P L D 1952 Federal Court 63 (PLP)

ABDUL RASHID, C. J.‑This is an appeal, by special leave, from a judgment of the High Court of judicature at Dacca in East Bengal, dismissing an appeal by Aminul Hoque appellant from a conviction for murder and the sentence of death imposed by the Sessions Judge of Noakhali. The principal question of law which arises and was the ground on which special leave was given is, whether the statement of Maulvi Abdul Bari, Honorary Magistrate, was transferred to the record of the Sessions Court in accordance with the provisions of section 33 of the Evidence Act, and if so, whether this statement validates the irregularities in the recording of the confession. The second question which would require determination is whether there is sufficient evidence to sustain the conviction of the appellant if the statement of. Maulvi Abdul Bari is excluded from considera tion. On Sunday, the 10th July 1949, Ali Akbar, father of the appellant, left his house in village Lakshmipur at about 2 o'clock in the afternoon to proceed to Karaiya Bazar three miles away to make some purchases. When he left his house, he gave out that he would return before sunset in order to be able to break his fast at home. He never came back to his house. In the evening, search was made .for him by his son Nur Ahmed and others. No clue to his whereabouts was obtained, although a place was discovered at a distance of about half a mile from his house, where there were marks of struggle and some blood. 'On the 11th July information was lodged with the police regarding the disappearance of Ali Akbar by his young son Nur Ahmed. On the 13th July, Ali Akbar's dead body was discovered on a sand bank at a place called Katamobarak‑ghona on the Muhari river, which is one‑quarter of a mile from a bazar known as Krishna Majumdar's bazar, and is 8 or 10 miles from the house of the deceased. It is the case for the prosecution that at the time of the discovery of the dead body, the appellant and his two cousins, namely, Badsha Mia and Kuria Mia, were found digging a grave in order to bury the dead body which was lying close by. The appellant and other two persons were surrounded by the inhabitants of the locality and were tied down. At that time, the appellant stated in the presence of the President and the Vice‑President of the Union Board that the dead body was that of his father whom he had murdered. Information was sent to the police, and a Sub -Inspector, Abdul Ghafur Biswas, soon arrived there. The First Information Report was recorded on the spot at the instance of Nur Ahmed. On the 14th July, the appellant was produced before Maulvi Abdul Bari, Honorary Magistrate, Feni, and his confession was recorded under section 164 of the Code of Criminal Procedure at about 10‑0 a.m. Aminul Hoque retracted his confession in the Court of the Com mitting Magistrate. The case for the defence was that the appellant and his two cousins were arrested at the instance of Karim Ullah in Krishna Majumdar's bazar where they were tied down and severely beaten by the public, and were subsequently taken to the Katamobarak‑ghona where the dead body was lying. The prosecution witnesses had fabricated evidence to the effect that the appellant and his cousins were present near the dead body in order to dig a grave to bury the deceased. The conviction of the appellant rests on the judicial confession made by Aminul Hoque on the 14th July, 1949, the extra‑judicial confession in the presence of the President and the Vice‑President of the Union Board and the capture of the appellant and his two cousins while they were digging a grave to bury the deed body of Ali Akbar deceased. Maulvi Abdul Bari was examined as a witness for the prosecution in the Court of the Committing Magistrate on the 8th of December, 1949. His entire evidence consists of a few lines and may be reproduced here :‑ "I am Honorary Magistrate, First Class at Feni. On 14th July, 1949, I recorded the confession of accused Aminul Huq. Exhibit 4 is the confession I recorded, the accused was given due caution and time for reflection. The confession was voluntarily made". "Cross‑examination.‑Nil." The Honorary Magistrate did not appear as a witness at the Sessions trial. His statement recorded before the Com mitting Magistrate was transferred to the record of the Sessions judge under section 33 of the Evidence Act. The order of the Sessions judge transferring the statement is as follows :‑ "Put in under section 33 I. E. Act at the instance of P, P. T. TALUKDAR. Sessions Judge, 25‑5‑1950. It was contended on behalf of the appellant that the pro visions of section 33 of the Evidence Act were not complied with in the present case and that the learned Sessions Judge was wrong in transferring the statement of Maulvi Abdul Bari , Honorary Magistrate, to his record. It was urged that under' section 33 of the Evidence Act the Sessions Judge could only transfer the statement of Maulvi Abdul Bari if it had been established that the presence of the witness could not be obtain ed without an amount of delay or expense which under the circumstances of the case the Court considered unreasonable. The order of the Sessions judge, dated the 25th May 1950, does not show that he applied his mind to the consideration of the provisions of section 33 of the Evidence Act. It was his duty to weigh the evidence showing that Maulvi Abdul Bari could not attend the Court, and it was only if he considered that there was sufficient evidence to this effect that he could transfer his previous statement to the Sessions record. Reliance was placed in this connection on the case of Chainchal Singh v. Emperor A I R (33) 1946 P C

