P (PLP)

Criminal Procedure Code (V of 1898), S. 367 Judgment after remand and retrial of ease‑Must be complete and self‑contained one. When the Magistrate was disposing of the case afresh according to law, he should have written a complete and self‑contained order covering not only the evidence led on the side of the defence in the retrial but also the prosecution case and the evidence of the witnesses adduced in order to prove the prosecution case and a discussion of the salient points arising from their evidence. As the Magistrate has failed to do so, the case will have to be sent back to him to write a proper order. A. F. M. Mesbahuddin, for Opposite Party. ELLIS, J.‑The petitioner, Majibul Haidar was convicted under section 447 of the Pakistan Penal Code and fined Rs. 30 by Mr. M. F. Hoque, Magistrate 'of the 1st class of Noakhali, on the 31st of August, 1948. Art application to the Sessions judge was rejected on the 21st of " June, 1950, and on the 4th of September, 1950, the applicant moved this Court in the exercise of its criminal revisional jurisdiction and obtained a rule calling on the District Magistrate of Noakhali to show cause why the conviction and sentence should not beset aside. Mr. Obaidul Huq has appeared before me on behalf of the petitioner. Four grounds are to be found in the petition filed before this Court and two of these grounds have been pressed before me by Mr. Obaidul Huq. The fourth ground is that as the dispute between the parties was a boundary dispute, the Magistrate ought to have held that there could have been no offence under section 447 of the Pakistan Penal Code. This argument, of course, has no substance and it fails on the evidence of the petitioners' own witness D. W. 2 on whose evidence it was quite clear that there was a definite boundary of the land in question. Ground No. 3, however, states : " For that conviction on a discussion of D. Ws. is illegal ". It is pertinent here to observe that orginally the present petitioner Majibul Haidar was tried along with three other persons and they were all convicted. Ultimately they moved this Court and as it was discovered that the Magistrate have not complied with the mandatory provisions of section 342 of the Criminal Procedure Code, the convictions and sentences of the four petitioners were set aside and the case was remanded to the learned Magistrate for disposal according to, law. That order was passed by this Court on the 27th of January, 1948. When the case went back again to the learned Magistrate, he did examine the accused individually under section 342 of the Criminal Procedure Code, and thereafter the accused persons examined defence witnesses in their own behalf. When the Magistrate came to write his judgment, he acquitted three of the four accused persons whom he had previously convicted, and only convicted the present petitioner. When he came to record his second order on the 31st of August, 1948, the Magistrate began in the following manner : " In the judgment of the 'previous trial the facts of the case have been elaborately discussed and all the 4 accused persons having been found guilty under section 447 I. P. C. were sentenced accordingly. But in that trial the accused did not adduce any defence evidence. " On being sent back for retrial the accused were examined HG afresh individually under section 342 Criminal Procedure Code in which they‑pleaded not guilty and examined as many as 6 defence witnesses Thereafter the Magistrate proceeded to deal with the evidence of these defence witnesses and the documentary evidence in this case and came to the conclusion that the petitioner was guilty of an offence under section 447 of the Code. His method of disposal of the case did not commend itself to the petitioner who moved the Sessions Judge of Noakbali on the 18th of September, 1948, and, amongst other things. urged the following grounds :‑ " (3) For that the learned Magistrate acted most illegally in convicting the petitioner by judgment which disregards almost all the provisions of section 367 Criminal Procedure Code. " (4) For that the judgment in question by itself being in complete and fully dependent on his previous judgment which has been set aside by the Hon'ble High Court, the conviction cannot legally stand. " (5) For that as the judgment in question does not at all show the case and evidence of the prosecution far from any discussion on them, cannot in any way be allowed to stand ". It is quite clear that there is much force in the grounds urged before the Sessions judge and subsequently urged before me. The observations of the learned Magistrate are in effect merely a supplement to his previous order which, by the way, does not find a place in the record as it has been submitted to this Court. The learned Magistrate should have noted that on the 27th of January, 1948, this Court set aside the convictions and sentences