1968 P Cr (PLP)

P. W. I brought Huru Miab to town by a Baby Taxi and the injured Huru Miah was admitted into the hospital at 1 P. M., and he died within half an hour thereafter. On the expiry of Huru Miab, P. W. 1 Ajmal Ali asked P. W. 3 to go to the thana and to lodge an Ejahar and accordingly P. W. 3 lodged the Ejahar Exh. 2 at 2-15 P. M., which was recorded by P. W. 5 Ashuk Barua A: S. I. This A: S. I., held inquest on the dead body of Hur Miah and after inquest sent the dead body to the morgue for post-mortem examination. P. W. 12 the Medical Officer of Civil Hospital, Sylhet held post-mortem examination on the dead body of Huru Miah at 4 p.m., of the same date, namely, 1-8-1943. The doctor found the following injuries on the person of Huru Miah. "

1. One incised wound with clean edges of stabbing character 2 ' x " x 2 placed transversely on right side of the neck at its middle.

2. One incised wound with clean edges 1 " x " penetrating into left thoraic cavity placed on left side of back at about its middle below the scapula and nearer the middle line.

3. One incised wound with clean edges I J x J" x 1' on left side of buttock at its upper part.

4. One incised wound with clean edges 2" x J" x 1" on right palm in between right thumb and the index finger." P. W. 20 is the Investigation Officer in the case who visited the place of occurrence on 2-8-1963, prepared a sketch map, the index of the place of occurrence marked Exhs.3 and 3(a). He stated that the spot shown to him by the informant was on the west of Sylhet Moglabazar road at a distance of 35/40 cubits and that the spot of the occurrence is the paddy land with standing paddy wherein the police officer found marks of violence and the paddy plants damaged and he also found disturbed sunken foot prints on the spot. There was heavy shower of rain in the locality at or about the time of occurrence. The I/O., however, found some blood on the side of land "A" as shown-in the sketch map and he also seized this blood under seizure list Exh.

4. He also seized one bamboo Bang with the stains of blood, which was produced to the L/O. by P. W. 11 Entaj Ali. P. W. 11 Entaj Ali stated that while the accused persons were going away from the place of occurrence, appellant Monir was behind of all and P. W.11 took this blood-stained Bang from the hand of Monir. This witness P. W. 11 also stated that there were marks of blood on the Bang which was seized by the L/O. under a seizure list Exh. 4 (a). It may be mentioned here that in the F: I. R., the time, place and manner of occurrence have found mention there. There is also specific mention of those who actually injured Huru Miah and also mention of the dying statements of Huru Miah to P. Ws. Sunu Miah, Monir and others. The F. I. R. thus supports the prosecution case on all material points. It also appears having regard to the short time that passed between the occurrence and A the lodging of the F.

1. R., when the aggrieved party were busy in attending to the dying man, that there was little chance oft concoction and fabrication. Appellants Shafique, Rafique Badsha, Monir and Nazir are near relations of Huru Miah. Huru Miab, Showkat and Aftabur Rahman also live in the same homestead or side by side. Appellant Badhsha is full younger brother of Saiful Alam Khan. Appellant Shafique, Rafique and Monir are sons of elder Mother of Saiful Alam and appellant Nazir is Memato brother of Saiful Alam pleader. They all live in the same homestead and appellants Badsba, Rafique, Shafique and Monir are also bene ficiaries of the Wakf estate of which pleader Saiful Alam is the Mutwalli. The witnesses as produced in the case are all of the same locality and nothing serious could be shown against any of the eye-witnesses of the occurrence. All the P. Ws. excepting P. W. 3 and P. W. 14 have no relationship with the deceased. No clear enmity of these witnesses as against the accused persons also could be shown. P. Ws. 6, 7, 8, 9, 15, 17, 11, 18 and 10 have no connec tion with P. W.

1. P. W. 1 living as he does, in Sylhet town has little command over the P. Ws., of the locality as against pleader Saiful Alam and as against his other brothers. The suggestion that P. W. 6 was related to P. W. 1 fell through nor could any relationship or connection be shown of P. W. I Ajmal Ali or of P. Ws. Aftabur Rahman and Showkat or of deceased Huru Miah with P. W. 8 Chand Ali, P. W. 7 Yadullah, P: W. 9 Abdur Rouf, P. W. 15 Sunawar, P. W. 17 Monir Mia and P. W. 18 Majidullah. A reference to the G. D. entry Exh C based upon phone message by P. W. 1 is here called for. This G. D. entry indicates that the assailants were not known and the entry was marked exhibit for the prosecution in the committing Court: But the Q. D. entry not being according to the information sent by P.W, 1 Ajmal Ali was not put in evidence by the Public Prosecutor at the trial. The prosecution examined P. W. 16 Mukhlesur Rahman the O/C. who stated in his examination-in-chief that on I-8-1963, at 9-55 A. M., in the morning he got a phone message from P. W. 1 and he recorded the same in, the G. D. entry under entry No. 14 dated 1-8-1963, and he deputed S. I. S. K. Ghosh and two constables to Nakhai for necessary action. P. W. t stated that P. W. 14 Sawkat Ali Choudhury came to his Basha and told him (sic) "(Father has been staffed by Shafique and others; there is doubt whether you will get him when you go?") On getting this information P. W. I tried to contact the Superintendent of Police and failing in that he informed the O/C. on phone. P. W. t stated in Court that on the phone he said that Shafique and others had injured Huru Miah very seriously. The contents of the G. D. having shown that the assailants were unknown, it was contended that the real position was that the assailants were not known and that later the case was built up at the instance of P. W.

