P L D 1950 Peshawar 60 (PLP)

MUHAMMAD SHAFI. J.‑

At about evening prayer‑time on the 8th of August, 1948, an extremely unfortunate but most tragic encounter took place in the fields of Jangal Khel village of the Kohat District, situated at a distance of about two miles towards the north of the Kohat Cantonment Police Station, in which Shahzada aged about 40 years, his brother Gulzada, aged about 35 years, sons of Khanzada on one side, and Abdullah Khan aged about 28 years, son of Sarwar Khan, on the other lost their lives at the spot. Apart from the three deaths mentioned above, Noorzada, a third brother of Shahzada and Gulzada, aged about 35 years, and Sahabzada, aged about 22 years, son of Shahzada on one side, and Khan Gul, aged about 35 years and Lal Khan, aged about 28 years, sons of Sarwar Khan, the brothers of Abdullah Khan deceased, on the other, received stab injuries on their persons. On being examined by the doctor Abdullah Khan, was found to have :

1. A stab wound over the front part of the upper part of the left thigh over the femoral triangle.

2. A scalp deep stab wound " x " on the left side of the front half of the head,

3. A stab wound 2. "x 1. " opening into the abdomen. This injury was the immediate cause of Abdullah Khan's death. Khan Gul had a stab wound 2" x1" going, deep into the abdomen and a few abrasions on the back of his chest. Lal Khan had a stab wound on the outer and back part of the left thigh 1" x " an abrasion I" x " on the right side of the face, a superficial linear incised wound on the back of the right hand " above the root of the middle finger and another similar wound on the back of the web between the thumb and index finger of the left hand. Shahzada deceased had :‑

1. A stab wound 1" x " on the outer aspect of the upper part, of the left upper arm going 1. " deep with a corres ponding exit wound on the inner side.

2. Two stab wounds one on the outer and one on the upper front part of the left side Chest 2" x " each, both going deep into the chest.

3. One incised wound 1. " x " on the front part of the upper part of the head. Injury No. 2 proved fatal. Noorzada was found to have a stab wound on the other side of the left forearm 1. " x " and about 1. " deep, and one incised wound 1" x ", skin deep, over the middle, portion of the left side thigh. Gulzada deceased bad :‑‑

1. A stab wound 1" x " going deep into the abdomen in the lumber region near the spine.

2. Two stab wounds, " apart on the outer side of the upper half of the left side chest going deep into the chest, the size of each being 1" x ", Shahzada had a stab wound 1" x " on the left side of the abdomen, going deep into it, and two stab wounds 1.8/2" X 1/2" each going deep into the chest with surgical emphysema on the outer part of the left side of chest and its back as well as a superficial incised wound " x " over the right side of the forehead just outside the right eyebrow. Injury No. 1 on the person of khan Gul and injury No, 1 on that of Sahibzada were according to the opinion of the doctor dangerous to life. The circumstances which led to the triple murder and injuries to four persons are given differently by the two parties. For the sake of convenience one party shall be referred to hereinafter as Khan Gul`s party, and the other as Sahibzada's party. Khan Gul and his brothers Abdullah Khan, Lal Khan, and Azad Khan lived in the same house. On its one side was the house of one Hamesh Gul, and on the other there were two houses, the northern one belonging to Shahzada deceased and the southern one to his brother Noorzada these houses are situated at a distance of 300‑350 paces from the rest of the Jangal Khel village. Although one of these houses is owned by Noorzada, yet according to the statement of Akbar Hussain Shah, the investigating officer, Noorzada and his brother Gulzada were at the time residing in two separate houses in Pirkhel village, which is a part of Jangal Khel village. A path from the main village Jangal Khel passes by the houses of Abdullah Khan, etc., to the graveyard, which is situated at a distance of 300‑400 paces from them. It was alleged by Khan Gul's party that the day previous to the occurrence was Idul Fitar, Shahzada deceased, by his sitting on the path passing by his house, had invited protests from the womenfolk of the village, who were proceeding towards the graveyard, as is customary for them to do on such days. Abdullah Khan (deceased) had also raised an objection to Shahzada's behaviour; which had led to a quarrel between the two. Nothing serious, however, happened. It was alleged that on the evening of the occurrence Abdullah Khan (deceased) returned to his house, where his brothers Khan Gul and Lai Khan were taking their meals. He was carrying some meals and on being invited by his two brothers said that he had already had it in his father‑in‑law s house. He left the meal, which he was carrying, with his wife Mat. Bibi Hawa and went out in order to answer the call of nature. What happened after that will so far as Khan Guys party is concerned perhaps always remain a mystery, because Abdullah Khan (deceased) died instantaneously. Khan Gul party's version starts from the cries of Abdullah Khan deceased, which Khan Gul and Lal Khan heard, and which were to the effect " Oh Lal Khan, they have killed me." The statement of Mst. Bibi Hawa the immediately before this, she had heard Shahzada saying Abdullah Khan deceased as to why he had taken exception to his sitting in the lane on the previous day seems to be false, because this part of her statement is not corrobo rated by either Khan Gul or Lal Khan. On hearing Abdullah Khans cries, Lal' Khan was the first to climb over the wall towards the south of their house and get on to the other side followed by Khan Gul. According to them they saw Sahibzada and Noorzada surrounding Abdullah Khan deceased, the former had a dagger in one hand and an axe in the other, while the latter had a dagger in one hand and a wear in the other. Both of them were giving blows to. Abdullah Khan deceased. On Lal Khan's arrival, Sahibzada started giving him blows. Khan Gul was engaged by Noorzada, who is alleged to have stabbed him with a dagger. Both Lai Khan and Khan Gul fell down. Khan Gul admits that, he was lying on the ground, when he saw Gulzada and Sahibzada both lying dead. He also noticed Sahibzada and Noorzada injured. Both Khan Gul and Lai Khan, however, do not admit having caused any injury to anyone of the other party, and show their complete ignorance as to how did the opposite party receive the injuries, which in ‑the case of at least two of them proved fatal. On the other hand the version of the incident given by Sahibzada's party was that he and his father bad cultivated water‑melons in a field belonging to one Behram, situated at a distance of about 300 paces from the scene of the occurrence. On the evening of the occurrence Sahibzada was returning from his house to the fields in order to keep a watch over them. He met Abdullah Khan at the spot, who was carrying a number of water‑melons in a sheet of cloth. He required from him as to why he had stolen them from his fields, whereupon Abdullah Khan replied in a defiant way that he was perfectly justified in doing so. shahzada in the meanwhile arrived at the spot and also made the same inquiry from Abdullah Khan, and received the same reply. This led Shahzada and Abdullah Khan to come to grips. Lal Khan, Gul Khan and their third brother Azad Khan were attracted to the spot, who came up running there by crossing over the southern wall of their house. They were alleged to be armed with daggers and an axe. All the three started giving blows to Shahzada, who dropped down dead on the ground. In the meanwhile Gulzada arrived there just by chance and he'' also met with the same fate at the hands of the above three culprits. They were then alleged to have given a blow each to Sahibzada, who also fell down. After Shahzada, Gulzada and Abdullah Khan had dropped down dead, Noorzada was alleged to have come to the spot and was attacked by Azad Khan. He, however, succeeded in apprehending Azad Khan, and tying him with a turban, who in the meanwhile was alleged to have thrown the dagger; which he had with him, into his house close by. Akbar Hussain Shah, who was Station House Officer, Kohat Cantonment, at the time of occurrence, was informed of this triple murder, while he was in the Police Lines, Kohat. He went straight to a. Serai, called the Political Serai, where Lai Khan and Khan Gul were lying in an injured conditions. He recorded the report of Khan Gul andfrom there proceeded towards the spot. He found three dead bodies, lying there and on behalf of Sahibzada's party a report was lodged to him by Janzada, son of Gulzada deceased. He arrested Khan Gul Lal Khan and Azad Khan from one side and Sahibzada and Noorzada from the other. The parties in due course were committed to the Court of Session and were tried in two cross cases. The learned Additional Sessions Judge was assisted at the trial by three assessors, who. gave three different opinions. Arab Din Lambardar was of the view that Gulzada, his brothers and his nephew waylaid Abdulla Khan when the, letter was on his way to ease himself, in the fields. They did Abdullah Khan to death and on a