of the petitioners then before it, and it follows that when the Magistrate was disposing of the case afresh according to law, he should have written a complete and self‑contained order covering not only the evidence led on the side of the defence in the retrial but also the prosecution case and the evidence of the witnesses adduced in order to prove the prosecution case and a discussion of the salient points arising from their evidence. As the Magistrate has failed to do so, the sass will have to be sent back to him to write a proper order. The rule is accordingly made absolute; the conviction and, sentence set aside and the case once again remanded to the learned Magistrate with the direction that he shall write a complete and self‑contained judgment as required by law. A. H. Case remanded. P. L. D. 1951 Dacca 64 Before Amin Ahmed, and Afzal, JJ. CROWN versus AKAM MOLLA Criminal Reference (Under section 307 Code of Criminal Procedure No. 17 of 1950, decided on 26th January, 1951. (a) Criminal Procedure Code (V of 1898), S. 307‑Letter of reference should contain‑ grounds of opinion that verdict of jury is contrary to weight of evidence‑ Letter need not contain the expression for the ends of Justice.' In a reference under section 307 of the Code of Criminal Procedure where the Sessions judge thinks that the verdict of the jury is contrary to the weight of evidence, he should set out clearly and specifically on what portions of the evidence or what facts disclosed by the evidence. The judge should make the refer ence only if he is of opinion that the ends of justice require it. It is not necessary that he should verbatim copy out the expressions' `for the ends of justice' in his letter of reference. All that the section contemplates is that the requirements of the ends of justice must be the determining factor for the Sessions judge in making a reference. The primary essential requirements of the section must be clearly and unequivocally mentioned in the letter of reference, namely, the grounds of his opinion. A. I. R. 1921 Cal. 252, I L R 57 Cal. 1183, ref erred to. (b) Criminal Procedure Code (V of 1898), S. 276 Emfianelling Jurors‑Procedure. The order‑sheet of the Assistant Sessions judge showed. "Of the 12 Common jurors summoned in this case ‑only 7 such jurors are found present by calling aloud the name of all jurors one by one by lot in open Court. Of the 7 present jurors, 5 jurors as per overleaf are chosed by lot as no objection raised from either side and of the remaining 2 jurors one is lent to the Sessions judge as there was one juror short there and the other is discharged on the ground of his illness". In order to ascertain whether in this case a correct procedure of empanelling the jury has been adopted, we have to construe the meaning of the above and see for ourselves as to what exactly it conveys. In our opinion, it is capable of several interpretations. It may be that of 12 persons who were summoned as juror for this particular trial, 7 were found present when their names were called out in open Court by drawing their respective cards in which case it cannot but be deemed to be the first lottery. It may also be that out of the 12 jurors summoned, it was ascertained first as to how many persons were present in which case it may be urged that the judge is not required b3 law before he draws lots to ascertain how many of the persons summoned to serve as jurors were present. Both these interpretations, no doubt, are subject to objections but ‑we also find from the order‑sheet that of the 7 jurors who were present 5 jurors, were chosen .by lot as no objection was raised from either side and of the remaining two jurors one was, lent to the Sessions judge and the other was discharged on the ground of illness. We are to consider whether in these circum. stances a fair and impartial trial has been afforded to the accused. A third view may be taken that the 2 jurors who were left out after the jurors had been selected were the two most suitable and proper persons to sit as jurors and that this second lottery has, therefore, deprived the accused of a fair and impartial trial. Held, that the jury was validly constituted and that the accused had a fair and impartial trial. 32 C. W. N. 221, I. L. R. 55 Cal. 371, 40 C. W. N. 1411 referred to. (c) Jury‑Verdict of‑Based on evidence‑Cannot be upset. What we have to see is whether the verdict of the jury is one which no reasonable body of men could have honestly reached on the evidence before them. The jury arrived at the verdict after hearing all the evidence. If the jury were of opinion that the accused committed robbery and not dacoity, we do not think that we can say that the verdict is one which no reasonable body of men could have reached. If the jury were prepared to accept that the evidence disclosed a case of robbery; there is no ground for interfering with the verdict. A.

