1968 P Cr (PLP)

G. M. Shah for Applicant. Date of hearing: 21st June 1966. This criminal revision application filed by one Ashiqali brother of deceased Akbarali prays that notice be issued to the Respon dent No. 1 Amirali Ladiwalla to show cause why the sentence of transportation for life imposed upon him by the learned Additional Sessions Judge, Karachi, in the trial for the murder of deceased Akbarali should not be enhanced to the supreme penalty of death. It may be mentioned here that 12 accused persons were tried by Mr. Mehdiali Siddiqui Additional Sessions Judge Karachi to respect of the murder of deceased Akbarali. At the end of the trial the learned Judge convicted only three of them, namely, the present Respondent No. 1 Amirali Ladiwalla, Murad Ali Lashari and Karim Bux. The latter two were convicted under section 302/34, P. P. C. and were each sentenced to death. The respondent No. 1 Amirali Ladiwalla was convicted under section 30''/109. P. P. C. and sentenced to transportation for life. 2. 1 have heard Mi. G. M. Shah the learned Advocate appearing on behalf of the applicant. He has taken me through certain passages in the elaborate judgment covering 91 page: of the learned Additional Sessions Judge to show that the Respon dent No. 1 having been found guilty of abetment of murder the proper sentence that should be imposed upon him is the death penalty. I have carefully perused these passages commencing from pages 85 and 86 of the judgment. It is no doubt true that at page 86 of the judgment the learned Additional Sessions Judge has expressed himself in these words "Then from the whole record I have come to the conclusion based on concrete facts of evidence that the murder was com mitted under the abetment of Ladiwalla. Let us start from the beginning." The learned Judge then proceeds to consider the case as against opponent Ladiwalla and finds that it was doubtful whether this opponent was actually present at the time and place of the murder of deceased Akbarali. He then goes on to consider the precise offence that the opponent Ladiwalla abetted. He states- "So, the evidence of instigation against Ladiwalla is water tight and fully supported by the dying declaration in the F.

1. R. But, did Ladiwalla actually direct murder as distinguished from a slightly "lesser injury of Akbarali?" The learned Judge considers this rhetorical question raised by him and as appears from his judgment hg reaches conclusion that opponent Ladiwalla did not actually abet the offence of murder though he did abet a slightly lesser injury to deceased Akbarali. He then quotas a passage from a book (name unmen tioned) by Morgan and Macpheson which states that the abettor is responsible for the act done even though that act may not precisely be the act actually abetted or intended to be done. On this basis of reasoning the learned Judge reached the conclusion that opponent Ladiwalla was guilty under sections 302/109, P. P. C. and awarded him the lesser sentence of transportation for life. In view of this finding of the learned trial Judge that opponent Ladiwalla had in the final analysis not actually abetted the offence of murder though murder did in fact take place, I am reluctant to issue notice to this opponent to show cause why his sentence of transportation for life should not be enhanced to the supreme penalty of death. 3. 1 may mention here that the papers sent to me by the office for the hearing of this criminal revision application included the record in Criminal Appeal No. 159/66 filed in this Court on behalf of the opponent Amirali Ladiwalla from which I observe that this opponent has been released on bail at first as a result of an interim order passed on 6-6-66 which order was confirmed by a learned Judge of this Court after hearing the A. A: G. on 13-6-66 1 am informed at the Bar that an appeal against this order is being preferred to the Supreme Court. However, that may be, 1 mention these facts here as the record in Criminal Appeal No. 159/66 has been tagged along with the record in the present criminal revision application. I find no force in this Criminal Revision Application, which is hereby dismissed summarily. Application dismissed.