P L D 1955 Dacca 4 (PLP)

ELLIS, J.--‑Reference No. 8 of 1952 is a reference under section 374 of the Code of Criminal Procedure by Mr. A. A. Khan, Additional Sessions Judge, Bakarganj, for confirmation of the sentence of death passed by him on one Abdul Kuddus on the. 14th of June, 1952. Criminal Appeal No. 350 of 1952 is the appeal of the condemned prisoner, Abdul Kuddus and one of his co‑accused Abdul Kader. Both of them were convicted under sections 302/120B of the Pakistan Penal Code and while Abdul Kuddus was sentenced to death, Abdul Kader was sentenced to transportation for life. The reference and the appeal have been heard together and are now disposed of under this one judgment. The case arises out of an occurrence which took place at about 12‑30 a.m. on the 3rd of June, 1951, at a village Boromachna, 5 miles west of the Mathbaria Police Station in the District of Bakarganj. In the course of that occurrence, two persons were killed, Rajaullah, an elderly man of 60, and his son Abdur Rahman Howladar, a young man of

25. In respect of the occurrence, an information was lodged at the Police Station at 9‑30 a.m. on the,3rd of June, 1951, by the condemned prisoner. Abdul Kuddus. As informant he appeared before the Police Officer and lodged an information that on the previous night there had been a dacoity in the house of his father Rajaullah and, in the course of that dacoity, his father Rajaullah and his brother Abdur Rahman Howladar had both been killed. On receipt of the information, the Police began an investigation and were, first of all, struck by the significant fact that the supposed dacoity in the house of Rajaullah did not appear to have touched the house in which Abdul Kuddus and his wife Amina Khatoon were spending the night. Amina Khatoon was left in possession of her ornaments and the sum total of the property which was said to have been stolen during the commission of the dacoity, was such as to arouse suspicion. It is unusual in a dacoity for two persons, for the householder and his son, both to have their throats cut in the manner in which Rajaullah and Abdur Rahman Howladar were both killed. With this suspicion in his mind the Investigating Officer tackled Amina Khatoon, the young wife of the condemned prisoner Abdul Kuddus, and obtained a statement from her, as a result of which he sent her before a Magistrate in order that her statement under section 164 of the Code of Criminal Procedure might be properly recorded. Thereafter Police investigation followed its normal course, with the result that the two appellants and nine other accused appeared in the dock before Mr. A. A. Khan to answer various charges. As a result of the trial, they were all acquitted with the exception of the present appellants. The case presents certain difficulties. As we have already mentioned, there were several charges in the case. The two appellants and their nine co‑accused were charged under section 396 of the Pakistan Penal Code with committing dacoity on the night of the 3rd of June, 1951, in the house of Rajaullah and it was further charged against them that during the commission of the dacoity Rajaullah and Abdur Rahman were murdered by one of their number. Alter natively the same eleven accused were charged under sections 302/120B of the Penal Code for agreeing to do or cause to be done any illegal act, to wit, the murder of Rajaullah and Abdur Rahman, in consequence of which agreement both Rajaullah and Abdur Rahman actually were killed. In addition, there were three other charges under section 412 of the Pakistan Penal Code against three of the co‑accused, Moin‑ud-din, Kadamali and Abdul Rashid, respectively. \ The first point that is taken in support of the appeal is that the trial has been vitiated by the misjoinder of the charges and misjoinder of persons in the two charges under sections 396 and 302/120B of the Pakistan Penal Code. The learned Deputy Legal Remembrancer when asked what the prosecution case was with regard to the eleven persons who were sent up for trial before the learned Additional Sessions judge, at first, stated that the prosecution case was that some of them went to the house of Rajaullah on the night of the 3rd of June, 1951, to commit murder while others of them went to commit dacoity. Being asked how they could all be joined together in one charge either under section 396 or under section 302/120B, the learned Deputy Legal Remem brances sought refuge under section 239(d) of the Code of Criminal Procedure and claimed that they were persons accused of different offences committed in the course of the same transaction and, therefore, could be joined together in one charge. This argument completely ignores the scope of section 239(d). That section deals with persons accused of different offences committed in the course of the same transaction but the charge under section 396 deals with persons accused of the same offence. So, obviously section 239(d) cannot possibly help the learned Deputy Legal Remembrancer even accepting his argument that the same transaction might be very liberally construed to cover the whole events on the night of the 3rd of June, 1951. If then the prosecution case is that certain of the accused went to the house of Rajaullah to commit murder while others of the accused went to commit dacoity, clearly they could not all be joined together in one charge either under section 396 or 302/120B and there ought to have been separate charges in this event. Faced with this difficulty, the learned Deputy Legal Remembrancer then shifted his ground and stated that the prosecution case was that they all went to commit dacoity in the house of Rajaullah on the night of the 