1. AHSANUDDIN CHOUDHURY, J.--Reference. No. `14' of 1969 under section 374, Cr. P. C. Had been made by the Additional Sessions-Judge, Comilla for confirmation of sentence of death imposed under section 302/149, P. P. C. On five prisoners, namely, Abdul Latif, Indu Mia Member, son of late Abdul Aziz; Abdul Awal alias Abdul alias Abdul Alim son of Indu Mia, Indu Mia, son of late Altab Ali Haji and Mukhlesur Rahman. Appeal No. 570 of 1969 has been preferred by the above-named five condemned-prisoners against their sentence of death along with 18 others who have been sentenced under section 302/149, P. P. C. To transportation for life each. The condemned-prisoners as well as the 18 other appellants were tried and convicted on. Other charges as well but awarded no separate sentence i.e respect of .Those charges. The reference as well as the appeal having been heard together are disposed of by this judgment.
2. The prosecution case is as follows. P. W. 14 Habibulla of village Sreehasya, P. S. Laksam lodged .a First Information Report at Laksam Police Station on 14th March 1969 alleging that several persons had set fire to their house and had injured his father badly causing burn injuries to him. Laksam P. S. Case No. 6(3) of 1969 was started on the said First Information Report. It was a the of large scale civil disturbance and incidents of arson, assaults and lawlessness were rampant causing widespread panic and freight to the people, particularly to the officials and more particularly to the police. So the officer-in--charge Syed Kalandar Ali took with him, a force consisting of his second officer S. I. Harisuddin (P. W. I), A. S. I. Zikrul Huq (P. W. 3) and 6 constables namely, deceased Amal Khan, deceased Md. Muslim, deceased Probhat Chakrabarty, Syedul Huq, Md. Hossain Ali and Nurul Islam, each of the constables being armed with a rifle and 40 rounds of ammunitions. The Officer- in-Charge himself was armed with' a revolver and he left the police: station with his party making a G. D. Entry No. 331 dated 14th March 1969 at 4-35 p.m. For investigation, of the said case. S. I. Sabder Ali who remained in charge of the Thana was instructed by the officer-in-charge to send a phone message to Chaudhagram Police Station, for deputing one S. I. And to armed constables to join them at village Sreehasya for assisting the investigating party. The police party having got an information that that accused of the aforesaid case had already left Sreehasya village and had come away to Laksam began to look for the accused-in Laksam and Doulatganj. Thereafter at about 1-30 a.m. On 15-3-69 A. S. I. Zikrul Huq and constables Amal Khan, Probhat, Md. Muslim and Hossain Ali went to Langalkot and halted there till the officer-in-charge Kalandar Ali, S. I. Harisuddin and to constables Nurul Islam and Syedul Huq went to Langalkot at 6/6-3Q a.m. The officer-in- charge went by his own motor-cycle and the rest by baby taxis. The officer-in-charge took to local students' leaders, namely, Mustafa Kamal, P. W: 33 and Nazir Ahmed respectively the Vice- President and Joint-Secretary of Pashimgaon College Union with the hope that they might control and pacify the students if the students were involved in the occurrence or if they caused arty disturbance or obstacle to the discharge of the police duty. They took Dr. Ali Ashraf (P. W. 32)
3. Medical Officer of Laksam Charitable Dispensary with them to give first aid to the father of the informant said to have got burn injuries on the eyes and face. All 'of them together started from Langalkot for Sreehasya and reached the house of the informant at 9-30 a.m. On 15-3-69. Dr. Ali Ashraf gave first aid to the father of the informant. In the meantime S. I. Makbul Ahmed with to Constables, namely, Abdul Wahab (P. W. 6) and Md. Mia (P. W: 44) of Chadagram P. S. Joined the police party of Laksam at Sreehasya with to rifles and 80 rounds of ammunitions.
4. It is alleged that in course of investigation the Officer-in-Charge secured the arrest of 4 persons, namely, accused Abut Kalam, Mukhlesur Rahman, Awal, son of Abdur Rab and another Awal alias Alim son of Indu Mia, sized alamats and examined some witnesses. Thereafter at about 3 p.m. They left Sreehasya along with the aforesaid 4 accused and .The seized alamats and on the way they stopped for a while in the house of Ahmed Ali, ex-member and had light refreshment. From there they started for Langalkot with the arrested accused. S. I. Makbul Ahmed, to constables of Chaddagram Police Station, namely, Abdul Wahab and Md. Mia and 4 constables of Laksam. P. S. Namely, deceased Amal Khan; Hossain Ali, Nurul Islam and Syedul Huq were 'going ahead with the 4 arrested accused. Dafadar Ekhlasur Rahman (P. W. 37), informant Habibullah (P, W. 14) and a by carrying alamats were also going with that police party. The officer-in-charge Kalandar Ali, S. `I.
5. Harisuddin (P. W. 1), A. S. 1. Zikrul Huq (P. W. 3) and to constables, namely, deceased Md. Muslim and deceased Probbat Chakravarty of Laksam Police Station; Dr. Ali Ashraf (P. W. 32) and to students' leaders Mostafa Kamal (P. W. 33) and Nazir Ahmed (not examined) were about 50/60 cubits behind the other batch. When the police party with four accused under arrest reached a place near the house of Ahamadulla Muktear of village Dateswar at about 4 p.m. 2000 to 3000 people, including the present accused (other than the four then under arrest) suddenly appeared there from north east and west armed with daos, lathis, brick-bats, etc. And fell upon the escorting police party. They made severe attack and assaults raising cries for killing the police--men. They snatched away the 4 arrested accused who after release 'joined the aforesaid mob and all of them started mercilessly assaulting the policemen and snatched away the rifles from the constables except that of Amal Khan and the seized alamats from the police. Deceased Constable Amal Khan whose rifle. Was sought to be snatched away opened fire from his rifle which hit one of the assailants, namely, the accused Shamsul Hoque. Immediately after that firing, Constable Amal Khan was brutally beaten to death on the spot by the mob including the appellants. The other policemen of that batch were chased, caught and dragged to the Muktear Bari where they were tied down and then dragged to the primary school near, the Muktear Bari and assaulted them severely causing grievous hurts to them. While the attack and assault on the aforesaid police were continuing the officer-in-charge Kalandar Ali along with other policemen attempted to advance for rescue of the victims and for dissuading the assailants from assaulting them any more but they were themselves attacked by the mob. Apprehending great danger the officer-m-charge Kalandar Ali, S, I. Harisuddin, A. S. I. Zikrul Huq and deceased constables Muslim and Probhat ran towards west leaving behind motor-cycle of officer-in-charge and entered the village Bagmara.
6. The mob left the police--men already tied down in the school there and, chased the officer---in- charge and the policemen with him who .Got, shelter in the, house of one Sultan Ahmed (P. W. 20) of Bagmara where S. I. Harisuddin hurriedly took of his police, uniform putting on a fungi which he begged from a female inmate of that house and hick himself inside a paddy basket. Thus he escaped notice of the chasing mob who surrounded and entered the house of Sultan Ahmed when officer-in-charge Kalander Ali fired from his revolver, made their way through the attacking mob and ran towards village Patwari, but the mob chased the police party. S. I. Harisuddin at this moment came out 'from his hiding place without any uniform on and got himself mingled with the crowd who were chasing the police party. A. S. I. Zikrul Huq was overtaken and brought by the mob to the primary school near Muktear Bari and mercilessly beaten.
7. The prosecution story further shows that lastly the officer-in--charge and to constables Muslim and Probhat being chased took shelter in the house of Shamsul Haque Khandakar (P. W. 43) of Patwar where they were kept hidden upon the ceiling of a dwelling but the chasing mob surrounded and attacked the house of Shamsul Hoque Khandakar, threatened him with assaults and setting fire to his house. Some members of the mob broke into the but and compelled the police party, to come .Out. The officer-in-charge in self-defence opened fire from his revolver which hit accused Sirajur Rahman, accused Rustom of Tunibhanga and accused Makku. Then they ran with their life but they were chased and in course of the chase both the constables were caught and beaten to death on the spot by the mob including the appellants. The officer-in-- charge was caught near the house of one Ayub Ali and beaten to death there by the aforesaid furious mob. All the dead bodies were left in the field. The officer-in-charge and 3 constables having been killed, some villagers of Dateswar had mercy for those policemen who were kept tied in the school and released them. With much difficulty they (the police who were let of) walked up to a culvert under repair where a train stopped and they availed it of A. S. I. Zikrul Haq, constables Hussain Ali and Nurul Islam went to Laksam Police Station and S. I. Makbul Ahmed and to constables of his police station went to Feni Without any dress on except under-wears.
8. S. I: Harisuddin having managed his escape reached Laksam Police Station at 10-30 p.m. Prepared and recorded a First Information Report; Exh. 2.
9. It may be mentioned that the students' leader Mostafa Kamal after attack on the first batch of the police hurriedly went to Laksam Police Station and gave an information, of the occurrence to S. I.
10. Sabder Ali who immediately sent a telephonic message to the Additional S. P. On getting: the message the Additional. S: P: came down to Laksam at about 11 p.m. Being accompanied by S. D. O: (Sadar South), Comilla, and a police force: They arranged for the treatment of the victims in. The Police Hospital, Comilla. On the following morning they went to the place of occurrence along with S. I. Harisuddin and searched for the dead bodies. The dead body of Constable Amal Khan was found on a field to the south-east: of Dateswar village in naked condition with multiple injuries.
11. They also found the dead bodies of Officer-in-charge Syed Kalander Ali and to constables Muslim and Probhat on the field in between Patwar and Dateswar. The Additional S. P. Held inquest on the dead bodies of the Officer-in-charge and Constable Muslim while S. I. Harisuddin held inquest on the dead bodies on Constables Amal Khan and Probhat and all the 4 dead bodies were despatched to Comilla morgue for post-mortem examina--tion.
12. P. W. 46 Hrishikesh Bhattacharjee, S. I. Of police, took up the investigation. He visited the place of occurrence, prepared a sketch map with index, recovered and seized the rifles of the victim police constables, revolver and motor cycle of the Officer-in-charge and other alamats from different places (made exhibits in the case). He arrested the accused of whom accused Mafizur Rahman and Maklesur Rahman made confessional statements before a Magistrate, 1st Class. After completion of, the investigation the Investigating Officer submitted charge-sheet against 37 persons; including the present accused-appellants ox 30th April 1969: Mr. Md. Zahirul Islam, Magistrate, 1st Class, Sadar South, Comilla after preliminary inquiry held by him committed 31 accused to the Court of Session- having charged them under sections 302/149, 333/149 and having further charged 27 of them under section 225/ 149, P. P. C.
13. In the Court of Session all the above charges were maintained with slight amendments and a new charge under section 224, P. P. C. Was framed against 4 accused, namely Moklesur Rahman, Abul Kalam, Abul alias Abdul Awal, son of Indu Mia and Abdul Awal son of Abdur Rab.
14. All the accused pleaded not guilty to 'the charges framed against them and denied their concern or involvement in the occurrence. They also denied the manner of occurrence as given by the prosecution. Their defence was that the occurrence took place at a dine when there, was a large scale civil disturbance and a section of the students and members of the public all over the country started campaign against the then regime and they sought to punish criminals and corrupt people by assaulting them and by burning their houses and inflicting various other punishments on them. They were also holding meetings and processions raising slogans against corruption and malpractices by the people in authority. In that situation when the police party were taking the four accused under arrest a band of students and public were returning in a procession from a meeting, held at Langalkot raising slogans against authorities. Seeing their, rowdy arid excited mood Constable Amal Khan being a non-Bengali could not follow their slogans, so he became panicky and opened fire which hit a student, namely, accused Shamsul Hoque whereupon the entire body, of the procession of the, students and public got excited and attacked the said police party, snatched away the four arrested accused beat the policemen and they beat Constable Amal' Khan to death on the spot. The Officer-in-charge and his companion police officers and men were not present in that scene, nor were they following the batch consisting of Amal Khan and others as they were taking tea in the house of ex-member Ahmed Ali. In that area another batch of students were returning in a procession after burning the hots of one criminal named Asghar. At, that the they came to -learn that one of their fellow students was injured by police firing only about an hour before. This news infuriated them against the officer-in-charge and to, constables who were chased by the students beaten to death. The present accused were not at all involved in the attack or assault on the police party or in the killing of the Officer-in- charge and the three constables. It is further contended that none of the policemen could recognise the assailants. But subse--quently in order to make out a, plea for the firing they have concocted a false. Case with the assistance of Habibullah as in connection with his case police went to Sreehasya and arrested four accused. The present case, therefore, is at the instance of Habibullah who had enmity and grudge against all the accused. Accused Muklesur Rahman and Mafizur Rahman further pleaded that their confession was extracted by the police by putting them under inhuman torture and also by offering allurement to them. They submitted that whatever they stated in their confessions all false and that they were tortured by the police: Accused Shamsul Huq, Serajur Rahman and Makku pleaded that having been injured by reckless police firing they were falsely implicated on suspicion ever though they were not at all involved in the occurrence and also with a motive to prevent them from bringing any action against the police, for their indiscriminate firing.
15. Accused Indu Mia, son of late Abdul Aziz and accused Belayet Hossain alias Milan pleaded alibi.
16. Accused Indu Mia stated when examined under section 3 2, Cr. P. C. That he Was away at Comilla and accused Belay Hossain stated that he was away in Chittagong attending School there.
17. All the accused thus asserted their innocence so far as the present occurrence is concerned.
18. The present appellants along with the acquitted 8 accused faced the trial under various charges.
19. Nineteen of the present appellants along with acquitted 8 accused were charged under section 225/149, P: P. C. For rescuing by force accused Muklesur Rahman; Abul alias Abdul Alim, Abul Kalam and Awal from lawful custody of the police: These four accused rescued from the lawful custody were charged under section 224, P. P. C. For escaping from lawful custody of the police by application of force. All the 23 appellants along with 8 acquitted accused were charged under section 333/149, P. P. C. For deterring the police from discharging their lawful duties and in doing so causing grievous hurts to some policemen and they were further charged under section 302/149, P.
20. P. C. For committing the offence of murder of police, on duty namely of Constables Amal Khan, Probhat and Md. Muslim and Officer-in-charge Syed Kalander Ali.
21. The trial was held with the aid of 4 assessors who were divided in their opinion so far as the complicity of the accused in respect of the charges against them is concerned. The learned Additional. Sessions Judge acquitted 8 accused of all the charges out of 31 who faced the trial before him but convicted and, sentenced the appellants as stated above.
