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Criminal Appeal No. 107 of 1964, decided on 27th June 1967.
, S. 302/34-Murder-First Information Report made without undue delay supporting prosecution on main points-Prosecution witnesses belonging to same locality and only two out of twenty having relationship with deceased No enmity of witnesses with accused shown-Allegation, of police being responsible for concoction of false case, held, cannot throw discredit upon evidence of so many witnesses of occurrence.
, Ss. 147, 148, 149; 302/34 & 326 - Common intention - Murder - Unlawful assembly-Two accused armed with daggers, five with bangs and three empty handed-All accused waylaying deceased-One of dagger-carrying accused attacking deceased with dagger, other dagger-carrying accused catching hold of deceased when he tried to rub, and there after all chasing deceased and encircling him-Both dagger-carrying accused stabbing deceased and one other striking deceased's hand with bang-All, held, liable to conviction under S. 326/149 but dagger-carrying accused further held liable to conviction under Ss. 302/34, P. P. C.
Ahmed All v The State 12 D L R 365 ref.
, Ss. 149 & 302-Common intention-Unlawful assembly-Murder-Some accused carrying daggers others either empty handed or carrying bangs-Unarmed accused, held, cannot be fixed with common intention without any overt act on their part-No evidence that accused other than those actually committing murder helped in any way in commission of murder-Common intention, in circumstances; held, confined to accused actually committing murder.
, Ss. 236 & 237- Charge-Slight variation fn facts established from those alleged in charge-Conviction on facts established-No question of prejudice arises-Conviction not bad in law.
P. C. Bose with Nasiruddin Chowdhury for Appellants,
Naimuddin Ahmed for the State,
--The ten appellants before us, namely, Rafique alias Rafiqul Alam Khan, Monir alias Azad Alam Khan, Badsha Mia alias Sharif Alam Khan, Naair alias Nazir Mia Khan, Jabid alias Jabid Ali, Haris alias Haris Ali, Ayub alias Ayub Ali, Tobarak alias Tobarak Ali, 'Shafique Alam Khan alias Shafique, and Mongai alias Mangul Ali, have all been convicted under section 302/34 of the Pakistan Pakistan Penal Code and sentenced to transportation for life. Appellants Nos. 9 and 10 have in addition been convicted under section 148 of the Pakistan Penal Code and sentenced to rigorous imprisonment for two years each on that count. Appel lants Nos. I to 8 have in addition been convicted under section 147 of the Pakistan Penal Code and sentences to rigorous imprisonment for one year each by the learned Additional Sessions Judge, Sylhet.
All the ten appellants as above were charged under section 302/34 of the Penal Code on the allegations that on or about 15th of Sraban 1370 B. S., corresponding to 1st of August 1963 at Osmanpur under Kotwalli Police Station in the district of Sylhet, in furtherance of the common intention of all of them, committed the offence of murder by intentionally and knowingly causing the death of Huru Miab alias Akhtar Ali Chowdhury.
All of them were in addition charged under section 148 of the Penal Code on the allegation that all of them formed an unlawful assembly with the common object to murder Huru Miah and in prosecution of this common object they used force and violence and thus committed the offence of rioting being armed with deadly weapons such as daggers and Bangs (split bamboo used for carrying loads of paddy, rice, etc.) In the Committing Court however appellants Shafique and Mongai were charged for an offence under section 302 of the Penal Code and the remaining eight were charged for an offence under section 302/149 and all of them were charged under section 148 of the Penal Code.
At the trial there was a change in the charge as above at the instance of the Public Prosecutor.
