P L D 1954 Lahore 309 (PLP)

ORTCHESON, J.‑Khuda Bakhsh, aged 21 years, and Sohrab aged 24 years, have been convicted and sentenced to death under section 302 P. P. C. by the learned Additional Session Judge, Multan, for the murder of Mst. Sakina. Both have appealed, and the case is also before us for confirmation of the death sentences under section 374 Cr. P. C. The two accused are first cousins. Mst. Sakina deceased is Sohrab accused is stepsister. On the death of Muhammad, his widow Mst. Sharma (P. W. 8) was married to one Sanjar and Mst. Sakina lived with her mother and stepfather and was not brought up with Sohrab accused. Khuda Bakhsh accused gave his sister in marriage to Sohrab, who in return promised to have Mst. Sakina married to Khuda Bakhsh, being supported in this proposal by one Nazar Muhammad Bappi, Lambardar. Mst. Sharma and her brother Ghulam Husain (P. W. 5), however, did not agree and eventually married lust. Sakina to Ghulam Muhammad (P. W, 10). This action gave rise to bitter resentment on the part of the two accused, and, according to the prosecution, they made no secret of their intention to do away with Mst. Sakina. Ghulam Muhammad accordingly informed Pir liakhsh Lambardar (P. W. 7), who questioned the accused. They assured him that Ghulam Muhammad's allegation was false, and Pir Bakhsh 'was satisfied, in leis turn reassuring Ghulam Muhammad. The accused had not in reality abandoned their intention, however, and on the night between 2nd and 3rd August 1952 they proceeded at about midnight to Ghulam Muhammad's courtyard, Khuda Bakhsh being armed with a spade and Sohrab with a hatchet. Mst. Sakina and her husband were both sleeping on the same charpoy. Ghulam Muhammad had got up a short time before to drink water and was not asleep, although his eyes were shut. Suddenly he heard a sound and saw the two accused standing near the head of the bed. The noise that had attracted his attention was the result of a spade blow inflicted by Khuda Bakhsh on Mst. Sakina. Ghulam Muhammad then saw Khuda Bakhsh giving a second blow to the deceased on her neck, and Sohrab also inflicting injuries on her with his hatchet. Ghulam Muhammad is positive that Sohrab gave two hatchet blows on Mst Sakina's chin and near her temple respectively and thinks, though he is not certain, that this accused may have given a third blow. Ghulam Muhammad raised the alarm, bringing first Allah Bakhsh (P. W. 11) and then Khairan (P. W. 12) to the spot. According to his statement in the Sessions Court Allah Bakhsh arrived in time to see the accused using their weapons. Khairan was too late to witness the occurrence, but as he was running to the scene he met the accused. Sohrab was still holding his axe, but Khuda Bakhsh had dropped the spade in his flight. Ghulam Muhammad first tried to get into touch with Nazar Muhammad Bappi Lambardar but found that he was absent from the village, and sent one Allah Ditta to fetch Pir Bakhsh Lambar?dar (P. W. 7). On Pir Baksh's arrival he and Ghulam Muhammad set out for Police Station Sadar Multan, but when they reached a village by the name of Buapur they learnt that the Sub‑Inspector was at Luthar, situated at a distance of some eigh?teen miles from the scene of the occurrence. The two went there and Ghulam Muhammad lodged the report Exh. P. C. at 10 a.m. on 3rd August 1952. On reaching the spot Ch. Fazal Din, Sub‑Inspector (P. W. 14) carried out the usual investigation and sent the body of the deceased for post‑mortem examination. Sohrab accused was arrested on 5th August and Khuda Bakhsh the following day. It may here be remarked that as some influential persons in the Ilaqa, in?cluding Malik Nazar Muhammad Bappi, were interesting them?selves in the accused, the Sub‑Inspector had the statements of the principal prosecution witnesses recorded as a matter of precaution tinder section 164 Cr. P. C. by Mr. Ejaz Ahmad, Magistrate First Class (P. W. 31). Noting incriminating was recovered fro .n the possession of either Khuda Bakhsh or Sohrab, but on 6th August Khuda Bakhsh apparently wished to make a judicial confession. He was not taken immediately to 3 Magistrate as the Sub‑Inspector was making efforts to recover this accused' bloodstained shirt, an endeavour in which he was unsuccessful. Khuda Bakhsh's confession (Exh. P. K.) was recorded by Mr. Ejaz Abroad (P. W. 13) on 9th August. In this statement which he later retracted, he alleges that Mst. Sakina was betrothed to him, bat that latter Mst. Sharma and Ghulam Hussain P. Ws. married the girl to Ghulam Muhammad, referred to in the confess?ion by his alias of Kala. Khuda Bakhsh does not admit the motive put forward by the prosecution, however, but alleges that when he wished to water his land, Ghulam