P L D 1961 (W (PLP)

MUNSHI, J.‑Agreeing with two assessors and disagreeing with one the learned Additional Sessions Judge of Jacobabad has convict ed the two appellants Khanan and Suleiman of the offences punish able under sections 379/326/34, 323/34 and 302/34 P. P. C., and sentenced them to suffer R. I. for I year under Section 379, s years under Section 36/34, 6 month under Section 323/34 and to death under Section 302/34, P. P. C. ‑ Their. appeal and the reference for the confirmation of the sentence of death imposed upon them are now before us. On 12‑2‑59 in the afternoon Khair Mohammed and his son Gul Mohammed took their bullock cart to jungle to collect fire‑wood. Leaving the cart near Mari village they went inside the jungle to collect wood. Having collected some wood, they took it to the cart when they saw four men taping away their bullocks. They were the two appellants plus Khamiso and Sodho (since acquitted) They left the fire‑wood and ran after the culprits with whom they asked to leave the bullocks but instead of doing so they turned back and gave blows to both father and son with the weapons they had. Khamiso and appellant Khanah had hatchets while Sodho and appellant Suleman had lathies. As a result of the blows both fell to the ground. On their cries, came Wali Mohammed and Taj Mohammed who were at that time keeping watch over a fish pond nearby which they had taken on lease. Seeing then, the culprits ran away. During the struggle, Gul Mohammed had given a lathi blow to appellant Khanan. Leaving Wali Muhammed at the scene, Taj Mohammed went, to the village which is about l miles from the scene to inform people. He came back with Khamiso and witness Jakar with two cots. All these men were told by Khair Mohammed and Gul Mohammed that they had been given blows by the two appellants and Khamiso and Sodho. The injured were then taken to Ghouspur Police Station where Wali Mohammed lodged a report which was recorded by A. S. I. Mohammed Waris at 7 p. m. The latter prepared a mashirnama of the injuries on their persons ; both of them were unconscious at that time. The A. S. I. sent them to the hospital of Ghouspur for examination and treatment. He then proceeded to Noorali Shah village where the appellants lived. There he found appellant Khanan lying injured in the landhi of Noorali Shah. He prepared mashirnama of, the injury. He also took possession of the shirt which was on the person of Khanan as it was stained with blood. On 13th H. C. took the Mukhtiarkar of Kandkot to the hospital to record thq s;ate ment of Khair Mohammed as his candition was becoming bad. Gul Muhammad continued to be unconsious. He expired at 10‑40 p.m. The A. S. I. searched the house of the it:ppellents but nothing incriminating was found. The A. S. I recorded the statement of appellant Khanan in the hospital where he had been sent for treatment and then arrested him. On 15th, the A. S. 1. arrested appellant Suleiman. At that time he was wearing a sweater which was stained with blood. The A. S. 1. took posses sion of the sweater under a misharnama. Thereafter Suleiman took the police and the mashirs to his house, where, from the hedge at the baek of the house, he took out a blood‑stained laths and produced it before the police. After completing the investiga tion, the police challaned two appellants and Khamiso and Sodho. The learned Judge acquitted Khamiso and Sodho and convicted and sentenced the two appellants as indicated above. In his statement in the Courts below, Khanan denied all the allegations. He even denied the recovery of the shirt from his person. As ,for the injury on his head, he stated that he had received the same a day before the incident as a result of fall from a tree. About the witnesses he stated that one Sawan whom he claims to be his cousin had abducted Mst. Lalan wife of Gula and `Masat' of Wali Mohammed. According to him Wali Mohammed suspected that he had a hand in the abduction. Suleiman also denied the allegations. He disowns the sweater which according to the police was secured from his person. He also denied having produced the laths in court. He stated that he had been involved because he was cousin of appellant Khanan. There is no doubt that Gul Mohammed 'died of the injuries he has received. There is also no doubt that grievous hurt with a hatchet and simple hurt with a lathi were caused to Khair Mohammed. There is also no doubt that theft of the two bullocks of Khair Mohammed had taken place on 12th February 1959. These points in fact are not in dispute. Indeed the learned counsel for the appellants frankly conceded that Gul Muhammad and Khair Mohammed had received the injuries and that these injuries were caused by the two appellants. Khair Mohammad has stated that on the day of the incident he and his son Gul Mohammed had taken their bullock‑cart to jungle to bring fire‑wood and that when they were returning to the cart which they had left at some distance from the jungle, they found 4 men including the two appellants taking away their bullocks and that they asked the culprits to let go the bullocks who instead of doing so assaulted them. According to Khair Muhammad Khanan had a hatchet and Suleman a lathis fee has further stated that on his cries, came Wali Mohammed and Taj Mohammed to whom he gave