MEHRBAN Versus THE STATE

1. KHAWAJA MUHAMMAD YOUSAF SARAF, J.‑ The prosecution case briefly is that a year ago, one Mushtaq, belonging to the faction of the appellant and also his relation, received a pistol wound in a factional quarrel over a disputed piece of land; one of the persons challenged was Lal Khan, deceased. Resultantly, their relations suffered further strain and allegedly the injured party wanted to quench their thirst by taking away the life of the deceased who, being an army pensioner, had been recalled about six months ago after four to five years at home during which period he ran a small shop in his own house. Previous to Mushtaq's being injured, the appellant also used to buy cigarettes and the like from the said shop. The appellant also was in the army and posted at Nakyal. While the deceased came home on leave on the 16th of May 1972, the appellant came on a day's leave on the 18th of May. On the morning of the 19th, the appellant is alleged to have sent his brother's wife Maqsooda Begum to the deceased, his next‑door neighbour, with the message to come to his house to settle the shop outstandings. It was quite human that the deceased declined to oblige and instead desired the appellant to come to his house. The appellant did come and sitting on a cot in the courtyard, checked the register of accounts which showed a debit of about Rs.

40. The appellant then returned to his hove on the excuse of bringing the requisite amount but instead appeared with a gun. The deceased was engrossed in the register and the prosecution claims that those present in his house, namely, his wife Mst. Fatimah, his sister Karim Jan and his cousin Aziz Khan, who is also his wife's brother, warned him about Mehrban having appeared with a gun; the appellant is then claimed to have fired at him. While thus hit the rushed towards the verandah where he fell down. The gun‑fire immediately attracted Sufi Said Muhammad, the village school teacher and Mst Mashoor Jan, a neighbour. Said Muhammad was told by the decease that he had been fired at by Mehrban and on being pointedly asked by the witness as to whether it was a gun or a pistol, he replied that it was with the gun. The deceased then, told him and those present to recite Kalma which they did; the deceased also doing the same and then he breathed his last. A report was lodged on the same date and during investigations, the police recovered, at the instance of the appellant, a gun with an empty cartridge, the licensee being his father and also took into possession blood‑soaked clothes of the deceased as well as some blood?stained earth from the place where the deceased had fallen.

2. The evidence of the prosecution consists of the eye‑witness account given by Mst. Fatimah, Karim Jan and Aziz Khan and circumstantial evidence as well as some corroborative evidence which we shall presently examine.

