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Criminal Appeal No. 407 of 1965, decided on 14th December 1967.
S. 302‑Murder‑Evidence showing complexity of accused in dastardly attack on deceased --Corpse, however, neither found nor produced before Medical Officer for post‑mortem examination as to nature of death‑No explanation by prosecution for missing of dead body‑Murder, held, not proved to the hilt.
S. 148‑Rioting armed with deadly weapon ‑ "Lathi" ‑ Not usually regarded as "deadly weapon".
Md. Yasin for Appellants.
X. M. Subhan for the State.
Dates of hearing : 30th November, 1st, 4th and 5th December 1967.
The appellants before us numbering twelve have been convicted and sentenced as under by the learned Additional Sessions Judge, Dacca.
Appellants Fazlul Huq Kari, Jalal, Ali Arshad, Milan alias Miran and Badiur Rahman have been convicted under sections 302/34 and 148 of the Pakistan Penal Code and sentenced to transportation for life under the former section while no separate sentence has been passed under the latter section.
Appellants, Md. Ullah, Abdur Rahman, Jalil Khan, Shah Alam, Abdur Rashid and Shafi have been convicted under section 148 of the Penal Code and sentenced to rigorous imprison ment for two years each.
Appellant Afsar has been convicted under section 147 of the Penal Code and sentenced to rigorous imprisonment for one year thereunder.
The facts of the case are that there was an occurrence of loot, arson and murder in the Chittaranjan Cotton Mills area during the communal not that raged in Dacca and Narayanganj on the 14th of January 1964. It is alleged that on 13‑1‑1964, at 10 p.m., the accused persons along with others held a secret meeting to teach a good lesson to the authority and the Hindus as in their opinion it was a golden opportunity. On 14‑1‑1964, at about 5‑30 a.m., they with some outsiders entered into the compound of the Mill factory and asked the Hindus and Muslims to separate. Apprehending communal trouble the Engineer of the company P. W. 1 the complainant who was incharge of the Mill at that time, sent information to the Administrative officer P. W. 3 Obaidur Rahman who came to the Mill at about 8 a.m., and found inside the Mill the appellants along with some outsiders among whom there was one Mannan. Mannan was asked to go out as he was an outsider and then P. W. 3 Obaidur Rahman checked all the gates and posted Darawn in each gate and closed down all the gates and then he went out by the western gate to see the position of their labour colony along with his orderly. There also P. W. 3 found many outsider who demanded of him to surrender the Hindus otherwise the Mill would be act on fire. P. W. 3 told them that there was no Hindu inside the factory whereupon he was attacked by the mob but was rescued by his orderly who took him inside the Mill. In the meantime at about 6‑30 a.m., a mob of 200 to 300 persons being armed with deadly weapons including the appellants came to attack the Mill and when they came up to the south‑western corner of the Mill, F W. 16 Saijuddin Matbar, P. W, 17 Azizullah and others faced them and persuaded them to go back as it was a Pakistani Mill and on their way the rioters looted two shops of Bakul and Jogesh.
At about 11 to 11‑30 a.m., some of the rioters attacked and assaulted to death Tarak‑‑a Hindu on the western bank of the tank of the company and seeing the assault on Tarak while Sudhir was running away eastward towards the Mill for his safety, the accused Fazlul Huq Kari, Jalal, Ali Arshad, Md. Ullah, Milan, Badiur Rahman, Afsar and Abdur Rashid in furtherance of their common intention murdered Sudhir on the spot. Then on the order of accused Afsar the said accused Fazlul Huq Kari, Ali Arshad, Milan and Badiur Rehman dragged the dead body of Sudhir and threw it in the ditch wherefrom no trace of the dead body was later found.
At 4‑30 p.m., again on that day the accused persons along with others numbering 3,000 to 4,000 being armed with deadly weapons raided the Atpara colony of the Mill where the Hindus took shelter. With the help of the ladder the accused persons scaled over the walls and entered into the colony and committed several atrocious assaults and murders. They only dispersed when the police force came and tear-gassed them. At that time accused Jalal, Rashid, Arshad and Badiur Rahman were found to wash their daggers and blood‑stained clothes in the tank of the colony.
Thereafter the police continued to keep vigil in the Mill area and one Magistrate was also posted there from the next day.
It is alleged that being under the impression that the authorities would take up the matter themselves and as the authorities of the Mill were too busy and panicky, no Ejahar was lodged before the re‑opening of the Mill, that is, till 25‑1‑1964. It was the Engineer of the company P. W. 1 who lodged the written complaint on that date namely, 25‑1‑1964, and that was treated as the F. I. R. After investigation by the police charge sheet was submitted against the accused persons on 27‑5‑1964, and after preliminary enquiry by a competent Magistrate, all the accused persons were to the Court of‑ the Sessions for trial.
The defence of the accused persons was that they were not guilty and that they did not participate in the riot and that they were falsely implicated in collusion with witnesses who were in the clutches of the authorities of the Mill. It was also the case of the accused persons that there are rival unions and on account of rivalry among the Unions the company patronised some Unions and in collusion with them the accused persons were falsely implicated by the P. Ws. 15, 4, 7, 6, 16 and 17 and some other workers of the rival Union.
