P L D 1954 Federal Court 77 (PLP)

AKRAM. A. C. J.‑This appeal is with our leave obtained by appellant Bahar who was put upon his trial along with a Police Head Constable Muhammad Umar for the murder of two men, Hotumal, a goldsmith, and his neighbour Taghial, a tailor. The learned Sessions judge convicted and sentenced the appellant to death under sections 302/34 and to transportation for life under section 394 P. P. C., the latter sentence to come into operation in case the sentence of death was not confirmed. Against this judgment an appeal was taken to the Chief Court of Sind, but the appeal was dismissed and the sentence of death was confirmed. From this judgment of the Chief Court leave to appeal was obtained, as stated above, for a consideration of the question whether in the ‑circumstances of the case, the conviction of the appellant under section 302 by the application of section 34 of the Penal Code was right. Counsel for the appellant contended that the evidence disclosed a previous concert and arrangement on the part of the appellant to join with the co‑accused Muhammad Umar in the commission of robbery only but not in committing the murders which were solely individual acts of Muhammad Umar with which the appellant had no concern. But, in order to determine the intention of a person, it is very seldom that one can expect to find positive affirmative evidence, generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances. In the present case A there is evidence to show that the appellant was near Muhammad Umar when he fired the shot killing the goldsmith Hotumal (see deposition of P. W. 2) that thereafter they ran together in the same direction, but were pursued by P. W. 4, and the deceased Taghial, and then Muhammad Umar looked back and fired at his pursuers b killing Taghial dead at a distance of about 167 feet from the scene of the first murder (see deposition of P. W. 4); that some others in the meanwhile joined in the pursuit and ultimately P. W. 10 succeeded in capturing the appellant and taking away from him the dagger which 'was kept concealed in his trousers as also in recovering the bag containing the booty which Muhammad Umar had passed on to the appellant. Further in the judicial confession of the appellant recorded under section 164, there appears the following statement made by the appellant :‑ "As agreed I went to triangular park the day before yesterday at tea party time. Jamadar Muhammad Umar turned up there and remarked "Good that you have come". He asked me to wait there as he would come after being to his house. I waited there for half an hour when he came and showed me a black 32 bore six chambered pistol and said "This is the pistol which I have now bought and we should take it loaded and then we have nothing to fear". It was loaded with six bullets. He had no other bullet with him. The pistol 'was lying in his black waist coat. I told him "Friend, see that you do not unnecessarily commit a murder as it is an offence and a sin against God". On this he replied "Keep quite. You are a mad fellow. I am a saneman. I shall show the pistol to the Bania and terrify him and rob the property and pass on to you. You be with booty and I will face the rest". Then Jamadar Muhammad Umar gave me a dagger which he had brought with himself saying that I should carry it as it was necessary that I should have one to defend against enemy and that I should give it to him in case his bullets were exhausted so that he should make use of it. I therefore hid in the folds of my trousers". It is sufficiently clear from the above evidence as also from the Confession that the possibility of having occasion to use the revolver, and the dagger was present in the mind of the appellant, although subsequently he suggested that he was against their use but, even in this respect P. W. 10 relies his assertion by deposing "He (appellant) tried to take out something from the folds of his trousers but I made it impossible for him to take it out". On the facts and circumstances set out above, we are of opinion that the appellant participated in the intention of Muhammad Umar of committing murder in the course of the dacoity, if needed, and that consequently section 34 of the Penal Code has been rightly applied to the case of the appellant. We see no reason to interfere with the decision of the Courts below. The appeal is accordingly dismissed. A. H. Appeal dismissed.