P (PLP)

It was not disputed that appeals fn which capital sentences may be passed are, under the rules of Lahore High Court, heard by a Division Bench composed at least of two Judges of that Court. In coming to a decision whether the Division Bench, composed as it was of Jan and Kayani JJ., had been properly constituted, we must examine the provisions of section 556 of the Code of Criminal Procedure in the first instance. It runs as follows:

No judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself." Explanation:--A Judge or Magistrate shall not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein fit a public capa city, or by reason only that he has viewed the place in which an offence is alleged to have been committed or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case. The applicability of this section depends on the interpretation of the word try used in the earlier portion of the section. If it is found to have been used by the legislature in a wider sense and was intended to include any stage of a judicial proceeding in which a decision as to the guilt or innocence of the accused has to be arrived at and if it is comprehensive enough to cover the hearing of an appeal or of a revision. It would follow that Kayani J., was incompetent to hear the appeal provided that he could in view of his opinion, be found to have been personally interested. Having regard to the maxim of jurisprudence (Nemo debet esse judex in propria causa) that no one should be judge in his own cause, we are definitely of opinion that it had been employed by the legislature in a comprehensive sense for it is immaterial whether a Judge was hearing an appeal or revision after a decision had been arrived at by a court of original jurisdiction. The legislature could not have possibly intended that while an accused must be, in the first instance, tried by an officer who was not personally interested, an appeal from the judgment may be heard by a person who was. The second question then is whether in view of his opinion Kayai, J., can be found to have been personally interested. The Advocate-General relied on the explanation to the section and urged that inasmuch of the learned Judge was only concerned with the case in a public capacity and had record his opinion as Legal Remembrancer he cannot be so found. The illustration given after the explanation is to the following effect:- A, as collector upon consideration of information furnished to him, directs the prosecution of B for a breach of Excise Law, A is disqualified from trying this case as a Magistrate. Having been appended to the section itself, it must be called in aid to interpret the intention of the legislature. It unequivocally indicates that an officer would be disqualified from trying a case if he has either directed the prosecution after consideration of the information furnished to him. Or, in the case of an appeal or revision after the consideration of evidence adduced in the case and on which the judgment of the first court was based. The consideration of evidence and coming to a decision, even for a purpose of an opinion whether any appeal or a revision should be filed is in our judgment a more serious matter than the consideration of the information referred to in the illustration. The observation in Pohpi s case I.L.R.13 All.171 that human beings are after all human beings and with all honour due to the honesty and integrity of the judges. They have been themselves concerned appears to us to be opposite and has to be taken note of. It is highly undesirable, in our view. (and that is the effect of the illustration) that a Judicial officer, whatever be his rank or position, should act judicially in a case in which he had occasion to investigate extra-judicially and in revision. We are not unmindful of the fact hat the Legal Remembrancer s opinion was not final and had to be approved by a higher authority before it could be given effect to, but it must not be forgotten that the Legal Remembrancer is the highest law officer of the Government, who have to depend on his advice which is usually accepted. This was what had actually happened in the present case. A consideration of the principles underlying the various deci sions cited at the bar leads us to the conclusion that nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair' trial. It is essential, as had been said in a large number of cases, that "justice must not only be done but must manifestly be seen to be done." It seems to be unnecessary to discuss all the cases but the decision of the Judicial Committee in Tumashle Bereng and others v. The King A. I. R. 1949 P. C. 172, and in Adan Haji Jama and others v. The King L. R. (1948) A. C. 225, would give an idea as to how jealously their Lordships guarded against any impression being created that the accused did not have a fair trial. A relevant portion of the head note in the first of these cases, which is accurate, may be reproduced with advantage:

