P L D 1967 Dacca 528 (PLP)

MURSHED, C. J.‑The point raised in this reference can be best understood on a reference to the facts of the case, which may be briefly stated as follows: One Abu Siddique Choudhury (P. W. 2), a contractor under the Water and Power Development Authority, East Pakistan, collected a sum of money to the tune of Rs. 4,200, and on the 13th of December 1960, hired a boat, which is known as Sampan, for carrying him to another point in the same district. He carried along with him, apart from the said sum of money, two bags of rice, a wrist watch and various other things on his person. The boatman, Md. Meah, after reaching a point in the Bay of Bengal, did not proceed any further. On being required to proceed the boatman said that the weather would not permit any further onward journey. Accordingly, the Sampan was anchored at Patenga and the complainant, Abu Siddique Choudhury, returned to his house in Chittagong. Next morning at about 7 a.m., Abu Siddique Choudhury boarded the Sampan from Patenga and proceeded towards the sea accompanied by thirty or forty other Sampans. Abu Siddique Choudhury fell asleep in the boat and, at about 11 a.m. when he woke up, he found that his Sampan was sailing in the sea all by itself. Obviously, his Sampan had taken a different course to that followed by the rest of the boats. On his query the boatman said that his sail being a small one, other Sampans had gone ahead. At this juncture Abu Siddique Choudhury saw two other Sampans at some distance from his Sampan, which was proceeding in the direction of the said two Sampans and not towards the shore. He then peremptorily directed the boatman to proceed towards the shore. By the time the Sampan had reached a point to the south‑west of the river Shanka a Sampan came upon his boat carrying six or seven persons who have been described by the complainant as dacoits. When the Sampan belonging to the alleged dacoits touched Abu Siddique Choudhury's Sampan; two persons, armed with daos, came to the Sampan of the complainant and demanded his wrist watch. The wrist watch was taken away by them. The complainant refused to part with the money demanded of him, and on such refusal, they ransacked his boat and took away the said sum of Rs. 4,200 from him by force. Certain articles were left in the boat, including the two bags of rice. When the said persons were leaving, they were heard to whisper something into the ears of the boatman who, on the query of the complainant, said that the decoits had taken away the sails and the oar of the Sampan which, thereafter, drifted into the sea without any sail or oar. A little later another Sampan towed the complainant's Sampan to Khathkal, where the complainant landed and left for the house of one Suleman Bali asking the boatman to ply to Sanua. On reaching the house of Suleman Bali (who was examined as P: W. 4 in the Committing Court, but could not be examined in the trial Court, as he had left for the performance of Haj), he narrated the occurrence to him in presence of one Nur Muhammad, a member of the Union Council, and several other persons. He gave a description of the dacoits who had robbed him of his belongings. The boatman, however, did not proceed to his destination as directed by the complainant. Consequently, a search was made for him. Eventually, the boatman was found, who, when confronted, admitted that he had sold one bag of rice and handed over a sum of Rs. 40 as the sale proceeds thereof to the complainant. The complainant also went to the house of Khan Bahadur Badi Ahmad Chowdhury, Chairman of the Union Council, who died thereafter. On the 16th of December 1960, a first information report was submitted in writing to the Officer‑in‑Charge, Benshkhali P. S. through a Dafadar. Upon certain information the two appellants were arrested, but their companions could not be secured. The two appellants were identified at a test identification parade. After the completion of investigation and a preliminary enquiry by a Magistrate of the First Class, the appellants were committed to the Court of Sessions to stand their trial under section 395 of the Pakistan Penal Code. The boatman, Muhammad Meah, was also tried along with them, under section 395/109 of the said Code, for abetting the crime of dacoity. The three accused persons pleaded not guilty to the charge. The trial was held with the aid of three assessors, who gave a divided opinion against the appellants by a majority of two against one. They were, however, unanimously of opinion that Muhammad Meah was not guilty of the charge levelled against him. The learned Assistant Sessions Judge, on an appraisal of the evidence in the case accepted the majority opinion of the Assessors and convicted the appellants under section 395 of the Penal Code. He sentenced each of them to suffer rigorous imprisonment for a period of five years. Muhammad Meah was acquitted of the charge under section 395/109 of the Code. The aforesaid appellants, namely, Hachi Meah and Nowsha Meah, preferred an appeal against their conviction and the sentences imposed upon them. When the appeal was heard by a Division Bench of this Court, a point was made to the effect that inasmuch as only two persons were tied on a charge under section 395, the said charge was bad in law because it did not specify that there were three or more persons as co‑participants in the crime. It was submitted that the trial itself was vitiated, as the charge made no reference to the requisite number of persons, a minimum number of five being an essential ingredient of section

395. Appellants asked to be acquitted on this ground apart from the merits of this case. This contention finds some support in a decision of this Court in the case of Akkel Ali v. Crown (1 D L R 175). The report of this case is very scanty, but it shows that a Division Bench of this Court has held that inasmuch as the charge under section 395, in that case, did not specify the minimum number of five persons as participants in the offence, the charge was bad in law. The conviction of the appellants was set aside and no retrial was directed. In the aforesaid case, the charge, as framed by the Court of Sessions, named three persons, who were accused of having committed dacoity. It was held that as an offence under section 395 requires a minimum of five persons as participants, the charge as framed which merely recited that only three persons took part in the occurrence could not be held to be valid under law. In the case before us, the Division Bench which had, initially, heard the appeal dissented from the wide proposition, as stated above, and made a reference to a Full Bench. Although no specific point has been formulated, it is clear from the order that was passed that the point for our considera tion is, whether a charge, which merely accuses less than five persons of having committed an offence of dacoity without specifying that there were other participants in the offence, so as to make up, at least, a minimum of five persons, is bad in law and whether the trial would be vitiated. Furthermore, whether in such a case there should be an acquittal of the accused persons. Before we answer the points formulated above, it is necessary to look into the provisions of section 221 of the Criminal Procedure Code and its subsequent sections, namely, 222, 224, 225, 226 and

227. We would like to set out the relevant provisions of section 221, which reads thus "(1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal conditions required by law to constitute the offence charged was fulfilled in the particular case. There is no manner of doubt that the requirement of law, is that a charge should state the offence committed by the accused and mention the specific name of the offence if any specific name has been given to it by law. If the law does not give any specific name of the offence particulars should be set out to give requisite notice to the accused. In particular, this section provides that, when a specific offence is alleged to have been committed by the accused the necessary ingredients of the said offence would be impliedly imported to the charge, Having regard to the language of section 221, it is obvious that the charge as framed in this case is strictly in accordance with law. The charge reads as follows: "That you, on or about the 14th day of December 1960, at Bay of Bengal south from the mouth of Shanka river between Cohira and Premashia under Banshkhali P. S. you committed dacoity in the Sampan of Muhammad Mea which was hired by informant Abu Siddique Choudhury for going to Pakua Magnama and thereby committed an offence punishable under section 395 of the Pakistan Penal Code, and within the cognizance of the Court of Sessions. And I hereby direct that you be tried by the said Court on the said charge." It is true to say that the charge does not specify the number of persons, who are alleged to have participated in the offence, but it distinctly mentions that appellants were accused of having committed dacoity. This postulates that there were five or more participants in the offence. This is the necessary implication of the provisions of section 221, as quoted above, perusal of section 222, and, onwards to section 227 of the Criminal Procedure Code, will make it clear that even if there is a defect in the framing of the charge, the trial would not be vitiated if, on the particulars as mentioned and on the evidence as led in Court, the accused has had sufficient notice of the accusation against him, that is to say, it has to be seen whether the accused has been pre-judicated in the trial. It is clear that the charge has to be looked along with the actual conduct of the trial as disclosed by the evidence led against the accused. Under section 225 of the Code the Court is required to see whether the accused has been misled by the charge as framed. Furthermore, it has to see whether the defect in the charge has occasioned a failure of justice. In the present case, we not only find that the charge itself has been framed in accordance with law, but we further find that, even if there had been a defect in the framing of the charge, the evidence of the case as well as the cross‑examination that was directed on behalf of the appellants, leaves no room for any doubt that the appellants had full and sufficient notice of the accusation against them. It cannot, therefore, be said that the trial had occasioned a failure of justice because the appellants were misled by the charge. The definite evidence of