Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeals Nos. 280, 306 & 217 of 1962/Confirmation Case No. 53 of 1962, decided on 1 st April 1963.
All persons charged under section must have consented to commission of crime committed Knowledge not same as intention‑Mere presence of accused on spot cannot justify their being imputed with necessary intention under section 34.
Hassanally A. Rahman Hazratji and Manazaruddin for Appellant,
Rustom Kaikobad for Respondent.
Dates of hearing : 31st January, 1963 ; 1st and 5th February 1963.
This judgment will dispose of the case of the confirmation of the death sentence passed on appellant Saadat Mian, and also the criminal appeal by appellants Anwar Ahmed and Sultan. The three appellants were convicted by the learned Additional Sessions Judge, Karachi, under section 302 read with section 34, P. P. Code. Appellant Saadat Mian was sentenced to death by hanging, and Anwar Ahmed and Sultan were each sentenced to transportation for life. Anwar Ahmed and Sultan have appealed from jail, and we have in furtherance of these appeals heard Mr. Hassanally Abdul Rehman for appellant Saadat Mian, Mr. Manazaruddin Ahmed for appel lant Anwar and Mr. Hazrat ji for appellant Sultan. The incident which took place on the 21st of October 1961 arose as a result of the attentions of Wazir Hyder, described as a good looking young boy of about 15 years, who sold pan and bidi from a tray at a bus stand near Jutland Lines. Wazir Hyder was also a confirmed catamite, and appears to have made a side income from submitting himself to carnal intercourse with various people at various times. Appellant Saadat lived in the same locality as Wazir Hyder. Sultan worked at a workshop a few paces from Wazir Hyder's house. Sultan was a mill hand. Saadat, Sultan and Anwar occasionally sat near the bus stand where Wazir sold pan and biri. The deceased Shahzada lived about 3C0 paces from Wazir's house and behind Jacob Lines. He was also a visitor to the pan‑biri stand of Wazir Hyder.
2. Wazir Hyder was originally friendly with Saadat Mian and submitted himself to him several times. Thereafter on acquaintance with Shahzada, Wazir Hyder switched over his attentions to him. Shahzada asked Wazir not to have any more connections with Saadat Mian, and Wazir complied. In conse quence Saadat Mian and Shahzada had quarrelled with each other, and stopped any further communication, and a week before the incident they both had a fight.
3. On the night of the 21st October 1961, at about 9‑15 p.m. Wazir Hyder was on his way towards Burns Garden intending to attend a Qawali. He passed by the country liquor shop opposite the Empress Market. Shahzada and Dulara were standing in front of the liquor shop, eating something. Dulara owns a milk shop in Jutland Lines and knows the appellants, the deceased and Wazir Hyder. Seeing Wazir Hyder, Dulara and Shahzada, the deceased, inquired of the latter, and persuaded him to accompany them inside the liquor shop. There they had some liquor, and a short while afterwards, Shahzada persuaded Wazir Hyder not to go for the Qawali, and instead to accompany him to his house. Accordingly, all the three came out of the liquor shop and headed for the tonga stand opposite near the Empress Market. Shahzada and Wazir Hyder hired the tonga of Hamid Beg. Dulara stood‑by for another Tonga for his home in a different direction. Hamid Beg was waiting for additional fare to start for its destination, and whilst his tonga was still parked at the stand, the three appellants suddenly emerged upon the scene. Appellant and Anwar asked Shahzada whether Wazir Hyder was being taken. Shahzada said he was taking him home. Anwar then pulled Wazir Hyder down from the tonga. Anwar and Sultan abused Shahzada, and also pulled him down from the tonga. Anwar then held Shahzada by his collar, and the appellant Sultan by his legs, whereupon Saadat Mian whipped out a knife and stabbed Shahzada in his abdomen and several parts of his body. Shahzada was a lame person, and in consequence of being struck, he fell down. The attention of one Makwa, who was watering a tonga horse, a short distance away, was attracted to the scene. Cries were raised. The three appellants, Dulara and Wazir Hyder made themselves scarce from the scene owing to the commotion that arose, and the cries raised by Hamid Beg, the tongawala.
