The appellant was charged with conspiracy to murder, in consequence of which conspiracy murder was committed. Under the joint effect of Section 302/120B of Indian Penal Code, he was convicted and sentenced to death by Additional Sessions Judge, Pehawar Division.
The appellant was tried along with the actual murderer Umar Sher, and with Mst. Mehr Taja who had been the wife of the murdered man, Ali Askar. The murder was committed on August 23, 1938, in the village of Taus Banda. The guilt of Umar Sher was not really open to doubt. He was practically caught red-handed. He was caught running away with a single barrel shot gun in his hand, the barrel of which smelt as if freshly discharged. There was an empty cartridge jammed in the barrel. When the appellant came up from the field in which he had been working about half a mile away from the scene of the murder he asserted that Umar Sher was innocent and should be released, but the other present refused to do so.
Umar Sher’s main defence seems to have been absence of motive. This fact however was relied upon by the prosecution as showing that he was a hired assassin, bribed to commit the murder by the appellant and Mst. Mehr Taja who were co-conspirators in that regard. This was found by the Court to have been the fact. The principal evidence of the conspiracy between these two prisoners consisted of three letters, two from the female prisoner to the appellant, and one from the appellant to the female prisoner.
It will be convenient to set out the relevant portions of the three letters. Exhibit P.A., in the handwriting of Mst. Mehr Taja:
Greetings to thee O my sweet-heart. Now I shall sell myself and do this act if only I have thee at my back. What a blissful hour it would be when with Amir Jan wailing over Ali Askar we contract our Nikah and enjoy ourselves. However hard on thee I have been in the past, that is all past. Henceforth I solemnly promise to desist. I do fervently cherish the hope that God will make thee mine. Try and send Mir Aftab often to me so that I may talk to him. I have found out money for thee but thou must unhesitatingly find out the man. My heart is bursting for thee and I long for thee immensely. Accept my greetings.
Exhibit P. B. , also in Mst. Mehr Taja’s handwriting:
Letter to the sweet-heart. For God’s sake spare not a moment or thou wilt ever repent my loss. They are all one against me. It would be better if aught thou couldst do.
Exhibit P. D., in handwriting of the appellant:
My sweet-heart and the bearer of my burden. You must find out the money or I would die. Is it of my choice to be roaming about and thou be enjoying with him, but what shall I do. If I had my own way I would not have left you to remain with him. I am burning and have pity on me for God’s sake. To me the passing of each day is like months and years. Once place thy self in my charge and satiate me with the honey of thy red lips. Even if thou cuttest my head off my neck I would still yearn for thy white breast…. The house of the torturer will be rendered desolate. Mirza Akbar’s limbs have grown sapless after thee.
The judges in the Court below have found in these letters, their authenticity being established, evidence justifying the conviction of the appellant and Mst. Mehr Taja. The Judicial Commissioner in dismissing these prisoners’ appeals thus summed up the position, with special reference to the letters. He said:
There is a reference to Mirza Akbar by name in Ex. P. D. and the name clearly refers to the writer of the document. Furthermore, the three documents taken as a whole show that the two writers of the documents desired to get rid of Ali Askar so that they should marry each other. There was a question of finding money for hired assassin to get rid of him. Subsequently we find that Ali Askar was shot by a man who had no motive to shoot him. In addition to this there was the strange conduct of Mirza Akbar when Umar Sher was arrested. There is no reason for doubting the statement of the witnesses that he did request that Umar Sher should be released. In my opinion there is no doubt whatsoever that these two Appellants Mirza Akbar and Mst. Mehr Taja did enter into conspiracy to murder Ali Askar and that they hired Umar Sher to commit the actual murder, which he did.
But the appellant’s contention was that this conclusion was vitiated by the admission as against him of a statement made by Mehr Taja before the Examining Magistrate after she had been arrested on the charge of conspiracy. That statement which was made in appellant’s absence was admitted in evidence both by the trial judge and by the Judicial Commissioner as relevant against the appellant under Section 10 of Evidence Act.
Where the evidence is admissible it is in their Lordships’ judgment on the principle that the thing done, written or spoken, was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. The words written or spoken may be a declaration accompanying an act and indicating the quality of the act as being the act in the course of the conspiracy: or the words written or spoken may in themselves be acts done in the course of the conspiracy. This being the principle, their Lordships think the words of Section 10 must be construed in accordance with it and are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The common intention is in the past.
In their Lordships’ judgment, the words “a common intention” signify a common intention existing at the time when the thing was said, done or written by the one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference. In their Lordships’ judgment Section 10 embodies this principle. In cases the distinction was rightly drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of the conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past.
In their Lordships’ judgment statement of Mehr Taja falls under the latter category, and was wrongly admitted. But the question of law is not really material in this case. The statement so far from admitting a conspiracy with the appellant, categorically denied it. While the woman stated that the appellant had threatened to kill her and her husband if she refused to marry him, she had refused his advances and stopped him coming to the house.
In their Lordships’ judgment, however, the admission of the statement did not vitiate the proceedings. On the material before the Court, after the statement is excluded, there was evidence sufficient to justify the conviction. The terms of the letters are only consistent with a conspiracy between the prisoners to procure the death of Ali Askar. The vague suggestion that they related merely to a scheme to obtain a divorce and to raise money for that purpose is clearly untenable. They accordingly humbly advise His Majesty that the appeal should be dismissed.