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Criminal Appeal No. 3‑D of 1959, decided on 21st May 1959.

(On appeal from the judgment and order of the High Court of West Pakistan. Dacca dated the 22nd December 1958, in Appeal No. 422 of 1957, read with Criminal Appeal No. 423 of 195 ).

S. 120‑B‑Conspiracy to commit murder‑Evidence as to conspiracy by chance witnesses and eaves droppers‑Not relied upon.

Hamidul Hague Chowdhury, Senior Advocate Supreme Court (A. K. M. Nurul Islam, Advocate Supreme Court with him) instructed by A. M. Chowdhury, Attorney for Appellant.

B. A. Siddiki, Advocate‑General East Pakistan (S. Abdul Ghani, Advocate Supreme Court with him) instructed by Siddik Ahmad Chowdhury, Attorney for the State.

Date of hearing : 16th May 1959.

This is an appeal by special leave in a criminal matter.

The appellant Fakku Mia, has been sentenced to transporta tion for life under section 120‑B read with section 302 of the Pakistan Penal Code for having conspired with some other persons to commit the murder of Hashim Ali. There was a bitter rivalry between the appellant and the deceased over Union Board elections, the last election having brought victory to the latter and defeat to the former. The deceased was brutally murdered in his own house in Padri Sibpur on the night of the January 1954. The murderers also committed dacoity in the house. For this dacoity accompanied with murder some persons were tried but they were all acquitted. The appellant with some others was separately tried on the charge of conspiracy to murder and convicted. The evidence against the appellant has been examined in great detail in the High Court where most of the evidence produced by the prosecution has been rejected and the only evidence accepted is that of the witnesses who state that on several occasions the deceased had said that he apprehended danger to his life from the appellant, and of two other witnesses which relates to the alleged conspiracy. As the persons who are alleged to have committed the murder have all been acquitted it must be held that the murder is not proved to have been committed in pursuance of the conspiracy of which evidence was given by the prosecution. It is in evidence that when Hashem Ali was being attacked or was about to be attacked some words were exchanged between him and one of the culprits. This conversation has been described by the High Court in the following passage :‑

"When dacoits were beating Hashem Ali he said, I have given you all the money I had. Forgive me now'. At that time a dacoit said, have we come only for money. Then Hashem Ali said, I will no longer contest the election. I will give up my membership. Forgive me please'."

This statement of the deceased is admissible both as res gestae and as a dying declaration and great significance has rightly been attached to it by the High Court. But unless the evidence of Abdul Mannan and Hashim Sikdar who depose to a conspiracy be believed, the dying declaration is of no significance. Both these witnesses are chance witnesses and eaves droppers and neither of them gave information of what he heard either to the deceased or to any public authority for six months. When murderer, discuss a criminal plan in a house, they don't shout the conspiracy to outsiders to make them eaves droppers. On an anxious consideration of the evidence of these witnesses we find ourselves unable to accept it, and the judgment of the High Court contains no reference to the obvious criticism to which this evidence was liable. The result of this finding is that the appellant's conviction becomes unsustainable. We accept the appeal, set aside the conviction and sentence and acquit the appellant.

Appeal accepted.

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