P L D 1961 Dacca 113 (PLP)

A. J. KHAN, J‑The appellant Makbul Ahmed along with one Abdul Hamid was tried by Mr. G. Mowla, Sessions‑ Judge of Noakhali, on a charge under section 396 of the Pakistan Penal Code. The learned Sessions Judge convicted the appellant Makbul Ahmed under the said section and sentenced him to transportation for life and acquitted the co‑accused Abdul Hamid of the said charge on benefit of doubt. The prosecution case, in substance, is as follows :‑On the night following the 31st of Ashar, 1365 B. S. corresponding to 17‑7‑58, Durga Prasad Majumader, since deceased, his wife Hara Parabati alias Phani Bala and a little child aged about two years WILK sleeping on a khat in the western room of their west Mid hut. P. W. Anna Purna, widow of Durga Prasad's younger brother, was sleeping in another but of the same homestead in that night. At about 3 a.m. Anna Purna woke up from sleep on hearing sound from Durga Prasad's hut. She at once called out to Phani Bala : "Phani Bala, Phani Bala, why 1 am hearing groaning sound of Durga Prasad ?" There was no reply to her query. Then she got up and came out with a lighted kopi lamp and saw focus of torch light and heard sounds of breaking of trunks inside the but of Durga Prasad, and she felt that thieves had entered into the but of Durga Prasad. She at once ran to the house of P. W. 6 Lalit Mohan Majumdar and called out to Lalit and other inmates of that house, saying that thieves had entered into the but of Durga Prasad: At this, Lalit Mohan Majumdar, (P. W. 6), Hara Lal Majumdar, (P. W.11), and his son Dulal Chandra Majumdar, (P.W. 12) and Govinda at once came out and hastened to Durga Prasad's house with two burning hurricane lanterns and lathis in their hands. As soon as they reached the ghata of Durga Prasad, they saw a dacoit standing in front of the door of Durga Prasad's hut. It was from a distance of 10/12 cubits. When they approached near the door they recognised that dacoit to be the appellant Makbul who was brandishing a dagger in one hand and holding a torch in another hand and focussing the same. P. W. Lalit asked his companions to assault and arrest Makbul, whereupon Dulal dealt Makbul a lathi blow, as a result of which the dagger which was in the hand of Makbul, fell down. The appellant Makbul then, in his turn, dealt a blow on Dulal with his torch and then escaped. Those P. Ws. then entered into the but of Durga Prasad and found Durga Prasad lying dead on the khat with bleeding injuries with his hands and neck tied. They also found Hara Parbati lying naked and unconscious on the floor with her hands and feet tied with her wearing apparels, her mouth burnt and cotton was found pressed in her mouth. They took out the cotton from the mouth of Hara Parbati, untied her hands and removed her to the eastern room and placed her on a chowki and poured water on her head. Trunks and suit cases were found broken on the floor and a sindh was found cut in the eastern plinth towards the north of the door. On their alarm, neighbours came. P. W. Lalit sent Krishna Kumar and Dwarika Duttato call P. W. 2 Annada Charan Majumdar. Hara Parbati was unconscious and could not speak. Annada came and hastened to the thana and lodged a first information report on the following morning at 10‑30 a.m. the thana being 12 miles from the place of occurrence. The President of the Local Union Board, P. W. 13 Md. Abdur Rashid, was called and he came at about 8 a.m. and saw the condition of Hara Parbati, Durga Prasad and the ransacked condition of the hut. Hara Parbati was unable to speak. The President asked her as to whether she was able to recognise the miscreants. She nodded her head, indicating that she had recognised them. Then he asked her whether she could read and write and she nodded her head in the affirmative. The President then supplied her with a piece of paper and pen and she wrote two‑ names namely the names of the appellant and the acquitted accused Hamid on it and put her signature and handed it over to the President. Police came in the afternoon of that day and held inquest on the dead body of Durga Prasad and sent it to the morgue. The Investigating Officer seized the alamats, namely, one red coloured bottle with a tin cork containing liquid and another empty small bottle, one dagger, one iron sindh kathi, one blue cloth bag, one trunk, two suit‑cases, one broken altarap, one hurricane and one lock as per seizure list Exh.

