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Criminal Appeal No. 19 of 1962, decided on 8th July 1963.

Ss. 93 & 9‑Nazim‑ul- Hakumat (President of Jirga) competent to give final decision only in cases where Jirga had expressed opinion that accused was guilty of offence charged‑Jirga finding accused not guilty‑Award cannot be interfered with.

Basharatullah for Appellant.

S. H. Jafri for A: A. G. for Respondent.

Dates of hearing ; 2nd to 4th July 1963.

This is an appeal against the order dated the 12th of October 1962, of Sessions Judge, Kalat who upheld the order dated the 28th March 1962, of Ch. Khalil‑ur‑Rehman, Nazim, Mastung, with special powers under section 9 of the Kalat Criminal Procedure Code, whereby, differing with the opinion of the Provincial Jirga that the appellant was not guilty, the Nazim had convicted the appellant under section 85 of the Kalat Penal Code and sentenced him to seven years' rigorous imprisonment and a fine of Rs. 1,000 or one and a half years' rigorous imprisonment 'in default of payment of fine in addition to ordering the appellant to pay Rs. 2,720 by way of compensation in three half yearly instalments to the heirs of the deceased, with the further direction that the parties were to be bound over in the sum of Rs. 5,000 each for keeping the peace for three years.

2. The prosecution case is that Karim Bakhsh deceased had illicit intimacy with one Mst. Azmat Khatoon, a relation of Shah Bakhsh appellant. Mst. Azmat Khatoon was murdered and, besides Karim Bakhsh, deceased, Ali Murad, Malook, Rasoola, Ayub and Dur Muhammad the relation of Shah Bakhsh, appellant, were tried for her murder. The Nazim of Bgha acquitted Karim Bakhsh deceased, but convicted Ali Murad, Malook, Rasoola, Ayub and lour Muhammad and sentenced them to different terms of imprisonment, fine and payment of com pensation. The convicted accused in that case preferred an appeal in the Court of Sessions Judge which was to be heard at Mastung, but since the counsel for the accused‑appellants in that case was unable to appear on the date appointed, the hearing of the appeal was adjourned to some other day. It would seen that Karim Bakhsh deceased and his brother Muhammad Bakhsh (P. W. 6), had also gone to Mastung for watching the hearing of the appeal. Muhammad Bakhsh remained in Mastung, while Karim Bakhsh deceased went away to Quetta, from where the following day accompanied by Ghulam Haider (P. W. 4) his co villager, he proceeded by Rohri Passenger train to Lindsy Railway Station, from where they proceeded to their village Ghulam Muhammad. On their way to Lindsy Railway Station, Sohbat (P. W. 1) also became their fellow passenger, and they all three, namely Karim Bakhsh deceased and Ghulam Haider and Sohbat (P.VY's.) got down at Lindsy Railway Station. Ghulam Haider was accompanied by his wife and children and when he got down at Lindsy Railway Station, he was unable to get any transport for carrying him and his family to their destination. He, therefore, in company with Karim‑ Bakhsh deceased, set out on foot to Ghulam Muhammad, leaving his family behind, in order to fetch a bullock‑cart from Ghulam Muhammad for transporting his family to their village. They had gone but a distance of about a mile from Lindsy Railway Station when they heard the shout "beware and be a man" to the accompaniment of the report of a gun and saw three persons, one of them armed with a gun, the other who was Shah Bakhsh appellant armed with a kulhari and the third whose weapon could not be identified running towards Karim Bakhsh deceased who ran for his life on seeing them, but they over‑took him and started belaboring him with their weapons. They warned Ghulam Haider P. W. not to intervene as they meditated the murder of Karim Bakhsh on account of his adulterous relations. Ghulam Haider P. W., therefore, returned to Lindsy Railway Station. On the way, Sohbat P. W., who had succeeded in hiring a camel and was proceeding to Ghulam Muhammad on its back, met him and informed him about the occurrence. Sohbat P. W. proceeded towards Ghulam Muhammad and on the way saw the dead body of Karim Bakhsh. On reaching Ghulam Muhammad he informed the relations of the deceased about the occurrence. It is further alleged by the prosecution that Khaliq Dad (P. W. 2), who was on his way from a visit to Khanqah Mir Pahlwan Shah to Lindsy Railway Station had also seen the occurrence and had identified Shah Bakhsh appellant as one of the assailants of Karim Bakhsh deceased.

