P L D 1965 Dacca 92 (PLP)

SATTAR, J.‑This appeal is by fourteen persons who along with eight others were placed on trial to answer a charge under section 395 of the Pakistan Penal Code. The trial was started with the aid of 4 assessors but concluded with 2 only. One of them found all the accused not guilty but the other assessor found all the appellants and some of the acquitted accused guilty and others not guilty. The learned Judge convicted the appellants under section 395 of the Pakistan Penal Code and sentenced Dil Muhammad Mondal to five years' rigorous imprisonment and the others to three years' rigorous imprisonment each. The other accused persons were acquitted. The prosecution case shortly stated is that P. W. 1 Yakub Ali Mallick used to live at the house of the father of P. W. 8 Rashida Khatun at Bangalpara after he married the latter. On his homestead there were three huts‑one is a western bhiti hut which is a tile‑shed with a kitchen. Of the two other huts one is situated on the southern side and the other on the eastern side. There is a mud‑wall on the northern side of his homestead with straw roof. It is said that on Friday, the 21st Bhadra, 1369 B. S. at about 4 p.m. P. W. 1 was sitting on the outside verandhah of his eastern but and was engaged in preparing a wooden stool. At about that time 30/35 persons including the accused persons armed with lathis, swords, kivich, daggers, sulpis, falas etc. fell upon his homestead with loud noise of. On seeing this P. W. 1 fled away and stood on the western side of his homstead. Thereafter the miscreants broke open the sadar daraja and entered inside the complainant's homestead and broke the western bhiti tile‑shed, northern mud‑wall and the eastern bhiti hut. Lastly, the doors and windows of the southern but were also broken. The complainant's two wives P. W. 8 Rashida Khatun and Fuljan were tied with rope and two of his minor sons were held by hands. After raising to the ground completely the homestead of the complainant, the dacoits looted 25 maunds of paddy kept in 8/9 gunny bags, 3 maunds of jute and 2 steel trunks containing cash to the extent of Rs. 1,000 and gold ornaments, namely, 19 gold padaks and two gold kadams, approximately valued at Rs. 1,

000. It is said that the miscreants had brought one buffalo cart and by means of this cart they carried away the looted property as well as the two wives and two minor sons of the complainant. After the departure of the dacoits P. W. 1 Yakub Ali Mallick and some of the witnesses went to the place of occur rence. The complainant however, apprehending danger to his life hid himself for about three days after the occurrence and then went to Manda Police Station on Tuesday, following the date of occurrence. The Officer-in-charge of Manda Police Station instead of recording the first information report rebuked the complainant. The complainant then hired a boat and went to Atraighat and form there to Rajshahi Sardar where he filed the petition of complaint on the 13th of September 1962, in the Court of the Additional District Magistrate, Rajshahi. The learned Magistrate after examining the complainant sent the petition of complaint to the Sub‑Divisional Officer of Naogaon for making a preliminary enquiry. The defence taken in this case is that there was no occurrence as alleged by the complainant and the entire case is a false one which was the outcome of land dispute between the complainant and accused Dil Muhammad and others. The prosecution has examined ten witnesses. Besides P. W. 1 the complainant, all of them claimed to have seen the occurrence. The evidence of this witness in short is that on the 21st Bhadra 1369 B. S. at about 4 p.m. these appellants along with others being variously armed attacked the house of P. W. 1 and demolished the kitchen, the northern mud‑wall, the eastern bhiti ghar and the doors and windows of the southern bhiti ghar. All the huts on the homestead of P. W. 1 were thus destroyed. The accused party had brought a buffalo cart in which they carried about 8/9 bags of paddy, 3 maunds of jute, 2 steel trunks, two wives and two minor sons of the complainant. P. W. 1 in his evidence has stated that on the date of occurrence at about 4 p.m. he was working on a wooden stool in his house. Just at that time the accused persons and others numbering 30/35 armed with swords, kirish, daggers, lathis, sulpis, fala, etc. entered his homstead from the eastern side raising cry. They were prepared to assault him and on this he ran away raising alarms. He went to the western side of his homestead and from there saw these accused persons entering his homestead, after breaking the sadar darja. The accused persons and others demolished the kitchen, northern mud‑wall and pub‑bhiti dwelling houses. They also completely damaged a cement ring‑wall situated 4/5 cubits north of the pub‑bhiti ghar. The witness stood at a distance of 3/4 rashis west of his homestead and saw everything. The miscreants, it is said by these witnesses, tied his two wives with a rope and one of his sons was held by them. Ultimately they took away 3 maunds of jute, 25 maunds of paddy and two steel trunks containing Rs. 1,000 in cash and some ornaments approximately valued at Rs. 1,