1. It was held in this case by the Judicial Committee of the Privy Council that when evidence given by a witness in a judicial proceeding is sought to' be used under section 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving the evidence that fact must be proved strictly. In a civil case, a party can, if it' chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evi dence. This proof must be all the more stringent where the witness was not cross‑examined in Committing Magistrate's Court by reason of the accused not having been represented by counsel. The fact that the counsel for the accused consented to the evidence of the witness being read under section 33 of the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence. In the reported case, it was sought to be proved by the evidence of the process server that the witness was incapable of giving evidence. Their Lordships held that the process server was not the proper person to prove from what disease the witness was suffering. He could only say what someone else had told him. In the present case, the only evidence relating to the illness of Maulvi Bari consists of the statement of Abdul Ghafur Biswas, Sub‑Inspector of Police. He deposed that he person ally knew Maulvi Abdul Bari, Honorary Magistrate, Feni. He had been very ill for about a week and could not move about. In cross‑examination he stated that he found Abdul Bari very sick a week ago. He went to Feni, but not to the Court or the house of Abdul Bari. It appears clear, therefore, that the Sub‑Inspector of Police had no personal knowledge of the ill ness of Maulvi Abdul Bari. If he did not go to the Court or the house of Maulvi Abdul Bari his knowledge must have been derived from someone else. No medical certificate was placed on the record. We do not know the nature of the disease that Maulvi Abdul Bari was said to be suffering from on or about the 25th of May 1950. The Sessions judge did not bring his judicial mind to bear on this evidence and did not refer to it in his order consisting of ten words transferring this statement to the record of the Sessions Court. In his charge to the jury, he stated that in spite of all possible efforts the attendance of Maulvi Abdul Bari could not be secured on account of his serious illness. He was summoned to appear before the Court of Session. Two telegrams were sent and in reply two tele grams were received to the effect that he was seriously ill and could not attend the Court. These telegrams were nor produced in evidence, and the Sessions Judge was wrong in relying on these telegrams when he had not taken them into consideration in his order, dated the 25th of May 1950. The fact that Maulvi Abdul Bari was incapable of giving evidence on the 25th of May 1950 has not been established by any reliable evidence. If such evidence as has been produced in the present case were sufficient, it would mean that any reluc tant witness could take to his bed when he found that there was a likelihood of his being required to give evidence, and get excused from attendance by telling the process server that he was suffering from some serious complaint. In these cir cumstances, we are constrained to exclude Maulvi Abdul Bari's statement from consideration. The only evidence relating to the confession of the accused consists of the statement of Maulvi Abdul Bari. He deposed that Exh. P. 4 was the confession of Aminul Hoque which he had‑recorded on the 14th July. No other witness has been pro duced to prove that Exh. P. 4 embodies the statement made by the appellant. It is the case for the prosecution that no police man was present at the time when the confession was recorded. Sub‑Inspector Abdul Ghafur Biswas has stated that he knew the handwriting of Maulvi Abdul Bari, honorary Magistrate, and that the statement of the accused Aminul Hoque, dated the 15th of July 1949, was in the handwriting of Maulvi Abdul Bari, The evidence of the Sub‑Inspector merely proves the hand writing of Mr. Abdul Bari. As he was not present at the time of the recording of the confession, he could not say that Exh. P. 4 embodies the confession made by Aminul Hoque on the 14th of July. The confession Exh. P 4 does not bear the signature of Aminul Hoque though he was literate. The statement of Maulvi Abdul Bari having been excluded from consideration the irregularities in the recording of the confes sion cannot be said to be cured by section 533 of the Criminal Procedure Code. The confession is thus clearly inadmissible in evidence. The next question for consideration is whether, in the absence of the judicial confession, the remaining evidence is sufficient to sustain the conviction of the appellant. The appel lant is stated to have made an extra‑judicial confession in the presence of the President and the Vice‑President of the Union Board at the time when the appellant was captured while trying to bury the dead of his father. Soon after the alleged confession was made in the presence of Abdul Razak, Bazlur Rahman, and Jalal‑ud‑Din Ahmad, the First Information Report was recorded at the instance of Nur Ahmad. Nur Ahmad stated in the First Information Report that he came to know from Jalal‑ud‑Din Ahmad, President, Union Board and others present with him, that at the instigation of Seru Mia, clerk of village Nichinta, Badsha, Kuna, Safiulla son of Chaudhury Mia, and Badiuzzaman, of Lakshipur had cut up his father in the evening of Sunday last at the bank of the khal to the east of the house of his sister s husband Safiulla in village Lakshipur and had thrown the dead body of his father in the khal. This report 1s a very detailed one, but it does not state that Aminul Hoque had made a confession in the presence of the witnesses named above. On the other hand, Jalal‑ud Din Ahmad, President of the Union Board, did not inform Nur Ahmad that Aminul Hoque was one of the persons who was concerned in the murder of Ali Akbar. Had a confession been made by the appellant a few minutes before the First Infor mation Report was lodged, as was deposed to by the witnesses for the prosecution at the trial, this fact would have figured prominently in the First Information Report. In his address to the jury, the Sessions Judge made the following remarks with respect to this confession :‑ "Besides, there is non‑judicial confession of the accused to P. Ws. Razak, two Bazlur Rahman and President Jalal. You need not place much reliance on this non‑judicial confes sion. If you are satisfied as to the voluntary character and the truth of the judicial confession you are entitled to con vict the accused persons on the statement alone, but it is not wise and prudent to base conviction on a grave charge under section 302, P. P. C., merely on the basis of an uncorro borated and