1971 P Cr (PLP)

ABDUL HAKIM, J.‑The Reference No. 1 of 1970 under section 374, Cr. P. C. has been made by the Additional Sessions Judge, Comilla for confirmation of the sentence of death imposed on Idris Pandit and Anu Mia. The Appeal No. 72 of 1970 has been preferred by the condemned‑prisoners and the other co- accused challenging the order of conviction under sections 148, 302/34 and 307/34, P. P. C. passed by the learned Additional Sessions Judge. Both the reference and appeal are disposed of under this judgment. The deceased Shamsul Huque and the condemned‑prisoners Idris Pandit and Anu Mia come from the same village Subidpur, P. S. Hajiganj,: Comilla. By the west of their village there is a District Council Road which runs to the south through Balakhal Railway Station. The Railway Station is about one‑fourth mile to the south of their village and to the further south, that is, at a distance of about half a mile is Kaliatali Bazar. The people of Subidpur village go to Kaliatali Bazar for marketing through this District Council Road. There are drain‑like ditches on both sides of the District Council Road. The prosecution case, in short, is that on the 1st Baisakh 1375 B. S. (corresponding to 14th. April 1968) deceased Shamsul Huque and his elder brother Tazul Islam left home at about 7 a.m. for going to Kaliatali Bazar for marketing. After crossing the Balakhal Railway Station they met their co‑villager Younus Mia who was also on his way to Kaliatali Bazar for making purchases. So Shamsul Huque, Tazul Islam and Yunus Mia proceeded together through the District Council Road and they went up to 200 cubits to the south of Balakhal Railway Station. At this point, the accused persons, namely, Idris Pandit, Anu Mia, Abdul Matin, Abdul Sattar (son of Mansor Ali), Abdul Majid Khan, Abdul Sobhan, Abdul Ghani, Abul Khair, Abdul Sattar (son of Abdul Hakim), Abdul Jalil, Abdul Mannan and Abdur Rashid having formed an unlawful assembly being armed with dagger, iron rods and wooden rollers with the common object of killing Shamsul Huque and Tazul Islam suddenly encircled them. Accused Anu Mia struck with an iron rod on the head of Shamsul Huque and Shamsul Huque fell down on the side of the road having lost his balance and immediately accused Idris Pandit stabbed on his back with a dagger whereupon Shamsul Huque rolled down in pains and fell down into the western ditch and accused Jalil, Matin and Mannan got‑ down the ditch and con tinued to assault Shamsul Huque. On the other hand, the remaining accused including accused Idris Pandit began to assault Tazul Islam and in the process of assaulting, threw him into the ditch. Then all the 12 accused got into the ditch and brutally assaulted both Shamsul Huque and Tazul Islam, as a result of which Shamsul Huque died then and there and Tazul Islam became unconscious. Md. Yunus Mia, Abdul Mannan, Abdul Matin and Faziluddin who were near the place of occurrence saw the assaults, advanced and protested but in vain. They raised alarm which attracted many other people including the informant Abdul Matin Munshi, Ishaque, Idris Sardar, Chairman, Fazlur Rahman, Station Master of Balakhal. As some of them began to advance the accused left the victims and ran away towards the north. Md. Yunus, Abdul Mannan, Abdul Matin and Faziluddin brought out the dead body of Shamsul Huque and the unconscious Tazul Islam from the ditch and laid them on the western bank of the ditch. The informant and others saw the accused running away and also heard all about the occurrence from Md. Yunus, Abdul Mannan, Abdul Matin and Faziluddin who had seen the assaults. Immediately a doctor was called and Doctor Abdus Sattar came and gave first‑aid treatment to Tazul Islam after removing the victim to 'the Railway waiting room. Thereafter the informant along with Md. Yunus and Dafadar Noor Baksha went to Hajiganj Police Station and lodged the First Information Report Exh. 1 on the above allegations. The motive of the crime, as alleged by the prosecution, was that deceased Shamsul Huque purchased some lands of one Hayatunnessa in the name of himself and his brother sometime back. These lands were to the contiguous west‑north of accused Idris Pandit's house. Idris Pandit had tried to purchase the same but failed due to higher kid by Shamsul Huque and his brother. So out ‑of that grudge the accused killed Shamsul Huque and attempted to kill Tazul Islam. The local police investigated into the case and submitted charge‑sheet against the accused persons. A competent Magistrate after holding the preliminary enquiry committed them to the Court of Session to face trial under section 148/302/149, In the trial the learned Additional Sessions Judge at the instance of the Public Prosecutor, framed, three charges against the accused. The charges framed by the trial Court are as (1) I, Aminur Rahman Khan, Additional Sessions Judge, Comilla, hereby charge you (1) Abdul Matin, (2) Abdul Sattar, son of Monsar Ali, (3) Abdul Majid Khan (4), Abdus Sobhan, (5) Abdur Rashid, (6) Abul Khair, (7) Abdul Ghani, (8) 'Abdul Sattar, son of Abdul Hakim, (9) Idris Pandit, (10) Ann Mia, (I1) Abdul Jalil and (12) Abdul Mannan, as follows :‑ That you on or about the Ist Baisakh, 1375 B. S. correspond ing to 14th day of April 1968, at Balakhal District Council Road, village Sree Narayarpur Police Station Hajiganj were members of an unlawful assembly and did in prosecution of the common object of such assembly, namely, in committing the murder of Shamsul Huque and Tazul Islam, killed