1969 P Cr (PLP)

Date of hearing : 6th February 1958. AMIRUDDIN AHMAD, J.‑This is an appeal by leave of this Court from the order of the High Court of West Pakistan at Lahore by one Hassan against his conviction under section 326 read with section 34 of the Pakistan Penal Code and sentence of five years' rigorous imprisonment, which were upheld by the High Court. The appellant Hassan, aged about 60 or 65, was tried along with his three sons and a nephew on charges under sections 14b, 302/149 and 307/149 of the Pakistan Penal Code for rioting armed with deadly weapons and in pursuance of the common object of the unlawful assembly to have attacked and murdered Ilam Din and to have made a murderous assault on his two brothers Abdur Rahman and Suleman. The occurrence took place in Killa No. 11 of Square No. 39 within the parties' Chak at about 9 a.m. on 23rd March 1956. The accused were originally tried by the Sessions Judge, Montgomery, who convicted one of the appellant's sons Hakim Ali for his individual act under section 302 of the Pakistan Penal Code and sentenced him to death. He also convicted the appellant and another son of his under section 326 read with section 34, and acquitted the other two holding that as the participants were less than five, there is no case under section 148 of the Pakistan Penal Code against any of the accused. The reasons for the convictions and the acquittals can be gathered from the following remarks made in the judgment :‑ "Sheikh Nisar Ahmad, Advocate, who very ably argued the defence case, rightly contends that the safer course is to convict only those persons who either admit their presence in the fight or bear marks of injuries on their persons." It was urged in support of this appeal that there is no evidence against the appellant to warrant his conviction under section 326 read with section 34 of the Pakistan Penal Code, as he had not been proved to have done any overt act and was unarmed. The learned Advocate‑General, who appeared for the State, frankly conceded that except the evidence of P. W. 5 that he was shouting to his sons and inciting them to assault the complainant party, there is no other evidence implicating him, and he also conceded that in the circumstances of the case the application of section 34 was out of place and he could have been charged with abetment under section 114, P. P. C. and that if evidence as to shouting was not proved, there is no case against this appellant. The appellant did not admit his presence in the fight, but he bore some injuries on his person. It does not appear from the judgment that the evidence relating to the appellant was considered as a whole by the Sessions Judge. The evidence of the complainant, Abdur Rahman, witness No. 3, that the two acquitted persons and Aziz, who was later acquitted by the High Court, belaboured Ilam Din, deceased, with their respective weapons after Hakim Ali had given a takwa blow to the man, does not, connect the appellant with any assault on the deceased. According to his evidence, the rest of the accused, in which i.e necessarily included the appellant, also attacked and beat Suleman and Suleman gave stick blows to Hakim Ali, Hassan, the appellant, and Aziz. P. W. 4, Suleman, on the other hand, stated in his examina tion in chief that he was beaten by Aziz and the appellant Hassan and again said that all the accused beat him, but in cross‑examination he definitely stated "Hasan accused was empty handed and he did not give me any blow." The only implicating evidence against Hassan, the appellant, is that of witness No. 5, who stated that this accused shouted to his companions to attack the complainant party. But this evidence was not taken notice of by either the Sessions Judge or the High Court and apparently not relied upon. The High Court while agreeing with the Sessions Judge that the safer course was to consider the presence of the injured appellants only as established gave the benefit of doubt to Aziz, another son of the appellant, who had injuries on his person and was besides said to have been armed with a vohala, which was recovered at his instance. The High Court acquitted him accepting his statement that the injury on his person was received while working in a sugar‑cane field. The appellant Hassan, who had a simple contused wound on his head, also gave the following explanation for his injuries :‑ "When Hakim Ali and Ahmad were ploughing the vacant land in Killa No. 11, Ilam Din, Abdur Rahman and Suleman came there and started an attack on my son Hakim Ali. On my protest I was beaten." This explanation was not considered by the High Court. It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to cannot a conviction under that section mere presence would not be sufficient there he roof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman. as was stated by P. W.

3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circum stances he could have intended to cause a grievous hurt to anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on to appellant are set aside and he is acquitted. Appeal accepted.