P L D 1961 Dacca 795 (PLP)

"Where an accused; while on his trial for offences under sections 471 and 193, I. P. C. being directed to produce a certain incriminating document, did not produce the document and in consequence the prosecution against him failed. The accused could not be convicted under section 175, I. P. C., for his omission to produce the document."

4. The decision in the other case, referred to above, is also to the same effect but these authorities appear to be distinguish able in this respect that in the present case before me one of the petitioners in any view of the matter was not an accused in any case or proceeding pending against him and as for the other, too; there was only an order for filing a complaint against him under section 465 but no complaint had actually been filed till then.

5. It has been next contended by the learned Advocate that the notice, issued upon the petitioners under section 94 of the Code of Criminal Procedure was not legal inasmuch as the said section had no application and that the petitioners as such were not legally bound to produce the documents in obedience thereto. The relevant provision as embodied in subsection (1) of section 94 is as follows : "Whenever any Court, or in any place beyond the limits of the towns of Calcutta and Bombay, any officer in charge of a police station considers that the production of any docu ment or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order."

6. In the present case the said notice was issued by the learned Magistrate who held the original trial in the case filed at the instance of accused‑petitioner No. 1 and it appears that at the time when he issued the notice no inquiry, proceeding or trial with regard to these petitioners, was actually pending before him. This provision does not, therefore, appear to have application wherefor the notice in question cannot be said to have been legally issued. It must follow that the learned Courts below were wrong in holding that the petitioners were bound to produce the document pursuant to the above‑mentioned notice issued upon them. 6‑(A). Lastly, Mr. Rasheed has argued that the learned Courts below were wrong in holding that the petitioners failed to produce the document intentionally. To start with the learned Sessions Judge, it appears, has observed "The fact remains that Mokbul Hossain was asked to produce the document in Court by a notice and he appeared with a lame excuse that he had made it over to his brother Mobarak Hossain and, as such, it was not possible for him to refile the document.

7. As has already been made clear above, the document actually belonged to Mobarak Hossain i. e., the petitioner No. 2, and after it was taken back from the Court it should have normally been returned to him as he was the owner. It is, therefore, difficult to appreciate the observation of the learned Sessions Judge characterising it as a lame excuse. The plea that the document had been moth‑eaten was not taken for the first time at their trial but had actually been taken by petitioners even before' the learned Magistrate who had held the original trial and called upon them to produce the document. So far as the petitioner No. 1 is concerned he took the above plea by filing a solemn affidavit while the petitioner No. 2 also raised the same plea in a petition filed by him on that very day. It does not appear that the learned Magistrate thereon called upon them or either of them to produce the moth‑eaten pieces, and that being so, it is difficult to appreciate how, they can be found fault with for non‑production of the said pieces. Such a view would have possibly been justified had they been called upon to produce the said pieces and failed to do so. It appears that the learned trial Magistrate has observed and the appellate Court too has repeated : "that it was quite easy for the appellants to get the document moth‑eaten after gaining times and then to produce certain portions at the time of trial of this case after evading the Court which wanted it."

8. There appears to be no basis at all for this observation and I cannot, therefore, see my way to subscribe to it. The fact remains that the moth‑eaten pieces were in fact produced when in spite of the plea to that effect taken by them earlier they were prosecuted under section 175 of the Pakistan Penal Code. The conduct of the accused‑petitioners and particularly of the accused-petitioner No.1 may in the circumstances of the case be open to suspicion but mere suspicion cannot take the place of legal proof. Thus the finding that the accused‑petitioners are guilty of the offence charged with appears to be based primarily on suspicion and surmise and not on any legal evidence actually on record.

9. In the circumstances, the conviction of the accused- petitioners cannot, in my opinion, be sustained.

10. The rule is accordingly made absolute. The convictions and sentences of the accused‑petitioners are set aside and they are acquitted of the charge against them and discharged from their bail.

11. The rule issued suo motu stands discharged. K. M. A. Rule made absolute.