3. One Gohram lodged the report regarding the murder of Karim Bakhsh deceased with Naib‑Tehsildar, Balanari, on the 30th of November 1957. After some inquiries, the case eventually came up before Ch. Khalil‑ur‑Rehman, Nazim Mastung, with section 9 powers and he recorded the evidence of the prosecution witnesses Sohbat (P. W. 1), Khaliq Dad (P. W. 2), Arbab Hazoor Bakhsh (P. W. 3), Ghulam Haider (P. W. 4), Mir Gul Hassan Khan (P. W. 5), and Muhammad Bakhsh (P. W. 6), and the statement of the appellant and framed a charge under section 85 of the Kalat Penal Code against the appellant. After the framing of the charge, the Nazim recorded the statements of five witnesses of the appellant who deposed to the effect that on the day of the occurrence the appellant was in village Khara where he was engaged in cultivation of some land. After completing the recording of the evidence, the Nazim referred the case to a Provincial Jirga on the 24th of March 1962, and the Jirga expressed the opinion that they were unable to determine who the murderer was and that it could not be definitely said whether Shah Bakhsh had participated in the murder of the deceased. They, however, recommended that the parties should be bound down for keeping the peace for three years. After signing the award of the Jirga on the 25th of March 1962, the Nazim by his order dated the 28th of March 1962, disagreeing with the Jirga, convicted and sentenced the appellant as mentioned above.

4. Learned counsel for the appellant has assailed the orders of the Courts below on three‑fold grounds‑

(i) the Nazim‑ul‑Hukumat was not competent to record conviction of the appellant after the Jirga expressed an opinion that the appellant had not been proved to be guilty of, the murder of Karim Bakhsh deceased ;

(i) on merits, the identity of the appellant as the murderer of Karim Bakhsh had not been established ; and

(iii) in any case, the maximum punishment for the offence of murder could not have been awarded to the appellant, as at worst he was but an abettor.

With respect to his first contention, which the learned counsel urged before me as his principal point, the learned counsel took me through the various provisions of the Kalat Criminal Procedure Code and argued that there was no provision in this Code warranting the interference of the President of a Provincial Jirga in the shape of conviction of the accused who had been pro nounced to be not guilty by the Jirga. He urged that section 93 of the Kalat Criminal Procedure Code which related to trial by Jirga of a certain category of offences, including murder, had specifically laid down that it was only in cases where the Jirga bad expressed an opinion that the accused was guilty of an offence with which he was charged that the Magistrate with section 9 powers was competent to pronounce the final decision, which means that if the opinion of the Jirga be that the accused is guilty of the offence with which he is charged, the Nazim as the President of the Jirga can differ from that opinion and give his own decision.

5. Learned counsel for the State was unable to point out any provision in the Code which expressly provides for the Magistrate with section 9‑powers interfering with the award of the Jirga if it was to the effect that the accused was not proved to be guilty of the offence with which he had been charged. All that the learned counsel for the State could do was to point to section 74 of the Kalat Criminal Procedure Code which lays down that after the opinion of the Jirga had been recorded, the President of the Jirga has to ask the parties whether they accept the opinion of the Jirga or not, and if they both acquiesce in the opinion of the Jirga, the President of the Jirga will attest the award, and if one of the parties refuses to accept the award, he will record their objection. But this section does not say that the President thereafter has to give his own decision. It appears to me that if it were intended that the Magistrate with section 9 powers, the President of the Jirga, had the absolute and unqualified power to interfere with the award of the Jirga in cases enumerated, in section 93, it was unnecessary to specify in section 93 that in, cases where the opinion of the Jirga was that the accused was guilty, the Magistrate could interfere and give his own final decision, and the easiest thing for the drafters of the Code would have been to say that the Magistrate with section 9 powers (the President of the Jirga) would be competent to give his final decision irrespective of the fact whether the opinion of the Jirga was that the accused was or was not guilty. The very fact that the drafters of the Code had emphasised in section 93 that the Magistrates with section 9 powers was to give the final decision in cases where the Jirga had expressed an opinion that the guilt had been proved, to my mind indicates that where the Jirga had expressed a contrary opinion namely, that the guilt of the accused had not been established, the Magistrate with section 9 powers could not interfere with that opinion.

