P L D 1954 Lahore 382 (PLP)

SOOFI, J.‑This is an appeal by Sana Ullah, aged 20, Ata Ullah, aged 30, and Abdul Quddus, aged 25, who are brothers among themselves, and their relative, Muhammad Sadiq, aged 16, from the order of the Sessions Judge, Shahpur at Sargodha, by which he convicted them under section 302 read with section 34 P. P. C. and sentenced each one of them to transportation for life. The prosecution story, as given by Rahim Bakhsh (P. W. 3), the principal eye=witness, is as follows: Rahim Bakhsh was sitting in the courtyard of his house. Shari‑' deceased was watering his cattle at a neighbouring hand‑pump. Abdullah P. W. was sitting in the courtyard of his house, which is nearby. Sana Ullah appellant went to the house of Ibrahim P. W. and started abusing his sister, Mst. Sharifan P. W., for wrongfully retaining his goat, Mst. Rahmat Bibi, mother of Mst. Sharifan P. W., abused Sana Ullah in return. Muhammad Sharif deceased, who had also come up, also abused Sana Ullah. Muhammad Sharif was the maternal uncle of Mst. Sharifan and Rahim Bakhsh P. Ws. Sana Ullah shouted for help. His brothers, Abdul Quddus and Ata Ullah and his relative Muhammad Sadiq appellants came up from a distance of 125 to 150 karams where their houses were situated. Ata Ullah was armed with a takwa, while Muhammad Sadiq and Abdul Quddus were armed with lathis. Sana Ullah had a lathi. Muhammad Sharif was attacked by the appellants near the house of Ibrahim P. W. Ata Ullah opened the attack by striking the takwa with its blunt side on the head of Muhammad Sharif deceased. The latter gave a blow with a danda (small stick) on the head of Ata Ullah. Ata Ullah gave him another blow on the head with the blunt side of the takwa. Muhammad Sharif fell down on the ground. Muhammad Sadiq, Sana Ullah and Abdul Quddus appellants inflicted injuries on Muhammad Sharif with their lathis. Rahim Bakhsh P. W. tried to intervene. The appellants advanced towards him. He gave a blow with his stick to Sana Ullah appellant. Ata Ullah appellant hit him (Rahim Bakhsh) with the blunt side of the takwa. Rahim Bakhsh sat down on the ground, Sana Ullah, Abdul Quddus and Muhammad Sadiq beat him with lathis. Abdullah P. W. inflicted injuries to the appellants in self‑defence. Ismail, Buta and Ibrahim witnessed the occurrence. Muhammad Sharif did not gain consciousness. Nazir Ahmad Lambardar arrived at the scene of the occurrence. The appellants retired in the direction of their house. Muhammad Sharif died at midnight. The first information report in the case was given by Nazir Ahmad Lambardar at Gunjial Police Station on the following morning (8th August 1953) at 5‑30 a.m. In the first information report there was no mention of the presence of takwa with Ata Ullah, who like the other accused was stated to have a stick with him. In the first information report it was mentioned that the relations between Nazir Ahmad Lambardar and the appellants were strained, because lot No. 6, which was previously cultivated by the appellants on account of its having been allotted to their maternal uncle Waryam Din, was re-allotted in the name of his (the Lambardar's) brother Muhammad Rafiq and the possession had been changed. The Lambardar is married to a sister of Ibrahim (P. W. 7) and Mst. Sharifan. Dr. Muhammad Sharif (P. W. 1), who conducted the post-mortem examination on the body of Muhammad Sharif deceased, noticed the following injuries on his person :‑ (1) Lacerated wound, 5" x " bone deep, on the top of the left side of the head. (2) Lacerated wound " x " x bone deep, just in front of injury No. 1. (3) Lacerated wound, 1 " x " x bone deep, on the back of the head, 4" from the left ear. (4) Lacerated wound, 1" x " x bone deep, on the right side of the back of the head, 5" above the right ear. (5) Contusion, 3" x 1", on the top of the left eyebrow. (6) Contusion, 6" x 2", on the lower part of the left side of the chest at the level of the 8th rib. On dissection a big haematoma was found present under the scalp extending from the back to the front of the forehead. Under injury No. 1 there were four pieces of the skull bone varying from 3 " x 3" to 2" x 1" in size. The bone had been depressed. Under injury No. 2, there were three places varying from 3" x 2" to 1" x " in size. They were depressed below. There was no fracture under injuries Nos. 3 and

4. The brain was lacerated under injuries Nos. 1 and

2. The base of the skull was fractured by injury No.

1. The 6th, 7th and 8th left ribs were fractured under injury No.

6. The pleura was lacerated under the contusion. The left lung was lacerated. 12 ounces of unclotted blood was found in the left pleural wiry. Injuries Nos. 1 and 2 were individually fatal. The doctor noticed five blunt‑weapon injuries on the person of Rahim Bukhsh (P. W. 3), two of which were 1:acerated wounds on the head and three were contusions on he right arm, the right knee and the left ankle. The injury on the ankle turned out to be grievous due to the fracture of the lower and of the left tibia bone. On the person of Abdullah (P. W. 4), who is the cousin of the deceased, the doctor noticed a contusion, 4" x 1", on the outer side of the back of the left shoulder, It was a blunt- weapon injury. Dr. Zafar Masood (P. W. 2) found two contusions on the right thumb and the right lower leg on the person of Muhammad Sadiq appellant besides an abrasion on his right shoulder. The doctor examined the persons of Ata Ullah and Sana Ullah appellants and found two contusions on the right elbow and the right back, of the former, and two contusions on the left shoulder and the chest and an abrasion on the left upper arm, of the latter. All the injuries were simple and accused by blunt weapon. Sana Ullah, Ata Ullah and Muhammad Sadiq appellants stated before the committing Magistrate that they had been falsely charged because of their enmity with Nazir Ahmad Lambardar. Muhammad Sadiq stated that he was charged because he was a relative of the co‑accused. Muhammad Siddiq in his statement before the committing Magistrate said that he was not present at the spot on the day of the occurrence because he generally lived at Lyallpur, while in his statement before the Sessions judge he stated that he got injured in his attempt to separate the parties. Sana Ullah in his statement before the Sessions Judge stated that after sunset he found his goat tied inside the house of Mst. Sharifan. He went there and saw Muhammad Sharif deceased, Abdullah, Rahim Bakhsh, Ibrahim, Muhammad Buta and Ismail. He asked them why they had tied his goat there, on which they started abusing him. He returned the abuse. Rahim Bakhsh and Ibrahim P. Ws. attacked him with lathis. Abdullah, Muhammad Sharif, Ismail and Muhammad Buta followed suit. He started running and raised an alarm. While he was running, he was empty‑handed. Ata Ullah and Muhammad Sadiq appellants and Noor Muhammad and Haq Nawaz came up. Muhammad Siddiq was empty‑handed. The others had sticks. He took the stick from Ata Ullah and inflicted injuries on Abdullah and Rahim Bakhsh P. Ws., while Haq Nawaz inflicted injuries on Muhammad Sharif deceased. Ata Ullah stated that he was attacked by the other party when he reached the spot on hearing the alarm. In those days he used to walk with the help of a stick. The stick was taken from him by Sana Ullah and was used in self-defence. He sustained injuries while separating the parties. Abdul Quddus stated that lot No. 6 was never allotted to Waryam Din but it was allotted to Muhammad Rafiq and there was no dispute about its possession. No evidence was laid by the appellant in their defence. The prosecution story was supported by Rahim Bakhsh (P. W. 3) and Abdullah (P. W. 4), both of whom bore marks of injuries on their persons and also by Ismail (P. W. 5), Buta (P. W. 6) and Ibrahim (P. W. 6). Mst. Rahmat Bibi (P. W. 9) was tendered for cross‑examination. Mst. Sharifan, a girl of 12 or 13 years, was examined as P. W.