Prosecution examined 25 witnesses ; the defence did not examine any witness.
The trial was held with the aid of three Assessors. On those facts, the learned Judge in full agreement with the Assessors convicted appellants Fazlul Huq Karl, Jalal, Ali Arshad, Milan alias Miran and Badiur Rahman under section 302/34 of the Penal Code arid sentenced them as aforesaid. In full agreement with the opinion of the Assessors lie also convicted each of the above five under section 148 of the, Penal Code without passing any separate sentence thereunder. In agreement with the opinion of the Assessors in the case of appellants Md. Ullah, Abdur Rahman Jalil Khan, Shah Alam, Abdur Rashid and Shafi, the learned Judge convicted all the six under section 148 of the Penal Code and sentenced them as aforesaid. In the case of appellant Afsar although the Assessors found him guilty under section 148 of the Penal Code, the learned Judge convicted him under section 147 of the Penal Code and sentenced him as aforesaid.
There is no challenge of the factums of rioting in the Mill area on the relevant date. The only challenge is about the complicity of the appellants before us. That being the position we can go straight to the evidence as to the complicity of the accused before us. Taking the general charge of rioting first the evidence on the different phases of the riots that raged in the Chaittaranjan Cotton Mills in Narayanganj including the evidence of preparation thereof may be summarised accused‑wise as under in terms of the learned Sessions Judge.
"I shall now place the P. Ws. who proves each fact com mencing from the meeting on the night of 13‑1‑64 ending with the Atpara Colony riot of 4‑30 p.m. of 14‑1‑64.
Under head 'A' I shall mention the P. Ws. who proves the meeting of 10 p.m. of 13‑1‑64.
Under head 'B' I shall mention the P. Ws. who proves the assembly of person at 5‑30 a.m. inside the Mill factory.
Under 'C' I shall mention the P. Ws. who described the riot that took place between 6‑30 a.m. to 7 a.m.
Under head 'D' I shall mention the P. Ws. who prove the riot that took place at about 8‑30 a.m. when P. W. 3 was attacked.
Under head 'E' I shall mention the P. Ws. who proved the murder of Sudhir as is also a part and parcel of this not.
Under head F' I shall mention the P. Ws. who prove the not inside the Atpara Colony at 4‑30 p.m.
(1) Fazlul Haque Kari: 'A' P. Ws. 4, 5, 6 and 15;'B'‑P. Ws. 1, 2, 5, 6, 7 and 21; C'‑P. Ws. 7 to 10 and 13 to 17; D'‑P. Ws. 5, 6, 14, and 16; 'E'‑P. Ws. 4, 5, 6 and 23; F'‑P. Ws. 5, 6, 7, 9, 13 and 21.
(2) Jalal: 'A'‑P. Ws. 6 and 15; 'B'‑P. Ws. 4, 6, 7 and 21 ; C'‑P. Ws. 8 to 10, 13 and 15 to 17; 'D'‑P. Ws. 5,.6 and 14; 'E'‑‑P. Ws. 4, 5, 6 and 23 ; F'‑P. Ws. 4, 5, 6, 7, 8, 13 and 16.
(3) Ali Arshad: 'A'‑P. W. 5 ; B'‑P. Ws. 1, 2, 6 and 7 C' P. Ws. 4, 8, 9 and 16 ; 'D'‑P. Ws. 3, 5, 6 and 16 ; V. P. Ws. 3, 5 and 6 ; 'F'‑P. Ws. 4, 5, 6, 9 and 13.
(4) Mohammadulla:‑'A'‑P. Ws. 4 and 5 ; B'‑P. W. 7 ; C'‑P. Ws. 4 and 8 ; 'D'‑P. W. 16 ; 'E'‑P. W. Nil ; F'‑P. Ws. 4, 5 and 7.
(5) Milan alias Miran: 'A'‑P. Ws. 4, 5, 6 and 15 ; 'B' P. Ws. 1, 2, 4, 5, 6, 7 and 21; C'‑P. Ws. 7, 8, 9, 10, 13 14, 15 and 16; 'D'‑P. Ws. 3, 6 and 16; E'‑P. Ws. 3, 5 and 6; F'‑P. Ws. 9, 13 and 21.
(6) Badiur Rahman: 'A'‑P. Ws. 4, 5 and 6;'B'‑P. Ws. 6, 7 and 21; C'‑P. Ws. 8 and 13 ; 'D'‑P. Ws. 3, 5, 6, 14 and 16 w 'E'‑P. Ws. 5, 6 and 3 ; 'F'‑P. Ws. 4, S, 8, 13 and 16,
(7) Afsar:‑'A'‑P. Ws. 4, 5, 6 and 15 ; B'‑P. Ws. 4, 5 and 6 ; 'C'‑P. Ws. 4, 8, 13, 15 and 16 ; D'‑P. W. 6 ; 'E' P. Ws. 4 and 6 (prove order by Afsar to remove the dead body sic); 'F‑P. W. Nil.