Hamid Beg attempted to follow the escaping appellants, but it is alleged that he was threatened by Saadat Mian with his knife. Mawka alias Muhammad Ahmed informed constable Aziz Shah on traffic duty at the crossing of Preedy Street and Mansfield, about 150 feet away from the tonga stand. The constable came to the scene and saw Shahzada lying injured, unconscious and bleeding from his injuries. His intestines were protruding. After several efforts at making inquiries from him, Shahzada revealed his name. In the meantime, constable Aziz Shah had attempted to locate the assailants without success. Thereafter constable Aziz Shah took Shahzada the injured in a motor rickshaw to the Jinnah Hospital, and handed him over to the Medical Officer on duty. Shahzada died a short while after reaching the hospital, and revealed no name, except that of repeating the name of one Moulabux on persistent inquiries. It has not been established who this Moulabux is or how he was connected with the deceased. From the hospital, constable Aziz Shah informed the S. H. O , Cantonment on the telephone, giving him a short description of what had been conveyed to him by Makwa, viz., that of Shahzada being knifed and of his assailants having run away. The report, which was recorded by A. S. I. Azadar Hussain, the Duty Officer at the Police Station at the time, stated the injuries appear to have been inflicted by a sharp‑edged weapon, that he had brought the injured to the hospital, his condition being serious and that prior to the occurrence he had seen the deceased, the boy and a third person proceeding towards the tonga stand from the direction of the liquor shop.
4. After constable Aziz Shah's message had been noted, a further message was received that Shahzada had expired. S. H. O. Fazlur Rehman had already proceeded to the Jinnah Hospital, and was there informed that Shahzada had passed away. His body was handed over to the medical officer for post‑mortem examination. Fazlur Rehman then went to the scene which was pointed out to him by constable Aziz Shah. It was noticed that the scene was well lit by electric lights. State ments of constable Aziz Shah, Makwa alias Muhammad Ahmed and others were recorded. The next morning, the statements of Wazir Hyder and Dulara recorded at the Police Station, disclosed the names of the three appellants. A. S. I. Shamshad Hussain was deputed to arrest them. Shamshad Hussain produced appel lant Anwar at about 11 a.m. that day. At about 1 p.m. appellant Saadat Mian was produced. He had some injuries on his person, and was immediately sent to the Jinnah Hospital for treatment and certificate. Thereafter, the statements of Hamid Beg, the tonga driver and others were recorded. Appellant Sultan was arrested from Tunisia Lines at the pointation of Wazir Hyder. Appellants Saadat and Anwar were remanded to judicial custody on the 23rd October and Sultan to the Central Jail on the 25th October. On the 25th October, the three appellants were put to the test of identification in the presence, and under the supervision of, Mr. Hizbaruddin, an Additional City Magistrate of Karachi, in the Central Jail. Makwa alias Muhammad Ahmed, Hamid Beg and three others, were subjected to the test. It may be mentioned here that Amanat Ali, another tonga driver, was not examined in the course of tire proceedings, nor was Nuseer Ahwad. Both Makwa and Hamid Beg, correctly picked out Saadat Mian and Anwar Ahmed. Whilst Makwa also picked out and identified appellant Sultan, Hamid Beg was unable to do so, On the 26th of October, post‑mortem notes regarding Shahzad;i and the certificate of injuries on Saadat Mian were received and the appellants were challaned on the 26th of October before the learned Additional City Magistrate, Mr. Ahmedullah, who committed them to the Court of Sessions on the 11th April 1962. The latter Court, as already indicated, has convicted them, and with these convic tions the appellants are aggrieved.