Shamsul Huque and brutally injured Tazul Islam and thereby committed the offence of rioting and at that time were armed with deadly weapons like dagger, iron rod, etc., and thereby committed an offence, punishable under section 148 of the Pakistan Penal Code, and within the jurisdiction of this Court. And I hereby direct that you be tried by the said Court on the said charge. (2) I hereby charge you (1) Abdul Matin, (2) Abdul Sattar, son of Monsar Ali, (3) Abdul Majid Khan, (4) Abdul Sobhan, (5) Abdur Rashid, (6) Abul Khair, (7) Abdul Ghani, (8) Abdul Sattar, son of Abdul Hakim, (9) Idris Pandit, (10) Anu Mia, (11) Abdul Jalil and (12) Abdul Mannan, as follows :‑ That you on or about the Ist Baisakh 1375 B. S. corresponding to 14th day of April .1968, at Balakhal District Council Road, village Narayanpur, P. S. Hajiganj, District Comilla, committed murder by intentionally causing :the death of Shamsul Huque in furtherance of the common intention of you all and thereby committed an offence punishable under section 302/34 of the Pakistan Penal Code and within the cognizance of the Court of Sessions. And I hear by direct that you be tried by the said Court on the said charge. (3) I, Aminur Rahman Khan, Additional Sessions Judge, Comilla, hereby charge you (1) Abdul Matin, '(2) Abdul Sattar son of Monsar Ali, (3) Abdul Majid Khan, (4) Abdus Sobhan, (5) Abdur Rashid, (6) Abul Khair, (7) Abdul Ghani, (8) Abdul Sattar son of Abdul Hakim, (9) Idris Pandit, (10) Anu Mia, (11) Abdul Jalil and (12) Abdul Mannan, as follows :‑ That, you on or about the 1st Baisakh 1375 B. S., correspond ing to 14th day of April 1968, at Balakhal District Council Road, village Sree Narayanpur, Police Station Hajiganj, attempt ed to murder Tazul Islam by causing grievous hurts on him in furtherence of common intention of you all to cause his death, and thereby committed an offence punishable under section 307/34 of the Pakistan Penal Code, and within the jurisdiction of this Court. And I hereby direct that you be tried by said Court on the said charge. The plea of the accused was one of innocence. They asserted that the occurrence did not take place in the manner as alleged and that they had been falsely implicated in the case out of grudge. Eighteen witnesses for the prosecution and none for the defence were examined in the case. The opinion of the assessors who aided the trial was divided. The learned Judge considering the evidence and agreeing partly with the opinion of the assessors, convicted all the 12 accused under section 148, P. P. C. but passed no sentence on that count. He also convicted all of them under section 307/34, P. P. C. but awarded no sentence. He then convicted all the 12 accused under section 302/34, P. P. C. and sentenced accused Idris Pandit and Anu Mia to death punishment each and the other ten accused to transportation for life each. The fact that Shamsul Huque is dead, is not disputed and it Is not necessary to discuss the evidence in this respect. The motive of the crime, as alleged by the prosecution, is not questioned by the defence The prosecution has proved the motive through P. Ws. 1 and

2. P. W. 1, the informant is not a witness to the occurrence. P. Ws. 2, 3, 6, 9, 10 and 12 are the alleged eye‑witnesses in .the case. P. Ws. 7 and 8 saw the occurrence from a distance, i.e. Balakhal Railway Station. P. Ws. 1, 7, 8 and 15 saw the accused persons running towards north after the occurrence. P. Ws. 4, 5 and 11 are the three doctors of whom P. Ws. 4 and 11 examined injured Tazul Islam (P. W.) and P. W. 5 held post‑mortem examination on the dead body' of Shamsul Huq. P. Ws. 16, 17 and 18 are the police officials of whom P. W. 18 is the Investigating Officer. P., Ws. 13 and 14 are just tendered by the prosecution. Among the alleged eye‑witnesses, P. Ws. 2 and 10 are very material witnesses and we shall discuss their evidence first. P. W. 2 Md. Tazul Islam is the brother of deceased Shamsul Huque. He is also the victim of the occurrence. He has stated in his deposition that on the 1st Baisakh 1375 B. S. he and his brother Shamsul Huque started from home at about 7 a.m. for going to Kaliatali Bazar for morning marketing. After crossing the Railway Station they met P. W. 10 Yunus Mia and they, proceeded towards the bazar along with Yunus Mia. While they were proceeding towards the bazar by the District Council Road and reached a place about 200 cubits south from the Station, accused Idris Pandit, Anu Mia, Abdul Jalil, Abdul Matin, Abdul Mannan, Abdul Sobhan, Abdul Majid Khan, Abul Khair, Abdul Sattar (son of Mansor Ali), Abdul Sattar (son of Abdul Hakim), Abdur Rashid and Abdul Ghani being armed with dagger, iron rods and wooden rollers surrounded them. Accused Anu Mia struck a blow with an iron rod on the head of Shamsul Huque and Shamsul Huque fell down on the west side of the road. Accused Idris Pandit at once gave a dagger blow on his back. Shamsul Huque then fell down rolling in the western ditch. Accused Matin, Jalil, Mannan began to assault him on the ditch. He entreated the accused not to assault his brother, whereupon all the accused started assaulting him and Shamsul Huque and as a result he also fell down in the ditch. He tried to get up by the western bank of the ditch but accused Idris Pandit came and attempted to stab on his chest which he averted with his hand and consequently, his right hand was injured. Idris Pandit also injured his left hand. Accused Anu Mia then gave a blow with iron rod on his head and he lost