P L D 1957 Dacca 591 (PLP)

RAHMAN, J.‑This appeal is by three accused persons who have all been convicted under section 457 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for three years. In addition to this, appellant No. 1 has been further convicted under section 326 and appellants Nos. 2 and 3 have been convicted under section 326 read with section 109 of the Pakistan Penal Code and sentenced to stiffer rigorous imprisonment for five years respectively on each count. The sentences, however, have been made to run concurrently. The case against these appellants was that they had at about 1‑30 a.m. of the 16th of December 1955, entered into the but of one Keyamuddin, P. W. 1, by cutting a sindh in the North‑Western corner of the plaintiff thereof. One of them, namely, the appellant Khabiruddin was armed with a dao or a sandao and the other appellants were armed with short lathis. In this hut, which is a North‑bhiti hut, the said Keyamuddin was sleeping with his wife and a minor son and there was also a hurricane lantern burning inside the hut. It is alleged that immediately after entering the but the appellant Khabiruddin dealt a blow with the dao on the upper lip of the said Keyamuddin whilst he was still asleep. This blow cut the upper lip of the said Keyamuddin and knocked off three of his teeth from the upper jaw. Immediately the blow was struck, the said Keyamuddin yelled out and set up when another blow was struck with the dao by the appellant Khabiruddin on his head causing another bleeding injury. On the cry of the said Keyamuddin, his wife Fuljan Bibi also got up just when the second blow was being struck on the head of Keyamuddin. She raised an alarm and the 'appellants fled from the but through the opening of the sindh. Both Keyamuddin and His wife. P. W. 2, claimed to have recognised the three appellants before us In the light of the hurricane lantern and to have disclosed the fact of their recognition to those who came there immediately after attracted by the hue and cry raised by Fuljan Bibi. From amongst those who so came there immediately after the incident, the prosecution examined Rahimuddin P. W. 4, a brother of the said Keyamuddim, Kasimuddin P. W. 5, and ukil shwashur of a sister of the said Keyamuddin, P. W.

6. Jahuruddin, who was an elder brother of the son‑in- law of the said Keyamuddin and one Muhammad Ali, P. W. 7, who is the brother‑in‑law of the younger brother Rahimuddin, of P. W. 1, Keyamuddin. All these witnesses stated that when they arrived there, they saw the injuries on Keyamuddin, the sindh cut in the plinth of the but and heard from Keyamuddin and his wife about their recognition of the three appellants. Rahimuddin, P. W. 4, brother of the said Keyamuddin then went to call a doctor, P. W. 3, Muhammad Makbul Hossain Khan, who came in the early morning and attended to the injuries of Keyamuddin. Various other persons also came to the house of Keyamuddin in the morning and heard of the occurrence and saw the injuries on Keyamuddin. Due to his injuries. Keyamuddin could not speak in the morning and so he handed over a slip, Exh. 1, to P. W. 7 Muhammad Ali, naming the three appellants as his assailants and sent him to the thana for lodging the first information report accompanied by his brother, P. W. 4, Rahimuddin The first information report was lodged by Rahimuddin at 9‑30 a.m. in the morning at Saturia police‑station which is only about three mills to the South of the house of Keyamuddin. The investigation was taken up immediately. The officer‑in‑charge of the said police‑station visited the locality at about 12 O'clock. He found Keyamuddin in a serious condition. So, acting under the advice of the doctor, P. W. 3, he did not think it wise to send him to the Manikganj Hospital for medical examination. The officer- in‑charge seized the hurricane, the three teeth said to have been knocked out of the upper jaw of Keyambddin, one blood‑stained shirt and the slip said to have been made over to P. W. 7, Muhammad Ali, when he went to the thana. Thereafter, on completion of the investigation, the said officer submitted a charge‑sheet against all three appel lants before us on the 9th of January 1956. The prosecution also set up a motive for the said offence which to the effect that there was some kind of land dispute between the said Keyamuddin and the appellant Moinuddin who out of this grudge had hired the other two appellants and caused the injuries on the said Keyamuddin in order to wreak vengeance. The preliminary enquiry was thereafter held by a Magistrate of the 1st Class who committed the three appel lants before us to stand their trial before the Court or Sessions on a charge under 'section 457 as well as on a further charge under section 307 of the Pakistan Penal Code against the appellant Khabiruddin and a charge under sections 307/114 against the two other appellants. These charges were, however, amended in the Court of Sessions. The appellant Khabiruddin was charged under section 326 of the Pakistan Penal Code and the two other appellants were charged under sections 326/109 and all the appellants were further charged under section 457 of the Pakistan Penal Code. The appellants all pleaded not guilty and claimed to be completely ignorant of the incident alleged by the prosecu tion. According to them, the said Keyamuddin was a man of dangerous character, as he had once been convicted in a murder case and. also put upon his trial on a charge of dacoity in another case. It was further suggested on behalf of the defence that on the very night, on which the incident is alleged to have occurred by the prosecution, there