1969 PLP 697 (SCMR)

Nawab Ahmad, Advocate Supreme Court instructed by Wall Muhammad, Attorney for Respondent No.

2. Date of hearing : 27th October 1958. CORNELIUS, J.‑By this appeal brought before the Court by special leave granted to Muhammad Hassan, relief is sought in respect of an order of the High Court of West Pakistan, dismissing a revision petition filed by Muhammad Hassan against the acquittal of two persons, Muhammad Ismail and Muhammad Mehdi, whom he had accused of the offence of causing grievous hurt to him. Leave to appeal was granted by this Court to ascertain, in respect of the judgment in first appeal of the Sessions Judge, acquitting the accused persons, whether justice had not only been done, but had also been seen to be done. This aspect of the case was not asserted before the High Court, m the terms used above, but it was pressed that the Sessions Judge "had betrayed his prejudice in favour of Maulvi Hassain Ali, by writing (after his name) the words `peace be upon him' in his judgment". It should be mentioned that Maulvi Hassain Ali, a person who appears to have died some time ago in the odour of sanctity, had not direct connection with the case. It appears that strife had developed among his sons after his death over the right to administer, or rather to serve at, his shrine, and the case for the complainant Muhammad Hassan was that he was a devotee of Maulvi Hassain Ali, but was in the camp of the party among Maulvi Hassain Ali's sons which was out of possession, so to speak. The point of prejudice raised in the High Court was disposed of in the judgment by saying that the Sessions Judge, if he revered Maulvi Hassain Ali "would naturally have respect for all his sons". The learned Judge proceeded to consider the evidence led in the case and came to the following conclusions:‑ "The learned lower appellate Judge considered all this evidence as well as the delay in lodging the report, and arrived at the conclusion that no case had been made out against the accused‑appellant. I entirely agree with him." On a careful perusal of the judgment recorded by the Sessions Judge, we find ourselves unable to endorse the approval accorded to it in the High Court. That judgment commences as is usual, with the statement of the prosecution allegations, followed by an account of the police investigation, of the pleas in defence and the evidence led in support. The judgment then proceeds to enumerate 12 points which counsel for the appellants Khan Barkhurdar Khan had raised before the appellate Court. These points need to be mentioned in some detail, for the purpose of finally evaluating the judgment, i.e. whether the judgment, on the face of it, bears the marks of a true dispensation of justice. The first point made was that two years previously, two relations of two of the eye‑witnesses Muhammad Hayat and Muhammad Sher had murdered a relation of the two appellants, and one of the accused person had been sentenced for the crime to undergo imprisonment. As a consequence of this, it was said in the third group that Muhammad Hayat and Muhammad Sher had been obliged to leave the village. 'I he second, fourth and fifth points which appear wholly irrelevant to the case, were to the effect that two sons of a brother of a pleader by name Muhammad Zakria, 'had b; en convicted and sentenced at the instance of the appellants, and the result was that ever since Mr. Zakria had started practice as a pleader in Mianwali, a series of false cases had been set up by the two eye‑witnesses mentioned above against the two appellants, so much so that Khan Barkhurdar Khan could say that "the other day he got the appellants acquitted in 6 or 7 cases on one and the same day". It was pointed out in ground (7) that Muhammad Hayat and Muhammad Sher could hardly claim to be imams of the shrine of Maulvi Hussain Ali when in fact they had been obliged to leave the village. In ground (6) it was alleged that these witnesses had used Muhammad Hassan complainant who belongs .to another village "as a tool to fabricate this false case" which no one in the village was prepared to support, and sit was added that the third eye‑witness Muhammad Hussain P. W. 3 too belonged to an outside village. As regards the occurrence, in ground (8) it was said that there had been four days' delay in reporting it, which was altogether disproportionate the distance to be covered which was only some three or four miles, and it was asserted that the medical certificate was false and the whole case had been invented. In ground (9) it was denied that Muhammad Hassan had ever been beaten in wandha Maulvi Hussain Ali, and that any occurrence of the kind alleged by him had taken place in that wandha. It was suggested that Muhammad Hassan received his .injuries somewhere else and even that they might be "self‑suffered". It was denied in point (10) that Muhammad Hassan was a moored of Maulvi Hussain Ali, and it was asserted that all the sons of Maulvi Hussain Ali