P L D 1954 Lahore 569 (PLP)

SHABIR AHMAD, J.‑Muhammad Aslam and his brother Muhammad Husain, who were tried by the learned Sessions Judge, Rawalpindi, under section 302/34 of the P. P. C. for the murder of Sangar Khan and under section 323/34 P. P. C. for voluntary causing simple hurts to Mst. Karim, Jan and Mst. Akhtar‑un‑Nisa, were found guilty on both the charges. Muhammad Aslam was sentenced to transportation for life for the offence of murder and a concurrent sentence of six month's rigorous imprisonment for the offence of causing simple hurt. No sentence, however, was passed on Muhammad Husain, whose case was referred to this Court under section 341 of the Code of Criminal Procedure as he is deaf and dumb. Muhammad Aslam has presented the present appeal and the reference relating to Muhammad Husain accused is also before us as Criminal Revision No. 657 of 1953. This order will dispose of the appeal as well as the revision petition. The incident out of which the case arises occurred within the area of village Kahuta in the Rawalpindi District at about 5‑40 a.m. on the 15th of June, 1952 and a report with regard to it was made the same day within about 45 minutes at Police Station Kahuta by Mst. Karim Jan who had herself received simple injuries. At the time of the occurrence the deceased and the two injured women were returning from village Kahuta where they had gone to Maulvi Abdur Rahman, Khateeb of Jamia Masjid, Kahuta, to inquire about the right of Mst. Akhtar‑un -Nisa to obtain divorce from Muhammad Husain accused. Mst. Akhtar‑un‑Nisa is the cousin of the two accused and the nikah of Mst. Akhtar‑un‑Nisa and Muhammad Husain was read when they were of tender ages. According to the prosecution the parents of Mst. Akhtar‑un‑Nisa had asked Muhammad Husain to take their daughter to his house or divorce her, but he was not prepared to adopt either of these courses. It was, according to the prosecution, with a view to finding whether or not in the circumstances Mst. Akhtar‑un- Nisa could obtain a divorce from Muhammad Husain that she, accompanied by her mother and Sangar Khan deceased who is the husband of her stepsister, had gone to Kahuta. The party had covered a mile from Kahuta when they found the two accused, of whom Muhammad Husain carried a stick and the other a hatchet, standing on the roadside. Muhammad Aslam caught hold of Mst. Karim Jan saying that they will give them divorce. Muhammad Husain accused inflicted soti blows on Sangar Khan who started running towards Kahuta. Sanger Khan was, however, followed by both the accused, who injured him with their weapons. When Sangar Khan dropped down as a result of a hatchet blow given by Muhammad Aslam, both the assailants ran away and shortly afterwards Sangar Khan breathed his last. The first informa tion report gave the above‑mentioned details and added that the occurrence was witnessed, besides the informant, by her daughter Mst. Akhtar‑un‑Nisa, Qazi Muhammad Aslam and two or three other wayfarers. In due course the dead body of Sangar Khan was subjected to post‑mortem examination which showed that he had received the following injuries :‑ (1) An incised wound transverse in direction was present on the back of the neck, 3" x 2"; with underlying sixth cervical vertebra cut. (2) A semi‑circular contused wound skin deep, 1 " x 3/8", transverse in direction was present on the back of the head, 3 " above injury No. 1. (3) Contused wound scalp deep oblique in direction, 2" x ", situated 3 "away from left ear towards the top of, the head. (4) Contused wound, skin deep, oblique in direction, 2 " x ", situated 2 " above the bridge of the nose. (5) Contusion mark, 1 " x ", on the middle of the right scapula transverse in direction. It was bluish black in colour. (6) There were several abrasions (fifteen in number) of varying sizes over the back of the chest, back 'of abdomen and over the buttocks. (7) Contused wound, 1" x ", skin deep, was present on the back of right ear. (8) Abrasion, 2" x 1 ", was present on the outer aspect of right arm over deltoid muscle. (9) Contusion mark, 3 " x ", was present on the outer aspect of right arm near its lower end. (10) Abrasion 3/4" in diameter was present on the right elbow. (11) Abrasion, 4 " x ", was present over left ulna. Spinal cord was cut under injury No. 1 and this injury which was the cause of death was obviously fatal in the ordinary course of nature. At the trial the prosecution produced Qazi Muhammad Aslam (P. W. 2), Mst. Karim Jan (P. W. 3), Muhammad Yusaf (P. W. 4) and Mst. Akhtar‑un‑Nisa (P. W. 5) as eye‑witnesses of the occurrence. Mst. Karim Jan (P. W. 3), who made the first information report, and Mst. Akhtar‑un Nisa (P. W. 5) are no doubt related to the deceased, but it is proved beyond all reasonable doubt not only from their statements but also from that of Qazi Muhammad Aslam (P. W. 2) and Muhammad Yusaf (P. W. 4) that they were in the company of Sangar Khan deceased at the time when he received the injuries which resulted in his death. The two ladies were examined by Dr. Sardar Ahmad, who was in charge of Kahuta Hospital in June 1952, but as the doctor had died by then he could not be produced as a witness when the case was dealt with by the committing Magistrate. However, the result of the examination of the doctor is on the record, having been formally proved by Shamas Din, Sub Inspector Police (P. W. 13), who was acquainted with the handwriting of the doctor, to the extent required by the Evidence Act to enable a person to give evidence, that a document was in the handwriting of a certain other person. The record of the examination of injuries of Mst. Karim Jan (P. W. 3) and Mst. Akhtar‑un‑Nisa (P. W. 5) proves that they had received some simple injuries near about the time of the fatal assault on Sangar Khan and it is, therefore, clear that they were present at the time of the fatal assault. The two witnesses have stated that they were on their way back to their home village, Salofia, when they were set upon by the two accused of whom Muhammad Aslam carried a hatchet and Muhammad Husain a sod. They deposed to Sangar Khan deceased having run after he had received one or two blows at the hands of Muhammad Husain and his having been caught up by the two accused and being dealt the fatal blow by Muhammad Aslam. The relationship between the two accused and these two witnesses is not only one by marriage but also of blood, because the two accused are the first cousins of Mst. Akhtar‑un‑Nisa, and I can see no reason why they should have falsely implicated the two appellants. Qazi a Muhammad Aslam who 1s the Headmaster of the Primary School of a neighbouring village Bhagar and was at the time of the assault on Sangar Khan deceased on his way to village Kahuta to attend a meeting of teachers and is an entirely independent witness, has named the two accused as the culprits and has corroborated the statements of Mst. Karim Jan (P. W. 3) and Mst. Akhtar‑un‑Nisa (P. W. 5). Further corroboration is furnished by the deposition of Muhammad Yusaf (P. W. 4) who is an entirely independent witness. In his statement before the committing Magistrate, Muhammad Aslam denied his presence at the time of the occurrence. In the statement which he made in the Court of Session he has explained the case against him to be due to the fact that he was not keeping Mst. Zardan the sister of Mst. Akhtar‑un‑Nisa, and had not divorced her in spite of the request of his father‑in‑law Karam Dad to do so. A state ment purporting to have been made by Muhammad Husain accused in the Court of the committing Magistrate is also on the record, but he made no statement at the trial. I will, however, deal with the case of Muhammad Husain after I have disposed of the case of Muhammad Aslam appellant. No evidence was produced in defence. The four eye‑witnesses have unanimously named the two accused as the assailants. As already mentioned, two of the four witnesses, namely Qazi Muhammad Aslam (P. W. 2) and Muhammad Yusaf (P. W. 4) are entirely independent and I do not see why their statements should not be accepted, nor do I see any valid ground fox not accepting the depositions of Mst. Karim Jan (P. W. 3) and Mst. Akhtar‑un‑Nisa (P. W. 5). I hold, therefore, that the prosecution has establish ed beyond all reasonable doubt that the death of Sangar Khan deceased was a direct result of the assault made on him by Muhammad Aslam appellant and Muhammad Husain accused. The blow given by Muhammad Aslam was on a vital part of the body, which makes it clear that he intended to cause the death of the victim, and the mere fact that only one blow was given cannot take his case out of the four corners of section 302 of the P. P. C. It is clear from the evidence that the appellant was directly and even vicariously liable for the simple injuries received by Mst. Karim Jan (P. W. 3) and Mst. Akhtar‑un‑Nisa (P. W. 5) and his con viction under section 323/34 P. P. C. is also up‑held. The sentence imposed on Muhammad Aslam appellant for the offence under section 302/34 P. P. C. is the minimum pre scribed by law for an offence of murder and as the sentence for causing simple hurt is by no means severe, I would dismiss the appeal of Muhammad Aslam. I will now address myself to the case of Muhammad Husain. In the letter which the trial judge sent to this Court referring the case of Muhammad Husain under section 341 of the Code of Criminal Procedure, it was said that Muhammad Husain was deaf and dumb, without mentioning if the other conditions for the application of section 341 of the Code of Criminal Procedure also existed. Section 341 of the Code of Criminal Procedure is in the following terms :‑ "If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial ; and, in the case of a ‑ Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit." The record of the statement of Muhammad Husain before the committing Magistrate is as follows:‑ "Q.‑Did you on the 15th of June 1952 along with your co‑accused commit the murder of Sangar Khan in the area of Kahuta town ? , A.‑Akhtar Nisa (P. W.) is my wife. On the day of occurrence I learnt that Sangar Khan had taken her away to Kahuta for getting divorce. I went towards Kahuta and on the way I met Sangar Khan along with Akhtar Nisa and Karim Jan. On my inquiry Sangar Khan told me that he had obtained the divorce of Akhtar Nisa. I then caught hold of Akhtar Nisa, my wife, and Sangarkhan then gave me stick blows and I retaliated causing him injuries with my hatchet. Aslam was not with me. Q.‑Anything else.. A.‑No." . Below this statement is the certificate in the usual form that the examination had been taken in the presence and hearing of the presiding officer and the record contains full and true account of the statement made by the accused. It is not clear by what means the learned committing Magistrate arrived at the conclusion that Muhammad Husain wanted to convey what was recorded, but it appears that the signs and gestures of Muhammad Husain accused made in the Court of the committing Magistrate were interpreted by Muhammad Aslam appellant to mean what was' recorded by the Magistrate. It appears obvious to me that Muhammad Aslam had interpreted the signs made by his brother Muhammad Husain in a manner most favourable to himself. If the hatchet had been with Muhammad Husain, one fails to see why all the four eye‑witnesses, two of whom, namely, Qazi Muhammad Aslam (P. W. 2) and Muhammad Yusaf (P. W. 4), are entirely independent, should have deposed that the dangerous weapon was carried by Muhammad Aslam. It is true that the signs and gestures made by a deaf and dumb may by proper interpretation be recorded to read like a rational statement, but that interpretation in order to be reliable must proceed from an independent source. If I were to accept the record made by the committing Magistrate of the statement of Muhammad Husain, it would appear that Muhammad Husain was not only not insane but could be made to understand the proceedings, which will make section 341 of the Code of Criminal Procedure inapplicable to his case Before section 341 of the Code of Criminal Procedure car apply the following things must be held to exist:‑ (i) that the accused is not insane, (ii) that though not insane the accused cannot be made to understand the proceedings to which he is a party. The learned Sessions judge in his letter referring the case of Muhammad Husain to this Court has not said that Muhammad Husain could not be made to understand the proceedings but it is clear that the intention of the learned Sessions judge was to say so. On full consideration of the material on the record and after observing Muhammad Husain as he appeared in this Court, I am satisfied that his case was covered by section 347. of the Code of Criminal Procedure. The powers which this Court possesses on a reference made to it with regard to the case of an accused who, though not insane, cannot be made to understand the proceedings, are given in section 341 of the Code of Criminal Procedure. My reading of this section is that on a case coming before it under that section it is open to this Court to pass any order it considers fit in the circumstances of case. That order may be of sending the case back to the trial Court, to acquit the accused or, if hi is proved to be guilty, to pass on him any sentence allowed by law. As, for the reasons which I have already mentioned, I am satisfied that Muhammad Hussain was‑ one of the assailants of Sangar Khan, I proceed to consider what offence was proved against him. There is no doubt that he is guilty of the offence under section 323 of the Pakistan Penal Code because he is proved to have caused single injuries not only to the deceased but also to Mst. Karim Jan (P. W. 3) and Mst. Akhtar‑un -Nisa (P. W. 5). I am, however, doubtful if Muhammad Husain accused can by the application of section 34 of the Pakistan Penal Code, be made vicariously liable for the murder of Sangar Khan committed by Muhammad Aslam. Section 34 of the Pakistan Penal Code will have application only if it were established that the fatal blow dealt by Muhammad Aslam was a result of a pre-concerted plan between him and his deaf and dumb brother Muhammad Husain. Whether or not the offence committed resulted from a pre‑concerted plan between the accused persons is a question of fact which leas to be determined on the evidence in the case, direct and circumstantial. I have no intention of laying down that a deaf and dumb person cannot form an intention common with another person to commit an offence, but before such an inference is drawn, the evidence with regard to it must be very cogent. The deaf and dumb being afflicted with a double disability may not have fully understood what his companion or companions intended to do, because while his companions may, be intending to convey to him that they intended to kill a person, he may ire under the impression that they intended merely to beat him. If it were in evidence that Muhammad Husain accused had continued beating the deceased even after he had dropped down as a result, of the blow given by his companion, It would not perhaps have been unsafe to infer that he shared his brother's intention to cause the death of the victim, but the evidence can the record is that the fatal blow dealt by Muhammad Aslam was the last one to be dealt. It is true that Muhammad Aslam carried a hatchet but as hatchets are not carried by people of this class necessarily for committing assaults, the carrying of a hatchet by Muhammad Aslam cannot be used as a circumstance tending to point to the common intention of the two assailants being to cause death. Moreover, it is not established that it was not a chance encounter and if it were that section 34 of the Pakistan Penal Code becomes difficult to apply. In these circumstances I am riot prepare, to hold that the fatal blow given by Muhammad Aslam was proved beyond all reasonable doubt to have been dealt in furtherance of the intention which he shared with his brother. Muhammad Husain, and I would, therefore, holding that the latter could not be made vicariously liable by application of section 34 of the Pakistan Penal Code for the offence of murder. committed by Muhammad Aslam, acquit him of the charge of murder. This leaves only the question of sentence which Muhammad Husain should suffer for the offence under section 323 of the Pakistan Penal Code to be dealt with. It is proved that he caused a number of injuries and, in my view, the maximum sentence prescribed for an offence of causing simple hurt by section 3230 of the Pakistan Penal Code would be the only appropriate sentence. I would, therefore, sentence Muhammad Husain to one year's rigorous imprisonment. ORTCHESON, J.‑I agree. A. H. Appeal dismissed.