was a dacoity in the house of P. W. 5, Kasimuddin, and it was in the course of this dacoity that the inmates of the house of Kasimuddin caused the injuries on the person of Keyamuddin. Taking this as an opportunity, the said Keyamuddin had in order to feed fat his old grudge against the appellant Moinuddin over the land dispute made capital of the injuries sustained by him and wrongfully implicated the appellants. Upon these facts, the appellants before us were tried in the Court of Sessions by a jury consisting of five persons who returned a unanimous verdict of guilty against the appellants on the charges aforesaid and the learned Assistant Sessions Judge, 4th Court, Dacca, accepted the said unanimous verdict and convicted the appellant, as already stated. It is against this conviction that the present appeal has been preferred and the learned Advocate appearing in support of the appeal has characterised the charge delivered by the learned Assistant Sessions Judge to the jury as full of serious misdirections and non‑directions on material points and has also contended that the learned Assistant Sessions Judge has been guilty of doing all that a Judge charging a jury should not do. In fact, omitting the complaints of the learned Advocate for the appellants regarding the non- placing of a bit of evidence here or a bit of evidence there, we may catalogue the main misdirections complained of by the learned Advocate as follows‑ (1) That the charge is extremely biased and one‑sided; (2) that the learned Judge has committed the indiscre tion of dogmatically expressing strong opinions about questions of fact .without any appropriate or adequate caution that the jury was in no way bound by such ex pressions of opinion by the learned Judge; (3) that the learned Judge not content merely with expressing such opinions had gone to the extent to himself explaining away each and every one of the material dis crepancies and contradictions pointed out on behalf of the accused persons upon theories invented by the learned Judge himself and based upon no evidence on the record; (4) that the learned Judge had failed to place before the jury materiel facts and evidence in favour of the accused; (5) that the learned Judge's exposition of the law was not only meagre but in fact no exposition at all, as what he states in the charge is that he has merely read and explained as many as seven sections of the Penal Code; (6) that although elaborate cross‑examination was made of the prosecution witnesses to ascertain if any independent material witness had been withheld by the prosecution, the learned Judge did not consider it at all necessary to say anything about the presumption under section 114 (g) of the Evidence Act which the jury were entitled to draw if they were satisfied that any of the witnesses so withheld was a material witness; (7) that the learned Judge even went to the extent of placing before the jury certain facts as proved facts instead of leaving the jury, as he should have done, to come to its own conclusion with regard to the said questions of fact; and lastly; (8) that the learned Judge did not tell the jury what the appellants had stated in their examination under section 342 of the Code of Criminal Procedure. In addition to these, it is also complained that although admittedly there was an apparent interpolation in the state ment, recorded under section 161 of the Code of Criminal Procedure; of P. W. 1 Keyamuddin, one of the only two eye‑witnesses in this case, the. learned Judge denied to the defence the opportunity of having this statement compared with the copy of the statement, sent to the Superintendent of Police by the investigation officer, by refusing the prayer for the calling of the said statement. There can be no doubt that if any one of these mis directions is found to be established, it would constitute a material misdirection calculated to mislead the jury and the verdict of the jury would not in that event, be sus tainable. It is necessary, therefore, that we should examine the allegations made by the learned Advocate for the appellants. So far as the first complaint is I concerned, this is a general complaint and all that we need say with regard to this is that in the view that we have formed with regard to some of the other more specific complaints made in this case, we are inclined to agree with the learned Ad vocate that the learned Judge was in fact biased against the appellants. The second complaint relates to the dogmatic expressions of opinion by the learned Judge on questions of fact. As a simple of such dogmatic expression of opinion, we think it necessary to quote a few passages from the charge delivered by the learned Assistant Sessions Judge to illustrate the nature of the opinions expressed by him. The defence, it appears, took some pains to point out that the story of recognition given out by P. W. 2 could not be believed, for, having regard to the injuries caused to P. W. 1 Keyamuddin and on his own discrepant and contradictory statements which he had made in the Sessions Court and before the investigating officer he could not have been in a position to give out any cry at all. It was found out from the investigating officer that this witness had actually stated before him that he had tried to shout out, but could not shout after the receipt of the first blow on his mouth. With regard to this, however, what the learned Judge said after placing the discrepancies was as follows:‑ "On receipt of such an injury on the upper lip one can hardly shout in a loud voice but this does not mean that the injured did not at all shout to such