Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No. 84 of 1961, decided on 9th January 1963.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 14th October 1960, in Criminal Appeal No. 9 of 1960).
‑--Granted to informant, to examine case afresh "in view of certain feature appearing from the evidence‑(Murder case)‑(Acquittal appeal) Constitution of Pakistan (1956), Art. 160.
‑Accused concerned acquitted originally by Sessions Judge‑Revision against acquittal dismissed by High Court‑Supreme Court, at best, could only order "re‑trial"
(Criminal appeal)‑Acquittal of accused by High Court‑"Manifestly against weight of evidence" "involving miscarriage of justice"‑Acquittal set aside‑Respondents con victed.
‑ (Murder case)"Long time" having elapsed from date of trial"‑(Date of murder: 15‑4‑1959)‑(Appeal decided: 9‑1‑1963)‑(Accused acquitted by High Court)‑Supreme Court, accepting informant's appeal from acquittal, did not impose sentence of death.
Mahmud Ali Senior Advocate Supreme Court (Rafiq Ahmad Sheikh Advocate Supreme Court with him) instructed by S. Zahir Abbas Attorney for Appellant.
Iftikharul Haq Khan Advocate Supreme Court instructed by Ijaz Ali Attorney for the State.
Tassaddaque Hussain Senior Advocate Supreme Court (Aslam Riaz Hussain Advocate Supreme Court with him) instructed by Virasat Hussain Attorney for Respondents Nos. 1‑9.
Dates of hearing: 30th October and 1st November 1962.
‑--The nine respondents in this case were tried under sections 148, 323/149, 324/149, 436/149 and 302/149, P. P. C. by the learned Sessions Judge, Sialkot. He acquitted six of the respondents and convicted Taj Din, Shafi and Muhammad Ramzan only, under sections 148, 324/ 149 and 302/149, P. P. C. On the first charge they were awarded two years' rigorous imprisonment each, on the second, one year's rigorous imprisonment each, and on the murder charge, they were sentenced to death. On appeal, the High Court of West Pakistan set aside their convictions and sentences and acquitted them of the above charges. Special leave to appeal was granted to Sultan Khan who was the informant in this case, as it was felt that in view of certain features appearing from the evidence, the case required to be examined afresh in relation to all the charges which included a charge of arson. While allowing the appeal of the three convicted men, the High Court had also dismissed a petition by Sultan Khan, seeking revision of the Sessions Judge's order of acquittal in regard to five out of the six acquitted accused.
Ramzan and Shafi, respondents, are the sons of Nawab respondent, and Taj Din respondent is a brother of Nawab. The remaining respondents are connected inter se, but apparently not related to the first group. They are, however, all Arains, who were tenants of lands belonging to Datt Brahmans of village Khanwali, now evacuees. The father of Muhammad Usman Khan who was murdered in the present case, had been allotted a considerable area of land in this village but the local tenants refused to give him either batai or to attorn to him as landlord. There was litigation between the parties and proceedings under section 107, Criminal Procedure Code, were also started by the police at the instance of Muhammad Usman Khan, against several of the Arain cultivators including the accused persons. M. Usman Khan was managing the whole property on behalf of his father who died prior to the occurrence, leav ing M. Usman Khan and other heirs, as owners of the allotted land. It is stated that some of the Arains had later been persuaded to acknowledge M. Usman Khan as the landlord but that Nawab and his sons and their uncle, Taj Din, had all along been adamant in their opposition to him. Nawab was temporary Lambardar in this village, but he was replaced by M. Usman Khan, deceased, some two years prior to the latter's murder. The relations between the parties had thus been considerably strained.
