P L D 1956 (W (PLP)

SHABIR AHMAD, J.‑

Of the sixteen persons mentioned as culprits in the first information report made at Police Station Dinga in the District of Gujrat, at about 4 p.m., on the 5th of December 1954, with regard to an incident which had occurred at about chhahwela that day in village Tapiala, and had resulted in some fatal and other injuries, the police challaned fifteen. Of these fifteen tried under sections 302/149 325/149 and 148 of the P. P. C., Mr. Mushtaq Hussain Munir. Sessions Judge, Sialkot acting as ex‑officio Additional Sessions Judge, Gujranwala at Gujrat, while acquitting the other ten convicted Feroze, Wazir, Sharif, Mian Khan and Bashir under section 326/149 and Feroze, Nazir and Mian Khan also under section 148 of the P. P. C. Each of the five was sentenced to five years' rigorous imprisonment under section 326/149 while the sentence passed for the offence under section 148 of the P. P. C. was one year the two sentences being ordered to run concurrently. The decision of the learned trial judge has been attacked by two petitions of appeal and one for revision. The five convicted persons have questioned their convictions by this appeal, while the Provincial Government have presented an appeal (Criminal Appeal No. 1008 of 1955) with a view to having the acquittal of the above‑mentioned five accused of the offence of murder, set aside or, at any rate, their sentence under section 326/149 of the P. P. C being suitably enhanced. The petition for revision (Criminal Revision No. 900 of 1955) has been presented by Ghulam Rasul, who himself received injuries in the incident, with a view to having the sentence of all the five convicted accused under section 326/149 of the P. P. C. suitably enhanced. The two appeals and the petition for revision, which were heard together, will be disposed of by this order. The occurrence resulted in the death of Ghulam Haider and Nawab, and on the side of the complainants Ghulam Rasul, his brother Muhammad Hussain and Ghulam Qadir received injuries. The total number of injuries received by the complainant party was about half a century. Ghulam Haider deceased received eighteen injuries, six of which were incised wounds and twelve contused wounds, and two of the incised wounds, which were on the head, had fractured the skull. Nawab deceased received eight injuries, four of which were incised wounds. One of the incised wounds which was on the head, and one of the contused wounds, which was also on the head, were declared to be fatal. The doctor, who performed the post‑mortem examination, found that there was a fracture starting from over the left part of the occipital bone which ran forwards and downwards over the temporal bone and ended in the middle of the posterior fossa of the base of the skull. One of the other contused wounds received by Nawab had resulted in the fracture of his left humerus. Ghulam Rasul received thirteen injuries, all with blunt weapons, one of which was grievous in character as it had fractured the right fibula Muhammad Hussain received ten injuries caused with blunt weapons; all of which were simple in character, while Ghulam Qadir received two injuries, both of which were simple in nature. The five appellants also were found to have some injuries when they were examined on the 8th of December 1954 by a doctor. Feroze appellant had a contusion, 4" x 3", simple in nature. Sharif had four injuries, of which two were incised wounds, one a swelling and one a grievous injury caused with a blunt weapon which had resulted in the fracture of the left radius bone. Nazir appellant had a punctured wound, " x 1/6" x 1/8", on the back of the left forearm just below the elbow joint. Mian Khan appellant had one incised wound and a contusion, both of which were simple in character, while Bashir appellant had a simple blunt‑weapon injury on his head. The first information report, which as mentioned already was recorded at 4 p.m. on the 5th of December 1954, at Police Station Dinga, which is at a distance of about seven miles from village Tapiala, where the occurrence took place, was made by Ghulam Rasul, one of the injured persons, who like the other persons of the complainant party who had received injuries in the incident, was carried on a cot to the police station. Nawab had died at the spot while Ghulam Haider breathed his last before the party could reach the Police Station. The report gave detail of the incident as well as of the strained relations between the parties, and added that besides the informant the incident had been witnessed by Muhammad Hussain (P. W. 9), Ghulam Qadir (P. W. 10), Sardara (P. W.11) and Abdullah (P. W. 13). At the trial the prosecution produced Ghulam Rasul (P. W. 8), Muhammad Hussain (P. W. 9), Ghulam Qadir (P. W. 10), Sardara (P. W. 11) and Abdullah (P. W. 13) as eye‑witnesses of the occurrence. The learned trial judge discarded the statements of Sardara (P. W. 11) and Abdullah (P. W. 13), but acted on those of the other three witnesses, though not in their entirety. The gist of the statement of Ghulam Rasul (P. W. 8) was that the five appellants and the ten acquitted accused had rounded up him and the other injured members of the complainant party and caused them the injuries which have been detailed above. He added that because of a fight between them which had taken place about four months earlier both the parties were sent up for trial and had been bound down to keep the peace. The statement of Ghulam Rasul was corroborated by his brother Muhammad Hussain (P. W. 9) and Ghulam Qadir (P. W. 10) in all material details. When questioned by the Committing Magistrate to explain the evidence against them, the appellants did not put forward any counter version. In the Court of tile trial judge, however, while the others admitted that they had caused injuries to the party of the complainants, Bashir appellant said that he had nothing to do with the incident. The version of the appellants other than Bashir was that they were weeding their wheat field when they were attacked by the two deceased and