The prosecution story is that deceased Huru Miah had differences regarding Wakf properties with appellants Badsha. Shafique, Rafique, Monir and Nazir. Huru Miah also recently before the occurrence, deposed against accused Mongai and Haris in a criminal case which led to Mongai and Haris being in Hajat and they were only bailed out some 15 or 16 days before the present occurrence. The appellant Haris is son of appellant Jabid. Appellants Ayub and Tobarak who are father and son, had also grudge against the deceased Huru Miah as a criminal case at the instance of Haru Miah was pending against them at the time of the occurrence and Haru Miah was a witness in that case. On the fateful day, namely, 1st of August 1963, deceased Huru Miah went in the morning to the house of P. W. 6 Osmanallah lying about half a mile off from the house of Huru Miah. Huru Miah was returning at about 7-30 a.m., that morning from P. W. 6's house and the latter was also coming by the same road close to Huru Miah, At a spot about 600 to 700 cubits off from the house of P. W. 6 Osmanullah while Huru Miah was passing by the road, all the ten appellants came by the north. Appellants Haris, Jabid, Monir, Ayub and Tobarak had Banga in their bands; appellant Shafique attacked Huru Miah with a dagger on the road. Huru Miah tried to run away but appellant Rafique caught hold of him. Huru Miah pushed off Rafique and ran towards the west. Thereafter all the ten appellants chased Huru Miah. After running to a distance of 30/40 cubits Huru Miah fell down within a paddy field. Appellant Nazir ordered to kill Huru Miah and appellants Shafique and Mongai stabbed Huru Miah with daggers and appellant Monir struck on the left hand of Huru Miah with a Bang. The other appellants encircled Huru Mian when the assault was going on. On the cries of P. W. 6 and P. W. 3, P. W. 7, P. W. 9 and P. W. 8, P. W. 14 and Mohammad brother of Showkat hastened to the place of occurrence and saw the assaults on Huru Miah.
On the advent of these witnesses the appellants ran away towards the north. Injured Huru Miah was taken to his house where he stated the occurrence and named his assailants in presence of persons including P. Ws. 15 and 17 and also to P. W. 1 Ajmal Ali who went to the house of Huru Miah some time after hearing the news of the occurrence from P. W. 14 Showkat who came to Sylhet and informed P. W. 1. Huru Miah was shifted by P. W. i from his house to the Civil Hospital and Huru Miah expired there shortly after his arrival. Thereafter the informant P. W. 3 Aftabur Rahman who is brother-in-law of the deeeased.lodged the First Information Report at 2-15 P. M., at Sylhet Kotwalli Police Station. Police held investigation, went to the place of occurrence, seized Alamats and after completing investigation, charge sheeted the accused persons for offences under sections 148, 149 and 302 of the Penal Code and after preliminary enquiry by a competent Magistrate, all the ten appellants were committed to the Court of Sessions for taking their trial.
The common defence of all the appellants was that the occurrence did not take place at the time, place and manner as alleged by the prosecution; that Huru Miah was a man of des perate type having several enemies as he used to extort money from others and that his enemies had killed him in different manner at a different time and place.
The case of appellants Shafique, Rafique, Badaha, Monir and Nazir was that they had differences with P. W. 1 Ajmal Ali and others regarding Wakf properties and that for the purpose of removing pleader Shaiful Alam from the Mutwalliship of the Wakf properties, these five appellants who are relations of Saiful Alam pleader had been falsely implicated.
Further case of the accused appellants was that son of Huru Miah named Mohammad had illicit connection with his aunt wife of one Geda Miah and that Huru Miah used to support his son in this matter and because of it, relations of Geda Miah were aggrieved against Huru Miah and that before the occurrence this Mohammad son of Huru Miah enticed away his said aunt from the house of Geda Miah and when Huru. Miah went out at night in order to search out his son, some unknown persons had killed Huru Miah.
Further defence case was that the occurrence took place at night and none saw the occurrence and that P. W. 1 Ajmal Ali hatched up a conspiracy in consultation with the Public Prosecutor and that the witnesses who deposed in the case were under the influence of Ajmal Ali P. W. 1.
It was suggested from the side of appellants Haris, Mongai and Jabid that they had boundary disputes with P. W. 1 Ajmal Ali, Saiful Alam, Badsha Miah and others and they have also got a case with P. W. 18 Majidullah.
On behalf of the appellants Tobarak and Ayub it was said that the case of Saiful Alam against them was still pending and that they have been falsely implicated.
Further defence case was that the story of statements by Huru Miah regarding his assaults and the names of the ten appellants to P. W. 1 and also to P. Ws.. 15 and 17 were all, false.
Four Assessors aided the learned Additional Sessions Judge at the trial.
The prosecution examined 18. P. Ws., and tendered two P. Ws. No witness was examined on behalf of the defence. The defence, however, exhibited petition Exh. A which was filed in the Committing Court by P. W. 3 Aftabur Rahman opposing the bail of the appellants and the defence also filed Exh. B, B (1) and B(2) showing signatures of Huru Miah on a Vokalatnama executed in favour of pleader Saiful Alam on 21-11-1960, and on Jamat nama in another case against Huru Miah and the signature of P. W. 3 on the said Jamatnama. They also filed G. D. entry following talks on phone by P. W. 1 Ajmal Ali and G. D. entry regarding information of expiry of Huru Miah in the Civil Hospital at 1-40 P. M., marked Exhs. C and C (1).
On those facts all the four Assessors were of opinion that except appellants Nos. 9 and 10, namely, Shafique and Mongai, all the other appellants were not guilty of any offence. In the case of appellant No. 9 Shafique-one Assessor found him guilty under section 304 Part II, another Assessor found him guilty under section 302 of the Penal Code and two Assessors found him not guilty on this head. In the case of appellant No. 10 Mongai, one Assessor found him guilty under section 304 Part 11, one found him guilty under section 324 of the Penal Code; that two others found him not guilty on this head. On the charge under section 148 of the Penal Code against these two and all others, the Assessors unanimously found them not guilty.
The learned Additional Sessions Judge, however, in. those circumstances convicted the ten appellants as above.
Mr. P. C. Bose, learned Advocate appearing for the ten appellants has taken us through every nook and corner of the rather voluminous evidence in the case resulting from different sets of cross-examinations in the trial Court. Mr. Bose has urged grounds Nos. 2, 15, 5 and 6 of the memorandum which are as under:
Ground No. 2. -"For that the learned Judge wrongly applied section 34, Pakistan Penal Code against the appellants and so far 8 appellants were concerned their conviction for murder by operation of section 34, Pakistan Penal Code was wholly unwarranted."
Ground No. I5.-"For that the ingredients of secution 34, Pakistan Penal Code had not been proved and there was no evidence of pre-arranged plan or concert among the appellants."
Ground No. 5.-"For that the phone message recorded in G. D. Entry, Exh. C, goes to show that the names of the assailants were not known to P. W. 1 till then and the learned Judge has not given due weight to Exh. C and he has tried to avoid Exh. C by technical consideration by finding that this document was not admissible in evidence."
Ground No. 6.-- "For that the prosecution failed to prove sufficient motive for the alleged offience of murder". He has also urged that P. W. I Ajmal Ali has been pulling the wires from behind and is responsible for the false case against his clients.
It is necessary to set out the evidence in brief before we come to consider the grounds urged.
