P L D 1961 Dacca 429 (PLP)

KHAN, J.‑The four appellants before us namely, Sona Mia, Muktaruddin, Taher Ali alias Tahuruddin and Abdul Kader were tried by the 1st Assistant Sessions Judge of Mymensingh on charge under sections 304/34 of the Pakistan Penal Code and under section 323 of the Pakistan Penal Code. All the four appellants were charged under sections 304/34 of the Pakistan Penal Code for committing culpable homicide not amounting to murder causing the death of Lal Mia in furtherance of the common intention of them all. The appellant Mukhtaruddin and Tahur Ali alias Tahuruddin was further charged under section 323 of the Pakistan Penal Code for voluntarily causing hurt to Siraj Mia and the appellants Muktaruddin and Sona Mia were also charged under section 323 of the said Code for voluntarily causing hurt to Tota Mia. The trial was held with the aid of four Assessors, all of whom found all the appellants guilty to the charges levelled against them. The learned Assistant Sessions Judge on an assessment of the evidence on record and agreeing with the opinion of the assessors found all the appellants guilty under sections 304/34 of the Pakistan Penal Code and convicted them thereunder and sentenced them to rigorious imprisonment for five years each. He further found the appellant's 1‑3 guilty under section 323 of the Code but passed no separate sentence thereunder. This appeal is directed against the conviction and the sentence that were passed on them.

2. The case of the prosecution is, in substance, as follows:‑ On Friday, the 25th Bhadra corresponding to 9‑11‑59, the deceased Lal Mia went to his field before taking his morning meals. When he was returning home, the four appellants who are his agnatic cousins in relation accosted him and when Lai Mia approached a spot at the crossing between the two pathways a few cubits to the north of the cowshed of the appellant Sona Mia, all the four appellants attacked and assaulted him with lathis and ballams. According to the prosecution, appellant No. 4 Abdul Quadir had a ballam in his hand and the other appellants had lathis in their hands. When the appellants were assaulting Lal Mia, the latter cried for help which attracted the attention of his wife P. W. 1 Asumannessa and his son P. W. 2 Tota Mia who were then in the homestead of the deceased Lal Mia, which is about 40/50 cubits to the north of the spot where Lai Mia was being assaulted. Asumannessa set out at once and came out of the homestead and proceeded towards the place of occurrence and saw the accused persons assaulting Lai Mia. She hastened there and before she could reach the spot, the appellants fell Lai Mia on the ground in course of the assault. She fell upon her husband in order to shield him from the assaults of the appellants uttering Duhais but to no effect. Her son P. W. 2 Tota Mia also followed her there and raised Duhais. He also saw the appellants assaulting the deceased Lal Mia. It is alleged that the appellant Sona Mia dealt two lathis blows on Tota Mia and caused injuries on his forehead, while the appellant Muktaruddin dealt him a lathi blow on his waist. Tota Mia ran towards the east to call his uncle P. W. 4 Siraj Mia and he came back with him only to see that his father was being carried to his house by his mother, one Hafez and Sunder Ali. When Siraj Mia came to the place of occurrence, he challenged the assailants of the deceased whereupon the appellants who were standing near the cow‑shed of Sona Mia fell upon him and assaulted him also. Lal Mia, according to the prosecution told his wife, son, brother and others about the names of the assailants and as to why he was assaulted. A local doctor was called at about 3 p.m. who rendered first aid to the deceased Lal Mia. As it was a rainy day and as the complainant was busy with Lal Mia who was in a precarious condition no arrangement could be made to go to the thana then and there. Lal Mia, however died of the injuries sustained by him, in the night following. On the following morning P. W. 4 Siraj Mia went to the Kuliarchar Char P. S. and lodged first information report with the police at 10‑15 a.m. It is alleged by the prosecution that on Wednesday preceding the day of occurrence the cow of Lal Mia damaged the paddy seeding of the appellant Kadir over which there was exchange of abuses between the appellant Kader and the deceased Lal Mia and out of that grudge the deceased Lal Mia was called by the appellant Sona Mia as stated above and was assaulted by him and other appellants. The police after investigation submitted charge sheet against the appellants showing the appellants as absconders who, however, surrendered subsequently. After a preliminary enquiry by a competent Magistrate, the appellant were sent up to the Court of Sessions to stand their trial.

3. The defence of the appellants is that a cow of the deceased Lal Mia damaged the paddy seedlings of Abdul Kadir on Thursday preceding the date of occurrence and not Wednesday as alleged by the prosecution. The appellant Kadir abused Lal, Mia's son Tota Mia for that Lal Mia was not at home on that day and when he returned home, his wife reported this fact to him at night which enraged him and out of that anger the deceased Lal Mia, his son Tota Mia and brother Siraj Mia made criminal trespass upon the homestead of the appellant Sona Mia in early dawn and attacked the appellants, whereupon a mutual fight took place between them and none saw who assaulted whom in that fight. In short, the plea of the appellants is one of right of private defence. The learned Assistant Sessions Judge convicted and sentenced the appellants as stated above.

4. Mr. Nurul Amin, learned Advocate, appearing on behalf of the appellants has raised before us the following points: (1) The occurrence did not take place at the time, at the place and in the matter as alleged by the prosecution; ‑ (2) the genesis of the occurrence is not what has been alleged by the prosecution; (3) the prosecution having not examined disinterested and independent witnesses as named in the first information report as also cited in the charge sheet, an adverse inference ought to have been drawn against the prosecution story and as such the appellants should have been given benefit of doubt. (4) The prosecution case has not been established beyond reasonable doubt. (5) The provisions of sections 211 and 212 of the Code of Criminal Procedure not having been complied with by the committing Magistrate, the accused appellants have been highly prejudiced in their trial and as such their conviction and sentence can not be sustained in law.

5. Let us first take up the last point, namely, whether the provisions of sections 211 and 212 of the Code of Criminal Procedure were complied with in this case and if not what is the effect thereof. Mr. Amin‑ has contended before us that it is mandatory on the committing Magistrate immediately after framing of the charge to require the accused to give the list of witnesses and unless this is done, the Magistrate can have no opportunity to exercise his' discretion under section 212 of the Code of Criminal Procedure and examine any witness so named by the defence. This, it is urged, is a substantial provision of procedure and non‑compliance with it is not curable under the provision of section 537 of the Code of Criminal Procedure. He has further urged that as the appellants had no notice that they were required to file a list of defence witnesses as provided under section 212 of the Code of Criminal' Procedure, they did not cite any defence witness to be examined by them in the trial Court and as such they had no opportunity to adduce evidence in this case and consequently they were highly prejudiced in their trial. In support of Mr. Amin's contention, he has relied on a decision of the Calcutta High Court in the case of Kassinath Das Bairagya and others v. Kalipada Das Bniragya (56 C W N 202) and also a decision of the Lahore High Court in the case of Mohammad Sharif v. Emperor (A I R 1934 Lah. 23). He has further referred us to a decision of this Court, in the case of Atar Ali Shah and another v. Reazuddin ((1957) 9 D L R 69) and a decision of our Supreme Court reported in moonda v. State (P L D 1958 S C (Pak.) 275). In all these cases, it has been held that is mandatory on the Magistrate that immediately after the framing of charge he should require the accused to give his list of witnesses. Unless this is done, the Magistrate can have no opportunity to exercise his discretion under section 212 of the Code of Criminal Procedure and that the provisions in sections 211 and 212 of the Code of Criminal Procedure are substantial provisions of procedure and non‑compliance with these is not curable under the provisions of section 537 of the Code of Criminal Procedure. In this case it would appear from the record of the committing Magistrate that after the framing of the charge, the learned committing Magistrate omitted to require the accused to file a list of defence witnesses in terms of section 211 (1) of the Code of Criminal Procedure. So there was non‑compliance of provisions of section 211 (1) of the Code of Criminal Procedure. Opportunity to adduce defence was, however, allowed to the appellants by the trial Judge and the appellants, it appears, availed of that opportunity to a limited extent, namely, by examining one of the prosecution witnesses as a defence witness who was not examined by the prosecution and was available in Curt when the examination of the appellants under section 342 of the Code of Criminal Procedure was finished.

6. Mr. A. Hye Chowdhury, learned Advocate, appearing on behalf of the State does not dispute the principle of law as laid down above and has also frankly conceded that even in an appellate stage the point of law raised by Mr. Nurul Amin can be agitated. He has, however, urged that as opportunity was given to the appellants to adduce defence by the trial Judge and as the appellants availed of that opportunity by examining one witness, they have not been prejudiced in the least in their trial and as such the conviction and sentence of the appellants cannot be set aside on that ground. We are, however, unable to accept the argument of Mr. Chowdhury. We are clearly of the view that the appellants have been highly prejudiced in their defence in this case. The defence raised a plea of right of private defence amongst other pleas. They came to know of their right to examine defence witnesses only when they were examined under section 342 of the Code of Criminal Procedure by the trial Judge and at that time they had no other alternative than to examine one prosecution witness as a defence witness who was not examined by the prosecution and was available then and there. Had they got notice of their right to cite and examine defence witnesses earlier, they would have taken steps to cite defence witnesses of their own choice in support of their plea of rights of private defence and examine them at an appropriate time In the circumstances the appellants have undoubtedly been prejudiced in their trial. The effect of non‑compliance of sections 211 (1) and 212 of the Code of Criminal Procedure has been laid down by their Lordships of the Supreme Court of Pakistan in the case mentioned above. In that case their Lordships held that the accused were prejudiced in their trial for non compliance with the provisions of, sections 211 (1) and 212 of the Code of Criminal Procedure and as such they remitted the case for retrial of the accused after giving the appellants an opportunity to cite the defence witnesses and to examine them. In this case as we have found above that the appellants have been highly prejudiced in their defence we find no other alternative than to remand the case to the Court below with the direction that the accused be retried de novo from the stage of framing of the charge by a Sessions Judge other than the Judge concerned after allowing opportunity to the accused as the law requires to produce their evidence if any.

7. We accordingly allow this appeal and set aside the conviction and sentence of the appellants with the direction as given above. Since we send the case back on remand for retrial, we have refrained from expressing any opinion on merits involved in the other points raised by Mr. Nurul Amin.

8. The appellants will remain in custody until retrial. Let the records of the case go down at once and the retrial be expedited. ALI J.‑I agree. K. B. A. Appeal allowe : Case remanded.