P L D 1967 Dacca 281 (PLP)

A. SUBHAN CHOUDHURI, J.‑Appellants Rokunuddin Bhuiyan and Azizullah were placed on trial in the Court of the learned Additional Sessions Judge, First Court, Bakarganj to answer charges under sections 302 and 302/109 of the Pakistan Penal . Code respectively. Another accused Bazlur Rahman was also tried in the same trial under section 302/109 of the Penal Code. The prosecution case is that there are five huts in the house of complainant Hare Krishna Sikdar and P. W. 4 Lakshmi Kanta Sikdar. Two of them are on the north bhiti of which the western one belongs to deceased Narayan and the eastern one belongs to Kartick. The south bhiti but belongs to Manindra's father Basanta. Chinta Haran lives in the west bhiti but while the east bhiti but belongs to Hare Krishna and Lakshmi Kanta. On the night of 10th Falgoon, 1367 B. S. complainant and his brother Lakshmi Kanta were sleeping on the southern side of the open western verandah of the east bhiti but while a deaf and dumb woman, Ramani by name, was sleeping in the main room of the said but with Lakshmi Kanta's minor son and daughter. Towards the end of the night complainant heard some sound of the dumb woman when he and Lakshmi Kanta woke up and saw a man jumping out of the room with Khaki dress by removing the Hogla mattress hung at the door. They raised alarm crying "thief, thief" when Narayan, Kartick and Manindra rushed out of their huts and chased that man. They also found two other men in Khaki dress. Of those three persons two were armed with guns. Hare Krishna, Lakshmi Kanta, Narayan, Kartick and Manindra chased all the three persons up to the Khasari field of Bepin Ojha and Manindra and Narayan succeeded in catching hold of one of them, namely, accused Azizullah who had no weapon in his hand. This accused then asked his companions to open fire whereupon accused Rokunuddin fired a short which struck Narayan on his throat. He fired from the gun again and hit Manindra on his right hand. Thereafter the other accused Bazlur Rahman fired two or three blank shots. Narayan fell down on the ground and all the three accused made good their escape. Complainant and others then carried Narayan to their house but on the way Narayart succumbed to the injury. The alarms raised by the complainant and his companions attracted many people to the scene of occurrence such as Gouranga, Benode, Kartick, and Gopal. To them the complainant and his companions narrated the whole incident. Ramani also by gesture and posture showed them that while asleep she was molested by the accused. The complainant went to the thana along with some others and lodged F. I. R. After holding inquest on the dead body of Narayan, the officer in charge of Bakerganj Police Station forwarded it to the Barisal Hospital for post‑mortem examination and investigated the case. He visited the place of occurrence and seized some blood stained earth and a piece of bamboo lathi under seizure list. He also seized two live cartridges and four empty cartridges. The Investigating Officer then prepared a sketch map with an (index. After examining witnesses he made over charge of the case to S. I. Daliluddin on 6‑10‑1961 as he was proceeding on leave. The latter on perusal of the records submitted charge sheet against the three accused persons on 18‑5‑1962. After holding an enquiry under Chapter XVIII of the Code of Criminal Procedure, a competent Magistrate committed the three accused to the Court of Sessions to stand their trial under sections 302 and 302/109 of the Penal Code respectively. Defence denied the occurrence as alleged by the prosecution. Their positive case was that P. W. 4 Lakshmi Kanta was caught red‑handed by them in course of their patrol duty while he was carrying a bag of paddy. On being arrested Lakshmi Kanta raised alarm and his companions including some of the P. Ws. came to his rescue. The accused disclosed their identity and claimed to have been on public duty as police officers and requested the complainant and his people not to obstruct them in the performance of their public duty but instead of listening to their advice they attempted to snatch away Lakshmi Kanta from them. They also tried to snatch away the rifles from the hands of Rokunuddin and Bazlur Rahman and in the scuffle a shot was fired from the gun of Rokunuddin, which might have hit Narayan. Bazlur Rahman resorted to firing blank shots to disperse the assailants. Thereafter the accused went back to the thana and lodged F. I. R. against the complainant and others who in order to save their skin concocted the present case and lodged a false F. I. R. alleging that the accused entered the but of the dumb woman Ramani for ravishing her. Prosecution examined as many as 14 witnesses while the defence examined none. On appraisal of the evidence the learned trial Judge convicted the appellants Rokunuddin and Azizullah under sections 304, Part I and 304, Part 1/109 of the Penal Code respectively and sentenced both of them to rigorous imprisonment for four years each. Accused Bazlur Rahman yeas, however, acquitted of the charge laid against him. A suo motu rule was issued calling upon the Deputy Commis sioner, of Bakerganj as well as the appellants to show cause why the sentences awarded to the appellants should not be enhanced and why they should not be given the maximum punishment as provided under section 304 of the Penal Code. Mr. Abu Hussain Sarker representing the appellants has taken us through the judgment and the evidence recorded by the Court below. P. Ws. 1 and 3 are doctors and P. Ws. 