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Criminal Appeal No. 411 of 1958, decided on 4th March 1959.
, S. 326 (2) (a) [as amended by the Code of Criminal Procedure (East Bengal Amend ment) Act (XXV of 1953)]‑Empanelling of Juror, a resident of same Sub‑division from which accused were committed to trial-Objection against, cannot be raised at appellate stage.
Objection that the constitution of the Court was illegal because there had been violation of the provisions of section 326 (2) (a) of the Criminal Procedure Code, 1898 [as amended by the Code of Criminal Procedure (East Bengal Amendment) Act, 1953] cannot be entertained at the appellate stage inasmuch as such an objection involves decision on both question of law as well of fact, and as such ought to be raised at the earliest opportunity, that is, at the trial.
King‑Emperor v. Kishori Khanra 47 C W N 345 distinguished.
S. 297‑Charge to jury‑Judge's failure to warn jury that dying declaration was not liable to cross‑examination‑Omission not a misdirection‑Evidence Act (I of 1872), S. 32 (1).
Where the Judge's failure to warn the jury that the dying declaration was not liable to cross‑examination has not prejudiced the accused in any way or occasioned a failure of justice, such an omission does not amount to misdirection which vitiates the charge and occasions a failure of justice.
Cyril Wagh v. The King P L D 1949 P C 299 distinguished.
Abu Md. Abdullah for Appellants
K. S. Huda for the State.
.‑The twenty‑one appellants along with fifteen others were placed on trial before the learned Additional Sessions Judge of Khulna and a special jury of nine to answer various charges.
2. All the thirty‑six accused including the appellants were charged under section 148 of the Pakistan Penal Code. Appellant No. 1 Abdur Rahman Gazi alias Rahman Gazi was further charged under sections 302 and 326 of the Pakistan Penal Code. Appellant No. 9 Nengta fakir and appellant No. 16 Baban Gazi were further charged under section 323 of the Pakistan Penal Code. Appellant No. 11 Eshaque Shaikh and appellant No. 14 Gorai Gazi stood further charged under section 324 of the Pakistan Penal Code.
3. The jury returned a unanimous verdict of guilty under sections 304, Part I, and 326 of the Pakistan Penal Code against appellant No. 1 under section 323 of the Pakistan Penal Code against appellants Nos. 9 and 16 ; under section 324 of the Pakistan Penal Code against appellants Nos. l land 14 and under section 148 of the Pakistan Penal Code against all the twenty‑one appellants. The jury returned a unanimous verdict of not guilty under section 148 of the Pakistan Penal Code against the rest of the accused.
4. The learned trial Judge agreeing with and accepting the unanimous verdict of the jury convicted all the twenty‑one appellants under section 148 of the Pakistan Penal Code and sentenced each of them to rigorous imprisonment for two years. He further convicted appellant No. 1 under sections 304, Part I, and 326 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for ten years and five years respectively, his sentences on each of the three counts to run separately. He also convicted appellants Nos. I 1 and 14 under section 324 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for one year each, their sentences under sections 148 and 324 of the Pakistan Penal Code to run concurrently and he also convicted appellants Nos. 9 and 16 under section 323 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for six months each, their sentences under sections 148 and 323 of the Pakistan Penal Code to run separately. He acquitted rest of the accused of the charge under section 148 of the Pakistan Penal Code.
