P L D 1972 Lahore 19 (PLP)

On internal examination he found that the small intestines and aorta were cut. Fluid blood was present in the abdominal cavity and intestines were floating in it. Death, in the opinion of the doctor, had occurred due to shock, haemorrhage and cutting of abdominal aorta due to injury No. 1, which was sufficient to cause death in the ordinary course of nature.

9. At the trial, the prosecution case rested on the testimony of the three P. Ws. namely Ali Muhammad, Muhammad Shafi and Nur Bakhsh as also that of Fazal Khan P. W. 7 and Abdul Ghani P. W. 8, who were considered to be disinterested and independent witnesses of the occurrence and of course there were the recoveries of blood-stained clothes of the appellants and the weapons of offence which vide Chemical Examiner's report Exh. P. F. were all found to be stained with blood, whose origin could not be traced in respect of the hatchet' and stick due to disintegration, while it was found to be human blood in case of the other recoveries vide Serologist's report Exh. P. H. H.

10. Fazal Khan P. W. 7 had gone to grind his wheat at the grinding machine of Mistri Tufail about 25 karams from the place of occurrence while Abdul Ghani had gone there for getting his plough mended. All the prosecution witnesses appeared twice at the trials, before Mr. Ali Muhammad Akund in the first instance, who tried Ghulam Hussain, Ahmad Khan and Athar Khan, ad subsequently before Mr. Muhammad Saeed, who tried Abdul Razzaq, fully supported the prosecution version making consistent statements on both the occasions.

11. During inquiry the position taken up by Athar Khan appellant was more less one of denial simpliciter. HQ admitted that blood-stained shirt Exh. P. 15 and chadar Exh. P. 16 were got removed by the police on 15th January 1964, but denied the recovery of hatchet Exh. P.

10. Explaining the injuries on his person, he stated that at the relevant time he was ploughing hills No. 1 of square No. 87 adjacent to the house of the complainant-party when Ahmad Khan appellant brought a huqqa for him, and while he was smoking huqqa he was attacked by Muhammad Shafi, Ali Muhammad, Afzal, Barkat Ali, Nur Bakhsh and Hussain Bakhsh deceased who felt aggrieved because he had not allowed them to pass through his land. In self-defence, he gave blows to Ali Muhammad and Muhammad Shafi with a parani, Shafi P. W. gave him a hatchet blow on the head which rendered him unconscious. At the trial, he added nothing to the above explanation. Ahmad Khan appellant admitted that his blood-stained clothes Exhs. P. 12 and 14, were got removed by the police on 16-10-1964, denied the production of stick Exh. P. 9 and explaining the injuries on his person stated that he was attacked by the complainant-party alongwith Athar. He added that he was a lame person and could not walk without the help of a stick which was also carried away by the complainant-party during the attack. Ghulam Hussain admitted the removal from his person of his blood-stained shirt Exh P.

17. On 15th January 1964, denied the recovery of blood-stained knife Exh. P. 11 and stated that the complainant-party had a dispute with his nephew Athar Khan as they insisted on passing through his land which he would not permit and in order to put undue pressure on him they had made a false case against him. He added that there were no bloodstains on his shirt arid further that the P. Ws. were opposed to them on account of political rivalry in the B. D. Elections. Abdur Razzaq, who was tried subsequently, also denied the allegations and attri buted his false implication to Sub-Inspector Niazi. He took the plea that he was not known as Muhammad Razzaq but his name was Muhammad Raza. He produced his identi fication card Exh. P. D. H. pertaining to his military service. They produced no evidence in defence.

12. At both the trials, the prosecution case rested on the testimony of the same set of witnesses, i e. the three injured P. Ws. namely Ali Muhammad P. W. 3/12, Muhammad Shafi P. W. 5/13, and Nur Bakhsh P. W. 6/14 besides Fazal Khan P. W. 7/15 and Abdul Ghani P. W. 8/16. They fully supported the version as originally set out in the F. I. R. and notwithstanding the lapse of considerable time between the occurrence and the two trials held separately, no material discrepancy could be pointed out. In the case of Abdur Razzaq appellant in Criminal Appeal No. 153 of 1970, proceedings under section 87/88, Cr. P. C. had to be resorted to, to procure his arrest and he was declared a proclaimed offender, as deposed by Bashir Ahmad Sub-Inspector P. W. 17.