13 and 14 are police officers while P. W. 12 is the deaf and dumb woman Ramani‑ who, however, could not be examined because oath could not be administered to her. The rest of the P. Ws. are local witnesses. P. Ws. 2 and 4 have deposed to the same facts and exactly in the same manner. They have testified that on the night of 10th Falgoon, 1367 B. S. both of them were sleeping on the southern side of the open western verandah of the east bhiti but while the deaf and dumb woman Ramani slept inside the main room of that but with Lakshmi Kanta's minor son and daughter. Towards the end of the night they heard a sound‑"Hou Mou" of Ramani and woke up from sleep. They saw a man jumping out of the room with khaki dress. On their alarm, Narayan, Kartick and Manindra also woke up and jumped out of their huts and all of them chased that man and saw his two other companions in khaki dress, Two of those persons were armed with guns. They were chased up to Khesari field of Bipin Ojha where Manindra and Narayan caught hold of accused Azizullah who were unarmed. Azizullah then asked his companions to open fire and at this accused Rokunuddin fired a short from his rifle striking Narayan on the throat. He fired two more shots, which struck Mandindra on his right hand. Thereafter Bazlur Rahman fired two or three blank shots. Narayan fell down and so also Manindra. Azizullah who was caught succeeded in making good his escape. Both of these witnesses stated in their cross‑examination that they were accused in the counter‑case. P. W. 2 denied that he stated in the F. I. R. that the time of occurrence was 3‑45 a.m. and that the night was dark. He also denied having stated in the F. I. R. that he was alone when police fired and some time after other inmates came and saw the incident. He also denied a suggestion of the defence that they concocted the injury on Manindra. P. Ws. 5 and 6 are inmates of the house where the alleged occurrence took place and P. W. 7 Braja Mohan claims to have slept in the west bhiti but of Chinta Haran on the night of occurrence having come to this house on invitation. Their evidence is that on hearing cries of Lakshmi Kanta and Hare Krishna they came out and saw three Sepoys running away and all of them chased the three Sepoys and seized one of them, namely, Azizullah in the Khesari field of Bepin Ojha. On being asked by the arrested accused, Rokunuddin fired from his rifle and hit Narayan on the throat. He fired a second time causing an injury on the right hand of P. W. 5 Manindra: In cross- examination P. W. 5 stated that his "hand bone was displaced and it took about a month for treatments." P. Ws. 8, 9, 10 and 11 are neighbours of the complainant. The substance of their evidence is that having heard the sound of gun shot at dawn they went to the place of occurrence and found Narayan injured. P. Ws. 8, 9 and 10 have further stated that they found him lying with a gun shot wound on the throat while P. W. 11 stated that he found Narayan being carried home by his brother. All these witnesses‑P. Ws. 8 to 11‑have further testified that Hare Krishna, Kartick and others narrated the incident to them and they also noticed injury on the hand of Manindra. P. W. I Dr. Atikullah, Medical Officer of Kalisuri Govern ment Dispensary has deposed that on 23‑2‑1961 at 12 a.m. he examined Manindra, son of late Basanta Majumdar and found one penetrating wound having two openings on the medical side of the dorsal aspect of the right band, longitudinal in direction and simple in nature and caused by a bullet. In his cross‑examination this witness was constrained to admit that he did not grant any certificate on the date of examination of Manindra but he gave him a certificate on 26‑2‑1961. P. W. 3 Dr. Noor Muhammad who was Sub‑Assistant Surgeon attached to the Sadar Hospital, Barisal at the relevant time held post‑mortem examination on the dead body of Narayan on 25‑2‑1961 at 11 a.m. His evidence shows that he found one perforating wound, one inch in diameter with inverted margin just on the Pomum adami. On dissection extra vasated dark fluid and clotted blood which resisted washing was found in and around the soft tissues and on further dissection it was found that the trachea oesophagus was perforated and the wound was directed backwards and slightly downwards and forwards on the right side and came out with everted margin two inches in diameter along the lower border of 1st thorasic vertibra on its right side and the vertibral and of 1st, 2nd and 3rd ribs of right side were found fractured. This doctor opined that death of Narayan was due to the injury by gun shot which was anti-mortem and homicidal in nature. P. W. 13 S. I. Daliluddin has only testified to the effect that he took up investigation of the case from his predecessor Chowdhury Mohiuddin Ahmed, O. C. Bakerganj Police Station on 6‑10‑1961 and on perusal of the records he submitted charge -sheet in the case on 18‑5‑1962. P. W. 14 S. I. Chowdhury Mohiuddin was officer in charge, Bakarganj Police Station who recorded the F: I. R. Exh. 1, held inquest on the dead body of Narayan which was produced at the thana and sent it to Barisal morgue for post‑mortem examination. His further evidence is that he found blood marks in the Kalai field and also marks of struggle. He seized blood stained earth and a piece of bamboo under a seizure list. He also seized two live cartridges and four empty cases of rifle cartridges by preparing another seizure list He also prepared a sketch map of the place of occurrence along with an index and eventually handed over