Find a Lawyer

Jury Reference No. 11 of 1957, decided on 29th January 1958.

Evidence of prosecution witness admitted under S. 288, Criminal Procedure Code (V of 1898), regarding confession made by accused while in police custody whether protected by S. 27.

The prosecution witness stated in the committing Court that the accused while in police custody had confessed that he along with other persons had killed the deceased by throttling and had brought out the dead body of the deceased from under the dam. This statement was put in under section 288 Cr. P. C. and was read out by the Sessions Judge before the jury.

that under section 27 of the Evidence Act, so much only of the information, whether it amounts to a confession or not, as relates to the fact discovered is admissible in evidence and, therefore, the alleged confession by the accused that he along with others killed the deceased is not attracted by section 27 of the Evidence Act. That was not a fact in pursuance of which the alleged discovery was made.

Evidence in committing court admitted under S. 288 may be preferred to that in Sessions Court.

Where evidence taken in the committing court has been admitted under section 288 of the Code of Criminal Procedure, it may be used as evidence for all purposes and the jury may, if they so like, prefer that to the evidence given in the Sessions Court.

Jury verdict of‑When can be interfered with.

The verdict of a jury cannot be interfered unless it is found that this verdict is perverse and manifestly wrong or one which a reasonable body of men could not have reached on the evidence placed before them.

Asgar and others v. The State P L D 1958 Dacca 75 and Bhuboni Sahu v. The King 2 D L R (P C) 39 followed.

The Sate v. Razzaque and others P L D 1957 Dacca 377 ref.

A. M. Sayem with Daliluddin Ahmad. and R. Islam for Accused.

M. Fazlul Huq for State.

CHAKRABORTI, J.‑This is a Reference under section 307 of the Code of Criminal Procedure. Five persons including one Dabiruddin and one Abdul Kasim were placed on trial before the Sessions Judge of Dinajpur and a Special Jury on charges under sections 302/34 the Pakistan Penal Code and the two accused Fashiruddin and Giasuddin were also further charged under section 201 of the Pakistan Penal Code. The jury by a unanimous verdict found accused Dabiruodin and Abdul Kasim not guilty of the charge under sections 302/34, P. P. C. The learned Sessions Judge accepted the verdict of the jury and acquitted those accused of the charges under sections 302/34, P. P. C. The jury, however, returned a unanimous verdict of guilty against accused Fashir uddin, Giasuddin and Abdul Mahammad under sections 302/34 of the Pakistan Penal Code. So far as the charge under section 201 of the Pakistan Penal Code against accused Fashiruddin and Giasud in is concerned, the jury's verdict was that as they were found guilty under sections 302/34, so they found them not guilty under section 201 of the Pakistan Penal Code. The Judge, however, considered the unanimous verdict of ‑the jury against Giasuddin, Fashiruddin and Abdul Mahammad to be against the weight of evidence adduced in this case and he was, therefore, unable to accept their verdict. He, accordingly, submitted the case of those accused for consideration of this Court under section 307 of the Criminal Procedure Code for the ends of justice. In the Judge's opinion, the two accused Giasuddin and Fashiruddin were not guilty under sections 302/34 of the Pakistan Penal Code but, according to him, they could be properly con victed under section 201 of the Pakistan Penal Code, So far as accused Abdul is concerned, the Judge's opinion is that he should be found not guilty on the charge under sections 302/34.

