P L D 1964 Dacca 420 (PLP)

BAQUER, J.‑The thirteen appellants before us have been convicted and sentenced under various sections of the Penal Code.

2. Appellant No. 1 has been convicted under section 302/109 and under section 147 of the Pakistan Penal Code and sentenced to transportation for life and rigorous imprisonment for six months respectively‑the sentences to run concurrently. Appellants Nos. 2 to 5 have been convicted under section 302/34 and under section 148 of the Pakistan Penal Code and sentenced to transportation for life each and rigorous impri sonment for one year each respectively‑the sentences to run concurrently. Appellants Nos. 6 to 8 have been convicted under section 148 of the Pakistan Penal Code and sentenced to rigorous imprison ment for one year each. Appellants Nos. 9, 12 and 13 have been convicted under section 147 of the Pakistan Penal Code, and sentenced to rigorous imprisonment for six months each. Appellants Nos. 10 and 11 have been convicted under section 148 and under section 324 of the Pakistan Penal Code and sentenced to rigorous imprisonment for one year each and rigorous imprisonment for six months each respectively‑the sentences to run concurrently.

3. The appellants were all charged under section 148 of the Pakistan Penal Code on the allegation that they on or about 4th Chaitra, 1367 B. S., corresponding to 18‑3‑61, at Nurpur under Daudkandi Police Station in the District of Comilla, were members of an unlawful assembly and in prosecution of the common object of such assembly, namely, in assaulting Adam Ali and his family members, committed the offence of rioting with deadly weapons, appellant Seraj Mir was charged under section 302/109 of the Pakistan Penal Code on the allegation that he had abetted the commission of an offence under section 302/34 of the Pakistan Penal Code by appellants Nurul Islam Mir, Chandu Mir and others who intentionally caused the death of Adam Ali in furtherance of common intention of all of them and which offence was committed in consequence of the abetment of appellant Seraj Mir. Appellants Nurul Islam, Chandu, Montajuddin, Abdu Mir, Lalu Afijuddin, Ahmad Mir and Rajjab Ali were charged under section 302/34 of the Pakistan Penal Code on the allegation that on the aforesaid date and place they committed murder by intentionally causing the death of Adam Ali in furtherance of common intention of all of them. Belayet Ali and Abdul Kadir were charged under section 324 of the Pakistan Penal Code on the allegation that they, on the said date and place, voluntarily caused hurts to Ramijuddin and Anwara Khatun with tekatia and dao respectively.

4. The prosecution case is that deceased Adam Ali and his brothers, Ramijuddin and Alfajuddin, had developed some trouble with Lalu Mir, Taleb Ali Mir and Murshed Mir and had a criminal case against them. For the last 4 or 5 years the deceased Adam All and his brothers and others west para of Nurpur used to offer their Eid prayers at the house of appellant Seraj Mir and the men of east para of Nurpur used to say their Eid prayers in the east para. As a result of the aforesaid criminal case, deceased Adam Ali and his brothers said their Tarabi prayers in the east para and Adam Ali also settled that they would offer their Eid prayers also in the east para at the Mosque of one Fazar Ali.

