P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J.‑

In this appeal by special leave there are three appellants Kazi Abdul Jamil, Abdul Motlib and Fazal Bari, whose convictions under sections 147, 342 and 384/109, P. P. C. have been confirmed on appeal by a Division Bench of the Dacca High Court. They were tried by an Additional Sessions Judge with the aid of assessors, and it is of some interest to note that the assessors found each of these three persons, who were included in a list of eleven accused persons, not guilty under section 384, P. P. C. Only one assessor out of four found Kazi Abdul Jamil and Abdul Motlib guilty under section 148, P. P. C. and only one out of four was able to find Kazi Abdul Jamil guilty under section 342, P. P. C. Two of the four found Abdul Motlib guilty under section 342 and as for Fazal Bari, a verdict of guilty was returned against him under sections, 148 and 342 by two out of four assessors. These opinions clearly show a considerable degree of doubt and, in our opinion, the state of the evidence in the case is such that the doubt was fully justified. Kazi Abdul Jamil is a part‑time watcher on the Indo- Pakistan border in the vicinity of the scene of the offence tinder inquiry, which is alleged to have been committed at the border outpost of Senbari camp in the Sylhet District. This camp is about three‑fourths of a mile from the border, and appears to be at quite a short distance from the habitation where the principal prosecution witnesses, namely, Chandra Mohan Singh (P. W. 1) and his mother Mst. Shija Devi (P. W. 6) live. Abdul Motlib and Fazal Bari are police constables who were posted at Senbari Border Police Camp. The story for the prosecution is a somewhat extraordinary one. Late on the evening of the 5th April 1952, Chandra Mohan Singh was visited by two persons from the outpost of whom he stated that Abdul Jamil was one. The prose cution alleged that the other was Serajul Islam, who was brought to trial but was acquitted by the trial Court on two grounds which are of importance. The first ground is that Chandra Mohan Singh did not identify Serajul Islam in the first identification parade. The second ground is that Serajul Islam was still in the camp on the 15th April 1952, which led the Additional Sessions Judge to think that he may not have been there on the 5th April 1952, because the personnel of the camp was almost wholly changed on or about the 9th April 1952. Thirdly, the trial Court was impressed by the fact that the station documents did not show that he was detailed for duty outside the camp at the relevant time, and therefore the presumption should be that he was in the camp. Several of these considerations are available in favour of Abdul Jamil as well. It seems that there were, amicable relations between Chandra Mohan Singh and his visitors from the camp, for he says he entertained them with tea and pan, after which they got up to go. The time would be about 9 p.m. at least. The men made a pretext and got Chandra Mohan Singh to go with them to a certain distance outside his house where they suddenly made a demand for money. Chandra Mohan Singh protested. At this, three constables carrying rifles reached the spot and all the five men began to assault Chandra Mohan Singh with their rifles whereupon he raised an alarm. His mother Shija Devi and several men including Krishnamani Singh (P. W. 4), Kunja Behari Singh (P. W. 5) and Kala Singh (P. W. 7) came to the spot. Of these only Mst. Shija Devi bad sufficient courage to go up to the rescue of her son. She was assaulted with the rifles and fell down. Other witnesses say that she became unconscious and had to be carried home. Chandra Mohan Singh Was clear that his mother was hit on the hand with a rifle. The five men then dragged him towards the camp being joined on the way by three other constables. Inside the camp he was assaulted by a Havildar who was later identified as 'Abdul Hashim Bhoiya as well as by a number of constables. Later, several persons cane to the camp to intercede for Chandra Mohan 'Singh. These were Krishnamani and Kunja Behari, who have already been mentioned. Sena Singh (P. W. 10) and one Krishna Babu, an important figure, who was mentioned in the charge sheet but was not produced at the trial. His brother Sona Singh was, examined as P. W. 14 and admitted that Krishna Behari Singh was convicted in a smuggling case during the pendency of the present case after remaining in the havalat for six or seven months. The Havildar Abul Hashim Bhoiya made a demand of Rs. 2,000 as the price for releasing Chandra Mohan Singh, At about mid‑night Kunja Behari Singh paid over Rs. 1,500 to Havildar Abul Hashim through Naik Motlib Hussain. Chandra Mohan Singh was riot released, however, until the following morning when the balance of Rs. 500 was paid by, among others, the aforesaid Krishna Babu. It should be mentioned here that Chandra Mohan Singh is a Manipuri and Manipur is across the border in India. One of the principal duties of the Border Police is to check the activities of smugglers living close to the border. No less than nine Manipur is gave evidence at the trial as to a part or the whole of the alleged occurrence. A tenth Manipuri who gave evidence is Broja Mohan Singh (P. W. 2), a cousin of Chandra Mohan Singh, and his evidence is as to the, making of the first informa tion report which was on the 8th April 1952, three days after the occurrence and two days after the release of Chandra Mohan Singh. Of the Manipuri eye‑witnesses, seven are able‑bodied men, of an age at