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Death Reference No. 3 of 1957 and Criminal Appeals Nos, 325 and 343 of 1957, decided on 6th January 1958.

Conducted in a manner not authorised by law‑Entire proceedings to be set aside irrespective of decision of conviction or acquittal or of any prejudice to anyone.

Where a trial is conducted in a manner not authorised by law and the rules of procedure relating to matters of fundamental character, the decision in such a trial. whether of conviction or acquittal, is of little consequence, and the entire proceeding must be set aside irrespective of any question of prejudice to anyone.

Qadar dad and other, v. Sultana Bib P L D 1956 F C 129 fol:

Conviction sought to be based mainly on retracted confession of accused --Duty of Court ire examining accused.

Where the conviction is sought to be based mainly on the confession of the accused, the attention of the accused must be drawn to such a confession and he must be given an opportunity to give his explanation with regard to the main aspects thereof. I t is not sufficient to have merely asked if he did or did not make a confession. It should be put to him as to whether he had or had not confessed in a particular manner where the Sessions Judge, in his examination of the accused tinder section 342 of the Criminal Procedure Code, asked only the following questions

"Q.‑You along with other accused persons, went to murder K as a result of which R, M and A were murdered. Have you got anything to say

A.‑Innocent.

Q.‑Did you make a confession before the Magistrate at Madaripur.

A.‑Yes. The police made me do so by holding ‑out temptation.

Q ‑Will you adduce evidence in defence

A. ‑‑No.

Held, that this was not a proper examination under section 342 of the Criminal Procedure Code.

Rahim Bakhsh v. Crown P L D 1952 F C I fol.

Evidence under section ‑Cannot be admitted unless incapacity of witness to appear in Court established.

Before evidence can be admitted under section 33 of the Evidence Act, it must be established that the witness is incapable of giving evidence and such incapacity must be proved and proved strictly.

The Sessions Judge admitted under section 33 of the Evidence Act, the evidence of a Magistrate, who held the test identification parade. The only ground upon which the admission of evidence had been made was that the Magistrate was indisposed. There was no finding recorded by the Sessions Judge to the effect that the Magistrate was in fact indisposed. The Sessions Judge relied on an unverified petition filed on behalf of the prosecution and a telegram said to have been sent by the District Magistrate but which in fact was not duly proved.

Held, that the admission of evidence under section 33 of the Evidence Act was clearly illegal.

Chainchal Singh v. The King‑Emperor 50 C W N 201 fol.

--- Sameness of transaction‑Criteria to determine.

The usual criteria to determine as to whether a particular offence or offences do or do not arise in the course of the same trans action is to see whether the two offences so sought to be jointly tried, are connected with each other, either with reference to the point of time or the place of occurrence or with reference to the continuity of the action of the persons accused in respect of such offences or the community of their purpose.

Must be preferred by High Court to early decisions of Judicial Committee.

In re Seraje Narayana Bhatta and others I L R 1949 Mad. (F B) 220 and Munwar Ahmad v. The State P L D 1956 S C (Pak.) 300 ref.

Brij Bhusan Singh v. The King‑Emperor 50 C W N (P C) .148 not followed. u

B. N. Choudhury for condemned accused.

A. Salam Khan with Daliluddin Ahmad for remaining Appellants.

The Deputy Legal Remembrancer for the State.

This Reference under section 374 of the Code of Criminal Procedure is in respect of one accused Abdur Rahim Sikdar who has been convicted under sections 449, 148 and 302/149 of the P. P. C. and sentenced to death on the charge under sections 302/149, no separate sentence having been imposed in respect of the other two charges. He has also preferred an appeal to this Court against the aforesaid con viction, which is Criminal Appeal No. 325 of 1957. Along with him, five other persons were also convicted under sections 302/149 of the P. P. C, and sentenced to transportation for life on the said count. Of these five persons, one, namely, Abdul Jalil Mir, was also convicted under sections 449 and 148 of the P. P. C. but no separate sentence was imposed upon him on these counts. Another one, namely, Abdul Aziz Khan, was also convicted under sections 449 and 147 of the P. P. C. and again no separate sentence was imposed upon him on the said counts.

The remaining three were also convicted under section 147 of the P. P.,C. and again no separate sentence was passed in respect thereof. These five accused persons have also preferred an appeal against their convictions and sentences and the same is Criminal Appeal No. 343 of 1957.

