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Petitioner: MUHAMMAD AKBAR and 2 others VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Ajmal Mian, Zaffar Hussain Mirza Title: MUHAMMAD AKBAR and 2 others vs THE STATE Case No.:Criminal Appeals Nos. 69-K and 80-K of 1990 Criminal Appeal No,16 of 1989
JUDGMENT
Reported As: PLD 1991 Supreme Court 923 Result: Appeals dismissed Judgment JUDGMENT ' AJMAL MIAN, J.--By this common judgment, we intend to dispose of the above two appeals as they involve common questions of facts and law. The above appeals are with the leave of this Court against the judgment dated 29-3-1990 passed by a learned Single Judge of the High Court of Sindh in Criminal Appeal No,16 of 1989 (Sukkur), bearing Karachi No, as Criminal Appeal No,149 of 1989, filed by the appellants against the convictions and sentences awarded to them by the learned IInd Additional Sessions Judge, Sukkur, namely:- (i) Under section 302. P.P.C.--Imprisonment for life and fine of Rs,5,000 in default whereof further R.I. For one year; (ii) Under section 452, P.P.C. --R.I. For six months; and (iii) Under section 544-A, P.P.C.--To pay compensation of Rs,5,000 each to the heirs of Mst. Hameeda deceased, in default of payment to undergo R.I. For one year; dismissing the same and upholding the above convictions and sentences. Leave to appeal was .Granted in respect of Criminal Appeal No,69-K of 1990, which was filed by one of the co-accused Muhammad Akbar, to consider the question, whether on the basis of the dying declaration, the appellant in the above appeal could have been convicted under section 302, P.P.C. In the absence of any evidence of motive or pre-concert on the part of the appellant; whereas the other co- accused namely, Muhammad Islam and Muhammad alias Sodho, sent a joint Jail Petition for leave to appeal against the above judgment of the High Court, which was granted for the reason that in connected Petition No,49-K of 1990 (Criminal Appeal No,69-K/90), leave was already granted.
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2. The facts to be noted are that on 29-3-1987 at 3-00 p.m., the three appellants entered into the house of Mst. Hamida, a married woman, aged about 34 or 36 years having ten children, whose husband had gone to Multan for some work, to have sexual intercourse. Upon her refusal, it was alleged that Muhammad Islam appellant took out a knife and threatened that she should satisfy them, otherwise she would be killed. He also threatened at the point of knife that they had her nude photographs with them, which they would show to neighbours and also to her husband, but she allegedly refused. Thereupon, the appellant Muhammad Islam brought kerosene oil from the kitchen and sprinkled the same on her and threw a burning match-stick, because of that her clothes caught fire and her face and other parts of the body were burnt. The appellants ran away. Upon her cries, her mother-in-law Mst. Amiran came and tried to extinguish the fire. Other persons also came there. She was taken to the hospital by her mother-in-law Mst. Amiran and others. Her dying declaration (Exh.9) was recorded by P.W.1 Amanullah Soomoro, A.C.M. Sukkur, at 7-45 p.m. In presence of P.W.8 Dr. Hazoor Bux, upon the latter's certification that she was in a position to make statement. A photostat copy of the above dying declaration was handed over by P.W.1 Amanullah Soomoro P.W.7 Muhammad Arshad (who was sent by the Incharge, Police Station 'B' Section, Sukkur, upon receipt of a telephonic message from the Civil Hospital that a woman in a burnt condition had been admitted in the hospital and that they should record her statement), who lodged the F.I.R. At 8-30 p.m. On the same day at the above Police Station. On the following day, Mst. Hamida expired. Thereupon, P.W.7 Muhammad Arshad, A.S.I., investigated the case and submitted challan against the three appellants in the Court of the learned IInd Additional Sessions Judge, Sukkur. The prosecution., in support of the case, examined P.W.1 Amanullah Soomoro, A.C.M. Sukkur, who recorded the dying declaration in response to a letter (Exh.8) written by P.W.7 Muhammad Arshad, P.W. 2 Sher Muhammad, who produced Mashirnama of arrest of accused Muhammad alias Sodho (Exh.11), Dr. Abdul Khaliq, P.W.3, who carried out post-mortem and prepared post-mortem report of the deceased (Exh.13), P.W.4, Mst. Amiran, mother-in-law of the deceased, who produced her 164, Cr.P.C. Statement as Exh.15, P.W.5 Mst. Bismillah, a neighbour of the deceased who also produced her 164, Cr.P.C. Statement (Exh.17), P.W.6 Abdul Hakim, who produced Mashirnama of injuries on the person of the deceased as Exh.21, Mashirnama of the place of wardat Exh.22, Mashirnama regarding securing of burnt clothes and hair of the deceased as Exh.23, Mashirnama of arrest of accused Muhammad Islam and Muhammad Akbar as Exh.24, Mashirnama of production of cassette by the appellant Islam as - Exh.25, Mashirnama of dead body of Mst. Hamida as Exh.26, Inquest report as Exh.27, Mashirnama of recovery of white chaddar which covered the dead body as Exh.28, P.W.7 Muhammad Arshad, A.S.I., who had recorded the F.I.R. And who had also written a letter to the Medical Officer for examination and treatment of Mst. Hamida Exh.30, P.W.8 Dr. Hazoor Bux, in whose presence and upon whose certification, dying declaration of Mst. Hamida was recorded. The prosecution dropped P.Ws. Anwar and Asad as per statement of P.P. (Exh.18). 