which they might be expected not to hesitate to undertake a journey to a thana some 10 miles away to report so serious a crime. . None of these persons undertook the duty, although Kunja Behari Singh is also a cousin of Chandra Mohan Singh and his plea that he had fever the following morning is hardly a sufficient explanation, in view of the great activity he showed in collecting so large a sum as Rs. 2,000 during the hours of the night. Broja Mohan Singh's plea for going late to the thana was that he only returned to his place which is known as Rajnagar, and found. Chandra Mohan Singh and his mother lying injured, on the very day on which he made the report. This statement was not strictly true for to the Committing Magis trate he had said that he returned at about 10 a.m. on the following day which must have been a few hours after the alleged release of Chandra Mohan Singh. What is more, Mst. Shija Devi, mother of Chandra Mohan Singh, told the Committing Magistrate that Broja Mohan Singh returned home the same night. Conse quently, Broja Mohan Singh had no excuse for not going to the thana earlier than he did. The report which he made is a simple one, in which no names of any of the culprits were mentioned, but details of the injuries suffered by Chandra Mohan Singh and his mother were furnished. The words used are as follows in English translation:‑

"When the mother and son were tortured inhumanly many persons went to save them and were assaulted and the hand of his mother was fractured." It was added that when the demand for Rs. 2,000 was communi cated "we went with Rs. 2,000 and on the apprehension that he might lose his life we paid the said amount to them and brought our brother to home in almost dead condition ; his condition is hopeless". The names of four witnesses were given in the report and it was added that others from their villages would be willing to testify. It is noteworthy that of the persons named, one namely, Musharaf Haji was not produced at the trial; although his name was included in the charge‑sheet. Included in the charge‑sheet was also the aforesaid Krishna Behari Singh, otherwise known as Krishna Babu, who was not produced at the trial. Another such witnesses is Doctor S. K. Ahmad, presum ably the doctor who, according to Chandra Mohan Singh, examin ed him and his mother at Kala Sadak, which is the thana town he too was not produced. It stands out very prominently in the case that no medical evidence of the injuries sustained by Chandra Mohan Singh or his mother was produced. It is in evidence that upon receipt of the first information report a thanedur Rahmat Ullah visited the village on the 9th April 1952. He testified before the Com mitting Magistrate, but by the time the case was brought to trial, he was dead. Although he made a detailed statement regarding the evidence which he collected, including a number of material exhibits, there is not a word in his statement regard ing the most material piece of evidence, viz., of the injuries he saw on the persons of Chandra Mohan Singh and Mst. Shija Devi. We have looked through the record of evidence and while there are eleven witnesses who say they witnessed the dragging, some of whom also say they witnessed the beating, there are only three who claim to have seen any injuries on the person of Chandra Mohan Singh. These are Muhammad Ali (P. W. 9) whose state ment on the point is negatived by the discovery in cross‑examina tion that he did not go into the room where Chandra Mohan Singh was lying after his return from the came, and otherwise, he had no means of seeing whether Chandra Mohan Singh bore any injuries. The second is Sena Singh, though in an earlier statement made to the Committing Magistrate, he said nothing about seeing any injuries. The third is Sona Singh (P. W. 14) brother to the convicted smuggler, Krishna Babu, and while he stated at the trial that he saw injuries, it was not possible to check this against any earlier statement as he was not a charge‑sheet witness. Mention of smuggling is relevant to the defence put up by the accused persons in the case of whom there were eleven. In the words of the judgment of the High Court the defence case was as follows;

"Chandra Mohan and some of the prosecution witnesses were veteran smugglers. They lived very close to the Indo -Pakistan border and had been carrying on with this dirty business. If any body tried to stop them, they would bring false case against them. This false case has also been brought as the accused tried to stop smuggling." As we have seen, an important figure on the prosecution side is Krishna Babu, a convicted smuggler. Whether or not some or all of the Manipuri witnesses in the case engaged themselves in smuggling, there can be little doubt that because of their association with Manipur across the border and in view of the fact that they themselves were living so close to that border on the Pakistan side, they were likely to be suspected of such an activity, and therefore it was more than likely that they suffered some measure of check and restraint at the hands of the Border Police, which they themselves would naturally regard as harassment. Therefore, the plea taken in the defence was by no means an unreasonable one. When it is taken in conjunction with the lengthy and totally unexplained delay in reporting the matter to the authorities, and with the complete absence of any proof of injury to the two named persons who were alleged to have sustained severe injuries at the hands of the accused persons, it becomes obvious that the plea