6. In the above view of the matter, it is unnecessary to examine the case on merits, but assuming that the Magistrate with section 9 powers had the power to interfere with the award of the Jirga even in cases where the Jirga had expressed an opinion that the guilt of the accused had not been proved, I do not find any case beyond all reasonable doubt established against the appellant. Five witnesses have been produced by the pro secution in support of its case. They are Sohbat (P. W. 1), Khaliq Dad (P. W. 2), Arbab Hazoor Bakhsh (P. W. 3), Ghulam Haider (P. W. 4), Mir Gul Hassan Khan (P. W. 5) and Muhammad Bakhsh (P. W. 6), it has already been mentioned while reproducing the substance of the prosecution case that Sohbat and Ghulam Haider P. Ws., have been described as having got down together at Lindsy Railway Station at about sunset time. There are such discrepancies and infirmities in the statements of these witnesses that it becomes doubtful if they had any knowledge of the things they were talking about.

7. While Sohbat P, W., would have us believe that Ghulam Haider and Karim Bakhsh had proceeded on foot to Ghulam Muhammad as they were unable to settle the fare with a camel driver, Ghulam Haider, P. W. states that he was unable to get any transport for himself and his family. Significantly enough, Sohbat makes no reference, in the statement recorded by the Nazim to the family of Ghulam Haider as having been with him. Nor does he mention that Ghulam Haider and Karim Bakhsh had set out on foot for Ghulam Muhammad for bringing a bullock‑cart for transporting the family of Ghulam Haider. On the other hand, from the statement of Sohbat P. W., it would appear that Ghulam Haider and Karim Bakhsh had set out on foot for reaching their destination, and not for coming back, as they had not been able to settle the fare. Furthermore, Ghulam Haider did not at all mention in his statement that Sohbat had got down at Lindsy Railway Station with him and that they had travelled together. He merely mentioned Sohbat as having met him on the way while lie (Ghulam Haider) was returning to the Lindsy Railway Station after the occurrence had taken place. This is not all. While Sohbat stated that when he came across Ghulam Haider, he was accompanied by Takri Shadi Khan and another person, and he found that Takri Shadi Khan remonstrating with Ghulam Haider for not having saved Karim Bakhsh. Ghulam Haider makes no reference to any such person as having been in his company when Sohbat met him on the way. Besides this Takri Shadi Khan has not appeared in the witness‑box.

8. Another significant circumstance which emerges from the evidence of the prosecution is the absence of all reference to the murder of the deceased in the report which was allegedly lodged by Gohram with the Naib‑Tehsildar of Balanari. It is alleged by Sohbat, he had reported to the relations of the deceased on reaching Ghulam Muhammad all about the occurrence as had been described to him by Ghulam Haider P. W., then the report by Gohram, who, incidentally has not been produced in the witness‑box, should have contained a reference to Shah Bakhsh appellant as one of the assailants of the deceased. The absence of all reference to any of the assailants of Karim Bakhsh deceased in the aforesaid report, shows that nobody was in a position to say definitely who the murderers of the deceased were up to the time the report was made and that Sohbat P. W., is wrong when he states that he had mentioned all that had been reported to him by Ghulam Haider. P. W., to the relations of the deceased in Ghulam Muhammad. It is further significant that Arbab Hazoor Bakhsh P. W., who claims to have visited the spot on hearing of the murder also does not mention that anybody had named the assailant or assailants of the deceased before he proceeded to the spot on the information regarding the murder. It is further noteworty that Ghulam Haider P. W. does not claim to have identified Shah Bakhsh appellant by his person. He merely stated that he had identified him by his voice and that the appellant was at a distance of about twenty or thirty paces from him when he had shouted to the deceased. Even if Ghulam Haider P. W. be accepted as having been present at the time of the occurrence, his identification of the appellant by voice would hardly be conclusive.

