P L D 1959 (W (PLP)

MASUD AHMAD, J.--‑This criminal appeal arises out of two occurrences, one of which took place in the house of one Nazir Ahmad in village Kot Leghari District Rahimvar Khan, on the evening of the 15th of February 1957, in which one person was killed and several others injured, and the, other took place shortly before that at a distance of three or four killas from that place, in which one person was killed and another was injured. The three appellants, Sarwar, Shadman and Bulanda, have been convicted separately for both the murders, under section 302, read with section 149 of the Pakistan Penal Code and, each of them, has been sentenced to death, for one of the murders, and to transportation foi life, for the other. They have also been convicted under sections 147, 148, 395, 397, 341, 449 and 307, read with section 149 of the Pakistan Penal Code and sentenced to various terms of imprisonment, and ordered to pay a fine of Rs. 50 each, on three of the counts, or to undergo six months' rigorous imprisonment, each, in default of payment of fine. Two other persons, Sarfraz and Isa, who were sent up for trial with these three, have been acquitted by the trial Court. The three convicts have filed a joint appeal, against their convictions and sentences. The learned Sessions Judge, who tried and convicted them, has also made a reference, under section 374 of the Criminal Procedure Code, for confirmation of the death sentences imposed on the appellants. This judgment will dispose of the appeal, as well as the reference made by the learned Sessions Judge.

2. In brief, the prosecution case was that Lutaf Ullah (P. W. 17), who is a resident of village Walhar, accompanied by Ghaus Bakhsh alias Ghasu, deceased, left his village, shortly before sunset, on the evening of the 15th of February 1957, for seeing Nazir Ahmad (P. W. 27), in Kot Leghari, from whom he intended to purchase some green fodder. On their way to that place, while walking along the railway line, they met the three appellants, Luqman deceased, Sarfraz and Isa, the two acquitted accused, and one Faiza, absconder, four of whom were armed with guns and the remaining three with hatchets. After four of these persons had crossed Ghasu and Lutaf Ullah, the latter enquired from the others as to why they had not greeted him. Upon this one of those persons, Luqman, who was afterwards shot dead at the house of Nazir Ahmad P. W., asked his companions to snatch the gun, which Lutaf Ullah was carrying in his hands. Lutaf Ullah was then over‑powered and the gun was snatched from his hands. His companion, Ghasu, intervened and grappled with one of these persons, but he was also over‑powered by them. One of these persons then asked his companions to release Ghasu, which they did. That person, who was, subsequently, identified as Isa, one of the acquitted accused, and who was carrying a gun in his hands, fired two shots at Ghasu, both of which hit him. Ghasu, on being so injured, fell down. Leaving Ghasu behind, these seven persons asked Lutaf Ullah P. W., to take them to the house of Nazir, in Kot Leghari, which was at a distance of three or four killas from that place. Lutaf Ullah had no option but to obey the order of these persons and, therefore, took them to the dera of Nazir Ahmad. At the dera they met five persons, including Ilam Din, Barkat Ali and Karim Bakhsh P. Ws., who were sitting inside the dera around a fire which was burning there. Leaving one of their companions behind, the other six, accompanied by Lutaf Ullah, then proceeded to the house of Nazir Ahmad. On approaching Nazir Ahmad's house, they first met Asghar Ali and then Nazir Ahmad P. W., who had come out of his house. The latter raised an alarm, on hearing which, Muhammad Abdullah, Muhammad Habib and Sana Ullah P. Ws., also came there. Nazir Ahmad graplled with one of the dacoits and Muhammad Abdullah, or Sana Ullah, (it is not clear which of them) snatched the rifle from the hands of one of the dacoits. A number of shots were then fired by them, one of the shots hitting both Nazir Ahmad and Luqman, with whom Nazir Ahmad was grappling. As a result of the shots fired by them, besides Nazir Ahmad, Muhammad Abdullah and Muhammad Habib were injured. In the early stages of the occurrence, Nazir Ahmad's companions took Lutaf Ullah to be one of the dacoits and caught hold of him, but on recognising him, released him. After having fired some more shots, the dacoits, thinking that they would not be able to achieve their object, left that place, leaving their injured companion, Luqman, behind. After their departure, the rifle, which had been snatched from the hands of one of the dacoits, was handed over to Lutaf Ullah, who fired one or two shots, with it, and then he left for the place where Ghasu was lying injured. Nazir Ahmad first went to his dera and after inquiring from Ilam Din and others about the occurrence also went towards the place where Ghasu was lying injured. There he found Lutaf Ullah present near Ghasu. The latter, who was seriously injured, was placed on a charpoy and taken towards the dera of Nazir Ahmad, but before they could reach that place, Ghasu expired. At the instance of Nazir Ahmad, Lutaf Ullah then left for the Kot Sabzal Police Station, which is at a distance of about seven mile. from that place, and, on reaching there at about 10 p.m., lodged a report of the occurrence.

3. The post‑mortem examination on the dead body of Ghasu was conducted by Dr. Qamaruz Zaman P. W. on the 17ti, of February 1957. The doctor found on the dead body a number of gunshot wounds. Internal examination of the dead body revealed four tears in the right lobe of the liver and one tear on the superior surface of the right kidney. A number of pellets were recovered from some of the wounds. In the opinion of this doctor, the deceased had died of haemorrhage and shock resulting from injury No. 1, which was in the middle of the abdomen and which was described by him as multiple wounds, eleven in number. The doctor also expressed the opinion that this injury was sufficient, in the ordinary course of nature, to cause death, and that 'the other injuries had also contributed to the shock and haemorrhage which resulted in his death.

4. The post‑mortem examination on the dead body of one of the dacoits was also conducted by the same doctor on the 17th of February 1957. External examination of the dead body revealed two lacerated wounds, one on the right side of the back, which was " x " and was considered to be the wound of entry, and the other, which was 2" x 1 " on the middle of the front part of the abdomen, and was considered to be the wound of exit. Two loops of small intestines were protruding out of the second wound. There was also found a wound in the abdominal wall, at the place of injury No.

2. Internal examination revealed free effusion of blood in the whole of the peritoneal cavity, between the abdominal wall and its viscera. There was also found a rupture in the lower border of the right lobe of the liver. In the opinion of this doctor, this man had died of haemorrhage and shock resulting from the two injuries, aggravated by the rupture of the liver and of the small intestines. He also expressed the opinion that these injuries had been caused by a firearm discharging bullets, and were sufficient to cause death, in the ordinary course of nature.

5. Muhammad Habib (P. W, 24), Nazir Ahmad (P. W. 27), Muhammad Abdullah (P. W. 23) and Lutaf Ullah (P. W. 17) were medically examined by the same doctor on the 16th of February 1957. The result of their examinations may be summarised as follows:-- Muhammad Habib (P. W. 24) He had a large number of gunshot wounds of various dimensions on the abdomen, the right side of the thigh, the front of the left thigh and the dorsal surface of the left forearm, which were described as six separate multiple wounds. These injuries were simple in nature and were of a duration of eighteen to twenty‑four hours. Nazir Ahmad (P. W. 27) He had a wound of entry on the dorsal surface of the right forearm and a wound of exit on the posterior surface of the right elbow joint. The wound of entry was 1" x " and was 2" deep, while the wound of exit was 2 " x 1'' and was also 2" deep. Both these injuries were considered to have been caused by a bullet discharged from some firearm. There was also an abrasion, 1" x ", on the upper surface of the left ear at its junction with the body. This injury was‑ also considered to have been caused by a bullet. X‑ray examination revealed that there was fracture of the olecranon of the ulna of the right side and a bullet had been embedded in the bone. This bullet was extracted about a week afterwards. Muhammad Abdullah (P. W. 23) He had a lacerated wound, 1" x ", on the lateral surface of the left arm, which was considered to be the wound of entry, and a lacerated wound, 5" x 3", on the posterior surface of the left arm, which was considered to be the wound of exit. He had also thirteen gunshot wounds, each measuring " x " on the lateral side of the left half of the back. Each of these wounds was deep. The first two injuries were, considered to have been caused by a firearm discharging bullets and the thirteen gunshot wounds by a shotgun. The first two injuries were grievous and the others were simple in nature. Lutaf Ullah (P. W. 17) He hail a contusion, 1" x ", in the lid of the left eye. There was also found haemorrhage in the left eye. Both these injuries were simple in nature and had been caused by a blunt weapon, within a period of eighteen to twenty‑four hours.

6. The appellants when examined in the trial Court, denied their guilt, but did not give any counter‑version of the occurrence. Bulanda appellant, however, admitted having made a confession before a Magistrate, but stated that it was not a voluntary one. He also added that he had been falsely implicated at the instance of one Fateh against whom his uncle, Tai Muhammad, had lodged a complaint of decoity. He further stated that the witnesses, who had identified him .in the parades, had remained with him at the police station before the parades were held. The remaining two appellants also stated that the witnesses had seen them before the identification parades were held. No evidence in defence was led by any of the appellants.

7. A number of identification parades were held on different dates, in the months of March and April 1957, for the purpose of getting the appellants and their companions identified by some of the witnesses. The result of these parades may be summarised as follows ;‑‑ Dates on which identification parades were held. Names of the Magistrates under whose supervision parades were held. Names of the accused who were identified. Names of witnesses who took part in the parades, Result whether identified or not. 1st March 1957. Mr. Muhammad Ata Ullah(P.W.3) Sarwar 1.Nazir Ahmad. First pointed out to another person, but afterwards pointed out to Sarwar. 2.Muhammad Abdullah Yes. 3.Sana Ullah Yes. 4.Barkat Ali No. 5.Ilam Din Yes. 2nd March 1957 Mr. Muhammad Ata Ullah (P.W.3) Sarwar 1.Lutf Ullah Yes. 2.Asghar Ali. Yes. 3.Karim Bakhsh No. 13th March 1957 Mr. Fazal Muhammad(P.W.5). Buland 1.Lutf Ullah Yes. 2.Nazir Ahmad Yes.

3. Muhammad Abdullah Yes. 4.Muhammad Habib Yes. 5.Barkat Ali Yes. 6.Asghar Ali Yes. 7.Sana Ullah Yes. 20th March 1957 Mr. Anwarul Hassan(P.W.29.) Buland 1.Barkat Ali Yes. 2.Muhammad Abdullah Yes. 3.Muhammad Habib Yes. 4.Asghar Ali Yes. 5.Sana Ullah Yes. 6.Nazir Ahmad Yes.

8. Buland appellant was produced before Mr. Abdul Hamid Biloch (P. W. 18), Magistrate 1st Class, Ghotki, on the 12th of March, 1957, in whose presence he made a confession of his guilt. This confession was duly recorded, after the Magistrate had gone through the necessary formalities. During the investigation of the case, the services of Nihal (P. W. 19), foot tracker, were requisitioned by the police and he was shown a certain number of footprints in the house of Nazir Ahmad P. W. Some of these prints were of shoes and others of bare feet. On the 14th of March 1957, Sarwar appellant was made to wear a pair of shoes, which had been recovered from the place of occurrence, and to take part in an identification parade. Nihal (P. W. 19) identified his shoe‑prints as being one of the prints which he had seen in the house of Nazir Ahmad.

9. Besides the doctor, who had conducted the post‑mortem examination and had medically examined the injured persons, and the Magistrates, under whose supervision the various identification parades were held, the principal witnesses examined at the trial were Lutaf Ullah (P. W. 17), llam Din (P. W. 20) Barkat Ali (P. W. 21), Karim Bakhsh (P. W. 2z), Muhammad Abdullah (P. W. 23), Muhammad Habib (P. W. 24), Asghar Ali (P. W. 25), Sana Ullah (P. W. 26) and Nazir Ahmad (P. W. 27). The evidence of all these witnesses was, substantially, in accordance with the prosecution story as mentioned above. The trial Court came to the conclusion that the case against the three appellants had been established beyond reasonable doubt but that the case against Isa and Sarfraz was doubtful, because there was reasonable doubt about these two accused having been "fully and un mistakably identified" by the witnesses. The Court also did not consider as true the confession of guilt made by Buland appellant, nor did it believe the evidence of the foot tracker. On these findings only the three appellants were found guilty of the offences complained of, while their two companions, Isa and Sarfraz, were acquitted.

10. The learned counsel for the appellants took us through the record of the case and referred to a number of discrepancies in the evidence of eyewitnesses and contended that much reliance could not be placed on testimony of this kind. The discrepancies pointed out by the learned counsel were, in our opinion, of a minor kind and did not affect the value of the evidence of these witnesses. In a case of this nature where witnesses are asked to recite details of an occurrence after a lapse of several months, discrepancies of this kind are bound to occur, because some of the witnesses may have observed only some of the facts while others may have observed some others. Taking the evidence of these witnesses as a whole, several facts, about which there cannot be the slightest doubt, stand out clearly. The first is that four of these witnesses were injured, three by gunshots and the fourth as a result of the scuffle which he had with the dacoits ; the second is that these witnesses did not know the dacoits before and could have had no motive for implicating them in a false case ; the third is that one of the dacoits lost his life in the occurrence, though his companions could not have intended to kill him; the fourth is that some of the dacoits were armed with guns and rifles which they used freely ; and the fifth is that these seven persons who had come to the house of Nazir Ahmad P. W. could not have had a lawful object in their minds. The only points which need decision by us are, firstly, whether the witnesses who claimed to have identified the appellants had the opportunity and time to see their faces at the time of the occurrence and were, therefore, in a position to identify them, and, secondly, what offences, if any, were committed by the appellants.

11. As to the first point, the learned counsel for the appellants contended that there is no clear proof on the record to show that the occurrence took place at a time when there was sufficient light of the day, which could have enabled these witnesses to identify the assailants, that even if there was enough daylight, these witnesses could have had but a glimpse of the dacoits and, there fore, could not have remembered their facial features to enable them to identify them in the parades and that the identification parades were not properly held and these witnesses had, probably, received some outside help with a view to enable them to identify the appellants. So far as the last of these contentions is concerned, we have carefully gone through the evidence of the Magistrate under whose supervision the various identification parades were held and are satisfied that there was nothing improper in the manner in which those parades were held and, therefore, the witnesses could not have received any outside help for the purpose of identifying the appellant. Moreover, as stated above, the appellants were not known to the witnesses before, they had no enmity with them and could have had no possible motive for implicating them in a' false case. As to the second contention, Lutaf Ullah remained with the dacoits for a considerable length of time and, so far as he is concerned, there can be no‑ doubt that he had both the opportunity and the time to see their facial features in daylight and, therefore, could not have made any mistake in their identification. Out of the remaining witnesses, three were sitting inside the room when the dacoits came to the dera of Nazir Ahmad and the other five met them outside the dera and remained near them throughout the occurrence, which would have lasted, at least, for fifteen or twenty minutes. It is, no doubt, true that only one of the dacoits entered the room in which three of these witnesses were sitting, but this does not necessarily mean that those who were sitting inside had no opportunity of seeing the facial features of all the seven dacoits. Out of the remaining five witnesses who met the dacoits in the house of Nazir Ahmad, three had received gunshot injuries and one of them, namely, Nazir Ahmad, was injured when he was grappling with one of the dacoits. All five of them had, therefore, ample opportunity of seeing their facial features and could not have forgotten their features within a short period of one month, or so, which elapsed‑between the date of the occurrence and the dates when the identification parades were held. As to the first contention, the evidence on the record is to the effect that the dacoits came to the dera of Nazir Ahmad at about maghrib time. No doubt, at that time, a lamp was burning in one of the rooms and a fire had been lit in another, but these facts do not necessarily indicate that the dacoits came to the dera long after the niaghrib time when there was complete darkness: We are satisfied that the occurrence took place shortly after sunset and, therefore, these witnesses having seen the appellants when there was still enough light of the day could have had no difficulty in remembering their facial features and in identifying them in the parades afterwards. We do not, therefore, find any force in any of these contentions and cannot reject the testimony of these witnesses on any such ground.

12. The learned counsel further contends that the guilt of the appellants could not be held to have been established merely on the strength of the identification by these witnesses. To support this contention he referred to a number of authorities, but we do not find it necessary to discuss those authorities, because it is a question of fact, in each particular case, whether the evidence produced by the prosecution can, or cannot, be considered to be sufficient to establish the guilt of the accused. If in this case we believe the evidence regarding identification of the appellants, that evidence, coupled with the other circumstances of the case would be sufficient to establish the guilt of the appellants for the offences complained of, though almost similar evidence may not have been considered to be sufficient for this purpose in some other case by another tribunal. In this case, we attach; considerable importance to the evidence of identification, because each one of the appellants was identified by, at least, six persons within a month or so of the occurrence and not one of these persons had any possible motive for implicating any of the appellants in a false case. They would not have, therefore, identified the appellants even if they had the least doubt in their minds about their identity. Believing the evidence of these witnesses to be true, we hold that the appellants did take part in the occurrence.

13. This brings us to the determination of the second question, namely, what offences, if any, were committed by the appellants. As is, apparent from the evidence on the record, which we see no reason to disbelieve, there were two distinct and separate occurrences. In the first occurrence Ghasu was killed and Lutaf Ullah was robbed of his gun and wrongfully detained. For these offences the trial Court has convicted all the appellants under sections 147, 148, 395, 341 and 302 read with sections 397 and 149 of the Pakistan Penal Code. The only eyewitness of this occurrence was Lutaf Ullah (P. W. 17), whose evidence was to the effect that though all the dacoits took part in robbing him of the gun and in catching hold of him, it was only Isa, one of the acquitted accused, who fired the fatal shots at Ghasu. The appellants had with them, at least, three more companions and in going together armed and marching in a body, they could have had no lawful object in view. These persons ‑did, therefore, form an unlawful assembly within the meaning of section 141 of the Pakistan Penal Code, Their convictions under sections 148, and 395, read with sections 149 and 397 of the Pakistan Penal Code were fully justified. With regard to their convictions under sections 341 and .147 of the Pakistan Penal Code, it was, in our opinion, unnecessary to convict them under section 341 of the Pakistan Penal Code, because it was minor offence compared with that under section 395 of the Pakistan Penal Code and as both were committed during the course of the same transaction, the offence under the first‑mentioned provision of law must be deemed to have been included in the second‑mentioned. As they were convicted under section 148 of the Pakistan Penal Code, no question arose for recording separate convictions under section 147 of the Pakistan venal Code. Their conviction under these provisions of law will have to be set aside. As to their convictions under section 302 read with section 149 of the Pakistan Penal Code, the matter is not so simple and needs careful examination.

14. The object of this unlawful assembly, according to the prosecution story, was to commit dacoity in the house of Nazir Ahmad (P. W. 27). On the way to this house, they happened to meet Lutaf Ullah (P. W. 17) and Ghasu deceased, just by chance, and if Lutaf Ullah had not addressed them, there may not have been any such occurrence. However, when he addressed these dacoits arid they noticed that he was carrying a gun, they first deprived him of that weapon and then overpowered him. The matter would have been left at that and the appellants and their companions might ' have departed, leaving Lutaf Ullah in a chastened mood, if Ghasu had not intervened and courted trouble by grappling with them. It was at that stage that one of them, namely, Isa, the acquitted accused, thought of dealing with Ghasu in a different way and asked his companions to let go their hold and, when they had done this, he fired shots at Ghasu which resulted in the latter's death after an hour or so. The question that requires decision is whether the appellants, who had not fired the fatal shots and who could not, in the circumstances of the case, have shared the intention of Isa, can be held vicariously liable, under section 149 of the Pakistan Penal Code, for the consequences of Isa's act. This provision of law reads as follows :‑ "

149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

15. The language of this section is unambiguous and presents no difficulty in understanding it. Under the first part of this section would fall offences committed by one of the members of an unlawful assembly, in prosecution of the common object of that assembly, and under the second part would fall offences committed by any member of such assembly, which the members of that assembly knew to be likely to be committed in prosecution of that object. This section cannot be construed to mean that for every act done by a member of an unlawful assembly, all other members of that assembly would be equally liable with him. If, for instance, one member of such an assembly commits an offence which is not in prosecution of the common object of that assembly, or an offence which the members of that assembly could not have known was‑ likely to be committed, or an offence which was not in any way, connected with the prosecution of the common object of that assembly, section 149 of the Pakistan Penal Code will have no application.

16. It is not difficult to visualise cases which fall under the first part of this section, nor can there be any difficulty in determining whether, on the facts of a particular case, it would be governed by the first part of the section or not, but it may not be always easy to determine whether any particular case falls under the second part of this section or not. , If, for example, five or more persons join together and after arming themselves commit criminal trespass on another man's land, with a view to take forcible possession of it, or if they commit trespass in a house with the object of robbing the inmates of their property, even if some of the members do not take an active part m the adventure all of them would be guilty of committing the offence of rioting or dacoity, as the case may be ; their case being covered by the first part of; section 149 of the Pakistan Penal Code. If, however, one of the members of such an assembly for the purpose of achieving the common object. of that assembly, while committ ing the offence of rioting or dacoity, by firing a gun with which he is armed, causes the death of a person it would be obvious that the second part of section 149 of the Pakistan‑Penal Code would apply and all members of that assembly would be guilty of the offence of murder, though only one of them had actually committed that offence. All members of that assembly would also be guilty for the offence of murder, committed by one of them, on their way back to the place from where they had gone to commit the dacoity, provided that the offence is committed in avoiding arrest, or in preventing recovery of the property looted by these persons, because, in that case also, it can be safely presumed that all members of that assembly knew that such an occurrence was likely to take place. The case, however, would be different where, while going to a certain place with the object of committing dacoity or criminal trespass, one of them commits an offence which has no relation to .the object of that unlawful assembly, as, for instance, where he just happens to meet an old enemy of his and shoots him down, or commits such other offence which has no relation to the object in view ; in that case section 149 of the Pakistan Penal Code will have no application and only the persons committing such an offence would be liable for it.

17. The principle of vicarious liability, laid down in section 149 of the Pakistan Penal Code, is an extension of the same principle laid down in section 34 of the Pakistan Penal Code. The only difference between the two is that in the former c case the guiding factor is the common object, while in the latter case it is the common intention. While dealing with this subject, their Lordships of the Privy Council observed as follows in Barendra Kumar Ghosh v. Emperor (I L R 52 Cal, 197) :‑ " Section 149 postulates an assembly of five or more persons having a common object, viz., one of those named in section 141 (Reg v. Sabed Ali) and then the doing of acts by members of it in prosecution of that object. There is a difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed maybe similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but section 149 cannot at any rate relegate section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all." In The Queen v. Sabid Ali and others ((1873) 20 S W R Cr. 5), cited with approval by their Lordships of the Privy Council in this case, it was held that section 149 of the Penal Code was not intended to subject a member of an unlawful assembly to punishment for every offence which was committed by one of its members during the time they were engaged in the prosecution of the common object, and that in order to bring a ,case within section 149, the act must be done with a view to accomplish the common object of the unlawful assembly or it must be proved that the offence, which was committed in prosecution of the common object of the unlawful assembly, was one which the accused knew would be likely to be committed in prosecution of the common object. In this case, a certain number of persons, who formed an unlawful assembly, attached another party which was in occupation of land, with a view to drive them off the land by force, and one of the members of the first party fired a gun and killed one of the persons of the second party, in consequence of a sudden and unexpected resistance which was offered by the second party. It was held, on consideration of the evidence, that the persons composing the first party, other than the person who fired the gun, could not be convicted of murder under section 149 of the Penal Code, because it could not be said that the firing of the gun was done in prosecution of the common object of that assembly.

18. A somewhat similar question arose in Dhian Singh and others v. Emperor (A I R 1915 Lah, 418), but on the facts of that case, section 149 of the Pakistan Penal Code was held applicable. What happened in this case was that a number of persons, who were armed with guns and other weapons, set out on turn turns from Ferozepore, with the object of looting the sub‑treasury at Moga. On the way they met a police party headed by a Sub‑Inspector, which was waiting on the roadside for the District Superintendent of Police. Becoming suspicious, one of the members of the police party went after the first party, on horseback, to bring them back. On coming before the Sub‑Inspector, they got down from the turn turns and when the Sub‑Inspector asked them to give their names and told them that they would be searched, several of them opened fire on him suddenly, with pistols, resul ting in his death almost instantaneously. It was held when the party set out together from Ferozepore, they must have known that the common intention was to commit dacoity that there was every likelihood of something occurring either on their way, or at the scene of the dacoity, to interfere with their highly criminal plans and that them deliberate intention was to use their arms whenever necessary either to effect the object in view, or to avoid the risk of capture at any stage in the adventure. In this reported case Madat Khan and another v. Empress (61 P R 1887 (Cr.)), in which, on facts, section 149 of the Penal Code was held as not applicable, was cited with approval. In Madat Khan's case their Lordships of the Punjab Chief Court, in an exhaustive judgment, dealt with all aspects of this provision of law and held that the expression "knew to be likely to be committed" occurring in the second part imports, at least, an expectation founded upon facts known to all the members of the assembly that an offence of the particular kind committed would be committed ; that is, something more than a speculation that such an offence might happen to be committed.

19. It will thus be seen that in such a case, the decision of the question as to whether it is covered by section 149 of the Pakistan Penal Code or no, depends upon its own facts and it is only after bearing in mind all the circumstances of the case that it can be held whether a member of such an assembly is liablel for the consequence,, of an act not committed by him. The question that nom requires decision is whether, on the proved facts o1' this case, section 149 of the Pakistan Penal Code could be held applicable, so far as the death of Ghasu was concerned. The appellants and their companions, as stated already, were met by Lutaf Ullah (P. W. 17) and Ghasu when they were on their way to commit dacoity in the house of Nazir Ahmad (P. W. 27) in Kot heehari The object of that assembly was not to kill anyone who met them on their way and, therefore, so far as Ghasu's murder was concerned, the first part of section 149 of the Pakistan Penal Code could had no application. The second part of that section could apply only if it could be shown that the appellants and their companions had any reasonable expectation that they were likely to meet someone on their way, who would question them, and then there would be an altercation resulting in grappling and snatching away of a gun. It is obvious that no such encounter with Lutaf Ullah and Ghasu could be expected by the appellants and their companions when the left their place of assembly for the object in view. Even when they met Lutaf Ullah and Ghasu, they could not have expected that one of them would grapple with them and that this would necessitate the firing of a shot at one of them; because if any such thing had been present in their minds, they would have fired shots at Ghasu and his com panion, as soon as they met them. It appears to us that it was only Isa, the acquitted accused, who suddenly made up his mind to end the life of Ghasu and for that decision he alone should have been held responsible. As lsa is not one of the appellant before us, we cannot, by applying the provisions of section 145 of the Pakistan Penal Code, hold the appellants liable under section 302 of the Pakistan Penal Code for causing the death of Ghasu. We are, however, of the opinion that the appellants cannot be considered to be altogether immune from liability, because their ease is covered by section 396 of the Pakistan Penal Code, which provision of law is worded as follows :‑ "

396. If any one of live or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or transportation for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." The principle underlying section 396 is also an extension of the principle of vicarious liability 'which has been laid down in sections 34 and 149 of the Pakistan Penal Code ; the limits of the liability in each of these three cases being different. As held in Ali v. The Crown (P L D 1954 Lah. 201), by a Division Bench of the Lahore High Court, of which one of us was a member, where (as in the present case) the murder committed is neither in furtherance of the common object of the dacoits, nor is it a result which was known to be likely, section 396 and not section 302, read with section 149, of the Pakistan Penal Code would be applicable. The learned counsel for the appellants, while accepting as correct the principle of law laid down in he above‑mentioned authority, and while also conceding. that the' fatal' shots might have been fired by a. com panion of the appellants, contended that as at the time when Ghasu was shot at, no dacoity was being committed and as the dacoity, if any, bad been committed before that time, section 396 of the Pakistan Penal Code can have no application to the present case. In advancing this contention, the learned counsel over looked the definition of "robbery" given in section 390, which is included in the definition of "dacoity" and thought that because Lutaf Ullah had been deprived of his gun when Ghasu was shot at, the dacoity had ended and the shooting of Ghasu had no con nection with the offence of dacoity. According to Lutaf Ullah, the gun said to have been snatched from the hands of Lutaf Ullah was still lying at that place and the offence of dacoity, with respect to that gun, was still in progress because the appellants and their companions had not yet retreated to the place of their assembly. Section 396 of the Pakistan Penal Code is, therefore, applicable to this case and the persons, who had not taken any part in the firing, but were conjointly committing dacoity with the persons who had fired the fatal shots, would be liable for the consequences of the act of that person. On this view of the case, we are of the opinion that so far as Ghasu's murder was concerned, the appellant should have been convicted under section 396 and not under section 302, read with section 149 of the Pakistan Penal Code. As to the sentences, we think ends of justibe would be met if the appellants are ordered to under go eight years' rigorous imprison ment, each, under this provision of law.

20. Coming now to the second occurrence which took place in the house of Nazir Ahmad, the appellants have been convicted under sections 449, 395, 307 and 302, read with sections 149 and 397, of the Pakistan Penal Code and sentenced to undergo various terms of imprisonment. They have also been ordered to pay a fine of Rs. 50, each, on two of these counts. On the findings of the trial Court, with which we agree, their convictions under section 395, read with section 397 of the Pakistan Penal Code were justified, though we are of opinion that the sentences of fines were not called for and a slight reduction in the sentences under section 395, read with section 397 of the Pakistan Penal Code is necessary. We do not, however, agree with the trial Court that the appellants had committed offences punishable under sections 307 and 302, read with section 149 of the Pakistan Penal Code. These convictions and sentences relate to the death of Luqman, one of the companions of the appellants, and to the attempted murder of Nazir Ahmad P. W. According to the medical evidence, a single shot hit Nazir Ahmad on his arm, when he was grappling with Luqman, and the same shot, most probably, injured and ultimately, killed the latter. If the dacoit who fired this shot had intended to cause Nazir Ahmad's death, he could have fired more shots at him, when he was at his mercy, and the slight resistance offered by the inmates, of the house had been subdued. The fact that only a single shot was fixed, indicates clearly that the appellants and. their companions did not intend to cause Nazir Ahmad's death an, probably, intended to disable him. So far as the injuries of Nazir Ahmad are concerned, the trial Court, in our opinion, should have recorded convictions under section 326, read with section 1.49 of the Pakistan Penal Code and not under section 307, read with section 147 of the Code. So far' as Luqman's death is concerned, we think that the case is note covered by section 301 of the Pakistan Penal Code, because the appellants neither intended to cause Nazir Ahmad's death, nor could they have known that their act was likely to cause his death. It is also apparent that Luqman was not hit intentionally, because" the appellants and their companions could pot have intended to kill one of their own men. We are of the view that this part of the case is covered by illustration (c) to section 299 of the Pakistan Penal Code. This illustration is in the following words:‑ "A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush ; A not knowing that lie was there. Here, although A was doing an unlawful act; he was not guilty of culp able homicide, as he did not intend to kill B or cause death by doing an act that he knew was likely to cause death." The only difference between this illustration, and the present case is that whoever tired the shot at Nazir Ahmad knew that he was grappling with Luqman, but as the requisite intention and knowledge were absent, the person who fired the fatal shot had not committed the offence of culpable homicide and, therefore, the appellants could not be‑held guilty under section 302, read with section 149 of the Pakistan Penal Code, for causing Luqman's death. In these circumstances, in our opinion, no conviction under section 302 of the Pakistan Penal Code should have been recorded so far as Luqman's death was concerned.

21. For reasons given above, this appeal is partly accepted and it is directed as under :‑ (1) The convictions and sentences under section 147 of the Pakistan Penal Code are set aside., (2) The convictions and sentences under section 148 of the Pakistan Penal Code are upheld. (3) The two convictions under section 395, read with section 397 of the Pakistan Penal Code are upheld, the sentences of fine imposed under these provisions of law are set aside and in the case of the second of these two convictions relating to the dacoity at the house of Nazir Ahmad, the sentences of ten years' rigorous imprisonment, on each of the appellants, are reduced to a sentence of eight years' rigorous imprisonment each, while the sentences of eight years' rigorous imprisonment, each, with respect to the dacoity upon Lutaf Ullah are upheld. (4) The convictions under section 302, read with section 149 of the Pakistan Penal Code for causing the death of Ghasu are converted into convictions under section 396 .of the Pakistan Penal Code and a sentence of eight years' rigorous imprisonment is awarded to each of the appellants. (5) The convictions and sentences under sections 341 and 449 of the Pakistan Penal Code are set aside. (6) The convictions under section 307, read with section 149 of the Pakistan Penal Code, with regard to injuries inflicted on Nazir Ahmad are converted into convictions under section 326, read with section 149 of the Pakistan Penal Code and each of the appellants is awarded a sentence of eight years' rigorous imprisonment under the second‑mentioned provisions of law. (7) The convictions arid sentences under section 302, read with section 149 of the Pakistan Penal Code with regard to the death of Luqman are set aside. All the sentences of imprisonment shall run concurrently. The death sentences imposed on the appellants are, consequently, not confirmed. A. H. Order accordingly.