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Criminal Appeal No. 2 88 and Death Reference No. 8 of 1968, decided on 5th November 1968.
Statements of co‑accused‑No evidence against other accused‑Such statements may, however, be taken into consideration for purpose of leading assurance to any indepen dent evidence sufficient to sustain conviction of accused.
S. 302/34‑Murder'‑Indepen dent evidence against accused not enough to sustain their conviction ‑Statement of co‑accused, held, in circumstance, hardly of any value against accused.
S. 302‑Murder‑Sentence Murder committed in cruel fashion to satisfy a base motive‑‑No extenuating circumstance in favour of accused‑Sentence of death confirmed.
Abdus Salam Khan with Julmat Ali Khan and Mirza Abdul Matin for Appellants.
A. T. M. Masud, Deputy Legal Remembrancer with Mudabbir Hossain and Akram Hossain Amin for the State.
We have before us a Reference under section 371 of the Code of Criminal Procedure made by Mr. M. A. Barkat, Sessions Judge, Rajshahi, for confirmation of the sentences of death passed upon 8 persons, namely (1) Kazi Abdul Wahed, (2) Obedullah, (3) Ebad Ali Pramanik, (4) Ayez uddin Gain, (5) Abdul Ahmad Pramanik, (6) Azizur Rahman, (7) Munshi Golam Rabbani, and (8) Maziruddin Sardar as well as an appeal by 17 persons including the aforesaid condemned‑prisoners from the order of conviction and sentences passed on them under section 302/34, 354 and 120‑B of the Pakistan Penal Code. Both the Reference and the appeal have been heard together and they are now being disposed of under one judgment.
The facts of the case may briefly be stated as follows :‑
Chiefly over Dayarampur Union Council affairs there were troubles and ill‑feeling between Dr. Abdus Salam (deceased) on the one hand and appellant Azizur Rahman, the then Chairman of the said Union Council and appellant Munshi Golam Rabbani and their supporters. On the other Dr. Abdus Salam was a medical practitioner having a dispensary in Dayarampur Bazar and he, too, was sometime Chairman of Dayarampur Union Council. Appellant Azizur Rahman became Chairman of the Union Council by defeating Dr. Abdus Salam. Dr. Abdus Salam was trying to become Chairman once again by removing appellant Azizur Rahman and with this end in view the forma was making a serious attempt to requisition, a special meeting of the Council for the purpose of passing a no‑confidence resolution against the latter. This created animosity between the parties. There were also troubles between the parties over the distribution of khas lands' of Dayarampur Rajbari. The prosecution alleges that all these led appellants Azizur Rahman and Munshi Golam Rabbani and the other appellants who belonged to their party to hatch a conspiracy to take away the life of Dr. Abdus Salam. There were several meetings in which the conspiracy was alleged to have been made and in pursuance of the conspiracy Dr. Salam was murdered. Previous to the fateful day of murder a meeting was convened by or at the instance of Dr. Salam to decide upon the arrangements to be made for celebration of the Independence Day on the 14th August 1966. The meeting was held on 6th August 1966 in front of Dr. Salam's dispensary at Dayarampur Bazar, and it was attended by about 50/60 persons and continued till 10 p. m. Thereafter Dr. Salam and P. W. 1 Sachindra Nath Sarkar P. W. 18, Sudhangsu Kumar Sarkar and Dr. Salam's nephews P. W. 10, Abdul Kuddus and P. W. 15 Abdur Razzaque went to Dr. Salam's dispensary. At midnight both P. Ws. Sud hangsu and Kuddus left for their home and P. W. Razzak, who was also a compounder of Dr. Salam fell asleep in the dispensary. At 12‑30 a. m. on the 7th August 1966 Dr. Salam and P. W. 1 came out of the dispensary and found appellant Ebad standing in the south‑cast corner of Dr. Salam's dispensary. Ebad had a lathi in his hand and on being question by Dr. Salam said that he was Ebad and that he had been sent there by condemned‑prisoner Ayz uddin. At about I a.m. Dr. Salam went to the nearby mosque to say his prayer and asked P. W. 1 to wait for him in the dispensary. Having waited for 15 minutes P. W. 1 apparently became impatient and he started for his house with a lantern in his hand with the idea of seeing Dr. Salam en route, as the mosque lay on his way home. As P.W. 1 approached the north‑east corner of the mosque he saw condemned‑prisoners Abdul Wahed, Abdul Ahad, Obedullah and Ayezuddia dragging forcibly Dr. Salam from the mosque. P. W. 1 found the mouth of Dr. Salem covered with a gamcha (napkin) and also saw appellant Ebad with a lathi in his hand. On the road to the south‑east of the mosque P. W. 1 saw other 5/6 persons (not recognised and named by P. W. 1 in the jute field lying to the east of the mosque. It was a moonlit night and P. W. 1 became dumb founded at what he had seen. Condemned‑prisoners Abdul Wahed and Abdul Ahad, who were armed with a knife and a lath respectively, having noticed P.W. 1 threatened to cut him to pieces. P.W. 1 was, however, ultimately let off after a promise had been extracted from him not to dis close what he had seen to anybody. Condemned‑prisoner Ahad broke the chimney of the hurricane of P. W. 1 and both the sleeves of his shirt were torn due to struggle with the aforesaid two prisoners. P. W. 1 Sachin immediately ran to the house of P. W. 34 Masiruddin (who subsequently became Chairman of the Dayarampur Union Council) and told him all that P.W.1 had seen at the mosque. P. W. 1 further said that Dr. Salem had been dragged towards the river ghat to the south of the mosque and that the former apprehended that Dr. Salam might have been killed by those miscreants by that time. P. W. 34 Masir called a number of persons and they, too, heard of the occurrence from P. W. 1 and from Masir. They all then proceeded towards the mosque which lay en route to the river hat, and on