P L D 1961 (W (PLP)

8. From the side of the assailants, the appellant Hakim Ali sustained three injuries out of which one was grievous and caused by a sharp edged weapon. It consisted of an incised wound on the back of the right thumb, the underneath bone being cut through. The appellant Sadiq had a contused wound above his left ear, which was simple in nature and caused by a blunt weapon. Finally, the appellant Akram also had a contused wound on the inner aspect of his left index finger, which was simple in nature and was caused by a blunt weapon. The accused party, therefore, sustained only five injuries, all of them being of a superficial nature on the hands or fingers etc. except one involving the cutting of the bone of the right thumb.

9. At this stage the various relationships of the appellants inter se may be mentioned. The appellants Niamat, Dilawar Shafi and Wali Muhammad are real brothers. Akram and Aslam are sons of Niamat. Hakim Ali and Sadiq are brothers and their sister was married to one Khushi who is now dead, and who was the brother of the appellants Niamat, Dilawar, Shafi and Wali Muhammad. The appellant Ashiq is a grandson of Lashkar P. W., and is also related to the other appellants, as one of his female cousins is married to the appellant Dilawar.

10. As regards the complainants, mention has already been made the Lashkar and Jamal Din are brothers, while Sadhara and Hakim Ali P. Ws. are brothers and are nephews of Dara deceased, and Sulaiman was the servant of the deceased. Dara deceased, however, was not related to Lashkar and Jamal Din and had only joined Lashkar as a partner for the purpose of the lease of the Government land in question.

11. At the trial, all the appellants pleaded ‑not guilty and asserted that they bad been falsely implicated due to enmity between Niamat appellant and his brother Wali Muhammad on one side and Lashkar P. W. on the other. They stated that the enmity was concerning land owned by one Mst. Rani, who is an aunt of two brothers, Ramzan and Hassan, who are married to two grand‑daughters of Lashkar. Mst. Rani's two daughters were married to Niamat and his brother Walt Muhammad, but these two girls died. Niamat and Wali Muhammad are in possession of land belonging to Mst. Rani. The grand‑sons‑in‑law of Lashkar, namely, the two brothers Ramzan and Hassan, are anxious to get possession of the land of their aunt Mst. Rand from the appellants Niamat and Wali Muhammad, and for that reason there is bad blood between the two families. It is on the record that there have been security proceedings between the rival parties interested in Mst. Rani's land, and Lashkar P. W. stood surety for Ramzan. All the other allegations regarding the interest of Niamat and Ashiq in the lease of the Government land were denied. Two of the appellants, however, namely, Sadiq and Hakim Ali admitted the occurrence. The version given by Hakim Ali was that after offering Eid‑ul‑Fitar prayers in the mosque of Basti Ujagar Wali, he came out along with the appellant Sadiq, and at that moment, Dara deceased, and the prosecution witnesses Lashkar, Jamal Din, Sadhara, Hakim Ali, Sulaiman as well as Lashkar's son Umaid Khan attacked them Sadhara being armed with a sword and the rest of them with dangs. They were rescued by the people who had collected at the mosque and soon became unconscious and did not know what happened thereafter. The appellant Sadiq adopted the same version. Two other appellants, namely, Aslam and Akram pleaded alibi. None of the appellants, however, produced any defence evidence to substantiate their pleas.

12. The learned Additional Sessions Judge, Lahore, Mr. B.A. Mirza who tried the appellants, came to the conclusion that a fight did take place between the parties over the lease of the land in question, that all the nine appellants participated in the attack at Lashkar's house during which Dara was killed and the others injured, but he considered that the motive for the attack was weak in nature and "was not acute enough to impel Niamat and other accused to murder Dara deceased, and instead indicates that the accused had merely the idea of giving chastisement to Dara deceased. Consequently, all the nine accused cannot be held guilty of the murder of Dara deceased under section 302/149, P. P. C. and only those amongst them can be held liable for his death who are established to have given the fatal blows." He then proceeded to consider as to who were the accused who had given the fatal blows, and found that due to discrepancies between the statements made in the first information report and at the trial, it was difficult to pin down the responsibility for the fatal attack on individual accused persons. He therefore, acquitted all of them of the offence of murder, but observed that "all the nine accused are, however, to be deemed to have the knowledge that the lethal weapons like takwas with which Niamat, Dilawar and Aslam, accused, were armed and the barchi with which Sadiq accused was armed were to be used in the course of the attack by all of them and as such they are to be deemed to be vicariously liable under section, 149 P. P. C. for the grievous and simple injuries caused thereby and also for the simple injuries which were caused to the injured persons with the dangs.