Both these appeals have been heard together with this Reference and will be disposed of by this judgment.

The prosecution case against these six convicted persons was that on the night of the 26th of Poush, 1362 B. S., corresponding to 12th of January 1956, a little after midnight, they had, together with 15 or 16 other persons, raided the house of one Khalilur Rahman, P. W. 1, being variously armed with a gun or guns, ramdaos, rulers and other dangerous weapons as also mavhals and torches and opened fire there, as a result of which Rahima Bibi, the wife of the said Khalilur Rahman, died and his daughter Momtaz, aged 21 years, received gun‑shot injuries, within his hut.

It is alleged that there was a long‑standing enmity between the said Khalilur Rahman and some of the accused persons over the purchase of the share of the cousin‑sister of the said Khalilur Rahman in certain lands, of which the said Khalilur Rahman ,had prevented the said accused persons from taking possession in pursuance of their purchase. Various criminal cases are also alleged to have been brought. against the said K.halilur Rahman by the said accused persons ; but the said Khalilur Rahman ultimately came out victorious in all the said Criminal case, and, indeed, in one he was awarded compensation of Rs. 75 on the ground that the case had been vexatiously instituted against him. The enmity was, according to the prosecution, so grave that Khalilur Rahman, even before the incident of the 26th of Poush, 1362 B. S., apprehended danger to his life and took precautions in that behalf. He actually built a strong room for himself in one corner of his south‑bhiti-tin‑shed.

According to the prosecution, on this night of the 26th of Poush, 1362 B. S., the said Khalilur Rahman .was sleeping in the north-western room of his hut; his father and his cousin, gone Monsur Ali, P: W. 3, slept in the north‑eastern room; his deceased wife and daughter Momtaz in the south‑western room and his mother and sister slept in the south room. After midnight, the said Khalilur Rahman was roused from sleep on hearing the report of a gun being fired. Out of fear, he climbed up the ceiling from inside the but ; but soon thereafter some of the accused persons broke open the western door and entered the room when reports of further gun shots were also heard. Samartaban Bibi, the mother of the said Khalilur Rahman, also woke up on hearing the first gun shot and lighted a kupi lamp but the father of the said Khalilur Rahman, out of fear, took shelter underneath a chowki. The assailants on entering the but asked Samartaban Bibi, P. W. 2, where her son Khalilur Rahman was. She replied that he had fled away. Khalilur Rahman from the ceiling recognised the appellants Abdul Jalil Mir, Abdul Aziz Khan, Abdur Rahim Sikdar and some others as the persons inside the room. Samartaban Bibi also recognised the said appellants Abdul .Jalil Mir and Abdul Aziz Khan in the midst of some other assailants. They also found that, apart from the persons inside the hut, there were 10 or 12 other persons outside in the courtyard, amongst whom the appellant Samed Ali Sardar was recognised by Khalilur Rahman through the bhelki i.e., the opening between the roof and the ceiling. Those who had entered inside the but repeatedly enquired about the whereabouts of Khalilur Rahman from Samartaban Bibi and even assaulted her. The appellant Abdul Jalil Mir, it is said, gave her a blow with his fist and the appellant Abdul Aziz gave her a blow with a rulers saying "Shall, speak the truth ; where is your son Khalia". The condemned accused Abdul Rahim Sikdar was recognised as one of the persons inside the but carrying a ramdao in his hand.

In the meantime, however, one Arab Ali, P. W. 7, an uncle of the said Khalilur Rahman who was sleeping in a different hut, also woke up on hearing the gun‑shots, escaped through the back door and informed the villagers. The villagers had, also heard the gun‑shots and they came to the house of Khalilur Rahman, saw the culprits leaving the house arid tried to surround them. The culprits,, however, finding themselves' so confronted by the Villagers, fired further shots, as a result of which one Gedu alias Alauddin died on the western bank of a tank and one Milan .Bepari and Samed .All Rari received gun‑shot injuries. Some of these villagers also recognised some of the accused persons in the light of the torches carried by the accused as well as 'in the light of the jute stick mashals carried by some of the villagers. The gunshots kept the villagers away and the culprits ultimately escaped,