the way they met P. W. 2 Esaruddin Khan and P. W. 3 Taseruddin Pk. both of whom were then returning from Baneswar hat. P. Ws. Esaruddin and Taseruddin reported that they had seen condemned prisoners Fazu Kazi, Golam Rabbani, Azhar Molla and Mazir Sardar near the Union Council Office going in a great haste towards Nvest with a potla (bundle) in the hand of the said Fazu Kazi, and that the wearing clothes of all these condemned‑prisoners were seen wet. They searched for Dr. Salam everywhere including the river but could not find him. In course of their search P. W. Masir's party found appellant Ebad concealed in the north of the house of P. W. 1.1 Meghnath Shaha situated in Dayarampur Bazar. Appellant Ebad was caught in front of the dispensary of Dr. Abdus Salam and on being questioned about the whereabout of Dr. Salam he made an extra‑judicial confession and said that while Dr. Salam was saying his prayers in the mosque the four condemned‑prisoners, namely, Wahed, Ahad, Obedulla and Ayzuddin gagged the mouth of Dr. Salam with a gamcha (napkin) and dragged him out of the mosque while appellant Ebad was standing on the road near the mosque with a lathi in his hand. Ebad further disclosed that condemned‑prisoners Fazu Kazi, Golam Rabbani, Azhar Molla, Mozir Sardar and appellants Azizur Rahman, Khoda Bux, Munser Mondal and Azhar Mondal were then standing in a jute field nearby and that they had all joined in taking away Dr. Salam to the river ghat. At the river ghat, Ebad proceeded to state, Dr. Salam was put into shallow water of the river and thereafter condemned‑prisoner Wahed slaughtered Dr. Salem with a knife and severest the head from the body. The other 12 accused persons caught and helped Wahed in slaughtering Dr. Salam. Condemned‑prisoner Wahed then washed the severed head of Dr. Salem in the water of the river and folded it in Dr. Salam's lungi and jama (shirt) into a potla (bundle) and handed it over to condemned‑prisoner Fazu. Ebad futher stated that the condemned‑prisoner Wahed then cut the belly of Dr. Salem and threw his body into the river. 'There after condemned‑prisoners Fazu Kazi, Golam Rabbani, Azhar Molla and Mazir Sardar went away towards west taking Dr. Salem's severed head in the potla. It was on hearing this confession from Ebad that P. W. Masir sent some people including P. W. Abdul Kuddus to catch and bring condemned prisoners Wahed, Ahad, Obeduliah and Ayzuddin, and the two condemned‑prisoners, Wahed Kazi and Obedullah were then brought near the dispensary of Dr. Salam where both of them made similar extra‑judicial confessions implicating themselves as well as the other accused persons in the crime. P. W. 10 Kazi Abdul Kuddus was then sent to the Police Station to lodge a First Information Report, and it was lodged at Bagatipara P. S. on the 7th August 1966, at 6 a.m. P. W. 39 K. Zaman, Investigating Officer, visited the mosque and river ghat on the same day and found certain alamats at both the places and seized the alamats. The headless body of Dr. Salam was recovered from the river in the afternoon of 8th August 1966. The dead body was identified with reference to some distinguishing marks. After an inquest the dead body was sent for post‑mortem examination. In the opinion of the Doctor who held the autopsy the death of Dr. Salam was due to severing of head from his body. The other accused persons were found absconding and consequently is proclama tion, for their arrest and for attachment of their property was made. Condemned‑prisoner Ayzuddin was arrested on the 23rd of June 1966 and he first made an extra judicial confession, and subsequently on the 25th August 1966 also a judicial confession before a First Class Magistrate admitting his complicity in the murder of Dr. Salem. The condemned prisoner Ahad surrendered before the Court on the 17th August 1966. All the other accused persons were either arrested or they surrendered before the Court subsequently. Condemned prisoners, Wahed, Abad, Obedulla and Ayzuddin and appellant Ebad were charged under section 302/34, P. P. C. and they were also charged under section 364, P. P. C. Condemned prisoners Fazu Kazi, Gholam Rabbani, Maziruddin Sardar and Azaher Molla, and appellants Munser Mondal, Azizur Rahman, Khuda Bux Sardar and Azaher Ali Mondal were charged under section 302/34, P.P.C. An additional charge under section 120‑B of the Pakistan Penal Code was framed in the Court of Sessions against all the 17 prisoners.
The defence taken by the accused persons at trial was (1) that the extra‑judicial confession of condemned‑prisoners Wahed, Obedulla, Ayzuddin and Ahad and appellant Ebad were procured by threat, intimidation, inducement and assault and the confessions were therefore retracted by them ; (2) that deceased Dr. Salam was a man of lose moral character and had therefore many enemies who might have killed him ; (3) that P. W. 1 Sachin Sarkar had ill‑feeling with the condemned‑prisoner Golam 1, abbani over cancellation of the food dealership of the former. P. W. Sachin Sarkar had also ill‑feeling with appellant Azizur Rahman, condemned‑prisoners Ayzuddin, Ahad, Fazu Kazi and Wahed Kazi over various matters ; (4) P. Ws. Sachin, Masir and some other P. Ws. belonged to the party of Dr. Salam and the accused persons belonged to the rival party, and as a result of rivalry and enmity between the two parties the complainant party falsely implicated the accused persons out of grudge and the prosecution witnesses deposed against the accused persons falsely due to this enmity ; (5) P. W. Masir had enmity with condemned‑prisoner Fazu Kazi as the former had defeated the latter in Union Council election and P. W. Masir had enmity with appellant Azizur Rahman in connection with certain pro perties. For all these reasons the defence alleged the complainant party falsely implicated the accused persons in the case.