3rd of June, 1951, and, therefore, the charge under section 396 of the Code can be maintained. This, of course, was the view which was taken by the Police when they submitted a charge‑sheet against all the accused, because they submitted a charge‑sheet under section 396 and not under section 120B of the Code. But if it be accepted that the prosecution case was that the accused persons went to Rajaullah's house with the intention of dacoity, then there is no explanation of the alternative charge under section 302/120B which charged them with going to the house of Rajaullah not for the purpose of commit ting dacoity but for the purpose of committing murder. Therefore, the appellants can rightly claim that they have been prejudiced by the introduction of the charge under section 302/120B as an alternative charge to the substantive one‑under section 396 of the Code. In this dilemma the learned Deputy Legal Remembrancer falls back on section 236 of the Code of Criminal Procedure as justifying the alternative charge. Section 236, however, will not help him at all. That section says : "If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once ; or he may be charged in the alternative with having committed some one of the said offences." But a scrutiny of the charges under section 396 and 302/120B shows that all the accused have been charged with both offences which clearly takes the matter out of the scope of section 236 of the Code of Criminal Procedure. The learned Deputy Legal Remembrancer at one stage of his argument was inclined to justify the alternative charge by the result of the trial in the conviction of the two appellants under section 302/120B and had to be reminded of the case of Babulal Choukhani v. Emperor (42 C W N 621), which clearly demonstrated that such an argument was impossible. In our opinion, there can be no doubt that there was in this case a bad misjoinder of charges and it is im possible to say that the accused were not prejudiced by such misjoinder. The second substantial ground, taken in support of the appeal, touches the evidence of the previous incident which is said to have taken place 6 or 7 years ago when the condemned prisoner Abdul Kuddus is said to have made a previous attempt to poison his father. This was commented on by the learned Additional Sessions judge in his judgment in the following words : "Rajaullah had 3 sons late Habibur Rahman, the deceased Abdur Rahman and accused Abdul Kuddus. It is admitted that Habibur Rahman died of poisoning abour 5/6 years ago. The story behind this poisoning is another controversial matter in this case but I think it need not be taken too far at least in the interest of the accused. The prosecution wanted to suggest that it was the accused Abdul Kuddus who while serving meal to his father and the said brother mixed up poison. The father luckily survived but the son succumbed. The defence on the other hand submitted with equal force that it was quite absurd for Kuddus to make an, attempt on the lives of his father and brother." It was added in parenthesis that he was then a boy of 12 or 13 years of age which, on other materials on record, is somewhat a generous under‑estimate of his age. He appears to have been really about 18 or 19 at the time of the previous incident. There was, however, in our opinion, no justification at all for bringing in this previous incident when the brother Habibur Rahman died, and the learned Additional Sessions Judge should have strictly ruled it out of consideration and have refused to record any evidence what soever on the point. The third substantial ground, which has been taken before us with regard to the trial, touches section 342 of the Code of Criminal Procedure. In the present case, the appellant Abdul Kader made a confession and use of that confession has been made in the trial. In these circumstances, it was rightly claimed that the learned Additional Sessions judge ought to have borne in mind the observations of Their Lordships of the Federal Court of Pakistan in the case of Aminul Rogue v. The Crown (P L R 1 Dacca 863 = P L D 1952 F C 63), when thay stated that if a point arose in the evidence against the accused which the Court considered vital, it was the duty of the judge to call the attention of the accused to the point and to ask for an explanation thereof. In the present case, the fact that Abdul Kader did make a confession was one on which the learned Additional Sessions judge placed great reliance. At the same time when he examined Abdul Kader under the provisions of section 342, lie contented himself by merely asking what was his defence and when he replied that he was innocent, he merely asked if he would adduce any evidence in defence and obtained the answer, "no". Another point was taken that the learned Additional Sessions judge made an improper use of the confession of Abdul Kader in considering it in the case against Abdul Kuddus. As, in our opinion, we have no alternative but to direct a retrial, we do not propose to comment any further on the merits of the case. In the result, the reference under section 374 of the Code of Criminal Procedure is rejected. The appeals of Abdul Kuddus and Abdul Kader are both allowed and their con victions and sentences are set aside and we direct that Abdul Kuddus and Abdul Kader only be retried on a straight charge under section 302/120B of the Pakistan Penal Code for agreeing to or causing to be done an illegal act, the murder of Rajaullah and Abdur Rahman Howladar which act was committed in pursuance of their agreement. Both Abdul Kuddus and Abdul Kader will remain in jail until their retrial is over. ISPAHANI, J.‑I agree. A. H. Reference rejected.