P L D 1962 Dacca 576 (PLP)

MURSHED, J.‑Appellant Sahed Ali Sardar alias Sahed Ali and Kader Majhi were tried by Mr. Mafizul Huq, Additional Sessions Judge, Bakarganj with the aid of Assessors.

2. Appellant Sahed Ali was charged under section 302 of the Pakistan Penal Code and appellant Kader Majhi was charged under section 324 of the said Code.

3. Prosecution case, in substance, is as follows . Mouja Tetulia within police station Hizla in the district of Bakerganj is divided by a river carrying the same name. Tetulia Mouja is to the west of the river running north to south, and Tetulia Char and Char Sultani Santoshpur, are situated to the east of the said river. Tetulia Char being to the north of the other Char. Both P. W. 1 Makbul Ahmed, who is the complainant in this case, as well as one Fazle Karim Akon, who is a co‑accused of the appellant in the trial Court, belonged to Mouja Tetulia. Certain plots of land of both the Chars belonged to P. W. 1 Makbul Ahmad. One of the plots belonging to him in Tetulia Char is plot No. 4476, plot No. 2545 lying to the southwest of the aforesaid plots is Sultani Santoshpur Char under the Ulania Estate and the Government both being landlords in respect of these plots. Makbul Ahmed along with two other persons by the name of Nazem Ali Akon and Fazle Karim Akon took settlement of 8 annas share in respect of these plots from the Ulania Estate while Makbul Ahmed and Nazem Ali Akon took settlement in equal shares from the Khas Mahal in respect of the remaining 8 annas share. These co‑sharers possessed the said plots for the last 1.1 or 15 years. Makbul Ahmed also possessed the aforesaid plot No. 4476 of Tetulia Mouja. In a portion of this plot Makbul Ahmed had grown seedlings. Fazal Karim Sikdar (co‑accused of the appellant) also claims title in respect of this plot. To the north of plot No. 2545 is a plot belonging to one Abdul Latif Faran (P. W. 11) at a distance of about 200 cubits.

4. On Saturday, the 24th of Sravan 1365 B. S., correspond ing to 9th of August 1958, at about 8 to 9 a.m. P. W. 1 Makbul Ahmed went to the eastern side of the river with 18 labourers for the purpose of transplanting paddy seedlings on the aforesaid two plots. Among those labourers were one Abdul Gafur Rari (deceased), Arab Ali (P. W. 2), Serajul Huq (P. W. 4), Fajil Munshi (P. W. 3), Safiar Rahman (P. W. 5), Panchhari (P. W. 7) and Abdul Gani Rari (P. W. 15). The labourers transplanted seedlings on some part of the plot in question but there was a certain amount of surplus seedlings left. Makbul Ahmed went to plot No. 2545 along with some of the labourers who carried the surplus seedlings. On going to that plot Makbul Ahmed instructed his labourers to transplant seedlings there and returned to plot No. 4476. As the work was proceeding, at about 2 p.m. the labourers completed almost three quarters of the transplanta tion in plot No. 2545.

5. At this juncture the appellants along with large number of other persons came to the said plot No. 2545, armed with deadly weapons. They formed themselves into an unlawful assembly in order to dispossess Makbul Ahmed and his co -sharers. One Aftabuddin, Abdul Malek and Fazle Karim (all of whom were co‑accused with the appellant) passed orders to catch hold of the labourers of Makbul Ahmed and to beat them. Some of the labourers fled away to the neighbouring land of Abdul Latif Paraji lying to the north of plot No. 2545. In the meantime these persons surrounded the deceased Abdul Gafur Rari and few other labourers of Makbul Ahmed. Fazle Karim Sikder, Aftabuddin Bagha and Abdul Malek belonging to the party of the accused persons passed orders that the labourers of Makbul Ahmed should be killed. Upon this appellant Sahed Ali wounded Abdul Gafur Rari with a leja on the chest and appellant Kader Majhi wounded P. W. 2 Arab Ali. Various other persons of the party of the accused wounded some other labourers of Makbul Ahmed. Abdul Gafur Rari fell down as soon as he received a wound in his chest. Makbul Ahmed went near him and gave water to him but Abdul Gafur Rari could not take it and died immediately thereafter. Makbul Ahmed started for the thana with the dead body along with other injured persons. After he had proceeded to some distance he was re sisted by the accused persons who wanted to snatch away the dead body. He, therefore, returned home and informed Kadam Ali Howladar, President, Union Board, who has been examined as P. W.

17. The President Union Board, deputed P. W. 9 Jabbar Dafadar and P. W. 10 Nazar Ali Choukidar to guard the dead body of Abdul Gafur Rari in the house of Makbul Ahmed. On the following morning at dawn Makbul Ahmed started for the thana leaving the dead body in charge of the Dafadar and the Choukidar. He reached Hizla Police Station at 8‑30 a. m. and lodged a first information report there. A police officer came to the place of occurrence and forwarded the dead body for post mortem examination after holding an inquest. He seized certain Alamats including some blood‑stained earth and a quantity of blood‑stained grass from the place of occurrence. After com pletion of investigation in this case, the appellants along with 12 other persons were committed to the Court of Sessions on various charges, the appellants being charged as stated above.

6. It appears that the Assessors were unanimous with regard to the guilt of appellant Sahed Ali. One of them was of opinion that he was guilty under section 304 (Part 1) but the other two gave the opinion that this appellant was guilty under section 302 of the Code. They were, however, unanimously of opinion that appellant Kader Majhi was guilty under section 324 of the Code.

7. The learned Additional Sessions Judge, who tried the appellants as well as the co‑accused, also tried a counter case in which Fazle Karim Sikdar (one of the accused in this case) was the complainant. Thus the same occurrence led to two different cases, some of the accused in the one case being witnesses in the other case.

8. The learned Additional Sessions Judge, on a discussion of the evidence in this case, came to the conclusion that appel lant Sahed Ali was guilty under the second part of section 304 of the Code and sentenced him to suffer rigorous imprisonment for five years. He also found that appellant Kader Majhi was guilty under section 324 of the Code and sentenced him to suffer rigorous imprisonment for two years.

9. This appeal is directed against the conviction of the appellants and the sentences imposed on them, as stated above. Along with this appeal we also heard a rule issued by this Court against the order of acquittal of certain accused persons in the counter case. We will, however, deliver a separate judgment in respect of the same.

10. At the hearing of this appeal Mr. A. Salam Khan appeared for the appellants and has taken us through the evidence in this case as well the judgment pronounced by the learned Additional Sessions Judge. Mr. Salam Khan has argued that the prosecution case has not been established by independent and credible evidence. He has argued that most of the witnesses for the prosecution are interested in the sense that they are labourers of the complainant P. W. 1 Makbul Ahmed. Some of these labourers happened to be the accused in the counter case instituted by Fazle Karim Sikder. He has also submitted that an adverse inference should be drawn against the prosecution for non‑examination of certain independent witnesses. Finally the learned Advocate for the appellants has argued that, since the learned Additional Sessions Judge did not wholly accept the evidence with regard to the alleged possession of the disputed plots by P., W. 1 Makbul Ahmed and his co‑sharers, the learned Additional Sessions Judge should have acquitted all the accused including the appellants.

11. In the present case we find that the prosecution witnesses Nos. 1 to 7 proved the possession of P. W. 1 Makbul Ahmed in respect of the plots in question. With regard to these witnesses the criticism has been that they are not disinterested witnesses as P. Ws. 2 to 7 are labourers of P. W. 1 Makbul Ahmed. Moreover they are accused in the counter case instituted by Fazle Karim Sikdar. P. W. 6 Abdul Rashid Jamaddar is not a labourer of P. W. 1 but he happens to be an accused in the counter case. We do not see any good reason why his evidence should not be accepted by us. He could not be shaken in the cross‑examination to which he was subjected. Moreover, P. W. 8 Asmat Ali is certainly an independent witness. He is a Bargadar of a neighbouring plot of land and is also neither labourer of P. W. 1 nor an accused in the counter case. Moreover P. W. 1 1bdu1 Latif Faraji is a respectable and independent witness who owns the contiguous plot of land. Therefore there is no reason why we should not accept the evidence of the prosecution witnesses as to the possession of P. W. 1 in respect of the said plots of land when such evidence is corroborated by the evidence of P. Ws. 6, 8 & 11, namely, Abdul Rashid Jamaddar, Asmat Ali and Abdul Latif Faraji, respectively. Moreover P. W. 21 Nazir Ahmed is a Tahsildar of Ulania Estate and P. W. 22 Md. Abdus Sattar is a Tahsildar of the Government Acquired Estate. P. W. 21 Nazir Ahmed has proved the Talobbaki account for the year 1361 B. S. which was filed on behalf of the Ulania Estate as the office of the Government Acquired Estate. This document has been marked as Exh. C. P. W.

21. Nazir Ahmed has also proved certain rent receipts which have been marked as Exhs. 6 to 6 (1). Similarly P. W. 22 Md. Abdus Sattar has also proved that Exh. 5 as stated above was filed in the office of the Government Acquired Estate. He has also proved the rent receipt, which has been marked as Exh. C and which was granted by the Government Acquired Estate. The evidence of P. W. 21 Nazir Ahmed and P. W. 22 Md. Abdus Sattar, in our opinion, clinches the matter and establishes the possession of P. W. 1 Makbul Ahmed in the disputed plot of land. The learned Additional Sessions Judge did not properly grasp this question and has recorded a faulty finding on this account. The evidence of P. Ws. 1 and 7, namely, Makbul Ahmed and Panchkari respectively with regard to the occurrence finds material corroboration from the evidence of P. W. 6 Abdul Rashid Jamadar, P. W. 8 Asmat Ali and P. W. 11 Abdul Latif Faraji. 'There is no reason why the prosecution witnesses in this case should not be believed. With regard to the infliction of an injury on the chest of Abdul Gafur Rari by the appellant Sahed Ali P. Ws. 1 to 7, namely, Makbul Ahmed, Arab Alia Fazil Munshi, Serajul Huq Sufiar Rahman, Abdul Rashid Jamaddar and Panchkari gave direct evidence on the matter and such evidence is further corroborated on a material particular by the evidence of P W. 12 Doctor Noor Muhammad. With regard to the infliction of the injury on P. W. 2 Arab Ali, the evidence not only comes from him but from P. Ws. 1, 3 to 7, namely, Makbul Ahmed, Fazil Munshi, Serajul Huq, Sufiar Rahman, Abdul Rashid Jamaddar and Panchkari. In this case also the evidence of the aforesaid prosecution witnesses finds support from the evidence of P. W. 19 Doctor Shamsul Islam Bhuiyan. We have already found that the plots in question were possessed by P. W. 1 Makbul Ahmed and his co‑sharers. We have, therefore, no hesitation in accepting the prosecution of this case, namely, that the appellants and the accused persons were the aggressors. In these circumstances there is no reason why the evidence of the prosecution witnesses should not be accepted. We, therefore, hold that both the appellants were rightly convicted by the learned Additional Sessions Judge and the sentence passed on them is by no means severe. We, however, feel that the evidence in this case was sufficient to sustain conviction of the rest of the co- accused of the appellants under section 148 of the Code. We, however, think that at this stage it would not be necessary to direct a retrial of the said accused persons. We did not issue any rule to the effect and it is rather too late in the day to take recourse to such a step. The result, therefore, is that this appeal is dismissed.

12. Before parting with this case we would like to observe that the learned Additional Sessions Judge felt that he was free to import the evidence in the counter case into the trial of the present ease. There is no doubt that he was under such a misapprehen sion although we find that in this case he merely used the evidence in the counter case to state what the defence is. It appears from the records of this case that the defence contented itself by merely challenging the possession of P. W. 1 Makbul Ahmed with respect to the said plot of land. There is also some suggestion that Fazle Karim Sikdar had title and possession in the said land. It was not suggested on behalf of the defence to any of the prosecution witnesses that the complainant and his men had trespassed into the aforesaid plots which were owned and pos sessed by the said Fazle Karim Sikdar. The defence is to be gathered from the suggestions made to the prosecution witnesses in their cross‑examination on behalf of the accused or from the statements made by the accused in their examination under section 342 of the Code of Criminal Procedure. The learned Additional Sessions Judge was not right when be stated the defence case as argued by the defence lawyer and not from the record of this case. In doing so, the defence lawyer borrowed light from the record of the other case and not from the evidence of this case.

13. We would also like to point out that whenever there is a case and a counter case in respect to the same occurrence, it is desirable that they should be tried simultaneously by the same learned Judge; yet the records of each case should be kept distinct and separate. The evidence or record of one case cannot be used in connection with the other case. Each case must be decided on its own evidence and record. The advantage of a simultaneous trial is that it gives the trying Judge a whole picture which will help him to appreciate properly the evidence in each case; but it does not enable him to use the records of one case for the purpose of disposing of the other case.

14. In this connection we would like to quote the observa tions of a Division Bench of the Bombay High Court which is in consonance with similar decisions of various High Courts in cluding the Lahore High Court. We are referring to the case of Banappa Kallappa Ajawan and others v. Emperor (A I R 1944 Bom. 146 (147)) it has been observed as follows: ‑ "The question of the proper procedure to be followed in such cases, where rival factions which have taken part in a riot are both prosecuted is one of considerable importance. The two factions must obviously be prosecuted separately, since the common intention of each of the two parties to the riot would be different and they could not be tried in a single case. There is of course no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, 6 but such a procedure is always open to the risk of the two Courts coming to conflicting findings, and occasionally, as in the present case, it may result, in very serious injustice, one side or the other being wrongly convicted. In our opinion the most desirable procedure in such cases would seem to be that both the cases should be tried by the same Judge though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should postpone judg ment in that case till he has heard the second case to a con clusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed to the other case. It would be obviously necessary that he should try the two cases in quick succession one after the other. It may be that in some particular case he might feel some difficulty about trying both cases and in such a case it would always be open to him to get the second "case transferred". "No hard and fast rule can be laid down, and we do not suggest that the procedure which we have recommended above should be invariably followed in the trial of counter cases arising out of one and same riot. But normally, we think that that procedure is the one least open to objection. The view which we have taken on this point is in accord with the view which was taken by the Madras High Court in Krishna Pannadi v. Emperor A I R 1930 Mad.

190. It was observed in that case that cases and counter cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished. The same view was taken by another Judge of the Madras High Court in Lakshminarayana v. Suryanarayana A I R 1932 Mad.

502. A similar view was also taken by the Lahore High Court in Ujagar Singh v. Emperor A I R 1936 Lah. 356." The learned Additional Sessions Judge and the Courts below should do well to remember the observations quoted above. We would only reiterate that the sole object of a simultaneous trial of such cases is to give the trial Judge a complete picture of the whole situation with a view to help him in a proper assessment and appreciation of the evidence in each case, which must be decided on its separate evidence and record without any importa tion of the evidence of the other case. Rule made absolute.