It is further alleged by the prosecution that the condemned accused Abdur Rahim Sikdar also received a gun‑shot injury on his thigh from the gun of his co‑accused themselves while he was inside the hut. On receiving this injury, he came out of the hut, was taken to the house of the appellant Samed Ali Sardar, where one Joygun Haldar, P. W. 13, the owner of a taburia boat, was called and he was, against his wish, compelled to carry the said condemned accused Abdur Rahim Sikdar in his boat for treatment to Dacca. It is said that one Rupai Chowkidar, and Hachon Khan and 'one Abdur Rashid Khan carried the condemned accused to the taburia boat of the said Joygun Haldar which was anchored at a place called Domshar, about a mile away from the house of the said appellant Samed Ali Sardar. There the condemned accused was placed on the boat and another accused Moklesvr Rahman and the appellant Abdul Jalil Mir accompanied him in the said boat. He was not, however, taken to Dacca but was taken to Chandpur where he was admitted into the Elgin Hospital upon falsely reporting there that he had received the injury as a result of an attack on the boat, in which he was coming, by dacoits on the way. The said Joygun Haldar returned home on the following day and reported this to one Sultan Khan who detained him at his house and produced him before the police. A Sub‑Inspector of Police then accompanied the said Joygun Haldar to Elgin Hospital at Chandpur. Joygun Haldar there pointed out Abdur Rahim Sikder in the Hospital. The said Abdur Rahim Sikder had been admitted into the Hospital under the assumed name of Abdul Bashar. He was, however, placed under arrest but left at the Hospital under guard. After .the injury of the con demned accused had healed up, he was sent to Madaripur Jail where he was ultimately identified in a test identification parade held on the 26th of March 1956, by Khalilur .Rahman, P. W. I as one of the culprits who had raided his but and entered into his but on the night of the 26th of Poush, 1362 B. S. Whilst in detention, the said condemned accused submitted a petition to the Sub‑divisional Magistrate intimating that he wished to make a confession. He was, therefore, produced from jail before a Magistrate of the first class on the 23rd of April 1956, and his confession was duly recorded by the said Magistrate.

It may be mentioned here that in the first information report which was lodged by P. W. 1, Khalilur Rahman, at the police- station at 10‑30 a.m. of the 12th of January 1956, there was, of course, no mention at all about the injury to .the thigh of the condemned accused Abdur Rahim Sikdar, nor about his being carried in the taburia boat to the Elgin Hospital at Chandpur and his ultimate ,arrest there at the said Hospital.

The police ultimately on the 27th of May 1956, sent up same 27 persons including the condemned accused and the other, five appellants before us on various charges. At that time, a large number of accused were absconding. Some of these absconding persons were arrested at other places and some others from time to time surrendered in Court and, after the preliminary enquiry, a Magistrate of the first Class, on the 13th of December 1956, committed only 11 persons under sections 147 and 148 of the P. P. C. Of these 11 persons, five were also committed under section 449 of the said Code. Thereafter, it appears, the learned Sessions Judge was moved and he directed that two more should be committed under sections 302 read with section 34 and 302/149 and 148 of the said Code, one more under sections 302/120B and three others only under section 201 of the said Code. In pursuance of this order of the learned Sessions Judge, the committing Magistrate on the 25th of May 1957, made the commitments as directed by the learned Sessions Judge, and thus altogether 18 persons were committed to stand their trial in the Court of Session. Of these 18 persons, two who have since been acquitted were only charged under sections 302/111 of the P. P. C. Three were only charged under section 201 of the said Code and the remaining 13 were all charged under sections 148 and 302/149 of the P. P. C. Of these 13, five were also charged under section 449 of the said

Code and two were further charged under section 201 of the said Code. The trial was held by the learned Sessions Judge of Faridpur with the aid of four assessors and the learned Sessions Judge, accepting the unanimous opinion of the assessors, con victed the condemned accused and the other five appellants before us as herein before stated but acquitted the rest of the accused of the charges levelled against them.