13. On behalf of the appellants, it was contended before us firstly, that there was no bad blood between the parties and as such it was a case of a sudden and unpremeditated free fight between the parties, secondly that in the circumstances of the case, the intention to cause death could not be reasonably spelt out and as such conviction under section 302, P. P. C. was wholly unwarranted. Thirdly that, at any rate, reasonable grounds did not exist to justify the invocation of section 34, p. P. C. and as such the appellant to whom the fatal injury was attributed should alone have been held responsible for causing the death of Hussain Bakhsh. Lastly, that the identity of Abdur Razzaq, appellant to whom the fatal knife injury of Hussain Bakhsh deceased was attributed was not established beyond doubt.

14. To start with, we have no hesitation in saying that the two parties had no previous background of bad-blood of a serious nature. There had never been any previous fight or litigation between them except the usual type of grudge that neighbouring land-owners would bear one against the other on account of damage to crops or passage through a field etc. In the instant case, what appears to have created a mis understanding between the parties was the coughing and hawking of the appellants party as they would pass in front of the haveli of the complainant-party. We have already referred to its peculiar significance in our rural society when at times even an innocent and natural coughing would be liable to be misunderstood as a deliberate and mischievous hawking amount ing to sort of challenge. However, in the instant case, on the previous evening Ali Muhammad complainant took exception to the coughing of Athar Khan appellant while the latter was passing in front of his house. This led to an altercation between the two who exchanged abuses when Athar Khan left with a threat to deal with them. We have every reason to believe that on the following morning when Muhammad Shafi was urinating at point No. 5 of killa No. l of square No. 87 shown in the site plan Exh. P. I. which, according to the statement of Ghulam Mustafa Patwari P. W. 11, belonged to Ghulam Rasul and Athar Khan appellant, the appellants feeling aggrieved by the previous incident attacked Muhammad Shafi presumably feeling justified in retaliating when the complain ant party took exception to their passage in front of their haveli. Obviously in this background alone, one would be rattier disinclined to spell out the motivation of murder on the part of the assailants. Apparently, all of them went fully armed. Ghulam Hussain and Razzaq, with knives, Athar with a hatchet and Ahmad Khan with a dang and chased Muhammad Shafi right up to a few karams from' the door of his baithak for which there was no warrant. The object obviously was to translate into action the threat held out by Athar Khan appellant to Ali Muhammad complainant on the previous evening. No doubt, as clearly indicated by the statements of the three injured P. Ws., supported by the testimony of two other eye-witnesses, namely, Fazal Khan P. W. 7/15, an altogether disinterested witness, and Abdul Ghani P. W. 8/16, who happened to be present at a short distance from the place of occurrence, further corroborated by the medical evidence, it were the appellants who had taken the initiative having come fully prepared to deal with or teach a lesson to the members of the complainant-party. In fact the version given by the P. Ws. is so consistent convincing and natural that there is hardly anything to cast doubt on its veracity much less to lend support to the position taken up by the appellants in defence, in their statements under section 342, Cr. P. C., namely that they had fought in self-defence. We have, therefore, no hesitation in coming to the conclusion that the appellants were the aggressors. Section 34, P. P. C. reads as follows:- "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

15. Having come to the conclusion that the parties had no background of serious enmity and except for the previous evening's altercation between Ali Muhammad (P. W.) and Athar Khan, appellant, over the hawking of the latter in front of the former's house, the community of intention on the part of the assailant to commit murder notwithstanding the possession and use of knife by two of them would be difficult to spell out particularly when from the part consistently attributed to Athar Khan, appellant, it is abundantly clear that he took meticulous care not to use the sharp side of the hatchet. In the background of the case found to be established, Athar Khan not only left with a threat on the previous evening but it was translated into action when on the following evening Muhammad Shad was assaulted by the appellant, who had come fully armed in a pre-planned manner. Thus the difficult ques tion that arises for consideration in the case i3 as to what was the precise extent of the community of intention between the appellants who did not only stop short at attacking Muhammad Shah, while he was urinating in their field but also chased him almost up to the door of his baithak when the fight took place. The question is a rather complicated one and cannot be easily and readily answered.