2. The prosecution case has been fully dealt with in the learned Judge's charges to the jury as well as in the letter of Reference to this Court. Briefly stated, the prosecution case is that two heads of cattle belonging to deceased Abdullah were missing from his cow‑shed on the night of 19th Magh last. The accused Giasuddin is sister's husband of deceased Abdullah. On the 25th of Magh Friday, corresponding to the 8th February 1957, at about midday, accused Giasuddin came to his house and requested him to proceed to Lahirihat with some money and he assured him that the lost cattle would be found out there. The deceased thereafter collected some money and went to Lahirihat with accused Giasuddin but deceased Abdullah did not return since then. The relations of Abdullah thoroughly searched for the deceased but could not trace him out. On the following Monday, P. W. Resaluddin lodged a G. D. entry at the Thana stating that Abdullah went to Lahirihat along with Giasuddin on Friday, the 25th Magh, 1363. B. S., and did not return home since then, and he suspected that Abdullah might have been murdered. On Monday, P. W. Didar, a relation of the deceased, and P. W. Budhu went to Lahirihat. There they met P. W. Dhan Muhammad at a tea-stall and Dhan Muhammad asked them to go to Thana and seek remedy there. He also told them that Abdullah might have been, murdered. Thereafter another G. D. entry was made (sic) by Resaluddin that very night arid in that he suspected accused Giasuddin and Fashiruddin as the murderers of the deceased. On Tuesday morning Gias is alleged to have made an extra judicial confession before certain P. Ws. and many other persons who were assembled ,on, the spot implica ting himself and 4 other accused persons, namely, Fashiruddin, Kasem, Dabir and another dark‑complexioned man of Singua. Gias and Fashir were then taken into police custody and later Gias led the Daroga to a place west of Lahirihat where the Daroga saw marks of violence on the site and Gias then got down in a nearby tank and brought out a dead body which was kept con cealed under dam (weeds). Then, on the instruction of the Daroga, he kept the dead body again in its former position. After this Gias was taken away and kept behind a bush and detained there and Fashiruddin was brought from Lahirihat where he had been kept in police custody and Fashiruddin also is alleged to have made a confession and showed the place where there were marks of violence and he also got down in the same tank and brought out the dead body from under the weeds. The police after investigation submitted charge‑sheet against the accused ,and a Magistrate held an enquiry‑ and found a prima facie case against all the five accused and they were accordingly placed on trial before the learned Sessions Judge. All the accused pleaded .not guilty to the charges framed against them.

3. The defence is that the accused have been falsely implica ted in this case at the instance of their enemies. Gias denied to have made any extra‑judicial confession in the house of the deceased Abdullah. On the contrary, he made out a case that Dabiruddin, Jamal Master, Didar and others called him to the house of the deceased and severely assaulted him. His further case was that the dead body was floating in Nalpukur and Dabir, Jamal Master, Resaluddin and Buda assaulted him and asked him to bring out the dead body from the tank and, on his refusal, he was tied to the yoke of a cart and then made to pull it. Fashiruddin also made out a similar case that Jamal Master and others assaulted him and asked him to bring a dead body which was floating in the said tank, which he refused. Thereafter she was also tied to yoke of a cart and made to draw it.

4. Altogether 13 witnesses were examined on the side of the prosecution. The defence did not examine any witness. The prosecution examined witnesses to prove the association of the accused immediately prior to the occurrence. Secondly, they have also adduced evidence to prove extra‑judicial confessions alleged to have been made by the accused Gias and Fashir. They have also adduced evidence to prove that in pursuance of a, statement made by accused Fashir and Gias the police went to a spot where marks of violence were noticed and they also brought the dead body from a tank underneath a dam site. On this evidence, the jury returned a unanimous verdict which we have .stated before and after this verdict the Judge has made this Reference under section 307 of the Code of Criminal Procedure.

5. Mr. Sayem appears on behalf of the accused Fashiruddin, Mr. Ruhul Islam appears' on behalf of Abdul Muhammad and Mr. Daliluddin Ahmad appears on behalf of Giasuddin. Mr. M. Fazlul Haq appears on behalf of the State.

6. It has been contended on behalf of the accused that there were serious mis-directions by the Judge in his charge to the jury and it was also contended that if the jury were pro perly directed on the evidence adduced, they would not have returned a verdict of guilty as against these accused. It is also contended on behalf of these accused that there was no sufficient evidence to go before the jury on which the accused could have been convicted. Mr. Sayem has further argued that so far as the accused Fashiruddin is concerned there is no extra‑judicial confession made by him and he was only implicated in an alleged extra‑judicial confession made by Gias and the fact that he was implicated in the extra‑judicial confession of the accused Gias was no evidence as against his client. In that connection. Mr. Sayem drew our attention to the case of Asgar and others v. The State. (P L D 1958 Dacca 75), to which my learned brother Rahman, J., was a party and te judgment was delivered by him. In that case it was definitely laid down

"A retracted confession should not be made the basis of a conviction unless it is corroborated in material particulars by other evidence and that its value as against the other co‑accused is almost nil.