141. Sayern, for Accused. Salah‑ud‑Din Ahmad, Acting Deputy Legal Remembrancer, for Crown. AFZAL, J.‑This is a reference under section 307 of the Code of Criminal Procedure by Mr. M. T. Ali, Assistant Sessions Judge of Jessore. The accused Akam Molla, a Young man of 26 years of age, was placed on trial before the learned Assistant Sessions judge and a jury on a charge of dacoity. The Jury returned a unanimous verdict of not guilty under section 395, Pakistan Penal Code, but guilty under section 392 of the Code. The learned Assistant Sessions Judge holding that the verdict is wrong, and against the weight of evidence has made a reference to this Court re commending that the unanimous verdict of the jury finding the accused to be not guilty under section 395, Pakistan Penal Code but guilty under section 392 of the Code be set aside and that the accused be found guilty under section 395 of the Pakistan Penal Code. The prosecution case, inter alia, is that a gang of dacoits numbering' 10' or 11 raided the house of one Bazlur Rahman Biswas and his brother Amir Biswas at about 1 to 1‑30 a. m. on the night of Sravan 1356 B. S. corresponding to July 25th 1949. During the raid the dacoits caught hold of Fuljan Bibi, sister of Bazlur Rahman assaulted her and after trying her down decamped with cash and ornaments. At the time when the dacoity was committed, Bazlur Rahman was not at home. He had gone to the residence of one Kader Baksha at a distance of about 800 cut bits from his house in connection with an arbitration proceeding. Having heard sounds of gun‑firing coming from the direction of his house, Bazlur Rahman and his other co‑arbitrators rushed towards, the house to see what was happening. On their way, they met some persons who told them not to proceed further as the dacoits had entered the house of Bazlur Rahman. At that time Bazlur Rahman heard the cries of his daughters, brother and sister 'coming from his (Bazlur's) hut. He paid no heed to their warning but proceeded towards his house. When he entered his house Bazlur Rahrnau saw one dacoit standing in the courtyard while another was seen standing in the verandah of his west bhiti hut. He entered the west bhiti but and found two dacoits there. Jolla One of them gave Bazlur Rahman two lathi blows over his arm and snatched away his hurricane lantern which he was then carrying and put it out. He was on the point of being wounded with a dagger when his sister Fuljan Bibi cought hold of the dagger and thus saved him from being hurt. Fuljan was injured and was also assaulted. She became unconscious as a result of the injury and beating. Bazlur Rahman further claims to have seen four dacoits coming out of the house of his brother Amir Ali. The dacoits went away after locking up Bazlur Rahman in his but from outside. The dacoits had also tied down Amir Ali in his house. His wife untied him. He came to the but of his brother Bazlur Rahman and learnt that his brother was, locked up in the room. Neighbours came, heard of the occurrence and saw the alamats. Thereafter Bazlur Rahman lodged a first information report. The police came, saw the condition of the house, seized some alamats, examined witnesses, arrested the accused and submitted charge sheet. The accused pleaded not guilty and his defence was that out of enmity he was falsely implicated. Mr. Salahuddin Ahmed, the Acting Deputy Legal Remembrances has appeared in support of the Reference and Mr. A. M. Sayem has appeared in opposition thereto. Mr. Sayem has raised preliminary objections which we proposed to deal with one by one. Mr. Sayem has contended before us, firstly, that in the letter of reference there is no mention by the learned Assistant Sessions judge of the fact, that in his opinion that it is necessary for the end of justice to refer the case to the High Court and accordingly it is not a proper letter of reference under section 307 of the Code of Criminal Procedure and should be rejected. In a reference under section 307 of the Code of Criminal Procedure where the Sessions judge thinks that the verdict of the jury 'is contrary to the weight of evidence, he should set out clearly and specifically on what portions of the evidence or that facts disclosed by the evidence. The judge should make the reference only if he is of opinion that the ends of justice require it. It is not necessary that he should verbatim copy out the expressions for the ends of justice' in his letter of reference. All that the section contemplates is that the requirements of the ends of justice must be the determining factor for the sessions judge in making a reference. The primary essential requirements of the section must be clearly and unequivocally mentioned in the letter of reference, namely, the grounds of his opinion. It appears that the learned Judge while referring the case to us under section 307 of the Code of Criminal Procedure has observed that the verdict of the jury‑ is wrong and against the weight of evidence. Apart from the above, as the whole case is open to us when hearing a reference, it will not be in the interest of justice to look into the letter of reference only and ignore the records. We have, however, been referred to the case of Emperor v. Tarib Ulla Sheikh and others, reported in A. I. R. (1921) Cal. 252 for the proposition that a reference under section 307 should be complete in itself and that it should not be necessary to refer to the I order to sheet for the particulars required by the section. In order to appreciate a particular decision one has to consider the facts of that case and see how far they apply to the facts ............... of the case in question. In our opinion, the case cited is dis tinguishable and