P L D 1958 (W (PLP)

ORTCHESON, J.‑

This order will dispose of two criminal appeals Nos. 116 and 487, respectively of 1957, and Criminal Revision No. 79 of 1957. Appeal No. 116 is by the convicted persons and No. 487 by the State against the acquittal of the accused under section 302/149, P. P. C., while the revision has been filed by Asad Ali Khan, brother of Hashmat deceased, for a re‑trial or in the alternative for enhancement of the sentences passed by the learned Sessions Judge.

2. The convicts Bahab, aged 35 years, Abdul Majid alias Majid, aged 45 years, Shakur, aged 30 years, Ali Muhammad alias Alia, aged 32 years, Bule Khan, aged 38 years, and Manzoor, aged 20 years, were convicted by the learned Sessions Judge, Multan, under sections 148 and 326/149, P. P. C., and sentenced to three and seven years' rigorous imprisonment each, respectively, to run concurrently, for rioting and causing grievous hurt with sharp -edged weapons to Hashmat deceased.

3. The convicts are inter‑related, Baharb and Majid being first cousins. Shakur and Manzoor are brothers and second cousins of Bahab and Majid. Bule Khan, Alia and Majid are related by marriage.

4. The prosecution case is that about a year before the present occurrence, the allotment of certain land in the name of one Bhopu, a relation of the convicts, was cancelled and Hashmat tried to obtain it. This annoyed the convicts, who attempted to persuade Hashmat to give up the attempt to secure the allot ment but without success. They then threatened to have their revenge.

5. Shortly before 9 a.m. on .the 3rd of December 1955, the deceased and his brother Asad Ali Khan (P. W. 6) set out from their house in Chak No. 12/A. H. for Vinoi Rest House, where the Colonization Officer was staying. On the way they met Bashir (P. W. 7) and Ghafoor (P. W. 8), who went with them. The deceased was wheeling a bicycle. When they had reached a place to the south‑west of the village pond, the six accused emerged from a khola situated to the north of Bahab's house, Buie Khan being armed with a safajang, Shakur and Ali Muhammad with spears and Bahab, Majid and Manzoor with lathis. Bule Khan struck the deceased on the left leg while Ali Muhammad and Shakoor gave him one spear blow each on the left and right arm, respectively. The remaining three accused struck him with their lathis, Bahab on the buttock and Majid and Manzoor on the head, all inflicting one blow each. (It may be mentioned that at the trial Asad Ali, after stating that Bahab struck the deceased on the buttock, corrected himself arid alleged that this accused aimed a thrust at the anus of the deceased). The deceased's companions raised an alarm, attracting to the spot Ghani (P. W. 9) and two other, persons, Ramzan and Nawab, neither of whom has been produced. The assailants then made their escape.

6. After the attack Hashmat was placed on a charpoy and his relations set out with him for Police Station Kabirwala, but when they reached a well about a mile and a quarter from it, Ali Muhammad Shah A. S. I. (P. W. 11) met them and recorded Hashmat's statement Exh. P. K. The A. S. I. then went to the spot, which is about eight miles from where he met the deceased. Hashmat was eventually admitted to Khanewal hospital, the doctor at Kabirwala having bean found absent. As his condition was deteriorating his dying declaration Exh. P. G. was recorded at 10 p.m. by Ali Muhammad Head Constable (P. W. 10). Hashmat died within half an hour, and the post‑mortem examination of his body was carried out by Dr. Fazal Elahi (P. W. 1), who found nineteen injuries, most of them described by the doctor as incised. The only injuries inflicted with blunt weapons were two contused wounds on the left parietal and parietal‑occipital regions respectively, a bruise over the left shoulder region and two abrasions on the upper part of the right shoulder‑blade. The left parietal bone was fractured and the frontal lobe of the brain lacerated on the left side. Injury No. 14, an incised wound, 5' x 2" x bone deep, at the lower end of the left leg had disarticulated and divided the left tibia. The ligaments of the ankle‑joint and the plantar blood vessels were also divided. Death was due to shock .and .haemorrhage following the infliction of the above injuries. The defence elicited from the doctor that neither the fracture of the skull nor injury No. 14 was necessarily fatal, and that, had the bleeding from injury No. 14 been stopped by proper treatment the deceased might have survived. It is clear from the doctor's evidence, however, that he took the cumulative effect of the injuries into consideration. When asked whether Hashmat Ali could have been conscious at the time he is alleged to have made the statements Exhs. P. K. and P. G., the doctor replied in the affirmative.

7. In the course of the investigation certain recoveries of weapons were made at the instance of the accused, Manzoor and Bahab producing the blood stained dangs (Exhs. P. 1 and P. 2 respectively) on the 9th of December 1955, while ten days later Ali Muhammad and Shakur produced the blood‑stained spears (Exhs. P. 3 and P. 4). A bicycle (Exh. P. 10) belonging to the deceased was also found at the spot and taken possession of vide memo Exh. P. J.

8. The accused pleaded not guilty but produced no defence. Manzoor, Bahab, Ali. Muhammad and Shakoor denied having produced the blood‑stained weapons and all ascribe the case to enmity on the part of one Zafarullah Khan.

9. Before coming to the merits of the case, a legal objection raised by the defence calls for discussion. As already noted, one of the items of evidence relied upon by the prosecution is the production of certain blood‑stained weapons by four of the accused. The learned Sessions Judge who tried this case had already, in the exercise of his appellate jurisdiction, dealt with two cases under the Arms Act relating to the possession by Ali Muhammad and Shakoor accused of the spears Exhs. P. 3 and P.

4. When the present case came up for hearing the learned Public Prosecutor requested that it be transferred to some other Court. In an order dated the 27th of November 1956 the learned Sessions Judge remarked:‑ "What happened was that in two separate cases, one against Shakoor and the other against Ali Muhammad under the Arms Act based upon the evidence of the said three witnesses separately recorded, a Magistrate convicted the said two accused and in appeals decided on 22nd October 1956 I accepted the appeals. The view urged by the learned Public Prosecutor is that as this Court has already formed an opinion on the evidence of A. S. I., Ali Muhammad, Bashir Khan and Kamidan P. Ws. on two of the points that the prosecution seeks to prove in this case, this Court should not try the case. If the objection now raised had been brought to my notice some time before the commencement of the trial, I would have viewed the matter in a different way. But now that I have already recorded some witnesses, I would not transfer the case to some other Court unless I find that there is a definite bar in my way to try the case. Learned Public Prosecutor has not been able to cite any authority in support of the view urged by him. On the other hand, learned defence counsel cites 6 Bom. 479, 14 All. 354, 16 Cal. 766 (F B) and A I R 1938 Lah. 346 in support of his own view. I am in a position which I would desire to avoid but in view of the inconvenience of the accused and the witnesses, I am afraid I cannot stop short and transfer the case to some other Court". For the reasons given above, the learned Sessions Judge refused the request of the learned Public Prosecutor and proceeded with the trial.

10. The authorities referred to by the learned Sessions Judge are not in point. In Empress v. Gaspar D'Silva (I L R 6 Bom. 479) sanction had been given by a certain officer in his capacity of District Judge for the prosecution of the accused for forgery and `the learned Judges held that he was not debarred by section 473 of the Code of Criminal Procedure then in force (Act X of 1872) from trying the offence in his capacity of Sessions Judge. They pointed out that the District Court and the Sessions Court were, though presided over by the same officer, essentially distinct Courts, and that, though it was no doubt desirable as a rule that a trial should not be held before a Judge who had already prejudged the question of the guilt of the accused, it would be highly inconvenient to hold that a trial for an offence committed in a civil appeal and exclusively triable by a Court of Session can in no circumstances be regarded as within the jurisdiction of the Judge who heard the appeal, even though the accused persons might be perfectly willing to be tried by him.