Muhammad's tenants refused to allow him to do so without Ghulam Muhammad's permission. The accused accordingly went on the night of the occurrence to Ghulam Muhammad's house. Ghulam Muhammad called him in. Khuda Bakhsh entered the compound and saw Mst. Sakina and Ghulam Muhammad lying on the same bed. Thinking that Ghulam Muhammad had presented him with this provocative sight deliberately, he became enraged and attacked Mst. Sakina with the kehi he was carrying, dealing one blow with the blade of the implement and two with the back. Mst. Sakina died almost instantaneously and, throwing away his spade at the spot, Khuda Bakhsh went to police Station Sadar Multan to give himself up. The Sub‑Inspector had however gone to Luther. Khuda Bakhsh eventually found him at village Panj Koha and related what had happened, whereupon he was arrested. In the concluding portion of his confession Khuda Bakhsh emphasises that he alone was res?ponsible for the murder, Sohrab having no concern with or knowledge of it. Before the Committing Magistrate, on the other hand, this accused put forward the story that the murder was committed by Ghulam Muhammad himself, one Ramzan having been found in his (Ghulam Muhammad's) house. The post‑mortem examination of the body of the deceased was carried out on 4th August 1952 at 7‑15 a.m. by Dr. Sheikh Ata Ullah, Medical Superintendent, Civil Hospital Multan (P. W. 1). In view of the position taken up by Khuda Bakhsh it is necessary to describe the injuries found in detail. They are as under :‑ (1) An incised wound 3?" x 1" behind the left ear deep to the bone, the skull bone being cut. (2) An incised wound on the left cheek 1" x ?", deep to the soft part. (3) An incised wound along the left side of the lower jaw near the chin, 1?", x ?", deep to the bone, which was cut superficially only. (4) An incised wound on the left side of the neck just below the lower jaw 2" x 1" deep to the soft parts. (5) An incised wound 2" x ?" on the left side of the head crescent shaped and 3" above the left ear hole. The bone under?neath was both cut and broken. (6) An incised wound across the left ear 2" x ?", the cartilage being cut. Death was due to extensive fracture of the skull bones and injury to the brain caused by injuries No. 1 and

5. According to the doctor "all the injuries were caused by some sharp‑edged weapon, which was a heavy one in the case of injuries Nos. 1 and 5". Death must have been almost instantaneous. Although the doctor states that the weapon used in inflicting injuries Nos. 1 and 5 was heavy, it must be mentioned that in cross-examination he stated that the other injuries could also be caused by the kehi Exh. P.

1. The position of Khuda Bakhsh accused has already been given Sohrab denies all knowledge of the occurrence and ascribes the case to party faction. According to him he and his stepsister Mst. Sakina were always on friendly terms. The most important witness for the prosecution is, of course, Ghulam Muhammad (P. W. 10). I see no reason why his evidence should not be believed. Although the defence attempted to cast doubt on the assertion that Mst. Sakina and Ghulam Muhammad should be sleeping on the same bed in the presence of Allah Bakhsh (P. W. 11), it is to be noted that Khuda Bakhsh accused himself in his confession, which, despite his protestations to the contrary was voluntarily made, supports the prosecution story on this point, If Ghulam Muhammad was sleeping with Mst. Sakina, he must have been awakened, or if, as he states, he was not asleep, had his attention attracted, by the sound of the first blow inflicted by Khuda Bakhsh on Mst. Sakina with his spade. The blow was a brutal one, and is unlikely to have been inflicted noiselessly. Once he was awakened or his attention drawn to the presence of the assailants, he was sufficiently close to identify them. Learned counsel for the defence has asked why the assailants should choose a moonlit night, his argument apparently being that such a night would not have been selected if .the occurrence had been carefully planned. I do not, however, consider that this fact by itself is sufficient to refute the prosecution allegation that two assailants and not one took part in the attack and that the murder was com?mitted in pursuance of the common intention of the two accused. The defence contend that the kehi Exh. P. 1. was too heavy a weapon to have been responsible for any of the injuries found on the person of the deceased, but the weapon was produced before us and I do not consider that there is much force in the defence argument. The spade was, as such implements go, not a particu?larly heavy one, and injuries Nos. 1 and 5 are sufficiently, serious to be the result of blows inflicted with Exh. P.

1. The defence have drawn attention to Ghulam Muhammad's statement that the two assailants were standing near the bead of the bed, and argue that the injures found on the deceased could not have been caused by two men standing side by side in such a: position. The contention is that, apart from the direction of the injuries, the culprits would have interfered with each other. I am not impressed with this argument. Ghulam Muhammad's statement, although it may represent the position of the assailants at one stage of the attack, does not exclude the possibility, rather the probability, that they did not remain through?out rooted to the same spot. It also cannot be said that the nature of the injuries inflicted on the deceased is inconsistent with the prosecution story that two men took part in the attack. Although I do not accept the contention of the defence that injuries Nos. 1 and 5 are too light to have been inflicted with the kehi Exh. P 1, the nature of the remaining injuries is such as to indicate the use of a somewhat lighter weapon. It may however be remarked that as all the injuries are incised, Khuda Bakhsh's statement in his confession that he gave some blows with the blade of the spade and others with the back, stands contradicted. It is also strongly urged that Sohrab is unlikely to have taken part in the murder of his own stepsister, but, as pointed out by the learned Sessions Judge, Mst. Sakina and Sohrab were not brought up together and therefore the bond of affection between them was probably less strong than in the case of a brother and sister reared in the same household. It must also be borne in mind that if the prosecution story is correct, Sohrab must have felt himself under an obligation to effect a marriage between Mst Sakina and Khuda Bakhsh in return for his own union with Khuda Bakhsh's sister, and it is not surprising that he should have deeply resented the action of Ghulam Husain and Mst. Sharma in marrying Mst. Sakina to Ghulam Muhammad. Learned counsel for the defence has directed attention to the kabin nama (Exh. P. W. 5/A). This document, which relates to the marriage of Mst. Sakina to Ghulam Muhammad is dated 2nd May 1951, and it is pointed out that in consequence the marriage must have taken place more than a year before the occurrence, thus contradicting the statement of the prosecution witnesses that Ghulam Muhammad and Mst. Sakina were married only about five months before the murder. The record does not, however, show that either Ghulam Muhammad or Ghulam Husain was asked to explain this discrepancy. Too much must not therefore be made of it. It is argued on behalf of the defence that Mst. Sakina appears to have been naked or almost naked at the time of the occurrence, and that it is unlikely that she would have been lying in such a condition with her husband. The murder took place however, in the month of August, and apart from the ambiguity of the expressions used with regard to the position of the clothing in the post‑mortem report, on which this argument of the defence is founded. I do not consider it extraordinary if Mst. Sakina threw off her shirt and shalwar during the night. Doubt is sought to be cast on Ghulam Muhammad's evidence by reason of his not having interfered during the attack on his wife. The witness was, however, completely unarmed while the two assailants were carrying formidable weapons, and, according to the learned Sessions Judge, Ghulam Muhammad is not a man of impressive physique. It is therefore not altogether surprising if he considered discretion to be the better part of valour. I also do not consider that there is great force in the defence contention that if the murder had been planned, a spade is unlikely to have been used. On the contrary, a kehi, can be used with great effect, and this is by no means the first case in which a deliberate murder has been committed by means of one. The defence have drawn attention to some minor discrepancies in the statement of Ghulam Hussain. For example, it is pointed out that whereas in the Sessions Court his story was that he was awakened by the sound of the first blow, before the Committing Magistrate he alleged that on waking up he found that blows had already been given to his wife by the accused. Again, attention is drawn to the fact that Ghulam Husain denied having stated to the Committing Magistrate that when Sohrab was inflicting hatchet blows to his wife, Khuda Bakhsh was standing by his side. Such discrepancies are not of such a nature as to cast doubt on the truth of the witness's statement taken as a whole, nor does the fact that Ghulam Husain seems somewhat confused on the question of when Ghulam Husain and Mst. Sharma reached the spot, dis‑credit him. In my opinion, therefore, Ghulam Husain is speaking the substantial truth. The next eyewitness relied upon by the prosecution is Allah Bakhsh (P. W. 11). The defence contend with respect to him that the reason he has given for his presence at the