ORDER OF REFERENCE The story behind this case seems plain enough. On 4th April, 1965 one Muhammad Hussain complainant (P. W. 1) lodged a report with the police to the effect that the accused entered his shop through a ventilator and stole away a purse containing about Rs, 909. The accused was allegedly caught red-handed by some persons. The police made necessary investigations and challaned the accused and hence this case.
2. All the 5 P. Ws. Have been examined in the Court, P. W. 1 Muhammad Hussain has deposed that in April last year, probably, on 12th April, 1965 he closed his shop at about 9.15 p. m. And went to a nearby shopkeeper Aurangzeb by name for the recovery of some outstanding amount. Hardly he had been away for 10-15 minutes when he heard a noise and rushed to his shop, alongwith Aurangzeb. There is a Church behind his shop. He saw the accused in the courtyard of the church who had been caught hold of by 2 Chaukidars Ghulam Nabi and Khan. They informed him that the accused had jumped into his shop through the ventilator which opens in the courtyard of the church, and that he was caught red-handed by them. The P. W. Adds that in the meantime S.H.O.
Sultan Shah and a constable came. He found that the door of his Studio (shop) was broken. The bolt of the drawer of a table of his was also found broken and his purse containing about Rs, 600, a cheque and a bill etc. Were missing. He further stated that the police recovered purse P. 3, 2 one hund red Rupee notes P. 4 and P. 5, fifty Rupee-notes, P. 6, P. 7, 26, currency notes of ten Rupees each P. 8 to P. 35, 5 notes of Rupee five each P. 34 to P. 39 and one-Rupee notes P. 40 to P. 58, a cheque for Rs, 300 drawn on United Bank Ltd. P. 59 and a bill P. 60 and took these into possession vide memo. Exh. P. A. Which was signed by him. P. W. 2 Aurangzeb has fully corroborated the testimony of P. W. 1 on all material points. P. W. 3 Khan Chaukidar has deposed that on 4th April, 1965 at about 9 p. m. He was on a checking round of the locks of the closed shops and when he reached `Hashmi photographers' he heard a sound indicating some sort of breakin g of wood. He went towards the other end of the shop and found that one iron rod of the ventilator was missing.
In the meantime Parvez acc used came out of the shop through the ventilator and jumped down in the courtyard of the church. He caught bold of the thief. Gbula m Nabi, P. W. Also reached there. The accused bite him on his left arm with his teeth. Then Muhammad Hussain Hashmi, P. W. Came. The Police also came and recovered a purse, P. 3, cheque and currency notes worth Rs, 609, P. 4 to P. 60 and took these into possession vide memo. Exh. P. A. Which was signed by him. P. W. 4 Ghulam Nabi chaukidar has amply supported the statement given by P. W. 3 chaukidar. P. W. 5 Sultan Shah, S. I. S. H.O. Has deposed that he made investigations in the case on the basis of a report, Exh. P. B. Lodged by Muhammad Hussain, P. W. And recovered purse, P. 3, currency notes worth Rs, 609, P. 4 to P. 58 cheque, P. 59 and a bill, P. 60 and took these into possession vide memo., Exh. P. A. He prepared site plan, Exh. P. C. And challaned the accused.
3. The accused was charge-sheeted under section 457/380 P. P. C. But he could not be explained the contents as his counsel took the plea that he was deaf and dumb, However he produced one D.
W. Altaf Hussain who has deposed that the accused was not on good terms with Sultan Shah S. H.O.
And was of good moral character. I would reject the defence evidence as thoroughly unconvincing and a poor substitute for an effective rebuttal of the prosecution's case.
4. P. W. I Muhammad Hussain admitted in cross-examination that the accused used to visit him for getting his camera filled up with films. He further stated that he was not aware if the accused was deaf and dumb, P. W. 3 and P. W. 4 have expressed their ignorance about the identity of the accused whom they saw for the first time on the day of occurrence. Almost all the P. Ws. Are disinterested persons and have deposed what they saw at the spot. There is no reason to disbelieve their testimony especially when they have no axe to grind and are not likely to gain anything in case the accused was convicted. Briefly speaking I would say that the prosecution's case is overwhelmingly strong and except a few minor discrepancies here and there, the P. Ws.
Have delivered their testimony with case and confidence. There are eye-witnesses for lurking house trespass for the purpose of committing theft. The stolen property has been duly recovered, and identified by the owner. In this way truth gets straighter play.
The accused is a young boy of 17 or 18 years of age. He has produced a medical certificate showing that he is deaf and dumb. He was represented by a counsel and was accompanied by his father on all dates y of hearing. It was argued by the learned counsel for the accused that the accused was too young and that he was deaf and dumb also. These things could have aroused sympathy only if the case against him had been weak. It is really a pity that a young boy of such a description should be so daring as to commit an offence of this type. Little brooks make big rivers and if this is the beginning then the end would surely be very alarming indeed. It would have been much easier for me to acquit the accused and dispose off the Me without any difficulty but then this would have been against the law and against the interest of society. Such antisocial elements would have been encouraged and the ends of justice would have been defeated. Therefore, I preferred to make out a case on merits. The accused cannot take shelter behined the plea of being deaf and dumb. Why did he then commit this offence ?
