1969 PLP 395 (SCMR)

A. R. Changez, Advocate‑General Punjab, S. A. Mahmood, Advocate Federal Court with him instructed by Ijaz Ali, Attorney for Respondent. Dates of hearing : 22nd and 23rd March 1954. SHAHABUDDIN, J.‑This is an appeal by special leave from the judgment of the High Court of Judicature at Lahore by which the conviction for the murder of one Mst. Rasul Bibi and the sentence of death imposed on the appellant Ali by the Sessions Judge of Gujranwala were confirmed and his appeal was dismissed. Mst. Rasul Bibi was the wife of the appellant. The case for the prosecution was that the relations between them were strained owing to her refusal to transfer in his name her land in respect of which he and his father were tenants. On account of these differences the appellant was living away from the deceased and the latter had arranged to file a suit for rent, but the plaint was not presented. Two or three days prior to the occurrence, however, the appellant prevailed on the deceased to allow him to live with her; but on 8th February 1951 the deceased accompanied by her step‑father (P. W. 2) reported to the police that the appellant had threatened to attack her because she had declined to transfer her land to him. On the night of 9th February 1951 P. W. 3 who was staying with her sister in one of the kothas of the deceased, while passing the pasar of the deceased overheard her asking the appellant not to kill her. The witness thereupon raised an alarm, hearing which, P. W. 2 the step‑father of the deceased, P. W. 4 a brother of P. W. 3 and one Bashir came running and tried to push open the door, but it was chained from inside. The appellant then came out opening the door and when questioned said that he killed the deceased as she had obstinately refuses to carry out his wishes. The witnesses thereupon entered the room of the deceased and found her lying unconscious with injuries. There was a mohli near her on the ground. Information of the occurrence was given to the police by P. W. 2 at 10 p. m. and the appellant was arrested the same night. His clothes were found stained with human blood, Mst. Rasul Bibi was taken to the hospital where she died the next day at 10 a. m. without regaining consciousness. There were 15 injuries on her all of which could have been caused with a blunt weapon. Post‑mortem Examination disclosed that death was due to the fracture of the skull and the laceration of the brain as a result of four of the injuries which were individually fatal. The defence was that the appellant saw one Rahman one of the collaterals of the deceased coming out of her room that night, that the appellant on going in found the deceased lying on the ground bleeding and placed her on a cot when his clothes became blood‑stained. He denied that he caused the injuries found on her or that he admitted to P. Ws. 2 to 4 that he had killed her. In the cross‑examination of P. W. 2 it was suggested that the appellant suspected that there was intimacy between the deceased and Rahman, but this suggestion was denied. It was, however, elicited from P. W. 4 that the appellant suspected that his wife was intimate with Rahman; but in his statement at the trial the appellant denied that Rahman was intimate with the deceased. Evidence regarding the injuries found on the deceased when she was admitted in the hospital and that relating to the post‑mortem examination given before the Committing Magistrate by the doctors concerned was brought on the record at the first trial under section 509, Cr. P. C. thought the doctors were present in Court. Only certain particulars which were not in that evidence were elicited from them at that trial and not the other particulars they had already deposed to in the committal enquiry. During the arguments at the first trial objection was taken to the evidence admitted under section 509, Cr. P. C. on the ground that it was not admissible as the doctors who had given that evidence were in Court when it was so admitted, and the Sessions Judge who first tried the appellant upholding the objection convicted him only under section 325, P. P. C. though he believed the evidence for the prosecution. On appeal filed by Ali, the appellant, Shabbir Ahmed, J. of the Lahore High Court ordered a retrial observing that the medical evidence admitted under section 509 was wrongly excluded from consideration. Thereafter the appellant was retried with the result already stated. The appeal of the appellant against the conviction and sentence imposed at the retrial as well as the reference under section 374, Cr. P. C. were heard and disposed of a Division Bench of which Shabbir Ahmad, J. was a member special leave to appeal was granted in view of the contention that in the circumstances stated above the Division Bench was not properly constituted. It was contended for the appellant before us that the fact that a retrial was ordered, indicated that Shabbir Ahmad, J. had at the time of passing that order formed an opinion against the appellant on the facts of the case and that, therefore, on the principle of the decision of this Court in Ghulam Rasul and others v. The Crown'(P L D 1951 F C 62) section 556, Cr. P. C. applied. But the facts of that case were entirely different. There, an appeal against the acquittal of the accused was heard by a Division Bench a member of which had, as a Legal Remembrancer, advised the filing of that appeal. In doing so, that learned Judge in his capacity as Legal Remembrancer had considered the evidence and formed an opinion about the case. In those circumstances this Court with reference to the Illustration of section 556, Cr. P. C. held that that section applied. In the present case the order of retrial passed by Shabbir Ahmad J. does not indicate that the merits of case were considered by that learned Judge at that stage. The learned Advocate or the appellant was not prepare to state that arguments on the merits of the case were heard by Shabbir Ahmad, J. in the appeal preferred against the conviction under section 325, P. P. C. In the judgment under appeal Shabbir Ahmad, J. has categorically stated that when he dealt with the matter at the earlier stage he did not apply his mind to the merits of the case on facts and that had he done so he would not have subsequently sat on the Division Bench, irrespective of the legal position as to his competency to deal with the appeal and the reference. In these circumstances, we think, that the principle of section 556 or the decision of this Court in Ghulam Rasul's case does not apply. We have not been shown any other feature which would attract the special jurisdiction this Court exercises in criminal matters. There was sufficient evidence to support the conviction and that evidence was believed by the learned Judges of the High Court. We therefore, see no reason to interfere. The appeal is dismissed. Appeal dismissed.