It is my unpleasant duty to present another batch of cases to the reader from the Punjab which reveal a state of things that is utterly unbearable. It is to be wished that H. E. the Viceroy will end the growing anxiety by appointing the promised Committee of Inquiry without delay. Mr. Montagu has said from his place in the House of Commons that at least two out of the three Judges of the Punjab Special Tribunals were Judges of the High Court of three years standing. The public have been recently informed that where the members were not High Court Judges, they were eligible for that high post. The poignancy of the sorrow that the atrocious injustices such as I have had the painful duty of exposing have caused, is increased by the knowledge that perpetrators of these injustices are judges in whose judgments the people have been accustomed to put the utmost faith. This unevenness of temperament can only be accounted for by the supposition that the trained judicial intellect of the Judges must have suffered temporary aberration by the events of the Punjab. The desire to secure for Englishmen almost absolute immunity from physical harm from the 'natives', by inflicting exemplary punishments on someone or other, appears to have been the master passion overruling discretion, wisdom and justice. It is not possible for me to understand the judgments that have come under my notice on any other hypothesis. These reflections are caused by a perusal of the judgment and the evidence in the Hafizabad case. The full text of the judgment and the evidence material to the case to be examined, will be found printed elsewhere in this issue.* During the whole course of my practice of law, by no means inconsiderable, extending over an unbroken period of nearly twenty years, I have never come across cases in which capital punishment has been so lightly pronounced, on the flimsiest evidence taken down in a most perfunctory manner, as appears to me to have been done in the Hafizabad case.
The case has been sent to me in regard to only one of the nineteen accused tried viz. Karamchand, the nineteenth accused—a student of the Dayanand Anglo- Vedic College. But I have no hesitation in saying that there was no evidence before the court to warrant a conviction against any of the accused for waging war. The Judges had a choice of offences for conviction. The accused were charged under Sections 121, 147, 307, 486(?), and 149 of the Indian Penal Code. Section 147 relates to rioting, carrying with it a maximum penalty of two years' imprisonment. Section 149 renders members of an unlawful assembly liable to the same penalty as any other member thereof. Section 307 relates to attempts to murder carrying the maximum penalty of ten years. Section 486 appears to be an erroneous copy, it has no relevance to the evidence led before the court. It was thus easy enough to convict on any of the milder sections if the Judges had so chosen. They however 'scented' war in every act of the crowd during those three or four days of April.
Whilst therefore it is clear to me, as I hope it will be clear to every impartial student of the case, that the charge of 'waging war against the King' is unsustainable, in the absence of the specific evidence against the other accused, it is difficult to form a conclusive opinion as to their cases on the minor charges. I cannot however conceal from myself or the reader the very strong suspicion that the full text of the evidence will not disclose any ground for the statement of the Judges to the effect that "the orators had incited the crowd to take immediate and vigorous steps to overthrow the Government by raising as much opposition to it as possible.".Nowhere have I seen any attempt during those days of April to 'overthrow the Government'.
But I must confine myself to the case of Karamchand. These are the full remarks in the judgment about him:
"Karamchand, No. 19, was peculiarly guilty. He brought down the news of the Lahore riots. He gave a most garbled account of it. And by representing that the Lahore crowd had succeeded in beating the military, he gave the Hafizabad crowd reason to believe that their insurrection would be successful."
"We think," the Judges proceed, "that these four men deserve the extreme penalty." The three men who are bracketed together with him for capital punishment are supposed to have been among the active assailants of Lieutenant Tatam. Not so Karamchand, as is clear from the passage from the judgment just quoted.