The condemned accused is represented before us by Mr. B N. Choudhury and the other five appellants are repre sented by Mr. Abdus Salam Khan. Both the learned Advocates have taken certain legal objections to the validity of the trial itself. The first objection is that in this case there has been a serious illegality by reason of the misjoinder both of persons and offences as a result of which the appellants have been seriously prejudiced and the entire trial has been vitiated. The point appears to be that in so far as three accused persons, namely, Rupai Chowkidar, Hachen Khan and Abdur Rashid Khan, were only charged under section 201 ' of the P. P. C. and the accusation against them was that they had, after the main incident, which took place at the house of P. W. 1 Khalilur Rahman, appeared on the scene in the house of the appellant Samed Ali Sardar, when the condemned accused Abdur Rahim Sikdar was taken there in an injured condition, and carried him to the ghat at Doinshar about a mile away and placed him in the taburiu boat of P. W. 13 Joygun Haldar. The only evidence of their complicity in this offence was the evidence of P. W. 13 Joygun Haldar. The learned Sessions Judge took the view that in the facts alleged by the prosecution there was no concealing of any kind of evidence at all and there was no screening of any offender and as such, section 201 of the P. P. C. had no manner of application at all in the facts of this case. Upon this finding, he, in our opinion, quite rightly acquitted the said three accused persons as also the appellant Samed Ali Sardar and one Moklesur Rahman who had also been charged under the said section in respect thereof.

The learned Advocates, nevertheless, contend that assuming a charge under section 201 of the P. P. C. could be framed, even so, upon the accusations made by the prosecution itself, it is apparent that there is no manner of nexus or connection between this offence under section 201 and the other offences said to have been committed at the house of P. W. 1 Khalilur Rahman, far less can it be said that these offences arose out of same transaction so as to make it legal to hold a joint trial in respect thereof under the provisions of clause (d) of section 239 of the Code of Criminal Procedure. It is urged that in this case there is neither proximity of time, nor proximity of place, nor continuity of action, nor any community of purpose. Thus none of the criteria, usually applied in determining whether the offences arose out of the same transaction or not, were present in the present case even upon the accusations of the prosecution itself. In support of this contention, strong reliance has also been placed on a Full Bench decision of the Madras High Court in the case of In Re Seraje Narayana Bhatta and others (I L R 1949 Mad. 220).

In that case, one accused was charged for an offence under section 302 and three other accused persons were only charged under section 201 of the Penal Code for having caused the disappearance of the evidence of the murder knowing or having reason to believe that the said offence of murder had been committed by the accused who had been charged under section 302. There was a third charge against another accused in that case under section 201 read with section 109 of the Penal Code. The accused charged under section 302 and the accused charged under section 201 read with section 109 of the Penal Code were, however, acquitted but the three accused charged only under section 201 were found guilty and convicted of the said offence. The Crown appealed against the acquittals in that case, but, in appeal, for the first time; the objection was raised that the trial was illegal because of a mis joinder of charges. This objection was upheld by the Full Bench of the Madras High Court who took the view that in the complete absence of any allegation that the three accused charged under section 201 or any of them were in any way connected with the commission of the murder or with any abetment of that offence or with any conspiracy to commit that offence, they could not be tried along with the first accused who was charged under section 302 of the Penal Code and hence ordered two separate trials in respect of the said charges. In the present case, too, it appears to us that on the basis of the accusations of the prosecution itself, the three accused Rupai Chowkidar, Hachen Khan and Rashid Khan were not shown to have any connection whatsover with the occurrence at the house of Khalilur Rahman. All that could be said was that soon after the incident there they were seen in the house of the appellant Samed Ali Sardar, who was one of the persons who participated in the occurrence. This, however, is not sufficient to establish the participation of these three accused with the said offence or even to establish that they were in conspiracy with the other accused persons. At best, it was merely an isolated evidence of association and nothing more.

As has often been observed, although it is not easy to determine as to whether a particular offence or offences do or do not arise in the course of the same transaction, the usual criteria, however, that have been applied for the purposes of determining this question, is to see whether the two offences so sought to b jointly tried, are connected with each other, either with reference to the point of time or the place of occurrence or with reference to the continuity of the action of the persons accused in respect of such offences or the community of their purpose. In the facts of the present case, however, as rightly pointed out by the learned Advocates appearing for the appellants, it is difficult to, say that any of the above criteria is present. Clearly the offences at the house of Kalilur Rahman were over and complete when the condemned accused was carried away from there and brought to the house of Samed Ali Sardar. All that was done thereafter could possibly have no manner of connection with the offences committed at the house of Khalilur Rahman.

The learned Deputy Legal Remembrancer appearing for the State did, however, endeavour to show that in so far as there was some evidence or some accusation in the first information report that there was some conspiracy to murder the said Khalilur Rahman between some persons, that would be sufficient to entitle us to say that the conspiracy must have extended also to the concealment of the evidence of the murder and, therefore, the offence charged under section 201 was also a part of the same transaction. We are, however, unable to accept this contention. We need hardly point out that in the first information report on which the learned Deputy Legal Remembrancer sought to rely, there was no case that the conspiracy also embraced the concealment of the evidence, if necessary. Indeed, as we have already earlier pointed out, not a word has been mentioned in the first information report with regard to the facts upon which the charge under section 201 has been framed, nor again in the committing Court was any charge under section 201 at first framed ; but it was upon the order of the learned Sessions Judge that the committing Court later framed charges under the said section. In the circumstances, the mere fact that a conspiracy of one kind has been alleged in the first information report, that does not entitle us to say that all manner of conspiracies must be drawn within it and, therefore, it would be sufficient to make various different offences wholly unconnected with each other jointly triable with the offence in respect of which there had been a conspiracy even though these were not alleged to be the overt acts of the said conspiracy.

The learned Deputy Legal Remembrancer further urged that in so far as all the persons charged under section 201 had been acquitted, there had been no manner of prejudice to any one and, therefore, we should not interfere on this count and, in support of this contention, ,sought to rely upon some obiter observations of Sir John Beaumont in the case of Brij Bhusan Singh v. The King‑Emperor (50 C W N (P C) 348.). In that case some, four accused persons, who had been charged under section 201 with causing the evidence of the commission of the offence of murder to disappear, were jointly tried with the other persons charged under section 302 and Sir John Beaumont, in delivering the opinion of the Board, at one place, observed as follows

"No objection seems to have been taken to the trial of accused 2‑5 jointly with the appellant, although it was not suggested that they had taken any part in, or had any knowledge of, the alleged murder by the appellant. However, as these accused were acquitted, the point need not be discussed".

The learned Deputy Legal Remembrancer argues that by refusing to discuss this aspect of this question, although upon the observations of Sir John Beaumont there was a clear case of misjoinder‑of‑charges, their Lordships indicated that, if there is an acquittal, there is no preju dice and, therefore, no interference is called for. It seems to us, however, that this argument is not now available to the learned Deputy Legal Remembrancer, for, our own Federal Court has; in a more recent decision in the case of Qadar Dad and others v. Sultana Bibi (P L D 1956 F C 129) observed that where a trial is conducted in a manner not authorised by law and the rules of procedure relating to matters of fundamental character, the decision in such a trial, whether of conviction or acquittal, is of little consequence and the entire proceeding must be set aside irrespective of any question of prejudice to any one. In the case before their Lordships too, all the accused jointly tried had been acquitted in the Court of Session and against that acquittal a petition under section 439 of the Code of Criminal Procedure had been moved in the High Court and, in the hearing of that revision petition, the High Court had held that there had been a misjoinder of charges vitiating the entire trial and had directed a re‑trial. In the Federal Court, their Lordships upheld this decision of the High Court. The matter so far as we are concerned is, therefore, no longer res integra, for, we are bound by the decisions of their Lordships of the Federal Court and must prefer them to the earlier decisions of the Judicial Committee, for, this decision was given in November 1955, after the abolition of the jurisdiction of the Privy Council and the transference of .its jurisdiction to ours own Federal Court.

But even if prejudice was necessary, then we have no hesita tion in coming to the conclusion that the convicted accused have in this case been in fact prejudiced by this joint trial, for, we find that the learned Sessions Judge, when discussing the evidence of P. W. 13 Joygun Haldar, observed to the following effect

"Though he was not a witness of the occurrence, soon after the occurrence he saw a large number of men in the house of Samed Ali Sardar, Punai Sardar, Moijuddin Sardar who are brothers living in the same house. Accused Abdur Rahim Sikdar was also found in the but of Samed Ali Sardar. This circumstance considered along with that other evidence shows the accused Samed Ali, Punai and Moijuddin committed the offence and then took precaution to remove the injured from their house. This circumstance is not by itself sufficient to prove the guilt of the accused but has a great corroborative value".

Again, at another place, when dealing with the case of ‑the appellant Samed Ali Sardar, he observes :-

"It is also proved by P. W. 13 Joygun Haldar that he was called by Samed Ali Sardar to his house where he saw a large number of men. assembled and they had, 2 guns and saw' injured Abdur Rahim Sikdar, lying in his but and he is one of the men who carried Abdur Rahim Sikdar to the boat".

