P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.‑This judgment will dispose of two Criminal Appeals brought against the State by the same persons, namely, Askar Ali and eight others, against two orders of the Dacca High Court. The appellants along with seven other persons were brought to trial before an Assistant Sessions Judge of Sylhet, on charges under sections 147, 325, 304/149, Pakistan Penal Code and other allied charges, which it is not necessary to detail. The Assistant Sessions Judge, Mr. A. H. Khan commenced the trial on 19th November 1956, and continued it on the four days following. On the next day, the 24th November, the accused persons were examined and arguments having been, presented by counsel, the opinion of the assessors was recorded. On this day, the Assistant Sessions Judge, Mr. A. H. Khan was gazetted as Additional Sessions Judge, and the record shows that he made an order that he would continue to try the case in that capacity. He pronounced judgment on the 27th November, convicting nine appellants, and acquitting the remaining seven accused persons. Askar Ali was convicted under sections 325 and 147 P. P. C. Abbas Ali was found guilty udder sections 323 and 147, P. P. C. The remaining seven accused persons, viz., Hasratulla, Asad Ali, Samad Ali, Latif, Habibulla, Rashid Ali and Makhan were convicted only under section 147, P. P. C. The subscription under the signature of the Judge at the end of the judgment reads as follows: ‑ "Additional Sessions Judge, in charge of the Court of the Assistant Sessions Judge, 2nd Court, Sylhet". Upon the assumption that the conviction was by an Assistant Sessions Judge, an appeal was taken before the Sessions Judge of Sylhet, who pronounced judgment on the 9th February 1957. He altered Askar Ali's conviction under section 325 to section 304‑A, and reduced the sentence from 3 years' rigorous imprisonment to a fine of Rs. 500 or in default to suffer 6 months' rigorous imprisonment. He set aside all the remaining convictions and sentences. The complainant in the case, Nur Bakhsh, moved an application against this decision before the High Court of Dacca on a number of grounds, the principal being that the Sessions Judge had no jurisdiction to entertain the appeal and his order was therefore bad according to law. This petition was heard by a learned Single Judge. It should be mentioned here that the plea of jurisdiction had been raised by, the Public Prosecutor before the Sessions Judge as Well, and had been rejected in the following words: ‑ "'There is nothing to show that Mr. A. H. Khan having been promoted to the rank of Additional District and Sessions Judge he made over charge as Assistant Sessions Judge to any other person. The case not having been transferred to the Court of the Additional Sessions Judge it remained pending in the Court of the Assistant Sessions Judge and Mr. A. H. Khan not having made over charge as Assistant Sessions Judge in relation to the Court of Assistant Sessions Judge, he must be regarded to be exercising his power as Assistant Sessions Judge and not as Additional Sessions Judge. In my opinion this case was tried by an Assistant Sessions Judge within the meaning of section 408, Cr. P. C. Hence I hold that this appeal is competent". In the High Court, a different view was taken. It was held that the trial of the accused persons had not been completed before Mr. A. H. Khan was promoted to the status of Additional District and Sessions Judge, and therefore the appeal lay to the High Court and not to the Sessions Judge. In coming to this view, the learned Judge in the High Court cited five decisions of the High Courts at Calcutta, Patna, Bombay and Madras, all of which deal with cases of Magistrates being given enhanced powers as 1st Class Magistrates during the pendency of trials before them in the capacity of 2nd Class Magistrates. The cases are as follows:‑ (1) Bejoy Kumar v. Sita Nath 44 C W N 677. (2) Emperor v. Sakharam A I R 1943 Born. 94 (95). (3) Sheobhanjan Singh v. King Emperor A I R 1925 Pat. 472. (4) Deonandan v. Chalitar Mahton A I R 1942 Pat. 107. (5) Tirumala Venkata Reddy v. Sikatapu Ramayya I L R 51 Mad.