is not on all fours with the facts of the present case. That was a reference under section 307 Criminal ‑Procedure Code made by the Sessions Judge, Pabna and Bogra, which came up for hearing before Beachcroft and Ghose, JJ. their Lordships sent back the case to the Sessions judge for him to make a proper reference under section 307 Criminal Procedure Code. In that case, it appears, the learned Sessions judge in his letter of reference stated that the reasons for the reference had been set forth in his order. For that order their Lordships had to refer to the order‑sheet in which the Sessions judge was of opinion that a murder was committed as an outcome of a conspiracy but it was not stated that he found, the accused to have committed it. The learned Jude did not state the grounds of his opinion or the reasons for making the reference beyond this that the jury's verdict was inconsistent. He did not state whether all ought to have been convicted or all ought to have been acquitted. He did not indicate what evidence he considered should be relied on or what discarded. It was for this reason that their Lordships observed that the reference did not sufficiently comply with the provisions of section 307 Criminal Procedure Code. Their Lord ships felt that they were entitled to know the reasons for the Judge's coming to a deferent conclusion from that of the jury. The case was accordingly sent back for making a proper reference. In doing so, their Lordships further observed that in their opinion a reference under section 307 should be complete in itself. In the present case, we find that the learned Assistant Sessions judge has taken pains to write out a full and complete letter of reference giving his reasons and grounds for his disagreement with the verdict of the jury. All the particulars required by the section appear in the letter of reference except that the words " for the ends of justice " are not mentioned therein but are mentioned only in the order‑sheet under order dated the ‑ 4th of September, 1950, when he made a reference to this Court. On an examination of the records, it appears from the order of August 31st 1950, that after the verdict had been recorded, the learned Assistant Sessions judge fixed 4th September 1950, for orders. On 4th September 19,50, the learned judge in his order specifically mentioned that he was of opinion that for the ends of justice the case should be referred to this Court under section 307 Criminal Procedure Code setting aside the unanimous verdict of the jury and for finding the accused guilty under section 395, Pakistan Penal Code and for sentencing him accordingly. It is, therefore, apparent from the aforesaid orders that at the time of making this reference the learned Assistant Sessions judge was of opinion that for the ends of justice the case should be referred to this Court and if he did not mention the words ` for the ends of justice' in his letter of reference that in itself, in our opinion does not affect the case at all. We may mention that in the case of ` Emperor v. Jogkar‑' reported in I. L. R. 57 Cal. 1183, Suhrawarny and Page, JJ., also held that a letter of reference ordinarily should state the case, the verdict of the jury and concisely the grounds upon which the Judge differs from the verdict. In the present case we find that this was done. We express no opinion as to what would have been our view had there been before us only the letter of reference and no other records or materials to show that the reference was made for the ends of justice. The second point pressed before us was that the jury was not properly constituted and, therefore, the trial was void ab initio and illegal. Mr. Sayem contends that in this case two lotteries were held to empanel the jury contrary to the provisions of section 276 of the Code of Criminal Procedure. He says that it is clear from the record that the learned judge ascertained first of all means of a lottery as to how many of the 12 common Jurors summoned were present by calling aloud the names of all the jurors one by one in open Court. Thereafter the' learned Judge chose by means of a second lottery 5 Jurors out of 7 jurors who were found present. He, therefore, says that the accused has been deprived of the benefit of a fair and impartial trial. " In the course of argument, we were informed that it is the practice in District Courts to ascertain beforehand how many of the persons summoned to serve as jurors have attended and thus determine the "deficiency" to be supplied. If that is the case, in my judgment it is a practice which is not authorised by law and should be discontinued. No doubt, persons summoned as jurors who do not attend are liable to fine. But the stage at which it should be ascertained whether they have attended or not is not reached until their names are called out for the purpose of empanelling a jury. The procedure to be followed in nominating a jury is laid down in Chapter 1, rule 54, of the General Circular Orders. If carefully observed, step by step, no difficulty will occur. It, is to be presumed that the total number summoned is that required by section 326, that is to say, at least ten, for a jury of five, and in the aggregate there may be more. This will depend upon the number required for the Sessions and stated in the letter to the District Magistrate. On the names being drawn from the box one by one, each after another, and called aloud as each is drawn, it will become apparent who has not attended, and it is only when all the names have been so drawn and number by persons insufficient for the purpose of constituting a jury have answered to their names, that the deficiency will become manifest. The deficiency