3. Mst. Fatimah has given a detailed statement about the occurrence. She says that her husband, after returning on pension, ran a shop in their house for four to five years and was then recalled about six months back; that the shop had since remained closed. She has further said that Mst. Karim Jan and Aziz Khan had come to their house before the incident; that Maqsood Jan came and told her husband that Mehrban was calling him to his house to settle the accounts and make the necessary payment but that her husband refused to go there and asked her that Mehrban should come instead. According to her, on the return of Maqsood Jan, the appellant came to their house and both sat in the courtyard and checked the register of accounts which showed a sum of about Rs. 40 due from the appellants; that the appellant then returned to his house saying that he would bring the requisite money but instead appeared with a gun and that she, Karim Jan and Aziz warned the deceased that the appellant had appeared with a gun but that before he could run away, he was fired at by the appellant and he fell in the verandah where he died soon afterwards. She also says that Sufi Said Mohammad the village school master and one Mashoor Jan were attracted soon afterwards. She further says that the deceased already had his meals. She has repudiated the suggestion that she had told Mahmood Khan and others (unnamed people) that she had seen no one firing at her husband or that the deceased had illicit relations with the wife of her brother Aziz Khan. It was also suggested that the deceased had been fired at in the verandah where he had fallen down but this she has also denied. The next eye‑witness Karim Jan a woman of fifty‑five years is the real sister of the deceased and lives at a distance of about half a mile. She has stated that she had come in the morning for an injection which she had already purchased from the town through her son. She has repeated the prosecution story as given by Mst. Fatimah. She has also said that. Sufi Said Mohammad and Mst. Mashoor Ian reached there after the incident. In cross‑examination, she says (perhaps by way of explanation as to why they had to warn him that Mehrban had appeared with a gun) that the deceased was engrossed in the register. Aziz Khan says that he had also gone for an injection and gives the details of the incident in the same manner as given by Fatimah and Karim Jan. In cross?-examination, he has admitted that one Mushtaq who had been injured in the earlier incident was a relative of the appellant and that in that case he too was so accused, He has also admitted that one Khalil was the sister's son of the appellant and that he had broken his tooth. He has denied the suggestion that the deceased had illicit relationship with his wife or that he had killed him as a result. Mst. Mashoor Jan was declared hostile but tendered for cross‑examination. She was asked as to whether on reaching the spot, Fatimah had told her that she did not see the appellant committing the murder which suggestion she has repudiated. She was not asked any question about the alleged absence of Karim Jan but was asked about Aziz Khan about whom she has said that he was not present at that time when she went there. Master Said Mohammad belongs to a different community, is an outsider and is posted in the village. There has been no suggestion to him of any enmity with the appellant. He has denied the suggestion that he, at any time, lived in the house of the deceased. He has said that in the morning when he along with the deceased and Aziz Khan returned from the mosque after their prayers, they saw the appellant in the neighbourhood of the mosque where he had gone to attend to his natural call. He further says that it was a Friday and a closed holiday and that at about 7‑30 a.m. while he was sitting under a tree, he heard afire shot coming from the houses of the parties and ran towards it; he found the deceased lying in the verandah while Fatimah and Karim Jan were weeping. On being asked what the matter was? the deceased told, him that he had been fired at by Mehrban and to his further question as tai whether it was with a gun or a pistol, the deceased replied that it was with a gun. The witness further says that the deceased then told shim and those present to recite the Kalma and did so himself after which he breathed his last. The witness has also said that Mohammad Aziz Khan came there after his arrival.

4. Pehlwan Khan, Quarter‑master Havildar has said that Mehrhan was on leave from the 18th of May to the 19th of May and that the leave certificate Exh. P. N. which had been recovered during the investigation from the person of the deceased, had been issued to him. He has also said that the accused had come down to Kotli from Nakyal in connection with an examination on the 18th. Havildar Suleman Khan has said that he came down to Kotli alongwith some, Jawans including the appellant for an examination which ended at 11‑30 a. m. and that the appellant told him that lie had one day's leave. Doctor Ghazanfar Ali performed the post‑mortem examination. He has said that the deceased lead Pun‑shot wounds which had caused considerable damage to his lung and other organs in the neighbour?hood resulting in his death. He has also said that semi‑digested food was found an his stomach. Sh. Muhammad Din, Examiner Fire‑arms of the For?ensic Science Laboratory, Lahore, has said that the empty cartridge recovered at the instance of the accused had been fired from they gun, also recovered at his instance, Mohammad Yasin who is also a cousin of the deceased, has said that he and one Fazil P.W. met the accused in a forest; that he was carrying a rifle and that he told them that he had killed Lal Khan. Muhammad Fazil was given up but tendered for cross‑examination. He has said nothing for or against the prosecution except that Mst. Mashoor Jan was his sister. Mahmood Khan whose name has appeared in the cross‑examination of Fatimah, was also tendered for cross‑examination. He has denied the defence suggestion that Fatimah had said in his presence that she had not seen the incident, Karam Dad and Abdur Rahman have deposed about the recovery of the gun and the empty cartridge at the instance of the appellant. Maqsood Jan has also been tendered for cross‑examination. She has said that on the day of occurrence or a day before, the appellant, who, it may be recalled, is, her husband's brother, was not in the house. In his statement under section 342, the accused has simply denied the allegation against him sand said that the witnesses had given evidence because of enmity and that ho bad been implicated due to enmity.

