Before Ellis, J.
Mokhair-ud-Din Khan and others – Appellants
EMPEROR – Respondent
Criminal Appeal No. 60 of 1947, decided on 14th July, 1948.
Criminal Procedure Code (V of 1898), Ss. 296 and 423 – Head of charge as placed on record containing considerably more than what judge placed before jury – Retrial ordered.
Where the “head of charge” totaling 143 typed foolscap pages averaging 30 lines of type to a page appeared to have been compressed into so short a time as 2 ½ hours, the only inference that can be drawn is that the “head of charge” as placed on record contained considerably more than the judge placed before the jury. [p. 43].
If the charge on record is not the charge which was delivered to the jury there is no alternative but to set aside the verdict and order a retrial. In law this must be so, for an Appellate Court, in such circumstances, cannot possibly know what charge was, in fact, delivered to the jury and cannot say whether the jury were properly charged in order to enable them to return a –proper verdict. [p. 43].
A. K. Fazlul Huq, D. C. Roy and M. H. Khondkar, for Appellants
Afzal, Deputy Legal Rememberancer, for Crown.