the case to S. I. Daliluddin on 22‑6‑1961. Mr. Abu Hussain Sarkar at the outset raised a preliminary objection to the maintainability of the trial without the requisite sanction under section 197 of the Code of Criminal Procedure. He submitted that the appellants were police constables in uniform engaged in the performance of their official duty and that as such their prosecution required sanction by the competent authority. The learned Deputy Legal Remembrancer appearing for the State contended that no sanction was necessary for the prosecution of the appellants inasmuch as in committing the acts for which they faced the prosecution they were not acting or purporting to act in course of their official duty. Section 197, subsection (1) of the Code of Criminal Procedure provides inter alia that when any public servant "is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction: . . . . ." In the instant case appellant Rokunuddin was charged with an offence of murder for intentionally causing the death of a man, namely, Narayan and Azizullah was charged for abetting the commission of the said murder while they were being chased by some persons for having outraged the modesty of woman by entering her dwelling hut. There is no allegation that either, of them committed the offence "while acting or purporting to act in the discharge of his official duty. "Section 197, Criminal Procedure Code applies to a case where the offence with which the accused is charged is alleged to have been committed while acting or purporting to act in, the discharge of his official function. It has no relation with the defence taken in the case. In a case of this nature defence generally takes shelter under plea that a trial without the requisite sanction is invalid and without jurisdiction. The mere fact that the defence raised the contention in the present case that the appellants were engaged in the discharge of their official duty and arrested one man found carrying a bag of paddy at night and that the occurrence took place when the companions of the arrested man tried to snatch him away from the custody of the appellants who are police constables in uniform will not bring the case within the purview of the section 197, Criminal Procedure Code having regard to the language of the section itself. If the defence case on merit is accepted by the Court the appellants will be held not guilty of the offence for which they have been convicted but the allegations made by the defence will not, attract the operation of section 197, Criminal Procedure Code. Reference may be made in this connection to the case of Amrik Singh v. State of Pepsu (P L D 1956 S C (Ind.) 191) in which the Indian Supreme Court observed 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 offence, then sanction would be necessary; and that would be so, irrespective of 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 of A. K. M. Reza and others v. The State (9 D L R 594) the accused who were police officers were placed on their trial under sections 330 and 323 of the Pakistan Penal Code for beating a man and assaulting a woman in connection with a theft. They were found guilty of the charges and were convicted and sentenced to certain terms of imprisonment. On appeal, it was contended on their behalf that the trial was bad inasmuch as no sanction under section 197, Criminal Procedure Code, was obtained before the commencement of the trial as what these accused had done was in discharge of their official duties and it was held that what the appellants did had no connection whatsoever with the discharge of their official duties and sanction under section 197, Criminal Procedure Code for the prosecution of the appellants was, therefore, not necessary. In the case of Syed Ahmad v. The State (P L D 1958 S C (Pak.) 27) his Lordship Cornelius, J., as he then was, delivering the judgment of the Supreme Court observed:‑ "The rule that for the application of section 197, Criminal Procedure Code, a valid test might be that the act alleged against the public servant should lie within the scope of his official duty, and that he should be able to claim reasonably that what he did he did in virtue of his office was laid down by the Privy Council in Gill's case 75 1 A

41. This principle has been cited with approval in a number important cases decided subsequently. Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted, for the purposes of the protection afforded by section 197, Criminal Procedure Code, in a sense wider than that covered by the precise acts which the official is authorised by the law or other instrument governing the matter to perform. The act must, therefore, be one connected with the performance of those duties, and in order that the question should at all arise whether this act should be allowed to be made the subject of a criminal charge, it must be in excess of the exact duties in question. Yet, it must be also an act reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, a reasonable person might assume that he could or might act in that way. That in our view is the sense in which the statement of the Privy Council in Gill's case, viz., that the official should be able to claim reasonably that what he did he did in virtue of his office, should be understood." In the case before us it can by no stretch of imagination be contended that the acts complained of, namely, outraging the modesty of a woman by entering her dwelling but and then killing a man while chasing the culprits for having committed an offence were acts done or purported