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Criminal Revision No. 419 of 1962, decided on 15th October, 1962.
Revision against acquittal‑Delay of 8 months in filing petition by private party-- Not inordinate‑Conclusion reached by trial Judge not supported by balanced statement of relevant facts or by truly reasoned argument‑Retrial ordered‑High Court Rules and Orders (Lahore), Vol. V, Ch. I, Part A, sub part (b), Rule 1‑A.
Abdul Rashid and others v. The State P L D 1962 S C 249 rel.
Mir Muhammad Sheikh for Petitioner.
N. K. Jatoi for Respondents.
Khalid Ishaq and A. K. Sheikh for the State.
Dates of hearing : 18th, 19th, 20th and 24th September, 1962 ; 1st and 2nd October 1962.
This judgment will dispose of Criminal Revision Application No. 419 of 1962 filed on behalf of Shrimati Sawitri, widow of deceased Pershotamdas against the judgment of the Additional Sessions Judge, Sukkur, (Mr. Ghulam Hussain S. Ansari) dated 19th December, 1961, acquitting respondent Gopaldas of the murder of deceased Pershotamdas and holding that he had no hand in this murder. When admitting this application to a regular hearing we had directed that it should be heard alone with Confirmation Case No. 5 of 1962 concerning the death sentence imposed upon co‑accused Mitho in this same case by the same Judge and also along with Criminal Acquittal Appeal No. 224 of 1962 filed under instructions from the Govern ment of West Pakistan against the acquittal of co‑accused Abdul Jabbar in respect of offences under sections 393/397, 449 and 302 read with section 34, P. P. C. Thus, this revision application was heard along with the Confirmation Case and the Criminal Acquittal Appeal and this judgment should, therefore, be read along with the judgment t ust delivered by us in this Confirmation Case and Criminal Acquittal Appeal. In so far, therefore, as the facts of this matter have been fully set out by us in our judgment in the Confirmation Case and Criminal Acquittal Appeal, it become unnecessary to repeat them in this judgment.
2. In our order admitting this revision application to a regular hearing we had also stated that the admission was
"Subject to any objection to be raised by any party to the proceedings on the question of delay in filing this revision application."
Mr. N. K. Jatoi appearing on behalf of the respondent Gopaldas has mentioned certain dates which would disclose a delay of eight months and nine days in the presentation of this revision application. The judgment of the trial Court was delivered on 19‑12‑1961 and Criminal Acquittal Appeal No. 224/1962 against co‑accused Abdul Jabbar was filed on 12‑6‑1962. The present criminal revision application was filed on 28‑8‑1962 thereby disclosing a delay of eight months and nine days. This inordinate delay, argued Mr. Jatoi, should by itself be a sufficient reason for rejecting the present revision application. In support of this contention Mr. Jatoi referred us to certain rulings but, as these cases related to revisions against discharges, we did not consider them to be ' in point. Rule 1‑A of sub‑part (b) of Part A of Chapter I of Volume V of the Rules and Orders of the High Court of Judicature at Lahore provides that
"The Deputy Registrar will not receive any petition for revision of an order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the District, refusing to move the Provincial Government to appeal under section 41.7, Criminal Procedure Code."
Since the period of limitation for the filing of an acquittal appeal is six months, it seems to us unlikely that such certificate could be obtained earlier than six months after the order of acquittal. An applicant, thus, filing a revision application against an order of acquittal must wait for six months before he could do so and if, as in this case, a further delay of two months more occurs, it does not appear to us to be so gross as to require a rejection of such a criminal revision appli cation.
3. It is necessary for the purposes of the present revision application to have in mind clearly and distinctly the various pieces of evidence or circumstances appearing on the record of this case against the respondent Gopaldas. It will then be necessary to consider whether all these pieces of evidence or circumstances were present to the mind of the trial Judge and what value he has attached to such of them as were present to his mind. Finally, it will be necessary to consider whether all these pieces of evidence and circumstances were put to the respondent Gopaldas in the course of his examination under section 342, Cr. P. C. It is in the above order that we propose dealing with this matter.
4. We have found in all twelve circumstances of an incri minating character so far as the present respondent Gopaldas is concerned from our perusal of the record in this matter. They may be set out as under
(i) The first of these is that the co‑accused Mitho was his Munshi and the second accused Abdul Jabbar was his friend. Jashan Mal P. W. 11 mentioned an application Exh. 21 which was produced by Ali Murad P. W. 7, Serishtedar, and which he (Jashan Mal) had made to the Sub‑Judge and F. C. M.. Jacob abad, on 7-2‑1961. showing the close association between Gopaldas and the two co‑accused Mitho and Abdul Jabbar.