5. The case for the prosecution, briefly stated, was as follows:
On the 16th Jaistha, 1364 B. S., corresponding to 30th May, 1957, Thursday, at about one prahar of the day, two heads of cattle belonging to the accused Abdur Rahman were damaging the jute plants of the deceased Mandir Fakir. This jute land is contiguous south of the house of the complainant, P. W. 1 Abdul Hamid. Abdul Hamid seized one bf the cattle and kept it tied in his house and called the deceased Mandir Fakir and made over the cattle to him. Mandir Fakir was then taking the cattle to the pound and, when he was going by the side of the house of the appellant Abdur Rahman, the latter asked him not to take the cattle to the pound but Mandir Fakir did not listen to it. At this, the appellant Abdur Rahman Gazi called his sons, accused Shahebali and Pachu Gazi, and nephews, Gorai Gazi, Ayenuddin and Sultan Gazi, who came variously armed with lathis, dhal, sarki etc., chased and attacked Mandir Fakir and snatched away the cattle from him. When Mandir Fakir ran towards the house of P. W. 1 through his jute land after releasing the cattle and cried for help, P. Ws. Sattar, Hazari, Karim, Hashem, Majid and others came to his rescue. At this time, Abdur Rahman, who was standing on the east bank of the khal empty‑handed, called the other men of his party to come with lathis, sarki, etc., and he himself brought a D. B. B. L. gun from his house and then all the accused persons including the appellants, variously armed with lathis, sarki, dao, gun, etc.; came to the jute land and started attacking Mandir Fakir and his party by throwing brick‑bats and sarkis while the deceased Mandir Fakir and his party also defended themselves by throwing brick‑bats at the accused party. At this time, Sadan Gazi, since deceased, who also came with a dao, gave orders to the accused Abdur Rahman Gazi to fire his gun whereupon the accused Abdur Rahman fired his gun at Mandir Fakir and the gun‑shot hit Mondir Fakir causing bleeding injuries on his left forearm, left chest, right thigh, as a result of which he fell down on the ground. P. Ws. Abdul Hamid, Hajari Mollah, Wajed Mollah, Abdus Sattar, Khaleque Fakir, Adiluddin and others hastened to the rescue of Mandir Fakir when the accused Ishaque dealt a sarki blow to P. W. 1 Hamid Shaikh and Hamid Shaikh retreated being injured. After that the accused Rahman Gazi fired three more gun‑shots injuring P. Ws. Hajari, Wajed Mollah and Adiluddin. The accused Gorai Gazi dealt a sarki blow to P. W. Abdus Sattar and the accused Baban Gazi threw brick‑bats at P. W. Abdul Malek causing injuries on his person and the accused Nengta Fakir also assaulted P. W. Khaleque by throwing brick‑bats at him. Mandir Fakir was removed to the house of Majid and other injured persons and other men of Mandir Fakir's party also retreated to the house of Abdul Hamid. The accused persons began to throw brick‑bats and sarki towards the house of Hamid and thereafter they dis persed. It was alleged that one Barujan also received gun‑shot injury. P. W. t Abdul Hamid lodged F. I. R., Exhibit I, with the officer in charge, Terokhada police‑station, at the house of Majid.
6. The said O/C visited the locality, seized alamals and sent the injured persons to Khulna Hospital when Mandir Fakir expired. The officer in charge, after completing the investigation, submitted charge‑sheet against the thirty six accused who were ultimately committed to the Court of Session to stand their trial on the charges stated above.
7. All the accused persons pleaded not guilty to the charges levelled against them. Their defence was that no occurrence took place at the village Adampur in any jute land of the deceased Mandir Fakir, as alleged by the prosecution. It was suggested on behalf of the accused that on the date of the alleged occurr ence one Tahajat along with the deceased Mandir Fakir, P Ws. Abdul Hamid Shaikh, Hajari Mollah, Wazed Mollah, Tofazzel Fakir, Hakim Gazi, Fatik Sarkar, Moksed Sarkar, Abdus Sattar, Rasul Fakir, Adiluddin Fakir, Abdul Malek, Syed Mollah, Mohammad haollah, Khaleque Fakir, Majibar Shaikh, Momrej Fakir and others, being variously armed, attacked one Bachan Sikdar in his house in village Adalatpur in order to dispossess him from the land of Rajen Das of which he was in possession and committed a riot there and, in course of that riot, deceased Mandi Fakir and other P. Ws. who accompanied him received gun‑shot injuries and injuries from sarkis and brick‑bats and the accused persons were in no way involved in this occurrence. The com plainant party, in collusion with the investigating officer, falsely implicated these accused persons in order to save their own skin.