To help him in managing the allotted lands, M. Usman Khan, deceased, had appointed Sultan Khan (P. W. 14) and Sher Muhammad (P. W. 15) as his karindas. About a fortnight before he was killed, he is said to have left for Sargodha where he intended to spend the Eid‑ul‑Fitr day. Before leaving, he had warned Nawab accused, not to cut the sugar‑cane crop standing in his field, till his return, so that there could be fair division of the produce between the landlord and the tenants. This warning was not heeded by Nawab and his sons, who cut the crop and stacked the sugar‑canes in the haveli of their uncle, Taj Din, on the morning of the 15th April 1959. Taj Din has a sugar‑cane crushing machine installed in that haveli. The same day, between 10 and 11 a.m., the deceased detrained at Darbar Sahib Kartarpur Railway Station and was seen coming there from to his village, Khanwali, which is at a distance of about two miles, by Sultan Khan, Sher Muhammad and Muhammad Hussain, P. Ws., who were sitting at the flour‑mill owned by the last named P. W's. father, Fazal Din, in the village. The deceased was accompanied by his servant, Roshan, who was carrying a suit‑case, and Mst. Surayya Begum (P. W. 17), his mistress, on horse‑back, the horse having been hired from one, Nawab Teli, who was also following his animal. While passing through the village, the deceased stopped near Taj Din's haveli, where he noticed the sugar‑cane crop stacked and began protesting to the accused persons who, except for Nawab, were all present there, against their failure to follow his instructions. Meanwhile, Mst. Surayya Begum, Roshan and Nawab proceeded to his house. The accused, it is stated, defied the deceased and told him that they owed him nothing. They then attacked him with their weapons, Shafi and Mehnga being armed with swords, Taj Din, Ramzan and Karam Din Kamman, with spears, Siddiq and Muahammad Rafiq Bagga, with drats, and Sharif with a sua. The deceased received severe injuries on both his lands and he, therefore, ran from the spot, partly wading through a pond which was closely, on the way to his house. At that moment, the accused did not immediately follow him and he gained the safety of his house. The door of the house was closed from inside after he had entered it. The eight accused who were in the haveli, then went up to the house of Muhammad Usman Khan. They effected entrance into his courtyard by pulling out a window in the outer wall. The deceased was in the pasar of his house and the accused persons tried to force open the door of that room. Mehnga, it is said, set fire to the partially‑dismantled roof of an adjoining kothri, in order to force Usman Khan to come out. Meanwhile, some of the other accused pulled out iron bars from a window in the pasar and effected entry through it. They then opened the door and allowed the other accused to come in. Usman Khan was murdered in that room. They then removed his body to the dismantled kothri, and from there, it was thrown into the lane outside. Taj Din, while leaving, removed the revolver, P. 4, which was hanging by a string on a peg in the room, and he also took out some spent cartridges from the deceased's bandolier. Ghani Khan P. W, a servant who had tried to rescue his master, had also been injured by the culprits. He and Surayya Begum came out of that room after the accused left. Shafi and Ramzan dragged the dead body of Usman Khan, by the legs, to the haveli of Taj Din, where it was placed near the Sugar‑cane Press. Taj also deposited the revolver, P. 4, close to the dead body. The remaining six accused had also accom panied Shafi and Ramzan to the haveli.
The prosecution alleged that the accused then began con certing together to make up a defence. After consultation, they killed Jawahir, father of Taj Din, an old man of 80 or 85, by hitting him a severe blow on the head with the blunt side of a drat. One accused even tried to strangulate him when he fell down and gave him a few kicks in the ribs. They also inflicted some injuries on Taj, Shafi and Ramzan, in order to fabricate a story of self defence. Jawahir's dead body was found lying in the lane at a distance of about 60 or 70 ft. from the haveli of Taj Din, when the Head‑Constable arrived to take up the investi gation.
The report of the occurrence was lodged by Sultan Khan (P. W. 14) with the Head‑Constable at 2 p.m., at village Ghaka where this police officer happened to be, in connection with the investigation of another case. This village was about three miles from the spot. The formal F. I. R. was recorded at police station Shahgharib, some five miles away, at 4 p.m., on the basis of the statement of Sultan Khan recorded by the Head‑Constable.