16. While considering the question of the applicability or otherwise of section 34, P. P. C. in the given circumstances of the case before them, their Lordships of the Supreme Court made certain observations in Mst. Hamida Bano v. Ashiq Hussain etc. (PLD1963SC109) which may be helpful for the determination of the point in issue. It was observed by Cornelius, C. J. that "a joint action by a number of persons was not necessarily an action performed with a common object. It may be performed on the spur of the moment as a reaction to some incident, and such a case would fall more correctly within the rule of con structive liability laid down in section 34, P. P. C. which is based on "common intention", a condition of mind which is more directly and proximately connected with the action then is the formation of a common object. The Judicial Committee of the Privy Council have held in the case of Mahboob Shah v. The King-Emperor (72 1 A 148) that proof of pre-concert is necessary In order to bring a criminal act performed by several persons within the submit of section 34, but in a later case Mamand v. The King-Emperor (AIR 1946 P C 45) it was clarified that the existence of such pre-concert could be established even by proof of acts performed by individuals after the completion of the main crime. Even regarding the case in the light of the requisite of pre -concert, there seems no doubt whatsoever that such a consensus can be achieved among the participants in the crime immedi ately before its execution, e.g. where the crime is excited by some action on the part of the person against whom it is committed. This is the aspect in which we would prefer to regard this case. On the evidence, it is established that Ashiq Hussain raised the preliminary shout, Inayat Shah caught the reins of the horse and then nine persons including Ashiq Hussain, Jiwan and Akbar Zaman joined in giving blows to the Thanedar who, being mounted on a horse, presented a clear target. An intention to kill can be directly inferred from the nature of the injuries caused, which led to his immediate death".

17. The scope and implication of section 34, P. P. C. were also considered in case Metho v. State (P L D 1963 Kar. 1). It was held by their Lordships of the Division Bench that a bare reading of section 34 of the Penal Code, 1860, made it clear that it was the furtherance of the common intention and not the common intention of all the persons that made each of them liable. Where, therefore, the common intention of M and A was to commit robbery but in the course of committing that criminal act, murder was committed by M, it was held that although the common intention of both M and A was to commit robbery the murder committed by M was in furtherance of common intention of committing robbery and, therefore, A along with M was equally liable for the murder committed by M.