This also shows that the evidence of P. W. 13 Joygun Haldar was, in fact, utilised even to support the conviction of the appellants in respect of the offences in the house of Khalilur Rahman 'and, therefore, there has been prejudice to the convicted appellants in this case. In this view, therefore, we have no alternative but to hold that the joint trial was illegal and that the entire trial has been vitiat ed by reason thereof. Therefore, the convictions and sentences of the appellants before us must for that reason be set aside and a separate trial held. But the re‑trial will be confined only to the persons convicted by the Sessions Judge and not to the persons acquitted by him. Again, we must also make it clear that we are in entire agreement with the learned Sessions Judge that section 201 is not attracted in the facts alleged by the prosecution and, therefore, we do not consider it necessary that, in the retrial, any of the persons should be charged under section 201. The re‑trial should be in respect of the offences under sections 147, 148, 449 and 302/149 of the P. P. C. of the condemned accused and the five appellants in Criminal Appeal No. 343 of 1957.

Since we are ordering a re‑trial, we also wish to point out that there are two other patent illegalities apparent on the face of the records in this case. One is the admission of the evidence of the Magistrate, who held the test identification parade, under section 33 of the Evidence Act. We find that in a separate order -sheet the learned Sessions Judge has recorded the order for the admission of this evidence under section 33 of the Evidence Act on the 27th of July 1957. The only ground upon which such admission of evidence has been made is that the learned Magistrate concerned is said to be indisposed. There is no finding recorded by the learned Sessions Judge to the effect that he is in fact indisposed. The learned Judge purports to act upon a telegram said to have been sent by the District Magis trate of Bogra and the unverified petition filed on behalf of the prosecution. The telegram was not proved by anyone nor is it possible to say that the telegram was, in fact, sent by the District Magistrate. This was clearly illegal. The learned Judge should have known that before evidence can be admitted under section 33 of the Evidence Act, it must be established that the witness is incapable of giving evidence and such incapacity must be proved and proved strictly, as observed by their Lordships of the Judicial Committee in the case of Chainchal Singh v. The King‑Emperor (50 CWN 201) In the present case, it cannot be said that there was any proof at all of the incapacity of the said Magis trate.

Lastly, we find that although in this case the main piece of evidence against the condemned accused was his retracted judicial confession, the learned Sessions Judge, in his exami nation of the condemned accused under section 342 of the Criminal P. C., asked only the following questions

"Q.‑You, along with other accused persons, went .to murder Khalil as a result of which Rahima, Mumtaz and Alauddin were murdered. Have you got anything to say

A.‑Innocent.

Q.‑Did you make a confession before the Magistrate at Madaripur

A.‑Yes. The Police made me do so by holding out temp tation.

Q:‑Will you adduce evidence in defence

A.‑No".

This again was not a proper examination under section 342 of the Code of Criminal Procedure. Our Federal Court has repeatedly drawn the attention of the Courts trying criminal cases that it is incumbent upon the Court to place at least the salient features transpiring in the evidence before the accused in order to obtain his explanation thereon. We should have thought that by now all Courts subordinate to this High Court were aware of the said decisions. These decisions of the Federal Court are in the case of Rahim Baksh v. Crown (P L D 1952 F C 1) where their Lordships pointed out that, where the conviction is sought to be based mainly on the confession of the accused, the attention of the accused must be drawn to such a confession and he must be given an opportunity to give his explanation with regard to the main aspects thereof. It is not sufficient, in our view, to have merely asked if he did or did not make a confession. It should have been put to him as to whether he had or had not confessed in a particular manner. Even recently our Supreme Court has, in the case of Munwar Ahmad v. The State (P L D 1956 S C (Pak.) 300), reiterated its view taken in the first mentioned decision. We have taken the trouble to give the references of these decisions of their Lordships of the Federal Court and the Supreme Court in the hope that subordinate Courts will take the trouble of reading these decisions and guiding themselves by the observations of their Lordships.

In the view that we have taken, we have advisedly not dealt with the evidence in this case nor formed any opinion thereon. Should we, however, have in any manner made any observation with regard to the evidence, the Sessions Court will not be bound by the same at the re‑trial.

In the result, these appeals are allowed, the convictions and sentences of the appellants are set aside and re‑trial is ordered only of the appellants in the appeals before us in respect of the charges under sections 147, 148, 449 and 302/149 of the P. P. C. The Reference is also rejected. The said appellants will continue to remain in detention during the pendency of the said re‑trial.

I entirely agree with my learned brother. r.

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