Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: LAL MOHAMMAD SARDAR VS Respondent: THE STATE
P L D 1960 Dacca 931
P L D 1960 Dacca 931
Before Rahman, J
LAL MOHAMMAD SARDAR AND ANOTHER‑Appellants
versus
THE STATE‑Respondent
Appeals Nos. 467 and 471 of 1958, decided on 27th February 1959.
(a) Criminal Procedure Code (V of 1898), S. 239‑Enabling section‑Merely vests discretion in Court to hold joint trial of offences fulfilling given conditions‑Joint trial should not be resorted to where it is likely to embarrass accused.
Section 239 of the Criminal Procedure Code 1898, is merely an enabling section. It does not say that whenever offences of the kinds mentioned in that section come to be tried, they must be tried together. This section merely vests a discretion in the Court to try such offences jointly. The exercise' of such discre tion must, therefore, be based on sound judicial principles and in any case where such a joint trial is likely to embarrass the accused persons, it should not be resorted to. Where, therefore, the principal offender and the abettor had been jointly tried and during toe course of the trial they appeared to have been out to harm each other as much as possible and the cross‑examination conducted on their behalf seemed designed to throw blame by one on the other, it was held, that the' joint trial of those two persons could not have been fair. Further, it was held that in such cases on a consideration of the circumstances, the High Court had, on appeal, power to hold that the accused should not have been tried jointly and then to set aside the convic tion and sentence.
Dwarka Singh and another v. Emperor A I R 1915 Cal. 743 and Rash Behari Shaw (Handa) and others v. Emperor A I R 1936 Cal. 753 rel.
(b) Criminal Law (Amendment) Act (XL of 1958), Ss. 3 & 6 Recording evidence of witness‑Special Judge should follow provi sions of S. 356, Cr. P. C., 1898‑S. 356 (3), Cr. P. C., applicable only where evidence has not been personally recorded by Presiding Officer of Court.
Under the Pakistan Criminal Law (Amendment) Act, 1958, the provisions of the Criminal Procedure Code, 1898, except those contained in Chapter XXXVIII of the said Code, are made applicable to proceedings under the said Act and the Court of the Special Judge is deemed to be a Court of session trying cases without the aid of assessors or a jury. Hence in recording the evidence of witnesses the Special Judge must comply with the provisions of section 356 of the Code. The provisions of the first subsection of section 356 of the Code are imperative and sub section (3) of the said section applies only where the evidence has not been personally recorded by the Presiding Officer of the Court.
Failure to make a proper record was " unpardonable " and the High Court ordered a re‑trial.
Sadananda Mandal v. Krishna Mandal I L R 42 Cal. 381 ref. A. M. Sayem and M. Fazlul Karinz for Appellant in Appeal No. 467. Syed A. Ghani for Appellant in Appeal No. 471. M. Fazlul Huq for the State.
JUDGMENT
These two appeals are by two accused persons who were tried jointly with one other person on charges under sections 406 and 406/109 of the Pakistan Penal Code. The third person has been acquitted by the learned Special Judge of Rajshahi but the two appellants before me have been convicted.
2. The appellant in Criminal Appeal No. 471 of 1958, has been convicted under section 406 of the 'Pakistan Penal Code and sentenced to suffer rigorous imprisonment for three months, as also to pay a fine of Rs. 500 or, in default, to suffer, further rigorous imprisonment for another three months.
3. The appellant in Criminal Appeal No. 467 , of 1958, has been convicted under sections 406/109 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for two months, as also to pay a fine of Rs. 300 or, in default, to suffer rigorous imprisonment for one month more.
4. The two appellants were Presidents of Raigaon Union Board within the jurisdiction of P. S. Mahadevpur: The appellant in Criminal Appeal No. 471 of 1958, Taibuddin Ahmed, was the President for the years 1354‑55 B. S. and the appellant in Criminal Appeal No. 467 of 1958, Lal Mohammad Sardar, succeeded him in 1355 B. S. as such President and continued to be the President uptil 1358 B. S.
5. It appears that during the presidentship of the said Taibuddin Ahmed the Union Board on 26‑9‑54 B. S. passed a resolution adopting its budget for the year 1355 B. S. in which a provision was also made for sinking of a ring well in the Kundana Purbapara within the said Union. That was the para in which the said Taibuddin Ahmed used to reside. For this purpose, on the 31st of Chaitra, 1355 B. S., a sum of Rs. 100 was actually advanced to the acquitted accused Didar Bax as per Voucher No. 55 (Exh. 3) for the purchase of cement rings for the said well and a corresponding entry was also made in the Register of the Union Board, Exh. 2 . (1). The cement rings were not, however, purchased at that time and it was only on the 19th of Chaitra, 1356 B.S, after appellant Taibuddin had gone out of office and appellant Lal Muhammad Sardar had assumed office as President of the Union Board that 20 cement rings were purchased from one Kaluuddin as per receipt, Exh. 5 (1). According to the practice of the Union Board, after the purchase had been made, the amount was shown as refunded by the said Didar Bax and re‑issued to him on the basis of the receipt, Exh. 5 (1), which was also marked as Voucher No. 56. Corresponding entries were also made in the relevant Registers of the Union Board showing the refund and the re‑issue of the money. These entries were made by the clerks of the Union Board according to the instructions of appellant Lal Mohammad Sardar. But the rings were carried to the house of appellant Taibuddin Ahmed and there stored.
6. Thereafter, again nothing happened for about two years. But it is alleged that in Chaitra, 1358 B. S., appellant Taibuddin Ahmed wrongly converted the said cement rings entrust ed to him as aforesaid and constructed a ring well in his own compound at a place which was fenced in by him.
7. This fact was, however, not reported to any appropriate authority until same time in Magh, 1363 B. S., when the com plainant, Kalinnuddin Mondal (P. W.1), filed a petition of com plaint before Anti‑Corruption Branch Inspector Saiful Islam, P. W. 12, alleging that the said Didar Bax had misappropriated a sum of Rs. 100 belonging to the said Union Board.
8. On receipt of this petition, the Anti‑Corruption Branch began to take steps. Under the orders of the Deputy Superin tendent of Police of the said Anti‑Corruption Branch, Rajshahi, a preliminary enquiry was held and then, on the basis of the report made by the officer holding the inquiry, a case was started treating the original petition of complaint, Exh. 4, filed by P. 6'V. 1, as the first information report. The case was duly investigated by P. W. 12 Saiful Islam. The necessary sanction for the prosecution of these persons was obtained and ultimately a charge‑sheet was submitted on the 4th of July 1958, against the two appellants and the said Didar Bax. The appellant Taibuddin Ahmed, as already stated, was charged under section 406 of the Pakistan Penal Cc de for dishonest misappro priation of the said 20 cement rings. The other two accused persons were charged with having aided and abetted the said appellant Taibuddin Ahmed in the commission of the said offence by wilfully suffering the said accused to commit the offence of criminal breach of trust.
9. At the trial, these two appellants appeared to have raised conflicting defences. Appellant Taibuddin Ahmed denied that he had committed any misappropriation or criminal breach of trust, for, according to him, the money had been refunded after he had ceased to be the President of the Union Board and it was appellant Lal Muhammad Sardar who had the money re‑issued under his own directions to the said Didar Bax and that the cement rings were still lying in the house of the said Lal Mohammad Saadar.
10. Lal Mohammad Sardar, on the other hand, denied that he had in any way abetted the appellant Taibuddin Ahmed and charged that the appellant Tuibuddin Ahmed bad, in fact, constructed a ring well within his own compound by using the said cement rings which were stored in his house. In connection with this he also claimed that he had actually held a salish and asked appellant Taibuddin to remove the fencing and allow the public to use the well. The other accused Didar Bax also denied to have abetted any offence of the kind alleged.
11. At the trial, the prosecution examined some nine wit nesses and tendered another four for cross‑examination but they were not cross‑examined by the defence.
12. The first witness was the complainant himself who claimed that he was the Vice‑President of the Board, in 1354‑55, B. S., under appellant Taibuddin Ahmed. He is said to have proved the relevant resolution of the 26th Magh, 1354 B. S., Exh. 1, as also the advance payment as per Voucher No. 55, Exh. 3, to the accused Didar Bax and the relevant entries in the Register of the Union Board, Exh. 2. He maintained that no such ring well had, however, been sunk at Kundana Purbapara or any other part of the village Kundana, although, according to him, he saw some rings in Chaitra, 1356 B. S., lying in the khola of appel lant Taibuddin who, on being asked, stated that the rings were purchased by the Board. In 1358 B. S., however, he saw that Taibuddin had made a ring well in his own house with those very rings and, in these circumstances, when the people of the village did not take any action, he lodged the complaint, Exh. 4.
13. From his cross‑examination, however, it was elicited that he had considerable enmity with appellant Taibuddin. Taibuddin deposed against him in a bad‑livelihood case some 19 or 20 years ago and the witness deposed against Taibuddin in two cases, about a month before, in which the said Taibuddin had been acquitted. On behalf of appellant Lai Mohammad Sardar, he was asked to specify the exact place where the ring well was situated and he stated that it was situated in the north‑eastern side of the inner bari of appellant Taibuddin. He also stated in his cross‑examination, directed on behalf of the said Lai Muhammad Sardar, that he reported about the sinking of this well and asked the people to take some action before he filed the petition of complaint. But the people of the village did not do so. He denied, however, the suggestion that there was ever any salish held over the matter or that it was settled at the salish that appellant Taibuddin would remove the fencing and make the ring well available for public use.
14. P. W. 2 is Kalauddin who claimed that he was a maker of cement rings and had sold 20 rings to a person called Didar Bax by a receipt, Exh. 5. These rings were, according to him, taken away on the same date when the price was paid and the receipt was granted. The receipt he claimed was actually written by appellant, Taibuddin. He, however, could not identify the accused Dtdar Bax but he identified appellant Taibuddin as the writer of the receipt, Exh. 5 (I).
15. P. W. 3 is another resident of Kundana who plies bullock carts. He stated that in 1356 B. S. he along with P. W. 4 and two others carried 20 cement rings in four bullock carts from the shop of P. W. 2 Kalauddin to the house of appellant Taibuddin at the request of the latter and kept the rings in his khola. At that time, appellant Taibuddin told them that a ring well would be made with those rings. Those rings remained there for about two years and then appellant Taibuddin made the well in his own house with those rings. In cross‑examination, he further stated that he received no hire charge nor demanded any, as appellant Taibuddin had told them that the rings would be used for a ring well to be made by the Union Board. This witness, too, deposed against appellant Taibuddin in the criminal case in which he was acquitted about a month before this. He was not at all cross -examined on behalf of appellant Lai Muhammad Sardar.
16. P. W. 4, a neighbour of P. W. 3, corroborated the latter regarding the carrying of the 20 cement rings in four bullock carts to the house of appellant Taibuddin, as also as to the con struction of the ring well in the month of Chaitra, 1358 B S., on the land of the said appellant. According to him, no other ring well had been made even to this date in village Kundana on behalf of the Union Board. This witness in cross‑examination stated that there were two rival parties in Kundana for the last two years and he belonged to the party of P. W. 1 who was actually his Khalushwashur. This witness was also an accused in a murder case in which appellant Taibuddin was a witness, as also an accused in the counter‑case over the same occurrence. This witness also was not cross‑examined on behalf of appellant Lai Muhammad Sardar.
17. P. W. 6 was the person who claimed that he had dug the ring well at the house of appellant Taibuddin in 1358 B. S. It was constructed, according to him, with the cement rings stored in the house of the said appellant on behalf of the Union Board. He is a brother of P. W. 3. He, too, admitted that his two brothers, P. W. 3 and one Jabir, and the father‑in‑law of P. W. 3 were accused in a murder case in which appellant Taibud din and the accused Didar Bax gave. evidence as prosecution witnesses. In the said case, Jabir was convicted. He himself, it appears, was an accused in a Ganza case but he claimed that he had been acquitted in the said case.
18. P. W. 7 was in 1355 B. S. the clerk of the said Union Board. He proved the resolution, Exh. 1, the signature of appel lant Taibuddin, Exh. 2, the Register, as also Voucher No. 55, Exh. 3, for advance payment of Rs. 100. He also admitted the entry of the 19th Chaitra, 1355 B. S., in the Cash Book, Exh. 3, which he said was in the hand‑writing of clerk Kamaruddin who succeeded him. He was, however, shown Exh. 5 (1), which, according to P. W. 2, had been written by appellant Taibuddin, but this witness denied that the said receipt was in the hand‑writing of the said appellant Taibuddin. He, too, was not cross -examined on behalf of appellant Lai Mohammad Sardar.
