P L D 1961 (W (PLP)

ABDUL HAMID J.‑Tooh and Badal were tried by the Sessions Judge, Nawabshah on a charge under section 302, read with section 34, P. P. C. for the murder of one Mitho, and were con victed of that charge. Each of them was sentenced to death. We have before us a joint appeal by the two convicted accused, and also a reference for the confirmation of the death sentences. This judgment will decide the two matters pending before as:

2. The incident, out of which this murder arises, took place on the 31st of May 1960 at about 8 or 9 a.m. on a footpath passing through the lands in Deh 33 Nasrat, Nawabshah. About 5 months before this incident, a fight took place between Tooh on one side and Mitho on the other over cattle trespass. The allegations in this case are that on the day of the occurrence at about 8 or 9 a.m. Mitho was proceeding with a ram and a goat to his village. He was chased by the two accursed who were armed with Lathis. They inflicted Lathi blows on him, 5 of them were aimed at his head and 6 on the legs and thighs.

3. This incident was stated to have been witnessed by one Abdul Rahman, P. W. D.

3. He has a field at a distance of about 200 paces from the scene of offence, and has a Dera in that field. He was at the Dera at the time of this incident cleaning his wheat. He says that he heard the shouting of a challenge at a distance of about 20 . paces, and, on turning to it, found that one person was proceeding with a ram and a goat and he was followed by two shouting challenges at him. Fearing trouble, he went towards them, and when he covered about 50 paces, he found that the man who had a ram and a goat was Mitho and the persons following him were Tooh and Badal. Within his sight, Tooh, inflicted first a blow on the head of the deceased and thereafter both of them Inflicted Lathi injuries upon the deceased. He challenged them and thereafter they ran away.

4. He further stated that on his cries, Haji Jamal, P. W. 4, arrived at the scene, and he narrated this incident to him. He then went to Kauro, brother of the deceased and advised him of this incident.

5. Kauro, P. W. 2, a brother of Mitho deceased, stated that the deceased lived in a different village. On the night preceding the incident, he came to stay with him, and in the morning he left for his own village with a ram and a goat. Sometime after that he was informed by Abdul Rahman, P. W. 3, that his brother Mitho had been attacked by Tooh and Badal, and was lying at the scene of offence. He then proceeded to the scene of incident and found him lying injured. He was then in a state of semi consciousness, and when water was given to him, he regained senses, and on inquiries he said that he had been attacked by Tooh and Badal.

6. Kauro sent the body of Mitho to the village and he him self went to the Police Station and laid the First Information Report. In this report he stated that he was informed of this incident by Abdul Rahman and on arrival on the scene found the deceased lying injured. He said to him that he had been attacked by Tooh and Badal. In this report, Abdul Rahman was stated to have witnessed the crime and to have carried the information of it to him.

7. The deceased was then sent to the Hospital where his wounds were examined. He had the following 12 injuries on his person (1) Two contused wound son the frontal region 3 " x 1 " x bone deep and 2 "x " x bone deep each injury was 1 " apart. (2) Contused wound 2 " x " x bone deep on the right parietal region. (3) Contused wound 2 " x " x bone deep on the mid parietal region. (4) Contused wound 2 " x 1/3" x deep to the one on the occipi tal region right side. (5) Lacerated wound 1 " x "x " x on the right leg medially in the middle. (6) Lacerated wound 1" x "x " on the right leg medially lower ". (7) Contusion 2 " x " on the right thigh lower 1/8". (8) Contused wound 1 " x " x " on the left leg medially lower th. (9) Two contusions on, the back of the left thigh each measur ing 3 " x ". (10) An abrasion " x 1/6" on the nose.

8. He died in the Hospital on the morning of 2nd June and throughout his stay there, he remained unconscious. Death in the doctor's opinion, was due to the three injuries on the head, each of which was sufficient in the ordinary course of nature to cause death.

9. Haji Jamal, P. W. 4, who according to both Abdul Rahman and Kauro's statement came to the scene of offence, but whose name was not mentioned in the F. I. R., stated that he was ploughing his land at a short distance from the scene of offence and heard Abdul Rahman shouting for water. He took some water and found that Mitho was lying injured. In his presence, Mitho and Abdul Rahman both said that Tooh and Badal had caused injuries to him.