"Where a person in anticipation that he to serve as an assessor in murder trial, in good faith, moved by a desire to prepare himself for' the duty he anticipated accompanies the investigating officer to the scene of the alleged crime and acquaints himself with knowledge of physical features of the spot and certain material aspect of the Crown cases in the company of the approvers and the Crown witnesses but in‑the absence of the accused, his subse quent participation in the trial as an assessor is highly irregular. In such a case prejudice to the accused must be presumed. For it might well be thought that he had come to Court with a based mind in the sense of having formed a definite view as to what had occurred or as to the credibility of the witnesses whom he had observed or questioned. It might also be thought that he had been told more than could be legally proved, or that his interrogation of an accomplice might have had an effect upon the story as told by that witness afterwards at the trial. All this, of course, is in the realm of conjecture, but whore the irregularity complained of may reasonably engender suspicions of this nature it cannot be left out of account, particularly when, under the law the opinion of the assessor could be communicated to the judge in private." It may be stated here that by virtue of section 7 of Proclama tion No. 57 of 1938 as amended by section 1 of Proclamation No. 41 of 1942, the position of the assessors under that law was the same as those of their counter‑parts under the Code of Criminal Procedure. The decision of the case was `vested exclusively in the Judge' and any "agreement or disagreement with the opinions of the assessors had merely to be noted by the judge on the record." Similarly the Judicial Committee acquitted the appellants when it was discovered by their Lordships in Adan Haji Jama's case L.R. (1948) A.C. 225; that in the absence of a prosecutor who could neither open the case nor examine the witnesses, as required by section 226 of the Ordinance of the Protectorate of Somaliland, the judge had himself conducted the Examination‑in‑chief of all the 55 witnesses for the prosecution and this had led their Lordships to conclude that " the accused did not have the protection to what they were entitled under the Ordinance, namely, to be tried by a judge whose mind was not, and could not have been affected by assuming the duties of a prosecutor." Their Lord ships also observed that " the curative provision of section 393 of the Ordinance (which is expressed in substantially the same terms as section 537 of the Indian Code of Criminal Procedure) cannot be called in aid to support a trial conducted in a manner substantially different from that laid down in 'the Ordinance. The decision of the Full Bench of the Allababad High Court in the matter of the petition of Ganesh I. L. R. 15 All. 192 is not relevant as there was nothing to, show on the record that the Magistrate, who had directed Mat. Ganesh's prosecution had considered the information furnished to him in his capacity as Officer‑in‑charge of the excise and opium administration, and that is why he was held not to be ' personally interested in the case. Had this been so, he would have come within the mischief of the illustration appended to section 556 of the Code. The submission by the Advocate‑General that the impro priety in the constitution of the Bench was, in any case, a mere irregularity acid should be held to have been cured under section 537 of the Code of Criminal Procedure as no injustice had thereby been occasioned, is without any merit for firstly, it was not an irregularity but illegality, the provisions of section 556 of the Code being, mandatory in character; and secondly, because section 537 of the, Code cannot in terms apply to the invalidity in the constitution of the Bench, which relates to its competency and thus belongs to the region of substantive errors of law and not to errors of procedure arising out of mere inadvertence referred to in that section. The question, therefore, whether the error, omission, irregularity or misdirection mentioned in section 537 had in fact occasioned a failure of justice does not arise for consideration. The contention that the counsel for the accused had agree' to the appeal being heard by the Division Bench as it bad beer. composed, does not appear to us to affect the accused's right in pressing their objection as to the' impropriety in the constitution of the Bench based as it is both on the mandatory provision of section 556 of the Code of Criminal Procedure, which is found to be in terms applicable, and on the principle of natural justice, already toughed upon in an earlier portion of this judgment. The accused were not even present in Court and no agreement by their counsel in a matter like this can be held to be binding on them or to preclude them from raising it now. In fairness to Kayani J., however, we must record that nothing was said before us which may in the slightest degree cast any reflection on his integrity or, impartiality. Nor have we any reason to doubt that he bad not decided the appeal in accordance with the dictates of his own conscience. The provisions of section 556 of the Code of Criminal Procedure appear to have been missed y every one concerned and it was not realised at the time that in view of the opinion recorded by him, Kayani J., was either precluded from hearing the appeal or, at all events, it was not judicious for him, in the circumstances of this case, to be a member of the Division Bench. The appellants stand upon their legal rights and call upon us to give effect to the objection and we are constrained to hold that the constitution of the Division Bench with Kayani, J., as one of its member was legally wrong. The judgment 'of the High Court thus suffers from an infirmity and the findings arrived at by drat Court must therefore be kept‑ out of mind in coming to a decision upon the merits. After arriving at the decision that the Bench or the High Court had not been properly constituted, two courses were open to us. We could have set the judgment in appeal aside and called upon the High Court to constitute another 'Bench of which Kayani, J., should not be a member or in the alternative to hen the appeal ourselves. The Advocate‑General