11. With respect to the next authority cited by the learned Sessions Judge Queen Empress v. Makhdum (I L R 14 All. 354) it may be remarked that it is somewhat surprising that it should have been cited in this case by the defence, who were anxious to avoid a transfer, since it lays down that a Sessions Judge who has directed the trial of a person for the offence of giving false evidence committed in the course of a judicial proceeding of a criminal nature before him cannot try the case himself. A distinction between this ruling and Empress v. Gaspar D'Silva is that whereas in the former the alleged forgery had been committed in a Civil Court, in the Allahabad case the offence of giving false evidence was alleged to have been committed in the course of a judicial proceeding of a criminal nature, but again the facts are not on all fours with those of the present case.

12. In Queen‑Empress v. Sarat Chandra Rakhit (I L R 16 Cal. 766) it was held, as in Empress v. Gaspar D'Silva, that a Sessions Judge was not debarred by section 487 of the then Criminal P. C. (Act X of 1882) from trying a person for an offence punishable under section 196 of the Penal Code when he had as District Judge given sanction for the prosecution.

13. The last authority cited in the learned Sessions Judge's order, Pran Nath v. Emperor (A I R 1938 Lah. 346) has even less application to the facts of the present case than the others, dealing as it does with a case in which the Magistrate was shown to have had a private interview with one of the parties and heard his version. It was naturally held that this constituted sufficient ground for transfer of the case to another Magistrate.

14. Our attention has been drawn to Ghulam Rasool v. Crown (P L D 1951 F C 62). the well‑mown case in which it was held that where a Legal Remembrancer advised the Crown to file an appeal against an order of acquittal he was, on being appointed a Judge of the High Court, debarred by the provisions of section 556 of the Code of Criminal Procedure from acting judicially in the case. There is, however; an essential distinction between the facts of the above case and that of the present. In the former the learned Legal Remembrancer must have formed his opinion as to the desirability of filing an appeal against acquittal after considering the whole of the evidence and the point for decision in the matter which subsequently came before him in his judicial capacity was exactly the same as that on which, as a law officer, he had formed his opinion, namely, whether the accused had been wrongly acquitted. In the present case, on the other hand, the evidence relating to the recovery of the spears from the possession of the appellants concerned formed only a part of the material on the basis of which the prosecution asked for the conviction of the accused, and the mere fact that the accused had been acquitted in the case against them under the Arms Act would not of necessity imply that they were also innocent of the offence of murder.

15. I am also of the opinion that the fact that he had dealt with the Arms case did not make the learned Sessions, Judge personally interested in the murder case within the meaning of section 556 of the Code of Criminal Procedure. The expression "personally interested" is somewhat difficult to define or delimit, but the reason underlying the prohibition imposed by section 556 of the Code of Criminal Procedure undoubtedly is that the Judge will, by reason of his personal interest, be biased. In Anwar v. The Crown (P L D 1955 F C 185) the proposition laid down in Khairdi Khan's case (P L D 1953 F C 223), that bias vitiates all judgments and all orders made by a Judge are void, was held to be incorrect. Munir, C. J., after holding that bias in a Judge is the paralysis, complete or partial, of judicial functions. enunciated, inter alia, the following principle:‑ "The fact that there was a paralysis of judicial faculties in a Judge cannot be proved by independent evidence but must appear from the manner in which he held the proceedings or arrived at his conclusions. Unless, therefore, it be shown that the proceedings held were not fair or, impartial or that his conclusions were wrong, an allegation of paralysis of judicial faculties would be as much out of place as the allegation that the Judge was deaf when it appears from the record that he heard the evidence and prepared a true, and faithful record of it". In the present case, there is not the slightest indication that the learned Sessions Judge was in any way affected in his decision by the conclusion at which he had arrived in the Arms Act cases.

16. It may finally be pointed out in this connection that the fundamental principle on which section 556 and similar sections of the Code of Criminal Procedure are based is the right of the accused to a fair trial, and in the present case it was not the accused but the State which asked for a transfer.

17. I would accordingly hold that the learned Sessions Judge; was not disqualified under section 556 of the Code of Criminal Procedure from trying the case.

