1. Criminal Appeal from the judgment and order of the Court of the Special Tribunal IV, Trimulgherry, dated 11.9.1950 in Cr. Case No. 1 of 1358 Fasli on the file of that Court, and on a refrence made by the Hon'ble the Chief Justice dated 13.4.1951, there being a difference of opinion between the Hon'ble Judges constituting the Devision Bench.
This case has assumed much more importance than the general class of cases of murder which we come across every-day because of the political background behind it and because there was implicated in it the most powerful figure in Hyderabad during the period prior to the Police Action.
2. The motive alleged for the crime by the prosecution is that one Shoebullah Khan who was editing a daily Newspaper called 'Imroze' was repeatedly publishing articles against the policy of Syed Mohamad Khasim Razvi, the leader and President of the Itehad-ul-Muslim, which was the most powerful organization exercising enormous control over the administrative machinery in the Hyderabad State. Its ultimate aim was to keep the Hyderabad State as an independent unit and not allow it to accede to the Indian Union. Shoebullah was opposed to this policy and it is stated that he gave vent to his views in his daily Newspaper 'Imroze'. It is stated that Khasim Razvi having got annoyed at the repeated attacks by Shoebullah Khan against him and his policy decided that Shoebullah Khan should be got out of his way. With a view to achieve this object he sent for one of his Sattelites, Syed Khader Mohiuddin Aseer, who was the President of Ward A of the Ittehad-ul-Muslimin and consulted him as to what steps should be taken to see that Shoebullah Khan was put out of the way.
3. The whole story about how the conspiracy was hatched and what stages it passed through has been deposed to by one Khader Mohiuddin Aseer, one of the accused, who turned an approver.
4. (a) According to the above witness the first talk that took place about this affair was somewhere in February 1948 between Khasim Razvi and the President of the A Ward Branch of tha Ittehad-ul-Muslimin, who is P. W. 1. After having sounded P. W. 1 about the feasibility of making arrangements for putting Shoebullah Khan out of the way, Khasim Razvi appears to have kept silent for about two months and in April or May 1948, when Aseer met Razvi at Darus-salam, the headquarters of the Itehad-ul-Muslimin, Khasim Razvi again broached the subject and asked Aseer if he had considered about the matter that he had mentioned to him some time ago. Aseer, it is stated, was not very enthusiastic about this affair and appears to have replied that it would not be possible for him to undertake this most inhuman task as he was a man with a tender heart and further that he had his old parents, children and a big family to support. Khasim Razvi, however, said that he did not want that Aseer, P. W. 1, himself should undertake the murder and that it could be achieved through the instrumentality of a Razakar of the locality.
(b) After this incident also there appears to have been lull. Somewhere about the beginning of August 1948, after Khasim Razvi returned from his tour of Hingoli, he is said to have sent for one Syed Kadirullah, P. W. 27, to find out whether it would be possible to see that the murder was committed. Khasim Razvi was disappointed when Syed Kadirullah expressed his inability to undertake the task.
(c) Thereupon, it Is stated that on 13.8.1949 at about 10 P. M., Khasim Razvi sent for Aseer to his bungalow and had a discussion with him there about this affair. This is the first stage when some decision appears to have been taken as regards the plan to be adopted in the execution of the task. Khasim Razvi was in conversation with one Azimuddin, the Chief Engineer, who was seated there with a stinging in his hand. Aseer went to see Razvi at this time and Razvi, it is stated, called him into his drawing room and told him that the matter could not afford to wait any longer as things had come to a crisis. Telling him he asked his A.D.C. Sajjad Hussain to give his pistol to Aseer and when Sajjad Hussain said that there would be no other pistol for use, Razvi directed Vazir Mohammed Khan, his Private Secretary to give his pistol to Sajjad Hussain. Thus closed the first stage of the conspiracy.
(d) The second stage in the conspiracy was on the very next day when Aseer, P. W. 1, is said to have sent for one Syed Mustafa 'alias' Mustoo, P. W. 4, through Syed Abdul Khader, P. W. 2, and told him that he should somehow see that Shoebullah Khan was murdered as those were the orders of the President, Khasim Razvi. Mustoo merely said that he would consider about the matter and let him. know.
(e) The third stage was on 15.8.1948 when Gulam Yazdani, P. W. 10, who was the District Commander of the Razakars of the locality, came to see Aseer and at this visit he objected to Mustoo, a razakar of the locality, being used for the murder of Shoebullah Khan. He said that they could very easily be identified if they committed the murder. Instead he suggested that it might be entrusted to others who were prepared to lay down their lives and in this connection he is said to have mentioned the name of Abdul Munim Khan, A-2, as one of such desperadoes.
(f) The fourth stage was on 16.8.1948, when Abdul Munim Khan, A-2, for the first time, went to Aseer's house (evidently having been sent by Gulam Yazdani), it was at this time that Aseer asked him to swear by the Koran and take an oath of secrecy and conveyed to him what Khasim Razvi told him. As to what Abdul Munim Khan said on that day is not quite clear, but it is stated that Aseer asked him to come the next day for a Pistol. As per the desire of Aseer, Munim Khan, A-2, went to Aseer's house the next day (this would be 17.8.1948). Somehow or other the pistol was not handed to Munim Khan that day also; what the purpose underlying the putting off of the handing over of the pistol was, one is not able to conjecture.
