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Ss. 4, 8 (1), (2)---9‑Commissioner, trying cases as Sessions Judge, to follow provisions of Criminal Procedure Code (V of 1898) if not inconsistent with the Regulations‑Criminal Procedure Code (V of 1898), S. 2 (1).

(b) Chittagong Hill Tracts Regulations (1900),

Ss. 18 (2b) & (3), rule 11‑Permission once granted to lawyer to defend entails all privileges under Criminal Procedure Code (V of 1898) including supply of copies of statements before police‑Criminal Procedure Code (V of 1898), S. 162 (1) proviso.

(c) Criminal Procedure Code (V of 1898),

S. 162 (1) proviso & S. 537‑Non‑compliance of proviso to S. 162 (1) may be curable irregularity but Sessions Judge and Public Prosecutor must see that accused's privilege under S. 162 (1) is not prejudiced Defence counsel having access to statements in parts only‑Non compliance with S. 162 (1)‑Here not curable in circumstances of case.

(d) Witness‑Depositions‑

Admissible under S. 288, Criminal Procedure Code (V of 1898) to form part of record‑Evidence Act (I of 1872), S. 145.

Abdul Hamid with Md. Fazlul Karim and Shamsul Huq Chowdhury for the cbndemned prisoner.

Abdul Hakim, ‑Deputy Legal Remembrancer with Abdur Rashid for the State.

This Reference under section 374 of the Code of Criminal Procedure and the connected Appeal No. 374 of 1961 arises out of a trial had under section 302 of the Pakistan Penal Code with respect to an offence of murder said to have been committed in the Chittagong Hill Tracts. The Divisional Commissioner of Chittagong functioned as ex officio Sessions Judge, Chittagong, in this connection. The appellant was tried with the aid of four Assessors, one of whom was of the opinion that he was guilty of murder, another was of the opinion that he was not guilty of murder, while another Assessor had doubts about his guilt and the fourth Assessor gave him the benefit of doubt. The learned Sessions Judge, however, found him guilty and convicted him under section 302 of the Pakistan Penal Code and sentenced him to death and directed that he be hanged by the neck till he was dead.

2. According to the prosecution, on the 8th April 1960, between 4 and 4‑30 p.m. one Syed Ali P. W. 8, while on duty in front of the Fire Station of the Karnaphuli Paper Mill at Chandraghona, saw a contractor of the Paper Mill, namely, Yusuf Khan, running along the road towards the Pathan Colony at the Coal Depot Barrack. Behind him he also saw the accused Ain Khan running in close pursuit of Yusuf Khan and brandishing a dagger at the latter. Yusuf Khan ran for shelter in the nearest quarter of the Coal Depot Barrack, that is, the quarter of one Gul Muhammad Khan P. W. 3 who was at that time away from home but his wife Elonia Begum and mother in‑law Zainab Begum and another lady Sakina Begum were within the house at that time and they saw Yusuf Khan bursting into their room from the front door and rushing out to the back with the accused hotly pursuing him. They saw Ain Khan dealing a blow with his dagger to Yusuf Khan who fell down in the compound and they also saw Ain Khan cutting his throat. The ladies then ran away in terror. Syed Ali from his post at the Fire Station saw through the gaps in the compound fencing of Gul Muhammad's quarter that Ain Khan was on top of Yusuf Khan. Immediately thereafter Ain Khan rushed out of the quarter of Gul Muhammad brandishing the dagger at the people who were coming to the scene, and ran away towards the river. As Ain Khan was making his escape, a neighbour of Gul Muhammad, namely, Abdul Hakim P. W. 10 saw Ain Khan coming out of Gul Muhammad's quarter with his blood‑stained knife. Syed Ali saw the dead body of Yusuf Khan and went to the quarter of the Assistant Inspector of the Security Department, Muhammad Khan P. W. 12. Muhammad Khan then came to the place of occurrence and after that went to the Wagha gate of the Mill to telephone the authorities. In the meantime, Syed Ahmed, another Mill employee, immediately went to Bungalow No. 1 and rang up the Security Officer Mr. S. M. Hussain Zaidi, P. W. 1, to give him this information. After making this phone call he came out of the bungalow and, as he did so saw Ain Khan running towards the senior officers' bungalows. Basarat Ali, P. W. 9, a cook in the quarter of Col. Babar as occupant of Bungalow No. 6, suddenly saw Ain Khan entering through the fencing of the bungalow com pound with a dagger in band, Ain Khan asked Basarat Ali to give him a drink of water. Basarat Ali, feeling very frightened at the terrifying aspect of the accused, quickly went into the kitchen and brought him some water after which Ain Khan ran towards Col. Babar's Bungalow and bolted himself in the bath room. Col. Babar and his family were absent from the Bungalow at that time. In the meantime Mr. Hussain Zaidi informed the armed police post at the Mill gate and also the Administrative Officer of the Mill, Col. Sikandar Khan. Mr. Zaidi and Col. Sikandar proceeded to the place of occurrence and heard what had happened and saw the corpse. They followed in the track of the fugitive accused and, on coming to Col. Babar's Bungalow, heard from Basarat Ali where the accused was hiding. He and Mr. Zaidi entered into the Bungalow. Col. Sikandar went to the bath‑room door and, knocking at the door, asked the accused in Pushtu whether he was going to come out quietly or would offer resistance. The accused came out of the bath‑room and it was found that the shirt and pajama which he was wearing were dripping wet as though they were freshly washed but the chadar which he had with him had blood‑stains on it. Ain Khan while surrendering himself to Col. Sikandar said "I am a Pathan and I have taken revenge. You are also a Pathan, help me." The accused was then taken back to the Coal Depot Barrack and handed over to the police party. Mr. Zaidi then informed the officer‑in‑charge, Chandraghona Police Station, by a letter about what had happened whereupon the latter came and took charge of the case, the accused and various alamats and commenced his investigation. After due investigation and preliminary enquiry accused Ain Khan was placed on trial with the result as stated above.