22. The prosecution, out of 50 witnesses, tendered 8 namely, P. Ws. 20, 25, 27, 28, 45, 47, 48 and 50 for cross-examination and examined as many as 42 witnesses. P. W. I Harisuddin, P. W. 12 Makbul Ahmed are Sub-Inspectors of Police, P. W. 3 Zikrul Hoque is A. S. I., P. W. 4 Nurul Islam P. W. 5 Sayedul Hoque, P. W. 6 Abdul Wahab, P. W: 8 Hossain Ali and P. W. 44 Md. Ali are constables. There were all victims in the occurrence P. W. 2 Abdul Hakim is Additional Superintendent of Police, P. W. 11 Ansab Ali is a constable who escorted dead bodies to the morgue. P. W. 22 Tajul Islam is another constable, P. W. 24 Kabir Ahmed Chowdhury is S. I. Of Police P. W. 26 Jahan Kader Chowdhury is A. S. I. And P. W. 46 Hrishikesh Chakravorty is Investigating Officer, P. W. 7 Dr. Siddiqullah, P. W. 9' Dr. Kazi- Azizul Hoque, P. W. 15 Dr. Md. Zahirul Hoque, P. W. 16 Dr. Syed Lokman, P. W. 30 Dr. Md. Rafique Hossain, P. W. 32 Dr. Ali Ashraf, P. W. 38 Dr. Abdul Khaleque, P. W. 42 Dr. M. S. Islam p. W. 49 Dr. Wajiullah and medical men of whom P. W. 42 held post-- mortem examination on the dead bodies of Officer-in- Charge Kalander Ali and. Three constables and the other medical witnesses except P. W. 32 examined the injured police men and officers, P. W. 32 Dr. Ali Ashraf accompanied the police party from Laksam. The rest .Are local witnesses who: deposed about the' occurrence.
23. In this case the admitted facts- are that 4 persons, namely accused Muklesur Rahman, Abut Kalam, Abut alias Abdul Awal, son of Indu Mia and Abdul Awal son of Abdur Rab were arrested by the police on the First Information; Report of P. W. 14 Habibullah, that these four arrested persons were by force rescued by a riotous mob and that Officer-in-Charge Syed Kalandar Ali and three Constables Amal Khan, Muslim and Probhat Chakravorty were, murdered.
24. Let us now proceed to consider the evidence on record. P. W. 1 Sub-inspector Harisuddin was attached to Laksam Police Station in March 1969. He has proved the F. I. R. Exh. 4 lodged by P. W. 14 Habibullah on 14-3-69 at 3-30 p.m. It was recorded by the Officer-in-Charge Syed Kalander Ali. His evidence shows that, on 14-3-69 at about 4-30 p.m. The Officer-in-Charge Syed Kalander Ali being accompanied by this witness, A. S. I. Zikrul Hoque (P. W. 3), deceased Constables Amal Khan, Md.
25. Muslim and Probhat Chakravorty, Syedul Huq (P. W. 5) Hossain Ali (P. W. 8) and Nurul Islam (P. W. 4) all constables of Laksam Police Station started for Shreehasya village. Each constable carried a rifle and 40 rounds of ammunition and the Officer-in---Charge Kalander Ali had a revolver. S. I. Sabder Ali (P. W.45) was -left in charge, of the police station and he was asked to give a telephonic message 'to Officer-in-Charge Chaddagram Police Station requesting him to depute one S. I. And to armed con--stables to Sreehasya village to assist them in that investigation. Before leaving the station Kalander Ali made a G. D. Entry No. 331," Exh. 1, noting therein their departure from the Thana.
26. The police party reached Shreehasya at 9-30 a.m. On 15-3-69 S. I. Makbul -Ahmed and 2 constables of Chauddagram Police Station joined them at Shreehasya. The Officer-in-Charge Kalandet Ali in course of investigation arrested four persons: Those four persons are accused Abul Kalam, Moklesur Rahman, .Abu] alias Abdul Awal son of Indu Mia and Abdul Awal son of Abdur Rab.
27. The police party started from Sreehasya at 3-30 p.m. On 15-3-69 with the four arrested accused. A batch consisting of S. I. Mokbul Ahmed (P. W. 12), Constables Syedul Huq (P. W. 5), deceased Amal Khan, N. tslam4l'. W. 4), Abdul Wahab, (P. W. 6), Hossain Ali (P. W. 8), Md. M is (P. W. 44), to local Ansars, namely, Badsha Mia (P. W. 21) and one Mokbul Ahmed (not examined) were escorting the arrested accused. The other batch consisting of the officer-in-charge deceased Syed Kalandcr Als S .1.Harisud--din (P. W. 1), A. S. I. Iikrul Hoque (P. W. 3) and constables deceased Md. Moslem and deceased Probhat Chakraborty, to students Mostafa Kamal (P. W. 33) and Nazir Ahmed (not examined), Dr. Ali Ashraf (P. W. 32) were following the former police party. P. W.14 Habibullah and the local Dafadar Eklasur Rahman (P. W. 37) were also with them. When this Party reached village Dateswa r about 2000/3000 people came from the north, west and east being armed with daos, lathis, etc. And attacked the police party who were escorting the four accused under arrest, started assaulting the police party and snatched away the aforesaid four accused from the lawful custody of the police. They raised the cry kill the policemen Ibis evidence further shows that he himself, Officer-in-Charge Kalander Ali A. S. I. Zikrul Hoque, Constables Muslim and Probhat ChaKraborty ran away and entered Bagmara village. Kalander Ali left his motor cycle behind. They sought to enter and take shelter in several houses but the house owners did not give them shelter. At last the witness, Officer-in-Charge Kalander Ali, A. S. I Zikrul Hoque, Constables Muslim and Probhat Chakraborty entered the house of Sultan Ahmed (P. W. 20) of Bagmara by the back door. But the aggressive mob chased them and some people also were giving out their movements at every stage, the Officer-in-Charge Kalander Ali, A. S. I. Zikrul Hoque, 2 constables left that house and ran towards west. But the witness (P. W. I) managed to procure from that house a lungi which he put on by taking of his uniform and hid himself inside a paddy basket with the bundle of uniform. By that the, the aggressive mob had chased Kalarider Ali, Zikrul Hoque, Constables Muslim and Probhat towards west. At that the he heard a gunshot whereupon all the inmates of that house left the house and he seized that opportunity and went out leaving the uniform behind. He saw people chasing Kalander Ali, Zikrul Hoque and to constables who were heeding for their lives. He joined with the mob in the chase getting himself mingled with them. Out of this party he claimed to have recognised Indu Mia, his son Latif, Shafiqut Rahman, Serajur Rahman, rescued accused Moklesur Rahman, Awal and Abul Kalam. But he identified only Indu Mia and Latif. He proceeded to say that when it became dark he got himself detached from the crowd and started for Laksam Police Station. He reached the police station at 10-30 p.m. On 15-3-69 on foot. 1t appears that he did not see the murder of Officer-in---Charge and 3 constables as he ran with his own life. After his arrival at the Thana A. S. I. Zikrul Hoque and Constables Hossain Ali and Nurul Islam also returned to Thana.
28. They had only underwear's on and had multiple injuries on their person. The witness (P. W. 1) had also injuries on his person. A. S. I, Zikrul Hoque told him that he recognised Indu Mia, Latif and few others. Two constables, namely, Hossain Ali and Nurul Islam told him about their recognition of the accused. P. W. 1 then drew tip a First Information Report between 10-30 p.m. To 11 p.m. And sent A. S. I. Zikrul Hoque and Constables Nurul Islam and Hossain Ali to Comilla Police Hospital on the same night. He also sent a message over telephone to Superintendent of Police, and S. D. O. Sadar(s), Comilla. Additional Superintendent of Police along with S. D. O. Went to Laksam Police Station a midnight and enquired of the occurrence from the witness. In the latter part of the night the Additional Superintendent of Police and S. D. O. With force started from Laksam to search for the missing Officer---in-Charge, Syed Kalander Ali and constables Amal Khan, Probhat Chandra Chakraborty and Muslim. They went to Bagmara and Dateswar and first traced the dead body of constable Amal Khan on the field to the east of village Bagmara and to the south-east of Ahamadulla Muktear's housed The body was in nude condition with multiple injuries thereon. On further search they found the dead bodies of Officer-in-Charge, Constables Muslim and Probhat Chakraborty on the field in between the village Patwar anal Dateswar. They were also in nude condition with multiple injuries on their person. The witness held inquest on the dead body of Amal Khan and Probhat Chakravorty while the Additional Superintendent of Police held inquest on the dead bodes of the Officer-in-charge Kalander Ali and Constable Muslim in presence of witnesses and sent the dead bodies to morgue for post-mortem examination under the escort of Constable Ansab Ali (P. W. 11). In cross-examination he said that he only knew accused Latif from before. He emphatically denied that the First Information Report was prepared by consulting with the Additional Superintendent of Police and Court Inspector and in collusion with people who have enmity with the accused and collected names of the accused from them. He further denied that by firing from their rifles they injured many innocent people and that apprehending trouble for that, they falsely implicated the accused by fabricating a false case. The witness was corroborated by the P. W. 2 Mr. Abdul Hakim, Additional Superintendent of Police as regards the discovery of the four dead bodies with multiple injuries on them.
29. A. S. I. Zikrul Hoque (P. W. 3) was a victim of the occur--rence. His evidence relates to the arrest of four accused by them and snatching them away by force from their custody by a riotous mob being armed with daos, lathis etc. Raising cry, "Kill the Police". The mob also snatched away their rifles except that of Amal Khan but they caught hold of Amal Khan and tried to snatch away his rifle when Amal Khan fired from his rifle which was thereafter snatched away. This witness, Officer-in- Charge Kalander Ali, S. 1. Harisuddin and constables Muslim and Probhat along. With some others tried to help the escorting party but being attacked from all sides they ran away towards the south--west leaving behind the motor-cycle at that place as they got no shelter there. The mob was pursuing them when the witness saw Indu Mia and Latif leading the mob (both identified). At last they entered into the house of Sultan Ahmed but they could not remain there as they were attacked. At that the the Officer-in---Charge Kalander Ali fired to rounds from his revolver, when the mob slightly dispersed and the police officer and 2 Constables ran towards village Patwar. But the witness (P. W. 3) could not escape as he was surrounded -and caught by the mob. They tore of his clothes except his wearing full pant. Accused Alim, son of Indu Mia struck on his right wrist with a roller. Others struck on his head. He saw the mob chasing the Officer-in-Charge Kalander Ali and to constables.. The witness was taken to the Muktear Bari where he found S. I. Makbul Ahmed, Constables Hossain Ali Nurul Islam, Saidul Huq, Abdul Wahab-and Md. Mia all tied with ropes and having injuries on their persons. From there they were taken to a nearby school. After sunset, however, some men came and released there arid from there S. I. Makbul Ahmed and Constables Wahab and Saidul Huq caught the train and went to Feni. Constable Nurul Islam could not move so the witness took him with him but they missed the train and caught the next train and went to Laksam where they met S: I. Harisuddin to whom they reported their recognition of the accused.
30. The witness it is-evident substantially corroborates the prosecution story in all material points.
31. P: W. 4 Constable Nurul Islam, another victim of the occurrence was in the party escorting the arrested accused. He corroborates P. Ws. 1 and 3 stating that the arrested accused were rescued by the riotous mob. He also said that after release those accused joined the mob. And attacked and beat them together alongwith others. When Constable ' Amal Khan fired from his rifle this witness was thrown into a tank but as he crawled to the bank he was taken to the courtyard of Muktear Bari. Due to the assault he has become deaf. He claimed to have recognised the four arrested accused. But he identified only Muklesur Rahman and Alim alias Awal, son of Indu Mia. In cross--examination he said that he could not say who assaulted whom.
32. P. W. 5 Syedul Huq was also in the party escorting the arrested accused. He deposed that the riotous mob snatched away the rifles, rescued the arrested accused and assaulted them with lathis, brick-bats and handles of rifles etc. He was also taken to the Muktear Bari where he was tied down along with others, but after dusk they were let of.
33. P. W. 6 Constable Abdul Wahab, P. W. R Constable Hossain Ali, P. W. 12 Makbul Ahmed, Sub-Inspector and P. W. 44 Cons--table Md. Ali Mia were also in the party escorting the four arrested accused and became victims of the occurrence. They deposed precisely in the same manner .As the foregoing witnesses regarding assaults on them by the accused, including the four rescued accused and snatching away of the rifles from the constab--les. P. W. 6 Abdul Wahab said in his evidence that Indu Mia was crying and saying "Kill the policemen". Whereupon Amal Khan was beaten and knocked out and while lying he fired a shot from his rifle. He further stated that the accused took away their rifles, attacked and assaulted them. Latif, Kalam, Mukles and Belayet tied and assaulted him. He further said that there was no trace of the Officer-in-charge and to constables who were with him. He was one of those who were tied on the courtyard of Muktear Bari and later released along with S. I. Makbul Ahmed (P. W. 12). P. W. 6 identified his rifle No. 1243, Exh. VI which was snatched away but seized later by Investigating Officer. In cross-examination he said that the mob cried out "snatch away the arrested accused first." Thereafter they were attacked from all sides as if they come from some waiting place. He further said in cross-examination that the attacking mob included aged and young persons and it was a the when people used to hate police.
34. P. W. 8 Constable Hossain Ali recognised the four accused who were rescued by the mob. Besides narrating the occurrence in sonic details he said that he was also caught and tied in the house of Muktear Bari along with some other police and was assaulted there. He was in hospital for 26 or 27 days.
35. P. W. 12 S. I. Makbul Ahmed recognised Abdul Latif son of Indu Mia, Abdul Awal son of Abdur Rab, Shamsul Huq and Mukles. He further stated that the four arrested accused after their rescue joined the mob and assaulted them. This witness was along with some other policemen taken to the Muktear Bari in tied and beaten there but released later.
36. P. W. 44 Mohammad Ali Mia described the occurrence in details. He himself was one of the victims.
37. He identified Mukles, Abul Kalam, Awal, son of Abdur Rab. He further stated that Latif, Indu Mia Member, Mafizur Rahman and others, including the four rescued accused assaulted them. But accused Mafizur Rahman beat this witness most. He further identified accused Latif, Indu Mia member and Mafizur Rahman. The evidence of the victim police is worthy of credence.
38. Besides the above witnesses who were victims in the occur--rence the other persons who were in the police party are P. W. 14 Habibullah, P. W. 32 Dr. Ali Ashraf, P. W. 33 Mostafa Kamal, P. W. 37 Eklasur Rahman Dafadar. The evidence of these witnesses lends support to the prosecution case that in course of investigation of Laksam P. S. Case No. 6(1)/61 four' accused, namely, Muklesur Rahman, Abdul Awal alias Abul soil of Indu Mia, Abdul Awal son of Abdur Rab and Abul Kalam were arrested and the present occurrence took place when they w6re'being taken by the police under arrest. P: W. 14 gave full picture of the occurrence arid named and identified as many as 20 accused, namely, Indu, Abdul Latif, Mukles, Abdul Awal, son of Indu Mia and Abul Kalam, Abdul Awal; son of Abdur Rab, Abdul Khaleque alias Hiru. Belayet alias Milan, sons of Indu Mia, Makku, Sekandar, Bechu, Jabbar, Rustam, another Rustam, Idris, Shamsul Hoque, Seraj of Patwar, Safar Ali, Abul Khair and others as the persons who attacked, assaulted the police and snatched away their rifles. He has been described by the defence as the most interested person because the present occurrence arose out of his own case in which four persons were arrested and later rescued by the members of the' public. It can hardly be disputed that he is a most interested person though a material witness. However his evidence will be evaluated when the case of individual accused regarding their participation in the occur--rence will be considered.
39. P. W. 32 Dr. Ali Ashraf was taken by the Officer-in-Charge as it was stated in the Ejahar of P. W. 14 that his father sustained burn injuries on his eyes and face. This doctor affirms that he accompanied the police party to Shreehasya and gave first aid to Keramat Ali, father of P. W. 14 and advised his removal to Sadar Hospital, Comilla. He corroborated that four persons, namely, Abu son of Indu, Mukles, Abul Kalam and Abdul Awal were arrested and he identified them in the dock. His evidence further shows that the arrested accused as well as rifles of the constables were snatched away by the mob near Dateswar. He was chased nlon4 with the police party, but When he disclosed his identity as Medical Officer he was spared by the mob and he took shelter in the house of Peshker Nur Hossain of Bagmara and returned to Laksam next day. He further said that the arrested accused being released attacked and assaulted the police. He is an independent person and reliance may be placed on his evidence as to how the occurrence took place.
40. P. W. 33 Mostafa Kamal is a student of 4th year B. A. Of Peschimgaon College and Vice-President of the College Students' Union. Hi6 evidence is that he and another student Nazir Ahmad who was joint-Secretary of the College Union were taken by the officer-in-charge while they went to Shrechasya. He stated that four accused namely, Mukles, Abul Kalam, Abdul Awal and Abut, son of Indu Mia were arrested by the police and when they came with those arrested accused near the Muktear Bari a mob attacked and snatched away the arrested accused and the rifles of the police except that of Amal Khan, who till then had in his hand his rifle. The witness and Nazir Ahmed tried to dissuade the people but some of the mob attacked Amal khan to snatch away his rifle when Amal Khan fired from his rifle which hit a person on his leg. The mob then fell upon Amal khan and beat him indiscriminately. The four rescued accused also joined the mob and assaulted the police party. The witness recognised only the four arrested accused and Latif who. Was his class friend in his school life. It was suggested to the witness that Latif never read in Laksam School but he read in Peschimgaon College with him and that he (Latif) supported Students' Union and opposed the election of the witness as Vice-President. The suggestion was denied. His evidence further shows that he procured a cycle, went to Laksam Police Station and informed S. I. Sabdar Ali about the occurrence hence he could not see what happened to Officer-in-charge and his companions. In cross-examination he said that at that the students fought against the defective structure of the Government and against corruption and corrupt people. He further said in cross-examination that he was taken to see if students did anything or other miscreants. He said that students had no instruction to beat or injure people. There is no reason to disbelieve the evidence of the independent persons.
41. Now we proceed to consider the evidence of the local witness--ses who deposed regarding the occurrence. They are P. W. 19 Abdul Quddus, P. W. 29 Abdul Gani, P. W. 34 Shafiqur Rahman, P. W. 39 Abdus Sobhan, P. W. 40 Abdus Sobhan, P. W. 41 Rabiul Hossain, all of Shreehasya, P. W. 23 Abdur Rashid of village Thollapara, P. W. 31 Abdul Male, P. W. 35 Abdul Ali, P: W. 36 Ali Arshad and P. W. 43 A.
42. B. M. Shamsul Hoque Khandakar, all of Patwar village.
43. P. W. 19 Abdul Quddus belongs to Shreehasya. He went with the police party while taking the arrested four accused from P. W. 14 Habibullah's house to Laksam Police Station. He said that when the escorting police party reached the south-east of Ahamadullah's house at village Dateswar, 2000/3000 men attacked and assaulted the police party and snatched away the arrested accused and the rifles. He was with the first batch of police taking the arrested four accused. Besides the four accused he recognised Abdul Latif, Hiron, Abut Khair, Indu Mia member, Abdul Aziz, Indu, Rustam of Shreehasya, Jabbar and Shamsul Huq who first attacked the first batch of the, police; snatched away the rifles and the arrested accused from -custody. While they were trying to snatch away the rifle of the non-Bengali Constable Amal Khan (undisputedly a non-Bengali constable) he fired one shot which hit Shamsul Hoque in his leg: - They dragged the policemen of the first batch to Muktear Bari, and then attacked the second batch, consisting of the Officer-in-charge, one S. I.
44. And to constables. They ran towards Patwar when they got no safe shelter in Bagmara: The witness (P. W. 19) also followed the party. The officer-in-charge and to constables entered the house of Shamsui Hoque Khandakar (P. W. 43). After w entering the but they bolted the door but crowd attacked the house and proposed to break it open or set it on fire. Then one man kicked open the door when 20/25 men entered the hut. They found out the Officer-in-charge and the constables from the ceiling, pulled them out from the ceiling and brought them outside. They were assaulted by the mob. The witness named Makku, Latif, Indu, son of Altaf, Abut Khair as the persons beating the Officer-in-charge and to constables. The officer-in-charge then fired 2 or 3 shots from his revolver which caused a gap through which the officer-in-charge and to Constables ran to% aids north--west but the mob chased them on and caught them and on the ghata of Ayub. Ali the Officer-in-charge was beaten to death by the mob which included Indu, son of Altaf, Latif, Hiron, Abut Khair, Mukles, Awal, son of Abdur Rab, Jabbar, Rustom, Abdul Aziz, Milon, Indu Mia member.
45. After killing the Officer-in--charge the to constables were chased and beaten to death on the ghata of Kala Mia.
46. The witness P. W. 19) also found Constable Alam Khan lying unconscious. He was beaten by Indu Mia, son of Altaf Latif, Hiron Abut Khair, Milon, Rustom Jabbar, Mafiz, Mukhles, Awal; son of Abdur Rab, Safar Ali and others. The defence characteris--ed this witness as an omnibus one. But there is little reason to describe him as such inasmuch as he is the natural witness as he was in the company of the police party and had full opportunity to see what had happened.
47. P. W. 29 Abdul Gani is a man of Sreehasya. He also went with the Officer-in-charge and his party.
48. He is, therefore, a competent witness to depose to the occurrence. Out of the mob who attacked, snatched away the four arrested accused and the rifles and assaulted the party, he recognised Abdul Latif Indu Mia memsber, Mukhles, Makku, Abut, son of Indu, Hiron, Milon, Awal, son of Abdur Rab, Sekandar, Rustam, Abut. Khair, Safar Ali and Abdul Aziz. He was not with the party up to the end of the occurrence. It appears that P. W. Rabiul Hossain is son of the brother-in-law of his "Nina", ex- member Ahmed Ali and nephew of his sister's husband and P. W. Abdus Sobhan, son of Arab Ali is his "Fupa" and another P. W. Abdus Sobhan son of Fazaluddin is his `Bhagina'. P. W. Shafiqur Rahman is his nephew. This relationship should not make the witness unreliable.'
49. P. W. 34 Shafiqur Rahman is also a man of Sreehasya. He was going to attend a was meeting along with Quddus, Sobhan, Swab and while they saw the police party escorting the four arrested accused they followed them and when they went near Ahmedullah Muktear's house all on a sudden about 1000 or 1200 then attacked the policemen, snatched away the four arrested accused, the rifles of the police and began to assault them. The non-Bengali police (Alam Khan) fired from his rifle which hit Shamsul Hoque, The arrested four accused after release joined the mob and assaulted the police with them and Amal Khan was beaten to death. He recognised Latif, Abul Khair, Hiron, Milon, Rustom of Sreehasya, Safar Ali, Indu Mia; member, Jabbar, Jitu Mia, Abdul Aziz, Mukhles, Abul, son of Indu, Abul Kalam and Awal. The witness further said that some policemen were tied and dragged to Muktear Bari Primary School. The Officer-in--charge and other policemen ran towards west. The mob chased them. The witness and his companions also followed the mob. The Officer-in-charge and to constables hid themselves in the house of Shamsul Hoque Khandakar whose but was set on fire. The Officer-in-charge tried to escape by firing from his revolver but could not. Not only the Officer-in-charge but to other constables were beaten to death on the Ghata of Ayub Ali and on that of Kala Mia respectively by the same group of persons.
50. In cross-examination it transpired that brother of Quddus married the sister of this, witness but his sister obtained divorce within a month of the marriage and Indu Mia held the Salish. This is no ground that the witness would come to depose falsely against the accused. The witness denied the suggestion that Indu Mia fined him Rs.
100. Another suggestion was that Indu Mia compelled him to divorce his first wife who later has been married to one related to Indu Mia's son Jalil. The witness denied the suggestion and stated that he divorced her for being of loose moral. Hence this suggestion is of no value. The witness also denied the suggestion that Indu Mia fined him for slaughtering a stolen cow. The witness rather challenged that allegation. The witness appears to have well stood the cross-examination.
51. P. W. 39 Abdus Sobhan, another man of Shreehasya, deposed that while going to his sister's house at Putrashal village he saw a police party in the house of Keramat Ali with four arrested accused and as they were in between Dateswar and Bagmara to the south of Ahamadulla Muktear's house about 2500 and 3000 men attacked the police snatched away rifles and the arrested accused and assaulted policemen. He recognised Indu Mia member, Abdul Latif Mawlana Altafur Rahman. Then he added that they (the accused named by him) were only coming where--upon he was declared hostile by the prosecution and cross---examined. His evidence in the committing Court was put in under section 288, Cr. P. C. Which shows that he tried to resile from his former statements in which he implicated the accused.
52. P. W. 40 Abdus Sobhan also belongs to Sreehasya. He wag going to attend a 'Waj Mahfil' and saw the police party going wit four arrested accused. When the party reached the south of Muktear Bari of Dateswa r they were attacked by 400 or 100 men who snatched away the accused, assaulted the police party and took away the rifles. He recognised as many as 13 of them, namely Indu Mia Member, Abdul Latif, Hiron Milon, Abul Khair, Jabbar, Abdul Aziz, Rustom, Safar Ali, Bachu Mia, Indu son of Altaf Makku and Shamsul Hoque, He further stated that 7 policemen were dragged to Muktear Bari and Amal Khan was beaten to death by Latif, Indu Mia, Hiron, Khair, Rustom, Jabbar, Bechu, Abdul Aziz, Safar Ali and Indu, son of Altaf. He denied the suggestion that he was falsely deposing against the accused.
53. P. W. 41 Rabiul Hossain was declared hostile by the prosecu--tion as he did not give out the 'truth and $e was confronted by his deposition in --the committing Court put in under section 288, Cr. P.
54. C, It appears "that his deposition in committing Court supports the prosecution.
55. P.W. 23 Abdur Rashid, is a man of T4iollapara to the adjacent west of village Patwar. His evidence shows that while he was going to Langolkot at Asar prayer the on 15-3-69 he saw about 400 or 500 men to the west of Patwar village screaming from Bagmara side; towards the house of Shamsul Huq Khandaker. He advanced towards that house and went inside when those people surrounded the house and he made query as to what had happened and they said that the Officer-in-charge and to constables had entered the nut. The mob were trying to break open the but when the witness mildly protested but accused Indu, son of Altaf dragged the witness out and gave him a slap on his neck. Wazibullah then dragged him further up to the front of Maunan's 'Kachari. From there he heard a firing sound which hit Seraj of Patwar. At that the the officer-in--charge with to constables were coming but of the but accused Makku -struck a lathi blow on the Officer-in- charge -who fired another shot which hit Makku. The Officer-in-charge again tired for making his way and it hit Rustom. Then the Officer-in--charge ran to the west and the to constables to the north. The chasing mob beat the Officer-in-charge and drove him towards north and in front of the house of Ayub Ali Khandkar he was beaten to death. The witness recognised Makhles, Abul, son of Indu Mia, Mafiz, Latif, Hiron, Milon, Indu Mia, Seraj, Makku and Rustom, while identifying the accused he made some cop--y fusion as he identified Awal, son of Abdur Rab as Kamal. This witness was declared hostile by the prosecution and cross---examination by the pubic prosecutor with permission of the Court. But it is difficult to follow why the public prosecutor had this witness declared hostile. It was riot at all necessary to declare this witness hostile simply because he stated that he did not see Indu Mia in the mob but people were saying that Indu Mia member gave the order to assault. The Witness could very well be confronted by his statement in the committing Court by draw--ing his attention under section 145 of the Evidence' Act and putting the evidence under section 288, Cr. P. C. To show that he was not giving out the whole truth. Except this statement his evidence seems to be reliable.
56. P. W. 31 Abdul Maleque is a man of Patwar, and a villager of P. W. 43 Shamsul Hoque Khaadkar. His evidence is that Shamsul Hoque Khandaker gave shelter to the officer-in--charge and his constables on the ceiling of his dwelling hut but soon after thousand of people with lathis etc. Came and asked about the policemen. This witness falsely stated that the police--men had gone away. The mob began to move towards west. But some one gave out that the Officer-in-charge and constables were kept hidden on the ceiling. The mob then threatened to set the house on fire and in fact they set fire in a part of the but which was put out but Shamsul Huq became unconscious out of fright. At that the he heard a sound of firing and be saw Saraj injured. He then saw the Officer-in-charge and to constables on the outer courtyard and in order to make their way the Officer-in-charge fired again from his revolver which injured Makku. Then they were surrounded by the mob, including Abdul Awal, son of Abdur Rab, Latif, Abul, son of Indu Mia, Makhles, Abul Khair, Indu son of Altaf, Hiron and Milon. They caught hold of the to constables and beat them to death one after another. The Officer-in-charge was also beaten to death but the witness volunteered.
57. "Those others who, had actually beaten Officer-in-charge and the police to death were not even accused". But he did not disclose any other name as noted by the learned Judge. It appears that the witness wanted to shield the accused. Hence the prosecution declared him hostile and cross- examined him. Nevertheless his evidence-in-chief on the whole substantially supports the prosecution. Therefore we take his evidence into consideration.
58. P. W. 35 Abdul Ali is a man of Patwar: He deposed to the occurrence that took place in the house of Shamsul Hoque Khandkar where the Officer-in-charge and to constables took shelter. But ultimately they were beaten to death by the mob out of whom he recognised Mukhles, Latif, Abul, son of Indu Mia, Indu, son of Altaf. The witness further named Seraj and Makku as the persons who surrounded the house of Shamsul Haq to beat the Officer-in-charge and the police.
59. P. W. 36 Ali Arshad is a co-villager of P. W.
35. His evidence is precisely similar to that of the foregoing witness. But he recognised only Mukhles and Indu Mia's son of Abdul Khaleque alias Hiron out of the mob who beat the Officer-in-charge to death on the Ghata of Ayub -Ali.' He further said that he did not see assault on constables but saw that their dead bodies were being dragged. This shows that the witness stated what he had exactly seen.
60. P. W. 43 A. B: M. Shamsul Hoque Khandakar is a resident of Patwar which is about -- mile from both Dateswa r as well as from Bagmara. His evidence shows that at about 5 p.m. On 1st Chaitra when he was on the side of the tank of his house he saw a band of people running from Bagmara side. They were students as well as public. He saw them beating one man in the field of Bagmara village. He could not, however, notice who being beaten. Soon after the Officer-in-charge and to constables came running being chased bpi a mob. They sought shelter from him and he gave them shelter on the ceiling of his dwelling hut but in the meantime about 400 or 500 men surrounded his house and asked him if Officer-in-charge and police were there. He said that they had gone towards west but the mob, did rot believe him and asserted that the officer-in-charge and the police were in his house and they forcibly entered his but. Accused Mukhles, Makku and others attacked, knocked him down, threatened to kill him and set fire to his house. He lost consciousness out of fright and did not see what happened thereafter. At that stage he was declared hostile and cross-examined by the prosecution and his deposition in the committing Court, was put in under section 288, Cr. P.
61. C. With reference to his deposition in the committing Court it appears that there was no reason to declare this witness hostile because in the committing Court also he stated that due to the threat to his life and of setting fire to his house he fainted and came to his senses when the sin was setting. Thereafter P. W. Abdul Ali told him that accused Makku, Makhlesur Rahman, Abul along with others killed the Officer-in--charge and to constables. So there was no reason to think that he was not telling what he had seen. He is the man who gave shelter to the Officer-in-charge and to constables but they could not still escape death at the hands of the mob. The house of this witness was sot on fire and there was a culmination of the occurrence near about his house with the murders of the Officer-charge and to constables. The discussion of the evidence nil dc above shows the the, place and manner of the occurrence. The witnesses corroborated one another on the material points.
62. Now let us come to the medical evidence regarding the post---mortem examination on the dead bodies of the Officer-in-charge and three constables as also in respect of the injuries inflicted on the other members of the police party who survived in spite of some serious injuries on them.
63. As already noticed P. W. 2 Abdul Hakim, Additional Superintendent of Police, Comilla sent the dead bodies for post---mortem examination under the escort of P. W. 11 Ansab Ali. The post-mortem examination was held by P. W. 42 Dr. M. S. Islam, Medical Officer, Sadar Hospital, Comilla. P. W. 11 Ansab Ali produced all the four dead bodies to this doctor and identified them to him. The doctor held the post-mortem examina--tion on the dead body of Constable 730 Md. Muslem on 16-3-69 and found the following injuries
(1) Multiple lacerated wounds of different sizes on different parts of the head.
(2) Multiple ecchymosis of different sizes all over the body more on chest and back.
(3) Multiple fractures on the left side of the skull.
(4) Membrane punctured on the left side and effused blood present on left side.
(5) Brain punctured on left side with effused blood.
(6) Craneal vessels ruptured.
64. On dissection effused blood found under the ecchymo sod leas described above. In the opinion of the doctor death was due to shock and haemorrhage caused by injury No. 1 which was arte-mortem and homicidal in nature. It may be pointed out that injury No. 1 is the fatal injury because injuries Nos. 3 to 6 are resultant effects of the said injury.
65. On the same date the doctor held post-mortem examination on the dead body of constable No. 910 Amal Khan and the following was found :-
(1) Multiple incised wounds of different sizes on different parts of the head.
(2) Multiple ecchymosis of different sizes on different parts of the body.
(3) Incised wounds --" x --" bone cut over the bridge of the nose.
(4) Skull-multiple fractures on the left side and membrane and brain punctured at several places on the left side. Effused blood found on the brain substance.
(5) Ribs--5th and 6th ribs on the left side and 9th and 10th ribs on the right side fractured in the middle.
(6) Pleaura, on the right side and the right lung (middle lobe) punctured.
66. On dissection multiple fractures oil the left side of the skull and ribs of both sides are found and effused blood was found under ecchymosed parts.
67. Death in the opinion of the doctor was due to shock and haemorrhage caused by-injuries Nos. 1 and., I, which, were, ante---mortem and homicidal in nature.
68. On the same date the doctor held post-mortem examination on the dead body of constable No. 785 Probhat Chandra Chakravorty and found the following: Injuries.-(1) Multiple incised wounds of different sizes in different parts of the head up to scalp deep except one on the right temporal region which extends up to the cranial cavity.
(2) Multiple ecchymosis or different sizes on the different parts of the body.
(3) Skull-right temporal bone fractured.
(4) Ribs on 5th, 6th, 7th ribs on the right side fractured.
(5) Pleura on the right side punctured.
(6) Right lung punctured on the upper and middle lobes.
69. On dissection effused blood was found under ecchymosed parts. Death in the opinion of the doctor was due to shock and haemorrhage caused by the injuries noted above which were ante--- mortem and homicidal in nature.
70. On the same day the doctor held post-mortem examination on the dead body of Syed Kalander Ali Officer-in-Charge, Laksam and found the following :-
(1) Multiple lacerated wounds of different sizes on different parts of the body.
(2) One incised wound --" x --" x bone cut over the bridge of the nose.
(3) Multiple ecchymosis of different sizes all over the body.
(4) One punctured wound --" x --" muscle cut on the lateral aspect of the left arm, 3" above the elbow-joint.
(5) 5th rib on the right side fractured on the middle.
71. On dissection, effused blood was found under the injured parts. Death in doctor's pinion was due to shock and haemorrhage caused by the injuries described above which were ante-mortem and homicidal in nature.
72. In view of the medical evidence as well as the evidence of the witnesses considered above the prosecution has satisfactorily proved the death of the Officer-in-charge and 3 Constables mentioned above beyond reasonable doubt.
73. Besides the Officer-in-charge and 3. Constables who- were murdered some other police officers and constables were, severely injured and they were also medically examined.
74. P. W. 30 Dr. Md. Rafiqul Hossain examined P. W. 1 Harisud--din S: I. Of Police and found on his persons as many as 6 injuries of different sizes which are as follows :-
(1) One swelling 3" x 3" on, the back of the left shoulder --joint.
(2) One abrasion 4" x 2" on the middle. Of the back.
(3) One swelling 2" x 1" on the lower part of the back.
(4) One abrasion 2" x 1" on left elbow-joint.
(5) One abrasion 3" x 2" on the middle of the left thigh.
75. P. W. 7 Dr. Siddique Ullah Chowdhury, -Sub-Divisional Medical Officer, Feni, examined S. 1. Mokbul Ahmed (P. W. 12) on 15-3-69 at 7-30 p.m. And found the following :-
(1) One swelling on the whole of the right eye-ball with high congestion of the conjunctive and impairment of the vision grievous in nature, caused by hard and blunt weapon.
(2) One abrasion mark 2" x 1-- on the right side of the forehead. Severe in nature caused by hard and blunt weapon.
(3) One abrasion mark 1--" x 1--" on the front portion of the left side of the top surface of the head.
76. Severer n nature caused by hard and blunt weapon. '
(4) One contusion mark 1" x -- " on the left side of the forehead. Severe in nature. Caused by hard and blunt weapon.
(5) One lacerated wound 2/5" x --" bone deep on the bridge of the nose with epispaxis. Severe in nature. Caused by hard and blunt weapon.
(6) One swelling 1--" x 1" just below the left eye-ball. Severe in nature caused by blunt and hard weapon.
(7) One contusion mark 4" x 2" on the upper part of the left scapular region. Severe in nature.
77. Caused by hard and blunt weapon.
(8) 33 contusion :narks (between 3" x 1--" and 1' x 2/5") on the different parts of the body.
78. Collectively severe in nature caused by hard and blunt weapon.
79. Age of the injuries supposed to be 4 hours. Patient was admitted into hospital.
80. On the same date at 8 a.m. He examined one Abdul Wahab Constable No. 819 attached to Chouddagram Police Station and' found the following injuries on his person :-
(1) 21 contusion marks (between 3" x 1--" and 1" x 2/5") on the different parts of the body. Collectively severe in nature. Caused by hard and blunt weapon. Age of the injuries supposed to be 4 hours.
81. Patient was admitted in hospital.
82. The doctor also examined on the same date at 7-45 p.m. The Constable No. 62 Syedul Huq (P. W. 5) and found the following injuries or, his persons :-
(1) One lacerated wound 1--" x 1/3" x bone deep on the front portion of the left side of the top surface of the head. Severe in nature. Caused by hard and blunt weapon.
(2) One contusion mark 3' x 2" on the middle portion of the left side of the chest. Severe, in nature caused by hard and blunt weapon:
(3) 23 contusion marks (between 2--' x 1" and 1" x --"') on the different parts of the body. Collectively severe caused by hard and blunt weapon.
83. Age of the injuries supposed to be 4 hours. He was admitted into hospital. After 3 or 4 days they were all removed to Chittagong hospital for better treatment.
84. Three medical certificates were granted by the doctor. These are Exhs. 5, 5/1, and 5/2.
85. P. W. 9 Dr. Kazi Azizul Hoque examined A. S. I. Zikrul Hoque (P. W. 3) on 16-3-69 at 3-30 a.m. And found the following injuries on his person
(1) One contusion 4" x 3--" at the middle of third right forearm with fracture of ulna bone. Grievous, caused by hard and blunt weapon. Age of injury less than 24 hours.
(2) One lacerated wound 2' x --" x scalp deep on the right parietal region of the head. Severe caused by hard and blunt weapon. Age of injuries less than 24 hours.
(3) Multiple contusions (10 in number varying from 3--" x 2' to 3" x 1--") severe, caused by hard and blunt weapon: Age of injury less than 24 hours. He was admitted into hospital on 16th March 1969, at 3-30 a.m. And was discharged on 18th April 1969, with recommendation for 7 days rest. Due to shock and haemorrhage caused by injury No. 1 which was arte-mortem and homicidal in nature. It may be pointed out that injury No. 1 is the fatal injury because injuries Nos. 3 to 6 are resultant effects of the said injury.
86. On the same date the doctor held post-mortem examination on the dead body of constable No. 910 Amal Khan and the following was found :-
(1) Multiple incised wounds of different sizes on different parts of the head.
(2) Multiple ecchymosis of different sizes on different parts of the body.
(3) Incised wounds --" x --" bone cut over the bridge of the nose.
(4) Skull-multiple fractures on the left side and membrane and brain punctured at several places on the left side. Effused blood found on the brain substance.
(5) Ribs--5th and 6th ribs on the left side and 9th and 10th ribs on the right side fractured in the middle.
(6) Pleaura, on the right side and the right lung (middle lobe) punctured.
87. On dissection multiple fractures oil the left side of the skull and ribs of both sides are found and effused blood was found under ecchymosed parts.
88. Death in the opinion of the doctor was due to shock and haemorrhage caused by-injuries Nos. 1 and., I, which, were, ante---mortem and homicidal in nature.
89. On the same date the doctor held post-mortem examination on the dead body of constable No. 785 Probhat Chandra Chakravorty and found the following: Injuries.-(1) Multiple incised wounds of different sizes in different parts of the head up to scalp deep except one on the right temporal region which extends up to the cranial cavity.
(2) Multiple ecchymosis or different sizes on the different parts of the body.
(3) Skull-right temporal bone fractured.
(4) Ribs on 5th, 6th, 7th ribs on the right side fractured.
(5) Pleura on the right side punctured.
(6) Right lung punctured on the upper and middle lobes.
90. On dissection effused blood was found under ecchymosed parts. Death in the opinion of the doctor was due to shock and haemorrhage caused by the injuries noted above which were ante--- mortem and homicidal in nature.
91. On the same day the doctor held post-mortem examination on the dead body of Syed Kalander Ali Officer-in-Charge, Laksam and found the following :-
(1) Multiple lacerated wounds of different sizes on different parts of the body.
(2) One incised wound --" x --" x bone cut over the bridge of the nose.
(3) Multiple ecchymosis of different sizes all over the body.
(4) One punctured wound --" x --" muscle cut on the lateral aspect of the left arm, 3" above the elbow-joint.
(5) 5th rib on the right side fractured on the middle.
92. On dissection, effused blood was found under the injured parts. Death in doctor's pinion was due to shock and haemorrhage caused by the injuries described above which were ante-mortem and homicidal in nature.
93. In view of the medical evidence as well as the evidence of the witnesses considered above the prosecution has satisfactorily proved the death of the Officer-in-charge and 3 Constables mentioned above beyond reasonable doubt.
94. Besides the Officer-in-charge and 3. Constables who- were murdered some other police officers and constables were, severely injured and they were also medically examined.
95. P. W. 30 Dr. Md. Rafiqul Hossain examined P. W. 1 Harisud--din S: I. Of Police and found on his persons as many as 6 injuries of different sizes which are as follows :-
(1) One swelling 3" x 3" on, the back of the left shoulder --joint.
(2) One abrasion 4" x 2" on the middle. Of the back.
(3) One swelling 2" x 1" on the lower part of the back.
(4) One abrasion 2" x 1" on left elbow-joint.
(5) One abrasion 3" x 2" on the middle of the left thigh.
96. P. W. 7 Dr. Siddique Ullah Chowdhury, -Sub-Divisional Medical Officer, Feni, examined S. 1. Mokbul Ahmed (P. W. 12) on 15-3-69 at 7-30 p.m. And found the following :-
(1) One swelling on the whole of the right eye-ball with high congestion of the conjunctive and impairment of the vision grievous in nature, caused by hard and blunt weapon.
(2) One abrasion mark 2" x 1-- on the right side of the forehead. Severe in nature caused by hard and blunt weapon.
(3) One abrasion mark 1--" x 1--" on the front portion of the left side of the top surface of the head.
97. Severer n nature caused by hard and blunt weapon. '
(4) One contusion mark 1" x -- " on the left side of the forehead. Severe in nature. Caused by hard and blunt weapon.
(5) One lacerated wound 2/5" x --" bone deep on the bridge of the nose with epispaxis. Severe in nature. Caused by hard and blunt weapon.
(6) One swelling 1--" x 1" just below the left eye-ball. Severe in nature caused by blunt and hard weapon.
(7) One contusion mark 4" x 2" on the upper part of the left scapular region. Severe in nature.
98. Caused by hard and blunt weapon.
(8) 33 contusion :narks (between 3" x 1--" and 1' x 2/5") on the different parts of the body.
99. Collectively severe in nature caused by hard and blunt weapon.
100. Age of the injuries supposed to be 4 hours. Patient was admitted into hospital.
101. On the same date at 8 a.m. He examined one Abdul Wahab Constable No. 819 attached to Chouddagram Police Station and' found the following injuries on his person :-
(1) 21 contusion marks (between 3" x 1--" and 1" x 2/5") on the different parts of the body. Collectively severe in nature. Caused by hard and blunt weapon. Age of the injuries supposed to be 4 hours.
102. Patient was admitted in hospital.
103. The doctor also examined on the same date at 7-45 p.m. The Constable No. 62 Syedul Huq (P. W. 5) and found the following injuries or, his persons :-
(1) One lacerated wound 1--" x 1/3" x bone deep on the front portion of the left side of the top surface of the head. Severe in nature. Caused by hard and blunt weapon.
(2) One contusion mark 3' x 2" on the middle portion of the left side of the chest. Severe, in nature caused by hard and blunt weapon:
(3) 23 contusion marks (between 2--' x 1" and 1" x --"') on the different parts of the body. Collectively severe caused by hard and blunt weapon.
104. Age of the injuries supposed to be 4 hours. He was admitted into hospital. After 3 or 4 days they were all removed to Chittagong hospital for better treatment.
105. Three medical certificates were granted by the doctor. These are Exhs. 5, 5/1, and 5/2.
106. P. W. 9 Dr. Kazi Azizul Hoque examined A. S. I. Zikrul Hoque (P. W. 3) on 16-3-69 at 3-30 a.m. And found the following injuries on his person
(1) One contusion 4" x 3--" at the middle of third right forearm with fracture of ulna bone. Grievous, caused by hard and blunt weapon. Age of injury less than 24 hours.
(2) One lacerated wound 2' x --" x scalp deep on the right parietal region of the head. Severe caused by hard and blunt weapon. Age of injuries less than 24 hours.
(3) Multiple contusions (10 in number varying from 3--" x 2' to 3" x 1--") severe, caused by hard and blunt weapon: Age of injury less than 24 hours. He was admitted into hospital on 16th March 1969, at 3-30 a.m. And was discharged on 18th April 1969, with recommendation for 7 days rest.
107. On 15th of March 1969, at 9-30 p m. The same doctor examined Constable No. 822 Md. Mia (P. W.
108. 44) and found the following injuries :-
(1) Multiple contusions (15 in number) all over the body varying from 4" x 3" to 3-- x 2--".
(2) One braise at the left side of face 4' x 3' with suspected of left jaw bone with restricted movement of the jaw.
(3) Ecchymosis of the eye-lids of both the eyes with sub-con---junctival haemorrhage. All the injuries were severe, caused by hard and blunt weapon. Age of injuries less than 24 hours. He was admitted in hospital on 15th March 1969, at 9-30 p.m. And transferred to Sylhet Medical College Hospital.
109. Constable No. 279 Nurul Islam (P. W. 4) of Laksam was examined by this doctor on 16-3-69 at 3-30 and found the following injuries on his person :-
(1) Multiple contusions (30 in number) all over the body varying from 2--" x 3" to 2--' x 2", severe, blunt, age of injury less than 24 hours.
(2) One contusion 4' x 3" at the left side of the head with haematome 3" x 2' with bleeding from the left ear. Patient was unconscious. Injury of grievous nature caused by blunt and hard weapon. Age of injury less than 24 hours. Patient was admitted in hospital on 16th March 1969, at 3-30 a.m. And discharged on 12th April 1969, and sent to Rajarbagh Police Hospital. Dacca for better treatment.
110. The doctor also examined Constable No. 346 Hossain Ali (P. W. 8) and found the following injuries on his person :-
(1) Ecchymosis of the eye-lid of left eye with sub-conjunc--tival haemorrhage. Severe, caused by the blunt and hard weapon. Age less than 24 hours.
(2) One abrasion 2"x 1-- at the back of left elbow simple caused by hard and blunt substance age of injury less than 24 hours.
(3) Contusions (5 in number varying from 4' x 3--' x 2--' X 1--") at the left shoulder and back of chest. Severe, caused by blunt and hard weapon. Age of injury less than 24 hours.
(4) One haematome 2--' x 1--" at the back of the left circular. Severe, blunt, ageless than 24 hours.
111. Patient was admitted in hospital on 16th March 1969, at 3-30 and discharged on 8th April 1969, with recommendation of leave for 6 weeks by Civil Surgeon, Comilla, The further evidence of this doctor shows that Constable No. 819 Ahdul Wahab (P. W. 6) of Chauddagram Police Station was admitted in Police Hospital, Comilla, on 24-3-69 on transfer from Chittagong 'Medical College and treated here up to 12th April 1969, and then sent to Rajarbagh Police Hospital for further treatment and Constable No. 62 Syedul Huq (P. W. 5) being transferred from Chittagong Medical Hospital was admitted in the Rajarbagh Police Hospital for treatment of fractured ribs on the left side of chest. He was discharged on 12 4-69. The doctor proved the medical certificates granted by him. These are Exhs. 5(3) to 5(5). 6 bad head tickets Exhs. 6 to 6/5 were signed by him.
112. P. W. 15 Dr. Md. Zahirul Hoque was Sub-Assistant Surgaon and Radiologist in the Police Hospital, Dacca. His evidence shows that constable No. 279 Nurul Islam (P. W. 4) and Constable No. Sly Abdul Wahab (P. W. 6) were admitted in Dacca police Hospital on 13th April 1969, and discharged on 28- 4-69. Exhs: 6/9 and 6/10 are the to bed head tickets.
113. P. W. 16 Dr. Syed Lokman Ali proved that Constable Md. Mia (P. W. 44) was admitted into Sylhet Medical College Hospital on 19th March 1969, and discharged on 15-4-69. He was X-rayed on 3rd April 1969, and there was some mild osteoarthritle changes in the lumber spine his bed head ticket was Exh. 6/11.
114. P. W. 49 Dr. Waziullah examined P. W. 37 Eklashur Rahman Dafadar who was also in the police party.
115. He found one swelling on the right thigh and one swelling and scar mark on the back in its right side and one swelling on the right forth inter-costal space. The third injury was serious and could be caused by lathi. The doctor's evidence stands unchallenged by the defence.
116. Besides the above evidence, there are to confessional statements recorded by a Magistrate, 1st Class (P. W. 10). Two accused, namely, Mukhlesur Rahman and Mafizur Rahman made the confessional statements. The evidence of Magistrate shows that Mukhlesur Rahman was arrested on 29-4 -69 at 11 a.m. And his statement was recorded on the same day. This is Exh. 7 and Exh. 7/1 is the signature of the accused and that of the Magistrate is 7/2. Accused Mafizur Rahman was arrested on 26-4-69 and his confessional statement was recorded on 29-4-69. His con--fessional statement is Exh. 8, the signature of Mafizur Rahman is Exh. 8/1 and that of the Magistrate is Exh. 8/2.
117. The confessional --statements were read over and explained to the respective con--fessing accused who admitted the same to be correct. The evidence of the Magistrate further shows that he observed all formalities in that respect and gave sufficient warning, caution and the to the confessing accused and asked them not to make, the confession as they were not bound to make any confession nevertheless they made the confession. The Magistrate was satisfied that the confession was voluntary, i.e. Free from torture, coercion, threat, intimidation and inducement.
118. Accused Mukhles in his confessional statement implicated himself and accused Abut, Abut Kalam, Awal Abul Khair Master, Abdul Latif, Hiron, Milon, Indu member, Indu son of Altaf Ali Haji, Altafur Rahman Makku Mia, and many- other; of village Shreehasya and Idris Master and some others of Atgara took part in the occurrence. His confessional statement contains the material facts of the occurrence including the murder of the Officer---in-charge and 3 constables. This Muklesur Rahman is one of the four persons arrested by the police on the Ejahar of P. W. 14 Habibullah and forcibly snatched away by the mob. In the con--fessional statement accused Mafizur Rahman implicated himself to some extent and he also implicated Indu member, his son Abdul Latif, Hiron, Milon, Indu, Ablul Aziz, Sekandar Ali, son of Altar Ali, Bechu and- Jabbar sons of Sekandar Ali of their village.
119. It may however be mentioned that both Mukhlesur Rahman and Mafizur Rahman retracted their confessions in the trial Court. They contended that they had made the confessions due to oppression, torture by the police and the inducement offered to them by the police. Hence what they stated in their confessions were not true. According to law, the confessions even if retracted can be used as against the persons making the confession if the Court is satisfied that the confession was true and voluntary. In the instant case the allegation that Mukhlesur Rahman and Mafizur Rahman were tortured and oppressed by the police and that inducement was given to them to make confession is without any force as there is no material on record in support of this allegation. P. W. 10 the Magistrate who recorded the statement deposed that no complaint of oppression, torture or inducement was mate to him. There is to medical evidence also to show any masks-of violence on theta. The confessional statements on the whole bear out the prosecution case. This shows that the facts stares by them in their Confessional statements are not beside the prosecution case. In this view, it may be held that the statements are true. The learned Magistrate who recorded the statement was satisfied that the confessional statements were voluntary. There is nothing to show that confessional statements were not voluntary. Moreover the confessional statements received corroboration from the evidence of witness to the occur--rence in respect of salient facts of the occurrence. We are, therefore, satisfied that the confessional statements were not only voluntary lout are also true. Hence even though retracted they nay be utilised as against these to confessing accused namely, Mukhles and Hafiz. Retracted confession of an accused cannot, under the law, be used against the co-accused but when other independent evidence proves the complicity and the guilt of the co-accused reference may also be made to the confessional state--ment involving co-accused even though retracted only to strengthen the other evidence on record.
120. In view of the evidence considered above the prosecution claims to have proved all the charges against the accused-appel--lants beyond reasonable doubt, whereas Mr. Abdus Salam Khan, learned Advocate appearing for the appellants, has pressed three contentions before us to negative the claims of the prosecution. His first contention is that the F. I. R. In the present case is not a hones fide and genuine document because the informant P. W. 1 S. I. Harisuddin did not know any of the accused. So the names trust, have been supplied by some interested persons namely, P.
121. W. 14, Habibullah. His second contention is that no reliance cart he placed on the evidence of recognition of the accused from among a frenzy mob numbering 2000/3000 people and on the subsequent identification of the accused in the dock during trial, and his third contention is regarding the plurality of common objects in the charges levelled against the accused but on third contention his argument was mainly against the charge under section 309/149, P. P. C. That all the accused persons cannot be constructively liable for the offence of murder.
122. As regards his first contention it appears that it is not fully correct that P. W. 1 Harisuddin did not know any accused and drat the names were supplied by some interested persons. It was suggested to P. W. 1 in cross-examination that the First Informa--tion Report was prepared by consulting the Additional Superinten--dent of Police and Court Inspector, etc. And by being in collusion with people having enmity with the accused whose names were supplied by them. The witness denied the allegation. It may be pointed out here that the informant himself was involved in the occurrence but luckily he escaped great danger to his life. He claims to have recognised as many as 8 accused and he heard names of some accused from P. W. 3 A. S. I. Zikrul Hoque, Constable Md. Hossain Ali and Constable Md. Nurul Islam who were victims of the occurrence and were severely injured. There is no evidence except the mere inference that the names in the First Information Report were supplied by P. W. 14 Habibullah. Though out of 15 persons specifically named in the First Informa--tion Report only 9 have been convicted, 2 were discharged by the committing Court and 4 were acquitted by this trial Court, there "1 is no reason to say that the Ejahar was not a bona fide and genuine one. It appears that the informant (P. W. 1) himself could recognise some accused and gathered the names of some accused from the other policemen who were victims of the occurrence along with him. But because of the fact that some accused who were not named in the First Information Report were also charge-sheeted and ultimately convicted, it cannot be said that their conviction is illegal. Their complicity in the occurrence has been proved on satisfactory evidence. Mr. Abdus Salam Khan has conceded that mere non- mention of the names of some persons in the First Information Report does not entitle a person to acquittal if other evidence in Court proves, beyond reasonable doubt, his complicity in the occurrence. In course of Investigation the complicity of some persons besides those named in the First Information Report transpired and the investigating Officer P. W. 46 Hrishikesh Chakravorty charge-sheeted them: In a case of mob violence like the present one much importance cannot be attached to the First Information Report though there are authorities which speak of the importance of the First Information Report being the first written information about the occurrence to the authority concerned. In this view of the matter we find no substance in the contention of Mr. Abdus Salam Khan that the F. I. R: in the present case is not a bona fide and genuine document as regards the accused named therein.
123. The second contention is with respect to the recognition and identification of the accused. Mr. Abdus Salam Khan has argued that in a large scale violence by a frenzy mob numbering 2000 or 3000, it is impossible to recognise which member of that frenzy mob was doing what and he (Mr. Abdus Salaam Khan) has further argued that in a case like this, T. I. Parade ought to have been hold for identification of the accused. He has, therefore, con--tended that it is to be presumed that T. I. Parade was not held because it was not possible for any one of the prosecution witnesses to identify any member out of that frenzy mob. We have already noticed that a large number of police officers and policemen were involved in the occurrence. They named some of the accused persons in their evidence and also correctly identi--fied them. This shows that they know at least some by name as well as by face otherwise they could not name them at all. Moreover their evidence does not stand alone. There is the evidence of local witnesses regarding the recognition of the accused as participants to the occurrence and assailants of the police party. There is hardly any force in the contention that the local witnesses did not know the accused specifically-named by them in their evidence and also identified them during the trial. If the assai--lants are known persons and recognised by name as well as by face, no question of T. I. Parade arises at all: Though all the accused, appellants were not recognised by each of the witnesses to the occurrence or by the same number of witnesses, still the evidence regarding the recognition is quite reliable. In this view of the matter we hold that there is no force in this second contention as well.