This principle of law has also been enunciated in Bhuboni Sahu v. The King (2 D L R (P C) 39). Our attention has been drawn to the evidence of P. W. 8 Buda alias Abdur Rahman before the committing Court which has been put in at the instance of the prosecution under section 288 of the Code of Criminal Procedure. As observed by my learned brother in the case referred to above, the law is that in a case where evidence of any witness is put in under section 288 of the Criminal Procedure Code. "‑The Judge should direct the jury that where evidence taken in the committing Court has been admitted under section 288 the of the Code of Criminal Procedure, it may be used as evidence for all purposes and the jury may, if they so like, prefer that to the evidence given in the Sessions Court." In the evidence of this particular witness before the committing Court, he made a statement : "Under orders of S. L, Gias again kept the dead body under the dam. Under his order, accused Gias was taken to some distance by police constable and was kept concealed in a jungle there. S. I. then went to Lahirihat and returned with accused Fashiruddin. He showed us all the very places which were shown by accused Giasuddin and told (sic) that he, Giasuddin, Kasem, Dabir and one black (sic) man had killed Abdullah by throttling. He then got down the southern portion of pukur and brought out the dead body from under the dam where it was replaced by accused Giasuddin."

This was statement of the witness before the committing Court which was read out before the jury. The question whether the Judge was right in admitting this piece of evidence. Section 26 of the Evidence Act lays down

"No confession made by any person whilst he is in the custody of a police‑officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person".

It has been contended on behalf of the accused Fashiruddin that this extra‑judicial confession is not admissible in view of section 26 of the Evidence Act. Mr. Huq, appearing on behalf of the State, however, has drawn our attention to section 27 of the Evidence Act where it has been said

"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police‑officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved".

7. It is true that section 26 is controlled by section 27 of the Evidence Act. This however is not a case where the alleged con fession was made only in the presence of a police‑officer but it is a case of an alleged confession made while accused Fashiruddin was in police custody. Under section 27, so much only of the information, whether it amounts to a confession or not, as relates to the fact discovered is admissible in evidence. Taking this to be the law, the alleged confession, where it is said that he, Giasuddin, Kasem, Dabir and one black man killed Abdullah, is not attracted by section 27 of the Evidence Act. That was not a fact in pursuance of which the alleged discovery was made. So, in any view, the learned Judge was clearly in error in admitting the evidence as against the accused Fashiruddin. Moreover, the learned Judge in his charge to the jury did not warn them that they should not be in any way influenced by the said alleged confession of accused Fashiruddin. Under section 307 of the Code of Criminal Procedure, the whole case is no doubt before this Court and this Court will exercise any of the powers which it may exercise on appeal and, subject thereto, it shall, after giving due weight to the opinion of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him upon the charge framed and placed before it. The law is well settled that the verdict of a jury cannot be disturbed unless it is found that this verdict is perverse and manifestly wrong or one which a reasonable body of men could p not have reached on the evidence placed before them. But the Court has no doubt to determine whether a reasonable jury pro perly directed could, on this evidence adduced, have returned a verdict as they have done. The High Court will no doubt see whether it is reasonable or proper that the jury would not have returned the verdict but for the misdirection and non‑direction complained of. After all, this Court can interfere where this misdirection or non‑direction has caused a complete failure of justice. In this connection, a reference may be made to another case, The State v. Razzaque and others (P L D 1957 Dacca 337), where my learned brother Rahman, J., sitting with Ismail, J., observed

"It has been generally accepted that in a reference under section 307, Cr. P. C.. the High Court has in a fit case the power to order a retrial if it considers the same to be necessary for the ends of justice which is the determining factor also for the High Court in disposing of such reference. But, at the same time, it should be remembered that a retrial is not to be lightly offered and should not be ordered unless the High Court is unable upon the evidence on the record to come to any definite conclusion of its own after giving due weight to the opinion of the Judge and the jury or unless it is satisfied that there has been some serious error of procedure which has prejudiced the accused."

In that particular case, apart from the extra judicial confession, there was no other direct evidence of the complicity of the accused persons. The rest of the evidence was merely circum stantial and that too was neither convincing nor complete so as to be sufficient to form the basis of any conviction. In view of the discrepant nature of the evidence and the manner in which the evidence was brought to light it was decided that upon that evidence it would have been unsafe to convict the accused under any of the charges framed in that case.

