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Criminal Appeal No. 203 of 1952, decided on 4th August 1952.

, S. 162‑Copies of statements recorded under S. 161 not supplied to accused--- Effect‑Evidence not thereby rendered inadmissible but proper presumption against prosecution may be raised under S. 114, Evidence Act (1 of 1872).

‑Not directed as to effect of failure to supply to accused copies of statements under Ss. 161, 162, Cr. P. C. Misdirection.

The Assistant Sessions judge failed to give the jury any direction at all on the effect of the failure of prosecution to supply copies of statements under sections 161, 162, Cr. P. C.

Held, that the applicants had been gravely prejudiced by the manner in which they had been tried.

A.W. Choudhury for Appellants.

Salahuddin Ahmed, Deputy Legal Remembrancer, for the Crown.

---The three appellants, Abdul Ghani Musalli, Yusuf alias Sk. Yusuf Ali and Gofur alias Abdul Gahur Bepari, were convicted under section 395 of the Pakistan Penal Code and sentenced to rigorous imprisonment for four years and six months each. They were tried by Mr. Mahmood Ali Khan, Assistant Sessions Judge of Dacca, on a charge under section 395 of the Code for committing dacoity in the house of Hashemali of Gaodia on the 7th September 1950, and in the house of Manirul Huq at Shundishar on the 8th of September 1950. They were tried with the aid of a jury who unanimously found them guilty under section 395 for committing dacoity in the house of Hashemali Bepari at Gaodia but not guilty in respect of the dacoity in the house of Manirul Haq at Shundishar.

The appellants were represented before us by Mr. A. Wadud Chowdhury while Mr. Salahuddin Ahmed appeared for the Crown.

We note from the order‑sheet that on the 10th of March 1952, the first date on which the hearing of the case began in the Court of the Assistant Sessions judge, the lawyer defending Abdul Ghani Musalli filed a petition asking for the cases to be tried separately. The learned Assistant Sessions judge recorded that he had considered the petition but found that there was no misjoinder of charges as the accused persons were said to have committed both the offences en two succes sive dates. We think that the learned Assistant Sessions judge would have done well to accede to the request of the defense and to have tried the two cases separately. As, however, the Jury found the accused not guilty in respect of the dacoity com mitted on the 8th of September 1950, in the house of Manirul Huq, we propose to take no further action in regard to that dacoity.

The first point taken in support of the appeal touches the failure of the appellants to obtain copies of the statements made by the prosecution witness during investigation of the case. There appears on the record a petition filed on behalf of Abdul Ghani Musalli on the 10th of March 1952, asking the Court to direct the Public Prosecutor to supply copies of statements of certain witnesses to the Investigating Police Officer. The petition bore an endorsement by the learned Assistant Sessions judge directing the Public Prosecutor to supply the statements required by the petitioner's Pleader. Then follows a petition 'filed on the 12th of March 1952 in which the defence complained that no effect had been given to the order of the learned Assistant Sessions judge and the learned Assistant Public Prosecutor had not supplied the statements to the defence saying that he had not yet gone through those statements and that the statements had been recorded in a boiled form. In respect of this petition, the learned Assistant Sessions judge recorded the following order in the order‑sheet of that date. The accused file a petition to direct the Public Prosecutor to supply copies of the state ments of certain P. Ws. recorded by the I. O. Heard lawyers of both sides. An order was passed on the first day of trial asking the P. P, to supply the accused with the copies of the statements of some P. Ws. The P. P. says that there is no separate statement of any P. W. except P. W. 1. The accused's Pleader states to have got copy of the statement of P. W. 1. As the I. O. recorded the statements of the other P. Ws. in a boiled form, I don't see how the accused can be given copy of the statements of the P. Ws. named in the petition. It was very unfair of the I. O. not to record the statements separately. The accused have no doubt been prejudiced. The failure of the I. O. to comply with the pro visions of law will have its legal consequences." The learned Advocate appearing for the appellants complains with justice that although the learned Assistant Sessions Judge stated that the failure of the Investigating Officer to comply with the pro visions of law would have its legal consequences, he did nothing further and did not give the Jury any direction at all in the matter. In this case a reference has been made to the case of Lakshman Chandra Ghose and others v. The King (52 C W N 401). The head note of this case states

A failure to supply copies of statements of witnesses recorded under section 161 of the Criminal Procedure Code, 1898, either because the statements were lost, destroyed or were recorded in boiled form in contravention of subsection (3) of that section does not make the evidence of those witnesses inadmissible. In such circumstances, if the trial is by a jury, the judge should give proper direction to the jury as regards the weight to be given to such evidence which the accused had no opportunity to test by cross‑examination in some particulars.

If such statements were deliberately destroyed or were recorded in a boiled form in contravention of law, that would be tantamount to withholding of evidence by the prosecution and a presumption may be raised under section 144 of the Evidence Act, 1872, that the evidence if produced would have gone against the prosecution; if the trial is by jury, the Judge must direct the jury fully and properly on the bearing of the omission, on the credibility ,c of the evidence and on their right to raise an adverse presumption if they think fit to do so.

A failure to direct the jury properly as above is a misdirection which would entitle the appellate. Court to interfere, if the verdict is erroneous or there has been a failure of justice.

"In deciding whether there has been in fact a failure of justice on account of the misdirection, the Court is entitled to go into facts and to determine for itself whether there has been a failure of justice in the sense of a conviction of an innocent man"

The learned Advocate also draws our attention to a decision of this Bench in the case of Sarafat‑Accused v. The Crown (P C R 102). It was there held that the accused has the right to get copies of the statements of witnesses recorded in a boiled form by Investigating Officers under section 161 of the Code of Criminal Procedure and to examine them for himself to find out whether there are contradictions. It was not impos sible that the defence might be able to abstract from the condensed or boiled statements portions which could be attributed to one or other of the witnesses whom it intends to contradict by such statements. This decision was in agreement with the decision of Harries C. J. and Bachawat J. in the case of Bejoy Chand Patra v. The State (54 C W N 447).

On behalf of the Crown Mr. Salahuddin claims that so far as the prosecution witness No.1 Mukles Khalifa is concerned, the defence admittedly had copies of his statement to the Police and so far as Hashemali Bepari is concerned, they had the First Information Report. That may be true but that still left the defence without the copies of the statements of witnesses for which they petitioned on the 10th of March 1952, and on the 12th March 1952, and which were withheld from them because they were recorded in a "boiled form", the decision in the Pakistan Criminal Reporter at page 102 (supra) requires that even if the statements are recorded in a boiled form the defence are entitled to see those statements in order to discover whether they can possibly abstract therefrom some statements as being attributable to one or other of the prosecution witnesses for the purpose of contradicting him thereby. Not only did the learned Assistant Sessions judge in this case fail to allow the defence access to the statements in order to make this discovery for themselves but he also failed to give the jury any direction at all, as he should have done following the case of Lakshman Chandra Ghose and others v. The King (supra).

In these circumstances, it cannot but be held that the appellants have been gravely prejudiced by the manner in which they have been tried.

The appeal is accordingly allowed and the convictions and sentences set aside and we direct that the appellants be re‑tried on a charge under section 395 of the Penal Code for the dacoity committed in the house of Hashemali Bepari of Gaodia on the 7th of September 1950. The appellants will main in jail pending re‑trial.

‑I agree

A.H. Re‑trial ordered.

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