the above information. He has also stated that Gul Mohammed had dealt a lathi blow to Khanan. In cross -examination he has stated that on their challenge, the culprits did not leave the bullocks but went with them and that the appellants confronted them when they went near anal that at that time too the bullocks were with them. The evidence of Wali Mohammed and Taj Mohammed supports the evidence of this witness. Wali Mohammed has stated that he and Taj Mohammed were going to "Sindh dhoro" to took after the fishing there, and when they were near Mari village, they heard cries and an looking up they saw four persons, giving blows to Khair Mohammed and deceased Gul Mohammad. According to him Khamiso (since acquitted) and appellant Klanan had hatchets and Sodho (since acquitted) and appellant Suleiman has lathis with them. The witness has stated that he found the bullocks at one place and the cart at another. He has further stated ‑that after the culprits left, both khair Mohammed and the deceased who were in senses, informed them that when they were returning with the fire‑wood they had collected, they found the appellants and the other two taking away their bullocks and on being challenged, they assaulted them with the weapons they had. In cross‑examination, the witness has stated that Suleiman was wearing a sweater. He has also stated that he saw two bundles of faggots lying there. The witness has stated that he does not know Sawan cousin of Khanan appellant. He has also stated that he does not know if any Sawan had abducted the wife of Gulu Mirbahar. This witness stands corroborated by the first information report in which he has, given all the details of the incident. The evidence of Taj Mohammed is practically similar to that of Wali Mohammad. The learned Judge has however not takers into consideration the evidence' of these witnesses namely Wali Mohammad and Taj Mohammed as according to him they are chance witnesses. The reason given ty them for being at the scene about tlse time of the occurrence did not appeal to him. But at the same time in the latter part of his judgment on page 83 at line 301, the learned Judge while dealing with evidence of khair Mohammad on the point of, injury to appellant Khanan has referred to the evidence of these witnesses and said that their evidence corroborates the evidence of Khair Mohammad. He has also referred to the first information report lodged by Wali Mohammed where this fact of injury on Khanan was mentioned. It seems to us that in the earlier part of his judgment where the learned Judge says that he does not propose to take into consideration the evidence of Wali Mohammed and Taj Mohammed he means to say that he does not 'accept that part of their evidence in which they claim to be eye‑witnesses .of the incident. And when he refers to their evidence in the latter part of the judgment as corroborating the evidence of Khair Mohammad he treats their evidence' not as that of an eye‑witness but of witnesses who arrived at the scene after the incident and whose source of knowledge about the .incident was not their eyes but the statement made to them by witness Khair Mohammed and deceased Gul Mohammed. This appears to be the only explanation for this self‑contradictory view which the learned Judge has taken of the evidence of these witnesses. The learned Judge has relied upon their evidence about the injury on the person of Khanan and according to us rightly, as corroborating the evidence of Khair Mohammed. Khatr Mohammed has stated that in the encounter deceased Gul Mohammed had dealt a blow with a laths to appellant Khanan. Wali Mohammad and Taj Mohammad have stated that Khair Mohammad had told them that the deceased had given a lathi blow to the appellant Khanan. This statement of Khair Mohammad was confirmed when the Sub‑Inspector visited the landhi of Nurali Shah, for there the S. I. found Khanan lying with an injury on his head. He had actually prepared a mashirnama of the injury, and thereafter had sent him to the medical officer Ghouspur for examination asd treatment. Dr. Akram Hussain who treated Khanan has deposed that he had a contusion scalp deep over the left parietal region, and according to him injury could have been caused with a hard blunt substance such as a lathi. The version of appellant Khanan about this injury given by him for the first time in the Sessions Court, that he had received it as a result of a fall from a tree, besides being belated stands unsubstantiated. Not even a question was put to the medical officer suggesting that this injury could be a result of a fall from a tree. It is strange that although he had fallen from a tree, he suffered only a contusion on the left parietal region and no other pert of the body. We therefore agree with the learned Judge when he says that . the injury on the person of Khanan corroborates the evidence of Khair Muhammad. We find a mention of this injury in the first information report lodged by Wali Muhammad and it is to be borne in mind that this was long before Khanan was arrested. The other piece of evidence relied upon by the learned Judge as against appellant Khanan is the recovery of a blood‑stained shirt which the appellant was wearing when he was arrested by the police. The report of the chemical analyser shows