1. The Public Prosecutor considering that the prosecution case will be prejudiced if the G. D. entry Exh. C is put into evidence, examined the O/C. who recorded the G. D. entry. P. W. 16 who recorded the G. D. Exh. C did not contradict P. W. 1 nor did the defence elicit from P. W. 16 as to what P. W. 16 heard from P. W. 1 over the phone. The defence not having elicited from P. W. 16 as to what he heard from P. W. 1 Ajmal Ali over telephone the G. D. entry Exh. C does not seem to help the defence case in any way. Showkat who came and informed P. W. 1 was at that time in a very purturbed state of mind to give all the details and that is why he simply stated " (sic) ", and according to the evidence of P. W 1 in Court be mentioned in the phone that " (sic) " stabbed. It is also possible that at that stage P. W. 1 was not in a position to mention the names. Now taking Mr. Bose' s last ground first, there is nothing in the evidence as above that Ajmal Ali P. W. 1 had any influence over the witnesses of the locality; he being himself away in Sylhet town. The F. I. R. was not lodged after any undue delay con sidering the distance and other factors like hospitalisation and death of the deceased. P. Ws. 3 and 4 though distantly related to P. W. 1 Ajmal Ali, the main witnesses in the case, namely, P. Ws. 6 Osmanullah, 7 Yadullah, 8 Chand Ali, 9 Abdur Rouf, 15 Sonawar, 17 Monir Miah, 11 Entaj Ali, 18 Majidullah and 10 Altaf Hossain have no relationship with P. W. 1 Ajmal Ali. After all P. W. 1 is not himself an eye-witness and the part played by him cannot throw discredit upon the evidence in Court of so many witnesses of the occurrence. Mr. Bose has criticised the evidence of P. W. 1 on the ground that P. W. 1 stated on the first day of his deposition that he did not remember three names out of the ten names stated by Huru but later on he was recalled and he stated that he remembered that Huru Miah named Jahid, Ayub and Tobarak also along with other seven accused. Though this is indeed strange, we cannot hold that this con duct or slip on the part of P. W. 1 can affect the prosecution story vitally as all the other P. Ws., named all the ten accused and also stated that Huru Miah mentioned all the ten name. The prosecution has also brought sufficient evidence of motive. Only very recently Huru Miah deposed against appellants Harish, Mongai and they were only bailed out 15/ l6 days before the occurrence. A criminal case at the instance of Huru Miah was also pending against appellants Ayub and Tobarak at the time of occurrence. Now coming to the contentions of Mr. Bose on the basis of grounds Nos. 2 and 15 which relate to common intention of all the appellants, it appears, as stated before, that in the Committing Court appellants Shifique and Mongai were charged for an offence under section 302 of the Penal Code, and the remaining eight accused persons were charged for an offence under section 302/ 149 of the Penal Code and all the ten accused persons were charged under section 148 of the Penal Code and the learned Judge while convicting the appellants under section 302/34 of the Penal Code observed that in the facts and circumstances of the case all the ten accused might also be found guilty for the murder of Huru Miah under the provisions of section 302/l49 of the Penal Code without causing any least possible prejudice to any accused. The learned Judge, however, framed a straight charge under section 302/34 of the Penal Code against all for committing the offence of murder in furtherance of the common intention of all. He also framed a charge under section 148 of the Penal code against all for being members of unlawful assembly, which in pro secution of the common object of such assembly, namely, in murdering. Huru Miah, committed the offence of rioting being armed with deadly weapons such as daggers and Bangs. It is rather strange that the Sessions Judge charged all the 10 appellants with the common intention of murder and at the same time with the common object of murder. It may be incidentally observed here that there. is a high degree of doubt as to whether a Bang is a deadly, instrument at all. It appears that the learned Judge did not frame any charge under section 147 of the Penal Code at all and charged all the appellants under section 148 of the Penal Code; as above, but convicted all t6 accused other than Shafique and Mongai under section 147 of the Penal Code while convicting them at the same time under section 302/34 of the Penal Code. The reason per haps is that he did not regard Bang which was held by Monir, Jabid, Haris, Ayub and Tobarak as deadly weapon and because appellants Rafique, Badsha and Nazir were empty handed. The position thus created seems to be irreconcilable. The learned Additional Sessions-Judge observed:-- "The accused Shafique attacked Huru Miah, with dagger and while Huru Miah ran towards west all these ten accused chased Huru Miah up to the paddy land of assault and the accused Shafique and Mongai stabbed Huru. Miah with daggers and Monir struck Huru Miah with a Bang and the other accused encircled Huru Miab. Huru Miah was not stabbed and struck in any -free fight between two parties, nor this occurrence took place in any quarrel over any land dispute between two parties. So it appears to me that accused persons made a preparation and conspiracy before hand, they got themselves armed with two deadly weapons daggers and several Bangs usually for carrying paddy or other loads and three of the accused were also apparently empty banded and in this fashion all these ten accused persons attacked Huru Miah on the way and being attacked with dagger when Huru Miah ran towards west, all these accused persons chased him and then the two accused having daggers in their hands, namely, Shafique and Mongai stabbed Huru Miah and accused Monir struck Huru Miah with a Bang. These facts and the circumstances go to show that this is a premeditated and pre-arranged murder." Examining the facts for ourselves, we find that .there is nothing in the evidence to indicate that all the accused were acting in furtherance of the common intention of murder. There is nothing in the evidence to suggest any conspiracy or preparation before hand so much so that there is not even any evidence that the accused knew that Huru Miah would be returning and on the road at that hour. It is true that common intention may grow on the spot but those unarmed at any rate cannot be fixed with common intention without any overt act on their part. The injuries as found on the person of the deceased do not show any injury other than the incised injuries which could only be inflicted by sharp cutting weapons as carried been Shafique and Mongai. The Bang injury said to have beer inflicted by appellant Monir could not be located by the Medica officer. On the other hand, the Bang which was seized by the 1/O. bore blood-stains. The prosecution story being that Monir' s blow only gave a fracture; the blood-stains on the Bang remained unexplained. Moreover, P. W. 11 stated that he snatched away the blood-stained Bang from Monir while the evidence of the other witnesses also of the doctor does not show that Monir caused any bleeding injury. No other injury except the four incised injuries as inflicted by Shafique and Mongai were found on the person of the deceased. The evidence of P. W. 14 Showkat is that all the ten appellants started together from the house of Shafique along the Sylhet Moglabazar road towards the south and when Huru Miah came in front of them, Shafique attacked the witness's father Huru Miah with dagger and all the other accused encircled his father. When Huru Miah wanted to run away, Rafique caught hold of him and Huru Miah pushed off Rafique and ran towards the west and then all the accused chased Huru Miah. After going 30/40 cubits Huru Miah stumbled down; then appellants Shafique and Mongai struck Huru Miah with daggers and appellant Monir struck on the left band of Huru Miah with Bang and that appellants Haris, Ayub and Tobarak encircled Huru Miah that except the 3 actual attackers all the other 7 appellants chased and encircled Huru Miah. The evidence pf other witnesses like P. W. 3 and P. W. 6 also was that appellants other than these 3 chased and encircled only. The evidence is uniform, on the point of the 7 appellants other than Shafique and Mongai and Monir encircling Huru Miah when Shafique and Mongai and Monir were busy with their attack. Mr. Bose has urged that the learned Judge was wrong in saying that all the appellants chased and encircled as some of the P. Ws., also ran into the paddy field. Whether the right word is 'Chased' or not, it appears that all the appellants started together from the house of Shafique and followed Shafique to the paddy field where the fatal injuries were inflicted on the deceased. They also ran together while escaping as testified to by P. Ws. 10 Altaf Hossain, 11 Entaj Ali and 18 Majidullah. Huru Miah also mentioned all the accused as taking part in the tragic drama. These circumstances, however, though indicative of the formation of an unlawful assembly with the common object to assault or to murder, do not show that all the ten appellants acted together in furtherance of the common intention of murder. It is only appellants Shafique and Mongai who- carried daggers from before and acted jointly together in the commission of the act of murder that can be held guilty under section :04/34, P. P. C. After Rafique who caught Huru Miah on the road was pushed off and then Huru Miah stumbled in the paddy field while escaping, a common intention grew on the spot between Shafique and Mongai to finish Huru Miah, which they did. Both of then! bad sufficient motive for the same and they were waiting for an opportunity and that opportunity came when Huru Miah stumbled and fell in the paddy field. The injury said to have been inflicted by Monir by Bang could not be located. As to the order of killing given by .Nazir the evidence is rather discrepant. Huru Miah himself has not said so. P. W. R did not state to the L/O. that appellant Nazir gave any order while P. W. 9 stated to the 1./O. that Nazir struck Huru Miah with a Bang. So far as Rafique goes he only caught Huru Miah on the road when the initial attack was made by Shafique. There is no evidence that he helped in any way, in the very commission of the murder itself in the paddy field. We find in those circumstances that the common intention of murder was confined to appellants Shafique and Mongai only. The learned Sessions Judge convicted Shafique and Mongai under section 148 and others under section 147, P. P. C. We are in agreement with the learned Sessions Judge on this point. According to the learned Sessions Judge common object was to kill Huru Miah but 5 of the appellants were armed only with Bang and 3 were empty handed. In those circumstances, it. is difficult to hold that they had actually the common object to murder. There is however no escape for the other appellants from they clutches of the other principle of constructive liability as fixed by section 149 of the Pakistan Penal Code. The common object of all of them -was at any rate, to cause grievous hurt to Huru Miah inas much as at least two members of the assembly, namely, Shafique and Mongai had armed themselves with daggers and in furtherance of the common object Shafique and Mongai actually murdered Huru Miah and the other appellants had the knowledge that such murder might take place. These 8 others chased and also encircled Huru Miab at the time of the infliction of the fatal injuries in the paddy field. Therefore the other eight accused are liable to be convicted under section 326/149, P. P. C. In the result, we hold all the 10 appellants guilty under section 326/149, of the Pakistan Penal Code and at the same time appellants Shafique and Mongai guilty under section 303/34, of the Pakistan Penal Code. The learned Sessions- Judge has convicted the other 8 appellants under section 302/34 of the Pakistan Penal Code which in the circumstances of the case we convert to conviction under, section 326/149 of the Pakistan Penal Code. Question of prejudice does not arise. Reliance has been placed on the decision in Ahmad Ali v. The State (1) where the sections 304 (1)/34 of the Pakistan Penal Code when the charge against them was under section 302, read with section 149, P. P. C. Held: "Both sections 34 and 149, P. P. C., deal with construc tive liability and it is to be considered whether the accused who have been convicted under sections 304(1)/34, P. P. C., have been prejudiced in the absence of a charge under that section. A slight variation in the facts established from the facts alleged in the charge and a conviction for an offence on the facts established would not render it by itself bad in law in view of the provisions of section 236, read along with the illustrations as well as section 237, of the Code of Criminal Procedure." Coming to the question of sentence, we do not impose any separate sentence on Shafique and Mongai for the offence under section 326/ 149 of the Pakistan Penal Code and confirm the conviction and sentence of transportation for life as passed upon them by the learned Sessions Judge under section 302/34 of the Pakistan Penal Code. So far as the other 8 appellants go, we convict them under section 326/149 of the Pakistan Penal Code and sentence each one of them to a period of 4 years R. 1, each. The conviction and sentence as passed under sections 148 and 147 of the Pakistan Penal Code by the learned Sessions Judge are confirmed and will run concurrently in each case. The appeal is disposed of accordingly. ABDUL HAKIM, J.-1 agree. S. A. H. Appeal dismissed.