1977 SCMR 340 (PLP)

Ferozuddin Attorney for Appellant. Faiz Muhammad, Advocate‑General of West Pakistan (Abdul Qayum, Advocate Supreme Court with him) for the State. Ijaz Ali Attorney for the State. MUHAMMAD MUNIR, C. J.‑‑.This is an appeal from a judgment of the High Court of West Pakistan at Lahore confirming the conviction and sentence of appellant Hayat under sections 302 and 324 of the Pakistan Penal Code. Together with two other persons who were acquitted Tahri and Muhammad Yar, the appellant was tried by the Sessions Judge, Shahpur, for the murder of Natu and causing injuries to Naurang and Malli. On being found guilty Muhammad Yar was sentenced to death and Tahri and the appellant to transportation for life on the charge of murder, and all three to one year's rigorous imprisonment on the charge of causing hurt. On appeal the High Court upheld the convictions and sentences. The murdered man was the brother of the two injured persons. Jalloo, their father, is the brother of Tahri and is closely related to Muhammad, appellant Hayat, the two acquitted persons and one Bati who was discharged by the Committing Magistrate. Thus the prosecution party arid the accused party are related to one another. For some years before the transaction charged, however, a dispute between these parties had exited over an exchange of land alleged to have taken place between Jalloo and Bati, and proceeding: under sectionr107 of the Criminal Procedure Code against both parties were pending when Natu was murdered. On the morning of the 6th May, 1955, Naurang had cut off a bough of beri tree and removed it to his behk. Tahri sent on of his servants to Jalloo's behk demanding the return of the bough on the ground that the land on which the tree stood belonged to hint. Naurang refused to accept the demand, claiming the tree to be his own property. Shortly afterwards Tahri, Muhammad, the appellant and the two acquitted persons armed them?selves with spears and sticks and proceeded to Jalloo's behk to remove the bough by force. At that time Naurang and his brothers Natu and Matli were: attending tit their cattle in the behk. Shouting that they had come to see how Naurang could retain the bough, the assailants surrounded the three brothers who attempted to escape by running to the north. They were, however, chased and Tahri and Muhammad Yar overtook Natu and struck him with their spears wounding him mortally. Naurang was attacked by Tahri with a spear and so was Matti by Hayat. At the trial Jalloo, Mst. Fazian, Naurang and Malli gave detailed evidence of what they claimed to have witnessed. As the eye‑witnesses were all related to the deceased and it appeared that Bati had been falsely implicat?ed, the Sessions Judge thought that the evidence required careful scrutiny and that only those persons could be convicted against whom the evidence made out a clear case. He, therefore, acquitted Salihon and his son Hayat against whom there was no corroboration in the form of recoveries of blood?stained weapons, as there was against Tahri and Muhammad Yar, and to whom no prominent part was ascribed by the witnesses. The High Court agreed with this appreciation of evidence and dismissed the appeal. As Matti had attributed his spear injury to Hayat, the High Court thought that there being no reason for the victim to substitute an innocent person for his assailant the evidence of Hayat's having taken part in the criminal transac?tion could be safely accepted. When the petition for special leave to appeal from the judgment of the High Court came up before us we saw no reason for any further considera?tion of the cases of Tahri and Muhammad Yar. In the case of Hayat, however, we gave leave to appeal in order to consider the question whether the ocular evidence against him could have been rightly accepted but having heard counsel we arc unable to hold that any special reason exists for interfering with the High Court's finding that the, appellant was one of the persons who took part in the criminal assault on the deceased and his brothers. Though leave was not given on this ground we have, however, heard counsel at length also on the question whether the appellant could be convicted of murder. On this part of the case the High Court has said:‑‑‑ "We are not concerned with tile accused persons who have been discharged or acquitted in this case. The learned trial Judge did not apply section

149. P. P. C. to the facts of the case but held that the offence of murder was brought home to the three appellants by virtue of section 34, P. P. C. We are inclined to agree with him in this respect. All the three appellants according to the unanimous statements of the prosecution witnesses, carried spears. This is borne out by the medical evidence in respect of the injuries which these appellants are said to have caused. It is significant that the seat of location of the injuries was in each case a vital part like the abdomen. Considering the dangerous nature of the weapons carried by the three appellant; and the way in which they plied their weapons so as to aim them at vital parts, no doubt is left in our minds that all these three appellants were actuated by a common intention to kill any one out of the com?plainants who came in their way. Their primary object may have been to retrieve the willow log that had been cut from the tree, but in pursuing that object these three appellants at least, formed the common intention of committing murder which was apparent from the way in which they conducted themselves during the incident. Naurang and Malli P. Ws. were fortunate to escape serious injury because they ran away and not because the accused persons were merciful to them. We, therefore, think that the appellants were rightly convicted of muffler under section 302, read with section 34, P. P. C? On the finding that the assailants were actuated by a common intention to kill any one out of the complainants, who came in their way, the application of section 34 to make them all liable for murder presents no difficulty. It is, however, contended on behalf of the appellant that he took no part in the assault on the deceased and that the common object of the assailants being to regain possession of the bough it could not be held that he shared the common intention of the other two persons who killed Natu. We are unable to accept this contention because the evidence shows' that after their demand for the return of the bough was refused they armed themselves with lethal weapons like spears and sticks, went in a body to the behk of Jalloo, shouted that they had come to see how Naurang could retain possession of the bough, without making any attempt to remove the bough surrounded the three brothers, attacked all three of them when they were attempting to flee killing one of them on the spot and injuring the other two and they lifting the bough marched back triumphantly to their dera. These facts conclusively prove that the assailants' intention was to kill and then to take away the disputed bough. Section 34 was, therefore, clearly applicable tot their case and though the appellant himself took no part in the assault on Natu deceased, the killing must be held to be in furtherance of the common intention of those who actually killed him and of the appellant. On this finding there is no ground for our interference and we dismiss the appeal. Appeal dismissed.