1. NURUL ISLAM, J.-The to accused persons Nabir Hossain alias Chota Abu and Maina Miah, were convicted under section 302/34 of the Pakistan Penal Code and were sentenced to transportation for life by the Sessions Judge, Sylhet by his order passed on 31-3-66; and the accused persons thereafter preferred the instant appeal before us against the said order of conviction, and sentence.
2. The prosecution case, in short, is that at about 11 p.m., on the night of Wednesday, the 10th Kartick 1372 B. S., the deceased Abdul Mannaf cried out, and hearing the cry Aiman Chand Bibi, an inmate of the but contiguous to that of the deceased came out with a burning kupi lamp in her hand and saw the accused Chota Abu and Maina running away, Chota Abu having a torch light in his hand and Maina with a big dao in his hand. The said woman raised a cry and Jaheda Khatoon, the step- mother of the deceased also came out to the courtyard of the house and saw the to accused running away. It is further alleged that both these women entered the but of the deceased Mannaf and found hint lying on the Chouki with a big bleeding injury on his head, ear and nose and on seeing them Mannaf cried out and said that Chota Abu and Maina had killed him. Thereafter Intaz Ali, Karim, Hamid, Jabbar, Amir Hossain, Miadhan. Rajjab Ali and others rushed in. The said persons were told by the to women that they had seen the to accused running away and that Mannaf also told them that Chota Abu and Maina had killed him. One Doctor Ashrafuddin was called and he rendered first aid to the injured Mannaf who succumbed to his injuries just before the Ajan for Fazar prayer. It is also stated that the Jhap of the kitchen was found with its rope cut.
3. One Miadhan, a nephew of the deceased Munnaf lodged, the First Information Report and after investigation in the case charge-sheet was submitted by the police against the accused persons.
4. The prosecution has also alleged that the deceased Abdul Mannaf had illicit connection with the wife of the accused Chota Abu and out of grudge the accused Chota Abu with the help of his friend Maina committed the offence. After the preliminary enquiry held by a Magistrate, Ist Class, Habiganj, the accused persons were committed to the Court of Sessions where they stood their trial on a charge under section 302/34 of the Pakistan Penal Code.
5. The accused persons pleaded not guilty of the charge and from the trend of cross-examination the defence case appears to be that the accused persons were falsely implicated in the case.
6. The trial was held with the aid of three Assessors who all unanimously found the to accused persons not guilty of the charge framed against them. The learned Sessions Judge disagreeing with the unanimous opinion of the Assessors convicted and sentenced the accused persons as stated above.
7. We have heard the learned Advocates on behalf of the appellants and the State at length and perused the judgment of the learned Sessions Judge and carefully examined the records and material evidence thereon.
8. Mr. Abdus Salam Khan, the learned Advocate for the appellants submits that in this case the evidence is to meagre to call for a conviction and his main contention is that the learned Sessions Judge had drawn an inference on a very material point without referring to the material evidence in that regard. It appears that the case on the point of recognition of the accused as found by the learned Sessions Judge, is based on the oral dying declaration alleged to have been made by the deceased Abdul Mannaf and the evidence of P. W. 2 Aiman Chand Bibi and also on the evidence of Jaheda which has been put under section 33 of the Evidence Act.
9. Before I dilate upon the merits of this appeal, we would like to mention here that the learned Sessions Judge really approached the case in the manner which cannot be appreciated and this will be evident from his observation which runs as follows :- "Whoever might be the assailant or assailants, it is quite sure that he or they must have made themselves sure that be or they are riot frustrated in their object and in that view of the case, it is quite reasonable to assume that he or they must have used some sort of light in order at least to see the position of the victim so that the blow that may be given to the victim did not miss its aim."
10. 1n developing his point Mr. Salam Khan has rightly contended that the question of recognition has to be considered with reference to whatever evidence is available in that behalf and certainly not on an inference to be drawn without any basis as it has been done by the learned Sessions Judge in this case. Mr. Salam has, on the other hand, pointed out that a very strong circumstance arising out of the nature of injury on the person of the deceased Mannaf would really show that there was no light which could enable the deceased or anybody else to recognise the assailants. The injury which has been described by P. W. 14 the Assistant Surgeon, Habiganj, in his evidence as follows: "One big incised wound starting the left side of head obliquely 6-- x 1 bone deep cutting the left ear at the middle and bridge of nose and left cheek caused by a sharp-cutting weapon such as a dao."
11. With reference to the said evidence quoted above the learned Advocate submits that generally in such case the throat is cut when murder is committed during night but the injury found by P. W. 14 would indicate that the blow was given in darkness. It is in evidence of P. W. 2 Aiman Chand Bibi that the night of the 10th Kartick was a very dark night. If it is a dark night when the offence is alleged to have been committed the question of recognition has to be considered with much care, particularly, when it is the case of the prosecution that only P. W. 2 Aiman Chand Bibi and Jaheda came out immediately after hearing the cries of the deceased Abdul Mannaf. P. W: 2 in her evidence has said that she was dozing on the jainamaz after performing the Esha prayer at 11 p.m.
12. When she heard the cry of the deceased Abdul Mannaf and came out with a burning kupf in her hand. In the villages 11 o'clock at night is not the the when generally the villagers say their Isha prayer. However, it is very difficult to believe P. W. 2 when she says that she came out with a burning kepi immediately after she heard the cry of the deceased. Even if it is true that her but was to the contiguous north of that of the deceased, it is very difficult to believe that she could come out at once with a burning kupi in her hand after hearing the cries of deceased and recognise the assailants. It is not the case that she recognised the assailants by the light of torch. It is also very difficult to believe that Abdul Mannaf could recognise the assailants by the torch light which was focussed at him without giving an opportunity to the deceased to recognise them by the light of the said torch. Moreover, the accused were not seen running away with the torch light or at least there is no evidence to that effect. So, excepting the burning kupi mentioned by P. W. 2 there is nothing in evidence which would make the story of recognition of the assailants in the dark night of occurrence believable. On this point of recognition the prosecution, of course, has put into evidence of Jaheda under section 33 of the Evidence Act. According to the said evidence of Jaheda it appears that the deceased Mannaf is her sister's son. From her evidence it does not appear how she could recognise the to accused--appellants. She does not say that she recognised the accused--appellants by the light of the burning kupi in the hand of P. W.
2. Her evidence in this respect is to the following effect "I found P. W. 1 also coming out with a kupi lamp in hand. This is that kepi lamp Exh.
1. I found accused Chota Abu and Maina running away towards north and accused Maina was having a dao in his hand and accused Chota Abu was having a torch light. We entered into the but of the deceased through the open door."
13. At least she does not say by what light she could recognise the to accused persons. In her cross- examination she says "I was not asked by anybody, if I recognised the accused," although in her examination-in-chief she says that she and Aiman Chand P. W. 2 stated to the persons who came after the occurrence that they recognised the accused persons while they were running away.
14. Moreover, it is rightly pointed by Mr. Salam Khan that there is no statement in the first information report to the effect that the said witness Jaheda told any body that she also recognised the accused persons. So it is very difficult to rely on the evidence of Jaheda that she actually recognised the accused persons.
15. P. W. 1 Miadhan who lodged the First Information Report, said that Aiman Bibi told her that she recognised the accused persons by the light of the burning kupi in her hand. This witness is the relation of the deceased and ire sirrply says that he found the lighted kupi in the hand of Aiman Chand Bibi and that there was no second light there. There is no other witness who is said to have recognised these accused persons. All the other witnesses came after the assailants fled away. In this connection I may also refer to the evidence of the Investigating Officer P. W.
13. In cross- examination P. W. 13 says; "P. W. Ful Mia did not state to me that Jaheda made any statement to him. He did not also state that Aiman Chand stated at night that she saw the to accused running away. This witness Ful Mia P. W. 4 in cross-examination says : "I did not state to the I/O that Jabeda did not make any statement to me."
16. P. W. 13 has also stated in cross-examination that P. W. 8 Rajab Ali did not even name Jaheda to him. Of course this P. W. 8 in his cross-examination said, "It is not a fact that I did not state to the I/O that Aiman Chand made any statement to me at night." In this case as I have already stated above, P. W. 3 Intaz Ali, P. W. 4 Ful Mia, P. W. 5 Hazi Amir Hussain came after the accused fled away.
17. So on the point of recognition if we cannot believe the evidence of Aiman Chand Bibi and Jaheda, there is no reason why we should believe the said witnesses who have been examined to corroborate the fact that Aiman Chand and Jaheda told them that they recognised the accused persons.
18. The next question is with regard to the oral dying declaration. Mr. Abdus Salam Khan has submitted before us that in the facts and circumstances of the case the said oral dying declaration should not be given any credit at all. As we have already stated above, it is very difficult for us to believe the case of recognition of the to accused persons by P. W. 2 Aiman Chand Bibi and Jaheda. The oral dying declaration in the facts and circumstances of the case and the material evidence on record has lost much of its importance. The witnesses examined in this case are interested and they have made materially discrepant and contradictory statements in their depositions. Mr. Khan has rightly pointed - out that in this case the best witness Dr. Ashrafuddin who was called for immediately after the occurrence and who rendered first aid to the injured has been withheld by the prosecution. The learned Advocate seriously urges that an adverse inference should be drawn against the prosecution for not 'examining the said important witness. It is true that Dr. Ashrafuddin who rendered first aid to the injured was the best person to testify to the alleged dying declaration, if there was any. Moreover, in this case the medical evidence shows that though the injured could speak, his voice was not clear, and it was his nasal voice and not his usual voice which could be heard at the the. Further, the evidence of P. W. 11 Abdul Mannan, the Chairman of the Union Council shows that the deceased Mannaf stated with difficulty that he suspected Chota Abu and Maina as having caused him injuries but he did not name them as his assailants. This witness of course, was declared hostile and the prosecution cross-examined the said witness. The said witness has not been in any way shaken in his cross---examination and nothing could be brought out in his cross- --examination 2o discredit him. Moreover, this witness says that he sent' a report to the Thana. In cross-examination by the defence he says, "Upendra Dutta was given by me the report to submit it to the Thana. He is alive. I wrote the report in the morning following the day of occurrence. P. Ws. Ful Mia, Rajjab Ali, Kazi Abdul Karim After Hossain, Abdul Ali Talukdar, Haji Abdul Hamid signed the report as witnesses." The said Chowkidar Upendra Dutta has not been examined by the prosecution, nor any explanation has been. Given by the prosecution for non-examination of the said Chowkidar Upendra Dutta through whom the Chairman sent the report; P. W. 4 Ful Mia :n his cross-examination says; "No Chowkidar came at night. Chairman wrote a statement but he wrote that in the morning after death. I signed that report but did not see what was written or not". P. W. 4 has thus admitted that the said report was sent by the Chairman. Non-production of said report and non-examination of the Chowkidar Upendra Dutta cast a serious doubt as to the truth of the prosecution case. From what we have observed above it is apparently clear that it would not be safe to rely on the oral dying declaration in the facts and circumstances of the case so as to arrive at a correct decision.
19. Mr. Daliluddin Ahmed, the learned Advocate appearing on behalf of the State has been candid enough to say that the oral evidence with regard- to the recognition of the accused persons as assailants of the deceased is really very meagre. After careful consideration of the material evidence on record and in the facts and circumstances of the case we are also of opinion that the prosecution' has not been able to prove its case of recognition of the accused-appellants as the assailants beyond all reasonable doubt and the accused persons are at least entitled to benefit of.
20. Doubt.
21. In the result, this appeal is allowed. The order of conviction and sentence are set aside and the accused-appellants are directed to be set at liberty at once if not wanted in any other connection.
22. A. QUASIM, J.-I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.