124. Mr. Abdus Salaam Khan's third contention relates to the charges. He argued that the accused were charged with more than one common object. In view of the plurality of common objects he contends that the prosecution itself was not sure about the common object of the alleged unlawful assembly and as such the accused were charged with more than one common object in different charge.
125. The, prosecution charged 27 accused under section 225/149 of the P. P. C. For rescuing by force 4 arrested accused, namely, Mukhlesur Rahman, Abul alias Abdul Awal, son of Indu Mia, Abul Kalann and Abdul Awal, son of Abdur Rob from lawful custody of the police party.
126. The four rescued accused were charged under section 224, P. P. C. As they escaped from the lawful custody of the police party be application of force with the help of the other accused persons.
127. The prosecution charged all the 31 accused under sec--tions 333/149, P. P. C. For committing the offence of voluntarily causing hurts, grievous hurts and even death to some police officers to deter them from discharging their lawful duties. We have already noticed that the S. I., A. S. I. And constables were caused hurts, grievous hurts and four of them were murdered and hereby the accused deterred the police from discharging their lawful duties. All the 31 accused were further charged under section 302/149, P. P: C. For committing murders of Officer-in--charge and 3 constables.
128. Mr. Abdus Salaam Khan did not pursue his point against plurality of common objects and he could not show us any authority in support of this contention that there cannot be more than one common object of an unlawful assembly. He did not also want retrial on the ground of plurality of common objects: He did not also contend that due to plurality of common objects in the charges, the accused have been prejudiced inasmuch as the accused well understood the charges against which they were to defend themselves. What he mainly contended is that from the plain reading of the charge under section 302/149 it appears that it is a charge under section 302/34 but there is no evidence necessary to prove a charge under section 302/34. A charge under section 302/34 cannot, it is contended, be established on the evidence of general nature which has been adduced in the present case in volving 2000/3000 frenzy mob. He has, therefore, submitted, that this charge has not been established against the appellants and as such none of the appellants is liable to convic--tion under this charge. It will be presently seen that this contention to has no force.
129. Now we turn to the charge under section 302/149, I'. P. C. Which runs as follows :- "That you on or about the 15th day of March 1969, at Dateswar, Bagmara (P. S. Chouddagram), Patwar (P. S. Laksam), District Comilla were members of an unlawful assembly in pro--secution of common object of which, viz. In committing the offence of intentionally causing death to police officers on duty, you caused the death of Constable Amal Khan, Constable Probhat Chakraborty, Constable Mohd. Muslim and S. I. Syed Kalandar Ali and thereby committed an offence punishable under section 302/149 of the Pakistan Penal Code and within the cognizance of the Court of Session."
130. This charge was against 31 accused who faced the trial. This charge is undoubtedly not happily worded because the expression "in committing the offence of intentionally causing death"' should not have been there in the charge when the charge was under section 302/149, P. P. C.
131. We are now to see whether by this charge the accused were prejudiced and whether it has caused failure of justice. The prosecution case as we have noticed is that the police party when they were going froth Shreehasya with four arrested accused in lawful custody were attacked by an unlawful assembly numbering, as the evidence shows, 2000/3000. This unlawful assembly turned into a frenzy mob who did not stop after rescuing the four arrested accused from the lawful custody of the police but proceeded much further in not only voluntarily causing hurts, grievous hurts but also causing death to one S. I. Of Police who was O. C, of the local police station Laksam and 3 constables of the said police station. The learned Deputy Legal Remembrancer has argued that there was no question of prejudice and failure of justice only because of the unhappy wording of the charge. This defect in the charge is curable under section 537, Cr. P. C. Section 537, Cr. P. C. Runs as follows :--- "Subject to the, provisions hereinbefore contained no finding, statistics or order passed by a, Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal on or revision on account-
(a) of any error, omission or irregularity in the complaint, ---summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or , other proceedings under this Code, or (b)
132. (c)
133. (d)
134. Explanation: In determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings . . . ."
135. In view of the nature of the unlawful assembly, the circumstances under which and the- manner in which the unlawful assembly behaved add acted, it may be said that they know well what offence might be committed by such an assembly. In this connection reliance has been placed by the learned Deputy Legal Remembranrer on to decisions reported in the case of Hazrat Zamal.The State (PLD 1958 SC (Pak.) 383) and in the case of A. Sobhan v. The State (19 D L R 927). The decision reported in PLD 1958 SC (Pak.) 383 referred to above was followed in 19 D L R 927. It has been held in PLD 1958 SC (Pak.) 383 that where the circumstances showed than the accused could have been under no illusion as to the charge the has to defend themselves against and at no stage, during the trial, any exception was taken to the charge, it cannot he said that any prejudice was caused to the accused in their defence try the omission of certain words from the charge or that the said omis--sion had) occasioned in fact a failure of justice. The omission was curable tinder sections 225 and 537, Cr. P. C. In the present case there is of course no direct evidence to show which accused held what weapon but the evidence generally shows that they were armed with daos, lathis, brick-bats etc. And there, is also evidence that the Officer-in-charge and 3 constables were beaten to death.
136. Besides, the evidence further shows that the accused beat the police party and voluntarily caused hurts and grievous hurts to them. From the consideration made above we are of the opinion that there is no substance in the contention of Mr. Abdus Salaam Khan regarding the alleged defect in the charge inasmuch as from the relevant facts. It is quite obvious that the charge was virtually one under section 302/149, P. P. C.
137. Mr. Abdus Salaam Khan, the learned Advocate has then contended that the occurrence was not a single one. There were more than one occurrence, one was at Dateswar near the house of Ahmad Ullah Muktear when the arrested accused went rescued by force, followed, by the murder of constable Amal Khan near about that place and: thereafter the violent mob chased the Officer-in- charge and to constables up to the House of Sultan Ahmed of Bagmara where they went for shelter but having found no shelter there they went to the house of P: W. 43 A. B: M. Shamsul Hoque Khandkar of Patwar where the Officer-in-charge as well as to constables were murdered. In support of his contention he has referred to the evidence of P. W. 1 Harisuddin in cross-examination where -he said that Amal Khan's dead body was found lying one mile or less away from the dead body of Probhat which was found lying at a place to the north-west of the place where the -dead body of Amal Khan was lying and the dead bodies of the Officer-in-Charge Kalander Ali and Constable Mohd. Muslim were found lying near about the dead body of Constable Probhat. We are unable to accept the contention of Mr. Abdus Salaam Khan that there were more than one occurrence even though Constable --- Amal Khan was murdered at one place and to constables named Probhat and Muslim and Officer-in-charge Syed Kalander Ali were murdered at some other place and their dead bodies were also found at different places. As a matter of fact, it was a continuous occurrence without any break. All these are connected incidents, one followed by the other and they occurred in course of the same transaction. We have already noticed that four accused were arrested at Shreehasya hold the Police party started from Shreehasya with arrested accused at 3-30 p.m. On 15-3-69 for Laksam Police Station via Langoikot. But on the way at Dateswa r near the house of Ahmed Ali, Ex-member, the four arrested accused were snatched away by force and -also their rifles except that of Amal Khan .And when Amal Khan's rifle was sought to be snatched away Amal Khan fired from his rifle arid the mob fell upon the police party and beat Amal Khan to death in village Dateswar. The police party then ran towards Bagmara where in the house of Sultan Ahmed some of there took shelter but Sultan Ahmed's house having been surrounded, the Officer in-charge, A. S. 1. Zikrul Hoque and to constables ran towards Patwar village through the open field. The mob then, chased the police party and overtook- the A. S. I. Zikrul Hoque, assaulted him seriously. The other members of the police party were also assaulted but still the mob was chasing the Officer-in---charge and the to constables towards Patwar village whets the Officer-in-change himself in his defence had to fire from his revolver. Ultimately' he and to constables had to give their lives at the hand of the furious mob. It may reasonably be said that it was a continuous occurrence having different incidents but committed in course of the same transaction.
138. Now let us proceed to sum up the evidence as against each individual accused-appellant after giving due weight to the contradiction or omission if any, made by the witnesses in the committing Court, as well as before the Investigating Officer.
139. Accused Abdul Latif, son of Indu Mia member, Union Council, Shreehasya was named by P. Ws. 1, 3, 6, 8,12, 14, 19, 23, 29, 31, 33, 34, 35, 37, 39, 40, 41 and 44 as an active participant in the occurrence. In the committing Court he was not named only by P. Ws. 6, 12, 23, 33 and 40 and P. Ws. 23, 31, 33 'and 44 were contradicted by the Investigating, Officer P. W. 19 stated that this accused Latif beat Constable Amal Khan who was found lying unconscious -and, P. Ws. 34 and 40 deposed that this accused beat Constable Am al. Khan to death along with others, but `P. W. 40 did not name this accused in committing Court. There is however nothing against the evidence of P. Ws. 19 and 34. P.
140. Ws. 19, 23, 31 and 35 deposed that this accused along with others also beat the Offices-in-charge and to constables to death but P. Ws. 23 and 31 were contradicted by the Investigating Officer. P.
141. Ws. 19 and 35 stand uncontradicted. Hence there is no difficulty to rely on their evidence on this point. This accused was named in the F. I R. As well as in the confessional statement of accused Mukhles. There can be no doubt about his active participation at all stages of the occurrence as a member of the unlawful assembly.
142. So far as Abdul Awal son of Abdur Rab is concerned, P. Ws. 1, 8, 12, 14, 19, 29, 31, 34,
39. And 44 who stand unchallenged stated that being released along with 3 others arrested accused he joined the mob, attacked and assaulted' the policemen- of the first batch and they also chased the second batch of the police including Officer-in-charge and others. P. Ws. 19 and 34 stated that this accused along with others beat Amal Khan to death and F. Ws. 19 and 31 stated that this accused along with others beat the Officer-in-charge and to other constables to. This accused was one of, the Tour who were arrested by the police on the, basis of the" Ejahar of P. W.
14. Habbullah and his, name so appears in 'the confessional statement ' of accused Mukhlesur Rahman. The fact that his name was not mentioned in the First Information Report of this case does not matter at all: The evidence stated above clearly shows his active participation in the occurrence as a member of the unlawful assembly.
143. Accused Abul Kalam was also arrested on the basis of the First Information Report, of P. W. 14 Habibullah and he was later released by the unlawful assembly by force and the, evidence of P. Ws.
144. 1, 5, 8, 12, 14, 19 and 34 without an contradiction, proves his participation in the-occurrence after his release. He was named in the First Information Report as well in the confessional statement of Mukhles.
145. As. Against accused Indu- Mia, son of late Abdul Aziz the evidence of P. Ws. 1; 14, 19, 23, 34, 39 and 40 stands without any contradiction either in the committing Court or before the Investigating Officer.
146. P. Ws. 34 and 40 deposed that this accused beat Amal Khan to death and P. Ws. 19 and 34 deposed that this accused along with others beat the Officer-in-charge and to other constables. Besides, he is named in the First Information Report and also named in both the confessional statements. His participation in the occurrence in an active manner has been satisfactorily proved beyond reasonable doubt. Be took a plea of alibi that he was in Comilla bat his plea has not been established at all.
147. Abdul Awal alias Abdul alias Abdul Alim. Son of Indu Mia is one of four accused arrested by the police but released by force. The evidence which solidly stands without any contradiction against him comes from P. Ws. 1, 4, 5; 8, 14, 19, 29, 31, 33, 34 and.
36. They proved his active participation in the occurrence after his release by force by the members of the unlawful assembly. The evidence of P. Ws. 33 and 34 further shows that he along with others beat Amal Khan to death. Their evidence remains unchallenged. The evidence of P. Ws. 23, 31, 35 and 43 shows that he along with others beat the Officer---in-charge and to constables to death but P. Ws. 23 and 35 having been contradicted by the Investigating Officer on this point, their evidence cannot be safely relied upon.
148. No reliance can also be placed on the evidence of P. W. 43 on this point because his is not the primary evidence on this point as he heard it from P. W. 23 but P. W. 23 having been contradicted by the Investigating Officer, we have not accepted his evidence on this point. But we have no reason to discard the evidence of P. W. 31 on this point. He was named in the F. I. R. As well as in the confessional statement of Mukhles. It is, therefore, evident that he, took much active part in the occurrence at all stages.
149. P. W. 37 named accused Altafur Rahman in the trial Court. The evidence of P. Ws. 23, 31, 39 and 41 of the committing Court was put in by the prosecution under section 288, Cr. P. C. To show that, these witnesses implicated this accused in the committing Court but they avoided to implicate this accused in the trial Cot rt. This shows that they did so. Under some influence. Hence the prosecution urged upon the Court to treat the evidence of the above witnesses in the committing Court as substantive evidence. Of course the evidence put in under section 288, Cr. P. C. Becomes substantive evidence and the Court can at on this evidence. P. Ws. 31 and 37, however, stand contradicted by the Investigating Officer. Nevertheless the remaining evidence is sufficient to find his active participation in the occurrence inasmuch as the said evidence shows how active he was as a member of the unlawful assembly in encourag--ing the reseue of the arrested accused by force and in the Commission of other offences. He has been mentioned in the confessional statements of both Mukhles arid Mafiz. His complicity in the occurrence has been established; beyond doubt.
150. Accused Abdul Khaleque alias Hiran son of Indu Mia is a by of 15 but the Judge noted that he looked to be 20 or 21. The evidence of P. Ws. 19, 29 and 34 stands against him without any contradiction. There is no reason 'to disbelieve these witnesses. It further appears from the evidence of P. Ws. 19 and 34 that he participated in beating the Officer-in-charge and to constables to death. Though he is not named in the First Information Report he was named in the confessional statement of the to accused. His guilt appears to have been established beyond reasonable doubt.
151. Accused Belayet Hossain alias. Milan is another son of Indu Mia. He gave his age to be 14 ears but the learned Additional Sessions Judge noted that he appeared to be 20. The evidence against accused Belayet Hossain is that of P. Ws. 29 and 34 who stand completely uncontradicted either by the committing Court's evidence or by their statements before the investigating Officer. It appears front the evidence of P. W. 34 that this accused along with others beat to death the Officer-in- charge acid to constables. In view of his age it is difficult to saw if he really had the common object bf killing the police through he might have assaulted them. In our opinion in the occurrence has been proved in by members of the unlawful assembly. Like his father Indu Mia, he took a plea of alibi that .He was attending school in Chittagong, but there is nothing in support of this plea.
152. Accused Serajur Rahman was named by P. Ws. 1, 14, 23, 31, 34 and 35 as one of the participants in the occurrence. But P. W. 1 could not identify him and P. W. 14 did not name him in committing Court. There is no contradiction or inconsistency so far as the evidence of P. Ws. 23, 31 and 35 is concerned. This accused was injured by the revolver shot of Officer-in--charge in the house of P.
153. W. 43 Shamsul Huq Khandakar. The fact has been corroborated by P. Ws. 31, 34 and 35. He was medically examined by P: W. 38 who found one penetrating wound -- x --" with a track of the parties of the" left chest wall towards abdominal wall. A bullet --" long and --' diameter was found in the panitics of the abdominal wall and removed under local anaesthesia. There could be no doubt, therefore, hat he was a member of the unlawful assembly and took part to the occurrence.
154. His contention that he was injured by the in discriminating firing of the police and that he did not join the occurrence is not acceptable in view of the offence against him including the fact that he is named in F. I. R. Of this case.
155. Accused Makku Mia was also injured by the revolver shot of the officer-in-charge in the house of P.
156. W. 43 and this fact has been proved by P. Ws. 23; 31, 34; 35 and 36 but it is to be rioted however that P. Ws. 31, 34, 35 and 36 stand contradicted by the Investigating Officer. So far as his specific acts are concerned but regarding his participation in the occurrence there is no contradiction. Then there remains the evidence of P: W. 23 and the circumstantial evidence that he received a revolver shot injury. The fact that he was injured with the revolver shot of the officer-in-charge is not disputed by the defence though it is contended that he was injured by a stray bullet. He was examined by P. W. 38 Dr. A. Khaleque, Civil Surgeon, Comilla who found one penetrating wound --"
157. X --" on the left chest wall and a bullet --" diameter was found in the parietal wall over the right saeroiliac region, and was removed under local anaesthesia. His participation in the occurrence cannot be doubted in the face of the circumstantial and oral evidence against him coupled with the fact that he was named in F. I. R. Of this case.
158. Accused Shamsul Hoque's participation in the occurrence has been proved by the P. Ws. 14, 19, 34- and 40 but in the committing Court P. W. 14 omitted his name and P. Ws. 19 and 40. Stand contradicted by the Investigating Officer. The only witness who stands unchallenged and uncontxadicted is P. W.
34. He is named in the F. I. R. Of this case. Besides this, there, is the circumstantial evidence namely, the injury sustained by him from the rifle shot of Amal Khan. He was examined by P. W. 38 who found one lacerated injury 4" x 2" deep on the medial aspect of the right thigh. The injury, the doctor opined, might be caused by a bullet. So his participation in the occurrence as a member of unlawful assembly stands proved. After this firing, the evidence' shows, constable Amal Khan was beaten to death. There appears to be no evidence that he was a student at the the, of occurrence.
159. P. Ws. 14, 19, 29, 31, 34 and 40 stated that accused Abut Khair participated in the occurrence. Of these witnesses P. Ws. 19, 29 and 34 stand uncontradicted in any manner. P. Ws: 19, 31 and 34 further said that this accused along with others beat the officer-in-charge and to constables to death. P.
160. W. 31 appears to have been contradicted by the Investigating Officer. , Hence on this point there remains the evidence of P. Ws. 19 and 34. He was mentioned in the confessional statement of Mukhles. There is no reason to disbelieve this evidence. The complicity of this accused in the occurrence as alleged by the prosecution is established beyond reasonable doubt.
161. Accused Muklesur Rahman is one of the to confessing accused. He implicated. Himself and many others in the occurrence. His confessional statements have been already considered. A large number, of witnesses namely P. Ws. 1 4, 5 6, 8, 12; 14, 19, 23, 29, 31, 32, 33, 34, 35, 36,137, 39, 43 and 44 deposed as regards his active participation in the occurrence after he was-rescued from arrest by the members of the unlawful assembly and he himself escaped from lawful custody. He was named in the First Information Report. These is contradiction only in respect of P. Ws. 31 and 32. The other evidence stand solidly against him. Needless to say that the evidence against him is overwhelming. The evidence further shows that he along with others beat to death Constable Amal Khan, the Officer-in--charge and to other constables to death. He beat the deceased police officer and constables so much that he got fainted due to over exhaustion. His participation in. The occurrence has been fully established in respect of all acts done by the members of the unlawful assembly.
162. Accused Mafizur Rahman is another confessing accused. He did not implicate himself so much as the other confessing accused Mukhlesur Rahman did. His participation, in the occurrence has been stated in the evidence of P. Ws. 8, 1923, 36 and 44. P. Ws. 23 and 44 made omission in the committing Court. P. Ws. 8, 23, and 44 also stand contradicted by the Investigating Officer. But it should be noted here that P. Ws. 8 and 44 were examined by the Investigating Officer/in the hospital as they themselves were injured. In that state of mind and health, there was possibility of omission. Hence we do hot attach any importance to the omission of these to witnesses when examined by the Investigating Officer. P, W. 19 further stated that this accused along with others beat Aortal Khan to death. In view of this evidence and also in view of his own confession there Abdul could be no doubt that this accused participated in the occurrence at all state Accused Abdul Jabbar was implicated in the evidence of P. Ws. 14, 19, 34 and 40. P. Ws. 19, 34 and 40 further stated that this accused along with others beat Amal Khan to death and P. Ws. 19 and 34 stated that he along with others beat the Officer-in-charge and to other constables to death but on this point P. W. 34 stands contradicted by the Investigating Officer. But the evidence against him is sufficient to hold him liable for the death of constables. He was also mentioned in the confessional statements of Mafizur Rahman. His participation in the occurrence from the beginning to end regarding the rescue of the arrested accused by force, snatching away the rifles assaul-- ting the police party has been established beyond doubt.
163. Accused Indu, son of Altaf Ali Haji was named by P. Ws. 14, 19, 23, 31, 35 and 40 as the person taking very active part in .The occurrence. Of these witnesses, P. Ws. 23, 31' and 35 did not name him in the committing Court. Hence there remains the evidence of P. Ws. 19 and 40. P. Ws. 19 and 40 stated that this accused beat to death Amal Khan and P. W. 19 further said that this accused also beat to death the Officer-in-charge and the to constables. Further evidence against this accused is that he was found in fatigued condition due to his active participation in the occurrence at all stages viz. Snatching away the arrested accused and the police rifles and assaulting the police party and beating to death the Officer-in-charge and the three constables. There is, therefore, no doubt about his active participation in the occurrence and his guilt in respect of the charges against him.
164. P. Ws. 19, 29, 34 and 40 deposed regarding the participation of accused Abdul Aziz alias Abut in the occurrence. P. Ws.
19. And 29 stand contradicted by the Investigating Officer. Then there remains the evidence of P. GIs. 34 and 40 only. P. Ws. 34 and 40 deposed that this accused along with others beat Amal Khan to death and P. Ws. 19 and 34 deposed that he along with others beat, the Officer- -in-charge and to constables to death. But we have already said that P. W. 19 is contradicted by the evidence of the Investigating Officer so far as this accused is concerned. But it appears that there were to Abdul Aziz, one of Shreehasya and another of village Patwar. This accused Abdul Aziz is of Shreehasya. Another Abdul Aziz is not before us. The fact that there being to Abdul Aziz one of whom is an accused and the other is not, it is not safe to rely on the evidence of P. Ws. 34 and 40 in the above circumstances. Having regard to the insufficiency of evidence regarding specific complicity of the insufficiency accused Abdul Aziz, we think this accused is entitled to benefit of doubt.
165. As against accused Safar Ali there is no reliable evidence because in the trial Court, P. Ws. 14, 19, 29, 34, and 40 named him as a participant in the occurrence but P. Ws. 19, 29, 34 and 40 did not name him to the Investigating Officer. So there mains only the evidence of P. W, 14 who is an interested person because the whole occurrence originated on the arrest of four accused on the basis of his First Information Report. This accused Safar Ali is, in our opinion entitled to benefit of doubt.
166. Accused Rustam son of late Abdul Aziz of Tunnibanga appears to have been named by P. Ws. 14, 29, 36 and 40. None of these witnesses stated the particulars about this Rustam, that is, they did not fix the identity either by the father's name or by his address. All of them only named him as Rustam. Of course the prosecution led evidence to show that he was injured by the revolver shot of the officer-in-charge. It does not, however, appear from the evidence that he was examined medically after his arrest to show that he sustained any injury by the revolver shot. It may be pointed out here that there is another accused named Rustom, son of late Serajuddin of Shreehasya. The prosecution led evidence to show that P. Ws. 14, 19, 29 and 34 named him as a participant in the occurrence. It appears from the evidence of P. Ws. 19 and 34 that they named Rustom belonging to Shreehasya but they have been entirely contradicted by the Investigating Officer who stated that the names given out by these witnesses did not include the name of Rustom. P. Ws. 29 simply stated that Rustom was a member of the unlawful assembly. So the evidence of P. W. 29 does not particularly fix Rustom of Shreehasya or the other Rustom and this evidence is of vague character and to persons named Rustom were not identified by any of the witnesses. P., W. 14 also stands contradicted by the Investigating Officer and also an interested mail. P. W. 40 did not name any Rustom in the committing Court. Hence this evidence cannot be accepted to convict either of the accused named Rustom. The prosecution led further evidence to shore that P. W. 40 stated that this accused beat Amal Khan to death but this evidence has got no particular reference to either of these to Rustom Further evidence of the prosecution is that P. W. 23 and P. W. 34 named Rustom as the person who beat Officer-in-charge and the to constables to death but the evidence of P. W. 23 does not specifically fix either of the to Rustom though'-the evidence P. W. 34 fixed Rustom of Shreehasya but as already 'noticed he stands contradicted by the Investigating Officer. This being the state of evidence both the accused named Rustom of Tunnibanga and Rustom of Shreehasya are entitled to benefit of doubt because of the vagueness in evidence. Moreover none of these to Rustoms were named in the First Information Report or in the confessional statement of the confessing accused.
167. Accused Bechu was named in the trial Court by P. Ws. 14, 34 and 40. But in the committing Court P.
168. W. 34 did not-name him and P. W. 14 is contradicted by the Investigating Officer. Hence the only evidence against him is that of P. W.
40. On this isolated evidence it is not safe to convict any accused or to uphold any conviction.
169. The evidence which was adduced in the trial Court against accused Idris son of late Abdul Majid is not at all convincing because P. Ws. 14 and 34 are the only witnesses who spoke about his participation in the occurrence. In the committing Court P. W. 34 did not name this accused and both P. Ws. 14 and 34 stand contradicted by the evidence- of Investigating Officer stare Hence in our opinion, he is also entitled to benefit of doubt.
170. So far as accused Sekendar Ali is concerned the only evidence which stands uncontradicted against him is that of P. W. 14 an interested person because it is out of his case which was started on his F. I. R. That this occurrence took place. Due to insufficiency of evidence this accused is entitled to the benefit of-- doubt.
171. The defence contention is that it was the the of large scale civil disturbance and a section of students and members of the public all over the country started campaign against the then regime and they sought to punish the corrupt people. In that situation when the police party were taking the four arrested. Accused a band of students and public were returning from a meeting held at Langalkot raising various slogans. At that the Constable Amal Khan opened' fire which hit a student, named accused Shamsul Huq. This firing excited the students and the public who attacked the said party of police snatched away, the arrested accused and beat to death Amal Khan then and there. The officer-in-charge and his companions were not present in that scene.
172. 'They were in the house of ex-member Ahmad Ali. Another hatch of students were returning in a procession from some other place. At that the that both of students came to know that one of their fellow students was injured by police firing only about an hour before. This infuriated them against the Officer.-in-charge and his companion policemen. So they chased the Officer-in-charge and the to constables and finally beat them to death. The present accused were not at all concerned or involved in that occurrence but they have been falsely implicated at the instance of their enemies.
173. The defence, it appears, does not dispute the the and place of the occurrence but disputes the manner of occurrence. The learned Additional Sessions Judge did not accept this defence version.
174. It seems that he rightly rejected the defence version. He observed as follows: "It was the prosecution case that the present accused persons being the father, brothers and others close relations of these four arrested accused were the persons who organised the unlawful assembly and were members of the unlawful assembly because they were the persons who had their grudge against the police party due to their arresting four accused and it was their sole interest to have the four arrested accused rescued from the police arrest. From the evidence on record it has been found that accused Abdul Latif, Abdul Khaleque alias Hiron and Belayet alias Milon are the full brothers of the arrested accused Abut, accused alias Mia is the father of arrested accused Abut and uncle-in-law pf arrested accused Mukhles. The accused Altafur Rahman `is the uncle of arrested accused Awal, son of Abdur Rab, and "Taloi" of arrested accused Abut Accused Abdul Aziz is uncle of arrested accused Kalam. Accused Indu Mia, son of Altaf Ali is sister's husband of arrested accused Kalam. Accused Makku is `talatabhai' of arrested accused Mukhles. Accused Abut Khair lives on lodging at the house of accused Indu Mia."
175. The relationship as found by the learned Additional Sessions Judge has not been disputed before us. It is rightly observed that these relations of the arrested accused were vitally interested it rescue them from the police custody taking advantage of the Mate of lawlessness that was prevailing in the country at that the. So it is futile to contend that they were falsely implicated this case at the instance of their enemies. The evidence which has been discussed above supports the prosecution story as regards the the, place and manner of occurrence.
176. Now let us turn to the specific charges under which the appellants have been convicted by the learned Additional Sessions Judge. The learned Additional Sessions Judge has convicted 19 of the appellants under section 225/149, P. P. C. On his finding that they rescued by force, the remaining four appellants, namely, Abdul Awal alias Abul alias Abdul Alim, Abdul Awal, son of Abdur Rab, Abul Kalam and Mukhlasur Rahman from lawful custody of the police. On the evidence considered above as against individual accused we have found that the prosecution could not prove beyond reasonable doubt the complicity of 7 appellants, namely Abdul Aziz alias Abdul, Rustom, son of last Abdul Majid of Tunnibhanga, Rustom Ali, son of late Serajuddin of Sreehasya, Bechu, Idris, Safar Ali and Sekandar Ali. So they are entitled to benefit of doubt and their conviction under, section 225/149, P. P. C. Cannot be maintained. But as regards the remaining 12 accused there is sufficient evidence that they formed an unlawful assembly along with others and in prosecutions of the common object of the assembly, namely, to rescue the arrested four accused, snatched them away by force from the lawful custody of the police long with their (police) rifles which were subsequently recovered in damaged condition from different places arid persona during investigation.
177. In view of the evidence discussed Artier, we are satisfied that the 12 accused appellants namely (1)
178. Abdul Latif, (2) Indu Mia, son of Abdul Aziz, (3) Altafur Rehman, (4) Abdul Khaleque alias Hiran, (5)
179. Belayet Hossain alias Milan, (6) Serajur Rehman, (7) Makku, (8) Abul Khayer, (9) Shamsul Huq, (10)
180. Mafizur Rahman, M (11) Abdur Jabbar, (12) Indu Mia son of Altaf Ali have been rightly convicted under section 225/149, P. P. C. And there is no reason to interfere with their conviction under that section. The learned Judge has not however awarded any sentences in respect of this charge.
181. Now we turn to the charge under section 224 Pakistan Penal Code. Accused Abdul Awal alias Abut alias Abdul 'Ali, Mukhlesur Rahman, Abdul Awal, son of Abdur Rab and Abu) Kalam were admittedly arrested by the Officer-in-charge deceased Kalander. All with the help of other police in connection with Laksam Police Station Case No. 6 (3) of 1969 started on the F. I. R. Of P. W. 14 Habibullah. While they were being taken under arrest by the police they escaped from the lawful custody, hence they were charged. Under section 224 of the Penal Code a and were convicted thereunder. The fact that they escaped from the lawful custody is not disputed. Accused Mukhlesur Rahman who made a confessional statement admitted these facts in his confession. There is sufficient evidence also on this point. P. Ws. 1, 3, 4, 5, 6, 8, 12 and 44 who were taking them under arrest have proved this charge against these four accused. Besides, the evidence considered above in respect of the charge under section 225/149 also lends support to his charge against these four accused. Hence there is no reason to disturb the conviction of these four accused under section 224, P. P. C. No sentence has, however, been awarded in respect of this charge.
182. Under section 333/149 all these 23 appellants have been convicted by the learned Judge. The prosecution case is that after having been rescued from the lawful custody of the police the four accused, namely, Awal, Mukhles, Awal, son of Abdur Rab and Abul Kalam joined the unlawful assembly and assaulted the police party along with others. Besides the evidence of the escorting; police party on this point there is the evidence of p. Ws. 4, 32 arid 33 who have clearly proved this fact. The evidence shows that officer-in-charge and constables were murdered and several police officers and men were injured. The evidence in respect of this charge against these accused is the same which has been discussed in connection with the participation of the accused in the occurrence as members of an unlawful assembly P. W. 1 Harisuddin, S. I. Of Police, P. W. 3 Zikrul Huq A. S. I., P. W. 4 Nurul Islam, P. W. 5 Syedul Huq, P. W. 6 Abdul Wahab, P. W. 8 Hussain Ali (all constables), P. W. 12 Makbul Ahmed A. S. I. P. W. 37 Eklasur Rahman Dafader, P. W. 44 Mohammad Ali Constable were victims of the occurrence. All of them were assaulted and some were injured severely. P. W. 30 Dr. Rafiqul Hossain examined P. W. 1 Harisuddin and found as many as injuries on his person. P. W. 7 Dr. Siddiqullah Choudhury examined S. I. Makbul Ahmed. He found multiple injuries of various nature on the person of Makbul Ahmed and some were severe in nature. The doctor also examined Constable Abdul Wahab Constable Syedul Huq and found a number of injuries on their persons. P. W. 9 Dr. Kazi Azizul Huq examined A. S. I. Zikrul Huq Constable Mohd. Mia: Constable Nurul Islam, constable Hossain Ali and found multiple injuries on their persons. They were admitted in hospitals and after long treatment they were discharged. P. W. 49 Dr. Waziullah examined P. W. 37 Ekiasur Rahman Dafadar. The evidence on record further shows that S. I. Makbul Ahmed (P. W. 12) and A. S. I. Zikrul Huq (P. W. 3) Constables Abdul Wahab (P. W. 6), Mohammad Ali (P. W. 44), Hossain Ali (P. W. 8), Nurul Islam (P. W. 4) and Syedul Huq (P. W. 5) were dragged to the house of Ahamedullah Muktear and from there to a school nearby and they were tied down there but ultimately some men of the locality prevailed upon the members of the unlawful assembly to get them released. These police officers and constables have deposed to that effect. On the evidence, however, we have not been satisfied to hold that guilt of the 7 appellants, namely Abdul Aziz alias Abdul, Rustom, of Tuunibbanga, Rustom of Sreobasya, Bachu, Idris, Safar Ali and Sekandar has been proved beyond reasonable doubt. We accordingly held that they are entitled to benefit of doubt. So their conviction in respect of this charge cannot be maintained. But as regards the remaining 16 appellants we find from the evidence considered above that the charge under section 333/149 against them has been satisfactorily proved and they have been rightly convicted under section 333/149, P. P. C. But no sentence has been awarded for conviction under this charge.
183. Let us now consider the major charge under section 302/149, P. P. C. The learned Additional Sessions Judge has convicted all the 23 appellants under this charge and sentenced to death 5 of the appellants, namely Abdul Latif, son of Indu Mia, Indu Mia member, son of late Abdul Aziz, Abdul Awal alias Abul alias Abdul Alim, scan of Indu Mia, Indu Mia, son .Of late Altaf Ali Haji and Mukhlesur Rahman, son of late Kala Mia and the rest to transportation for life.
184. The fact that the officer-in-charge Kalander Ali and three constables Amal Khan, Mohammad Muslim and Probhat Chakraborty were killed in course of the occurrence is not disputed. But Mr. Abdus Salaam Khan has contended that it is impossible to attribute common object to all members of the unlawful assembly consisting of 2,000 or 3;000 people to commit murder of the Officer-in-charge and the constables or to hold that all of them might know that such murders might be committed by the members of the unlawful assembly of this kind. In support of this contention he has pointed out that evidence shows that as many as seven police persons viz. One Sub-Inspector, one Assistant Sub-Inspector and 5 constables were kept tied in a school near the house of one Ahmedullah Muktear but they were later let of. It is, therefore; argued that all these seven police persons could be easily murdered if all the members of the unlawful assembly had the common object to kill the police. He has further argued that firing by the police was followed by the killing of the. Police constables and the Officer-in-charge. He has therefore, sought to impress upon the court that had there been no firing by the police injuring 3 or 4 persons, none of the police party would have been killed.
185. It is true that seven police persons who were caught and kept tied were later let of and from this fact this contention of Mr. Abdus Salaam Khan seems to have some force and it may be argued that all the members of the unlawful assembly might not have the common object to kill but in view of the evidence on record it cannot be disputed that some members of the unlawful assembly had the common object to kill the police and as a matter of fact they killed 4 police personnel of whom one was Sub---Inspector of Police and Officer-in-charge of Laksam police station and 3 were constables of the said station. It is, therefore, difficult to agree with Mr. Abdus Salaam Khan that had there been no firing by the police there would not have been any murder at all. Constable Amal Khan fired from his rifle when arrested accused and the rifles from the other constables were snatched away: He fired in self-defence and his rifle was also later taken away and he was beaten to death similarly the Officer-in-charts also tiled from his revolver in self-defence and not only the Officer-in-charge but to constables who were with him were also murdered. The other constables could not even use their rifles .Due to the, serious attack on them and the situation took a grave turn and went out of control. It was the the of extreme lawlessness and large scale civil disturbance. So the mob instead of getting dispersed got excited and intensified and aggravated their attack upon the police who had to open fire under extreme necessity to face the situation and ultimately they had to give their lives.
186. Now we are to decide upon the evidence which of the appel--lants had the common object to kill and which of them had not the said common object but bad the common object of causing grievous hurts to the police party.
187. Out of 23 appellants convicted by the learned Additional Sessions under the above charge we have found 7 of them, namely, Abdul Aziz alias Abdul, Rustom of Tunnibhanga, Rustom Ali of Sreehasya, Bechu, Idris, Safar Ali and Sekandar Ali entitled to benefit of doubt in respect of this charge as well and hence entitled to acquittal from this charge. Then remain only 16 accused appellants before us.
188. While considering the case' of individual accused with refer--ence to evidence we have already shown there that accused appel--lants (1) Abdul Latif, son of Indu Mia, (2) Abdul Awal. Son of Abdur Rab, (3) Indu Mia, son of Abdul Aziz, (4) Awal alias Abul alias Abdul Ali, son of Indu Mia, (5) Abdul Khaleque alias Hirxn, son of Indu Mia, (6) Abdul Jabbar (7) Indu Mia, son of Altaf Ali Haji, (8) Abut Khair, (9) Muklesur Rahman and (10) Mafizur Rahman beat the officer-in-charge and the 3 constables to death. It is not necessary to repeat the evidence here again: A glance at the evidence of P. Ws. By, 31, 33, 34, 35, 36, 40, etc. Will clearly bear out the above fact. We are satisfied from the evidence on record that these 10 accused appellants (just named above) had definitely the common object to kill the police party and in prosecution thereof they killed the officer-in- charge and 3 constables. We are, therefore of the opinion that the charge under section 302/149, P.
189. P. C, has been established against these 10 accused and the learned Additional Sessions Judge has rightly convicted them there--under.
190. Regarding the 6 other accused appellants namely, (1) Abul Kalam, (2) Altafur Rahman, (3) Belayet Hossain, (4) Serajur Rahman, (5) Makku and (6) Shamsul Huq, there is no cleat evidence in these accused beat the police personnel to death, The evidence of P. Ws. 1, 5, 8, 12, 19, 23, 31, 34, 35 and others; no doubt, shows that these 6 accused actively participated in the occurrence and it so gave some beating to the police party; but from that it cannot be safely concluded that these accused had any common object to kill the officer-in-charge and the constables.
191. In the present case the prosecution alleged more than only common object against the accused namely rescuing the 4 arrested accused from the lawful custody of the Police, deferring the polio party from discharging their Ismail duty causing hurt to as well as causing death of the police party. Several common object having been charged against the members of the unlawful assembly it is difficult to say that all the members of the said unlawful assembly except the 10 accused (named earlier) who beat the police personnel to death, had the common object of killing the police party. It cannot also be inferred from the surrounding circumstances and the nature of the weapons used by the part that the 6 accused (named above) had the knowledge that murders might take place in the occurrence. They might members of the unlawful assembly for the other common objects or common objects other than killing, as alleged by the prosecu--tion. In the absence of clear evidence, they cannot be held liable for murder with the aid of section 149, P.
192. P. C. The evidence has, however, established that these 6 accused appellants chased the police party and inflicted some injuries on them. The circumstan--ces show that although they might not have the common object of killing, they had definitely the common object of assaulting the police party, we have therefore, no manner of doubt to hold that the 6 accused appellants named above had the common object of beating and causing grievous hurts to the police personnel. We are satisfied that they caused at least grievous hurts to the officer---in-charge and the 3 constables in prosecution of their common object and they should be held liable under section 325/149, P. P. C.
193. And not under section 302/149, P. P. C. Accordingly the conviction of the accused appellants namely (1) Abul Kalam, (2) Altafur Rahman, (3) Belayet Hossain alias Milan, (4) Sirajur Rahman, (5)
194. Makku and (6) Shamsul Huq should be altered from 302/ 149 to 325/ 149, P. P. C.
195. As already stated, the learned Additional Sessions Judge has sentenced accused Abdul Latif, son of Indu Mia member, Indu Mia member, son of Late Abdul Aziz, Abdul Awal alias Abul alias Abdul Alim, son of Indu Mia member, Indu Mia, son of Altar Ali Raji and Mukhlesur Rahman under section 302/149 to death. The charge being one under section 302/149 which speaks of vicarious or constructive liability, it will not be expedient award a sentence of death. The evidence in this case is of general nature that the rioters were armed with doas, lathis etc., there is no specific evidence which of the accused held and used that weapon in beating the officers to death. In view of this evidence none can be specifically held responsible for the murder but each one of them can be vicariously or constructively held liable for the murders of the officer-in-charge and 3 constable as the evidence shows that they beat them to death. It is further to be mentioned that Indu Mia member is a man of 70 nears an Abdul Latif and Abdul Alim are his to sons who have been sentenced to death. His to other sons, namely, Abdul Khaleclue alias Hiron and Belayet Hossain alias Milon have sentenced to transportation for life. Hence we think that the sentence o death imposed by the learned Judge should be commuted to on of transportation for life.
196. So far as accused Abdul Awal, son of Abdur Rab Abul Khair, Mafizur Rahman, Abdul Jabbar and Abdul Khaleque alias Hiron are concerned there is no reason to interfere with their convictions under section 302/149, P. P. C. And sentence of trans--portation for life.
197. In the result the reference made by the learned Additional Sessions Judge is hereby rejected and the appeal of accused appellants Abdul Latif, Indu Mia member, Abdul Awal alias Abul, Indu Mia, son of Altaf Ali Haji and Mukhlesur Rahman is dismissed with commutation of their sentence of death to transpor--tation for life.
198. The conviction and sentence of transportation .For life under section 30.2/149 of accused appellants Abdul Khaleque alias Hiron, Abdul Awal, son of Abdur Rab, Abul Khair, Mafizur Rahman and Abdul Jabbar are affirmed and their appeals stand dismissed.
199. The conviction under section 302/149 of Altafur Rahman, Belayet Hossain alias Milon, Shamsul Huq, Abul Kalam, Serajur Rahman and Makku is altered to a conviction under section 325/ 149, P. P. C.
200. And sentence of transportation for- life to one of 5 years' rigorous imprisonment. Their appeal also with modification of conviction and sentence stands dismissed.
201. The convictions of the above 16 accused appellants under other charges are affirmed.
202. The appeal of accused-appellants Abdul Aziz alias Abdul, Rustom of Tunnibbanga, Rustom of Shreehasya, Bechu Mia, Idris, Safar Ali and Sekandar is allowed. They are, found not guilty of the charges framed against them. Their convictions and sentence are hereby set aside and they are acquitted of the charges against them and it is directed that they be set at liberty at once if not wanted in any other connection.
203. ABDUL HAKIM, J.--I agree.