P L D 1960 Dacca 396 (PLP)

MURSHED, J.‑Appellant Sona Miah was tried by Mr. M. A. Jabir, Additional Sessions Judge, 1st Court, Mymensingh, with the aid of assessors, on a charge under section 302/34 of the Pakistan Penal Code, on two charges under section 326/34 of the said Code and on a charge under section 460 of the said Code. Prosecution case, in so far as it is material for the disposal of this appeal, may be very briefly' stated as follows: Complainant Abdul Mannan (P. W. 1) lived in a village 1 called Choubaria, within Police Station Tangail, in the district of Mymensingh. In close proximity to him lived his villagers who were his collaterals. There had been a long series of disputes and quarrels between the complainant and his relations. On the 5th of Asbar 1365,. B. S. corresponding to the 21st of June 1958, shortly after midnight, while the complainant, his wife Mariam Begum (P. W. 2), his daughter Parul (P. W. 3), his son Lebu (deceased) and some other minor children were sleeping on a chouki inside the ghar which had three doors and two windows on the east and some windows on the south, some persons effected an entry into the ghar and Abdul Mannan woke up when be was given a poke on his leg. The ghar was lighted with flashes of torches and he was able to recognise a number of persons including the appellant Sona Miah. The said persons inflicted severe injuries on him which almost killed him. His wife and son woke up, and while the son was trying to ward off the attacks on his father he was given several deadly blows. Appellant Sona Miah inflicted a blow on the neck of this boy with a daggar as result of which he died. P. W. 2 Mariam Begum, Wife of Abdul Mannan, also received several injures on her person. Appellant also inflicted grievous injuries on Abdul Mannan and Mariam Begum as well. On hearing the alarm raised by the injured persons and the inmates of the house, various persons from the neighbourhood came to the place of occurrence when the assailants had left. P. W. 1 Abdul Mannan, without disclosing the names of the assail ants, asked the neighbours to take him to a hospital. It is alleged that P. W. 2 Marium Begum told the neighbours the names of nine persons including the appellant. Complainant's daughter Barul, who has been examined as P. W. 3 in this case, also claims to have recognised these persons. She further claims that she told the neighbours about her recognition and named those who had participated in the murderous assault on the boy and in inflicting grievous injuries on her father and mother. It is further alleged by the prosecution that Abdul Mannan gave out the names of five persons while they were near the river that which is about a quarter of a mile from his residence. A constable and a havildar had gone to that place. The constable wrote out the names as given by Abdul Mannan. Thereafter a first information report was lodged by Abdul Mannan at the police station. Upon completion of investigation and a preliminary inquiry by a competent Magistrate, the appellant along with eight other persons was committed to the Court of Session to stand their trial on various charges. When the trial commenced, the appellant Sona Miah, by reason of his illness, could not attend Court. The learned Additional Sessions Judge, therefore, proceeded to try all the accused persons, except the appellant. The appellant therefore, was tried separately on the aforesaid charges. Appellant pleaded not guilty to the charges that were framed against him. His defence is, that be has been falsely implicated in this case because of enmity. It has been vigorously suggested on behalf of the defence that none of' the inmates of the house of the complainant was able to recognise any of the assailants, the night being a dark night. The assessors were equally divided in their opinion with regard to the charge under section 302/34 of the Pakistan Penal Code. They were, however, unanimously of opinion that the appellant was guilty under section 326/34 of the said Code for causing grievous hurt to Abdul Mannan. They were also unani mously of opinion that the appellant was guilty under section 324 of the said Code for causing grievous hurt to Marium Begum. Furthermore, they unanimously found .him guilty under section 460 of the said Code. The learned Additional Sessions Judge, however, found the appellant guilty under section 302 of the Pakistan Penal Code and also guilty under section 326/34, 324 and 460 of the said Code. He sentenced him to suffer transportation for life under section 302, to suffer rigorous imprisonment for a period of five years under section 326/34, to suffer rigorous imprisonment for a further period of two years under section 324 and also to suffer rigorous imprison ment for a further period of five years under section 460 of the Pakistan Penal Code, all the sentences being ordered to run concurrently. This appeal is directed against the convictions of the appellant and the sentences passed on him as stated above. At the hearing of this appeal Mr. Aleem, learned counsel who appeared before us for the appellant, took us through the entire evidence and the records of this case. He has argued that the prosecution has failed to establish its case against the appellant by clear and conclusive evidence. In this case the prosecution case rests on the story of recogni tion by three witnesses, namely, P. W. 1 Abdul Mannan, P. W. 2 Mariam Begum and P. W. 3 Parul. With regard to P. W. 1 Abdul Mannan, it would be seen that he did not disclose any names soon after the occurrence. The evidence of P. W. 11 Muhammad Eshaque, constable, who went to the place of occurrence soon after the incident, is, that he had enquired from the injured persons about the occurrence but they did not reply, but were crying. Thereupon the constable left for the police camp. A number of neighbours came to Abdul Mannan and they took him away to hospital. It is alleged that for the first time at the river ghat P. W. 1, Abdul Mannan gave out the names of five persons. The constable also came to the river ghat and he wrote out the names of the persons named on a slip of paper. This slip of paper was seized by the investigating officer. But it is curious that the same was neither produced nor any explanation was given for its non -production. Thereafter P. W. 1 Abdul Mannan lodged the first information report at the police station in which he implicated, five persons. In the trial Court he implicated nine persons. It has been argued by the learned counsel for the appellant that P. W. 1 Abdul Mannan gave out five names after he had had the opportunity of being