P L D 1964 Supreme Court 81 (PLP)

S. A. RAHMAN, J.‑Mitho, Abdul Jabbar and Gopaldas the last‑named being a Pleader of Jacobabad, were tried jointly for various offences, including murder and conspiracy to murder, by a learned Additional Sessions Judge, Sukkur. Gopaldas was acquitted of all charges. Abdul Jabbar was convicted only under sections 452, P. P. C., and 19‑E of the Arms Act. He was sentenced for the former offence to three years' rigorous imprison ment and for the latter, to one year's rigorous imprisonment, the sentences being concurrent. Mitho was convicted under section 302, P. P. C. and sentenced to death. He was further convicted under section 452, P. P. C. and sentenced to rigorous imprisonment for three years. The convictions and sentences of Mitho were upheld on appeal and reference, by the High Court of West Pakistan, Karachi Bench. The State filed an appeal against the acquittal of Abdul Jabbar on the charge of murder. There was also a private revision petition preferred by Shrimati Savitri, wife of the deceased, challenging the acquittal of Gopaldas. The High Court allowed the appeal against Abdul Jabbar, convicted him under sections 393/397, 449 and 302 read with section 34, P. P. C. and maintained his convictions under sections 452 P. P. C. and 19‑E of the Arms Act. For the offences under sections 393/397 and 449, P. P. C., he was awarded sentences of seven years' rigorous imprisonment, and five years' rigorous imprisonment respectively and for the offence of murder, the capital sentence was imposed on him. The sentences of imprison ment were directed to run concurrently, if the death sentence was not executed. At the same time, the learned Judges allowed the revision petition against Gopaldas and directed his retrial by a Judge other than the previous trial Judge. Special leave to appeal was granted on a Jail Petition submitted by Abdul Jabbar on the ground that he could appeal, as of right, from the conviction recorded by the High Court. Gopaldas's petition for special leave to appeal was also admitted to consider whether the f upon by the High Court against him could circumstances relied form the basis of conviction. The deceased Pershotamdas was a student in a College, but he was also carrying on money lending business. He lived in Shikarpur where apparently the father of Gopaldas also resides. Gopaldas was said to be on visiting terms with Pershotamdas and therefore knew that the deceased kept a lot of money in his safe. Mitho is said to be a Munshi of Gopaldas, and Abdul Jabbar a friend of his. The main motive for the incident in which Pershotamdas was killed, is said to have been robbery. On the 12th of February 1961, Abdul Jabbar, Mitho and Gopaldas were seen taking tea at the Zamindar Hotel, belonging to Ghulam Murtaza, P. W., at Shikarpur at about 6‑45 p.m. Shortly after, Gopaldas paid a visit to Pershotamdas at the latter's house and took him out to the hotel of one, Kanhayalal, for tea, on the representation that it might take time for Per shotamdas to get tea ready at his house, whereas Gopaldas was in a hurry to catch a train. It is alleged that this was a device by which Gopaldas showed Pershotamdas to his co‑conspirators, Mitho and Abdul Jabbar, who had not seen him before. Per shotamdas returned to his house after taking tea. At about 8 p.m., Mitho and Abdul Jabbar proceeded towards the house of Pershotamdas. On inquiry from Chandumal, P.W., who was sitting in the lane outside his house, they were pointed out the house of the deceased and entered it. The deceased was sitting with his wife, Shrimati Savitri, and his boy servant, Wazir, on the first storey of the house. The two accused ascended to the first storey, Mitho had a dagger with him while Abdul Jabbar was armed with a pistol. Mitho placed the dagger on the chest of Pershotamdas and called upon him to surrender the keys of his chest. The deceased pushed aside the dagger and on this Mitho is said to have felled him down to the ground and to have stabbed him in the abdominal region. Savitri and Wazir raised an alarm. Abdul Jabbar pointed his pistol towards them and forced them to retreat into a room and to keep quiet on pain of been killed. Chandumal was attracted by the noise, and on seeing him approach, the accused ascended the staircase to the second storey of the house and seeing no way of escape shut themselves up in a room. On Savitri's request, Chandumal ran to obtain help from the Police. It is alleged that Gopaldas had also been seen by Savitri and Wazir, standing at the top step of the second staircase, leading from the eastern entrance of Pershotamdas's house, just before Chandumal came up to the spot. Savitri had appealed to him for help against the robbers who were murdering her husband but Gopaldas is said to have walked away unconcerned, without saying anything. Chandumal lodged a report at Lakhidar Police Station situated at a distance of 3/4th of a furlong at 8‑15 p.m. The police and other people came up and caught Mitho and Abdul Jabbar red‑handed from the room on the second storey of the deceased's house in which they had closeted themselves. The dagger was taken from Mitho's possession and the pistol from that of Abdul Jabbar. The stains on the dagger were found to be of blood but their origin from a human source could not be established as they had disintegrated by the time of chemical analysis. The injured Pershotamdas was carried to the Civil Hospital, but he died there next day, at 12‑50 p.m. An attempt was made to record his dying declaration by the Sub‑Inspector, but the statement remained unfinished as the deceased lost consciousness. In this statement the deceased was able to describe the incident from the