8. The jury, as has been stated above, unanimously found the appellants guilty of the charges levelled against them and the learned Judge convicted and sentenced them as stated above.
9. Mr. Abu Md. Abdulla, the learned Advocate appearing on behalf of the appellants, has contended in the first place that some of the jurors who were empanelled, being residents of the same sub‑division from which the accused were committed to the Court of Session, the constitution of the Court was illegal and as such, the entire trial has been vitiated. He has urged that juror No. 9 Abdur Razzaque Chowdhury is a resident of Khulna Sadar Sub‑division from which the accused persons have been committed to the Court of Session for trial and that, in view of the provisions of section 326, subsection (2) (a) as amended by the Code of Criminal Procedure (East Bengal Amendment) Act, 1953 (East Bengal Act XXV of 1953), the empanelling of Abdur Razzaque Chowdhury as a juror was illegal and, as such, the trial has been vitiated.
10. Now subsection (2) of section 326 of the Criminal Procedure Code has been amended by the above Act as follows :‑-----
"(2) The names of the persons to be summoned shall be drawn by the Sessions Judge in camera in such manner as to exclude,‑
(a) those who belong to the sub‑division from which the accused to be tried at the Sessions has or have been committed for trial, and
(b) those who have served within six months unless the number cannot be made up without them.
Explanation.‑In clause (a), in respect of districts having less than three sub‑divisions, reference to 'sub‑division' and 'committed for trial' shall be construed as references to 'police -station' and 'forwarded for trial or committed for trial' respectively.
(3)-------------------------------------------------------------------------------
11. Mr. Abdullah has, therefore, contended that the learned trial Judge having violated the mandatory provisions of sub section (2) (a) of section 326 of the Criminal Procedure Code in empanelling the jury, the constitution of, the Court was illegal. On a reference to the order‑sheet of the case, we find that no objection was taken in respect of this juror when he vas empanel led. We are not, therefore, prepared to entertain this objection at this stage. There is nothing in the records of the Sessions case to show that this juror is a permanent resident of Khulna Sadar Sub‑division from which the appellants have been committed for trial to the Court of Session. Our attention has been drawn to the list of jurors summoned. In that list, the address of Chowdhury Abdur Razzaque has been written as follows :‑
"Chowdhury Abdur Razzaqe son of Abdus Sobhan, illegible, P. O. Khulna".
Now if this objection was taken when he was chosen by the trial Judge, he could then ascertain from him whether he was a resident of Khulna Sadar Sub‑division or not. No such objection having been taken by the accused in the trial Court, we are unable to entertain it at this stage. Mr. Abdullah has cited before us the case of King‑Emperor v. Kishori Khanra (47 C W N 345), in which a Division Bench of the Calcutta High Court held :‑
" A convicted person can take an objection to defective constitution of the jury at any time and even for the first time at the hearing of his appeal in the High Court, although the objection may not have been taken either in the lower Court or in the grounds of appeal."
This was a case in which eighteen persons were summoned as jurors; nine attended and only seven were empanelled, and the Judge stopped as he drew the seventh name and left out the other two without any objection being taken to them. It was geld that "proviso to section 274 (2) of the Criminal P. C. was violated and such a defect, unlike the defect of summoning a smaller number of persons than required by section 326 of the Criminal P. C. affected the very constitution of the jury and was not curable by section 537". It was further held, as stated above, that " a convicted person can take an objection to such defective constitution of the jury at any time and even for the first time at the hearing of his appeal in the High Court, although the objection may not have been taken either in the lower Court or in the grounds of appeal."
12. The facts of this case are quite distinguishable from the facts of the present case. The question raised in the case referred to above is purely a question of law and, as such, it can be raised by the convicted person at any stage but the question before us is a mixed question of facts and law and, as such, it ought to have been raised as the earliest opportunity, that is, at the trial. This case, therefore, does not help the appellants at all. We, therefore, overrule the contention of the learned Advocate for the appellants that the constitution of the Court was illegal and that the whole trial was vitiated.