retracted confession of the accused persons." Safiulla, brother‑in‑law of Aminul Hoque appellant, was arrested as he had been specifically mentioned as one of the accused persons in the First Information Report. He was in the custody of the police from the 14th of July to the 22nd of August 1949. On that day he was discharged at the instance of the police. The absence of any mention of the extra‑judicial confession in the First Information Report recorded on the spot where the body was recovered gives rise to a grave doubt in our minds as to whether any extra‑judicial confession was made by Aminul Hoque at all. Bazlur Rahman (P. W. 6) de posed at the trial that Aminul Hoque was questioned by the Vice‑President of the Union Board and he stated in reply that he had killed his father. The Vice‑President of the Union Board was, however, not examined as a witness. Jalal‑ud‑Din (P. W. 7) was the President of the Union Board. He states that on inquiry accused Aminul Hoque confessed that it was his father's dead body and that he had killed him. In cross- examination it was elicited from this witness that he did not tell the Committing Magistrate anything about the confession. He explained that he had not done so as he was not asked about it. He did not remember if he even told the police about the confession. It was probably in view of these infirmities in the prosecution evidence in respect of the non‑judicial confes sion that the Sessions judge told the jury that they need not place reliance on this confession. It was contended by the Advocate‑General that the learn ed judges of the High Court had observed that they did not see any reason at all to reject the extra‑judicial confession wade by Aminul Hoque in the presence of villagers eight miles from his homestead. It was urged that it was not open to us to examine the evidence afresh in this respect, and that we should be guided by the finding of the High Court in respect of the extra‑judicial confession. This contention cannot be accepted. When an important part of the evidence relied upon by the High Court leas been hold to be inadmissible, it is the function of this Court to examine the remaining evidence, for itself and form its own estimate of tire value of such evidence. This was the course followed by the Judicial Commit tee of the Privy Council in the case of Chinchal Singh v Emperor A I R (33) 1946 P C

1. The evidence on the record does not establish clearly that Ali Akbar met with his death by violent means. The post- mortem report shows that the head had been severed from the rest of the body. This, however, was not due to any cut. The body was in a highly decomposed state and most of the skin and flesh, besides a whole limb, viz. the right arm, and several ribs, were missing. In the opinion of the doctor, the cause of death could not‑be discovered. In cross‑examination the doctor stated that the death might have taken place a week before the post‑mortem examination which was held on the 14th July. He added that he did not detect any injury. In view of our observations concerning the evidence relat ing to the extra‑judicial confession, we are not disposed to place any reliance upon the evidence; given by the same witnesses, as to the conduct of the appellant and his confes sions, in relation to the corpse. In any case, when this evidence is disassociated from the alleged confessions it becomes, in relation to the charge of murder, a mere scintilla, on which no conviction can be based. We cannot conclude this judgment without pointing out that the provisions of section 342 of the Cr. P. C. were not complied with in examining the accused. The statement of Aminul Hoque recorded at the trial may be reproduced in extension :‑ "Q. You have heard the examination and the cross‑exami nation of the prosecution witness. What is your defence ? A. I am innocent. Q. Will you adduce any evidence in defence ? A. No." Section 342 enjoins that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the Judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting section 342 of the Cr. P. C. is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. It is true that section 342 was not intended for the purposes of cross examining the accused or for filling up gaps in the case for the prosecution. But it is no less serious an error to go to the opposite extreme and," by excess of restraint, to defeat the primary object of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case :against him. Reference', may be made in this connection to the decision of the Judicial Committee of the Privy Council in the case of Dwarkanath Varma v. King Emperor 37 C W N 519 (P C). In the present case, the attention of the accused was never invited to the extra‑judicial confession which has been relied upon by the learned judges of the High Court as a vital piece of evidence. The point was also overlooked that this confession did not find a place in the First Information Report, which was lodged a few minutes after the alleged confession was made, and was taken down at the place where the confession was made in the presence of the President of the Union Board. In conclusion, it was contended on behalf of the Crown, that Aminul Hoque should be retried so that the prosecution may be able to produce Maulvi Abdul Bari as a witness at the trial. Ali Akbar met with his death as long ago as the 10th of July 1949. The appellant had to undergo the worry and anxiety of a prolonged trial for a period of over two years. It would be highly unfair to him if he is allowed to be retired in order to enable the prosecution to fill the gaps in the prosecut ion case. We are not, therefore, prepared to grant the prayer made on behalf of the Crown at this stage. Looking at the evidence as a whole, we are of the opinion that the guilt of the appellant has not been established beyond all reasonable doubt. We, therefore, allow the appeal and acquit Aminul Hoque appellant. Some of the observations made by us have a bearing on the cases of Badsha Mia and Kuna Mia. A copy of this judgment should therefore be forwarded to the Provincial Government for such action as they may be advised to take in respect of these two convicts. A. H. Appeal allowed.