DIVISION BENCH
Before Ellis, and Ispahani, JJ.
SULTAN AHMAD and two others –Accused – Appellants
versus
THE CROWN– Respondent

Criminal Appeal No. 66 of 1949, decided on 6th January, 1950, from the order of Sessions Judge of Noakhali.

(a) Criminal Procedure Code (V of 1898), S. 288 – Sessions Judge allowing defence to put in statements of witnesses recorded by committing Magistrate – Witnesses neither examined nor produced in Session Court – Procedure erroneous.
Section 288 allows evidence recorded in an enquiry to be put in and treated as evidence in the Sessions trial provided such witness is produced and examined. There is no provision of law which allows a Sessions Judge to take in under section 288 the evidence of witness in the committing Court when that witness is neither produced nor examined in the Court of Sessions. [p. 29].
Where the Sessions Judge allowed the defence to put in under section 288 of the Code the statements of nine witnesses who were examined and declared hostile in the committing Court,
Held that the Sessions Judge had erred in law in admitting such statements as evidence under section 288 Criminal Procedure Code.
(b) Criminal Procedure Code (V of 1898), Ss. 297,423(2) – Judge using strong and emphatic language in charge – Personal feelings – Making assumptions not proved by evidence – Misdirection.
A. K. Fazlul Haq, and A. K. M. Baquer, for Appellants.
A. S. Choudhury, for Deputy Legal Rememberancer for Crown.