1969 P Cr (PLP)

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 11th December 1953, in Criminal Appeal No. 480 of 1953). Penal Code (XLV of 1860), Ss. 323, 324 & 326‑Five persons accused of offences under Ss. 302/149, 148 & 324‑Three accused acquitted and remaining two A and N found guilty under S. 302/34‑On appeal sentence of A confirmed by High Court but conviction of N (for causing simple injuries) altered to one under S. 326/34‑Out of five accused three having been acquitted, principle of vicarious liability under S. 149, P. P. C. could not be invoked and N having been found not to have acted in concert with A in furtherance of common intention, conviction of N under S. 326/34, P. P. C. on mere ground that since he knew that his companion A was armed with spear he should have known that there was probability of causing grievous hurt, held, unjustified‑Conviction of N altered by Supreme Court to one under S. 324/34, P. P. C. M. Siddique, Attorney Federal Court for Appellant. A. R. Changez, Advocate‑General Punjab (C. M. Sharif, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for the Crown. Date of hearing : 4th October 1954. MUHAMMAD SHARIF, J.‑Five persons, i.e. Ali Nawaz, Nur Muhammad, Islamuddin, Rustam and Maula Bakhsh were tried under sections 302/149, 148 and 324, P. P. C. for the murder of one Muhammad Jaisak and for having caused injuries to Muhammad Khokhar on the 16th March 1952. Islamuddin, Rustam and Maula Bakhsh were given the benefit of doubt and acquitted. Ali Nawaz and Nur Muhammad were found guilty under section 302 read with section 34, P. P. C. Ali Nawaz was sentenced to death and Nur Muhammad was awarded the lesser punishment of transportation for life. Both the convicts appealed to the High Court of Judicature at Lahore. The sentence of death upon Ali Nawaz was confirmed but in the case of Nur Muhammad the conviction was altered to one under section 326, P. P. C. read with section 34, P. P. C. and the sentence was accordingly reduced to five years' rigorous imprisonment. Nur Muhammad has now put in a petition for special leave to appeal which was admitted with a view to test the legality of the conviction under section 326 read with section 34, P. P. C. The learned Judges of the High Court in disposing of the appeal observed "Judging from the nature of injuries on the person of Muhammad Jaisak, deceased, the intention of Ali Nawaz can be none other than to cause the death of his victim. There are no extenuating circumstances. We, therefore, uphold the conviction and sentence of Ali Nawaz. The sentence of death passed upon him is confirmed. So far as Nur Muhammad is concerned, it cannot be said that he knew that death would be caused. One of the co‑accused, Maula Bakhsh, who was said to be armed with a gun, did not use it, and if his intention was to kill Muhammad Jaisak, the easiest thing for him would have been to use his fire‑arm. Thus it is established that it was not intended that death should be caused; but all the same Nur Muhammad should have realized that his companions being armed with deadly weapons, there was a probability of grievous hurt being caused by their use. We, therefore, alter the conviction of Nur Muhammad to one under section 326 read with section 34, P. P. C. and reduce his sentence to one of five years' rigorous imprisonment". It will be seen from the above that Ali Nawaz was convicted of murder for the simple reason that he alone had caused injuries which resulted in death and his intention could be none other than to cause death. The petitioner Nur Muhammad was acquitted of the charge of murder as there was no common intention to cause death. The ground of conviction of Nur Muhammad under section 326, P. P. C. was said to be that since Ali Nawaz was armed with spear, he should have known that there was the probability of causing grievous hurt. The expression "there was a probability of grievous hurt being caused", could with a little substitution for the word `likely' be borrowed from the phraseology of section 149, P. P. C. which dealt with the liability of members of unlawful assembly for the offence committed (a) in prosecution of the common object of that assembly or (b) such as the members of that assembly knew to be likely to be committed in prosecution of that object. It has not been found that the petitioner was a member of an unlawful assembly, the common object of which was to cause grievous hurt to any person. Three of the accused originally tried, as mentioned above, were acquitted and only two were left behind and there could not, in the circumstances of the case, arise any question of liability under section 149, P. P. C. It has nowhere been found that the number of the assailants was five or more even after giving the benefit of doubt to three of the accused. Ali Nawaz and Nur Muhammad petitioners could be liable for what was done by one or the other if they had been acting in concert and in furtherance of their common intention. This, however, could not go beyond the result produced. The other section under which vicarious liability could ensue, is section 149 and as pointed out above, there is no finding that the common object was to cause grievous injury. Barring the fatal injuries to Muhammad Jaisak, for which Ali Nawaz alone was held responsible, the other injuries on his person or on that of Muhammad Khokhar were of simple nature caused by incised or blunt weapon. Nur Muhammad could, therefore, be punished only for the offence which was actually committed and not for the one which might have been committed. This falls under section 324 and section 323, P. P. C. The conviction under section 326 was unjustified. The appeal is consequently accepted to this extent that the conviction of Nur Muhammad is registered under section 324/34, P. P. C. and the maximum sentence that can be imposed cannot exceed three years rigorous imprisonment and this we award to Nur Muhammad. Appeal partly accepted.