5. In view of the statement of Sufi Said Mohammad and Mashoor Jan that Aziz Khan P. W. was not present at the time of their arrival and instead came afterwards, coupled with his close relationship with the deceased, his evidence must be rejected. As regards Fatimah, she being an inmate of the house, it being the rush‑hour for a house‑wife necessitating her presence at home; her husband who was on leave, being also at the time in the house, her presence; as such, was quite natural. Sufi Said Mohammad and Mashoor Jan who were the first to be attracted by the gun‑fire, found her there. As regards Karim Jan, she does live half a mile away but her presence is explicitly admitted Sufi Said Mohammad P. W. whose independence and disinterestedness is above any suspicion. The fact that Mashoor Jan when tendered for cross‑examination after being given up by the prosecution as hostile, was not asked any question about the alleged absence of Karim Jan on the spot although she was asked such a question about Aziz Khan, shows that even she was not prepared to go with the defence to the extent of denying her presence. It is quite usual to go to the house of her brother when the latter is back home on leave. We are, therefore, convinced that Fatimah and Karim Jan were present in the house at the time of the incident.

6. The learned counsel for the appellant urged strenuously that Fatimah and Karim Jan being interested and inimical, could not be relied upon without corroboration and that by corroboration was meant some independent piece of evidence which convincingly linked the accused with the crime in question. But can an interested witness be placed on the same level as that of an accomplice? It would be stretching the principle too far because an interested witness, after all, is nor an accomplice, either in fact or in theory. In, the case of an accomplice, corroboration is required because he is a self?-confessed, characterless person, a traitor to his comrades who first joins in the commission of the crime on the express or at least presumed understand?ing of secrecy and confidence but as soon as it is discovered, stabs them in the back by selling their life or liberty in exchange for his own. Such a depraved man can hardly be the person to inspire the confidence of a Court.

7. In so far as an interested witness is concerned, his life or liberty is not at stake. But on account of the general state of our social and moral degenera?tion, a suspicion is born as to whether the witness, when interested, actually saw the incident and if he saw it, whether he was faithfully deposing to facts as they may have actually happened? The reasons are not far to seek. There are some Police officers who consider a large number of witnesses necessary; sometimes there is no eye‑witness though there is circumstantial evidence but in their "great scholarship", these officers consider introduction of eye?witnesses' necessary and have therefore to enlist relatives of the victim who are persuaded to give 'evidence' in "the interests of the prosecution case" or enemies who consider it an opportunity to injure their opponents. Sometimes the relatives of victims themselves also implicate innocent enemies in the F. I. R. and although the investigating agency is invariably able to find out the truth due to the myth of the sanctity of the F. I. R. even in preference to truth, which still persists at drat level, they send them all for trial. Then again, the tendency to suppress: the blame‑worthy part of the victim or the ultimate victim arid, to ext parte the part of the accused, is after all essentially human. These dangers which are inherent in such evidence, certainly cannot be lost sight of, but to say that in the absence of corroboration, their evidence should necessarily be rejected, is going too far. Such a witness craters the witness‑box with a comparative disadvantage because he has to overcome the suspicion that he may have been planted on account of his relationship with the deceased or enmity with the accused. Hid veracity is tested through lengthy cross‑examination which, generally annoying, is also at times bordering on ridicule. It is a battle of credit v. discredit, fought between a trained technocrat and a simple‑folk and yet if as a result of the gruelling session, the latter escapes unhurt and despite his initial disadvantages which proclaimed his unreliability even before he entered the witness‑box, if he impresses the Court as being a witness of truth and succeeds in inspiring confidence, there seems to be no reason why the principle of corroboration should be brought into picture. To do so would amount to holding that a witness who is related to the victim or who has the misfortune of some enmity with tee accused, is invariably a characterless fellow who can never speak the truth. This is not the whole truth for there are always men and women from all classes who despite their prejudices and interests, are God‑fearing and do stick to the truth. Then take the case of illiterate village Women who may be having sharp tongues when quarrelling amongst themselves. But are essentially like a herd sit dumb‑driven cattle. If such women, as Fatimah and Karim Jan, maintain the substance of their story even after a badgering cross‑examination which included the offensive and unfounded suggestion to Fatimah that her deceased husband had illicit relations with her brother's wife and therefore killed him, why and with what justification can it be said that their evidence should be ignored unless there was corroboration?

