P L D 1958 Dacca 111 (PLP)

"That you, on or about the 10th Magh, 1361 B. S., corres ponding to 24th January 1955, at Sangrambil, P. S. Lohajang, voluntarily caused hurt to Faizunnessa Bibi, wife of com plainant Kasem Ali Dewan, by assaulting her with cane stick, roller and lathi, etc., and also by kicking and thereby committed an offence punishable under section 323, of the P. P. C. .... The jury unanimously found the appellants guilty under sections 330 and 323/34, P. P. C. The learned judge accepting that unanimous verdict convicted them under those sections and sentenced A. K. M. Reza to rigorous imprisonment for 5 years under section 330 and to rigorous imprisonment for one year under sections 323/34, P. P. C. He sentenced Ainuddin and Motahar Ali to rigorous imprisonment for 3 years each under section 330 and to rigorous imprisonment for 6 months each under sections 323/34, P. P. C. The sentences were ordered to run concurrently. Mr. Maksum‑ul‑Hakim, counsel, has appeared on behalf of the appellants and he has advanced the following arguments before us (1) The whole trial is bad and without jurisdiction for want of sanction as is required under section 197 of the Code of Criminal Procedure. Thus the whole trial has been vitiated and the conviction and sentence passed on the appel lants cannot be upheld. (2) He has complained that the investigating officer M. A. Jabbar who held investigation in the case and who examined the witnesses has not been examined and his non- examination has caused immense prejudice to the appellants, because the previous statements made to him by the witnesses could not be put to him. (3) The learned judge has, not weighed and sifted the evidence in a proper manner but has merely set out the evidence of the witnesses without bringing out saliant points in the evidence of the witnesses. (4) The learned judge did not tell the jury the inter relationship of the witnesses which is non‑direction amount ing to misdirection. (5) The learned judge did not tell the jury the existence of political rivalry and enmity between the parties in the village as a result whereof the appellants have been falsely implicated. (6) The discrepancies regarding extortion have not been placed before the jury. (7) Section 288 of the Code of Criminal Procedure has not been explained by the judge to the jury. (8) The appellants have not been properly examined under section 342 of the Code of Criminal Procedure. For the present purpose, it is enough to consider the objection as regards the non‑examination of the investigating officer. On a reference to the order‑sheet in the case, it appears that on 23rd June 1956, some witnesses were examined and there is a note that Mr. M. A. Jabbar, S. I. of Police, was not examined by the prosecution after which the evidence for the prosecution was closed and the order‑sheets and state ments of the accused persons in the lower Court were put in under section 287 of the Code of Criminal Procedure. Mr. Hakim has rightly made a grievance that the non -examination of the said investigating officer has caused im mense prejudice to the appellants inasmuch as he was not available to be questioned as to the statements made to him by the witnesses examined by him. In this connection, he has referred us to Mominuddin Sk. and others v. Crown (5 DLR 141). a decision to which one of us is a party. It was held that the failure by tile prosecution to examine the investigating officer deprives the defence of their very valuable right of oppor tunity of shaking the credit of the prosecution witnesses by bringing out the contradictions between their statements to the police during investigation and their evidence in Court. Such a serious defect cannot be cured by a direction to the jury that they are to make strong presumption against the prosecution an account of the omission. The principle enunciated there would apply to the facts of the present case. It was essential that the investigating officer should have been examined to afford an opportunity to the defence to cross- examine him. By reason of his non‑examination, the defence case has been prejudiced. In the present case, it may be noted that the learned judge did not even tell the jury that they should draw an adverse inference against the prosecution for his non‑examination which was done in the cited authority. Thus the conviction and sentence passed on the appellants must be set aside and a re‑trial ordered, and it is ordered accordingly. Mr. Hakim has urged that in the present case appellant A. K. M. Reza is a Sub‑Inspector of Police and appellants Ainuddin and Motahar Ali are constables of the Police Force and. therefore, it was incumbent on the prosecution to obtain sanction prior to their prosecution. As there is no sanction on record, the trial held is vitiated and void ab initio. He has referred us to Matajog Dubey and others v. H. C. Bhari and others (PLD1957SC(Ind.) 160). It was inter alia held that the offence alleged to have been committed must have something to do or must bell related in some manner with discharge of official duty. No question of sanction can arise under section 197, Criminal P. C., unless the act complained of is an offence ; the only point to determine is whether it was committed in the dis charge of official duty. There must be a reasonable connection between the act and the official duty. In coming to that decision, many authorities were considered, one of them being Amrik Singh v. The State of Pepsu (P L D 1956 S C (Ind.) 191). In that case their Lordships of the Supreme Court observed at page 197 as follows :‑ "The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under section 197. (1) of the Code of Criminal Procedure, nor even every act done by him while he is actually engaged in the performance of his official duties ; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary ; and that would be so, irrespective o whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial and could not arise at the stage of the grant of sanction which must precede the institution of the prosecution." In the case before us, the allegation is that the deceased Lal Meah was suspected of theft. On some information received, the appellants and one other went to his house and demanded Lal Meah to confess or restore stolen property of the theft which took place in the house of Ishaque Fakir of their village the previous night. Lal Meah pleaded innocence when the appellants and others mercilessly beat him with cane stick, roller and lathi. They also assaulted Faizunnessa, the wife of P. W. 1 Kashem Ali Dewan, with cane stick and roller so much so that she discharged her urine and stool and spoilt her clothes. Thereafter Lal Meah and Faizunnessa were taken to the house of Ishaque Fakir and there Lal Meah was tied to a hanging bamboo and beaten mercilessly with cane stick and roller. From Ishaque Fakir's house, both Lal Meah and Faizunnessa were taken to the house of the Circle Inspector to the west of their house at a distance of about one‑fourth of a mile. Lal Meah was unable to walk. So the two constables practically carried him to the house of the Circle Inspector. These are the allegations made against the appellants and it cannot be said that the offence committed by the appellants have any connection with the discharge of their official duty. The appellants went to the house of Lal Meah in connection with the theft and to seize the stolen property. What the appellants did has no connection whatsoever with the discharge of their official duty. Besides citing the authority, C Mr. Hakim has not shown any material to connect the offences committed with the discharge of official duty by the appellants. Thus it does not appear that sanction under section 197 of the Code of Criminal Procedure for the) prosecution of the appellants was at all necessary. In these circumstances, we allow the appeal and set aside the convictions and sentences passed on the appellants and order their re‑trial according to law in the light of the obser vations made above and also with a direction that, at the re‑trial, the other objections raised in this Court may be kept in view. Pending re‑trial, the appellants will remain in hajat. It is directed that the re‑trial may be held at an early date having regard to the convenience of the presiding judge. ASIR, J.‑I agree. Z. A. S. Re‑trial ordered.