257. As the view expressed in these` judgments is consistent, it will be sufficient to reproduce the following short passage from the last mentioned judgment as indicative of the, conclusion reached in each of these cases: ‑ "The moment a Second Class Magistrate is invested with the powers of a First Class Magistrate, he becomes a First Class Magistrate and any convictions by him in cases which were taken up by him as a Second Class Magistrate would be only convictions as a First Class Magistrate". By parity of reasoning the convictions recorded by Mr. A. H. Khan in the present case should be regarded as convictions by at, Additional Sessions Judge. We note that the Criminal Procedure Code makes no provision for a person to occupy at the same time the positions of Additional Sessions Judge and Assistant Sessions Judge in the r same district. Since appointments are ordinarily to be made for a specified district, it is conceivable that a Judge who is Additional Sessions Judge for one district may be empowered as Assistant Sessions Judge for another district, but the Code does not con template that a single person can hold both these positions in respect of the same district. An Assistant Sessions Judge belongs to a distinct category of judicial officers, from that constituted by Additional Sessions Judges. Although larger powers are exercise able by the latter category, that does not make them holders of the powers of Assistant Sessions Judges, as Assistant Sessions Judges. Mr. A. H. Khan acted rightly in stating that as from the 24th November, he was dealing with the case as Additional Sessions Judge, and in signing his judgment in that capacity. We entertain no doubt that the view accepted by the learned Single Judge of the High Court on the basis of which he set aside the appellate judgment of the Sessions Judge and directed that the appeal should be heard by a competent Court the High Court, is the correct view. Criminal Appeal No. 4‑D of 1958 is brought to challenge this order of the learned Single Judge. We hereby dismiss it. When the case came up for hearing before a Division Bench of the Dacca High Court, the learned Judges dismissed it summarily. They said in a short order covering some 12 lines that they had heard counsel for the appellants at great length and had seen the depositions of the witnesses, that they found the case to be clear and straightforward involving no intricate questions of law or facts, that the judgment of the trial Court had considered all the salient points in the case, and that it was clear on a consideration of the evidence that the prosecution case was true and the charges had been established beyond reasonable doubt. They added that they saw no reason to disagree with the decision of the trial Court. Not a word was said regarding the intervening judgment passed by the Sessions Judge. We consider that it is a matter for regret that the learned Judges in the High Court did not see fit to take into consideration the grounds upon which the Sessions Judge had found it possible to deliver a considered judgment, which was practically a judgment of acquittal. Granting the view taken by the High Court that the judgment of the Sessions Judge was without jurisdiction and conse quently null and void, nevertheless it was a document containing arguments in law, which went to the advantage of the appellants. It has often been said in judgments of Superior Courts that it is important that justice should not only be done but that it should be manifestly seen to be done. Among the most important of the persons by whom justice should be seen to be done are persons who have been convicted of criminal offences at judicial trials. It is evident that to the convicted persons in the present case, the summary judgment of the High Court, containing no examination or statement of the facts or the legal issues arising out of the case and merely declaring that the judgment of the trial Court was in all respects satisfactory and worthy of agreement, but ignoring entirely the arguments upon which the Sessions Judge had based the acquittal of the accused persons on practically all the charge levelled against them, cannot have given the impression of being a judicial act in the proper sense. It was in our opinion requisite in the present case, when the learned Judges in the High Court had formed a view unfavourable to the appellants; that they should have themselves explicitly examined the facts and circumstances and expressed their reasons for disagreeing with the views formulated thereon by the Sessions Judge, in his acquitting order. In the absence of such treatment by the High Court, it becomes necessary for us to go into the evidence and in the light of our own conclusions to consider the arguments, which led the Sessions Judge to the conclusions he recorded.' It was conceded before us that the origin of the trouble had been correctly stated by the prosecution, namely, that the complainant‑party finding two planks missing which they had taken o8' from a boat, upon search found them hidden in a water tank belonging to Rouf and another of the accused persons and accordingly removed them. About 20 days later, Rouf demanded the return of the planks, claiming that they belonged to him, and a dispute developing, both parties agreed to the matter being submitted