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Criminal Appeals Nos. 566, 567 and 580 of 1963, decided on 21st August 1964.
, S. 154‑‑Statement made during and after commencement of investigation‑Cannot be treated as F.LR.‑F.I.R., what amounts to‑Information disclosing no offence, not to be treated as such‑Information disclosing com mission of offence, even though on telephone, to be treated as F. L R.
, S. 60‑Deposition of witness -Witness not cross‑examined to disclose source of her knowledge about incident deposed to‑Evidence, in circumstances of case, not treated hearsay.
, Ss. 120‑B 8c 302‑Murder Criminal conspiracy‑Common intention‑Co‑conspirator joining subsequently---Part played by him held to be in furtherance of common intention.
Ss. 120‑A 8c 120‑B‑Conviction for offence under S. 120‑B‑ Mere association or forming common intention without anything more‑Sufficient.
A. Salam Khan with Habibur Rahman Sharif for Appellant (in Appeal No. 567 of 1963).
Farid Ahmad with Aminul Huq for Appellant (in Appeal. No. 580 of 1963).
Serajui Huq for Appellant (in Appeal No. 566 of 1963).
Abdul Hakinz Deputy Legal Remembrancer with Siddique Ahmad Choudhury, Syed A. N. M. Nasiruddin, Naimuddin Ahmed and Daliluddin Ahmad for the State.
.‑Criminal Appeal No. 566 of 1963 by appellant Mokhlesur Rahman Serang, Criminal Appeal No. 567 of 1963 by appellant Doctor Abdul Mannan and Criminal Appeal No. 580 of 1963 by appellant Abdus Sattar alias Abdus Sattar Dobash are being disposed of by this one judgment.
Appellant Mokhlesur Rahman Serang has been convicted under section 120‑B of the Pakistan Penal Code and sentenced to transportation for life thereunder. Appellant Doctor Abdul Mannan and Appellant Abdus Sattar have been, convicted under section 120‑B and also under section 302/34 of the Pakistan Penal Code. They have been sentenced to transportation for life under section 302/34 of the Pakistan Penal Code, no separate sentence having been passed under section 120‑B of the said Code.
The three appellants stolid charged under section 120‑B of the Pakistan Penal Code for criminal conspiracy of murdering Abdul Mannan Dobash, and the said act was alleged to have been done in pursuance of that conspiracy. Appellant Abdus Sattar Dobash and Doctor Abdul Mannan stood charged under section 302/34 of the Pakistan Penal Code in addition for intentionally committing the murder of Abdul Mannan Dobash on 22‑2‑1961 in furtherance of the common intention of both of them in pursuance of the conspiracy hatched by all the three appellants.
The occurrence took place at Yakubnager in the town of Chittagong at about 5‑30 p. m. on 22‑2‑61 in front of the office of the Firm Yakub Ali & Sons No. 11. Yakub Ali Dobash grand‑father of deceased Mannan Dobash, was a stevedore of the ships "Clan Line" and a big contractor, and a multi millionaire. On his death, his son Abdul Latif Dobash carried on the contract and stevedore business. Abdul Latif died leaving Abdul Gani a son by his first wife, appellant Abdus Sattar Dobash, a son by his second wife and Abdul Majid Dobash and Abdul Mannan Dobash, sons by his third wife, Begum Jan Appellant Mokhlesur Rahman Serang was in the employ of Abdul Latif Dobash and after the death of Abdul Latif, he grabbed some share in the stevedore business which is being carried on under the name and style of Yakub Ali & Sons. No. 1. The four sons of Abdul Latif Dobash had their separate business carried on under the name and style of Yakub Ali & Sons No.11.
The office of the partnership Firm No. 1 was at Doublemoorings whereas the office of the Firm Yakub Ali & Sons No. 11 was within the compound of the residential house of the four sons of Abdul Latif Dobash at Yakub Nager. Of the four sons deceased Abdul Mannan Dobash who was the most intelligent, led a sane and normal life. He was the managing partner of the partnership business but appellants Mokhlesur Rahman and Abdus Sattar were harbouring some grudge against him because the deceased stood as a bulwark against their design to grab the major portion of the income of the stevedore business.
On 18‑1‑61 a meeting of the Partnership Firm Yakub Ali & Sons No. 1 was held at its Doublemoorings office in which appellant Mokhlesur Rahman brought a proposal to change the name of the Firm from Yakub Ali & Sons to Mokhlesur Rahman & Sons. Appellant Sattar supported the proposal of Mokhlesur Rahman but deceased Abdul Mannan strongly opposed it. Sattar and Mokhlesur Rahman resigned from the partnership by way of protest on that very day. Thereafter enmity between Mokhlesur Rahman and Sattar on the one hand and deceased Abdul Mannan on the other became very acute.
On 21‑2‑61 Mokhlesur Rahman gave a notice to Abdul Mannan Dobash asking him not to proceed to Cox's Bazar according to his previous programme but asked him to attend a meeting to be held on 22‑2‑61 at the office of the Firm Yakub Ali & Sons No. 11 at Yakubnager. On 22‑2‑61 at 4‑0 p.m. Mannan Dobash went out in his own car for marketing. At about 4‑30 p.m. Mokhlesur Rahman and Sattar came to the house of appellant Abdus Sattar and after sometime they came out of the house and went to the house of Anglo‑Pakistani wife of appellant Sattar.
Mannan Dobash returned at about 5 or 5‑30 p.m. and he was showing the newly purchased garments to his children, which he had bought, in the drawing room. Laila, eldest daughter of Mannan Dobash, Panchu, son of Mannan. Dobash, Taskir and Kobbad, brothers of the wife of Mannan and the Aya to the children of Mannan Dobash were in the drawing room at that time. Nur Jahan Begum, wife of Mannan, was also in the drawing room at that time. They heard a row coming from the office of the Firm No. 11. Mannan asked his wife to keep "Iptahari" ready and left for the office. Laila, Panchu, Taskir Kobbad and Ali Ahmad accompanied him and Aya followed them.
In the verandah of the office Majid and appellant Sattar were quarrelling with each other and Mannan Dobash took his stand below the verandah of office and asked them not to quarrel, whereupon appellant Sattar shouted out "You are the root of all evils, why have you come here" and saying this he gave a push on the right shoulder of Mannan. Mannan any how managed to keep himself standing and then Sattar gave a kick to Mannan on his scrotum below the abdomen. Mannan gave out a cry "Mare Gelam" and fell down on the ground unconscious. Laila then shouted out "O Mother, Sattar had kicked my father and my father bad fallen on the ground."
