P L D 1963 (W (PLP)

(1) A lacerated wound on the top of the head, " x ", scalp deep. (2) An incised wound upper right back, 1" x ". (3) An incised wound left upper border of the shoulder, 1" x " x 1 " deep.

8. Doctor Iqbal Ahmad Mirza, Medical Officer, Hazro, on the 21st of May 1961, at 7‑30 p.m. examined Mir Afsar (P. W. 10); and found the following injuries on his person :‑ (1) A bruised area, " x ", on the outer side of the upper part of the left arm and was obliquely directed. (2) An incised wound, " x 1/6", skin deep, on the outer side of the left arm, 4" below injury No. 1. (3) An oblique bruise, 1 " x ", on the upper part of the left side of the chest, " away from the outer edge of the shoulder bone. Yusaf appellant was also examined by the same doctor at 10‑35 p.m., and found to have the following injuries:‑ (1) A vertical contused wound, " x 1/8", into skin deep on the centre of the back of the right hand. (2) A contused wound, " x 1/6", into skin deep on the back of the right hand, " inner to injury No. 1. (3) A contused wound, " x 1/8", into skin deep on the back of the right hand, I" outer to injury No. 1. (4) An abrasion, " x ", on the back of the right hand, inner to injury No. 2. (5) An abrasion, " x ", on the outer side of the lower one third part of the right forearm, 1 " above the wrist joint. (6) An abrasion, " x 1/6", on the back of the left ring finger of the hand. All the injuries were simple and caused by a blunt weapon.

9. Mir Afsar (P. W. 10), his son Muhammad Khan (P. W. 12), Ahmad Khan (P. W. 11) and Sher Afar (P. W. 13) gave ocular account of the occurrence. They substantially supported the prosecution story as narrated above. Ahmad Khan (P.W.11) admitted in cross‑examination that his father was a hot‑tempered man. He also admitted that Sher Afsar (P. W. 13) was his real maternal uncle. He also admitted that Aslam, son of Karam Khan, was his father's sister's son, and Sher Afsar P. W. was married to the sister of the said Aslam. It is also admitted by him that Mir Afsar (P. W. 10) was friend of the deceased, so much so that he had brought his wheat crop which was being thrashed at the threshing‑floor of the deceased, and the deceased and his son Ahmad Khan were helping him in thrashing the wheat. Mir Afsar (P. W. 10) admitted that Ajun was his son‑in‑law, and that Ajun and Yusaf accused were joint owners of chahi land, and there was dispute over the quantum of the share of water rights, Ajun claiming 11th share, though he had purchased land to the extent of 3/32 share. It is thus clear that the prosecution evidence is of partisan character.

10. All the accused pleaded not guilty. Hasham stated that he was in Karachi, and had been falsely implicated Yusaf appel lant, when asked to explain his injuries, stated as follows :‑ On the day of the alleged occurrence Mir Afsar P. W. was goading his team of bullocks in khalwara of Waris deceased. The animals trespassed into my khalwara. While returning from khalwara his phala carried away some of my wheat crop to which I objected. This gave rise to an altercation between us. Since I had strained relations with Mir Afsar, we fell out and grappled with each other. Mir Afsar assaulted me with his chuka. I returned the blow with my chuka. Seeing this Waris deceased then appeared on the scene. He did so along with his son Ahmad Khan P. W. The deceased and his son Ahmad were armed with pitch‑forks and they attacked me, causing me injuries, in course of the scuffle that ensued. This gave rise to a general fight between us. Muhammad Sadiq, Muhammad Khan and Sher Afsar P. Ws. were not present there. Waris deceased, Mir Afsar and Ahmad Khan P. Ws. were, however, present. Other persons were also present there. Ahmad Khan, son of Ibrahim, Ghulam Rasul and others participated in the fight from our side. Nawab appellant did not admit his participation in the fight, and stated as under :‑ "The fact of the matter is that my father was injured during the fight. I attended him to give him bodily support, in the course of which my clothes shirt P. 2 and salwar P. 3 got stained with the blood of my father."