8. Just as a witness s not being interested or inimical, does not necessarily mean that he was a witness of truth making it incumbent upon the Court to rely upon him, similarly his being interested in the sense that he happens to be a relation of the victim or inimical in the sense that her husband or brother was not on good terms with the accused, should not necessarily lead to the inference that she or he must not be speaking the truth. It seems as if we are perhaps drifting away from the golden rule that credibility in the witness‑box is the primary yardstick for determining the reliability or unreliability of a witness. If the incident takes place in or around the house of the victim, it is quite natural that only his relations who had a stake in his life, would rush to him. The tendency these days is that non‑relatives may altogether ignore the cry of distress because of the alarming growth of goondaism, the abundance of arms, the cheapness of life, the procrastination of judicial proceedings or self‑above‑every‑thing‑else attitude. These factors cannot just be ignored by the Courts and, therefore, the absence of independent witnesses even where it may perhaps have been possible to enlist them, should not lead to a hasty condemnation of the prosecution case nor allowed to be necessarily made a launching‑pad for the acquittal of persons committing dastardly crimes.

9. Dealing with the credibility of witnesses, a Division Bench of West Pakistan High Court held in P L D 1968 Quetta 7:‑

10. "A witness who apparently is wholly disinterested and independent may not be possessed of honest moral scruples to deter him from telling a lie and conversely, a person in spite of his connections and interested?ness in one party or the other may be honest enough to tell the truth and may be believed on account of his character, his antecedents, his social attributes and his station in life. But whosoever the witness and whatever his attributes, in the final analysis, the best test of his state?ment is its own inherent worth, in point of consistency, straight?forwardness as tested against the physical possibilities and the circumstances surrounding the event to which his testimony relates."

11. Dealing with a similar point, another Division Bench held in P L D 1961 Pesh. 84:‑

12. "The best test of the veracity of a witness's evidence in a criminal case is its own inherent value, checked on the tests that may be afforded by the circumstances of the case itself. It would be difficult to place reliance on a witness who may outwardly appear to be independent but whose testimony may be found to falter on such tests and similarly the evidence of a relation witness or a relation‑cum‑hostile witness may induce conviction and may be accepted as evidence of truth if it stands the test of veracity.''

13. It was held in P L D 1972 Lah. 90 that it was an established position bf law that the mere fact that the witness was interested or held to be partisan, was not by itself sufficient for disbelieving him if otherwise it could be held that he saw the occurrence and his statement inspires confidence.

14. The leading case from Pakistan on the subject is P L D 1960 S C 387 wherein the following rule was laid down by their Lordships:‑

15. "Whenever interested persons, claiming to be eye‑witnesses of an occur?rence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corrobora?tion. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from indepen?dent evidence or from circumstances not open to doubt to be true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it."

16. It was held in P L D 1969 Lah. 114:‑

17. "The principle that the testimony of witnesses who are partisan or inimical should ordinarily be discarded is not applicable to the instant case, as we find that the witnesses are natural and the report was promptly made and their conduct after the event was not unnatural. The mere fact that he must perjure and even a partisan witness may depose the truth while on oath. There is nothing inherently improbable in the acceptance of this evidence. It only puts the Courts on guard to examine that it does not falsely implicate the innocent persons and that is why the Courts insist on corroboration."

