1968 P Cr (PLP)

FAZLE-AKBAR, J.

This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of East Pakistan, acquitting the seven respondents who had been convicted and sentenced by the Sessions Judge of Pabna. The seven respondents along with 17 others, were brought to trial before the Sessions Judge on charges under sections 148, 302, 302/34, 324 and 43o of the Pakistan Penal Code. The Sessions Judge convicted the seven respondents under section 326, I'. P. C. and sentenced them to rigorous imprisonment for seven years each and acquitted the rest. On appeal, a Division Bench of the High Court set aside their conviction and sentence and acquitted them of all the charges. The incident occurred on the morning of 30th March 1963, at 9 a. m. in the house of Basiruddin Bepari at Char-Dhopakhola. 7 he origin of' the trouble was a char which re-appeared five or six years back on the eastern bank of the river Jamuna. There was a dispute between the villagers living on the eastern bank and those living on the western bank over the possession of this char. According to the prosecution, on the morning of 30th March 19b3, when the villagers of the eastern bank assembled in the house of Basiruddin Bepari at Char-Dhopakhola to attend a Ullish which was going to be held by Wahed Molla of Char Latifpur, the accused party numbering 200/250 came armed with deadly weapons, set fire to Basiruddin' s house, attacked them and after injuring a number of persons took away some of the injured persons. The case as presented in the trial Court was that on the complainants' side as many as 7 persons were killed and 8 persons were injured in the said riot. The accused did not put forward a counter-version in their statements under section 342, Cr.P.C., but a suggestion was made to the prosecution witnesses in cross-examination to the effect the, the complainant party had gone there armed to take possession of the char lands of the accused party and that there was a free fight in which men of the complainant party received injuries. The Sessions Judge in his long judgment after making an attempt to appreciate the facts and circumstances in relation to the opposing versions set up by the two sides, recorded his finding thus:

"I hold that the prosecution has failed to prove beyond doubt that there was any unlawful assembly to commit riot at Char-Dhopakhola in the Bari of Basir Bepari on the 16th Chaitra, 1369 B. S. in order to assault Wahed Molla and his men. The defence suggestion that the occurrence was held for forcibly reaping away the paddy grown by the accused party and there was a free fight between the parties cannot be wholly brushed aside. He then proceeded to consider "whether, the accused exceeded the right of private defence accepting the contention of the accused that there was a free fight between both the parties over cutting of crops in the char prevails". The Sessions Judge though he did not think it fit to record a conviction of murder against any of the accused persons, found it possible to convict seven of them under section 326, P. P. C. on the ground that they had exceeded their right of private defence of person and property. The convicts appealed to the High Court. The learned Judges of the High Court disposed of the appeal in a somewhat summary manner. The judgment covers about four pages. The first two para graphs contain the statement of the case. In the third paragraph while stating findings of the trial Judge they expressed their agreement with his conclusion that there was no occurrence in the )rouse of Basir Bepari, as alleged by the prosecution. In the fourth paragraph containing 25 lines they practically gave their decision in these words:

"There is no evidence on record to show that an occurrence took place on the disputed land in the Char over the cutting of paddy. The prosecution case regarding the occurrence is restricted to the house of P. W. I Basiruddin Bepari. The time, place and manner of occurrence, as disclosed by the prosecution, having once been disbelieved and there being no evidence on record to show that the occurrence took place elsewhere, we think the learned Sessions Judge was wrong it) shifting the place of occurrence Without any basis for it and to have convicted the appellants before us on the basis of suggestions thrown to the prosecution witnesses during cross-examina tion that there w-as 6i free fight between the parties in which number of people on both sides were injured. In a criminal case, it is the duty of the prosecution to prove its case beyond any reasonable doubt. There is no corresponding onus on the accused in a criminal case to disprove his guilt- As such, the learned Sessions Judge in the present case should not have, in the absence of any other evidence on record after disbelieving the prosecution story, convicted the accused on the allegation of a free fight, of which there seems to be no evidence on record." In the fifth paragraph, they pointed out that in view of the medical evidence the identification of the two dead bodies as those of Nawab Ali Matbar and Amjad Hussain belonging to the complainant party, could not be relied upon. Here, we might mention that there was also a third dead body which was identified as that of Amiruddin Sarkar of Char Latifpur, but the learned Judges made no mention whatsoever of the said deceased in their ,judgment. In the last paragraph, the learned Judges observed that the learned Counsel for the State had found it difficult to support the judgment of conviction of the appellants before them, They, therefore, acquitted them. In view of the order that we propose to pass in this case we do not think it desirable to enter into merit of the case. We consider that it is a matter for regret that the learned Judges in the High Court which was the final Court of fact did not see it fit to discuss the evidence or to take into consideration the grounds on which the Sessions Judge found it possible to convict the respondents. This short judgment of the High Court in a serious crime like murder contains no examination of the facts or an attempt to assess the evidence in the case. When the learn fudges formed a view in favour of the appellants before them, they should have themselves expressly examined the facts and circum stances and expressed their reasons in detail for disagreeing wit the view formulated thereon by the Sessions Judge in conviction some of the accused persons. Unfortunately, this was not done. The learned Judges merely pointed out some error in the judgment of the Sessions Judge. Their proper line of approach should have been not merely to stress the defects in the judgment of the trial Judge but to survey the whole case in its factual and evidentiary aspect and then to estimate the probabilities in relation to the( allegation of facts. For the reasons stated above, we are of the opinion that the judgment of the High Court cannot be regarded as a proper judgment in accordance with law. We are, therefore, constrained to set aside the judgment of the High Court and remit the appeal to that Court for disposal in accordance with law. Bail granted by this Court will continue till disposal of the appeal by the High Court. Case remanded.