P L D 1961 (W (PLP)

(2) A gunshot wound, 1 / 5" circular on the other side of the right leg, just at the level of upper border of tubercle of tib bies. This was the wound of entry. The pellet could not be felt superficially. There was swelling of the sides and back of the leg A pellet was removed from Anara's leg. The doctor made it into a sealed parcel and handed it over to the police. Doctor Ata Muhammad (P. W. 2), Radiologist X‑rayed the right leg of Anara P. W. on the 3rd of September 1959. The examination of the skiagram showed three pieces of pellets in the soft tissue of calf muscle. The pieces were of the same pellet and the size of the pellet was that of an S.G. cartridge.

10. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Akbar appellant stated before the committing Magistrate :‑ "I and Muhammad Nawaz, Ghulam Hasan (Husain) Mirasi, Mutalli, Khushi Khokhar, and Kalu Machhi were sitting under the shisham tree near the railway quarters of Railway Station Pakhowal. Mashooq Husain Mirasi had gone to purchase tickets, while Dosa Musalli had gone to prepare huqqa. The deceased and his party came from jungle side and started firing at us. We ran for our life. My servant Ghulam Husain had gun, and he started returning the fire in self‑defence. We pro duced defence in favour of this before the police as well as a detailed statement was also given by me. I am innocent. Except Nawaz accused none of the remaining accused were present at the time of the occurrence. They have been falsely implicated because they are related to me. Though the other party was aggressor, but one of them happened to die we have been challaned by the police." At the trial he submitted a written statement pleading self‑defence. Muhammad Nawaz appellant made the following statement at the trial : "Actually the occurrence took place as stated by my co -accused Muhammad Akbar in his statement in Court today and in the additional statement put in by him." The appellants produced Sahibzada Rauf All, Superintendent of Police (D. W. 1), M. Ghulam Ahmad, Advocate, Mandi Baha‑ud -Din (D. W. 2) and Siraj Din (D. W. 3), Moharrir Head Constahk Police Station Malakwal, in their defence.

11. It will be seen from the above statement of facts that there are two divergent versions in this case. The appellants admitted their presence but pleaded self defence. According to their one Ghulam Hussain Mirast used a shortgun to save himself and his companions. including the appellants.

12. For the sake of convenience. the prosecution , case may be divided into the following three episodes : (i) Allah Yar's visit to Malakwal ; (ii) Allah Yar's return to Pakhowal ; and (iii) the occurrence. We will consider the evidence of each episode seriatim.

13. Ghulam Ali owns land in Malakwal and village Sohna. He has two wives; one of them lives at Malakwal and the other at Sohna. Sher Khan P.W. is Ghulam Ali's son from his first wife. He stated at the trial : - About 8 months ago, Allah Yar deceased, Anara, Siddiq, Allah Bakhsh and Sada P. Ws. visited my father's house at Malakwal at chahhwela. They informed me that they had reached Malakwal by the train from Pakhowal a short while back. Allah Yard deceased inquired from me whether my father Ghulam Ali was there. I informed him that he was at Sohna and would be returning by the peshiwela train. I inquired from Allah Yar the object of his visit and lid replied that he wanted to purchase our horse from my father. Our horse might be worth Rs 1,