2. Hara Parbati was at that time found in her senses ; but she was unable to speak distinctly. He made arrangement for her treatment. The President showed him the slip of paper Exh. 4 on which Hara Parbati wrote the two names and he asked him to keep it with him, saying that he would take it later on. This slip was, however, seized on 19‑7‑58, in the presence of the Inspector. The police also seized two hurricanes and one kopi lamp produced by P. Ws. Lalit, Haralal and Anna Purna as per Exh.

5. Dr. M. Hussain, the then Assistant Surgeon of Sadar Hospital of Noakhali, held the postmortem examination on the dead body of Durga Prasad on 18‑7‑58, noon. He found several injuries on the person of Durga Prasad and he opined that death was due to asphyxia as a result of strangulation aggravated by other wounds of the body and that all the injuries were ante mortem and homicidal in nature. The two bottles were sent to Dr. Abdur Rouf, the then Civil Surgeon of Noakhali, and he examined the contents and gave his opinion. In his opinion the liquid sent in one bottle was chlorform which might be used for turning anybody unconscious by inhalation. He further opined that if the liquid was soaked in cotton and the same was pressed against the skin or mucous membrance, it might case erosion. The police after completing investigation submitted charge- sheet against the appellant and some others. They were tried previously under sections 394 and 302/34 of the Pakistan Penal Code. The present appellant and the co‑accused Abdul Hamid were convicted under section 394 of the Pakistan Penal Code and sentenced to transportation for life and an appeal was taken to this Court which was allowed and the learned Sessions Judge was directed to try the appellant and the co‑accused on a charge under section 396 of the Pakistan Penal Code. The appellant and the co‑accused were accordingly charged under section 396 of the said Code. The defence was that Durga Prasad had pledge business and in connection with that he had occasional quarrels with his pledgers, and as such, he created enemies. Durga Prasad also was bringing up a boy of about two years old for the purpose of adoption which was not liked by his wife Phani Bala and his brother P. W. 6 Lalit Mohan Majumdar. The appellant Makbul Ahmed has got enmity with P. Ws. Krishna Kumar and Haralal over a dispute regarding a ditch and over a land near Makbul's house and as such, the appellant has been falsely implicated by them. It was also suggested that Phani Bala was under coloroform and as such, being unconscious, it was not possible for her to recognise the accused and that some unknown miscreants might have committed the offence. The learned Sessions Judge, on a consideration of the evidence on record and facts and circumstances of the case, convicted the appellant under section 396 of the Pakistan Penal Code and sentenced him, as stated above. He, however, acquitted the co‑accused Abdul Hamid on a benefit of doubt. This appeal is directed against the conviction of the appellant and the sentence pronounced on him, as stated above. At the hearing Mr. Badrul Haider Choudhury, the learned counsel, has appeared on behalf of the appellant while the State is represented by the learned Advocate Mr. Abdur Rasheed. Mr. Choudhury has taken us through the entire judgment of the learned trial Judge and also through the evidence. He contends that the evidence adduced by the prosecu tion with regard to the recognition of the appellant during the occurrence in question, should not be accepted in as much as none of the witnesses who deposed to have recognised the appellant, did not disclose the fact of such recognition immediately after the occurrence and that the name of the appellant does not find place in the first information report. The learned counsel further contends that the trial of the appellant has been vitiated in as much as the provisions of section 342 of the Code of Criminal Procedure have not been properly complied with, as a result of which the appellant has been highly prejudiced and there has been failure of justice. In view of the order that we propose to pass, we do not like to express opinion as to the merits of the case, i.e. as to the fact whether the evidence of recognition should be accepted or not. On a perusal of the record, we find that the learned Sessions Judge has not properly complied with the provisions of section 342 of the Code of Criminal Procedure. In this case the conviction of the appellant rests on the evidence of recognition as deposed to by P. W. 6 Lalit Mohan Majumdar, P. W. 10 Hara Parbati Majumdar alias Phani Bala, P. W. 11, Hara