After a mature and careful consideration of the evidence on record, and weighing the probabilities and circumstances of the whole matter I am-of the opinion that the accused is guilty and he is hereby convicted under section 457/380, P. P. C. The sentence will be passed by the High Court as the accused is deaf and dumb and this case is hereby forwarded to the District Magistrate for favour of onward transmission to the High Court as required under the provisions of section 341, Cr.
P. C.
This reference under section 341, Cr. P. C. Has been made by the District Magistrate, Rawalpindi, for awarding appropriate sentence to Parvaiz Iqbal alias Billo alias Abdur Rehman Caste Janjuah Rajput, D. A. V. College Road, Rawalpindi, a deaf and dumb young boy who had been found guilty of a charge under section 457/380, P. P. C. At the conclusion of his trial on 26th April, 1966, by Mr. Irshad-ul-Hassan, then posted as Magistrate 1st Class, Rawalpindi.
2. The prosecution case in brief is that at about 9.30 p. m. On 4th April, 1965 Muhammad Hussain Hashmi (P. W. 1) the Proprietor of Times Studio in Liaquat Market, Rawalpindi closed his shop and went over to the neighbouring premises of Aurangzeb (P. W. 2) and shortly thereafter he heard an alarm from the back side of his shop and rushing in that direction found Pervaiz accused in the clutches of Mullah Khan and Ghulam Nabi, P. Ws. The two Chowkidars of the locality who told him that on taking a round they heard some hustle and bustle in his shop and coming on that side noticed the accused jumping down from the ventilator they caught hold of him at the spot.
Muhammad Hussain Hashmi and Ghulam Nabi, P. Ws. Went to the Police Post (D) Division and informed Sub-Inspector Sultan Shah about it who came to the spot with them and took Pervaiz accused into his custody from Mulla Khan, Chowkidar. His personal search yielded a purse (P. 3) containing Rs, 609 in currency notes, (Exh. P. 4 to P. 58) alongwith a cheque of Rs, 300 of United Bank Ltd. (Exh. P. 59) and a bill (Exh. P. 60) which he had stolen from his shop, and taken into possession vide Exh. P. A. The present case was registered against him on the statement of Muhammad Hussain Hashmi (Exh. P. B.) which forms part of this cord as first information report while Exh. P. C. Is the rough site plan the place of the occurrence. Pervaiz accused was found injured so the e'bub-Inspector drew out his injury statement, Exh. P. D. And got him medically examined from Dr. Muhammad Afzal who found three blunt simple injuries on his person. He was consequently put on trial resulting in his conviction as above and the reference.
3. A notice was accordingly issued to the accused but no one put in appearance on his behalf. I have, however, perused the record with the assistance of the learned counsel for the State and found that the learned trial Magistrate had not complied with the imperative provisions of this section.
3-A. The challan was put in Court on 20th July, 1965 and the recording of the prosecution evidence was concluded on 28th September, 1965 Mr. Muhammad Khalid, then Magistrate 1st Class, Rawalpindi, but before he could apply his mind to the facts of the case it was transferred on 9th November, 1965 to the Court of Mr. Shafiq Ahmad, then Magistrate 1st Class, Rawalpindi and was later made over to Mr. Irshad-ulHassan on 4th January, 1966 for disposal in accordance with law.
He posted it to 18th January, 1966 for further proceedings when it was urged before him that the accused was deaf and dumb. On perusal of the record he found that his predecessor (Mr. Muhammad Khalid) had made a note in the statement of Muhammad Hussain Hashmi, (P. W. 1) that the accused had himself given out his name as Pervaiz Iqbal and recorded a note about it in the daily order sheet and adjourned the case to consider the implication of this belated disclosure.
He, however, got the accused medically examined from Doctor Mehtab Akhtar who opined vide Exh. D. A. That the accused was deaf and dumb which seems to have been accepted by the learned Magistrate without recording his statement about it with the result that the trial concluded without bringing on record the necessary material indicating that Pervaiz lqbal accused was incaThe fact that the accused is deaf and dumb does not per se justify a reference under section 341, Cr. P. C. Unless he is also found incapable of following the proceedings. It would not be out of place to reproduce here this section in verbatim for a ready reference : "Section 341. If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the enquiry or trial ; and, in the case of a Court other than a High Court, if such enquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as if thinks fit."