(g) The next stage after this was when Imam-ullah Husaini and Abdul Aziz Hashimi (father of Mohsin Raza) came to Aseer's house. At this time, according to the story of the prosecution, Abdul Aziz Hashimi is said to have offered the services of his son, Syed Mohsin Raza, for this task and he is said to have told Aseer that his son would work conjointly with Munim Khan, accused 2, in this task. This takes us to the 18.8.1948.
(h) The momentous day of the conspiracy, when it appears to have reached its final stage, was the night of 19.8.1948. On this day Imam-ullah Husaini, Abdul Aziz Hashimi, Mohsin Baza and Munim Khan are said to have gone to Aseer's house and they all discussed about the plan to murder Shoebullah. Khan. It is stated that at this stage another person Syed Sajid Ali, P. W. 5, who is the brother-in-law of Aseer came there. On seeing him this party stopped the conversation and a little later Aseer took Munim Khan into the adjoining bed room and taking out a pistol from his almirah, handed it over to Munim Khan just near the door between the drawing room and the bed room. I would have occasion to deal more in detail about this handing over of the pistol and how it was designed that Sajid Ali should not know about this. Mohsin Rasa and Munim Khan appear to have gone away while others also appear to have left soon after the handing over of the pistol. The conspiracy being over, it is stated that A-2 and Mohsin Raza started on their task in right earnest and they first went to the office of 'Imroze' where Shoebullah Khan is said to have been working every-day till 1 A.M. and peeped through the windows to see if Shoebullah Khan was there, but not finding him there they-returned to Aseer's house and told him that Shoebullah had not come. The pistol that was taken from Aseer was also returned to him.
(j) The day following, namely, 20.8.1948 in the evening at about 6 P.M. again Munim. Khan and Mohsin Raza came to Aseer's house, demanded the pistol and after getting it, went again to the 'Imroze' office and to their disappointment again they found the office closed. They went back again to Asear's house to report as to what had happened.
(k) Then came the next day, viz., the fateful day, 21.8.1948. It was at 7 P.M. on this day, it is stated that Munim Khan went to Asenr's house and finding that Mohsin Raza had not come informed Aseer to send him along to the cross-roads near the 'Imroze' office. Soon after Mohsin Raza met Aseer. He was directed to join Munim Khan at the cross-roads.
(1) An hour later at about 8 P.M. the prosecution story goes on to say that Munim Khan, Zamiruddin, one of the absconding accused, Mohammad Azeezuddin, P. W. 8 and one Makdoom Pershad, were returning towards Lingam-palli cross-roads from Kachiguda after having had a walk when it is stated that Munim Khan called Zamiruddin aside and asked him to join him and Mohsin Raza in attacking Shoebullah Khan. Zamiruddin, it is stated, readily agreed and joined.
(m) Even at this stage they were not quite ready to start their task. They found that Mohsin Raza had no sword with him and they, therefore, went on a bicycle to fetch the sword. After getting the sword the three accused appear to have marched on their dastardly task, viz., to put an end to the life of Shoebullah Khan.
(n) They went to the house of Shoebullah Khanand knocked at the door and a young girl, who has not been called by the prosecution, told them that Shoebullah was not in the house. They appear to have been loitering on the road after this and it was at about 1 A.M., on the night of the 21.8.1948 they found Shoebullah Khnn and his brother-in-law, Ismail Khan, coming out of their office going along; towards their house which is just about 200 yards away.
(o) After they approached the gate of the house, the accused greeted them and Shoebullah Khan and Ismail returned their greetings. The Reused is then said to have enquired from Shoebullah Khan whether they had seen some three people running. Just as this conversation was going on Munim Khan, accused 2, it is stated, went behind Shoebullah Khan and fired the pistol. Immediately Shoebullah Khan fell down and Ismail Khan, his brother-in-law, ran towards his drawing room (which is opening on the main road) to get a rifle, and Munim Khan pursued him and inflicted serious injuries with the sword, with the result that the left hand and the little finger of his right hand were cut off and Ismail Khan also fell down.
(p) After this incident the three accused are said to have fled wending their way through lanes and gone to Aseer's house to report to him that they had completed the task entrusted to them. These persons appear to have deposited the pistol and the sword in Aseer's house and gone to their respective houses. This, in brief, is the story of the murder of Shoebullah according to the prosecution.
5. It is stated that Shoebullah Khan and Ismail Khan were hurried to the hospital and Shoebullah Khan appears to have succumbed to the injuries by 5 A.M., on 22.8.1948, while Ismail Khan was admitted into the hospital and after treatment for about 20 or 25 days he was discharged. Ismail Khan's statement was recorded immediately after the occurrence on 22.8.1943. In his statement he is said to have stated that one of his assailants was one of the brothers of Dastagir, Vakil, by name Gulam Yazdani or Gulam Samdhani. On this information the police arrested, on 22.8.1948, Gulam Yazdani and Gulam Samdhani. On 25.8.1948, the police held an identification parade wherein Gulam Yazdani and his two brothers Gulam. Subhani and Gulam Samdhani were put in and Ismail Khan, the injured, was asked to identify the man who inflicted injuries on him and who shot Shoobullah Khan, and at this parade Ismail Khan stated that he could not find his assailant in the group and so Gulam Yazdani and his brothers were released.