was unable to cite any authority in support of our adopting the first course. A the whole of the case had been argued on behalf of the accused appellants already and we found, as was also admitted by the Advocate‑General, that the decision of the entire case depended solely on the acceptance or rejection of the testimony of Zainab Bibi (P. W. 2). we were of the view that, to avert further delay, in the disposal of this appeal, it would, be advisable for us to decide the case ourselves. This is also in accordance with the procedure followed by the judicial Committee at the Privy Council reported in an earlier part of this judgment. As to the merits, we may at the outset state that this is a very unfortunate case. Four persons had been strangled to death and no human being can have any thing but regret for those who had been so brutally murdered. There is also no doubt that evidence of motive adduced on behalf of the prosecution in this case may give an indication as to the persons who might have committed these murders, for we were not impressed by the decision of the learned Additional Sessions Judge that the accused had no motive in getting rid of the deceased persons. It is true that the Shariat Application Act (IX of 1948) came into force on the 16th March, 1948, about a fortnight after the murders had been committed; but the change in the law had been freely circulated and discussed for months before and it is highly improbable that the accused, who, as agriculturists, were being affected by the change, either for better or for worse, had not heard of it. The question whether in view of that legislation they would only have half of the property left by Jewar Ali on his death of the value of forty or fifty thousand (the estimated price given to us by counsel for the appellant', although the Advocate‑General was inclined to lint its value at a higher figure), or, whether in view of the will made by ‑him in favour of his daughter of which they were probably aware‑they would be deprived of the whole, or that they would not have inherited any portion of the property acquired by Jewan Ali himself under the general customary law and that their position was to improve in consequence of the legislation, were too technical and it is not easy to assume that lay mail, as the accused or the other sons of Hassan Muhammad were, they would possess the necessary knowledge to decide, even in their own minds, as to bow they would be affected by the change. The position that being a very neat collateral of Jewan Ali in fact his own brother Hassan Muhammad or his sons who were also very near, collaterals, being nephews, may be deprived of either the whole or a portion of the property in consequence of Jean Ali's will or new legislation may have influenced the minds of those who were, in their views, being so effected. These are possibilities, however, and although they may have been of considerable value in conjunction with the evidence of murders, if it was found to be reliable, are, yet, of no value in the absence of any such evidence. Indeed the very fact that certain persons were interested in the death of Jewan Ali, his widow, his daughter and grand‑daughter should ‑make one cautious and should not, in the absence of evidence, cogent and reliable, lead him to assume, easily or lightly, that the murders were committed by those interested in the property left by Jewan Ali. The evidence as to the recoveries of various things belonging to the deceased persons, was rejected by the trial Court, It might be observed that it does not even find a reference in the judgment of the High Court. This we take to be a clear indication of the fact that even the learned judges of the High Court were not prepared to place any reliance .on it, Similarly the evidence of extra‑judicial confessions was rejected. The only question, therefore, is whether the direct evidence of murder led on behalf of the prosecution was reliable and could be safely acted upon. This consisted of the solitary statement of Zainab Bibi (P. W. 2). We read it over again with as great a care and as much anxiety as it was possible for us to do. But we found ourselves in agreement with the trial Court that she was not a witness of truth and at all events her version was so highly improbable as to be valueless in coming to a decision in favour of the prosecution. In reading her statement we had to bear it in mind that she is the wife of Ghulam Rasul accused with whom she continued in spite of his conjugal infidelity, to reside even after these murders had been committed when one of the murdered persons, Mst. Rasul Bibi, who was no other than her brother's wife and the two other close relations had been strangled to death in her own presence by a party of which, according to her statement, her husband was a member. According to the medical report these murders appeared to have been committed on or about the 2nd March, 1948. But it is astonishing that she observed stern silence in respect of these tragic events for thirteen days, when it was possible for her to relate them either to the Musallan or to the Kama, who had been visiting the house during that period, or at least to her own son, who was 8 or 10 years of age and living with her. This silence makes her statement to be very suspicious. If she were kept confined to her own room for all these days, it is highly improbable that she should not have tried to communicate with those who were living on the various sides of her apartments. She could have easily appealed to them for her own release and disclosed the reason why she had been confined. But she did not. In