5. On the 18th of March 1961, the date on which the Eid prayer was held, the appellants, in the morning, at about 8 a.m. formed an unlawful assembly with the common object of assaulting Adam Ali and his family members and visited the house of Adam Ali. They had an altercation with Adam Ali and his brother Ramijuddin over the question as to why Adam Ali and his brothers being men of west para would offer their prayers in the east para and at this time appellant Seraj Mir passed orders to kill Adam Ali, whereupon appellant Nurul Islam struck on the chest of Adam Ali with a kata while Adam Ali was standing inside his but just near the door. Next appellants Rajab Ali and Lalu dragged out Adam Ali to the courtyard. Appellant Chandu Mir struck on the back of Adam Ali with a kata. Ramijuddin, a uterine brother of Adam Ali, raised a cry and tried to catch Adam Ali. Anwara Khatun, wife of Adam Ali and Alfajuddin, brother of Adam Ali, came to the spot and they wanted to catch Adam All but the appellants had assaulted them also. One Jabbar Ali and Rahman also tried to save Adam Ali; but they were injured at the hands of the appellants. Appellant Abu Mir struck on the waist of Adam Ali with a kata; Ahmed Mir struck dao blow on Adam Ali; Montajuddin, Afijuddin and Lalu struck Adam Ali with tekatia and Rajjab Ali struck lathi blows on Adam Ali. Adam Ali expired on the court‑yard just in front of his hut. Appellant Belayet Ali struck on the right thigh of Ramij uddin with a tekatia and appellant Mafijuddin struck on the chest of Anwara by a bamboo Jathi and appellant Abdul Kadir struck on the hand of Anwara with a dao. At the time of occurrence, the appellants also removed the fencing and the door of the but of Adam Ali and damaged earthern pots and utensils of the but of Adam Ali. The appellants also threw brick bats on the but of Ramijuddin and Alfajuddin. After the occurrence the appellants went away. Ramijuddin, Alfajuddin and Jabbar went to the thana with the dead body of Adam Ali by a boat and lodged the F. I. R. at 2 p.m. the same day, the thana being five miles off from the place of occurrence. The O. C., Daudkandi, P. W. 12 held inquest on the dead body and sent the same to Comilla morgue and he also sent injured Ramijuddin. Alfajuddin, Jabbar Ali and Abdur Rahman to Comilla Sadar Hospital for examination, as the Medical Officer, Daudkandi, was then absent. He visited the locality at 5‑30 p.m. on the same day and found marks of blood in the court‑yard in front of the but of Adam Ali. He also found damage on the wooden door and fencing of the north bhiti hut. He also found marks of violence and saw broken earthen pots and utensils. He also saw injuries on the person of Anwara, wife of Adam Ali. After due investigation under the supervision of Circle Inspector, he submitted charge‑sheet against all the appellants. After preliminary enquiry by a 1st Class Magistrate, the appellants were all committed for trial to the Court of Sessions where a new charge was framed only against appellants Belayet Ali and Abdul Kadir under section 324 of the Pakistan Penal Code for voluntarily causing hurts to Ramijuddin and Anwara.

6. The defence was that one Dukhai had a piece of land towards south of the house of the complainant Ramijuddin. This land was in possession of appellant Seraj Mir and the same was also recorded in the State Acquisition khatian in the name of Seraj Mir. Seraj Mir possessed this land and also grew sweet potato and onion on it. On the morning of occurrence complainant Ramijuddin, Adam Ali, Alfajuddin, Abdur Rahman and Jabbar were forcibly up‑rooting the said potato and onion from the said land. At this time, appellant Nurul Islam raised protest whereupon the complainant‑party assaulted Nurul Islam. On the cry of Nurul Islam, appellant Chandu and others came to the said land. The complainant‑party assaulted Nurul Islam, Chandu and others and thereafter there was a mutual marpit, in course of which Adam Ali sustained injuries in that field and nobody noticed who caused injuries on Adam Ali in course of the marpit. After the occurrence the complainant‑party removed the injured Adam Ali from the place of the occurrence and kept the same in their courtyard in front of the but of Adam Ali. The complainant‑party on their own broke and damaged their huts, fencings and the door of the but of Adam Ali and also fabricated all the alamats and injuries of Anwara in order to show that the occurrence took place at the house of Adam Ali and not in the field. There was no occurrence over the Eid Prayer. The complainant lodged a false ejahar changing the motive and place of occurrence and also making serious allegations against the appellants at the instance of Kalu Mia Choudhury, Chairman of Union Council and his brother Lal Mia with whom appellant Seraj Mir had some trouble. Prosecution examined twelve P. Ws. and tendered one P. W. Jabbar Ali. The defence examined two D. Ws. [The portion not necessary for reporting is omitted]

7. There is one important aspect of the case which we cannot but consider at some length, having regard to the serious ness with which it has been urged by Mr. Nurul Amin. The point is as to whether in the circumstances of the case it was enough for the prosecution to have merely tendered Jabbar Ali, P. W. 9 which is really a branch of the argument on non- examination of material witnesses, as discussed earlier. This Jabbar Ali, as noted already, is one of the seriously injured and is a brother of Sultan Mir who has been examined as P. W.

