1968 P Cr (PLP)

A. SUBHAN CHOUDHURI, J.‑The 4 appellants before us, namely,

1. Abdul Aziz alias Geda,

2. Aziz Khan,

3. Sabur Khan and

4. Sharif have been convicted under sections 307/34 and 460 of the Pakistan Penal Code, and while appellant No. 1 has been sen tenced to rigorous imprisonment for 7 years under section 307/34, appellants Nos. 2 to 4 have been sentenced to rigorous imprison ment for 4 years each under the said section. No separate sentence has been passed on any of the appellants under section 460 of the Penal Code. The prosecution case is that on the night of Thursday the 1st Aswin, 1371 B.S. at about 3 or 3‑30 a.m. complainant Md. Ali Newaj suddenly received a stabbing blow on the chest. He woke up and cried out. He at once saw appellant Abdul Aziz alias Geda pulling out the dagger after the stabbing blow from his person and also the other 3 appellants standing beside him. Sharif had a Kiris in hand while Sabur Khan and Aziz Khan had lathis. On complainant's cry his wife P. W. 2 Fulbahar and his sister‑in‑law P. W. 7 Dilbahar got up and they also recognised the appellants. P. W. 12 Abdul Khaleque alias Badsha served in their house and he also woke up and recognised the appellants. P. W. 2 Fulbahar caught hold of Abdul Aziz who gave her a kick and went away leaving behind the dagger Exh.

1. When neighbours came being alerted by the alarm the eye‑witnesses narrated the occurrence to them nam ing the appellants as the persons whom they recognised. The complainant was then taken to Thana on a cot where he lodged First Information Report at 5‑10 a.m. producing the dagger Exh.

1. From the Thana the complainant was sent to Mitford Hospital where he was admitted and treated for more than a month during which period he was unable to follow his ordinary persuits. P. W. 6 A. S. I. Abdul Jalil took preliminary steps and seized alamats from the complainant's but by preparing a seizure list. P. W. 14 S. I. Liaquat Hussain took up the investi gation of the case and ultimately submitted charge‑sheet against the appellants and another. According to the prosecution there has been enmity between the complainant and the accused persons and out of that enmity the latter committed this offence with intent to murder him. The defence of appellant Sharif was that he serves as a Seranj in I. G. N. and R. S. N. Co. and was on duty at that time; thus his is a plea of alibi. The other appellants also pleaded not guilty and contended that they were falsely implicated in the case taking advantage of the incident. It was also suggested that the complainant created enemies all around by writing false deeds and by acquiring properties fraudulently and that he suspected Badsha of Barisal as having illicit connection with his sister‑in‑law Dilbabar and turned him out after this incident. The trial was held with the aid of 3 assessors all of whom were of the opinion that the appellants are not guilty of the charges welled against them. 15 P. Ws. and 3 D. Ws. have been examined in support of the respective cases of the prosecution and the defence. There are 4 eye‑witnesses to the occurrence namely, P. W. I the complainant, his wife P. W. 2, his sister‑in‑law P. W. 7 and his servant P. W.

12. P. W. 1 has graphically described the incident. His evidence is that in the night of occurrence himself, his wife, his sister‑in‑law and the servant Abdul Khalique were sleeping in their north viti but with some minor children by closing the door and keeping a hurricane lantern burning. At about 3 a.m. he woke up on receiving a stabbing blow on the chest and cried out and at once saw Abdul Aziz alias Geda pulling out the dagger after giving the stabbing blow and also found Aziz Khan, Sabur Khan and Sharif standing by his side. Of these 3 appellants Sharif was armed with Kiris (a sharp‑pointed dagger) and Aziz Khan and Sabur Khan had lathis in hand. He recognised the appellants in the light of burning hurricane. His wife got up and caught hold of Abdul Aziz alias Geda who kicked her off. His wife, sister‑in‑law and the servant also recognised the appellants and reported the fact of recognition to him and others who assembled after the occurrence. He has further stated that he was taken to Thana which would be a little more than a mile from his house on a cot and lodged First Information Report with the Police. The occurrence has been described exactly in the same manner by the other 3 eye‑witnesses, his wife, his sister‑in‑law and his servant. P.W.2 Fulbahar has specifically stated that she caught hold of Abdul Aziz but he pushed her aside and she also recognised the other 3 appellants by the light of burning hurricane. Her evidence also shows that Sharif bad a Kiris in hand and the other 2 had lathis in their hands. According to bar the dagger Exh. 1 fell from the hand of Abdul Aziz when he was caught hold of by the witness. It has been elicited in her cross‑examination that their dwelling but would be about 27 cubits in length without any fencing inside the but and they were sleeping on the floor. She also stated that appellants had no, paint or covering on their faces. It has further transpired in her evidence that 20/25 persons including women came to by this witness is that Shari f threatened her with death at the time of his departure after she had caught hold of Abdul Aziz. Her further evidence is that she knew the names of Sharif since 3/4 months before the occurrence. P. W. 7 Dilbahar has stated that she also slept inside the but of the complainant and woke up on hearing the latter's cry. She immediately saw all the 4 appellants running out of the but and P. W. 1 lying with bleeding stab injury. She also claims to have recognised the appellants in the light of the burning hurricane, Exh. IV. She has fully supported P. Ws. 1 and 2 and stated that her sister tried to catch Geda but she was "warded off". She denied knowledge about there being any servant named Badsha of Barisal in the house of complainant at the time of occurrence. She emphatically denied the suggestion of the defence that there was a servant named Badsha of Barisal and that people spoke of illicit connection between her and the said Badsha and that P. W. 1 suspected him of having been responsible for this incident and dismissed him thereafter. It has been brought out. in her cross‑examination that she mostly resides in heat husband s house which is 2 miles off from her paternal house and that she came to the house of the complainant only 2 days before the occurrence. The evidence of P. W. 12 Abdul Khalique altars Badsha is that he hails from the district of Dacca and at the time of occurrence he was a servant of the complainant. On the relevant night he slept inside the dwelling .hut of P. W. 1 along with others. It has come to light in his cross‑examination that P. W. 2 caught hold of Geda but she was "warded off" and the accused left. This witness has stated that he served the complainant for a continuous period of 8, years till after his return from Hospital. He did not state to the Investigating Officer that he is also called Badsha. It has transpired in his cross‑examination that the complainant slept on the southern side of the hut at the middle and he slept near the leg, of the complainant and the wife and sister‑in‑law of the complainant slept about 1 cubits south of the complainant. This witness has lent support to the state ment of Dilbahar that she came to that house only 2 days before the occurrence. The eye‑witnesses of the occurrence as mentioned above have received full corroboration from P. W. 3 Abdul Malek, P. W. 4 Kamaluddin Munshi, P. W. 5 Tamizuddin Madbar, P. W. 10 Kala Chard Mia and P. W. 11 Balaram Das. All these witnesses have armed that the complainant, his wife and sister‑in‑law mentioned the names of the appellants as having been recognised by them. P. W. 3 Abdul Malok is brother of Fulbahar, the wife of the complainant but resides close by P. W.

4. Kamaluddin Munshi is Imam of the local mosque and a close neighbour. P. W. 5 Tamizuddia Madbar is cousin of P. W 4 and both of them are uncle‑in‑law of appellant Abdul Aziz alias Geda. P. W. 10 Kale, Ghand Mia is a tenant under the complainant. P. W. 11 Balaram Das who belong to a different community has got no obligation to the complainant or enmity with the appellants. No Investigation was given as to why he would come to perjure himself against the appellants. P. W. 4 being the Imam of the local mosque should be considered an independent and responsible witness. The only suggestion thrown at him was that he had grudge against prostitute Begum and those who helped Begum to purchase the house close to his. It appears that the 4 appellants are pimps of Begum. It was elicited from this Imam of the mosque that Aziz Khan and Sabur Khan help prostitute Begum. There is a clear admission of appellant Sabur Khan in his state ment under section 342 of the Criminal Procedure Code that "I worked as helper of Begum". We have carefully perused the evidence of P. W. 4, the Imam and we are, satisfied that he is a witness of truth. P. W. 5 Tamizuddia Madbar is, also an absolutely disinterested witness inasmuch as the fact that he is a cousin of the Imam dales not affect his veracity in the least because the Imam himself is a disti4terestod witness. Mr. M. A. Rouf submitted that the whole prosecution story is liable to be disbelieved because of the fact that it is most unnatural that the complainant would live in the same hut with his wife, sister‑in‑law and a servant. We should remember in this connection that there is even no suggestion that the complainant has any other hut except the one in which all of them slept on the relevant night. We have got in evidence that the hut is 27 cubits long. It is a small shed and necessity knows no bounds. A poor man is often forced by circumstances to live in the same hat, even in the same room not only with his wife, sister‑in‑law and servant but also sometimes with daughters, sons‑in‑law, father‑in‑law, mother‑in‑law. There is thus no absurdity in the prosecution case that P. Ws. 1, 2, 7 and 12 slept in the same hut without any fencing inside it. Mr. Rouf has laid great stress on a statement of P. W. 10 Kala Chand Mia that when he and Shahed Ali went to complain ant's house at first they did not hear the name of any miscreant being uttered by any of them and when he went there again about an hour, the names of the appellants were disclosed. From this statement the learned Advocate wants us to believe that the naming of the appellants by the complainant and others is an after‑thought. The evidence of Kala Chand shows that as soon as he came to the house of the complainant P. W. 2 Fulbahar, the complainant's wife asked him to call her brother Abdul Malek, Sardar Newaz Ali and Taru Matbar and that at that time none reported the names of the miscreants to him. After his return the witness found several other persons already assembled there and the names of the appellants were disclosed in the meantime. Considering that Kala Chand Mia was merely a tenant of the complainant and not a man of importance it is nothing unnatural that P. W. 2 would immediately send him to call for brother and others rather than disclosing the names of the miscreants to him then and there. The evidence of Kala Chand has not, therefore, damaged the prosecution case in the least. P. Ws. 1, 2, 7 and 12 are the most natural and competent witnesses to depose to the occurrence. As pointed out above they have been amply corroborated by several witnesses including disinterested arid independent persons such as the Imam of the local mosque, P. W. 5 Tamizuddin Madbar, P: W. 10 Kala Chard, Mia and. P. W. 11 Balaram Das. Defence led evidence to prove the innocence of appellant Sharif and also non‑complicity of the other appellants in the occurrence. D. W. 1 Sona Mia has deposed that being an employee under the I. G. N. and R. S. N. Co. at Narayanganj he was on duty as crew in P. R. S. Barge No. 266 of which, appellant Sharif was the Seranj and on the night of occurrence also Sharif was on duty for the whole night. In cross‑examination he has stated that he has got a book to show that he was a crew of the barge but he did not bring it. He further stated that there was no office record to show the duty hours of himself or the Seranj. There is also no note any where of their duty hours. In his statement under section 342 of the Criminal Procedure Code appellant Sharif said "I do produce the duty Roster" but the fact is that do such duty Roster was produced in Court. It is very easy to procure a man like D. W. 1 say things as desired by a particular party without producing a single paper in support of his verbal statement. Considering that attendance Register or duty Roster is expected to be kept in ordinary course of business in an established company like the I. G. N. and R. S. N. Co. We do not see our way to accept the evidence of. D. W. 1 and as such we reject the plea of alibi of Sharif. D. W. 2 Badsha Mia and D. W. 3 Razzak Fakir have stated that they visited the house of the complainant after the occurrence but he could not mention any name of their query nor was any name mentioned by any other inmates of the house. D. W. 2 was constrained to state in his cross‑examination that he met the Daroga on the day following the occurrence but he did not tell him anything as he was not asked. This is a very flimsy excuse for not bringing the important fact to the notice of the Investigating Officer seeing that he met him on the day following the occur rence. D. W. 2 is directly contradicted by D. W. 3 who has stated that the complainant was unconscious at the time he visited the complainant's house. This is a story which is not borne out by any other witnesses either for the prosecution or for the defence. Even the doctor who examined the complainant has not said that the complainant was or would be unconscious on receipt of such an injury. We are unable to accept any of the D. Ws. as a truthful witness. The complainant was examined by P. W. 15 Dr. Q. M. A. Hasnath on 19‑9‑64, that is, the very date of occurrence at 7‑45 a.m. He found one bleeding incised looking wound of about 1" x 1/8' x depth up to percadial cavity in the 5th inter coastal space just to the right of the sternum. It was a grievous injury and might have been caused by a knife or dagger like Exh.

1. The severe nature of the injury is found from this medical evidence. It has been urged by Mr. Rouf that the name of Sharif not mentioned such as in the First Information Report and that P. W. 2 Fulbahar and P. W. 7 Dilbahar did not specifically mention his name to the Investigating Officer. The evidence on record shows that this Sharif was Darwan of prostitute Begum. Although his name did not find specific mention in the First Information Report it was stated therein that the Gate‑keeper of Momta Begum of Narayanganj was recognised has one of the miscreants. Though P. Ws. 2 and 7 did not mention Sharif's name before the Investigating Officer his name was mentioned by the other 2 eye‑witnesses who have been corroborated by the other witnesses who came to complainant's house and to whom their names were mentioned by the eye‑witnesses. The non- mention of Sharif's name by P. Ws. 2 and 7 before the Investiga ting Officer does not take away the value of his recognition by the other 2 eye‑witnesses and the evidence of the corroborative witnesses. Mr. Rouf has attacked the judgment of the Court below on yet another ground, namely, that the trial Court did not properly formulate the points for determination in this case. It is true that the learned Additional Sessions Judge formulated only one point for determination and it runs as follows :‑ "Point for consideration therefore is whether each of the accused persons is guilty of the offence charged." It must be conceded that it was not the proper way of formulating appropriate points required for determination. The learned Judge would have done well in formulating the necessary point for determination with reference to the charges laid against the appellants. But a close scrutiny of the judgment as a whole reveals that all the points that were required to be considered by the trial Court have actually been considered and findings have been recorded thereon. The judgment, therefore, cannot be said to be defective on this score. Lastly, Mr. Rouf argued that the conviction under section 460 of the Pakistan Penal Code is not sustainable inasmuch as the Court below did not apply its mind to the ingredients of the said section and come to any positive finding. His contention is that the appellants or any of them did not voluntarily cause or attempt to cause grievous hurt to the complainant at the time of commit ting house‑breaking by night. On this point also we are unable to see eye to eye with him. To substantiate a charge under section 460 of the Penal Code the prosecution has to prove (1) that the accused committed lurking house‑trespass by night or house‑breaking by night; (2) that he caused or attempted to cause death or grievous hurt; and (3) that he did so whilst engaged in committing lurking house -trespass by night or house‑breaking by night. If death or grievous hurt were caused after the lurking house‑trespass by night or house‑breaking by night had been completed then the case would not come within the mischief of section 460 of the Pakistan Penal Code; but in the instant case the injury was caused during con tinuance of the lurking house‑trespass by night or house‑breaking by night. So long as the miscreants were inside the raided house the act of lurking‑house trespass by night continued. The medical evidence leaves no room for doubt that grievous hurt was caused to the complainant; such grievous hurt was caused during the continuance of the house‑trespass and house‑breaking by night. We 'are satisfied that the appellants have been rightly convicted under section 460 of the Pakistan Penal Code. The prosecution has proved beyond doubt by overwhelming evidence on record that while the complainant was sleeping inside his dwelling but he was suddenly attacked at dead of night by the appellants and was given a stabbing blow with a dagger by one of them, while the other appellants stood by him armed with lathis and kiris. Having regard to these circumstances and the hour when this crime was perpetrated it can be safely concluded that the common intention of all the appellants was to cause the, death of the complainant, and had their nefarious design succeeded they would have been guilty of murder. The charge under section 307/34 of the Pakistan Penal Code has also been brought home to the appellants. In the result, the appeal is dismissed and the order of connections and sentences of the appellants is affirmed. The appellants shall now surrender to their bail bonds and serve out the remainder of their sentences. ABDUL MOUDUD, J‑ I agree. Appeal dismissed.