tutored by some of the neighbours who had come to see him. Our attention was particularly drawn to the evidence of P. W. 6 Gani Molla who, according to the prosecution, came to the place of occurrence soon after the incident, P. W. 6 Gani Molla claims to have seen nine persons proceeding in the direction of the house of P. W. 1 Abdul Mannan. Defence has drawn our attention to the deposition of this witness that he never mentioned' this to the investigating officer when he was examined in course of investigation. P. W. 6 Gani Molla further says that some of those nine persons were galpattas. This is contradictory to the evidence of P. W. 1 Abdul Mannan. We are, therefore, driven to the following conclusion, namely that the evidence of P. W. 1 can be divided into three periods, the first of which is at his house soon after the incident. It will be noticed that he did not mention anyone at all in his residence. The second one is when he gave e out five names at the river ghat. These names were given at a time when there was a possibility of his having been tutored by other persons who came afterwards. The third period is his evidence in Court where he implicated nine persons. In these circumstances, we think that it would be extremely unsafe to rely upon his evidence as to recognition of the persons who participated in the assault in the night mentioned above. The next witness is P. W. 2 Mariam Begum. She has stated that she was able to recognise nine persons and that she gave out those names to the neighbours who had gone to her house after the incident. She has named a number of those culprits. Pro secution has examined P. W. 6 Gani Molla and P. W. 7 Nurul Islam to corroborate her evidence. P. W. 7 Nurul Islam flatly contradicts her. He has stated in his examination‑in‑chief that Mannan's wife (P. W. 2 Marium Begum) did not tell anything to them on the night of occurrence. Similarly, P. W. 11 Muhammad Eshaque has also stated that he did enquire from the injured persons about the occurrence. His further evidence is that they did not say anything about kept crying. Thus P. W. 2 stands contradicted by two prosecution witnesses as to whether she gave out the names of the assailants of her son, husband and herself at the house soon after the occurrence. Marium Begum was cross-examined with reference to the statement she had made to the investigating officer. Her attention was drawn to the fact that she did not mention before the investigating officer the names of Toraf, Sorhab, Safiuddin and Sharafat. Furthermore, her attention was also drawn to the fact that she did not state before the investigating officer that the appellant had struck Lebu with a dagger. This completely destroys the credit of this witness. The learned Additional Sessions Judge has chosen not to believe the investigating officer. We, however, feel that there is nothing in the evidence of this case from which we can come to the conclu sion that the investigating officer had prepared a false case diary. We cannot, therefore, act on the assumption that he had prepared false statements with regard to the examination of the prosecution witnesses. On the contrary, it has been vigorously argued before us that the appellant is entitled to take advantage of the contradictions which have been elicited from the prosecution witnesses with reference to their statements made before the investigating officer. The learned Additional Sessions Judge thinks that these are mere minor omissions. We, however, think that the aforesaid omissions are on such material and vital particulars that they must be regarded as contradictions. If what this witness has stated in the course of her evidence in the trial is true, she must have repeated those things before the investigating officer. We do not think that the aforesaid omissions are matters of minor detail. We, therefore, find it difficult to place any reliance on the evidence of P. W. 2 Mariam Begum with regard to her recognition of the persons who participated in the occurrence narrated above. We now turn to the evidence of P. W. 3 Parul who is a minor under twelve years of age. Her attention was drawn to the statement she made before the investigating officer to the effect that she did not see who had struck her brother Lebu and that Lebu was found dead inside the mosquito net. This contradicts the evidence of P. W.3 on a vital point. There are various other contradictions which we need not set out in detail. The witness is a child witness who is capable of being tutored and it transpires that she has made a lot of improvements on her original story. In these circumstances, we do not think that it would be safe to accept her evidence on the point of recognition of the persons who are implicated in the occurrence which is the subject‑matter in this case. The other witnesses are merely corroborative witnesses. P. W. 6 Gani Molla was cross‑examined to the effect that he did not tell the investigating officer about nine persons alleged to have been seen by him before the aforesaid occurrence. He has introduced the story of some of the persons having galpattas. He has also been contradicted on various material particulars. The criticism against his evidence is that he is an unreliable witness and we are also not impressed with his evidence given in the trial Court. P. W. 7 Nurul Islam has contradicted P. W. 2 Mariam Begum on a very vital point, with reference to his statement before the investigating officer he was cross‑examined to the effect that he did not mention before the investigating officer that Mannan said that Sona Miah had murdered Lebu. Having regard to what we have already said with reference to P. W. 1 Abdul Mannan P. W.

2. Marium Begum and P. W. 3 Parul, the evidence of this witness is not of much use to the prosecution. P. W. 8 Abdul Mannaf, P. W. 9 Raj Mamud Sarkar and P. W. 10 Mesrab Ali are witnesses who were merely tendered by the prosecution and their evidence is not of any assistance. The evidence of P. W. 12 Kazi Nuruzzaman, Sub‑Inspector of Police, practically destroys the evidence of the alleged eye‑witnesses. In these circumstances, we hold that the prosecution has not been able to establish its case by clear and convincing evidence. We, therefore, feel that the appellant is entitled to a benefit of doubt and we give him that benefit. The result, therefore, is that we allow this appeal and set aside the convictions of the appellant and the sentences imposed on him as stated above. It is directed that the appellant Sona Miah be set at liberty forthwith, if not wanted in any other connection. KHAN, J.‑I agree. . A. H. Appeal allowed.