Lal Majumdar and P. W. 12 Dulal Chandra Majumdar. The evidence of P. W. 10 Hara Parbati Majumdar is of twofold, i.e., her direct evidence that she recoginsed the appellant during the commission of the dacoity with murder. Her further evidence is that on being questioned by the President Abdur Rashid as to whether she recognised the culprits, she wrote the name of the appellant and the name of the co‑accused Abdul Hamid on a piece of paper, as she was unable to speak due to the effect of her being unconscious for several hours being choloroformed. The evidence of Lalit, Hara Lal and Dulal is that they were the first to reach the ghata of Durga Prasad with hurricane lanterns and lathis in their hands and saw a dacoit standing in front of the door of Durga Prasad brandishing a dagger in one hand and focussing a torch in another hand. Coming closer, they recognised the man to be Makbul. They had a tussle with him and under the order of Lalit to beat him, P. W. 12 Dulal struck Makbul Ahmed with a lathi, as a result of which the dagger in the hand of Makbul fell down on the ground and Makbul, in his turn, assaulted Dulal with a torch light and escaped. As a result of the assault by Makbul, Dulal sustained a scratch injury on his back which was examined by Dr. Nagendra Kumar Karmakar, P. W.

5. The learned Sessions Judge, after stating the above evidence of P. Ws. Lalit, Haralal and Dulal, observed :‑‑"Thus, it was not very difficult for them to recognise accused Makbul". There is also the medical evidence of P. W. 5 regarding the injury which is said to have been sustained by Dulal in the hand of the appellant Makbul. Regarding the evidence of Hara Parbati, it appears that the learned Sessions Judge has accepted her evidence with regard to Makbul and the co‑accused Hamid, but acquitted the co‑accused Hamid on the following observation.‑‑"So far as accused Hamid is concerned, his recognition depends only on the uncorroborated testimony of P. W. 10 Hara Parbati, I have no doubt. in my mind that she also saw and recognised accused Hamid, but as she stands alone I give him benefit of doubt." It is, therefore, clear that the learned Sessions Judge would not have convicted the appellant only on the evidence of Hara Parbati and he mainly relied on the evidence of recognition as given by P. Ws. Lalit, Hara Lal and Dulal (P. Ws. 5, 11 and 12 respectively). It is, therefore, contended by Mr. Badrul Haider Choudhury that the learned Sessions Judge has not drawn the attention of the appellant to all the important circumstances appearing against him in evidence on which he based the conviction of the appellant and as such, the appellant has been highly prejudiced in his trial, and there has been a failure of justice. Consequently, the trial has been vitiated. On going through the questions and answers recorded by the trial Judge in his examination of the appellant under section 342 of the Code of Criminal Procedure, we find that there is substance in the contention raised by Mr. Badrul Haider Choudhury. The questions put to the accused appellant and the answers given by him were :‑ "Q.‑The prosecution adduced evidence against you that in the night following 31st Ashar 1365, B. S. you along with 7 or 8 persons more committed dacoity in the house of Durga Prasad Majumdar in the village Sreepaddi under P. S. Senhag and while committing the dacoity anyone of you killed Durga Prasad Majumdar, and made Fanibala senseless by using choloroform. And when you were dragging her down from the cot she recognised you in the light of a lamp. What is your defence? A.‑Innocent. Q.‑Will you adduce any evidence in defence ? A.‑No. Q.‑Will you say anything more ? A.‑No ". From the above, it appears that the learned trial Judge did not at all draw the attention of the appellant with regard to another important piece of evidence against him relied upon by the trial Judge, namely, Exh. 4 in which Hara Parbati is said to have put down the name of the appellant and which was made over to the President, namely, P. W. 13, Abdur Rashid. The evidence of P. Ws. 6, 11 and 12 regarding their tussle with the appellant and regarding the fact that the appellant dealt a blow on Dulal with his torch, as a result of which he sustained injury on his back, was not put to the accused, so that he might offer an explanation, if he chose. Another important piece of circumstantial evidence, namely, the dagger which was said to have been dropped from the hand of Makbul Ahmed at the time when he was dealt a blow by Dulal and which dagger was produced at the trial, was not also at all put to the appellant, and all these vital circumstances