(8) Abdur Rahman:‑ A'‑P. Ws. 4 and 5 ; B'‑P. Ws: 2, 4, 5 and 7 ;'C'‑P. Ws. 8, 13 to 14 ; 'D'‑P. Ws. 5 and 14 ; B'‑P. W. Nil ; 'F'‑P. W. 7.
(9) Jalil Khan- A'‑P. W. 4 ; 'B'‑P. W. 7 ; C'‑P. Ws. 8, 13 and 16 ; 'D'‑P. W. 5 ; 'B'‑P. W. 4 (no charge under section 302, P. P. C.) ; 'F'‑P. Ws. 9 and 13.
(10) Shah Alam:‑‑‑'A'‑P. W. 15 ; 'B'‑P. W. Nil; V P. Ws. 8, 13 and 15 ; 'D'‑P. W. Nil ; 'E'‑.P. W. Nil ; F' P. W. Nil.
(11) Abdur Rashid: 'A'‑P. Ws. 4 and 5 ; 'B'‑P. Ws. 4 and 5 ; 'C'‑P. W. 16 ; 'D'‑P. Ws. 15 and 16 ; E'‑P. W. 5 ; 'F'‑P. W. 5.
(12) Shufi: 'A'‑P. Ws: 4 and 5 ; B'‑P. W. Nil ; 'C' P. Ws. 4, 8 and 15 ; 'D'‑P. W. Nil; 'E'‑P. W. Nil ; IF' P. W. Nil.
I had indicated the P. Ws. after considering the omission of names with reference to statement before I.O. and in the committing Court and wherever those contradictions of names appeared their evidence on that point against the accused was left out of consideration. The P. Ws, noted above against each of the accused persons are the un-contradicted evidence.
Out of these items I must repeat that the items 'C' to 'E' are the four riots starting from about 6‑30 or 7‑a.m. and ending at about 5 p.m.
Now the question is how far these witnesses can be relied upon to substantiate the charge of rioting against these accused persons".
The above is the reproduction of the useful and scientific chart as prepared by the learned Additional Sessions Judge and as embodied by him in his judgment which we have found to be sub stantially correct and accurate. The defence has not challenged the surface value thereof.
The whole matter has been divided into five sub‑divisions one of Preparation ; then the first phase then the second phase then the third phase then at the fourth phase of the riot. As to the preparation P. W. 4 Naib Ali, Electric Fitter of Chittaranjan Cotton Mills for over two decades stated that on 13‑1-1964 after 10 p.m. there was a meeting in front of the main gate of their factory attended by Afsar, Milan, Abdur Rahman, Fazlul Haque Kari, Md. Ullah, Abdul Rashid, Jalil, Shafi, Badiur Rahman and the outsider Mannan and others. After the meeting they were telling that an opportunity had come this time and in this opportunity they would teach a good lesson to the Maliks and also to the Hindus. P. W. 5 Abdul Kshem also spoke in the same vein mentioning the names of the participants of the meeting although be has not mentioned the name of Shafi and outsider Mannan. He has stated that after the meeting in front of the Mill factory the accused persons went inside the Union office and asked them to go away as they had secret meeting.
P. W. 6 Anwar Ali also deposed to the effect that on 13‑1‑1964 at about 10 p.m., there was a meeting in front of the factory main gate attended by the accused persons and others. This witness also did not mention the name of Shafi and the outsider Mannan. In this meeting the accused asked all to be united and that those persons and others went to the Union office and held a secret meeting. P. W. 15 Kalachand a worker of the Mill also deposed that on 13‑1‑64 at 10 a.m., there was a meeting at their Mill gate attended by 300 to 400 people including the accused, and that in that meeting Afsar said that Hindus would be taught a lesson and then there was a row then the accused went to the Union office and when the witness attempted to go he was obstructed. There is no reason to disbelieve the evidence of these witnesses with regard to the meeting at the Mill gate and the secret meeting that took place on the night of the 13th. It is true that some of the witnesses had said that they were not allowed to go to the Union office to hear what transpired in the secret meeting but the fact remains that by all evidence the accused met at the secret meeting. Together with the evidence of what they did in the morning, this secret meeting on the night before may reasonably be taken as a sort of preparation for the coming event next morning.
All the five appellants of the first group as convicted under sections 302/34 and 145. Pakistan Penal Code participated in the preparation meeting, In their statements under section 342, Criminal Procedure Code none of these five have denied the preparation meeting on the night of 13th specifically although they have spoken generally about their being falsely implicated by certain witnesses by reason of union rivalries.
As to the first phase of the riot at about 5‑30 a.m. we have the evidence of P. Ws. 1, 2, 5, 6, 7 and 21 P. W. 1 M. N. Chakrabarty has stated as under :‑
"On 14‑1‑64, at about 5‑30 a.m. Abdul Mannan, Fazlul Huq Kari, and some others came to me at my residence and told that there is apprehension of riot and asked me to close down the mill and send the Hindu workers outside the factory premises. This Abdul Mannan was our ex‑worker about 3 years prior to occurrence and he is a man of Narayanganj. Seeing him I surprised as to how he could come into the mill. No outsider can enter without gate pass which is issued by me."