400. Allah Yar and his companions stayed with me till peshiwela and when it was train time they left for the railway station which would be about three killas from our house." Ghulam Haider (P. W. 20), a resident of village Harya, went to Malakwal oft the 1st of September 1959 in order to receive his peer: who was arriving at Malakwal by Chenab Express which reaches there at 10‑30 p.m. The witness travelled from Harya to Malakwal by the train which reaches Malakwal at 4 p.m. He met Anara and Siddiq P.Ws. as he detrained at Malakwal. Railway Station. Anara and Siddiq P.Ws. asked the witness if he had seen Ghulam Ali in the train, arid the latter replied in the negative. The evidence of this witness shows that Anara and Siddiq P. Ws. were at Malakwal till about 4 p.m. Bakhsha (P.W. 24), resident of Pind Makko, stated at the trial :‑ "Under the directions of Allah Yar deceased, I had gone to Pakhowal Railway Station to fetch back the mares on which Allah Yar and others were leaving Pind Makko for Pakhowal Failway Station. I reached Pakhowal Railway Station and Allah Yar deceased, Sada, Siddiq, Allah Bakhsh and Anara P.Ws. left for Malakwal by the 9 o'clock train and I returned with the mares to the village. This was about 83 months ago. Allah Yar when leaving for Malakwal had asked me to be wait ing for him and his party at Pakhowal Railway Station when they would be returning by the digarwela train. Accordingly I took back the mares to Pind Makko which would be about three miles from Pakhowal Railway Station. At digarwela, I and Natu again took the mares to Pakhowal Railway Station. When we left Pind Makko we saw the train from Malakwal on its way to Pakhowal. When we reached Pakhowal Railway Station we found Allah Yar deceased lying murdered near the railway quar ters and Anara P.W. with injuries on him. Siddiq, Sada and Allah Bakhsh P.Ws. were raising a hue and cry. Allah Bakhsh P.W. took one of the mares brought by us and left for Police Station Miani to lodge a report. Sada and Siddiq P.Ws. left on horseback for Pind Makko to inform the relatives of the deceased and the injured about the occurrence." Ghulam Haider and Sher Khan P. Ws. are disinterested persons. The evidence of these witnesses and the evidence of Bakhsha, Anara, Siddiq, Allah Bakhsh and Sada P. Ws. establishes the prosecution case that the deceased and the last‑named four wit nesses went to Matxkwal from where they returned to Pakhowal by 58‑Down train reaching Pakhowal at 4‑33 p.m. The learned Sessions Judge, who had the advantage of seeing the witnesses and watching their demeanour in the witness‑box, observed :‑ "I have, therefore, no hesitation in accepting this version of the prosecution that Allah Yar, deceased and his party compris ing P.'Ws. 27 to 30 had been to Malakwal that day and had returned to Pakhowal by 4‑33 p.m. train. Allah Yar was a man of substance and he would certainly have asked for the mounts to be waiting for him at Pakhowal, the distance of his village from Pakhowal being three miles. This too was natural that when the persons in charge of the mounts did not turn up after the party had waited for some time they would start on feet for their village, hoping to meet the mounts in the way." After considering the evidence on the record, we fully endorse .the above finding of the learned Sessions Judge.

14. The learned counsel for the appellants drew our attention to the evidence of Sahibzada Rauf Ali S. P. (D. W. 1), Muhammad Khan Patwari (P. W. 4) and Chaudhri Ghulam Murtaza, Magis trate (C. W. 1) and argued (1) that there is no chhapri with bushes big enough for the culprits to lie in ambush for the deceased and his party, and (2) that there is no such by‑path as is alleged to have. been taken by the deceased and his party on their way to the village. Sahibzada Rauf Ali D. W. stated : ‑ "I did not find any by‑path in the front of the railway quarters of Class IV railway servants of Pakhowal Railway Station. The place given out to be a bye-path was found overgrown with grass. The place designated as chhapri was not a chhapri and there was no water in it. It was just a flat depression which could contain rain water. I cannot, however, give the depth of . that depression. There were small bushes in that area which ' might be about two feet high. 1 do not suppose if anybody could be concealed in that depression." Muhammad Khan (P. W. 4), who is the Patwari in charge of the circle, stated that there is no mention of the by‑path in the revenue papers, though it is there at the spot and that the tracgs of the by‑path are not quite clear at some places. As regards the chhapri, the Patwari stated that there was no water in the chhapri at the material time. He, however, stated that the water collects in the chhapri during the rains. The learned counsel for the appellants argued at length that the appellants and their companions had to board 49‑Up train arriving at Pakhowal at 4‑49 p.m. and that they were waiting for the train under shisham trees, at a distance of six karams from the chhapri. According to the learned counsel, the prosecution version that the appellants .and their companions were lying in ambush for the deceased and his party is a mere concoction. The question whether the appellants were lying in wait for the deceased and his party in the chhapri will be considered by us while dealing with the origin of the light. Suffice it to say at this stage that the prosecution version that Allah Yar deceased was murdered and' Anara P. W. injured near the chhapri is true. On arriving at this conclusion, we have relied on the evidence of the eye‑witnesses and the fact that a '12 bore empty cartridge and a 303 empty shell were recovered from underneath a, tahli tree, seven karams away from the chhapri. A tahli is also called shisham. Presumably this is the shisham tree under which the appellants and their companions were sitting as stated by Muhammad Akbar appellant. Point No. I shown in the site plan . Exh. P. Q. is the place where Allah Yar's dead body was lying. It is only a few karams away from the chhapri. Whatever the origin of the occurrence, it cannot be denied that it took place in the vicinity of .the place described as chhapri in the site plan Exh. P. Q. After considering the relevant evidence we hold that the occurrence did in fact' take place at the spot alleged by the prosecution.

