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Criminal Appeals Nos. 223‑225, 240, 241 and 242 of 1960, decided on 8th August 1960.

------- S: 257 (2)‑Court while making order for deposit of reasonable expenses of witnesses competent to impress upon accused their liability, for expenses of witnesses found to be unnecessary or who are not examined‑Order requiring deposit of "necessary expenses" however, should state specifically amount required to be deposited.

On a petition being filed by the accused for summoning defence witnesses, the Court passed order requiring the accused "to deposit at once necessary expenses for payment to those witnesses who are found to be unnecessary or who are. not examined". It was argued that the order passed by the Court amounted to a refusal, to summon the witnesses cited by the accused :

Held, that the order could not be construed as refusal to summon the witnesses. Under section 257 (2) of the Criminal Pro cedure Code, 1898 a Court trying a case is fully empowered to order that the reasonable expenses required for attendance of a witness shall be deposited in Court by the person applying for his attendance before the witness is summoned. So the Court was legally competent to impress upon the accused that they would be liable for all expenses incurred for calling unnecessary witnesses or to call upon them to deposit at once necessary expenses for payment to those witnesses who are found to be unnecessary or who are not examined

Held further, that the order requiring deposit of "necessary expenses", however, should not be vague but must specify the exact amount required to be deposited in connection with the summoning of the witnesses cited by the accused and the accused given opportunity to deposit the same.

Gouri Sankar v. Collector of Muzaffarpur 26 Cr. L J 965 rel.

----- S. 342‑Opportunity not afforded to accused to offer explanation about execution of document which was material piece of evidence against him and which was relied upon for his conviction‑Accused, held, prejudiced Retrial ordered.

Intaj Mia and others v. The Crown (1955) 7 D L R 218; Abdus Salam Molla v. The Crown P L D 1955 F C 129 ; Abdul Wahab v. The Crown P L D 1955 F C 88 and Munawar Ahmad v. The State P L D 1956 S C (Pak.) 300 ref.

D. L. Rahman with M. H. Khan, and A. M. Sayem with Md. Yahya for Appellants.

Maksumul Hakim for the State Bank of Pakistan.

The questions of law and facts involved being common and the appellants being the same, Appeals Nos. 223, 224 and 225 of 1960 by the accused appellant, Muhammad Motahar Hossain, and Appeals Nos. 240, 241 and 242 of 1960 by the accused-appellant, Abdur Rab alias Muhammad Abdur Rab, arising respectively out of the Pabna Foreign Exchange Regulation Act, Tribunal Cases Nos. 27, 28 and 29 of 1958 have been heard together and will be governed by this judgment.

2. In each of the aforesaid three tribunal cases both the appellants were charged with the commission of an offence punishable under section 23 of the Foreign Exchange Regulation Act as amended by Act XL of 1957 by having contravened the provisions of section 4 (3) and 12 of the said Act. They were ultimately convicted of the said offence in all the three cases and sentenced variously thereunder. Thus the sentences imposed upon each is rigorous imprisonment for six months plus fine of Rs. 6,000, in default rigorous imprisonment for a further period of six months in case. No. 27, rigorous imprisonment for nine months and a fine of Rs. 9,000, in default rigorous imprisonment for a further period of six months in case No. 28 and rigorous imprisonment of six months together with a fine of Rs. 5,000 in default rigorous imprisonment for a further period of six months in case No. 29. As these sentences are to run con secutively the aggregate period of imprisonment imposed in each case runs to a length of 21 months and similarly the aggregate fine imposed totals Rs. 20,000 each.