18. It seems, therefore, that subject to the witness's credibility in the witness‑box, the answers to the, following questions may perhaps, help in coming to a conclusion in cases like the instant one where the crime is alleged to have been committed by only one person:‑

(1) Was he a natural witness in the sense that he could be normally expected to be present at the place of occurrence?

(2) Could be, in the circumstances established about the crime, be normally expected to have seen the incident?

(3) Was he in a position to identify the accused a

(4) Is his version of the happening proved free from doubt?

(5) What is the degree of the enmity between him and the accused?

19. The degree of enmity is by itself very important in determining as t whether it was or was not prudent to rely upon his evidence. It is a question of fact in each case as to whether the enmity, in the opinion of the Judge, is such as could normally be expected to awaken the baser instincts of man to the extent of casting himself in the role of a witness of falsehood; it is because man, despite his failings which are no doubt innumerable, is essentially forgiving and forgetful and, therefore, a casual dispute, as exchange of hot words, routine in our community or routine disputes involving cattle or bannas etc. which are a permanent feature of village life, do not necessarily leave enmity ingrained in blood. But ‑in case where the enmity of the witness is deep‑rooted or it is proved or may be presumed by the Judge of being of such a nature as to be sufficient or likely to persuade such persons to be cast in the role of witnesses even when they may have not actually seen the incident, then, of course, prudence demands that the presumption of innocence may not be considered to have been displaced unless there was corroboration of his evidence.

20. The word 'corroboration' according to Webster, has been derived from the Latin word 'corroboratus' part of the word 'corroborare, which' has itself been derived from the Latin word 'robust', meaning strength; hence the word corroboration means strengthening or confirming something. In England, apart from certain offences to which it has been a made applicable by express statute, it developed out of the reluctance of Courts and Juries to record conviction on the sole testimony of an accomplice. As to what is meant by corroboration; reference may be made to R v. Farler (8 Car & P 108) as quoted by Lord Reading, C. J. in R. v: Baskerville (86 L J K B 28). wherein Lord Chief Baron Abinger dealing with the point said:‑

21. "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 circumstances. Now, in my opinion, that corrobora?tion 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 . . . . It would not at all tend to show that the party accused participated in it." (A. Selection of Leading Cases illustrating the Criminal Law by A. M. Wilshere, 5th Edition, page 485).

22. Dealing with the subject, in the light of English decisions, Cross says in his Evidence, 3 rd Edition at page 177:‑‑

23. "In order that evidence may amount to corroboration, it must be extraneous to the witness who is to be corroborated. This remark was made by Lord Hewart, C. J., in R. v. White-head where the accused was charged with unlawful carnal knowledge of a girl under sixteen, and it was suggested that her testimony might have been corroborated by the fact that she spoke to her mother about her condition some time after the alleged intercourse, whereupon her mother laid an information against the accused, Lord Hewart demonstrated the absurdity of this contention when he said, 'The girl cannot corroborate herself, otherwise it is only necessary for her to repeat her story some twenty‑five times in order to get twenty-?five corroborations of it. Another leading case which turned in part on the impossibility of self‑corroboration is R. v. Christie. The accused was charged with indecently assaulting a little boy who gave unsworn evidence. The boy's mother and policeman testified to the terms in which the boy bad described the assault shortly after it occurred when he also identified the accused; but the House of Lords held that these witnesses did not corroborate the boy's testimony and the conviction was quashed because the trial Judge had suggested that it did have this effect."

24. Thus what is meant by corroboration is not the spoken word of the accomplice immediately after the crime, reproduced by an ear‑witness or confirmation of any part of his story that shows or tends to show that he was linked with the crime but confirmation of his accusation that the prisoner also was connected with the crime. This confirmative evidence, however, need not be such as would by itself be sufficient for a verdict of guilty being passed, against him. The least that is, required to support a reliance upon the evidence o the accomplice is some circumstance independent of the evidence of the accomplice, linking him with the crime. The doctrine of corroboration, therefore, is a safety‑device to reinforce the hands of a Judge in tire service of life and liberty where his mind resists the evidence of an accomplice. In R v. Birkett ((1839) 8 Car & P 732) quoted in Wilshere's at page 485 where the allegation was of receiving stolen sheep, recovery of a quantity of mutton corresponding in size with the sheep stolen from the house of the accused was treated as sufficient corroboration of the accomplice. Similarly, in Jones v. Thomas ((194) 1 K B 323) quoted in Shaw's Evidence at page 234, opportunity to commit the crime coupled with suspicious circumstances was held as sufficient corroboration.

