P L D 1954 Lahore 783 (PLP)

SHABIR AHMAD, J,‑On the 11th of March, 1953, at about 8 p.m. there was an incident in the bhura (a but in the fields) of Abdul Karim situated in the area of village Kangu Bahadur which resulted in the death of Abdul Karim, injuries to his wife and daughter and theft of some articles. After investigation the police challaned Juma, Fazal Dad. Muhammad Sharif, Inayat Ali and Shera under sections 302/149, 376/149, 394/149 and 452/149 and besides others produced Ghulam, son of Mansabdar, as a witness. According to the police, this Ghulam had taken part in the incident but was made an approver. The case which was tried by Sh. Muhammad Akbar, Additional Sessions Judge, Rawalpindi, resulted in Inayat Ali and Shera being acquitted and Jumma and Fazal Dad being convicted under section 302 P. P. C. and Muhammad Sharif under section 302/34 P. P. C. and in the judgment the learned trial Judge ordered that Ghulam approver be tried under sections 302, 394, 376 and 452 of the P. P. C. Jumma and Fazal Dad have presented a joint appeal against their convictions and sentences and their case has also been sent by the trial Judge to this Court under section 374 of the Code of Criminal Procedure for confirmation of sentences of death. Muhammad Sharif has presented a separate appeal, which is Criminal Appeal No. 207 of 1954. In addition there is a petition for revision (Criminal Revision 499 of 1954), which the Provincial Government through the Advocate‑General has presented against the order of the trial judge regarding the trial of Ghulam, the approver. The two appeals, the reference for confirmation and the petition for revision will be disposed of by this order. The case for the prosecution was that the object of the culprits was looting the property of Abdul Karim, who was believed to be a well‑to‑do man, but the learned trial judge has found that the intruders had entered the bhura of Abdul Karim on the invitation of Mst. Sarwar Jan, who had illicit intimacy with Latif, whose father Sharif is the appellant in Criminal Appeal No. 207 of 1954. According to the prosecution case, Ghulam approver and Inayat Ali, one of the acquitted accused, went to the roof of the bhura, while the appellants in the two appeals, and Shera, one of the acquitted accused, entered the bhura itself. The report to the police was made by Noor Muhammad, a brother of Abdul Karim deceased, at about 6 a.m. on the 12th of March 1953, at Police Station Sang Jani, which is at a distance of about eight miles from the scene of the occurrence. Noor Muhammad who lives in village Khuram Piracha which is at some distance from the scene of occurrence, had received informa tion about the incident from Muzaffar, a fourteen‑year-old son of Abdul Karim deceased, who ran away when the intruders entered the hut. The report said that the boy had given information that four persons had entered the bhura and had caught Mst. Azeeman and Mst. Sarwar Jan, whom they were beating and from whom they were demanding money and other property. The informant went to the scene of the occurrence and there found his brother Abdul Karim lying dead and Mst. Azeeman and Mst. Sarwar Jan lying uncon scious. At the trial the prosecution produced the approver Ghulam (P. W. 17), Mst. Sarwar Jan (P. W. 19), Mst. Azeeman (P. W. 20), Muzaffar (P. W. 21) and Ashraf (P. W. 22) as eyewitnesses of the occurrence. Ashraf, a nine- year‑old son of Abdul Karim, who was not mentioned as an eyewitness in the first information report, was merely tendered for cross‑examination but was asked no question by the defence. The statement of Ghulam (P. W. 17)' was not considered by the learned trial judge who was of the view that in the circumstances of the case Ghulam (P. W 17) was not properly given a pardon and his proper mace was the dock rather than the witness‑box. He held that the statement of the approver could not Le used as evidence as he was in the eye of law a co‑accused of the persons who stood their trial. The first question that I will deal with is whether or not the statement of Ghulam approver was properly excluded from consideration. At the preliminary hearing of the revision petition it was ordered by a Division Bench that a copy of the grounds for revision be supplied to the trial Judge for his comments. The learned trial judge has made his comments which run into about ten typed rages, the gist of which is that Ghulam should not have been made an approver and, therefore, the action he took in ordering his trial was entirely justified. I have carefully gone through the comment of the learned trial judge and find that at more than one place, it contains intemperate language. For properly dealing with the matter it appears necessary to reproduce verbatim the two paragraphs in the judgment which the learned trial judge has devoted to