8. Sultan Mir was not an eye‑witness and only came after the occurrence while Jabbar Ali who has figured as tendered prose cution witness No. 9, was par excellence an eye‑witness having suffered serious injuries himself. The question that naturally arises is as to how far prosecution was justified in their pick and choose of their witnesses In examining a non‑eye‑witness, P. W. 8 in preference to Jabbar Ali, an eye‑witness who was only tendered as P. W. Mr. Nurul Amin has characterised this as a face saving device and an attempt at suppression of facts unpleasant to the prosecution and there is oblique motive in only tendering Jabbar Ali. The other injured, namely, Abdur Rahman who could have given independent evidence by reason of his not being shown as the relation of the complainant‑party in any way, having been totally withheld, the mere tendering of Jabbar Ali calls for scrutiny, particularly having regard to the fact that both Abdur Rahman and Jabbar Ali were charge‑sheeted witnesses and at least, one of them, Jabbar Ali was examined in the committing Court. The question becomes all the more important by reason of the fact that at the trial there was positive evidence that Abdur Rahman was not present at the prosecution's alleged place of occurrence, namely, the house of Adam Ali, and by reason of the fact that there was no positive evidence either at the trial of the presence of Jabbar Ali at the place of occurrence.

8. The injuries on Abdur Rahman and Jabbar Ali not being sustained at Adam Ali's house as stated categorically in cross by P. W. 1 naturally the defence stand that the occurrence took place elsewhere in the field, becomes more feasible. Has the prosecution, in these circumstances, placed all the cards on the table by withholding Abdur Rahman and by only tendering Jabbar Ali for cross‑examined? Mr. Nurul Amin has argued that it was not only essential to examine them both for un folding the narrative on which the prosecution is based but also that it was imperative on the part of the prosecution to examine them having regard to the defence stand taken at the earliest that the occurrence took place in the field, where Abdur Rahman and Jabbar Ali also were there.

9. In this connection it is to be noted also that as many as five persons on the accused side, namely, Nurul Islam, Chandu, Ambor Ali, Abdur Rub Mir and Noab Ali Mir were also injured fn course of the struggle. The doctor D. W. 1 Dr. Imaduddin, who examined them on the very date of occurrence, namely, 18‑3‑

61. His evidence discloses that the marks of some of the injuries would last for three or four months to one year. The learned Judge brushed away this feature of the injuries upon the accused by simply observing :‑ "I am of clear opinion that even if some persons on the side of the accused got some mild injuries while they were assaulting Adam Ali, and his family members and were killing Adam Ali, that will by no means that the occurrence took place in the field or that any of the accused had any right of private defence for killing Adam Ali or for injuring Ramijuddin, Anwara and others. While admitting the mild injuries, the learned Judge easily got over by saying that, that does not necessarily mean that the occurrence was in the field and that the defence did not plead defence of person and property. Having regard to the positive suggestion of the defence as the earliest to P. W. 1 that the occurrence took place in the field over the uprooting of potatoes and onion by the complainant‑party and having regard to the fact that the injuries on the side of the accused were incised and punctured injuries ; the right of private defence of not only property but also of person was attracted. At any rate, having regard to the fact that the prosecution party disclaimed inflicting any injury on the accused party, as stated by P. W. 1 viz. "We three brothers did not assault any of the accused party. Our P. Ws. also did not assault any one of the accused party," this question of the injuries of the accused should have engaged closer attention of the learned Judge.

10. To come back to the subject‑matter of the propriety of the non‑examination of Abdur Rahman and the mere tendering of Jabbar Ali, Mr. B. N. Choudhury for the State has argued that the choice of witnesses is entirely the job of the Public Prosecutor; that it was for him to decide which witness was to be examined and which not ; that at any rate, it was not essentially necessary to examine all the witnesses for unfolding of the prosecution case ; that the evidence as produced being enough, to examine these two would be only adding to the number; and that in the present case sufficient evidence had already been produced. He, however, conceded that the Public Prosecutor's discretion to choose or omit certain witness, did not in any way fetter the Court from drawing any adverse inference arising therefrom.

11. Authorities having been cited on both sides calling for some decision on the point, we cannot withhold an examination of the position on the point of non‑examination and tendering of witnesses.