15. The most important question for determination is the origin of the occurrence. The prosecution case that the appellants were lying in ambushed in the bushes growing in the chhapri does not appear to be true for the following reasons. First, there is no evidence that the appellants or any other member of their party knew that the deceased had gone to Malakwal and would be returning by 5x‑Down train. Secondly, Muhammad Akbar appel lant had to catch 49‑UP train from Pakhowal for going to Mandi Baha.ud‑Din. Mr. Ghulam Ahmad, Advocate (D. W. 2) was representing Muhammad Akbar appellant and one Dosa of Pind Makko in a case under the Arms Act pending in the Court of the Resident Magistrate, Mandi Baha‑ud‑Din. According to the Advocate, the case was fixed for the 2nd of September 1959. In the beginning of September, Courts were observing summer hours. A perusal of the railway time table shows .that 49‑Up train was the most suitable train for Muhammad Akbar appellant to reach Mandi Baha‑ud‑Din in time for the above said case. There is old‑standing enmity between the parties. It is, therefore, under standable that Allah Yar deceased and Muhammad Akbar appel lant, the ring leaders of their respective parties, would always travel with a number of companions for their protection against an attack. This inference is supported by the fact that Allah Yar deceased went to Malakwal accompanied by no less than four other persons who had no personal reasons of their own to go to Malakwal, Muhammad Akbar appellant stated in paragraph 6 of his written statement that on reaching Pakhowal Railway Station they sat waiting for the train, under a shisham tree, near the railway quarters. It appears that they (appellants) saw Allah Yar and his party when they left the railway station for Pind Makko and decided to attack them. The prosecution version that Hamid Ali accused shouted : "Allah Yar will not be spared today" seems to be true. It was on this shout that the gunmen fired shots. Thus, the occurrence was the result of a chance encounter. The prosecution version that the appellants and those who have been acquitted were lying in ambush does not appear to be true. The appellants' version that they acted in self‑defence is also not true. It is not supported by any evidence. The defence failed to examine even Ghulam Hussain Mirasi who is alleged to have fired shots to save his companions including the appellants. Learn ed counsel relied on the evidence of M. Nur Hussain Station Master (P. W 7), Abdul Majid S. T. E. (P. W. 18) and Babar Khan Guard (P. W 26) and contended that there was cross‑firing between the parties. M. Nur Hussain flashed that telegram at 5‑40 p.m. which means the occurrence had taken place before 5‑40 p.m. The train (49 UP) arrived at 5‑49 p.m. Abdul Majid and Babar Khan P. Ws. came by this train. The question of their having seen the occurrence does not arise. The learned Sessions Judge has rightly refused to rely on their evidence. The situation of the injuries on the deceased and Anara P W also indicates that shots were fired at them while they were running away to save their lives.