moment of entry of the armed robbers till he was stabbed. He stated that he then went down the staircase raising an outcry. At this juncture he is said to have become senseless. There was no mention of Gopaldas in this statement. On the 14th of February 1961, Mitho and Abdul Jabbar were included in an identification parade supervised by the Head Munshi, who is a Third Class Magistrate at Shikarpur. Ghulam Murtaza picked out the two men as the companions of Gopaldas, who had taken tea with him at his hotel, on the day of occurrence. A search was made for Gopaldas and he was eventually arrested from a temple at Kolhpur near Quetta, on the night of the 16th February 1961. He had apparently stayed at Quetta in a Dharamsala where he had gone on the 14th of February. He explained in the trial Court that he had gone to attend the Shevtri Fair at the old temple in Kolhpur. The defence of the appellants was a simple denial of the prosecution allegations against them. Gopaldas ascribed his implication in the case to the machinations of one, Ramchand, a maternal uncle of the deceased, to whom he had given serious offence by refusing to marry his daughter. No evidence was how ever called in defence. The case against Abdul Jabbar stands practically on the same footing as that against Mitho who had not approached this Court for special leave. The facts as stated by the prosecution were accepted even by the learned Sessions Judge. He, however, gave him the benefit of the doubt in respect of the murder charge mainly on the plea that be did not share a common intention with Mitho to kill Pershotamdas. In his view the common intention of these two accused, did not exceed the commission of a robbery. Since this appellant had caused no injury to the deceased or to any other inmate of the house, he therefore absolved him of responsibility for the murder. Even in respect of the robbery, he held that the matter did not proceed beyond the stage of preparation and did not even amount to an attempt to commit robbery. The High Court agreed with the trial Judge that the witnesses of the incident, namely, Mst. Savitri and Wazir, P. Ws. were reliable so far as details of the incident itself were concerned. They had no enmity against Mitho or Abdul Jabbar who were not even known to them previously. There can be no doubt that Mitho and Abdul Jabbar were apprehended from the house of Persho tamdas and that a dagger was recovered from Mitho and a pistol from Abdul Jabbar. They failed to furnish any explanation as to why they had entered the house of Pershotamdas in armed condition and in fact they had no explanation to offer why they had gone to Shikarpur at all. They belonged to Jacobabad. In respect of their complicity in the incident that took place at the house of Pershotamdas, therefore, their participation was established beyond reasonable doubt by disinterested testi mony. We see no ground to review that evidence in this Court. The principal question that arises in the case of Abdul Jabbar is whether the High Court were right in holding that Abdul Jabbar was also guilty of the murder of Pershotamdas. On a careful consideration of the evidence on record, we see no ground to differ from the appraisal of that evidence by the High Court. Both Mitho and Abdul Jabbar were armed with deadly weapons, ostensibly to commit robbery in the house of Pershotamdas. The nature of the weapons carried by them would legitimately lead to the inference that they were prepared to use them if resisted in their adventure. Mitho actually stabbed the deceased fatally when he was thwarted in his purpose. Simultaneously, Abdul Jabbar held off the other inmates of the house by pointing a pistol at them and sought to suppress their effort to seek assistance from outside. This was a sufficient indication that Abdul Jabbar associated himself with the act of murder commit ted by his co‑accused Mitho and it follows that he shared a common intention with him as far as the killing of Pershotamdas was concerned. Section 34, P. P. C. was attracted to the case and the conviction of Abdul Jabbar under section 302 read with section 34 P. P. C. does not therefore appear to us to be open to exception. We consider it unnecessary to express any opinion as to the soundness or otherwise of the opinion expressed by the learned Judges as to the construction and scope of section 34 P. P. C , in this connection. In respect of the charge of robbery also, we find ourselves in agreement with the High Court that the affair had advanced far beyond the stage of preparation and that an active attempt was made to extort money from the inmates by threat of violence. Indeed, Pershotamdas lost his life in resisting the robbery. But for the fact that hue and cry was raised, which attracted other people to the spot, the appellant and Mitho might have succeeded in their nefarious design. The conviction for the attempted robbery also therefore calls for no interference by this Court, in the case of Abdul Jabbar. The rest of his convictions too are supported by good evidence on the record which was accepted by the Courts below. All his convictions must therefore be maintained intact. In view however of the circumstances that his liability for the murder of Persho tamdas was constructive in character, that he personally refrained from using his revolver or pistol against any inmate of the house, that he was acquitted of murder by the trial Judge and convicted of that offence for the first time by the High Court and that more than two years have elapsed from the time of the occurrence, we consider that the ends of justice would be met by reducing his sentence under section 302/34 to transportation for life. We order accordingly