consciousness. After about an hour when he regained consciousness he found himself lying on the west side of the ditch and his brother Shamsul Huque lying dead. He saw P. Ws. 1, 3, 6, 9, 10, 12, 13 and 15 and others there. The witness was cross‑examined at length by the defence and he stood well in the test. Regarding the injuries inflicted on deceased Shamsul Huque, he categorically replied that accused Arm struck on his head with iron rod and as he fell down, accused Idris Pandit gave a dagger blow on his back. In respect of the other accused he, however, admitted in cross‑examination that he could not see who else assaulted Shamsul Huque in what manner. He could not also see which of the other accused assaulted him in What manner. In reply to another question put: by the defence the witnesses stated that it was not a fact that he did not state to the Investigating Officer or to the Committing Court that all the accused assaulted Shamsul Huque and himself. The Investigating Officer P. W. 18 in this connection stated that P. W. 2 did not state that all the 12 accused assaulted him or Shamsul Huque. Thus there is some inconsistency in the evidence of P. W. 2 regarding causing of injuries by all the 12 accused but for that reason alone, his entire evidence cannot be disbelieved. Barring this contradiction there is nothing else on record to impeach the veracity of the witness. We shall consider the effect of this contradiction in due course when we shall discuss the case of individual accused later on. The witness is 1a victim of the occurrence. He received several injuries on the hands of the accused. P. Ws. 4 and 11 described the injuries found on his person. He was in the hospital for more than 20 days. In the circumstances, his presence on the spot cannot at all be doubted, The minor omissions pointed out by the learned Advocate with reference to his earlier statement made in the committing Court are not very material. The fact that the witness was an accused in a proceeding under section 107, Cr. P. C. brought by accused Anu Mia is not also sufficient to discard his evidence. The entire evidence of a witness cannot .be rejected merely due to some minor omissions or contradictions here and there and we find no reason to disbelieve his evidence. P. W. 10 Md. Yunus Mia has stated in his deposition that on the 14th April 1968 (1st Baisakh 1375 B. S.) at about 7 a.m. he was going to Kaliatali Bazar for marketing and on the way he met deceased Shamsul Huque and P. W. 2 Tazul Islam. They were proceeding towards the market together and as soon as they went about 200 cubits to the south of Balakhal Railway Station by the District Council Road, accused Idris Pandit, Anu Mia, Abdul Matin, Abdul Mannan, Abdul Jalil, Abdus Sattar (son of Monsur Ali), Abdul Majid, Abdus Sobhan, Abdul Ghani, Abul Khair, Abdus Sattar (son of Abdul Hakim), Abdur Rashid came from behind and surrounded them. Idris Pandit held a dagger, Abdul Ghani and Abdur Rashid held wooden rollers and other accused held iron rods. Accused Anu Mia first struck a blow with iron rod on the right side of the head of Shamsul Huque and Shamsul Huque lost balance and fell down on the west edge of the road. At once Idris Pandit stabbed him on the back with a dagger. Shamsul Huque then rolled down and fell in the adjoining ditch. Then Abdul Matin, Abdul Jalil and Abdul Matin got down the ditch and assaulted Shamsul Huque. The other accused began to assault Tazul Islam and pushed him in the ditch. Then all the accused got down in the ditch and began to assault both Shamsul Huque and Tazul Islam. He protested but with no effect. At that time P. Ws. Abdul Matin Mia, Faziluddin, Abdul Mannan and Abdul Ali came there and saw the assaults. P. Ws. Abdul Matin Mia, Idris Sardar, Chairman and Ishaque Mia also came there and enquired about the occurrence and he narrated the occurrence to them. In cross‑examination nothing tangible has been elicited against him. In reply to a question put by the defence the witness stated that it was not a fact that he did not state to the Investigat ing Officer that Abdul Matin, Abdul Mannan and Abdul Jalil went down in the ditch and assaulted Shamsul Huque but P. W. 18 the Investigating Officer stated that P. W. 10 Yunus Mia did not state to him that Abdul Matin, Abdul Mannan and Abdul Jalil assaulted Shainsul Huque. The witness thus contradicted the Investigating Officer regarding infliction of injuries by accused Matin, Abdul Mannan and Abdul Jalil. This inconsistency, in our opinion, is not sufficient to reject his entire evidence. . We shall, however, consider the effect of this contradiction when we shall discuss the case of individual accused later on: Barring this contradiction, there is noting else on record to damage the veracity of the witness. His evidence is otherwise consistent and straightforward and there is no reason to disbelieve him. It has been pointed out by the learned Advocate for the accused that he is the full brother of P. W. 15 Idris Sardar, Chairman with whom accused Idris Pandit had political rivalry and also long standing litigations. The witness is an employee under the Railway Department. He was posted at Chittagong and used to live mostly at Pahartali. He came to his village house on leave during those days. He saw the occurrence while he was proceeding towards the market in the company of deceased Shamsul Huque and P. W. 2 Tazul Islam. His presence on the spot is admitted by a number of other witnesses. He seems to live in separate mess from P. W.