the complainant is that there were six or seven dacoits. The question that no case could be made out against 3 or 4 others is irrelevant as to the legality of the trial itself. It is interesting to note that in a later case, namely, Akrabuddin Hazi and 3 others v: The Crown (2 D L R 241), another Division Bench of this Court had queried as to how a charge would be framed, if there were only four persons to be tried under section 395 of the Penal Code. There are a number of cases decided by Courts in Pakistan as also decisions of the Privy Council which lend support to the proposition which we have stated above. The proposition that a defective charge does not by itself vitiate a trial unless there has been a failure of justice is well settled. There is, however, a decision of the Calcutta High Court, which is directly applicable to the case. In the case of Emperor v. Ram Chandra Roy (I L R 55 Cal. 879), a Division Bench has observed: "The next point Mr. Bose has argued is that the charge does not set out that there were five or more persons engaged in the riot and hence there can be no case of rioting. It was not necessary in a charge of rioting to set out the allegation that there were five or more persons' actuated by a common object. Rioting is an offence with a specified name and it is sufficient to describe the offence by that name and that name only. Section 221, clause (2) of the Criminal Procedure Code clearly contemplates a case of this description and was enacted to meet a case of this kind. Where a person is charged with a rioting it means that prosecution alleges that all the necessary ingredients constituting the offence of rioting are present. It is not necessary for the prosecution to set out what these ingredients are." It is true that the aforesaid case relates to a charge of rioting, but the principles involved are exactly the same as those involved in this particular case. The aforesaid decision has been followed in a number of cases by Courts in India. We might refer to the case of Narayan Dinba v. Emperor (A I R 1947 Nag. 57), where the relevant observation is at page

59. Our attention was drawn by the learned Deputy Legal Remembrancer to a decision of the Supreme Court of India in the case of Ram Shankar Singh and others v. The State of Uttar Pradesh (P L D 1957 S C (Ind.) 79). That case, to our mind, has no manner of application to the points under our discussion except in so far as it provides an authority for the proposition that, where the accused have been charged under section 395 of the Penal Code, the Court may, if the evidence so warrants, alter the conviction to one under section 392 of the Code. In the aforesaid case what happened was that six persons were specifically named as participants in an occurrence and charged under section 395 of the Code. On the evidence as led in Court the participation of some of them could not be proved. The question then arose as to whether, when the participation of a minimum number of five has not been proved, the conviction of the remaining accused under section 395 of the Code would be justified. It is clear that the wide and unqualified proposition as has been laid down in the case of Akkel Ali Molla v. The Crown is not an accurate statement of the law. We hold that where less than five persons are tried under section 395 of the Pakistan Penal Code, the charge is not bad,' if it fails to specify the minimum number of persons requisite) for commission of dacoity, but definitely alleges that the accused have committed an offence of dacoity under section 395 of the) Penal Code. We further held that even if the charge is defective the trial is not vitiated unless there has been a failure of justice by reason of the fact that the accused did not have sufficient notice of the actual accusation against him. We now turn to the appeal itself because, on this reference, we propose to dispose of the entire appeal instead of sending the same back to the referring Division Bench, having had the advantage of full arguments advanced by the parties before us. The complainant Abu Siddique Choudhury was examined as P. W. 2 in this case and has given evidence as set out above. He has been corroborated in material particulars by P. W. I Noor Muhammad Choudhury, P. W. 3 Amir Meah Choudhury and by the evidence of Soleman Bali as given in the Committing Court, and as received in the trial Court under section 33 of the Evidence Act. We have also the evidence of the Magistrate, who conducted the test identification parade as also that of the investigating officer. The complainant Abu Siddique Choudhury is a respectable witness, who carries on business as a contractor. From the evidence in this case it appears that he bears no animus against the appellants whom he did not know previously. No enmity has been suggested on behalf of the appellants. The occurrence itself has not been challenged and, in any event, there is over whelming evidence to establish the same. The position, therefore, is, that the occurrence as alleged by the prosecution has been fully proved. The next question is, whether the allegations against the appellants have been proved. If so, what is the offence committed by them. We have no good reason for not accepting the evidence of the