3. The defence contention was that the accused never committed the crime and he was never found in the bath‑room, that he had enmity with Col. Sikandar who influenced all the witnesses; and that he was innocent.

4. In this appeal the learned counsel Mr. Abdul Hamid has taken the same line of contention as he took on behalf of the appellant before the Court below. He has, however, taken a few more points which, according to him, would show that there was no fair trial according to law and would make out the present case to be one fit for a fresh trial.

5. The learned Deputy Legal Remembrancer, has, in reply, contended that the points taken by the learned counsel for the appellant are not of much significance or substance and they do not justify a retrial. He has, however, been fair enough to concede that if in the opinion of the Court the points taken by the learned counsel for the appellant make out that it is a fit case for a fresh trial, then there is no need for going into merits so far as this appeal is concerned.

6. The points taken by the learned counsel for the appellant are indicated below. His first grievance is that copies of statements made by the witnesses before the police during the investigation under section 161 of the Code of Criminal Procedure were not supplied though prayed for in terms of the proviso to subsection (1) of section 162 of the said Code. His next point is that portions of the depositions of the respective witnesses before the committing Court by reference to which contradic tions were pointed out in terms of section 145 of the Evidence Act, were not made parts of the record of the Sessions Court whereas the learned Sessions Judge himself freely made reference to the lower Court records in his judgment while considering the merits and demerits of the evidence of the respective witnesses. His next grievance is that the statement recorded under section 342 of the Code of Criminal Procedure has not been recorded in accordance with law. His further grievance is that the evidence of Elonia Begum as given before the committing Magistrate has been wrongly admitted into evidence under section 33 of the Evidence Act. He has also made a grievance of the fact that the learned Sessions Judge did not allow his prayer for a local inspection under section 539‑B of the Code of Criminal Procedure.

7. The learned Deputy Legal Remembrancer has joined issue with the learned counsel on all these points.. His first contention is that as the trial was held in a case arising in the Chittagong Hill Tracts area the learned Sessions Judge was not bound in law to follow strictly all the provisions of the Code of Criminal Procedure. His alternative argument was that even if it appeared that the learned Sessions Judge was bound to follow the Code of Criminal Procedure as contended on behalf of the appellant, yet there being no miscarriage of justice and the irregularities pointed out being of a minor nature, they could not be deemed to have vitiated the trial calling for a fresh trial in the circumstances of the case.

8. It appears that the appellant was sent up for trial before the Sessions Court by an order of the committing Magistrate passed on 19‑1‑61. The trial before the Sessions Court actually started on 3‑4‑61. There were several applications put in on behalf of the accused in between these two dates. A petition for copies of the statements made before the police during the investigation was filed on 15‑3‑64, that is, about 18 days before the actual lawyer who filed this petition, filed his power on 3‑4‑61. This petition seems to have been included and kept in the B' file of the records and no formal order seems to have been passed thereon. The learned counsel states before us that on the very first day of the trial he drew the attention of the learned Sessions Judge to this petition and asked for copies as permitted under section 162 of the Code of Criminal Procedure but no such copies were granted. The learned counsel has, however, frankly conceded that during the trial he was at time permitted to look into the original statements made before the police but he could not have the advantage of retaining such statements with him for a thorough perusal and making up his mind as to the detailed nature of the cross- examination of the relevant witnesses that might otherwise be possible if he had been supplied with copies asked for. In fact his grievance is that these documents, though sometimes spared by the learned Public Prosecutor, could not be used entirely to the advantage of the accused. The learned Deputy Legal Remembrancer has in this connection pointed out that there are passages in the depositions of some of the witnesses, which would indicate that the learned counsel for the appellant had access to the original statements as made before the police. The question is whether that by itself, in the circumstances of the case, coupled with other features of the trial, which will be indicated hereafter, could be regarded as enough for avoiding a serious prejudice to the accused appellant.

