1975 P Cr (PLP)

6. I then come to the question as to which of the accused persons can be said safely to have taken part in the incident. The learned trial Judge acquitted two of the accused persons namely Dina and Ali Sher on the ground that no specific part have been attributed to them. As I have already shown, however, the attribution of specific parts can in any case not really be depended upon. These two persons denied their presence at the scene as also did Mohammad Ali whore however the learned Judge con victed. The manner in which lie distinguishes the case of Mohammad Ali from those whom he acquits is stated by him thus:‑ "Accused Muhammad Ali no doubt does not admit his presence at tire scene of offence, but his name also transpires in the F. I. R. recorded immediately after the incident viz., at 5 p.m. on the same date, when the incident took place at 4 p.m. According to this accused some: time before the incident, deceased Sabir Alt had given him knife blow for which he had filed a complaint. Thus he was also aggrieved person and admittedly had some grudge against the deceased. As already pointed out, it appears that the deceased was a sort of Dadagir in the Mohallah and all these accused persons had grudge against him and were aggrieved with him for causing injuries on one or the other of there. Thus they had the common motive either to wipe out the deceased, or at least to teach him the lesson not to trouble them in future." Now if the mention of the name of Mohammad Ali in the first information report was a sufficient distinguishing feature in the case then the name of Dina also transpires in the first information report. Admittedly against the acquitted accused persons the State has filed no appeal and although of course it is open to me to hold that despite that Dina was in fact present, though I cannot reverse his conviction, the fact of the State being content to accept this finding must have some weight. There is however against Dina nothing except the word of the witness and that as I have already said is not, in my view, sufficient to bring home to any individual accused liability for the present crime. In these circumstances, I do not think it will be safe to convict Mohammad Ali either.

7. Apart from Mohammad Ali the learned Judge has convicted four others namely Siraj, Ruknuddin, Iqbaluddin and Puna on the basis that upon the defence theory the presence of these four and the absconding accused Saeed is admitted. As I have already stated the plea of the right of private defence was not specifically taken by each of the appellants and cannot therefore be regarded as an admission. However, in the case of some of these four persons there are passages in their statements under section 342 which might be read as admission of their presence or at least of such a fact as would lend assurance to their implication by the ocular testimony. In regard to Puna out of these, however, I do Lot think that there is such admission as would justify his implication on the basis of an admission. In answer to the question as to why the prosecution witnesses had deposed against him he stated "because I have deposed against Achan in a 307 case, his relatives have implicated me in this case". Now it does not follow from this answer that he is a witness in the counter case; it is to be remembered that at the time of the incident there was another case under section 307 rending against the deceased and this answer may well mean only that be was a witness in that case and to draw an inference therefore from this that be had either admitted his presence in the present incident or at least such a fact as would tend to establish such a presence is I think entirely unjustified. I am of the view therefore that the conviction of Puna also cannot be sustained.

8. The cases of Ruknuddin, Iqbaluddin and Fatah Mohammad stand upon a somewhat different footing. In regard to the last mentioned it is not merely his statements under section 342 that his earlier, counter first information report which shows that he took part in an incident of a violent character to which the deceased was also concerned upon the dad of the incident. It is true of course that he does not admit that the incident took place in the house of the deceased and if this were all the: evidence against him then by itself it would not justify his conviction. But I am regarding this evidence not as evidence by itself proving his presence but as evidence lending such corroboration as I think is necessary to the evidence of the eye‑witnesses whom I otherwise believe. Ruknuddin and Iqbaluddin also state that they are witnesses in the counter case and therefore much the same reasoning applies to them also. I would therefore consider the participation of Ruknuddin, Iqbaluddin and Fateh Mohammad alias Siraj as established beyond reasonable doubt.