25. In the instant case, Mst. Fatimah is a natural witness, being an inmate of the very house where the crime bad been committed. The time of the commission of the crime is such when a house‑wife is normally busy in her house job. The presence of Karim Jan is confirmed expressly by the independent and disinterested witness Said Mohammad and impliedly by Mashoor Jan. The incident has taken place in the courtyard which is independently established by the recovery of blood‑stained earth from the verandah which the Serologist has found not only human blood but also of the same group as that of the blood stains on the clothes ref the deceased. Thus both Fatimah and Karim Jan were in a position not only to see the incident but also to identify the accused who was not a stringer to them.

26. The fact that they have brought the charges only against the appellant, rules out the possibility of substitution because, as pointed out in P L D 1960 S C 387, it is very rare. I have personally never come across a case of substitution. The evidence of Said Mohammad that he heard gunshot from the house and at the time alleged by these two witnesses, confirms their story to the extent that the incident took place in their house and during broad daylight which also shows‑ that they were in a position to identify the accused.

27. The learned counsel for the appellant was not able to point out any important or substantial contradiction in the evidence of the two women. Regretfully it has to be remarked that very often unnecessary stress is laid b lawyers on discrepancies and contradictions of witnesses which is then mad the basis of urging that their evidence be discarded. It is usually forgotten that contradictions in details are quite natural as it relates to one's faculty of observation and the extent of one's memory. Therefore, unless these contradictions or discrepancies are substantial and do really create a doubt about the veracity of the witnesses, it is time that we stopped making a mountain out of a mole‑hill. In this connection, it may be useful to quote Wigmore (p. 256) as quoted by Cross at page 163:

28. "The agreement of witnesses on matters of detail is often of the greatest significance but, if it were invariably required, the testimony of one honourable man could not, as Napoleon observed, prove a single rascal guilty though the testimony of two rascals could prove an honourable man guilty."

29. Therefore, being fully satisfied that the two women were witnesses of truth, they are in no need of corroboration and their evidence is by itself sufficient for conviction of the appellant. I may also point out that there is a general prejudice in the country against the appearance of women in Courts no doubt partly due to social conditions as well as man's obsession with his belief that women are intellectually inferior to him but also partly because of what may be termed as awkward questions in cross‑examination. Therefore, if persons who had not seen the incident, have to be planted as witnesses, it would normally be men and not women‑‑of course, when it is possible to have recourse to men.

30. The learned Advocate‑General relied upon the following as cor?roboration:‑

(1) Medical evidence.

(2) Recovery of gun and crime empty at the instance of the accused.

(3) Statements made by the two women to the complainant soon after the incident.

(4) Dying declaration.

31. As regards medical evidence in this case, it is only to the effect that the deceased dial .of gun‑shot wounds, had semi‑digested food and died approximately at the time and date alleged by the prosecution but it does not link the accused with the crime. It only proves that he was killed with a gun out whether the gun was used by the appellant or anyone else, remains un?answered in so far as medical evidence is concerned. Similarly, the recovery of the gun at his instance is of no assistance because no crime empty wash recovered from the place of occurrence. It was recovered alongwith the gun and, therefore, the evidence of the arms expert that it was fired from the said gun is no evidence that it was the crime‑empty involved in the killing of the deceased. Similarly, the statements made by the two females to Chann Khans soon after the incident would only enhance their credibility by showing that they bad been consistent and had given the same' version soon after the incident but it is no corroboration as understood in law: What is needed is some piece of evidence other than that if the‑witnesses who are to be corroborated linking the accused with the alleged crime.