All the 3 assessors who assisted the learned Sessions Judge at trial unanimously found all the 17 accused persons guilty of the charges framed against them except the charge under section 120‑B, P. P. C. against four or the appellants. The Assessors unanimously found appellants Sakiruddin Sardar, Jadu Sheikh, Aminuddin Sardar and Manik Ulla Sarkar not guilty of the charge under section 120‑B. 'The learned Sessions Judge on a consideration of the evidence in the case and having disagreed with the opinion of the Assessors in respect of the charge under section 120‑B, P. P. C. in respect of appellants Sakiruddin, Jadu, Aminuddin, and Manik Ulla convicted all the accused persons of the charges framed against them and sentenced the 8 condemned prisoners to death, and all the appellants including the condemned prisoners to various terms of imprisonment.
Mr. Abdus Salam Khan has appeared before us on behalf of all the condemned‑prisoners as well as the other appellants, while the learned Deputy Legal Remembrancer has appeared on behalf of the State.
Mr. Abdus Salam Khan has advanced several contentions against the impunged convictions and sentences. They are as follows :‑
(i) There is no eye‑witness of the occurrence either whole or in part.
(ii) The accused persons have been falsely implicated due to serious party factions and enmity.
(iii) The extra‑judicial confessions of Ebad, Wahed and Obedulla were not made : (i) as they were not mentioned in the F. I. R., (ii) if made, they were not voluntary as the confessions were the result of beating and torture ; (iii) the state ments attributed to the 3 confessing accused persons were not made in the manner stated by the prosecution ; (iv) the con fessions are not true ;
(iv) The judicial confession of Ayzuddin is not only self- excalpatory but it is also inconsistent with the other evidence in the case.
(v) There are discrepancies in regard to the seizure of the alamats and consequently their, seizure is of no value to the prosecution.
Mr. Salam Khan has also contended that the story as enfolded by the evidence of witnesses in the case is inconsistent with the story of the occurrence as given in the F. I. R. and this inconsistency has affected the prosecution case.
In order to appreciate properly the evidence against the different convict. we think it desirable to put them under 3 distinct classes. We put the appellant Ebad and the 4 condemned prisoners, namely, Ayzuddin, Obedulla, Wahed and Ahad in group A'. We put 4 other condemned‑prisoners, namely, Fazu Kazi, Azhar Ali Molla, Golam Rabbani and Maziruddin Sardar under group B' and we put the rest of the convicts under group C'. We may state here that Mr. Abdus Salam Khan also accepted this grouping in course of his arguments.
So far as the charge of conspiracy under section 120‑B is concerned against all the convicts including she 8 condemned‑pri soners we may state at once that the evidence in support of their conviction under this charge is wholly inadequate. The evidence of conspiracy is furnished by 3 witnesses, namely, P. W. 6 Hayat Ali Sarkar, P. W. 7 Ardesh Ali Molla and P. W. 14 Azimuddin Mondal. The sun and substance of evidence of these 3 witnesses is that 2 days before the occurrence P. W. 6 saw convicts Gola m Rabbani, Azizur Rahman and Fazu and appellants Sakir Sardar, Manik, Aminuddin, Jadu Sk., Khoda Bux, Azhar Mondal, Azhar Molla, Munser Moridal and many others talking, and the witness heard the name of Dr. Salam and about money. P. W. 7 saw some of the aforesaid convicts coming out of convict Mazir Sarkar's house. On the night preceding the occurrence P. W. 14 saw convicts Munsor Mondal Mazir Sardar, Sakir Sardar Manik and Jadu on a culvert, near the house of the father of convict Azhar Molla, and heard some of these persons saying that it was impossible to live in the country without cutting the head of Dr. Salam. On query P. W. 14 was asked to go away and not to bother about this. None of these witnesses, appears to have reported about this matter to anybody contemporaneously although P. W. 14 now says that he reported the matter to Dr. Salam and the latter said that Allah was there. In the absence of any evidence of such corroboration we find it difficult to rely upon such vague evidence of' these 3 witnesses. It may be mentioned here that in spite of this evidence the Assessors unanimously found the appellants Sakir, Jadu, Amin and Manikullah not guilty of the charge under section 120‑B of the Pakistan Penal Code. We; therefore, find it unsafe to rely on these evidence for the purpose of maintaining the conviction of all the convicts under section 120‑B of the Pakistan Penal Code. We may further mention that the learned Deputy Legal Remem brances has frankly conceded that so far as appellants Sakir. Jadu, Aminuddin and Manikullah are concerned there is hardly any evidence against them and that with regard to the other convicts also it was difficult to press for their conviction under section 120‑B.
We now proceed to discuss the cases of the convicts put under group C'. The convicts under this group may be sub‑divided into 2 sub‑groups, namely, group 6 (1) wherein we put convicts Shakir, Jadu, Aminuddin and Manikulla, who have been charged only under section 120‑B, and group C (2) wherein we put appellants Azizur Rahman, Khoda Bux, Azhar Ali Molla and Munser Ali who have been charged both under section 120‑B and under section 302/34, P. P. C.
The cases of the convicts placed in group C (1) have been disposed of while dealing with the charge under section 120‑B against all the convicts. In addition, we may mention that the names of 3 of them namely, Sakiruddin, Aminuddin and Manikullah were never mentioned in the F.I.R.
There remains the convicts, namely, Azizur Rahman Khoda Bux, Azhar Ali and Munser Ali under group C (2). So far as the charge under section 120‑B is concerned it has been disposed of as mentioned already. In regard to the charge under section 302/34 we may state that save and except the extra judicial confessions of Ebad Wahed and Obedulla there is no evidence to connect them with the murder of Dr. Salam. the position, therefore, is that except the aforesaid confessions of co‑accused persons which were subsequently retracted there is no evidence against these four prisoners to implicate them in the offence of murder. The convictions and sentences of the 8 convicts under group C' therefore, cannot be sustained.