fact she could have without any difficulty slipped out of her room through the window in the northern wall of her kotha, if she had been kept confined against her will and told every body in the vicinity as to what she had witnessed, if she wanted to, and if the story told by her were true. This is not all. She deposed in the first instance that she had on her arrival 'found‑ Hassan Muhammad beating Shamim Akhtar, Muhammad Yousaf beating Rasul Bibi and Muhammad Bashir catching hold of Hussain Bibi But she did not "cry out to Jewan" or even to her own mother‑in‑law, who was a sister of Hussain Bibi. She could not have then anticipated that the two women and the girl were being beaten with the objection of killing them. But realising probably that this statement would not fit in with what she had been possibly persuaded to say or with the object which she might have had in mind, she changed soon after during her examination‑in‑chief and stated that she had actually seen, to use her own words, "Shamim Akhtar was being strangled to death by the force of the hands pressed round her neck. Yousaf accused was similarly strangling Rasul Bibi and the same was the position in which Hussain Bibi had been held." Strange to say that she did not even then intervene or cry for help to rescue them. It is still more astonishing that none of the victims of this tragedy tried, notwithstanding the natural instinct of self preservation which is so strong in living beings, tried to resist the murderous assaults and allowed themselves to be strangled to death almost willingly. It is impossible to believe that Zainab Bibi would have made no noise if she had in fact witnessed these murders. Moreover, we did not find hey statement supported by the medical evidence produced in the case. Dr. Sardar Ali (P. W. 12), who had conduct ed the post‑mortem examination of all the deceased persons on the 17th March 1948, stated that he had found a ligature mark of 2" in breadth round the neck of Shamim Akhtar and of 3" in breadth round the neck of Rasul Bibi and pieces of cloth of 7 ' to 8' in length round their necks with knots tied on the back in one case and on the right side in the other and that deaths were in both of these cases due to suffocation. Neither of these two person's had any contused marks of injuries on their bodies. No piece of cloth was found to have been tied round Mst. Hussain Bibi's neck but if injuries 1 and 3 are to be kept in view and death is found to be due to dislocation of the left piece of the thyroid cartilage due to pressure leading to suffocation and shock, it must be presumed to have been caused by strangulation. The story deposed to by Zainab Bibi must also be found to be wrong for according to her all these persons had been strangled to death by the pressure of hands as mentioned by her. If that were so, the marks of strangulation could not‑have been as wide as they were stated by Dr. Sardar Ali to be. Nor would there have been any necessity for wrapping cloth or tying knots round the necks of the two of them. The width of the ligature marks clearly points to the conclusion that all the three women had been strangled by tying cloth round their necks and not by pressure of hands. But after a careful consideration of her statement we are not satisfied that Zainab Bibi was a witness of truth or that in any case her testimony could be safely accepted. It appears to us that the story of her confinement to her own apartment was concocted by her mainly to explain her silence for the twelve or thirteen days which had passed between the time that the deceased had not been heard of and the date when she was examined by the police. There is nothing on 'the record to show how she had been persuaded to make that statement on the 15th March 1948. It is nevertheless a fact that she came out with a statement not only against her own father‑in‑law, against her husband's brothers, but against her own husband as well when the police appeared on the scene. It is by itself a suspicious circumstance for in the absence of anything else it is impossible for us to believe that the fear of God or her realisation of the value of truth on the 25th March made her depose suddenly against these persons. We, therefore, hold that it has not been established that Zainab Bibi had witnessed the occurrence. The Advocate‑General has relied upon the accused's conduct remaining silent for a long time after the murders as corroboration of Zainab Bibi's statement. To assume that the murders were committed in the room adjoining those occupied by the appellants, as deposed to by Zainab Bibi, and then to infer their guilty' knowledge from their silence, is neither good sense nor good logic. What‑if the deceased persons had in fact left for Wazirabad, as stated by Walayat Husain (P. W. 8) a few days before the 29th February 1948, and had been done to death while returning, somewhere near the dal into which their bodies were subsequently thrown and eventually found on the 15th March, 1948? How could the accused's silence in that case, be regarded as corroborative ? They could have heard or known nothing of all the four persons who had died. It is quite possible that these or some of these accused might have been guilty of committing murders. It is, equally possible that some other persons might have been guilty of these heinous offences. In the absence of reliable evidence their convictions must be set aside. We accordingly allow the appeal, acquit the accused and order that they be set at liberty forthwith. Appeal accepted. Attorney for appellant:‑--Shamim Husain Qadri. Attorney for respondent :‑

S. Zahir Abbas.