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Criminal Appeal No. 14 of 1961, decided on 5th March 1962.
Ss. 403 & 235(1) Acquittal, after trial, ‑under provisions of Penal Code‑Subsequent trial under provisions of Arms Act (XI of 1878) on same set of facts, not barred in circumstances.
Sambasivam v. Public Prosecutor, Federation of Malaya 54 C W N 695 (P C) fol.
M. A. Aleem for Appellants.
Serajul Haque for the State.
This appeal by Motiur Rahman Sarkar, Mazibur Rahman Shaikh and Mazibur Rabman Sarkar is directed against the conviction of the first two under section 19‑A of the Arms Act with sentence of five years rigorous imprisonment cast (sic) and of the third under section 21 of the said Act with a sentence of rigorous imprisonment for three months and a fine of Rs. 100, in default of payment of which rigorous imprisonment for a further period of one month.
2. The trial was held with tie aid of four assessors one of whom found the appellants not guilty and the other three guilty of the respective charges for which they were tried.
3. It is said that on the 23rd Falgoon, 1366 B. S. correspond ing to 7th March 1960, in the morning P. W: 2 Nezabat Ali Mondal along with his brothers went to cut a koroi tree from a jungle which belongs jointly to Nezabat Ali Mondal and his brother and Mazibur Rahman Sarkar. When P. W. 3 Jesarat Ali Mondal and his brothers began to cut the tree Motiur Rahman Sarkar armed with the gun Exh. 11 belonging to his father Mazibur Rahman Sarkar went there accompanied by Mazibur Rahman Shaikh and began to abuse them. An altercation followed in the course of which Mazibur Rahman Shaikh took the gun from the band of Motiur Rahman Sarkar and shot at Sujabat which resulted in his immediate death. P. W. 2 Nezabat Ali Mondal, snatched away the gun from the hand of Mazibur Rahman Shaikh. In view of these allegations the charge against the first two appellants was that on the 7th March 1960, cor responding to 23rd Falgoon, 1366 B. S. they went armed without any licence or had in their possession S. B. B. L. gun No. T9502 and thereby violated clauses (e) and (f) of section 19 of the Pakistan Arms Act.
4. The charge against Mazibur Rahman Sarkar was that he being the holder and occupier of the gun in question under a licence illegally allowed the said gun to be possessed by the other two accused or omitted to keep the gun in proper and safe custody for which the said other two accused could possess his gun and thereby committed an offence under section 21 of the Arms Act.
5. The defence taken in the case is that the gun at the time of the occurrence was with Mazibur Rahman Sarkar and the complainant party wanted to snatch it away from him and in course of the scuffle the gun went off accidentally hitting Sujabat which resulted in his death.
6. Before we proceed to discuss the merits of this appeal it is worth mentioning that in connection with the occurrence in question before the present trial Mazibur Rahman Shaikh and Mazibur Rahman Sarkar were placed on trial on a charge under section 302 of the Pakistan Penal Code of murder against the former and on a charge under section 302/ 109 for abetment of murder against the latter and were acquitted. They along with others were thereafter placed on trial on a charge under section 148 of the Pakistan Penal Code. They were acquitted but the other accused were convicted under section 147 of the Pakistan Penal Code. This is, therefore, the third trial over the same occurrence and it has been contended that the trial is barred on the principle of pro verities occipital as provided in section 403 of the Code of Criminal Procedure. Subsection (1) of section 403 of the Code of Criminal Procedure provides that a person who has once been tried by a Court of competent jurisdiction For an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against, him might have been made under section 236 or for which he might have been convicted under section 237.
7. The provision in subsection (2), however, is that a person acquitted or convicted or any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him in the former trial under section 235, subsection (1).
