P L D 1961 Dacca 420 (PLP)

MURSHED, J.‑The five appellants before us were charged under section 304 read along with section 149 of the Pakistan Penal Code. They were tried by Mr. A. B. Khan, Assistant Sessions Judge, Second Court, Pabna, with the aid of assessors.

2. The prosecution case, in substance, is as follows :‑ On the 10th of may 1959, corresponding to the 26th of Baisakh, 1366 B. S., one Khorshed Ali Pramanik (P. W. 1) having heard some noise and shouts proceeded towards the house of one Abdul Kader as the noise was coming from that direction. He found that the said Abdul Kader was on one side and some of the appellants on the other side were involved in a scuffle near a fence appertaining to the homestead of Abdul Kader. He intervened and separated the parties. Thereafter Abdul Kader went inside his house. Jonab Ali, Sadek Ali and Majid left the house and went towards the house of Jonab Ali. Shortly thereafter appellants Jonab Ali, Abdul Barik and Abdus Sattar came to the house of Abdul Kader armed with lathis. They came from the direction of the house ' of Jonab Ali, which is to the contiguous 1north of the house of Abdul Kader. Soon thereafter appellants Shamser Mandal and Abdul Wadud alias Wahed also came to the house of Abdul Kader armed with lathis. Upon an order given by appellant Shamser Mandal to beat Abdul Kader, appellants Abdul. Barik, Abdul Wadud, Jonab Ali and Abdus Sattar attacked Abdul Kader and began to beat him. Appellant Abdul Barik struck a lathi blow on the head of Abdul Kader who fell down unconscious on the ground. Then appellants Abdul Wadud, Jonab Ali and Abdus Sattar beat Abdul Kader with lathis on the thigh and chest of Abdul Kader. On the arrival of other persons to the scene of occurrence the appellants ran away. A Medical man examined Abdul Kader after the occurrence and stitched his head injury. Abdul Kader did not regain his consciousness and died at about 11 in the night. One Mithu Pramanik (P. W. 5) lodged the first information report at the thana on the same date.

4. After completion of the investigation in this case and a preliminary enquiry by a competent Magistrate, the appellants were committed to the Court of Session to stand their trial on the aforesaid charges.

4. The appellants pleaded not guilty to the charges. They have suggested that the injuries found on the person of the deceased Abdul Kader could have been caused by various circums tances other than an assault by the appellants.

5. The assessors were unanimously of the opinion that the appellants were guilty under section 304/Part II read along with section 149 of the Pakistan Penal Code.

6. The learned Assistant Sessions Judge on an appraisal of the evidence of this case, accepted such unanimous opinion and came to the same finding, namely, that the appellants were guilty under section 304, Part II read along with section 149 of the said Code. He accordingly convicted the appellants under the afore said sections and sentenced each of them to suffer rigorous imprisonment for five years.

7. This appeal is directed against the conviction of the appellants and the sentence pronounced on each of them as stated above.

8. Mr. P. C. Basu, who appeared for the appellants before us, has taken us through the judgment passed by the learned Assistant Sessions Judge and the evidence in this case. He has argued that this case virtually depends on the evidence of two eye witnesses and both of them have been contradicted on a vital point. The learned Advocate has, therefore, argued that no reliance should be placed on their evidence, with the result that the appellants are entitled to an acquittal.

9. Mr. Basu has next argued that, if the evidence of the aforesaid witnesses to the effect that the appellant Abdul Barik caused the injury on the head of the deceased is. disbelieved, then neither Abdul Barik nor anybody can be held to be guilty under section 304, Part II of the Code.

10. Mr. Basu has further argued that, in the light of the facts and circumstances of the case, the charge against the appellants under section 304 read along with section 149 of the Code cannot stand. It was argued before us that in the charge the common object of the unlawful assembly described was "committing criminal assault on deceased Abdul Kader". It was also contended that, unless it can be held that the common object of the unlawful assembly was to commit culpable homicide, there can be no application of the first clause of section 149 of the Pakistan Penal Code. Finally, Mr. Basu has argued that, at the highest the appellants can be convicted under section 147 of the Pakistan Penal Code simpliciter.

11. With regard to the prosecution case set out above, the direct evidence comes from P. W. 1, Khorshed Ali Pramanik and P. W. 6 Abdul Hai. The learned Assistant Sessions Judge has described them as independent witnesses, and we also think that the aforesaid witnesses are not shown to be interested either in the deceased or in the prosecution case as such. Moreover, nothing has been shown as to why these witnesses should falsely implicate the appellants before us. On the point that the appellants formed an unlawful assembly and that they had gathered at the house of the deceased in order to assault the deceased, they have been fully corroborated by the evidence. of the other witnesses in this case as well as by the attendant facts and circumstances. The difficulty, however, arises from the fact that, whereas in the trial Court the said witnesses, namely, Khorshed Ali Pramanik and Abdul Hai, have stated that appellant Abdul Barik gave a lathi blow on the head of the deceased, they have been completely contradicted by their statements before the investigating officer with regard to this point. The importance of this point lies in this fact.