13. The next contention raised by the learned Advocate for the appellants is that the learned Judge in his summing up, while dealing with the dying statement of the deceased Mandir Fakir, failed to warn the jury that it had not been liable to cross‑examination and that such omission on his part amounted to serious misdirection which occasioned a failure of justice and vitiated the charge. In support of his contention, he has drawn our attention to what the Judge has observed at pages 31, 32 and 33 of the charge. The learned Judge told the jury as follows:
"P. W. 25 Mvi. J. Ahmed, Dy. Magistrate, has stated that he faithfully recorded that dying declaration, Exh. 11 of deceased Mandir Fakir. He has further stated that the declarant Mandir Fakir was not tutored in any way and that he was capable of giving reasonable answers and that only the hospital staff were present at the time of recording the dying declara tion. In this dying declaration deceased Mandir Fakir stated that accused Rahman Gazi had shot him with gun which injured him in his left hand, right elbow and left chest and that he fell down on getting gun‑shot injuries. This dying declaration about the injuries is corroborated by the medical evidence which shows that deceased Mandir Fakir bore three gun‑shot injuries on his person, on the left elbow joint, an other in the left chest below the nipple and the third on the right thigh. In his dying declaration Mandir Fakir stated that in the morning between 7 or 8 a.m. he saw that accused Rahman Gazi set one of his cattle in his jute land and that when he went to drive away that cattle accused Rahman Gazi, Gorai Gazi, Baban Gazi and others attacked him and that Rahman Gazi bore a gun in his hand. But P. W. 1 Abdul Hamid (informant) contradicts deceased Mandir Fakir and says that when two of the cattle of accused Abdur Rahman alias Rahman Gazi were damaging the jute plants of Mandir Fakir he seized one of the cattle and then kept it tied in his house and then called Mandir Fakir and Mandir Fakir came and then made over that cattle to Mandir Fakir who was taking the same to the pound. Now, gentlemen, you will carefully consider this contradictions and the dying declaration of Mandir Fakir when assessing the value of this dying declaration. I should also tell you mat it you accept the dying declaration you should accept it as a whole. You cannot accept part of it and omit the other part. You will also carefully consider whether the dying declaration is corroborated by the evidence of the eye‑witnesses. I should also tell you that though it is not illegal to convict the accused on the basis of the dying declaration alone it is highly unsafe to base such conviction on the basis of the dying declaration alone unless there are sufficient corroborative evidence."
14. From the above, it is clear that the learned Judge explained to the jury the evidentiary value of the dying declara tion and gave them necessary caution except the warning that the statement of the deceased was not liable to cross‑examination. On a consideration of the charge as a whole, we do not think that the Judge's failure to warn the jury that the dying declara tion was not liable to cross‑examination has in any way pre judiced the accused and occasioned a failure of justice. Mr. Abdullah has referred to the Privy Council case of Cyril Wagh v. The King (P L D 1949 P C 299), in which it has been held that " a dying declaration is inadmissible when upon its face it is incomplete and no one can tell what the deceased was about to add ; it is a serious error to admit it in part and it is a further and even more serious error not to point out to the jury that it had not been liable to cross‑examination". On a perusal of the judgment of their Lordships, it appears that their Lordships of the Privy Council did not quash the conviction of the accused only on the ground that there was a serious error not to point out to the jury that the dying statement had not been liable to cross -examination. They quashed the conviction of the appellant in that case mainly on the grounds that the learned Judge's repeated comments of the appellant's failure to give evidence and his illegal admission, in evidence, of the incomplete dying declaration may well have led the jury to come to their verdict. 1n the context of these, their Lordships further emphasised that it was a further and even more serious error not to point out to the jury that the dying declaration had not been liable to cross‑examination. As we have observed above that the learned Judge's omission to warn the jury that "the dying declaration had not been liable to cross‑examination" has c not prejudiced the accused in any way, we overrule the conten tion of the learned Advocate that such an omission amounted to a serious misdirection which vitiated the charge and occasioned a failure of justice.