18. In Nazir and others v. Emperor (49 Cr. L J 271) an Allahabad case learned Judges of the D. B. made some important observations which have a direct bearing on the case before us. In that case, the common intention of the accused was to abduct a woman and beat her husband with tabal and lathi so as to disable him from successfully obstructing the intended abduction, and the beating resulted in the death of the husband. After discussing consider able case-law and particularly the conflict of the views on the point it was held that the use of tabal and lathis as weapons of attack should impute the knowledge of the likelihood of the causing of injuries which may be simple, grievous or such as be sufficient in the ordinary course of nature to cause death. As the common intention of the accused extended to give a good beating to the husband without any clear conception of the precise nature of the injuries which would be caused, all the accused persons were liable for the offence under section 302, P. P. C. in view of the provisions of section 34,P. P. C. and it was not necessary that the common intention must have been to cause death or such other intention as is mentioned in section 300, P. P. C. Regarding the existence of common intention, relying on A I R 1945 P C 118, it was held that the common intention ought to be determined from such known facts and circumstances which existed before the commencement of the criminal act as the criminal act itself is committed in furtherance of that common intention. Precise observations of their Lordships of Privy Council relied upon in this Allahabad case read as follows:-- "Section 34 lays down a principle of joint liability in the doing of a criminal Act. The section does not say `the common intention of all' nor does it say" an intention common to all. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused lending to the doing of a criminal act in furtherance of such intention. To invoke the aid of section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all. If this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case." Yet another observation made by their Lordships of the Privy Council in 52 Cal. 197 and relied upon- in the Allahabad Judgment may be advantageously reproduced :- "Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, fur `that act' and `the act' in the latter part of the section must include the whole action covered by `a criminal act' in part I, because they refer to it. As observation quoted in the Allahabad case of "Nazir and others" from (14 Lah. 814) is also relevant and may be reproduced with advantage: "In the present instance, the common intention of the culprits was obviously to commit robbery and in furtherance of that intention different acts were committed by different persons. Sardara Singh had gone to fetch Kishan Singh for carrying out that common intention while Indar Singh shot down Kehr Singh in furtherance of the same. The decision to shoot Kehr Singh was taken by Indar Singh alone but there can be no doubt that it was taken in furtherance of the common intention. The object of Indar Singh apparently was to strike terror and disarm all opposition and in this he succeeded; for there was no attempt to offer any effective resistance to the robbers thereafter."

19. For the contrary view wherein a restricted interpretation was placed on section 34, P. P. C. by learned Judges of the Allahabad D. B. reference was made to A I R 1935 Lab. 97 ; 50 I C 337, 19 Madras 483 and 8 Rang. 603 (F. B.). In the first of these cases which is a Lahore authority, was held by their Lordships :- "In order to make a person constructively liable for murder under section 34, Penal Code, it must be proved that he had the intention of committing murder in common with the person or persons who actually committed it and who were his companions in the joint criminal act or enterprise." In 50 I C 337, it was observed:- "It is obvious that the mere fact a man may think a thing likely to happen is vastly different from his intending that that thing should happen. The latter ingredient is necessary under section 34, the former by itself is irrelevant to the section. It is only when a Court can with some judicial certitude hold that a particular accused must have pre-conceived or premediated the result which ensued, or acted in concert with others in order to bring about that result, that section 34 may be applied." In the Rangoon case (Full Bench), the relevant observation reflecting the majority view was as follows :- "The common intention referred to in section 34,

1. P. C. is an intention to commit the crime actually committed and each accused person can be convicted of that crime only if he has participated in that common intention." Reference was made to yet another Full Bench authority of 13 Rang.

210. The question for determination before their Lordships was as follows "When less than five people go out armed to commit robbery without any pre-arranged intention to commit murder, but in the course of the robbery one of the robbers liable to be convicted under section 302, read with section 34, 1, P. C. when there is no evidence to show that they committed any further act which would render them directly liable as abettors?" It appears that no direct answer to the above question was given, Page C. J. and Mya Bu, J. however approved the following observations made in A I R 1924 Cal. 257 : -- "A common intention to carry out an unlawful design at all costs, even at the cost of overcoming resistance, or evading capture by taking life, is sufficient. Without mincing matters the presumption of a common intention to add murder, if necessary, to robbery, is not easily avoided, when all, or some to the knowledge of the rest, of those engaged in the enterprise are proved to have carried fire-arms, and fire-arms have been used with fatal effect." In I L R 14 Luck. 328 the view taken was that the common intention referred to in section 34 was an intention to commit the crime, which vas actually committed. For this view reliance was placed on A I R 1935 Rang. 299 and I L R 8 Rang.

603. Reference was also made in this regard to the observations of Mahmood, J. in 1887 A W N 236 reproduced in the later part of this judgment.