Ali Ahmad Kobbad, Taskir, Mafzal, Shafi lifted Mannan from the ground and took him to the verandah of Majid which was close to the place of occurrence. Appellant Sattar then ran out and got into a black motor car which was at the gate of the house and drove the car himself and went towards the west. Mannan was then placed on a chowki on the verandah of Majid Mea. The Aya Amena began to fan him with a hand‑fan. Nur Jahan also came there. At that time appellant Doctor Mannan ca roe there accompanied by Yusuf, wife's brother of appellant Sattar. Yousuf had a doctor's bag in his hand. Doctor Mannan opened the doctor's bag, brought out a syringe which was filled up with injection and pushed an injection into the hand of Mannan Dobash. As soon as the injection was pushed, the tongue of Mannan Dobash protruded out. Doctor Mannan pushed the tongue of Mannan Dobash inside his mouth with one hand and gave a jerking to the chest of Abdul Mannan Dobash with the other hand. Thereafter Doctor Mannan left.
At that time two constables and one Daroga came and took their stand in the yard of Majid Mea. Soon after appellant Mokhlesur Rahman, appellant Doctor Mannan, Chand Mea and Memin came there. They took the Daroga and the constables to the upstairs of Majid. Then the dead body of Mannan Dobash was shifted to the building of Mannan Dobash.
After sometime appellant Mannan and one daroga came to the building of deceased Mannan. The daroga used the phone of deceased Mannan to ring up some body. After sometime the O. C. came there and ordered Doctor Mannan to remove the dress of deceased Mannan. Doctor Mannan then removed the shirt, sweater, pant from the person of Mannan Dobash. Then Doctor Mannan put the lungi of the servant of Mannan Dobash on the person of the deceased. The pant, shirt and the sweater were kept by Doctor Mannan behind the radiogram.
Then the O. C. the other daroga, appellant Doctor Mannan, appellant Mokhlesur Rahman and the appellant Sattar went to the house of appellant Sattar and after a few minutes appellant Mannan and the daroga (with beard) came and took the signature of Nur Jahan Begum, wife of the deceased, on a blank paper representing to her that it would be required for post‑mortem examination of the dead body. Then they removed the dead body from the building of the deceased Mannan Dobash.
The police did not take any effective steps for investigating the case for nearly three months. So, Nur Jahan Begum brought this conduct on the part of the police to the notice of the Superintendent of Police, Chittagong, by a petition. On 6‑6‑61 the S. P. visited the locality with the O. C. and directed the O. C. to take up the investigation of the case and from that day investigation was taken up by the O. C. who after completion of investigation submitted charge‑sheet against the appellant Abdus Sattar Dobash only under section 304‑A of the Pakistan Penal Code.
In course of the inquiry by the committing Court, appellant Mokhlesur Rahman and Doctor Mannan were also summoned and after completion of the preliminary inquiry, the committing Magistrate committed the three appellants to the Court of Sessions for trial under section 120‑B of the Pakistan Penal Code. Appellants Mannan and Sattar were also committed to stand their trial under section 302/34 of the Pakistan Penal Code in addition.
The defence has a plea of not guilty. The case of appellant Mannan was that he was called by Nur Jahan Beg um, wife of deceased Abdul Mannan Dobash, to treat her husband Mannan Dobash. He came and examined Mannan Dobash and declared him as dead. He did not push any injection to Mannan Dobash.
The case of appellant Mokhlesur Rahman was that he was not at all concerned in the offence. He never conspired with any body for murdering deceased Mannan Dobash. He was always very enthusiastic in looking after the interest of the widow and minor children of Mannan Dobash in the partnership and other business. Sultan Ahmed, the father‑in‑law of the deceased Mannan Dobash, wanted to manage the share in the partnership business on behalf of the widow and minor children of Mannan Dobash. But appellant Mokhlesur Rahman Serang understood the ill motive of Sultan Ahmed and he resisted it. That is why, according to the defence, three months after the occurrence he had been falsely implicated in the case at the instance of Sultan Ahmed.
The case of appellant Abdus Sattar Dobash was that he was not present at the time of occurrence and that he did not kick deceased Mannan Dobash, that Mannan Dobash might have died of heart failure as he was suffering from high blood pressure and heart disease all the time. He was also suffering from hydrocele. He might have also met with motor‑car accident. He had been falsely implicated in the case out of enmity at the instance of Sultan Ahmed, father‑in‑law of deceased Mannan Dobash.
The prosecution examined 13 witnesses. The defence did not examine any witness.
On these facts, the learned Additional Sessions Judge, in agreement with the unanimous opinion of the Assessors, convicted and sentenced the three appellants as above. Mr. Abdus Salam Khan, learned Advocate appearing for the appellants, has taken us through the long judgment and also the entire evidence in the case including the various exhibits. He has urged grounds 2, 6, 7, 8, 9, 11, 18, and 24 of the Memo. of appeal in No. 566 of 1963 which are as under:‑
"(ii) For that section 120‑B of the Pakistan Penal Code has no manner of application to the facts and circumstances of this case.
(vi) For that non‑reception of P. W. 2 Nur Jahan's First Statement made to the Police on 22‑2‑61 in evidence as F. I. R. and the refusal to treat the said statement as a statement under section 161, Cr. P. C. have led to a serious failure of justice.
(vii) For that rejecting of contradictions in the statements of the prosecution witnesses as being not material although they were relied upon for the purpose' of conviction has caused grave miscarriage of justice.
(viii) For that the learned trial Court has seriously erred in not drawing inferences adverse to the prosecution from the fact of non‑examination of the mother and brothers of the deceased, and father and her relation Malek, attesting witness to the aforesaid statement, Dr. Sudhir Ranjan Das, family physician of the deceased, Kobbad and Shafi who were examined in the committing Court and neighbours who came immediately after the incident.
(ix) For that the learned Court below has seriously erred in finding that the signed and attested statement of P. W. 2 Nur Jahan was subsequently fabricated on a blank piece of paper on which a signature of P. W. 2 Nur Jahan was obtained on the false pretext without taking into consideration the fact that the statement was attested by the father and another relation of her and taken admittedly in presence of her Hami, Tajunnessa and her Fupa Gani Sardar.
(xi) For that there being no medical or any other oral or circumstantial evidence to support the prosecution theory of death by injection of poison or death due to any serious injury, the learned Additional Sessions Judge ought to have held no case of murder or conspiracy to murder has been established.
