P L D 1960 Dacca 955 (PLP)

MURSHHD, J.‑The appellants were tried by‑Mr. G. R. Chowdhury, Sessions Judge, Khulna, with a jury on a charge under sections 302/34 of the Pakistan Penal Code.

2. The prosecution case, in substance, is as follows : On Monday, the 26th Aswin, 1365 B. S., corresponding to 13th October, 1958, one Sundarali Gayen was returning from a hat fn a place called Jhowdanga along with one Babarali Gazi. They were both proceeding towards their huts at about 7 or 7‑30 p.m. riding on bicycles. Babarali Gazi had a burning hurricane lantern in his hand and he was going ahead of Sundarali. When they came to a place near the house of one Kunja Ghosh, Babarali heard a sound which proceeded from the bicycle of Sundarali. He returned towards Sundarali and heard : "Oh Babarali, I am being killed." At this point of time, he saw appellant Naderali Gazi with a gachhl dao in his band, appellant Samar Mallick with a dagger, appellant Kader Buksha Gazi with a ruler and appellant Nizam Dhali with a hurricane lantern in hand. When Babarali challenged them, Naderali asked him to keep silent on pain of being killed. Appellant Kader Buksha Ghazi gagged the mouth of Sundarali and thereafter appellants Kader and Samar Mallick dragged Sundarali towards the north by the edge of the road. Appellant Nizam Dhali went away towards Jhowdanga in the south. Appellant Naderali Gazi ran away towards the west after releasing Babarali whom he bad caught hold of. Thereafter Babar ali hastily proceeded towards the north on his bicycle. When he had gone a little distance, he met one Nawabdi to whom he narrated the occurrence. He then came back with Nawabdi to the place of occurrence and found Sundarali on the road sitting down and pressing his belly with both hands. On being questioned by Nawabdi, Sundarali stated that he had been injured by appellants Kader, Samar and Nizam. He asked Babarali to immediately inform his brother. He also made similar request to Nawabdi. One Sultan Kazi was seen by Babarali and Sundarali at a place between the aforesaid place of occurrence and Jhowdanga Hat. Both Babarali and Nawabdi again saw Sultan Kazi coming from the south. This Sultan Kazi also asked Babarali Gazi to give in formation about the incident at the house of Sundarali. Babarali Gazi left the place and gave information about the occurrence to Baberali Gayen, Tarachand and another person called Fakirchand, Babarali Gazi also stopped at the place of occurrence and it is alleged that to all these persons the deceased made a dying declaration implicating the four appellants. Thereafter Babarali Gazi gave information to Dr. Golam Rasul and went to Jhowdanga police out‑post and lodged first information report. In the meantime, Sundarali died.

3. The police came to the place and found that Sundarali had a dagger penetrated in his belly and another injury on account of which a portion of his intestines had come out.

4. The body of the deceased was sent to Satkhira morgue where the post‑mortem examination was conducted.

5. After completion of the investigation and a preliminary inquiry by a competent Magistrate, the appellants were committed to the Court of Session to stand their trial on the aforesaid charge.

6. The appellants pleaded not guilty to the charge framed against them. It is their case that they have been falsely impli cated in this case. It is their further case that the witnesses who have given evidence about the dying declaration made by the deceased are interested witnesses.

7. The jury returned a unanimous verdict against the appel lants under sections 326/34 of the Pakistan Penal Code.

8. The learned Sessions Judge agreed with and accepted the verdict of the jury and convicted the appellants under the afore said sections. He sentenced them to suffer rigorous imprison ment for a period of 7 (seven) years each and also to pay a tine of Rs. 500, in default, to suffer rigorous imprisonment for a further period of 6 (six) months.

9. This appeal is directed against the conviction of the appellants and the sentences passed on them, as stated above.

10. Mr.. A. T. M. Mustafa, learned counsel, who has appeared before us on behalf of the appellants, has very rightly pointed out that the alleged dying declaration made by the deceas ed in this case is of very great importance inasmuch as that is the only evidence with regard to the actual assault on the deceased about which there is no other evidence. He has made a grievance of the fact that the learned Sessions Judge has nowhere administer ed to the jury a caution with regard to the evidentiary value of the alleged dying declaration. The learned counsel has argued that the learned Sessions Judge should have told the jury that although there is no legal bar to the jury basing the conviction of the appellants on the alleged dying declaration but prudence requires that there should be corroboration of such dying declaration inasmuch as it is not made on oath and not subjected to cross‑examination. It has now become a well established practice to administer to the jury some such caution, as stated above, with regard to eviden tiary value of the dying declaration. In the facts and circumstances of this case, such a direction by the learned Sessions Judge was all the more necessary.

11. We, therefore, bold that the failure of the learned Sessions Judge to direct the jury on the evidentiary value of the dying declaration is a serious omission, which, according to us, has vitiated the trial.

12. Furthermore, we find that although the learned Sessions Judge has explained the law with regard to the applica tion of section 34 of the Pakistan Penal Code, he has failed to do, so with reference to the facts of this particular case. The expla nation of law in the abstract could not have been of any assistance to the jury to appreciate the facts of this case with reference to the law which would be applicable.

13. We, therefore, think that the appellants have been prejudiced in their trial by the charge that was delivered to the jury by the learned Sessions Judge.

14. The result, therefore, is, that we allow this appeal and set aside the conviction of the appellants and the sentences passed on them. It is directed that this case be sent back on remand to the trial Court for re‑trial of the appellants and the disposal of the case in accordance with law.

15. The appellants will remain in jail custody pending their re‑trial. KHAN, J.‑I agree. K. B. A. Appeal allowed.