32. Therefore, although in 'the instant case there is, no need for corroboration and the conviction could be maintained even without it; there is corroboration of their evidence in .the dying declaration made by the deceased minutes before he faded away; it has been reproduced by Said Mohammad who ??????????? is neither interested nor inimical. An outsider, who is posted in the village as a teacher, he is shown to have no axe to grind. That it was the deceased who asked them to recite 'Kalima' and did so himself while dying, shows not only that he had a clear apprehension of his approaching end but also that be was essentially a religious man and the thought of God and His holy Prophet (peace by upon him) was already upper most in his mind when he made the declaration. Even the learned counsel for the appellant who had laboriously prepared the case, could say nothing against the dying declaration except that it had riot been specifically put to the accused while being examined under section 342, Cr. P. C. A perusal of the statement shows that be has been examined at considerable length and though the dying, declara?tion has not been put to him specifically, there is a general question as to whether be had listened to the story of the prosecution and understood it, to which be has replied in the affirmative. At the end of the examination, he has again been asked as to whether he had anything further to say to which he replied in the negative. The appellant is a literate person and Rat represented in the trial Court by one of the leading members of the Bar who was present at the time of his examination. What, under these circumstances, is the effect of omission of specifically directing his attention towards this piece of evidence? The trend of authorities since 1947 is that unless the accused was able to show that he had been prejudiced, by his attention not being specifically directed towards a particular piece of evidence, the omission would not make any difference and does not call for a remand. In P 1, D 1955 F C 88, a case under section 409, P. C., the only relevant question put to the accused was. "You have heard the examination and cross‑examination of the witnesses. What is your defence?" His reply was, "I am innocent". Their Lordships declining to interfere with the conviction, held:‑

33. "The accused is literate and could very well follow the nature of the proceedings against him and was also aware of the prosecution case. Since no miscarriage or failure of justice has been proved in this case, section 537 of the Cr. P. C. would cover it and for that process no interference is called for by this Court."

34. A similar question arose in P L D 1‑956 S C (Ind.) 301. The relevant part bf the judgment is reproduced below:‑

35. "Learned counsel for the appellants has very strenuously argued before us the point, relating to the inadequacy of the examination of the appellants under section 342, Criminal P. C, Now, it is true that the examination in this case was absolutely perfunctory. The only questions put to each of the accused in the Sessions Court, and the answers thereto were the following:‑‑

36. ?Q. You have heard the charges made and the evidence adduced against you. Now say, what is your defence? What have you got to say?

37. A. I am innocent.

38. Q. Will you say anything more?

39. A. No.

40. Q. Wilt you adduce any evidence in defence?

41. A. No.

42. 'There can be no doubt that this is very inadequate compliance with the salutary provisions of section 342; Criminal P: C. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing "Tars Singh v. The State" on a due and fair compliance with the terms of section 342, Criminal P. C. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342, Criminal P. C.

43. It is settled that clear prejudice must be shown, This Court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. This Court in its judgment in the latest case on this matter viz. K. C. Mathew v. The State of Travancore‑Cochin (delivered on 16th December 1955) has laid down that "If the counsel was unable to say that his client had in fact been Prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough."

44. It may he pointed out that the appellant's defence was a total denial and, therefore as pointed out in P L D 195.7 S C, (Ind.) 133 at page 141, even if a question had beer, put to hi‑n. it would have only elicited a denial from the appellant; therefore, the failure of the trial Court to specifically question the appellant about the dying declaration, not having caused any prejudice to the appellant, is available as sufficient corroboration of the evidence given by Fatimah and Karim Jan.

45. Under these circumstances, we see no force in. this appeal which is hereby dismissed. The record shall now be sent to the Government for confirmation of the sentence of death.

46. Appeal dismissed.