will be the number by which the number of persons answering their names and empanelled falls short of the number of persons of which the jury should consist. It is then and not until then that, in my opinion, the proviso begins to operate, and on that point being reached, the court has to exercise a discretion whether to allow persons to be chosen from among the by‑standers in sufficient number to supply the deficiency, or whether to adjourn the case for a fresh Jury to be summoned." " Of the 12 Common Jurors summoned in this case only 7 such jurors are found present by calling aloud the name of all jurors one by one by lot in open Court. Of the 7 present jurors, 5 jurors as per overleat are chosen by lot as no objection raised from either side and of the remaining 2 jurors one is lent to the Sessions judge as there was one juror short there and the other is dicharged on the ground of his illness." In order to ascertain whether in this case a correct procedure of empanelling the jury has been adopted, we have to construe the meaning of the above and see for ourselves as to what exactly it conveys. In our opinion, it is capable of several interpretations. It may be that of 12 persons who were summoned as jurors for this particular trial, for were found present when their names were called out in open Court by drawing their respective card in which case it cannot but be deemed to be the first lottery. It may also be that out of the 12 jurors summoned, it was ascertained first as to how many persons were present in which case it may be urged that the judge is riot required by law before he draws lots to ascertain how many of the persons summoned to serve as jurors were present. Both these interpretations, no doubt, are subject to objections but we also find from the order‑sheet that of the 7 jurors who were present 5 jurors were chosen by lot as no objection was raised from either side and of the remaining two jurors one was lent to the Sessions judge and the other was discharged on the ground of illness. We are to consider whether in these circumstances a fair and impartial trial has been afforded to the accused. A third view may be taken that the 2 jurors who were left out after the jurors had been selected were the two most suitable and proper persons to sit as jurors and that this second lottery has, therefore, deprived the accused of a fair and impartial trial. In the above Full Bench case of Kedar Nath Mahato v. The King Emperor, reported in 32 C, W. N. 221,‑ we find at page 229 of the report that in appeal no. 302, the charges were laid under sections 304, 147 and 304 read with section 149 of the Indian Penal Code. Twelve persons had been summoned to serve on the jury, seven of these attended, of whom one was excused. Out of the remaining six, five jurors were chosen by lot. We do not know the details of the procedure adopted in that case when the jury was empanelled. Carefully looking into the decision of the Full Bench case, we find that the point of reference was whether the jury in the case of Appeal No. 302 was empanelled according to law. The answer of the Full Bench was in the affirmative. The learned Acting Deputy Legal Remembrancer argues that if the order of the present case is capable of several interpretations then the Criminal Appeal No. 302 referred to the Full Bench is also not free from interpretations. He strenuously argues that the question relating to the validity of empanelling the jury in the present case is on the same footing and on all fours with the facts more or less of the, case in Appeal No. 302 so far as it relates to the empanelling of the jury. He says that in the present case also 12 persons had been summoned, of these 7 attended and out of them 5 were chosen by lot. Of the remaining two, one was excused and the other lent to the Sessions Judge. He, therefore contends that the Full Bench decision supports him. He also claims that no prejudice has been caused to the accused by such ‑a procedure as the jury was chosen without objection. The accused, therefore, has not been deprived of a fair and impartial trial. In this connection we may refer to the case of ` Fukha Bibi v. The Emperor', reported in 40 C. W. N. 1411 for the, pro position that no prejudice has been caused to the accused by the procedure adopted by the learned Assistant Sessions Judge. In this case, it appears, the jurors were selected by lot and after the, jury were empanelled the trial had commenced. Thereafter one of the jurors selected intimated to the Court that he had heard something about the case and he was discharged by the learned judge. Another Juror was then selected by lot to fill the vacancy and no objection was raised. It was held that in such a case no injustice of any kind had been done to the accused. A consideration of these decisions leads us to the conclusion that in the present case the jury was validly constituted and that the accused had a fair and impartial trial. The third contention raised by Mr. Sayem is that the precept for summoning jurors was issued by the Assistant Sessions judge who had no authority to exercise the powers given by section 326 Criminal Procedure Code and the trial is thus vitiated. It is no doubt true that the duty of issuing a precept imposed on the Sessions judge by section 326 of the Code of Criminal Procedure cannot legally be performed by an Assistant Sessions Judge but the power of sending a precept summoning a witness for a particular trial can be exercised by an Assistant Sessions judge under the provisions of section 327 of the Criminal Procedure' Code. An examination of the record shows that the accused was committed to the Court of Sessions on 22nd May, 1.950 by Mr.

