P (PLP)

MOHAMMAD SHARIF, J,‑For causing the death of one Usman and injuries to his other three brothers on the forenoon of 26th January 1949, in the abadi of Chak No. 586‑G. B , nine persons were placed on trial. By order dated 21st June 1949, the learned Sessions Judge, Lyallpur, acquitted all of them. The Crown has now come up in appeal against the order of acquittal. One Fateh Muhammad mason had taken up his residence in the village for about two years. For the past few months he had shifted to ihata of Najib Ullah, etc., respondents. It is alleged that Fateh Muhammad gave his younger daughter Mst. Amiran in marriage to Saif Ullah. Suddenly Fateh Muhammad with his daughter, and family disappeared and went to live in Chak No. 657/8 where Yar Muhammad, one of the injured persons, used to live and work. Saif Ullah and his brothers suspected that the sudden migration of Fateh Muhammad from the village was due to the instigation of Yar Muhammad and his brothers. This produced resentment in the minds of Saif Ullah and his relations against Yar Muhammad and his brothers. On the evening preceding the murder, Yar Muhamrnad came to Chak No. 586‑G. B. In the morning at about 10 A.M. Yar M1ham mad and his brothers Usman, Ghulam Muhammad and Suleman were sitting in their courtyard. Suddenly the nine respondents, armed with spears and sticks, trespassed into the courtyard. They demanded that either 141st. Amiran should be produced or some other girl be given in her place, or they would kill them Yar Muhammad and his brothers protested that they had nothing to do with Fateh Muhammad. This, however, failed to satisfy then. An attack was made in the course of which Usman was killed on the spot and his three other brothers seriously wounded. On hearing the hues and cries, Hayat son of Murad, Ahmad son of Dad, caste Mussalli, and Anwar Khan son of Sikandar Khan, Pathan, reached. They witnessed the occurrence. On their arrival the accused made good their escape. Suleman was carried to the police station ten miles away in an injured condition. He lodged the first information report at 4‑30 P.m. The cause and the manner of the attack were clearly mentioned, as also the injuries caused by one or other of the accused. It was further mentioned that the complainants had also caused injuries to Faiz, Azim and Hayat in self‑defence. The Sub‑Inspector of Police reached the village the same day. He arrested Dost Muhammad and Faiz Muhammad on the 27th January 1949. Faiz Muhammad had injuries on his person. On 31st January 1949, a spear, was recovered at the instance of Faiz Muhammad. , The Post‑mortem examination was made on 28th January 1949 at 4‑30 P.m. Usman deceased was 38 years old. He had one incised wound above the level of the umbilicus, another on the left side of the penetrating into it, another incised wound below the umbilicus and two more incised wounds, one in the middle of the right groin and the other penetrating the abdomen and communicating with injury No.

1. In addition, there was a contusion mark on front of the right shoulder. Death was due to shock and haemorrhage as the result of abdominal injuries caused by sharp‑edged sharp‑pointed weapon. The injuries could be the result of six separate blows. They were more likely caused with a spear and not with a hatchet. Suleman, aged 40‑45, had five injuries in all. Two were stab wound, one on the right scapula and the other over the left lower ramus of mandible bone which was fractured. The lower incisor teeth had become loose and were pulled down. There was a contused wound on the left wrist ulnar side, a punc tured wound on the left flank and a bruise mark on the left scapula. Injuries Nos. 1 and 2 were grievous and the rest were simple. Ghulam Muhammad, aged 26, had a contused wound near the left parietal protuberance and a stab entrance wound penetrat ing the chest at the front part of the chest. Injury No. 2 was grie vous and dangerous to life. It was caused with a sharp‑pointed weapon like a spear. Yar Muhammad, aged 32, had a contused wound skin deep on the top of the head and three stab wounds one on the outer aspect of upper part of left thigh, one on the upper part of the left shin outer aspect with corresponding exit wound and one above the left knuckle. Injury No. 1 was caused with a blunt weapon and the rest with a sharp‑pointed weapon. The following accused were found to have marks of in. juries:‑ Faiz Muhammad was examined on 27th January 1949 at 5.30 P.M. He had: (1) A lacerated wound with irregular dimensions over the first phalange of the left hand mid finger palmer side. (2) A contusion over the right shoulder, 4" X 3 ". Both the injuries were simple and caused within 15 to 18 hours. Muhammad Azim was examined on 26th January 1949 at 12 noon. He had: (1) A contused lacerated wound 4" X " X " over the left side of the head, direction before backwards. Blood was oozing out of the wound. (2) A contused lacerated wound 3" X " X " over the left side of the head, direction before backward. Fresh blood oozing out of the wound. (3) A contused wound " X 1/3" X 1/3" over the dorsum of right hand. Fresh blood oozing out of the wound. The injuries were simple, caused with blunt weapon, within 24 hours. Hayat Ullah accused was examined on the same day and at the same time. He had a contused lacerated wound 3" X " X " over the left side of the head, horizontal in direction, 4" above left ear. Fresh blood oozing out of the wound. The injury was simple, caused with a blunt weapon within 24 hours. Umar Khan accused was also examined on the same day and at the same time as the other two mentioned above. He had a contused lacerated wound 2" X " X ", over the left side of head, 4" above the left ear, blood oozing out of the wound; and a super ficial contused wound " x 1/16" skin deep, just above the left eyeball. The injuries were simple caused with blunt weapon, within 24 hours. Saif Ullah accused was examined on 27th January 1949 at 8‑30 A.M. He had: (1) An abrasion mark over the right side of the face below the right eye, irregular surface covered with‑dried blood clots. (2) An old injury over the left foot at the phalangeal joint of great too. Injuries were simple, caused with a blunt weapon. Injury No. 1 was of about 24 hours duration and injury No. 2 was about a week old. The accused denied the charge. Saif Ullah stated that he was married to 161st. Amiran, daughter of Fateh Muhammad. He took no part in the fight and was falsely implicated by Yar Muhammad. As to his own injury, he said that he was