P L D 1957 Dacca 164 (PLP)

ZAMAN, J.

This Reference has been made by Mr. M. H. Ali, Additional Sessions Judge, Tippera, under section 438 of the Code of Criminal Procedure. He recommends that the order of Mr. C. A. Ahmed, Magistrate, First Class, Chandpur, dated the 21st of April, 1954, convicting the accused persons under section 427 of the Pakistan Penal Code, and sentencing them to a fine of Rs. 30 each, in default, to rigorous imprison ment for one month each, be set aside for the reasons stated in the letter of Reference. Mr. Shafiquer Rahman appears in support of the Refer ence, while Mr. Ruhul Islam appears in opposition thereto. An examination of the record discloses that the accused persons were tried on a charge under section 427 of the Pakistan Penal Code, and convicted and sentenced as stated above. It was a complaint case and the complaint was lodged on the allegation that the accused persons on account of long-standing enmity had uprooted the chilly plants grow n by the complainant, and, as a result of such uprooting the complainant suffered damages to the extent of about Rs.

200. After the close of the evidence, the Magistrate held a local inspection and there he had a talk with some persons including one Jalaluddin. In the judgment, the Magistrate observed as follows: "Even this Jalaluddin with whom the complainant has enmity told me during my local inspection that the complain ant possesses the land and that the accused party want to possess the land by force." What therefore follows from the above observation is that the Magistrate not only played the role of a Judge but also that of a witness. It is true that he was competent to see for himself the local features in order to follow the evidence recorded by him in Court, but certainly he was not competent to use the materials gathered from persons whom he happened to meet there in deciding the truth or otherwise of the case. Mr. Islam contends that independently of the evidence of Jalaluddin there are other materials in the record sufficient to warrant a conviction under section

427. It is true that besides Jalaluddin's untested statement there are other materials in the record regarding the uprooting of chilly plants, but it is clear from the judgment that the Magistrate was greatly influenced by what he gathered from Jalaluddin in a manner not sanctioned by law. He should not have considered Jalaluddin's evidence at all in giving his decision on a vital point, specially when the accused persons bad no opportunity to cross-examine him. Mr. Islam contends that the defect complained of is curable by section, 537, Criminal P. C. I confess I am unable to subscribe to his view. The manner in which the Magistrate conducted the proceeding having prima facie prejudiced the accused persons, I feel I should not take recourse to section 537, Criminal P. C. to legalise the proceeding. From the reasons stated above and for the reasons given by the Additional Sessions Judge, I accept the Reference, and set aside the order of conviction and sentence, and send the case back for retrial according to law by some other Magistrate. K. B. A. Reference accepted.