15. The Chairman might have all feelings against accused Idris Pandit but this witness has no reason to be bias against all the 12 accused and take false oath in a case under section 302, P. P. C. In the circumstances, simply because of the fact that the witness is a brother of P. W. 15 Idris Sardar, we cannot reject his evidence and there is no reason to disbelieve the evidence of the witness. P. W. 3 Abdul Matin Mia, P. W. 6 Faziluddin, P. W. 9 Abdul Mannan and P. W. 12 Abdul Ali Mir have stated in their depositions that on the 1st Baisakh 1375 B. S. at about 7 or 7‑30 a.m. while deceased Shamsul Huque and P. W. 2 Tazul Islam together with P. W. 10 Enus Mia were going towards Kaliatali Bazar along with the District Council Road and reached a place about 200 cubits to the south of Balakhal Station the 12 accused, namely, Ann Mia, Idris Pandit, Abdul Matin, Abdus Sattar (son of Monsur Ali), Abdul Majid Khan, Abdul Sabhan, Abdul Ghani, Abul Khair, Abdul Sattar (son of Abdul Hakim), Abdul Jalil, Abdul Mannan and Abdur Rashid came running armed with dagger, wooden rollers and iron rods and surrounded them. P. Ws. 9 and 12 pointedly mentioned that accusred Idris Pandit held dagger, Abdul Ghani and Abdur Rashid held wooden rollers and the other ten held iron rods. They assaulted deceased Shamsul Huque and P. W. 2 Tazul Islam and threw them down in the ditch and Shamsul Huque was killed and Tazul Islam was unconscious. They forbade them not to assault but in vain. After the assaults when people began to come, the assailants ran away towards the north. These witnesses did not however; say what injuries were caused by which of the accused. They stated that they could not see who assaulted whom and in what manner, as the assaults took place within the surrounding. There is nothing in cross‑examination to damage the veracity of these witnesses. The grievance that P. W. 3 Abdul Matin Mia was an accused in a proceeding under section 107, Cr. P. C. brought by accused Idris Pandit cannot be deemed as sufficient to discard his evidence. The evidence of the witnesses being otherwise consistent, we find no reason to disbelieve the evidence of these four witnesses. P. W. 7 Fazlur Rahman was the Station Master at Balakhal Railway Station at the relevant time. P. W. 8 Akhtaruzzaman was also an employee at the Balakhal Railway Station during the period. Both P. Ws. 7 and 8 stated in their depositions that on the date of occurrence at about 7‑30 a.m. they heard cries from the south and on coming out, they saw 10/12 persons assaulting two persons on the road and some men standing nearby. The place of occurrence was about 200 cubits south from the Station. After assaults they saw the 10/12 assailants going towards north ". by the east .of ,the Railway Station. They. held iron rods and wooden rollers and had wet cloths on their persons. Some blood stains were also seen on their bodies and clothes. Amone the miscreants they recognised accused Abdul Matin, Abdul Jalil, Ann Mia, Abdul Mannan, Idris Pandit and Abul Khair. The criticism against these two witnesses are that they had deposed earlier in a case against accused Idris Pandit. There is nothing else on record to shake their evidence. It appears that these witnesses deposed against Idris Pandit long ago but from that alone, it cannot be said that the witnesses have taken false oath in this murder case against 12 persons. Even if they had any reason to depose against Idris Pandit long ago they have no animous against the other 11 accused. Further these witnesses are deposing only to the effect that they saw them running by the side of the Railway Station soon after the occurrence. We, therefore, find no reason to reject their evidence. P. W. 1 Abdul Matin Mia and P. W. 15 Md. Idris Sardar have deposed to the effect that they heard hue and cries from the place of occurrence and they were proceeding to that direction and at that time they saw the 12 accused‑appellants armed with various weapons running towards north by the east of Balakhal Railway Station and accused Idris Pandit held dagger, Abdul Rashid and Abdul Ghani held wooden rollers and the others held iron rods. Their clothes were wet and bearing blood‑stains. P. W. 1 is an uncle of the deceased but the relationship alone is no ground to discard the evidence of a witness. The learned Advocate for the accused has tried to point out certain omissions and contradictions in his evidence with reference to the First Information Report and his earlier statement in the com mitting Court but those omissions and contradictions are all on minor points and these cannot affect the veracity of the witness. There is, therefore, no reasons to disbelieve his evidence. It has been pointed out that P. W. 15 Idris Sardar, Chairman has got political rivalry and a long standing enmity with accused Idris Pandit and several litigations are still pending between them and as such his evidence cannot be relied on. The grievance made by the learned Advocate for the accused‑appellants seems to have some force. The record shows that the witness has got long standing enmity with accused Idris Pandit and some cases are still pending between them. In the circumstances, the possibility of exaggerating things by him cannot be altogether ignored, although his presence at the place of occurrence has been proved by a number of other witnesses. Even if his evidence is left out of consideration for the sake of safety there are sufficient evidence on record to corroborate the versions of the eye‑witnesses. Let us now turn to Medical evidence on record. P. W. 5 Dr. Mustifizur Rahman held post‑mortem examination on the dead-body of Shamsul Huque and found three injuries on his person. The injuries, as described by the doctor, areas follows :‑ "(1) One incised wound 1" x " x muscle deep on the right side just below the angle of right scapula. (2) One incised wound 1" x " x muscle deep on the right lumber region. (3) One incised wound " x 2" x bone deep on the forehead on dissection extravasated blood clots were found underneath the injured area. Right pleura and right lungs were perforated at its upper end. Right kidney was perforated in its middle part. Heart was found empty. Right frontal bone was found fractured into two pieces (illegible) in type. The dura and araenoit were found congested. Extravasated blood clots were found in the sub‑area cudit place. Brain matter was found congested." The doctor opined that the death of Shamsul Hoque was due to the effect of injuries. Shock and haemorrhage which were ante‑mortem and ‑homicidal in nature. P. W. 4 Dr. Moinullah, Sub‑Divisional Medical Officer, Chandpur, examined P. W. 2 Tazul Islam op the 14th April 1968, at about 3 p.m. and found the following injuries :‑ "(1) One penetrating wound on the lateral side of the right elbow joint " x " x muscle deep. (2) One diffused tender swelling extending from the middle of the right arm up to the middle of the right forearm with respected fracture of the lower end of the right humerus. X‑ray shows fracture at the lateral condle of the right humerus. (3) An incised wound on the middle of the left leg x " x ". (4) An incised wound below the left elbow ' x ' x ". (5) One diffused tender swelling on the middle of the left forearm. (6) A lacerated, wound on the left perietal region 1 " x x scalp deep. (7) A tender swelling on the right side of the frontal region 1 ' x 1 ". (8) One diffused tender swelling a dorsum of the right hand. Age of the injuries within 6 to 10 hours. Nature of injury No. 2 is grievous. All other injuries are simple in nature." P. W. 11 Dr. Abdus Sattar who gave preliminary treatment to P. W. 2 Tazul Islam also noticed several injuries on his person. In the light of the evidence discussed above, let us now see how far the prosecution case has succeeded to prove the charge under section 148, P. P. C. All the 12 accused are named in the First Information Report Exh.