9. There then arises the question of what offence these persons can be said to be guilty. As part of this question the very first matter which needs consideration is whether section 149 of the Pakistan Penal Code can be invoked. The number of persons convicted would then be three and even if to them be added the name of Saeed the absconder that would make still the number of participants only four and section 149, P. P. C. can apply only when there are at least five persons to form an unlawful assembly the question whether when less than five persons are convicted any of them can be so convicted by reason of vicarious liability under section 149, P. P. C. has been considered in several cases most of them from the Indian jurisdiction, but before, I go on to consider these cases. I should like to examine the question on principle. The application of the section is dependent upon the existence of an unlawful assembly which is described in section 141 as an assembly of five or more persons the common object of which is one of several which are mentioned in that section. There is no reference in the section to the conviction of five or more persons. I think therefore that what the law requires is that the Courts be satisfied that five or more persons did actually take part and if such a finding can be reached then the fact merely that so many of them are being actually con victed does not, in my view, matter. If for example it were alleged in a particular case that a crowd as large as about 50 assembled together for an unlawful purpose and then committed a variety of offences but that only four of these persons could be identified and tried or convicted I can see no reason for thinking that the conviction of these four or even a smaller number would be illegal by reference to section 149, provided of course that the Court entertains no doubt whatever that at least five, identified or not, took part. The difficulty however arises in kinds of case where a certain named number of persons are implicated and the Court finds upon the evidence that it is not possible to convict more than four; would the conviction of these four then under section 149 be proper? The very fact that the persons who are alleged to have taken part are named and yet the presence of some of them not established would tend to throw a doubt upon whether there were in fact as many as five present. Nevertheless it might be a case of the Court holding that the persons whom it is acquitting are not established to be the persons who took part, and yet being satisfied that the actual number was five or more. On the other hand the finding could mean that out of a given number of persons alleged to be present the presence of some is doubtful and this would naturally mean that the presence of as many as five itself is doubtful. In most cases where persons are actually named and there is no question of mistaken identity or other unidentified persons also being present, I think the finding that some of hem are not established to be present must necessarily recoil on the probability of the number of persons also. If the number of convicted persons then is reduced to less than five, I think it would follow as an inference of fact that not as many as five persons were present and that therefore section 149 would not apply. But in all cases, I think it must remain eventually a question of fact and the essential thing is to remember that while acquitting some of the accused persons the Court must be able to reach a positive finding that there were still five persons present before it applies section 149; of course the two findings cannot be in any given case in consistent.

10. The cases which I have been able to find in which this question has been discussed have laid down the principle in different language and from some cases it might seem as if it is being held that if less than five persons are convicted section 149 cannot apply while the contrary is being held in other cases. On a close examination of these cases, I have come to the conclusion that regard being had to the facts involved in each of them there is no real discrepancy in principle which is as I have stated already. The first of these cases is Kapildo Singh v. The King. (A I R 1950 F C 80) where the conclusion was shortly put thus:‑ "In our opinion, the first contention is without substance. The essential question in a case under section 147 is whether there was an unlawful assembly as defined in section 141, Penal Code, of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused and, even when it is possible to convict less than five persons only, section 147 still applies if upon the evidence in the case the Court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more per sons, known or unknown, identified or unidentified, in the present case, there is such a finding and that concludes the matter." Similarly in Dalip Singh v. The State of Punjab (A I R 1953 S C 364), the Indian Supreme Court observed:- "

19. Before section 149 can be called in aid, the Court must find 'cortainly' that there were at least five persons sharing the common object. A finding that three of them 'may or may not have been there' betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction.

20. This is not to say that five persons must always be convicted before section 149 can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of section 149 would be good. But if that is the conclusion it behoves a Court, parti cularly in a murder case where sentence of transportation in no less than four cases have been enhanced to death, to say with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions." To the same effect are two other decisions of the Supreme Court of India namely the cases of Nar Singh v. The State of Uttar Pardesh (AIR 1954 S C 457), and Marchalil Pakku v. State of Madras (AIR 1954 S C 648). The question was also decided in a Division Bench case of the Lahore High Court, Juma v. The Crown (P L D 1954 Lah. 783) in which it was observed at page 795:‑ I am satisfied that six persons took part in the incident and, though three of the alleged culprits have been acquitted on account of in sufficiency of evidence against them, there is nothing to prevent the application of section 149, P. P. C. I am aware that some judicial decisions have laid down that unless the identity of five or more per sons were established section 149 could not be applied, but I must respectfully dissent from that view. Section 149 does not require that at least five participants must be convicted before that section can apply and that cannot be the law because the identity of some of the rioters may, in many cases, be in doubt." With this view I am in entire and respectful agreement.

11. The question was also touched upon by a judgment of our Supreme Court although the question was not before the Lordships in precisely the same fashion as it is before me today; in the case of Mohammad Shaft v. State (P L D 1967 S C 167), their Lordships observed at page 175:‑ The intention in using a firearm was clearly to cause death, and there fore, the two deaths which have been caused be rightly held to be the result of a joint attack by the four persons before us thus attracting the application of section 34, P. P. C, which has been employed. Yet it would have been simpler and in fact, not in any way in con travention of either fact or law, to hold that these four persons with others who had not been identified beyond doubt, carried out the attack in which case the liability would be extended to all of them under section 149, P. P. C." I think their Lordships are clearly implying that what is required by section 149 is the certainty that five persons took part and not the conviction of five persons.

12. Now applying these principles and having already come to the conclusion that of the persons charged in this case the only ones who can safely be said to have been established to be present are Ruknuddin, Iqbaluddin and Fateh Mohammad alias Siraj that amounts only to three persons and if to them is to added the name of the absconder then also there would be only four. In the circumstances of the present case I cannot but think that a doubt as to the presence of the remaining four who were implicated necessarily results in a doubt as to the actual number of persons present. I have therefore come to the conclusion that section 149 will not apply in the present case and also of course to the conclusion that the convictions under section 148, P. P. C. are not sustainable.

