P L D 1959 (W (PLP)

4. P. Ws. Allah Wasaya and Imam Bakhsh, who were cultivating their fields nearby, witnessed the occurrence. They went to the camp of the appellants to claim the body of the deceased who was then alive but unconscious, and they brought it back after some prevarication on the part of the appellants. Mazar P. W., brother of the deceased who had run away from the spot after the appellants had given him a chase for some distance, went and informed P. W. Muhammad Azim, the Lambardar. A report was then lodged at the Police Station Kala, situated at a distance of half a mile from the crime village, by P. W. Mazar at 10 p.m., the same night. The deceased expired some time at midnight without regaining consciousness, and on his autopsy the following injuries were found: (1) A contused wound, 1" x 1/3" x 1/8", on the front of the head, 3 " from the middle of the left eyebrow from its midline. The skull was found fractured at left frontal bone which continued into left temporal about 3 " from the ridge of the left eye. (2) Right parietal bone near the middle was also fractured. Death was due to cerebral haemorrhage, resulting in cerebral compression due to the rupture of the left middle meningeal artery caused by a blunt weapon. The injury, according to the doctor, was sufficient in the ordinary course of nature to cause death.

5. The appellants were arrested by the police on the follow ing day of the occurrence. They alleged complete ignorance about the incident and stuck to this position throughout except that in the committing Court's statement Muhammad Gut appellant while reserving his detailed statement for the Sessions Court, stated that " Haider deceased was the aggressor". From this part of his statement the learned Sessions Judge has construed an implied A admission of his presence at the spot and participation in the crime. I do not think that it is permissible to extend the presumption arising from this text of the statement to the limit carried by the learned Sessions Judge, but as the point is not of any consequence in the case I do not wish to pursue it further.

6. I have no doubt that the occurrence took place sub stantially in the manner as alleged by the prosecution and as described by the eyewitnesses, out of whom P. Ws. Allah Wasaya and Imam Bakhsh are thoroughly independent.

7. But holding the prosecution story as correct, the question that arises is whether the convictions as recorded by the learned Sessions Judge are correct and can be maintained.

8. Learned counsel for the appellants has not contested the finding of the trial Judge that the blow on the head of the deceased was delivered by Muhammad Gut, but he contends that the offence of Muhammad Gut falls under section 325, P. P. C., and not under section 304 (ii), P. P. C., and he prays for reduction of his sentence. In respect of Ghuncha Gut he has argued that no offence has been proved against him.

9. The distinction between an offence under section 304 (ii) P. P. C., and an offence under section 325, P. P. C., assumes importance in cases where the victim dies as a result of the injury a caused by a blunt weapon on a vital part of the body, like the skull, and it becomes necessary to ascertain whether the offence of the culprit falls under one or the other of the sections. Some times one is left thinking which one is graver of the two in terms of the punishments provided, as the offence under section 325, P. P. C., is punishable with the maximum term of imprisonment for seven years and fine, whereas an offence under section 304 (ii), P. P. C., is punishable to a term of imprisonment extending to ten years but also alternatively with fine, the words used in the penalising part of this section being "imprisonment extending to ten years or with fine or with both". Construing the intention of the Legislature on the overall contents and effects of these two sections separately, I am inclined to think that an offence under section 304 (ii), P. P. C., is graver than the one under section 325, P. P. C., because the former belongs to the stock of "culpable homicide" and is non‑bailable and carries liability for a higher term of imprisonment even though in the alternative for fine, and the latter, i.e., an offence under section 325, P. P. C., relates to "hurt", which is bailable and entails in the maximum a lesser term of imprisonment.

10. The two offences in their respective contents sometimes overlap each other. Under clause Eighthly of section 320 "any hurt which endangers life" is grievous for the purposes of section 325, and in reference to an offence under section 304 (ii), P. P. C., it may be stated that a person who voluntarily inflicts injury such as endangers life must always, except in the most extraordinary and exceptional circumstances, be taken to know that it is likely to cause death. To my mind the distinction between the two offences, in particular cases, can best be discerned and stated in terms of the actual and direct result caused. Where a victim is actually killed by the grievous hurt which endangers life the degree of fatality of the injury is certainly more than where the victim survives that injury. In the former case the assailant must always know that he is likely to cause death and as such the offence ordinarily would fall under section 304 (ii), P. P. C. But even so, in spite of the fatal result in the death of the victim, the Court can hold from various factors in the case pointing to that direction, for example, the weapon used by the accused, the amount of force employed, the location of the injuries, and the impulsiveness of the incident, that the accused had intended to cause no more than grievous hurt and that the likelihood of the grievous hurt proving fatal was not within the ordinary compass of his knowledge.