9. Before further consideration of this question we think it proper to examine the point raised by the learned Deputy Leg31 Remembrancer as to whether the learned Sessions Judge was at all bound in law to follow the provisions of the Code of ‑Criminal Procedure. Section 9 of the Chittagong Hill Tracts Regulation, 1900, seems to have been amended by the East Bengal Regulation No. 1 of 1956 and after such amendment it stands as follows: --‑

"The High Court of East Bengal shall exercise the powers of a High Court for all purposes of the Code of Criminal Procedure, 1898."

The present appeal as also the reference being before this High Court, we have to see as to whether the various provisions of the Code of Criminal Procedure can be said to have been complied with in so far as it was necessary for a proper trial according to law. Section 8(1) of the Chittagong Hill Tracts Regulation, 1900 reads thus: ---

"The Chittagong Hill Tracts shall constitute a sessions division, and the Commissioner shall be the Sessions Judge."

It thus lays down that in suitable cases the Divisional Commissioner of Chittagong has been authorised to function as the Sessions Judge. In subsection (2) of section 8 of the Regulation it is also laid down that as Sessions Judge the Commissioner may take cognizance of any offence as a Court of original jurisdiction without the accused being committed to him by a Magistrate for trial and when so taking cognizance, shall follow the procedure as prescribed by the Code of Criminal Procedure, 1898 for the trial of warrant‑cases by Magistrates Subsection (2) of section 8 thus clearly indicates that even in cases which are not formally sent up for trial by the committing Magistrate, the Commissioner can take cognizance in his capacity as Sessions Judge and try such cases but he is bound for a proper disposal of the case to follow the procedure as prescribed by the Code of Criminal Procedure for the trial of warrant‑cases by Magistrates. The learned Deputy Legal Remembrancer has pointed out that in the present case there having been a formal commitment order by a committing Magistrate, it cannot come within the ambit of subsection (2) of section 8 of the Chittagong Hill Tracts Regulation. The question now is whether it can be said that although in cases the Commissioner as Sessions Judge, while taking cognizance suo motu without a formal reference by the committing Magis trate, is bound to follow the procedure as laid down in the Code of Criminal Procedure, he is also bound to follow the same procedure for the purpose of the trial of a case which has been formally sent up by a committing Magistrate for trial before a Sessions Court. On a reference to section 4 of the Chittagong Hill Tracts Regulation, 1900 it appears that certain enactments have been specified in the schedule and they have been declared to have been in force as indicated therein. The schedule includes, among other enactments, the Penal Code, the Evidence Act and the Code of Criminal Procedure. There is, however, a restrictive clause in section 4(1) of the Regulation in reference to the enactments specified in the schedule. That clause indicates that the enactments specified in the schedule should be deemed to be in force in the Chittagong Hill Tracts in so far as they are not inconsistent with the main Regulation, that is, the Chittagong Hill Tracts Regulation 1900. In sub section (2) of section 4 of the Regulation it has been expressly laid down that no other enactment heretofore or hereafter passed shall be deemed to apply in the Chittagong Hill Tracts subject to certain provisos as contained therein. It thus follows that unless some provisions in the Code of Criminal Procedure appear to be inconsistent with the Regulation, the Code of Criminal Procedure as such should be deemed to be in force in the Chittagong Hill Tracts. Subsection (2) of section 1 of the Code of Criminal Procedure also lays down that "in the absence of any specific provision to the contrary, nothing contained in the; Code of Criminal Procedure shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." Section 5 of the Code of Criminal Procedure may usefully be quoted here :‑

"(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences, under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences"

Section 5(1) as quoted above, clearly indicates that the trial for an offence under section 302 of the Pakistan Penal Code, as in the present case, shall be investigated, inquired into, and tried according to the provisions contained in the Code of Criminal Procedure. The learned Deputy Legal Remembrancer has tried at this stage to point out that there are other restrictive provisions under the Chittagong Hill Tracts Regula tion, which would show that ‑certain provisions of the Code of Criminal Procedure could not be followed as they would be inconsistent with such provisions under the Regulation. In this connection he has referred to Rule 11 framed under section 18(2) of the Chittagong Hill Tracts Regulation, 1900. Rule 11 reads thus :‑

"Legal Practitioners and Agents. No legal practitioners shall be permitted to appear in any matter provided that with the consent of the Commissioner a pleader may appear in Sessions cases and in appeals and revision cases before the Commis sioner where the subject‑matter of such appeals or cases is of the amount or value of Rs. 2,000 or over; and in all cases where the Chiefs are personally concerned, they are, as far as possible, to be personally dealt with. Agents are only to be allowed when the personal presence of the Chief is incon venient or impracticable and they must not be legal practi tioners."

10. The learned counsel for the appellant has contended that this Rule is ultra vires of the Chittagong Hill Tracts Regulation, 1900. Section 18 (2)(b) of the Regulation, however indicates that the Provincial Government may make rules for carrying into effect the objects and purposes of this Regulation and in particular and without prejudice to the generality of such power, the Rules may prohibit, restrict or regulate the appearance of legal practitioners in cases arising in the said Tracts. Subsection (3) of section 18 of the Regulation reads :‑

"All rules made by the Local Government under this section shall be published in the Calcutta Gazette and, on such publication, shall have effect as if enacted by this Regulation."