13. I now address myself then to the question as to what offences the persons present would be guilty of. For this purpose it is necessary first to consider what would be the offence committed by the person who caused the injuries to the deceased if he could be identified. Now the deceased when he was alive was found to have the following injuries:‑ (1) Incised wound left ear cutting into whole thickness of pinna extending 1' back over the mostodregion 1' x x ". (2) Compound fracture left arm. (3) Compound fracture left ankle. (4) Incised wound right leg 1' x ' x '. (5) Haemotoma right foot "2 x 2'. Of these injuries 2 and 3 were grievous in nature. The deceased was actually discharged from hospital on the 23rd Decem ber 1968 but was re‑admitted on the 26th and the cause of his death is given pulmonary embolism. A post‑mortem examination was carried out on his body after his death which occurred on 15th of January 1969 and no definite opinion could be given that it was the injuries which resulted in his death and indeed out of the injuries that I have mentioned none was in the opinion of the doctor sufficient individually or in combination of any other to cause death in the ordinary course of nature. In these circumstances, the learned trial Judge held, quite rightly I think, that the offence in regard to the deceased was not one of culpable homicide but one of grievous hurt. Since no weapon answering to the description mentioned in section 326, P. P. C. was alleged to be used in the causing of the injuries which are grievous the offence would therefore be under section 325 of the Pakistan Penal Code. So far as the injuries on Umed Ali and Nasim Fatima are concerned they are clearly grievous injuries and the crime which resulted in them is purely one punishable under section 325, P. P. C. equally clearly the liability in respect of Mst. Mukhtar Bano is one under section 323, Pakistan Penal Code.

14. I have already stated my reasons for being unable to rely upon tie witnesses for the purpose of determining the specific parts played by each of the culprits, and the three persons whom I have named as person whose presence I regard as established must therefore be convicted, if convicted at all, by reason of the application of section 34, Pakistan Penal Code. In the entire circumstances of the case, I entertain no doubt that the persons who entered the house of the deceased upon the day of incident were motivated by a common intention, and that common intention was certainly not the causing of any thing less than grievous hurt, regard being had to the nature of the weapon which they were carrying and also the injuries which they eventually inflicted. I do not think that it is legally not permissible to apply section 34 of Penal Code at this stage and in fact in the Lahore case to which I have earlier made reference namely the case of Juma v. The Crown (P L D 1954 Lah. 783) a little after the passage which I have quoted the learned Judges observed: "But even if it were held that the number of culprits were less than five I see no difficulty in applying section 34 of the P. P. C. to the case of Fazal Dad and Juma appellants." I think it would be right therefore to convict the appellants Ruknuddin, Iqbaluddin and Fateh Mohammad alias Siraj for three different offences under section 325 read with section 34, Pakistan Penal Code in respect of the injuries on the deceased, Umed Ali and Nasim Fatima and under section 323 read with section 34 of the Penal Code in respect of the injuries on Mukhtar Bano. These were in fact the sections under which the learned Judge convicted them, except of course that he had recourse to section 149, rather than to section 34 of the Penal Code. But while in the case of the offences committed in respect of Umed Ali and Nasim Fatima he sentenced them to three years' rigorous imprisonment each, in respect of the offence of hurt to the deceased he gave them a sentence of seven years' rigorous imprisonment. I think the distinction is illogical; either they were liable for culpable homicide in respect of the deceased in which case they should have been convicted under section 302, or section 304, Pakistan Penal Code or their sentence should have been assessed under section 325, on the base of grievous hurt. No doubt seven years' rigorous imrisonment is a sentence which can legally be given under section 325, P. P. C: but in respect of the same offence the learned Judge is awarding three years in respect of the two witnesses and the only distinction that I can see between the witnesses and the deceased is that the deceased in fact died. I would therefore give a uniform sentence of three years' rigorous imprisonment for the offences under section

325. I see no reason in this case to award a sentence of fine also as the learned Judge has done.

15. In the result, therefore, I allow the appeal of the appellants Muhammad Ali and Puna, set aside their convictions and sentences and acquit them; they shall be set at liberty forthwith unless required in some other case. In regard to the appellants, Iqbaluddin, Ruknuddin and Fateh Mohammad alias Siraj, I alter their conviction to three separate counts under section 325 read with section 34, Pakistan Penal Code and under section 323, read with section 34, Pakistan Penal Code; for the former three offences. I alter their sentence to three years' rigorous imprisonment each and for the offence under section 323, award them six months' rigorous imprisonment. The sentences will run concurrently. With that modification their appeal is dismissed. Order accordingly,