It is true that in his judicial confession condemned prisoner Ayzuddiu has mentioned the names of Azhar Ali Mondal and Munser Ali in connection with certain conspiracy ; but it may be pointed out that this confession was made for the first time on 2xh August 166, and that in none of the earlier confessions of Ebad, Wahed and Obedulla there is any mention of the conspiracy.
We now come to group B' which contains convicts Fazu Kazi, Azhar Ali Molla, Golam Rabbani and Munser Sardar. So far as these 4 prisoners are concerned the only evidence against them is given by P. W. 2 Esaruddin and P.W.3 Taseruddin. In addition they have been implicated in the confessions of four co‑accused persons. P. Ws. 2 and 3 had gone to Baneswar hat to purchase cattle. On their way back from the hat P.W. 2 halted at his father‑in‑law's house en route, and then both the witnesses were returning to their respective houses. On the way they met the aforesaid 4 prisoners at about 1 a.m. on 7th August 1966. The 2 witnesses saw the said 4 prisoners going away fast and also found their wearing apparel drenched. The witnesses also saw prisoner Fazu Kazi having a potla (bundle) in his hand. These persons were seen near Union Council's office going from east to west. Both P. Ws. 2 and 3 reported this matter to some of the witnesses for prosecution whom they met subsequently at Bhopapara close to Dayarampur Bazar. P. Ws. 1, 3, 5 and 9 among others appear to corroborate this story.
The defence, however, has seriously questioned the story of P. Ws. 2 and 3 visiting Baneswar hat for the purpose of purchasing cattle and their presence at Dayarampur Bazar or near about it in the early hours of 7th August 1966. In this connection Mr. Salam Khan has argued that if, in fact, P. Ws. 2 and 3 had given out such an important story it must have found mention in the F. I. R. which was lodged subsequently in the morning. Mr. Salam Khan has also drawn our attention to the omission of the name of prisoner Azhar Ali Molla in the F. I. R. By itself the evidence of P. Ws. 2 and 3 is not enough to sustain the conviction of these prisoners under section 302/34, P. P. C. Their evidence, merely is that they saw shortly after the occurrence, not far from the place of occurrence, these 4 prisoners with drenched clothes on going away at a quick pace and that one of them was seen carrying a bundle in his hand. This evidence alone, however, much suspicion it may cast upon these 4 prisoners, is wholly insufficient to sustain their conviction on a charge under section 302/34, P. P. C. It is true that all the 4 confessing convicts have implicated these 4 prisoners in the murder of Dr. Salam in one way or another but they being the statements of co‑accused are no evidence against the 4 prisoners although they may be taken into consideration for the purpose of lending assurance to any independent evidence, if any, which is sufficient by itself to sustain their conviction. As we have already noticed, however, the only independent evidence existing against them is not enough to sustain their conviction and con sequently the statements of the co‑accused against them are hardly of any value against them. It may also be mentioned here that the prosecution story that after the head had been severed it was handed over to some person who carried it away was never men tioned in the First Information Report. Besides the fact that no attempt was made either by the people or the police to trace the head throws considerable doubt on this part of the prosecution story. We therefore find that there is no evidence against these 4 prisoners to sustain the charge under section 302/34, P. P. C.
We finally come to the 5 prisoners put under group A' namely, appellant Ebad and the four condemned‑prisoners, Ayzuddin, Obedullah, Wahed Kazi and Ahad.
As regards these 5 prisoners there are the evidence of P. W. 1 Sachin who saw prisoner Ebad present at two places on the fateful day, namely, near Dr. Salam's dispensary just before the occurrence and near the mosque when the four condemned prisoners, Ayzuddin, Obedullah, Wahed and Ahad were dragging and taking away forcibly Dr. Salam towards the river ghat after having put a gamcha on his mouth. There is also the evidence of discovering of alamats at both places, namely, near the mosque and the river ghat. In addition 4 of the prisoners, namely, Ebad, Wahed, Obedullah and Ayzuddin, each of them has made a confession implicating himself as well as other co‑accused in the murder of Dr. Salam. Although P. W. 1 Sachin has been subjected to criticism in regard to his character by Mr. A. Salam Khan, we have hardly found anything against the witness to disbelieve him. In the first place he is a member of the minority community and has, therefore, no relationship with any party. ill the suggestions which might be taken as the basis for the existence of ill‑feeling between P. W. 1 and some of the convicts have been categorically denied, and there is no material in support of such suggestion. The suggestions were mainly directed towards establishing ill‑feeling between the witness and the convicts Golam Rabbani, Azizur Rahman, Ayzuddin, Ahmad, Faze Kazi and Wahed Kazi. Having regard to our findings above we are now mainly concerned with the suggestions in regard to prisoners Ayzuddin, Ahad and Wahed Kazi. No such suggestion has been given in regard to appellant Ebad and condemned‑prisoner Obedullah. As regards Ayzuddin the suggestion was that P. W. Sachin had ill‑feeling with the condemned‑prisoners Ayzuddin and Ahad in connection with the joint business in rice and dal and that the witness also had a quarrel with condemned‑prisoner Ahad in connection with the possession of the land of the uncle of the witness. Both the suggestions are baseless and have been categorically denied. Similarly the suggestion in regard to Wahed Kazi was that P. W. 1 had abducted. a girl and the condemned‑prisoners Wahed Kazi, Ahad and Fazu Kazi chastised him. This suggestion has also been denied. The witness has admitted that his son was with one chintaharan who had abducted a girl and a case was brought against both of them. The evidence of P. W. 1 appears to be straightforward and convincing and we do not find any reason to disbelieve his evidence. In fact Mr. Salam Khan himself found it difficult to impugn the credibility of this witness. The gist of the