3. The appellants in their statements under section 342, Cr.P.C. Denied the factum of having committed the alleged offences. Appellant Muhammad Islam, in reply to Question No,7, namely, "What else have you to say?", stated as follows:- "I reside in same Mohallah as the co-accused. Two days prior to this incident Tariq s/o Mst. Hamida deceased had caused injuries to the nephew of Islam just in front of the house of deceased. On which I went to complain to All Bux and Mst. Hamida the parents of Tariq who had caused injuries to my nephew. On which Ali Bux and Mst. Hamida had exchanged hot words with me as consequence whereof co-accused Sodho and Akber came there and tried to intervene but Ali Bux and deceased Mst. Hamida had threatened them also of the dire consequences. On account of this incident Ali Bux and Mst. Hamida were annoyed with us. We are innocent and falsely implicated."
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' The other two appellants also repeated the above statement of appellant Muhammad Islam in their statements under section 342, Cr.P.C. In reply to Question No,7. 4. The defence examined D.W.1 All Bux (Exh.38), the husband of the deceased as their witness, who inter alia stated that he had received compensation of Rs,30,000 from the accused persons. The learned Additional Sessions Judge, Sukkur, after hearing the learned counsel for the appellants and the State, by his aforesaid judgment dated 30-3-1989, convicted the appellants and sentenced them as above. Against the above judgment, the appellants had filed the above appeal in the High Court, which was dismissed by a learned Judge in chambers. After that, appellant Muhammad Akbar filed a petition for leave, whereas the appellants Muhammad Islam and Muhammad alias Sodho, sent a joint Jail Petition, which were granted as mentioned above to consider the above question. 5. In support of Criminal Appeal No,69-K of 1990, Mr. Azizullah A. Shaikh, learned counsel for the appellant Muhammad Akbar, has vehemently contended that, on the basis of the dying declaration, appellant Muhammad Akbar could not have been convicted as the alleged common intention on the part of the appellant was to have sexual intercourse with the deceased and not to commit murder, and that the individual act on the part of appellant Muhammad Islam to sprinkle kerosene oil on the deceased and to put the same on fire resulting into her death, cannot make appellant Muhammad Akbar vicariously liable for the above offence. To re-inforce the above submission, he has pointed out that neither the learned Additional Sessions Judge nor the High Court has pressed into service section 34, P.P.C. ' Mr. Rashid Akhtar Qureshi, learned A.O.R. Who appeared for the appellants Muhammad Islam and Muhammad alias Sodho, has submitted that the dying declaration is liable to be discarded as it was not recorded in the language, namely, Urdu, in which it was made, particularly in the absence of any material that the recording Magistrate, P.W.1 Amanullah Soomoro A.C.M. Was well conversant with Urdu, Sindhi and English languages. His further submission was that according to the post-mortem report, Mst. Hamida was so extensively burnt that it was not possible for her to have made a dying declaration, as she must have been unconscious. ' Mr. Muzaffar Hassan, learned A.O.R. For the State, has contended that the dying declaration is free from any infirmity as to warrant its exclusion from consideration and that from the contents of dying declaration, it is evident that all the three appellants had common intention not only to have sexual intercourse but to kill her in case of her opposition and, therefore, they have been rightly convicted. His further submission was that factually the sentences awarded to them are lenient, as they deserved capital punishment because of the heinous nature of the crime. 