13. On these findings he convicted all the nine appellants under sections 148, 323, 324 and 326 read with section 149 of the Pakistan Penal Code. lie sentenced Niamat, Dilawar, Aslam and Sadiq to rigorous imprisonment for three years under section 148, P. P. C., one year undersection 323, P. P. C., three years under section 324, P. P. C. and five years under section 326 of the Pakistan Penal Code. The remaining five accused were awarded two years' rigorous imprisonment under section 148, P. P. C. six months' under section 323, P. P. C., one year under section 324, P. P. C. and three years under section 326, P. P. C. All the sentences were ordered to run concurrently in each case.

14. The presence of injuries on the persons of the pro secution witnesses as well as three of the appellants leaves no doubt that the incident did take place between the parties. In fact, as already stated, the incident is also admitted by at least two of the appellants, namely, Sadiq and Hakim Ali. Further the position of the defence, as revealed in cross‑examination of the various prosecution witnesses, is that initially an altercation took place between the appellant Ashiq and his uncle Umaid Khan, who is the son of Lashkar P. W., in the mosque when the parties were offering Eid prayers and that in consequence of this quarrel between these two men, Dara deceased, Sadhara, Hakim and Suleman (P. Ws.) were called by Umaid Khan as helpers and then there was a fight between the complainant party on one side and the appellants, Ashiq, Hakim Ali, Akram and Sadiq on the other. It was also sought to be made out in cross -examination that the venue of the fight was the vicinity of the Eidgah and not the courtyard of Lashkar's house. As regards the location of the fight we think the matter is clinched, by the presence of blood in Lashkar's courtyard Sardar Munammad Iqbal, the learned counsel appearing for the appellants, has strenuously argued that if indeed the fight did take place inside the courtyard, then blood should have been found at more places than one, as injuries were caused to the deceased and others with sharp‑edged weapons and they must have bled profusely. The medical evidence on the record does not give any indication as to, the amount of bleeding that may have taken place from the incised injuries sustained by the prosecution witnesses and, therefore, on the record, it is not possible to support any theoretical assertion that at the scene of offence blood should have been found at more places than one. We are satisfied that blood was found in the courtyard of Lashkar and that this is a sure indication that the fight took place there. There is no material at all on the record to support a suggestion that the fight took place anywhere else. If indeed that were the case, it should have been possible to bring out in cross‑examination the places where blood should have been found and also the presence of traces of blood on the track along which the injured persons were taken to Lashkar's house. This is not so, and the conclusion is inevitable that the location of the fight as given by the pro secution is clearly proved on the record. And no question of the exercise of the right of private defence arises.

15. The real question which falls for determination is regarding the identity of the assailants. The case of the three injured appellants, namely, Hakim Ali, Sadiq and Akram, need pot detain us long. The presence of the injuries on their persons is a clear pointer to their participation and this in fact is the case put up by the defence in cross‑examination. Two of these persons themselves admit the occurrence and only Akram denies it, but in face of the presence of injuries on his body, his denial has no force. The case of the fourth appellant, Ashiq, is also free from any difficulty. According to the defence version it is he who had started the quarrel inside the mosque and parti cipated in the fight later. He is mentioned as an assailant by his own maternal grand‑father Lashkar in the first information report and, therefore, we have no doubt about his participation. The subsequent efforts of Lashkar and his brother Jamal Din to retrieve the position with regard to Ashiq can be safely ignored.