11. I consider that Muhammad Gut has rightly been convicted in this case under section 304 (ii), P. P. C. Fie delivered his blow on the head of the deceased with a very severe force which caused an extensive fracture of the skull from end to end and proved fatal. He can be safely burdened with the knowledge that his act was likely to cause death, apart from his mere intention to cause grievous hurt. The sentence awarded to him is not at all excessive. The deceased was quite justified in rounding up the goats and taking them to the pound. The resistance on behalf of the appellants was totally unjustified and the assault by Muhammad Gut added injury to insult. I, therefore, reject his appeal.

12. The case of Ghuncha Gul stands on a different footing. In the first place, his conviction under section 325 read with section 34, P. P. C., covering his constructive liability in causing grievous hurt to the deceased is untenable when his co‑accused, the principal offender, i.e., Muhammad Gul, was not convicted for the same offence but for a different offence under section 304 (ii), P. P. C. The constructive liability under section 34, P. P. C relates to cases where several accused persons do similar or diverse acts in furtherance of their common intention and liability is shared by each one of those persons in the same manner as if each of them alone and unaided had done the whole deed. In such a case each one of them shall be guilty for "the one offence" committed by them all in the final result, regardless of any individual conduct or action, producing a separate result and constituting a separate offence. In other words, it is not possible in the application of section 34, P. P. C., to so grade the offence committed, as to form one offence in the case of one accused person and another in the case of another on their separate individual actions, as this would disrupt the unity and commonness of intention which is the main requirement of section 34, P. P. C. For example, in a ‑case of a murderous assault committed in furtherance of common intention by several persons, it is not possible to hold that while committing murder in furtherance of their common intention within the meaning of section 34, P. P. C. 'A' alone is guilty of murder, 'B' of culpable homicide not amounting to murder, and 'C' just of grievous hurt. To split up individual actions for determining separate offences of several persons concerned in a crime is possible only where a case goes out of the ambit of section 34 and conversely where section 34 P. P. C., is attracted to a case, an attempt to discriminate the role of several accused persons in terms of the act committed by each of them is fruitless.

13. It would be a contradiction in terms to hold that while an accused person did not participate in the act of culpable homicide committed by his co‑accused owing to absence of common intention, he is guilty of the offence of grievous hurt at the same time for sharing the intention of his co‑accused to that extent. If the common intention in causing the offence actually committed is eliminated, section 34, P. P. C., goes out of the picture altogether. In this context it will be profitable to refer to a passage from the decision of their Lordships of the Privy Council reported as Barendra Kumar Ghosh v. Emperor (A I R 1925 P C 1) :‑ "Section 34, P. P. C., 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, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part because they refer to it." In the view I have expressed regarding the purview of section 34, P. P. C., I consider that the conviction of Ghuncha Gul under section 325/34, P. P. C., cannot be maintained. I do not see how it is logical to hold that while he did not participate in the act of culpable homicide not amounting to murder by his co‑accused owing to the absence of common intention, he is liable for the offence of grievous hurt arising out of the same act.

14. It would have been possible to convict Ghuncha Gul under section 325/114, P. P. C., for having abetted, while present, the offence of grievous hurt although the act abetted in its result assumed a different character when executed by the principal offender Muhammad Gul on his own intention or culpable knowledge of his act. The distinction between abetment as defined m section 107, P. P. C., and constructive liability under D section 34, P. P. C., lies in this, that under the former an offender can be convicted for the offence which he actually abets regardless of the ultimate result achieved whereas under section 34 all the persons accused of the offence are in the eyes of law united in their intention in carrying out of the actual act committed in furtherance of their common intention.

15. The facts brought out on the record do point out that both Ghuncha Gul and Muhammad Gul had come together at the spot with the common intention of rescuing the goats but it is difficult to hold that Ghuncha Gul had in any manner abetted the attack by Muhammad Gul on the deceased, as it is futile to infer incitement from what Ghuncha Gul is said to have spoken in Pushto before Muhammad Gul attacked the deceased, as nobody claims to have understood the same. To think that be had incited him in Pushto would be presuming something without any legal or reasonable basis. For all we know, Ghuncha Gul may have only requested the co‑accused to separate him from the deceased. The actions of Ghuncha Gul in this occurrence on their legal analysis do not disclose any offence against him. Therefore, giving him the benefit of doubt, I acquit him. He shall be released forthwith. A.H. Order accordingly.