15. The learned Advocate for the appellants has next contended that the learned Judge's failure to explain to the jury the import of section 288 of the Criminal Procedure Code amounted to serious misdirection which vitiated the charge. In support of this contention, he has drawn our attention to what the Judge has observed at page 16 of the charge. The learned Judge has told the jury as follows:
"The matters before you are the following. Firstly, the evidence on oath of P.Ws. examined before you. Their statements are substantive evidence. The statements of some of the P. Ws. made in the committing Court and put in under section 288, Cr. P. C., are also substantive evidence . . . ."
16. Mr. Abdullah is not satisfied with this explanation of section 288 of the Criminal Procedure Code. He has urged that the learned Judge ought to have told the jury that they were at liberty to accept either the evidence of the P. Ws. in the committing Court put in under section 288 of the Criminal Procedure Code which is substantive evidence or the substantive evidence of the P. Ws. given before them and that they also ought to consider whether there is any variation in the evidence of P. Ws. put in under section 288 of the Criminal Procedure Code from that given before them. We do not think that the Judge's failure to tell this to the jury amounted to misdirection which caused prejudice to the accused. The learned Advocate for the appellants has failed to point out to us any discrepancy between the evidence of the P. Ws. in the committing Court which has been put in under section 288 of the Criminal Procedure Code and their evidence given before the jury.
17. In these circumstances, the explanation of section 288 of the Criminal Procedure Code given by the Judge to the jury, referred to above, was sufficient. We, therefore, overrule the contention of the learned Advocate for the appellants.
18. The learned Advocate has next contended that the learned Judge seriously misdirected the jury by not pointing out that in accordance with the prosecution case itself the second stage of the incident was brought about by the deceased himself who summoned his party men who came armed and, as such, they were the aggressors, all the more so, as the accused party had no grievance left after having rescued their cow and, as such, all further actions by the deceased were acts of aggression. In other words, Mr. Abdullah has contended that on the learned Judge's summing up of the evidence itself he ought to have told the jury to consider whether the complainant party were the aggressors and whether the accused persons were entitled to the right of private defence of person. In support of this contention, he has drawn our attention to what the Judge has observed at page 19 of the charge. The learned Judge, while placing the evidence of P. W. 1 Abdul Hamid before the jury, stated at page 19 as follows:
"Abdul Hamid has given the prosecution story part and has stated that on 16th Jaistha, 1364 B. S. (30‑5‑5. Thurs day, at one prahar, two heads of cattle belonging to the accused Abdul Rahman Gazi were damaging the jute plants in the land of Mandir Fakir which is adjoining to his house. He then seized one of the cattle, kept it tied in his house and then informed Mandir Fakir. Mandir Fakir came, took the cattle from him and was then taking it to the pound. On the way, accused Abdur Rahman asked Mandir Fakir not to take the cattle to the pound but Mandir Fakir did not listen to it. At this, at the call of accused Abdur Rahman, accused Panchu Gazi, Shaheb Gazi, Ayenuddin and Sultan came armed with lathis, sarkis and dhals and attacked Mandir Fakir who ran away after releasing the cattle. P. W. Abdul Hamid has further stated that Mandir Fakir then cried for help when his men, P. Ws. Hajari, Abdus Sattar and others, came there. At this accused Abdur Rahman and other accused persons including Sadan Fakir came variously armed with sarkis, lathis and, dhals and accused Abdur Rahman himself came armed with a D. B.B.L. gun. The accused party then attacked Mandir Fakir and his party men. P. W. Abdul Hamid has further stated that on the order, of Sadan Fakir, Abdur Rahman shot his gun at Mandir Fakir who fell down. He then went to the rescue of Mandir Fakir and at that time he got a sarki blow on his left foot from some of the accused persons. He then retreated to his house and heard some more gun‑shots."
