P L D 1963 (W (PLP)

(3) Whether the accused bad common intention to commit his murder. He came to the conclusion in the affirmative on all these points, and in consequence convicted the appellants. Three Assessors sat through the trial with the learned Additional Sessions Judge, and the learned Judge agreeing with the majority decision of the Assessors, has convicted the appellants.

11. On the point whether the deceased Shahzada met a violent end on the night of the 21st October 1961, at the scene which is indicated in the sketch Exh. 5, opposite the tonga stand and almost in front of the traffic police stand at the junction of the Preedy and Sangster Street, there can be no doubt. The ocular evidence of P. Ws. Wazir Hyder, Dulara, Hamid Beg, Makwa and constable Aziz Shah, together with the testimony of the medical officer, Jinnah Hospital, Dr. Bashir Ahmed, Exh. 30, undoubtedly points to the manner in which Shahzada met his death. The post‑mortem examination revealed five incised injuries on his person of the following description (1) Incised wound 1 " x " peritionial cavity deep in right hypo‑condrium, vertical in direction. (2) Incised wound 2" x " x peritonial cavity deep left to mid‑line, upper abdomen, with small gut coming out of the wound, which is perforated at two points. (3) Incised wound 3" x " x " above right collar bone outer end, (4) Incised wound left forearm, lower part outer aspect 1"x "x " and (5) Incised wound front right forearm 4" x " x skin deep.

12. Dr. Bashir Ahmed, the C. M. O. Exh. 30, who initially examined Shahzada has stated, besides describing the nature of the injuries on his person, that Shahzada was unconscious, that his breath smelt of alcohol. The injuries were caused by some sharp‑edged weapon like a knife, and Dr. Hassan who performed the post‑mortem examination, stated that injury No. 2 with corresponding injuries to the bowels, mysentry and aorta was sufficient in the ordinary course of nature to cause death, which was due to shock and haemorrhage as a result of a stab wound to the abdomen inflicted with a knife. There is, therefore, no doubt as to the cause of the death of the deceased Shahzada, and that it was due to the knife injuries inflicted at the time of the incident at the scene as alleged by the prosecution. '

13. The implication of the three appellants was sought to be established by the prosecution on the testimony of the five eye witnesses, P. Ws. Wazir Hyder, Exh. 11, Dulara, Exh. 12, Hamid Beg, Exh. 13, Makwa alias Muhammad Ahmed, Exh. 14, and Nathu, Exh.

16. Wazir Hyder is the boy who as we have already indicated, is responsible for the incident in the case. P. W. Dulara a milk‑seller is a common friend of the deceased, the appellants and Wazir Hyder and knew them before, and the previous intimate connections of the appellant Saadat Mian with Wazir Hyder, and of Wazir Hyder shifting his affections to Shahzada about a month before the incident. According to P. W. Dulara, the deceased and Saadat were friends before Shah zada became intimate with Wazir Hyder, and after Wazir Hyder had done so, Saadat had quarrelled with Shahzada about six or seven days before the murder. P. W. Hamid Beg is the tonga driver who usually parks his tonga at the Tonga stand near the Empress Market in Saddar, which is a busy locality at all times of the day and night. The Empress Market is one of the two largest and oldest markets in Karachi, and at a short distance from the tonga stand is the traffic post at which constable Aziz Shah was on duty. It was in P. W. Hamid Beg's tonga that the deceased Shahzida and Wazir Hyder seated themselves. Wazir Hyder having been persuaded by the deceased to accompany him to his house, instead of attending a Qawali near Burns Garden. Dulara was standing nearby, and it was whilst Hamid Beg was waiting with his tonga for additional fare, when the incident took place. Makwa works at the water trough at the tonga stand near the Empress Market and makes a living by watering tonga horses. He was watering one such horse, a short distance away from Hamid Beg's tonga, when he saw the deceased, who was lame, and Wazir Hyder, accompanied by‑ Dulara, come up to Hamid Beg's tonga, Wazir Hyder and Shahzada sat in the tonga and Dnlara stood by, and the three appellants suddenly came up and assaulted Wazir Hyder, and finally Saadat Mian stabbed Shahzada deceased. P. W. Natho is a milk‑seller. He was returning home from his brother's shop in Jacob Lines at about 10 p. m. and passed by the tonga stand near the Empress Market, where he heard some commotion and saw a person lying inured, and another standing with an open knife in his hand. That person and his companion started to run when this witness reached the scene. Those two persons were appellants Saadat Mian and Anwar. Hamid Beg tongawala and others had tried to intercept the assailants without success. A policeman came to the scene having been called there by one of the crowd. In an identification test he had picked out Saadat Mian and Anwar.

