Judgement

Appeal (No. 20 of 1945), by special leave, from a judgment of the High Court (October 18, 1944), dismissing the appellants appeal from his conviction of murder by the Sessions Judge of Jhelum (July 1, 1944) and confirming the sentence of death passed on him by the Sessions Judge.

The following facts are taken from the judgment of the Judicial Committee. Akbar Khan was a lambardar of the village of Bahl, and he and his brother-in-law, Nur Khan, were waylaid on January 6, 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 was disputed, but the finding of the courts in India was 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 January 7, 1944, but was 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 Hay at, Malak Khan, appellant, Nur Alam, Gulsher, Aurangzeb and Sarsa, all residents of the village of Bhal.

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 that information it was said that on January 8, 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 appellants 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 were said to have been buried under a stone and thence dug up and produced by the appellant. The inspector thereupon, as he said, drew up a search list, dated January 8, and it was signed by the three police officers and the two others who were present.

On February 29, 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 of the 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 of the Indian Penal Code. The trial under those charges was conducted before the Sessions Judge of Jhelum from June 27 to 30, 1944.

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, Mussammat 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 Rs. The inspector himself removed the stone and took out the purse, etc. The stones were lying near the entrance to the courtyard by the sid