P. W. 2 Samar DAs Gupta stated as follows:‑
"At 5‑30 a.m. of that day I met Mannan inside the factory premises. He told me to separate the Hindus as communal disturbance was going on outside. Then T tried to contact my administrative officer on phone but failed. Then I went near canteen and saw assembly of some men near the main gate. I asked the guard to close the main gate.
While I was returning from Canteen towards office, I was surrounded by Fazlul Huq Kari, Abdur Rahman, Arshad, Miron (id) and Abdur Rouf and others. Abdur Rouf had iron rod. Others had split up fire wood. They asked me to surrender Shanti otherwise there will be trouble. I told them that I do not know Shanti and seeing them armed I asked them to search him out and so saying I went to office. Then I sent a worker named Meser Ali to search out Administrative Officer."
P. W. 5 Abul Kashem stated as follows :‑
Then at 5 a.m. I went to the mill and saw Afsar, Milon, Abdur Rahman, Fazlul Huq Kari, Abdur Rashid (id) and Mannan inside the factory compound. Afsar asked the Hindus and Muslim to separate. Then they went out and I also went to my quarter as mill did not start on account of disturbance round about."
P. W. 6 Anwar Ali stated as follows :‑‑
"In the following morning at about 5‑30 to 5‑45 I went to factory on duty. When I went there I found Ali Arshed, Fazlul Huq Kari, Jalal, Milon, Badiur Rahman alias Bodu, Afsar, Mannan inside the factory compound. They asked the Hindus and Muslims to separate themselves. Then I went to my quarter at about 6‑30 to 6‑45 a.m."
P. W. 21 Alam stated as follows :‑‑‑
"On 14‑1‑64 at about 5 a.m. I saw a gathering inside the mill factory in front of main gate. They were shouting calling upon Muslims, Hindus to separate. They were with lathis and rods. Out of them I recognised Milon, Fazlul Huq Kari, Jalil, Badiur Rahman (id) and Mannan".
Mr. Yasin appearing for the appellants has contended that all the witnesses are interested and as such have falsely implicated these accused persons and it is the result of Union rivalries.
We will consider this objection later. With regard to the evidence of P. W. 4 Naib Ali his evidence has been very seriously criticised by reason of the fact that he happens to be an accused in a dacoity case which was pending against him and by reason of the fact that he told lie in Court when he stated in cross -examination that it was not a fact that on 14‑12‑1963, he was pro‑ s posed by Kalachaud Miah for Cashiership in his presence though Kalachand Miah admitted the same. We do not place much stress on the evidence of P. W. 4 Naib Ali.
The next phase of the riot is about 7 a.m. and on that point we have deposition of P. Ws. 7 to 10 and 13 to 17. P. W. 7 Amjad Ali has stated as follows:
"Then I came to the South‑West of the mill at about 7/7‑30 a.m. When I saw a mob of about 400/500 people including Milon, Abdur Rahman, Badiur Rahman, Ali Arshad, Jalal (id) Fazlul Huq Kari (id) arid others. They were armed with lathi dagger, rod."
P. W. 8 Mia Chand stated as follows :‑
"At about 6 or 6‑30 a.m. I heard serious row on the South. West corner of the mill. I went there and found 200/300 people being armed with dagger, iron rod and lathi, out of those persons I recognised Afsar, Jalal, Shah Alam, Shah, Abdul Rahman, Milon, Fazlul Huq Kari, Arshad Ali, Jalil, Md. Ullah, Badiur Rahman (id) and Abdul Rouf."
P. W. 9 Daulat Ahmed stated as follows:‑‑‑
"On 14‑1‑64 at about 6 a.m. I saw a mob of about 200/300 persons being armed with lathi, rod, etc. gathered at the South‑West corner of the mill but outside in order to attack the mill. At that time Saijuddin Matbar, Azizullah Bhuiyan and Abdul Matin Patwari asked them to go and they moved back to railway line. Out of this mob I recognised Ali Arshad, Milon, Fazlul Huq Kari, Jalal (id) and Abdur Rouf."
P. W. 10 Akhtaruzzaman has stated as follows:
On 14‑1‑64 at about 6 a.m., on hearing row I came out of my quarter and saw 200/300 people being armed with dagger, rod, lathi gathered at the South‑Western corner of the mill.
They were giving slogans to surrender of the Hindus. Then myself and Azizullah Bhuiyan and Shajuddin asked them to go as Hindus had gone away. Then they moved a little and looted the shop of Gokul peon and Jogesh. Out of this mob I recognised Milon, Jalal, Fazlul Huq Kari (id) and Abdur Rouf."
P. W. 13 Hafizuddin stated as follows :‑‑‑‑
"At about 6‑30 a.m. a mob of 200/300 persons being armed with lathi, rod and dagger and some wearing black badges were proceeding towards out mill. Myself, Shaijuddin, Azizullah and others met them at the South‑Western corner of the mill and asked them not to make golmal as it is Pakistani mill. Then they moved back. Out of this mob I recognised Afsar Mea, Milon, Abdur Rahman, Badiur Rahman alias Badu, Fazlul Huq Kari, Shah Alam, Jalal, Shafi, Joli Mea.(id)."