21. Having considered the arguments for and against in the conflict of views referred to earlier their Lordships of the Allahabad High Court in the case 49 Cr. L J 271 subscribed to the first view and observed as follows :- "We have to see what was the common intention before a person has commenced the criminal Act. It may be that to determine such a common intention we may not have the direct evidence of what passed between them before the commen cement of the transaction and have to conclude that intention from their conduct. If so the conduct of all such persons has to be looked into. If the intention of the actual doer of the fatal act is to be determined from his conduct alone, the intention of the others will normally be gathered from their respective conduct and as they did not do the fatal act, their intentions will not ordinarily be determined to be the same as the intention of the actual doer of the fatal act. We have to determine the original common intention and then to see whether the actual doer of the fatal act acted in furtherance of that intention or acted quite suddenly and beyond the common intention. We have not to see the intention behind the commission of the fatal act only which alone is not the criminal act in view of what their Lordships of the Privy Council held in 52 Cal. 197 and surely the fatal act alone is not equivalent to the offence whose ingredients include the physical act, its consequence and the intention or knowledge with which the physical act was performed. In our opinion, section 34 refers to a physical act only. Of course the physical act contemplated should be criminal, that is, should be what is considered a crime, which is not defined in the Code and should mean a thing which ought not to be done and which affects the State in addition to the individual against whom the act in done."

22. In 47 Cr. L J 1006, it was observed by a Division Bench of the Sind Chief Court as follows:-- "It is only when it is a fair inference from the evidence that a particular accused must have intended the result which ensured, and acted in concert with others in bringing about the result, that the section may properly be applied. Where it is clear that the common intention of the party of the accused was not to cause the death of the deceased or even to cause grievous hurt to him and that the common intention did not extend further than causing hurt to the men of the complainant's party, the accused ought to be convicted under section 323, read with section 34 and not under section 304(1) read with section 34."

23. Their Lordships placed reliance on Mahboob Shah v. Emperor (AIR 1945 P C 118) I Weir 298; (I Weir 29) referred to earlier. Another authority considered was Queen-Empress v. Duma Baidya (19 Mad. 483) wherein it was observed as follows :- "Where three prisoners assaulted the deceased and gave him a beating, in the course of which one of the prisoners struck the deceased a blow with a bludgeon on the head, which resulted in death, it was held that in the absence of proof that the prisoners had the common intention to inflict injury likely to cause death, they could not be convicted of murder and that those who did not cause the fatal injury were guilty under section 323, P. P. C. In that case it was observed "There is nothing to show that there was a common intention on the part of all the three accused to inflict with injury as would cause death; and no such intention as regards the second and third accused can be gathered from the particular acts of violence proved against them which in no way contributed to the death of the deceased. Though the object of all was no doubt to give the deceased a beating, the second and third accused neither instigated nor participated in the fatal blow dealt by the first accused." Reference was also made in this case to Empress v. Dharam Rai (1887 A W N 236), while examining the comparative scope and implications of sections 34 and 148 Mahmood, J., observed as follows :- "This section was the subject of consideration impliedly in the case of Queen v. Gorachand Gopee. At p. 456 Sir Barnes Peacock clearly laid down the rule of law that mere presence of persons at the scene of an offence is not, ipso facto sufficient to render them liable to any rule such as section 34 enunciates, and that the furtherance of a common design was an essential condition before such a rule applied to the case of an individual person. `It was probably in consequence of this expression of view from such a high authority that the Legislature by section 1 of Act XXVII of 1870, repealed the original section 34; and in substituting another section therefore, inserted the important words `in furtherance of the common intention of all', as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if it were committed by him alone. This change in the law is very significant, and it indicates to my mind that the original section having been found to be somewhat imperfectly worded, these additional words were introduced to draw a clear distinction that unpremeditated acts done by a particular individual, and which go beyond the object and intention of the original offence, should not implicate persons who take no part in that particular act. We have the opinion of an American jurist on the point, whom Mr. Mayne, in his commentary on the I. P. C. quotes (Bishop section 439) where that learned author, laying down the rules, goes on to say:- But if the wrong done was a fresh and independent wrong, springing wholly from the mind of the doer, the other is not criminal therein, merely because when it was done he was intending to be a partaker with the doer in a different wrong. This seems to me to be the right interpretation of the words `in furtherance of the common intention of all' as they occur in section 34 of the P. P. C. There is another section in that Code which is somewhat similarly worded, and seems to turn upon the same principle, so far as this particular point is concerned. That section is 149, which, instead of using the words quoted above, uses the words `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'. It will be observed that while section 34 limits itself to the furtherance of the common intention, section 149 goes further, inasmuch as it renders, every member of an unlawful assembly guilty of the offence when it is likely that such an offence might be committed in prosecution of the common object. I have referred to this section to show that it is more strongly worded than section 34; and even upon this section a full Bench of the Calcutta High Court in Queen v. Sabed All held that any sudden and un-premediated act done by a member of an unlawful assembly would not render all the other members liable, therefore, unless it was shown that the assembly did understand and realise either that such offence would be committed or was likely to be necessary for the common object." In Fazzo Khan acrd others v. Jatto Khan and another (33 Cr. L J 92) Sir Gorge Clause Rankin, Kt. Chief Justice and Graham, J., held that :- "To attract the operation of section 34, Penal Code, and fix constructive guilt on each of the several accused under that section, there must be participation in action, with a common intention, although the different accused might have taken different parts; and unlike under section 149 before any of them can be convicted for an offence read with section 34, the Court must arrive at a finding as to which of the accused took what part, if any, in furtherance of the common intention. A conviction without such finding is illegal."