an extent which was sufficient to attract the attention of the wife who was sleeping by his side." It was no part of the functions of the learned Judge to give this explanation. It was for the jury to say and it should have been left to them to say whether, in view of these discrepancies, they could believe the story of the recognition by Phuljan Bibi. Again, when dealing with the suggestion of the defence that the said Keyamuddin had in fact been injured while committing dacoity in the house of Kasimuddin, the learned Judge expressed himself thus:‑ "The hollowness of the suggestion is at once detected when you will find that there was no such occurrence in the house of Kasimuddin in the night of occurrence. The medical evidence regarding the injury on the upper lip of Keyamuddin also excludes the possibility of such suggestion. It is said by the M. O., P. W. 3, that the injury on the upper lip cannot be caused while in standing or in sitting position. This is too big a pill to swallow and you can safely ignore the suggestion that has been put forward by the defence side as to the cause of the injury on the person of Keyamuddin." Again, we have to observe that it was no business of the learned Judge to tell the jury to ignore the suggestion made by the defence but he should have placed before them the' defence suggestion as also the evidence which militates against the possibility of such suggestion and told them to form their own opinion with regard thereto. It is no doubt true that under section 298 (2) of the Code of Criminal Procedure the learned Judge is entitled to express to the jury his opinion upon questions of fact, even though such opinion may be strong opinion, but nevertheless, this does not mean that he can do so without adequately cautioning the jury that they are not bound by his expression of opinion on a question of fact and they are, if they so choose, fully entitled to differ from it. In the present case we find that apart from one solitary observation in the second line of the first paragraph of the charge that his opinion on facts is not binding on the jury, there is no warning or caution given in any other place in the said charge that the jury are entitled to differ from the learned Judge. This, in our opinion, was not a sufficient caution because it is now well‑settled that it is not sufficient merely to make a brief reference to this in the beginning of the charge or at the end of it but that the caution should be delivered immediately after the expression of the opinion by the learned Judge himself. In this connection, we may refer to the decision in the case of Kamiraddi Sheikh and other v. Emperor (37 C W N 1102). The misdirections com plained of in that case were similar to the misdirection complained of in the present case in more than one respect. In this case, Lort‑Williams, J., in delivering the judgment of the Bench, observed that:‑ "It is not sufficient for the Judge to give them this warning in a formal way either at the beginning or at the end of the charge. The warning must be given at the moment when he has forcibly or otherwise expressed his own opinion to the jury. There is nothing wrong in a Judge forming a strong opinion of the case, either of the prosecution or of the defence, and as strongly ex pressing it to the jury. But he ought not to form such a strong opinion nor express it, when the evidence is such that any reasonable person ought to be in reasonable doubt about which story they ought to believe." In this case, the learned Sessions, Judge concerned had also merely read and explained certain sections of the Penal Code. This also was considered insufficient and it was held that he must set down in his charge what he, in fact, said to the jury about the law, for otherwise, the appellate Court will not be in a position to decide whether the statement of the law was correct or not. To the same effect are the observations of Cunliffe, J., and Henderson, J., in the case of Madan Tilakdas and 4 others v. The Emperor (41 C W N 508). It may be worthwhile to quote the observations of Cunliffe, J., in this case for the guidance of the Courts below. The said observations are as follows:‑ "I think the Judge's duty may be said to be this. If he feels very strongly that the prosecution's case is a true one, whilst maintaining his care and his vigilance in present ing all the facts before the jury, he ought to, as much asp possible, conceal his feelings. It is no part of a Judge's duty to act as an Assistant Public Prosecutor. But if he feels that there is something extremely suspicious about the prosecution case, if he finds that the main witness for the prosecution is a person whose testimony should be regarded with the greatest caution, then he ought to show his hand to the jury." These are observations with which we respectfully agree and hope that the subordinate judiciary will take note of them. In this case also, the learned Judge had merely stated in his charge that he had read and explained to the jury various sections of the Penal Code. With regard to this, Henderson, J., observed: "It has been pointed out over and over again by this Court that it is absolutely necessary that the heads of charge should show clearly and distinctly what the exposi tion of the law actually was." This Court has also taken the same view in the case of Sultan Ahmad and others v. The Crown (P L D 1950 Dacca 27), where Ellis and Ispahani, JJ., observed as follows: "It is unfortunate that the learned Sessions Judge permitted himself to be carried away by his personal feelings and gave expression, in too emphatic language two observations