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Petitioner: Kazi ABDUL WANED alias WANED KAZI VS Respondent: THE STATEHonorable Justice SALAHUDDIN AHMEDAbdus Salam Khan,A. T. M. Masud
1969 P Cr
1969 P Cr. L J 164
[Dacca]
Before Salahuddin Ahmed and A. Hye Choudhury, JJ
Kazi ABDUL WANED alias WANED KAZI AND 16 OTHERS‑Accused‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 2 88 and Death Reference No. 8 of 1968, decided on 5th November 1968.
(a) Co‑accused‑--------Statements of co‑accused‑No evidence against other accused‑Such statements may, however, be taken into consideration for purpose of leading assurance to any indepen dent evidence sufficient to sustain conviction of accused.
(b) Penal Code (XLV of 1860)------S. 302/34‑Murder'‑Indepen dent evidence against accused not enough to sustain their conviction ‑Statement of co‑accused, held, in circumstance, hardly of any value against accused.
(c) Penal Code (XLV of 1860), S. 302‑Murder‑Sentence Murder committed in cruel fashion to satisfy a base motive‑‑No extenuating circumstance in favour of accused‑Sentence of death confirmed.
Abdus Salam Khan with Julmat Ali Khan and Mirza Abdul Matin for Appellants.
A. T. M. Masud, Deputy Legal Remembrancer with Mudabbir Hossain and Akram Hossain Amin for the State.
JUDGMENT
SALAHUDDIN AHMED, J.‑We have before us a Reference under section 371 of the Code of Criminal Procedure made by Mr. M. A. Barkat, Sessions Judge, Rajshahi, for confirmation of the sentences of death passed upon 8 persons, namely (1) Kazi Abdul Wahed, (2) Obedullah, (3) Ebad Ali Pramanik, (4) Ayez uddin Gain, (5) Abdul Ahmad Pramanik, (6) Azizur Rahman, (7) Munshi Golam Rabbani, and (8) Maziruddin Sardar as well as an appeal by 17 persons including the aforesaid condemned‑prisoners from the order of conviction and sentences passed on them under section 302/34, 354 and 120‑B of the Pakistan Penal Code. Both the Reference and the appeal have been heard together and they are now being disposed of under one judgment.
The facts of the case may briefly be stated as follows :‑
Chiefly over Dayarampur Union Council affairs there were troubles and ill‑feeling between Dr. Abdus Salam (deceased) on the one hand and appellant Azizur Rahman, the then Chairman of the said Union Council and appellant Munshi Golam Rabbani and their supporters. On the other Dr. Abdus Salam was a medical practitioner having a dispensary in Dayarampur Bazar and he, too, was sometime Chairman of Dayarampur Union Council. Appellant Azizur Rahman became Chairman of the Union Council by defeating Dr. Abdus Salam. Dr. Abdus Salam was trying to become Chairman once again by removing appellant Azizur Rahman and with this end in view the forma was making a serious attempt to requisition, a special meeting of the Council for the purpose of passing a no‑confidence resolution against the latter. This created animosity between the parties. There were also troubles between the parties over the distribution of `khas lands' of Dayarampur Rajbari. The prosecution alleges that all these led appellants Azizur Rahman and Munshi Golam Rabbani and the other appellants who belonged to their party to hatch a conspiracy to take away the life of Dr. Abdus Salam. There were several meetings in which the conspiracy was alleged to have been made and in pursuance of the conspiracy Dr. Salam was murdered. Previous to the fateful day of murder a meeting was convened by or at the instance of Dr. Salam to decide upon the arrangements to be made for celebration of the Independence Day on the 14th August 1966. The meeting was held on 6th August 1966 in front of Dr. Salam's dispensary at Dayarampur Bazar, and it was attended by about 50/60 persons and continued till 10 p. m. Thereafter Dr. Salam and P. W. 1 Sachindra Nath Sarkar P. W. 18, Sudhangsu Kumar Sarkar and Dr. Salam's nephews P. W. 10, Abdul Kuddus and P. W. 15 Abdur Razzaque went to Dr. Salam's dispensary. At midnight both P. Ws. Sud hangsu and Kuddus left for their home and P. W. Razzak, who was also a compounder of Dr. Salam fell asleep