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Criminal Appeal No. 428 of 1961 and Death Reference No. 10 of 1961, decided on 20th November 1962.
Criminal Procedure Code (P of 1898),
S. 237‑Accused charged with commission of substantive offence‑Can also be convicted for abetment of such offence though not so charged‑Every case to be considered on its own facts.
Jhanendra Chandra Ghatak v. The Emperor 34 C W N 198 rel.
T. H. Khan for Condemned Prisoner.
K. Hossain for the State.
This reference under section 374 of the Code of Criminal Procedure is by Mr. M. H. Rahman, Additional Sessions Judge, Mymensingh, for confirmation of the sentence of death passed on one Abed Ali under section 302/109, Pakistan Penal Code. The appeal of the condemned prisoner against his conviction and sentence has been heard together with the reference and both the references and the appeal are disposed of by this judgment.
2. The condemned prisoner was placed on trial before the learned Additional Sessions Judge to answer a charge under. section 302/ 109, Pakistan Penal Code. The trial was held with the aid of four assessors, two of whom were of the opinion that the prisoner was guilty under section 302/109, Pakistan Penal Code, while the other two opined that he should get the benefit of doubt. The learned Judge agreed with the opinion of the assessors who found the prisoner guilty and con victed and sentenced him, as above.
3. The case for the prosecution is that the deceased is the step‑brother of the condemned prisoner. Their father died leaving them and the mother of the deceased as his heirs. The prisoner, since the death of his father, has all along been in possession of the paternal properties and the deceased did not get possession of any portion of the same. He used to live since the death of his father along with his mother with his maternal uncle. P. W. 1 Asmat Ali Fakir. The mother is dead. The deceased claimed his share in the paternal properties and the condemned prisoner promised to settle the question amicably. The deceased, not being satisfied with this assurance, wanted that the condemned prisoner should give an undertaking before the jumma‑ghar' after jumma' prayer. The prisoner did not turn up. On 16‑3‑61 the prisoner came to the house of P, W. 1, Asmat Ah Fakir sometime after Iftar' and said that he had been to Kishoreganj and would go back home the same night. He requested them to allow the deceased to accompany him as he was afraid to go alone during the night. The maternal‑uncle and the maternal‑mother (sic.) were reluctant at first to allow the deceased to go with the condemned prisoner but ultimately yielded on account of the persistent request of the prisoner. It is said that sometime after the prisoner and the deceased left the house of the maternal uncle some of the P. Ws. heard a minor boy to shout "I am being killed. 1 am being killed. I am being killed. They rushed towards the direction of the shouts and found near the east of the Dattagram bridge over the Bagjuri Khal the dead body of the deceased and the prisoner lying by his side apparently in a senseless condition. The dead body and the prisoner were romoved on wooden planks to the house of P. W. 7 Osman Ali, P. W. 1 Asmat Ali Fakir was informed and he along with his mother came. The condemned prisoner remained in the same condition which, according to the prosecution case, was a mere pretence. The next morning Asmat Ali left for the thana to lodge information but met the Officer‑in‑Charge on his way. The Officer‑in‑Charge, on being informed of the occurrence, came to the house of Osman and after curiously observing the bodies of the deceased and the condemned prisoner left for the place of occurrence in the company of some of the P. Ws. There he seized the ghamcha' (Material Exh. 1) and comb (Material Exh. 2) and came back to the house of Osman. After observing the prisoner, it struck him that he was not really senseless but pretending to he so. He therefore pourer] some water into his nostrils and mouth when the prisoner suddenly started running. He was however overtaken and arrested.
4. The defence of the condemned prisoner is that there was no dispute between him and the deceased over properties. He was asked by the deceased to purchase some new clothes for him for the ensuing Eid which he did and took the deceased from his maternal uncle's house on the night of the occurrence so that he could celebrate the Eid in the house of the prisoner. When they came near the Dattagram bridge some persons came and suddenly fell upon him and put a cloth on his nose and mouth which was smelling. At that time, the deceased cried out "I am being killed." He however became senseless and did not know what happened afterwards. He regained consciousness in the house of Osman where he disclosed that they had been attacked by dacoits and he was made senseless. According to the condemned prisoner, he was robbed of Rs. 72 and the new clothes that he had. He never tried to escape on regaining consciousness.
