ABDUL RAHIM Vs. EMPEROR

JUDGEMENT

(1.) The appellant on 12 May 1944 was convicted on a charge of murder and sentenced to death after a trial before the Sessions Judge of Ambala sitting with a jury of seven. The jury returned a verdict of guilty by a majority of four to three. There were other minor charges against the appellant on which he was also convicted, but it is unnecessary to refer to these. Sentence of death having been passed on the appellant the "proceedings," as required by, S. 374, Criminal PC, were submitted for confirmation to the High Court of Judicature at Lahore. The appellant also appealed to the High Court against his conviction.

(2.) The case came before a Divisional Bench of the High Court consisting of the Chief Justice Sir Arthur Trevor Harries and Teja Singh J. After reviewing the evidence and the summing up of the Sessions Judge to the jury they came to the conclusion that certain material evidence had been improperly admitted at the trial and that the Judge had seriously misdirected the jury. The Court had then to consider what were its powers in this situation and what course it should adopt. Counsel for the appellant maintained that on both grounds the verdict of the jury should be set aside and a new trial ordered. Counsel for the Crown maintained that notwithstanding the defects in the proceedings the Court was entitled to examine for itself the whole proceedings including the evidence and should not set aside the verdict of the jury and order a new trial unless it was satisfied on a consideration of the whole case that the verdict was wrong and that there had been a failure of justice. In view of the importance of the questions raised as to the powers of the High Court in such circumstances and as to the proper course to be pursued by it, and also in view of the divergent opinions expressed on this topic in a number of previous reported cases, the learned Judges of the Divisional Bench decided to refer to a Full Bench the two following questions: "(i) When in a murder reference and appeal it is found that inadmissible evidence has been admitted in a jury trial, can this Court in view of S. 167, Evidence Act, and/or S. 537, Criminal PC, exclude such evidence and maintain a conviction if the evidence remaining is sufficient to warrant it or must a re-trial be ordered ? (ii) When in a murder reference and appeal it is found that there have been serious instances of misdirection and non-direction of a jury, should this Court in view of S. 537, Criminal P. C., proceed itself to consider the evidence and maintain a conviction if the evidence is sufficient or must a re-trial be ordered ?" Those questions were considered by a Full Bench of five Judges presided over by the Chief Justice which on 11 December 1944 delivered judgment, answering the questions as follows: (i) "Where inadmissible evidence has been admitted in a murder reference and appeal under S. 449, Criminal PC, the High Court may, after excluding such evidence, maintain a conviction, provided the admissible evidence remaining clearly establishes the guilt of the accused." (ii) "The Court in an appeal by an accused person under S. 449, Criminal PC, can, where there has been a serious misdirection or non-direction, consider the evidence and maintain the conviction if the evidence clearly establishes the guilt of the accused."

(3.) The case was remitted with these answers to the Divisional Bench which on 8 January 1945 dismissed the appellant's appeal and confirmed the sentence of death passed upon him. By order dated 3 August 1945 special leave to appeal in forma pauperis to His Majesty in Council was granted to the appellant on the advice of the Board, but "restricted to the two questions referred to the Pull Bench by the Divisional Bench." It will be observed that the answers returned by the Full Bench are narrower in scope than the questions referred to it, and are limited to cases under S. 449, Criminal P. C. This is explained by the circumstance that the case was one in which European and Indian British subjects were concerned and therefore came within the special provisions relating to such cases contained in chap. XXXIII of the Code, and particularly the special provisions relating to appeal in S. 449, which inter alia authorise an appeal on a matter of fact as well as on a matter of law in jury cases. The judgment of the Full Bench discusses with much learning and a full citation of authorities the whole ground covered by the questions referred to it but thought it right to limit its answers to the specific case, as to which, being a case under S. 449, which allowed an appeal on fact as well as on law, it was in any event clear what the answers should be, whatever view might be taken with regard to appeals under other sections of the Code. As the Order in Council grants leave to appeal on the two questions referred to the Full Bench and as it is desirable that the whole matters raised in these questions should be considered and decided their Lordships do not propose to confine themselves to the special case of appeals under S. 449.