P L D 1971 Dacca 254 (PLP)

The two of the assessors opined that the accused petitioners were not guilty. The learned Assistant Sessions Judge by his order dated 12‑9‑67 convicted and sentenced the accused peti tioners as stated above and acquitted the accused Monfar Ali, Abdul Mannan Abdul Jahur and Altab Ali of the charges under section 324 of the Pakistan Penal Code. The rest of the accused persons, namely Fazar Ali, Abdul Mannaf Abdul Ahad Mozaffar Ali, Khalilullah, Asaddar Ali, Harendra Kumar Dum and Suruj Ali were all acquitted of the charge under section 148 of the Pakistan Penal Cude. Thereafter, accused petitioners having felt aggrieved by the order of conviction and sentence preferred an appeal to the Court of learned Sessions Judge, Sylhet, and the learned Additional Sessions Judge, Second Court, Sylhet who heard the said appeal upheld the order of conviction and sentence passed by the learned Assistant Sessions Judge. The petitioners thereafter moved this Court and obtained the above Rule pending the hearing of the Rule the petitioners were released on bail. Mr. Habibur Rahman Khan, the learned Advocate appear ing on behalf of the accused petitioners submits that both the Courts below committed error in law and acted with material irregularity in the exercise of their jurisdiction in not considering, the legal effect arising out of the fact that in the instant case there was no F. I. R lodged with the Police Station and that there was inordinate delay of about 8 days in filing the petition of complaint before the learned Magistrate and in the said petition also there was no allegations against the Police whatso ever. While developing the said point Mr. Khan referred to the Judgment of the Appellate Court below where the learned Additional Sessions Judge pointed out that the filing of the petition of complaint was very much delayed and that the explanation for such delay was that there was a talk of com promise. Mr. Khan, has rightly pointed out also that the learned Additional Sessions Judge did not come to any positive finding as to whether he accepted the said explanation as to delay in filing the petition of complaint or not. Mr. Khan has also made the said grievance against the trial Court on the said point. Moreover, he has strenuously argued that both the Courts below totally failed to consider the vital aspect of the case, although it is in evidence, that the Police Station is not far off from the alleged place of occurrence and no F. I. R. was lodged by the complainant petitioners with regard to the alleged occurrence. In find substance in the said contention of Mr. Khan and I really fail to understand as to why there was no information lodged with the Police and why there has been the epithet of compromise made out by the complainant party in explaining the delay to file the petition of complaint. The explanation for the delay is insufficient and not at all acceptable. Moreover, as I have already observed there is no explanation as to why no information was lodged with the Police Station. These facts alone create doubt as to the veracity of the prosecution case. The next point urged by Mr. Khan is that both the Courts below acted illegally and with material irregularity in the exercise of their jurisdiction in failing to consider the case with regard to the actual place of occurrence as introduced by the prosecution. It has been rightly pointed out by Mr. Khan that if the story of altercation and quarrel in the local market is to be accepted theta it is very difficult to reconcile and accept the case of subsequent occurrence near the house of the accused Khalilullah who has been acquitted particularly when there is no evidence that the men of the complainant party were really returning home from the market by the side of the house of Kalilullah. Moreover, it is very significant to note that if men of the complainant party were really passing by the side of the house of Kalilullah and at that time they were attacked by the accused persons being armed with deadly weapons there is no reason why the accused persons were also injured. Both the Courts below found that some accused persons were also injured and they were also examined by the doctor. On this point Mr. Khan, the learned Advocate, has argued with reference to the evidence of P. W. 10 doctor Abdul Mutalib who stated in cross‑examination that he examined 5 accused persons at 8 p. m. on the alleged date of occurrence. So, it is apparently clear that had the occurrence taken place near the house of accused Kalilullah as alleged by the prosecution there was hardly any scope for the accused persons to receive injuries. Mr. Khan has rightly pointed out that both the Courts below have totally failed to consider the affect of the two different stories with regard to place of occurrence as sought to be made out by the prosecution. The next point urged by Mr. Khan is that both the Courts below committed error in law and acted with material irregularity in failing to draw adverse inference against the prosecution from the fact that only 5 out of 19 witnesses mentioned in the petition of complaint have been examined by the prosecution and on the other hand a different set of witnesses was examined by the prosecution and that Kasem Talukdher, Sariat and Ishaque mentioned on solemn affirmation have not also been examined by the prosecution. Mr. Khan has rightly pointed out that in this case P. Ws. 9, 10, 11, 12 and 23 are formal witnesses and P.Ws. 1 to 8, 13, 14, 15 and 22 are very close relations of the com plainant party and moreover P. Ws. 13, 18, 19 and 21 were not mentioned in the petition of complainant. The learned Advocate for the petitioners has made genuine grievance that both the Courts below have failed to draw adverse inference in accordance with law against the prosecution for with holding the material witnesses in the facts and circumstances stated above. In support of his contention Mr. Khan, has referred