P L D 1960 Dacca 1019 (PLP)

ISPAHANI, C. J.‑This is an appeal by the accused persons and one other who were tried by the learned Additional Sessions Judge, Khulna and three assessors. The learned Judge convicted Tafsir and Bisha under section 324 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for 21 years and to pay fine of Rs. 500 in default rigorous imprisonment for six months more. He convicted the appellant Abdus Sobhan, Siku and Sikmat ullah and Rustam Sk. and Rustamali under section 147 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for 18 (eighteen) months each. He also convicted them under section 323 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for six months each. The sentences were ordered to run concurrently. He convicted appellant Jitu Sk. Mahbul and Mahabur Rahman and Habib and Habibur Rahman under section 147 of the Pakistan Penal Code and sentenced each of them to rigorous imprisonment for 18 (eighteen) months. It was ordered that the entire fine, if realised, to be made over to P. W. 1 Abdur Rashid by way of compensation on the life of his father Akijuddin.

2. The prosecution case briefly stated is that there is a tank close to the front of the house of the deceased Akijuddin which is ejmali with the other co‑sharers and on the south‑eastern bank of this tank there are 4 coconut trees, one was in exclusive possession of Akijuddin and the' other three by his co‑sharers. On the 4th Chaitra, 1365B. S. corresponding to 18th March, 1959 at about 12 noon the deceased Akijuddin protested when Felu, a servant of accused Abdus Sobhan, a co‑sharer, went to pluck coconuts from his coconut tree whereupon Abdus Sobhan struck the deceased Akijuddin on his head with a lathi. Akijuddin fell down in the water of the tank and on his 'cries his sons P. W. 1 Abdur Rashid and Halim and his step‑brother‑in‑law. P. W. 2 Golam Mostafa went and picked up deceased Akijuddin from the tank and took hire to the outer compound of his house close to the northern bank of the tank. It is said that at that time the accused persons arrived there variously armed and the accused Tafsir and Bisha struck a dao blow on the head of the deceased Akijuddin causing a bleeding injury when Akijuddin fell down and then accused Abdus Sobhan, Siku and Sikmatullah and Edil and Edris beat Akijuddin with lalthis and then accused Rustam Sk. and Jitu Sk. beat Golam Mustafa with lathis after which they ran away. The injured persons with Akijuddin were then taken to Daulatpur thana and then to Daulatpur Charitable dispensary where their injuries were examined and first aid was given. Akijuddin on the same date lodged a First Information Report to Daulatpur Thana. 13 days thereafter Akijuddin died. The police came and held inquest on the dead body and sent the same to Khulna morgue for postmortem examination and after the investigation police submitted charge‑sheet against the accused and after a preliminary enquiry they were committed to the Court of Sessions to face trial.

3. The defence denied the occurrence to have taken place in the manner, circumstances and at the outer compound of the house of the deceased Akijuddin and contended that the coconut trees were ejmali properties and Akijuddin beat Felu when the latter went to pluck two coconuts on the instruction of Abdus Sobhan from a tree on the south‑eastern bank when there was a maramari in which both parties received injuries and it was not known who beat whom.

4. Mr. A. T. M. Mustafa, the learned counsel has appeared on behalf of the appellants and has attacked the conviction and sentence passed on the appellants on the ground that the learned Judge did not appreciate the evidence in the case and should have found that the manner, place and the circumstances of the case were very different from those deposed to by the witnesses and as such should have held the whole prosecution case to be a result of after‑thought. His contention is that the deceased himself lodged a First Information Report on the same day about 4 hours after the occurrence and what is stated in the First Infor mation Report treated as a dying declaration is very different to the evidence in the case and it should have been held that the case made out in Court is a subsequent improvement and should not be accepted as truthful.

5. In the First Information Report, which is treated as Dying Declaration, it is stated that at about noon that day the step‑brother of' Abdus Sobhan ordered his servant to pluck coconuts from 'his (Akijuddin's) tree. Akijuddin went near the tree to stop him. At that time Sobhan called his younger full brother Tafsir, Mahbub, Habib, Siku, Jitu, Shefotullah and others and said, "finish the Shala". Simultaneously with that the above mentioned 5/6 accused persons in a‑body surrounded him armed with lathis, Cheng (pointed bamboo‑splits) and dagger etc. and at first Siku alias Shekaratullah came and struck him on the head with the lathi that was in his hand and caused a bleeding injury. Just at that time Sobhan and Tafsir struck him on various parts of his body with the lathis that were in their hands and inflicted injuries and caused him to fall down on the ground. At that time his son Abdur Rashid came to the place of occurrence for saving him. And they assaulted him and caused injuries to him. On receipt of information of this disturbance his Shala Golam Mostafa came to his house and asked about the cause of the assault whereupon the scoundrels assaulted him severely and caused injuries to various parts of his body. Two constables came during the occurrence and saved them. The accused persons ran away due to the presence of the constables. In the evidence adduced it is said that Abdus Sobhan gave a lathi blow on the head of the deceased in the south‑east corner of the tank where upon Akijuddin fell down in the water of the tank. Upon the cries of Abdur Rashid, Mostafa, his step maternal uncle and Halim, his brother, arrived and they picked up their father and took him to the outer compound of their house on the northern bank of the tank whereupon accused Tafsir, Sobban, Siku, Edil Habib, Mahbub, Jitu and Rustaln armed with lathis and daos arrived there and of them accused Tafsir struck a dao blow on the head of their father Akijuddin causing a bleeding injury and he fell down and beat Akijuddin with lathis. Accused Jitu and Rustam beat Mustafa with lathis. Then the accused persons ran away. According to the First Information Report the occurrence took place near the bank of the tank and there is no mention in it that the occurrence continued in the courtyard of the house of Akijuddid after he was carried there. Golam Mostafa is not shown to be an eye witness in the First Information Report whereas he deposed as an eye‑witness in Court. Two constables are said to have come to the place of occurrence but they have not been examined in the case. In the First Information Report the names of Rostam, Jitu, Habib and Mahbub are mentioned as having come armed with various weapons and the charge framed under section 147 of the Pakistan Penal Code against the accused persons is that they were members of an unlawful assembly in prosecution of the common object of such assembly to cause hurt to deceased Akijuddin committed an offence of rioting. There is however no evidence, according to the learned Counsel, that ‑three of them, namely, Jitu, Mahbub and Habib even touched the deceased with any weapon carried by them.

6. On a consideration of the First Information Report and the evidence in the case, it is clear that the case now made out in Court is a vast improvement on the occurrence which took place. The outstanding improvement is that the place of occurrence has been shifted from the bank of the tank to the outer compound of the house of Akijuddin where the occurrence is said to have been finally ended. That perhaps has been done with some object in view, namely, to deny to the accused persons any right of private defence of property that they may have had. Be that as it may, as the place of occurrence has been shifted with some motive and the prosecution has not come with clean hands, this is a fit case where the conviction of the appellants and the sentence passed on them should be set aside.

7. We, accordingly, allow the appeal and set aside the conviction and sentence passed on the appellants. The appellants are on bail and they are discharged from their bail bonds. S. ALI, J.‑I agree with my Lord the Chief Justice. K. B. A. Appeal allowed.