16. As regards the remaining five appellants, it was first contended that they have been falsely implicated due to enmity between the grand‑sons‑in‑law of Lashkar and the brothers Niamat and Dilawar etc., owing to the latter's possession of Mst. Rani's land. It was also argued that one Akbar, a cousin of Hakim and Sadiq appellants, had contested the Lambardari against Lashkar and for that reason there was enmity between Lashkar and these two appellants. While these facts are correct, we are not persuaded that they constitute a sufficient reason for Lashkar to falsely implicate these appellants in a capital offence. Lashkar did not stand to gain directly from Mst. Rani's land, and as regards the Lambardari, he was the successful contestant and, therefore, if there is any ill‑will, it would be in the mind of the defeated candidate. We also find that there is no motive for false implication brought out on the part of any of the pro secution witnesses connected with Dara deceased, namely, Sadhara, Hakim Ali and Suleman. It seems to us, therefore, that this is not a case where any of the appellants has been falsely implicated due to ulterior motives of any of the prosecution witnesses

17. The learned counsel for the appellants then made an attempt to show that there has been a delay in lodging the first information report, as the complainant party took time for consultations before reporting the matter and thus the names given in the first information report should be viewed with suspicion. We find that there is no substance in this argument. In the first place, there is hardly any avoidable delay. The incident took place at about 11 a.m. and the report is timed 5 P.m. The police station was at a distance of twelve miles. It is not brought out on the record that Lashkar travelled by any fast conveyance. In fact, the learned counsel himself conceded that about four hours might be allowed as travelling time. If that is done then only two hours' interval is left which would need explanation. Lashkar has stated in the first infor mation report as well as at the trial, that he first went to village Jajjal to inform the relatives of Data deceased, that they in turn wanted to see the injured persons before proceeding to the police station. This process must have naturally taken some time even though the distance between the scene of offence and village Jajjal is not more than two miles each way. It has been argued before us that this part of the story is unnatural and that Lashkar and the relatives of the deceased should have proceeded to the police station directly from Jajjal which falls on the way from Lashkar's house to the police station. We are, however, unable to agree with the learned counsel as it seems to us that the relatives of Dara deceased would naturally be anxious to see Dara, his two nephews, Sadhara and Hakim Ali, and his servant Suleman, who were all lying in the house of Lashkar, before proceeding to the police station so as to satisfy themselves as to what had happened. Thus the two hours' interval would be satisfactorily explained. Even otherwise, Lashkar is an old man and he must have been pretty shaken up with these events happening in his house on the Eid day and it would not have been unreasonable to allow him some time to recover from shock before proceeding to the police station. Finally, as already mentioned, we have not been able to understand as to who would like to manipulate the facts before reporting them to the police. The relatives of the deceased had no motive to embark on any such process, nor did Lashkar and his brother Jamal Din or his son Umaid Khan have any such motive. In fact, the veracity of Lashkar's statement in the first information report is clearly evidenced by the fact that he included his own grandson Ashiq among the list of the assailants. We have, therefore, no hesitation in saying that there has been no avoidable delay in reporting the matter to the police nor is there any ground for holding that the names of the assailants have in any manner been manipulated after mutual consultations among the com plainant party.

18. It was next contended that Niamat appellant has plenty of land of his own and he could not, therefore, have any interest in the lease of Government land taken by Lashkar P. W. The argument seems to be that there was no motive at all for Niamat and his associates to launch an assault on the deceased and others. This argument, however, contradicts, in some measure, the stand taken up by the defence itself in cross‑examination, as it is virtually conceded that the quarrel between Ashiq and his uncle Umaid Khan was with regard to this very land, and that in the subsequent fight Niamat's son Akram participated. !t is not explained as to why Akram associated himself with Ashiq if he or his father Niamat appellant were in no manner interested in the affair. It seems to us, therefore, that whether Niamat had enough land of his own or not, he was certainly interested in the matter of the lease of the Government land either for himself or for some member of his family or may be for Ashiq, and that the fight took place for this very reason and for none other.