P. Ws., 3, 6, 7, 8, 9 and 14 stated that they saw the occurrence at about 7 or 7-30 a.m., on the relevant date, namely, Ist of August and that they saw all the ten appellants attacking and chasing Huru Miah and. that when the latter fell down within the paddy land, appellants Shafique and Mongai stabbed Huru Miah with daggers and appellant Monir struck Huru Miah with a Bang within the paddy land. They also stated that the injured Huru Mtah was carried home thereafter. P. W. 10 hailing from about 150 cubits from the place of occurrence stated that when on hearing cries he came to the spot, he saw all the ten appellants running away towards the north by the Sylhet Moglabazar road. This witness also claimed to have carried Huru Miah home along with other P. Ws. P. W. 1.1 Entaj Ali son of P. W. 6 Osmanullah also came running on hearing a row and saw all the ten appellants running away together from the West. P. W. 18 Majidullah who was ploughing a land in the field about 500 to 60J cubits off from the place occurrence also came running to the place of occurrence and saw all the appellants running away by the road. P. W. 3 Aftabur Rahman stated that Huru Miah and P. W. 6 were coming from south towards north by Sylhet Monglabazar road and that this witness was to the north of this road and that this road runs north to south and he saw that Shafique and Mongai had struck Hura Mian with daggers; that Monir beat him by a Bang and that Rafique; Badsha, Jabid, Ayub, Haris, Tobarak and Nazir had stood encircling the deceased Huru Miah. This witness further stated that when P. W. 1 reached from Sylhet, Huru Miah named his assailants to him and also named all the ten accused saying that they had encircled him. P: Ws. 6, 7 and 14 stated that Huru Miah named his assailants to P. Ws. IS and 17 at his house and also said that the other seven accused encircled him. These P. Ws., also stated that Huru Miah named his assailants and the other seven accused Ajmal Ali P.W. 1., P. Ws. 10 and 11 have also spoken to the effect that Huru Miah after being taken home stated to them that Shafique and Mongai had struck him with daggers and Monir had struck him with Bang and the other seven accused had encircled him. P. W. 1 himself also stated that on arrival from Sylhet, Huru Miah told him that Shafique and Mongai had stabbed him with daggers and Monir struck on his left hand with Bang and that the others had encircled him. P. W. I further stated that Huru Miah named all the ten accused to him although the witness gave the ten names only in instalments. On the first day he mentioned the names of seven and on the second day he mentioned the name of the thrice others. P. Ws. 15 and 17 also stated that Huru Miah told them that Shafique and Mongai had stabbed him with daggers and Monir had struck his left hand with Bang and that appellants Rafique, Nazir, Badsha, Ayub, Tobarak, Harish and Jabid had encircled him at the time of assault.
Mr. Naimuddin Ahmad appearing for the State has prepared a chart which was very much helpful to us.
P. W. I brought Huru Miab to town by a Baby Taxi and the injured Huru Miah was admitted into the hospital at 1 P. M., and he died within half an hour thereafter. On the expiry of Huru Miab, P. W. 1 Ajmal Ali asked P. W. 3 to go to the thana and to lodge an Ejahar and accordingly P. W. 3 lodged the Ejahar Exh. 2 at 2-15 P. M., which was recorded by P. W. 5 Ashuk Barua A: S. I. This A: S. I., held inquest on the dead body of Hur Miah and after inquest sent the dead body to the morgue for post-mortem examination.
P. W. 12 the Medical Officer of Civil Hospital, Sylhet held post-mortem examination on the dead body of Huru Miah at 4 p.m., of the same date, namely, 1-8-1943. The doctor found the following injuries on the person of Huru Miah.
"1. One incised wound with clean edges of stabbing character 2 ' x " x 2 placed transversely on right side of the neck at its middle.
2. One incised wound with clean edges 1 " x " penetrating into left thoraic cavity placed on left side of back at about its middle below the scapula and nearer the middle line.
3. One incised wound with clean edges I J x J" x 1' on left side of buttock at its upper part.
4. One incised wound with clean edges 2" x J" x 1" on right palm in between right thumb and the index finger."
P. W. 20 is the Investigation Officer in the case who visited the place of occurrence on 2-8-1963, prepared a sketch map, the index of the place of occurrence marked Exhs.3 and 3(a). He stated that the spot shown to him by the informant was on the west of Sylhet Moglabazar road at a distance of 35/40 cubits and that the spot of the occurrence is the paddy land with standing paddy wherein the police officer found marks of violence and the paddy plants damaged and he also found disturbed sunken foot prints on the spot. There was heavy shower of rain in the locality at or about the time of occurrence. The I/O., however, found some blood on the side of land "A" as shown-in the sketch map and he also seized this blood under seizure list Exh. 4. He also seized one bamboo Bang with the stains of blood, which was produced to the L/O. by P. W. 11 Entaj Ali. P. W. 11 Entaj Ali stated that while the accused persons were going away from the place of occurrence, appellant Monir was behind of all and P. W.11 took this blood-stained Bang from the hand of Monir. This witness P. W. 11 also stated that there were marks of blood on the Bang which was seized by the L/O. under a seizure list Exh. 4 (a).