and direct that this sentence would run con currently with his other sentences which shall be maintained intact. His appeal is dismissed subject to the above modification. We next come to the case of Gopaldas. The learned Judges of the High Court have listed 12 circumstances which went against him in this case and which, in their opinion, would justify his retrial on the ground that some of them had not been taken into consideration by the learned trial Judge. We will deal with them in seriatim. The first circumstance in this context is the fact that Mitho is a clerk of Gopaldas and Abdul Jabbar is his friend. This seems to be established by good evidence on the record, but by itself would not suffice for holding that he was in conspiracy with Mitho and Abdul Jabbar either to commit robbery at the house of Pershotamdas or to encompass his death. Indeed, it is not suggested on behalf of the prosecution that Gopaldas' primary intention was to get Pershotamdas killed. All that is alleged against him is, according to the story that was brought out in the evidence, that he was a greedy person who had conceived a design to enrich himself by having robbery committed at the house of Pershotamdas who was a monied man. The fact that a connection existed between Mitho and Gopaldas appellant indeed might have led the prosecution to suspect the latter of a hand in the matter. This circumstance was duly noted by the learned trial Judge. The second circumstance that was pressed into service in the High Court was that according to the statement of Lakhomal, P. W., who claimed to be an employee and clerk of Gopaldas, the latter had given instructions to him to send Mitho and Abdul Jabbar to Shikarpur, when he himself went to that place. As Lakhomal was not able to convey his instructions to these people in time, they could not leave for Shikarpur. Lakhomal deposed that Gopaldas himself came to Jacobabad and took them away. The evidence of Lakhomal was not accepted by the trial Judge for what seem to be good reasons. He was almost an illiterate person and it is difficult to believe that he was employed as a clerk by Gopaldas, Pleader. He admitted that he was now an employee of one, Jashanmal, who was proved to be inimical to the appellant Gopaldas. The most significant fact in his case was that Lakhomal was not even examined by the Police as a witness and for the first time he was called to depose on behalf of the prosecution in the course of proceedings before the committing Magistrate, at the instance of the Public Prosecutor, some three months after the occurrence. We therefore consider that the trial Judge was justified in not attaching much importance to this circumstance. The third, fourth, fifth and sixth circumstances may now be considered together. These are that he was seen with Mitho and Abdul Jabbar at Ghulam Murtaza's hotel taking tea shortly before the occurrence, that he then also took out Gopaldas on the pretext of taking tea at Kanhaya Lai's hotel, that he was seen on the top step of Pershotamdas's house just when the robbery and murder was being committed and declined to help the inmates and that when Wazir at the behest of Savitri went to call him from the lane, he again refused to go to the assistance of his friend Pershotamdas. Out of these circumstances, the third, fourth and fifth have been explicitly dealt with in the judgment of the learned trial Judge. The sixth one about Wazir's mission to Gopaldas is not specifically referred to therein but it impliedly comes in for comment. The learned trial Judge's finding was that he found it difficult to believe that Gopaldas, if he was actually the moving figure behind the scenes, should have exposed himself to public view, in the company of Mitho and Abdul Jabbar, shortly before the incident and thus created evidence against himself. He is a legally trained person and knew the value of the evidence that could be given against him in such circumstances. The allegation that Gopaldas was seen on the top step of the house of Pershotam das was not mentioned in the first report lodged at the Police Station by Chandumal, although, if Savitri is to be believed, she had told Chandumal about Gopaldas's presence before he left for the Police Station. There is thus reason for thinking that Gopaldas's presence at the house of the deceased at the time of the occurrence was probably an after‑thought on the part of Savitri. Even if it may be accepted as true that Gopaldas had taken tea with Mitho and Abdul Jabbar at the hotel of Ghulam Murtaza or that he had visited Kanhaya Lal's hotel in the company of Pershotamdas that evening, no sinister meaning need be attached to these facts. Shikarpur was the place where his parents' house was situate. Consequently his visit to that place should not evoke adverse comment. Mitho was his clerk and there would be nothing extraordinary for the three taking tea together, considering that Abdul Jabbar was also a friend of his. The suggestion more over that Gopaldas had arranged to show Pershotamdas to his confederates is unconvincing, as the ostensible object was not to procure his murder but to rob him of his money. He could have been much more helpful by pointing out the house of the victim to them instead of leaving them to find their way to it by inquiries from Chandumal P. W. At the most the presence of Gopaldas in the town at a time when the crime was committed, might engender n a suspicion against him, but suspicion even though strong, cannot be accepted by itself as incriminating proof. The seventh circumstance mentioned in the High Court order relates to two oral dying declarations said to have been made by the deceased to his wife, charging Gopaldas with complicity in the affair. This evidence was disbelieved by the trial Judge on the ground that the doctor's testimony and the evidence of the Sub-Inspector belied it. The doctor deposed that when the injured man was brought to the hospital, he was unconsious, that he had been given a drug during the night and under its effect, he was unable to talk, that next day also till about 11‑30 a.m., though he had visited him every two hours, he was not in a position to speak. The two oral dying declarations are said to have been made between the moving of the deceased to the hospital and about 11 a.m. next morning. We are inclined to be sceptical about the genuineness of these dying declarations. In all probability, Pershotamdas was unconscious throughout this period. The Assistant Sub‑Inspector, Munawar Hussain, P. W. 14, who was the officer who reached the spot immediately after the occurrence, also stated that when he saw the injured man in the house, he was not in his senses. Even Chandumal, P. W., admitted that when he saw the deceased in his house, soon after the occurrence, he did not tell him that Gopaldas was involved in this affair. The eighth circumstance was an oral dying declaration of the deceased said to have been made in the hospital on the day following the occurrence to Khialdas or in his presence, in which he had charged Gopaldas with not having cared for his long standing friendship with him and to have procured his murder. Khialdas's version is that Gopaldas had come to the hospital at that time and that the deceased wanted him to come near him but that Gopaldas; on hearing the accusation, slipped away. This allegation too was considered and rejected by the trial Judge for very good reasons. In the first place, the medical evidence was inconsistent with his having made any such dying declaration to Khialdas at the time that this witness alleged. Secondly if Gopaldas had visited the deceased in the hospital, it would be very venturesome on his part to do so and the wonder is that he should have been allowed to depart unmolested from there. By that time, at least, Savitri's story should have been known to Khialdas as well as to the deceased, about the part played by Gopaldas. The very fact that he was, according to Khialdas, allowed to go away, without interference, contains intrinsic evidence of the falsity of the allegation. The ninth circumstance that Gopaldas was seen at the Police Station along with his father who is a retired Sub‑Inspector and his brother who is a P. S. I. at Shikarpur, when Chandumal went to lodge a report there, is open to grave doubt. If Gopaldas had been there and some allegation had been made against him, he would have been detained by the Police. In any event, even if the part ascribed to him had come to the notice of the police, shortly after that, they could have apprehended him in Shikarpur itself. The suggestion that the influence of his well‑placed relatives saved him, is not convincing and the learned trial Judge's view rejecting this evidence could not be said to be unreasonable. The alleged absconcion of Gopaldas and his arrest at Kolhpur constitute a suspicious factor no doubt. But it is not shown that he concealed his identity while staying at Quetta. It was proved by documentary evidence that he was present in Jacobabad on the day following the occurrence, namely, the 13th of February, where he had attested several affidavits. While staying at the Quetta Dharamsala, he had, given his correct name and address though his father's name occurring in the register of that institution, was wrongly recorded as Kalyandas instead of Sanwaldas. The entry was made by the keeper of the Dharamsala and not by Gopaldas himself and he may have made a mistake in that connection. If he had wanted to avoid his identity being known, he would not have given out that he was Gopaldas, a Pleader of Jacobabad. These particulars were enough for tracing him out. The circumstance therefore is not of an unequivocal character. This also disposes of the eleventh and twelfth circumstances which consist in Gopaldas giving wrong parentage to the Dharamsala Keeper, further that it was mentioned in the Register that he was coming from Jacobabad and would be returning to that place and that he failed to sign the Register. Most of these circumstances detailed above have been duly dealt with by the learned trial Judge who gave good reasons for rejecting the relevant evidence. On a reading of the evidence on record, the impression is clearly gained that the case against Gopaldas was being built up gradually, by stages. It is also noteworthy that the State did not think it fit to appeal against the acquittal of Gopaldas in this case to the High Court. This fact clearly implies that it was considered at the time that this was not a fit case for an acquittal appeal, or that even if there was a retrial, there was very little chance of a conviction. Somewhat inconsistently with that position, however, the learned Additional Advocate‑General who appeared for the State before us, tried to support the order of the High Court. After giving our best consideration to the facts adduced against Gopaldas, we are unable to sustain the order of retrial passed by the High Court. We consider that the course prescribed by the High Court would in all probability lead to a repetition of what took place in the trial Judges Court. There is not enough acceptable evidence to sustain the conviction of Gopaldas on the material available and his acquittal by the trial Judge was supported by good reasoning. We therefore allow his appeal, set aside the order of the High Court and restore that of the trial Judge so far as he is concerned. K. B. A.