1. P. Ws. 2, 3, 6, 9, 10 and 12 have uniformly stated that all the 12 accused came in a Body armed with dagger, iron rods and wooden rollers etc. and attacked the deceased Shamsul Huque and P. W. 2 Tazul Islam. P. Ws. 6, 9 and 10 pointedly mentioned that accused Idris Pandit held dagger, accused Ghani and Rashid held wooden rollers and the remaining ten accused held iron rods. P. W, 1 found all of them retreating towards the north armed with weapons. P. Ws. 7 and 8 also saw the 12 accused persons running towards the north and of them they recognised 6 persons. The common object of the unlawful assembly was to commit murder of Shamsul Huque and Tazul Islam. The evidence of the local witnesses have proved beyond reasonable doubt that all the 12 accused‑appellants formed an unlawful assembly with the common object alleged and some of them used force and actually killed Shamsul Huque and brutally injured Tajul Islam. A case of rioting has thus been well established against all the accused‑appellants. Accused Abdul Gani and Abdur Rashid had wooden rollers W their hands. In view of the nature of weapons found in their possession, we think that it would be proper to convict them under section 147, P. P. C. but regarding the other ten accused, in view of the uniform evidence that they were armed with dagger and iron rods, some of which were sharpened and pointed at the end, we hold that they have been rightly convicted in the case under section 148, P: P. C. Let us now come to the charge under section 302/34, P. P. C. levelled against the accused‑appellants. The learned Judge considering the, evidence, facts and circumstances of the case held as follows:- "Thus all these witnesses have consistently proved the fact that these 12 accused persons having formed an unlawful assembly being armed with dagger, iron rods and wooden rollers encircled Shamsul Huque and Tazul Islam and assaulted him at random causing instantaneous death of Shamsul Huque on the spot. They have also proved that accused Idris Pandit stabbed Shamsul Huque and Tazul Islam and accused Anu Mia struck on their heads with iron rod. It is further proved by the evidence that accused Idris Pandit had grudge against Shamsul Huque and Tazul Islam who had purchased a land contiguous to his house from Hayatunnessa by kabala Exh. 2 which the accused Idris Pandit failed to purchase. At the time of the occurrence Shamsul Huque and Tazul Islam were unaware of the preparation of the accused for murdering them and they were going to Bazar for marketing when suddenly they were encircled and mercilessly assaulted by these 12 accused persons who had formed an unlawful assembly by plan and preparation for making the attack and committing the murder of Shamsul Huque. But for the interference and approach of witnesses they would have killed both; Shamsul Huque and Tazul Islam. It was only due to arrival of people that they left Tazul Islam in unconscious state and fled away. It is significant to note that the defence could not practically assail the prosecution case and could not discredit it in any manner. The occurrence took place in broad daylight within the sight of several eye witnesses. The F. I. R. was‑lodged at the earliest opportunity giving full details of the occurrence naming the assailants and giving details of the time, place and manner of the occurrence and also naming the eye‑witnesses. There was no reason and no scope of concoction of a false case against the accused by the informant whose own nephew was killed on spot and, another own nephew brutally assaulted by leaving and sparing the real offenders. The defence could not also cite any motive for the informant to lodge false F. I. R. and for the witnesses to depose falsely about the occurrence which they had seen by falsely suppressing the names of the real offenders and implicating the accused falsely. In fact that the entire prosecu tion case was vividly narrated with same consistency all through from the F. I. R. that was lodged Within 2 hours of the occurrence up to the evidence in this Court. All these cited Witnesses were produced and they were all natural witnesses of the occurrence. The defence could not suggest that any witness of the occurrence was withheld. Only a few tea-stallers of the railway station could not be produced as they were related to the accused while the defence could not deny the occurrence of murder of Shamsul Huque and the assault on Tazul Islam it could not give any kind of suggestion that this occurrence took place in any different manner other than that narrated by the prosecution. I, therefore, find that the prosecution has proved beyond doubt that the occurrence took place exactly at the time, place and manner as was told by the prosecution. It is also proved that all the 12 accused had their common intention to kill Shamsul Huque and Tazul Islam and in furtherance of that common intention they all joined in an unlawful assembly being armed with deadly weapons like dagger, iron rod., and wooden rollers and made attack and determined assaults on Shamsul Huque and Tazul Islam killing Shamsul Huque on the spot and making Tazul Islam unconscious. They left the victims only after finding their position insecure on the arrival of the witnesses. Hence accepting the opinion of some of the assessors I find all the 12 accused persons guilty under sections 148, 302/34 and 307/34, P. P. C." We may incidentally point out here that conviction of accused persons under various sections in lump, without considering each of the charges separately with reference to the evidence on record, is not proper. The committing Court's statement of a witness is brought on Sessions records under section 288, Cr. P: C. and not under section 145 of the Evidence Act, as it has been done in the present case. It appears from the charge framed under section 148, P. P. C. as quoted above, that all .the 12 accused were put on trial for committing rioting on the allegations that they formed an unlawful assembly with the common object of murdering Shamsul Huque and Tazul Islam and killed Shamsul Huque and injured Tazul Islam. The learned Judge himself also found that the 12 accused formed an unlawful assembly and got themselves armed with deadly weapons with the plan and preparation for committing the murder of Shamsul Huque and actually killed Shamsul Huque and brutally injured Tazul Islam. That being the position, it would have been proper to charge the accused for substantive offence of murder under section 149, P. P. C. But the trial Court framed charge against the accused for murder with the aid of section 34, P. P. C. Hence the charge under section 302/34, P. P. C. has been the subject of criticism from the Bar in this case. All the accused having been charged for rioting