142. N. Ahmed, Magistrate, 1st class, Jessore and the date for the trial was fixed on 28th August, 1950 and precept was issued by the Assistant Sessions judge for summoning the jurors on 8th July, 1950 after the case was transferred to him by the Sessions judge on 9th June, 1950. We may refer in this connection to the case of `Bakhori Gobe v. Haiz Atdul Halim' reported in A. I. R. (1941) Pat.

362. At page 364 of the report Rowland, J. observed :‑ "It is said that the precept for summoning jurors which was issued on the 29th January 1939 by an Assistant Sessions Judge to whom the Sessions Judge had transferred the case was ultra vires. For this contention reference is made to the opening words of section 326, Criminal Procedure Code under which the Sessions Judge is ordinarily to send the usual letter to the District Magistrate. It is said that the Assistant Sessions judge has no authority to exercise the powers given by the section to the Sessions Judge. No reported case could be produced in support of this contention, but there is a refer ence in the textbooks to an unreported decision, Ratanlal 148 for the proposition that the duty imposed on the Sessions Judge by section 326 cannot be discharged by a Subordinate judge in temporary charge of the current routine duties of the office of the District 'and Sessions Judge. It is argued that the Assistant Sessions judge had no power to act under section

326. The decision relied on by Ratanlal could not be, produced, but on the face of the citation in the text‑books, it would appear that perhaps the Subordinate judge whose action was called in question was an officer not having any sessions power at all otherwise he would perhaps have been referred to as assistant Sessions Judge. Therefore the dictum seems to be quite irrelevant to the contention advanced before me. But whether or no an Assistant Sessions judge has the power given to the Sessions judge by section 326 there can be no doubt whatever that he has the powers conferred on the Court of Sessions under section

327. If a set of jurors or assessors have been summoned by the Sessions judge for a whole session, it is still open to the Presiding Officer of any of the Courts holding Sessions to summon another set of jurors fur a particular trial if it is not convenient or practicable for the trial to be held by jurors of the sets summoned by the Sessions judge under section

326. In practice it is not usual for the Sessions judge to act under section 326 summoning a single set of jurors to hear all the cases that are set down for hearing in a particular session but rather to summon one set of jurors for each trial that has to be held, and this it has been held is in accordance with and is authorised by section 327." So the trial cannot be challenged on the ground that the Assistant Sessions judge is not empowered to summon the jurors. It has also been pointed out in this connection that the precept issued to the District Magistrate by the Assistant Sessions Judge bears the following :‑ "Precept to District Magistrate to summon Jurors and Asses sors. No. XXXII, Schedule V, Act V, Section 326 of the Code of Criminal Procedure." It is, therefore, contended that the Assistant Sessions judge not being empowered to issue precept under section 326 of the Code the contention of the jury is illegal. This contention has no substance as we find that the form which has been issued in this case for summoning jurors is one of the stereotyped printed forms which are usually utilized in Sessions trials for summoning jurors or Assessors. The con tents, however, of the precept as a whole clearly show that the trial was fixed fox August, 28th 1950, and the jurors were summoned to attend this particular trial. From the context of the precept it is abundantly clear that the precept was really issued under the provisions of section 327 of the Code and not under section 326 as the heading of the precept indicates. However, he learned Assistant Sessions judge should have taken care to see that the printed section was deleted before the precept was issued. Now, as to the facts of the ease whether it is a case of dacoity or robbery, Mr. Salahuddin contends that it is a case of dacoity pure and simple and not that of robbery. He relies on the evidence of three eye‑witnesses who are P. W. 1 Bazlur Rahman, P. W. 2 Bazlur. Bibi and P. W. 3 Amir Ali. He says that they are the people who actually saw the occurrence being the inmates of the house and there is no reason or room to doubt or disbelieve their evidence. According to the evidence of Bazlur Rahman, he says that this witness saw one dacoit in the court yard, another in his verandah, two inside his West Bhiti shed and four dacoits going out of the house of his brother Amir Ali. So, according to this witness, the number of dacoits comes upto eight: We find from the evidence that the decoities were committed in the West Bhiti and North Bhiti sheds of the house. The recorded evidence does not show the distance between the two sheds. The sketch map or plan of the‑place of occurrence is unsatisfactory and has been of no help to us in order to appreciate the evidence of the witnesses including that of the Investigating Office, P. W. 8 Bamandas