which should not have found place in his charge to the jury placing before them, as proved facts, matters which they as jury were called upon to decide." It is thus clear that in the present case the expression of emphatic opinions by the learned Judge without the necessary cautions in the appropriate places clearly consti tuted serious misdirections which may well be said to be calculated to leave a misleading impression on the minds of the jury. The observations of Conliffe, J., which we have set out above from the decision in the case of Madan Tilakdas and 4 others v. The Emperor also apply with equal force to the allegation made in the present case against the learned Judge of having explained away discrepancies on theories invented by him. It may be convenient here also' to deal with the allega tion that the learned Judge placed certain conclusions of fact before the jury also as proved facts instead of leaving it to the jury to come to its own independent conclusion on the said questions of fact. To give only one instance of this, we may quote the following:‑ "You may therefore take it that it was a grievous hurt that was caused on the person of Keyamuddins. You have also heard from Keyamuddin that the hurt was caused with a sharp‑cutting sandao. The medical evidence supports it. You may therefore take it that the culprits have committed an offence of causing hurt." This again was very improper on the part of the learned Judge to say. It was for the jury to decide if upon the facts proved the offence came within the definition of "grievous hurt" or not but .the manner in which the learned Judge directed the jury it seemed that he assumed that the evidence of P. Ws. 3 and 1, Keyammuddin, when he states that he was struck by a sandao, was gospel truth and must be accepted. It was for jury to say whether they would or would not accept that evidence as true and it was not for the learned Judge to place it before them as a fact which had already been proved beyond reasonable doubt. If authority‑ is needed for this‑ proposition, we may refer to the observations of Teunon and Shamsul Huda, JJ. in the case of Amiruddin Ahmad v. Emperor (I L R 45 Cal. 557), where their Lordships observed that the Judge should avoid the use as far as possible of expressions which assume the guilt of the accused. Next with regard to the improper exposition of the law, as we have already pointed out it does appear from the charge delivered by the learned Judge that he merely states that he has read over and explained various sections of the Penal Code to the jury. We have already referred to two decision of the Calcutta High' Court where this practice has been condemned in no uncertain terms. In this High Court also, Ellis and Ispahani, JJ., in the case of Genda and others v. The Crown (2 D L R 76), condemned this practice and observed: "The recorded charge must contain sufficient materials for the High Court to satisfy itself that there was a proper and adequate explanation of the law involved and of the sections of the Code concerned in relation to the facts of the case." It appears that the learned Assistant Sessions Judge concerned in the present case is blissfully oblivious of these decisions of the Calcutta High Court and of this High Court and it is, therefore, necessary that we must again emphasise that this practice of merely stating in the heads of charge that various sections of the Code have been merely read over and explained should be avoided. It not only deprives the accused of the opportunity of pointing out to this Court that the exposition of the law was not correct but also deprives this Court of the advantage of knowing what it was that the learned Judge concerned actually placed before the jury. With regard to the omission to place material evidence in favour of the appellants before the jury, we may point out that in the present case, since there were only two eye‑witnesses, the defence made a serious attempt to discredit P. W. 2, the wife of the said Keyamuddin, so far as her story of recognition was concerned, and it appears that in her cross‑examination in the Sessions Court this witness herself admitted that it was for the first time that she saw the accused when they were escaping through the sindh. That this was not merely a chance admission was also sought to be established by the defence from the evidence of P. W. 4, the brother of the said Keyamuddin, who stated in his examination‑in‑chief that Fuljan Bibi also told him of the occurrence and she named the appellants as being persons recognised by her while flying away through the sindh. Yet the learned Judge did not consider these facts to be of sufficient importance to be placed before the jury. This fact, in our opinion, was a very material fact relating to one of the most vital questions that had to be decided in the case, namely, as to whether the appellants had been recognised beyond reasonable doubt as the mis creants and thus the failure to place this material portion of the evidence before the jury was a misdirection of the worst kind possible. Lastly, it is also true that the learned Judge has nowhere in his charge, either in the preliminary portion or in any other portion thereof, considered it worth while to tell the jury that they are entitled to presume if a material witness is withheld by the prosecution that such witness would not, if produced, have supported the prosecution case, even though it is evident from the cross‑examination of P. W. 1, the star witness himself, that the defence made desperate attempts to ascertain who were the immediate neighbours of the prosecution witness No.

