P L D 1954 Lahore 78 (PLP)

SHABIR AHMAD, J.‑The joint trial of Nawab. Fateh Muhammad, Hakim Ali, Subhan and Shah Muhammad, under section 148, 302/149 and 307/149 of the Pakistan Penal Code, resulted in Nawab being sentenced to death under section 302, Subhan to eight months, rigorous imprisonment under sec tion 324 Shah Muhammad to Rs. 30 fine under section 352, and Fateh Muhammad and Hakim Ali to three months' rigorous imprisonment under section 323 of the Pakistan Penal Code. Mr. M, A. Latif, Sessions Judge, Lyallpur, who passed the above sentences has referred the case to this Court under sec tion 374 of the Code of Criminal Procedure for the confirma tion of the sentence of death imposed on Nawab. There is also an appeal to this Court by Nawab, Fateh Muhammad, Hakim Ali and Subhan, but Shah Muhammad has not cared to appeal. The reference for confirmation and the appeal will be disposed of by this order. The case of the prosecution was that having formed them selves into an unlawful assembly, the four appellants and Shah Muhammad attacked Abdul Shakur deceased and, in the course of the transaction which resulted fatally, injuries were caused to Mst. Saddan, Mst. Maryam and Abdul Karim who tried to intervene. The motive was stated to be that some hours earlier the deceased had an altercation with Nawab appellant who was found sitting in the house occupied by Mst. Jannat, a widowed aunt of the deceased. First information report about the incident, which took. place at about sunset time, in Chak No 653/4‑G.B., in the District of Lyallpur, was given at Police Station Lundianwala, which is at a distance of about four miles from the scene of the occurrence, the same day at about 9‑30 p.m. by Abdul Aziz, the father of Abdul Shakur. The report mentioned the alterca tion between the deceased and Nawab appellant in the morning and the fatal assault on the deceased as well as the receipt of injuries by three of the persons who tried to rescue the deceased. It was also stated in the report that the incident bad been witnessed besides the informant himself, by Abdul Sattar, Mst. Saddan, Mst. Maryam, Abdul Karim, Mst. Fatima and Sher Bahadur. The eyewitnesses' account of the occurrence was given at the trial by Abdul Aziz (P. W. 3), Abdul Sattar (P. W. 4), Mst. Saddan (P. W. 5), Mst. Maryam (P. W. 6), Abdul Karim P. W. 7) and Sher Bahadur (P. W. 9) Mst. Fatima (P. W. 8) who was mentioned as an eyewitness in the first information report, though not examined‑in‑chief by the prosecution was tendered for cross‑examination but that opportunity was not availed of by the defence. With regard to the altercation which was the motive for the attack on Abdul Shakur, evidence was given by Abdul Sattar (P. W. 4) and Siddique (P. W. 12). The witnesses who gave relevant evid ence are related to the deceased ; Abdul Sattar (P. W. 4) being a collateral of Abdul Aziz (P. W. 3). Mst. Saddan a daughter of P. W. 3, Mst. Maryam a sister‑in‑law of P. W. 3, Abdul Karim a brother of P. W. 3, Sher Bahadur a son‑in‑law of a brother of P. W. 3, and Siddique a brother of P. W.

