P L D 1959 (W (PLP)

HABIBULLAH KHAN, J.‑Four persons, namely, Sher Afzal, Mahmud Allahdad and Miskin of village Charshin, situated in the jurisdiction of Police Station Hassan Abdal, were tried on a charge under section 302, P. P. C., read with section 34 in the Court of Sardar Ataullah, Sessions Judge Campbellpur. Mahmud was further charged under section 307, P. P. C., Sher Afzal was convicted under section 302, P. P. C., and sentenced to transporta tion for life, while the remaining three were found guilty under section 326, P. P. C., read with section 34 and were awarded 6 years' R. I. each. Mahmud was acquitted of the charge under section 307, P. P. C. All of them have filed a joint appeal. The Additional Advocate‑General has also appealed on behalf of the State against the acquittal of Mahmud, Allahdad and Miskin on the murder charge.

2. Out of the appellant Sher Afzal and Mahmud are brothers, while Miskin is the son of their father's sister. Allahdad is their servant. Muhammad Nawaz, the murdered man in the case, was also their relation inasmuch as his niece is the wife of Mahmud appellant. The principal eye‑witness in the case is Miskin (P. W. 81 who is a brother of the deceased. The other material witnesses are Muhammad Yunas (P. W. 9), Faqir Mohammad (C. W. 1) and Mir Afzal (C. W. 2). Muhammad Yunas is a nephew of the deceased, but his .sister is the wife of Mahmud appellant. Faqir Muhammad is not related to either party. The connection of Mir Afzal with the parties will be mentioned later when his evidence comes up for discussion.

3. It appears, from the evidence on the, record that about 10 years prior to the occurrence Muzaffar Khan, the father of Sher Afzal and Mahmud appellants, had mortgaged a piece of land to the deceased for a consideration of Rs.

600. After a few years Sher Afzal and Mahmud approached the deceased and told him that since their father had paid back the mortgage money, he should arrange to enter a mutation of redemption and return the land. The deceased denied having received the mortgage‑money and declined to give back the land. This dispute over the land strained their relations. Again, some‑5 or 6 years before the present incident one Sadiq was murdered, and Allahdad appellant, Faruq a brother, Fazli Ilahi the father, and Feroz an uncle, of Miskin, who was also a maternal uncle of Mahmud and Sher Afzal appellants, were charged and. tried. Feroz and Allahdad were convicted and sentenced to death and four years' R. I. respectively, while the other two were acquitted. In this case the deceased had given evidence for the prosecution against the accused persons. After about one or two years Muzaffar father of Sher Afzal and Mahmud was found murdered. Some persons were charged, but they were let off for want of evidence. Later Sher Afzal and Mahmud appellants gave out that their father had been murdered by Muhammad Nawaz deceased. Muhammad Nawaz took an oath of innocence, but it seems that Sher Afzal and Mahmud were not satisfied, and they suspected Muhammad Nawaz for having a hand in the murder of their father. Lastly, a year or 1 before the occurrence the deceased, his brother Miskin and others on one side, and Mahmud and Sher Afzal appellants and their brother Iqbal on the other were bound down under section 107, Cr. P. C., to keep the peace.

4. According to the prosecution story, Muhammad Nawaz deceased, his brother Miskin (P. W. 8) and Mir Afzal (C. W. 2) were on their way back to their village from Campbellpur on the 1st December 1957, when they happened to pass in front of the hujra of Sher Afzal and Mahmud at about 11 a.m. Sher Afzal, Mahmud, Allahdad and Miskiri were present in the Hujra. Sher Afzal invited their to a smoke. Accordingly Muhammad Nawaz, Miskin and Mir Afzal entered the courtyard of the hujra and seated themselves on cots there. Sher Afzal asked his servant Allahdad to prepare chilam. Allahdad was busy with rubbing tobacco, when suddenly Mahmud whipped out a knife, attacked Muhammad Nawaz, and stabbed him in the abdomen. Muhammad Nawaz got up from the cot, but in the meantime Sher Afzal delivered him a knife‑blow on his chest. Thereafter Sher Afzal, Mahmud, Allahdad and Miskin, all the four, gave blows to the deceased with their respective knives. While his brother was being attacked, Miskin had moved some distance to save his life. Mahmud entered the kotha of the hujra, came out with a rifle and fired a shot at Miskin, but it proved ineffective. Thereafter Miskin took to his heels in the direction of his house, leaving his injured brother on the spot. Muhammad Yunus (P. W. 9) whose shop is at a short distance from the hujra of the appellants, had got up on hearing the sound of the shot. He was proceeding towards the hujra when Miskin who was running met him in the way. Miskin told him what he had seen. When Muhammad Yunus arrived in the hujra, he found Muhammad Nawaz lying dead. The four appellants armed with knives were present there. He then returned to his house, where after Miskin went to Police Station Hassan Abdal, situated at a distance of about 10 miles from his village, and lodged a report at 3 p.m. Muhammad Yusaf Khan S. 1. (P. W. 10) reached the village the same evening. He found the dead body of Muhammad Nawaz lying in the courtyard of the hujra of Sher Afzal and Mahmud. Blood‑stained earth was collected from the scene of occurrence.