5. The case of the appellants has been a total denial of the incident, all of them contending that they knew nothing about it. They admitted, however, that they, Wazir Hyder and the deceased belonged to the same locality, and that Wazir Hyder was on terms of carnal intimacy with Shahzada, and further that they used to advise Wazir Hyder to desist from associating with the deceased. This had annoyed Wazir Hyder.
6. Saadat Mian during the committal proceedings denided that he had been arrested on the 22nd October from Drigh Road Colony, but admitted that he had been subjected to an identi fication test in the Central Jail, where he was picked out by Makwa, Hamid Beg and others, but contended that he had been previously shown to them and other witnesses. He also stated that the injuries on his person were the result of his having been beaten by the police at the Thana, and that Wazir Hyder, Hamid Beg, Dulara, Makwa and Natho were implicating him under the influence of the police. In the Sessions Court he contended that he did not have a grudge against Shahzada for having won over the affections of Wazir Hyder. Wazir Hyder and Saadat Mian lived in the same Mohalla, but Saadat Mian denied having any carnal connections with him, or of having quarrelled with Shahzada a week before the incident, on account of him. He repeated his assertion that the witnesses had picked him out at the test but had previously seen him whilst in the custody of the police and at tonga stand. The injuries on his person were inflicted by the S. H. O. after he had been arrested. He finally contended that Wazir Hyder implicated him as he had prevented him from associating with Shahzada and others of the locality, and complained to Wazir's father about it. Wazir Hyder had taken umbrage at this. Dulara implicated him as he had asked Wazir Hyder not to associate with him as Dulara also committed sodomy on Wazir Hyder. Hamid Beg and Makwa were testifying against him due to pressure of the police.
7. Anwar's defence was that he was in Korangi at the time of the incident and was arrested from his house in Jutland Lines at 6 a.m. on the morning of the 22nd October. He admitted that he had been picked out in the test held on the 25th October by witnesses, who had known him before. He also asserted that Wazir Hyder, Hamid Beg, Dulara and Natho were implicating him due to influence of the police, and in the Sessions Court further amplified his defence by stating that on the night of the incident he was with his sister in Korangi till about 1 a,m. He had gone to her house direct from his office. He worked as an electrician and knew nothing about the murder. Wazir Ryder implicated him as he belonged to the Mohalla, and at the instance of his father. He had prevented Wazir Hyder from having illticit relations with Shahzada and others. The other witnesses had been set up by the police. Those witnesses who picked him out at the test knew him before‑hand as they used to visit him very often ort business. He denied having any association with Saadat Mian or enmity or grudge against Shahzada.
8. Appellant Sultan's defence in the committal proceedings was that the identifying witnesses knew him before, and that the prosecution witnesses were implicating him due to personal enmity and influence of the police. In the committal proceedings he contended that Wazir Hyder had implicated him on account of enmity, as he used to prevent him from going astray, and he did so in his capacity as a well‑meaning neighbour. Makwa knew him before the incident as he had purchased a horse through him. He and Makwa had an argument over the brokerage of the sale. He denied finally any connection with Saadat Mian, who belonged to his locality.
9. None of the three appellants have examined any defence witnesses.
10. The learned Additional Sessions Judge framed three points for determination. They are as follows :‑
(1) Whether Shahzada was murdered
(2) Whether the accused murdered him and
(3) Whether the accused bad common intention to commit his murder.
He came to the conclusion in the affirmative on all these points, and in consequence convicted the appellants. Three Assessors sat through the trial with the learned Additional Sessions Judge, and the learned Judge agreeing with the majority decision of the Assessors, has convicted the appellants.
11. On the point whether the deceased Shahzada met a violent end on the night of the 21st October 1961, at the scene which is indicated in the sketch Exh. 5, opposite the tonga stand and almost in front of the traffic police stand at the junction of the Preedy and Sangster Street, there can be no doubt. The ocular evidence of P. Ws. Wazir Hyder, Dulara, Hamid Beg, Makwa and constable Aziz Shah, together with the testimony of the medical officer, Jinnah Hospital, Dr. Bashir Ahmed, Exh. 30, undoubtedly points to the manner in which Shahzada met his death. The post‑mortem examination revealed five incised injuries on his person of the following description
(1) Incised wound 1 " x " peritionial cavity deep in right hypo‑condrium, vertical in direction.
