1. AKRAM, J.-This appeal with our leave is by one Hakim Ali who was convicted and sentenced to transportation for life under section 302/149 and to rigorous imprisonment for two years under section 148, Penal Code by the Sessions Judge of Gujran--wala in connection with the murder of Aziz Khan on 25-7-52, and whose appeal to the High Court of Judicature at Lahore, was dismissed by Rahman and Sufi, JJ.
2. The prosecution case was that there existed in village Kangniwala a feud between two tribes, the Changars and the Qureshis; that the appellant and his confederates, except one, belonged to the Qureshi tribe; that Aziz Khan deceased, who though a Pathan, was suspected of siding with the Changars against the Qureshis ; that the ill-feeling against Aziz Khan was further accentuated by a criminal prosecution under sections 307 and 148 started at the instance of Abdul Majid, a relative of Aziz Khan deceased, against the appellant, his two sons, Mushtaq Ali and Jamaat Ali, and certain others of the Qureshi group (Exh. P. G.) ; that on this account while the deceased Aziz Khan accompanied by a servant Walayat Khan P. W. 4, was proceeding in a tonga to his own village Kohlowal, the appellant and his confederates, in all six in number, attacked Aziz Khan with lathis hatchets and swords killing him on the Grand Trunk Road near the Octroi Post ; that some men including P. W. 3 Head Constable, P. W. 5 Nur Din and P. W. 6 Rehmat, who were attracted to the spot by the alarm raised, saw the occurrence and pursued the culprits, but the appellant and two others eluded capture and only the remaining three were secured near a village Sansaro ; that the appellant and the two others aforesaid were, however, arrested by 30-7-52, in the course of investigation.
3. The main defence of the accused was that all of them were falsely implicated on account of enmity and ill-will existing between the two parties.
4. Counsel for the appellant urged before us that reliable corroboration on material particulars was wanting in the case; that the High Court had sought for corroboration of the prosecution evidence relating to the identity of the culprits by comparing the hair on the head of the appellant and the two others mentioned above with a tuft of black hair which was found in the clutches of Aziz Khan deceased, and although judging by that test it had given to those two others the benefit of doubt on the ground that upon examination their hair were found to be different in certain respects with the tuft of hair aforesaid, the High Court had failed to apply the same reasoning to the case of the appellant who had grey hair and give him the benefit of the doubt. But the method aforesaid appears not to have been considered by the High Court itself as a very satisfactory one, as the following passage in its judgment indicates- "Although we have no reason to doubt the good faith of the eye-witnesses in this case, the tuft of hair introduces an element of doubt as to the identity of one of the culprits. It is also true that the prosecution witnesses do not say that the deceased had been seen by them catching hold of any of the assailants by the hair of the head. This detail they may have missed and we are not prepared to say that such a possibility is excluded . . . . . . . . . . . . . . . . . . . . . . . . .
5. After carefully reviewing the whole evidence on the record we have come to the conclusion that except for Jamaat Ali and Allah Rakha against whom no circumstantial evidence is available, the rest of the accused persons are satisfactorily proved to have taken part in a premeditated assault on the deceased and they are undoubtedly guilty of murder."
6. From the prosecution evidence it is clear that the appellant was the ring-leader of the party which opened the assault and that it was he who had halted the tonga by catching hold of the reins of the horse and had started an altercation with the deceased (see P. Ws. 3 to 7). The whole case depends on the appreciation and estimate of the prosecution evidence. I see no ground for interfering with the decision of the Court below and accordingly I dismiss the appeal. The petition for special leave to appeal in respect of the other three also hereby rejected.
7. CORNELIUS, J.-I agree that this appeal should be dismissed, but as I do not accept the reasoning of the High Court in an important respect, I think it desirable that I should state my views in my own words.
8. The incident in which Aziz Khan met his death took place at about mid-day in the immediate vicinity of a crowded thoroughfare. The manner in which the six accused persons are alleged to have started the quarrel and shortly after, to have chased and brought down their victim was such that, having regard to the locality, it was almost impossible that they should have remained unidentified, and on the other hand, the chances were that some at least of them would be captured on the spot. The chase started at a spot almost exactly in front of an octroi post, and on each side of the post, at distances of about 200 yards, there are bodies of policemen stationed at the Saddar Police Station, Gujranwala, and the Criminal investigating Agency office respectively. If therefore, it was the Intention of the assailants to escape unidentified, they could hardly have made a worse choice for the scene of their crime. It seems clear that all of them were well-known persons in the locality, and for this, the fact that they had been previously involved in criminal litigation, and were parties to a pending case at the time of the occurrence, may have been responsible to a material extent.
9. The deceased is said to have been driving his own tonga along the thoroughfare when he was stopped by the assailants of whom one namely Hakim Ali seized the horse by the head. Walayat Khin, a servant of the deceased was in the tonga with him. Getting down from the tonga, Aziz Khan talked with the accused persons for some time. It was a heated quarrel, which was observed by a Head Constable Ghulam Ahmad who was passing-by. The Head Constable had proceeded about 70 paces from the spot (representing perhaps about a minute of time) when the chase began and the victim raised cries for help. The assailants were armed with a sword, three kulnaris and two dangs while the deceased was unarmed. He ran in the direction of the Head Constable, and was brought down very close to him. Ghulann Ahmad tried to interfere but received a lath! Blow from one of the assailants, namely, Mushtaq, and stood back in consequence while the six assailants disposed of Aziz Khan by repeated blows to the total number of forty three. Seven of the injuries might have been caused with blunt weapons. The rest were incised wounds of varying degrees of seriousness, eight being on the head where the skull was cut through in several places.
10. It is quite obvious that the method employed by the assailants in dealing with Aziz Khan was daring to the point of recklessness. Ghulam Ahmad was acquainted with no less than five of the assailants, and he identified the sixth man at a proper parade held after his capture. The First Information Report was recorded by Ghulam Ahmad in which the names of five assailants are given, and mention is made of the sixth person whom he had not identified. Walayat Khan, a natural eye-witness knew each one of the accused persons. The trouble between them and his employer had arisen because of Aziz Khan taking the side of certain Changars of village Kangniwala as against the party of the accused persons who were Qureshis. There had been appearances in Court, one of which had taken place on that very day namely the 25th July 1952. Of the accused persons all except Hussain are Qureshis Hussain is a Khokhar and is said to have been once employed by Aziz Khan, and to have developed enmity towards him when he was removed from service. From among a large number of persons who probably witnesses the occurrence, the prosecution produced Nur Din Arain and Rahmat Arain who were examined in full, as well as a third witness Nazir who was only tendered for cross-examination. Nur Din and Rehmat both knew each one of the assilants.
11. It appears from the evidence that after the murder `was accomplished, the assailants divided into two groups of three each and one group ran along the main road, and disappeared in the inhabited area, but the other three men ran towards the open country and across the railway line which is close to the spot. Nur Din and Rehmat along with several persons including a Head Constable Shahabuddin and a Foot Constable Ghulam Nabi pursued this group and after a chase of some four miles, cornered them in a sugar-cane field from which they were induced to emerge by means of threats. They were then captured and taken back to the police station, These men were Mushtaq, Shah Muhammad and Hussain. The other three were Hakim Ali, Jamaat Ali his son and on., Allah Rakha. Hakim Ali was arrested on the 29th July and the other two on the 30th July 1952.
12. At the trial, the facts indicated above were duly deposed to by the prosecution witnesses some of whom have been mentioned above. Each of the accused persons pleaded false implication. The four assessors were unanimously of the opinion that the guilt of the accused persons had been established. The Sessions Judge relying on the prosecution evidence convicted each of them and imposed sentences of death on all except Hakim Ali, who was awarded transportation for life on account of his age, which is about 65 years.
13. When the case came before the High Court on appeal, the learned Judges found it possible to differentiate the case of Jamaat Ali and Allah Rakha from that against the other four accused persons by a process of reasoning of which advantage has been sought to be taken before us in favour of Hakim Ali as well. It should be mentioned that the petition for special leave to appeal was preferred on behalf of all the four accused persons whose conviction was maintained by the High Court. Leave was granted only to Hakim Ali, the decision in relation to the other three persons being reserved until the hearing of the case. Having considered the points on which counsel wished to rely for contending that the case was doubtful even with respect to Mushtaq, Shah Muhammad and Hussain, I find no ground such as might bring their case within the limited jurisdiction of this Court in criminal matters. These persons were chased from the scene of the crime and were caught after a continuous pursuit. They had been identified on the spot by witnesses of unimpeachable integrity. Such little defects as were brought to light by the learned counsel arguing on their behalf, have received consideration in the judgment of the High Court, and being matters concerned only with facts on appreciation of evidence, the decision of the High Court on these points must be treated as final. I agree that their petition for special leave to appeal should be dismissed.
14. But with respect to Hakim Ali, a stronger ground was advanced on the strength of the High Court's own reasoning which prevailed in favour of Jamaat Ali and Allah Rakha. It was argued with some force that if that reasoning were not applied to the advantage of Hakim Ali, the fundamental requirement that justice should not only be done but should also be seen to be done, would plainly not be met. It is necessary therefore to consider the argument which found favour with the High Court, in some detail.
15. The foundation of that argument is based upon a single fact, namely, that at the post-mortem examination the doctor found, clutched in one of the hands of the deceased, a tuft of black hair.
16. Nothing on the record indicates that this tuft was seen in Aziz Khan's hand at any earlier stage. A great many persons saw the deceased at the place where the murder was committed and on the way from there to the mortuary in Gujranwala town, less than a mile away. Several of these persons have given evidence in the case, but none was questioned regarding the presence or this tuft of hair in the dead man's hand. No less than 5 eye-- witnesses of the entire occurrence from the commencement of the quarrel up to the death of Aziz Khan were examined at the trial and to none of these was any question put which might have suggested that the deceased succeeded in seizing any of his assailants by the hair. In the very nature of the case, if Aziz Khan came to grips with any of his assailants, it could only have been when he was facing them on the road near his tonga. There is no indication of this to be found on the record at all. Once he took to his heels, and the long-handled weapons of his pursuers came into play, it was extremely improbable that he should have been able to get his hand to the head of any of his attackers, for it is clear that once he was down, they continued to pound him with their weapons until he was dead. The eight large wounds on his head show sufficiently clearly the impossibility of his having put up any resistance.
17. In the circumstances, the only natural source for the tuft of hair was the deceased's own head, and of course, there is also the possibility that the hair was put in the hand of the cadaver before it finally stiffened. The latter possibility was not considered in either of the Courts below.
18. In the course of investigation certain steps were taken viz., that samples of hair taken from the heads of five of the accused persons, namely all except Hakim Ali, were sent along with the tuft taken from the deceased's hand to the Provincial Chemical Examiner, who was asked whether the tuft matched any of the samples. The answer was in the negative, The reason why no sample was sent from Hakim Ali's head was that his hair was entirely grey. It was contended before the trial Judge that the none-identity of the tuft with the hair of any of the accused persons, created a doubt to the benefit of which each of them was entitled. The trial Judge rejected the argument. He quoted from an authoritative text book of Medical Jurisprudence, a dictum that it was "extremely difficult to determine whether the hair sent for examination belong to a particular individual or not."
19. He pointed out that there was no evidence to show that the tuft of hair was taken from the head of one of the assailants but on the other hand, there was a clear possibility, arising out of the evidence, that it came from the deceased's own head. Finally the trial Judge declared that no importance could be attached to a "mere negative medical opinion" in determining the guilt of the accused persons.
20. A different view was taken in the High Court. After stating the grounds upon which the trial Judge had formed his opinion, and declaring that they had "no reason to doubt the good faith of the eye- witnesses", the learned Judges expressed the opinion that "the tuft of hair introduces an element of doubt as to the identity of one of the culprits". They thought that the absence of any statement by a witness showing that the deceased had seized the hair of any of his assailants may have been due to mere oversight and the possibility that such a thing had happened could not be excluded. They expressed their point of view in the following words:--- "We would like to take the line of greatest caution in this matter. It is, therefore, possible that the prosecution witnesses may have been mistaken in identifying one of the culprits. The question arises which accused can that be."
21. As has been seen, the circumstances relating to the discovery of this tuft of hair are by no means such as create a doubt, much less a reasonable doubt, regarding the identification of each of the culprits on the spot by the prosecution witnesses. It is rare indeed to find in a case, witnesses whose reliability and integrity .Is less open to question than it is in the present case. The circumstances of the quarrel and attack are such as effectively to exclude the possibility that the victim could have seized any of his attackers by the hair.
22. In the circumstances, there has clearly been an excess of caution in the case. The position is not improved, but is in fact made somewhat worse, in the point of "justice being seen to be done", by the argument which prevailed with the learned Judges when they declined to include Hakim Ali within the area of doubt. They were satisfied that the three men who were caught after continuous pursuit from the spot had been rightly identified by the eye-witnesses and therefore confined the effect of the discovery of the tuft of hair to the other three accused persons. From this point onwards the argument which they have accepted is as follows-- "We have seen Hakim Ali in Court. He is a man whose hair is all grey. The tuft of hair found in the hand of the deceased was black in colour. It can be straightaway ruled out that the hair came from the head of Hakim Ali. We are then left with Allah Rakha and Jamaat Ali accused. It is possible that the identity of one of these accused may have been mistaken by the prosecution witnesses owing to a bona fide error. In our opinion, therefore, the benefit of the doubt should go to both these accused persons as it is not possible to differentiate between them."
23. It is contended with some force that the doubt should have gone more strongly in favour of Hakim Ali than the other two, to whom the benefit has been given. There is nothing to indicate that the colour of each assailant's hair was the principal, or even an important, aid to his identification by the prosecution witnesses. Nor is there anything to indicate that the assailants were bare-headed at the time of the attack. Therefore, the assumption that the witnesses by mistake identified an unknown person whose hair was black, as either Allah Rakha or Jamaat would seem to be unfounded. On the contrary, it is clear that the witnesses identified these persons because they were fully acquainted with them, and in broad day-light had a full and sufficient opportunity of identifying them. If the learned Judges thought was there a danger of one person in this group of three persons having been wrongly identified the doubt should certainly, in the circumstances, have gone in favour of each one of the three persons. But the foundation of the doubt itself appears to be illusory, had the method adopted by the learned Judges to give effect to it also lacks the elements of certainty.
24. It thus results that two persons have been acquitted against whom the evidence is precisely the same as it is against the appellant Hakim Ali, and yet Hakim Ali has been held to be guilty beyond reasonable doubt. On a true appreciation of the evidence, it seems clear that the guilt of Hakim Ali has been proved beyond reasonable doubt, and this conclusion is not affected in any way by the determination of the High Court that, on the same evidence, the case against Allah Rakha and Jamaat Ali was not free from reasonable doubt. A matter of primary concern to a Court is that it should maintain the conviction among the public that the processes of justice which it operates ensure impartiality and fairplay. It may be regretted that in this case, the adoption of what proves on examination to be a faulty process of reasoning has resulted in inequality between the treatment which Hakim Ali has received and that accorded to Allah Rakha and Jamaat Ali.
25. SHAHABUDDIN, J.-I agree entirely with the reasoning of my learned brother Cornelius to which I have nothing to add. I would dismiss the appeal. I would dismiss also the petition for special leave as far as the other accused are concerned.