P (PLP)

ELLIS, J.‑

This is an appeal by three persons Sultan Ahmed, Siddiq Ahmad, and Dudhu Meah by name. They were all convicted under section 147 of the Penal Code on an improperly drawn up charge and sentenced to rigorous imprisonment for 2 years each. Sultan Ahmed was also convicted under the second part of section 304 of the Penal Code and sentenced for five years, the sentence to run concurrently with that imposed under section

147. Dudhu Meah was also convicted under section 303 and awarded an illegal sentence of rigorous imprisonment for two years, that sentence also to run concurrently with the two years imposed under section 147 of the Code. The case arises out of an occurrence which took place on the 10th November, 1947. At ten o'clock on the morning of that day, one Sheikh Ahmed together with his two sons Khaij Ahmed and certain hired labourers Sattar and Laltu went to reap paddy on a certain plot of land. After they had completed the harvesting of a part of the crop, they found to their surprise that the appellants with other persons to the number of 20 or 22 came to the spot armed with lath's. Of their number appellant Sultan Ahmed questioned Khaij Ahmed as to why he was reaping the paddy and then without waiting for a reply dealt him a lathi blow on the head. Khaij Ahmed fell down and the other accused promptly began to beat him. His father Shaikh Ahmed intervened and he too was dealt blows and fell to the ground. The appellants then carried away the crop that had already been cut by the complainant and his labourers. Khais Ahmed was so seriously injured that he was removed first in a Sampan and then in a cart to the Feni Hospital where he and his father were both admitted as indoor patients on the night of 10th November, 1947: Khaij's condition grew critical and so the medical officer sent a requisition to the Sub‑Divisional Magistrate asking for arrangements to be made for recording his dying declaration. That declaration was recorded by Maulvi Ali Hussain Bhuiy the Sub‑Deputy Magistrate at 7‑15 p. m. an the 11th November, 1947. Shortly after the dying declaration had been recorded the Sub‑Inspector of Feni thana Abdul Gafur Biswas came to Shaikh Ahmed and took his statement at 7‑30. p. m. on 11th November, 194:

7. The statement so recorded was convert ed into a first information report at 5‑30, p. m. on 24th November, 1947 and subsequently at 5 a. m. on the 16th November, 1947 Khaij, died. A police' investigation followed and the result was that the appellants were committed for trial before the Sessions Judge of Noakbali and actually were tried by him with the aid of a jury. Mr: Fazlul Huq who has appeared before us on behalf of the appellants stresses two points. The first one relates to the impro per admission of evidence recorded in the committing Court under the provisions of section 288 of the Code of Criminal Procedure. The second charge levelled by Mr. Fazlul Huq against the charge as delivered by the learned Sessions judge. relates to the strong language, in which the learned Sessions judge addressed the jury with regard to the recorded evidence and the manner in which he placed before them as facts matters on which they were required to form their own opinions. It is unfortunate that in this case the learned Sessions judge marred an otherwise ‑ a good charge by the manner in which he discussed; the evidence. No exception can be taken to his state ment of the prosecution case and to his interpretation of the law to the Jury but when he comes to discuss the evidence, he falls far below the standard which he had set for himself at the beginning of the charge. To take Mr. Fazalul Huq's first objection, there, is no doubt that the learned Session, Judge erred grievously in law when he allowed‑ the defence to put, in under section 288 of the Code the statements of nine witnesses who were examined and declare hostile in the committing Court. As the learned Sessions Judge should know by this time section 288 provides that the evidence of witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding judge, if such witness is produced and examined, be treated as evidence in the case for all purposes, subject to the provision's of the Indian Evidence Act, 1872. Chapter XVIII ‑ deals with the enquiry' into cases triable by the Court of Session or High Court‑ and therefore section 988 allows evidence recorded in such an enquiry to be put in and treated as evidence in the Sessions trial provided such witness is produced and examined. There is no provision of law which allows a Sessions judge to take in under section 288 the evidence of witness in the committing Court when that witness 15 neither produced nor examined in the Court of Sessions. On behalf of the Crown, it has been argued that the statements of these hostile witnesses were admitted under section 288 of the Code at the instance of the defence and if anyone was prejudiced thereby, it is the prosecution. We are by no means sure that this is the case. It may well be that the production of the statements of so many witnesses declared hostile in the Court below by the defence recoiled on the heads of the defence and created an impres sion in the minds of the jury in favour of the prosecution. With, regard to Mr. Huq's second accusation, it is unfortunate that the learned Sessions judge permitted himself to be carried away by his personal feelings and gave expression, in too emphatic language, to observations which should not have found place in his charge to the Jury placing before them, as proved facts, matters which they as jury were called upon to decide. We may instance the following extracts from his charge " A few days before the Magisterial enquiry commenced at Feni according to Sheikh Ahmed, these village Matbars held a sitting and induced complainant not to proceed but as the case had to go on these village heads, who fully saw the occurrence came to the Court as prosecution witnesses but to the surprise of all perhaps they in their frantic effort smashed the case to save the culprits deposed falsely and as many as 8 P. Ws. (P. Ws. 2 to 10) in the lower Court simply said that they did not see the occurrence and knew nothing. The Court Inspector was forced to declare each of them as hostile and some were cross‑examined if they had seen everything, but it was all in vain. So great was the companion compassion. (these village heads and so great was their pertinency in their desire." In addition to the emphasis given by the Sessions judge to his remarks in the extract which is just quoted, he assumes that the village heads fully saw the occurrence which was certainly never proved. He assumes that they deposed falsely which was for‑the jury" to decide and he goes on to give an emphatic expression of his own opinion when he says that all the efforts of the Court Inspector were in vain. Further on he goes on to speak. as follows : " Practically on the oral statement of the informant himself the learned Magistrate found a prima facie case made out and he committed the 3 accused as stated above on 31st August, 1948. Ali Ahmed, the elder brother of the deceased Khaij, Ahmed, who was present on the day of occurrence on the plot as a reaper with his father had left for Akyab a month after the occurrence and so he was not available." The fact that Ali Ahmed was present on the day of occurrence was strenuously denied by the defence who claimed that on the day of occurrence be was actually in Rangoon. The learned Sessions Judge therefore was clearly in error when 'he 'had put it to the Jury as a fact that Ali Ahmed was present on the day of occurrence. Further on the learned Sessions Judge delivers himself of an other unfortunate remarks. "During police investigation the police must have gathered materials for a charge‑sheet but for reasons and patent in the‑case those persons did not. tell the truth and the' prosecutor had to rely on the complainant and his son to prove the occurrence and the riot," Once more we have to observe that the learned Session judge bad no business to tell the jury that the person examined by the police did not tell the truth. We would further draw attention to the manner in which the dying declaration was recorded by the Sub‑Deputy Magistrate, It was drawn in the form of question and answer in the following way . What is your Name ? Answer Khaiz Ahmed. What is your father's name ? Answer Sekh Ahmed. Your residence ? Answer Hajeepur. Your P. S. ? Answer Sonogazi. Who assaulted you ? Answer. Sultan S/O Sorboksha Hajee of Hajeepur‑ Did any one else beat Answer Dudu, Siddique Ahmad of you ? Hajeepur. With what were you Answer with a lathi. assaulted ? These are the only questions and‑ answers recorded by the Sub‑Deputy Magistrates Moulvi Ali Rossain Bhiya, who Obviously has still to learn the ‑proper manner it which to record a dying declaration. In these circumstances it is impossible to uphold the convic tions and sentences of the appellants and after giving the matter our best consideration we do not think that any useful purpose will be served by directing a retrial. In the result then the appeal is allowed, and the convictions and sentences are set aside. We direct that the appellant Sultan Ahmed be released from jail and the appellants Siddiq. Ahmed and Dudhu Meah be discharged from their bail bond. ISPAHANI, J.

I agree. A.H Appeal allowed.