24. In re: Nachimuthu Goundan and others, a Division Bench of the Madras High Court took the view that the question as to the existence or otherwise of a common intention in the acts and circumstances of the case before them was whether "the words `finish him' uttered by one of the accused were indicative of the fact that he wanted to kill the constable and as it was only after his statement (that they will have to give a sound thrashing to the constable and even finish him) that all the accused did the acts which resulted in his death, the accused must be taken to have acted in pursuance of a common intention to kill and beat the constable in furtherance of that common intention and, therefore, section 34 could be availed of and all the accused were guilty of murder under section 302 read with section 34." Having considered the conflict of views in the authorities discussed above, we are more inclined to agree with the restricted interpretation of section 34, P. P. C. as placed in the latter authorities according to which the "Criminal act" referred to in the statutory provision is the act actually committed. It may be observed with the utmost respect that this view appears to us to be correctly reflecting the intention of the law-giver which becomes more clear when considered in juxta-position to the language employed in section 149, P. P. C. also dealing with the principle of constructive liability whose scope is comparatively wider as indicated by the use of the expression. "If an offence is committed or such as the members of that assembly knew to be likely to be committed in the prosecution of that object". This of course was the view taken by Mahmood, J. in Emperor v. Dharam Rai referred to earlier and we are in respectful agreement. In section 149, P. P. C. the mere likelihood of knowledge of the offence being committed in prosecution of the common object would justify the fixation of vicarious liability contrary to the actual commission of the act as envisaged by section 34, P. P. C.

25. As stated earlier in the instant case, we find no reason to come to the conclusion that all the appellants shared the intention to commit murder. Apart from want of any strong motive to justify such an intention there is a more significant fact which clearly negatives the sharing of a common intention by all the appellants to kill Hussain Bakhsh deceased. The P. W. have consistently deposed that Athar Khan appellant, who was armed with a hatchet, had opened the attack by hitting Muhammad Shafi P. W. in the first instance, showering more blows on him as he fell to the ground and then also hit Ali Mohd. Complainant. But as clearly stated by the P. Ws. he took meticulous care to use the blunt side on each occasion which would certainly detract from the intention to kill. Likewise we find that Ahmad Khan appellant was armed with a stick and dealt blows with it to Muhammad Shall, Nur Bakhsh and Ali Muhammad P. Ws. which were all simple in nature as such would detract from his intention to kill or the sharing on his part of such an intention. In the circumstances, we are inclined to think that there was no community of intention amongst the assailants to kill Hussain Bakhsh deceased for which Abdur Razzaq alone could be held responsible who dealt the fatal blow to him. But this does not mean that Athar Khan who used the blunt side of the hatchet and Ahmad Khan, who wielded a stick both having caused simple injuries to the P. Ws. did not at all share a common intention with the other co-accused who were not only armed with deadly weapons like knives who actually used them in the fight with serious consequences. Keeping in view the circumstances of the case and in particular the back ground of the previous evening's incident, the fact that all of them came fully armed mostly with deadly weapons to attack Muhammad Shafi P. W. and followed him up to the baithak of the deceased would clearly show that the common intention was not only confined to causing simple injuries but something beyond it. Having already excluded the sharing of the common intention to kill Hussain Bakhsh we are of the views that the community of intention extended to causing of grievous injuries to members of the complainant-party.

26. A two-fold contention was raised on behalf of Abdur Razzaq, firstly that his identity as one of the assailants was rather doubtful and secondly that, at any rate, his case fell within the mischief of section 304, Part fl, P. P. C. Having carefully considered the contentions we do not find much substance in them. 1n the first instance in this case of broad day-light occurrence, even if Abdur Razzaq was known by a different name as Muhammad Razzaq or Muhammad Raza, there could be hardly any doubt or dispute as to his precise identity as being one of the assailants. He has no denied his relationship with the other appellants or his place of residence. Bashir Ahmad Sub-Inspector P. W. 17 had initiated proceedings under section 87/88, Cr. P. C. against him and got him declared a proclaimed offender. None of the prosecution witnesses had expressed any doubt as to his correct identity. The Sub-Inspector stated in cross-examination that he was known as Razzaq alias Raza and that in proceedings under section 512, Cr. P. C. he (Sub-Inspector) had described him as Razzaq alias Raza. He denied the suggestion that he had been substituted for Razzaq, brother of Fazal P. W., the latter having agreed to appear as a prosecution witness on that condition. He further denied the suggestion that Razzaq had not absconded and was living in Chak No. 38/10-R. Even in his identity card, the place of residence of Razzaq is mentioned as 111/15-L and 38/10-R. The contention is, therefore, patently false and simply absurd.

27. As regards the precise nature of the offence committed by Abdur Razzaq we are clearly of the view that having dealt a blow with his knife in the abdomen of Hussain Bakhsh, the consequences of the likelihood of the blow to cause death were thus fully within his knowledge and as such the case fell within c the purview of clause: Thirdly of section 300, P. P. C. We would therefore, hold him guilty under section 302, P. P. C. and in view of the fact that several years have already elapsed since the occurrence took place, we would not enhance the sentence to that of death but would maintain that of transportation for life already awarded to him. The conviction and sentences of the other appellants under section 302/34, P. P. C. are not justified and are accordingly set aside.

28. Abdur Razzaq also gave a knife blow in the abdomen of Muhammad Shafi. The injury was dangerous to life with the result that as a precautionary measure his statement was recorded by Mr. Abdul Ahad, Magistrate P. W. 4 in the hospital to be used as a dying declaration in the event of his death. He was, therefore, guilty of an offence under section 307, P. P. C. and was rightly convicted. We would, therefore, maintain his conviction and sentence under section 307, P. P. C. but set aside those of the other appellants on this count.

29. Ghulam Hussain appellant gave a knife blow in the abdomen of Ali Muhammad P. W, which was declared grievous. Having already come to the conclusion that the community of intention between the appellants extended to the causing of grievous injuries, we would maintain the conviction and sentences of all under section 326/34, P. P. C. Athar Khan appellant used the blunt side of his hatchet, while Ahmad Khan used a stick, both having cause simple injuries. Having held them constructively liable under section 326/34, P. P. C. along with others, which is a more serious offence, we do not consider it necessary to maintain the convictions and sentences of all three of them under the lesser offence of section 323/34, P. P. C. and would rather set them aside. The sentences awarded to Abdul Razzaq appellant shall run concurrently.

30. The appeals are partly accepted to the extent indicated above. The revision petition for the enhancement of the sentences is dismissed. K. B. A. Appeals partly accepted.