1. HAMOODUR RAHMAN, C. J.-This petition and another Jail petition filed by the petitioner No. 1 alone will be disposed of by this order.
2. The 7 petitioners in this case were tried on a charge under section 302/34, P. P. C. For the murder of one, Abdur Rahman, at Choto Shalghar within Police Station Debidwar in the district of Comilla, on the 8th of March 1968, by the Sessions Judge of Comilla, with the aid of four assessors.
3. The learned Sessions Judge convicted all of them and sentenced the first five petitioners to death while the other two were sentenced only to transportation for life.
4. On appeal and reference, the High Court of East Pakistan maintained the convictions but confirmed the sentence of death only in respect of the petitioner, Abdul Majid. The sentences of the other four, who had been sentenced to death, were reduced to transportation for life but the sentences of the other two, who had only been sentenced to transportation for life, were upheld.
5. With this modification of the sentence the appeals of all the seven petitioners were dismissed. They now seek special leave to appeal to this Court.
6. Learned counsel appearing in support of the petition has attempted to challenge the findings of the Courts below with regard to the place of the occurrence, the recovery of blood-stained earth from the pathway on which the alleged murder took place the recovery of the blood-stained dagger from the petitioner, Abdul Majid, and a number of other facts, on the ground that the Courts below had not given due weight to certain omissions in the first information report, the seizure list and the 161, Cr. P. C. Statements of some witnesses. It is also contended that certain admissions made by some prosecution witnesses have not been taken into account.
7. The prosecution case against the petitioners was that the deceased bad come to the house of one Abdul Quddus of Haripur, to attend the akkika ceremony of his younger brother. He stayed the night there with Abdul Quddus and was returning to his own village on the following morning after sunrise. After he had proceeded a part of the way he was surrounded by the petitioners and four or five others armed with daos, rulers and daggers on the Union Council's kachha path-way, at the spot, which was mid-way between the Comilla-Brahmanbaria highway and the Buri river. The assailants forced the deceased down to the ground, held him and slaughtered him from ear to ear.
8. This was witnessed by several persons who were actually accompanying the deceased at the time. They raised a hue and cry but could not intervene, as they too were threatened. On their hue and cry people came rushing forward from the nearby villages and the miscreants fled from the place. The witnesses, who were with the deceased, then took courage and chased the culprits along with a few others who had come on their cries. In the course of the chase the petitioner, Abdul Majid, tumbled and fell. He was immediately pounced upon and caught with a blood- stained dagger in his hand. He was then brought to the place where the dead body was lying. By this time the Chairman of the Local Union Council, one, Abdul Jalil, had also arrived there and a large number of people had collected. When the latter saw the blood--stained dagger and the blood-stained clothes in the wearing of Majid they became furious and wanted to lynch him.
9. Thereupon Majid made an extra-judicial confession to the Chairman and pleaded for protection.
10. The Chairman intervened and took the petitioner for his safety to the house of one Somiruddin, which was at a distance of about -- mile from the place of occurrence. He was later removed to the house of one Shamsuddin and detained there till the police arrived and took him into custody.
11. In the meantime, the dead body was removed from the pathway, which was a very narrow one, for the convenience of the public and kept at a place 4/5 cubits away on the other side of a narrow khal or watercourse.
12. After this Farid Mia (P. W. 1), cousin of the deceased, went to the police station accompanied by the Chairman of the Union Council and Shamsuddin, to lodge the first information report which was actually recorded at 11-00 a.m. Of the same day.
13. After the departure of the complainant from the spot the petitioners, Shamsu Mia and Golam Rabban, were apprehended by the villagers and detained in the house of Shamsuddin, where the petitioner, Abdul Majid, was also taken from the house of P. W. Samiruddin.
14. When the police arrived they recovered blood-stained earth from the pathway, seized the blood- stained dagger and the blood--stained clothes in the wearing of the petitioner Majid. Chemical analysis of the blood on these articles revealed that the blood on the chadar seized from the person of Majid, and the blood on the earth seized from the Union Council pathway were of the same group, namely, group `B'.
15. The motive for the crime was said to be a raid conducted some 3/4 weeks earlier under the leadership of the deceased on the house of the petitioner, Siddiqur Rahman, to apprehend one, Suruj Mia, who was, in the opinion of the villagers, the ring--leader of a gang of thieves who had committed several thefts in the village. This motive is sought to be connected with the crime by the evidence that when the deceased was surrounded on the Union Council pathway, it was the petitioner, Siddiqur Rahman, who challenged him saying that he would "show him (deceased) how to suppress thieves.
16. The defence set up was that the petitioners had been falsely implicated at the instance of Shamsuddin, because, they belonged to the party of the deceased who had unsuccessful contested Sharnsuddin in the last Union Council election. It was also suggested that the deceased had been got murdered at the instance of Shamsuddin by unknown assailants.
17. The evidence of a large number of prosecution witnesses has been very elaborately examined by both the Courts below. All the points which are now sought to be raised before us were, it appears, considered by the High Court, which came to the conclusion that the witnesses were worthy of belief. It is not for this Court now to re-appraise that evidence, for, this Court does not undertake this task unless a substantial departure from some rule or principle relating to the appreciation of evidence has occurred. No such departure has been made in the present case. The slight discrepancy in the evidence of the witnesses inter se with regard to the distance between the Union Council pathway and the place to which the dead body was removed, is hardly sufficient to discredit the direct evidence of the eye-witnesses. Such discrepancies are not unusual.
18. The recovery of blood-stained earth from the pathway, it appears, was not even challenged; for, no question on this point was put to the investigating officer in cross-examination. It is not possible, therefore, at this stage now to rely on some omission in c the seizure list which was never put to the investigating officer and he had no opportunity to explain the same.
19. Similarly the non-mention of the recovery of the dagger in the first information report cannot be utilised for contradicting the direct testimony of a number of witnesses who claimed to have actually seized the dagger from the hands of the petitioner, Abdul Majid. The first information report could only be used to contradict the maker thereof and not any other, witness.
20. The learned counsel for the petitioners has also urged that the implication of the petitioner, Ghulam Rabban is doubtful, because, he was not named in the first information report. The first information report did of course mention the names of all the other petitioners and then added that 4/5 others also participated in the incident. Ghulam Rabban, who was arrested, was brought in the place of the incident when the informant had already left the place for the police station. It may be that on this account he was not named or it may even be that the informant had not been able to identify Ghulam Rabban in the course of the melee. Other witnesses who knew him, had, however, clearly named him as one of the participants in the incident and the Courts below have believed them.
21. Learned counsel has also urged that the extra-judicial confession alleged to have been made by Abdul Majid before the Union Council's Chairman was not admissible in evidence either against the said Abdul Majid himself or against any of his co-accused. But even if this extra-judicial confession is left out of consideration, there is abundant other direct evidence to implicate the petitioners.
22. Nothing much, therefore, turns on this point.
23. Lastly learned counsel has contended that the High Court was wrong in presuming that the petitioner. Majid, was the person who had actually slaughtered the deceased, as there was neither any direct evidence on this point, nor was this mentioned in the first information report. This inference has been drawn from certain circumstances which, it is urged, do not conductively establish that he was, in fact, the person who used the knife.
24. This last contention appears to be not altogether without substance. We, accordingly, grant leave only to Abdul Majid to examine as to whether there was any valid justification for making a differentiation in his case, so far as his sentence was concerned.
25. The petition of the other petitioners is, however, dismissed, as all the points urged go merely to the appreciation of evidence.
26. The delay of 8 days in the filing of the Jail petition is condoned, as the regular petition filed in Court is within time. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.