appearing against the appellant were not put to him in the examination under section 342 of the Code of Criminal Procedure, and as such, he had not the opportunity to offer his explanation if any. The object of section 342 of the Code of Criminal Procedure has been very clearly laid down by their Lordships of the Federal Court in the case of Aminul Haque v. Crown (P L D 1952 F C 63) Mr. Abdul Rashid, C. J. delivering the judgment of the Court observed as follows :‑ " Section 342, Criminal P. C. enjoins that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him he shall be questioned on the case after the witnesses for the prosecution have been examined and before he is called for his defence. It is not sufficient to put a general question to the accused whether he has anything to say about the charges levelled against him. When a point arises in the evidence against the accused which the Court considers vital, it is the duty of the Judge to call the attention of the accused to the point, and to ask for an explanation. The whole object of enacting section 342 of the Criminal P. C. is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. It is true that section 342 was not intended for the purposes of cross‑examining the accused or for filling up gaps in the case for the prosecution. But it is no less serious an error to go to the opposite extreme, and by excess of restraint, to defeat the primary object of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case against him. Reference may be made in this connection in the case of Dwarkanath Verma v. King Emperor 37 C W N 514 (P C)." The same principle has been re‑iterated by their Lordships of the Federal Court in the case of Abdul Wahab v. The Crown (P L D 1955 F C 88). Mr. Muhammad Sharif, J. delivering the judgment of the Court observed as follows. "It was contended that such a vague question as was put to the appellant did not fulfil the requirements of section 342, Cr. P. C. and the special leave to appeal was granted to examine that position. Since this is not the first case of its kind, which has come up to this Court, where the examination of the accused was sought to be made by a vague and a general question, it is desirable for the guidance of the Courts to point out what is really necessary to be done where the accused is examined under section

342. Section 342 says:‑ "(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previ ously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions, orby giving false answers to them ; but the Court and the Jury (if any) may draw such inference from such refusal or answers as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (4) No oath shall be administered to the accused." " The opening words of the section are very important. It is "for the purpose of enabling the accused to explain the circumstances appearing in the evidence against him " that his examination is needed. Where "the circumstances appearing in evidence against him" are not put to the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but it is an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. In Tanis case (20 Cr. L. J. 12 Nag.), it was held "in order that the accused may explain all the facts appearing in the evidence against him, it is necessary that his attention should be directed to all the vital parts of the evidence against him, specially if he is an ignorant person who cannot be expected to know or understand what particular parts of the evidence are or are likely to be considered by the Court to be against him." In Alimuddin's case (52 Cal. 522), it was laid down "The Court should not only point out to the accused the circumstances appearing in the evidence which require explanation but it must out of fairness to the accused exercise that power in such a way that the accused may know what points in the opinion of the Court require explanation and failure or refusal on the part of the accused to give the explana tion will entitle the Court to draw an inference against him". In the Calcutta case cited above, it was also pointed out that " The word ` generally ' does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the questions should relate to the whole case generally, and should not be limited to any particular part or parts of it. The word ` generally ' does not mean that the accused cannot be subjected to a detailed examination by the Court. The law intends that the salient points appearing in the evidence against the accused must be pointed out to him in a succinct form and that he should be asked to explain them if he wished to do so." It should not, however, be overlooked that the real