spot on the night of the occurrence namely that his wife has shortly before given birth to a child, is not convincing. It is argued that the wife must have had other women who could have helped her and that it was not necessary for Allah Bakhsh himself, who normally resides at the house of his father‑in‑law Sardar, to have been sleeping in Ghulam Husain's haveli that night. The witness has, however, explained that although some women did help his wife during the day, they were not willing to attend her at night, and this explanation does not appear improbable. ? Much has also been made of the alleged discrepancy between Allah Bakhsh's contention in his statement recorded under section 164 Cr. P. C. that he came from his own house, and his deposition before the Sessions Court that he came from the house of his father‑in‑law Sardar. The statement recorded under section 164 is, however, not a detailed one, and the argument of the learned Sessions judge that by the expression "my own house" the witness really meant the house of Sardar is plausible. A more serious contradiction is that subsisting between his earlier allegation in his statement under section 164 Cr. P. C. (Exh. D. B.) that when be reached the spot he saw the accused running away and his present position that he arrived in time to see some blows actually being inflicted. It is possible that the later version may be in the nature of an improvement, and it would accordingly be safer to accept the first, but even if he did not actually witness any part of the occurrence, the fact that be saw the accused escaping immediately afterwards strongly supports the prosecution. The third important witness is Khairan (P. W. 12), who also states that while he was running to the spot, be met the accused and that Sohrab was carrying an axe. It is true that whereas he stated before the Sessions Court that he was sleeping with his cattle in a field, he had stated before Mr. Ejaz Ahmad that he was sleeping in a haveli, but this discrepancy is not sufficient to form a basis for rejecting his whole evidence. He app ears to be a completely disinterested witness except that the defence elicited from him in cross‑examination that Khuda Bakhsh favoured the defence in a criminal case brought by the witness's brother Ghulam Muhammad against two persons, Hayat and Fazal. The case in question apparently related only to some house, and was not of a serious nature. I do not believe that Khuda Bakhsh's conduct in that case could have caused sufficient resentment in the mind of the witness to induce him falsely to implicate Khuda Bakhsh and Sohrab on a charge of murder. We are not told when the case was filed, and Sohrab accused had apparently no connection with it. I accordingly consider Khairan to be a reliable witness. The defence have naturally called attention to the discrepancy between the story of the murder as put forward by the prosecution and Khuda Bakhsh's confession Exh. P. K, and it is argued on behalf of Sohrab that the confession must be taken as a whole. This argument would hold good if the confession were the only evidence relied upon by the prosecution for the conviction of Khuda Bakhsh, but such is not the case here, and when there is the statement of three witnesses that both Khuda Bakhsh and Sohrab took part in the occurrence, the prosecution is just and right A in accepting the portion of the confession consistent with the prosecution story and rejecting the remainder. In my opinion, Khuda Bakhsh's confession is in accordance with the facts only to the extent that he himself was one of the assailants, the portion exculpating Sohrab being false. One point requiring special mention is the allegation that Khuda Bakhsh inflicted some blows with the blade of the kehi and others with the back. Apart from being somewhat unnatural, this contention is not in accordance with the medical evidence, which shows that all the injuries inflicted were incised. I also refuse to believe that if Khuda Bakhsh had gone to Ghulam Muhammad's house in the dead of night, Ghulam Muhammad would have called him in and allowed him to see himself and Mst. Sakina sleeping on the same bed. Three witnesses have been produced by the defence, namely Haji Malik Ahmad Yar (D. W. 1), Malik Haq Nawaz (D. W. 2) and Allah Wasaya (D. W. 3). The learned Sessions judge has given good reasons for rejecting the statement of these witnesses, which is to the effect that the murder was committed in the absence of Ghulam Muhammad, one of the most cogent of these reasons being that if the witnesses are speaking the truth, their natural course was to make statements to the police at the earliest opportunity, which they failed to do. No other argument put forward on behalf of the defence has any force and taking all the evidence into consideration I find it established that Khuda Bakhsh and Sohrab were the assailants of Mst. Sakina. The next question for determination is the nature of the offences committed. With respect to Khuda Bakhsh there is no difficulty. The nature of the injuries inflicted and of the weapon used, taken with the fact that the injuries were inflicted on a vital part of the body, leave no doubt that Khuda Bakhsh intentionally caused the death of Mst. Sakina. He is therefore guilty under section 302 P. P. C. In the ordinary course, it would have also been a simple matter to determine the liability of Sohrab accused, but the position has been complicated by the fact that the learned Additional Sessions judge adopted the most unusual course of amending the charge by deleting section 34 P. P. C. The order is as follows ;‑ "I have gone through the charge framed by the Committing Court. It appears to be not only confused, but also wrong from a legal point of view. A charge under section 302/34 appears to have been framed against both the accused persons as pointed out by Ch. Muhammad Nazir, Advocate, counsel for the complainant on the understanding that the prosecution was perhaps not clear as to whose blow in particular proved fatal. This may be a layman's point of view but the legal conception of the vicarious liability as understood under section 34 of the Pakistan Penal Code is something different. If a number of persons hatch up an organized plan to commit an offence and in pursuance of the pre‑arranged plan they act in concert, they will then be deemed to have acted with a common intention as held in Mahbub Shah v. Crown (A I R (32) 1945 P C (118).) On the principle of vicarious liability the accused who did not deal any blow at all but he was participating in the organizing of the plan and all of them were acting in concert then he would be held liable under section 34 P. P. C. In the case before me, both the accused persons, according to the evidence recorded by the Committing Magistrate, are said to have equally dealt blows to the deceased. In these circumstances the principle of law embodied in section 34 P. P. C. determining the vicarious liability would not apply. According to the prosecution case, as it is, both the accused persons shall have to be charged only under section 302 P. P. C. Before reading out the charge to the accused persons and before receiving their plea in this Court, I proceed to amend the charge and the amendment would be that I would strike off section 34 P. F. C. from the charge‑sheet and both the accused persons would now stand charged under section 302 P. P. C. as principal offenders ". The above order reveals a fundamental misconception regarding the applicability of section 34 of the Penal Code The learned Sessions judge is apparently under the impression that when the prosecution is in a position to state clearly what injuries were inflicted by each of several accused, the section has no application. This is of course wrong. The question of what injuries were inflicted by a particular accused in cases to which section 34 applies is im?material, the principle underlying the section being that where two or more persons act with a common intention, each is liable for the act committed as if it had been done by himself alone. In other words, even if A and B each inflict a fatal injury, the liability of A is not confined to his own injury but extents, also to that inflicted by B. Similarly, B is liable, for the injury inflicted by A. The view taken by the learned Sessions judge has resulted in its becoming impossible to maintain Sohrab's conviction under section 302 P. P C. The two fatal injuries, Nos. 1 and 5, were according to the prosecution delivered with the spade Exh. P.

1. None of the remaining injuries was sufficiently serious to cause d path and none is even proved to be grievous, it being not establish?ed that there has been any permanent disfigurement of the head or face or destruction or permanent impairing of the powers of and member or joint as a result of the blow inflicted by Sohrab. His offence, therefore, on the basis of the charge as framed by the learned Sessions judge is one under section 324 P. P. C. only. It has been urged on behalf of the Crown that a fresh trial should be ordered, but I do not agree. It was open to the Crown to take steps at an earlier stage to have the charge as framed by the learned Sessions judge re‑amended. I therefore, do not consider it expedient to order a retrial at this stage. The appeal of Sohrab accused is accordingly accepted, his conviction and sentence under section 302 are set aside and his conviction is altered to one under section 324 P. P. C. There remains only the question of sentence. In the case of Khuda Bakhsh I see no reason to interfere. The murder was brutal and premeditated, and there are no extenuating circum?stances. The death sentence passed oil Khuda Bakhsh is accordingly confirmed. For the offence under section 324 P. P. C. of which Sohrab is guilty I consider that a sentence of eighteen months rigorous imprisonment will meet the ends of justice and order accordingly. A. H. S. A. Rahman, J.‑I agree.