P L D 1962 Dacca 223 (PLP)

MURSHED, J.‑Opposite‑parties Nos. 2 to 7, namely, Alfaz Mia, Akal Mia, Moyna Mia, Arjoo Mia, Modaris Mia, Akal Mia (2), son of late Rahis Mia, respectively were tried by a Magistrate of the 1st Class, Habiganj, in the District of Sylhet, on charges under sections 147/324/326 of the Pakistan Penal Code.

2. The prosecution case in so far as it is material for the purpose of the disposal of this application before us may be very briefly stated as follows:

3. In the afternoon of the 16th of June 1959, several heads of cattle belonging to opposite‑parties Alfaz Mia and Akal Mia were found grazing on the paddy land of the complainant, namely, Ayaj Ali who is the petitioner before us. Ayaz All along with his son and some others caught hold of the cattle and proceeded to the pound in order to impound them. While they were taking the cattle to the pound, the opposite‑parties along with a few others, formed themselves into unlawful assembly with a view to assault the petitioner and his men so that the cattle might be rescued, attacked them and inflicted a number of injuries on the people belonging to the party of the complainant. Prosecution has led evidence as to the various injuries that had been inflicted upon the men of the complainant party by the individual opposite‑parties before us.'

4. On the 20th of June 1959, the petitioner lodged a complaint with the Sub‑Divisional Officer, Habiganj, with regard to the aforesaid occurrence and the opposite‑parties were eventually tried by Mr. A. Quader, Magistrate of the 1st Class.

5. The defence of the accused was a plea of "not guilty". It was contended on behalf of the defence that on the alleged date of occurrence when it became dark after evening, a goat belonging to the accused was killed by complainant party and while the dead goat was being shown to others, the men of the complainant attempted to snatch away the goat. Some weapons were hurled by parties on each side and no body saw how the individuals concerned were injured. Thus the defence case was that the occurrence took place later and that nobody saw the actual inflicting of injuries on the persons of the complainant's men. The defence also set up a rival version as to how the occurrence took place.

6. Learned Magistrate, on a consideration of the evidence in this case, convicted all the aforesaid opposite‑parties under section 147 of the Pakistan Penal Code and sentenced them each to pay a fine of Rs. 300, in default, to undergo rigorous imprison ment for four months. He further convicted opposite‑parties Alfaz Mia and Moyna Mia under section 326 of the said Code and sentenced them each to suffer rigorous imprisonment for a period of six months. Opposite‑parties Akal Mia, Arjoo Mia, Modares Mia, and Akal Mia, son of late Rahis Mia, were also convicted by him under section 394 of the Code, but no separate sentence was passed on them on this count.

7. Opposite‑parties preferred an appeal against their con viction and the sentences passed on them, as stated above. The appeal was heard and disposed of by Mr. M. H. Ali, Sessions Judge, who set aside the conviction of the opposite‑parties as well as the sentences passed on them and acquitted them of the charges levelled against them. Thereupon Ayaz Ali moved this Court In its revisional jurisdiction and obtained the present Rule.

8. At the hearing of this Rule Mr. Abdus Salam, who appeared before us on behalf of the petitioners, has taken us through the judgment pronounced by the learned Sessions Judge as well as that passed by the learned Magistrate. He has also taken us through a substantial part of the evidence in this case. Mr. Abdul Salam has argued that the trial of the appeal by the learned Sessions Judge amounted to a mis‑trial inasmuch as the learned Sessions Judge has taken extraneous matters into considera tion in disposing of the appeal. He has furthermore contended that the learned Sessions Judge has put into the mouth of some witnesses statement which the witnesses had never made In Court. Mr. Abdus Salam built up an elaborate argument. It is unneces sary for us to deal with all of them, having regard to the view that we have taken of this case.