P. W. 14 Fakir Muhammad stated as follows:‑‑
"At 6 a.m. or 6‑15 a.m. I heard row at the main gate of our mill and I went there to see what is happening there and there I saw a mob of about 200/360 being armed with lathi, split fuel, etc., and they were running to fro (sic) and Hindus were also running and all the accused persons (identified in dock) were in the mob and I know the name of Milon, Fazlul Huq Kari, Abdur Rahman and others I know by face as they are men of my mill."
P. W. 15 Kalachand has stated as follows:‑
"Then on 14‑1‑64 at about 7/8 a.m. I came to mill and when I was about to enter the mill I saw Shaijuddin Matbar with some others were coming out of the mill by Atpara gate.
From Labour colony side Afsar Mia, Jalal, Shafi, Miron alias Milon, Shah Alam, Md. Ullah, Fazlul Huq Kari and others in all 150/200 people came on the Western side of Railway line and attempted to enter the Mill. They were armed with lathi and iron rod."
P. W. 16 Saijuddin Matbar stated as follows:‑
"Then at about 7 or 7‑30 a.m. about 200/300 people came on the Southern side of the mill near Atpara gate over Adamjee road and they were armed with dagger, lathi, iron rod. They had black badges. They attempted to enter into the mill but I opposed them. There they told me to surrender the Hindus. I told that it is Pakistani Mill and there is no Hindu inside and all Hindus have left. Out of these rioters I recognised Afsar Milon alias Miron, Fazlul Huq Kari, Jalal, Ali Arshad, Badiur Rahman, Jalil Khan (id) and Abdur Rashid (id)."
P. W. 17 Azizullah Bhuiyan stated as follows:‑‑
"Then at about 7‑30 a.m., I noticed a mob assembled at the Southern‑Western corner of our mill and they came to attack the mill. They were armed with dagger, lathi, I came there. Saijuddin Matbar also came there. Myself and Saijuddin Matbar requested them, to go away and then slowly the mob dispersed. Out of this mob I recognised Badiur Rahman, Fazlul Huq Kari and Miron (id). Then I went inside the mill."
'No serious fault could be found with the evidence on this phase except that there are certain minor discrepancies in the evidence of the witnesses as to the exact moment of time and also the personnel. The third phase of the riot, that is at about 8‑30 a.m. has been spoken to by P. Ws. 5, 6, 14 and 16 P. W. Abdul Kashem stated as follows:
"Then at about 8 or 8‑30 a.m. a group of people numbering about 200/300 were coming towards our mill and they came in front of our Administrator who was outside. They were threatening our Administrator to surrender the Hindus otherwise the mill could be set on fire. Out of these persons I recognised Jalal, Fazlul Huq Kari, Abdur Rahman, Jalil Khan Rashid, Arshad, Badiur Rahman (id) and others. Jalal had dagger, and others had lathi and iron rod. Then the Administrator went inside the mill factory. I went to my quarter."
P. W. 6 Anwar Ali stated as follows:‑
"Then at about 8 a.m., on hearing the arrival of our Administrator I was going towards the factory when I saw many persons surrounded our Administrator outside the main gate at a distance of about 40 cubits West of the main gate. Out of those persons I recognised Badiur Rahman, Arshad, Jalal, Milon, Fazlul Huq Kari and Afsar. They told the Adminis trator to surrender the Hindus of the Mill. "Turn out Hindus of your Mill.
P. W. 14 Fakir Muhammad:‑
"Administrator came at 8 a.m. and I acted as his body guard. I went with him at the North‑West corner by the Railway line and there I found 200/300 persons being armed with knife, Dao, Lathi, Split fuel, etc. They demanded of P. W. 3 to surrender the Hindus otherwise mill will be burnt. When they attempted to attack P. W. 3 we took him inside the mill. Among this mob I recognized Milon, Abdur Rahman, Fazlul Huq and the name of others I do not recollect.
P. W. 16 Saijuddin Matbar stated as follows: ‑
"Then at about 8 or 8‑30 a.m. I saw P. W. 3 going on the Northern side of the mill and we also followed him. Fakir Muhammad was body guard of P. W. 3.
Then 20/25 persons came from North and surrounded P. W. 3. They told him to surrender Hindus as Muslims had been murdered in the Dhakeswari Mill.
P. W. 3 pleaded inability to meet their demand. Out of these persons I recognised Fazlul Huq Kari, Jalal, Badiur Rahman, Md. Ullah. Ali Arshad, Abdul Rashid Sardar (id) and Milon (id). Then one of the person from the mob attacked P. W. 3 with a dagger and we intervened and then took P. W. 3 inside the Mill."
Here again there is no serious attack on the evidence except minor discrepancies and general allegations of enmity over Union affairs.