1. Keyamuddin, and who were the persons that came to his house immediately after wards and they did succeed in obtaining the 'names of various persons, presumably related to P. W.1, Keyamuddin, who came to the place immediately after the incident had occurred, being attracted by the hue and cry raised by Keyamuddin's wife. The prosecution did not consider it worth while to call them, but only called one witness who could be said to be not a blood‑relation of P. W. 1 Keyamuddin, although he too was by courtesy a relation of the said witness as he was the ukil shwashur of his sister and used to be called Talai by courtesy by the witness himself. This again, in our opinion, was a serious omission on part of the learned Judge. It may be that he did not consider that this fact made any particular difference to the case, but it was' nevertheless his duty to point out and leave it to the jury to say whether they did or did not consider it to be of sufficient importance in the, present case, particularly, since it affected‑ the veracity of the witnesses examined by the prosecution. With regard to the allegation that the answers given by the appellants in their examination under section 342 of the Code of Criminal Procedure were not placed before the jury, we must observe that we do not see how this could have prejudiced the appellants, because the only answer that the appellants made in the said examination was that they were innocent and they would not call any witness in their defence. We do not, therefore, attach much importance to this. Lastly, with regard to the refusal of the prayer for the copy of the police diary submitted by the investigating officer to the Superintendent of Police concerned, we have to point out that we are not satisfied that the Judge wrongly exercised his discretion in refusing this prayer which was made at the close of the prosecution case. That the interpolation alleged was an apparent interpolation was placed before the jury by the learned Assistant Sessions Judge. So, the appellants can have no legitimate complaint on account of such refusal. For the reasons that we have given above, it is obvious that the charge suffers from more than one imperfection and, therefore, the verdict based upon such charge cannot, in our opinion, be sustained. We might, however, mention here that the learned Advocate appearing for the State, although he was reluctantly forced to concede that the charge did suffer from serious mis-directions, nevertheless, he boldly argued that, no matter what or how serious the misdirection in the charge, this Court has no power to set aside a verdict merely on the ground that a particular charge suffers from misdirections for, the onus is upon the appellant to establish as a fact that the misdirection has, in reality, mislead the jury. we are astounded by such fantastic proposition of law, for, it not only imposes an impossible burden upon the appellant to ascertain the manner 'in which the mind of the jury worked but also throws upon us the ditty to do that which, under section 418 of the Criminal Procedure Code we cannot do, that is to say, to decide an appeal against the verdict of the jury on questions of fact. We are, therefore, not in a position to agree with the learned Advocate that the appellant is called upon to establish that a charge has, in fact, misled‑ the Jury. It is sufficient that the misdirection are on material points, for, then we may be satisfied that they would be calculated to leave a misleading impression on the minds of the jury. If that is shown, we think the appellants have sufficiently discharged the onus. In the present case, that has been shown. Having come to the conclusion that this verdict cannot be sustained, the next question that arises is as to what procedure we should follow. We have given the matter our anxious consideration, for, we are fully conscious of the fact that a re‑trial should not be lightly ordered. But having regard to the facts and circumstances of this case, we cannot say that there is no evidence at all in the present case which should go before a jury. The fact that P. W. 1, Keyamuddin was injured and was very grievously injured cannot be disputed upon the evidence on record. The question, however, is whether the appellants are the persons who caused the injuries. This is a question relating to the credibility or belief or disbelief of a witness and not merely a question of drawing an inference from proved facts. This, strictly speaking, falls within the province of the jury and should, in our opinion, be left to the jury to decide. In these circumstances, we allow this appeal, set aside the verdict of the jury and the convictions and the sen tences passed on the appellants and direct that they be re‑tried in accordance with law on the same charges. During the pendency of the re‑trial, the appellants will, however, continue to remain in custody. The trial should be held by some other learned Sessions Judge and it should be held as expeditiously as possible. Let the records he sent down immediately. HASAN, J.‑I agree. Z. A. S. Appeal allowed.