JUDGMENT

Harrison, J. - The history of this case is peculiar. One Jalal Din was murdered on 11th September 1927. The same year three men were sent up for trial on evidence consisting of an approver, Harnam Singh, and three other witnesses. Two men, Mahla Singh and Khem Singh, were at the time said to be absconding and the story told was that all six, including the approver, had taken part in the murder, Mahla Singh and Khem Singh having actually attacked Jalal Din and the other four having stood near and supported the two principals by their presence. All the three accused were acquitted by the Sessions Judge, who was of opinion that Harnam Singh approver had not been there and was not telling the truth.

2. On 12th June 1929, Mahla Singh gave himself up and Khem Singh was arrested on 16th July 1928 after the acquittal of the three accused in the first case and after the Sessions Judge had given it as his considered opinion that the approver was unreliable and untruthful. These two men, Mahla Singh and Khem Singh, were then tried by the same Sessions Judge, who had acquitted the first three. Mahla Singh was convicted and Khem Singh was acquitted. On appeal to this Court it transpired that the approver had not been examined, the reason being that no reliance was placed upon him, A Division Bench of this Court set aside the whole of the trial because of this serious illegality and pointed out that it was for the Crown to decide whether further proceedings should be taken or not.

3. Mahla Singh was sent up for trial again; the defect was rectified by the production of the approver; and he, Mahla Singh, has now been convicted and sentenced to death. His appeal has been well argued by Mr. Abdul Karim appearing for Mr. Cooper. The evidence consists of the statements of Jan Mahammad, the man who made the first report, and three eyewitnesses, Shah Mohammad, Nizam Din and Jaimal, all of whom appeared in the first case which resulted in acquittal and also in the second trial. In this their evidence as against Khem Singh, the second accused, was not accepted. There was also the approver Harnam Singh who has been disbelieved, by everybody, that is, both by the first and the second Sessions Judges.

4. The case against the accused is summed up at p. 29 by the learned Sessions Judge. He accepts the evidence of Jan Mohammad and that of the other eyewitness and lays particular stress on two facts:

(1) that Mahla Singh's name was mentioned in the first report, which was made without delay;

(2) that Mahla Singh absconded and did not give himself up until after the conclusion of the first case.

5. The story told by Jan Mohammad is different from that told by the three eyewitnesses, the explanation being that he only saw the earlier part of the attacks did not even see the four men, the three accused Bakhtawar Singh, Dhanna Singh and Mukhtar Singh, and the approver Harnam Singh, who were said by the other witnesses to have been standing near by when the attack was made; did not see Khem Singh strike Jalal Din; in fact saw or heard nothing but the two shots fired by Mahla Singh; went away hurriedly for half an hour and then came back and went to the thana and made this very incomplete report.

6. The story of those who alleged that they witnessed the whole attack from start to finish is that Mahla Singh armed with a gun, and Khem Singh armed with a chhavi, made an attack on Jalal Din, near whom Jan Mohammad was sitting at the time. Mahla Singh fired his gun twice and shot Jalal Din and Khem Singh there and then attacked him with a chhavi and finished him off. Jan Mohammad got up and left in great hurry before the attack by Khem Singh, which followed immediately upon the shot; did not actually identify Khem Singh but saw him and saw or heard Mahla Singh fire two shots. The medical evidence is to the effect that only one shot took effect and this was certainly fired from in front. It was fired at very close quarters and no fewer than 351 pellets lodged in the