P L D 1964 Dacca 704 (PLP)

The learned Assistant Sessions Judge, on a consideration of the evidence in this case, disagreed with such unanimous opinion expressed by the Assessors and came to a finding that the appellant was guilty of the said offences and convicted him accordingly. He sentenced appellant to suffer rigorous imprison ment for a period of two years under section 473 of the Penal Code and another period of three years under section 474 of the said Code. It was further directed that the sentences would run consecutively. Hence this appeal. At the hearing of this appeal, appellant was represented and, if we may say so, very ably represented, by Mr. Abdul Malek who appeared before us. Learned Advocate for the appellant took us through the judgment pronounced by the learned Assistant Sessions Judge as well as the entire evidence in the case. He has argued that on the evidence as led by the prosecution the conviction of appellant under section 473 of the Penal Code cannot be sustained at all. He has further argued that in respect of the charge under section 474 of the Code, the only evidence upon which the conviction of appellant could be based, must, of necessity, be founded on two Pakistan Passports bearing Nos. A374547 and A348371 which have been marked as Exh. 1 (1) and Exh. 1, respectively. With regard to the aforesaid Passports he has submitted that the evidence is most unsatisfactory and that, in any event, the attention of the accused was not drawn to the incriminating evidence with regard to the said Passports in his examination under section 342 of the Code of Criminal Procedure. Learned Advocate has argued that, under the circumstances of the case, where a mass of confusing documents had been brought on record without even a formal proof of the same, the question as put to the accused in his examination under the aforesaid section 342, must have been unintelligible to him when he was merely told that a number of passports and other documents were found in his possession. Elaborating his argu ment, he has further contended that there can be no manner of doubt that the accused was prejudiced in this behalf and that his conviction, therefore, under the said section 474, must also be set aside. Learned Advocate has further strenuously urged that the trial of the appellant has also been vitiated on account or misjoinder of charges. He has, however, submitted that, in the light of the facts and circumstances of the case, the accused should not be asked to face a retrial even if his conviction is set aside by this Court. We would now turn to the merits of this case and examine the arguments noted above. In this case the prosecution has examined as many as eleven witnesses and nobody was examined on behalf of the defence. The most striking feature of the case is that the prosecution was conducted in total disregard of the Evidence Act. A mass of papers were brought on record including some passport booklets without a proper identification of the same. The seizure lists in respect of the aforesaid search have not been legally proved. Most of the signatures of the witnesses have also not been similarly proved. It would be seen that the police had searched the quarters of the accused on the 18th of June 1957. It is alleged that various articles were found in his possession. Some were re covered from inside the but in which the accused lived and some from outside the same under a Madar tree or a cluster of banana trees. The manner in which the prosecution has led evidence makes it impossible to identify which of the aforesaid documents were found inside the but and which were found outside it. It is true that there were separate seizure lists, but none has been proved in accordance with law. In spite of some exhibit marks put by the learned Assistant Sessions Judge in the order‑sheet maintained by him, only two passports (which we will notice hereafter) can be definitely said to have been found in the house itself. Before we discuss this point any further, we would like to quote the evidence of P. W. 8, Ramjan, which is rather illuminating, and we quote the same as follows: "Many days back Afsar's quarter was searched by police. Many passports, forms and seals were recovered. Somebody threw a leather box to the banana plants. Police seized it. Some passports, papers and seals were found therein. The contents were shown, seized and inventory made and signed by Razzaque and Yusuf." It seems that according to the evidence of this witness whatever was seized by the police was found inside a leather box which was recovered from near a banana tree. Although he speaks of Afsaruddin's quarters being searched by the police, he does not say that any document was found inside the hut. This is a sample of the confusing state of evidence in this case and no useful purpose would be served by further discussion of the same. It, however, appears from the evidence of P. W. 1 Zulfiqar Hossain, who, at the relevant time, was an Inspector, District Anti‑Corruption Branch, Mymensingh, that on the aforesaid date he recovered Pakistan Passports Nos. A374547 and A348371 from inside a Machan within the but occupied by the accused. The aforesaid passports have been marked as Exh. 1 (1) and Exh. 1, respectively, by the learned Assistant Sessions Judge, not in the transcript of the evidence which he recorded, but separately in the order‑sheet maintained by him. We do not think that this is a proper way of marking exhibits in a case. It is, however, clear that in respect of two booklets bearing the aforesaid passports numbers, we can point our finger at them and identify the same. It is the definite case of this witness that they were found inside the quarter of the accused and we have no reason to disbelieve this evidence. Thus, these two passports are the only documents about which it can be definitely said that they were found inside the quarters occupied by the appellant. We shall deal, hereafter, with the prosecution case in respect of the aforesaid passports. As to the rest of the case, it is sufficient to say that the recovery of certain materials which were found within the aforesaid leather box underneath a Madar tree or a banana tree cannot be described as articles which were found in possession of the accused; they were found outside the quarters occupied by him. The evidence of one of the witnesses, namely, P. W. 4 Md. Yusuf is, that he saw some women in the but of the accused throwing a suit‑case. In this connection, we would like to refer to the sketch map of the locality which P. W. 1 Md. Zulfiqar Hossain has pre pared. From his cross‑examination it is found that the place marked `H' is the place from where the leather case was recovered. Furthermore, quarter No. 15A, in which the accused is alleged to have resided, is marked as `A'. It would be noticed that in between 'A' and 'H' there stands another