11. The learned Sessions Judge thought the case against Hasham to be doubtful, and extending him the benefit of doubt, acquitted him. While discussing the case of the appellants, the learned Sessions Judge remarked, "there is no positive proof of premeditation on the part of these accused. The assault on the deceased and his party has not been proved to be a pre planned affair." But without giving any reason, the learned Sessions Judge proceeded to observe :‑ "The conduct of the two accused nevertheless comes within the mischief of section 304 (1)/34 of the P. P. C." and convicted and sentenced the two appellants as already indicated.

12. Khan Abdul Qayum Khan, learned counsel for the appel lants, made the following submissions :‑ (1) That the provisions of section 34, P. P. C. could not be pressed into service, in particular when the learned Sessions Judge had recorded a categorical finding that there was no pre arranged plan, and that in the circumstances of the case each accused would be responsible for the individual act. (2) That the prosecution version of the occurrence did not ring true, and that the defence version was more plausible, and since the prosecution witnesses were of partisan character and had been disbelieved in regard to complicity of Hasham, the learned Sessions Judge was wrong in rejecting the defence version. (3) That it was the complainant party who was the aggressor and set the ball rolling.

13. We first address ourselves to the question whether on the facts and circumstances of the instant case the provisions of section 34 could be invoked ? On a careful review of the evidence, we have formed the opinion that the prosecution version of the occurrence does not appear to be true, and that the defence version of the occurrence appears to be more plausible. It is in evidence that the nearest distance between the two khalwaras was about one step. It appears that while thrashing the wheat the complai nant party were urging the team of oxen to run fast, and the pair of oxen of Waris deceased trespassed into the khalwara of the appellants and perhaps carried away some of the wheat crop which led to altercation and a fight between the parties, and in the circumstances of the case the provisions of section 34, P. P. C. are not attracted. It is well settled proposition of law that in invoking the provisions of section 34 a furtherance of a common intention is a condition precedent for convicting each of the persons who take part in the commission of a crime, and the mere fact that several persons took part in a crime in the absence of a common intention is not sufficient to convict them of that crime. It is not sufficient for joint responsibility for an offence under this section that the offence actually committed was likely to occur as a result of the several persons acting together ; but that the existence of a common intention being the sole test of joint responsibility it must be proved what the common intention was and that the common act for which the accused were to be made responsible was acted upon in furtherance of that common inten tion. It is also well settled proposition of law that the presump tion of constructive intention must not be readily applied or pushed too far. We are aware that a pre‑concert in the sense of a distinct previous plan is not necessary to be proved, and that common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. In the present case we do not find any circumstances which would warrant the conclusion that a common intention developed at the spur of the moment, in that none of the eye‑witnesses even tried to suggest that any one of the appellant's exhorted the other co‑accused to open attack on the complainant party. In such a situation vicarious liability under section 34, P. P. C. was not attracted.

14. Having held that the fight was sudden and section 31 was not attracted, and that the defence plea appears to be more' B plausible, it remains to decide as to what offences were committed by each of the appellants. This question, in our view, does not present much difficulty. Nawab appellant is unanimously stated to have caused the fatal injury to Waris deceased. We think his case falls under Exception 4 to section 300, P. P. C., and as such he has been rightly convicted of offence under section 304(1), P. P. C. In view of explanation to Exception 4 it is immaterial in such cases which party offered the provocation or committed the first assault. As regards the sentence, we think, seven years' R. I. would meet the ends of justice. We accordingly, while main taining the conviction of Nawab appellant under section 304(I), reduce the sentence to seven years' R.

1. He is also liable for offences under section 324, P. P. C. on two counts for causing injuries to Ahmad Khan and Mir Afsar P. Ws. His convictions and sentences under section 324, P. P. C. on both the counts are, therefore, maintained. Both the sentences are to run con currently.

15. As regards Yusaf appellant, he is alleged to have given blows with chhik danda to Waris deceased, and Ahmad Khan and Mir Afsar P. Ws. He is, therefore, guilty of offence under section 323, P. P. C. on three counts. We accordingly alter his convictions from 304(1)/34 and 324/34, P. P. C. (two counts) to section 323, P. P. C. on three counts, and sentence him to the period of imprisonment already undergone under each count, with the direction that the sentences should run concurrently.

16. To this extent the appeal of Nawab and Yusaf appellants is accepted. The State appeal and the revision petition filed by Ahmad Khan automatically fail, and are hereby dismissed. K. B. A. Appeal partly accepted.