19. P. W . 8 was another clerk of the Union Board who succeeded P. W. 7. He proved the entries, Exhs. A and B, in the Cash Register of the Union Board showing the refund and adjustment of the sum of Rs. 100 under Voucher No. 56. He stated that the entry, Exh. B, for the adjustment was made under the direction of appellant Lai Muhammad Sardar and the amount was shown as expenditure under Voucher No. 56. Exh. 5 (1), given to him by appellant Lai Muhammad Sardar. He proved the practice of the Union Board to adjust an advance by showing a refund and a repayment in the account books after the work had been done or the purchase made. Due entries of the 19th of Chaitra, 1356 B. S.; were thus according to him, adjustment of the advance made on the 31st of Chaitra, 1355 B. S., under Voucher No. 55. He, too, denied knowledge of any salish, as suggested by Lai Mohammad Sardar. It was suggested to him on behalf of appellant Talbuddin that the rings purchased under Voucher No. 56, Exh. B and 5 (1), were still lying in the house of appellant Lal Mohammad but he did not accept the said suggestion.
20. The other witnesses are mostly police‑officers who came in the picture after the filing of the complaint.
21. Upon this evidence, the learned Special Judge has come to the conclusion that without any doubt the ring well was con structed by appellant Taibuddin in Chaitra, 1358 B. S., inside his bari by dishonestly converting the rings for his own use knowing full well that the rings were purchased with the money of the Board advanced to accused Didar Bax.
22. He also found that appellant Lal Muhammad Sardar suffered appellant Taibuddin intentionally to convert the rings to the use of appellant Taibuddin by constructing a ring well inside his house for his personal use but he acquitted the accused Didar Bax, as, according to him, there was nothing on the record to show that he actually knew that a ring well was being constructed at the house of appellant Taibuddin with the rings he had pur chased and kept at the house of appellant Taibuddin by the money paid to him by the Union Board.
23. In these appeals, Mr. Ghani, appearing on behalf of appellant Taibuddin has challenged the aforesaid conviction on various grounds. His first contention is that there was no valid or proper sanction in the present case. Secondly, the Special Judge had no jurisdiction to hear this case, as, at the time of the lodging of the complaint, there is no evidence that either or any of the appellants was a public servant. Thirdly, he has contended that the joint trial in the present case of these two appellants has caused a serious prejudice to his client who has thus been denied the substance of a fair trial. Lastly, he has contended that the conviction is based 'on no evidence at all because the entrustment has not been` proved by any reliable or independent evidence.'
24. So far as appellant Lal Muhammad Sardar is concerned, on his behalf the main point that has been taken is that the prosecution evidence has failed to establish that he had either the knowledge of the commission of the breach of trust or the intent to abet the same. Indeed, it is urged that he is in the same position as the accused Didar Bax and, on the same ground, he, too, should have been acquitted, because, there is nothing to show that at the time the ring well was sunk he had anything to do or that he even knew of the sinking of the ring well. It was only subsequently that he came to know this and immedia tely held a salish which decided that the ring well should be made available to the public. On his behalf complaint has also been made of prejudice because it is said that the substance of the offence put to him under section 242 of the Criminal Proce dure Code was entirely different from the offence for which he has now been convicted. In the petition of appeal he also com plains that the learned Judge has illegally recorded only a memorandum of the substance of the evidence given in the case and not, as he should have done, in accordance with the provisions of sections 356 to 359 of the Code of Criminal Procedure, particularly, as the offence charged was one which was triable under the warrant procedure.
25. Mr. Sayem, appearing on his behalf, however, now states that he does not wish to press the said last ground.
26. Dealing first with the grounds urged on behalf of appel lant Taibuddin, I take up the question of the validity of the joint trial in this case. In the present case the charge against appellant Taibuddin was under section 406 of the Pakistan Penal Code
and appellant Lal Mohammad ,Sardar for abetment of the said offence. Now, these offences could legitimately be charged and tried together under the provisions of section 239 of the Code of Criminal Procedure ; but this section is merely an enabling section. It does not say that whenever offences of the kinds mentioned in that section come to be tried, they must' be tried together. This section merely vests a discre tion in the Court to try such offences jointly. The exercise of such discretion must, therefore, be based on sound judicial, principles and in any case where such a joint trial is likely to embarrass the accused persons, it should not be resorted to.
27. In the present case the record of .the evidence discloses that appellant Lal Muhammad Sardar hardly cross‑examined any prosecution witness and, where he did cross‑examine, it was merely to suggest that the offence had really been committed by appellant Taibuddin and that he bad nothing to do with it. Unfortunately some of the suggestions made on behalf of the said appellant Lal Mohammad Sardar have been utilised by the learned Special Judge, even though they were not accepted by the witnesses, to the prejudice of appellant Taibuddin. Thus; the suggestion of the salish and the settlement in the salish that appellant Taibuddin would remove the fencing and make the ring well open for the public has been made use of by the learned Special Judge and he has actually gone to the extent of saying that:
"This suggestion was given on behalf of accused Lal Muhammad which indicates that actually accused Taibuddin made the ring well in his inner bari in Chaitra, 1356 B. S., as deposed to by the other witnesses."
I do not know under what provision of law the learned Judge could use a suggestion made on behalf of a co‑accused as corrobora tion of the evidence of prosecution witnesses, even though the suggestion has not been accepted by any prosecution witness against another co‑accused.
28. There can be no doubt that in the present case the two appellants appear to have been out to harm each other as much as possible The cross‑examination conducted on their behalf seemed designed to throw the blame on the other. In the circumstances, the joint trial of these two persons cannot be said to have been fair. The question, however, is : Have I the power to set this aright or to interfere in this case, particularly, as such a joint trial was not per se illegal and it could not, strictly speaking, be said that there has been any misjoinder, of persons or offences in the present case.
29. Mr. Ghani has, of course, contended that the High Court has the power to set aside the conviction in such circumstances, if it is satisfied, as I am in the present case, that prejudice has actually been caused by such joint trial. In support of this contention, reliance has been placed by Mr. Ghani on the deci sions in the cases of Dwarka Singh and another v. Emperor (A I R 1915 Cal. 743) and Raesh Behari Shaw (Handa) and others v. Emperor (A I R 1936 Cal. 753), The case of Dwarka Singh was a case in which the principal offender and the abettor had been jointly tried but the High Court held that the joint trial bad given arise to complications which would not have arisen if the two accused had been tried separately and, therefore, they set aside the conviction and sentences passed on the appellants and directed that they be re‑tried separately on the charges stated against them. Sharfuddin and Teunon, JJ.,, who decided the case, were definitely of the view that section 239 of the Code of Criminal Procedure gives a judicial discretion to the Court to try cases jointly but the manner . in which this dis cretion should be exercised must depend on the facts of each case. Where the case is of such a nature that the two accused should not be tried jointly, such a joint trial should not be held.
30. In the case of Rash Behari Shaw, Derbyshire, C. J., and Costello, J., were also of the same view and further of the opinion that the High Court, on a consideration of the circum stances of the case, had the power to hold that the accused' should not have been tried jointly and then set aside the convic tion and sentence.
31. If ever there was a case in which such a joint trial should not have been held, I am satisfied that the present is one. In this case, as I have indicated earlier, a grave and serious prejudice has been caused to appellant Taibuddin by such a joint trial.
32. The next question that arises is whether I should, on this account, direct a re‑trial or acquit the appellants before me. The learned Advocates appearing for the appellant have, of course, argued that no useful purpose will be served by the re‑trial, for, the evidence is of such a weak nature that it would be more in consonance with justice to set aside the convictions and sentences of the appellants and to acquit them.
33. The learned Advocate appearing for the State has, how ever, contended that the evidence of P. Ws. 1, 2, 3 & 4, if believ ed, sufficiently established the entrustment in the case of appel lant Taibuddin. P. W. 1 has stated that on enquiry he was told by appellant Taibuddin himself that the rings which he saw lying in his khola were purchased by the Board and it was these rings that, according to this witness, were utilised for the sinking of the well within the compound of the said appellant. Simi larly, P. W. 2 has stated that it was the appellant himself who wrote out the receipt, Exh. 5 (1), when the cement rings were sold on the 19th of Chaitra, 1356 B. S. P. Ws. 3 and 4 have proved that these very rings were carried to the house of appel lant Taibuddin and there kept in his khola. They have also proved that appellant Taibuddin told them that the ring well sanctioned by the Board would be made with those rings and indeed, according to P. W. 3, no hire charge was demanded or taken because of this fact.
34. The learned Advocate for appellant Taibuddin, on the other hand, contends that none of these witnesses should be relied upon. P. W. 1, admittedly, was hostile to appellant Taibuddin and, in fact, had deposed against him in two cases just…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.