Let us look at the evidence against the accused. Two of the prosecution witnesses who were on the train that carried Lieutenant Tatam have given only identifying evidence. They are unable to say that Karamchand himself did anything at all. Prosecution witness No. 5 first identified Karamchand 18 or 20 days after the 14th April. Witness No. 6 identified him 10 or 12 days after the said date. Both the witnesses, it is admitted, were utter strangers to Karamchand. The gravamen of the charge against Karamchand is, not that he did anything on the 14th, but that he brought some news from Lahore on the 11th. This is the exclusive evidence about Karamchand given by the Head Master of the D. B. School:
"Karamchand is a student of the D.A.V. College, Lahore. I saw him on the 11th evening. He was talking about the riots of Lahore that the people are being fired upon with a machine-gun at Lahori Gate are not retreating." (I have taken the sentence exactly as it occurs in the original copy before me—M. K. Gandhi.). "He was going to say more but I stopped him. I advised him that it is not good to say such things at Hafisabad.
He was my old pupil. 6 or 7 people were present. This was outside the town on a footpath. He was excited. I left on the 12th."
Cross Examination: Accused does not belong to Hafizabad. He went away when I warned him. I had not asked him what had happened at Lahore."
Prosecution witness 27 gave evidence corroborating that of the Head Master. This is all the evidence against Karamchand. It stands out clear as daylight that Karamchand's alleged talk about the Lahore riots took place on the 11th, that he spoke outside the town on a footpath in the presence of 6 or 7 people and that he stopped as soon as his old school master advised him to do so and went away; and that he does not belong to Hafizabad. I hold that the Judges' paraphrase of the above evidence is totally unwarranted. There is nothing in all the evidence about Karamchand to show that the crowd near the Railway station on the 14th was the same as the 6 or 7 people before whom he talked outside the town on the 11th about the Lahore riots. One fails to see what peculiarity the Judges found in Karamchand's case.
Let me note here that the Head Master and the corroborating witness give us no information regarding Karamchand's doings or whereabouts on the 14th April. Even if, therefore, Karamchand was present on the 14th April at the station, so far as the evidence enables one to see, he was a silent spectator of the cowardly conduct of the mob. But Karamchand says he was not there. He says he went to his village on the 12th. He produced four witnesses to prove that he was in his village Udhoki on the 14th April. I venture to suggest that there is just as much probability of Karamchand and his witnesses having told the truth as there is of the two witnesses for the prosecution being mistaken about the identity of Karamchand, regard being had to the fact that they had never seen him before, that they were taken to the jail to identify him 10 or 18 days after the event and specially when they never saw Karamchand doing anything active. Add to this the fact that the prosecution witnesses were only for a few minutes in the midst of the crowd and whilst, according to the evidence of the Grown, stones were being thrown at the first class compartment. It is not justice to sentence a man to be hanged on the very inconclusive testimony as to identify. Karamchand's father gives me further details to prove that the former was at his village on the 14th April. Naturally I am unable to make use of this - extraneous, though importantó evidence to prove his innocence. The father says in his letter that Karamchand's sentence has been commuted to 10 years' rigorous imprisonment. He is naturally not satisfied with it. I hope that His Honour the Lieutenant Governor of the Punjab will study the case personally, and if he does, I doubt not that Karamchand will be discharged. I hope too, that his co-accused who were sentenced to be hanged are at least alive so that their cases may be reviewed by the forthcoming Committee of Enquiry.
We, who are living in the Presidency, cannot but contrast the Punjab proceedings with those at present going on in Ahmedabad. Nothing that was done in Hafizabad could surpass the wicked and wanton cruelty of the mad mob at Viramgam. And yet this Tribunal, I am thankful to be able to note, has carried on the enquiry with judicial calmness, giving every opportunity to the counsel for the defence to bring every fact to light and have not found it in their hearts to impose the capital punishment on a single person in that case. So far as I know, its judgments have not provoked much hostile criticism, whereas almost every judgment of the Punjab Tribunals that has come to light has been subjected to the severest comment. Only the promised Committee of Inquiry can solve the discrepancy. Meanwhile I hope the public will demand full and unconditional discharge in cases of palpable injustice like that of poor Karamchand.
Young India, 20-8-1919