the three injured prosecution witnesses who carried spears and hatchets and opened an attack on them. They were beaten by the party of the complainants and in self‑defence beat them. Feroze appellant, however, did not admit having caused any injury saying that he fell down unconscious on receipt of an injury. No ,evidence was produced in defence. The learned counsel .for the appellants urged that the appellants other than Bashir had acted in the exercise of the right of self‑defence as pleaded by them and that, at any rate, it was not established that it was a case of a concerted attack by the appellants, as it appeared that because of something having occurred suddenly both the parties flared up with the result that members of each received injuries. As mentioned already, none of the appellants produced evidence in defence to support the plea that it was in the exercise of the right of private defence of their persons that they had caused injuries to five members of the complainant party, two of whom succumbed to them. The absence off defence evidence, however, is by itself no ground for discarding the plea because if the plea receives support from any evidence, direct or circumstantial, on the record, it is not necessary to have defence evidence in support of it. I will, therefore, proceed to examine if there is any evidence to suggest that what the appellants other than Bashir stated was reason ably possible. There is nothing in the statements of the eye witnesses produced by the prosecution to suggest that the appellants were attacked nor do any circumstances emanating from the evidence led by the prosecution point in that direction. The witnesses produced by the prosecution explain the injuries found on the persons of the appellants by saying that they were caused by members of the complainant party when attacked. The disparity in the number of the injuries received by the parties is so great that I cannot bring myself to accept the contention that it was the appellants' party that was attacked. If the complainant party had come prepared to attack, as was suggested by the defence, it is unlikely that they will cause about a dozen injuries, all but one of which were trivial, while receiving about half a century of injuries, some of which were grievous and some individually fatal. It cannot be overlooked that the plea of self‑defence was raised only in the Court of Session and was not raised in the Court of the Committing Magistrate. It is true, as urged by the learned counsel for the appellants, that an accused person is not bound to place all his cards on the table at the first opportunity that arises for such a thing to be e done, but it is equally true that if an accused person does not ‑take a plea at the earliest opportunity the plea may be rejected by the Court on the ground that it was not taken earlier. In the present case, as I have indicated already, the circumstances prove that the plea of self‑defence was baseless and I, therefore, reject it. The argument of the learned counsel for the appellants that it was probably in a sudden flare‑up that both parties received injuries is also not convincing. The learned counsel overlooked the fact that it was nobody's case that it was in consequence of a sudden quarrel between the parties that there ensued a fight in which members of both the parties received injuries. I am prepared to grant that the mere fact that a certain theory was not put forward at the time when evidence was recorded does not prevent a Court from accepting it but before the Court accepts a theory which has no evidence given by the witnesses to support it, there must be strong circumstantial evidence which makes it very probable. There is not an iota of evidence to suggest that it was a sudden flare‑up. between the parties, and the argument of the learned counsel for the appellants that it was cannot but be rejected. Having considered the prosecution evidence and the circumstances of the case, I have arrived at the conclusion that the prosecution version with regard to the incident is in the main correct. The fact that Bashir appellant did not admit his participation in the occurrence is immaterial because the evidence on the record leaves no doubt that he took as active a part as the other appellants. The learned trial judge has acquitted ten of the fifteen accused persons, but I am not satisfied that none of the acquitted accused had taken part in the incident. If five members of the complainant party who received injuries had not been greatly outnumbered it is difficult to believe that they would have received so many injuries and be able to cause only so few. There is, however, no appeal by the Government to question the acquittal of the ten acquitted accused, and I will, therefore, say no more about the matter. I will now deal with the question whether the offence committed by the five appellants, who are proved to have attacked the complainant party, amounted to anything more than one under section 326 of the P. P. C. which section was held by the learned trial judge to be applicable. While dealing with this aspect of the case, the learned trial judge remarked that in view of the fact that the vast majority of injuries received by the complainant party were simple in character, it was not safe to infer that the intention of the assailants was to cause death. It appears to me that the learned trial Judge did not look at the matter in a satisfactory manner. It may be that the circumstances did not prove that the assailants had the common intention to kill the two deceased or any of the members of the complainant party, but in view of the fact that the number of assailants being at least five, section 149 of the P. P. C. was applicable, the relevant question was not whether the intention of the assailants' was to cause death of the members of the opposite party, but whether their common objects was to cause such death or such death was so likely a result that each member should have known that it was likely to be caused. The distinction between sections 34 and 149 