So far as the charge of murder against appellants Fazlul Huq Kari, Jalal, Ali Arshad, Milan alias Miran and Badiur Rahman goes we shall deal with it separately later on. P. Ws. 5, 6, 7, 9, 13 and 21 have deposed about the riot that took place inside the Atpara Colony at 4‑30 p.m. P. W. 5 stated as follows: ‑
"Then at about 4‑30 or 5 p.m. I heard slogan of about 2,000/3,000 and I came out and came near the Atpara Colony when I saw Badiur Rahman (id) fixing ladder on the wall of Atpara Colony and then Jalal, Fazlul Huq Karl, Arshad, Rashid, Md. Ullah (id) climbed over the ladder and got inside the Atpara Colony."
P. W. 6 stated as follows: ‑‑
"Then at about 4 p.m. seeing advance of 400/500 people I went out and stood on the Western bank of the tank over the Railway line. They were armed with rod, laths and dagger. These persons came to Atpara Colony. Then Badiur Rahman (id) fixed ladder on the wall of Atpara Colony and then Arshad, Jalal, Badiur Rahman, Fazlul Huq Kari (id) got upon the ladder and scaled the wall and entered into the colony.
P W. 7 Amjad Ali stated as follows ‑‑
"Then at about 4/4‑30 p.m. man people raided the Atpara Colony being armed with lathi, rod and dagger, etc. out of them Badiur Rahman fixed a ladder and Jalal, Ali Arshad, Md. Ullah (id) crossed the wall with the help of ladder and went inside the colony."
P. W. 9 stated as follows:‑
"Then at about 4/4‑30 p.m. a mob of about 200/300 persons being armed with lathi and rod entered Atpara Colony by scaling the wall and out of them I recognised Ali Arshad, Milon, Jalil Khan, Fazlul Huq Kari (id) and they 'were armed with lathi, and, rod. I was in the warter."
P. W. 13 stated as follows: ‑
"Then about 4/4‑30 p.m. of 14.1‑64 about 3,000/4,000 people being armed with lathi, dagger and rod raided the Atpara Colony. Then Badiur Rahman (id) fixed a ladder on the wall and then Jalal with dagger and Milon, Arshad, Shah Alam, Shag rid) and others scaled the wall and got inside the colony.
P. W. 21 stated as follows:
"Then at about 4 p.m. or 4‑30 a mob of about 200/300 people raided Atpara colony and out of them. I recognised Badiur Rahman, Milon, Jalal, Fazlul Huq Kari (id). They were armed with rod and lathi.
Here also there are only general comments of discrepancy. But we find no reason to disbelieve these witnesses.
Mr. Yasin has made the grievance that the witnesses are all officials and staff and workers of the Mill and no outsider witnesses has been brought forward. Actually the Management of the Mill at the time was with the Government and the Adminis trative Officer was the head. There could be no reason for the officers and the other staff to implicate some of their workers simply because there is some rivalry among them in formation of Unions. There is nothing to show any special enmity between the accused persons and the officials and the staff of the Mill. In the situation created by the riots it was not possible to expect outsider witnesses to be present at such critical moments.
It is that P. W. 6 has stated in cross‑examination that Ansar patrolled the area. Ansars were on duty at the time of occurrence of 11 a.m. and that he did not "inform Ansar as they have also seen it." It has not been stated as to which Ansar was examined it might be said that he was siding with the prosecution.
The fact remains that it is a very difficult job to get independent at such critical times.
Mr. Yasin also contended that the evidence of these witnesses has to be taken with a grain of salt having regard to the fact that there were great rivalry over Union affairs between the witnesses and the accused.
There is no doubt that there is some evidence on this point but it appears of the witnesses and accused, only accused Abdur Rahman, Kalachan P, W. 15 and accused Afsar and P. W. 4 Naib Ali are office bearers of the Union and the others are merely workers without any definite Union grounding. We, therefore, on the basis of this evidence agree with the learned Judge on the point of the rioting charge. It appears tea us that the above evidence has borne out the different phases of the riot including the preparation thereof and also the complicit of the respective appellants in the riot. So far as the complicity of appellant Fazlul Huq Kari in the riot goes there is the evidence of practically all the witnesses in the case seeing him involved at one stage or other of the riots. He was seen at the preparat ion; he was seen in the attack and he was everywhere. As against appellant Jalal there is the evidence which also more or less of the same level except that about his presence in the preparation only two witnesses have spoken to that effect and not four as in the case of Fazlul Huq Kari. So far as appellant Ali Arshad goes he was seen only by one witness for preparation although in the actual rioting the evidence against him is more of less the same as in the case of the accused already treated. In the case of appellant Md. Ullah, it seems that he was seen only by one person P. W. 7 Amjad Ali in the early morning at 5‑30 a.m. and by only two men at the riot at 6‑30 a.m. and again by one only at 8‑30 a. m. and by three at the 4.30 P.M. occurrence. As far as Milan goes the evidence on all heads are in the same large scale as in the case of Fazlul Huq Kari. Same is the position with regard to appellant Badiur Rahman. Coming to appellant Afsar, his name has not been mentioned so far as the 4‑30 p.m. Atpara Colony goes and the riot at 8‑30 a.m., otherwise the evidence is more or less the same against him. . As to appellant Abdur Rahman the evidence about his being involved in the Atpara Colony is only of one witness. In other cases two and more. In the case of appellant Jalil khan about the evidence of preparation the evidence is only of one witness; the evidence as to the participation in the 5‑30 p.m. and 8‑30 a.m. assemblage is only one. In other cases only two witnesses. As to appellant Shah Alam his case seems to be rather outstanding inasmuch as there is great paucity of evidence in his case; it is only with regard to 6‑30 a.m. occurrence that there are three witnesses against him in other cases nil although of course one witness P. W. 15 Kalachand has spoken about his presence in the preparation in the night before. So far as appellant Abdur Rashid goes, the evidence against him with regard to the 6‑30 a.m. and 4‑30 p.m. is by only one; in other phases too. So far as appellant Shafi goes, two witnesses have spoken about his being present in the preparation over night and three at 6‑30 a.m., in other cases nil.