9. In the first place, we may observe that it is evident from the judgment passed by the learned Sessions Judge that he has not properly applied his mind to the relevant features of this case, but has allowed himself to be misled by consideration of matters which are not very pertinent to the case. Mr. Salam has drawn our pointed attention to the following portion of the judgment of the learned Sessions Judge. Referring to the evidence of P. W. 2 Matior Rahman, the learned Sessions Judge goes on to observe as follows": "He admits that accused Alfaz, Asadder and Akal have their cloth shops at Nilam Bazar which sits at 2 p.m. and breaks up at 7 p.m. If this was so, I fail to understand how these accused persons who have their shops at Nilam Bazar, could come and take part in the occurrence after Asar prayer time." Learned Advocate for the petitioner has assailed this portion of the judgment by saying that the learned Sessions Judge has unnecessarily engaged his mind into consideration of a plea of alibi which was never set up by the defence.

10. Mr. Salam has next pointed out that the learned Sessions Judge was wrong when he stated in his judgment that P. W. 1 has admitted that there was hurling of weapons in the darkness of the night. Learned Sessions Judge has stated as follows: "P. W. I says that except P. W. 8 Ismail no other independent persons saw the damage of crops by the cattle. He also admits that there was hurling of weapons in the darkness of the night. We find from the evidence of P. W. 1 Ayaj Ali that he did not state that there was hurling of weapons in the darkness of night. His positive evidence is that the occurrence took place after Agar prayer time. Furthermore, his positive evidence is that, except for one injury, the others were caused by weapons, which were in the hands of the accused persons. He has merely stated that the injury on the nose of P. W. 3 Dudu Mia was caused by means of hurling of a weapon. From this it cannot certainly be said that this witness has admitted that there was hurling of weapons in the darkness of night.

11. The importance of this evidence is, that it can be used as an admission that the occurrence took place in the darkness of the night and in the manner as alleged by the defence. In fact, the learned Sessions Judge has used it as such.

12. It also transpires that the learned Sessions Judge has observed in his judgment that the witnesses for the prosecution in this case admittedly had a series of litigations with one or other of them. This is not wholly correct.

13. We do not wish to multiply such instances, lest we may prejudice the opposite‑parties in view of the order that we propose to make in this case. It will be sufficient to state that the judgment pronounced by the learned Sessions Judge bristles with a number of inaccurate statements and, in these circumstances, we are constrained to hold that the appeal before the learned Sessions Judge was not properly disposed of. The learned Sessions Judge has not exercised a judicial mind to the facts of this case.

14. Mr. Nurul Amin has argued that this being a case of acquittal, this Court should be reluctant to set aside the order passed by the learned Sessions Judge, if the said order can be shown to be not entirely unreasonable in the light of the evidence in this case.

15. It is true that this Court would not lightly set aside an order of acquittal and would be normally reluctant to do so. But in this case we cannot but hold, as we do, that the trial of the appeal by the learned Sessions Judge amounted to a mis‑trial. It is patent that the learned Sessions Judge did not bring a judicial mind to bear upon the facts and circumstances of this case. In these circumstances, the order passed by the Appellate Court below must be set aside as the appeal was not judicially tried by that Court.

16. The question that now arises is, whether we should direct a retrial of the opposite‑parties by the Court of First Instance, namely, by the learned Magistrate, or a retrial of the appeal by the Appellate Court below, namely, by the learned Sessions Judge.

17. Mr. Nurul Amin has argued that the powers exercised by this Court under the provisions of section 439 of the Code of Criminal Procedure are set out in section 423 of the said Code. He has drawn our attention to clause (a) of subsection (1) of section 423 of the said Code, which states that the Court may "in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trigs as he case may be, or find him guilty and pass sentence on him according to law. It has been argued that amongst the powers enumerated in the aforesaid section, the Court has been vested with jurisdiction to direct that the accused be retried., which postulates a trial by the Court of First Instance and not a re‑hearing of the appeal by the Appellate Court below.

18. We do not think we can accept this narrow construction of the word "retried". We may incidentally mention that the powers of this Court in appeal from conviction, inter alia, also include an order directing the accused to be "retried". The word "retried" has been used in both clauses (a) and (b) of sub section (1) of section 423 of the Code. In our view, the word "retried" would mean and include a retrial of the appeal. An Appellate Court "tries" an appeal and disposes it of. In legal parlance the appeal is "tried" by a Court of appeal. It is, therefore, clear that the word "tried" is wide enough to include a trial of the appeal. There is no justification to restrict the meaning of the word "retried" to retrial of the case by the Court of first instance. Besides, the appeal itself is a continuation of the trial of the accused. The view that we have taken is in accordance with the literal meaning of the word itself and is also in consonance with a construction, which is in keeping with the long established practice of the various High Courts of the sub‑continent for about three quarters of a century.