hurt by a fall in the usual course of his agricultural work. Muhammad Khan denied his presence at or participation in the fight. Jahan Khan said that he` pads falsely implicated by Ullah lambardar as the latter's sister had gone away with his brother Najib Ullah and was living with him as his wife. His other brother Mir Abdullah had enticed away the wife of Anwar P. W. and married her. Umar Khan accused, Ata Ullah lambardar for his prose cution. As to his injuries, it was said that while chop ping the branches of a kikar tree for making a hedge, some branches struck his head one day‑ before the alleged occur rence. Faiz Muhammad said that he and his brother had beaten Ahmad Khan cousin of Ata Ullah lambardar and for that reason he was falsely involved. Further, he, as a member of the pancha yat, was a party to the passing of a decree in a theft case against, Yar Muhammad. As to his injuries, he said that he fell from his cart and was hurt. Muhammad Azim also put the blame for his prosecution upon Ata Ullah lambardar. It was further claimed that his family relations with Saif Ullah, etc., were not good. As to his injuries, it was said that he and his brother Hayat fought with each other one day before the occurrence and received the injuries. Hayat Ullah said that he was also falsely involved by Ata Ullah and Yar Muhammad. He received injuries in the course of a fight with his brother Muhammad Azim one day before the occurrence. Dost Muhammad said he knew nothing and was not present in the village. Najib Ullah stated that he had developed illicit connection with the wife of Ata Ullah lambardar. She was divorced and he married her. He was also once got bound down under section 107, Criminal Procedure Code, along with Saif Ullah, etc. He was not in the village on the day of the alleged fight. The learned Sessions judge was not satisfied that there existed a motive on the part of the accused to beat Suleman and his brothers. The main reasons which influenced the learned Ses sions judge in this conclusion were that there was no connection proved between Fateh Muhammad and the complainants, that Yar Muhammad denied that he was living in Chak No. 657/8, and that about a fortnight before the occurrence the complainants categorically denied that they had anything to do with the mig ration of Fateh Muhammad, and Najib Ullah, on hearing this, kept quiet. Fateh Muhammad is a mason and the complainants are carpenters. Both belong to the artisan class and as such they may be closely connected with each other. The accused are Pathans and apparently have nothing to do with the car penters or the masons. It is, however, admitted by Saif Ullah that Mst. Amiran, daughter of Fateh Muhammad, had been married to him. The marriage between a Pathan and a daughter of a masqn had taken place. On the disappearance of Mst. Amiran and her father Fateh Muhammad, the Pathans, who may be proprietors in the village, could not apparently take this lying down. Yar Muhammad was living in the neighbouring village. Rightly or wrongly, it was suspected by Saif Ullah that since Mst. Amiran and her father had moved to Chak No, 657/8, Yar Muhammad, who was said to be a No. 10 badmash, could not be wholly unconnected with the move. It would not make much difference whether Yar Muhammad worked only in Chak No. 6578 or lived there as well. The fact remained that Yar Muhammad had a very close association with Chak No. 657/8 and the migration of Fateh Muhammad to that place produced feelings of enmity or annoyance against Yar Muhammad. The state of mind of the accused is more to be looked to in judging of the motive for a crime. It, is not necessary that the motive must be a true and substantial one. The real question is what was animating the accused in a particular act committed by them. The other fact that Najib Ullah kept quiet after hearing the protestations of innocence from the complainants, did not mean that Najib Ullah felt satisfied with the explanations. The com plainants, to the best of their own light, were referring to certain circumstances which they thought were responsible for the attack upon them on the morning in question. There is nothing extra ordinary if in addition to a motive alleged by the complainants there was some other matter which might have actuated the accused in making the attack. It cannot be denied that but for what happened on that day and for the suspicion about the con duct of Yar Muhammad and his brothers in the matter of the migration of Fateh Muhammad and his daughter, no other cause of quarrel or dissension existed between the two parties. It would not, therefore, be correct to say that the existence of the motive alleged was wholly disproved. The evidence of Anwar (P. W. 16) and Hayat (P. W. 17), the other witnesses produced by the prosecution, was pot con sidered credible. Anwar stated that he was going towards his land and was passing through the bazar to get his toka from Dullah blacksmith who lived close to the house of the complain ants. On hearing the noise he reached the spot and witnessed the fight. He out of fear did not interfere, nor did the other witness Hayat. His house was situated in another direction and in order to go to his land, it was not necessary to pass by the house of the complainants. The story of toka was also not found convincing. According to Anwar, he got his toka imme diately after the fight from Dullah Lohar and went home. The opposite was deposed to by Hayat who said that Anwar had a toka in his hand and he did not go so the blacksmith's shop after the fight. Anwar like the 'accused is a Pathan. He had his own grievance, against some of the accused. He had to divorce his wife, Mst. Jannat and she later married Mir Abdullab, a brother of Faiz Muhammad accused. This Mir Abdullah was later mur dered. The presence of Anwar (P. W. 16) at the spot is not free from doubt. The learned Sessions judge had reasons to dis believe him and he could not be wrong in doing‑so. Hayat (P. W. 17) is a labourer and lived at a distance of about 12 karams from the house of the complainants. He was attracted by the noise and on reaching the scene, he saw all the nine accused armed with different weapons. He also stated the part played by one or the other accused, He revealed that he reached the spot before the fight had actually commenced. He did not enter into the house as he was empty handed. He or Anwar P. W. did not actively interfere and simply called upon the parties not to fight. He denied that he had ever been a tenant of Ata Ullah