to arbitration. The arbitrators decided in favour of the complainants. The fight arose as a result of the complainant party refusing a later request by the accused Samad Ali that they should part with one of the planks, and the prosecution case as stated in the first information report was that Hasratullah immediately caught hold of the deceased Allah Bakhsh and then Abbas Ali, Habibullah, Abdul Latif, Abdus Samad, Makhan, Rashid and Askar picked up a number of bamboo pegs lying on the spot and began to beat Allah Bakhsh under the incitement of Asad Ali. Askar Ali gave a powerful thrust with a bamboo in Allah Bakhsh's abdomen as a result of which he fell down. In the report made by Nur Bakhsh a brother of Allah Bakhsh, it was said that he himself received some injuries, but as to this no medical proof was adduced. Another brother Rahim Bakhsh sustained a fractured bone in the left arm. 1n the initial report it was said about Rahim Bakhsh only that Abdul Samad caught him by the waist. Nothing was said in the initial report about any injuries inflicted upon the opposite party. It was said that persons intervened and stopped the fight after which Allah Bakhsh was seen by a doctor and then removed to the Government hospital where he died. After that, Nur Bakhsh went to the thana, and made a report, the suggestion being that if the result had not been so serious, no report would have been made. This possibility is supported by evidence that even after the fight the parties agreed among themselves that there would be another arbitration the following day. Some improvements upon the initial story were introduced in the evidence. Thus, it was said that as soon as the fight broke out, Asad Ali ordered that lathis should be brought and three persons, Israk, Rouf and Watir ran to their neighbouring hutments and returned with seven or eight lathis, which were used in the attack in addition to the bamboo pegs. It was said that Asad Ali and Habibullah gave belows to Rahim Bakhsh. A third injured person was added, namely, Karim Bakhsh who was said to have been hit by Abdun Nur. The injuries sustained on the two sides were as follows. Allah Bakhsh had a lump with a small lacerated wound on the head, an abrasion on his left forearm, a small lacerated wound on his right hand, and a bruise on the abdomen, which was a really serious hurt, as upon opening the abdomen, it was found that there was a small perforation of the intestine under this injury, which had led to peritonitis and in spite of the operation, the patient died the same night. Rahim Bakhsh had a fracture of the left ulna, but there was no external injury. Five of the accused persons bore injuries. Hasratullah had six injuries of which one was a lacerated wound, the others being comparatively minor. Habibullah had a lacerated wound on his head and two other minor injuries. Rashid Ali, Askar Ali and Watir Ali had nine minor injuries. The only explanation given for these injuries was that by Nur Bakhsh in his evidence, viz., that after the others had completed their attack, he picked up a peg and assaulted the accused‑party in self‑defence. The direct evidence for the prosecution was generally con sistent with that of Nur Bakhsh. All the accused persons with the exception of Hasratullah, merely denied the occurrence and pleaded innocence. Hasratullah stated that the decision of the arbitrators was in favour of the accused‑party, and that when Rouf got hold of one of the planks, Allah Bakhsh seized the other end and pulled it towards himself. (The suggestion was that in so doing Allah Bakhsh pulled the plank into his own stomach and thereby caused the fatal internal injury). As for his own injuries Hasratullah stated that he himself was beaten by Nur Bakhsh, Rahim Bakhsh and Karim Bakhsh and fell down senseless. No evidence was produced in defence, and the story that the arbitrators decided in favour of the accused persons obviously cannot be accepted in view of the evidence given by the prosecution to the opposite effect. It was not supported by the accused Samad Ali, who claimed to have been one of the parches himself. As regards this accused person, it was urged that his participation in the fight is negatived by the fact that he was one of the panches, but it is clear that he belonged to the accused party, and it is quite credible that after the failure of the arbitra tion, when the fight commenced he joined his own party. The trial Judge came to the conclusion, relying on the pro secution evidence, that Asad Ali and the other accused persons attacked Allah Bakhsh and others with the common object of beating them. He went on to hold that Askar was responsible for the abdominal injury, which caused Allah Bakhsh's death, but that this