(xviii) For that there being no documentary evidence or oral evidence except that of P. W. 2 Nur Jahan in support of the prosecution story that Mokhlesur Rahman brought a proposal to change the name of the Firm and that accused Sattar supported the same on 18‑1‑1961 in a meeting held at Doublemooring Office and that both Mukhlesur Rahman and Sattar resigned from Partnership and that Mukhlesur Rahman by a letter dated 21‑2‑61 asked the deceased to cancel his visit to Cox's Bazar and to attend a meeting on 22‑2‑61 the learned trial Court should not have relied on such verbal and belated allegation by a solitary interested witness who is obviously incompetent to prove such matters.
(xxiv) For that the presence of undigested food materials should have led the trial Court to hold that it was a proof in support of the genuineness of the statement of Nur Jahan made to police on 22‑2‑61 wherein it was stated that the occurrence took place after the Iftar and that it also affects the time of occurrence as alleged by the prosecution."
He has also urged that the learned Judge erred in not holding that in case of conflict between the statement of an ordinary witness and that of an official witness, the statements of the disinterested witnesses should prevail.
The grounds in all these Appeals are more or less common, and we propose to consider them, as we proceed.
The contention which has caused us the greatest anxiety, is the contention that "the non‑reception of P. W. 2 Nur Jahan's first statement to the police on 22‑2‑61 in evidence as F. I. R. and the refusal to treat the said statement as a statement under section 161 of the Code of Criminal Procedure by the learned Additional Sessions Judge, has led to a serious failure of Justice."
This first statement is, in substance, to the effect that after Iftar time on 22‑2‑61 her husband, on hearing a row coming from the office room of the house, came out and found that his brothers Abdul Majid and Abdus Sattar were quarrelling amongst themselves and that her husband intervened and in course of the quarrel, accused Abdus Sattar, in trying to go away, started his car and the said car dashed against the deceased Abdul Mannan Dobash who fell unconscious and on seeing that her husband was not regaining consciousness for some time, she called for Doctor Abdul Mannan who came and on examining the deceased, declared him to be dead.
This discloses a plain and simple case of a motor accident on the part of appellant Sattar and simple certification of death on the part of the appellant Doctor Abdul Mannan, and there is no mention of the appellant Mokhlesur Rahman therein at all.
This document is the trump‑card of the defence, and if this document be found to be genuine, then surely the burden of the defence is very much lightened.
Examining the document itself, it appears that it was written by P. W. 11 S. I. Azizul Huq. According to the defence, this statement is the F. I. R. P. W. 11 himself does not say that this is the F. I. R. His evidence is as under:
"I examined Nur Jahan Begum under section 161, Cr. P. C. at 11‑15 p.m. Malek also signed the statement made by Nur Jahan."
Earlier he has stated that under the direction of the O. C. lie looked into the G. D. entry No. 1472 dated 22‑2‑61 and immediately left for Yakubnager and on finding the dead body of Mannan Dobash lying in his own house, he took up investiga tion of the case. At 8 A. M. next morning he "resumed" the investigation. The investigation had thus fairly advanced, Nur Jahan signed the document and showed it to her father Sultan Ahmed and Abdul Malek, a relation of the deceased. The signatures of Nur Jahan, Sultan Ahmed and Malek have not, of course, been denied; but the positive statement of Nur Jahan is that her signature was taken on a white paper on the misrepresen tation that it will be required for postmortem examination. Her evidence is:---
"Dr. Mannan then put his Lungi (Ext. II) on the person of my husband. I did not send any information to the police. I do not know how they came there so quickly. At that time the condition of my mind was very bad. The O. C. then asked me to sign a white paper as that would be required in connection with the post‑mortem examination. Others were addressing him as O. C. So I came to learn that he was the O. C. The O. C. or none else asked me about the occurrence. Dr. Mannan, Mokhlesur Rahman, Sattar and the Daroga who came with Dr. Mannan took away the dead body."
There is also the evidence of P. W. 3 on this subject which is as under :‑‑
"I told the I. O. that Dr. Mannan and the bearded Daroga took the signature of my mother on a blank paper when she was in a state of senselessness on the plea that it would be required at the hospital for P. M. Ex4minatiog: "
There is, of course, the evidence of P. W. 13, the O. C. to the effect that P. W. 2 and P. W. 3 did not tell him about signature being taken on blank paper.
Both Nur Jahan and her daughter Laila have categorically stated that the Daroga took Nur Jahan's signature on a piece of blank paper, stating that it would be required for post‑mortem examination. Laila's statement is to the effect that Dr. Mannan and the bearded Daroga took her mother's signature on a blank piece of paper, and the evidence of P. W. 2 also indicates that Dr. Mannan was also there at that time. Nur Jahan has stated that she was in a very bad state of mind then and Laila has stated that her mother was almost senseless, which is only natural for a young wife whose husband met with sudden death.
Furthermore, the document in question bears some intrinsic evidence raising suspicion as to its bona fides. The elaborate statement made therein is not usually probable in the perturbed condition of mind. In its very nature, it seems to be a statement made in a cool and calculated manner. The statement is more or less in the nature of defence for appellant Sattar, than any allegation against him of having committed an offence by assault. It may be mentioned here that the defence case, as put forth, is that it was case of motor accident by Sattar and this statement purports to confirm that statement. What is stated in this document, seems to be absurd having regard to the evidence of uniform nature that Sattar gave a kick to the scrotum or abdomen of the deceased. Even this fact of a kick was not mentioned in this statement. Another reason why this statement does not appear to be genuine, is that after the statement was finished, there was still a long and unusual gap between the statement and the signature of Nur Jahan and the other signatures. The gap was attempted to be covered up by giving two certificates by the writer of the statement, namely, S. I. Azizul Huq, P. W. 11 one in English and another in Bengali to the effect that the statement was read over and explained to Nur Jahan and she admitted it to be correct. That long gap between the statement and the signature of Nur Jahan and the certificates just referred to, lead to the inference that the statement was not written first. It appears that the statement was filled in later on a piece of paper on which the signatures were already obtained. The learned Additional Sessions Judge who observed the demeanour of Nur Jahan and Laila has made an observation in the judgment that he was convicted that they were speaking the truth in stating that Nur Jahan's signature was obtained on white paper. The above view is also supported by the conduct of P. W. 11 Azizul Huq himself. His evidence is that on the night of occurrence he only examined Nur Jahan and Abdul Hakim and at 8 a.m. next morning resuming the investigation, he examined nine witnesses, including the two wives and a daughter of Sattar. The nine witnesses excepting Kobbad and Shafi, are all related to or henchmen of appellant Sattar. The relevant evidence of P. W. 11:---
"I examined Nur Jahan Begum and Abdul Hakim. I arrested the accused Abdus Sattar at 12‑1 a.m. I also examined him ......
At 8 A. M. in the morning I resumed the investigation. I examined Majid, Halima Khatun wife of Nazir Ahmed, Shafi, Ayesha Begum (wife of Sattar), Farida, daughter of Sattar Dobash, Naju Mia son of Abdul Hamid of Alkaran, Fatem Mary wife of Abdus Sattar, Mst. Husne Jamal, daughter of late Md. Ishaq, Kobbad son of Sultan Ahmed."
He did not examine Nur Jahan's father Sultan Ahmed and Abdul Malek whom he admittedly found in the house of the deceased on the night of occurrence. He also did not examine Taskir. Ahmed, Begumjan, mother of the deceased arid others. It is thus obvious that this S. I. Azizul Huq, P. W. 11 directed his attention more towards gathering evidence on the defence side than that on the side of the prosecution. It has been urged on the side of the appellants that the impugned statement also bears the signatures of Sultan Ahmad and Malek, brother of Nur Jahan's sister's husband and this indicates that this statement is genuine. All the relations of the deceased must have been in a highly perplexed state of mind and it was nothing unnatural for; these two men to be induced at such an hour to put their signatures on blank paper on the misrepresentation that this would be required for post‑mortem examination, without which disposal or burial of the dead body would stand to be delayed. Their signatures, in those circumstances, cannot put the seal of genuineness on the impugned statement:
On a consideration of all this evidence and the circumstances and probabilities, the only reasonable conclusion is that Nur Jahans' signature was obtained on a blank piece of paper and that she did not make that statement to the police. That being the position, this spurious document cannot be treated as F. I. R. or even as a statement under section 161 of the Code of Criminal Procedure.
It is pertinent to observe here that P. W. I1 recorded this statement as F. I. R. and then being faced with difficulty in view of the fact that investigation had already started, he characterised it as a statement under section 161 of the Code of Criminal Procedure. In any event, this statement cannot be F. I. R. as the statement, even assuming that it is genuine, was made during and after the investigation started.
The earliest information regarding the occurrence in point of time was given by appellant Sattar himself at the Kotwali police station which was recorded in G. D. entry No. 1463 dated 22‑2‑61 at 7‑30 p. m. This G. D. entry is Exh. 2. It contained an information that when Sattar was entering into his quarter to take Iftari at 6. p. m., his two brothers Majid and Mannan Dobash (deceased) along with others attacked him and assaulted him with fists and blows. He stated also that there was apprehension of breach of peace and sought police help. This G. D. entry does not disclose any cognizable offence, and as such, it cannot be treated as the F. I. R. This has more the look of creating favourable evidence. Two hours thereafter G. D. Entry No. 1472 dated 22‑2‑61 Exh. 1) was recorded at 9‑30 p. m. on the telephonic message received from one Sadaruddin to the effect that Mannan Dobash was killed by Sattar. This was the first recorded information disclosing a cognizable offence and hence, this G. D. Entry Exh. 1 is really the F. I. R. in this case.
Assault on the deceased by Sattar near the office at about 6 p. m. has been testified to by P. W. 3, Laila, P. W. 6 Ali Ahmed (son of Aya), P. W. 7 Mafzal Ahmed and P. W. 10 Askir Ahmed, a brother of P. W. 2 Nur Jahan. In substance, their evidence is that Sattar and Majid were quarrelling with each other when the deceased Came there and intervened, whereupon Sattar gave him a push by saying "You are the root of all evil" and then gave him a kick on the scrotum or abdomen, whereupon the victim fell down to the ground and Laila shouted out "Sattar had kicked my father and he had fallen on the ground."
P. W. 2 Nur Jahan has testified that on hearing such cries of Laila, she ran to the spot and found her husband being taken to the verandah of Majid and he was placed on a chowki by Mafzal, Kobbad, Taskir, Ali Ahmed and Shafiq P. W. 5 Amena Khatun (Aya) has also deposed to the same effect.
The circumstances which warrant the conclusion that the three appellants conspired to murder Mannan Dobash are the following : ‑---
(1). On 18th January, 1961 there was a meeting of the Partnership Firm Yakub Ali and Sons No. 1 at its Doublemooring Office in which Mnkhlesur Rahman brought a proposal for changing the name of the firm to Mokhlesur Rahman & Sons. Sattar supported Mokhlesur Rahman but Mannan Dobash opposed the proposal which could not thus be carried through and this intensified the enmity of Mokhles and Sattar' who were already inimically disposed towards deceased Abdul Mannan Dobash. The relevant evidence on the subject is that of P. W. 2 as under :‑
"My husband was the Managing partner before his death. My husband was not pulling on well with the accused Sattar and Mokhlesur Rahman Dobash. On 18‑1‑61 the accused Mokhlesur Rahman and Sattar both resigned in a meeting of the firm held at the office of the firm at Doublemooring. Mokhlesur Rahman wanted to change the name of the firm from Yakub Ali & Sons to Mokhlesur Rahman Dobash. Sattar supported Mokhlesur Rahman. But my husband opposed it. The enmity between my husband and them became very much intense after their resignation."
As a result of the failure of the proposal, Mokhlesur Rahman and Sattar resigned on protest from partnership.
Mr. Khan has objected that this is not evidence in the case inasmuch as it was mere hearsay on the part of Nur Jahan.
It does not appear from her cross‑examination that there was any suggestion that this was hearsay. If she was asked about the source of her knowledge; she might have explained how she came to know these facts. In those circumstances, we are no disposed to treat this evidence as inadmissible on the score of its being hearsay. There does not appear to be any good reason to discard this statement of Nur Jahan. It appears that she has no personal enmity with Mokhlesur Rahman, nor is there any evidence that her father and brothers were inimical towards him. Feelings between Sattar and Mokhles on the one hand and Mannan Dobash (deceased) on the other, were further' embittered by letting out of a house belonging to the firm by Sattar to one Anthony without consulting Mannan Dobash, the Managing Partner (Vide Exh. 2).
In the background of what has been stated by Nur Jahan it appears that Mokhlesur Rahman was deficitly inimically disposed towards the deceased and Sattar was very‑ thick and thin with Mokhles who set him up as against his brother deceased Mannan Dobash. It is only natural that since his failure to change the name of the firm, Mokhlesur, Rahman was harbouring a serious grudge against Mannan Dobash, thinking that so long as Mannan Dobash was in the world of the living, insurmountable difficulties would be coming his way. In this background, the motive for the conspiracy also becomes apparent.
(2) Notice dated 21‑2‑61 was served by Mokhlesur Rahman asking deceased Mannan Dobash not to proceed to Cox's Bazar but to attend a meeting at the Yakubnager office on 22‑2‑61 (Vide P. W. 2 and Exh. 6).
(3). Sattar and Mokhles entered together in the house of Sattar at about 4‑30 p.m. After sometime they went to the house of Anglo Pakistani wife of Sattar, as stated by P. Ws. 2 and 3
P. W. 2:------"I saw Mokbles and Sattar entering into the house of Abdus Sattar and after sometime they went out of the house of the accused Sattar. The dwelling building of Sattar will be 5 or 6 cubits away from my house . . . . .The accused Sattar and Mokhlesur Rahman then went to the house of Anglo Pakistani wife of Sattar".
P. W. 3:------"After sometime my uncle, Sattar and Mokhlesur Rahman (identified them on the dock) went to the house of Sattar from the direction of the road and after 2 or 4 minutes, they left that house and went to the house of Anglo‑Pakistani wife of accused Sattar. The house of Sattar is to the east and the house of Anglo Pakistani wife of Sattar is to the south of our house. After a few minutes Dr. Mannan came to the house of the Anglo Pakistani wife of Sattar in his car".
P. W. 6 Ali Ahmed saw Dr. Mannan going to the house of appellant Sattar in a black car at about 4 p.m.
P. W. 6 : "When I was entering into the house of Mannan Dobash I found Dr. Mannan (identified) going to the house of Sattar Dobash in a black car . . . . . . I then found Sattar and Mokhlesur Rabman coming towards the office from the house of the Anglo Pakistani wife of Sattar."
P. W. 3 also saw this. Thereafter P. W. 6 saw Sattar and Mokhles coming towards the office from the house of the Anglo Pakistani wife of Sattar. P. W. 10 saw Mokhles and Sattar going to the house of Sattar shortly after 4 p.m.
P. W. 10 :"I saw Mokhlesur Rahman and Sattar (identified in the dock) going to the house of Sattar. After sometime they left that house."
In her cross‑examination P. W. 2. Nur Jahan stated that she told in the lower court that Mokbles and Sattar came to the office in the afternoon and finding her husband absent, they waited in the house of the second wife of Sattar, but she maintained that she was not deposing falsely being tutored by her father and she saw Sattar and Mokhles going to the house of the Anglo Pakistani lady from the house of Sattar. The evidence of the I. O. P. W. 13 shows that P. W. 2 did not tell him that she saw Sattar and Mokhles going to the office of Sattar and then to the house of his Anglo -Pakistani wife. According to the I. O. P. W. 6 also did not tell him that Mokhles and Sattar went towards the office from Sattar's house. The evidence of P. W. 6 that he found Dr. Mannan going to the house of the Anglo Pakistani wife of Sattar, has not been controverted and there is nothing in his cross‑examination or in the evidence of the I. O. to show that he did not make such statement to the latter.
The evidence of P. W. 10 is that he saw Mokhlesur Rahman and Sattar going to the house of Sattar a little after 4 p.m. This statement has not been challenged in cross‑examination nor is there anything to suggest that he did not make any such statement to the I. O. As regards the alleged contradiction between the evidence of the witnesses and the I. O. one significant fact is that although it was apparently a case of cold‑blooded murder of a millionaire, at a time of day when it was not very dark, the police took up a curious attitude in the case. Appellant Sattar was the accused in the case and yet P. W. 11, S. I. Azizul Huq examined only his relations and henchmen with the exception of only one or two witnesses who were brothers of P. W. 2. This officer did not examine witnesses on the side of the prosecution and the investigation was later taken away from him by the O. C. P. W. 13 M. A. Raquib who did not conduct himself any better. There is nothing to indicate that even he examined Sultan Ahmed, Kobbad and others on the prosecution side till after P. W. 2 complained to the S. P. about the callous attitude of the police. It was only after the complaint that the S. P. visited the house of P. W. 2 on 6‑6‑61, with the O. C. P. W. 13 and asked P. W. 13 to investigate the case properly. This police officer could not be expected to change the old attitude towards the case at once, simply because the S. P. desired him to investigate the case properly thenceforth. In those circumstances, we have suspicion that the statement of the witnesses were not recorded correctly and the later investigations was evidently sought to conform to the previous investigation, as the same officer was in charge of both. The S. P. who ultimately made a change of the Investigating officer, might as well have placed a D. S. P. or an Inspector in charge of the investigation under his personal supervision in a case of the present kind. Be that as it may, in the peculiar circumstances of the case; we would prefer to accept the version of the witnesses concerned that they did make the challenged- statement to the I. O. rejecting the evidence of the I. O. on this point.
Considering all the aspects of the question, we accept the prosecution version‑ regarding the association of the three appellants immediately before the occurrence.
(4) Altercation between Sattar and Majid in front of the office attracted Mannan Dobash and as soon as he intervened, Sattar gave him a push and then a kick on the scrotum or the abdomen (vide P. Ws. 3, 6, 7 and 10 corroborated by P. W. 2).
(5) Doctor Mannan came along uncalled for from the, house of the Anglo‑Pakistani wife of Sattar being accompanied by Yousuf, brother‑in‑law of Sattar, who carried the Doctor's bag. At the time of the ushering in of the doctor, there was a cry of "Moulvi Sahab has come" which apparently scared away Nur Jahan. This is very significant. The fact that Yousuf, brother- in‑law of Sattar, carried the doctor's bag, is also a very significant fact. Doctor Mannan on his arrival at once pushed an injection on the left hand of Mannan Dobash with a syringe which was already filled up. The relevant evidence is that of P. W. 2, which is as under:
Immediately after, Dr. Abdul Mannan and Yusuf, brother- in‑law of the accused Sattar came there. Yusuf was carrying the bag of the Doctor Mannan. Then some one shouted out "Moulvi Sahab had come" I went behind the purdah. But I found Dr. Mannan pushing an injection in the left hand of my husband. The injection was already kept prepared in the syringe. As soon as the injection was pushed the tongue of my husband protruded out. Dr. Mannan then tried to push in the tongue. Some shouted that he was dead. I then came out. Dr. Mannan then lifted his bag for going out. At that time one Daroga with two constables came there: P. W. 3: "Dr. Mannan came there accompanied by Yusuf, brother‑in‑law of the accused Sattar. Yusuf had a Doctor's bag in his hand. Dr. Mannan pushed an injection to my father's hand. Injection was kept prepared in the syringe from before. The tongue of my father protruded out as soon as the injection was pushed. Dr. Mannan was then pushing the tongue of my father inside with one hand and jerking his breast with another hand.
My father expired as soon as the injection was pushed. Dr. Mannan then left the place."
P. W. 5 :‑Dr. Mannan accompanied by Yusuf, brother‑in law of Sattar came there. Yusuf had a bag in his hand. Dr. Mannan (identified) brought out a syringe from his bag and pushed an injection in the left hand of Mannan Dobash. As soon as the injection was pushed, the tongue of Mannan protruded out. Dr. Mannan then left.
P. W. 6 : Then Dr. Mannan came there accompanied by Yusuf the latter had a bag in his hand. Dr. Mannan then pushed an injection in the left hand of Mannan. Immediately after that the tongue of Mannan protruded out, Dr. Mannan then pushed his tongue inside with one hand and massaged his chest with another hand. Mannan expired then. Dr. Mannan then came out. One Daroga, two constables, Dr. Mannan Mokhles".
P. W. 7 :‑Dr. Mannan accompanied by Yusuf (brother‑in- law of Sattar) came there and Yusuf carried the Doctor's bag in his hand. Doctor Mannan brought out a syringe already filled up from the bag and pushed an injection on the left hand of Mannan Saheb. As soon as the injection was pushed, the tongue of Mr. Mannan came out. Dr. Mannan then left.
Then Dr. Mannan, Abdul Momin, Majid, Mokhlesur Rahman, two police constables and one Daroga came and went up stairs".
P. W. 10:-- "I looked towards south and found Dr. Mannan and Yusuf coming from the house of Anglo‑Pakistani wife of Sattar. Yusuf had the bag of Dr. Mannan in his hand. Yusuf is a brother‑in‑law of Sattar. I also found Mokhlesur Rahman standing behind the house of the Anglo‑Pakistani wife of Sattar (identified the accused on the dock). In the meantime my sister reached that verandah. Immediately after Dr. Mannan came with Yusuf. He pushed one injection to the hand of Mannan. Injection was brought out of the bag."
6. As soon as the injection was given the tongue of Mannan Dobash protruded out and then Dr. Mannan tried to push it back inside, as it will appear from the evidence.
7. At that time Mokhles was seen standing behind the house of the Anglo‑Pakistani wife of Sattar.
The hind part of the house of the Anglo Pakistani wife is visible from the front side of the house of Majid (vide the evidence of P. Ws. 2 and 3). It may be mentioned here that the suspicion of the police fell upon Mokhles fairly early. P. W. 13 has stated:
"On 11‑3‑61 1 wanted to record the statement of Mokblesur Rahman Serang but he could not be found. I also wanted to arrest him since 11‑3‑61. Mokhlesur Rahman surrendered in Court."
8. Sattar immediately left the place in the black car and went to Kotwali police station and gave information which was recorded in the G. D. entry Exh. 2. This information was aimed at creating a defence in the case, as stated before.
9. Mannan Dobash expired immediately after the injection was given and this is proved by the evidence of P. Ws. 2, 3, 5, 6, and 7.
10. Soon after the incident one Daroga and two constables arrived there and Mokhlesur Rahman also came. Mokhles, Dr. Mannan and the Daroga were found closeted in one of the rooms of the first floor of Majid's building where Majid also was present. They whispered together (vide P. Ws. 2, 3, 6, 7, and 10). P. W. 2 stated : ,
"The accused Mokhles, Dr. Mannan, police officer, Chand Mea and Momin went upstairs."
P. W. 3:----Then two constables and one Daroga came and took their stand in the yard of Majid Mia. . . . . . Then Mokhlesur Rahman, Dr. Mannan, Chand Mia, Momin came there. They took the Daroga and the constables upstairs."
P. W. 6:---‑"Dr. Mannan then came out. One Daroga, two constables, Dr. Mannan, Mokhles, Jane Alam and Chand Mia came and went upstairs".
P. W. 7:----Then Dr. Mannan, Abdul Mamin, Majid, Mokhlesur Rahman, two police constables and one Daroga came and went upstairs".
In cross‑examination: "No other outsider accompanied the party who went to the upstairs of Majid after the occurrence."
P. W. 10 :---"Mokhlesur Rahman, ' Dr: Mannan, two constables, Chand Mia, Momin and that police officer went to the first floor of Majid Mia . . . . . Majid Sahab was in the upstairs from before. I went upstairs to ask Majid what to do with the dead body. There are two rooms in the upstairs. In one room, Dr. Mannan, Mokhlesur Rahman and S. I. Azizul Huq were talking amongst themselves in whispering sound. In another room Majid, two constables, Chand Mia and Momin were found, Momin did not allow me to go to that room when I wanted to go to Majid . . . ."
11. After removal of the dead body to the house of Mannan Dobash, another Daroga, the O. C. came. The bearded Daroga, Dr. Mannan Yusuf and others then went to the house of Sattar (Vide P. W. 3).
"The bearded Daroga, O. C. Dr. Mannan Mokhlesur Rahman and Sattar then went to the house of Sattar Mia."
12. After a few minutes Dr. Mannan and the bearded Daroga again came to the house of Mannan Dobash and took Nur Jahan's signature on a blank paper misrepresenting that it was required for post‑mortem examination. This fact has been testified to by P. Ws. 2 and 3, as mentioned before.
13. The dead body was then hurriedly taken away to the hospital for post‑mortem examination by the Daroga, Sattar, Dr. Mannan Mokhles all of whom accompanied the dead body (vide P. Ws. 2 and 3).
P. W. 2 :‑"Dr. Mannan, Mokhlesur Rahman, Sattar and the Daroga who came with Dr. Mannan took away the dead body".
P. W. 3:----"My mother signed it in a state of senselessness.
They then lifted my father in one car. In that car Mannan, Yusuf, Dr. Mannan and two police men also went. In another black car Mokhlesur Rahman, Sattar Mia, deceased, Daroga and O. C. went. Both the cars left our house simultaneously."
It is rather unusual for these men to accompany the dead body at dead of night, unless they had some idea up their sleeve, namely, that of influencing the medical authorities.
Circumstances such as those above leave little doubt that the trio were acting in concert in pursuance of the conspiracy to murder which was ultimately translated into action by appellants Mannan and Sattar.
14. The active part taken by the police in supporting the defence and attempting to spoil the prosecution case, is further indicated by the fact that all the previous papers of the prosecu tion case are said to have been burnt within the thana mal‑khana itself, which is a very unusual circumstance and may have been the result of motive and design.
According to the I. O. the witnesses did not make certain statements to him. Some of such omissions, as we have mentioned before, may be construed as contradictions. There is, of course, authority to indicate that in cases of such contradictions, the evidence of the police officer should be accepted in preference to the evidence of the witnesses, affirming that they did make such statement. But in the present case the position is very peculiar. Here the police officers concerned, from the very inception, worked against the prosecution and in favour of the defence, so much so that the poor helpless lady Nur Jahan, wife of the deceased, was compelled by circumstances to submit a petition to the S. P. alleging callousness of the police in the matter of investigation. The S. P. had to come down to the house of Nur Jahan and ask the I. O. to investigate the case properly, which implies that the investigation held hitherto was not quite satisfactory. The relevant evidence of P. W. 2 is as under:
P. W. 2 : "I do not remember how many days before the visit of the S. P. to our house, I filed the petition to him. Being ordered by the S. P. the O. C. then recorded my statement and the statements of other witnesses."
P. W. 13 himself stated that on 6‑6‑61 Syed Mannan Bux, S. P. went to the spot with him to supervise the investigation on that day. He examined Nur Jahan, Laila, Amena Khatun, Mofzal, Taskir, Ali Ahmed, of course, he is silent as to his having done so on the orders of the S. P. He has stated that he took over charge of the investigation from S. I. Azizul Huq and this was apparently at the instance of the S. P.
We have reasons to think that the I. O. could not change his attitude towards the case and. stuck to the original line taken by the police. In these circumstances reliance can hardly be place on the evidence of the I. O. that the witnesses omitted to make the statements in question. We feel inclined to accept the evidence of the witnesses concerned that they did make the statements to the T. O.
Some adverse comments have been made by Mr. Abdu, Salam Khan regarding the non‑examination of Mannan Dobash'; full brother Majid Dobash and mother Begumjan and Nur Jahan's father Sultan Ahmed and brother Kobbad. It is in evidence that Majid had been siding with Sattar and Mokhles. Hence neither he nor his mother Begumjan, who has been living with Majid could be expected to come and depose against Sattar and Mokhles. P. W. 2 has stated "The charge‑sheet witness Majid is my own Bhesur. On the date of occurrence he was on my husband's side. Now, he is siding with the accused. Begumjan is now under the thumb of Majid . . . . . . . . . . . Abdul Karim is under the control of the accused Sattar . . . . . . . . . . Md. Safi, Kobbad Ahmed and my father Sultan Ahmed will not depose in this case out of fear. They are very much afraid of the accused".
It may be mentioned here that this witness also stated that for the first time on the 6th June, 1961 she gave her statement before the S. P.
The evidence on record suggests that Mokhles and Sattar are not only very rich but also very powerful men particularly Sattar. It is not difficult to think that Sattar is a source of terror to the people and people would be naturally afraid to depose against him. This may also be one of the reasons for non‑examination of Sultan Ahmed and Kobbad also. Furthermore, had they really been brought to the witness box, defence would all the same have criticised and said that no reliance should be placed on their testimony as they were close relations of Nur Jahan, wife of the deceased. There is thus little scope for any adverse presumption against the prosecution arising from the non‑examination of such witnesses.
It has been urged on behalf of the appellants that the eye witnesses were all interested and deserved no credit. Of course P. W. 2 is wife of Mannan Dobash P. W. 3 is his daughter while P. W. 10 Taskir is brother of P. W. 2 Nur Jahan. They are all natural probable and competent witnesses. Taskir also used to live with the deceased. P. W. 5 Amena was their Aya and P. W. 6 Ali Ahmed is son of Amena while P. W. 7 Mofzaf was a motor mechanic under the deceased and used to work in the motor garage in front of the deceased's house. There is nothing to indicate that these witnesses are any longer in the employ of Nur Jahan and as such there is nothing to question their disinterestedness.
P. W. 3 Laila Begum was 12 years and 6 months at the time of her deposition at the trial and comes in the category of child witness. The learned trial Judge was conscious about it and observed in his judgment that from her demeanour it appears that she gave a true statement of facts, that she stood the test of cross‑examination very well and that it cannot be said that parrot like she reproduced something she was tutored to say by Sultan Ahmed or any other person. This appears at page 41 of the judgment.
The learned Additional Sessions Judge also made observations about all the witnesses of occurrence, namely, P. Ws. 2, 3, 5, 6, 7 and 10 saying that from the straightforward manner in which they answered the question and from their demeanour as a whole he was satisfied that they were truthful witnesses. This also appears at page 41 (top) of his judgment.
Now the question is whether appellant Mannan in administering the injection, administered poison into the system of the deceased and whether the death was caused by such poisoning. P. W. t Dr. M. A. Kader held post‑mortem examina tion on the dead body on 23‑2‑61 at 11‑30 a.m. He found some whitish stain at the right nasal orifice and the scrotum highly swollen. P. W. 1 Doctor's finding was:
"1. Some whitish stain found at the right nasal orifice.
2. Scrotum was highly swollen. No other external findings could be detected".
He also stated that the scrotum may be swollen due to Hydrocele or due to injury. He said no opinion could be given without chemical examination of the viscera, such as stomach and its contents right kidney and part of the liver with full bladder, which was preserved by him. He found the stomach healthy and it contained about 8 oz. of semi‑digested material. He agreed that froth may come out due to asphyxia, and that sometime poisonous injection only affects the brain and causes asphyxia.
The statement of this doctor seems to be inconsistent and contradictory. Although he stated in examination in chief that scrotum may be swollen due to Hydrocele or due to injury. In his cross‑examination he went all out to support the defence by stating that the scrotum of the deceased was swollen due to Hydrocele and for no other cause and that the swolling could not be caused by kick because he found a clear Hydrocele fluid in the viginal cavity and he said that in case of kick the fluid would not have been clear.
It may be noted here that there is no evidence whatsoever that the deceased was suffering from Hydrocele. On the contrary, the clear evidence of P. W. 10 is to the following effect.
"He had a perfect health. He was a very good foot ball player. He got many cups and shields. They are still in his house. He was the Secretary of the Firinghee Bazar foot ball club and a player of the Firinghee Bazar foot ball team. He was also a Tennis player. He played Tennis at the Catholic tennis lawn two months before the date of occurrence."
In the light of this evidence and clear denial on the part of Nur Jahan that her husband had Hydrocele, it is difficult to accept that the Doctor found Hydrocele fluid and that swolling of his scrotum was due to Hydrocele. This doctor contradicted himself and said in cross‑examination that in case of all poisonings, the viscera which was sent by him for chemical examination was sufficient for detection of poison by chemical analysis, although he had earlier stated that some poisonous injection only affects the brain and causes asphyxia in which case froth may come out at the time of death.
"Froth may come out due to asphyxia. Sometime poisonous injection will only affect the brain and cause asphyxia. Froth may come out at the time of death.
The part played by this doctor in this tragic drama, does not seem to be above board. When he failed to discover the cause of death it was his clear duty also to send the brain and membrane for chemical examination but he had not done so. Of course the report of the chemical examiner shows that no poison was detected in the viscera that was sent. This does not rule out the possibility of a poisonous injection inasmuch as poison might have been detected if brain and membrane were also chemically analysed. There are however certain symptoms from which the conclusion that poison was injected, may be drawn. The very protrusion of the tongue as soon as the injection was pushed and the froth coming‑through‑the nostril are significant enough. This symptom should be considered along with other conduct of Doctor Mannan and his association with the other appellants and the part played by him both before and after the death. The fact that he came uncalled for with a filled up syringe and pushed the injection hurriedly, is another very unseemly symptom of his guilt. The clear evidence is that he came with a filled up syringe and as soon as he pushed the injection, the tongue shot out which he rather cruelly pushed in and thereafter gave a jerk on the chest. Pushing the tongue in itself seems to be an incriminating circumstance. It is true that the Doctor stated that he did not find any mark or trace of any injection on the dead body but at the same time the Doctor stated that if any injection was pushed before the death of the man, it could not always be detected in the person of the victim at the time of the post‑mortem examination.
In the circumstances, as above, we have little doubt that the injection pushed by Doctor Mannan had its deadly effect upon the deceased.
The contention of the appellants is that death might be due to shock at the receiving of the kick at the scrotum or abdomen or due to heart failure. The defence elicited from the Doctor P. W. r that in case of chronic heart disease and blood pressure a person may drop down dead in a moment of excitement. But there is no evidence that Mannan Dobash ever suffered from any heart disease or blood pressure. On the other hand, the evidence as indicated, shows that he was a good sportsman and played Tennis only two months before the occurrence. The suggestion on the part of the defence that one Sudhir Doctor accompanied him when he visited Ajmere because he was a heart disease patient, was emphatically denied. There is no substance in the contention that he died of shock due to heart disease and blood pressure. The Doctor's evidence is : "Heart was not enlarged".
A question has been raised about the time of the occurrence according to the prosecution it took place at about 6 p. m. just about the Iftar time. According to the accused Sattar's statement in the G. D. entry Exh. 2 also it took place at about 6 p. m. 8 oz. of semi‑digested materials having been found by the doctor in the stomach of the deceased, some amount of confusion has been created as to the exact time of the murderous attack.
The evidence of P. W. 2 Nur Jahan is that her husband used to keep his fast regularly and on this fateful day also he was fasting and that when he went to intervene in the quarrel between Sattar and Majid he left instruction to her to prepare the Iftar. Question arises : If he was fasting, how could so much food be found inside the stomach at the time of occurrence P. W. 10 Taskir Ahmed, however, has stated that Mannan would sometime during Ramzan take food outside as he dared not break fast at day time at home. The fact that he asked his wife to prepare Iftari, is not so very inconsistent with his conduct having regard to the fact that at home he always made the impression that he was fasting regularly. Moreover, about 6 p. m. was also time of Iftari on that date. It is possible that the incident took place immediately after he had broken his fast. May be, that he had taken the Iftari only by that time. It is "semi‑digested materials" that was found and not "semi‑digested rice". In any event this contention on the point as to the time of occurrence does not, in the circumstances, impress us very much.
According to Mr. Khan one of the defence theories is that the deceased was pushed and hit by Sattar's car. Even if this theory is accepted, it is very strange to find that the Doctor does not discover any kind of injury or any external sign of injury on the deceased. If the deceased was pushed by car there would have been at least some marks however insignificant on his person.
The absence of any external injury reflects very greatly upon the conduct of the Doctor P. W. 1, inasmuch as whether it was a case of kick by Sattar or hitting by his car, he would have found injury of some kind other. But he has said that he found no injury whatsoever on the dead body.
None of the witnesses has any animus against Doctor Mannan. On the other hand, according to the defence, he is a family physician gad as such a friend of the family. Unless there was some truth in the allegation of the prosecution it could not be normally accepted that the witnesses having no animus, would depose against Doctor Mannan.
In the circumstances, as above, we feel inclined to hold that the charges of section 120‑B as against the trio and of section 302/34 in addition as against appellants Sattar and Mannan have been driven home beyond doubt.
Before closing, we should refer to a faint contention on the part of Mr. Khan, namely, that at any rate, there could be no conviction of the appellants Sattar and Doctor Mannan under section 302/34 of the Pakistan Penal Code. His argument is that Doctor Mannan having come later and he not being present at the first push and kick itself, he could not be said to have been acting in furtherance of the common intention to kill Mannan Dobash.
All that the section requires is that the acts by the several persons should be in furtherance of the common intention. Simply because appellant Doctor Mannan played his part a few minutes later, it could not be said that his act was not one in furtherance of the common intention.
The criminal act of murder had not been completed until, as on the evidence of the P. Ws. 2, 3, 5, 6 and 7, and injection was pushed by Doctor Mannan.
There was unity of criminal behaviour as between the two and it resulted in something for which an individual could be punished if it were all done by himself alone.
In that view of the matter we hold that the two appellants Doctor Mannan and Abdus Sattar have been rightly convicted under section 302/34 of the Pakistan Penal Code. They are at the same time guilty along with the other appellant, namely, Mokblesur Rahman (found guilty only under section 120‑B) under section 120‑B of the Pakistan Penal Code for the illegal agreement itself. For the offence under section 120‑A, the association or coming together or forming of the common intention itself without more, is sufficient. It is not necessary to prove that two or more persons came together and actually agreed on terms to have the common design and to pursue it by common means and thus carry it into execution. The illegal agreement could be inferred from the acts and conduct alone.
We, therefore, also confirm the conviction of the three appellants for conspiracy to murder under section 120B of the Pakistan Penal Code and also the conviction of appellants Abdus Sattar Dobash and Dr. Abdul Mannan under section 302/34, P. P. C.
We are very much dissatisfied with the conduct of the investigating police and of Doctor M. A. Kadir, P. W. 1 and this should attract the attention of the authorities concerned.
In the result, we dismiss the appeals and uphold the convictions and sentences of the appellants. Appellant Mokhlesur Rahman who is on bail will now surrender to his bail and serve out the remainder of the sentence imposed upon him.
K. B. A. Appeals dismissed.
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