P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal by special leave by a youth aged seventeen or eighteen, by name Shamsuddin. The appellant was tried before a Jury on a charge of having abetted the murder of a school boy Muzammil, and was unanimously found guilty. The Sessions Judge accepted the verdict and sentenced him to transportation for life. Muzammil was an orphan and was living with his relation, Haji Ajimuddin Chowdhury, at Sibrajpur. He had some pro perty which was being managed for him by the Chowdhury. Shahiruddin and Tamiruddin who are brothers were cousins (chachota bhais) of Muzammil's father and therefore next heirs of the murdered boy. Hafizuddin aged about ten is the son of Shahiruddin and the appellant Shamsuddin is the son of Tamiruddin. These two boys came to the house of Haji Ajimuddin Chowdhury on the 14th and stayed there till the 19th of Baisakh. On the last day of their stay they are alleged to have taken Muzammil from a but where he was resting with the son‑in‑law of Haji Ajimuddin Chowdhury. On the following day the dead body of Muzammil was found hanging from a peg in a room in the school. As the body was in an advanced stage of decomposition the doctor was unable to state the cause of death. Hafizuddin and Shamsuddin were jointly tried for having abetted the murder of Muzammil but the only evidence against them was that the deceased boy went out with them from the but and that thereafter be was seen near a mosque in the company of the appellant. The Sessions Judge directed the jury to find Hafizuddin not guilty if they found that he had not attained sufficient maturity of understanding to judge the nature and consequence of his act. As regards Shamsuddin, though the Judge stated in the beginning of his address to the jury in a general way that in a case of circumstantial evidence the incrimi nating circumstance must be clearly proved and they must not be compatible with any reasonable hypothesis of innocence, while placing evidence before the jury and requiring its consideration by them he said: ‑ "If you cannot believe the evidence of P. Ws. 2 and 3 and the evidence of P. W. 1 beyond reasonable doubt you will return a verdict of not guilty against the accused Shamsuddin. But if you can believe their evidence beyond reasonable doubt, you will consider whether accused Shamsuddin had the intention of aiding and facilitating the murder of the deceased by some unknown person or persons by thus deceitfully calling away the deceased. If you believe that he had such intention then, lie will be guilty under section 302 with the aid of section 109, P. P. C." The evidence of P. Ws. 1, 2 and 3 merely proved the going out of the deceased boy with the two accused persons and his being seen latter in the company of the appellant. The Judge therefore completely misdirected the jury by practically asking them to convict if they believed that evidence. He took it for granted that if this evidence was accepted then the accused boys must be held to have deceitfully called away tae deceased and as proving, that the deceased lead been taken away with the object of murdering hint. There was not the slightest warrant for this inference and the right course for the Judge to adopt should have been to direct the jury seriously to apply their minds to the question whether if the evidence of P.Ws 1 to 3 was true it was not reasonably possible that the deceased might have been murdered by some one else without the deceased knowing anything about it. We have seldom came across a case so with at its different stages. The two accused should never have been committed for trial ; the Sessions Judge should have directed the Jury to acquit and the complete absence of evidence should have been noticed by the High Court before it dismissed the appeal summarily. The learned Advocate‑General admits that the Sessions Judge should have not accepted the verdict and referred the case to the High Court under S. 307 if earlier he omitted to direct the jury under S. 289 of the Code of Criminal Procedure to return a verdict of not guilty. This case and some others which have come on appeal have left on us the impression that trial by jury in this part of the country is a lifeless institution, a mere parody of an ancient and sound judicial system. In purported compliance with the simple direction of the Code that "the Court shall then proceed to charge the jury, summing up the evidence for the prosecution and defence and laying down the law by which the jury are to be guided," what the Judge actually does in that he first gives to a body of laymen, often illiterate or semi‑literate, a lengthy dissertation on "initial presumption of innocence," "burden of proof," "proved", "disproved", "not proved" and "circumstancial evidence" and after the jurymen have been sufficiently confused, because even a law student takes days and days to comprehend these abstruse concepts and by an active practitioner their practical importance is realised only after considerable experience, he places the respective cases of the prosecution and defence before them, and having done that, he again confounds them with definitions of "murder", "culpable homicide" and "abetment" in the abstract and it is only after there five to nine wise men get bored and one by one contract a doze and wake infection that the Judge places before them the points for determination including, with lengthy preface, the question whether the man alleged to have been murdered is dead. The result not infrequently is either the acquittal of a criminal or, what is worse, conviction without evidence. This is precisely what happened here because no body of men, unless their thinking faculty had been completely paralyzed, could have returned a verdict of guilty of murder in the present case. Under this system, where two brothers are seen walking together and on the following day one of them is found murdered, there should be no surprise if the surviving brother on coming to know of his murder trembles in his shoes, not because he might; like his brother, be murdered but because at his trial by jury for murder, he might be called upon to account for his dead brother's movements or be found guilty of his murder. We accept this appeal, set aside the conviction and sentence of the appellant, and direct him to be released forthwith. K. B. A /A. H, Appeal accepted,