16. We now proceed to consider the participation of the appellants in the occurrence Anara P. Ws. presence at the spot at the material time cannot be doubted as he received an injury in the occurrence. Moreover, his presence at the spot at the material time is admitted by the appellants. He described the occurrence in the following words : ‑ "We started for Pind Makko by the bye‑path which . passes in front of the railway quarters. Allah Yar deceased and I were ahead of the rest of the party. We were walking side by side and had reached the last quarter when from bushes and chhapri to the west of that by‑path, all the six accused present in Court, Muhammad Akbar. and Hamid armed with shotguns, Ikram Ullah with a rifle, and the other three viz. Muhammad, Nawaz Muhammad Amir and Akram with spears, rose out of those bushes Hamid challenged Allah Yar deceased that they were not going to allow him to escape alive. On hearing this challenge, Allah Yar deceased tried to run back but Hamid accused fired at him and Allah Yar fell down. Akbar accused then fired at me and I was hit in my right knee.' On receipt of this injury, as I was falling, I received further gunshot wound from shots fired by Akram and Hamid accused. On receipt of those shots, I fell down. The accused fired three or four further shots and then went away. in the direction of the jungle towards south‑west. When the accused had left, we found that Allah Yar had died. Shortly thereafter Bakhsha P. W. and Natu turned up at the place of occurrence with our mounts and Allah Bakhsh left for the police station to report the matter. Siddiq and Sada P. Ws. left thereafter for informing the relatives of Allah Yar deceased of the occurrence." The above statement of Anara P. W. is substantially corroborated by the evidence of Allah Bakhsh, Sada and Siddiq P. Ws. We have no doubt that these four witnesses were with the deceased at the material time.

17. As we have already stated, there is old enmity between the parties. The eyewitnesses of the occurrence not only belong to the party of the deceased but some of them had strained relations with the accused, as would appear from the following passage occurring in the judgment of the learned Sessions Judge: " The fact that the four eye‑witnesses are related or connected with the deceased is practically admitted by them. Allah Bakhsh (P. W. 27) is a melwer of the deceased and is otherwise too related to him by marriage. He figured as a co‑accused with the deceased in a murder case and a relative of his was murdered by a relative of the accused, and in retaliation a relative of the accused was murdered by the relative of this witness. Similarly, Anara (P. W. 28) was convicted of theft in which Amir accused appeared as a witness. His maternal‑uncle Gulla was a partisan of Allah Yar deceased and the witness was twice bound down along with the deceased and his party against the accused and their party." The facts mentioned in the passage reproduced above were not challenged before us at the Bar. In fact the above statement is based on the material elicited from the P.Ws. in their cross‑exami nation. We, therefore, hold that the eye‑witnesses are interested persons and their evidence requires independent corroboration re : the participation of each appellant in the occurrence under consideration.

18. We have already shown above that Muhammad Akbar and Muhammad Nawaz appellants admitted their presence. Muhammad Akbar appellant admitted his presence from the very beginning. Reference may usefully be made in this connection to his telegram Exh. P. R. printed at page 29 of the paper book. Muhammad Akbar appellant despatched this telegram in the presence of Muhammad Nawaz appellant. In fact both.of them were arrested together at the telegraph office when the telegram Exh. P. R. was being handed over at that office. Muhammad Nawaz appellant has consistently taken up the position that he was with Muhammad Akbar appellant at the spot at the time of the occurrence. Thus, the presence of the appellants at the spot at the material time cannot be denied. ,

19. We now proceed to consider the nature of the offence committed by Muhammad Akbar and Muhammad Sawaz appel lants. According to the eye‑witnesses, Muhammad Akbar appellant and Hamid Ali accused were armed with shotguns. lkram Ullah accused had a rifle, while Mumammad Akram, Muhammad Amir and Muhammad Nawaz were armed with spears. We have reproduc ed the relevant portion of Anara's statement describing the attack. His statement and the statements of the other eye‑witnesses show that Muhammad Akbar appellant and the culprits who were armed ,with firearms, i.e., Hamid Ali and Ikram Ullah, simultaneously fired shots at the deceased and his party. 'l he shot fired by Hamid Ali proved fatal while ‑one of the shots fired by Muhammad Akbar appellant hit Anara P. W. on the leg but did not prove fatal. We have already held that the occurrence was the result of a chance encounter. If three gunmen fire shots simultaneously at their enemy and one of the shots proves fatal, they would be guilty under section 302/34, P. P. C. even if there be no evidence of a pre -planned conspiracy to murder the victim. Common intention can be formed on the spur of the moment and can be inferred from the surrounding circumstances. In the present case the fact that Hamid Ali raised a shout and the gunmen fired shots simultaneously causing the death of Allah Yar shows that each one of them, who fired shots, shared the common intention of murdering Allah Yar and his companions.

20. We have carefully considered the case of Muhammad Nawaz appellant. According to the evidence of Anara P. W. and the other eye‑witnesses of the occurrence, he was armed with a spear but took no specific part in the occurrence. The mere fact that he was present at the spot at the material time is not sufficient to prove that he shared the intention of the gunmen to murder Allah Yar and the members of his party. It is an admitted fact that the licensed gun Exh. P. 9 was recovered from Muhammad Nawaz appellant. Mr. Muhammad Ashraf's evidence shows that some of the empty, cartridges recovered .from the spot had been fired from this gun. It appears that Muhammad Akbar appellant or Hamid Ali accused used this gun. If there were evidence teat Muhammad Nawaz had given it to Muhammad Akbar or Hamid Ali as the result of a conspiracy to murder Allah Yar, we would. have considered the question of abetment of murder. There is; however, no such evidence. It' was urged that he took no steps to prevent the culprit (whoever was holding his gun at the material time) from using it. In the face of evidence that he had an opportunity to do so, and that he deliberately failed, we might have drawn an inference against Muhammad Nawaz appellant. We have held that the occurrence was a chance encounter. It appears that the shots were fired immediately on Hamid Ali's shout. Thus, there was no time or opportunity for Muhammad Nawaz to prevent, the person concerned from using the gun. Mere presence of a person at the time of the commission of an offence by his consfiderates is in itself not sufficient to bring his case within section 34, P. P. C. unless the community of design is proved against him. See Basharat v. Emperor (A I R 1934 Lah. 813). In order to convict a particular accused constructively, under section 34, P. P. C., of an offence, say of murder, it is not necessary to find that he actually struck the fatal blow, or any blow, but there must be clear evidence of some action or conduct on his part to show that he shared in the common intention of committing the murder. See Abdul Qadir and others v. Emperor (A I R 1946 Cal. 452). The eye‑witnesses do not attribute any part, to Muhammad Nawaz appellant There is no evidence of a conspiracy or of a pre concerted attack. In the circumstances we accept the appeal of Muhammad Nawaz, set aside his convictions and sentences, decline to confirm his sentence of death, acquit him, and direct his immediate release.

21. Muhammad Akbar appellant is clearly guilty of an offence under section 302/34, P. P. C. He fired shots at the material time. In fact one of his shots hit Anara P. W: The learned counsel for the appellants argued that as the occurrence was the result of a chance encounter, section 34; P. P. C. would not apply. It is wrong to say that section 34, P, P. C. does not apply if the fight has begun suddenly. If there is proof that some of the persons taking part in the fight which has suddenly arisen committed an act indicating that their object was to commit that. offence, there is no bar to holding that they shared the common intention there and then. The fact that Muhammad Akbar appellant, Hamid Ali and Ikram Ullah accused fired shots at the deceased and his companions simultaneously from a short range leads to irresistible conclusion that they shared the common intention of murdering as many of their enemies as possible. No less than six *12 empty cartridges and two '303 cartridges were recovered from the spot. It shows that the appellant and the other two gunmen fired at least eight shots. The pellet recovered from Anara's leg was of an S. G. cartridge. That also indicates the intention to murder. We are satisfied that Muhammad Akbar fired a shot in furtherance of the common intention of his com panion who fired the fatal shot and whose identity has not been established beyond doubt.

22. After carefully considering the evidence and the other material on the record., we are satisfied that Muhammad Akbar appellant has been rightly convicted and sentenced on each count. We; therefore, dismiss his appeal and confirm the sentence of death imposed on him by the learned Sessions Judge.

23. In the result, the appeal of Muhammad Nawaz (Crimi nal Appeal No. 484 of 1960) is accepted in toto, while that of Muhammad Akbar (Criminal Appeal No. 483 of 1960) is dis missed in its entirety. K B. A. Appeal dismissed.