lambardar. A look at the plan would show that his house is not far off and lies almost opposite to that of the complainants. One door opens out towards the complainants' side and the door of another kotha on the back is towards the bazar on the east. Hayat P. W. was in a position to reach the house of the complainants immediately after hearing the noise. A street separates the house of the complainants and that of the witness. Whether a person stood in this street at one or the other end, he was in a position to see what was happening inside the courtyard of the complainants. His other relation Ahmad, who went to the spot, was not produced by the prosecution and the Public Prosecutor at the end of the trial, stated that he gave up Ahmad as having been won over. There is no material on the record to suggest that Ahmad had gone over to the other side. Ahmad may not have been pro duced to guard against any discrepancy arising between his evi dence and that of his nephew Hayat. In any case, the statement of the Public Prosecutor would show that Ahmad was not likely to support the story given by Hayat. Under these circumstances, it would not be safe to place such reliance upon the testimony of Hayat. Both these witnesses appear to be directly or indirectly con nected with Ata Ullah lambardar. Ata Ullah lambardar him self was not examined in the case. He, however, went with the injured persons to the police station. As a matter of fact, he had reached the police station a little ahead of the injured persons. Ata Ullah lambardar had to part company with his wife presumably as she was carrying on with Najib Ullab ac cused. It is admitted that she is now the wife of Najib Ullah accused. This personal reason may have instigated Ata Ullah to take an active part in the whole case, and it is not surprising if out of enmity, he prevailed upon the com plainants to name some of the persons with whom. he had his scores to settle. The learned Sessions judge was on strong ground in dis carding the evidence of Anwar and Hayat P. Ws. In his long judgment, however, he has not given any reason why the evidence of the injured persons should be wholly kept out of consideration. No reference was made to this important piece of evidence. It is beyond dispute that one brother was killed and three seriously injured on the morning of 26th of January of 1949. It was broad daylight, and there could be no question of mistake as to the identity of the assailants. It is another matter that some persons, for one reason or another, might have been added to the persons who actually took part in the assault, but it cannot be believed that the victims of the attack could not recognize who had caused them injuries. The statement of the injured persons are quite clear, straight forward and impressive. In the very first information report, Suleman had clearly specified the five accused who were armed with spears and the four who carried sticks. Muhammad Khan was credited with the first injury on the chin, the second on the left flank and the third on the right shoulder. Hayat Ullah gave a blow with a stick on the back. Usman was said to have been killed by Najib Ullah and Saif Ullah with spear thrusts in the abdomen. Yar Muhammad received a spear blow in the abdomen at the hands of Azim. The injury on his head was given by Jahan Khan and on the back by Umar Khan. Faiz Muhammad accused gave a spear blow in the abdomen of Ghulam Muhammad and Dost Muhammad followed with a blow on the head. The same account is given by each one of the three brothers at the trial, and there must be some strong reasons for discarding the direct evidence of the victims of the attack. As a matter of caution; it would not be proper to act on the uncorroborated testimony of the complainants. It may, however, be acted upon to the extent to which it is supported by other circumstances, e.g., injuries upon some of the accused. It has been shown above that five accused carried marks of in juries on their persons, and if these injuries could be connected with the occurrence, their presence at the fight would be established by unimpeachable evidence. It may be added, that the place of the fight is not in dispute and the attack was made upon the complainants in their own house. Faiz Muhammad accused is married to the sister of Saif Ullah accused, whose other brothers are Muhammad Khan, Jahan Khan, Umar Khan and Najib U11ah accused. Faiz Muhammad bad two injuries, said to have been received within 15 to 18 hours of the examination on 27th of January 1949, at 5‑30 P.M. According to this calculation the injuries could have been received late in the evening of 26th of January 1949 and for this reason the learned Sessions judge was of the opinion that the injuries of Faiz Muhammad "cannot be traced to the time of the alleged assault". The medical opinion could not be very exact. The duration could only be given approximately. No one pursued the matter or Dr. Khurshid Hussain (P. W 3) might have admitted that the period could be extended to 24 hours or a little more. It is, however, significant that the injuries to Faiz Muhammad in the course of the fight were unequivocally referred to in the first informa tion report which was taken down at 4‑30 P.M. on 26th of January 1949. According to the medical opinion given above, the injuries upon Faiz Muhammad had not yet been inflicted. Could Suleman foresee that by the time the police entered upon investigation, Faiz Muhammad shall have received injuries from some unknown quarter and his own version would receive direct support from the presence of the injuries? I cannot believe that the injuries upon Faiz Muhammad had not been given at the time when Suleman left for the police station to make the report. Faiz Muhammad bad received injuries in the fight, and there was no evidence produced by any of the accused to show that Faiz Muhammad received his injuries at some other place and at some other time. The participation of Faiz Muhammad, therefore, can not be doubted. Azim accused was examined on 26th of January 1949 .at 12‑0 noon, i.e., within two hours of the alleged fight. The doctor simply noted that the injuries were simple and caused with a blunt weapon within 24 hours. In the case of fresh injuries, the period is usually given "within 24 hours". It would cover, any thing from one hour to 24 hours and does not necessarily mean that it was nearer the twenty‑fourth hour than any other hour. The learned Sessions judge's main criticism was that the injuries should have been described