me to the decision in the case of Muhammad Ashraf v. The State (P L D 1968 Lah. 694). In the said case it was held that withholding of an important witness who is alleged to have seen the incident goes very much against the prosecution. It is well settled principle of law that the Court should draw adverse inference against the prosecution under section 114(g) of the Evidence Act for withholding material witnesses. On this point if any decision is required I may also refer to the case of Fazlul Haq v. The State (P L D 1959 Dacca 931). In the said C case Mr. Justice Hamoodur Rahman, as his Lordship then was, observed:‑ "It is no doubt true that the prosecution is not bound to examine each and every witness cited in the indictment of the charge‑sheet. But nevertheless, it takes the risk that if any one of these witnesses is shown to be material witness, then the Court may, having regard to the facts and circumstances of the case, draw a presumption that if such a material witness had been examined, he would not have supported the prosecution case." In the instant case before me, as I have already observed, the above material witnesses mentioned in the petition of complaint and on solemn affirmation have not been examined and the explanation for non‑examination of the said material witnesses does not appeal to the conscience. No F. I. R. was lodged with the Police Station in this case sand moreover 8 days after the alleged date of occurrence the petition of complaint was filed before the learned Magistrate wherein some material witnesses were mentioned but at the trial the said material witnesses were not examined. The explanation given is omnibus that they were gained over, without giving positive evidence to that effect. So Mr. Khan has rightly contended that both the Courts below were wrong in not drawing an adverse inference against the prosecution for non‑examination of material witnesses in the case. The next point which has been strenuously urged by Mr. Khan is that both the Courts below have not arrived at any finding with regard to ingredients of an offence punishable under section 148 of the Pakistan Penal Code, particularly, as to common object and as to whether the accused petitioners were armed with deadly weapons. While developing the said point Mr. Khan, submits that there has been absolutely no mention about the common object of the petitioners in forming unlawful assembly in the petition of complaint and also in the evidence on record and the Courts below did not arrive at any finding as to whether the accused petitioners formed an unlawful assembly with any object as provided under section 141 of the Pakistan Penal Code. The learned Assistant Sessions Judge while considering the case under section 148 of the Pakistan Penal Code finds as follows:‑ "All the sixteen accused persons were also charged under section 148, P. P. C. This charge has been proved against the accused Idris Ali, Habibulla Manfar Ali, Abdul Mannan, Jahur Ali, Ajhar Ali, Altab Ali and Mobaswar Ali and not against the rest of the accused persons. I find the above eight accused persons guilty of the offence under section 148, P. P. C. and find the rest of the accused viz. Fazar Ali, Abdul Mannaf, Abdul Ahad, Muzaffar Ali, Khalilullah Asaddar Ali, Norendra Kor, Dham and Suraj Ali not guilty of this charge." The learned Additional Sessions Judge, on appeal, has not at all considered the prosecution case under section 148 of the Pakistan Penal Code. It is very strange that the appellate Court below upheld the order of conviction and sentence passed by the learned Assistant Sessions Judge without considering at all the case under section 148 of the Pakistan Penal Code with reference to the ingredients of an offence under the said section and the material evidence on record with regard to the same. Mr. Khan, the learned Advocate, has referred me to the certain decisions on this point. The first decision referred to is the case of Abdul Hamid Molla and others v. The State (P L D 1959 Dacca 139). While delivering the judgment in the said Division Bench case Mr. Justice Chakraborti sitting with Mr. Justice Hamoodur Rahman as his Lordship then was, held:‑ "But there is one defect in the judgment of the Court below under section 148, P. P. C. it is the duty of the Court to find whether the accused individually carried any dangerous weapon within the meaning of that section. In the absence of such a finding the conviction under section 148, P. P. C. cannot be maintained." In the instant case before me it is to be found that both the Courts below did not come to any finding as to whether the accused persons individually carried any dangerous weapon at all so as 1 to bring them within the mischief of the said section 148 of the Pakistan Penal Code. In the said decision their Lordships were also pleased to hold to the following effect:‑ "It is true that the learned Judge in one place of his judg ment has found that the petitioners took away fish from the possession of the complainant party and there is hardly any difficulty to see that the accused party formed an unlawful assembly carrying dangerous weapons with them with the common object of forcibly ousting the complainant from the land and taking away fish etc. But this finding, in our opinion, is not enough. He should have found that each of the individual accused carried a dangerous weapon in his hand. So the learned Magistrate was not right in convicting the petitioners under section 148, P. P. C. . ." In the present case before me surprisingly both the Courts below have not arrived at any finding with regard to the said important ingredients of the offence publishable under section 148 of the Pakistan Penal Code. Neither the Courts below have arrived at any finding with regard to common object nor they have come to any decision as to whether the accused persons were armed at all with any deadly weapon or not. The last point urged by Mr. Khan is that the Judgment