6. Between 25.8.1948 and 5.10.1948 there does not appear to be any event worth mentioning and it was on 5.10.1948 that A-2, Abdul Munim Khan, was arrested The police held another Identification Parade on the same day under the supervision of a Magistrate, and it was at this parade that Ismail Khan is said to have identified Abdul Munim Khan. A-2, as the person who shot at Shoobullah Khan and inflicted injuries on him. Mohsin Raza, who is said to have been with Abdul Munim Khan in the murder was arrested on 10.10.1948 Khader Mohiuddin Aseer the person who figured prominently in the plot and the conspiracy to murder was arrested on 15.10.1948 and in 30.10.1948 he was produced before a Magistrate who tendered Dardon to him. He turned an approver and has been examined as P. W. 1 in the case.
7. The prosecution took time after time to file the charge-sheet and this covers a period of 8 months from 29.11.1948 to 27.7.1949 as evidenced by Ex. D. 27. The challan was filed against five persons of whom two were reported to be absconding, charging them under Sections 243, 248, 66 and 77, Hyderabad Penal Code.
8. The case came before the Special Tribunal 'IV and before the Tribunal 42 witnesses were examined on behalf of the prosecution and as many as 103 exhibits were filed. The defence led no evidence. The Special Tribunal after a protracted enquiry found all the accused guilty; accused 1 was found guilty under Sections 77(b) and 243 read with Section 66, Hyderabad Penal Code; accused 2, Abdul Munira Knan, guilty under Sections 77(b) and 243 and also 243. read with Section 7, Hyderabad Penal Code and accused 3 was found guilty under Sections 77(b) 243 and also 248, read with Section 7, Hyderabad Penal Code, and they were sentenced to different terms of imprisonment on the different counts. All the three accused were sentenced to transportation for life and the case, therefore, came before the Division Bench for confirmation of the sentence and there were also appeals filed by the accused against their conviction which were also heard by the Division Bench. A revision application was filed on behalf of the Government praying for enhancement of the sentences.
9. The Division Bench held in so far as Syed Mohammad Khasim Razvi and Mohsin Raza were concerned that the prosecution had not made out a case against them and therefore acquitted them of all the charges while as regards A-2, Abdul Munim Khan one of the Judges, the Chief Justice was of the opinion that the identification of A-2 was not satisfactory and did not carry conviction and therefore ha acquitted A-2 as well, while the other Judge, Khaliluzzaman Siddiqi J., held that he had no doubt about the guilt of this accused just as he had doubts about the gui.1t of accused 1 and 3 and being satisfied about the complicity of A-2 in the crime confirmed the sentences passed by the Special Tribunal against accused 2, Abdul Munim Khan.
10. After this there having been a difference of opinion between the two Judges constituting the Division Bench with regard to on of the accused, the learned Chief Justice directed that the case be placed before me to be dealt with according to law and the case was, therefore, put up before me.
11. A point of law was argued at this stage by the Advocate General and the Counsel for the accused as to whether I could hear only the case relating to accused 2 or whether, under the law, it would be deemed as though the whole case was before me. After heaving the arguments of the respective Counsel in detail, I gave my finding on 13.5.1951 that I was only competent to hear the case of Abdul Munim Khan, accused 2.
12. After this finding the case came up for hearing on 13.8.1951 and was heard by me from day to day.
13. A legal objection was raised by the Counsel for the defence with regard to the jurisdiction of the Special Tribunal to try this case. The learned Counsel urged in the first instance that the Special Tribunals Regulation itself was void as it infringed Article 14 of the Constitution of India. All Constitutions have recognized the power of the legislature to make classification of Courts resting upon reasonable grounds of distinction. It does not offend against the guarantee of equal protection of the laws envisaged by Article 14 of the Constitution of India. Equal Protection of the laws is ensured when the laws operate alike on all subjects without any discrimination. As regards Procedural Law, according to Cooley, the famous author, it is open to the Legislature 'to abolish Courts, create new ones,...and it may prescribe different modes of procedure in its discretion'-Cooley's Constitutional Limitations, Vol. I, page 552. This power is subject only to one limitation and that is that in so doing the legislature shall not dispense with any substantive rights. This question about the Special Tribunals Regulation being void was raised in the case of-Abdur Rahim v. Joseph A. Pinto, which came up before the Full Bench. of this Court and in that case the Full Bench held that the Special Tribunals Regulation was valid law,-A.I.R 1951 Hyd 11 (FB)
14 (a) The next argument of the learned Counsel for the accused was that the trial in this case infringed Article 21 of the Constitution of India, in that it was not according to the procedure established by law. As to what is meant by 'procedure established by law' has also been defined in the case already referred to. Mathews in his book on American Constitution referring to the 'due process clause in the 14th Amendment' says,
This clause requires that the defendant shall have due notice and a fair hearing and provided these conditions are fulfilled the methods of procedure in Criminal Trials are within the control of the State. The due process clause provides for ordinary procedure and does not require any particular procedure.
Coming nearer home, the Chief Justice of India in the case of-Gopalan v. The State of Madras : 1950CriLJ1383 interpreted the words 'procedure established by law'. His Lordship observed 'procedure established by law', must mean procedure prescribed by the law of the State.
(b) It was urged that the provision in the Special Tribunals Regulation whereby the Tribunal would get jurisdiction only when the case was transferred by the Military Governor was unconstitutional and it amounted to abrogating the extant law, namely, the Criminal Procedure Code. I do not agree with this contention because a provision in an Act that the operation of the Act is to be determined by some officer does not amount to delegation of any legislative power. It can only amount to an authorization to enforce the Act on the fulfilment of the conditions specified therein. Wills in his 'Constitution' says, Legislature may delegate the power to determine the conditions or contingencies under which a statute shall be operative.
A similar contention was raised in the case of-Emperor v. Banoarilal and was negatived by the Privy Council AIR 1945 P.C 48. Therein their Lordships adverted to the judgment of the Original Court (the Calcutta High Court) and also to the observations of the Chief Justice of the Federal Court Sir Varadachariar and Sir Zafrullah Khan in the appeal and disagreed with them. Sir Varadachariar and Sir Zafrulla Khan were of the opinion that the Special Criminal Courts Ordinance left the local Government the discretion to direct what offences or class of offences should be tried by the Special Court and this was bad because it left to the sweet will and pleasure of the executive Officer to lay down the policy or the condition with reference to which the power had to be exercised, and this resulted in a discrimination between one accused and another because one case may go before, the ordinary Court and the other before the Special Court. Their Lordships of the Privy Council expressed that they were not in agreement with the Judges of the Federal Court and that it did not violate any principle and that that fact did not make the act or ordinance 'ultra vires'. A similar observation was made by the Chief Justice of India. Harilal Kama in the case of-Gopalan v. The State of Madras : 1950CriLJ1383 .
(c) Another argument advanced was that according to the Special Tribunals Regulation, the Tribunal would get jurisdiction to try a case only if there was a specific order by the Military Governor transferring the case to the Tribunal. The learned Counsel contended that in this case there was no such order. In this connection it would be desirable to note the sequence of events, relating to this case. The challan, in this case, was filed on 27.7.1949, the evidence, in the case, started on 17.8.1949 and the charges were framed on 29.9.1949. After this the Counsel for the defence raised an objection before the Special Tribunal that it had no jurisdiction to try the case. It was after this date on 6.10.1949 that an order was issued by the Military Governor referring this case to the Special Tribunal. On 8.10.1949 again another Regulation was promulgated by the Military Governor styled The Special Tribunals (Validation of Proceedings) Regulation and by virtue of Section 3 of the aforesaid Regulation it was provided that all proceedings taken by the Special Tribunal in relation to the offences which the Special Tribunal was, by an order of the Military Governor dated 6.10.1949, directed to try, shall be deemed always to have been as valid and effectual for all purposes as if the said order had been made before the tribunal took cognizance of the offence. In short this Regulation purported to validate retrospectively all proceedings that took place before the Tribunal. The learned Counsel for the defence very strongly urged that the Military Governor could not have validated the proceedings which were 'ab initio' void. The Tribunal overruled this objection and on appeal both the Judges of (he Division Bench held that this plea was unsustainable. As the law stem is. I am also inclined to agree with the findings of the Tribunal and the learned Judges.
(d) The next question that arises for consideration is as to whether the Military Governor by a validating Regulation could regularize an irregular trial and confer jurisdiction on the tribunal. It cannot be said that the Tribunal had no jurisdiction at all.
With regard to the Validating Regulation promulgated by the Military Governor it has to be observed that in the various classes of legislation there is such a thing as curative legislation or a validating law. Curative statutes have been styled by Crawford in his treatise 'Statutory Construction' as those statutes which attempt to cure or correct errors and irregularities in judicial or administrative proceedings. The nature of the validating regulation of the Military Governor was exactly the same. After all what the Military Governor sought to do was to regularize an irregularity. It did not affect the jurisdiction of the Tribunal because it had jurisdiction already. The proceedings held by it could not be regarded as void because there was no express prohibition to try the case and statutes which merely purport to cure defects in legal proceedings, which are in their nature only irregularities, are always permissible under the law.
15. After disposing of the point about the jurisdiction of the tribunal to try the case, I have now to determine as to whether there is sufficient evidence in the case to prove the guilt of accused 2, Abdul Munim Khan. The case against Abdul Munim Khan, A-2, according to the prosecution is that he was sent for by Aseer, P. W. 1, in furtherance of the conspiracy hatched in his house to put an end to the life of Shoebullah Khan. It is stated that accused 2 received a pistol from F. W. 1, Aseer, and in company with Mohsin Raza and another friend of his by name Zamiruddin, who is an absconding accused, started on this expedition and on the night of 21.8.1948 at about 1.15 A.M. fired at Shoebullah Khan which resulted in his death and that he also inflicted severe injuries on Ismail Khan. He has, therefore, been charged for the murder of Shoebullah Khan, for the abetment of murder and participation in the conspiracy. The evidence produced by the prosecution to connect accused 2 Abdul Munim Khan, with the guilt consists of (i) P. W. 1, Aseer, who was tendered pardon and turned an approver, (ii) P. W. 5, Syed Sajjid Ali, who is said to have been present when the pistol was handed to A-2, (iii) P. W. 10, Gulam Yazdani, before whom accused 2 is said to have admitted having murdered Shoebullah Khan and (iv) P. W. 31, Ismail Khan, the injured, who is said to have stated that the man who attacked him on the night of 21.8.48 was the same man who slapped the boy in the Chappal Bazaar Mosque on the last day of Rarnzan 1948. In addition to this evidence the prosecution relies upon his own confession recorded by the Magistrate which is Ex. P. 7.
16. (a) The first piece of evidence is that of Aseer, P. W. 1, the approver. It has to be borne in mind that an approver is always regarded as a man of little moral worth because his disclosure of facts is in its very nature the result of inducement or promise to pardon and in this case actual tendering of pardon. An approver is one who purchases his own freedom at the expense of others. He is prone to throw the blame upon his fallow conspirators for acts done by him and primarily he is a man admittedly guilty of a crime and the prosecution relies upon his statement in order to be able to get complete details about the 'crime where there is no' other satisfactory method of getting all the evidence in the case. Therefore in such cases where a court has before it the evidence of an approver corroboration is always insisted upon by way of 'ex majore cautela'. As regards the nature and extent of the corroboration there is no difference between English and Indian Law. It is not necessary that every statement should be corroborated. (After discussion of the evidence of P. W. 1 the Judgment proceeds).
17. The general rule is that 'prima facie' it would be unsafe to convict any one on the evidence of an accomplice. Every endeavourer should be made to test the truth of such evidence. The Court will have to consider whether the story bears the impress of truth. As I have observed above P. W. 1's story does not bear the impress of truth. It was argued by the learned Advocate General that it would have to be determined whether P. W. 1 could be charged as a caucused. If he could not be his evidence could not be rejected. I am of opinion that P.W. 1 is clear, an accomplice A witness in the position of an abettor who had been tendered pardon is an accomplice. He is an abettor because be instigated A-2 to go and commit the crime. I, therefore, hold P. W. 1's evidence should be rejected.
18-19.(After discussion of the evidence of P. W. 5 and that of P. W. 10 in part the judgment proceeds).
(e) The learned Advocate General urged that having regard to the part played by him in this case this man could not be regarded as an accomplice and his statement is not, liable to be rejected on this ground. It was argued that like P. W. 2 and P. W. 4 this man was not a willing agent in the commission of the crime. The trend of decisions in the various High Courts has been to regard an active participant in the commission of the crime., one who is a 'partiers criminals' alone, as an accomplice. The fact that a person is passively helping another to commit a crime or having been present when the crime was committed does not inform the police or for the matter of that where a person helps the criminal, in disposing of the murdered body or concealing it, would not make him an accomplice. In this connection the cases of-Ramaswumi Gounden v. Emperor 27 Mad 271 in Re Adanni Venkadu AIR 1939 Mod 266, decided by the Madras High Court and the case of-Nurul Amin v. Emperor AIR 1939 Cal 335 decided by the Calcutta High Court would be in point. One has to lake into consideration the nature and extent of his participation in the crime. If the Court finds that his act is such as to render it probable that he himself would have been charged for the offence, then his evidence is absolutely of no value. It may be pointed out that this witness, Gulam Yazdani, has escaped being made an accused in the case by an irony of fate. Ismail Khan time and again referred to this man as his assailant and one cannot fathom what transpired between 22.8.1948 and 25.8.1943 which made Ismail Khan say that he was not the person who attacked him. I do not reject his evidence on the ground that he was an accomplice but I am strongly of the opinion that this man cannot be relied upon, for the reasons set out by me. Though not an accomplice in the actual murder be was an active participant in the conspiracy during all its stages. (After discussion of the evidence of this witness the judgment proceeds).
20. (a) The next witness is P. W. 31, Ismail Khan, the injured himself, who is the most important witness in this case. I would deal with his evidence in extensor later but at this stage I would prefer to discuss about the Identification parade of 25.8.1948 and the Identification Parade of 5.10.1948 and the evidence relating to the incident in the Chappal Bazaar Mosque on 7.8.1948 (the last Friday of Ramzan).
(b) With regard to Identification Parades it has been held that the Identification Parade lest is not quite sufficient to form the basis of conviction though it may add weight to the there evidence. One other factor also that has to be taken into consideration is that it would lot be safe to base a conviction on the Identification by the injured person especially when the name of the person was not mentioned by the identifier in the early stagers of the investigation or in his statement, A most careful scrutiny about Identification Parades cannot be Overemphasized and it is the duty of a Magistrate conducting an identification parade to see that all precautions are taken in the matter of satisfying himself that the injured had no opportunity to see the accused before. A Magistrate conducting an identification parade should take an intelligent interest in the proceedings as the life of an accused depends on his vigilance and the caution that he exercises. (After discussing the evidence with regard to identification parade of 25.8.1948 the judgment proceeds).
21. (a) Having dealt with the identification parade of 25.8.1948, it would be convenient to deal with the other Identification Parade held on 5.10.1948.
(b) A-2, Abul IMunim Khan, was arrested on 5.10.1948 and this parade was held on the same day. No doubt this circumstance has to be explained by the prosecution that although Ismail Khan is said to have mentioned about his assailant as being the person who slapped the boy in the Chappal Bazaar Mosque as early as 25.8.1948, it was not until 5.10.1948 that A-2, who was known to be the arson who slapped the boy in the Chappal Bazaar Mosque was arrested and the Identification Parade held to enable the injured to identify the accused. P. W. 10, Gulam Yazdani says that there were rumors afloat about Munim Khan being the man who was referred to by Ismail Khan as the person who slapped the boy in the Chappal Bazaar Mosque. It was urged by the prosecution that A-2 was sent away to the front as a Razakar. As regards this identification parade also the learned Counsel for the accused urged that the proceedings were not conducted properly. Why was this parade held when Yazdani knew who Munim Khan was? He could easily have been arrested. The first objection of the counsel for the accused is that this parade was held in the police head-quarters the second. objection is that it looks as though the whole thing was cut and dry and the Magistrate merely came to put his rubber stamp on this which had been got up already, and the third objection is that the majority of the persons who were included in the parade were all police men and no members of the public were called. As I have already observed, even the omission to observe a minor necessary procedure, at the time of the identification parade, would detract from its value and the utmost scrutiny and vigilance is expected of the officer conducting such parade. The proceedings thus conducted ought to leave no room or loophole to create the least suspicion in the mind of the court. There is a duty cast upon the officer to make a thorough enquiry He should ask the accused whether he had been taken round anywhere just to satisfy himself (the Magistrate), whether there could have been the remotest possibility of the injured having seen the accused. I find from the statement of P. W. 26, the Magistrate that he satisfied himself only by enquiring from the Police Officers there that the injured had not seen the accused previously. He says, 'Besides that I had no other means of satisfying myself'-P. W. 26, page 8. I fail to understand how the Magistrate had no other means to satisfy himself. Enquiring from the Police Officers would not absolve the Magistrate from making independent enquiries. He could have asked the accused and if he said that he was shown to the injured he could have investigated into the matter. The Magistrate again does not take the trouble to verify as to whether persons had been called from among the members of the public. He goes by what the police tell him-P. W. 26, page 8. The fact that the profession of many of those who were called is employment in the Police Department does not put him on the guard. He does not care to direct the police to get persons other than police constables, My view is that not much turns upon an Identification Parade. The fact that the accused has been pointed out as the assailant is no proof that he took part in the crime. At best it can only serve as corroboration of the evidence in Court.
22. It would be convenient at this stage to discuss about the Chappal Bazaar Mosque incident. The Chappal Bazaar Mosque has assumed a notoriety and importance in this case by reason of the fact that Ismail Khan, the injured is said to have made a statement that the man who inflicted injuries cm him was the person who slapped the boy in the Chappal Bazaar Mosque on the last Friday of Ramzan (1948). (After discussion of evidence with regard to this incident the judgment proceeds).
23. Having dealt with the two identification parades held on 25.8.1948 and 5.10.1948 and the Chappal Bazaar Mosque affair, I would now advert to the confession of accused which is also relied upon by the prosecution. The confession of accused 2 was recorded on 21st Azur 1358 Fasli, corresponding to 21.10.1948, and is marked Exhibit P. 7. This confession was recorded by the Magistrate Shankar Pershad, P. W. 11. Before discussing about the recorded confession it would be necessary to know about the probative value of confessions in criminal cases. It was observed by their Lordships of the Privy Council in the case of-Harold White v. The King AIR 1945 P.C 181, that confessions are not always true and that they must be checked more particularly in a murder case in the light of the whole of the evidence on the record, to see if they carry conviction and where the confession has been retracted it is the duty of the Court, especially in a case of murder to satisfy itself by considering all the material points and surrounding circumstances whether the confession is true. In order to render a confession admissible it must be voluntary. It is the duty of every Court to enquire carefully into all the circumstances that led to the making of the confession. When considering about confession one of the most important factors which should be taken into consideration is the length of time during which the accused was in police custody before making the confession. No doubt no hard and last rule can be lice in this regard but the Court will have to judge for itself from the intrinsic evidence of the confession and the surrounding circumstances as to whether such confession should be relied upon. Both the learned Judges constituting the Division Bench have rejected the confession. The learned Chief Justice has observed.
Having regard to the defects both in the investigation and the evidence mentioned above, I am not prepared to give that weight to them (confessions) which I would otherwise have done.
Likewise Khaliluzzaman J. has not attached any weight to it. As regards the confession of A-2, the following objections were raised by the counsel for the accused:
(i) That A-2 was in police custody from 5.10.1948, that is to say for 16 davs prior to the date of the confession. No doubt this fact is borne out by the record because according to P. W. 37, A-2 was arrested on 5.10.1943 and this confession was recorded on 21st October 1948. Length of time in police custody is enough to raise a suspicion. Although such a confession may not be inadmissible it will certainly affect the value of the confession and when the confession is retracted, the Court will probe into the matter in order to ascertain why the accused made the confession.
(ii) That A-2 was tortured by the police officer investigating the case. It was also urged that the police employed third degree methods. In so far as this objection is concerned 1 am not inclined to agree with the counsel for the accused, because it was open to the accused to have stated before the Magistrate that the police resorted to third degree methods in extorting the confession from him and that he has not done. No doubt, there is a strong circumstance in favour of the accused, namely, the person against whom this charge is made of having tortured th' accused is one Ghouse Beig, who certainly was an important witness for the prosecution, having regard to the very prominent part played by him in the investigation of this case. This Ghouse Beig was not called by the prosecution and legitimately the counsel for the accused argued before me that I should draw an adverse inference against the prosecution on account of their failure to call this important witness and subject him to cross-examination. There is evidence on record that it was this Ghouse Beig who took accused 2 and Mohsin Raza to the Magistrate it was he who tackled the case; he it was that submitted application for adjournment to file the challan.
(iii) Accused 2's learned Counsel also objected to the confession being admitted on the ground that the Magistrate did not record the confession in the form of questions and answers. His complaint was that the Magistrate should have put questions and elicited answers. If the story was given in the form of a narrative he contended that it had to be taken with caution and in support of this argument he relied upon a decision of this High Court reported in 15 Deccan L.R. 31. I am afraid this argument cannot be sustained. Section 164, Indian Criminal P.C. corresponding to Section 168, Hyderabad Criminal P.C. does not compel a Magistrate to put questions to the accused he can be asked to give the story in his own way. The idea is that it must be a spontaneous narrative. The Indian High Courts have deprecated the practice of putting questions and eliciting answers. The idea of putting questions also does not appeal to common sense because a Magistrate could put questions only if he had before him, a note of what the accused was going to say. In the case of-Abdul Jalil Khan v. Emperor reported in ATR 1930 All 746, one accused gave a different version from the other accused and the Magistrate thereupon put some questions. It was held in that case that the Magistrate could not put questions. This objection, therefore, is of no avail. (After pointing out certain discrepancies between the confession and the evidence in the case the judgment proceeds).
24. I have in the foregoing paragraphs dealt with the evidence, documentary and oral, produced by the prosecution to prove the guilt of A-2 in the murder of Shoebullah Khan and the inflicting of injuries on Ismail Khan. It now remains for me to consider about the evidence oil Ismail Khan himself, who has been examined by the prosecution as P. W. 31. (After discussion of the evidence of this witness the judgment proceeds).
25-27. So far as entries in case diaries are concerned, the section of the Criminal Procedure Code which deals with them is Section 172. An Officer investigating the crime has to record the result of his investigation day to day and this is called the case diary. Sub-clause (2) of the above section says that a Court might send for such diaries in a case only to aid in enquiry and not for any other purpose. The section, therefore, strictly forbids the use of the entries in diary as a piece of evidence. The Court can for its own satisfaction and for its own assistance go through them. This point as to the admissibility of entries in Police Diaries as evidence in a casa was discussed at length by a Special Bench of the Allahabad High Court in the case of-Queen Empress v. Mannu 19 All 390 (FB). It was held in that case that it could be used to enable the Police Officer to refresh his memory or it might be used for the purpose of contradicting him. These are warranted by the section itself. It is, according to me, a privilege attaching to this document and such privilege cannot be dispensed with. The prohibition to its us by the accused or by the Court excepting for the restricted purposes has been imposed on grounds of sound public policy and the Court cannot deviate from it. The same matter came up for decision before the Privy Council in a case which went up from the Court of the Judicial Commissioner, Central Provinces. Their Lordships while fully approving of the decision in - Queen Empress v. Mannu 19 All 390 (FB) observed that using the diary for a purpose other than merely elucidating points which needed clearing up was against the provisions of Section 172, Criminal P.C. it, therefore, follows that the entries by themselves cannot be taken as evidence, but there is nothing to prevent such entries being looked into for the elucidation of points which need clearing up, I do not propose to re]y upon the entry in the diary of accused 2 having n beard. The defence could very well have cross-examined Hatniduddin Khan or if it came to know of this entry late have requested the Court to tender him for cross-examination. The law prevents my using it to rebut Hartniuddin Khan, even if I wanted to do so.
28. I must also point out that with regard to the persons who attacked and how the attack was made Ismail Khan's statements are conflicting and contradictory. (After discussion of the evidence the judgment proceeds): These facts only go to show that Ismail Khan could not have noted clearly who the assailant was.
29. (a) Almost at the close of the arguments an application was filed by the learned Advocate General praying that the Court might summon four witnesses mentioned in the application. He, however, urged that he was making the application without prejudice to his contention that the evidence on record was enough to prove the guilt of accused 2. A copy of this application was given to the counsel for the accused, who opposed the admission of this additional evidence. A similar application was filed before the Division Bench and the Division Bench rejected the application. No doubt, I am not bound by the order passed by the Division Bench in rejecting the application, and it is open to me to consider about the merits of the application 'de novo', and grant or refuse the application. In the matter of additional evidence the Appellate Court has always the power to call for the same under the provisions of Sections 375, 428 and 540, Indian Criminal P.C. The first section would come into operation when the case is before the High Court for confirmation of the sentence of death. The second section would come into operation when there is an appeal pending before the High Court and the third Section 540 contemplates the summoning of any person as a witness or examining any person in attendance though not summoned as witness or the re-calling of a witness who has been already examined. This section therefore, is more or less an omnibus section giving power to the Court, to examine witness, if it considered necessary. The case now before me has come up both by way of confirmation of sentence passed against accused 2 and also by way of an appeal filed by accused 2. I have now to consider whether this is a fit and proper occasion to call additional, evidence. It has to be borne in mind that calling of additional evidence is not confined to cases where the accused makes the application. It would also apply to cases where the prosecution makes such on application. The object of the section is just as much the prevention of the escape of a guilty person through some carelessness of the prosecution or the Magistrate as the vindication of the innocence of a person wrongly accused owing to the carelessness and ignorance of on party. There is no differentiation between the two cases. If there is the apprehension of justice failing by an erroneous acquittal or by an erroneous conviction the Court would be justified in exercising its discretion in calling for additional evidence. I would be entitled to call for the additional evidence if I feel that the additional evidence will expand or clear up the evidence in support of the charge; but not where, on the evidence, a conviction could not be sustained that I should call evidence which may go to support such a conviction. I would herein quote the observations of an eminent Judge of the Madras High Court, Sadasiva Iyer J. in the ease of - Varadarajulu Naidu v. Emperor 42 Mad 835 (.SB):
I do not deny the power of the appellate Court to do so under Section 428, Criminal P C, but I am clearly of opinion that it should be exercised against the accused 'only in very exceptional cases'.
I have, therefore, to determine whether exceptional circumstances exist in this case. The same Judge also observed,
The discretion to be exercised by the appellate Court in taking additional evidence is not arbitrary discursion as is shown by the provision that it 'shall record its reasons'. Surely it should not be exercised, especially, against the accused in a criminal case, whore under similar circumstances the Court of appeal hearing a civil appeal would not admit additional evidence on appeal under Order 41, Rule. 27, Civil P.C.
As early as 1883, Mohmood J. stated that when all evidence produced by the prosecution fails to sustain the charge, the High Court will not direct that additional evidence' should be taken except in very exceptional circumstances, especially where the prosecution having had ample opportunities to produce evidence and that evidence falls short of sustaining the charge Empress of India v. F. Fateh 5 All 217. I would go further and say that negligence on the part of the prosecution can never be a ground for taking additional evidence against the accused and by allowing such additional evidence surely justice would fail.
(b) The learned Chief Justice has pointed out the unsatisfactory manner in which the investigation was conducted in this case. I entirely agree with him that this case has been investigated and conducted in most slipshod manner. I would herein refer to a few instances of the absolute want of care of the prosecution:
(i) The weapons that are said to have been used for the murder and for inflicting injuries on Ismail Khan have not been properly recovered. So far as the pistol is concerned the pistol was returned to Vazir Mahomed Khan by Aseer and the pistol has not been produced in Court. In the evidence of P. W. 37, he says that Vazir Mahomed Khan's statement was recorded but before ever he could be produced he appears to have left for Pakistan. No strenuous effort was made to know about the whereabouts of Vazir Mahomed Khan.
(ii) The sword is recovered from the police office as Vazir Mahomed Khan with whom it was left by Sajjid Ali, P. W. 5, is said to have surrendered the same when there was a general order for surrendering of arms. The identity of the sword has not been correctly established.
(iii) The statement that it was the man who slapped the boy in the Chappal Bazaar Mosque that hit Ismail Khan was made as early as 25.8.1948 and this statement was also recorded in the case diary by P. W. 37. Gulam Yazdani, P. W. 10, know about it then alone. In fact Gulam Yazdani is said to have been present on the day of the slapping of the boy in the Mosque and therefore he knew who it was that slapped the boy. There could have been no difficulty in knowing the actual murderer. In spite of this A-2, Abdul Munim Khan was not arrested till 5.10.1948 and the explanation that is offered by the Investigating Officer is that he could not be got. It was incidentally suggested by the prosecution that he had left for the front. That he had gone to the front is clear from the evidence of P. W. 23, Mahomed Abdul Ahad. When asked whether himself, Hassan Ali, Zamiruddin and Munim Khan went to Alampur he says 'No, we did not go' - P. W. 23, page 3 - and the reason given for not going is given by him as arrangements not having been made, and this witness also says that 1 or 2 months after the death of Shoebullah Khan they all went to the President, Ziauddin, from where they had to go to Alampur. That clearly shows that Munim Khan was here 1J or 2 months after the death of Shoebullah Khan and did not go to the front.
(iv) The presence of important witnesses is not secured and ensured like Vazir Mahomed Khan and Sajjid Hussain.
(v) Material witnesses have not been called with regard to whom there could be no excuse of their being not available. Such witnesses are Fazle Razul Khan and Ghouse Beig, the very life and soul of this case. Both these persons were wholly in charge of the investigation of this case and one cannot understand why the prosecution fought shy of putting these persons in the witness box.
Acting on this principle that it would not be desirable to allow the prosecution to patch up the evidence, that is wanting in this case, I agree with the learned Chief Justice that this application for adducing additional evidence cannot be granted.
30-31. (After discussion of some more evidence the judgment proceeds:) On such unsatisfactory evidence I feel it would be hazardous to convict the accused of the charge. In such cases although the facts may cast the utmost suspicion on the accused, what the Court has to consider is whether they amount to some suspicion or whether they contain that element of certainty so essential to a conviction in a criminal case. I am of opinion that the evidence, as it has been presented to the court, is not such as to make it clear, beyond all possible doubt, that Abul Munim Khan, A-2, shot at Shoebullah Khan and inflicted injuries on Ismail Khan. The result is that the evidence is not conclusive and there is a doubt, and, therefore, the accused would be entitled to the benefit of doubt. I am, therefore, inclined to agree with my Lord the Chief Justice in holding that the prosecution has failed to make out its case against A-2, Abul Munim Khan, and he is, therefore, entitled to an acquittal. He is found not guilty of the charges made against him. The appeal of accused 2 is allowed and the judgment of the Special Tribunal is set aside. In view of the fact that I have come to the conclusion that A-2 is entitled to an acquittal, I do not think it necessary to go into the Revision Application of the prosecution for enhancement o the sentence against Munim Khan from one of transportation for life to that of the extreme penalty of the law, namely, death.
32. I cannot help remarking that the most gruesome murder has been perpetrated and there is material enough to show that the Razakar element was responsible for it, but in criminal law, suspicion, however strong it might be, cannot take the place of legal proof and further probably for want of sufficient proof a guilty man is escaping punishment, but according to well accepted notions it is better that ten guilty men escape rather than one innocent man suffer.
33. I must express my thanks to the Advocate General and the counsel for the accused for their having argued very ably which enabled me to sift and analyze the mass of evidence in this case.