P L D 1960 Supreme Court (Pak (PLP)

" A woman is willing to go with. me of her own will ; come with me for assistance". The words in Urdu are "meri madad karo". Then Muqarrab Shah and Allah Ditta accompanied Ghulam Qadir to the house in question viz., the house of Allah Ditta. There the woman was found sleeping with her husband on the same cot. Ghulam Qadir asked Muqarrab Shah to stay outside the court-yard and gave him a stick to keep. Allah Ditta.and Ghulam Qadir went inside. Before they did so, Ghulam Qadir showed Muqarrab Shah a pistol and a knife that he was carrying. Muqarrab Shah stood by the wall from where he could see into the court-yard, and he saw Ghularri Qadir put a hand on the mouth of the husband of Mst. Fatima, who jumped up and ran towards the beds of his parents close by. On that Ghulam Qadir fired a shot with his pistol, and then he caught Mst. Fatima by the right arm and Allah Ditta took her left arm and they pulled the girl out of the court-yard. She started crying out declaring she would never go with him even if he killed her. Then Allah Ditta went over to Muqarrab Shah and took the soti from him saying it was in order to frighten the girl. At this point, Ghulam Qadir thinking that the woman had recognised him, thought it best to finish her off and so he attacked her with his knife. , As soon as the first blow was struck Muqarrab Shah and Allah Ditta ran from the spot. Later, they were joined by Ghulam Qadir, Allah Ditta left the other two, but Ghulam Qadir and Muqarrab Shah went to Kot Mela Ram Railway Station and caught the 4 o'clock train in the morning for Multan. They went to one or two places and Ghulam Qadir asked Muqarrab Shah to go to Haram Gate in Multan City where people from Luthar were accustomed to gather and find out whether the woman had died. Accordingly, Muqarrab Shah went to Haram (late and heard that there had been this murder in Luthar and that it had been committed by Ghulam Qadir. Returning Muqarrab Shah did not find Ghulam Qadir at the place where he had left him. For two days he went about from place to place thinking what he could do and finally deciding that he had no escape, he went and gave the secret to Faiz Bakhsh who took him to the thana and so he came to make his confessional, statement. The first point to note about the statement is the declaration that Muqarrab Shah went to the police of his own accord and not because he was being pursued or sought for. The second fact is that Muqarrab Shah was so completely unconnected with the cause of the murder that he was a person who was never likely to be implicated upon a guess. The third fact is that all the circumstances which led to his association with Ghulam Qadir and the other man in this crime came on the record from Muqarrab Shah's own mouth. The fourth point to notice is that even his statement that he did not join in holding the woman when she had been brought outside the court-yard, finds a measure of support from the other evidence on this point. That is, though the witnesses in Court appear to say that Muqarrab Shah also held the woman in the first information report, this important circumstance is not mentioned. Finally, the evidence of Allah Wasaya, a disinterested witness, clearly supports the statement of Muqarrab Shah that very shortly after the commission of the crime he travelled with Ghulam Qadir to Multan by train. The plea taken by Muqarrab Shah in the confession was in substance, that while he had agreed to join for the purpose of helping Ghulam Qadir to get the girl away from the custody of her husband, he was no party to the intention which formed in the mind of Ghulam Qadir on the spot to do away with the girl by killing her, and in support of this he said that immediately the first blow was struck he himself ran away. Therefore, to, exonerate him in relation to the charge of murder is perfectly logical and correct, but to say that his statement is wholly "self-exculpatory" is equally clearly incorrect. The learned Judges in the High Court were conscious that he could be thought to have some responsibility in relation to the act of abduction which continued from the time the girl was snatched from the bed up to the time when the fatal assault was commenced upon her, but because they were unable to hold that Muqarrab Shah held the girl at all, they came to the conclusion that he was "not proved to have taken part in the abduction, and although, if he had later helped to prevent her rescue, he would have been guilty of an offence, that stage was not reached". It being absolutely clear that abduction of the girl, who was known to the others as well as Muqarrab Shah to be. a married woman from the custody of her husband was necessarily for the purpose of either forcing or inducing her to illicit intercourse with Ghulam Qadir, when Muqarrab Shah joined in the enterprise by way of an assistant of Ghulam Qadir, he must necessarily have done so in consciousness of the fact that the coming away of the woman was not to happen automatically, but that there might be need for either use or show of force to produce that result.) When therefore, it is found that an act of abduction by force wash actually accomplished by two of the three men who went inside the court-yard to do it, while the third man stood outside the court-yard to give such assistance as might be necessary for accomplishing the abduction, even though he had no intention of joining in any crime more serious than abduction, the question before the High Court really was-do these facts constitute Muqarrab Shah a participant in the act of abduction ? We entertain no doubt that the act was a joint act intended to be accomplished by the three men in co-operation with each other, and we equally feel no hesitation in saying that even though Muqarrab Shah merely stood by the outer wall, from where he watched everything and did only as much as was required from him up to the time the first knife blow was struck, he was a person engaged in the performance of the act of abduction, within the meaning of section 34, P. P. C. The point is one which received examination at the hands of the Judicial Committee of the Privy Council some thirty-six years ago in the famous case of Barendra Kumar Ghosh (52 I A 40), otherwise known as the Post Office case. The facts there were in many respects similar to those of the present case. Barendra Kumar Ghosh in his own statement said that he never entered the room in which the shooting was accomplished, but stayed outside on a portico. The other men went inside and there was some firing. He became confused and perspired heavily and hearing alarm being raised, he ran away. There was nothing in the evidence to show prior connection on the part of Barendra Kumar Ghosh with the crime, i.e., that he had instigated or aided the commission of the crime before the actual . commission began in the words of the Judicial Committee :- " The evidence on this matter was wholly supplied by the prisoner himself. His statement was that earlier in the day, when he was reclining on his couch after a meal, `one, whom he knew to be a God-fearing man and a man of learning', came and took him to a house, where he found two young men. Here he was solicited to go with them in order to commit a dacoity, and when he reluctantly consented and was shown how to use the pistol with which, like the others, he was then supplied, he stipulated that he was not to be a party to any dacoity or murder and was told there was to be no murder and he was to be there merely for show." In discussing the application to the case of Barendra Kumar Ghosh of the provisions of section 34, P. P. C., in relation to the facts found, the Judicial Committee observed as follows :- " Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes, as in other things: `they also serve who only stand and wait"'. Muqarrab Shah's acts as they appear from his confession and the' other circumstances established in the case show a very close resemblance to the facts of the case of Barendra Kumar Ghosh.1 The principle enunciated with respect to the application of D section 34 in that judgment has been accepted and followed without question ever since it was laid down, and expressing our respectful concurrence with it we are of the opinion that in this case, Muqarrab Shah's confession was a genuine confession inasmuch as it inculpated him in a completed act of abduction as a participant) therein within the meaning of section 34, P. P. C '. When the confession of Muqarrab Shah is taken into con sideration against Ghulam Qadir and it is borne in mind that it was not made as a result of any inducement or of any pressure put upon Muqarrab Shah, and that the Magistrate who recorded it was a senior and experienced Magistrate exercising section 30 powers who had satisfied himself fully that the confession was being made voluntarily, it becomes clear that the fact of this confession and the details which appear from it together with the supporting evidence of Allah Wasaya regarding the movement of Ghulam Qadir and Muqarrab Shah shortly after the occurrence provide strong support for the direct evidence of Ghulam Rasufv Allah Ditta, and Mst. Azmat regarding the principal part taken by Ghulam Qadir in the abduction and murder of Mst. Fatima. Two points were taken before us by Mr. M. Sleem as tending to cast a doubt upon the prosecution case. One of these rests upon a statement volunteered at an earlier stage in his examination-in -chief by the Investigating Officer that there was no blood under the body at the point where he found it and no marks of dragging. Mr. M. Sleem referred to the statement of a witness Ramzan (P. W. 12), who arrived at the spot in response to the alarm, that the girl was lying wounded in "pools of blood". Now, the fact was that the girl was very fully dressed. At the time, she was wearing a vest and a shirt, a loin cloth and a chaddar. None of the wounds in the chest was very large in dimension. Therefore, the likelihood was that much of the blood which escaped from these wounds would be absorbed by the clothes which she was wearing. As for the wounds on the left leg, she was wearing a loin cloth which was likely to have absorbed that blood. Moreover, it is in evidence that her relations picked her up and tied clothes around her wounds. The Thanedar did not remember to have seen any such clothes, but in all the circumstances the likelihood that some such thing was done was very strong. Again there is evidence that the girl was lifted from. the place where she had been wounded and placed on a cot, but later the advice was given that the Police would be annoyed to find that the body had been moved at all and before they arrived, the body was again placed on the ground. As for the blood on the ground, a great many persons had collected at the house and it is more than probable that during the time when the body was on the cot any blood marks on the ground would have become obliterated. Therefore the absence of blood marks either on the cot or on the ground is accounted for, but what is remarkable is that the Thanedar should have so readily within the first dozen answers given by him in examination-in-chief come out with the statement that :- "Blows on the parts of the body of Mst. Fatima would have caused gushing out of blood-spring, but I found no blood near the dead body at anyplace." As for the marks of dragging, they would undoubtedly have been obliterated by the feet of the persons coming to the house, There, seems no force in this point whatsoever. The second point taken is that the doctor declared that the food in the stomach of the deceased was half-digested. That shows that she might have taken her meals about 3 hours before she died. Against this the evidence of the eye-witnesses appears to be that the attack took place at about midnight and the girl survived till sunrise, which was about 6 a.m. and after that the relations left for the thana. Mr. M. Sleem advanced in the High Court and again before us the theory that those being the days of fasting the girl may have taken a sehri meal and gone outside where she was attacked and was later brought back to her husband's house where she died. He suggested that this would explain the absence of the blood as well. The story is. an unlikely one since the girl's marriage had taken place only recently and it was known that there was danger to her through being desired by another man as well. Therefore, it was inconceivable that she would have been allowed to go out in this fashion and it is noteworthy that no question on the point was put to her mother-in-law who would have been the proper person to be questioned on this matter. It was on these points that special leave to appeal was given and we find on examination of the record that there is no force in them. On the other hand we find that the case against Ghulam Qadir was a great deal stronger than it was made to appear from the judgment of the High Court on account of the elimination by that Court of the confession of Muqarrab Shah. We hereby dismiss this appeal. A.H. Appeal dismissed.