of the appellate Court below is not in accordance with law inas much as the said final Court of fact did not dispose of the matter in the manner provided under section 424 of the Code of Criminal Procedure. The Judgment of the final Court of appeal on facts should contain such indication that the Court applied its mind to the evidence to enable the Court of revision to judge whether there have been proper appreciation of evidence. The said principle of law has been very clearly laid down in the decision in the case of Kalu Bepari v. The State (P L D 1958 Dacca 549). While delivering the judgment in the said Division Bench case Mr. Justice Hamoodur Rahman as his Lordship then was observed:‑ "On the other hand, the current of later decisions seems to us to clearly indicate that a final Court of Appeal on facts should at least, give some indication in its judgment as to the application of its mind to the evidence from which at least the Court of revision would be in a position to judge whether there had or had not been a proper appreciation of the evidence and all the points falling to be decided In that case by the final Court of Appeal on facts. A mere statement of the conclusion alone without the reasoning in support of that conclusion is fair neither to the accused, the appellant, nor to this Court, for thereby, the accused is deprived of the opportunity of pointing out to this Court that the method of treatment of his case by the Court below was improper and this Court, is also not in a position to say either one way or the other as to whether the Judge did or did not consider all the relevant points to be considered in the case." Considering the instant case in the light of said proposition of law as laid down by their Lordships in very clear terms the judgment before me is not proper one in law. It would be found from the judgment of the learned Additional Sessions Judge that he has not considered the vital portion of the evidence of the prosecution witnesses which are really in favour of the defence and on the other hand he has also misread the evidence of several witnesses. He did not mention the points for determination in his judgment. Here and there in the judgment he has referred to the evidence of some witnesses without giving any reasonings in arriving at the conclusion. As an instance, I may quote a portion from his judgment which runs as follows:‑ "It also appears that some of the accused were also injured at about the time of the occurrence. Such injuries are quite possible. These might have been inflicted on them by the complainant party who were attacked in self‑defence. There is no evidence to show that there was a mutual fight or that the complainant party were the aggressors. There was no counter case by the accused party. The petition of complaint was very much delayed. The explanation is that there was talk of compromise. The evidence of the P. W. 20 is that there was such talk of compromise. Some of the witnesses were not examined." The above observation of the learned Additional Sessions Judge would show in what slipshod manner he has dealt with the case. In fact he has made out a third case for the prosecution that whatever injuries were found on the persons of the accused might have been inflicted on them by the complainant party in self‑defence although no such case has been made out by the prosecution. Unfortunately he has misread the evidence also as I have already observed above. The petition of complaint itself and the evidence of P. W. 1 show that there was mutual fight in the local market. But the learned Judge says that there is no evidence to show that there was mutual fight or that the men of complainant party were aggressors. Moreover, the learned Additional Sessions Judge finds in a very peculiar manner to the following effect:‑ "The defence suggested that there was a marpit at the bazar but none at the alleged place of occurrence. So, the occurrence is admitted. Now we are to see if the place of occurrence and the manner of occurrence alleged by the prosecution is true and if so, how assaulted whom and how." I fail to understand how the learned Judge could find that the occurrence is admitted. Curiously enough the learned Additional Sessions Judge has although in one place of his judgment found that the evidence of the complainant Rustum Ali is that there was a quarrel between Rustum Ali and Chand Mia at the bazar. But he did not apply his judicial mind to the same and the other material evidence on record which if considered would have shown that there was a mutual fight in the local bazar. Unfor tunately the learned Additional Sessions Judge has not discussed and considered the material evidence as a whole and in proper perspective with reference to the ingredients of offence under which the accused person were convicted but he also upheld the order of conviction. Before parting with this judgment I am constrained to mention that times without number this Court has deprecated such sort of judgment of the appellate Court below which is the final Court of fact. I hope the learned Additional Sessions Judge will take note of this in future. From what I have stated above it is clear that there is force in all the points urged by the learned Advocate. for the petitioners and I am of opinion that the prosecution has miserably failed to, prove their case beyond reasonable doubt by adducing good evi dence and as such the order of conviction and sentence as passed against the petitioners and upheld by the learned Additional Sessions Judge can not be maintained. In the result this rule is made absolute and the orders of the Courts below are set aside and accordingly conviction and sentence passed against the petitioners are set aside and they are acquitted of the charges framed against them and are discharged of their bail bonds. Let a copy of this judgment be sent to the learned Additional Sessions Judge where he is now stationed. Rule made absolute.