Reading subsection (2)(b) and subsection (3) of section 18 together, it appears to us that the Provincial Government was quite competent to frame Rule 11 as quoted above. It is difficult for us to accept the contention that the Rule is ultra vires as urged on behalf of the appellant. So far section 340 of the Code of Criminal Procedure, laying down that any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader, is concerned, it has to be read subject to the provision as made in Rule 11 referred to above. But the question is if a lawyer is actually permitted by the learned Sessions Judge to defend an accused can he again be restricted in the discharge of his duties as a lawyer in so far as he thinks it necessary in the interest of his client and in so far as it is otherwise permissible according to law. In our view once the permission is given in terms of Rule 11, the lawyer concerned is free to discharge his duties as such in accordance with law and in this case there was nothing improper or un-authorised on the part of the lawyer to make a prayer for supply of copies of statements before the police as permitted under the proviso to subsection (1) of section 162 of the Code of Criminal Procedure. Reading section 6 with section 9 of the Code of Criminal Procedure it appears that the Legislature, rather the framers of the Chittagong Hill Tracts Regulation, 1900, while including the Code of Criminal Procedure in the schedule, understood the expression "Sessions Judge" as it is understood under the Code of Criminal Procedure. It follows that section 8 (1) of the Chittagong Hill Tracts Regulation, 1900 should be understood by reference to the Code of Criminal Procedure included in the schedule and, as such, for the purpose of a trial of an offence within the meaning of section 5 (1) of the Code of Criminal Procedure all the provisions of the Code of Criminal Procedure, unless any of them appears to be inconsistent with or otherwise controlled by the Regulation or by any Rules made there under, have to be followed. It is difficult to conceive that a Sessions Judge will have to hold a trial free from the obligations as indicated in the Code of Criminal Procedure although such a trial may have to be reviewed by the High Court by reference to the same Code. Section 9 of the Chittagong Hill Tracts Regulation, 1900, as amended, confirms our view that it was the intention of the Legislature that the Commissioner while acting as a Sessions Judge within the meaning of section 8(1) of the Regulation, is bound to follow the provisions of the Code of Criminal Procedure subject to the condition as indicated in C section 4(1) of the said Regulation. We are, therefore, of the opinion that the contention of the learned Deputy Legal Remem brances that the Sessions Judge was not bound in law to follow strictly the provisions of the Code of Criminal Procedure while holding the trial under section 302 of the Pakistan Penal Code, has got no substance.

11. The learned Deputy Legal Remembrancer has pointed out that there is nothing on record to show that the petition asking for supply of copies of statements made before the police as made on 15‑3‑61 was actually mentioned or moved before the Sessions Court on 3‑4‑61 or at any other material time. He has, therefore, contended that virtually speaking no request was made in terms of the proviso to subsection (1) of section 162 of the Code of Criminal Procedure. It being not disputed that no copy was supplied and it being not further disputed that the petition was lying in the records without any formal orders passed thereon, it is difficult to conceive as to how it could be said, particularly in the light of the statement made by the learned counsel for the appellant before us, that there was no request made for copies of such statements. There is no order indicating that this petition was not pressed. It is not expected of the accused to explain as to why this petition was lying in the B' file as an un-disposed of matter. On the other hand in our view it was the duty of the prosecution to show that every thing was done in a fair manner without any likelihood of a prejudice to the accused. It is more or less a common affair in trials held like this that the accused party would ask for copies of statements made before the investigating officer. The learned Sessions Judge ought to have given some importance to a matter like this and it was the duty of the Public Prosecutor as well to avoid such irregularities that might somehow or other caused any prejudice, whether serious or minor, to the accused. In, order to ensure a fair trial the Legislature has thought it proper to add the proviso to subsection (1) of section 162 of the Code of Criminal Procedure. Although non‑compliance of such provisions in certain cases may be curable as an irregularity, within the meaning of section 537 of the Code of Criminal Procedure, yet in our opinion it is the duty of the learned Sessions Judge as also of the learned Public Prosecutor to se that nothing unfair or prejudicial happens in regard to the privilege given to the accused under this proviso.