had repudiated this claim of Muhammad Hassan, and in this connection, the somewhat extraordinary statement was made that in order to injure the appellants "their enemies Muhammad Hayat, P. W. 2 and Muhammad Sher P. W. 6 hate embarked upon a conduct of blasphemy in using the name of Gadi of Maulvi Hussain Ali Sahib (peace be upon him)". In grounds Nos. (11) and (12) it was said that the convicting Magistrate had failed to see through the falsity of the entire prosecution case and had ignored its improbabilities and absurdities. It will be seen that the contentions raised in the grounds put forward by the appellant's counsel, which the Sessions Judge was at such great pains to set out in detail were by no means all connected with the question arising for decision in the case. In particular, the mention of Mr. Muhammad Zakria and the other "false" cases was wholly irrelevant. The circum stances of delay in reporting the case, and that the eye‑witnesses Jived out side wandha Maulvi Hussain Ali were undoubtedly relevant, but much that was mentioned in the grounds outside these matters was either irrelevant or conjectural or, both. Yet, the Sessions Judge found it possible to declare, in his brief concluding paragraph following immediately after the enumeration ‑of the grounds, as follows:‑ "I find that each one of the contentions of Khan Barkburdar Khan is correct. The complainant has definitely been set up by the above two enemies of the appellants and the whole of the prosecution case is falsehood personified and concoction incarnate. No occurrence of the type alleged in this case took place' at the alleged place of occurrence." He went to describe the eye‑witnesses as "only bogus witnesses" mentioning that they come from outside places, and concluded that the appellants had been "convicted without any good ground". It should be mentioned here that, in keeping with. the suggestion 'that even to mention the shrine of Adcuslvi Hussain Ali in connection with such a crime as that in the present case was "blasphemy", the Sessions Judge has, wherever mention is made in his judgment of Maulvi Hnssa.in Ali added the expression. `'peace. be upon him", which is applied only to acknowledged Pro phet and other deceased persons of universally accepted spiritual distinction. In accepting fully the contention of Khan Barkhurdar Khan that Muhammad Hassan was not a murid of Maulvi Hussain Ali, and that he had blasphemed the shrine by mentioning it in connection with this allegedly false case, the Sessions Judge clearly evinced prejudice towards Muhammad Hassan, which. remains unaffected by the consideration advanced in the judgment of the High Court that sitiowing respect to Maulvi Hussain Ali, the Sessions Judge cannot be thought to have been choosing between one set of the sons of later Maulvi Hussain Ali and the other set. But an even more serious error appears in the acceptance of the very grave allegations made by Khan Barkhurdar Khan about Mr. Muhammad Zakria, a person who was not connected with or in any way a party to the incident out of which the case arose. This clearly indicates. that the Sessions Judge was deciding the case, not on the basis of any analysis of the evidence or appreciation of the circum stance, but on wholesale acceptance of the one‑sided contentions of Khan Barkhurdar Khan, many of which were apparently not supported by evidence. It is only thus that one can understand how the Sessions Judge came to use the expression "falsehood personified and concoction incarnate" in relation to the prosecution case. The judgment of the Sessions Judge in the case is therefore not a judgment, in any sense of that expression which can be accepted as proper for the due dispensation of justice. The conclusions which he has reached are root based upon any appreciation of the facts, the circumstances and the evidence but entirely on pre‑suppositions and one-sided conclusions. It is clear from the conduct of the appellant, who was unassisted by a counsel in the present proceeding, that he is by no means satisfied that justice has been done in his case. We note in particular one matter which has not received sufficient notice,, via., that the complainant being himself the injured man, is, entitled to have his evidence as to the persons who injured him; treated with due consideration. We find' no mention of his, evidence in the judgment of the Sessions, Judge and only a ‑perfunctory mention in the judgment of the High Court. We are not satisfied that the error which we have found in the judgment of the Sessions Judge has been corrected or even was capable of being corrected, in the revision proceedings before the High Court. In all the circumstances, we consider that the appropriate course is that the judgments delivered in the High Court and by the Sessions Judge should be set aside and that the appeal of Muhammad Ismail and Muhammad Mehdi should be heard afresh by some other Sessions Judge, and we direct accordingly.