A plain reading of the provisions of this section would show that it is obligatory for the Magistrate to record a finding before proceeding with the trial that the accused being deaf and dumb could not be made to understand the proceedings and to forward the record to this Court after his conviction with a report of the circumstances of the case, but in the present case the learned Magistrate had given no such finding nor had he submitted any report about the circumstances of the case including the conduct of the accused during the trial forming the basis of this inference. It was observed in Allah Dia v. Emperor , that a reference under section 341, Cr. P. C. Can be made only if the accused, though not insane cannot be made to understand the proceedings and this requirement of law is not satisfied when the accused is a deaf-mute, but can understand the proceedings. The same view was taken in Emperor v. Gunga . A guideline was suggested in this respect by Davis, C. J. In Lao v. Emperor , in the following terms :- "Merely because the accused is proved to be deaf and dumb by birth, section 341 does not necessarily apply to his case. For the section to be made applicable the Court must be satisfied that the accused cannot be made to understand the proceedings. The Judge must attempt to find out whether the accused cannot be made to understand the proceedings against him by means of signs. A proper endeavour should be made to enable the accused to understand the proceedings before section 341 is applied and only when such an endeavour has failed and the Judge is satisfied that he cannot be made to understand the proceedings by means of signs, does section 341 properly apply. Then a proper finding within the meaning of section 341, Cr. P. C. Must be given and the Judge must then exercise his discretion under that section as to manner in which he should deal with the case."
The same view was taken by the Courts in India, in Peetha's case , Their Lordships had observed that the provision of section 341 can be invoked only when the accused is unable to follow the proceedings and the Court making a reference should record a finding as to whether the accused, though deaf and dumb, had sufficient intelligence to understand the criminal character of the act committed by him. It was reiterated by the Mysore High Court in State Mookamma Yellamma and another .
4. Going back to the Courts in our country I find that their Lordships of the Supreme Court had given the same directions in Alam Khan v. The State , that the Sessions Court while forwarding the case to the High Court under section 341, Cr. P. C. Should also record a finding as to whether the accused, though deaf and mute, had sufficient intelligence of knowing that he was doing what was wrong and contrary to law.
5. In the present case, although the defence counsel had taken this plea during the examination of the very first witness, the Magistrate then seized of the case took no steps to get him medically examined by any doctor and give a proper finding about it. He proceeded on with the case and concluded the prosecution evidence, but was transferred before he could apply his mind to the case. The last Magistrate who decided thi case had no idea about the conduct or demeanour of the accused during these proceedings and accepted the bare certificate of Dr. Mehtab Akhta about it without recording his evidence in this behalf, and declaring him deaf and dumb, forwarded the case to the District Magistrate for it onward transmission to the High Court as required by the provisions o section 341, Cr. P. C. Without giving the requisite finding prescribed in this section that he was incapable of understanding the proceedings. He had thereby violated the imperative provision of law prescribed for the trial of such persons which had vitiated the entire proceedings in this case.
6. It would be unfair and extremely agonising if the case is remanded for a fresh trial in accordance with law after the lapse of over seven years of the alleged occurrence, especially when the1 2 3 4 5 6 evidence already recorded does not inspire confidence I therefore proceed to dispose of the reference on merits as done in Muhammad Aslam's case .
7. The occurrence as unfolded at the trial by Muhammad Hussain Hashmi (P. W. 1) is on the face of it so improbable that it did not appeal to reason. According to his own showing he had left his shop hardly 10 or 15 minutes before the detection of this burglary. Within this short span of time a deaf and dumb-mute is said to have scaled over the roof of this shop from behind and then approaching the ventilator at the back he had removed an iron bar to effect, his entrance through it and slipping down into its back portion called studio or a dark room broke open the intercommunicating door (also locked from the other side) and went into the main room and locating the drawer of the table there pinched his purse (P. 3). He then retreated through the same ventilator after undergoing the ordeal of climbing to it and then jumping down on the other side with his head downward resulting only in a simple scalp deep contusion and the head and an abrasion on the shoulder. To crown all no implements of burglary or means of scaling over the roof of the shop or for going down the ventilator like a rope or chain were recovered from the premises or from his possession. Anyhow this dangerous enterprize could never be carried out in so short a time. Even the evidence about the registration of the case at the instance of Muhammad Hussain Hashmi (P. W. 1) the time and place of his arrest, the recovery of the purse containing currency notes etc., the production of the accused at the Police Station is so discrepant that no implicit reliance could be placed on the testimony of these witnesses about these salient features of the case.
7-A. Taking this view of the matter I set aside the conviction of the respondent and acquit him of the charge levelled against him. The record D shows that Pervaiz Akhtar respondent is on bail, so his bonds shall stand discharged. AIR 1929 Lab.. 840 AIR 1930 Lah. 64 AIR 1943 Sind 237 AIR 1959 Kerala 165 AIR 1964 Mys. 182 PLD 1964 SC 801 PLD 1954 Lah. 569