P L D 1957 Dacca 334 (PLP)

RAHMAN J.‑

This Reference No. 8 of 1955, is under section 374 of the Code of Criminal Procedure by the 2nd Additional Sessions Judge, Bakarganj, for the confirmation of the sentence of death passed upon one Darog Ali on the 12th July 1955. The said Darog Ali, as also one Maqbul Ahmed and one Amir Ali, were all convicted under section 302/34 of the P. P. C. for the murder of Noor Muhammad, an Ansar Commander of Char Umed, Police Station Lalmohan, District Barisal; but whilst Darog Ali alone was sentenced to death the other two were sentenced to transportation for life. All the three have also preferred an appeal being Appeal No. 345 of 1955 against their con viction and sentence, which has been heard together with this Reference, and this judgment will dispose of both the Reference and the connected appeal. The prosecution case against the condemned prisoner and the accused appellants, as may be gathered from the judgment of the learned Additional Sessions Judge, was to the following effect: The deceased Noor Muhammad used to live with his second wife, Noor Banu (P. W. 4) and two children in the west bhiti but of the new Bari of his father Haji Muhammad Aslam. The east bhiti but of this Bari was occupied by his Brother Muhammad Moslem (P. W. 5), and his father Muhammad Aslam lived with another son, the complainant, Nasir Ahmed (P. W. 2) in the old Bari which is contiguous to and on the east of the new Bari. On the night of the 3rd November 1954, the said Nasit Ahmed was crushing sugarcane at the entrance of the old Bari with one Shamsul Huq and Delwar Hossain (P. W. 6) when at about 1 or 1‑30 a.m. they heard the barking of doga in the house of the deceased, and Nasir Ahmed went there with his torch. Through the openings in the split bamboo fencing of the deceased's but he saw torchlight inside the hut. He called out from outside to his brother, but immediately the torchlight inside was extinguished. At this Nasir at once drew aside the jhap door of the but and focused his torchlight inside, and to his horror saw the condemned prisoner Darog Ali sitting on the breast of Noor Muhammad cutting his neck with a Cheni Dao (tree‑tapping dao) whilst accused Maqbul was pressing the head and mouth of the deceased, and accused Amir Ali was pressing down his legs. Nasir Ahmed, seeing this, shrieked out at which Noor Banu, the wife of the deceased, who was also sleeping on the same hogla bed with the children between her and the deceased, also cried out aloud. The accused then fled away by the eastern door of the cook shed which is attached to the south of the but and escaped towards the south. Nasir Ahmed came out of the but and raised a hue and cry at which Muhammad Moslem, the brother living in the east bhiti but (P. W. 5), Shamsul Huq and Delwar Hossain (P. W. 6) came to the spot immediately, and saw three persons with bare bodies and tucked up lungis running away towards the south. They found Noor Muhammad dead with his throat cut and several other injuries, and to them Nasir Ahmed and Noor Banu spoke of their recognition of the assailants. Attracted by the hue and cry others also came there amongst whom were Sharaft Ali (P. W. 7), Jebal Haque (P. W. 8), and Malik Mia (P. W. 9). They also saw Noor Muhammad lying dead with his neck cut, and heard from Nasir and Noor Banu that the appellants had murdered him. The said three had also seen the appellants running away, and had recognised them on their way to the place of occurrence and so they informed Noor Banu (P. W. 4). Nasir Ahmed (P. W. 2) thereafter went to the Police Station, five miles away, and lodged the First Information Report at 6‑10 a.m. on the same day. As against this the defence of the accused appellants was that they had been falsely implicated due to enmity over possession of lands and other matters. Accused Darog Ali and Amir Ali suggested enmity with the complainant Nasir Ahmed and his father over lands, but accused Maqbul Ahmed suggested that because deceased Noor Muhammad had married his sister against the wishes of his father and brothers, and because the deceased had not, in spite of their requests, divorced her; who was his third wife; they had falsely im plicated this accused out of grudge. The trial of the accused appellants was held with the aid of four assessors who have unanimously found all the three guilty of the offence under section 302/34 of the P. P. C. At the trial the condemned prisoner Darog Ali was defended by a lawyer appointed by the Crown, but the other two were defended by a Pleader appointed by them. The prosecution sought to establish its case by the oral testimony of ten witnesses of whom P. W. 1 is the Doctor who carried out the post‑mortem examination of the deceased, P. W. 3 is the Constable who escorted the dead body to the Bhola morgue, and identified it before the Doctor, and P. W. 10 is the Investigating Officer in this case. P. Ws. 2 and 4 to 9 are the witnesses of the occurrence and recognition of the accused. Of these only P. Ws. 2 and 4 claimed to be eye‑witnesses of the murder, but unfortunately as there was no mention in the First Information Report of the fact of P. W. 4 having recognised the accused persons, and as P. W. 4 did not in her statement, reduced into writing by the Inves tigating Officer, state that she saw the accused Darog Ali cutting the neck of the deceased, the learned Additional Sessions Judge did not consider her evidence reliable. Relying, however, on the evidence of P. W. 2 and considering it to be sufficiently corroborated by that of P. Ws. 