3. The gist of the prosecution case against them was that on different dates during the years 1955 and 1956 the accused -appellant Abdur Rab as the principal and the accused‑Appellant Muhammad Matahar Hossain Talukdar as his agent duly appointed as such under a registered power of attorney executed by the former exported to India, as allowed by the Land Customs Officer, Sirajganj, on requisite applications and declarations in the prescribed forms made by. them to that end, eggs worth Rs. 9,217/8/. Rs. 5,176 and Rs. 11,677 totalling Rs. 26,070/8/ in Case No 27, Rs. 7,246/8/‑, Rs. 6,953/8/‑ and Rs. 24,224/8/ totalling Rs. 38,424/8/‑ in Case No. 28 and Rs. 5,429, Rs. 7,827 and Rs. 6,922 totalling Rs. 20,178 in Case No. 29. By the aforesaid declarations furnished by them the accused‑appellants undertook to repatriate the proceeds of the consignments through an authorised dealer in foreign exchange, viz. The United Bank of India, Limited, Pabna, within a period of two months from the dates of the respective consignments, but have not actually done so. It is mainly on these allegations that the two accused‑, appellants were called upon to answer a charge under section 23 of the Foreign Exchange Regulation Act for contravention of the provisions of section 4 (3) and 12 of the said Act, as already stated above. It appears that the accused‑appellants did not put forward any substantive defence and only denied the allegations made against them by the ‑prosecution. Ultimately the learned Tribunal on a consideration of the materials placed before him found both the accused‑appellants guilty and accordingly convicted and sentenced them, as already stated above. Hence these appeals.

4. Mr. D. L. Rahman, Advocate, appearing on behalf of the accused‑appellant Muhammad Motahar Hossain Talukdar, has attacked the judgment of the learned Tribunal on the following contentions :‑

(1) That the order of the learned Tribunal directing deposit of costs for summoning D. Ws., and that also without specifying the exact sum to be deposited, amounted to refusal to allow the defence to adduce evidence and that this has seriously prejudiced the accused.

(2) That the I. R. P. 4 forms used in these cases, even according to the prosecution evidence, not having been issued from the United Bank of India Limited. Pabna, and the seals thereon purported to be of the said Bank., admittedly not being genuine i.e., being forged, the conviction of the accused as much as their prosecution on the basis of the alleged declara tions embodied in the said forms is not sustainable in law, and

(3) That the sentences imposed in any view of the matter are disproportionately severe.

5. Mr. A. M. Sayem, Advocate, appearing on behalf of the other accused‑appellant i.e., accused‑appellant Abdur Rab made the following points

(1) That the alleged power of attorney has not been proved to have been executed by his client.

(2) That the prosecution has failed to prove the factum of the alleged non‑repatriation of the proceeds of the exports in question.

(3) That though split up into three cases for the purpose of holding separate trials in order to steer clear of the mischief of misjoinder, there has, in view of the manner in which the proceedings have been conducted, been virtually one trial and that this has seriously prejudiced the accused, and

(4) That his client, i.e., accused‑appellant Abdur Rab, has been seriously prejudiced in as much as a most material piece of evidence forming really the basis of his 'conviction i.e., the power of attorney, said to have been executed by him in favour of the other accused‑appellant was not put to him during his examination under section 342 of the Code of Criminal Procedure and he was not thus afforded an opportunity to explain away the same.

6. It appears that as soon as the accused were examined under section 342 of the Code of Criminal Procedure on the close of the prosecution evidence on 14‑3‑60, they filed a list of witnesses to be called on their behalf. The learned Tribunal thereon passed order that the accused persons should produce their witnesses on the next date fixed but in case summonses were to be issued by the Court they should take necessary steps at once. He also added by way of warning that the accused would be liable for all expenses of witnesses who might not be examined or might be found to be unnecessary. It appears that immediately thereafter tire defence filed a petition for summoning the witnesses cited in the above list through the agency of the Court. The order passed on this petition on the day (14‑3‑60) was as follows :‑

"The accused persons filed a petition for summoning witnesses. The defence of the accused persons has not yet been disclosed and it has not been stated what they want to prove. It appears that the accused persons are trying to delay the disposal of this case and other cases against them and for this they have filed a list of so many witnesses. If they want the Court to secure the attendance of the witnesses they are to deposit at once necessary expenses for payment to those witnesses who are found to be unnecessary or who are not examined. If they fail to deposit such expenses they are to produce their witnesses at their own risk.

7. Mr. Rahman argued that regard being had to the fact that as many as six adjournments were allowed during the period from the 23rd December, 1959 to the 14th March, 1960, in order to enable the prosecution to examine witnesses, there was hardly any occasion or justification for the view taken by the learned Tribunal that the accused were trying to delay the disposal of the cases against them and with that end in view filed a list of so many witnesses when the accused had, in fact, cited the list of their witnesses at the earliest opportunity and the list also contained no more than eight common witnesses only in all the three cases against them. As already indicated above, the accused cited witnesses proposed to be examined on their behalf, as soon as they were examined under section 342 of the Code of Criminal Procedure and thus called upon to enter upon their defence. Again seeing that the list was common to all the three cases and contained no more than eight witnesses including four only from outstations (two from Dacca, one from Chittagong and one from Rangpur), it would indeed be seen difficult to characterise the action of the accused as vexatious or intended to cause delay. The learned Tribunal no doubt observed that the defence of the accused persons bad not till then been disclosed and that it had not also been stated what they wanted to prove. But although the accused persons did not put' forward any substantive defence there could be no question at least with regard to this that the case of the accused was one of denial of the allegations against them which necessarily included denial of execution of the Ammoktarnama said to have been executed by Abdur Rab in favour of Motahar Hossain as well as the agency of the latter on behalf of the former either on the basis of the said document or otherwise. It is quite likely that they wanted to adduce evidence in order to substantiate such denials of theirs. Further according to Mr. Rahman his client also wanted to adduce evidence for the purpose of proving the deed of agreement executed by the other accused‑appellant, i.e., Abdur Rab exonerat ing him from all liabilities in respect of the matter of exports as well as other matters. In any case the learned Tribunal does not appear to have called upon the defence to indicate the purposes for which the witnesses cited in the list were proposed to be examined and as such he had no material or basis at all before him to come to a conclusion that the witnesses have been cited with a view to delaying the trial. The number, too does not appear to be so large as to warrant an inference that the move was a mala fide or obstructive one intended to delay the trial. Nevertheless although the observation, referred to above, may not be quite called for, there is, in my opinion, no scope at all for the argument that the learned Tribunal refused or the order passed by him amounted to a refusal, to summon the witnesses cited by the accused. Under section 257, subsection (2) of the Code of Criminal Procedure a Court trying a case is fully empowered to order that the reasonable expenses required for the attendance of a witness shall be deposited in Court by the person applying for his attendance before the witness is summoned. So the learned Tribunal was legally competent to impress upon the accused that they would be liable for all expenses incurred for calling unnecessary witnesses or to call upon them, as he did in his next following order, already cited above, " to deposit at once necessary expenses for payment to those witnesses who are found to be unnecessary or who are not examined." I cannot pursuade myself to construe this as refusal to summon the witnesses in question nor am I prepared even to regard it as an improper exercise of the discretion vesting in the Court under section 257, subsection (2) of the Code of Criminal Procedure. This, however, does not answer another grievance made by Mr. Rahman by way of an alternative argument in this connection and it is that the order in question requiring deposit of "necessary expenses" was vague and not really capable of being acted upon in as much as the exact amount to be deposited was not specified so that it was not possible for the accused to make the required deposit. In this behalf he has also cited the authority of Gouri Sankar v. Collector of Muzaffarpur (26 Cr. L J 965) wherein it has been held

" A Court ordering a party to deposit the travelling allowance of a witness should state the amount of travelling allowance to be deposited."

The learned counsel, appearing on behalf of the State Bank of Pakistan, on the other hand, argued that on the next date to which the case was adjourned for defence evidence the accused were actually present with witnesses but eventually declined to adduce evidence, and that being so, the complaint of prejudice to the accused resulting from the aforementioned order of the learned Tribunal has no foundation whatever and the defence cannot in fact be heard to put forward any such complaint. In this con nection he has drawn my attention to the learned Tribunal's order dated 22‑2‑60 which is as follows :‑

" Both the accused who were on bail are present in Court with witnesses. But they decline to adduce any evidence. Arguments heard. To 26‑3‑60 for judgment, Accused as before."

