P L D 1949 Lahore 453 (PLP)

(2) A penetrating wound '' x 1/3" + 2" to the left of the sixth dorsal spine. (3) An incised wound 2'' x bone deep on top of the head. (4) A contusion 4" x 2" on the outer side and upper part of left arm bone underneath fractured. (5) A contusion '' x '' on inner end of left eye. The left lung was penetrating through injury No. 1 and then passed on descending aorta and then to injury No. 2 causing " x '' x 3" wound. Death was due to haemorrhage combined with shock as a result of penetration of descending aorta and left lung under injury No. 1 caused by a sharp‑pointed weapon. With the exception of two who are still fugitives from justice, the other accused were arrested on 22nd of September 1947. The accused denied the offence and did not make any detailed statement of how the things occurred. Their version however, was put to the prosecution witnesses in the course of their cross‑examination and some defence evidence was also led in support thereof. It was pleaded that Mst. Zamurdan some time before the occurrence, had been removed by her brother Zamurad Khan and their cousin Suleman, the son of Gheba appellant to the house of their relation Farman Ali at Garja. This was done as there was a threat on the part of Akbar P. W. to take her away by force. After a sojourn of about 10 days at Garja, she was being taken to her home at Dhok Dadoo at about kuftanwela (sleeping time). The party consisted of Zamurd Khan, his cousin Suleman, Farman Ali and Mst. Zamurdan herself. Zamurad Khan was armed with a spear while the other had hatchets. They had gone about two miles from Garja when they decried tonga. Some persons alighted from it. Three of them forcibly carried away Mst, Zamurdan, put her in the tonga and it was driven away. Zamurad Khan and his companions deceased. Some injuries were inflicted upon them and they fell down. Only Akbar could be identified out of the persons in the tonga. It was further added that none of the accused including the absconders was there. The alleged marriage was sought to be proved by the evidence of Mansabdar P. W. 4 ; Feroz P. W. 6 ; Fazal Illahi P. W. 8 and Akbar himself P. W,

7. Mansabdar P. W. 4 is a Lambardar of village Lakho. He deposed that the Nikah was read in the presence by Maulvi Muhammad Sharif with the free consent of Mst. Zamurdan. It was admitted in cross‑examination that the marriage was not entered in any register nor was any other document prepared at the time. It was also disclosed that Mst. Daro the sister of his own wife had been abducted by Jazoo, absconder and was still with him. Feroz P. W. 6 belongs to a neighbouring village Jatal. He is also a witness to Nikah in the house of Fazal Illahi at village Lakho. He is the real uncle of Fazal Illahi in whose house the marriage was performed. Lal deceased was also connected with him. In. his statement before the police he had given the time of the marriage about five days before the occurrence and not fifteen days as now deposed in Court. Fazal Ilahi P. W. 8 is a friend and partisan of the complainant Akbar, Lal deceased was his brother‑in- law and Akbar deceased his son‑in‑law. In a case under section 326, Indian Penal Code against him, he was sentenced to six months' rigorous imprisonment and Jazoo absconder was one of the witnesses against him. He further supported the prosecution version as to the manner of the attack. It was vehemently contended by the learned counsel for the appel lants that the marriage was not proved by independent and reliable evidence. The main argument was that Mst. Saidan, the mother of the girl who was cited as one of the prosecution witnesses was withheld and that Mst. Zamurdan herself was not produced in Court. It is seriously in dispute that Mst. Zamurdan was no longer with the complainant party but was with the accused and for that reason the prosecution could not be blamed for not producing her in evidence. Mst. Saidan was not doubt an important witness in the case as the prosecution rests upon the foundation that it was with her consent that her daughter Mst. Zamurdan was allowed to be taken to another village and married there. But since this occurrence, another incident had happened and this might have made it difficult for Mst. Saidan to lend her support to the prosecu tion case. Within three months, her son Zamurad Khan was married to the daughter of Gheba appellant and on account of this new relation ship, Mst. Saidan could not be expected to do anything which might go against the interests of Gheba appellant. Similarly the failure to to examine Maulvi Muhammad Sharif, the alleged nikah khawan could not be said to be very material. Maulvi Muhammad Sharif was no longer available in the village and had ultimately to be given up by the Public Prosecutor by his statement of 5th of January 1948 as he was reported to be hostile to the prosecution and was also not forthcoming. The evidence as to marriage was such as could be hoped for under the'' circumstances. A run‑away marriage could only be performed at another place and at the house of a person and in the presence of men who could be trusted. To my mind however, the crux of the question is whether the girl was with Akbar P. W. 7 at the time of the attack, with or without marriage. That she was there at the time of the fight, is beyond dispute. She could be there either with the complainant or the accused. The story for the defence that she was kept in the house of Farman Ali for about 10 days and was being brought back at night, is a little thin. The danger which had necessitated her removal to village Uarja, was not yet wholly over. There had been no change for the better and Akbar P. W. had not yet been cured of his infatuation for the girl. The time of the night was hardly the proper moment for the journey. It was surely much safer during the day and better and stronger escort could be arranged than during the night. Further, the abduction of Mst. Zamurdan, if it had been effected by the complainant, should have been immediately reported to the police by her brother or other suitable action taken. The explanation that Zamurad Khan D. W. 1 did go to the police who refused to record his report, does not impress one favourably. Again there appears to be no reason on the part of the complainant not to mention the D. Ws. among the accused if they were really there and took part in the assault. I would, therefore, in agreement with the learned Sessions judge hold that Mst. Zamurdan was with Akbar and his party when the attack was made in the afternoon. In view of this finding, the failure to produce the Jirga people or the evidence as to the loan of the amount said to have been paid to Lal Shah as a blackmail, loses its importance. Whether the one or the other was or was not a fact, would leave the main case untouched. The account of the assault is deposed to by Akbar P. W. 7 ; Fazal Illahi P. W. 8 ; Daulat P. W. 9 ; Nawab P. W. 12 and Yaqub P. W.

