JUDGMENTBY: THOMSON CJ

This appellant was tried and convicted at the Kedah Assizes on the following charge:--

"That you on the 27th day of May, 1956, at about 7.00 p.m. at Feeder

14, Sanglang, in the District of Kubang Pasu, in the State of Kedah,

committed murder by causing the death of one Inin s/o Endin Kelai and

you thereby committed an offence punishable under section 302 of the

Penal Code."

He appealed against his conviction and we dismissed his appeal. In doing so, however, we intimated that we would give our reasons at a later stage.

The prosecution case was that the appellant Osman, the deceased Inin and a man named Hashim all lived in the same small village on the banks of an irrigation canal. It was throughout treated as a matter of common knowledge that the people here are subject to considerable Siamese influence and that among them "Man" is a common abbreviation of the name "Osman" and "Chin" a common abbreviation of the name "Hashim". There was evidence, which may or may not have been true but which was certainly not directly contradicted, to the effect that on the evening of 27th May at a time which was not clearly established the deceased left his house to go to a nearby shop. Some time later shouts were heard from him and a sound which was described as "pok" and he was found sitting on the canal bund suffering from a head injury. In reply to questions as to who had injured him he named the appellant and Hashim. Immediately after the sound "pok" was heard and immediately before the deceased was found injured a lad of seventeen years of age (Othman bin Din) had seen the accused and Hashim running on the bund and immediately afterwards saw the deceased lying on the ground. The deceased died later in the evening and on subsequent medical examination was found to have died from a fracture of the skull and intracranial haemorrhage caused by a blow probably with a heavy instrument with a blunt edge such as the back of a "parang" or the edge of a small axe. There was evidence of one blow only but it was said that a considerable amount of force must have been used. Later in the evening the appellant was arrested at his own house, but Hashim could not be found and, indeed, would appear not to have been found up to the time of the trial. In this connection it is to be observed that the scene of the incident is about, 12 miles from the Siamese border.

The defence was one of alibi. The appellant denied all knowledge of the affair and said that at all material times he was in his own house. His evidence was corroborated by the evidence of his father-in-law, a friend and his wife.

With regard to the prosecution evidence it is to be observed at this stage that only one blow was struck and there was no evidence as to who struck that blow. There was evidence, however, which, if believed, showed that the blow was struck by either the appellant or by Hashim, and there was evidence from which the inference could be drawn that when the blow was struck the appellant and Hashim were acting with a common intention to cause the death of the deceased. There was, however, nothing to show that it was one rather than the other of them who actually struck the blow. In the circumstances the prosecution were forced to rely on section 34 of the Penal Code, which reads as follows:--

"When a criminal act is dune 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 the act were done by him alone."

The learned trial Judge dealt with the cage as follows.

In the first place he asked the Assessors "Having heard all the evidence are you satisfied that it was the accused who inflicted the fatal injury described by the Doctor upon the deceased?" He prefaced that question, however, by the following observations:--

"I have not incorporated into the questions the issue of joint

liability or common inten

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