It may be mentioned here that in the F: I. R., the time, place and manner of occurrence have found mention there. There is also specific mention of those who actually injured Huru Miah and also mention of the dying statements of Huru Miah to P. Ws. Sunu Miah, Monir and others. The F. I. R. thus supports the prosecution case on all material points. It also appears having regard to the short time that passed between the occurrence and A the lodging of the F. 1. R., when the aggrieved party were busy in attending to the dying man, that there was little chance oft concoction and fabrication.
Appellants Shafique, Rafique Badsha, Monir and Nazir are near relations of Huru Miah. Huru Miab, Showkat and Aftabur Rahman also live in the same homestead or side by side. Appellant Badhsha is full younger brother of Saiful Alam Khan. Appellant Shafique, Rafique and Monir are sons of elder Mother of Saiful Alam and appellant Nazir is Memato brother of Saiful Alam pleader. They all live in the same homestead and appellants Badsba, Rafique, Shafique and Monir are also bene ficiaries of the Wakf estate of which pleader Saiful Alam is the Mutwalli.
The witnesses as produced in the case are all of the same locality and nothing serious could be shown against any of the eye-witnesses of the occurrence. All the P. Ws. excepting P. W. 3 and P. W. 14 have no relationship with the deceased. No clear enmity of these witnesses as against the accused persons also could be shown. P. Ws. 6, 7, 8, 9, 15, 17, 11, 18 and 10 have no connec tion with P. W. 1. P. W. 1 living as he does, in Sylhet town has little command over the P. Ws., of the locality as against pleader Saiful Alam and as against his other brothers. The suggestion that P. W. 6 was related to P. W. 1 fell through nor could any relationship or connection be shown of P. W. I Ajmal Ali or of P. Ws. Aftabur Rahman and Showkat or of deceased Huru Miah with P. W. 8 Chand Ali, P. W. 7 Yadullah, P: W. 9 Abdur Rouf, P. W. 15 Sunawar, P. W. 17 Monir Mia and P. W. 18 Majidullah.
A reference to the G. D. entry Exh C based upon phone message by P. W. 1 is here called for. This G. D. entry indicates that the assailants were not known and the entry was marked exhibit for the prosecution in the committing Court: But the Q. D. entry not being according to the information sent by P.W, 1
Ajmal Ali was not put in evidence by the Public Prosecutor at the trial. The prosecution examined P. W. 16 Mukhlesur Rahman the O/C. who stated in his examination-in-chief that on I-8-1963, at 9-55 A. M., in the morning he got a phone message from P. W. 1 and he recorded the same in, the G. D. entry under entry No. 14 dated 1-8-1963, and he deputed S. I. S. K. Ghosh and two constables to Nakhai for necessary action. P. W. t stated that P. W. 14 Sawkat Ali Choudhury came to his Basha and told him (sic) "(Father has been staffed by Shafique and others; there is doubt whether you will get him when you go ") On getting this information P. W. I tried to contact the Superintendent of Police and failing in that he informed the O/C. on phone. P. W. t stated in Court that on the phone he said that Shafique and others had injured Huru Miah very seriously.
The contents of the G. D. having shown that the assailants were unknown, it was contended that the real position was that the assailants were not known and that later the case was built up at the instance of P. W. 1. The Public Prosecutor considering that the prosecution case will be prejudiced if the G. D. entry Exh. C is put into evidence, examined the O/C. who recorded the G. D. entry. P. W. 16 who recorded the G. D. Exh. C did not contradict P. W. 1 nor did the defence elicit from P. W. 16 as to what P. W. 16 heard from P. W. 1 over the phone. The defence not having elicited from P. W. 16 as to what he heard from P. W. 1 Ajmal Ali over telephone the G. D. entry Exh. C does not seem to help the defence case in any way. Showkat who came and informed P. W. 1 was at that time in a very purturbed state of mind to give all the details and that is why he simply stated " (sic) ", and according to the evidence of P. W 1 in Court be mentioned in the phone that " (sic) " stabbed. It is also possible that at that stage P. W. 1 was not in a position to mention the names.
Now taking Mr. Bose' s last ground first, there is nothing in the evidence as above that Ajmal Ali P. W. 1 had any influence over the witnesses of the locality; he being himself away in Sylhet town. The F. I. R. was not lodged after any undue delay con sidering the distance and other factors like hospitalisation and death of the deceased. P. Ws. 3 and 4 though distantly related to P. W. 1 Ajmal Ali, the main witnesses in the case, namely, P. Ws. 6 Osmanullah, 7 Yadullah, 8 Chand Ali, 9 Abdur Rouf, 15 Sonawar, 17 Monir Miah, 11 Entaj Ali, 18 Majidullah and 10 Altaf Hossain have no relationship with P. W. 1 Ajmal Ali. After all P. W. 1 is not himself an eye-witness and the part played by him cannot throw discredit upon the evidence in Court of so many witnesses of the occurrence.
Mr. Bose has criticised the evidence of P. W. 1 on the ground that P. W. 1 stated on the first day of his deposition that he did not remember three names out of the ten names stated by Huru but later on he was recalled and he stated that he remembered that Huru Miah named Jahid, Ayub and Tobarak also along with other seven accused.
Though this is indeed strange, we cannot hold that this con duct or slip on the part of P. W. 1 can affect the prosecution story vitally as all the other P. Ws., named all the ten accused and also stated that Huru Miah mentioned all the ten name.
The prosecution has also brought sufficient evidence of motive. Only very recently Huru Miah deposed against appellants Harish, Mongai and they were only bailed out 15/ l6 days before the occurrence. A criminal case at the instance of Huru Miah was also pending against appellants Ayub and Tobarak at the time of occurrence.
Now coming to the contentions of Mr. Bose on the basis of grounds Nos. 2 and 15 which relate to common intention of all the appellants, it appears, as stated before, that in the Committing Court appellants Shifique and Mongai were charged for an offence under section 302 of the Penal Code, and the remaining eight accused persons were charged for an offence under section 302/ 149 of the Penal Code and all the ten accused persons were charged under section 148 of the Penal Code and the learned Judge while convicting the appellants under section 302/34 of the Penal Code observed that in the facts and circumstances of the case all the ten accused might also be found guilty for the murder of Huru Miah under the provisions of section 302/l49 of the Penal Code without causing any least possible prejudice to any accused.
The learned Judge, however, framed a straight charge under section 302/34 of the Penal Code against all for committing the offence of murder in furtherance of the common intention of all. He also framed a charge under section 148 of the Penal code against all for being members of unlawful assembly, which in pro secution of the common object of such assembly, namely, in murdering. Huru Miah, committed the offence of rioting being armed with deadly weapons such as daggers and Bangs.
It is rather strange that the Sessions Judge charged all the 10 appellants with the common intention of murder and at the same time with the common object of murder.
It may be incidentally observed here that there. is a high degree of doubt as to whether a Bang is a deadly, instrument at all. It appears that the learned Judge did not frame any charge under section 147 of the Penal Code at all and charged all the appellants under section 148 of the Penal Code; as above, but convicted all t6 accused other than Shafique and Mongai under section 147 of the Penal Code while convicting them at the same time under section 302/34 of the Penal Code. The reason per haps is that he did not regard Bang which was held by Monir, Jabid, Haris, Ayub and Tobarak as deadly weapon and because appellants Rafique, Badsha and Nazir were empty handed.
The position thus created seems to be irreconcilable.
The learned Additional Sessions-Judge observed:--
"The accused Shafique attacked Huru Miah, with dagger and while Huru Miah ran towards west all these ten accused chased Huru Miah up to the paddy land of assault and the accused Shafique and Mongai stabbed Huru. Miah with daggers and Monir struck Huru Miah with a Bang and the other accused encircled Huru Miab. Huru Miah was not stabbed and struck in any -free fight between two parties, nor this occurrence took place in any quarrel over any land dispute between two parties. So it appears to me that accused persons made a preparation and conspiracy before hand, they got themselves armed with two deadly weapons daggers and several Bangs usually for carrying paddy or other loads and three of the accused were also apparently empty banded and in this fashion all these ten accused persons attacked Huru Miah on the way and being attacked with dagger when Huru Miah ran towards west, all these accused persons chased him and then the two accused having daggers in their hands, namely, Shafique and Mongai stabbed Huru Miah and accused Monir struck Huru Miah with a Bang. These facts and the circumstances go to show that this is a premeditated and pre-arranged murder."
Examining the facts for ourselves, we find that .there is nothing in the evidence to indicate that all the accused were acting in furtherance of the common intention of murder. There is nothing in the evidence to suggest any conspiracy or preparation before hand so much so that there is not even any evidence that the accused knew that Huru Miah would be returning and on the road at that hour. It is true that common intention may grow on the spot but those unarmed at any rate cannot be fixed with common intention without any overt act on their part. The injuries as found on the person of the deceased do not show any injury other than the incised injuries which could only be inflicted by sharp cutting weapons as carried been Shafique and Mongai. The Bang injury said to have beer inflicted by appellant Monir could not be located by the Medica officer. On the other hand, the Bang which was seized by the 1/O. bore blood-stains. The prosecution story being that Monir' s blow only gave a fracture; the blood-stains on the Bang remained unexplained. Moreover, P. W. 11 stated that he snatched away the blood-stained Bang from Monir while the evidence of the other witnesses also of the doctor does not show that Monir caused any bleeding injury. No other injury except the four incised injuries as inflicted by Shafique and Mongai were found on the person of the deceased. The evidence of P. W. 14 Showkat is that all the ten appellants started together from the house of Shafique along the Sylhet Moglabazar road towards the south and when Huru Miah came in front of them, Shafique attacked the witness's father Huru Miah with dagger and all the other accused encircled his father. When Huru Miah wanted to run away, Rafique caught hold of him and Huru Miah pushed off Rafique and ran towards the west and then all the accused chased Huru Miah. After going 30/40 cubits Huru Miah stumbled down; then appellants Shafique and Mongai struck Huru Miah with daggers and appellant Monir struck on the left band of Huru Miah with Bang and that appellants Haris, Ayub and Tobarak encircled Huru Miah that except the 3 actual attackers all the other 7 appellants chased and encircled Huru Miah. The evidence pf other witnesses like P. W. 3 and P. W. 6 also was that appellants other than these 3 chased and encircled only. The evidence is uniform, on the point of the 7 appellants other than Shafique and Mongai and Monir encircling Huru Miah when Shafique and Mongai and Monir were busy with their attack. Mr. Bose has urged that the learned Judge was wrong in saying that all the appellants chased and encircled as some of the P. Ws., also ran into the paddy field. Whether the right word is 'Chased' or not, it appears that all the appellants started together from the house of Shafique and followed Shafique to the paddy field where the fatal injuries were inflicted on the deceased. They also ran together while escaping as testified to by P. Ws. 10 Altaf Hossain, 11 Entaj Ali and 18 Majidullah. Huru Miah also mentioned all the accused as taking part in the tragic drama. These circumstances, however, though indicative of the formation of an unlawful assembly with the common object to assault or to murder, do not show that all the ten appellants acted together in furtherance of the common intention of murder. It is only appellants Shafique and Mongai who- carried daggers from before and acted jointly together in the commission of the act of murder that can be held guilty under section :04/34, P. P. C. After Rafique who caught Huru Miah on the road was pushed off and then Huru Miah stumbled in the paddy field while escaping, a common intention grew on the spot between Shafique and Mongai to finish Huru Miah, which they did. Both of then bad sufficient motive for the same and they were waiting for an opportunity and that opportunity came when Huru Miah stumbled and fell in the paddy field.
The injury said to have been inflicted by Monir by Bang could not be located. As to the order of killing given by .Nazir the evidence is rather discrepant. Huru Miah himself has not said so. P. W. R did not state to the L/O. that appellant Nazir gave any order while P. W. 9 stated to the 1./O. that Nazir struck Huru Miah with a Bang. So far as Rafique goes he only caught Huru Miah on the road when the initial attack was made by Shafique. There is no evidence that he helped in any way, in the very commission of the murder itself in the paddy field.
We find in those circumstances that the common intention of murder was confined to appellants Shafique and Mongai only.
The learned Sessions Judge convicted Shafique and Mongai under section 148 and others under section 147, P. P. C. We are in agreement with the learned Sessions Judge on this point.
According to the learned Sessions Judge common object was to kill Huru Miah but 5 of the appellants were armed only with Bang and 3 were empty handed.
In those circumstances, it. is difficult to hold that they had actually the common object to murder.
There is however no escape for the other appellants from they clutches of the other principle of constructive liability as fixed by section 149 of the Pakistan Penal Code. The common object of all of them -was at any rate, to cause grievous hurt to Huru Miah inas much as at least two members of the assembly, namely, Shafique and Mongai had armed themselves with daggers and in furtherance of the common object Shafique and Mongai actually murdered Huru Miah and the other appellants had the knowledge that such murder might take place. These 8 others chased and also encircled Huru Miab at the time of the infliction of the fatal injuries in the paddy field.
Therefore the other eight accused are liable to be convicted under section 326/149, P. P. C.
In the result, we hold all the 10 appellants guilty under section 326/149, of the Pakistan Penal Code and at the same time appellants Shafique and Mongai guilty under section 303/34, of the Pakistan Penal Code.
The learned Sessions- Judge has convicted the other 8 appellants under section 302/34 of the Pakistan Penal Code which in the circumstances of the case we convert to conviction under, section 326/149 of the Pakistan Penal Code. Question of prejudice does not arise. Reliance has been placed on the decision in Ahmad Ali v. The State (1) where the sections 304 (1)/34 of the Pakistan Penal Code when the charge against them was under section 302, read with section 149, P. P. C.
Held: "Both sections 34 and 149, P. P. C., deal with construc tive liability and it is to be considered whether the accused who have been convicted under sections 304(1)/34, P. P. C., have been prejudiced in the absence of a charge under that section.
A slight variation in the facts established from the facts alleged in the charge and a conviction for an offence on the facts established would not render it by itself bad in law in view of the provisions of section 236, read along with the illustrations as well as section 237, of the Code of Criminal Procedure."
Coming to the question of sentence, we do not impose any separate sentence on Shafique and Mongai for the offence under section 326/ 149 of the Pakistan Penal Code and confirm the conviction and sentence of transportation for life as passed upon them by the learned Sessions Judge under section 302/34 of the Pakistan Penal Code. So far as the other 8 appellants go, we convict them under section 326/149 of the Pakistan Penal Code and sentence each one of them to a period of 4 years R. 1, each.
The conviction and sentence as passed under sections 148 and 147 of the Pakistan Penal Code by the learned Sessions Judge are confirmed and will run concurrently in each case. The appeal is disposed of accordingly.
ABDUL HAKIM, J.-1 agree.
S. A. H. Appeal dismissed.
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