1. This rule is directed against the judgment passed by Mr. A. Hossain, Sessions Judge, Pabna, upholding the order passed by Mr. S. M. Hussain, Magistrate, 1st Class, Pabna convicting the accused the petitioner Abul Hossain Molla alias Hasanur Rahman, son of late Fakiruddin Molla alias Faijuddin Molla under section 353 of the Pakistan Penal Code and sentencing him to undergo rigorous imprisonment for six months.
2. The case for the prosecution, briefly stated is as follows:- On 6-12-67 at about 4 p.m. P. W. 1 Mr. M. Ahmed Bhuiyan, Sub-Divisional Engineer, Road Division, Pabna, was returning by a Government vehicle after inspection of a road and reached Banagram Bazar on the Pabna-Nagarbari Road. He was accompanied by his Sectional Officer P. W. 2 Mr. A.
3. Samad, Cleaner P. W. 8 Abdur Rahman and Driver Matiar Rahman. He found that a but was under construction on the side of the said Government road, at Banagram Bazar. P. W. 1 Mr. M. Ahmed Bhuiyan asked his Sectional Officer P. W. 2 Mr. A. S--mad to get the unauthorised structure removed. Thereupon P. W. 2 Mr. A. Samad, Sectional Officer called the labourers of the Road Division from a neighbouring labour-shed and with the help of the labourers, namely, P. W. 4 Rajab Ali, P. W.
4. 5 Gafur, P. W. 6 Toaz Ali, P. W. 7 Entaz Sheikh, etc. Proceeded to dismantle the unauthorised structure.
5. About 30/40 persons assembled there. The man who was constructing the structure prayed for the to remove this structure. At first P. W. 1 Mr. ` M. Ahmed Bhuiyan did not grant his prayer. The accused-petitioner Hasanur Rahman alias Abul Hossain Molla came forward from the crowd saying that P. W. 1 and his men had no authority to destroy the hut. The accused-petitioner raised his hand to assault P. W. 1 Mr. M. Ahmed Bhuiyan and thus obstructed him from the discharge of his duties. P. W. 1 Mr. M. Ahmed. Bhuiyan went back to his vehicle. One Mr. Hossain, a merchant of Banagrim Bazar gave P. W. 1 the name of the accused-petitioner to be Hasanur Rahman, son of late Fakiruddin Molla of village Gangahati, P. S. Santhia, Pabna. The informant P. W. I allowed the owner of the unauthorised but the to remove the but and left the place with his men. On the next day he sent the typed F. I. R. Exh. I which reached Santhia Police on 11-12-67. The Police investigated into the case and submitted charge--sheet against the accused-petitioner on 31-12-67 showing him as an absconder. The accused-petitioner was later arrested and produced before the Court on 3-5-68.
6. In all, twelve witnesses for the prosecution and three wit--nesses for the defence were examined.
7. The case of the defence is that the accused-petitioner was not present at the place of occurrence at that the. He was not identified in any test identi--fication parade by any witness. He had litigation with P. W. 9 Motahar Ali Khan who has implicated him in this case falsely out of grudge.
8. The learned trying Magistrate convicted and sentenced the accused-petitioner as aforesaid and the appellate Court upheld the order of conviction and sentence. Being aggrieved by the said order the accused-petitioner obtained this Rule.
9. Mr. P. C. Bose, the learned Advocate appearing for the petitioner argues that although the rule was initially issued by this Court only on the ground of sentence but for the ends of justice he should be heard on other grounds as well. Their Lordships of the Federal Court observed in this regard in the case of Abdus Sattar Molla v. The Crown (PLD 1953 FC 145) as follows :- `It appears to be an established practice of the High Court of Dacca not to allow any grounds to be urged in support of a revi--sion petition except the ground or grounds on the basis of which the rule has been issued in the first instance. It has been urged on behalf of the appellant that this practice is not in accordance with the requirements of law contained in sections 435 and 436 read with section 423, Cr. P. C. The point need not be decided for the purposes of the present case, but it cannot be denied that there is considerable force in the contention that having regard to the very wide powers which the High Court may exercise under section 439 read with section 423 after perusal of the record and after hearing the petitioners, the practice of confining the High Court's attention at this stage of the case to such matters as attracted the attention of the Benoh which admitted the petition and which had nothing but the judgments of the Courts below upon which to go, entails a danger that points may be over--looked which very seriously affect the justice of the case."
10. In view of the above observations of the Federal Court the learned Advocate for petitioner is permitted to argue on other grounds as well.
11. Mr. P. C. Bose, the learned Advocate for the petitioner argues that the judgment of the appellate Court is not a proper judgment within the meaning of section 367, Cr. P. C. Inasmuch as the appellate Court accepted the prosecution case without disbelieving the evidence given by the defence witnesses and also failed to consider the evidence given by the eye-witnesses P. W. 10 Md.
12. Kobbad Mia and P. W. 11 Asgar Ali who did not support the prosecution story that the accused- petitioner tried to assault the informant P. W. I Mr. M. Ahmed Bbuiyan. He also argues that the appellate Court did not consider the fact that the petitioner who was not known to the informant and his men from before was not placed in a test identification parade. On a perusal of the judgment of the appellate Court I find that there is substance in the points raised by the learned Advocate for the petitioner. The appellate Court did not consider the evidence given by P. W. 10 Md.
13. Kobbad Mia and P. W. 11 Asgar Ali and failed to notice the fact that P. W. 10 Md. Kobbad Mia and P. W.
14. 11 Asgar Ali did not support the prosecution case against the accused-petitioner. P. W 11 Asgar Ali does not state that he found the accused-petitioner at the place of occurrence, P. W. 10 Kobbad Mia states that the accused-petitioner merely requested the informant P. W. 1 not to dismantle the hut. He does not state that the accused-petitioner raised his hands or tried to assault the informant P. W. 1 in any manner. The appellate Court remained under an erroneous impression that P. W. 10 Md. Kobbad Mia also supported the prosecution case. It further appears that the appellate Court did not disbelieve the evidence given by the defence witnesses but merely felt inclined to convict the accused-petitioner on the basis of prosecution witnesses. The appellate Court also did not consider the question that no test identification parade was held although the accused- petitioner was not arrested at the spot and was not known to the informant P. W. 1 and his men from before. These are, however, all grounds for rehearing the appeal. It will be presently seen that the accused-petitioner is entitled to be acquitted of the charge brought against him.
15. Mr. Bose, the learned Advocate for the petitioner has argued that the conviction of the accused- petitioner under section 353 of the Pakistan Penal Code is bad in law as the essential ingre--dients of the said offence have not been proved by the persecution. He goes on to argue that it was not the duty the infor--mant P. W. 1 to dismantle any construction even if it was unauthorised. If the informant P. W. 1 was of the view that any one had erected any structure encroaching upon the Govern--ment land, he could merely report the matter to the Provincial Government and necessary action in accordance with the pro--visions of law such as the provision of section 5 of the East Bengal Government Lands and Buildings (Recovery of Possession) Act, 1952 could then be taken by the Government. The learned Advocate for the petitioner therefore argues that even if the whole prosecution case is accepted to be true, the accused-petitioner cannot be convicted under section 353 of the Pakistan Penal Code as he did not assault to or use criminal force to the informant P. W. 1 while he was acting in discharge of any duty imposed by law on him as a public servant. Mr. A. T M. Afzal, the learned Advocate appearing for the State concedes that strictly speaking it was not the duty of the informant P. W. 1 to dismantle the but in question. He however; argues that the said public servant, namely, the informant P. W. 1 must be deemed to be acting in good faith under the colour of his office and that the accused-petitioner who assaulted the informant P. W. 1 while he was acting in good faith under the colour of his office, has been rightly convicted under section 353 of the Pakistan Penal Code. I am unable to accept this contention. It was not the duty of the informant P. W. I to dismantle any structure on the side of a Government road, even if he thought that it was an unauthorised structure. When the informant P. W. 1 proceed to dismantle the structure with the help of his men, it cannot be said that he was acting in the discharge of a duty imposed by law on him as a public servant. The words' in the execution of his duty as such public servant' in section 353 of the Pakistan Penal Code do not cover-an at which is merely done bona fide under the colour of the office of a public servant. In convicting a person under section 353, P. P: C. It must be shown that the public servant was discharging a duty imposed by, law on him. This view finds support in the case of Raman Singh and others v. Queen-Empress (I L R 28 Cal. 41) and in the case of Bolai De v. Emperor (I L R 35 Cal. 361). As the prosecution has failed to prove in the present case that the informant P. W. I was acting in the discharge of a duty imposed by law, the order of conviction of the accused-petitioner under section 353 of the Pakistan Penal Code is bad in law.
16. The Rule is accordingly made absolute. The order of con--viction and sentence passed against the accused-petitioner is set aside and he is acquitted of the charge under section 353, P. P. C. The accused-petitioner is discharged from his bail bond.