(2) Incised wound 2" x " x peritonial cavity deep left to mid‑line, upper abdomen, with small gut coming out of the wound, which is perforated at two points.
(3) Incised wound 3" x " x " above right collar bone outer end,
(4) Incised wound left forearm, lower part outer aspect 1"x "x " and
(5) Incised wound front right forearm 4" x " x skin deep.
12. Dr. Bashir Ahmed, the C. M. O. Exh. 30, who initially examined Shahzada has stated, besides describing the nature of the injuries on his person, that Shahzada was unconscious, that his breath smelt of alcohol. The injuries were caused by some sharp‑edged weapon like a knife, and Dr. Hassan who performed the post‑mortem examination, stated that injury No. 2 with corresponding injuries to the bowels, mysentry and aorta was sufficient in the ordinary course of nature to cause death, which was due to shock and haemorrhage as a result of a stab wound to the abdomen inflicted with a knife. There is, therefore, no doubt as to the cause of the death of the deceased Shahzada, and that it was due to the knife injuries inflicted at the time of the incident at the scene as alleged by the prosecution. '
13. The implication of the three appellants was sought to be established by the prosecution on the testimony of the five eye witnesses, P. Ws. Wazir Hyder, Exh. 11, Dulara, Exh. 12, Hamid Beg, Exh. 13, Makwa alias Muhammad Ahmed, Exh. 14, and Nathu, Exh. 16. Wazir Hyder is the boy who as we have already indicated, is responsible for the incident in the case. P. W. Dulara a milk‑seller is a common friend of the deceased, the appellants and Wazir Hyder and knew them before, and the previous intimate connections of the appellant Saadat Mian with Wazir Hyder, and of Wazir Hyder shifting his affections to Shahzada about a month before the incident. According to P. W. Dulara, the deceased and Saadat were friends before Shah zada became intimate with Wazir Hyder, and after Wazir Hyder had done so, Saadat had quarrelled with Shahzada about six or seven days before the murder. P. W. Hamid Beg is the tonga driver who usually parks his tonga at the Tonga stand near the Empress Market in Saddar, which is a busy locality at all times of the day and night. The Empress Market is one of the two largest and oldest markets in Karachi, and at a short distance from the tonga stand is the traffic post at which constable Aziz Shah was on duty. It was in P. W. Hamid Beg's tonga that the deceased Shahzida and Wazir Hyder seated themselves. Wazir Hyder having been persuaded by the deceased to accompany him to his house, instead of attending a Qawali near Burns Garden. Dulara was standing nearby, and it was whilst Hamid Beg was waiting with his tonga for additional fare, when the incident took place. Makwa works at the water trough at the tonga stand near the Empress Market and makes a living by watering tonga horses. He was watering one such horse, a short distance away from Hamid Beg's tonga, when he saw the deceased, who was lame, and Wazir Hyder, accompanied by‑ Dulara, come up to Hamid Beg's tonga, Wazir Hyder and Shahzada sat in the tonga and Dnlara stood by, and the three appellants suddenly came up and assaulted Wazir Hyder, and finally Saadat Mian stabbed Shahzada deceased. P. W. Natho is a milk‑seller. He was returning home from his brother's shop in Jacob Lines at about 10 p. m. and passed by the tonga stand near the Empress Market, where he heard some commotion and saw a person lying inured, and another standing with an open knife in his hand. That person and his companion started to run when this witness reached the scene. Those two persons were appellants Saadat Mian and Anwar. Hamid Beg tongawala and others had tried to intercept the assailants without success. A policeman came to the scene having been called there by one of the crowd. In an identification test he had picked out Saadat Mian and Anwar.