8. It has however been pointed out inter alia on behalf of the appellants, that there is no Hazira or other paper on the record showing that some witnesses on behalf of the accused attended Court on that date, and even if so, whether such witnesses included those or any of those, cited in list submitted in Court on the previous date for being summoned through Court. Regard being had to the facts and circumstances disclosed, I find myself unable to hold' that the said cited witnesses were present Circumstances on the record appear rather to point strongly to the contrary. Accordingly it is indeed difficult to brush aside the grievance made on behalf of the appellant that their failure to make the deposit was due to the fact that the exact amount required was not stated and that non‑summoning of the witnesses consequent upon such failure has seriously prejudiced them in that they did not get the opportunity to place their case before the Court, even though the opportunist attitude of the defence in keeping quiet without moving the Court‑to specify the amount also can hardly be viewed with approval or favour.

9. I would now take up the contention urged by Mr. Sayem relating to the examination of his client under section 342 of the Code of Criminal Procedure. His grievance in this behalf is that his client has been seriously prejudiced as a result of the alleged Power‑of‑Attorney not being put to him during the said examination. The prosecution case as already stated at the beginning, is that in the matter of the export transactions in question the accused‑appellant Motahar Hossain acted as the agent of the other appellant on the basis of the Power‑of -Attorney executed by the latter and deposited in the Customs Office at Sirajganj. Such a document was actually proved and admitted into evidence as Exhibit 14 and the learned Tribunal, too, has accepted it as genuine and also relied upon in his judgment for the purpose of connecting the said appellant, i.e., Abdur Rab, with the export business to which these cases relate. Mr. Sayem has, therefore, argued that since this document was really the main basis, or at any rate a most material piece of evidence, on which, his client's conviction is founded, and since his client denies execution of the said document, he ought to have been afforded‑opportunity to offer his explanation in respect of the same and that the omission to afford such opportunity has caused serious prejudice to him. In this behalf he has placed his reliance upon Intaj Mea and others v. The Crown ((1955)7DLR218 ), Abdus Salam Molla v. The Crown (PLD1955 F C 129), Abdul Wahab v. The Crown (P L D 1955 F C 88) and Munawar Ahmad v. The State (P L D 1956 S C (Pak.) 300). Regard being had to the law, as laid down in these authorities, there appears to be no escape from the conclusion that the omission to question the accused appellant Abdur Rab regarding the Power‑of‑Attorney during his examination has resulted in serious prejudice to him. I am not at all impressed with the argument advanced on the other side that even apart from the said document there is a large volume of other evidence to warrant the conviction of the said appellant for this simple reason among others that the Power‑of -Attorney is undoubtedly a most material piece of evidence against him and has actually been relied upon by the learned Court below in convicting him of the charge brought against him.

10. In the circumstances there appears to be no alternative but to send the case back for retrial ; and that being so, it will not be proper for me to enter into a discussion of the other points relating to merit and express or indicate any opinion thereon at this stage.

11. In the result, the appeals are allowed. The orders of the learned Tribunal convicting and sentencing the appellants in all the three cases concerned, i.e. Tribunal Cases Nos. 27, 28 and 29 of 1958, are set aside and the said cases are sent back for retrial and disposal according to the law and in the light of the observations made 'above. The retrial may proceed from the stage of examination under section 342 of the Code of Criminal Procedure, and during further examination thereunder apart from other things, if any, the gist of the prosecution evidence against the appellant Abdur Rab in relation to the Power‑of -Attorney said to be executed by him shall be put to him. The amount required to be deposited in connection with the summoning of the witnesses cited by the accused shall also be specifically stated and the accused given opportunity to deposit the same.

K. B. A.

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