The degree of evidence against each accused varies. There is also some variation as to the instrument carried by the accused and we will have to closely distinguish the cases. Before we take to a closer examination of this aspect it is necessary to consider one contention of the learned Advocate for the appellants, namely, that in this case there has been great delay in filing of the complaint which according, to the learned Advocate for the appellants itself shows that the case has been built up against the appellants as a result of concoction and fabrication. It has also been urged that in the F. I. R. the names of the persons from whom the complainant heard has not been stated.
It is true that there has been a lot of delay in the filling of the complaint by reason of the fact that the occurrence took place on the 14th whereas the complaint was not lodged till the 25th of January. It is also true that in the complaint the persons from whom the complainant heard has not been stated. What has been stated there is "it has been reported." There is no name of any witness. It also seems to be true that the names of several accused has been omitted from the F. I. R. The F. I. R. seems to us too short for such a big affair and omits important details.
But the very fact that the Ejahar was lodged at the instance of O/C of Fotullah indicated that the defence story that the management wanted to grab the opportunity of riot for implicating these men who were trouble‑shooters in their organisation, has no legs to stand upon. P. W. 1 stated that the Administrative Officer P. W. 3 did not ask him to lodge the Ejahar but it was the O/C of Fotullah Police Station who asked him to do so. So far as the delay goes, there is the evidence of P. Ws. 1 and 3 which sufficiently accounts for the delay. P. W. 1 stated in cross‑examination that the Mill was not working before 25‑1‑1964. There was curfew for 7/8 days and the Mill was also closed and the Mill opened on 25‑1‑1964. P. W. 3 has spoken in the same vein. He stated as follows: ‑
"There was curfew for riot less than 7/8 days I did not lodge any Ejahar as I presumed that Magistrate and Police being there they would take up themselves and further I was busy With my both Dacca office and Narayanganj office."
So the delay and the other circumstances of the F. I. R. cannot raise any point in favour of the defence.
So far as the riot at its different stages go, the evidence as above shows that the appellants are all participants in one or the other phase of it. According to some evidence at least five appellants had lathis and rods in their bands and also dagger which leave some doubt as to the weapon actually carried by them. But so far as appellant Jalal goes the uniform evidence is that he had a dagger. It is to be noted that in the F. I. R. four names have been omitted, namely, those of appellants Afsar, Abdur Rahman, Shah Alam and shaft. Their names have been so omitted in Court also by the informant P. W. 1. P. W. 1's evidence in Court shows that he had contract with several witnesses before lodging the F. I. R. P. W. 1 has stated as follows: ‑
"I learnt of the occurrence from Nayab Ali, Amjad Hussain, Abdul Kashem, Shamser, Zunabali, Azizullah, Daulat, Fakir, Md. Meajan and others before Ejahar. They reported their recognitions to me".
It is strange how even after that the names of the four appellants aforesaid were not mentioned in the F. I. R. of course, some of these men have spoken about the complicity of the above appellants in Court while the great majority of those with whom contact was made before the lodging of the F, I. R., do not mention names.
In those circumstances we uphold the conviction of all the appellants excepting appellants Afsar, Abdur Rahman, Shah Alam and Shafi on the charge of rioting.
The question now is that of the guilt of the appellants Fazlul Huq Kari, Jalal, Ali Arshad, Milan alias Miran and Badiur Rahman with respect to the additional charge of murder against each of them.
On this point the evidence of P. W. 4 Naib Ali is to the following effect: ‑
Then at about 11 a.m. I heard raw and came out hurriedly and went to the Southern bank of the mill tank and saw Tarak lying on Western bank and Sudhir was running away eastward by the Southern bank when Fazlul F1uq Kari (id) struck Sudhir on leg with lathi and felled him down and at once Jalal (id) stabbed Sudhir with dagger and Milon (id) dealt lathi blow on Sudhir and Ali Arshad, Muhammad Ullah and Badiur Rahman (id) dealt lathi blows on Sudhir. There were also other persons but I did not recognize them. Then out of fear 1 left to my house.". . . . . . . . .
I cannot say whether on account of assault Sudhir died or not."