The medical evidence shows there were numerous injuries on the body of the deceased Muhammad Usman Khan, which were categorized under 31 heads by the doctor who per formed the autopsy on his dead body. They included incised wounds, contused wounds, a stab wound in the abdomen as well as contusion marks and abrasions. Some injuries listed by the doctor were multiple in character. It is possible that some of the incised injuries of small dimensions were the result of spear blows. There is no doubt that the deceased was done to death in a merciless manner. It is also pertinent to remark that the doctor found the face of the deceased to be charred, full of blood and distorted due to injuries.
Abdul Ghani Khan (P. W. 18) was also examined by the doctor on the 16th of April 1959, at 8 p.m. and found to bear an incised wound, 2" x ", skin deep, on the back of the right forearm and an abrasion, " x ", on the front of the left shoulder. The injuries were simple in character. Another person, Sardar, son of Ditt, was examined on the 17th April 1959, at 5‑30 p.m. and five injuries were found on his person by the doctor. They consisted of three contused wounds on the head region, an abrasion and a contusion mark on the back. All the injuries were simple in character.
From the side of the accused, Muhammad Ramzan, Taj Din and Muhammad Shafi had injuries on their persons. Muhammad Ramzan had six injuries out of which an incised wound on the front part of the head, 2 x , bone deep, was described as grievous, because there was a partial cut of the skull bone underneath. Apparently the injury was not very serious. The rest of the injuries consisted of two contused wounds, an incised wound and two abrasions, one of which was located on the right knee. They were all simple in character. Taj Din had an incised wound on his back and an abrasion on the outer part of his left shoulder. These were simple injuries. Muhammad Shafi had an incised wound on the left side of his chest and a super ficial linear scratch, 3 " long, horizontal, on the outer part of the left side of his chest, in continuation of his incised wound. Both the injuries were simple in nature.
Jawahir Din, deceased, had evidently died as the result of a contused wound 4 x bone deep, on the left side of his head, under which the skull was fractured and the pieces of bone mere stuck in the brain. The doctor stated that many fractures radiated from the depressed fracture of thy left parietal bone in all directions towards the frontal and temporal bones. He was n old man of 80 or, 85. There were also three abrasions, two on his neck and one on his right chin, which were simple in character. Moreover, his 4th, 5th and 6th ribs were found fractured, but these, according, to the doctor, were‑‑post‑mortem injuries.
In support of the prosecution story, eight eye‑witnesses were examined. They fall into three groups. P. W. 14, Sultan Khan, the informant, P. W. 15, Sher Muhammad Arain and P. W. 16 Muhammad Hussain, Lohar, professed to have been present at the flour‑mill of the last‑named, and to have seen the deceased coming from the side of the Railway Station to the village. They deposed to the whole occurrence from that time onwards. Sultan, while giving the F. I. R., had also tried to make out that he was a witness to the killing of the deceased, Jawahir Din, and the injuries inflicted by friendly hands, on the persons of Shafi, Ramzan and Taj Din, accused. In Court, however, he varied this version by saying that he only heard the accused conspiring to manufacture a defence, that he went to fetch a mare in order to go to the police‑station, and that when he was passing through the lane with the mare, he saw the dead body of Jawahir Din lying there and noticed that these three accused persons were bleeding from their injuries. Sher Muhammad and Muhammad Hussain, however, did not say anything about this part of the prosecution story. They stated that they had gone away after the accused persons had dragged away the dead body of Muhammad Usman Khan to their haveli.
The second group of witnesses is comprised of Mst. Surayya Begum (P. W. 17) and Abdul Ghani Pathan (P. W. 18). They were admittedly present in the house of the deceased where he is said to have been killed. The former was apparently the mistress of the deceased and Abdul Ghani was his servant. They only deposed to what happened inside the house of Muhammad Usman Khan. Out of them, Abdul Ghani had himself been injured.