3. Abdul Sattar (P. W. 4) and Siddique (P. W.12) stated that it was rotiwela in the morning on the day of the occurrence when they witnessed a quarrel between the deceased Nawab and appellant which had reasulted from the deceased finding Nawab sitting with Mst. Jannat, his (deceased's) widowed aunt. The deceased had objected to Nawab paying visits to his aunt but before the matter could attain a serious aspect the witnesses intervened. Abdul Sattar (P. W. 4) stated that Nawab appellant left the house of Mst. Jannat threatening Abdul Shakur that he would deal with him. Siddique (P. W. 12), however, made no mention of the threat. The learned counsel for the appellants urged that the morning incident had not occurred at all and had been introduced merely to make it appear that the attack on the deceased was premeditated. This, however, I cannot accept, not only because I see no reason to doubt the two witnesses who deposed about it, but also because the morning incident had been fully detailed in the first information report. I am not prepared to believe that in the short interval that had elapsed between the fatal assault on Abdul Shakur and the first information report, the relatives of the deceased had invented the morning incident in order to make it appear that the attack on the deceased was premeditated. I would, therefore, hold there had been an altercation between the deceased and Nawab appellant on the morning of the day of the incident. Abdul Aziz (P. W. 3) stated that when he and the deceased returned to his house at about sunset time on the day of the incident, he asked the deceased to prepare huqqa for him. The deceased said that the huqqa was lying at the house of Siddique (P. W. 12). The witness asked the deceased to go and fetch the huqqa at which the deceased left for the house of his uncle but returned immediately after followed by the four appellants and Shah Muhammad, of whom Nawab and Subhan appellants were armed with spears while the others carried dangs. As he entered his courtyard, Abdul Shakur deceased folded his hands entreating his assailants not to kill him at which Nawab appellant thrust his spear in the abdomen of the deceased. The inmates of the house including Mst. Sad dan, Mst. Maryam and Abdul Karim tried to intervene and were given blows by Subhan, Hakim Ali and Fateh Muhammad appellants. Shah Muhammad aimed two dang blows at Mst. Fatima but both of them missed their target and hit a wall. The statement of Abdul Aziz (P. W. 3) receives corroboration in all material details from the depositions of Abdul Sattar (P. W. 4), Mst. Saddan (P. W. 5), Mst. Maryam (P. W. 6) and Abdul Karim (P. VAT. 7). Of these witnesses, Mst. Saddan, Mst. Maryam and Abdul Karim bore injuries on their persons and apart from the fact that they are natural witnesses the injuries are a guarantee of their having witnessed the incident which resulted in the death of Abdul Shakur deceased. Sher Bahadur (P. W. 9) was sitting in his father‑in‑law's house when he heard an alarm anti oil coming out saw Abdul Shakur deceased being pursued by the four appellants and Shall Muhammad. The witness followed the assailants and saw that on entering his own house Abdul Shakur entreated them whereafter they caused injuries to Abdul Shakur. Mst. Saddan, Mst. Maryam and Abdul Karim. When questioned to explain the case against them, the appellants denied their guilt attributing their implication to enmity with the prosecution witnesses without specifying what that enmity was. At the trial Nawab appellant stated further that the complainant party wanted Mst. Jannat, widow of Abdul Majid, to marry Muhammad Yusaf, a cousin of her deceased husband, but she would not agree to this marriage as she wanted to marry the appellant. He added that this attitude of Mst. Jannat had antagonised the complainant party and for that reason he had been falsely implicated though on the day of the occurrence he was not even present in the village. No evidence was produced in defence. There is nothing on the record to make one doubt the prosecution evidence which has been detailed above. As Abdul Shakur was given the blow that killed him in his own house, it is hardly open to question that his relatives, who must in the ordinary course of things be in the house, had seen the incident. It is inconceivable that while somebody else had killed his son, Abdul Aziz (P. W. 3) would falsely name Nawab appellant as the author of the fatal blow. The three injured prosecution witnesses must have seen their assailants and as no reasonable ground exists why those witnesses should substitute Fateh Muhammad, Hakim Ali and Subhan appellants for the real assailants, I have no hesitation in accepting the prosecution evidence that it were these appellants who caused injuries to the injured P. Ws. Learned counsel for the appellants urged that even if it be believed that the appellants were the persons responsible for causing injuries to the other party, yet it could not be said with certainty that the incident took place in the manner deposed to by the eyewitnesses produced by the prose cution. I have held already that the evidence about the morning incident was not open to doubt, and as that incident clearly furnished a motive to Nawab appellant to attack the deceased, and the other appellants and Shah 'Muhammad are related to Nawab appellant, I can see nothing improbable in the incident having occurred in the manner suggested by the prosecution. Learned counsel for the appellants could point to no evidence or circumstance in support of his contention that the incident did not occur in the manner suggested by the prosecution, and as the evidence to support the incident is, in my opinion, entirely reliable, I hold that it had been proved beyond all reasonable doubt that the incident, which resulted in the death of Abdul mentioned by the eye‑witnesses produced