object of section 342 is not to subject the accused to a detailed cross -examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn the accused should be afforded an opportunity to offer an explanation, if he has any." The above principle of law was followed by a Division Bench of this Court in the case of Mafiz‑ud‑Din v. The Crown (P L D 1955 Dacca 58). In this case the petitioner was examined under section 342 of the Criminal Procedure Code twice‑once on 5th January 1952, and again on 29th January 1952. In his examination on 5th January 1952, the first question was : " You have heard the evidence of the prosecution witnesses. Why should you not be punished ?" His answer was : " I am innocent." The next question was : " Were you convicted and sentenced for 8 years previously ?" His answer was : " Yes, I was." On the 29th January 1952, the only question which was asked of him was : " You have heard the examination and cross‑examination of the prosecution witnesses. What is your defence T' His answer was: " I am innocent." Acting Chief Justice Mr. Ellis delivering the judgment observed as follow :‑ "We cannot hold that these questions and answers are an adequate compliance with the mandatory provisions of section 342 of the Code of Criminal Procedure and we would draw the attention of the learned Magistrate to the observations of their Lordships of the Federal Court in the case of Rahim Baksh v. Crown (4 D L R 53=P L D 1952 F C 1) and Aminul Haque v. The Crown (57 C W N 5 D R 1= P L R 1 Dacca 863=P L D 1952 F C 63). The learned Magistrate must follow the directions given therein when he re‑examines the petitioner under section 342 of the Code." Again, in the case of Abdus Salam Molla v. The Crown (P L D 1955 F C 129), Muhammad Sharif, J. observed as follows :‑ " Section 342 deals with the examination of the accused with particular reference to the circumstances appearing in evidence against him. The question put to the accused were :‑ "Q. 1.‑‑You have heard the evidence adduced against you, do you want to say anything ? Ans.‑I am innocent. Q. 2.‑Do you want to say anything more ? Ans.‑No." "In fairness to the accused, it was necessary to call his atten tion to the slip of paper which was alleged to have been recovered from his pocket and to ask him for an explanation, if any. It has been frequently observed, more particularly in cases coming up from East Pakistan, that the statement of the accused is taken not with, a view to an explanation from him in relation to the matters appearing in evidence against him and which are likely to influence the mind‑ of the Court in coming to an adverse conclusion, but merely as an empty formality. Com pliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demand of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply. The Courts in Pakistan should make a note of this, and the require ments of section 342 must be fulfilled." In the case of Md. Yakub v. The Crown (6 P L R Dacca 335) Muhammad Munir, C. J., observed "Before we conclude, we must express our regret at the perfunctory manner in which accused persons are being ques tioned by the Presiding Officers of Original Courts in this Province under section 342 of the Criminal Procedure Code. The law on this point bas been explained in several decisions of this Court which are either not being studied by the subordinate judiciary or, what is more serious, are being ignored." If the omission to question the appellant on the main evidence led against him result in miscarriage of justice or prejudiced the appellant in his defence, the conviction is liable to be set aside." As pointed out above, the learned trial Judge omitted to question the appellant on the main evidence led against him which undoubtedly resulted in miscarriage of justice and prejudiced the appellant in his defence, and as such, in our opinion, the trial has been vitiated and the conviction is liable to be set aside. Now, the question is whether in the facts and circumstances of the case a re‑trial should be ordered. On a consideration of the facts and circumstances of this case, we feel that for the ends of justice a re‑trial of the appellant should be ordered. We accordingly allow the appeal, set aside the conviction and the sentence pronounced on him by the learned Sessions Judge and direct that the appellant be re‑tried according to law after complying with the provisions of section 342 of the Code of Criminal Procedure in the light of the principles of law laid down above. The appellant will remain in custody until the re‑trial. Let the re‑trial be expedited. M. R. KHAN, J.‑I agree. K.B.A. Appeal accepted : Re‑trial ordered.