8. The question falling to be determined, therefore, is whether the present offence under section 19 of the Arms Act for which the first two appellants have been charged might have been the subject‑matter of charge under the provisions of section 236 cumulatively or alternatively in the said two trials of any one of them. If so, then the present trial of the appellants is barred. If, however, the present offence is a distinct one which could be joined together under section 235, sub‑clause (1) of the Code of Criminal Procedure along with other charges in the previous two trials in view of the fact that this was committed in an occurrence of the same transaction the present trial is not barred. We have no manner of doubt that the present offence falls under the second category and not in the first for the simple reason that there could be no reason for any doubt as to the applicability of the law to the facts of the case which could be proved by the prosecution. On these allegations of fact it was clear that if they were substantiated, the first two appellants would be held guilty one for murder and the other for abetment thereof as well as of rioting with deadly weapon and also being in possession of or going armed with arms guilty of an offence punishable under section 19‑A of the Arms Act.
9. Mr. Aleem has relied in this connection on three decisions reported in 5 D L R (W P) 114, 8 D L R 634 and 54 C W N 695 (P C). In the case of Muhammad Jan and another v. Crown (P L D 1953 Bal. 14) 3 persons were first put on trial for an offence under section 189 of the Pakistan Penal Code and acquitted thereof. They were again tried on the same set of facts under section 353 of the Pakistan Penal Code. The question arose whether the second trial which was sought to be justified by the Public Prosecutor under subsection (2) of section 403 of the Code of Criminal Procedure was barred. Sarkar, J. C. in this connection observed as follows: --‑
"The facts of this case in the original trial indicate that the accused were alleged to have abused a Police Constable and on the evidence on record they were duly acquitted. It is clear to me that on the same set of facts, which is evident from the police reports on record, the police have now endeavoured to challan them once more for an offence falling under the pro visions of section 353/109/34 P. P. C. It is relevant to observe that, in the first instance, when the knowledge of the alleged offence came to the notice of the police authorities, they were at perfect liberty to challan the accused at the first trial by a joinder of charges, if necessary. It is certainly not the intention of the Legislature to allow for the prosecution of the accused persons under one section of the Pakistan Penal Code and if the prosecution fails to allow for a subsequent trial to take place for another alleged offence on the same set of facts."
There is no indication in the judgment as to whether the prosecu tion allegations of fact were totally disbelieved in the first trial. If that was so, then it is correct to say that the defence cannot be called upon to contest the same allegation once again, simply because a different offence is the subject‑matter of the charge. The finding of fact will be res judicata as between the parties. If, however, the acquittal took place on some other ground we with due respect to the learned Judge cannot agree with his con clusion.
10. The facts of the case of Masirali and others v. Abdul Mamith ((1956) 8 D L R 634) are clearly distinguishable. In that case accused were first tried under sections 147 and 379 of the Pakistan Penal Code by a Magistrate and acquitted. The complainant moved the Sessions Judge for making a reference to the High Court for setting aside the order of acquittal, the learned Judge instead of making a reference himself set aside the order and directed the Magistrate to commit the case to the Court of Sessions for trial under section 395 of the Pakistan Penal Code. They were then tried by an Assistant Sessions Judge after commitment on a charge under section 395 of the Pakistan Penal Code and were convicted under section 379 of the Pakistan Penal Code. It is in these circumstances that it was held that as the order of the Sessions Judge setting aside the order of acquittal was without jurisdiction the plea of pro veritate occipiture must be accepted.
11. To distinguish the facts of the case of Sambasivam v. The Public Prosecutor Federation of Malaya (54 C W N 695 (P C)) decided by the Judicial Committee from the facts of this case we need only quote portions of the head‑notes which run thus:
"S, an Indian Tamil Clerk was prosecuted on the allegations that in course of a fight in the street he fired upon and killed a Malayan with a loaded revolver which he was carrying with him. S was tried on two charges, one relating to the carrying of a firearm and the other relating .to the possession of ammunition, by one of the Judges of the Supreme Court of Johore (in Malaya) with assessors, under the Emergency Regulations, 1948. On the second charge the learned Judge having agreed with the assessors' verdict of not guilty, S was acquitted but on the first charge, the learned Judge having disagreed with the assessors' verdict of not guilty, ordered a retrial, acting under section 198(ii) of the Criminal Procedure Code (Malaya). The retrial on the first charge took place with two different assessors and S was found guilty and sentenced to death as under the Regulations, which also permitted trial without a preliminary enquiry On appeal by S, the Court of Appeal dismissed the appeal without calling upon counsel for the prosecution and without pronouncing a reasoned judgment.