by the prosecution. One of the arguments of the learned counsel for the appellants was that the act of Nawab appellant in causing only one injury to Abdul Shakur deceased, which resulted in the death of the victim, could not bring the case within the ambit of murder. No doubt only one blow was given but the‑blow was on a very vital part of the body of the victim. Dr. Hakim Din, Medical Superintendent, Civil Hospital, Lyallpur, who performed the post‑mortem examination found an incised wound, 1 " x ", in front of the right side of the abdomen. The wound had penetrated into the abdomen and had resulted in the transverse colon protruding out. A person who causes an injury of this kind can safely be inferred to have intended to cause the death of the victim because every one knows that abdomen is a very vulnerable part of the human body. But even if, for any reason, I were to hold that Nawab appellant had not the intention to kill the victim, I cannot see how the case can be taken out of the purview of section 302, P. P. C. Even if the act was not intended to cause death, it was most certainly such as was imminently dangerous and was likely, in all probability, to cause death, and as the injury was given without any justification, the case would clearly fall under clause 4 of section 300, P. P. C., just as it will fall under the Third Clause of that section. I would, therefore, maintain the conviction of Nawab appellant for the offence of murder proved to have been committed by him. With regard to the sentence of Nawab Appellant, learned counsel for the appellants urged that the death sentence was not called for because Mst. Jannat being a widow, her connec tions with men, matrimonial or otherwise, could not be con trolled by the relatives of her dead husband and, therefore, Abdul Shakur deceased had no business to interfere when Nawab was sitting with the widow. Had the assault been committed when Abdul Shakur objected to the deceased sitting with his widowed aunt, there would have been some ground for not exacting the extreme penalty from Nawab appellant, but the facts brought on the record prove a premedi tated attack on the decreased. The attack was dastardly because it was made by a number of armed men on an unarmed man, who after he had been chased for some distance was done to death in spite of his entreaties to be spared. I would, there fore, dismiss the appeal of Nawab appellant and confirm the sentence of death passed on him by the learned trial judge. I will now address myself to the cases of the other three appellants. The learned trial Judge has held that each assailant was liable for his own acts, as, to use his words "there was no direct evidence of pre‑concert of conspiracy between the five assailants''. 1n my view this was not the correct approach to the case and as it has been noticed in the last few days that section 149, P. P. C., has not been applied by subor dinate Courts where it was clearly applicable, it appears necessary to consider the provisions of that section in some detail. The two sections of the Pakistan Penal Code making a personal vicariously liable for the acts of his companions, which come before Courts more frequently than others, are sections 34 and

149. The former of these makes each one of the culprits liable for the act done if it is established that the act was done in furtherance of the common intention of all of them. That section applies to cases in which whatever the number of the culprits, be they less than five, five or more than five, the prosecution can establish that the criminal act was done in furtherance of the common intention of all in which case each one of them is punishable as if he had done the act himself. Section 149, on the other hand, does not deal with a common intention but applies to an offence committed by any member of an unlawful assembly (an assembly of five or more persons, whose common object is one of those mentioned in section 141, P. P. C.) in furtherance of the common object of the assembly. Section 149 will apply even if the common in of the culprits was not to commit the offence com mitted if that offence was committed in order to gain the common object of the unlawful assembly. Sections 34 and 149 have some common features, but one difference between them) is that while section 34 may apply to a case where the culprits are five, more than five or less than five, section 149 can apply only to cases in which the culprits are five or more. Another difference is that while section 34 will apply where the common intention is to do an act which was done, the latter section will apply even if there was no common intention to do the act but it was done in furtherance of the common object of the unlaw ful assembly. Section 34 applies to cases in which more persons than one intend to do criminal act and that act is done, while section 149 applies to cases where five or more persons intend to achieve an object but may not have the intention of doing the particular criminal act which was done by one or more of them for the purpose of achieving the common object. Direct evidence about what the common intention or the common object of persons jointly engaging in a crime can be available only in those cases of by no means common occur rence in which one of them is produced as a witness or a witness has heard them discuss their criminal designs, and, therefore, the common intention as well as the common object is generally to be inferred from the circumstances of a case. The circumstances in the present case were that five persons two of whom carried spears and the others dangs, made a concerted attack on the deceased and not only did they not content themselves with making him run away out of fear but followed him to his house where one of them thrust a spear in his abdomen, the other one carrying a spear caused injuries to one of the