14. Besides the testimony of the three witnesses, there is the identification by the prosecution witnesses, Hamid Beg and Makwa, of the appellants in a test held on the 25th October with the result we have already referred to. In the context of the admissions by the appellants that they knew Wazir Hyder and Dulara before the test, it is apparent that these two witnesses were not put to the test and quite rightly. The appellants have made allegations of having been seen by some of the witnesses before the test, but we are not convinced after having been taken through the evidence recorded in minute detail, that there is any such basis for this allegation. We have no doubt that the identi fication test conducted by Mr. Hizbaruddin in the Central Jail on the 25th October 1961, was held with due care and caution, and that the complaint made to the learned Magistrate at the time of the test by the appellants was in an effort to set up some sort of defence at a later stage. There is no evidence that the investigating officers at any stage brought the appellants to the tonga stand or that the prosecution witnesses had an opportunity of setting the appellants at the Thana before the test which was held about three days after the incident.
15. Mr. Hassanally for appellant Saadat Mian has attacked the conviction of his client on the ground that Saadat Mian's name did not transpire until 12 hours after the incident, and that P. Ws. Wazir Hyder and Dulara were sent for owing to their previous connections with the deceased, and had falsely implicated the appellants, and this in the context of the admission of S. H. O. Fazlur Rehman that Wazir Hyder was contacted at 7 a. m. on the morning of the 22nd October, and that if Saadat Mian lives behind the quarters of Wazir Byder, why he was not arrested immediately. It was urged by Mr. Hassanally that this was not a case in which Saadat Mian had not been identified as there was no evidence of sufficient light at the scene, and as according to him, the entire incident took place swiftly during which the deceased was stabbed by someone who was neither seen nor identified by anyone of those present at the time, since it was not possible to do so. Advantage hab also been sought to be taken by this appellant and others of the names of the appellants not being mentioned in the F. I. R. which is an incorporation of the message received from constable Aziz Shah from the Jinnah Hospital after he had taken the deceased there. Finally, it was contended that P. Ws. Wazir Hyder and Dulara cannot be relied upon without sufficient corroboration and that Hamid Beg, the tonga driver could not have identified any of the appellants and that Makwa being one‑eyed and believing what he said, should have immediately informed constable Aziz Shah of all its details, and that it is unbelievable that Natho reached the scene and stayed there in time to see appellant Saadat's face. It is urged that Dulara's presence cannot be believed as he must have sat in another tonga, and that it was a strange circumstance that Wazir Hyder and Dulara should have nude themselves scarce from the scene, and lastly that the prosecution have given no explanation for the repeated utterance of the name of Moulabua by the deceased as testified to by constable Aziz Shah, and as mentioned in the report this contable sent over the telephone to the Canton ment Police Station.
16. In the overriding circumstances, that F. Ws. Wazir Hyder and Dulara were well‑known to the deceased and the appellants and in the details that both these witnesses have given as to the previous connection of Wazir Hyder with Saadat Mian and later of Wazir Hyder with the deceased Shahzada, and the admissions of the appellants that Wazir Hyder's wavering connections and intimate carnal relations were a matter of distress on account of which they complained to his father, we have examined the testimony of Wazir Hyder, specially, in great detail, and also of P. W. Dulara, and tested what they have said with great caution before arriving at our conclusions. We do so as in our view P. Ws. Dulara and Wazir Hyder, in whatever they have stated in regard to the manner in which the incident took place, have been fully and substantially corroborated by the testimony of P. Ws. Hamid Beg, Makwa and Natho. The learned Additional Sessions Judge has described the evidence of Wazir Hyder and Dulara as natural, consistent and worthy of credit, and further there was not the slightest doubt of their presence at the time of the incident. Indeed in his view, the