12. In Veera Koravan and others v. Emperor (A I R 1919 Mad. 906), it was held :‑

"In cases where any witness known to the prosecution is able to swear to facts very material to the case, the proper pro cedure to follow is to ask him to give evidence on oath as to the several facts known to him, which are relevant to the case, though other witnesses might have spoken to the same facts. Merely "tendering him for cross‑examination" is not a practice which should be encouraged especially in murder cases as it would be very unfair to the accused." For better understanding of the principle enunciated therein we reproduce the whole context as under :

"Before parting with this case, we think it right to observe that the practice of tendering important eye‑witnesses cited by the prosecution for cross‑examination is not a practice which should be encouraged. In this case, Muhammad Sultan, cited by the prosecution is a material witness who was present at the scene of occurrence. He is said to have been standing at the distance of a mar from the actual scene of struggle, and would prima facie be able to speak to important facts material to the case. Instead of putting him into the box and eliciting facts within his personal knowledge and observation the prosecution merely "tendered him for cross‑examination." Very discreetly, the defence counsel put no questions to him. In cases where any witness known to the prosecution is liable to swear to facts very material to the case, the proper procedure to follow is to ask him to give evidence on oath as to the several facts known to him, which are relevant to the case, though other witnesses might have spoken to the same facts. Merely "ten dering him for cross‑examination" is not a practice which should be encouraged, especially in murder cases, as it would be very unfair to the accused. If such a practice is in vogue in other districts also, we think it proper to remark that the same should be put an end to. As observed by Field, J., in Queen‑Empress v. Ram Sahai Lall (1884) 10 Cal. 1072. Now, it must be understood, and it had recently been pointed out in more than one judgment of this Court, that in con ducting a case for the prosecution, all the witnesses who are alleged or are known to have knowledge of the facts ought to be brought before the Court and examined. In the present case, it is clear from the evidence of the other prosecution witness, that Muhammad Sultan was present at the scene of offence and when the offence was being committed. If so, he should have been asked to swear to facts known to him in the ordinary way, and merely tendered for cross -examination."

13. The observation, as above, may well apply and perhaps, with greater force, in the present case. Here in this case Jabbar Ali was in the thickest of the struggle having himself been injured he was not even at a distance of "a mar from the actual scene of struggle," as in the above case but in the very struggle itself. If it was considered discreet on the part of the defence lawyer in the circumstance of that case, to refrain from cross‑examining such a tendered witness, it cannot be held in the worse circum stances of the present case that the omission to cross‑examine Jabbar Ali was indiscreet. The facts of that case reveal that apart from Muhammad Sultan, the mere tendering of whom evok ed the observation, there was direct evidence on the side of the prosecution of eye‑witnesses to the occurrence given by people who belonged to different castes and against whom nothing material had been proved as to why they should give false evidence charging the appellants with murder, whereas in our present case the eye‑witnesses are all relations far from their being of different castes, and what is more, there is evidence of enmity at least as against some of the accused against whom the complainant‑party brought a recent criminal case as per evidence of P. W.

1. The observations clearly indicate that the fact of other witnesses being produced by the prosecution is by itself no answer to mere tendering of an important witness.

14. In Girishchandra Namadas and others v. Emperor (A I R 1932 Cal. 118), it was held :‑ "The fact that certain persons are mentioned in the First Information Report as being witnesses of the occurrence complained about does in itself make it necessary for the prosecution to call any one of them. Nor does it give rise to the presumption under section 114 (g). The only witnesses whom the prosecution need call are those who know the facts and are able and willing to give truthful evidence which is relevant to the charge. The mere statement by the complainant that some one was a witness of the occurrence is not conclusive. The only persons who can decide whether certain persons mentioned as eye witnesses in the complaint are really witnesses or not are those whose duty it is to investigate the occurrence, and examine those who are alleged to be eye‑witnesses. If they come to the conclusion that they are not eye‑witnesses and cannot give any relevant evidence, it is no part of the duty of the prosecution to call them. Section 114 refers to "evidence" which can be and is not produced. If there is such "evidence", then presumption may be drawn against the prosecution who might have produced that evidence. But before the Jury can draw that presumption, they first have to decide whether there was such evidence, that is to say, they have to be satisfied that the person, who it is suggested has been kept back, in fact know the facts, and was a willing and truthful witness, and, therefore, was willing and able to give relevant evidence at the trial." The principle laid down in that case does not strictly apply to the present, the present not being a case of withholding a witness mentioned in the F. I. R. nor it being a case of non‑directing the Jury on the absence of witnesses that might lead the Jury to draw presumption mentioned in section 114(g) of the Evidence Act. The case, however, has some bearing inasmuch as Lord Williams, J., has observed therein that the Public Prosecutor's explanation that a certain witness is valueless is not binding upon the Jury as it is only when a Public Prosecutor is convinced that a certain witness is not an eye‑witness and cannot give any reliable evidence, that Public Prosecutor can desist from calling such a witness.