7, 8 and 9 as also by that of P. Ws. 5 and 6, the learned Judge came to the finding that the guilt of the accused had been estab lished beyond reasonable doubt. Mr. B. N. Chowdhury, the learned Advocate, appearing on behalf of the accused appellant, has strenuously urged before us several grounds stressing upon the inherent im probability of the prosecution story, absence of any reliable evidence of recognition, inadequacy of the motive alleged, interest of witnesses and the non‑examination of material witnesses. In addition to these he has also made a serious charge that the accused persons had been denied a fair trial, and had been gravely prejudiced in their defence by reasons of the non‑availability of the copies of the statements; of most of the witnesses, including P. W. 2 recorded by the In vestigating Officer during investigation. In view of the order wee propose to make to this case; for the reasons to be recorded hereafter, we consider it neither necessary nor desirable t to enter into the merits of the arguments advanced by the learned Advocate upon all but one of the points canvassed by him. The above excepted point relates to the allegation concerning the non‑availability of the statements of the witnesses recorded by the Investigating Officer at the time of the cross‑examination of the prosecution witnesses. In the grounds of appeal submitted to this Court by the accused appellants from Jaail it was stated that it was only whilst the Investigating Officer, who was called by the prosecution last, was being cross‑examined by the "Crown defence lawyer" that it was found that the Inves tigating Officer had not the original diary with him, but was answering the questions; by referring to some certified copies supplied to him by the complainant party. On objection being taken to this the learned Public Prosecutor put in a petition on the 7t1h July 1955, stating: "That the case diary of the above cases is not found along with the diary sent to me. This being a straight murder case unless the diary is produced the defence may be prejudiced." On this the trial was adjourned, and the cross‑examination of Investigating Officer was resumed on the 9th July 1955, after the diary had been brought the accused appellants, however, complained that even so, contradictions of some of the witnesses, namely, P. W. 2 Nasir and P. W. 5 Moslem, re mained unasked, and that, as such, the case of the accused had gone by default, and if the contradictions could have been brought on the record the fate of the accused might well have been otherwise. It further appears from the order‑sheet of the Sessions Court that P. W. 2 Nasir, the informant in this case, had been examined, cross‑examined and then discharged on the 5th July 1955, and P. W. 5 Moslem had been discharged after his examination and cross‑examination on the 6th July 1955: Furthermore, that on the 7th July 1955, the Court allowed the prayer for adjournment on the following ground: It appears that the remaining part of the diary has been kept in the Bhola Court. Without that part of the diary no cross‑examination by the defence lawyers as to contradiction is possible." It does not, however, appear from the order- sheet if the defence made Any application for recalling the said P. Ws. 2 and 5 for further cross‑examination after the diary had been brought ; but on referring to the depositions of P. W. 2 Nasir and P. W. 10 the Investigating Officer, we do not find that any question was put either to P. W. 2, to elicit if he had stated any particular fact to the Inves tigating Officer, or to P. W. 10, to find out what the said witness had in fact stated before him ; although questions about the statements of the Other witnesses were put to those witnesses as well as to the Investigating Officer. From this the learned Deputy Legal Remembrancer has argued that the defence must have had some sort of copies of these statements from which they got the materials for the cross‑examination of these witnesses, and as such, there was no question of their being prejudiced. In any event the original diary was produced before the close of the prosecu tion case, and if the defence lawyers so desired they could have recalled any witness. It will be evident from what has been stated above that copies of the statements could not have been made available to the defence lawyers at the time of the cross‑examination of the prosecution witnesses other than P. W. 10, for, as stated in the order‑sheet, the diary was not either with the learned Public Prosecutor or the Police, for it was even then lying in the Bhola Court from where it was brought only on the 9th July 1955. Again the fact that the learned Public Prosecutor in his petition to the Court below admitted that if the diary is not produced the defence, might be prejudiced, negatives the possibility of the defence having any kind of copies, for, had they such copies the learned Public Prosecutor would not have conceded that there could be any question of prejudice. As regards the contention that the witnesses could have been recalled, we have to point out that the right given by section 162 of the Code of Criminal Procedure is to request the Court to refer to the diary, and direct the furnishing of the copy thereof when the witness is called for the pro secution, and not after he has been examined, cross‑examined and discharged. Strictly speaking, the accused has no right as such, to recall and further examine a witness who is not in attendance save as provided in section 231 of the Code of Criminal