P L D 1963 (W (PLP)

(i) The first of these is that the co‑accused Mitho was his Munshi and the second accused Abdul Jabbar was his friend. Jashan Mal P. W. 11 mentioned an application Exh. 21 which was produced by Ali Murad P. W. 7, Serishtedar, and which he (Jashan Mal) had made to the Sub‑Judge and F. C. M.. Jacob abad, on 7-2‑1961. showing the close association between Gopaldas and the two co‑accused Mitho and Abdul Jabbar. (ii) The second circumstance is that Gopaldas when leaving Jacobabad for Shikarpur on 11‑2‑1961 instructed his servant Lakhomal P. W. 12 that day to send Mitho and Jabbar to Shikarpur. As Lakhomal could not meet these two, Gopaldas returned to Jacobabad that evening and on the morning of the following day 12‑2‑1961 he left for Shikarpur again accompanied by Jabbar and Mitho asking Lakhomal to close the office. (iii) The third circumstance is that Gopaldas and the two co‑accused Mitho and Jabbar were seen together by Ghulam Murtaza P. W. 3 proprietor of the Sind Zamindar Hotel at Lakhi Dar, Shikarpur, at 6‑45 p.m. on the evening of the incident in his hotel taking tea together. The bill was paid by respondent Gopaldas. This witness Ghulam Murtza was put to an identification test on 14‑2‑1961 the next day but one, at which in the presence of the Head Munshi and 3rd Class Magistrate, Shikarpur, Mr. Sahib Dino P. W. 4. he successfully picked out the two accused. (iv) The fourth circumstance is that Gopaldas had visited Pershotamdas at 7 p.m. that same evening namely 12‑2‑1961 and on the pretext of its being late he induced deceased Pershotamdas to take tea with him outside his house in a public restaurant belonging to one Kanhaya Lal P. W.

9. The suggestion is that Gopaldas resorted to this trick in order to induce Pershotamdas to leave his home, appear in public and thus give Gopaldas an opportunity of showing him to his would be assailants. (v) The fifth circumstance is that the same evening after Pershotamdas had been attacked and his wife and servant boy Wazir had been pushed by the assailants into a room which led into the verandah Shrimati Sawitri and the boy Wazir Ali from this verandah saw Gopaldas standing on the top step of the stair case leading to their apartment. Shrimati Sawitri there and then called out to Gopaldas for assistance and told him that dacoits were killing her husband ; but to these entreaties he turn ed a deaf ear and descending the steps walked out of the house. (vi) The sixth circumstance is that Wazir Ali P. W. 8 was sent by Sawitri after Gopaldas to call him back. This servant met him in the street, told him of what had happened and begged of him to come to their assistance but Gopaldas went off towards the office of Mr. Sikandar Ali, Advocate. (vii) The seventh circumstance consists of the two dying declarations made by deceased Pershotamdas to his wife Shrimati Sawitri while being taken from his house to the hospital on the evening of the incident and again the following morning in the hospital. On both these occasions Pershotam das informed his wife Sawitri that Gopaldas had got him murdered. Pershotamdas further added that he had indentified his two assailants as being the same persons who were talking to Gopaldas outside the hotel at Lakhi Gate and to whom Gopal das had shown him (Pershotamdas). (viii) The eighth circumstance is to be found in the evidence of Khialdas P. W. 6 who was in attendance upon Pershotamdas while in hospital. It consists of the visit paid by Gopaldas to Pershotamdas in hospital the following morning, the accusa tions openly levelled by Pershotamdas against Gopaldas and of Gopaldas quietly going away instead of repudiating and denying these allegations. It also consists of Pershotamdas calling Gopaldas, of Khialdas going after Gopaldas and calling him and telling him Pershotamdas evaded him not but Gopaldas went away saying he was going to the Railway Station. It is said by Khialdas that as soon as Pershotamdas recognized the voice of Gopaldas he told him that he did not care for his friendship of ten years during which Pershotamdas had helped him financially every time and yet he (Gopaldas) had got Pershotamdas murdered. (ix) The ninth circumstance is that when Chandumal P. W. 2 went to the Lakhi Dar Police Station to lodge his F. I. R. he saw Sabhaldas, retired Sub‑Inspector and father of Gopaldas and Chimandas, brother of Gopaldas and Prosecuting Sub Inspector of this very police station sitting at this police station. (x) The tenth circumstance is the absconcion of Gopaldas from Shikarpur to Jacobabad and his arrest at Kohlpur a few stations away from Quetta on 16‑2‑1961 by A. S. I. P. Munawar Hussain P. W. 14. (xi) The eleventh circumstance is that in the register of the Musafir Khana on Jinnah Road, Quetta, where respondent Gopaldas stayed from 14th to 16th February 1961, he mentioned his father's name as Kalyandas and not as Sabhaldas. (xii) The twelfth circumstance is that in this very register Gopaldas had shown that he had come from Jacobabad and was returning to Jacobabad. Instead of going on 16‑2‑1961, the day A. S. I. P. Munawar Hussain arrives in Quetta in search of him, Gopaldas leaves this Musafir Khana for Kohlpur, a few miles away from Quetta. There is also the added circumstance so far as this register is concerned that Gopaldas omitted to sign it.