P. "W.5 stated as follows:‑
"At that time I saw a man being beaten by several persons on the Western bank of the tank to the North of Ansar club, seeing this golmal Sudhir a peon of ours in order to go to the Mill, ran towards East by the Southern bank of the tank, when Fazlul Huq Kari dealt lathi blow on his leg and felled him down and at once Jalal stabbed Sudhir can chest with a big dagger of 1 to 11 cubit and then Milan, Arshad, Badiur Rahman, Abdul Rashid, Abdul Rahman, Muhammad Ullah (id) dealt lathi blows on Sudbir Afsar was present there Sudhir died on the spot. I saw his dead body.
Then on the order of Afsar to throw away the dead body, Milon, Fazlul Huq Kari, Muhammad Ullah and Arshad (id) dragged the dead body of Sudhir and threw it on the ditch to the West of the tank. The ditch was dry.
While the dead body of Sudhir was being dragged away, I went to my quarter.
I saw the assault on Sudhir from a distance of 10/15 cubits, The dead body of Sudhir was dragged in front of me.
The ditch was dry and it is 2 or 2 cubits deep from the tank bank. 1'lic dead body was thrown to the South of Ansar Club and it is, to the North of the place where I stood. On the following morning I met P. Ws. 1 and 3 and reported the entire occurrence and also told them that dead body had been thrown in the ditch.
On the day of occurrence I did not show the dead body to anybody."
P. W. 6 Anwar Ali has stated as follows: ‑
"At this time Sudhir started running Eastward over the Southern bank, when Fazlul Huq Kari (id) failed him down with rod and at once Jalal (id) gave dagger blow on the chest of Sudhir and then Milon, Ali Arshad, Badiur Rahman (id) assaulted Sudhir with rod and lathi. Afsar was there. Sudhir died on the spot."
P. W. 23 Shamsul Huq stated as follows :
"On 14‑1‑64 Tuesday at about 11 a.m. while I was near our Ansar Club, I saw our office peon Sudhir were going running by the Southern bank of our tank towards East from West and at that time Fazlul Huq Kari (id) felled him down by lathi blow and Jalal (id) stabbed Sudhir and then Ali Arshed, Md. Ullah, and others beat Sudhir with lathi.
I do not remember if I mentioned the name of Milon also in committing Court put in under section 288, Cr. P. C. Sudhir died on the spot. I then left out of fear."
The above evidence no doubt shows the complicity of all the five appellants in the dastardly attack but then the corpse has not been found and produced before the medical officer for post mortem examination as to the nature of death and injury suffered. Although the body lay in a ditch only 2 cubits which was dry at that time prosecution has not even attempted to give, any explanation for the missing of the body. There is also a suggestion though denied that Sudhir has gone to Calcutta.
In those circumstances we find it difficult to accept the position that the murder has been proved to the hilt by the evidence of these witnesses.
Now reverting to the charge of rioting the evidence as to the weapon carried by eight of the appellants, namely, Fazlul Huq Kari, Jalal, Ali Arshad, Muhammad Ullah, Milan alias Miran, Badiur Rahman, Jalil Khan and Abdul Rashid, other than Appellants Afsar, Abdur Rahman, Shafi and Shah Alam according to some witnesses, is that they carried rod and lathi and according to others they carried lathi only. Although in the case of Jalal as stated before the uniform evidence is that he carried a dagger. Lathi is not usually regarded as deadly weapon. In those circum stances we feel that except in the case of Jalal, it is safer to convict the other appellants under section 147 of the Penal Code and they are held so guilty under this section. In the case of Jalal, however, the evidence being uniform as to his carrying a dagger he is held guilty under section 148 of the Penal Code. We find Fazlul Huq Kari; Jalal, Ali Arshad, Milan alias Miran and Badiur Rahman not guilty under section 302/34 of the Penal Code for the reasons stated already and they are acquitted of this charge.
The result, therefore; is that appellants Fazlul Huq Kari, Ali Arshad, Md. Ullah, Milan alias Miran, Badiur Rahman, Jalil Khan and Abdur Rashid are found guilty under section 147 of the Penal Code and they are now sentenced to six months rigorous imprisonment each thereunder.
Appellant Jalal is found guilty under section 148 of the Penal Code and he is sentenced now to rigorous imprisonment for one year thereunder.
Appellants Afsar, Abdur Rahman, Shah Alain and Shah are found not guilty and they are acquitted of the charge levelled against them and they be discharged from their bail bonds.
Appellants Md. Ullah, Jalil Khan and Abdur Rashid who are on bail will now surrender to their bail and serve out the sentence of rigorous imprisonment of six months now imposed upon them under section 147 of the Penal Code.
Appellants Fazlul Huq Kari, Jalal, Ali Arshad, Milan alias Miran and Badiur Rahman not having been sentenced under section 148 of the Penal Code and they having been acquitted under section 302/34, Penal Code and as they have already suffered sentence for a term more than now imposed under sections 147 and 148, P. P. C. they shall be forthwith set at liberty if not wanted in any other connection. The appeal is disposed of in those terms.
‑--I agree.
Appeal partly accepted.
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