositions formulated by the defence, the Counsel submitted that he had the following points to put forward:---
(1) An objective test was to be applied to determine whether the act done-was a probable consequence of the conspiracy.
(2) The act done might not have been foreseen but it should have been foreseeable by the abettor/conspirator.
(3) For the responsibility of the probable consequence, a participant in the conspiracy could not take benefit if he had limited imagination or if in his own recklessness he did not want to foresee.
Section 111 according to the counsel dealt with a by product of a criminal enterprise. In this the only factor to be determined was the relationship of the act done to the act abetted. In other words, the proximity of the act abetted and the act done had to be studied. The section undertook an anatomy after the act had been done. It looked at a situation post facto and it apportioned responsibility or liability. The test, according to the counsel, was that the law told the conspirator: “You did not foresee the act done but you should have foreseen it.” Where, therefore, it could be said that the act done stood in a close proximity to the act abetted the acct done was the probable consequence of the act abetted.
788. Dealing with the defence argument that even if the prosecution evidence were to be believed, section 111 could not be applied and no culpability could be attached to Z. A. Bhutto, the learned Special Public Prosecutor submitted that the following facts were noteworthy:---
(1) The conspiracy was between Z. A. Bhutto, Masood Mahmood and others and it was to kill Ahmad Raza Kasuri through the personnel of the FSF.
(2) The attack was mounted on a moving car having been identified as Kasuri’s car and having the knowledge that he was returning from a wedding reception in the middle of the night.
(3) The assailants were members of the FSF and they used automatic weapons of a prohibited bore and continued firing on the car as long as they could.
(4) The death of Nawab Mohammad Ahmad Khan was the direct result of their attack. In these circumstances, the question for determination was whether the death of Nawab Muhammad Ahmad Khan was the probable consequence of the act abetted in pursuance of the conspiracy. According to Mr. Batalvi, if the conspiracy was to fire at Ahmad Raza Kasuri with automatic weapons and if his father sitting one foot away was killed, it was a probable consequence of the act conspired and not a distinct or unrelated act. The act done was the firing at Ahmad Raza Kasuri and if the missiles missed him and hit the man sitting next to him, it was the probable consequence of the act abetted. He quoted Russel on Crime.(Twelfth Edition Volume 1, page 161) wherein the writer states : “If the principal totally or substantially varies from the terms of the instigation, if being solicited to commit a felony of one kind, he wilfully and knowingly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt But if the principal complies in substance with the instigation of the accessory, varying only in circumstances of time or place, or in the manner of execution, the accessory will be involved in his guilt And where the principal goes beyond the terms of the solicitation, yet if in the events the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony.”
789. He also cited Criminal Pleadings, Evidence and Practice by Archbold (39th Edition, para. 4144, page 1711 that “if the counsellor and procurer orders or advises one crime, an the principal intentionally commits another ; as, for instance, if he was ordered or advised to burn a house, and instead thereof committed theft, the counsellor and procurer would not be liable. If, however, the counsellor and procurer ordered the principal to commit a crime against A, and instead of so doing the principal by mistake committed the same against B, it seems that the counsellor and procurer would be liable.”
790. Mr. Batalvi next cited Corpus Juris Secundum, Vol. XII, 1911 Edition, page 545. While dealing with the question of means in carrying out a conspiracy, the learned author states that it was not necessary that the means or the time of the offence ought to have been agreed upon by the conspirators. When individuals conspired leaving one to execute the conspiracy and let him choose his own means, methods and devices, the conspiracy was complete. The rule was well settled that when separate parties gathered, each was responsible for the acts of the confederates committed in furtherance of the common design and the purpose and the act of one was the act of all. Wherever, these conspirators acted, they continued with their agreement and it was immaterial whether one or two were not even present when the offence was committed. Each was responsible for everything done which followed the execution of the common design, even though some parts were not intended to be parts of the common design. The ordinary and probable effect of the act specifically agreed should have followed so that the connection might reasonably be deduced.
791. Mr. Batalvi submitted that if the attack on the life of Ahmad Raza Kasuri was in the execution of or in pursuance of the conspiracy then his father’s death, who was sitting next to him, was a probable consequence of the original design or plan. Relying on Corpus Juris the learned counsel submitted that he who conspired with others to take human life was expected to know the result of the conspiracy. Such accidents as take place in carrying out the conspiracy should be capable of being reasonably inferred from the act done. In such a situation the instigator was squarely liable. The authors of Corpus Juris have at another place observed that the meaning of probable consequence was to the effect that an abettor or co-conspirator would always be liable for any act which followed incidentally in the execution of the common design even though what was done was not intended as part of the original design or plan.
792. Reverting to section 111, Mr. Batalvi submitted that for the purpose of the application of this section, all that had to be examined was whether the act had been done in pursuance of the conspiracy, and the intention of the person executing the conspiracy was irrelevant and could not be taken into consideration. He referred to section 34 of the P. P. C. which trade one liable for the act of others if the act done was “in furtherance of the common intention”. Similarly, in section 10 of the Evidence Act which deals with a somewhat similar subject, the expression was “in reference to the common intention”. However, in section 111 these phrases had been discarded and the expression used was “in Up suance of the conspiracy”. Therefore, intention was not relevant for purpose of applying sections 111, P. P. C. When it was established that the act done was in pursuance of the conspiracy, it was immaterial whether it was intended or not and it would make the conspirator liable to the same degree. According to him, section 111 would be applicable if the following two conditions were fulfilled;
(1) The actor or the co-conspirator should be acting to pursue the conspiracy and achieve the desired object and if the result of it was different from the object of conspiracy, it should not be unrelated to the act done ; and
(2) The result achieved, i.e. probable consequence should not be a probable consequence of the intention but of the act done in pursuance of the conspiracy.
793. In this connection reference was invited to Queen-Empress v. Mathur a Dos (which was also relied upon by the learned counsel for the appellant) wherein it was, inter alia, observed : to put it in plain terms the law says to a man : “If you choose to run the risk of putting another in motion to do an unlawful act, he, for the time being, represents you as much as he does himself ; and, if, in order to effect the accomplishment of that act, he does another which you may fairly from the circumstances be presumed to have foreseen it would be a probable consequence of your instigation, you are as much responsible for abetting the latter act as the former.”
794. Continuing his arguments Mr. Bataivi submitted that Zulfiqar Ali Bhutto had been charged under sections 302, 301 and 109, P. P. C. The conviction had been recorded under section 302, P. P. C. read with sections 301, 109 and 111, P. P. C. For the purpose of conviction section 111 had been added, but section 109 had not been excluded. He submitted that section 301, P.P.C. dealt with a situation when the intention of the accused was to cause the death of one person but another in his place had been killed. It was a provision of law which dealt with the same situation as section 111 did with the exception that it exclusively applied to murder.
795. Section 301, P. P. C. is in the following terms;
“If a person by doing anything which he intends to or knows to be likely to cause death commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intends or knew himself to be likely to cause.”
The learned counsel submitted that the section looked after a situation in which a mistake crept in and a person who was not intended to be killed was done to death. The punishment was the same as if he had intended to cause his death. He submitted that section 111 dealt with joint responsibility of all the conspirators when the act done and the result achieved were different and pointed out that in such a situation the criterion was to judge if the result was the probable consequence of the act done.
796. The counsel submitted that the two confessing accused Arshad Iqbal and Rana Iftikhar had been convicted under sections 301 and 302, P.P.C. They never had the intention to kill Nawab Mohammad Ahmad Khan but they had been held guilty of culpable homicide amounting to murder. In these circumstances there was no reason to think that these two accused could be convicted thus, but not the person with whose concert the gruesome offence had been committed.
797. The position was all the more clear by I the application of section 109, P. P. C. This section reads;
“Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Code for the punishment of such abetment be punished with the punishment provided for the offence.
Explanation.-An act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation or in pursuance of the conspiracy or with the aid which constitutes abetment.”
798. Mr. Batalvi submitted that these two sections together with section 10 of the Evidence Act, which allowed a certain type of evidence otherwise barred, fell into a set pattern. They were all parts of the scheme of the law which dealt with criminal conspiracy. He submitted that a study of this scheme showed that all conspirators were agents of each other and each one was liable for the acts of the other. If a conspirator set into motion evil forces, he was liable for the offence whether he was present at the place of occurrence or not. Even if the conspirator employed an innocent agent he would be held to be responsible for the offence because the act was the result of the malice of the instigator. If the instigator gave some poison to a child under seven, to whom no criminal liability was attached and he administered it to a person named by the instigator the child was not responsible but the instigator was. According to him, if an illegal act was done in pursuance of a conspiracy all the conspirators were liable. If the conspiracy was for killing a particular person but someone else was killed, section 111 took care of that. It dealt with the responsibility of the man pulling the strings from behind. His plea was that the case was covered by section 111 P. P. C., but in case that section was found to be inadequate sections 301 and 109 fully covered the ground.
799. Learned counsel also relied
on Betts do Ridley v. Rex (1) ; Allan Bainbridge v. The Queen (2) ; Boyd v.
800. So far as the cases relied upon by the learned counsel for the a appellant are concerned, Mr. Bitalvi submitted that most of them were distinguishable, and one of them, which was to some extent similar namely, Po Po Ya v. Emperor (5) ; did not lay down good law. He, there fore, submitted that the High Court had rightly convicted the appellant, inter alia under section 111, P. P. C.
801. Mr. Yahya Bakhtiar, in reply, submitted that the submission of Mr. Batalvi that the expression “probable consequence” in section 111, P. P. C. can be substituted with the expression “incidental to the execution of the design” was not tenable. According to him, Mr. Batalvi’s stress on the point that the test whether the abettor could foresee as a reasonable man the consequences of his abetment is objective and not subjective is not correct, and in this connection he also referred to a passage from Russel on Crime, Twelfth Edition, page 162 to the effect: “Nowadays, is submitted, the test should be subjective and the person charged as accessory should not be held liable for anything but what he either expressly commanded or realised might be involved in the performance of the project agreed upon. It would on this principle, therefore be a question of evidence to satisfy the jury that the accused did contemplate the prospect of what the principal has in fact done, Of course, in considering the evidence, the jury will naturally bear in mind the probability that what the ordinary average man would have foreseen was also foreseen by the accused, and that his present denial, now that he is charged, may be false.” Even on the “objective°” test what has to be judged is to see whether the abettor as a reasonable man could visualize or foresee at the time of abetment the commission of the different act as a result of the commission of the act abetted. As for the cases and textbooks on foreign law quoted by Mr. Batalvi, it was submitted that they did not deal with or define `probable consequence’ as used in section 111. P. P. C. As to English law, it was submitted that there was no provision analogous to section 111, P. P. C. in the Accessory and Abetment Act, 1861 and therefore, quotations from English law were of no assistance. Similarly. Mr. Batalvi had not pointed to any American statute law containing any provision similar to section 111. P. P. C. So far as the cases of Betts & Ridley v. Rex (22 Cr. A. Rep. 148) ; Allan Banbridge v. The Queen (43 Cr. A. Rep. 1514.) ; Boyd v. United States (142 U S 1077) ; were 6oncerned it was contended that these were not relevant as they did not deal with any provision similar to section 111, P. P. C. ; and that even otherwise on their own facts, it is clear that these cases did not relate to the situation where the principal offender had killed a person different than the one intended.
802. So far as the case of Sahib Ditta v. Emperor (20 P R 43) ; is concerned, it was submitted that it was not relevant as the “act done” was not different from the “act abetted” and section 111 was wrongly applied.
803. I am inclined to agree with
Mr. Yahya Bakhtiar that the judgments from the English and American Courts are
not very relevant as the facts therein bear no similarity to the facts of the
present case and that It has also not been shown that they dealt with a
provision similar to section 111 of the Penal Code. Similarly, most of the
cases from the Sub-Continent
relied upon by either of the two since are not apposite, as these cases did not
relate to the situation where the principal offender had killed a person
different from the one intended. The only case dealing with this situation is
Po Ya v. Emperor. The facts of the case were that the appellant Po Ya and
another accused were alleged to have attacked one Lu Pe, a headman of a village
while he was driving a bullock-cart
accompanied by a little boy Po Myit. The appellant had instigated the attack on
Lu Pe who was hit with a stick from behind, but the blow hit him only on the
side of the head and the main force of the blow fell on the head of the little
boy who was either sitting besides or behind him on the cart and the blow
fractured his skull. Po Myit died as a result of the fracture. Lu Pe was also
severely injured. On these facts the: appellant Po Ya was convicted of murder
and sentenced to death. He was also found guilty of an offence under section
326, I.P.C. for causing grievous hart to Lu ;e. In these circumstances the
learned Judges in Loner
804. In my view this judgment does not lay down good law. It is apparent from ,the facts that Po Myit was sitting besides or behind Lu Pe. Therefore, a reasonable man would have foreseen that the attack on Lu Pe might result in the blow being deflected to the person who was sitting beside him. The view taken in this case, moreover, has not been followed in any other case and Mr. Batalvi invited us to reject it, and I agree with him.
805. The only other instance having a similarity to the present case is an illustration quoted by Russell, while dealing with this subject at page 172 (Eleventh Edition), in his work on “Crime”. He observes; “More difficult questions arise where the principal by mistake commits a different crime front that to which he was solicited by the accessory. It has been said that if A commands B to kill C and B by mistake kills D or aiming a blow at C misses him and kills D. A will not be accessory to this murder because the person was different (1 Hale P.C. 617 ; 3 Con. Inst. 51). But as pointed out by Gour, Sir Michael Foster, Animadverts on this view holding that the order was to commit murder and the fact that the wrong person was murdered was no exoneration of the crime. (Foster Cr. L. 372 ; 1 Hawk, P.C. c. 29, s. 22).
806. According to Sir Hari Singh Gour the view of Foster has been adopted in our Penal Code and enacted as illustration (a) in section 111, as opposed to the view of Lord Hale. (See Penal Law of India by Hari Singh Gour, 6th Edition, page 480). Thus, according to Gour, in a case where a person is ordered to kill another and in pursuance of the command he aims at him but by mistake another person is killed, the case fails under the mischief of section 111 as the killing of the person other than commanded can be deemed to be a probable consequence of the order given. I am inclined to agree with this view.
Killing of Kasuri’s father was probable consequence of conspiracy
807. In the present case the conspiracy which constituted the abetment was to murder Ahmad Raza Kasuri. In pursuance of that conspiracy a murderous assault was in fact launched at him with automatic weapons. The bullet missed Kasuri, but his father who was sitting next to him in the car was hit and killed. The act done, namely the murder of Ahmad Raze Kasuri’s father was thus clearly in pursuance of the conspiracy to kill Kasuri.
808. The killing of Ahmad Raza Kasuri was a task assigned by Zulfiqar Ali Bhutto to the FSF which he knew was equipped with sophisticated and automatic weapons. As a man of ordinary common sense and prudence he was also expected to know that bullets fired from rifles and automatic weapons have long ranging killing potential, and if they missed the target could bit and kill another person. Thus, when the conspiracy was to murder Ahmad Raza Kasuri by using the FSF the danger of another person being killed as a result of a bullet fired at Ahmad Raza Kasuri ought to have been visualised as a ‘probable consequence. Limited imagination cannot be pleaded as a defence. For, a person who sets in motion a plan to murder, and his co-conspirators implement the plan and mount a murderous attack on the victim but miss him and kill a person nearby, he is responsible for the acts of his agents committed in furtherance of the conspiracy, because such a result is the probable consequence of the murderous attack. When a man conspires to murder, and in furtherance of the conspiracy an attack with automatic weapons is mounted on the person intended to be murdered, he cannot plead that he could not visualize that the probably consequence would be that a bullet may miss the target and kill another person nearby. No man can say that he did not authorise an act which he could or ought to have foreseen as the probable consequence of his conspiracy. If he did not, he might and ought to have foreseen and is liable to the same extent as if he had foreseen. The death of Kasuri’s father was thus clearly the probable consequence of the murderous attack on Ahmad Raza Kasuri.
809. Relying on Queen-Empress v. Mathura Das and others (6 All. 491) and Harnam Singh v. Emperor (A I R 1919 Lah. 256) Mr. Yahya Bakhtiar contended that, in any case, the act of appellants Arshad Iqbal and Rana Iftikhar Ahmad in firing 30 rounds of ammunition was a reckless act, such as to negative the proposition that the death of Ahmad Raza Kasuri’s father vas a probable consequence of the alleged conspiracy.
810. A perusal of the two judgments relied upon by Mr. Yahya Bakhtiar, shows that both were cases of robbery, during the course of which murder was committed. In the first case, after having laid down the test, namely that;
“The test in these cases must always be whether, having regard to the immediate object of the instigation or conspiracy, the act done by the principal is one which, according to ordinary experience and common sense, the abettor must have foreseen as probable,”
and adding that;
“the determination of this question as to the state of a man’s mind at a particular moment must necessarily always be a matter of serious difficulty, and conclusions should not be framed without the most anxious and careful scrutiny of all the facts,”
learned Chief Justice proceeded to observe that there was no satisfactory material before him from which he could infer that the abettors must have known that excessive violence would be employed such as was likely to result in death or even in bodily injury likely to cause death. It will be seen that the principle laid down in this case is not different from the conclusion reached by me in the preceding paragraphs, but In its application to the facts of that particular case the learned Chief Justice formed the opinion that excessive violence had been used, by the culprits at the spot, which could not have been foreseen by the abettors.
811. Similarly, in the second case having spelt out the same principles, the learned Judges of the Lahore High Court concluded that even assuming that the appellant before them was an abettor, it could not be said that murder was a probable consequence of the abetment to commit robbery. The discussion of the facts in the body of the judgment shows that the learned fudges were not convinced that resort to violence was a probable consequence of the original conspiracy to commit robbery. It may not be possible to agree with the conclusion formed by the learned Judges on the facts of that case, but that is not the question before me. The relevant fact for the present purpose is that in both the cases, the finding of fact recorded by the Court was that the violence resulting in death was uncalled for in relation to the conspiracy in pursuance of which the offence of murder came to be abetted.
812. Now, in the present case, the submission made by Mr. Yahya Bakhtiar, overlooks the basic fact that when sophisticated automatic weapons with tremendous power of rapid firing were to be employed in the execution of the conspiracy, the agents at the spot could not be accused of indulging in recklessness, or use of excessive violence, if they fired 30 rounds in rapid bursts on seeing Ahmad Raza Kasuri’s car approaching the Roundabout, and then negotiating the same on its, forward journey. It has to be remembered that the direction to kill did not contain any restriction that killing was not to be resorted to during the night, or that it should be done during the day, or in any particular manner. Obviously, the actual plan of execution was left to the choice of the concerned assailants, and the law recognises such situation as squarely falling within the ambit of conspiracy. However, one thing I certain that the killing was to be achieved through the personnel of the FSF, so as to utilise their skill together with sophisticated arms and ammunition which were in their use. Whereas on the one hand attack by sophisticated weapons is by itself a measure of some guarantee of achieving a sure and desired result with more certainty, but on the other hind at the same time, their use involves a risk also, and that is that generally firing by sophisticated weapons especially during a dark night and particularly on fleeting targets is done through bursts, and not one stray shot as the target in darkness obviously is not visible clearly. A burst leads to a series of shots which vary from 5 to 30 depending upon the pressure of a trigger and thus projects simultaneous exit of a large number of bullets in a parabolic form covering an area of certain well-known diameter which is called a “beaten-zone” or sometimes as a “danger sphere”., with the result that if a person other than the desired victim is located or falls within that zone he is sure to be hit. This danger is therefore inherent in the deployment of sophisticated weapons during a dark night and is natural and most probable and relevant consequence of their use, just in the same way, as the use of fire involves in it the natural and consequent probability of its spreading beyond expectations. In the example given, it is the fire which expands, whereas, in the case of sophisticated weapons, it is the beaten-zone of the bursts which will expand and vary depending upon the facts relevant for that purpose. To continue with the subject, a person who asks to set the house of another on fire cannot escape the consequent liability if the fire spreads and embraces the adjoining houses also. Nor can a person who directs breach of canal for purpose of destroying by inundation water the house, factory, land or crops, etc. of another escape liability if the escaped water causes similar danger to others also. Similarly if one abets and conspires for an attack on an other by sophisticated arms and ammunition, he cannot escape liability if anybody else also gets hit due to his being within the beaten-zone of those weapons. Giving another example, if 4 person keeps a lion in his house and lets it loose to kill his enemy he cannot escape liability if the lions pounces upon others also. Sophisticated weapons, if one can so say in this context, are no less ferocious than a lion. If you let them loose ask some body to fire with them then you are responsible if they kill all those who come within their range or beaten-zone which naturally extends to a sufficiently wide diameter, and you cannot be heard to say that you desired only one man to be killed by an attack in that manner. It is such a natural and probable consequence which is so evident at the time when direction for use of such weapons is given that a person cannot plead its ignorance.
812-A. It has further to be kept in mind that the burst fired by Arshad Iqbal was only in the nature of a warning, so as to indicate to the other appellant Rana Iftikhar Ahmad that the marked vehicle was approaching the chosen spot. This plan cannot, by any stretch of imagination, be termed as a reckless act. It has further to be noted that although several bullets hit the body of Ahmad Raza Kasuri’s car, yet only one or two bullets hit his father, who was seated next to him on the front seat of the car. In the presence of these facts, it is futile to argue that the actual assailants had indulged in a reckless act, so as to radically depart from the plan of the conspiracy.
813. It is, therefore, clear to me that the killing of Nawab Muhammad Ahmad Khan has been rightly held by the High Court to be a probable consequence of the conspiracy resulting in the murderous attack on Ahmad Raza Kasuri, and also that it was committed in pursuance of this conspiracy.
Section 301, P. P. C. not applicable to certain appellants
814. The High Court has convicted Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa, inter alia, under section 301, P. P. C. I am, however, of the view that the aforesaid section was not attracted in their case, as it applies only to the actual killer and not to the abettor. For the latter the provision applicable appears to be section 1 11 of the P. P. C. This is clear from the wording of section 301 itself, which, so far as relevant says : “If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable ‘homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender if of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause”. This provision, therefore, applies to a person who actually causes the death of another and not to one who is merely an abettor.
815. Generally speaking, it’ is true that an abettor may, in certain circumstances, be also held responsible for the consequences which may result because of his having abetted the offence, but an abettor is not strictly speaking, a person who can be held guilty under section 301, P.P.C. for committing culpable homicide. The legislature appears to have separately provided for the case of actual killer and that of the abettor. So far as the actual killer was concerned, it was considered that if he has caused the death of a person whose death he may neither have intended nor known himself likely to cause, he can still not bed heard to say that he really never intended to do so and that the death of the victim which was actually caused, was never intended by him. In case of a heinous offence such as murder, this defence has not been made available to the killer.
816. The above fiction of law, however, has not been made applicable to the abettor with the same rigidity as applicable to the actually killer. So far as the abettors are concerned, the law has laid down two conditions before they can be held liable for the result achieved which may be different from the one intended by them. A reference to the proviso to section 111 shows that in such a type of case liability of the l abettors will arise if (i) the act done was the probable consequence of their abetment and (ii) was committed under the influence of the instigation or with the aid or in pursuance of the conspiracy which’ constituted abetment. On comparison of this section with section 301,1 P. P. C., it will appear that the abettor’s liability is conditional on fuifilment of the conditions hereinbefore mentioned, whereas the application of section 301 to the actual killer is totally unconditional. That the case of abettors, even in the cases of murder, comes within the mischief of section 111 is evident from illustration (c) appended to the aforesaid section. Thus I am of the view that the persons other than the actual killers, namely, Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Sufi Ghulam Mustafa could not be held guilty under section 301, P. P. C., but were liable to be convicted under section 302, P. P. C. read with sections 109 and 111, P. P. C.
Non framing of Charge under section 111, P. P. C. not material
817. I now turn to the question as to what is the effect of not framing a charge against the appellants Zulfikar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa under section 111, P.P.C., under which they have been convicted. They were charged under section 302, P. P. C. read with sections 109 and 301, P. P. C., but were convicted under section 302 read with section 301, P. P. C. and sections 109 and 111, P. P. C. I have just held that section 301 of the Pakistan Penal Code was not attracted to their case.
818. The learned Special Public Prosecutor, Mr. Ijaz Hussain Batalvi submitted that in view of the provisions of section 237, Cr. P. C., the omission to frame a charge under section 111 against these appellants was of no consequence, because under section 237, Cr. P. C. an accused may be convicted of the offence which he is shown to have committed although he was not charged with it.
919. In reply, Mr. Yahya Bakhtiar submitted that as a general rule a person cannot be convicted of an offence unless he is charged with it, but there are two exceptions enacted in sections 237 and 238, Cr. P. C. Under section 238, Cr. P. C., which is not relevant here, he can be convicted of a minor offence. Section 237, Cr. P. C., the provision of which is presently relevant, is in the following terms :-----
“237.-(1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although ho was not charged with it.”
820. Section 237 is thus controlled by section 236, which is as follows;----
“236. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.”
The learned counsel pointed out that according to this section, it applied only to those cases where “a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute”.
821. Mr. Yahya Bakhtiar contended that in the present case no such doubt existed and in respect of the murder of Muhammad Ahmad Khan the appellant could only be charged under section 111, P. P. C., as it was nobody’s case that there was any conspiracy or abetment to kill Muhammad Ahmad Khan. Consequently, sections 236 and 237 were not applicable to the facts of the case. It was further submitted that the illegality was of such a fundamental character that it was riot curable under sections 535 and 537, Cr. P. C., as in the proceedings before the trial Court the appellant had no notice that he had to meet the ingredients of the offence under section 111, P. P. C., which created a criminal liability distinct from that of the actual perpetrators of the murder, who were directly liable under sections 302 and 301, P. P. C., as also distinct from the liability created by section 109, P. P. C. He argued that on the contrary in the notice given to him in the charge and in the evidence led by the prosecution the appellant Z. A. Bhutto was sought to be made liable only under sections 302, 301 and 109, P. P. C., and not section 111.
822. Relying on a large number of
cases, namely, Emperor v. Isan Mohammad (31 Bom. 218) ; Sinnaswami Chetti v.
Pannadi Palani Goundan (26 Cr. L J 1057) ; Raghu Nath v. Emperor (27 Cr. L J
152) ; Jaffar v. ldris Ali (P L D 1951 Dacca 128) ; In re: Thaikkottahil
Gunheen (25 Cr. L J 212) ; Tamizuddin Master v. Asimuddin (A I R 1946 Cal. 305)
; The State v. Abed Ali (P L D 1963 Dacca 806) ; Nanak Chand v. The State of
(1) That the framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the foundation for a conviction and sentence therefor.
(2) That the absence of a specific and distinct charge in respect of every distinct head of criminal liability is a very serious lacuna in the proceedings.
(3) That the exceptions to the above-said rules are contained in sections 237 and 238, Cr. P. C,
(4) That the section 237 is controlled by section 236 and would apply only in those cases where section 236 applies.
(5) That section 236 only applies to the cases where the act or series of acts is of such a nature that it is doubtful which of the several offences the facts which can be proved will constitute.
(6) That the application of sections 237 and 238, Cr. P. C. as well as sections 535 and 537, Cr. P.C. is subject to the overriding principle that the accused person had notice of the offence for which he is convicted.
(7) That in doing so no prejudice is caused to the accused.
(8) That in case of constructive liability the accused cannot be convicted unless he has notice of it.
(9) That each case depends upon its facts and the relevant question that has to be decided is whether the evidence adduced in support of the charge gave sufficient notice of all the facts which would constitute the offence for which he is convicted.
(l0) That if the offence charged and the offence for which the accused is convicted fall under distinct heads of criminal liability the conviction would be illegal as in such a case the accused cannot be said to have notice of the charge or the circumstances he is called upon to meet and is prejudiced in his defence.
823. In reply, Mr. Batalvi submitted that sections 236, 237 and 238 of the Code of Criminal Procedure empower the Court in certain cases to convict an accused person with respect to an offence even though he was not charged with it. Sections 236 and 237, Cr. P.C. were to be read together, and when there is no difficulty about the facts and it is alleged that the accused has done a single act or series of acts but they are of such a nature that it is doubtful which of several offences the accused has committed on those facts, and i.e is charged with having committed one of such offences, he may be convicted of a different offence. He may be convicted of the offence which he is shown to have committed, although he was not charged with it. The facts have to be set out in the charge with sufficient particularity so that the accused may know what act or acts he is said to have done, and the question remains only one of law as to what offence the act or acts constitute. 1u this case the accused was given sufficient notice of the facts constituting the offence. All the relevant facts which were later proved through evidence were contained in the charge. The trial Bench on the basis of the facts came to the conclusion that alongwith section 301/302 read with section 109, section 111 was also applicable. The basic requirement of law to come within the purview of sections 236 and 237, Cr. P. C. in this case was fulfilled. The accused were convicted on the basis of proved facts of which they also had due notice through the charge as framed. In support of these submissions the following cases were relied upon;----
(1) King v. Charles John Walker A I R 1924 Bom, 450.
(2) Begu v. Emperor A I R 1925 P C 130,
(3) Mohammad Anwar v. State P L D 1956 S C (Pak.) 440.
(4) Ahmad Ali v. State P L D 1960
(5) Amir Bakhsh v.
(6) Fateh Muhammad v. State P L D 1961 Lab. 212.
(7) State v. Muhammad Latif P L D 1962 Kar. 756.
(8) State v. Abed Ali P L D 1963
(9) Muhammad Yaqub v. State 1971 S C M R 756.
824. If may observe that the law on the subject has been laid down with sufficient clarity both by the Privy Council and this Court. In Degu v: Emperor (AIR 1925 P C 130) ; the appellants were convicted under section 201, P. P. C., although they had not been charged under that section and were only charged under section 302 P.P.C. On appeal to the High Court the convictions and sentences of the appellants were affirmed. On appeal to the Privy Council, the point was raised that in the circumstances of the case the conviction of the appellants under section 201 was bad in law. Viscount Halden, J., delivering the judgment for the Board, after reproducing the provisions of sections 236 and 237, at page 131 observed;
“The illustration makes the meaning of these words quite plain. A than may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here. The three men who were sentenced to rigorous imprisonment, were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally but they were tried on evidence which brings the case under section 237. Their Lordships entertained no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure.”
825. This judgment was followed by this Court in Mohammad Yaqub v. State (1971 S C M R 756). An extensive discussion on this point has been made by this Court in the earlier case of Muhammad Anwar v. State (P L D1956 S C (Pak.) 440). In this case the ratio of Suraj Pal v. State of Uttar Pradesh (P L D 1956 S C (Ind.) 21) ; was distinguished and the applicability of sections 236 and 237, Cr.P.C. discussed arid the conclusion expressed as follows :-
“Without wishing in any way to minimize the importance of precision in the framing of charges, so that the accused persons may be apprised, at the earliest stage, of the case which they are required to meet we consider that the suggestion that accused persons in cases like the present carry in the forefront of their minds throughout their trial, the precise terms of the charges framed against them, and in presenting their defence, are guided by their conception of the nature of the charge try the exclusion of the evidence which is presented to the Court, is altogether too fanciful and remote from reality to be worthy of acceptance. As has been seen, the case was of such a nature as to be precisely within the terms of sections 236 and 237, Cr. P. C. Consequently there was no irregularity committed, the prejudicial effect of which we might have felt it necessary to estimate.”
826. The survey of the cases shows that the law, as embodied in sections 236 and 23l of the Criminal Procedure Code read together;; appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute, and on the facts eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charge has been committed, then he may be convicted of this otter offence; even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man may, be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.
827. The question next arises whether the provision of sections 236 and 237, Cr. P. C. arc attracted to the circumstances of this case. The question whether the abettors in the circumstances of this case could not be convicted under section 302, P. P. C. for the murder of Nawab Muhammad Ahmad Khan by recourse to the provisions of sections 301 and 109, P. P. C. is not free from doubt. It is possible to argue that section 301 i5 a special provision covering cases of murder and, therefore, displaces section 111, which is a general provision, According to the special provision the actual perpetrator is made liable for the murder if he kills a person different from the one he intended to kilt, and that on account of this fiction enacted under section 301, P. P. C., the abetment contemplated under section 109, f’. P. C., can be deemed to be an abetment of the act of the actual perpetrator, even when he kills a person different from the one originally intended. On these premises, in such circumstances, a charge could conceivably be laid under section 302 read with sections 301 and 109, P. P. C. I have however, found that it is not possible to have recourse to the double fiction alluded to above and that the case of the abettors, is covered by section 111, P. P. C., while section 301, P. P. C, applies only to the actual killer. In any event, this was a case where it was doubtful which of several offences the facts which can be proved will constitute and hence fell within the purview of section 236, Cr. P. C. Being a case falling within the contemplation of section 236, Cr. P. C. the appellants could be convicted of the offence which was shown have been committed although not charged with it under section 217, Cr. P. C. However, the facts have to be set out in the charge with sufficient particularity so that the accused may know what act or act he is said to have done, so that the question that remains is one of law, namely, as to what offence the act or acts constitute.
828. A perusal of the charge shows that it is framed under three heads of which the first two are relevant bore. The first charge is in the following terms :---
“Firstly, that you, some time in the middle of 1974, conspired with Masood Mahmood approver countenancing the murder of Ahmad Raza Kasuri, then a member of the National Assembly, through the agency of the Federal Security Force, and thereby committed an offence punishable under section 120-B of the Pakistan Penal Code, and within the cognizance of the Lahore High Court, Lahore”.
According to the first charge the accused is informed that,---
(i) He conspired with Masood Mahmood;
(ii) countenancing the murder of Ahmad Raza Kasuri;
(iii) through the agency of the Federal Security Force; and
(iv) thus committed an offence punishable under section 120-B, P. P. C.
829. The definition of the criminal conspiracy given in section 120-A is that “when two or more persons agree to do, or cause to be done an illegal act ...such an agreement is designated a criminal conspiracy.” Section 120-B, which deals with punishment of criminal conspiracy, then lays down that “Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence “
830. Thus the allegations set out above bring home to the accused the factual foundation for the said charge, and also bring to his attention the provision (S. 120-B) relevant to its punishment. He is further notified of the criminal conspiracy entered into between him and Masood Mahmood approver for murdering Ahmad Raza Kasuri through the agency of the FSF The words “through the agency of FSF” are sufficiently comprehensive so as to include the personnel of the FSF, and the weapons as well as the ammunition employed by the said force.
831. The second head of the charge states that “that in pursuance of the aforesaid criminal conspiracy and in pursuance of directions given by Masood Mahmood approver at your behest to Mian Muhammad Abbas, co-accused, an attack with automatic weapons was organized by Ghulam Hussain approver, in the course of which Ghulam Hussain approver, Arshad Iqbal and Rana Iftikhar Ahmad co-accused, all of the Federal Security Force, fired on the night between the 10th and 11th November, 1974, at the Shadman-Shah Jamal Colony Roundabout, Lahore, at the car of the aforementioned Ahmad Raza Kasuti which was occupied at that time by him, his father Nawab Muhammad Ahmad Khan and two ladies resulting in the murder of Nawab Muhammad Ahmad Khan ...and an offence under section 302, P.P.C. was committed in consequence of your aiding and abetment and you have thereby committed an offence punishable under section 302, P. P. C. read with sections 109 and 301 of the Penal Code.”
832. A reading of the above shows that the accusations made in this charge have been set out in the form of separate allegations and that all the ingredients necessary to bring home the charge of murder punishable under section 302 read with sections 109 and 111, P. P. C. have been brought to the notice of the accused. He has, for instance, begin told that he was the originator of the criminal conspiracy for the murder of Ahmad Raza Kasuri; that it was in pursuance of the said conspiracy and in pursuance of the directions given by Masood Mahmood at his behest to Mian Muhammad Abbas that an attack was organised with automatic weapons through Ghulam Hussain approver, in the course of which the co-conspirators fired at the car of Ahmad Raze Kasuri (the details of its occupants have been duly mentioned in the charge). The accused was further informed that the said attack resulted in the murder of Nawab Muhammad Ahmad Khan, which offence was in consequence of your aiding and abetment.”
833. In view of the mention of all these allegations to argue that the accused was not told, or that he was not charged with a specific allegation that the murder was the “probable consequence” of his aiding and abetment and he was also liable under section 111, P. P. C. is mis-conceived. The charge clearly sets out the relevant facts for attracting the provisions of section 111, P. P. C. namely, that the man sought to be killed (Ahmad Raza Kasuri) was attacked in pursuance of the cons piracy in that behalf but a different man was actually killed (Nawab Muhammad Ahmad Khan), and attributes the death of the latter to be a consequence of the conspiracy to get the former (Ahmad Raza Kasuri killed by the use of automatic weapons.
834. Thus the accused was given sufficient notice of the facts constituting the offence. The facts were set out in the charge with sufficient particularity so that the accused could know what act or acts he was said to have done, and the only question that remained was one of law namely, as to what offence the said act or acts constituted. It has beet observed that the true test is whether the facts are such as to give the accused notice of the offence for which he is going to be convicted thought he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge. Thus the conviction of the appellant under section 111, P. P. C. in the absence of a specific charge in that behalf is not open to any objection.
Section 227 of the Criminal Procedure Code not applicable
835. The last objection taken by Mr. Yahya Bakhtiar to the conviction, under section 111, P. P. C. of Zulfikar Ali Bhutto was that section 111, P. P. C. was merely added at the time of writing the judgment. It was submitted that in doing so an illegality was committed which vitiated the trial. Attention was drawn to section 227, Cr. P. C which reads as follows :----
“(1) Any Court may alter or add to any charge at any time before judgment is pronounced, or, in the case of trials before the Court of Session or High Court, before the verdict of the jur3 is returned or the opinions of-the assessors are expressed.
(2) Every such alteration or addition shall be read and explained to the accused.”
836. Under section 231, Cr. P. C it was pointed out, the accused in such a case has a right to ask for the recall of all the prosecution witnesses and can cross-examine them. Since the trial Bench, while adding the charge under section 111, P. P. C. did not consider that the provisions of section 227 (2), Cr. P. C. were mandatory and had to be complied with; the trial, therefore, became illegal. In support of this submission, attention was drawn to a judgment of the Allahabad High Court reported as Ranghunath v. Emperor (27 Cr. L J 152) wherein it was observed :--
“Section 227 of the Cr. P. C.
deals with alteration of a charge but it requires that the alteration shall be
read and explained to the accused. The accused must know what he is charged
with and what offence he has to answer. Section 237 of the Cr. P. C. must be
read with section 227 of that Code.
837. I find that, in the first place, this case, is distinguishable on the short ground that it was not at ail a case falling under section 237 of the Code, as in the same judgment, after the passage reproduced above and relied upon by Mr. Yahya Bakhtiar, it is stated :--
“Then again section 237 applies only to cases mentioned in section 236, Cr. P.C. which deals with cases in which an act is of such a nature that it is doubtful which of several offences the facts will constitute. In the present case it was not doubtful whether an offence under section 34 of the Police Act or under section M of the Indian Penal Code was committed. In my opinion, section 237 cannot apply to this case and even if it can be said to apply, the accused must be told what he is charged with. It is not just to convict a man without telling him his offence.”
838. Thus the ratio of the case appears to be that section 237, Cr. P. C. was not applicable, and further that sufficient particulars of the charge were not provided so as to give notice to the accused of the offence for which he was ultimately convicted. Thus the judgment relied upon by Mr. Yahya Bakhtiar is not an authority for the proposition that a person cannot be convicted for an offence which is not included in the original charge ; in fact it does not relate to section 237, Cr. P. C.
839. In the second place, the observation made by the learned Judge regarding the application of section 227 of the Code to a case falling under section 237 thereof, besides being in the nature of an obiter, is contrary to the express provisions of the statement, and also the clear enunciation of the law by the Privy Council as well as by this Court in the cases mentioned above. This case must, therefore, be read as being confined only to its own peculiar facts.
CONCLUSIONS AS TO APPLICABILITY OF SECTIONS 1 l I AND 301, P. P. C.
840. For the foregoing reasons, I am of the view that on the facts proved in this case, section 301 of the Penal Code was applicable only in the cases of appellants Arshad Iqbal and Rana Iftikhar, but not in the cases of appellants ‘Lulfikar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa. Their cases were covered by section 111 of the Penal Code, and they could be convicted under this section even if they had not been specifically charged thereunder, in view of the enabling provisions contained in section 237 of the Criminal Procedure Code read with section 236 thereof. All the essential and relevant facts constituting the offence made punishable under section 11 t, P. P. C. as the probable consequence of the conspiracy, were fully set out in the charges read out to these appellants at the commencement of the trial, and later brought out in evidence led by the prosecution. In the circumstances, the determination of the correct provision of the Penal Code applicable to their cases was primarily a question of the application of the law to the proved facts. The High Court did not, therefore, act illegally in recording a conviction under this section,
Applications of bias against the Trial Bench
841. I am now left to deal with the last remaining contention pressed before us by Mr. Yahya Bakhtiar, learned senior counsel for Zulfiqar Ali Bhutto appellant, that this entire trial stands vitiated for the reason that the learned presiding Judge of the trial Bench, namely, Mr. Justice Mushtaq Hussain was biased against the appellant, and that the trial was not conducted fairly inasmuch as the evidence was not recorded faithfully in accordance with the deposition of the witnesses, objections raised by the defence were frequently not recorded, and more often illegally overruled ; and that as a result of the cumulative effect of such prejudicial orders the appellant was compelled to boycott the trial from the 10th of January, 1978 onward as a measure of protest.
842. It is indeed a most painful and delicate part of this case in which the learned Acting Chief Justice of the High Court who headed the trial Bench was accused of bias and prejudice against the appellant in the course of this trial. I have therefore, devoted my most anxious considerations to it.
843. To begin with, it shall be helpful to briefly narrate a few facts relevant to this part of the case. On the 5th of July 1977 the Martial Law was imposed in the country with the fall of Bhutto’s regime at the time, and a new administrative set up was established for the governance of the country under the Chief Martial Law Administrator. In that connection on the 6th of July 1977 Mr. Justice Aslam Riaz Hussain, the then Chief Justice of the Lahore High Court was appointed as the Acting Governor of the Province and in his place on the 13th of July 1977 Mr. Justice Mushtaq Hussain, senior puisne Judge of the Court was appointed as its Acting Chief Justice. Afterwards on the 16th of July 1977 he was also appointed as the Chief Election Commissioner, in the then existing vacancy, for the purposes of holding the impending elections to the National and Provincial Assemblies in the country.
844. On 28th of July 1977, Mr. Justice Mushtaq Hussain in his capacity as the Chief Election Commissioner held a televised Press Conference and announced revised Election Rules to ensure free and impartial elections. In that connection he also made some observations against the March 1977 general elections held in the past in the country under the previous regime. This evoked an immediate reaction from the Pakistan People’s Party and on 3rd August 1977 the Central Executive of the Party under the Chairmanship of the appellant passed a resolution which was also released to the Press.
845. On the 270 of July 1977, Mr.
Ahmad Raza Kasuri had filed a private complaint under section 302/307/34 read
with sections 120-A,
109, lU2-B, P. P. C.
against Zulfiqar Ali Bhutto and three others in the Court of local Magistrate
at
846. In the meantime the
investigation into this case on the basis of the F. I. R. dated 11th of
November 1974 was also revived and Zulfiqar Ali Bhutto appellant was arrested
from his residence in
847. On the 13th of September 1977 Mr. Justice K. M. A. Samdani sitting singly allowed bail to the appellant in the challan case, observing, however, that the bail could be cancelled in the light of any fresh material being made available to connect him with the crime. On that same day on 13th September 1977 Mr. Justice Mushtaq Hussain , the Acting Chief Justice of the Lahore High Court, on an application made by the State through the Special Public Prosecutor a day earlier ordered the transfer of the challan case for disposal on the original side of the High Court and constituted a Bench of five Judges, headed by himself for the purpose. The accused were summoned in the case for 24th September 1977. In the meantime on 18th September 1977 the learned Judges of the Division Bench who had earlier taken cognizance of the private complaint of Ahmad Raza Kasuri passed an order directing that the same may also be placed before the Full Bench trying the challan case.
848. On the 20th of September 1977, an application was made on behalf of the State in the High Court for the cancellation of the bail already granted to the appellant by Mr. Justice K. M. A. Samdani, in which a notice was issued to Zulfiqar Ali Bhutto appellant. It was served on him in Karachi Jail wherein he had been detained from the 17th of September 1977 under Martial Law Order No. 12.
849. On the 21st of September 1977 the appellant filed a petition for special leave to appeal bearing No. 84-R of 1977 in the Supreme Court at Lahore against the order of the Acting Chief Justice dated the 13th of September 1977 transferring the challan case from the Sessions Court to the original side of the High Court on a number of grounds. But it was dismissed by this Court on the 24th of September 1977, with the observation that in the first instance all the objections may be raised before the High Court.
850. Accordingly, on 4th October 1977 Zulfiqar Ali Bhutto filed two petitions in the High Court, viz. Cr. Misc. No. 932-M of 1977 questioning the very constitution of the High Court and the validity of the appointment of the Acting Chief Justice ; and Cr. Misc. No. 93.3-M of 1977 attributing personal bias to him. But both these petitions were dismissed by the trial Bench of the High Court by a consolidated order passed on 9th of October 1977. This order gave rise to a Petition for Special Leave to Appeal No. 281 of 1977 against it to this Court. But at the hearing on the 13th of November 1977, after considerable discussion at the bar, Mr. Yahya Bakhtiar, learned counsel for appellant stated that he would like to withdraw the petition for special leave to appeal in so far as it was based on the allegations of bias in the learned Acting Chief Justice arising out of his Misc. Petition No. 933-M of 1977 by reserving his right to suitably raise these and any other plea of prejudice caused to the appellant, afterwards in appeal from the final judgment of the High Court, or at any earlier stage of the trial, if necessary. In view of this statement the 1’eiitiui, was dismissed to aic extent of the impugned order arising cut of the aforesaid Misc.petition. Leave was however, granted to the ptrtitioner against the impugned order arising out of Cr. Mist. No. 932-N4 of 1977 against the very constitution of the High Court and the legality of the appointment of Mr. Justice Mushtaq Hussain as the Acting Chief Justice. But after hearing the parties this appeal was also dismissed by a Beoh consisting of five Judges of this Court on the 8th of December 1977.
851. In the meantime 1lth of October 1977, the trial of the accused in this case before: the Bench consisting of the five learned Judges of the Lahtara High Court headed by its Acting Chief Justice was commenced. On the 5th of November 1977, 7ulfiqar Ali Bhutto filed a miscellaneous application before the trial Bench objecting to an interview granted to Mr. Mark Tully and another foreign correspondent by the Acting Chief Justice. Its report appeared in The Pakistan Times of November 2, 1977 and was also broadcast by the B. B. C. on the basis of despatch sent by Mark Tully.
852. On 18th December 1977
Zulfikar Ali Bhutto moved yet another application (Cr. Mist. No. 7-M of 1978) under section
561-A, Cr. P. C. for
transfer of the case for trial by another Bench, or Judge preferably the Sessions
Judge,
853.In this court before us the allegation concerning bias and prejudice in the learned Actig Chier justice of the High Court are mostly based on what was incorporated in the aforementioned transfer petition dated 18th December 1977 (Cr . Misc No. 7 m of 1978) which was dismissed in lmine by the learned trial Bench en 9th January 1978 Mr Yahya Bakhtiar learned council for the appellant dwelt at great length before us in support of his contentions in this behalf, and submitted that the trial of the appellant was vitiated by the alleged bias and prejudice exhibited by the trial bench headed by the learned Acting Chief Justice. In order to supplement his arguments also field three more charts incorporation some further instances of the alleged bias and prejudice borne on the record of this case.
854. All these allegations were
strongly refuted by the learned Special Public Prosecutor on behalf of the
State. He submitted that they were altogether misconceived and ill.-founded. According to him,
the learned Acting Chief Justice of the
He laid stress to contend that out of the trial Bench consisting of the five learned Judges these allegations were almost exclusively confined against the learned Acting Chief Justice only. The other four learned Judges constituting the Bench were independent and capable enough to deliver their own impartial judgment in the case, free from any bias and prejudice. It could not therefore, be held that the judgment under appeal delivered by the learned trial Bench was tainted. He submitted that right from the beginning of the trial these allegations were made with the ulterior design to make a mockery of the trial in slanderous abuse of the law, and to shake public confidence in the judiciary and must therefore, be rejected with contempt:
855. Let me therefore first briefly deal with the allegations contained in the aforementioned transfer petition (Cr. Miss. No. 7-M of 1978), one by one in the background of the facts before us. It is an unusually lengthy application, running into 53 typed pages comprising 31 paragraphs containing allegations of bias, partiality and prejudice of the learned Acting Chief Justice against Zulfiqar Ali Bhutto appellant. Its first 18 paragraphs are mostly a repetition of the allegations contained in the three earlier petitions (Cr. Miss. No. 932-M and 933-M of 1977 and the petition dated 5th of November 1977) made by the appellant before the trial Bench relating to some of the incidents that took place in Court during the course of the hearing. These are followed by a lengthy paragraph 19, divided into a number of sub-paragraphs and clauses containing instances about the alleged “Remarks against the petitioner”. “Insulting treatment to the Defence Counsel” and “Incorrect Record of Proceedings”. In the succeeding paragraphs are recorded some further incidents that had happened in Court in support of the allegations.
856. To begin with, in the petition, emphasis was laid on a resolution passed by the Central Executive of the Pakistan People’s Party under the chairmanship of the appellant on 3rd August 1977 against Mr. Justice Mushtaq Hussain, the Chief Election Commissioner. The necessary facts in this connection briefly are that on 28th July 1977, Mr. Justice Mushtaq Hussain, in his capacity as the Chief Election Commissioner, held a purposes Press Conference announcing the revised rules framed for the purposes of ensuring fair, free and impartial elections for the coming National and Provincial Assemblies under him in the country. In that connection he also stated that in the past : “Democracy bad not been given a chance and the electoral process so abused as to completes~ frustrate its objectives. He gave several examples how in the March elections those who wished to contest had been prevented from doing sir by force or fraud while genuine votes were nullified by bogus votes or by outright theft of ballot boxes.” On this on 2nd August 1977 the Central Executive Committee of the Pakistan People’s Party at its meeting held under the chairmanship of Zulfiqar Ali Bhutto appellant expressed the opinion that the Chief Election Commissioner was prejudiced and partial against the Party, and in its statement issued to the Press alleged that combining the office of the Chief Election Commissioner with that oaf the Chief Justice of the largest High Court in the country was a travesty of justice, and that the Chief Election Commissioner who was superseded by the People’s Party Government has already betrayed his bias and prejudice against the Party in his recent television Press Conference, and had made irrelevant, fortuitous and baseless remarks against it and thereby shown his partisan attitude. In that connection on 5th August 1977 the Election Commission of Pakistan issued 4 Press note repudiating these allegations, and remarked that the observations by the Chief Election Commissioner were supported by the records of the, Commission. The Commission however, decided to ignore the allegations as it had no intention to enter upon any controversy in this behalf.
857. In this connection it may be mentioned that a Full Bench of five Judges of this Court has already authoritatively held in Criminal Appeal No. 109 of 1977, decided on 8th December 1977, Re : Zulfikar Ali Bhutto v. The State (PLD1978SC40) that the appointment of Mr. Justice Mushtaq Hussain as the Acting Chief Justice of the Lahore High Court in the vacancy was validly made, and that in the circumstances of the case there was also no bar in the way of his further appointment as the Chief Election Commissioner. It is a matter of recent history that the announcement of the results of the last general elections to the National Assembly held in March 1977 under the regime of Zulfikar Ali Bhutto appellant gave- rise to large scale and country-wide agitation against the allegedly massive rigging of the elections against the mandate of the Constitution. This ultimately led to the downfall of tine previous regime and the imposition of the Martial Law in the country on 5th July 1977. These allegations of massive riggings in the elections had its echoes also in the historic case of Begum Nusrat Bhutto v. Chief of the Army Staff (PLD1977SC657Atpp.695to698) against the imposition of Martial Law in the country, in the Supreme Court decided on 10th November 1977 which presents a dismal reading about the conduct of these elections and their results. The findings in the case were based on the information received from the records of the then Chief Election Commissioner, Mr. Justice Sajjad Ahmad Jan, a retired Judge of the Supreme Court, his judgments announced in some of the individual cases setting aside the elections of the important functionaries of the then Government, and the Press reports at the time. In these circumstances, there is hardly any doubt left in my mind that Mr. Justice Mushtaq Hussain, in his capacity as the Chief Election Commissioner in his televised Press Conference held on 28th July 1977 was merely speaking from the records of the Election Commission of Pakistan as was also pointed out in the Press note issued by the Election Commission on 5th August 1977. I have therefore, no hesitation in finding that his observations at the time were based on facts borne on the record of the Commission and did not betray any bias in him. This allegation against him was therefore, altogether unjustified. At any rate, then was nothing against the appellant personally in the televised Pre” Conference.
858. It is also mentioned in the resolution of the Central Executive Committee of the People’s Party, and it was often repeated before the trial Bench as well as in this Court, that Mr. Justice Mushtaq Hussain, who was the senior paisne Judge of the, Lahore High Court, was superseded at the time oft he appointment of the Chief Justice of that Court by Zulfikar Ali Bhutto’s Government in the vacancy arising on the retirement of Mr. Justice Sardar Muhammad Iqbal as the Chief Justice in October 1976, he, therefore, entertained a grievance against him. But this contention is evidently misconceived. It may be that ordinarily supersession amongst the Judges in such matters is not well received by the public and the Judges alike. The hard fact, however, rains that the office of the Chief Justice of the High Court is not available to any one as a matter of right by seniority. Howsoever one may not like it, nonetheless it is just incident of the service. But it cannot be that an incumbent who was superseded starts cultivating bias and prejudice against his employer merely for that reason. At any rate such a thing can never enter the mind of the Judges, much less influence them in their task in the administration of even-handed justice under all circumstances. In the instant case Mr. Justice Mushtaq Hussain, along with seen other learned Judges, was superseded on that occasion at the time of the appointment of the Chief Justice and he was not the only one singled out. In spite of this none of them had resigned for that reason and they all continued in service. Afterwards he was even sent abroad during Bhutto’s regime on an assignment with the international conference held in connection with the Humanitarian Laws.
859. In this connection it is also noteworthy that actually in the resolution of the Central Executive Committee of the Pakistan People’s Party in question at which the appellant presided, it was alleged that the Chief Election Commissioner (Mr. Justice Mushtaq Hussain) who was superseded by the People’s Party Government had already betrayed his “bias and prejudice against the party” in his recent television Press Conference and had made irrelevant, fortuitous and baseless remarks against it and thereby shown his partisan attitude. In this all that was alleged was that he was biased and prejudiced against the Pakistan People’s Party as such because of his supersession during the People’s Party Government. Even in the Criminal Petition for Special Leave to Appeal No. 84-R of 1977 filed in this Court, at the earliest, on 21st September 1977, by the appellant before the commencement of the trial, it was merely alleged that in view of this resolution passed by the Central Executive Committee of the party under the chairmanship of the appellant, judicial propriety demanded that he should not have constituted the Full Bench to be presided over by him or withdrawn the private complaint in this case from the Division Bench already seized of the matter.. Strictly speaking, neither in the aforementioned resolution nor even in the petition for special leave it was even alleged that because of this supersession the learned Acting Chief Justice was biased and prejudiced against the appellant personally. I am, therefore, of the opinion that this contention has no force and there could be no legitimate and genuine apprehension in the mind of the appellant on this account.
860. In the transfer petition a grievance was also made about the order dated 13th September 1977 passed by the learned Acting Chief Justice whereby he had transferred this case to the High Court on its original side without notice to the accused and constituted a Full Bench of five Judges headed by himself for its disposal, while the private complaint filed by Ahmad Raza Kasuri was pending before another Division Bench of the Court. In this connection it is necessary to make a mention of few additional facts.
On the 27th of July 1977, Mian
Iftikhar Ahmad Tari, ex-M.
P. A. and once a Provincial Minister in Bhutto’s regime bad filed a private
complaint against Zulfikar Ali Bhutto and 19 others under sections 120-B, 119, 193, 194, 201, 202,
203, 323, 342, 345, 363, 365, 504 and 506 read with section 109, P. P. C., in
the Court of Ilaqa Magistrate at
861. Afterwards, the police also
filed an incomplete challan in this case before a Magistrate at
862. In this connection in disposing of the aforementioned Criminal Petition for Special Leave to Appeal No. 84-R of 1977, this Court had provisionally observed that as to the grievance that the challan case could not have been transferred by the High Court for trial on its original side without notice to appellant, subsection (3) of section 526, Criminal Procedure Code does vest in the High Court the power to act in this behalf either on the report of the lower Court or on the application of a party interested, or on its own initiative ; but the specific requirement of notice, as contained in subsection (6) of the section, refers only to the case when application for transfer is made by the accused person.
863. Thereafter, the appellant filed the Criminal Miscellaneous Petition No. 933-M of 1977 in the High Court-; inter alia, reiterating his grievances in this behalf, which was dismissed in limine on 9th October 1977. It was held that the transfer of the case was rightly made without notice under section 526, Criminal Procedure Code. This order gave rise to the Criminal Petition for Special Leave to Appeal No. 281 of 1977 filed in this Court by the appellant. But after a considerable discussion at the Bar, Mr. Yahya Bakhtiar stated that he would like to withdraw the petition for special leave to appeal in 3o far as it related to the allegation of bias on the part of the learned Acting Chief Justice as contained in appellant’s Misc. Petition No. 933-M of 1977, reserving his right to raise all these and any other points that may arise, causing prejudice to the petitioner, at the time of the appeal, if any, against the final judgment of the High Court ; or at any earlier stage of the trial, if so advised.
864. It appears that this part of
the case concerning the validity of the order dated 13th September 1977
transferring the challan case to the High Court and constituting the Full Bench
for its disposal was not pressed at the hearing before this Court in the second
round of the litigation nor was any great emphasis laid on it before us during
the arguments now. Anyhow I find no force in this contention. As mentioned above
the three successive complaints filed against Zulfiqar Ali Bhutto and others
had been transferred by Shafi-ur-Rehman, J. without notice
on the grounds that considering the nature of allegations made and the
personalities involved they were fit cases for trial on the original side of
the High Court and a Division Bench nominated to deal with them as they were “exceptional
on facts as well as in law”. These considerations, if I may say so, were
applicable with greater force to the present case as well. In this connection I
am of the considered view, in keeping with our tentative opinion expressed in
the order of this Court dated 24th September 1977 while dismissing the Criminal
Petition for Special Leave to Appeal No. 84-R of 1977 in this case, that subsection (3) read with
subsection (6) of section 526, Criminal Procedure Code, permits the High Court
to transfer, on its own initiative, a criminal case from one subordinate Court
to another or to itself, in its administrative capacity, requiring no notice to
the parties. In the circumstances learned Acting Chief Justice, in his
discretion had the lawful authority and was justified in transferring the
challan case to the High Court without notice. There was no legal bar in
ordering the transfer on 13th September 1977 when only the interim challan had
yet been filed and produced before the Local Magistrate. There could have been
no mala fide intention on the part of the Acting Chief Justice in constituting
the Full Bench of five learned Judges headed by him to try this case in view of
its great national importance and complicated nature. It is usual for the Chief
to head the Benches constituted to hear important cases of national importance.
It was for the same reasons that this appeal has been heard by the
865. In this case in innuendo it was also suggested in the trial Court that it was only after the appellant had been allowed bail by K. M. A. Samdani, J. on 13th September 1977, that learned Acting Chief Justice had hastened to withdraw the challan case from the lower Court. transferred it to the High Court and constituted the Full Bench with himself at its head immediately on 13th September 1977. But the contention was adequately repelled by the learned trial Bench in its’ order dated 9th October 1977. Actually, the State had applied to the High Court for the transfer of the challan case on 12th September 1977. On this the learned Acting Chief Justice had passed the order for the transfer of the case in the early hours of the day’s work on 13th September 1977, while the order allowing bail to the appellant was passed afterwards by K. M. A, Samdani, J. a few minutes before the recess Which started at 10-30 a.m. It was presumably for this reason that this precise plea was not afterwards raised in the Cr. Misc. No. 7-M of 1978 before the High Court.
866. It was next alleged by the appellant in his transfer petition (Cr. Mix. No. 7-M of 1978) that at the first hearing of this case on 24th September 1977 the appellant had requested for three weeks adjournment. The Bench however, adjourned the case for 7 days, as required by law assuring him that further adjournment would be considered if needed by his counsel. On this the learned junior counsel for the appellant (Mr. Aftab Gul, Advocate) intervened, requested for more time and stated that “even after Mr. Bhutto had made a request for adjournment of the case for three weaks, this Court had granted a shorter adjournment”. When he was asked by the Court to explain as to what did he mean by it, the appellant rose, put his learned counsel aside and stated that : “I have the fullest confidence in your Lordship” and the matter ended there. But, afterwards after this news item had come in the Press the appellant appeared in Court and raised an objection and he tried to explain that at the previous hearing, the Court had taken amiss the intervention made by Mr. Aftab Gul, Advocate and the question pertained only to fixing the next date of hearing of the challan case, about which he had expressed his satisfaction and confidence in that limited context and not fullest confidence generally in the Bench”. He added that it was inconceivable for him to have specifically instructed his counsel to move the Supreme Court against the prejudice and partiality of Mr. Justice Mushtaq Hussain and yet on the same day and at abut the same time expressed his fullest confidence in the Bench presided over by him. But the trial Bench in rejecting the explanation in its order dated 9th October 1977 observed that “this explanation is not worthy of any credence.”
867. This order dated 24th September 1977 was actually passed in the presence of the appellant and his learned counsel and there does not appear to be any ambiguity about it. The Criminal Petition for Special Leave to Appeal No. 84-R of 1977 against the order dated 13th September 1977 passed by the learned Acting Chief Justice had been filed in this Court on 21st September 1977. After hearing it on 24th September 1977 it was dismissed as withdrawn with the observation that the contentions, may in the first instance, be raised before the Bench in the High Court itself. At the time the appellant did not personally appear in the Supreme Court. He was, however, personally present before the High Court on 24th September 1977 when he had voluntarily made the statement reproduced above with full awareness. It is not his case that this statement was not correctly recorded by the High Court, although afterwards he took up the stand that on 24th September 1977 he had expressed his satisfaction and confidence in the Court in a limited context implying thereby that he was satisfied with the seven days’ adjournment on the assurance of the Court that if needed, a further adjournment would be granted. The learned trial Bench has rejected this explanation and is not possible to hold otherwise in the circumstances.
868. This brings me to another incident which took place in the course of the hearing of this case before the trial Bench on 8th October 1977. It was alleged by the appellant that while Mr. Cshulam All Memon, learned counsel for him was arguing Cr. Misc. No. 932-M of 1977, the appellant rose on two or three occasions to intervene on certain points. On each occasion he was categorically assured that he would be given ample opportunity to address the Court after the conclusion of the submissions made by his learned counsel and that the learned Acting Chief Justice had even promised that he would be free to make his submission for “hours and hours”. However, at the conclusion of the arguments by his learned counsel on 8th October 1977, before the appellant could rise to make his submission as promised to him, the learned Acting Chief Justice, to his utter surprise observed that he could not be permitted to address the Court but, if he wanted, he could submit his views in writing, for which the services of a Stenographer were made available to him. But he politely refused to avail of the offer made by the Court to make his submissions in writing and brought this fact on the record by filing a note to the effect in Court on the same day.
869. In this connection the learned trial Bench in its order dated 9th October 1977 has stated that while the learned counsel for the appellant was arguing, the appellant intervened and made an attempt to address the Court and the Bench agreed to give him an opportunity to make submissions after the close of arguments by his counsel. After the arguments were concluded the accused was asked to give his sub. missions in writing and the services of a Stenographer/Typist were also made available to him and he was told that Court would announce its judgment on the next day after taking into consideration his written submissions. It was denied that at any stage the Bench gave any indication that he would be heard for “hours and hours” or that he would be heard to supplement the arguments of his counsel.
870. If a party is represented by a counsel he has no right to address the Court except with the permission of the Court. At the relevant time in this case the appellant was also represented by his counsel who was addressing the arguments. According to the appellant during the course of arguments when he tried to intervene the Court had assured him that he could make his submissions for hours and hours after the conclusion of the arguments by his learned counsel. But the learned trial Bench in its order disposing of this objection observed that the Bench did not give any indication to the appellant that he would be heard for “hours and hours” to supplement the arguments of his learned counsel. It, however, seems to me that it is quite unnecessary to make any further probe into these two opposing contentions. Suffice it to mention here that admittedly the learned Bench had agreed to give the appellant an opportunity to make his submissions after the close of arguments by his counsel. I am, therefore, unable to appreciate as to why a reasonable opportunity was not allowed to him in this behalf in case he was not willing to give his submissions in writing and for the purpose avail of the services of the Stenographer placed at his disposal. But actually nothing turns on this episode and it does not show any bias or prejudice of the Court against him. If that were not so, why should the Court have in the first instance agreed to allow an opportunity to him to make his submissions at all. Whatever the reasons, it appears to me that the Court had passed the order in good faith in telling the appellant to file his submissions in writing, after having heard his counsel at full length, and there could be no mala fides of the Court about it. It is, therefore, difficult to conclude from is that the learned Acting Chief Justice was biased and prejudiced against him. At the same time it is not possible to appreciate the stand taken by the appellant in refusing to reduce his submissions in writing, if he was at all keen about them.
871. It was next alleged in the
petition under consideration that before the commencement of the trial, when
the application for cancellation of bail was being argued, within the passage
of a night, a dock was put up in the Court and the appellant was directed to be
seated behind it -with
two Police and Intelligence Officers sitting on his left and right. This
seating arrangement was continued throughout at the hearing and had deprived
the appellant of an opportunity to give instructions to and communicate with
his lawyers in confidence in Court out of the hearing of these officers.
Moreover, according to the appellant, the dock was specially devised and put
into use for the first time in the High Court at
872. But in disposing of this objection the learned trial Bench in its order dated 9th January, 1978 explained that the drink had to be prepared for segregating the accused from the large number of visitors to the Court who in view of the sensational nature of the trial had been swarming the Court room. The appellant was given a seat in the front row which was quite close to the seats of his learned Advocates who had been taking instructions from him . .regularly during the trial and talking to him in whispers. The other accused persons had also been off and on though not so frequently, giving instructions to their learned counsel without any inconvenience. The appellant was given all possible facilities to meet his counsel not only in Jail but also in the High Court Once, at times convenient to his Advocates. According to the Court the observation about the `Bench’ had to be made in view of the protest of the appellant about the nature of chairs on which he was made to sit and that these were the chairs meant for the use of the learned members of the Bar and were quite comfortable, It is observed in the order that it is well known that the accused persons, either stand in the dock or -are made to sit on benches in Courts.
873. In this connection the learned Special Public Prosecutor submitted that on that occasion the appellant actually gave a Press interview in Court during tea break and the necessity was therefore, felt in good faith for segregating the accused from the public. Mostly all Courts holding Sessions trials have their own built in docks for the purpose. It may be observed that the purpose of providing the docks in Courts is not to humiliate the accused but to protect them and to segregate them fort the safer and better administration of .justice without interference. Every undertrial prisoner is entitled to mercy, kindness and humanitarian treatment.
874. In the Court room in the High Court in which this trial was held there was no dock and it was therefore, installed before the commencement of the trial. According to the appellant this dock was specially devised to cage, humiliate and devalue him in public eye. This may be an unfortunate impression formed by him in the circumstances, but otherwise the necessity for segregating the accused was genuine and apparent from the fact that very great interest had been shown by the public in this case. It is therefore, difficult to doubt the bona fides of the Court in installing the dock in question. Similarly, there appears to be some room for misunderstanding concerning the remarks about the “benches” against which the appellant was aggrieved. The allegation that as a result of the seating arrangement in the dock the appellant and his learned counsel were handicapped in communicating with each other in Court for the purpose of this case is not borne out from the record. It does not appear that any complaint to that effect was at any time brought to the notice of the Court or any application was at all moved in Court to draw its attention towards any such difficulty experienced by the appellant in the course of the trial. Before us neither the other accused nor any of their learned counsel supported the appellant, in this complaint, nor did they ever make any such grievance in Court about it.
875. In the course of the trial,
on 1-11-1977, the learned Acting
Chief Justice gave an interview to two foreign correspondents, Mr.. Mark Tully,
a BBC’s representative and another covering the trial. The interview was
broadcast by the B. B. C. and reported in the national Newspapers including the
Pakistan Times,
876. Obpec6oons were raised against this interview given to the two foreign correspondents reported in the national Press and also broadcast by the B. B. C. Id was alleged that its object was to impress upon the world that the appellant was getting a fair trial according to common law traditions and that special arrangements had been made like tape-recording the proceedings. The appellant objected that it was not normal for Judges claiming to follow common law traditions to give Puss interviews about the manner and conduct of trial whilst the trial is a progress. According to him it indicated that the learned Acting C1KF Justice had felt that the general impression inside and outside the country was that he (appellant) was not getting a fair trial, and that therefore, the learned Acting Chief Justice was at pains to dispel this impression in the said Press interview.
877. It is surprising that even this Press talk of the learned Acting Chief Justice that the trial would be held in the full light of the day should have evoked such a reaction on the part of the appellant. The interview should have rather allayed his fears, if any. It does not lend any support to his plea of bias in the learned Acting Chief Justice, rather it proves to the contrary.
878. It was further alleged that in the course of the trial the appellant fell ill and could not attend the Court for several days under the advice of the Doctors. In spite of this the learned trial Bench did not allow sufficient adjournment and proceeded to record the evidence of the prosecution witnesses in his absence on more than one occasion to his great prejudice. This aspect of the case has been discussed at length at another place in this judgment and I have held that in the circumstances of the case, in exercise of the discretion vested in the learned trial Bench under section 540-A of the Code of Criminal Procedure, it had dispensed with his personal attendance in Court on the three occasions in question. In thus proceeding to record the prosecution evidence in the presence of his learned counsel no prejudice was in fact occasioned to him. 3 see no force in the contention of the learned counsel that the orders passed by ‘the learned trial Bench in this connection were mala fide and illegal.
879. It was also alleged in the transfer petition that once again the learned Acting Chief Justice could not repress his resentment and prejudice with regard to his supersession when Mr. Ghulam Ali Memon learned counsel for the appellant was arguing the Cr. Misc. No. 932-M/ 1977 and No. 933-M/1977. It is said that addressing the appellant in open Court, the Acting Chief Justice asked him “as to what would be the effect if, ‘in a hypothetical case’, under coercion and under influence (or words to that effect) Judges were superseded at the time of appointment of the Chief Justice?” In this connection in the corresponding para. of the order in question passed by the trial Bench, it is stated that the hypothetical case referred to in this behalf was put to the learned counsel for properly understanding his point of view and that it was never addressed to the appellant. According to the Court, this observation should have rather allayed his fears, if any, if he hall understood the hypothetical case as referring to his order of having superseded the Judges at the time of appointment of the Chief Justice, as having been passed under coercion and undue influence. In the opinion of the learned trial Bench at any rate, even if, these remarks had been addressed to the appellant (which was not correct) it could not be possibly construed as an example of resentment arid prejudice on the part of the Acting Chief Justice against him. In this connection we find from the Cr. Misc. Nos. 932 and 933-M of 1977 filed on behalf of the appellant and the consolidated order dated 9-10-1977 passed by the learned trial Bench that diverse questions relating to the constitution of the Lahore High Court in the absence of the Chief Justice as its permanent incumbent, who was at the time appointed as the Acting Governor of the Province, and the capacity of the learned Acting Chief Justice to act in his place were raised before it. These questions were also agitated at length in this Court before us in Criminal Appeal No. 109 of 1977 by special leave filed by the appellant. It. may be that in the course of the arguments advanced on behalf of the appellant before the trial Bench such a hypothetical question might have been raised in the context of the plea to the effect that the Lahore High Court was not properly constituted in the absence of the Chief Justice himself who was appointed as the Governor of the Province of Punjab, or that thereby the Office of Chief Justice had not fallen vacant and consequently the appointment of the Acting Chief Justice could not have been lawfully made in his place. The hypothetical question rested on the basic assumption that the order of supersession of Judges in the appointment of the Chief Justice had been procured by coercion and undue influence and for this reason the analogy did not hold good and did not have even the remotest relevancy to the supersession of Mr. Justice Mushtaq Hussain in the appointment of the Chief Justice of the High Court during the Pakistan People’s Party Government. It could not therefore, be possibly construed in the light in which the appellant has done it and there appears to be room for misunderstanding of the bona fide remarks, made by the learned Acting Chief Justice which could have been avoided. It cannot, however, be held that thereby he was biased and had betrayed it towards the appellant.
880. According to the appellant, once when his learned counsel was addressing the Court on Martial Law, the Acting Chief Justice went out of his way to uphold it by stating irrelevantly, and unnecessarily that the appellant had also continued the Martial Law in the country during his regime-after the fall of the Yahya’s regime. These remarks, even if made by the learned Acting Chief Justice appear to be too trivial and casual in nature. Nor were they meant to be personal against the appellant so as to merit any serious consideration.
881. According to the appellant in the course of this trial, the learned Acting Chief Justice had again and again condescended to tell the appellant in patronizing tone that in 1968 he gave a “fair trial” to him when he was detained under the Defence of Pakistan Rules, during the country-wide agitation against President Ayub Khan, and that on a couple of occasions he added that he also got an Inspector-General removed for maltreating `him during his detention. It was submitted that the appellant was at a loss to understand as to why those patronizing and lordly assertions were being repeated. In disposing of this objection, the learned trial Bench observed that the matter pertained to 1968, when the appellant was under detention and his case was decided by Mr.Justice Mushtaq Hussain (as he then was) and it could not give rise to any resentment on his part, except for the reason that a reference to the integrity of the Acting Chief Justice may not have been palatable now to the appellant in his drive to malign the High Court for political reasons in this trial. In my opinion the observations attributed to the learned Acting Chief Justice could have been said innocently to reassure him that if he could administer justice for him without fear or favour when he was under detention during the country-wide agitation against President Ayub Khan in 1968 he need not entertain any doubts against him now in this trial. There could not possibly have been any sinister or ulterior motive or insinuations against the appellant behind these remarks attributed to the learned Acting Chief Justice. This grievance of the appellant is rather far-fetched, if not wholly imaginary.
882. It was also alleged that when the appellant was unable to attend the Court for several days due to his illness supported by the medical certificates, the Acting Chief Justice, afterwards decided to constitute a Board of Doctors of his own choice to verify if he was really unable to attend the Court. In that connection he is said to have called for a Stenographer to dictate his order. However, as the Stenographer was not present in Court, the learned Acting Chief Justice is attributed to have loudly told his Private Secretary. “Khokhar, where have the other two fellows gone ? I hope they are not suffering from Influenza (Call them) what are they meant for’“. According to the appellant such sarcastic, insulting and uncalled for remarks were made almost daily in the course of the trial. Once or twice, according to him, when the insulting remarks had touched the limits of his patience and he got up to protest, but anticipating the reactions, the learned Acting Chief Justice in a harsh and rude tone shouted “you sit down”. On another occasion, without rhyme or reason, he shouted at the appellant and told him to “keep standing”.
883. In disposing of this objection in the order dated 9-1-1978 the trial Bench stated that the reference to what was alleged to have been said to the Private Secretary wag false and it was pointed out that Khokhar is the reader of the Acting Chief Justice and has never been his Private Secretary. In the opinion of the Court the appellant had given a twist to an act of the Court which was for his benefit. The appointment of a Board of Doctors should have been appreciated rather than decried against by him. The Court denied that any sarcastic or insulting and uncalled for remarks were ever made against the appellant in the course of the trial. According to the learned trial Bench the conduct of the appellant was not respectful and sometimes he also became unruly. At times he would rise from his seat and interfere in the proceedings, he was asked not to interfere and take his seat. Sometimes , while making his submissions he would keep sitting. There were occasions when he had to be directed to make his submissions while standing. In the opinion of the High Court the appellant had taken exception to such directions by twisting and introducing incorrect matters into it.
884. It is borne out from the record that at least on two separate occasions the learned trial Bench did constitute a Board of Doctors to medically examine the appellant after he had fallen ill in the course of his trial. There could be nothing wrong with those orders. But I am constrained to observe that on both these .occasions the appellant refused to be examined by the Medical Board.
885. It was further submitted in the petition under consideration that on 16th of October 1977, when Mr. Ehsan Qadir Shah, learned counsel for the appellant was cross-examining Mr. Ahmad Raza Kasuri P. W. 1, a law point for arguments was raised and Mr. D. M. Awan, senior counsel for him, stood up to address the Court in that connection. But he had hardly uttered the words “My Lords”, when the Acting Chief Justice in a loud voice asked him “Sit down”, and refused to hear him. On this Mr. D. M. Awan helplessly remarked with utmost respect that,---
“My
Lords, we know that all the restrictions are for the Defence Counsel.”
This infuriated the Acting Chief Justice who severely reprimanded Mr. D. M. Awan and when he looked at him in astonishment, he (Acting Chief Justice) screamed at him saying;
“Why are you staring at me”
and the learned counsel was brow-beaten. After the incident, the learned Acting Chief Justice warned the representatives of the Press not to release any news concerning it to the Press.
886. But in giving its account of the occurrence, the learned trial Bench said that the behaviour of Mr. D. M. Awan, counsel for the appellant at the trial, showed that he had acted as if he had completely aligned himself with his client. On 16th October 1977, Mr. D. M. Awan was unwell to resume the cross-examination of Ahmad Raza Kasuri P. W. I and at his request with the permission of the Court Mr. Ehsan Qadir Shah was allowed to take up the cross-examination of witness on behalf of the appellant. In this we do not know as to what was the precise law point which at the time had touched off the incident giving rise to this complaint. But it cannot be denied that at the time the witness was in the hands of Mr. Ehsan Qadir Shah and therefore, it could be said that Mr. D. M. Awan learned senior counsel for the appellant had no business to thus interfere with and interrupt the proceedings without the permission of the Court and he was accordingly asked to sit down. But instead of complying with the direction, he gratuitously made those remarks attributing partiality to the Bench in its face and then stared at it. 1 find that the learned counsel has filed a separate petition in this Court for expunction of the observations made against him, which is pending in this Court. I have therefore, refrained from expressing any final opinion in that behalf without having heard him. As at present advised, to say the least, on that date, i.e. 16th October 1977, when the trial of the accused was hardly five days old, nothing serious and out of the ordinary course, was brought to our notice from the record to have induced the learned counsel to have made the uncharitable remarks in the discharge of his professional duties as the defence counsel. In the circumstances there was nothing wrong in the learned Acting Chief Justice in having warned the Press representatives not to report anything about this incident concerning the Court and one of its senior Advocates.
887. As to the episode which took place in Court on 17th December 1977, when the appellant in addressing his counsel uttered the words “damn it” and was told not to address his counsel like that in Court, I have already dealt with it in some detail in an earlier portion of this judgment. It was an unfortunate incident. In this connection while I cannot absolve the appellant for his behaviour displayed in Court on that occasion, despite the fact that, he was in a disturbed state of mind at the time, yet the learned trial Court after having already called upon Mr. Awan, to resume his submissions, could have just ignored his further remarks gratuitously uttered by him to the effect that “he had had enough”. Nonetheless I find that the Court was vested with the authority and had exercised its control in passing the impugned order against the appellant on the merits which was warranted under the law. In my opinion, therefore, the appellant has failed to establish that in passing the impugned order, the learned Acting Chief Justice was biased and prejudiced against the appellant.
888. It was further alleged that in the course of the evidence the Special Public Prosecutor wanted to bring on record the report of the Enquiry Tribunal made by Shafi-ur-Rehman, J. and Mr. D. M. Awan learned counsel for the appellant also supported the Special Public Prosecutor in the request. But the learned Acting Chief Justice disallowed the joint request and consequently it was not brought on the record. On this Mr. D. M. Awan submitted that some contents of the report were being proved and that almost every thing concerning the report was being brought on record except the report itself. At this the learned Acting Chief Justice is said to have taken a very strong exception to these remarks and reprimanded the defence counsel for having made insinuations against the Court. But I find that the High Court was of the considered opinion that the report of the Enquiry Tribunal was not relevant and the mere tact that both the parties had agreed to its being brought on the record did not make the report admissible. The enquiry report in question was not admissible and could not legally form part of the evidence in the criminal trial notwithstanding the joint request of the parties. Even before us in this Court the learned counsel for the parties were not able to cite any law to show that it was legally admissible in the evidence with the consent of the parties, Therefore, the remarks uttered by the learned defence counsel were uncalled for and not justified. It rather belies the contention that the Acting Chief Justice was biased and prejudiced against the appellant and proves that he was impartial and did not accede to the request made by the prosecution supported by the defence in refusing to admit the evidence against law.
889. On the 7th of December 1977, the Acting Chief Justice had passed an order under section 265-M, Cr. P. C. to the effect that the Court would be working for longer hours beyond usual working hours till 4-00 p. m. on each day. Mr. D. M. Awan, learned counsel for the petitioner on the next day filed a written application and stated that it would not be possible for him to attend the Court daily till 4 O’clock in the evening. On this the learned Acting Chief Justice was stated to have taken a strong exception and reprimanded and compelled him to withdraw his application. In this connection the learned trial Bench has observed that in view of the delay in the trial which had kept five Judges of the Court busy in one case, the Acting Chief Justice had passed the order under section 265-M, Cr. P. C. that the Court would work till 4-00 p. m. each day. Op this Mr. D. M. Awan lodged a protest in a language and manner in which Courts are never addressed by the Hon’ble members of the Bar. The Bench took strong exception to this on which Mr. D. M. Awan withdrew the application which he wanted to submit along with his ,oral protest. The other learned counsel also made submissions but in proper language; for review of the order. Finding that the timing fixed by the Court, although they were convenient to the Court, were not found convenient by the learned counsel, a fresh order under that section was passed. In this Court also a fuss was made about this incident. Indeed it appears to us that it was too trivial a matter to be raised again in this Court by the appellant after it had been thus patched up and closed, and the application itself having been withdrawn by the learned counsel. Needless to observe that under section 265-M of the Code the Court had the power to regulate the time of holding the sitting and it is difficult to approve of the defiant attitude adopted by the learned counsel at the time. Nonetheless ultimately good sense had prevailed by the accommodation shown by the Court. This circumstance does not betray any bias or prejudice on the part of the learned Acting Chief Justice either against the appellant or his learned counsel.
890. On 28-12-1977, 6uring his examination-in-chief, Muhammad Abdul Vakil Khan (P. W. 14) had referred to an earlier incident when he was on patrol duty and had intercepted a. jeep belonging to the F.S.F. According to him a person came out of the jeep and disclosed that he was “Inspector” in the F. S: F. but the word “Inspector” had not been specifically mentioned by the witness anywhere in his previous statements. In that connection the witness was cross-examined and asked the name of the Inspector but he did not give his name. In spite of this however, Mr. Justice Gulbaz Khan, who was then dictating the evidence sin that day, introduced the name of “Ghulam Hussain Inspector” in giving dictation to the Court Typist. On this spontaneously the learned defence counsel raised the objection against it, and immediately on verification from the witness in the witness-box the name of Ghulam Hussain was ordered to be deleted. According to the appellant this solitary but significant instance sufficiently reflected against the working of the mind of the Court. In disposing of this allegation the learned trial Bench explained that the name of Ghulam Hussain Inspector was dictated under mistake and that it was corrected then and there on the spur of the moment. In this connection it is common ground between the parties that at the time the evidence was being dictated to the typist by Gulbaz Khan, J. in the presence of the parties in open Court. This is the only solitary occasion in which this allegation was made concerning Gulbaz Khan, J. Otherwise, on the entire record of this case, there is not even a remote suggestion by the appellant to doubt his integrity which is free from blemish. We have therefore, no reason to doubt him and the explanation furnished by the Bench that the name of Ghulam Hussain Inspector was dictated under a mistake which was corrected there and then. It was altogether an inadvertent and bona fide human error and in the circumstances no motive could have been possibly ascribed to Gulbaz Khan, J. or the other learned Judges of the Bench.
891. It was asserted that actually the corrections, if any, in the record of the day to day proceedings were made as and when required, only during the conduct of the daily proceedings in Court. The suggestion hat in Court only the draft statements of the witnesses were prepared that, after Court time, they were recasted and retyped, was denied by the Court. We are least impressed by the suggestion against the learned Bench of having tampered with the record. Indeed if there was any truth in it, the appellant and his learned .counsel could not have failed to have instantly raised it in writing on the spur of the moment in open Court in course of the day to day proceedings.
892. I have discussed above at some length the more important allegations made against the learned Acting Chief Justice in the transfer petition (Cr. Miss. No. 7-M. of 1978). I am now left to briefly mention and dispose of the comparatively less important allegations contained in the petition.
893. It was generally alleged that material and relevant questions asked from some of the prosecution witnesses in their cross-examination were disallowed or overruled and most of the questions, as also the answers given in that connection were not even brought on the record. Masood Mahmood P. W. 2 had married the wife of his friend after she bad procured a divorce from him and certain questions were put to him in his cross-examination which were disallowed by the Court on the ground that they were scandalous and irrelevant. According to the appellant, the learned Acting Chief Justice often used to remark without any justification that the cross-examination of the prosecution witnesses by the defence counsel was against the interest of the appellant and that the defence counsel was proving the case of the prosecution. On another occasion he told the learned counsel for the appellant in a sarcastic tone that it was finished with questions, he should better take time and not put irrelevant questions. Once while Mr. Masood Mahmood was being cross-examined by the learned defence counsel, in answer to a question he made a long and irrelevant speech against which the Court remarked that all that was as much irrelevant as the question put to him. On another occasion the learned Acting Chief Justice had threatened the appellant’s counsel with the law of contempt of Court. No adequate opportunity was allowed to effectively cross-examine the prosecution witnesses and to contradict them by confrontation with their previous statements in accordance with law, especially when they evaded to answer the questions put to them by saying that they did not remember and that there were material omissions and contradictions brought out on the record in the evidence of the witnesses. It was also alleged that on the other hand the Special Public Prosecutor had been allowed to ask all types of questions, relevant or irrelevant, admissible or inadmissible including leading ones to their own witnesses and the objections taken by the defence were ignored with contempt or overruled summarily. In that connection the protests of the defence counsel were rejected often with a threat of an action under “another law”, the law of contempt of Court. Whenever some answer favourable to the accused’s defence was given there was a prompt interjection from the Bench suggestive of the answer to the witness. At times M:. Irshad Ahmad Qureshi, Advocate, learned counsel for the confessing accused was illegally permitted to cross-examine the prosecution witnesses for the second time on behalf of Ghulam Mustafa accused, after they had already been cross-examined on behalf of the appellant., at his cost and disadvantage thereby prejudicing his defence. It was also stated that the learned Acting Chief Justice, at the request of Arshad Iqbal accused had deputed a police guard to enable him to collect a document and the explosives which he wanted to produce in defence and thereby the Court illegally assumed the role of the Investigating Agency for the production of the articles in Court. According to the appellant he had requested the Court for the retaped cassets of the proceedings or the grant of the permission to tape record the proceedings by placing his own tape-recorder in the Court room, because he had a fear that the Court tapes were likely to be tampered with to his detriment, But his request was disallowed. He further alleged that on 26th October, 1977 he noticed that when there were observations against the appellant or his counsel from the Bench, the learned members of the Bench would pit their hands on the microphone so that their observations were not tape-recorded. Au objection was also raised that the record of the evidence was full of Inadmissible-hearsay evidence.
894. I have carefully gone through all these objections raised by the appellant one by one and the corresponding orders passed by the learned trial Bench in that connection. I find that the allegations that the questions put to the prosecution witnesses were either disallowed or overruled and most of them were not even brought on the record, are highly vague and much too general. However, one thing is certain that in this behalf the defence had all along failed to adhere to the usual practice by reducing the objections into writing in the form of applications filed in the face of the Court for its order. This would have been helpful in keeping the record straight. I am therefore, clot impressed with these allegations and am constrained to observe that theft were belated and appear to have been made as an afterthought. I am Inclined to hold that the questions put to P. W. 2 Masood Mahmood impeaching his credit by injuring his character should have been allowed under section 148 of the Evidence Act. But at best it was a bona fide error of judgment made by the Court and it does not lend support to the contention that the Court was prejudiced against the appellant. In recording the evidence of witnesses the Courts are required to exercise their intelligent control on them. 1n that process the Courts often make their casual observations about the admissibility and utility of the evidence being produced on the record. But these cannot be taken amiss. I am therefore, not prepared to attribute motive to the Court in suggestion to the defence counsel that the question was against the interest of his client. I think the Court was justified in asking the counsel to seek an adjournment in case he was not prepared and had no questions to ask, or in telling him that he should be relevant. The procedure adopted in confronting the witnesses with their material omissions, and ociatradietions has been discussed above in the context of the evidence of some of the prosecution witnesses. It appears to me that in the circumstances of this case the Court had erred in allowing Mr. Irshad Ahmad Qureshi, Advocate to cross-examine the prosecution witnesses for the second time on behalf of Ghulam Mustafa as stated above. But from this it cannot be concluded that the Court was at all prejudiced against the appellant. The Court did not act as a prosecuting or investigating agency in providing the co-accused at his request with the necessary facility to enable him to collect the material which he wanted to produce in his defence. The Court had in its discretion refused to accede to the request of the appellant for the retaped proceedings of the cassets or for the permission to place his tape-recorder in Court. The suggestion made by the appellant is wholly mischievous and cannot be believed that the learned members of the Bench used to put their hands on the microphone so that their observations may not be recorded. This amounts to ‘another unwarranted slur on the Court deliberately made in order to whittle down the authenticity of the record of the trial proceedings which was being simultaneously taperrded also.
. 895. In the course of argument the learned counsel for the appellant also drew our attention to two orders both purported to have been made on 5th November, 1977 on an undated application filed in Court on the same date, without any specific prayer, but once again expressing his lack of confidence in the trial Bench. According to the first order passed by the Court the application was placed on the record to be disposed of in accordance with law, after the trial. But the second order which was also dated 5th November, 1977 shows that the application was disposed of the same day. However, there is sufficient evidence in this second order itself to show that it must have been made some time after the announcement of the judgment by this Court in Begwn Nusrat Bhutto’s case on 10th November, 1977. According to the learned counsel for the appellant he came to know of this second order only when they got the record for the purpose of this appeal. There is no doubt that the second order must have been passed by the Court only after 10th November, 1977 or may be, even after the trial as indicated in the first order itself. But it seems that by sheer inadvertence and mistake in typing, this order wad also dated 5th November, 1977. Otherwise there could be no ulterior motive in putting a wrong date on the order.
896. Before Its the learned counsel also drew our attention to another incident in Court which took place on 11th January, 1978, to in course of the cross-examination of P. W. 31 Ghulam Hussain by Mian (urban Sadiq Ikram on behalf of Mian Muhammad Abbas accused. The witness, while describing the purpose for which the first sten-gun had already been secured by Ghulam Mustafa stated that it had been obtained for use against Chief Justice. The witness later corrected by saying that by Chief Justice he meant Retired Justice Syed Jamil Hussain Riavi. The learned Acting Chief Justice while pointing out to the witness that he should have said Judge and not Chief Justice observed that the turn of Chief Justice had not yet come. At this the appellant remarked from his seat (it will come). The learned Chief Justice directed the officer incharge of the police on escort duty to take note of it and have an entry made at the nearest Police Station. He further remarked that not that he was offended by the remark but that if anything did happen, someone would be accountable for it.
897. Much was made out of this incident before us by the learned counsel to contend that it betrays the bias of the learned Acting Chief Justice against the appellant. He even submitted that by directing that a report may be lodged about this incident at the nearest Police Station he arrayed himself virtually as a party and became the complainant against the appellant concerning this incident which had happened in Court.
898. In this connection it appears to me that all that was said in a lighter mood and not seriously. Therefore, while. I agree with the learned counsel that the Court could have ignored it with equanimity, at the same time I cannot hold that direction issued to the officer incharge of the police on escort duty in this behalf amounted to the lodging of a formal F. I. R. against the appellant at his behest the fact remains that no further action was taken on it against the appellant. I, therefore, find no force in this contention which is repelled.
CONCLUSIONS AS TO FIRST PART OF DEFENCE SUBMISSION ON BIAS OF THE TRIAL BENCH
899. From the above discussion I find that the learned trial Bench of the High Court was lawfully and properly seized of this case on its transfer for disposal on its original side. There was no question of the learned Judges of the Bench having been the slightest pecuniary or proprietary interest in the subject-matter of the proceedings. The apprehensions in the mind of the appellant, if any, about the partiality or prejudices of the learned Acting Chief Justice have been found by me to be baseless. The allegation of bias levelled against him in his capacity as the Chief Election Commissioner by the Central Executive Committee of the Pakistan People’s Party was totally misconceived. In fact on 24th September, 1977 at the hearing in Court the appellant had for once himself expressed his confidence in the learned Acting Chief Justice. The fact that in the circumstances explained above the trial Bench did not allow an opportunity to the appellant to make his submission on 9th October, 1977 after the close of the arguments by his learned counsel did not betray any bias of the Court against him. At the commencement of the trial the dock had to be prepared for segregating the accused from the visitors in Court and there was no mala fides of the Court about it. Strictly speaking the allegations in connection with the “dock” and the “benches” had nothing to do with the actual proceedings conducted in the case. The appellant has failed to establish that thereby he was handicapped in communication with his counsel in giving instructions to him in Court. To say the least the conduct of the learned defence counsel in Court was far from desirable and at time he even aligned himself with his client. Even the appellant himself did not lag behind and was at times unruly. This is in addition to the fact- that he had repeatedly, all along indulged in baseless allegations of scurrilous and scandalous character against the learned Acting Chief Justice with scant regard for the contempt of Court so often committed by him. Even the Press talk by the learned Acting Chief Justice that the trial would be held in the full light of the day attracted the wrath of the appellant to vilify him and strangely enough was taken to be an expression of bias on this part. . The allegation that the record of the case was manipulated and tailored in a fashion to suit the prosecution is devoid of any force and the appellant has failed to substantiate it. Indeed the entire proceedings in the trial Court were tape-recorded and this could have been easily verified in case the appellant was at all serious about his allegations. In this connection it seems that most of the grievances put forward by the appellant were imaginary rather than real. I have already found against the appellant in connection with his other grievances contained in his petition dated 18th December, 1977 (Cr. Misc. No. 7-M of 1978). His allegations were based on distrust and suspicions entertain by him from the very beginning shown against the Court, without any justification on surmises and conjectures.
900. It is a pity to find that from the very beginning the appellant entered upon his trial with an initial bias ingrained into him against the Court and as the prosecution evidence involving him began to pour in, he instead of defending himself became more and more defiant and indulged in scurrilous and scandalous attacks on the Court. He was thus responsible for having created a tension and it was rendered increasingly difficult for the Court to maintain the decorum and control the proceedings.
901. In conclusion I have held that the impugned judgment of the learned trial Court is substantially based on the evidence on the record and its conclusions are well founded. Indeed I have agreed with the learned trial Bench and substantially affirmed its findings on all the material issues raised in this case. As discussed above the allegations of bias against the trial Bench are unfounded. In spite of the heavy odds the procedure followed at the trial in the case, as held by me above was warranted under the law and it did not in fact occasion and result in any prejudice caused to the appellant.
942. In this connection the learned counsel for the appellant has also filed two charts before us. The first chart deals with the alleged “instances showing bias of the trial bench in passing conflicting orders, admitting inadmissible evidence led by the prosecution and shutting out admissible evidence of defence.” I shall briefly deal with these points without giving them in detail owing to the length of this and tire other chart. A perusal of the charts would be necessary for a proper understanding of the remarks made here.
903. As discussed above the conversation between Masood Mahmood and Waqar Ahmad, the then Establishment Secretary was admissible as direct evidence under section 60 of the Act. Even if the office copy of the T. A. Bill Exh. P. W. 2/7 is not admissible in the evidence it does not prove any bias of the Court. P. W. 2 Masood Mahmood in his evidence did not depose to the contents of the letter and the objection raised has not force. The evidence of P. W. 2 Masood Mahmood about has poor state of health, etc. was neither irrelevant nor scandalous and this objection had no force. The next allegation has already been discussed above and overruled. The question put to P. W. 3 Saeed Ahmad was not a leading one and evidence of witness concerning Mr. Qutab was rightly admitted under section 50 of the Evidence Act. Even if the copy of Exh. P. W. 3/2-D is held to be inadmissible it does not prove any bias of the Court. The question put to P. W. 3 Saeed Ahmad Khan (at page 232) was rightly overruled arid it .is difficult to agree that it was relevant to impeach the credit of the witness. Evidently it is wrong to contend that the letter dated Path September 1972 (Exh. P. W. 3/14-D) was misconstrued by the Court. In the absence of the original letter dated 12th September 1972 its Photostat copy was not admissible in the evidence and the order passed by the Court is unexceptionable. The appellant has failed to elaborate as to how the question relating to Exh. P. W. 3/17D was relevant and the objection fails. The appellant has failed to establish that the admonition given to Mr. Awan for using provocative language ‘against the: witness was uncalled for and this objection is untenable. The objections as to the alleged improvements made by the prosecution witnesses have been discussed above. There was no harassment caused by the Court to the defence counsel in that connection. The evidence of P. W. 12 Muhammad Asghar Khan was admissible as direct evidence under section 60 of the Evidence- Act and the objection raised was misconceived. The question as put to the witness (pp. 374-5) was rightly disallowed and if the learned counsel had any further question to ask in that connection there was nothing to preclude him from doing so. The questions (pages 375 and 376) put to P. W. 12 Muhammad Asghar were rightly overruled. Even otherwise this does not show any bias on the part of the Court. The portion of the evidence of P. W. 14 Abdul Vakil (page 383) was admissible as direct evidence about what he had heard and it did not constitute hearsay evidence. The other question put to the witness (page 402) was altogether irrelevant and did not arise in the absence of any evidence that his statement under section 164, Cr. P. C. was not correctly recorded. The evidence of P. W. 19 Muhammad Amir (page 443) was admissible as direct evidence and the objection raised was misconceived. Both the objections about the evidence of P. W. 23 Nasir Nawaz have no force and were rightly rejected. The signatures of Ghulam Hussain on Exh. 24/9 were competently proved by P. W. 24 .Fazal Ali who was conversant with them. The controversy about the omissions in the statements of prosecution witnesses recorded under sections 161 and 164, Cr. P. C. have been discussed above. The evidence (pages 511-12) relating to the practice followed by the witness was admissible in evidence and the objection was rightly overruled in this case. The Court question was put to P. W. 16 Muhammad Bashir for clarification of the answer elicited by the counsel for the appellant from the witness in his cross-examination and there could be no valid objection against it. P. W. 31 Ghulam Hussain deposed (page 561) from his knowledge and the answer given was both admissible as well as relevant. The various contradictions put to the witnesses have been discussed above in detail and these need not detain us here. P. W. 36 Nadir Hussain Abidi did not depose to the numbers inscribed on the base of the empties as an expert on the point and his evidence to that extent was not admissible and was rightly disallowed. The correction in the evidence of P. W. 39 Muhammad Boota was made with the consent of the parties after the tape-record was played. As a result of the above discussion I find that the objections raised in the chart are by and large misconceived, devoid of any force and even frivolous. These do not even remotely go to establish bias of the Court.
904. The next chart produced on behalf of the appellant relates to the alleged instances showing how the course of evidence of witnesses was influenced. But this does not even remotely raise any inference of bias of the Court. The question put to P. W. 2 Masood Mahmood (page 144) was rightly disallowed by the Court as it was based on his “guess” and not on the facts from his knowledge. It was open to the learned counsel to have removed the ambiguity by eliciting answer to further questions put to the witness in his cross-examination, which he failed to do. The trial Court was justified in putting the further question (at page 289) to P. W. 4 M. R. Welch for the sake of clarification of his answer given by him. The Court in recording tike evidence is required to exercise its intelligent control and play its part in eliciting the truth. Any suggestion challenging the bona fide of the Court in this behalf was altogether misconceived. It appears to me that the Court was justified in exercises of its discretion in refusing permission to the defence to further erossexamine P. W. 10 Zulfiqar Ali Toor Magistrate and in allowing the two questions put to the witness by Mr. Irshad Qureshi, Advocate for the confessing accused. The incident showing how the name of Ghulam Hussain Inspector was recorded by mistake in the evidence of P. W. 14 Abdul Vakil Khan has been discussed above in detail. I have already held that it was due to a bona fide mistake on the part of Gulbaz Khan, J. in giving the dictation that this mistake had crept which was corrected there and then. As regards the suggestion that the record of evidence was determined by the bias of the trial Bench. I have carefully gone through the chart. In my opinion the Court was justified in putting the further question to P. W. 1 Ahmad Raza Kasuri for clarification of the answer already given by him. In law he could not be confronted with his statement referred to in a part of the report of the Enquiry Officer, especially when no copy of his actual statement had been supplied to the defence. This was indeed an attempt at misleading the witness which was not permissible. On the objection raised by the learned Prosecutor the Court was justified in asking the witness to repeat his answer which was faithfully recorded. The objection raised against it is untenable. I find that the Court had erred in overruling the questions (at page 135 and at page 140 of the Misc. Petition) put to P. W. 2 Masood Mahmood in his cross-examination. Likewise the Court had erred in overruling another question put to the witness (page 113) about the illegal supply of arms to Jam Sadiq Ali, especially to view of his own evidence on the point. Similarly the Court had erred in disallowing the question put to P. W. 2 Saeed Ahmad Khan (at page 267) about the record of the interviews granted by the Prime Minister. These questions though not wholly irrelevant did not have a material bearing on the matter in issue between the parties. In my opinion it was due to a bona fide error of judgment that the Court had disallowed them. The contention that the proceedings were re-typed, tailored and polished before its copies were issued has been repelled by me for the reasons recorded above. The proceedings held in Court were tape-recorded. But the learned counsel did not even dare to substantiate his plea by asking for verification of the proceedings by comparison with the tape-recorded version. The suggestions thus made are highly motivated, baseless and are repelled. There could be no valid objection to the statement of P. W. 14 Abdul Vakil Khan recorded in connection with his previous statement made under section 164, Cr. P. C. and the Court question put to him. The allegation that it was done as a “rescue operation” performed by the Court was misconceived.
905. In this connection before us a great stress was also laid on the record of the proceedings taken down on 28th November 1977 in the course of the evidence of P. W. 14 Abdul Vakil Khan (at page 384). It is alleged that in answer to a question put to the witness by the learned Public Prosecutor the witness stated as under :-----
“It occurred to me that Mr. Bajwa wanted to see the empties and might want to suggest to us to tamper with the empties. Mr. Bajwa was associated with the FSF and I had seen him using the vehicles of F. S. F.”
906. It was further alleged that this answer of the witness was dictated and the same was typed. The Acting Chief Justice meanwhile wrote something on a piece of paper and read it to the witness. This reads :--
“I know that Mr. Bajwa was associated with the F. S. F. very closely and I wanted to avoid any suggestion from him in order to ex6nernte the F. S. F.”
It is next alleged that the Acting Chief Justice then asked the witness;
“This is what you want to say”
and the witness replied in the affirmative and thus the answer drafted by the Acting Chief Justice and not that of the witness formed part of the record.
907. In reply to these allegations the Court stated that it was not possible to recollect what was stated therein. The Court was not bound to dictate each and every word uttered by the witness but only the substance of his statement.
908. It was not expected of the Court to have remembered orally about the details of what a particular witness had allegedly stated. If what is being alleged is correct the easiest thing to do for the learned counsel was to have put all this in writing there and then in the face of the Court in the form of an application and not filed the application after about 20 days. This would have been immensely helpful in keeping the record intact when the things were fresh in the minds of all concerned. In the circumstances, at this stage, therefore, it is difficult to vouchsafe about the truth of such serious allegations and positively hold that the answer given by the witness was thus recast and then brought on the record in a tailored form. It was rightly laid down in Anwar v. Crown (P L D 1955 F C 185) that the fact that there was a paralysis of the judicial faculties in a biased Judge cannot be proved by independent evidence. Suspicions however, strong raised by the appellant cannot take the place of truth in such matters. In my opinion taking into consideration all the facts and circumstances of this instance, the appellant has failed to prove that there was any likelihood of bias and substantiate his allegations in this behalf. I have already commented on the objection arising out of the statement of P. W. 16 Muhammad Bashir. No exception can be taken against the note dictated by the Court in the evidence of P. W. 19, Muhammad Amir concerning the Log Book and the objection raised is fallacious. The Court rightly did not allow the permission to Mr. Qurban Sadiq Ikram to put further question to P. W. 34 Abdul Hayee Niazi after he had already cross-examined him and the objection raised has no force. In my opinion the objection raised by the learned counsel for the appellant against the leading form of the question (at page 442) put by the prosecution to its witness (P. W. 19 Mohammad Amir) was tenable and the Court was not justified in having overruled it. But this irregularity did not affect the merits, and was due to a bona fide error on the part of the Court and not wilful.
909. The appellant has also filed another chart of the alleged instances of some paragraphs in the impugned judgment showing the so-called paralysis of the judicial faculties in the trial Court. Generally speaking these objections have been taken care of in my above judgment and there is no need for any separate discussion of-the matter at this stage. .
910. In paragraphs 610 to 616 of the impugned judgment the High Court has made gratuitous observations about the personal belief of the appellant and delivered a sermon as to the mode of conduct prescribed by Islam of a Muslim ruler. It is also stated that the appellant was “a Muslim in name only and that he had abused his powers under the Constitution. I am inclined to agree with the learned counsel that the observations in these paragraphs were not necessary for the disposal of the case by the High Court. In this connection, however, the learned counsel further submitted that these observations and remarks about the appellant disclose the extreme hostility and bias entertained on the part of the learned trial Bench against the appellant. It, however, appears to me that the High Court had found the appellant guilty along with the other co-accused on the merits of the evidence adduced in the case. Its findings to that effect were not influenced by any such extraneous considerations. In fact it was only towards the end of the judgment that this discussion occurs and the conclusion was drawn in proposing the punishment as stated in paragraph 617 that the appellant was “thus liable to deterrent punishment”. Although even for this limited purpose also these observations were not strictly relevant, yet that did not thereby vitiate the order of conviction of the appellant which was not based on any such extraneous considerations.
911. In the proceedings as well as in the impugned judgment the learned trial Bench has often used the term “principal accused” in referring to the appellant. In that connection stress was laid before us by his learned counsel to contend that this by itself sufficiently disclosed bias and prejudice of the Bench towards him. But it is evident that on the findings recorded by the trial Court, the appellant alone had the motive behind the attempted murder and had thought about it. Even otherwise having regard to his status in life he was the principal amongst the co-conspirators and occupied the most important position amongst them. It cannot however, be denied that strictly speaking, in law, the description of the appellant as the principal accused as an abettor was inapt. But this by itself is not sufficient to betray any bias and prejudice of the Court against him who was-otherwise found guilty on the merits. Similarly the mere use of the other terns like the “arch culprit” and “compulsive liar”, etc. against the appellant do not go to prove the bias of the Court against a guilty accused.
912. One last contention advanced by the prosecution in this connection may also be mentioned here in passing. The trial Bench consisted of five learned Judges of the High Court including its learned Acting Chief Justice heading it. Each one of the Judges was independent and not susceptible of any influence of the learned Acting Chief Justice in their judgment. The allegations alleged in this case were almost entirely directed against the learned Acting Chief Justice. In these circumstances the independent opinion expressed by the other learn-ad Judges constituting the Bench was entitled to its due weight and respect.
913. It has been authoritatively
laid down in a number of decided cases by this Court that “mere suspicion of
bias, even if it is not unreasonable, is not sufficient to render a decision
void. A real likelihood of bias must be established”. A mere apprehension in
the mind of a litigant that he may not get justice, such as is based on
inferences from circumstances is not sufficient. This, indeed, is the true test
to be applied in sifting the evidence in arriving at a conclusion in such
cases. In this connection in Syed Ikhlaque Hussain v.
914. On another aspect, in
connection with the bias in a Judge, a number of authorities were cited before
us, some of them from foreign jurisdictions. But the law on the point was
authoritatively laid down by the Federal Court of Pakistan in the year 1955 and
still holds the field. It is therefore, not necessary to examine the other
cases cited before us. In the reported case of Khairdi Khan v. Crown (P L D
1953 F C 223) it was at one time laid down by the Federal Court that bias
simpliciter, of whatever kind, has the effect of vitiating all proceedings held
before a biased Judge and that all. adjudications made by him are void by the mere
fact of his being subject to some extra-judicial influence, however, correct, reasonable, or well
founded his conclusions may be. But this dicta was overruled in 4nwar v. Crown
and it was expressly observed that the rule laid down in Khairdi Khan’s case
that bias vitiates all judgments and all orders made by a biased Judge are
void, is incorrect and no longer forms part of the law of
Final conclusions as to bias
915. in the light of the declared law and the facts discussed above 1 have reached the conclusion that although sonic of the orders made by the trial Bench ra the day to day conduct of the case may nut have been correct, on a mrict view of the law ; and some others may not have bees fully called’ for in blue facts and circumstances of the case, yet these were all matters within the discretion of the Court, and mere error therein cannot amount to proof of bias. The appellant was unfortunately misled into thinking from the very start of the case that the learned Acting Chief Justice was biased against him. There was, in fact, no factual basis for such an apprehension. In any case there was no such apprehension in respect of any of the other four learned Judges constituting the Bench. The trial of the appellant has by and large been conducted substantially in accordance with law, and the conclusions reached by the High Court on the merits of the case have been found to be correct on detailed analysis of the evidence and the law. I would therefore, repel the contention that the trial was, in any manner, vitiated by reason of bias on the part of the Presiding Judge of the Bench.
Regarding letter of Investigating Officer Abdul Akhaliq dated 18th February 1978 to his Departmental Superior recommending a brother f-f appellant Iftikhar Ahmad for employment
916. At this stage an ancillary matter which cropped up during the hearing of then- appeals may also tie disposed of On 8th October 1978 Mr. Yahya Bakhtiar brought to the raotire of the Court a document purporting to be a photo stat copy of a letter written by AWul Khaliq, Deputy Director, F. 1. A. (who has appeared in this case as f. W. 41) addressed to the Director, Central 2;axe,, V. I. A. can tat:in febsrtu’y 678, making a recommendation for the employment of one Riaz Ahmad a brother of the confessing accused Iftikhar Ahmsd, as an assistant sub inspector in the F. 1. A. for the assistance given by Riaz ahmad and his father Muhammad Sadiq in persuading iftikhar, Ahmad and his Co-accused to stick to the confessions, mad by them. The purpose of producing the aforesaid letter, as submitted by Mr. Yahya khan was icy show that the confessions made by the conserned accused were not voluntary, but were result of an inducement or pressure.
917. We called for a report from Abdul Khaliq as to the authenticity of this letter, as well as its contents. We further directed that the relevant file of appointment of Rivz Ahtnad in the F. I. A. should also be made available. A photostat copy of the aforesaid letter, along with
(1) P L D 1966 S C 140 (‘2) P e. O ia60 S C 301
its enclosures, was supplied to Mr. M. A. Rehman, Advocate-on-record, who was directed to contact the authorities and get the needful done.
919. Abdul Khaliq has filed his reply. He has given details of the dates when each of the accused involved in this case was arrested ; when he was interrogated and when he made the confessional statement before a Magistrate. As those details already exist on the record, I need not reproduce the same here, except so far as they are relevant for the precise matter under consideration, as will be shown later.
919. Abdul Khaliq has stated that being the officer incharge of this case, he had been appearing in Court to assist the Public Prosecutor and also watch the proceedings. He has pleaded that efforts were being made by the parties and counsel (Qazi Mohammad Saleem, Advocate) of Mr. Bhutto to win-over witnesses. Mr. Yahya Bakhtiar and others concerned have refuted these allegations.
920. Abdul Khaliq has stated that during the trial Mohammad Siddiq, father of Iftikhar Ahmed, met him. He explained the difficulties in which his family was, both for financial strain as well as due to the involvement of his aforesaid son. Though he at the same time was disapproving the acts of his accused son, but seemed to be ready to face what the destiny might have in store for him, with one consolation that at least his son bad disclosed the truth and exposed all concerned. He expected some help for employment for his son Riaz Ahmad. It was purely on humanitarian grounds that in that context he wrote letter dated 18th February 1978 recommending some job for Riaz Ahmed. It was not an inducement for big son to make the confession which had already been made on 26th July 1977, and not withdrawn on 11th October 1977 when the accused replied to the charge-sheet which was read out to him in Court.
921. I have considered this matter. As the facts disclose, confession of Iftikhar Ahmed had been recorded on 26th July 1977 ; the confession of Arshad Iqbal accused was recorded on the same date; the confession of Ghulam Mustafa, accused, was recorded on 1st August 1977 ; the confession of Ghulam Hussain, approver, was recorded on 11th August 1977 ; the confession of Masood Mahmood was recorded on 24th August 1977 and the confession of Mian Abbas accused was recorded on 18th August 1977. In the face of the aforesaid data a letter written on 18th February 1978 could hardly be a ground for inducing appellant Iftikhar Ahmad to make a confession or to stick to that confession. Again, in the natural course of human conduct it even otherwise looks odd that a father would persuade his one son to keep on sticking to his confession which may lead him to the gallows in consideration for a petty job for another son ; and much less can such an inducement be of any relevancy to the other accused, totally unrelated to Iftikhar Abmad by blood or otherwise. .
922. In these circumstances, the plea of any inducement as raised by Mr. Yahya Bakhtiar on the basis of the letter under consideration appears to be far-fetched. All the confessing accused have voluntarily reiterated their confessions in this Court during their personal appearance. This could not have been due to the offer of a petty job in the F. I..A. to a brother of Iftikhar Ahmad.
SUMMARY OF CONCLUSIONS
923. My conclusions on the entire case may now be summarised.
924. This was an unprecedented trial, involving a former head of the Government, and for this reason the proceedings before the trial Bench were of a particularly difficult and taxing nature. Unfortunately the task of the Bench was not made any the easier by certain attitudes adopted by appellant Zulfiqar Ali Bhutto at various stages of the trial. In this Court, major part of the arguments addressed by the defence were devoted to demonstrating that the trial had not been held fairly, and that it suffered from a large number of procedural illegalities, which went to the root of the matter vitiating the whole trial, and the convictions and sentences recorded as a result thereof. My examination of these submissions, ranging over almost the entire field of criminal procedure, has led me to the conclusion that by and large the trial was held substantially in accordance with the provisions of the Criminal Procedure Code ; and that any omissions, errors or irregularities, or even illegalities, that have crept in, were of such a nature as did not vitiate the trial, and were certainly curable under the provisions of section 537 of the Criminal Procedure Code as it now stands in its amended form since 1972.
925. I have further found that the allegations of bias against the Presiding Judge of the Bench, and criticism of the actions and orders made by the Bench during the course of the trial are not justified. In spite of the events, and the background, alluded to by the appellant and his counsel, the High Court Bench of five Judges has done its best to conduct the trial as fairly as possible, in the circumstances then prevailing.
926. The oral and documentary evidence led by the prosecution has succeeded in establishing beyond reasonable doubt, that :------
(i) Ahmad Raza Kasuri was an
admirer of appellant Zulfiqar Ali Bhutto, and became one of the founder members
of the Pakistan People’s Party, was made the Chairman of the Local Branch of
the Party in Kasur, and subsequently awarded the Party ticket for election to
the National Assembly of Pakistan in the elections held in December, 1970, and
was so elected. However, thereafter differences began to develop between the
two, and Ahmad Raza Kasuri became a virulent critic of the person and policies
of the appellant, both inside and outside the Parliament. He lost no
opportunity of accusing appellant Zulfiqar Ali Bhutto of being power-hungry, and being
responsible for the break-up
of
(ii) The climax, or the breaking point was reached on the 3rd of June, 1976, when a highly unpleasant altercation took place between the two on the floor of the Parliament during the coarse of which Zulfiqar Ali Bhutto told Ahmad Raza Kasuri to keep quiet, adding “I have had enough of you ; absolute poison, I will not tolerate your nuisance”.
(iii) (a) The motive to do away with Ahmad Rata Kasuri is Thus firmly established on the record on the part of Appellant Zulfiqar Ali Bhutto. During the lengthy cross-examination of Masood Mahmood and other prosecution witnesses no tangible motive was shown to exist on the part of either Masood Mahmood or, Saved Ahmad Khan, or any of the other accused persons involved ire this case, to arrange for the assassination of Ahmad Raze Kasuri through the agency of the Federal Security Force.
(b) Ahmad Raza Kasuri was certainly not a non-entity in so far as the P. P. P. was concerned. In one of the letters written by the appellant to Kasuri the latter was praised very high and described as a man of crisis. Even his speeches in Parliament display his flair for pungent speech. His surveillance and subsequent pursuit by the former Prime Minister’s Chief Security Officer and his Assistant show his importance to the appellant.
(iv) It was at this juncture that Zulfiqar Ali Bhutto entered into a conspiracy with approver Masood Mahmood, who was then the Director-General of the Fedora: Security Force, to get Ahmad Raza Kasuri eliminated through the agency of the F. S. F. The exact direction given by Zulfiqar Ali Bhutto to Masood Mahmood was to produce the dead body of Ahmad Raza Kasuri, or his body bandaged all over. In spite of the fact that Masood Mahmood protested to the then Prime Minister against the carrying out of such a task, yet all his subsequent actions show that he became a voluntary participant in the design to eliminate Ahmad Raza Kasuri, and for this purpose he inducted appellant Mian Muhammad Abbas into the conspiracy, whose name hall also been indicated to Masood Mahmood by Zulfiqar Ali Bhutto, saying that this man was already in the know of the thing having been given instructions in this behalf by Masood Mahmood’s predecessor Malik Haq Nawaz Tiwana.
(v) Mian Muhammad Abbas inducted approver Ghulam Hussain as well as appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad, directing them to assist Ghulam Hussain in :his task. He also gave instructions to witnesses Amir Badshah Khan and Fazal Ali for the supply of arms and ammunition to Ghulam Mustafa and Ghulam Hussain for this purpose. Ghulam Hussain had been specially selected for the task as he had been a commando instructor in the army for 14 years, and had also demonstrated his capabilities in this behalf by running a commando course for the Federal Security Force under the direct supervision of Mian Muhammad Abbas, and had been given rapid promotions from A. S. I. to S. I., and to Inspector in less than a year ;
(vi) That it was in pursuance of this conspiracy that an abortive attack was made on Ahmad Raza Kasuri’s car in Islamabad on the 24th of August, 1974, Ahmad Raza Kasuri promptly registered a case in this behalf at Islamabad Police Station, and the Investigating Officer Nasir Nawaz was able to recover five crime empties bearing the mark 661/71 and expert examination showed that they were of 7.62 M. M bore, i. e. of the type which was in use with units of the Federal Security Force. . However, this case was filed as untraced, although Ahmad Raza Kasuri tabled a privilege motion in the National Assembly.
(vii) -On the 29th of July, 1974, the Prime Minister and Masood
Mahmood were together in Quetta, and there Zulfiqar Ali Bhutto again gave
instructions to Masood Mahmood to take care of Ahmad Raza Kasuri during the latter’s
proposed visit to Quetta. Masood Mahmood thereupon gave instructions to his
local Director M. R. Welch, who has given oral and documentary evidence in
support of this part of the prosecution case. A study of the documents proved
by M. R. Welch leaves no doubt whatsoever that there was, indeed, a conspiracy
to get Ahmad Raza Kasuri killed during his visit to
(viii) After the failure of the
(ix) in the First Information Report registered soon after the death of his father, Ahmad Raza Kasuri clearly stated that the attack was launched on him as a result of political differences, and that he had previously also been similarly attacked, and he recalled that an unpleasant incident had taken place between him and Zulfiqar Ali Bhutto in the Parliament in June, 1974.
(x) The calibre of 34 empties
recovered from the scene of the crime again shows that they were of 7-62 MM. bore, and they had
the sane marking, namely, 661/71 as was the case with the crime empties
recovered after the
(xi) A Tribunal presided over by
Mr. Justice Shafi-ur-Rehman of the Lahore High
Court was appointed by the Punjab Government to enquire into the incident, but
its Report was not allowed to be published for the reason that the Provincial
Chief Minister, who was fully competent to decide the question of publication, “respectfully”
sought the advice of the appellant in the matter. The original Report of the
Tribunal has not been traced, but an office copy of the letter written by the
Chief Minister ‘of the
(xii) In the meantime Ahmad Raza
Kasuri kept on clamouring for justice., and demanding the resignation of the
then Prime Minister on the ground that he would not get justice as long as
Zulfiqar Ali Bhutto was in power. In spite of the identity of ammunition used
in both the incidents at
(xiii) When the case was reopened
after the promulgation of Martial Law in Pakistan on the 5th of July, 1977, it
was found that there was voluminous documentary evidence to show the intermeddling
of the Prime Minister’s Chief Security Officer and his Assistant with the
investigation of the case, so much so that even a copy of the Report of the
Shafi-ur-Rehman Tribunal was found
to have been sent to Saeed Ahmad Khan by the Chief Secretary to the Punjab
Government, indicating that the matter had already been discussed between the
two. It also transpired that both the officers on the staff of the appellant
had been making frequent visits to
(xiv) There is also voluminous oral and documentary evidence to show that after the murder Ahmad Raza Kasuri was kept under special surveillance, and reports on his activities and utterances were being submitted to the former Prime Minister in quick succession by the late Abdul Hamid Bajwa and Saeed Ahmad Khan. Even the physical description and identity of the gun-man engaged by Ahmad Raza Kasuri was brought on the record.
(xv) In the final phase, efforts
were initiated by the appellant to bring Ahmad Raza Kasuri back to the fold of
the Pakistan People’s Party, and this task was entrusted to his Chief Security
Officer Saeed Ahmad Khan and the late Abdul Hamid Bajwa. The prosecution has
placed on the record an exceptionally large number of documents which leave no
doubt whatsoever that in a subtle manner these two experienced police officers
were working on a much younger man like Ahmad Raza Kasuri, and almost succeeded
in convincing him that his political future and the safety of his own life and
family lay in a rapprochement with the Prime Minister. After a careful and
detailed analysis of these documents I am left in no doubt at all that the
moves had been initiated by the appellant, otherwise the repeated visits of his
senior officers like Saeed Ahmad Khan and ‘Abdul Hamid Bajwa to this
disgruntled politician did not make any sense. In fact, the last document in
the series significantly speaks of “negotiations” having been conducted for the
last six months with Ahmad Raza Kasuri so as to bring him back to the Pakistan
People’s Party. This part of the evidence makes it clear that these moves were
initiated so as to silence Ahmad Raza Kasuri, who was still persisting in his
loud demand for justice against the sitting Prime Minister. As a result of
these moves Ahmad Raza Kasuri did return to the People’s Party and was shown
petty favours, including his deputation on a Parliamentary delegation to
927. The cumulative effect of all this oral and documentary evidence is to establish conclusively the existence of motive on the part o appellant Zulfiqar Ali Bhutto ; and the existence of a conspiracy between him, approver Masood Mahmood, approver Ghulam Hussain and appellants Mian Muhammad Abbas, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad. It is significant that the task was entrusted to the Director-General of the Federal Security Force who was made personally responsible for its execution. The various subordinate officers were inducted at various levels and at various stages for the execution of the conspiracy through the employment of highly sophisticated and automatic weapons of the Federal Security Force as well as its trained personnel.
928. It is true that most of the evidence was collected in this case after the promulgation of Martial Law, but I have. not !men able to persuade myself, that highly placed officers like Masood Mahmood, Saeed Ahmad Khan, M. R. Welch, D.I.G. Abdul Vakli Khan, S.S.P. Muhammad Asghar Khan and a host of other smaller officers, have all come forward to concoct a false story against the former Prime Minister under pressure from the Martial Law authorities. Masood Mahmood and Saeed Ahmad Khan had enjoyed positions of special privilege and power under Zulfiqar Ali Bhutto, and were in constant and close touch with him throughout his years in. office right up to his fall on the 5th of July, 1977. In view of their seniority, age and experience, and their close association with the former Prime Minister, and the privileges enjoyed by them under his patronage, it is difficult to believe that they would falsely fabricate such detailed evidence against him. Even if they were under any pressure to falsely implicate tile former Prime Minister, I have not been able to discover any reason why people like Masood Mahmood, M. R. Welch, approver Ghulam Hussain and witnesses Fazal Ali and Amir Badshah Khan should falsely implicate appellant Mian Muhammad Abbas who was holding the rank of Director in the Federal Security Force at the relevant time. These circumstances lend assurance to their evidence, which, in any case, stands amply corroborated by contemporaneous documents, to which extensive references have already been made. It may also be observed here that it is true that some of the confessing accused expressed their willingness to confess after they had been in detention for four to six weeks, but this factor is irrelevant once the approver has appeared in Court to give direct testimony and subjected himself to cross-examination. In any case, his evidence is not to be accepted unless properly corroborated. In the present case this requirement has been more than amply fulfilled.
929. It has also to be remembered
that the case was registered as long ago as the early hours of the morning of
the 11th of November, 1974, and the Prime Minister’s name had been clearly
mentioned therein by the complainant Ahmad Raza kasuri. In spite of the
identity of ammunition used in
930. In these circumstances there is absolutely no support for the contention that the present case was politically motivated, or was the result of international conspiracy. The case having been registered almost three years before the ouster of the appellant from power, and a clear indication being available as to the possible identity of assailants, not only in the kind of ammunition used in both the incidents, but also in the Report of the Shafi-ur-Rehman Tribunal, the investigation was deliberately allowed to be stultified. It is, therefore, futile to urge that the prosecution of the appellant is politically motivated, or a result of international conspiracy. .
CONVICTIONS UPHELD
931. As a result of the very detailed and exhaustive examination of the evidence of the two approvers, supported as it is by a mass of oral and documentary evidence, I ant left in no doubt that the prosecution has fully succeeded in establishing its case, namely, the existence of the conspiracy the identity of conspirators and also the further fact that the death of Ahmad Raza Kasuri’s father Nawab Muhammad Ahmad Khan deceased was a probable consequence of the aforesaid conspiracy and was brought about during the course of a murderous assault launched on Ahmad Raza Kasuri in pursuance of this conspiracy. On these findings all the convictions recorded against the appellants are fully justified, except that in the case of appellant Zulfikar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa section 301 of the Pakistan Penal Code has been found by me to be inapplicable; as this section applies only to the actual killers, which in this case means Arshad Iqbal and Rana Iftikhar Ahmad.
932. It is true that the three appellants Zulfikar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa were not specifically charged under section 111 of the Pakistan Penal Code, but in this regard I have found that the matter is fully covered by the provisions of section 237 of the Criminal .Procedure Code, read with section 236 thereof, for the reason that in the ultimate analysis it was a question of law as to whether the facts proved on the record fell within the purview of section 301 read with section 109, or section 302 read with sections 109 and 111 of the Pakistan Penal Code. All the essential facts were fully within the knowledge of the appellants, having been brought during the course of evidence recorded in their presence, or in the presence of their counsel.
QUESTION OF SENTENCE
933. Taking now the question of
sentence, I will at this stage deal with the case of appellant Zulfikar Ali
Bhutto in the first instance. The facts summarised in the preceding paragraphs
establish beyond any doubt that the appellant used the apparatus of Government,
namely, the agency of the Federal Security Force, for a political vendetta.
This was a diabolic misuse of the instruments of State power as the head of tie
administration. Instead of safeguarding the life and liberty of the citizens of
EXPUNCTION OF CERTAIN PARAGRAPHS FROM THE HIGH COURT JUDGMENT
934. Before concluding this part of the case I may refer to the grievance made by appellant Zulfikar Ali Bhutto, and his counsel, that the High Court had gone out of its way to make gratuitous observations in paragraphs 610 to 616 of its judgment regarding the personal beliefs of the appellant, and delivering a sermon as to the mode of conduct prescribed by Islam for a Muslim ruler. The appellant, while appearing in person at the close of the arguments in his appeal, was particularly indignant that he had been described by the High Court as “a Muslim only in name”. He also took objection to the observations contained in these paragraphs to the effect that he had abused his powers under the Constitution for satisfying his personal inane craving for self-aggrandisement and perpetuation of his rule. It was submitted that the observations contained in these paragraphs not only showed bias of the Court against the appellant, but were also completely irrelevant for the disposal of the case before the High Court. It was, accordingly, prayed that they be expunged from the impugned judgment.
935. The question of bias has already been dealt with in an earlier part of this judgment, and it is not necessary to advert to it again. However, after carefully perusing the contents of the paragraphs in question, I am inclined to agree with the submission made on behalf of appellant Zulfikar Ali Bhutto that the observations contained in these paragraphs were, indeed, not necessary for the disposal of the case before the High Court: They are in the nature of a theoretical exposition of the duties and conduct prescribed for a Muslim ruler by Islam, and also contain observations as to the abuse of the Constitution by the appellant, although this subject was not a part of the trial before the High Court, nor was the High Court inquiring into the question whether the appellant was a good Muslim, or a Muslim only in name. Further these paragraphs do not, in any manner, except by implication and innuendo, contain any reference to the case under trial before the High Court.
936. The operative part of the conclusions of the High Court is fully contained in paragraph 609 of the judgment, which reads as follows :-
“The principal accused (i.e. Zulfikar Ali Bhutto) is the arch culprit having a motive in the matter. He has used the members of the Federal Security Force for personal vendetta and for satisfaction of an urge in him to avenge himself upon a person whom he considered his enemy. For his own personal ends he has turned those persons into criminals and hired assassins and thus corrupted them.”
937. This paragraph could logically have been followed by paragraph 617 of the judgment, which consists of just one line reading, “the principal accused is thus liable to deterrent punishment”. The intervening paragraphs from 610 to 616 were not at all necessary for slating the, conclusion ambodied in paragraph 617.
938. In these circumstances, I am of the view that paragraphs 610 to 616 of the judgment can safely be deleted without, in any manner, affecting its integrity, meaning and logical sequence. I would, accordingly, direct that they shall be expunged from the judgment.
CASE OF APPELLANT MIAN MUHAMMAD ABBAS
939. As regards Mian ‘Muhammad Abbas (appellant in Criminal Appeal No 12), his learned counsel, Mian Qurban Sadiq Ikram, submitted that, although, the appellant had contested the case in the trial Court by pleading not guilty to the charges framed against him, and had also led defence evidence on certain points, he had submitted a written application to this Court through the Jail authorities, duly attested by his counsel, stating that he accepted the prosecution allegations against him as correct. In these circumstances, Mian Qurban Sadiq Ikram stand that he would confine his submissions to only two points;
(a) That the case of Mian Muhammad Abbas was fully covered by section 94’ of the Pakistan Penal Code inasmuch as whatever was done by him in furtherance of the conspiracy to assassinate Ahmad Raza Kasuri was done under a constant threat of injury from the then Prime Minister of Pakistan Zulfiqar Ali Bhutto, and the then Director-General of the Federal Security Force, namely, approver Masood Mahmood, as the appellant himself had no motive or animus of any kind to do away with Ahmad Raza Kasuri ; and
(b) That, in any case: there were strong mitigating circumstances which justified the imposition of the lesser penalty.
940. Section 94 of the Pakistan Penal Code provides that;
“Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.”
941. It will be seen that under this section a plea of compulsion by threats which reasonably cause the apprehension of instant death is a good defence by a person charged with any offence except murder and offences against the State punishable with death. Now, in the present case, it is true that Mian Muhammad Abbas has not been charged with the offence of murder, but only with the offence of abetment of murder under section 302/301 read with section 1699 of the Pakistan Penal Code, and for this reason his case could fall within the ambit of this section, if it is possible to hold that he acted under threats which reasonably caused the apprehension that instant death would otherwise be the consequence; provided he did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death place himself m the situation by which he became subject to such contraint. The question is whether the evidence discloses the existence of any such threats.
942. The evidence led at the
trial discloses that Mian Muhammad Abbas had retired from the police service
after attaining the rank of Superintendent of Police, and was re-employed as a Director in
the Federal Security Force, and was in charge of operations, administration and
intelligence. He is supposed to have been inducted into the conspiracy
originally by the former Director-General
of the Federal Security Force, the late Malik Haq Nawaz Tiwana, but apparently
no overt act of any kind was done during the tenure of this officer. He was
succeeded by approver Masood Mahmood, and the latter conveyed, sometime in the
middle of 1974, to Mian Muhammad Abbas the directions of Prime Minister
Zulfiqar Ali Bhutto to do away with Ahmad Raza Kasuri. According to Masood
Mahmood, Mian Abbas readily fell in line and asked Masood Mahmood not to worry
about it. The evidence discloses a number of steps taken by Mian Abbas, in
furtherance of the conspiracy, including the deputing of approver Ghulam
Hussain, appellant Ghulam Mustafa and other officials of the Federal Security
Force to execute the plan. It is also established that it was under the orders
of Mian Muhammad Abbas that Ghulam Hussain drew arms and ammunition from the
Federal Security Force Arniouries at
943. The evidence further shows that, in fact, the Director-General of the Federal Security Force had left the execution of the design almost entirely to Mian Muhammad Abbas, and the latter remained active in this behalf for almost five months, i.e. from June, 1974 to November, 1974 when the present incident happened. There is nothing on the record to show that he made any serious effort to disassociate himself from this conspiracy, except a concession made by the Director-General’s Private Secretary, Ahmad Nawaz Qureshi (P. W. 5) that Mian Abbas had tendered his resignation from the Federal Security Force two or three times but the same was not accepted by the Director-General. In his confessional statement recorded by the Magistrate under section 164 of the Criminal Procedure Code on the 18th of August, 1977, the only threat mentioned by Mian Abbas was that the approver Masood Mahmood had told him that if he did not fall in line, he would find himself on the road. Even Mian Qurban Sadiq Ikram was not able to contend that this meant a threat of instant death; at best it meant removal from the service. It is clear, therefore, that at no stage was Mian Muhammad Abbas faced with a threat of violence to his person, leave alone a threat causing apprehension of instant death. Such being the case, the benefit of the provisions contained in section 94 of the Pakistan Penal Code is not available to this appellant.
944. I may now examine whether
there are any mitigating circum. stances in his favour. Mr. Qurban Sadiq Ikram
submits that almost all the officials of the Federal Security Force, like Welch
(P. W. 4), Ghulam Hussain (P. W. 31) and the confessing accused Arshad Iqbal,
Ghulam Mustafa and Rana Iftikhar Ahmad, have testified to the fact that Masood
and Mahmood was a ruthless Director-General
whose orders and wishes could not be opposed by his subordinates without fear
of consequences; that Masood Mahmood and Prime Minister Zulfiqar Ali Bhutto
were repeatedly insulting and abusing Mian Muhammad Abbas on the delay that was
taking place in the assassination of Ahmad Raza Kasuri; and that in spite of
these threats and insults Mian Muhammad Abbas tried to delay the execution of
the plan for several months ; that he was prepared to disclose all the facts
about the working of the Federal Security Force, including the details of the
present murder, and for this reason he even requested the Investigating Officer
Ch. Abdul Khaliq (P. W. 41) to make him an approver in this case; and even
though he, had retracted his confession during the trial, yet in the end, he
had confessed his guilt during the pendency of this appeal, by admitting all
the facts alleged against him by the prosecution. The learned counsel, finally,
contends that Mian Muhammad Abbas had no motive of his own to murder Ahmad Raza
Kasuri or his father, and that at the time of the occurrence he was an elderly
man of 61 years of age. He submits that Mian Muhammad Abbas is not only now an
old man of 65 years of age but is also a patient of heart disease, factors
which clearly entitled him to leniency in the matter of punishment. In support
of his submissions the learned counsel has placed reliance on Bodhi alias Faqir
Hussain and 2 others v. The State (P LD 1976 Lab, 1418), and M. Siddique Kharal
v.
945. It is true that Mian Muhammad Abbas is, indeed, an elderly man of 65 years of age and is also possibly suffering from heart disease. At the same time, it is clear that in spite of his experience and maturity, he easily fell in line with the conspiracy to assassinate Ahmad Raza Kasuri and took special steps over a prolonged period of time towards its implementation. I have already pointed out that the only threat mentioned by him or his counsel is that approver Masood Mahmood had told him that if he did not fall in line he would find himself on the road. This kind of threat could hardly influence a man of conscience, who had already attained the age of superannuation in the regular police service, and was enjoying years of extended re-employment in the Federal Security Force. All the evidence points to the fact that he was a willing instrument in carrying out this criminal conspiracy, and it was he who was directly supervising its execution through approver Ghulam Hussain and the confessing accused. In these circumstances I regret I am not in a position to accept the plea raised on behalf of Mian Muhammad Abbas that he deserves to be leniently treated in the matter of sentence. The High Court has imposed a legal sentence, and no compelling reasons have been made out for the Supreme Court to interfere.
CASES OF APPELLANTS GHULAM MUSTAFA, ARSHAD IQBAL AND RANA IFTIKHAR AHMAD
946. On behalf of appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad (In Criminal Appeal No. 13 of 1978) Mr. Irshad Qureshi contended that although they had made confessional statements under section 164 of the Criminal Procedure Code and had stuck to them during the trial, yet they were not guilty of the offences of which they had been convicted by the High Court, for they were protected under section 22 of the Federal Security Force Act, 1973, and sections 76 and 94 of the Pakistan Penal Code. He submitted that as employees of the Federal Security Force they were bound by their oath to obey all orders of their superiors; and had been made to do the unlawful acts in question under coercion and threats of physical violence, besides having been brain-washed to the effect that Ahmad Raza Kasuri was an enemy of the Prime Minister and a traitor to Pakistan. The learned counsel argued that these circumstances were clearly established from the confessions made by these appellants, as well as the replies given by them during the trial under section 342 of the Criminal Procedure Code, and also found support from the statement made by appellant Mian Muhammad Abbas (Exh. DW. 1/1) on 21-7-77 before the Inquiry Officer Arbab Hidayatullah Khan, an O. S. D. in the Establishment Division, describing the illegal activities of the Federal Security Force and the treatment usually meted out to recalcitrant subordinates. Mr. Qureshi
contended that the appellants had no chance or channel of escape, as superior officers of the Federal Security Force did not allow a subordinate to resign from the Force if he had ever been, assigned a secret mission of the nature involved in this case, and they inflicted harsh and illegal punishments if any subordinate showed signs of disobedience. The learned counsel further submitted that it had been brought out in evidence that the approver Ghul am Hussain was supposed to be carrying a handgrenade to-kill . the appellants Arshad Iqbal and Rana Iftikhar Ahmad instantly if they had hesitated in firing on Ahmad Raza Kasuri’s car on the fateful night, and thus they had a reasonable apprehension of instant death. Finally, he submitted that Ghulam Mustafa had not actually taken part in the attack; and the other two appellants were entitled to leniency on the ground of their young age. He stated that at the time of the occurrence Arshad Iqbal was only 19 or 20 years of age, and Rana Iftikhar Ahmad was about 21 years old. thus both of them were not mature enough to resist the pressure of their superiors,
IMMUNITY AVAILA$LA UNDER ,SECTION 22 AF THE FIDERAL SECURITY FORCE ACT, 1973
947. Taking first the question
whether these appellants are in any manner protected by section 22 of the
Federal Security Force Act, 1973, it may be stated that the Federal Security
Force was established .in 1972 under an executive order, and in 1973 the
Federal Security Force Ordinance,. 1973 (X of 1973) was promulgated. This
Ordinance was later replaced by the Federal Security Force Act of the same
year. In accordance with section 2 (j) of the Act every member of the Force has
to sign a Form of Affirmation, as set out in II Schedule to the Act, to the
effect that he shall bear true faith and allegiance to Pakistan and that he
will, as in duty bound, honestly and faithfully serve in the Federal Security
Force and go wherever he may be ordered by air, land or sea, and that he will
observe and obey all commands of any officer set over him even to the peril of
his life. The Roman-Urdu
translation of this Affirmation, included in the same Schedule, makes a
significant change by saying that the employee concerned shall bear true faith
and allegiance to the Government of Pakistan. In the English version the
allegiance is to
948. It was stated at the Bar by Mr. Irshad Qureshi that in the oath prescribed by the authorities before the promulgation of the Federal Security Force Ordinance and the Federal Security Force Act, it was stipulated that members of the Force shall bear true faith and allegiance to the then President of Pakistan by name, namely, Mr. Zulfrqar Ali Bhutto. On behalf of these appellants, who had apparently been enrolled before the promulgation of the Ordinance, their service records were summoned through Abdul Majid (P.W. 4), but no such oath was found present in those documents. It is, therefore, not possible to say whether these appellants were, indeed, under any solemn obligation to render personal allegiance to the then President of Pakistan and for the purpose of the present case must therefore proceed on the basis that these appellants had subscribed to the Form of Affirmation as set out in the 11 Schedule.
949. It is true that in this oath the obligation of the members of the Force is stated to be tq “observe and obey all commands of any Officer set over me even to the peril of my life”, and the qualifying phrase ‘lawful is not used, as has been done in Rule 1228 of the Punjab Police Rules ; but the absence of the adjective `lawful’ cannot make any difference fur the reasons that section 9 of the Act clearly lays down that .
“It shall be the duty of every officer or member of the Force promptly to obey and to execute till orders and warrants lawfully issued to him by any competent authority, to detect and bring offendors to justice; and to apprehend al) persons whom .he is legally- authorised to apprehend and for whose apprehension sufficient grounds exist.”
RE :SECTION 12 CF THE F. S. F. ACCT
950. I also find that in section 12 of the Federal Security Force Act, which deals with punishment for heinous offences committed by an officer or member of the Force, clause (g) (i) makes punishable disobedience of a lawful command of his superior officers. The same phraseology is repeated in clause (v) (i) of section 13 of the Act which deals with punishment for “less heinous offences”.
951. It will be seen, therefore, that the obligation as spelt out in the Form of Affirmation does not extend to obeying illegal or unlawful commands of superior officers. Even if section 9 had not been included in the Act, it is clear, on general principles, that no member of the Federal Security Force could be under an obligation to obey the unlawful commands of his superiors, especially if they directly involve the commission of criminal offences like murder and attempted murder, etc.
952. The immunity or indemnity granted by section 22 of the Act, namely, that “no suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rules or regulations made there under”, cannot for obvious reasons extend to criminal acts executed by the appellants in pursuance of unlawful commands of their superiors. Such acts can never be regarded as acts done in good faith in the execution of their lawful duties
Rs : Application of section 76 CF THE PENAL CODE
953. Let me row examine whether section 76 of the Pakistan Penal Code can be any avail to these applications. This section lays down : ---
“Nothing is an offence which is done by a parson who is, or who by reason of a mistake of .Act and not by reason of a mistake of law in good faith - believes himself to be bound by law to do it.”
954. This section came in for examination by the Lahore High Court as early av,1883 in Niamat Khan end others v. The impress (1883 P R 17) and the observations then made by Rattigan, J. can be reproduced here with advantage :,..: .
“To entitle a person to claim the benefit of section 76 it is necessary to show the existence of a state of facts which would justify the belief in good faith; that the person to whom the order was given was bound by law to obey it. Thus in the case of a soldier, the Penal Code does not recognise the mere duty of blind obedience to the commands of a superior as sufficient to protect him from the penal consequences of his act------Such a construction of the law nay indeed subject the soldier to military penalties, and, in certain cases, place him in the serious dilemma of either refusing to obey an order which he believed to be unjustifiable in fact, thereby rendering himself liable to Military law, or, by obeying it, to subject himself to the general criminal law of the land. But on a balance of considerations the Legislature has deemed it wise for the safety of the community that no special exemption should be allowed to a soldier who commits what would ordinarily be a penal offence from that enjoyed by any other person, who does the same act believing in good faith that he is bound by law to do it.”
955. Similar views were expressed in Queen-.Empress v. Latif Khan (ILR20 Bom. 394), Allahrakhio and another v. The Crown (AIR 1924 Sind 53) and Subs Khan v. The State (P L D 1959 Lath, 541).
956. In order, therefore, to come within the purview of this section, the appellants have to show that they were bound in law, or by reason of a mistake of fact and not by reason of a mistake of law, they, in good faith, believed themselves to be so bound, to obey the orders of their superiors whose object was to embark upon a criminal venture for taking the life of a member of the National Assembly. The only explanation offered by them is that they were acting under the orders of their superiors, but they do not show as to how they regarded these orders as being binding on them in terms of sections 9 and 12 of the Act by which they were clearly governed, or by the Form of Affirmation to which they had subscribed as members of the Federal Security Force. It is clear therefore, that the case of the appellants does not fall within the ambit of section 76 of the Pakistan Penal Code.
RE: APPLICATION OF SECTION 94, P. P. C.
957. As to the application of section 94 of the Pakistan Penal Code, it may be stated at once that its benefit is not available to appellants Arshad Iqbal and Rana Iftikhar Ahmad for the simple reason that they were charged with, and have been found guilty of, the offence of murder. The opening words of the section specifically exclude from its purview the offence of murder and offences against the stage punishable with death. It is, therefore, not necessary to consider the further question whether these two appellants were at any stage threatened with violence, which may have reasonably caused the apprehension of instant death at the time they fired on Ahmad Raza Kasuri’s car, which fire resulted in the death of his father.
958. The case of the third appellant Ghulam Mustafa could fail within the ambit of this section, as he has been convicted of the offence of abetment of murder and not of murder itself, but unfortunately the other requirements of the section are not fulfilled in his case. Apart from the general assertion that he acted under the orders of his superior Mian Muhammad Abbas and that some threats were conveyed to him by Assistant Director Muhammad Abdullah, or that he had been brainwashed by his superiors that Ahmad Raza Kasuri was an enemy of the Prime Minister and a traitor to the country, there is no averment whatsoever that he was, in any manner, threatened with violence causing a reasonable apprehension of instant death when he arranged to obtain weapons for the use of Ghulam Hussain and his assistants under the directions of Mian Muhammad Abbas. There is also nothing to show that he had not of his own accord placed himself in the situation in which he became subject to coercion and pressure from appellant Mian Muhammad Abbas and Assistant Director Abdullah. On this view of the matter even Ghulam Mustafa is not protected by section 94 of the Pakistan Penal Code.
959. Mr. Irshad Qureshi referred
us to some passages in textbooks on Pubic International Law in support of his
contention that the appellants could clot be burdened with criminal liability
as they had acted in obedience to the orders of their superiors, but none of
the statements railed upon by the learned counsel appears to be relevant in the
circumstances of tile case before us. In the first place, we are not dealing
with a case of war crimes, which is the subject discussed in the passages
relied upon by Mr. Qureshi, on the contrary we have before us a case falling.
under the ordinary municipal law of
960. I now proceed to examine whether there are any extenuating circumstances in favour of all or any of these three appellants so as to justify the imposition of the lesser penalty. It has already been stated that, besides narrating the working conditions prevailing in the Federal Security Force under which no subordinate could disobey the orders of his superiors, Mr. Irshad Qureshi has emphasised the fact that appellant Ghulam Mustafa did not participate in the actual killing, and that the part played by him was confined to obtaining weapons, under the orders of Mian Muhammad Abbas for the use of approver Ghulam Hussain Std his mesa. It is also true that these appellants had no motive of their own to do away with Ahmad Raza Kasuri or his father.
961. After giving my anxious consideration to the submissions made on behalf of these three appellants, I am of the view that although they did not have a motive of their own to take the life of Ahmad Raza Kasuri or his father, yet the fact remains that they took various steps, over a prolonged period of time, to implement the criminal design or conspiracy into which they had been inducted b appellant Mian Muhammad Abbas and approver Ghuiam Hussain. Their assertions at the trial or in their confessional statements that otherwise they would have been physically eliminated are not very convincing. They have deliberately acted in taking human life, and there is no reason why they should not be subjected to the normal penalty prescribed for murder and its abetment.
962. As a result of the foregoing discussion, I would dismiss all the three appeals, uphold and confirm the convictions and sentences recorded against the appellants by the High Court, with the modification that in regard to appellants Zulikar Ali Bhutto, Mian Muhammad Abbas and Ghulam WSW& suction 301 of the Pakistan Penal Code will not apply,
Appreciation Of Assistance Rendered By Counsel
963. The arguments In this case were spread over several months, during the course of which learned counsel for both sides gave us valuable assistance in the exposition of difficult questions of criminal law and procedure. The written notes submitted by them were found extremely useful by the Court and showed the extraordinary amount of labour, which had gone into their preparation. We are grateful to the learned counsel for both sides, namely, M/s. Yahya Bakhtiar, Ghulam Ali Memon. D. M. Awan, Muhammad Sharif, Abul Hafiz Lakho, Qurban Sadiq Warn, Muhammad Sadiq Abbasi and Irahad Ahmad Qureshi for the defence, and Messrs Ijaz Hussain Batalvi, M. A. Rehman, Riaz Ahmad add Mahmood A. Shaikh for the State, for their valuable assistance.
DORAID PATEL, J.--These three appeals have been filed against a judgment of the Lahore High Court convicting the appellants for murder and for various other charges. As the particulars of these convictions have been set out in the judgment of my Lord the Chief Justice, I need not refer to them except when relevant, and I will first examine the appeal of Mr. Zulfikar Ali Bhutto (hereinafter called Mr. Bhutto).
The prosecution case against Mr. Bhutto rests on the evidence of Masood Mahmood and Ghulam Hussain. As both these witnesses are approvers, their evidence cannot be accepted without corroboration which implicates Mr. Bhutto in the crimes for which he was tried. Therefore, the prosecution relied on evidence of motive which was given by Mr. Ahmad Raza Kasuri (hereinafter called Mr. Kasuri) and by evidence of Mr. Bhutto’s conduct, because, according to the prosecution, Mr. Bhutto had kept a surveillance on Mr. Kasuri before and after the murder, and because he had interfered with the investigation of the murder of Mr. Kasuri’s father. But evidence of motive is always a weak form of corroboratory evidence. And apart from the evidence about Mr. Bhutto’s alleged interference with the investigation of the murder, the evidence produced by the prosecution about his conduct is of a very equivocal nature, and as it is reasonably capable of an innocent interpretation, it has no corroborative value. Therefore, Mr. Batalvi rightly placed great stress on Mr. Bhutto’s interference m with the investigations. But the witnesses examined in order to prove this plea were Police Officers; who claimed to have interfered with the investigations so effectively that the case was filed as untraced. But this means that these Police Ulcers were accomplices, and as the High Court has placed very great reliance on their evidence, Mr. Yahya Bakhtiar submitted that the learned Judges had violated the principle that the evidence of approvers could not be corroborated by accomplices. In rejecting this plea, the learned Judge relied on the observations of the Bombay High Court in Papa Kamal Khan and others v. Emperor (A I R 1935 Bom. 230) and on a judgment of the Privy Council in Srinivas Mall Bairoliya and another v. Emperor (P L D 1947 P C 141). But neither of these judgments relate to approvers, and as both the judgments relate to convictions for petty offences, the question which requires examination is whether a rule for the corroboration of accomplice evidence in petty offences should be extended to the evidence of approvers in murder cases. Therefore, it is necessary to examine the law about approvers and accomplices in some detail, the moreso, as Mr. Batalvi submitted that the Police Officers, on whose evidence the High Court relied, were not accomplices, because they were only accessories after the fact.
I would first examine the meaning of the word “accomplice”, because there was once a cleavage of opinion between the High Courts of the sub-continent on the precise scope of this word, and Mr. Yahya Bakhtiar and Mr. Batalvi naturally relied on the rulings which supported their respective submissions. In order to appreciate this controversy, it is necessary to bear in mind that the law about accomplices is contained in the Evidence Act and in the Penal Code. As only two sections of the Evidence Act are relevant, I will first examine them.
Section 133 reads ;
“An accomplice shall be a competent witness against an accused person ; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
Section 114 in so far as it is relevant reads;
“The Courts may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct anal public and private business in their relation to the facts of the particular case.
Illustrations
The Court may presume;
(a)---------------------------------------------
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars ;
(c) to (i)-------------------------------------------
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it as to illustration (a)--------- as to illustration (b) -- A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself as to illustration (c) a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating C, and the accounts corroborate each other in such a manner as to render previous concert highly improbable.”
The only provision of the Penal Code which is relevant to the arguments of the learned counsel is section 201. This section prescribes that “Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,” is guilty of an offence under the section.
Now, whilst there is no ambiguity about these sections or about the other provisions of the Penal, Code, such as section 107 which also deals with accomplices, neither of these Statutes define the word accomplice. Therefore, we have to construe it according to its ordinary dictionary meaning, and the Oxford Dictionary defines the word as “an associate in guilt, a partner in crime”. Chambers’ Dictionary defines the word as “an associate in crime”.
Munir in his Law of Evidence (Pakistan Edition ) page 1448 defines the word “accomplice” as--
“An accomplice means a guilty associate or partner in crime, a person who is believed to have participated in the offence, or who, in some way or other, is connected with the offence in question, or who makes admissions of facts showing that he had a conscious hand ire the offence.”
Accomplices, therefore, are persons concerned or associated wit each other or one another, as the case may be, in the crime or crimes committed by them. So if A conspires with B to murder C, or helps B to murder C, A will be an accomplice of B in the murder, and if he has only conspired with A to commit the murder, he will be an accessory before the fact within the meaning of section 107 of the Penal Code. But if he has joined B in killing C, he will be an accessory at the fact within the meaning of section 107. But, if A is merely present at the murder, the question whether he is an accomplice or not will depend on the circumstances of the case. There are times when presence speaks, and a man may help in the commission of a crime by his presence at the scene of the crime. But if he is an involuntary spectator of the crime, he will not be an accomplice merely because he fails to report the crime to the Police. This failure to report the crime may be an offence punishable under the law, but because he has not acted in pre-concert with the criminal, he does not have the mens rea, which is essential to the crime of being an accomplice.
I would now turn to another obvious example which is very relevant to these appeals. People seldom commit crimes with the intention of being caught, and many crimes would not be committed, if the criminals were not in a position to attempt to destroy traces of the offence committed. In other words having committed a crime, they commit the further crime of destroying evidence of the crime committed by them. So in the hypothetical example which I was considering, if D helps B to conceal evidence of C’s murder by burying C’s corpse secretly, he will be an accomplice of B because a man who helps to conceal the corpse of a man, who is murdered cannot but know that he is concealing evidence of a crime. But, if, for example, A steals B’s jewellery and C carries it for A to a place where it is not detected, although C will have helped in the theft committed by A he will be an accomplice only if he knew that the jewellery carried by him for A was stolen, and she will not ‘be an accomplice if he did not know that the property carried by him was stolen property. Therefore, the question will always be of the guilty intention and no person can be an accomplice without the mens rea.
I used the expressions accessory before the fact and at the fact. They are expressions borrowed from the common law and in the hypothetical case in which D helps B to bury C’s corpse, D would be an accessory after the fact and would be liable to imprisonment “of either description for a term which may extend to seven years...” under section 201 of the Penal Code. Now the succession of Police Officers examined by the prosecution to prove that Mr. Bhutto had, through their connivance, suppressed evidence of the murder of Mr. Kasuri’s father, had, on their own admissions, committed offences under section 201 of the Penal Code. Therefore, they were accomplices. But, according to Mr. Batalvi, they were not accomplices, because the doctrine of accessories after the fact does not find any place in the Evidence Act, and as it” was a peculiarity of the English common law, learned counsel’s submission was that it should not be followed in Pakistan.
I regret my inability to agree with this submission. In the first place, the law of accomplices is also container in the Penal Code. Secondly, the Oxford Dictionary defines the word accessory as “aiding in a crime”. So an accessory before the fact is a person, who helps in the planning of a crime, and if he is an accomplice, why should a person who helps the criminal after the performance of the main crime not be treated as an accomplice ? Additionally, our law of accomplices is borrowed from the English common law. This was first pointed out by the Calcutta High Curt more than a hundred years ago in R. v. Elahe Buksh (5 W R 80 (Cr.)) and the view of the Calcutta High Court was expressly approved by the Privy Council in Bhuboni Sahu v. The King (P L D 1949 C 90). Sir Beaumont, C. J., who delivered the judgment of the Board, observed “the law in India, therefore is substantially the same on the subject as the law in England, although the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase “corroborated in material particulars” in illustration (b) to section 114 (of the Evidence Act)”. As our law of accomplices is substantially the same as the English law, there is no reason why the English doctrine of an accessory after the fact should not be applicable to our conditions, and on the contrary, provisions like sections 107 and 201 of the Penal Code having been enacted in order to give effect to the English doctrine, but in the manner and to the extent specified in these provisions, therefore, Mr. Batalvi’s submission does less than justice to the long and exhaustive labours of the Law Commissioners. As this is not the place for examining the history of the Penal Code, I would only quote here a passage from Dr. H. S. Gour’s Penal Law of India, 9th Edition, page 1624 on the history of section 201 and the connected sections;
“Aiders and abettors have been classed in English Law as accessories before the fact, accessories at the fact, and accessories after the fact. The first two are reached by the Code under the law of abetment. Accessories after the fact were dealt with by the Law Commissioners as “subsequent abettors” but these last were swept away by the English Law Commissioners from the list of abettors. “There seems no reason”, they said, “for -o„tir,u’f19 the provisions as to accessories after the fact, the offence of parties falling within the description at present, being for the most part referable to the class of offences against public justice. The Law Commissioners acceded to this view and provisions relating to subsequent abetment were deleted from the chapter on abetment and the offences so available were distributed over the other parts of the Code. This section (namely section 201); with its illustration formed section 106 of the original Bill, and it was a section under the chapter on abetment. Its transposition to this place (i.e. section 201) was effected in pursuance of the view that there was no seasonable justification for the retention of the tripartite division of accession of English law.”
The learned author then proceeds to discus the extent to which the common law rules about accessories after the fact have been enacted in the Penal Code. This history of the section resolves all doubts about question whether English rule of accessories after the fact should be followed by our Courts or not. It must be followed, but only to the extent and in the manner specified in the Penal Code, and I venture to think that the cleavage of opinion on this question, which once existed between the High Courts of the sub-continent, would not have occurred if the Courts had examined the history of the section. And it is very surprising that this cleavage of opinion persisted, despite the judgment of the Privy Council in Mahadeo v. The King (AIR 1936 P C 242). There a conviction for murder was set aside because it was based on the uncorroborated testimony of one Sukraj, and as to his role in what happened after the homicide, the Privy Council observed : “The appellant, and Sukraj removed the body from under the tree and hid it in broken ground in the bush.” Then, as to the question whether the witness was an accomplice, the Privy Council observed;
“It is well settled that the evidence of an accessory which Sukraj plainly was on his own showing, must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused’s implication in it and further that evidence of one accomplice is not available as corroboration of another.”
Mr. Batalvi attempted to distinguish this authority on the ground that Sukraj had been charged for the homicide by the prosecution. Nothing turns on this distinction, because the prosecution cannot defeat the law and convert an accomplice into an ordinary witness by not prosecuting him under section 201, I.P.C In any case, the question is of the ratio of the Privy Council’s judgment, and the Privy Council’s observations which. I quoted are very clear.
After this pronouncement by the Privy Council, the question whether an accessory after the fact was an accomplice was re-examined by the High Courts, and I would only refer here to the leading case of Ismail v. Emperor (A I R 1947 Lab. 220) because it is a judgment of the Lahore High Court. The learned Judge observed in paragraph 14 of judgment;
“The expression `accomplice’ has not been defined in the Evidence Act, but there can be little doubt that it means a person who knowingly of voluntarily co-operates with or aids and assists another in the commission of a crime. The expression obviously includes principals in the first and second degree. In the case in A I R 1936 P C 242 their Lordships of the Privy Council held that the expression is wide enough to include persons who are known to the English law as accessories after the fact. An accessory after the fact is one who, knowing a ‘felony to have been committed, receives, relieves, comforts or assists the felon. Three conditions must unite to render one an accessory after the fact ; (1) the felony must be complete ; (2) the accessory must have knowledge that the principal committed the felony ; and (3) the accessory must harbour or assist the principal felon. Mere acts of charity which relieve or comfort a felon, but do not hinder his apprehension and conviction nor aid his escape, do not render one an accessory after the facto (4 Blackstone’s Commentaries, p. 38). He must be proved to have done some act to assist the felon personally . . . To render a person an accomplice his participation in the crime must be criminally corrupt.”
As these observations state the correct law, a further examination of the. question is hardly necessary. But as the learned Judges of the Lahore High Court have not followed the very able judgment (I say so with respect) of their own Court, I would examine Mr. Batalvi’s attempt to defend the view of the learned Judges. Learned counsel only relied on the judgments reported in Emperor v. Percy Henry Burn (4 I.C 268 (Bom.)), in Narain Chandra Biswas and others v. Emperor (A I R 1936 Cal. 101) ; in Nga Pauk v. The King (A I R 1937 Rang. 513), in S A. Sattar Khan and others v The Crown (A I R 1939 Mad. 283), in Jagannath v. Emperor (A I R 1942 Oudh 221) ; in Ghudo and another v. Emperor (A I R 1945 Nag . 143) and in Crown v. Ghulam Rasul and others (P L D 1950 Lah.).
I would begin with the
The facts in Jagannath’s case were similar to Ghulam Rasul’s case. The witness was the driver of a vehicle which plied for hire. He was engaged by two persons who were complete strangers to him. During the course of the journey, they told him to stop. He stopped his vehicle. The strangers got down and robbed two cyclists who were passing. Because the witness did not report the robbery till the next day, his evidence was challenged on the ground that he was an accomplice. This plea was rightly ‘rejected because the witness was an involuntary spectator of a crime.
The
Next as to the
clear from the judgment, they were guilty of very petty offences. There is no analogy between such accomplices, and accomplices who, being Police Officers, destroy evidence of a murder, therefore, this judgment is not relevant to the instant case.
However, the
The facts in this case were that the appellant had carried on an affair with a female servant, and because she attempted to blackmail him, he murdered her. Another servant of his, a boy of about 16 or 18 years, one Velappa saw the murder, and the prosecution case was based solely on his evidence and on evidence of motive. The Sessions Judge who tried the case held that Velappa had helped the appellant to conceal the corpse of the murdered woman and had falsely denied having thus aided the appellant. He, therefore, convicted the appellant, who challenged his conviction in an appeal in the Madras High Court. Ayyar, OCJ, had doubts about Velappa’s role in the occurrence, but observed that “in dealing with this case it is perhaps better to proceed as if Velappa had assisted the accused in the way supposed, though I cannot say T believe he did so assist”. Later on Ayyar, OCJ, repeated his doubts about the precise role played by Velappa in the occurrence, and this doubt escaped the attention of the learned Judges who have treated the judgment as an authority for the proposition that an accessory after the fact can never be an accomplice. So, I would emphasize here that if Velappa did not assist the appellant, in concealing evidence of his crime he was not an accomplice, but if he did assist the appellant, he was an accomplice and was also not a witness of truth and the view taken by Ayyar, OCJ, would be contrary to the law declared by this Court in Mumtazuddin v. The State (P L D 1978 S C 11).
Reverting however to the judgment of Ayyar, OCJ, despite his doubts about the precise role of Velappa in the occurrence, he examined the appeal on the assumption that Velappa had helped the appellant to conceal the body of the murdered woman, therefore, the question was whether Velappa was an accomplice and whether a conviction could be based on Velappa’s evidence alone. Ayyar, OCJ, held, on the basis of the judgments reported in Rex v. Boyes (9 Cox C C 32) and Rex v. Hargrave (172 E R 925), that the appellant could be convicted on Velappa’s uncorroborated testimony. Secondly, without examining the history of the section, Ayyar, OCJ, observed that Velappa “might be indictable under section 201 of the Penal Code for the concealment of the body”, but that as the appellant could not be tried under this section, Velappa was not an accomplice. Thirdly, Ayyar, OCJ, held that although Velappa was guilty under section 202 of the Penal Cole for not having reported the murder, this did not make him an accomplice either. Accordingly, he dismissed the ‘appeal with Ayyangar, J., concurring with him, while Boddam, J., did not.
As all the three grounds for
dismissing the appeal support Mr. Batalvi’s arguments, it is necessary to
examine them, and as to the last ground, I would refer to the judgment of the
Indian Supreme Court in Vemireddy Satyanarayan Reddy and others State of
Hyderabad (B L D 1956 S C (Ind.) 280). The convictions in this case were for
murder and the prosecution case rested on the uncorroborated testimony of a
young boy, who was a servant of the appellant at the relevant time. Be had
neither participated in the murder nor helped in any way in concealing evidence
of the murder, but he had failed to report the murder and had continued to work
for sometime with the murderers. Therefore, it was contended that he was an
accomplice and that the convictions were bad because they were based on the
uncorroborated testimony of an accomplice. The learned Judges of the Indian
Supreme Court rightly held (I say so with respect) that the witness was not accomplice
merely because of his failure to report the murder, but nonetheless, they were
of the view that the evidence of such a witness stood more or less on the same
footing as that of an accomplice and that it was not fit to be accepted without
corroboration. Accordingly, they set aside the convictions and allowed the
appeals. Thus it will be seen that the premise on which Ayyar, OCJ. based his
view has ceased to be a good law even in
T now turn to the question whether Ayyar, OCJ., laid down the correct law in applying the rule in Rex v. Boyes and in Rex v. Hargrave to accomplice evidence in a murder case. Both these cases were decided about the middle of the last century and are very badly reported cases. In Rex v. Hargrave, the prosecution was for manslaughter. All that the report states is that the victim died in a prize fight, and as the prosecution case rested on the evidence of a witness who had watched the prize fight, his evidence was challenged on the ground that he was an accomplice. This plea was rejected, but the report of the judgment does not state why this plea was rejected, and it does not even give any particulars of the prize fight. However, from a reference to this judgment in the judgment of Hawkin, J., in Queen v. Concy and others (8 Q B D 534). I find that the prize fight which Hargrave watched was a boxing match. And as death occurs very seldom in a boxing match, there is no analogy whatever between a person watching a boxing match and a person helping in the commission of a murder by burying the corpse of the murdered man, and even on the footing that the witness in this English case had encouraged the boxing match by his presence the offence committed by him was so trivial that it hardly reacted against his veracity, therefore, to equate his position with that of Velappa was, in my humble opinion, to beg the question.
I now turn to the judgment reported in Rex v. Boyes. The respondent had stood for the parliamentary election of 1859 and was prosecuted for obtaining votes by bribing the voters. It would appear from the judgment that the respondent was ‘separately tried for the bribes paid to different voters with the result that the charge against him in each case rested on the uncorroborated testimony of the voter who had received a bribe. The respondent submitted that a voter who had received a bribe was a self-confessed accomplice, therefore, he could not be convicted on the uncorroborated evidence of an accomplice. The direction given to the jury by the Judge on this charge was that it could convict the respondent on the evidence of a solitary voter if it was satisfied that the witness was speaking the truth. And as to the legal plea advanced by the respondent, the learned Judge said in his direction to the jury-------------
“Is there any law which prohibits a jury from believing a man who spoke the truth merely because he is not corroborated ? I know of none. I know of no rule of law myself, but there is a rule of practice which has become so hallowed as to be deserving of respect : I believe these are the very words of Lord Abinger, it deserves to have all the reverence of the law.”
In view of the direction that the rule about corroboration was not a rule of law, the jury convicted the respondent, who challenged his conviction in an appeal, but the appeal was dismissed on the short ground that there was no error in the Judge’s direction to the jury. Now, under the law as it stood in 1861, there was no error in the direction to the jury which I have quoted, but much water has flown under the bridges since 1861 and in Davies v. Director of Public Prosecutions (1954 A C 378), the House of Lords held that this rule of corroboration about accomplice evidence had hardened into a rule of law. I may also observe here that there has been a parallel development in the Jurisprudence of the sub-continent, and therefore once again the promise on which Ayyar, OCJ., based his conclusion has ceased to be a good law.
Additionally, in applying the rule in this English case to Rama swami’s case, Ayyar, OCJ., assumed that corroboration, which was sufficient to corroborate accomplice evidence in a bribery case, would also be sufficient to corroborate accomplice evidence in a murder case. With the utmost respect, I am not able to agree with this view, and I will presently explain why.
I now turn to the ground given by
Ayyar, OCJ., for holding that Velappa was not an accomplice. As Velappa was
guilty under section 201, I.P.C. and as the learned Judge thought that
Ramaswami could not be prosecuted under this section, he held that Velappa was
not an accomplice because he had-not
helped Ramaswami in the murder committed by him. However, Ramaswami had not
only committed a murder, but he had also instigated Velappa to commit an
offence under section 201, I.P.C. therefore, he was guilty under section 107
read with section 201 of the Penal Code, whilst Velappa was guilty only under
section 201, so Velappa should have been tried with Ramaswami. But merely
because the prosecution did not, it could not take advantage of its own wrong
in not prosecuting him and then claiming that he was not an accomplice.
Additionally, the question is of the validity of the premise on which Ayyar,
OCJ., based his view that Ramaswami could not be tried for concealing evidence
of murder under section 201, I.P.C. even though he had concealed evidence of a
murder. On the ground that the view of Ayyar, OCJ., was obiter, it was
overruled by ,a Division Bench of the same High Court in Chinna Gangappa v.
Emperor (A I R 1930 Mad. 870). Additionally, Mr. Yahya Bakhtiar submitted that
the view of Ayyar, OCJ., was inconsistent with that of the Privy Council in
Begu and others v. Emperor (AIR 1925 P C 130). Mr. Batalvi submitted that this
judgment was distinguishable. Even if it is, the question whether a person
charged for murder could also be tried under section 201 was examined by the
Indian Supreme Court in Kalawati and another v. The State of
“Section 201 is not restricted to the case of a person who screens the actual offender ; it can be applied even to a person guilty of the main offence and under section 201.”
This means that the third premise
on which the view of Ayyar, OCJ., was based has ceased to be good law in
Next, as to the
I now turn to the question for the principles for evaluating the evidence of accomplices, and we had very lengthy arguments on tile question whether the evidence of an approver had to pass the scrutiny of two tests before it could be accepted. Mr. Yahya Bakhtiar relied on the following passage by Munir in his Law of Evidence (Pakistan Edition) at page 1429;
“The appreciation of an approver’s evidence has to satisfy a double test. The first initial test is that his evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test, which still remains to be applied, is that the approver’s evidence must receive sufficient corroboration.”
The evidence of an ordinary witness does not require corroboration if he is found to be reliable, but as the evidence of an accomplice always) requires corroboration, it follows that it has to pass a double test, so M that even when it has passed the test that it is reliable, it still cannot 3 be accepted Without corroboration. Therefore, I cannot but express) my surprise at the very lengthy arguments addressed by the learned counsel on this question, and in my opinion, what is called the double test is nothing but the corollary of the principle that the evidence of an accomplice is presumed to be unreliable, therefore, the real question for determination is whether this presumption against the veracity of an accomplice is justified.
Although Mr. Batalvi did not go to the length of contending that the prosecution was not justified, he wanted us to whittle it down, because unless we do so, the prosecution must fail. On the other hand, Mr. Yahya Bakhtiar wanted us to stand fast to this presumption, and as his plea is supported by judgments going back to almost a couple of centuries, I am somewhat reluctant to rush in where Judges far wiser than me have feared to tread, so I would turn to the reasons why Judges have, for generations, treated the evidence of accomplices as unreliable. The judgments on this question are legion, but as the learned Judges have, in the judgment under appeal, assessed the evidence of the two approvers Inter alia on the basis of the obiter dicta in Kamalkhan’s case and as that was a bribery case, I would begin with an earlier and much more well-considered judgment of the Bombay High Court in Queen v. Maganlal and Motilal (IT L R 14 Bom. 10).
The appellants in this leading case of the Bombay High Court wer8 Government classers, who had been convicted for taking bribes from villagers, who said that the classers had threatened to raise their assessment and harass them unless they were paid bribes. As the convictions of the appellants were based solely on the evidence of these persons, the appellants had resisted their prosecution on the ground that a conviction could not be based on the uncorroborated evidence of accomplices. As this plea was rejected by both the lower Courts, the appellants challenged their conviction in the High Court. As the appeals were allowed, the learned Judges explained why the evidence of accomplices had always been treated as untrustworthy and it would be sufficient to refer here to the judgment of Scott, J., who observed at page 119;
“Accomplice evidence is held untrustworthy for, three reasons :(1) because an accomplice is likely to swear falsely in order to shift the guilt from himself ; (2) because an accomplice, as a participator in crime and consequently an immoral person, is likely to disregard the. sanction of an oath ; and (3) because he gives his evidence under promise of a pardon, or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally ; and this hope would lead him to favour the prosecution.”
I agree with these observations about the temptations which render the evidence of an accomplice untrustworthy, and of the three temptations noted by Scott, J., the last is the strongest. But an approver is an accomplice who has been granted a pardon, and as the prosecution relies on the evidence of two approvers, can it be said that the evidence of an approver stands on a higher footing than that of other types of accomplices, because he has been pardoned ? I do not think so because an approver’s fate remains uncertain until the end of the trial, as his pardon. can be cancelled at any time during the pendency of the trial under section 339 of the Criminal Procedure Code. Therefore, Robert, Ct:J., observed in Nga Aung Pe v. Emperor (A I R 1937 Rang. 209) “if the accomplice is an approver and gives his evidence under express promise of a pardon ...he may...be likely to favour the prosecution and therein to exceed the bounds of truth.” An even stronger case is the judgment of the Bombay High Court in Ai’lisab Rajesab v. Emperor (A I R 1933 Bom. 24). The question in this case was whether the evidence of an accomplice who had “pleaded guilty, was convicted and sentenced and then put in the witness-box” required corroboration, and the Sessions Judge was of the view that it did riot, because “there is no serious allegation of enmity between the witnesses and the accused”. And this is the very plea advanced in the ins-cant case by Mr. Batalvi. But, Beaumont, C.J., held that the evidence of the accused required corroboration, although he had been sentenced as “even after sentence he may have had in mind that if he helped the prosecution his sentence might be reduced”. I agree with this view and generally the evidence of an approver is more tainted than that of an accomplice, who is not an approver, for obvious reasons which have been repeatedly stressed by this Court. Thus, for example, in Ishaq v. The Crown (P L D 1954 F C 335) Munir, C.J., observed
“As distinguished from a pretended confederate who associates with wrongdoers in order to obtain evidence, an accomplice is a moral wretch who not only publicly boasts of his own part in the crime which is often committed in his interests and at his instigation but who, prompted by a mean desire to save his own skin, shamelessly betrays his companions in the dock and who has no scruples either in exaggerating their part in the crime or in substitution in a wellthought out narrative a completely innocent man for a friend whom he is still anxious to save.”
The emphasis by the learned Chief Justice in this passage is on the danger that because an approver has no scruples, he will have no hesitation in substituting “In a well-thought out narrative a completely innocent man for a friend whom he is still anxious to save.” This warning has been given by eminent Judges for generations, and unless we are so presumptuous as to think that we have the monopoly of wisdom, we must not disregard this warning. And that means that the rule of corroboration laid down by this Court in Nazir and others v. The State ((1962) 2 P S C R 140) must not be extended to accomplice evidence and this was expressly clarified in Nazir’s case itself. The Court drew a distinction between accomplice evidence and other types of evidence. It refused to equate the evidence of an interested witness with that of an accomplice and Kaikaus, J., observed with reference to accomplice evidence :-
“It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration.”
I have quoted this passage at some length, because at one stage of the arguments Mr. Batalvi submitted that the rules about the corroboration of accomplice evidence had been evolved by Judges and could be modified by Judges and the submission was that these rules were too strict with the result that the guilty could go unpunished. Learned counsel appeared to think that these rules about corroboration could be assimilated to the rule about corroboration laid down in Nazir’s case, but as this passage shows the Judges in Nazir’s case held that the rule for corroboration of interested witnesses was different from the rule for the corroboration of the evidence of accomplices. And I see no reason whatever for dissenting from this Court’s view in Nazir’s case.
I, however, agree with the learned counsel that the nature and extent of the corroboration necessary in a case must depend upon the circumstances of the case and especially the nature of the offence and the degree of suspicion attaching to the accomplice’s evidence. Thus for example, as between accomplices who have confessed to a murder, one of the accomplices may have been guilty of offences other than those for which he has been pardoned Such an accomplice will be under a far greater temptation than the other accomplice to give false evidence, because of the, hope that he might escape his trial for the other offences committed by him if he gives evidence on lines which favours the prosecution case. On the other hand, there might be a very extraordinary case in which an accomplice has confessed his crime and become an approver not in order to save his own skin, but because he has renounced the way of violence, therefore, there cannot be any universal or inflexible rule about the nature of the corroboratory evidence necessary for accepting the evidence of approvers and accomplices. As was very aptly observed nearly fifty years ago in Muhammad Fanah v. Emperor (A I R 1934 Sind 78 (2)), the force of the presumption that the evidence of an accomplice is unreliable, “varies as the malice to be imputed to the deponent. Whatever attenuates the wickedness of the accomplice tends at the same time to diminish the presumption that he will not acknowledge and confess (the truth) with sincerity.”
I would now turn to some of the other circumstances relevant to the appreciation of evidence of accomplices. As the case before us is of murder even though murder is a heinous offence, there are murders and murders, and the moral turpitude attached by society to the murder is not irrelevant to the question of the veracity of accomplices, who have participated in it. I would illustrate the point by reference to a type of murder which is still frequent in the tribal areas of the country. As was observed by Fazle Akbar, J. (as he then was) in Ajun Shah v. The Stare (P L D 1967 S C 485) :-----
“It is a matter of tradition and even a family duty (in the tribal areas of the country) to avenge the murder of a father. Such murders are committed in that area out of a sense of honour and self-respect.”
As a murder committed out of a sense of honour does not attract as much social condemnation as an ordinary murder, the evidence of an accomplice in this type of murder would stand on a somewhat higher footing than the evidence of accomplice in an ordinary murder.
Another circumstance relevant to the veracity of an accomplice is the question of his complicity in the crime committed by him. By the nature of things, there is a difference between the veracity of an accomplice who has planned a crime for his own benefit and an accomplice who has been led into the crime on account of some restraint or force, and by force or restraint, I do not mean the degree of force or threats which would entitle the accomplice to the benefit of section 94 of the Penal Code. Thus, for example, in Muhammad Pahah’s case, the accomplice was a tribesman, and, as he had committed the offence on the orders of his Sardar, the learned Judges observed that :.-
“he was coerced and threatened into submission. He is not a criminal of the basest kind. The corroboration necessary to establish his credit will be less than if his complicity in the offence had been voluntary and spontaneous.”
I agree with this passage, but I would clarify here that it is all very well for a village rustic to say that he was overawed by his Sardar or by an official, but it is a very different thing to say that an educated man holding a high office has been overawed by some one higher than him, and that is Masood Mahmood’s claim in the instant case.
I have, therefore, to observe that if the prosecution invites the Court to believe that the evidence of an accomplice does not require strong corroboration, because he was led into the crime on account of some constraint or pressure, the burden of proving this plea is on the prosecution, and this burden cannot be discharged by the bare testimony of the accomplice himself. This is for the obvious reason that an accomplice’s evidence is, presumed to be unreliable, and therefore, if the Court were to accept the Ipse dixit of an accomplice that he was threatened into committing the crime, it would be flouting the rule that the evidence of an accomplice cannot be accepted without corroboration. The law on this point is too well settled to require recapitulation and I would only refer to the last of a long line of authorities on this point. In Bhuboni Sahu v. The King (AIR 149 P C, 257), Sir John Beaumont observed;
“An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition.”
. Now, the principle that an accomplice cannot corroborate himself and that tainted evidence does not lose its taint by repetition necessarily reacts on the question of the number of witnesses which the prosecution is required to produce in order to prove its case. Mr. Batalvi stated that the prosecution was not required to produce all the witnesses available to it. That could be so in an ordinary case, and the judgments on which he relied related to ordinary cases. But the position is quite different when the prosecution relies on the evidence of accomplices. In such cases when independent evidence is available to corroborate any statement made by an accomplice which is material .to the prosecution case, then the prosecution must produce that independent evidence, and the failure to do so would be fatal to that part of the evidence of the accomplice which could have been but was not corroborated by independent evidence.
Finally, without wishing to categorise all the circumstances relevant to the appreciation of the evidence of accomplices, I must refer here to one obvious circumstance which reacts on the veracity of accomplices. This is the nature of the offence in the commission of which the accomplice has aided. The more heinous the offence and the greater the moral turpitude attached to it, the greater is the necessity of corroborative evidence. At one end of the scale are offences like murder, and at the other end of. the scale are technical offences, which do not involve any mens rea, and whilst strong corroborative evidence is necessary in the former case, in my humble opinion, the evidence of accomplices in a prosecution for a technical offence, which does not involve any mens rea, does not require any corroboration, because in such cases the evidence of an accomplice does not suffer from any taint, and this is what is enacted in the first part of the illustration to clause (b) of section 114 of the Evidence Act. That is also why the Legislature has not fettered the discretion of tire Courts under section 133 of the Evidence Act, by laying down a rigid rule, and has prescribed that the Court may convict on the evidence of an accomplice.
However, between the heinous offences like murder and technical offences which do not involve any mens rea, there will be a vast range of offences which involve some measure of moral turpitude, and it is with such crimes that the lower Courts are pre-occupied. It is also difficult for the prosecution to procure independent evidence in such cases. Would it, therefore, be safe to dispense with the necessity of corroboration in such cases merely because section 133 leaves it to the discretion of the Court ? In my opinion, the answer to this question can only be in the negative, and it has been so answered by authorities going back to the promulgation of the Evidence Act.
Many of these authorities relate to bribery cases because corruption has always been with us. To give a bribe to a Government servant has been considered a usual thing to do in the sub-continent for centuries, and it is also extremely difficult to produce independent evidence of the payment of bribe because bribes are always paid secretly, therefore, Judges have been asked again and again to relax the rule for the corroboration of the evidence of accomplices in order to ensure that the corrupt do not go unpunished. And as this was Mr. Batalvi’s plea before us, a brief reference to the bribery cases would be useful.
In Queen-Empress v. Maganlal and Motilal to which I referred earlier, the Court held that little or no moral turpitude was attached by society to the payment of bribes, and it also agreed with the submission of the State that it was very difficult to produce independent evidence of the payment of bribes, because such payments were always made in secret, yet it rejected the contention of the State that the rule about corroboration of the evidence of accomplices should be relaxed, and I would only refer here to the judgment of Jardine, J., at page 138, who. Observed;
“I do not think an exception can be made in favour of bribers. because they are not, in my opinion, people of good character, and because, if such exception were allowed, men of previously good character would be exposed to-charges of receiving bribes, without sufficient protection, as happened in the half dozen cases where we reversed the convictions today.
This view was approved and followed by another Division Bench of the Bombay High Court in Queen-Empress v. Chagan Dayaram and another (I L R 14 Bom. 331) and again in Queen-Empress v. Malhar Martand Kulkarni (I L R 26 Mad. 1).
Beginning with the judgments
reported in Queen-Empress
v Deodar Sing and another (I L R 26 Bom. 193) and in Emperor v. Edward William
Smither(A I R 1948 Lah. 27) the
Turning now to our Courts, although the facts were distinguishable, Cornelius, J. (as he then was) took the same view in Emperor v. Anwar Ali (I L R 27 Cal. 144) and this judgment was followed by the High Court of West Pakistan in Ghulam Muhammad v. The Crown (P L D 1957 Kar. 410), and the same view was taken by. Hamoodur Rehman, J. (as he then was) in Osimuddin Sarkar v. The State (P L D 1961 Dacca 798 ).
The Bombay High Court had, however, struck a discordant note in Papa Kamalkhan and others v. Emperor and it is this case on which the High Court has relied. The appellants in this case had been convicted on the evidence of persons who had bribed them, and they challenged their convictions on the ground that convictions based on the uncorroborated evidence of accomplices were illegal. The Court was satisfied with the evidence produced by the prosecution to show that the bribe-givers had been forced to give bribes, but the learned Judge observed;
“It is not possible to expect absolutely independent evidence about the payment of a bribe, and a distinction has to be made between persons who have voluntarily paid a bribe to a public servant in order to secure some advantage for themselves, and persons ...who have been compelled- by improper pressure put upon them by a public servant to pay a bribe. In cases of this kind, where the payment of the bribe has not been voluntary, very slight corroboration would be sufficient to make the evidence of such persons admissible against the receiver of the bribe.”
With respect, I agree with the distinction drawn by the learned Judge between persons who have voluntarily paid bribes and those who have been compelled to do so, but I cannot agree with the approach of the learned Judge that the rule about corroboration becomes almost redundant in the case of persons who have paid bribes under pressure, and I would emphasise here that these observations were obiter, because of the express finding that there was ample corroboration of the evidence of the accomplices. Secondly, this obiter is inconsistent with the ratio of the earlier judgments of the Bombay High Court, and I cannot do better than quote here from the judgment of Fulton, J., in Kulkarni’s case at page 197;
“Now the cases of Maganlal and Chagan show beyond doubt that persons who give bribes are accomplices of persons who receive them. They also show that the learned Judges who dealt with those cases felt strongly how unsafe it usually would be to convict public servants of receiving bribes on the uncorroborated evidence of persons who said they had given them. We share that feeling. In this country false accusations are numerous, and public servants who fearlessly discharge their duties are likely to make many enemies. It is, therefore, most necessary for their protection that the Courts shall be vigilant in requiring strong and convincing evidence before nastily accepting charges brought against them. The humbler classes of public servants are especially in need of this protection.”
I respectfully agree with these observations, and I would add that my own experience of the inspection of the subordinate Courts in the Province of Sind has convinced me of the necessity of protecting “public servants who fearlessly discharge their duties” against false charges of bribery, therefore, in my opinion, the obiter dicta in Kamalkhan’s case have gone too far.
In the result, I would hold that except for technical offences, which do not involve any mens rea, the evidence of accomplices (and I am’ now using the word in its widest sense to include approvers) should„ not be accepted without corroboration, but the quantum of the corroborative evidence would depend on the nature of the offence and the complicity of the accomplice in it. And, further, if the rule of corroboration cannot be relaxed in the case of bribery cases, there can be no question whatever of relaxing it in the case of heinous offences, and the instant case is one of a heinous offence.
I would now turn to the question of the nature of the corroborative evidence necessary in prosecutions for heinous offences. I cannot do better than quote a passage from Munir’s Law of Evidence (Pakistan Edition), page 1427;
“As a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case. However, in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver’s statement on material points suggesting a link between accused persons and the crime before such a statement could be accepted as a safe foundation of their conviction. The reason for the rule is obvious. There is always danger of substitution of the guilty by the innocent in such cases and it is realised that it would be extremely risky to act upon the statement of a self confessed criminal who while trying to save his own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in pace of his real accomplice for whom he may have a soft corner.”
Once again the emphasis in this passage is on “the danger of substitution of the guilty by the innocent”, regardless of the question whether the accomplice has any motive to implicate the accused falsely, and the learned author has based his view on a long line of authorities beginning with the classic judgment of Abinger, C. B., in Regina v. Farler (8CAR& PI07);
“No one can hear the case without entertaining a suspicion of the prisoner’s guilt, but the rules of law must be applied to all men alike. It is a practice which deserves all the reverence of law, that Judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice, unless the accomplice is corroborated in some material circumstance. Now, in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. If a man was to break open a house and put a knife to your throat and steal your property, it would be no corroboration that he had stated all the facts correctly, that he had described how the person did put a knife to the throat, and did steal the property. It would not at all tend to show that the party accused participated in it.”
I now turn to the case-law of the sub-continent. Beginning with the judgment in Reg v. Budhu Nanku and others (I L R 1 Bom. 475), the Bombay High Court has consistently followed the view in Faler’s case. The Calcutta High Court took the same view in Queen-Empress v. Bepin Blswas sued others (I L R 10 Cal. 970), and observed at page 973 :-----
“Nothing is-easier for a man than to narrate events with accuracy, and yet more, when coming to describe the acts of a particular person, to change his personality so as to exculpate a guilty friend, and to implicate an innocent person or any enemy.”
All the High Courts of the sub-continent have followed
this view of the
“‘But the mere fact that the approver’s story is a very probable one, is no reason for dispensing with the rule that such evidence requires independent corroboration. That proposition was acted upon recently by this Court in Emperor v Allisab A I R 1933 Bom. 24 where it was laid down as a definite rule of prudence that the evidence of an accomplice should not be acted upon unless corroborated as against the particular accused in material respects and that rule should be applied however little reason there was to doubt the approver’s story. I have no doubt that the strict application of that rule does sometimes result in a guilty person being acquitted, and this may be one of those cases. But on the other hand I am quite sure that if the rule were otherwise, the result would frequently be the conviction of innocent persons, because it is so easy for an approver or an accomplice, who is telling story which is in substance true, and therefore, not capable of being shaken in. cross-examination, to introduce into that story the names of innocent persons along with the guilty.”
The next year, Abdul Rashid, J. (as he then was) observed in Mungal Singh v. Emperor (A I R 1934 Lab. 346) at page 347 :-
“As stated above, the direct evidence in the case consists only of the statement of the approver. It is a rule of practice, which has acquired the sanctity of a rule of law, that no conviction should be based on the testimony of an approver, unless it is corroborated in material particulars by independent evidence connecting each of the culprits with the commission of the crime.”
I have referred to this case, because it is the earliest pronouncement of the High Courts of the sub-continent in which it was clarified that the rule of practice about corroboration had hardened into a rule of law.
I now turn to the pronouncement of this Court and I would begin with the judgment of Munir, C. J., in Ishaq v. The Crown (P L D 1970 S C 166)., It was observed at page 343;
“Accomplice evidence is admitted from necessity, it being often impossible, without having recourse to such evidence, to bring the principal offenders to justice. The first reaction of the Court or Jury who are called upon to judge such evidence is a feeling of distrust and suspicion, and for reasons which have been mentioned too often to be repeated here and are all based on the peculiar position that an accomplice occupies, it has in modern times been an almost invariable rule not to act on his evidence, unless it is corroborated in material particulars against the prisoner.”
These observations do not of course mean that the evidence of an accomplice about the details of a crime does not require corroboration. It does, like all other evidence, and generally an accomplice could have no difficulty in giving a correct narrative of the crime, because he has participated in it. But his evidence must satisfy a further test. This test is that it must be “corroborated in material particulars against the prisoner”.
This principle was re-armed in Abdul Khaliq v. The State (P L D 1954 F C 335), whilst in Abdul Maid and another v. The State(P L D 1973 S C 595), this Court, after reviewing all its previous pronouncements, re-affirmed the warning given in Ghulam Qadir v. The State (P L D 1959 S C (Pak.) 377 ), that :------
“There is (in the evidence of accomplices) always danger of substitution of the guilty by the innocent ...and it is realised that it would be extremely risky to act upon the statement of a self. confessed criminal who while trying to save his own skin, might be unscrupulous enough to accept (the) suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner.”
It is not surprising that the superior Courts of other common law countries have also taken the same view, and in Major E. G. Barsay v. State of Bombay (A 1R 1961 S C 1762) at page 1781 the Indian Supreme Court observed;
“The corroboration must be by independent testimony confirming in some material particulars not only that the crime was committed but also that the appellant committed it.”
Thus the law on the question of the corroboration of accomplice’s evidence is clear, consistent and uniform, and as pointed out by Beaumont, C. J., in Shankarshet’s case, even though it “does-result in a guilty person being acquitted...if the rule were otherwise the result would frequently be the conviction of innocent person”.
Mr. Batalvi invited us to relax the rigour of this rule because we had to take judicial notice of what had happened in the country during Mr. Bhutto’s Government. Learned counsel referred to the murder of several leaders of the Opposition and pointed out that the assailants had never been traced. He also referred us to some of the admissions made in evidence by witnesses in the instant case: He then painted a grim picture of how the rule of law had come to an end in the country in the last few years, and submitted that it would be impossible to punish the guilty if we insisted on applying in all its rigour a rule of corroboration laid down in earlier times.
in the his plea has a familiar ring. It has been raised time and again past, because the common `law, in its long evolution, has been through periods of strain as great as any which we have passed through, but this was never treated as a ground for relaxing the rule. However, I will confine myself to the judgments of sub-continent in which this plea was raised.
As Bengal was seething with terrorist activity after the First World War, it was extremely difficult for the prosecution to prove political murders, and in Ambica Charan Roy and others v. Emperor (A I R 1931 Cal. 697) in resisting appeals against convictions of terrorists under section 302, the State appears to have advanced the same plea which Mr. Batalvi made before us, but Rankin, C. J., observed :-
“a man who has been guilty of a crime himself will always be able to relate the facts of the-case and, if the confirmation be only of the truth of that history without identifying the person, that is no corroboration at all ...I cannot think that it is correct reasoning to say that because the charge brought is a charge which it is difficult to prove therefore, the Court may be justified in not insisting upon so high a degree of proof: It does not matter how difficult the charge may be to prove it must be proved, if there is to be a conviction. We have, I think, to look carefully at the evidence to see if there is to be a conviction. We have, I think to look carefully at the evidence to see if there is independent evidence implicating each one of these other accused.”
The same view was taken in Nga
Aung Pe v. Emperor (A I R 1937 Rang. 209), although these appeals arose out of
convictions for murders committed during the rebellion in
As our Court; have fortunately been spared the problems of trying cases of this nature because they have generally gone to tribunals, Mr. Yahya Bakhtiar referred us to the observations of Hamoodur Rehman, J. (as he then was) in Ramzan Ali v. The State (P L D 1967 S C 545), Hamoodur Rehman, J, (as he then was), observed at page 552;
“We are not unmindful of the fact that by reason of the riverine nature of many of the districts of the Province of East Pakistan the incidence of dacoity in the Province is unusually high and that more often than not such crimes remain undetected due largely to the failure of the witnesses to identify the dacoits but at the same time we cannot agree that even these difficulties can furnish any justification for the non-observance of the rules relating to appreciation of evidence in criminal cases or that the same should in any way be relaxed. These, rules have been 14 assigned to secure for accused persons the assurance of a fair and martial trial and practical difficulties notwithstanding the standards which have been laid down for the safe dispensation of criminal justice, cannot be altered or deviated from to meet the difficulties of the investigating agencies in the Province.”
I would re-affirm the view thus taken in Rarnzan Ali’s case, and as there can be no question of relaxing the rigour of the rules about corroboration of the evidence of accomplices (including approvers), I would now examine Masood Mahmood’s evidence in the light of this discussion. Masood Mahmood has confessed his guilt in one of the most heinous crimes known to society, murder, and according to the prosecution, it was not the murder of a tyrant, but a murder instigated by a tyrant to eliminate a public spirited leader, who had the courage to criticise the tyrant. It is also clear from Masood Mahmood’s evidence that he participated in the attempt to murder Mr. Kasuri,l because he did not want to .give up the pomp and power which were the trappings of his office. Therefore, as the murder of 10th November 1974 was one of the basest types of murder, prima facie, the approver’s evidence is not fit to be accepted without strong corroboration. The High Court has, however, taken a different view because the approver said in his evidence that he had been forced to participate in the murder. With all respect to the learned Judges, I find it difficult to believe the plea of the approver. It is not easy to murder a politician who is in the limelight as Mr. Kasuri was, therefore, the mission which Mr. Bhutto had entrusted to the approver was a very delicate mission, and it would have been very stupid on Mr. Bhutto’s part to force the approver to accept such a delicate mission, the moreso, as according to the approver, Mian Abbas had already been entrusted with that mission.
Additionally, as observed by the Privy Council in Bhuboni Sahu’s case, an approver cannot corroborate himself. And as the approver’s evidence on a point so crucial to the prosecution case is completely uncorroborated, it is not fit to be accepted. However, after stating that Masood Mahmood “must have acted under pressure”, the Court observed;
“But as pointed out in Kamal Khan v. Emperor an accomplice is sometimes not a willing participant in the offence, but victim to it”. It was in view of his proposition that it was observed in Srinivas Mail v. Emperor by the Judicial Committee that;
No doubt the evidence of accomplice ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must, however, vary according to the extent and nature of the complicity ; sometimes the accomplice is not a willing participant in the offence, but a victim of it. When the accomplices act under a form of pressure which it would require some firmness t o resist, reliance can be placed on their uncorroborated evidence.”
It is obvious that the learned Judge dissented from the view taken by the Privy Council in Bhuboni Sahu’s case, because of the two judgments referred to by him in this passage. Therefore, I have examined both these judgments in order to find out whether the view taken in them is inconsistent with the dictum of the Privy Council in Bhuboni Sahu’s case. I have found nothing whatever in these judgments to support the view that an approver can corroborate himself, but I would explain here that apart from the fact that both these cases related to accomplices simpliciter and not to approvers, the contention of the accomplices in both the cases was that they had been forced into the crime committed by them, because of the pressure of the accused. So the plea advanced in these cases was similar to Masood Mahmood’s, but, unlike the instant case, both in Kamalkhan’s case and in Srinivas Mall’s case, the prosecution had taken care to prove that the plea of the accomplices about their being forced into the crime was true. Clearly, therefore, both the judgments turned on very different facts. Further, these judgments were distinguishable on another ground. I examined Kamalkhan’s case earlier ; it related to a conviction for bribery. And as I explained, not only is bribery a very petty offence compared to murder, but it is an offence to which society does not unfortunately attach any stigma. Similarly, the offence for which Srinivas Mail was convicted was black-marketing under the Defence of India Rules, and black-marketing, however, obnoxious is a very petty offence compared to murder, and unfortunately society attaches very little opprobrium to it. Therefore, the infirmity in the evidence of the accomplices in both these cases was very slight, and so on this ground also the view taken in these cases had no relevance to the instant case.
However, as rightly submitted by
Mr. Batalvi, the learned Judge was also of the view that the approver’s
evidence did not require strong corroboration, because he had no enmity against
Mr. Bhutto. But, according to the settled law, the question on enmity on the
part of an accomplice is of little relevance to the question of his veracity,
because an accomplice is the type of person who will willingly implicate an
innocent man in order to save his own skin or in order to save a friend. And
the dry submission advanced by Mr.
Batalvi was considered and rejected by this Court in Abdul Qadir v. The State
(P L D 1956 S C (Pak.) 407.). Munir, C. J., who pronounced the judgment of the
“It may be taken as proved that both the approvers were responsible for the murder and that neither of’. them had any special raw reason falsely to accuse the appellant, but we cannot accept the finding of the High Court that neither of them had any motive of his owl: to kill the deceased. It is true that the appellant has not in his defence suggested any motive or the part of either of these accomplices to kill the deceased, ‘out this by itself is an inconclusive circumstance and does not establish that in fact neither of them had any such motive. Motive is a factor which is peculiarly within the knowledge of the actor and a man’s motive in doing a thing may not be known to his most intimate friends just as the prosecution may not know the accused’s motive for a crime. All that can be said on the strength of the record of this case is that the appellant failed to prove or suggest that either of the accomplices had any reason to get rid of the deceased but the appellant’s ignorance of any such motive does not exclude the possibility of a motive having existed though unknown to the appellant This circumstance, therefore, does not have any material corroborative value.”
I am in respectful agreement with these observations and I would re-affirm the law declared by Munir, C. J.
In the result, as Masood Mahmood was an approver, very little turned on the question whether he harboured enmity against Mr. Bhutto or not. But the real question, which should have been examined, was whether, because he was an approver, he was under a temptation to implicate Mr. Bhutto or any other accused in the case. And as observed by Munir in his Law of Evidence (Pakistan Edition), page 1426-----
“There is greater need of corroborative evidence when there is fear in the mind of the accomplice that the failure to establish the prosecution case will lead to his own prosecution.”
That is why I observed earlier that one of the circumstances relevant to the veracity of an approver is the question whether he is likely to be prosecuted for offences other than those for which he has been granted a pardon, and on this point the evidence stares us in the face.
The approver admitted that he was arrested on the day on which Martial Law was proclaimed. He received the order of detention, about a week later, and his confession was recorded after he had been in detention for nearly two months. He admitted that during this period, he had been in almost solitary confinement and that he had been interrogated by a Martial Law team. He was, therefore, crossexamined on the suggestion that he had struck a deal with the Police in order to obtain the release of one Seth Abid, who was both his first cousin and his brother-in-law, The approve admitted but only under the compulsion of persistent cross-examination, that Seth Abid “was before 5th July 1977 a fugitive from the law,” and that as far as he knew his brother-in-law had returned to the country after the proclamation of Martial Law. In this background, the suggestion put to him was that Seth Abid had returned to the country and obtained a pardon as part of a deal tinder which he had agreed to implicate Mr. Bhutto in the murder case. The approver denied the suggestion, and T agree with Mr. Batalvi that Mr. Bhutto’s learned counsel failed to prove this unholy deal between the Police, Seth Abid and the approver. However the fact which is so patent is the prolonged detention of the approver under circumstances which would appear at-first sight to be very highhanded. And as Martial Law was promulgated only to restore law and order and to hold elections, it is obvious that the manner in which the approver was treated would suggest that there were very serious charges against him. The prosecution could have taken the Court into confidence about the reasons for the approver’s prolonged detention. But as it did not, the only inference which can be drawn is that the charges against the approver must have been of an extremely serious nature, and here I would refer to a document Exh. D. W. 1/1 upon which Mr. Batalvi placed very great stress. This was a statement made by Mian Abbas on 21st July 1977 to the Martial Law authorities listing all the misdeeds of Masood Mahmood. Thus, for example, according to Mian Abbas, Masood Mahmood was always dabbling in politics and harassing politicians. Further, according to Mian Abbas, Masood Mahmood was guilty of other grave crimes, but as it is possible that he may be tried for these crimes, I would only observe that these charges against Masood Mahmood are almost as grave as those in the case in which he was granted a pardon.
It was unfortunate that this
aspect of the evidence escaped the attention of the learned Judges of the High
Court, because it is obvious that the approver was under the strongest possible
temptation to give false evidence in order to please the investigation agency.
Therefore, his evidence required stronger corroboration than in the usual sort
of ~ murder case based on the evidence of an approver. And here, there is
another circumstance, not important by itself, to which I would like to refer.
Mr. Batalvi placed very great stress on Welch’s evidence, and submitted that
Welch was a witness of truth and a man of integrity, because he had refused to
carry out the illegal order given to him by the approver for assassinating Mr.
Kasuri in
Thus, according to the evidence produced by the prosecution, Masood Mahmood was not only an approver, but an approver who would have no hesitation whatever in bringing false charges against any one if it suited him.
T now turn to the approver’s evidence about his role in the attempt to murder Mr. Kasuri, and the story begins with an interview with Mr. Waqar Ahmad, the Establishment Secretary who asked him (Masood Mahmood) to accept the post of Director-General, FSF. The approver said that he did not want to accept this post and was forced into accepting it. But as according to Mr. Yahya Bakhtiar, as Mr. Bhutto was not so stupid as to thrust such an important post on a person who was not willing to shoulder the responsibilities of the post, the approver’s evidence began in falsehood and ended in falsehood.
The first limb of Mr. Yahya Bakhtiar’s submission is correct, because the prosecution has not led any evidence to show that there was any dearth of applicants for this post, nor has the prosecution led any evidence to show that Masood Mahmood had some special qualifications for this post. Mr. Batalvi only relied on the approver’s evidence who stated that he had been pressurised and forced into accepting the post by Mr. Waqar Ahmad, by Saeed Ahmad Khan and by Abdul Hamid Bajwa. But, whilst Abdul Hamid Bajwa is dead, Saeed Ahmad Khan did not support the approver’s claim that, he had tried to persuade the approver to accept the post of Director-General, FSF. Therefore, Mr. Yahya Bakhtiar submitted that an adverse inference should be drawn against the prosecution for not examining Mr. Waqar Ahmad, and, that, in any event, the approver’s evidence about what Mr. Waqar Ahmad told him was hit by the rule against hearsay evidence. And I may point out here that we had very lengthy arguments on the question whether the approver’s evidence about his conversation with Mr. Waqar Ahmad was admissible or not. In my humble opinion, nothing turns on the question of the admissibility of the approver’s evidence about what he was told by Mr. Waqar Ahmad. Even if we assume for the sake of argument that this evidence is not hit by the hearsay rule, as submitted by Mr. Batalvi, I am unable to understand how this would help Mr. Batalvi’s submissions. As it was the prosecution’s case that the approver had been pressurised into accepting the post of Director-General, the burden was on the prosecution to prove this plea. And the approver’s evidence was not supported by Saeed Ahmad Khan’s. Further, and this is much more important, as an approver cannot corroborate himself, I agree with Mr. Yahya Bakhtiar that the approver’s evidence about his meeting with Mr. Waqar Ahmad is not fit to be believed, as Mr. Waqar Ahmad was not examined.
The approver said that he was appointed Director-General on 23rd April 1974 and took charge of his duties which he described. The approver then referred to the clash in the National Assembly between Mr. Kasuri and Mr. Bhutto on the 3rd June, 1974 and said that Mr. Bhutto had sent for him “a day or two later”. Mr. Bhutto then had a long meeting with the approver and I will refer to this meeting as the meeting. It is of great importance to the prosecution case, because the question whether the case against Mr. Bhutto falls under section 120-B of the Penal Code or under section 107 of the Penal Code depends on what transpired at the meeting.
According to Mr. Yahya Bakhtiar, the approver evidence about this meeting was a fabrication because no such meeting had taken place. He however also submitted in the alternative that even if the approver’s evidence of the meeting was believed, it did not spell out the ingredients of a conspiracy within the meaning of section 120--B.
As Mr. Batalvi tried very hard to persuade us that the approver’s evidence about the meeting was sufficient to spell out the ingredients of a conspiracy, I would observe that an agreement which comes within the mischief of section 120-B is like any other agreement under’ the Contract Act, except that it is illegal because of its criminal intent. Therefore in order to prove its charge of conspiracy against Mr. Bhutto, the prosecution had to prove that Mr. Bhutto had asked Masood Mahmood to join the conspiracy and that Masood Mahmood had agreed to do so. Mr. Batalvi submitted that an agreement could be proved by words or by conduct or by both. This is correct. But as he v placed very great stress on the approver’s conduct, I may observe that the question of the acceptance of an offer can arise only when there has been an offer, and if Mr. Bhutto did not ask the approver to he him in the conspiracy, the question of inferring the approver’s counsel to joining the alleged conspiracy from his conduct cannot arise.
I now turn to the approver’s evidence about the meeting. It reads;
“He, inter alia, said to me that he was fed up with the obnoxious behaviour of Mr. Ahmad Raza Kasuri and that Mian Mohammad Abbas, an officer of the FSF, know all about his activities. This Officer is an accused in this case. The then Prime Minister further told me that this Officer had already been given directions through my predecessor to get rid of Mr. Ahmad Raza Kasrui. The Prime Minister went on to instruct me that I should ask Mian Mohammad Abbas to get on with the job and to produce the dead body of Mr. Ahmad Raza Kasuri or his body bandaged all over. He said to me that he would hold me personally responsible for the execution of this order. I was naturally shaken on hearing these orders and pleaded with him that execution of these orders would be against my conscience and would certainly be against the dictates of God. The Prime Minister lost his temper and shouted saying that he would have no nonsense from me or, from Mian Mohammad Abbas. Then he raised his voice and said to me “You don’t want Vaqar chasing you again, do you ?” I returned to my office in this perplexed state of mind and called Mian Abbas, .I repeated to him the orders of the Prime Minister verbatim. I was surprised to find that Mian Abbas was the least disturbed. He told me that I was not to worry about it. That he would see that the orders of the Prime Minister would be duly executed.”
There is nothing in this evidence to show that the approver had been asked by Mr. Bhutto whether he would or would not join the alleged conspiracy, and, on the contrary, it is clear from this evidence that Mr. Bhutto gave a series of orders to the approver which the, approver said he had carried out because he was forced to do so. It is also not irrelevant to point out here that the approver’s impression from his conversation with Mr. Bhutto was that Mian Abbas had been given similar orders and further, according to the approver, Mian Abbas had confirmed to him that he had received those orders arid that he would carry them out.
Lengthy arguments were addressed to us on the question whether we should believe the approver’s plea that he had been forced, or pressurised into carrying out Mr. Bhutto’s orders. The necessity of examining this plea would arise only if an offer on Mr. Bhutto’s part to the approver to join him in the conspiracy could be spelt out of the approver’s evidence. But as Mr. Bhutto did not even care to find out whether the approver was willing to help him, there was no question of any meeting of minds which is the essential of any agreement, and as the approver only claims to have carried out the orders given to him, nothing turns on the question whether he carried them out reluctantly or with enthusiasm.
As Mr. Batalvi was conscious of this difficulty in the prosecution case, he tried very hard to persuade us to hold that the approver’s consent to Mr. Bhutto’s offer to join him in the conspiracy could be inferred from the approver’s conduct subsequent to the meeting with Mr. Bhutto, and in this connection, great reliance was placed by Mr. Batalvi on the approver’s claim that he had directed Welch to assassinate Mr. Kasuri in Quetta. But even if we assume that the approver had given any such direction to Welch, the approver’s own evidence about this alleged direction does not throw any light on the question whether he had directed Welch to carry out the murder because of Mr. Bhutto’s instigation or because he had decided to accept Mr. Bhutto’s offer and join him in the conspiracy. And further, as 1 indicated, the question of inferring consent from the approver’s subsequent conduct can arise only if subsequent to the meeting of the approver with Mr. Bhutto, u, Mr. Bhutto had invited him to join the conspiracy. But even the approver does not say so. What he said is to the contrary. Thus, after referring to the meeting, he said “after the Prime Minister had given me these orders, he kept on reminding me and goaded me for their execution.” The word “orders” speaks for itself. The approver then went on to explain how Mr. Bhutto had told him to “take care of Mr. Ahmad Raza Kasuri, who was likely to visit Quetta”. But this evidence too cannot be read to mean that Mr. Bhutto had sought the approver’s consent to the alleged illegal agreement.
Mr. Batalvi then referred us to the evidence of Saeed Ahmad Khan. Now, Saeed Ahmad Khan has said that “in mid 1974”, Mr. Bhutto had told him to remind the approver about the mission entrusted by him (Mr. Bhutto) to the approver. And as Saeed Ahmad Khan also said that he had passed on the message to the approver and that the approver had told him that he would do .the needful, the learned counsel submitted that this corroborated the prosecution case of the conspiracy. The submission is fallacious. Even if we assume that Saeed Ahmad Khan spoke the truth in his evidence, and this is an assumption which I will presently examine, this evidence cannot throw any light on the question whether the approver had committed the murder ors Mr. Bhutto’s orders or because he had voluntarily joined a conspiracy to commit murder.
Next, as Mr. Batalvi submitted that the prosecution case under section 120-B was supported by the evidence of Ghulam Hussain, the other approver, I have examined his evidence also. This approver said that Mian Abbas had sent for him in the beginning of August, 1974 and told him to assassinate Mr. Kasuri, because that “was the order given by Mr: Masood Mahmood, who was the then Director-General, FSF.” This evidence does not even implicate Mr. Bhutto, but, according to the witness; Mian Abbas had called him again on 20th August, 1974 and told him that he had to carry out the assassination mission, because of Masood Mahmood’s orders and “because Mr. Z. A. Bhutto had now started abusing (Masood Mahmood) because of this procrastination”. I will presently show that Ghulam Hussain is a thoroughly dishonest witness, but even if his evidence is believed, though admissible it is really nothing more than hearsay upon hearsay. And, in any event, it does not throw any light on the question whether the prosecution case falls under section 120-B or under section 107 of the Penal Code. Similarly, the other evidence relied upon by Mr. Batalvi, such as the evidence of Fazal Ali and Amir Badshah, the evidence of Exh. P. W. 24/7 the road certificate for the issue of ammunition to Ghulam Hussain, etc., does not throw any light on this question, but, on the other hand, as much of it would be relevant to the question of Mr. Bhutto’s guilt for instigating an attempt on Mr. Kasuri’s life, I would now examine it from this angle.
I referred earlier to Saeed Ahmad Khan’s evidence about his conversation with Mr. Bhutto “in mid 1974”. The High Court was very impressed by this evidence, because it was of the view that Saeed Ahmad Khan was an independent and reliable witness. I will presently examine whether this witness was an independent and reliable witness, but even on the assumption that he was, as Masood’s evidence is full of infirmities, Saeed Ahmad Khan’s evidence would not be sufficient to corroborate it, but as submitted by Mr. Batalvi, it could be a link in a chain of corroboratory evidence. However, as I indicated earlier, Mr. Batalvi placed great reliance on Welch’s evidence, because the approver had said that he had directed Welch to assassinate Mr. Kasuri and Welch had supported this statement, and if true, this evidence could go a long way to support the approver’s evidence on a charge against Mr. Bhutto under section 107 of the Penal Code. So I would reproduce here what the approver said in his examination-in-chief;
“In August, 1974, Mr. Ahmad Raza
Kasuri was sniped at
There is absolutely no ambiguity
about this evidence. It means that the approver had first given his order to
Mr. Welch on the phone from
However, even if we assume that what the approver said in his cross-examination was true, does it improve the prosecution case? Even Mr. Batalvi did not contend that Welch was an expert in carrying out assassinations of well-known politicians, and, further, the approver has admitted, but very reluctantly under the compulsion of crossexamination, that he knew Welch only as a subordinate, because he had met him a few times. He was evasive about the degree of his intimacy with Welch, but Welch was more straightforward in hiisevidence, and he said that he had met the approver only twice before the meeting in which the approver had directed him to assassinate Mr. Kasuri. As Welch is not an approver, it is obvious that his evidence must be preferred to that of an approver, and that means that Masood Mahmood, who was an extremely intelligent man, had directed his subordinate, who was a comparative stranger to him, to carry out the assassination of a political leader. I find this very difficult to believe. However, even if we assume that the. approver was reckless enough to entrust so delicate and secret a mission to a comparative stranger, would he not have given some instructions or some guidelines to that stranger about the manner in which Mr. Kasuri was to be murdered? It is true that Welch did not make any enquiries from the approver about the manner in which he was to carry out the delicate mission entrusted to him, but this was because, according to Welch, he had no intention of murdering Mr. Kasuri. And as Welch claims to have concealed his intentions from the approver, I am not able to believe that the approver would have given, so to say, a blank cheque to his subordinate in a mission for murder.
However, it is not necessary to discuss further Welch’s evidence, because the approver does not even claim that he had told Welch that Mr. Kasuri was to be eliminated on the orders of Mr. Bhutto. That is very important. The approver has taken the sole responsibility in his evidence for this alleged order to Welch, but he was not the type of man who would risk his neck for anybody else, `and, if he had been carrying out Mr. Bhutto’s orders, he would have informed Welch accordingly. Therefore, as he accepted before Welch the sole responsibility for the murder, I do not see how Welch’s evidence can lend any support to the case against Mr. Bhutto even under section 107 of the Penal Code. On the contrary, Welch’s evidence casts a heavy burden on the prosecution to prove that the approver was really acting on Mr. Bhutto’s orders as claimed by him.
Mr. Batalvi also submitted, feebly I think, that Ma,ood Mahmood’s evidence was supported by that of Ghulam Hussain’s evidence about the instructions given to him by Mian Abbas for Mr. kasuri’s murder. But as I explained earlier, this approver’s evidence, though admissible, is really nothing more than double hearsay, because he said what Mian Abbas had told him about what Masood Mahmood had told Mian Abbas. This evidence can help the prosecution case only if we assume that the approver, Ghulam Hussain, spoke the truth about what Mian Abbas had told him, and if we also further assume that Mian Abbas had faithfully conveyed Masood Mahmood’s message to the approver Ghulam Hussain. However, even if we make these two assumptions, this would furnish very slight corroboration of Masood Mahmood’s evidence, because the real question before us is whether Masood Mahmood spoke the truth when he said that he had ordered Mr. Kasuri’s murder on Mr. Bhutto’s orders. Therefore, even Mr. Batalvi did not contend that Ghulam Hussain’s evidence could be anything more than a link in a chain of corroboratory evidence. But the plea that it could be a link in a chain of corroboratory evidence assumes that Ghulam Hussain was speaking the truth. And as he was an approver, his evidence invites suspicion and cannot be believed if it is inconsistent with other evidence.
Now Mian Abbas bad contested the case against him, but he had first admitted his guilt and recorded his judicial confession. He had, however, retracted that confession, but the High Court convicted him and sentenced him’ to death. He then filed an appeal which was admitted. However, sometime after we had commenced hearing these appeals, Mian Abbas again changed his mind, retracted the retraction of hi§ judicial confession and pleaded guilty. In this background, Mr. Batalvi supported the prosecution case against Mian Abbas and submitted that we should onvict him in view of his confession, as the confession, though retracted at one stage, was corroborated by other evidence. Learned counsel was also emphatic that the confession was genuine and he denied that it was exculpatory. No doubt, a conviction can be based, as submitted by learned counsel, on a retracted judicial confession provided it is corroborated. Further in the circumstances discussed, it is clear that the confession is a piece of evidence on which Mr: Bhutto is entitled to rely. But, the confession is completely inconsistent with Ghulam Hussain’s claim about the two meetings with Mian Abbas in which he had been directed to carry -out Mr. Kasuri’s murder. Mian Abbas said in his confession;
“During that time on about 13th May, 1974, D.-G. Sahib had called me and told me that he had to speak to me on a very important matter. In the meantime, some other Officer entered the office and he (D.-G:) became quiet and asked me to go outside. On about lit June 1974, I was called by Director-General in his office and he told me that he has posted Inspector Ghulam Hussain on some very important assignment and asked me to follow that up. This Ghulam Hussain was, sometime earlier, given reward by Director-General for his good work in the National Assembly. T called Ghulam Hussain and on my enquiry he informed me that Director-General has ordered him to do away Ahmad Raza Kasuri.”‘
This confession, on which Mr.
Batalvi wanted us to rely for the purpose of upholding Mian Abbas’s conviction,
is damaging to the prosecution case in more ways than one. Thus, for example,
the approver was emphatic in his evidence that the meeting with Mr. Bhutto was
a couple of days after the Assembly incident of June 1974. T may pause here to
point out that the position thus taken by the approver in his evidence is not
consistent with that taken by hint in his lengthy confession and his equally
lengthy statement under section 337 of the Criminal Procedure Code. In both
these statements, although the approver said that he had been instructed by Mr.
Bhutto at a meeting to assassinate Mr. Kasuri, the approver did not relate this
meeting with the Assembly incident of 3rd June 1974, and Mian Abbas’s
confession would indicate that Masood Mahmood had decided to carry out the plan
to murder Mr. Kasuri as early as 13th May 1974 but this was long before the
meeting between Mr. Bhutto and the approver. Therefore, Mian Abbas’s confession
casts doubt on the approver’s evidence, the moreso, in view of the position
taken by the approver in his earlier statements. Secondly, whilst the approver
was emphatic that he did not know Ghulam Hussain, Mian Abbas was equally
emphatic in his confession that Masood Mahmood had, before the meeting with him
“on about 1st June 1974”, arranged with Ghulam Hussain to carry out the actual
assassination of Mr. Kasuri. And this means that the confession is completely
inconsistent with Ghulam Hussain’s claim that he had been inducted into the
murder plot by Mian Abbas at the meeting in the beginning of August 1974. Therefore,
the question is which of these two conflicting versions of the prosecution case
is to be preferred. As I have no doubt that Ghulam Hussain was not only an
approver but a thoroughly dishonest witness, I have no hesitation in rejecting
his evidence as false. However I will have occasion to examine his evidence
again when I come to the
I would now turn to Mr. Yahya Bakhtiar’s submission that the conduct of the approver Masood Mahmood completely falsified his evidence, and that the learned Judges of the High Court had completely ignored this aspect of the case. In order to appreciate the submission, I would first point out that according to Masood Mahmood’s evidence about the meeting with Mr. Bhutto, he was put incharge of the plans for murdering Mr. Kasuri. And although Mian Abbas was to work under him, Masood Mahmood repeatedly said that he had given only reminders to Mian Abbas to carry out the assassination plan. As according to Masood Mahmood’s evidence, he had never discussed with Mian Abbas the plan for killing Mr. Kasuri, Mr. Yahya Bukttiar submitted that the evidence of the witness was too absurd to be believed. Similarly, as it is the prosecution case that Ghulam Hussain had been selected for the task of killing Mr. Kasuri, Mr. Yahya Bakhtiar submitted that as Masood Mahwood was responsible for the execution of the assassination plans, his evidence that he did not even know Ghulara Hussain was absolutely false.
Taking the second limb of the submission first, however, perfect be the planning of a murder, the implementation of that plan is another matter and as this rested solely on Ghulam Hussain’s ability, it is absolutely impossible for me to believe that Masood Mahmood would not have sent for Ghulam Hussain in order to assess hip ability to carry out so delicate a mission. After all even if Ghulam Hussain had succeeded in murdering Mr. Kasuri, he could have left traces of the murder with consequences fatal to all the assailants, including Masood Mahmood. Thus Masood Mahmood’s fate was in Ghulam Hussain’s hands, and I find it impossible to believe that Masood Mahmood did not know Ghulam Hussain. And I would repeat that I have no hesitation in preferring the version given by Mian Abbas in his confession, the moreso, as this is corroborated by the evidence of Ashiq Hussain Lodhi, who was a totally disinterested witness.
As Mr. Batalvi, however, relied on the view taken by the High Court, I may point out that the learned Judge has observed in his judgment “it is further clear from the evidence of Masood Mahmood that he did not even know Ghulam Hussain P. W. 31. Ghulam Hussain also stated clearly that he had appeared before Masood Mahmood alongwith other candidates on the 20th of August 1974 only at the time of his interview for promotion to the post of Inspector”. I regret my inability to agree with these observations, because apart from Mian Abbas’s confession on which the prosecution relied, as both Masood Mahmood and Ghulam Hussain were approvers, they could not corroborate each other’s evidence. And as Munir puts it in his inimitable language in his Law of Evidence, page 1435;
“Tainted evidence is not made better by being doubled in quantity... It is therefore a rule that one accomplice cannot corroborate or be corroborated by another accomplice, nor can an accomplice corroborate himself.”
Additionally, as indicated earlier, the evidence of these two approvers was inconsistent with that of Ashiq Hussain Lodhi, so I would explain here that this witness was an acting Assistant Director in the FSF, and was on duty at the relevant time in the National Assembly. Now after his father’s murder, Mr. Kasuri used to keep a gun-man with him in the National Assembly for his protection, therefore, Ashiq Hussain Lodhi had submitted a report about this gun-man. He was examined by the prosecution in order to prove his report which he did, and the High Court has relied on this report. But, reverting to the evidence of this witness, as he was on duty in the National Assembly and as Ghulam Hussain was also posted there, he was cross-examined on the question whether he had over seen Masood Mahmood with Ghulam Hussain. The relevant part of his cross-examination reads;
“Mr. Masood Mahmood would give me instructions directly when he visited the National Assembly. He did send for Ghulam Hussain through me once or twice during these days. It is correct that in the end of July 1974 the Director-General sent for Mr. Ghulam Hussain through me and he was closeted with him in his room and the red light on the door was glowing throughout that period.” ‘
Although the witness was re-examined by Mr. Batalvi, he was not put any question about his categorical assertion that Masood Mahmood had met Ghulam Hussain in the building of the National Assembly in July, 1974. But this evidence is fatal to the highly improbable claim of the two approvers that they did not know each other.
However, the High Court rejected
Ashiq Hussain Lodhi’s evidence as false. To say the least, this is somewhat
surprising, because the witness was a prosecution witness, and not only was he
not declared hostile, but Mr. Batalvi had not even re-examined him on his evidence about the meetings between
Masood Mahmood and Ghulam Hussain in the
“Before parting with this case, we cannot help observing that the frequency with which cases are coming up before us wherein formal witnesses, particularly foot constables, are found to be obliging the defence in cross-examination with regard to matters wholly unconnected with the part the witnesses took in the investigation, is causing us some concern. We entirely agree with the observations of one of the learned Judges of the Peshawar High Court in the case of Sikandar Shah v. The State ‘P L D 1965 Pesh. 134 that the obliging concessions made by such witnesses in cross-examination cannot be considered to be of any value.”
The observations about the veracity of foot constables in this passage are no doubt wide, but this Court has repeatedly pointed out that the observations in a criminal case have always to be read with the facts of that case, and the facts in Begu’s case were that the appellant had challenged his conviction, inter alia, on the basis of a statement made in cross-examination by a foot constable by the name of Khuda Bakhsh. This statement had reference to the place where Khuda Bakhsh claimed to have seen the dead body of the murdered man and this statement must have been inconsistent with the ocular evidence, although the judgment does not show how it was inconsistent. Be this as it may, the learned Judges of the High Court disbelieved this statement because they were satisfied that it was false, and this Court agreed with this finding, because in turn it was satisfied that Khuda Bakhsh could not possibly have seen the dead body in the course of his duties. And when a constable, who has nothing to do with the investigations of a case, gives evidence about it, it can generally be presumed that his statement is false. But by the nature of things, such a presumption would be rebuttable. Thus, for example, a constable, who has played only a formal role in the investigation of a murder, may have seen the dead body of the victim, because it was lying near his house. Now in this situation, it would be preposterous to say that the evidence of the constable was false merely because he had played a formal role in the investigation of the murder, and so, although the observations in Begu’s case are rather wide, they have to be understood with reference to the peculiar facts of that case.
Accordingly, on the true ratio of this case, it would have supported the claim of the two approvers that they did not know each other, if Ashiq Hussain Lodhi had not been on duty at the National Assembly, because only then could he have been described as a formal witness. And if he had not been on duty at the National Assembly, I would have treated his evidence with great suspicion in accordance with the ratio of Bagu’s case. But the prosecution itself contends that he was on duty at the National Assembly in 1974, therefore, it is clear that his evidence about the meetings between the two approvers was based on the knowledge acquired by him in the official discharge of his duties, and, with due respect to the learned Judges, Bagu’s case had no relevance whatever to the instant case. In these circumstances, the only question is whether Ashiq Hussain Lodhi was a witness of truth, and Mr. Batalvi was unable to advance any argument which could cast any doubt on the witness’s veracity. I am satisfied that, he was a truthful witness, therefore, I have no doubt that the evidence of the two approvers that they did not know each other is both absurd and false.
I now turn to the first limb of Mr. Yahya Bakhtiar’s submission, and here Mr. Batalvi submitted an explanation which had tine merit at least of ingenuity. The prosecution case is that as Mr. Bhutto had entered into a conspiracy with Mr. Tiwana to murder Mr. Kasuri, Mian Abbas must have drawn up plans for the murder under Mr. Tiwana’s supervision, therefore, on Mr. Tiwana’s retirement, Masood Mahmood took his place in the conspiracy, and so it was not necessary for him to find out from Mian Abbas how he was going to carry out the assassination plan. Assuming for the sake of argument that Masood Mahmood had confidence in Mian Abbas’s ability to plan and to execute the perfect murder, is it credible that Mian Abbas would not have reported to him from time to tine about the progress made by him in his assassination plans ? Again, according to the approver, Mr. Bhutto had been goading him repeatedly about the execution of his orders. If there had been any truth in this story, Masood Mahmood would not have dared to take the risk of incurring, Mr. Bhutto’s wrath by merely giving reminders to Mian Abbas to carry out the murder as speedily as possible. However, if I am wrong, according to the prosecution, the Islamabad incident of 24th August, 1974, was the first attempt to carry out the assassination plan. As it ended in a total fiasco, no body could thereafter have had any confidence in Mian Abbas’s ability to plan and carry out the perfect murder. Therefore, assuming that there had been any truth in the approver’s evidence, after the Islamabad incident, he would have taken charge of the conspiracy himself. But, despite Mr. Bhutto’s goading, he says that he did nothing beyond giving fresh reminders to Mian Abbas, and it’ we are to believe him, he had no knowledge of the Lahore occurrence until the next day when Mr. Bhutto himself informed him about it. I agree with Mr. Yahya Bakhtiar that the approver’s professed ignorance of what Mian Abbas was doing is completely inconsistent with his evidence of the role assigned to him in the conspiracy. And, in my opinion, the approver has resorted to false evidence in order to minimise his role in the murder.
I would also refer here to what the approver said about the Islamabad incident in his confession and in his statement as an approver. In both these statements, he has said;
“It is most likely that the incident of August, 1974 in which Mr. Ahmad Raza Kasuri was sniped at in Islamabad may have been an earlier attempt before the accomplishment of the task resulting in the death of Nawab Muhammad Khan the father of Mr. Ahmad Raza Kasuri at Lahore, instead of Mr. Ahmad Raza Kasuri.”
I am not able to believe this statement, because the witness was one of the senior-most Police Officers in the country, and further as the empties recovered were of a prohibited bore which had been issued to the FSP the recoveries clearly pointed the finger of suspicion at the Police force of which he was head. Therefore, it is absolutely inconceivable that he would riot have made full enquiries into the incident.
But even in his evidence, he said that he only had a “hunch” that this incident was an attempt to implement the plot to murder Mr. Kasuri. Mr. Yahya Bakhtiar submitted that this ignorance falsified the witness’s evidence: It does, and further as Masood Mahmood claims to have been put incharge of the plot to murder Mr. Kasuri I am unable to believe that he did not know whether this attempt on Mr. Kasuri’s life had been made by one of his own Inspectors.
I now turn to Masood Mahmood’s evidence about how he learnt of the murder of Mr. Kasuri’s father. He was with Mr. Bhutto in Multan on the 10th of November 1974 and he said that Mr. Bhutto had telephoned him very early the next morning and told him in very colourful language that Mr. Kasuri’s father had been killed instead of Mr. Kasuri. He also said that he was summoned by Mr. Bhutto shortly afterward and Mr. Bhutto had informed him in the presence of Mr. Sadiq Hussain Qureshi about the murder. The witness and Mr. Bhutto then returned to Rawalpindi. Mr. Bhutto had sent for him again in Rawalpindi and warned him to carry out the assassination plan. But he refused point blank to carry out such illegal and immoral orders, and as Mr. Bhutto could not forget this humiliation, he tried to poison him and kidnap his children from school.
Mr. Batalvi submitted that this evidence furnished corroboration of the approver’s evidence on the charges of conspiracy and abetment. But as this argument overlooks the fundamental principle that an approver cannot corroborate himself, learned counsel submitted that the approver’s evidence was corroborated by documentary evidence such as, TA and DA Bills, which proved that he was in Multan on the 10th and 11th November and had returned to Rawalpindi on 11th of November 1974 I am amazed at this submission. TA and DA Bills cannot throw any light on the question whether the approver had met Mr. Bhutto, and whilst I have no doubt that he must have met Mr. Bhutto, the real question for determination is whether his evidence about his three conversations with Mr. Bhutto was fit to be believed, as there is no reference whatsoever to these conversations in his earlier statements.
I am unable to believe that Masood Mahmood could have forgotten about these three conversations with Mr. Bhutto, if they had really taken place, the moreso, as in the telephonic conversation, Mr. Bhutto had used language too colourful for any one to forget. Secondly, he had spoken on the ordinary telephone, and as the words uttered by him clearly indicated his guilty mind, it is impossible to believe that Mr. Bhutto would have indulged in such an incriminating conversation on the ordinary telephone, especially as he had sent for the approver shortly thereafter. Finally, as to the approver’s claim about his confrontation with Mr. Bhutto in Rawalpindi, if his evidence be true, it would mean that the witness had turned a new leaf and renounced his evil past of crime and murder. But no man could possibly forget an episode in which, according to him, he had confronted a proud tyrant and made, him, in the words of the witness, “pipe down”. Nor could any man forget attempts to kidnap his children or attempt on his life, and according to Masood Mahmood the result of his confrontation with Mr. Bhutto Was gnat attempts were made to kidnap his children and to poison him. Yet not one of these Circumstances have been referred to by the approver in his very lengthy confession and in his equally lengthy statement as an approver. I have no doubt that all this evidence was false and merely reflects the approver’s efforts to bolster up the prosecution case, which he had damaged by falsely reducing his role in the assassination plan.
Finally, on the question of this approver’s conduct there is another circumstance which is difficult to reconcile with the approver’s evidence, as submitted by Mr. Yahya Bakhtiar, and which is also relevant to the question of Mian Abbas’s guilt. This is a statement made by Masood r Mahmood in his cross-examination. The approver said :----
“Mian Abbas was not only promoted to the rank of Director after January 1975 at my instance, but ...he received good reports on his working ----”`
For once I am satisfied that Masood Mahmood’s statement is true, because it is corroborated by his remarks on Mian Abbas’s confidential report for the year 1974. But this necessarily means that Masood Mahmood had promoted Mian Abbas after the fiasco of the Islamabad incident and after the murder of Mr. Kasuri’s father. But, if we are to believe the approver, his role in the occurrence was only that of an errand boy conveying the reminders of the wrathful Prime Minister to Mian Abbas, and it was Mian Abbas, who was masterminding the conspiracy which ended in such utter disaster. Therefore, to say the least, the wrathful Prime Minister could not have cherished favourable sentiments towards Mian Abbas, who was responsible for discrediting him in the public eye, on account of a murder which had failed in its objects, because the victim was not the wrathful Prime Minister’s enemy, but his father. In this background, I find it impossible to believe that Masood Mahmood would have incurred Mr. Bhutto’s wrath by promoting Mian Abbas, if Mian Abbas was really the person who had masterminded the alleged conspiracy. And, it is not irrelevant to point out here that Mian Abbas has, in his confession, only stated that he had conveyed Masood Mahmood’s orders and reminders to Ghulam Hussain. On the whole, this plea is far more consistent with the fact of Mian Abbas’s promotion, and I, agree with Mr. Yahya Bakhtiar that the approver’s conduct in promoting Mian Abbas is inconsistent with his evidence.
Mr. Yahya Bakhtiar then referred us to other discrepancies in Masood Mahmood’s evidence and submitted that no reliance whatever could be placed on it, as this approver was a thoroughly dishonest witness. But as is- obvious from this discussion of the approver’s evidence, I am satisfied that he was a dishonest witness and his evidence cannot be accepted without extremely strong corroboration, therefore, I was struck by the finding of the High Court that the empties recovered from the scene of the murder had been substituted by fake empties on Mr. Bhutto’s instructions. If this finding be correct, it would furnish extremely strong corroboration of Masood Mahmood’s evidence, and as even congenital liars can speak the truth, I will now examine the question whether this finding of the High. Court is correct.
I must however first explain what the prosecution case is abut this theory of empties. Ghulam ‘Hussain, the second approver, said in his evidence that he had, obtained 7.62 min bullets from the FSF armoury in Rawalpindi and that the two ten-guns used in the murder of Mr, Kasuri’s father had been supplied by the third battalion of the FSF in Lahore. In order to corroborate this evidence, the prosecution examined three witnesses. Amir Badshah of the third battalion of the FSF in Lahore, Mohammad Amir and Fazal Ali. These three witnesses supported Ghulam Hussain’s evidence, and similarly the documentary evidence produced by Fazal Ali also supported Ghulam Hussain’s evidence: Next as to what happened after the murder, I will presently examine in detail the theory of the substitution of empties, but it is common ground between the learned counsel that empties had been forwarded to the Inspectorate of Armaments for examination without the ten-guns used in the occurrence, because they had not been recovered. Then, when the case was reopened after the proclamation of Martial Law, the Police reinvestigated the case in 1977. But by this time, it was not possible to identify the two sten-guns, which had been used in the occurrence, according to the prosecution. However, as the third battalion, had only 25 step-guns, the Police forwarded all the 25 ten-guns to the Inspectorate of Armaments, which presumably compared all these sten-guns with all the empties. The report then submitted by the Inspectorate of Armaments has not been produced, but Nadir Hussain Abidi said in his evidence, that it was negative, and Mr. Batalvi admitted that this report had been withheld, because it was negative. I venture to think it would have been better if the prosecution had produced the report and as it has not, the only inference which can be drawn is that none of the empties forwarded for examination matched with any of the step-guns of the third battalion of the FSF in Lahore. Necessarily, this report means that the weapons and ammunition used in the occurrence could not have come from the FSF armoury Rawalpindi, or from the third battalion of the FSF in Lahore, as alleged by the prosecution. But this means not only that Ghulam Hussain has given false evidence, but it also means that the other three witnesses were tutored to give false evidence. Clearly, therefore, the ballistic expert’s report is fatal to the prosecution case, and, in order to overcome this difficulty, the prosecution advanced its theory that the empties had been substituted. And if this theory be true, it would at least not mean that the prosecution had deliberately concocted this evidence. Obviously, this theory of the substitution of empties is crucial to the prosecution case, but if it be true, as I will presently show, the prosecution could have produced a lot of evidence in support of this theory, instead to my astonishment only examined Niazi, the Station House Officerof the Ichhra Police Station.
This witness said in his evidence that he had been directed by Abdul Ahad, D.S.P., on the night of 10th November 1974 to visit the place of occurrence but not to prepare any memo. of the articles which I found at the spot as the name of the Prime Minister bad been mentioned in the F.I.R. I collected 24 empty cartridges from the spot of occurrence from four different places. I indicated those places in the site plait. I recovered lead of a bullet-----I examined the empty cartridges which contained one type of figures, i.e. 661/71 inscribed on the base of each of the 24 empty cartridges...”Next according to the witness, on the night of 11th November 1974 Abdul Ahad attended a meeting at the house of Rao Abdur Rashid, Inspector-General of police, Punjab, and Abdul Ahad had taken the 24 empty cartridges, the lead of the bullet and the cap of the deceased with him. Niazi claims to have accompanied Abdul Ahad on this visit, but to have stayed outside wish the chauffeur of the car. Further. according to Niazi, Abdul Ahad had informed him after the meeting that the Inspector-General of Police had retained the empties as well as the piece of bullet. It is not clear what happened to these empties thereafter. Mr. Yahya Bakhtiar made much of the discrepancies in the evidence of the prosecution witnesses on this aspect of the case, whilst according to Mr. Batalvi nothing turned on these discrepancies. I would only observe here that, according to the prosecution, somehow the empties were taken to Rawalpindi and substituted by fake empties. On this aspect of the case also, the prosecution case rests solely on the evidence of Niazi, who said that Abdul Ahad had left for Rawalpindi on the 13th of November, 1974 and that “he obtained site plan Exh. P.W.34/2 from me. Abdul Ahad returned from Rawalpindi after two or three days ..he showed me a draft with regard to empty cartridges and lead of bullet ...he told me that he had been given the draft from the Prime Minister’s House. The D.S.P. told me to make a copy of that draft. After 1 prepared this copy, the original was taken back... Exh. P.W. 34/4 was prepared by me and bears my signatures and is a reproduction of the draft given to me...”
According to this draft, 22 out of the 24 empties had the lot number BBl/71 and the other two empties had the lot number 31/71, whilst, according to the witness, the lot number on all the empties recovered by him from the scene of the murder ;vas 661/71. Obviously, then the question was how the witness could remember that these lot numbers were not the lot numbers of the empties which he had collected three years earlier. The witness was very reluctant to give his explanation, and it was only after persistent cross-examination that he said--
“...while preparing the site plan I had taken down the numbers inscribed on the empty cartridges for my personal use. So far as 1 can recollect 1 had not given the numbers of the empty cartridges in the case diary. I had taken down the numbers of those empty cartridges on a piece of paper. I did not produce that piece of paper ...as explained earlier, it was for my personal use...”
It is very clear from this evidence that the witness had this note in his “session but as he did not produce it, its deliberate suppression leas to an adverse inference against his evidence, therefore, I am surprised at the view taken by the High Court, and I am unable to agree with it, for more reasons than one.
In the first place, apart from the fact that the dead (cannot answer the allegations made against them, even Niazi did not say that Abdul Abad had told him that the substitution of empties had beers made on Mr. Bhutto’s orders. And here 1 would refer to the evidence of Abdul Wakil Khan (the Deputy Inspector-General of Police at the tithe of murder). He said that it was known on the 11th November, 1974 that the empties were of 7.62 mm. bullets, therefore, if the finger of suspicion pointed at Mr. Bhutto because of the F.I.R., the finger of suspicion pointed at the F.S.F. also, because 7.62 mm. bullets were not issued) to the public but bad been issued to the FSF. . Additionally, I showed earlier how officer far more senior to Niazi, like Welsh, were afraid of Masood Mahmood, because of the fear that he would bring a false charge against them if they came in his way, and further, on the arguments advanced by Mr. Batalvi, Masood Mahmood was a terror in the days of his power. Therefore whilst it is possible that Niazi was afraid of investigating the case because Mr. Bhutto’s name was involved in it, it is at least equally possible that, like Welsh, he was frightened of doing anything which would displease Masood Mahmood. In theses circumstances, as Masoad Mahmood had confessed to the crime, the prosecution should have led evidence to show that the substitution of empties was not effected to screen or protect the FSF, but it did not.
Another circumstance relevant to the question of Niazi’s veracity and to which the attention of the High Court was not drawn was whether this story of the substitution of the empties was plausible. Niazi did not say why Abdul Ahad had been made to substitute the empties, .bus as the empties were of bullets which were in use by the FSF, the only possible object in effecting the substitution would have been to remove the possibility of suspicion against the FSF. That was also the prosecution case, but the substitution of the empties was meaningless unless the substitution was by empties of bullets in common use, and if Mr. Bhutto had ordered the substitution, there would have bees’ no difficulty in obtaining bullets of any type, whether from Bata or across the border. But, as the substituted empties were also of bullets of 7.62 mm. this alleged substitution of empties was an exercise in futility, and this makes it somewhat difficult to believe Niazi’s evidence.
Further, as Niazi admitted that he had executed a false recovery memo, he was, on his own admission, guilty of an offence under section 201 of the Penal Code. It is true that he was an accessory after the fact and there is authority for the proposition that the offence of an accessory after the fact is not generally regarded to be so serious as that, for example, of an accessory before the fact. But, this does not help the case of the prosecution, because Niazi is a Police Officer, who claims to have fabricated evidence crucial to murder case, therefore if his evidence be true, he was an accomplice of a baser type and on this ground, his evidence required corroboration. But, on the other hand, if the witness’s claim about the substitution of empties be false, it would mean that the witness was a thoroughly dishonest witness.
Mr. Yahya Bakhtiar’s next submission was that Niazi’s evidence was falsified by the evidence given by him in the enquiry conducted by Mr. Justice Shai-ur-Rchman into the murder of Mr. Kasuri’s father in order to appreciate this submission, I would explain here that Niazi had not said in his evidence before Mr. Justice Shafi-ur-Rehman that he had prepared a false recovery memo. of the empties or that the empties had been substituted. Therefore,, he was asked why he had tried to deceive Mr. Justice Shafl-ur-Rehman and his reply was that ht could trot speak the truth, because of the fear of Mr. Bhutto, and the learned Judges of the High Court have accepted this explanation. With the utmost respect, ads the witness had made false statements before Mr. Justice Shaft-ur-Rehman, how could the learned Judges be certain that the witness was not trying to deceive them ? I arts aware that they had the advantage of watching the demeanour of the witness, but, in my humble opinion, prudence dictated that the witness’s evidence crucial to murder case, therefore evidence should not be accepted without corroboration, and ‘such evidence could easily have been produced if the story of the witness had been true.
Thus, for example, the witness said that Abdul Ahad had’ travelled to Rawalpindi and brought back fake empties and the false draft of the recovery memo. from Rawalpindi. As this allegation is, in the words of Privy Council in Stephen Seneviratne v. The King (A I R 1936 PC 289), essential to the unfolding of the narrative of the prosecution case, the primary evidence of Abdul Ahad’s visit to Rawalpindi would have been his T. A. and D. A. Bills for this visit, but it was not produced. And, further, as the dead cannot answer the tales against them, the wilful failure of the prosecution to produce this documentary evidence makes it difficult for me to believe Niazi’s evidence, and this apart from the fact that he was an accomplice.
Additionally there were also other documents which could e4siiy have been produced by the prosecution. Thus, for example, an entry should have been made about the empties both in the roznamcha and in the zimnies, and the witness was cross-examined about the failure to produce these documents. As to the zimnies, he said that they had been maintained by Abdul Ahad, and as to the case diary maintained by him, he said “so far as I recollect I had not given the numbers of the empty cartridges in the case diary” As the burden was heavily on the prosecution to prove its theory of the substitution of empties, it was not enough for the witness to say that as far as he could recollect, he had not entered the numbers of the empty cartridges in the case diary. The case diary should have been produced to corroborate the witness’s claim. . Similarly, the zimnies should also have been produced, as the witness merely said that he did not know whether they contained any entry about the lot numbers of the empties. The site plan prepared by the witness might also have been of assistance to the Court, but this too was withheld.
Mr. Yabya Bakhtiar also drew our attention to the fact that the recovery memo. of the empties bad been attested by two witnesses, Abdul Ghaffar and Abdullah, and as on the plain language of section 103 of the Criminal Procedure Code, these witnesses were independent witnesses, learned counsel submitted that an adverse inference should be drawn against the prosecution for not examining these witnesses. Mr. Batalvi was not able to explain why these witnesses were not examined, but he attempted to retrieve the position by submitting that Niazi’s evidence about the substitution theory was supported by that of Nadir Hussain Abidi the Director, Forensic Science Laboratory, Lahore in November 1974: This witness said that he had come to the Ichhra Police Station after ,11-00 a.m. on the 11th of November 1974 in order to give his expect opinion about the empties, and as he said that he had seen the empties lying unsealed, Mr. Batalvi submitted that the evidence of this witness corroborated the claim made by Niazi in his evidence that the empties had not been sealed at the time of their recovery. I am astonished at the submission, because Nadir Hussain Abidi had seen the empties long after they had been secured from the place of occurrence by Niazi, and as to the time when these empties were secured by Niazi, Abdul Ikram, the Moharrir Head Constable of the Ichhra Police Station said in his evidence
“ On the night between 10th and 11th of November, 1974, Abdul Hayee S.H.O. left the Police Station at 3 or 4 a.m. for spot. He had made entry in the rozncmcha before his departure. It was made in my presence.”
If this evidence be correct, it is obvious that Nadir Hussain Abidi saw the empties at least six or seven hours after they had been brought to the Ichhra Police Station, but apart from Niazi’s evidence, the prosecution has not examined any other -evidence to show how the parcel of empties had been kept at the police station during this period. Perhaps in order to evercome this lacuna in the prosecution case, Niazi, who gave evidence after Abdul 1kram, said;
“Thereafter, I left the Hospital for spot. I might have left the Hospital at 8 or 8-30 a.m. From the Hospital, I did not go to the police station before going to the spot. I reached the spot from the Hospital in 10 or 15 minutes, and remained at the spot for about an hour. So far as I remember, my staff was present at the spot when I reached there from the Hospital.”
It is strange that Niazi’s evidence should be so inconsistent with Abdul Ikram’s evidence. Be this as it may, even if we give the benefit of doubt to the prosecution and assume that Niazi’s evidence is correct, Mr. Yahya Bakhtiar submitted that the only possible inference from the evidence was that the parcel of empties had been unsealed after it had been sealed in the presence of Abdul Ghaffar and Abdullah and before Nadir Hussain Abidi’s arrival at the police station.
The submission is correct. The burden was heavily on .the prosecution to prove its claim that Niazi had prepared a false recovery memo. and `Nazi’s evidence, as I have explained, by itself, was not sufficient to discharge this burden. On the other hand, the plea that the recovery memo. prepared by Niazi was false was crucial to the prosecution case, and in the words of the Privy Council in Stephen’s case ‘‘witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution”. I respectfully agree with this dictum, and this means that the prosecution should have examined Abdul Ghaffar and Abdullah or at least one of them, and the failure to do so necessarily leads to an adverse inference against the prosecution. Additionally, Niazi admitted that “my staff was present at the spot when I reached (the scene of the murder) from the Hospital”. Now if there had been any truth in Niazi’s claim that he had collected the empties without the assistance of Abdul Ghaffar and Abdullah, the prosecution could easily have examined Niazi’s own staff to corroborate his evidence, but it did not.
Finally, according to Mr. Yahya Bakhtiar, there was another circumstance crucial to the question of Niazi’s veracity to which, the attention of the High Court was not drawn, because of a misunderstanding of tits law by the learned Public Prosecutor. Niazi’s statement under section 161 of the Criminal Procedure Code had been recorded by Chaudhry Abdul Khaliq and incorporated in the Police diary and in order to appreciate, Mr. Yahya Bakhtiar’s submissions, I would recall here that Niazi ad been asked to explain why he had not informed Mr. Justice Shafi-ur-Rehman that he had prepared a false recovery memo. In order to conceal the fact that the empties recovered from the scene of the murder had been substituted. Niazi’s reply was that he had deceived Mr. Justice Shafi-ur-Rehman because of the pressures brought to bear on him under the Government of Mr. Bhutto. But the witness’s statement under section 161 of the Criminal Procedure Code had been recorded after Mr. Bhutto had been removed from power, yet this statement does not contain any reference whatever to the theory of the substitution of empties, therefore, Mr. Yahya Bakhtiar naturally submitted that this omission was sufficient to shatter the veracity of the witness. And learned counsel further Explained that the accused had not been able to cross-examine Niazi about his earlier statement, because they had been informed by the Public Prosecutor that Niazi’s statement had not been recorded under section 161 of the Criminal Procedure Code. But as the statement had been recorded, learned counsel’s further submission was that we should either reject outright Niazi’s evidence, because the prosecution had illegally withheld his earlier statement in wilful disregard of the mandatory provisions of. section 265-C of the Criminal Procedure Code or we should allow learned counsel to cross-examine Niazi on the basis of his earlier statement.
Mr. Batalvi admitted that he had not supplied a copy of Niazi’s earlier statement and that he had also informed the Court that the witness’s statement had not been recorded under section 161 of the Criminal Procedure Code. Further learned counsel reaffirmed before us the position taken by him in the High Court, and he said that as Chaudhry Abdul Khaliq had recorded Niazi’s statement in the Police diary, it was not a statement within the meaning of section 161 of the Criminal Procedure Code, therefore, the prosecution was not under any obligation to supply a copy of this statement under section 265-C of the Criminal Procedure Code. In support of this submission, Mr. Batalvi relied on the majority view in Queen-Empress v. Mannu (I L R 19 All. 394) and on several other judgments, of the Indian High Courts in which the majority view in the Allahabad case had been followed.
However, there is a cleavage of opinion in the High Courts on the question whether a statement of a prosecution witness ceases to be a statement under section 161 of the Criminal Procedure Code, if it is recorded in a Police diary, instead of being recorded separately. We have heard full arguments on this question, and I am satisfied that the correct view was the minority view in the Allahabad case, which was’ that the accused cannot be deprived of his right to a copy of the statement made by a prosecution witness under section 161 merely because that statement has been reduced into writing in a Police diary, instead of being recorded separately. But the accused would not be entitled to a copy of a statement in a Police diary if the statement is only statement of the circumstances ascertained through his investigation” by a Police Officer within the meaning of section 172 of the Criminal Procedure Code. So the question in the Instant case is whether Niazi’s statement, which is contained in the Police diary, is merely “a statement of the circumstances ascertained through his investigation” by Chaudhry Abdul Khaliq, or whether it is in -substance a statement of Niazi as a prosecution witness, and having read the statement with the assistance of the learned counsel, we were all satisfied that the statement, though incorporated in the case diary, was in substance statement under section 161. This means that it should have bee supplied to the accused in the trial Court, and as it was not, Mr. Yahya Bakhtiar would have been entitled to recall Niazi for the purpose of cross-examining him. But the abject of cross-examination is only to destroy the veracity of a witness, and I am satisfied that Niazi was not a witness of truth, and his theory of the substitution of empties was a absolutely false theory.
Additionally, when the many infirmities in Niazi’s evidence were brought to the notice of Mr. Batalvi, he stated that he could not defend the view taken by the High Court that the prosecution had proved this alleged theory of the substitution of empties. As the Public Prosecutor has also abandoned this theory, no purpose would be served by recalling Niazi for further cross-examination.
Mr. Batalvi’s next submission was that although the prosecution had failed to prove its theory of the substitution of empties, it had, nonetheless, been able to prove that there was a high probability that the empties had been substituted. I am surprised at the submission, because the ballistic expert’s report is fatal to the prosecution case, but if the prosecution had proved that the empties had been substituted, it might have enabled the prosecution to get round the ballistic expert’s report. Therefore, the prosecution had to prove beyond reasonable doubt that the empties had been substituted, and its case cannot be advanced by showing that there was a high probability of the substitution of empties. In any event, it has totally failed to prove that the empties were substituted, because this plea rests solely on Niazi’s evidence which does not inspire confidence.
Mr. Batalvi then invited us to hold, again on the basis of Niazi’s evidence, that Abdul Ahad had delivered the empties to Rao Rashid, the Inspector-General of Police (Punjab) on the night of filth of November 1974 at his house. Now what Nazi said in his evidence was that Abdul Ahad had told him that Rao Rashid “had ordered for the production of 24 empty cartridges; lead bullet and ‘cap of the deceased. The D.S.P. put the 24 empty cartridges and the lead bullet in the service envelope. He also had the cap of the deceased and we reached I-G.’s residence in the jeep. I and the driver kept sitting in the jeep while the D.S.P. entered the I-G.’s. residence with the articles mentioned above”. Then according to the witness, Abdul Ahad returned from the I.-G,’s house with the cap of the deceased but without the empties and the lead Bullet. The High Court was impressed by this evidence, but that -is because the High Court accepted Niazi’s evidence and held that Njazi had proved that the empties had been substituted. But, as I am pot Impressed by Niazi’s evidence, and as it is no longer the prosecution case that the substitution of empties has been proved, it is difficult to believe Niazi’s evidence that the Inspeotor-General had taken away the empties. If the empties were not substituted, why should any body take them away ? Mr. Yahya Bakhtiar therefore, submitted that Niazi’s evidence was false and that in terry case it was hit by the rule against hearsay.
The second limb of Mr. Yahya Bakhtiar’s submission is not correct, because Niazi also deposed about what he had seen and done. However, the question is whether his evidence can be believed, and apart from the fact that he gave false evidence about the substitution of empties, Abdul Wakil Khan has said that Abdul Ahad had told him that he had given the empties to Abdul Hamid Bajwa. Thus, Niazi’s evidence is contradicted by Abdul Wakil Khan’s, and Mr. Batalvi was not able to advance any argument to show that Niazi’s evidence was fit to be preferred to that of Abdul Wakil Khan. Accordingly I would only observe that in the circumstances discussed, I would reject Niazi’s evidence also as false.
Mr. Batalvi’s next contention was that the delay in forwarding the empties indicated that they had been tampered with. So, I may explain here that according to Niazi, the fake empties were brought back by the late Abdul Ahad from Rawalpindi on 17th November 1974, and an entry was then made in the Malkhana register about the receipt of the parcel of empties, but this entry was falsely predated to 11th November 1974. Both Abdul 1kram and Bashir, constables of the police station, have said that the entry in the Malkhana register was trade on the 17th November, 1974 but was falsely predated to the 11th November, 1974. Further, according to the evidence of these witnesses, the empties were forwarded only on the 23rd November 1974 to the Forensic Expert and according to Mr. Batalvi this delay of 12 days raised the possibility that the empties had been substituted.
Now, delay in forwarding empties is relevant only if the weapons alleged to have been used in the occurrence are sent with the empties, but as the step-guns alleged to have been used in the occurrence were not secured until 1977, nothing turns on the delay in forwarding the empties. Secondly, I would observe here with great regret that delay in forwarding empties has become the order of the day, and in Noor Alam v. The State (PLD1978SC137) we had occasion to consider the effect of a delay of nearly four weeks in forwarding to the expert the empties together “ with the guns used in the occurrence. As the appellant was unable to show that the Police had used the delay in fabricating evidence, we held that nothing turned on the delay in forwarding the guns and the empties to the expert. I re-affirm the view taken in this case and although Mr. Batalvi’s attention was drawn to it, he was not able to advance any argument to persuade us to revise our view. He only relied on judgments of High Courts which have lost their relevance because of this declaration of the law by us.
Mr. Batalvi then attempted to salvage the prosecution case by inviting us to accept the view of the High Court that the empties secured from the place of occurrence could only have been the empties of bullets which had been issued to the FSF. But as the learned counsel did not support the reasons given by the High Court for reaching this conclusion, it is necessary to explain the position in some detail.
The prosecution has proved that bullets bearing lot No. 661/71 had been issued to the FSF, and as the empties recovered from the scene of the murder had the same lot number, according to Mr. Batalvi, this furnished strong corroboration of the prosecution case. Now, according to Niazi, ail the 24 empties which he had recovered on the morning of 11th November 1974, had this lot number, but the lot numbers of the fake empties given to him by Abdul Ahad on his return from Rawalpindi were different, because 22 of the fake empties had the lot number BB1/71, whilst the other two had the lot No. 31/71. Further, according to the prosecution, these fake empties had been sealed in a parcel and forwarded to the Inspectorate of Armaments, and it was this parcel of fake empties which was opened in the presence of the learned Judges on the 16th of January, 1978 when they recorded Nadir Hussain Abidi’s evidence. I now turn to what this witness said about the empties in this parcel;
“I have seen the base of these 24 empty shells and have found that 22 of them bear one batch mark and the rest bear different batch mark as compared to the other 22. What is inscribed on the basis of 22 empties is 661/71, but the number can be read as BB1/71 by a person who has weak eye sight and who does not examine closely.”
According to Niazi, the lot number on 22 of these empties should have been BBI/71 and not 661/71, because 661/71 was the lot number on the empties recovered by him on 11th November 1974. But, as all but two of the empties in this parcel, had the number of the original empties, it seems to me that this story about the substitution of empties is absolutely false. And, what perhaps happened was that Niazi had secured the empties in the early hours of the morning of 11th November 1974 (as stated by Abdul Ikram) and as he had examined them in poor lighting conditions, he had misread the Nos. 661/71 as BBl/71 and when this mistake was discovered, he invented this theory of the substitution of empties both in order to cover up his negligence and in order to prop up the prosecution case.
I now turn to Mr. Batalvi’s submissions on his theory of lot numbers. According to the prosecution, and this has also been proved, the FSF used to obtain its ammunition from the Central Ammunition Depot (hereafter called the CAD), Havelian. Next, according to a letter written by the Commandant of this depot, Col. Wazir Ahmad, Khan, on 28th August, 1977 (Exh. P. W. 39/2) more than a million rounds of ammunition bearing lot No. 661/71 had been issued to the FS.F in the year 1973, and as, according to Mr. Batalvi, bullets bearing this lot number could not have been issued by the CAD, Havelian to any other unit, organization or person in Pakistan, the submission was that this letter of Col. Wazir Ahmad Char was sufficient to save the prosecution case. I would only observe on this submission that if it is correct, it would lend some support to they prosecution case. But as Col. Wazir Ahmad Khan’s letter of 28th August 1977 does not state that bullets bearing lot No. 661/71 could not have been issued to any other person, unit or organization is Pakistan, Mr. Batalvi stated that the Colonel would have said so if he had been examined in Court. Unfortunately, as he was not examined, there is absolutely no evidence in support of the learned Counsel’s submission.
This section reads
“510. Report of Chemical Examiner, Serologist, etc.---Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, fingerprint or fire-arm expert appointed by Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code;
Provided that the Court may, if it considers necessary in the interest of justice summon and examine the person by whom such report has been made.”
For the purpose of this discussion, it is sufficient to state that the privilege conferred by this section is limited to the reports of the Chemical Analyser and the Assistant Chemical Analyser appointed by the Government. Therefore, the burden was on the prosecution to show that the Chief Inspector of Armaments had been appointed by the appropriate Government as the Chemical Analyser or the Assistant Chemical Analyser under this section. Learned counsel made no attempts to meet this argument, but appeared to rely on the fact that responsible Police Officers had forwarded the empties for examination to the Chief Inspector, Inspectorate of Armaments. It is true that the Police Officers investigating the two cases had sent the empties to the Inspectorate of Armaments, but the prosecution had first sought the assistance of Nadir Hussain Abidi, the Director of the Forensic Science Laboratory of Lahore, and as Mr. Batalvi did not contend that Nadir Hussain Abidi was a Chemical Analyser or an Assistant Chemical Analyser within the meaning of section 510 of the Criminal Procedure Code, the’ mere fact that the Police sought the advice of the Chief Inspector, Inspectorate of Armaments cannot possibly lead to the conclusion that this officer was the Chemical Analyser appointed under section 510. And, on the contrary, Major Fayyaz. Haider has, in his first report about the Lahore empties (Exh. P. W. 32/1), informed the Police “please in future refer such cases to Chief Inspector of Explosives (Civil) Karachi”. Thus the report itself suggests that the Chief Inspector of the Inspectorate of Armaments was not competent to issue certificates under section 510 of the Criminal Procedure Code and here Mr. Yahya Bakhtiar referred us to a judgment reported in Mohammad Ashraf v. The Stare (P L D 1959 Pesh. 176) from which it is clear that the Chemical Analyser under section 510 used to be the Inspector of Explosives. Therefore, Mr. Batalvi had to produce, the relevant notification to show that some one else had been notified, as the Chemical Analyser or the Assistant Chemical Analyser under this section. But he did not.
It is true that none of the accused cross-examined Lt.-Col. Zawar Hussain and Major Sarfraz Naeem on the question whether the Chief Inspector’s reports, which they produced, were by the Chemical Analyse appointed under section 510. But it was not for the accused to guide and advise the prosecution so as to ensure their own conviction. And further, any such question would have been barred either by the rule against hearsay or the rule that a party must always produce in support of its plea the best evidence available to it. So, if, for example; either of these witnesses had said that the Chief Inspector of the Inspectorate of Armaments had been appointed by the Government as its Chemical Analyser, this statement could only have been made on the basis of what they had learnt from others or from a perusal of the relevant notification. And, if the statement was based on what the witnesses had learnt, even from their Chief Inspector, the answer would not have been evidence, because it was hearsay. And, on the other hand, if the answer had been made on the basis of a notification issued by the appropriate Government, it was the duty of the public prosecutor to produce this notification. And, further, as Mr. Batalvi did not attempt to produce this notification even before us, and in view of Major Fayyaz Haider’s direction to the Police in his report, Exh. P.W. 32/1, that they should in future “refer such cases to Chief Inspector of Explosives (Civil) Karachi”, I have no doubt that the Chief Inspector, Inspectorate of Armaments had not been authorised at the relevant time to issue reports under section 510.
Additionally, as this section has seldom come up for construction before the Courts, I would observe here that it is an exception to the general principle enunciated in section 45 of the Evidence Act with regard to the experts specified in the section, and all that the section enacts is that a Court may use as evidence the report of the expert. even though the expert has not been examined as a witness. This, however, does not mean that the Court has to go by the ipse dixit of the expert, and because the discretion conferred on the Court by this section is a judicial discretion, it must be exercised judicially, therefore, to take an obvious example, a Court will be failing in its duty, if it relies upon a report which does not contain the reasons given by the expert for the findings given by him in his report. unless the point is too clear to leave any room for doubt in the Court’s mind. Similarly, I venture to think that the Public Prosecutors would be well advised to examine the expert despite the privilege conferred by this section, in cases where the expert’s opinion is crucial to the prosecution case, or in cases where the opinion turns on some controversial or complicated matter, and, in the instant case, whilst I do not doubt the correctness of the reports submitted, the question is whether we should go by the expert’s ipse dixit. For obvious reasons, the report and the letter about the empties from Lahore are so cryptic that I for one would like to know more about the tests carried out by the Chief Inspector which led him to reach the conclusions which he did. Secondly, Mr. Batafvi submitted that according to the report, Exh. P.W. 33/1, even the piece of metal recovered from the body of the deceased was from a bullet of 7.62 mm., and he rightly placed great reliance on this finding. Now, whilst I would not, for a moment, doubt the Chief Inspector’s opinion about this piece of metal merely because I find it difficult to understand how such a finding can normally be given from a piece of metal, an expert relied upon by the prosecution, namely Nadir Hussain Abidi, has said about this piece of metal “I could not say anything about the metallic piece as it was in a mutilated state”. This witness was the Director of the Forensic Science Laboratory of Lahore, and if he could not give an opinion on the piece of metal, in my opinion, the prosecution was required to examine the Chief Inspector not for the purpose of proving the reports, because they had been proved, but in order to convince the Court that the conclusions reached in these reports were the correct conclusions, In any event, as tire prosecution has failed to prove that the Chief Inspector was the Chemical Analyser or the Assistant Chemical Analyser within the meaning of section 51o, it cannot use the Chief Inspector’s reports as evidence under this section, therefore as the prosecution wanted to rely upon them as expert opinion, the prosecution should have summoned the Chief Inspector to give evidence in Court about the opinion expressed by him in his reports and as it did not, the reports are of no help to its case.
I now turn to the question of motive. I have already indicated my views on this question and Mr. Batalvi’s attention was drawn to this Court’s judgment in Abdul Qadir’s case. He, therefore, relied on this Court’s judgment in Abdur Rashid v. Umid Ali (P L D 1975 S C 227) and in Mst. Razia Begum v. Hurayat All (P L D 1976 S C 44) and submitted that the prosecution case was very strong, because it had proved that only Mr. Bhutto had a motive for killing Mr. Kasuri and also proved that Masood Mahmood had no motive whatever to implicate Mr. Bhutto falsely. But the two judgments of this Court relied upon by Mr. Batalvi do not help him, because the question whether motive could furnish corroboration of an approver’s evidence did not arise for consideration in those cases. However, as rightly submitted by Mr. Batalvi, the High Court has placed great reliance on the evidence of motive, so I would examine it in some detail.
I would begin with a passage from Munir’s Law of Evidence (Pakistan Edition) to which the attention of the High Court was unfortunately not drawn. The learned author observes at page 1442:---
“It has already been noticed that circumstantial evidence to be corroborative of the evidence of the accomplice must show or tend to show that the accused committed the offence. Therefore, mere question of motive for the commission of the offence ...is not sufficient corroboration.”
I agree with these observations and I would clarify that what the learned author meant was that motive by itself could never furnish corroboration of the evidence of an accomplice. This does not mean that motive cannot be a link in a chain of corroboratory evidence, but by the nature of things, it can only be a weak link in a chain of corroboratory evidence, and that was ‘he view taken by successive Division Benches of the Lahore High Court in Jit Singh v. Emperor (A I R 1925 Lah. 526 ) in Jiwan Singh v. Emperor (A IR It 1934 Lah, 23 ) and in Kartar Singh v. Emperor (A I R 1936 Lah. 400 ). As, unfortunately, the attention of the High Court was not drawn to the earlier case-law of their own High Court, I would observe here that the view taken by the Lahore High Court in these judgments is similar to the view taken by all the High Courts of the sub-continent, and, unless we are so presumptuous as to think that we have the monopoly of wisdom, there must be good reasons Why all the judges who went before us took the view that motive was a very weak form of corroboratory evidence. In my humble opinion, the reasons for this view are obvious. In the first place, evidence of motive seldom comes from disinterested witnesses. Secondly, the victim of an offence may have enemies other than the accused who are tried for the offence. Thirdly, and this is most important, as human beings differ in their reactions to the same provocation, evidence of motive has hardly any corroborative value, unless it is the evidence of a witness, who has heard the accused say that he will take his revenge against the victim of the offence. But even in such cases Court should be very careful about relying on evidence of motive. Thus for example, in the instant case, the High Court has relied on an intelligence report in which it was stated “that Ahmad Raza Kasuri was in a desperate sate and had been heard saying that he will take revenge of the murder of his father personally”. However, it is nobody’s case that Mr. Kasuri had ever even thought of making an attempt on Mr. Bhutto’s life.
With these observations, I turn to the evidence of Mr. Kasuri, who was examined by the prosecution to prove the motive for his father’s murder. A casual perusal of the witness’s cross-examination would show that there were times when he bad fallen out with Mr. Bhutto, and there were times when he had expressed blind admiration for Mr. Bhutto. He had joined Mr. Bhutto’s party with great enthusiasm, then left it with a bang, joined another party, left that party with a bang, and there he actually rejoined the party of Mr. Bhutto, after his father’s murder. As his rejoining the Pakistan People’s Party casts doubts on his evidence about the reasons for his suspicion that Mr. Bhutto was the murderer o his father, Mr. Batalvi submitted that there was a love-hate relationship between two men. As this cryptic observation hits the point, I would not burden the record by gong through the witness’s evidence, and I would only observe that the element of hatred in the witness’s relationship with Mr. Bhutto was on the ascendant when he gave evidence in the trial Court. Therefore, he cannot, by any stretch of imagination, be, described as a disinterested witness.
Mr. Kasuri has also admitted in cross-examination that -he had many enemies amongst the Punjab politicians, and I am compelled to observe that it would have been much better if he had readily admitted that he had other enemies. He did so very reluctantly, and because of his own statements in the past, and I would only refer here to his privilege motion to the Speaker of the National Assembly dated 29th November, 1974. In this privilege motion, he has stated that between 22nd May, 1971 and the Islamabad incident of August 1974, 13 attacks had been made on his life with deadly weapons. It is true that the witness claimed in his evidence that all these attacks on him had been instigated by Mr. Bhutto, but complaints had been registered all over the country for these attacks, and Mr. Batalvi could not refer us to any documentary evidence whatever to show that Mr. Bhutto had been implicated in these complaints. In this background of hatred and enmity against the witness, it would be absurd to contend that the National Assembly incident of 3rd June, 1974 had given Mr. Bhutto a motive to murder Mr. Kasuri, therefore, Mr. Batalvi advanced a much more sophisticated argument.
This was that Mr. Kasuri had criticised Mr. Bhutto in Parliament and out of Parliament, and as Mr. Bhutto was a very vindictive man, he wanted to silence his critics by eliminating them. In support of this argument, we were referred to several speeches by Mr. Kasuri in the National Assembly, and it would be sufficient to refer to one of those speeches. In a speech in February 1973 Mr. Kasuri criticised Mr. Bhutto in a very strong language, compared him to Hitler and compared the episode of the arms-haul from the Iraqi Embassy with the burning of the Reichstag. Obviously, Mr. Kasuri was a very bold critic of Mr. Bhutto. But the question is whether this would furnish 4 motive to one parliamentarian to eliminate another parliamentarian ? In my humble opinion, institutions, which have existed for generations, and parliamentary Institutions have flourished in the sub-continent for almost a century, develop their own traditions and what might be described as their own rules of the game. And one of the rules of the game among our politicians is that they will abuse each other in very offensive language without taking it to heart. This trend was noted long ago by Sir Maurice Gwyer, C.J., in his classic judgment in Niharendu Dutt Majumdar v. Emperor (A I R 1942 F C 22 ). Perhape a case more to the point is my own judgment in All Hussain Jamalf v. Government of Sind (P L D 1974, Kar, 283). There Mr. Bhutto was criticised in language in words as virulent as any used by Mr. Kasuri in his speeches. Therefore; it seems to me that the reaction of politicians to mutual abuse is very different from say that of a village rustic. Unlike the latter, a politician does not reach for his gun when he is criticised, and, although Mr. Bhutto had professed to boycott his examination under section 342 of the Criminal Procedure Code, this is what he had said when he was questioned about his reactions to Mr. Kasuri’s speeches, criticising him in extremely strong language. In this connection, Mr. Bhutto had referred to an incident in Parliament is which Mr. Wali Khan had told Mr. Pirzada” I will wring your neck and I will shoot your Prime Minister or President.” And what Mr. Bhutto meant was that utterances such as those by politicians did not mean anything, they did not even mean that the politicians, who showered such compliments on each other, really hated each other. This was also’ the stand he took in his statement before us, and I would agree with the[ proposition that seasoned parliamentarians tolerate criticism which; might seem to be absolutely intolerable and offensive to persons in others walks of life, therefore, I cannot accept Mr. Batalvi’s submission that Mr. Bhutto had a motive for killing Mr. Kasuri, because Mr. Kasui was criticising him violently.
Mr. Batalvi then submitted that Mr. Bhutto was a very vindictive man, and in support of this plea he referred us to Sated Ahmad Khan’s cross-examination by Mr. Bhutto’s learned counsel. I am unable to understand why this witness and Masood Mahmood were cross-examined in the very unfortunate manner in which they were. Be this as it may, in his reply to a question put by Mr. Awan, Sated Ahmad Khan said;
“a shady journalist by the name of Nasrullah published a weekly “AWAM” had made virulent attacks against the Prime Minister and his family members. I was ordered by Mr. Bhutto that as his family lived in Multan, I should have them set right.”
He then said that he asked the D.I.-G. Multan to warn the members of Nasrullah’s family to tell Nasrullah “not to make such personal attacks on Mr. Bhutto and his family”. Further according to the witness;
“after two days of this I got a call from the Prime Minister ...and he virtually put me on the mat that these half measures are of no use and that his instructions had not been complied with.”
As Saeed Ahmad Khan, who was a very clever witness, refrained from saying what instructions Mr. Bhutto had given him, and as he did not tell us how Nasrullah’s family had to be harassed, this evidence does not lend any support to Mr. Batalvi’s submission that Mr. Bhutto was the type of-man who had his critics assassinated.
Mr. Batalvi then referred us to Mian Abbas’s statement (Exh. D.W. 1/1) to the Martial Law authorities to which I referred earlier and submitted that this statement proved that Mr. Bhutto was the type of man; who was so vindictive that he would eliminate his critics. I examined this statement earlier and I pointed out that it implicated Masood Mahmood and was very damaging to the veracity of that witness. Additionally, this statement was made by Mian Abbas after Mr. Bhutto had been overthrown, yet it does not contain a word against Mr. Bhutto, and as we cannot read into this document what it does not state, I am unable to accept Mr. Batalvi’s submission that this document shows that Mr. Bhutto was a vindictive man.
Additionally, this document, Exh. D.W. 1/1, was produced after Mr. Bhutto’s examination under section 342 of the Criminal Procedure Code, and as I have referred to it, I would observe here that I must not be understood to have accepted Mr. Batalvi’s submission that this document was admissible against Mr. Bhutto. Lengthy arguments were advanced by Mr. Batalvi on the question of admissibility of this document, but as it does not lend any support to the prosecution case, I consider it unnecessary to examine these arguments.
Mr. Irshad Qureshi had however cross-examined the approvers on the allegation that Mr. Bhutto had ordered the assassination of politicians who had criticised him, and as far as I can see, this crossexamination had reference to the rule laid down by the Privy Council in Makin v. Attorney-General for new South Wales (1894 AC 67) that the prosecution can always produce evidence to anticipate a defence which the accused was likely to make. And, as the defence which any politician would have made on the type of charge faced by Mr. Bhutto would have been’ that politicians do not get excited by the mutual abuse they indulge in, I would have thought that Mr. Irshad Qureshi’s cross-examination was relevant. Unfortunately, the manner in which some of it was conducted was totally illegal. Sometimes Mr. Irshad Qureshi was permitted to cross-examine after Mr. Bhutto’s learned counsel had completed his cross-examination, although the sole object of Mr. Irshad Qureshi’ cross-examination was to prove Mr. Bhutto’s guilt. Obviously this part of tote evidence of the witnesses has to be ruled out. And if it is ruled out, there is no evidence whatever to show that Mr. Bhutto had ordered the assassination of his critics nor were we referred to any such evidence.
However; as in his arguments on the 16th September 1978 Mr. Batalvi had referred us to the murder of six political leaders who were critics of Mr. Bhutto. It was pointed out to him that such vague allegations did not amount to evidence to show that Mr. Bhutto was a person who had his critics assassinated. Mr. Batalvi’s reply was that the prosecution was debarred from producing evidence on these lines. But if the prosecution cannot produce such evidence. I do not see how Saeed Ahmad Khan’s evidence about Mr. Bhutto’s orders to harass the family of the journalist Nasrullah or for that matter Mian Abbas’s statement, Exh. D.W. 1/1, can be used as evidence against Mr. Bhutto. However, as this question of the evidence which the prosecution could have laid to rebut Mr. Bhutto’s plea of innocence is a complicated question, I would refrain from deciding it, and I would only observe that it was for the Public Prosecutor to conduct the case in the manner in which he thought proper, and the result of the manner in which the case has been conducted is that there is no evidence in support of the submission of Mr. Batalvi and Mr. Irshad Qureshi that Mr, Bhutto got his critics murdered, because he was a vindictive man, who could not tolerate any criticism.
I would now turn to Mrs Kasuri’s evidence and examine how it supports the prosecution case of motive aga6st Mr. Bhutto. Mr. Kasuri stated that his differences with Mr. Bhutto had begun even before the National Assembly had been convened, because he had objected to the boycott of the Session of the National Assembly which was to have met in Dacca in March 1971. And he further said that Mr. Bhutto had turned against him, because he was the only member of his party who had gone to Dacca to attend that Assembly Session. But, although the witness claimed hostility only on the part of Mr. Bhutto, he was compelled to admit in cross-examination that other leaders, like Mr. Khar, Mr. Mairaj Khalid and Dr. Mubashar Hassan, were also hostile to him. But, whilst the witness was not cross-examined on the particulars of this hostility, he was cross-examined at great length on the enmities between him and the local politicians of Kasur district and especially two local leaders, Chaudhry Yaqub Ma a and Mr. Akbar Toor. Thus, for example, the witness said that on rte 2nd of May 1971, he had been illegally prevented from presiding over a meeting of his party at the Habib Mahal Cinema in Kasur and had been violently attacked. He then said;
“the names of...those persons...had been mentioned by me in the relevant F. I. R. A case had been registered with Police Station Kasur City about this incident, but I cannot say who was the complainant. I do not know if one Mohammad Sharif had also been in jured...I was not in a position to say who was responsible for fracturing my hand in that melee.”
The witness further said that ------
“a cross case naming Mohammad Sharif, myself and others was registered at the Police Station, Kasur city. It was done at the behest of the Administration. This cross case had been registered after the other case. I do not remember if I ever asked for my enlargement on bail in the cross case. 1 was summoned by the Court in this cross case ...I do not recollect if I ever appeared in the Court in the cross case. I do not know if a challan was submitted in the case initiated by Mohammad Sharif. I am not aware of the fate of these two cases. Neither did I make any inquiry about this.”
Mr. Kasuri also admitted in cross-examination that on the night of [the 4th and 5th August, 1971 “an attack was launched at my house at Kasur and because of wrong identification they injured my brother Khizar”. I would point out here that in this attack Khizar had received more than a hundred injuries, but as according to the witness Khizar eras attacked only because of wrong identification, it is obvious that the assailant harboured intense enmity against him. Reverting however to his evidence, he further said “that I am not aware who lodged the F.I.R. I am not aware if Yaqub Maan and Naseer Khan were named in that F.I.R. as the assailants. The latter is my first paternal cousin”. I would pause to point out here that Khizar was very lucky to have survived a hundred injuries, and as such attacks could not have been a regular occurrence in the witness’s family, it is not possible to believe that the witness did not know whether his own cousin Naseer Khan had been named in the F.I.R. lodged for this terrible attack on his brother.
Mr. Kasuri was then cross-examined about a criminal case which was pending against him on 15th October 1977 when he was crossexamined in Court. He said “Khudian is within my constituency. It is a fact that I held: a public meeting at Khudian on 8th April 1972...just as the meeting started pistol shots were heard and they were followed by a pandemonium.
I saw Akbar Toor firing but I am not aware as to how many other persons were doing the same. An F. I. R. was lodged with the Khudian Police Station about this incident. Akbar Toor was mentioned in that F.I.R. as the principal assailant, but I do not remember the names of the co-accused. I might have been the complainant in this case.
I have already stated that in the state of mind in which I was after the firing, I do not remember anything. The case is still pending in the Court of a Magistrate at Kasur.”
In view of these and other admissions by Mr. Kasuri, `am unable to understand Mr. Batalvi’s submission that the prosecution had prove beyond doubt that Mr. Kasuri had no enemies except Mr. Bhutto in 1974. Secondly, in view of Mr. Kasuri’s admissions in cross-examination, no Police Officer, who was investigating the murder case, could possibly have reached the conclusion that Mr. Kasuri did not have differences with local politicians in 1974, but unfortunately, as I will presently show, two senior Police Officers advanced this claim in their evidence. Thirdly, Mr. Yahya Bakhtiar submitted that Mr. Kasuri was a very aggressive man and it was he who went round attacking people and that the evidence which I have just quoted did not state the true position about this Khudian incident. Learned counsel there fore referred us to the further cross-examination of this witness, and it reads;
“Question.-I put it to you that as a result of the incident in that meeting only one F. I. R. was lodged land that was by Mohammad Akbar Toor because you and your supporters were the assailants ?
Answer.----It is a fact that Mohammad Akbar Toor did get a case registered and I got myself bailed out. I cannot say ‘if his was the only F. I. R. lodged regarding this incident. It is a fact that there is only one case which is pending regarding this at Kaasm and I am an accused person in that case.”
I would observe here that it was unfortunate that the witness tried in his answers to avoid admitting that he was the accused in this case.
Finally, the witness admitted another violent attack on him Chaudhry Yaqub Maan which proves an enmity far more bitter that any differences of opinion with Mr. Bhutto. Mr. Kasuri said about this occurrence;
“It is correct that at 4 p.m. on the 16th of January 1972 Ch. Yaqub Maan who was accompanied by others assaulted me. The other assailants included his son and some others. They were armed with revolvers, lathis, and sharp-edged weapons. I was injured by them. I sustained bullet injuries on my legs.”
The witness further said;
“I remained in the Mayo Hospital for over a week, and as I could not stand the atmosphere of the hospital, I returned home, although my injuries-had not yet healed and I continued visiting the hospital for over a month to get my wounds dressed.”
The F.I.R. lodged by Mr. Kasuri for this occurrence Exh. P.W.1/13-D also furnishes an interesting commentary on Mr. Batalvi’s submission that Mr. Kasuri had only one enemy and that was Mr. Bhutto. Not only has Mr. Kasuri not named Mr. Bhutto in this lengthy F.I.R. but he has referred in detail to the vendetta, which was being pursued against him, by Chaudhry Yaqub Maan. He has then stated in the F.I.R. that he was sitting in the Family Planning Office in Kasur when Chaudhry Yaqub Maan and his party came, armed with revolvers and hatchets, and attacked him, and Chaudhry Yaqub Maan shouted to his followers that Mr. Kasuri should not be spared. Further, according to the F.I.R. an attempt was made to abduct him and take him away in the boot of a car belonging to the party of Chaudhry Yaqub Maan in order to kill him. But he successfully survived these attacks and lived to lodge the F I R. Like the assault on the witness’s brother, which had caused more than a hundred injuries, the lurid description of the occurrence in this F. I. R. suggests that the local enmities against the witness were extremely violent.
Another piece of evidence on which Mr. Yahya. Bakhtiar relied was the admission of Mr. Kasuri that he had remained on bail in the cases filed against him, and as these cases too involve very serious criminal charges, learned counsel’s submission was that if Mr. Bhutto had really been after Mr. Kasuri’s life, he would have seen to it that the bail granted to Mr. Kasuri was cancelled. I would only observe on this submission that it was not disputed before us that the State had not sought cancellation of the bail granted to Mr. Kasuri, and if Mr. Bhutto was really after this witness’s blood, even without Mr. Bhutto’s knowledge, his minions would have sought cancellation of the bail granted to their master’s enemy. But no such attempt was made by any one Additionally, the cases in which Mr. Kasuri was granted bail related to occurrences of 1971 and 1972, and it would appear from Mr. Kasuri’s evidence that no progress had been made in those cases, even though Mr. Bhutto had been in power for at least five years after the institution of those cases. I am conscious of the delays in the subordinate Courts, but the delays in the cases filed by for and against Mr. Kasuri would appear to beat all records. Obviously, something was rotten in the State of Denmark and there was much more to it than Mr. Bhutto, otherwise the cases against Mr. Kasuri would not have remained pending for so many years.
Mr. Batalvi however made much of the fact that the F.I.R. had been lodged very promptly and that Mr. Kasuri had named Mr. Bhutto in it. Learned counsel thought that this furnished corroboration of the evidence of the approvers, but I regret my inability to accept the argument, because Mr. Kasuri has not named any assailants in his F.I.R. He has only pointed the finger of suspicion at Mr. Bhutto. And, the question whether this suspicion was justified or not, has to be decided by an objective test, so that if, the suspicion was not justified, nothing would turn on the fact that the F.I.R. was lodged promptly. Indeed, in cases in which the F.I.R. merely voices the suspicion of the complainant, the fact that it is lodged promptly, might mean that the complainant had no time to consider whether his suspicion would beat the scrutiny of reason. On the other hand, the position is quite different in cases in which the F.I.R. names the assailants and the eyewitnesses. In such cases, at least when there is enmity between the parties, delay in lodging the F.I.R leads to an adverse inference against the prosecution, because of the obvious possibility that time was taken to concoct evidence or implicate innocent person, whilst the question of drawing an adverse inference does not arise where an F.I.R. of this nature is lodged promptly. Therefore, the prompt lodging of an F.I.R. is a circumstance in favour of the prosecution when the F.I.R. has named the assailants or the eye-witnesses, but I see no analog between such F.I.Rs. and the F.I.Rs. which merely record the suspicions of the complainant.
Additionally, the murder in Lahore was within three months of the Islamabad incident and Mr. Kasuri had not even pointed the finger of suspicion at Mr. Bhutto in his F.I.R. for the Islamabad incident. Further, according to Mr. Yahya Bakhtiar, Mr. Kasuri’s statement under section 161 of the Criminal Procedure Code for this incident had been recorded by Agha Muhammad Safdar, D.S.P. and Mr. Kasuri bad in this statement suspected other persons for the attempt on his life. This statement from the Bar was made on the basis of a copy of this section 161’s statement which had been supplied in the High Court by the Public Prosecutor to Mr. Awan, the learned counsel for Mr. Bhutto. But as this statement has not been brought on the record, I would point out here that it appears to have been reproduced seriatim by Mr. Justice Shafi-ur-Rehman in paragraph 16 of his report about his inquiry into the murder of Mr. Kasuri’s father. I will presently examine the question of the admissibility of this report. But according to the .report Mr. Kasuri had suspected Chaudhry Yaqub Maan for the attempt on his life in Islamabad and he had also said that he suspected;
“any person or persons who knew that he had been criticising the policies of the present Government, on his own accord, did this act for earning goodwill of the party in power.”
Mr. Kasuri has, however, denied having made any statement to the Police. Therefore, Mr. Batalvi submitted that if the appellant wanted to rely on this statement, ha should have examined Agha Muhammad Safdar, D. S. P., to prove that it had been recorded. I would have been inclined to agree with this submission but for one circumstance. This is that the learned Public Prosecutor had supplied a copy of this statement to Mr. Awan on au application by the accused in tote High Court. As this statement Could only have been supplied either under section 162 or under section 265-0 of the Criminal Procedure Code, I would agree with Mr. Yahya Bakhtiar that we should presume that the copy thus supplied to Mr. Bhutto’s learned counsel was a true copy of Mr. Kasuri’s statement. But a presumption under section 114 of the Evidence Act is rebutable, and Mr. Kasuri’s evidence would be sufficient to rebut this presumption.
However, whatever be the position if the matter had stood here, Muhammad Waris had conducted the investigation in the murder case from January ,1975 until the case was filed as untraced, and as .it was his duty to investigate into the local enmities of Mr. Kasuri and of his family, he was cross-examined on the question whether Mr. Kasuri’s statement for the Islamabad incident had been recorded under section 161 of the Criminal Procedure Code, His reply was “I do not remember if a statement of Ahmad Raza Kasuri forms part of that record under section 161, Cr. P. C. or in the Zimnies but I did ace it. The motive given of the assault at Islamabad had been given by Ahmad Raza Kasuri in his statement there”. In view of this evidence, the burden shifted to the prosecution to prove that Mr. Kasuri’s statement had not been recorded under section 161, Cr. P. C. and if its plea be true it would, no doubt, have been able to discharge this burden by examining Agha Muhammad Safdar, D.S.P. It could even have asked the Court to examine Agha Muhammad Safdar as a court witness. .As it did not, the only reasonable inference from the evidence is that Mr. Kasuri’s statement was recorded.
Mr. Batalvi attempted to overcome this difficulty by referring us to Mr. Kasuri’s speech in the National Assembly on the 24th of August, 1974. Mr. Kasuri referred in this speech to the attempt which had been made on his life, but he said that he would not voice his suspicion against anyone for the incident. As this speech was made within a few hours of the Islamabad incident, Mr. Batalvi wanted us to hold that no statement could have been made by Mr. Kasuri voicing his suspicions against anyone for the Islamabad incident as any such statement, be it to the police or to anyone else, would have been inconsistent with his speech in the National Assembly. I am not impressed by the argument. As Mr. Kasuri had not seen the assailants, he could only voice his suspicions and whilst a statement to the police was the proper place for voicing these suspicions, the National Assembly was not the proper place for voicing mere suspicions. Therefore, I see no inconsistency between Mr. Kasuri’s speech and the contention of Mr. Yahya Bakhtiar that Mr. Kasuri had made a statement to the police in which he had voiced his suspicion against the sycophants of Mr. Bhutto and against his cold enemy Chaudbry Yaqub Maan.
Accordingly, on the evidence I would hold that Mr. Kasuri had made a statement to the police which has been suppressed by the prosecution. This necessarily leads to an adverse inference against the prosecution and casts doubt on the suspicions voiced by Mr. Kasuri against Mr. Bhutto--for the Islamabad incident. But as this hardly helps the case of Mr. Bhtitto, Mr. Yahya Bakhtiar submitted that he was entitled to produce secondary evidence of this disputed statement as that statement had been deliberately withheld by the prosecution. The submission is correct., On the plain language of section 65 of the evidence Act, the accused was entitled to produce ‘any secondary evidence of Mr. Kasuri’s police statement. But as any secondary evidence would not, for example, mean hearsay evidence, Mr. Yahya Bakhtiar submitted that Mr. Kasuri had made a statement similar to his police statement in his evidence before Mr. Justice Shafi-ur-Rehman ; but as the prosecution would not produce that statement either, learned counsel submitted that the narration of Mr. Kasuri’s evidence in paragraph 16 of Mr. Justice Shafi-ur-Rahman’s report was secondary evidence of Mr. Kasuri’s statement within the meaning of section 65 of the Evidence Act, therefore, Mr. Bhutto was entitled to rely on it, and he invited us to bring Mr. Justice Shaff-ur-Rahman’s report on the record as evidence in this case or at least paragraph 16 of that report. The argument assumes that Mr. Justice Shaft-ur-Rahman has reproduced in paragraph 16 of his report a statement made before him by Mr. Kasuri, and if this assumption had been correct, I would have allowed Mr. Yahya Bakhtiar’s request, but the burden was on him to convince us that Mr. Kasuri had made a statement before Mr. Justice Shafi-urRahman as claimed by him.
Mr. Yahya Bakhtiar was not able to refer us to any evidence in support of his submission that Mr. Justice Shafi-ur-Rahman had recorded Mr. Kasuri’s statement but he thought that his submission was supported by the observations of his Lordship in para. 16 of the report. I have examined them. Mr. Justice Shafi-ur-Rahman has in this para. referred to the Islamabad incident and observed “the case (F.I.R. 346, P. S., Islamabad) was registered. Possible motives then disclosed by the complainant and noted by the investigating officer, D. S. P. were the following four.. Mt. Justice Shafi-ur-Rahman has `then set out’ the four motives...”.
The question is of the meaning of the words `then disclosed by’ the complainant and noted by the Investigating Officer----- I cannot read these words to mean that the statement which followed them was a reproduction of the evidence recorded by Mr. Justice Shafi-ur-Rahman. Therefore, learned counsel’s submission fails. But I am disturbed by the question whether the D S P referred to in the observation can be anybody other than Agha Muhammad Safdar. However, as this was not Mr. Yahya Bakhtiar’s case, it is not necessary to speculate on this possibility, and I would also reject learned counsel’s prayer for bringing the record on the record of this appeal.
However, the lengthy argument advanced by Mr. Yahya Bakhtiar on this point was only intended to prove that Mr. Kasuri had, for example, in his police statement, suspected one of his local enemies for the incident: Now even if he had, this suspicion could not prove that it was one of his local enemies who had fired on him, and on the other hand, even if Mr. Kasuri had not voiced such a suspicion, this could not by itself rule out the possibility that one of his local enemies had fired at him because of the evidence about his local enmities. Therefore, nothing turned on the police statement of Mr. Kasuri.
I would now turn to Mr. Yahya Bakhtiar’s submission that Mr. Kasuri’s conduct, after his father’s murder, falsified his evidence and proved that he had falsely levelled allegations against Mr. Bhutto for the murder. Now, it is not in dispute that Mr. Kasuri had rejoined Mr. Bhutto’s party after the case of his father’s murder had been filed as untraced, and as no person with any self-respect would join or rejoin a party headed by his father’s murderer, the submission has force. But the learned Judges of the High Court rejected this submission. They further held that Mr. Kasuri’s conduct in rejoining Mr. Bhutto’s party was strong evidence of Mr. Bhutto’s guilt, because he had forced Mr. Kasuri to rejoin his party, and this conclusion that Mr. Bhutto haft forced Mr. Kasuri to rejoin his party is based on the evidence about a conversation between Mr. Kasuri and Sated Ahmad Khan in 1975 and on intelligence reports (Exhs. P.W. 3/2-F, 3/2-H, 3/2-I and 3/2-J). I will, therefore, examine this evidence, but I would first refer to a couple of circumstances which escaped the attention of the learned Judges of the High Court.
In the first place, the learned Judges have Liven a finding that Sated Ahmad Khan had interfered in the investigation of the murder case in order to destroy evidence of the murder. This finding necessarily means that the witness was an accomplice, and as he was an accomplice, his evidence cannot be accepted without corroboration. Secondly, like the approver, Masood Mahmood, the witness had been detained by the Martial Law authorities for several months, and, as once again the prosecution has not taken the Court into confidence about the charges for which the witness was detained, it is obvious that the charges against him must have been very grave, Therefore, I would repeat here the warning given by Munir that--
“there is greater need of corroborative evidence when there is fear in the mind of the accomplice that the failure to establish the prosecution case will lead to his own prosecution.”
and I would further observe that the witness was obviously a very shrewd and intelligent man, so he did not need any tutoring from the prosecution. He was clever enough to know in which direction the wind was blowing and to trim his evidence accordingly. Therefore, his evidence cannot be accepted without strong corroboration.
The other circumstance to which the attention of the learned Judges was not drawn was that whilst circumstantial evidence can be of strong corroborative value, it has no corroborative value if it is reasonably capable of an innocent construction. As observed by Munir in his Law of Evidence (Pakistan edition), page 1439;
“A circumstance cannot furnish corroboration of the story of an accomplice against an individual accused, if it has either no criminal significance apart from details of the accomplice’s story which are not themselves proved by independent evidence, or if the circumstance is susceptible of an innocent explanation which the Court accepts as probable.”
This passage is based on the observation of Beaumont, C.J., in Shankarshet’s case to which I referred earlier, and, in my humble opinion, any other view would be inconsistent with the fundamental principle of our criminal jurisprudence that the burden of proving the guilt of an accused beyond reasonable doubt always remains on the prosecution.
I now turn to the evidence of the conversation between Sated Ahmad Khan and Mr. Kasuri about Mr, Komi’s rejoining the Pakistan People’s Party which impressed the learned Judges very much. And, I may first point out that Mr. Kasuri had resigned from the Pakistan People’s Party in 1973- and in this background, Saeed Ahmad Khan said.-
“as far as I recollect, it was somewhere in the middle of 1975, when there was a rift brewing between Ahmad Raza Kasuri and the Tehrik Chief Air Martial (Retd.) Asghar Khan, I was instructed by the Prime Minister that I should try to win over Ahmad Raza Kasuri and bring him back to the P.P.P. fold. I told him that I did not know Ahmad Raza Kasuri personally, but I will ask Mr. Bajwa to initiate the matter and I was told by Mr. Bhutto that Mr. Bajwa had already been instructed in the matter.”
This is all that the witness said about his conversation with Mr. Bhutto. I now turn to what he told Mr. Kasuri about this conversation. He said;
“In the first meeting I asked him (Mr. Kasuri) that since he had parted company with Air Martial Asghar Khan .... he might consider joining the Pakistan People’s Party, as he claimed to, be a Founder Member. On this, Ahmad Raza Kasuri turned round and said that `how could he join the party of which the Chairman was Mr. Z. A. Bhutto who had been responsible for the murder of his father and was after his blood’. I told him that it was all the more reason that he should make up with Mr. Bhutto and put his life in jeopardy as he knew that he was a marked man.”
Mr. Yahya Bakhtiar submitted that Saeed Ahmad Khan would not have talked in such a derogatory tone about Mr. Bhutto, and as even walls have ears, and as according to Mr. Batalvi, Mr. Bhutto was a dictator, I am unable to believe that Saeed Ahmad Khan would have dared to tell Mr. Kasuri that Mr. Bhutto was after his life. It is true that Mr. Kasuri has corroborated Saeed Ahmad Khan’s evidence, but as was aptly put by Mr. Batalvi, Mr. Kasuri had a love-hate relationship with Mr. Bhutto, and it is very obvious from his cross-examination that the element of hatred in this relationship was on the ascendant when he gave evidence. In these circumstances, I am not able to believe the evidence of these two witnesses on the question of Mr. Bhutto’s conduct and guilty mind, and what is relevant to the question of Mr. Bhutto’s guilty mind is not what Saeed Ahmad Khan told Mr. Kasuri, but what according to Saeed Ahmad Khan Mr. Bhutto had instructed him to do. I. quoted the relevant part of Sated Ahmad Khan’s evidence earlier, and it is clear that even if Saeed Ahmad Khan told Mr. Kasuri that Mr. Bhutto was after his blood, Saeed Ahmad Khan was adding a touch of melodrama on his own, because there is not a word about any such threat in Saeed Ahmad Khan’n evidence about what Mr. Bhutto had told him. .
However, even if we assume for the sake of argument that Mr. Bhutto initiated the efforts to get Mr. Kasuri back into his party, why had Mr. Kasuri rejoined the party ? It is true that Sated Ahmad Khan claims to have advised him to overcome his feelings. But the question was not merely of the witness’s overcoming his own feelings, but of desecrating his father’s memory. And if all that he aimed to do was to save himself from harassment, he could have retired from politics for a few years. There was no compulsion on him to remain in politics, and as I do not doubt that he was a man of honour, my assessment of his conduct is that he had rejoined Mr. Bhutto’s party, because as he got over the shock of his father’s death, he realised that suspicion was not evidence and that he was not justified in suspecting Mr. Bhutto for the murder. And, on the other hand, on his part, even if Mr. Bhutto was keen to get the prodigal back into the fold, how can this possibility lead to the inference that this was because his conspiracy had led to the murder of the prodigal’s father ? Even if we assume that it was Mr. Bhutto, who was keen to get Mr. Kasuri back into his party, there is another and very simple explanation of Mr. Bhutto’s conduct„ which was suggested by Mr. Batalvi’s own arguments. In order to prove the motive for the occurrence, Mr. Batalvi had taken us through the speeches made by Mr. Kasuri on the floor of the National Assembly, and even a casual perusal of these speeches, makes it apparent that Mr. Kasuri was a young politician of ability, therefore, even if Mr. Bhutto wanted to get him back into the party, it would mean that he wanted to strengthen his party by getting hold of a very able orator and to weaken the Opposition by depriving it of a very bold critic. And in my humble opinion, this explanation would be a much more reasonable explanation of Mr. Bhutto’s conduct, on the footing that he wanted Mr. Kasuri back in his party, than any other explanation.
I now turn to the intelligence reports which led the High Court to conclude that Mr. Kasuri was intimidated into rejoining Mr. Bhutto’s party. And, I would first refer to a short report dated 29th July 1975 by Saeed Abmad Khan, Exh. P.W. 3/2-E, which escaped the attention of the High Court. Saeed Ahmad Khan has written in this report
“Mr. Ahmad Raza Kasuri, MNA, has had number of meetings with me, the last one being at Rawalpindi on 28th July 1975. He has realised that his future lies with the Pakistan People’s Party of which he claims to be a member. On the Qadiani issue, he says that the attitude of Air Marshal Asghar Khan has been lukewarm -----Mr. Ahmad Raza Kasuri has requested for an audience with the Prime Minister at his convenience.”
I see nothing in this report to support the view that Mr. Kasuri was reluctant to rejoin Mr. Bhutto’s party. The next intelligence report, Exh. P.W. 3/2-F is by Abdul Hamid Bajwa and is dated 4th August 1975. It merely states that Abdul Hamid Bajwa was trying to detach Mr. Kasuri from the Tehrik-e-Istaqlal. .
The intelligence report dated 29th September 1975, Exh. P.W. 3/2-I, by Saeed Ahmad Khan is very revealing. It reads;
“Mr. Ahmad Raza Kasuri, MNA, now claims to have sobered down and become stable. His rough edges have been chiselled out, his political horizon has become clearer and is a progressive being.
Mr. Ahmad Raza, has categorically stated that he wishes to return to the fold and would carry out Prime Minister’s directives and can be used in any way desired by the. Prime Minister. He is prepared to take a head-on confrontation with Khar in the Punjab. He is quite conscious of the, fact that his lone vote in the National Assembly for the Government could not be of much consideration, but as a demagogue and ‘a Student Leader with a feudal lobby, he, cats be a common denominator, and can be utilized as such -----There is a case pending against him. Sardar Izzat Hayat and Zafar Ali Shah, member of the Rawalpindi Bar and others in the Court of Malik Muhammad Rafique, 1st Class Magistrate, Rawalpindi, on the charge of having removed the Pakistan Flag from the car of State Minister, Jamaldar, and the next date fixed for hearing is 20th of October, 1975. He obliquely hinted that this case may not be pursued and his harassment and that of Sardar Izzat Hayat may be stayed.
He is still anxiously waiting for audience with the Prime Minister.”
The intelligence report dated 21st November, 1975, Exh. P.W. 3/2-J, is by Abdul Hamid Bajwa and states ---
“Ahmad Raza Kasuri said he did feel that he is very much sobered now and wanted to co-operate with the Government, but he suspected that some third agency, which did not like these moves, wanted to create gulf ---Ahmad Raza Kasuri said that he may be given some guidance by the Prime Minister and he will act accordingly, but so far he has not been granted audience.”
I would also refer here to another intelligence report by Saeed Ahmad Khan dated 5th December 1975, Exh. P.W. 3/18-D, which escaped the attention of the learned Judges. It states --
46as per instructions I met Sardar Izzat Hayat formerly of Tehrik-e-Isteqlal on 4th December, 1975. He was most anxious that Mr. Ahmad Raza Kasuri, MNA may be given an audience with the Prime Minister---- He has assured me that Ahmad Raza has sobered down his edges founded off and is keen to rejoin the P.P.P. together with his band of supporters and workers----he is determined to rehabilitate himself and work as a close associate of the Prime Minister.
Ahmad Raza Kasuri is being pestered by the opposition parties to join them ...but again begs that he may not be kept on tenter hooks any more but be brought to the fold of the P.P.P. without further delay, and assures of complete loyalty to the Chairman. The irritants created by vested interests at the move of Ahmad Raza joining the party be kindly set aside, since the negotiations with him have now been carried on for the past six months with no results so far.”
utilized as such There is a case pending against him. Sardar Izzat Hayat and War Ali Shah, member of the Rawalpindi Bar and others in the Court of Mal ik Muhammad Rafique, 1st Class Magistrate, Rawalpindi, on the charge of having removed the Pakistan Flag from the car of State Minister, Jamaldar, and the next date fixed for hearing is 20th of October, 1975. He pbliquely hinted that this case may not be pursued and his harassment and that of Sardar Izzat Hayat may be stayed.
He is still anxiously waiting for audience with the Prime Minister.”
The intelligence report dated 21st November, 1975, Exh. P.W. 3/2-J, is by Abdul Hamid Bajwa and states ---
“Ahmad Raza Kasuri said he did feel that he is very much sobered now and wanted to co-operate with the Government, but he suspected that some third agency, which did not like these moves, wanted to create gulf . Ahmad Raza Kasuri said that he may be given some guidance by the Prime Minister and he will act accordingly, but so far he has not been granted audience.”
I would also refer here to another intelligence report by Saeed Ahmad Khan dated 5th December 1975, Exh. P.W. 3/l8-D, which escaped the attention of the learned Judges. It states ---
“as per instructions I met Sardar Izzat Hayat formerly of Tehrik-e. Isteqlal on 4th December, 1975. He was most anxious that Mr. Ahmad Raza Kasuri, MNA may be given an audience with the Prime Minister He has assured me that Ahmad Raza has sobered down his edges frounded off and is keen to rejoin the P.P.P. together with his band of supporters and workers he is determined to rehabilitate himself and work as a close associate of the Prime Minister.
Ahmad Raza Kasurl is being pestered by the opposition parties to join them...but again begs that he may not be kept on tenter hooks any more but be brought to the fold of the P.P.P. without further delay, and assures of complete loyalty to the Chairman. The irritants created by vested interests at the move of Ahmad Raza joining the party be kindly set aside, since the negotiations with him have now been carried on for the past six months with no results so far.”
These reports speak for themselves and they were merely marked as seen by Mr. Bhutto. It was only on the last of these reports of 5th December 1975 that Mr. Bhutto noted “I will see Ahmad Raza Kasuri in Pindi”, but despite this noting, Mr. Bhutto kept putting off Mr. Kasuri, so in his letter dated 30th January to Mr. Bhutto (Exh. P.W. 1119-D) Mr. Kasuri wrote “earlier I - have requested over half a dozen times to your M. S. for an interview with you, but to this date I have not received any reply from him. I wonder whether Major-General Imtiaz Ali ever made it known to you? Even on this letter Mr. Bhutto wrote “I will see him when it is convenient”. In these circumstances, it cannot reasonably be argued that Mr. Bhutto had coerced Mr. Kasuri into rejoining his party, and as it was Mr. Kasutl, who went on asking for art interview by letters and through other sources, I find it difficult to understand the submission that Mr, Kasuri was reluctant to join the party.
Mr. Batalvi, however, relied on Mr. Kasuri’s explanation for his almost desperate efforts to rejoin the party of Mr. Bhutto. This was that he (Mr. Kasuri) had put on an act to fool Mr. Bhutto “out of expediency to save my life” Mr. Batalvi also relied on the fact that the High Court had accepted this explanation of the witness. However, the High Court was also of the view that the conspiracy to murder Mr. Kasuri had continued after 11th November 1974. But Mr. Batalvi was not able to defend the view taken by the High Court. This is for the obvious reason that Masood Mahmood said in his evidence that be had told Mr. Bhutto on the night of 11th November 1974 that he would have nothing further to do with the attempts to kill Mr. Kasuri, and as there is no evidence whatever to show that Mr. Bhutto had made any attempt to instruct any one else to kill Mr. Kasuri, it would follow, if Masood Mahmood spoke the truth, that the alleged conspiracy had come to an end. And as Mr. Batalvi wanted us to accept Masood Mahmood’s evidence, he did not contend that the conspiracy had continued after the 11th November 1974. Necessarily, this means that Mr; Kasuri’s apprehensions about his life were not justified, and this casts further doubt on the alleged conversation between him and Saeed Ahmad Khan about which I have already indicated my views. However even if we assume that Mr. Kasuri had put on an act, it would mean that he had successfully deceived Mr. Bhutto and at least Abdul Hamid Bajwa for nearly two years, and if he was such a consummate actor, he was also capable of deceiving the Court, therefore, it would not be safe to rely on his evidence on this ground. Additionally, as I suggested earlier, even if we assume that the witness’s explanation was true, all he had to do was to retire from politics. Therefore, this alleged apprehension of his life was no justification for his pestering Mr. Bhutto for an interview or for going round the country singing praises of Mr. Bhutto. And as I showed earlier, his own letter proved that he had repeatedly sought an interview with Mr. Bhutto which was granted very reluctantly by Mr. Bhutto. Here, Mr. Yahya Bakhtiar drew our attention to Mr. Kasuri’s report dated 8th June 1976, Exh. P.W. I/20-D, in which Mr. Kasuri had expressed blind admiration for Mr. Bhutto. Similarly, Mr. Kasuri admitted, but only in cross-examination, that he used to address meetings of a group known as the Tehrik-i-Fikr-i-Quaidi-Awam, and the object of this group was “propagating the thoughts of Mr. Bhutto”. As no man with any self-respect would go round the country propagating the thoughts of a man, who was his father’s murderer, in my opinion, Mr. Kasuri had voluntarily rejoined the party, because he realised, after he got over the shock of his bereavement, that he had many other enemies, therefore, his suspicions about Mr. Bhutto wore not justified. It is true that the witness gave another explanation in the witness box, but in doing so, he did himself less than justice, and as far as I can see, he was merely carried away by the highly charged atmosphere of the time when he gave his evidence.
As even Mr. Kasuri’s conduct is thus inconsistent with his suspicion about Mr. Bhutto, to say the least, it is difficult to understand Mr. Batalvi’s submission that the prosecution had proved beyond reasonable doubt that Mr. Kasuri bad- no enemy in 1974 except Mr. Bhutto. However, learned counsel’s submission was based on the evidence of two Police Officers, Mohammad Asghar and Mohammad Waris. As I pointed out, Mobammad Asghar was the Senior Superintendent of Police, Lahore till the end of 1974 and had supervised the investigation of the murder of Mr. Kasuri’s father, whilst, Mohammad Waris took over the investigation of the case on 2nd January 1975. Both these officers conducted their investigations when Mr. Bhutto was in power, and they said that pressure was exercised on them because Mr. Bhutto had been implicated in the F.I.R. and that this pressure had prevented them from investigating the case properly. If this claim be true, it would follow that there was no pressure whatever on them not to investigate into the local enmities of Mr. Kasuri, and Mohammad Waris had admitted that he had been directed to investigate the disputes of the Kasuri family and local rivalries and hatreds against the witness. Accordingly, the evidence of these two witnesses has to be examined in this background.
Mohammad Asghar said in his evidence that he could not remember whether a case had been registered at the instance of Mr. Kasuri against Chaudhry Yaqub Maan. Apart from Mr. Kasuri’s evidence to which I have referred, Mohammad Waris admitted that four cases had been filed by Mr. Kasuri against Chaudhry Yaqub Maan, therefore, to say the least, the evidence of Mohammad Asghar does not inspire confidence, as it is difficult to believe that having investigated the case, he did not know of the bitter hatred between Mr. Kasuri and Chaudhry Yaqub Maan. Mr. Batalvi, however, relied on the following statement of Mohammad Asghar
“I knew about the differences of Ahmad Raza Khan Kasuri with Yaqub Maan, but there was no enmity...”
It is impossible to reconcile this categorical assertion of the witness that there was no enmity between Mr. Kasuri and Chaudhry Yaqub Maan with Mr. Kasuri’s evidence about Chaudhry Yaqub Maan’s attacks on him, and especially with the lurid description about Chaudhry Yaqub Maan’s attack on him which is contained in the F.I.R. lodged by Mr. Kasuri on 17th January 1972. Therefore, at first sight, the statement of the witness appears to be a deliberate attempt to deceive and misguide the Court. I have, however, used the words at first sight because to my astonishment, I find that this statement of the witness was made in reply to questions put to him in cross-examination by Mr. Awan on behalf of Mr. Bhutto. As a witness may be taken by surprise by questions put in cross-examination, it is possible that Mohammad Asghar had not investigated the local enmities of Mr. Kasuri in 1974, and so when he was suddenly questioned about them he gave an impromptu reply recklessly and with the sneaking hope that it would also bolster up the prosecution case. But if he had investigated the local enmities, and these are the only two possibilities, then it is clear that he deliberately gave false evidence in Court. In either view of the matter, no reliance can be placed on his evidence.
I am unable to understand Mr. Awan’s cross-examination of Mohammad Asghar for another reason also. Apart from the fact that the witness was likely to give a damaging reply, the evidence of a Police Officer about enmities in a criminal case may be relevant at the investigation stage, but that stage was long over when the witness was examined. And as Mr. Kasuri had admitted that his cases against Chaudhry Yaqub Maan were pending in the criminal Courts, the witness’s opinion on the question whether the enmity between Mr. Kasuri and Chaudhry Yaqub Maan had come to an end was his personal opinion, and as the question of giving expert opinion did not arise, I cannot understand the questions put by Mr. Awan to the witness, and because Mr. Kasuri’s cases were pending, the only way of proving that the differences between the two parties had or had not come to an end was by the evidence of the parties concerned, or by evidence that the cases had been settled, if they were compoundable. But it is clear from the evidence which I have quoted that the cases registered for the occurrences in Kasur and Khudian must have been under section 307 of the Penal Code, therefore, the only way of proving that the enmities reflected in these cases had come to an end was by the evidence of the parties themselves. And as Chaudhry Yaqub Maan was not examined, whilst Mr. Kasuri stated that the cases were pending, Mohammad Asghar’s opinion was completely irrelevant.
I now turn to Mohammad Waris’s evidence; unlike Mohammad Asghar, this witness had stated in his examination-in-chief;
“The investigation conducted by me into the alleged family disputes of Ahmad Raza Kasuri, the alleged disputes with local persons and those about the distribution of family property led to no worthwhile results, whatsoever. Only minor differences were discovered which in my opinion could not form the motive for this offence.”
At the risk of being tedious, I would repeat that the opinion of this witness is not relevant, because the question whether enmities between the parties to criminal litigation have come to an end or not, is not a matter of expert opinion. Secondly, whilst it is likely that the family disputes of the Kasuri family had come to an end, as stated by the witness, his categorical assertion that the differences with other “local persons also were minor differences” is completely inconsistent with Mr. Kasuri’s evidence and either Mr. Kasuri has given false evidence or Mohammad Waris has given false evidence. So Mohammad Waris was cross-examined by Mr. Awan, and he admitted that Mr. Kasuri had filed four complaints against Chaudhry Yaqub Maan. But he merely said “I, however, found as a result of my investigation that the dispute amongst Yaqub Maan’s party and Ahmad Raza Kasuri had come to an end and the cases had, therefore, been closed”. In view of the F.I.R. recorded by Mr. Kasuri for the occurrence of 17th January 1972 in Khudian, this statement is, to say the least, astonishing and is not supported by a shred of evidence. The witness was further cross-examined and it was only then that he said “I was told that out of them two cases were pending in some court in January 1975”. As at least two of the cases filed by Mr. Kasuri were under section 307 of the Penal Code they could not have been settled, and, it was the duty of the witness, as he was investigating the murder, to find out whether they had been disposed of or not. I have no doubt that he had made the investigations and he knew very well that they were still pending, therefore, it is clear that this witness sought to misguide the Court by trying to suppress the evidence of the local enmities of Mr. Kasuri, and no reliance can be placed on his evidence either.
In the circumstances, discussed, the prosecution case about the motive for the murder fails for more reasons than one. In the first place, Mr. Kasuri’s evidence is nothing more than a statement of his reasons for suspecting Mr. Bhutto. Secondly, Mr. Kasuri was not a disinterested witness and his bias is apparent from the contradictions is his evidence and from his efforts to withhold evidence of his enmities with people like Chaudhry Yaqub Maan: Thirdly, as the criminal cases arising out of these local enmities and hatreds are still pending, I am loath to make any observations about them. But as Mr. Bhutto’s appeal cannot be decided without some reference to these local enmities and hatreds, I would emphasise that my observations have reference A only to this appeal, and for the purpose of this appeal I am satisfied from the evidence of Mr. Kasuri that the local enmities and hatreds against him were far more violent than the alleged enmity between him and Mr. Bhutto. Accordingly, in these circumstances, Mr. Kasuri’s evidence is too weak to furnish any corroboration of Masood Mahmood’s evidence.
It would be convenient to turn now to the evidence in support of the allegation that Mr. Bhutto had prevented investigations of the murder with the result that the case was filed as untraced. The star witness in support of this allegation was Niazi whose evidence I have already examined in detail, so I would turn to the evidence of Abdul Wakil Khan and Mohammad Asghar and Saeed Ahmad Khan.
As Abdul Wakil Khan was the Deputy Inspector-General of Police in 1974, he had very little to do with the investigations and, contrary to what Mohammad Asghar said, Abdul Wakil Khan denied even attending the conference called by the Inspector-General of Police in his house on the night of 11th November 1974. But he said that one or two days after the occurrence Abdul Hamid Bajwa had met him at the Police Station, Civil Lines, Lahore, and Mohammad Asghar was also present. Next, according to the witness;
“Mr. Bajwa enquired from me as to why the name of the then Prime Minister had been recorded in the F. I. R. . . : Mr. Bajwa suggested that a report could be recorded on the statement of any other person saying that the fire was opened by some unknown persons and the accused had fled away and the name of the Prime Minister thus could have been avoided.”
The witness also said that Abdul Ahad had told him about a fortnight after the murder that Abdul Hamid Bajwa had taken away the empties for some time and as according to the witness Abdul Hamid Bajwa was closely associated with the FSF, he merely told Abdul Ahad that he should not have handed over the empties to Abdul Hamid Bajwa and left it at that.
As Abdul Wakil Khan has given evidence about what Abdul Ahad had told him, and as Abdul Ahad is dead, the prosecution can rely on Abdul Wakil Khan’s evidence about what he had been told by Abdul Mid only if it can bring its case under section 32 of the Evidence Act. Now, the High Court was of the view that the statements attributed to Abdul Ahad the witnesses, fell within the mischief of clause (3) of section 32 of the evidence Act, because those statements if true “would have exposec3 (Abdul Ahad) to a criminal prosecution” The view taken by the High Court assumes that Abdul Ahad had concealed evidence within the meaning of section 201 of the Penal Code and this view, is based on the further conclusion reached by the High Court that empties had been substituted as claimed by Niazi. With due respect to the learned Judge, I am not, able to agree with their conclusions.
In the first place, even on the footing that Abdul Wakil Khan’s evidence about Abdul Ahad’s statements was admissible, the question was whether-this evidence was fit to be relied upon, and whilst Abdul Wakil Khan said that Abdul Ahad had told him that Abdul Hamid Daiwa had taken away the empties; Niazi has said that Abdul Ahad had told him that the Inspector-General of Police had taken away the empties. Mr. Batalvi was silent on the question of which of these conflicting versions was correct, and this discrepancy in the prosecution case only illustrates the danger of relying on hearsay evidence. Secondly, the statements attributed to Abdul Ahad were relied upon by the High Court because of the finding that empties had been substituted, but Mr. Batalvi did not defend this finding of the High Court. He only relied on a theory of high probabilities, but as I have shown there is not a shred of evidence in support of this theory, because Niazi was a dishonest witness. Therefore, on the footing that what Abdul Hamid Daiwa said to Abdul Wakil Khan was true, the question is whether this statement would have exposed the deceased to a criminal prosecution 7 Even Mr. Batalvi did not contend that the mere taking of the empties by the deceased would have brought him within the mischief of section 201 of the Penal Code. I have also examined the other sections such as 202, 203, etc., which deal with accessories after the fact, but I do not think the conduct of the deceased would have come under these sections. In any case, as Mr. Batalvi was not able to refer us to any section under which the deceased would have been guilty, his statement or statements (about which the prosecution evidence is so discrepant) do not fall within the ambit of clause (3) of section 32 of the Evidence Act. Therefore, I would hold that the statements attributed to him are pure hearsay and were wrongly admitted in evidence.
In view of this conclusion, it is not necessary to examine the further question whether the alleged removal of the empties by Abdul Hamid Daiwa was on Mr. Bhutto’s orders because unless it was, on the plain language of section 8 of the Evidence Act, the conduct of Abdul Hamid Daiwa cannot be used against Mr. Bhutto as a piece of evidence either by itself or to furnish corroboration of the evidence of the approvers.
Finally, reverting to Abdul Wakil Khan’s evidence, he also said that Saeed Ahmad .Khan had come over from Rawalpindi in January 1975 and convened a conference in which he had transferred the investigation of the case to Mohammad Waris. Therefore, the witness had directed Abdul Ahad and Mohammad Waris to proceed to Rawalpindi and take instructions from Saeed Ahmad Khan which they had done. Abdul Wakil Khan also said that Saeed Ahmad Khari had said at this meeting that the case ‘was not being properly investigated and that he had been sent from the Prime Minister’s Secretariat to look into the case”.--Merely, because the Prime Minister sent his representative to say that the case should be properly investigated cannot mean that Mr. Bhutto had acted illegally, and further as Mr. Batalvi conceded there was no impropriety whatsoever in Saeed Ahmad Khan’s conduct, it is clear that Abdul Wakil Khan’s evidence fails to lend any support to Mr. Batalvi’s submission that Mr. Bhutto was interfering with the investigation in the murder of Mr. Kasuri’s father.
I now turn to Mohammad Asghar’s evidence and I have explained why his evidence about the local enmities of Mr. Kasuri is not fit to be relied upon. Apart from this evidence, like Abdul Wakil Khan, Mohammad Asghar said that Abdul Hamid Daiwa had criticised him for mentioning Mr. Bhutto’s name in the F.I.R and had made unnecessary enquiries about the empties. Even if we assume that this evidence is admissible and reliable, it does not help the prosecution case because it is not sufficient to establish that there was any illegal interference with the investigations, much less that it was illegal interference on Mr. Bhutto’s orders. But according to the witness the Inspector, General of Police had tried to interfere, and this allegation had reference to the claim of the witness and of Niazi that the Inspector General of Police had called a meeting at his house on the night of the 11th November 1974. Further, according to the witness “the I. G. had ordered me to remove the dead body of Nawab Mohammad Ahmadj Khan from-his house and bury it somewhere”. Apparently, this was the only interference on the part of the Inspector-General of Police. But the Inspector-General has not been examined, and as I am reluctant to believe that an Inspector-General of Police could be so stupid as to have passed the order attributed to him, I am not inclined to believe Mohammad Asghar’s evidence, the more so, as I have found his evidence about the local enmities of Mr. Kasuri to be totally unreliable.
Mohammad Asghar, however, said and this is what Mr. Batalvi relied on :
“As S. S. P., Lahore I did not have a free hand in the investigation of the case, because during that investigation instructions were being issued by Mr. Abdul Hamid Bajwa and Mr. Saeed Ahmad . Khan, which we had to obey.”
Nothing turns ‘on the fact that “instructions” were given to the witness, but the question is whether these instructions were legal or illegal. And as the witness did not give any particulars whatever of these instructions in his examination-in-chief, he was cross-examined about them, because he had taken a totally different position before Mr. Justice Shafi-ur-Rehman. The witness was compelled to admit that he had not advanced any such allegations before Mr. Justice Shaft-ur-Rehman, and his explanation was;
“permit me to explain and say that there was lot of pressure being brought to bear upon me...”
But the question, as I said, was of the details of this pressure, so M Awan went on questioning the witness about the details of this and the witness said; `
relied upon. Apart from this evidence, like Abdul Wakil Khan, Mohammad Asghar said that Abdul Hamid Bajwa had criticised him for mentioning Mr. Bhutto’s name in the F.I.R and had made unnecessary enquiries about the empties. Even if we assume that this evidence is admissible and reliable, it does not help the prosecution case because it is not sufficient to establish that there was any illegal interference with the investigations, much less that it was illegal interference on Mr. Bhutto’s orders. But according to the witness the Inspector General of Police had tried to interfere, and this allegation had reference to the claim of the witness and of Niazi that the Inspector-12 General of Police had called a meeting at his house on the night of the 11th November 1974. Further, according to the witness the I. G. had ordered me to remove the dead body of Nawab Mohammad Ahmad Khan from-his house and bury it somewhere”. Apparently, this was the only interference on the part of the Inspector-General of Police. But the Inspector-General has not been’ examined, and as I am reluctant to believe that an Inspector-General of Police could be so stupid as to have passed the order attributed to him, I am not inclined to believe Mohammad Asghar’s evidence, the more so, as I have found his evidence about the local enmities of Mr. Kasuri to be totally unreliable.
Mohammad Asghar, however, said and this is what Mr. Batalvi relied on “As S. S. P., Lahore I did not have a free hand in the investigation of the case, because during that investigation instructions were being issued by Mr. Abdul Hamid Bajwa and Mr. Saeed Ahmad Khan, which we had to obey.”
Nothing turns ‘on the fact that “instructions” were given to the witness, but the question is whether these instructions were legal or illegal. And as the witness did not give any particulars whatever of these instructions in his examination-in-chief, he was cross-examined about them, because he had taken a totally different position before Mr. Justice Shafi-ur-Rehman. The witness was compelled to admit that he had not advanced any such allegations before Mr.Justice Shad,-ur-Rehman, and his explanation was:
“permit me to explain and say that there was lot of pressure being brought to bear upon me...”
But the question, as I said, was of the details of this pressure, so Mr. Awan went on questioning the witness about the details of this pressure and the witness said
“We start investigations of `blind’ murder cases on the basis of the motive. In. this case the motive was clearly mentioned by Mr. Ahmad Rata Kasuri in the F. I. R. The case could be investigated only-by interrogating Mr. Bhutto who had been named in the F. 1. R, Neither myself nor my subordinates were in a position to interrogate the then Prime Minister. The question of satisfaction or dissatisfaction is, therefore, irrelevant.”
Next, as to what prevented the witness from. Interrogating Mr. Bhutto, Owe answer given very reluctantly and after repeated efforts to evade a clear reply, was
“I have already stated that pressure was exerted on me, but I have
not stated that I accepted the pressure. The only pressure on my mind was that I was not in a position to interrogate Mr. Bhutto.”
Thus on the witness’s own admission, although he began by asserting very vehemently that pressures had been brought to bear on him, he had to confess that the only pressure which prevented him from discharging his duties was his own timidity in seeking an interview with the Prime Minister in order to interrogate him. But is even this story plausible 7 Even Mr. Batalvi did not contend that the F. I. A. had reopened the investigation in 1977 by questioning Mr. Bhutto, and if investigation could start in the case in 1977 without questioning Mr. Bhutto, I am not able to understand why Mohammad Asghar could not commence investigations in the case without first examining Mr. Bhutto.
Additionally, the proper investigation of the case required that he should question Mr. Kasuri, his mother and his aunt who were with him at the time of the murder. But Mr. Kasuri said categorically in his evidence “the Police did not contact either me or my mother or my aunt in connection with investigation of any nature”. It was for Mohammad Asghar to explain why he could not interrogate Mr. Kasuri and his family, but he has given no explanation. Similarly, it was his duty to investigate into the local enmities of Mr. Kasuri, but there, as I have explained, the evidence given by him is unfit to be relied upon. Again, assuming that he was too timid to record the statement of Begum Kasuri and her sister, his explanation that it was a blind murder is not true, because the empties recovered from the scene of the murder made it clear that the weapons used by the assailants were of 7.62 mm. calibre, and thus the recoveries pointed the finger of suspicion at the FSF. But as Mohammad Asghar has not explained why he did not commence investigations against the FSF, we can only speculate about the motives for his failure to supervise the investigations properly. Mr. Batalvi of course wanted us to hold that the hand of Mr. Bhutto was behind everything. But as Masood Mahmood has confessed his guilt, we would be substituting evidence by conjecture, if we were to accept Mr. Batalvi’s submission. Therefore, whilst the evidence of this witness proves that what went wrong with the investigations was the failure to touch the FSF, his evidence cannot furnish any corroboration whatsoever of Masood Mahmood’s evidence for the simple reason that the witness would not state why he had not instituted an investigation into the possible role of the FSF in the murder.
I would now turn to Mohammad Waris’s evidence. This witness took over the investigations on 2nd January, 1975 and he repeated what the other two witnesses had said about the advice given by Saeed Ahmad Khan and Abdul Hamid Bajwa that as the Prime Minister’s name had appeared in the F. I. R. “we should proceed with wisdom and caution”, and that the Prime Minister had been falsely implicated. The witness also said that on Saeed Ahmad Khan’s orders, he and Abdul Ahad had made enquiries about weapons of 7.62 mm. calibre from the Joint Army Detection Organization and learnt that they had been supplied to units iii the Army and to the Frontier Corps, and they had also discovered that weapons of 7.62 mm, calibre were available for sale in Bara. I see no impropriety whatever in the information thus collected by the witness nor in the orders given to him to collect such information. Similarly I see no impropriety whatever in the direction given to the witness by Saeed Ahmad Khan and Abdul Hamid Bajwa to enquire into the local enmities of Mr. Kasuri and indeed, in my opinion, proper investigation of the case was not possible without an inquiry into these local enmities. The real question however was why no attempt was made, to use the words of the witness: “to join any employee of the FSF in the investigation of the case” and the witness said that he failed in his duty to conduct such investigations, because of the pressure brought on him by Saeed Ahnad Khan. But even this evidence does not furnish any corroboration of the prosecution case against Mr. Bhutto or any corroboration of the evidence of Masood Mahmood, because the witness has implicated Saeed Ahmad Khan, and not Mr. Bhutto. Therefore, the prosecution can succeed only if it can prove that Saeed Ahmad Khan had, on Mr. Bhutto’s orders, prevented Mohammad Waris from investigating the case properly, so I would now turn to Saeed Ahmad Khan’s evidence.
Saeed Ahmad Khan said that Mr. Bhutto had directed him in January 1975 to look into the case because his (Mr. Bhutto’s) name was “being taken before a judicial enquiry being held at Lahore by Justice Shafi-ur-Rehman”. Accordingly, the witness went to Lahore, convened a meeting of high officers, as directed by Mr. Bhutto, and found to his dismay “that nothing had been done worthwhile in the investigation of this case, although over one and a half months had passed since the time of the murder”. Accordingly, the witness transferred the investigation to Mohammad Waris, and as I pointed out earlier, it is nobody’s case that the transfer of the investigations to Mohammad Waris by itself amounted to illegal interference in the investigations. Next, according to the witness, he came to know that the bullets used in the murder were of 7.62 mm. calibre which were in the official use of the FSF, and his impression was that the Police were not investigating the case because the FSF appeared to be involved in the murder. He therefore, returned to Rawalpindi and informed both Mr. Bhutto and Masood Mahmood that 7.62 mm. calibre bullets had been used in the murder, but the witness said both Mr. Bhutto and Masood Mahmood put him off and Mr. Bhutto told him to find out whether bullets 7.62 mm calibre were available in the country. Accordingly, the witness said that he had directed Mohammad Asghar and Abdul Ahad to make enquiries from Bara as well as from the Joint Army Organization. I pointed out earlier that the direction by the witness to make those enquiries was in no way improper and so ever, if the witness’s evidence be true, it does not implicate Mr. Bhutto in any way. But, according to the witness, when he discussed with Mr. Bhutto, his apprehension that the bullets used in the occurrence implicated the FSF, Mr. Bhutto snubbed him “and said in so many words keen out the FSF”. This conversation, if true, would certainly be a piece of evidence against Mr. Bhutto, but reverting to the witness’s evidence, he said that he had also made enquiries from the Defence about arms and ammunition of 7.62 mm. calibre and the Defence Secretary had informed him by a letter that arms and ammunition of this calibre had beers issued to the Frontier Corns, the FSF and to Army units.
The witness then said about the Defence Secretary’s letter:
“On receiving letter Exh. P. W. 3/3-C I got perplexed because in it was mentioned that the Chinese weapons are in the use of the F. S. F. and I had been given positive instructions by the Prime Minister that F. S. F. be kept out. I had no other alternative but to go back to the Prime Minister and I met him and showed him this D. O. letter of the Defence Secretary and enquired as to whether this letter to be produced before the tribunal. On that Mr. Bhutto got infuriated and said, “Have I sent you to safeguard my interests or to incriminate me? This letter will certainly be not produced before the tribunal. You are trying to become over-clever and if you don’t behave you will suffer the consequences which your progeny will not forget.”
As Mohammad Waris had not associated “any employee of the FSF in the investigation of the case”, on account of Saeed Ahmad Khan’s orders, if Saeed Ahmad Khan’s evidence about these conversations with Mr. Bhutto be true, it would furnish strong corroboration of Masood Mahmood’s evidence. And as the High Court has believed this evidence, Mr. Yahya Bakhtiar submitted that the view of the High Court was based on a patent misreading of the evidence, because the learned Judges had ignored all the infirmities in Saeed Ahmad Khan’s evidence.
In support of this submission, learned counsel reminded us that the witness had been dismissed from service in the 1969 Martial Law. As it is not known why the witness was dismissed, this does not help Mr. Bhutto’s case, but the witness was compelled to admit in crossexamination that he was demoted by Mr. Bhutto in 1977 and was under a cloud thereafter. As the witness also admitted that his brother had been removed from service on Mr. Bhutto’s orders, it is clear that he was a disgruntled witness. However, reverting to Mr. Yahya Bakhtiar’s submission, he invited us to reject the evidence of the witness on the further ground that it was riddled with discrepancies. It is true that the evidence of the witness is riddled with discrepancies ; however, I would not burden the record by setting them out, because the evidence of the witness cannot be accepted without corroboration for another very obvious reason. This is because both Mohammad Asghar and Mohammad Waris have said in evidence that Saeed Ahmad Khan had illegally interfered in the investigations, and if this evidence be true, it would mean that Saeed Ahmad Khan had helped to conceal and destroy evidence in a murder case within the meaning of section 201 of the Penal Code. And as the High Court has accepted the evidence of these two witnesses, it follows that Saeed Ahmad Khan was an accomplice, therefore, his evidence cannot be accepted without corroboration. But his evidence of his two conversations with. Mr. Bhutto in which Mr. Bhutto told him to keep the FSF out of the investigations is not supported by any evidence whatsoever. Again, as submitted by Mr. Yahya Bakhtiar, the witness was detained for some months under Martial Law, and one of the prosecution witnesses, Khizar Hayat, admitted that the Martial Law Authorities had seized more than a thousand files about him and that one or more investigations were: being conducted into his activities. This is another circumstance which reacts against his veracity.
However, the witness’s claim was that his detention by the Martial Law Authorities bad made him realise what a sinner he had been, and like Masood Mahmood, he claims to have made a clean breast of everything. Now, as his lengthy statement under section 161 of the Criminal Procedure Code was recorded after the witness had undergone this spiritual purification it would follow he would not omit any material circumstance in this statement. Additionally, not only was the witness an extremely experienced Police Officer, he was also an advocate, and as he had practised law, it would be ridiculous to contend that he did not know the crucial importance to the prosecution case of the two conversations with Mr. Bhutto in which Mr. Bhutto had warned him to “keep the FSF out”, but as there is no reference whatsoever to those alleged conversations in his earlier statements, I am unable to believe the witness’s evidence about these two conversations, and I regret my inability to agree with the view of the High Court that there were “no inconsistencies or contradictions” between his earlier statements and his evidence in Court.
But Saeed Ahmad Khan was not the only witness who had made material omissions in his earlier statements. So did Masood Mahmood, and as I will presently show, there were also material omissions in the earlier statements of Ghulam Hussain and Fazal Ali. Therefore, Mr. Batalvi submitted that Courts should not make much of discrepancies between the evidence of a witness in Court and his Police statement, because the Police usually recorded such statements in a very cursory manner. Learned counsel even produced judgments in support of this extraordinary submission. The point is elementary, so I would only observe that statements under section 161 of the Criminal Procedure Code do not have to record the minor details of a witness’s evidence, but it is the duty of the Police Officer to record every material particular of a witness’s statement, and if he does not, it is the prosecution which must suffer, and material omissions in Police statements cannot be explained away on the ground that those statements were recorded hurriedly. Any other view would defeat the v provisions of sections 161, 162 and 265-C of the Criminal Procedure Code, which have been enacted in order to enable the accused to discredit the veracity of prosecution witnesses, if their evidence in Court is different in material particulars from Police statement, Further, as the improvements in Saeed Ahmad Khan’s evidence are; relied upon the evidence of an approver, I would quote here Munir dictum in his Law of Evidence, page 1445;
“Evidence of witness whose statements to the Police differ from their evidence in the Court of enquiry or trial should not be accepted as good corroboration of an accomplice.”
So the question. whether Saeed Ahmad Khan’s evidence can be relied upon must :- judged in the light of this dictum. Secondly, as Saeed Ahmad Khan’s Police statement was recorded by a Police Officer (Chaudhry Abdul Khaliq) far junior to him in service, it is impossible to believe that Chaudhry Abdul Khliq would have not recorded Saeed Ahmad Khan’s statement about these conversations with Mr. Bhutto, if Saeed Ahmad Khan had mentioned them. Thirdly, even a lay man would have appreciated the relevance of these alleged conversations with Mr. Bhutto, therefore, as it is not the prosecution case that Chaudhry Abdul Khaliq was a congenital idiot, and as it is clear from his evidence that he was an intelligent man, I am unable to believe that he would not have recorded properly Saeed Ahmad Khan’s statement, the more so, in view of the importance of the case. Accordingly, in the circumstances discussed I am satisfied that Saeed Ahmad Khan deliberately made false statements in Court when he said that Mr. Bhutto had told him twice to keep the FSF out of the investigations. And this further means that the prosecution has failed to prove that Mr. Bhutto had illegally interfered in the investigations of the murder case.
I would now, in the light of this discussion, re-examine Saeed Ahmad Khan’s evidence about his meeting with Mr. Bhutto “in mid1974” in which Mr. Bhutto said--
“that he had given some work to Mr. Masood Mahmood...about Ahmad Raza Kazuri, `remind him’.”
As I suggested earlier, this evidence could be a strong link in a chain of corroboratory evidence if it was by an independent and reliable witness, and that was Mr. Batalvi’s submission. But the difficulty in his way was the finding of the High Court that the witness had illegally interfered with the investigations of the murder case. This finding necessarily means that the witness was an accomplice and as an accomplice cannot be an independent witness, Mr. Batalvi submitted that the High Court had erred grievously in holding that Saeed Ahmad Khan had illegally interfered with the investigations. Learned counsel submitted that Saeed Ahmad Khan was convinced of Mr. Bhutto’s innocence and because of this conviction, he had merely given directions to Mohammad Waris and others for the proper investigation of the case. Now, as I indicated earlier, I would agree with the submission to the extent that there was nothing improper in the transfer of the investigations by the witness from Niazi to Mohammad Waris or in the directions given by the witness to Mohammad Waris to investigate the local and family disputes of Mr. Kasuri and to collect information about the availability of weapons of a prohibited bore in the country. And if the matter had rested here, I would have taken the view that Saeed Ahmad Khan was an independent but unreliable witness. But unfortunately, for Mr. Batalvi’s submissions, the matter does not end here, because of Mohammad Waris’ categorical assertion that Saeed Ahmad Khan had prevented him from joining “any employee of the FSF in the investigation of the case”. And, as it was this direction which prevented proper investigation of the case, it is clear that Saeed Ahmad Khan was an accomplice and in view of this and the other infirmities in his evidence, his evidence of his conversation with Mr. Bhutto “in mid-1974” can, at the highest, only be a very weak link in the chain of corroboratory evidence, therefore, once again I regret my inability to agree with the view taken by the High Court on this point also.
‘Saeed Ahmad Khan had also produced the intelligence reports prepared by him and by Abdul Hamid Bajwa, and Mr. Batalvi submitted that these reports furnished corroboration of the prosecution case and of Masood Mahmood’s evidence, because they were consistent only with Mr. Bhutto’s guilt. Further as learned counsel placed very great reliance on three of these reports, Exh. P. W. 3/2-L, Exh. P.W. 3/2-Q and Exh. P.W. 28/ about the surveillance on Mr. Kasuri after his father’s murder, it is necessary to examine them, the more so, as the High Court has also placed very great reliance on them. ‘ The first of these reports is by Abdul Hamid Bajwa and is dated 29th October 1974. This report states that Mr. Kasuri had kept a gun-man for his protection in the National Assembly ; that his father bad been the holder of fire-arms including a prohibited bore revolver ; and, that he intended to request the Speaker of the National Assembly to allow him to retain “these weapons as souvenir”. The second report, Exh. P.W. 3/2-Q, is also by Abdul Hamid Bajwa and is dated 9th December 1974. It states that Mr. Kasuri was in a very bitter and angry mood and was making aggressive speeches against Mr. Bhutto. But it is not irrelevant to mention here that the report also refers to a cocktail party given by a petty official of an Embassy with a list of the persons, who had attended that party. Finally, the last report is by Ashiq Hussain ‘Lodhi about Mr. Kasuri’s gun-man to which I referred in detail earlier. Now, after examining these reports, the learned Judges of the High Court held that they proved Mr. Bhutto’s ------
“witch-hunting against Ahmad Raza Kasuri even after the Lahore occurrence ...There could be no other object of collecting information about the security measures taken by Ahmad Raza Kasuri and about the description of his gun-man. Similarly, there could be no other motivation for gathering information about his intention to obtain arms licence...
The conspiracy to murder Ahmad Raza Kasuri is ‘thus proved not only by what transpired at Quetta as well as the incidents at Islamabad and Lahore but also by the subsequent conduct of the principal accused ....”
Now, as I pointed out, it was not Mr. Batalvi’s case that the conspiracy against Mr. Kasuri continued after 11th November, 1974, but he was emphatic that this surveillance on Mr. Kasuri was strong evidence of Mr. Bhutto’s guilt. Therefore, I would repeat that circumstantial evidence can furnish evidence of the guilt of an accused only when it, is not reasonably capable of an innocent construction. And taking first Ashiq Hussain Lodhi’s report about Mr. Kasuri’s gunman, the Judgment itself refers to Saeed Ahmad Khan’s report dated 7th December 1974, Exh. 3/2-M, and further observes that according to this report ;
“Ahmad Raza Kasuri was in a desperate state and had been heard saying that he will take revenge of the murder of his father personally.”
As Mr. Kasuri hard a motive for taking .revenge and was heard hurling threats against Mr. Bhutto, in my humble opinion, the obvious and simple explanation of the enquiry about Mr. Kasuri’s gun-man was the fear of the Police Officers that Mr. Kasuri might implement his threats of taking revenge against Mr. Bhutto through his gun-man, therefore, I cannot agree with the sinister implication placed on this report by the learned Judges. In any event, even if I am wrong, as it is clear that the surveillance maintained rid round the clock on Mr. Kassuri was capable of an innocent interpretation, it cannot according to the settled law, furnish any corroboration of the approver’s evidence, nor can it be construed against Mr. Bhutto as evidence of his guilt.
I now turn to the intelligence reports of Welch about Mr. Kasuri’s visit to Quetta between the 13th and the 16th of September 1974 and the ensuing correspondence. Learned counsel placed great stress on this evidence and the High Court was also of the view that this evidence corroborated Masood Mahmood’s evidence by showing that Mr. Bhutto was keeping a round the clock watch on Mr. Kasuri in order to have him murdered. Welch’s first intelligence report, Exh. P.W. 2/l, was written the day after Mr. Kasuri arrival in Quetta. It states that Mr. Kasuri had come with Air Marshal Asghar Khan and other members of the Tehrik-i-Istaqlal and that they all stayed at Imdad Hotel, but that Mr. Kasuri did not reside “in the reserved room”. The report then states that Mr. Kasuri and his party had met their local followers and that they had also addressed a public meeting largely attended by students. The report then goes on to state that Mr. Kasuri had made a highly inflammatory speech and attacked Mr. i Bhutto in very harsh terms. But what is relevant is that this report was sent to Masood Mahmood and there is nothing in it to show that, it was even placed before Mr. Bhutto. The next report, Exh. P. W. 4/1, was written on 18th September 1974 and is again addressed only to Masood Mahmood. It informs Masood Mahmood how Mr. Kasuri had suddenly left for Quetta and gives the details of the manner in which Mr. Kasuri and his party had been watched wherever- they went in the Province. It is to be noted that this report also is only addressed to Masood Mahmood and there is no evidence whatever to show that it was ever placed before Mr. Bhutto.
Next, as to the correspondence which followed, Mian Abbas by his letter dated 25th September 1974, Exh. P.W. 2/2, enquired from Welch where Mr. Kasuri had stayed if he “did not stay at the Imdad Hotel (in the room) which was reserved for him”. Welch replied to this letter after a delay of nearly six weeks (vide Exh. P.W. 2/3) and informed Mian Abbas that Mr. Kasuri had “occupied sore other room reserved for members of the party in the hotel”.
Although neither the intelligence report nor the ensuing correspondence contained any indication to show that the surveillance on Mr. Kasuri in Quetta had been ordered by Mr. Bhutto, learned counsel invited us to hold that Mr. Bhutto was behind all this surveillance, because otherwise Masood Mahmood had no motive to harass Mr. Kasuri. But as the question is of the surveillance maintained by Welch, it was for Welch to explain why he kept such a close watch on Mr. Kasuri and he said in his examination-in-chief;
“I was responsible for maintaining the forces under my command and I was also responsible for keeping an eye on the political leaders and their activities and also anti-Government elements. I also used to submit intelligence reports on the activities of the aforementioned persons.”
Although Mr. Yahya Bakhtiar’s arguments extended into months, he did not attempt to refer us to any law under which the Police was entitled to harass members of the Opposition in this manner by keeping a round the clock watch on their activities. This means that whilst the surveillance kept on Mr. Kasuri was absolutely illegal. It was part of the surveillance against the party of Air Marshal Asghar Khan. And, as I pointed out earlier, one of the reports submitted by Abdul Hamid Bajwa, Exh. P.W. 3/2-Q, contained information not only about Mr. Kasuri, but about other persons, including some unknown persons, who had attended a cocktail party given by a minor official of a foreign embassy. Therefore, surveillance against all and sundry was the order of the day and whilst this may mean, as was said on a historic occasion sixty-five years ago, that lights were going out, i does not mean that a surveillance had been kept on Mr. Kasuri for the purpose of murdering him.
Additionally, there is another difficulty in the way of accepting learned counsels submission which escaped the attention of the High Court. I pointed out that the intelligence reports of Welch had been sent to Masood Mahmood and there was no indication whatever to show that they had been placed before Mr. Bhutto. Similarly, there is no indication whatever to show that the exchange of correspondence between Mian Abbas and Welch had been seen by Mr. Bhutto. And, further, even Masood Mahmood, who had scant regard for truth, did not say that he had called for intelligence reports about Mr. Kasuri’s visit to Quetta on Mr. Bhutto’s orders. On the other hand, the prosecution produced a score of intelligence reports which contained Mr. Bhutto’s initials and endorsements but as Welch’s intelligence reports do not contain any such endorsements, it is clear that they had not been seen by Mr. Bhutto. Learned counsel of course wanted us to hold that Mr. Bhutto’s hand was behind every thing done by Masood Mahmood, but as this is precisely the point which the prosecution has to prove, it cannot be proved by Masood Mahmood’s own evidence.
The only other circumstance which can lend support to the prosecution case under section 8 of the Evidence Act is the allegation that Mr. Bhutto was responsible for preventing the publication of the report o Mr. Justice Shafi-ur-Rchman. And if this allegation be true, it would certainly be a piece of evidence against Mr. Bhutto under section 8 of the Evidence Act. Now, it is true that Mr. Justice Shafi-ur-Rehman’s report was not published, but there is no evidence to show that reports by tribunals were being published by Mr. Bhutto’s regime or by the governments which preceded him, and unfortunately if we could take jildicial notice of such matters, there is evidence to the contrary. In order t ‘‘ overcome this lacuna in the evidence produced by the prosecution, Mr. Batalvi’s submission was that the Chief Minister of the Punjab (Mr. Ramay) had sought Mr. Bhutto’s advice on the question of the publication of Mr. Justice Shafi-ur-Rehman’s report, but as the report was never published, this was sufficient to prove that the publication of the report had been prohibited by Mr. Bhutto. The first limb of the submission is correct. By his letter dated 7th March, 1975, Exh. P.W. 35/3, tho then Chief Minister of the Punjab asked Mr. Bhutto for his advice on the question whether Mr. Justice Shafi-ur-Rahman’s report “should be published”. This is strange because the report related to the maintenance of law and order in the province which was a provincial subject. Be this as it may, as the prosecution had to prove that Mr. Bhutto had prevented Mr. Ramay from publishing this report, it had mentioned Mr. Ramay ink its calendar of witnesses, but it did not examine him on the ground that he had turned hostile. This allegation was denied by Mr. Yahya Bakhtiar. His submission is supported by the fact that Mr. Ramay had been convicted under the Defence of Pakistan Rules during Mr. Bhutto’s regime but his conviction was set aside as illegal by the Lahore High Court in Begum Shaheen Ramay v. The State (P L D 1977 Lah. 1414). Therefore, if the question whether a witness has turned hostile or not is to be decided by the ipse dixit of counsel, I would have had no hesitation in preferring Mr.. Yahya Bakhtiar’s ipse dixit. But the question cannot be decided by the ipse dixit of counsel, the more so, as Mr. Batalvi could not deny the statement that Mr. Ramay had formed a political party of his own and had left Mr. Bhutto’s party long ago. And this means that the prosecution has failed to give any explanation for its failure to examine Mr. Ramay. No doubt the prosecution was not required to examine him but without examining him, it could not prove its plea that Mr. Bhutto had prohibited the publication of Mr. Justice Shafi-ur-Rehman’s report. Therefore, this plea fails and there is no other circumstance pertaining to Mr. Bhutto’s conduct which can be of any help to the prosecution case.
I now turn to the Islamabad incident as according to Mr. Batalvi it furnished strong corroboration of the prosecution case of a conspiracy and this was also the view of the High Court which observed;
“The incident at Islamabad also lends full support to the evidence of conspiracy. This incident was in aid of the execution of the unlawful act for which the conspiracy was hatched.”
With due respect to the learned Judges, even on the assumption that the prosecution has proved the Islamabad incident, it would only mean that the attempt on Mr. Kasuri’s life was a step taken “in aid of the execution of the unlawful act”. But the fact that an attempt was made on Mr. Kasuri’s life cannot by itself throw any light on the question whether this crime was committed, because Masood Mahmood was carrying out Mr. Bhutto’s orders or whether it was committed because he had voluntarily entered into an agreement with Mr. Bhutto to murder Mr. Kasuri. Secondly, it is the prosecution case that the attempt on Mr. Kasuri’s life had been made in the presence of at least two other persons, yet the prosecution examined only Ghualm Hussain in order to prove this occurrence. But Ghulam Hussain was an approver, and even a cursory perusal of Munir’s Law of Evidence should have warned the investigation agency that an approver cannot corroborate himself. I cannot, therefore, understand the conduct of the prosecution in not examining the two other witnesses, who are alleged to have been present at the occurrence. Mr. Batalvi however, relied on the finding of the-High Court that the evidence of the approver Ghulam .Hussain “has been corroborated by Fazal Ali, P.W. 24, who supplied the weapons used in this incident...”.
I will presently explain why, in my humble opinion, Fazal Ali’s evidence does not inspire confidence, but it is clear from the passage relied upon by learned counsel and from the observations in paragraph 384 of the Judgment that the High Court was of the view that Ghulam Hussain was a very reliable witness. No doubt if his evidence is reliable, then it would prove the occurrence provided it is corroborated by independent evidence. And here, unlike the other approver, Masood Mahmbod, Ghulam Hussain was not in detention facing other unknown charges when he became an approver, therefore, at first sight, his evidence would appear to stand on a higher footing than that of Masood Mahmood. But, I observed earlier that in my opinion, Ghulam Hussain’s evidence is unfit to be relied upon, therefore, as I am unable to agree with the High Court’s appreciation of evidence, it would be necessary to examine Ghulam Hussain’s evidence in some detail.
I discussed earlier Ghulam Hussain’s evidence in so far as it was discrepant with that of Ashiq Hussain Lodhi and the confession of Mian Abbas, and I reached the conclusion that Ghulam Hussain had deliberately and falsely stated that he did not know Masood Mahmood, and this means that his evidence too, like Masood Mahmood’s, began in falsehood. But I would proceed to examine directly his description of his attempt try kill Mr. Kasuri in Islamabad on 24th August, 1974. The witness stated that he had collected arms and ammunition from Fazal Ali, who was incharge of the Armoury of the FSF, for carrying out the nefarious mission which he had undertaken. Next, according to the witness, he telephoned Mr. Kasuri and made an appointment “to meet him at ore O’clock at the gate of the M14A Hostel, in Islamabad. He said to me that he would be at the gate -----” So the witness said that;----
“I left Rawalpindi for Islamabad at 12-30 p.m. in my Jeep. H.C. Allah Bakhsh and Foot Constable Molazim Hussain accompanied me. Driver Mian Khan was at the wheel.”
The witness had a pistol with him whilst Molazim Hussain had a loaded sten-gun. When they reached the hostel, the witness saw Mr. Kasuri’s car parked between the MNA Hostel and the National Assembly building, and Mr. Kasuri was sitting in his car with other persons who were standing outside and talking to him. The witness went on to say
“I proceeded towards the Assembly Building after instructing my companions not to open fire on the car of Ahmad Raza Kasuri as a stranger was standing near him. I also told them that I would do the needful myself after having crossed the car.”
The witness further said that he went and parked his jeep near the Assembly Building and kept his vigil on Mr. Kasuri, and during this period of waiting, he began to have qualms of conscience. He then said;
“I remained in these thoughts and meanwhile it was already 3-00 p.m----I took a decision on the spot not to murder Mr. Ahmad Raza Kasuri. At that time, I saw his car emerge from the MNA Hostel. I decided not to murder him but to save my life also. The Head Constable had gone to have tea, I directed the driver to proceed and to drive the jeep in front of Ahmad Raza Kasuri’s car. I ordered Molazim Hussain to fire in the air as and when I ordered him. The car at that time was proceeding towards the residence of Ahmad Raza Kasuri.”
Next, according to the witness, as there, was a lonely intersection within less than a mile from the Assembly Building, he decided to stage the incident at this lonely intersection. He parked his jeep had the blind of the rear window of the jeep rolled up, acd as Mr. Kasuri’s car came within firing range, he ordered Molazim Hussain to open fire --
“the moment the car reached the intersection; Molazim Hussain complied with the orders and when he fired the first burst, Mr. Ahmad Raza Kasuri glanced towards the left and sped on.”
So everything ended happily and as Mr. Kasuri escaped unscathed, the witness’s claim that he had ordered Molazim Hussain to fire in the air also lent a touch of melodrama to his evidence.
As Mr. Yahya Bakhtiar invited us to reject as false the approver’s claim that he had suddenly developed qualms of conscience about carrying out an assassination carefully planned by him, it is relevant to observe that the witness had said both in his confession and in his statement as an approver, that in the Lahore incident too he had directed Arshad Iqbal and Rana Iftikhar to fire in the air as Mr. Kasuri’s car went past-the roundabout, because he had developed similar qualms of conscience, therefore, to say the least, the story of the approver is somewhat implausible. But as implausible things do happen, I will assume that the approver had developed qualms of conscience about executing a murder planned by him. However, even on the footing that he had suddenly suffered from qualms of conscience, he could have fired the sten-gun in the air himself and by telling Molazim Hussain to do what he could have done himself; he merely created evidence against himself. This is difficult to believe, because the witness also said that he knew he was being watched by another party, and that is also the prosecution case. Again, as it is the prosecution case that another party was following the approver in order to see that he carried out his assignment, it is a bit odd that4he Police were allowed to recover the empties of the bullets which Molazim Hussain is supposed to have fired. As the empties were of 7.62 mm. calibre, it is obvious that they would have implicated the FSF, so it is very strange that the FSF party, which was following the approver, did not remove the empties and left them for the regular Police to come and collect them. As the circumstantial evidence also thus casts doubt on the approver’s evidence, Mr. Batalvi was asked why the prosecution did not examine Molazim Hussain or Mian Khan, the -driver of the jeep, in order to corroborate the approver’s evidence. Learned counsel’s rely was astonishing. He said that it would have been an exercise in utility to examine these two witnesses, because they were accomplices, and the evidence of an accomplice could not be corroborated by the evidence of an accomplice.
The submission is entirely fallacious. In the first place, as an approver’s evidence cannot be accepted without corroboration, the question w4ether Molazim Hussain and Mian Khan were accomplices cannot be decided by the approver’s apse dixit, and, on this short ground, learned counsel’s submission fails. It is true that Molazim Hussain had carried out the approver’s order to fire in the air, but that would not make him an accomplice in an attempted murder, and the offence committed by Molazim Hussain in firing at a passing car in order to scare the occupant of that car would be a petty offence. But, as I explained, the infirmity in the evidence of accomplices depends upon the offence in which they have participated and the degree of their complicity in it, therefore, there was absolutely no comparison between the taint in the evidence of Ghulam Hussain, who was an approver in a murder case, and the infirmity in Molazim Hussain’s evidence. The infirmity in the latter’s evidence was so alight that his evidence would have furnished corroboration of Ghulam Hussain’s evidence. In any event, the driver of the car had nothing whatever to do even with the order to fire in the air as Mr. Kasuri’s car went past. It is true that he did not make a protest to Ghulam Hussain about the order to fire in the air, but, as I explained, an involuntary spectator, who watches a crime, does not become an accomplice merely because he does not object to the commission of the crime. Therefore, Mian Khan’s evidence would have been free from all taint whatever. Yet as the prosecution did not examine him, speaking for myself, I am not able to believe the approver’s evidence.
It is true that someone had fired at Mr. Kasuri but this does not help the case of the prosecution because Mr. Kasuri had other enemies like Chaudhry Yaqub Maan, and in this background of intense local hatred against Mr. Kasuri, the fact that the prosecution has proved the occurrence at Islamabad does not by itself furnish any corroboration of Ghulam Hussain’s evidence. However, according to learned counsel, the approver’s evidence was corroborated by that of Fazal Ali, and as that was also the view of the High Court, I may explain here that Fazal Ali gave evidence that he had supplied pistols and a sten-gun with ammunition to the approver shortly before the occurrence: I will presently examine Fazal Ali’s evidence, but at this stage, I will assume that his evidence was true. This would only mean that he had supplied arms to Ghulam Hussain which could have been used in the occurrence, because the arms and ammunition supplied were of a prohibited bore,’ namely, 7.62 mm. calibre. But, unfortunately for the prosecution, it is, clear from the documentary evidence that weapons of this calibre wer ‘e available in Bara and had been supplied by the CAD, Havelian to then Frontier Corps, and to Army units also. Accordingly, even if we accept Fazal Ali’s evidence, it only means that Ghulam Hussain could have) been the assailant who had fired at Mr. Kasuri. But, it is not enough for the prosecution to prove that there was a possibility that Ghulam Hussain had made this attempt on Mr. Kasuri’s life. The prosecution had to prove beyond reasonable doubt that Ghulam Hussain was the assailant, and this could only have been proved by evidence to establish that the arms and ammunition used in the occurrence could only have come from the FSF. Now, the weapons used in the occurrence were not recovered, but as the empties were, the prosecution should have led evidence to prove that the empties were of bullets which belonged to the FSF and were not available with anybody else in the country. In order to prove this, the Public Prosecutor had filed an application to examine Col. Wazir Ahmad Khan of the CAD, Havelian, but as the High Court dismissed that application, the prosecution has failed to prove that the ammunition used in the occurrence belonged exclusively to the FSF. Therefore, even if Fazal Ali’s evidence is accept-) ed, it only proves that Ohulam Hussain might have been responsible for the incident of 24th August, 1974, but as the possibility that the assailant could have obtained the ammunition from sources other than the FSF cannot be ruled out, it follows that Fazal Ali’s evidence is not sufficient to corroborate the approver’s evidence of his role in the alleged incident.
Further according to the approver, he made his next and last attempt on Mr. Kasuri’s life on the night of 10th November 1974. This was nearly three months after the Islamabad incident, and it is obvious that if Mr: Bhutto had really been pressing and goading Masood Mahmood to carry out his orders, Ghulam Hussain would not have remained inactive for such a long period, so I would now examine how he attempted to overcome this obvious lacuna in the prosecution case.
Ghulam Hussain said that he tried to keep a surveillance on Mr. Kasuri for two or three days after the- Islamabad incident also, but as he learnt that Mr. Kasuri had left Islamabad, he informed Mian Abbas, and on Mian Abbas” orders, he returned to Fazal Ali the arms and ammunition which had been borrowed from him by substituting “live cartridges for the bullets used in the occurrence.” Then according to the witness :-
“Mian Abbas ordered me to depute Head Constable, Zaheer and Liaqat, from the Commando Camp, to go to Lahore and search for Mr. Ahmad Raza Kasuri. I complied with the orders. I rejoined my work in the Commando Camp.
Mian Mohammad Abbas sent for me a day before Eid in October, 1974. He said to me that my men who had been sent to Lahore were enjoying holidays and had done nothing.”
The witness said that he offered to go to Lfihore after the Eid, but on Mian Abbas’s orders he left for Lahore on the 16th October, 1974 and returned ten days later having successfully located Mr. Kasuri’s residence in Lahore.
Zaheer and Liaqat had been sent to Lahore without any arms or ammunition and the only task entrusted to them was to trace Mr. Kasuri’s address in Lahore. Now, Ghulam Hussain claims to have met Mian Abbas three or four days after the Islamabad incident, and Zaheer and Liaqat had immediately thereafter left for Lahore to trace out Mr. Kasuri’s address. This means that they left for Lahore in the first few days of September, 1974, but they had not been able to trace Mr. Kasuri’s address when Mian Abbas reached Lahore on the 16th of October, 1974. As Mr. Kasuri’s address could have been ascertained from a telephone directory, the idea that two constables were sent to Lahore to find out Mr. Kasuri’s address is absurd, and the idea that these two constables were not able to trace Mr. Kasuri’s address for six weeks, is, in my humble opinion, absolutely absurd. I also find it impossible to believe that it would have taken Glrulam Hussain ten days to discover Mr. Kasuri’s address in Lahore. And, on the other hand, if all that Mian Abbas wanted to ascertain was Mr. Kasuri’s Lahore address, as claimed by Ghulam Husskin, Mian Abbas could have obtained this address from the Lahore Director of the FSF by an enquiry on the telephone. In these circumstances, Mr. Yahya Bakhtiar invited us to reject this part of the witness’s evidence as absolutely false, and he submitted that it had escaped the attention of the High Court that the witness’s evidence was inconsistent with his own earlier statements. We have examined the witness’s confession and his statement under section 337 of the Criminal Procedure Code and as submitted by Mr. Yahya Bakhtiar, they do not contain a word about the mission entrusted to Liaqat and Zaheer nor about the witness’s alleged trip to Lahore in October for the purpose of tracing Mr. Kasuri’s Lahore address. Therefore, I am satisfied that this part of the witness’s evidence was false, and, at first sight, this false evidence would seem to have been introduced by the witness in order to lend a touch of melodrama to his evidence. But having thought over the matter, I am satisfied that the witness deliberately gave false evidence in order to corroborate the false claim of Masood Mahmood that Mr. Bhutto had been goading him (Masood Mahmood) to expedite Mr. Kasuri’s murder.
I would now turn to the witness’s alleged visit to Lahore in November, 1194, when he claims to have carried out the mission entrusted to him by killing Mr. Kasuri’s father instead of Mr. Kasuri. The first difficulty in the way of accepting this evidence is that according to the T.A. and D.A. Bills produced by the prosecution, the witness was in Karachi at the relevant time, therefore, Mr. Batalvi invited us to hold that these T.A. and D.A. Bills had been fabricated at the instance of. Mian Abbas lit order to give a cover to Ghulam Hussain for his nefarious mission to Lahore. At the risk of being tedious, I would repeat that when the prosecution invites the Court to reject its own documentary evidence as false, the burden of proving this plea is very heavily on the prosecution. And as the plea is that Ghulam Hussain had not visited Karachi, I would have thought the best evidence in support of this plea would have been the evidence of the Director of the FSF in Karachi that Ghulam Hussain had not been in Karachi at all in the month of November, 1974. Mr. Batalvi could not explain why such evidence was not produced. And, on the other hand, as rightly submitted by Mr. Yahya Bakhtiar, the story that Ghulam Hussain was officially supposed to be in Karachi, whilst he was planning the murder in Lahore, is not to be found in the earlier statements of the witness and this makes it even more difficult to believe the approver’s plea. Learned counsel also drew our attention to an admission made by the approver very reluctantly in his cross-examination. The approver was cross-examined about the place of his residence in Lahore in November, 1974 and he said---
“I stayed throughout this period at Shah Jamal though on paper I was supposed to be putting up in a hotel.”
If the witness was supposed to be staying in a hotel, the prosecution would have had no difficulty in producing; documentary evidence .in support of the approver’s claim, the moreso, as a hotel keeper would have no difficulty in producing his bills, but he would not generally be in a position to identify his customer by sight after the lapse of three years. Once again, Mr. Batalvi did not explain why this evidence was not produced, but he appeared to rely on the fact that the three accused, who had pleaded guilty, had supported the approver’s evidence in their confessions. I am not impressed by the evidence of these accused for more reasons than one. In the first place, as I will presently show, their description of the murder in their confessions is totally discrepant with the approver’s description of the occurrence, but in order to support tile prosecution case, they, repudiated their confessions in their statements under section 342 of the Criminal Procedure Code and stated that everything had happened in the manner described by Ghulam Hussain. Now it would be an under—statement to say that I am not impressed by this desperate attempt of ascendances to corroborate the evidence of an approver. It is true that it is not the case of a solitary accomplice and I am aware of the second part of Illustration B to section 114(e) of the Evidence Act, but this is one of those eases in which zero multiplied by zero would remain zero.
Learned counsel then stated that Ghulam Hussain’s claim to be in Lahore was proved by an encounter between Ghulam Hussain and Abdul Wakil Khan in Lahore in November, 19’74. Ghulam Hussain said that he was giving in one of the jeeps of FSF a couple of nights before the murder, when they were stopped on Canal Road by Abdul Wakil Khan, because their jeep had no number plate. Abdul Wakil Khan demanded their explanation for driving about without a number plate. Ghulam Hussain said that he gave his identity to Abdul Wakil Khan, who verified the position by talking on the wireless in his vehicle to Mr. Malhi, the local Director of the FSF, Lahore, and the approver further stated that Abdul Wakil Khan treated the chapter as closed with a warning to the witness, because Mr. Malhi had assured Abdul Wakil Khan that the person in the jeep, namely, Ghulam Hussain, was an official of the FSF:
The question is whether this evidence is fit to be believed. So T would first examine what Abdul Wakil Khan said. He said;
‘During my posting as D.I -G., Lahore I used to patrol the area extensively during night. I remember that a few days before this occurrence when I was on patrol duty during night I came across a jeep without number plate going ahead of me on the Canal Road. I chased, overtook that jeep and stopped it. One person came out of the jeep and saluted me. I questioned about his identity. He told me that he was an Inspector in the F.S.F. and told me that he was going to the Headquarters in Shah Jamal. I asked him as to why he was driving the jeep without a number plate. He could not give me any satisfactory answer. I then contacted Mr. Malhi, who was then Director, FSF at Lahore through wireless control car through the Control and enquired if the Inspector belonged to the FSF. He confirmed that he and the jeep did belong to the FSF.”
As Abdul Wakil Khan could not remember the name of the Inspector to whom he had spoken, a learned Judge asked the witness whether the name of the Inspector was Ghulam Hussain. This was very unfortunate, as the witness was being examined-in-chief. Be this as it may, despite the fact that the name of Ghulam Hussain was mentioned by the Court, Abdul Wakil Khan replied;
“The Inspector at that time had given his name, which I don’t remember now and that name had been conveyed to Mr. Malhi...”
As this attempt to corroborate Ghulam Hussain’s evidence failed,’ when Mr. Irshad Qureshi cross-examined Abdul Wakil Khan or behalf of-the accused, who had pleaded guilty, he put a leading question, as he was entitled to do, to the witness as to whether the name of the Inspector whom the witness had met on that night was Ghulam Hussain. Once again Abdul Wakil Khan’s reply was ----
“I cannot recollect the name of the Inspector even though it has now been suggested to me as Ghulam Hussain.”
In view of the very clear evidence, 7 am astonished that we were invited to accept Ghulam Hussain’s evidence as true. As despite repeated suggestions, Abdul Wakil Khan could not recall that the name of the Inspector he had met on that night was Ghulam Hussain, I can only take this to mean that the Inspector whom Abdul Wakil Khan met was not Ghulam Hussain. In any case, as Abdul Wakil Khan had immediately contacted Mr. Malhi and corresponded with him about the incident, the prosecution could have examined Mr. Malhi or at least produced Abdul Wakil Khan’s correspondence with Mr. Malhi to prove that this chance encounter was between Abdul Wakil Khan and Ghulam Hussain, the approver, but it did not. Secondly, the driver of Ghulam Hussain’s jeep, Ashraf, could have been examined, the more so, as it is not the prosecution case that he had any role whatever in the conspiracy to murder Mr. Kasuri or even that he knew anything about it. But once again Mr. Batalvi could not explain why the prosecution did not examine this driver, Ashraf and he wanted us to accept an approver’s ipse dixit. In the circumstances, have no doubt that Ghulam Hussain deliberately gave false evidence when lie claimed to be the person who had had this chance encounter with Abdul Wakil Khan on Canal Road, Lahore.
Mr. Yahya Bakatiar referred us to other discrepancies in the evidence of Ghulam Hussain in support of his submission that Ghulam hussain was never in Lahore in November 1974,and I am satisfied beyond doubt that he was in Lahore on the night or this alleged encounter with Abdul Waki! Khan. But, Manzoor Hussain, the driver of Masood Masood, clairs to have driven Ghulam Hussain from Lahore to Rawalpindi on the 12th of November 1974. As this evidence raises the possibility that Ghulam Hussain could have been in Lahore a day or two earlier, Mr. Yahya Bakatiar invited us to reject this witness’s evidence on the ground that he was a chance witness. This criticism has reference to an admission by Manzoor Hussain that he had gone to the headquarters of the FSF in Shah Jamal Colony, Lahore in order to get petrol for his car and I agree with learned counsel that the story of getting petrol was false. But does this mean that the witness did not go to the FSF headquarters, or, does it mean that he had invented a pretext for visiting the local headquarters of the force to which he be longed After all, a sensational murder had taken place and there would be nothing unnatural in the witness’s inventing a pretext in order to visit his local headquarters and find out the latest gossip about the murder.
Mr. Yahya Bakhtiar then pointed out that this witness had been dismissed by Masood Mahmood and had filed an appeal against his dismissal which was allowed shortly before the witness gave evidence. According to Mr. Batalvi, the fact that this appeal was allowed was not material because it was only a coincidence. It is possible that it was a coincidence, and as Manzoor Hussain had found employment after his service in the FSF had been suspended, I do not see what advantages. he would have gained by the fact that his appeal was allowed. In these circumstances, I do not think we would be justified in interfering with the finding of the trial Court on a pure question of fact. But this only means that Ghulam Hussain was in Lahore on the 12th of November, 1974, whilst, the prosecution has to prove that he was in Lahore on the 10th November, 1974.
However, Mohammad Amir, who was working as a chauffeur in the FSF at the relevant time has said that be had driven the jeep on the day of the occurrence and that Ghulam Hussain and the accused who have pleaded guilty were in The jeep. The High court has believes this evidence and though a “well have been taken, I do not think we would be justified in interfering with the finding of the trial Court which had the advantage of watching the demeanour of the witness. Therefore, I would hold that the prosecution has proved Ghulam Hussain’s presence in Lahore on the 10th of the November 1974 But, this does not mean that he was in Lahore therefore the 10th of November, 1974, nor does this mean that the T.A. and D.A. Bills of the witness were false or forged as submitted by Mr. Batalvi. And, for reasons which I. will presently give, I am satisfied that Ghulam Hussain was in direct touch with Masood Mahmood, therefore, what may have happened was that after completing his work in Karachi, he Lew to Lahore or a couple of days surreptitiously, knowing that ro action ivoulu be taken against him because of his protector, Masood Mahmood, Ghulam Hussain has described in his evidence how he with the other accused spent the day trying to trace Mr. Kasuri, and Mr. Yahya Bakhtiar pointed out that these details were not contained in the earlier statements of this approver. That is true, but, as submitted by Mr. Batalvi, it was not necessary to record every detail in those earlier statements, therefore, nothing, turns on this criticism, and I would begin my examination of this approver’s evidence with his statement that he had traced the house of Mr. Bashir Ahmad where Mr. Kasuri was attending a wedding party, and that thereafter he had, if I may be permitted to say so, held a meeting at the Ichhra Police Station of “the Gang of Four”, consisting of himself and the three accused who bad pleaded guilty.
It was at this meeting that the approver finalised the-details .of the plot to assassinate Mr. Kasuri. There was a road leading from Mr. Bashir Ahmad’s house to the Shadman Roundabout and Mr. Kasuri’s car was parked on this road. I will refer to the side of the roundabout which faced this road, as the front side of the roundabout, and the opposite side of the roundabout as the opposite side of the roundabout. The distance from the front side of the roundabout to Mr. Basbir Ahmad’s house was about 50/60 yards, and the plan of assassination was that Arshad Iqbal and Rana Iftikhar would fire at Mr. Kasuri as he drove past the roundabout.
After finalising this plan, the approver Ghulam Hussain claims to have returned to the roundabout with Arshad Iqbal and Rana Iftikhar. He then said :-
“After making sure that the car of Ahmad Raza Kasuri was there and so was Mr. Ahmad Raza Kasuri, Sufi Ghulam Mustafa went to his Shah Jamal office. I posted Rana Iftikhar at the intersection facing the road which branched towards the left as coming from the house where the wedding was taking place. There was hedge around the round about at that intersection, which was about shoulder-high. The distance between Rana Iftikhar and Arshad Iqbal was about nine or ten steps. I posted these two persons in the area around which there was a hedge so that they could be hidden from the lights of the oncoming cars. I directed Arshad Iqbal to open fire in the air the moment Ahmad Raza Kasuri’s car was about to pass by him. Iftikhar was given the orders to open fire at the first car which came before him after Arshad Iqbal fires in the air. I had directed Arshad. Iqbal to fire in the air for more than one reasons. He was facing the Shamianas and if he had fired at the car people in the Shamiana might be hit. Secondly, there was a danger of people sitting in the cars or those walking on the roads being injured... There was a road which branched of from the road in front of Iftikhar, It was not lit and I started pacing. I came to the intersection a number of times to keep ‘Arshad Iqbal and Iftikhar on guard and also to find out whether the people had started leaving the place where wedding was taking place. At about mid-night I heard the sound of firing. The second and third burst followed after very short intervals. I hurriedly reached the intersection from the branch road which I was pacing. I was pacing the road which branches of towards the right from the road in front of Rana Iftikhar at the time when the ‘bursts were heard...”
It is clear from the approver’s evidence about the occurrence that he had played no part whatsoever in it. No doubt this was because in his own words, he had “started pacing” on an unlit road from which it was not possible for him to see the roundabout, therefore, his description of the occurrence is hearsay, and I am not able to understand how Mr. Batalvi expected us to rely on it. Further, unfortunately for the prosecution, Mr. Kasuri has also not been able to give a clear idea of the manner in which the firing had taken place. But, Mr. Yahya Bakhtiar referred us to Abdul Hamid Bajwa’s report dated 28th November 1974, Exh. P, W. 3/2-K, which reads;
“Raza claims that four persons had been deputed to kill him, who fired from automatic weapons, which they did, while hiding near the Shadman Roundabout. They were not in any vehicle.”
Although this report would suggest that Mr. Kasuri could have given a better description of the firing than he did, Mr. Yahya Bakhtiar cannot be permitted to rely upon this report, because it was not put in cross-examination to Mr. Kasuri. Besides, it is possible that Mr. Kasuri was not able to see clearly what was happening, because he had to concentrate on driving away as fast as possible, and this could not have been easy, as the lights of his car had gone off. But, his mother and his aunt would have been in a better position to describe how the firing had taken place, yet the prosecution did not examine these two ladies, nor has it explained why it did not examine them. The result o is that the only eye-witness account of the occurrence is contained in the confessions of Arshad Iqbal and Rana Iftikhar. Both these accused have supported Ghulam Hussain’s evidence about the directions given by Ghulam Hussain to them about how they were to fire at Mr. Kasuri’s car as it went past the roundabout. Rana Iftikhar then said in his confession, Exh. P. W. 10/2:
“at about 1 O’clock Ahmad Raza Kasuri’s car came there whereupon Inspector Ghulam Hussain fired with his pistol and we fired with sten-guns and the car went away...”.
Arshad Iqbal said in his confession, Exh. P. W. 1013;
“I and Rana Iftikhar...were sitting in the Shah Jamal Roundabout, Inspector Ghulam Hussain fired at the car of Ahmad Raza Kasuri with his pistol and we according to the programme opened incriminate firing but the car went away safe and sound...”
As both the accused categorically stated that Ghulam Hussain was the first to fire, their evidence cannot be reconciled with Ghulam Hussain’s claim that he had taken no part whatever in the occurrence, because he had “started pacing” in an unlit road from where the firing was not even visible. In view of this glaring contradiction between the confessions and the evidence of the approver Ghulam Hussain, the contention advanced in the trial Court was that Ghulam Hussain’s evidence should be rejected on this ground. But in repelling this objection, the High Court observed :-
“The argument clearly ignores the statement of Ghulam. Hussain in cross-examination that he did not remember whether he fired the pistol. This statement does not exclude the possibility of his having fired it.”
As Mr. Yahya Bakhtiar stated that these observations were based on a misreading of the approver’s evidence, it is necessary to examine what the approver said in his cross-examination on the question whether he had participated in the occurrence by firing a pistol. But,- I would first observe that it was nut Ghulam Hussain’s case that he was a professional assassin, so I find it difficult to believe that he could not remember whether he had participated in the only murder carried out by him in his life. Be this as it may, he did say first in answer to the questions put in cross-examination “I do not remember if I fired the pistol”. After saying this, he immediately stated that he was “at a distance of 30 yards from the intersection where the firing took place”. Then he said “1 think I had no hand-grenade at the time of occurrence. I did not fire on the car when it past on the road in front of me. I did not fire my pistol when I was pacing the street”. In order to clarify what the witness meant, he was put the further question which I would quote here “Did you fire your pistol before you heard the bursts of the ten-guns and while you were pacing the street”‘? As the witness answered “No”, with due respect to the learned Judges, I am compelled to observe that Mr. Yahya Bakhtiar’s submission is correct, and the opinion of the trial Court is based on the misreading of evidence.
Mr. Yahya Bakhtiar then referred us to the glaring contradictions between Ghulam Hussain’s evidence and his confession, Exh. P. W. 10/11-1, dated 11th August 1977 and his statement as an approver dated 21st August 1977, Exh. P. W. 10/11. I will presently examine these statements in greater detail, but here I would only observe that in both the statements, he said that he had posted Arshad Iqbal and Rana ftikhar inside the roundabout and “told them that on recognising the car, Arshad Iqbal will fire in the air and from the other side Rana Iftikhar will fire so that commotion is created and our honour is also saved”. Of course this version of the occurrence is not fit to be believed, the moreso, as the witness was emphatic in his evidence in the High Court-that a party of the FSF had been detailed to assassinate him if he failed to assassinate Mr. Kasuri. But, Mr. Yahya Bakhtiar was right when he said that the approver’s version of the directions given by him to Arshad Iqbal and Rana Iftikhar in these two statements cannot be reconciled with the approver’s claim in his evidence that he had directed these two accused to shoot at the car to kill. It was unfortunate that the learned Public Prosecutor did not draw the High Court’s attention to the position taken by the approver in his earlier statements. But the approver was cross-examined on this aspect- of the case, and I find it somewhat difficult to understand the evasive answers given by him in his cross-examination. He, however, threw the blame on Mian Abbas and said;
“Between the 18th and 19th of August, 1977, when I had already applied for being made an approver on the 13th, when Mian Mohammad Abbas came to know about it he sent me a message through a convict. He said that if my application was accepted and I was made an approver; I should adopt a method by which I could get pardon and also at the same time try to save him also.. Since he had begged of me, I made my statement in a way that be should not be implicated to a very large extent.”
Then, in answer to the next question by learned counsel for the accused, the approver said that he “had not made a full statement before the Magistrate and that I would like to make a full and correct statement before this Court. It is not correct that I have made an incorrect statement before the Magistrate to save Mian Mohammad Abbas”. As the witness has given two completely contradictory answers, we can only speculate on the reasons which led him to give false evidence. Mr. Batalvi, therefore, drew our attention to the fact that the witness had filed an application in Court that he would make a full disclosure in Court, meaning thereby that he had not made a full disclosure even in his statement as an approver. As the witness admitted that he had not made a full disclosure even in his statement as an approver, I can only observe that he was very lucky that the pardon granted to him was not cancelled. Be this as it may, an approver is presumed to be dishonest, and if an approver admits that he, has not made a full disclosure of the facts in his statement under section 337 of the Criminal Procedure Code, how can any reliance be placed on his evidence ?
However, as the approver had first said that he had not made a full disclosure in his statement as an approver, because of approaches made by Mian Abbas, I have examined his confession and his statement as an approver in order to find out whether the explanation thus given by the approver was true or false. And I have to observe that not only was the approver’s explanation false, but the discrepancy between the two statements casts doubt on the entire investigation of the case. Omitting the minor discrepancies between the two statements, Ghulam Hussain has said in both his earlier statements that Mian Abbas had ordered him to assassinate Mr. Kasuri and that despite his protests, he was compelled to carry out Mian Abbas’s orders because of the fear that his life would not be safe otherwise. Again in both his statements, the approver said that Mian Abbas had procured for him the arms and ammunition used in the Islamabad incident and similarly that in November 1974, Mian Abbas had ordered him to take 500 rounds of ammunition from the Commando Camp, for the purpose of assassinating Mr. Kasuri in Lahore. As both. these statements implicate Mian Abbas to the hilt, it is clear that the witness had deliberately given false evidence when he said that he had not spoken the whole truth in his earlier statements because he had been approached by Mian Abbas. Further, not only was this explanation absolutely false, but the real explanation reacts even more against the veracity of the witness. I say this because in his confession, what he said about his meeting with Mian Abbas in which Mian Abbas had ordered him to kill Mr. Kasuri was as follows;---
“After about three days whilst Mian Abbas was in his office, he called me again and ordered me that under the orders of D. G. Masood Mahmood, Ahmad Raza Kasuri is to be finished as he is personal enemy of Prime Minister Zulfikar Ali Bhutto.”
But about the same meeting, he merely said in his statement as an approver that Mian Abbas had ordered him to take two sten-guns and 400 rounds from Fazal Ali because “Ahmad Raza Kasuri is to be finished”. So the person whom Ghulam Hussain wanted to favour was not Mian Abbas, but the other approver, Masood Mahmood.
The other explanation given by the approver, Ghulam Hussain, for suppressing the truth in his earlier statements was that these were not full statements. This explanation is absolutely false, because the question was not whether the earlier statements were short or long. The question was why the approver had said in his earlier statements that he had directed the two accomplices to fire in the air, whilst he sail in his evidence that he had directed them to fire at the car of Mr. Kasuri. And as the witness was unable to explain this patent contradiction between his earlier statements and his evidence in Court, he resorted to false and dishonest explanations. But the matter does not end here, because as I lave shown, the approver deliberately tried in his statement, as an approver, to reduce the complicity of the other approver, Masood Mahmood, in the murder. And, as he said that he had been approached by Mian Abbas, whilst he was in custody, it is obvious that he had made a false allegation against Mian Abbas, in order to cover the fact that Masood Mahmood had made an approach to him. Therefore, the only inference which I can draw from Ghulam Hussain’s evidence is that he and Masood Mahmood were in league.
I now turn to Mr. Yahya Dakhtiar’s submission that the High Court had ignored the discrepancies between Ghulam Hussain’s evidence about the occurrence and the circumstantial evidence. And as learned counsel wanted to rely on the site plan prepared by Inam Ali Shah, Exh. P. W. 34/5-D, I have to explain first that whilst this site plan was according to scale and was produced by Niazi, Niazi said that it was not correct. But as I have shown, Niazi was not an honest witness, and the Court had no means of knowing whether Niazi’s’ opinion about Inam Ali Shah’s site plan was true or false as the prosecution did not examine Inam Ali Shah. In these circumstances, the proper course would have been to examine Inam Ali Shah as a Court-witness. But as this was not done, we have to go by Niazi’s evidence, unsatisfactory though it be, and as there is 7o controversy about the photographs of Mr. Kasuri’s car, Exh. P. W. 36/1-4, I would first examine Mr. Yahya Bakhtiar’s submission that the bullet marks on the car were inconsistent with Ghulam Hussain’s claim that Rana Ifikhar had fired at the car from behind the hedge of the roundabout as it drove past him.
There are two bullet marks on the mudguard of the car, but it is not possible from the photographs to say whether this was the rear mudguard or the front mudguard. What is, however, very clear, is that the assailant had fired with his gun pointing towards the tyres of the car and the shots missed the tyres by a few inches only. Whilst, this was excellent marksmanship, the point raised by Mr. Yahya Bakhtiar was that these shots could only have been fired by an assailant, who was lying on the ground. In order to explain the submission, I would recall here that Rana Iftikhar had, according to Ghulam Hussain’s evidence, fired from behind the shoulder-high hedge of the roundabout. But, as the hedge was shoulder-high, it would have been very difficult for Rana Iftikhar to hold his gun in such a manner that it was aimed almost towards the road. Therefore, this suggests, I deliberately use the word suggests, that there was a third assailant who was lying down on the road outside the roundabout, so as not to be seen, and had fired from that lying down position. And, here, Niazi’s site plan, unreliable though it be, becomes relevant. According to this site plan, there were empties at four points, marked A, B, C and D. The points A and D were outside the hedge and point A was on the front side of the roundabout on the intersection of the roundabout and the road leading to Mr. Bashir Ahmad’s house, whilst point D was on the back side of the roundabout. But, it is not possible to say from the site plan how far these heaps of empties were from the hedge of the roundabout. There were also empties at two points within the roundabout which have been marked as B and C by Niazi in his site plan. Next, according to Niazi, the distance between points B and C “was about ten steps”, but the distance between points A and E and points A and C was at least three or four times the distance between the points B and C. Similarly, the distance between the points A and D appears to be about five times the distance between the points B and C. And this means that. the distance between the points A and D would be about fifty steps. Now, according to Inam Ali Shah’s site plan, the diameter of the roundabout was about 190 feet, therefore, this would suggest that Inam Ali Shah had drawn his site plan correctly. Be this as it may, I would only go by Niazi’s site plan, but the prosecution cannot be heard to say that the distance even in Niazi’s site plan are not correct.
Mr. Yahya Bakhtiar’s submission was that the empties at points A and D were the empties of bullets fired by persons who were outside the hedge of the roundabout, but as Arshad Iqbal and Rana Iftikhar were supposed to have stood behind the hedge and fired, this proved firstly that there were four assailants, who had fired at Mr. Kasuri’s car, and secondly, that the assailants, who were outside the hedge bad fired from a lying down position. The submission assumes that when empties are ejected from a sten-gun, they are always thrown backwards by the recoil effect in the absence of some mechanism to control the ejection of the empties. Now as it is nobody’s case that the sten-guns used in the occurrence bad any mechanism for controlling the ejection of the empties, it would follow that they were thrown backwards by the recoil effect, but slightly towards the right. This, however does not mean that the empties could not be thrown in front of the marksman, because if the marksman fires high in the air, the empties would be thrown by the recoil effect in front of him, not behind him. And, as Arshad Iqbal was supposed to have fired high in the air, it is likely that the empties at point A were the empties of the burst fired by him, even though he was himself standing behind the hedge when he fired. This hypothesis, however, according to Mr. Yahya Bakhtiar, left one problem unsolved. This was the question of the bullet which hit the bonnet of the car. According to learned counsel, as Arshad Iqbal had fired high in the air, the bullets fired by him could not possibly have hit the bonnet of the car, therefore, there was another assailant near him who was outside the hedge. Mr. Batalvi did not attempt to throw any light on this problem, and the difficulty in the way of the prosecution is that it has granted a pardon to an accomplice, who had not seen the occurrence, therefore, the. prosecution is not able to explain the discrepancies between Ghulam Hussain’s evidence and the circumstantial evidence. However, even if for the sake of argument, we give the benefit of doubt to the prosecution and assume that the bullet which hit the bonnet of Mr. Kasuri’s car had been fired by Arshad Iqbal, this still would not explain the empties at point D, nor the bullet marks on the mudguard of Mr. Kasuri’s car.
In order to overcome the difficulty about the empties at point D, Mr. Batalvi advanced an astonishing submission. According to Ir. Batalvi whenever a step-gun was fired, the empties were invariably ejected in front of the marksman and not behind him. As the argument appeared to be somewhat unusual, a demonstration was organized through the courtesy of Brig. Zaidi, Chief Inspector, Inspectorate of Armaments. And after watching this demonstration, I am completely, satisfied that if Rana Iftikhar fired in the manner he is alleged to have fired, the empties of the bullets must have ‘peen ejected behind him, though at an angle. It is of course possible that an odd empty could have been thrown in front of Rana Iftikhar, but this cannot explain a heap of six or seven empties.
I am aware that Ghulam Hussain has given evidence to the contrary which perhaps influenced the High Court. This witness said in his cross-examination to Mr. Irshad Qureshi:--
“an empty is always ejected from a sten-gun in such a way that it is thrown outside towards the right and in front of the muzzle,”
This statement is false and is a piece of deliberate perjury, and it was unfortunate that the High Court did not have an opportunity of watching a demonstration of firing practice as we had.
Mr. Batalvi then attempted to persuade us to believe that the empties at point D had come from shots fired by Arshad Iqbal, and as according to learned counsel, the empties at point A were also from the warning burst fired by Arshad Iqbal, learned counsel’s further submission was that after firing his warning burst, Arshad Iqbal had run across the roundabout and fired again at the car. But no one has said that Arshad Iqbal had run across the roundabout, and fired again at Mr. Kasuri’s car, therefore, as rightly submitted by Mr. Yahya Bakhtiar, the contention of Mr. Batalvi is merely a hypothesis, which is not supported by any evidence. However, even if we assume that Arshad Iqbal, after firing his warning shot, could have run across the roundabout, and fired again at Mr. Kasuri’s car as it drove past, the difficulty in the way of accepting this hypothesis is Niazi’s site plan Even if we assume that Arshad Iqbal had run across the roundabout and fired from behind the shoulder-high hedge, an odd empty could have been thrown outside the hedge, but as according to the site plan, a heap of empties were lying outside the hedge, it is clear that even on the hypothesis propounded by Mr. Batalvi, Arshad Iqbal could have fired for the second time, at Mr. Kasuri’s car only if he had jumped over the shoulder-high hedge and then fired at the car. But it is impossible to believe that Arshad Iqbal could have run across the roundabout, jumped over the hedge, taken his position and fired at Mr. Kasuri’s car before it drove past. Secondly, the question ‘whether he had run across the roundabout and had fired for the second time at Mr. Kasuri’s car are questions of fact and questions of fact have to be proved by evidence. Therefore, as rightly submitted by Mr. Yahya Bakhtiar, Mr. Batalvi’s hypothesis cannot be accepted, because it is based on conjecture and is not supported by evidence. And sere, the learned counsel overlooked Arshad Iqbal’s confession. Brief though it be, this confession is totally inconsistent with Mr. Batalvi’s hypothesis, and I have no doubt that a third assailant had fired from near point D and hit the mudguard of Mr. Kasuri’s car.
Mr. Batalvi then advanced another ingenious argument in order to save the prosecution case. He said that if any person had stood outside the hedge near point D, he would have been within the range of the shots fired by Rana Iftikhar. But, as Rana Iftikhar is supposed to have fired over the shoulder-high hedge, an assailant outside the hedge would be in danger of being hit by Rana Iftikhar’s shots only if he was standing. But, he would be reasonably safe if he was crouching under the shelter of the hedge, therefore, once again Mr. Batalvi’s submission assumes that we should give the benefit of doubt to the prosecution by holding that this third assailant was stupid enough to stand in a position of danger when he could easily have taken shelter under the shoulder-high hedge.
Mr. Yahya Bakhtiar advanced many arguments also to show that the circumstantial evidence completely falsified Ghulam Hussain’s evidence, but it would be sufficient to refer to only one other argument of the learned counsel. This was that the empties at points B and C were empties of shots fired by different persons as according to Niazi, the distance between the two heaps of empties was about ten paces. Mr. Batalvi’s reply to this submission was that Rana Iftikhar could have moved from near point B to near point C as he was firing. The argument sounds plausible, but the difficulty is that there is no evidence to show that Rana Iftikhar had changed his position, whilst he was firing, and this difficulty has arisen because the prosecution granted a pardon to an accomplice, who had not seen the occurrence, therefore, as the benefit of doubt cannot be given to the prosecution, there appears to be force in Mr. Yahya Bakhtiar’s submission that there were not three but four assailants. However, it is quite unnecessary to decide this point because I have no doubt whatever that there were three assailants, and this means that Ghulam Hussain deliberately and fraudulently concealed evidence about the identity of this third assailant. And, further in my opinion, no reliance whatever can be placed on his evidence because he has given false evidence on every material particular.
Mr. Batalvi’s next submission was that Ghulam Hussain’s evidence as well as the prosecution case generally was supported by the evidence of Fazal .Ali and Amir Badshah and by documentary evidence, such as, the road certificate, Exh. P.W. 24/7, the entry in the stock register of the Armoury of the FSF, Exh. P.W. 24/8, and outer evidence, such as, the site plan and the recovery memo. of the empties at Islamabad incident. Now, I find it difficult to .believe that the evidence of a witness so thoroughly dishonest as Ghulam Hussain can be corroborated. But, as the High Court was of the view that this approver’s evidence received very strong corroboration from the evidence of Faial Ali, I will now examine Fazal Ali’s evidence.
Fazal Ali was incharge of the Armoury of the FSF and as Ghulam Hussain was running a Commando Course for the FSF, he used to collect arms and ammunition from Fazal Ali against receipts, and he had collected arms and ammunition fox the Islamabad incident from Fazal Ali in August 1974. Now this was all that he said in his statement as an approver, but as this statement could not possibly furnish any corroboration of Masood Mahmood’s evidence against Mr. Bhutto or Mian Abbas, he said in his evidence in the High Court that the arms and ammunition collected by him for the Islamabad incident had not been collected against the usual receipts and entries in the stock registers on the Armoury. He further said that Fazal Ali had first refused to sup ,ply anything without compliance with the usual formalities, therefore, he had informed Mian Abbas who had called Fazal Ali over and after meeting Mian Abbas, Fazal Ali gave him arms and ammunition without proper receipts or entries in the’ stock registers. As Fazal Ali has corroborated this part of Ghulam Hussain’s evidence, Mr. Batalvi submitted that it furnished very strong corroboration of the approver’s evidence. So I will examine Fazal Ali’s evidence in detail.
Fazal Ali stated that Ghulam Hussain had come to him in August, 1974 with a, chit from Mian Abbas for one step-gun, two magazines, etc., and asked Fazal Ali to supply the same. Now as Ghulam Hussain was running a Commando Camp, the mere fact that Mian Abbas had directed him to collect ammunition from the Armoury of the FSF, would not implicate even Mian Abbas in any crime, whatever, therefore, what Fazal Ali said for the first time in Court was that Ghulam Hussain had asked for the arms and ammunition “on a kmcha receipt” which was to be returned when the arms and ammunition were returned, and that Ghulam Hussain had said that no entries of this issue of arms and ammunition to him were to be made in the stock register on Mian Abbas’s orders. But. Fazal Ali refused to carry out this order, therefore, Ghulam Hussain reported him to Mian Abbas, so according to Fazal Ali, Mian Abbas sent for him. Fazal Ali then said;
“As soon as I entered the Office room of Director Mian Muhammad Abbas, he asked me as to why I had not obeyed his orders. I informed him that since the orders were not according to the standing order, I had not issued the weapons and ammunition. The Director shouted at me saying if I did not want to serve any more and that I would be discharged from service and that I would not reach my home. He again ordered me to issue the weapons and ammunition forthwith otherwise my services would be terminated. I issued the weapons and the ammunition on the receipt given to me by Ghulam Hussain,. I did not make any entry in the register about it and had issued the same only on the receipt. Two days before the end of the same month, Ghulam Hussain, Inspector, returned the entire weapons and ammunition.”
Mr. Batalvi placed very great reliance on this passage in Fazal Ali’s evidence, but he did not seem to realise that the witness has not implicated Mr. Bhutto. Secondly, before I continue with the witness’s evidence, I have to point out that what the witness stated in this passage was not contained in his statement to the Police, although this statement was recorded on 18th September, 1977.
Now this omission in Fazal Ali’s Police statement was so material that it was fatal to his veracity, the moreso, as Ghulam Hussain had also similarly improved upon his statements in the High Court. Therefore, Mr. Batalvi did not attempt to argue that the omission in Fazal Ali’s earlier statements would not be fatal to the witness’s veracity, but he invited us to follow the view taken by the High Court and I will do so. However, in view of Mr. Yahya Batkhtiar’s submissions, it would be convenient first to examine another attempt by Fazal Ali to corroborate Ghulam Hussain’s evidence.
Ghulam Hussain said that ha had to wind up the Commando Camp which h e was running shortly after the murder in Lahore, so he had to return to the Armoury “the remaining ammunition, live as well as spent from the camp” As .to the spent ammunition, he should have had 1500 empties, but he was 51 short, because 7 had been fired at Islamabad, 30 at Lahore and the rest had been lost in training exercises at the Commando Camp. However, although he knew that the empties would not be accepted because they were 51 short, he took them to Fazal Ali., who refused
“to accept the consignment without the 51 spent cases being supplied to him. The shortage was in the step-gun empty cases and I reported the whole matter to Mian Muhammad Abbas. He asked me to report back to him after three or four days during which he would be able to make some arrangements.”
Then according to the witness, when he went back to Mian Abbas after three or four days, Mian Abbas gave him a Khaki envelop---
“which contained 51 empty cases of sten-gun ammunition and I went to Fazal Ali and gave him all the ammunition on the basis of road certificate Exh. P. W. 24/9 which bears my signatures.”
There is not a word about these 51 empties in the earlier statements of the approver, and the reasons for this attempt to improve upon the prosecution case become apparent from perusal of Fazal Ali’s evidence to which I turn.
As Fazal Ali said that Ghulam Hussain had come to him two or three days before the 25th of November, 197.4 to return the ammunition issued to him on 9th May, 1974 as the Commando Camp was being closed. However, according to the witness, as the spent ammunition was short by 51 SMG empties,. he refused to accept the ammunition brought by Ghulam Hussain unless he accounted for the missing empties, and so Ghulam Hussain went away and returned on the 25th of November, 1974. As he had brought the correct number of empties with him, he (Fazal Ali) checked them and accepted them. This evidence is an improvement on the earlier statement of the witness. Next, according to Fazal Ali, eight or ten days before the 25th of November, 1974, he had been summoned by Mian Abbas to his office and told to bring:
“25-30 fired cartridges of SMG, LMG. I returned to the armoury and took 30 empties of SMG, LMG to the Director. The Director ordered me to place those empties on the table as he was busy in his work ...I was summoned again after 2 or 21 hours by the Director Mian Muhammad Abbas and told me to take array the empties. I counted those empties. These were thirty and I deposited them again in the armours.”
As Fazal Ali had refused to receive the empties from Ghulam Hussain 8 or 10 days before the 25th November, this statement, if true, would furnish strong corroboration of the prosecution case at least against Mian Abbas, so Mr. Yahya lk:khtiar submitted that this part of the evidence of the witness was also false and that it was a case of preconcerted perjury between Ghulam Hussain and -Fazal Ali which cast doubt on the entire case.
I would, however, first examine tile, view of High Court ` which reads
“It is true that the statement made in Court regarding the directionstions of Mian Mohammad Abbas to give the required weapons to Ghulam Hussain P.W. 31 on a chit without recording the, same in his register and the threats given by him in this connection do not find any mention in the statement under section 161, Cr. P.C., Exh. P.W. 39/9-D ;but P.W. 24 positively stated that he had given all the details of facts to the Investigating Officer though he had not read his statement nor had he signed it. In answer to a question that he had made improvement upon his statement under section 161, Cr. P.C. to bring the present statement in line with the prosecution version and that he had done this dishonestly, he stated that he had already taken an oath before he started making a statement and had stated what had really happened. The statement of Mohammad Boota P.W. 39 is clearly explanatory of the omissions in Exh. P.W. 39/9-D which were put to P.W. 24. While proving the statement Exh. P.W. 39/9-D he stated that “so far as Fazal Ali’s stand is concerned, I would like to point out that his statement was also recorded in a case under section 307, P.P.C. which was being investigated contemporaneously with the present case and a few things deposed by him which are incorporated in his statement in the other case were not reduced to writing in the present case------- “307, P.P.C. case related to the attack on Ahmad Raza Kasuri at Islamabad.”
This statement explains the above mission.”
I take these observations to mean that the learned Judges were of the view that there were no material omissions in the earlier statements of Fazal Ali, because what had been omitted in his earlier statement in the murder case had been referred in his earlier statement for the Islamabad case. But as I showed, the material omissions also related to the question of the 51 empties which Ghulam Hussain said he was not able to count for. Therefore, if I may say so, a cloak and dagger story was put up by Fazal Ali in his evidence both in order to inculpate Mian Abbas and in order to support the theory of the substitution of empties which Niazi had propounded for the first time in his evidence in Court. Now although this cloak and dagger story was not irrelevant to the Islamabad case, it was more relevant to the murder case, and as there is not a word about it in Fazal Ali’s earlier statement in the murder case, I am unable to believe that he could have referred to this cloak and dagger story in his earlier statement in the Islamabad case. Therefore, I am satisfied that the witness made this improvement in his evidence in order to bolster up the prosecution case against Mian Abbas and also in order to lend a semblance of truth to Niazi’s evidence.
I now turn to the improvements made by Fazal Ali in his evidence about the role played by Mian Abbas in the issue of arms and ammunition to Ghulam Hussain in August, 1974. The learned Judges were of the view that the material particulars of this incident would be contained in Fazal Ali’s earlier statement in the Islamabad case. I agree with the view, but it was the prosecution which placed such great stress on the Islamabad incident in the murder cage; the accused were entitled to assume that Fazal Ali’s statement in the murder case would contain the material particulars about all the matters about which he had been summoned to give evidence in the murder case. Further, although the learned counsel for the accused went on cross-examining Fazal Ali about the material omissions in his earlier statement in the murder case, the learned Public Prosecutor did not inform the Court that the witness’s Police statement for the Islamabad incident had been recorded separately. In these circumstances, with all respect to the learned Judges, .I do not see how the learned counsel for the accused could possibly have thought that the witness’s statement to the Police had been recorded twice in two separate cases. And, on the other hand, if Fazal Ali had, in his earlier statement in the Islamabad case, referred to the illegal orders given to him by Mian Abbas in August, 1974 for supplying arms and ammunition to Ghulam Hussain, I have no doubt that the Public Prosecutor would have drawn the Court’s attention to this statement. Any other view would mean that he was grossly negligent in the conduct of the prosecution, but any such assumption would be most unjustified as the learned Public Prosecutor has been very zealous in the conduct of his case. Thirdly, and this is most important, with due respect to the learned Judges, they had no means of knowing what Fazal Ali had said in his earlier statement in the Islamabad case, because that statement was not produced before them, therefore, they erred in holding that there were no material omissions in the witness’s statement. But it is the improvements thus made by the witness in his evidence which implicate Mian Abbas and corroborate Ghulam Hussain’s evidence against Mian Abbas. Therefore, on the dictum laid down by Munir, the prosecution cannot rely on these improvements for the purpose of corroborating an approver’s evidence.
I have also to observe here that I am disturbed by the manner in which this witness made improvements in his evidence which were parallel to the improvements made by Ghulam Hussain in his evidence. How could two witnesses, who were both Police Officers, make parallel improvements in their evidence ? I am disturbed by this coincidence, and it lends some support to Mr. Yahya Bakhtiar’s submission that it is a ease of pre-concerted perjury between the two witnesses.
Mr. Batalvi then drew our attention to the documentary evidence produced by the witness and he submitted that this evidence furnished strong corroboration of the prosecution case. The argument has reference to the evidence about the manner in which the FSF used to receive ammunition from the CAD, Havelian, and as Fazal Ali was incharge of the Armoury, he produced the stock registers of the Armoury and other documents such as road certificates, which, prima facie, proved the contention of the prosecution that the FSF Armoury had received bullets bearing lot number 661/71 from the CAD Havelian, and that bullets with this lot number had been issued to Ghulam Hussain. I would, however, point out here that Mr. Yahya Bakhtiar criticised the entries in the stock registers, and I would have examined his submission if the question had been of the corroboration of a witness on the ground that he was an interested witness. But the question here is of the corroboration of the evidence of an approver, and as I explained the evidence of an approver cannot be accepted, unless it is corroborated in material particulars against the accused. But even on the assumption that the stock registers and the documentary evidence produced by Fazal Ali are beyond challenge, this would only corroborate Ghulam Hussain’s evidence about the manner in which he had obtained ammunition from the FSF Armoury. Now as I have no doubt that he was responsible for the murder, how does this further the prosecution case either against Mr. Bhutto or against Mian Abbas ? Additionally, Ghulam Hussain used to draw the ammunition from the FSF Armoury because he was running a Commando Camp, therefore on this ground also I am not impressed at all by the documentary evidence produced by Fazal Ali.
Mr. Batalvi then submitted that Ghulam Hussain’s evidence was corroborated by that of Amir Badshah, who was incharge of the third battalion of the FSF in Lahore, and of Mohammad Amir. But neither of these witnesses implicate Mr. Bhutto in any way, because “they do not claim to have met him or seen him or carried out any order on his behalf. Similarly, Mohammad Amir’s evidence does not implicate Mian Abbas in any way. But Amir Badshah said in his evidence that he had supplied sten-guns, pistols and cartridges in September, 1974 to Sufi Ghulam Mustfa, one of the appellants before us, on the orders of Mian Abbas without making any entry in the stock registers maintained by him, because that was the order of Mian Abbas. The witness also said that the arms and. ammunition supplied by him had been returned to him a few days after the murder of Mr. Kasuri’s father. This evidence, if true, would have furnished corroboration of Ghulam Hussain’s evidence against Mian Abbas, but the question is whether it is true, and here the ballistic expert’s report, which was withheld by the prosecution, is fatal to its case. As the report was negative, it means that Ghulam Hussain’s evidence about the manner in which he had collected sten-guns and/or the manner in which he had collected ammunition for the murder is false. Therefore, on this short ground, no reliance can be placed on Amir Badshah’s evidence.
The evidence thus produced by the prosecution appears impressive because of the number of witnesses examined and the documents produced, but the question is whether it is sufficient to prove the guilt of h the two appellants who had challenged their convictions in appeals in 94 this Court, and I would first briefly recapitulate the evidence against Mr. Bhutto.
The prosecution case against him rests on the evidence of Masood Mahmood, and for the many reasons which I have given, the evidence of this witness cannot be accepted without strong corroboration, therefore, the prosecution relies on three important witnesses, Welch, Saeed Ahmad Khan and Mr. Kasuri. But Welch has only said that Masood Mahmood had told him to assassinate Mr. Kasuri. This statement cannot be stretched to mean that Masood Mahmood had told Welch to assassinate Mr. Kasuri on Mr. Bhutto’s orders. As Mr. Batalvi was conscious of this difficulty, he submitted that Masood Mahmood had no motive to implicate Mr. Bhutto falsely, therefore, the order given by him to Welch to kill Mr. Kasuri must have been given on Mr. Bhutto’s orders. In the first place, if we were to accept this argument, we would be substituting evidence by conjecture. Secondly, Masood Mahmood was not only an approver, but he was an approver under a very strong temptation to please the investigation agency by giving false evidence. And for generations, the law has been that an approver is the type of a man, who will in the words of Munir ------
“be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner.”
This Court’s judgment in Abdul Qadir’s case is one of the many authorities in which this dictum has been followed. In this background evidence of motive would not be sufficient to corroborate the approver’s evidence. In any case, Mr. Kasuri had, in the words of Mr. Batalvi, a love-hate relationship with Mr. Bhutto, and the element of bias in the witness’s evidence is apparent from a perusal of his cross-examination. In any event, the local enmities and hatreds against this witness were so intense that, in my humble opinion, his evidence cannot furnish any corroboration of an approver’s evidence. But as Saeed Ahmad Khan too was an accomplice, putting the prosecution case, at its highest, his evidence can only be a link in a chain of corroboratory evidence, and I have rejected as false his claim that Mr. Bhutto had told him to see that no investigations were made into the activities of the FSF. Therefore, the only part of this witness’s evidence which is relevant is his statement that Mr. Bhutto had told him to give a reminder to Masood Mahmood to carry out the task entrusted to him in connection with Mr. Kasuri. In the circumstances, this too is a very weak piece of corroboratory evidence, therefore, Mr. Batalvi naturally relied on the evidence of the other Police Officers that they had been prevented on account of fear of Mr. Bhutto from investigating the murder properly.
I have shown how Mohammad Asghar stated again and again that pressure was brought to bear upon him, but persistent cross-examination proved that the only pressure on him was his own reluctance to record Mr. Bhutto’s statement under section 161 of the Criminal Procedure Code. I also regret to say that I am not impressed by the evidence of this witness, which began with a bang and ended with a whimper. However, Mohammad Wars admitted that he did not investigate the case properly, and he explained that he had failed to examine the role of the FSF in the murder, because of the pressure brought to bear upon him by Saeed Ahmad Khan, therefore, the prosecution had to prove that Saeed Ahmad Khan had brought this pressure on Mohammad Waris on account of Mr., Bhutto and notion account of the head of the FSF (namely the approver) who would have been affected by these investigations. But there is no such evidence, and this apart from the fact that Saeed Ahmad Khan was both an accomplice and unreliable witness.
I am aware that reports on the progress of the investigations in the murder case were regularly put up to Mr. Bhutto, but any one implicated in a murder case would follow the progress of the case with the at-most interest and obtain information about it if he was in a position to do so, therefore, Mr. Bhutto’s conduct in taking interest in the case is as consistent with his guilt as with his innocence. As I explained, the h conduct of an accused cannot furnish any corroboration of the prosecution case unless it is reasonably inconsistent with any interpretation other than the guilt of the accused and by this test all the other submissions of Mr. Batalvi about Mr. Bhutto’s conduct failed except for one observation which I would make. As Mr. Bhutto was following the progress of the case, he must have known that no attempt was being made to make an enquiry into the affairs of the FSF, although the recovery of the empties indicated that such an enquiry was necessary. Would this failure to give directions for a proper enquiry furnish corroboration of the prosecution case 7 Whilst the question thus raised had disturbed me, the short answer is that it is a question of fact and we do not know what Mr. Bhutto did, because no question was put to him in this behalf in his examination by the Court, therefore, this plea also fails.
I am aware that Mr. Batalvi had also placed great stress on the documentary evidence, but even if this -is accepted, it would furnish corroboration only of Ghulam Hussain’s evidence about how he planned and carried out the murder. But as an accomplice is always in a position to give a convincing account of the crime in which he has participated, Abinger, C.B., observed more than a hundred and fifty years ago -----
“that corroboration, ought to consist in some circumstance that affects the identity of the party accused.”
And this dictum has been followed without exception by all the High Courts of the sub-continent and as far as I know by all the superior Courts of the common law countries. Therefore, I am astonished at the arguments advanced by Mr. Batalvi on this aspect of the case. No doubt they might have been relevant if Masood Mahmood and Ghulam Hussain had merely been hostile witnesses, but as they are approvers, their evidence cannot be accepted unless it is corroborated in material particulars against the accused, who have denied their guilt, therefore, learned counsel’s reliance on the documentary evidence was totally misconceived. And as I have referred here to Ghulam Hlissain, I might observe that this witness implicated Mr. Bhutto only by double hearsay, if I may say so, and further he was a thoroughly dishonest witness, therefore, it would be a waste of time to refer to his evidence here. But this is all the evidence against Mr. Bhutto. Accordingly, in the circumstances discussed, I am satisfied that the prosecution has failed to prove his guilt and I would allow it.
Mr. Yahya Bakhtiar also submitted that the trial had been vitiated by grave procedural irregularities and by bias, but it will be convenient to examine first the question whether Mian Abbas’s conviction can be supported by the evidence against him. But as I pointed out, this appellant had changed the position taken by him after we had admitted his appeal. Long after arguments had commenced in the appeals, his learned counsel informed us that he (Mian Abbas) had changed his mind and pleaded guilty to the charges against him. Therefore, he withdrew from the appeal with our permission and as Mr. Batalvi’s submission was that Mian Abbas’s appeal should be dismissed as withdrawn, I will first examine this submission.
Mr. Batalvi was not able to refer us to any provision under the Criminal Procedure Code under which an appeal could be withdrawn after it had been admitted to regular hearing. And further although the Code contains provisions for withdrawing other types of criminal proceedings, section 423 reads;
“423. Powers of Appellate Court in disposing of appeal.-(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if he appears, Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may ---------
(a)---------
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 136, subsection (1) not so as to enhance the same;
(c) ------------------
(d) -----------------
(2) -----------------
The section prescribes that an appeal which has been admitted can be dismissed only after perusing the record of the case, and that, in my opinion, imposes an obligation on the Court not to dismiss an appeal h unless the Court is satisfied from the perusal of the record that the conviction of the appellant was according to law. This was also the view of the Judicial Committee in King-Emperor v. Dahu Raut (AIR 1935 P C 89). And as this judgment was followed by a Full Bench of the Lahore High Court in Ishar Das v. Nur Din (A I R 1942 Lab. 298), I am surprised at Mr. Batalvi’s submission.
I would, therefore, turn to the case against Mian Abbas. As I indicated earlier, this appellant had first recorded his judicial confession, but this was hardly inculpatory. In any event, little turns on this confession because it was retracted, and, so the prosecution had„to prove its case against this appellant.
Mr. Batalvi, therefore, relied on the evidence of Masood Mahmood and Ghulam Hussain and submitted that the evidence of these approvers was amply corroborated by other evidence. But I showed earlier how these two approvers falsely claimed that they did not know each other. Further Ghulam Hussain had altered his statement as an approver in order to exculpate Masood Mahmood whilst he was in custody. That an accused should alter his evidence whilst in custody in order to oblige another accused who was in custody, is to say the least, a startling fact which does not improve the case of the prosecution. Therefore, once again, the evidence of these approvers cannot be accepted without very strong corroboration. And as Mr. Batalvi placed great stress on the documentary evidence produced by Fazal Ali and on other documentary evidence such as the site plan, recovery memo, etc., I would repeat that this evidence only corroborates the approver’s description of how he carried out the murder. It does not furnish any corroboration of his evidence against the accused. It is true that at first sight the evidence of Fazal Ali; Amir Badsha`s and Muhammad Amin appeared to furnish strong corroboration of Ghulam Hussain’s evidence against Mian Abbas. But for the reasons which I have given earlier, Fazal Ali’s evidence does not inspire confidence. Similarly, although Amir Badshah’s. evidence would appear at first sight to furnish strong corroboration of Ghulam Hussain’s evidence against Mian Abbas, it is inconsistent with the ballistic expert’s report because that report was negative. No doubt the documentary evidence relied upon by Mr. Batalvi is sufficient to prove that the bullets used in the occurrence had the lot number 661/71 and as I explained this means that Ghulam Hussain probably used ammunition belonging to the FSF. But as the ballistic expert’s report was negative, this necessarily means that the sten-guns used in the occurrence were not the sten-guns of the third battalion, therefore, the evidence of Amir Badshah and Muhammad Amir is false and once again it seems to be a case of pre-concerted perjury.
Mr. Batalvi then pointed out that Ghulam Hussain’s T.A. and D.A. Bills for the month of November, 1974 had been paid immediately, and, according to learned counsel, this could only have been on account of Mian Abbas’s orders and so the prompt payment of these bills corroborated Ghulam Hussain’s claim that he carried out the murder at Mian Abbas’s orders. But as the prosecution can rely on the conduct of an accused only if it is incompatible with his innocence, the argument of learned counsel assumes that a prompt payment of a man’s dues is only capable of a sinister interpretation. I cannot agree with this assumption, but even if we give the benefit of doubt to the prosecution and assume that there was a sinister significance in the prompt payment of Ghulam Hussain’s bills, this only means that he had a protector in the FSF whose goodwill enabled him to recover his dues immediately, and, so the question is whether this protector was Mian Abbas or Masood Mahmood. Now it was for the prosecution to prove that this protector was not Mian Abbak the moreso, as Mian Abbas had to obey Masood Mahmood’s orders and Mr. Batalvi was not able to refer us to any evidence in support of his submission except Ghulam Hussain’s evidence which cannot be accepted without corroboration. On the other hand, I showed earlier that when the approvers were in custody, the approver, Ghulam Hussain, had helped Masood Mahmood by trying to exculpate Masood Mahmood in his statement as an approver. In these circumstances, the only inference I can draw from the evidence is that it was Masood Mahmood’s patronage which ensured the immediate payment of Ghulam Hussain’s bills.
Mr. Batalvi also relied on Mian Abbass’s letters to Welch about Mr. Kasuri’s visit to Quetta in September, 1974. So, I would recall here that Air Marshal Asghar Khan’s party had booked accommodation at the Imdad Hotel, Quetta and they had all stayed there. But, Welch had further stated in his report that Mr. Kasuri had not spent the night in the room which had been booked for him in the Imdad Hotel. As the report did not state where•Mr. Kasuri had spent night, Mian Abbas asked Welch by his letter dated 25th September 1974, to clarify the position and Welch replied six weeks later by his letter dated 7th November 1974 that Mr. Kasuri had spent the night in “some other room reserved for members of the party in the hotel”. Mian Abbas’s explanation of this correspondence was that it was a routine enquiry on Masood Mahmood’s orders and as the intelligence reports had been sent only to Masood Mahmood, it seems to me obvious that the enquiries were made by Mian Abbas on Masood Mahmood’s orders. Additionally, Masood Mahmood did not even claim that he had taken Mian Abbas into confidence about his plans to assassinate Mr. Kasuri in Quetta, therefore, I see nothing sinister in the enquiry made by Mian Abbas, and the very fact, that Welch replied to Mian Abbas after a delay of nearly six weeks, corroborates Mian Abbas’s claim that the enquiry was a routine enquiry. Therefore, nothing turns on this exchange of correspondence and I am not impressed by this submission of Mr. Batalvi, either.
In the circumstances discussed, it is clear that the evidence of the approvers against Mian Abbas is not corroborated by any independent evidence which could implicate Mian Abbas, therefore, I would set aside his conviction and allow his appeal.
I now turn to the appeals of the three accused, who had pleaded guilty. They never retracted their confessions and they stood by them; even when they appeared before us. Additionally, these confessions are corroborated by the evidence of Mohammad Amir, but it is not”‘ necessary to discuss this corroboratory evidence because a conviction can be based on a judicial confession if the Court is satisfied that it was genuine and voluntary and I am satisfied that the confessions of the three appellants in the instant case were genuine and voluntary. The appeals of these appellants against their convictions must therefore be dismissed and the only question is whether they are entitled to the benefit of the lesser penalty under section 301 read with section 302 of the Penal Code.
Taking first the case of Arshad Iqbal and Rana Iftikhar, not only had they fired at Mr. Kasuri in order to kill him, but it is clear from the circumstantial evidence that they had fired in a reckless manner, and indeed Arshad Iqbal has admitted in his confession that they had fired indiscriminately at Mr. Kasuri’s car. It is true that they took a somewhat different position in the High Court and said in their statements under section 342 of the Criminal Procedure Code that everything had taken place in the manner described by Ghulam Hussain in his evidence. But as I explained, the glaring discrepancy between Ghulam Hussain’s evidence and the confessions of these two appellants was that, according to the appellants, Ghulam Hussain too had fired a pistol., whilst Ghulam Hussain denied having fired a pistol, because he was at some distance from the place of occurrence. The appellants have not explained why they abandoned their own version of Ghulam Hussain’s role in the occurrence, but it is obvious that they were trying to help the prosecution case. As this cannot possibly be treated as a mitigating circumstance, no grounds have been made out for interfering with the sentence passed against these two appellants. It is true that Sufi Ghulam Mustafa, the other appellant, had not taken any part in the actual murder, but as he and Ghulam Hussain had planned the strategy of the murder, if I may say so, the sentence of death passed against this appellant is legal sentence and I see no grounds whatever for interfering with it.
I now turn to Mr. Yahya Bakhtiar’s submission that Mr. Bhutto’s trial was vitiated by bias, and because it was vitiated by bias, we should, in accordance with the law declared by this Court in Muhammad Ismail Chowdhury v. Abdul Khaleque Sowdagar and another (PLD1960SC301) set aside Mr. Bhutto’s conviction and remand the case for a fresh trial. As I am in respectful agreement with this Court’s view is Muhammad Ismail Chowdhury’s case I would only observe that the question of remanding the case would have required examination if I had rejected learned counsel’s submission that the prosecution had failed to prove Mr. Bhutto’s guilt. But as I am of the view that the prosecution has failed to prove Mr. Bhutto’s guilt beyond reasonable doubt, the question of remanding the case for a fresh trial does not arise, and I am relieved of the painful necessity of examining learned counsel’s submissions on the question of bias, except for one argument, because the contention was that the High Court had declared bad law.
This argument has reference to an application filed by Mr. Bhutto under section 561-A of the Criminal Procedure Code for the transfer of his case for trial “by another Bench, or Judge preferably the Sessions Judge, Lahore”. This application was dismissed by the learned Judges on 9th January, 1978 and in dismissing it, the learned Judges observed in paragraph 1.3 of their order :-
“It is a rare phenomenon for a counsel or a party to apply for transfer but Judges do not mind if facts are brought to their notice in respectful language to enable them to consider the advisability of hearing a matter. It is to such information that reference has been made in the judgment of his Lordship the Chief Justice in M. H. Khondkar v. State P L D 1966 S C 140 ; and the judgment in Yusaf Ali Khan v. The State P L D 1977 S C 482.
It was, however, clarified in Khondkar’s case that the plea must be “wholly justified on factual grounds” and that “mere apprehension in the mind of a litigant that he may not get justice, such as is based on inferences drawn from circumstantial indications, will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follows necessarily therefrom.”
No exception can be taken to the statement of the law in this passage. However, in order to understand Mr. Yahya Bakhtiar’s submission, I may explain here that in Khondkar’s case, the question was whether a person could file an application in a High Court for the transfer of his case on the ground ;.hat the Judges who were hearing the case were biased against him. Largely on the basis of the view taken by the Lahore High Court, S. A. Rehman, J., and Kaikaus, J., were of the view that an allegation of bias or partiality could not be made against a Judge of a superior Court, and, therefore, the application of the petitioner for the transfer of his case was not competent. Cornelius, C. J., did not agree with this proposition and observed :-----
“It is open to a litigant to raise in the face of a Court an allegation of bias in that Court, and this is true whether it may be by a superior or a subordinate Court.”
As Hamoodur Rehman and Fazle Akbar, J., agreed with the view o the Cornelius, C. J., it is clear that according. to the law declared by this Court a litigant can file a transfer application on the ground of bias provided he does not scandalize the Court or malign it unnecessarily or falsely, and this view was unanimously followed in Yusa Alt Khan’s case. However, in paragraph 301 of the judgment under appeal, the learned Judges observed :----
“Now no Court much less a superior Court can allow litigant to challenge before it its fairness, integrity and impartiality, or to scandalise it, and to go on repeating with impunity, scandalous and libellous attacks on Judges which are calculated to lower the authority of the Judges and to malign them...”
Although Mr. Yahya Bakhtiar only criticised the first part of this passage ending with the words “fairness, integrity and impartiality”, I would clarify here that I agree with the view of the High Court that a litigant cannot be permitted to scandalize Judges and Courts. But there is a difference between filing a transfer application which scandalizes Judges and a transfer application which is filed in the manner prescribed in Khondkar’s case and in Yusaf Ali Khan’s case. Therefore, I agree with Mr. Yahya Bakhtiar that the observations criticised by him are not good law. J am also surprised at these observations, because they are inconsistent with the observations of the learned Judges in their order of 9th January, 1978.
I now turn to Mr. Yahya Bakhtiar’s submission that the trial was vitiated by procedure irregularities and illegalities which had prevented Mr. Bhutto from conducting his defence properly. As these irregularities have been listed in the judgment of my Lord the Chief Justice, it is not necessary for me to refer to them, and so I would only observe that a conviction can be quashed on the ground of irregularities in the trial if the irregularities have “occasioned a failure of justice”. But as I am of the view that Mr. Bhutto’s conviction is illegal, it follows that these irregularities or the alleged irregularities have not led to a miscarriage of justice, therefore, it is not necessary to examine Mr. Yahya Bakhtiar’s submissions.
However, one of Mr. Yahya Bakhtiar’s submissions was that the trial of Mr. Bhutto had proceeded in his absence in breach of the provisions of section 540-A of the Criminal Procedure Code, and as this section has seldom come up for construction before the superior Courts, I would make a few observations on it. In my humble opinion, one of the fundamental principles of the Criminal Procedure Code is that a criminal trial should always be held in the presence of the accused. But this principle was a principle evolved by the common law Courts for the proper administration of justice, and a rule evolved by Judges should not be permitted to lead to injustice. And the principle that a criminal trial cannot proceed in the absence of the accused can lead to injustice. Thus, for example, in petty cases it is the accused who seek to be relieved of the obligation to be present at their trial. Or an accused may deliberately resort to delaying tactics, therefore, the rigid and inflexible application of this principle caused injustice and the Legislature stepped in to rectify the position. Section 540-A in so far as it is relevant prescribes :----
“At any stage of an inquiry or trial...where two or more accused are before the Court, if the Judge is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may, if, such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.”
The power thus conferred on the Court is a wide power, but like all powers conferred on the Courts, it must be exercised judicially. With this observation, I would turn to Mr. Batalvi’s submissions. Mr. Bhutto, had fallen ill during the course of the trial and I have no doubt that his illness was genuine. Further, as submitted by Mr. Batalvi, the Court had granted a couple of adjournments, but as Mr. Bhutto’s illness continued, the Court decided without any written order to proceed with the case in Mr. Bhutto’s absence as he was represented by his Advocate. Mr. Yahya Bakhtiar submitted that the Court had acted illegally in proceeding under this section without passing an order. Secondly, he submitted that the Court had erred in assuming that Mr. Bhutto was “Incapable of remaining” before it on account of his illness. Now, I do not agree with the submission of Mr. Yahya Bakhtiar that the incapacity envisaged by the section would not include the incapacity caused by illness. However, illness is a calamity beyond the control of the accused, and because it may render an accused “Incapable of remaining” in Court, this does not mean that the Court should exercise its discretion against him and proceed with the trial in his absence. As the discretion conferred by the section is a judicial discretion, it must be exercised judicially. And in exercising it, the Court must take into account the right of the accused to be present at his trial, the rights of the other accused who may object to delays in the trial, and also the right of the public in the speedy administration of justice..
Now, as I indicated, according to Mr. Yahya Bakhtiar, the High Court had erred in proceeding with Mr. Bhutto’s trial in his absence because he was too sick to give instructions and because his illness was a calamity beyond his control which entitled him to an adjournment. This submission would have required examination if I had been of the view that Mr. Bhutto’s defence had suffered on account of his absence from the trial, but as in my opinion, the prosecution has failed to prove his guilt, it follows that no prejudice was caused to Mr. Bhutto by the fact that the Court decided to proceed with the case in his absence. In these circumstances, it is not necessary to examine Mr. Yahya Bakhtiar’s Submission, but I would clarify that I am not examining his submission only because I am of the view that Mr. Bhutto’s defence was not prejudiced because of his absence during a part of his trial.
Mr. Yahya Bakhtiar also criticised the construction placed by the High Court upon sections 164, 337 and 342 of the Criminal Procedure Code. But I am not impressed by his submissions on this aspect of the’ case and I agree with the observations in the judgment of my Lord the Chief Justice on the proper construction of these sections.
Mr. Yahya Bakhtiar had also filed an application for examining witnesses, but I would dismiss this application on the short ground that the prosecution has failed to prove Mr. Bhutto’s guilt.
Finally, Mr. Yahya Bakhtiar criticised the personal observations made against Mr. Bhutto in paragraphs 610 to 616 of the High Court’s judgment and submitted that they should be expunged. I have read these observations. They are not supported by any evidence and I have to state with very great regret that they are totally irrelevant to the question of Mr. Bhutto’s guilt. Accordingly, I would expunge them.
In the result, I hold that the prosecution has failed to prove beyond reasonable doubt the guilt of Mr. Bhutto and of Mian Abbas, and I would, therefore, allow their appeals and order their release. But, for the reasons given herein, I would dismiss the appeals of the other three appellants.
MUHAMMAD HALEEM, J.-I have had the benefit of reading the judgment proposed to be delivered by my learned brother G. Safdar Shah, J., and I entirely agree with the reasons and the conclusions reached therein. However; I feel inclined to add a short note.
As the prosecution case mainly hinges on the evidence of the approver, Masood Mahmood, the question arises as to whether he should be believed or not ? An overall examination, of his evidence, has led me to conclude that it is not of the quality on which reliance can be placed. Not only that it suffers from inherent weaknesses but, also tends to show that he was a man of conscience which conduct is wholly unnatural in the background of the facts elicited in his evidence. This feature had opened the gate for the argument as to whether the alleged order given to him by appellant Zulfikar Ali Bhutto to kill Ahmad Raza Kasuri and his own reaction to it amounted to an agreement within the meaning of section 120-A, P.P.C. However, this question has been resolved in the judgment of my learned brother G. Safdar Shah, J., and I need not go into it. The High Court has construed the substantial omissions and improvements in his evidence as one of “details or omissions of matters which have been brought on record by the Public Prosecutor by putting specific questions” In my opinion these omissions and improvements vitally affect his truthfulness and, therefore, in resolving it in favour of the prosecution the High Court has given an illusory value to his evidence. If I may say so with respect, this was wholly unjustified, for, the benefit of doubt in the evidence must, in law, go to the accused as that is the elementary principle of criminal jurisprudence.
It is also not understandable that being in the position of an approver he would not be aware of the Islamabad incident; when questioned about it in the cross-examination, he stated that he had a hunch, of it. The reply hardly inspires his role as an approver. It is difficult to believe his tale that he was apprehensive of his life whilst he was receiving all the favours from appellant Zulfikar Ali Bhutto. Apparently, this explanation was tailored to justify his reaction to the direction to kill Ahmad Raza Kasuri which appears to me to be a padding. These are some of the salient features which I have pointed out but there are others which also reflect on his truthfulness.
Considering the appalling nature of the defects in his evidence which have been sufficiently dealt with in the judgment of my learned brother G. Safdar Shah, J., I am firmly of the opinion that his evidence is unnatural and, thereby, lacks the guarantee to inspire confidence. ‘ Lastly, if I may say so that while giving evidence, he appeared to sit on the fence trying to minimise his role which is not the ordinary conduct of an approver. Such being the state of his evidence it does not appeal to wisdom and I would, therefore, disbelieve him. This should suffice to demolish the case of conspiracy. Nevertheless it would not be out of place to refer to the corroboratory evidence which to me appears to be inconclusive and thus fails to lend assurance to the Ipse dixit of the approver in essential respects. One limb of it is furnished by Saeed Ahmad and the other by M. R. Welch ; his two secure reports, one of which was addressed to Masood Mahmood ; and a letter sent by him in reply to the query made by Mian Abbas, a co-conspirator.
Taking first the evidence of Saeed Ahmad, all that he says is that at the conclusion of a routine meeting, appellant Zulfikar Ali Bhutto asked him as to whether he knew Ahmad Raza Kasuri to which he replied in the negative and, thereupon appellant Zulfikar Ali Bhutto told him to remind Masood Mahmood about something he had asked him to do, which message he conveyed to Masood Mahmood on the green line. This part of his evidence is inherently improbable as appellant Zulfikar Ali Bhutto could have himself conveyed it on green line to Masood Mahmood in which case there was no occasion to have an intermediary. I fail to see how, even if it is accepted, the same can be read as corroboratory evidence, for it was indefinite ; and it was Masood Mahmood alone who understood what it meant, whose evidence again required corroboration. Therefore, in my opinion, such corroboratory evidence is useless as being vague.
As for M. R. Welch, he has not implicated Zulfikar Ali Bhutto in what was conveyed to him at Quetta on 29th of July, 1974, by Masood Mahmood and, therefore, the communication fails to connect him with the alleged conspiracy. In regard to his own conduct, he affirmatively stated that he disassociated himself from what he was told to do ; and as for the secure reports he described them as being routine in the context of his duties. As for the querry made by Mian Abbas as to where Ahmad Raza Kasuri had slept during his visit to Quetta, he replied to it in a routine manner after a lapse of month and a’ half or so. I cannot help observing that the secure reports and the two communications on the face of them do not give the impression of having emanated pursuant to any conspiracy but the High Court read it in that light. The learned Public Prosecutor also contended at the Bar in support of it but to me such a reading of these documents is tantamount to straining it towards a particular end which is not permissible as it would contravene the rule of doubt. This corroboratory evidence is, therefore, of no avail.
The learned Public Prosecutor next contended that in assessing the guilt of appellant Zulfikar Ali Bhutto, the evidence should be read as a whole but I may point cut that before such evidence can be taken into consideration the law requires that each piece of evidence should be free from doubt which is not the case here. Enough has been said to raise` doubt on its authenticity in the judgment of my learned brother G. Safdar Shah, J. Apart from it the other pieces of evidence do not directly involve the appellant, Zulfikar Ali Bhutto, as a conspirator. Such being the case, the prosecution has failed to establish its case against Zulfikar Ali Bhutto.
As for Mian Abbas, he has been absolved from the crime for the very justifiable reasons given in the said judgment and I do not think it necessary to go into this question again. The other three appellants, Ch. Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar have not only stuck to their confessions but have admitted their guilt when examined under section 342 of the Code of Criminal Procedure. There can, therefore, be no manner of doubt .so far as their guilt is concerned. As to why they implicated themselves it is not for me to answer this hypothetical question. It might be that there was another conspiracy apart from the one the prosecution had relied on.
Accordingly, I would allow appeals Nos. 11 and 12 of Zulfikar Ali Bhutto and Mian Muhammad Abbas respectively and acquit them ; and dismiss Appeal No. 13 of the other three appellants.
G. SAFDAR SHAH, J.---By this judgment, I propose to dispose of Criminal Appeals bearing Nos. 11, 12 and 13 of 1978, all of which are directed against the judgment of a Full Beach, comprising five Judges of the Lahore High Court, dated March 18, 1978, in Criminal Original Case No. 60 of 1977.
The five appellants herein were tried by the Lahore High Curt, on the original side, for conspiracy to assassinate Ahmad Raza Kasur; a member of the then National Assembly of Pakistan and in pursuance thereof making a murderous assault on him by firing on his car with automatic weapons on the night between November 10 and 11, 1974, in consequence of which his father Nawab Muhammad Ahmad Khan was killed. Upon the mass of oral and documentary evidence produced during the trial, all of them were found guilty, accordingly convicted and sentenced as under :----
(1) Each to five years’ R. I. under section 120-B read with section 115, P. P. C.;
(2) Zulfikar Ali Bhutto, Mian Muhammad Abbas and Ch. Ghulam Mustafa each to seven years’ R. I. under section 107/109, P. P. C. ;
(4) Arshad Iqbal and Rana Iftikhar Ahmad each to seven years’ R. I. under section 307/34, P. P. C. ; and
(4) Zulfikar Ali Bhutto, Mian Muhammad Abbas and Ch. Ghulam Mustafa each to death under section 302/301/109/111, P. P. C., whereas Arshad Iqbal and Rana Iftikhar Ahmad were awarded similar sentence under section 302/301/34, P. P. C. with further direction that so far as appellant Zulfikar Ali Bhutto is concerned, he would pay Rs. 25,000 as compensation to the heirs of deceased Nawab Muhammad Ahmad Khan under section 544-A, Cr. P. C: failing which he was to undergo rigorous imprisonment for a period of six months. All the said sentences of imprisonment were ordered to run concurrently and are to take effect in case the sentence of death awarded to the appellants is not carried out.
The background of the case leading to the carrying out of murderous assault on Ahmad Raza Kasuri, in which his father lost his life has been clearly brought out in the judgment of my Lord the Chief Justice. Therefore, it would be unnecessary to cover the same ground again except when it is absolutely necessary. The prosecution case in the High Court was that Ahmad Raza Kasuri was one of the founder members of the Pakistan People’s Party (hereinafter referred to as the P. P. P.), which was founded in 1967 and of which Zulfikar Ali Bhutto was the Chairman. In the General Elections held in 1970, Ahmad Raza Kasuri was elected as a member of the National Assembly of Pakistan on the ticket of the P. P. P. from Kasur Constituency No. NA-63. In the events that happened, the said General Elections, instead of paving the way for achieving a better consolidation and integration of the two wings of the country, ended up in the cessation of the Eastern Wing now a sovereign and an independent country, named Bangla Desh. On the happening of the said traumatic event in the political life of the Nation, Zulfikar Ali Bhutto whose P. P. P. had captured the majority of seats in the National Assembly, was called upon by the then Chief Martial Law Administrator and the President, General Muhammad Yahya Khan to form the Government. In December, 1971, Zulfikar Ali Bhutto was handed over the power by General Muhammad Yahya Khan as President of Pakistan as well as the Chief Martial Law Administrator and soon thereafter formed his Government in the Centre and in the two Provinces of the country, namely, the Punjab and the Province of Sind, where his party was returned in majority. Ahmad Raza Kasuri, who seems to have become disenchanted with Zulfikar Ali Bhutto because of his alleged role which ultimately led to the break-up of the country, started bitterly criticising the person and policies of the latter which strained their relations with the result that Zulfikar Ali Bhutto developed a personal hatred against him. On January 17, 1972, a murderous attack was made on the life of Ahmad Raza Kasuri at Kasur and in that behalf a criminal case was registered. In the year 1973, Kasuri left the P. P. P. and joined another political party by the name of Tehrik-e-Istaqlal, whereafter his criticism of Zulfikar Ali Bhutto became more violent. On June 3, 1974, on the floor of the National Assembly an unpleasant incident took place between Kasuri and Zulfikar Ali Bhutto during the course of which the latter admonished Kasuri to keep quiet, adding “I have had enough of you; absolute poison. I will not tolerate your nuisance.”
The prosecution case is that as a result of the said incident, Zulfikar Ali Bhutto, in order to do away with Ahmad Raza Kasuri, entered into a conspiracy with approver, Masood Mahmood, the then Director-General of the Federal Security Force (hereinafter called FSF) to get Kasuri eliminated through the Agency of FSF. Masood Mahmood, in order to carry out the object of the said conspiracy, brought in appellant Muhammad Abbas his Director of Operation and Intelligence, who in turn directed approver, Ghulam Hussain to organize the assassination of Ahmad Raza Kasuri. In order to enable Ghulam Hussain to carry out the said order, Mian Muhammad Abbas not only arranged for him the supply of arms and ammunition from the armoury of the FSF but also directed appellant Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad to render to Ghulam Hussain all necessary assistance. It is said that in pursuance of the said directions of Mian Muhammad Abbas all the necessary arrangements were completed and consequently on the night between November 10 and 11, 1974, the car of Ahmad Raza Kasuri was fired upon at the roundabout of Shadman-Shah Jamal Colony, Lahore, with automatic weapons by Rana Iftikhar Ahmad and Arshad Iqbal as a result of which his father was killed, while approver Ghulam Hussain supervised the attack, being present in the nearby lane.
On August 24, 1974, a similar attack was made on Ahmad Raza Kasuri at Islamabad with automatic weapons by approver, Ghulam Hussain assisted by some members of the FSF. A case was registered in that behalf but it was filed as untraced by DSP, Agha Muhammad Safdar although he had recovered from the scene of occurrence five crime empties of the same calibre, namely, 7.62 mm. as were used in the Lahore incident.
In the High Court, the prosecution produced 41 witnesses and a large Lumber of documents to prove that- ‘
(i) there existed between Zulfikar Ali Bhutto and Ahmad Raza Kasuri strained relations and enmity resulting in the threat extended to the latter on the floor of the Parliament on June 3, 1974 by Zulfi , Ali Bhutto;
(ii) the conspiracy entered into between Zulfikar Ali Bhutto and Masood Mahmood, in which approver, Ghulam Hussain and the other appellants joined subsequently, to murder Ahmad Raza Kasuri through the Agency of the FSF ;
(iii) attack on Ahmad Ram Kasuri firstly at Islamabad on August 24, 1974 and later at Lahore on November 10/11, 1974, in which his father was murdered ;
(iv) subsequent conduct of Zulfikar Ali Bhutto and his subordinates particularly of Saeed Ahmad Khan and his Deputy, late Abdul Hamid Bajwa with a view to interfering with the investigation of the case so that the possibility of detection of actual culprits may be excluded ; and
(v) preparation of incorrect record of the investigation in 1974-75 by the Police under the direction of Saeed Ahmad Khan and his Deputy, the late Abdul Hamid Bajwa, with the object of shielding Zulfikar Ali Bhutto who was then holding the high Office of the Prime Minister of Pakistan.
All the five appellants herein pleaded not guilty at the trial. Appellant Mian Muhammad Abbas, who had made a confessional statement during the investigation of the case, retracted his confession before the trial opened saying that his said statement was obtained from him under duress as well as promise. He asserted that he did not have good relations with Masood Mahmood; that he had no knowledge of the conspiracy in question and had given no directions to approver, Ghulam Hussain or to other officials of the FSF for the supply of arms and ammunition. He also filed in the High Court a written statement to show that Masood Mahmood was annoyed with him. However, he admitted to have exchanged certain correspondence with M. R. Welch, Director, FSF, stationed at Quetta, and explained that the same was exchanged in routine. He summoned certain defence witnesses to show that he had twice tendered his resignation as Director, FSF as he had no desire to be a party to the alleged criminal activities of the said Force.
During the hearing of these appeals, however, Mian Muhammad Abbas has filed a written statement admitting therein the case of the prosecution but pleading that he had acted under duress due to the pressure brought to bear upon him by Masood Mahmood, the then Director-General of the FSF.
The remaining appellants, namely, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad have stuck to their confessional statements made by them under section 164, Cr. P. C. acknowledging the role attributed to them by the prosecution. They have, however, pleaded that they had no option in the matter as by the oath administered to them on joining service in the FSF, they had simply carried out the orders of their superior, namely, Mian Muhammad Abbas, as also that they were pressurised and threatened by the latter as well as approver, Ghulam Hussain with dire consequences.
After reviewing the entire evidence produced before it, the High Court held that the prosecution had succeeded to establish that there existed strained relations between Zulfikar Ali Bhutto and Ahmad Raza Kasuri which furnished a motive to get him eliminated ; that Zulfikar Ali Bhutto had entered into a conspiracy with Masood Mahmood in which conspiracy the other appellants joined later to execute the object of the conspiracy under the superintendence of Ghulam Hussain, approver ; that the attack on Ahmad Raza Kasuri at Islamabad was a part of the same conspiracy ; that the subsequent attack made on him at Lahore as a result of which his father was killed also was in furtherance of the same conspiracy ; and that the initial investigation in the case was not honest as efforts had been made at various levels to divert the course of investigation with the object of screening the real offenders. The High Court accordingly found all the appellants guilty of the various charges, accordingly convicted them and sentenced them as aforesaid. Finally, the High Court observed that in view of the facts and circumstances of the case, there existed no extenuating circumstances in favour of the appellants as Zulfikar Ali Bhutto was then the Prime Minister of the country and it was his duty to uphold the life and liberty of the citizens of Pakistan, and not to use the Federal Security Force for eliminating his political opponents as also that the rest of the appellants were under no obligation to obey the unlawful orders of their superiors, and consequently the said plea could not afford them a valid defence in law.
During the course of elaborate and protracted arguments, spread over a period of about two months, Mr. Yahya Bakhtiar, the learned counsel for appellant Zulfikar Ali Bhutto has assailed the judgment of the High Court on three main grounds, namely--
(a) that the case against his client is false, fabricated and politically motivated due to an International conspiracy to physically and politically eliminate him ;
(b) that the trial stands vitiated as the Presiding Judge of the Bench, namely, Mr. Justice Mushtaq Hussain was biased against the appellant ; consequently the same was not conducted fairly in that the evidence was not recorded faithfully during the trial ; objections raised by the defence counsel as to the admissibility of evidence were frequently not recorded and were often illegally overruled ; and that as a result of the combined effect of the said prejudicial orders, the appellant was forced to boycott the trial from the 10th of January, 1978 onwards as a measure of protest ; and
(c) that the prosecution had failed to prove its case beyond reasonable doubt ; that the inadmissible evidence had been allowed to be brought on the record and taken into consideration against the appellant whereas admissible and relevant evidence had been shut out to his prejudice ; and that the prosecution witnesses, particularly the two approvers, Masood Mahmood and Gbulam Hyssain were not worthy of credit and that in any case their evidenco, has remained uncorroborated as required by law.
The learned counsel, therefore, contended that on these grounds the appellant was entitled to acquittal or a re-trial by an impartial Bench or Court.
Mr. Yahya Bakhtiar, the learned counsel has also raised about twenty legal objections against the impugned judgment of the High Court. All these objections have been dealt with in the judgment of my Lord the Chief Justice, and considering that in respect of most of them, I have respectfully agreed with his views, it would be better to avoid the duplication of the process except where it would be necessary for me to deal with those objections in respect of which regrettably I have not been able to share his Lordship’s views. Now proceeding from this premise, first 1 must confess that due to the voluminous and difficult nature of the case, in which elaborate, intricate and extensive arguments have been addressed by the learned counsel for the parties from the bar, to untangle some of the knotty legal problems, I was driven into a state of anxiety as to the methodology of writing this judgment. After a great deal of thought which 1 have been able to give to this problem. the plan which propose to follow is to go directly into the heart of the prosecution case in order to see if it can be said to have proved the essential features of it against the appellant beyond any reasonable doubt. In my view, the essential fundamentals of the case of the prosecution are : (a) the motive for which Mr. Zulfikar Ali Bhutto wanted the assassination of. Ahmad Raza Kasuri . ; (6) the alleged conspiracy entered into between Mr. Zulfikar Ali Bhutto and Masood Mahmood for carrying out the said object ; (c) the corroboration of the evidence of Masood Mahmood by Saeed Ahmad Khan ; and (d) the correspondence exchanged. between M. R. Welch, Director, FSF, Quetta, on the one hand and Masood Mahmood and appellant Mian Muhammad Abbas on the other. .
Now this being, the plan of my proceeding with the case, first I should have dealt with the motive.. But on a second thought it would be proper for me to deal with another feature of the case which seems to me to be the starting point in the chain of events which ultimately led to the formation of conspiracy between Mr. Zulfikar Ali Bhutto and Masood Mahmood in order to get Ahmad Raza Kasuri assassinated through the Agency of F§F. Now this feature relates to the meeting held between Masood Mahmood and Mr. Vaqar Ahmad in April, 1974 during the course of which the latter told Masood Mahmood that he was to meet with Mr. Bhutto on April 12,. 1974 when the latter was going to offer him an appointment which he must accept. However, Mr. Vaqar Ahmad was not produced by the prosecution in the High Court, therefore, an objection was taken on behalf of appellant Bhutto, that Masood Mahmood could not possibly depose to the truth of what Mr. Vaqar Ahmad had told him in the said meeting, as his evidence in that respect would be hearsay, but the said objection was rejected with the result that the High Court relied on the evidence of Masood Mahmood against Mr. Bhutto. To this finding of the High Court, Mr. Yahya Bakhtiar has taken serious objection. In order to sec the force of his objection, let us proceed to examine the evidence of hiazood Mahmood, in so far as it relates to what Mr. Vaqar Ahmad had told him in the meeting held in April, 1974.
The evidence of Masood Mahmood that being a member of the Police Service of Pakistan he attained the rank of Deputy Inspector-General, and in 1969 was selected as Deputy Secretary General, CENTO with Headquarters at Ankra. On his return from Ankra in 1970, at his own request, he was posted as Deputy Secretary, Ministry of Defence, later promoted as Joint Secretary and Additional Secretary and then appointed to what he has called `. a punishment post, viz., Managing Director, Board of Trustees Group Insurance and Benevolent Fund in the Establishment Division. On being appointed to that post, he attempted to meet with Mr. Vaqar Ahmad, the then Secretary Establishment, but did not succeed. Sometime in early April, 1974, however, Mr. Vaqar Ahmad called him and told him that he was to meet appellant Bhutto on April 12, 1974, but before that he should first come and see him. Mr. Vaqar Ahmad was very good to him in the said meeting. He told him that Mr. Bhutto was going to offer him an appointment which he must accept. He then dilated on the state of his domestic affairs saying that his wife was not keeping good health ; his children were small ; he himself was a heart patient ; he had yet to clear the loans obtained by him from the bank as well as the Government in connection with the construction of only house which he possessed ; that under the revised Service Rules an officer of Grade 21 (which he was) and above could be retired from service at any time ; and that he actually read out to him the relevant Rules. All this conversation, therefore, left him with the impression that his job, was at the mercy of the Prime Minister and Mr. Vaqar Ahmad.
Now this being the evidence of Masood Mahmood, it should be obvious that what Mr. Vaqar Ahmad had told him in the meeting held in early April, 1974, was evidently hearsay, and not admissible in evidence under section 60 of the Evidence Act, which runs as under :-----
“60. Oral evidence must be direct.--Oral evidence must, in all cases whatever, be direct ; that is to say-
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it ;
if it ‘refers to a fact which could be heard, it must be the evidence of a witness who says he heard it ;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner ;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds;
Provided . ... ... ... ...... ... ...... ...... ... ...... ... ...... ...... ...... ... ................
Provided also ............................................................................
It is evident that the object of this section, which deals with oral evidence, seems to be, as confirmed by the views of eminent authors like Monir, and N. D. Basu, to exclude the kind of evidence which is called “hearsay”. The word “must” appearing in the opening part of the section imposes a duty on the Court to insist upon the production of direct evidence. N. D. Basu has, in the 4th Edition of his Law of Evidence cited a favourite passage found in several works in the last century, vie. “it seems agreed that what another ;has been heard to say is no evidence, because the party was not on oath, also because the party who is affected thereby had not an opportunity of cross-examining”. Kent, C. J., in Coleman v. Southwick (9 John, p. 50,) as quoted by Basu; at page 908 of his Law of Evidence (9th Edition), has summarised the rule of hearsay as follows :----
“why not produced S to testify what he told the defendant, instead of resorting to a by-slander who heard what he said----- hearsay testimony is from the very nature of it attended with all such doubts and difficulties, and it cannot clear them up. `A person who relates a hearsay is not obliged to enter into any particular ; to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to recover any ambiguities ; he entrenches himself in the simple assertion that he was told so, and I bases the entire burden on his dead or absent author ----- The plaintiff by means of these species of evidence would be taken by surprise and be precluded from the benefit of cross-examination of S as to all those material points which have been suggested as necessary to throw full light on his information.
Monir at page 692 of his Law of Evidence (1974 Edition) has, under the heading “Reasons for the exclusion of hearsay”, this to say on the subject. “The rejection of hearsay is based on its relative untrustworthiness for judicial purposes owing to (i) the irresponsibility of the original declarant, whose statements were neither on oath, nor subject to cross-examination ; (ii) the depreciation of’ truth in the process of repetition ; and (iii) the opportunities for fraud, its admission would open ; to which are sometimes added ; (iv) the tendency of such evidence to protract legal inquiries ; and (v) to encourage the substitution of weaker for stronger proofs.”
The underlying principle in section 60 of the Evidence Act seems to be to reject all hearsay evidence in proof of any fact which in its nature is susceptible of direct evidence by a witness who can speak from his own knowledge, for being under the moral and legal sanction of oath, and being aware of running the risk of perjury, he offers himself for cross-examination by the defendant in support of the truth or his evidence. It is true that by the plain language of the section, the evidence of a witness who says that he had been told ‘so and so’ by B would be admissible in evidence in proof of the fact that the said statement had actually been made to him by B but the same would be inadmissible in proof of the contents of the said statement unless B himself appears as a witness an affirms the truth of what he had told him. For example if the fact in issue in a case is as to whether A had struck B, the evidence of C who had not seen the occurrence that D, who had actually seen the occurrence, had told him that A had struck B would be admissible under section 60 of the Evidence Act only in proof of the fact of what C had told him but the same would be inadmissible in proof of the truth of the said statement. As another example, suppose A files a suit against B for the recovery of Rs. 5,000 --- which according to him he had given on loan to B. The loan transaction being oral, A produces C in evidence who says that D had told him that the said loan had been advanced by A to B in the presence of D. Now the evidence of C of what D had actually told him would be admissible in evidence under section 60 of the Evidence Act only in proof of the fact that the said statement had been made to him by D but the same would be inadmissible in proof of the contents of the said statement unless D himself appears in the witness-box, affirms the truth of what be had told C and subjects himself to cross-examination by B. This to my mind seems to be the only sensible construction of section 60 of the Evidence Act. If the section is construed differently, it would follow that the statement of a witness, who has not appeared in the witness-box, and tendered himself for cross-examination by the other side, would be brought on the record of the case through the mouth of another witness, with the result that a flood gate of mischief would have been opened through which a mass of hearsay evidence would be allowed to inundate the field of all conceivable judicial proceedings. In Khurshid Ahmad v. Kabool Ahmad and others (P L D 1964 Kar. 356) referred to by Monir at page 692 of the Law of Evidence, the scope of section 60 had fallen for consideration in the following circumstances : In a case of double murder the details of which may not be given, one Yasin Rajput a member of the local Union Council, was examined by the prosecution in the trial Court as a witness. The evidence given by him was that as member of Shahpur Chakar Union Council, within the area of which the said murders had taken place, he came to the scene of occurrence in the evening and learnt from complainant Khurshid and another Khurshid (PW. hl) that the accused were responsible for the crime. The High Court, however, discovered that neither the complainant nor Khurshid Ahmad (PW. 11) were asked, while giving evidence, as to whether they had met or spoken to Yasin Rajput at all that evening, and consequently the High Court held the evidence of Yasin to be hearsay and thus inadmissible. In Santa Singh v. State of Punjab (P L D 1956 S V (1-41.) 527) more or less a similar situation had arisen for consideration. In that case the precise question which had fallen for consideration was whether the sketch map of the place of occurrence, prepared by the Draftsman, after ascertaining from the witnesses where exactly the assailant stood at the time of the commission of the offence, and then measuring the distance between the two places shown to him and putting them down on the plan, was hit by the rule of hearsay? The Court consisting of five learned Judges was divided in its opinion, but the majority answered the said question in the negative thus----
“it is not unusual to have a plan drawn by a draftsman and this is not done to evade the provisions of section 162 of the Criminal Procedure Code. If the draftsman is asked to prepare a sketch map of the place of occurrence, and if after ascertaining from the witnesses where exactly the assailant and the victim stood at the time of the commission of the offence, the draftsman measures the distance between the two places thus shown to him and puts it down on the plan, and further, if the witnesses corroborate his statement that they showed him the places, the evidence is legal and admissible. Even if the Court rules out under section 162, Criminal Procedure Code as inadmissible what the witnesses told the Head Constable and the Sub-Inspector, there is no such bar to the evidence given by the draftsman.
Nor is the evidence hearsay when the eye-witnesses have been called and they say that they showed the different spots to the draftsman and in so far as the distance is concerned the draftsman himself measured them as he swears in the witness-box that the distances shown in the sketch are correct:”
The minority judgment in that case, however, excluded from consideration the sketch map on the ground that the evidence of the Draftsman taken with what he had noted on the map could only be treated as evidence of the prior statements of the witnesses recorded in the course of the investigation by the Police and was, therefore, inadmissible either as substantive or corroborative evidence amplifying the evidence given by the eye-witnesses in Court. Now this finding of their Lordships is no doubt weighty enough. But evidently the same was reached on the basis of another distinct principle and not under section 60 of the Evidence Act. In this view I would rather go by the majority ‘judgment in which the true scope and connotation of section 60 of the Evidence Act had specially fallen for consideration. It should be noted, however, that in that case the Draftsman and all the witnesses had appeared .in Court and corroborated each other. Therefore, their Lordships held that the sketch map prepared by the Draftsman, with the help of the witnesses, was not hit by the rule of hearsay evidence. Respectfully I agree with that conclusion. Assuming for the sake of argument, however, that the Draftsman alone had appeared in the witness-box in support of the sketch map prepared by him with the aid of witnesses, would the majority judgment have been the same ? Perhaps the answer ought to be in the negative. In that case the evidence of the Draftsman, in which he had deposed that the sketch map had been prepared by him with the aid of witnesses on the spot, would be tantamount to hearsay evidence and thus inadmissible under section 60 of the Evidence Act.
Now bearing these principles in mind, it should be clear that the evidence of Masood Mahmood in regard to what Vaqar Ahmad had told him in the meeting held in April, 1974, would be admissible in evidence under section 60 of the Evidence Act only in proof of what he had told him as a fact, but not in proof of the truth of the said statement of Vaqar Ahmad. In my view this evidence of Masood Mahmood seems to clearly on all fours with the evidence of Yasin Rajput and of the Draftsman in the above Karachi and Indian Supreme Court cases, respectively, and so being in the nature of hearsay would be inadmissible under section 60 of the Evidence Act.
Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, has attempted to support the finding of the High Court. He contended that the said evidence of Masood Mahmood was not hit by the rule of hearsay, and thus was admissible under section 60 of the Evidence Act. In support of his contention be relied on two judgments of the Privy Council : (1) Sm. Bibhabati Devi v. Ramendra Narayan Roy and others (AIR I 947 P C 19) and Subramaniam v. The Public Prosecutor (P L D 1958 P C 100). In the First case, which is popularly known as the Sanyasi’s case, the true scope and purport of section 60 of the Evidence Act hid fallen for consideration. The facts of the case were that Ramendra Narayan Roy, the respondent-plaintiff before the Privy Council, filed a suit against the appellant in the Court of First Subordinate Judge, at Dacca, for declaration that he was the second son of late Rajah Rajendra Narayan Roy of Bhowal ; that his possession, in respect of one-third of his share of the properties described to the schedule may, therefore, be confirmed in his name or, if from the evidence, and under the circumstances, his possession could not be established, then possession thereof should be given to him.’ The appellant defendant in the written statement filed by her denied, inter alia, the identify of the respondent-plaintiff, as also that the suit was within time. After a very long trial lasting for 608 days, the learned trial Judge decreed the suit, of respondent. On appeal by the appellant-defendant, a Special Bench of the Calcutta High Court. affirmed the decree and dismissed the appeal. The-appellant-defendant finally went in appeal to the Privy Council, where one-.of the contentions raised on her behalf were, and this is the contention with which we are concerned in the present case, that the learned trial Judge had erred by accepting the evidence of four witnesses (referred to as the `Maitra group’) as their evidence was hearsay, and not admissible under section 60 of the Evidence Act. Now the need to produce the said four witnesses in the trial Court had arisen because the respondent-plaintiff was alleged to have, due to a type of syphilis, died at the family rented house called `Step Aside’ at Darjeeling in April, 1909. The clam of the respondent-plaintiff was that he was taken for dead about dusk, between 7-00 and 8-00 o’clock on the evening of 8-5-1909. ; that arrangements were at once made for his cremation ; that his body was taken in a funeral procession to the old sasan, and placed in position for cremation, when a violent storm of rain caused the party to take shelter ; that, on their return, after the rain had abated, the body was no longer .there ; that thereafter another body was procured and taken to ‘Step Aside’, and was the subject of the procession and cremation the following morning. He maintained that while the funeral party was, on the evening of 8-5-1909, sheltering from the storm, he was found to be still alive by four sanyasis (ascetics), who were nearby and had heard certain sounds from the sasan and who released him, looked after him, and took him along on their, wanderings ; that when he recovered from an unconscious state, he lost all memory of who he was ; that some eleven years later he recalled ‘that he came from Dacca but not who or what he was ; that in December, 1920, or January, 1921 he reached Dacca, and took up a position on the Buckland Bund, a public walk on the bank of the River Buriganga at Dacca ; that thereafter followed a period of gradual recognition or suspicion of him as the Second Kumar by certain people, which culminated in the removal from his body of the ashes, with the result that his relatives recognised him and his sister accepted him as the Second Kumar. In order to prove this seemingly fantastic story, the respondent-plaintiff produced in the trial Court the witnesses of the `Maitra Group’ who supported him. The pivotal point on which the fate of his case evidently hinged in the trial Court was the precise time of his `death’ at Darjeeling in May, 1909. If it could be proved .hat his `death’ had taken place at dusk, between seven and eight o’clock, on 8-5-1909, his evidence would be credible but in case he was proved to have `died’ shortly before midnight ; and that the following morning his body was taken in funeral procession and was cremated with the usual rites at the new sasan at Darjeeling, then his story would be unacceptable and by would be non-suited.
Now the evidence of witnesses of the ‘Maitra Group’ was that “one day they were seated in the common room of the (Lawis Jutilee) Sanitorium before dinner- that would be about 8-00 p. m.--chatting, each does not recollect all the rest, but each recollects the day, and the fact they used to be in the common room before dinner. They recollect the day, nor the date ex anything, but the day when a certain thing happened. When they were so seated, and there were others too, a man came with the news that the Kumar of Bhowal was just dead, and he made a request for men to help to carry the body for cremation. Principal Maitra has a distinct recollection of this request the news broke in upon the talk they were having, and the thing has stuck in his memory”. It is clear from the judgment: however, that the man who came to the common room and broke the news of the `death’ of Second Kumar to the witnesses of the Maitra Group’ was not examined. Therefore, an objection was taken to their evidence tinder section 60 of the Evidence Act, but this objection was repelled by the Privy Council as under :-
“18. Their Lordships are of opinion that the statement and request made by this man was a fact within the meaning of Ss. ,3 and 59, Evidence Act, 1872, and that it is proved by the direct evidence of witnesses who heard it, within the meaning of S. 60 ; but it was not a relevant fact unless the learned Judge was entitled to make it a relevant fact by a presumption under the terms of S. 114. As regards the statement that the Kurnar had just died, such a statement itself would not justify any such presumption, as it might rest on mere rumour, b-at, in the opinion of their Lordships, the learned Judge was entitled to hold, in relation to the fact of the request for help to carry the body for cremation, that it was likely that the request was authorised by those in charge at Step Aside, having regard to `the common course of natural events, human conduct and public and private business’, and therefore to presume the existence of such authority. Having made such presumption, the ‘fact of such an authorised request thereby became a relevant fact, and the evidence of the Maitra group became admissible. Accordingly, this contention fails.”
Now the ratio of this dictum would seem to be based on two assumptions :--(1) that according to the Hindu custom cremation would, when possible, follow immediately after the death, of which notice was taken at the end of para. 17 of the judgment ; and (2) upon the presumption drawn by the learned trial Judge, under section 114 of the Evidence Act, in favour of the evidence of the witnesses of Maitra group, to the effect that it was likely that the request was authorised by those in charge of the plaintiff’s house, having regard to “the common course of natural events, human conduct acid public and private business, and therefore, to presume the existence of such authority. Having made such presumption, the fact of such auihoriszd request thereby became a relevant fact, and the evidence of the witnesses became admissible.”
The said judgment is evidently distinguishable. All that had allegedly transpired between Mr. Vaqar Ahmad and Masood Mahmood was no doubt made by the High Court as a relevant fact, as the High Court has relied on the evidence of Masood Mahmood, but the High Court has not drawn any presumption in favour of the said evidence to the effect that having regard to “the common course of natural events, human conduct and public and private business”, Mr. Vaqar Ahmad could have made to Masood Mahmood the said statement. In fact the High Court could not have drawn in favour of the said evidence of Masood Mahmood any such presumption under section 114 of the Evidence Act, as the offer of a post made to Masood Mahmood by Mr. Bhutto, respecting which Mr. Vaqar Ahmad had informed Masood Maahmood, was something out of the common course of the business of the Government for normally Masood Mahmood could have been appointed to any post by an order made in that behalf by the competent authority or by the issuance of a notification to that effect.
The second judgment relied upon by Mr. Ijaz Hussain Batalvi also is distinguishable. 1n that case, which was an appeal from the Supreme Court of the Federation of Malava, the appellant before the Privy Council was apprehended by members of the Security Forces during a search operation of the terrorists. On being apprehended, the Security Forces found the appellant wounded on the head back, neck, right arm and right hand and wearing a belt containing 20 rounds of ammunition. The possession of this ammunition, for which he could not offer any lawful excuse, was an indictable offence under Regulation 4 (1) (b) of the Federation of Malaya Emergency, Regulations, 1951, and on conviction thereunder he could be sentenced to death. It seems that after his apprehension, the appellant was admitted to a hospital for treatment ; was questioned by a Police Inspector, and he replied, among other things, that while walking along a certain road he was accosted by three Chinese terrorists armed with pistols ; that they took him forcibly to a camp having about a hundred armed terrorists ; that he was made to stay there for about a month and, was given training whereafter he was given a rifle and ammunition ; that he was thus detailed with twelve others, to go and collect food for the inmates of the camp ; and that after some days they camped at the spot where they were attacked by security forces and he was apprehended. During his trial, however, he gave a full statement, saying “---- when I was just walking down a small hill, where there was `lallang’ at the sides, a Chinese came oat and asked me to halt ; I did not know then that he was a Communist ; he came from behind me. I asked him why are you stopping me ? I want to return home. He spoke in Malay and I replied in Malay. He then asked me, Do you know who I am? and so saying he drew out a revolver from behind him ; to all appearance he was a civilian ; he pointed that pistol at me and said `I am a Communist’ and it was then I knew that he was one. He asked me to produce my I .Card ; when he looked at my I. C. he spoke something in his own language and 2 others came out ; the 3 then surrounded me ; of the other 2 one had a pistol and the other had a rifle about a yard long ; they told me I could not return home ; two of them had knives like sickles.”
He then described how he was forced to accompany the terrorists, one of whom walked in front and two behind, who told him he was being taken to their leader.”
At this stage, the learned Presiding Judge cautioned the counsel for the appellant that hearsay evidence was not admissible and unless the bandits were called in evidence, the conversation of the appellant with the bandits would be inadmissible. Since the learned Presiding Judge thus shut out the appellant, from giving evidence, an objection was taken in that behalf before the Privy Council and their Lordships held : ----
“In ruling out peremptorily the evidence of conversation between the terrorists and the appellant the trial Judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is trot hearsay and inadmissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have ‘Seen made to the appellant by the terrorists which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes.”
It is clear to me that this dictum of their Lordships, in so far as it relates to the construction of section 60 of the Evidence Act, seems just to have re-affirmed the principle enunciated in the earlier case of Sm. Bibhabati Dev. v. Ramendra Narayan Roy and others viz., that the evidence of a witness as to the truth of the statement made to him by a person who is not himself called as a witness would be hearsay, if the object of the evidence is to establish the truth of what is contained in the said statement. However, if the object should only be to prove that the said statement was made as a fact then the evidence of the witness would admissible under section 60 of the Evidence Act. Now this dictum, instead of being of any help to the learned counsel, rather goes against him: The High Court has not only accepted the evidence of Masood Mahmood, in proof of the truth of what Mr. Vaqar Ahmad had told him, in the meeting, held in April, 1974, but has relied on the same against Mr. Zulfiqar Ali Bhutto. With respect, this was impermissible. However, if the effort of the learned counsel has been to show that the evidence of the appellant :u the case before the Privy Council was held admissible in proof of the truth of what the terrorists had told him, he is mistaken. In this respect the ratio of the judgment is absolutely clear to admit of any doubt whatever. What was held in that case was “the fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness ........... .............In the case before their Lordships statements could have been made to the appellant by the terrorists which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes”. ‘
The appellant in that case was tried under Regulation 4 (1) (b) of the Federation of Malaya Emergency Regulations, 1951, for having been found in possession of 20 rounds of ammunition for which he could not offer any lawful excuse. In defence, however, he had relied on section 94 of the Malaya Penal Code, corresponding to section 94, P. P. C., contending that being under, duress at the hands of the terrorists, who had threatened to kill him, he cannot be said to have been guilty of the offence with which he had been charged. ‘ During the course of giving his evidence, however, he was shut out by the learned trial Judge on the ground that what the terrorists had told-him was inadmissible in evidence. Now this order of the learned trial Judge was clearly wrong, because what the terrorists had told the appellant was admissible in evidence as a fact, but even that part of his evidence was ruled out by the learned Judge. It was in this background that their Lordships of the Privy Council held “that the learned trial Judge directed himself and the assessors that there was no evidence of duress because at the actual moment of capture the terrorists had left and the learned Judge thought that duress, if it bad existed, had ceased to exist.’ But threats previously made could have been a continuing menace at the moment the appellant was captured, and this possibility was at least a Matter for consideration by a jury or by a Judge and assessors. The terrorists or some of them may have come back at any moment”. Having recorded this finding, their Lordships proceeded to observe that what the terrorists had actually told the appellant was indeed evidence within the meaning of that expression and the same should have been placed before the jury for consideration even though “it may have failed on ground of credibility or other grounds to establish the existence of duress, but it would be incorrect to say that there was no evidence”.
It should thus be, clear that in that case, the learned trial Judge had evidently misconstrued the relevant provisions of the Law of Evidence, perhaps corresponding to section 60 of our own Evidence Act, with the result that he substantially deprived the accused, amongst others, to establish his defence under section 94 of the Penal Code of Malaya. In these circumstances, the judgment relied upon by the learned counsel, has no relevancy to the facts of this case.
Finally, reference may be made to a judgment of the Lahore High Court in the case of Kakar Singh v. The Crown (A I R 1924 hah. `733), in which the facts were as follows : . .
In that case Kakar Singh convict was sentenced to death for the murder of hid wife: In the High Court, it was argued on his behalf that in view of the facts and circumstances of the case the learned trial Judge was wrong to convict him for murder not realising that his case fell within the four corners of Exception I to section 300 of the Penal Code. In support of this assertion the learned counsel for the appellant relied on the statement of Hira Singh (P. W. 6) according to whom he had met the appellant soon after the commission of the crime and “I asked him (appellant) what had happened and he said `what had to be’. He also said that the deceased had said to him `let Corkhi come and have intercourse with me and I will then prepare your food. If you do not, 1 will not prepare your food”: In rejecting the said’ contention of the appellant the High Court observed “it is obvious that this contention cannot be allowed to prevail. A statement made by an accused person immediately after the occurrence of an offence is no doubt relevant as showing the existence of any state of mind, but as laid down in section 60 of the Evidence Act, oral evidence must in all cases whatever be direct and if it refers to a fact which could be. heard, it must be the evidence of a witness who says he heard it.
While it may be accepted that the appellant gave Hira Singh this account as the reason of his action, it cannot be held that Hira Singh’s statement proves that the woman used these words. It may amount to proof that the appellant immediately after the occurrence was in a state of excitement due to something either’-said or, done by the deceased, but what was said or done cannot be regarded as having been proved. I respectfully agree with this conclusion: In point ‘of fact the said finding recorded by their Lordships of the Lahore High Court more than half a century ago is in accordance with the finding recorded by the Privy Council in the above two judgments : A I R 1924 Lah. 733 ; A I R 1947 P C l9 ; P L D 1958 P C 100. Evidently, therefore, the contention raised by the learned Special Public Prosecutor has no force in it and the same is rejected .
I would now take up the motive for which Zulfikar Ali Bhutto is said to have entered into conspiracy with Masood Mahmood in order to get Ahmad Raza Kasuri assassinated through the Agency of FSF Since the evidence of the prosecution in proof of the motive in this case is purely circumstantial in nature. It would be instructive to keep in mind the well settled principles relating to the appreciation of circumstantial evidence. Now Pike most things, circumstantial evidence has its merit and demerit. In his treatise on circumstantial evidence, at pages 46 and 47, Sir Afred Wills’, has cited two old cases, ‘namely : Rex v. Patch and Rex v. Smith, in which circumstantial evidence was commented upon thus;
“When circumstances connect themselves with each other, when they form a large and a strong body, so as to carry conviction to the minds of a jury, it may be proof of a more satisfactory sort than that which is direct. So where the proof arises from the irresistible force of a number of circumstances, which we cannot conceive to be fraudulently brought together to bear upon on point, that is less fallible than under some circumstances direct evidence may be.’
Similarly in the Law of Evidence, Monir at -page 23 of the First Volume of 1974 Edition has observed that “circumstantial evidence is, however; the best sort of evidence because, as the saying goes, “men may lie but circumstances will not”. Having said this, however, the learned author puts in a word of caution that “ordinarily, circumstantial evidence cannot he regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. For proof by circumstantial evidence four things are essential :-
(i) That the circumstances from which the conclusion is drawn be fully established.
(ii) That all the facts should be consistent with the hypothesis.
(iii) That the circumstances should be of a conclusive nature and tendency.
(iv) That the circumstances should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved.” .
In Lal Shah v. The State (1970 S C M R 743) this Court had the occasion to consider the legal effect of circumstantial evidence in a case of murder, and recorded the following findings : -----
“The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one conclusion, and, in order to find the guilt of a person accused of a criminal charge, the facts proved must be incompatible with his innocence and incapable of any explanation upon any other reasonable hypothesis than that of his guilt. The test has riot been satisfied in this case. The pieces of circumstantial evidence analysed thereinbefore are not of such nature that they lead to the inevitable conclusion that the appellant and nobody else was responsible for the murder of Mst. Bahishtan, having regard to the nature of the evidence, a reasonable doubt does arise as to the guilt of the appellant for the alleged murder. He is, accordingly entitled to a benefit of doubt. We, therefore, allow the appeal, set aside his conviction and sentence and direct that he shall be set at liberty forthwith.”
In Mst. Sairan alias Saleema v. The State (P D 1970 S C 56) which also was a murder case, this Court reiterated the same principle, namely, that circumstantial evidence be so construed as to be incompatible with the innocence of the accused. In a Full Bench judgment of the Lahore High Court in the case of M. Ata Muhammad Khan and others v. The Crown (A I R 1950 Lab. 191.) of which the two former Chief Justices of this Court, namely, Monir and Rehman were the members, had taken the same view observing that if circumstantial evidence cannot be explained on any other reasonable hypothesis only then it can form the basis for the conviction of the accused.
Now bearing these principles in mind, let us proceed to examine the evidence, of Ahmad Raza Kasuri. He deposed in his rather lengthy examination-in-chief, the bulk of which being not really relevant must be ignored, that he was a founder member of the PPP ; in the General Elections of 1970, he was elected on the PPP ticket MNA from Constituency No. NA-63, Kasur ; after the General Elections, appellant Bhutto became power-hungry with the result that the only choice left for him was either to accept his constitutional role, as the leader of the Opposition in one Pakistan, or be the Prime Minister of half Pakistan; as a sign of his hunger for power, he agreed with the five points programme of Sheikh Mujibur Rehman, but the only point on which he did not agree with him was on the question of sharing power, being a member of the inner circle of the PPP, he could read through the heinous design of Mr. Bhutto when he gave a statement at Peshawar in February, 1971, to the effect that the PPP would not attend the forthcoming session of the National Assembly of Pakistan, scheduled to be held at Dacca on March 3, 1971 saying “we would be treated as double hostages and that we would be going to slaughter house”; on February 28, 1971, in Iqbal Park, Lahore, Bhutto addressed a public meeting, and threatened all those intending going to Dacca saying that their legs would be broken, and that whoever wanted to go to Dacca should better go on a single fare ; that on March 14, 1971,, while addressing a public meeting at Nishtar Park, Karachi, Bhutto proclaimed that just as Sheikh Mujibur Rehman was in majority in East Pakistan, he was in majority in West Pakistan, and so power in the two wings of the country be transferred to them, respectively. This statement was published in the Vernacular Press as “Idhar ham udher turn.”
Defying the policy of Bhutto, however, he was the only MNA-elect belonging to the PPP who went to Dacca to attend the proposed session of the National Assembly of Pakistan, because he thought that this was the only way to save the integrity and solidarity of the country. On this serious differences arose between him and appellant Bhutto, and he fell from his favour. Later when the permanent Constitution of Pakistan was framed in August, 1973, he was one of the few members of National Assembly who refused to vote for it or sign the Constitution as it was neither Islamic, nor democratic, nor contained the elements of fairplay. In due course when Bangla Desh came into existence, he refused to recognise it as he thought that Pakistan had been split on account of the Indian aggression and foreign conspiracy. Similarly, he opposed the framing of all black laws by the PPP Government, specially the FSF Act, as he thought that the said Force was going to be used to stifle the voice of all democratic people. To all this, Bhutto took exception as he was allergic to criticism. On June 3, 1974, when Bhutto was addressing the Parliament, eulogising the framing of the permanent Constitution unanimously, he interrupted him and said that he and eight other members had neither signed nor approved the Constitution. On this Bhutto lost his temper, and pointing his finger at him said, “I have had enough of you. Absolute poison. I cannot tolerate you any further.” On the very next day, he came to know that some “Goondas” were looking for him because if the said altercation between him and Bhutto and consequently he moved a privilege motion in the National Assembly in that connection. On August 24, 1974, while driving along the Embassy Road, Islamabad, his car was fired upon in broad daylight by someone from a blue jeep but somehow he escaped. He reported the matter at Islamabad Police Station, vide F. I. R. (Exh. PW. 1/1) but no action was taken thereupon nor indeed was he contacted by any Police ,officer.
After the said incident, he moved another privilege motion before the Committee of the Full House, but the same could not be entertained, as the House was not sitting as the National Assembly of Pakistan. However, as a first step he left the PPP in June, 1973, and joined another political party, namely, Tehrik-e-Jstaqlal, in which party he was soon promoted as a member of the Working Committee. In September, 1974, he went to Quetta to attend the meeting of the Woking Committee of Tehrik-e-lstaqlal and stayed in Imdad Hotel where rooms had been booked for him as well as the Chairman of the party, Retired Air-Marshal Asghar Khan. During his stay at Quetta, a local leader of Tehrik-e-istaqlal made arrangements for his security. But even so he used to slip away from the room during the night because he knew that he was a marked man.
On November 10, 1Q74, he went to attend the wedding ceremony of one Syed Bashir Shah in Shadman Colony, Lahore, he was accompanied by his parents and maternal-aunt. Alter the function was over he started for his house, but on reaching 0e roundabout of Shadman-Shah Jamal Colony, his car was fired upon by automatic weapon. His cat was hit, but he nevertheless accelerated away from the ambush. After a while he noticed that his late father was resting is head on his shoulder. He moved his hand towards him and felt that his band was soaked with blood and realised that his father had been hit. H.: was, therefore, gripped by panic and drove straight to the United Christian Hospital, Lahore. On arrival at the Hospital, his father was taken to the operation theatre. In the meantime his brothers, namely, Major Sahibzada Ali Raza Khan, Sher Ali Khan, Advocate, and Khiaar Hayat Khan, alongwith his family friends Messrs Ayyaz and Javed Zafar :Khan arrived in the hospital. His brother, Major Ali Raza Khan rang up S. S. P., Lahore, M. Asghar Khan who soon arrived at the hospital, followed by Abdul Wakeel Khan, D. I. G. and Mr. Pervaiz Massod, Deputy Commissioner, Lahore, alongwith a large contingent of police’.
Upon arrival at the hospital, he was questioned by these officials whom he told that the ,attack had been made on him on the instructions of appellant Bhutto. However, the draft of the F. I. R. which they proposed to prepare was meant to say that the attack had been made on him on account of political differences. But to this he did not agree. At about 3-00 a.m., when the doctor came out of the operation theatre, and broke the news that his father had died, he lost his temper, therefore, the said officials agreed to take down whatever statement he wished to make about the occurrence. Consequently, he dictated his version to Javed Zafar Khan whereafter he signed the same and handed it to S.S.P., M. Asghar Khan on the basis of which F.I.R. (Exh. PW. 1/2) was recorded at the Ichhra Police Station. After recording the said F.I.R., however, no action was taken by the Police in the matter, nor indeed was he contacted by any Police official except that few of them had come to his house to offer condolences on the death of his father. .
After the said incident, he started taking all possible precautions for his security, and to that end employed an ex-Army Hav. Sher Baz Khan as body guard who used to accompany him to the National Assembly and during the night sleep outside his room in the Government Hostel, Islamabad, armed with a licensed pistol. On November 29, 1974, he moved a privilege motion (Exh. PW. 1/7) in the National Assembly but this motion was ruled out of order. 1n due course a Commission was appointed by the Government of the Punjab headed by Mr. Justice Shafi-ur-Rehman of .the Lahore High Court to enquire into the murder of his father. He appeared, before the said Commission as a witness and maintained that the attack made on his car at Lahore with automatic weapons was organised on the order of Mr. Bhutto, as a result of which his father was killed.
The witness also recalled the antecedent history of his political differences with Mr. Bhutto to show that Mr. Bhutto alone had the motive to assassinate him. He deposed :hat on May 2, 1971, when Mr. Bhutto came to Kasur to address the workers of PPP in Habib Mahal Cinema, the pro-Bhutto elements attacked him as a result of which his hand was fractured. An F.I.R. was accordingly registered in that connection at the City Police Station, Kasur, on the same day. But on the very day, appellant Bhutto suspended his primary membership of the PPP. Faced with this saturation in a Press Conference, held by him on 3-5-1971, he announced the formation of his own independent group within the PPP, namely, ‘Raza Progressive Group’. However, when Mr. Bhutto, took over as the President and Chief Martial Law Administrator on December 20, 1971, he was again attacked at Kasur as a result of which he suffered three bullet injuries in his legs, as also that his brother Khizar Hayat too was injured. In consequence of these injuries he was admitted to Kasur Hospital but later removed to Mayo Hospital, Lahore, where he was operated upon. Of this incident also an F. I. R. was registered at the City Police Station, Kasur.
After this incident, he made temporary peace with accused Bhutto on account of political strategy. He was of the view that since Bhutto was the Chief Martial Law Administrator and was witch-hunting his political opponents by securing their quick punishments from Military Courts, it was advisable to reconcile with him. After the lifting of Martial Law on April 21, 1972, however, he again slowed his ‘teeth’ to Bhutto, and revived his old role of criticising him both inside and outside the National Assembly. At this Bhutto, formally expelled him from the PPP in October, 1972. In June 1973, he joined Tehrik-e-Istaqlal. On April 6, 1976, he again rejoined the PPP because of the instinct of self-preservation, as he was a marked man. Sometime in September, 1975, Saeed Ahmad Khan (PW. 3) and late Abdul Hamid Bajwa started visiting his house in Lahore as well as his room in the Government Hostel Islamabad. Saeed Ahmad Khan would tell him “you know Mr. Bhutto more than myself., You have worked with me. You are a marked man and the danger has not finished as yet. You are a young parliamentarian. You have a very bright- future in the politics of Pakistan. You have not only put yourself on stake but also your entire family on the stake and why don’t you patch up”. These visits continued for sometime. Thereafter Abdul Hafeez Pirzada also visited his house at Lahore in October, 1975, and tried to persuade him to patch up his differences with appellant Bhutto. It was in this background that he rejoined the PPP in April, 1976. And then met Mr. Bhutto on January 7, 1977, i.e. on the very day when the National Assembly was dissolved.
Lastly he said that his was a very happy family. They had no disputes over lands. Furthermore, he produced on the record of the case copies of the various privilege motions moved by him in the National Assembly, viz. Exhs. P.W. I/8, P.W. 1/9, P.W. 1/10 and P.W. 1/11 in proof of the fact that he had been a virulent critic of appellant Bhutto’s policies as well as of his person.
Mr. Kasuri was cross-examined by Mr. Irshad Ahmad Qureshi, Mr. D. M. Awan, and Mr. Qurban Sadiq, who represented the appellants herein the High Court. The effort of Mr. Irshad Ahmad Qureshi seems to have been to prove through the witness that he (Mr. Kasuri) had no enmity with appellants Arshad Iqbal, Rana Iftikhar and Ghulam Mustafa; that he was a virulent critic of the policies of appellant Bhutto; that he had opposed on the floor. of the National Assembly the passing of the Federal Security Force Act ; that before the passing of the said Act the said Force had been used to expell the members of the Assembly by force ; that on the passing of the Fourth Constitutional Amendment Bill, Maulana Mufti Mahmood, Maulana Shah Ahmad Noorani and he had been manhandled by the said force and thrown out of the House. It should be noted that Arshad Iqbal, Rana Iftikhar and Ghulam Mustafa, who are the clients of Mr. Irshad Ahmad Qureshi, had confessed their guilt and that was why the learned counsel had attempted to support the case of the prosecution.
In the lengthy cross-examination of the witness by Mr. D. M. Awan, Advocate, for appellant Bhutto, the witness admitted that he had passed his LL. B. Examination in 1965 ; that as student of the University Law College, Lahore, he was expelled from the College by the then Governor of West Pakistan, as he had opposed the promulgation of the University Ordinance ; that in June, 1966, he met appellant Bhutto for the first time soon after he relinquished the office as Minister for Foreign Affairs of Pakistan ; that he joined the party of appellant Bhutto, namely PPP because he was impressed with its manifesto ; that in the General Elections of 1970, appellant Bhutto visited his Constituency Kasur sometime in August, and on the ticket issued to him he was elected as MNA ; that in May, 1971, on the visit of appellant Bhutto to his Constituency, a public meeting was held by the PPP in Habib Mahal Cinema, but he was not allowed to preside over the said meeting, although he was the Chairman of the local People’s Party ; that according to his impression the said situation was created for him by Mr. Meraj Khalid, the then President of the PPP Lahore District ; Mr. Ghulam Mustafa Khar and Doctor Mobashar Hassan, as they had been instructed in that behalf by appellant Bhutto ; that in the meeting in question he was not only prevented from participation by pro-Bhutto elements, but was attacked and injured respecting which incident he lodged an F. I. R. at the Kasur City Police Station ; that in respect of the same incident a cross-case had been lodged against him and one Muhammad Sharif for causing injuries to the other side ; that in the said case he was summoned to the Court, but was not sure whether he ever attended the Court or not. In answer to a question, whether the said Muhammad Sharif was his supporter ? initially, he denied the suggestion, but subsequently agreed. Continuing with his narration he deposed that no action was taken on the F.I.R. lodged by him in connection with the said incident, but admitted that he had made no efforts to rectify the situation, because appellant Bhutto was in league with the then President of Pakistan, namely, General Yahya Khan, and he thought that his efforts would be futile.
In August, 1971, an attack was made on his house during the night in which his brother Khizar Hayat Khan received over 100 injuries, in that connection an F. I. R. was lodged at the Kasur City Police Station under section 365/148, P.P.C. In answer to a question if in the said F.I.R. Yaqub Maan and his (Kasuri’s) cousin, namely, Nasir Khan were mentioned as the assailants, he pleaded ignorance. He volunteered, however, that Yaqub Maan was obliged to him as he had managed to get him the PPP ticket for contesting elections to the Provincial Assembly ; that, therefore, his relations with Yaqub Maan were very cordial, but their relations started deteriorating due to the unfavourable attitude of appellant Bhutto towards him and his family ; that this change in the attitude of Yaqub Maan became visible soon after appellant Bhutto took over as the President and Chief Martial Law Administrator of the country, as it was soon thereafter i.e. in January, 1972) that he was attacked by Maan and his partymen with firearms, lathis and sharp-edged weapons as a result of which he sufferer three bullet injuries in his leg ; that in a meeting held by him at a place called Khudian, pistol shots were fired at him by some one respecting which incident also an F. I. R. was lodged at the Police Station ; that in connection with the same incident one Akbar Toor had lodged an F. I. R. against him ; that the said case against him was still pending in a Court in which he had secured bail for himself ; and that while addressing the Vehari Bar Association, he was similarly attacked just as he was again attacked at Mirpur, Azad Kashmir, while addressing a meeting.
In regard to the incident at Islamabad of August 24, 1974, in which he was fired upon from a blue Jeep, by some unknown persons, he admitted that in the F. I. R. lodged in that respect he had not ascribed to any one the motive nor indeed had mentioned therein that the attack in question had been made on him at the behest of appellant Bhutto. In regard to the incident of Lahore, however, in which his father was killed, he was questioned if in the F. I. R. of the occurrence he had blamed appellant Bhutto, he replied (after having been shown the portion marked ‘A’ to `A’) that this was his way of stating that Mr. Bhutto had a hand in the murder of his father ; as also that the said incident was in continuation of the process which started with the attack on him in “May, 1971, at Kasur, at the behest of appellant Bhutto. In answer to a question as to why in spite of the said enmity between him and appellant Bhutto he thought it fit to reconcile with the latter ? he replied that he had done so as a0natter of expediency because Mr. Bhutto was the President and Chief Martial Law Administrator of Pakistan as also that Saeed Ahmad Khan (P W. 3) started visiting him in the middle of 1975, and persuaded him to get back into the fold of PPP, saying it was in his own interest to do so, as he was a marked man. He admitted, however, that in order to seek an interview with appellant Bhutto he might have written him a letter in that connection but he was not sure. He admitted that in April, 1976, i.e. after about a month of his interview with appellant Bhutto, he re-joined the PPP ; that he continued to remain a member of and attended the meetings of Tehrik-i-Fikr-i-Quaid-e-Awam, an Organization meant for propagating the political philosophy of appellant Bhutto, up to April, 1977, but again this was in line with his policy of expediency so as to present a -posture of reconciliation between him and appellant Bhutto, as well as due to the instinct of self-reservation. He admitted, however, that although he was no more a member of the PPP, he was sent out as a member of the Parliamentary delegation to various foreign countries ; that on return he submitted a report (Exh. PW. 1/20-D) to appellant Bhutto, saying therein that his stature in the foreign countries had emerged as a scholar statesman. But again this was in line with his policy of expediency to show that he had reconciled with appellant Bhutto which, however, was not the case. He admitted, however, that for the General Elections of 1977, he had applied for the grant of PPP ticket for election to the National Assembly of Pakistan, but his application was turned down, and instead the ticket from his Constituency was awarded to one Sardar Ahmad Ali. In answer to a suggestion made to him that it was due to the said refusal of appellant Bhutto which annoyed him and consequently brought about a radical change in his attitude, towards the latter, he answered in the negative. Similarly, in answer to another suggestion that his opinion about appellant Bhutto to the effect that soon after the General Elections of 1970 he became power-hungry, and that he was prepared to go to the extent of dividing Pakistan, than submit to the majority rule of Sheikh Mujibur Rehman, was based on the statements made by appellant Bhutto himself at Peshawar and Lahore in February, 1971, and at Karachi in March, 1971, he replied in the affirmative. He further admitted to have written to appellant Bhutto letters Exhs. P.W. 1/18-D, P.W. 1/19-D, but explained that he had done so only as a matter of expediency and due to the instinct of self-preservation, just as he had applied to him for the grant of a PPP ticket to enable him to contest the General Elections of 1970, for a seat to the National Assembly of Pakistan.
Mr. Qurban Sadiq lkram, the learned counsel for appellant Mian Abbas cross-examined Mr. Kasuri mairlly to show that at no time he had mentioned the name of appellant Bhutto as the Architect of the conspiracy to assassinate him. He admitted that Mian Muhammad Abbas had no ill-will or enmity against him, nor indeed was he ever known to him. The learned counsel questioned him in regard to the incident at Islamabad, suggesting that the occurrence in question had not taken place at all, but he denied the suggestion. He admitted, however, that he had lodged the F. I. R. about the said incident, as also that he was examined by an Inspector of FIA on 14-9-1917. in answer to a question whether in his said statement he had mentioned that on account of appellant Bhutto’s statements made at Peshawar and Karachi in 1971, he read into the heinous design of the latter and consequently started attacking his policies, he replied that he had done so, because he had handed to the Investigating Officer the official proceedings of the National Assembly of Pakistan, dated February 19, 1973 in which the said allegation:; were made by him. In answer to another question whether in the said statement he had made any mention of the PPL strike at Lahore due to which he started developing differences with appellant Bhutto, he again replied in the affirmative, saying that in that connection too he had shown to the Investigating Officer his scrap book containing the Press cuttings in which the said fact was mentioned. Similarly he was questioned whether in his said statement he had mentioned that appellant Bhutto had, when he visited him at Gole Bagh, Lahore, with a view to persuade him to terminate his hunger strike, got annoyed and took out a pen saying that he was going to resign the Party Chairmanship in his favour, he again replied that he had done so, as he had shown his scrap book to the Investigating Officer containing the Press statements to that effect. He was further questioned whether in his 161 Cr. P. C. statement, recorded on 14-9-1977, he had mentioned that when the S.S.P. Lahore arrived at the hospital he told him that the attach on him had been launched on the instructions of appellant Bhutto, but the S.S.P. and the other officials present tried to put him off saying that the name of appellant Bhutto should not be mentioned, he replied that “I did not mention this. There was no occasion to say so because the police ultimately agreed to record the F. I. R.” However, on the same question being repeated to him subsequently, he replied “the first opportunity that I ever had of stating the facts relating this occurrence was before Mr. Justice Shafi-ur-Rehman during the judicial inquiry. I made and also filed two written statements before him, whatever I have stated in these statements, which are on the record of the judicial inquiry, contained the correct version of the incident”,
‘Now this is all the evidence of Ahmad Raza Kasuri. His evidence would seem to provide sufficient material not only to have a peep into his personality, it also reveals the set pattern of his politics leading to certain irresistible conclusions. As a young politician, having been elected as a member of the National Assembly of Pakistan, on the PPP ticket, in 1970, seemingly without much effort, as the PPP had swept the polls in West Pakistan by a very great majority, he seems to have become ambitious, and in the process earned for himself political enmity in his home tow Kasur. It is his evidence that due to political enmity, on many occasions, he was attacked by Yaqub Maan and his party, in which he was fired upon and injured, as also that an attempt was made on his life during the dark hours of the night at his house in which his brother received as many as 100 injuries. In the F. I. Rs. of the occurrence (Exh. P W. 1/30-D, x Exh. P W. 1/1) and in his statement (Exh. PW. 23/1) recorded in connection with the incident at Islamabad, however, he had not mentioned the name of appellant Bhutto, nor indeed even alluded to the fact that it was h who had engineered the said attacks on him. It is true that in the F. I. R. (Exh. PW. 34/1), relating to the occurrence at Lahore, he ha mentioned the name of appellant Bhutto, but the said document ha to be scrutinised with caution. Now by the scrutiny of the said document, what the witness would be found to have said therein is that the attack in question had been made on him due to political reasons, a in the National Assembly of Pakistan his party, namely, Tehrik-e-Istaqlal, had been stoutly opposing the Government policies ; that as Information Secretary of the said Party he had been the virulent critic of appellant Bhutto ; and that in 1974, Bhutto had, on the floor of the National Assembly, threatened him to the effect that he was fed up with him and that he could not tolerate him any more. Now from this the learned Special Public Prosecutor wished me to hold that appellant Bhutto had been directly named in the F. I. R., but with respect I have not been able to agree with him.
In the F. I. R. all that the witness had expressed was his suspicion to the effect that because he had remained the most virulent critic of the person and policies of appellant Bhutto the attack had been made on him due to political reasons-adding, however, that “it should be remembered that Mr. Bhutto had threatened him on the floor of the Assembly that he was fed up with him and that he could not tolerate him any more”. It should, therefore, be obvious that but for the words reproduced by me in the parenthesis, the witness had unambiguously asserted that he had been attacked due to political reasons. Now by keeping this version of his in juxtaposition with what he added subsequently, namely, “it should be remembered that Mr. Bhutto had threatened him on the floor of the Assembly, etc.” it should be clear that he was only expressing his opinion or suspicion that perhaps the attack on him had been made at the behest of appellant Bhutto, and not that Mr. Bhutto alone was accused by him.
Be that as it may, if the said threat was to be the reason to create in his mind the suspicion that the attack made on him at Lahore was engineered by appellant Bhutto, surely by the same logic the earlier attack made on him at Islamabad ox August 24, 1974 (within about three months of the said threat extended to him) also must have been made at the instance of appellant Bhutto. But neither in the F. I. R. nor in the privilege motion moved by him in the National Assembly on the same day he had mentioned his name nor even the motive due to which he was attacked. I am, therefore, at a loss to understand as to how in connection with the subsequent attack made on him at Lahore in November, 1974, the witness could have possibly assumed that the same had been master-minded by appellant Bhutto ?
Having said this, however, I am not excluding the possibility that Mr. Bhutto could have a motive to do away with Ahmad Raza Kasuri, because he had remained the most vocal critic of his person and policies. In order to examine this possibility it would be necessary to scrutinise the evidence of Kasuri and the documentary evidence. Now 6y the scrutiny of the evidence of Kasuri, as well as the bulk of documents brought, on the record of the case, it is clear to me that in the initial stages of his contact with appellant Bhutto, when the latter made an exit as Foreign Minister from the Government of Field Marshal Muhammad Ayub Khan, Mr. Kasuri seem’ to have been enamoured with the political style of Mr. Bhutto, and made it a point to cultivate his patronage. In this respect reference may be made to documents Exhs. PW. 1(15, PW. 1/16, PW. 1/17-D and PW. 1/18. Now Exh. PW. 1/1S, dated September 13, 1967, is the reply to Kasuri’s letter by appellant Bhutto in which the latter acknowledged receipt of the letter of Mr. Kasuri of September 10, 1967, and said that having remained out of the country for a long time he could not establish contact with him. However, since he was now back in the country, he would contact him and other friends in order to launch a new party in the near future in which respect he will have to do a great deal in his own region. Exh. PW. 1/16 is the reply to Kasuri’s another letter, dated October 5, 1968, by Mr. Bhutto acknowledging therein his earnest work for the party. Exh. P. W. 1/17-D is the copy of the telegram sent by Mr. Kasuri to appellant Bhutto reminding him, about his three previous letters (including letter Exh. P. W. 1/18), in which he had said that he, as well as the other candidates from his area, were anxiously awaiting his reply. This letter, which seems to reveal the very high esteem in which Kasuri was holding Mr. Bhutto, says that “as a dedicated follower of you I strongly feel that you will not disappoint me at this time and, therefore, you will surely grant me a day’s visit to our area. Your one visit will change the complete picture of the elections. I can assure you that all the candidates of PPP for National as well as Provincial will win the elections. In this respect all the candidates of the area join me to request you to please grant us one visit to our area. When you next come to Lahore, you can easily give us time in the last week of this month. Sir, this is extremely important and is really urgent. You have visited the Constituency of other people so many times. You could at least give me a second visit. You had promised to do so when the elections were near and since now elections are near I request you to make a visit to Kasur and adjoining areas.
I hope you will grant this second visit to KRsur as requested above.
Please, please I request you mfr leader whom I have loved the most and my leader will lee it to that I win.
I am keenly waiting for your reply. As soon as I will get the date of your visit I will immediately proceed to arrange for the welcome.
With all my love, regards, prays and wishes for your health, happiness and success all over and everywhere. (Italicisedis mine)
Yours sincerely,
Ahmad Raza.”
Mr. Kasuri was pointedly, cross-examined by the counsel of appellant Bhutto to the effect, if in the initial stages of his contact with the latter, he was enamoured by his person, and political philosophy, and held him in high esteem, but he denied the suggestion saying that he was only impressed with the manifesto of the PPP. Exh. P.W. 1/18, however. reveals a different position. as its there he seems clearly to have expressed for Mr. Bhutto almost reverential feelings, and admitted as if he had all the chrismatic qualities of a political leader of his own dreams. Furthermore, he is urging upon Mr. Bhutto td pay a visit to his region as the same would pave the way to success of all the candidates of the PPP in the ensuing General Elections and in that respect the hope of Mr. Kasuri seems prophetically to have realised, as almost all the candidates from his region, including himself, were elected on the PPP.’s ticket, although Kasuri was a novice in the field of politics, and had no political background of any consequence-. In this view it is rather intriguing as to why in his crossexamination be denied the suggestion that m the initial stages of his contact with appellant Bhutto he virtually adored the latter.
His evidence would reveal that the hitherto cordial relations existing between Mr. Kasuri and appellant Bhutto took a turn in the opposite direction soon after the General Elections of 1970, as a result of which the Awami League of Sheikh Mujibur Rehman in East Pakistan and appellant Bhutto’s PPP in West Pakistan swept the polls with larger: majority. However, the parting point between Sheikh Mujibur Rehman and appellant Bhutto seems to have been reached when the former insisted on the implementation of what has come to be known in the political history of Pakistan, as his six-points programme to which Mr. Bhutto did not fully subscribe. This unfortunate difference of opinion between the two most popular leaders of the time started creating a gulf of misunderstanding between the people of East and West Pakistan with the result that Mr. Bhutto publicly announced ,the conditional boycott of the Session of the National Assembly scheduled to be held at Dacca.
It is in the evidence of Mr. Ahmad Raza Kasuri that he disagreed with the said policy of Mr. Bhutto, and started criticising him publicly. This attitude of Mr. Kasuri, seems to have made him unpopular with the general rank and file of the PPP, because it was thereafter that his political meetings and Press conferences were disturbed all over the country, and he was frequently subjected to physical assaults. In this respect reference may be made to the privilege motion (Exh. PW. 1/7), dated November 29, 1974, moved by him on the floor of the National Assembly of Pakistan, in which he has given the graphic details of the various attacks made on him by the rank and file of the PPP, because he had “been vigorously opposing the dictorial, fascist and anti-people policies of this regime from beginning”, as also that he had “opposed the recognition of Bangla Desh. I was one of the Parliamentarians who initiated the recent anti-Ahmadies agitation in the country. In short, I have opposed this regime both inside and outside the House, because I sincerely feel that Mr. Bhutto and Pakistan are not synonymous and cannot go together”. Recalling the recent murder of his father Nawab Muhammad Ahmad Khan, “as a result of the Government planned strategy to eliminate all those people who have the courage and fortitude to oppose this, “one man democracy in Pakistan”, he proceeded to give the details of 15 incidents in which he had been attacked between the period May, 1971 and November, 1974. The first attack was made on him on May 2, 1971, at Habib Mahal Cinema, Kasur, when Mr. Bhutto came to address the PPP workers there, resulting in injuries to score of people as well as to himself in which his arm was fractured. Of this incident a case was registered at the Kasur City Police Station. The second attack was made on him by the PPP workers in June, 1971 at the Karachi Railway Station in which again many people were injured. The third attack was made on him in April, 1971, in his house, during the night, by unknown persons (who had their faces muffled), but instead of him his brother Khizar Hayat Khan was caused more than 100 injuries, respecting which incident a case was registered at the Kasur City Police Station. The fourth attack was made on him in August, 1971, at Habib Hotel, Peshawar, when he was addressing a Press conference respecting which again a case was registered by him at the local Police Station. The fifth attack was made on him in October, 1971 during a Press conference at the house of a friend at Karachi, when the PPP workers ransacked the house. This matter also was reported by him at the Ferozabad Police Station, Karachi. The sixth attack was made on him at the Old University Campus, The Mall, Lahore, but the police present there refused to register a case. The seventh attack was made on him in January, 1972, by the PPP workers, and one MPA, at Kasur with firearms in which he received bullet injuries and his brother Khizar Hayat Khan also was injured. This matter was also reported at the local Police Station. The eighth attack was trade on him in April, 1972, when he was addressing a public meeting at Khudian. Of this incident also he laid information at the Khudian Police Station. The ninth attack was made on him in December, 1972, when he led a procession alongwith retired Air-Marshal Asghar Khan, on The Mall, Lahore, but the police did not arrest any of the assailants. The tenth attack was made on him in July, 1973, when he was addressing the members of the Vehari Bar Association. The eleventh attack was made on him during the month of Ramazan, 1973 in Gowalmandi, Lahore, where he had gone to attend an Iftar party, hosted by the workers of Tehrik-e-istaqlal. The twelfth attack was made on him in December, 1973, at Mirpur, Azad Kashmir, with firearms while he was addressing a huge public meeting. The thirteenth attack was made on him again in December, 1973, at Islamabad, but instead the FSF jeep which was meant to overrun him actually overrun another MNA, namely, Chaudhry Muhammad Iqbal, who later died. The fourteenth attack was made on him in January, 1974, when some unknown person fired at his house at Kasur. Of this incident also a report was made to the local administration, and the matter also discussed by him on the floor of the National Assembly of Pakistan, which forms part of the debates of January, 1974. Thereafter in June, 1974, on the floor of the National Assembly when appellant Bhutto, was addressing the House, the witness interrupted him at which Mr. Bhutto, pointing his finger at him, said “I have had enough of you. Absolute poison. I have had enough of this man. I will not tolerate your nuisance”. Soon thereafter, i.e. on August 24, 1974, he was fired upon from a blue coloured jeep with automatic weapons at Islamabad but somehow he escaped. And lastly, he was ambushed at the Roundabout of Shah Jamal, Shadman Colony, Lahore, between the night of November 10/11, 1974, and fired upon with automatic weapons, as a result of which his father was killed. In this connection he moved a privilege motion in the National Assembly of Pakistan and made an emotionally charged speech demanding that appellant Bhutto should resign and submit himself before the process of law, because he had mentioned his name in the F. I. R.
It would thus be seen that within the period of about three years, Kasuri had been attacked as many as 15 times at every place in the country (including in his own house) whenever he tried to address a Press conference, a public meeting or led a procession. It is true that during all that period he had been the most vocal critic of the person and the policies of Bhutto’s government, as his attitude is amply reflected in the various speeches made and the privilege motions moved by him on the floor of the National Assembly, but the question is whether for all his said predicaments, Mr. Bhutto alone can be said to have been responsible ? I am afraid the evidence on record is not susceptible to bear any such conclusion. On the contrary, the evidence would show that Ahmad Raza Kasuri, right from the days when he was a student, and expelled from the University “ Law College, Lahore, by the then Governor of West Pakistan, has been man of strong views, not inconsiderable courage and used to the employment of strong and provocative language in expressing his views. He violently opposed the confrontation of Mr. Bhutto with Sheikh Mujibu Rehman, as according to him the latter alone had the right to form the National Government, because the electorate of the country had given him the majority. But in the process perhaps the rank and file of the PP seems to have unfortunately resented his confrontation with appellant Bhutto, whose political star at that time was on the ascendancy, and who was held by the PPP workers in every high esteem. In order to silence his voice, therefore, it is not unlikely that the PPP workers took it upon themselves to teach him a lesson, and consequently attacked him at every place in the country at which he attempted to voice his views against the person or policies of appellant Bhutto.
It is also clear from his evidence, as well as from the privilege motion (Exh. PW. 1/7), dated November 29, 1974, moved by him on the floor of the National Assembly, that: (1) he was one of the Parliamentarians who had initiated the anti-Ahmadies movement in the country ; and (2) soon after the General Elections of 1970, he earned for himself in his home town Kasur, the enmity of Mr. Yaqub Maan, a prominent member of the PPP and MPA of the Punjab. It is in his own evidence that Yaqub Maan and his partymen had attacked him more than once with fire-arms and caused him bullet injuries. Furthermore, Yaqub Maan had thrown him a challenge through the newspapers, asking him to resign hi; seat as MNA or face the worst possible consequences. Now from this evidence of the witness, as well as from the documentary evidence produced by him on the record of the case, can it be said with any certainty that appellant Bhutto alone had the motive to assassinate him ? The legal position is well settled that the evidence of the prosecution, especially when it is wholly circumstantial, must be so construed as to eliminate the possibility of any reasonable doubt about the innocence of the accused. Now bearing this principle in mind, it would be evidently ridiculous to contend, less to believe that the fifteen attacks made on the witness during the course of about three years, in every part of the country, including the territory of Azad Kashmir, were engineered by appellant Bhutto. The fact that he was attacked at every place from Peshawar to Karachi, whenever he criticised appellant Bhutto or his policies, would rather show that it was the random work of the rank and file of the PPP, who seems to have become allergic to him because he had rebelled against the party and its Chairman. The broad day-light attack made on him by Mr. Yaqub Maan and his partymen at Kasur, as a result of which he suffered three bullet injuries, and the other attack made on him at his house during, the night by unknown persons, as a result of which, his brother Khizar Hayat suffered as many as hundred injuries, would seem to support the said conclusion. In point of fact, this is how the witness himself had understood the position, as in none of the F. I. Rs. lodged in the said cases nor indeed in the privilege motions moved by him in the National Assembly he accused appellant Bhutto or even voiced his suspicion against him. It should be significant to note that in the F. I. R. lodged by him in respect of the Islamabad incident of August 24, 1974, he again neither accused nor named appellant Bhutto. From this it would follow that if there was the slightest doubt or suspicion in his mind about the complicity of Mr. Bhutto in that plot, obviously he would have readily accused him, as he had already been subjected to about fourteen attacks by the PPP workers at various places in the country.
In his cross-examination, the witness has admitted that in regard to the two attacks made on him in the Habib Mahal Cinema, Kasur, and ‘a place called Khudian, counter cases were registered against him in one of which the Court had relased him on bail ; that he had written to appellant Bhutto letters Exhs. P-- W. 1/19-D and P. W. 1/20-D, but said he had done so only as a matter of expediency, in order to present A posture of reconciliation ;that he had remained a member and attended the meetings of Tehrik-i-Fikr-i-Quaid-e-Awam, an organization meant for propagating the political philosophy of appellant Bhutto up to April, 1977, but again said that this was in line with his policy of expediency ; that he had rejoined the PPP in April, 1976, only as a matter of expediency ; that for the General Elections held in 1977, he had applied for the grant of a PPP ticket to enable him to contest the elections for a seat to the National Assembly, but had done so as a matter of expediency ; and that his said application was turned down, and the ticket from his Constituency granted to Sardar Ahmad Ali with the result that he was ignored.
Now as regards his letter Exh. PW. 1/20-D, dated June 8, 1976, written to appellant Bhutto, the same commences with the words “I take this opportunity to express my deep gratitude for nominating me as a member of Pakistan Delegation that participated in this year’s “Spring Session” of Inter-Parliamentary Union held at Mexico City, Mexico”, and proceeds to say, amongst other things, “we found that your image as a `Scholar Statesman’ is emerging and getting wide acceptance”. It is interesting to note, however, that notwithstanding the admission made by him in the opening part of his letter, the witness denied in cross-examination to have been nominated for the said Spring Session of the Inter-Parliamentary Union by Mr. Bhutto held at Mexico City saying that he had been actually nominated by the Speaker of the National Assembly. Now this prevarication on the part of the witness is obviously frustrating, but understandable. His effort in the witness-box seems to have been to show that appellant Bhutto being his enemy would not nominate him as a member of the said Delegation, but unfortunately for him his letter Exh. PW. 1/20-D exposed design and clearly made him appear ridiculous. Seen in this context, the other assertions lade by him namely, that he had written to appellant Bhutto letters Exhs. PWs. 1/19-D and 1/20-D only as a matter of expediency; that he remained a member and attended the meetings of Tehrik-i-Fikr-i-Quaid-e-Awam until April, 1977, for the same reason ; that for the General Elections held in 1977, he had applied for the grant of a PPP ticket for similar reason cannot be believed as on the very face of them, they seem to be absurd. From the evidence brought on the record of the case, the witness appear to be highly sensitive in nature, is capable of taking strong stand on issues even at the risk of danger to his person and possesses not inconsiderable courage forcefully to express his views on any issue, to which he doe not subscribe, regardless of the consequences. It is, therefore, impossible to believe that if appellant Bhutto had anything to do with the murder of his father, or had engineered the various attacks made on him almost in every part of the country, he would reconcile with him, or fail to accused him m the F. I. Rs. lodged by him at the various Police Stations, or in the privilege motions moved by him in the National Assembly. It is clear to me that after having rebelled against the PPP, and having failed in his effort because no serious notice seems to have been taken of his antics by the Establishment, he recanted and started making efforts to regain the confidence of appellant Bhutto. The fact that he was nominated as a member of the Parliamentary Delegation to Mexico by appellant Bhutto should not suffice to negate his claim that he was his enemy. But the subsequent two letters Exhs. P.W. 1/19-D and P.W. 1/20-D written by him to appellant Bhutto would seem to portray an altogether different position. Enough has been said about his letters Exh. P.W. 1/20-D. dated June 8, 1976. But in the subsequent letter Exh. PW. 1/19-D, dated January 30, 1977, the witness addressed appellant Bhutto as “My dear Prime Minister” and proceeded to express himself thus :-----
“Earlier I have requested over half a dozen times to your M. S. for an interview with you, but to this date I have not received any reply from him. I wonder whether Major-General Imtiaz Ali ever made it known to you? I am taking this liberty to write to you and to request you personally to kindly grant me an interview at your earliest convenience. I have to discuss many matters, which concern the party and the Government.
You will be happy to know that I have gone back to Law profession as a whole time. Pray for my success and well-being.
I met Mr. Abdul Hafiz Peerzada on 25th of this month in Lahore and had a detailed talk with him. I hope he must have informed to you about that .
I trust this letter finds you and Begum Bhutto in best of health, hapiness, and prosperity.
With warm regards.
Yours sincerely,
Ahmad Raza Kasuri
Now a casual look at the said letter Would show : (1) that the witness stood on no formality with appellant Bhutto ; (2) that he claimed a share of his personal attention even in regard to his private affairs such as “You will be happy to know that I have gone back to Law profession as a whole time. Pray for my success and well-being” ; (3) that he had met Mr. Abdul Hafiz Peerzada at Lahore and had a detailed talk with him about which he hoped Mr. Peerzada had informed Mr. Bhutto ; and (4) that he requested for an interview with Mr. Bhutto saying “Earlier I have requested over half a dozen ‘times to your M. S. for an interview with you, but to this date 4 have not received any reply from him. I wonder whether Major-General Imtiaz Ali ever made it known to you?”. This AI being the tenor of his said letter, the question is as to under what compulsion he had written the same ? Lt is very well to say that he had written it as a matter of expediency. But this ipse dixit of the witness seems to be clearly absurd in view of the language employed by him in the said letter. It .is obvious to me that by writing the said letter, in which he complained that he had already asked for an interview for more than half a dozen times, the effort of the witness clearly was to curry favour with appellant Bhutto, in which respect he finally succeeded, because Mr. Bhutto noted on the margin of the letter “I Will see him when it is convenient. Please return this letter after you have noted my remarks”.
The evidence would show that Mr. Bhutto finally granted to the-witness an interview in March, 1976, and he rejoined the PPP in April, 1976. On the dissolution of the National Assembly-of Pakistan, on January 7, 1977, in view of the forthcoming General Elections, scheduled to be held in March, 1977, the witness again met appellant Bhutto ; thereafter he made an application for the grant of a PPP ticket to enable him to contest election for a seat to the National Assembly but the same was rejected and instead the ticket from hips Constituency was awarded to Sardar Ahmad Ali. Now if appellant Bhutto had anything to do with the murder of his father, surely the witness should have, declined to contest election on a PPP ticket, even if the same had been offered to him, muchless to have aspired for the same by making a formal application in that behalf. The type of person, which according to the evidence, he is, he should have rather exploited the opportunity offered him by the General Elections to expose appellant Bhutto not only for his alleged dictatorial designs, but also that he was responsible for the assassination of his father. This in my view ought to have been the only natural and honourable course open to the witness, more so when-during the period of about three years between May, 1971, and November, 1974, he had been subjected to about fourteen attacks by the PPP workers.
Notwithstanding this position, which emerges from the evidence of the witness, he seems to have maintained in the High Court, and the High Court has believed him, that by rejoining the PPP he was a helpless agent inasmuch as Saeed Ahmad (PW. 3) and his assistant late Abdul Hamid Bajwa both had pressurised him in that behalf saying that he was a marked man by appellant Bhutto, and so he should go back to the fold of the PPP in his own interest, as well as in the interest of his family. Saeed Ahmad has in his evidence supported the said claim of Mr. Ahmad Raza Kasuri mainly relying on documentary evidence in that behalf. Ignoring his oral evidence for the present, however, with which I would be dealing separately, it would be proper straightaway to proceed with the examination of the various documents produced by him on the record of the case. The first document in the series is Exh. PW. 3/2-C, and is dated June 3, 1975. This document, which is written by late Abdul Hamid Bajwa, and is addressed to Secretary to the Prime Minister, says that “Ahmad Raza Kasvri, MNA, had stated that he is out for a forward block, in TIP. In fact, he is thinking of forming an independent political party. He has discussed this topic with his close associates and will decide, of doing so, this evening”. The document seems to have come to the notice of appellant Bhutto on June 6, 1975, as it bears his initials without any comment. It is evident that the document in question is neither here nor there, except for the fact that it does reveal the interest taken by late Abdul Hamid Bajwa in respect of the political activities of Mr. Ahmad Raza Kasuri.
The next document in the series, which has been twice exhibited as Exh. PW. 3/2-E, and Exh. PW. 3/16-D, is dated July 29, 1975. The document in question was written by Said Ahmad Khan to Secretary to the Prime Minister intimating therein that;----
“Mr. Ahmad Raza Kasuri, MNA, has had number of meetings with me, the last one being at Rawalpindi on 28th July, 1975. He has realized that his future lies with the Pakistan People’s Party of which he claims to be a founder member. On the Qadiani issue he says that the attitude of Air Marshal Asghar Khan, has been lukewarm and that there may be a secret understanding between him and the head of the Qadiani community at Rabwah.
Mr. Ahmad Raza Kasuri has requested for an audience with the Prime Minister at his convenience.”
Now on document Exh. PW. 3/16-D, appears the endorsement of appellant Bhutto to the effect that “He must be kept on the rails, he must repent and he must crawl before he meets me. He has been a dirty dog. He has called me a mad man. He has gone to the extent of accusing me of killing his father. He is a lick. He is ungrateful. Let him stew in his juice for some time”, and bears his initials. However, since the said endorsement does not appear on document Exh. PW. 3/2-E, an objection was taken by the prosecution in the High Court that document Exh. PW. 3/16-D (produced on behalf of appellant Bhutto) was forged and so not admissible in evidence. The High Court has in para. 565 of its judgment agreed with the objection of the prosecution by holding that :-
“This document was exhibited subject to objection by the learned Special Public Persecutor because it was urged by the learned Defence Counsel that its original was not forthcoming. I agree with the arguments of the learned Special Public Prosecutor that since the conditions of section 65 of the Evidence Act for leading secondary evidence, have not been proved, this document is inadmissible in evidence. I also agree that the first endorsement is clearly a forgery. There is no indication that the first endorsement was addressed to or was required to be seen by anybody. It is not possible to reconcile it with the second endorsement. `Please file’.”
The evidence, however, shows that on October 15, 1977, an application was filed on behalf of appellant Bhutto in the High Court to the effect that the original of Exh. PW. 3/16-D and two other documents may be summoned. from the custody of the Government. On October 17, 1977, however, late Mr. M. Anwar, the learned Special Public Prosecutor, informed the Court that by the search carried out in the relevant quarters, the said documents were not traceable. After the said statement was made by Mr. M. Anwar, Exh. PW. 3116-D and the other two documents sought to be produced from the Government record were produced on the record of the case from the custody of appellant Bhutto to which, how ever, the said objection was taken by the prosecution. Now regardless of the question whether the said document was forged or not, with which I would deal subsequently, it is clear to me that by making a proper application for the production of the original thereof from the custody of the Government, and the statement made in the High Court by late Mr. M. Anwar that the said document was not traceable, a case had been clearly made out for the production of a copy of it under section 65 (c) of the Evidence Act. With respect, therefore, it is difficult to agree with the finding of the High Court that “since the conditions of section 65 of the Evidence Act for leading secondary evidence, have not been proved, this document is inadmissible in evidence”. As regards the finding that document Exh. PW. 3/16-D was forged, all that the High Court has said is “I also agree that the first endorsement is clearly a forgery. There is no indication that the first endorsement was addressed to or was required to be seen by anybody. It is not possible to reconcile it with the second endorsement. “Please file”. Mr. Yahya Bakhtiar, the learned counsel for appellant Bhutto has taken serious objection to this finding of the High Court. He argued that according to the invariable practice of appellant Bhutto, relating to the affairs of the PPP, a copy of every document used to be made and filed on the record of the Party in its Central Office at Rawalpindi. Therefore, a copy of Exh. PW. 3/16-D, which was one such document, was accordingly fled on the, record of the said Central Office and produced in evidence, only after late Mr. M. Anwar made a statement in the High Court that in spite of the search carried out in the relevant quarters, the original thereof could not be found. As to the other finding of the High Court, viz, that the first endorsement on Exh. P.W. 3/16-D was not meant to be seen by anybody and the same was forged, the learned counsel contended that the finding is incorrect. He argued that the said endorsement was not only meant to be the repository of the spontaneous and natural reaction of appellant Bhutto, to all the scurrilous attacks made on him by Ahmad Raza Kasuri, but the same was quite reconcilable with his second endorsement, namely, “Please file”, as the a latter endorsement was meant to convey to his Private Secretary the instructions that the document was to be filed at the proper place.
Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, however, supported the said finding of the High Court on an additional ground, saying, that the two endorsements appearing thereon were evidently made by using different inks and so the first endorsement was clearly forged. I am afraid, there is no force in the latter contention of the learned counsel. A casual look at the two endorsements in question would show that they were made in the same ink, although I agree that this fact by itself would be inconclusive. Be that as it may, by the scrutiny of the various documents on record, a clear and an unequivocal answer to the question under consideration can be readily found, and so I would presently proceed with the examination of the relevant documents.
The first relevant document, after Exh. P.W. 3/16-D, in which mention has been made of the fact that Mr. Ahmad Raza Kasuri wished to have an audience with appellant Bhutto, is Exh. P.W. 3/2-F, dated August 4, 1975. Now this document is a note written by late Abdul Hamid Bajwa to Secretary to the Prime Minister and says, among other things, that “While discussing about his having audience with the Prime Minister, Ahmad suggested to him that, in his interest, he should first prepare ground, for such a move. The ground, as suggested by Ahmad would be by issuing one or two statements, indicating A. M. (R) Asghar Khan’s attitude towards Ahmadis. Ahmad Raza Kasuri promised to think over it and have more discussions on this issue”. The fact, however, is that the said document does not seem to have been brought to the notice of appellant Bhutto, as it does not bear his signature/initials. Not only this but m the document in question, late Mr. Bajwa (as it is agreed that “Ahmad ‘ was his pseudonym) seems to have discouraged Mr. Kasuri from seeking an audience with appellant Bhutto, suggesting to him that he should first prepare the ground for such a move by issuing one or two statements indicating therein the attitude of A. M. (R) Asghar Khan towards Ahmadis, Now from this attitude of late Mr. Bajwa, it is clear to me that he was evidently conducting himself in accordance with the views of appellant Bhutto, namely, “He must be kept on the rails, he must repent and he must crawl before he meets me, etc.” already recorded by him on Exh. P.W. 3/16-D, on July 29, 1975. In this respect there can be no two opinions, for if appellant Bhutto had been really keen somehow to get Mr. Kasuri back into the fold of the PPP, and which indeed is the case of the prosecution, Mr. Bajwa ought to have readily jumped at the opportunity no sooner Mr. Kasuri expressed his desire for an audience with appellant Bhutto.
Exhibit P.W. 3/2-H, dated September 15, 1975, is a note submitted by Saeed Ahmad Khan to Secretary to the Prime Minister. In the note in question what Saeed Ahmad Khan has said is that in consequence of a message received by him through a link that Mr. Kasuri had expressed the desire to see him, he detained late Mr. Bajwa “to contact him and to remind him that he should prepare the ground to indicate his bonafides or rejoining the PPP. Mr. Ahmad Raza Kasuri told Bajwa that his very silence over the past few months ought to indicate his bona fides, particularly, when he seems to enjoy reputation of an emotional political being. He further said that he would be of immense use to the Chairman in the ensuing General Elections, in view of the differences amongst the top leaders’ of the PPP in the province of the Punjab . . . . . He also said that he could ask for an interview with the Prime Minister in his capacity as MNA directly. He has been told to do so”. This document again does not seem to have been brought to the notice of appellant Bhutto, as it neither bears his signature nor his initials. However, the one thing which has been made clear therein is that when Saeed Alimad Khan asked late Mr. Bajwa to contact Mr. Kasuri, he told him to remind Mr. Kasuri that he should first prepare the ground to indicate his bona fides for rejoining the PPP. Now by taking into consideration the said instructions given to late Mr. Bajwa by Saeed Ahmad Khan, would it not be reasonable to presume that he too was conducting himself in accordance with the views of appellant Bhutto, as expressed by him on the margin of Exh. P. W. 3/16-D, almost one-and-a-half month earlier? Inevitably the answer should be `yes’. If the task entrusted to Saeed Ahmad Khan by appellant Bhutto was somehow to get Mr. Kasuri back into the fold of the PPP, surely, it would have been unnecessary for him to instruct Mr. Bajwa to remind Mr. Kasuri that he should first prepare the ground to indicate his bona fides before rejoining the PPP. Similarly, it seems to me that when Mr. Kasuri is said to have expressed his intention that “he could ask for an interview with the Prime Minister in his capacity as MNA directly” he too was aware of the said views of appellant Bhutto, as otherwise, it would have been clearly unnecessary for him to have expressed himself in that manner.
In Exh. P.W. 3/2-1, dated September 29, 1975, which is another note written by Saeed Ahmad Khan to Secretary. to the Prime Minister, it is said, among other things, that “Mr. Ahmad Raza Kasuri, MNA, now claims to have sobered down and become stable. His rough edges have been chiseled out, his political horizon has become clearer and is a progressive being Mr. Ahmad Raza, has categorically stated that he wishes to return to the fold and would carry out Prime Minister’s directives and can be used in any way desired by the Prime Minister. He is quite conscious of the fact that his lone vote in the National Assembly for the Government could not be of much consideration, but as a demagogue and a Student Leader with a feudal bobby, he can be a common denominator, and can be utilized as such. He is still anxiously waiting for audience with the Prime Minister”. Now this document again does not seem to have been brought to the notice of appellant Bhutto, as it does not bear his signature,/initials, but someone in his Office made a note on the margin of it : `Keep it in Ahmad Raza Qasuri’s file”. It should, therefore, be obvious that the way in which the said note of Saeed Ahmad Khan was treated in the Office of appellant Bhutto; was in accordance with his views already expressed by hire on document Exh. P.W. 3/16-D, as otherwise why the same should not have been brought to his notice ?-especially when according to the prosecution, he was keen to get Mr. Kasuri back into the fold of the PPP. I am clearly of the view that the concerned officer in the Office of appellant Bhutto was aware of his said views, and ‘‘ consequently ordered that the said document be filed.
The next note in the series is Exh. VW. 3/2-J, dated 25-11-1975, written by late Mr. Bajwa to Saeed Ahmad Khan; who in turn forwarded it to Secretary to the Prime Minister. What has been said in the note in question is that, he (Mr. Bajwa) met with Mr. Kasuri “after the National Assembly session”. He enquired from him “as to what happened on Friday last. Ahmad Raza Kasuri said that the floor of the House was in his possession when some people, which he thought would be FSF fellows in mufti, pounced upon him. Raza Kasuri told theta that the Speaker had neither named him to remove from the House nor he had created any scene. Even then they did not listen to him and he was thrown out”. He further asked him “as to why did he beat the staff on duty. Ahmad Raza Kasuri said that he did not beat anybody, he only defended himself ---------Ahmad Raza Kasuri said he did feel that he is very much sobered now and wanted to cooperate with the Government, but he suspected that some third agency, which did not like these moves, “wanted to create gulf”. He, therefore, told him that “if he felt like that why was he not over, cautious and why did ha permit any such agency to take any advantage . . . . . . . . . . . Ahmad Raza Kasuri said that he may be given some guidance by the Prime Minister and he will act accordingly, but so far he has not been granted audience”. Now this note of late Mr. Bajwa was brought to the notice of appellant Bhutto on November 26, 1975; as it bears his initials. However, in spite of the request of Mr; Kasuri, for an audience, conveyed therein, appellant Bhutto seems to have, showed indifference in the matter without commenting upon the said request in one way or another. It should, therefore, be obvious that by his ‘said attitude, appellant Bhutto was conducting himself strictly in accordance with the views already expressed by him on the margin of document Exh. P. W. 3/16-D, about four months earlier.
The last note in the series its Exh. P. W. 3/18-D, dated December 5, 1975, written by Saeed Ahmad Khan to Secretary to the Prime Minister. Unlike his other notes, his said note commences ‘with the words “As per instructions,” and proceeds to mention that he met Sardar Izzat Hayat Khan, formerly of Tehrik-e-Istaqlal, on 4-1241975. He was most anxious that Mr. Ahmad Raza Kasuri, may be given an audience by the Prime Minister, as soon as possible. Ahmad Raza has already asked for an interview in writing, and both of them are at a loss to understand as to why this request is not being acceded to. They are of the view that some interested PPP leaders have been trying to stall this meeting for personal reasons lest Mr. Ahmad Raza Kasuri, on his rejoining the PPP, may find an important place; being a dedicated worker, full of enthusiasm and a good public speaker. ‘He assured him that Kasuri has sobered ‘down, his edges rounded off, and is keen to rejoin the Pakistan People’s Party together with his band of supporters and workers, mostly from the Tehrik-e-lstaqlal, and to regain the lost confidence of the Chairman. He is determined to rehabilitate himself and work as a close associate of the Prime Minister under whose guidance and support, he may, be able to substantially win back the confidence of the people in Punjab through redoubled and untiring efforts. Lastly, he told him that “Ahmad Raza kasuri is, being pestered by the opposition parties to join them and even Zahoor Butt, the T.I. P. Convener, in United Kingdom, has app cached him for rejoining the Tehrik, but he realizes that he has been uses as a guineapig in, the past by Air-Marshal Asghar Khan and others, and is not prepared to consider joining the band wagon of disgruntled, and frustrated lot, but again begs that he, may not be kept on tenter hooks any more but he brought to the fold of PPP without further delay, and assures of complete loyalty to the Chairman. The irritants created by vested interests at the move of Ahmad Raza joining the Party be kindly set aside, since the negotiations with him have now been carried on for the past six months, with no results so far”.
Now this note is self-evident. Sarder Izzat Hayat seems to have pleaded the case of Ahmad Raza Kasuri with zest and vigour. After assuring Saeed Ahmad Khan that Ahmad Raza Kasuri has sobered down and his edges rounded off, he is keen to rejoin the PPP to regain, the lost confidence of the Chairm4n,, in order to rehabilitate himself as also to work as a close associate of the Prime Minster, under whose guidance and support he may be able to sustantially win back the confidence of the people in Punjab through redoubled and untiring efforts, ‘ he pleads his case to the effect that Ahmad Raza Kasuri begs not to be kept on tenter hooks anymore, but be brought .to the fold of PPP without further delay. He assures the Chairman of his complete loyalty. This note was put up to appellant Bhutto on 6-12-1975, and he recorded on it the note. I would see Ahmad Raza Kasuri at Pindi. Please return the file after you have noted’. . Notwithstanding this endorsement, however, appellant Bhutto seems to have kept Mr. Kasuri waiting for an interview for another three months, as he finally saw him only in March, 1976.
Now this note submitted by Saeed Ahmad Khan would show that he had been instructed by appellant Bhutto to meet with Sardar Izzat Hayat Khan, as the note in question starts with the words “As per, instructions.” It is a fact, however, that in none of his other notes submitted by him to appellant Bhutto had he used the said words, and thus it would seem to render his claim doubtful, that the various meetings held by him and his assistant, namely, late Mr. Bajwa with Mr. Ahmad Raza Kasuri were held in pursuance of the instructions of appellant Bhutto.
Be that as it may, the tenor of the note in question and the way in which Sardar Izzat Hayat Khan came to plead the case of Mr. Ahmad Raza Kasuri, for the grant of an interview to him, ought to leave no doubt in one’s mind that it was Mr. Kasuri who was anxious to reconcile hi differences with appellant Bhutto and not the latter who consistently seem to have spurned his advances.
Now I have dealt with the said documents on the assumption that there is no objection to their being admissible in evidence. Saeed Ahmad Khan was the Chief Security Officer to appellant Bhutto, whereas Abdul Hamid Bajwa was his assistant. There is no satisfactory evidence on record, however, to show the nature and scope of the duties of Saeed Ahmad Khan. But according to his own evidence orders were issued in the end of 1972, to the Intelligence Bureau, Inter-Services intelligence Directorate, and to the concerned branches operating in all the provinces to the, effect that Daily. Intelligence Reports should be supplied to him on the basis of which he was ‘required to submit to appellant Bhutto his own assessment. Now this claim of Saeed Ahmad Khan , seems to be true because the same is supported by the periodical notes submitted by him and his Assistant late Mr. Bajwa to Secretary to the Prime Minister, conveying therein the substance of their personal dialogue with Mr. Ahmad Raza Kasuri. The fact that Mr. Kasuri himself has corroborated the said evidence of Saeed Ahmad Khan should inevitably attract to the contents of the said documents the provisions of section 32 of the. Evidence Act (in the case of late Mr. Bajwa) and section 114 thereof (in the case of Saeed Ahmad Khan) which in relevant parts respectively read as under :-------
“32. Cases in which statement of relevant facts by person who is dead or cannot be found, etc. is relevant.-When it relates to cause of death ; or is made in course of business ;------”.
“114. . Court may presume existence of certain facts.--The Court may presume the’ existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts -of the particular case”.
I am, therefore, of the view that the High Court was right in relying on the said documents, as also on documents Exhs. P.W. 3/2-K and P. W. 312-Q (both of which were the reports submitted by late Mr. Bajwa to Secretary to the Prime Minister, and seem to contain what he had actually heard or observed personally), but with respect, the High Court was clearly in error to rely on documents Exhs. P.W. 3/2-N and P.W. 3/2-O, which were secret reports and consequently inadmissible in evidence, as the informant of them or the source thereof was not produced in evidence : See Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M. N. A., former President of Defunct National Awami Party (PLD1976SC57).
The High Court also has relied on a number of other documents which are either in the nature of source reports or else reports submitted by Saeed Ahmad Khan and his assistant late Mr. Bajwa to Secretary to the Prime Minister. As regards the source reports, they we-e clearly inadmissible in evidence. but the rest of the reports in which Saeea Ahmad Khan and his assistant late Mr. Bajwa had reported the substance of their dialogues with Mr. Kasuri would be free from any such objection. Notwithstanding this position, however, I have decided not to refer to the said reports in any detail because all that is contained therein would simply show that Mr. Kasuri was kept under surveillance, but this would in no way support the prosecution. Now if the case of the prosecution is accepted that the basic object for which appellant Bhutto had commissioned Saeed Ahmad Khan and his assistant late Mr. Bajwa to brainwash Mr. Kasuri with a view to making him rejoin the PPP, then the conduct of appellant Bhutto seems clearly to be inconsistent with the said hypothesis: on the one hand Saeed Ahmad Khan and late Mr. Bajwa both seem to have diligently worked on Mr. Kasuri in that behalf but on the: other appellant Bhutto consistently spurned their suggestion to the effect that he should grant to Mr. Kasuri an interview. Enough has already been said in this connection. But this much may again be said that if the object of appellant Bhutto was to get Mr. Kasuri back into his party, surely he ought to have welcomed the very first suggestion made to him by Saeed Ahmad Khan in his note Exh. P.W. 3/16-D to the effect that Mr. Kasuri should be granted an interview.
The High Court has no doubt tin the basis of the said documents as well as the evidence of P.Ws. held against appellant Bhutto observing that he alone had the motive to assassinate Ahmad Raza Kasuri. But with profound respect, the said finding cannot be sustained. By going through the judgment of the High Court with care, it would be seen that the said evidence of the prosecution was accepted as a matter of course, without subjecting it to critical analysis, in line with the well-established legal principles relating to the safe administration of criminal justice: namely, that all circumstantial evidence must be so construed as to be incompatible with the innocence of the accused or with any other reasonable hypothesis : See Mst. Sairan alias Saleema v. The State (P L D 19705 C 56) I am, therefore, of the humble opinion that the High Court does not seem to have with respect scrutinised the contents of documents Exhs. P. W. 3/16-D; P. W. 3/2-H, P. W. 3/2-I, P. W. 3/2-J and P. W. 3/18-D, with that amount of care which in the peculiar circumstances of the case ought to have been given to them. From the bulk of documents only these five documents appear to be relevant, because in each one of them a suggestion was made by Saeed Ahmad Khan, or his assistant late Mr. Bajwa that appellant Bhutto should grant to Mr. Kasuri an interview. The very first document in the series is Exh. P. W. 3/16-D, dated 29-7-19,75 (also exhibited as P. W. 3/2-E), on the margin of which, Mr. Bhutto, making full use of the Billingsgate’s language, made the endorsement : “he must be kept on the rails, etc.”, and spurned the said suggestion. Now this note being the very first in the series, it is hardly unnatural that in view of the virulent attacks made on his person and policies by Mr. Kasuri for quite a long time, he (Mr. Bhutto) unburdened himself of the load of disgust which he evidently carried against the latter by his said spontaneous and natural reaction. However, he does not seem to have shut the door in the face of Mr. Kasuri for all times to come, as he made it clear therein that “Before he meets me, he must be kept on the rails, he must repent and he must crawl”. In this respect he seems to have shown consistency because the four subsequent requests conveyed to him for the grant of an interview to Mr. Kasuri, in documents Exhs. P.W. 3/2-H, P.W. 3/2-1, P.W. 3/2-J and P.W. 3/18-D, he showed complete indifference with a view evidently to make Mr. Kasuri “repent”, and “stew in his own juice for sometime”. It is, therefore, clear to me that the endorsement appearing on Exh. P.W. 3/16-D was entirely genuine, as the same is corroborated in ample measure beyond any reasonable doubt not only by the said four documents, but also by the consistent conduct shown in that behalf by appellant, Bhutto.
This conclusion would also show that the application made in the High Court on behalf of appellant Bhutto on 15-10-1977 with a view to seeking the production of the original of Exh. P.W. 3/16-D, and two other documents, was entirely bona fide. It is true that after late Mr. M. Anwar informed the High Court that the original of the said document was not available, a photo copy of it was produced on the record of the case by appellant Bhutto from his own custody, and the same exhibited as P.W. 3/16-D: To this conduct of appellant Bhutto, the learned Special
Public Prosecutor raised a somewhat faint objection during the arguments saying that the former very well knew that the original document was, not available in the Prime Minister’s Secretariat, implying; thereby that-he had removed the same ,on. or about July 5, 1977, when he- was taken in custody by the Armed` Forces of Pakistan.
This accusation was denied by the learned counsel for it appellant Bhutto and also by ‘the latter himself when he appeared, in this Court and argued his case on certain specified features. Regardless of the truth of the matter, however, respecting which I am not called upon to give any finding, this much is clear to me that since the original of Exh F.-W. 3/16-D was said to be not available, a photo copy of it (which according tv Saeed Ahmad Khan bore his signatures), became admissible in evidence under section 65 (c) of the Evidence Act, and consequently the same should hive been exhibited without any objection.
Now in the Synopsis and Analysis of Evidence’, supplied by the learned Special Public Prosecutor, reliance also has been ‘made on the evidence of Masood Mahmood (P. W. - 2), on documents EXhs. P. W. 2/1, P: W. 2/Z, P. W. 2/2, P. W. 2/8, P. W. .2/9 and P. W. 2/10, as also on the evidence of Abdur Rashid (P. W. 22) who produced in his evidence the reports of the National Assembly of Pakistan, and the various privilege mofions moved therein by Mr. Ahmad Raza Kasuri which appear, on the record. of the case as Exhs. P. W. 22/1 to P. W. 22/9. In the context of the present discussion, however, I ; have decided to .ignore the evidence of Masood Mahmood and Exh. P. W. 2/9 and Exh; P. W. 2/10 which are his T. A. Bills, as’ I would be dealing with. his evidence in a great detail soon after the close of the present discussion on ihctive. Similarly, Exhs. P. W. 22/1 to P.W. `22/9, which contain the speeches of Ahmad Raza Kasuri, made in the National Assembly, need not detain us as the same subject has already been covered substantially. But as regards the other documents, naively, Exhs. P. W. 2/1, P. W. 2/Z, P. W 2/2.and P. W. 2/8, it would be necessary to deal with them at this stage. And I proceed to do so presently.
Exhs. P. W. 2/1, dated September 14, 1974, and P. W. 2/Z, dad September 18, 1974, both are Intelligence Reports submitted by P.W: 1VL.R. Welch, Director FSF, Quetta, to P.W. Masood Mahmood as Director=General of the said Force. The contents of these reports have been held, by the Highl Court against appellant Bhutto to which, however, serious objection has been taken by the learned defence counsel. He argued : (1) that the reports in question being in the nature of source reports were clearly inadmissible ‘in evidence : and (2) that the High Court has misconstrued them to the’ grea prejudice of the appellant. There seems to be force in the said contention. Apart from the fact that by their very tenor, these documents seem,, t be of .the type which are usually sent in routine (as-confirmed by Mr. Welch himself) by the various Intelligence Agencies to the Heads of, various organizations including the Chief Executive, Mr. M. R. Welch has ‘not said in his evidence that the information conveyed therein was based on his own knowledge nor indeed did the prosecution produce in Court the informant-or the source responsible for collecting the said information. In this view of the matter, the reports in question were inadmissible in evidence and so they could not have been treated as evidence in the case See Islamic Republic of Pakistan v. A bdul Wali Khan.
Be that as it may, the said reports would seem “to be innocuous: A perusal of them would shorn that it. was - not Mr. Ahmad Raza Kasuri alone, as observed by the High Court, whose activities at Quetta were kept under surveillance by the local FSF but the entire party of Tehrik-e-Istaqtal headed by its Chairman, Air-Marshal Asg’har; Khan was similarly treated. In Exh. P. W: 2/-1, which is a composite report about the activities of some of .the important members of the party of Air - Marshal Asghar Khan, it is said, amongst other things, that in a tea party -held in Cafe China, Mr. Ahmad Raza Kasuri, Doctor Ishtiaq Hussain Qureshi and Air-Marshal Asghar Khan addressed the gathering of about two hundred guests, and in their respective’ speeches criticised the Government of appellant Butto in their own fashion except for Mr. Ahmad Raza Kasun, of course; who bitterly attacked ‘66 person and policies of appellant Bhutto in his usual style; saying that` his’ Government was oppressing the people of Baluchistan ; that he vvas splitting ilp the country; that he was using the FSF to lath-i-charge and sh8bt the people ; that women had been disgraced by him and the Army had been used against the people., In so far ,as Exh. P. W. 2/Z is concerned, it again relates to the activities and movements of Mr. Ahmad Raza Kasuri, Mr. Feroz Islam, Air-Marshal Asghar Khan, Muhammad Saeed, Mahmood Ali Kasuri and. Mr. A. B Awan to the effect that whereas Mr. Kasuri and Mr. Feroz Islam suddenly left Quetta by ‘a PIA Flight at 11-30 a. m. on September 16, ..1974, for Lahore, the rest of the gentlemen left by another Flight of PIA, for Rawalpindi at 12-15 hours on September 17, 1974. Throughout their stay at Quetta, the party was protected by ten selected man provided by Mr. Khudai Noor, a local leader of Tehrik-e-Istaqla’l, as also that the time of their movements were not disclosed and they spelt “little or no time in the Hotel rooms reserved for them. The Police also kept the party under surveillance
Special ‘Branch, Military” Ihtelligenee and the Intelligence Bureau, and that its members were followed by the said agencies when they traveled to Kuchlaq and Pishin. Relying on the contents of the said two documents, especially those of Exh. P.W. 2/Z, the High Court has held that since the movements and activities of Mr. Kasuri had been kept under a close watch by the men detailed by Mr. Welch, including, the fact whether he slept in the room reserv6d for him in the Imdad Hotel or not, the evidence of Masood Mahmoad was believable that on the instructions given to him by appellant Bhutto to assassinate Ahmad, Raza Kasuri at Quetta, he had entrusted the execution of _ the said assignment to Mr. Welch. With profound respect to the High” Court, however, proper notice does not seem to have been taken by it of the Contents of the said documents. In reaching the conclusion that the movements’ .of Mr. Ahmad Raza Kasuri alone had been kept under strict surveillance by the men of Mr. Welch, the High Court specially relied on a passage appearing in Exh. P. W..,2/1 to the effect : “He is however, not residing in the reserved room”, not realising that in Exh. P. W. 2/Z,- which is”separated by an interval ‘of only four days from Exh. P. W. 2/1, a similar information was conveyed. about the other members of the party headed by Air-Marshal Asghar Khan that “The time of their movements were not disclosed and they spent little or no time in the hotel rooms reserved for them”. Had the High Court taken notice of the said passage, appearing. in Exh. P. W. 2/Z, surely its fidding ought to have been different.
This leaves’us with two other, documents, namely, Exh. P.W. 2/2, dated 25-9-1974 and Exh. P. W. 2/3 dated 19-9-1974..Exh. P. W. 2/2 is a letter written by Mian Muhammad Abbas to Mr. Welch, inviting his, attention to the Intelligence Report (Exh. P. W. 2/1), submitted by him to P. W. MaSQDd Mahmood, and questioned him “If Ahmad Raza Kasuri did not stay at the Imdad Hotel which was reserved for him, where else did he stay during his sojourn at Quetta ?” On receipt of the said letter, Mr. Welch seems to have slept over the matter for almost two months, as he replied the same (vide Exh: P.W. 2/3) only on November 17, 1974, saying “The gentleman in question had reserved a-particular room in. the Imdad Hotel but seldom stayed in his reserved room during the night. He occupied some other room reserved for members of the Party in the Hotel”. It should, therefore, be obvious that the manner in which Mr. Welch treated the said letter written to him by Mian Muhammad Abbas, and the complete indifference shown by the latter in that respect, there existed no plan to assassinate Mr. Ahmad Raza Kasuri at Quetta. It is true that P. Ws. Masood Mahmood and Mr. Welch both seem to have supported the case of the prosecution in their evidence in the High Court. But their evidence is clearly inconsistent with the said documentary evidence upon the plain language of which, however, they have attempted to put a sinister interpretation which it cannot even remotely bear.
On the contrary, due to the sustained hostility shown by him against the person and the Government of appellant Bhutto, during the last three years, it seems to me to have been entirely natural for the Government to keep a watch on the activities of Mr. Ahmad Raza Kasuri during his stay at Quetta, as according to Masood Mahmood himself the Province of Baluchistan was then in a state of insurgency. By the type of speech made by him at Cafe China, Quetta, Ahmad Raza Kasuri seems to have confirmed the apprehension of the Government, as the object of his said speech clearly was to incite the people, as also to create in the minds of the people and the students of Baluchistan hatred against the Government. This to my mind is one way in which the said correspondence exchanged between Mr. Welch on the one hand, and P.W. Masood Mahmood and Mian Muhammad Abbas on the other, can be construed and when so construed, it can as well be explained on the hypothesis that the object to keep a watch on his activities at Quetta was meant to prevent him from getting in touch with the insurgents or to create a law and order situation for the Government.
It is well-settled that if the evidence in a case is satisfactory, convincing and inspiring, the existence or proof of the motive would not be necessary. However, if the evidence is circumstantial only, then the question of motive becomes important because in that case the guilt of an accused is not proved by the evidence of witnesses who saw the crime, but only inferentially from the circumstances of the case N. D. Basu has in the Law of his Evidence (Fourth Edition), 1950, at page 129, referred to quite a few leading cases and said “If it is clear and certain that a crime has been committed, it is not an essential part of the Public Prosecutor’s case to prove that there was a motive for the crime. If he can prove the case without any motive, he is entitled to a verdict. But when the evidence is circumstantial only, and the guilt of the prisoner is only inferential land is not proved as a matter of fact by the evidence of witnesses who saw the crime, then the question of motive becomes of vital importance to the prosecution. If motive is displaced, or even made reasonably doubtful, it is enormously in favour of the prisoner. Similarly, where a murder is charged and the evidence is wholly circumstantial, then it is peculiarly proper to look at the motive. And in all cases you will naturally seek for the motive. And where the proof is circumstantial, and there be doubt about the circumstances, then it becomes most important to examine into the motive”.
Now in the present case all the evidence in regard to the motive is not only circumstantial but the main stay of the case of the prosecution seems to depend on the evidence of P.W. Masood Mahmood, who is a self-confessed criminal ; but ‘in order to save his own `precious’ skin, volunteered to become an approver and succeeded in that behalf. It. is his own case that appellant Bhutto was his enemy ; that attempts had been made on his life at the behest of appellant Bhutto by getting his food poisoned on a number of occasions ; that attempts also were mode by him to get his children kidnapped from the Aitchison College, Lahore ; and that he had entered into a conspiracy with him to assassinate Ahmad Raza Kasuri under compulsion and duress, as he and Mr. Vaqar Ahmad both had made him realize that his job was at their mercy to lose which, however, he could not afford as his children were small, his wife was suffering from Chronic Asthema ; and that he owed money to the Banks as well as the Government for the construction of the only house which he had made. While I would be dealing with his evidence, soon after the close of the present discussion, it would suffice to say for the present that the type of witness he is, as instead of resigning his job or else getting himself retired honourably, as he had already completed the required period of service of 25 years, he preferred to succumb to the alleged design of appellant Bhutto with a view to assassinating Mr. Ahmad Raza Kasuri whose late father Nawab Muhammad Ahmad Khan, according to him, was the close friend of his own father. Perhaps it was because of this realization that this Court in the case of Abdul Qadir v. The State (P L D 1956 S C (Pak.) 407) made the following observations in regard to the evidence of motive in a case in which the prosecution had relied on the evidence of an approver :---
“It may be taken as proved that both the approvers were responsible for the murder and that neither of them had any special reason falsely to accuse the appellant, but we cannot accept the finding of the High Court that neither of them had any motive of his own to kill the deceased. It is true that the appellant has not in his defence suggested any motive on the part of either of these accomplices to kill the deceased, but this by itself is an inconclusive circumstance and does not establish that in fact neither of them had any such motive. Motive is a factor which is peculiarly within the knowledge of the actor and a man’s motive in doing a thing may not be known to his most intimate friends just as the prosecution may not know the accused’s motive for a crime. All that can be said on the strength of the record of this case is that the appellant failed to prove or suggest that either of the accomplices had any reason to get rid of the deceased but the appellant’s ignorance of any such motive does not exclude the possibility of a motive having existed though unknown to the appellant. This circumstance, therefore, does not have any material corroborative value.”
The evidence in this case would show that appellant Bhutto not only denied that he had any motive to assassinate Mr. Ahmad Raza Kasuri, but Mr. Kasuri and Mr. Masood Mahmood both were extensively cross examined on his behalf to show that there existed quite a few other possible motives due to which Mr. Kasuri was first attacked at Islamabad and later at Lahore by unknown persons. From the analysis of the evidence on record, this latter possibility has been clearly established. But with respect, the High Court seems td have believed the prosecution evidence as a matter of course, without subjecting it to critical analysis with a view to excluding every other reasonable hypothesis compatible,) with the innocence of appellant Bhutto.
The High Court also has relied on the evidence of P.W. Saeed Ahmad Khan is support of the prosecution case, namely,-(1) motive ; and (2) the `subsequent’ conduct of appellant Bhutto. His evidence on motive, to which reference has been made in paras. 462 and 463 of the High Court’s judgment, is that in the month of December, 1973, on the orders of appellant Bhutto, he opened a file in respect of Mr: Ahmad Raza Kasuri ; that thereafter Mr. Kasuri was kept under strict surveillance, his movements were checked and his telephone was tapped by the Intelligence Bureau. Leaving his evidence in respect of the `subsequent’ conduct of appellant Bhutto, to be discussed at the proper stage, it seem to me that his evidence in respect of the motive is not only untrue but is entirely ambivalent in nature, and as such explainable on the basis of another reasonable hypothesis. It is his evidence that in accordance with the chart of duties laid down for him by the Cabinet Secretary, he was” obliged to carry out such assignments as were given tome from time to time by the Prime Minister. 1 had, therefore, only a very limited role to play”. However, the answers given by him in cross-examination would seem to reveal that as Chief Security Officer to appellant Bhutto he had taken upon himself the role of Major Dolno, with the result that he started interfering in places and situations which were evidently outside the scope of his authority. He admitted that he had submitted to appellant Bhutto a report on the activities of the then Minister of Interior, Khan Abduct Qayum Khan, but Bhutto sent the same to the former and thus compromised his position. Similarly in letter Exh. P.W. 3/15-D, written by him to appellant Bhutto, on October 6, 1972, he confessed to another lapse saying therein, amongst other things, “I am sure, you will kindly appreciate that I have been working single-handedly, round the clock, and I have mentioned your august name at times to elicit information required to produce meaningful results in quick time. To err is human and if I have inadvertently been indiscreet. and have misinterpreted you, you’ have every right to tear me to shreds on your own, but not, Sir, before your two Intelligence Chiefs, who would certainly not like to see me near you professionally, and otherwise, because 1 have wittingly or unwittingly entered their protested domain, and treaded their toes. As it is, they have started giving me a cold-shoulder ............I promise you, Sir, with all emphasis at my command that I can lay down my life for you, but I only need a little encouragement from you and a word of cheer, in return. I certainly need your guidance at every step. I again apologize profoundly for any lapse on my part and can assure you that I will be careful in future and will not give you a chance for annoyance”.
From this conduct of Saeed Ahmad Khan, it is clear tome that he was in the habit of throwing his weight around with a view to showing his importance, as also, to use his own words, appearing in Exh. P.W. 3/15-AD, “to elicit information required to produce meaningful results in quick time”. It is, therefore, conceivable that he had opened the dialogue with Mr. Ahmad Raza Kasuri on his own initiative to show “meaningful results” in order to justify the importance of his position. The detailed discussion of the various notes written by him, and his assistant late Mr. Bajwa, to Secretary to appellant Bhutto, would not only support his conclusion, but the contents thereof being clearly inconsistent with his evidence would make any reliance on his word uncalled for, as by the said documents, he has been clearly belied. I am, therefore of the humble view that if the High Court had, and I say so with respect, scrutinised his evidence, in the light of the said various notes, there ought to have been no difficulty to disbelieve him, as his evidence from the dock was wholly incompatible with the contents of the said’ documents.
Finally, the question of motive may as well be looked at from another angle. Assuming for the sake of argument that appellant Bhutto, in order to put an end to the biting criticism of Mr. Ahmad Raza Kasuri against him, had commissioned Mr. Saeed Ahmad Khan and his assistant late Mr. Bajwa to brain-wash Mr. Kasuri with a view to making him rejoin the PPP, even then his said conduct could be explained on the basis of more than one reasonable hypothesis. The evidence on record, which has already been discussed in great detail, would show that Mr. Ahmad Raza Kasuri who was once a political protege of appellant Bhutto, rebelled against him due to the unfortunate difference of opinion between appellant Bhutto on the one hand and late Sheikh Mujibur Rehman of the then Province of East Pakistan on the other, with the result that Mr. Kasuri started bitterly attacking his person and policies at every available opportunity. Would it not be reasonable to presume, therefore, that an articulate politician, which he undoubtedly was, appellant Bhutto ought to have seen to it that Mr. Kasuri should rejoin the PPP ? If one of the basic rules in politics ought to be to win the maximum possible support of the electorate, then, to that end, which politician would not employ suitable contrivances, strategies and tactics in any society in which governments are formed and removed by the will of the people ? And again which politician would not like to keep his public image un-stultified, or be spared the unmitigated criticism of his person and policies ? If these be the norms of politics, surely no sinister construction ought to have been placed upon the said conduct of appellant Bhutto, because his object could as well be to put an end to the virulent attacks which he used to make against his person as well as policies.
Mr. Yahya Bakhtiar, the learned counsel for appellant Bhutto also relied : (1) on paragraph 15 of the judgment of Shafi-ur-Rehman, J. of the Lahore High Court, delivered by him as an Inquiry Tribunal in connection with the murder of late Nawab Muhammad Ahmad Khan (and which was brought on the record of the case in this Court as Exh. S.C. l) ; and (2) on the alleged 161, Cr. P. C., statement of Mr. Ahmad Raza Kasuri (Exh. P. W. 23/1) recorded by D.S.P., Agha Safdar in connection with the attack made on him at Islamabad on August 24, 1974. He argued that in these two documents, Mr. Ahmad Raza Kasuri not only did not mention the name of appellant Bhutto but he clearly put the blame on many other quarters for the assassination of his father. I am afraid, I do not incline to consider this contention; firstly, because the said judgment of the Tribunal is inadmissible in evidence in these proceedings ; and secondly, because the said 161, Cr. P. C. statement of Mr. Ahmad Raza Kasuri has not been proved according to the requirement of the Evidence Act. It is true that a proper application was filed on behalf of appellant Bhutto in the High Court to the effect that Agha Safdar should be called in evidence to prove the said document but the said application was rejected for the reasons into the propriety of which, it would be unnecessary to go as by an order of this Court also it has been decided not to summon any witness nor indeed to take additional evidence.
Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, however, contended that in order properly to appreciate the evidence in this case the Court should keep in view the social realities of the time when late Nawab Muhammad Ahmad Khan was assassinated. He argued that according to the evidence in this case appellant Bhutto alone had the motive to assassinate Ahmad Raza. Kasuri, as none of the other appellants had any enmity with him nor indeed with appellant Bhutto; that no suggestion was made to P. W. Masood Mahmood in his cress-examination to the effect that he had any motive of his own against Mr. Kasuri; that P. W. Masood Mahmood was allowed to continue as Director-General, FSF, until July 5, 1977 (when he was taken in custody by the Martial Law Authorities) and yet no effort was made by the then Government of appellant Bhutto to find out if he had any motive against Mr. Kasuri ; that during appellant Bhutto’s Government, many political murders had taken place but-no one was brought to book for those crimes, much less punished ; that the crime empties in this case were not sealed by the Investigating Officer but surprisingly he had sealed the F.I.R. of the occurrence ; that the empties in question were not sent to the Fire-Arms Expert until August 23, 1974 ; that according to the Investigating Officer, Malik Muhammad Waris, the crime empties were taken from him by late Sheikh Abdul Ahad who took them to the house of the Inspector-General of Police, Punjab, and finally retained them only on August 23, 1974 ; that the investigation in the case came to a grinding halt within 24 hours of the murder of Nawab Muhammad Ahmad Khan ; and that according to the judgment of Shafi-ur-Rehman, J. of the Lahore High Court, the investigation m this case had been improperly conducted, the motive for the two incidents of Islamabad and Lahore was the same as also that the motive was political ; and that if the suggestion of the defence is accepted that Mr. Masood Mahmood could have a motive of his own, it would be tantamount to lighten his burden as in that case h4lf of the case of the prosecution would stand proved. From this, the learned counsel wished the Court to hold that the prosecution has succeeded to prove that appellant Bhutto alone had the motive t6 assassinate Mr. Ahmad Raza Kasuri.
I am afraid, there is no force in this contention. Frankly, I was not able to understand him when he said that for the proper appreciation of the evidence in this case the social realities of the time, in which late Nawab Muhammad Ahmad Khan was assassinated, should be kept in view, as this expression does not find any place in the Evidence Act. Enough has been said in the earlier part of this judgment to show that even the high probabilities of a case cannot be canvassed against an accused, and that in accordance with the requirement of section 3 of the Evidence Act, it is the burden of the prosecution to prove its case against an accused beyond any reasonable doubt.
Be that as it may, the learned counsel has not been right to contend that even if the suggestion of the defence is accepted, that Mr. Masood Mahmood also could have a motive of his own to assassinate Mr. Ahmad Raza Kasuri, then half of the prosecution raise would stand proved. This question was considered by this Court in Abdul Qadir v. The State and it was held therein, amongst other things, that “All that can be said on the strength of the record of this case is that the appellant failed to prove or suggest that either of the accomplices had any reason to get rid of the deceased but the appellant’s ignorance of any such motive does not exclude the possibility of a motive having existed though unknown to the appellant”. As regards the rest of the points urged by him, they evidently relate to the alleged `subsequent’ conduct of appellant Bhutto, but in view of the peculiar facts of this case reliance on them seems to be misconceived. It is true that according to the evidence of P.Ws. Abeul Wakil Khan, D.I.-G. Police, Lahore Range, Muhammad Asghar Khan, S.S.P., Lahore, and Malik Muhammad Waris, the Investigating Officer in this case, all the said things, of which the learned counsel has complained, had taken place with a view to diverting the course of investigation into the wrong channels. But all the three of them have put the blame mainly on Saeed Ahmad Khan. Enough has already been said about the evidence of Saeed Ahmad Khan to show that he was a busy body and used to poke his nose in every thing which even remotely concerned appellant Bhutto. Upon the analysts of his said evidence, I have disbelieved him, for except for his own evidence to the effect that all the said things had been done by him on the order given to him by appellant Bhutto, there is no evidence on record to support him, nor indeed does his evidence find any corroboration from an independent source.
The learned counsel, however, argued that P. W. Saeed Ahmad Khan was an independent witness, therefore, there would be no need to seek the corroboration of his evidence. I am afraid, there is no force in this contention. Apart from the fact that I have already dealt with some of his evidence (and would be dealing with the rest of it at the proper stage) to show that he was not a truthful witness, he seems to me to be an accomplice (to the discussion of which topic, however, I would be adverting subsequently) and so in the absence of any corroboration of his evidence, it would be dangerous to believe him--especially when by the examination of his relevant evidence I have already held that he used to poke his nose in every affair which even remotely concerned appellant Bhutto, only to show the importance of his own office. .
The learned counsel nevertheless relied on paras. 491-539 of the High Court’s judgment to show that from the bulk of oral and documentary evidence discussed therein it has been amply proved that appellant Bhutto alone had the motive to assassinate Mr. Ahmad Raza Kasuri. The perusal of the said paras. would show that ail the evidence discussed therein relate to the alleged `subsequent’ conduct of appellant Bhutto and the High Court, believing it to be true, has held the same against him. Now the said evidence partly consists of the testimony of P.Ws. Abdul Wakil Khan, D.I.-G. Police, Lahore Range, Muhammad Asghar Khan, S.S.P., Lahore, and Malik Muhammad Waris, the Investigating Officer which has already been dealt with, whereas the rest of the evidence consists of the alleged part played by late Mr. Bajwa with a view to diverting the course of the investigation into wrong channels ; the various notes written by Mr. Bajwa and Mr. Saeed Ahmad Khan to Secretary to the Prime Minister, and the various privilege motions moved by Mr. Ahmad Raza Kasuri in the National Assembly. Enough has been said by me respect of the privilege motions moved by Mr. Kasuri in the National Assembly. But what would seem to be necessary to deal with here is Exh. P. W. 3/2-A, which is a note of late Abdul Ahad, D.S.P., written to late Mr. Bajwa forwarding therewith a copy of the F.I.R. relating to the Lahore occurrence ; Exh. P. W. 3/2-A/l, which is a note recorded by Mr. Bajwa on the said document observing “What prevented them to register case immediately it was known that attempt to murder was made. This statement would have formed part of the case diary in that case and not in the F.I.R.” Exh. P.W. 3/2-B, a note written by Saeed Ahmad Khan to Secretary to the Prime Minister, saying therein that although the F.I.R. of the occurrence had been sealed, yet a good deal of publicity had been given to it and further that the incident involving firing in the heart of the town, not far away from the Police Station, could have been detected immediately by the Police and the case registered suo motu ; Exh. P. W. 3/2-B/1, which is an endorsement of appellant Bhutto to the effect “I agree with you” ; Exh. P.W. 3/3-B, which is a report of J.A.D.O. (Joint Armed Forces Detection Organization) in which the visit of Malik Muhammad Waris to the Directorate General, I. S. I. has been mentioned, as also that the type of ammunition used in connection with the incident at Lahore was available in Darr ah Adam Khel as well as with underground elements in the settled Districts ; Exh. P. W. 3/3-A, a letter written by Mr. Saeed Ahmad Khan to the Defence Secretary, in connection with the said type of ammunition and requesting for a clarification as to which Army Units were in possession of the same;. Exh. P. W. 3/3-C, which is the reply of the Defence Secretary to the said letter of Saeed Ahmad Khan intimating therein that the said ammunition (of the Chinese origin) was once used by the Army Units, but now the same was only used by the FSF, Frontier Corps Units and the Army Corps Tank Crews; Exh. P.W. 3/3-D, which is a note written by Mr. Saeed Ahmad Khan to the Director-General of Information and Broadcasting Division, proposing that publicity be given to the statements made before the Inquiry Commission headed by Shafi-ur-Rehman, J. of the Lahore High Court, by the S.S.P., Lahore, and Malik Muhammad Waris; Exh. P.W. 3/3-E, which is a note of appellant Bhutto on the said document, and in which he approved the said suggestion; Exhs. P. W. 3/3-F, P. W. 3/3-G and P. W. 3/3-H which show that publicity was already given to the said statements of the P.Ws. ; Exh. P.W. 3/3-I, which is a note written by Saeed Ahmad Khan to Secretary to the Prime Minister, pointing out therein that Shafi-ur-Rehman, J. had in his judgment criticised the lapses in the investigation of the case at the initial stage, but expressed satisfaction with the subsequent investigation carried out by the CIA, Lahore ; Exh. P. W. 3/3-J, ‘which is a note recorded by appellant Bhutto on the said document (in which Saeed Ahmad Khan had suggested if publicity ought to be given to the relevant portions of the judgment) to the effect that he would decide the said question after going through the judgment ; Exh. P. W. 3/3-L, which is a letter written to appellant Bhutto by the Chief Secretary, Punjab, enclosing therewith a copy of the judgment of Shafi-ur-Rehman, J., referring therein to the discussion which he already had with Mr. Sated Ahmad khan during his visit to Lahore, and on which appellant Bhutto recorded his own note “What was the point of discussing it with you? Please discuss.” ; and Exh. P. W. 3/3-I in which it is said that appellant Bhutto disagreed with the suggestion of Saeed Ahmad Khan to give publicity to the favourable portions of the said judgment.
Before dealing with the effect of these documents, it may be mentioned that according to the learned Special Public Prosecutor, the said role played by Mr. Saeed Ahmad Khan was that of an innocent agent, whereas the one played by late Mr. Bajwa was clearly criminal in nature inasmuch as his only object was to divert the course of the investigation into wrong channels. This contention seems to be a contradiction in terms, although the reason for which it has been made is understandable. The entire case of the prosecution, in so far as it concerns the existence of conspiracy, entered into between appellant Bhutto and Mr. Masood Mahmood, is anchored in the evidence of the latter as corroborated by the evidence of Mr. Sated Ahmad Khan. It is, therefore, obvious that if Sated Ahmad Khan was not given the role of an `innocent’ agent, evidently he would then be an accomplice and incompetent to corroborate the evidence of P.W. Masood Mahmood.
Now coming to the said various documents, relied upon in the High Court, I feel no hesitation to say that they are innocuous or at any rate capable of being explained on the basis of more than one reasonable hypothesis. Assuming for the sake of argument that appellant Bhutto himself had given instructions to Mr. Saeed Ahmad Khan to go to Lahore, meet the concerned officials and look after his interest, in which respect, however, 1 have disbelieved the evidence of the latter, even then his said conduct cannot be said to be criminal, as the same can as well be explained on the hypothesis to the effect that being the first elected Prime Minister of the country, naturally he would be anxious to know the true facts of the case, in which, his arch detractor, namely, Mr. Ahmad Raza Kasuri had mentioned his name. In point of fact this conduct of appellant Bhutto would seem to be entirely natural, for anyone being accused of murder, and that too by an arch enemy, would conduct himself in the like manner. Without going into the details of the said various documents, therefore, every word of which I have read with considerable care, it is clear to me that they do not even remotely incriminate appellant Bhutto. But nonetheless it would be proper to refer to few of them to highlight the utter absurdity of the evidence of Mr. Sated Ahmad Khan.
Now the evidence of Mr. Saeed Ahmad Khan, and here disregarding the various improvements made by him therein from stage to stage, is that when the name of appellant Bhutto was mentioned in the inquiry proceedings conducted by Shafi-ur-Rehman, J. of the Lahore High Court, the former telephoned him either from Larkana or Karachi and told him “what the hell are you doing in Rawalpindi when my name is being taken before a judicial inquiry being held at Lahore . . . . . . . . . . . in the murder case of late Muhammad Ahmad Khan. What kind of Chief Security Officer and Legal Advisor you are ? and that you should proceed to Lahore immediately”. He admitted, however, that the said inquiry proceedings had started in January, 1975. And so it should be obvious that the very first time appellant Bhutto talked to him about the murder of Nawab Muhammad Ahmad Khan was after about two months of his assassination, and that too when his name was mentioned in the proceedings before the said Tribunal. Long before that, however, his name had been mentioned in the FIR lodged by Mr. Kasuri, but evidently he showed no anxiety in the matter, although Mr. Saeed Ahmad Khan had kept him informed in that behalf in the various notes submitted to him from time to time.
The next claim of Mr. Sated Ahmad Khan, which in any case, is by way of improvement, is that during his visit to Lahore he came to know that the type of crime empties recovered from the scene of occurrence (7.62 mm.), clearly indicated the use of Chinese weapons which were then in the official use of the FSF. On returning to Rawalpindi, therefore, he conveyed the said information to Mr. Masood Mahmood who, however, put him off saying that Chinese weapons were also an use with the various Army Units as also that they were smuggled into the country. Being dissatisfied with the said answer of Masood Mahmood, he met with appellant Bhutto and conveyed him the said information but he also gave him the same reply. Thereafter (and acre again he is deposing by way of improvement), appellant Bhutto told him to find out from J.A.D.O. as well as from the Defence Secretary as to which Units of the Army were in possession of the Chinese weapons, and further if they were available at Bara, a market place situate in the Tribal territory of N.-W.F.P.). In pursuance of the said instructions given to him by appellant Bhutto, he wrote to J.A.D.O. and the Defence Secretary, who in reply (vide Exhs, P. W. 3/3-B and P. W. 3; 3-C, respectively) informed him that the Chinese weapons were in the official use of Frontier Corps Units and FSF etc. On receipt of the said replies (and here again he is deposing by way of improvement), he “got perplexed because in it was mentioned that the Chinese weapons are in the use of the FSF and I had been given positive instructions by the Prime Minister that FSF be kept out”. The fact, however, is that long before the alleged instructions given to him by appellant Bhutto, the exact information in respect of the type of ammunition used in the attack made on the car of Mr. Ahmad Raza Kasuri at Lahore had come on the record of the Tribunal presided over by Shafi-ur-Rehman, J., as also that the said ammunition was used in the Chinese weapons which were in the official use of the FSF. 1n this view of the matter, there was hardly any occasion for Mr. Saeed Ahmad Khan to get `perplexed’, as the information conveyed him by J.A.D.O. and the Defence Secretary was already known publically. I am, therefore, of the view that by writing to J.A.D.O. and the Defence Secretary, Mr. Saeed Ahmad Khan was trying to exhibit his usual enthusiasm in all matter even remotely relating to appellant Bhutto, and not that the latter had given him any instructions in that behalf.
Mr. Saeed Ahmad Khan has next said in his evidence, which again is by way of improvement, that “1n May, 1974 in one of my usual interviews with the Prime Minister”, after a number of subjects had been discussed and he got up to leave, appellant Bhutto asked him if he knew Ahmad Raza Kasuri ? He replied that he did not know him personally. On this he told him that he had given some work to Mr. Masood Mahmood, Director-General, FSF in connection with Mr. Kasuri and to “remind him”. Now on the face of it, this claim of Mr. Saeed Ahmad Khan seems to be patently absurd and unbelievable. If there was any truth in his said claim, evidently he ought to have mentioned the same in his previous statements, which, however, is not the case. Furthermore, it is inconceivable that after he told appellant Bhutto that he did not know Mr. Kasuri personally, the latter, instead of picking up the secrophone himself and reminding Mr. Masood Mahmood, would ask him to do the same--unless of course it is assumed that appellant Bhutto was so naive as not to realize the implications of his said indiscretion to the effect that by proliferating the said news unnecessarily, he was evidently tightening the noose round his own neck.
The evidence of Mr. Saeed Ahmad Khan also is that on the instructions given to him by appellant Bhutto, he had opened three files in respect of Mr. Ahmad Raza Kasuri in July, 19,73, with the aid of his `personality’ sheets. secured by him from the Director-General, Intelligence Bureau, as well as from the Special Branch, Lahore. It is in evidence, however, that similar files also were opened and maintained in respect of many other persons belonging to diff--rent walks of life as a measure of the usual practice of each Government. In the case of Mr. Kasuri, therefore, how can it be said that he was treated differently ? Furthermore, by the type of speeches made by him both inside and outside the National Assembly, in which he poured out his venom against appellant Bhutto, can any serious objection be really taken to the opening of his said files or for the matter of that to keep him under strict surveillance.
The entire claim of Mr. Saeed Ahmad Khan to the effect that on the instructions given to him by appellant Bhutto, he had gone to Lahore to oversee his interest is belied by the fact that when Mr. Muhammad Hanif Ramay, the then Chief Minister of the Punjab, wrote letter (Exh. P.W. 35/3) to appellant Bhutto saying therein amongst other things, “The report has already been discussed with your Chief Security Officer. I have asked the Chief Secretary to send him a copy”. Mr. Bhutto made a note on it “What was the point of discussion with you ? Please discuss”. Now this note of appellant Bhutto does not appear on Exh. P.W. 3513, but the same was proved by Muhammad Yousaf (PW. 27), Superintendent, CMLA Secretariat, Rawalpindi, from the Diary/Despatch Register of the Secret Section of the Office in which all such correspondence used to be entered, as also the notes recorded thereon by appellant Bhutto. If the claim of Mr. Saeed Ahmad Khan was really true, then the said note recorded by appellant Bhutto would seem to be inconsistent with his claim. And thus how can any reliance be placed on his simple word?
The claim of Mr. Saeed Ahmad Khan also is that in accordance with the instructions given to him by appellant Bhutto, he had arranged through the media that wide publicity be given to the statements made by Messrs Asghar Khan, S:S.P.. Lahore, and D.S.P. Malik Muhammad Waris before, the Special Tribunal presided over by Shafi-ur-Rehman, J. of the Lahore High Court, because the said statements favoured Mr. Bhutto. However, the judgment delivered by Shafi-ur-Rehman, J. in the said proceedings was, not permitted to be given any publicity by Mr. Bhutto, as according to’ him it was against his interest. Now the High Court has believed the said evidence of Mr. Saeed Ahmad Khan as true, and relying on documents Exhs. P.W. 3/3-D, P.W. 3/3-F and PW. 3/3-J, which are the notes written by Mr. Saeed Ahmad Khan to Secretary to the Prime. Minister, held against appellant Bhutto. With profound respect to the High Court, however, neither the said finding can be sustained nor the evidence of Mr. Saeed Ahmad Khan accepted. A bare perusal of Exh. -P.W. 3/3-D, dated 1-2-1975, would show that in it Mr: Saeed Ahmad Khan had for the very first time broached the subject of giving publicity to the statements made by Asghar Khan, S.S.P., Lahore, and Malik Muhammad Waris with Mr. S. N. Qutb, Director-General, Information and. Broadcasting Division. However, in the very next note (Exh. P.W. 3/3-F, dated 6-2-1975) written by Anwar Ahmad, Director (News), it is pointed out that the proceedings of the inquiry conducted by Shafi-ur-Rehman, J. have already received publicity in `Pakistan Times’, Lahore, `Nawa-e-Waqt’, Lahore, `Nawa-e-Waqt’, Rawalpindi, and `Jung’, Rawalpindi, on January 30, 1975, as also in the ‘Morning News’, Karachi, `Hurriyat’, Karachi, and `Nawa-e-Waqt’, Rawalpindi, of February 3, 1975. Now from these un-controverted facts, it would be clear that the said proposal made by Mr. Saeed Ahmad Khan to Mr. Qutb was not only entirely futile, but indeed commensurate with his role as Major Domo in connection with anything which even remotely concerned Mr. Bhutto. The fact that no action was taken on his said proposal, as it is conceded that no publicity of any kind was given to the statements of P.Ws. Asghar Khan and Malik Muhammad Waris, would seem to .support the said conclusion. But the High Court, with respect, seems to Dave accepted the evidence of the witness as a matter of course, without analysing it in the context of the said documentary evidence, only because Exh. P.W. 3/3-D was brought to the notice of appellant Bhutto and he had just put his initials on it.
The High Court also with respect seems to have given undue importance to the claim of Mr. Saeed Ahmad Khan to the effect that the judgment delivered by Shafi-ur-Rehman, J. was not approved for publicity because according to Mr. Bhutto, it would be against his interest. A look at document, Exh. P.W. 3/3-J, dated 28-2-1975, which is a note written by Mr. Saeed Ahmad Khan to Secretary to appellant Bhutto, would show that after enumerating therein the finding of the learned Judge as to the lapses into the investigation of the case at the initial stages, and the directions given by him in respect of the future course of the investigation, the suggestion offered by him therein was “I would humbly suggest that the relevant portions of the report may be published to clear the position, emanating as a result of this incident. The various possibilities and probable causes of this murder have been enumerated in this report”. Now a casual look at the words (underlined by me), which, however, seem to have escaped the notice of the High Court, would clearly reveal that all that Mr. Saeed Ahmad Khan was interested it was to give publicity only to those portions of the judgment of Shafi-ur-Rehman, J., in which “the various possibilities and probable causes” relating to the murder of Muhammad Ahmad Khan had been enumerated in order to help “clear the position” of appellant Bhutto.
:Reference may also be made to Exh. P.W. 3/2-M, dated 7-12-1974, a note written by Mr. Saeed Ahmad Khan to Secretary to Mr. Bhutto, under the cover of which the former had forwarded a copy of the secret report of his assistant late Mr. Bajwa in which it was said, amongst other things, that Mr. Ahmad Raza Kasuri had moved a privilege motion in the Assembly about the assassination of his father, but most of his speech was expunged, as also that Mr. Bhutto being the murderer of his father should be arraigned before a Court of Law. Now in the secret report in question, there is no mention of the fact that “Ahmad Raza Kasuri is in a desperate state and has been heard saying that he will take revenge, of the murder of his father personally”, and yet they are there in the said note of Mr. Saeed Ahmad Khan which would evidently mean that he was the author of them. Regardless of the question of the admissibility of the said secret report in evidence as the informant of it nor the source from which it emanated was examined in the High Court, a bare look at the said document (Exh. P.W. 3/2-.M) would reveal the spontaneous conduct of Mr. Saved Ahmad Khan, as this is how he commented upon the said report : “This note contains a pack of lies and incidents relate to 1971, before PPP came in power. Copies of this note, however, were distributed by Ahmad Raza Kasuri, and his henchmen to Foreign Embassies and to Foreign Journalists including Chinese News Agency”. This being the type of witness as Saeed Ahmad Khan was, it is sad that his bare word from the dock-should have been accepted as a gospel truth, specially when by the examination of the said documents, he was not at all a truthful witness.
Lastly, reference may be made to Exh. P.W. 28/1, which is a source report submitted by Ashiq Muhammad Lodhi (P.W. 28), Acting Assistant Director, FSF Headquarters; Rawalpindi, to late Mr. Abdul Hamid Bajwa in connection with one Sher Baz Khan, the gunman of Mr. Ahmad Raza Kasuri. Now this report, which has been proved by P.W. Lodhi, is no doubt admissible in evidence, but I am afraid there is nothing in it to involve appellant Bhutto. By going through the said report, it would be seen that all that has been mentioned therein is the description of Mr. Sher Baz Khan, as also that when Mr. Kasuri goes into the National Assembly, he is present in the Gallery. Now the finding recorded by the High Court on the said report is : (see para. 522 of the judgment) that Abdul Hamid Bajwa continued, with the consent of the principal accused, his witch hunting against Ahmad Raza Kasuri even after the Lahore occurrence and left no stone unturned to drive a wedge in the security measures taken by the latter to effect a break through obviously in order to facilitate the completion of the performance of the conspiracy. There could be no other object of collecting information about the security measures taken by Ahmad Raza Kasuri and about the description of his gunman.” With profound respect to the High Court, however, the said report is susceptible of more than one construction. It is in the evidence of P. W. Lodhi that during the relevant period, he was posted in the National Assembly of Pakistan ; that one of his duties was to eavesdrop on the conversation of the M. N. As. and to submit a report to the higher officials ; that for the purposes of security, he used to give the description of all persons visiting the National Assembly ; and that he had submitted report Exh. P.W. 28/1 to late Mr. Bajwa, as Mr. Bajwa had asked him to do so. It would thus be seen that even according to the routine of his charter of duties, P. W. Lodhi had to submit a report on Mr. Sher Baz Khan, the gunman of Mr. Kasuri, as he used to visit the House and sit in the Visitors’ Gallery. Furthermore, if the object of Mr. Bajwa was “to drive a wedge in the security measures taken” by Mr. Kasuri, then he would have kept the said report to himself and not distributed its copy (Exh. P.W. 23/2-R) to the Spesikor of the National Assembly, and another copy (Exh. P.W. 23/2-S) to the Deputy Inspector-General of Police, Rawalpindi Range, for information. The High Court, with respect, seems to have not adverted to these facts, and so I have not been able to agree with its said conclusion.
I can go on and on dealing with each and every pie-.e of evidence relating to the `subsequent’ conduct of appellant Bhutto to show their patent absurdity, unnaturalness, as also that they are capable of being explained on the basis of another reasonable hypothesis. But it would be a sheer waste of public time. Enough has been said by me to show that many vital links in the long chain forged by the use of the circumstantial evidence in this case by the prosecution’, have snapped, with the result that the chain has broken into many pieces. I am, therefore, of the humble view that all the pieces of evidence relied upon by the prosecution as to the alleged `subsequent’ conduct of appellant Bhutto are wholly illusory, and of no consequence whatever. A priori, it should follow that the prosecution has not only failed to establish any motive against appellant Bhutto. But from the evidence relied upon by it the existence of another motive has not been excluded.
I would now take up the question of conspiracy entered into between appellant Bhutto and Mr. Masood Mahmood to assassinate Mr. Ahmad Raza Kasuri. In doing so, however; what ‘I propose to do is first to analyse the evidence of Mr. Masood Mahmood to see if it is natural, probable and convincing, without taking into consideration the fact that he was taken into custody by the Martial Law Authorities on the very day (i.e. July 5, 1977) when the Government of appellant Bhutto was removed or that as an approver, he should not be believed, unless his evidence is corroborated in material particulars. To put is differently, I am going to treat him just like an ordinary witness, .without holding against him (for the time being) the stigma that being self-confessed criminal, and having betrayed his former associates under the temptation of saving his own skin, his evidence must be viewed with distrust and the same not accepted in the absence of corroboration in material particulars.
I have in the earlier part ;of this judgment, quoted from treatise and quite a few judgments the necessary principles to show as to how the evidence in a case ought to be analysed. Notwithstanding the said position, however, I am tempted to quote the following passages appearing on pages 47 and 50 of the Law of Evidence by N. D. Basu (1950 Edition) as they seem to me to contain the essence of pragmatic wisdom :-----
“In a jury trial great caution is to be observed by the Judge as regards circumstantial evidence: In cases of such evidence process of inference and deduction are essentially involved, frequently of a delicate and perplexing character liable to numerous causes of fallacy, some of them inherent in the nature of the mind itself, which has been profoundly compared to the distorting power of an uneven mirror, imparting its own nature to the true nature of things”----------------------There is no standard for the sufficiency of evidence to induce belief, and the various degrees of more or less must, ordinarily, be left to the unprejudiced consideration of the jury,” said Judge Wardlaw of South Carrolina in Means v. Means 5 Strobh. L S (Cab.) 167. Belief is rarely the consequence of strictly logical process. It is either partially or entirely the outgrowth of education-bias, affection, fear or some other influencing passion. We believe what we wish to believe, and’ what we are in the mood of accepting as true. The same evidence which to one may be convincing, to another may seem absurd. Per Vice-Chancellor Pitney, in Duvale v. Duvale 34 Atl. Rep. 888. So there is no standard by which the weight of conflicting evidence can be ascertained. Per Sutherland, J., in People v. Superior. Ct. 5 Wind. (N Y) 114. In estimating the weight of evidence we cannot make it as so many ounces, pounds, or tons, and yet we know that it may have all degrees of weight from the lightest feather to the most absolute moral certainty. All we can do is to note all the facts and circumstances carefully and estimate its absolute and relative weight by the lights of conscience and experience (Boylan v. Micker 28 N J H 274). We have no test of truth of human testimony, except -its conformity to our knowledge, observation, and experience. Per Vice-Chancellor , Van-Fleet in Daggers v. Van Dyck 37 N J Eq. 130 and in Jersey City Bank v. O’ Rourke 40 N J Eq. 92. The effect, then; which all evidence has upon the mind is determined by observation and experience, the only original instructors of wisdom.”
Now bearing these principles in view, let us proceed to examine the evidence of Mr. Masood Mahmood. The essence of his evidence, which actually runs into 132 typed pages, and the bulk of which is unnecessary, is that being a member of Police Service of Pakistan he attained the rank of Deputy Inspector-General, and in 1969 was selected as Deputy Secretary-General, CENTO, with Headquarters at Ankra. On his return from Ankra in 1970, at his own request, he was posted as.` Deputy Secretary-Ministry of Defence ; later promoted as Joint Secretary and Additional Secretary, and then appointed to what he has called a punishment post, viz. Managing Director, Board of Trustees Group Insurance and Benevolent Fund into Establishment Division. On being appointed to that post, he attempted to meet with Mr. Vaqar Ahmad, the then Secretary Establishment, but failed. Sometime m early April, 1974, however, Mr: Vaqar Ahmad called him and told him that he was to meat with appellant Bhutto .coq April 12, 1974, but he should first come and see him. Mr. Vaqar Ahmad was very good to him in the said meeting. He told him that appellant Bhutto was going to offer him an appointment which he must accept. He then dilated on the state of his domestic affairs saying that his wife was not keeping good health ; his children were small ; he himself was a heart patient ; he had yet to clear the loans obtained by him from the Bank, as well as the Government, in connection with the construction of the only house which he possessed ; that under the revised Service Rules an officer of Grade 21 (which he was) and above could be retired from service at any time, and in that behalf read out to him the relevant Rules ; and that all this conversation, therefore, left him with the impression that his job was at the mercy of the Prime Minister and Mr. Vaqar Ahmad.
On November 12, 1974, he called on Mr. Bhutto who was kind to him ; he praised his integrity and capacity. for hard work, and offered him the post of Director-General, FSF. He told him not to accept any instructions from the then Minister of Interior, namely, Mr. Abdul Qayyum Khan. He advised him not to terminate the services of reemployed officers without his prior permission, as they were all useful people, and in that connection specially mentioned the name of appellant Mian Muhammad Abbas. He said that he expected him to forge the FSF into a deterrent Force. He finally told him that since Mr. Vaqar Ahmad did not like him he should keep on his right side.
Between 12-4-1974 and 23-4-1974, while he was still working as Managing Director, Board-of Trustees Group Insurance and Benevolent Fund, Saeed Ahmad Khan (P.W. 3), the then Chief Security Officer to appellant Bhutto, and his assistant Abdul Hamid Bajwa (deceased) visited him several times and gave him the impression that if he declined to accept the job offered to him by appellant Bhutto he would not be able to see his wife and children again. Therefore, he formally assumed the charge as Director-General, FSF, on April 27, 1974. The charter of his duties was contained in the Federal Security Force Act, 1973, but appellant Bhutto had, during the said interview, instructed him that the Force must be made available to him for-------
(a) breaking up political meetings ;
(b) harassment of personages both in his dvvn party arid in the Opposition ; and
© induction of the plain-clothed personnel of the Force in public ‘ meetings addressed by him to swell the crowd.
In June, 1974, when appellant Bhutto was addressing the National Assembly of Pakistan, Mr. Ahmad Raza Kasuri interrupted him at which appellant Bhutto, ignoring the Speaker of the House, addressed him directly, and admonished him to keep quiet, adding that he had had enough of him and that he would not tolerate his nuisance any more. A day or two later, he (Masood Mahmood) was sent for by appellant Bhutto who told him that he was fed up with Ahmad Raza Kasuri, and that Mian Muhammad Abbas knew all about his activities, as he had already., been given instructions through his predecessor Haq Nawaz Tiwana (deceased) to get rid of him. He, therefore, told him to ask Mian Muhammad Abbas to get on with the job and “produce the dead body of Mr. Ahmad Raza Kasuri or his body bandaged all over”, adding that he would hold him personally responsible for the execution of the said order. On hearing this, he was naturally shaken and pleaded with Mr. Bhutto that the execution of his order would be against his conscience, and certainly against the dictates of God. But Mr. Bhutto lost his temper and shouted at him saying that he would have no nonsense from him or from Mian Muhammad Abbas. He raised his voice and said “you don’t want Vaqar chasing you again, do you ?” At this, he returned to his Office in a perplexed state of mind, called Mian Muhammad Abbas and conveyed him the order of appellant Bhutto. However, he was surprised to notice that Mian Muhammad Abbas was not at all disturbed. He told him not to worry and that the said order would be duly executed, as he had already been conveyed the same through the former. Director-General, FSF. Subsequently, appellant Bhutto kept on reminding him and goading him from time to time for the execution of his said order on the green telephone, as well as through Saeed Ahmad Khan and Abdul Hamid Bajwa (deceased). Saved Ahmad Khan had spoken to him over the green line and told him that appellant Bhutto wanted him to execute the order already given to him in respect of Ahmad Raza Kasuri.
In August, 1974, Ahmad Raza Kasuri was fired upon at Islamabad. However, before the said incident, and after appellant Bhutto had spoken to him to do away with Ahmad Raza Kasuri, he had asked him that since Mi. Kasuri was likely to be paying a visit to Quetta he had better take care of him there. Accordingly, he gave directions to Mr. M. R. Welch (P.W. 4), the Director, FSF, Quetta. He told him that some anti-State elements such as Ahmad Raza Kasuri had to be got rid off, as he bad been delivering anti-State speeches with a view to damaging the interest of the country. The said directions were’ given by him to M. R. Welch on telephone, as well as personally, when he later met him at Quetta. 1n this respect he produced in evidence three documents, viz. Exh. P.W. 2/1 (also marked as Exh. P.W. 2/Z), Exh. P.W: 2/2 and Exh. P.W. 2/3, all of which had emanated from Mr. Welch and -which showed that when Mr. Ahmad Raza Kasuri subsequently visited Quetta how his movements were kept under observation and he kept under the constant surveillance of Mr. Welch.
On November 11’, 1974, when he (Masood Mahmood and appellant Bhutto both were on a visit to Multan, the latter phoned him up very early in the morning and said “Your Mian Abbas has made complete. balls of the situation. Instead of Mr. Ahmad Raza Kasuri, he has got his father killed”. On hearing this, he was taken by surprise, but appellant, Bhutto disconnected saying that he would summon him later. His A.D.C. then called him at the residence of Mr. Sadiq Hussain Qureshi at. Multan and when he was ushered into his presence (Mr. Sadiq Hussain Qureshi being seated with him). he told him in a non-chalant manner, as if he had not talked to him before : “I hear Mr. Ahmad Raza Kasuri’s father has been killed last night at some place in Lahore”. He replied he had also heard of the same. Soon thereafter, he (Masood Muhmood) returned to the Headquarters at Rawalpindi, when. Mian Abbas informed him that his operation had been successful, but instead of Ahmad Raza Kasuri his, father had been murdered at Lahore.
On the same day he was summoned by appellant Bhutto at Rawalpindi, who was “peeved and agitated”. He told him that the actual task had yet to be accomplished. He, however, replied that: “at your behest an idea conceived by you was carried out and the fact remains that both you and I and my subordinates will be taken to task by God Almighty, but I will not carry out any such orders anymore”. Accordingly, Mr. Bhutto “piped down after hearing me”, but “there were other occasions on which he continued to goad me into getting Ahmad Raza Kasuri assassinated. I categorically said `no’.” With the result that there came to be made attempts on his life ; threats were extended to him ; attempts were made to kidnap his children from Aitcheson College, Lahore; attempts were made at the poisoning of his food at Chamba House, Lahore, where he discovered that some of his own subordinates, who seemed to have been won over, were lurking around the places where they had no business to be present when he was around.
On July 5, 1977: !le was taken into protective custody in the early hours of the morning. He was initially taken to some Army Mess at Rawalpindi, but later removed to Abbottabad the same evening, where he stayed until the early days of August. On august 14, 1977, however, he addressed a letter to the Chief Martial Law Administrator, making a clean breast of the misdeeds of the FSF, ,carried out by him under the orders of appellant Bhutto. Before the 4th week of August, 1977, he was contacted by the Federal Investigating Agency before wham he volunteered to make a confessional statement m respect of the murder of Nawab Muhammad Ahmad Khan. He was, therefore, produced before a Magistrate at Islamabad and he made the confessional statement (Exh. P.W. 2/4). Subsequently, he made an application to the authorities from Camp Jail, Lahore, and said therein that if he were to be granted pardon and made an approver in the case, he would tell the whole truth in connection with the murder of Nawab Muhammad Ahmad Khan. Upon receipt of his said application (Exh. P.W. 12/5), he was granted pardon under section 337, Cr. P. C., and made an approver. On 14-9-1977, therefore, he made before a Magistrate at Lahore, h ( approver’s statement (Exh. P.W. 2/6).
In support of his evidence, the witness also produced a copy of his T. A. Bill (Exh. P.W. 2/7), in connection with his visit to Multan on November 10, 1974, alongwith the details of his tour programme for the period a 1-11-1974 to 11-11-1974 (Exh. P.W. 2/8), and T.A. Bills (Exh. P.W. 2/9) and (Exh. P.W..2/10),’ in connection with his visit to Karachi, Sukkur,. Larkana, Quetta and Lahore, for the period July 18, 1974 to August 4, 1974, and, during which visit he was received in audience by appellant Bhutto at Larkana, who discussed with him the details of his proposed visit to Baluchistam On July 29, 1974, again he was given an `audience’ by appellant Bhutto at Quetta as he distinctly remembered that three days thereafter (i.e. on August 2, 1974), he addressed a public meeting there.
Now this is the substance of what Mr. Masood Mahmood has said in his examination in chief. Enough has been said by me in the earlier pact of the judgment ‘to the effect that all his evidence in respect of what Mr. Vaqar Ahmad had, told him in the meeting held in April, 1974, is inadmissible in evidence:’’ But that apart, it may still be instructive (if not necessary) to analyse his examination-in-chief (without going into his cross-examination for the present, however, or for that matter into the various omissions, contradictions and improvements made by him therein from time to time) in order to see if the same is natural or probable ? In finding a proper, answer to this question, however, the various judgments and treatise noted hereinbefore, and in which safe guidelines have been laid down for the proper appreciation of evidence in a criminal case, must constantly be kept in view, as also that Mr. Masood Mahmood is not an ordinary witness in the sense of being uneducated, or lacking wordly wisdom or experience of human affairs.
Now besides being a University Graduate, at a very young age, he joined the then Royal Indian Air Force as a Trainee Pilot Officer, but due to an accident, on account of which he seems to have lost what he has described as `rubber-neck’ and consequently his utility for flying. Therefore, he left the Air-Force, and after a short stint in a Secretarial job in the Department of the Rehabilitation of the then Government of Punjab, he joined the Police Service of Pakistan. As Police Officer, he seems to have justified his selection, as soon he attained the high rank of Deputy Inspector-General. In 1969, he was selected as Deputy Secretary-General, CENTO, with Headquarters at Ankra. On his return from Ankra in 1970, at his own request, he was posted as Deputy Secretary in the Ministry of Defence, Government of Pakistan, later promoted as Joint Secretary and Additional Secretary, and then appointed to what he has called a punishment post, namely, as Managing Director, Board of Trustees Group Insurance Benevolent Fund in the Establishment Division. On this appointment, which he evidently resented, he attempted to seek an interview with Mr. Vaqar Ahmad, the then Establishment Secretary, but did not succeed, and so he continued to remain in that post until appointed as Deputy Director-General, FSF.
Now this is the background of Mr. Masood Mahmood in the context of which his first meeting with Mr. Vaqar Ahmad held in April, 1974, and all-that transpired therein between them has to be seen and evaluated. Now the substance of his evidence is that sometime in April, 1974, Mr. Vaqar Ahmad called him, and told him that he was to meet with appellant Bhutto on April 12, 1974, but he should first come and see him. Mr. Vaqar Ahmad was very nice to him in the said meeting, he even discussed with him his very intimate and personal affairs such as that his wife was not keeping, good health ; his children were small ; that he himself was A heart patient ; that he had yet to clear the, loans-obtained by him from the Bank, as well as the Government, in connection with the construction of his only house ; that under the revised Service Rules an officer of Grade 21 and above could be retired from service at any time ; and that he actually read out to him the relevant Rule with the result that he went away with the impression that his job was at the mercy of the Prime Minister and Mr. Vaqar Ahmad. Frankly, all this evidence of Mr. Masood Mahmood is not only intriguing, but utterly unnatural and improbable. His evidence would show that before he was called by Mr. Vaqar Ahmad to his office, the latter seems to have made thorough enquiries into his very personal and intimate affairs; had heard from appellant Bhutto his views about his proposed appointment as the Director-General, FSF ; had already arranged his interview with appellant Bhutto for April 12, 1974 ; and that the kind of talk which he had with Mr. Vaqar Ahmad in the said interview had left him with the impression that his job was at his as well as at the mercy of appellant Bhutto. There is no evidence on record to show, however, that the post of the Director-General, FSF was so hazardous, or unpopular or incongenial as to require such a well-calculated effort on the part of no less a person than Mr. Vaqar Ahmad to play upon his finer susceptibilities, psychologically to prepare him not to decline the said job, nor indeed is there any evidence to show that Mr. Masood Mahmood (or for that matter Mr. Bhutto) was known for the depravity of his character as to make him the proper instrument for the implementation of the alleged diabolical designs of the latter. It is in his evidence that when Mr. Vaqar Ahmad called him in his office in April, 1974, he not only reminded him that an officer of Grade 21 and above, under the revised Service Rule`s, could be retired at any time, but he actually read out to him the relevant Rule in that behalf with the evident view in his mind to make him agree to accept the post of Director-General, FSF or face the unpleasant prospect of losing his job as a Government servant. I am afraid all this is too unnatural and improbable to be believed. After all, he was a Government servant, and so how could he have refused to be posted to any post in the heirarchy of the Government--specially when on his own showing he was plagued by a variety of domestic problems such as the poor health of his wife ; his small children and the loan which he owed to the Bank as well as the Government, and consequently could not afford to lose or resign his job. His claim that in the said meeting Mr. Vaqar Ahmad actually read out to him the relevant Rule, under which an officer of Grade 21 and above could be retired at any time seems further to render his testimony absurd and improbable. Mr. Vaqar Ahmad, being the Establishment Secretary of the Federal Government, must be deemed to have the requisite experience, maturity and the realisation of the importance of his high office, and hence it is inconceivable that he would have indulged in the said unnatural exercise when the simplest thing for him ought to have been to issue the necessary order of the transfer of Mr. Masood Mahmood as Director-General, FSF. The kind of picture which Mr. Masood Mahmood seems to have painted in his evidence, however, is as if he was goaded into a `Kami Kaze’ type of an undertaking, not realizing that as Government servant he could be transferred from one post to another without his consent by the issuance of a simple notification/order.
Similarly, the type of picture painted by him of his alleged conversation with appellant Bhutto, in the meeting of April 12, 1974, Mr. Masood Mahmood does not seem to have helped his image. It is inconceivable that as Prime Minister of the country, only to persuade him to accept the post of Director-General, FSF, Mr. Bhutto would first praise his integrity and capacity for hard work, and then proceed to advise him not to accept any instructions from a member of his own Cabinet, namely, the then Minister of Interior under whom he was to work directly ; not to terminate the services of the re-employed officers of the FSF without his permission (making a special mention of Mian Muhammad Abbas), and to keep himself on the right side of Mr. Vaqar Ahmad. If there was any evidence on record to show (not of course the surmises and conjectures with which the evidence of the P. Ws. is indeed replete) that the FSF was so dreaded a Force as to make any correct officer hate to do anything with it, or for that matter Mr. Masood Mahmood was known for the depravity of his character, then there would be no difficulty to appreciate his evidence. But this is not the position. I am, therefore, of the humble view that the said evidence of Mr. Masood Mahmood is patently absurd, just as it would be absurd to believe him that after all the said efforts made on him both by Mr. Vaqar Ahmad and Mr. Bhutto, the latter then set after him his `hounds’, namely, Mr. Saeed Ahmad Khan (his Chief Security Officer) and his assistant late Mr. Bajwa to keep on reminding him that in case he declined to accept the job offered to him by appellant Bhutto, he would not be able to see his wife and children again.
Mr. Masood Mahmood has next deposed that after the National Assembly incident between appellant Bhutto and Mr. Ahmad Raza Kasuri in June, 1974, the former called him and told him to remind Mian Muhammad Abbas to get on with the job of assassinating Mr. Ahmad Raza Kasuri ; that after sometime appellant Bhutto asked him that Mr. Kasuri was likely to be paying a visit to Quetta, and so he had better take care of him there; that accordingly he gave instructions to Mr. M. R. Welch, Ithe Director, FSF, Quetta, and that Mr. M. R. Welch had in that connection exchanged with him letters Exhs. PW. 2/1, P.W. 2/Z, P.W. 2/2 and P.W. 2/3 in which Mr. Kasuri was said to have been kept under close surveillance by the men of Mr. M. R. Welch. The High Court seems to have believed the said evidence of Mr. Masood Mahmood, as in paras. 480-483 of its judgment all the said evidence has been taken notice of and in the end the following finding recorded against appellant Bhatto :-
“480. The documentary evidence therefore, shows that although there was evidence of the stay of several persons belonging to the party of Ahmad Raza Kasuri P. W. I in Imdad Hotel, but the report Exh. P. W. 2/1 and the query of Mian Muhammad Abbas accused (Exh. P. W. 2/2) were confined to the dwelling place of Ahmad Raza Kasuri P. W. I. It is clear in this context that report Exh. P. W. 4/1 about the arrangements of the security of the Party of Ahmad Raza Kasuri is a device to submit a report that he was well-protected. This was explained by M. R. Welch P. W. 4 who stated that since he had no intention of committing the heinous murder he had to find a plausible excuse for not executing the order of P. W. 2 and he took refuge in the fact that Ahmad Raza Kasuri was well-protected.”
Mr. Yahya Bakhtiar, the learned counsel for appellant Bhutto has taken serious objection to the said finding recorded by the High Court, He contended that the said evidence of Mr. Masood Mahmood is untrue ; and that the High Court has accepted the said evidence as a matter of course without giving any consideration to the fact if the same could as well be explained on the basis of another reasonable hypothesis. He argued that when Mr. Kasuri visited Quetta, the conditions there were abnormal due to insurgency that Mr. Kasuri was known for the aggressive style of his politics as well as his antipathy towards the person and the Government of appellant Bhutto, and so it was feared that he might use the said opportunity to incite the local people against the Government ; that it was for this reason that instructions were given to Mr. M. R. Welch by p Mr. Masood Mahmood that he should be taken care of ; and that the said innocuous instructions given to Mr. Welch and the correspondence exchanged between him and Mr. Masood Mahmood have been misconstrued by the High Court to the great prejudice of appellant Bhutto. There seems to be force in this contention. However, since I have already discussed this part of the case in great detail, while discussing the motive-part of the case of the prosecution, the same process need not be repeated, except for this observation that the High Court, with respect, has not only accepted the bare word of Mr. Masood Mahmood, wi-hout subjecting it to proper examination in the context of the correspondence (Exhs. P.W. 2/1, P.W. 2/Z, P.W 2/2 and P.W. 2/3), which clearly belied him. “But it seems to have proceeded on a course of simply canvassing the probabilities of the case against appellant Bhutto which in view of the judgment of the Federal Court : P L D 1953 F C 137 was impermissible.
His evidence further is that Mr. Bhutto called him sometime in June, 1974, and told him that he was fed up with the obnoxious behaviour of Mr. Kasuri ; that Mian Muhammad Abbas knew all about his activities, as he had already been given instructions through the former Director-General, FSF, to get rid of him ; that he should therefore, remind Man Muhammad Abbas to get on with the job and “produce the dead body of Ahmad Raza Kasuri or his body bandaged all over”; and that he would hold him personally responsible for the execution of his said order. Mr. Masood Mahmood protested against the said order saying That it was against his conscience, as well as against the dictates of God ; that at this Mr. Bhutto lost his temper and shouted at him saying that be would have no nonsense from him or from Mian Muhammad Abbas, as also that “you don’t want Vaqar chasing you again, do you ?” At this he got up and went back to his office, called Mian Muhammad Abbas and repeated to him the order of Mr. Bhutto, who was not the least disturbed, however, and replied that he need not worry, that the order would be duly executed, as the same had already been passed on to hire by the former Director General, FSF. Subsequently, Mr. Bhutto went on reminding him from time to time for the execution of the said order personally, on the green telephone, as well as through Mr. Saeed Ahmad Khan.
Now a casual look at this part of his evidence ought to suffice to reveal at once the utter futility of his claim. A little contemplation over the basic concept of conspiracy would be enough to bring it home even to the most credulous that conspirators have to be circumspect, vigilant and cautious in keeping their designs so secret as not to leave any tell-tale signs or traces which may unmask their designs. I feel that there ought to be no quarrel with this basic assumption, even in the case of conspirators of low intelligence and unsophisticated background. Bearing this principle in mind, therefore, I have anxiously gone through every word of the story of Mr. Masood Mahmood a number of times to find in it some basis to make took plausible. But each time, I have been disappointed. It is inconceivable that a Prime Minister like Mr. Bhutto, the measure of whose political astuteness can be seen from the fact that within two years of his removal as the Foreign Minister of Pakistan in 1966 by the late Field-Marshal Muhammad Ayub Khan, he founded the PPP which in the General Elections of 1970 swept the polls to the National Assembly of Pakistan, and at least two of the Provincial Assemblies of what is now left of former Pakistan, would take into confidence Mr. Masood Mahmood, and that too only to use him for conveying to Mian Muhammad Abbas the message that he should get on with the job of doing away with Mr. Ahmad Raza Kasuri: It is in evidence that Mian-Muhammad Abbas had throughout been working as Director, Operations FSF, at the Headquarters at Rawalpindi, as also that according to Mr. Masood Mahmood himself some of his own officers were not only in direct contact with the personal staff of Mr. Bhutto, but on the instructions given by the latter had carried out certain secret missions over his head. If this be the case, then the question is as to why Mr. Bhutto would take Mr. Masood Mahmood into confidence, and that too in respect, of a very trivial matter, and not remind Mian Muhammad Abbas himself through a variety of means at his disposal such as by sending for him to fits own office which in a case of conspiracy of the present type ought to have been the most natural thing for him to do.
For similar reasons, I have not been able to persuade myself to accept the claim, of Mr. Masood Mahmood to the effect that subsequent to, the said order given to him by Mr. Bhutto, the latter went on reminding him through Mr. Seed Ahmad Khan to get on with the job entrusted to him in connection with Mr. Kasuri. In point of fact, the whole evidence of Mr. Masood Mahmood in that regard is utterly improbable unless of course it is assumed that Mr. Bhutto `vas so naive as not to realise the implications of his said conduct. It is difficult to believe that having already conveyed to Mian Muhammad Abbas, through the former Director-General, FSF his order to assassinate Mr. Kasuri, Mr. Bhutto would go on flaunting the said secret so in-discretely as to take, into confidence Mr. Masood Mahmood and Mr. Saeed Ahmad Khan both, and that too in respect of a very inconsequential matter, namely, that the former should remind Mian Muhammad Abbas about the task already entrusted to him and the latter Mr. Masood Mahmood to get on with the said job. Now if this was all the role played by the said two witnesses, which indeed is the case of the prosecution, how could a Court of law he persuaded to believe them when their respective roles, in the execution of the conspiracy to assassinate Mr. Kasuri,’ were not only wholly trivial, but Mr. Bhutto could as well have done without their aid simply by calling Mian Muhammad Abbas to his presence and telling him to get on with the job. It is true that the High Court has accepted all the said evidence but in doing so, with respect, it seems to have disregarded even the basic principle of scrutinising the same on the touchstone of naturalness and probability.
Mr. Masood Mahmood has further deposed that on November 11, 1974, he and Mr. Bhutto both were camping at Multan in connection with the tour-programme of the latter. In the very early hours of the morning, when he was still in bed, Mr. Bhutto phoned him up and said : “your Mian Abbas has made complete balls of the situation. Instead of Mr. Ahmad Raza Kasuri he has got his father killed”. On hearing this, he was taken by surprise, but Mr. Bhutto disconnected after telling him that he would summon him later. After sometime, the A. D. C. of Mr. Bhutto summoned him to the residence of Mr. Sadiq Hussain Qureshi, where he was staying, and when he was ushered in, Mr. Bhutto, in the presence of Mr. Qureshi, who was seated beside him, told him in a non-chalant manner, as if he had not talked to him before : “I hear Mr. Ahmad Raza Kasuri’s father has been killed last night somewhere in Lahore”, and he replied that he also had heard about it.
Soon thereafter he returned to Rawalpindi .when Mian Abbas reported to him (Masood Mahmood) that his. operation had been successful, but instead of the intended victim his father Nawab Muhammad Ahmad Khan had been murdered at Lahore. According to him, he had left Multan the same afternoon (i.e. on November 11, 1974)- and on his return to Rawalpindi, he was summoned by Mr. Bhutto whom he found “peeved and agitated”. However, he said that the actual task had yet to be accomplished. But he replied : “at your behest an idea conceived by you was carried out and communicated, by me to Mian Abbas who had already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to , task by God Almighty, but will not carry out any such orders anymore”. After hearing him, thus, Mr. Bhutto “piped down” but “there were other occasions on which he continued to goad me into getting Mr. Ahmad Raza Kasuri assassinated. I categorically said `no’.” Thereafter attempts were made on his life; threats were held out to him ; attempts were made to kidnap his children from Aitchison College, Lahore ; there were repeat performances at poisoning his food at Chamba House, Lahore, where he discovered that some of his own subordinates seemed to have. been won over, as’ he saw them lurking around at places where they should not have been when he was around.
Now it is true that the father of Mr. Ahmad Raza Kasuri was murdered on the ‘night between November 10 and 11, 1974, at Lahore. But the question is whether Mr. Bhutto can be said to have phoned up Mr. Masood Mahmood about it in the very early hours of the morning, when he was still in bed, and told him that “your Mian Abbas has made complete balls of the situation. Instead of Mr. Ahmad Raza Kasuri, he has got his father killed’’? It is admitted on all hands that Mr. Bhutto was connected with Mr. Masood Mahmood through the public-call-system, without the cover of arty secrecy. It is, therefore, unbelievable that Mr. Bhutto, who was the main Architect of the conspiracy, would take the risk of talking to him on the phone due to the evident fear of being monitored or overheard by the Operator at the Local Exchange. The utter futility, of the said claim of Mr. Masood Mahmood seems to be high lighted by the fact that when Mr. Bhutto later summoned him to the house of Mr. Sadiq Hussain Qureshi, all what he did was to repeat in the presence of Mr. Qureshi, the same thing which he had already told him on the telephone, as if his earlier conversation with him was not enough to have achieved the desired effect.
Be that as it may, it is difficult to believe him that he was phoned up by Mr. Bhutto at the said hour or subsequently summoned to the house of Mr. Sadiq Hussain Qureshi. In this respect, the evidence of Manzoor Hussain (P.W. 21)-is not only relevant, but essential. Manzoor Hussain was employed as the personal driver of Mr. Masood Mahmood, and was staying with him at the Canal Rest House, Multan, during the relevant period. In his evidence, Manzoor Hussain has denied to have driven Mr. Masood Mahmood to the house of Mr. Sadiq Hussain Qureshi at any time on November 11, 1974. But according to Masood Mahmood, when the A. D. C. of Mr. Bhutto later phoned him up, he went over to the house of Mr. Qureshi. There is no evidence on record to show, however, that Mr. Masood Mahmood had himself driven the car or had asked for a car from the house of Mr. Sadiq Hussain Qureshi. In these circumstances, it was the unavoidable burden of the prosecution to prove as to by what means he had gone over to the house of Mr. Qureshi. It seems to me to be absolutely extraordinary, however, that in a case of the present nature, the prosecution ought to have felt so satisfied about the bare word of Mr. Masood Mahmood (which in the case of an approver was in any event insufficient) as to ignore the basic need of proving his said claim (which was in the nature of a physical fact, and as such easily provable) that he had indeed gone over to the house of Mr. Qureshi to see Mr. Bhutto. In the face of this reality, therefore, the entire evidence of Mr. Masood Mahmood in respect of the said crucial aspect of the case must be held to have become doubtful, and so his said claim cannot be accepted.
Mr. Masood Mahmood has further claimed that when he returned to Rawalpindi (on November 11, 1974), Mian Muhammad Abbas met him and told him that his operation had been successful but instead of the intended victim his father Nawab Muhammad Ahmad Khan had been murdered at Lahore ; that later in the day he was summoned by Mr. Bhutto and when he went and met with him he found him “peeved and agitated” but even so he told him that the actual task had yet to be accomplished to which he replied “at your behest an idea conceived by you was carried out and communicated by me to Mian Abbas who hard already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to task by God Almighty, but I will not carry out any such orders anymore”.
Now when I come to consider the cross-examination of Mr. Masood Mahmood, my effort would be to show, amongst other things, that his said claim viz., to have met with Mian Muhammad Abbas, on his return to Rawalpindi from Multan, is absolutely untrue as on that day Mian Muhammad Abbas was at Peshawar from where he returned at about 7 p. m. on November, 12, 1974. Assuming for the present, therefore (as I have already said that for the analysis of his examination-in-chief, I would take it that whatever he has said therein is true subject of course to its being natural and probable) that his said claim is tenable, the essential question is whether it is acceptable? A bare look at his evidence would show that the same was carefully tailored and pre-orchestrated in order to suit the craving of his own psyche, for otherwise, it would be wholly unnatural for any witness (moreso in the case of an intelligent and sophisticated person like Mr. Masood Mahmood) to have deposed for example “at your behest an idea conceived by you was carried out and communicated by me to Mian Abbas who had already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to task by God Almighty”. Now by the said language used by him, it ought to be clear to anyone having the slightest insight into human nature that the object which he intended to achieve there by was : (1) to portray himself as an innocent agent ; (2) that he was a God fearing person and would be taken to task by God Almighty for his earlier indiscretion ; and (3) his defiant attitude in the presence of Mr. Bhutto refusing to carry out “any such orders anymore. The analysis of his evidence would show that at one moment, tie is pusillanimous, at another intrepid and yet at another a man of conscience and fully alive to the fear of God Almighty. The fact, however, is that if he neither had the slightest courage nor the elementary human decency to resist the pernicious influence of Mr. Bhutto and readily succumbed to his design to assassinate Mr. Ahmad Raza Kasuri, how can any reliance be placed on his evidence from the deck that he defied Mr. Bhutto in his presence and refused to carry out his order. Mr. Bhutto was still the powerful Prime Minister in ‘ 1974. ‘And so it would be ridiculous to believe Mr. Masood Mahmood that he could address him in the said manner and yet be able to continue as Director-General, FSF, for almost three years thereafter, until both of them were taken into custody by the Martial Law Authorities on July 5, 1977.
For similar reasons, it is difficult to believe him that after his said encounter with Mr. Bhutto, attempts were made on his life, threats were extended to him, attempts also were made to kidnap his children from Aitchison College, Lahore, and repeated attempts were made at the poisoning of his food. Apart from the fact that there is no evidence on record to show if any of the said attempts ever materialized, the said claim of M: Masood Mahmood again seems to be the product of his own psyche in order to portray himself as if he was constantly pursued and persecuted. But the same is patently absurd and unbelievable. If there was the slightest truth in his claim, the most natural and obvious course for him to adopt ought to hate been to ask for retirement, which was his due, but evidently he preferred to stay on in service without giving the slightest thought to the said possibility. Now this conduct of Mr. Masood Mahmood seems to reveal the contradiction of his own stand to the effect that he could not afford to lose his job because his children were small, etc. and yet he felt no hesitation `boldly’ to face the ever present threats with respect to his physical extermination by Mr. Bhutto, not realizing that his own extermination was bound to defeat the same very object, which he so dearly espoused, namely, the welfare of his sick wife and small children, for whose sake he had put with all the said persecutions. Furthermore, Mr. Bhutto, or for that matter, the persons detailed by him to kidnap his children and poison his food, seem to have been so incompetent as not to have been able to achieve their intended, object in spite of the vigorous zeal shown by Mr. Bhutto in that-behalf. If Mr. Bhutto was really a tyrant and blood thirsty a person, surely he ought to have had no difficulty in doing away with Mr. Masood Mahmood who had not only defied him in his face but refused to carry out his orders anymore. .
Having dealt with his examination-in-chief, in all its fundamental essentials, I would now take up his crass-examination to show that Mr. Masood Mahmood is not only an untruthful witness but the whole of his evidence is utterly unnatural and improbable. Before taking up this exercise, however, first I would like to deal with a question which seems to me to be of some importance in understanding his evidence. The record would show that at the initial stage of his cross-examination by Mr. D. M. Awan, about the background of his marriage, he replied that he was married in June 1961; that late Khan Bahadur Abdul Qayum was his father-in-law ; that he knew one Mr. Munawar Ali Khan, who was his contemporary in the Government College but did not know where he was working ; that he had no information if Munawar Ali Khan was employed with Messrs Mchinnon Machenzi Limited, Karachi ; that Mr. Munawar Ali Khan also was his colleague in the Air Force, but they have never been on visiting terms ; and that it was incorrect to suggest that whenever he visited Karachi, he paid a visit to the house of Mr. Munawar Ali Khan.
It seems that Mr. Bhutto was not satisfied with the recording of the said questions as well as the replies made thereto by Mr. Masood Mahmood, as in his lengthy application, dated 5-1-1978, he (m para. 19,(3) (i)) .expressed his grievance thus : “almost every day many pertinent material and relevant questions put by the defence counsel are either disallowed or overruled. The record, however, does not generally indicate that such questions were put to the witnesses. This is perhaps being done with a view to leaving petitioner with precious little to argue in appeal. For instance, on 24-10-1977, Mr. Masood Mahmood (P.W. 2), while in the witness-box stated” (referring to his evidence reproduced hereinabove) and proceeded to contend that “the following questions were put to him by the petitioner’s counsel :-
Q.-What is the name of your wife ?
Q.-Is it not a fact that prior to marrying you she was the wife of the said Munawar Ali Khan ?
Q.--I put it to you that you developed illicit relations with her during your visits to Munawar Ali’s house and then she got divorce from her husband and married you ?”
Mr. Bhutto maintained that Mr. Masood Mahmood had answered these questions by saying “Iffat was the name of his wife and that she was wife of Munawar Ali prior to her marriage with the witness. The witness denied only the last suggestion put to him. The Acting Chief Justice disallowed these questions and neither the questions nor the answers were brought on record. Since these questions reflected on the character and credibility of the witness they were not allowed to be brought on the record of evidence. The object of the questions was not to defame the wife of the witness, but to expose his veracity”.
The Court, vide order, dated 9-1-1978, dismissed the said application of Bhutto, but while dealing with his said objection, in para. (xiv) observed “it is clear that the questions referred to in para. 19 (3) (i) at page 24 of the petition are slanderous and have nothing to do with the testing of veracity of the witness. These questions furnish instances of irrelevant questions put by the learned counsel for the petitioner. It is not necessary that each question, however, irrelevant should be brought on record. Sometimes questions were noted and overruled, while at other times, though infrequently the learned counsel was directed to give the question in writing. This was done with the question that had absolutely no nexus with the case”. It would thus be seen that the High Court accepted the said allegation of Mr. Bhutto, although it disposed it of observing that the said questions were slanderous and had nothing to do with the testing of veracity of the witness. The legal position, however, is that under section 146 of the Evidence Act, in cross-examination, a witness may be asked any question which would tend-(1) to test his veracity ; (2) to discover who he is and what . is his position in life ; or (3) to shake his credit, by injuring his character, although the answers to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
The object of such questions has been explained by Monir, at page 1539 of his Law of Evidence. He says that the said questions “do not, strictly speaking, relate to relevant facts ; they are relevant only to the issue whether the witness should or should not be believed. In cases depending for decision on oral evidence, this issue, it need hardly be said, is the most important issue All questions tending to show that the witness has not told the truth, or that he is not likely to tell truth in the particular case, are permissible under section 146 (1) . Such questions fall more properly under the first clause to section 146 than under the third clause to that section, which seems to contemplate questions tending to show defects of moral character rendering the witness less likely to speak the truth. The chief factors governing a witness’s willing ness or otherwise to speak the truth are (i) bias, (ii) interest, and (iii) corruption. “Bias”, in common, acceptance, covers all varieties of hostility or prejudice against the opponent personally or of favour to the opponent personally. “Interest” signifies the specific inclination which is apt to be produced by the relation between the witness and the cause at issue in the litigation. “Corruption” is here to be understood as the conscious false intent which is inferable from giving or taking a bribe, or from expressions of a general unscrupulousness for the case in hand”.
Now the evidence of Mr. Masood Mahmood who claimed that Mr. Bhutto and Mr. Vaqar Ahmad both were his enemies, being entirely oral, all questions which tended to test his veracity and shake his credit were admissible under section 146 of the Evidence Act to show that he was unworthy of credit. Assuming, however, that the High Court was justified not to permit the putting of the said questions,, as in its view they were slanderous, even then only the last question, namely, “ I put it to you that you developed illicit relations with her during your visits to Munawar Ali’s house and then she got divorce from her husband and married you ?”, ought to have been disallowed by it, and not the first two questions, which were not only innocuous, but had a direct bearing as to the credibility of Mr. Masood Mahmood. The record would show that in the previous answers given by him, which had already been brought on record, Mr. Masood Mahmood Admitted that Munawar Ali Khan was his contemporary in the Government College, Lahore, as well as a colleague in the Air Force, but maintained that they had never been on visiting terms, nor indeed had he paid any visit to his house whenever he visited Karachi. In answer to the subsequent two questions, however, which were not brought on record, he admitted that the name of his wife was `Iffat’, and that previously she was the wife of Mr. Munawar Ali Khan. From this it should have been obvious that Mr. Masood Mahmood had deliberately prevaricated about the question of his said marriage for the evident reason of avoiding himself the public embarrassment, as otherwise why should he have denied to have ever met Mr. Munawar Ali Khan since they were together in College and the Air Force ?
Now in 1961, when he married the ex-wife of Mr. Munawar Ali Khan, Mr. Masood Mahmood was not only more than 40 years of age, but already had attained the high rank of an Additional Inspector-General Police, therefore, if he had no moral scruples to refrain from undermining the marriage of his close friend, just to satisfy his own cravings, surely the learned counsel for Mr. Bhutto had every right under section 146 of the Evidence Act to question him about his credit in order to reveal the seamy side of his character in an effort to urge upon the Court that he was unworthy of credit. I am, therefore, of the humble view that the High Court, with respect, ought not to have, after the learned counsel for Mr. Bhutto was able to elicit from Mr. Masood Mahmood answers to the said questions, refused to bring on the, record of the case the said answers which under section 146 of the Evidence Act were clearly admissible.
Now bearing in mind that Mr. Masood Mahmood is not only a self confessed criminal, but essentially lacks any serious regard for moral virtues, his evidence must be scrutinised with care and caution. To begin with he was questioned as to why he was appointed to the “punishment post”, namely, that of Managing Director, Board of Trustees Central Benevolent Fund and Group Insurance ? and he replied : “I had Knowledge of the fact that Arms and Ammunition had been given to lam Sadiq Ali and late Mr. Abdul Hamid Bajwa, for operations against the Burrs, in Sind. After this information became available to me, I noticed a certain amount of coolness in the dealings with me by the then Secretary and I think in order to ensure that I did not blurt out the secret, the Prime Minister sent Abdul Hamid Bajwa to me to keep my mouth shut. It was after a shortwhile that I. was transferred as Managing Director, Board of Trustees, Central Benevolent Fund and Group Insurance”. . His evidence, however, is that he had obtained this information as Additional Secretary Defence. But when questioned as to why did he not report the said matter to the Defence Secretary, or any other higher officer such as the Chief of the Army Staff, or the Prime Minister’s Secretariat ? he replied that since the Defence Secretary himself was involved in the said transaction, and he also was threatened by Mr. Bhutto, through. late Mr. Bajwa to keep his mouth shut, he was helpless. In answer to another question, however, whether the said. Arms and Ammunition were not supplied to Jam Sadiq Ali by the Chief of Army Staff in connection with the Defence Department ? he replied that he was not aware, but “as I walked into the Office of the Defence Secretary in one of my routine official visits I saw Jam Sadiq Ali and late Mr. Abdul Hamid Bajwa with the Defence Secretary in the chair having some crates of arms and ammunition being transferred through chaprosis to a car outside. The Defence Secretary looked rather embarrassed I would not have thought the deal to be unusual or unofficial had Mr. Abdul Hamid Bajwa sometime later, the same day, not seen me in my Office to say that the Prime Minister wanted me to keep my mouth shut about this transaction”. Now is nest all this ridiculous ? To say that the Defence Secretary to the Government of Pakistan, during the office hours and in broad daylight, would transact a shady deal with Jam Sadiq Ali and late Mr. Bajwa, by giving them the crates of arms and ammunition, and that too which the peons of the Office were made to carry to a car waiting outside, would be tantamount to doing violence to the basic human intelligence. It is plain to me that the said transaction (even if the same had actually taken place) was evidently official, and consequently there would be no occasion for the Defence Secretary to get embarrassed, unless Mr. Masood Mahmood was looking at every thing around him through rose coloured glasses. The truth of the matter, however, is that he was not serious about his said assertion, as in the same very answer he admitted that “I would not have thought the deal to be unusual or unofficial, had Mr. Abdul Hamid Bajwa sometime later, the same day, not seen me in my Office to say that the Prime Minister wanted me to keep my mouth shut about this transaction”. Quite apart from the fact that the alleged statement made to him by late Mr. Bajwa is not admissible in evidence under section 32 of the Evidence Act, which is the only section under which a statement made by a dead person would be admissible, the said claim of Mr. Masood Mahmood is patently ridiculous. Since the whole transaction conducted by the Defence Secretary with lam Sadiq Ali and late Mr. Bajwa was official (and I am saying this on the assumption that the same had really taken pace) there would be hardly any occasion for late Mr. Bajwa to carry to Mr. Masood Mahmood the message of Mr: Bhutto to the effect that he had better keep his mouth shut.
In order to prove that Mr. Masood Mahmood was an ambitious person, the learned counsel for Mr. Bhutto questioned him to the effect if in December, 1971, soon after Mr. Bhutto took over as the President and Chief Martial Law Administrator, he had informed Mr. Abdul Hafiz Pirzada on telephone that General Yahya and his compatriots were burning some important intelligence files? he first replied in the negative. But immediately volunteered and confirmed to have done so at which Mr. Pirzada told him that if the said information was found to be false he would have him beheaded. On the following morning General Ishaq, the Military Secretary to the President, rang him up saying that the said information conveyed by him was found to be correct and that the President appreciated his concern. The learned counsel, therefore, asked Mr. Masood Mahmood if he had asked Mr. Pirzada that he should be remembered for the services thus rendered by him, but he denied the suggestion.
Now by analysing this part of his evidence it is clear to me that although it was no part of his duty to convey to Mr. Abdul Hafiz Pirzada the said information, yet he took it upon himself to do so, as Mr. Pirzada was one of the most important colleagues of Mr. Bhutto. By saying this, however, I am not trying to belittle the efforts of Mr. Masood Mahmood in that behalf, but what has intrigued me is as to why as an Additional Secretary to the Government of Pakistan, he ought not to have informed his immediate boss, namely the Defence Secretary, or for that matter the Police or anyone of the Law and Order Enforcing .Agencies. I am, therefore, clear in my mind that by getting in touch with Mr. Pirzada, he was more motivated by the desire to curry favour with him, than by any sense of duty. Had this not been the case, first he would not have said `no’ to the unambiguous question put to him in that behalf, and then immediately contradicted himself by taking up the opposite position.
He also has admitted in cross-examination that within about five months of his taking over as the Director-General, FSF, he was promoted to Grade 22 ; that twice he was sent abroad on a study tour of the forces, equivalent to the FSF, in West Germany, Belgium, U.S.A., Japan and U.K, : that on his visits to Peshawar, Lahore and Karachi, sometimes he stayed in Intercontinental Hotels, occasionally in Delux Suites for which, however, he used to be charged only that amount which was admissible to him under the Government Rules, as the said concession also was available to other officers. In answer to a question, however, if he could name the said officers ? he replied that be would not like to name them.
It would thus be seen that within a short time of his appointment as the Director-General, FSF, he was promoted as Full Secretary, and- further that he had twice gone abroad on a study tour of U.S.A., Japan and the countries of Western Europe. From this it should be obvious that as Director-General, FSF, he not only fared well, but evidently advanced his fortune. As to his other claim, namely that the Intercontinental Hotels at Peshawar, Lahore and Karachi used to charge him the same amount which was admissible to him under the Government Rules, because the said concession also was available to other officers, all that can be said is that it is absurd. It seems to me that he was given to a luxurious mode of living, therefore, he either paid from his own pocket the normal rates at the said Hotels or else got for himself concession by abusing his official position. The main reason for which he claimed to have been meted out the said preferential treatment was because other officers also used to be treated similarly. But he refused to divulge their names. From this it should follow that if there was any truth in his said statement, he would have readily mentioned the names of other officers. I am, therefore, of the view that even in respect of this innocuous part of the case he had not told the truth.
Mr. Masood Mahmood was next cross-examined about the conspiracy entered into between him and Mr. Zulfiqar Ali Bhutto for the assassination of Mr. Ahmad Raza Kasuri. In answer to a question whether the said conspiracy had already been hatched before he took over as Director-General, FSF ?, he replied that Mr. Bhutto had told him, in no uncertain terms, that Mian Abbas, an officer in the FSF, had already been given directions in that behalf by his predecessor, namely. Mr. Haq Nawaz Tiwana. He, admitted, however, that for the execution of the said conspiracy he had provided no plan of his own to Mian Abbas, nor indeed had he told him as to how and from where he had to arrange the arms and ammunition. In answer to another question whether he knew, when he made his confessional statement on 24-8-1977, that the earlier attack made on Mr. Ahmad Raza Kasuri at Islamabad on 24-8-1974, was a part of the conspiracy ?, he replied that he had a “hunch” about it, and further that Mian Muhammad Abbas had informed him about the same when he told him of the murder of Nawab Muhammad Ahmad Khan. The learned counsel for Mr. Bhutto, who seems to have been dissatisfied with this part of his answer, confronted him with his confessional statement in which he had said “it is most likely that the incident of August, 1974 in which Mr. Ahmad Raza Kasuri was sniped at in Islamabad may have been an, earlier attempt before the accomplishment of the task resulting in the death of Nawab Muhammad Ahmad Khan” and asked him whether his said statement would in any way convey the feelings of his “hunch” ? and he replied that “in my way of thinking it does’ . He maintained, however, that the said part of his confessional statement proved that Mian Abbas had informed him about the earlier attack made on the life of Ahmad Raza Kasuri at Islamabad, as it was thereafter that Mr. Bhutto reminded him that nothing tangible had taken place (kuchh nahin huwa) by which he understood his inference, and consequently reminded Mian Abbas who replied “hukam ki tameel ho gi”, that is to say that the order shall be executed.
Now by analysing this part of his cross-examination, it should be evident that except for having reminded Mian Abbas to get on with the job of assassinating Mr. Kasuri, Mr. Masood Mahmood remained completely out of the picture. On his own showing he had neither given to Mian Abbas any plan about the assassination of Mr. Kasuri, nor indeed he had discussed with him as to how and from where he would procure the necessary arms and ammunition. In point of fact he was not even aware of the earlier attempt made on the life of Mr. Ahmad Raza Kasuri at Islamabad, for otherwise, how could he have said that he had a “hunch” about it, especially when after the murder of Nawab Muhammad Ahmad Khan, Mian Abbas had told him of the said attempt positively. Furthermore, his confessional statement, recorded long after his said talk with Mian Abbas, also would support the said conclusion, as in it he positively alleged “it is most likely that the incident of August, 1974 in which Mr. Ahmad Raza Kasuri was sniped at in Islamabad may have been an earlier attempt”. The words “likely” and “may have been” used by him in the said statement would clearly reveal that his claim was wholly untrue, and that his story of the so called conspiracy entered between him and Mr. Bhutto was simply the product of his own imagination, having no truth in it whatever.
His next claim is that after he met Mr. Bhutto at Quetta on 29-7-1974, he conveyed to Mr. Welch the orders given to him by the former, that during his visit to Quetta, Mr. Ahmad Raza Kasuri should be taken care of, meaning thereby that he should be assassinated. In his examination-in-chief, however, what he had said was, and with which he was duly confronted, that “before the Islamabad incident and after the Prime Minister had spoken to me, I was asked by the Prime Minister to take care of Mr. Ahmad Kaza Kasuri who was likely to visit Quetta. I gave directions to Mr. Welch, the Director of FSF at Quetta. I told Mr. Welch that some anti-State elements had to be got rid of and that Mr. Ahmad Raza Kasuri was one of them. I had also told him that he was delivering anti-State speeches and was doing damage to the interest of the country”.
Now this part of his cross-examination was evidently in conflict with what he had said in his examination-in-chief, therefore, the learned counsel for Mr. Bhutto questioned him in that regard and he replied that “I communicated to Mr. Welch on the telephone and also had an occasion to remind him personally when I visited Quetta--------------the sequence is not clear from my statement quoted in the question. Now that a specific question has been asked of me, about which I ‘state that I communicated orders to Mr. Welch after Mr. Zulfikar Ali Bhutto had asked me to take care of Mr. Ahmad Raza Kasuri, on the 29th of July, 1974. The telephonic conversation followed this event”.
Now a bare look at this statement of Mr. Masood Mahmood would make it clear that the said instructions were given to him by Mr. Bhutto at Islamabad, or some place other than Quetta. In fact. this is made clear in his examination-in-chief in which he said : “I communicated to Mr. Welch on the telephone, and I also had an occasion to remind him personally when I visited Quetta”. However, when he reached the stage of cross-examination, be evidently realised the frailty of his said claim with the result that he made a complete volte-face, and said that he had first talked to Mr. Welch at Quetta, after his meeting with Mr. Bhutto on 29-7-1974, and subsequently reminded him on phone from Rawalpindi. Now this conduct of Mr. Masood Mahmood is quite understandable, a; during those days Pindi and Quetta were not connected by the direct dialing system, and so it would be inconceivable that he would talk to Mr. Welch through the Exchange for the evident fear of being monitored by the operator on duty. Caught in this embarrassing position, and the learned counsel for Mr. Bhutto having relentlessly pursued him in crossexamination, the witness went on making confused statements such as “that I did say in my examination-in-chief that I communicated the orders to Mr. Welch in September, 1974, but on telephone. I think that I communicated the order to Mr. Welch on one occasion and reminded him on another the sequence is not clear from my statement-----------------Now that a specific question has been asked of me, about which I state that I communicated orders to Mr. Welch after Mr. Z. A. Bhutto had asked me to take care of Mr. Ahmad Raza Kasuri, on the 29th of July, 1974. The telephonic conversation followed this event----------It is correct that on one occasion I communicated the orders and on another I reminded him. I reminded him also in person and on the telephone certainly -------------------and the expression communicated something personally does include other means of communication also”. Now all this should make it clear that Mr. Masood Mahmood was at pains to get out of the embarrassing position in which he had placed himself, but even so the said exercise undertaken by him could not erase the effect of his clear and unambiguous assertion in examination in-chief to the effect that °’I communicated to Mr. Welch on telephone, and I also had an occasion to remind him personally when. I visited Quetta”.
His two T. A. Bills, namely, Exh. P.W. 2/9 and Exh. P.W. 2/10 would seem to support the said conclusion. These T. A. Bills cover the period between 18-7-1974 and 4-8-1974 when the witness visited Karachi, Sukkur, Larkana, Quetta and Lahore, back to Rawalpindi, again to Quetta and back to Rawalpindi. In Exh. P.W. 219 under the column “Purpose of journey or halt” the witness had stated “visited the Office of Director, FSF Key, was received in audience by the Prime Minister at Larkana. Looked into the affairs of the force and attended to the visit of Prime Minister to Baluchistan, met the Governor and Chief Minister Punjab at Lahore”. Now according to the relevant entries in Exh. P.W. 2/9, he had arrived at Larkana at 14-15 hours, on 20-7-1974, and had left for Sukkur the following afternoon at 13-15 hours. According to his own evidence, however, he had met Mr. Bhutto at Quetta a week thereafter, i.e. on 29-7-1974 and yet he omitted to mention the said fact in his T. A. Bills although he remembered to mention therein his earlier meeting with Mr. Bhutto at Larkana. Normally, I should have ignored the said omission but in view of the facts and circumstances of this case it cannot be ignored. Had the witness omitted to mention his meeting with Mr. Bhutto at Larkana then the non-mention by him of his meeting with Mr. Bhutto at Quetta would be just an omission. But the fact remains that while mentioning his meeting with Mr. Bhutto at Larkana evidently his mind was focussed on the said eventuality, and so if there was any truth in his statement that he had met Mr. Bhutto at Quetta on 29-7-1974, it would be inconceivable that he would forget to mention the same in his T. A. Bill Exh. P.W. 2/10, as the said meeting was the latest in the series as well as in point of time. Therefore, I have not the slightest doubt in my mind that the witness was not telling the truth due to a well-calculated motive.
Furthermore, it is in his evidence that he had given the said instructions to Mr. Welch in a meeting lasting for five minutes at the Lourdes Hotel, Quetta, when he was about to leave for the Airport. Apart from the fact that while giving Mr. Welch the said instructions he made no mention of the name of Mr. Bhutto, and so the evidence of Mr. Welch, in so far as the involvement of Mr. Bhutto is concerned, would be of no avail to the prosecution, the witness was cross-examined to show as to how well he knew Mr. Welch before giving him the said instructions. and he replied that he had met him once or twice .in meetings, and further that in a disciplined force it was not necessary for an officer to know his subordinate well before giving him an order. Now had the matter rested there, 1, would have readily agreed with the said explanation of Mr. Masood Mahmood; but the fact is that he and Mr. Welch both seem to have placed a sinister construction on the otherwise innocuous words “to take care of Mr. Ahmad Raza Kasuri” to mean to assassinate him. In this view and specially the type of witness Mr. Masood Mabmood is, it would be difficult to accept his said statement, which under the circumstances seems to be improbable and unnatural. To say that it would be unnecessary for a senior officer to know his subordinate well, before he is asked to execute an order, is one thing; but an order to assassinate a citizen, and that too a member of the National Assembly of Pakistan is another. I am, therefore, of the firm view that in the first place Mr. Masood Mahmood, who knew Mr. Welch almost casually, could not have conveyed him the said instructions in a chance meeting lasting for about five minutes, and in the second place the said instructions, even if he had given them to Mr. Welch, were meant only “to take care of Mr. Ahmad Raza Kasuri” meaning thereby that the type of person he was, surveillance should be kept on him during his stay at Quetta, as the whole of Baluchistan was then in a state of insurgency, so that he may not come in contact with the insurgents or to create Law and Order situation for the Government.
This conclusion finds ample support from the evidence on record. In his evidence (see page 71 of Volume I of the Evidence), Mr. Masood Mahmood has clearly stated that before the Islamabad incident, and after the Prime Minister had spoken to him, he was asked by the latter “to take care of Mr. Ahmad Raza Kasuri, who was likely to visit Quetta. I gave directions to Mr. Welch, the Director of FSF at Quetta. I told Mr. Welch that some anti-State elements had to be got rid of and that Mr. Ahmad Raza Kasuri was one of them”. Now it is evident that what Mr. Bhutto had told Mr. Masood Mahmood was “to take care of Mr. Ahmad Raza Kasuri” but Mr. Masood Mahmood seems to have conveyed to Mr. Welch (without mentioning the name of Mr. Bhutto, however,) that Mr. Kasuri “had to be got rid of”. Not only this, but when we come to the evidence of Mr. Welch, he has given yet another version of the instruction given to him by Mr. Masood Mahmood saying (see page 286 of Volume 1 of the Evidence) that what he had told him was that since Mr. Kasuri had been making obnoxious speeches against Mr. Bhutto, “he should be eliminated”. From all this, it should, therefore, follow that in so far as Mr. Bhutto is concerned al’ that he had told Mr. Masood Mahmood was “to take care of Mr. Ahmad Raza Kasuri” possibly meaning thereby to keep a watch on him during his stay at Quetta (as the Province of Baluchistan was then in a state of insurgency) in order to prevent him from coming into contact with the insurgents. Ironically, however, Mr. Masood Mahmood and Mr. Welch both seem to have placed a sinister construction on the said instruction of which they are not even remotely susceptible. With very great respect to the High Court, however, reliance has been placed on the said evidence of the two witnesses .without scrutinizing it in the proffer context with the result that the consequent finding recorded by it has worked to the prejudice of Mr. Bhutto.
The High Court also has relied against Mr. Bhutto on the Intelligence Reports (Exh. P.W. 2/1 and Exh. P.W. 2/2) submitted by Mr. Welch to Mr. Masood Mahmood and the correspondence exchanged between him and the former, namely, Exh. P.W. 2/2 and Exh. P.W. 2/3. All these documents have already been discussed by me (while discussing the prosecution case as to the motive) and consequently it would be unnecessary to go over the same process again. In none of these documents, either read severally or together, is there anything to show the incriminating conduct :of Mr. Bhutto. But with respect, the High Court again has used them against Mr. Bhutto, without subjecting them to proper scrutiny so as to exclude the possibility that they could as well be explained on the basis of another reasonable hypothesis.
Mr. Masood Mahmood also has admitted in cross-examination that on his second trip to London, in connection with his medical check-up, and to undergo a likely operation if the doctors so advised, he was allowed to take his wife as an official attendant ; that both of them had, in pursuance of the necessary arrangements made in that behalf by the Pakistan Embassy, stayed at the Intercontinental Hotel ; that during his stay in London, he did purchase two pairs of spectacles (fitted with the hearing aid) for £400 ; and that the total expenses incurred by him and his wife during their said stay was about Rs. 50,000. In answer to a question if the price of the said two pairs of spectacles was paid by the Government ? he replied that the said question was still under examination when he was taken into custody on July 5, 1977. Having said this, however, the learned counsel for Mr. Bhutto confronted him with a letter written by the Pakistan Embassy, to the Interior Division of the Government of Pakistan, to the effect that the price of the said two pairs of spectacles had been paid by the Government, to which he agreed. It would thus be seen that before he was confronted with the said letter, the witness had conveniently confused the issue by saying that the question of the payment of the said pairs of spectacles was still under consideration, when he was taken into custody, which was evidently untrue. Furthermore, it is clear that he (alongwith his wife as his official attendant) was allowed to go to London for medical check-up ; that both of them stayed at the Intercontinental Hotel in pursuance of the arrangements made in that behalf by the Pakistan Embassy ; and that the fees of his doctors also seems to have been paid by the Government, as in answer to a question put to him in that behalf he replied : “I do not remember the amount paid to the doctors I consulted”. Now considering that this is his own evidence, can it be said that Mr. Bhutto was his enemy ? It seems to me that the word `enemy’ has the opposite connotation with the witness, for otherwise the Government of Mr. Bhutto would have not only refused him the said VIP treatment but surely not expended the tax-payers’ money on him so lavishly as to enable him to purchase for himself the two unique pairs of spectacles fitted with hearing and for the huge amount of £400. The High Court seems to have noticed all this evidence ‘ in para. 66 of the judgment. But with respect, did not give any finding thereon one way or another.
His evidence further is that on the specific directions given to him by Mr. Bhutto, in addition to the police escort, he used to detail plain clothed men from FSF to escort his children whenever they travelled in motor transport. Now if Mr. Bhutto was really his enemy, could he have trusted the men from FSF ? and that too when his children also used to be escorted by the Police. I am afraid that by the type of evidence given by Mr. Masood Mahmood, he has evidently trampled on his own credibility as a witness, and so how can any Court believe him ?
His evidence next relates to his meeting with Mian Muhammad Abbas on November 11, 1974. He deposed in examination-in-chief that “soon after that, when I returned to the Headquarters Mian Abbas informed me and reported to me that his operation had been successful”. In his cross., examination also he substantially maintained the same position, except that for the expression “soon after” used by him in his examination-in-chief, he employed the expression ` immediately”. Now the admitted position which transpires from his evidence is that he had arrived at Rawalpindi from Multan on November 11, 1974, and met with Mian Muhammad Abbas “soon after” or “immediately”. It thus happened, however, that Mian Muhammad Abbas was not. present at Rawalpindi on November 11, 1974, as he had gone to Peshawar on the previous day (see his T. A. Bill Ex. P.W. 4/10) from where be-returned to Rawalpindi sometime in the late evening on November 12, 1974. The learned counsel for Mian Muhammad Abbas, therefore, questioned him as to at what time on November 11, 1974, he had met Mian Muhammad Abbas at Rawalpindi ?, but he started confusing the issue by saying “I do not recall the exact time when I contacted Mian Muhammad Abbas in this connection after my return from Multan to Rawalpindi. I do not remember if I went straight to my office from the Islamabad Airport or I had gone to my house. I do not remember if I had met Mian Muhammad Abbas on 11th or 12th of November, 1974”. With this reply of his, naturally, the learned counsel was not satisfied, and in order to compel him to take up a positive position he questioned him further to the effect : “you did not contact Mian Muhammad Abbas either on 11th or the 12th of November, 1974 ?” and he replied “I do not recall exactly. I do not remember if I went to my office on ) 2th of November, 1974”. Now in the context of his positive assertion that “soon after” or “immediately” after his arrival he met with Mian Abbas (not realizing of course that Mian Abbas was away at Peshawar), the said replies given by him not only clearly unmask the rather unethical side of his character, but also bring into bold relief the evident scheme of his prevarication. His further claim to the effect that in the said meeting with Mian Muhammad Abbas, the latter told him that Nawab Muhammad Ahmad Khan had been killed at some place at Gulberg, Lahore, seems to support me in the said conclusion, as the said gentleman had been killed at the roundabout of Shah JamalShahman Colony, Lahore, which has no nexus or contiguity with the .area of Gulberg at all.
Now this is all the evidence of Mr. Masood Mahmood in its essential features. I have designedly first dealt with all the crucial aspects of his examination-in-chief and then with his cross-examination to show that each piece of his evidence is either unnatural and improbable or does no have the ring of any truth about it. In spite of this exercise, however, if there is still any doubt about his evidence the same ought presently to disappear in view of the ensuing discussion about the omissions, contradictions and improvements made by him therein from time to time. Both in his confessional as well as the approver’s statement (recorded on August 8, 1977 and September 14, 1977, respectively), Mr. Masood Mahmood has not said a word that on November 11, 1974, when he and Mr. Bhutto both were camping at Multan, the latter phoned him up in the very early hours of the morning saving “your Mian Muhammad Abbas has made complete balls of the situation, instead of Mr. Ahmad Raza Kasuri he has got his father killed”; that thereafter Mr. Bhutto called him through his ADC to the house of Mr. Sadiq Hussain Qureshi and repeated to him the same thing ; that on his return to Rawalpindi on November 11, 1974, he was summoned by Mr. Bhutto who told him that Mr. Kasuri had yet to be assassinated, but he replied “at your behest an idea conceived by you was carried out and communicated by me to Mian Abbas who had already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to task by God Almighty, but I will not carry out any such orders anymore” ; that thereafter “attempts were made on my life, threats were held out to me, attempts were made to kidnap my children from the Aitchison College, Lahore, there were repeat performances of poisoning my food at Chamba House, Lahore, where I discovered that some of my subordinates seemed to have been bought over or won over as I had seen them lurking around” ; that after the Islamabad incident of August, 1974, in’ which an abortive attempt was made on the life of Mr. Kasuri, Mr. Bhutto reminded him that nothing tangible had taken place (kuchh nahin huwa) ; that in his very first meeting with Mr. Bhutto the latter had told him to make the FSF a deterrent Force meaning thereby that the people of Pakistan,.his Ministers, M.N.As. and M.P.As. should fear it; that the after incident of June 3, 1974, between Mr. Bhutto and Mr. Kasuri in the National Assembly of Pakistan; the former sent for him and told him that he was fed up with the abnoxious behaviour of Mr. Kasuri ; that Mian Muhammad Abbas knew all about his activities as he had already been given-instructions through the previous Director-General, FSF, to get rid of him : that he should ask Mian Muhammad Abbas to get on with the job and to produce the dead body of Mr. Kasuri or his body bandaged all over ; that he had told Mr. Welch that some anti-state elements had to be got rid of ;that Mr. Ahmad Raza Kasuri was one of them as he had been delivering anti-State speeches ; that he had conveyed the said instructions to Mr. Welch on the telephone, as also in person when the later met hire at Quetta ; and that when he returned to Rawalpindi on November 11, 1974, Mian Muhammad Abbas met him and told him about the earlier incident of Islamabad in which an’ attempt was made on the life of Mr. Kasuri. Similarly in his confessional statement he has not said a word that in his very first meeting with Mr. Bhutto, the latter asked him to make available to him the FSF for :-
(a) breaking up of the political meetings ;
(b) harassment of personages both in his own party and the opposition ; and
(c) the induction of plain clothed men in the public meetings addressed by him to swell the crowds..
Now relying upon these omissions, which were claimed to be tantamount to contradictions, within the meaning of section 145 of the Evidence Act, the learned counsel for appellant Bhutto contended in the High Court that the evidence of Mr. Masood Mahmood (in which he had deposed to the said omissions for the first time in Court), was clearly untrue and no reliance could be placed on it. This contention, which was rejected by the High Court, has been dealt with in paras. 378-381.
But it would be proper to reproduce at this stage paras. 380 and 381 which read as under;
“380. It is true that sometime an omission may have the force of at inconsistent or contradictory statement and may be used for the purpose of impeaching the credit of the witness but such cases are rare. A witness may omit to furnish details in his previous statement or the previous statement may be absolutely devoid of details. The omissions of details do not amount to contradiction. They may have the force of contradiction only if the witness omits to refer to anything in the previous statement which he must have mentioned in it in the circumstances of a particular case.
381. The question whether an omission amounts to contradiction was considered in Ponnuswanu v. Emperor (A I R 1933 Mad. 372 (2). It was pointed out in that case that whilst the bare omission can never be a contradiction a so-called omission in a statement may sometimes amount to a contradiction, for example, when to the police three persons are stated to have been criminals and later at the trial four are mentioned. This statement of law by Burn, J., is clearly based upon the principle that in order to amount to inconsistency the omission must be of such material fact which the witness would not have omitted to state.”
Now the principle of law laid down in these two paras., with respect, seems to be generally right except for the reliance therein on the view taken b5 Burn, J., to the effect that an omission in a previous statement can never be tantamount to a contradiction. Monir, has at page 1524 of the Law of his Evidence (1974 Edition) taken note of the said view of the learned Judge and commented upon it as follows;-----
“In a Madras case it has been remarked by Burn, J., that it is impossible to state a case in which an omission may amount to a contradiction ; but is submitted that the prosecution cannot be laid down as broadly as the learned Judge lays it down.”
Respectfully, I agree with this view of the learned author just as I feel inclined to agree with his further views recorded by him at page 1523 of his treatise to the following effect;
“A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. But it is wrong to suppose that all omissions are contradictions. It must be left to the Court in each particular case to decide whether the omission in question amounts to a contradiction or not ----- An omission in order to amount to a contradiction must be material. Thus where a prosecution witness deposes in Court that the accused gave a blow on the head or implicates the accused in his deposition before the Court but did not mention such before the police, the omission would amount to contradiction.”
Similar view has been taken in Abdul Hashem v. The State (1969 P Cr. L J 491) ; Ekubbar Ali and 10 others v. The State (1971. P Cr. L J (Dacca) 275 ) ; Hazara Singh and others v, Emperor (1), Ram Bali and others v. State (2), Parikhit Thapa v. Nidhi Thapa and others-(3) and many other judgments which, however, may not be reproduced. Now the fact, however, is that after having laid down the correct principle to the (effect as to when an omission would amount to a contradiction, the High Court proceeded to observe (see para. 378 of the judgment):--
“These authorities are distinguishable since the dictum laid down therein would apply only to a case where a witness has specifically made a statement in his earlier statement which is said to be contradictory to the statement made during his examination at the trial. It cannot be applied to a case where the statement made at the trial was not made at the earlier stages and is a mere omission as distinguished from a contradiction.”
Now evidently, this finding of the High Court is not only clearly inconsistent with the finding recorded by it in paras. 380 and 381 (supra) of the judgment, but the High Court did not even consider the effect of the said omissions from the confessional statement as well as the approver’s statement of Mr. Masoud Mahmood one way or another, for the reason that perhaps the omission, in question being simply in the nature of details would not amount to contradictions. Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor has supported the said finding of the High Court, inter alia, on the grounds : (A IR 1928 Lah. 257) that for an omission to amount to a contradiction, the evidence of the witness in Court must be shown to be inconsistent with his previous statement. For example, if the witness has deposed to something for the first time in Court, which however, was not mentioned by him in his previous statement, he would be wholly consistent and hence the said omission would not amount to a contradiction ; (A I R 1952 All. 289) that in some cases an omission in a previous statement may amount to a contradiction, e. g. where what is actually stated by the witness in Court is not reconcilable with the said omission ; and (A I R 1954 Orissa 31) that similarly if the witness in Court has asserted the existence of a fact `A’ but in his previous statement had asserted fact `B’ then evidently he would be inconsistent and he would be deemed to have contradicted himself. The learned counsel argued that the actual test which should be applied in all such, eventualities is to go through the previous statement as well as the evidence of the witness recorded in Court and see if the assertions made by him therein about - any fact in issue or a relevant fact are inconsistent and not reconcilable. If by the said examination, it is found that he has indeed been inconsistent only then he can be said to have contradicted himself and not otherwise. In support of his contention, the learned counsel relied on some of the cases cited by the other side as also on Balmokand v. Emperor (A I R 1915 Lah. 16), Badri Chaudhry and others v. King-Emperor (A I R 1926 Pat. 20), Iltaf Khan v. Emperor (A I R 1926 Pat. 362), In re : Guruva Vannan (A I R 1944 Mad. 385), Abul Monsur Ahmad and another v. State (P L D 1961 Dacca 75) and Wigmore on the Law of Evidence (1970 Edition), page 154. By going through these judgments, however, they seem to be either distinguishable or of no help to the learned counsel. In A I R 1915 Lah. 16 each and every omission in the previous statements of witness Dina Nath had been noted, but the learned Judges took the view that these were in the nature of mere details as in respect of most of them, the witness had made assertions in the said statements although in his evidence in Court he explained them by furnishing additional details ; in A I R 1926 Pat. 20, the main question which was discussed was whether the statement of witnesses recorded under section 161, Cr. P: C. could be used for the purpose of cross-examining the witnesses not merely to show contradictions (for which purpose alone it could be used) but also for the purpose of showing (which was impermissible in view of the express language of the first proviso to section 162, Cr. P. C.) that the said statements did not corroborate or assist the story as put forward in the first information report ; in A I R 1926 Pat. 362 the view taken was that all omissions in the previous statements would be tantamount to contradictions, but with respect this was not the correct view and therefore, rightly dissented from in A I R 1928 Lah. 257 ; in A I R 1944 Mad. 385 the question was whether omissions in the statement of the witness, recorded in the police diary, to which however, he deposed during the trial, would be tantamount to a contradiction, and it was rightly held that it would not because all that an Investigating Officer was required to do was to make a short record therein of what the witness examined by him had said, without recording the unimportant details ; and that in P L D 1961 Dacca 753, the question of omissions amounting to contradictions, was not considered, in fact tire only question considered therein was the effect of the non-supply to the accused copies of the statements recorded under sections 161 and 164, Cr. P. C. It would thus be seen that all these judgments are distinguishable.
As regards the Law of Evidence by Wigmore, the Edition relied upon by the learned Special Public Prosecutor is not available, but I have been able to lay my hands on an older Edition printed in 1940, at page 1042 of which would be found the relevant discussion under the heading “Silence, Omissions, or Negative Statements, etc.” The statement of the principle recorded thereunder and in support of which a large number of cases have been quoted, is : “A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle of Evidence------There may be explanations, indicating that the person had in truth no belief of that tenor ; but the conduct is `prima facie’ an inconsistency much depends on the individual circumstances, and in all of them the underlying test is. Would it have been natural for the person to make the assertion in question ? At page 1044, under the heading “Explaining away the Inconsistency”, it is said “in accordance with the logical principle of Relevancy-----the impeached witness may always endeavour to explain away the effect of the supposed inconsistency by relating whatever circumstances would naturally remove it. The contradictory statement indicates on its face that the witness has been of two minds on the subject, and therefore that there has been some defect of intelligence, honesty, or impartiality on his part ; and it is conceivable that the inconsistency of the statements themselves may turn out to be superficial only, or that the error may have been based not on dishonesty or poor memory but upon a temporary misunderstanding. To this end, it is both logical and just that the explanatory circumstances, if any,, should be received”. It would thus be seen that this statement of law from the American Jurisprudence is not only in complete harmony with the case-law quoted by the learned counsel for appellant Bhutto, but also with the views expressed by Monir already quoted in the earlier part of this discussion.
The learned Special Public Prosecutor, however, relied on the majority judgment of the Indian Supreme Court : Tahsildar Singh and another v. State of U. P. (AIR1959SC1012), in support of his said contention. Now in that case the main question for decision was to consider the true scope of the first proviso to section 162, Cr. P. C., as well as the extent to which the statement of a witness recorded under section 161, Cr. P. C. could be used at an inquiry or trial in respect of any offence under investigation at the time when the said statement was recorded. From this it would be seen that the judgment is not really relevant to the present discussion, as here I am dealing with the confessional statement as well as the approver statement of Mr. Masood Mahmood to which -the restrictions contained in the first proviso to section 162, Cr. P. C. have no application. However, the only point on which the said judgment would seem to be somewhat relevant is the construction of section 145 of the Evidence Act, which being applicable to all previous statements of a witness, may be reproduced :-
“145. Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved ; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
The view taken by the majority in the said judgment, and here I would confine myself to the discussion of the second part of the said section, was “though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but it is deemed to form part of the recorded statement”. In order to make the point clear, the learned Judges gave a number of examples such as -in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness-box he says that he saw A and C stabbing B at the same point of time ; in the statement before the police the word “only” can be implied, i. e. the witness saw A only stabbing B”. The essence of the finding of the majority, therefore, is that before a witness can be confronted with a part of his statement recorded under section 161, Cr. P. C. to contradict him on what I he had deposed from the witness-box, it must be shown that there actually existed in both of them his positive assertions which, however, are inconsistent with each other. Omissions from his said 161, Cr. P. C. statement, of what he has deposed from the witness-box, would not amount to a positive assertion and therefore, he cannot be confronted with his said statements for the purpose of contradicting him on his evidence in Court.
The two learned Judges, who constituted the minority, disagreed with the said finding of the majority. The essence of their finding is that “the statements of witnesses may and do comprise numerous facts and circumstances, and it happens that when they are asked to narrate their version over again, they omit some and add others. What use can be made of such omissions or additions is for the accused to decide, but it cannot be doubted that some of the omissions or additions may have a vital bearing upon the truth of the story given. We do not think that by enacting section 162, in the words used, the Legislature intended a prohibition of cross-examination to establish which of the two versions is an authentic one of the events as seen by the witness. The use of the words “reexamination” and’ “cross-examination” in the same proviso shows that cross-examination is contemplated or in other words, that the manner of contradiction under S. 145 of the Indian Evidence Act comprises both cross-examination and contradiction. Indeed, the second part is only the final stage of the contradiction, which includes the earlier stages. Reexamination is only permissible where there is cross-examination -------------The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. Not only is it the right of the accused to shake the credit of a witness, but it is also the duty of the Court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule ---------If the section is construed too narrowly, the right it confers will cease to be of-any real protection to the accused, and the danger of its becoming an impediment to effective cross-examination on behalf of the accused is apparent”.
With respect, I am rather, inclined to agree with the view taken by the minority in that case. Now if the view taken by the majority is said to have laid down the correct law, the obvious result would be that if a witness has said nothing in his previous statement about a vital fact relating to the occurrence, to which however, he subsequently deposed in his evidence during the trial, then he cannot be confronted with the said omission to show that he had contradicted himself. This in my humble view would not only run counter to the basic norms of criminal jurisprudence, but evidently work to the great prejudice of an accused. For example, the fact in issue in a case is if A had travelled on a flight which was hijacked in the midair by certain bravados. The claim of A is that he was indeed a passenger on the flight but, in his 161, Cr. P. C. statement he had made no mention of the said hijacking event, although in his evidence in Court he mentioned it with confidence. Now can it be said that the event of said hijacking was not the most unforgettable thing which should have been present to the mind of the witness to mention in his 161, Cr. P. C. statement ? Examples such as this can be multiplied. But according to the view taken by majority, the witness in the hijacking case could not be confronted with his 161, Cr. P. C. statement to show that he had contradicted himself in respect of the most vital part of the case only because no mention of the said event had been made by him therein.
Be that as it may, unlike the case before the Indian Supreme Court in which section 145 of the Evidence Act was narrowly construed, because of the language of the first proviso to section 162, Cr. P. C., namely, “in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the, Evidence Act”, here I am dealing (as I have already said) with the confessional statement as well as the approver statement of Mr. Masood Mahmood in respect of which the prohibition of cross-examining a witness in relation to his 161, Cr. P. C. statement (as held by the majority in that case) would not be applicable. A further distinction between the language of the said proviso to section 162, Cr. P. C. and section 145 of the Evidence Act is that whereas under the former the witness can be confronted only with a part of his 161, Cr. P. C. statement (and that too if duly proved) in order - to contradict him, there is no such restriction under the latter section which says that a witness may be crossexamined as to his previous statements provided they are in writing or reduced into writing, and without such writing being shown to him or being proved. However, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Now Mr. Masood Mahmood was extensively cross-examined as to his two previous statements to show if he had mentioned therein the said various omissions about which for the first time he deposed in Court and he agreed that he- had not mentioned them. Evidently, therefore, his replies in the said cross-examination would be covered under the first part of section 145 as well as under section 155 (3) of the Evidence Act, to which no objection can be taken. The learned Special Public Prosecutor, however, would not agree with this conclusion. His contention was that Mr. Masood Mahmood could not be cross-examined generally in respect of his previous statements so as to make him agree that he had made therein no mention of the said various omissions, as the same could only be brought on the record of the case by confronting him with those parts, by which it was intended to contradict him. In this respect, he relied on the second pert of the said section saying that being specially applicable to the said eventuality, should be preferred to the first part of it which was general in nature. I am afraid, there is no force in this contention. If the contention of the learned counsel is accepted, evidently the first part of section 145 of the Evidence Act would become meaningless and thereby the intention of the Legislature would stand defeated. It is a well-settled principle of construction that each part of a section must be so construed as to make it workable and meaningful: Now bearing this principle in mind, both parts of section 145 of the Evidence Act must be given their proper effect, and thus it cannot be said that Mr. Masood Mahmood could not have been cross-examined as to his previous statements under the first part of the section. It is true that under the second part of the section, he was confronted with his entire said two statements, because in them no mention was made of the said various omissions, and to that extent the requirement of the said part, namely, “his attention------ must be called to those parts of it”, was seemingly contravened but in substance this is not the position. 1f by the examination of the said various omissions made by him in his two previous statements, it can be said that they were so fundamental in character that he ought to have made a mention of them therein then the requirement of the second part of the section also would in view of all the preceding discussion as well as the minority judgment of the Indian Supreme Court stand satisfied.
Now in none of his said previous two statements he had made any mention of the fact that on November 11, 1974, when he and Mr. Bhutto both were camping at Multan, the latter phoned him up in the very early hours of the morning saying “your Mian Muhammad Abbas has made complete balls of the situation, instead of Mr. Ahmad Raza Kasuri he has got his father killed”; that thereafter Mr. Bhutto called him through his A. D. C. to the house of Mr. Sadiq Hussain Qureshi and repeated to him the same thing ; that on his return to Rawalpindi on November 11, 1974, he was summoned by Mr. Bhutto who told him that Mr. Kasuri had yet to be assassinated but he replied “at your behest an idea conceived by you was carried out and communicated by me to Mian Abbas who had already your directions through my predecessor and the fact remains that both you and I and my subordinates will be taken to task by God Almighty, but I will not carry out any such orders anymore” ; that thereafter attempts were made on his life, threats were held out to him, attempts were made to kidnap his children from the Aitchison College, Lahore, and there were repeated performances at poisoning his food at Chamba House, Lahore, where he discovered that some of his subordinates seemed to have been bought over or won over as he had seen them lurking around ; that after the Islamabad incident of August, 1974, in which an abortive attempt was made on the life of Mr. Kasurr, Mr. Bhutto reminded him that nothing tangible had taken place (kuchh nohin huwa) ; that in his very first meeting with Mr. Bhutto, the latter had told him to make the FSF a deterrent Force meaning thereby that the people of Pakistan, his Ministers, M.N.As. and M.P.As. should fear it ; that after the incident of June 3, 1974 between Mr. Bhutto and Mr. Kasuri in the National Assembly of Pakistan, the former sent for him and told him that he was fed up with the obnoxious behaviour of Mr. Kasuri ; that Mian Muhammad Abbas knew all about his activities as he had already been given instructions through the previous Director-General, FSF, to get rid of him ; that he should ask Mian Muhammad Abbas to get on with the job and to produce the dead body of Mr. Kasuri or his body bandaged all over ; that he had told Mr. Welch that some anti-State elements had to be got rid of ; that Mr. Ahmad Raza Kasuri was one of them as he had been delivering anti-State speeches ; that he had conveyed the said instructions to Mr. Welch on the telephone, as also in person when he later met him at Quetta; and that when he returned to Rawalpindi on November 11, 1974, Mian Muhammad Abbas met him and told him about the earlier incident of Islamabad in which an attempt was made on the life of Mr. Kasuri.
Now without labouring much, on this part of his evidence, it ought to be clear to anyone, that the witness had perjured himself. Ii there was the slightest truth in his evidence, it is inconceivable that Mr. Masood Mahmood would have failed to mention the said monumental facts in his two previous statements, especially when he claimed to have entered into conspiracy with Mr. Bhutto to assassinate Mr. Ahmad Raza Kasuri during the execution of which, however, the highly respectable and elderly father of Mr. Kasuri was assassinated.
Incidentally, the confessional statement made by Mian Abbas not only does not support Mr. Masood Mabmood, but clearly undermines the case of the prosecution. The main thrust of the prosecution has been that Mr. Masood Mahmood teas made to agree by Mr. Bhutto for the assassination of Mr. Ahmad Raza Kasuri through the FSF under threats and by exercising over him undue influence. Mr. Masood Mahmood went to his office in a perplexed’ state of mind, called Mian Abbas and conveyed to him the message of Mr. Bhutto. Mian Abbas not only showed no sign of embarrassment, but told Mr. Masood Mahmood that the said order would be carried out because the same had already been conveyed to him by the former D.G., FSF. In his confessional statement, however, Mian Abbas has taken up the opposite position. The assertion made by him therein is that Mr. Masood Mahmood called him into his office, and told him that he had assigned a task to approver Ghulaill Hussain and that he should supervise him. Mian Abbas, accordingly, called Ghulam Hussain and enquired from him about the nature of the said assignment and he told him that it was for the assassination of Mr. Kasuri. It should be obvious, therefore, that the confessional statement of Mian Abbas instead of being of any help to the prosecution, has struck at the very foundation of its case. I am, therefore, of the view that this piece of evidence has snapped the chain of the prosecution’s case in the forging of which great effort was evidently expended.
Having reached this conclusion, the next question is whether there is any need to seek the corroboration of the evidence of Mr. Masood Malimood. Mr. Yahya Bakhtiar, the learned counsel for appellant Bhutto, has relied on quite a few judgments and contended that once the evidence of an approver is found to be unnatural, improbable and untrue, there would be no need to seek the corroboration of his evidence and his evidence must be rejected. He argued that in law this approach has come to be known as a ‘double test’ and relied in that behalf on the following judgments;
Doctor Muhammad Bashir v. The State (P L D 1971 S C 447), Sarwan Singh Rattan Singh v. State of Punjab (A 1 R 1957 S C 637 ), Luchhi Ram v. The State of Punjab (AIR 1967 S C 792), Piara Singh v. The State of Punjab (A I R 1969 S C 961); Babuli v. The State of Orissa (AIR 1974 S C 775), Noor Zaman Khan v. Mt. Maimunnissa Bibi and others (A I R 1958 Orissa 228), State of Bihar v. Srilal Kojriwal and others (A I R 1960 Pat. 459), Sharaf Shah Khan and others v. State of Andhra Pradesh (A I R 1963 Andh. Pra. 314 ), Balmokand v. Emperor (AIR 1915 Lah, 16) and Chatru Malak v. Emperor (A I R 1928 Lah. 681).
The’ learned Special Public Prosecutor, however, joined issue with Mr. Yahya Bakhtiar on the said question and in that behalf relied on Major E. G. Barsay v. State of Bombay (A I R 1961 S C. 1762). He argued that the theory of `double test’, in relation to the appreciation of an approver’s evidence is misleading because an approver is a competent witness under the lair and all that the law requires is that his evidence should not be believed unless it is corroborated in material particulars. With respect, this is precisely what the `double test’ means in respect of the scrutiny of the evidence of an approver. It is true that an approver is a competent witness, but under section 114 (b) of the Evidence Act the Court is entitled to presume that he is unworthy of credit unless corroborated in material particulars. Now according to section 3 of the Evidence Act a fact is said to be proved when, after considering the matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it
exists. It is evident, and in fact this is what section 3 of the Evidence Act says, that a fact has to be proved by oral as well as documentary evidence permissible under the Evidence Act. It should, therefore, follow that if the evidence of a witness in proof of a fact in issue has to be evaluated by the Court to see if the same is shown to exist or considers its existence s probable that a prudent man ought, under the circumstances to act upon the supposition that it exists then the same principle would be applicable to the scrutiny of the evidence of an approver who is just another witness. Furthermore, this test would seem to be common to all witnesses regardless of their social standing and reputation of unblemished character, therefore, how can a better privilege be claimed in respect of an approver o whom the law itself has cautioned the Court not to accept his evidence unless it is corroborated in material particulars. Seen in this context, the ought to be no quarrel with the theory of ‘double test’. Unlike an ordinary and truthful witness, an approver is stamped by the law with the stigma o doubtful credibility, with the result that as a rule of prudence, which has almost hardened into a rule of law, the Courts have invariably considered it dangerous to act or his uncorroborated evidence. In other words, if by the scrutiny of the evidence of an approver, it is found to be natural and probable even then the Court must look for its cotro6oration which in the case of an ordinary witness would be unnecessary.
It would be interesting to note that in essence the theory of ‘double test’ was first expounded, without using the said expression though, about sixty years ago in A I R 1915 Lah. 16 from which the following passage (appearing on page 22) may be reproduced :--
“Turning to the merits of the case one cannot help seeing that the most important matter for consideration is the evidence of Dina Nath, P. W. No. 3, the approver, and the questions that here arise are----Is his story substantially true ? Is it materially corroborated ? Apart frotp corroboration by independent evidence, does it contain in itself intrinsic indications its truth ? --------------- I will first consider the question of the value of Dina Nath’s evidence taken by itself apart from direct corroborative evidence.”
It is true that the expression `dame test’ was used for the first time in A I R 1957 S C 637. But evidently this cannot be said to have blazed a new trail in the field of jurisprudence, because the same ground had already been traversed in the said Lahore judgment. I am; therefore, in respectful agreement with the views taken in all the judgments cited by Mr. Yahya Bakhtiar, in which the theory of ‘double test’ in relation to the appreciation of an approver’s evidence has been expounded.
A I R 1961 S C 1762, relied on by the learned Special Public Prosecutor does not help him. Now apart from the fact that the said judgment, which was delivered by two learned Judges, could not overrule the earlier judgment reported in A I R 1957 S C 637 which was delivered by a larger Bench, the evidence of the witness Lawrence by name in that case was not treated by the learned Judges themselves as that of an approver, as it should be clear from the following dictum :----
“We must also make it clear that we are not equating the evidence of Lawrence with that of an approver ; nor did the Special Judge or the High Court nut him exactly on that footing.
Furthermore, the view taken by the learned Judges was that in most of the cases the evidence of an approver and the corroborative pieces of evidence would be so interconnected that it would not be possible to give a separate treatment, for as often as not the reliability of an approver’s evidence, though not exclusively, would mostly depend upon the corroborative support it derives from other unimpeachable pieces of evidence. With great respect to the learned Judges, however, this finding cannot be said to have laid down the correct law, for no notice was taken by them of section 3, as well as section 114 (b) of the Evidence Act in respect of which enough has already been said by me in the earlier part of this discussion.
In support of this conclusion, it would suffice to say that the view taken in the earlier judgment of the Indian Supreme Court : A I R 1957 S C 637 has been consistently followed not only by the said Court itself but also by the various High Courts of India. Evidently, therefore, the judgment relied upon by the learned Special Public Prosecutor must be held to be of no use to him.
In fairness to the prosecution, however, and considering that extensive and elaborate arguments were addressed from the bar on almost every point arising from the evidence, it may yet be useful to see if there is any evidence on record to corroborate the evidence of Mr. Masood Mahmood. The learned Special Public Prosecutor has relied in that behalf on the evidence of Mi. Saeed Ahmad Khan, and Mr. M. R. Welch as well as on the subsequent conduct of Mr. Bhutto. Enough has already been said by me, while discussing the motive-part of the case of the prosecution about the evidence of the said two witnesses, as well as the evidence relating to the subsequent conduct of Mr. Bhutto. But all the same some treatment of it would still seem to be necessary, although the field already covered should be avoided. By the analysis of his evidence, I have already held that Mr. Saeed Ahmad Khan is an untruthful witness. In finding him so, I have tested his oral testimony in juxtaposition with the large number of documents on which he relied and thus the rest of his oral evidence must be rejected. Furthermore, his evidence is streaked with potential improvements practically on each and every material part of the case of the prosecution in respect of which, however, he had made no mention in his 161, Cr. P. C. statement (Exh. P. W. 41/3-D) as well as confessional statement (Exh. P. W. 10/16-D), respectively recorded on September 3, 1977 and September 4, 1977. Now in his said two statements he had made no mention of the fact that when Mr. Bhutto phoned him up from Larkana or Karachi about the proceedings going on before the Tribunal headed by Shafi-ur-Rehman, J. of the Lahore High Court, “that I should meet the Advocate-General, the Chief Secretary, I.-G. Police and the Investigating Officers and look into the case” : similarly in connection with his alleged dialogue with Mr. Bhutto about the type of weapons used in the murder of Nawab Muhammad Ahmad Khan he deposed in his evidence that “he snubbed me and said in so many words, `Keep out the FSF’, but no such thing was said by him in his two previous statements : similarly during his said dialogue with Mr. Bhutto, he claimed in his evidence that “the Prime Minister further directed me to find out from the Joint Army Detection Organization (JADO), a part of the Inter-Services Intelligence Directorate, whose main task was to find out and control illicit traffic in arms in the country”, but again he had made no mention f any such thing in his said previous statements ; similarly in his evidence Court he deposed that “on receiving letter Exh. P. W. 3/3-C I got perplexed because in it was mentioned that the Chinese weapons are in the use of the FSF and f had been given positive instructions by the Prime Minister that FSF be kept out”, but again no mention was made by him of any such thing in his previous statement, similarly in his evidence in Court he claimed “I had no other alternative but to go back to the Prime Minister and I met him and showed him this D. O. letter of the Defence Secretary and enquired as to whether this letter was to be produced before the tribunal”, but nothing of this was mentioned by him in his previous statement ; similarly he deposed in Court “on that Mr. Bhutto got infuriated and said, `Have :I sent you to safeguard my interests or to incriminate me ‘‘ This letter will certainly be not produced before the tribunal. You are trying to become over-clever and if you don’t behave you will suffer the consequences which your progeny will not forget’ “, but again no such thing was mentioned by him in his said two previous statements ; similarly he deposed in Court “as far as I recollect it was somewhere in the middle of 1975, when there was a rift brewing up between Ahmad Raza Kasuri and the Tehrik Chief, Air Marshal (Retd.) Asghar Khan, I was instructed by the Prime Minister that I should try to win over Ahmad Raza Kasuri and bring him back to the PPP fold”, but again no such thing was mentioned by him in his said two previous statements ; similarly he deposed in Court “I told him that I did not know Ahmad Raza Kasuri personally, but I will ask Mr. Bajwa to initiate the matt and I was told by Mr. Bhutto that Mr. Bajwa has already been instructed in this matter”, but again nothing of this was said by him in iris previous two statements ; similarly he deposed to a question put to him in Court “What steps did you take to get in touch with Mr. Ahmad Raza Kasuri ?” and he replied: “As I have said earlier, Mr.’ Bajwa initiated talks with Mr. Ahmad Raza Kasuri on the subject and persuaded him to come and see me”, but again no such thing was said by him in his two previous statements ; similarly he deposed in Court about his, meeting with Mr. Kasuri : “The first meeting took place and he came to my house at Rawalpindi, and after that I had met him at his house in Model Town at Lahore. As far as I recollect the subsequent meetings took place at my house at R W P.”.. but no such thing was mentioned by him in his previous statements ; similarly he deposed in Court -In the first meeting, I asked him that since he had parted company with Air-Marshal Asghar Khan of the Tehrik-i-Istiqlal, he might consider joining the PPP, as he claimed to be a Founder Member”, but again nothing of this was said by him in his previous statements : similarly he deposed in Court “On this. Ahmad Raza Kasuri turned round and said that “how could he join the party of which the Chairman was Mr. Z. A Bhutto who had been responsible for the murder of his father and was after his blood”, but nothing of this was said by him in his said two previous statements, similarly he deposed in Court “I told him that it was all the more reason that he should make up with Mr. Bhutto and not put his life in jeopardy as he knew that he was a marked man”, but again nothing was said by him in his previous statements : similarly he deposed in Court “I also told him that he is a young bright person with a future and if he rejoins the PPP he may even be rehabilitated”, but nothing of this was said by him in his previous statements ; he similarly deposed that “on this, Mr. Ahmad Raza Kasuri told me that. he may be given sometime to think it over”, but again nothing of this was said by him in his previous statements ; sad similarly he deposed in Court “He came back to me after a few days and told me that my suggestion was sound and that 1 may inform the Prime Minister that he is prepared to join the PPP, and would like to meet Mr. Bhutto”, but again nothing of this was said by him in his said two previous statements. Now all these pieces of evidence were taken notice of by the High Court in paras. 79, 82, 491, 492, 493, 494, 495, 496, 505, 540 and 570 of the judgment and used against Mr. Bhutto.
The grievance of Mr. Yahya Bakhtiar, the learned counsel is that all the said improvements made by Mr. Saved Ahmad Khan for the first time in his evidence in Court are so fundamental and prominent that they ought to have been present to his mind when his 161. Cr. P. C. statement as well as the confessional statement were recorded. He, therefore, contended that the witness had evidently perjured himself. There seems to be force in his contention. A casual look at each one of the said improvements made by Mr. Saved Ahmad Khan for the first time in Court would show that if there was the slightest truth in them they ought to have been present to his mind when he made the said statement, as evidently they are so prominent that he could not have possibly failed to mention them in his said statements. I am, therefore, of the view that in line with the relevant discussion already made in connection with the similar aspect of the evidence of Mr. Masood Mahmood, all the said improvements made by Mr. Saeed Ahmad would be tantamount to contradictions within the meaning of section 145 of the Evidence Act. Now by taking into consideration the said contradictions, there ought to be no doubt in anyone’s mind that he is not a truthful witness and consequently no reliance can be placed upon his evidence.
The further difficulty in the way of the prosecution is that Mr. Saeed Ahmad Khan is an `accomplice’ or at any rate in the nature of an `accomplice’ as his role has been that of an `accessory after the fact’. The learned Special Public Prosecutor, however, does not agree with this conclusion. He argued that whatever role was played by Mr. Saeed Ahmad Khan in the investigation of the case was that of an innocent agent of Mr. Bhutto, as he was not aware that the latter himself was responsible for tire assassination of Nawab Muhammad Ahmad Khan. I am afraid the evidence on record, and the manner in which the said evidence has been treated in the High Court, shows the contrary position. It is true that in para. 469 of the judgment, the High Court has held Mr. Saved Ahmad Khan to be an independent witness, but it would be necessary to take note of paras. 207, 502, 505 and 506 of the judgment in which, amongst other things, the High Court held that “Although this exercise in fishing for local disputes and political rivalries was to change the venue of investigation in order to exonerate the real culprits, yet it is important to note that despite concentrating all his efforts in conducting the investigation on the lines directed by Saeed Ahmad Khan, P. W. 3, Malik Muhammad--------------Waris completely, failed to make any headway ---------------it is, therefore, proved beyond any shadow of doubt that the guidelines given by the principal accused to Saeed Ahmad Khan and communicated by him to P. W. 15 were not correct and were not given for the purpose of helping the discovery of the actual culprits. The purpose of these guidelines and direction was only to lead the Investigating Officer astray------In view of the evidence about the use of Chinese weapons of 7.62 mm. calibre which were in the use of the Federal Security Force, the Investigating Officer ought to have taken his investigation into the ranks of the force but the efforts of the principal accused and his Officers, namely, Abdul Hamid Bajwa and Saved Ahmad Khan P. W. 3, were to keep the Federal Security Force as well as the principal accused out of the reach of the Investigating Officer”.
With this finding, which is supported by evidence, I respectfully agree. The learned Special Public Prosecutor, however. argued that this finding would make Mr. Saved Ahmad Khan at best an `accessory after the fact’, but it would not make him an ‘accomplice’ under ‘the Law of Pakistan which says that an `accomplice’ must be shown to be a particeps criminis in the crime with which the accused is charged. In support of his contention he relied on a large number of cases out of which only some may be quoted :-Nga Pauk v. The King A I R 1937 Rang. 513, Ramasn-ami Goundan v. Emperor (I L R 27 -Mad. 271), Jagannath v. Emperor (A I R 1942 Oudh 221;), Ghudo anti another v. Emperor (A I R 1945 Nag. 143), The Crown v. Ghulam Rasul and others (AIR 1950 Lah. 129) and Narain Chandra Biswas and others v. Emperor (A I R 1936 Cal. 101).
As against this, Mr. Yahya Bakhtiar, the; learned counsel for Mr. Bhutto contended that the concept of as `accessory after the fact’ is now so well established in the legal system of this country that it cannot be doubted. He argued that in view of the said finding recorded against him by the High Court Mr. Saeed Ahmad Khan was an `accomplice’ or at any rate in the nature of an `accomplice’ and therefore, his evidence cannot be accepted unless the same is corroborated in material particulars. In support of his contention he also relied on a large number of judgments out of which the following may be quoted :-Begu and others v. Emperor (A I R 1925 P C 130), Mahadeo v. The King (A I R 11936 P C 242), Mahikilili Dhalamini and others v. The King (AIR 1943 P C 4), Ashutosh Roy v. The Sate (A I R 1959 Orissa 159 ), Pt. Darshan Lal and another v. Munnoo Singh and others (A I R 1937 Oudh 258), Gopi Nath Singh v. Emperor through Suraj pal Singh (A I R 1948 Oudh 130), Musafar v. The Crown (P L D 1956 F C 140) and Vemireddy Satyanarayon Reddy and others v. State of Hyderabad (P L D 1956 S C (Ind.) 280).
Now before considering the two sets of judgments relied upon by the learned counsel for the parties, it may be stated that expressions `accessory before the fact’ and ‘accessory after the fact’ have not been defined in the Evidence Act, P872, but in view of the language of section 337, Cr. P. C.1 section 201, P. P. C. sections 133 and 11;4 (b) of the Evidence Act, 1872, the Courts as well as the commentators on the Evidence Act have felt no difficulty to spell out the existence of the said concepts in the legal system operating in the Indo-Pak Sub-Continent. 1n this behalf reference may usefully be made to the following comments appearing at page 1451 of the Law of Evidence by Monir (1974 Edition) :-
“Accessories before and after the fact. The term accomplice includes all persons who have been concerned in the commission of a crime, all particeps criminis whether they are concerned in strict legal
propriety as principals in the first or second degree, or merely as accessories before or after the fact. It is well settled that all accessories before the fact, if they participate in the preparation for the crime, are accomplices ; but if their participation is limited to the knowledge that crime is to fee committed, they are not accomplices. Whether a person is or is not an accomplice, therefore, depends upon the facts in each particular case considered in connection with the nature of the crime ; and persons, to be accomplices, must participate in the commission of the same crime as the accused persons in a trial 4s charged. But it has been held in some Indian decisions that an accessory after the fact is not an accomplice. Thus, it has been held that a witness who merely assists in removing or disposing of the body of the deceased without in any way being privy to the murder, is not an accomplice of the murderer. But a person who knows all about the proposal to murder and is a consenting party to it is in the position of an accomplice. The circumstances that the deceased met his death at the hands of the accused in the presence of his wife who was probably in love with the latter and that she made no attempt to prevent the commission of the offence do not, in the absence of evidence to show that she shared with the accused the intention to kill the deceased, render her, an accomplice whose evidence requires corroboration. In some cases from India, the Privy Council has treated an accessory after the fact in the same way as an accomplice in the matter of corroboration. Thus it has been held that a person who gives medicine to the murderers for the purpose of purifying them from the killing is an accomplice. A person who opens the door to the murder and then helps him to burn the corpse is clearly an accomplice. A receiver of stolen property is not necessarily an accomplice of the thief. But a person who knowingly aids in the disposal of the stolen property is an accomplice.”
Now these comments of the learned author, in which support is available for the contentions urged by both sides, clearly brings out the legal position obtaining in the Indo-Pak Sub-Continent as to who is an `accomplice’ or for that matter an ‘accessory before the fact’ or an ‘accessory after the fact’. From the various judgments cited by the learned counsel for the parties the same position emerges. But the question is as to why there has not been any unanimity of views in that behalf ? By going through the said various judgments what I have noticed is that in one set of them the view taken has been that an `accessory after the fact’ must be shown to have been a conscious particeps crimixis in the same crime with which the others are charged in order that he could be jointly tried with them ; and in the other that any conscious step taken by him such as shielding the actual criminal, or disposing of the dead body, or destroying any evidence relating to the crime would be sufficient to hold him an ‘accessory after the fact’, although not a particeps criminis. Now the view taken in the first set of judgments is readily understandable because if an ‘accessory after the fact’ whose trial would fall under section 201, P. P. C. is jointly tried with the actual criminal, say, accused of a murder, it is bound to lead to complications because an accessory after the fact’ would be incompetent to appear as a witness against the other and give evidence on oath. This in my view would seem to be the ratio of all the said judgments. In the other set notice does not seem to have been taken of this difficulty, because in view of the peculiar facts of each case the Courts were not confronted with any such situation. In all of them the only question before the Courts was whether an ‘accessory after the fact’ who was not being jointly tried with the actual criminal, could be said to be an `accomplice’ and consequently his evidence unacceptable without corroboration in material particulars. It would thus be seen that in the two sets of judgments, the point in issue was not really the same, although observations would be found in each set one way or another.
I am of the humble view that the concept of an ‘accessory before the fact’ and an ‘accessory after the fact’ has not only been known to the Courts of the Indo-Pak Sub-Continent for more than a century, but the same position must be maintained as otherwise it is bound to lead to startling and disturbing consequences. If the contention of the learned Special Public Prosecutor is accepted, it would mean that a person, though not a particeps criminis, say, in the commission of a murder, disposes o the dead body with a view to aiding the actual assassin yet he would not be an `accessory after the fact’, and hence not an `accomplice’. It is true that under section 201, P.P.C., he may be tried for having dis. posed of the dead body, but what about the actual culprit? It is conceivable that he also may be arrested and sent up for trial, but look at the complications which might very well arise in many cases in which due to the disposal of dead body, it would be difficult if not possible, to secure the conviction of the accused.
Furthermore, what is the basic function of a Court of Law in a criminal case ? . To do justice, I suppose, isn’t it ? It is true that justice has to be done according to law. But then if the Courts of Indo-Pak Sub-Continent have over the long period of a century, taken the view that an `accessory after the fact’, though not particeps criminis, would be no better than an `accomplice’, I feet that the said view, which is based on pragmatism and juridical wisdom, ought to be respected for the safe administration of criminal justice-specially in view of the declining moral standards and the perjured evidence which is frequently offered in the Courts of Law. Now take the case of a person, who not being a particeps crimin is in the same crime consciously destroys the evidence relating to the crime can it be contended on his behalf that at least he was no biased in favour of the actual culprit ? Faced with such a situation the essential question to which the Court must address itself is whether the evidence of a witness of that type can be accepted without corroboration, and not that he could be jointly tried with the actual culprit. It is in this context that the ratio of the second set of judgments relied upon by Mr. Yahya Bakhtiar must be seen. But before notice is taken of them, reference may again be made to the Law of Evidence by Monir, at page 1453 of which appears the following observations :-
“Witnesses no better than accomplices.-----Though there is no warrant for the extreme proposition that if a man sees the perpetration of a crime and does not give information of it to any one else, he might be regarded as an accomplice and could be put in dock with the actual criminals, yet a person who sees a murder committed but gives no information of the fact, or who is cognizant of the commission of an offence, and keeps quiet, is no better than an accomplice. A witness who sees the crime being committed, assists in, or connives at, concealing the evidence of that crime, and does not attempt to give any information to the police ox any other person to enable the offenders to be brought to justice, is no better than an accomplice. A witness, who assisted the criminals to the extent of keeping a look-out to see whether the police were approaching, is in the position of an accomplice. An accessory after the fact is virtually an accomplice and his evidence requires very careful scrutiny and corroboration. Thus a person who harbours the offender after the commission of the crime is no better than an accomplice.”
In support of these observations, the learned author has quoted a large number of judgments in the footnote of his said treatise with which I respectfully agree. However, coming to the judgments relied upon by Mr. Yahya Bakhtiar, the first case of which notice may be taken is Mahadeo v. The King (AIR 1936PC242). In that case a boy of 13 years of age was murdered by the appellant in the presence of witness Sukraj who was, however, found to have helped the appellant in the disposal of the dead body. Upon these facts it was held by the Privy Council that Sukraj plainly was an ‘accessory after the fact’ and hence his evidence could not be accepted without corroboration. The same view was reiterated by the Privy Council in the subsequent judgment: Mahilkilili Dhalamini and others v. The King (AIR1943PC4).
Judgments also-are not wanting from the various High Courts of the Indian Sub-Continent to the same effect : see for example: Ashutosh Roy v. The State ( A I R 1959 Orissa 159), Pt. Darshan Lai and another v. Munnoo Singh and others (A I R 1937 Oudh 258), Gopi Nath Singh v. Emperor through Surajpal Singh (A I R 1948 Oudh 130), The State v. Jamalan and others (P L.D 1959 Lah. 442 ). In A 1 R 1959 Orissa 159 an objection was taken to the competency of certain witnesses and it was held “They are clearly ‘accessories after the fact’, and a Court must insist on adequate corroboration of their testimony before it can sustain the conviction”. Not only this but the same view has been taken in Musafar v. The Crown (P L D 1956 F C 140), Vemireddy Satyanarayan Reddy and others v. State of Hyderabad (P L D 1956 S C (Ind.) 280). In the case before the Federal Court, two of the witnesses were found to have helped in the disposal of the dead body of the murdered man and it was held that they were no better than `accomplices’ but since there existed on the record of the case sufficient corroboration of their evidence they were believed. In the case before the Indian Supreme Court, however, the said principle seems to have been enlarged, as m there all that was found against the witness was that having seen the commission of the crime he gave no information about it to anyone else. Upon these facts it was held, “he might well be regarded in law as an accomplice. However the evidence of such a witness should be scanned with much caution and the Court must be fully satisfied that he is a witness of truth, especially when no other person was present at the time to see the murder. Though the witness was not an accomplice, the Court would still want corroboration on material particulars because the person being the only witness to the crime it would not be safe to hang the accused on his sole testimony without the certainty that he is speaking the truth.”
It would thus be seen that the concept of an `accessory after the fact’ has been accepted both by the Privy Council, the Indian Supreme Court as well as the Federal Court of Pakistan. In this view; all the judgments cited by Mr. Ijaz H. Batalvi from the various High Courts of the Indian Sub-Continent, as well as from the- High Court of Burma, must be held to have been overruled.
Furthermore, each one of the said judgments is distinguishable for the following reasons :- I L R 27 Mad. 271 was not a unanimous judgment as Boddam, J., wrote a dissenting note observing that a person assisting in the disposal of a dead body or concealing the evidence was no better than an `accomplice’. This judgment was subsequently cited before the Chief Court of Oudh in Brijpal Singh v. Emperor (A I R 1936 Oudh 413) and the learned Judges followed the view taken by Boddam, J. ; A I R 1937 Rangoon 513, no doubt supports the learned counsel, but that judgment was based on the majority view taken in I L R 27 Mad. 271 ; in A I R 1942 Oudh 221, the witness, who was an ekka driver, was made to carry the accused in his ekka by the show of threats. Evidently, he was not an `accomplice’ at all, but even so it was observed therein that ‘accessories before and after the fact’ `accomplices’ ; in A I R 1945 Nag. 143, the facts were somewhat unique. In that case under the Himalian’ authority of a Police Head Constable all the villagers were made to participate in beating the deceased and watching the disposal of the dead body, under the threats extended to them by the said Police Officer. It was found as a fact; however, that these simple villagers lived in a far-flanged area of India, and in the nature of things could not resist the authority of the said Officer. Therefore, when some of them appeared as witnesses, against the said Officer during .his trial, objection was taken to their competency, but the same was overruled, as none of them were found to have any bias or personal grudge against him. Now from this it should be obvious that whatever role the witnesses had played in the beating of the deceased or in watching the disposal of his dead body was under the threats extended to them by the said Head Constable and so they could not be termed as `accomplices’ ; in A I R 1950 Lah. 129, the witness, Mst. Zainab Bibi by name, was found to have been threatened and locked up in a room when the accused committed the murder. However, when the accused, after disposing of the dead body, returned to the house and released Mst. Zainab Bibi, she informed the Police of the incident. Upon these facts, therefore, she was rightly held not an `accomplice’ ; in A I R 1936 Cal. 101, it was held that the persons, who had not taken any part in the actual commission of any overt acts, were merely the sympathizers of conspirators, and aware of the existence of the conspiracy between them. Upon these facts, therefore, it was rightly held that they were not only not `accessories before the fact’ but not `accessories’ at all.
I am also inclined to agree with Mr. Yahya Bakhtiar, which is his alternate argument that if Mr. Saeed Ahmad Khan does not strictly fall within the category of `accomplices’, he is no better than an `accomplice’ and so his evidence would need corroboration. In this respect he relied, tit amongst others, on A 1 R 1937 Oudh 258 ; A I R 1948 Oudh 130 ; A I °°1959 Orissa 159 ; P L D 1956 S C (Ind.) 280 ; P L D 1956 F C 140 and P L D 1959 Lah. 442.
By going through these judgments, they do seem to support the contention of the learned counsel. Furthermore, Mr. Saeed Ahmad Khan was ‘not an ordinary witness as not to realize the consequences of his acts and conduct. He had served as a senior Police Officer for umpteen (?) years, having attained the status of an I-G. of a Province, and yet he continued to interfere with the investigation of the case with a view only to shield the actual assassins of Nawab Muhammad Ahmad Khan. I am, therefore, of the view that the complement given to him by the learned Special Public Prosecutor as an innocent agent’ of Mr. Bhutto seems to be clearly unwarranted. On the contrary, he seems to be an ‘accomplice’, or at any rate in. the nature of an `accomplice’, therefore, his evidence cannot be accepted without corroboration. The fact, however, is that there is no evidence on record to corroborate him and consequently his evidence cannot be accepted.
This leaves us with the evidence of Mr. 114. R. Welch (P.W.4). Enough has already been said by me about his evidence, under the topic of motive, and I have disbelieved him. The basic reason for which I have disbelieved him is that in the casual meeting held between him and Mr. Masood Mahmood, lasting just about five minutes, at the Lourdes Hotel, Quetta, when the latter was leaving for the Airport, Mr. Masood Mahmood could not have possibly given him the instructions to assassinate Mr. Ahmad Raza Kasuri during his forthcoming visit to Quetta, as he knew him only casually. In any event, by the examination of the secret reports submitted by him to Mr. Masood Mahmood, and the correspondence exchanged between them, his oral testimony given by him in the Court has been disbelieved by me, as the said documentary evidence is not only inconsistent with the evidence but the same seems to documentary clearly innocuous, was exchanged in routine and thus has nothing in it, which would support the case of the prosecution.
Mr. Yahya Bakhtiar has, however, taken serious objection .to the evidence of Mr. Welch. He argued that being a Christian by faith, Mr. Welch ought to have been sworn in the witness-box on Bible and not on solemn affirmation. The fact, however, is that he was a worn on solemn affirmation and consequently his evidence has to be disregarded. I am afraid, I am not inclined to go into this question, as there is nothing in the evidence of Mr. Welch to show that he was put any question about his faith. Furthermore, his evidence does not seem to help the case of the prosecution, firstly because there is nothing in it to show that when Mr. Masood Mahmood gave him the said instructions he had told him that the same had come from Mr. Bhutto, and secondly because he admitted in his evidence that it was a part of his duty to keep an eye on the activities of all political leaders ; that it was also his duty to keep a watch on all politicians, including the fact where they resided, that reports Exhs. P.W. 2/1, P.W. 2/3 and P.W. 2/4 were submitted by him to Mr. Masood Mahmood in the normal routine of his duties ; that it was also a part of his duty to report to the FSF Headquarters at Rawalpindi in case he found that a political leader had left the place of his residence during the night ; and that the Head Office had not questioned him, as to why he replied to the letter written to him by Mian Muhammad Abbas (Exh. P.W. 2/2) after the delay of about one and a half months. Now these admissions made by the witness would seem to be forthright and truthful, as they are in complete harmony with the said documentary evidence. But strangely in his examination-in-chief in Court he seems to have placed a sinister construction on the said documentary evidence to the effect “I had no intention of committing heinous murder and had to find a plausible excuse for not executing the orders of Mr. Masood Mahmood. I took refuge in the fact that Mr. Ahmad Raza Kasuri was well protected and made this my excuse. I had hoped that Mr. Masood Mahmood would read between the lines and find the reason why I had not complied with his orders”.
Apart from the fact that the sinister construction placed by him on the said documents, being in the nature of his own opinion, which the. said documents do not even remotely bear, it is obvious to me that by making the said statement he was simply obliging the prosecution. It may be noted that while narrating the details of his conversation at the Lourdes Hotel, Quetta, between him and Mr. Masood Mahmood, he was questioned in examination-in-chief “did he mention the name of Mr. Ahmad Raza Kasuri” ? and the Court rightly disallowed the said question. Unfortunately, however, the learned Public Prosecutor was allowed to ask him the very next question to the effect “did he mention any pgrticular name” ? and he replied “he had mentioned the name of Mr. Ahmad Raza Kasuri, M. N. A. and had stated that he had been obnoxious in his speeches against Mr. Bhutto, the then Prime Minister, and he should be eliminated”. With respect to the High Court, it ought to have realised that after having disallowed the learned Public Prosecutor from putting to the witness the said leading question about Mr. Ahmad Raza Kasuri, he again should have been prevented from asking the next question, as by then the witness knew full well as to what exactly was he expected to answer.
I am further of the view that Mr. Welch also is an `accomplice’ or at least in the nature of an `accomplice’ (see P L D 1956 S C (Ind.) 280), and consequently his evidence, which in any event is of no help to the prosecution, cannot be accepted without corroboration. It is the case of the prosecution that in view of the instructions given to him at Quetta by Mr. Masood Mahmood for the assassination of Mr. Kasuri, Mr. Welch had done all which under the .circumstances was possible, but his efforts did not fructify because Mr. Kasuri seldom stayed in the room which was reserved for him at the Lourdes Hotel. It is very well to say, as Mr. Welch has no doubt said in his evidence in the High Court, that he had no intention to carry out the said instructions given to him by Mr. Masood Mahmood, but there is nothing in his evidence, or for that matter in any part of the evidence on record to support his said claim. It should be borne in mind that being a senior officer of somewhat sophisticated background, he ought to have not only resisted the said pernicious influence exercised over him by Mr. Masood Mahmood, but shown some regard for the law of the land as contained in section 44 of the Code of Criminal Procedure under the warrant of which every person is obliged forthwith to give information to the nearest Magistrate or a Police Officer if he is aware of the commission of or of the intention of any other person to commit, amongst others, any offence punishable under section 302, P. P. C. Furthermore, under section 7 (3) (a) of the F,S.F. Act, 1973, as Director FSF, he was deemed to be an Officer Incharge of a Police Station, therefore, it was his bounden duty under section 149 and section 150 of the Code of Criminal Procedure to, frustrate the plot of the assassination of Mr. Ahmad Raza Kasuri, and not to facilitate its execution. In this view, even if his evidence was acceptable, it would need corroboration in material particulars. But there is no such evidence to corroborate him.
The High Court also has held (see para. 431 of the judgment) that the actual crime empties Were substituted by Mian Muhammad Abbas with a view evidently to putting the investigation into the wrong channels, so that any suspicion about the involvement of the FSF in the murder of Nawab Muhammad Ahmad Khan and Mr. Bhutto both could be effectively avoided. In recording the said finding the High Court has relied on the evidence of P.Ws. Abdul Wakil Khan, Muhammad Bashir, Muhammad Sarwar, Abdul Ikram, Fazal Ali, Lt.-Col. Zawar Hussain, Abdul Hayee Niazi, Nadir Hussain Abidi, as well as a large number of documents. By going through the said voluminous evidence, however, I have not been able to agree, and I say so with respect, with the view taken by the High Court because (1) the evidence of the said witnesses is unnatural, t improbable and does not inspire confidence ; (2) that in essential features, their respective evidence is made up of improvements ; and (3) that most” of the documentary evidence is not only equivocal in nature but also is not entirely convincing. The learned Special Public Prosecutor also seems to have realized the infirmity of the finding of the High Court, as (quoting him verbatim) this is what he contended during the arguments : .
‘I am not in a position to say positively that there is positive evidence of substitution but there is mass of evidence to suggest . substitution. Delay and other circumstances prove that empties recovered lost all authenticity -----------------My submission is, that there is no theory. There is a high probability that the empties had been changed. The evidence as to high probability has to, be looked at in the totality of the picture. There is a case for strong inference that the empties had been changed.”
Franxly, I should have, therefore, desisted from going into the said voluminous evidence but all the same I am tempted to deal with the evidence of at least those witnesses who, because of their respective positions, had played the central role in the said transaction. Abdul Hayee Niazi (P.W. 34), who is one such witness, seems to have laid the foundation in his evidence for the substitution of the actual crime empties saying that at 9/10 p.m. on November 11, 1974, “Abdul Ahad, D.S.P., who had his Office adjacent to the Police Station, told me to accompany him to Rao. Abdur Rashid, I.-G. Police’s residence. The DSP informed me that the I.-G. had ordered for the production of 24 empty cartridges, lead bullet and cap of the deceased. The DSP put the 24 empty cartridges and the lead bullet in a `Service’ envelope. He also had the cap of the deceased and we reached the I.-G.’s residence in the jeep. I and the driver kept sitting in the jeep while the DSP entered the I.-G.’s. residence with the articles mentioned above. The DSP returned after about half an hour and till then we kept sitting in the jeep. The DSP informed me that I.-G. Police had kept the 24 empties and lead bullet with him and had returned the clip. The DSP further informed me that I:-G. Police told him that he would pass further orders and investigation should be conducted according to his orders”. He further deposed that on November 13, 1974, Abdul Ahad, DSP obtained from him the site plan Exh. P.W. 34/2 and left for Rawalpindi ; that two-three days thereafter he returned from Rawalpindi and sent for him; that when he went to see him he handed him a prepared draft in respect of the empty cartridges and the lead bullet and told him that the said draft had been given to him from the Prime Minister’s House and, therefore, he should copy out the said draft ; that in obedience to his orders he accordingly prepared the recovery memo. of the crime empties ; that thereafter he went to Abdul Ahad, D. S. P. and told him that in the said memo. prepared by him, the markings on the crime empties were different than the ones on the actual crime empties as also that it contained no mention of the lead bullet ; but in reply he told him that all this was done on the Orders which had to be obeyed failing which both would lose their job as well as. be involved in a case. Without dealing with the rest of his examination-in-chief, as the substantial pact of it was put to him in his cross-examination, I would presently proceed to examine his cross-examination to show as to how untruthful witness he is and how his evidence is wholly uninspiring.
He admitted in cross-examination that in the proceedings of the ‘tribunal headed by Shafi-ur-Rehman,. J., of the Lahore High Court, he appeared as a witness and made three statements in the proceedings. The learned counsel for Mr. Bhutto, therefore, questioned him if in his said three statements he had mentioned that on the instructions given to him by Mr. Abdul Ahad, D.S.P.; he accompanied him to the house of the I. G., Punjab, with the cap of the deceased, a piece of lead and 24 empties ; that while proceeding to Model Town, Lahore Mr. Abdul Ahad told him not to prepare the recovery memo until he gives him further instructions in that behalf ; that since no instructions were given to him by Mr. Abdul Ahad he did not prepare the parcel of the empties and took the empties to the Police Station ; that in accordance with the instructions given to him by Mr. Abdul Ahad, he had shown the empty-cartridges to the Ballistic Expert ; that in the proceedings of the said Tribunal he had not only denied the claim of the Ballistic Expert, namely, Mr. Abidi to the effect that he had shown him the empties, but also that they were not sealed on the spot ; that on reaching the house of the I. G., Punjab, Mr. Abdul Ahad took the said articles into the house while he along with the driver of the jeep stayed outside and after half an hour Mr. Abdul Ahad returned and told him that the empties had been retained by the I.-G. Police ; that Abdul Ahad, D.S.P. had stitched and sealed the original F. I. R. of the occurrence ; that on return from Rawalpindi he gave him a prepared draft saying that the same had been given to him from the Prime Minister’s House and told him to prepare the recovery memo. of the empties accordingly ; that he had informed Mr. Abdul Ahad that in the said draft given to him there was no mention 4 the lead bullet as also that the markings on the empties were shown differently ; that he asked Mr. Abdul Ahad for return of the said empties but he told him that the same would be given to him later ; that when A. S. I. P., Bashir Ahmad returned from leave on November 17, 1974, he gave him the said recovery memo. and asked him to get the entries made in the relevant register against the date of November 11, 1974, through Head Constable P. W. Abdul Ikram, as on the date he (Bashir Ahmad) was himself on leave ; that Mr. Abdul Ahad, D.S.P. finally gave him the empties on November 23, 1974, and consequently he sealed them ; and that when he returned from Rawalpindi Mr. Abdul Ahad told him that he had been’ threatened with the termination of his service, as also that both of them would be involved in cases if they did not obey the orders given to him from the House of the Prime Minister. And in reply to all these questions, the answer given by the witness was in the negative saying, however, that he was then under pressure and consequently not a Sree agent.
Now the witness was the Investigating Officer in this case, and except for his bare word that the I.-G. and D. I.-G. both had pressurised him there is nothing on the record to support him. The I.-G. was not examined by the prosecution, and the D. I.-G. (Abdul Wakil Khan) has denied in his evidence the said claim of the witness. Besides, if there was any truth in his said claim, surely. he would not have crossed swords with Mr. Nadir Hussain Abidi (P. W. 36) in the inquiry proceedings conducted by Shaft-ur-Rehman, J. denying his (Mr. Abidi’s) claim that he had shown him the crime empties in the Police Station on November 11, 1974,, and that they were then lying unsealed. It is evident that the substitution of the crime empties in question was one of the crucial aspects of the case of the prosecution and if proved it would have gone a long way to strengthen its case. It should, therefore, follow that if any pressure was to be brought on the witness, surely that ought to have been the proper occasion. But clearly this was not the case, as by the forthright and bold stand taken by him against the contrary assertion made by Mr. Abidi he himself seems to have dispelled any doubt to the effect that he had been pressurised.
Now it cannot be denied that each one of the said questions put to him by the learned counsel for appellant Bhutto is so important that their contents ought to have been present to his mind when he made the three statements m the inquiry proceedings conducted by Mr. Shafi-ur-Rehman, J., of the Lahore High Court. Enough has already been said by me in this connection while discussing the topic as to when an omission in a previous statement would amount to contradiction, therefore, the inevitable conclusion ought to be that all the said omissions in the three previous statements of the witness would amount to contradiction, and consequently he cannot be believed.
The next witness in this connection is Mr. Fazal Ali (P. W. 24) who at the relevant time was Incharge of the Armoury, FSF, Headquarters, Rawalpindi. The object for which he was examined by the prosecution was to prove-(1) that the ammunition used both in the incident of Islamabad, in which abortive firing was made at the car of Mr. Kasuri, and at Lahore in which the father of Mr. Kasuri was murdered, was from the same lot number, and was of the type used in SMG/LMG ; (2) that out of the same tot he had supplied to Ghulam Hussain, approver, some ammunition for use in SMG/LMG ; (3) that in the early part of August, 1974, he had supplied to Ghulam Hussain, on the strength of a chit brought by him from Mian Muhammad Abbas, a sten-gun, two magazines, sixty rounds of ammunition and one pistol ; (4) that two-three days prior to November 25, 1974, Ghulam Hussain came to return him the ammunition, which was issued to him on May 9, 1974, but on checking the same it was found short by fifty/fifty-one empties of SMG, which he refused to accept ; (5) that on November 25, 1974, he came back to him and returned him the correct number of rounds and empties ; (6) that 8/ 10 days prior to Ghulam Hussain’s depositing with him 1500 empties he wash summoned by Mian Muhammad Abbas to his Office who asked him if he had any empties in the Armoury, and he replied in the affirmative ; (7) that at this Mian Muhammad Abbas asked him to fetch 25/30 empties of SMG/ LMG which he did ; (8) that Mian Muhammad Abbas asked him to leave the said empties on his table, as he was busy, and that he would let him know when to collect them and (9) that after 2-2 ½ hours, Mian Muhammad Abbas sent for him and returned him the said empties which he re-deposited in the Armoury.
Now the case of the prosecution is that whereas in both the incidents of Islamabad and Lahore the ammunition used was from the same lot number, issued to approver Ghulam Hussain, that in both the cases Ghulam Hussain had organised and led the assault, but in order to divert any suspicion against the FSF and Mr. Bhutto both Mian Muhammad Abbas managed to substitute the actual crime empties in the manner deposed to by P.W. Fazal Ali. In support of its case, the prosecution has also relied on a number of documents such as ammunition vouchers (Exhs. P.W. 24/1, P.W. 24/3 and Exh. P.W. 24/5), entries in the Stock Register of the Armoury (Exhs. P.W. 24/2, P.W. 24/4 and’ Exh. P.W. 24/6), road certificates (Exhs. P.W. 24/7, P.W. 24/8 and Exh. P.W. 24/9) and the Stock Register of the Armoury in which all the said entries were made by or at the behest of P. W. Fazal Ali. Now all this documentary evidence seems to me to be of no use to the case of the prosecution because according to the opinion of the Fire-Arms Expert the crime empties sent to him for examination, alongwith 25 SMGs. belonging to the 3rd Battalion, FSF, were found to have not been fired from the sad weapons.
The learned Special Public Prosecutor, however, argued that this precisely was his grievance, because the empties sent to the Fire-Arm Expert were actually the substituted ones and that was why his report was in the negative. With respect, there seems to be quite a few information in this contention. It is the case of the prosecution that the crime empties were first taken to the house of the L-G. Punjab by Mr. Abdul Ahad, D.S P., who retained them saying that he would give his instructions about them subsequently. However, there is no evidence on record to show as to how and in what manner the said empties travelled to Mian Muhammad Abbas who then substituted them. This lacuna in the evidence of the prosecution seems to be crucial, as in a case of circumstantial evidence (which this case undoubtedly is), it would be the burden of prosecution to show that no link in the chain forged cut of the circumstantial evidence is missing. Not only this but there are more difficulties in the way of the prosecution: If the prosecution had any doubt to the effect that the actual crime empties had been substituted, then all the witnesses examined by the: prosecution in Court such as Abdul Hayee Niazi, Fazal Ali, Muhammad Bashir, Muhammad Sarwar, Abdul Ikram, Abdul Wakil Khan and Nadir Hussain Abidi ought to have known that fact since 1974 but none of them had spoken a word about it any time. Neither in the interim challan nor in the final challan submitted by the prosecution in the High Court was any mention made of the said fact and, therefore, there weans to be force in the contention of Mr. Yahya Bakhtiar that the prosecution, after the report of the Fire-Arms Expert was known, started making grievance of the fact that the crime empties had been actually substituted. In support of his contention Mr. Yahya Bakhtiar rightly pointed out that the two witnesses to the recovery memo. of the said crime empties, namely, Abdul Ghafar and Abdullah, who were independent witnesses, as both were civilians and resided near the place of occurrence, ought to have been examined by the prosecution but they were given up although their names had been mentioned in the calendar of witnesses and the copies of their 161, Cr. P.C. statements also supplied to the defence. Furthermore, Report No. 17 (Exh. P.W. 16/1-2) of the Daily Diary maintained at the Ichhra Police Station shows that the sealed parcel containing the said crime empties was deposited in the Malkhana on November 11, 1974 ; that the Daily Diary in question used to be maintained by Muhammad Bashir (P.W. 16) and that the said entry had been made by Abdul Ikram (P. W. 18). Now this documentary evidence, in respect of which the presumption of truth would be available, ought to dispel any doubt that the crime empties were not sealed on the spot and the parcel containing them subsequently deposited in the Malkhana of the Ichhra Mice station not in the same condition.
The learned Special Public Prosecutor, however, contended that all the said entries were forged as they were not made on November 11, 1974, but on November 17, 1974. In support of this contention he relied mainly on the evidence of P. W. Nadir Hussain Abidi. It is true that he has supported the case of this prosecution to the effect that when he went to the Ichhra Police Station on November It, 1974 in the company of F. W. Abdul Hayee Niazi, the latter showed him the crime empties, which were lying unsealed and asked his opinion as to the type of weapons from which they were fired. However, in the inquiry proceedings conducted by Shafi-ur-Rehman, J., Mr. Abdul Hayee Niazi had seriously challenged the said claim of Mr. Abidi and disagreed with him. In the High Court, however, Mr. Niazi took up the contrary position saying that while giving his statement in the said inquiry proceedings he was under pressure of the I: G. and the D. 1: G. But tae D. L-G. has not supported him in that behalf whereas the I: G. was not examined by the prosecution. Furthermore. Mr. Sated Ahmad Khan came on the scene only after about seven weeks of the commencement of the said inquiry proceedings with a view to putting the investigation into the wrong channels. It is in the evidence of Muhammad Asghar Khan, S. S. P. that Mr. Saeed Ahmad Khan and his assistant late Mr. Bajwa both started interfering in the investigation with the result that he was no more a free agent. However, 6e does not claim to have put any pressure on Abdul Hayee Niazi to the effect that he should not disclose the truth before the said Inquiry Tribunal and I believe him because his own evidence in those proceedings was not only forthright but also against his own I-G. accusing him of having put pressure on him. In these circumstances, it would be dangerous to accept the word of Mr. Abidi as against the word of Mr. Niazi, specially when the documentary evidence clearly supports the earlier statement of the latter given by him in the said inquiry proceedings.
Furthermore, the contention of the learned Public Prosecutor cannot readily be accepted. To say, as he had no hesitation to contend, that the entries in the said various documents maintained at the Ihhra Police Station had been forged by P. Ws. Muhammad Bashir and Abdul Iram at the behest of P. W. Niazi would be tantamount to condemning his own evidence. If the witnesses had no scruples to desist from committing forgeries in the official record, what reliance can be placed on their bare word from the dock ? I am, therefore, of the view that the contention urged by the learned counsel is not at all convincing. It is in the evidence of P. W. Niazi that when Muhammad Bashir returned from leave on November 17, 1974, he told him that since the parcel containing the empties was still lying undiarised, he should ask P. W. Abdul Ikram to diarist it in the Daily Diary of the Police Station under the date of November 11, 1974 as on that ‘date he (Muhammad Bashir) was on leave. Muhammad Bashir and Abdul Ikram both have confirmed this position in their evidence not realising of course the patent absurdity of their claim. The admitted position is that Abdul Hayee Niazi and Abdul 1kram both were on duty on November 11. 19.4, and consequently the question is as to why the said entry could not have been made by Abdul Ikram on the said date ? when the parcel containing the empties also was in the custody of Mr. Niazi. This being the basic question to which no satisfactory explanation has been offered by the P. Ws, evidently it would be dangerous to hold that the said official documents had been forged-especially when no evidence has been brought on the record to show. if any inquiry was made against the said P. Ws. for having committed such 8 grave crime in respect of public documents.
It is in evidence that P. W. Niazi was joined in the investigation. as evidently he was suspected of some foul-play. But there is no evidence to show as to why the said course was later abandoned. It is clear, however, that he was subsequently produced as a witness in this case and thus it can be presumed that he was under some sort of pressure, as otherwise, why would he have disowned his earlier statement made by him in the inquiry proceedings conducted by Shaft-ur-Rehman, J., so completely as to make himself ridiculous. The fact that his said earlier statement was the only correct statement made by him is proved from the following circumstances. It is in the evidence of approver Ghulam Hussain, and he is corroborated ire that behalf by P. W. Fazal Ali, that when Fazal Ali refused to accept from him the ammunition issued to him on May 9, 1974 as the same was found to be short by 50/51 empties of SMG he went back to Mian Muhammad Abbas who told him that he should come back and see him after 2-3 days ; when he went to see Mian Muhammad Abbas after 2-3 days he gave him 51 empties of S. M. G. and thereafter he went to Fazal Ali who then accepted from him the ammunition as well as empties, as the shortage of 51 empties had been made up. Now if Mian Muhammad Abbas could procure from his own resources 51 empties of S. M. G., surely he ought to have been able to procure also 24 empties with a view to replacing them with the actual crime empties, specially when in the nature of things the said undertaking was evidently fraught with dangerous possibilities. The absurdity .of the claim of P. W. Fazal Ali would seem to be highlighted by the fact that on the instructions given to him by Mian Muhammad Abbas. when P. W. Fazal Ali brought from the Malkhana 21 empties curiously they coincided in every detail with. the actual crime empties which were taken into possession and sealed vide recovery memo. Exh. P. W. 34/4. Now according to this document out of the empties recovered from the spot, -22 bore the marking : BBI/7l whereas the other two as 31/71. The evidence of Fazal Ali, however, is that Mian Muhammad Abbas had ‘asked him to fetch the empties of S. M. G. And if this be so then how is it that out of the stock of empties maintained by him in the Malkhana, he was miraculously able to pick up the type of empties which coincided with in every detail with the ones actually recovered from the scene of occurrence. Fantasy also ought to have a limit, but P. Ws. Abdul Hayee Nizi, Muhammad Bashir, Abdul Ikram and Fazal Ali seem to have allowed their imagination to run so wild as to mock even the fantasies of `Alice in Wonderland’.
Now coming back to the evidence of Fazal Ali, it may be said that his name was not mentioned in the interim challan. However, in his evidence in Court he seems to have deposed to certain essential features Cr the C. statement respect recorded on September 1.8 $1977 td He was, s, therefore. questioned in cross-examination if in his said statement be had mentioned that “Ghulam Hussain Inspector, left having got annoyed. He returned after short times and told me that I was being called by Director, Mian Muhammad Abbas. I accompanied him to Director, Mian Muhammad Abbas. As soon as I entered the Office room of Director Mian Muhammad Abbas, he asked me as to why I had not obeyed his orders. I informed him that since the orders were not according to the standing order, I had not issued the weapons and ammunition. The Director shouted at me saying if I did not want to serve any more and that I would be discharged from service and that I would not reach my home. He again ordered me to issue the weapons and ammunition forthwith otherwise my services would be terminated. I issued the weapons and the ammunition on the receipt given to me by Ghulam Hussain” ; that “I did not make any entry in the register about it and had issued the same only on the receipt. Two days before the end of the same month, Ghulam Hussain, Inspector, returned the entire weapons and ammunition. He took back the receipt which he had given to me”; that “Two or three days prior to 25th of November, 1974 Ghulam Hussain, Inspector, Incharge. Commando Course, came to me to return the ammunition that had been issued to him on 9th May, 1974. When I checked the sent ammunition, I found that fifty to fifty-one S. M. O. empties were sort. I consequently informed him drat I would accept the ammunition brought by him to me only if he accounted for these missing empty cases. He, therefore, took it back. He returned with the ammunition again and I found that the correct number was being returned” ; that “After 40 or 50 boles of the empties are collected in the armoury those are sent to the Wah Factory” ; that Eight-ten days before Ghulam Hussain deposited 1500 fired rounds I was summoned by Mian Muhammad Abbas in his office. Mian Muhammad Abbas enquired from me if I had fired cartridges in the armoury. I told him that fired cartridges of all the weapons were lying in the armoury. After hearing my reply, Mian Muhammad Abbas told me to bring 20-30 fired cartridges of S. M. G., L. M. G. 1 returned to the armoury and took 30 empties of S. M. G., L. M. G. to the Director: The Director ordered me to place those empties on the table as he was busy in his work and he further told that he would let me know as to when I should collect those cartridges. I was summoned again after 2 or 21 hours by the Director, Mian Muhammad Abbas and told to take away the empties. I counted those empties. Those were thirty and I deposited them again in the armoury” and he replied that he had made all the said statements in his 161, Cr. P. C. statement but it was neither read to him by the Investigating Officer nor was his signature obtained by him thereon. The factual position, however, is that in his 161, Cr. P. C. statement, with which he was duly confronted, he had made no mention of the said facts. And thus his bare word would not carry any conviction. A casual look at the said statements would show that they were all prominent and fundamental in character and consequently the same ought to have been present to his mind when his 161, Cr. P. C. statement was recorded. These omissions, therefore, would be tantamount to contradictions. and so his evidence cannot be accepted.
Muhammad Bashir (P. W. 16) has no doubt supported the theory of substitution of the crime empties. But his evidence also, in addition to what has already been said about -him, is improbable, unnatural and incapable of carrying any conviction. He admitted in cross-examination not to have made any statement before the Investigating Officer in the year 1974-75. In his 164, Cr. P. C. statement however, he had made mention of the fact that the crime empties were substituted. But this statement of his was recorded a week after the submission of the interim challan in Court, i.e. on September 18, 1977. Mr. Yahya Bakhtiar, the learned counsel for Mr. Bhutto, therefore, argued that the witness was tutored in order to corroborate the evidence of P. W. Fazal Ali. There seems to be force in this contention. If there was any truth in the evidence given by him in Court, surely the Investigating Officer would have recorded his 161. Cr. P. C. statement during the investigation of the case conducted in 1974-1975.
The next witness in the series is Muhammad Sarwar (P.W. 17). His evidence is that in November, 1974, he was posted as A. S. I. (Investigations) at the Police Station, Ichhra. On November 23, 1974, P. W. Niazi gave him the sealed parcel, containing the crime empties, and asked him to deliver the same to the Inspector Armaments, G. H. Q., Rawalpindi, after obtaining from P. W. Abdul Ikram the road certificate. After getting the required road certificate, he carried the said parcel to Rawalpindi and delivered it to the Inspector of Armaments. In cross-examination, however, he was questioned if in his 161. Cr. P. C. statement he had made any mention of the said fact and he replied “the statement was recorded by the S. H. O. and I am not in a positron if he had recorded that”. In this view of his statement, be was confronted with his 161. Cr. P.C. statement and he admitted that the same did not contain his said statement. This being the substance of his evidence, it is neither here nor there. Assuming, however, that he was given the said parcel on November 23, 1974, by P.W. Niazi td be carried to the Inspector of Armamepts, Rawalpindi. It would hardly be sufficient to prove as the case of the prosecution that the crime empties were actually substituted.
The evidence of Abdul 1kram (P. W. 18), with which I have already dealt with in some measure, no doubt supports the claim of P. Ws. Fazal Ali and Muhammad Bashir but his evidence is unnatural, improbable, made up of improvements and thus incapable of carrying any conviction.. I have already disbelieved the evidence of the prosecution to the effect that entry Exh. P, W. 16/1-1, was actually made on 17-11-1974, and consequently the same was forged. However, since P.W. Abdul 1kram has supported the case of the prosecution in that behalf he cannot be believed. Furthermore,’ he was not examined as witness during the investigation of the case in 1974-75 which again would render his evidence doubtful. It is true that his 161 and 164, Cr. P. C. statements were recorded on November 9 and 18, 1977, respectively. But even in those statements he had made no mention of the fact that when Muhammad Bashir returned from leave he told him that he should not make any entries in the relevant register, as entries in regard to the case property had yet to be made therein, and further that when the crime empties were taken to the house of the L-G. Police by Mr. Abdul Ahad, D. S. P. and P. W. Niazi he made no entry of that fact in the Roznamcha of the Police Station. It is true that in answer to a question put to him by Mr. Irshad Ahmad Qureshi, the learned counsel for appellants Rana Iftikhar Ahmad etc. who seems to have supported the case of the prosecution throughout, he replied that he had seen the crime empties lying on the table of Mr. Niazi unsealed between 4-5 p. m. and 9-10 p.m. on November 11, 1974, as also that on 12-11-1974, he noticed in the Roznamcha the fact of the arrival report of Mr. Niazi from the house of the I.-G. Police. Now with profound respect to the High Court, after the close of cross-examination of the witness by the learned counsel for Mr. Bhutto, Mr. Irsbad Ahmad Qureshi ought not to have been allowed to ask the said question. Furthermore, the Roznamcha of the Police Station was not before the witness and consequently he could not have deposed to its contents. Mr. Yahya Bakhtiar further pointed out that a similar question was asked by the Court from P. W. Muhammad Basbir (see page 422 of Volume 11 of the evidence) In respect of an entry in the Daily Diary of the Police Station when the Daily Diary was not before the witn:ss in Court, and he replied “In the report the case property according to the recovery memos, was mentioned but not this parcel specifically”. He contended that the procedure thus adopted by the Court was inconsistent with the view taken by it in respect of a similar question asked on behalf of the defence with the result that the defence has been prejudiced. In this respect he referred to the evidence of Mr. Masood Mahmood (see page 188 of Volume II of the Evidence) in which he was asked : Is it a fact that while staking entries in the said register, Mian Muhammad Abbas would add the words D.-G.” against the amounts received by you to your annoyance”?, but the Court overruled the said question observing “the contents of the register are being put to the witness without the original being shown to him”. From this it should be obvious that the grievance made by Mr. Yahya Bakhtiar is not unjustified that in similar circumstances, the evidence of the prosecution and defence was differently treated in the High Court.
In view of this analysis of the evidence of the witness, it ought to be obvious that in respect of the essential features of the case of the prosecution, namely, the substitution of the crime emptie3, he was not examined during the investigation of the case in 1974-1975, as also that in his 161 and 164, Cr. P.C. statements recorded on September 11 and 18 1977, again he made no mention of the fact that when Muhammad Bashir returned from leave, he told him not to make any entries in the relevant register, because the entries regarding the case property of this case had yet to be made therein. In these circumstances, therefore, he does not seem to be a truthful witness and hence cannot be believed.
The next witness in this connection is Abdul Wakil Khan (P. W. 14). He has no doubt deposed to the substitution of the crime empties, but his evidence in that behalf has been made up of improvements in the High Court. He was questioned in cross-examination if in his 1151 and 164, Cr. P. C. statements he had mentioned that “Mr. Bajwa suggested that a report could be recorded on the statement of any other person saying that the fire was opened by some unknown persons and the accused had fled away and the name of the Prime Minister thus could have been avoided”; that in order to put off late Mr. Bajwa, he had mentioned therein “I wanted to avoid any suggestion from him to tamper with the empties in order to exonerate the FSF”; that I remember Mr. Ahad met me after about a fortnight when I enquired from him if any result has been received from the Ballistic Expert to with the empties were sent”; that “I was surprised to hear from him that he had delayed the sending of the empties because these were taken away by Mr. Abdul Hamid Bajwa and then he returned to him after two or three days and after that the empties were sent for the examination. I got annoyed with Mr. Ahad and asked him as to why did he hand over the empties to Mr. Abdul Hamid Bajwa. He told me that Mr. Bajwa contacted him and told him that these empties were to be taken to the Prime Minister’s House to be shown to the high officers and because of this threat these empties were given to him”: and that “I kept quiet when I came to know that he (Mr. Ahad) did all this because of the instructions from the Prime Minister’s House. I did not say anything snore”, and his reply to all these questions was in the negative saying, however, that he had mentioned them in his evidence because he was asked about them for the first time.
Now the witness was a senior Police Officer of the rank of D. I.-G., and yet had said nothing in his 161 and 164, Cr. P. C. .statements about the said crucial improvements made by him in his evidence in court. If there was any truth in his said statements, they ought to have been present to his mind when hi: said two previous statements were recorded, because they related among other things, to the incriminating conduct of late Mr. Bajwa which was evidently designed to divert the course of investigation into wrong channels. In these circumstances, the said improvements made by him in Court. in respect of the substitution of the crime empties would be deemed to be contradictions, and so he cannot be believed. Now after all this lengthy discussion, it would be a waste of public time to go into the various vouchers Exhs. P. W. 24/1, P. W. 24/3, and Exh. P. W. 24/5) and the road certificates (Exh: P. W. 24/7, P. W. 24/8 and Exh. P. W. 24/9), as ill that the prosecution wanted to prove therefrom was that the ammunition used both in the Islamabad incident, as well as the Lahore incident, was of the same calibre and issued from the same lot number to approver Ghulam Hussain, who had organized and led the assault at both these places on the car of Mr. Kasuri. Now by the examination of the said documents, in juxtaposition with the evidence of approver, Ghulam Hussain, it seems to me that the case of the prosecution in that behalf is unconvincing. At some stage I would be dealing with the evidence of Ghufam Hussain to show that the same is patently absurd unnatural, improbable and untrue, but for the present it would suffice to say that road certificate (Exh. P. W. 24/9) seems to be of doubtful character as the same is cyclostyled, whereas the road certificate (Exh. P. W. 24/7) is on the printed form. It is true that this distinction by itself may not be sufficient to hold that the same was forged. But there is other evidence on record which would seem to render the genuineness of it questionable. Now Exh. P. W. 24/9, which is addressed by Ghulam Hussain to Ghulam Hussain, bears the date of November 25, 1974. But according to entry (Exh. P. W. 31/4) from the Daily Diary of his Battalion he had left Rawalpindi for Peshawar on November 22, 1974. and returned from Peshawar to Rawalpindi (see Exh. P. W. 31/5) on 29th November 1974. His evidence, however, is that he had made the said entries (.both of which bear his signature). on the instructions given to him by Mian Muhammad Aubas, as he wished him not to be officially present in Rawalpindi. However, he is belied by road certificate (Exh. P. W. 24/9). If Mian Muhammad Abbas had really given him the said instructions (respecting which, however, no reason has been shown as to why his presence at Rawalpindi was not wanted) it is inconceivable that just three days thereafter he would contravene the said instructions with impunity, and show himself again officially present at Rawalpindi.
Be that as it may, his T. A. Bill (Exh. P. W. 31/6), which is a consolidated bill, and with which I would be dealing in some detail subsequently, clearly supports the said conclusion. Now this bill under which he was paid his T. A./D. A. shows that he left Rawalpindi for Peshawar on November 22, 19-4 at 3-30 p. m. reaching Peshawar at 8-25 p m. Leaving the other details of the bill in question, however, as they pertain to the local journeys undertaken by him at Peshawar, it further shows that during his stay at Peshawar be had stayed at a hotel for which he paid Rs. 210 as also that he left Peshawar for Rawalpindi at 2-00 a. m. on November 29, 1974, reaching Rawalpindi at 7-40 a. m. on the same date.
Now this authentic document on the basis of which public money was paid to hire from the treasury should suffice to hold that the witness is allergic to tell the truth. The learned Special Public Prosecutor, however, argued that the said part of the bill was forged. But with respect this contention cannot be accepted. There is no denial of the fact that the document in question is a Government document and was produced in evidence from the proper custody. In this view, the contention urged by the learned counsel is not only incapable of carrying; arty conviction, but in the nature of things seems to b» rather odd as well as intriguing. Furthermore, on a part of the said document, in so far as it shows that on November 10 and 11 1974, approver Ghulam Hussain was present at Lahore, the learned counsel has relied. And hence how is it possible to accept a part of the document to be genuine and the other part of it as forged. It may be noted that as against the said document, as well as the two entries recorded is the Daily Diary of the Battalion of the witness in which his departure from Rawalpindi to Peshawar and back has been shown, what credence can be given to his bare word, when admittedly he is a self-confessed criminal and there is no evidence whatever tea support him in that behalf.
Furthermore, road certificates (Exhs. 1’. W. 24/7 and P. W. 24/9) were produced in evidence by P. W. Fazal Ali. But in none of his previous statements he had made any mention of them, as also that in the two challans submitted by the prosecution again no mention was made of them. Abdul Khaliq (P. W. 4!), who was the Investigating Officer in the case, was questioned in cross-examination. If during the investigation, he had taken the said two documents into possession ?, he replied in the negative. In reply to another question put to him, namely, “Did you see documents P. W. 24/7 and P. W. 24/9 during the investigation of this case?”, he said -This issue was looked into by one of the Inspectors of the Investigating Team and so far as I recollect I had seen the photostat copies of these documents”. He agreed, however, that the photostats thereof were not attached with the challan submitted in the Court. In these circumstances, therefore, he was finally questioned : “is it a fact that after the commencement of the trial in this Court and having seen the trend of cross-examination of the witnesses the above-mentioned two documents were forged” ?. he replied in the negative, saying that he could not even think of doing such a thing.
Now this evidence of P. W. Abdul Khaliq would further seem to support the conclusion, that road certificate Exh. P. W. 24/9 was indeed doubtful. The Inspector of the Investigating Team, who according to him had seen the said documents, was not examined in proof of the fact that he had actually seen the said two documents. Not only this but the phatostat copies thereof, which P. W. Abdul Khaliq says he had seen during the investigation, also were not attached with the challan submitted in the High Court. From this it should follow that if the claim of P. W. Abdul Khaliq had any truth in it, surly he would have taken the said two documents into possession when he saw the photostat copies of them. The fact, however, is that even P. W. Fazal Ali had not said a word about the said documents in any of his previous statements and consequently the grievance of the learned counsel for Mr. Bhutto seems to be justified that Exh. P. W. 24/9 was not a genuine document.
The High Court has. however, relied on a letter (Exh. P. W. 39/2) written by Colonel Wazir Ahmad Khan, Commandant Central Ammunition Depot, Havelian, to the Deputy Director, Federal Investigating Agency, Lahore, showing therein that the ammunition issued to FSF (some of which according to the prosecution was used in the two assaults carried out on the car of Mr. Kasuri at Islamabad and Lahore) bore the lot Nos. 0024-71-661, 0015-71-661 and 0001-661. Furthermore, no ammunition issued under the said lot numbers bore the marking : B81/71, presumably it was 661 /71. Mr. Yahya Bakhtiar has taken objection to the said finding of the High Court. He contended that Colonel Wazir Ahmad Khan was not examined in the proceedings, although an application was made in that behalf by the prosecution (sec page 10E of the Volume of Applications) to which no objection was taken on behalf of the defence, but even so it was rejected. lie, therefore, argued that the contents of the said letter remained unproved and consequently could not be taken into consideration. Now the finding recorded by the High Court is that since the said letter was written and signed by Colonel Wazir Ahmad Khan in the presence of P. W. Muhammad Boota, there was no need to examine Colonel Wazir Ahmad Khan, as the contents of the said letter were proved by Muhammad Boota himself. By looking at the said letter, however. it would be seen that it is typed and not written as observed by the High Court. Besides, Colonel Wazir Ahmad Khan could not have typed the said letter himself, and there is no evidence to snow as to who had typed the same, as also the source from which the information conveyed therein as to the lot number of the ammunition issued to FSF was taken. In these circumstances, it was essential that Colonel Wazir Ahmad Khan should have been examined. Furthermore, that part of the evidence of P. W. Muhammad Boota in which he said “which he wrote and signers in my presence” (meaning Colonel Wazir Ahmad Khan) was brought on the record of the case by replaying the tape of the evidence of the witness (see page 65 of the Volume of Order Sheets). But unfortunately in a similar situation (see page 38 of the same Volume), the High Court rejected the application filed on behalf of Mr. Bhutto to the effect that he be allowed to place his own tape-recorder in the Court, to take down the proceedings observing “since the tape-recorder is not part of the proceedings, the application is rejected”. Apart from the other considerations, therefore this finding of the High Court would suffice to hold that the said part of the evidence of P. W. Muhammad Boota, brought on the record of the case by replaying the tape of his evidence, was inadmissible, and consequently could not have been taken into consideration. Inevitably, therefore, it would follow that the prosecution has failed to establish even the lot number of the ammunition issued to F S F from the Central Ammunition Depot, Havelian, as also that the ammunition used in both the incidents at Islamabad and Lahore were from the same lot number.
The learned Special Public Prosecutor, however, relied on the Stock Register (not exhibited) of the Central Armoury of the F S F to show that a part of the T. A. Bill (Exh. P. W. 31/6) in which approver Ghulam Hussain was shown to have been away at Peshawar with eflcct from November 22, 1974 to November 29, 1974, as well as the two entries (Exh. P. W. 31/4 and Exh. P. W. 31/5) made by him in that behalf in the Daily Diary of his Battalion must be held to be forged. In this respect he relied on entry (Exh. P. W. 24/10) dated November 25, 1974 appearing therein (at page 12) in which Ghulam Hussain was shown to have returned to the Central Armoury, 1500 empties of LMG/SMG. He argued that since the register in question was maintained by P. `,N. Fatal Ali in the normal course of his duty, the said entry made therein (Exh. P.W. 24/10) must be held to be genuine, and consequently road certificate (Exh. P.W. 24/9) through which the said empties were carried by approver Ghulam Hussain to the Central Armoury would he free from any doubt. I am afraid, there is no force in this contention. In the first place the register in question was maintained by or under the supervision of P. W. Fazal Ali alone whereas the T. A. Bill (Exh. P.W. 31/6) was evidently prepared, authenticated by different persons, as also that on the strength of it, payment was made to approver Ghulam Hussain by yet another agency. In this view the said T. A. Bill and the two entries made by Ghulam Hussain in his own hand should carry more conviction than the word of P. W. Fazal Ali or for that matter entry (Exh. P. W. 24/ 10) appearing in the said register. Be that as it may. I have already disbelieved the genuineness of road certificate (Exh. P.W. 24/9) and so what reliance can be placed upon entry (Exh- P.W. 24/10) made in the said register by P. W. Fazal Ali ?
Furthermore, the Register in question, and the manner in which it has been maintained, does not inspire confidence : It is just an ordinary register which is freely available at a common Stationer ; its pages do not carry any embossed numbers on them ; it has not been wholly maintained by P. W. Fazal Ali alone ; entry (Exh. P.W. 24/10) has been made therein by one Muhammad Azad (not examined) and only initialed by P. W. Fazal Ali ; out of the 34 written leaves of it, the first two leaves are blank and are marked with a black pointed ball pen, whereas the rest of the leaves (except for leaf Nos. 32 and 33 which are marked with a red pointed ball pen) are marked with red pencil ; each one of its leaves is marked with the number of the succeeding leaf, but the said numbers have been made with a bail point pen of different hues, as also that the said numbers have been written by three different persons; the entries made on leaves 2 to 20 are not only written with the ball pointed pen of black hue, but in distinct hand, whereas the succeeding pages (from 21 to 34 and again to 80), have been written by another hand using a ball point pen of blue colour ; that the various entries made. therein, to which P. W. Fazal Ali has appended his signatures, are distinctly written in two different hands ; and that even the figures such as ‘2’, ‘3’ and ‘4’, appearing to all the entries, each are supposed to have been written by P. W. Fazal Ali, are completely different than similar figures appearing in the other entries written by him.
Furthermore, the Register in question is of the type which can be easily tampered with in the sense that its pages can be removed and replaced with another set of pages. As it is, the register is in a pitiable condition. It is in the evidence of P. W. Fazal Ali that when he left the Central Armoury, the register had become loose and consequently the same was stitched again by Inspector Muhammad Siddiq (not examined) to ensure that it was properly secured. The factual position, however. is that the register as such has not been stitched again but only a part of it which contains the entry (Exh. P. W. 24/10). Finally, there has been given on the inner side of the cover of the register, a certificate by one A.S.I. M. Azad, which has been duly certified by two officers, namely, Fazalul Rehman, Inspector and another styling himself’ as D.D.A. that the register contains 103 leaves, but this is incorrect as by counting them I found that actually it contains 104 leaves. Now from all this, it should be obvious that the register in question is not of the type for the contents of which any presumption of truth can be claimed. In any event, even if the said presumption of truth is conceded in favour of its contents, the same has been displaced by more credible evidence and consequently no reliance can be placed upon the same.
With profound respect to the High Court, however, in recording the contrary conclusion. it seems to have accepted the evidence of the witnesses and the said various documents as a matter of course without subjecting them to proper scrutiny to exclude the possibility if all the said evidence could as well be explained on the basis of another reasonable hypothesis. The evidence of the P. Ws. when seen in the overall context of the case of the prosecution, is not only unnatural, improbable and untrue, but is essentially made up of significant, and prominent improvements made by them during their evidence in Court of which. However the High Court has not taken, with respect, any notice whatever. It seems to me that the High Court, and against say so with respect had launched itself on the course of simply canvassing the probabilities of the case of the prosecution which was impermissible. It is well settled, that the burden to prove the guilt of an accused lies on the prosecution, as also that the benefit of any doubt arising from the evidence must be given to the accused. This axiomatic wholesome and cardinal principle relating to the safe administration of criminal justice does not seem to have been present, with respect, to the mind of the High Court while appraising the mass of said oral and documentary evidence with the result that the said finding recorded by it cannot even be remotely supported. Now if the object-of the prosecution was, which indeed seems to have been its object, to prove that the crime empties were actually substituted, then why would Mian Muhammad Abbas (who is said to have been responsible for the said substitution) not replace them, say, with .303 or empties of some other calibre as according to the prosecution itself he was resourceful enough, as he had already made up the deficiency of 51 empties by which Ghulam Hussain approver was short instead of launching himself upon a circuitous, complicated, hazardous and unnatural course of taking into confidence P. W. Fazal Ali. Similarly. It is unbelieveable that any of the P. Ws. were put under any pressure during the course of investigation conducted in 1974-1975. because (1) P. W. Abdul Hayee Niazi had already registered the F; I. R. of occurrence in which the name of Mr. Bhutto was mentioned; and (21that ha spite of the forceful , statement given by P. W. Muhammad Asghar Khan, S. S. P., Lahore, before the Inquiry Tribunal headed by Shaft-ur-Rehman, J., in which he not only impugned the conduct of his own I.-G., but also of P. W. Saced Ahmad Khan and his assistant late Mr. Bajwa, and yet no action was taken against them by the Government of As, Mr. Bhutto.
The learned Special Public Prosecutor seems to have been aware of the infirmity of the finding recorded by the High Court, because he frankly conceded from the bar that “I am not in a position to say positively that there is positive evidence of substitution-------------- There is a high probability that the empties had been changed. The evidence as to big probability has to be looked at in the totality of the picture. There is a case for strong inference that the empties had been changed”. Now canvassing the high probabilities in a case against an accused can never be a ground to hold him guilty : see Woolmington v. D.P.P. (1935 A C 462), Brij Dhushan Singh v. Emperor (AIR 1946 PC38), Safdar All v. State (PL D1953FC93 ),. Muhammad Luqman v. State (PLD1970SC10). Fazlul Qadlr Chaudhury v. Chown (PLD 1952FC19 ), Sarwan Singh v. State of Punjab (P L D 1957 S C (Ind,) 555) and Ramzan Ali v. The State (P L D 1967 S C 545 ) in which the same principle has been reiterated. But it would be instructive to reproduce from page 12 of the judgment reported in P L D 19i0 S C 10 the following dictum :---
““With due respect to the learned Judges, it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of the fact to prove the guilt of a person, the golden rule of benefit of doubt’ to any accused person, which has been dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts would be reduced to at naught.”
I think I have now dealt with all the evidence of essential witnesses as well as the documentary evidence except of course the evidence of approver Ghulam Hussain with which I would deal at the proper stage. Taking up the subject of conspiracy, therefore, let us again recall the relevant evidence of P. W. Masood Mahmood in so far as it relates to the conspiracy, entered between him and Mr. Bhutto, for the assassination of Mr. Ahmad Raza Kasuri. His evidence is that being a member of the Police Service of Pakistan, he attained the rank of Deputy Inspector-General ; in 1969, however, he was selected as Deputy Secretary-General, CENTO, with headquarters at Ankara; on his return from Ankara in 1970, at his own request, he was posted as Deputy Secretary, Ministry of Defence, later promoted as Joint Secretary and Additional Secretary and then appointed to what he has called a punishment post, namely, the Managing Director, Board of Trustees Group Insurance and Benevolent Fund in the Establishment Division. In this connection, he attempted to meet with Mr. Vaqar Ahmad, the then Secretary Establishment, but did not succeed ; sometime in early April, 1974, however, Mr. Vaqar Ahmad called him and told him that he was to meet Mr. Bhutto on April 12; 1974, but he should first come and see him ;that in the meeting in question Mr. Vaqar Ahmad was very nice to him and told him that Mr. Bhutto was going to offer him an appointment which he must accept ; thereafter he dilated on his personal affairs such as about the poor health of his wife, his small children and then told him that under the revised Service Rules an officer of Grade 21 (which he was) and above could be retired at any time ; and that the said conversation, therefore, left him with the impression that his job was at the mercy of Mr. Bhutto and Mr. Vaqar Ahmad.
On April 12, 1974, he called on Mr. Bhutto who was kind to him and after praising his integrity and capacity for hard work, offered him the post of Director-General, FSF. He told him not to accept any instructions from the then Minister of Interior, namely. Mr. Abdul Qayyum Khan ; not to terminate the services of the re. employed officers of the FSF without his prior permission as they were all useful people and in this connection specially mentioned the name of Mian Muhammad Abbas. Mr. Bhutto told him to be on the right side Mr. Vaqar Ahmad; that he expected him to forge the FSF into a deterrent force and that since Mr. Vaqar Ahmad did not like him he should be on his right side.
Between April 12th and 23rd, 1974, while he was still holding the charge of the said punishment post, he was visited by Mr. Saeed Ahmad Khan and his assistant late Mr. Bajwa who gave him the impression that if he declined to accept the job offered to him by Mr. Bhutto he would not able to see his wife and children again.
On 23rd April 1974, he formally assumed the charge as Director-General, FSF The charter of his duties was contained in the FSF Act, 1973, but Mr. Bhutto also told him in the said meeting, that the Force must be made available to him for political purposes, namely, for --
(a) breaking up of political meetings ;
(b) harassment of personages both in his own Party and the Opposition ; and
(c) induction of the plain-clothed men in public meetings addressed by him so as to swell the crowd,
In June, 1914, when Mr. Bhutto was addressing ; the National Assembly, Mr. Ahmad Raza Kasuri interrupted him at which, ignoring the Speaker of the House, Mr. Bhutto asked him to keep quiet adding that he had had enough of him and that he would not tolerate his nuisance any more. A day or two later, Mr. Bhutto sent (‘or him and told him that he was fed up with Mr. Ahmad Raza Kasuri and that Mian Muhammad Abbas knew all about him as he had already been given instructions through his predecessor, Mr. Haq Nawaz Tiwana (deceased) to get rid of him. He, therefore, told him to ask Mian Muhammad Abbas to get on with the job : “produce the dead body of Mr. Ahmad Raza Kasuri or his body bandaged all over”. He further told him that he would personally hold him responsible for the execution of his said order. On hearing this from Mr. Bhutto. he was naturally shaken and pleaded with him that to execute his said order would be against his conscience and would certainly be against the dictates of God. At this Mr. Bhutto lost leis temper and shouted at him saying, that he would have no non-sense from him or Mian Muhammad Abbas. He raised his voice saying, you don’t want Vaqar chasing you again, do you ? Having thus been snubbed, he returned to his Office in a perplexed state of mind, called Mian Muhammad Abbas and conveyed him the said order of Mr. Bhutto. He was surprised to note, however, that Mian Abbas was not at all disturbed. He told him not to worry and that the order in question would be duly executed, as the same had already been conveyed to him by the former Director-General. Subsequently, Mr. Bhutto kept on reminding him and goading him from time to time in respect of the execution of his said order personally on the green telephone, as well as through Mr. Saeed Ahmad Khan and late Mr. Bajwa. Mr. Saved Ahmad Khan had spoken to him over the green line and told him that appellant Bhutto wanted him to execute the order already given to him in respect of Mr. Kasuri.
Now this in essence is the evidence of Mr. Masood Mahmood, which according to the High Court constituted the conspiracy entered into between him and Mr. Bhutto for the assassination of Mr. K3suri. The learned Special Public Prosecutor has, however, relied on the mass of oral and documentary evidence, such as relating to the prior and subsequent conduct of Mr. Bhutto and contended that all the said evidence must conjointly be read with the evidence of Mr. Masood Mahmood in proof of the existence of the said conspiracy. While this contention of the learned counsel would be dealt with in detail subsequently, at this stage it would be proper to reproduce section 120-A of the Penal Cole of Pakistan, which runs as under :-----
“120-A. Definition of criminal conspiracy.-----When two of more persons agree to do, or cause to be done -
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-----It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”
Now there has been a great deal of controversy between the learned counsel for the parties as to the true scope and connotation of the expressions agree’ and ‘agreement’ appearing in the said section and both sides have relied on a large number of judgments, legal treatise as well as dictionaries and law laxicons. Mr. Yahya Bakhtiar, the learned counsel for appellant Bhutto argued : (1) that the said two expressions should be given their normal meaning i.e., to say an agreement’ has to be the product of the free consenting minds of two or more persons without the exercise of intimidation, coercion or undue influence by one upon the other ; and (2) that in view of the said evidence of Mr. Masood Mahmood, there did come into existence a seeming ‘agreement’ between him and Mr Bhutto, but to till intents and purposes actually it was not an `agreement’ at all as undue influence was exercised on him by Mr. Bhutto and hence he was not a free agent. The learned Special Public Prosecutor, on the other hand argued that the so-called undue influence exercised by Mr. Bhutto on Mr. Masood Mahmood would have no relevancy firstly, because it was not the type of undue influence which would vitiate his free consent; and secondly, because the existence of conspiracy in this case has to be seen from the evidence of Mr. Masood Mahmood as well as all the surrounding circumstances. Furthermore, there need not be the need of direct meeting or combination nor the need that parties be brought into each other’s presence; the agreement may be inferred from the circumstances raising a presumption of a common concerted plan to carry out the unlawful design.
If I have been able to correctly understand the learned counsel, perhaps he has desired me to hold (1) that even of Nit. Bhutto is found to have exercised undue influence on Mr. Masood Mahmood still they must be held to have entered into an effective conspiracy to assassinate Mr. Kasuri, and (2) that the evidence of Mr. Masood Mahmood is not the only basis to adjudge the existence of the said conspiracy, the prior and subsequent conduct of Mr. Bhutto and all the surrounding circumstances have to be considered together.
Dealing with his latter contention first, I am afraid the same is misconceived. I think it ought to be understandable that in the nature of things a conspiracy has to be a secret transaction and the conspirators extremely-vigilant and circumspect so as to prevent the leakage of any tell-tale signs which may not only frustrate their design but also make themselves accessible to be reached by the long arm of law. In this respect, reference may be made to Pulling Behari Das v. King Emperor (16 C W N 1105-15 C L J 517-16 1 C 257--13 Cr. L J 609) from which the following dictum seems to be relevant :-
“It must be remembered that direct proof can scarcely be afforded of a conspiracy -------But as Earl, J., well says in R. v. Duffield 5 Cox. C. C. 404, it does not happen once in a thousand times that anybody comes before the Jury to say “I was present at the time when these parties did conspire together and when they agreed to carry out their unlawful purpose -----------It is from this point of view that the overt acts may properly be looked to as evidence of the existence of a conceited intention; indeed the conspiracy is usually closely bound up with the overt acts, because in many cases, it is only by means of overt acts that the existence of the conspiracy can be made out.”
It should thus be clear that the need to look into the overt acts a evidence of the existence of a conspiracy only arises because ‘it does not happen once in a thousand times that anybody comes before the Jury to tray ‘1 was present at the time when these parties did conspire together and when they agreed to carry out their unlawful purpose”. A priori it would follow that in this case since the prosecution has been able to lay its hands on, and actually relied on the direct and express evidence of Mr. Masood Mahmood, constituting the conspiracy, then to fall back upon circumstantial evidence would be impermissible, unless, of course the same would be complementary and not derogatory to the said ex V. `agreement’. In my humble view there ought to be no quarrel with thisi0 proposition. For example, if an express agreement entered into between A and B related, say, to the sale of a motor car belonging to A, then can any evidence be taken into consideration which shows that they had actually intended to agree upon the sale of a plot of land belonging to A ? Inevitably the answer has to be in the negative, as evidently the express agreement and the said evidence mould be destructive of each other. It must be said, however, that if an agreement is only partly expressed, then the surrounding circumstances may be taken into consideration to give it the purpose and meaning. But in this respect more would be said later.
The learned Special Public Prosecutor, however, did not agree with this conclusion. He argued that an agreement of criminal conspiracy should never be equated with an ‘agreement under the Law of Contract for (1) the former agreement is illegal and punishable under the Pakistan Penal Code, whereas the latter enforceable through civil proceedings instituted in a competent Court; and (2) that if the said distinction is not kept in mind, it would lead to disastrous consequences inasmuch as in a given case a hired assassin or for that matter a child under the age of seven years,, who under section 82 of the P. P. C. cannot be guilty of any offence committed by him can as well be a party to a criminal conspiracy with a grown-up person, and yet the latter would be able to get away with the crime as it needs at .least two persons to form a conspiracy. This example given by the learned counsel is not only extreme, but is misconceived. In this respect reference has to be made to sections 82, 83 and 90 of the P. P. C. which respetively read as under :-
“82. Act of a child under seven years age.-----Nothing is an offence which is done by a child under seven years of age.
83. Act of a child above seven under twelve of immature understanding.-----Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
90. Consent known to be given under fear or misconception.-----A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury or under a misconception of fact and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception ; or --------------------------
Consent of child.----Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age----------------”
Now by reading these three sections together it should be clear that a child under the age of seven years has been exempted from any criminal liability, because being of tender age the law takes him to be incapable of having mens tea or to understand the nature and the consequences of his conduct. In this view it would be difficult perhaps to hold that a child of that age could ever be a party to a criminal conspiracy of which mens tea is one of the essential ingredients.
It is conceivable, however, that a hardened criminal may in a given case rise the services of a child under the age of seven years in the commission of a crime. In the nature of things, however, the suggestion in that behalf has to be made to the child by the former and when so made it would be tantamount to abetment on his part within the meaning of section 107, P. P. C. for which he would be punishable under section 115 or 116, P. N. C. as the case may be. In this respect reference may be made to Explanation 3 to section 108, P. P. C: as also Illustration (b) appearing under the said’ Explanation which respectively read as under :---
“Explanation 3.----It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
Illustrations
(a) --------------------------.
(b) A, with the intention of murdering Z, instigates B, a child under seven years age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and thereby, causes Z’s death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death.
(c)--------------------------
(d)------------------------”‘
I hope this ought to suffice to clarify the doubt of the learned counsel. Now coming to his other contention, namely, that an ‘agreement’ of criminal ‘conspiracy’ should not be equated with an agreement’ under the Law of Contract, I am afraid it has not impressed me, Before dealing is with this aspect of the case, however, let us take into consideration the fact as to how in our daily lives is the word agree’ or `agreement’ commonly understood. For example A, a Food----Inspector appointed by the Government, goes to a shop to purchase, say, some items of merahandize for which they shop keeper quotes him the price of Rs. 100, A, however, goes on arguing with him to reduce the price but the shopkeeper does not agree. Finally, A discloses to the shopkeeper the fact that he was the Food-Inspector of the area at which the shopkeeper immediately reduces the price of the said articles to, say, Rs. 80. Now upon these facts can it be said that the shopkeeper had agreed to sell the said articles to A for Rs. 80 ? The answer has to be in the negative. It is true that no sooner the shopkeeper delivered the goods to A, in consideration of having received from him Rs. 80, to all intents and purposes, he would seem to have agreed to sell A, the said articles on reduced price. But actually it cannot be said that he had agreed to do so because he was only made to agree’ after A disclosed to him his identity as Food Inspector which in the nature of things at once robbed him of his free volition in the matter. It is precisely for this reason that the word ‘consent’ which is the sine qua non of an ‘agreement’ has been defined in the Black’s Law Dictionary (1968 Edition) to mean, amongst other things, “A concurrence of wills, voluntarily yielding the will to the proposition of another there is a difference between consenting and submitting -----------every consent involves a submission but a mere submission does not necessarily involve consent”. Examples can be multiplied in this behalf, but it would be unnecessary.
In the Dictionary of English Law by Earl Jowitt the word ‘consent’, which is an essential ingredient of an `agreement’, has been defined to mean “an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil of either side. Consent presupposes three things 1 a physical power, a mental power, and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.” In the same Dictionary an ‘agreement’ has been defined to mean “a consensus of two or more minds in anything done or to be done”. Furthermore, “when analysed, the essential marks of an agreement ere ; There must be at least two persons; they must intend: the same thing; their intention must be communicated; and the object of their intention must be such as will, when carried out, alter their legal position, e.g.. by producing the transfer of property or the creation or extinction of a right. The communication of intention may be formal or informal, simple or complicated, but it may always be reduced to the elements of a proposal made by one party and accepted by the other; so that until the proposal is absolutely accepted there is no agreement; or there must be concurrence of both parties to a form of words expressing their common intention”.
In Black’s Law Dictionary (1968 Edition), the word ‘agree’ has been defined thus : -----To concur; come into harmony ; give natural assent ; unite in mental action; exchange of promises ; make an agreement; arrange, to settle”. As to an `agreement’ it is said therein : A coming or knitting together of minds; A coming together in opinion or determination; the coming together in accord of two minds on a given proposition ; in law a concord of understanding and intention between two or more parties”. Similarly, ‘Consent’ has been denied therein to mean : “A concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith there is a difference between consenting and submitting every consent involves a submission but a mere sub mission does not necessarily involve consent------ There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. And if a woman resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not ‘consent’----Express consent : That directly given, either viva voce or in writing. It is positive, direct, unequivocal consent requiring no inference or implication to apply its meaning ----that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption, that the consent has been given.”
In Corpus Juris Secundum (Volume 15) ‘conspiracy’ has been defined to mean : A combination of two or more persons intentionally participating in the furtherance of a preconceived common design and purpose is essential to constitute a conspiracy... one person .cannot conspire with himself. Furthermore, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy. The mere fact that each of several defendants acted illegally or maliciously with the sumo end in view does not constitute a conspiracy, unless such acts were done pursuant to a mutual agreement----the mere knowledge, acquiescence, or approval of the act, without co-operation or agreement to co-operate, is not enough to constitute one a party to a conspiracy. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose... no formal agreement is necessary; it is sufficient that the minds of the parties meet understandingly so as to bring about an intelligent anti deliberate agreement to do the acts and to commit the offence charged, although such agreement is not manifested by any formal voids or by a written instrument”.
In Halsbury’s Laws of England (4th Edition, Volume II) `conspiracy’ is said to mean as follows: “Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court.
The essence of the offence of conspiracy is the fact of combination of agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as that combination per fists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or mire persons pursued the same unlawful object at the time or in the same place ; it is necessary, to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other”.
Glanville Williams, at page 212 of his Criminal Law (Second Edition) has defined a ‘conspiracy’ to mean : “A conspiracy is not merely a concurrence of wills but a concurrence resulting from agreement ..... This view of the nature of offence is borne out by a dictum of Martin B. in Barry (1865) : “The parties must put their heads together to do it.”---------- “Conspiracy” mans a breathing together ; and two People cannot breathe together unless they put their heads together. Of course, they can metaphorically put their heads together by correspondence through the post, or even by correspondence with a third party but some sort of communication there must be.”
In Corpus Juris Secundum (Volume 3) an `agreement’ is said to mean; Accordance ; an assent, coming together or knitting, concord, concurrence or union of two or more minds to the same thing, opinion, determination, proposition, thing done, or thing to be done ; an exchange of promises understanding, arrangement or stipulation. In short, everything done or committed by the compact of two minds is universally and familiarly called an agreement”.
In the Judicial Dictionary by Stroud (1951 Edition), consent has been defined to mean : “all act of reason, accompanied with deliberation, the wind weighing, as in a balance the good and evil on each side ........... You ‘consent’ to the doing of that which you are yourself doing it ; Every consent’ to an act involves a submission; but it by no means follows that a mere submission involves consent.”
The Shorter Oxford English Dictionary (Volume I) defines the word ‘agreement’ to mean : “The action of pleasing; consenting; setting at one, atoning; A coming into accord; a mutual understanding.” It also defines `consent’ thus : To agree together, or with; to act or be affected in sympathy Voluntarily to accede to or acquiesce in a proposal, request etc --------Voluntary agreement to or acquiescence In what another proposes or desires”. The word ‘conspire’ also has been defined therein to mean: To breathe together: To combine privily so do something criminal, illegal, or reprehensible, to commit treason or murder; To combine in action or aim; to concur, co-operate as by intention”.
Now ail this wealth of literature in which the words ‘ agreement’, ‘consent’, and ‘conspiracy’ have been so thoroughly and vividly defined ought to suffice to allay any doubt that ‘criminal conspiracy’ as envisaged in section 120-A, P. P. C., has to be the product of two consenting minds; uninfluenced by any consideration of threat, intimidation, coercion or undue influence. The fact that this has to be so and respecting which there ought to be no doubt whatever, should be readily appreciated from the pithy and penetrating expressions used in all the said literature such as “To concur; come into harmony; give mutual assent ; unite in mental action; exchange of promises; make an agreement; arrange; to settle; a coming or knitting together of minds; voluntarily yielding the wilt to the proposition of another; acquiescence or compliance there-----with there is a difference between consenting and submitting every consent involves a submission, but a mere submission does not necessarily involve consent; the parties must put their heads together to do it; conspiracy means a breathing together; and two people cannot breathe together unless they put their heads together ; you `consent’ to the doing of that which you are yourself doing it”.
It may be pointed out that for all the said literature, as to the expressions used therein, namely, ‘consent’, and ‘conspiracy’ the foundation seems to be the classical judgment Denis Dowling Mulcahy v. The Queen (1868LR3HL306) ; in which Willes, J., defined the ‘conspiracy’ to mean consisting not merely in the intention but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in Intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of a criminal means”,. Similarly at page 325 of the judgment, Lord Chelmsford defined a conspiracy’ thus : -
“It is a mistake to say that conspiracy rests in intention only. It cannot exit without the consent of two or store persons, and their agreement Is an act in advancement of the intention which each of them has conceived in his mind. The argument confounds the secret arrangement of, the conspirators amongst themselves with the secret intention which each must have previously had in his own mind, and which did not issue in act until it displayed itself by mutual consultation and agreement”.
This definition of `conspiracy’ has not only stood the test of more than a century, but the same has been followed by the Courts of all the common law countries, as well as the Courts of the Indian Sub-Continent without any exception. Now what I would like to emphasise from the judgment of Lord Chelmsford is the italicized words in general and the words with the secret intention which each must have previously bad in his own mind, and which did not issue in act until it displayed itself by mutual consultation and agreement” in particular. Now a look at these words would show that in order to reach an agreement, it must be shown that the conspirators had tire secret ‘intention’ which each one must have previously, held in his own mind, and which issued in an act only after the bolding of mutual consultations between themselves. The emphasis on the words intention” and ‘which each one must have previously held in his own mind”, must be noted, as in them lie the essence of what an ‘agreement’ is. Recalling a well-known legal epithet that la man is judged by his actions, as even the devil knows not what his intention’ is, it would follow that intention’ must necessarily reside in the inner recesses of the mind of a person and remain there as a secret until it is displayed in the physical environments by an act of which notice can be taken. Seen in this context, it should hardly need any further discussion that an ‘agreement’ has to be the product of the independent minds of two or more persons without any threat, intimidation, coercion or undue influence exercised by the one over the other. While saying this, I am conscious of the fact that intention’ can as well be planted in the mind of a person, say, by persuasive reasoning and logic. But that will be a different situation than a case in which a person is threatened or forced to submit to the will of the other. For example, let us look at the religious missionaries who go about propagating to all and sundry their views about the ideals of their religion and in the process they do seem to succeed in some measure by converting some people to their faith. This is the method which I would name as the persuasive method by which `intention’ is planted by the missionaries in the mind of others and which issues in an act only when the latter convert to the faith of the said missionaries. As against this, if a person is threatened, intimidated, coerced or subject to undue influence, with a view to making him change his faith, can it be said that he had any intention to do so or for that matter given his ‘consent’ in that behalf ? It is because of such eventuality that in the literature quoted hereinbefore it has been said that every consent involves a submission ; but a mere submission does not necessarily involve consent”.
Now if I have been right in this conclusion, it would be difficult to agree with the learned counsel that an agreement’ of criminal ‘conspiracy’ should be treated differently than an ‘agreement’ under the Contract Act. In fact, in Quinn v. Leathem (1901 Appeal Cases 495), the House of Lords not only followed its earlier judgment in Malcahy’s case but also held that “The essential elements, whether of a criminal or of an actionable conspiracy, are, in my opinion, the same, though to sustain an action special damage must be proved”. Apart from the fact that in the preceding discussion I have confined myself to be consideration of agreement’, as popularly understood, but frankly I do not see any reason as to why reference may not be made to section 2(e) of the Contract Act, 1872, in which agreement’ has been defined to mean “Every promise and every set of promises, forming the consideration for each other, is an agreement”. Furthermore, in clause (a) of the said section, it is said that “When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal ; and (b) “!When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise”. Now from this it would be seen that the words “signifies to another his willingness----with a view to obtaining the assent of that other”, appearing in sub-clause (a) of the said section presuppose that the person concerned was evidently displaying his ‘intention’ to the other, which he previously held in his own mind, with a view to obtaining his assent thereto, and when the latter accepted the said proposal the same matured into a ‘promise’. Looked at from whatever angle, therefore, an agreement’ has to be the product of free consenting minds without there being the slightest indication of the exercise of any pernicious influence by one over the other.
The learned counsel, it may as well be pointed out, has not been right to contend that an ‘agreement’ of a civil nature would be enforceable under the Contract Act, because according to sub-clause (h) of section 2 of the said Act, an ‘agreement’ is enforceable in law only if it is a contract and not that every agreement’ is enforceable.
The learned counsel next argued that Archbold in Criminal Pleading, Evidence and Practice has, at page 1680 of his Treatise, distinguished the case of Quinn v. Leathem but with respect he is mistaken. In fact, the learned author has preferred to the said case with approval, but as to the application of it is to the criminal remedies he has observed that the statement of law contained therein “must be read subject to the provisions of the Conspiracy and Protection of Property Act, 1875, and the Industrial Relations Act, 1971 ; but it is submitted that such a combination as above stated is still indictable. At common law it certainly was indictable”. It would thus be seen that although in England, there existed on the Statute Book the said two Acts, which in the case of criminal conspiracies may have watered down the effect of the common law conspiracy, yet the learned author has owned the ratio of the said judgment.
The learned counsel next argued that Lord Lindley in Quinn v. Leathem (supra) had taken a different view than the one taken by Lord Brampton. With respect, this statement is incorrect. It is true that Lord Lindley does not seem to have dealt with the question, namely, the essential elements, whether of a criminal or of an actionable conspiracy” are the same but that would not mean that he had disagreed with the view taken by Lord Brampton. Furthermore, Archbold in Criminal Pleading, Evidence and Practice, to which reference has already been made, as well as Gour, on the Penal Law of India, both have referred to the said view taken by Brampton, J. with approval. Not only this but Gour has, at page 941 of his said Treatise (referring ‘to section 120-A, P. P. C.) observed thus :-------
“This definition in this section is taken from that formulated by Lord Brampton” in Quinn-v. Leaihem (supra).
From this it would follow that the contention raised by the learned counsel is misconceived.
Now by keeping in view all the preceding discussion as to what an ‘agreement’ is let us examine the language of section 120-A, P. P. C. in which the words used are : “When two or more persons agree to do, or cause to be done :--(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.” It is well settled, and in respect of which no law need be quoted, that s while construing a statute, the language used therein generally should ‘be given its normal meaning. Seen in this context the words used in section 120-A, P. P. C. to the effect “when two or more persons agree” would mean the voluntary agreement of the two and not the one brought into existence by the exercise of any pernicious influence by one over the other so as to rob him of his free volition in the matter. This in my view can be the only meaning which the said words must bear, as otherwise the Legislature could as well have expressed itself thus ; “When two or more person: agree or made to agree to do or cause to be done”, etc. Bearing this principle in mind, therefore, the definition of the words ‘agree’, ‘consent’ and ‘conspiracy’ already quoted from the wealth of legal literature ought equally to be applicable to the word ‘agree’ used in section 120-A, P. P. C.
Section 10 of the Evidence Act, 1872, which is attracted only to a trial held under section 120-B, P. P. C. would further clarify the said position, as it runs as under :-----
“10. Things said or done 6y conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
ILLUSTRATIONS
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against Pakistan.
Now this section which is an exceptional section as it is applicable only in a trial under section 120-B, P. P. C. clearly lays it down that before anything said, done or written by anyone of the conspirators in reference to their common intention can be used against the other, the existence of reasonable ground to believe mist be shown to exist that two or more persons have conspired together to commit an offence or an actionable wrong. If the word “conspired” used therein was to be construed differently than the way in which it has been defined in the wealth of legal literature quoted hereinbefore it would lead to an anomalous situation inasmuch as the act of conspirators could as well be mistaken for the joint act committed by two or more persons and vice versa. To illustrate this point, led us recall the well-known saying in respect of an ‘agreement’ as defined in section 2 (e) of the Contract Act, 1872, that every ‘agreement’ is not a ‘contract whereas every contract’ includes in itself an ‘agreement’. From this it should be obvious that whereas an act committed by two or more conspirators would include in itself the concept of joint ness’, but the converse cannot be true, unless the joint act is proved to have been committed in pursuance of a conspiracy. In this respect reference may usefully be made to page 92 of the Law of Evidence by Monir, in which the leaned author has observed as under :-
“Conspiracy means something more than the joint action of two or more persons to commit an offence ; if it were otherwise, section 10 would be applicable to any offence committed by two or more persons jointly, and with deliberation, and would thus import into a trial a mass of hearsay evidence which the accused person would find it impossible to meet.”
And again at page 90, “section 10, Evidence Act, 1872 makes it clear that apart from the act or statement of the co-conspirator, some prima facie evidence must exist of the antecedent conspiracy in order to attract section 10”,. It tray be mentioned that the learned counsel on both sides have agree) with this enunciation of the law. But even so reference may- be made in that behalf to Maqbool Hussain v. State (P L D 1960 S C (Pak.) 382) ; Mirza Akbar v. The Ring-Emperor (I L R 1940 Lah. 612 ), H. H. S. Gill and another v. The King (AIR 1948 P C 128), ; Sardul Singh Gaveeshar v. State (AIR 1957 S C 747 ). Vishindas Lachhmandas v. Emperor (I L R. 1943 Kar. 449) and Abdul Aziz v. Emperor (137 I C 317 ).
A comparison of the respective schemes contained in section 107 and section 120-A, P. P. C. would clarify the position further. Section 120-A, P. P. C. has already been reproduced, therefore, it would suffice to reproduce here section 107, P, P. C. which runs as under ;-
“107. Abetment of a thing.---A person abets the doing of a thing. who :--.
First.-Instigates any person to do that things ; or
Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing ; or
Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.-----A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, a thing to be done, is said to instigate the doing of that thing.”
Now this Section, in the secondly part of which, there existed the offence of conspiracy, was already there on the Statute Book when by Act VIII of 1913, section 113-A, was introduced in the Penal Code in which “criminal conspiracy” has been defined. It is true that by a cursory examination of the said two sections an impression can easily be formed as if Legislature, by enacting section 120-A. has repeated himself in respect of the same subject covered by section 107, P. P. C. But this impression would be incorrect. In this respect first the following statements of object and reasons, as to the passing of Act VIII of 1913, appearing at page 941 of the Penal Law of India by Gour, would be instructive to be taken notice of;
“The sections of the Indian Penal Code which deal directly with the subject of conspiracy are those contained in Chapter V and section 121-A of that Code. Under the latter provision, it is an offence to conspire to commit any of the offences punishable by section 121 of the Indian Penal Code or to conspire to deprive the King of the sovereignty of British India or of any part thereof or to overawe by means of criminal force or show of criminal force the Government of India orany Local Government, and to constitute a conspiracy under this section it is not necessary that any act or illegal omission should take place in pursuance thereof. Under section 107 abetment includes the engaging with one or more person or persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in parsuance of that conspiracy, and in order to th3 d)in, of that thing In other words, except in respect of the offences particularised in section 121-A conspiracy per se is not an offence under the Indian Penal Code --------”
“Experience has shown that dangerous conspiracies are entered into India which have for their object aims other than the commission of the offences specified in section 121-A of the Indian Penal Code and that the existing law is inadequate to deal with modern coadition3. The present Bill is designated to assimilate the provisions of the Indian Penal Code to those of the English law with the additional safeguard that in the case of a conspiracy other than a conspiracy to commit an offence some overtact is necessary to bring the c3nspiracy within the purview of criminal law. The Bill makes criminal conspiracy a substantive offence, and when such a conspiracy is to commit an offence punishable with death, or rigorous imprisonment for a term of two years or upwards, and no express provision is made in the Code provides a punishment of the same nature as that which might be awarded for the abetment of such an offence. In all other cases of criminal conspiracy the punishment co temple trod is imprisonment or either description for a term not exceeding six months, or with fine, or with both.”
This ‘statement of object and reason,’ as to the passing of Act VIII of 1913, is self-revelatory. The main reason for which the bringing of section 120-A, P. P. C. was thought as necessary on the Statute Book was that the existing law in respect of conspirators, as contained in sections 107 and 121 of the Penal Code, was found to be deficient because “Experience has shown that dangerous conspiracies are entered into in India which have for their object aims other than the commission of the offences specified in section 121-A of the Indian Penal Code and that the existing law ii inadequate to deal with modern conditions”. It is true that the offence of abetment by conspiracy was already provided for in section 107, P. P. C. but it was not enough because conspiracy as such, unless it was proved that an act or illegal omission had taken place in pursuance of the conspiracy and in order to the doing of that thing, was not an offence. This deficiency in the law was, therefore, made up by the enactment of section 120-A, P. P. C. as now no sooner two or more parsons agree to do or cause to be done an illegal act, or an act which is not illegal by illegal means, than the offence of criminal conspiracy’ would be complete, and all of them punishable under section 120-B of toe Penal Code.
Gour at page 859 of the Penal Law of India (1978 Edition) has this to say on’ abetment’ within the meaning of section 107, P. P. C.
“Three things are essential to complete abetment as crime: There must be an abettor; he must abet; and the abetment must be an o8ence. This section analyses the meaning of the word “abet” as used in this con:. Action. It lies down that a person who instigates another to do a thing abets him to do that thing. In this sense, it makes instigation tantamount to abetment. But a person may not only instigate another, lie may co-operate with him and His co-operation may consist of counsel or conjoint action. In Pother case there is abetments. It is not difficult to see why person who aids another in the commission of a crime is regarded as an abettor. Nor is it difficult to imagine why one who plots a crime and thereby facilitates its commission should be placed in the same category. Bat a person who merely “instigates” another may have no idea of the crime that may be committed in consequence. And, moreover, is an “instigator” worse than a co-conspirator, whose abetment is not complete unless “an act or omission takes place in pursuance of that conspiracy ?” The question then depends upon the precise meaning attaching to the expression “instigates”, “engages” and “intentionally aids which have there fore to be examined. As is apparent from the above discussion the definition of abetment in this section includes not merely instigation which is the normal form of abetment but also conspiracy and aiding In order that there may be abetment there must be either instigation or intentional aiding or engaging in a conspiracy as laid down in this section. General advice is far too value an expression to prove abetment.”
Having thus observed as to what an abetment is within the meaning of section 107, P. P. C. the learned author at page 860 proceeds to distinguish section 107 from section 120 A, P. P. C. as follows :--
“The distinction between the offence of abetment under the second clause of section 107 and that of criminal conspiracy under section 120-A is this. In the former offence a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence.”
At page 865, the learned author gives a very instructive example as to what an instigation is and the same may be usefully noted;
“So if A orders his servant to hire another to murder B and the servant hires C with the money of A, A is an abettor in the same way and to the same extent as if he had himself hired C to commit the deed.” ‘
Incidentally this also should answer the misgivings of the learned Special Public Prosecutor who while arguing that an agreement’ of criminal `conspiracy’ should not be equated with an `agreement’ under the Contract Act and in that behalf had quoted the example of a child under seven years of age, as well as of a hired assassin.
The learned author has again at page 868 of his Treatise referred to quite a few judgments and observed that “Before the enactment of Chapter V-A in 1913, conspiracy as such was treated as only a species of abetment and was held to be punishable as such (section 120). But conspiracy relates to the stag; of preparation other than abetment though when it develops beyond the preparatory stage it amounts to and is punishable as an abetment. A mere conspiracy does not amount to abetment, and is not punishable as such ------- A person A may propose to B : “Let us murder C”. B may dissent or say nothing or he may agree. A’s proposal is met by the first clause. But it is clear that if p agrees, be is equally guilty. His case is met by this clause. As soon as A and B agree both become liable, B un far this clause and A both under this aid the list clause. If B dissents. A is nevertheless liable as an investigator under the last clause, though neither A nor B is liable under this. The two clauses thus then overlap, but this clause is intended to cover which, but for it, would not fall under the first or next clause”.
The learned author again at page 869 has this to say as to the liability of a conspirator vie-a-vie of an abettor : “Indeed, almost all cases of abetment, resulting in crime thereupon would fall under the head of conspiracy, the only difference being that the abettor, as such, may be less guilty than the conspirator, as where he merely instigates another to do a thing which the other may not agree to do, in which case, the offence abetted is not actually committed in consequence of the abetment An ex-ample would-sull3.a to illustrate the difference. A instigates B to murder C, B refuses. Hire A has abutted B but there is no conspiracy. Even in such a case, if B agrees to commit- murder, but does no other overt act is pursuance of the agreement, both neither. A nor B can be charged of conspiracy. But if B does an overt act, both A and B would b: equally guilty, though in a case of abetment A would be less guilty than B. Tae distinction between the two cases is at times fine and in many cases, it is without a difference ; but the distinction exists and has b.-en male in the law, which must be recognised”.
Finally, the learn3d author at page 877 has this to say on the same subjects “If a person instigator anther or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment under section 115 or section 116, I.P.C., even if the offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abutted mist be committed. This is clear from Explanation 2 and Illus. (a) thereto, to section 108, I. P. C.”
In Pramath Nath Taluqdar v. Saroj Ramjan Sarkai ((1962) 2 SCR 297), the same question bad fallen for consideration and it was held as under :----
“The gist of the offence of criminal conspiracy is in the agreement to do an illegal act ‘or an act which is not illegal by illegal means -----------Therefore, the distinction between the offences of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. ‘Willes, J observed in Malcahy v. The Queen (1868) L. R. H. L. 306 -------------Put very briefly, the distinction between the offence of abetment under the second clause of section 107 and that of criminal conspiracy under section 120-A is this. In the former offence a mere combination of persons or agreement between them is not enough. As act or illegal omission, must take mace in pursuance of the conspiracy and in order to the doing of the thing conspired ‘for ; in the latter offence the mere agreement is enough, if the agreement is to commit an offence.”
From this rather lengthy, albeit useful discussion, it should now be clear that section 107, P. P. C. deals with three situations :----
(1) Abetment simpliciter ; For example if A tells B to kill C, A has abetted B and would be liable to punishment regardless of the refusal of B to oblige him ; (2) Abetment by conspiracy : If in the said example B agrees with A, but does not commit any overt act in pursuance of the said agreement, neither A nor B can be charged of abetment by conspiracy as the further requirement of the secondly part of section 107, P. P. C. is the taking place of an act or illegal omission in pursuance of the said conspiracy and in order to the doing of that thing ; and (3) that any person who intentionally aids, by any act or illegal omission, the commission of the intended object of the conspiracy by abetment also would be guilty of abetment.
In the case falling under section 120-A, P. P. C. however, when two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means, the offence of criminal conspiracy would to complete and both of them liable to punishment under section Ii0-B, P. P. C. I feel that this ought to be sufficient to underline the subtle distinction existing between the offence of abetment by conspiracy within the meaning of section 107, P. P. C. and a criminal conspiracy as envisaged by section 120-A, P. P. C. Furthermore, the said distinction has to be there, as otherwise why would the Legislature have felt the necessity to bring section 120-A, P. P. C. on the Statute Book’ by an amendment made in 1913 ? ‘
Similarly, reference may be made in this connection to Mirza Akbar v. King-Emperor (A I R 1940 P C 176) at page 180 of which appears the following dictum :----
“The statement so far from admitting conspiracy with the appellant, categorically denied it. While the woman stated that the appellant had threatened to kill her and her husband if she refused to marry him, also had, she said, refused his advances and stopped him coming to the house.”
In that case of Mehr Taja, who entered into a criminal conspiracy with the appellant, made statement before the Magistrate in terms which has been reproduced in the parenthesis. From the dictum of their Lordship, however, it is clear that the said statement “so far from admitting a conspiracy with the appellant, categorically denied it”. It would, therefore, follow that any threat, etc. would clearly negate the free consent of a party and subsequently his submission to the will of the other would not mean that he had actually agreed with him.
Finally, notice may be taken of Vebster’s New International Dictionary (Second Edition) at page ill of which, after defining the word ‘conspire’, reference has been made to Gen. XXXVII. 18 of the Bible in which mention is made of the famous conspiracy of the brothers of Joseph to slay him. It would be interesting to reproduce the said part from the Bible which is as follows :- .
“18: And when they saw him afar off, even before he came near unto them, they conspired against him to slay him.
19. And they said one to another, Behold, this dreamer cometh.
20. Come now therefore, and let us f lay him, and cast him into some pit, and we will say, Some evil beast hath devoured him and we shall see what will become of his dreams.
21. And Reuben heard it-----------------------.
22. And Reuben said unto them, Shed no blood, but cast him into this pit -------------------
24. And they took him, and cast him into a pit.”
The same incident is mentioned in Sura XII, Ayats 8, 9, 10, 15, 16 and 17 of the Translation and Commentary on the Holy Qur’an by Yusuf Ali (1973 Print) which respectively read as under :--
“8. They said : “Truly Joseph and his brothers are loved more by our father than we : But we are a goodly body : Really our father is obviously wandering (in his mind)
9. “Slay ye Joseph or cast him out To some (unknown) land, That so the favour Of your father may be Given to you alone (There will be time enough) For you to be righteous after that;
10. Said one of them : “Slay not Joseph, but if yet must Do something throw him down To the bottom of the well : as He will be picked up by some caravan of travellers.”
15. So they did take him away, And they all agreed To Throw him down To the bottom of the well ..................
16. Then they came To their father in the early part of the night, Weeping.----------
17. They said:---------Oh our father! We went racing with another, And left Joseph with our things : And the wolf devoured him.” But thou will never-believe us Even though we tell the truth.”
Now it is obvious from the revealed scriptures itself that human nature is made up of elements which sometimes drive men to conspire with, like-minded people in order to accomplish some ‘coveted’ object for the realization of which he finds himself inadequate. Now what was the ‘coveted’ object for the realization of which the brothers of Prophet Yousuf (may peace be upon him) conspired together to assassinate him? This question has been answered in the said verses which is that they thought Prophet Yousuf (may peace be upon him) was loved more dearly by his father. It should be noted, however, that in that behalf first they deliberated together ; agreed upon the said treacherous plan, persuaded their father to let Yousuf (may peace be upon him) accompany them on the pretext that he would play around and enjoy himself ; and finally they threw him down into the well in pursuance of their said conspiracy. In this respect the version to given is the Bible is substantially the same, but on seeing Prophet Yousuf coming may peace be upon him), the conspirators exclaimed :-
“Come now, therefore, and let us slay him, and cast him into some pit.
Now watch the spontaneity of the said exclamatory language The words-Come now”, by which the others were harkened to lead their hand in the execution of the intended object of their conspiracy have in their womb the germ; which alone must necessarily spawa an agreement as once the suggestion conveyed therein was accepted by the others there came into existence an ‘agreement’ between them. This to my mind should suffice to show that the concept of ‘agreement’ was also known to the ancients, which in spite of the passage of thousands of years has not only retained its purity, but has been owned and followed in all the civilised countries of the world. With this discussion now it is time to close this chapter. If I have not been able to show that an agreement’, or for that matter an agreement of criminal conspiracy has to be the product of the exercise of spontaneous and free volition by two or more persons without there being the slightest indication of any threat, coercion or undue influence exercised by one over the other, it would be futile to pursue the said discussion any further.
The learned Special Public Prosecutor, however, argued and here I would like to quate him in his own words, that in eanspiracy like any other offence, if there is the defence of pressure or duress it has to be raised by the accused and none other. If any accused raises a plea of pressure or duress, his plea has to be tested in accordance with section 94, P.P.C. In order to see the force of his contention, section 94, P.P.C. may be reproduced :-
“94. Act to which a person is compelled by threats.-Except
murder; and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which at the time of doing it, reasonably cause the apprehension that instant death to that parson will otherwise be the consequence : Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which has been subject to such constraint.
Explanation 1.--A person who, of his own accord, or by reason of a threat of being beaten, join a gala of dacoits, knowing their character, is not entitled to benefit of this exception, on the ground of his having been compelled by his associates to do anything. that is an offence by law.
Explanation 2.-A person seized by a gang of dacoits, and forced by threat of instant death, to do a thing which is an offence by law ; for example, a smith compelled to take his tools and to force the door of a house for the daeoits to enter and pluadar it, is entitled to- the benefit of this exception.”
Now this section appears in Chapter IV of the P.P.C. and is ;aptiaaed : “C).aaeral Exceptions”. Thi Chapter starts with section 76 and ends with section 105. Now in all these sections, the separate treatment of each one of which is not necessary, provide for the defence open to an accused parson if for example he commits an offence under a mistake of fact ; or a Judge acting Judicially in the exercise of any power which is or in which in good faith he believes to be given by law ; or. An offence committed by accident ; or by a child under the age of seven years; or by a parson of unsound mind, etc. From this it should follow that reliance on section 94, P.P.C. by the learned Special Public Prosecutor is misconceived the object of section 94, P.P.C. clearly is to provide to an accused, except in the case of murder and offences against the State punishable with death, a complete defence as to the offence committed by him which he was compelled to commit by threats and which at the time of committing the same reasonably caused him the apprehension that he would otherwise be instantly put to death. This being the plain connotation of section 94 P.P.C., frankly I have not been able to appreciate the contention of the learned counsel. Further more, the section in question, because the conspiracy entered into by Mr. Masood Mahmood with appellant Bhutto elated to the assassination of Mr. Kasuri, could not be invoked by Mr. Masood Mahmood in his defence, as the section itself lays it down that the defence provided a therein will not apply in the case of murder and the offences ‘against the State punishable with death. In the case of Mr. Masood Mahmood all this seems to be academic, because by the pardon grated to him under section 337, Cr. P. C., he ought to have no worry on this score.
I feel that section 90, P.P.C. would seem to provide not only a complete answer to the contention of the learned counsel, but would go a long way to support the conclusion that an ‘agreement’ of criminal ‘conspiracy’ has to be the product of free volition exercised by two or v more persons. This section runs as under :-----
“90. Consent known to be given wider fear or misconception.----A consent is not such’ a consent as is intended by any section of this Code, if ‘the consent is given by a person under fear or injury or under a misconception of fact and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception ; or
Consent of insane person.-----If the consent is given -----------
Consent of child.-----Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”
The words “if the consent is given by a person under fear or injury”, appearing in the section are sigr6ficant. The word “injury” has been defined in section 41, P. P. C. to mean “any harm whatever illegally caused to a person, in body, mind, reputation or property”. Now if by the examination of the evidence of Mr. Masood Mahmood it is found that he had been threatened or coerced or undue influence was exercised on him by Mr. Bhutto. which might` have caused him any harm whatever in body, mind, reputation or property, in .order to make him agree a4 to the assassination of Mr. Kasuri, evidently the ‘consent’ given by him thereto would be no ‘consent’ in the eye of law, and consequently no agreement of criminal conspiracy can be said to have come into existence between them. At a glance it may seem as if this section is meant to provide immunity to an accused, but this is not the- position, because under section 94, P. P. C., he would be answerable for his part in the commission of the crime unless of course he would be able to prove that he was compelled to commit the same by threats (except in the cafe of murder and offences against the State punishable with death) which at the time of Committing the same had reasonably caused him the apprehension that otherwise he would be put to death instantly.
Some observation was made or contention raised during the course of the arguments that the pressure brought on and the undue influence exercised on Mr. Masood Mahmood by appellant Bhutto would not prevent the formation of the agreement of conspiracy entered into between them as under the Law of Contract at best the said agreement would be voidable and not void. Now this argument seems to have proceeded in ignorance of the fact that no sooner two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means than under section 120-A, P. P. C., an agreement of criminal conspiracy between them would be complete and each one of them punishable under section 120-B, P. P. C. Unlike a voidable contract, therefore, which can be avoided by an aggrieved party through proper steps taken by him in that behalf, none of the parties to the said agreement of criminal conspiracy could possibly save himself from the consequences of punishment, because having entered into a criminal conspiracy, each one would be liable to punishment under section 120.8, P. P. C., as the sail conspiracy itself, regardless of any other considerations, is a substantive offence.
Having dealt with all the available law and legal literature on the subject as to what ‘consent’, agreement’ and ‘conspiracy’ means, I would now again advert to the relevant part of the evidence of Mr. Masood Mahmood to see if he can be said to have entered into a criminal conspiracy with Mr. Bhutto. His evidence is that Being a member of the Police Service of Pakistan, he attained the rank of Deputy Inspector-General, and in 1969 was selected as Deputy Secretary-General, CENTO with Headquarters at Ankra. On his return from Ankra in 1970, at his own request, he was posted as Deputy Secretary, Ministry of Defence; later promoted a5 Joint Secretary and Additional Secretary, and thin appointed to what he has called a ‘punishment post’, namely, as the Managing Director, Board of Trustees Group Insurance and Benevolent Fund in the Establishment Division. After his said appointment, he made attempts to meet with Mr. Vaqar Ahmad, the then Secretary Establishment, but did not succeed. Sometime in early April, 1974, however, Mr. Vaqar Ahmad called him to his office and told him that he was to meet with Mr. Bhutto on April 12, 1974, but before that he should come over and see him. Mr. Vaqar Ahmad was very good to him in the said meeting, he told him that Mr. Bhutto was going to offer him an appointment which he must accept. He then dilated on the state of his personal affairs saying how his wife was not keeping good health; his children were small and that under the revised Service Rules an officer of Grade 21 and above could be retired at anytime. This conversation left him with the impression that his job was at the mercy of the Prime Minister and Mr. Vaqar Ahmad. On April 12, 1974, he called on Mr. Bhutto who was kind to him, praised his integrity and capacity for hard work and offered him the past of Director-General, FSF. He told him not to accept any instructions from the then Minister of Interior, namely, Mr. Abdul Qayyum Khan. He advised him not to terminate the services of the re-employed officers without his prior permission, as they were all useful people, and in this connection specially mentioned the name of appellant Mian Muhammad Abbas. Mr. Bhutto then told him to be on the right side of Mr. Vaqar Ahmad. He said he expected him to forge the F.S.F. into a deterrent force, and that since Mr. Vaqar Ahmad did nit like him he should be on his right side. Between 12th April, 1974 and 23rd April, 1974, while he was stilt functioning in his old job, he was visited by Mr. Saeed Ahmad Khan (p, W. 31, the then Chief Security Officer to Mr. Bhutto, and his Assistant Mr. Abdul Hamid Bajwa (deceased) several times, who gave him the impression that if he declined the job offered to him by Mr. Bhutto he would not be able to see his wife and children again.
In June, 1974, when Mr. Bhutto was addressing the National Assembly, Mr. Kasuri interrupted him at which Mr. Bhutto, ignoring the speaker of the House, addressed him directly saying to keep quiet, adding that he had had enough of him and that he would not tolerate his nuisance any more. A day or two later, he (Masood Mahmood) was sent for by the Prime Minister. He told him that he was fed up with Mr. Ahmad Raza Kasuri, and that appellant Mian Muhammad Abbas knew all about his activities, as he hid already been given instructions, is predecessor Mr. Haq Nawaz Tiwana (deceased), to get rid of him. He therefore, told him to ask Mian Muhammad Abbas to get on with the job and produce the dead body of Mr. Ahmad Raza Kasuri or his body bandaged all over” He further told him that he would personally hold him responsible for the execution of this order.
On hearing this he was naturally shaken, and pleaded with Mr. Bhutto that to execute his order would be against his conscience and certainly against the dictates of God. However, Mr. Bhutto lost his temper, and shouted at him saying, that he would have no nonsense from him or from Mian Muhammad Abbas. He raised his voice and said” You don’t want Vaqar chasing you again, do you ?” With this said unpleasant experience, he returned to his office in a perplexed state of mind, called Mian Muhammad Abbas and conveyed him the order of Mr. Bhutto.
Now by going through his said evidence can there be any doubt to say that he was not a free agent in the matter ? and that he succumbed to the design of Mr. Bhutto only because he was threatened in that behalf, as also because of the veiled threats extended to him by Mr. Vaqar Ahmad to the effect that an officer of Grade 21 (which he was), could be retired from service at any time and that he should not refuse to accept the job which Mr. Bhutto was going to offer him ? After having been thus cajoled and threatened, the impression created on the mind of Mr. Masood Mahmood was, and here I would quote him in his own words, “on hearing this he was naturally shaken” and “he returned to his office in a perplexed state of mind”. Now by the lengthy discussion made hereinbefore as to what an agreement’ is clearly 49 agreement of criminal conspiracy can be said to have come into existence, between Mr. Masood Mahmood and Mr. Bhutto. Furthermore he claims to have executed the said order of Mr. Bhutto, as he had no choice in the matter, but that would be tantamount to submission’ on his’ part which according to Black’s Law Dictionary, and other legal Treatise (supra); would not mean that he had consented to the proposal made to him by Mr. Bhutto because ‘every consent involves submission : but the mere submission dogs pot necessarily involve consent”. On the contrary it should be oblivious that by his said evidence the offence committed by Mr. Bhutto would be that of abetment under section 107, P. P. C. more so when in accordance with the provisions of section 90, P. P. C. the order of Mr. Bhutto carried out by him, Mr. Mamood Mahmood cannot be said to have given his consent thereto as by the type of threat extended to him by Mr. Bhutto and Mr. Vaqar Ahmad both he was injured in mind within the meaning of that expression appearing in section 44, P. P. C.
Furthermore, from the evidence of Mr. Masood Mahmood, it is clear that undue influence was brought to bear on him both by Mr. Bhutto and Mr. Vaqar Ahmad as undue influence has been defined thus in the Black’s Law Dictionary (Revised Fourth Edition) as under :.--
“Undue influence consists (1) in the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him--- the purpose of obtaining an unfair advantage over him ; (2) in taking an unfair advantage of another’s weakness of mind; or (3) in taking a grossly oppressive and unfair advantage of another ‘A necessities or distress : Buchanan v. Pra l 39 N D 423, 167 N W 488 (489), Dolliver v. Dolliver 94 Cal. 642, 30 P. 4.”
As against this it is said therein that “influence obtained by persuasion and argument, or gained by kindness and affection is not prohibited where no imposition or fraud is practised, and where the persen’s will is not overcome”. Now by keeping these two definitions m juxtaposition with each other, it should be clear that Mr. Masood Mahmood was made to agree to the design of Mr. Bhutto by the exercise of ‘undue influence’ over him because he was then the all powerful Prime Minister of the country, whereas Mr. Masood Mahmood was a Government servant who could be retired from service at any time. “Persuasion and agreement or kindness and affection” was not the meshed by which Mr. Bhutto made him agree to his design but harsher methods were used against him.
Coming now to the contention of the learned Special Public Prosecutor to the effect, that the existence of criminal conspiracy in this case between Mr. Masood Mahmood and Mr. Bhutto has to be gathered not only from the evidence of Mr. Masood Mahmood but also from all the surrounding circumstances. He argued that there was no difference between the mode of proof of the offence of conspiracy and any other offence under the Penal Code with the only difference that in the case of a criminal conspiracy section 10 of the Evidence Act, 1872, has introduced the doctrine of agency whereby the act of one conspirator would be admissible in evidence against the other conspirators. He contended that the “proof of the existence of conspiracy is generally a matter of inferences deduced from certain criminal acts or parts done in pursuance of an apparent criminal purpose in common between then,”. In support of his contention, he relied on a large number of judgments such as Dents Dowling Mulcahv v. The Queen (1868 L R 3 H L 306), Ashulosh Chattopoahyay and others v. Nalinakshya Bandopadhyay and others (A I R 1937 Cal. 467), Nadir Ali Barqa Zaidi and others v. The State of U. P. (A I R 1960 All, 103), Bhagwan Swaup v. State of Maharashtra (AIR 1965 S C 682) and many others which may not be reproduced, as also on 15-A, Corpus Juris Secundum, p. 903 ; Halsbury’s Laws of England. IV Edition (Volume 11), pare. 53 ; Corpus Juris Volume 12, p. 543 ; 16 American Jurisprudence (II edn.) p. 7; Gangoli on ‘Joint Acts, Abetment and Conspiracies’ (1926. Edition). Now by going through all the said judgments and legal literature, including a large number of other judgments, I have not come across a single case in which the typing of evidence given by Mr. Masood Mahmood was tend red by the prosecution in proof of the existence of criminal conspiracy between the accused. . It is true that in almost all cases cited at the bar the Chapter as to the existence of conspiracy between the accused therein was unfolded by the evidence of approvers, but none of them claimed to have entered into the conspiracy due to threats, coercion, intimidation or undue influence exercised over them by the others. Furthermore, in each one of the cases, there was the authentic evidence of recoveries such as bombs, explosive materials. literature and printing machines or correspondence exchanged between the accused during the time when the ‘conspiracy was afoot and remained in existence. In these circumstances, therefore, it is difficult to agree that by the type of evidence given by Mr. Masood Mahmood in the High Court, any criminal conspiracy came into existence between him and Mr. Bhutto. It would, therefore, follow that even if the contention of the learned counsel is accepted it would not help him because (l) all the evident: brought on the record of the case under section 10 of the Evidence Act will have to be ignored; and (2) that sin any event the said evidence, when read with the evidence of Mr. Ma3ood Mahmood would oqually be irrelevant in proof of the, existence -of conspiracy between him and Mr. Bhutto. To put it differently since the„ express evidence given by Mr. Masood Mahmood in the High Court not only does not establish the existence of any conspiracy between him and Mr Bhutto (but at best an abetment on the part of the latter) how can all the evidence brought on the record of the case under section 10 of the Evidence Act, under the assumption of the existence of a criminal conspiracy, be looked into, as the ram: clearly mist also relate to the proof of conspiracy by abetment and not criminal conspiracy.
By going through my notes, however, I noticed that the learned Special Public Prosecutor relied on Kalil Munda and others v. King Emperor (1 L R 1901 Cal. 797) to show that a criminal conspiracy could a3 well be found between, A and B, if A orders B to commit a crime. I can quite see his point because ; if support can be found for his said submission in the said judgment, perhaps he would be justified to contend that Mr. Masood Mahmood, being a civil servant, could not have resisted the pressure put upon him by Mr. Bhutto and hence had no option but to obey his order for the assassination of Mr. Ahmad Raxa Kasuri. By going through the judgment, however, it is clearly distinguishable. It may be mentioned that the judgment was delivered in the year 1901 whereas section 120-A, P. p!. C. was brought on the Statute Book by an amendment in 1913. However, this fact by itself is not decisive. What - is decisive, however, is that in that case the learned Judges, in view of the evidence on record held that there existed conspiracy between the appellants and in pursuance thereof they committed acts of violence, arson and similar other depredations. Their finding in that regard appears at page 802 of the judgment which reads 84s under:--
“Having regard to the similarity of these outrages, and the large tract of country, over which they occurred, there can be no doubt that the occurrence, with which we are immediately concerned, were the result of some conspiracy, and there can equally be no doubt that it was the preaching and exhortations of Birsa that brought about the said conspiracy.”
It is true that three of the appellants therein, namely. Kali, Chamra and Malgu were specially ordered by their spiritual. leader namely, Birsa to proceed to certain specified places for the perpetration of the outrages already agreed upon, but it was found on the evidence that the three of them were the disciples of Birsa, frequently attended the meetings addressed by Birsa, in which he preached violence again4t the British Government, and so they were held to be parties to the said conspiracy. Seen in this context the said orders given to them by Birsa were evidently given in pursuance of the conspiracy of which they were members. Furthermore, the judgment turns more on the language of the secondly clause of section 107, P. P. C, namely, A conspiracy by abetment’, and hence there is nothing in the said judgment which can be said to have laid down any diff.-rent principle titan the one laid down in the large number of judgments cited from the bar.
Having said this, however. I find myself in agreement with the learned Special Public Prosecutor that an agreement of criminal conspiracy need not be in any particular form : it can be oral; in writing partly oral ; partly in writing, or inferable from the conduct of the parties; as well as from the surrounding circumstances. This principle would seem to be equally applicable in the case of an agreement’, as understood in the common parlance, as well as under the Contract Act unless the act itself requires it to be in a particular form. in which case the requirement of the Act has to be followed. In this behalf reference may be made to the well-known practice of some of the large business concerns which send articles of merchandise to consumers on the basis of “approval’ without there ever having been any contact between them directly or otherwise. However, if the recipient of the articles accepts and appropriates the same it would at once give rise to the coming into existence not only of an ‘agreement’ but a valid contract between him and the said commercial concern with the result that he would be obliged to’ pay the price of the articles. Now normally a contract between two or more persons is preceded by an ‘agreement’ which i;i turn i3 preceded by a proposal made by one and the same accepted by the other. This is what is called a formal contract, but two cases may be quoted from page 869 of the Penal Law of India by Gaur, (1978 Edition), to show how an agreement can as well come into existence wholly, casually informally. The first case which is quoted as Kelly’s case (2C&K379) ; arose in the following circumstances :-
Two persons, namely. Kelly and MacCarthy, had been engaged by the prosecutor far unloading oats from a vessel, arid carrying them to his warehouse, Kelly being employed to draw them from the vessel and MacCarthly to carry them to Kelly’s trams on wh;ch they wire carried. Whilst one bag was being this conveyed, Kelly said to MacCirthy,: “it is all right” and shortly afterwards MacCarthly stole son; oats of tyro sacks and pltt them under the tram. Kaly was absent When this was done, but returned and took away the stolen oats with the rest. It was contended for Kelly that he could not be convicted of theft, but Maule, T., said that it was all one transaction in which both concurred, and that both having concurred, and both being present at some parts of the transaction, both might be convicted. The learned author says, and here I would quote his words : “They w,ru2a: be convicted here of conspiracy under section 120-A which is much wider than the abetment punishable under this section”. The facts in the second case, which is reported as Ram Dial’s case ((1)A.I.R 35 All. 26) were that a woman prepared herself for sari in the presence of the prisoners who followed her to the pyre and stood by, one of them, her step-son, crying “Ram. Ram”, and another asking the deceased to repeat “Ram, Ram” in order to become sati, Upon these facts the Court found the prisoners guilty of conspiracy and accordingly punished them.
Furthermore, if an agreement is partly expressed and partly implied in the sense that it is incomplete and to prove its existence reliance is placed on circumstantial evidence then the latter must coalesce with what has been expressed and not inconsistent therewith. Examples in this respect have already been given in some part of the discussion earlier but to clarify the matter further let us again illustrate this paint. In this respect I would take the evidence of Mr. Masood Mahmood as a concrte example. Now by reading his evidence it should be clear that. if the same could be said to have brought into existence a criminal conspiracy between him and Mr. Bhutto then the said agreement would be complete in all respects and would nee no further evidence to it complete. It is his own case that in the meeting held by him with Mr. Bhutto the latter had expressed his abhorrence of Mr. Kasuri and told him to remind Mian Muhammad Abbas who already had his order thirough the former director-General, FSF, to assassinate Mr. Kasuri. He protested but Mr. Bhutto shouted at him saying “you don’t want Vaqar chasing you again, do you?” He further told him that he would personally hold him responsible for the execution of his order. On hearing this he was “shaken”. returned to his office in a “perplexed state of mind”, called Mian Abbas to his office and conveyed him the said order of Mr. Bhutto. Now this being his evidence, can it be said that the so-called agreement entered into between him and Mr. Bhutto was not complete is every detail. The answer is obvious. In these circumstances, therefore, how can it be contended that all the circumstantial evidence in this case such as a prior’ and subsequent’ conduct of Mr. Bhutto has to be taken into consideration in proof of the existence of the criminal conspiracy between him and Mr. Masood Mabmood. A priori it would follow that since there came into existence no criminal conspiracy between Mr. Bhutto and Mr. Masood Mahmood, all evidence brought on the record of the case under section 10 of the Evidence Act such as the ‘prior’ and ‘subsequent’ conduct of Mr.,Bhutto, the evidence of Mr. Saeed Ahmad Khan (P. W. 3), Mr. Welch (P. W. 4). and late Mr. Abdul Hamid Bajwa has to be rejected. See for example : Maqbool Hussain v. The State (P L D 1960 S C 382) , Balmukand v. Emp nor (A.I.R 1915 Lah.16) ; Kunfalal Ghose v. Emperor (A I R 1915 Cal. 26) , Vishnadas Lachmandas and’others v. Emperor (A.I.R 1944 Sind1) , H. H. B. Qlll and another v. The King (AIR 1948 PC128) , Badri Rai and another v. State of .8fhar (A.1.R 1958 S C 953) and Bhagwan Swarup v. State of Maharashtra (A I R 1965 S 682).
The learned Special Public Prosecutor also relied on sections 8, 9 and 13 the Evidence Act, 1872, in support of the finding recorded by the High Court as to subsequent conduct of Mr. Bhutto as well as the con. duct of P. Ws. Saeed Ahmad Khan, M. R. Welch and late Mr. Abdul Hamid Bajwa. In support of his contention he relied on a large number of judgments such as : Emperor v. Percy Henry Burn (4 I C 268), Laijam Singh v. Emperor (A I R 1925 All. 405 ) and Rajmal Marwadl v. Emperor (A I R 1925 Nag. 372). As against this, Mr. Yahya Bakhtiar, the learned counsel for Mr. Bhutto relied on Chatru Malak v. Emperor (A I R 1928 Lab. 681 ), Shankarshet v. Emperor (A I R 1933 Bom. 482), Chandrika Prasad v. Emperor (A I R 1930 Oudh 321 ), Muhammad v. State (A I R 1934 Lab. 695). and Mohanalal Bhanalal Goela v. Emperor (A I R 1937 Sind 293 ).
Upon the peculiar facts of this case, however, there seems to be no need to consider the rival contentions of the learned counsel for the parties or the judgments cited by them as already I have recorded the conclusion that (I) all the evidence relating to the subsequent conduct of Mr. Bhutto or for that matter of P. Ws. Saeed Ahmad Khan, Mr. M. R. Welch and late Mr. Bajwa can as well be explained on the basis of another reasonable hypothesis ; and (2) in any event the same would be inadmissible against Mr. Bhutto, because the prosecution has failed to prove the existence of any criminal conspiracy entered into by him with Mr. Masood Mahmood, or anyone else for the assassination of Mr. Kasuri, with the result that the said evidence brought on the record of the case under section 10 of the Evidence Act has to be excluded. In this respect reference may profitably be made to Sardul Singh Caveeskar v. The State of Bombay (AIR 1957 SC747 ) ; in which the scope of section 10 of the Evidence Act was considered. At page 764 of the judgment, after recalling the principle of law laid down in A I R 1940 P C 176 this is what was observed :-`,It appears, therefore that 67 I A 336 ; A I R 1940 P C 176 (A) is a clear authority for the position that in criminal trials, on a charge of conspiracy evidence not admissible under section 10 of the Evidence Act as proof of the two issues to which it relates. viz., of the existence of conspiracy and of the fact of any particular person being a party to that conspiracy, is not admissible at all”.
Mr. Yahya Bakhtiar the learned counsel for Mr. Bhutto also raised during the arguments a large number of legal questions (22 in number) again the impugned judgment of the High Court. However, since some of these questions have been dealt with hereinbefore or else in the judgment proposed to be delivered by my Lord the Chief Justice, they need neither be reproduced here nor dealt with again except those questions for the resolution of which regrettably I have not been able to agree with the view taken by his Lordship. Furthermore, in respect of some of the questions dealt with by my Lord the Chief Justice, I sincerely regret not to have teen able to agree with the conclusions recorded by him but since for the purpose of my judgment they are not relevant I would just make a mention of them without dealing with them in any manner. Now these questions are covered by the topics: “Implications of Camera Proceedings” ; “Scope of section 540-A, Cr. P. C.”; and “Bias”. In this view I would now proceed to examine the mist essential question in this case, namely, the construction of section 111, P. P. C. which runs as under :----
“111. Liability of abettor when one art abetted and different act done.-When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it;
Proviso.-Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.”
The view taken by my Lord the Chief Justice is that in the light of all the facts and circumstances and the evidence in this case, the conviction of the appellants by the High Court under sections 120-B/302, P. P. C. read with section 301/109/111, P. P. C. and section 3J7 read with section 109. P. P. C. is unexceptionable. But with profound respect, I hive not been able to agree with the said conclusion nor with the reasoning in support thereof. My own reasons for the resolution of this question are as follows :-----
Mr. Yahya Bakhtiar, the learned counsel for Mr. Bhutto contended that the different act resulting as a probable consequence of the act abetted should be foreseeable at the time the conspiracy was hatched, that is that the different act was likely to be committed to order to the carrying out of the act abetted irrespective of the subsequent development. In support of this contention the learned counsel relied on Po Ya v. Emperor (A I R 1919 Low. Bur. 20), harnam Singh v. The Emperor (A I R 1.919 Lab. 256 ), Queen EmPress v. Mathura Das and others (I L R 6 All. 491), Mumtaz Ali v. The Emperor (A I R 1935 Oudh 473 ), Girja Prasad Singh and others v. Emperor (‘ A I R 1935 All. 346) and Jaimangul and others v. The Emperor (A I R 1940 Bom. 126 ).
On the other hand, Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor, submitted that in construing the words “probable consequence” in the proviso to section 111, the criterion should be as to in what relation the act done stands to the act abetted; and if it stands in close proximity that is when the act done is the result .f the act abetted, it would fall within the ambit of those words even if it be incidental. Consequently, as the death of Nawab Muhammad Ahmad Khan was the result of the act abetted, that is the firing, of automatic weapons at Ahmad Raza Kasuri, it must be regarded as the probable consequence of such abetment.
It was next urged that the execution of the plan was itself a part of the conspiracy and, therefore, the abettor cannot take the benefit of the proviso if he has limited imagination or through his recklesssness is not able to foresee the probable consequence of the abetment irrespective of the fact whether the details in regard to the time, place and manner to accomplish the unlawful object were or were not given as he had himself let loose the evil force in motion. In other words, the probable consequence of abetment was spelt out as foreseeable from the order given by the abettors to kill Ahmad Raza Kasuri. In support of his contention the learned Special Public Prosecutor relied on a passage on page 161 of Russel on Crimes (12th Edition) ; American Jurisprudence (Volume 14), pages 813, 829 and 831 ; Commentary on Law of Crimes by Dr. Nand Lal (19..9 Edition) at page 534 ; Sahib Ditta v. The Emperor ((1885) 20 P R 43 (Cr.)) ; Victor ,Edward Betts and Herbert Charles Ridely (22 Cr. App. R 194 `` ) and John Boyed v. United States (142 U S 1077 ).
The controversy, therefore, turns on the true construction of the proviso. Both the counsel agree that it has to be construed strictly. But the main dispute is a3 to the test to be applied in determining whether the abettor had in contemplation the probable consequence, of the abetment whilst giving the orders to kill Ahmad Raza Kasuri having regard to the language of the proviso.
In construing a penal pro, vision there is no manner of doubt that an act entailing penal consequences should not be applied to anyone who is not brought within it in express language. Accordingly the rule of strict construction requires that the language shall be so, construed as no case shill be held to fall within it which does not fall within the reasonable interpretation of that enactment.
Again, it is an accepted norm of interpretation that where two equally reasonable interpretations are possible, the penal provision should be so construed as not to place a burden on the subject; and that further in case of doubt the benefit should go to the subject. If section 111 stood minus the proviso then the controversy would not have presented any difficulty as according to its unqualified language the abettor would have teen liable for the different act in the same manner and to the same extent as the principal. The proviso, however, puts an embargo and if the proviso were to be construed loosely then it is difficult to say to what extent it might not be stretched. To guard against this danger the words used therein should be given reasonable interpretation to bring a case within it. It applies to a case where different act is committed as a probable consequence of the act abetted ; and that the act abetted should have been committed in pursuance of the conspiracy constituting such abetment. The expressions ‘probable consequence of abetment’ and ‘in pursuance of the conspiracy which, constituted the abetment’ regulate the application of section 111. The former expression conveys the meaning of a likely event or which can reasonably be expected to follow from the act abetted but would not include an unusual or unexpected result, whilst the latter confines the act abetted to have been committed to achieve the immediate object of the conspiracy, which is not without a purpose for the abettor could not be held liable for a distinct act not in any way connected with the immediate object of the conspiracy. In both the expressions the word ‘abetment’ is of significance which expressly refers to persons engaged in the conspiracy for the doing of the thing, according to section 107, secondly, which defines it. Therefore, there seems to be a nexus between the words ‘probable consequence’ and the agreement to do ‘that thing’ which reasonably leads one to conclude that the likely or the expected result must be foreseeable at that crucial time otherwise the principal can make the abettor liable for any indiscretion on his part which cannot be the object of the proviso as it was enacted to draw a line between the result likely to flow from the act abetted as distinct from an unexpected act. (See Illustration B of section 111).
It will not be difficult in a case where the conspirators agree to carry out the plan in a particular manner to determine the liability of the abettor as the likely result would be foreseeable. For example, If A and B conspire to kill C by a fire-arm whilst he is being driven to a theatre; and if B fires at C killing his driver then obviously A cannot escape the liability for the result which should have been foreseeable as it was likely that the driver might also be hit by the bullet. Again, where the immediate object is to abduct a girl, with force if necessary, then grievous injury or possible death to her rescuers must be a likely or expected result to follow in which case the abettor would be liable if such result ensues. Similarly, illustration ‘C’ to section 111 also furnishes an example of the abettor being burdened with the liability of the likely result.
The difficulty arises in a case where the execution of the plan is left to the principal and it is then for him to choose how the immediate object is to be achieved but it: that case too the test, as formulated by Straight J., in Queen-Empress v. Mathura Das and others which is in no way different would be applicable, namely, “whether having regard to the immediate object of the instigation or conspiracy the act done by the principal is one which, according to ordinary experience and common sense, the abettor must have foreseen as probable. The determination of this question as to the state of man’s mind at a particular Moment must necessarily always be a matter of serious difficulty, and conclusions should not be formed without the most anxious and careful scrutiny of all the facts”. Therefore, the relevant time could not be an other but when the conspirators engaged themselves to do a particular thing which can throw light as to the state of man’s mind and to maker the probable consequence foreseeable otherwise, being absent from the place of the incident, it would not be possible to judge it. ‘
If the contention of the learned Special Public Prosecutor is given effect to in its entirety, then howsoever erring the principal is, the abettor would be liable, for, it was he who had let loose the evil force in motion and, therefore, should have foreseen the act abetted. Such a wide interpretation cannot be given to the words ‘probable consequence’ as otherwise it would be impossible to fix any limits to an abettor’s liability. Again it will not be possible to generalise instances in which such a probable consequence can be foreseeable or not and as Straight, J., said, “conclusions should not be formed without most anxious and careful scrutiny of all the facts”. This approach is fundamental and sounds correct. In the above-cited case the immediate object was to commit robbery simpliciter but excessive force was used as a result of which two persons died. It was held on a consideration of facts and circumstances of the case that the abettor could not be held liable under section 111 as it could not be said that he had foreseen the probable consequence of the act abetted on the test enunciated above.
Again, the facts in Po Ya v. Emperor also illustrate an example where the instigation was to strike, of the headman but the blow fell on his son who was sitting next to him in the same bullock-cart after striking the aide of the headman and it was held that thus result was not the probable consequence of instigation.
In Hornam Singh v. Emperor while committing robbery one of the robbers fired and killed a man and it was held that such killing was not the probable consequence of robbery as instances were not wanting where robberies were committed without murders and, therefore, even if section 111 was invoked still it could not be regarded as the probable consequence of robbery.
In Mumtaz Ali v. Emperor Mst. Ashrafan ‘balled out to her son” Mumtaz whip; grappling with Mst. Sukka who brought out a Lathi from his house and gave a blow on her head which proved fatal. It was held that the call could only mean an instigation to chastise her but not to kill her. As such her death was not regarded as the probable consequence of such instigation.
The facts in Jaimangal and others v. Emperor (A I R 1936 A11, 437), are distinguishable, as there the matter was decided on the consideration that the persons attacking Ram Parasad and Ram Lakhan had combined against their common enemy and as such each abetted the conduct of the other within (he meaning of section 107. and as each one of them had participated in the attack. they were liable under section 114. The principle laid down in this case will not be applicable as it was distinguishable on facts and the case fell under a different section.
In Sonappa Shina Shetty v. Emperor (A I R 1940 Bom,126), the instigation was to kill A but the principal killed B as he came to rescue him and it was held that the killing of B was a distinct act for which the abettor was not liable, as it ass neither the probable consequence nor done in pursuance of the conspiracy. This case provides an instance where the ingredients of the proviso were not fulfilled and, therefore, section 111 wag not held to be applicable.
“----------In the case of Girja Prasad Singh and others v. Emperor there was an affray over the stealing of mangoes by Mst. Bhagwati, Bishnath shouted “maro sale ko” upon which Girja Prasad who wore a kurta and had a lathi and Mst. Bhagwati both caught hold of the deceased Barka, whereafter Girja Prasad stabbed ham in the abdomen with a spear head which he took out from kurta. The question arose as to the offence committed by Bishnath and it was held that the words constituting the instigation meant nothing more than thrashing and if Girja Prassd stabbed him with a spearhead it was not a probable consequence of abetment. In holding so, the learned Judges held :-
“--------- In our judgment Bishnath can only be convicted for abetment of murder if the use of the spearhead was a probable consequence of the shout “maro sale ko” and that the blow was struck under the influence of the instigation. Having regard to the fact that the stab with the spear head followed immediately .after Bishnath’s shout “maro sale ko’ it might well be argued that the act of stabbing was committed under the influence of the instigation, but even so that is not enough to make Bishnath liable. The act of stabbing being a different act from the act of thrashing which was the act instigated, the prosecution must show not only that the act of stabbing was committed under the influence of the instigation, but also that it was a probable consequence of the instigation to thrash.
A probable consequence of an act is one which is likely or which can reasonably be expected to follow from such an act. An unusual or unexpected consequence cannot be described as a probable one. When the consequence of an act is such that a reasonable man could not be expected to foresee that it would follow from such an act, such consequence cannot be described as a probable one. On the contrary it can only properly be described as an unexpected, unlikely or improbable consequence. It is a well-established rule of construction that words in a statute creating a criminal offence must be construed strictly. In our judgment a wider meaning to the phrase `probable consequence’ in section 111, Penal Code, should not and cannot be given, otherwise it would be impossible to fix any limits to an abettor’s liability. When the act done is different from the act instigated, an abettor, in our view, is only liable for such a different act if it was a likely consequence of the instigation or if it was an act which the instigator could reasonably have been expected to foresee might be committed as a result of his instigation.” ‘
The above cases affirm the test as laid down by Straight, J., in Queen Empress v. Mathura Das and others to determine the culpability of the abettor in the facts and circumstances of each particular case and strictly follow the rule of construction of a penal statute, that is, unless the result is likely or expected to follow from the act abetted and as such was foreseeable, the abettor cannot be held guilty of it.
Adverting now to the cases relied on by the learned Special Public Prosecutor, the principle laid down in Victor Edward Betts and Herbert Charles Ridely ; and Alan Bainbridge is reflected in the following passage (also cited) at page 161 of Russel on Crimes (12th Edition), which was vehemently pressed into service :--
“ . .. .But if the principal complies in substance with the instigation of the accessory, varying only in circumstances of time or place, or in the manner of execution the accessory will be involved in his guilt : as if A commands B to murder C by poison, and B does it by a sword or other weapon or by any other means, A is accessory to this murder; for the murder of C was the object principally lit contemplation, and that is effected. And where the principal goes beyond the terms of the solicitation, yet if in the event, the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony. Thus if A advices B to rob C, and in robbing him B kills him either upon resistance made, or to conceal the fact or upon any other motive operating at the time of the robbery in such a case A is accessory to the murder as well as to the robbery. And if A solicits B to burn the house of C, and B does it accordingly ; and the flames taking hold of the house of D, that likewise is burnt ; A is accessory to B in the turning of the house both of C and of D. The advice, solicitation, or orders of A were pursues in substance ; and the events, though possibly falling out beyond his original intention, were in the ordinary course of things, the probable consequences of what B did under the influence and at the instigation of A.”
But in the present case the liability is to be assessed upon the language of section 111, P. P. C. and not by the principle of common law on which the liability of the accessory to the felony is grounded. It will be the words of the section which provide a guide to determine the liability of the abettor and the above statement of law must be read subject to its limitations.
John Boyed v. United Stares (142 U S 1077) ; enunciates the same principle of liability as laid down in Jaimangal and others v. The Emperor namely, that each participant abets the conduct of the other and, therefore, is liable for the result likely to flow from the Pct abetted. Here there is no comparison with the liability burdened under section 111.
In Sahib Ditta v. The Empress ((1885) 20 P R 43 (Cr.)), the instigation was to kill Nihal through charms but he was killed by a different method ; and it was held that he was nonetheless guilty of abetment of murder. The learned Special Public Prosecutor in placing reliance on this case has referred to the statement of law at page 46 of the Report which is as under;
“The rule for determining criminal responsibility in cases of this class is thus laid down in Bishop on Criminal Law;
Section 641.-`One is responsible for what wrong flows directly from his corrupt intentions ; but not, though intending wrong, for the product of another’s independent act. If he set in motion the physical power of another, he is liable for its result. If he contemplated the result, he is answerable though it is produced in a manner he did not contemplate. If he did not contemplate it in kind, yet if it was the ordinary affect of the cause, he is responsible. If he awakes into action an indiscriminate power, he is responsible. If he gave directions vaguely and incautiously, and the persons receiving them acted according to what be might have foreseen, would be the understanding, he is responsible. But if the thing done was a fresh and independent product of the mind of the doer, the other is not criminal therein merely because when it was done, he meant to be a partaker with the doer in a different wrong.”
The principle of liability is widely stated as compared to what Straight, J., said in Queen-Empress v. Mathura Dos and others, which the learned Special Public Prosecutor conceded to be the correct statement of law. If this be so then the rule of interpretation requires that the burden, other than what flows from the reasonable interpretation of the words `probable consequence’, should not be placed on the abettor.
The quotation at page 534 of the Commentary by Dr. Nand Lai (1929 Edn.) dealing with the liability of the abettor cannot be read beyond the limit judicially interpreted.
It will not be useful to refer to Corpus Juris-Secundum as the case has to be determined on the language of the section and not the general principle.
Coming now to the facts of the case, Mr. Masood Mahmood allegedly stated that appellant Mr. Zulfikar Ali Bhutto told him that his predecessor had already been given direction to get rid of Mr. Ahmad Raza Kasuri and that he further told him to tell Mian Abbas to get on with the job and produce the dead body of Mr. Ahmad Raza Kasuri or his body bandaged all over. This was all that he stated. Can it then be said that he would have foreseen the death of Nawab Muhammad Ahmad Khan as a probable consequence of the immediate object of the conspiracy while leaving the execution of the plan with Mian Abbas? Mian Abbas then secured the services of Mr. Ghulam Hussain, approver, to trace and finish off Mr. Ahmad Raza Kasuri at Islamabad, who on 24th of August, 1974, after contacting Mr. Ahmad Raza Kasuri on telephone spotted him sitting in his car parked between M. N. A.’s Hostel and the National Assembly Building, and talking to a stranger, ‘standing outside the car. He directed his companions, namely, Mulazim Hussain and Allah Bakhsh not to open fire as there was likelihood of the stranger being hit. Later, the same day, he failed to carry out the order in spite of having followed the car of Mr. Ahmad Raza Kasuri who was the only occupant and instead told Mulazim Hussain to fire in the air. Again, in regard to the incident at Lahore on the fateful day he said to his companions to find out Mr. Ahmad Raza Kasuri so as to give some result and thereafter they left in a jeep towards Model Town and spotted his car proceeding towards Ferozepur Road where “the main road for Model Town branches off from Ferozepur Road”. However, they did not follow it as they were turning on the road leading to Model Town in which case they had to reverse the jeep before following the car ; and finally succeeded in tracing it parked in front of a house in Shadman Colony where wedding was being celebrated inside a Shamiana, after telephoning his residence to find out his whereabouts. This place was at a distance of about 80 to 90 yards from the roundabout where Shah Jamal Road ends and Shadman Road begins. A number of other cars were also parked there and the place was illuminate. After the detection of the car, they returned to the office of FSF where they resided and chalked out a plan from where to launch the attack on Mr. Ahmad Raza Kasuri. A site at the intersection facing the house where the car was parked was selected. At 10-30 p.m. they went with their automatic weapons. Arshad Iqbal was posted at the intersection to ensure that Mr. Ahmad Raza Kasuri and his car was there. Rana Iftikhar was posted at the intersection behind a shoulder-high hedge. Arshad Iqbal was ordered to fire in the air whilst Rana Iftikhar was next to fire at the first car which came before him after the first burst. It. is here significant to note that Ghulam Hussain stated that one of the reasons for ordering Arshad Iqbal to fire in the air was that he stood facing the Shamianas and ii he fired at the car of Mr. Ahmad Raza Kasuri then “people in the Shamianas might be hit” and so also was the danger of people sitting in the car or those walking on the road being injured. Finally, at mid-night he heard three bursts and saw a car moving without headlights and proceeding towards Canal Road.
From the narration of these facts it is clear that the approver was not only conscious of the fact that except for Mr. Ahmad Raza Kasuri no one else should be hurt but taken precautions in that behalf. In the case of the car of Mr. Kasuri, however, he evidently disregarded the said caution which in that respect makes his conduct inconsistent. The question, which therefore, arises is whether by firing at the car of Mr. Ahmad Raza Kasuri with automatic weapons, as a result of which his father was killed, can it be said that the killing of his father was the likely result of the act abetted by Mr. Bhutto? The learned Special Public Prosecutor has indeed argued that having set the forces of evil in motion, Mr. Bhutto would be liable as the act of firing on the car of Mr. Ahmad Raza Kasuri was the act abetted by him although in consequence of it his father was killed. I am afraid if this argument is taken to its logical conclusion it would be tantamount to obliterating the obvious distinction between section 109 and section 111, F. P. C. Unlike the proviso to section 111, P. P. C. in which the expressions “probable consequence of the abetment” and “the act done or committed under the influence of the instigation or with the aid or in pursuance of the conspiracy which constituted the abetment” appear, and will have to be give their proper meaning, there is no such requirement in section 109, P. P. C. Furthermore, section 109, P. P. C. is obviously a residuary section whereas section 111, P. P. C. is a special section applicable only to the facts of the case of present kind.
The conspiracy in this case remained floating for a period of six months during which period the conduct of the approver, in respect of the precautions which he had taken throughout that no stranger should be hurt, should be the touch-stone on which must depend the resolution of the said question. Having thus exhibited, rather an unusual degree of care and caution why on earth in respect of the incident at Lahore he suddenly became indifferent by throwing into the wind even the elementary principle of care and caution? It is his own evidence that the car of Mr. Ahmad Raza Kasuri was parked at a distance of just about 90 paces from the spot where Arshad Iqbal was posted by him. In this view the least that he ought to have done was to ensure that when Mr. Kasuri entered his car he was not accompanied by any other person. ‘In these circumstances, and also of having .been conscious that no or, else sitting in the Shamianas should be hurt, the firing made on the car of Mr. Kasuri by Arshad Iqbal and Rana Iftikhar with automatic weapons was not only a wreckless act but under the circumstances an independent act of their own. This conclusion on the language of proviso to section 111, P. P. C. would seem to be the only possible conclusion, as Mr. Bhutto cannot be said to have foreseen the possibility of the murder of Nawab Muhammad Ahmad Khan when he gave the order for the assassination of Mr. Kasuri.
The learned Special Public Prosecutor, however, emphasised the fact that since the attack on the car of Mr. Kasuri was made by automatic weapons, Mr. Bhutto could not escape the responsibility, if in the process Nawab Muhammad Ahmad Khan was killed. Now testing the :force of his contention let us assume for a moment that-----
(1) the attack in question was made on the car of Mr. Kasuri in a crowded street with automatic weapons, as a result of which a passerby was killed, or
(2) in a public bus in which Mr. Ahmad Raza Kasuri was travelling and again a passenger was killed.
Will it have been possible on these facts then to hold that the killing of the said two persons was the probable consequence of the abetment of Mr. Bhutto? when he gave the order for the assassination of Mr. Kasuri. Upon the language of the proviso to section 111, P. P. C., which has to be narrowly and reasonably construed, there should be no difficulty to answer both these questions in the negative. The prosecution case no doubt is to the contrary, but then if the argument of the learned Special Public Prosecutor is taken to its logical conclusion, it could as well mean that finding no other suitable opportunity, a bomb could as well be placed by or at the behest or approver Ghulam Hussain in an aircraft, in which Mr. Kasuri was travelling, in consequence of which many innocent lives could have been lost. Will it have been possible then to hold that the said act was the probable consequence of the abetment of Mr. Bhutto? when he gave order for the assassination of Mr. Kasuri. The answer should be obvious.
The High Court, in convicting appellant Bhutto under section 301 read with sections 111 and 109, P. P. C. has not .taken into consideration, with respect, the reasonable interpretation of section 11.1, but has disposed of the question on its language in disregard of the peculiar facts and circumstances of the case. At least some attention should have been diverted to the limitation placed by the proviso which regulates the application of section 111, P. P. C. which was not done. In the result, the High Court erred in convicting the appellant under section 301 read with section 111, P. P. C. As for the application of section 109, P. P. C., different considerations arise with which I shall presently deal.
Mr. Ijaz Hussain Batalvi, submitted in the alternate that the abettor would be liable under section 301 read with section 109, P. P. C. on the premise that the principal, as an agent of the abettor, acts in furtherance of the common intention as in the case of participants sharing the common intention in killing another person instead of the intended victim. The liability arises as the law takes into account the transfer of malice as embodied in section 301.. Thus, where the firing was intended to kill Mr. Ahmad Raza Kasuri but instead the bullet hit his father, resulting in his death, the abettor would nonetheless be liable for his murder without there being the requisite intention or knowledge by reference to section 109, P. P. C.
Section 301 is a species of culpable homicide and is illustrated by illustration (a) to section 299, P. P. C. though it does not find place in the definition of the term “culpable homicide” in section 299, P. P. C., V. B. Raju’ in his Commentary on the Penal Code (1957 Edn.) says;
“This section does not enact any rule not deducible from the two preceding sections, but it declares in plain language an important rule deducible from those sections just as an explanation to either section 299 or section 300 as it relates to both.” .
Therefore, it cannot be said to be a specific penal provision as its principle is grounded in the preceding sections. The question arises whether the abettor can be held guilty for having committed this offence by reference to section 109. Section 109, P. P. C. reads as under : .
“1,09. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made fur its punishment.----Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation.-An act or-offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment :”
This section from its language contemplates the abetted act to have been completed that is, if murder is instigated and the victim is killed, only then it provides fur the punishment of such an abetment but only when there is no other specific provision in this behalf ; whereas section 111 deals with the different act having been committed as a probable consequence o abetment. The different act in section 111 would include an offence under section 301, P. P. C, or for that matter any other section of the Penal Code. For example, if the instigation is to commit robbery but in the course o commission of that act violence is used and the victim dies, as a probable consequence of the act abetted, then the death would be a different act within the meaning of section 111, P. P. C. The distinction thus is apparent between the two sections. In one the abetted act is completed and to the p other a different act is committed as a probable consequence of abetment ; and where the Code provides a specific penal provision for dealing with a situation where a different act is committed, section 109 will have no application ; for, that is a residuary provision. It is section 111 which will be applicable. Accordingly, it is idle to contend that the abettor can convicted under section 301 read with section 109, P. P. C.
Mr. Yahya Bakhtiar, the learned counsel next argued that in the High Court no charge was framed against Mr. Bhutto under section 111, p, p. C., yet he has been convicted thereunder which is illegal. He argued that in the three charges framed against him he was given notice fact only of the that----
(1) in the middle of 1974, he conspired with approver Masood Mahmood to assassinate Mr. Ahmad Raza Kasuri through the FSF and thereby committed an offence under section 120-B, P. P. C. ;
(2) in pursuance of the said conspiracy and in pursuance of the directions given by Mr. Masood Mahmood to Mian Muhammad Abbas an attack with automatic weapons was made on the car of Mr. Ahmad Raza Kasuri at Lahore by appellants Arshad Iqbal and Rana Iftikhar under the overall supervision and organization of P. W. Ghulam Hussain, as a result of which his father Nawab Muhammad Ahmad Khan was killed, and thereby committed an offence under section 302 read with sections 109 and 301, P. P. C. ; and
(3) in pursuance of the said criminal conspiracy he aided and abetted in circumstances narrated in charge No. 2, the commission of the offence of attempted murder on the life of Mr. Ahmad Raza Kasuri, and thereby committed an offence punishable under section 307 read with section 109, P. P. C. Upon these facts his grievance is that the High Court had no jurisdiction to convict Mr. Bhutto under section 111, P. P. C. for the following reasons :----
(1) That the framing of a charge under section l11, p. p, C. against Mr. Bhutto was essential, as ‘it relates to a distinct and independent liability than the one envisaged by section 109, p. P. C, ;
(2) that neither the High Court nor the prosecution were even aware of the said requirement of law, as notice of section 111, P. p. C, seems to have been taken only while writing the impugned judgment ;
(3) that Mr. Bhutto had no notice of the charge under section 111 P. P. C. and consequently he had no opportunity to meet the said charge during his trial ;
(4) that in any event there is no evidence on record to sustain the said charge, therefore, the conviction recorded thereunder is not only illegal but without jurisdiction ;
(5) that in the case of constructive liability, with which Mr. Bhutto was charged, no conviction could have been recorded by the High Court under section 111, P. P. C. unless Mr. Bhutto was put on notice of the charge thereunder ;
(6) that in view of the facts and circumstances of this case it would be incompetent for this Court to uphold the said finding recorded by the High Court by invoking in aid sections 237 and 238, Cr. P. C. ; and
(7) that the said error of law committed by the High Court was not curable under sections 535 and 537, Cr. P. C., as Mr. Bhutto has been clearly prejudiced.
In support of his contention, the learned counsel relied on a large number of judgments out of which only the following may be quoted : Jaifar and others v. Idris Ali (P L D 1951 Decca 128), Muhammad Anwar rind another v. The State (P L D 1956 S C (Pak.) 440), Surajpal v. The State of Uttar Pradesh (P L D 1956 S C (Ind.) 21), Amir Bakhsh v. The State (P L D 1960 Lah. 15), The State v. Mian Muhammad Latif and others (P L D 1962 Kar. 756), The State v. Abed Ali (P L D 1963 Dacca 806), King-Emperor v. Charles John Walker (A I R 1924 Born. 450), Nanak Chand v. State of Punjab (AIR 1955 S C 274), Narvirchand and others v. The State (A I R 1952 Madh. Bha. 17 =1952 Cr. L J 246 (Madh. Bha,)), Dhum Singh v. Emperor (26 Cr. L J 1057 (Ail.)=A I R 1925 All. 448) and Raghunath Kandu v. Emperor (27 Cr. L J 152 (All.)).
The learned Special Public Prosecutor on the other hand argued that the contention raised by Mr. Yahya Bakhtiar was only technical, as in view of the- facts and circumstances of this case, this Court would be competent to invoke in aid sections 236, 237 and 238, Cr. P. C. with a view to upholding the finding recorded by the High Court against Mr. Bhutto under section 111. P. P. C. He argued that by the type of charges framed against him he had full notice of the fact that he was charged for the abetment by conspiracy of assassinating Mr. Kasuri through the F. S. F. In that behalf he was charged under section 109, P. P. C , which relates to an offence by abetment, and consequently it would be idle to contend that he had no notice of the charge under section 111, P. P. C. which also relates to the commission of an offence by abetment. In support of his contention he also relied on a large number of judgments : Muhammad Atmar and another v. The State (P L D 1956 S C (Pak.) 440), Amir Bakhsh v. The State (P L D 1960 Lah. 15), The State v. Mian Muhammad Latif and others (P L D 1962 Kar. 756), The State v. Abed Ali (P L D 1963 Dacca 806), Jehanzeb Khan v. The State (P L D 1963 Pesh. 145), King-Emperor v. Charles John Walker (A I R 1924 Bom. 450) and Hanmant Rao v. Emperor (A I R 1925 P C 180).
Before considering the respective contentions urged by the learned counsel, it would be appropriate to reproduce sections 109 and 111, P. P. C. as well as sections 233, 236, 237 and 238, Cr. P. C., which respectively read as under:-
“233. Separate charges for distinct offences.-For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.
Illustration
A is accused of a theft on the occasion, and causing grievous hurt on another occasion. A must be separately, charged and separately tried for the theft and causing grievous hurt.
236. Where it is doubtful what offence has been committed.----If a single act or series of acts of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or
he may be charged in the alternative with having committed some one of the said offences.
2.37. When a person is charged with one offence, lie ran be convicted of another.--(I) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged Under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.
238. When offence proved included in offence charged.-(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he maybe convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(2-A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(3) Nothing in this section shall be deemed to authorize a conviction of any offence referred to in section 198 or section 199 when no complaint has been made as required by that section.
While I would be dealing with these sections in some detail presently, it would be useful to take note of some other sections appearing in Chapter XIX of the Code of Criminal Procedure. The first section of which notice may be taken is section 221, which says that every charge under this Code shall state the offence with which the accused is charged ; if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only ; if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged ; and that the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. The next section is section 222, which says that the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom ; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Section 223, which is the next section says that when the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. The next section is section 225, which says that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the raise as material, unless the amused wits in fact misled by such error or omission, and it has occasioned a failure of justice. Section 227 is the next section, which says that any Court may alter or add to any charge at any time before judgment is pronounced. But every such alteration or addition shall be read and explained to the accused.
The next section is section’ 32, which says that if any Appellate Court, or the Court of Session --------is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by any error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. If the Court is of opinion that the fad’s of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Now a perusal of these sections together would seem to give rise to the following principles--
(1) that the framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the basic requirement of law ;
(2) that an accused has to be put on notice in respect of the charge ether by naming the offence, if the law has given to the offence any name failing which so much of the definition of the offence must be stated as to give to the accused notice of the matter with which he is charged ;
(3) that the charge must contain such particulars as to the person (if any) against whom ; or the thing (if any) in respect of which, an offence has been committed ;
(4) that if in a case the particulars mentioned in sections 221 and 222, Cr. P. C. do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed by him ;
(5) that no error or omission in tile charge shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and the same has occasioned a failure of justice ;
(6) that a Court may alter or add to any charge at any time before judgment is pronounced. But every such alteration or addition must be read and explained to the accused ; and
(7) that if an Appellate Court, or the Court of Session, in the exercise of its revisional powers, is of the opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by any error in the charge, it must direct a new trial to be held upon the charge framed but if the opinion recorded is that no valid charge could be preferred against the accused in respect of proved facts, his conviction must be quashed.
It would thus be seen that these principles do seem to contain the essential particulars of audi alteram partem. The essential question which must be answered in each case would, therefore, be whether, in the absence of a specific and distinct charge framed against him by the trial Court, an accused can be said to have been prejudiced in the sense of having been condemned unheard or else taken unawares or handicapped in his defence. If the Court is of the opinion that be was indeed prejudiced then the Appellate Court must either direct his new trial to be held upon a charge framed in whatever manner it may think fir or else quash his conviction, if the conclusion reached is that in respect of facts proved no valid charge could be preferred against him. This in my view would seem to be the legislative intent gleaned from the said various sections, which indeed are in consonance with the basic norms of the administration of justice, namely, that no one shall be condemned unheard.
Keeping these principles in view, let us proceed to examine the scheme of sections 233, 236, 237 and 238, Cr. P. C. Section 233 need not detain us because it is complementary to section 221 which has already been discussed. However, sections 236, 237 and 238 are the more relevant sections requiring proper construction, as both sides have relied on them in support of their respective contentions. Now section 236 should present no difficulty it is captioned : “Where it is doubtful what offence has been committed,” and these words would seem to provide the key to the operative part of the section. Apart from the illustrations given under the section, which ought to make the scope and connotation of it clear, the section has provided for an uncommon class of cases the solution that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or he may be charged in the alternative with having committed some one of the said offences. The word “doubtful” appearing in the section should be noted, as on this word would turn the fate of the present discussion. Now this and the other sections appear in Chapter XIX under the beading “Of the charge-Form of Charges”. Evidently, therefore, the Chapter mainly deals with the function of the trial Court. It would, therefore, follow that the word “doubtful” appearing in the section refers to the doubt in the mind of the trial Court, for it is the trial Court, which frames a charge/charges against an accused person and not an Appellate Court. This being the plain connotation of the section let us proceed to examine section 237, Cr. P. C. which begins with the words “If, in the case mentioned in section 236”. Now these words would make it clear that the operation of this section is dependent on section 236 Cr. P. C. in which the word “doubtful” has been used. It is true that all the other conditions being satisfied, the jurisdiction under section 237 can be exercised by the trial Court as well as the Appellate Court, but subject to what has been said in section 236, which is that if a single act or series of acts is of such a nature that it is “doubtful” which of several offences the accused may be charged with then he may be tried on any number of such charges or in the alternative with some one of the said offences. To put it differently, if the facts of a case are plain enough not to have given rise to the entertaining of any doubt about it by the trial Court then the exercise of power under section 237 would not be open to it nor to the Appellate Court.
Now from the large number of authorities cited by the learned counsel for both sides it would suffice to deal with one judgment of this Court and two from the Indian Supreme Court, as in the nature of things, the judgments of the High Courts would have no utility as against these judgments. The first judgment from the Indian Supreme Court is Nanak Chand v. State of Punjab (AIR 1955 S C 274). In that case, the appellant alongwith others was charged in the Court of Session under section 148 and section 302 sead with section 149, I. P. C. His trial proceeded accordingly but the learned Sessions Judge held that the charge of rioting was not proved, therefore, he convicted the appellant and others under section 302/34, I. P. C. In appeal by them to the High Court, the High Court convicted the appellant alone under section 302, I. P. C., confirmed the death sentence awarded to him and dismissed his appeal. In appeal before the Supreme Court objection was taken on behalf of the appellant that having been charged under section 302/ 149, I. P. C., both the learned trial Judge as well as the High Court wrongly convicted him under sections 302/34, I. P. C. and 302, I. P. C. respectively, as he was not charged with the latter two offences which were distinct and different than the offence with which he was charged. On behalf of the State it was contended that under section 236 and section 237 of the Code of Criminal Procedure, the appellant could be convicted of an offence which he is shown to have committed although he was not charged with it. But this contention was rejected as follows :-
“Section 237, Cr. P. C., is entirely dependent on the provisions of section 236 of that Code: The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed. In these circumstances if there had been an omission to frame a charge, then under section 237, a conviction could be arrived at on the evidence although no charge had been framed., In the present case there is no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed. There was no room for the application of section 236, Cr. P. C.”
Surajpal v. The State of Uttar Pradesh (1) is the other judgment from the Indian Supreme Court. The appellant in that case and others were charged in the Court of Session under sections 302 and 307 read with section 149, 1. P. C. He was convicted. But in appeal in the High Court, his conviction was altered to one under sections 307 and 302, I. P. C. as he was found to have, during the course of rioting, committed murder of Surajdin through the firing of pistol. Objection was taken on his behalf before the Supreme Court that having been charged in the Court of Session under sections 302 and 307 read with section 149, I. P. C., the High Court had no jurisdiction to convict him under sections 307 and 302, I. P. C. as the offences thereunder were distinctly different than the offences with which he had been charged. To counteract this contention reliance was placed on sections 236 and 237 of the Code of Criminal Procedure on behalf of the State, but the same was repelled as under :---
“It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge under section 149, 1. P. C. puts the person on notice only of two alleged facts, viz. (PLD 1956 S.C (Ind.) 21) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or .not section 149, I. P. C. creates a distinct offend (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as “constructive liability”--a convenient phrase not used in the I. P C. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence. Such a case is not covered by sections 236 and 237 of the Code of Criminal Procedure. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor. The absence,, therefore, of specific charges against the appellant under sections 307 and 302, I. P. C., in respect of which he has been sentenced to transportation for life and to death respectively. is a very serious lacuna in the proceedings in so far as it concerns him. The question then which arises for consideration is whether or not this lacuna has prejudiced him in his trial.”
As to the question of prejudice, the finding recorded by the Court was that the appellant indeed had been prejudiced, notwithstanding the fact that in the Court of the Committing Magistrate he was questioned that Surajdin had been murdered by him by firing from pistol. Accordingly, the Court set aside his convictions and sentences under sections 307 and 302, I. P. C.
Muhammad Anwar and another v. The State (P L D 1956 S .C (Pak.) 440) is the judgment of this Court. In that case six accused were initially charged under section 302/149, P. P. C. but only two of them were proved to have fired the two fatal shots which caused the death of two persons: The said two accused, who were appellants before this Court, were however, convicted under section 302, P. P. C. therefore, an objection was taken or. their behalf that having been charged under section 302/149, P. P. C. they could not be convicted under section 302, P. Y. C. as the offence falling thereunder was distinct from the one with which they were charged. In support of that contention reliance was placed on Surajpal’s case but the same was distinguished on the ground that whereas the case before the Supreme Court of India was not ‘doubtful’ within the meaning of section 236, Cr. P. C. in the case before this Court there was “an element of doubt” which might be “thought to appear, which was sufficient to justify, within the terms of section 236, Criminal P. C., the framing of a charge under section 302, P. P. C. read with section 149, P. P. C. It is true that at the same time, specific charges under section 302, P. P. C. might also have been framed against Muhammad Anwar and Khurshid Ahmad individually, but by section 236 aforesaid, the Court is expressly permitted to frame a charge in respect of any of the several offences which might have been charged. By the application of section 237, Criminal P. C., a conviction can legally be obtained, in a case of this kind, of any offence which appears from the evidence to have been committed, although it was not expressly charged”.
It would thus be seen that this Court as well as the Supreme Court of India have construed the provisions of sections 236 and 237, Cr. P. C. in a manner which leaves no room for doubt. The application of section 237, Cr. P. C., which is dependent on section 236, arises only in a case in which due to single act or series of acts, it is ‘doubtful’ which of several offence the accused may be charged with. It would, therefor, follow that if upon n the facts of a given case the teal Court way in no manner of doubt in that behalf then reliance cannot be made on the provisions of section 237 Cr,P,C.
Bearing this principle in mind, lot us advert to the facts of the present case. The three charges, with which Mr. Bhutto was charged in the High Court have already been noted. He was charged for an offence under section 120-B, P. P. C; section 302 read with sections 109 and 301, P. P, C ; and section 307 read with section 109 P. P. C. However, he was convicted, and here I would refer to only that part of his conviction to which objection has been taken, under section 302 read with section 301 and section 109 and section 111, P. P. C. and sentenced to death for the murder of Nawab Muhammad Ahmad Khan. Now right from the earliest stage of the case, when the F.I. R. of occurrence was lodged at the Ichhra Police Station by Mr. Kasuri in 1974, it was known to the prosecution that Mr. Bhutto had master-minded the plan to assassinate him, but in the execution of it hi father got killed. The evidence given by P. Ws. Masood Mahmood, Saeed Ahmad Khan and M. R. Welch in the High Court was to the same effect, as also that in view of the conspiracy entered into between Mr. Masood Mabmood and Mr. Bhutto, the former availed of the services of “ Mian Abbas, who in turn detailed approver Ghulam Hussain and the other appellants for assassinating. Mr. Kasuri and in that behalf provided them with arms and ammunition. Notwithstanding this position, however, no charge was framed against Mr. Bhutto under section 111, P. P. C. and the case proceeded under section 109, P. P. C. In the judgment delivered by the High Court, however, it was noted that Mr. Bhutto was convicted, amongst others, under section 302/301/109/111, P. P. C.
The question of law, therefore, arises is whether the said finding recorded by the High Court can be sustained by invoking in aid section 237 of the Code, of Criminal Procedure? In this respect the consideration of section 109 and section 111; P. P. C. would seam to be relevant, which respectively read asunder :--
“109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for Its punishment----Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, .be punished with the punishment provided for the offence.
Explanation. --An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
III. Liability of abettor when one act abetted and different act done---- When an act as abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it.
Proviso.-Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment,”
Now a bare look at these two sections would make it clear, and here I am not referring to the illustrations appearing thereunder which make their true scope free from any doubt, that they would be applicable to completely different situations. Section 109, P. P. C. would be applicable to a case in which the act abetted must be shown to be the act committed in consequence of the abetment, as also that there is no express provision available in the Code for the punishment of such abetment. In a case falling under section 111, P. P. C., however, an act done must be different than the act abetted. But even so the abettor would be liable if the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. This being the essential distinction between these two sections, it is obvious that in view of the proved facts and circumstances of the present case a charge under section 111, P. P. C. should have been framed against Mr. Bhutto because (1) h.- had abetted Mr. Masood Mahmood to assassinate Mr. Ahmad Raza Kasuri; and (2) but in the execution of the said conspiracy his father Nawab Muhammad Ahmad Khan was murdered. In other words the act committed in pursuance of the said conspiracy was entirely different than the act abetted by Mr. Bhutto, therefore, on these facts he should have been charged only under section 111, P. P. C. which is a special section, and not section 109, P. P. C. which is not only residuary, but of general application to all cases in which the act committed is the same as the act abetted.
Furthermore, the words of the proviso of section 111, P. P. C, namely “Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment” would seem to underline the burden of the prosecution to establish by evidence that when an act is abetted and a different act is done, the same was the “probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment”. The expressions “probable consequence” and “or In pursuance of the conspiracy” should leave no room for doubt that this is what the Legislature has intended. If I am right in this conclusion, it would follow that, the prosecution or for that matter the High Court both were in no manner of doubt that though Mr. Bhutto had abetted Mr. Masood Mahmood in respect of the assassination of Mr. Ahmad Raza Kasuri yet in the execution of the plan in that behalf unfortunately his father got killed. In these circumstances, the High Court could not have possibly entertained any doubt that the offence committed by Mr. Bhutto squarely fell within the four corners of section 111, P. P. C. and not section 109, P. P. C. In point of fact, the High Court does not seem to have entertained any doubt in that behalf, as there is no indication of it in its judgment. Furthermore, the learned Special Public Prosecutor, even during the arguments in this Court, maintained that the act committed in the present case was not a different act than the one which was abetted by Mr. Bhutto or was the object of conspiracy entered into between him and Mr. Masood Mahmood. I am, therefore, of the humble view, in which respect I am supported by a judgment of this Court, and two judgments of the Supreme Court of India that since the case was not covered by section 236, Cr. P. C., the High Court under section 237, , Cr. P.. C. could not have recorded the conviction of Mr. Bhutto under section 111 P. P. C. Nor would this Court have jurisdiction to uphold the said finding as its jurisdiction in that behalf is co-extensive with the jurisdiction of the High Court.
Begu and others v. Emperor (A I R 1.925 P C 130) also dces not support the learned Special Public Prosecutor. Apart from the fact that the Privy Council in that case observed “When there has been evidence before the Court below and the Court below has come to a conclusion upon that evidence, their Lordships of the Privy Council will not disturb that conclusion; they will only interfere, where there has been a gross miscarriage of justice or a gross abuse of the forms of legal process”, it was noted therein that during the trial the assessors bad given their opinion, on the basis of which the learned trial Judge bad recorded a note, “that there might be some doubt as to whether Hamid one of the accused, was also present and took part in the assault or not”. Now this element of doubt naturally brought the case of some of the accused therein within the four corners of section 236, C’r. P. C. to which Section 237 was, therefore, attracted.
Before concluding this discussion it may be mentioned that P L D 1962 Kar. 756 cited by the learned Special Public Prosecutor has been overruled by this Court in Muhammad Latif v. State (P L D 1966 S G 201), Besides, most of the other judgments referred by him related to cases in which the accused were charged for serious offences but in view of the proved facts against them, they were convicted of minor offences as this course was open to the Courts under section 238, Cr. P. C.
The learned Special Public Prosecutor, however, argued that even if Mr. Bhutto was not charged under section 111, P. P. C. he cannot be said to have been prejudiced, as also that the defect if any would stand cured under sections 535 and 537 of the Code of Criminal Procedure. I am afraid, there is no force in this contention. A similar contention was raised before the Supreme Court of India in A I R 1955 S C 274 and the same was repelled as under:-
“In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302, I. P. C. was in fact framed. Section 232, Cr. P. C. permits an appellate Court or a Court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of sections 535 and 537, Cr. P. C. Assuming, however, for a moment that there was merely an irregularity which was curable, we are satisfied that, in the circumstances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302, I. P. C. By framing a charge under section 302, read with section 149, I. P. C. against the appellant. The Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302, I. P. C. was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case.”
Respectfully, I agree with this conclusion which is fully applicable to the facts of the present case: By framing a charge against Mr. Bhutt under section 302 read with section 301 and section 109, P. P. C., the High Court put him on notice that he was not being charged for an offence under section 111, P. P. C. In these circumstances, how can it even be contended 3 that Mr. Bhutto ought to have taken notice of the fact that perhaps the High Court may in its judgment convict him under section 111, P. P. C. ? especially when neither the High Court nor the prosecution were conscious of that position even inferentially.
The further difficulty in the way of the prosecution is that there is no evidence on record to support a charge under section 111, P. P. C. ; Mr. Bhutto was not even questioned in his examination under section 342, Cr. P. C. about the offence falling under the proviso to the said section ; and no arguments were addressed at the bar of the High Court in that behalf by either side. It should be remembered that an offence under section 109, P. P. C. is entirely different than the one covered by section 111, P. P. C. However, since Mr. Bhutto was not charged in the High Court under section 111, P. P. C. the High Court cannot be said to have committed any irregularity which can be cured under section 535 or 537, Cr. P. C.~ In reaching this conclusion, I am conscious of the fact that under section 537, Cr. P. C., as amended by Law Reforms Ordinance, 1972, even an illegality committed during the trial (including the mode of trial is curable but all the same the effect of the section cannot be stretched to the limits of absurdity and unreasonableness. If this caution is not observed, I am afraid the pragmatic seriousness and caution with which the criminal Courts in the country have been used to deal with trials would be displaced by non-seriousness and inattention with the result that a well tested and tried procedure would be impaired to the great prejudice of the citizen. Furthermore, if section 537, Cr. P. C. is so construed as to be invokable in aid of curing each and every illegality then what utility can be left of the other provisions of the Code in which are enshrined all those principles which are the hallmark of a civilized nation including the basic principle of audi alteram partem.
I am, therefore, of the humble view that in view of the law as it stands Mr. Bhutto, in so far as his conviction under section 111, P. P. C. is concerned, was condemned unheard by the High Court and consequently the illegality committed by the High Court is not curable under sections 535 and 537 of the Code of Criminal Procedure.
Another question of some importance raised by Mr. Yahya Bakhtiar is that in the High Court Mr. Irahad Ahmad Qureshi the learned counsel for appellants Rana Iftikhar, etc. was again allowed to cross-examine the P. Ws. after their cross-examination was concluded by the learned counsel for Mr. Bhytto and Mian Abbas with the result that a lot of damaging material w brought on the record of the case. His grievance is that the said procedure, to which objection was taken at the proper time, was not only illegal but a request made on behalf of Mr. Bhutto and Mian Muhammad Abbas for permission to cross-examine the said P. Ws. again was refused by the High Court to their great prejudice. By going through the record, the contention raised by the learned counsel is factually right. At page 20 (of the Volume of Orders), the High Court has made a note in that behalf which reads : “At the instance of Ghulam Mustafa accused, his counsel Mr. Irshad Ahmad Qureshi, further cross-examined the witness by putting some specific questions. Mr. D. M. Awan objected to the asking of all the questions, which objection was duly noted”. Similarly, at pages 650-651 (of the III Volume of Evidence), the High Court observed : “that Mr. Qurban Sadiq Ikram, wants permission’ to put question to the witness by way of cross-examination because, he says that Mr. Irshad Qureshi has by his cross-examination damaged the case of Mr. Qurban Sadiq’s client. Let the question be taken down to enable us to take a decision on the point”. After taking down the question, which may not be reproduced, the High Court observed “This question could have been very well asked at the time when Mr. Qurban Sadiq Ikram was cross-examining the witness this morning, because as the question shows the allegation is that the Officer of the F. I. A. briefed the witness yesterday. This question is, therefore, disallowed.” Likewise at page 30 (of the Volume of Orders) the High Court noted the objection as well as the prayer of Mr. D. M. Awan, the learned counsel for Mr. Bhutto to the effect that Mr. Irshad Ahmad Qureshi should not have been allowed again to cross-examine P. W. Toor, as in consequence of it the interest of his client had been damaged, and further that he should be permitted again to cross-examine the witness. By an order, dated 2t-11-1977, however, the High Court rejected the said objection taken by Mr. Awan as well as his prayer for the cross-examination of the witness. These objections also were raised by the learned counsel in the Chart “regarding some paragraphs of impuged judgment showing paralysis of judicial faculties on account of Bias”, and in the written reply thereto the learned Special Public Prosecutor has made the following submission;-----
“32. Mr. Irshad Ahmad Qureshi was the counsel for three accused in the case. There being no provision in law regulating the order in which the counsel of an accused in a joint trial is to cross-examine a prosecution witness, the learned trial Court had left it to the defence counsel to decide this issue amongst themselves and it was in accordance with this arrangement that Mr. Irshad Ahmad Qureshi sometimes cross-examined the prosecution witnesses first and sometimes later. When insisted by the other defence counsel that he should cross-examine first, he did so on behalf of some of his clients while reserving the right to cross-examine on behalf of the other later. The exercise of discretion by the Court in the instant case was always based upon sound and cogent reasons and the objections raised in this paragraph are devoid of any substance. It is respectfully submitted that the aforesaid reply is not in accord with the legal position as enunciated above cited cases.
It would thus be seen that as far as the facts are concerned, the learned counsel for the parties are not in dispute with each other. The only question, therefore, is if by adopting the said procedure the High Court can be said to have committed any illegality or else Mr. Bhutto prejudiced. I am of the humble view that the said procedure adopted in the High Court may have been technically unexceptionable, but in essence it-seems to have made inroads into those axiomatic, well tried and precious norms which are the sine qua non of the safe administration of criminal justice. The scheme of the Evidence Act, 1872, is to elicit from the witnesses on either side the maximum possible truth in respect of a liz pending for adjudication before a Court. In that behalf the scheme of the Evidence Act is that each side should first examine his own witnesses, which is called examination-in-chief, and thereafter place them in the hand of the other side for crossexamination. The re-examination of a witness by the side producing him is not an invariable phenomenon, but is permissible in the discretion of the Court if in his cross-examination he has deposed to a fact which would need clarification. Now this scheme of the Code would be equally applicable in a case, and here I would refer to a case of a civil nature, in which some of the defendants are supporting the claim of the plaintiff. In such a case also the proper procedure would be first to examine the witnesses of the plaintiff followed by the witnesses of those defendants who support his case and thereafter the process must be repeated in the case of the other defendants. However, if the said procedure is subverted in the sense that the defendants who support the case of the plaintiff are allowed to be examined and cross-examined after the witnesses of the contesting defendants have already been examined evidently the case of the later defendants is bound to be prejudiced because of the partisan attitude of the defendants who are supporting the claim of the plaintiff. In fact, if reference in this behalf is made to the evidence of the P. Ws. in the present case, who were allowed to be cross-examined by Mr. Irshad Ahmad Qureshi, after the conclusion of their cross-examination by the learned counsel for Mr. Bhutto and Mian Abbas, it would be seen that a lot of damaging material was brought on the record of the case to the great prejudice of the latter. In these circumstances the least that ought to have been done in the High Court was to afford to the learned counsel for Mr. Bhutto and Mian Muhammad Abbas another opportunity to cross-examine the witnesses in the interest of justice.
In support of his contention, Mr. Yahya Bakhtiar relied on Motiram Nerwari v. Lalit Mohan Ghose (A I R 1920 Pat. 94), Haji Bihi v. H. H. Sir Sultan Mahmood (32 I L R 599), Kirmany & Sons v. Agha Ali Akbar (A I R 1928 Mad. 919) and Muniappan v. State of Madras (AIR 1961 S C 175). By going through these judgments, they clearly support the contention o the learned counsel. In this view, it must be said that the permission granted to Mr. Irshad Ahmad Qureshi again to cross-examine the P. Ws. when their cross-examination was already concluded by the other side was illegal, moreso when the damaging material brought on the record of the case by that method hag been used against Mr. Bhutto and Mian Muhammad Abbas to their prejudice.
I would now take up the evidence of second approver namely, Ghulam Hussain P. W. 31. The substance of his evidence which runs in about 90 typed pages, and most of which is irrelevant and must, therefore, be ignored, is that he had studied up to middle class, thereafter joined the Army as Sepoy in 1950 and retired from the Army as Naib-Subedar on 19-11-1973. During his army career, he served as Commando for 14 years, out of which he remained as Commando Instructor for about 10 years.
On 3-12-1973, he joined the F. S. F. as A. S. I. after he was interviewed by the then Director-General, F. S. F., namely, Malik Haq Nawaz Tiwana. After joining the F. S. F. he was posted, on paper, to Battalion No. 5, but on the oral order of Mian Muhammad Abbas he worked with him at the Headquarters. A day or two after hp joined the F. S. F. he was assigned a duty by Mian Muhammad Abbawt Larkana. After having performed the said duty, he was posted back to Battalion No. 5 which was stationed at Rawalpindi. .
In April, 1974 he was summoned by Mian Muhammad Abbas who handed over to him the syllabus of the Commando Course and told him that he was required to run a Commando Course and in that behalf should make the necessary preparations. Accordingly he selected some persons from the 4th and 5th Battalions of the F. S. F. and set up a Camp in the barracks of the 4th Battalion at Islamabad. The Camp was run under the supervision of Mian Muhammad Abbas and he was the Chief Instructor. For the purpose of imparting training to the trainees, the latter were required to bring their own weapons to the Camp but the ammunition for their use was drawn from the Headquarters Armoury. P. W. Fazal Ali was the Incharge of the said Armoury from whom he drew ammunition for the purpose of Commando Camp vide Road Certificate Exh. 24/7.
