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Criminal Appeal No. 522 of 1956 decided on 27th,rNovember 1957.

Charge to jury‑How to be recorded.

It is absolutely necessary that the heads of charge should show clearly and distinctly what the exposition of law actually was. It must contain in itself sufficient materials for High Court to satisfy itself that there was a proper and adequate explanation of law involved in the case in relation to the facts thereof. The practice of merely stating in the charge that the sections of the Code have been read and explained not only deprives the accused of the opportunity of pointing out to the High Court that the explanation was inadequate or incorrect, but it also deprives the High Court of the advantage/of knowing what it was that was exactly placed before the jury.

Judge to state to jury that they should form their own opinion on the evidence‑Criminal Procedure Code (V of 1898), S. 297.

Although there is no legal bar to the Judge expressing his opinion on questions of fact even in dogmatic terms before the jury, yet he ought, as far as possible, to conceal his feelings. If, however, he does express his opinion on question of fact he must follow it up immediately by delivering due caution that the jury is not bound by such expression of opinion and they may well differ from it.

May be based on testimony of a single witness‑Evidence Act (I of 1872), S, 134.

The law does not require a particular number of witnesses to prove any fact. Even the testimony of a single witness, if believed, is sufficient to found the conviction.

Khabiruddin and others v. The State P L D 1957 Dacca 591 rel.

The three appellants before us, who are brothers, were tried by Mr. A. S. M. Rashed, an Assistant Sessions Judge, Dacca, with a jury consisting of five persons, on a charge under sections 304/34 of the Pakistan Penal Code for having, in furtherance of the common intention of them all, committed the murder of one Fakir Mahmud at about 8 a.m. on Thursday, the 15th Agrahayana, 1362 B. S., corresponding to the 1st of October 1955. The jury by a majority of three against two found the appellants guilty under Part II of section 304/34 of the Pakistan Penal Code. The learned Assistant Sessions Judge agreeing with and accepting the said majority verdict convicted them of the said offence and sentenced them to undergo rigorous imprison ment for 4 years each.

This appeal is against the aforesaid conviction and sentence.

The case against these appellants was that they had on the morning of the 1st of October 1955, come upon the deceased and a companion of his, one Munsuruddin, who has not been examined as witness in the Court of Session, whilst they were for the first time ploughing on the western half of C. S. Plot No. 956 of Mauza Bara Nilua within police‑station Daulatpur in the district of Dacca, beat them with pointed lathis, as a result of which the deceased fell down unconscious on the said plot with bleeding injuries on his head. Then his companion Munsuruddin raised hue and cry which attracted Sk. Juran, P. W. 2, who came rushing towards the plot in question and from a distance of about two pakhis, saw the appellants beating Fakir Mahmud with lathis and the deceased lying on the ground. Meseruddin, P. W. 1, the son‑in‑law of the deceased, also hastened to the place of occurrence on hearing the cries of Munsuruddin, but when he arrived there he found his father‑in‑law lying senseless with bleeding injuries on his person and the ;appellants running away with pointed lathis in their hands. Other persons also came to the place of occurrence attracted by the cries of Munsuruddin. But they only saw the deceased lying senseless on the ground with bleeding injuries on his person and heard from Juran, P. W. 2, that the deceased had been assaulted by the appellants.

The deceased was thereafter removed to his house where other persons including Raizuddin, P. W. 5, and Noai Sk., P. W. .6, came and found the deceased in an unconscious state with bleeding injuries on his head and his person. They also heard about the occurrence from P. W. 1, Meseruddin, and P. W. 2, Juran Sk. P. W. 1, Meseruddin, the son‑in‑law, then went to fetch a doctor from Gheor but, as he could not find any doctor there, he returned to the house at about midday when he found that his father‑in‑law had already expired. He then left forathe thana and arrived there sometime in the evening ; but, as no officer competent to record a first information report was present at the thana at that time, he got a first information report written out by on Gaziur Rahaman, a shop‑keeper of Daulatpur, and presented the written first information report at the thana to Constable No. 1103 Abdul Hakim. The latter in his turn made over the said first information report to Assistant Sub‑Inspector of Police Birendra Kumar Chakraborti, P. W. 8, when he arrived at the thana at about 2 a.m. in the morning. The Assistant Sub‑Inspector 'of Police thereupon visited the locality at about 3 a.m. of the same morning and took preliminary steps ; he held an inque t over the" dead body and forwarded the same to the morgue for 'post‑mortem examination under the escort of P. W. 7, Constable Bankfm Behari Sarnamat. He also seized some blood‑stained earth from the plot in question and some blood‑stained pillows from the house of the deceased.

The post‑mortem examination was held by P. W. 4, Dr. M. F. Khan, the then Sub‑divisional Medical Officer of Manikganj, on the 3rd of December 1955. He found as many as six injuries on the person of the deceased all of which were incised wounds; but except for one injury all the. other five injuries were of a simple nature. The said injury was an incised wound 2 1/3" x 2" x bone‑deep obliquely at the centre of the occiput which on dissection disclosed that the occipital bone had been fractured obliquely from below upwards with sufficient effusion of clotted and semi‑clotted blood into the scalp and skull. On removal of the fractured bone plate, the brain substances, especially the occipital lobe of the brain were found lacerated, with extravasation of clotted and semi‑clotted blood over the same. Death was, thus, in the opinion of the doctor, due to compression of the brain as a result of the fracture of the skull bone and haemorrhage over the brain substances. These injuries were, according to him, ante‑mortem and homicidal and could have been caused by a sharp‑edged bamboo resembling a katra.

P. W. 9, Rashid Ahmad Khan, the officer in charge of Daulatpur police‑station, after completing the investigation, sub mitted a charge‑sheet against the three appellants before us on the 21st of December 1955.

It is further alleged by the prosecution that although this C. S. Plot No. 956 originally belonged to one Makram Kazi, grand‑father of the appellants, the same had been auction purchased in execution of a decree by Noai Sk., P. W. 6, who had also taken delivery of possession of the same through Court, and had, ever since then, for over .30 years, been in continuous and undisturbed possession of the said plot, but since his ploughing cattle had got diseased in last Agrahayana, he had for the first time given barga settlement of the western portion of the said plot to deceased Fakir Mahmud and of the eastern portion to P. W. 2 Juran Sk. Furthermore, the prosecution alleged that the appellants had ill‑feelings with the deceased over the taking of earth from the western boundary land of his homestead. It appears . that the appellants were neighbours of the deceased. Hence, it is said that it is out of this grudge that the appellants beat the deceased to death.

As against this, the defence of these appellants was that the disputed land belonged to them since the time of their grand father and that they had all along been in possession thereof ; that P. W. 6 Noai Sk. never retained possession of the said land ; that, as such, on the date of occurrence the said Noai Sk. who was an influential man of the locality had set up the deceased and his companion Munsuruddin to take forcible possession of the land and that the deceased and, his companion Munsuruddin had for the said purpose actually come upon the land and first attacked the appellants' party with deadly weapons but there was a melee and in the course of the mutual mar pit the deceased had received the injury. Hence, if anything was done by the appellants, it was done in exercise of their right of private defence of person and property.

The prosecution sought, to prove its case through the oral testimony of some ten witnesses of whom only P. W. 2, Sk. Juran, claimed to be an eye‑witness of the occurrence P. W. 1. Meseruddin, only saw the appellants running away with lathis in their hands. P. Ws. 3, 5, and 6 arrived after the first two witnesses and they only heard from them about the occurrence and saw the deceased lying senseless with the injuries on him. P. Ws. 5 and 6, of course, did not go to the place of occurrence but they only came to the house of the deceased when the latter was carried there. P. W. 6, Noai Sk., also purported to prove his title and possession of the said land. The other witnesses, P. Ws. 1, 2, 3 and 5, also spoke about the possession of P. W. 6 for many years. P. W. 4 is the doctor who carried out the post mortem examination. P. W. 7 is the constable who escorted the dead body to the morgue and there identified it before the doctor. P. W, 8 is the Assistant Sub‑Inspector of Police who took preliminary steps and seized blood‑stained earth from the plot in question. P. W. 9 is the Sub‑Inspector of Police and P. W. 10 is a formal witness called upon to prove a certified copy of the sale certificate produced on behalf of the prosecution to establish the title of P. W. 6 to the said land.