12. The learned Deputy Legal Remembrancer has submitted that the contents of such statements must have been disclosed to the defence lawyer as otherwise it was not possible for him to put questions to certain witnesses touching the points contained in the statements made before the police. There is nothing on record to show in the shape of a formal order or an endorsement by the learned Judge that as a substitute for copies or as an alternative measure privilege was extended to the defence lawyer to look into the original statements to his satisfaction. If merely as a courtesy some parts at times have been disclosed without enabling the defence lawyer or the accused concerned to marshal his case for the purpose of cross‑examination in the light of such statements, we do not think it can be said that c there was a sufficient compliance with the requirement of law as indicated in the proviso. Our view gets all the more confirmed when reference is made to certain parts of the deposition of the investigating officer P. W. 15 Nur Ahmed Chowdhury who says "Syed Ali said that he saw Kamal Khan chasing the accused and also previously standing to the south of the house of Gul Muhammad." It is difficult for us to reconcile the idea that a sensible lawyer worth the name, if in possession of the relevant part of the statement made before the police, would rest content with a circuitous explanation given by the witnesses concerned in regard to the possible incrimination or criminality of Kamal Khan as suggested on behalf of the defence. Scanty references to the statements made before the police cannot be regarded as adequate in the circumstances of the case, particularly in view of the offence with which the accused was charged. In our view proper facility in the matter of access to the original statements or availability of the copy as provided in the proviso to subsection (1) of section 162 of the Code of. Criminal Procedure 1 was not given to the accused in the present case and this had caused serious prejudice to the appellant in placing before the Court all possible aspects of the case including the line of defence that might have been taken on behalf of the accused. As observed by the Privy Council in the case of Pulukuri Kotayya and others v. King Emperor (L R 74 I A 65 at page 74)

"The right given to an accused person by this section is a very valuable one and often provides important material for cross‑examination of the prosecution witnesses. However slender the material for cross‑examination may seem to be; it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence; and in the present case it has to be remembered that the accused's contention was that the prosecution witnesses were false witnesses."

In view of the defence theory that the prosecution witnesses were false witnesses acting under conspiracy, it was all the more necessary to give the facilities provided in this section to the accused. The decision of the Privy Council as referred to above, has been quoted with approval by our Supreme Court in the case of Fafz Ahmad v. The State (P L D 1960 S C 8), where it was indicated that the right course for the learned Judges would have been either to order a retrial if they found that the irregularity had occasioned a failure of justice or to recall the approver, supply a copy of his statement to the defence counsel and direct him to cross- examine the approver". In that case the Supreme Court found it possible to exclude the evidence of the approver concerned and to dispose of the case on other evidence on record; but the principle laid down, as indicated above, in our view stands well applicable to the facts of the present case. We, for our satisfaction, allowed the learned counsel for the appellant to make reference to the relevant statements of the witnesses made before the police and make his comments accordingly; but he pointed out, and the learned Deputy Legal Remembrancer could not differ from him, that such a course at this stage adopted, in regard to most of the witnesses, would be most disadvantageous and undesirable because in that case his only submission would be that all such witnesses who made statements before the police and also appeared before the Court of Sessions for examination and cross‑examination should be excluded and in that case there would practically be nothing upon which the case could be fairly disposed of. Considering all these difficulties we find it impossible to dispose of the case after excluding the evidence of so many witnesses such as P. Ws. 1, 4, 5, 8, 9, 10 and 11 or treating the relevant points unexplained in view of such irregularities. We have, therefore, been constrained to take the view that the prejudice as caused in this manner is a serious one and there has been a failure of justice in this regard so far as the accused is concerned.

13. With regard to the question as to whether any prejudice can be said to have been caused for not bringing upon on the record of the Court of Sessions the depositions, or parts thereof, of some of the witnesses as given before the committing Magis trate, it appears that some petitions were filed on behalf of the accused asking the Court to admit the relevant depositions or parts thereof for use in terms of section 145 of the Evidence Act. There is, however, indication in some of the petitions dated 5‑4‑61 and 19‑7‑61 that a kind of confused prayer was made as to whether such' depositions should be taken in or brought up on the record as under section 288 of the Code of Criminal Procedure. In the petition dated 5‑4‑61 it has been stated :‑

"That during cross‑examination P. W. 8 Syed Ali the provisions of section 145 of Evidence Act were complied with that the deposition of the witness before the committing Magistrate is being contradictory of his evidence at the trial."

It has next been stated :‑

"That it is necessary that the evidence given by the witness before committing Magistrate be admitted under section 288 Cr. P. C."

The prayer was in the following terms: --‑

"It is therefore humbly prayed that your honour would be pleased to admit the evidence as prayed for in the interest of justice ...............

The learned Sessions Judge has endorsed on the body of this petition an order to this effect :‑

"Depositions before the committing Magistrate, will be taken into account only under section 288 Cr. P. C. wherever it is applicable."

It is difficult for us to follow how the petition was intended to be disposed of by the learned Sessions Judge. It has been specifically stated in the petition, and it is not challenged, that while cross‑examining P. W. 8 Syed Ali provisions of section 145 of the Evidence Act were complied with by reference to the deposition of the same witness before the committing Magistrate. It was, therefore, the clear duty of the learned Sessions Judge to mark out the relevant portions and bring them on record of the Court of Sessions for their legal use.

14. The learned Deputy Legal Remembrancer has, however, contended that in view of the statement in paragraph 2 of the petition stating that it was necessary that the evidence should be admitted under section 288 of the Code of Criminal Procedure, the learned Sessions Judge could not make any order unless in regard to each of such deposition formalities as under section 145 of the Evidence Act were complied with. In other words, the contention of the learned Deputy Legal Remembrancer was that in order to get the benefit of section 288 of the Code of Criminal Procedure and to have the depositions before the committing Court included as part of the records of the Court of Sessions, the discretion of the learned Sessions Judge could not be regarded as unfettered inasmuch as the admission of such record under section 288 of the Code of Criminal Procedure was dependent upon compliance with the provisions of section 145 of the Evidence Act. His further contention was that there being nothing to show that formal compliance with the provision of section 145 of the Evidence Act was made in regard to all the depositions asked for, the learned Sessions Judge was in no way wrong in failing to bring up such records into those of the Court of Sessions.