18. On the merits, however, I am of the opinion that the conviction of the appellants cannot be safely upheld. My first reason for this conclusion is that there is a serious discrepancy between the two dying declarations, Exhs. P. K. and P. G. It has already been pointed out in paragraph 7 above that a bicycle (Exh. P. 10) was recovered at the spot. The first dying declara tion, Exh. P. K., which is also the first information report, made no mention of the vehicle, the story put forward by the deceased being that he was going to the rest house, accompanied by Asad Ali, Bashir and Ghafoor, when he was attacked by the appellants and their companions, Ghani P. W. and two other persons, Ramzan and Nawab, arriving in time to witness the occurrence. In Exh. P. G., on the other hand, the version given is that the deceased not only had the bicycle, but was actually riding it. It is further clearly implied in the opening sentences of the statement that he was alone, the witnesses coming up later to rescue him. No doubt he added in the concluding portion that Asad Ali, Bashir and Ghafoor were going with him to the rest house, but this has been obviously introduced to reconcile Exh. P. G. with Exh. P. K. There is also considerable force in Mr. Jeremy's argument that if the deceased had set out with several companions, he would have gone on foot instead of taking the trouble of wheeling a bicycle. Further, it is difficult to imagine that the deceased's companions would be able to walk sufficiently fast to keep up with a man mounted on a bicycle. It must there fore, be conceded that the recovery of the bicycle, an inconvenient one for the prosecution, lends some support to the contention of the defence that the deceased was alone at the time of his death.

19. The evidence of the eyewitnesses is also not impressive. Taking first Bashir (P. W. 7), his explanation for setting out for Vinoi Rest House with the deceased is that he wished to see the Colonization Officer to apply for the restoration of certain land which had been allotted to him, and of which he had subsequently been deprived. He did not, however, go to the Rest House afterwards, and concedes that he had not made any application for the restoration of the land up to the date on which he gave evidence, which was nearly a year after the occurrence.

20. Ghafoor (P. W. 8) has obviously no regard for the truth. When asked whether the deceased was his cousin he denied it, and contended that Hashmat was not related to him in any way. Asad Ali P. W., on the other hand, admitted that Ghafoor was the son of Asad Ali's uncle, Namdar, and as already pointed out Asad Ali and the deceased are brothers.

21. Ghani (P. W. 9) belongs to another chak about a mile to the south‑east of Chak No. 12/A. H. and states that he had gone to the latter Chak to purchase atta. It is somewhat surprising that a man who, according to his own statement, was so feverish that it took him three hours to cover a distance of two miles from Chak No. 12/A‑H. to the Vinoi Rest House, should have chosen that particular day to perform an errand which someone else could easily have done for him. He has also made contradictory statements regarding what he saw of the occurrence. In examination‑in‑chief he alleges that he saw Hashmat lying on the ground and being beaten by all six accused, but in cross -examination he denied seeing any blow delivered and states that the accused were merely standing by the deceased's side. Ghani also cannot be described as disinterested, being a mohajir from the same village as Hashmat deceased, belonging not only to the same caste (Rajput) but also the same got. In my opinion, no great reliance can be placed on this witness.

22. There remains only Asad Ali, brother of the deceased. No doubt his evidence is not to be rejected on the mere ground of his relationship to Hashmat, but when the evidence of the remaining witnesses is found to be not free from suspicion, the fact of the relationship cannot be disregarded. He has also made a statement not supported by the medical evidence, namely, that Bahab gave a thrust with his lathi at the anus of the deceased. Such an act on the part of the assailant should have left some sign of injury, but none was found, and it appears to me that the reason for the statement, which also contradicts the witness's own previous allegation that Bahab struck the deceased on the buttock, is to account for the absence of any injury on the buttock itself.

23. Taking into consideration all the above weaknesses in the prosecution case, I would hold that the prosecution case is not free from doubt, and, accepting the appeal, set aside the convictions and sentences of the appellants, who should be released forthwith if not required to be detained for any other cause.

24. The revision petition by Asad Ali automatically fails and is dismissed. ABDUL AZIZ KHAN, J.‑--I agree. A. H Appeal accepted.