(ii) The second circumstance is that Gopaldas when leaving Jacobabad for Shikarpur on 11‑2‑1961 instructed his servant Lakhomal P. W. 12 that day to send Mitho and Jabbar to Shikarpur. As Lakhomal could not meet these two, Gopaldas returned to Jacobabad that evening and on the morning of the following day 12‑2‑1961 he left for Shikarpur again accompanied by Jabbar and Mitho asking Lakhomal to close the office.
(iii) The third circumstance is that Gopaldas and the two co‑accused Mitho and Jabbar were seen together by Ghulam Murtaza P. W. 3 proprietor of the Sind Zamindar Hotel at Lakhi Dar, Shikarpur, at 6‑45 p.m. on the evening of the incident in his hotel taking tea together. The bill was paid by respondent Gopaldas. This witness Ghulam Murtza was put to an identification test on 14‑2‑1961 the next day but one, at which in the presence of the Head Munshi and 3rd Class Magistrate, Shikarpur, Mr. Sahib Dino P. W. 4. he successfully picked out the two accused.
(iv) The fourth circumstance is that Gopaldas had visited Pershotamdas at 7 p.m. that same evening namely 12‑2‑1961 and on the pretext of its being late he induced deceased Pershotamdas to take tea with him outside his house in a public restaurant belonging to one Kanhaya Lal P. W. 9. The suggestion is that Gopaldas resorted to this trick in order to induce Pershotamdas to leave his home, appear in public and thus give Gopaldas an opportunity of showing him to his would be assailants.
(v) The fifth circumstance is that the same evening after Pershotamdas had been attacked and his wife and servant boy Wazir had been pushed by the assailants into a room which led into the verandah Shrimati Sawitri and the boy Wazir Ali from this verandah saw Gopaldas standing on the top step of the stair case leading to their apartment. Shrimati Sawitri there and then called out to Gopaldas for assistance and told him that dacoits were killing her husband ; but to these entreaties he turn ed a deaf ear and descending the steps walked out of the house.
(vi) The sixth circumstance is that Wazir Ali P. W. 8 was sent by Sawitri after Gopaldas to call him back. This servant met him in the street, told him of what had happened and begged of him to come to their assistance but Gopaldas went off towards the office of Mr. Sikandar Ali, Advocate.
(vii) The seventh circumstance consists of the two dying declarations made by deceased Pershotamdas to his wife Shrimati Sawitri while being taken from his house to the hospital on the evening of the incident and again the following morning in the hospital. On both these occasions Pershotam das informed his wife Sawitri that Gopaldas had got him murdered. Pershotamdas further added that he had indentified his two assailants as being the same persons who were talking to Gopaldas outside the hotel at Lakhi Gate and to whom Gopal das had shown him (Pershotamdas).
(viii) The eighth circumstance is to be found in the evidence of Khialdas P. W. 6 who was in attendance upon Pershotamdas while in hospital. It consists of the visit paid by Gopaldas to Pershotamdas in hospital the following morning, the accusa tions openly levelled by Pershotamdas against Gopaldas and of Gopaldas quietly going away instead of repudiating and denying these allegations. It also consists of Pershotamdas calling Gopaldas, of Khialdas going after Gopaldas and calling him and telling him Pershotamdas evaded him not but Gopaldas went away saying he was going to the Railway Station. It is said by Khialdas that as soon as Pershotamdas recognized the voice of Gopaldas he told him that he did not care for his friendship of ten years during which Pershotamdas had helped him financially every time and yet he (Gopaldas) had got Pershotamdas murdered.
(ix) The ninth circumstance is that when Chandumal P. W. 2 went to the Lakhi Dar Police Station to lodge his F. I. R. he saw Sabhaldas, retired Sub‑Inspector and father of Gopaldas and Chimandas, brother of Gopaldas and Prosecuting Sub Inspector of this very police station sitting at this police station.
(x) The tenth circumstance is the absconcion of Gopaldas from Shikarpur to Jacobabad and his arrest at Kohlpur a few stations away from Quetta on 16‑2‑1961 by A. S. I. P. Munawar Hussain P. W. 14.
(xi) The eleventh circumstance is that in the register of the Musafir Khana on Jinnah Road, Quetta, where respondent Gopaldas stayed from 14th to 16th February 1961, he mentioned his father's name as Kalyandas and not as Sabhaldas.