5. The conviction in this case is based on circumstantial evidence and the question that naturally falls for determination is Whether the prosecution have succeeded in establishing all the facts alleged, and if so, whether the facts are incapable of ,any explanation other than the guilt of the accused.
6. The murder of the deceased is not disputed in the case. The dead body of the deceased was identified to be that of Shah Nawaz by P. W. 1 Asmat Ali Fakir before the Investigating Officer and P. W. 4 Constable Abdul Jalil. The latter escorted the dead body when it was taken to the Medical Officer, S. K. Hospital. The dead body was identified before P. W. 3 Dr. N. Islam Choudhury who held the post‑mortem examination by P. W. 4 Constable Abdul Jalil. P. W. 3 Dr. N. Islam Choudhury, found that the death of the deceased was due to asphyxia caused by homicidal strangulation combined with mechanical pressure on the chest wall resulting in the breakage of sternum and the right 2nd rib. He also opined that some legature was used for causing strangulation which may be a gamcha'.
7. The condemned prisoner has been represented before us by Mr. T. Hossain Khan while Mr. K. Hossain has appeared for the State.
8. The hearing of this case has taken a peculiar turn. Mr. T. Hossain Khan has attacked the conviction on merit and has dealt at length on the unconvincing nature of the evidence. He has claimed confidently that, in view of the evidence, the prisoner should be given the benefit of doubt. Mr. K. Hossain has dealt with the evidence and has made serious attempts to support the conviction. He has, however, at the outset, very fairly brought to our notice certain irregularities at the trial and has left the matter to be considered by us after giving such assistance as he could. We very much appreciate the fairness of the learned Advocate for the State.
9. Mr. T. Hossain Khan, on the other hand, has thought it is unnecessary to go into these questions in view of the weakness of the prosecution case.
10. After hearing the learned Advocate at length, we have decided not to enter into the merits of this case, in view of the. order that we propose to make.
11. The charge framed by the committing Court was to the following effect:
"That you on or about the 16‑3‑61 corresponding to the 2nd day of Chaitra 1367 B. S. at Dattagram P. S. Iswarganj did commit murder by intentionally causing the death of Shah Nawaz, and thereby committed an offence punishable under section 302 of the Pakistan Penal Code and within the cogni zance of the Court of Session.
And I hereby direct that you be tried by the said Court on the said charge."
12. At the instance of the Assistant Public Prosecutor, this charge was cancelled and the following new charge was framed by the Additional Sessions Judge:
"That some unknown person or persons on or about the 15th March 1961, corresponding to the 2nd day of Chaitra' 1367 B. S. at Dattagram and Dattaratia villages, P. S. Iswarganj committed the offence of murder of Shah Nawaz and that you at the above‑mentioned place and time abetted the said unknown person or persons in the commission of the said offence or murder of Shah Nawaz which was committed in consequence of your abetment and thereby committed an offence punishable under section 30 L/ 109 of the Indian Penal Code and within the cognizance of the Court of Sessions. And I hereby direct that you be tried by the said Court on the said charge.
13. The learned Judge has found the prisoner guilty of murder but has convicted him of abetment of murder. This will appear from the following passage from his judgment:
"From the evidence, circumstances and probabilities discussed above I find that it has been proved beyond reasonable doubts that accused Abed Ali took out Shah Nawaz deceitfully after evening on 16‑3‑61 from the house of P. W. I Asmat Ali Fakir in order to murder Shah Nawaz out of previous grudge and that after murdering Shah Nawaz by strangulation, he pretended to lie looking like senseless by the side of Shah Nawaz so that people may not make him responsible for the murder. The inculpating facts as discussed above have been proved beyond reasonable doubts by direct evidence and they are incapable of explanation on any reasonable theory except that of the guilt of the accused. No eye‑witness saw when accused Abed Ali murdered Shaw Nawaz. So charge under section 302 read with section 109, P. P. C. was framed against him. There is no doubt that accused Abed Ali is responsible for the brutal and premeditated murder of Shah Nawaz. Therefore, accused Abed Ali is guilty under section 302 read with section 109, P. P. C. "
14. The question that arises is: Whether, in a case where a prisoner charged with having abetted some unknown persons in the commission of murder, can be convicted for the substantive offence The authorities on this point are not uniform,
15. In the case of Kher Singh v. Emperor (A I R 1920 Lah. 15) the Lahore High Court took the view that when two persons were charged with murder and it could not be established that one of them was present at the scene of murder, his conviction for abetment was not bad in law in view of the provisions of section 237, Criminal Procedure Code, as both the charges could have been framed against him. A contrary view was taken in the case of Emperor v. Baghya Naghya (A I R 1924 Born. 432). In that case a person charged with murder was convicted of abetment of murder. The con viction was set aside by the High Court and a re‑trial ordered as it was thought that if the Legislature wanted to permit such a thing it would have made express provision for the same, as was done in the case of attempt to commit an offence in section 238, Criminal Procedure Code.
16. In the case of Jhanendra Chandra Ghotak v. The Emperor (34 C W N 198) it has been held that a person charged only with a substantive offence can be convicted of abetment if the facts proved justify such a conviction and be such as were sufficient to give the accused notice of allegations of abetment, in spite of the absence of a specific charge. We are in respectful agreement with decision in this case. In our view, while it is true that it cannot be laid down as a matter of universal rule that in no case can there be a conviction for abetment when the accused is charged with the substantive offence or vice versa, it cannot also be held as an inflexible rule that in every case where a charge is framed for abetment the accused can be convicted of the substantive offence or vice versa simply because both the charges could be framed against him. Each case will depend upon its facts and the relevant question that was to be answered is whether the evidence adduced in support of the charge gave sufficient notice of all the facts which would constitute the offence for which he is convicted. If the answer is in the negative, the conviction must be set aside, but if how ever the answer is in the affirmative, the conviction can be maintained.
17. On an anxious consideration of the facts of this case and the charge framed, we have not been able to conclude that the prisoner had notice of all the facts constituting the sub stantive offence of murder for which he has been found guilty. We are strengthened in this view after looking into the lengthy examination of the prisoner under section 342, Cr. P. C. The examination has been printed on four pages of the paper‑book and according to us while we have noticed that in most cases defective examinations under this section suffer from brevity, the present one has gone to the other extreme and must have confused the prisoner in his defence. To illustrate the point, we may quote some portions of a question. At page 42, the following was put to the prisoner:
"At a little distance to the east side of southern portion of this bridge on the southern‑bank of Bagjuri "khal", at the time of 'Esha' prayer you with your premeditated intention murdered Shah Nawaz fastening some thing with his neck and strangulating him".
But at page 43 we find at the concluding portion of the question it was said:
"On the night of the occurrence whoever might have caused the murder of Shah Nawaz but you brought Shah Nawaz in the aforesaid manner and abetted in his having been murdered. You have heard the evidence that this murder had been caused as a result of your own active help. Have you got anything to say in this regard "
The examination betrays a vacillating mind and this finds further expression in the judgment when the prisoner after being found guilty of murder is convicted for abetment thereof, the only reason given being that there was no eye‑witness. There was one other thing which we think should be taken notice of in connection with the examination of the prisoner. The prosecution wanted to show that the deceased was, done to death by strangulation with the 'gamcha' (Exh. 1) which was with the prisoner at the time of his visit to the house of P. W. 1 on the fateful evening. We do not however find that the prisoner was asked anything about this. In view of all these facts, we think it is neither necessary nor proper to enter into a discussion of the evidence and accordingly refrain from expressing any opinion on the same at this stage. We think that in this case an order of re‑trial is the proper order to pass.
18. We, therefore, reject the reference, allow the appeal of the prisoner, set aside his conviction and sentence and direct that he be tried by a different Judge either on a straight charge under section 302 or on charges under section 302 as well as 302/109 of the Pakistan Penal Code as the Judge thinks proper.
Pending the re‑trial, the accused will remain in custody.
SIKANDAR ALI, J
.----‑I agree.
S. B./A. H.
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