P L D 1966 Dacca 432 (PLP)

Ans.‑If the skull had been fractured or cut the injuries would have been called grievous. In this case in which the injuries are only ?th inch in depth, it is only the scalp muscles which are ?th of inch in thickness which were cut and not the skull bone." P. W. 7 is the S. I. who investigated the case. He stated that he found no alamat or mark of struggle in the alleged place of occurrence. Having gone to the spot on 9‑8‑1962 he could not naturally have seen or found anything at the spot. He also stated in reply to Court that the weapon used was not recovered. The learned Assistant Sessions Judge found that the accused had attacked Md. Siraj coming stealthily from the back and that the injuries were not really dangerous to life or of grievous nature. Later in his judgment, however, the learned Judge has intro?duced a rather contradictory note by observing as follows:‑‑

"If the evidence of the P. Ws. is taken absolutely at the face value it would appear that the accused who was inflicting these injuries did not give any further blows and ran away only because of the approach of the P. Ws. 2, 4 and

5. Accepting the evidence entirely at the face value it would really be difficult to resist the inference that the accused in inflicting these 3 dao injuries on the head of the P. W. 1 was actuated with the intention of causing such injuries as he knew or must have known to be likely to cause his death. In any case there would in that case be no manner of doubt that the accused in inflicting these injuries had, if not the intention at least the knowledge that he was likely by the infliction of such injuries to cause death. If, therefore, I accepted the evidence at the face value the question that would fall for precise deter?mination would be whether the accused has been guilty of the offence under section 307 or of the offence under section 308, P. P. C." We find, however, later in the judgment that in examining the question as to the offence being one under section 307 or 308 of the Penal Code he has observed and found as under:‑

. "The evidence of the P. Ws. 1, 2, 4 and 5 to the effect that with the P. Ws. 2, 4 and 5 not far from the P. W. 1 and with the P. W. 4 only 20/25 cubits away from the P. W. I the accused came and showered dao blows on the head of the P. W. 1 with?out even the P. W. 4 in spite of seeing him coming with a dao in his hand being able to intercept him or being able to raise a timely alarm seems really difficult to believe, specially in view of the F. I. R. and the evidence of the P. Ws. themselves making out that the accused was always prone to quarrel and come out with a dao and do various mischiefs. The P. Ws. are also clearly suppressing something when they do not say what was the immediate cause and occasion for the accused striking such blows on the head of his step‑brother for the first time in their lives. Again it seems too much of a coincidence that to strike stealthily blows from behind the accused should have chosen this time of broad day‑light and this place where so many of their relations were near about and when the P. W. 4 carrying tobacco for his father was just about 20/25 cubits away. The P. W. 4 also names about half a dozen persons who came after the occurrence none of whom has been examined. This also raises a suspicion that the circumstances of the infliction of the injuries were different from what has been deposed to. Then there is the delay of a week in lodging the F. I. R. Even if the account of the P. Ws. 1 and 4 that the accused had threatened the P. W. 4 with a dao after the occurrence and that, therefore, the P. W. 4 had fled to his sister be accepted even that would not at all be any adequate explanation of the delay of further 4 days after he reached his father at Tajpur, nor is the explanation of the P. W. 2 that for fear of attack by the accused he did not lodge the F. I. R. at all acceptable. In all these circumstances coupled with the fact that this undefended accused by reason of not being able to understand the full tenor and purport of the evidence on account of being deaf and dumb has not been able to challenge their evidence and the case has almost gone ex parte against him in his presence, it seems fairly clear tat the prosecution is not giving out the whole truth about the circumstances and the context in which the blows were struck, and it seems highly doubtful if the blows were struck in the manner deposed to by the P. Ws. Section 307 or for the matter of that section 308, P. P. C. are difficult sections and there is always a danger of applying them where the necessary intention, knowledged and the circumstances did not exist and the offence of the accused amounts to only hurt or grievous hurt." The reasons as given above for negativing offence under section 307, P. P. C. goes to the very root. If the witnesses cannot be relied on, if they are suppressing and if the late F.I.R. and other circumstances raise suspicion, that should be the end of the case as a whole against the accused even of the offence under section 324 of the Pakistan Penal Code. Our view is also that there has been a suppression and that the delay in lodging the F. I. R. apart from other circumstances could not be satisfactorily explained. The learned Assistant Sessions Judge, as it appears, observed that he refrained from convicting under section 307 of the Pakistan Penal Code, because according to him, it was a difficult section and because in his opinion, the circumstances were likely to be different from what had been deposed to. We find some inconsistency in this attitude of the learned Assistant Sessions Judge. If the witnesses suppressed and the circumstances were different, it makes no difference whether the injury on the bead was superficial and on the skull only or deep, as the learned Assistant Sessions Judge has sought to make out in finding against the accused under section 324 of the Penal Code. Having considered the evidence and circumstances for our?selves we feel that the accused could not be convicted on this evidence even under section 324 of the Penal Code. The learned Assistant Sessions Judge in his letter of reference observed that the accused could not really understand the proceedings and that though he understood the charge very faintly by the sign and gesture of the Public Prosecutor, he could not really understand the tenor and purport of the evidence in the trial. He also observed that it was difficult to follow what the accused wanted to say by the gestures he made. The learned Judge's final view was that the accused could not at all understand the proceedings and even the nature of the charge. The position being as above it is clearly a case for reference under section 341, P. P. C. which reads as under:‑