15. The Learned Deputy Legal Remembrancer in this connection has relied upon a decision of the Lahore High Court in the case of Fateh Beg and another v. Crown. (P L D 1952 Lah. 275). The learned Deputy Legal Remembrancer, however, does not contend that if the depositions before the committing Magistrate were other wise admissible, they could be kept outside the records of the Court of Sessions. In view of the decision in the case of The Emperor v. Molla Khan Kabulf alias Hamidulla and others (37 C W N 1061); we are of the opinion that the deposition, if otherwise admissible under section 288 of the Code of Criminal Procedure, ought K to have formed part of the record. The question, however, is, as raised by the learned Deputy Legal Remembrancer, as to whether in the circumstances of the case it could be said that without formal compliance with section 145 of the Evidence Act, these depositions could at all be admitted under section 288 of the Code of Criminal Procedure. In the case of Fateh Beg and another v. Crown, this question came up for consideration, and it was observed that there were divergent views in respect of the same but mainly relying upon a decision of the Supreme Court of India in the case of Tara Singh v. The State (A I R 1951 S C 441), it was held in that case that as the procedure laid down in section 145 of the Evidence Act was not followed by the learned Sessions Judge, the previous depositions of the witnesses should not have been treated as evidence in that case. It was also added that it was desirable that the provisions of section 145 of the Evidence Act should have been followed and that such a course should always be adopted in fairness to the accused as well as to the witness concerned.

16. In another decision of the same Court in the case of Mohammed Sarwar v. Emperor (A I R 1942 Lah. 215), a contrary view was taken but the learned Judges in the case reported in P L D 1952 Lah. 275 differed from that view and held as stated above. In the case of Mohammed Sarwar v. Emperor, it was held that under section 288 of the Code of Criminal Procedure the Sessions Judge had an absolute discretion to transfer statement made before the committing Magistrate to his own record and the statement so transferred was evidence in the case for all purposes without limitation. The case as reported in A I R 1951 S C 441, did not come into existence while this case was considered. On a further scrutiny it, however, appears that the Supreme Court case of India was decided on various considerations with some reference to some observations of the Privy Council in the case of Bal Gangadhar Tilak and others v. Shriniwas Pandit and another (R 42 1 A 135). The Supreme Court of India has observed in that case that there are two lines of reasoning in this connection. But it was held that the proper course was to follow the provisions of section 145 of the Evidence Act before the document in question could be admitted into evidence under section 288 of the Code of Criminal Procedure. It was also observed. "In my opinion the second line of reasoning is to be preferred. There is no reason why section 145 of the Evidence Act, should be excluded when section 288 of the Code of Criminal Procedure states that the previous statements are to be subject to the provisions of the Indian Evidence Act. Section 145 of the Evidence Act falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accord with the sense of fairplay to which Courts are accustomed." These observations of the Supreme Court of India seem to have influenced the learned Judges who gave the decision in the case of Fateh Beg and another v. Crown, but the basic consideration upon which the Supreme Court of India seems to have held this kind of view appears to be the observation of the Privy Council as made in the case of Bal Gangadhar Tilak and others v. Shriniwas Pandit and another. That case, however, was a case of civil nature and although questions affecting section 145 of the Evidence Act in relation to a document on the question of adoption for consideration before their Lordships of the Privy Council, yet no question affecting section 288 of the Code of Criminal Procedure was before them. It is very difficult, there fore, for us to follow the reasoning of the Supreme Court of India and with all respect we cannot but think that the season ings given by the learned Judges in the case of Mohammed Serwar v. Emperor, seem to us to be more cogent, convincing and sound. The learned Judges also relied upon certain observations of the Privy Council in the case of Fakirs and others v. King Emperor (L R 641 A 148, 155). The contention as advanced before the Judicial Committee was considered and disposed of in the following manner:

"The only objection taken by them was to maintain that the deposition, when admitted under section 288, could only be used for the purpose of cross‑examination within the provisions of section 145 of the Evidence Act. But this contention is clearly untenable in view of the express provision of section 288 of the Code that it is to be treated as evidence in the case for all purposes; the words subject to the provisions of the Indian Evidence Act, 1872 cannot be read so as to limit the purposes for which it may be used."

