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Criminal Appeal No. 442 of 1959, decided on 2nd October 1959.
Common intention Proof‑Offence being likely consequence of common intention-- Not sufficient.
Common intention is sometimes proved by direct evidence, such as confessions or an approver's testimony, but in most cases its determination depends upon inference from acts done and motives possessed, judged in the light of the habits and notions of the class of people concerned. Where for instance 3 or 4 armed relatives burst upon a habitation, kill or injure 2 or 3 persons, and carry off a girl, the subject of a dispute between the two sides, the only reasonble inference is that these acts are unified by a common intention possessed by each, namely to use force even to the extent of murder in carrying off the girl. But, where, though the girl was the subject of bitter dispute and though both the accused came armed, yet no attempt seemed to have been made to carry off the girl apart from an oral demand of her, one of the two accused who took no part in actually killing the deceased, could not be said with certainty to have come armed with the common intention of killing the deceased. In order to attract section 34 of the Penal Code, 1860 it is not sufficient to prove that an offence is a likely consequence of a common intention, the prosecution must show that the offence committed was covered by the common intention.
Azizullah K. Shaikh for Appellant.
Murtaza Hussain for Respondent.
Dates of hearing : 25th and 29th September 1959.
The two appellants Khalil and Habib together with their cousin Arzu were tried for offences under section 302/34, P. P. C. and 19‑E, Arms Act. Arzu was acquitted and the two appellants were convicted by the learned Sessions Judge, Jacobabad who agreed with all the four assessors that appellant Khalil was guilty and the opinion of three of them that Habib was guilty. He sentenced Khalil to death and Habib to transportation for life. In addition he sentenced both the appellants to 12 months' R. 1. under section 19‑E, Arms Act. The case is also before us by way of joint appeal and for confirmation of the death sentence imposed upon Khalil.
There is no dispute regarding the relationship of Khalil and very little regarding the main outline of matrimonial disputes. P. W. Jiwan is sister of P. W. Loung and P. W. Shahali and deceased Ropah was her husband. They lived together while the appellants lived about a mile distant. Some years previously Loung had been declared as karo ' by Khalil with his wife Sono, and the matter was settled, one of the terms being that a girl should be given to Khalil. As a result, 3 years before the incident which took place on 16‑12‑1958, Suhagaa the daughter of Ropah deceased was given in marriage to Khalil. Suhagan left his house some months before the incident and section 107 proceedings were started in which it was alleged that Khalil had declared Suhagan as Karl with some third person. The complaint in the case Exh. 6 dated 15‑6‑1958 states that Suhagan denied being Kari. The story, however, given in the Sessions Court was that she had run away from her husband's house because he maltreated her.
The prosecution story is that at about bipari time (about 2 p.m.) Khalil and Habib armed with a gun and pistol together with Arzu armed with a hatchet came to the habitation of Loung where eye‑witnesses Jiwan, Shahali, Loung and Suhagan were sitting together in the deceased's otak. Habib told Ropah deceased to return Suhagan and when he said he would not do so, except upon an order of Government or a nekmard, Khalil shot him with his gun. Suhagan states that Habib told Khalil to shoot, but Jiwan, Shahali and Loung did not state that Habib made any such request or instigated the shooting in any way, and we accordingly rejected her evidence on this point. After the shooting the appellants went away without apparently trying to secure Suhagan, who ran away to the house of some Alam at a short distance.
Ropah's injuries, according to the medical evidence, consisted of 80 pellet wounds each 1/6' in diameter which had penetrated the liver and the intestines. 26 pellets were recovered from the liver and the abdomen. No blood was found upon the ground at the alleged scene of offence as according to the prosecution evidence Ropah put his turban round his injury and the witnesses Loung, and Shahali tied it fast and put him on a cot.
Loung reached the police out‑post at Gehalpur, a mile distant, at 4‑30 p.m., and after being given a 'parchi' by the Head Constable at that out‑post lodged his first information at Kashmore Police Station 8 miles away at 8 p.m. This first information gives the story that the girl had been detained by her father and that section 107 proceedings had started. It stated that when he was returning with his bullocks after giving them water he saw the 3 appellants come to the court‑yard where Ropah, Suhagan, Jiwan and Shahali were present. Habib demanded the hand of Mst. Suhagan stating that otherwise he would murder Ropah. Ropah refused. Suhagan escaped to the house of Alam Marhal and then Khalil shot Ropah. The appellants threatened them by a show of their weapons and made good their escape.
The Sub‑Inspector of Police reached the scene late in the night and found the Head Constable of the outpost already there. He recorded the statements of Jiwan and Suhagan. On the morning of the 17th December he made a mashirnama of the scene of offence and prepared an inquest report. On the 18th he recorded the statement of Shahali and arrested the appellants. Appellant Khalil stated that he had concealed the gun in the hedge of his house and accordingly took the Sub‑Inspector and mashirs Imambux (P. W. 4) and Ghulam Mustafa to his house and there produced it from the hedge where it was hidden. It was an unlicenced gun. He searched the houses of Habib and Arzu but he found nothing incriminating. The statements of Shah Ali, Suhagan and Jiwan were recorded under section 164, Cr. P. C. on the 19th December and on the 31st December he challaned the appellants.
The statement of Khalil was that Suhagan had been given as compensation in the matter of Loung's declaration as Karo with his wife. The parents of Suhagan had taken her away and had filed cases against him and his relatives in order to coerce them to give up Suhagan. He stated that he had never maltreated her. He denied going to the scene of offence or producing the gun. He stated that mashir Imambux was his enemy and similarly Habib alleged that he had been falsely involved owing to enmity between Khalil and the prosecution witnesses and Imambux.
Imambux is a Kosh as are the parties living about a mile from the scene of offence. Causes of enmity are alleged to be that one Lalbux, a maternal uncle of the appellants had charged Imambux with taking away his wife, but Imambux though he admits acquittal in such a case, denies relationship of Lalbux with the appellants. The second cause of enmity was that Imambux's cousin filed a case of theft against Khalil and one Faizu.
Mr. Azizullah has argued that because no blood was found on the scene of offence the truth of the matter.is that the deceased could not have been shot at the place or in the circumstances alleged by the prosecution. He must, therefore, have been shot elsewhere and after being found must have been taken to the scene of offence and a false story concocted in order to involve the appellants with whom Ropah was on admittedly bad terms. We have already pointed out the evidence and we consider that the smallness of each injury and the tying of the turban (which was found bloodstained) sufficiently explain the absence of blood on the ground.
The question, however, arises regarding Habib whether he had a common intention of shooting Ropah. The learned Sessions Judge has held at lines 158 and 191 that both the appellants came armed with the common intention of killing Ropah if he did not return Sohagan. He has pointed out the bitter dispute over Sohagan, the demand for her return by Habib, and the " sensitive " feelings of these Balochis in these matters.
Common intention is sometimes proved by direct evidence, such as confessions or an approver's testimony, but in most cases its determination depends upon inference from acts done and motives possessed, judged in the light of the habits and notions of the class of people concerned. Where for instance 3 or 4 armed relatives burst upon a habitation, kill or injure 2 or 3 persons, and carry off a girl, the subject of a dispute between the two sides, the only reasonable inference is that these acts are unified by a common intention possessed by each, namely to use , force even to the extent of murder in carrying off the girl. But in the present case, though the girl was the subject of bitter dispute, and though both the appellants came armed, yet no attempt seems to have been made to carry off the girl apart from the oral demand. True she ran away but not far, and nothing is said why she could not have been pursued and captured. The only acts of Habib are that he demanded surrender of the girl and accompanied, armed himself, Khalil also armed. It appears to us that we cannot rule out as beyond the bounds of reasonable; probability the inference that Habib had agreed that they should both go to demand the girl and that they should go armed in order to prevent an attack upon themselves, and that the shooting by Khalil occurred not as part of a common intention, but as an independent act arising from his loss of temper. We do not say that this is the right inference, but merely that it is a reasonable probable inference. It is to be remembered that in order to attract section 34 it is not sufficient to prove that an offence is a likely consequence of a common intention ; the prosecution must show that the offence committed was covered by the common intention. We see no reason to reject the evidence of the eye witnesses that Habib was armed with a pistol.
As regards Khalil the case against him is corroborated to a slight extent by the fact that he produced an unlicensed gun, which might have been used in the offence. Pace Mr. Azizullah, we cannot see how a ballistic expert could have shown that the gun produced was or was not the gun used in the offence ; no bullet or spent cartridge was recovered from the body or the scene.
The presence of the witnesses was natural ; there is no doubt of their ability to identify the appellants, their acquaintance being common ground and the time being broad daylight. We do not believe that they have falsely charged the appellants, because unknown assailants had committed the crime. The motives for enmity of Imambux, if true, are insufficient to make his evidence suspect. We can see no reason why the witnesses should not be believed by us, as they were by the learned Sessions Judge and assessors.
Mr. Azizullah pressed for reduction of the sentence on the ground that Khalil had a legitimate grievance against Ropah who had kept his wife away, and that this was the second time that his matrimonial affairs had been disturbed by Ropah's side. Whether in fact the girl had been declared Kari as stated in the section 107 complaint, or had been maltreated or had been taken away without any cause we are not in a position to say ; but even assuming that she had been taken away without any cause by her relatives the fact remains that the appellant was the aggressor and had gone armed to the scene and took the law in his own hands by shooting Ropah. These cases are common and we think that they should not be encouraged by leniency in sentence.
We, therefore, partly accept the appeal of Habib, and set aside his conviction under section 302/34, P. P. C. and, the sentence of transportation for life ; we maintain his conviction and sentence under section 19‑E, Arms Act.
We dismiss the appeal of Khalil son of Khanu, uphold his convictions under section 302, P. P. C. and section 19‑E, Arms Act and maintain the respective sentences of death and 12 months' R. I.
K. B. A./A. H.
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