of the P. P. C both of which deal with vicarious liability, was recently pointed out in Nawab and others v. The Crown (P L R 1954 Lah. 8=P L D 1954 Lah. 78), but it appears that the case was not cited before the learned trial judge. Now, section 34 of the P. P. C. is applicable when the common intention of the participants in a crime is to commit an offence, and will have application when the number of the participants in the crime is more than one, be that number five, more than five or only two. If it is established that the offence which resulted was committed in furtherance of the common intention of all the participants, the fact that any of them did not take part in the commission of that offence will not prevent his being held liable for the offence. In cases, however, where the number of the assailants is five or more than five, section 149 of the P. P. C. is attracted. This section has no concern with the common intention of the participants in the crime but concerns itself mainly with their common object. The law looks with disfavour at unlawful assemblies and it is, therefore, provided by the second part of section 149 of the P. P. C. that even if the offence committed by any member of the unlawful assembly was not committed in furtherance of the common object of that assembly, every one of the members of the unlawful assembly would be liable for the offence if the result p was such as was known to be likely. In this respect section 34 of the P. P. C. is materially different from section 149, because the former section will apply only if the offence was committed in furtherance of the common intention of all the participants in the crime and the mere fact that the offence committed should have been known to be a likely result will not attract section 34 of the P. P. C. It need hardly be said, however, that what the common intention or the common object of the participants in a crime was is, in almost all cases, to be inferred from the circum stances as direct evidence with regard to these matters is available in very rare cases. As section 149 of the P. P. C. is applicable to the present case, I will not‑ consider the circumstances with a view to finding whether or not the common intention of the participants was to commit murder and will confine myself only to the ingredients of section 149 of the P. P. C. It is proved that some of the members of the unlawful assembly carried kulharis while the others carried dangs. It is further proved that the relations between the parties were strained and that criminal litigation between them was pending, and in the absence of anything to indicate that the assailants had not gone to commit murder, I would hold that the common object of the unlawful assembly was to kill, if not all, at least some of the members of the opposite‑party. But even if the circumstance that only some of the injuries caused to the members of the complainant party were grievous in character and only four of them were fatal, were to be taken to be proof of there being no common object to cause death, I can see no escape from the Second Part of section 149 of the P. P. C., which is in the following terms:‑ "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence". It can hardly be doubted that, if nothing worse, the common object of the unlawful assembly was to give a beating to the members of the opposite‑party. Now, if some members of that assembly carried sharp‑edged cutting weapons, like kulharis, can any member of the assembly reasonably complain that he was treated unfairly if a Court holds that he should have known that in the circum stances death was a likely result. It is not open to question, and was in fact conceded by the learned counsel for the appellants, that the persons who caused fatal injuries were guilty of murder and it is obvious that, for the reasons detailed above, all the appellants were equally guilty of an offence of murder by the application of section 149 of the P. P. C. I would, therefore, accept the appeal of the Provincial Government, and alter the convictions of the appellants from section 326/149 to section 302/149 of the P. P. C. Ordinarily I would have felt no compunction in sentencing each of the five appellants to death, but as the offence was committed about two years ago and the judgment of the learned trial Judge was announced about a year ago, I feel reluctant to exact the extreme penalty. In view of the fact that the Government appeal has been accepted, the petition for enhancement of sentence put in by Ghulam Rasul need not be dealt with because what Ghulam Rasul prayed for has been done by the acceptance of the Government appeal. But I cannot help remarking that the sentence of five `years' rigorous imprisonment, even if the offence amounted to nothing worse than one under section 326/149 of the P. P. C., was grossly inadequate. The maximum sentence for an offence under section 326 of the P. P. C. is transportation for life, and I cannot see that any case would justify the imposition of the maximum sentence if the present one in which two deaths resulted did not. It is, no doubt, the duty of Courts to see that the sentence is not excessive, but that does not mean that it should be so lenient as to compel the injured person to resort to violence in order to obtain the satisfaction which he expected from the sentence awarded by the Court to the wrongdoer. In view of the fact, however, that the Govern ment appeal has been accepted, no order need be passed on the petition for revision though I may add that if there were no Government appeal, I would have accepted the petition for revision and enhanced the sentence to transportation for life. The result, therefore, is that the conviction of the five appellants is altered from section 326/149 to section 302/149 of the P. P. C. and the sentence is enhanced to trans portation for life to each of the five appellants for that offence. The other conviction and sentence will remain, and both the sentences shall run con currently. KAIKAUS, J.‑

I agree. K. B. A./ A. H. Conviction altered.