(xii) The twelfth circumstance is that in this very register Gopaldas had shown that he had come from Jacobabad and was returning to Jacobabad. Instead of going on 16‑2‑1961, the day A. S. I. P. Munawar Hussain arrives in Quetta in search of him, Gopaldas leaves this Musafir Khana for Kohlpur, a few miles away from Quetta. There is also the added circumstance so far as this register is concerned that Gopaldas omitted to sign it.
5. Of these twelve circumstances we observe that some of them appear to have escaped the attention of the trial Judge. Thus, circumstance No. VI of Wazir Ali the servant going after Gopaldas and entreating him in the street to come to the assistance of his master has not been mentioned by the trial Judge. The second dying declaration made by Pershotamdas to his wife Sawitri in hospital also does not appear to have been noticed in the judgment of the Sessions Judge. Again, the circumstance of Pershotamdas openly accusing Gopaldas in hospital the following morning of down right ingratitude, of getting him murdered and of Gopaldas remaining quiet and meekly slinking away without replying though called by Pershotamdas and again by Khialdas on behalf of Pershotamdas does not appear in the judgment of the lower Court. The ninth circumstance of Gopaldas being seen at Lakhi Dar Police Station with his brother Chimandas and his father Sabhaldas that same evening when Chandumal went there to record his F. I. R. has also escaped the attention of the trial Judge. In like manner, the last two circumstances Nos. XI and XII of Gopaldas showing his f4ther's name wrongly in the register of the Musafir Khans Exh. 43, also wrongly showing that he was returning to Jacob abad and his omission to sign this register appears to have escaped the attention of the trial Judge.
6. Nor are we satisfied with the reasons assigned by the trial Judge for rejecting such of these circumstances as have occurred to him and found place in his judgment. Our attention was invited in this connection to a very recent case of our Supreme Court in Abdul Rashid and others v. The State (P L D 1962 S C 249). This was also a case in which the High Court had accepted a revision against an acquittal and had remanded the case for further trial, in respect of offences under sections 392, 307, 324, 148 and 149, P. P. C. of which offence the five accused had been acquitted at the trial. Their Lordships of the Supreme Court upheld the order of the High Court stating that‑
"We are clearly of the opinion having regard to the nature of the treatment given by the trial Judge to the evidence in the case that the order of the High Court directing the retrial so that the evidence may be considered from a fair and impartial point of view is entirely correct."
Their Lordships further went on to remark and we may with great respect employ the same words when dealing with the judg ment of the trial Judge in this case so far as the respondent Gopaldas is concerned that‑
"We think that it is not going too far to say that there is scarcely a single conclusion reached by the trial Judge which is supported by a balanced statement of the relevant facts, or by a truly reasoned argument."
7. We also found that there are certain circumstances among the twelve mentioned above which were not put to the respondent Gopaldas in his examination under section 342, Cr. P. C. The two dying declarations made by Pershotamdas to his wife Sawitri when leaving his house for the hospital and again the following morning in the hospital, have not been put to respondent Gopal das by the trial Judge. Then the circumstance of the accusations openly made by the Pershotamdas to Gopaldas to his face in the hospital the following morning and Gopaldas's silence has not been put to him. Similarly, circumstances Nos. IX, XI and XII mentioned in the above paragraph as having escaped the attention of the trial Judge have also, in consequence, not been put to Gopaldas.
8. In view of all the above circumstances appearing on the record of this case against the respondent Gopaldas, the fact that some of them have not occurred to the trial Judge and, therefore, find no mention in his judgment and in consequence have not been put to the respondent in his examination under section 342, Cr. P. C., the fact that such of these circumstances as have occurred to the trial Judge have been dealt with by him inade quately and are unsupported by a balanced statement or reasoned argument, and above all the fact that the total or cumulative effect of these circumstances has not at all been weighed and assessed by the trial Judge, there is no alternative for us but to direct a retrial of responding Gopaldas for the murder of deceased Pershotamdas. We, have, in this judgment, scrupulously refrained from giving an expression to any opinion on the merits of the case for or against respondent Gopaldas and we would before parting with these papers issue the added caution to the Sessions Judge who is to try this case whoever he may be but not Mr. Ghulam Hussain S. Ansari that nothing that we have said in this order should be treated as binding on him and he should reach his own conclusion on the evidence led before him in this matter. The respondent No. 1 Gopaldas will surrender to his bail before Sessions Judge, Sukkur, on Saturday 20th October 1962, and it will then be for that Judge to decide for himself what action he should take with regard to the respondent.
K. B. A.
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