P L D 1971 Lahore 959 (PLP)

"Section 34.‑When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." "Section 107.‑A person abets the doing of a thing who‑-- Firstly‑Instigates any person to do that thing: Secondly‑Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or Thirdly‑Intentionally aids by any act or illegal omission, the doing of that thing. Explanation 1.‑A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.‑Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." "Section 114.‑Whenever any person, who if absent would be liable, to be punished as an abetter, is present when the act or offence for which he would be punishable in conse quence of the abetment is committed, he shall be deemed to have committed such act or offence." As would be evident from the plain reading of the three sections they are quite distinct and separate in their intent and scope. Section 34 enunciates the principle of constructive liability in regard to an act committed by several persons in furtherance of their common intention. Section 107 defines the offence of abetment, whose mode of punishment is elaborated in sections 109, 117 to 120, P. P. C. The basic differences between the two provisions is highlighted by Explanations 2 and 3 to section 108 which define an abettor. They read as follows: Explanation

2. To constitute the offence of abetment it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused." Explanation

3. It is not necessary that the person abetted should be capable of law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge." From the above two provisions it becomes abundantly clear that the actual commission of the abetted act is not a sine qua non of the offence of abetment nor so is the guilty intention or knowledge of the person abetted or its community with the abettor. It was observed by Sajjad Ahmad, now Judge of the Supreme Court, in Ghuncha Gul and another v. The State (A I R 1925 P C 1), as follows: "The distinction between abetment as defined in section 107, P. P. C. and constructive liability under section 34, P. P. C. lies in this, that under the former an offender can be convicted for the offence which he actually abets regardless of the ultimate result achieved whereas under section 34 all the persons accused of the offence are in the eyes of law united in their intention in carrying out of the actual act committed in furtherance of their common intention." We are in respectful agreement with the above observation of his Lordship. The provision contained in section 114, P. P. C. is rather evidentiary and not punitory as would be clear from its plan reading. The following observation of their Lordships of the Privy Council in Barendra Kumar Ghosh v. Emperor (P L D 1959 Lah. 950) may be advantageously reproduced in this regard: "As to section 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved and then the presence of the accused at the commission of that crime is proved in addition ; Abhi Misser v. Lachmi Narain ( (19U0) 27 Cal. 566). Abetment does not itself involve the actual commission of the crime abetted. It is a crime apart. Section 114, deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory. Because participation de facto (as this case shows) may some times be obscure in detail, it is established by the presumption juris at de jura that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by section 114 brings the case within the ambit of section 34." Before the case of Barendra Kumar Ghosh went to the Privy Council, it was earlier decided by a Full Bench of the Calcutta High Court reported as King‑Emperor v. Barendra Kumar Ghose (A I R 1924 Cal, 257). Their Lordships of the Full Bench had considered as application for review of a criminal case on the certificate of the Advocate‑General under clause 26 of the Letters Patent on the question of an alleged misdirection to the jury. The only portion in the Full Bench judgment relevant to the instant case is the following observation by Richardson, J. "Section 114 would appear to serve two purposes. Firstly it marks the fact that where it can be proved that the accused, if absent, would be liable as an abettor, his mere presence when the offence is committed is without more sufficient proof of common intention, to make him an accessory at the fact or principal. Secondly, it marks the fact that in those circumstances the accused cannot be punished twice, once for the abetment and once for being present as an accessory at the fact. The section resembles section 34 in this, that it rather regulates procedure and punishment than creates an offence, of Gould & Co. v. Hougton (1921) 1 K B 509 and see Collett's Comments on the Indian Penal Code, published, in a collected form in 1889)." Section 114, therefore, is not vide enough to include all accessories at the fact. It would not apply for instance where one man is assaulted by several others and the assault is unpremeditated. It only applies where the accused, if absent, would be liable as an abettor, and there are many cases in which no such liability can be proved.

12. The upshot of the discussion, therefore, is that once an abettor is personally found to be present at the spot then he is liable as principal but would be punished only once and to that extent there remains little difference between an abettor personally present as envisaged by section 114, P. P. C. and a co‑accused sharing community of intention as contemplated by section 34, P. P. C. In the circumstances, therefore, even if learned Sessions Judge had deemed it proper to invoke sec tion 114 in the case of Muhammad Hussain appellant he should have been liable to the same quantum of punishment as his co- accused.

13. In order to repel the application of section 34, P. P. C. learned counsel for the appellants drew our attention to Mahbub Shah v. Emperor (A I R 1945 P C 118). Their Lordships of the Privy Council took the view that common intention within the meaning of section 34 implied a pre‑arranged plan and that the conviction of an accused on the application of section 34 it should be proved that the criminal act was done in concert pursuant to a pre arranged plan. Their Lordships warned that care should be taken not to confuse "same or similar intention" with "common intention". It was observed "the inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case". It hardly needs an argument to say that in that case their Lordships of the Privy Council had not exhaustively envisaged all circumstances justifying the application of section 34, P. P. C. including those wherein no direct evidence of pre-concert was available. It is well established that) common intention though not shared at an earlier stage could still be formed at the spur of the moment in the circumstances of a given case as clearly inferable from the subsequent conduct of the accused persons. This view was expressed by the Privy Council in a subsequent case Mamand v. The Emperor (A I R 1946 P C 45) and was adopted in Mst. Hamida Bano v. Ashiq Hussain etc. (P L D 1963 S C 109).

