1969 PLP 419 (SCMR)

The case for the prosecution was that Sahibdad deceased and his brothers were joint owners of a piece of land in which the appellant had a half share; that by mutual arrangement the parties were in possession of specific portions of the land, but about three days prior to the occurrence appellant claimed some more land in his share which his brothers including Sahibdad deceased refused to give; that then there arose a quarrel between them in the course of which the appellant threatened to teach a lesson to his brothers within a few days; that there after on the date of the occurrence, at about midday the appellant and his party came armed with two guns, a sword, some hatchets and dangs and attacked Sahibdad and his eight companions (the eye‑witnesses) who were sitting under the shade of some trees at Mehranwala well, the result was that Sahibdad was killed and his eight companions were injured. The defence taken by the appellant was that Sahibdad and his companions were the aggressors; that Sahibdad was the first to open the assault by hitting the appellant, and the very first blow fractured his skull and made him fall and get unconscious; that the others then came up to save him, and thereafter a general fight that took place between the two parties in which Sahibdad was fatally injured and some of his companions were wounded; that the appellant could not tell what happened after he became unconscious. The assessors gave a unanimous opinion that the accused had acted in the exercise of the right of private defence and as such were not guilty but the learned Sessions Judge disagreed with their view and convicted and sentenced seven of the accused including the appellant to rigorous imprisonment for ten years under section 304, Part II/149, to rigorous imprisonment for one year under section 148, to rigorous imprisonment for two years under section 325/149, and to rigorous imprisonment for six months under section 323/149 of the Penal Code the sentences to run concurrently. Upon appeal the High Court of Judicature at Lahore, acquit ted six of the appellants and as regards the remaining appellant (Mir Dad) set aside his conviction and sentence under section 148, only, but otherwise dismissed his appeal. The present appeal of Mir Dad arises from the aforesaid judgment of the Lahore Court. Counsel for the appellant contended that on the criterion adopted by the High Court the conviction of the appellant could not be sustained; in support he drew our attention to the following portion of the judgment :‑ "As there is no independent evidence and the report made to the police suffers from the defects mentioned above, it is necessary to require corroboration of the statements of the eye‑witnesses before conviction can be based on their depositions. With regard to the appellants, other than Mir Dad, however, there is no such corroboration. Mir Dad, how ever, bore injuries on his person and the presence of injuries on his person would show chat he was present at the scene of occurrence, and, in fact, he himself does not deny that it was so. In these circumstances, I gave the benefit of doubt to the appellants other than Mir Dad and acquit them . . . . . The large number of injuries received by Sahibdad deceased and the injured prosecution witnesses corroborates the depositions of the eye‑witnesses that a number of persons took part in the fatal assault .... The offences under section 304 Part II, section 325 and section 323 are clearly proved and as Mir Dad appellant was a member of the unlawful assembly responsible for the commission of these offences, his conviction for these offences read with section 149, P. P. C. was justified though he may not have been proved to have been directly responsible for them" and with reference to it argued that the injuries found on the person of the appellant could merely confirm his presence at the place of occurrence and could not corroborate any or allegation of the prosecution witnesses; further that in the following circumstances viz. that Sahibdad deceased had opened the assault by hitting the appellant on his head with a sota which cracked his skull and felled him to the ground (P. W. 2); that the appellant "did not after being hit give any blow to Sahibdad but the other accused gave blows to Shahibdad" (P. W. 5); that in the opinion of the doctor P. W. 24, the injury No. 1 on the appellant was dangerous to life and "there were signs of compressions of the brain"; that the F. I. R: and the evidence of P. W. 2, disclosed that the object of the appellant was only to teach a lesson to his brothers and not to cause death, the conviction of the appellant under section 304 Part II/149 and the maximum sentence of ten years' rigorous imprisonment there under were unwarranted and unjustified. The Advocate‑General of the Punjab, appearing for the Crown argued that the appellant and his party were bent upon a fight and came equipped with lethal weapons; that they therefore, constituted an unlawful assembly and even though the appellant on account of the injury received could not take any part in the actual assault, still he was constructively liable under section 149 of the Penal Code not only for the offences committed by the other members of the unlawful assembly in furtherance of the common object, but also for the offences committed by them which he knew to be likely to be committed in connection with that common object. The pertinent question which arises for our consideration in this case seems to be whether the conviction of the appellant under section 304 Part II by the application of the principle of constructive liability under section 149, P. P. C., can be sustained on the evidence on the record. Section 149 is divided into two parts, (a) an offence ‑committed by a member of an unlawful assembly in prosecution of the common object of the assembly, (b) an offence which a member of that assembly knew to be likely to be committed in prosecution of the said common object. In the present case the evidence discloses that the object in view was to teach a lesson to Sahibdad and the other brother of the appellant (r. I. R. and P. W. 2); this, in my opinion, implies the causing of hurt merely which at the most could include grievous hurt, but not the causing of death. We have next to see whether the appellant knew death was likely to be caused in prosecution of the common object of the assembly. In this connection one cannot overlook the fact that the account of the occurrence as given by the prosecution witnesses could not have been considered to be satisfactory by the Courts below as thirteen out of the fourteen accused had been acquitted and even with regard to the appellant, who alone was convicted, his conviction under section 148 had been set aside. No doubt the question of knowledge is primarily a question of fact, but it is a matter by no means free from difficulty. Upon a careful consideration of all the facts and circumstances of the case, I do not think it safe to convict the appellant under section 304 Patt II by the application of the principle of constructive liability. I would accordingly allow the appeal to this extent only that the conviction and the sentence under section 304, Part II/149 will be set aside, but in other respects the appeal will be dismissed, in the result the convictions and sentences under sec tions 325/149 & 323/149, P. P. C., stand. ABDUL RASHID, C. J. and SHAHABUDDIN, J.‑We agree with our learned brother Akram, J. that the conviction under sec tion 301, Part II read with section 149, P. P. C. and the sentence of rigorous imprisonment for ten years imposed on the appellant should be set aside and that in other respects the appeal should be dismissed. According to the Sessions Judge the common object of the unlawful assembly was not to cause the death of Sahib Dad but only to cause grievous injury to him or anyone of his party. This finding was not disturbed by the High Court. The only question, therefore, is whether the appellant knew that in the prosecution of that common object a fatal injury might be caused to Sahib Dad or anyone of his party. If the evidence of the eye‑witnesses could have been relied upon there would have been no difficulty in answering this question, for if members of an unlawful assembly are armed with kulharis, a sword and two guns the inference that the common object was to cause death or at least that every member was aware of the likelihood of death occurring in the prosecution of the common object cannot be avoided. But the learned Judge of the High Court held that the ocular evidence could not be made the basis of a conviction unless it was corro borated, and that the required corroboration was avilable only in respect of the appellant in the fact that the injuries on him proved his presence at the disturbance and from the circumstance that Sahib Dad bad sustained a large number of injuries and nine of his men were also injured it could safely be inferred that the number of the assailants was at least five. If there were no other circumstances in this case it might with justification have been said that the appellant having been a member of the unlawful assembly must have been aware that in carrying out the common object of causing grivous injury it was likely that fatal injuries might be caused; but it so happens that there are circumstances which clearly make it extremely unsafe to attribute to the appellant the knowledge requisite for conviction under section 304/149. The circumstances have not been considered by the Court below. It is clear from the observations of the learned Judge that the members of the appellant's party were not armed with sharp‑edged weapons though the witnesses had deposed that some of them were armed with kulharis and a sword. The fact that two of the victims sustained gun shot injuries, however, supports the version that two of the assailants were armed with guns, but from the prosecution version as to how the disturbance started it seems improbable that men armed with guns were with the appellant when he arrived at the scene and was felled to the ground. It is in evidence that the appellant and his men paused at the Banna and merely shouted at Sahib Dad and his party, and that Sahib Dad opened the attack by stepping forward and hitting the appellant on the head with a sota as a result of which lie fell down with a fractured skull. If at that time men armed with guns were with the appellant it is difficult to believe that they would have desisted from shooting Sahib Dad, but there was no gun shot injury on him. The probability seems to be that men armed with guns came at a later stage and not with the appellant. It is significant that the gun shot injuries found on two of the victims were superficial and the finding of the trial Court is "the probability is that the gun was fired not with the intention of injuring any particular person but of scaring away people who had made any move to save the deceased from the clutches of the assilants who were beating him on the ground". The fact that the appellant and his men paused at the Banna and only shouted at the opposite‑party though Sahib Dad alone was armed with a sota and his men were not armed, indicates that the scheme of the rioters was not to indulge in a murderous attack. The violence of the attack on the other hand seems to have been due mainly to Sahib Dad having felled the appellant to the round. In the circumstances we consider that at the most the knowledge that can safely be attributed to the appellant under section 149, P. P. C. is that grievous injury was likely to be caused to the opposite‑party. The question of knowledge under section 149 is no doubt one of fact, but it should be decided on full consideration of all the circumstances of the case, which as already pointed out was not done by the Court below; and it is clear that this omission has resulted in substantial injustice to the appellant. Appeal partly accepted.