12. The medical man, who conducted the post‑mortem examination on the dead body of the deceased Abdul Kader, found four injuries, w4ich are as follows :‑ "(1) One stitched and depressed would 3" long at the mid fronts parietal region of the head. The stitches were of silk worm gut. (2) One contused wound with swelling of the whole of left knee joint. (3) One scratch wound 5" x 1/8" at the right chest in front. (4) One scratch wound 22" x 1/10" at the left chest in front." "On dissecting injury No. 1, a haematoma of about 4 oz. of blood was seen on either side of the cut. The frontal bone was found to possess fissured fracture 3" long. Within the cranial cavity a haematoma of about 3 ozs. of blood was found resting on the membrane. The membrane and the brain tissues were congested. The death in my opinion was due to compression and coma as a result of injury No.

1. All the above injuries were antimortem and homicidal in nature." It will be seen that the most serious injury found on the person of the deceased was the fracture on the head which caused the accumulation of the blood in the membrane. This was a fatal blow. In view of the fact that P. Ws. 1 and 2 as well as the other corroborating witnesses have been contradicted on this point by their statements to the investigating officer, we find that the witnesses were not prepared to tell the truth, in so far as this point is concerned.

13. The question is, should we on this account completely disbelieve all the prosecution witnesses. In this connection the following facts stare us in the face.

14. In the first place, the injuries on the person of the deceased and the manner and circumstances in which he received those injuries are fully corroborated by the facts and circums tances of the case. The fact that the appellants bad come to the house of Abdul Kader and that they assaulted the deceased with lathis upon being ordered to do so by appellant Shamser Mandal, is the consistent evidence of all the witnesses in this case. We have no reason to disbelieve this part of the prosecution case. If we discard the prosecution evidence to the effect that the appellant Abdul Barik caused the injury on the head of the deceased, it is impossible to find who is responsible for the injuries that caused the death of the deceased. In this connection, we must remember that there is no charge under section 304 read along with section 34 of the Pakistan Penal Code. It must necessarily follow that none of the appellants could be convicted under section 304 of the Pakistan Penal Code simpliciter.

15. We now take up the most important point, namely, the applicability of section 149 of the Pakistan Penal Code to the facts and circumstances of the case.

16. The section 149 of the Pakistan Penal Code reads as follows :‑ "If an offence is committed by any member of an unlawful assembly 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, every person who at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." On an analysis of this section it will be found that it is divided into two parts.: (1) an offence committed by a member of an unlawful assembly in prosecution of the common object of that assembly ; and (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. It is clear that the two are separate alternative clauses.

17. It is obvious that the applicability of section 149 of the Pakistan Penal Code to a particular case will depend upon the peculiar facts and circumstances of that case. Each case must be decided upon its own facts. Furthermore, it seems to be patent that the phrase 'in prosecution of in the two clauses have different shades of meaning. The word `prosecution'. is derived from a latin word which means 'to follow'. The ordinary meaning of the phrase 'in prosecution of is 'in pursuance of,' 'in fulfilment of,' 'in execution of,' 'in the course of, and various other shades of meaning. In the first clause the phrase 'in prosecution of does not mean the same as the phrase 'during the prosecution of the common object of the assembly'. In other words, the act must be one which, upon the evidence, appears to have been done with a view to accomplish the common object attributed to the members of that assembly. The words 'in prosecution of the common object' in the first clause of this section must be strictly construed as equivalent to 'in order to attain the common object.' When that is the case, every person, who is engaged in prosecuting the same object, may well be held guilty of an offence which fulfils or tends to fulfil the object which he is himself engaged in prosecuting. No offence, however, executes or tends to execute the common object, unless the com mission of that offence is involved in the common object. When this is not the case, the offence committed, not being committed in prosecution of the common object, in its strict sense, may yet fall under the second branch.

18. The aforesaid view that we have taken with regard to the interpretation of the terms of section 149 of the Pakistan Penal Code is supported by the leading case of The Queen v. Sabid Ali and others, which is a decision of a Full Bench of the Calcutta High Court. The case was reported in 20 Weekly Reporter (Cr.)

