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Criminal Appeal No. 167 of 1949, decided on 12th January 1950, from the order of Session Judge, Rajshahi.

Ss, 297, 537‑Fai lure of prosecution to examine 3 witnesses examined before committing Magistrate‑Absence of adequate direction to jury by Sessions judge‑Accused prejudiced‑‑Conviction set aside.

A. M. Sayem, for Appellants.

S. Afzal, Deputy Legal Remembrancer, for. Crown,

In this case two persons Mofizuddin Dewan and Reazuddin Dewan are appealing against their convictions under the second part of section 304 of the Penal Code and the sentences of four years rigorous imprisonment imported on each of them thereunder by Mr.S. T. Hussain, Sessions Judge, Rajshahi.

The appellants and 5 other persons were all placed on trial before ‑the Sessions Judge on a charge, under section 302. The jury returned a unanimous verdict finding the too appellants guilty but finding the other 5 accused not guilty.

Mr. Sayem appearing before us on behalf of the appellants has stressed the ground which has been taken in, the petition of appeal that the prosecution having withheld as 'many as three prosecution witnesses in the committing. Court, the accused were seriously prejudiced in their defence and‑as such the trial ought to be set aside.

The case arises out of an incident which took place in the early hours of the morning of 19th October, 1947 when an old man by' name Sukai was murdered. It happenned that in the village of Barigram, P. S. Bagmara, a certain man by name Hassan Ali Dewan died leaving behind a young wife Zobeda and two minor children. As there was no other person to look after Zobeda, and her minor children and her properties, the villagers persuaded Sukai to stay in Zobeda's house and to perform this office for her. A proposal was made that. Zodeda should marry appellant Reaz‑ud‑Din, the brother of the appellant Mofiz‑ud‑Din but the proposal was turned down. Mofiz‑ud-Din and Reaz‑ud‑Din were angry because they thoughts that it was Sukai who was standing in the way of the proposed marriage. Accordingly on the night of the occurrence, on the prosecution story, they murdered Sukai as he was sleeping on the veranda of Zobeda's house while Zobeda herself was sleeping inside the room.

The case for the prosecution rested entirely on the evidence of Zobeda, the only eye‑witness. It was her story that being aroused by Sukai's screams during the course of night she opened the door and looked out and saw the, appellants in. the act of committing the murder.

Mr. Sayem points out that tin the committing Court three witnesses were examined who were not put into the witness‑box in the Court of Sessions. Those three persons were Tajibulla Mondal, Amin‑ud‑Din Pramanik and Haran Sheikh. Mr. Sayem further draws our attention to the fact that the learned Sessions Judge addressed no word of caution to the Jury with regard to the non‑examination by the prosecution of witnesses who might be in a position to give material evidence in the case, instancing these three witnesses who were examined in the committing Court. It is quite true that the learned Sessions judge never gave the Jury this caution and indeed never addressed them at all with regard to these three witnesses. From the order sheet we find that on 19th April, 1949 the Public Prosecutor did file the hazira of the witness Tazibulla and stated that he was not going to examine the witness. The relevant extract in the order sheet reads as follows "At this stage P. P. files hazira of P. W. Tazibulla Mondal and says that he is not going to examine this witness. Pleader for accused persons files a petition to examine this witness as Court witness on the grounds stated in the petition. Heard lawyers of both sides. The judge peruses the deposition in the committing Court of this witness. According to his opinion the deposition will not help either party and this witness, therefore, cannot be made Court witness. But the defence may examine him if his deposition be material for the defence. This witness is discharged". On the following day, 24th April, 1949 the same thing happened with regard to other two witnesses Amir‑ud‑Din and Haran Sheikh. "Pleaded for the accused files a petition for examining Amir‑ud‑Din ‑ Sheikh and Haran Sheikh as Court witness, as the prosecution is not going to examine those witnesses though the prosecution liar filed hazira of those' witnesses. Heard Advocate for the defence. The judge has gone through the depositions of the witnesses Amir‑ud‑Din Sheikh and Haran Sheikh as deposed in the lower Court. He is of opinion that they should not be examined as Court witnesses. But the defence may examine them if he choses to do so." We have examined for ourselves the depositions given by these three witnesses to the Court below and we find it very difficult to understand what the learned Sessions judge means when he says that according to his opinion the depositions will not help either party. What these three witnesses stated was that on the night of the occurrence they went to the house of Zobeda learnt from her that she was not in a position to say who murdered Sukai. She was unable to recognise anybody because as soon as she had opened the door, she immediately closed it again as directed by Sukai.

In these circumstances we cannot but hold that the two 'appellants have been prejudiced by the manner in which the learned Sessions judge‑, failed to give any adequate direction to the jury with regard to the non‑examination of these witnesses. The appeal is accordingly allowed, the convictions and sentences are set aside and we direct that the appellants be released forthwith.

K. M A. Appeal allowed.

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