Although the learned Judges in the case reported in P L D 1952 Lah. 275 have not followed the reasoning of the Privy Council as indicated above, yet we do not see as to why the plain and broad construction placed upon the language of section 288 of the Code of Criminal Procedure by the Privy Council should not be kept in view for our guidance. We are, therefore, of the opinion that the discretion of the learned Sessions Judge while considering the desirability of treating as evidence the deposition of a witness duly recorded under Chapter XVIII, when such witness is produced and examined before him, is wide enough as not to be circumscribed by the limitation or consideration of section 145 of the Evidence Act as urged. It is true that when such evidence is sought to be treated as part of the record of the Court of Sessions only for the purpose of contradiction as indicated in section 145 of the Evidence Act, then it is a case purely within the ambit of that section and as such it cannot but be treated as one under section 145 of the Evidence Act. In that case there may not be any scope for invoking the aid of section 288 of the Code of Criminal Procedure. As pointed out in the case of The crown v. Mangal Khan ((1954) 6 D L R 490), if it is intended to use the relevant portion of the deposition only for the purpose of contradiction then the procedure as under section 145 of the Evidence Act should be followed and if on the other band, "where a witness resiles entirely or to a great extent from his previous statement or where he has forgotten a great deal of what he said previously," the discretion under section 288 of the Code of Criminal Procedure should be exercised. The line of distinction, as indicated in this case may serve as a piece of guidance in matters affecting section 288 of the Code of Criminal Procedure, but it is difficult to hold or accept the contention of the learned Deputy Legal Remembrancer that compliance with section 145 of the Evidence Act is a condition precedent to the exercise of the discretion vested in the Sessions Judge under section 288 of the Code of Criminal Procedure. We are, therefore, of the opinion that upon the petitions as made on behalf of the accused for marking out portions of the depositions of the relevant witnesses under section 145 of the Evidence Act or for treating the evidence of a witness, who was actually produced and examined before the Court of Sessions, under section 288 of the Code of Criminal Procedure, the learned Sessions Judge ought to have transferred the relevant depositions or parts thereof for the purpose of section 288 of the Code of Criminal Procedure or section 145 of the Evidence Act according as the circumstances required. It is true that some of the relevant petitions were filed a bit late but this could be remedied if the learned Sessions Judge were so inclined.

17. It is curious to find in this connection that the learned Sessions Judge has himself referred to the evidence given before the committing Magistrate not only for the purpose of contradic tion but also for the purpose of corroboration in regard to some features of the case. It is difficult for us to conceive how this could be done without bringing those parts of the records before the committing Magistrate to the records of the Court of Sessions and without giving facilities to the defence lawyer or others interested in the case to make their submissions by reference to them after admission according to law. The learned Deputy Legal Remembrancer has contended in this connection that, in view of section 167 of the Evidence Act, documents or evidence which appear to have been wrongly taken into con sideration could be excluded and upon the rest of the materials the trial could be reviewed and according to him, the conviction could be maintained. We are, however, unable to give a practical shape to this kind of submission. References to the depositions before the committing Magistrate have been so many and frequent and improper considerations in that manner have been so considerable that if we make an attempt to dispose of the case upon the materials after exclusion of such evidence, it will be more or less an impossible task for us to have anything or any material for our consideration for a proper disposal of the case. It is true that the Privy Council in the case of Abdul Rahim v. The King Emperor (50 C W N 692), has observed that such a course under section 167 of the Code of Criminal Procedure is desirable in certain cases; it is equally true that this Court has also taken a similar view in the case of Azharuddin v. The Crown (2 D L R 380), but for the reasons indicated above we find ourselves unable to make any practical approach in the line as suggested by the learned Deputy Legal Remembrancer. It may be noted in this connection that if the portions of the depositions which ought to have been marked at least for the purpose of section 145 of the Evidence Act are excluded, the accused is sure to be prejudiced. During the hearing of this case there was a suggestion that the irregularity, if any, might be obviated if typed copies of depositions of the witnesses before the committing Magistrate were made parts of the printed paper book and supplied to the parties concerned; but that course also appeared to be practically impossible at this stage for the reasons indicated above.

18. The learned counsel for the appellant has drawn our attention to the irregularities in regard to the statement recorded under section 342 of the Code of Criminal Procedure. The learned Deputy Legal Remembrancer has very vehemently contested the proposition of the learned counsel for the appellant that any prejudice was caused or could be said to have been caused in that connection. As indicated above the learned Sessions Judge was bound to follow the provisions of the Code of Criminal Procedure and there being no bar on the score of section 4(1) of the Chittagong Hill Tracts Regulation, 1900 we are of the opinion that the learned Sessions Judge was bound to follow the procedure as required under., section 342 of the Code of Criminal Procedure and other provisions including sections 361 and 364 of the Code of Criminal Procedure. The accused in the present case is a Pushtu‑speaking inhabitant of the district of Mardan in the North‑West Frontier part of Pakistan. There is no evidence that he knows much of Urdu or any other language. It is not disputed that he is an illiterate man and as such he affixed his thumb‑impression to the state ment recorded under section 342 of the Code of Criminal Procedure. It seems the examination of the accused was taken in Urdu and the learned Public Prosecutor acted as the Interpreter. Apart from the fact that it was not desirable that the Public Prosecutor should figure in the roll of an Interpreter for a purpose like this, it is patently clear that the questions were not put to the accused in Pushtu which is the language understood by him. The learned Deputy Legal Remembrancer has drawn our attention to the possibility of the accused knowing Urdu by reference to the answers recorded in the statement under section 342 of the Code of Criminal Procedure. In our view it is the intelligibility of the question as formulated and put that should be kept in view and not the answers as recorded in the peculiar circumstances of the present case.

