P L D 1971 Dacca 277 (PLP)

The learned Magistrate examined the prosecution witnesses and formed a charge under section 379 of the Pakistan Penal Code against the opposite‑parties. The prosecution witnesses were cross‑examined by the defence but ultimately the accused opposite‑parties did not appear on the date fixed and were found absconding. Their bail bonds, therefore, were forfeited and thereafter the Magistrate left the station on transfer. Thereafter the case went before the Magistrate Mr. B. G. Sen Gupta, Ist Class, for disposal. The prosecution witnesses were again cross‑examined and the date was fixed for delivery of the judgment. This Magistrate too was transferred and then the case was transferred to Mr. J. L. Chakravorty, Magistrate, Ist Class, Barisal. The accused persons prayed for de novo trial and accordingly, the prosecution witnesses were again examined and a charge under section 379 of the Pakistan Penal Code was again framed against the accused‑opposite‑parties on 22nd June 1967 and the case was adjourned to 24th July 1967 for cross‑examina tion of the prosecution witnesses. On that day hazira for 6 P. Ws. were filed but as the trying Magistrate was busy with other works, he adjourned the case to 7th September 1967 for cross‑examination. On 7th September 1967 both the parties were present but the trying Magistrate was absent as he went to Noakhali and the case was accordingly, adjourned to 9th October 1967 for cross‑examination of the P. Ws. On that day the trying Magistrate was on casual leave and the case was adjourned to 14th November 1967. On that day, that is, on 14th November 1967 the trying Magistrate recorded the following order which is the impugned order in this case. "P. Ws. ate absent without any intimation and Tadbir. It is already 11 a.m. The absence of the P. Ws. without any intimation is unwarranted as the P. Ws. are not facing the test of cross‑examination and as the prosecution is not praying for time. So the evidence of the P. W. is expunged. As a result, no case lies against the accused persons. Hence the accused persons are acquitted under section 251 of the Criminal Procedure Code." The order itself shows that the learned Magistrate passed the impugned order at 11 a.m. while the complainant appeared and filed a petition before him at 11‑30 a.m. stating that due to some engine trouble of the launch in which both the P. Ws. as well as the accused persons were travelling arrived late. So, the petitioner prayed for necessary order to be passed by the learned Magistrate. The learned Magistrate, however, did not record any order in the order‑sheet but he filed the petition with the record. There is no doubt some authority in support of the impugned order. Indeed the impugned order is in line with the suggestions contained in the case of Siddique Mohammad Ahmed Hasan v. Jyotish Chandra Pandit and others (A I R 1948 Cal. 83). The facts of that case were that the case had been adjourned to 29‑10‑46 and 30‑10‑46 for cross‑examination of the prosecution witnesses. The Magistrate as well as the complainant were both absent on 29‑10‑46 and the complainant was again absent on 30‑10‑46 and his Muktear intimated the Court that he received no instruction from his client in the case. No witnesses were present either on 29‑10‑46 or 30‑10‑46 and no hazira had been filed on either of those two days. The Magistrate passed on order, "The accused persons are discharged under section 253 of the Criminal Procedure Code." On 14‑11‑46, the Magistrate, however, received the case. On those facts, Chunder, J. observed: "The proper order that the Magistrate should have passed in such a case was that `as the prosecution witnesses are absent and can not be cross‑examined their evidence in examination- in‑chief should be expunged and as there is no evidence in the case the accused is acquitted. There is no provision for the discharge of an accused after charge had been framed. So the order of the learned Magistrate was an order of acquittal. He had therefore no power to revive it on 14‑11‑46 when the complainant came and filed a petition for revival. The case having been wrongly revived by the learned Magist rate, the order of revival is set aside as we find that the order passed on 30‑10‑46 was an order of acquittal and we do disturb that order. With great respect, we are unable to agree with the view expressed in the above decision for two reasons. First, the facts and circumstances of the present case do not justify the expunction of the evidence given by the prosecution witnesses in their examination‑in‑chief before the framing of the charge. Secondly, the provisions of section 256 of the Criminal Procedure Code were not taken into consideration in that case. The correct position, in our opinion, is that in the trial of a warrant case after the framing of the charge, the duty is cast upon the Magistrate trying the case to recall the prosecution witnesses by the provisions of section 256 of the Criminal Procedure Code. The duty of procuring their attendance cannot be laid on the shoulder of the complainant who has no authority to compel their attendance and he cannot be penalised for no fault of his. The absence of the complainant or his witnesses under the circumstances of the present case should' not be considered to afford an opportunity to the trial Court to acquit the accused simply on the ground of the absence of the complainant or his witnesses. The provisions of section 256 of the Criminal Procedure Code imposes a duty on the trial Court to recall the prosecution witnesses and the Court must exhaust the process of law in this behalf and then proceed with the trial according to law. In support of our view, we may refer to the case of Superintendent and Legal Remembrancer, Government of East Pakistan (P L D 1958 Dacca 301), and to the case of Rampal v. Mongia (53 Cr. L J 609). Reference may also be made to the case of Mar Kishan Das v. Emperor (A I R 1937 All. 127) and the case of Sagiruddin v. Munni and others (A I R 1949 All. 428). From the facts of this case, it will have been noticed that the complainant and the prosecution witnesses were diligent all through and it could not be inferred that they were reluctant to subject themselves to cross‑examination at any stage. Due to the unavoidable circumstances over which they had no control they were late in attending the Court on 14‑11‑

67. Thus, the impugned order is neither supported by law nor by the facts and circumstances of the case and is, therefore, liable to be set aside. There is, however, another point of law involved in this case. A case under section 379 of the Pakistan Penal Code is a warrant case and in a warrant case when the witnesses are examined by the prosecution and a charge is framed against the accused persons, the Magistrate can pass no order except that of an order of conviction or acquittal. Naturally therefore, the provisions of section 367 of the Code of Criminal Procedure is attracted and the learned Magistrate has got to give his decision in a properly written judgment though in brief, as contemplated under that provision. The learned Magistrate is required to state the offence of which the accused is acquitted and direct that he be set at liberty as enjoined by subsection (4) of section 367 of the Criminal Procedure Code. The order of acquittal must be based upon the findings that the accused is not guilty. This presupposes that the Magistrate shall apply his mind to the evidence on record and state whether he believes or disbelieves the evidence. If this is not done it means that the evidence against the accused remains in force without being used or discussed by the learned Magistrate to form the basis of the order of acquittal. The order complai ned of is, therefore, not in compliance with the provision of subsection (4) of section 367 of the Criminal Procedure Code and is illegal and is, therefore liable to be set aside on this ground as well. In the result, the reference is accordingly accepted and the order complained of is set aside. The trial will be proceeded with on that footing. HABIBUR RAHMAN, J.‑

I agree. Reference accepted.