inmates of the house and those armed with dangs injured two other inmates of the house. That Shah Muhammad also took part in the attack is proved beyond all reasonable doubt from the evidence led by the prosecution, and his omission to appeal against his conviction under section 352, P. P. C. is not without significance. The circumstances being these, the finding of the learned trial judge, that each of the assailants was liable for his own acts and could not be held vicariously liable for the acts of his companions, is, to my mind, entirely unjustified. It may perhaps be arguable that the common object of the unlawful assembly was not to cause the death of Abdul Shakur but that would not conclude the matter. Two kinds of cases can arise in which the application of section 149 is to be considered. One is the case of an offence committed in furtherance of the common object of the unlawful assembly, in which case each member of the unlawful assembly is guilty of the offence committed by anyone of them. The other is the case where the offence committed may not have been done in prosecution of the common object of the unlawful assembly. In this latter case the companions of the person who committed the offence may or may not be liable for the offence : If the offence committed was not such as the members of the assembly other than those who committed it knew to be likely to be committed in the prosecution of their common object, the person who does that act would be individually liable for the act. The illustration of this type of case is where one of the members of the unlawful assembly unknown to others carries a pistol in his pocket and kills some one with it when the common object of the unlawful assembly did not extend beyond causing grievous hurt. In such a case the act of the person who uses‑the pistol could not be considered to be known to be likely by his confederates, and section 149, P. P. C. can have no application. If, however, the offence committed is such as the companions of the person who commits it knew to be the likely result of their escapade, section 149, P. P. C. will apply and make the persons other than the one who committed the offence vicariously liable for it. In the present case two spears were carried and Abdul Shakur deceased was pursued to his own house where one of the spears was thrust in his abdomen. When spears are carried by some members of an unlawful assembly whose object is to use force, can it be reasonaly inferred that any of them did not know that if not death at least grievous hurt would be the outcome.? In such circumstances inference that all members of the unlawful assembly had knowledge of the likelihood of death being the result will by no means be unreasonable, but if the view most favourable to the accused were taken there can be no escape from the finding that grievous hurt at least was known to be the likely result provided that that kind of hurt has been caused or some more serious offence has been com mitted. In this case, Nawab by thrusting his spear in the abdomen of Abdul Shakur deceased, committed an offence of murder and I can find nothing in the evidence to justify the inference that the companions of Nawab did not know it to be likely that if nothing wrose at least grievous hurt with a sharp -edged weapon will result. In my view, therefore, even on the most favourable construction of the evidence and the law applicable to the proved facts, the companions of Nawab were, in spite of the fact that they themselves caused no grievous injury, punishable under section 326/149, P. P. C. This raises the question if the appellants and Shah Muhammad can be convicted of the offence which they are amply proved to have committed. Shah Muhammad has not appealed and there is neither an appeal by the Provincial Government under section 417, a revision petition by a private person to have Shah Muhammad convicted of a more serious offence than section 352, P. P. C. or for the enhancement of his sentence nor has a notice been issued to him suo moto by this Court in the exercise of its powers of revision to show cause why his sentence should not 'be enhanced. In his case, there fore, his conviction cannot be altered. In the case of the other three, however no difficulty with regard to the alteration of their convictions to section 326/149, P. P. C, arises because section 423 of the Code of Criminal Procedure empowers an appellate Court to alter the finding. I, therefore, alter the conviction of Fateh Muhammad, Hakim Ali and Subhan to one under section 326/149, P. P. C. It is obvious that the sentence imposed on these three appellants and Shah Muhammad are not commensurate with their offence, but here a difficulty intervenes. An appellate Court cannot, because of section 423 of the Code of Criminal Procedure, enhance the sentence but as this Court possesses the powers of revision and a Court of Revision, can enhance the sentence, the sentence could have been enhanced subject, however, to the condition that the accused persons have been given an opportunity of being heard either personally or by pleader in their defence. No notice has issued to the four companions of Nawab to show cause why their sentences should not be enhanced and if a notice were to issue now, the decision of the case would be consider ably delayed. The result, therefore, is that I would dismiss the appeal of Nawab and confirm the sentence of death imposed on him, but, while altering the conviction of Fateh Muhammad, Hakim Ali and Subhan to one under section 326/149, P. P. C., I would maintain the sentences imposed on them for the offences of which they were convicted by the learned trial Judge. Fateh Muhammad, Hakim Ali and Subhan who are on bail under orders of this Court will surrender to their bail bonds to serve the unexpired portion of their sentences. S. A. RAHMAN, J.‑I agree. Appeal dismissed.