P L D 1962 Dacca 671 (PLP)

"C. S. under section 409/467/109, P. P. C. received against accused Azahar Ali, 2 Hasan Ali Chowdhury and 3 Mohiuddin with the sanction order of the Government. The case is revived. Summon the accused fixing 31‑3‑59." The learned Magistrate has not recorded any reason for the revival after such a long time. As it appears the learned Magistrate passed his order of 15th November 1958, after seeing the Report of I. O. and S. P.

14. The Magistrate has not recorded any reason for the revival of the case on 4th March 1959. His order of 27th November 1958, seems to give some hint of the reason which is as follows : "Seen prayer of C. S. T. D. A. B. to revive the case. This may be considered when C. S: will be received." Apparently the learned Magistrate was not prone to consider the revival in the absence of the C. S. Reliance has been placed by the defence in this connection on the decision in Brindaban Chandra Saha and others v. The Emperor (51 C W N 464).

15. In that case the prosecution having failed to produce any witness notwithstanding repeated adjournments, the accused persons were discharged under section 253 of the Code of Criminal Procedure.

16. After once refusing to review the order of discharge, as no proper ground had been made out, the Magistrate ultimately did so, upon the ground that the order of discharge must have had a salutary effect on the prosecution and that there would be no further delays.

17. It was held that the order of revival must be set aside and the proceedings quashed.

18. In our present case the consideration of the revival petition was kept in abeyance until submission of charge‑sheet. That is, the object was to bring pressure on the prosecution to proceed with the case expeditiously.

19. No reason was assigned for the revival. But it is apparently because the discharge has salutary effect on the prosecution.

20. The decision cited has deprecated this practice and I find myself in agreement with that decision.

21. Mr. Birendra Nath Chowdhury, the learned Advocate for the State has argued by reference to the order of 1st November 1958, that the learned Magistrate revived the case on 4th March 1959, because on that date the hand‑writing expert's opinion was received by the Magistrate. The order of 4th March 1959, records no reason at all and makes no reference to receipt of the opinion of hand‑writing expert.

22. In the absence of any reason being expressed by the Magistrate, it is difficult to support the revival order and there seems to be some substance in the contention of the learned Advocate.

23. The challenge of the order of revival assumes more force in the light of the next ground, namely, that the accused were not supplied with the copies of the statement under section 161 of the Code of Criminal Procedure. The ground is ground No. 6 of the memo. of appeal which is as follows:‑ "For that the non‑compliance of the provisions of section 161 Criminal Procedure Code and the failure to grant copies of statement under section 161, Criminal Procedure Code which was admittedly recorded by P. W. 7 Assistant Inspector, D. A. B, have raised a presumption under section 114‑C, of Evidence Act in favour the accused." Among the decisions cited in support of this ground, the one in Mahbubar Rahman v. The State (P L D 1960 Dacca 344), a Division Bench decision of this Court need be mentioned. In that decision it was held as follows: "The objection of subsection (7) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958, is as follows (i) to inform the accused as to the nature of the evidence to be given by the witnesses for the prosecution with a view to give him opportunity to prepare himself to meet the case; (#) to allow the accused to use the statement to contradict the witnesses in cross‑examination. It is needless to say that the right given to the accused by the subsection is a very valuable right for cross‑examination of the prosecution witnesses. Any attempt to deprive the accused of this privilege, which this subsection confers on him may result in serious prejudice to the accused. Failure to supply the accused with the statements of the witnesses one week before the commencement of the trial, as required by section 6 (7) of the Pakistan Criminal Law (Amendment) Act, even though it constitutes a breach of the mandatory provision, cannot be said to be an illegality vitiating a trial or proceeding and, unless the accused is pre judiced, it will not warrant quashing a conviction." Court's attention has been drawn to the following in cross -examination of P. W. 7: ‑ "XXd for accused Mohiuddin: ‑I recorded the statement of two witnesses under section 161, Cr. P. C. But I do not see those statements in the record. I visited the Khorda Bakhail Road on which day I cannot say. Then says I went on 5‑12‑

57. It is not written in the diary. No separate statements under section 161 Criminal Procedure Code were recorded. XXn. for other accused declined." Attention has been drawn also to the orders of the learned Special Judge dated 17th August 1957, 4th April 1960, and 5th May 1960. 17‑8‑59: ‑"After issuing summonses from here send the record to the Assistant Sessions Judge, Kushtia requesting him to ask P. P. to supply copies of previous statement if any to the defence at least a week before the date fixed." 4‑4‑60: ‑"After issuing summonses from here send the record to the Assistant Sessions Judge, Kushtia requesting him to ask P. P. to supply copies of previous statement if any, to the defence at least a week before the date fixed." 5‑5‑60: ‑"Defence files a petition alleging that they have not been supplied with copies of previous statements under section 161 Criminal Procedure Code. Let the petition be kept with the record."

24. It appears that the defence were not at .all supplied with the statements inspite of the most frantic appeals of the learned Special Judge him elf and what is more, the investi gating officer has stated that those statements are not in the record.

25. The decision cited, namely, Mahbubur Rahman's case. I decided that when the accused has been prejudiced by reason of the statements not being supplied, conviction is to be quashed. There is no doubt that the accused in the present case has been prejudiced by the non‑supply of the statement and the only question is as to whether the case should be remanded for retrial, after quashing the present conviction.

26. I do not see any justification for an order for rehearing the case. The investigating officer has stated that the statements are not in the record. It seems that the case had been hanging over the head of the appellant ever since 1957. Further on the merits it appears that no photographic enlargement was taken of the thumb‑impression and the evidence of three D. Ws have been discarded simply because one of the four D. Ws., namely, D. W. 3 who was declared hostile by the defence, contradicted the other three D. Ws. Moreover P. Ws. 2, 3, 4 and 5 are not entirely indepen dent.

27. Further one of the labourers, namely, Ijjat Ali in whose name Rs. 120 is alleged to have been misappropriated is already dead.

28. Considering all the circumstances as above, the only proper order would be that of acquittal.

29. The appeals, therefore, are allowed and the conviction and sentences of the three appellants are set aside. They stand acquitted of the respective charges and their bail bonds are cancelled. S. B./A. H. Appeals allowed.