6. Before touching upon the submissions made by Mr. Azizullah A. Shaikh, it may be appropriate to deal with the submissions made by Mr. Rashid Akhtar Qureshi. Mr. Qureshi's above first submission is untenable. There is nothing on record from which it can be inferred that P.W.1 Amanullah Soomoro had not recorded the dying declaration in verbatim, though in the translated form. Nothing has been brought out in his cross-examination which may cast doubt as to the veracity of the contents of the dying declaration which was made in Urdu and translated into Sindhi and English. The High Court has relied upon the case of Niamat Ali v. The State 1981 SCMR 61, the case of Shahbaz and another v. The Crown PLD 1953 Lahore 566, and the case of Taj Mahmud and others v. The State PLD 1960 (W.P.) Lahore 723, in which inter alia it has been held that a dying declaration, if does not suffer from any infirmity, is sufficient to warrant conviction for an offence. In the above first two cases, the convictions were sustained on the basis of dying declaration, whereas in the third case, the conviction was set aside as it was found that the dying man in his statement had indulged in telling lies. ' As regards Mr. Qureshi's above second submission, suffice to observe that the same is based on surmises and conjectures, and it cannot negate the evidence of P.W.8 Dr. Hazoor Bux, in whose
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presence and upon whose certification, the dying declaration was recorded. 7. Adverting to the above contentions of Mr. Azizullah A. Shaikh, it may be pertinent to reproduce the dying declaration and section 34, P.P.C., which read as follows:- Dying Declaration.-- "Dying Declaration.--Dated 29-3-1987 at 7-45 p.m. Place:- Female Medical Ward, Civil Hospital, Sukkur. ' Injured woman disclosed her name as Hamida. She is fully conscious and is able to give statement without any disturbance. We enquired from her for our satisfaction on which she disclosed that she is conscious and is able to give statement, injured woman Hamida is speaking in Urdu. We can talk and understand Urdu. She is giving statement in Urdu, while we are writing in Sindhi. Her statement is as under:- "I Mst. Hamida w/o All Bux Shaikh, aged about 36 years, r/o Mall Godown, Quarter No,4, Bunder Road, Sukkur, is saying that my husband is gone to Multan and I am residing with my minor children in the house. Today at about 3-00 p.m., three persons namely, Akbar s/o Anwar Ali, 2. Sodho s/o unknown, 3. Islam s/o unknown entered in my house, these persons are residing in same Muhalla and known to me. They asked me that I should allow them to commit sexual intercourse with me. I refused, on which Islam took out knife and threatened me that I should satisfy them otherwise I would be killed, but I refused to give my chastity. Islam further threatened me with knife that my nude photographs are with them, they will show the same to the neighbours and also to my husband, but I bluntly refused that I will not give my chastity, at any price you can do as you like. Thereafter Islam brought kerosene oil from kitchen and he put it on me, thereafter he threw burning match stick at me. My clothes were burning and they ran away, fire covered me, my face and other parts of my body were set on fire. I raised cries, on which my mother-in-law Mst. Amiran came there, she tried to extinguish fire, other persons also came there but I could not see them because my eyes were also affected by fire. ' The statement was read to Hamida in Urdu, who admitted it to be correct. L.T.I. Mst. Hamida. Before me. (Sd.) Illegible. 29-3-1987. A.C.M. Sukkur L.T.I. Mst. Hamida. ' She is fully conscious and is able to give dying declaration. (Sd.) Illegible. 29-3-1987." ' Section 34, P.P.C.-- 34. Acts done by several persons in furtherance of common intention. --When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 8. From the above-quoted dying declaration, the following inferences can be drawn:- (i)that the three appellants entered into the house of the deceased at 3-00 p.m. Knowing that her husband had gone to Multan, with the common intention to commit sexual intercourse with her; (ii)upon refusal on the part of the deceased to yield to the appellant's demand, appellant Islam took out knife and threatened the deceased that she should satisfy them otherwise she would be killed; (iii)upon again refusal on the part of the deceased, appellant Islam further threatened the deceased with knife that her nude photographs were with them and they would show the same to the neighbours and also to her husband, but she did not yield to the above threats;
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(iv) that upon her continuous refusal, appellant Islam brought kerosene oil from the kitchen, sprinkled it on the deceased and thereafter threw a burning match stick at her, resulting in burn injuries on face and other parts of her body and causing her death; (v) the appellant Islam held out threats on behalf of the appellants; (vi) that all the appellants remained in the deceased's house till she was put to fire as the deceased in her dying declaration stated that "my clothes were burning and they ran away'. 9. It may be pointed out that section 34, P.P.C. Imposes vicarious liability by providing that "when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". In the present case, there is no other direct evidence of the incident except the above dying declaration made by the deceased. The question, therefore, arises, whether common intention can be attributed on the part of the three appellants for the commission of murder. 10. As pointed out hereinabove, all the three appellants with common intention entered into the house of the deceased to commit sexual intercourse with her. The repeated refusal on the part of the deceased in spite of above threats held out by appellant Islam at the point of knife, prompted appellant Islam to bring kerosene oil from the kitchen to sprinkle it on the deceased and to throw a burning match stick at her, all in presence of the other two appellants. Therefore, the further question which arises is, as to whether the other two appellants shared the common intention with appellant Islam in his act of burning the deceased to death in order to make them vicariously liable under section 34, P.P.C. As at the time of entering the house of the deceased, the common intention of the three appellants was to have sexual intercourse and not to burn her to death as they had not brought kerosene oil with them. 11. None of the counsel appearing for the parties has cited any case-law for or against. However, we may refer to the following cases which have some bearing to the controversy in issue:- (i) Mst. Hamida Bano v. Ashiq Hussain and others PLD 1963 SC 109; ' in which this Court accepted an acquittal appeal against four acquitted accused by setting aside the judgment of the High Court and restoring the judgment of the trial Court by applying section 34, P.P.C. And as to the interpretation of above section 34, the following observations were made:- "A joint action by a number of persons is not necessarily an action performed with a common object. It may be performed on the spur of the moment as a reaction to some incident, and such a case would fall more correctly within the rule of constructive liability laid down in section 34, P.P.C., which is based on "common intention", a condition of mind which is more directly and proximately connected with the action than is the formation of a common object. This may appear more clearly when it is recalled that the law makes specific provision for dispersing an unlawful assembly. Such an incident is not applicable to the jointness of action envisaged in section 34, P.P.C., which consists of translation of intention, commonly held, into effect. The persons who have in the present case been held to have joined in a common assault on the Thanedar can be more precisely held to have acted with a common intention within the meaning of section 34, P.P.C. Than in furtherance of a common object. The Judicial Committee of the Privy Council have held in the case of Mahbub Shah v. The King Emperor 72 IA. 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 AIR 1946 PC 45, it was clarified that the existence of such pre-concert could be established even by proof of acts performed by individuals after the completion of the main crime. Even regarding the case in the light of the requisite of pre-concert, 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 excited by some action on the part of the person against whom it is committed." (ii) Mitho v. The State PLD 1963 (W.P.) Kar. 1;
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' in which a Division Bench of the erstwhile High Court of West Pakistan, while construing section 34, observed that the same contemplates an act in furtherance of common intention and not the common intention of all the persons that makes each of them liable. It was held that though common intention of M and A was to commit robbery but in the course of committing that criminal act, murder was committed by M, both were held liable for the murder as the murder was committed by M in furtherance of common intention of committing robbery. (iii) Abdul Jabbar v. The State PLD 1964 SC 81; ' in which the facts were that A and B armed with deadly weapons, entered into a house to commit robbery. B on being thwarted in his purpose stabbed deceased while A at pistol point, held off inmates of the house from raising cries and seeking assistance. It was held by this Court that A shared common intention with B in killing deceased and conviction under section 302/34, P.P.C. Was proper. (iv) Khair Muhammad alias Khairoo v. The State PLD 1975 SC 351; ' In the above case, this Court, while accepting the appeal of the accused against conviction under section 302, P.P.C., commented upon section 34, P.P.C. And observed that "It is not inconceivable that where several persons belonging to a single party are already present at the spot, they might suddenly develop common intention or even common object at the spur of the moment and commit the illegal act in prosecution or furtherance thereof. It fact quite realistically such an eventuality has been clearly envisaged in the "Explanation" to section 141, P.P.C. Which says that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly". (v) Hayat v. The State 1977 SCMR 340; ' In the above case, the facts were that five persons were tried under sections 302/34, P.P.C. Two of the accused were acquitted, while three were convicted. One of the convicted accused brought an appeal before this Court and it was contended that the common object of the assailants was to regain a bough which had been taken away by a brother of the deceased and since the appellant took no part in the attack on the deceased, he could not be said to have shared common intention of the accused who had killed the deceased. The above contention was repelled as follows:- "We are unable to accept this contention because the evidence shows that after their demand for the of the bough was refused they armed themselves with lethal weapons like spears and sticks, went in a body to the behk of Jalloo, shouted that they had come to see how Naurang could retain possession of the bough, without making any attempt to remove the bough surrounded the three brothers, attacked all three of them when they were attempting to flee killing one of them on the spot and injuring the other two and then lifting the bough marched back triumphantly to their dera. These facts conclusively prove that the assailants' intention was to kill and then to take away the disputed bough. Section 34 was, therefore, clearly applicable to their case and though the appellant himself took no part in the assault on Natu deceased, the killing must be held to be in furtherance of the common intention of those who actually killed him and of the appellant. On this finding there is no ground for our interference and we dismiss the appeal." (vi) Hassan Din v. Muhammad Mushtaq and 2 others 1978 SCMR 49; ' In the above case, this Court, while declining a petition for leave against the acquittal of certain accused tried under sections 302/34, P.P.C., inter alia observed that under section 34 vicarious liability cannot be visited unless some strong circumstance exists showing common intention and that mere presence of a person on the spot does not necessarily attract section 34, P.P.C. (vii) Imam Bux v. The State PLD 1983 SC 35; ' in which the facts were that appellant Imam Bux and his brother Ghazi were convicted under section 302 read with section 34, P.P.C. The former was sentenced to transportation for life, whereas the latter was sentenced to death by the learned trial Court. Their appeal failed before the High
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Court of Sindh and Balochistan. Thereupon, they moved a Jail Petition in this Court. Leave was refused in respect of Ghazi but leave was granted to the appellant. The prosecution case was that Maula Bux, complainant, was driving the scooter on 28-9-1971 at 2-30 p.m. On the inspection path of Sher Khan Minor within Police Station Paddidan, District Nawabshah. On the back seat of the scooter was his cousin, Jan Muhammad deceased. When they passed by the shop of Ali Mardan, the two accused emerged out of the sar bushes, Ghazi armed with a rifle and the appellant with a pistol. They challenged the complainant to stop and when Maula Bux and deceased Jan Muhammad dismounted, Ghazi fired from his rifle hitting the deceased. There was another shot, which according to the ocular witness, had been fired by the appellant though in the F.I.R. It was not attributed to the appellant. The question before this Court was, whether section 34, P.P.C. Could be pressed into service by the two Courts below against the appellant. The majority view which was written by M.S.H. Qureshi, J., was that a case under section 34, P.P.C. Was made out. His Lordship observed as follows on the scope of above section 34:- "5. Since no injury had been caused by the appellant nor any incriminating article recovered from him, the question of his liability depends on the applicability of section 34, P.P.C. That section provides that where a criminal act is done by several persons, in furtherance of the common intention of all, then each of such persons is liable for that act in the same manner as if it were done by him alone. The section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all. It does not create a distinct offence but merely enunciates a principle of joint liability for acts done in furtherance of common intention of the offenders. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Common intention usually consists of some or all of the following elements; common motive, pre-planned preparation and concert pursuant of such plan. Common intention, however, may develop even at the spur of the moment or during the commission of the offence. Conversely common intention…
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