In addition to these witnesses, the defence examined one witness, Basanta Sarkar, who proved four dakhilas, Exhibits A to A‑3, to show payments of rent in respect of the said lends by the appellants upto 1362 B. S. as also a deed of gift executed by the said Makram Kazi in favour of his two sons Baser and Mansur some 25 to 30 years ago. This was a registered document and he claimed to be an attesting witness to the said deed of gift.

The learned Assistant Sessions Judge in his charge to the jury purported to summarise this evidence, which was not of an unduly complicated nature, and to point out to the jury that on this evidence the prosecution had not only failed to establish the possession of the deceased in the land in question but the defence e had definitely succeeded in making out a very probable case of the possession, having continued with them, of the said land since the time of their grand‑father who was admittedly the original owner and possessor of the said land. Hence, the defence had succeeded in establishing that they had a right of private defence of property but, at the same time, it was for the jury to consider whether that right had or had not been exceeded in this case. There was no clear evidence to show as to which of the appellants had struck which blow but this much, according to the learned Assistant Sessions Judge, was clear that the appellant who dealt the fatal blow exceeded the right of private defence of person or property. He directed the jury, therefore, that if they accept the plea of the right of private defence then they should hold that section 34 of the Pakistan Penal Code was not applicable in this case, but if they reject that plea then they would also have to consider whether the appellants had acted in concert in further ance of their alleged common intention. In considering this, they were also told to take into consideration the fact that the appel lants went to the disputed plot when the deceased was ploughing the same after taking barga settlement thereof, armed with pointed lathis and inflicted as many as six injuries on the person of the deceased, some of which were inflicted even when he had fallen down on the ground. Not content with pointing out this, he went on to direct the jury that these facts and circumstances would indicate that they came to the plot after mutual deliberation and with the common intention of causing death or of causing such bodily injury as is likely to cause death or to commit such act with the knowledge that it is likely to cause the death of the injured.

It is this charge to the jury that it is now sought to be assailed on behalf of these appellants and the first point on which it is so assailed is that the charge does not contain a sufficient or adequate explanation of the law, in so far as none of the relevant sections of the law applicable in the present case have been at all explained to the gentlemen of the jury. We have been taken through the charge and we must observe that there is a great deal of substance in this contention. We find it recorded that section 3 of the Evidence Act, sections 97, 99, 100 to 105, 299, 300, 320, 325 and 326 of the Pakistan Penal Code have merely been read over and explained to the jury. There can be no doubt that some of the sections were by no means simple sections, easily intelligible to ordinary lay persons. Nevertheless, the learned Assistant Sessions Judge in his charge records nothing more than this that he has merely read and explained these important sections, without taking the trouble of setting out in the heads of charge what exactly he did not explain. It is regrettable that even now there should be Assistant Sessions Judges in this Province who are unaware of the repeated disapproval of such a practice not only by this Court but also by the Calcutta High Court. In the case of Khabiruddin and others v. The State (P L D 1957 Dacca 591) I have already had occasion to deal with this question in detail and to point out with reference to the earlier decisions of the Calcutta High Court and this Court that the High Court has over and over again pointed out that it is absolutely necessary that the heads of charge should show clearly and distinctly what the exposition of law actually was, It must contain in itself sufficient materials for this Court to satisfy itself that there was a proper and adequate explanation of the law involved in the case in relation to the facts thereof. The practice of merely stating in the charge that the sections o the Code have been read over and explained not only deprived the accused of the opportunity of pointing out to this Court that the explanation was inadequate or incorrect, but it also deprived this Court of the advantage of knowing what it was that was exactly placed before the jury. The charge before us is, in this respect, we must observe, the worst of its kind that we have come across. The learned Assistant Sessions Judge has not, as we have pointed out, taken the trouble of explaining any of the relevant provisions of the law that came up for consideration in this case, although there were such important sections as 299, 300 and 320 to 326 involved in this case.