the question whether or not the statement of the approver should be considered against the accused who stood their trial before him, These paragraphs, which the learned trial judge has reproduced in his comments, read as follows :‑ "Ghulam, approver, P. W. 17, did not take any part, according to the prosecution, either in murdering Abdul Karim or in committing dacoity or looting any booty or in raping Mst. Sarwar Jan. He is said to have been simply standing on the roof of the bhura. He was not present inside the bhura wherein dacoity was committed. He is said not to have been present inside the bhura where Mst. Azeeman and Mst. Sarwar Jan were beaten. No booty came into his hands. He was not the proper person to have been given a pardon in this case. The only part assigned to him by the prosecution was of standing over the roof of the bhura. He did not physically do any act, according to the prosecution either in the offence of rape or in the dacoity or in murder. Police has tried to exculpate him from all the offences. He has tried to exculpate himself from all the offences. I have very minutely gone through proceedings taken by A. D. M., Rawalpindi, vide P. W. 17/A, P. W. 17/B and P W. 17/C. Their perusal will show that the learned A. D. M. does not refer in them to the facts of the case at all. There is nothing before me to show that he had applied his judicial mind to the facts of the case with a view to determine whether Ghulam, approver, was in the circumstances, the fit person to be given a pardon. Had it come to the notice of the A. D. M. that Ghulam did not do any, physical act either in the matter of rape or murder or dacoity, the A. D. M. would never have granted him a pardon. Mansabdar, Lambardar, the father of Ghulam, approver, was the right‑hand man of the police in the investigation of this case. It is in evidence that the police continued holding investigations in the case in the deohri of Mansabdar, Lambardar, the father of the approver. This fact is admitted by the approver himself. Considering all the circumstances of the case I hold that Ghulam, approver, was not properly given pardon in this case. I, therefore, order his trial for all the alleged offences. He shall first be formally proceeded against before the committing Magistrate. All the commitment proceedings shall be taken. The case shall be committed to the Court of Session and then he shall be tried for offences under sections 302, 394, 395, or 396 or 397, whichever is applicable and also under sections 376 and 452 P. P. C. His statement as an approver, in this case, cannot be used as evidence against the other accused persons. According to law he will be considered to be a co‑accused with the remaining accused persons. A man in the dock cannot appear as a witness against the other men in the dock except when either he is discharged or he is granted pardon according to law. In this case none of the two conditions stands satisfied. I, therefore, exclude his state ment from consideration." In his comments the learned trial judge has tried to show that the order he passed was not only allowed bylaw but justified also and he added that it could not be right to leave the question of the prosecution of the approver to the Public Prosecutor, because if the person who conducted the trial on behalf of the prosecution were a temporary Public Prosecutor, as the one in the present case was, he would be under the thumb of the executive and may not do his duty properly. I must confess that I do not see any force in the learned trial judge's criticism of the Public Prosecutor and the Executive authorities but the fact that that criticism was not called for will be immaterial if the order that he passed was within his competence. Nor will the fact that the position taken up by the learned trial judge in his comments does not tally with that taken up by him in the two paragraphs of the judgment which have been reproduced above make much difference. Provisions applicable to approvers are contained in Chapter XXIV of the Code of Criminal Procedure and of them sections relevant for the present discussion are 337 and