5. Of these twelve circumstances we observe that some of them appear to have escaped the attention of the trial Judge. Thus, circumstance No. VI of Wazir Ali the servant going after Gopaldas and entreating him in the street to come to the assistance of his master has not been mentioned by the trial Judge. The second dying declaration made by Pershotamdas to his wife Sawitri in hospital also does not appear to have been noticed in the judgment of the Sessions Judge. Again, the circumstance of Pershotamdas openly accusing Gopaldas in hospital the following morning of down right ingratitude, of getting him murdered and of Gopaldas remaining quiet and meekly slinking away without replying though called by Pershotamdas and again by Khialdas on behalf of Pershotamdas does not appear in the judgment of the lower Court. The ninth circumstance of Gopaldas being seen at Lakhi Dar Police Station with his brother Chimandas and his father Sabhaldas that same evening when Chandumal went there to record his F. I. R. has also escaped the attention of the trial Judge. In like manner, the last two circumstances Nos. XI and XII of Gopaldas showing his f4ther's name wrongly in the register of the Musafir Khans Exh. 43, also wrongly showing that he was returning to Jacob abad and his omission to sign this register appears to have escaped the attention of the trial Judge.

6. Nor are we satisfied with the reasons assigned by the trial Judge for rejecting such of these circumstances as have occurred to him and found place in his judgment. Our attention was invited in this connection to a very recent case of our Supreme Court in Abdul Rashid and others v. The State (P L D 1962 S C 249). This was also a case in which the High Court had accepted a revision against an acquittal and had remanded the case for further trial, in respect of offences under sections 392, 307, 324, 148 and 149, P. P. C. of which offence the five accused had been acquitted at the trial. Their Lordships of the Supreme Court upheld the order of the High Court stating that‑ "We are clearly of the opinion having regard to the nature of the treatment given by the trial Judge to the evidence in the case that the order of the High Court directing the retrial so that the evidence may be considered from a fair and impartial point of view is entirely correct." Their Lordships further went on to remark and we may with great respect employ the same words when dealing with the judg ment of the trial Judge in this case so far as the respondent Gopaldas is concerned that‑ "We think that it is not going too far to say that there is scarcely a single conclusion reached by the trial Judge which is supported by a balanced statement of the relevant facts, or by a truly reasoned argument."

7. We also found that there are certain circumstances among the twelve mentioned above which were not put to the respondent Gopaldas in his examination under section 342, Cr. P. C. The two dying declarations made by Pershotamdas to his wife Sawitri when leaving his house for the hospital and again the following morning in the hospital, have not been put to respondent Gopal das by the trial Judge. Then the circumstance of the accusations openly made by the Pershotamdas to Gopaldas to his face in the hospital the following morning and Gopaldas's silence has not been put to him. Similarly, circumstances Nos. IX, XI and XII mentioned in the above paragraph as having escaped the attention of the trial Judge have also, in consequence, not been put to Gopaldas.

8. In view of all the above circumstances appearing on the record of this case against the respondent Gopaldas, the fact that some of them have not occurred to the trial Judge and, therefore, find no mention in his judgment and in consequence have not been put to the respondent in his examination under section 342, Cr. P. C., the fact that such of these circumstances as have occurred to the trial Judge have been dealt with by him inade quately and are unsupported by a balanced statement or reasoned argument, and above all the fact that the total or cumulative effect of these circumstances has not at all been weighed and assessed by the trial Judge, there is no alternative for us but to direct a retrial of responding Gopaldas for the murder of deceased Pershotamdas. We, have, in this judgment, scrupulously refrained from giving an expression to any opinion on the merits of the case for or against respondent Gopaldas and we would before parting with these papers issue the added caution to the Sessions Judge who is to try this case whoever he may be but not Mr. Ghulam Hussain S. Ansari that nothing that we have said in this order should be treated as binding on him and he should reach his own conclusion on the evidence led before him in this matter. The respondent No. 1 Gopaldas will surrender to his bail before Sessions Judge, Sukkur, on Saturday 20th October 1962, and it will then be for that Judge to decide for himself what action he should take with regard to the respondent. K. B. A. Retrial ordered.