19. Sardar Muhammad Iqbal then drew our attention to the apparent contradictions between the eyewitness account of the incident and the medical evidence. The prosecution witnesses have stated, one after the other, that the injuries on the head of the deceased were caused with takwas but the medical evidence shows that only one of the injuries was of incised nature while the others were inflicted by a blunt weapon. It seems to us that the takwas must have been used from the blunt side, although it is not specifically stated by any of the witnesses. During the attack the witnesses only saw that the assailants were armed with certain weapons which they used in delivering the blows on the deceased. There is, therefore, nothing unnatural or suspicious in their description that the blows were delivered with takwas. If indeed the blows were not delivered with takwas but with dangs and the witnesses were out to falsely implicate all or any of the assailants, there was no reason why they could not attribute more appropriate weapons to these appellants to whom they are now assigning takwas. Similar is the case with regard to the spear blow delivered by Sadiq to Suleman. It is stated that the spear was used as a dal7g, It appears to the learned counsel that this has been invented by the prosecution witnesses in view of the fact that no piercing injury was found on the body of Suleman. We have read the Urdu version of the evidence of the prosecution witnesses and we consider that what it amounts to saying is that the spear blow was delivered in the manner of a dang blow. In other words, it was not thrusted into the body of Suleman. This again is not an unnatural use of the weapon nor is the description improbable.

19. Lastly, some discrepancies between statements in the first information report and those made at the trial were brought out regarding the manner in which the takwa blows were delivered. The contention was that the first information report did not give the details which were later supplied by the prosecution witnesses at the trial. Suffice it to say that the first information report is generally not so detailed as a witness's evidence at the trial and, secondly, the discrepancies in this case are not really such as would throw doubt about the participation of any of the appellants in the assault.

20. Having given our careful consideration to the several contentions raised before us we have come to the conclusion that the evidence on the record clearly establishes the participation of all the nine appellants in the assault at Lashkar's house and that there is no reason to hold that any of them has been falsely implicated. In this respect we are in agreement with the findings of the learned trial Judge, We also agree with him that no safe conclusion can be reached as to the identity of the individual accused persons who delivered the fatal blows on Dara deceased.

21. We now proceed to examine as to what offences have been committed. No difficulty arises as regards the offence under section 148 and sections 323, 324 and 326 read with section 149 of the Pakistan Penal Code. Once the finding is given that the appellants formed themselves into an unlawful assembly and carried out an assault after arming themselves with takwas, dangs and spear and in that assault they caused simple and grievous injuries in prosecution of their common object, they can all safely be convicted of the offences under the aforementioned sections. This position was conceded by Sardar Muhammad Iqbal. But the question is whether under the circumstances of the case the appellants should not also be held vicariously liable for causing the death of Dara deceased. The act of causing this nature and death clearly amounts to the offence of murder in view of the number of injuries caused on a vital part of the body, namely, the head. The case would be covered by bode, second and third clauses of section 300 of the Pakistan Penal Code.

22. The learned counsel for the appellants has contended that the common object of the unlawful assembly formed by the appellants was not to commit murder, but only to carry out an assault on Dara deceased and his companions as a chastisement and, therefore, constructive liability under section 149 cannot extend beyond causing grievous hurt. He has drawn our attention to in re: Manakhal Kumaran and others Appellants (A I R 1942 Mad. 446), where the several assailants were not constructively held liable under section 149, Pakistan Penal Code, for the death caused by two of the members of the unlawful assembly. In that case one of the assailants was armed with a pen‑knife and the other with a dagger, while the remaining were empty‑handed. The learned Judges concluded: "In all the circumstances of the case and the nature of the weapons used, the evidence was insufficient to show that the common object of the accused was murder. Their com mon object was only to cause hurt." It appears to us that the decision in this case is confined to its own facts and no principle of interpretation, helpful to the appellants emerges from it.

23. Reference was also made to Gheba and others v. Crown (P L D 1949 Lah. 453) where the meaning and application of section 149 were discussed at some length. In that case the common object of the unlawful assembly was the abduction of a woman and the abductors were armed with sticks, hatchets and sharp‑edged weapons. Their Lordships observed that: "The mere fact that the common object was the abduction of a female would not lead to the necessary inference that all the persons taking part in it mere fixed with the knowledge that some persons might be killed in the adventure. This result might or might not ensue . . . . . . . Whether murder was or was not likely is a question of fact to be determined on a careful analysis of all the circumstances of the case. The nature of the weapons and the injuries actually inflicted must receive their due share of attention . . . . But no hard and fast rule can be laid down which would easily cover every case. Each case shall have to be decided on its peculiar facts and circumstances. As I pointed out before in 1947 Lahore 189 where from a particular conduct two inferences are possible, I would presume the one which is less harmful to the accused."

24. This question was again considered in Nawab and others v. The Crown (P L D 1954 Lah. 78), and it was held that "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 any one 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 . . . . . . . . If, however, the offence com mitted 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."

25. Mention may also be made of Shadman and others v. The State (P L D 1959 Lah. 405), in which the same view was reiterated and it was further observed that "The decision of the question as to whether a case is covered by section 149 of the Pakistan Penal Code, or not depends upon its own facts and it is only after bearing in mind all the circumstances that it can be held whether a member of an unlawful assembly is liable for the consequences of an act not committed by him."

26. We have not considered it necessary to dilate on the facts of the cases cited before us for the simple reason that we agree with the principle laid down in these authorities that the question whether all the members of an unlawful assembly are liable for an act committed by one or more of them, is a question of fact which has to be determined in relation to the peculiar circumstances of each case.

27. Section 149 of the Pakistan Penal Code has two parts, one dealing with liability for offences which are committed in prosecution of the common object of the unlawful assembly and the second dealing with liability for those offences which the members of the assembly knew to be likely to be committed in prosecution of that object. The distinction between the two parts of the section has been brought out in several authorities and we may here refer to Rahman Samail and others v. Emperor (A I R 1939 Lah. 245) and Parmeshar Din v. Emperor (A I R 1941 Oudh 517), in which the Lahore authority was followed. The relevant observations of their Lordships of the Lahore High Court may be reproduced as follows :‑ "Once an assembly has become unlawful then all things done in the prosecution of the common unlawful object of that assembly are chargeable against every member thereof. The liability of every member extends not only to the acts intended by all to be done, but also to those offences which are likely to be committed in achieving the common object."

28. We are in respectful agreement with these observations. We consider that to attract the constructive liability incurred under section 149 of the Pakistan Penal Code, it is not necessary to show that the offence committed was identical with the common object of the unlawful assembly, nor is it an essential requirement for such liability that the offence committed must in every case be directly and immediately connected with the pro secution of the common object of the unlawful assembly. The second part of the section would clearly come into play where the offence was such as the members of the assembly knew to be likely to be committed in prosecution of the object. When deciding the question of constructive liability under section 149 of the Pakistan Penal Code it is necessary to consider the effect of both the parts of the section, the second part being of a wider import than the first.

29. In the present case, we have found that the appellants formed themselves into an unlawful assembly and they were variously armed with takwas, dangs and one of them was carrying a spear. They deliberately launched an assault on the deceased and his companions when they were sitting in the house of Lashkar P. W. In all seventeen injuries were inflicted on the deceased, and forty‑four on his companions. Most of the injuries to the deceased were on his head or the adjoining parts of the body with the result that his skull bones were fractured. It appears to us, there fore, that whatever the common object of the unlawful assembly formed by the appellants, each of them must be burdened with the knowledge that death was likely to be caused in an assault carried out with such deadly weapons. In other words, on the facts of this case, we are left in no doubt that the members of F the unlawful assembly knew that murder was likely to be com mitted in the prosecution of the common object of the assembly. We consider therefore, that all the appellants are constructively liable under section 149 of the Pakistan Penal Code fort the offence of murder in respect of the death of Dara deceased.

30. On the view we have taken, the State appeal against acquittal (Appeal No. 735 of 1959) must be accepted. We, there fore. set aside the acquittal of the appellants on the charge under section 302/149, P. P. C., and instead convict them of the same‑ la We think that it is a case where the extreme penalty of death should not be exacted and for that reason we would sentence each of the appellants to transportation for life under section 302/149, P. P. C.

31. As regards the convictions already recorded by the learned Judge, we have mentioned above that no difficulty arises in maintaining them. The sentences awarded on each count are appropriate and do not call for any interference. The result is that the convicted persons appeal (Appeal No. 147 of 1959) is dismissed. The sentence of transportation for life imposed by us shall run concurrently with the other sentences already awarded to the appellants. A. H. State appeal accepted.