P L D 1958 Dacca 445 (PLP)

4. Altogether 13 witnesses were examined on the side of the prosecution. The defence did not examine any witness. The prosecution examined witnesses to prove the association of the accused immediately prior to the occurrence. Secondly, they have also adduced evidence to prove extra‑judicial confessions alleged to have been made by the accused Gias and Fashir. They have also adduced evidence to prove that in pursuance of a, statement made by accused Fashir and Gias the police went to a spot where marks of violence were noticed and they also brought the dead body from a tank underneath a dam site. On this evidence, the jury returned a unanimous verdict which we have .stated before and after this verdict the Judge has made this Reference under section 307 of the Code of Criminal Procedure.

5. Mr. Sayem appears on behalf of the accused Fashiruddin, Mr. Ruhul Islam appears' on behalf of Abdul Muhammad and Mr. Daliluddin Ahmad appears on behalf of Giasuddin. Mr. M. Fazlul Haq appears on behalf of the State.

6. It has been contended on behalf of the accused that there were serious mis-directions by the Judge in his charge to the jury and it was also contended that if the jury were pro?perly directed on the evidence adduced, they would not have returned a verdict of guilty as against these accused. It is also contended on behalf of these accused that there was no sufficient evidence to go before the jury on which the accused could have been convicted. Mr. Sayem has further argued that so far as the accused Fashiruddin is concerned there is no extra‑judicial confession made by him and he was only implicated in an alleged extra‑judicial confession made by Gias and the fact that he was implicated in the extra‑judicial confession of the accused Gias was no evidence as against his client. In that connection. Mr. Sayem drew our attention to the case of Asgar and others v. The State. (P L D 1958 Dacca 75), to which my learned brother Rahman, J., was a party and te judgment was delivered by him. In that case it was definitely laid down "A retracted confession should not be made the basis of a conviction unless it is corroborated in material particulars by other evidence and that its value as against the other co‑accused is almost nil. This principle of law has also been enunciated in Bhuboni Sahu v. The King (2 D L R (P C) 39). Our attention has been drawn to the evidence of P. W. 8 Buda alias Abdur Rahman before the committing Court which has been put in at the instance of the prosecution under section 288 of the Code of Criminal Procedure. As observed by my learned brother in the case referred to above, the law is that in a case where evidence of any witness is put in under section 288 of the Criminal Procedure Code. "‑The Judge should direct the jury that where evidence taken in the committing Court has been admitted under section 288 the of the Code of Criminal Procedure, it may be used as evidence for all purposes and the jury may, if they so like, prefer that to the evidence given in the Sessions Court." In the evidence of this particular witness before the committing Court, he made a statement : "Under orders of S. L, Gias again kept the dead body under the dam. Under his order, accused Gias was taken to some distance by police constable and was kept concealed in a jungle there. S. I. then went to Lahirihat and returned with accused Fashiruddin. He showed us all the very places which were shown by accused Giasuddin and told (sic) that he, Giasuddin, Kasem, Dabir and one black (sic) man had killed Abdullah by throttling. He then got down the southern portion of pukur and brought out the dead body from under the dam where it was replaced by accused Giasuddin." This was statement of the witness before the committing Court which was read out before the jury. The question whether the Judge was right in admitting this piece of evidence. Section 26 of the Evidence Act lays down "No confession made by any person whilst he is in the custody of a police‑officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person". It has been contended on behalf of the accused Fashiruddin that this extra‑judicial confession is not admissible in view of section 26 of the Evidence Act. Mr. Huq, appearing on behalf of the State, however, has drawn our attention to section 27 of the Evidence Act where it has been said "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police‑officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved".

7. It is true that section 26 is controlled by section 27 of the Evidence Act. This however is not a case where the alleged con?fession was made only in the presence of a police‑officer but it is a case of an alleged confession made while accused Fashiruddin was in police custody. Under section 27, so much only of the information, whether it amounts to a confession or not, as relates to the fact discovered is admissible in evidence. Taking this to be the law, the alleged confession, where it is said that he, Giasuddin, Kasem, Dabir and one black man killed Abdullah, is not attracted by section 27 of the Evidence Act. That was not a fact in pursuance of which the alleged discovery was made. So, in any view, the learned Judge was clearly in error in admitting the evidence as against the accused Fashiruddin. Moreover, the learned Judge in his charge to the jury did not warn them that they should not be in any way influenced by the said alleged confession of accused Fashiruddin. Under section 307 of the Code of Criminal Procedure, the whole case is no doubt before this Court and this Court will exercise any of the powers which it may exercise on appeal and, subject thereto, it shall, after giving due weight to the opinion of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him upon the charge framed and placed before it. The law is well settled that the verdict of a jury cannot be disturbed unless it is found that this verdict is perverse and manifestly wrong or one which a reasonable body of men could p not have reached on the evidence placed before them. But the Court has no doubt to determine whether a reasonable jury pro?perly directed could, on this evidence adduced, have returned a verdict as they have done. The High Court will no doubt see whether it is reasonable or proper that the jury would not have returned the verdict but for the misdirection and non‑direction complained of. After all, this Court can interfere where this misdirection or non‑direction has caused a complete failure of justice. In this connection, a reference may be made to another case, The State v. Razzaque and others (P L D 1957 Dacca 337), where my learned brother Rahman, J., sitting with Ismail, J., observed "It has been generally accepted that in a reference under section 307, Cr. P. C.. the High Court has in a fit case the power to order a retrial if it considers the same to be necessary for the ends of justice which is the determining factor also for the High Court in disposing of such reference. But, at the same time, it should be remembered that a retrial is not to be lightly offered and should not be ordered unless the High Court is unable upon the evidence on the record to come to any definite conclusion of its own after giving due weight to the opinion of the Judge and the jury or unless it is satisfied that there has been some serious error of procedure which has prejudiced the accused." In that particular case, apart from the extra judicial confession, there was no other direct evidence of the complicity of the accused persons. The rest of the evidence was merely circum?stantial and that too was neither convincing nor complete so as to be sufficient to form the basis of any conviction. In view of the discrepant nature of the evidence and the manner in which the evidence was brought to light it was decided that upon that evidence it would have been unsafe to convict the accused under any of the charges framed in that case.