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341. If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit." We have not been able to lay our hands upon any decision of this Court reported or unreported on the interpretation of the present section. There are, however some West Pakistan and Indian decisions on the subject. The learned Deputy Legal Remembrancer has drawn our attention to the decision in Muhammad Aslam v. The Crown (P L D 1954 Lah. 569). It was held in this decision as under:‑

"The power which High Court possesses on a reference made to it with regard to the case of an accused who, though not insane, cannot be made to understand the proceedings are given in section 341 of the Code of Criminal Procedure. When a case comes before High Court under that section it is open to the High Court to pass any order it considers fit in the circum?stances of the case. That order may be of sending the case back to the trial Court, to acquit the accused or, if he is proved to be guilty, to pass on him any sentence allowed by law. It was further held that though it was true that the signs and gestures made by a deaf and dumb may by proper interpretation be recorded to read like a rational statement, but that interpreta?tion in order to be reliable must proceed for an independent source. The decision in Emperor v. Ulfat Singh (A I R 1947 All. 301) indicates that where a deaf and dumb person is committed to stand his trial in the Court of Sessions or is convicted, a reference has to be made under section 341 as a measure of extra-precaution so that the High Court may satisfy itself that, under the circumstances, it was a fair trial or enquiry and in the case of order of commitment the High Court may further give directions as to how the trial may proceed in the Court of Sessions. This case also shows that in dealing with a deaf and dumb accused charged with a serious offence it was essential for a Magistrate to record a finding whether the accused could be made to understand the proceeding before passing the commitment order. In the decision in Emperor v. A Deaf and Dumb accused (I L R 40 Bom. 598), it was held that though great caution and diligence was necessary in the trial of a deaf and dumb person, yet if it be shown that such person had sufficient intelligence to understand the character of his criminal act, he is liable to punishment. In this case the accused, a deaf and dumb person had been convicted of theft under section 380 of the Indian Penal Code and the proceeding had been submitted to the High Court under section 341 of the Criminal Procedure Code. This is a case of 1916 and Batchelor, J. delivering judgment for the Divisional Bench observed: "The law in England appears to be that though great caution and diligence are necessary in the trial of a deaf and dumb person, yet if it be shown that such person had sufficient intelli?gence to understand the character of his criminal act, he is liable to punishment." The learned Judge referred to Russell on Crimes, Vol. I, page 62, Archbold's Criminal Practice, page 11 and the old decision in King v. Elizabeth Steel ((1787) 1 Leach 451). He has also referred to the decision in Queen v. Bowka Hari ((1874) 22 W R 35 p. 72) and also to the decision in Queen‑Empress v. Reubin Samuel (1894) Ratanlal's Criminal Case p. 696 as authorities to show that the same is the law and practice in India. The decision in Crown v. unknown Deaf and Dumb (P L D 1952 Lah. 362) was to the effect that where from the observations made by the Magistrate that the accused a deaf‑mute, could understand the nature of the act, imputed to him, that he pleaded not guilty and that, by making gestures he admitted his previous conviction, it appeared that the accused was capable of understanding the proceedings held against him, the case was returned by the High Court to the Magistrate concerned for passing a suitable sentence against the accused. In the light of the above decisions we feel inclined to hold that the learned Assistant Sessions Judge rightly referred the case under section 341 of the Code of Criminal Procedure to the High Court but at the same time having examined the evidence and the circumstances for ourselves we find that the conviction of the accused under section 324 of the Pakistan Penal Code could not be maintained and hold that the proper order should be one of acquittal and we acquit the accused. The Reference is disposed of accordingly. We like to observe that the proper stage for the reference should have been when the enquiry resulted in commitment and not after the trial resulted in conviction. We realise that in the situation presented the learned Judge had to proceed with the trial and the proceedings could not be forwarded till the trial resulted in conviction. It appears that the Public Prosecutor who was prosecuting the disabled accused also acted as the interpreter of his signs and gestures in relation to the charges against him as well as the evidence adduced to substantiate the same. We are unable to appreciate this and in fact feel constrained to record our dis?approval seeing particularly that no attempt was made to secure the services of one familiar with the modes of expression used by the poor fellow be reft of speech and hearing both. We do not think it would have at all been difficult to secure such an inter?mediary from his relations and neighbours. It is important that trials should be fair as it is to make them appear to be so. Another important feature which too we cannot pass over without a word is that the accused went undefended at all stages. Having regard to the facts and circumstances of this case we feel that in case of this nature arrangement should be made for defence of the accused by the State. When we finished the hearing of the case on 19th January 1965 a letter from the Assistant Sessions Judge, Sylhet dated 13th January 1965 addressed to the Registrar of this Court was placed before us. It is stated in the said letter that the accused died in the jail hospital on 10‑1‑

65. This is the most distressing aspect of the case. By reason of the inordinate delay in making this simple Reference ready for hearing, the unfortunate accused, found not guilty by us now, could not see himself vindicated before his death. The poor man suffered in prison since his conviction on 14‑5‑1963 when the normal sentence even under section 324 of the Pakistan Penal Code is about a year and this Reference dated 16‑5‑1963 with the record reached this Court as long ago as 22‑5‑1963. The office appears to have taken more than one year and seven months to make it ready and place it in the list of the cases ready for hearing which was done on 4‑1‑1965. This is indeed most deplorable and the matter is being dealt with separately. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A??????????? .?????????????????????????????????????????????????????????? Reference disposed of accordingly.