15. In Manzurul Haque and others v. State of Bihar (A I R 1958 Pat. 422). It was held :‑ "(1) The practice of tendering witnesses leads to considerable confusion as is to be deprecated. (2) A material witness should not be merely tendered but should be sworn and asked to give evidence by the prosecution. Tendering if at all should be confined to witnesses of secondary importance. (3) Even in a case, where the prosecution has already got sufficient evidence on a particular point and does not want to waste time by examining a witness although material, who was examined in the lower Court on the same point, but at the same time does not want to deprive the defence of the right of cross-examination, it should ask the witness at least whether his evidence in the lower Court was true, and if he gave a general answer as to the truth of his evidence in the lower Court he could be cross‑examined on that. (4) It is not the duty of the prosecution or of the Court to examine any witness merely because he was examined as a prosecution witness before the committing Magistrate if the prosecution is of opinion that the witness was not likely to speak the truth. All that the prosecution need do in such a case is to see that the witness was present in Court so as to give the Court or counsel for the defence, as the case may be, an opportunity of examining him." It was observed that the practice of tendering witnesses leads to considerable confusion and is to be deprecated. A material witness should not be merely tendered but should be sworn and asked to give evidence by the prosecution. Tendering, if at all, should be confined to witnesses of secondary importance.

16. In our present case, it will be noted that, P. W. 9 Jabbar Ali tendered at the trial was examined as P. W. 8 in the committing Court. There is nothing to show that the pro secution was of opinion that the witness was not likely to speak the truth.

17. In Adel Muhammad El Dabbah v. Attorney‑General of Palestine (AIR 1945 P C 42), it was held "There is no obligation on the prosecution, to tender witnesses, whose names were upon the information but who were not called to give evidence by the prosecution, for cross-examination by the defence. The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless, it can be shown that the prosecutor has been influenced by some oblique motive. It is consistent with the discretion of counsel for the prosecutor that it should be a general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender witnesses whose names appear at the back of indictment but are not called by the prosecution to give evidence, for cross‑examination by the defence but it remains a matter for the discretion of the prosecutor." This case has set up the test of "oblique motive" and in the facts of that case the Privy Council did not find any oblique motive, there being no suggestion even. In our present case Mr. Nurul Amin has strenuously argued that the motive in merely tendering Jabbar Ali was clearly oblique inasmuch as the very injuries on his person pointed to the occurrence being elsewhere which was likely to be fully exposed if the defence cross‑examined him after examination by the prosecution. Further that there was no doubt that Jabbar Ali himself having suffered injuries at the hands of the complainant‑party, was the most competent witness to speak about the occurrence and as such he should have been examined and not only tendered.

18. Our attention has been drawn also to the following observations of the Privy Council in Stephen Seneviratne v. The King (A I R 1936 P C 289). "It is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as 42 Cal. 422, to the effect that all available eye‑witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions ; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result and never it is more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecu tion" A distinction has been drawn between witnesses essential to the unfolding of the narrative on which the prosecution is based and witnesses that were not so essential. It was observed that in the case of non‑essential witnesses though their names were on the indictment, there would be less confusion and a fairer trial if they bad been put into the box to be questioned as to other than formal matters by the defending counsel. It cannot be denied that both Abdur Rahman and Jabbar Ali were essential witnesses for the purpose of the 'unfolding of the narrative on which the prosecution is based, though not of the prosecution story. In Malak Khan v. Emperor (AIR 1945PC16), it was held inter alga as under: "Though as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, there is no obligation compelling a counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a general whole and arrive at its conclusion accordingly taken into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses." This decision approved Adel Mohammed El Dabbah's case, Lord Portor observed: "These views have often been expressed by their Lordships and are to be found in their latest form in a judgment of the Board pronounced in May 1944, in the case of Adel Muhammad v. Attorney‑General of Palestine." Now, the latter part of the decision in Adel Muhammad's case seems to indicate that even in the matter of tendering, the Public Prosecutor has wide discretion. Adel Muhammad's case being approved, the position seems to be that even tendering is ultimately a matter of discretion of the Prosecuting Counsel. Be that as it may, in the light of the test of oblique motive as set up in Adel Muhammad's case, the total absence of Abdur Rahman and the mere tendering of Jabbar Ali, seem to raise suspicion.

20. The ultimate test set up by the latter Privy Council decision of 1946 is that whatever presumption may arise from absence of expected witness, the Court must judge the evidence as a whole and arrive at its finding taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses Malak Khan's case is not really a case of tendering but of non-examination. The earlier case, namely that of Adel Muhammad is more directly on tendering, the contention raised there being that the accused had a right to have the witnesses whose names were mentioned in the information but were not called to give evidence for the prosecution tendered by the Crown for cross by the defence. It was held that there was no obligation on the prosecution to tender such a witness unless some oblique motive was made out. The Privy Council also did not agree with the Court of Criminal Appeal that the better practice in such circumstances was to tender, nor did they approve the recommendation of the Court of Criminal Appeal that in future the practice of tendering witnesses should be generally followed in all Courts. They, however, set up the test of oblique motive as the final test leaving to the Crown Prosecutor the widest dis cretion.

21. The grievance made by Mr. Nurul Amin is not that of the prosecution not tendering certain witnesses at the close of the case of the prosecution as in Adel Muhammad's case but that of merely tendering a witness who ought lo have been examined. Considered from that aspect even this case is not strictly in point.

22. In Sadeppa Gireppa Mutgi and others v. Emperor (A I R 1942 Bom. 37), following A I R 1929 Mad. 906, it was held: "If a witness is examined by the defence without having given any evidence‑in‑chief, he is not being cross‑examined, by whatever name the process may be described. The practice of tendering for cross‑examination should only be adopted in case of witnesses of secondary importance. Where the prosecution have already got sufficient evidence on a particular point, and do not want to waste time by examining a witness who was examined in the lower Court, but at the same time do not want to deprive the accused of the right of cross‑examining such witness, they tender him for cross‑examination. But the witness ought to be asked by the prosecution, with the consent, of course of the pleader of the accused, whether his evidence in the lower Court is true. If he gives a general answer as to the truth of his evidence in the lower Court, he can be cross‑examined on that. But he must in some way be examined‑in‑chief before he can be cross- examined. However the practice of tendering a witness for cross‑examination certainly should not be employed in the case of an important eye‑witness." This case is clear on the point that the practice of tendering for cross‑examination should only be adopted in case of witnesses of secondary importance, and that the practice of tendering should not be employed in the case of an important eye‑witness. Beaumont, C. J., further seems to be of the view that in the case of a prosecution witness being tendered on the ground that there was sufficient evidence already and for the reason that the defence might not be deprived of the opportunity of cross‑examining, it was necessary for the prosecution to ask of the witness whether his evidence in the committing Court was true. In other words, according to him, the witness must in some way be examined‑in chief before he can be cross‑examined.

23. In view of the clear implication of the first part of this decision in favour of Mr. Nurul Amin, namely, that tendering should not be employed in the case of important witnesses, at is not necessary for us to dilate on the implications of the other observations of Beaumont, C. J., regarding some examination‑in‑chief of such a witness being essentially necessary prior to his cross‑examination by the defence in terms of section 138 of the Evidence Act.

24. Before we close, there is one other case which calls for our consideration a Full Bench decision of the Allahabad High Court reported in Queen‑Empress v. Durga (I L R (1894) 16 All. 84), in which it was held: "In a trial before a Court of Sessions or a High Court the Public Prosecutor conducting the case for the Crown is not bound to call as a witness for the Crown or to put into the witness‑box for the purpose of cross‑examination any of the witnesses appearing in the calendar as witnesses for the Crown whose evidence is in his opinion unnecessary. Mr. Chowdhury for the State has primarily relied on this old decision. It appears that round about the 1890, that was the prevailing view but round about the 1930's that view came to be modified, leading to the curtailment of the Public Prosecutor's discretion considerably as borne out by the Madras decision of 1929 where objection was taken to even tendering of a witness who could not, in strict sense, be taken as a close eye‑witness and even though the prosecution in that case already adduced sufficient evidence of independent eye‑witnesses. This latter attitude is also borne out by the Bombay decision which approved tendering only in the case of witnesses of secondary importance. The Privy Council decision of 1936 set up the standard of witnesses essential to the unfolding of the narrative on which the prosecution is based, which implies not only the eye‑witnesses while Beaumont, C. J., in the decision cited seemed to express approval of the Madras decision of 1929 inspite of the primary test set up by the Privy Council decision of 1936, namely, that of witnesses essential to the unfolding of the narrative on which the prosecution is based. The generally accepted principle today is that part of the views of Beaumont, C. J., as expressed in the Bombay case which has stated that there could be no tendering of an important eye‑witness.

25. Inspite of the Privy Council ruling of 1936 which does not appear to have been cited before Beaumont, C. J., the test laid by Beaumont, C. J., was that of important eye‑witness only. The 1945 Privy Council decision rather shows a swing back of the pendulum widening the discretion of the Crown Prosecutor by introducing the test of oblique motive. So long as the non -examination and non‑tendering was not hit by oblique motive, the Prosecutor was at liberty to withhold any witness as he liked. The 1946 decision which approves the principle of 1945 decision seems to give the utmost latitude to the Public Prosecutor in the matter of calling of witnesses, leaving it open to the Court to draw its own conclusion on the basis of the persuasiveness of the testimony given in the light of the criticism levelled at the absence of possible witnesses.

26. Having regard to the circumstances discussed we feel that the non‑examination of Abdur Rahman and he mere tendering of Jabbar Ali in the present case arose from oblique motive of the prosecution and further that their evidence was also essential for unfolding the narrative on which the prosecution was based. The mere tendering of Jabbar Ali was as good as not examining a person who was most competent to speak about the occurrence. We feel that the salient tests are only those of oblique motive and essentialness for unfolding the narrative on which the prosecution is based as propounded by the Privy Council. These are the tests and there should not be any other limits to the Prosecutor's discretion in the matter of examining and tendering of prosecution witnesses. What witnesses are essential and which motive is oblique, will depend upon the circumstances of each case and it is not possible to specify them. As a rule of prudence, however, a material witness should not be merely tendered but should be asked by the prosecution to give evidence. Tendering should be confined to witnesses of secondary, importance only. If the witness is important, the prosecution should call him and examine‑him‑in‑chief and should not tender him, though he can make the examination‑in‑chief as brief as circumstances permit. If the witness is unimportant, the prosecution may tender him for cross‑examination. If the prosecution withholds a witness on the ground of unreliability, some evidence of unreliability should be shown. When sufficient evidence has already been led, the tendering of a witness will not be treated as withholding of such a witness, unless it is from oblique motive.

27. In the circumstances stated, we find that the occurrence did not take place in the house of Adam Ali, as alleged by the prosecution, nor in the manner, as alleged, over the question as to where the complainant‑party was going to offer their Eid prayers. The mark of blood, violence and damage as found by the I. O. in the premises of Adam Ali are not, in our opinion, in the circumstances of the case, sure tests for fixing the place of occurrence in the but of Adam Ali. We, therefore, allow this appeal and set aside the convictions and sentences of all the appellants and acquit them of all the' charges. We direct that appellants 1 to 5 be set at liberty forthwith, if not wanted in any other connection and appellants 6 to 13 who are on bail be discharged from their bail bonds. S. Q. Appeal allowed.