P L D 1961 (W (PLP)

This judgment will dispose of Criminal Appeals Nos. 231, 232 and 256 of 1960. They are by Inayat, Rahmat and Muhammad Hussain respectively, who were tried jointly along with two others, namely, Lai and Barkat, by Mr. Sher Muhammad Khan Sial, Additional Sessions Judge, Gujrat, on charges under section 148 and sections 302, 323 and 325 read with section 149 of the Pakistan Penal Code. Barkat and Lal were, however, acquitted, and the three appellants were convicted under sections 323, 325 and 304 Part II read with section 34 of the Pakistan Penal Code. Muhammad Hussain was sentenced to seven years' rigorous imprisonment under section 304 Part II, two years' rigorous imprisonment under section 325 and one year's rigorous imprisonment under section 323; Rahmat was sentenced to two years under section 304 Part II, three years under section 325 and one year under section 323 ; and Inayat was awarded two years under section 304 Part II, two years under section 325 and one year under

323. All the sentences were ordered to run concurrently in each case.

2. Before setting out the case' for prosecution it may be well to describe the relationships between the accused persons inter se as well as the prosecution witnesses. The acquitted accused Lal and Barkat and the appellants Muhammad Hussain and Inayat are real brothers, while Rahmat appellant is their uncle. The prosecution witnesses, Muhammad Hussain, Muhammad Khan, Jahana, and Muhammad Din are brothers, while Ahmad Din is their first cousin. The deceased Roshan was the son of Muhammad Khan (P. W. 7) and nephew of the other prosecution witnesses. The parties are also related to each other, having. been descended from a common ancestor and having lands adjoining to each other.

3. The case for the prosecution was that on the 23rd of March 1959, at digarwela, Muhammad Hussain (P. W. 6) and his nephew Roshan deceased were grazing their buffaloes in their ranika field when a buffalo from the adjoining field of one Mst. Sardaran trespassed into the field of Muhammad Hussain P. W. The cattle in the other field were being attended by the appellant Muhammad Hussain. The witness Muhammad Hussain rebuked the appellant of his own name and also gave him a slap. Thereupon, the appellant Muhammad Hussain went to his dera, which is situate at a distance of 4 to 5 killas, and informed his brothers and uncle who armed themselves with dangs and rushed to the ranika field and attacked Muhammad Hussin P. W. Roshan deceased raised an ‑alarm which attracted Muhammad‑ Khan (P. W. 7), Ahmad Din (P. W. 8), Jahana (P. W. 9), and Muhammad ‑Din (P. W. 10). Muhammad Hussain appellant gave dang blows to Muhammad Hussain P. W. and to Roshan deceased. The other persons who came to the rescue of the deceased and Muhammad Hussain P. W. were also injured. The accused persons were also given a beating by some of the prosecution witnesses. Roshan became unconscious and was taken to the village where lie was kept for the night. Next morning he was being taken to the police station, Kuthala Sheikan, when he breathed his last. The first information report was made at about 8 a.m. on the 25th of March 1959 by P: W. Muhammad Hussain.

4. The .post‑mortem examination of the dead body of Roshan showed a swelling, 2 " x 2 1/2", on the top of the 'head, resulting in fissured fracture of both the parietal bones and a wound this injury to the brain which bad been caused by a blunt weapon and was sufficient in the ordinary course of nature to cause death.

5. Muhammad Hussain P. W. had four simple blunt weapon injuries on his person, Muhammad Khan P. W. had two simple weapon injuries and one previous injury on the forearm, Jahana P. W. had one contused wound over the scalp, Muhammad Din P. W. had three simple blunt weapon injuries and Ahmad Din P. W. had three simple injuries.

6. On the side of the accused persons, the appellant Muhammad Hussain had two contused wounds of a simple nature, Rahmat accused had two simple injuries on the left forearm and the left hand, and Inayat had one abrasion on the right upper arm. The acquitted accused Barkat and Lal were not found to have any injuries, and that was the reason for their acquittal.

7. All the accused persons pleaded not guilty and the appellants gave an alternative version to the effect that a buffalo of their aunt, Mst. Sardaran, had entered the field of Muhammad Hussain P. W., whereupon he abused her. On hearing the abuse the appellants Muhammad Hussain and Inayat rebuked P. W. Muhammad Hussain and also slapped him. Thereupon Muhammad Hussain P. W. went to his village, called his relatives, and all the five P. Ws. accompanied by Roshan deceased attacked the. appellants Muhammad Hussain, Inayat and Rahmat in their behak. The appellants retaliated in self‑defence and caused injuries to the prosecution witnesses, but they did not inflict any blow on Roshan deceased, who died due to drowning as he had fallen in the near‑by water‑course. No. defence evidence was produced in this case to substantiate this alternative version, although a cross case was started against the prosecution witnesses but that ended, in failure. 8, With the help of the learned counsel for the appellants, I have examined the entire evidence in this case and find myself in agreement with the conclusions reached by the learned Additional Sessions Judge. There are, no doubt, several dis crepancies between the statements made by‑ the witnesses at the trial and those made by them earlier either before the police or the committing Magistrate, but the discrepancies are of a petty nature and do not affect the substance of the prosecution case. The fight between the parties is admitted by the appellants themselves, and the only question for determi nation is whether indeed they were acting in the exercise of their right of private defence. In the first place, it is to be noticed that the injuries sustained by the appellants are of a very minor nature compared to those sustained by the comp lainant part. Although the number of the injuries is not always a true criterion for determining as to who is the aggressor, in the present case it is clear that if the appellants had been attacked while sitting peacefully at their behak the injuries sustained by them would have been far more numerous as well as serious in nature. In the second place, it is admitted by the appellants themselves, and proved by the prosecution witnesses, that it was the buffalo of the accused party which had trespassed into the field of Muhammad Hussain P. W. and for that reason it must have been Muhammad Hussain P. W. who abused the accused persons. The presence of Mst. Sardaran at the spot, as alleged by the appellants, is not proved on the record. It is, therefore, reasonable to assume that it must have been the appellant Muhammad Hussain who went to his dera to seek help to avenge the insult and the injury caused to him by P. W. Muhammad Hussain. In the third place, the assertions of the appellants that the deceased met his death by drowning are negatived by the medical evidence which shows that there was a head injury which proved fatal. There is no previous enmity between the parties and, as already stated, they are related to each other in various degrees. No reason has, therefore, been brought out on the record to show that any of the prosecution witnesses are falsely implicating them. A reading of the evidence makes it abundantly clear that there was no question of the appellants acting in self‑defence. I, therefore, agree with findings of the trial Judge that the appellants were the aggressors and they caused injuries to the prosecution witnesses as well as to the deceased in furtherance of their common intention.

9. Mr. Saadat Ullah Khan has then contended that there can be no question of common intention in respect of an offence under Part II of section 304 of the Pakistan Penal Code, as this section deals with the knowledge on the part of an assailant. He has referred me to Sahibzada and others v. Crown (P L D 1950 Pesh. 60) where the learned Judicial Commissioners observed that section 34 will in no case apply to an offence falling under section 304 Part II P. P. C. This question was, how ever, considered by a Division Bench of this Court in The Crown v. Muhammad Shafi and others (P L D 1954 Lah. 395), and it was observed as follows by Shabir Ahmad, J. "At first sight it appears doubtful if section 34 of the Pakistan Penal Code can have application to an offence under section 304, Part II, of the Pakistan Penal Code, because the former section is to apply when there is a common intention and the latter section applies when there is only knowledge that death would be the result. I am of the view, however, that there is nothing to prevent section 34 being applied to a case which falls under section 304 Part II . . . The act in the present case was the thrusting of the dang into the anus of the deceased as the evidence shown that this was done in furtherance of the common intention of Chand, Shafi and Ali Muhammad respondents, section 34 will make all of them liable for that act. All three being liable for the act, one has to see what offence that act constituted and the mere fact that it constituted an offence under section 304, Part II, of the Pakistan Penal Code cannot make section 34 of that Code inapplicable."

10. With respect, I am in agreement with these observa tions and hold that section 34 of the Pakistan Penal Code can and does apply to an offence punishable under section 304 C Part II, if the evidence shows that the act which caused the death was done in furtherance of the common intention of the accused persons. The common intention mentioned i section 34 of the Pakistan Penal Code in relatable to the act which caused the death. The further question whether the act itself was intended to cause death or not has reference only to determining the nature of the offence and not to the joint liability of the offenders. In the present case, the act of causing injuries to the deceased was an act carried out in furtherance of the common intention of the appellants who had come to avenge the insult and injury caused earlier to one o them and, therefore, all the three of them must be held liable for the offence which is committed as a result of the act in question. The three appellants have, therefore, been rightly convicted under section 304 Part II, read with section 34 of the Pakistan Penal Code.

11. Another contention put forward by the learned counsel for the appellants was that the evidence does not make it clear as to who caused the simple injuries to the witnesses and, therefore, no conviction should be recorded against them. It is clear that such a contention has no force, because once section 34 is applied, it is not necessary to determine precisely as to which of the assailants caused any particular injuries.

12. For all these reasons I am of the view that the three appellants have been rightly convicted under sections 304 Part 11, 323 and 325 of the Pakistan Penal Code read with section 34 of the same Code. With regard to the injury on the deceased, the major part is assigned to appellant Muhammad Hussain and he has, therefore, been awarded a heavier sentence under section 304 Part II than the other two appellants. Similarly, the grievous injury under section 325 on the person of Muhammad Khan P. W. is directly attributed to Rahmat appellant and for that reason he has been awarded a heavier sentence on that count. The sentences on all of the counts in respect of each of the appellants thus seem to be appropriate to the circumstances of the case, and no interference is called for. All the three appeals are therefore, dismissed. A. H. Appeals dismissed.