evidence of P. W. 1 is that he was with Dr. Salam till about 1. a. m. on the 7th August 1955 when the latter left for saying his prayers in the nearby mosque. The witness saw prisoner Ebad armed with a lathi near Dr. Salam's dispensary before the latter left to say his prayers and the witness again saw Ebad armed with a lathi near the mosque when Dr. Salam was being forcibly , dragged by the condemned‑prisoners Ayzuddin Obedulla, Wahed and Ahad. The witness also saw some other persons present in the jute field whom he could not recognise. The witness has said that it was a moon‑lit night, and the almanac fully supports him. P. W. 1 has further stated that he was present near the mosque with a lantern in his hand and the lantern was subsequently broken by one of the prisoners, namely, condemned‑prisoner Ahad. The witness also saw Dr. Salam being carried towards the river ghat by the aforesaid four persons, namely, Ayzuddin, Obedullah Wahed and Ahad. The presence of the witness having been noticed by the prisoners, two of them, namely, Wahed, Kaziand Ahad caught hold of the witness and it was with great difficulty that the witness managed to get himself released on furnishing an assurance that he would pot disclose what lie had seen to others. In course of iris struggle to get released sleaves of the witness's shirt were torn and this is supported by the production of the torn shirt Exh. 1 in the case. The broken hurricane lantern Exh. II and a broken Chimney Exh. III also support the evidence of P. W. 1. P. W. 1 also found the sandal (shoe) of Dr. Salam left behind near the mosque. Having given our anxious consideration to the evidence of P. W. 1 we hove no hesitation in believing the story of forcible abduction or Dr. Salam by the aforesaid five prisoners. The further evidence which may be considered along with the evidence of P. W. 1 at this stage, and which has hardly been disputed, is that Dr. Salam was never heard of or seen until the recovery of his headless body from the river 2 days after the occurrence. Coupled with these evidence are the clear evidence of the recovery of a pen and a handkerchief belonging to Dr. Salam, and of a letter addressed by him to a member of the Union Council asking him to support Dr. Salam at the river ghat in the morning of the 7th August only a few hours after the occurrence. These alamats were seized by the Investigating Officer by Exh. 4 (1). There is also the evidence of discovery of certain other alamats, namely, Dr. Salam's sandal and the broken hurricane lantern and the chimney, and also of the marks of struggle on the ground near the mosque t vide the evidence of the Investigating Officer P. W. 39). Although there is some discrepancy in regard to the time and place of seizure of the alamats said to have been found lying near the mosque we have no doubt that they were there and that they were actually seized as stated by the witnesses. The identity of Dr. Salam's body can hardly be disputed for it has been identified with reference to certain marks, namely, a cut mark near the knee and the condition of several fingers of his feet by a large number of witnesses including his near relations, namely, brothers, one of whom P. W. 35 Abdul Latif is the Principal of a College. The evidence furnished by P. W. 1. considered along with the recovery of Dr. Salam's body and the aforesaid alamats are themselves enough to implicate all these 5 persons in an offence under section 302/109, P. P. C. We have no reason to doubt that P. W. 1 actually saw a part of the occurrence, namely, the forcible abduction of Dr. Salam by the 4 condemned‑prisoners, Ayzuddin, Obedullab, Wahed and Ahad and the active assistance rendered to there by appellant Ebad by his presence with them having been armed with a lathi near the mosque when Dr. Salam was being forcibly dragged toward: the river. All these prisoners were also seen by P. W. 1 going towards the river with Dr. Salam. We, therefore, do not find any substance in Mr. Salam's contention when he said that none saw the occurrence.
However, in addition, we have the confession of each one of the 4 prisoners, namely, Ebad, Wahed, Obedullah and Ayzuddin implicating himself in the murder of Dr. Salam. We have elsewhere given in evtenso the confession of Ebad and we need only say here that the confessions of the other three prisoners, namely, Wahed, Obedullah and Ayzuddin are substantially the same with hardly any difference in material particulars. The condemned‑prisoner Ahad alone in this group has not made any confession.
Mr. Salam Khan has severely criticised the confessions. He has contended that the extra‑judicial confessions were never made. We have not only the evidence of P. W. 1 who has already been relied upon by us but also of a large number of other witnesses, against whom there is hardly any reason to disbelieve, who have consistently supported the prosecution story that each one of these 4 prisoners actually made a confession implicating himself in the murder of Dr. Salman. Furthermore, there is the judicial confession of prisoner Ayzuddin recorded by a 1st Class Magistrate, P. W. 25, whereby Ayzuddin has clearly implicated himself in the said crime. We, therefore, have no doubt whatsoever that as a matter of fact each of these 4 prisoners actually made an extra‑judicial confession. We are further strengthened in our belief in this respect by the fact that the condemned‑prisoners, Ayzuddin, Obedullab, Wahed and Ahad were searched for in the early hours of the 7th August 1964 shortly after the arrest of Ebad and that two of them, namely. Wahed and Obedullah were arrested, in consequence the same day and they were brought to P. W. 34 Masiruddin and other people gathered in Dayarampur Bazar. The two Chowkidars P. Ws. 37 and 38 have proved that they took into custody Obedullah, Wahed and Ebad in the early hours of the 7th August 1966. Furthermore a search was actually made in the river near the said river ghat for recovery of the body of Dr. Salam as is evident from the evidence of P. W. 5 Dhirendra Nath. These facts have been proved by a number of witnesses whom we see no reason to disbelieve. And all these happened before the F. I. R. was lodged. Mention of extra‑judicial confessions of at least 2 persons, namely, Obedullah and Wahed. have been made in the F. I. R. lodged on the very same day all early as 6 a. m.
Mr. Salam Khan has next challenged the voluntary character of the extra‑judicial confession made by the 4 prisoners, namely, Ebad, Wahed, Obedulah and Ayzuddin on the ground that P. Ws. 29 M. S. Islam who was then Assistant Surgeon of Natote Provincial Hospital had found certain injuries on Obedullah, Wahed and Ebad on the 8th August 1966. The suggestions to the witnesses in whose presence the extra‑judicial confessions were made by these 3 prisoners to the effect that the prisoners were beaten and somehow induced to make the confessions have been categorically denied, and we do not think that the mere fact that they had received certain injuries is enough to detract from the voluntary character of their confessions. P. Ws. 37 and 39, two Chowkidars, have stated in their evidence that these persons had tried to escape, and they were consequently caught and assaulted by the members of the public. It is not unlikely that these people were subjected to some assaults by the members of the public. Having regard to the stuff they are made of as disclosed in the evidence and their conduct we find it difficult to believe that they made those confessions as a result of beating or inducements.
Mr. Salam Khan has also contended that the extra judicial confessions of these 4 prisoners were not made in the manner the witnesses have stated. We have elsewhere set out in extenso the extra judicial confession of prisoner Ebedulla. The extra judicial confessions of the other 3 prisioners, namely, Wahed, Obedullah and Ayzuddin substantially proceed on the same line as Ebadulla's. The sum and substance of their confessions is that the 4 condemned‑prisoners Ayzuddin, Ebad, Wahed and Ahad forcibly caught and took Dr. Salam from the mosque to the river nearby, and after they had put Dr. Salam in the shallow water of the river condemned‑prisoner Wahed Kazi said a Khutba' (a prayer) and slaughtered Dr. Salam with a knife which Wahed had carried and severed the head of Dr. Salam. Wahed then washed the severed head in the water of the river and having folded it in the clothes of Dr. Salam handed it over to some of the prisoners who took it away. Thereafter condemned prisoner Wahed cut open the belly of Dr. Salam and threw his body into the river. It has also been stated that Ebad was present with a lathi at the mosque and at the river ghat at the time of the occurrence and thus rendered assistance to the co accused in abducting and murdering Dr. Salam. With slight variations about the number and the names of certain other persons not including these 5 prisoners the confessions are almost identical. Mr. Salam has argued that these 4 confessing‑prisoners might have said "Don't beat us any more. We have killed Dr. Salem". This is, however, a mere speculation and there is no material in support of it. On the contrary the evidence discloses that each one of these 4 prisoners had in fact made the con fession attributed to him and that as a result of Ebad's confession at that very moment people started searching for the condemned prisoners, Ayzuddin Obedullah, Walled and Ahad and in fact Wahed, Obedullah and Ebad were arrested and handed over first to the said Chowkidars and then to the Investigating Officer in the morning. We have no doubt whatsoever that the extra‑judicial confessions of Ebad, Wahed and Obedullah were made in the manner stated by the witnesses. We, therefore, find that each one of these four co‑prisoners, namely, Ebad, Obedullah, Wahed and Ayzuddin has implicated himself in the offence of murder in the confession made by him.
In Ayzuddin's judicial confession he has implicated himself although Mr. Salam has tried to argue that his judicial confession is not a confession inasmuch as he has made exculpatory state ments. The judicial confession of Ayzuddin appears at page 226 of the paper‑book and it is quoted in its entirety as follows:‑
"There was a meeting in the Baithakkhana' of Azizul Haque the present Chairman of the Union Council in the muddle part of last Sravan. In the meeting, Chairman Azizul Haque, Khoda Bukhsh, the then member of the Union Council and Azhar, Mozi, Wahed Kazi, Munser Mondal, Ahad, Fazlur Rahman including I myself, in all 13 persons were present. In that meeting, it was decided to finish Salam Doctor. In that meeting Wahed Kazi said that, if Salam Doctor could be caught, he was prepared to kill him with his own hand. I being a member of the party of those men, I was also called in that meeting.
On the night following Sunday . . . . (torn) stated that (illegible). 'there was a meeting in the house of Azhar that night. In that meeting, Chairman Azizul, Afser, Azhar, Munser Mondal, Moji, Ahad Rabbani, Wahed, Fazu Kazi, Ebad, Obedullah including I myself were present. It was decided in the meeting that Dr. Salam would be finished that very night. Thereafter these persons hid themselves in the Union Council Office at Dayarampur Hat'. And I stood in a place in the hat'. Wahed and Ahad took a dagger from home.
Salam Doctor went to say Namaj' in the mosque situated at Dayarampur Hat' at about 2 a.m. When Doctor entered into the mosque, at that time, Obedullah and Ahad wrapping a gamcha' in his neck threw him down and dragged him out trorn the mosque house. At that time, Sachin Sarkar was going by that place. Wahed caught hold of him and told him that he also would be finished but Sachin promised by oath that he would not disclose that fact to any one. Then he was left off: Thereafter Wahed Kazi kicked me twice and told shala' what are you doing here standing " Sala' catch him." I then went and caught hold of the leg of Doctor. Doctor could not make any sound as there was gamcha' in his neck. Ahad then called others from the office of the Union Council. Doctor was then carried to the river nearby and was held floated in the knee‑deep water. Obedullah, Ahad, Munser Mondal, Majid held Salam Doctor floated in the water. And Wahed Kazi slaughtered the Doctor with dagger and severed the head from the body. The cut head was washed in the water well and then it was wrapped with the fungi' and shirt of the doctor and it was at first given to Chairman Azizul. Azizul then handed it over to Fazu Kazi. Wahed Kazi then threw out the dead body in the current of the river. I found all these standing from the bank of the river. Thereafter, the other persons went away else where. Firstly I went to bazar and stood at one place. Thereafter seeing people I hid myself in a paddy land. Thereafter, due to fear of life, I had gone to many places and hid myself. At last when I was staying in the house of Moqsud of Kumilla village people arrested me and took me to Dayarampur and handed me over to the police. I have stated the occurrence to people also.