in the dispensary. At 12‑30 a. m. on the 7th August 1966 Dr. Salam and P. W. 1 came out of the dispensary and found appellant Ebad standing in the south‑cast corner of Dr. Salam's dispensary. Ebad had a lathi in his hand and on being question by Dr. Salam said that he was Ebad and that he had been sent there by condemned‑prisoner Ayz uddin. At about I a.m. Dr. Salam went to the nearby mosque to say his prayer and asked P. W. 1 to wait for him in the dispensary. Having waited for 15 minutes P. W. 1 apparently became impatient and he started for his house with a lantern in his hand with the idea of seeing Dr. Salam en route, as the mosque lay on his way home. As P.W. 1 approached the north‑east corner of the mosque he saw condemned‑prisoners Abdul Wahed, Abdul Ahad, Obedullah and Ayezuddia dragging forcibly Dr. Salam from the mosque. P. W. 1 found the mouth of Dr. Salem covered with a gamcha (napkin) and also saw appellant Ebad with a lathi in his hand. On the road to the south‑east of the mosque P. W. 1 saw other 5/6 persons (not recognised and named by P. W. 1 in the jute field lying to the east of the mosque. It was a moonlit night and P. W. 1 became dumb founded at what he had seen. Condemned‑prisoners Abdul Wahed and Abdul Ahad, who were armed with a knife and a lath! respectively, having noticed P.W. 1 threatened to cut him to pieces. P.W. 1 was, however, ultimately let off after a promise had been extracted from him not to dis close what he had seen to anybody. Condemned‑prisoner Ahad broke the chimney of the hurricane of P. W. 1 and both the sleeves of his shirt were torn due to struggle with the aforesaid two prisoners. P. W. 1 Sachin immediately ran to the house of P. W. 34 Masiruddin (who subsequently became Chairman of the Dayarampur Union Council) and told him all that P.W.1 had seen at the mosque. P. W. 1 further said that Dr. Salem had been dragged towards the river ghat to the south of the mosque and that the former apprehended that Dr. Salam might have been killed by those miscreants by that time. P. W. 34 Masir called a number of persons and they, too, heard of the occurrence from P. W. 1 and from Masir. They all then proceeded towards the mosque which lay en route to the river hat, and on the way they met P. W. 2 Esaruddin Khan and P. W. 3 Taseruddin Pk. both of whom were then returning from Baneswar hat. P. Ws. Esaruddin and Taseruddin reported that they had seen condemned prisoners Fazu Kazi, Golam Rabbani, Azhar Molla and Mazir Sardar near the Union Council Office going in a great haste towards Nvest with a potla (bundle) in the hand of the said Fazu Kazi, and that the wearing clothes of all these condemned‑prisoners were seen wet. They searched for Dr. Salam everywhere including the river but could not find him. In course of their search P. W. Masir's party found appellant Ebad concealed in the north of the house of P. W. 1.1 Meghnath Shaha situated in Dayarampur Bazar. Appellant Ebad was caught in front of the dispensary of Dr. Abdus Salam and on being questioned about the whereabout of Dr. Salam he made an extra‑judicial confession and said that while Dr. Salam was saying his prayers in the mosque the four condemned‑prisoners, namely, Wahed, Ahad, Obedulla and Ayzuddin gagged the mouth of Dr. Salam with a gamcha (napkin) and dragged him out of the mosque while appellant Ebad was standing on the road near the mosque with a lathi in his hand. Ebad further disclosed that condemned‑prisoners Fazu Kazi, Golam Rabbani, Azhar Molla, Mozir Sardar and appellants Azizur Rahman, Khoda Bux, Munser Mondal and Azhar Mondal were then standing in a jute field nearby and that they had all joined in taking away Dr. Salam to the river ghat. At the river ghat, Ebad proceeded to state, Dr. Salam was put into shallow water of the river and thereafter condemned‑prisoner Wahed slaughtered Dr. Salem with a knife and severest the head from the body. The other 12 accused persons caught and helped Wahed in slaughtering Dr. Salam. Condemned‑prisoner Wahed then washed the severed head of Dr. Salem in the water of the river and folded it in Dr. Salam's lungi and jama (shirt) into a potla (bundle) and handed it over to condemned‑prisoner Fazu. Ebad futher stated that the condemned‑prisoner Wahed then cut the belly of Dr. Salem and threw his body into the river. 