9. The lower appellate Court and the Magistrate with section 9 powers seem to me to have been unwarrantably impressed by the evidence of Khaliq Dad (P. W. 2). He stated that he was returning from a visit to the Khanqah Pir Pahlwan Shah and was on his way to Lindsy Railway Station when he hear the report of a gun and the sound of lathis and he saw a few persons belabouring the deceased, and that when he inquired of them as to why they were doing so, they told him to get away as they were killing Karim Bakhsh on account of his adulterous behaviour, and that he had identified one of these persons who had come up near the dead body to tell him to go away, as Shah Bakhsh accused present in Court. It is significant that this prosecution witness does not claim that he had identified Shah Bakhsh appellant, whom, it appears, he did not know before, in any identification parade. Mir Gul Hassan Khan P. W. has been produced by the prosecution to state that Khaliq Dad had identified the appellant as one of the murderers of the deceased in an identification parade held by the Naib‑Tehsildar, Balanari, in the presence of Mirza Nematullah, Arbab Hazoor Bakhsh and Arbab Muhammad Sharif. But curiously enough neither the Naib‑Tehsildar who conducted the identification parade nor any of the witnesses who have been named by Mir Gul Hassan Khan as the other witnesses of the identification parade have said anything about any such identification. Naib‑Tehsildar, Balanari has not come forward to prove any such identification proceedings, and Mirza Nematullah and Arbab Muhammad Sharif have also not been produced as witnesses. Significantly enough, Arbab Hazoor Bakhsh was produced as P. W. 3 but he said nothing about this identification parade. It is true that the appellant admitted that Khaliq Dad had identified him during an identification parade, but he did not say that he had been identified by Khaliq Dad as a murderer of Karim Bakhsh deceased. In the absence of any statement by Khaliq Dad P. W. that he had identified the appellant as the murderer of Karim Bakhsh deceased in an identification parade and in the absence of the Naib‑Tehsildar who allegedly conducted the identification parade from the witness‑box, I do not quite see how it can be definitely held on the uncorroborated word of Mir Gul Hassan Khan that Khaliq Dad had identified Shah Bakhsh appellant as one of the murderers of the deceased. It is further note‑worthy that according to the statement of Khaliq Dad P. W. he had heard the sound of the lathis when the deceased was being belaboured by his assailants. He does not at all make any reference to any of the assailants having used a kulhari while they were attacking the deceased. But from the statement of Arbab Hazoor Bakhsh it appears that all the injuries that were found on the dead body were kulhari injuries ; the attack had resulted in the feet of the deceased being cut off ;his face and nose bore kulhari marks ; and neck had also been almost cut off from the rest of the body and had retained its connection with the rest of the body by a mere strip‑skin. If Khaliq Dad had actually witnessed the occurrence and had seen it from a close enough quarter to determine the identity of any of the assailants, he could have failed to notice kulhuri or kulharis as their weapons. The learned Sessions Judge has referred to Ghulam Haider P. W., as having mentioned a kulhari as the weapon that Shah Bakhsh appellant had with him at the time of the assault. But I fail to understand how, when he was unable to identify the appellant by his appearance and figure, he was able to identify the weapon that the appellant carried. If the person of the appellant was unidentifiable, surely from the distance that intervened between this witness and the appellant the weapon that the appellant carried must have also been unidentifiable.

10. To return to the intrinsic merit of the evidence of Khaliq Dad P. W. Neither he mentions the presence of Ghulam Haider P. W., at the time of the occurrence, nor does Ghulam Haider mention his presence at that time. Surely, if both these persons had witnessed the occurrence when it was taking place, they should have seen each other also.

11. The result is that I, am not satisfied that the prosecu tion evidence is strong enough to fix the appellant with res ponsibility for the crime laid to his charge. Since I am not satisfied with the worth of the prosecution evidence, it is not necessary to refer to the defence evidence. Suffice it to say that in the light of my opinion regarding the worth of the prosecution evidence, the defence version that the appellant was not, or could not be present at the spot at the time of the occurrence, cannot be ruled out as altogether untenable.

12. As I do not feel satisfied as regards the soundness of the prosecution version, it is unnecessary for me to deal with the third contention of the learned counsel for the appellant.

13. In view of the above considerations, I accept the appeal of the appellant and, setting aside his conviction and sentence, acquit him. I, however, do not propose to interfere with the order of the Magistrate with section 9 powers as regards the parties being bound down for keeping the peace.

K. B. A. Appeal accepted.

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