In the end of May, 1974 he was summoned by Mian Muhammad Abbas to his Office who asked him about the methods which a Commando used for kidnapping someone or committing a murder. Accordingly, he explained to him the said methods, but he insisted that the same should be reduced to writing which he did and passed on the written paper to him. 2/3 weeks later, he again sent for him and asked him if he knew Mr. Ahmad Raza Kasuri, and he answered in the negative. At this, he placed a jeep and a driver at his disposal and told him to find out the whereabouts of Mr. Kasuri and in that connection Head Constable Zaheer was detailed to help him, as he knew Mr. Ahmad Raza Kasuri. Accordingly they took the jeep and went out searching for Mr. Kasuri while he was still running the Commando Camp.
In the beginning of August, 1974 Mian Muhammad Abbas, again sent for him and asked him about the results of his efforts in connection with Mr. Kasuri. He informed him that he had located his address and also identified him. He then told him that he must remove Mr. Ahmad Raza Kasuri from the path of Mr. Bhutto, as Mr. Masood Mahmood had given him the order in that behalf. At this he pleaded with Mian Muhammad Abbas that he was a soldier, had small children, and, therefore, how can he commit such a heinous crime. Mian Abbas, however, told him that he need not worry because he would be fully protected. He further warned him that if he declined to carry out the said assignment he would not only lose his job but also his life. Faced with this situation ha was left with no option but to carry out the said order under compulsion. In order to carry out the said undertaking, Mian Abbas procured for him the necessary weapons from the Central Armoury of which P. W. Fazal Ali was Incharge simply on the basis of a chit signed by him in that behalf. After collecting the weapons in question, he along with Head Constable Allah Bux and Constable Mulazim Hussain started following Mr. Kasuri. However, on 20-8-1974 Mian Muhammad Abbas called him to his Office and complained to him as to why he had not been able to carry out the task given to him, and further that although he was being promoted as Inspector, he must deliver the goods, as Mr. Masood Mabmood was very unhappy because Mr. Bhutto has been abusing him for the delay. He also warned him that if he failed to execute the said order, he would lose his life as another team has been detailed to cover him, and if necessary, to kill him.
On 24-8-74 he established contact with Mr. Ahmad Raza Kasuri on telephone. He told him to meet him at 1 o’clock at the gate of the M.N.A.s’ Hostel, Islamabad. Accordingly, he left Rawalpindi for Islamabad at 12-30 p.m.’ in a jeep along with Head Constable Allah Bux and Foot Constable Mulazim Hussain. Driver Mian khan was at the wheel of the jeep, which was of blue colour and the genuine number plates of which had been removed in accordance with the instructions given to him by Mian Abbas. When he reached the M. N. A.’s Hostel, he found the car of Mr. Kasuri parked at a place at some distance from the National Assembly Building. At that time Mr. Kasuri, while sitting in his car, was talking to someone standing outside on the road. However. he took a decision on the spot not to murder Mr. Kasuri, as also to save his own life. Accordingly, he directed Mulazim Hussain to fire in the air from the rear window of the jeep so that Mr. Kasuri should run away from the scene. Mulazim Hussain, therefore, fired a burst in the air and Mr. Kasuri sped away his car. However, when he returned to the office of Mian Muhammad Abbas, Ch. Nazir Ahmad (Deputy Director) met him outside the office and told him “How I justified myself in calling a Commando when it was day time and I had a jeep, automatic weapons, the distance. was about 30 yards, and still I let the target escape.” He further said that “he had seen that neither Ahmad Raza Kasuri was hit nor did any bullet hit his car.” This convinced him that another party had been detailed to watch big methods and that this party had informed him in advance of what had happened. Meanwhile Mian Abbas called him inside his Office and enquired from him the details of the incident. After having heard his version he reprimanded him saying that he was a strange Commando to have missed in broad daylight the target while armed with an automatic weapon. He, therefore, warned him to complete the mission and not to fire in the air again at Mr. Kasuri.
On returning from the office of Mian Abbas, he replaced the empties with live cartridges from the Commando Camp and returned the weapons, as well as the ammunition, to P. W. Fazal Ali. Thereafter, Mian Abbas ordered him to depute Head Constable Zaheer and Liaqat from the Commando Camp to go to Lahore and search for Mr. Ahmad Raza Kasuri. In compliance with the said order, he detailed these two incumbents who accordingly proceeded to Lahore. In October, 1974 Mian Abbas again sent for him to big office. He told him that the men sent by him to Lahore were enjoying themselves and had done nothing while the Prime Minister was angry and abusing him. He replied that be would leave for Lahore immediately after Eid, but Mian Abbas told him to proceed immediately as Eid was the proper occasion to assassinate Mr. Kasuri because he would be meeting with lot of people. Accordingly, he proceeded to Lahore, stayed there for about 10 days, found out the whereabouts of Mr. Kasuri, returned to Rawalpindi and reported to Mian Abbas for further instructions. On this, Mian Muhammad Abbas directed him to procure ammunition from the Commando Camp and proceed to Lahore with appellant Rana Iftikhar. He further told him that appellant Ghulam Mustafa would provide him a jeep at Lahore and appellant Arsbed Iqbal and Soofi Ghulam Mustafa both would render all assistance. He also told him to change the ammunition from somewhere so that no suspicion could be directed against the F. S. F.
After collecting the ammunition, be and Rana Iftikhar left for Lahore. On arrival at Lahore, he contacted appellant Ghulam Mustafa at the F. S. F. Headquarters, Shah Jamal and told him about the mission and further that he had already changed the ammunition of the F. S. F. with other ammunition as directed by Mian Abbas. Ghulam Mustafa told him that be had known about his arrival through Mian Abbas on telephone who also told him to render him every possible assistance in order to facilitate the completion of the mission assigned to him. Ghulam Mustafa subsequently informed that he had already obtained a step-gun and that another would be procured from the Battalion of P. W. Amir Badshah stationed at Walton.
The second step-gun was accordingly procured later and supplied to him along with two magazines.
At about 7/8 p.m. on 10-11-74, he along with appellants Ghulam Mustafa, Rana Iftikhar and Arshad Iqbal set out towards Model Town in order to locate Mr. Kasuri. At the junction of the road to Model Town and Ferozepur Road they spotted the car of Mr. Kasuri but since he was going in the opposite direction, they could not reverse the jeep in time and they lost his track. Thereafter they returned to the Headquarters and from there, appellant Mustafa rang up the residential number of Mr. Kasuri, in order to find out if he was at home. Some one from the house, however, replied that he had gone to attend a wedding dinner at Shadman. After receiving this information they again set out in jeep towards Shadman. This time Driver Amir was on the wheel of the jeep. However, on reaching a point about 80/90 yards from the roundabout where Shah Jamal ends and Shadman begins they saw a house with illuminations, with Shamianas erected all over and many cars parked outside on the road. The car of Mr. Ahmad Raza Kasuri was also found parked there. After confirming that the car actually belonged to Mr. Kasuri they proceeded towards Ferozepur Road and stopped for a cup of tea in Ichhra before returning to the Headquarters at Shah Jamal. Upon arrival at the Headquarters all of them proceeded to prepare a plan as to the site where Mr. Kasuri should be killed. The consensus reached was that the intersection of Shah Jamal-Shadman Colony would be the proper place. At 10/10-30 p.m. the appellants Sufi Ghulam Mustafa, Rana Iftikhar and Arshad Iqbal, armed themselves with step-guns whereas he was armed with a pistol: Arshad 1qbal and Rana Iftikhar put on their overcoats in order to keep the step-guns hidden. On arrival at the spot, he posted Rana Iftikhar behind a shoulder high hedge facing towards the road from where the car of Mr. Kasuri was expected to come, and Arshad Iqbal about 9/l0 steps behind him at a point from where the car was to pass after negotiating the semi-circular turn from the intersection. However, the instructions given by him to Arshad Iqbal were that he should fire in the air as otherwise someone sitting under the Shamianas or traveling in the car from the opposite direction was likely to be hit, as also that the said firing would caution Rana Iftikbar about the approaching car and he would be ready to fire upon it. Having given these instructions to Iftikhar and Arshad Iqbal, he himself retired to a side lane from where occasionally he came back to the spot to ensure that everything was alright. At mid-night he heard the sound of fire. Thereafter second and third bursts followed in very short intervals. Accordingly he headed for the spot and saw that the car of Mr. Ahmad Raza Kasuri, with no headlights, was speeding away which gave him the impression that be was safe.- . Thereafter, they returned to the Headquarters when Rana Iftikhar and Arshad Iqbal told him about the details of the occurrence in the presence of appellant Ghulam Mustafa. They returned to Ghulam Mustafa the arms and on checking their ammunition, it was discovered that 30 rounds had been fired in the operation. Next morning Ghulam Mustafa rang up the Ichhra Police Station and he was informed that the father of Mr. Ahmad Raza Kasuri had been murdered.
Sufi Ghulam Mustafa then tried to contact Mian Muhammad Abbas on telephone but he was not available. He rang up his house and he was told that Mian Abbas had left for Peshawar. Ghulam Mustafa accordingly contacted Mian Abbas on telephone at Peshawar and told him that the car of Mr. Ahmad Raza Kasuri was fired upon last night in which his father was killed. At this Mian Abbas asked Ghulam Mustafa to direct him (Ghulam Hussain) to get back to Rawalpindi. On receiving the said instructions he conveyed the same to him (Ghulam Hussain) who in turn asked his compatriots to go to their homes for 8 or 10 days and he himself stayed for the night at Shah Jamal. On the next day, i.e. 12-11-74 he travelled to Rawalpindi in the car of Mr. Masood Mahmood with the driver of the car P. W. Manzoor Hussain and the gun-man of Mr. Masood Mahmood. However, before leaving for Rawalpindi he bad continued making enquiries in order to find out the result of the investigation of the case. Ort reaching Rawalpindi he contacted Mian Abbas on telephone at his house as he was told that he was present. Mian Abbas told him to come over to his house. He, therefore, took a jeep from the Control Room and drove to the house of Mian Abbas who was waiting for him. Accordingly, he narrated him the details of the incident. He consoled him that it was the will of God that Mr. Kasuri was saved. In reply he told him that he had joined the Force to provide sustenance to his family, and not to commit murders. He also told him that whatever he had done by his connivance was due to the result of coercion and influence exercised over him and that he would not do any such thing in future. Mian Abbas, however, asked him if he had left anything incriminating at the spot which might disclose the identity of the F. S. F. He replied that some spent ammunition bad been left at the spot and that the same could not be found out due to darkness. He replied that he should not bother about the empties as he would take care of them.. Thereafter he told him to go back to the Commando Camp, complete the job and disband the Camp. He accordingly obeyed the said order. After winding the Camp he returned to P. W. Fazal Ali the live as well as spent ammunition on the basis of a road certificate. However, he was short of 51 empties including the 30 fired at Lahore and 7 at Islamabad and the rest had been lost during practice firing. He hoped that Fazal Ali will not check the said shortage and accept the articles in confidence but he was disappointed because Fazal Ali insisted that the 1 shortage has to be made up. At this he reported the matter to Mian Abbas, who told him to report to him after 3 or 4 days and he hoped that he will be able to make some arrangements. 3 or 4 days thereafter when he went to see Mian Abbas, he handed him a Khaki envelope containing 51 empties of sten-gun which he accordingly took to Fazal Ali and made up the deficiency.
In the last week of October, 1974, when they were leaving for Lahore they did make the requisite entry (Exh. P. W. 31/3) of their departure in the daily diary of Battalion No. 5 but actually made no mention therein of their destination because these were his orders. The said entries were made in his presence by person in charge of the said daily diary, and the same was initialled by Rana Iftikhar. After his return from Lahore on 12-11-74 he did not make any entry of his arrival in the daily diary until 8/10 days thereafter because Mian Abbas had told him so in that behalf. On the third day of his arrival at Rawalpindi, he made an entry in the daily diary (Exh. P. W. 31/4) showing his departure for Peshawar but actually he remained at Rawalpindi because these were the orders of Mian Abbas. However on 29-11-1974 he again recorded the entry (Exh. P. W. 31/5) in the said daily diary showing his arrival back from Peshawar. For all these so-called journeys, however, including his journey to Lahore, he submitted his TA/DA Bill (P. W. 31/6) and he was paid the amount claimed therein, after the same was certified by the Line Officer as well as Mian Muhammad Abbas.
On 13-8-77 he sent application (Exh. P. W. 9/ 1) to the District Magistrate, Lahore, through the Jail Superintendent, Lahore, praying therein that he would like to disclose the true facts as to the murder of Nawab Muhammad Ahmad Khan if he was granted pardon and made an approver. On receipt of the said application he was taken before the District Magistrate, who, after talking to him about the said crime, obtained his signatures on a piece of paper. Thereafter he sent him to a Magistrate who recorded his Approver’s statement (P. W. 10/11-1). Finally, he deposed that the firing made at the car of Mr. Ahmad Raza Kasuri at Islamabad and Lahore both, had been made under his supervision as he was pressurized and coerced. He had no enmity with Ahmad Raza Kasuri. He did not even know him.
Mr. Irshad Ahmad Qureshi, .the learned counsel for appellants Rana Iftikhar, etc. cross-examined the witness who deposed that he had been given a reward of Rs. 500 because he had detected illicit liquor in the cafeteria of the National Assembly; that he was unable to say as to why Mian Abbas got him attached with himself when officially he was posted to Battalion No. 5, that he had no knowledge that he had thick relations with the then Prime Minister; that normally when a step-gun is fired from a jeep the empties must fall in the jeep also, but if in the process of ejectment the empties hit some other object its path can be altered; that the grenade of which the pin was deposited by him in the Central Armoury vide Road Certificate (P. W. 24/9) was used in the bath room of the mosque at Rawalpindi where Maulvi Ghulam Ullah was the Khatib. 213 days before the occurrence at Lahore, they were stopped on the Ferozepur Road by D. I.-G. Sardar Abdul Vakil Khan when they were going in a jeep and he admonished them as the jeep was without the number plates; that in order to confirm their identity Sardar Abdul Vakil Khan spoke on the wireless to Mr. Mallhi at the F. S. F. Headquarters and then allowed them to proceed; that the mission on which the jeep in question was then proceeding was to assassinate film actor Muhammad Ali; that first shot fired on the car of Mr. Abmad Raza Kasuri at Shah Jamal/Shadman Roundabout was fired by appellant Arshad Iqbal and thereafter by Rana Iftikhar and Arshad Iqbal both as the latter then turned round and opened fire on the speeding car; that he knew that Arshad Iqbal was, after the said incident, attacked outside his house at Ichhra, Lahore but in the process his brother Amjad was killed; and that the only undue influence and coercion on him was exercised by Mian Muhammad Abbas to assassinate Mr. Ahmad Raza Kasuri.
Before proceeding with his cross-examination, which is replete with grave omissions and contradictions, as well as the evasive tactics adopted by the witness to answer the questions put to him directly, let us analyse his examination-in-chief to see if it can stand the test of naturalness and probability. It is his own case that he was recruited in the F. S. F. by late Malik Haq Nawaz Tiwana, the then Director-General, and there is nothing in the evidence that he had known Mian Abbas or had ever-come into contract with him. Now this point must be kept in mind in evaluating his evidence to the effect that a day or two after his recruitment in the Force, Mian Abbas not only sent him on a mission to Larkana but kept him with himself, although officially he had been posted to Battalion No. 5. From this claim of the witness only two conclusions are possible ; (i) either he was notoriously known as a bravado or a man of questionable reputation ; and (ii) that he and Mian Abbas were known to each other: This latter possibility, however, would stand excluded because there is no evidence to support it. Therefore one cannot help to hold that the reputation of the witness had travelled to Mian Abbas and naturally he would be-Inclined to use his “services”. This conclusion would seem to be supported by his own evidence because how else he could have assigned him a special mission at Larkana just after a day or two of his joining the F. S. F. T ; or that in the end of May 1974, just about 5 months after he joined the Force, Mian Abbas could have called him to his office and questioned him as to the method of how a Commando would kidnap a person or commit a murder ; or that 2; 3 weeks later again, he should have been summoned by Mian Abbas, and questioned if he knew Mr. Kasuri and he replied in the negative ; or that, nevertheless, Mian Abbas should have provided him with a jeep, a driver and the services of Head Constable Zaheer with instructions to go in search of and identify Mr. Kasuri ; or that 2-1/2 months thereafter he again should have summoned him and .enquired from him if he had succeeded to locate and identify Mr. Kasuri to which he replied in the affirmative ; or that Mian Abbas should have then given him the order that Mr. Kasuri should be assassinated because that was the order given to him by Mr. Masood Mahmood. Now this being the nature of his evidence, can it be said to be natural or probable? There is no evidence that Mian Abbas had ever known him or knew anything about him. How in the name of God then could he have taken him into confidence in respect of the assassination of a prominent citizen and a Member of the National Assembly without any formality whatever as if the task assigned to him was in the nature of an ordinary errand. Furthermore if Mian Abbas was really under pressure from Mr. Masood Mahmood in getting Mr. Kasuri assassinated, then the narration of events given by the witness seems to be unconvincing. His claim in this behalf is that in the end of May 1974, Mian Abbas called him to his office and after he explained to him, in writing, as to the method used in kidnapping and committing murder, he provided him with a jeep, a driver and the services of Head Constable Zaheer with instructions to go out in search of Mr. Kasuri, and identify him and yet for 2-1/2 months thereafter neither he enquired from the witness as to the result of his efforts nor the witness himself gave him any information in that behalf. His claim to the effect that after Mian Abbas assigned him the task of assassinating Mr. Kasuri, he pleaded with him that he was a soldier, and a poor man with children and that he cannot be expected to commit a heinous crime, seems to be a convenient statement made by him in the Court having no truth in it whatever. The reason for which I have been driven to this conclusion is that although he was threatened by Mian Abbas that in case he failed to accomplish the said mission, he would not only lose his job but also his life, and yet when he finally finds Mr. Ahmad Raza Kasuri, within his reach to assassinate him, by some divine interjection he changes his mind and tells Mulazim Hussain to fire in the air so that Mr. Kasuri runs away from the scene of occurrence. The absurdity of his claim in that behalf is further highlighted by the fact that no sooner he reaches the office of Mian Abbas than Ch. Nazir Ahmad Dy. Director, F. S. F., meets him outside the office and taunts him “how I justify myself in calling a Commando when it was day time, and I had a jeep, automatic weapons, the distance was about 30 yards and still I let the target escape” and further that “he had seen that neither Mr. Ahmad Raza Kasuri was hit nor did any bullet hit his car”. There is no evidence on record to show as to how and by what means the news of the said ineffective firing reached the Headquarters of F. S. F. almost immediately as the claim of the witness, in essence, is that from the place of occurrence he drove back in a jeep with his companions straight to the Headquarters. It is true that in his cross-examination, with which I would be dealing separately, he claimed that the said information seemed to have been conveyed to the Headquarters by another party which was detailed by Mian Abbas to cover him as he bad told him that in case he failed to carry out the said mission, the, said party would assassinate him but the same is absurd as he came to n ‘harm despite his evasive tactics. As regards the claim of the witness that do the basis of chits issued to him by Mian Abbas he bad drawn from P, W. Fazal Ali ammunition the least that can be said is that it is untrue. I have already discussed the evidence of P. W. Fazal Ali in some other context and disbelieved it just as I have disbelieved the Road Certificate (Exh. P. W. 24/9) through Which the witness claimed to have deposited with Fazal Ali the ammunition and empties.
The further claim of the witness is that after the said feigned attempt made by him on Mr. Kasuri as a result of which he was taunted and humiliated by Ch. Nazir Ahmad, Dy. Director, F. S. F. as well as Mian Abbas, the latter again ordered him to send Head Constables Zabeer and Liaqat from the Commando Camp to Lahore in search of Mr. Kasuri ; or that accordingly he complied with the said order but in October 1974, Mian Abbas sent for him to his office and told him that Zaheer and Liaqat were enjoying themselves at Lahore and had done nothing in the matter, At this he replied that he would leave for Lahore immediately after Eid but Mian Abbas asked him to proceed to Lahore immediately as Eid was the proper occasion to assassinate Mr. Kasuri as he would be meeting a lot of people. Accordingly, he proceeded to Lahore, stayed there for about 10 days, found out the whereabouts of Mr. Kasuri and then returned to Rawalpindi, and reported to Mian Abbas for further instructions. Now from a casual look at this place of the evidence of the witness, it is clear that either he is totally naive or else he takes the Courts to be so credulous as to believe him. Assuming for the sake of argument that after having been exposed by the first feigned’ attack by him on Mr. Kasuri, Mian Abbas still trusted him or else put the fear into his mind that in case he again failed to carry out the said assignment, the party detailed to cover him would assassinate him, still his whole conduct seems to be contradictions in terms and hence unconvincing. If Mian Abbas was so serious about the accomplishment of the said mission as not to leave the witness even to spend Eid at Rawalpindi, then how is it that. after spending 10 days at Lahore he should have returned to Rawalpindi on the untenable plea to obtain further instructions from Mian Abbas when the order given to him by Mian Abbas was absolutely clear that Eid was the proper occasion to assassinate Mr. Kasuri.
The further claim of the witness to the effect that Mian Abbas told him to change the ammunition from some other source so that no suspicion a directed towards F. S. F. is absurd because (i) how an officer of the standing of Mian Abbas could have expected the witness to be resourceful enough to change the said ammunition ; (ii) the claim itself is untenable as the type of ammunition used both at Islamabad and at Lahore was not in the exclusive use of the F. S. F. and (iii) that according to the witness’s own claim, he had told lies to Sufi Ghulam Mustafa that he had indeed changed the ammunition although it was not a fact. Furthermore, Mian Abbas does not seem to have any trust in the witness because according to his own evidence, Mian Muhammad Abbas had asked him to confirm his arrival at Lahore with him on telephone and the said instructions were carried out by him. Similarly his evidence in respect of the actual occurrence, with which I would be dealing in detail subsequently, is also unconvincing. His claim is that he had posted Arshad Iqbal behind a shoulder-high hedge facing towards the road from where the car of Mr. Kasuri was expected to come and Rana Iftikhar about 9/10 steps behind him at a point from where the car was to pass after negotiating the semicircular turn from the intersection. The factual position, however, is that according to P. W. Abdul Hayee Niazi, he had recovered empties from four different spots separated from each other by quite some distance, and in that behalf he is supported by site plan (Exh. P. W. 34/2) which he prepared himself, as also the site plan (Exh. P. W. 34/5-d) prepared by Inam Ali Shah.
The further claim of the witness to the effect that after the said occurrence, Sufi Ghulam Mustafa first tried to contact Mian Abbas on telephone at Rawalpindi, but he was told that he had gone over to Peshawar, thereafter he contacted him at Peshawar and conveyed him the information that on the night between November 10 and 11, 1974, an attack was made on the car of Mr. Kasuri in which his father was killed. Now apart from the ipse dixit of the witness, there is nothing on the record to support him. In any event his said piece of evidence cannot be accepted because it is unnatural. After all, the news of the death of Nawab Muhammad Ahmad Khan who was not only a prominent and respectable citizen in his own right but also the father of an MNA was splashed by the national Press in every newspaper of the country on the following day and so what was the urgency due to which Sufi Ghulam Mustafa took the trouble of contacting Mi3n Abbas first at Rawalpindi and later at Peshawar only to convey him the said news. It may be mentioned, however, that Mian Abbas has, in his statement under section 342, Cr. P. C. denied the said claim of Sufi Ghulam Mustafa which, in the scheme of things, seems to be convincing. Similarly, I have not been impressed with the evidence of the witness to Abe effect that notwithstanding the instructions of Mian Abbas conveyed to him through Sufi Ghulam Mustafa to return to Rawalpindi immediately, he, nevertheless, stayed behind at Lahore on November 11, 1974 only to acquaint himself with the progress of the investigation of the case. A lot more would be said by me on this part of his evidence subsequently but for the present this much would suffice to say that he did not travel in the car of Mr. Masood Mahmood on November 12, 1974 from Lahore to Rawalpindi as in that behalf his own evidence has belied him. His claim is that when he reached Rawalpindi sometime in the early afternoon of November 12, he contacted Mian Abbas on telephone in his house and thereafter went to see him. On that date, however, as I have already discussed somewhere earlier in a different context, Mian Abbas was actually at Peshawar from where he returned by P. I. A. Right in the evening and reached his house at about 7 p.m. It may be mentioned at this stage, however, that the High Court, with respect, seems to have explained away the said unconvincing evidence of the witness by observing that after reaching Rawalpindi, be might have rested for a few hours and then contacted Mian Abbas. The fact, however, is that this was not the claim of the witness because what he claimed was that soon after his arrival at Rawalpindi be contacted Mian Abbas and then went over to his ?douse, and explained to him the details of the occurrence.
His next claim is that he was short of 51 empties and since P. W. Fazal Ali had, refused to accept them unless the shortage was made up, Mian Abbas helped him from his own resources in that behalf. By making this claim, the witness does not seem to have realized the deeper implications. His earlier claim was that when he was proceeding to Lahore, Mian Abbas had told him to change the ammunition from some other source so that no suspicion is directed at the FSF. From this it should be obvious that Mian Abbas was conscious of the importance of that fact and yet left the same to the witness in whom he had evidently no trust whatever. Furthermore, if he could provide from his own resources a number of empties to Ghulam Hussain to make up the shortage, obviously he could have as well changed this ammunition himself rather leaving it to the uncertain chance to a witness in whom he had no faith.
There is no truth in his evidence that while leaving for Lahore in the last week of October 1974, alongwith Rana Iftikhar, entry (Exh. P. W. 31/3) was made of their departure in the daily diary of Battalion No. 5 by a person in charge of the said diary (in which the mention of destination .was not made) and the same was initialled by Rana Iftikhar. In the first place the person concerned who had made the said entry was not produced in evidence and in the second place, why would Ghulam Hussain not initial the said entry and leave this to his subordinate to do so. However, this circumstance by itself may not be conclusive but w1en taken’ into consideration with other evidence, it can carry conviction. His evidence is that whereas he returned from Lahore on November 12, 1974, no arrival entry was made by him in the daily diary of the Battalion until 8/10 days thereafter because Mian Abbas had told him to do so in that behalf. Except for the bare words of the witness, however, the prosecution has not shown any reason as to why the said strategy was adopted in respect of the said entry. Not only this, but according to entry (Exh. P. W. 31/4) recorded by him in the said diary, he is shown to have left for Peshawar on 22-11-1974 and returned to Rawalpindi on 29-11-1974 vide entry (Exh. P. W. 31/5) recorded in the same diary. When confronted with the said two documentary pieces of evidence all that the witness replied was that whereas he had actually remained throughout the said period at Rawalpindi, Mian Abbas had told him to make the said entry in order that he should not be officially present at Rawalpindi. The least, that can be said about this claim of the witness is that it is patently absurd as the reason for which he made that statement is to support the Road Certificate (P. W. 2419) through which he claimed to have deposited with P. W. Fazai Ali certain ammunition and empties. Furthermore, - the prosecution has failed to show any reason as to why it was necessary to keep the presence of the witness at Rawalpindi as secret in order to justify the committing of the said forgeries in the Government record.
The further claim of the witness that 2/3 days before the actual occurrence at Lahore while travelling in a jeep on Ferozepur Road, during the night P. W. Sardar Abdul Vakil Khan, D. I.-G., Lahore Range, Lahore, intercepted him and admonished him as to why the said jeep was carrying no number plates. Before allowing him to proceed further, Mr. Abdul Vakil Khan contacted Mr. Mallhi at the FSF Headquarters on wireless to confirm his identity. Mr. Abdul Vakil Khan has, no doubt, supported the said claim of the witness, but both of them cannot be believed because according to Mr. Abdul Vakil Khan, he had written a letter to Mr. Mallhi in that behalf (of which mention would be made subsequently) but the prosecution has not cared to produce the said letter, which, in view of the peculiar circumstances of the case, was wholly indispensable. The prosecution ought to have realized that Ghulam Hussain was an approver and consequently the production of the said letter in Court would have gone a long way to dispel the natural doubt which attaches to the evidence of this type. Not only this but even Mr. Mallhi was not produced in evidence to prove that P. W. Abdul Vakil Khan had talked to him on wireless when he found the witness sitting in a jeep during the night with no number plates on it.
The witness was cross-examined extensively by the learned counsel for Mr. Bhutto and Mian Muhammad Abbas. Since the bulk of his cross-examination is irrelevant, evasive in nature and instead of being of any help in the resolution of the main question in the case, has added confusion to it, I would straightaway proceed to pin-point his manifold omissions, contradictions as also the major improvements made by him in his evidence in the High Court. It is in evidence that his confessional statement was recorded on 11-8-1977 and his approver’s statement on 21-8-1977. His statement under section 161, Cr. P. C. was also recorded by Mr. Muhammad Boota, P. W. 39 on 27-7-1977 and duly verified by Abdul Khaliq, P. W. 41 on 20.7-1977, but a copy of the same was not supplied to the defence but that is a different matter and I would ignore the said statement for the present discussion. He admitted in cross-examination that in none of his previous two statements, he bad made any mention of the fact that while officially he was posted to Battalion No. 5 but on the oral order given to him by Mian Abbas he worked with him, and a day or two after he joined the FSF, he was assigned the first special duty at Larkana; that for the purpose of training the trainees were to bring their own weapons but they used to be supplied ammunition drawn from the Headquarter’s Armoury of the FSF; that Mian Abbas gave him a chit with a view to obtain from P. W. Fazal Ali a sten gun, a pistol, two magazines and ammunition but when he took the chit to Fazal Ali and asked him not to make any entry of the said issue in the Register, he refused. At this, he returned to Mian Abbas and told him about the attitude of Fazal Ali. Thereupon Mian Abbas asked him to fetch Fazal Ali to his presence. Accordingly, he went and brought Fazal Ali to the office of Mian Abbas who ordered him to do what he was told failing which he would settle the score with him. On this, Fazal Ali expressed his willingness to comply, and so both of them returned to the Armoury. On reaching the Armoury, Fazal Ali handed him the said articles on the said chit and made no entry of them in the requisite Register.
As to the instructions given to him by Mian Abbas to go in search of and the identification of Mr. Kasuri, the witness agreed not to have mentioned in his said two previous statements that after one or two days, he rang up the number of Mr. Kasuri and asked for him. A person who responded from the other end told him that Mr. Kasuri was not available as he had gone out of Rawalpindi and he did not know as to when he was likely to return. Accordingly, he informed Mian Abbas about his said efforts.
Similarly, in answer to another question, he agreed not to have mentioned in his said two statements that Mian Abbas ordered him to depute Head Constable Zaheer and Liaqat from the Commando Camp to go to Lahore in search of Mr. Kasuri. He complied with the orders. He rejoined his work in the Commando Camp. He similarly agreed not to have mentioned therein that a day before Eid in October 1974, Mian Abbas sent for him and told him that his men were enjoying themselves at Lahore and have done nothing in respect of the assignment. He further told him that since no progress had been shown in that behalf, the then Prime Minister was abusing him. He replied that he would leave for Lahore immediately after Eid but Mian Abbas directed him to leave immediately and on reaching Lahore to confirm his arrival with him on telephone. He further told him that Eid was the best occasion to assassinate Mr. Kasuri as he would be meeting his friends and relations. Accordingly, he entered his departure in the daily diary of Battalion No. 4 and left for Lahore. On reaching Lahore he phoned up Mian Abbas, who, after sometime, re-contacted him on telephone to confirm that he had actually spoken :o him from Lahore. He stayed at Lahore for about 10 days, found out the whereabouts of Mr. Kasuri and then returned to Rawalpindi where he noted his arrival in the Roznamcha of Battalion No. 4. Furthermore, he informed Mian Abbas that he bad located Mr. Kasuri at Lahore who is being watched by his men, and. asked him for further orders.
Similarly, in answer to another question, he agreed not to have said in his previous statements that on 10-I 1-1974 between 7/8 p.m. he suggested to appellant Ghulam Mustafa to go in search of Mr. Kasuri so that they would be able to show some result. Accordingly, Ghulam Mustafa, Rana Iftikhar, Arshad Iqbal, and he himself left in a jeep towards Model Town. On reaching the intersection of Ferozepur Road and the road leading to Model Town they saw the car of Mr. Kasuri proceeding towards Ferozepur Road while they were turning into the road leading to Model Town. Therefore, they could not reverse the jeep in time to follow him and consequently lost him. Thereafter they proceeded towards Ferozepur Road and “if my memory does not fail me” stopped for a cup of tea in Ichhra and returned to office at Shah Jamal. After leaving the jeep there, all four of them including the driver, went upstairs to their room where they lived, and held a conference. Since they knew that the car of Mr. Ahmad Raia Kasuri was there in front of the house in which wedding festivities were going on, they proceeded to make a plan for selecting the site from where they could fire at him and kill him. Accordingly they selected Shah Jamal/Shadman Colony Roundabout to be the most suitable site as from there the said house was visible.
Similarly, in answer to another question he agreed not to have said in his previous two statements that before going to the said site selected by them, Arshad lqbal and Rana Iftikhar had worn overcoats to keep the sten-guns hidden. Similarly, in answer to another question he agreed not to have said in his previous two statements that Rana Iftikhar was ordered by him to open fire at the first approaching car after Arshad Iqbal had fired in the air. He had directed Arshad Iqbal to fire in the air for more than one reason. He was facing the ‘shamiana’ and if he had fired in the air, people under the `shamiana’ might be hurt, secondly there was a danger of people sitting in the cars or those working on roads being injured, thirdly Iftikhar could not see the car arriving from the side where the wedding was taking place and the fire in the air was to be a caution for him. However what he had actually stated in his approver’s statement was “I told Arshad to fire one or two bursts in the air after identifying the car so that he may run away.” Similarly in iris confessional statement what he has said was “I ordered them that Arshad Iqbal would fire in the air after identifying the car, and from other side Rana Iftikhar would fire (so that there is commotion and our honour is also saved by this plausible excuse).
Similarly, in answer to another question he agreed not to have said in his aforesaid two statements that he came to the inter-section on a number of times to keep Arshad Iqbal and Iftikhar on guard and also to find out whether the people had started leaving the place where the wedding was taking place. He similarly agreed not to have mentioned therein that when they returned to the F. S. F. Headquarters at Shah Jamal, they found the main gate closed, therefore, he asked the others to stay where they were so that they may not be seen by the Sentry on duty, who must have heard the report of fire. When he reached near the Gate he found the Sentry was wrapped up in a blank it and resting against the wall. He got the impression that he was asleep. The gate was on the right side of the building whereas on the left of it were some trees. Therefore, all of them went over the wall, one by one, from the left side, taking the shelter of the trees.
He similarly agreed not to have mentioned in his aforesaid two statements, the fact that on returning to the Headquarters at Shah Jamal they checked the ammunition and found that 30 rounds had been fired in the operation.
He also agreed not to have mentioned therein the fact that after Sufi Ghulam Mustafa had spoken to’ Mian Abbas on telephone and before he left for Rawalpindi, he went on making enquiries about the progress of the investigation in the murder case of Nawab Muhammad Ahmad Khan. He similarly agreed not to have mentioned therein that when he reached Rawalpindi and met Mian Abbas the latter asked him if he had left any incriminating thing at the spot which might disclose the involvement of the F. S. F., he replied that the only thing left there was the empties which could not be collected as it was dark and the area around was grassy.
He also agreed not to have mentioned in his aforesaid two statements that he wound up the Camp and returned to Fazal Ali, on the basis of a Road Certificate the remaining ammunition as well as the empties. Actually he was short of 51 empties including 30 fired at Lahore, 7 at Islamabad and the rest during the practice firing by the trainees. However, he hoped that Fazal Ali would accept the articles from him in mutual confidence and without checking and thus the said shortage would go unnoticed. This hope of his, however, did not materialize because Fazal Ali carried out a physical check and found out the shortage of 51 empties. This shortage was in respect of stenguns. He, therefore, reported the matter to Mian Abbas who told him to come back to see him after 3/4 days in which period he would be able to make some arrangement. After 3/4 days he went back to Mian Abbas who handed over to him a Khaki envelope containing 51 empties of stengun which he carried to Fazal Ali vide Road Certificate (Exh. P. W. 24/9) and thus made up the said deficiency.
He also agreed that in none of his said statements he had mentioned that on the third day after his arrival from Lahore to Rawalpindi he had made an entry in the daily diary of his Battalion showing therein his departure for Peshawar as he had been directed in that behalf by Mian Abbas so that his presence at Rawalpindi was not disclosed. The said entry was . made by him on 22-11-1974 and is Exh. P. W. 31/4. However he had not gone to Peshawar and continued to perform his duties at the Commando Camp.
Finally, he also agreed not to have mentioned in his aforesaid two statements that for the days he was on duty at Lahore he claimed TA/DA for Karachi under the orders given to him by Mian Abbas.
Now look at each of the said omissions from his previous statements, and that too confessional in nature, it would be seen that they are so monumental and significant which the witness could not have forgotten to mention therein if there was any truth in them. Enough has already been said as to when an omission would amount to a contradiction within the meaning of section 145 of the Evidence Act. I am, therefore, of the humble view that each one of the said omissions from the previous statements would be tantamount to contradiction with the result that except for the bulk of the evidence of the witness, there is no substance left in it which can carry any conviction whatever. In some context herein before, T. A. Bill (Exh. P. W. 31/6); the entry made by the witness in the daily diary of his Battalion (Exh. P. W. 31/4) showing therein his departure from Rawalpindi to Peshawar, and entry (Exh. P. W. 31/5) showing therein his return from Peshawar to Rawalpindi have been discussed by me in some detail, and I have held all of them as genuine. The learned Special Public Prosecutor, however, relied on Road Certificate (Exh. P. W. 24/9) to show that on 25-11-1974 the witness was present at Rawalpindi, as through the said certificate he had deposited with P. W. Fazal Ali ammunition and empties (Exh. P. W. 31/4 and Exh. P. W. 31/5) recorded in the daily diary of the Battalion were forged. With this contention also I have dealt in some detail previously and disagreed with it. I have held that in the face of the said authentic documentary evidence coming from the record of the Government it would be dangerous to rely upon the ipse dixit of the witness that they were forged as Mian Abbas had asked him to do so in order to keep his presence at Rawalpindi as secret. In fact, no reason, much less a plausible one, has been shown by the learned counsel as to why and for what purpose was this strategy adopted? What was the reason for which the presence of the witness at Rawalpindi was required to be kept secret? Furthermore, I have also dealt with his T. A. Bill (P. W. 31/6) in some other context and held the same to be genuine. The surprising part, however is that the learned Special Public Prosecutor also treats the same as partly genuine and partly forged He argued that in respect of the travel of the witness to Lahore and his stay there between 16-10-1974 to 25-10-1974 the T. A. Bill is authentic whereas in respect of his travel to Karachi and Peshawar for the period from 31-10-1974 to 21-11-1974 and 22-11-1974 to 29-11-1974 respectively is forged. With respect to the learned counsel, however the contention raised by him, not only seems to be rather odd, but unconvincing. It is not the case of the prosecution that on the T. A. Bill in question, no money was drawn by the witness for all the journey shown therein including the one undertaken by him to Karachi, nor indeed is there any evidence on record to show if any enquiry was conducted in the matter, much less action taken against those who were responsible for preparing, authenticating and allowing the encashment of the said bills in favour of the witness. From this it should follow that the T. A. Bill had not only passed through the departmental channel as authentic but the same was treated as such by the paying authority. For 3 long years no objection seems to have been taken as to the genuineness of the said bill by anyone, and consequently, it would be perilous to hold the same as forged, simply because the witness says so, and that too who is self-confessional criminal.
The further reason for which the said T. A. Bill seems to me to be genuine is because of the witness’s own evidence in respect of which, however, I have disbelieved him. His evidence is that when he returned to Rawalpindi on 12-11-1974 he did riot record in the daily diary of his Battalion any entry to that effect for 8/ 10 days as this is what Mian Abbas had told him, but this claim of the witness is patently absurd. Having accomplished his mission at Lahore, or more appropriately miscarried it, what was the earthly reason to keep his presence at Rawalpindi as secret? On the contrary, care should have been taken by him to keep his presence at Lahore secret but there his conduct was different because instead of making himself scarce from Lahore, he continued to stay there on the plea of finding out the progress of the investigation of the case and then took a lift in the car of Mr. Masood Mahmood and returned to Rawalpindi. It is, therefore, obvious, to me that since he was at Karachi between 31-10-1974 to 21-11-1974, he had no option but to invent all the said fables to the effect that although he had returned to Rawalpindi on 12-I1-1974, Mian Abbas told him not to make an entry in the daily diary of the Battalion in that behalf until 8/10 days thereafter. It should be clear, therefore, that on his own showing, the witness allowed himself to be caught, so to say, in a vice, not realizing that he has exposed himself. Taking him on his word, therefore, it is obvious that the said entry was made by him in the daily diary on or about 21-11-1974. Now if this be so then his evidence seems to have under-written the authenticity of his T. A. Bill because his return to Rawalpindi from Karachi is shown therein on 21-11-1974 which date coincides with the date on which he recorded the said entry.
Unfortunately for him, the Road Certificate (Exh. P. W. 24/9) has already been held by me as forged, and the Register of the Armoury doubtful. In support of that conclusion I have given ,my reasons and, therefore, the same process should not be repeated. This much may be said, however, that the two entries (Exh. P. W. 31/4 and Exh. P. W. 31/5) recorded by him in the daily diary of his Battalion are genuine, but to support the case of the prosecution be seems to have forged the Road Certificate (Exh. P. W. 24/9) to show his presence at Rawalpindi on 25-11-1974, as this is the date on which he deposited with P. W. Fazal Ali the ammunition and empties.
Furthermore, it is in the evidence of Abdul Khaliq (P. W. 41) that during the investigation of the case he had taken into possession certain T. A. Bills but strangely the said controversial T. A. Bill (Exh. P. W. 36/1) was not taken into possession by him. Now this conduct of Abdul Khaliq would show that no objection as to the authenticity of the bill in question was taken before him by anyone, including Ghulam Hussain, whose 161, Cr. P. C. statement was recorded by Muhammad Boota (P. W. 39) and verified by Abdul Khaliq himself on - 28-7-1977. Not only this but the said T. A. Bill was not even mentioned in the challan nor attached therewith. In fact, it was summoned in evidence by the defence and exhibited on the record of the case. As already said, no mention of the aforesaid T. A. Bill was made by Ghulam Hussain in his said two previous statements. From this, it should, therefore, follow that if the T. A. Bill in question was really forged, Ghulam Hussain could not have possibly forgotten to mention the same in his previous statements or in his 161, Cr. P. C. statement, a copy of which was, however, not supplied to the defence. It would be interesting to note that even the Road Certificate (P. W. 24/9) of which also no mention was made by him in his previous statements, was brought on the record of the case through P. W. Fazal Ali. Furthermore, it is in the evidence of Abdul Khaliq (P. W. 41) that during the investigation of the case, he did not take into possession the said and another Road Certificate (Exh. P. .W. 24/7) which again would go to show that the said Certificate was evidently brought into existence at a subsequent stage, as otherwise how could Ghulam Hussain and Fazal Ali both have forgotten to make a mention of it or to produce it before ;he investigating officer. It is also in evidence that the said Road Certificate was neither mentioned nor attached with the interim or final challan of the case, which again should support the said conclusion. The learned Special Public Prosecutor also relied on entry (Exh. P. W. 24/10) in the Stock Register of the Central Armoury in support of his plea that the T. A. Bill (Exh. P. W. 36/1) and the two entries in the daily diary of the Battalion of Ghulam Hussain (Exh. P. W. 31/4 and Exh. P. W. 31/5) are forged. Apart from the fact that no reliance can be made on the said entry, as by my finding I have already held the Register of the Armoury as doubtful. Notice, however, may be taken of the evidence of P. W. Fazal Ali in that behalf which is revealing. When the said entry was put to him in the cross-examination and he was asked as to who had made it, he gave three versions (i) that he had made it himself; (ii) that it was made by Bashir; and (iii) that it was made by Ilyas. However, by the examination of the entry, in question, it would be seen that it was made by one Azad, who was not produced in evidence. It is true that the entry, in question, was initialled by way of counter-signatures by P. W. Fazal Ali, but in view of the three conflicting statements by him, Azad should have been produced but the prosecution seems to have contented itself with the evidence of Fazal Ali in that behalf. Furthermore, a similar entry (Exh. P. W. 24/8) in which the deposit of substantial amount of ammunition is shown to have been made at the Central Armoury through various Road Certificates, has been made in the hand of P. W. Fazal Ali and counter-signed by an Officer, Assistant Director (Administration). No explanation has been given as to why the same practice was not followed in the case of Road Certificate (Exh. P. W. 24/9) nor indeed of the said Stock Register. This, in my view, would seem to furnish another reason which would go to support the conclusion that the Road Certificate (Exh. P. W. 24/91 was subsequently manufactured to suit the case of the prosecution.
The learned Special Public Prosecutor however, relied on the evidence of Manzoor Hussain (P. W. 21) and Muhammad Amir (P. W. 19) in support of his plea that P. W. Ghulam Hussain was indeed present at Lahore when Nawab Muhammad Ahmad Khan was murdered. He argued that on the evening of 10-11-1974 Muhammad Amir has driven Ghulam Hussain in his jeep whereas on the following morning Manzoor Hussain (the driver of the car of Mr. Masood Mahmood) gave him a lift in the car from Lahore to Rawalpindi. Enough has already been said that by his own evidence Ghulam Hussain has rendered the claim of both these witnesses doubtful. It is in his evidence that on reaching Rawalpindi at about 2 p.m. on 12-11-1974, he contacted Mian Abbas at his house on telephone ; that Mian Abbas told him to come and see him and that he accordingly went to his house and narrated to him the detail of the occurrence. Unfortunately for him, however, Mian Abbas, on that date was at Peshawar from where he returned by a P. I. A. flight in the evening reaching his house at about 7 p.m.
Furthermore, it is the evidence of Ghulam Hussain that he had left for Lahore on 31-10-1974 ; that actually he was living at the F. S. F. Headquarters at Shah Jamal, but, on paper, he was shown to be residing in a hotel. In his approver’s statement, however, what he has said was that it was in November, 1974 that Mian Abbas called him and directed him to proceed to Lahore for the execution of the mission already assigned to him in respect of Mr. Kasuri. Now this contradiction by itself may not be conclusive, but when read in the context of otter circumstantial evidence, seems to underline the prevaricative tactics adopted by the witness Keeping ail this in the background, let us proceed to examine the evidence of P. W. Amir and Manzoor Hussain.
It is true that Amir (P. W. 19) claims to have .been the driver of the jeep in which he had driven Ghulam Hussain and his companions on the evening of 10-11-1974 towards Model Town, Lahore, in search of Mr. Kasuri. The learned counsel for Mr. Bhutto objected to his evidence on the ground that the log book of the jeep (P. W. 19/1-T) does not support the witness: He pointed out that by examination of the relevant entries therein, it could be seen that on 10-11-1974 the jeep was detailed for the duty of one Iqbal (not the accused) although driven by the witness.
He further maintained that according to the evidence of the witness, all the movements of the jeep, in question, were shown in the Roznamcha and a Register maintained at the F. S. F. Headquarters, Shah Jamal, but the same were not produced in evidence. Relying on section 35 of the Evidence Act, 1872, he, therefore, argued that all the entries made in the log book of the jeep must be held to have been proved without the need of any formal proof of the relevant entries. It may be mentioned that in respect of the same submission of the learned counsel, the finding recorded by the High Court is that since Driver ‘Amir was an illiterate person, and the entries in the log book of the jeep were made not by him but many other persons, the entries relied upon by the defence have to be formally proved However, since no formal proof was tendered in that behalf by the defence, the High Court did not rely on the said entry. Be that as it may, and without giving any finding in respect of the contention of the learned counsel for Mr. Bhutto, it does seem to me that prima facie, his contention cannot be said to be without force, but I would stop at this observation, as the evidence of Manzoor Hussain (P. W. 21) would seem to provide a satisfactory answer to the said question.
Now it is not disputed that Manzoor Hussain was employed as a Driver with Mr. Masood Mahmood ; that on 11-11-1974 he was on duty with Mr. Masood Mahmood at Multan, and that he bad driven back from Multan to Rawalpindi via Lahore. It is his evidence that on 12-11-1974, he went to the F. S. F. Headquarters at Shah Jamal to fill in petrol in the tank of his car. On the arrival at the Headquarters, he met P. W. Ghulam Hussain who requested him for a lift to Rawalpindi to which he agreed and, accordingly drove him back in the car to Rawalpindi. Mr. Yahya Bakhtiar, the learned counsel for Mr. Bhutto has taken serious objection to the evidence of the witness on the grounds that (t) he was brought in this case only to support the prosecution because he was dismissed from the F. S. F. sometime in 1975 and re-employed only on 17-11-1977 when the F. S. F. was already disbanded ; and that (d) from his own evidence it is clear that the witness had been invariably purchasing petrol on cash, and, therefore, there was no reason for him to have gone to the F. S. F. Headquarters at Shah Jamal for obtaining petrol.
There seems to be force in the contention of the learned counsel. The witness has admitted in his evidence that after his dismissal from the F. S. F. he was employed by the Fauji Foundation, from where he resigned his job on 12-11-1977. On 9-9-1977, however, his 161, Cr. P. C. statement was recorded in this case by the Investigation Officer and on 17-11-1977 he was re-instated in the F. S. F. Now these admissions made by the witness seem to be intriguing. In the first place, I have not been able to see any reason in his resigning the job from the Fauji Foundation and taking up a job with the F. S. F. when the Force itself was already disbanded. Furthermore, he was not re-instated until his 161, Cr. P. C. statement was recorded on 9-9-1977 which again makes his re-instatement a little doubtful. To lave a job with a permanent establishment which the Fauji Foundation evidently was for a job in a Force which was already disbanded, is really surprising, because normally no sane person can be expected to take any such decision. Without holding anything against him, however, at least this much ought to be said that his said conduct does seem to cast a serious doubt on his evidence. Furthermore the car of Mr. Masood Mahmood was meant to consume aviation gasoline. It is the evidence of the witness himself that he used to purchase gasoline on cash and presenting the receipts to the concerned officer. Seen in this background, his claim to the effect that he had gone to the F. S. F. Headquarters as Shah Jamal to fill aviation gasoline in the car seems to be unconvincing. Furthermore, he did not fill in any of the gasoline from there because some unidentified person told him that the petrol pump with which the F. S. F. bad a contract for supplies, had no gasoline with it. However, his claim is that during his said errand to the F. S. F. Headquarters which lasted for about 5/10 minutes he met P. W. Ghulam Hussain who requested him for a lift in his car to Rawalpindi, for the proof of which someone from the F. S. F. Headquarters at Shah Jamal should have been produced to show that (i) the F. S. F. indeed had a contract with the said Petrol Pump for supplies ; and (it) on 12-11-1974 the said Pump had no stocks of aviation gasoline. The Ipse dixit of the witness alone, keeping in view the background ;n which he was re-employed as a Driver in the F. S. F , cannot be accepted to support the claim of Ghulam Hussain that ` he was present at Lahore on November 10, 11 and 12, 1974.
Mr. Yahya Bakhtiar, the learned counsel for Mr. Bhutto, however, argued that in the Roznamcha of Battalion No. 3, Walton, Lahore, the presence of Ghulam Hussain at Lahore on 25-10-1974 (against entry No. 2) was recorded on 7-11-1974 by one Muhammad Yusuf who was cited in the calendar of witnesses but later not produced. This Roznamcha was summoned by Mian Abbas but it was not produced. .
However the High Court in para. 413 of the judgment, made use of an entry from the same Roznamcha to the effect that Ghulam Hussain had received a pistol from the said Battalion. He, therefore, argued that this approach of the High Court was illegal just as it was illegal in ‘the case of a similar entry recorded on 25-10-1974 in the said Roznamcha, showing therein that Ghulam Hussain had collected from the Armoury a step-gun, two magazines and 60 rounds of ammunition. ‘Para. No. 413 of the High Court judgment in this behalf reads as under;
“It appears that Mian Muhammad Abbas too is not serious about this objection since in his second written statement filed after the close of the defence evidence, he referred to the Roznamcha of Muhammad Yousaf, Head Constable in the Federal Security Force, brought by Abdul Khaliq D. W. 3 and the copies of two entries dated 25-10-1974 and 7-11-1974 made in it in order to show that P. W. 31 had obtained weapons directly from Muhammad Yousaf, Head Constable off Federal Security Force, Battalion No. 3 posted at Lahore inter alia on the 7th of November, 1974. The entries have not been proved on record, but it is clear from this written statement that on tire one hand the plea of Mian Muhammad Abbas is that Ghulam Hussain was not m Lahore from the 31st October, 1974 to the 12th November, 1974 and on the other hand, he pleads that he had obtained weapons at Lahore from Muhammad Yousaf, Head Constable on the 7th of November, 1974. There is no doubt left in my mind that Ghulam Hussain was not at Karachi during this period but was at Lahore.”
It would thus be seen that Mian Muhammad Abbas in the second written-statement filed by him after the close of the defence evidence, brought on the record of the case, the said entries. In the first place be ought not to have been allowed to do so because the said entries (which were not proved at all) were bound to react against the interest of the other accused ; and in the second place, the High Court, with respect, could not have taken them into consideration in recording the conclusion. “There is no doubt left in my mind that Ghulam Hussain was not at Karachi during this period but was at Lahore.”
The High Court, and I say with profound respect, should have taken note of the evidence of P. W. Abdul Khaliq (see page 698 of Volume III of Evidence) in which he has made the admission that “Roznamcha of Battalion No. 3 was seen by me during the investigation of this case. It is correct that Inspector Muhammad Boota had put up the said Roznamcha along with its Memos before me. The Roznamcha and the Register are not readily available with him at this time. It might be with either the Investigating Officer, or returned to the Department since being not relevant to this case” and insisted either on the production of the said Roznamcha or else refused permission to Mian Abbas to bring on the record, the said two entries from it, which clearly influenced its decision.
The record would show that on 15-11-1977 an application was moved in the High Court (see page 73 of the Volume of Applications) on behalf of Mr. Bhutto praying therein, amongst other things, that the record of the T. A. Bills of appellant Rana Iftikhar pertaining to the period from October to December, 1974 may be directed to be produced for use by the defence. This application was granted by the Court but Mr. M. A. Rahman the learned counsel for the State made a statement at the bar of the High Court that the same could not be found in the F. S. F. Offices. Now I have no doubt that Mr. Rahman had correctly made the statement on the instructions of his clients but it is intriguing as to why the said record was not available with the F. S.F., moreso when it concerned financial transactions which in the nature of things is generally given more attention than the record of routine nature.
Furthermore, at page 698 of his evidence Abdul Khaliq admitted that “I think that the Members of the Investigating Team had taken into their possession certain T. A. Bills which were considered relevant to the case”. Now, if the record of some T. A. Bills, which were considered relevant by the Investigating Team, were taken into its possession, then two things would follow from it ; that (i) the members of the Investigating Team were conscious of the relevancy of the T. A. Bills, and, consequently, how could they have ignored T. A. Bills of Rana Iftikhar as the same would be the authentic evidence to show his presence at Lahore during the period when attack was made on the car of Mr. Kasuri ; and (ii) ,if the said bill was lost or reported missing, then what steps were taken or enquiries made in that behalf by them, I am, therefore, of the humble view that the record of the T. A. Bill of Rana Iftikhar seems to have been deliberately withheld. The reason furnished for the non-production of the record of T. A. Bills of Rana Iftikhar was not convincing and consequently it ought to react against the case of the prosecution.
Now coming to the main occurrence, again the evidence’ of Ghulam Hussain seems to be unconvincing. In his evidence in the High Court, the stand taken by him was that on reaching the Roundabout of Shah Jamal Shadman Colony, he posted Arshad Iqbal and Rana Iftikhar at the specified spots, with instructions that the mission to assassinate Mr Kasuri has to be executed. In his confessional as well as approver’s statements, however, what he bad said was that he had told Arshad Iqbal to fire in the air so, that Mr. Kasuri is able to make a get away and their honour also saved. Now, apart from this basic and fundamental contradiction between his two versions, appellants Ghulam Mustafa and Rana Iftikhar both, in their confessional statements, said that at the said roundabout Ghulam Hussain had fired from a pistol, but the latter in his own evidence prevaricated on the same point and when the learned counsel relentlessly pursued him in that behalf, first, he replied he did not remember and finally denied to have fired at all.
Mr. Yahya Bakhtiar, the learned counsel for appellant Mr. Bhutto, however, argued that the pistol firing by P. W. Ghulam Hussain was such an important element in the chain of events leading to the execution of the plan of assassinating Mr. Kasuri as to have been present to his mind when h e made his two previous statements. He argued that since Arshad Iqbal and Rana Iftikhar both had in their previous statements asserted that Ghulam Hussain had indeed fired from his pistol, his denial of it in the High Court would be tantamount to contradiction and the consequent benefit of it should have been given to the accused.’ His grievance is that the said omission on the part of the witness was explained away by the High Court in favour of the prosecution.
In order to see the force of the contention of the learned counsel, reference may be made to para. 572 of the judgment of the High Court, where the said question has been treated thus;
“The learned counsel argued that there was conflict between the statement of Ghulam Hussain and the confessions of all the three confessing accused. He pointed out that Ghulam Hussain did not say in his examination-in-chief that he fired his pistol, while Iftikhar and Arshad Iqbal said in their confessional statements that the pistol was fired by him. The argument clearly ignores the statement of Ghulam Hussain in cross-examination that he did not remember whether he fired the pistol. This statement does not exclude the possibility of his having fired it.”
With profound respect to the High Court, however, no benefit ought to have been given to the witnesses in that behalf on the ground that “the argument clearly ignored the statement of Ghulam Hussain in cross-examination that he did not remember whether he fired the pistol. This statement does not exclude the possibility of his baying fired it.”
Now if there was no other evidence on record, exception could not be taken to this finding, but with respect. the High Court did not take into consideration the confessional statements of Rana Iftikhar and Arshad Iqbal in which both have positively asserted that Ghulam Hussain had indeed fired from his pistol. Furthermore, if one of the said two accused had made a similar statement, perhaps the finding of the High Court could yet be supported, but the two of them cannot be wrong as against the bare word of Ghulam Hussain, more so, when he happens to be a self-confessed criminal.
Furthermore, in none of his previous statements was any mention made by him that one Liaqat also was present with him right in the lane adjoining the Shah Jamal-Shadman Roundabout and he continued discussing with him the plans of the operation, as also with Ghulam Mustafa. Not only this nut none of the other appellants have supported him in that behalf -as they have not even mentioned the name of Liaqat or his presence anywhere around the place of occurrence. Similarly, he had made no mention of the fact in his previous statements that before proceeding to the said roundabout Arshad Iqbal and Rana Iftikhar had worn overcoats to cover their respective weapons, yet in his evidence in Court he mentioned that fact respecting which, however, Arshad Iqbal and Rana Iftikhar have not said a word in their own statements.
Likewise, neither Rana Iftikhar, nor Arshad Iqbal has said a word in their statements about the fact that on the evening of 10-11-1974 they along with Ghulam Hussain went out from the F. S. F. Headquarters at Shah Jamal in a jeep towards Model. Town in search of Mr. Kasuri, and yet in his evidence in Court, Ghulam Hussain deposed to that monumental fact, which if true, ought surely to have been present to his mind while making his previous statements.
Similarly, in his two previous statements, Ghulam Hussain did not mention that Zaheer and Liaqat were also detailed with him as members of the team to assassinate Mr. Kasuri yet none of them was examined in Court, nor challaned in the case as accused person. The other important fact about which Ghulam Hussain and Sufi Ghulam Mustafa are in disagreement With each other, is the fact as to who had telephoned the house of Mr. Kasuri in the evening of 10-11-1974 to find out his whereabouts. Ghulam Hussian says that Sufi Ghulam Mustafa had telephoned, whereas the latter says that it was Ghulam Hussain who had telephoned the residence of Mr. Kasuri.
As to the overall nature of the evidence given by him in the High Court, the same has been surveyed by me in sufficient detail to show that it was unnatural, improbable and wholly untrue. These few contradictions, however, seem to have received no treatment in the said discussion, and, therefore, it was necessary to mention them at this stage.
Now even the two site plans (Exh. P. W. 34/2 and Exh. P. W. 34/5 d) respectively prepared by Abdul Hayee Niazi and one Inam Ali Shah (not produced) not only do not support him but literally desimate his evidence. Abdul Hayee Niazt has admitted in his evidence that the site plan Exh. P. W. 34/5d) was prepared by Inam Ali Shah on his instructions, the writing appearing thereon in red was in his own hand, as also that it was signed by him on 11-11-1974. He has further admitted that the said site plan was prepared to scale Inam Ali Shah, whereas the one prepared by him (Exh. P. W. 34/2) was not prepared to the scales.
Now Inam Ali Shah was not produced in evidence, as Mr. M. A. Rahman, the learned A. O. R. for the State seems to have taken objection in the High Court that the site plan prepared by him had been incorrectly prepared. The factual position, however, is that the said plan was not disclosed in the Challan and was produced in evidence at the behest of appellants Bhutto and Mian Abbas.
It is in the evidence of Abdul Hayee Niazi, however, that Inam Ali Shah had prepared the site plan not only on his instructions but all the writing appearing thereon in red was made by him in his hand and the plan was signed by him. In this view, Inam Ali, Shah ought to have been examined during the trial as in some essential respects his plan was in conflict with the one prepared by Abdul Hayee Niazi. This step, in my view, would have been not only in consonance with the principles of safe administration of criminal justice, but helped the Court in the resolution of the said conflict.
Furthermore, the manner in which Abdul Hayee Niazi deposed in that behalf ought to have made the taking of the said step indispensable. Having marked the relevant entries in the site plan (Exh. P. W. 34/5d) in red ink, and signed the same, it would follow that he was fully satisfied with its accuracy. More so, when. he himself was familiar with the site, visited the same on more than one occasion, prepared his own rough plan (Exh. P. W. 34/2), as also that the site was kept guarded by him right from the earliest moments by posting !here personnel from his Police Station. It would be of interest to note that at page 639 of the Volume of his evidence he admitted to have Prepared the spot inspection note on 11-11-1974 but the same also was riot allowed to be brought on the record because an objection was taken in that behalf by the learned counsel for the prosecution.
Furthermore, in his cross-examination by the learned counsel for Mian Abbas (page. 646, Volume III of Evidence) he retracted from the said position anything “it is correct that .I had prepared the spot inspection note only after the D. S. P. had returned from Rawalpindi as the Zimnls were Farzd”. In these circumstances, therefore, it was all the snore essential that Inam Ali Shah should have been examined in Court to clarify the position.
In some essential respects; however, the said two site plans are not in conflict with each other, for example, in both of them the place of occurrence shown is the same, the spots where. Arshad Iqbal and Rana Iftikhar were posted are the same and so are the four spots, two inside the roundabout and two outside of it, from where crime empties were recovered, are also the same. The main conflict in the two plans, however, is that whereas the plan prepared by P. W. Abdul Hayee Niazi is not to the scale, the one prepared by Inam Ali Shah is to the scale, and this seems to be the central point of conflict between the two parties. Now if the plan prepared by Inam Ali Shah is believed, to be the proper plan then the story of the prosecution as to the manner in which the car of Mr. Kasuri was fired upon, not only becomes doubtful but implausible. Before proceeding with the exercise of furnishing reasons in this behalf, notice may be taken of the examination-in-chief (see page 547 of the II Volume of Evidence) in which Ghulam Hussain deposed thus;
“Arshad Iqbal had said that he had fired in the air after identifying the correct car and Iftikhar informed me that he had fired at the first car which came before him after Arshad Iqbal had fired in the air.
Rana Iftikhar informed him that he had correctly aimed at the car before firing.”
In answer to a question put to him by Mr. Irshad Qureshi, the learned counsel for appellants Rana Iftikhar, etc. who seems to have supported the case of the prosecution throughout, Ghulam Hussain, however, replied (See page 561 of the same Volume of Evidence) as under “After the occurrence I had come to know who had fired the shots at the time of occurrence in Shadman. The first shot was fired by Arshad Iqbal, thereafter Iftikhar fired the shot and meanwhile the car having reached the other side of the roundabout, Arshad Iqbal turned round and opened the fire upon it from behind.”
It would thus be seen that but for the question put to him by Mr. Irshad Qureshi. Ghulam Hussain had not said a word in his examination-in-chief that after having fired the first shot (which was a warning shot) Arshad Iqbal turned round and again fired at the moving car of Mr. Kasuri. If there was any truth in the answer given by him to Mr. Irshad Qureshi it is difficult to believe that be would have failed to mention the same in his previous statements, more so, when the conduct of Arshad Iqbal was clearly in conflict with the instructions he had given him in that behalf, namely, that on seeing the car of Mr. Kasuri approaching the roundabout. He should fire in the air in order to caution Rana Iftikhar so that he should be prepared to open fire on the car passing by him.
Furthermore, in their respective confessional statements what Rana Iftikhar and Arshad Iqbal had respectively said in that behalf was that;
“We came and sat in the Chowk of Shadman Colony at about 1 a. m. Wher Ahmad Raza Kasuri’s car came there, Ghulam Hussain Inspector fired with his pistol, and we then fired with our stenguns and the car went away from there. We then returned on foot to F. S. F. office. On return, Ghulam Hussain, spoke on telephone to Mian Abbas at Rawalpindi and told him that the orders of D.-G. and P. M. have been obeyed.”
and that;
“I and Rana Iftikhar were sitting in Shah Jamal roundabout, Inspector Ghulam Hussain fired at the car of Ahmad Raza Kasuri, and according to the plan (programme) we fired indiscriminately, but the car escaped unhurt, and we returned to office.”
Now, apart from the said two confessional statements of Arshad Iqbal and Rana Iftikhar which are not only in conflict even with the version given by Ghulam Hussain in his answer to the question of Mr. Irshad Qureshi, the said version seems to be improbable, if not impossible. A look at the site plan (P. W. 34/5d) would show that the distance between the points where Arshad Iqbal was posted and the one in the extreme south-east (within the roundabout) from where six empties were recovered is 35 karams, i. e. 192.5 feet. Assuming for the sake of argument, however, that after firing the warning burst, Arshad Iqbal turned round and again fired on the moving car of Mr. Kasuri, evidently the empties should have fallen somewhere around the place where he was posted (i. e. within the hedge of the roundabout in the north) and not in the south-east of it.
It is not the case of the prosecution that Arshad Iqbal had traversed the said distance of 192.5 feet before firing at the car of Mr. Kasuri and rightly so, because in the nature of things it would have been impossible for him to run over that distance, and yet be able to effectively fire at the moving car. The position which emerges from the examination of the site plan (Exh. P. W. 3415d) and in which respect it tallies with the plan prepared by Abdul Hayee Niazi is that 7 empties were recovered from a point just outside the hedge in the north where Arshad Iqbal was posted, 5 from a point (located just within the hedge) at some distance from the point where Arshad Iqbal was posted, 6 from a point just within the hedge in the extreme south-east of it, and 6 from a point outside the hedge (located more towards the extreme edge of the road) parallel to the last mentioned point.
Now disregarding the site plan (Exh. P. W. 34/5d’) for a moment, and believing the one prepared by P. W. Abdul Hayee Niazi a3 genuine, still how can the prosecution be said to have proved its case beyond any reasonable doubt that all the said firing had been done only by Arshad Iqbal and Rana Iftikhar. I have not the slightest doubt in my mind that the firing in question was made by at least three persons, if not four. Furthermore, the prosecution was evidently cognizant of the frailty of its case in that behalf, and that was why it seems to have preferred not to disclose the existence of the site plan (Exh. P. W. 34/5d) in the challan and also opposed the examination of Inam Ali Shah as a witness in the proceeding.
It may be mentioned in this respect that while the learned counsel for the parties, were in serious disagreement with each other during the course of the arguments, the learned Special Public Prosecutor attempted to show that since Mr. Ahmad kaza Kasuri’s car had been fired upon with automatic weapons, it was not unlikely to be the work of two assailants, as also that the empties could have fallen at the said four different places.
Mr. Yahya Bakhtiar, the learned counsel for Mr. Bhutto, on the other hand, argued that by no conceivable theory could it be proved that the said firing was done only by two persons or that the empties could be found from four different places.
In order to understand the nature of the evidence on this point, a demonstration of live firing was arranged through the courtesy of Mr. M. A. Rahman, the learned A. O. R. for the State at the Armed Forces ‘Firing Range situated in the outskirts of Westridge, Rawalpindi. The demonstration, in question, was attended by all the members constituting the Bench hearing these appeals as well as the learned counsel for the parties. A Brigadier of the Armed Forces of Pakistan gave the demonstration by firing from an S. M. G. of Chinese manufacture (which was the weapon used in the commission of the crime in this case) and the invariable pattern of ejectment of empties whether firing was done in single shots or automatic bursts, noted was, that most of the empties fell towards the right and backwardly direction and some towards the right and ahead or the line of the fire at an average distance of about 20-23 feet and were scattered I from each other by 10-12 feet.
After the completion of the demonstration in question, an Inspection Note was prepared which has been placed on the’ record of these appeals. Now the said Note, being not evidence in the case, cannot he relied upon in support of any conclusion, one way or another, but it does seem to help in understanding the evidence in the case. A look at both the site plans (Exh. P. W. 34/5d and Exh. P. W. 34/2) would show that the empties were recovered from four different spots lying almost in clusters whereas from the said’ demonstration an altogether different pattern was noted.
In these circumstances Arshad Iqbal and Rana Iftikhar alone do not seem to have been the assailants as by no conceivable hypothesis can the recovery of empties from four different spots situated at some distance from each other, and that too in clusters, would be possible.
I am, therefore, of the humble view that looked at from whatever angle, the evidence of approver Ghulam Hussain is not only unnatural, and importable but patently absurd and untrue. In fact, I have no doubt in my mind that he was not present at the place of occurrence, as by the examination of his evidence and all the attendant circumstances of the case, this is the only possible conclusion.
Coming now to his confessional and Approver’s statements, or for that matter, the confessional statements made by Arshad Iqbal, and Rana Iftikhar, it would be a waste of public time to consider them in any detail. On crucial and material points, the three of them have not only contradicted themselves but also each other.
Without going into the further question whether the said statements were made by them under any inducement, threat or promise within the meaning of section 24 of the Evidence Act, 1872, their said statements are of no use against appellant Bhutto not only because they are untrue but under section 30 of the Evidence Act, they can be only taken into consideration against him. In other words, they would have been relevant only if there existed independent evidence against appellant Bhutto to connect him with the commission of crime in this case, which, however, is not there. In these circumstances, the said confessional statements have to be disregarded. Se for example :
Joygun Bib! v. The State P L D 1960 S C (Pak.) 313.
Ibrahim and another v. The State P L D 1963 Kar. 739.
Shera and 3 others v. The State P L D 1972 Lah. 563.
kashmira Singh v. State of Madhya Pradesh A I R 1952 S C 159.
L. S. Raju and others v. State of Mysore A I R 1953 Born. 297.
The prosecution has also relied on the evidence of Amir Badshah Khan, who, in 1974, was the Deputy Director, Battalion No. 1, F. S. F., Walton, Lahore and from the armoury of whose Battalion, weapons were supplied to approver Ghulam Hussain and his companions for assassinating Mr. Ahmad Raza Kasuri. The least that can be said about his evidence is that it is patently absurd, unnatural and unbelievable. The substance of his evidence is that from the armoury of his Battalion, weapons were thrice supplied to appellants Ghulam Mustafa as well as Ghulam Hussain but each time Mian Abbas had phoned him in that behalf saying that no entry thereof should be made in the Register but they be issued on chits only.
This statement of the witness is unbelievable because the type of conversation which Mian Abbas had made with him was clearly incriminating in nature and consequently, he could not have possibly talked to him in that manner on the telephone even if had spoken to him on the direct dialling system.
Furthermore, it is his claim that on-one occasion at least he asked Mian Abbas as to what would happen to him if the weapons were lost and be replied not to worry as he would look after everything. His evidence, however, shows that he was a matured man having to his credit 28 years of police service from which be retired in 1968 as Inspector, and, therefore, it is inconceivable that he could have possibly succumbed to the illegal orders given to him in that behalf by Mian Abbas, and that too on telephone.
Be that as it may, if in spite of having put in more than 28 years of service in a disciplined force, he could obey an order of the said nature with impugnity, and that too as a re-employed officer, than evidently he was a man of no scruples.
Furthermore, the evidence given by him in Court was different in some respects than what he has said in his 164, Cr. P. C. statement recorded on 16-8-77. In his evidence in Court he deposed that after Mian Abbas phoned him up for the first time, he called Muhammad Yusuf, Incharge, Armoury, and told him that appellant Ghulam Mustafa would be coming to collect some weapons and the same be issued to him only on a chit without making an entry thereof in the proper Register. Nothing of this sort was said by him in his 164, Cr. P. C. statement and when questioned in that behalf, all that he replied was that his statement was a brief one because the Magistrate was pressing him to finish his narration quickly. The fact, however, is that the witness is not truthful, because Mian Abbas enquired into certain serious allegations against him, such as----
(1) of preferential treatment given by him to his favourites, which in the result annoyed the others ;
(2) violation of the standing orders relating to canteen/ration stores ;
(3) illegal collection of cost of Articles of the kit of deserters from their fellow trainees ;
(4) illegal collection of funeral fund, mosque fund and canteen fund from the trainees ; and
(5) spreading of regional feelings and rumours as a result of which hatred was likely to be created against his fellow officers.
Now the proceedings of the said enquiry conducted against him (Exh. P. W. 20/1-D) were produced in evidence through the witness and the finding recorded therein is his immediate removal from Mandi Bahauddin where he was then posted. He was pointedly questioned by the learned counsel for Mian Abbas that in view of the said finding recorded against him, he was summoned to the F. S. F. Headquarters and given a choice to resign or face an enquiry. It is true that he did not accept the suggestion but all the same, agreed that he had indeed resigned from the F. S. F. In this respect Mr. Masood Mahmood also seems to have been questioned and he replied that he was removed from service because his utility had expired. However, this version of Mr. Masood Mahmood is in conflict with the version of the witness himself who says that he had resigned his job. From all this it should be obvious that the witness was inimical to Mian Abbas and came forward simply to wreck vengeance on him.
This leaves us with the various statements made by Mian Abbas from time to time. His very first statement (Exh. D. W. 1/1) was recorded by a special team headed by Arbab Hidayat Ullah Khan, the then O. S. D., Establishment, Islamabad (now I-G. Police, Sind) on 21-7-77, but in it he has not only levelled no accusations against Mr. Bhutto but has not even referred to him. The statement, in question, Which runs in almost 15 closely typed pages, is a sort of `White Paper’ on the misdeeds committed by Mr. Masood Mahmood specially and various officers of and the F. S. F. generally. For example, it says that Mr. Masood Mahmood was more a politician than the Head of a uniformed force ; that all his attention and energy was consumed by working for the P. P. P., and against the P. N. A., that in some of the bye-elections held to the Provincial Assembly of Punjab be actively supported the candidates of the P. P. P. by providing them with transport and similar facilities ; that political opponents of the Government of-the P. P. P. were harassed and tortured by him ; and that even in respect of the infamous Dullai Camp he used his `genius’ in ample measure. This being the nature of the said statement, evidently, it has no relevancy as to the guilt of Mr. Bhutto.
The next statement made by him is his confessional statement (Exh. D. W. 10/9) which was recorded on 18-8-77 by a Magistrate. By going through the said statement, however (it appears at page 250 of the Volume of Exhibits) it does not seem to be a confessional statement at all. What he has said therein is, and here I would ignore the irrelevant parts of it, that on or about 1-6-74 he was called by Mr. Masood Mahmood who told him that he had assigned to approver Ghulam Hussain an important mission ; that he should accordingly supervise Ghulam Hussain ; that he called Ghulam Hussain to his office and enquired from him as to the nature of the said mission ; he told him that Mr. Masood Mahmood has asked him to assassinate Mr. Ahmad Raza Kasuri ; that thereafter Mr. Masood Mahmood again called him to his office and told him that Mr. Kasuri has to be assassinated to which he replied that it would be difficult ; that Mr. Masood Mahmood, however, interjected saying that these were the orders of the Prime Minister at which he kept quiet and left his room ; that subsequently, after assessing his position, he submitted his resignation to Mr. Masood Mahmood but he got annoyed and warned him not to do so in future ; that on 24-8-74 he came to know that Ghulam Hussain had ineffectively fired at the car of Mr. Ahmad Raza Kasuri at Islamabad ; that Mr. Masood Mahmood accordingly called him, and told him that Ghulam Hussain had deliberately done so and he was right because Ghulam Hussain himself bad told him so ; that on J3-11-74, when he returned from Peshawar to Rawalpindi, he came to know that the father of Mr. Ahmad Raza Kasuri had been murdered at Lahore by Ghulam Hussain and his companions ; and that he neither knew about the said incidents, nor had arranged or provided to Ghulam Hussain or anyone else any arms and ammunition for the commission of the said two crimes.
It would thus be seen that his so-called confessional statement is wholly exculpatory in nature. Therefore, it is not a confession at all within the meaning of that expression as understood in the Law of Evidence. Furthermore, he retracted from the said confession in the High Court, therefore, it is of no use whatever. It is true that during the course of hearing of these appeals he filed, from jail, a written statement in which he has fully implicated himself in the commission of the crime, but this statement is inadmissible against Mr. Bhutto, and cannot be taken into consideration----
(1) it is not evidence within the meaning of section 3 of the Evidence Act ;
(2) It was not put to appellant Bhutto in order to afford him an opportunity to explain his position ; and
(3) that even if Mian Abbas had made the same in his examination under section 342, Cr. P. C. it could not b.- taken into consideration against appellant Bhutto.
See for example;
William Cooper v. Emperor A I R 1930 Born. 354 .
Maadec Prasad v. King-Emperor A I R 1923 All. 322.
Mt. Sumitra v. Emperor A I R 1940 Nag. 287 .
Tahsinuddin Ahmad v. Emperor A I R 1940 Cal. 250.
Having disposed of, I suppose, all the questions on facts and law, still the question which remains is whether appellants Mian Muhammad Abbas, Sufi Ghulam Mustafa, Arshad Iqbal, and Rana Iftikhar can be said to have been properly convicted and sentenced by the High Court. As regards the three last mentioned appellants, there is no doubt about their guilt, and therefore, their convictions and the sentences are proper. Right from the initial stages of the case, all of them have not only confessed to their guilt, but the learned counsel appearing for them has supported the case of the prosecution throughout. In this behalf it would suffice to see the trend of his cross-examination of the P. Ws. Furthermore, in their statements, under section 342, Cr. P. C., recorded in the High Court, all of them stuck to their confessional statements saying, however, that they were helpless agents, because of the constant threats given to them by Mian Abbas to the effect that in case they failed to assassinate Mr. Ahnlad Raza Kasuri, they would not only lose their jobs and lives, but the members of their families also would be wiped out. During the course of arguments in this Court, when Mr. Bhutto and all three of them were granted special permission to address the Court, again they remained consistent. However, they pleaded for mercy on a few grounds with which, I would presently deal.
Mr. Irshad Ahmad Qureshi, the learned counsel appearing for them contended that although they had made confessional statements, yet had not admitted their guilt. He argued that they were forced to commit the crime under duress ; that when they joined the F. S. F. they were made to take an oath showing loyalty to the then Prime Minister ; that even according to the subsequent oath taken by them, when the F. S. F. Act XL of 1973, came into force the oath taken by them was to be loyal to the Government of Pakistan, that under sections 76 and 94, P. P. C. they cannot be said to have committed any offence, as they were threatened that in case they failed to carry out the said mission, they, as well as their families, would be wiped out. In support of these contentions, he relied on Ajun Shah v. State (P L D 1967 S C 185), M. Aaim Khan v. State (P L D 1967 Pesh. 119) and Sube Khan v. State (P L D 1959 Lah. 541).
There is no force in the contention of the learned counsel. The oath which his clients say they had taken while joining the F. S. F., swearing personal loyalty to the then Prime Minister, has not been brought on the record of the case. In fact, Abdul Majeed (P. W. 4) said that the prescribed form on which the said oath was to betaken was not available on the record. Furthermore, the oath taken by them, after the coming into force of the F. S. F. Act, clearly says that they would be loyal to the Government of Pakistan to which no exception can be taken. This leaves us with the so-called threats given to them by Mian Abbas well as the legal pleas taken by them relying on sections 76 and 94 of A the Penal Code. By analysing the evidence of the P. Ws. in this case, at great length, I have disbelieved them, therefore, the question of any threat having been extended to them by Mian Abbas or anyone else seems to be a convenient device adopted by them for reasons of which they alone must be having the knowledge. Neither section 76 nor section 94, P. P. C. would help them, as in the illustration given under the former section, it is said “A, a soldier fires at a mob by the order of his superior officer in conformity, of the command of the law, A has committed, no offence”. In so far as section 94 is concerned, reliance on the same is misconceived, as murders and offences against the State punishable with death have been excepted from its operation.
The judgments relied upon by the learned counsel also do not help him. It is clear to me that his clients are no better than hired assassins to which facts the said judgment have no relevancy. He pointed out that Rana Iftikhar and Arshad Iqbal, when they committed the offence, were respectively 19 and 21 years old, therefore, advantage was taken by Mian Abbas of their young age, who, by duress and threats extended to them, made them agree to attack the car of Mr. Kasuri. Upon these facts, he said, they deserve leniency in ~he matter of sentences. I am afraid, this contention also has no force in it. Having been employed in a Force, which was maintained by the tax-payers’ money, they were matured enough to have realised not to become the instruments of oppression and assassination in the hands of their superiors. Furthermore, this Court has in more than one case awarded death penalty to young persons just over’ 17 years of age, as it was found that they had deliberately taken the life of another wantonly. It is equally true that in many cases, including some of the judgments cited by the learned counsel, this Court reduced the capital punishment awarded to the accused to one of imprisonment for life, because it was found from the record that the murder committed by him was either in revenge or else in grave and sudden provocation. None of these considerations, however, apply in the case of the said three appellants.
The case of Mian Muhammad Abbas,
however, is entirely different. In the very first statement, recorded on 21-7-1977, by a Special Team headed by Arbab Hidayat Ullah
Khan, the then O. S. D., Establishment,
In the High Court, Ashiq Muhammad Lodhi, (P. W. 28) was examined by the prosecution, who, in cross-examination by Mr. Qurban Sadiq Ikram, the learned counsel for Mian Abbas, admitted that on 1-4-1974, when his name was recommended by Mr. Haq Nawaz Tiwana for promotion as Assistant Director of F. S. F., Mian Abbas had opposed the said proposal; that during the period from 1973 to 1976 he worked in the National Assembly of Pakistan; that during the Ahmedia agitation approver Ghulam Hussain was posted on duty outside the National Assembly for reasons of security; that Ghulam Hussain was once given a reward of Rs. 500 in cash by Mr. Masood Mahmood for the good work done by him in the National Assembly in June 1974; that whenever Mr. Masood Mahmood visited the National Assembly, he would give him instructions directly; that once or twice he sent for approver Ghulam Hussain through him; that in the end of June he similarly sent for Ghulam Hussain through him and when he came, both Mr. Masood Mahmood and Ghulam Hussain remained closeted together in a room at the door of which a red light was burning ; that Rana Iftikhar was the gunman of Mr. Masood Mahmood during those days; that in June 1974, Mian Abbas told him that he had tendered his resignation which had not been accepted; and that he repeated the same information to him again in February 1976.
Now the evidence of this witness indeed supported the claim of Mian Abbas that he had twice resigned his job, first when Mr. Masood Mahmood told him that he had assigned a mission to Ghulam Hussain and that he should supervise him, and again in 1976. Both these resignations are part of the record (Exhs. P. W. 2/12-D and P. W. 2/13-D). The first resignation is dated June 1974 and the same would seem to support the claim of Mian Abbas, because according to Mr. Masood Mahmood it was sometime in the middle of 1974, when Mr. Bhutto called him and ordered him that Mr. Kasuri has to be assassinated; that Mian Abbas knew all about it, and, that he should remind Mian Abbas to get on with the job. Furthermore, the ground on which he sought to resign was that he had developed heart trouble and in this respect Mr. Masood Mahmood himself seems to have supported his claim. It is in his evidence that on a visit to Lahore, he found out that Mian Abbas was lying in hospital and so he paid him a visit. In these circumstances the claim of Mian Abbas which was also supported by the evidence of P. W. Lodhi should have carried conviction, but the High Court rejected the same. The view taken by the High Court was that in the light of the evidence of Ghulam Hussain, Amir Badshah Khan and Fazal Ali, the claim of Mian Abbas cannot be accepted, as also that in view of Bagu v. The State (P L D 1972 S C 77) the evidence of P. W. Lodhi was unacceptable “because it is well settled that when such like formal witnesses make certain concessions in favour of the accused in their cross-examination their statements cannot be considered to be of any credence, no matter, if they had been produced by the prosecution”.
With great respect to the High Court, however, the conclusion cannot be accepted. The judgment of this Court cited from the Bar was clearly distinguishable. In that case, a Foot Constable Khuda Bakhsh by name, who was a formal witness, gave evidence in respect of certain essential features emerging during the course of investigation. Relying on his evidence, it was contended on behalf of the defence that the occurrence did not take place in the manner or at the time alleged by the prosecution; that the eye-witnesses relied upon by the prosecution were not present at the time of occurrence; and that the evidence of the said eye-witnesses, was, therefore, contradicted by the medical evidence. It was in this background that this Court, approving the view taken in Sikandar Shah v. The State (P L D 1965 Posh. 134), observed:
“We cannot help observing that the frequency with which cases are coming up before us, wherein formal witnesses, particularly foot constables, are found to be obliging the defence in cross-examination with regard to matters wholly unconnected with the part the witnesses took in the investigation, is causing us some concern . . . . . . that the obliging concessions made by such witnesses in cross-examination cannot be considered to be of any value. We also hope that the Provincial Governments will take note of these observations and take steps to check such propensities on the part of their own subordinate Police Constables.”
P. W. Ashiq Lodhi was not a police constable, as he held a responsible post as Assistant Director FSF It is true that he was meant to be an informal witness in the sense of having produced his report (Exh. P. W. 28/1), alongwith a copy of covering letter (Exh. P. W. 3/2-T), sent by him to late Mr. Abdul Hameed Bajwa, conveying therein the description of the gunman of Mr. Kasuri. However, he was allowed to be cross-examined by Mr. Irshad Ahmad Qureshi, the learned counsel for appellants Rana Iftikbar, etc. in a manner which dragged him away from the field of formality into the field of informality. The learned counsel asked him if he knew, while submitting his said report, that murderous as3aults had taken place on Mr. Ahmad Raza Kasuri, at Islamabad as well as Lahore; if he inquired from late Mr. Bajwa as to the object for which he was asked to submit him a report on the description of the gunman of Mr. K3suri; and if Ghulam Mustafa and Arshad Iqbal were ever asked to perform intelligence duty in the National Assembly. From this it should be obvious that once Mr. Qureshi, who has been supporting the case of the prosecution throughout was permitted to cross-examine the witness in the said manner, evidently, the learned counsel for Mian Abbas cou14 not have b: en denied the same right.
Furthermore, unlike the Foot Constable in the above case who had nothing to do with the investigation of the case, P. W. Ashiq Lodhi was officially posted in the National Assembly of Pakistan during the period in respect of which he was cross-examined by Mr. Irshad Qureshi, the learned counsel for Rana Iftikhar, etc. Evidently, therefore, his evidence concerned his own observations to the admissibility of which no objection could be taken. The trend of his evidence seems to be inspiring confidence because he admitted in cross-examination that when late Mr. Haq Nawaz Tiwana recommended him for promotion as Assistant Director, Mian Abbas opposed the said proposal. In other words, he was not only having no soft corner for Mian Abbas but ought to have every reason to depose against him. Seen in this context, and keeping in view the fact that the prosecution has not denied his claim that during the relevant period, he was officially posted in the National Assembly; I believe him that during the Ahmadia agitation (which occurred during the same period) approver Ghulam Hussain was posted on duty outside the National Assembly for reasons of security; that whenever Mr. Masood Mahmood visited the National Assembly, he would give him instructions directly; that once or twice he sent for approver Ghulam Hussain through him; that in the end of June, 1974 he similarly sent for Ghulam Hussain through him and when he came, both Mr. Masood Mahmood and Ghulam Hussain remained closeted together in a room at the door of which a red light was burning; that Rana Iftikhar was the gunman of Mr. Masood Mahmood in those days; that Mian Abbas had told him that he had tendered his resignation which had not been accepted; and that Ghulam Hussain was once given a reward of Rs. f00 in cash by Mr. Masood Mahmood for the good work done by him in the National Assembly in June, 1974. It may be mentioned that the said cash reward .has been admitted by Mr. Masood Mahmood in his own evidence. Now, this admission on the part of Mr. Masood Mahmood would seem to reinforce me in my estimate of the credibility of the witness but, with great respect, the High Court seems to have rejected his evidence on the ground, amongst others, that in view of the evidence of Ghulam Hussain, Amir Badshah Khan, and Fazal Ali the same could not be accepted.
Enough has already been said by me about the worthlessness of the evidence of these three witnesses but the High ‘Court does not seem to have realized that Ghulam Hussain was a self-confessed criminal whereas Amir Badshah Khan was inimically disposed towards Mian Abbas because of the fact that as Inquiry Officer he had reported against Amir Badshah Khan (see Exh. D. W. 20/1-d) recommending therein his immediate removal from the command at Mandi Bahauddin. From all this it should, therefore, follow that neither the judgment of this Court, relied upon by the High Court, was applicable to the facts of this case, -nor was the evidence of Ashiq Lodhi of the type which could be rejected.
Having disbelieved all the evidence in respect of the charge of conspiracy as well as the prior and subsequent conduct of Mr. Bhutto what is left which can be taken against Mian Abbas ? As already pointed out, right from the initial stages of the investigation in this case, he denied his own involvement therein. It is true that at some stage of the investigation he made a confessional statement (which in any event was exculpatory) but he retracted the same in the High Court, and even in his examination under section 342, Cr. P. C. there he continued to remain consistent. Now this is one side of his conduct, but on the other ; he filed in this Court a written statement in which he has fully implicated himself.
Assuming for the sake of argument that his said written statement is a confession within the meaning of that expression as used in section 24 of the Evidence Act, still the question remains as to which one out of his said two conducts should be accepted 7 In this respect reference may be made to a passage appearing at page 712 of A. I. R. Commentaries on the Code of Criminal Procedure (Vol. 2) by D. V. Chitaley and S. Appu Rao, which reads thus;--
“If the accused pleads guilty, the Court should make a record of such plea. It is not, however, necessary that the Court must accept the plea in order to record it . . . . . A plea of guilty may be accepted by the Court and the accused may be convicted thereon. But the Court is not bound to accept a plea of guilty in all cases. On the other hand, the Court must carefully consider whether the accused has fully understood the nature of the charge to which he pleads guilty. A plea of guilty no less than a confession must be received with caution. Generally, the Court should satisfy itself by putting questions to the accused, in order to see whether he is aware of the facts on which the charge is founded against him and also whether he has admitted his guilt voluntarily without any extraneous pressure or expectation of lenient sentence. In cases where the natural consequence of accepting the plea of guilty would be a sentence of death, it is not in accordance with the usual practice to accept a plea of guilty.”
Now it is true that in the written statement filed by him in’ this Court as well as in his personal address made from the Bar (when he appeared in Court by special permission) Mian Abbas admitted his guilt saying, however, that he was a helpless agent as Mr. Masood Mahmood had constantly threatened him that in case he failed to assassinate Mr. Ahmad Raza Kasuri, he and the members of his family all would be wiped out. However, this Court had no opportunity to question him if he had admitted his guilt
voluntarily without any extraneous pressure, or expectation of lenient sentence. Be that as it may, he seems to me to be not guilty in the present case because (i) from the above discussion of the evidence of P. Ws. Ashiq Lodhi and Amir Badshah Khan, the stand taken by him at the earliest stage of the investigation in this case, has been corroborated, and (ii) the evidence of all P. Ws. in respect of the conspiracy entered into between Mr. Bhutto and Mr. Masood Mahmood as well as the prior and subsequent conduct of Mr. Bhutto has been disbelieved by me. This by itself ought to have sufficed to hold him not guilty at all, but even so, let us look at some of the decided cases in that behalf, by the High Courts of the Indian Sub-Continent
H. Paryathamma Hiremath v. State of Mysore (A I R 1966 Mys. 125) which seems to be directly relevant to the present case as in that case also the question now under discussion had come up for consideration in appeal ; the accused before the High Court had pleaded guilty in the appellate Court of the Sessions Judge, who after satisfying himself, accepted his said plea and convicted him. An objection was taken in that behalf in the High Court and it was observed that
“The dictum that an accused can consent to nothing is restrictive in its operation ; it means that an accused cannot legalise or validate by consent any departure from or violation of procedure prescribed by law. It is open to him to admit anything or waive his right but the provisions of the Code impose an obligation on the Courts to consider in each case whether it would be reasonable and proper to accept and act upon any such admission having regard to all the facts and circumstances of the case. The Court may in its best discretion, accept or reject it but all acceptance must be based on sound judicial discretion. So far as the accused’s rights in a Court of appeal are concerned, he is entitled to a reasonable opportunity of being fully heard and it is for him to make or not to make any admission. In fact he need not concede to anything but if he does the Court of appeal must peruse the records of the case and decide whether it could reasonably accept such admission without any prejudice or injustice to the accused. The acceptance by Court ought not to be mechanical but must be judicial in the sense that such acceptance is made with full consciousness of and after due compliance with its legal obligations under section 423 of the Code.”
I am in complete agreement with this dictum. If by the examination o all the evidence on record, the Court comes to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt, it W would be dangerous to convict an account on the basis of his own plea of guilty especially in murder case as an accused does not plead guilty to the section of the Penal Code but to the facts of the case constituting the ingredients of the offence.
In State of Mysore v. Bantra Kunjanna (A I R 1960 Mys. 177) the accused, in the Court of the Magistrate, admitted his guilt under section 304-A, I. P. C. and was accordingly convicted, and awarded a ridiculous sentence of fine of Rs. 10. The State of Mysore, feeling aggrieved of the said order, went to the High Court in Revision, the High Court consumed the conduct of the learned Magistrate in no uncertain terms but all the same acquitted the accused as from the examination of all the evidence on record it was found that the prosecution had failed to prove its case against him. As to the plea of guilty made by the accused in the Court of Magistrate, the High Court observed;
“The statement of the accused when properly considered, merely shows that he admitted the truth of the evidence adduced by the prosecution. But if the facts proved by the prosecution do not amount to an offence, then the plea of `guilty’ cannot preclude the accused from agitating in this Court, the correctness of his conviction.”
In re: U. R. Ramaswami (A I R 1954 Mad. 1020) the same view has been taken. But there is no need to multiply the process by referring to any more judgments of which there is no scarcity.
From all this protracted discussion, the main part of which seems to have been devoted to the appraisal of the evidence of P. Ws. my endeavour has been to show that with respect, the High Court accepted the evidence of the witnesses of the prosecution as a matter of course without subjecting it to proper scrutiny in line with the well-established principles bearing upon the safe administration of criminal justice. Furthermore, there has been some confusion of thought as to the burden of proof in a case of the present type, as the learned Special Public Prosecutor maintained during the arguments that the case should be decided on high probabilities and m that behalf he relied on section 3 of the Evidence Act. He further maintained that it was not the burden of the prosecution to establish by positive evidence its case nor indeed to eliminate the possibility that there could have existed more than one motive for the assassination of Mr. Ahmad Raza Kasuri. The evidence should be viewed in totality i. e. to say on “preponderance of evidence”, and in that behalf he categorically stated from the bar “I refuse to accept the onus to show that ammunition of 7.62 mm. was not in use of any other unit”. With respect to the learned counsel, however, he does not seem to have correctly stated the principles applicable to criminal cases. In Woolmingtion v. The Director of Public Prosecutions (1935 A C 462) which seems to be the basic case in point, the accused was convicted both by the trial Court as well as the Appellate Court for the murder of his wife. The accused admitted the killing of his wife with gun but denied any intention to kill her saying that it was an accidental death occurring in the course of committing suicide by him. Upon these facts the trial Court as well as the Appellate Court both recorded the conclusion that having raised the defence of accident he should have proved it. However, the House of Lords disagreed with that finding and held that-the burden of proof in a criminal case never shifts from the prosecution and the prosecution must prove its case beyond all reasonable doubt. The prosecution had failed to prove the mens rea, and therefore, the accused was acquitted. In recording the said conclusion notice was taken by the House of Lords of all the previous law on the burden of proof including the commentary by Foster in which it was laid down that once the prosecution is found to have established against the accused a prima facie case then the burden shifts to the accused to prove his innocence.
In Brij Bhushan Singh v. Emperor (A I R 1946 P,C 38) the facts were as follows :-
The accused, who was an I. C. S. Officer, beat his maid-servant Bilasia by name as he found her in compromising position with his bearer Samuel.
The case of the prosecution was that on account of the said beating Bilasia died; thereafter in the middle of the night the accused put the dead body of Bilasia in his car and drove to another village where his brother-in-law was living; that during the journey the tyre of the car got punctured within a mile of the destination; the accused, therefore, left the car and went to the village from where a party was sent for the disposal of the dead body of Bilasia; and on arrival at the spot the members of the party dismembered the body and threw the limbs away in the jungle. Upon these facts the accused was arrested. He admitted having beaten Bilasia but alleged that the beating was not severe and all that he had asked his wife was to get rid of Bilasia. However, on returning to his house at midnight from a party he found Bilasia in the house, accordingly took her alongwith his wife in his car to the house of his brother-in-law where Bilasia’s cousin Basanti by name was employed as maid-servant, that on the way the car got punctured within a mile from the said village, and therefore, all of them walked the said distance and on arrival at the house of his brother-in-law he handed over Bilasia to her cousin Basanti who thereafter disappeared from the house of his brother-in-law.
During the course of the investigation in the case the bones of Bilasia were recovered from the jungle at the pointing out of the witnesses. But in spite of all the said admissions made by the accused the finding recorded by the Privy Council was that the prosecution had failed to prove its case against him beyond reasonable doubt. In this behalf, the following dictum appearing at page 42 of the judgment may be reproduced with advantage:-
“It is true that both the Courts in India disbelieved the reasons given by the appellant to explain the midnight motor-car journey, holding that it was untrue and, indeed absurd, to suggest that such a journey was undertaken because the appellant could not face passing another night under the same roof as Bilasia ; and their Lordships entirely concur in this view. The fact, that a long motor-car journey was undertaken in the middle of the night, and that a false reason was given in explanation, raises a suspicion that the object of the journey may have been to dispose of the dead body of Bilasia, and that suspicion is much strengthened by finding that from the time when the motor-car left the appellant’s house, Bilasia was never seen alive by any independent witness, and that admittedly she had disappeared the next day. The appellant has only himself to blame for much of the course which the case has taken. But suspicion is not proof. It is impossible to say that the only legitimate inference to be drawn from this motor-car journey and the disappearance of Bilasia, is that the appellant killed Bilasia.”
In Safdar Ali v. The Crown (PLD1953FC93) the principle of law laid down in Woolmington’s case was acted upon and it was held that under section 105 of the Evidence Act the prosecution is not relieved of its duty to prove its case against an accused beyond reasonable doubt.
In Muhammad Luqman v. State (PLD1970SC10) the principle of law laid down is to the following effect:-
“With due respect to the learned Judges, it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of the fact to prove the guilt of a person, the golden rule of “benefit of doubt” to any accused person, which has been dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts would be reduced to at naught.”
The same view has consistently
been taken in Fazlul Qader Choudhury v. Crown (P L D 1952 F C 19), Sarwan Singh
: Rattan Singh v. State of
“It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole, the prosecution story may be true; but between `may be true’ and `must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.”
It should, therefore, be obvious that in the High Court these principles, and I say so with respect, were wholly ignored as if they did not form part of the Corpus Juris of this country with the result that all the evidence tendered by the prosecution was accepted without testing it on the anvil o. furnished by the said pragmatic, well tested and enduring principles. I am therefore, of the humble view that the prosecution has failed to establish its case against Mr. Bhutto and Mian Muhammad Abbas at all, much less beyond any reasonable doubt.
However, the question is as to
who had the motive for firing at the car of Mr. Ahmad Raza Kasuri first at
Abdul Qadir v. The State (P L D 1956 S C (Pak.) 407) the following dictum:----
“It may be taken as proved that both the approvers were responsible for the murder and that neither of them had any special reason falsely to accuse the appellant, but we cannot accept the finding of the High Court that neither of them had any motive of his own to kill the deceased. It is true that the appellant has not in his defence suggested any motive on the part of either of these accomplices to kill the deceased, but this by itself is an inconclusive circumstance and does not establish that in fact neither of them had any such motive. Motive is a factor which is peculiarly within the knowledge of the actor and a man’s motive in doing a thing may not be known to his most intimate friends just as the prosecution may not know the accused’s motive for a crime. All that can be said on the strength of the record of this case is that the appellant failed to prove or suggest that either of the accomplices had any reason to get rid of the deceased but the appellant’s ignorance of any such motive does not exclude the possibility of a motive having existed though unknown to the appellant. This circumstance, therefore, does not have any material corroborative value.”
Now bearing in mind the words “but
we cannot accept the finding of the High Court that neither of them had any
motive of his own to kill the deceased
Motive is a factor which is peculiarly within the knowledge of the actor
and a man’s motive in doing a thing may not be known to his most intimate
friends just as the prosecution may not know the accused’s motive for a crime”,
appearing in the said dictum, let us advert to the relevant evidence. In this
behalf notice may first be taken of the Intelligence Report (Exh. P. W. 2/Z)
submitted by Mr. M. R. Welch, Director, F. S. F.,
“To discuss at
Now the claim of Mr. Masood
Mahmood is that the said instruction had been given by him to Mr. Welch at
The next piece of evidence in this behalf would be found in the retracted confessional statement (Exh. P. W. 10/9-1) of Mian Muhammad Abbas recorded on 18-8-1977. In there what Mian Abbas has said is that on or about 1-6-1974, Mr. Masood Mahmood called him to his office and told him that he has assigned to approver Ghulam Hussain a mission and he should supervise him. Accordingly, he called Ghulam Hussain and made inquiries from him as to the said mission who told him that it related to the assassination of Mr. Kasuri. The case of the prosecution, however is that when Mr., Masood Mahmood finally conveyed to Mian Muhammad Abbas the order to get on with the jot& of assassinating Mr. Kasuri under the turvats extended to him by Mr. Btutto, Mian Abbas told him net to worry as ire had already received the said instructions through the former Director-General, F. S. F. Apart from the fact that I have disbelieved Mr. Masood Mahmood, the said assertion appearing in the retracted confessional statement of Mian Abbas ought to carry more conviction because he has remained consistent throughout, In this view again the possibility cannot be excluded that either Mr. Masood Mahmood or approver Ghulam Hussain could as well have a motive of their own to assassinate Mr. Kasuri.
The third piece of evidence in the series is furnished by Ashiq Lodhi (P. W. 28) whom I have already believed as a truthful witness. His evidence in this behalf is that during the period from 1973 to 1976 he was posted in the National Assembly of Pakistan; that during the Ahmedia agitation approver Ghulain Hussain was posted on duty outside the National Assembly for reasons of security; that Ghulam Hussain was once given a reward of Rs. 500 in cash by Mr. Masood Mahmood for the good work done by him in the National Assembly in June 1974; that whenever Mr. Masood Mabmood visited the National Assembly, he would give him instructions directly; tb1t once or twice he sent for approver Ghulam Hussain through him; that in the end of June he similarly sent for Ghulam Hussain through him and when be came, both Mr. Masood Mahmood and Ghulam Hussa:n remained closeted together in a room at the door of which a red light was burning; that Rana Iftikha, was the gunman of Mr. Masood Mahmood during those days; that in June 1974, Mian Abbas told him that he had tendered his resignation which had not been accepted; and that he repeated the same information to him again in February 1976. Now a bare look at the evidence of P. W. Lodhi should suffice to prove the wisdom of the observations made by this Court in P L D 1956 S C (Pak.) 407 to the effect that an approver can as veal have a motive “of his own to kill the deceased”. It is obvious that approver Ghulam a Hussain as well as appellant Rana Iftikhar both were quite close to Mr. Masood Mahmood, but in his cross-examination he denied to have known Ghulam Hussain although he agreed to have awarded him a First Class Certificate and a cash prize of Rs. 500 for the good job done by him while posted in the National Assembly. The fact that he admitted Ghulam Hussain to have remained posted on duty in the National Assembly would go a long way to underline the truthfulness of the evidence of P. W. Lodhi, as he also was posted on duty in the National Assembly during the said period. From this it would follow that the denial of Mr. Masood Mahmood of having known Ghulam Hussain is patently false, because he ha used to be frequently visiting the National Assembly himself and it is inconceivable that he would not know Ghulam Hussain who war, one of the few officers from the F. S. F. posted on duty in the National Assembly.
Furthermore, Mr. Masood Mahmood and Mr. Ahmad Raza Kasuri both hail from Kasur. In fact, the evidence of Mr. Masood Mahmood is that his father and the late father of Mr. Ahmad Gaza Kasuri were great friends; that he used to call the father of Mr. Ahmad Raza Kasuri as uncle; and that they had excellent relations. Notwithstanding this, however, he agreed to the plan of assassinating Mr. Ahmad Raza Kasuri through the F. S. F. of which be was the Director-General, only because he was threatened in that behalf by Mr. Bhutto. It is not his case, however, that Mr. Bhutto had threatened him with death. All that he told him was that “you don’t want Vaqar chasing you again, do you ?”, that he would have no nonsense from him or from Mian Abbas, and further that he would hold him personally responsible for the execution of his order. It is his own claim, however, that in substance what the threats extended to him actually meant were that be could be retired from service at any time, as Mr. Vaqar Ahmad had actually read out to him the relevant rule in that behalf. Now if Mr. Masood Mahmood, only to save his job, so readily succumbed to this type of pressure and agreed to be a party to the assassination of his `cousin’ then to what length it would not have been possible for him to.
The possibility also cannot be excluded that Mr. Masood Mahmood did not have all those cordial relations with the family of Mr. Kasuri as he claimed. Mr. Kasuri besides being an M. N. A., evidently belonged to a powerful landed family of Kasur, whereas Mr. Masood Mahmood did not enjoy that position, although be attained a high rank in the Government In these circumstances, it is also possible that there occurred between them rivalry and jealousy at the local level which could as well have spawned a motive in the mind of Mr. Masood Mahmood to do away with Mr. Kasuri who was evidently his strong rival in the field of power politics at Kasur.
The evidence of Ashiq Lodhi (P.
W. 28), which has been corroborated by Mr. Masood Mahmood to this extent at
least that Ghulam Hussain was posted on duty in the National Assembly in June
1974, as he had given him a cash award of Rs. 500 for the good job done there,
is that while having been posted in the National Assembly Mr. Masood Mahmood
used to give him direct instructions and on one occasion be sent for Ghulam
Hussain through him and when he came both of them remained closeted together in
a room at the door of which a red light was burning. I am, therefore, convinced
that Ghulam Hussain was not only very close to Mr. Masood Mahmcod but both the
attacks carried out on the car of Mr. Ahmad Raza Kasuri at Islamabad and Lahore
were master-minded by
Ghulam Hussain, although during the latter attack he was away at Karachi. A lot
has been said by me in this behalf to show that be did not return to Rawalpindi
from K,4rachi until about November 21, 1974, and the said date coincides with
the date mentioned in his T. A. Bill (Exh. (P. W. 31/6) which I have believed
to be a genuine document. Now this conclusion being fully supported by the
detailed discussion of his evidence hereinbefore, I am absolutely clear in my
mind that since he was very close to Mr. Masood Mahmood he went over to
It is said that fiction can be stranger than truth, but all the same it seems to me to be an extraordinary coincidence that out of the group of four, namely, Ghulam Hussain, Sufi Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad, the first three should have remained on duty in the National Assembly of Pakistan, and thus known to each other, whereas Rana Iftikhar Ahmad was the gunman of Mr. Uasood Mahmood for some time, as also that he was the immediate subordinate of Sufi Ghulam Mustafa posted under him at Lahore.
It is in the evidence of Abdul Khaliq (P. W. 41) that on the visit of retired Air-Marshal Asghar Khan to Lahore a bomb explosion had taken place at the Lahore Railway Station in March 1975, and consequently one Riaz was a paid agent of F. S. F. was caught red-handed, but subsequently let off on the intervention of the Authorities. Mr. Irshad Ahmad Qureshi, the learned counsel for appellants Rana Iftikhar, etc. cross-examined him in that behalf as to who had intervened on behalf of Riaz but the witness replied : “This aspect of the case is still under investigation”. Now there is no evidence on record, nor indeed has the prosecution alleged, that the said bomb explosion had taken place in pursuance of a conspiracy to assassinate retired Air-Marshal Asghar Khan. From this, and the many other illegal acts committed by the man of F. S. F. it would follow that Mr. Masood Mahmood not only cannot escape the responsibility but possibly intervened on behalf of the said Riaz himself and consequently got him released.
I am also in agreement with the contention of Mr. Yahya Bakhtiar that the appellation of “principal accused” so profusely used by the High Court in respect of Mr. Bhutto was improper. In the present case Mr. Bhutto had not participated in the actual attack carried out on the car of Mr. Kasuri at Lahore, and consequently in law he was only an `abettor’ and not the “principal accused”. In fact the said appellation would be applicable to Arshad Iqbal and Rana Iftikhar Ahmad, who had actually fired on the car of Mr. Kasuri, as also to approver Ghulam Hussain who claimed to have been present supervising the whole operation. In this behalf reference may be made to any standard commentary on Chapter V `of Abetment’ beginning with section 107, P. P. C. and ending with section 120, P. P. C.
Now as to the conclusions, I have not the slightest doubt in my hind that the prosecution has totally failed to prove its case against Mr. Bhutto and Mian Muhammad Abbas. Their appeals are accordingly accepted with the result that the conviction and sentences recorded against them by the High Court are set aside, and it is directed that both of them shall be released forthwith unless required in connection with some other case.
As regards appellants Sufi Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad, however, the position is different. Right from the initial stages of the case they have not only admitted the commission of the crime, but the learned counsel appearing for them supported the case of the prosecution throughout. From the evidence on record. which finds corroboration from their own confessional statements, I am satisfied beyond the shadow of any doubt that all three of them are guilty, and consequently their convictions and sentences recorded by the High Court are proper.
It may be mentioned, however, that in respect of the proper legal sentence, which could be awarded to Sub Ghulam Mustafa under section 302, P. P. C. read with sections 301, 109 and 111, P. P. C. I did entertain some anxiety but on deeper reflection am convinced that his sentence thereunder is unexceptionable. It is true that he was not present during the actual attack carried out on car of Mr. Ahmad Raza Kasuri by Arshad Iqbal and Rana Iftikhar Ahmad. But right from the initial stages of the case he has not only admitted his involvement therein but accepted full responsibility in that behalf in his confessional statement as well as in this Court when he was allowed to address the Court by special permission. Furthermore, he had gone with approver Ghulam Hussain, Arshad Iqbal and Rana Iftikhar Ahmad in search of Mr. Ahmad Raza Kasuri on the evening of November 10, 1974: the three of them finally located the car of Mr. Kasuri parked outside the house of Syed Shabbir Hussain Shah in Shadman Colony; the selection of the site, from where attack vas to be launched on the car of Mr. Kasuri, took place in his presence am’ he was also responsible for supplying the weapons. From this it would follow that he had shown his complete agreement with Ghulam Hussain, Arshad Iqbal and Rana Iftikbar Ahmad that the attack on the car of Mr. Kasuri was to be launched from the said selected site, regardless of having taken any precautions to ensure that no one else was sitting in the car with Mr. Kasuri. In other words, all of them agreed to fire at the car of Mr. Kasuri with automatic weapons and this object was indeed achieved as Arshad Iqbal and Rana Iftikhar Ahmad fired at the car from automatic weapons. In this view, his case is distinguishable on facts from the case of Mr. Bhutto in respect of whom, however, I have disbelieved the entire case of the prosecution. In these circumstances, and in view of the finding recorded by me hereinbefore that the act of firing on the car of Mr. Kasuri by appellants Arshad Iqbal and Rana Iftikhar Ahmad was not only a reckless act, but an independent act of their own, the case of Sufi Ghulam Mustafa cannot be treated differently than the case of the said appellants, except that his conviction under section 301, P. P. C. cannot be maintained, and the same is set aside. In this view, the appeal of Sufi Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad is hereby dismissed.
Finally, I would like to express my gratitude to the learned counsel appearing for both sides for the bard work put in and the dedication shown by them which has made the writing of this judgment possible comparatively within a short time. My gratitude also is specially due to my Private Secretary, namely, Mr. Budha Khan for the very hard and efficient assistance rendered to me as well as the staff of the Library who answered my frequent calls made on them for the supply of books and references promptly and efficiently.
MUHAMMAD AKRAM, J.-T have had the benefit of reading the detailed judgment proposed to be delivered by my Lord the Chief Justice and agree with his conclusions both on questions of law and facts. Accordingly, I am of the view that all the three appeals be dismissed, convictions and sentences recorded by the High Court be upheld and confirmed, as proposed by him.
DORAB PATEL, J.--For reasons recorded in my separate judgment, appended herewith, I am of the view that Criminal Appeals Nos. 11 and 12, by appellants Zulfikar Ali Bhutto and Mian Muhammad Abbas respectively, be allowed, their sentences and convictions be set aside, and they be acquitted and set at liberty forthwith, provided they are not required to be detained in any other connection.
However, I agree that Criminal Appeal No. 13 filed by appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad be dismissed and the convictions and sentences recorded against them by the High Court be upheld and confirmed, except that conviction under section 301, P. P. C. recorded against Ghulam Mustafa be set aside.
MUHAMMAD HALEEM, J.-For reasons recorded briefly in the note appended herewith I agree with the order proposed to be ,Made by my learned brother G. Safdar Shah, J. to the effect that Criminal Appeals Nos, 11 and 12, by appellants Zulfiqar Ali Bhutto and Mian Muhammad Abbas respectively, be allowed their sentences and convictions be set aikido, and they be acquitted and set at liberty forthwith, provided they are not required to be detained in any other connection.
However, I agree that Criminal Appeal No. 13 filed by appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad be dismissed tend the convictions and sentences recorded against them by the High Court be upheld and confirmed, as modified in respect of Ghulam Mustafa.
G. SAFDAR SHAH, J.-For detailed reasons recorded in my separate judgment appended herewith I am of the view that Criminal Appeals Nos. 11 and 12, by appellants Zulfiqar Ali Bhutto and Mian Muhammad Abbas respectively, be allowed ; their sentences and convictions be set aside, and they be acquitted and set at liberty forthwith, provided they are not required to be detained in any other connection.
However, I agree that Criminal Appeal No. 13 filed by appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad be dismissed and the convictions and sentences recorded against them by the High Court be upheld and confirmed, except that conviction under section 301, P. P. C. recorded against Ghulam Mustafa be set aside.
KARAM ELAHEE CHAUHAN, J.--I am in respectful agreement with the conclusions reached by my Lord the Chief Justice in his detailed judgment and would dismiss all the three appeals, and uphold and confirm the convictions and sentences recorded by the High Court against all the five appellants in these three appeals, as proposed by him.
NASIM HASSAN SHAH, J.-I am in respectful agreement with the conclusions reached by my Lord the Chief Justice in his detailed judgment and would dismiss all the three appeals, and uphold and confirm the convictions and sentences recorded by the High Court against all the five appellants in these three appeals, as proposed by him.
ORDER OF THE COURT
CIMINAL APPEAL No. 11 OF 1978
Zulfikar Ali Bhutto v, The State
According to the opinion of the majority this appeal is dismissed, and the convictions and sentences recorded by the High Court are upheld and confirmed, except that section 301, P. P. C. will not apply.
CRIMINAL APPEAL No. 13 of 1978
Mian Muhammad Abbas v. The State
According to the opinion of the majority this appeal is dismissed, and the convictions and sentences recorded by the High Court are upheld and confirmed, except that section 301, P. P. C. will not apply.
CRIMINAL APPEAL No. 13 of 1978
Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad v. The State
According to the unanimous opinion of the Court this appeal is dismissed, and the convictions and sentences recorded by the High Court against the three appellants are upheld and confirmed, except that section 301, P. P. C. will not apply to Ghulam Mustafa.
S.A.H Appeals dismissed.
P L D 1979
Before Zakiuddin Pal, J
MAHMOOD ALAM KHAN-Petitioner
versns
CHIEF MARTIAL LAW ADMINISTRATOR, ETe.-Respondent
Writ Petition No. 1080 of 1978, decided on 3rd May 1978.
Martial Law Order (C. M. L. A: s)
--- No. 12 [as amended by M. L. O. No. 33] read with Constitution of Pakistan (1973), Art. 199-Preventive detention-Judicial review Cases against petitioner either resulting in conviction before promulgation of Martial Law or pending adjudication or under investigation-Petitioner, as such, not found guilty in any case after promulgation Matrial Law-Cases registered against petitioner after promulgation of Martial Law not indicating his ever having acted in any manner prejudicial to purpose for which Martial Law was proclaimed or to security of Pakistan, etc.-Even otherwise such allegations could not be relied upon for detaining petitioner under C. M. L. A’s. Order XII unless petitioner found guilty and sentenced-Finding against petitioner for offences allegedly committed by him being absent, petitioner, held, could not be deemed to have acted in violation of Order XII-Order of detention set aside in circumstances.--[Preventive detention-Criminal trial].
G. Farid Ahmad for Petitioner.
Asi,f Jan Assistant A.-G.
Date of hearing: 30th April 1978.
JUDGMENT
The petitioner who claims to be a businessman was arrested on 1st of March 1978 and detained under C. M. L. O. 12 read with C. M. L. O. No. 33 for a period of three months. The learned Assistant Advocate-General has produced the relevant record on the basis of which he has been detained in order to restrain him from acting in manner prejudicial to the purpose of which Martial Law has been proclaimed or to the security of Pakistan, the public safety or interests, the defence of Pakistan or any part thereof and the efficient conduct of Martial Law. According to the relevant record the petitioner at present is involved in as many as 28 cases, out of which he was convicted in three, detained in one for a period of one month, acquitted or discharged in twelve while ten of the above-mentioned cases are still pending against him and two are under investigation as yet. The first conviction according to the record was made on 31st of October 1960 under section 406/420, P. P. C. He was detained for a period of one month under Maintenance of Public Order Ordinance on 16th of August, 1968 and sentenced to undergo one year’s rigorous imprisonment on 15th of October 1969 for violating Martial Law Order 16-A. Tha last sentence was awarded to him on 5th of July 1971 for a period of three months under sections 392/353, P. P. C. The aforesaid case was, however, registered against him on 4th of November 1970. In almost all the cases registered against him under sections 406/420, P. P. C. he was either acquitted or discharged though two or three of them are still pending against him. The nature of offences alleged to have been committed by him in the pending cases is invariably theft or cheating.
2. The Martial Law was proclaimed on 5th of July 1977 whereas the last three cases registered against the petitioner on 9-5-1977, 15-8-1977 and t-11-1977 are under sections 506, 379 and 457/380, respectively. The last two cases are still under investigation while the third one is pending adjudication.
The cases in which he was found guilty and sentenced or otherwise detained for a period of one month relate to the period ranging between 1950 and 1970 and the three cases in which he has been involved after the promulgation of Martial Law are either pending adjudication or under investigation. It means that the petitioner has not been found guilty in any of the cases after March 1977. The cases registered against him after the promulgation of martial Law do not indicate that he has ever acted in any manner prejudicial l ;o the purpose for which Martial Law has been proclaimed or to the security of Pakistan, etc. Even otherwise if there is such allegation against him it cannot be relied upon for detaining him under C. M. L. O. No. 12 emended by C. M. L. O. No. 33 unless he is found guilty and sentenced!
In the absence of any finding against him for the offences alleged to have been committed by him it is difficult to believe that he has acted in violation of C. M. L. O. No. 1.
3. As mentioned above even before 5th of July 1977 when Martial Law was proclaimed the nature of offences alleged to have been committed by him was altogether different from the offence contemplated by C. M. L, O. 12.
4. In view of the above the order of detention passed against the petitioner under C. M. L. O. No. 12 as amended by C. M. L. O. 33 cannot be maintained and the same is hereby set aside. The petition is accepted and the petitioner will be released forthwith if not required in any other case.
s. A. H. Petition accepted.
English translation of original
F.I.R. of Mahatma Gandhi Assassination case – 1948
First Information of a Cognizable Crime Reported under Section 154, C.P.C.
Police Station : Tughlak Road District : Central
No. : 68 Date and hour of occurence: 30.01.1948 / 5:45 P.M.
1 Date and hour when reported
2 Name and residence of informant /complainant: Shri Nand Lal Mehta, son of Shri Natha Lal Mehta, Indian, Building Lala Suraj Prasad M Block, Connaught Circus
3
Brief description of offence (with section) and of property carried off, if any 302 I.P.C.
4
Place of occurence and distance/ direction from Police Station Birla House, distance 2 furlongs
5 Name and address of the criminal
6
Steps taken regarding investigation/explanation of delay in recording information Statement of Shri Nand Lal Mehta, son of Shri Natha Lal Mehta, Indian, resident of Connaught Circus Building Lala Sarju Prasad Today I was present at Birla House. Around ten minutes past five in the evening, Mahatma Gandhi left his room in Birla House for the Prayer Ground. Sister Abha Gandhi and sister Sanno Gandhi were accompanying him. Mahatma was walking with his hands on the shoulders of the two sisters. Two more girls were there in the group. I alongwith Lala Brij Kishan, a silver merchant, resident of No. 1, Narendra Place, Parliament Street and Sardar Gurbachan Singh, resident of Timar Pur, Delhi were also there. Apart from us, women from the Birla household and two-three members of the staff were also present. Having crossed the garden, Mahatma climbed the concrete steps towards the prayer place. People were standing on both the sides and approximately three feet of vacant space was left for the Mahatma to pass through. As per the custom the Mahatma greeted the people with folded hands. He had barely covered six or seven steps when a person whose name I learnt later as Narayan Vinayak Godse, resident of Poona, stepped closer and fired three shots from a pistol at the Mahatma from barely 2 / 3 feet distance which hit the Mahatma in his stomach and chest and blood started flowing. Mahatma ji fell backwards, uttering “Raam - Raam”. The assailant was apprehended on the spot with the weapon. The Mahatma was carried away in an unconscious state towards the residential unit of the Birla House where he passed away instantly and the police took away the assailant.
Sd/-
N.L. Mehta/30.1.1948.
Having received the information I rushed to the Birla House to find the dead body of the Mahatma at room No. 3. Met Shri Nand Lal Mehta, his statement recorded and got confirmed after reading it out to him. Copy of the statement handed over to him. Came to know that the assailant was whisked away by the Assistant Sub-Inspector. It was a case of Section 302 Indian Penal Code.
All the case papers were sent to
the
Sd. in English/30 January
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