'There after condemned‑prisoners Fazu Kazi, Golam Rabbani, Azhar Molla and Mazir Sardar went away towards west taking Dr. Salem's severed head in the potla. It was on hearing this confession from Ebad that P. W. Masir sent some people including P. W. Abdul Kuddus to catch and bring condemned prisoners Wahed, Ahad, Obeduliah and Ayzuddin, and the two condemned‑prisoners, Wahed Kazi and Obedullah were then brought near the dispensary of Dr. Salam where both of them made similar extra‑judicial confessions implicating themselves as well as the other accused persons in the crime. P. W. 10 Kazi Abdul Kuddus was then sent to the Police Station to lodge a First Information Report, and it was lodged at Bagatipara P. S. on the 7th August 1966, at 6 a.m. P. W. 39 K. Zaman, Investigating Officer, visited the mosque and river ghat on the same day and found certain alamats at both the places and seized the alamats. The headless body of Dr. Salam was recovered from the river in the afternoon of 8th August 1966. The dead body was identified with reference to some distinguishing marks. After an inquest the dead body was sent for post‑mortem examination. In the opinion of the Doctor who held the autopsy the death of Dr. Salam was due to severing of head from his body. The other accused persons were found absconding and consequently is proclama tion, for their arrest and for attachment of their property was made. Condemned‑prisoner Ayzuddin was arrested on the 23rd of June 1966 and he first made an extra judicial confession, and subsequently on the 25th August 1966 also a judicial confession before a First Class Magistrate admitting his complicity in the murder of Dr. Salem. The condemned prisoner Ahad surrendered before the Court on the 17th August 1966. All the other accused persons were either arrested or they surrendered before the Court subsequently. Condemned prisoners, Wahed, Abad, Obedulla and Ayzuddin and appellant Ebad were charged under section 302/34, P. P. C. and they were also charged under section 364, P. P. C. Condemned prisoners Fazu Kazi, Gholam Rabbani, Maziruddin Sardar and Azaher Molla, and appellants Munser Mondal, Azizur Rahman, Khuda Bux Sardar and Azaher Ali Mondal were charged under section 302/34, P.P.C. An additional charge under section 120‑B of the Pakistan Penal Code was framed in the Court of Sessions against all the 17 prisoners.
The defence taken by the accused persons at trial was (1) that the extra‑judicial confession of condemned‑prisoners Wahed, Obedulla, Ayzuddin and Ahad and appellant Ebad were procured by threat, intimidation, inducement and assault and the confessions were therefore retracted by them ; (2) that deceased Dr. Salam was a man of lose moral character and had therefore many enemies who might have killed him ; (3) that P. W. 1 Sachin Sarkar had ill‑feeling with the condemned‑prisoner Golam 1, abbani over cancellation of the food dealership of the former. P. W. Sachin Sarkar had also ill‑feeling with appellant Azizur Rahman, condemned‑prisoners Ayzuddin, Ahad, Fazu Kazi and Wahed Kazi over various matters ; (4) P. Ws. Sachin, Masir and some other P. Ws. belonged to the party of Dr. Salam and the accused persons belonged to the rival party, and as a result of rivalry and enmity between the two parties the complainant party falsely implicated the accused persons out of grudge and the prosecution witnesses deposed against the accused persons falsely due to this enmity ; (5) P. W. Masir had enmity with condemned‑prisoner Fazu Kazi as the former had defeated the latter in Union Council election and P. W. Masir had enmity with appellant Azizur Rahman in connection with certain pro perties. For all these reasons the defence alleged the complainant party falsely implicated the accused persons in the case.