evidence of these two witnesses alone was sufficient to bring home the guilt of the appellants. We fully agree with this opinion. Dulara and Wazir Hyder have fully implicated all the three appellants, and it is our considered view that there is overwhelming evidence implicating appellant Saadat Mian with deliberately stabbing the deceased Shahzada with a knife and of having inflicted fatal injuries on him at the time of the incident. We are also convinced that the two other appellants Anwar and Sultan were present at the time, but what their presence and conduct at the time of the incident amounts to in law we shall discuss at a later stage. Every circumstance of the prosecution case has been supported by reliable testimony and at every stage. It is important to note that Makwa's name has been mentioned by constable Aziz Shah in his telephonic message from the Annah Central Hospital. It was Makwa who informed constable Aziz Shah that a certain person had been knifed, and that those persons who had done so, had run away. Constable Aziz Shah also refers to seeing prior to the incident, the deceased and Wazir Hyder proceeding towards the tonga stand from the liquor shop. Besides P. W. Hamid Beg, the tonga driver against whom no bias whatsoever has been alleged much less established, has‑fully supported the prosecution case. Further there is the evidence of P. W. Makwa, and except that there was a mere allegation unsupported by any evidence by appellant Sultan that he had at one time an argument with him over brokerage of the purchase of a horse through Makwa, there is nothing to show that Makwa is otherwise interested against the appellants. Indeed, it is important to bear in mind that Sultan's contention made in the course of his statement before the learned Additional Sessions Judge, has not even been put to Makwa in the course of an otherwise detailed cross‑examination of this witness. Natho is a meat seller, who was passing by that way when he saw Shahzada lying injured on the ground, and Saadat Mian holding a knife, standing there, with appellant Anwar Ahmed nearby. Both the appellants took to their heels on his arriving there.
17. Besides, injuries were noticed on the person of appellant Saadat Mian. There is no proof that he was maltreated by any, of the police officers or that he was beaten by them and S. H. O. Fazlur Rehman has repelled this allegation. Injuries were noticed on Saadat Mian when he was produced before S. H. O. Fazlur Rehman by S. I. Shamshad Hassan at about 1 a.m. that day. Doctor Bari of the Jinnah Hospital stated that they were of the following description caused by friction against hard and blunt substance
(1) Abrasions " x 1/3" inner side right elbow.
(2) Abrasion " x " on back left elbow.
(3) Abrasion " x 1" on front left knee.
Reasonable explanations for most of the grounds urged by Mr. Hassanally have been given by S. H. O. Fazlur Rehman, Exh. 18. He has stated that from the Jinnah Hospital and when he took over the investigation of the case, he went to the scene at about 12‑10 that night, prepared mashirnama and recorded the statements of constable Aziz Shah, Makwa and others. The next morning he recorded the statements of Wazir Hyder and Dulara, and it was through them that the names of the appellants were revealed. It is, thereafter, that A. S. I. Shamshad Hassan was deputed to arrest the appellant, Anwar being produced at about I1 a.m. and Saadat Mian at about 1 p.m. Sultan was arrested at the pointation of Wazir Hyder the same day. We see nothing unusual in this conduct of the investigation and we have no hesitation in believing its details, specially as we are convinced that there is no reason for S. H. O. Fazlur Rehman or any of the police officers to falsely implicate any of the appellants, since there has not been even the slightest suggestion of enmity against anyone of them at any stage of the case. It is S. H. O. Fazlur Rehman who has stated in his testimony that there was a great deal of light at the scene of offence. This was caused by the electric street lights that were alight at the scene. The mashirnama Exh. 21 which is a memo. of the inspection of the site prepared at about 10 minutes after midnight by S. H. O. Fazlur Rehman mentions that there was sufficient electric light at the spot. In these circumstances, we have no hesitation in believing the corroborative evidence of Hamid Beg, Makwa alias Muhammad Ahmed and of Natho in regard to the manner in which the incident took place, and the active and deliberate part that appellant Saadat Mian