13. Their presence at the scene appears to be quite in conformity with the facts established. The chief criticism that could be levelled against their evidence was that they were inter‑connected and were men of the party of the complainant P. W.

7. The other criticism was that all the witnesses excepting P. W. 7 had an old enmity with Jazoo absconder. That there was animus against Jazoo is quite clear and Jazoo was one prosecuted for the abduction of Mst. Daro the sister of Daulat P. W.

9. That might be a reason for implicating Jazoo but as he is not before us it is not necessary to determine that question. All the P. Ws. had no reason to depose falsely against the appellants and to that extent at any rate their evidence would be quite good and unassailable. There is however some doubt as to the exact part played by the appellants. The story originally told in the first information report was later improved upon to the prejudice of some of the appellants. Accord ing to the first information report Gheba appellant had only a stick and Lalu and Shera were credited with hatchets. The stick of Gheba was converted into a spear at the trial and he was said to have given a fatal injury to Lal. It might be recalled that there was one fatal injury inflicted upon Lal Khan deceased which was a penetrating wound going through the chest above the left nipple. Jazoo and Karam Illaht absconder struck with hatchets. Similarly Akbar deceased had two fatal injuries Nos. 2 and 3 both incised caused by some sharp‑edged weapon. These are ascribed to Zaman (acquitted) Shera and Lal appellants. In the first information report, however, Shera and Lal were said to have given kulhari blows after Lal and Akbar had fallen down. The two fatal injuries appear to have been inflicted at the time when Akbar was still upon his legs and not when he was lying prostrate on the ground. It would thus be evident that though the three appellants took part in the assault which resulted in the death of Lal and Akbar none of them could be directly held responsible for the murders. The learned Sessions Judge has convicted the appellants under section 302 by virtue of the application of section 34 of the Indian Penal Code, section 34 is as follows :‑ '' When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." There is no proof whatsoever that the murder of Lal and Akbar was committed "in furtherance of the common intention." All that is apparent is that the appellants along with others joined together to take away Mst. Zamurdan from the custody of Akbar P. W.

7. It is another matter whether in the achievement of that object, a murder could or could not be considered to be likely, and shall be discussed presently. But in order to being the case under section 34 of the Indian Penal Code, it should have been established that all the accused had the common intention of causing death and this is not at all borne out by the record. In a recent case reported as A I R 1945 Privy Council 118 Their Lordships of the Privy Council explained the real implication of section, 34 Indian Penal Code. It was pointed out that " Common intention within the meaning of section 34 implies a pre arranged plan. To convict the accused of an offence applying section 34 it should be proved that the criminal act was done in concert pursuant to the pre‑arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual ; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention ; the partition which divides "their bounds" is often very thin ; never theless, the distinction is real and substantial and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term .in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case." This test has not been fulfilled in this case and I would hold that the appellants could not be convicted under section 302, Indian Penal Code read with section

34. The narrative of the events detailed above, would leave no room for doubt that the appellants and others gathered together with the set purpose of removing Mst. Zamurdan from the keeping of Akbar P. W. 7 and his party. The accused thus constituted an assembly of five or more persons with the common object of taking the law in their own hands and committing an offence. They would be designated as members of the "unlawful assembly" within the definition of section 141 Indian Penal Code. Their offence would fall under section 149, Indian Penal Code which is 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." The liability of the appellants whether they themselves did or did no take part in causing injuries to the deceased, would clearly be covered by this section. The first part of the section "in prosecution of the common object" could not be held applicable to the murders of Lal and Akbar, The common object was no more than to take away by force Mst. Zamurdan and the murder of any of the party of Akbar P. W. was not really essential in order to achieve that "common object." The latter part "such as the members of that assembly knew to be likely to be committed in prosecution of that object" needs consideration. 1f it was within the knowledge of the members of the assembly that a murder was likely in prosecution of the common object of rescuing Mst. Zamurdan from the clutches of P. W. 7 and his friends, each one of the members of the unlawful assembly would be liable for the same whether or not he actually committed the murder. The learned counsel for the Crown strenuously maintained that where the abduction of a woman was concerned, it might be presumed that death of someone was the likely consequence. In support of this proposition reliance was placed upon 16 Punjab Record 1915 (Cr.) ; AIR 1925 Lah. 371 ; A I R 1926 Lah. 63 ;AIR 1929 Lah. 292 ; I L R 1940 Lah. 554 ; 1948 Lah. 89 and the judgment of Teja Singh J. in 1947 Lah.

189. A I R 1925 Lah. 371 was a case in which the members of a gang had got together for the commission of dacoities and in that case their object was to abduct Mst. Lajwanti and her sister and to take them to Lyallpur District and sell them there. The deceased was Mst. Lajwanti's lover who was present with her on the occasion of the offenders to her residence to perpetrate the offence. It was observed that ; "When a number of persons set out to abduct women and some of them are armed with pistols the obvious inference to be drawn is that the pistols were intended to be used, if necessary, to overcome any resistance that might be offered. The members of the gang would, therefore, know that murder was likely to be committed, and in any case having regard to the evidence here Jagat Singh was clearly shot in prosecution of the common object of all the members of the gang." In A I R 1926 Lah. 63 the four accused who were engaged in committing robberies were armed with rifles, daggers and dangs and two of them actually committed a murder before any resistance was offered to them. They were all held guilty under section 302 read with section 34, Indian Penal Code and this case is no authority for the interpretation of section 149 Indian Penal Code. In A I R 1929 Lah. 292 the liability of all the offenders was determined by section 34 of Indian Penal Code and it was pointed out that "Some persons went to another's house with the object of robbery, but with the intention of killing anyone who would obstruct them in the attainment of their object, and killed one person in the prosecution of such intention. It was held that their liability was constructive it being impossible to say which of them was directly responsible for the death." This again does not deal with the construction of section 194, Indian Penal Code. In I L R 1940 Lah. 554 the accused armed with chhavis and lathis came to the residence of the deceased and divided themselves in to two‑gangs. Three of them attacked the deceased and beat him to death by inflicting chhavi and lathi blows on him. The others forcibly abducted the deceased's wife. It was found that they were members of an unlawful assembly, the common object of which was to abduct deceased's wife and murder the deceased, This finding of fact that the common object was to commit murder as well, would bring it within the first clause of section 149 and cannot be usefully looked at, for the purpose of ascertaining the meaning of the second clause of section 149 Indian Penal Code. In Faiz Bakhsh and others reported as A I R 1947 Lah. 188, I had an occasion to consider meaning and implication of the second clause of section 149 Indian Penal Code. My learned brother Teja Singh, J. differed from me on conclusions of facts. I pointed out that "The mere fact that the murder was actually committed is no reason for holding that all the appellants knew that it had to be com mitted in order to achieve the object for which they had met and acted together." Earlier I had stated that "Unless it is proved that the appellants knew it from the beginning that murder would also be committed in order to achieve their object of abducting the females, the appellants who did not actually take part in the murder cannot be held constructively liable for the same within the meaning of section 149." 16 Punjab Record 1915 and A I R 1942 Lab. 89 were then exhaustively dealt with by me and their distinguishing features indicated. On a further consideration of the other cases quoted at the bar, I am still of view that the mere fact that the common object was the abduction of a female would not lead to the necessary inference that all the persons taking part in it, were fixed with the knowledge that some persons might be killed in the adventure. This result might or might not ensue. With the greatest respect to the learned judges who decided the cases referred to above, it cannot be accepted as an inescapable conclusion that a dispute over a woman would lead to murder. In my humble opinion, whether murder was or was not likely is a question of fact to be determined on a careful analysis of all the circumstances of the case. The nature of the weapons and the injuries actually inflicted must receive their due share of attention. But I cannot go so far as to say that in every case where the common object of the unlawful assembly is to abduct a woman, each one of the members of the assembly must be credited with the knowledge that a murder would be the consequence if it subsequently really comes about. Where the members of an unlawful assembly are armed with lathis and in the prosecution of their common object a person is killed, it would be too much to say that each one of them should be held guilty of murder, in consequence of the presumed knowledge that death would result. Ordinarily each one of them could be safely held liable for the knowledge of grievous injuries with a blunt weapon, that is their liability would fall under section 325, Penal Code. The same conclusion should be reached where the weapons are not mere lathis but include also some instruments for stabbing or cutting and in such a case each one of the persons constituting the unlawful assembly should be credited with the knowledge that grievous injuries by dangerous weapons would be caused and as such liable under section

326. Where, however, the unlawful assembly in a particular case consists of desparados armed with rifles and pistols whose activities would show that they would stop at nothing, the knowledge of murder might very well be attributed to them. But no hard and fast rule can be laid down which would easily cover every case. Each case shall have to be decided on its peculiar facts and circumstances. As I pointed out before in 1947 Lab. 189 "where from a particular conduct two inferences are possible, I would presume the one which is less harmful to the accused." It was then suggested to me that the question whether the members of an unlawful assembly engaged in the abduction of a woman and carry ing lathis and spears should be credited with the knowledge that death was likely, might be referred to a larger Bench as the view contrary to the one I have expressed above, has been held by some learned judges in some of the cases relied upon by the learned Counsel for the Crown. I might have gladly done so but there is no question of law involved in it. It is all a question of fact which must be determined in relation to the facts of each case as it comes up before the Court. The above discussion which lead to the conclusion that the appellants are constructively liable under section 149, Penal Code for such offence as was known to them to be likely to be committed in prosecution of their common object and this was that grievous injuries with sharp‑edged or cutting weapons may result; and the offence would fail under section 326, Penal Code. This is in addition to any specific part played by each of the appellants. Their individual part does not go beyond causing grievous injuries either with a blunt weapon or with a sharp edged weapon. I would, therefore, convert the conviction of the appellants from section 302/34, Penal Code to section 326/149, Penal Code and sentence each of them to seven years' rigorous imprisonment. The appeal is accepted to the extent mentioned above and the sentence of death is not confirmed. A. H. Conviction altered.