All the 3 assessors who assisted the learned Sessions Judge at trial unanimously found all the 17 accused persons guilty of the charges framed against them except the charge under section 120‑B, P. P. C. against four or the appellants. The Assessors unanimously found appellants Sakiruddin Sardar, Jadu Sheikh, Aminuddin Sardar and Manik Ulla Sarkar not guilty of the charge under section 120‑B. 'The learned Sessions Judge on a consideration of the evidence in the case and having disagreed with the opinion of the Assessors in respect of the charge under section 120‑B, P. P. C. in respect of appellants Sakiruddin, Jadu, Aminuddin, and Manik Ulla convicted all the accused persons of the charges framed against them and sentenced the 8 condemned prisoners to death, and all the appellants including the condemned prisoners to various terms of imprisonment.
Mr. Abdus Salam Khan has appeared before us on behalf of all the condemned‑prisoners as well as the other appellants, while the learned Deputy Legal Remembrancer has appeared on behalf of the State.
Mr. Abdus Salam Khan has advanced several contentions against the impunged convictions and sentences. They are as follows :‑
(i) There is no eye‑witness of the occurrence either whole or in part.
(ii) The accused persons have been falsely implicated due to serious party factions and enmity.
(iii) The extra‑judicial confessions of Ebad, Wahed and Obedulla were not made : (i) as they were not mentioned in the F. I. R., (ii) if made, they were not voluntary as the confessions were the result of beating and torture ; (iii) the state ments attributed to the 3 confessing accused persons were not made in the manner stated by the prosecution ; (iv) the con fessions are not true ;
(iv) The judicial confession of Ayzuddin is not only self- excalpatory but it is also inconsistent with the other evidence in the case.
(v) There are discrepancies in regard to the seizure of the alamats and consequently their, seizure is of no value to the prosecution.
Mr. Salam Khan has also contended that the story as enfolded by the evidence of witnesses in the case is inconsistent with the story of the occurrence as given in the F. I. R. and this inconsistency has affected the prosecution case.
In order to appreciate properly the evidence against the different convict. we think it desirable to put them under 3 distinct classes. We put the appellant Ebad and the 4 condemned prisoners, namely, Ayzuddin, Obedulla, Wahed and Ahad in group `A'. We put 4 other condemned‑prisoners, namely, Fazu Kazi, Azhar Ali Molla, Golam Rabbani and Maziruddin Sardar under group `B' and we put the rest of the convicts under group `C'. We may state here that Mr. Abdus Salam Khan also accepted this grouping in course of his arguments.
So far as the charge of conspiracy under section 120‑B is concerned against all the convicts including she 8 condemned‑pri soners we may state at once that the evidence in support of their conviction under this charge is wholly inadequate. The evidence of conspiracy is furnished by 3 witnesses, namely, P. W. 6 Hayat Ali Sarkar, P. W. 7 Ardesh Ali Molla and P. W. 14 Azimuddin Mondal. The sun and substance of evidence of these 3 witnesses is that 2 days before the occurrence P. W. 6 saw convicts Gola m Rabbani, Azizur Rahman and Fazu and appellants Sakir Sardar, Manik, Aminuddin, Jadu Sk., Khoda Bux, Azhar Mondal, Azhar Molla, Munser Moridal and many others talking, and the witness heard the name of Dr. Salam and about money. P. W. 7 saw some of the aforesaid convicts coming out of convict Mazir Sarkar's house. On the night preceding the occurrence P. W. 14 saw convicts Munsor Mondal Mazir Sardar, Sakir Sardar Manik and Jadu on a culvert, near the house of the father of convict Azhar Molla, and heard some of these persons saying that it was impossible to live in the country without cutting the head of Dr. Salam. On query P. W. 14 was asked to go away and not to bother about this. None of these witnesses, appears to have reported about this matter to anybody contemporaneously although P. W. 14 now says that he reported the matter to Dr. Salam and the latter said that Allah was there. In the absence of any evidence of such corroboration we find it difficult to rely upon such vague evidence of' these 3 witnesses. It may be mentioned here that in spite of this evidence the Assessors unanimously found the appellants Sakir, Jadu, Amin and Manikullah not guilty of the charge under section 120‑B of the Pakistan Penal Code. We; therefore, find it unsafe to rely on these evidence for the purpose of maintaining the conviction of all the convicts under section 120‑B of the Pakistan Penal Code. We may further mention that the learned Deputy Legal Remem brances has frankly conceded that so far as appellants Sakir. Jadu, Aminuddin and Manikullah are concerned there is hardly any evidence against them and that with regard to the other convicts also it was difficult to press for their conviction under section 120‑B.