339. Subsection (1) of section 337 lays down that it is within the competence of the Magistrates mentioned therein to tender a pardon to a person, who was supposed even to be indirectly concerned in of privy to the offence, with regard to which tender of pardon is given. If the learned trial judge had cared to read section 337 of the Code of Criminal Procedure he would not have tailed to notice that the mere fact that the approver in the present case did not assign to himself as serious a part as he did to others could not make any difference and his opinion that as the approver admitted having taken but a minor part in the offence he could not be made an approver could not be supported by any provision of law. Subsection (2) of section 337 of the Code of Criminal Procedure makes it incumbent that the person who has accepted a tender, of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Now when the approver had appeared as a witness as he was bound to do it was open to the learned trial judge to say that he did not believe him but he could not ignore that the approver was a witness and order that he shall be treated as an accused person and tried. The learned trial judge has remarked that the Additional District Magistrate who gave the tender of pardon to Ghulam, the approver, did not bring his judicial mind to bear on the question whether or not Ghulam should be made an approver, but on the material on the record, I am not prepared to agree with this view of the learned trial judge. But even if this view were accepted I do not see how the learned trial judge could have ignored the tender of pardon and virtually set aside the order of the Additional District Magistrate by which Ghulam was made an approver. Assuming that the order of the Additional District Magistrate granting tender of pardon to Ghulam (P. W. 17) was open to revision the learned trial Judge should have known that that order could be revised only by this Court and not by any Court subordinate to it. Under the provisions of the Code of Criminal Procedure the powers to revise an order vest in the High Court except as otherwise provided, for example in section 436 of that Code, and the learned trial Judge could not have revised the order of the Magistrate granting pardon to the approver under section 337 of the Code of Criminal Procedure. In the comments that the learned trial Judge has sent he took the position that the approver had not given true evidence and could, therefore, not be treated as a witness. The learned Judge in his desire to justify his action has overlooked the provisions of section 339, which is in the following terms :‑ "(1) Where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence not complied with the condition on which the tender was made such person may be tried for the offence in respect of which he appears to have been guilty in connection with the same matter : Provided that such person shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made ; in which case it shall be for the prosecu tion to prove that such conditions have not been complied with, (2) The statement made by a person who was accepted a render of pardon may be given in evidence against him at such trial. (3) No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court." Under subsection (1) of this section it is only the Public Prosecutor who can certify that in his opinion a person who has accepted a tender of pardon has, either by wilfully, concealing anything essential or by giving false evidence, not complied with the conditions‑on which the tender was made and it was not within the province of the learned trial Judge to give such a certificate. In his com ments the learned trial judge has said that if a temporary additional Public Prosecutor (as the counsel who conducted the prosecution in the present case was) could give a certificate he could not see why an Additional Sessions judge could not, but he would not have posed this question if he had borne in mind the cardinal principle of law that Courts are to administer the law as they find it and cannot make it. It appears that the learned trial judge felt chagrined that the law had given the Public Prosecutor more power in this respect though in Court that officer had to make submissions and to obey orders of the judge. This was hardly the correct attitude, because if the Legislature chooses to give a power to a person it is not the business of Courts to question the wisdom of the Legislature in doing so provided the law which gives that power could be validly passed by the Legislature, as there is no doubt that the provision under consideration could be. There is an inconsistency in the order of the learned trial judge because he said that the approver was not concerned in the offence to the fullest extent yet he ordered that the approver be tried for offences under all the sections which could possibly apply if all the allegations of the prosecution were to be accepted as true. He proceeded to say that the approver in the present case was, according to law, to be considered to be a co‑accused with the accused persons tried by him, but I fail to comprehend by what process of reasoning he arrived at that conclusion. The approver had not been sent up as an accused person and was not arraigned with the other accused to stand trial and it is difficult to see how he became a co‑accused with the accused. If the learned, trial Judge intended to say that because the approver was an accomplice he could not be a witness, he was entirely mistaken