complainant, but it has to be examined whether, in the light of the entire evidence, his evidence can to safely acted upon. So far as the appellant Nowsha Meah is concerned, the evidence against him may be stated thus: The occurrence has been fully proved and the complainant, having no reason to falsely implicate him, must be held to bear no enmity against him. The occurrence took place in broad day‑light. Two persons with dangerous weapons had set upon him and had taken away valuable properties from him. The possibility of his remember ing his assailants is strong. The boatman, however, soon after the occurrence named the assailants and one of the persons named was appellant Nowsha Meah, who was identified by the complainant Abu Siddique Choudhury. It is true that the identification parade was held nearly three months after the occurrence. This imposes a duty of caution, but one fact, which, in our opinion, is decisive, is that he was named then and there by the boatman. The evidence of the complainant in this behalf is corroborated by his statement in the first information report. The chain of circumstances as well as the evidence in this case leaves no room for any doubt that the allegation against this appellant has been fully established But, is he guilty under section 395 of the Pakistan Penal Code? From the evidence it appears that there were 5 or 6 persons in the boat belonging to the appellants. But, only the appellants set upon the complainant in the boat occupied by him. No overt act is either alleged or proved against any other person. One has to remember that the Sampan alleged to be occupied by the aforesaid 5 or 6 persons was a public conveyance and one cannot eliminate the possibility of other persons in the Sampan being merely co‑passengers of the accused persons and not their associates. It is interesting to note that there is no allegation that the said persons even left the Sampan from which the appellants came or that they did anything, which may connect them with the crime alleged to have been committed by the two appellants. It cannot, therefore, be held that they were participants in the crime. In these circumstances, we alter the conviction of appellant Nowsha Meah under section 395 into one under section 392 o the Pakistan Penal Code. Such a course is permissible under the law. We may point to the provisions of sections 237 and 238 of the Code of Criminal Procedure. We now turn to appellant Hachi Meah. The evidence against hits is similar, but there is a vital difference, namely, that whereas only two persons have been mentioned as participants in the offence, the boatman has only named Nowsha Meah and not this appellant, that is, Hachi Meah. He named somebody else other than accused Hachi Meah. At one place, the second person was described as Mofazzal Meah. Having regard to the fact that the active participants have been stated to be only two persons and also having regard to the divergence in the name of the second person, it is unsafe to rely upon the sole evidence as to identification of Hachi Meah by the complainant at a distance of three months from the date of occurrence. The fact remains that the boatman did not name Hachi Meah, but named some body else. We, therefore, think that it is unsafe to affirm the conviction of this appellant, namely, Hachi Meah, under section 395 of the Pakistan Penal Code. Before parting with this case, we would like to deal with the boatman of the Sampan hired by the complainant namely, Muhammad Meah, who was acquitted of the charge under section 395/109 of the Penal Code. We feel that his case has been perfunctorily dealt with by the learned Assistant Sessions Judge. There is a strong chain of circumstantial evidence which points to the complicity of this accused in the crime alleged to have been committed by the appellants. It was the duty of the trial Court to examine all the evidence against this accused. We were inclined to issue a Rule nisi calling upon him to show cause why his acquittal should not be set aside, but having regard to the fact that five years have already elapsed from the date of occurrence, we feel that no useful purpose would be served by directing his retrial at this late stage. The result, therefore, is, that we alter the conviction of appellant Nowsha Meah under section 395 into one under section 392 of the Pakistan Penal Code. As he has already served more than two years, we feel that ends of justice would be sufficiently met if the sentence of five years' rigorous imprison ment imposed upon him is reduced to the period already served by him and we do so accordingly. We direct that he be set at liberty forthwith if not required in connection with any other matter. With regard to appellant Hachi Meah, we set aside his conviction under section 395 of the Penal Code and sentence passed upon him thereunder. We acquit him of the charge levelled against him and direct that he be set at liberty forthwith, if not otherwise detained in connection with any other matter. This appeal is thus disposed of in terms of the orders made above. The points which arise in this reference have already been answered as mentioned above. SIKANDAR ALI, J.‑I agree. SALAHUDDIN AHMED, J.‑I agree. S. Q. Reference answered. Appeal partly allowed.