took. We are conveinced that this is not a case of mistaken identity, for it was not a dark night but a well lit area and besides Wazir Hyder and Dulara were admittedly well known to the appellants and the deceased, and were present at the time. What they have stated has been fully supported and in a entirely disinterested manner by the tonga driver Hamid Beg and Makwa. We are convinced that Hamid Beg was able to see the entire incident and Saadat Mian and the other two appellants from where he was sitting, waiting for the additional fare to start his tonga, and also that Makwa, watering a horse of a tonga a few feet away from Hamid Beg's 'Tonga, was able to see and identify the three appellants long enough to mark their features. We do rot consider P. W. Natho a chance witness, and we agree with the opinion of 'the learned Additional Sessions Judge that Makwa like Hamid Beg is an independent and natural witness. We repeat that it is an extremely important circumstance that the name of Makwa is mentioned in the F. I. R. and we cannot accept the contention that Makwa is a false witness, principally as the details of what Makwa states in his evidence he witnessed, has been mentioned by constable Aziz Shah in his telephonic message from the Jinnah Central Hospital. As far as appellant Saadat Mian is concerned, we are convinced beyond doubt that he was and has been established proved to be the assailant of Shahzada of having inflicted fatal injuries on Shah zada's person that day. We have also referred to 'the identi fication test which was held on the 25th October, and that in our view nothing has been shown why the fact that Makwa and Hamid Beg picked out at least two of the assailants correctly should not be accepted. Indeed Makwa was able to pick out all the three appellants as being present at the time of the incident that day. We have, therefore, no hesitation in confirming the conviction and the sentence passed on appellant Saadat Mian, as there is no doubt that this is a most brutal and deliberate murder, deserving of no sympathy, with no extenuating circumstances, having been committed out of jealousy against Shahzada, for having the affections of the catamite Wazir Hyder.
18. We have also examined the case of appellant Anwar and Sultan, in the context of the contention whether there was evidence sufficient for implicating them both of an offence under section 34, P. P. C., namely, that of common intention with appel lant Saadat Mian of committing the murder of Shahzada. It has been urged on behalf of these two appellants that the prosecution have been unable to urge any circumstance to indicate that the appellants had knowledge of Saadat Mian being armed with a knife and/or that their common intention also was to murder Shahzada. Further, that there was nothing to indicate that the appellants were in agreement with the sudden intention of Saadat Mian to stab the deceased, or that there was a preconcert by these appellants before the incident, or that they together with Saadat Mian who had already armed himself with a knife, had laid in wait for the deceased and Wazir Hyder. It was also urged that there was no evidence of any previous quarrel between appellants Anwar and Sultan on one hand and Shahzada on the other in regard to Wazir Hyder.
19. Reliance was placed on Rahmatullah v. The State (P L D 1961 Lah. 221), where it was held that the words "in furtherance of the common intention of all" in section 34 of the Penal Code, meant that all the persons charged must have consented to the commission of the crime committed, i.e., the act done must be the act con templated by all. It was further held that of course when a man accompanies thieves, one of whom is armed with a revolver, he must know it to be likely that a murder will be committed if the attempt to steal is resisted, but further than that it is not safe to go. Knowledge is not the same thing as intention. Further if) the number of those taking part in this affair had been five or more, section 149, P. P. C. or section 396 would have been applicable. In that case, the position would have been different. In the present case, only 3 persons took part and in the absence of any evidence from which it can be inferred that they had a common intention prior to the occurrence, to use the revolver if resisted, the common intention which can be safely attributed to them is, at the worst the intention to commit robbery, with the added knowledge that murder was a crime which was likely to be committed in the prosecution of their common object.