The next complaint against the learned Assistant Sessions Judge is that he has allowed himself to be carried away by his own bias and the incorrect appreciation that he made of the evidence in this case and placed his own views in most dogmatic terms before the jury Which he should not have done. As a sample of this, our attention has been drawn to the following portions of the charge which are set out below :

"There was none except the three accused to protect the property and, as such, if anybody was attacked by the deceased party it was the accused and consequently if anybody had gone to the spot to protect the property and thereby inflicted the injuries on the person of the deceased it was none but the accused. The medical evidence shows that as many as 6 incised wounds were caused on the person of deceased Fakir Mahmud. According to the opinion of the Medical Officer, incised wounds might be caused by sharp‑edged bamboo‑made katra or iron‑bladed katra if the strike had been made with the sharp‑edged portion. So the injuries must have been caused by sharp‑pointed weapon. It cannot be caused by blunt substance such as lathi. So the evidence of P. W. 2 Juran that the lathis were pointed at one end cannot be dis believed and the discrepancy pointed out by the accused side does not indicate that this witness did not see the occurrence,

* * * * * * *

But in view of the defence plea of right of private defence, the evidence of this witness regarding the occurrence cannot be disbelieved.

If you are to accept the defence plea of right of private defence and along with it if you consider the evidence of the eye witness, P. W. 2 Juran, and the circumstantial evidence as adduced by P. W. 1 Monsoruddin, the conclusion, in my opinion, would be that it was none but the accused who caused the injuries on the person of deceased Fakir Mahmud on the disputed plot on the date of occurrence * * * *.

I have pointed out to you the nature .of the dakhilas and it appears to me that these dakhilas are of recent origin and hence hardly any reliance can be placed on them.

The accused did not complain of and injury sustained by them as a result of the attack while taking forcible possession of the plot by Fakir Mahmud and his party. So you may take it that the accused who dealt the fatal blow exceeded the right of private defence of person and property".

It is not necessary to quote further from the said charge but e might observe that these are not the only portions in which such dogmatic expressions of opinion have been made by the learned Assistant Sessions Judge on questions of fact. It is true that in the penultimate paragraph of the charge he has concludes that his opinions relating to facts, which he admits he has already expressed in the charge, are riot binding on the gentlemen of the jury and they may come to their own conclusion about the same; but it is argued that this caution at the end was not enough. This seriously prejudiced the accused persons in this case, particularly, since the law was not properly explained and material portions of the evidence in favour of the appellants were not fairly placed before the jury. Here again, we must point out that in the above mentioned case of Khabiruddin and others v. The State, this Court also had occasion to point out the nature of the duty of the Judge, while charging the jury. It has been held in that case that it is not sufficient merely to make, a brief reference to the caution in the beginning of the charge or at the end of it but that the caution should be delivered immediately after the expression of opinion by the learned Judge himself and that the omission to do so amounts to a misdirection. We must emphasise again that although there is no legal bar to the Judge expressing his opinion on questions of fact even in dogmatic terms before the jury, yet he ought, as far as possible, to conceal his feelings. If, however, he does express his opinion on questions of fact he must follow it up immediately by delivering due caution that the jury is not bound by such expression of opinion and they may well differ from it. On this point too, therefore, the contention of the appellants must be upheld.

The third grievance made on behalf of the appellants, which appears to us to be of a most serious character is that the learned Assistant Sessions Judge, has failed to place material evidence in favour of the accused before the jury. It is pointed out to us that in the first extract from the charge quoted earlier in this judgment, he pointed out to the jury that according to the Medical Officer the incised wound might be caused by sharp‑edged bamboo‑made katra or iron‑bladed katra, if the , strike is made with the sharp‑edged portion. Hence, the injuries in the present case must have been caused by sharp‑pointed weapon. This, it is urged, is in direct contradiction of what exactly the Medical Officer said in his evidence. We have been taken through his evidence and we find that the evidence given by this doctor in cross‑examination was to the following effect

"The injuries mentioned above cannot be caused by pointed lathi or pointed bamboo. There is difference between penetrated wound on the one hand and incised wound on the other. Pointed lathi or instrument might cause penetrated wound and it cannot cause incised wound.

Injury No. 1 may be caused by fall on the plough‑share if the plough‑share is sharp‑edged.* * * * * * *

To Court : Incised wound might be caused by sharp‑edged bamboo‑made katra or iron‑bladed katra if the strike is made with the sharp‑edged portion.

Edges of the injury on a skull, if caused by double‑edged sharp bamboo katra, the appearance of the wound and its edges will look incised as in the case of the injury caused by sharp edged dao or spear".

We fail to understand how from this evidence the learned Assistant Sessions Judge came to charge the jury that according to the Medical Officer the injury must have been caused by sharp pointed weapon. Indeed, the impression left by this evidence of the Medical Officer, in our minds, is that even if it be accepted, as two of the prosecution witnesses have stated, that the bamboos used by the appellants were pointed bamboos, the injuries could riot have been caused by such bamboos. There was no evidence at all that any of the instruments used by the appellants in this case was like a katra or contained iron blades of any kind what soever. We fail, therefore, to appreciate how the learned Assistant Sessions Judge discovered this evidence. This, in our opinion, is a very serious misdirection and ‑has caused great prejudice to the accused.

In addition to these points, the learned Advocate appearing on behalf of the appellants has of course urged a large number of other points but we do not consider it necessary to go into all of them except to say that, in our opinion, there is one other serious non‑direction in the charge which amounts to a misdirection. In the present case, according to the prosecution evidence; there was at least one other person with the deceased who was ploughing the field. This person was not examined on behalf of the prose cution; yet, nowhere in the charge, either in the preliminary portion or in any other portion, has the learned Judge said anything about the jury being entitled to draw any adverse presumption against the prosecution for the non‑examination of a material witness. Further‑more, we find that on the evidence of P. W. 2, the sole eye witness in this case, some 15 or 20 other persons of the village came to the plot in question immediately after the occurrence. But curiously enough none except the relations of the deceased have been examined in this case. No disinterested person has been called. That also was a circum stance to which the attention of the jury should have been drawn.

Considerable grievance was also made on behalf of the appellants with regard to the exposition of the law re lating to section 34 of the Pakistan Penal Code, and it was urged that even if the provisions of the said section had been explained to the jury, they had not been explained in relation to the facts of the case. We are unable to accede to this contention, because, curiously enough, this is the only section that the learned Assistant Sessions Judge has considered it fit to explain in his charge to the jury and we are satisfied that the explanations given of the provisions of the section are, even though brief, not incorrect. We are also satisfied that the learned Assistant Sessions Judge has in fact also indicated the evidence upon which the inference of the appellants acting with common intention can be made.

The learned Advocate for the appellants has also invited us to lay down a general principle that where in a case of murder or culpable homicide not amounting to murder there is only one eye‑witness, it is the duty of the Judge to tell the jury that it is the rule of prudence that the testimony of one eye‑witness should in such cases not be acted upon. We regret we are unable to do so, because then we would be laying down a principle which is definitely contrary to the provisions of law. The law does not require a particular number of witnesses to prove any fact. Even the testimony of a single witness, if believed, is sufficient to found the conviction.

In view of these serious misdirections in the charge under consideration, the learned Advocate appearing on behalf of the State made no attempt whatsoever to support the charge but he contended that, nevertheless, this was a fit case which should be sent down for retrial. We have, however, given the matter our anxious consideration and, on a perusal of the evidence, we do not consider that any useful purpose will be served by sending the case down for retrial, except to further harass the appellants in this case. On the evidence on record, we have no hesitation in saying, that we ourselves entertain a serious doubt as to the guilt of the accused persons.

In these circumstances, we do not think that this is a fit case in which we should direct a retrial.

The result, therefore, is that this appeal is allowed, the con victions and sentences of the appellants are set aside and they are acquitted of the charges levelled against them. The appellants who are still in jail should now be set at liberty forthwith, if not required in any other connection. The appellant Tamser who is on bail should now be discharged from his bail bond:

KHAN, J.‑I agree.

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