in this view, because even if a tender of pardon had not been granted to the approver he would be a competent witness under sections 133 and 118 of the Evidence Act, unless he were standing his trial with the persons against whom he deposed. What I have said above will have made it clear that the action or the learned trial judge in not treating the approver as a witness was entirely erroneous. It was open to the learned trial Judge to disbelieve the approver but I can think of no provision of law, and none was mentioned by the learned trial judge, under which it was open to him to say that he will not treat the approver as a witness but will, on the other hand, order that he shall be tried as an accused person for offences about which he had given evidence. Criminal Revision No. 499 of 1954 is accepted and the order of the trial judge that the approver shall' be tried after being formally committed to the Court of Session is set aside. This, however, will not bar the prosecution of tire approver on a proper certificate given by the Public Prosecutor under subsection (1) of section 339 of the Code of Criminal Procedure, nor his prosecution for giving false evidence if the provisions of subsection (3) of section 339 are complied with. I will now address myself to the consideration of the question whether or not the guilt of the appellants was established beyond all reasonable doubt. I have already indicated that though the prosecution case was that the motive of the intruders was looting the property of Abdul Karim deceased, the learned judge came to the conclusion that they had come to the house of the deceased on the invitation of Mst. Sarwar Jan. The circumstances emerging from the evidence on the record tend to show that the finding of the learned trial judge in this regard was correct. If theft were the object of the intruders the bhura of the deceased, who was by no means a well‑to‑do person, was an unlikely place to be chosen for looting especially when the deceased had a house in village Khurram Piracha which fact was known to at least four of the alleged intruders. Other circumstances which point to Mst. Sarwar Jan having invited the intruders so that she maybe taken away is that the evidence shows that she had an illicit intimacy with Sharif appellant and Latif, his son, and that for a number of days after the incident she did not disclose the name of any of the culprits. As already mentioned ocular evidence against the appellants was given by Ghulam (P. W. 17), Mst. Sarwar Jan (P. W. 19), Mst. Azeeman (P. W. 20) and Muzaffar (P. W. 2l). Appearing as P. W. 17 the approver deposed that two of the culprits, namely Fazal Dad and Juma (the appel lants in Criminal Appeal No. 206 of 1954) were hired persons, while the other four, namely, himself, Sharif (the appellant in Criminal Appeal No. 207 of 1954), Inayat Ali and Shera (the two who were acquitted) belonged either to the village of the deceased or the neighbouring one. Before dealing with the case of each appellant separately I will dispose of a contention that as there was no corroboration of the statement of the approver that he took part in the incident, the Court could not or at least should not hold that the approver had taken part in the incident. When dealing with the statement of an approver the Court has to be satisfied of two things, firstly, that he took part in the crime about which he deposes, and secondly, that he is corroborated in material particulars with regard to the participation of each of the accused. Corroboration of the statement of the approver against the accused is not required by any provision of, law and in fact section 133 of the Evidence Act enacts that) it s permissible to base a conviction on the uncorroborated testimony of an accomplice. A very long chain of judicial decisions of unquestionable authority, however, has laid down that corroboration in material particulars is required before the statement of an accomplice is used to convict an accused person and the requiring of corroboration of an approver against an accused person has become virtually a rule of law. This does not mean, however, that without corroboration the Court cannot hold that the accomplice, who states that he took part in a crime, had done so. If the Court is satisfied from the evidence of the accomplice, that he had taken part in the crime about which he deposes, it can hold so even if there is no corroboration of his statement as far as his own complicity is concerned. Taking the present approver one finds that his name was not mentioned in the first information report and he is the son of a Lambardar who was helping the police in the investi gation of the case. In these circumstances it is difficult to believe that the approver if he had not participated in the crime would agree to depose that he had. Generally an approver runs no risk if he supports the prosecution case but it is not correct to assume that an approver runs absolutely no risk. Section 339 of the Code of Criminal Procedure, which has already been referred, will show that an approver can in appropriate cases be sent up for trial for the offence he deposes about or on a charge of perjury. I have, after considering all the circumstances of the case, arrived at the conclusion that the approver had taken part in the occurrence he deposed about. Taking the cases of the appellants separately one finds that Fazal Dad appellant was identified at a parade held on the 30th of March 1953 under the supervision of Mr. Saeedul Hasan, Magistrate Ist Class, by Mst. Sarwar Jan (P. W. 19), Mst. Azeeman (P. W. 20) and Muzaffar (P. W. 21). Ashraf (P. W. 22) also identified this appellant but as Ashraf was not examined about this matter in Court the identification by him is of no use. Mst. Sarwar Jan alleged against this appellant that he had raped her but the learned trial judge, for reasons with which I cannot agree held that rape was not proved to have been committed With regard to Fazal Dad appellant having raped Mst. Sarwar Jan we have depositions of Ghulam approver (P. W. 17) and Mst. Sarwar Jan (P. W. 19). I cannot bring myself to believe that if Mst. Sarwar Jan had not been subjected to sexual intercourse by Fazal Dad appellant she would say that she was and the only question for decision was whether or not her allegation of rape was correct. Fazal Dad has no doubt been acquitted of the charge of rape, and though it may not, in the absence of an appeal under section 417 of the Code of Criminal Procedure by the Provincial Government, be possible to alter that acquittal into conviction, yet there is no bar to a finding being given that he had been guilty of rape without recording an order of convic tion with regard to that offence. The evidence given by Mst. Sarwar Jan with regard to this matter, corroborated as it is by the statement of Ghulam (P. W. 17), leaves no doubt in my mind that the girl was raped. This means that Fazal Dad appellant came in very close contact with Mst. Sarwar Jan and his identification by her, therefore, has a good deal of weight. Another piece of evidence against Fazal Dad appellant is that on the 6th of April 1953, during the course of investiga tion by the police, he made a confession which was recorded by Mian Abdus Sattar, Magistrate Ist Class, under section 164 of the Code of Criminal Procedure. The learned trial Judge has held that the confession was neither relevant nor admissible in evidence, because the Magistrate did not ask sufficient questions from Fazal Dad to satisfy himself that the confession was voluntarily made. The Magistrate appeared as a witness and, while admitting that the only questions that he asked Fazal Dad were those mentioned in the printed form on which he recorded the confession, added that he was satisfied that the confession was made voluntarily. The confession was recorded on the printed form prescribed by this Court long ago, and which had since been amended by Correction Slip No. 73/X2FS dated the 14th of January 1953, which is printed in Correction Pamphlet No. 26 dated the 15th of April 1953, of Volumes III of Rules and Orders of this Court. The confession, as already mentioned, was recorded on the 6th of April 1953 and it is, therefore, possible that the Magistrate did not know that the form for recording confes sions had been amended. But even if one were to assume that as the Correction Slip is dated the 14th of January 1953, the Magistrate knew that the form for recording confession had been altered, I do not see how the confession can become irrelevant or inadmissible on the ground that the questions mentioned in the form prescribed by this Court had not been asked from Fazal Dad appellant. The question whether or not a Magistrate, who records a confession under section 164 of the Code of Criminal Procedure, was satisfied that the confession was voluntarily made is one which will have generally to be decided on the statement of the Magistrate because it relates to the state of his mind at the particular time. Subsection (3) of section 164 of the Code of Criminal Procedure, which governs the matter, is in the following terms :‑ "A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memoran dum at the foot of such record to the following effect :‑ I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Sd.) A. B., Magistrate." Though this subsection makes it incumbent that the person brought before a Magistrate during the course of investigation to make a confession should be told that he was not bound to make a confession, and if he does so, it may be used as evidence against him, yet it leaves it to the Magistrate to ask such questions as he considers necessary to satisfy himself that the confession was being made voluntarily. The mere fact that the questions prescribed by this Court in Correction Slip No. 73 dated the 14th of January 1953 were not asked could not by itself be sufficient ground for holding that the Magistrate, who recorded the confession, was not satisfied that the confession was voluntarily made as the confession will be irrelevant under section 24 of the Evidence Act only if it appears to the Court called upon to deal with the confession that it had resulted from inducement, threat or h promise proceeding from a person in authority. The mere fact that the questions mentioned in the instructions issued by this Court are not asked cannot be held to prove that the confession was the result of inducement, threat or promise, though the Magistrate who fails to ask those questions will be remiss in the discharge of his duties. It is for the Court, before which a confession is sought to be used, to decide whether or not section 24 hits the confession and if a Court is satisfied that in spite of the instruction, as distinguished from mandatory provisions of law, not having been satisfied the confession was voluntary, non‑compliance with the instructions contained in the printed form prescribed by this Court would not be sufficient ground for holding that the confession was irrelevant or inadmissible. In the statement that Fazal Dad made before the committing Magistrate and the learned trial judge he took up the position that the confession was the result of police torture and pressure. He said at the trial that the Sub‑Inspector induced him to make a confession by saying that if he made it he will be released. He added that the Sub‑Inspector with a stick in his hand was sitting in a chair in the court room of the Magistrate who recorded his confession and told him that he had obtained his remand to police custody for five days and if he did not make a confession as he was desired to do he would be set right. There is absolutely nothing on the record to even suggest that what the appellant stated with regard to his confession having been induced was correct. As worded section 24 of the Evidence Act does no require strict proof that the confession has resulted from inducement, threat or promise but that does not mean that the Court can declare the confession irrelevant even if there is no material to suggest that the confession was not voluntary. Considering the evidence on the record as a whole I have arrived at the conclusion that the confession made by Fazal Dad was voluntary and should not have been kept out of consideration by the learned trial judge. In this confession (Ex. P/R) which was retracted, Fazal Dad said that he had hit the deceased with the reverse side of the hatchet and his companions also hit the deceased with their respective weapons. Prosecution led evidence that Fazal Dad appellant produced a hatchet which was found by the Serologist to the Government of Pakistan to be stained with human blood. This evidence, however, cannot help the prosecution because on the record it is not established that the article examined by the Serologist was the same which was recovered from the possession of this appellant. Another fact relied upon by the prosecution against this appellant is that when examined by Dr. Qadir Bakhsh (P. W. 2) on the 28th of March 1953 he was found to have two injuries on his person which, according to the doctor, must have been received by him near about the time when the murder of Abdul Karim was commit ted. The injuries were minor in nature and I do not think that they can render a safe corroboration to the other evidence. But the statements of Mst. Sarwar Jan, Mst. Azeeman and Ghulam approver corroborated by his retracted confession prove beyond all reasonable doubt that Fazal Dad appellant took part in the incident at the house of Abdul Karim deceased on the night when that poor man was murdered. I will now deal with the case of Jumma appellant. There was the recovery of a weapon at his instance but that evidence has to be kept out of consideration for the reason which has already been given while considering the evidence with regard to the recovery of a weapon from Fazal Dad appellant. We have, however, against this appellant the statements of Ghulam (P. W. 17), and Mst. Sarwar Jan (P. W. 19) that he was one of the culprits. These statements are corroborated by the fact that Mst. Sarwar Jan (P. W. 19) identified Jumma appellant in the identification parade held under the supervision of Mr. Saeed‑ul‑Hassan, Magistrate, on the 30th of March, 1953. At this parade Ashraf (P. W. 22) also identified Jumma appellant but as Ashraf was not examined on this point in Court identification by him at the parade is no evidence against Jumma appellant. I see no reason for not accepting the evidence of the two eyewitnesses who are not shown to have any animus against him and I hold, therefore, that it was established that Jumma appellant had taken part in the incident which resulted in the death of Abdul Karim. I will now deal with the case of Sharif appellant. He is named by Ghulam approver (P. W. 17), Mst Sarwar Jan (P W. 19), Mst. Azeeman (P. W. 20) and Muzaffar (P. W. 21) as one of the culprits. It is, however, proved that for about ten days after the occurrence Mst. Sarwar Jan, Mst. Azeeman and Muzaffar did not tell the police that Sharif appellant was one of the culprits. The reason for the name of this appellant not having been disclosed may have been that he had come to the house of the deceased on the invitation of Mst. Sarwar Jan but the fact remains that the inmates of the house did not name him for a very long time during the investigation though he was known to them. Against Sharif appellant there is left the statement of the approver Ghulam (P. W. 17), but as that statement has nothing to corroborate it with regard to the participation of Sharif appellant, it cannot be accepted as sufficient evidence for conviction. The appeal of Sharif is accepted and he is acquitted. The question that now arises is what offences Fazal Dad and Jumma appellant, who have been held to have participated in the fatal incident were guilty of. The evidence shows that at the time of the incident Fazal Dad appellant carried a hatchet, while Jumma carried a spear, though the statement Muzaffar (P. W. 21) with regard to the weapons carried by these appellant is not very clear. I am satisfied that six persons took part in the incident and, though three of the alleged culprits have been acquitted on account of insufficiency or evidence against them, there is nothing to prevent the' application of section 149, P. P. C. I am aware that some judicial decisions have laid down that unless the identity of five or more persons were established section 149 could not be applied, but I must respectfully dissent from that view. Section 149 does not require that at least five participants must be convicted before that section can apply and that cannot be the law because the identity of some of the rioters may, in many cases, be in doubt. In this view of the matter if the common object of the unlawful assembly, of which Fazal Dad and Jumma were two members, was to cause death or death was known to be the likely result, all will be guilty of the offence of murder in spite of the fact that some of them may not have taken part in the beating given to the deceased. It appears that the common object of the intruders was to carry away Mst. Sarwar Jan, but as they carried dangerous weapons, like hatchets and spears, it may be safely presumed that they knew that in case of resistance death of one or more of the inmates of the house was the likely result. But even if it were held that the number of the culprits was less than five I see no difficulty in applying section 34 of the P. P. C. to the case of Fazal Dad and Jumma appellants. The evidence given by Ghulam (P. W. 17), Mst. Sarwar Jan (P. W. 19), Mst. Azeeman (P. W. 20) and Muzaffar (P. W. 21) shows clearly that Fazal Dad and Jumma appellants took part in the beating given to Abdul Karim deceased. This beating was very severe as would be clear from the nine injuries, which Dr. Abdul Qayum Malik, Medical Officer, Civil Hospital, Rawalpindi, found on the' dead body of Abdul Karim at the time of the post‑mortem examination held on the 13th March 1953. On dissection the doctor discovered that the right frontal, parietal and occipital bones were fractured and that 6th, 7th, 8th, 9th, 10th and 11th left ribs were also fractured. The liver was ruptured and so was the right kidney. The number and nature of injuries makes it clear that the assailants intended to kill the deceased and as the circumstances bring the case within the ambit of section 34 of the P. P, C, the conviction of Fazal Dad and Jumma appellants for the offence of murder was justified and I would maintain it. This leaves only the question of sentences to be dealt with. It was a serious crime in which the owner of the house was mercilessly done to death when he protested against the mis-behaviour of the assailants and, in my view, the only appropriate sentence that could be imposed on Fazal Dad and Jumma appellants was hanging by the neck till they he dead. I would, therefore, dismiss the appeal of Jumma and Fazal Dad appellants and confirm the sentences of death imposed on them. The result, therefore, is that while Criminal Appeal No. 206 of 1954 is dismissed, Criminal Appeal No. 207 of 1954 is accepted as is Criminal Revision No. 499 of 1954. Sharif, whose appeal has been accepted, shall be set at liberty forthwith. B. Z. KAIKAUS, J.‑I agree. A. H, Order accordingly.