20. Reliance was also placed on Hamida Bano v. Ashiq Hussain and others (P L D 190 S C 109 at p. 125) where it was remarked that the "jointness of action was envisaged in section 34, P. P. C. which consists of translation of intention commonly held, into effect. The Judicial Committee of the Privy Council has held in the case of Mahbub Shah v. The King Emperor (27 I A 148) that proof of pre‑concert is necessary in order to bring a criminal act performed by several persons within the ambit of section 34, but in a later case that of Mamand v. The King Emperor (A I R 1946 P C 45), it was clarified that the existence of such preconcert could be established even by proof of acts per formed by individuals after the completion of the main crime. Even regarding the case in the light of preconcert, there seems no doubt whatsoever that such a consensus can be achieved among the participants in the crime immediately before its execution, e.g., where the crime is exited by some action on the part of the person against whom it is committed." The learned Additional Sessions Judge, besides holding that all the three appellants had played a specific part in the crime, in con victing appellant Saadat Mian of the offence of murder, opined that the appellants Anwar and Sultan did not deserve the capital sentence, for although they had not caused the actual stabbing, they had "facilitated" the task of Saadat Mian by holding the deceased at the time of the murder. On examining the prosecution evidence in respect of these appellants, it is quite clear to us that although these two appellants were present with appellant Saadat Mian at the time Shahzada was Sabbed, there is conflicting evidence as to what they actually did at the time. P. W. Wazir Hyder has stated in the curse of his cross‑examination that although these two appellants dragged the deceased down from the tonga they left him there, and were not holding him when the appellant Saadat Mian inflicted knife injuries on the deceased. He went on to clarify that Shahzada was getting up from the ground after being pulled there, when Saadat Mian gave him the two knife blows P.W. Dulara in the Committal Court stated that only appellant Attwar had pulled Shabzada down from the tonga. P. W. Hamid Beg has also stated that it was only appellant Anwar who pulled the deceased down from the tonga, wheieafter appellant Saadat Mian stabbed the deceased with his knife. It is in consequence of this that he was only able to pick out Saadat Mian and appellant Anwar Ahmed in the identification test. According to P. W. Makwa, both Anwar.and Sultan appel lants pulled Wazir Hyder from the tonga. P. W. Natho, Exh. 16, clearly implicates only appellant Saadat Mian and Anwar Ahmed. This witness bad seen nothing of the incident whilst it actually took place. We are inclined to accept the view that even if the presence of these two appellants together with Saadat Mian at the time of the incident is accepted as it must be, the prosecution have not discharged their burden of establishing premeditation by these two appellants with appellant Saadat Mian, to murdering Shah zada. There is no evidence of knowledge, much less of intention that the three appellants had met in concert that evening, or that Anwar and Sultan were aware that Saadat Mian was armed with a knife, or that they bad been seeking the deceased and Wazir Hyder That evening previous to the time of the incident, and there is nothing at all to indicate that these two appellants Anwar and Sultan had any grievance or previous connection with Wazir Hyder to make them jealous in concert with Saadat Mian of Wazir Hyder's affection for deceased Shahzada. Whilst, there fore, we have no doubt that these two appellants were present at the time of the incident, we cannot in justice hold that they can be imputed with the necessary ingredients of section 34 for the C murder of Shahzada. It may be that in the heat of the moment and being personally affected as Saadat Mian was, he suddenly, whipped out a knife and stabbed Shahzada. It is quite likely that the intention of these two appellants was merely to give Shahzada a thrashing, and in that respect to assist Saadat Mian. It cannot be said with any certainty that by merely pulling down the deceased from the tonga after having first pulled down Wazir Hyder from the tonga, these two appellants facilitated the murder of Shahzada by appellant Saadat Mian. In the context of the rulings referred to above, these two appellants are in our view undoubtedly entitled to the benefit of our doubt.
21. We, therefore, arrive at the following conclusions : that appellant Saadat Mian was rightly convicted of the murder of Shahzada and, therefore, of an offence under section 302, P. P. C., and that the sentence of death by hanging was justified for this brutal murder. Therefore, we dismiss his appeal and confirm the sentence of death passed upon him. For the reasons we have given, we are convinced that appellants Anwar and Sultan are entitled to the benefit of the doubt. We, therefore, allow their appeals and order that they should be forthwith set at liberty, if not required in any other case.
K. B. A /A. H.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer