P L D 1956 Dacca 142 (PLP)

ELLIS, J‑This is the appeal by one Syam Osta, a young -man 20 or 22 years of age. In the committing Court he was described as a cultivator, but in the Court of the Assistant Sessions Judge as the headings of the form for recording examination of the accused were not filled up at all, there is no entry opposite his occupation. It appears, however, that in the Sessions Court it was argued on his behalf that as he was a student, he could not possibly have taken part in the dacoity in respect of which he was placed on trial. On the prosecution case there was dacoity at 1 a.m. on the 9th April, 1950, in the house of one Rabi Charan Mondal of village Purbakandi, 10 miles north‑west of Gosairhat Police Station. An information was lodged at the local Police Station at 19 hours on the 9th April. 1950, and the case was duly investigated by the Police. The appellant absconded and did not surrender until the 1st April, 1952. Accordingly he was sent up for trial in a supplementary trial on a charge of having committed dacoity in the house of Rabi Charan Mondal on the night of 9th April, 1950. He was tried by Mr. S. A. Hafez, the First Assistant Sessions Judge of Faridpur and was convicted under section 395 of the Code and was sentenced to rigorous imprisonment for five years. His appeal was admitted on the 26th March, 1953. No one appeared before us on behalf of the appellant and Mr. Salahuddin Ahmed, the Deputy Legal Remembrancer has appeared on behalf of the Crown. The appeal was admitted because the confession of one Kala Mia Gharami was admitted in evidence. That confession was proved by P. W. 5, Kazi Abdul Gafur, a Magistrate of the 1st Class at Madaripur who recorded the confession. Kala Mia Gharami was convicted in the original trial and so at the time when the appellant stood his trial he was no longer in the position of an accused person. In his judgment the learned Assistant Sessions judge refers to the confession in the following terms "Besides this evidence, one of the accused Kala Mia Gharami who was tried before made a confessional state ment before the Magistrate implicating himself and the present accused amongst others with the dacoity in ques tion". We cannot understand how the learned Public Prosecutor ever came to put in the confession of Kala Mia Gharami as evidence in the case or how the learned Assistant Sessions judge persuaded himself that it was admissible. At the time when the appellant was placed on trial, Kala Mia Gharami was no longer an accused. He had been tried, had been convicted and was presumably serving out his sentence. In these circumstances if the Public Prosecutor thought it necessary, he could have produced Kala Mia from jail and could have examined him as a witness in the case. What he could not do in law was to put in his confession as the con fession of the co‑accused. The learned Deputy Legal Remembrancer has sought to take shelter under the provisions of section 167 of the Evidence Act. We do not think that this is a case in which the provisions of this section should be applied. The appellant had a right to be tried by the learned Assistant Sessions Judge and Assessors on evidence that was admissible and it may well be that the introduction of this inadmissible piece of evidence influenced the result of the trial. In these circumstances the appeal is allowed. The conviction and sentence is set aside and the case is remanded to the learned Assistant Sessions Judge for retrial on the original charge according to law. The appellant will remain in jail pending his re‑trial. BADIUZZAMAN, J.‑I agree. K. B. A./M. S. Appeal allowed.