as "absolutely fresh". They were really "absolutely fresh', as "fresh blood oozing out of the wounds" was clearly mentioned in the medical certificate. The same remarks would apply to the case of Hayat Ullah accused. In his case to "fresh blood" was oozing out of the wound. The statement of Yar Muhammad (P. W. 15) that he alone injured Azim and Faiz Muhammad accused and that none of his brothers "hit any of the other accused, was too literally con strued by the trial Judge. He could be sure about the persons whom he had struck, but in the melee and the confusion of the fight, he could not be. positive as ,to the exact part played by any of his other brothers. He may not have seen Suleman giving a blow, ‑but there is no reason why Suleman should not be believed when he stated that he gave a lathi blow to Hayat Ullah and particularly when Hayat Ullah is found to have had marks of that blow. Two other accused, i.e., Umar Khan and Saif Ullah were found to have been injured. Umar Khan, as already observed, was examined at the same time as Azim and Hayat Ullah. Blood was still oozing out of his wounds and the injury by him could very well have been received in the‑ fight which took place a few hours before his examination. In his statement, he had mentioned that he received the injury accidentally .while chopping a kikar tree one day before the occurrence, i.e., on the 25th January. In that case, the wound should not have been fresh and the blood should not have been oozing out of it. This state ment is pulpably wrong and the injury by Umar Khan was received in the fight. Saif Ullah was examined on 27th of January 1949 at about 8‑30 A.M., i.e., about twenty‑three hours after the alleged fight. Injury No. 1 in his case was found to have been caused ,within twenty‑four hours. His explanation was that be was hurt in big usual zamindara work. The injury was on the right‑ side of the face below the right ear with irregular surface covered with dried blood clots. It was up to him to explain how that injury on that part of the body and in that condition could have been received by him in the course of his ordinary zamindara work. No other evidence was produced in support of his allegation. His injury too, must be held to have been received at the time when the fight took place in the house of Usman deceased and his brothers. The participation of the five accused mentioned above in the attack upon Usman and his brothers on the forenoon of the 26th of January 1949 is clearly proved by the evidence of the victims of the attack and corroborated by the presence of injuries upon the accused themselves. The remaining four accused, three of whom are none other than the real brothers of Saif Ullah accused, may or may not have been there. Their presence was in the fitness of things, but the absence of inju ries on their persons would make it unsafe to hold the offence proved against them. The part played by Ata Ullah lambardar may to some extent be responsible for implicating some of these persons falsely, particularly Najib Ullah against whom he had a direct cause for enmity. It would, therefore, be expedient to give the benefit of doubt to the four accused who did not receive hurts in the course of the fight. The order of acquittal of these four persons, i.e. Muhammad Khan, Jahan Khan, Najib Ullah and Dost Muhammad, is maintained. The next question that requires consideration is what was the offence committed by the five accused whose complicity in the attack has been held proved? It was urged by the learned coun sel for the Crown that all of them would be liable under section 302 read with section 149 of the Penal Code. They constituted. an unlawful assembly and their common object was either to extract information about the whereabouts of Mst. Amiran, who was said to have entered into a marriage contract with Saif Ullah accused, or to take away Mst. Amiran if she was found there, or to punish Yar Muhammad and his brothers for their effront in having supported Fateh Muhammad against Saif Ullah and his brothers. Some of the accused carried spears, and it could be legitimately presumed that if their demand was not met with, they might use their weapons, the likely result of which would be grievous injuries with a sharp‑edged weapon. The death of a person as a result of an injury with a sharp edged weapon was not beyond the bounds of possibility.' It was, however, rather remote, and the more likely result was the infliction of grievous injuries with a sharp‑edged weapon. In other words, an offence under section 326, Penal Code was much more likely than one under section 302 Penal Code. In similar cases I had an occasion to deal with this aspect of the case and A. I. R. 1947 Lah. 188 and P. L. D. 1949 Lah. 453 may be referred to in this connection. The five accused would, therefore, be guilty under section 326 read with section 149 of the Penal Code. As to the sentence, Saif Ullah accused was one of the persons directly responsible for the injuries upon the abdomen of Usman. He and his other companions gave several thrusts with spears on that delicate part of the body which resulted in immediate death. It. is not clear which of the abdominal injuries really proved fatal; nor is it proved whether it was the work of Saif Ullah or some other person. On this material it is not possible to convict Saif Ullah under section 302, Penal Code, but his liability under section 325 read with section 149, Penal Code, should be punished with more than ordinary sentence. A sentence of ten years' rigorous imprisonment upon him shall not be excessive. As to the other four accused, according to the prosecution itself, they caused simple . and grievous injuries to Suleman, Ghulam Muhammad and Yar Muhammad, P. Ws. 12, 13 and 15, respectively. A sentence of five years' rigorous imprisonment in the case of each of them would fully meet the ends of justice. The result is that the appeal of the Crown against Saif Ullah, Umar Khan, Faiz Muhammad, Muhammad Azim and Hyat Ullah is accepted, the order 'of aquittal passed in their favour is set aside and they are convicted under section 326 read with section 149, Penal Code. Saif Ullah is sentenced to ten years' rigorous imprisonment while the remaing four to five years' rigorous imprisonment each. The appeal of the Crown against Muhammad Khan, Jahan Khan, Najib Ullah and Dost Muhammad is dismissed. MUHAMMAD MUNIR, C. J.‑‑I agree with my brother Muham mad Sharif that Saif Ullah, Umar Khan, Faiz Muhammad, Muhammad Azim and Hayat Ullah respondents are proved to have taken part in the transaction which resulted in the death of Usman and the injuries to Suleman, Ghulam Muhammad and Yar Muhammad. This finding is based on a very cau tious estimate of the evidence for the prosecution because, though the evidence against all the respondents is the same, and from the very beginning has been consistently to the effect that they all took part in the trans action, I feel that the association of Ata Ullan with the complainants in this case presents the possibility that the respondents, who do not bear any injuries on their persons, might have been brought into the picture by the informant and the witnesses for the prosecution at the instance of Ata Ullah, who, undoubtedly, is on inimical terms with the family of the respondents. I have carefully considered each and every argument given by the learned Sessions judge in support of the acquittal, but am satisfied that none of these reasons was sufficient, by itself or in conjunctions with others, to warrant an acquittal in this case. I can discover no reason for distinguish ing the case of Faiz Muhammad from that of, the others, be cause the medical evidence about his injuries cannot be accepted as establishing that the injuries to him could not have been caused in the transaction in which the other respondents were injured. I, therefore, agree with my brother that all the respondents who had injuries on themselves can safely be held to have been participants in the transaction which ended in the death of Usman and in the course of which Suleman, Ghulam Muhammad and Yar Muhammad were injured. The next question is what offence should the respondents be convicted of. Consistently with the view expressed by him in two earlier cases, namely, 1949 P. L. D 453 and 1947 L. 188, my learned brother takes the view that the offence committed by the five respondents, with the exception of Saif Ullah, cannot be taken to go beyond section 326 of the Penal Code. In order to determine this question, it has first to be ascertained with what object the five respondents and their companions, because there can be no doubt that they must have been accompanied by others whose identity we cannot definitely determine, came armed to the house of the deceased. The evidence is generally to the effect that the respondents had a motive to kill the four injured persons because of the suspicion they had of the injured persons having a hand in the disappearance of Mst. Amiran, who had been lawfully betrothed to Saif Ullah about a month before the occurrence, and that they did come to Usman's house with the express object of committing murder. It is obvious that if we accept this version, everyone, who was member of the unlawful assembly, would be guilty of murder and, because the members of that assembly had come with the intent to murder, every one of them should be sentenced to death. There is, however, some indication in the evidence of Ghulam Muhammad (P. W. 13) that the respondents might not have come to the deceased's house with the intention to murder. This witness says that before the respondents came, Hayat and Ahmad were sitting in the house, that on arrival the respondents sat down and started talking about 141st. Amiran's affair and that it was some time after this that they assaulted him and his brothers. This evi dence, to my mind, is capable of being made the basis of a finding that having heard of Yar Muhammad's return to the village, the respondents might have thought that Mst. Amiran also must have been brought by Yar Muhammad with him and that their primary object was to kidnap Mst. Amiran, if they found her present in the house. In the circumstances, I think, it would be safer to attribute that conduct to the respondents rather than a pre‑arranged design to commit murder straightaway. The question, therefore, is that if the object of the respondents was to kidnap, and they came armed with spears and other lethal weapons with a view to accomplish that object, whether they can be found to have known that in prosecution of that object murder was likely to be committed. I am quite clear in my mind that in such circumstances such knowledge must be attributed to the respondents, because when several persons set out on a kidnapping expedition after arming themselves with several spears, in this case definitely three, but in all proba bility more, they do know that the spears are intended to be used and that the indiscriminate use of such weapons does more often than not lend to murder. As was remarked by a Division Bench of this Court in Fatnaya Lal Khan and others v. Emperor, A. I. R. 1942 Lah. 89, when a body of heavily armed men set out to take a woman back by force they must‑be taken to have known that some one was likely to be killed before the day was over and that consequently in such a case if one of the party commits murder all the members of the party are liable for that murder by reason of section 149 of the Penal Code. There are some other cases, as for instance, Emperor v. Ramji Lal Budh,7, A. I. R. 1941 Lah. 117, in which members of an unlawful assembly were held liable to be convicted under section 302 of the ,Penal Code, where one of them had com mitted a murder in prosecution of the common object of the assembly. Those cases are, however, somewhat distinguishable, because they belong to that category of cases where from the very start the intention of rioters was to seize a woman from some one else's possession by killing or removing all resistance to such seizure. Such cases clearly fall within the purview of section 148 by which all members of an unlawful assembly are liable for an offence committed by one of them in prosecution of the common object of that assembly. In the present case, there is nothing to show that Mst. Amiran was actually in the house and there is no evidence that any attempt was made to kidnap her. The fact, however, remains that several persons armed themselves with spears and set out with the object of remov ing her by force if she were found in the house. As a general rule, if a body of men armed with weapons like spears go out I to commit and offence in the commission of which spears are intended to be used, whether the crime be robbery or abduction or the taking of forcible possession of land or water, it must be presumed that every one of such persons knows that killing would be the likely result of the use of such weapons. I do not see why that rule should not be applied to the present case and all the persons, whose participation in the transaction we have held proved, be not held liable for the death of Usman whose abdomen was pierced with at least three spears and who in con sequence of the injuries died on the spot. I, therefore, regret my inability to share the view of my. learned brother that the offence committed in this case is merely that of causing grievous hurt and not of murder. I would, accordingly, convict Saif Ullah, Umar Khan, Faiz Muhammad, Muhammad Azim and Hayat Ullah under section 302 of the Penal Code in respect of the injuries to Usman and sentence them each to transportation for life. Najib Ullah and Saif Ullah are said to have attacked Usman, but, since we are acquitting Najib Ullah, it cannot be said whether the fatal injuries to Usman were caused by Saif Ullah. I, therefore, refrain from passing the 'death sentence on Saif Ullah. Each of the five respondents is also convicted under section 326 of the Penal Code for the injury caused to Ghulam Muhammad, Yar Muhammad and Suleman and sentenced to seven years' rigorous imprisonment under section 326 of the Penal Code. These sentences will, however, run concurrently with the sentence of transportation for life. MUHAMMAD MUNIR, C. J. AND MUHAMMAD SHARIF, J. As we differ on the question whether the offence committed is murder or grievous hurt, the case will be heard on that point under Clause 26 of the Letters Patent by Rahman, J. JUDGMENT S. A. RAHMAN, J.‑‑‑On the 26th of January 1949, within the area of Chak No. 586‑G. B., a riot took place, in the course of which, fatal injuries were caused to one, Usman, and his three brothers also received grievous and simple injuries at the hands of the rioters. Nine persons were tried in this connection by the learned Sessions Judge, Lyallpur, and acquitted. 'The Crown appealed against the acquittal. A Division Bench composed of my Lord the, Chief justice and my brother Sharif, J heard the appeal. The Division Bench has come to the conclusion that the appeal should be allowed in respect of five of the accused persons. The learned judges, however, have differed as to the nature of the offence or offences of which these accused should be held guilty, and consequently that point alone has been referred for decision to me under clause 26 of the Letters Patent. The facts of the case appear sufficiently from the judgments of my Lord the Chief Justice and my learned brother Sharif J. and need not be set out at length. Briefly it may be stated that the accused party suspected Yar Muhammad, brother of the deceased Usman, to have a hand in the disappearance of 141st. Amiran, daughter of Fateh Muhammad, whose nikah had been performed with Saif Ullah accused. The girl had been taken away by her father from the village and her whereabouts were not known Yar Muhammad returned to Chak No. 586‑G. B. on the evening prior to the occurrence. Next morning he and his brothers were sitting in their courtyard when the nine accused are said to have come up armed with appears and sticks. They demanded that Mst. Amiran should be surrendered to them and in the alternative they threatened to kill them. The protest of innocence on the part of the complainants' party went unheeded and the accused then set upon them with their weapons, with the result mentioned above. The Division Bench, after "a very cautious estimate of the evidence for the prosecution" in the words of my Lord the Chief Justice, has held that five of the accused who bore injuries on their persons were' certainly members of tie unlawful assembly which proceeded to the house of the complainants and committed a riot. My learned brother Sharif J. has put the common object of this unlawful assembly in the form of three alternatives. He has observed that the object was either to extract information about the whereabouts of 141st. Amiran who was said to have entered into a marriage contract with Saif Ullah accused or to take away Mst. Amiran, if she was found there or to punish Yar Muhammad and his brothers for their affront in having supported Fateh Muhammad against Saif Ullah and his brothers. My Lord the Chief Justice, on the contrary, has confined the common object of this assembly to an intention to kidnap Mst. Amiran if they found her present in the house. Both the learned judges have concurred in holding that a pre‑arranged design to commit murder must be ruled out in the circumstances of the case. I respectfully concur in that view. It has been argued before me by learned counsel for the accused that the common object attributable to the unlawful assembly could not be the desire to bring away Mst. Amiran if she was found in the house, on the facts found in this case. They have pointed out that it was extremely unlikely that even if the complainants were privy to the disappearance of Mst. Amiran they would dare to bring the girl to their house in Chak No. 586 G. B., where the accused resided and when they could, therefore, resort to force for obtaining possession of her person. This argument has weight. In my humble judgment, on the facts of this case, it may be legitimately presumed that the common object of the unlawful assembly was both to extract information concerning the whereabouts of the girl and to punish the complainants party for their intransigence in not supplying the requisite information as well as for their suspected part in her disappearance. I cannot bring myself to believe that 'their object was simply to elicit information about the girl. If that had been the case, surely it would not have been necessary for the accused party to go heavily armed as they did. It is in the evidence that several of the accused carried spears while others were armed with dangs. The conduct of the accused in this case, in inflicting very serious injuries on the members of the complainants' family, would militate against the view contended for by learned counsel for the accused, to the effect that the weapons were merely carried frsr the purpose of self defence if the complainants' party showed fight. In my view, therefore, two out of the three objects mentioned by my brother Sharif, J. in his judgment, combined together, could be at tributed safely to the unlawful assembly constituted by the accused. In the state of the evidence on the record, it is difficult to ascribe the fatal injuries on the person of Usman deceased to any particular accused person. Some one of them must have inflicted those particular injuries, but whether it was Saif Ullah accused who is one of the five proposed to be convicted or Najib Ullah who is intended to be given the benefit of the doubt, the matter is left in a state of uncertainty. Section 149, Pakistan Penal Code has been invoked by the prosecution and it has been argued that all the five accused should be held guilty of murder within the meaning of section 3o2, Pakistan Penal Code read with section. 149, Pakistan Penal Code. Sharif, J, has taken the view that the offence committed by the accused did not travel beyond the scope of section 326 Pakistan Penal Code read with section 149, Pakistan Penal Code. On the contrary, my Lord the Chief justice has reached the conclusion, that Saif Ullah, Umar Khan, Faiz Muhammad, Muhammad Azim and Hayat Ullah accused, should be held guilty under section 3o2, Pakistan Penal Code in respect of the injuries to Usman and further, each of these five persons should be convicted under section 326, Pakistan Penal Code for the injuries caused to Ghulam Muhammad, Yar Muhammad and Sulaiman P. Ws. The question then is whether the collective responsibility of the accused for the murder of Usman has been brought home to them under section 149, Pakistan Penal Code or a lesser offence should be held to have been established in the case. In this connection, Sharif, J. has adhered to the view expressed by him previously in Fasi Bakhah v. Emperor (A. I. R. 1947 Lahore 188). and Ghaba v, Crown (P. L D. 1949 Lahore 453). I am in respectful agreement with the observation of Sharif J, in the former authority to the effect that the question of the nature of the offence which can be regarded as having been committed in prosecution of the common object of an unlawful assembly, is one of fact depending upon the circumstances of each particular case. On the facts of the case reported in A. I. R. 1947 Lahore 188, Sharif, J. had arrived at the conclusion that the accused should be convicted only under section 326 read with section 149 of the Penal Code. Teja Singh, J. who was the other member of the Division Bench hearing the appeal in that case, differed from that view and held that all the accused should be held liable for punishment under section 302 read with section 149 of the Penal Code. In that case, some of the appellants carried hatchets while others had dangs and the object of the unlawful assembly was to abduct certain females in the possession of the other party. Look ing to the nature of the weapons and the character of the adventure on which the accused had embarked, Sharif, J. expressed the opinion that the appellants could be presumed to have had the knowledge that the weapons they were carrying might, have to be used and that if they were used, grievous injuries would be the result. On the contrary, Teja Singh J. thought that the argument that all that the appellants knew was likely to be done, was the infliction of grievous bust on person who might come forward to oppose them, ignored both the nature of the crime which the assembly wanted to commit as well as the drastic preparations that they had made. In spite of this difference of opinion, however the learned judges in that case decided it the end to record convictions against the accused person under section 302/149 of the Penal Code, as they had agreed on the sentences to be awarded to the convicts. In the second case referred to by Sharif, J. the accused were armed variously with sticks, hatchets, spears, etc., and their common object was to abduct a female who was in the keeping of the rival party. Sharif, J. remarked in that case, 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. He further expressed himself as follows:‑ "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 and section

326. Where, however, the unlawful assembly in a particular case consists of desperadoes 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. With due deference, I find myself unable to subscribe to the proposition thus had down though I am in agreement with the last portion of this paragraph. My Lord the Chief justice in his judgment has referred to Fatnaya Lal Khan v. Emperor (A. I: R. 1542 Lahore 89). In that case, the members of the unlawful assembly carried spears and other dangerous weapons. Backett, J. pointed out in the course of his judgment that in order that section 149, Penal Code, should come into effect, the offence need not be committed in direct prosecution of the common object of the assembly; it is sufficient that the offence should be such that the members of the assembly knew it to be likely to be committed He further re marked that it was a matter of common knowledge that, in any village of the North‑Western Punjab, when a body of heavily armed men set put to take a woman back by force, some one was likely to be killed before the day was over. The convictions of all the accused in that case under section. 302/14.9 of the Penal Code. were upheld. My attention was drawn to certain other authorities by learned counsel for both sides. Reference was made on behalf of the Crown. inter alia to Hari Singh v. Emperor (A. I. R. 1926 Lah. 4) Parmasher Din v. Emperor (A. I. R 194 Oudh 517). In the former case the members of the unlawful assembly were armed with chhavis and dangs and their common object was to take possession of irrigation water by force. It was held per Zafar Ali J. that as every one of them knew that these weapons were likely to be used with deadly effect, they were all responsible of any one of them inflicted a fatal injury. In the latter case, the view taken by this Court in Rahman v Emperor (I. L. R. 20 Lah. 77; and Emperor v. Ramji Lal (I. L. R. 21 Lah. 554) was quoted with approval. That was a case where some fifteen men gave a beating with lathis to two persons with fatal results. The convictions under section 302 read with section 149 of the Penal Code were upheld by the learned judges. These authorities ; in my opinion, strengthen the stand taken by the prosecution in the present case. Learned counsel for the Crown cited some other authorities as well, which are distinguishable on the facts and which I do not, therefore, propose to discuss in detail. On behalf of the accused, my attention was invited to the two rulings referred to by Sharif J. as well as to Delal Ram v. Emperor (A. I. 'R. 1946 Lah. 222): Dadu v. Crown A. I. R. 1923 Lah. 43 and Raghunandan v. Emperor (A. I. R. 1935 Oudh 52). These authorities do not lend any assistance to the contention raised by learned counsel for the accused as they are all distinguishable on the facts from the present case. In the case reported as Delal Ram Sarup v. Emperor (A.

1. R. 1946 Lah. 222) there was quarrel followed by a fight between, two parties and a pistol which cannot fatal injuries was fired suddenly by one member of a party. It was held on the facts of the case that the other members of the 'assembly were not fixed with the knowledge that such a weapon was going to be used. In Dadu v. Crown (A. I. R. 1923 Lah. 43) the assembly merely carried sticks and death was. the result of shock following multiple injuries caused to the deceased. The accused were held guilty under section 325/149 of the Penal Code, and I consider that this decision was justified by the peculiar facts of that case. In the Oudh case, the man who was killed had suddenly arrived at the spot and protested at the beating being given to the victims. He was given a fatal blow with a spear, in the abdomen by one of the accused. That was clearly an act not contemplated by other members of the unlawful assembly, and so the principle of vicarious liability imported by section 149 of the Penal Code could not be invoked. That the accused in this case constituted an unlawful assembly and committed rioting when they actually used criminal force against the complainants party admits of no doubt. The fact can also not be controverted that the death of Usman was the result of injuries inflicted in the course of that riot. The injuries of Usman were sufficient in the normal course to lead to death and whoever was responsible for them was clearly guilty of murder in the circumstances of this case In view of the observations made above, it cannot be said, however, that the murder of Usman took place to prosecution of the common object of the assembly within the meaning of the first part of section

149. The question really is whether the second part of section 149 covers the present case or not and whether it should be held that the members of the assembly knew that such an offence was likely to be committed in prosecution of their object. "Knowledge" like "intention" is a subject fact and it is obvious that such a fact cannot be proved by direct evidence. The knowledge imputable to an accused person can only be a gathered from the nature of the weapons carried the nature of the injuries caused and all the surrounding circumstances of the case including the object aimed at by the accused. In my humble judgment, in the circumstances of the present case the inference should be legitimate that when the accused persons started, armed with deadly weapons like spears, knowing that they would be used in case of resistance by the rival party, they should be credited with the knowledge that death might be a likely result. It could not be categorically asserted in my humble opinion, that in every case involving abduction of a female, a murder might be presumed to be within the contemplation of the unlawful assembly setting out to take possession of the person of the female. The true test would be provided by the nature of the weapons carried, the nature of the injuries caused, the object to be achieved and any other special circumstances that may be brought out in a case. My learned brother Sharif J. in one of the cases discussed above has laid down that where guns are carried by desperadoes, it may be fair to presume that murder was within the contemplation of the accused but he would not raise such a presumption where sharp pointed or sharp‑edged weapons are carried by the accused. That view is based on the argument of probability of a particular result ensuing, having regard to the weapons carried. The degree of probability, when fire arms are carried, of death being caused would, according to my learned brother, be higher than if spears were intended to be used. It is conceivable that in certain circumstances even the carrying of guns may not fairly lead to such an expectation ordinarily, however, I apprehend, that there should be little distinction between the contemplated results in cases where either guns or spears are intended to be used. The use of a spear more often than not leads to fatal results and unless there are special circumstances to show that in a particular case such a result was not within the contemplation of the accused, prima facie, the carrying of such dangerous weapons would in my humble judgment import knowledge on the part of the members of an unlawful assembly that death was likely to be caused in prosecution of the common object. In the present case, I do not think that any such special circumstances exist which would prevent the normal inference being drawn. I find myself, therefore, in respectful agreement with the view taken by my lord the Chief justice and hold that in respect of the murder of Usman, and offence under section 302 read with section 149 of the Penal Code has been brought home to the five accused named above. I also agree that these five respondents should further be convicted under section 326 of the Penal Code for the injuries caused to the P. Ws I concur in the sentences proposed by my lord the Chief justice for these two offences and agree that these sentences should run concurrently, in the case of each accused. MUHAMMAD MUNIRC. J., MUHAMMAD SHARIF AND S.A. RAHMAN, JJ.‑‑Saifullah, Umar Khan, Faiz Muhammad, Mohammad Azim and Hayatullah are convicted under section 302 of the Penal Code and sentenced to transportation for life each. They are also convicted under section 326 of the Penal Code and sentenced to seven years' rigorous imprisonment each on that charge. These sentences in the case of each of the respondents will run concurrently. The appeal against the other respondents is dismissed. A. H. Order accordingly.