Biswas. It is somewhat surprising that even the learned Assistant Sessions judge did not care to find out from the Investigating Officer the distance and position of the sheds occupied by the witnesses and other necessary particulars with reference to the map. P. W. 1 .Bazlur Rahman in his examination‑in .chief, states as follows : ‑‑ "Then on hearing the cries of my daughters, brother and his wife, I could not stay there, so, I entered my house from the back with a hurricane lantern in his hand ; and found a man standing in my courtyard with his face wrapped up with a cloth ; and another man standing in the verandah of my shed but the latter removed away when I entered my shed. Then entering into my shed, I found two dacoits and my sister and my daughters inside, my house." Here he speaks of 4 dacoits only. Later on in his evidence he stated that, "I found that 4 dacoits then came out from the shed of my brothers. Then the 2 dacoits of my shed went out after closing down the door of my' shed from 'out side " But, we find that he was tied down already by the dacoits who went out after closing the door and so it is doubtful if he could at all see the 4 dacoits whom he says came out from .the shed of his brother. Besides, he states in his cross‑examination as follows :‑ "I did not state in my F. I. R. that I entered into my shed with a hurricane light in my hand." "I stated in my F. I. R. that it suspected 2 of the 4 labourers of Noakhali who would work at my house. All the Noakhali labourers were at my house on the following date of occurrence and the Daroga had arrested all of them." The acceptance or not of the a evidence of identification of this witness 'n such circumstances was a matter entirely within the province or the jury and if they were prepared to accept that this witness could not have seen or identified more than four dacoits there can be no ground for criticism at all. With regard to the evidence of P. W. 2 Fuljan Bibi, she is a woman of 52 years of age and she states that she awoke from her sleep on being caught by the dacoits who afterwards tied her. She says that 10 or 12 dacoits came and 2 of them tied her. Then 4 other dacoits brought the Dhenki from the cowshed and broke the door with it. In her cross‑examination she says that at first the dacoits tied her to a post. It is argued that according to this witness, the number of dacoits cannot be less than six as four dacoits had entered the North Bhiti shed after carrying the Dhenki and breaking its door before she was taken inside the west Bhiti shed. It is somewhat astonishing that this fairly elderly lady who was roused Am her sleep suddenly could give a graphic descrip tion of the number of dacoits and how they were operating. If the jury chose to discountenance the veracity of her statement as, regards the number of dacoits, there is no wonder at all. With regard to the evidence of P. W. 3 Amir Ali , a is contended that according to this witness also the number of dacoits 'there not less than six. In his examination‑in‑chief this witness states: "I was sleeping with my wife in my North Bhiti shed after closing the door .... Then suddenly four persons entered into my shed by breaking the door. I could not see them with what the door was broken. Then one of the four dacoits gave a blow over my palm with a roller anal then tied my hands with a cloth of ray house." Then. again he says :‑ "I thought the number of dacoits would be 8 or 10 or 12 but I did not see them all". This witness is specific about the four dacoits but as to the rest depends on his guess work and memory, So froth his evidence it is not free from doubt as to the exact number of dacoits who were seen by him at the time of the commission of the dacoity. We find that the various criticisms of the learned Assistant Sessions Judge with regard to the value to be attached to the evidence of the eye‑witnesses mentioned in the letter of reference are all to be found in the charge delivered by the learned Assistant Sessions judge to the jury. What we have to see is whether the verdict of the jury is one which no reasonable body of men could have honestly reached on the evidence before them. The jury arrived at the verdict after hearing all the evidence. In the state of evidence discussed above if the jury were of opinion that the accused committed robbery and not dacoity, we do not think that we can say that the verdict is one which no reasonable body of men could have reached. If the jury were prepared to accept that the evidence disclosed a case of robbery, these is no ground for interfering with the verdict. We think, therefore, that there is no reason to accept this reference or to set aside the unanimous verdict of the jury. So, for the reasons stated above, this reference is rejected and the unanimous verdict of the jury is upheld. The accused is convicted under section 392 of the Pakistan Penal Code and is sentenced to rigorous imprisonment for three years. Before we part with this case, we would like to draw the attention o the Assistant Sessions judge to Chapter 1, Rule 54, of the General Rules Circular Orders, Appellate side (Criminal) Vol. I of this Court relating to the empanelling of the jury which should be strictly observed.