10. After recording the first information report on 31‑5‑1960 no action was taken by the Police because it was not then clear whether the offence committed was cognizable and demanded investigation by the Police. But on 2‑6‑1960 when a message from the Hospital was received about the death of Mitho, investigation was undertaken by Allahwarayo, Mounted Head Constable of Police, who proceeded to the scene of offence and found a clod with blood on the path where the incident was said to have taken place. He brought the two accused under arrest on 4‑6‑1960. and both of them, after their arrest, produced two Lathis from their house. Both the Lathis were stained with blood and on analysis, the Chemical Analyser found the blood on them to be human in origin.

11. Both the accused denied the commission of the offence, they also denied the production of Lathis by them, and expressed ignorance about the previous fight. When they were asked why the prosecution witnesses were deposing against them, they stated that there was enmity between them and the Brohis over a murder. The two accused .are the sons of the sister of Kauro's wife, and they have been unable to show why Kauro, who is related to them in this manner, is giving false evidence against them.

12. The learned Sessions Judge, relying on the evidence of Abdul Rahman, who witnessed the attack on the deceased by the two accused with his own eyes, on the evidence of Jamil and Kauro in whose presence Mitho is said to have charged the accused with this attack and on the evidence of production of blood stained Lathis by the two accused, found both of them guilty of the offence of murder, and convicted them of it.

13. The conviction has been assailed in this Court by the learned counsel for the accused/appellant on two grounds : Firstly it was stated that the evidence was insufficient for founding a conviction. Abdul Rahman it was said, may not have seen the incident at all. The dying declaration made before Kauro and Jamil was attacked on the ground that Mitho, after receiving the injuries, fell into a state of unconsciousness from which he did not recover at all, and was not in a position to make any declaration in their presence Jamil's evidence was further attack ed on the ground that his name was not mentioned in the F.I.R. We are also asked to disbelieve the story of production of the, bloodstained Lathis:

14. So far as the attack on the insufficiency of evidence is concerned, we are of the opinion that even if the dying declaration alleged to have been made by Mitho deceased in the presence of Kauro and Jamil be discarded; there is still ample evidence in the statement of Abdul Rahman to convict the accused. He has, according to the evidence of the Investigating Police Officer, land at a distance of about 2C 0 paces from the scene of occurrence. Wheat, in the process of cleaning, was found at his Dera. He had obviously reason to be present near the scene of offence, and there is nothing improbable in his statement that he heard the challenge, and turning towards it and expecting trouble arising from it, proceeded towards the accused and the deceased, and saw the attack with his own eyes. Nothing has been brought out in the evidence to show that he had any enmity with the accused of which he was giving false evidence He has not been found to be related in any way to the deceased. His evidence is entitled to credence, and that evidence alone is sufficient to sustain conviction.

15. But we have in addition to the direct ocular evidence of Abdul Rahman, to other pieces of evidence by which the accused can be connected with this offence : Two Lathis, both stained with human blood, were produced by the accused before the Inves tigation Officer in the presence of Mashir Mahboob Shah, P. W.

5. No bias has been imputed to this witness.

16. The accused, who are brothers, have also a motive for the commission of this crime, because five months before this incident, there was a fight between accused Tooh and Mitho deceased in which blows were exchanged between them and injuries were sustained by each combatant. The attack which resulted in the death of Mitho was in revenge for that fight.

17. Kauro, a real brother of the deceased, is the husband o the maternal aunt of the two accused. If there had been no truth in the accusation, he would not have ventured to lodge false prosecution against his wife's nephews.

18. In so far as the evidence on the record is concerned it is in our view sufficient to warrant a conclusion that the two accused are the authors of the injuries of which Mitho died.

19. The conviction of the two accused on charges under section 302 read with section 34, P. P. C. was also assailed on two legal grounds. The application of section 34, P P. C. was assailed on the ground that no evidence of previous concentration between the two accused to kill that deceased has been brought on the record, and in the absence of any evidence indicating preconcerta tion, section 34 cannot be invoked.

20. It was next contended that the offence committed was not one falling under section. 302, P. P. C. as from the weapons used for the commission of the offence, from the nature of the enmity, which is stated to have prompted it, and from the manner in which it was committed, a clear intention to kill the deceased cannot be inferred. The two accused in attacking the deceased, intended to give him a beating only, and it is unfortunate that 3 blows fell on the head and resulted in his death.

21. As regards the first legal attack, it is true that for the application of section 34 evidence of pre-consulation on the part of the persons concerned in the commission of the offence is neces sary, but it is now well settled that direct evidence of pre-consultation is not always necessary. Common intention to commit an office may be inferred from the circumstances of the case. Such intention can also develop immediately before the commis sion of the offence, or even during its commission as well.

22. We have in this case evidence that the two accused, who were brothers, went after the deceased with Lathis in their hands in order to avenge a previous fight. Both of them opened the attack upon him. There are five wounds on his head and seven on the other parts of the body. Three of the wounds on the head were fatal. If one of the inflictors of the blows sees that his partner inflicting blows on the head of the victim and he himself goes on inflicting blows on other parts of the body knowing fully well that the blows on the head are likely to cause death, he shares the intention of his accomplice, even if he himself does not inflict any blow on the head. If the consequences of the blows on the head are known to be death, he can m law be held to have also intended those consequences. Out of the five injuries on the head, two are on the right side, and two on the front and one on the middle. Out of the six injuries on the thighs and legs, three are on the right. side and three are on the left side. It shows that the assailants were standing to the right and the left of the deceas ed, and inflicted on him blows from head to leg. But even if one of them be held to have inflicted injuries on the head, the other, who inflicted injuries on the other parts of the body, clearly c shared the intention of his partner, who was inflicting injure on the head, if he went on inflicting injuries on the other parts of the body. Each of them began to share the intention of the other, if not earlier, at least during the commission of the offence. For these reasons, section 34, P. P. C. can be applied to this case.

23. In support of the next contention that the murder of the deceased was not at all intended, and offence therefore cannot fall under section 302, P. P. C. an attempt was made to show that the circumstances of the case are such that the offence appears to be one under section 304, P. P. C. The injuries were on the head and were caused with light Lathis. The accused could not know that such injuries would in all probability cause injuries which would lead to death. The degree of probability of death ensuing was small and for this reason the conduct of the accused fell within the ambit of Parts 2 and 3 of section 299, and not within the ambit of any of the conditions mentioned in parts firstly to fourthly of section 300, P. P. C. It was only culpable homicide not amounting to murder because the degree of probability or knowledge that death would ensue from the injuries inflicted was not of that strength, which is required for bringing the offence within parts firstly to fourthly of section 300, P. P. C.

24. It is true that the boundaries between section 299, P. P. C, and parts firstly to fourthly of section 300 p. P. C. are very thin and are sometime difficult to discern. The difference lies in the degree of probability of the death ensuing from the acts of the offender. If the probabilities of death flowing from the blows are greater, the offence would fall under section i00, P. P. C., and in these are small it will fall under section 299, P. P. C. But we are not faced with such difficulties in this case. Five Lathi blows have been aimed at the head, three with such force, that they frac tured the skull and resulted in death. In the doctor's opinion each of these three injuries was sufficient in the ordinary course of nature to cause death. People in this part of the country use Lathis in the commission of murders and aim blows on the head, with the knowledge that Lathi blows on the head result in death. In inflicting five Lathi blows on the head with great force, the accused knew fully well that death would be the consequence. I The degree of probability required by part thirdly of section 300 P. P. C. is present in this case. The offence, therefore, fall's under section 300, P. f. C. and is punishable under Section 302 P. P. C.

25. For the reasons given above, we maintain` the conviction of the two accused under section 302 read with section 34, P. P. C. But in view of the other circumstances of the case, death sentences in our opinion are not called for. While upholding the conviction of both the accused under section 302 read with section 34, P. P. C., we reduce the sentence of death to transportation for life.

26. With this modification, the appeals are dismissed. K. B. A. Sentence reduced.