1969 P Cr (PLP)

Penal Code (XLV of 1860), S. 302/34‑‑Concerted attack on deceased with iron‑shod lathis‑‑Plea that accused merely wanted to give heating by sway of punishment held not sustainable‑Person joining accused in such attach‑Equally liable. M. Sleem, Senior Advocate Supreme Court (M. B. Zaman, Advocate Supreme Court with him) instructed by M. A. Rahman, Attorney for Appellants. J. H. Rizvi, Advocate‑General West Pakistan (Ataullah Sajjad, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 23rd February 1959. CORNELIUS, J.‑This appeal is brought before the Court by special leave granted to two persons, Muhammad Akbar and Farzand Ali, who stand convicted under section 302 read with section 34, P. P. C., in order to consider the question `whether section 34 of the Pakistan Penal Code was applicable to make both the petitioners liable for murder". Four persons, namely, the two appellants and two others named Muhammad Bakhsh and Muhammad Sharif were tried un charges under section 302/34, P. P. C. for the murder of Mahboob Shah and under section 323/34, P. P. C. for causing simple injury to a companion of Mahboob Shah, named Mukhtar Hussain Shah. The assault was made on the premises of Railway Station Sihala, which is some 45 minutes running distance to the south of Rawalpindi. The parties belong to two villages situated close to this station and members of both parties were to travel by the same train from Sihala to Rawalpindi on the day in question, to appear in a Magistrate's Court in which. Muhammad Akbar and Farzand Ali, the present appellants, were standing trial on a charge under section 324, P. P. C. for an assault on Mukhtar Hussain Shah. There was also pending in the same Court a complaint by the party of the accused against Mahboob Shah deceased, Mukhtar Hussain Shah and others under section 498, P. P. C. in respect of the wife of the appellant Farzand Ali. While the train was standing at Sihala, according to the prosecution story, the four accused parsons assaulted first Mahboob Shah and then Mukhtar Hussain Shah with iron‑shod lathis. Mukhtar Hussain Shah got off comparatively lightly. Although the presence of three contused wounds on his head indicates that a heavy attack was levelled at him, it appears he sustained no fracture or other serious injury. His other injuries were on the left arm, and were of a minor nature. Mahboob Hussain Shah, however, sustained very serious injuries. He was found to have four contused wounds on the head, two of which were bane deep, three contusions on the front of the chest, a contusion on the right side of the back, and a couple of abrasions on his knees, which were probably sustained through falling on his knees, before he collapsed. The skull was smashed into pieces. The fronto-parietal suture had been completely split apart. The doctor who conducted the post‑mortem examination was induced in cross‑examination to say that it was possible that the superficial injuries on the heats could have resulted from a fall following the receipt of the laths blows, but the underlying fractures could not have been so caused. The fact of the abrasions on the knees shows that the bead could not have shuck the ground with any great force, since the force of the fall was broken by the deceased falling on his knees. In any case, the doctor's opinion on this point was false since the wounds on the head were one on the fore‑head, another on the very top of the head described as the vertax, a third on the frontal area of the head in the middle line, and only the last ague was oil the left parietal area, where the head might possibly, in falling have struck the ground. We feel no doubt that the external injuries on the head as well as the internal fractures were the result of heavy blows with blunt weapons directed at the head, and struck with such force as to justify the conclusion that the intention was to break the head. Such a proceeding generally results in death. The intention behind the attack is thus ascertainable without difficulty. The learned Judges in the High Court have held that the assault on Mahboob Shah was by Muhammad Akbar and Farzand Ali only and that the other two accused persons confined their attack to Mukhtar Hussain Shah. This conclusion is in our opinion justifiable on a fair reading of the evidence. In the First Information Report, made by Mukhtar Hussain Shah, he said that he himself was assaulted by Muhammad Sharif and Muhammad Bakhsh and while he was also clear that Muhammad Akbar and Farzand Ali attacked Mahboob Shah, he did not say that Muhammad Sharif and Muhammad Bakhsh also assaulted the latter. The improvement on the latter point was made by the course of the proceedings, but the evidence is throughout clear to the effect that the attack by the party of the accused was initiated by Muhammad Akbar and Farzand Ali, who jointly assaulted Mahboob Shah. The result of the attack appears clearly from the evidence of the doctor, and is consistent with the existence of strong hostility on the part of both Muhammad Akbar and Farzand Ali towards Mahboob Shah, as appears from the prosecution evidence. That the attack was concerted also appears from the evidence with clearness. The learned Judges in the High Court nave expressed the opinion that the number of blows, marks of which were found, on the person of Mahboob Shah could possibly have been struck by two men, and with that view we find it impossible not to agree. The liability of both the appellants, namely, Muhammad Akbar and Farzand Ali for the result is therefore joint and equal in terms of section 34, P. P. C. Having regard to the injuries found, we think it is impossible to argue that nothing was intended beyond the giving of a mere beating by way of punishment. The intention to kill appears only too clearly from the result. While the evidence is perfectly clear as to the delivery of at least one blow on the head of Mahboob Shah by Muhammad Akbar, there are differences in this respect regarding Farzand Ali, i.e., whether or not he too hit Mahboob Shah on the head. In view, however, of the finding that Farzand Ali joined with Muhammad Akbar, in making a concerted attack, as indicated above we entertain no doubt that his liability for the result must be placed on the same level as that of Muhammad Akbar. We find no force in this appeal and we accordingly dismiss it. Appeal dismissed.