19. One of the earliest cases that we could get hold of is a decision of the Calcutta High, Court given in the year 1875 and it is the case of the Government` of Bengal v. Gakool Chandra Chow dhury (24 W R Cr. 41). In the aforesaid case a conviction by a Joint Magistrate was set aside by the Sessions Judge on the ground that the trial of the accused was vitiated inasmuch as necessary sanction for the trial was not obtained. The decision was reversed by the High Court, which held that no sanction was necessary. Jackson, J., in delivering the judgment of the Division Bench, has observed as follows: ‑ "We think, therefore, that the judgment of the Court of Sessions, reversing that of the Joint Magistrate of Moorshedabad, must be set aside and as the appeal has not been tried upon its merits, the record must go to the Court of Sessions for that purpose. It may be mentioned that a similar view appears to have been taken by the Highest Court in the Punjab in a case referred to in Mewbery's Edition of the Code in the notes to section 468." In the aforesaid case a re‑trial of the appeal was ordered by the High Court after setting aside an appellate order of acquittal.

20. The aforesaid case was also cited and followed b e Division Bench of the Bombay High Court in the case of the Queen Empress v. Ganesh Khanderao and another (I L R 13 Bom. 506). In that case the Division Bench of the Bombay High Court has observed as follows (at page 515 of report) "It is in our opinion, unnecessary at the present stage to deal with the question whether cheating or any otter offence I vas committed, For these reasons we reverse the order of acquittal passed in appeal by the learned Sessions Judge. As he decided the appeal only on the question of law with which we have dealt, and without determining the merits, or the question as to local jurisdiction which has been raised here, but which depends partly on the facts, we now, under section 423, Criminal Procedure Code, direct that the appeal of the prisoner be re‑tried by the Sessions Judge. For such an order we find a precedent in the Govt. of Bengal v. Gokool Chunder Chowdhry. That case was tried under the Code of 1872 ; but we are of opinion that the words relating to trial, in the present Code, in section 423, are used in a sense wide enough to include the trial of appeals as in sections 342, 344, 252 and some sections of Chapter XXV.

21. In the case of Satish Chandra Das v. Chinta Haran Saha (43 C W N 25), a Division Bench of the Calcutta High Court has observed as follows (at page 28 of the report): Nabin Chandra Chakraborty v. Rajendra Nath Banerjee, C W N 279 was a case in which this Court in revision set aside an appellate order of acquittal where the judgment did not contain a proper discussion of the evidence and of the questions involved. The cases referred to suffice to show that this Court has power to interfere in revision with an appellate judgment of acquittal, and that though that power should be sparingly exercised, it would be wrong to refuse to exercise it in cases where there has been a failure of justice by reason of the Appellate Court not having brought a judicial mind to bear upon the evidence. The Rule must be made absolute. The order of the learned Additional Sessions Judge is set aside and it is directed that the appeal be re‑heard by some other Judge in accordance with law. In the aforesaid case too an order of acquittal passed by an Appellate Court was set aside and it was directed that the appeal be re‑heard.

22. In the case of Nalini Kanta Ghosh v. Afiruddin and others (P L D 1958 Dacca 32), which was decided in the year 1957, a Single Bench of this Court, following previous precedents, set aside an order of an acquittal passed by an Additional Sessions Judge and directed that the appeal be re‑heard by some other Judge in accordance with law.

23. The aforesaid cases indicate that for more than three quarters of a century the various High Courts of the sub‑continent have exercised their powers in revisional jurisdiction to set aside an order of acquittal and to direct a re‑hearing or a re‑trial of the appeal. The matter was fully discussed as early as 1886 in the case of Queen Empress v. Balwant (I L R 9 All. 136), which is a decision of a Full Bench of the Allahabad High Court. The questions referred to the Full Bench were as follows (1) Has the High Court power, under section 439 of the Code of Criminal Procedure, to revise an order of acquittal ? (2) If it has, in reference to orders of acquittal passed on appeal, what has its power to order to be done ? The first question was answered in the affirmative and it need not be set out here.

24. With regard to the second question, the Full Bench has observed as follows (at page 136 of the report): "Proceeding to the second branch of the reference, we are asked what order can be made with reference to a person convicted by a Magistrate, but acquitted by the Court of Session in appeal, such order of acquittal being reversed by the High Court under section 439 of the Criminal Procedure Code. Clearly, the order must be one directing the re‑trial of the proceedings wherein the final order has been found to be bad, and has in consequence been reversed. And as to the Court to which our order of re‑trial should be sent, the scope for selection is limited to three Tribunals, that is to say, the High Court, the Sessions Court of Appeal, or the Magistrate. It cannot be the High Court, because the limitation imposed by the last clause of section 439 would restrict the result to a re‑affirmation of the finding of acquittal. Similarly, it would be idle as well as unreasonable, to direct a re‑trial by the Magistrate, whose proceedings, the order of the Appellate Court having been reversed, so far stand good, and who would, presumably, as a matter of course, re‑affirm the conviction. The Sessions Court of Appeal then is the proper Tribunal for re‑trial of the appeal, or such other Court of equal jurisdiction as we might entrust, under section 526 of the Code, with the trial of the appeal. This is our answer to the second question."

25. Thus the decisions cited above would support the view that we have taken, namely, that the word "retried" as used in section 423 of the Code of Criminal Procedure includes re‑trial of the appeal as well.

26. It has been next contended by Mr. Nurul Amin that if the order passed by the Appellate Court below, namely, the Sessions Judge, is set aside, we should also set aside the order of conviction passed by the Court of first instance and send back the case for a re‑trial by the latter Court.

27. This argument is based on the points which have been discussed by the Appellate Court below. The first point is that the examination of the accused persons under the provisions of section 342 of the Code of Criminal Procedure was not proper and in accordance with law. It transpires that the Court of first instance had in the said examination asked the accused persons the simple question to the following effect :‑ "You have heard the evidence of the witnesses. What have you got to say 7" Mr. Nurul Amin has contended that this is a perfunctory examina tion of the accused persons under the aforesaid section and that such examination has caused prejudice to the accused persons.

28. With regard to this point, we‑ would observe that improper examination or non‑examination of accused persons under the said section does not necessarily vitiate the trial, if, in fact, no prejudice has been caused to them. This proposition is well‑settled, and if any authority is required, we may cite the following decisions of the Federal Court of Pakistan, namely, Ibrahim Bhak and another v. The Crown (P L D 1955 F C 113), and Abdus Salam Molla v. The Crown (P L D 1955 F C 129).

29. In the case before us the facts are very simple. Prosecu tion case is that on a particular day after Asar prayer time some heads of cattle belonging to the accused persons had damaged the paddy field of the complainant and others and when such cattle were being taken to the pound, the accused persons formed themselves into an unlawful assembly with a view to assault the complainant and his men and also to rescue the, said cattle. It is also alleged that the accused caused various injuries on .the persons of these men. This is the grievance of the prosecution case and it is patent that the accused had fully understood what the case against them was, inasmuch as the prosecution witnesses were cross‑examined on all the important and material points in this case. Defence, on the contrary, had set up a rival version of the case. From above it is patent that the accused persons had suffered no prejudice because of their examination under the said section 342, as quoted above. There is, therefore, no substance in this argument that was advanced by Mr. Nurul Amin.

30. It will, however, be seen that the learned Sessions Judge, relying on a decision of a Single Bench of this Court observed that the trial of the accused was vitiated. He referred to the case of Moksed All Molla v. The State (P L D 1960 Dacca 13). The learned Sessions Judge has assailed the judgment pronounced by the Court of first instance on the ground that in the course of the examination of the accused persons under section 342 of the Code of Criminal Procedure they were not asked as to whether they would adduce any evidence. On that ground the learned Sessions Judge was of opinion that the trial of the accused persons was vitiated, relying on Moksed Ali Molla's case.

31. In our opinion, the learned Sessions Judge has clearly mis‑directed himself on this point. Section 342 of the Code of Criminal Procedure does not require or provide for asking the accused whether he would adduce any evidence. In a warrant case, after the charge has been framed against the accused person under the provisions of section 256 of the Code, he has to be called upon to enter upon his defence and produce his evidence, if any. It is, therefore, incumbent upon the trial Court to ask the accused as to whether be would adduce any evidence or not. It is also evident from the provisions of section 342 of the Code of Criminal Procedure that the examination under the said section must precede the stage when the accused is required to adduce defence evidence. It is not necessary that immediately at the close of such examination the question must be put and recorded in the transcription of the question and answer made in course of such examination. It is sufficient if it appears that the trial Court had, in fact, asked the accused as to whether he would examine any defence witness and such a query may become unnecessary when the accused person himself intimates to Court, at the close of the prosecution evidence, that he does not propose to adduce any defence evidence. In Moksed All Molla's case, the Court came to a definite finding that the accused persons were never asked as to whether they would adduce any defence evidence and it was also found that failure to make such a query had, in fact, caused prejudice to the accused persons.

32. In the present case, however, from the record we find that the learned Magistrate in the Court of first instance had,` in fact, asked the accused persons as to whether they would' adduce any evidence. This is evident from the endorsement in the order‑sheet recorded by the said Magistrate on the 18th of April 1960, which reads as follows: "All accused present. They are examined under section 342, Criminal Procedure Code. Defence intimates that no D. W. will be produced, but files W/S with papers. Seen prayer of prosecution for time. To 25‑4‑60 for argument." Even previous to this the learned Magistrate bad recorded the following endorsement on the 21st of October 1959: " Defence will not adduce any evidence by producing D. Ws. Therefore, argument will be heard on that day and order passed."

33. It is thus clear that the learned Magistrate had provided accused persons the fullest opportunity of adducing defence at the appropriate time. In these circumstances, the of this Court in Moksed Ali Molla's case, has no manner application in this case.

34. Learned Sessions Judge was further of opinion that the trial of the accused persons was vitiated inasmuch as the learned Magistrate bad wrongly formulated the point for determination in respect of the alleged common object of the unlawful assembly as set out in the charge. In the charge, assaulting P. Ws. 1 to 6, namely, Ayaz Ali, Matior Rahman, Dudu Mia, Gyashuddin, Kuddus Mia and Azizur Rahman, respectively, was stated to be the common object of the said assembly, whereas in the judgment pronounced by the learned Magistrate he formulated point No. 2 as follows: "Whether the accused persons formed an unlawful assembly with the common object of rescuing the cattle by use of force and violence with deadly weapon". There is undoubtedly a certain amount of discrepancy between the charge as framed and point formulated by the learned Magis trate. But there is no manner of doubt that the learned Magistrate had virtually come to a finding that the common object of the assembly was to assault the aforesaid persons. In any event, this fact would not vitiate the trial inasmuch as the appeal before the learned Sessions Judge was an appeal on facts as well. The learned Sessions Judge could and should have assessed the evidence for himself. If he was satisfied that the common object of the unlawful assembly as set out in the charge was fully established by prosecution evidence, he would have armed the conviction of the accused persons under the said charge. If he came to the conclusion that such common object of the said unlawful assembly was not established, he should have acquitted them under Section 147 of the Pakistan Penal Code. In hearing the appeal it was his duty to assess the evidence for himself.

35. In these circumstances, we do not think that we can hold that the trial of the opposite‑parties in the Court of first instance, namely, before the learned Magistrate, was a mistrial.

36. The result, therefore, is, that we make this Rule absolute and set aside the order of acquittal passed in favour of the opposite- parties by the learned Sessions Judge by his judgment dated the 14th of June 1960. We further direct that this case be sent back on remand for a re‑trial of the appeal by the Appellate Court below. We would like to observe that our decision in this case is confined to points of law raised before us. The Appellate Court below is free to make an independent assessment of the evidence and circumstances of this case. SALAHUDDIN AHMED, J.‑I agree. S. B. Rule made absolute.