noise being raised, Lai Khan and Khan Gul reached the spot. They attacked the assailants, as a consequence of which a regular fight ensued, in which which, Lal Khan and Khan Gul were also injured and Shahzada and Gulzada were killed, and Noorzada and Sahibzada too received injuries. In his opinion, therefore, Noorzada and Sahibzada and the deceased were the aggressors and the opposite party in injuring them acted in the exercise of the right of self‑defence. Hakim Khan gave absolutely opposite opinion and said that Abdullah Khan and his two brothers Khan Gul and Lal Khan were the aggressors. They attacked Sahibzada's party, to avenge the insult which they bad offered in making, indecent. overtures towards their womenfolk., Sikandar Khan, the third assessor, was of the, opinion that Abdullah Khan left his house simply to ease himself and without any intention to assault anybody. He met Gulzada and Shabzada in the field and they assaulted each other. Abdullah Khan had done Gulzada and Shahzada to death and. in return received injuries at their hands. Khan Gul and Lal, Khan arrived later on and so did Noorzada and Shahzada, and had a free fight with one another in which all of them were injured. The learned trial Judge convicted Noorzada and Shahzada under sections 304 (Part I) 34, 307/34 and 324/34 :Indian Penal Code. He sentenced Shahibzada to seven years' rigorous imprison ment on the first count, two years' rigorous imprisonment on the second, and six months; rigorous imprisonment on the first count, three years rigorous imprisonment on 'the second and one year s rigorous imprisonment on the third. All the sentences in case of both the accused were to run concurrently. The convicts appeal against their convictions and sentence. The main paint which requires determination is, as to what led to this unfortunate encounter. The two different versions 'of the, parties have been given above. The prosecution version at the trial w a given by Mst. Bibi Hawa, widow of Abdullah Khan deceased (P. W. 4), Khan Gul (P.W. 5) and Lal Khan (P.M. 6). Ikhlas (P. W. 8) was produced to say that at the time of the occurrence he, had gone out to the fields to ease himself, when he saw Noorzada, Gulzada and Sahibzada quarrelling with Abdullah Khan (deceased). Sahibzada was armed 'with a knife and Noorzada with a dagger, but he did not remember whether Shahzada and Gulzada were armed with axes or spears. Abdullah Khan (deceased was trying to run towards the side of the wall of his house to save himself, but' the four above‑mentioned inflicted blows on him. He then left on account of fear and hid himself in his house. We are not inclined to place any reliance on the statement of this witness, because it has been contradicted by the state ment of of his own step‑father Hamesh. Gul (Y. W. 9), who said that on the day previous to the occurrence, Ikhlas had gone to his mother‑in‑law's house and was not in his house on the day of occurrence, as he alleged in his statement. His statement is also contradicted by Khan Gul and Lal Khan, who, unlike Ikhlas, stated at the trial that they only saw Shahzada and Noorzada quarrelling with Abdullah Khan; and that they saw Gulzada after, they themselves had been injured. The immediate cause of the quarrel given by Khan Gul's party does not seem to be correct. Shahzada deceased was about 40 years of age and got children out of whom at least one is a grown up boy of 22 years. It is, very difficult to believe that Shabzada deceased at this age and having grown up children would sit on the path just to cast mischievous eye on the women folk of his village. In the F.I.R. Khan Gul had alleged that Shahzada deceased had annoyed his womenfolk, but at the trial he substituted' the womenfolk of the village for his own. No evidence was led to show that the womenfolk of the village were in tact insulted on the previous day by Shahzada deceased. There is also no evidence that as a matter of fact, any quarrel had taken place between Shahzada and Abdullah on the previous day. The immediate motive given by the accused seems to be equally untrue. The investigating officer when he inspected the spot found the field in which water‑melons had been cultivated absolutely intact. Water‑melons bad not come out of most of the. plants and a few that had come out were very small in size and un consumable. There were also no signs of fresh foot tracks in the field, nor were the plants of the water melons in any way damaged. This observation at the spot by the investigating officer would break the entire foundation of the defence version. There is no sense in believing that Abdullah Khan deceased at that hour when the people were awake and the field was being watched by its cultivator and two dogs would go to it just to steal a few water‑melons, which had absolutely no value whatsoever. It was suggested by the learned Advocate‑General that Abdullah Khan deceased might have plucked some watermelon plants in order to annoy Shahzada, but even this cannot be true, because no water melons or watermelon plants were found at the not by the investigating officer which would have been there if Abdullah Khan had been carrying them immediately before he was killed. In the absence of any, motive for the parties to be particularly hostile to each other, we are led to the irresistible conclusion that a quarrel which was innocent in Its inception took place over some trivial matter between Shahzada and Abdullah. Shahzada, whose house was close by, arrived at the scene and in all probability armed with a dagger, and dressed in a jacket and shorts. From this particular time onwards the incident took a serious turn. Sahibzada on his arrival might have dealt a blow, to Abdullah Khan, who raised an alarm which then attracted Khan Gul and Lal Khan, who were at the time sifting and having their meals in their, own house. They, when, they came to the spot might also have armed themselves with some weapons, but it is not clear whether both or one of them had arms. Noorzada and Gulzada seem to have been informed by Gulzada (P. W 9), and they also came to the spot presumably both or one armed with some weapon. A free fight ensued between the parties, which in our opinion did not take any appreciable time, but during the 'short time for which it lasted. Gulzada and Shahzada on one side and Abdullah Khan on the other lost their lives, and Khan Gul, Lal Khan, Shahzada and Noorzada got injured, two of them dangerously. In this view of the case we are inclined to agree with the learned Additional Sessions judge that whoever caused the murder, did so without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's, having taken undue advantage or acted in a cruel or unusual manner. Shahzada, if he caused injuries to Abdullah Khan, he was entitled to the benefit of Exception 4 to section 300 Indian Penal, Code, because he .was provoked by Abdulla Khan, who was quarrelling with his son Sahibzada. It may be