14. Having come to a definite conclusion that the circum stances of the case justified the application of section 34, P. P. C. we have no hesitation in overruling the invocation of sec tion 114 by the learned Sessions Judge in the case of Muhammad Hussain, appellant. It now remains to be determined as to what precisely was the offence committed by them. Learned counsel for the appellants tried to stress that the witnesses of the recovery of dang. P. 1, allegedly used by Allah Ditta, appellant, and described to be a heavy dang with metal casing on both ends" by the learned Sessions Judge, having been disbelieved by him, it could not be positively hold that the dang used by Allah Ditta, appellant, was the same as Exh. P. 1 which was certainly a heavy stick with iron‑shod ends, and could justifiably be characterized as a deadly weapon. It was contended that although the dang was described by Mahmood Ahmad, complainant, in the F. I. R. as a heavy weapon, yet in the absence of any such description by any of the P. Ws. at the trial no such inference could legally be drawn on the basis of the F. I. R. which did not constitute substantive evidence. We see lot of force in this contention. Since none of the witnesses bad described the dang, it cannot be stated with certainty that it was the same as Exh. P.

1. But this in our view is not of much consequence for the simple reason that once the fatal injury is admitted to have been caused by Allah Ditta, appellant, which position was not seriously challenged before us, the medical evidence available on the record would go a long way to suggest that assuming Allah Ditta wielded an ordinary stick, it was used with such a great force that it caused fracture of the skull of the deceased with compression of the brain. The description given by the doctor in the post mortem examination report Exh. P. H. clearly shows that the left parietal bone was broken Into five pieces at the seat of injury. In addition to this there were three extensive fractures, one running to the right along the top of the skull 4" in length another running towards interiority 4" in length and the third running backward for 2" long from the site of injury. The brain and membranes were badly lacerated. Death had occurred within 3 to 4 hours of the receipt of the injuries. The deceased was not found to suffer from any visible, or invisible ailment and was a middle‑aged man of average built. All this would indicate that Allah' Ditta appellant could be fully burdened with the responsibility of causing such bodily injury whose likelihood to cause death could have been clearly foreseen by him.

15. Learned counsel for the appellants drew our attention to the following citations taken from the Law of Crimes by Ratanlal and based on different authorities (1928) 10 Lab. 477 and (1889 S J L B) 459: --‑ "Putting it shortly, all acts of killing done with the intention to kill, or to inflict bodily injury likely to cause death, or with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge, that death will be a likely result are culpable homicide not amounting to murder. Where, therefore, the act of the accused does not fall within the first clause of section 300, that is, where the act was done not with the intention of causing death, the difference between culpable homicide and murder is merely a question of different degrees of probability that death would ensue. It is culpable homicide where death must have been known to be a probable result. It is murder, where it must have been known to be the most probable result. Culpable homicide may, therefore, not be murder (1) where notwith standing; hat the mental state is sufficient to constitute murder, one of the Exceptions to section 300 applies, or (2) where the mental state, though within the description of sec tion 299, is not of the special degree of criminality required by section

300. In cases where it is difficult to determine whether the offence, committed by the accused is culpable homicide or culpable homicide amounting to murder, the accused should be convicted of the lesser offence". Reliance was also placed on Ram Jolaha v. Emperor ((1927) 28 Cr. L J 541). In this case as a result of a quarrel between two women one of whom was the wife of the accused, the latter was suddenly provoked and struck the other woman a heavy blow on the head with a very thick lathi and fractured her skull resulting in her death. It was held by their Lordships "that circumstances did not lead to the inference of an intention to kill or of knowledge that the act was so imminently dangerous as in all probability to cause death, and that consequently the accused could not be convicted of murder but only under the second part of section 304 of the Penal Code". Lastly Ghauns v. Emperor (A I R 1931 Lah. 523 (2)) was pressed into service. The established facts of this case were that the deceased used abusive and provocative language whereupon the accused gave one blow resulting in his death. He was sentenced to five years R. I. under section 304, P. P. C. which too was considered excessive in the circumstances and was reduced in appeal to three years' R. I. The facts of that case being obviously distinguishable have no bearing on the case before us.

16. Having tried to appreciate the difference in the degree of criminality as envisaged by section 299, P. P. C. for the offence of culpable homicide and as contemplated by section 300, P. P. C. in a case of murder we are clearly of the view that Allah Ditta had caused such bodily injury as was likely to cause death even though it might not have been intended by him. It could be argued that the doctor having found the injury sufficient in the ordinary course of nature to cause death, the case would more appropriately fall within the purview of clause "Thirdly" of section 300, P. P. C. Since, however, the use of a heavy dang with iron‑shod ends like dang P. 1 has remained unproved, the intention to inflict an injury sufficient in the ordinary course of nature to cause death which could be cumulatively gathered from the kind of the weapon, the force employed and the part of the body on which the blow landed, cannot be clearly spelt out in the circumstances of the case. Accordingly the degree of criminality cannot be taken further than the scope of section 299, Part I, P. P. C.

17. Having already given a finding that section 34, P. P. C. should have been invoked in the circumstances of the case, the conclusion arrived at by us is that the two appellants should have been appropriately convicted under section 304(1) read with sec tion 34, P. P. C. As regards the quantum of punishment we would not have hesitated to award the maximum sentence of transportation for life to each of the appellants‑but having regard to the fact that the occurrence took place as far back as the 15th of May 1966, we consider that an award of sentence of ten years R. I. to each of the appellants should be good enough in the circum stances. Thus the sentence of ten years' R. I. in the case of Allah Ditta, appellant, is maintained while that of Muhammad Hussain is enhanced from three years R. I. to ten years R. I. the conviction having been altered to one under section 304(1)/34, P. P. C.

18. In consequence the appeal filed by the State succeeds while that one filed by the appellants is dismissed. Appeal dismissed.