MOLLA KHAN KABULI Vs. EMPEROR

JUDGEMENT

(1.) The appellant Molla Khan Kabuli alias Munna Khan Kabuli alias Hamidullah was tried by the Additional Sessions Judge of the 24-Pargannas and a jury on a charge Under Section 302, I.P.C, and convicted by a majority of 7 to 2. The learned Judge accepted the verdict of the jury and sentenced the appellant to be hanged, subject to confirmation by this Court.

(2.) The case is somewhat unusual. On the evening of 15 October 1930 one Abdul Gani was in a Panshop with a man named Hanif generally known as Mohammad Hanif. There was present In the Panshop another Hanif called "Bara Hanif," apparently because he was bigger than the other Hanif. A man named Molla Khan Kabuli well-known in the neighbourhood, who used to hawk articles round the adjoining villages, came into the shop. He was known to Abdul Gani and had made improper overtures to him a few days before and had been refused. Abdul Gani and Mohammad Hanif left the shop and proceeded a little way when Molla Khan followed and passed them, waited until they came up and then stabbed Abdul Gani in such a way that it is clear that he intended to kill him. Subsequently, Abdul Gani was taken to the hospital and died. Bara Hanif ran after Molla who had disappeared up the road. He failed to catch him and gave up the chase. Abdul Gani's father was called and information was given to the police. They started an inquiry and examined about half a dozen witnesses. Search was made for the accused but he could not be found and the ease was dropped. Subsequently, more than two years afterwards, information reached the police that this Molla Khan who had committed the murder was living in Peshawar. Information was sent to the police at Peshawar that an absconder Molla Khan Pathan now living with Nasher Khan Pathan at village Hoti in she District of Peshawar was wanted in a case at Calcutta. Whether any further description of the wanted" man, beyond his name was given to the Peshawar Police we do not know. However the police sent a man down to Calcutta who was charged with this murder. Directly he got here, he strenuously denied that he was Molla Khan or that he had ever been in Shyam-nagar where the murder was committed and said that his name was Hamidulla and that he lived in a village near Peshawar. Subsequently, he was put on trial and a number of witnesses stated that they had no doubt that the man in the dock was the man who murdered Abdul Gani, and whom they had known quite well for a good many years. Abdul Gani's father Ramzan said that he had known him for ten years selling fruits at Shyamnagar. Mohammad Hanif was called and said that he had no doubt that he was the man known to him as Mulla Khan who used to sell "hing" and dried fruits in the district. Their evidence was supported by Sheikh Banoo, and Thakur Prosad who was the owner of the Panshop referred to, and also by Pir Muhammad. On the other hand, the accused called four witnesses from Peshawar who strenuously denied that the man in the dock was Mulla Khan and said that his name was Hamidulla, that he had never been in Shyamnagar, that all along he lived with his mother in a village called Hoti and within a few yards of the houses where these witnesses lived. They stated that they had seen him almost daily, at any rate for the last five or six years, that during this time he had never left Hoti and certainly he had never been to Calcutta.

(3.) The learned Judge in his letter of reference says that he is free to confess that had he been a juror, he should as two of them did, have given the accused the benefit of the doubt. It is not necessary for me to refer in any detail to the evidence which was given at the trial, because the whole case turns upon the question of identity. There is no doubt that Abdul Gani was attacked in the manner described by him and the witnesses, and by a person who was well-known to them, and as described by them. The whole question was whether the man in the dock was that man. In our opinion, this case was not at all satisfactory. The investigation and the trial were defective and slipshod, and marred by illegalities, and characterised by a lack of thoroughness which is surprising, if not shocking, in a trial for murder. Even the record supplied to this Court is incomplete. The depositions before the Magistrate were used during the trial for the purpose of cross-examining the witnesses, and extracts from those depositions were put in evidence. Yet because the depositions were not formally tendered as evidence to the Court, they have not been included in the record. Such formality really amounts to absurdity. If questions are put and extracts included from depositions, during the trial of a case, it must be obvious that that evidence has been admitted by the Judge and that it must form part of the record, whether technically speaking it has been properly tendered or not. The matter is of some importance in this case because the learned Judge has remarked upon the considerable discrepancies between the evidence given by certain witnesses to the police, and to the Magistrate, and at the trial. Yet we have not held a full opportunity of examining the different sets of statements so as to be able to form a clear opinion about whether the discrepancies are as important as the learned Judge says. He refers specially to the evidence of the witness Banoo. I, at any rate, have found some difficulty in appreciating that there is much contradiction in the statements which he gave. The difficulty is to understand exactly what the evidence means as it stands in the present record. That brings me to the second point of criticizm, that the evidence is badly translated. Much depends in this case upon accuracy about what exactly the witnesses said whether they were talking of the present or the past. It is obvious from the translation which we have before us that the English words in the printed book are not the correct equivalents of what the witnesses said in their own language. Further a number of facts are left in uncertainty. If the Public Prosecutor and the pleader appearing for the accused cannot or will not probe thoroughly the evidence which is being given, so that an intelligible story can be included in the deposition, it is the duty of the Judge to do it, instead of leaving bits of evidence in the air so to speak, so that this Court cannot make out from the record what it was that the witness was intending to say. The learned Judge has referred to the police investigation in the following words: The investigation of the ease was lax to a degree and Mulla Khan was not arrested till about two years later, and then on the information of a man who knew him, he may be inferred to have said in both Hoti and Shyamnagar, who was not examined as a witness: