P L D 1961 Dacca 1 (PLP)

MURSHED, J.‑Appeals Nos. 534 and 552 of 1959 were heard together by us and this judgment will dispose of both the said appeals. They arise out of the same judgment and the same set of facts and circumstances.

2. The five appellants in these two appeals were tried by Mr. A. G. Muhammad, Sessions Judge, Pabna, with the aid of Assessors on the following charges

3. Appellants Shabidullah Khan and Majid Molla were separately charged under section 302 of the Pakistan Penal Code. The former was charged under the said section for causing the death of one Wahed Mridha and the latter for causing the death of one Rajab Ali. Both of them were also charged under section 302/34 of the said Code for causing the death of Meghu Mondal. Appellant Wahed Ali Mollah was charged under section 302/109 of the said Code for abetting the murder of Wahed Mridha by appellant Shahidullah Khan and the murder of Rajah Ali by appellant Mojid Mollah. The said three appellants were further charged under section 148 of the said Code. The co‑accused of these three appellants, including the two appellants in appeal No. 552, namely, Khaleque Mollah alias A. Khaleque Mollah and Golzar Hossain, were charged under section 147 of the said Code. All the five appellants and their co -accused Jamiruddin Mollah, Akkas Ali Sardar, Iju Mollah and Khidir Khan, who have rot filed any appeal, were further charged under section 379 of the said Code for committing theft of paddy and two boats which were in possession of the party of the complainant.

4. The Assessors were unanimously of opinion that in respect of the charge under section 302 of the Pakistan Penal Code appellants Shahidullah Khan and Mojid Mollah were guilty under section 304 (11) of the Code. In respect of the charge under section 302/34 of the Code they were also unanimously of opinion that the said two appellants were guilty under section 326/34 of the Code. They also unanimously found the said two appellants guilty under sections 148 and 379 of the Code. With regard to appellant Wahed Ali Mollah, in respect of the charge under section 302/109 of the Code they were unanimously of opinion that he was guilty under section 304 (11)/109 of the Code for abetting the murder of Wahed Mridba only. They also found him guilty under sections 148 and 379 of the Code. They unanimously found that the said appellant was not guilty in respect of the charge under section 302/109 of the Code for abetting the murder of Rajab Ali. As regards appellants Khaleque Mollah and Golzar Hossain and the four other co‑accused they unanimously found them guilty under sections 147 and 397 of the Code.

5. Learned Sessions Judge accepted such unanimous opinion of the Assessors with this modification that he came to a finding that appellant Shahidullah Khan and Mojid Mollah were guilty under section 304 (1) of the Code. Furthermore, he also came to a finding that appellant Wahed Ali Mollah was guilty under section 304 (1)/109 of the Code. Accordingly, he convicted the said appellants under the said section and sentenced appellant Shahid ullah Khan and Mojid Mollah to suffer rigorous imprisonment of a period of ten years each under section 304 (1) of the Code. He also sentenced them to suffer rigorous imprisonment for a period of five years each under section 326/34 of the Code. He sentenced them to a fine of Rs. 100, in default, to rigorous imprisonment for a further period of six months each in respect of their con viction under section 148 of the Code. Under section 379 of the Code he sentenced them each to pay a fine of Rs. 250, in default to suffer rigorous imprisonment for a further period of one year. Appellant' Wahed Ali Mollah was sentenced to suffer rigorous imprisonment for a period of six years under section 304 (1)/109 of the Code. The said appellant was further sentenced to pay a fine of Rs. 250, in default, to suffer rigorous imprisonment for a further period of one year under section 379 of the Code. Under section 148 of the Code he was further sentenced to pay a fine of Rs. 100, in default, to suffer rigorous imprisonment for a further period of six months. Appellants Khaleque Mollah and Golzar Hossain and the four co‑accused named before were each sentenced to pay a fine of Rs. 50, in default, to suffer rigorous imprisonment for a period of three months under section 147 of the Code. They were also sentenced to pay a fine of Rs. 250 each, in default, to suffer rigorous imprisonment for a further period of one year under section 379 of the Code. Learned Sessions Judge further directed that the substantive sentences of rigorous imprisonment imposed on appellants Shahidullah Khan and Mojid Mollah should run concurrently. He also directed that out of the fines, if realised, Rs. 1,500 should be paid to the complainant and other co‑sharers in the land as compensation for the paddy and the two boats and Rs. 500 should be paid to P. W. 5 Maijudin Sardar for the loss and injury of his eyes. There was also a direction that out of the aforesaid money, i e., Rs. 1,500, a sum of Rs. 500. should be paid to the widow of the deceased Wahed Ali Mridha and to P. W. Joynal Mridha, grandson of Abdul Mridha, in equal shares, Rs. 500 to the complainant and P. W. Taleb Ali in equal shares and Rs. 500 to Akbar and Syed Ali in equal shares. prosecution case, briefly speaking, is as follows :

6. Abdul Mridha, Parashullah Mridha and Sadhu Mridha were three brothers whose heirs and successors are Haider Ali Mridha, Wahed Ali Mridha, Akbar Mridha and Taleb Mridha. The said three brothers were joint in mess and pro pcrty. After the death of Sadhu Mridha some lands were acquired in the names of Abdul Mridha and Parashullah Mridha in mouza Uttarchar Kalikapur. Lands in the said mouza were washed away about forty years ago and they re‑appeared after ten years. They were then surveyed in the year 1344 B.S. by the landlords. P. W. 19 Belaluddin Sarkar was the ameen. After such survey the heirs and successors of the original owners, namely, those belonging to the party of the complainant, took possession of the said lands. The mouza was again washed away 7/8 years ago and it reappeared two years thereafter. The lands were again surveyed and boundaries were demarcated by a Government ameen. The tenants of Uttarchar Kalikapur wished to partition the said lands and Belaluddin Sarkar demarcated the boundaries of the respective tenants and made over possession to them. As a result of this the complainant and his men took possession of the lands which fell to their share. Out of the said lands only two plots, which bear the numbers 449 and 451, were fit for cultivation and this portion of the lands would be approximately 9 bighas. The other portion of the lands possessed by them were not fit for cultivation. Complainant grew paddy in the said two plots in the month of Magh, 1364 B.S.

7. On Friday, the 16th of May, 1958 corresponding to the 2nd of Jaishtha, 1365 B.S., the complainant and his co‑sharers along with six labourers, namely, Rajab, Meghu, Kashem Ali Maijuddin, Gedu and Shahajuddin, went to the land in two boats to reap the paddy grown therein, that is, in plots Nos. 449 and

451. Having reaped the paddy for the whole day they could collect only 700 bundles and they loaded the same in the two boats and thereafter left the place and reached a place called Darichar Ghat at dusk. The distance between the place where the paddy was grown and the said ghat would be about one mile. On reaching Darichar Ghat Wahed Ali Mridha went in search of carts for carrying the bundles of paddy to his house No dart was, however, available in the night. So, he went home for the purpose of bringing some food for his men. At about mid‑night he came back to the boats with food which was prepared in his house. Wahed Ali Mridha himself took his meal some time after mid‑night after saying his esha prayer. Kashem Ali and Gedu went home and returned to the boats early in the morning.

8. At sunrise in the morning, i.e., on the 17th of May, 1958 two boats were seen coming from the south, in which there were 30/35 men including the appellant before us. Appellants Shahidullah Khan and Mojid Mollah were each armed with a gun and others were armed with lathis and various other weapons of offence. While the said two boats came to a distance of about 50 cubits from the boats of the complainant party which were tied to the land, appellant Wahed Ali Mollah enquired of the men of the complainant party as to the place from which the paddy was reaped. At this deceased Wahed Ali Mridha replied that the paddy was reaped from his land in the char. There upon some sort of a quarrel ensued between the parties and they indulged in abusing each other. Thereupon under the orders of appellant Wahed Ali Mollab; appellant Shahidulla Khan fired at deceased Wahed Ali Mridha injuring him in the abdomen. Wahed Ali Mridha fell down on the front portion of the other boat. Appellant Mojid Mollah then fired at deceased Rajab Ali who was also injured in the abdomen and fell on the ground from the boat. Thereafter both appellants Shahidullah and Mojid fired three more rounds from their guns as result of which Meghai, Kashem Ali, Maijuddin and Gedu received injuries of various kinds. The men belonging to the party of the com plainant got down and set up an alarm. At this the accused persons left the place and took away the paddy and the two boats belonging to the complainant by tying them to their boats. Some men of the locality came to the place of occurrence. Meghu, Kashem Ali, Hazrat and Maijuddin were then removed to the house of one Eku Mridha; Rajab Ali was removed to the house of the complainant Haider and Shahajuddin to the house of Akbar Mridha. Wahed Ali Mridha was removed to his own house. His condition was very serious and he died in the same afternoon. Haider Ali Mridha (P. W. 4) then proceeded to the thana which is at a distance of about 30/35 miles from his house and he lodged a first information report at 9 o'clock in the morning of the following day, namely, the 18th of May, 1958.

9. After completion of investigation and a preliminary inquiry by competent Magistrate the appellants with the four co‑accused were committed to the Court of Session where they were tried by the aforesaid learned Sessions Judge and convicted and sentenced to suffer various punishments as stated above.

10. These two appeals are directed against the convictions of the appellants and the sentences pronounced on them, as stated above. The four co‑accused named before have not filed any appeal.

11. At the hearing of these appeals Mr. Hamidul Huq Chou dhury assisted by Mr. Md. Shamsul Haq Chowdhury and Mr. Ahmed Hossain appeared for the appellants in appeal No. 534 and Mr. Abdus Salam Khah assisted by Mr. Serajul Huq appeared for the appellants in appeal No.

552. Abdul Aziz appeared for the State in both the appeals.

12. Mr. Choudhury has taken us through the judgment pronounced by the learned Sessions Judge as well as the entire evidence in this case. He has directed a two fold argument on behalf of the appellants in Appeal No. 534 of 1959. Firstly, he 'has submitted that the trial of the appellants was a mistrial because of the reception of inadmissible evidence, namely, (a) the first information report, Exhibit 1, in this case and (b) the statement made by the deceased Rajab Ali to the investigating officer in the course of the investigation in this case, which purports to be a dying declaration. Learned Advocate has further argued that the learned Sessions Judge also misdirected himself when he refused to consider Exhibit C., which is an order sheet of a revenue officer, as evidence in this case.

13. Mr. Abdus Salam Khan appearing on behalf of the appellants in appeal No 552 of 1959, adopted the arguments advanced by Mr. Hamidul Huq Chowdhury in this behalf.

14. The substance of the argument on behalf of the appel lants was that, the misreception of the aforesaid evidence and. the rejection of Exhibit C, had vitiated the trial. Mr. Chowdhury, therefore, asked us to direct a retrial of the appellants.

15. With regard to the question as to whether the first information report Exhibit 1, was inadmissible in evidence or not, Mr. Chowdhury has drawn our attention to a telegram, Exhibit A, which was received by the investigating officer shortly prior to the lodging of the first information report by P. W. 4 Haider Ali Mridha. One telegram, Exhibit 10, was sent to the District Magistrate and another, Exhibit A, to the officer‑in‑charge of the Bera Police Station. Exhibit A, reads as follows:‑ "Seven severly injured by gun shot (sic) at Darichar and Uttarchar Kalikapur of Bera P. S. Lives endangered immedi ate steps solicited unable to take hospital without police helper." And the other telegram, Exhibit 10, reads as follows : "Seven severely injured by gun shot (sic) at Darichar P. S. Bera lives endangered immediate steps solicited." Both the aforesaid telegrams purport to have been sent by P. W. 9 Joynal Mridha. We have already seen above that the aforesaid telegram, Exhibit A, was received by the investigating officer shortly prior to the lodging of the first information report which is impeached before us as inadmissible. The investigating officer Mr. Paniruddin Mondal, who has been examined as P. W. 29 in the case, has stated that the telegram appeared to him to be vague. After the first information report. Exh. 1, was lodged in the police station by P. W. 4, Haider Ali Mridha, he proceeded to the place of occurrence and started investigation. Mr. Chowdhury has argued that the information lodged by P. W. 4 Haider Ali Mridha was a statement which was recorded under section 161 of the Code of Criminal Procedure. According to him the investigation had started with the receipt of the said telegram.

16. Mr. Aziz has strenuously argued that the said telegram cannot be treated as first information report. That telegram was admittedly vague and conveyed practically no information to the investigating officer. He has contended that although the tele gram constitutes some information, the first information report which was lodged by P. W. 4 Haider Ali Mridha was really the information on which the investigation had started.

17. We need not dilate any further on this point. We held that the first information report lodged by P. W. 4 Haider Ali Mridha was the communication which became the basis for the starting of the investigation by the officer‑in‑charge of the Police Station. Exhibit 1 is really the first information within the meaning of section 154 of the Code of Criminal Procedure and we think that the same was very properly treated as the first information report by the learned Sessions Judge.

18. The next piece of evidence, which according to Mr. Chowdhury, is inadmissible as evidence, is the statement alleged to have been made by the deceased Rajab Ali to the investigating officer. The investigating officer has stated that he recorded the said statement under section 161 of the Code of Criminal Pro cedure. Mr. Chowdhury has therefore, argued that the said statement would be hit by the provisions of section 162 of the Code of Criminal Procedure, which prohibits the user of any such statement except in the manner specified in that section.

19. Mr. Aziz has argued that the provisions of section 162 of the Code of Criminal Procedure are not applicable to any statement falling within the provisions of clause (1) of section 32 of the Evidence Act. He has contended that subsection (2) of section 162 of the Code of Criminal Procedure categorically states that the provisions of the said section would not apply to any statement falling within the provisions of clause (1) of section 32 of the Evidence Act. Subsection (2) of section 162 of the Code of Criminal Procedure reads as follows: "Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1). of the Evidence Act, 1872, or to affect the provisions of section 27 of that Act."

20. We hold that the contention of the learned Advocate for the State must be upheld. A dying declaration, to which clause (1) section 32 of the Evidence Act applies, would not be hit by section 162 of the Criminal Procedure Code. In this case, however we find that the statement recorded as a dying declaration was not received into evidence. In his examination‑in‑chief the investigating officer (P. W. 29) has given evidence as regard certain statement made to him by the deceased Rajab Ali. We, however, think it would be safer to leave such statement out of consideration in our assessment of the evidence in this case.

21. With regard to the grievance of the learned Advocate for the appellants that the order‑sheet of a revenue officer, which has been marked as Exhibit C in this case, was not received into evidence, Mr. Chowdhury has drawn our attention to the follow ing portion of the judgment pronounced by the learned Sessions Judge:‑ "The copy of the order‑sheet filed by the defence, Exhibit C; shows that one Jamiruddin Ahmed filed a petition before the Revenue Officer for settlement of khas land in mouza Uttar Char Kalikapur and Dakshin Char Kalikapur on 5th May, 1957. This was just after the re‑appearance of the mouzas. Some tenants of the mouza filed objections. The order‑sheet cannot be used as evidence to prove the facts stated in the orders. So this order‑sheet proves nothing for the defence."

22. From the above it would appear that the learned Sessions Judge did receive Exhibit C into evidence in this case and he very properly assessed its value. There is, therefore, absolutely no substance in the contention of the learned Advocate for the appellants in this behalf.

23. In any event, we think, that no case has been made out by the appellants for their retrial. Even if any inadmissible evidence has been taken in this case, we will dispose of the appeal by eliminating such evidence for our con sideration.

24. In this connection Mr. Aziz has drawn our attention to the oft‑cited case of Abdul Rahim v. Emperor (AIR1946PC82). In that case the Judicial Committee of the Privy Council was considering a case where there was a trial by a Jury who were the judges of fact. Lord Macmillan, in delivering the judgment of the Board, has made the following observation (at page 85):‑ "The first question admitted relates to the effect of the misreception of evidence. It has been found by the High Court that in the present case material evidence was improperly ad mitted. What are the powers and what is the duty of the High Court in such circumstances? It was contended for the appel lant that the evidence improperly admitted might have so seriously prejudiced the minds of the jury as to have brought about a failure of justice and that he was entitled on a new trial to have the verdict of a Jury on proper evidence. To this submission section 167, Evidence Act, in their Lordships' opinion affords a complete and conclusive answer. The improper admission of evidence is thereby expressly declared not to be a ground of itself for a new trial. The Appellate Court must apply its own mind to the evidence and after discarding what has been improperly admitted decide whether what is left is sufficient to justify the verdict. If the Appellate Court does not think that the admissible evidence in the case is sufficient to justify the verdict then it will not affirm the verdict and may adopt the course of ordering a new trial or take whatever other course is open to it. But the Appellate Court if satisfied that there is sufficient admissible evidence to justify the verdict is plainly entitled‑ to uphold it." In the present case the appellants were tried by the learned Sessions Judge with the aid of Assessors. The learned Sessions Judge was the judge of fact. He was bound to consider the opinion of the Assessors but not bound to accept the same. The appeal before us is also an appeal on fact as well as on law. The entire record of the case is before us. In our opinion, the appeal must be disposed of by us on the evidence on record after eliminating any inadmissible evidence, which has been received in this case. We have, however, seen that the learned Advocate for the appellants has failed to point out any such evidence to us.

25. We, however, do not think that we would be justified in sending the case back for retrial, because, according to the learned Advocate for the appellants, the appellants were not, properly defended in the trial Court.

26. Mr. Chowdhury then addressed us on the merits of the case somewhat faintly and half‑heartedly although at a very great length. Here again, his argument is two‑fold. In the first places, relying on the evidence of the medical man who conducted the post‑mortem examination on the body of deceased Wahed Ali Mridha, he has contended that the occurrence alleged by the prosecution must have taken place earlier in the night and not in the early hours of the morning. Secondly, he has argued that the occurrence must have taken place somewhere else in the actual land from which the paddy was reaped and not at the ghat as alleged by the prosecution. The basis of this argument is the injury found by the medical man on the head of the deceased Waheyd Ali Mridha.

27. P. W. 20 Dr. Sadrul Hasan, who conducted the post mortem examination on the deceased Wahed Ali Mridha, has stated in his deposition as follows "The stomach of Wahed contained about 2 oz. of partially digested rice etc. A normal healthy person takes 2 to 3 hrs. to digest rice. The organs of Wahed were healthy before the injuries. He might have been injured within 2J to 3 hours after taking food." On the aforesaid statement made by the medical man, Mr. Choudhury has argued that the occurrence must have taken place in the night because, according to him, the deceased must be taken to have taken his last meal some time early in the night.

28. On this point we have the evidence of P. W. 3 Duli Nessa Bibi, widow of the deceased Wahed Ali Mridha. She has deposed that the deceased came and took food for his men, which, she had prepared in the night. The consistant evidence in this case is that Wahed Ali Mridha took his meal shortly after mid night. We have no reason to reject such evidence. The evidence of the prosecution witnesses that the deceased had taken food for his men and that he himself had taken food after mid‑night was criticised on the ground that none of these witnesses had said in his earlier statement, namely, either in the first informa tion report or in the statement made to the investigation officer, that the deceased had gone home to take food for his men and that he himself partook of the meal after mid‑night. Mr. Choudhury has taken us though the evidence of the witnesses who have given such evidence. The attention of all these witnesses was directed to their statements made before the investigating officer. It appears that they all failed to say so before the investigating officer. We do not think that such omission is of any importance whatsoever. When the investigating officer was taking the statements of the witnesses, the actual occurrence was, the important point to be considered. The question as to what time the deceased had taken his meal was not a very pertinent question at that time. It is not, therefore, surprising that these witnesses did not state this fact at the time of such examina tion. We do not, therefore, propose to disbelieve these witnesses merely because they did not at an earlier stage make the state ment to the effect that the deceased had come home to take food for his men and that he took his meal after mid‑night. We have also no reason whatsoever for disbelieving the evidence of P. W. 3 Duli Nissa Bibi, widow of the deceased Wahed Ali Mridha.

29. We should also like to observe that it is impossible to dogmatise about the number of hours which an individual person will take to digest food. This will depend upon various factors some of which may not be known to the medical man. It is also common knowledge that if food is taken at mid‑night or thereafter, it is not so easily digested as food taken in the early part of the night. It is also common knowledge that if one is in a perturbed state of mind, one's digestion is disturbed. We do not, therefore, think that the finding of some partially digested rice in the stomach of the deceased Wahed Ali Mridha negatives the pro secution case with regard to the time of the occurrence.

30. Mr. Choudhury then drew our attention to the following evidence of the medical man "One contused wound with swelling and ecchymosis of the right half of head, that of neck, face and both eye‑lids of right eye." Then again he' has further cited the following portion of the deposition of the medical man ; "On dissecting injury No. 3 the scalp was seen extravosated with blood . . . . . . . This injury was caused by a blunt weapon coming in compact with the right side. It might have been caused by a fall on a hard substance." According of Mr. Choudhury, after receiving the wound the deceased Wahed Ali Mridha must have fallen in water and, therefore, he could not have received injury No.

3. On this he has built the thesis that the deceased must have fallen terra firma. Thus according to the learned Advocate for tae appellants, the occurrence must have taken place in the paddy field or some where else but not at the place as alleged by the prosecution.

31. We may dispose of this point by saying that a number of witnesses have consistently deposed that, after receiving the gun shot injury, the deceased Wahed Ali Mridha fell down on the boat next to the one where he was wounded. In criticising such evidence Mr. Choudhury has drawn our attention to the fact that these witnesses did not state before the investigating officer that the deceased had fallen down on the next boat after receiving the injuries on his person. We might again point out that this point was not of any importance at the time when the witnesses were being examined by the investigating officer. The whole attention of the witnesses was directed to the main occurrence itself. We, therefore, do not purpose to reject their evidence because they have omitted to state this fact before the investigating officer.

32. After discussing the points canvassed before us by the learned Advocate for the appellants we would now proceed to examine the entire evidence which has been placed before us. . The eye‑witnesses to the occurrence are P. W. 4 Haider Ali Mridha, P. W. 5 Moyezuddin Sardar, P. W. 6 Hazrat Ali Shaikh, P. W. 7 Kashem Ali Khan, P. W. 8 Akbar Ali Mridha and P. W. 9 Joynal Mridha. Mr. Aziz has very rightly pointed out that the evidence of all these witnesses is impressive and there is a ring of truth in it. The witnesses have given straightforward evidence, which has been accepted by the trial Court and we also accept the same. We think that the evidence of these witnesses is reliable. P. W. 4 Haider Ali Mridha has been substantially corroborated by his own first information report, Exh. 1, P. Ws. 5, 6, 7, 8 and 9 have been further corroborated by the discovery of a pellet at the alleged place of occurrence by P. W. 10 Rustamali Bepari. P. W. 10 Rustamali Bepari is a completely independent witness and the defence has not been able to show any reason as to why this witness should be giving false evidence against the appellants in this case. Then again, all the aforesaid witnesses have been further corroborated by P. W. 11 Eku Mondal, P. W. 12 Bahadur Sk. and P. W. 13 Torab Ali Mondal. These witnesses are also independent witnesses. They came shortly after the occurrence. P. W. 13 Torab Ali Mondal also saw the complainant and his men in the night. The evidence of the aforesaid witnesses conclusively establishes the prosecution case against the appellant. So far as the possession of the said two plots of land by the complainant and his men are concerned, there has been hardly any serious challenge by the defence. The evidence of P. W. 19 Belaluddin Sarker corroborates the evidence of the prosecution witnesses that they possessed the land. Mr. Choudhury has characterised P. W. 19 Belaluddin Sarker as a busy body. We, however, do not think that there is any impro bability in the evidence given by him and we accept such evidence. Then again, there was no challenge to the evidence that the complainant and his men cut the paddy from the aforesaid land. We have already seen that the evidence of P. W. 13 Torab Ali Mondal corroborates the statement of the witnesses that the complainant and his men were coming with the paddy on two boats.

33. Having been taken through the entire body of the evidence in this case, the impression that we have gathered from it is that the defence merely threw some random bricks at the prosecution witnessess ; without putting to them what the case of the appellants, was. Almost all the witnesses were subjected to rather heavy, but pointless, cross‑examination. The defence did not succeed in shaking the credit of these witnesses, and, while Mr. Hamidul Huq Choudhury was addressing us on the merits of the case, we got the impression that he was arguing on behalf of a defendant in a suit for declaration of plaintiff's title and confirmation of possession in respect of the suit land. There was a suggestion that the occurrence took place earlier than the time which is alleged by the prosecution. We have already seen that this suggestion has absolutely no substance in it. The argument that the occurrence must have taken place in the land belonging to the parties is based on the injury which was found on the bead of the deceased Wahed Ali Mridba. It appears from the evidence in this case that the deceased had fallen on a boat after receiving the said injury and this fact is a sufficient explanation for the aforesaid injury.

34. Our attention was drawn to certain omissions made by the witnesses at an earlier stage with regard to facts which were not of any consequence when the earlier statement was made. We have already discussed that point.

35. We, therefore, do not have slightest hesitation in accept ing the evidence of the prosecution witnesses. However, for greater safety on the question of participation of individual appellants in the occurrence, we will rule out of consideration the evidence of witnesses with regard to participation it they had not stated the names of such parties at a stage prior to their deposition in the trial Court.

36. With regard to Appeal No. 552 of 1959 preferred by Khaleque Molla and Golzar Hussain, Mr. Abdus Salam Khan, after having adopted the arguments advanced by Mr. Choudhury, has separately addressed us as follows.

37. Regarding Khaleque Molla, the evidence with regard to participation by him in the occurrence comes from P. W. 4 Haider Ali Mridha, P. W. 7 Kashem Ali Khan, P. W. 8 Akbar Ali Mridha, P. W. 9 Joynal Mridha, P. W. 11 Eku Mondal, P. W. 12 Bahadur Sk. and P. W. 13 Torab Ali Mondal, Mr. Khan has pointed out that P. Ws. 7, 11 and 12 did not name him when they were examined by the investigation officer in course of investigation in this case. On the point of participa tion of Khaleque Molla we would, therefore, eliminate the evidence of P. Ws. 7, 11 and 12 only because they have not named this appellant as one of the participants in the occurrence. We do not disbelieve their evidence out of consideration. Even upon such elimination we have the evidence of P. W. 4, 8, 9 and 13 against Khaleque Molla. We have no reason to disbelieve the evidence of these prosecution witnesses when they had said that Khaleque Molla was one of the person who had gone to the place of occurrence with the rest of the appellants and had taken away the paddy loaded in boats from the possession of the complainant, and his men.

38. With regard to appellant Golzar Hossain's participation in the occurrence, we have the evidence of P. W. 4 Haider Ali Mridha, P. W. 8 Akbar Ali Mridha, P. W. 9 Joynal Mridha, P. W. 11 Eku Mondal, P. W. 12 Bahadur Sk. and P. W. 13 Torab Ali Mondal, P. W. 4 who had lodged the first information in this case, did not name Golzar Hossain in the said report. Similarly, P. Ws. 11, and 13 did not name this appellant in their statements to the investigating officer. For reasons, which we have already stated above, was think it would be safer to eliminate the evidence of P. Ws. 4, 11, 12 and 13 with regard to the participation of this appellant in the occurrence. No such omission has been pointed out in respect of the evidence of P. Ws. 8 and 9 with regard to the participation of Gulzar Hossain, and we have no reason to disbelieve the evidence of P. Ws. 8 and 9.

39. We, therefore, think that the convictions of appellants Khaleque Molla and Golzar Hossain under sections 147 and 379 of the Pakistan Penal Code are fully justified. The sentences pronounced on them are not also excessive.

40. With regard to appellants Shahidullah Khan Mojid Mollah and Wahed Ali Molls in Appeal No. 534 of 1959, from the findings arrived at by us we think that, except to the extent indicated below, the convictions of these appellants have been fully justified. It seems to us that the learned Sessions Judge has given the utmost benefit to appellants Shabidullah Khan and Mojid Molla in convicting them under section 304 (1) of the Pakistan Penal Code and also to appellant Wahed Ali Mollah in convicting him under section 304 (I) 109 of the said Code.

41. Mr. Hamidul Haq Choudhury has however, drawn our attention to the medical evidences in this case. It appears from the injuries which were found by the medical man on the persons of the deceased and the injured persons that there assailants had really tried to aim at the lower parts of the bodies. In these circumstances, giving the appellants Shahidullah Khan and Mojid Mollah further benefit of doubt, it is possible to hold that these appellants caused the injuries on the persons of the deceased with the knowledge that such injuries were likely to cause death without their having intended to kill the deceased. In these circumstances, it would perhaps be safer to convict them under section 304 (II) of the Pakistan Penal Code. We, therefore, alter the conviction of appellants Shahidullah Khan and Mojiai Mollah from one under section 304 (I) into one section 304 (Il) of the Pakistan Penal Code and reduce the sentence imposed on them to rigorous imprisonment for a period of seven years each. For the same reason, we alter the conviction of appellant Wahed Ali Mollah from one under section 304 (1) 109 of the Pakistan Penal Code and reduce the sentence imposed on him to rigorous imprisonment for a period of four years. The rest of the order passed by the learned Sessions Judge are maintained.

42. With the modification of the convictions of appellant Shahidullah Khan, Mojid Mollah and Wahed Ali Mollah and the sentences pronounced on them, the appeals before us are dismissed. The orders staying realisation of fines are vacated. HASAN, J.‑I agree. A. H. Order accordingly.