was one which needed serious consideration in assessing the truth or falsehood of the prosecution case. For, there was no tangible proof of the passing of money beyond the fact that some of the accused persons had, at about the relevant time, despatched sums of money by post to their homes. These sums were by no means so large .as to be beyond the means of the accused persons in question, and one of them has explained that about that time he had received arrears of pay from which he sent so much money home. There is no reason to suppose that any of the others could not have sent these remittances unless they had come by money in some felonious fashion. There is nothing beyond the oral statements of witnesses to show that Chandra Mohan Singh was ever taken to the camp or was detained there. The money is said to have been collected by the Manipuris among themselves, but no document was executed. And it may perhaps be not without significance that all the debts were repaid either before or just after the wit nesses had deposed in support of the prosecution in the Committing Magistrate's Court. Therefore, the one material proof of the incident having occurred, namely, the injuries on the persons of Chandra Mohan Singh and Mst. Shija Devi which should have been readily available to the prosecution gains very great significance in the case, and its absence is sufficient to throw a great cloud of doubt over the entire story. In the arguments before the High Court this aspect of the case was not ignored by counsel appearing on behalf of the convicted persons. It was dealt with in the following way by the learned Judges of the Division Bench :‑-- "Lastly it was contended that the landmark of the prosecution case is that P. W. 1 Chandra Mohan .Singh was dragged and beaten with rifles. No doctor has been examined to prove the injuries . . . . In this case evidence has been led about the receipt of injuries. So there is no force in this contention." This mode of treatment of a point, which upon a fair appreciation of the case, was so material that it could truly be said that the liberty of the six convicts before the Court depended upon it, can only be described as unworthy. Already the point had been taken that there was long delay in reporting the case to the police. Learned counsel for the appellants before the High Court had not been wanting in proper care and diligence m presenting this point, as will appear from the following extract :‑

"Secondly, he contended that the F. I. R. was not lodged within a reasonable time, and, as such, there was much time to manufacture a case. The delay has not been explained and the F. I. R. was not lodged by a responsible person as the informant P. W. 2, was not an eye‑witness. Moreover, it appears from the deposition of P. W. 2, the informant, that the names of the witnesses were supplied by the scribe of the F. I. R. a Babu, whose identification has not been proved. From this it was argued that the prosecution case is a faked and concocted one made in order to harass the accused falsely. In this case the occurrence took place on the 5th of April 1952, at about 9‑30 p.m. and the F. I. R. was lodged on the 8th of April 1952, at 5 p.m. The case of the prosecution is that Chandra Mohan was released in the morning of the 6th of April 1952. It is seen that on the 8th of April 1952, the relieving party joined the camp and except ing the accused Naik Matlib Hossain all the members of the camp left on the 9th of April 1952. It is contended by the learned Advocate for the State that the presence of the accused prevented the early lodging of the F. I. R. and only when it was found that the accused would leave the camp the F. I. R. was lodged. We find that there is force in this contention. The F. I. R. can be used to contradict the informant, and the informant deposed that he was not an eye‑witness but lodged the Ejahar on getting information from others. So we find that there is no force in the conten tion of Mr. Ghani." With respect to the learned Judges their conclusion should have been exactly the opposite. Bearing in mind the power ful circumstances which have been detailed above, and which have the effect of throwing a cloud of doubt over the entire case, it seems to us that the aspect of the matter which should have impressed itself upon the minds of the learned Judges, as respects the movement of personnel at the camp, was that supposing that the complainants were out to bring a false case against some members of the staff posted at the camp, the best time to do so was when such persons had just been posted away, for then they would suffer the maximum harassment in having to appear in Court time and again, involving absence from duty elsewhere and probably long journeys, and moreover the deferent effect upon the incoming personnel at the camp would be extremely high. If the circumstances had been otherwise, e.g., if there had been a prompt report and proof of injuries had been given, with or without further material proof in support of the allegation of extortion, the view which the 1 earned Judges have taken might perhaps have been tenable, viz., that the complainants being in terror of the police at the camp who had subjected them to extraordinary oppres sion would wait until they were transferred away before bringing so serious a charge against them. But where the whole story is, from the outset, encircled with doubt, the least that might have been expected was that the learned E Judges would take into account that aspect of the matter which was favourable to