5. In the aforesaid case Phear. J., has observed as follows:‑ "The section describes the offence which is to be so attributed under two alternative forms, viz., it must be either‑ "1st‑An offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly. "2nd‑An offence such as the member of that assembly knew to be likely to be committed in prosecution of that object. "Now, inasmuch as the continuance of the unlawful assembly is, by the definition of section 141, made conterminous with the prosecution of the common object, it seems tolerably clear that the Legislature must have employed the words "prosecution of the common object" with some difference of meaning in these two passages respectively. Also the mere fact that the Legislature thought fit to express the second alternative appears to show very distinctly that it did not intend the, words "in prosecution", which are found in the first, to equivalent to "during the prosecution", for if they were, then the second alternative would have clearly been unnecessary. And a com parison with this passage of the language which is used in section 460, where the Legislature makes all the persons concerned in committing a burglary punishable with transporta tion for life, if any one of the members at the time of the committing of burglary, causes death, etc., strongly bears out this view. I am of opinion that an offence, in order to fall within the first of the above alternatives, i.e., in order to be committed in the prosecution of the common object, must be immediately connected with that common object by virtue of the nature of the object; for instance, if a body of armed men go out to fight, their common object is to cause bodily injury to their opponents, and in that case death, resulting from injury caused, would be homicide committed in prosecu tion of the common object. "And an offence will fall within the second alternative if the member of the assembly, for any reason, knew before‑hand that it was likely to be committed in the prosecution of the common object, though not knit thereto by the nature of the object itself."

19. The aforesaid decision is, in our opinion, an authority for the proposition that has been laid down above in the said Full Bench decision of the Calcutta High Court. That decision has been followed in a number of decisions of the various High Courts of the subcontinent. We may, however, refer to the following cases: In a decision of a Division Bench of this Court in the case of Joydhar and others v. The King it was held that section 149 of the Penal Code is not intended to subject a member of an unlawful assembly to punishment for every offence which is committed by one of its members during the time they are engaged in the prosecution of common 'object. In older to bring a case under section 149 of the Penal Code, the act must be done with a view to accomplish the common object of the unlawful assembly or it must be proved that the offence, though committed in prosecution of the common object of the unlawful assembly is one which the accused knew would be likely to be committed in prosecution of the common object. In considering the application of section 149 of the Penal Code to the facts and circumstances of the case before the Court, Ellis, J., (as he then was) has observed as follows:‑ "It must not be forgotten in this case that the common object of the assembly as recited in. the charge was to assault Megu, and in the charge under section 149 it was charged that these particular accused were members of an unlawful assembly and two of its members, Joydhar and Abdul Hamid Khan, committed murder of Megu in prosecution of the common object of that assembly. On this point both Mr. Huq and Mr. Malik claim that Joydhar and Abdul Hamid Khan went beyond the common object of the unlawful assembly and they themselves are responsible for their individual acts but no constructive liability attaches to the other accused under section 149, inasmuch as' the murder of Megu was not com mitted in prosecution of that common object. The common object of the unlawful assembly was to assault Megu. It must also not be forgotten that although 13 members of the unlawful assembly are said to have participated in its common object, the evidence establishes that they carried one juthi, two halangas, that is three weapons which might be described as deadly weapons, and all the rest were armed with lathis. From this fact it is possible to infer that their common object was merely to give Megu a beating. There is also the important fact that the medical evidence discloses that Megu died or would have died of the three injuries for which Joydhar and Abdul Hamid Khan were responsible. It is not the prosecution case, nor is it the medical evidence, that Megu died as a result of collective beating of a number of persons. Remembering these facts and remembering the common object as recited in the charge we think that we must give effect to the arguments addressed to us on this point and hold that these particular accused cannot be held constructively liable under section 149 for the death of Megu."

20. In the case of In re. Manakkal Kumaran and others (A I R 1942 Mad. 446) which is a decision of a decision Bench of the Madras High Court the facts are as follows:‑ "The accused insulted and annoyed the women‑folk who had come to attend a festival which was being celebrated in a temple: The trustees of the temple and their men intervened; a scuffle ensued in which blows were exchanged and the accused were driven out. About an hour later the accused returned in order to have their revenge on the 'trustees for the rough treatment they had received. Accused 1 and 2 who were armed with a penknife and dagger respectively came running along with their companions towards the trustees shouting out that none of the trustees were to be left alive. All the accused went directly to the place where the trustees were conducting the proceedings and accused 2 immediately stabbed one of the trustees in the abdomen and accused stabbed another trustee also in the abdomen as a result of which the trustees died. The rest of the accused used their hands in beating of the men of the party of the trustees and all then bolted." It was held that "boastful and threatening expressions were frequently used by villagers and the use of the threatening words that none of the trustees should be left alive by accused 1 and 2 was not sufficient evidence to show that the rest of the accused shared a homicidal intention with them. In all the circumstances of the case and the nature of the weapons used, the evidence was insufficient to show that the common object of the accused was murder. Their common object was only to cause hurt." It was further held that "the actions of accused 1 and 2 could not be considered as indivisible but must be analysed into two parts. In so far as they were prosecuting the common object of the assembly accused 1 and 2 intended to cause hurt and did cause hurt to the deceased.' But they also intended to kill the deceased or cause them such bodily injuries as would be sufficient to cause their deaths. In conceiving and carrying out that intention they were not acting in prosecution of the common object but in prosecution of private objects of their own. Accused 1 and 2 were therefore, guilty of murder and the rest of causing hurt under section 324, Penal Code." King, J., in delivering the judgment has observed as follows: "Nor do we think, if we confine overselves to clause (1) of section 149, that the language used presents any difficulty. The plain literal meaning of 'in prosecution' of `would seem to be' 'in order to achieve or attain'. 'Prosecution' is divided from latin, and the root meaning of the word is 'to follow'. When a person has already attained or caught up with his object and passes beyond it he can no longer be said to be pursuing or prosecuting it. We think that the actions of the two appellants cannot be considered as indivisible, but must be analysed into two parts. In so far as they were prosecuting the common object of the assembly, these appellants intended to cause hurt and did cause hurt to Raman and Narayanan. But they also intended to kill Raman and Narayanan or cause them such bodily injuries as would be sufficient to cause their deaths. In conceiving and carrying out that intention they were not acting in prosecution of the common object, but in prosecution of private objects of their own. Difficulties, however, undoubtedly arises from the fact that the phrase `in prosecution of that object' occurs in clause (2) of the section. It is not necessary for us in disposing of this appeal to find specifically whether appellants 3, 4 and 5 had or had not the knowledge required by that clause because, as the learned Public Prosecutor himself pointed out, they were not charged with having that knowledge and had no direct opportunity therefore of establishing their want of it. All we need say now on this point is this that if the word 'or' in section 149 is given its literal meaning, and if the expression 'in prosecution of in both clauses is given exactly the same interpretation, then it seems to us that the section is unintelligible. This was recognised nearly 70 years ago in 20 W. R. Cr.

5. We do not find therefore that a consideration of the section as a whole presents any impediment to our holding that 'in prosecution of the common object' in clause 1 must be strictly construed as equivalent to 'in order to attain the common object." Here we may also refer to the following case of Raghunandan and others v. Emperor.

21. Our interpretation of section 149 of the Penal Code would also follow from the well known principle that a provision of the statute has to be construed as a whole.

22. It will be seen that in this case it is nobody's case that the second clause of section 149 of the Penal Code is applicable to the facts and circumstances of this case. There is no such charge in this case and its facts and circumstances completely negative the case that the appellants knew that culpable homicide would be committed in the course of the prosecution of the common object of that unlawful assembly.

23. The common object of the unlawful assembly, as set out in the charge, was to commit criminal assault on the deceased. From the facts and circumstances of the case, there can be no manner of doubt that the common object of the appellants was simply to beat the deceased. It is equally patent that to commit culpable homicide or to cause the death of the deceased was not the common object of the appellants. It must, therefore, follow that upon the evidence in this case the causing of the death of the deceased was not done with a view to accomplish the common object which was merely to assault or beat the deceased. In these circumstances, we hold that section 149 of the Penal Code does not apply to the facts and circumstances of the case.

24. We will now consider the question: what is the offence which the appellants have committed in the light of our findings as stated above? In as much as we have found that it is difficult, from that portion of the evidence in this case which we have accepted, to attribute to individual appellants the injury which they caused on the person of the deceased, none of the appellants can be convicted under section 304 of the Penal Code simpliciter. The evidence which we have accepted, however, would establish that the appellants were members of an unlawful assembly with the common object of committing criminal assault on the deceased. We have also held that in pursuance of the common object of the unlawful assembly the deceased was assaulted by some of the appellants: They are, therefore, guilty under section 147 of the Penal Code.

25. We accordingly alter their conviction under section 304 Fart 11 read along with section 149 into one under section 147 of the Penal Code. We modify the sentence of five years, rigorous imprisonment passed on each of the appellants into a sentence of rigorous imprisonment for a period of one year and six months each under section 147 of the Pakistan Penal Code.

26. The appeal is dismissed with the modification of the conviction of the appellants and the sentence passed on each of them, as stated above. KHAN, J.‑I agree. K. B. A. Appeal dismissed: Sentences altered.