constituted an offence under section 325, .P. P. C. He held further that though the evidence that Abbas Ali fractured Rahim Bakhsh's arm was not satisfactory, yet Abbas Ali was proved to have assaulted Rahim Bakhsh and he therefore found him guilty under section 323, P. P. C. He discussed the evidence against each of the accused persons in respect of each charge, and finally recorded a conviction against each of them under section 147, besides convicting Askar Ali under section 325 and Abbas Ali under section 323, P. P. C., as stated, already. The Sessions Judge made no true analysis of the evidence, but after remarking that both parties had "apparently submitted to the jurisdiction of the salish and the quarrel arose when the salish decided or was about to decide that the two planks belong to Nur Bakhsh", he observed further that both parties had sustained injuries and concluded as follows: ‑ "In the circumstances of the case, I hold that a scuffle took place between the parties suddenly and it cannot be said that the appellants formed themselves into an unlawful assembly and committed rioting. I hold that there was no common intention and no rioting took place, though there might have been similar intention in the minds of the participants in the occurrence". The view thus expressed, upon which the Sessions Judge based his order of acquittal on the charge under section 147, P. P. C. is directly contrary to the only evidence in the case, namely, that led by the prosecution, which the Sessions Judge did not disbelieve. The actions attributed to the accused persons, namely, that when the quarrel reached a certain pitch they seized bamboo pegs lying on the spot and made a concerted attack on Allah Bakhsh and his companions, are sufficient to show that they had formed a common intention on the spur of the moment. The Sessions Judge himself admitted the existence of "similar intention in the minds of the participants" and on that finding it follows that those who at the call of Asad Ali picked up weapons and joined in the attack with the common intention of beating the other party, became constituted as an unlawful assembly. The ground given by the Sessions Judge for acquitting the appellants before him of the charge under section 147, P. P. C., thus proves to be completely unsound. As regards Askar Ali, the finding of the Sessions Judge is as follows: ‑ "I hold that it has been proved beyond reasonable doubt by P. Ws. I to 4 and 6 to 9 and the dying declaration that Askar caused a. push on the belly of Allah Bakhsh with a khuti. In the circumstances of the case, I hold that Askar had no intention to cause grievous hurt, but that he committed the offence under section 304‑A of the P. P. C., by causing death of Allah Bakhsh by a rash and negligent act not amounting to culpable homicide." This conclusion is also palpably wrong. There was clearly a fight, for injuries have been found on both parties. All the circumstances, which preceded the clash of arms had been established to the satisfaction of the Court. In such a clash, belows must be presumed to be struck with an intention, which is totally different from the kind of intention underlying a rash and negligent act. All blows in a fight are blows struck with a purpose, H and that purpose is to be measured by the striker's presumed knowledge of the likely consequences of his act. In the present case, Askar Ali's responsibility had been placed under section 325, P. P. C. and on the evidence it was not possible to place it at any lower level. Therefore, it must be held that the Sessions Judge's ground for acquitting Askar Ali of the charge under section 325 was wholly untenable. As to the case of Abbas Ali, a question was raised whether his conviction under section 323, P. P. C., can be maintained. The absence of external injury on Rahim Bakhsh's arm might sustain the argument, but the point is of no practical importance as the sentences awarded to Abbas Ali on the two convictions under sections 323 and. 147, P. P. C., had been ordered to run concurrently. Upon our own examination of the evidence we see no reason to differ from the view taken in' the High Court, viz., that the case has been rightly decided by the Assistant Sessions Judge. The appeal accordingly merits dismissal, but as we are informed that all but 16 days of the sentences of three months' rigorous imprisonment have already been served, we reduce these sentences under section 147, P. P. C., in the case of all the appellants except Askar Ali, and in the case of Abbas Ali we reduce also the concurrent sentence under section 323, to the period of imprison ment already undergone. Askar Ali's convictions and sentences are maintained, and his appeal is dismissed. A. H. Order accordingly.