the defence. Leave to appeal was given in this case on the ground of the "very unsatisfactory nature of the judgment recorded in the High Court" and that a number of conclusions A reached by the High Court on important points seemed "to lack the support of sound reason". It would serve no useful purpose to make a further detailed examination of these conclusions, but we may mention one of them, namely, the treatment of an argument strongly pressed before the learned Judges in favour of the appellant Kazi Abdul Jamil. It was represented that his case stood on a par with that of Serajul Islam who had been acquitted. The reasons for the acquittal of Serajul Islam have been stated above. It was pointed out that Kazi Abdul Jamil s name also did not figure among the names of persons who were noted in the documents at the post who had gone on patrol at the rele vant time, and moreover it seems that he was present when the roll was called at the post at 8 p.m. Further he had never been placed in any test identification parade, but was only identified in Court by two witnesses, namely, Chandra Mohan Singh and krishnamani Singh. Since the identification of Serajul Islam had been disbelieved by the trial Court, it was urged that the story of two plain‑clothed personnel having first approached Chandra Mohan Singh should be disbelieved and therefore the conviction of Abdul Jamil should be set aside on the ground of lack of evidence, if not on the ground of benefit of doubt. The reply of the learned Judges to this argument is contained in the following words: ‑‑ "To this it can be said that the aforesaid circum stances do not make the presence of the accused at Chandra Mohan's house or participation in the occurrence improbable. There is reliable evidence implicating the accused in the crime, P. Ws. 1 and 4 identified him. We do not see any reasons to interfere with the finding of the lower Court". This conclusion could not have been reached if the learned Judges had first applied their minds to the question of the doubtfulness or otherwise of the story told by the prosecution, as a whole. For reasons which have already been stated with sufficient clarity our opinion is that the whole case is doubtful and, this doubt affects the evidence of Chandra Mohan Singh' and Krishnamani Singh very seriously. Therefore in the face of the evidence tending to exonerate Kazi Abdul Jamil which vas accorded due weight for exonerating Serajul Islam, it is clearly impossible to accept the unreliable evidence of Chandra Mohan Singh and Krishnamani Singh as sufficient for securing the conviction of Kazi Abdul Jamil. As for Abdul Matlib and Fazal Bari, the weakness of the case against them lies in the fact that no one identifies either of them as having participated in the dragging or beating of Chandra Mohan Singh, who himself said that he could not identify the persons who had dragged him. He picked out the, Havildar and the Naik who he alleged had received the ransom money paid for him, and he declared that Kazi Abdul Jamil and Serajul Islam were the two men who first visited him. Therefore the entire case against Abdul Motlib and Fazal Bari rests upon the mere fact that they were picked out by a number of eye‑witnesses in identi fication parades conducted by P. W. 11 Mr. Muhammad ullah. As to that, the learned Additional Sessions Judge had given an opinion which, in our opinion, is a very reasonable and thoroughly sound verdict. He used the following words :‑-- "It is quite true that they had been identified at the test identification parades, but after seeing the men in the camp for such a long time there was nothing difficult to identify these men at the test identification parade". That was not said with particular reference to the cases of Abdul Motlib and Fazal Bari, but it applies in their favour nevertheless, and we consider that upon a true appreciation of the case as a whole and of all the evidence led, the learned Judges in the High Court could not have come to any other conclusion than that no case had been made out against Abdul Motlib or Fazal Bari: As to Kazi Abdul Jamil, his case might have been placed even higher, namely, that he had created by production of evidence sufficient doubt regarding the possibility of his presence at the scene of the crime, at the relevant time, to justify his acquittal. In this case it has been necessary for this Court to re‑examine the evidence in the light of all the proved cir cumstances in order that justice should be duly administered. It is the function of the High Court to arrive at findings of fact upon the evidence, and this Court, as a rule, refrains from interfering with such findings, unless in very excep tional cases, which it is not necessary to categories here. Our interference with the findings reached upon the evidence by the High Court in the present case has been necessary because in assessing that evidence the learned Judges in the High Court did not approach the case from the proper angle, and this has resulted in their reaching conclusions without giving the degree of consideration to the pleas taken in defence which those pleas clearly deserved. Un less the evidence in a case is assessed on the foundation of a clear understanding of all the circumstances as they appear, and with a full appreciation of the nature of the pleas advanced by the defence, there can be no safety in the dispensation of justice. For the reasons already given, we allow this appeal and acquit the appellants. They will be released forthwith from their bail bonds. A. H Appeal allowed.