We now proceed to discuss the cases of the convicts put under group `C'. The convicts under this group may be sub‑divided into 2 sub‑groups, namely, group 6 (1) wherein we put convicts Shakir, Jadu, Aminuddin and Manikulla, who have been charged only under section 120‑B, and group C (2) wherein we put appellants Azizur Rahman, Khoda Bux, Azhar Ali Molla and Munser Ali who have been charged both under section 120‑B and under section 302/34, P. P. C.
The cases of the convicts placed in group C (1) have been disposed of while dealing with the charge under section 120‑B against all the convicts. In addition, we may mention that the names of 3 of them namely, Sakiruddin, Aminuddin and Manikullah were never mentioned in the F.I.R.
There remains the convicts, namely, Azizur Rahman Khoda Bux, Azhar Ali and Munser Ali under group C (2). So far as the charge under section 120‑B is concerned it has been disposed of as mentioned already. In regard to the charge under section 302/34 we may state that save and except the extra judicial confessions of Ebad Wahed and Obedulla there is no evidence to connect them with the murder of Dr. Salam. the position, therefore, is that except the aforesaid confessions of co‑accused persons which were subsequently retracted there is no evidence against these four prisoners to implicate them in the offence of murder. The convictions and sentences of the 8 convicts under group `C' therefore, cannot be sustained.
It is true that in his judicial confession condemned prisoner Ayzuddiu has mentioned the names of Azhar Ali Mondal and Munser Ali in connection with certain conspiracy ; but it may be pointed out that this confession was made for the first time on 2xh August 166, and that in none of the earlier confessions of Ebad, Wahed and Obedulla there is any mention of the conspiracy.
We now come to group `B' which contains convicts Fazu Kazi, Azhar Ali Molla, Golam Rabbani and Munser Sardar. So far as these 4 prisoners are concerned the only evidence against them is given by P. W. 2 Esaruddin and P.W.3 Taseruddin. In addition they have been implicated in the confessions of four co‑accused persons. P. Ws. 2 and 3 had gone to Baneswar hat to purchase cattle. On their way back from the hat P.W. 2 halted at his father‑in‑law's house en route, and then both the witnesses were returning to their respective houses. On the way they met the aforesaid 4 prisoners at about 1 a.m. on 7th August 1966. The 2 witnesses saw the said 4 prisoners going away fast and also found their wearing apparel drenched. The witnesses also saw prisoner Fazu Kazi having a potla (bundle) in his hand. These persons were seen near Union Council's office going from east to west. Both P. Ws. 2 and 3 reported this matter to some of the witnesses for prosecution whom they met subsequently at Bhopapara close to Dayarampur Bazar. P. Ws. 1, 3, 5 and 9 among others appear to corroborate this story.
The defence, however, has seriously questioned the story of P. Ws. 2 and 3 visiting Baneswar hat for the purpose of purchasing cattle and their presence at Dayarampur Bazar or near about it in the early hours of 7th August 1966. In this connection Mr. Salam Khan has argued that if, in fact, P. Ws. 2 and 3 had given out such an important story it must have found mention in the F. I. R. which was lodged subsequently in the morning. Mr. Salam Khan has also drawn our attention to the omission of the name of prisoner Azhar Ali Molla in the F. I. R. By itself the evidence of P. Ws. 2 and 3 is not enough to sustain the conviction of these prisoners under section 302/34, P. P. C. Their evidence, merely is that they saw shortly after the occurrence, not far from the place of occurrence, these 4 prisoners with drenched clothes on going away at a quick pace and that one of them was seen carrying a bundle in his hand. This evidence alone, however, much suspicion it may cast upon these 4 prisoners, is wholly insufficient to sustain their conviction on a charge under section 302/34, P. P. C. It is true that all the 4 confessing convicts have implicated these 4 prisoners in the murder of Dr. Salam in one way or another but they being the statements of co‑accused are no evidence against the 4 prisoners although they may be taken into consideration for the purpose of lending assurance to any independent evidence, if any, which is sufficient by itself to sustain their conviction. As we have already noticed, however, the only independent evidence existing against them is not enough to sustain their conviction and con sequently the statements of the co‑accused against them are hardly of any value against them. It may also be mentioned here that the prosecution story that after the head had been severed it was handed over to some person who carried it away was never men tioned in the First Information Report. Besides the fact that no attempt was made either by the people or the police to trace the head throws considerable doubt on this part of the prosecution story. We therefore find that there is no evidence against these 4 prisoners to sustain the charge under section 302/34, P. P. C.
We finally come to the 5 prisoners put under group `A' namely, appellant Ebad and the four condemned‑prisoners, Ayzuddin, Obedullah, Wahed Kazi and Ahad.
As regards these 5 prisoners there are the evidence of P. W. 1 Sachin who saw prisoner Ebad present at two places on the fateful day, namely, near Dr. Salam's dispensary just before the occurrence and near the mosque when the four condemned prisoners, Ayzuddin, Obedullah, Wahed and Ahad were dragging and taking away forcibly Dr. Salam towards the river ghat after having put a gamcha on his mouth. There is also the evidence of discovering of alamats at both places, namely, near the mosque and the river ghat. In addition 4 of the prisoners, namely, Ebad, Wahed, Obedullah and Ayzuddin, each of them has made a confession implicating himself as well as other co‑accused in the murder of Dr. Salam. Although P. W. 1 Sachin has been subjected to criticism in regard to his character by Mr. A. Salam Khan, we have hardly found anything against the witness to disbelieve him. In the first place he is a member of the minority community and has, therefore, no relationship with any party. ill the suggestions which might be taken as the basis for the existence of ill‑feeling between P. W. 1 and some of the convicts have been categorically denied, and there is no material in support of such suggestion. The suggestions were mainly directed towards establishing ill‑feeling between the witness and the convicts Golam Rabbani, Azizur Rahman, Ayzuddin, Ahmad, Faze Kazi and Wahed Kazi. Having regard to our findings above we are now mainly concerned with the suggestions in regard to prisoners Ayzuddin, Ahad and Wahed Kazi. No such suggestion has been given in regard to appellant Ebad and condemned‑prisoner Obedullah. As regards Ayzuddin the suggestion was that P. W. Sachin had ill‑feeling with the condemned‑prisoners Ayzuddin and Ahad in connection with the joint business in rice and dal and that the witness also had a quarrel with condemned‑prisoner Ahad in connection with the possession of the land of the uncle of the witness. Both the suggestions are baseless and have been categorically denied. Similarly the suggestion in regard to Wahed Kazi was that P. W. 1 had abducted. a girl and the condemned‑prisoners Wahed Kazi, Ahad and Fazu Kazi chastised him. This suggestion has also been denied. The witness has admitted that his son was with one chintaharan who had abducted a girl and a case was brought against both of them. The evidence of P. W. 1 appears to be straightforward and convincing and we do not find any reason to disbelieve his evidence. In fact Mr. Salam Khan himself found it difficult to impugn the credibility of this witness. The gist of the evidence of P. W. 1 is that he was with Dr. Salam till about 1. a. m. on the…
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