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Petitioner: THE STATE VS Respondent: AIN KHAN
P L D 1963 Dacca 119
P L D 1963 Dacca 119
Before Hasan and Asir, JJ
THE STATE‑---Appellant
versus
AIN KHAN‑---Respondent
Criminal Appeal No. 374 of 1961, decided on 5th October 1961.
(a) Chittagong Hill Tracts Regulations (1900), 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.
JUDGMENT
ASIR, J.‑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…
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