On appeal to the Privy Council, it was found that the Court of Appeal did not consider carefully inter alia that the facts proved in support of one charge were clearly relevant to the other and that a statement by the appellant S to the police, made on the day of the affray, on which the prosecution relied if accepted as the truth, went to prove the appellant guilty of the charge of which he had been acquitted as clearly as it proved him guilty of the offence, the subject of the second trial, but it was left to the assessors without any intimation that the prosecution could not ask the Court to accept a substantial part of what it said, since the appellant bad been found not guilty of being in possession of the ammunition and was to be taken as entirely innocent of that offence, and that this omission rendered the trial unsatisfactory in a material respect."
Lord Mac Dermott in course of delivering the opinion of the Board observed as follows :‑
"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res Judicata pro vertitate occipitur is no less ap plicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire‑arms charge is plain, but it undoubtedly reduced in some decree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
12. In the instant case the allegations of fact are that Motiur Rahman Sarkar went with a gun belonging to his father and the gun was taken possession of by Mazibar Rabman Shaikh during the course of a fight between them on the one hand and the complainant party on the other. It is true that the same allegations were made in the previous two trials, the judgments of which have been received by us under section 428 of the Code of Criminal Procedure at the instance of the appellants but we find no finding of this fact in these cases. The acquittals took place on different grounds. Regard being had to these facts it cannot be said that the present trial was barred under section 403 of the Code of Criminal Procedure or on the principle of res judicata A as enunciated by the Privy Council in the last mentioned case. The principle of res judicata does and should apply to criminal proceedings in the same way as to civil proceedings inasmuch as a person cannot be called upon to contest the same question over and over again. But in order that the said principle may apply, the necessary ingredients must be present, one of which is that the same issue which arises in the trial in question was raised and decided in a former trial.
13. Mr. Aleem has raised another objection to the present trial and has questioned its legality on the score of absence of sanction as required under section 19 of the Anus Act. In this case sanction was obtained from proper authority but it appears to us that it was against a wrong person. Section 29 lays down that no proceeding shall be instituted against any person for an offence under section 19, clause (f) of the Arms Act without the previous sanction of the Magistrate of the district concerned. The sanction was asked for and obtained against Mazibur Rahman Sarkar and Motiur Rahman Sarkar. As against Mazibur Rahman Sarkar no sanction was necessary and on a perusal of the petition Exh. 3 (1) there appears to be no doubt that the same was a mistake for Mazibur Rahman Shaikh. Be that as it may, both Motiur Rahman Sarkar and Mazibur Rahman Shaikh were placed on trial for violation of clauses (e) and (f) both. These two clauses contain somewhat overlapping provisions and the latter clause may be construed to provide for a wider offence but both are punishable under section 19‑A of the Arms Act under which section they have been convicted. In that view of the matter, the absence of sanction as against one of them does not vitiate the whole trial and in our view the decisions reported in 38 Cr. L J 1042 and A I R 1947 Cal. 29 on which reliance has been placed by the learned Advocate on behalf of the appellants have no application in the present case. But in the present case the evidence clearly indicates that the above 2 accused have committed an offence under clause (e) of section 19 rather than clause (f) of the said section.
14. The evidence furnished by P. W. 2, Nezabat Ali Mondal, P. W. 3 Jesarat Ali Mondal, P. W. 4 Sadek Ali Mondal, P. W. 5 Khoda Baksha, P. W. 6 Raisuddin Shaikh, P. W. 7 Shaha Ali Shaikh, P. W. 8. Mobarak Ali Mondal and P. W. 9 Jamsher Ali Shaikh shows that Motiur Rahman Sarkar came with the gun Exh. II and it was taken from him by Mazibur Rahman Shaikh which during the scuffle was snatched away by P. W. 2 Nezabat Ali Mondal from his hands. Of these witnesses at least P. W. 7 Shaba Ali Shaikh appears to be absolutely disinterested as he is neither a relation of the complainant party nor is there any suggestion against him for falsely deposing against the accused.
15. The defence has examined two witnesses to prove that the gun was with Mazibur Rahman Sarkar when the occurrence took place. Neither of these two witnesses was produced before the Police. They did not depose in the committing Court nor in the previous two trials. These facts clearly indicate that they have been procured to bolster up a false defence. The learned Judge in rejecting the defence case has made use of the statement under section 342 of the Code of Criminal Procedure made by Motiur Rahman Sarkar wherein he admitted that he went with the gun on a hunting excursion. This piece of evidence must be left out of consideration for the learned Judge's failure to put to Motiur Rahman this admission under section 342 Cr. P. C. in the present case. We, however, on a consideration of the other materials feel no doubt that the gun was taken to the jungle by Motiur Rahman Sarkar and was taken hold of by Mazibur Rahman Shaikh from whose possession P. W. 2 snatched it away. If really Mazibur Rahman Sarkar went with the gun then we cannot persuade ourselves to believe that the complainant party would have implicated his son and another falsely leaving out the real culprit who was their enemy. The first information report in murder case lodged by one Mobarak Hossain Talukdar in which it was stated that Mazibur Rahman Sarkar went with the gun cannot be used as substantive evidence nor for the purpose of contradicting the P. Ws. examined in the case.
16. Mr. Aleem has tried to argue that even if the prosecu tion evidence were to be believed entirely then also Motiur Rahman Sarkar and Mazibur Rahman Sarkar cannot be said to have committed the offence of going armed as mentioned in section 13 and clause (e) of section 19 of the Arms Act. In this connection reliance has been placed on the case of Sonadimuthu Ambalam v. Emperor (A I R 1925 Mad. 585). In this case the conviction of the accused was set aside as in the weapon only empty cartridge was found and it was, therefore, evident that the accused had no intention to use it nor was there any possibility of its being used.
17. In the instant case the gun was loaded with live cartridge which caused the death of a man. The facts of the two decisions reported in I L R 16 All. 276 and I L R 37 Bom. 181 are also distinguishable. The true test to determine the guilt under clause (e) of section 19 of the Arms Act has in our view, been laid down in the case of Manjubhai Gorhandas v. Emperor (A I R 1929 Bom. 283). It has been stated that section 19 (e) does not include the word "habitually" and the words "goes armed" connote carrying a weapon with the intention of using it when the necessity arises. Even an isolated act of carrying a weapon in contravention of the licence would amount to an offence under section 19, clause (e). The prosecution evidence that Motiur Rahman Sarkar went with a gun which was snatched away during the quarrel by Mazibur Rahman Shaikh has been accepted by us. They, therefore, are guilty of an offence under section 19 (e) of the Arms Act as they had the intention of using it if necessity arose. That the licence of the gun was held by Mazibur Rahman Sarkar is admitted and it is nobody's case that the gun was lost. In that view of the matter, once the gun was found in the possession of Motiur Rahman Sarkar or Mazibur Rahman Shaikh in the jungle away from the house of the holder of the licence, the offence of the holder under section 21 of the Arms Act stands established. We are, therefore, of the view that the appellants have been rightly convicted of the respective charges against them.
18. Now coming to the question of sentence we are unable to agree with the learned trial Judge that this case calls for deterrent punishment. In this connection we cannot leave out of consideration the fact that the first two appellants had to face two other trials on the same facts. We feel, therefore, ends of justice will be met if the sentences of Mazibur Rahman Shaikh and Motiur Rahman Sarkar are reduced to the period already undergone, and we accordingly reduce their sentence to the period already undergone. The appellant Mazibur Rahman Shaikh be at once released, if not wanted in any other connection. The appellant Motiur Rahman, who is on bail, is discharged from his bail bond. In the case of Mazibur Rahman Sarkar instead of the sentence of 3 months rigorous imprisonment and a fine of Rs. 100, we feel that ends of justice will be met if he is sentenced to pay a fine of Rs. 300 only, in default of payment of which he will undergo rigorous imprisonment for one month, and we do accordingly.
With this modification of sentence mentioned above the appeal is dismissed.
S. B./A. H.
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