The second question has been put in this way: ‑

Why have P. Ws. Sayed Ahmed, Abdul Hakim specifically accused you of the murder "

Answer to the question referred to above has been recorded in the following manner :‑

‑I have only one set of clothes. They were not bloodstained. Those witnesses have had altercation with me over fuel and other matters and so, are not well disposed towards me."

This question as a whole was apparently wrong because P. W. Syed Ali might have given direct evidence with regard to murder; but P. Ws. Syed Ahmed and P. W. Abdul Hakim merely purported to give some circumstantial evidence and no direct evidence. Nothing has been pointed out as to which part of the depositions made out the incriminating circumstances important or material enough to be brought to the notice of the accused for explanation. Apart from that, the depositions or the relevant part of the evidence of these witnesses have been put in a lump and it passes our comprehension how the underly ing points could be intelligible to the accused when the evidence pf three important witnesses were lumped together and put to him for explanation. It also appears from the questions for the purpose of the statement under section 342 of the Code of Criminal Procedure that the accused has been more or less sought to be cross‑examined rather than expected to give an explanation. The answer as quoted above does not disclose clearly as to whether it was relevant one keeping in view the nature of the question.

19. There are other questions and answers which do not carry a very happy impression. It has been observed in the decision in the case of Abdul Waha6 v. The Crown (P L D 1955 F C 88), as follows :‑

Where, while examining the accused under section 342 the circumstances appearing in evidence against him' are not put to him and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been ful filled ......

"The real object of section 342 is not to subject the accused to a detailed cross‑examination. It is, as a matter of fact, inviting the attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any."

20. The learned Deputy Legal Remembrancer has submitted in this connection that no objection was taken as to the use of Urdu Language made for this purpose in connection with the trial. He has also submitted that no serious prejudice can be said to have been committed by the manner of questions put to the accused for the purpose of the statement under section 342 of the Code of Criminal Procedure. For the reasons indicated above we are unable to agree with the learned Deputy Legal Remembrancer that no serious prejudice can be said to have been caused or that the requirements of section 342 of the Code of Criminal Procedure have been complied with or fulfilled.

21. As to the question of interpretation it was the clear duty of the learned Judge to keep in view the provisions of section 361 of the Code of Criminal Procedure apart from that of section 360 of the Code which substantially refers to the witnesses examined in the case; but the statement under section 342 of the Code of Criminal Procedure in our opinion should be treated as a piece of evidence for what it is worth. It may have a very restrictive scope of evidentiary value but all the same it cannot but be treated as a piece of evidence; and according to section 361 of the Code of Criminal Procedure the law requires that whenever evidence is given in a language not understood by an accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him. As we have already observed that the accused was a Pushtu‑speaking man, the presumption was that was the language understood by him. There is nothing to indicate that Pushtu language was used in course of the trial. Apart from the undesirability of taking the services of the Public Prosecutor for the purpose of interpretation, we are constrained to find that the course of the trial was held in a manner which might be intelligible to the learned Sessions Judge and to the learned lawyers but it is doubtful whether it was so intelligible to the accused concerned as indicated in the scheme of the Code of Criminal Procedure. We are, therefore, of the opinion that apart from other considerations there was serious prejudice caused to the accused for want of proper recording of the statement under section 342 of the Code of Criminal Procedure. There is nothing to show as required under section 364 of the Code of Criminal Procedure that the statement so recorded was shown or read to him or interpreted in the language, namely, Pushtu, which he understood.

22. The learned counsel has raised a few more points. We, however, think that in view of the order we propose to make it will not be necessary at this stage to express our views either on the merits of the case or on the other points raised by the learned counsel. The question as to whether the evidence of Elonia Begum can be said to be properly admitted into evidence under section 33 of the Evidence Act, may be con sidered in the light of the circumstances as may be revealed when the retrial we propose to order actually takes place. The further question as to the desirability of a local inspection under section 539‑B may be considered by the learned Sessions Judge on merits at the appropriate stage if any request is again made in that behalf. The other question as to whether some of the material witnesses have been withheld does not also in our view call for any consideration at this stage.

23. For all these reasons we are inclined to think that the irregularities indicated above have resulted in a serious prejudice to the accused and they cannot be cured in the circumstance of the case merely under section 537 of the Code of Criminal Procedure. In our view the trial has not been held according to law.

The result, therefore, is that this Reference is rejected and the appeal is allowed. The conviction and sentence as passed on the appellant are set aside and the case is remanded to the Court of the learned Sessions Judge for a fresh trial according to law. The accused Ain Khan, however, will remain in custody pending the trial before the Sessions Court.

S.B./A. H.

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