noted here that we are not convinced that Shahzada at this particular moment caused the fatal blow to Abdullah Khan deceased. Khan Gul and Lai Khan were then attracted to the spot and they were entitled to the benefit of this Exception, because seeing that their brother 'was being mil‑handed by Shahzada and his son they must have lost control of themselves too. The same argument applies to Noorzada and Gulzada. All the participants, therefore, were clearly entitled to the benefit of Exception 4 to section 300 Indian Penal Code. The learned trial judge, however, in our opinion, was wrong after he had found with regard to the death of the three persons that the participants in the fight were guilty under section 304 (Part I) Indian Penal Code, in convicting them with regard to the injuries on the injured persons, under sec tions 307 and 324 Indian Penal Code. Applying the same Exception, the correct sections under which they should have been convicted, were 308 and 334 Indian Penal Code. On the evidence produced on the record however, it cannot be said as to which accused caused which injury and on which has taken place in this case, it is in fact impossible for anyone to gay with any amount of precision as, to who caused which injury. It is on account of this fact that the learned Additional Sessions judge has applied section 34 Indian Penal Code in order 19 convict the two appellants. Before, however, a person can be saddled with constructive liability and convicted for the act done by another person under section 34 Indian Penal Code it must, be satisfactorily proved by the prosecution that the person so convicted had common intention of doing that particu lar act with 'the person actually doing it. Common intention should not be mixed' up with " common object " in section 149 Indian Penal Code. Both are not in any way synonymous. Under section 149 Indian Penal Code a person who is a member of an Unlawful assembly is guilty of the offence committed by another member of an unlawful assembly, although he had no intention to do it, because it is done in the prosecution of the common object oft the assembly of which both were the members. Similarly the" same " or " similar " intention should not be confused with common intention. The dividing line between two, as pointed out by their Lordships of the Privy Council in case Mahbub Shah v. Emperor A I R 1943 P C, p. 118 is very thin, yet it is very material and substantial. A person in doing an act may have the same or similar intention with another person doing the same act, yet he may not have a common intention with him so, as to invoke the aid of section 34 Indian Penal Code in convicting him. In the latter case there is always an element of pre‑planning before the act is actually done between two or more persons. Under section 299 Indian Penal Code if any person causes death by doing an act with the intention of causing death, or with the intent., of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits an offence of culpable homicide. Under section 300 Indian Penal Code culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or, ,secondly, if it is done with the intention of causing such bodily, injury as the offender knows to be likely to cause death of the person to wham the harm is caused ; or, thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or, fourthly, if the person committing act knows that it is so imminently dangerous that it must in all probability cause death, and com mits such act without any excuse for incurring the risk of causing death or such bodily injury as aforesaid. Culpable homi cide is not murder, if the offender whilst deprived of the power of self‑control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident, it the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the' power given to him by law and causes the death of the person against whom he is exercis ing such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence, if the offender being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by' doing an act which, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill‑will towards the person whose death is caused, and lastly, if it is committed without premeditation in a sudden fight in the heat of a passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. If culpable homicide is murder, it is punishable under section 302 Indian Penal Code, and if it is not, it is punishable under section 304 (Part I) Indian Penal Code. If, however, the person committing an act, which results in the death of another person, does it with the knowledge that it is likely to cause death but without the intention to cause death or such bodily injury as is likely to cause death, he is guilty under section 304 (Part II) Indian Penal Code. Since the element of intention is missing in the last mentioned case, the question of two or more persons having a common intention‑ does not at all arise. It is therefore that the majority of the High Courts in pre‑partioned India including this Court (Sher Ali v. Emperor 1942 Peshawar Law Journal page 51), have held that section 34 Indian Penal Code will in no case apply to an offence falling under section 304 (Part II) Indian Penal Code. No hard and fast rule, however, can be laid down as regards the application of ‑ section 34 Indian Penal Code to an offence falling under Part I of section 304 Indian Penal Code. Every case shall have to be decided on its own merits. Reading the two parts of section 304 Indian Penal Code together, one is led to the irresistible conclusion that while the intention to commit the death is missing from the second part, it is very much present in the first, and when a person commits the death of another person even if he may be unavoidably driven to it, can have common intention No it, another person committing death under the same compulsion It is true that in some cases in which a person commits the death of another person, without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in an unusual manner, he may have same or similar intention with another person, but not' the common intention, yet the possibility of his common intention with another person developing during the course of the event cannot altogether be excluded. In this case, as has already been observed, the entire incident took a very short time, and the participants in the fight did not come to the spot in a body, but arrived individually and took part in the fight on the spur of the moment. Under the circum stances, in our view, section 34 Indian Penal Code cannot be applied to the facts of this case. As the individual liability of each of the accused‑appellant cannot be determined, section 34 Indian Penal Code will not apply. We, have therefore, no other alternative, but to accept this appeal, set aside the convictions and sentences of the accused‑appellants and acquit them of the charge. They shall be released forthwith. K. M. A. Appeal accepted,