This is my statement. I have made the statement of my own accord and without the inducement of anybody. It has been read over to me. Then I have given my thumb‑impression thereto."
It will be noticed that prisoner Wahed has categorically stated that he caught hold of the leg of Dr. Salam and that the latter was then carried to the river nearby where he was slaughter ed and his head severed. The prisoner has admitted his presence at both the places, namely, at the mosque and at the river ghat and he also admitted that he subsequently bid himself in the paddy land and thereafter due to fear of life went to many place and hid himself and that finally he was arrested while he was in the house of Moqsud of Kumilla village. The prisoner also admitted in this confession that he stated about the occurrence to the people and this supports the evidence that he had earlier made an extra judicial confession. The statements contained in prisoner Ayzuddin's judicial confession are sufficient admission of his guilt. In the case of Pakala Narayana Swami v. Emperor (A I R 1939 P C 47) it has been observed by the Privy Council thus:‑
"In view of their Lordships' decision that the alleged state ment was inadmissible by reason of section 162, the appellant's contention that it was inadmissible as a confession under section 25, Evidence Act, becomes unnecessary. As the point was argued however and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships' view no statement that contains self‑exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if is true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms 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, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession."
We are, therefore, of the view that Ayzuddin has made a judicial confession admitting his guilt and that this confession, too, has been made voluntarily.
Since all the confessions whether extra‑judicial or judicial have been retracted in the sense that during their examination under section 342, Cr. P. C. before the Committing Court as well as before the learned Sessions Court the prisoners pleaded innocence, it is necessary for us to see whether the confessions have been corroborated in material particulars by other indepen dent evidence. In the first place there is the evidence of P. W. 1 Sachin which materially corroborates the confessions in regard to a part of the occurrence, namely, that these 5 prisoners were directly concerned in forcibly taking away Dr. Salam from the mosque towards the river closeby on the date of occurrence. The recovery of the alamats from the river ghat as well as the discovery of some alamats near the mosque also lend material support to a very important part of the confessional statements. The fact that prisoner Ebad was found concealed in the house of P. W. Meghnad shortly after the occurrence and the 4 condemned prisoners Ayzuddin, Obedullah, Wahed and Ahad were searched for about the same time, and the arrest of Ebad, Wahed and Obedullah in the same morning further support the truth of the statements contained in the confessions. Furthermore, the recovery of the body without the head offered material corrobora tion to the story contained in the confessional statements. It may be noticed that the manner of slaughtering Dr. Salam and severing his head and throwing off his headless body in the river and the disposal of the head in a particular manner were made known in their confession long before the body was actually found and the recovery of the body of Dr. Salam 2 days after the occurrence answering the description given in the confessions is a formidable corroboration of the confessions particularly the extra‑judicial ones. We, therefore, find that all the confessions extra judicial as well as judicial have been amply corroborated on material particulars by independent evidence of unimpeachable character.
Mr. Salam Khan has also contended that prosecution has built up the entire case against the prisoners on the extra judicial confession of Ebadullah and inasmuch as neither Ebadullah nor his confession finds any mention in the F. I. R. the entire story built up by the prosecution has no basis. We are unable to accept this contention. The F.I.R. was lodged by P. W. 10 Kazi Abdul Kuddus, nephew of deceased Dr. Salam, who was sent for by some of the witnesses and P. W. 10 arrived after Ebad had already been arrested. His evidence shows that as soon as he arrived P. W. Masir asked him among others to bring prisoners, Wahed, Ahad, Obedullah and Ayzuddin under arrest, and accordingly P. W. 10 along with some others left to get these persons. Although P. VV. 10 has admitted that Wahed and Ebad made confessions (vide page )3 line 17 of the Paper Book) it is extremely doubtful whether the witnesses actually heard the confession of Ebad. In any event the omission of the name of Ebad or of his confession in the F. I. R. does not affect the evidence of other witnesses who have clearly stated that Ebad was arrested shortly after the occurrence and that he made the extra‑judicial confession attributed to him. This fact has received support from the action taken by the people in asking for search and arrest of prisoners Ayzuddin, Qbedullah, Wahed and Ahad.
Mr. Salam Khan has also commented upon the non‑mention of the names of some of the prisoners in the F. I. R. and the inclusion of some therein who were subsequently not charge‑sheet ed even and also of the trial of some persons who were not mentioned in the F. I. R. This criticism, however, affects only prisoner Ebad, and for the reasons already stated we are not prepared to hold that Ebad had been falsely implicated in the case.
Mr. Salam Khan has contended that the prisoners have been implicated due to party factions hardly bears any scrutiny having regard to the fact that in Group A' no less than 4 persons have made confessions admitting their guilt. In addition there is also the independent evidence of P. W. 1 Sachin, who we have no reason to think was in any way involved in the alleged party factions if any.
Mr. Salam Khan's contention that the judicial confession of Ayzuddin is inconsistent with the other evidence is not tenable inasmuch as the broad and material story as given in the other evidence perfectly fits in with the material portion of the confession.
Likewise the contention of Mr. Salam Khan that inasmuch as there are some discrepancies in regard to the time and place where certain alamats were seized their seizure are of no con sequence to the prosecution is of no substance. The discrepancy, if any, relates only to the alamats claimed to have been seen near the mosque. It does not concern the alamats which are equally important and which were recovered from the river ghat. Even in regard to the alamats seen at the mosque there is reliable evidence of P. W. 1 corroborated by other witnesses that these alamats, namely, the broken hurricane lantern and chimney and the sandal of Dr. Salam had in fact been seen near the mosque.
We also do not find any substance in the contention of Mr. Salam Khan that the story of prosecution does not tally with the story as given in the first information report. We find that the story given in the F.I.R is substantially the one that has been made out in the case subsequently on evidence. Mr. Salam Khan's endeavour to show that the informant was not even aware of the death of Dr. Salam is fruitless because of the clear statements in the F. I. R. "Dr. Salam has been murdered and thrown into the river." The subsequent statements made towards the end of the F. I. R. in our opinion do not detract from the statements made earlier.
So far as the evidence against the individual person in Group A' is concerned the evidence against Ebad is the evidence of P. W. 1 and the extra‑judicial confession of Ebad implicating himself in the abduction of Dr. Salam and his presence at the time of murder. Ebad, as we have already said, had been seen by P. W. 1 near the dispensary of Dr. Salam shortly before the occurrence, and later also near the mosque armed with a lathi. Ebad was also seen among the persons who forcibly took away Dr. Salam to the river ghat. At the river ghat, according to his own confession, he was present there although he has not assigned to himself any other act except his presence at the scene of murder. His subsequent conduct in trying to conceal himself instead of reporting the matter to the people is another indication of his guilty conduct. All these sufficiently prove his complicity in the murder of Dr. Salam. In our opinion, however, the specific offence that has been made out against him is one under section 302/109, Pakistan Penal Code.
As regards the three condemned‑prisoners Wahed, Obedullah and Ayzuddin the evidence against them are similar to some extent and of similar description. There is the evidence of P. W. 1 and the confession of each one of these 3 prisoners implicating himself in the murder of Dr. Salam. In addition so far as Ayzuddin is concerned there is his judicial confession as well which contains sufficient admissions implicating himself in the said murder. Wahed Kazi has himself admitted that he had taken the leading part in killing Dr. Salam by slaughtering him with a knife and later severing his head and cutting open his belly and then throwing the headless body into the river.
We accordingly find that the prosecution has succeeded in proving the case against these 3 prisoners under section 302/34, Pakistan Penal Code.
As regards prisoner Ahad there is the evidence of P. W. 1 only against him and that is that he was one of the persons who were seen at the mosque forcibly dragging and taking away Dr. Salam towards the river. There is also the evidence of P. W. 13 Abdul Hossain Sarkar that prisoner Ahad had gone to call prisoner Wahed Kazi in the evening preceding the occurrence while the latter was engaged in teaching Arabic in a mosque. Another witness P. W. 12 had also stated that he saw at about the same time prisoner Wahed Kazi going in the company of prisoners Ayzuddin, Wahed Kazi and Obedullah from east to west towards Dayarampur Bazar. In addition there are certain other matters, namely, he has been implicated in the murder of Dr. Salam is the confessions of his co‑accused persons. Having regard to the evidence against Ahad we hold that an offence under section 302/109, Pakistan Penal Code has been proved against him.
In the facts and circumstances of the case we think that there is no scope for application of section 364, P. P. C. and accordingly the charge thereunder must fail in respect of condemned‑prisoners Kazi Abdul Wahed, Obedullah, Ayzuddin and Ahad Pramanik and appellant Ebad.
We accordingly convict condemned‑prisoner Ahad and appellant Ebad under section 302/ 109, P. P. C. and maintain the sentence of transportation for life passed upon the latter and reduce the sentence of death passed upon the former, namely, Abdul Ahad Pramanik to transportation for life. In altering the conviction of prisoner Ahad to one under section 302/109, P. P. C. and sentencing him thereunder to transportation for life with consequent reduction of the sentence of death originally imposed on him we have been influenced by the fact that the evidence against him has only proved that he was one of the persons who abetted the murder of Dr. Salam. The evidence does not show as to what part Ahad actually played in the murder of Dr. Salam except that he was among the persons who forcibly took him towards the river where the murder actually took place. The statements of co‑accused that Ahad was one of the persons who held Dr. Salam while he was being slaughtered can only be utilised to lend assurance to the aforesaid evidence against Ahad, and no snore. This is the reason why we have differentiated the case of Ahad from the other 3 condemned prisoners in Group A'. We, however, maintain the conviction of the other 3 condemned‑prisoners Ayzuddin Gain, Obedullah Sardar and Kazi Abdul Wahed alias Wahed Kazi under section 302/34, Pakistan Penal Code. No extenuating circumstance in favour of any one of these three prisoners has been placed before us nor have we found any such circumstance to enable us to reduce the sentence of death passed on them. The murder 8 has been committed in a very cruel fashion to satisfy a base motive. We, have, therefore, no alternative but to confirm the sentence of death passed upon each one of these 3 condemned‑prisoners.
In the result the Reference is accepted in regard only to three condemned‑prisoners, namely, Kazi Abdul Wahed alias Wahed Kazi, Obedullah, Sardar and Ayzuddin Gain and the sentence of death passed on each of them is confirmed and their appeals are dismissed. The Reference is rejected in respect of the remaining 5 condemned‑prisoners, and with the exception of Abdul Ahad Pramanik their appeals are allowed. The appeals of Abdul Ahad Premanik and Ebad Ali Pramanik are dismissed with the modifications mentioned above. The appeals of Fazu Kazi, alias Kazi Fazlur Rahman, Munshi Gholam Rabbani, Maziruddin Sardar, Azhar Ali Milla, Azizur Rahman, Khoda Bux Sardar, Munser Ali Mondal, Azhar Ali Mondal, Sadu Sheikh, Sakiruddin Sardar, Aminuddin Sardar and Manikuddin Sarkar alias Manikullah Sarkar are allowed, and their conviction and sentences are set aside and they are acquitted of the charges framed against them. We direct that the said twelve appellants be set at liberty forthwith if not wanted in connection with any other matter.
The learned Sessions Judge appears to have taken great pains in writing out his judgment. He is likely to do better as he gains more experience.
Order accordingly.
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