8. She narrated the earlier incident, but as regards the actual occurrence she said that she and her mother Mst. Rahmat Bibi did not see it as they entered the room of their house and changed the door from inside. The eyewitnesses are closely related to one another and also Nazir Lambardar who gave the first information report, but that fact alone would not make their statements unworthy of credit. The presence of the witnesses at the scene of the occurrence is natural because some of them live in the same house and some in the near vicinity. Their presence is even admitted by the accused. Rahim Bakhsh and Abdullah bore marks of injuries on their persons which is a further proof of their presence at the time of the occurrence. The prosecution witnesses have explained the injuries on the persons of Sana Ullah, Ata Ullah and Sadiq appellants. It is the consistent story of the prosecution that the deceased used a danda in his self‑defence. Rahim Bakhsh and Abdullah also used sticks in exercise of the right of private defence. It may be remembered that the injuries on the persons of Rahim Bakhsh and Abdullah P. Ws. and Sana Ullah, Ata Ullah and Sadiq appellants were simple in nature and minor in character. The injuries on the person of Sharif, as noticed above, were six in number. The first five were in the region of the head. while the 6th was on the rib and had caused a fracture of the 6th, 7th and 8th ribs of the left side of the chest. The injuries Nos. 1 and 2 were individually fatal. We are unable to accept the argument advanced by the learned counsel for the appellants that the aggressor party was that of the deceased. If Sana Ullah shouted for help, it would not necessarily follow that he had been attacked. There was admittedly exchange of abusive language between him and Muhammad Sharif deceased at the house of the latter. The goat for whose recovery he had gone to the house of the deceased was still there and he had not yet succeeded in getting it released. Naturally, he needed some more persons of his party to come as reinforcement. The question whether section 34 P. P. C. inapplicable to the facts of this case is of some importance and has eugaged our attention. Section 84 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." In Mahbub Shah v. Emperor (A I R 1945 P, C. 118.) it was held that common intention within the meaning of section 34 implies a pre arranged plan. To convict the accused of an offence applying section 34 it should be proved that the criminal act was done in concert pursuant to the pre‑arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case, Care must be taken not to confuse 'same or similar intention' with `common intention' the partition which delivers "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and it overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in section 34 should never be reached unless it is necessary inference deducible from the circum stances of the case. Their Lordships distinguished the case of Mahbub Shah from that of Wall Shah absconder, both of whom had turned up armed with guns to rescue Ghulam Qasim Shah from the opposite party. They simultaneously fired their guns and tilt two members of the opposite‑party. The one hit by the fire of Wali Shah succumbed to his injuries. Their Lordships, on the facts of the case, came to the conclusion that it could not be held that Wali Shah and Mahbub Shah shared the common intention to kill Allah Dad. This authority was considered by the Madras High Court in The Public Prosecutor v. Chitikina Subbamma (ILR 1947 Mad. 224‑‑‑PLD 1953 FC 145.) and it was distinguished on facts. Whereas in Mahbub Shah's case there was no proof that the criminal act was done in concert by all the accused pursuant to any pre‑arranged plan, in Chitikina Subbamma's case it was established as a fact that the accused had been seen sitting in ambush about an hour before the murder, and there was no difficulty in inferring that the accused entered into a pre‑arranged plan to kill the deceased. The decision of the Privy Council in Mahbub Shah's case was considered at some length by a Division Bench of the Madras High Court in re Nachimuthu Goundan and it was held that their Lordships did not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with, nor did they say that the intention could not be inferred from the conduct of the assailants. The decision in Mahbub Shah's case came up for considera tion before the Federal Court in Criminal Appeal No. 4 of 1952 Sardar Ali and Abdul Sattar v. The Crown. It was remarked by the Honourable Judges of the Federal Court :‑‑ "It seems unfortunate that the agreement presented before the Judicial Committee on behalf of the Crown viz., that immediately before the firing of the shots, Mahbub Shah and Wali Shah performed a joint manoeuver, i.e., that seeing that Allah Dad and Hamid Ullah were trying to run away, they quickly placed themselves in such a position as to intercept the fugitives, was not made ground of reliance at an earlier stage of the case. Their Lordships pronounced a caution against confusing `same or similar intention' with `common intention' and considered that in the circumstances of the case, it was not possible to hold that "common inten tion as between Wall Shah and Mahbub Shah was a necessary inference." "Their Lordships have used no words in their judgment to indicate that, in their view, `a pre‑arranged plan' such as they considered should underlie common action with a common intention, for the purposes of section 34 P. P. C. should be proved by direct evidence, nor is there any obser vation by their Lordships to suggest that a conclusion of common intention cannot be drawn from the proved circum stances. There are no words in their judgment which exclude the possibility of a common intention developing in the course of the events which constitute the incident as a whole, although such intention may not have been present in the mind of any of the culprits at the commencement of the incident." It is abundantly clear that common intention can bed formed even during the course of transaction. The facts of the present case would' illustrate that proposition. When Sana Ullah went to the house of the deceased, he had no intention to kill him. When in response to his call for help Ata Ullah, Muhammad Sadiq and Abdul Quddus came, they could have no intention to cause the death of Muhammad. Sharif, although they came armed with sticks and a takwa. But they must have formed the common intention to cause the death of Muhammad Sharif when they attacked him with their respective weapons, for they inflicted as many as five injuries in the region of the head and only one on the chest, and that too with such a force as to cause a fracture of as many as three of the ribs. They did not inflict any injury on any other part of the body. It could not have been a mere coincidence that five out of six injuries landed on the most vulnerable part of the body and the 6th also on an important part of the body. Two of the injuries on the head were such which could be individually fatal, while the other injuries contributed to the death of Muhammad Sharif. We acquit Abdul Quddus giving him the benefit of the doubt, as he unlike the three co‑accused did not bear any injury on his person and in his case there is no corroboration of the statements of the eyewitnesses, who cannot be consi dered to be entirely independent. All the other appellants are jointly liable for causing the death of Muhammad Sharif by the application of section 34 P. P. C. We, therefore, uphold the conviction of Sana Ullah, Ata Ullah and Muhammad Sadiq under section 302 read with section 34 P. P. C. The learned Sessions Judge has already awarded them the lesser penalty prescribed by the law for the offence of murder. We dismiss the appeal in respect of them but accept it in respect of Abdul Quddus. A. H. Order accordingly.