house, namely, quarter 15B, occupied by people other than the accused. It is obvious that it is simply impossible for anybody to throw a leather case from 15A to the place which has been marked as `H'. Further more, according to the evidence, the suit‑case was thrown from the house of Afsaruddin by a woman. If the identity of the woman cannot be established, we do not think that the possession of the suit‑case together with its contents can be imputed to the accused. P. W. 4 Md. Yusuf cannot identify the woman who remains unknown. He also does not specify the place from which the suit‑case was thrown. In these circum stances, anything found by the police within the suit‑case underneath the Madar tree or the banana tree cannot be said to have been recovered from the possession of the accused. We have already stated above that apart from the two passports mentioned above, it is impossible, from the evidence (such as can be said to be legally admissible) in this case, to say what was recovered from within the house of the accused and what was recovered from outside. Turning back to the passports, the evidence of the Issuing Officer, P. W. 5 Borhanuddin Ahmed, is, that he was an Additional District Magistrate and Passport Officer in the district of Mymensingh at the relevant time. His attention being drawn to his alleged signatures over the printed writing "Passport Officer", he stated that the signatures purporting to be his were not actually so. It further transpires from an examination of the Passport booklets that his signatures on the photographs of the recipients of the passports have not been said to be forged. They appear to be genuine and it has not been denied that they are not so. From a comparison between the signatures which appear above the writing "Passport Officer" and the signatures on the photographs appended to the passports it appears to us that they seem to be the same. They also appear to be similar to the admitted specimen signatures of the witness. However, he is in a better position to say whether the signature, which he says is not his, is really so. We have also no reason for rejecting his evidence. The position that emerges from the entire evidence in this connection boils down to this, that the two booklets were genuine passport booklets. The seals of the office of the Passport Officer (Mymensingh) on the said passports are genuine. There are also persons answering the names of the recipients of the passports and such persons have been examined by the police but not produced in Court to give evidence. The photographs on the passports are genuine and it has not been denied that they are not so. There is evidence to the effect that the Passport Office at Mymensingh maintains an Issue Register which would show whether the said passports were issued to their recipients. In spite of the existence of such Issue Register, the same was withheld by the prosecution. The said register would have further shown whether the owners of the said passports had received them. Learned Advocate for the appellant has rightly contended that in the circumstances of the present case, the evidence of the alleged recipients (owners) of the passports was very material and, furthermore, that the Issue Register maintained in the Passport Office at Mymensingh was also a material piece of evidence. We have been asked to draw an adverse inference against the pro secution for not producing such evidence. We hold that the alleged recipients of the two passports are material witnesses and that the said Issue Register is also an important document of vital consequence in this case. We think that an inference should be drawn to the effect that, if the Issue Register had been produced, it would have shown that passports were, in fact, issued by the said Passport Officer. Furthermore, if the owners or recipients of the said passports were produced as witnesses by the prose cution, they would have proved that they had received the passports. In these circumstances, forging of the signatures of the Passport Officer on the said Passports do not carry the prosecution very far. There is no evidence that the appellant had forged those signatures. It would be correct, in a sense, to say that the passports were forged. This would only mean that the signatures of the Passport Officer were not genuine. But, in the background which we have set out above, it would be a far fetched inference that the accused must have known that they were not genuine. It would be still more far‑fetched to infer that the accused had kept those passports in his possession with a view to use them dishonestly. But the greatest difficulty, which the prosecution faces in this behalf is, that the attention of the accused appellant was not drawn, in his examination under section 342 of the Code of Criminal Procedure to the incriminating circumstances upon which reliance was placed to convict him under section 474 of the Penal Code. The omission on the part of the learned Assistant Sessions Judge to draw the specific attention of the appellant to those passports must be held to have prejudiced him. We, therefore, hold that the trial was vitiated on this ground alone. There is also another ground on which we must hold that the trial was a mistrial. We have set out the charges against the appellant upon which he was tried by the learned Assistant Sessions Judge. It is obvious that there is no nexus between the possession of instruments for counterfeiting and the possession of forged documents as specified in the charges. The trial of the accused, in respect of both the charges, is undoubtedly a misjoinder of charges which has vitiated the trial. Possessing instruments for counterfeiting unconnected with the forged docu ments alleged to have been possessed by the appellant cannot be said to constitute a part of the same transaction within the meaning of section 239 of the Penal Code. The appellant could not have been tried; in accordance with law, on the aforesaid charges, in one and the same trial. The learned Advocate for the State also frankly conceded that he could not support the conviction of the appellant. The conviction of the appellant and the sentences passed upon hint must be set aside and we accordingly do so. The next question is : Should we direct a retrial of the appellant? It would be noticed that the appellant was arrested on the 18th of June 1957. Near about seven years have elapsed since that date. In these circumstances, we think that we should not ask the appellant to face another trial. We, therefore, refrain from making an order to that effect. The result, therefore, is, that the appeal is allowed and disposed of in accordance with the orders we have passed above. It is directed that the appellant be set at liberty forthwith, if not detained in connection with any other matter. A. S. CHOWDHURY, J.‑I agree. S. Q. Appeal allowed.