5. In their statements at the trial all the appellants repudiated the charge and attributed it to the instigation of their enemies.

6. According to the medical evidence, the deceased had received 18 injuries, out of which 16 were incised wounds, one an abrasion, and one a scratch. The incised wounds were all caused with sharp‑edged and pointed weapons. The abrasion was the result of a friction, while the scratch was caused by the point of "something''. Two of the incised injuries on the chest, which have been described by the Doctor as No. 1 and No. 9, were fatal and individually sufficient to cause death in the ordinary course of nature. Injury No. 1 had perforated the aorta, while injury No.' 9 had pierced and cut the spleen and the left lung. Out of the incised injuries 6 were on the abdomen, 2 on the chest and 2 on the head.

7. Mr. Peer Bakhsh who appeared for the appellants con tended, that the prosecution story was a pure fabrication, that nobody saw the murder, that the deceased appeared to have been killed somewhere else and later his dead body was thrown in the hujra of his clients, and that his clients were charged on suspicion. He also suggested in the alternative, that it was possible that the deceased might have been injured somewhere else and while or his way to his house he fell down in the hujra and expired there.

8. We feel no hesitation in declaring that the theory that the deceased succumbed to his injuries in the hujra of the appellants after having been attacked and wounded somewhere else, or that his dead body was thrown inside the hujra after having been brought from another place, is preposterous on the face of it and cannot be seriously entertained for a moment. It will be recalled that the occurrence took place in broad‑day light, and if the dead body had been brought from outside and deposited in the hujra which is situated inside the village abadi, it must have been seen by somebody. In that case there should not have been, any blood lying in the courtyard of the hujra, and there should have been present some marks of dragging, unless the body had been transported with the usual ceremony. And if the deceased after having been attacked and wounded some where else had reached the village and walked into the hujra then some trail of blood must have been found outside in the lane. It is admitted that no such blood or marks of dragging were observed anywhere else inside or outside the village. It is true that the origin of the blood found inside the hujra could not be ascertained by the Serologist due to its disintegration, but this fact by itself cannot provide material for an argument, as advanced by Mr. Peer Bakhsh, that the blood was of any being other than human. We have carefully examined this aspect of the case in the light of the evidence on the record and are satisfied that Muhammad Nawaz was attacked and murdered inside the hujra.

9. The main eye‑witness in the case is Miskin. No doubt be is a brother of the deceased, but this fact by itself is not a sufficient ground for dismissing his evidence, as false. We are unable to accept the contention that since the dead body was found in the hujra of Sher Afzal and Mahmud, they were charged along with Allahdad and Miskin on mere suspicion. There is sufficient evidence on the record to prove beyond any reasonable doubt that Miskin was present with his deceased brother when the latter was attacked. Muhammad Yunus was the first man to be attracted to the spot on hearing the shot. He saw Miskin running from the scene of occurrence in the direction of his house. Miskin related the story to Muhammad Yunus and charged the four appellants within a few moments of the incident. Muhammad Yunus himself saw the four appellants armed with knives present in the hujra near the dead body of Muhammad Nawaz when he arrived there. We do not see any reason why Muhammad Yunus should incriminate the appellants falsely, when we find, that. the wife of Mahmud appellant is his sister. For the same reason we cannot doubt the veracity of Miskin, for the wife of Mahmud is his niece. In view of this relationship, we are unable to appreciate the argument that Miskin and Muhammad Yunus charged their own relations on, suspicion without having seen them.

10. The other witness who is alleged by Miskin and Muhammad Yunus to have seen the incident is Mir Afzal. He was mentioned as an eye‑witness in the F. I. R. In the committal Court he stated that he was not an eye‑witness. Thereupon he was declared hostile and the Public Prosecutor cross‑examined him with a view to bringing out certain facts to show that he was favourably disposed towards the defence. He, however, made little efforts to ask the witness to state what he had actually seen. He has been now examined as a Court witness by the Sessions Judge Campbellpur under section 428, Cr. P. C., in compliance with the order of this Court dated the 4th February 1959. He evidently seems to have found himself in a very difficult position when giving evidence in the case. While on the one hand he is a partisan of the deceased and has also strained relations with the appellants' party, on the other he is connected with the latter through marriage‑ties. It is in evidence that a niece of Sher Afzal and Mahmud appellants, is the wife of a first cousin of Mir Afzal. Further, a sister of Mahmud and Sher Afzal is the wife of one Sikandar whose one niece is the wife of this Mir Afzal, while his other niece is married to his brother Faqir. Under these circum stances Mir Afzal did not find it quite easy to give direct evidence against his own relations. He has, however, stated that he was returning from Campbellpur to his village in the company of the deceased and Miskin, that when they reached the hujra they saw the four appellants, Sher Afzal, Mahmud, Allahdad and Miskin sitting there, that Sher Afzal invited them to have a smoke, that Muhammad Nawaz deceased and Miskin entered the hujra but he (the witness) proceeded on his way towards his house, that he had gone a distance of 40‑50 paces when he heard the report of a gunshot from the direction of the hujra, and that subsequently he learnt that Muhammad Nawaz had been murdered in the hujra of the appellants. It will be noticed that' while narrating the story he has very cleverly absented himself from the scene of the attack in order to escape the charge of giving ocular evidence against the appellants. However, his evidence, so far as it goes, makes it clear beyond any reasonable doubt that Muhammad Nawaz was killed in the hujra of the appellants, that all the four appellants were present there, and that Miskin was with the deceased when he was murdered. Being virtually a pro‑defence witness, the testimony of Mir Afzal cannot be rejected as completely false, and if what he has stated is accepted as truth, though not the whole truth, then the claim of Miskin that his brother was murdered in his presence is fully substantiated.

11. There is also another witness Fhqir Muhammad who was alleged to be present in the hujra with the appellants at the time of occurrence and who has been examined as a Court witness along with Mir Afzal, but in view of his enmity with the appellants we do not consider it safe to act on his testimony.

12. We have already mentioned the various incidents which causes rupture in the relations of the parties and which constitute the motive for the murder. But, Mr. Peer Bakhsh contends that the appellants had no cause to murder the deceased, because according to him there was no documentary evidence in respect of the dispute over the mortgaged land, the security proceedings, and the alleged evidence of the deceased against Allahdad and others in the murder case of Sadiq. As regards the suspicion of Sher Afzal and Mahmud against the deceased in the murder of their father Muzaffar, he maintains that the appellants were satisfied with the oath of innocence taken by the deceased. We find no substance in the argument, because then; is sufficient evidence on the record to prove that the relations of the deceased were extremely strained with the appellants, who are connected inter .se. If the argument of Mr. Peer Bakhsh is accepted, then Miskin, Muhammad Yunus and Mir Afzal had no reason, whatsoever; to implicate the appellants falsely in the murder.

13. It is important to point out that the F. I. R. was lodged with utmost promptitude, and the names of all the material witnesses were mentioned in it. It is not possible to conceive that before the report was made an imaginary story was concocted and false witnesses were procured.

14. Consequently for the reasons given above, we hold that Muhammad Nawaz was murdered by the four appellants in the manner related by the prosecution witnesses.

15. The last question to be answered is, as to what offence the appellants have committed. While discussing this point, the learned Sessions Judge, in the course of his judgment, observed "The matter must be decided on the initial question what was the common intention of the accused when they attacked the deceased. If four men had taken it into their heads to kill the deceased it can hardly be expected that only two serious injuries would be caused. Although the number of injuries is 18, 16 of them are simple. This would, therefore, suggest that the common intention of all the four accused was not to cause the death of the deceased. Those of the accused, there fore, who caused injuries 1 and 9, exceeded the common intention. There is, 'however, no reason to think that the four accused rushed with knives to cause simple injuries only. The common intention must be presumed to have been at least to cause grievous hurt to the deceased. For the reasons given above, Sher Afzal accused must be fixed with the intention of causing injury No. 1, which was sufficient in the ordinary course of nature to cause death. He will, therefore, be guilty under section 302, P. P. C., and I hold accordingly. The rest of the accused are only guilty under section 326/34, P. P. C., and I hold accordingly.

16. We are not at all impressed by the reasoning adopted by the learned Sessions Judge who has taken great pains, though without successful development, to make out a case under section 326, P. P. C. The mere fact that out of 18 injuries only 2 were fatal, should not have provided an argument for the finding, that the intention of Mahmud, Allahdad and Miskin was simply to cause grievous injuries to the deceased, and that they had no common intention with Sher Afzal who was held liable for the murder. It is important to recall that Mahmud was the first person to stab the deceased in his abdomen: He was followed by Sher Afzal who thrust his knife into the chest of the deceased. It also must be remembered that according to the medical evidence 6 blows were inflicted on the abdomen, 2 on the chest and 2 on the head, which are admittedly the most vulnerable and vital parts of the body. It is not easily understandable, as to what other intention than to kill Mahmud appellant had, when he stabbed the deceased in the abdomen with a formidable weapon like a knife. For the same reason it passes our comprehension that when Allahdad and Miskin delivered knife‑blows to the deceased after he had been already stabbed by Sher Afzal and Mahmud in his chest and abdomen, they had no intention to kill him. When four persons jointly attack their victim with knives, and deliver a large number of blows to him at least 10 of them on the most vital parts of his body, in the absence of clear evidence to the contrary, it will be reasonable to presume that their common intention was to kill. The mere fact that only two of the injuries proved fatal cannot afford ground for the finding that those who actually caused the fatal injuries had the intention to kill, but those who caused the simple injuries had no such intention. The question of intention is .a question of fact and it has to be determined on the merits of each case. It cannot be proved bye direct evidence, but bas to be inferred from the act of the accused) person. Moreover, common intention may not necessarily always be present before the occurrence. It can be formed immediately before the transaction, and some time even during the course of the transaction. In the present case, there might not have been a common intention to kill the deceased before he was seen. by the appellants. But we have no doubt, whatsoever, that when he was first attacked by Mahmud without any altercation or a sudden quarrel, he had an intention to kill him, and when the others also joined him and subjected him to an assault with knives, all of them had a common intention to cause his death.

17. The result is, that we dismiss the appeal of the appellants, accept the appeal of the State, set aside the order of the trial Court in respect of the conviction of Mahmud, Allahdad and Miskin under section 326, P. P. C. and convict all these three persons of an offence under section 302, P. P. C., read with section

34. They are sentenced to transportation for life each. ABDUL HAMID, J.‑I have only a little to add on the point of application of section 34 of the Pakistan Penal Code to the offence which was within the intention of the accused. There is no doubt no evidence that the four appellants had, by previous arrangement, been lying in wait for the deceased to kill him. The arrival of the deceased in the hujra of the accused was by a mere chance. It was on the appellants' invitation to a smoke that the deceased took his seat there and Mahmud thought of stabbing him in the abdomen, and stabbed him,, and after him Sher Afzal got up and stabbed him in the chest, and caused a fatal injury. Thereafter the other two, Allahdad and Miskin, attacked him and stabbed him on different parts of the body including chest and abdomen. Each of all the four assailants had either an intention to cause such injuries as he did, and to abide by their consequences, or each in inflicting the injuries which he did shared the intention of the first assailant or the second assailant.

2. In the absence of any evidence of preconsultation to commit an offence, intention to commit the offence in furtherance of the common intention of all can be ascertained from the circumstances of the case. Common intention to commit murder can be developed without preconsultation even at the spur of the moment, or even during the course of the commission of the offence. If there is no evidence of preconsultation or previous concert in this case we have to find out whether intention, whatever it was, can be gathered from the circumstances of the case. I think it is possible to do so. The attack was opened by Mahmud with a knife injury in the abdomen, which was not fatal. Was it his intention to commit murder ? The injury was not fatal, and his intention can at best be said to be to cause grievous hurt. The second knife blow which was given to the deceased by Sher Afzal was in the chest and was fatal. The intention of the inflictor of that blow was to kill the victim. If any body joined Sher Afzal in giving any other knife blow to the deceased he undoubtedly acted with the intention which was Sher Afzal's. It is in evidence that after Sher Afzal's blow in the chest all the four started stabbing the deceased with knives. After having seen one of their companions, Sher Afzal, inflicting a fatal wound on the deceased they all went on stabbing him in different parts of the body including chest, abdomen, and head, and in doing so they undoubtedly at that moment developed the intention to kill the deceased. That intention was conceived during the course of the commission of the offence and that brings them all within the ambit of section 34, P. P. C., along with section 302, P. P. C.

3. The conclusions arrived at by my learned brother are correct and I am in full agreement with them. K. B. A. Appeal dismissed Sentence enhanced.