1968 P Cr (PLP)

Nemo for the State. Date of hearing: 31st January 1968. The Rule was issued calling pun the Deputy Commissioner of Dinajpur to show cause why the order of convictions and sentences of the petitioners should not be set aside. All the petitioners stand convicted under section 147, P. P. C. and sentence to R. I. for four months. Petitioner No. 1 Tamijuddin has been further convicted under section 324, P. P. C. and sentenced to R. 1 for six, mouths more. Mr. Abdul Hamid has assailed the convictions on various grounds. In the first place he has urged that the criminal Court has no jurisdiction to say that the record‑of‑rights is wrong. He has drawn attention to an observation of the Court of appeal below that the recording of the name of petitioner Tamijuddin in modified record‑of‑rights in connection with the tank in question is a false and fabricated one. It may be mentioned here that the subject‑matter of theft in the present case were fish from a tank claimed to be in possession of the complainant. It is in this context that the above observation was made by the learned Sessions Judge. Mr. Abdul Hamid has failed to cite any authority to support his proposition that a criminal Court has no jurisdiction to say that the record‑of‑rights is wrong. It is true that it is not the function of the criminal Court to declare a record‑of‑rights to be wrong but while considering the cast before it, it is perfectly within the jurisdiction of the Court to consider the correctness or otherwise of the record‑of‑rights. Whatever that may be, the present case was decided mostly on oral evidence of possession and the decision has not been based merely on the factum of incorrectness or fabrication of the record-of‑rights. Another ground urged by the learned Advocate for the petitioners is that P. W. 5 was declared hostile by to trial Court but the legal aspects of a hostile witness have not been considered by either of the Courts below. Reference has been made in this connection to cases reported in 11 D L R 360 and 12 D L R

578. In the casa of Fazlul Haque v. The State 11DLR316, it was held that where a witness is cross‑examined by the pair calling him, his evidence is not to be rejected either in whole ors part but the whole of the evidence so far as it affects both parses favourable or unfavourable must be taken into account and asessed like any other evidence for whatever it is worth. In the case of Abed Ali Meah v. Ismail Meah 12DLR578 it was held b a Division Bench of this Court that a witness who is unfaourable is not necessarily hostile, for a hostile witness has been defined as one who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. It was further held that there is no reason why simply because a part of the deposition of a witness goes against a party who calls him, that witness should necessarily be declared hostile A reference to the deposition of P. W. 5 shows that he was declared hostile and allowed to be cross‑examined by the prosecution. This fact was noted in the order of the Magistrate, dated 11th December 1966. No reason appears to have been given fir declaring the Witness hostile. It is, however, not the requirement of law that the Court should give reasons for permitting a arty to cross examine his own witness. On going through the evidence of P. W. 5 it is found that he was not supporting to prosecution case and was deposing in favour of the defence and it was at that stage that he was declared hostile and that it transpired in cross examination that petitioner Tamijuddin is his maternal uncle. In these circumstances if his evidence was not considered by the Courts below, no fault can be found with them. Another point urged on behalf of the petitioners is that disinterested witnesses were not examined by the prosecution and the witnesses who were brought to support the prosecution case are all related to the complainant. It has been further submitted that P. W. 7 Tamizuddin Mondal and P. W.8 Subiruddin Sarker are not eye‑witnesses to the occurrence am yet they have been treated as such by the lower appellate Court, Mr. Abdul Hamid has referred to eases reported in 12 DL R (S C) 232 and 14 D L R

272. Unfortunately ‑none of these cases are applicable to the facts of the present case. In he 12 D L R case it was laid down that law requires corroboration of an accomplice by independent evidence. Whereas in the 14 D L R case it was held that in the absence of corroboration from an independent witness, there can be no conviction in a trap case. This is not a trap case nor is there evidence of an accomplice in this case. The clear distinction between the facts of this case and those of the cases cited should not have been ignored by the learned Advocate. The submission of Mr. Abdul Hamid that P. Ws. 7 and 8 were not witnesses of occurrence is correct; but it is not correct to say that these witnesses were treated as eye‑witnesses. These witnesses deposed to possession of the tank by the complainant and a close reading of the relevant portion of the appellate judgment would show that it is in that context that the said Court made the observation that both P. Ws. 7 and 8 are natural and competent witnesses and there is no reason to disbelieve their evidence. It has next been argued by the learned Advocate that it was incumbent upon the Courts below to deal with the case of each of the accused separately or to discuss the evidence against each of the accused in respect of the charge under section 147, P. P. C. On this point I have been referred to a Single Bench decision of the Madras High Court reported in 16 Cr. L J 809 wherein it was held that in a charge of rioting where a number of men are accused, the Magistrate should deal with the case of each of the accused separately or discuss the evidence against each of the accused, especially where evidence against each of the accused is by no means equally strong. In the instant case the evidence against all the accused is of uniform nature and as such the evidence against each of the accused is equally strong. Besides, it appears from the judgment of the appellate Court that he considered the evidence in proper light and observed that there is overwhelming evidence of P. Ws. 1, 2, 3, 4 and 6 in support of the prosecution case that the 9 petitioners came variously armed to the tank forming themselves into an unlawful assembly and in prosecution of the common object of that assembly to assault P. Ws. 2, 4 and 6 committed rioting by actually assaulting 3 of the witnesses. He further stated that the witnesses proved beyond reasonable doubt that the petitioners Tamiz and Quyyum injured P. W. 2 by striking with a sharp‑cutting weapon, i.e., Ballam and by the handle of the Ballam respectively, that petitioner Mehrab, Majid and Rashid injured P. W. 6 and petitioners Makil, Azad, Gani and Lutfor caused injury to P. W.

4. Thus it cannot be said that the case of each of the individual accused was not considered by the Courts below. Mr. Abdul Hamid's last submission is that separate sentences for offences under sections 147 and 324 of the Pakistan Penal Code are not legal and one of the sentences should, therefore, be set aside. This is a point of substance. It was held in the case of Mamtazuddin and others v. The Crown 8 D L R 95 that separate sentences under section 147 as well as under section 426 are not legal although the conviction under both the sections is valid. Shadi Lal, C. J. of Lahore High Court held in the, case of Kehar Singh and others v. Emperor A I R 1934 Lah.614 that where an accused is convicted under section 324, P. P. C. for causing hurt with dangerous weapons and under section 148 for committing a riot, it is proper to pass only one sentence under one or the other of the two sections. Mr. Abdul Hamid has, in the end, prayed for reduction of the sentence characterising it as severe. I do not consider a sentence of R. I. for four months under section. 147, P. P. C. to be severe. The sentence passed on petitioner No. 1 Tamizuddin under section 324, P. P. C. is set aside. The Rule is discharged subject to setting aside of the sentence passed on Tamizuddin under section 324, P. P. C. Order accordingly.