P L D 1960 Dacca 880 (PLP)

Their defence at the trial appears to have been that Bakulunnessa was the legally married wife of accused Kazem, that she was abducted from his house by P. Ws. Hemayet, Hasan and Ashraf, that there was an abduction case against them and that on the date of occurrence there was an understanding between the parties for effecting a compromise at Ramnagar Ghat. It was further contended that at Ramnagar Ghat, the complainant‑party insisted upon a divorce and as accused Kazem did not agree to that proposal the complainant‑party assaulted the accused persons and arrested two of then The learned Magistrate, however, rejected the defence version and accepting the prosecution case as proved, convicted and sentenced the accused petitioners as already stated above. Thereafter their appeal before the learned Sessions Judge was also dismissed. Hence this application in revision. Mr. Mustafa, counsel, appearing on behalf of the accused petitioners has mainly urged two grounds in impeachment of the judgment of the learned Sessions Judge. In the first place he has contended that as the charge against the accused persons under section 323 of the Pakistan Penal Code failed, the common object set out in the charge under section 147 of the Pakistan Penal Code which` was one of assaulting the complainant‑party also failed and that that being so, the conviction of the accused petitioners under section 147 of the Pakistan Penal Code cannot be sustained in law. The second contention urged by him is that Bakulunnessa is the legally married wife of accused Kazem Ali and that the contrary view taken by the Courts below being erroneous, his conviction under section 354 of the Pakistan Penal' Code cannot stand. He also tried to make other points which if found necessary will be dealt with at later stage. The common object attributed to the accused in the charge under section 147 of the Pakistan Penal Code was that of assault ing the prosecution witnesses. They were also further charged under section 323 of the Pakistan Penal Code for having actually assaulted the said witnesses. As already stated above, the learned Magistrate ultimately acquitted the accused of this charge i.e. charge under section 323 of the Pakistan Penal Code. Accordingly Mr. Mustafa has argued that since the charge under section 323 of the Pakistan Penal Code could not be established the alleged common object of assaulting the complainant‑party also necessarily failed so that the conviction under section 147 of the Pakistan Penal Code cannot stand. This point appears to have been canvassed before the learned Sessions Judge as well. The learned Sessions Judge negatived the same in these terms :‑

"It is no doubt true that the learned Magistrate has acquitted all the accused of the charge under section

323. The reason assigned by him is that it is not proved beyond reasonable doubt who amongst the accused persons assaulted which of the P. Ws. But he has not disbelieved the story of the accused‑party assault ing the complainant‑party." As far as I can see these observations do not represent a full picture of the reasons and considerations that weighed with the learned trial Magistrate in finding the accused persons not guilty under section 323 of the Pakistan Penal Code. His order of acquittal in this behalf does not appear to be based solely or exclusively upon the ground that "it is not proved beyond reasonable doubt who amongst the accused persons assaulted which of the P. Ws." The learned Magistrate has expressed his views as well as the reasons that led him to take that view in clear terms and these in his words are as follows :‑ "As the medical evidence does not show any external injury on Asmat and Ashraf, as the M. O. has opined that the injuries of Hemayet and Aziz might be caused by fall and since the evidence is not specific as to which accused caused injury to which witness. I do not find the accused persons guilty under section 323, P. P. C." Apparently the fact of the evidence not being specific as to which accused caused injuries to which witness is only one of the three reasons assigned by the learned Magistrate for the above view taken by him, the other two reasons being (1) that the medical evidence does not show any external injury on Asmat and Ashraf and (2) that the Medical Officer has opined that the Injury of Hemayet and Aziz might be caused by fall. Mention of the latter two reasons appears to point unmistakably to the conclusion that the learned Magistrate entertained doubt regarding the alleged factum of the alleged assault i.e. was of opinion that it could not be established beyond reasonable doubt that the accused‑party actually assaulted the complainant‑party. If that is so, it must necessarily follow that the existence of the alleged common object, to wit assaulting the complainant‑party, as set out in the charge under section 147 of the Pakistan Penal Code, also could not be established beyond reasonable doubt, in which case the conviction under the said section cannot stand. In this connection it may be observed that in the context of the facts and circumstances of the case showing that the parties have been fighting rather stubbornly over this woman, i.e. Bakulunnessa and that the accused petitioner Kazem Ali Sarder has been persistently claim ing her as his legally married wife, it is also doubtful whether the principal object of the accused‑party was assaulting the complain ant‑party. One would rather be very much inclined to think that the principal object of the accused‑party must have been to snatch sway the girl and that object of assaulting the complainant party, if really there was any such object at all, was only an ancillary or secondary one. As a matter of fact this appears to fit in with the above‑mentioned view taken by the learned trial Magistrate from the fact that two of the P. Ws. in question had no external mark of injury at all and that the opinion of the Medical Officer was that the injury found on the persons of other two, were such as might be caused by fall as well. Whatever that may be, the important fact remains, as already made clear above, that the existence of the alleged common object could not be established beyond reasonable doubt and as such the conviction under section 147 of the Pakistan Penal Code cannot be sustained. As to the conviction of the petitioner No. 1 Kazem Sarder under section 354 of the Pakistan Penal Code, the contention urged by the learned counsel is that this cannot stand, inasmuch as Bakulunnessa is really his legally married wife. This was the contention urged before the trial Court as well, but the learned Magistrate rejected it on a finding to the contrary. Later on it was also canvassed before the learned Sessions Judge who took the view that "the story of marriage between Bakulunnessa and the accused Kazem has not been made reasonable and probable." Proceeding further he has added: "If the defence could have made the story of Bakul's marriage with the accused Kazem reasonable and probable then of course the intent of the accused to outrage the modesty of Bakul could have been missing." Now at the hearing before this Court the learned counsel has produced on behalf of his said client certified copies of the plaint, order and decree in T. S. No. 2/60 of the 3rd Court of the Munsif at Khulna showing that a decree has since been passed declaring Kazem Sarder entitled to restitution of conjugal rights vis‑a‑vis Bakulunnessa and directing Bakulunnessa to live with him as husband and wife. It is true that it is an ex-parte decree rendered in a suit that was filed after the disposal of the criminal case by the Court of the first instance, and decreed subsequent to the disposal of the appeal by the learned Sessions Judge, but the point one can perhaps ill‑afford to lose sight of is that it is a decree granted by a competent Court of proper jurisdiction and cannot just be ignored as long as it stands in force i.e. has not been avoided in due course of law. It may be that the other party is not even aware of it and may yet take legal steps to avoid in order to have a fresh decision made in their presence. Even if in that view of the matter this decree were not to be regarded as final, these appears to be no escape at least from this that the said decree, as it stands, creates a grave doubt regarding the controvertial factum of marriage between this accused and Bakulunnessa and that being the position it would be rather unsafe to deny the benefit of this doubt to the said accused and uphold his conviction under section 354 of the Pakistan Penal Code in this case. In these circumstances I am inclined to acquit Kazem Ali Sarder of this charge by giving him the benefit of reasonable doubt, without accepting the factum of the aforesaid marriage as established. In the result the rule is made absolute. The order of conviction and sentences of the accused petitioners is set aside and they are acquitted of the charges against them. Their bail bonds are cancelled. A. H. Rule made absolute.