14. Besides the testimony of the three witnesses, there is the identification by the prosecution witnesses, Hamid Beg and Makwa, of the appellants in a test held on the 25th October with the result we have already referred to. In the context of the admissions by the appellants that they knew Wazir Hyder and Dulara before the test, it is apparent that these two witnesses were not put to the test and quite rightly. The appellants have made allegations of having been seen by some of the witnesses before the test, but we are not convinced after having been taken through the evidence recorded in minute detail, that there is any such basis for this allegation. We have no doubt that the identi fication test conducted by Mr. Hizbaruddin in the Central Jail on the 25th October 1961, was held with due care and caution, and that the complaint made to the learned Magistrate at the time of the test by the appellants was in an effort to set up some sort of defence at a later stage. There is no evidence that the investigating officers at any stage brought the appellants to the tonga stand or that the prosecution witnesses had an opportunity of setting the appellants at the Thana before the test which was held about three days after the incident.

15. Mr. Hassanally for appellant Saadat Mian has attacked the conviction of his client on the ground that Saadat Mian's name did not transpire until 12 hours after the incident, and that P. Ws. Wazir Hyder and Dulara were sent for owing to their previous connections with the deceased, and had falsely implicated the appellants, and this in the context of the admission of S. H. O. Fazlur Rehman that Wazir Hyder was contacted at 7 a. m. on the morning of the 22nd October, and that if Saadat Mian lives behind the quarters of Wazir Byder, why he was not arrested immediately. It was urged by Mr. Hassanally that this was not a case in which Saadat Mian had not been identified as there was no evidence of sufficient light at the scene, and as according to him, the entire incident took place swiftly during which the deceased was stabbed by someone who was neither seen nor identified by anyone of those present at the time, since it was not possible to do so. Advantage hab also been sought to be taken by this appellant and others of the names of the appellants not being mentioned in the F. I. R. which is an incorporation of the message received from constable Aziz Shah from the Jinnah Hospital after he had taken the deceased there. Finally, it was contended that P. Ws. Wazir Hyder and Dulara cannot be relied upon without sufficient corroboration and that Hamid Beg, the tonga driver could not have identified any of the appellants and that Makwa being one‑eyed and believing what he said, should have immediately informed constable Aziz Shah of all its details, and that it is unbelievable that Natho reached the scene and stayed there in time to see appellant Saadat's face. It is urged that Dulara's presence cannot be believed as he must have sat in another tonga, and that it was a strange circumstance that Wazir Hyder and Dulara should have nude themselves scarce from the scene, and lastly that the prosecution have given no explanation for the repeated utterance of the name of Moulabua by the deceased as testified to by constable Aziz Shah, and as mentioned in the report this contable sent over the telephone to the Canton ment Police Station.

16. In the overriding circumstances, that F. Ws. Wazir Hyder and Dulara were well‑known to the deceased and the appellants and in the details that both these witnesses have given as to the previous connection of Wazir Hyder with Saadat Mian and later of Wazir Hyder with the deceased Shahzada, and the admissions of the appellants that Wazir Hyder's wavering connections and intimate carnal relations were a matter of distress on account of which they complained to his father, we have examined the testimony of Wazir Hyder, specially, in great detail, and also of P. W. Dulara, and tested what they have said with great caution before arriving at our conclusions. We do so as in our view P. Ws. Dulara and Wazir Hyder, in whatever they have stated in regard to the manner in which the incident took place, have been fully and substantially corroborated by the testimony of P. Ws. Hamid Beg, Makwa and Natho. The learned Additional Sessions Judge has described the evidence of Wazir Hyder and Dulara as natural, consistent and worthy of credit, and further there was not the slightest doubt of their presence at the time of the incident. Indeed in his view, the evidence of these two witnesses alone was sufficient to bring home the guilt of the appellants. We fully agree with this opinion. Dulara and Wazir Hyder have fully implicated all the three appellants, and it is our considered view that there is overwhelming evidence implicating appellant Saadat Mian with deliberately stabbing the deceased Shahzada with a knife and of having inflicted fatal injuries on him at the time of the incident. We are also convinced that the two other appellants Anwar and Sultan were present at the time, but what their presence and conduct at the time of the incident amounts to in law we shall discuss at a later stage. Every circumstance of the prosecution case has been supported by reliable testimony and at every stage. It is important to note that Makwa's name has been mentioned by constable Aziz Shah in his telephonic message from the Annah Central Hospital. It was Makwa who informed constable Aziz Shah that a certain person had been knifed, and that those persons who had done so, had run away. Constable Aziz Shah also refers to seeing prior to the incident, the deceased and Wazir Hyder proceeding towards the tonga stand from the liquor shop. Besides P. W. Hamid Beg, the tonga driver against whom no bias whatsoever has been alleged much less established, has‑fully supported the prosecution case. Further there is the evidence of P. W. Makwa, and except that there was a mere allegation unsupported by any evidence by appellant Sultan that he had at one time an argument with him over brokerage of the purchase of a horse through Makwa, there is nothing to show that Makwa is otherwise interested against the appellants. Indeed, it is important to bear in mind that Sultan's contention made in the course of his statement before the learned Additional Sessions Judge, has not even been put to Makwa in the course of an otherwise detailed cross‑examination of this witness. Natho is a meat seller, who was passing by that way when he saw Shahzada lying injured on the ground, and Saadat Mian holding a knife, standing there, with appellant Anwar Ahmed nearby. Both the appellants took to their heels on his arriving there.

17. Besides, injuries were noticed on the person of appellant Saadat Mian. There is no proof that he was maltreated by any, of the police officers or that he was beaten by them and S. H. O. Fazlur Rehman has repelled this allegation. Injuries were noticed on Saadat Mian when he was produced before S. H. O. Fazlur Rehman by S. I. Shamshad Hassan at about 1 a.m. that day. Doctor Bari of the Jinnah Hospital stated that they were of the following description caused by friction against hard and blunt substance (1) Abrasions " x 1/3" inner side right elbow. (2) Abrasion " x " on back left elbow. (3) Abrasion " x 1" on front left knee. Reasonable explanations for most of the grounds urged by Mr. Hassanally have been given by S. H. O. Fazlur Rehman, Exh.