8. There are other serious mis‑directions and non‑directions in the charge delivered by the learned Judge to the jury P. W. 8 Budhu has stated in his evidence before the Sessions Judge "that Fashir throttled him and while Kasem pressed his leg against the ground, Dabir pressed him by his chest against the ground, Gias himself was standing close by". In this evidence the accused Abdul was not named. The learned Judge nowhere in his charge has stated to the jury that Abdul was not named by the accused Gias in his extra judicial confession as deposed to by P. W. 8. Then again the police‑officer, P. W. 12, has stated in his cross -examination that he examined Budhu on the 19th of February 1957, at Kadu Saha but he did not record his statement under section 161 of the Code of Criminal Procedure. The learned Judge also failed to mention that fact before the jury and did not warn them that in view of the statement of Budhu and the state ment of P. W. 12, it would be for them to decide whether they would rely on the evidence of the witnesses about the complicity of the accused Abdul and the other accused in the crime These are serious mis‑directions and non‑directions which have occa sioned a complete failure of justice. We do not know exactly what would have been the verdict of the jury if they were pro perly directed. But it is difficult to say whether the jury would have returned a verdict of guilty against the accused if they were warned in the line which we have indicated above. When the evidence is circumstantial, the mis‑directions in the charge to the jury would operate against the accused and certainly there is a miscarriage of justice and the verdict should be set aside and, in view of the authority laid down in the case of the State v. Razzaque and others where there has been an illegality in the procedure and where there has been such serious mis‑directions and non‑directions causing failure of justice, it cannot be said that the accused were properly tried, before the learned Additional Sessions Judge.

9. In this matter, in considering the question whether the case should go back for retrial, we have also taken into consider ation the argument of the learned Advocate Mr. Sayem whether there was evidence as against the accused for which they should be again tried by the Court. It is no doubt true that there is an extra‑judicial confession and the evidence of association and the evidence that the dead body was brought out by the accused Giasuddin in this case and as against the accused Fashiruddin there is also evidence of association and also evidence that he brought out the dead body from underneath the dam and as against the accused Abdul there is also evidence of association immediately prior to the occurrence. It is not for us to say at this stage what should be the effect of this evidence led by the prosecution. But it is clear that there is some evidence in this case for which the case should go back for retrial. It is for the Judge and the jury to decide whether on this evidence the accused or any of them could be convicted of the charges framed as against them. Even the learned Judge in his letter of Reference has recommended to this Court that so far as the accused Giasuddin and Fashiruddin are concerned, they should have been properly convicted under section 201 of the Pakistan Penal Code.

10. In the circumstances, we see no option but to send back the case for retrial of these three accused, Giasuddin, Fashiruddin, and Abdul Muhammad, in accordance with law. The Reference is, therefore, disposed of and the case is sent back for retrial in accordance with law in the line as indicated above.

‑Reluctant as I am even in a case of a jury trial to order a retrial, I agree with the order passed by my learned brother in the present case, for, according to me, there has been a serious error of procedure in the present case. The learned Judge had a discretion either to admit or not the evidence Of P. W. Budhu given in the committing Court under section 288 of the Code of Criminal Procedure. Now, it has repeatedly been pointed out by this Court as well as by other High Courts that mis-discretion should be exercised in a proper and judicial tanner,

In the present case, since, it was apparent from a plain reading of the deposition in the committing Court of the said witness that it contained a purported extra judicial confession of one of the accused persons, which was hit by the provisions of section 26 of the Evidence Act, the learned Sessions Judge, in my opinion, wrongly exercised his discretion in admitting this and making it evidence for all purposes under section 288 of the Code of Criminal Procedure. If this was intended merely to contradict this witness by a previous statement of his, as it appears from his cross‑examination, then portion of the evidence could have been put in under section 145 of the Evidence Act. I also consider this to be an error in the procedure 'of the trial which, there can be no doubt, has caused serious prejudice to the accused. I, there fore, concur in the order of retrial made by my learned brother in the present case.

12. Let the records be sent down immediately and the retrial be held as expeditiously as possible.

Z. A. S.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.