000. The two wives and the two minor sons were physically lifted and carried by force to the buffalo cart. This witness has further stated that before the date of occurrence, i.e. on the 14th August 1962, some of the accused persons went to assault P. W. 2 Rahmat ullah Shah. The witness intervened and this enraged the accused persons. These accused persons then on the 5th of September 1962 attempted to attack his house at night, but left as he raised alarm. The evidence of P. W. 1, with regard to the motive for these accused persons in attacking his house has been supported by P. W. 2 who has stated that on the 14th August 1962 his cousin brother and accused Taleb who is the nephew of accused Dil Muhammad had a quarrel regarding the passage of their respective bullock carts. This was a chance of mara mari which he and others averted. For this accused Dil Muhammad became ready to assault him and when P. W. 1 intervened he was not only threatened but chased by accused Dil Muhammad and others. Attention of P. W . 1 has been drawn to the petition of complainant wherein he did not state that both of his wives were bond with a rope. It appears that P. W. 1 did not even state this in the committing Court. The first question that has occurred to us in this case is whether accepting the prosecution evidence in its entirety it can be said that an offence under section 395 of the Pakistan Penal Code has been established. It is clear from the statements of the alleged eye‑witnesses that the accused persons did not go to the house of P. W. 1 to commit theft or extortion. Whatever might have been their motive it was not to commit theft or extortion. The mere fact that after destroying the huts alleged to be belonging to P. W. 1 they carried away some articles from those huts does not bring their offence within the mischief of section 390 which defines `robbery' and section 391 which defines `decoity'. Theft amounts to robbery only if in order to the committing of theft or in carrying away or attempting to carry away properties obtained by theft the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. There is total lack of evidence in this regard in the instant case. The evidence if accepted no doubt establishes an offence of theft but it cannot be said that to that end any violence was used. If the purpose of the appellants in attacking the house of P. W. 1 is held to be to dispossess him and his wife P. W. 8 Rashida A from the homestead, which is not an unwarranted conclusion from the prosecution evidence, then the use of force to that end cannot be tacked on to the commission of theft to make the offence one of robbery or dacoity according as the persons concerned numbered five or more. We are, therefore, of th opinion that the conviction of the appellants under section 395 of the Pakistan Penal Code cannot be maintained in any view of the matter. We are not unmindful of the evidence on record that the culprits came with a cost but this by itself even assuming it to be a fact cannot we are afraid, necessarily point to the conclusion to the exclusion of any other hypothesis that they must have come with the intents of committing dacoity. We are then to see if the appellant can be convicted for any other offence. In the absence of a charge the only offence, .in our view, the appellants can be convicted of, if the prosecution evidence is accepted, is theft. It may be argued also that a conviction for mischief or wrongful restraint will not be unwarranted by law. We have already seen that P. W. 1 did not lodge any information with the Police. His explanation is that he went to the Thana on Tuesday following the date of occurrence but the Officer‑in‑charge refused to record any F. I. R. The explanation that he kept himself concealed for three days out of fear of the accused persons is hardly worthy of credit. It further appears that he did not go to Naogaon, the Sub Divisional Head quarters, to file the petition of complaint but went to Rajshahi though Naogaon falls on his way to Rajshahi. These facts clearly ti1row much doubt on the prosecution evidence which has been produced in this case. It is admitted that Dil Muhammad who is said to be the leader of the accused party influential person of village Pantakata had differences with P. W. 2 of the witnesses examined. P. Ws. 5, 6, 7, 9 and 10 are relations of P.

