MALAK KHAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the judgment of the High Court of Judicature at Lahore dated 18 October 1944, dismissing the appellant's appeal from the judgment of the Sessions Judge of Jhelum dated 1 July 1944, and confirming the sentence of death passed upon him. Special leave to appeal to His Majesty in Council was granted by an Order in Council dated 21 March 1945. The main legal point for decision in this appeal is whether in an appeal from a conviction of murder, the High Court is entitled to accept, as corroboration of the guilt of the accused, evidence (given in the Sessions Court where the charge was one of murder and robbery) which was material to both charges but failed to convince the Sessions Court of the guilt of the accused of the crime of robbery with the result that he was acquitted of that charge. Akbar Khan was a lambardar of the village of Bahl, and he and his brother-in-law Nur Khan were waylaid on 6 January 1944, on their way back from the village of Munara three or four miles distant, where Akbar Khan had been collecting land revenue. The time at which the assault took place is disputed, but the finding of the Courts in India is that it was between 4 and 5 P.M. Both men received severe injuries apparently with blunt weapons, and Akbar Khan died the same evening. Nur Khan survived and was a witness in the case. The first information report was registered at the Police Station of Buchal Kalan at 10 A.M. on 7 January 1944, but is said to have been taken down at an outlying post at 4 A.M. by an Assistant Sub-Inspector of Police. The maker of the report Imam Din Said that he had heard of the affair from one Mohammad Nawaz and that he had gone to the spot and heard a statement made by Akbar Khan, who subsequently died on the road. The persons named as the assailants were Umar Hayat, Malak Khan, appellant, Nur Alam, Gulsher, Aurangzeb and Sarsa, all residents of the village of Bahl. In the course of investigation, Nur Khan and two witnesses, said to be eye-witnesses, told the police that Umar Hayat and the appellant had taken from Akbar Khan a black purse containing money and a list and a gold ring. As a result of this information it is said that on 8 January 1944, Inspector Lutaf Khan and two other police officers who were taking part in the investigation went together with one Fateh Khan and one Allah Yar Khan to the appellant's house and there recovered the purse, money, list and gold ring which it was alleged the appellant had told the Inspector he had buried in his garden. The articles are said to have been buried under a stone and thence dug up and produced by the appellant. The Inspector thereupon, as he says, drew up a search list dated 8 January, and it was signed by the three police officers and the two others who were present. On 29 February 1944, separate charges were framed by the Magistrate, namely (1) against all six accused "that they committed murder by intentionally causing the death of Akbar Khan in prosecution of the common object of the unlawful assembly and caused grievous hurt to Nur Khan" under Ss. 302/325/149, Indian Penal Code, and (2) against Umar Hayat and Malak Khan only that they committed robbery by forcibly removing the articles described above from the person of Akbar under S. 392, Indian Penal Code. The trial under those charges was conducted before the Sessions Judge of Jhelum from 27 to 30 June 1944.

(2.) The prosecution examined Nur Khan, Mohammad Nawaz and Alam Khan who professed to be eye- witnesses of both offences, Imam Din who made the report, Mt. Begam mother of the deceased and Mohammed Ismail whom he visited shortly before his death. The three police officers gave evidence for the prosecution, but the Inspector alone spoke to the finding of the articles alleged to have been stolen. The Crown called neither of the attesting witnesses of the search list. Allah Yar Khan was, however, summoned as a defence witness to prove an alibi for Umar Hayat and Aurangzeb and in the course of his evidence alleged that Imam Din had told him that the appellant had been one of the assailants. As to the search he said in examination in chief: "The A.S.I., S.I., Inspector, Fateh Khan and myself went to the house of Malak Khan, but Malak Khan was not with us. The Inspector himself removed the stone and took out the purse, etc. The stones were lying near the entrance to the courtyard by the side of the wall which is not very high. I do not remember if there is any berry-tree there. A man standing outside the compound wall could have placed the purse etc. from where the articles were recovered. The residential Kotha (house) of Malak Khan is about 25 or 30 yards from those stones." In cross-examination he said : "The fard (list) Exh. P. C. about the recoveries made from Malak Khan's courtyard is signed by me. I signed the fard without reading or understanding it. The fard was not read out to me. I was merely told that I was to sign the memo, of recovery re purse etc. The A.S.I. held the papers in his own hand when I signed the fard. It was neither dark nor light at the time of the recovery. The fard was not made out at the spot, but at the dera (office)."

(3.) Other witnesses belonging to the village of Munara gave evidence to the effect that the attack was made after sunset, that Akbar had set out after taking an evening meal with Falak Sher D. W. 5 and that the first statement of Nur Khan had been that he did not recognise the assailants, whose faces were bandaged. Two of the assessors were for convicting all six accused, and one for convicting all but Hayat and Aurangzeb, who pleaded alibi. The Sessions Judge in his judgment dated 1 July 1944, said it was clear that enmity did exist between the parties.