with the common object of committing murder and a murder having been committed in prosecution of that common object, it would have been simpler and in fact, not in any way in contravention of either fact or law, to charge them under section 149, P. P. C. In this connection we may quote a passage from a decision reported in P L D 1967 S C 167‑"Yet, it would have been simpler and in fact, not in any way in contravention 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." Mr. A. Wadud Mia, the learned Advocate for the accused appellants has argued that all the accused being initially actuated by the common object of killing Shamsul Huque and Tazul Islam and having reached the place of occurrence to materialise that common object and actually killing Shamsul Huque and assaulting Tazul Islam in prosecution of the common object, the question of forming any common intention in them on the spot of the moment, does not arise. He has pointed out that section 34 requires a pre‑arranged plan and there being no evidence or circumstances to show that any such pre‑arranged plan was hatched up, no common intention can be inferred against them. He has also submitted that there being no circumstances to show that a common intention developed in the course of the event, the conviction of the accused‑appellants including the condemned prisoners under section 302/34, P. P. C. is not justified in law. Even if the prosecution case is accepted and Shamsul Huque died as a result of the injuries caused by some one of them, he may at best be held liable for his individual act. Mr. A. T. M. Masud, the learned Deputy Legal Remembrancer appearing for the State has, on the other hand, contended that a common intention within the meaning of section 34, can at least be inferred against some of the accused, namely, accused Idris Pandit, Anu Mia, Abdul Matin, Abdul Jalil and Abdul Mannan from their conduct and the injuries inflicted by them on deceased Shamsul Huque. It is the consistent prosecution case that all the 12 accused appellants formed an unlawful assembly with the common object to kill Shamsul Huque arid his brother Tazul Islam and they came to the place of occurrence armed with weapons and assaulted the complainant party in prosecution of that common object. We have already discussed that part of the prosecution case and held that, the accused formed an unlawful assembly and were rightly convicted for rioting under sections 147 and 148, P. P. C. Now the question for consideration is whether any common intention grew amongst the accused‑appellants within the meaning of section 34, P. P. C. and whether there are evidence to indicate that the accused‑appellants murdered Shamsul Huque in furtherance of that common intention. All the 12 accused being actuated by the common object alleged, coming to the spot in a body armed to materialise that common object and assaulting the complainant party in prosecution of that common object, it requires to be seen whether any common intention grew in them either at the beginning or in the course of the event and whether there are circumstances to indicate that the accused‑appellants intended anything different from the common object alleged and formed any common intention to kill Shamsul Huque at the last moment after their arrival on the spot. The common inten tion may, no doubt, grow in the course of the event. A common intention or common object is a thing which cannot always be proved by direct evidence and it should be inferred from the surrounding facts and circumstances of the case. But in a case of rioting, the facts and circumstances which constitute the common object of the unlawful assembly may not by itself be always sufficient to attract the common intention of the party. A common intention and common object should not be mixed up together. The common intention and common object are no synonymous in any way and they have got their distinguishable features. The distinctions between sections 34 and 149, P. P. C. are now well‑settled. Section 34 of the Penal Code applies in the circumstances given in the section. If the charge be one under section 302/149, P. P. C. there is no difficulty but the pro secution has taken resort to section 34, in the case. If the prosecution wants to take aid of section 34, P. P. C. some additional materials are necessary to attract the application of that section. In order to bring the case within the mischief of section 34, it is essential that some additional circumstances, beyond the materials necessary to prove rioting, should be brought on record to show that there was a pre‑concert or mixing of minds to do a thing other than the thing for which the common object was formed. The party of 12 persons was initially actuated with the common object to do a certain thing but if they are then alleged to have intended to do a different thing, it is for the prosecution to bring those new circumstances on record to take the aid of section 34, P. P. C. There should be some materials on record to justify the findings of common intention and in the absence of any circumstances or evidence such common intention should .he incapable of being gathered in a case. In some case the possibility of developing common intention during the course of the event cannot altogether be excluded but to justify such an inference, the prosecution must produce some material. The inference of common intention in each case should be deduce' from facts and circumstances of the case. In the instant case, 1 the 12 accused persons went to the place of occurrence with the coma on object to kill Shamsul Huque and his brother Tazul Islam and the facts and circumstances of the case show that whatever they did in this connection, they did it in prosecution of that common object. There is nothing on record to indicate that the accused‑appellants developed any common intention to kill Shamsul Huque on the spur of the moment and they Murdered Shamsul Huque in furtherance of their common intention. In the circumstances of the case, we, therefore, inclined to take the view that the prosecution has failed to prove any common intention alleged to be hatched up during the course of the event and section 34, P. P. C. has no application in the case. In view of the above findings, the contention of the learned Deputy Legal Remembrancer that a common intention should be inferred at least against five of the accused persons named above, has no force. At this stage, he has faintly argued, that the conviction of the accused‑appellants under section 302/34, P. P. C. should be converted to one under section 302/149, P. P. C. but facing certain difficulties, he has not pursued this point any longer. The accused have not been specifically charged under section 302/149, P. P. C. and