The third group of prosecution witnesses is comprised of Sardar Arain (P. W. 19), Ilam Din (P. W. 20) and Allah Rakha (P. W. 21). Their story is that they had been attracted by the alarm raised and had gone first to the haveli of Taj Din and then to the house of Muhammad Usman Khan when it was raided by the accused party. They saw the whole incident from start to finish, including the episode of the killing of Jawahir Din and the infliction of injuries on three of the accused, by their own men. They, moreover, alleged that they had been called to a meeting of the villagers by Nawab accused, some fourteen days earlier, at which Nawab had tried to persuade them and others, to join in the murder of Muhammad Usman Khan. The witnesses had declined to fall in with his wishes and they were then enjoined to keep the matter a secret.
The remaining witnesses were either police officers or the Patwari and some formal witnesses. The Head‑Constable, Muhammad Khalil Shah, found the dead body of Muhammad Usman Khan lying inside the haveli of Taj Din, accused. He recovered the revolver, P. 4, containing three empty cartridges, P. 5 to P. 7, and one missed cartridge, P. 7/1, in its chambers, from near the dead body. He also took possession of blood‑stained earth from that place. Muhammad Ramzan, Muhammad Shafi and Taj Din were found lying by him, in injured condition, on separate cots, in that haveli. He prepared their injury statements. He then arranged for the dead bodies of Usman Khan and Jawahir, deceased, for post‑mortem examination, and the three injured accused were also sent to the Civil Hospital, Narowal, for medical examination. The dead body of Jawahir, as already mentioned, had been picked up from the lane, at a good distance from the haveli of Taj Din.
The Head‑Constable then proceeded to the house of the deceased. He took possession of blood‑stained earth from the pasar of that house. He also scraped some blood‑stained earth from the northern wall of that pasar. A blood‑stained and burnt charpoy, P. 10, a shutter of the door of the pasar, P. 13, with bloodstains on it, a blood‑stained suit‑case, P. 11, a lantern, P. 12, similarly stained, and a black pair of trousers, P. 15, soaked with blood and mud, were also recovered from that house. A bandolier, P. 16, containing 18 live cartridges was in addition taken into possession from there. The bandolier was partly burnt. When the Head‑Constable had arrived at the scene of occurrence, the house of the deceased was seen to be on fire. Arain residents of the village were found to‑.have abandoned their houses. He, therefore, called some persons from a neigh bouring village and got the fire extinguished.
The Sub‑Inspector, Muhammad Tufail Khan, (P. W. 27) took up the investigation on the 16th April 1959, at 6‑30 p.m. The investigation was partly supervised by Muhammad Hussain, District Inspector, Shakargarh, (P. W. 11). The Sub‑Inspector arranged for a photographer to take photographs of certain parts of the house of the deceased. He also took into possession two shutters from the door of the middle kothri of the deceased's house, one shutter from the door of the western kothri and another shutter from the outer door of Usman Khan deceased's house. The shutter taken from the western kothri door had stains of blood on it. This was done on the 20th of April 1959, and on that very day, he also took possession of sugar‑canes which lay scattered in the haveli of Taj Din, and on the way from that place to the deceased's house.
On a search of Bagga accused's house, a blood‑stained drat is said to have been recovered. Bagga and Siddiq had been arrested on the 23rd of April 1959. On the 30th of April 1959, Muhammad Ramzan, Taj Din, Muhammad Shafi, Muhammad Sharif and Muhammad Siddiq are alleged to have produced the spears, P. 1 and P. 2, the sword, P. 22, the dang affixed with a sua, P. 3 and drat, P. 21, respectively, after taking them .out of the village pond.
Mehnga, Karam Din Kamma and Muhammad Sharif, accused, had been remanded to judicial custody on the 19th of April 1959, under the orders of a Magistrate. Muhammad Rafiq Bagga and Muhammad Siddiq were similarly consigned to the judicial lock‑up by an order of the Magistrate dated the 24th April 1959. These persons had been warned that they would be subjected to an identification parade and therefore were asked to take necessary precautions to conceal their faces.
Mr. Anwar Latif, Magistrate, held an identification parade in the District Jail, Sialkot, on the 27th April 1959. Mst. Surayya Begum correctly picked out Rafiq Bagga, Muhammad Siddiq and Karam Din Kamma. At the parade she also wrongly pointed out' to one Muhammad Ashiq as one of the culprits but when this was pointed out to her by the Magistrate she said that she was not feeling well and was confused. She was allowed to rest for four minutes and then she correctly picked out Sharif as one of the assailants of the deceased.
The defence version was given by Taj Din accused in two statements; one made before the Committing Magistrate and the other in the Sessions Court. The latter is a mere detailed version and may be reproduced in extenso. This is what he said :‑
"I was working at my sugar‑cane crusher when Usman Khan deceased, Abdul Ghani, P. W. Sardar, son of Ditt, Roshan and Nazir servants of the deceased along with their 15/16 party men forcibly removed our sugar‑cane. My father Jawahir (deceased) objected to it and was hit by Abdul Ghani, P. W. with a drat from its blunt side on his head and the deceased fell down. I, Shafi and Ramzan raised alarm on which Muhammad Usman Khan deceased began to fire revolver P. 4.
The two fires from the said revolver did not bit any body, but the third one hit danda D.1 which was in my hand. The fourth fire from the revolver missed and I and my companions took courage to defend ourselves when the other companions of Muhammad Usman Khan deceased began to hit us. Our boys, Inayat and Iqbal, etc., also joined us and there was a fight. In that fight Usman Khan and Sardar, son of Ditt and Ghani, P. W. received injuries while on our side I, Shafi and Ramzan received the injuries. The fight took place inside our haveli where we inflicted the injuries in self‑defence."
The other accused also adopted this version.
It is thus clear that the venue of the whole occurrence was placed by the accused in Taj Din's haveli. No evidence was called in defence to substantiate this story.
The learned trial Judge thought that the two divergent versions, one sponsored by the prosecution and the other by the defence, were "correct only to a certain extent". He recorded his findings in these words :‑
"* * * there had been two incidents in the afternoon of 15th April 1959. In the first occurrence Jawahir, father of Taj Din and Nawab accused was killed by the party-men of Usman Khan. A little after that, the accused party accom panied by many others raided the house of Usman Khan, set fire to it and when Usman Khan opened the door of his pasar in which he was present due to approaching fire, the culprits went into the pasar and was dragged to the haveli of Taj Din, who also brought revolver P. 4 containing empties P. 5 to P. 7 and missed cartridge P. 7/1 from the house of the deceased and the body and the revolver were placed in the haveli of this accused. I am of firm view that Usman Khan was not attacked in the beginning just outside the haveli of Taj Din by the accused and did not receive some injuries there as alleged by the prosecution. The story of his jumping into the pond and from there escaping to his house is also a myth."
The learned Judge was prepared to accept that on the fateful day the trouble arose over the cutting of sugar‑cane crop sown by Taj Din accused in field No. 766/318/1 Min. which had been allotted to Roshan Khan. He, however, doubted whether Usman Khan had arrived in the village just before he was killed. He surmised that the deceased was already in the village and coming to know that Taj Din had cut the sugar‑cane and brought it to his haveli, he sent his party-men to remove the sugar‑cane from there to his house. He pointed out that if the deceased himself had gone to the haveli of the accused, he ought to have fully loaded his revolver which was a 6‑chambered weapon. However only four cartridges were found in the chamber. He commented on the fact that no bullet or lead piece was recovered from the haveli of Taj Din, and he, therefore, discounted the defence allegation that the deceased had fired four shots with his revolver at his adversaries. The danda, D.1. had not been produced before the police by the accused but was for the first time shown in the committing Magistrate's Court. Even if Muhammad Tufail Khan, S. I. was not well‑disposed towards the accused, as they suggested, they could have brought their own version to the notice of the higher authorities through the District Inspector. A piece of lead which was exhibited in Court along with the danda, was not, according to the learned Judge, proved to be part of a bullet. His reconstruction of the affair was that the partymen of Usman Khan, when they tried to take away the sugar‑cane from Taj Din's haveli, were not effectively resisted and that Jawahir Din seemed to have followed them to the place where his dead body was found and that he was killed there by the men of Usman Khan when he tried to protest. He further found that the finding of the dead body of Jawahir Din in the lane was inconsistent with the defence version and that Usman Khan must have been killed in his own house. The charred face of the deceased, the arson at his house and the presence of blood‑stains on several articles there, as well as the state of the windows and doors, were strong circumstances supporting that inference. He considered it unlikely that if Usman Khan had been first attacked close to the haveli of Taj Din by several armed men, he could have escaped with his injured hands by wading through the pond.
Regarding the conspiracy to kill the deceased, said to have been hatched by Nawab accused a fortnight earlier, the learned Judge opined that the testimony of Sardar, Ilam Din and Allah Rakha, P. Ws. on that point was entirely untrustworthy. These witnesses had been examined by the police five days after the murder. His estimate of the evidence of the other P. Ws. in the case was that they could not be described as "independent". Sultan Khan and Sher Muhammad, he pointed out, were karindas of the deceased, Abdul Ghani was his servant and Muhammad Hussain was cited as a prosecution witness in proceedings under section 107, Criminal Procedure Code, initiated by the police at the instance of the deceased, against the accused and other Arains of the village. Mst. Surayya Begum had long association with the deceased. In his opinion, therefore,, none of them could be described as a disinterested witness, and consequently, he sought for corroboration of their evidence before acting on it. This corroboration he found against Shafi, Ramzan and Taj Din, accused, in the presence of injuries on their persons and the evidence of motive. Taj Din is the son of Jawahir Din deceased and Shafi and Ramzan are his grand‑sons, and the learned Judge has added the guess that they had joined other Arains and attacked the deceased in his house which they set on fire, in order to retaliate for the murder of Jawahir Din. These three accused had also, according to the learned Judge, sustained injuries in the course of the attack in Usman Khan's house where some sort of resistance was put up by Sultan Khan, Sher Muhammad and Abdul Ghani, P. Ws.
The recovery of the drat, P. 21, from the house of Bagga was held to be not proved satisfactorily. The learned Judge also doubted the genuineness of the recoveries of the other weapons at the instance of Taj Din, Shafi, Ramzan, Muhammad, Siddiq and Sharif, from the village pond.
As an upshot of the whole discussion, the learned Judge convicted only the three injured accused and gave the benefit of the doubt to the others.
The High Court agreed with the trial Judge that none of the alleged eyewitnesses examined by the prosecution could be des cribed as independent. In this connection the learned Judges seem to have assumed that Muhammad Hussain, P. W. was responsible for starting proceedings under section 107, Criminal Procedure Code, against the present accused and other tenants of Khanwali. This is plainly incorrect. Muhammad Hussain was only a witness cited by the police in support of the complaint under section 107, Criminal Procedure Code, as he was with the Sub‑Inspector, in whose presence, the persons complained against, had acted in a manner to cause apprehension of breach of the peace. Muhammad Hussain is a Lohar and apparently nothing has been brought out in his cross‑examination, which could suffice to discredit him. The remark of the learned Judges of the High Court that the witnesses were also inimical to the accused is not based on any evidence on the record. Some of the witnesses, as has been mentioned above, could be said to be connected with the deceased but they had no independent grudge against the accused persons. The learned Judges further found themselves at one with the learned trial Judge in holding that it was not possible to accept the prosecution story as it stood. Their approach to the case is revealed by their observation that "the version of how Jawahir met his death is so far‑fetched as to defy belief, and the failure of the witnesses to give a reasonable explanation of this circumstance destroys the very basis of the case". With all respect, this is putting it too high. The learned Judge went on to criticize the prosecution story as developed in Court, in comparison with the recitals in the F. I. R. In the first report, they pointed out, there was no mention of the allegation that the accused had forced their way into the deceased's pasar by pulling out the bars of a window. In that document the recital of facts led to the inference that the deceased was forced to open the door of the pasar when the roof of the disused kothri was set on fire by Mehnga. This discrepancy in the learned Judges' opinion was "too serious to be overlooked". It seems to us that this was a mere matter of detail. They also thought that the allegation that when the deceased arrived at his house after having been attacked outside Taj Din's haveli, his clothes were changed by Mst. Surayya Begum and Abdul Ghani, P. Ws., was a highly improbable feature of the prosecution case. They criticized this as a "senseless proceeding" and expressed the opinion that the story had been introduced in order to explain why the clothes the deceased was found to be wearing when his body was recovered, were not those described in the first information report. The learned Judges thought that if he had changed his clothes, it would strengthen the conclusion that he reached his house safely without being attacked on the way. The learned Judges omitted to notice that a black pair of trousers was found from the house of the deceased, smeared with blood and mud. The deceased was said to have been wearing black pants according to the F. I. R., but when the dead body was found in Taj Din's haveli, his legs were covered by corduroy trousers of a different colour. With all respect for the opinion of the learned Judges of the High Court, we consider that the finding of a blood‑stained black pair of trousers in the house, supports the prosecution allegation that the deceased had been attacked while on the way to his house and this necessitated a change of clothes when he reached there.
The finding of the bandolier of the deceased in the house, was also taken as tending to the conclusion reached by the learned Judges. We confess we are unable to follow this line of reasoning. Mst. Surayya Begum's statement was to the effect that the deceased had passed on the bandolier to her when coming towards the house as it was a hot day and we find nothing improbable in this allegation.
Finally, the learned Judges observed as follows
"In our opinion the learned Sessions Judge is, in all probability, correct in holding that on learning of the cutting of the sugar‑cane by the accused's party against his instructions the deceased took steps to recover the cane, and it is further possible that his assumption that the deceased was killed at his pasar is also justified, but the fact remains that if Jawahir met his death as a result of an attack at the hands of the deceased's henchmen the story put forward by the prosecution witnesses at the trial is completely false."
With respect, it seems to us that this finding involves an intrinsic inconsistency. If the learned Judges were willing to accept that the deceased was killed in his own house and not at the haveli of the accused as the latter alleged, it could not be said that the story put forward by the prosecution witnesses at the trial was "completely false".
The presence of injuries on the persons of Ramzan, Shafi and Taj Din was not considered to be a corroborative factor establishing their participation in the attack on the deceased, by the learned Judges. In this connection the learned Judges remarked that the prosecution witnesses had themselves given no explanation as to how these accused sustained their injuries and that, on the contrary, there was a clear implication that no blows were inflicted on them by any of the deceased's companions. In the result the learned Judges found it impossible to maintain the conviction of any of the accused persons.
We feel constrained to point out that both the learned trial Judge and the learned Judges of the High Court rested their conclusions as to what happened in part on a conjectural basis. There was no evidence on the record in support of their finding that Jawahir Din was killed in the lane by the complainants' party, while resisting the attempt of Usman Khan's men to remove sugar‑cane from the haveli of Taj Din. The accused's version as has been mentioned above, placed the scene of murder of Jawahir Din within Taj Din's haveli. This allegation was of course conclusively belied by the recovery of the dead body of Jawahir Din from the lane at a good distance from the haveli. The circumstances in which Jawahir Din met his death remained obscure and it may be that the prosecution witnesses who were produced to say that the accused's own men were responsible for his death, had deposed to more than what they actually saw.
It is unlikely that the accused, even if they had resorted to such a cold‑blooded strategem to bolster up the defence, would have adopted that course within sight of other persons. The Arain party were masters of the situation at the time of the occurrence. They had set the house of the deceased on fire and killed him there. They then removed the dead body to Taj Din's haveli to make it look as if head died there. The circumstantial evidence brought on the record clearly points to the inference that Usman Khan was killed within the precincts of his own house. We entertain no doubt that a blood‑stained pair of black trousers smeared with mud, was also found from the house of the deceased, by the investigating officer. This supports the prosecution allegation that the deceased was involved in a preliminary incident, near the haveli of Taj Din, in the course of which he was injured and that he escaped to his house, wading through a pond. Even if Sultan and Sher Muhammad could be described as interested in the deceased, Muhammad Hussain Lohar's testimony was not, in our opinion, open to the same criticism and he fully supports the prosecution story up to the stage when the deceased's dead body was dragged away to Taj Din's haveli. He, of course, throws no light on the circum stances in which Jawahir Din was killed or three accused injured. But that is not enough to discredit him. Jawahir Din might already have been killed in circumstances of which Muhammad Hussain was not cognisant. Cases have moreover been known, in which accused persons have fabricated more serious injuries on their persons than those found by the doctors on the three accused persons. There is further no reason to disbelieve the version" of Mst. Surayya Begum and Abdul Ghani, P. Ws., who were admittedly present with the deceased in the house, at the time of his murder. Their statements cannot be rejected as false merely on the basis of certain omissions from their police statements. The general tenor of their story seems to have been identical at all stages of the investigation and the trial, as apart from these omissions, no contradictions were brought out between their depositions in Court and their statements recorded by the investigating officer. These two persons had no motive to implicate any of the accused persons falsely in the case. Mst. Surayya Begum had been visiting this village before, on account of her liaison with the deceased and knew the three injured accused previously. This statement of hers was not challenged in cross‑examination. She picked out four others at an identification parade held by a Magistrate under circumstances quite fair to the accused. This also establishes her bona fides. The essential facts required for the conviction of these three injured accused at least, for the murder of Usman Khan, at his own house, were amply established on the record by the evidence of these two P. Ws. and the statement of Muhammad Hussain, P. W. They admitted their presence in the incident in the course of which, according to them, Usman Khan lost his life, though other details of the occurrence mentioned by them cannot be accepted in the face of the circumstantial and other evidence which belies them. The learned counsel who appeared for the State before us, supported the appeal as against these three respondents.
With regard to the five accused who were acquitted by the learned trial Judge, it is enough to say that the State did no challenge their acquittal by an appeal in the High Court. Only a private revision was preferred in that Court against their acquittal, which was dismissed. The High Court could have a best ordered a retrial of those accused, if it came to the con clusion that there were prima facie grounds for thinking that they had participated in the murder. In this appeal, at best, a similar order could have been passed by us. But in view of the fact that we have now considered the whole evidence in the case and recorded certain findings, a retrial would assume a prejudicial aspect, so far as these accused are concerned. We would, therefore, be extremely reluctant to order their retrial.
In respect of Nawab accused, we are inclined to accept the findings of the Courts below that the evidence with regard to the alleged conspiracy, hatched by Nawab, was not satisfactory and reliance could not be placed on it.
After carefully considering the whole evidence on record, we have reached the conclusion that the acquittal of Taj Din, Ramzan and Shafi, by the High Court was manifestly against the weight of evidence produced in this case and that it involved miscarriage of justice. We therefore allow, the appeal and set aside the acquittal of these three persons and convict them under, sections 302/149, 148 and 324 read with section 149, P. P. C. The sentences awarded to them under sections 148 and 324, P. P. C. by the learned trial Judge would be restored. In view, however, of the long time that has elapsed from the date of the trial, we do not consider this to be a fit case for the imposition of the death penalty on the charge of murder. The demands of justice would be met by sentencing these three accused to transportation for life' each on that charge and we order accordingly. All the sentences of each convict will run con currently. The appeal is dismissed so far as the other respondents are concerned.
A. H. Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer