1969 PLP 490 (SCMR)

Abdus Salam Khan, Advocate Supreme Court instructed by A. N. M. Nasiruddin, Attorney for Appellants. M. A. Khondaker, Advocate Supreme Court instructed by A. Wadud Mia, Attorney for the State. Date of hearing : 14th January 1960. MUHAMMAD MUNIR, C. J.‑This is an appeal from the judgment of a Division Bench of the High Court of East Pakistan at Dacca dismissing an appeal from a conviction under section 304, Part lI read with section 34 of the Pakistan Penal Code. The appeal was instituted on special leave being given by this Court to consider the question whether on the evidence section 34 was applicable. Having heard counsel in support. of the appeal, we are of the opinion that the conviction for culpable homicide must be upheld. The appellants are Seraj Mia, the President, and Nidhu and Masrab Ali, chowkidars of the Jasodal Union. Seraj Mia was a friend to Shamsuddin Ahmad who was a member of a neighbouring Union. Shamsuddin was murdered and one. Wasuddin who was accused of that murder was absconding.. On receiving information that Wasuddin was hiding in the house of a relation Seraj Mia sent Abdul Ali Dafadar to arrest him. Wasuddin was arrested and was brought to the office of the Union Board where under the direction of Siraj Mia he was beaten by Nidhu and Masrab with the object of obtaining from him a confession of the murder of Shamsuddin. Siraj Mia also joined in the assault. After having been beaten with cane sticks Wasuddin was taken inside the office where he was again beaten by the two chowkidars and Siraj Mia. In the course of the beating he received a blow or blows on the chest which fractured a rib, a portion of which pierced into the right lung. He became unconscious and though sent to the hospital died. On these facts, the appellants were found to have committed an offence under section 304, Part II, and they were all sentenced to 7 years' rigorous imprisonment each. The medical evidence shows that besides the injury on the chest Wasuddin had multiple scattered ecchymosis of various sizes on the whole of the back, the lower half ante‑lateral aspect of the right and left thighs and both arms and forearms including dorsum of both hands and multiple scattered .abrasions of different sizes on the front of both legs. Thus the man appears to have been thoroughly beaten and struck on all parts of the body except the head and the face. The sole question which has to be determined in the appeal is whether on the findings which are supported by the evidence of three eye‑witnesses that the appellants assaulted the deceased first outside the Union Board's Office and then inside the Office, they rendered themselves liable to conviction under section

304. There can be no doubt that in the circumstances section 34 was attracted because all three joined in the assault and administered a prolonged beating to the unfortunate man. On the evidence it is not proved which of them caused the injury that led to the deceased's death, but this is wholly immaterial because the criminal act having been a joint act, the harm caused must be presumed to have been intended by each of them. And since the beating was given under his orders, Siraj Mia is responsible for the death also by reason of section 109 of the Pakistan Penal Code. The conviction is therefore correct and the appeal is dismissed. Appeal dismissed,