2. P. W. 8 is the wife of P. W.

1. It was .suggested to P. W. 3 that he was a labourer of P. W. . 1 as against P. W. 4 the suggestion was that as P. W. 1 had recently become Matbor of their village, this witness deposed against the accused persons falsely. The defence in this case has examined two witnesses. D. W. 1 Elimuddin Shah is the husband of Rahima Bibi, the sister of Rashida Khatun. His evidence is that the father of Rahima and Rashida Ledu Shah left 10/12 bighas of land including homestead and tank. The culturable lands are cultivated through borgadars and the produce is shared by Rahima and Rashida equally. Ledu had 3 huts of which the western one is the kitchen. There are wo sleeping rooms, one on the pub‑Mitis and the other on the dakshin‑Miti. The wife of the witness got the dakshin bhiti ghar and Rashida pub‑Miti ghar. Rahima and the witness do not reside at Bangalpara but they go there at harvest time. At that time they reside in dakhshin‑bhiti ghar. Rashida sold her pub‑bhiti ghar after her marriage with Mombol. The witness has then stated that no occurrence took place on the date alleged by the prosecution on the homestead of his father‑in‑law. The evidence of this witness further is that Sutir Dara was excavated by Dil Muhammad with the help of about 1,500 persons for the benefit of Bora Mahal of their village. This was opposed by the inhabitants of Bangalpara but they did not succeed. It has also been stated by this witness that Sutirdara during Bhadra contains about 3/4 cubits deep water and it cannot be crossed without a boat. It was suggested to this witness that he never resided at Rangalpara and that he and his wife do not take any usufruct of the lands left by Ledu. The evidence of this witness that he was on the date of occurrence present at Bangalpara in the house of his father‑in‑law and that there was no occurrence as alleged by the prosecution does not appear to have been very seriously challenged in cross‑examination. P. W. 1 Yakub Ali Mallicks claims is that all the properties left by Ledu, his father‑in‑law are enjoined by him and his wife Rashida Khatun. He has not given any reason for Rahima's voluntarily giving up her claim in the said properties. The claim of P. W. 1 appears to be preposterous and cannot be accepted. D. W. 2 Rahmatullah Shah has proved that Dil Muhammad and two others purchased some lands from Tarek and Akher in 1961. Before purchase P. W. 7 Samiruddin Shah used to possess this land. After purchase a dispute was going on between Samir and Dil Muhammad. In cross‑examination it has been elicited from this witness that Tarek and Akher sold some portion of the self‑same lands to P. W. 1 Yakub Ali Mallick and others. The evidence of this witness clearly establishes that there was enmity going on between P. W. 1 and some of his witnesses on the one hand and Dil Muhammad and some others on the other. These facts and the delay in filing the petition of com plaint clearly indicate that the prosecution has not only suppressed the real motives of the appellants in attacking the house of ~. W. 1 even if there was an occurrence as alleged but also has not disclosed all the facts relating to the occurrence. There has been clear embellishment in the prosecution case. It is admitted by some of the witnesses that the village Chowkidar and Dofadar reside about one mile from the place of occurrence. One Union Council member also resides at a distance of about half a mile from that place. No information was sent to any of these persons. The evidence clearly indicates that P. W. 1 was backed by a very influential person, namely, P. W. 2 Rahmatullah Shah. If P. W. 1 could not go to the Thana immediately after the occurrence or to the Dofadar or Chokidar or Member, we do not see why Rahmatullah or one of his relations or friends could not go and inform these persons. The prosecution evidence in this case suffers from suppression of material facts and is full of embellishments. Where the suppression and the extent o e embellishment cannot be determined it is unsafe, in our view, to base any conviction on such evidence. Regard being ha to the facts disclosed we have felt that in the present case the accused persons cannot be convicted of any offence. The trial in the instant case, as we have already seen, started with four Assessors but ended with two. The learned Judge by his order dated 28th May 1963, discharged two of the. Assessors as he felt that they were prejudiced against the accused party. We do not find any provision in the Code of Criminal Procedure for discharging Assessors. Section 284 of the Code of Criminal Procedure provides that when the trial is to be held with the aid of Assessors not less than three and, if practicable, four shall be chosen. Subsection (1) of section 285 lays down that if in the course of a trial at any time before the finding any Assessor is for any sufficient cause prevented from attending throughout the trial or absents himself and it is not practicable to enforce his attendance, the trial shall proceed with the aid of other Assessor or Assessors. Subsection (2) lays down that if all the Assessors are prevented from attending or absent themselves the proceedings shall be stayed and a new trial shall be held with the aid of fresh Assessors. It is true that in the Criminal Procedure Code there is no specific remedy provided for a contingency as the present. The learned Judge seems to have taken the view that the principle underlying in subsection (1) of section 285 of the Code applied to the present case. As to the applicability of the principle in circumstances of this case Mr. Mesbahuddin, however, has no advanced any argument. Moreover we have allowed the appeal on merits. In these circumstances we do not feel called upon to examine the said question relating to validity of the order of discharge of two of the Assessors and of the constitution of the Court thereafter. Result, therefore, is that this appeal is allowed. The conviction and sentences of the appellants are set aside and they are acquitted of the charge levelled against them. They are directed to be set at liberty, if not wanted in any other connection. ABU MUHAMMAD ABDULLA, J.‑‑I agree. K. B. A. Appeal accepted.