without giving reasonable opportuni ties to the accused to meet the allegations their conviction cannot be converted to that section. It is not only a question of prejudice but in a charge where the normal sentence is death and the lesser sentence is transportation, the conversion of conviction from 302/34 to 302/149 is not at all safe. Since the learned Advocate did not develop the question, we don't like to say anything more in this respect. This leads us to hold that the accused‑appellants should be judged for their individual acts. Let us therefore consider the acts of the individual accused. The evidence on record shows that accused Anu Mia first struck a blow with iron rod on the head of Shamsul Huque and when he fell down, accused Idris Pandit stabbed him with dagger on his back and when the injured fell into the adjoining ditch accused Abdul Matin, Abdul Jalil and Abdul Mannan got down there and assaulted him. The direct evidence of inflicting blows on the deceased by the above accused, has been furnished by only two witnesses, namely, P. Ws. 2 and

10. The evidence of P. Ws. 2 and 10 regarding infliction of injuries by accused Anu Mia and Idris Pandit are uniform but their evidence regarding infliction of injuries by accused Matin, Jalil and Mannan appear to be at variance. We have already indicated earlier while discussing the evidence of "the witnesses that P. W. 2 Tazul Islam did not state to the investigating officer that all the accused assaulted Shamsul Huque and thus contradicted the latter. He also admitted in cross‑examination that he could not see who else‑ assaulted Shamsul Huque in what manner. This inconsistency in the evidence of P. W. 2 leaves room for doubt whether accused Abdul Matin, Abdul Jalil and Abdul Mannan assaulted Shamsul Huque in the ditch. P. W. 10 Md. Enus Mia stated in Court that accused Abdul Matin, Abdul Jalil and Abdul Mannan got down the ditch and assaulted Shamsul Huque. But he contradicted the investigating officer P. W. 18 in this respect. P. W. 18 stated that P. W. 10 Md. Enus Mia did not state that Abdul Matin, Abdul Jalil and Abdul Mannan went down in the ditch and assaulted Shamsul Huque. This contradiction in his evidence cannot be reconciled. There is practically no other evidence on record to prove the assaults by accused Matin, Jalil and Mannan on deceased Shamsul Huque. In the circumstance it cannot be safely held that accused Abdul Matin, Abdul Jalil and Abdul Mannan actually assaulted deceased Shamsul Huque Although‑ tile evidence of P: Ws. 2 and 10 as discussed earlier, are found to be convincing in all other respects, but their evidence regarding infliction of injuries by accused Matin, Jalil and Manner are not above board. The medical evidence on record does not also support this aspect of the case. So in our opinion, these three accused are at least entitled to benefit of doubt in this respect. The recovery of a blood‑stained ganji from the house o accused Matin does not prove that Matin actually gave blow on the deceased. That may at best prove his presence on the spot or his participation in the occurrence. There is no direct evidence on record to show that any other accused caused any injury on deceased Shamsul Huque. As found above, accused Matin, Jalil and Mannan cannot also be said to have caused any injury on him. P. Ws. 2 and 10 have categorically stated that accused Ann Mia gave a blow with iron rod on the head of deceased Shamsul Huque and accused Idris Pandit gave a dagger blow on his back. The medical evidence, as quoted above, also shows that there is an injury on the forehead of the deceased and another injury on the back right side just below the angle of right scapula. The doctor, of course, found three injuries on the dead body of deceased, Shamsul Huque. Each of the three injuries, as described by the doctor, appears to be dangerous and fatal. The injury on the head caused fracture and the right frontal bone was found fractured‑into two pieces. The injury on the right side just below the angle of right scapula perforated the tight pleura and right lungs at its tipper end. The other injury, namely injury No. 2 was also equally dangerous and the right kidney of the victim eras perforated in its middle part due to The doctor has opined that death was due to the cumulative effect of the injuries which were ante‑mortem and homicidal in nature. The description of injuries shows that each of the injuries was individually sufficient to endanger the life. Accused Anu Mia can very well be connected with injury No: 3 on the forehead of the deceased. Similarly accused Idris Pandit can be connected with injury No. 1 on the right side below the angle of right scapula. None can, however, be connected with the other injury, namely, the injury No. 2 which might be caused by some one of the accused in the melee. Although there is no clear evidence to connect airy other accused with the other injury but considering the evidence of P. Ws. 2 and 10 and all other materials on record, we are convinced that accused Ann Mia is responsible for injury No. 3 and accused Idris Pandit is responsible for injury No. 1 and these injuries are individually sufficient to cause the death of Shamsul Huque. The opinion of P. W. 5 regarding the weapons used, appears to be based on confusion and that, cannot affect the direct evidence of record. We, therefore, find each of the accused‑appellants Anu Mia and Idris Pandit individually liable for murder of Shamsul Huque. There are authorities to show that if one or two accused are individually found liable for causing the death of a man and the Court is satisfied regarding the individual liability of each of the accused, it is open to it to record a conviction against each o them under section 302, P. P. C. In this connection we ma quote a few lines from a decision reported in