Procedure, and, therefore, it cannot be said that by not doing so after the diary had been brought, the accused appellants had indicated that they had no further questions to ask. In the present case it has also to be remembered that P. W. 2 was the informant, and the fact that he had been further examined and made a statement to the Investigating Officer could not possibly have been known to the defence lawyers or the accused appellants until they had the copies of the diary, but by then P. W. 2 had already been discharged after his examination and cross‑examination. It is thus clear from what has been stated above that there was a breach of the mandatory provisions of the proviso to section 162 of the Code of Criminal Procedure, and the B statements of the prosecution witnesses were not made available at the time they should have been, namely, when the witnesses were called by the prosecution. This by itself, the learned Deputy Legal Remembrancer contends, is not sufficient, for according to him, this is a mere irregularity and unless an accused have in fact been pre judiced such irregularity is curable under section 537 of the Code of Criminal Procedure. The law on this subject is now well settled by the decision of their Lordships of the Judicial Committee in the case of Pulukuri Kottaya v. The King‑Emperor (51 C W N 474), where their Lordships have held that if~ "the statements were never made available to the accused,) an inference, which is almost irresistible, arises of prejudice to the accused," but where the statements "were made available though too late to be effective and their contents are known," the question has to be determined‑ as to whether prejudice has thereby been occasioned; if not, the irregu larity is curable under section 537 of the Code of Criminal Procedure. In the case before their Lordships the Circle Inspector had re‑examined the witnesses, and the notes of his re examination had been made available to the accused at the earliest opportunity, but the note‑book of the Sub‑Inspector of Police wherein had been recorded the statements of some of the witnesses was not made available until, as in the case before us, the principal prosecution witnesses had been dis charged, and it was actually found that there were no discre pancies of a vital nature in the two records. It was in these peculiar circumstances that their Lordships held that the trial had not been vitiated in spite of the breach of section

162. In the present case, however, we have carefully examined the Police diary, and we do find that there are several dis crepancies between what is stated therein and the evidence of P. W. 2 given in the trial Court. Not all of these dis crepancies are of a vital natures but some certainly are. The fact that the accused Maqbul was also pressing the mouth of the deceased is not mentioned in the diary. Again it is stated in the diary that P. W. 2 not only heard the dogs bark, but also saw the beams of the torchlight coming from inside the but from the place where sugarcane was being crushed, although in his evidence he states that he went to the but of the deceased on hearing the dogs bark. Further more it is recorded in the diary that P. W. 2 stated that P. W. 6 Delwar only heard footsteps of persons running away whereas in Court this witness stated that he saw three persons with bare bodies and tucked up lungis running away. P. W. 2 also stated before the Investigating Officer that the father of the deceased and another brother Aslam also came to the place immediately after the raised the hue and cry, but in Court he only spoke of P. W. 4 Moslem coming out. Again whilst in the diary it is stated that three children of the deceased were sleeping with him on the bed, in the evidence in Court only two children are mentioned. The learned Deputy Legal Remembrancer argues that so far as P. W. is concerned he was the informant, and the First Information Report lodged by him was made available to the accused, and some of the discrepancies, to which we have referred earlier, were to be found in that also, and as such, the accused could have cross‑examined on those materials. There are, however, discrepancies even between the statements recorded in the diary and the First Information Report, and, therefore, it cannot be said that no prejudice was occasioned to the accused persons by the failure on the part of the prosecution to produce the diary in the proper time. As to the argument that the discrepancies are in any event only minor discrepancies, we can do no better than quote here an observation of Sir John Beaumont from the said case of Pulukuri Kottaya, which is as follows: "The right given to an accused person by this section is a very valuable one and often provides important material for cross‑examination of the prosecution witnesses. However, slender the material for cross‑examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence ; and in the present case it has to be remembered that the accused's contention was that the prosecution witnesses were false witnesses." Consequently, if prejudice has in fact been occasioned by reason of the non‑availability of the statements which in fact contain discrepancies and the contents whereof were not known to the accused before, then, however, slender or slight the discrepancy, it is difficult to say what effect it would have produced on the witness. In the facts and cir cumstances of the present case, therefore, we are satisfied that the accused appellants were seriously prejudiced by the state ments not being made available to them in proper time, and as such, the irregularity in the present case cannot be cured under section 537 of the Code of Criminal Procedure. Having come to this conclusion we have now to decide as to what is the course that we should adopt. Should we, because of the fact that the principal prosecution witness could not be cross‑examined due to the non‑availability of the state ment of the said witness recorded by the Investigating Officer altogether exclude the evidence of this witness as inadmissible, and either acquit or convict the accused upon the other evidence in the case according as the same is found to be sufficient or insufficient to warrant such conviction. The only other alternative is to set aside the conviction and sentence and remand the case for retrial. As for the former course we have to take note that the decision of the Privy Council in 51 C W N 474 not only does not support the adoption of such a course but seems rather to exclude it, for, the question of such evidence being treated as inadmissible was not even considered by their Lordships. On the other hand, what their Lordships did con sider was as to whether the trial had been vitiated by reason of it not being conducted in the manner prescribed by the Code of Criminal Procedure. Now, as regards the latter course, we are not unmindful of the fact that retrial of accused persons should not be lightly directed particularly if already a long time has elapsed since the first trial or the evidence is of such a nature that even on a retrial there can be no possibility of the accused persons being convicted. Again the question of prolonged harass ment of the accused persons must also be taken into serious consideration. The learned Deputy Legal Remembrancer has urged that the proper course to adopt would, in the present case, be to treat the discrepancies as unexplained and after excluding them to take into consideration the rest of the evidence, and if the same be found sufficient then the conviction should be maintained. The obvious objection to this, as stated in the case of Emperor v. Hari (A I R 1935 Sind 145), is that: "It would be tantamount to depriving the accused of the right of probing by cross‑examination into any contradiction or of depriving the prosecution of explaining any such con tradiction." Furthermore, if as Sir John Beaumont observed in the case of Pulukuri Kottaya that "it is difficult to gauge" the possible effect of cross‑examination based on materials however, slender, found in the statements which may well be different on different types of witnesses then it is difficult to appreciate how justice can be done by depriving the accused of such a valuable right. In the present case the trial in the Sessions Court con cluded only on the 12th July 1955, and the evidence on record is not such that we can be reasonably satisfied that the prosecution must in any event fail. Having regard, therefore, to the gravity of the offence charged the ends of justice demand that the utmost fairness should be shown to the accused persons, and as such, we are convinced that in the peculiar circumstances of this case the ends of justice will be best served by ordering the retrial of the accused appel lants, and that will be the only proper course to adopt. Before parting with this case, we feel that we must refer to one other matter which has been brought to our notice. It appears that in this case the learned Additional Sessions Judge has also committed the grave error of eliciting by his own questions evidence of the previous conviction of the condemned prisoner Darog Ali in clear contravention of the provisions of sections 310 and 311 of the Code of Criminal Procedure. The evidence to which we allude was elicited, before the assessors gave their opinion, from the Investigat ing. Officer at the close of his cross‑examination and has been recorded thus: "To Court In the charge‑sheet against Darog Ali the letters G. M. appear. G.M means gang member. The accused Darog Ali has got previous conviction, but I have not shown it intentionally as in this case it is not necessary. But I have shown no 'P.C.' as against the other two accused did not consult the conviction register." In the present case this evidence was neither relevant nor admissible, and there can be no excuse for this serious irregularity when we find that a little earlier during the cross‑examination of the same witness a reference to the accused Darog Ali's previous conviction was not admitted in evidence. In view, however, of the fact that we have already decided to send this case back for retrial on another ground, we do not consider it necessary to go into the question whether this latter irregularity has also prejudiced the said accused Darog Ali or not except to point out that the accused appellants could, in the present case, have also legitimately urged that they did not get affair trial on this ground also. In the result, therefore, the appeal is allowed, the Re ference is rejected, the conviction and sentence of the accused appellants and the condemned prisoner are set aside, and we direct that they be retried on the same charges by a competent Court in the same District, but not a Court presided over by the same learned Additional Sessions Judge who tried this case. We further direct that the trial should be held as soon as possible after the receipt of the records, which should be sent down immediately. Until the disposal of the case upon retrial the accused appellants will continue to remain in custody. MURSHED, J.‑

I agree. K. B. A. Retrial directed.