8. There are other serious mis‑directions and non‑directions in the charge delivered by the learned Judge to the jury P. W. 8 Budhu has stated in his evidence before the Sessions Judge "that Fashir throttled him and while Kasem pressed his leg against the ground, Dabir pressed him by his chest against the ground, Gias himself was standing close by". In this evidence the accused Abdul was not named. The learned Judge nowhere in his charge has stated to the jury that Abdul was not named by the accused Gias in his extra judicial confession as deposed to by P. W.

8. Then again the police‑officer, P. W. 12, has stated in his cross?-examination that he examined Budhu on the 19th of February 1957, at Kadu Saha but he did not record his statement under section 161 of the Code of Criminal Procedure. The learned Judge also failed to mention that fact before the jury and did not warn them that in view of the statement of Budhu and the state?ment of P. W. 12, it would be for them to decide whether they would rely on the evidence of the witnesses about the complicity of the accused Abdul and the other accused in the crime These are serious mis‑directions and non‑directions which have occa?sioned a complete failure of justice. We do not know exactly what would have been the verdict of the jury if they were pro?perly directed. But it is difficult to say whether the jury would have returned a verdict of guilty against the accused if they were warned in the line which we have indicated above. When the evidence is circumstantial, the mis‑directions in the charge to the jury would operate against the accused and certainly there is a miscarriage of justice and the verdict should be set aside and, in view of the authority laid down in the case of the State v. Razzaque and others where there has been an illegality in the procedure and where there has been such serious mis‑directions and non‑directions causing failure of justice, it cannot be said that the accused were properly tried, before the learned Additional Sessions Judge.

9. In this matter, in considering the question whether the case should go back for retrial, we have also taken into consider?ation the argument of the learned Advocate Mr. Sayem whether there was evidence as against the accused for which they should be again tried by the Court. It is no doubt true that there is an extra‑judicial confession and the evidence of association and the evidence that the dead body was brought out by the accused Giasuddin in this case and as against the accused Fashiruddin there is also evidence of association and also evidence that he brought out the dead body from underneath the dam and as against the accused Abdul there is also evidence of association immediately prior to the occurrence. It is not for us to say at this stage what should be the effect of this evidence led by the prosecution. But it is clear that there is some evidence in this case for which the case should go back for retrial. It is for the Judge and the jury to decide whether on this evidence the accused or any of them could be convicted of the charges framed as against them. Even the learned Judge in his letter of Reference has recommended to this Court that so far as the accused Giasuddin and Fashiruddin are concerned, they should have been properly convicted under section 201 of the Pakistan Penal Code.

10. In the circumstances, we see no option but to send back the case for retrial of these three accused, Giasuddin, Fashiruddin, and Abdul Muhammad, in accordance with law. The Reference is, therefore, disposed of and the case is sent back for retrial in accordance with law in the line as indicated above.

11. RAHMAN, J.‑Reluctant as I am even in a case of a jury trial to order a retrial, I agree with the order passed by my learned brother in the present case, for, according to me, there has been a serious error of procedure in the present case. The learned Judge had a discretion either to admit or not the evidence Of P. W. Budhu given in the committing Court under section 288 of the Code of Criminal Procedure. Now, it has repeatedly been pointed out by this Court as well as by other High Courts that mis-discretion should be exercised in a proper and judicial tanner, In the present case, since, it was apparent from a plain reading of the deposition in the committing Court of the said witness that it contained a purported extra judicial confession of one of the accused persons, which was hit by the provisions of section 26 of the Evidence Act, the learned Sessions Judge, in my opinion, wrongly exercised his discretion in admitting this and making it evidence for all purposes under section 288 of the Code of Criminal Procedure. If this was intended merely to contradict this witness by a previous statement of his, as it appears from his cross‑examination, then portion of the evidence could have been put in under section 145 of the Evidence Act. I also consider this to be an error in the procedure 'of the trial which, there can be no doubt, has caused serious prejudice to the accused. I, there?fore, concur in the order of retrial made by my learned brother in the present case.

12. Let the records be sent down immediately and the retrial be held as expeditiously as possible. Z. A. S.??????????? Retrial ordered.