9. D L R 1 (S C) "When, therefore, at the conclusion of the trial the learned Sessions Judge was satisfied regarding the individual liability of Muhammad Anwar and Khurshid for the two deaths in question it was open to him to record a conviction against each of them under section 302, P. P. C. in actual fact, after reaching the finding of individual responsibility which has been reproduced above, the learned Judge considered the hypothesis of the defence regarding the deaths having been caused by a single bullet and recorded his conclusion as below. Even if I accept the contention of the defence for the sake of argument, that both the deceased persons were hit by the same bullet in my opinion, both the aforesaid accused persons would be equally liable for the injuries caused, because, after the receipt of an injury by Muhammad Yusuf accused, both of them ran into the baithak and came out armed with rifles. That being the case, it can reasonably, be inferred that both of them intended to use the rifles and murder the deceased. Both of them are proved to have fired rifles and it is immaterial, there fore; whether it was the bullet of one or the other which hit the deceased persons, as in my view, both the accused can be saddled with the common intention of murdering the deceased. Disagreeing with the opinion of the assessors qua the aforesaid two accused, I hold them guilty under section 302/34 and convict them. We consider that on the view taken by him which was con firmed by the High Court, the convictions should more correctly have been under section 302, P. P. C. for direct liability. Yet the passage reproduced above shows clearly that there was in the case an element of doubt of the kind mentioned in section 236, Criminal P. C., and that the case therefore, fell within the principle enunciated in section 237, of the same Court." There are also authorities to show that if a charge is framed under section 302, with the aid of section 34 or 149, the conviction and sentence can be made under section 302, alone. Where it is found that each of the accused is individually guilty of murder, the Court is competent to convict each one of them for murder under section 302 notwithstanding that the charge preferred against x them, in respect of the murder is one of constructive liability i e. under section 302 read with section 34 or 149, P. P. C. If on evidence, the Court is satisfied that each of the accused‑appellant is individually liable for murder, it can convict and sentence them straight under section 302, P. P. C., notwithstanding that the charge against framed them in respect of murder was under section 302 read with section 149, P. P. C. Provisions in sections 236 and 237, Cr. P. C. permit such conviction. In this connection we may profitably refer to the case of Sardar Ali v. Thel Crown (P L D 1956 F C 425). Thus in this case, although the charge under section 302/34, P. P. C. failed, we are satisfied, that the accused‑appellants Anu Mia and Idris Pandit are individually responsible for murder of Shamsul Huque and they should be convicted straight under section 301, P. P. C. So considering all aspects of the matter, we set aside the order of conviction under section 302/34, P. P. C. and convict the accused‑appellants Anu Mia and Idris Pandit under section 302, P. P. C. Let us then turn to the charge framed under section 307/34. P. P. C. Our observation regarding applica tion of section 34, P. P. C. applies here also. We have already found that section 34, has no application in the case and so the case of the accused‑appellants should be judged on the basis of their individual acts. The evidence on the charge is very meagre. The only evidence that has been furnished in this connection is the evidence of P. W. 2 Tazul Islam. He has stated in his deposition that all the accused began to assault him and when he fell down in the ditch, accused Idris Pandit attempted to stab on his chest but he averted it with his hand and his right hand was injured. Idris Pandit also injured his left hand. Accused Anu Mia gave him a blow with iron rod on his head and as a result he lost his consciousness. P. W. 10 Eunus stated that all the accused assaulted P. W. 2 Tazul Islam but he did not specifically state that accused Idris Pandit and Anu Mia caused injuries on him. There is no other direct evidence to show that any other accused caused any injury on P. W. 2 Tazul Islam. The general statements of P. Ws. 2 and 10 or the other witnesses that all the accused assaulted Tazul Islam do not receive support from the medical evidence. The doctor P. W. 4 Moinullah found 8 injuries and the doctor P. W. 11 Abdus Sattar found 7 injuries on the person of Tazul Islam. In view of the number of injuries, it cannot be inferred that all the accused assaulted him. Thus even accepting the evidence of injured Tazul Islam, we may maximum bring accused Idris Pandit and Anu Mia within the ambit of section 307, P. P. C. for their individual acts. There is no denying that P. W. 2 Tazul Islam was brutally injured in the occurrence and remained confined in the hospital for more than 20 days. In the circumstances accused Idris Pandit and Anu Mia may be convicted under section 307, P. P. C. for their individual acts. The learned Advocate for the defence has not advanced any argument that the injuries on P. W. 2 Tazul Islam do not constitute any offence under section 307, P. P. C. but attract some other minor section and it is not necessary to make any discussion in this respect. Consequently, the order of convic tion under section 307/34, P. P. C. is set aside and accused Idris Pandit and Anu Mia are straight' convicted under section 307, P. P. C. In result the conviction of accused‑appellants Anu Mia and Idris Pandit, Abdul Matin, Abdul Sattar (son of Mansor Ali), Abdul Majid Khan, Abdul Sobhaf, Abul Khair, Abdul Sattar (son of Abdul Hakim), Abdul Jalil and Abdul Mannan under section 148, P. P. C. is confirmed and that of accused‑appellants Abdul Ghani and Abdur Rashid is reduced from 148 to 147, P. P. C. The first ten accused‑appellants are accordingly sentenced under section 148, P. P. C. to suffer rigorous imprison ment for two years each and the last two accused‑appellants (Abdul Ghani and Abdur Rashid) are‑sentenced under section 147, P. P. C. to suffer rigorous imprisonment for one year and six months each. The condemned‑prisoner Idris Pandit is aged about 70 years. As opined by the doctor P. W. 5, Shamsul Hoque died as a result of three injuries, whereas the condemned‑prisoners Idris Pandit and Anu Mia were responsible for two fatal injuries. In the circumstances we are not inclined to award extreme penalty of law on them and in our opinion, the ends of justice would be met if the two accused‑appellants Anu Mia and ldris Pandit are given transportation for 'life under section 302, P. P. C. The sentence of death imposed on them is accordingly commuted to transportation for life each. In view of the sentences already imposed on accused Idris Pandit and Anu Mia under sections 148 and 302, P. P. C. no separate sentence under section 307, P. P. C. is called for. We, therefore, pass no separate sentence on these two accused appellants under section 307, P. P. C. Accused‑appellants Abdul Matin, Abdul Sattar (son of Monsar Ali), Abdul Majid Khan, Abdus Sobhan, Abul Khair, Abdul Sattar (son of Abdul Hakim), Abdul Mannan and Abdur Rashid are acquitted of the charges under sections 302/34 and 307/34, P. P. C. The sentences of accused‑appellants Idris Pandit and Anu Mia under sections 148 and 302, P. P. C. shall run concurrently. Accordingly the reference is rejected and the appeal is disposed of. AHSANUDDIN CHOUDHURY, J.‑‑I agree. Order accordingly.