to have been done while discharging their public duty. What the appellants have been alleged to have done has no connection with their official duty. Their acts were pot certainly within the scope of their official duty and they cannot reasonably claim that what they did they did in virtue of their office. We, therefore, hold that prosecution of the appellants in the present case did not require sanction of the appropriate authority and that the trial has not been vitiated for want of sanction. Incidentally it may be mentioned here that the question of sanction was not agitated before the trial Court and raised for the first time before this Court. Mr. Sarkar next urged that the prosecution case must fail on merits for a variety of reasons. Mr. Abdul Hakim, the learned Deputy Legal Remembrancer has also frankly conceded that the evidence, probabilities and circumstances of the case are such that he was not in a position to support the conviction having regard to the fact that in his view also the prosecution has failed to bring home the charges against the appellants beyond reasonable doubt. Nevertheless, we felt that we should examine ourselves and draw our own conclusion from the circumstances and probabilities disclosed in the evidence. P. Ws. 2, 4, 5, 6 and 7 claim to be eye‑witnesses of the occurrence. Of them P. W. 2 Hare Krishna is the informant. In the F. I. R. he stated that he "was alone when the policeman made the gun fire and witnessed the occurrence in my own eyes. After a while Lakshmi Kanta, Kartick, Monindra, Kula Ranjin, Broja Mohan, Gouranga, Binode Bepari, Pipin Ojha, Narasingha and others came to the place of occurrence and heard about the occurrence and saw the injury of Narayan." This is the first recorded version of the case and it negatives the presence of P. Ws. 4, 5, 6 and 7 at the time of the gun fire; and yet they claim to have witnessed the firing from gun by Rokunuddin and also what preceded the firing. Their testimony, therefore, does not deserve credence. Besides, all of them are closely interrelated and that is another reason why their evidence, fails to inspire belief. The time of the occurrence, as stated in the F. I. R. was 3‑30‑ a.m. and it was further stated that Narayan expired at 3‑45 a.m. The learned trial Court has accepted 4 a.m. as, the time of the incident from a statement to that effect in the F. I. R. of the counter‑case lodged by one of the accused constables. The prosecution did not stick to this version and this is patent from the fact that at the time of the trial an attempt was made to shift the time to dawn. P. W. 2 gave the time as "towards the end of the night" In cross‑examination he stated that "there was darkness in the room but darkness was thin outside." P. Ws. 4, 6, 7, 8, 9 and 10 have all stated that the incident happened at dawn. On 23rd of February dawn starts after 5 a.m. anti it remains deep dark outside up to 5 a.m. Thus the contention of the learned Advocate for the appellants that there has been a deliberate attempt on the part of the prosecution to shift the time to dawn is for the definite purpose of making visibility possible and the story of identification probable cannot be rejected as being without force or validity. The observation of the learned trial Judge that the incident took place at about 4 a.m. when the darkness of the night was thinner is not acceptable regard being had to the fact that at 4 a.m. the while atmosphere remains shrouded in darkness. It is also highly improbable that three constables with a view to have their amorous purpose fulfilled would enter the main room of a but where a deaf and dumb woman was sleeping when two adult male persons Hare Krishna and Lakshmi Kanta were sleeping on the verandah of the self‑same hut. There is also complete lack of evidence as to how the three constables or anyone or two of them effected their entrance into the hut. The evidence of the Investigating Officer (P. W. 14) shows that he found the barrels of the rifles closed with earth at the end. It has further transpired in his evidence that the accused lodged a counter‑case alleging that a man was shot dead as a result of accidental firing due to scuffle. He further stated that there may be accidental firing due to scuffle. It also appears from the F. I. R. of the counter case that the wooden portion of one of the rifles was damaged and the constables sustained injuries. The fact that one of the rifles was damaged and end of a rifle was found closed with earth supports the defence version of the occurrence rather than .the prosecution version. Another important feature of the case is that the evidence of the prosecution witnesses bristles with contradictions. They made numerous statements in the trial Court, which are contradictory to their statements before the police and many of their statements at the trial Court are directly at variance with what they stated before the committing Court. We do not feel called upon to enumerate here all the numerous contradictions regard being had to the fact that due to utter improbabilities and even absurdities as pointed out above we have come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. The result, therefore, is that we allow the appeal and set aside the conviction of the appellants and the sentence passed on them by the Court below. The appellants who are in jail be released forthwith if not wanted in any other connection. The suo motu rule, which forms the subject‑matter of Revision Case No. 283 of 1964 is discharged. BAQUER, J.‑I agree. K. B. A. Appeal accepted.