19. He has also drawn our attention to what the Judge told the jury at page 27 of the charge which is as follows :‑---
Some of the prosecution witnesses have stated that Mandir Fakir and his party were defending themselves by throwing brick‑bats at the accused party when the latter attacked them with sarki, lathis and gun. But P. Ws. Hajari Mollah., Wajed Mollah, Rasul Fakir stated to I. O. that both parties were using sarkis and brick‑bats. P. W. Hamid (informant) in his cross‑examination has admitted that about 20/25 persons were on the side of Mandir Fakir and some of them bore lathis."
20. From the above, the learned Advocate wants to say that there were two occurrences‑one ended with the rescuing of the cattle by the accused party and the other was when Mandir Fakir ran to the jute field after releasing the cattle and called his men who came up armed with lathis and there was mutual marpit and, as such, the complainant party were the aggressors and this fact the learned Judge ought to have told the jury so that the jury might consider the question of the right of private defence of person and also the question whether the accused were members of an unlawful assembly.
21. On a careful reading of the above quoted summing up of the learned Judge we are at a loss to understand how the learned Advocate can argue that the plea of the right of private defence was available to the accused persons and that there were two occurrences in the last of which the complainant party were the aggressors.
22. We have perused the evidence on record and we do not find any suggestion whatsoever to the P. Ws. as to two occur rences and as to any right of private defence. The defence of the accused, as it appears from the trend of the cross‑examination, was a clear denial of the occurrence at the place as alleged by the prosecution. It was clearly suggested that the complainant party including the deceased Mandir Fakir attacked one Bachon Sikdar in his house in village Adalatpur in order to dispossess him from the land of one Rajen Das and committed rioting there in course of which Mandir Fakir and some of the P. Ws. who accompanied him sustained injuries by' gun‑shot, sarkis, brick‑bats, etc., and that the accused persons were falsely impli cated. It was not even the defence case that even if the occurrence was found to have taken place at the place as alleged by the prosecution and even if the accused persons were found to have taken part in that occurrence, they were not the aggressors but the complainant party were the aggressors and, as such, they were entitled to the right of private defence of person. From the summing‑up of the Judge to the jury, as quoted above, and also from the evidence, it cannot be said that there was anything to suggest that there were two separate occurrences and that any right of private defence of person was available to the accused. That being so, we fail to see why the learned Judge should tell the jury to consider whether the complainant party were the aggressors and whether the accused persons were entitled to the right of private defence of person. We, therefore, find no substance in the contention of the learned Advocate for the appellants. No other grounds have been pressed before us.
23. On reading the charge as a whole, we find that it is a fair charge. The learned Judge in his summing‑up told the jury what could be said in favour of the accused. His explanation of law appears to be quite correct. He has placed the evidence very fairly before the jury and also the defence version and we feel that on such a charge the jury was not in any way misled in arriving at their verdict.
24. As to the sentences, the learned Advocate for the appel lants has contended that the sentences passed are severe and that the learned Judge ought to have ordered the sentences to run concurrently. We have considered the facts and circumstances under which the occurrence took place and we feel that the sentences passed are not at all severe ; but, in our opinion, the sentences imposed on appellant No. 1 Abdur Rahman Gazi under sections 148, 304, Part I, and 326 of the Pakistan Penal Code and on appellants Nos 11 ‑ and 14 under sections 148 and 324 of the Pakistan Penal Code and also the sentences passed on appellants Nos. 9 and 16 under sections 148 and 323 of the Pakistan Penal Code should be ordered to run concurrently and we order accordingly.
25. With this modification of the sentences we uphold the convictions and sentences of the appellants and dismiss the appeal.
26. The appellants who are on bail must surrender to their bail bonds at once and serve out the remainder of their sentence.
.‑I agree. Appeal dismissed
K. B. A Sentences modified.
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