Abu Bakr, M.S. V. The Queen

[COURT OF CRIMINAL APPEAL]

1953 Present : Nagalingam S.P.J. (President), Gunasekara J. and H. A. de Silva J.

M. S. ABU BAKR, Appellant, and THE QUEEN, Respondent

APPEAL NO. 11 OF 1953

S. C. 46-M. C. Colombo, 24,048

Evidence Ordinance-Speech delivered at public meeting-Electrically recorded and reproduced by instrument-Admissibility-Sections 11, 159, 160.

Sedition-Attempt to promote feelings of ill-will and hostility between different classes of the Queen's subjects-Meaning of term " class "-Misdirection-Penal Code, s. 120.

In a prosecution under section 120 of the Penal Code, the charge against the accused was that he did, by means of certain words spoken by him during the course of a speech delivered by him at a public meeting, attempt to promote feelings of ill-will and hostility between different classes of the Queen's subjects. The indictment did not state what were the different classes that were contemplated in the charge. It was, however, stated to the jury by the prosecuting counsel that the classes were " capitalists " and " workers " respectively.

The prosecution adduced evidence to the effect that the speech in question was electrically recorded, and subsequently reproduced, by means of an instrument called the Webster wire recorder, and that when it was reproduced it was taken down in writing by a witness, W.

Held, (1) that the speech that was alleged to have been reproduced in witness W.'s hearing by means of the instrument was a fact that, in connection with the other facts alleged by the prosecution witnesses regarding the making of the speech by the accused and the recording and reproduction of it, made it highly probable that the accused made a speech in the same terms on the

occasion, in question. Therefore, if it was not a fact that was otherwise relevant, it was relevant under section. 11 of the Evidence Ordinance; which provides that facts not otherwise relevant are relevant if by themselves or in connection with other facts they make the existence of any fact in issue or relevant fact highly probable.

(ii) that it was open to witness W. to give oral evidence of the words that were reproduced in his hearing by means of the instrument, using the writing that he made at the time of the reproduction to refresh his memory (Evidence Ordinance, section 150).

(iii) that an attempt to promote feelings of ill-will and hostility between different classes of the Queen's subjects cannot come within section 120 of the Penal Code unless the classes are reasonably well-defined, stable and numerous; and it is a question for the jury in each case whether a given class has these characteristics and is therefore a class that is contemplated by the section.

APPEAL against a conviction in a trial before the Supreme Court.

Izadeen Mohamed, with K. C. Kamalanathan and A. S. Vanigasooriyar, for the accused appellant.

H. A. Wijemanne, Crown Counsel, with N. T. D. Kanakaratne, Crown Counsel, for the Crown.

Cur. adv. vult.

April 10, 1953. GUNASEKARA J.-

The appellant, Mohamed Salem Abu Bakr, was convicted of an offence punishable under section 120 of the Penal Code and sentenced to six months simple imprisonment. The charge alleged that on or about the 5th June, 1951, he did by means of certain words spoken by him during the course of a speech delivered by him in Sinhalese at a public meeting held at the Municipal Playground at Dematagoda, " attempt to promote feelings of ill-will and hostility between different classes of the King's subjects ". The appeal was pressed on grounds of misreception of evidence and misdirection.

The prosecution adduced evidence to the effect that the speech in question was electrically recorded, and subsequently reproduced, by means of an instrument called the Webster wire recorder, and that when it was reproduced it was taken down in writing by an officer of the Criminal Investigation Department, named Wije

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