P L D 1966 Dacca 305 (PLP)

P. W. 6 Ali Ahmed saw Dr. Mannan going to the house of appellant Sattar in a black car at about 4 p.m. P. W. 6 : "When I was entering into the house of Mannan Dobash I found Dr. Mannan (identified) going to the house of Sattar Dobash in a black car . . . . . . I then found Sattar and Mokhlesur Rabman coming towards the office from the house of the Anglo Pakistani wife of Sattar." P. W. 3 also saw this. Thereafter P. W. 6 saw Sattar and Mokhles coming towards the office from the house of the Anglo Pakistani wife of Sattar. P. W. 10 saw Mokhles and Sattar going to the house of Sattar shortly after 4 p.m. P. W. 10 :"I saw Mokhlesur Rahman and Sattar (identified in the dock) going to the house of Sattar. After sometime they left that house." In her cross‑examination P. W.

2. Nur Jahan stated that she told in the lower court that Mokbles and Sattar came to the office in the afternoon and finding her husband absent, they waited in the house of the second wife of Sattar, but she maintained that she was not deposing falsely being tutored by her father and she saw Sattar and Mokhles going to the house of the Anglo Pakistani lady from the house of Sattar. The evidence of the I. O. P. W. 13 shows that P. W. 2 did not tell him that she saw Sattar and Mokhles going to the office of Sattar and then to the house of his Anglo -Pakistani wife. According to the I. O. P. W. 6 also did not tell him that Mokhles and Sattar went towards the office from Sattar's house. The evidence of P. W. 6 that he found Dr. Mannan going to the house of the Anglo Pakistani wife of Sattar, has not been controverted and there is nothing in his cross‑examination or in the evidence of the I. O. to show that he did not make such statement to the latter. The evidence of P. W. 10 is that he saw Mokhlesur Rahman and Sattar going to the house of Sattar a little after 4 p.m. This statement has not been challenged in cross‑examination nor is there anything to suggest that he did not make any such statement to the I. O. As regards the alleged contradiction between the evidence of the witnesses and the I. O. one significant fact is that although it was apparently a case of cold‑blooded murder of a millionaire, at a time of day when it was not very dark, the police took up a curious attitude in the case. Appellant Sattar was the accused in the case and yet P. W. 11, S. I. Azizul Huq examined only his relations and henchmen with the exception of only one or two witnesses who were brothers of P. W.

2. This officer did not examine witnesses on the side of the prosecution and the investigation was later taken away from him by the O. C. P. W. 13 M. A. Raquib who did not conduct himself any better. There is nothing to indicate that even he examined Sultan Ahmed, Kobbad and others on the prosecution side till after P. W. 2 complained to the S. P. about the callous attitude of the police. It was only after the complaint that the S. P. visited the house of P. W. 2 on 6‑6‑61, with the O. C. P. W. 13 and asked P. W. 13 to investigate the case properly. This police officer could not be expected to change the old attitude towards the case at once, simply because the S. P. desired him to investigate the case properly thenceforth. In those circumstances, we have suspicion that the statement of the witnesses were not recorded correctly and the later investigations was evidently sought to conform to the previous investigation, as the same officer was in charge of both. The S. P. who ultimately made a change of the Investigating officer, might as well have placed a D. S. P. or an Inspector in charge of the investigation under his personal supervision in a case of the present kind. Be that as it may, in the peculiar circumstances of the case; we would prefer to accept the version of the witnesses concerned that they did make the challenged- statement to the I. O. rejecting the evidence of the I. O. on this point. Considering all the aspects of the question, we accept the prosecution version‑ regarding the association of the three appellants immediately before the occurrence. (4) Altercation between Sattar and Majid in front of the office attracted Mannan Dobash and as soon as he intervened, Sattar gave him a push and then a kick on the scrotum or the abdomen (vide P. Ws. 3, 6, 7 and 10 corroborated by P. W. 2). (5) Doctor Mannan came along uncalled for from the, house of the Anglo‑Pakistani wife of Sattar being accompanied by Yousuf, brother‑in‑law of Sattar, who carried the Doctor's bag. At the time of the ushering in of the doctor, there was a cry of "Moulvi Sahab has come" which apparently scared away Nur Jahan. This is very significant. The fact that Yousuf, brother- in‑law of Sattar, carried the doctor's bag, is also a very significant fact. Doctor Mannan on his arrival at once pushed an injection on the left hand of Mannan Dobash with a syringe which was already filled up. The relevant evidence is that of P. W. 2, which is as under: Immediately after, Dr. Abdul Mannan and Yusuf, brother- in‑law of the accused Sattar came there. Yusuf was carrying the bag of the Doctor Mannan. Then some one shouted out "Moulvi Sahab had come" I went behind the purdah. But I found Dr. Mannan pushing an injection in the left hand of my husband. The injection was already kept prepared in the syringe. As soon as the injection was pushed the tongue of my husband protruded out. Dr. Mannan then tried to push in the tongue. Some shouted that he was dead. I then came out. Dr. Mannan then lifted his bag for going out. At that time one Daroga with two constables came there: P. W. 3: "Dr. Mannan came there accompanied by Yusuf, brother‑in‑law of the accused Sattar. Yusuf had a Doctor's bag in his hand. Dr. Mannan pushed an injection to my father's hand. Injection was kept prepared in the syringe from before. The tongue of my father protruded out as soon as the injection was pushed. Dr. Mannan was then pushing the tongue of my father inside with one hand and jerking his breast with another hand. My father expired as soon as the injection was pushed. Dr. Mannan then left the place." P. W. 5 :‑Dr. Mannan accompanied by Yusuf, brother‑in law of Sattar came there. Yusuf had a bag in his hand. Dr. Mannan (identified) brought out a syringe from his bag and pushed an injection in the left hand of Mannan Dobash. As soon as the injection was pushed, the tongue of Mannan protruded out. Dr. Mannan then left. P. W. 6 : Then Dr. Mannan came there accompanied by Yusuf the latter had a bag in his hand. Dr. Mannan then pushed an injection in the left hand of Mannan. Immediately after that the tongue of Mannan protruded out, Dr. Mannan then pushed his tongue inside with one hand and massaged his chest with another hand. Mannan expired then. Dr. Mannan then came out. One Daroga, two constables, Dr. Mannan Mokhles". P. W. 7 :‑Dr. Mannan accompanied by Yusuf (brother‑in- law of Sattar) came there and Yusuf carried the Doctor's bag in his hand. Doctor Mannan brought out a syringe already filled up from the bag and pushed an injection on the left hand of Mannan Saheb. As soon as the injection was pushed, the tongue of Mr. Mannan came out. Dr. Mannan then left. Then Dr. Mannan, Abdul Momin, Majid, Mokhlesur Rahman, two police constables and one Daroga came and went up stairs". P. W. 10:-- "I looked towards south and found Dr. Mannan and Yusuf coming from the house of Anglo‑Pakistani wife of Sattar. Yusuf had the bag of Dr. Mannan in his hand. Yusuf is a brother‑in‑law of Sattar. I also found Mokhlesur Rahman standing behind the house of the Anglo‑Pakistani wife of Sattar (identified the accused on the dock). In the meantime my sister reached that verandah. Immediately after Dr. Mannan came with Yusuf. He pushed one injection to the hand of Mannan. Injection was brought out of the bag."

6. As soon as the injection was given the tongue of Mannan Dobash protruded out and then Dr. Mannan tried to push it back inside, as it will appear from the evidence.

7. At that time Mokhles was seen standing behind the house of the Anglo‑Pakistani wife of Sattar. The hind part of the house of the Anglo Pakistani wife is visible from the front side of the house of Majid (vide the evidence of P. Ws. 2 and 3). It may be mentioned here that the suspicion of the police fell upon Mokhles fairly early. P. W. 13 has stated: "On 11‑3‑61 1 wanted to record the statement of Mokblesur Rahman Serang but he could not be found. I also wanted to arrest him since 11‑3‑

61. Mokhlesur Rahman surrendered in Court."

8. Sattar immediately left the place in the black car and went to Kotwali police station and gave information which was recorded in the G. D. entry Exh.

2. This information was aimed at creating a defence in the case, as stated before.

9. Mannan Dobash expired immediately after the injection was given and this is proved by the evidence of P. Ws. 2, 3, 5, 6, and 7.

10. Soon after the incident one Daroga and two constables arrived there and Mokhlesur Rahman also came. Mokhles, Dr. Mannan and the Daroga were found closeted in one of the rooms of the first floor of Majid's building where Majid also was present. They whispered together (vide P. Ws. 2, 3, 6, 7, and 10). P. W. 2 stated : , "The accused Mokhles, Dr. Mannan, police officer, Chand Mea and Momin went upstairs." P. W. 3:

Then two constables and one Daroga came and took their stand in the yard of Majid Mia. . . . . . Then Mokhlesur Rahman, Dr. Mannan, Chand Mia, Momin came there. They took the Daroga and the constables upstairs." P. W. 6:

‑"Dr. Mannan then came out. One Daroga, two constables, Dr. Mannan, Mokhles, Jane Alam and Chand Mia came and went upstairs". P. W. 7:

Then Dr. Mannan, Abdul Mamin, Majid, Mokhlesur Rahman, two police constables and one Daroga came and went upstairs". In cross‑examination: "No other outsider accompanied the party who went to the upstairs of Majid after the occurrence." P. W. 10 :

"Mokhlesur Rahman, ' Dr: Mannan, two constables, Chand Mia, Momin and that police officer went to the first floor of Majid Mia . . . . . Majid Sahab was in the upstairs from before. I went upstairs to ask Majid what to do with the dead body. There are two rooms in the upstairs. In one room, Dr. Mannan, Mokhlesur Rahman and S. I. Azizul Huq were talking amongst themselves in whispering sound. In another room Majid, two constables, Chand Mia and Momin were found, Momin did not allow me to go to that room when I wanted to go to Majid . . . ."

11. After removal of the dead body to the house of Mannan Dobash, another Daroga, the O. C. came. The bearded Daroga, Dr. Mannan Yusuf and others then went to the house of Sattar (Vide P. W. 3). "The bearded Daroga, O. C. Dr. Mannan Mokhlesur Rahman and Sattar then went to the house of Sattar Mia."

12. After a few minutes Dr. Mannan and the bearded Daroga again came to the house of Mannan Dobash and took Nur Jahan's signature on a blank paper misrepresenting that it was required for post‑mortem examination. This fact has been testified to by P. Ws. 2 and 3, as mentioned before.

13. The dead body was then hurriedly taken away to the hospital for post‑mortem examination by the Daroga, Sattar, Dr. Mannan Mokhles all of whom accompanied the dead body (vide P. Ws. 2 and 3). P. W. 2 :‑"Dr. Mannan, Mokhlesur Rahman, Sattar and the Daroga who came with Dr. Mannan took away the dead body". P. W. 3:

"My mother signed it in a state of senselessness. They then lifted my father in one car. In that car Mannan, Yusuf, Dr. Mannan and two police men also went. In another black car Mokhlesur Rahman, Sattar Mia, deceased, Daroga and O. C. went. Both the cars left our house simultaneously." It is rather unusual for these men to accompany the dead body at dead of night, unless they had some idea up their sleeve, namely, that of influencing the medical authorities. Circumstances such as those above leave little doubt that the trio were acting in concert in pursuance of the conspiracy to murder which was ultimately translated into action by appellants Mannan and Sattar.

14. The active part taken by the police in supporting the defence and attempting to spoil the prosecution case, is further indicated by the fact that all the previous papers of the prosecu tion case are said to have been burnt within the thana mal‑khana itself, which is a very unusual circumstance and may have been the result of motive and design. According to the I. O. the witnesses did not make certain statements to him. Some of such omissions, as we have mentioned before, may be construed as contradictions. There is, of course, authority to indicate that in cases of such contradictions, the evidence of the police officer should be accepted in preference to the evidence of the witnesses, affirming that they did make such statement. But in the present case the position is very peculiar. Here the police officers concerned, from the very inception, worked against the prosecution and in favour of the defence, so much so that the poor helpless lady Nur Jahan, wife of the deceased, was compelled by circumstances to submit a petition to the S. P. alleging callousness of the police in the matter of investigation. The S. P. had to come down to the house of Nur Jahan and ask the I. O. to investigate the case properly, which implies that the investigation held hitherto was not quite satisfactory. The relevant evidence of P. W. 2 is as under: P. W. 2 : "I do not remember how many days before the visit of the S. P. to our house, I filed the petition to him. Being ordered by the S. P. the O. C. then recorded my statement and the statements of other witnesses." P. W. 13 himself stated that on 6‑6‑61 Syed Mannan Bux, S. P. went to the spot with him to supervise the investigation on that day. He examined Nur Jahan, Laila, Amena Khatun, Mofzal, Taskir, Ali Ahmed, of course, he is silent as to his having done so on the orders of the S. P. He has stated that he took over charge of the investigation from S. I. Azizul Huq and this was apparently at the instance of the S. P. We have reasons to think that the I. O. could not change his attitude towards the case and. stuck to the original line taken by the police. In these circumstances reliance can hardly be place on the evidence of the I. O. that the witnesses omitted to make the statements in question. We feel inclined to accept the evidence of the witnesses concerned that they did make the statements to the T. O. Some adverse comments have been made by Mr. Abdu, Salam Khan regarding the non‑examination of Mannan Dobash'; full brother Majid Dobash and mother Begumjan and Nur Jahan's father Sultan Ahmed and brother Kobbad. It is in evidence that Majid had been siding with Sattar and Mokhles. Hence neither he nor his mother Begumjan, who has been living with Majid could be expected to come and depose against Sattar and Mokhles. P. W. 2 has stated "The charge‑sheet witness Majid is my own Bhesur. On the date of occurrence he was on my husband's side. Now, he is siding with the accused. Begumjan is now under the thumb of Majid . . . . . . . . . . . Abdul Karim is under the control of the accused Sattar . . . . . . . . . . Md. Safi, Kobbad Ahmed and my father Sultan Ahmed will not depose in this case out of fear. They are very much afraid of the accused". It may be mentioned here that this witness also stated that for the first time on the 6th June, 1961 she gave her statement before the S. P. The evidence on record suggests that Mokhles and Sattar are not only very rich but also very powerful men particularly Sattar. It is not difficult to think that Sattar is a source of terror to the people and people would be naturally afraid to depose against him. This may also be one of the reasons for non‑examination of Sultan Ahmed and Kobbad also. Furthermore, had they really been brought to the witness box, defence would all the same have criticised and said that no reliance should be placed on their testimony as they were close relations of Nur Jahan, wife of the deceased. There is thus little scope for any adverse presumption against the prosecution arising from the non‑examination of such witnesses. It has been urged on behalf of the appellants that the eye witnesses were all interested and deserved no credit. Of course P. W. 2 is wife of Mannan Dobash P. W. 3 is his daughter while P. W. 10 Taskir is brother of P. W. 2 Nur Jahan. They are all natural probable and competent witnesses. Taskir also used to live with the deceased. P. W. 5 Amena was their Aya and P. W. 6 Ali Ahmed is son of Amena while P. W. 7 Mofzaf was a motor mechanic under the deceased and used to work in the motor garage in front of the deceased's house. There is nothing to indicate that these witnesses are any longer in the employ of Nur Jahan and as such there is nothing to question their disinterestedness. P. W. 3 Laila Begum was 12 years and 6 months at the time of her deposition at the trial and comes in the category of child witness. The learned trial Judge was conscious about it and observed in his judgment that from her demeanour it appears that she gave a true statement of facts, that she stood the test of cross‑examination very well and that it cannot be said that parrot like she reproduced something she was tutored to say by Sultan Ahmed or any other person. This appears at page 41 of the judgment. The learned Additional Sessions Judge also made observations about all the witnesses of occurrence, namely, P. Ws. 2, 3, 5, 6, 7 and 10 saying that from the straightforward manner in which they answered the question and from their demeanour as a whole he was satisfied that they were truthful witnesses. This also appears at page 41 (top) of his judgment. Now the question is whether appellant Mannan in administering the injection, administered poison into the system of the deceased and whether the death was caused by such poisoning. P. W. t Dr. M. A. Kader held post‑mortem examina tion on the dead body on 23‑2‑61 at 11‑30 a.m. He found some whitish stain at the right nasal orifice and the scrotum highly swollen. P. W. 1 Doctor's finding was: "

1. Some whitish stain found at the right nasal orifice.

2. Scrotum was highly swollen. No other external findings could be detected". He also stated that the scrotum may be swollen due to Hydrocele or due to injury. He said no opinion could be given without chemical examination of the viscera, such as stomach and its contents right kidney and part of the liver with full bladder, which was preserved by him. He found the stomach healthy and it contained about 8 oz. of semi‑digested material. He agreed that froth may come out due to asphyxia, and that sometime poisonous injection only affects the brain and causes asphyxia. The statement of this doctor seems to be inconsistent and contradictory. Although he stated in examination in chief that scrotum may be swollen due to Hydrocele or due to injury. In his cross‑examination he went all out to support the defence by stating that the scrotum of the deceased was swollen due to Hydrocele and for no other cause and that the swolling could not be caused by kick because he found a clear Hydrocele fluid in the viginal cavity and he said that in case of kick the fluid would not have been clear. It may be noted here that there is no evidence whatsoever that the deceased was suffering from Hydrocele. On the contrary, the clear evidence of P. W. 10 is to the following effect. "He had a perfect health. He was a very good foot ball player. He got many cups and shields. They are still in his house. He was the Secretary of the Firinghee Bazar foot ball club and a player of the Firinghee Bazar foot ball team. He was also a Tennis player. He played Tennis at the Catholic tennis lawn two months before the date of occurrence." In the light of this evidence and clear denial on the part of Nur Jahan that her husband had Hydrocele, it is difficult to accept that the Doctor found Hydrocele fluid and that swolling of his scrotum was due to Hydrocele. This doctor contradicted himself and said in cross‑examination that in case of all poisonings, the viscera which was sent by him for chemical examination was sufficient for detection of poison by chemical analysis, although he had earlier stated that some poisonous injection only affects the brain and causes asphyxia in which case froth may come out at the time of death. "Froth may come out due to asphyxia. Sometime poisonous injection will only affect the brain and cause asphyxia. Froth may come out at the time of death. The part played by this doctor in this tragic drama, does not seem to be above board. When he failed to discover the cause of death it was his clear duty also to send the brain and membrane for chemical examination but he had not done so. Of course the report of the chemical examiner shows that no poison was detected in the viscera that was sent. This does not rule out the possibility of a poisonous injection inasmuch as poison might have been detected if brain and membrane were also chemically analysed. There are however certain symptoms from which the conclusion that poison was injected, may be drawn. The very protrusion of the tongue as soon as the injection was pushed and the froth coming‑through‑the nostril are significant enough. This symptom should be considered along with other conduct of Doctor Mannan and his association with the other appellants and the part played by him both before and after the death. The fact that he came uncalled for with a filled up syringe and pushed the injection hurriedly, is another very unseemly symptom of his guilt. The clear evidence is that he came with a filled up syringe and as soon as he pushed the injection, the tongue shot out which he rather cruelly pushed in and thereafter gave a jerk on the chest. Pushing the tongue in itself seems to be an incriminating circumstance. It is true that the Doctor stated that he did not find any mark or trace of any injection on the dead body but at the same time the Doctor stated that if any injection was pushed before the death of the man, it could not always be detected in the person of the victim at the time of the post‑mortem examination. In the circumstances, as above, we have little doubt that the injection pushed by Doctor Mannan had its deadly effect upon the deceased. The contention of the appellants is that death might be due to shock at the receiving of the kick at the scrotum or abdomen or due to heart failure. The defence elicited from the Doctor P. W. r that in case of chronic heart disease and blood pressure a person may drop down dead in a moment of excitement. But there is no evidence that Mannan Dobash ever suffered from any heart disease or blood pressure. On the other hand, the evidence as indicated, shows that he was a good sportsman and played Tennis only two months before the occurrence. The suggestion on the part of the defence that one Sudhir Doctor accompanied him when he visited Ajmere because he was a heart disease patient, was emphatically denied. There is no substance in the contention that he died of shock due to heart disease and blood pressure. The Doctor's evidence is : "Heart was not enlarged". A question has been raised about the time of the occurrence according to the prosecution it took place at about 6 p. m. just about the Iftar time. According to the accused Sattar's statement in the G. D. entry Exh. 2 also it took place at about 6 p. m. 8 oz. of semi‑digested materials having been found by the doctor in the stomach of the deceased, some amount of confusion has been created as to the exact time of the murderous attack. The evidence of P. W. 2 Nur Jahan is that her husband used to keep his fast regularly and on this fateful day also he was fasting and that when he went to intervene in the quarrel between Sattar and Majid he left instruction to her to prepare the Iftar. Question arises : If he was fasting, how could so much food be found inside the stomach at the time of occurrence ? P. W. 10 Taskir Ahmed, however, has stated that Mannan would sometime during Ramzan take food outside as he dared not break fast at day time at home. The fact that he asked his wife to prepare Iftari, is not so very inconsistent with his conduct having regard to the fact that at home he always made the impression that he was fasting regularly. Moreover, about 6 p. m. was also time of Iftari on that date. It is possible that the incident took place immediately after he had broken his fast. May be, that he had taken the Iftari only by that time. It is "semi‑digested materials" that was found and not "semi‑digested rice". In any event this contention on the point as to the time of occurrence does not, in the circumstances, impress us very much. According to Mr. Khan one of the defence theories is that the deceased was pushed and hit by Sattar's car. Even if this theory is accepted, it is very strange to find that the Doctor does not discover any kind of injury or any external sign of injury on the deceased. If the deceased was pushed by car there would have been at least some marks however insignificant on his person. The absence of any external injury reflects very greatly upon the conduct of the Doctor P. W. 1, inasmuch as whether it was a case of kick by Sattar or hitting by his car, he would have found injury of some kind other. But he has said that he found no injury whatsoever on the dead body. None of the witnesses has any animus against Doctor Mannan. On the other hand, according to the defence, he is a family physician gad as such a friend of the family. Unless there was some truth in the allegation of the prosecution it could not be normally accepted that the witnesses having no animus, would depose against Doctor Mannan. In the circumstances, as above, we feel inclined to hold that the charges of section 120‑B as against the trio and of section 302/34 in addition as against appellants Sattar and Mannan have been driven home beyond doubt. Before closing, we should refer to a faint contention on the part of Mr. Khan, namely, that at any rate, there could be no conviction of the appellants Sattar and Doctor Mannan under section 302/34 of the Pakistan Penal Code. His argument is that Doctor Mannan having come later and he not being present at the first push and kick itself, he could not be said to have been acting in furtherance of the common intention to kill Mannan Dobash. All that the section requires is that the acts by the several persons should be in furtherance of the common intention. Simply because appellant Doctor Mannan played his part a few minutes later, it could not be said that his act was not one in furtherance of the common intention. The criminal act of murder had not been completed until, as on the evidence of the P. Ws. 2, 3, 5, 6 and 7, and injection was pushed by Doctor Mannan. There was unity of criminal behaviour as between the two and it resulted in something for which an individual could be punished if it were all done by himself alone. In that view of the matter we hold that the two appellants Doctor Mannan and Abdus Sattar have been rightly convicted under section 302/34 of the Pakistan Penal Code. They are at the same time guilty along with the other appellant, namely, Mokblesur Rahman (found guilty only under section 120‑B) under section 120‑B of the Pakistan Penal Code for the illegal agreement itself. For the offence under section 120‑A, the association or coming together or forming of the common intention itself without more, is sufficient. It is not necessary to prove that two or more persons came together and actually agreed on terms to have the common design and to pursue it by common means and thus carry it into execution. The illegal agreement could be inferred from the acts and conduct alone. We, therefore, also confirm the conviction of the three appellants for conspiracy to murder under section 120B of the Pakistan Penal Code and also the conviction of appellants Abdus Sattar Dobash and Dr. Abdul Mannan under section 302/34, P. P. C. We are very much dissatisfied with the conduct of the investigating police and of Doctor M. A. Kadir, P. W. 1 and this should attract the attention of the authorities concerned. In the result, we dismiss the appeals and uphold the convictions and sentences of the appellants. Appellant Mokhlesur Rahman who is on bail will now surrender to his bail and serve out the remainder of the sentence imposed upon him. K. B. A. Appeals dismissed.