P L D 1963 Dacca 251 (PLP)

This Rule by the petitioners, who have been convicted by Mr. M. K. Ali, a Magistrate of the 1st Class, Gopalganj under various sections of the Penal Code, has been obtained on grounds Nos. 6, 9 and 10.

2. The learned Advocate who has appeared on behalf of the petitioners, however, has not pressed any of the said grounds.

3. The only ground that has been pressed before me with reference to certain facts of this case is that the Appellate Court's judgment is not a proper judgment in appeal. Since on hearing the learned Advocates, of both sides, I have decided to send this case back for a re‑hearing of the appeal, it is not necessary for me to deal with the facts of this case in detail. I shall, however, only refer to those facts which are necessary for the appreciation of the point raised before me.

4. Mr. Sayem has contended that in this case the most important question to determine was whether the complainant Sonatan Nissa with her husband Khalilur Rahman and his brother Nazir Ahmed Bhuiya was living on the disputed homestead on the date of occurrence or it was in the possession of accused Shamsur Rahman and his father‑in‑law D. W. 1 Majibur Rahman. In deciding this question, the learned Additional Sessions Judge has found that the documentary evidence with regard to title is in favour of the accused. He has, however, thought and in my view rightly that the important question that needed consideration was as to who was in actual possession of the disputed property on the date of occurrence.

5. To support the case of the complainant, the prosecution examined 23 witnesses and the defence

9. The learned Addi tional Sessions Judge has, on a consideration of the evidence of the prosecution witnesses, come to the finding that the com plainant Sonatan Nissa was in possession on the date of occurrence. The grievance that has been made by Mr. Sayem is that the learned Additional Sessions Judge, while coming to this finding did not take into consideration the evidence of the defence witnesses who were examined to support the defence version of the case in its proper place. What the learned Judge has done is that he has discussed the evidence of the prosecution witnesses, and after taking into account the arguments that were advanced on behalf of the accused in that connection, has come to a finding that Sonatan Nissa was in possession. After this he has taken for decision the specific charges against the accused persons with regard to assault and theft and has come to his findings with regard to both. Last of all he has considered the evidence of the defence witnesses and has found that they are unreliable to prove the possession of the accused Shaamsur Rahman. The learned Additional Sessions Judge has observed that the D. Ws. appear to be under the influence of D. W. 1 and, therefore, on a consideration of their evidence with caution, he has found that their evidence does not inspire confidence in him. The learned Additional Sessions Judge has not indicated in his judgment the grounds for his holding that the D. Ws. who come to support the defence version of the case appeared to him to be under the influence of D. W.

1. In my view, the proper course, in a criminal case when witnesses are examined on behalf of both the parties, to follow, is to take into consideration the parties side by side and then to come to a finding whether the prosecution has succeeded in proving its case beyond any reasonable doubt or, in other words, the defence has either succeeded in showing that the prosecution version is untrue or that there is reasonable doubt as to the prosecution case. The disjointed manner in which the evidence of both the sides in this case has been considered cannot be approved of. It is not necessary for me to deal with the other points that have been made by the learned Advocate in support o f his contention that the learned Judge's judgment cannot be supported, because they touch on the merit or demerit of the evidence itself. In that view of the matter, I have purposely avoided in dealing with those questions and making my comments thereon.

6. Mr. Shamsul Huda who has appeared on behalf of the State has found himself in difficulty in view of the judgment of the Additional Sessions Judge in supporting it.

7. The result, therefore, is that this Rule is made absolute. The judgment of the learned Additional Sessions Judge is set aside and the case is sent back to the lower Appellate Court for a rehearing of the appeal. S. B./A. H. Rule made absolute.