18. He has stated that from the Jinnah Hospital and when he took over the investigation of the case, he went to the scene at about 12‑10 that night, prepared mashirnama and recorded the statements of constable Aziz Shah, Makwa and others. The next morning he recorded the statements of Wazir Hyder and Dulara, and it was through them that the names of the appellants were revealed. It is, thereafter, that A. S. I. Shamshad Hassan was deputed to arrest the appellant, Anwar being produced at about I1 a.m. and Saadat Mian at about 1 p.m. Sultan was arrested at the pointation of Wazir Hyder the same day. We see nothing unusual in this conduct of the investigation and we have no hesitation in believing its details, specially as we are convinced that there is no reason for S. H. O. Fazlur Rehman or any of the police officers to falsely implicate any of the appellants, since there has not been even the slightest suggestion of enmity against anyone of them at any stage of the case. It is S. H. O. Fazlur Rehman who has stated in his testimony that there was a great deal of light at the scene of offence. This was caused by the electric street lights that were alight at the scene. The mashirnama Exh. 21 which is a memo. of the inspection of the site prepared at about 10 minutes after midnight by S. H. O. Fazlur Rehman mentions that there was sufficient electric light at the spot. In these circumstances, we have no hesitation in believing the corroborative evidence of Hamid Beg, Makwa alias Muhammad Ahmed and of Natho in regard to the manner in which the incident took place, and the active and deliberate part that appellant Saadat Mian took. We are conveinced that this is not a case of mistaken identity, for it was not a dark night but a well lit area and besides Wazir Hyder and Dulara were admittedly well known to the appellants and the deceased, and were present at the time. What they have stated has been fully supported and in a entirely disinterested manner by the tonga driver Hamid Beg and Makwa. We are convinced that Hamid Beg was able to see the entire incident and Saadat Mian and the other two appellants from where he was sitting, waiting for the additional fare to start his tonga, and also that Makwa, watering a horse of a tonga a few feet away from Hamid Beg's 'Tonga, was able to see and identify the three appellants long enough to mark their features. We do rot consider P. W. Natho a chance witness, and we agree with the opinion of 'the learned Additional Sessions Judge that Makwa like Hamid Beg is an independent and natural witness. We repeat that it is an extremely important circumstance that the name of Makwa is mentioned in the F. I. R. and we cannot accept the contention that Makwa is a false witness, principally as the details of what Makwa states in his evidence he witnessed, has been mentioned by constable Aziz Shah in his telephonic message from the Jinnah Central Hospital. As far as appellant Saadat Mian is concerned, we are convinced beyond doubt that he was and has been established proved to be the assailant of Shahzada of having inflicted fatal injuries on Shah zada's person that day. We have also referred to 'the identi fication test which was held on the 25th October, and that in our view nothing has been shown why the fact that Makwa and Hamid Beg picked out at least two of the assailants correctly should not be accepted. Indeed Makwa was able to pick out all the three appellants as being present at the time of the incident that day. We have, therefore, no hesitation in confirming the conviction and the sentence passed on appellant Saadat Mian, as there is no doubt that this is a most brutal and deliberate murder, deserving of no sympathy, with no extenuating circumstances, having been committed out of jealousy against Shahzada, for having the affections of the catamite Wazir Hyder.

18. We have also examined the case of appellant Anwar and Sultan, in the context of the contention whether there was evidence sufficient for implicating them both of an offence under section 34, P. P. C., namely, that of common intention with appel lant Saadat Mian of committing the murder of Shahzada. It has been urged on behalf of these two appellants that the prosecution have been unable to urge any circumstance to indicate that the appellants had knowledge of Saadat Mian being armed with a knife and/or that their common intention also was to murder Shahzada. Further, that there was nothing to indicate that the appellants were in agreement with the sudden intention of Saadat Mian to stab the deceased, or that there was a preconcert by these appellants before the incident, or that they together with Saadat Mian who had already armed himself with a knife, had laid in wait for the deceased and Wazir Hyder. It was also urged that there was no evidence of any previous quarrel between appellants Anwar and Sultan on one hand and Shahzada on the other in regard to Wazir Hyder.

19. Reliance was placed on Rahmatullah v. The State (P L D 1961 Lah. 221), where it was held that the words "in furtherance of the common intention of all" in section 34 of the Penal Code, meant that all the persons charged must have consented to the commission of the crime committed, i.e., the act done must be the act con templated by all. It was further held that of course when a man accompanies thieves, one of whom is armed with a revolver, he must know it to be likely that a murder will be committed if the attempt to steal is resisted, but further than that it is not safe to go. Knowledge is not the same thing as intention. Further if) the number of those taking part in this affair had been five or more, section 149, P. P. C. or section 396 would have been applicable. In that case, the position would have been different. In the present case, only 3 persons took part and in the absence of any evidence from which it can be inferred that they had a common intention prior to the occurrence, to use the revolver if resisted, the common intention which can be safely attributed to them is, at the worst the intention to commit robbery, with the added knowledge that murder was a crime which was likely to be committed in the prosecution of their common object.

20. Reliance was also placed on Hamida Bano v. Ashiq Hussain and others (P L D 190 S C 109 at p. 125) where it was remarked that the "jointness of action was envisaged in section 34, P. P. C. which consists of translation of intention commonly held, into effect. The Judicial Committee of the Privy Council has held in the case of Mahbub Shah v. The King Emperor (27 I A 148) that proof of pre‑concert is necessary in order to bring a criminal act performed by several persons within the ambit of section 34, but in a later case that of Mamand v. The King Emperor (A I R 1946 P C 45), it was clarified that the existence of such preconcert could be established even by proof of acts per formed by individuals after the completion of the main crime. Even regarding the case in the light of preconcert, there seems no doubt whatsoever that such a consensus can be achieved among the participants in the crime immediately before its execution, e.g., where the crime is exited by some action on the part of the person against whom it is committed." The learned Additional Sessions Judge, besides holding that all the three appellants had played a specific part in the crime, in con victing appellant Saadat Mian of the offence of murder, opined that the appellants Anwar and Sultan did not deserve the capital sentence, for although they had not caused the actual stabbing, they had "facilitated" the task of Saadat Mian by holding the deceased at the time of the murder. On examining the prosecution evidence in respect of these appellants, it is quite clear to us that although these two appellants were present with appellant Saadat Mian at the time Shahzada was Sabbed, there is conflicting evidence as to what they actually did at the time. P. W. Wazir Hyder has stated in the curse of his cross‑examination that although these two appellants dragged the deceased down from the tonga they left him there, and were not holding him when the appellant Saadat Mian inflicted knife injuries on the deceased. He went on to clarify that Shahzada was getting up from the ground after being pulled there, when Saadat Mian gave him the two knife blows P.W. Dulara in the Committal Court stated that only appellant Attwar had pulled Shabzada down from the tonga. P. W. Hamid Beg has also stated that it was only appellant Anwar who pulled the deceased down from the tonga, wheieafter appellant Saadat Mian stabbed the deceased with his knife. It is in consequence of this that he was only able to pick out Saadat Mian and appellant Anwar Ahmed in the identification test. According to P. W. Makwa, both Anwar.and Sultan appel lants pulled Wazir Hyder from the tonga. P. W. Natho, Exh. 16, clearly implicates only appellant Saadat Mian and Anwar Ahmed. This witness bad seen nothing of the incident whilst it actually took place. We are inclined to accept the view that even if the presence of these two appellants together with Saadat Mian at the time of the incident is accepted as it must be, the prosecution have not discharged their burden of establishing premeditation by these two appellants with appellant Saadat Mian, to murdering Shah zada. There is no evidence of knowledge, much less of intention that the three appellants had met in concert that evening, or that Anwar and Sultan were aware that Saadat Mian was armed with a knife, or that they bad been seeking the deceased and Wazir Hyder That evening previous to the time of the incident, and there is nothing at all to indicate that these two appellants Anwar and Sultan had any grievance or previous connection with Wazir Hyder to make them jealous in concert with Saadat Mian of Wazir Hyder's affection for deceased Shahzada. Whilst, there fore, we have no doubt that these two appellants were present at the time of the incident, we cannot in justice hold that they can be imputed with the necessary ingredients of section 34 for the C murder of Shahzada. It may be that in the heat of the moment and being personally affected as Saadat Mian was, he suddenly, whipped out a knife and stabbed Shahzada. It is quite likely that the intention of these two appellants was merely to give Shahzada a thrashing, and in that respect to assist Saadat Mian. It cannot be said with any certainty that by merely pulling down the deceased from the tonga after having first pulled down Wazir Hyder from the tonga, these two appellants facilitated the murder of Shahzada by appellant Saadat Mian. In the context of the rulings referred to above, these two appellants are in our view undoubtedly entitled to the benefit of our doubt.

21. We, therefore, arrive at the following conclusions : that appellant Saadat Mian was rightly convicted of the murder of Shahzada and, therefore, of an offence under section 302, P. P. C., and that the sentence of death by hanging was justified for this brutal murder. Therefore, we dismiss his appeal and confirm the sentence of death passed upon him. For the reasons we have given, we are convinced that appellants Anwar and Sultan are entitled to the benefit of the doubt. We, therefore, allow their appeals and order that they should be forthwith set at liberty, if not required in any other case. K. B. A /A. H. Appeal dismissed.