that this shirt was stained with ‑human blood. The appellant disowns this shirt. The above evidence, in oar opinion, completely establishes the charge that the appellant Khanan participated in the incident in which Khair Muhammad and his son deceased Gul Muhammad received injuries. As against appellant Suleiman there is also the evidence of the recovery of a blood‑stained sweater which he was wearing when he was arrested. This sweater was sent to the Chemical Analyser whose report shows that there were stains of human blood on it. Like Khanan this appellant also disowns the sweater. There is ample evidence of reliable witnesses on record to prove that the sweater was recovered from the person of the appellant Suleiman. The appellant does not allege anything against mashir Mir Mohammed, who has stated on solemn affirmation that this sweater was on the person of the appellant and that it was recovered by the police in his presence. In addition to this, the prosecution have relied upon the evidence of recovery of a lathi which the appellant took out from a hedge at the back of his house and produced before the police in the presence of the mashirs. The Chemical Analyser to whom this lathi was sent found blood stains on it, but as the blood had disintegrated, its origin could not be determined. We are therefore satisfied that the appellants Khanan and Suleiman have been rightly held guilty of having caused injuries to Gul Mohammed and Khair Mohammed as the result of which the former died and the latter grievously hurt, and of the offence of having committed that of the two bullocks belonging to Khair Mohammad. The question is what offence have they, committed. In the Court, Khair Mohammed has stated that the appellants did not let go the bullocks even after they were asked to do so and instead, they turned round and assaulted them. But in the first information report, this witness has stated that the culprits, on being asked to release the bullocks, left them and starting running away and that when they went near them they turned round and assaulted them. On the basis of this statement, the learned counsel for the appellant argued that the primary intention of the appellants was not to kill but to commit theft and that the injuries were caused by them when they found them selves being overtaken by the complainant and his son. It was therefore contended that the death of Gul Mohammad was not caused in furtherance of their common intention and that at the most common intention to cause grievous hurt can be inferred from the above circumstances. We find no hesitation in repelling this contention. Both the appellants set out to commit a criminal act namely theft of bullocks. Both were armed with weapons, one with a hatchet and the other with a lathi. The use of both the weapons must there fore be deemed to have been contemplated. Indeed the evidence shows that both the weapons were used. The injury caused with the lathis (which was on the head) was found to be individually sufficient to cause death of Gul Mohammad. The medical officer is further of the opinion that all the injuries were collectively sufficient to cause his death. If A and B act in concert and do a criminal act, it makes A liable for all the acts done by him and by B. It is not necessary for making A liable for the acts done by B that it must be proved that act done by B was intended to be committed by both. It will be A sufficient for the prosecution to prove that what B did was done in furtherance of the common intention of both, although his act may be different from that intended. All that the prosecution have to establish is that the criminal act of B was in furtherance of the criminal act intended by both. The case of R. V. Appleby ((1940)28 Cr. App rep. 1) is more or less on par with the present case. Apple by and Ostler were surprised by police officers while committing house‑breaking, They tried to escape but were overtaken. A shot fired by Ostler killed a police officer. It was held that both were guilty of murder. Section 34, in our opinion does not punish conspirators only for the commission of the act jointly intended but also for the criminal acts actually done provided of course the latter are done in furtherance of the criminal act jointly intended. It is also not necessary for the application of Section 34 that the criminal act jointly intended must be committed. There may be cases where the criminal act jointly intended is not committed although other criminal acts in futherance of the jointly intended act are committed. The culprits would still be liable for these criminal acts although the purpose for which these acts are committed is not achieved. In our opinion therefore both the appellants are liable for committing murder of Gul Mohammad and causing grievous and simple hurt the former with a sharp weapon and the latter with a blunt weapon to Khair Mohammed. We therefore maintain their conviction under sections 379 and 302/34, 326/.4 and 323/34, P. P. C. We also maintain the sentences imposed upon them under section 379, 326/34 and 323/34, P. P. C. As for the sentence under section 302/34 we are of the view that in view of the circumstances of the case, sentence of transport ation for life will meet the ends of justice. With this modification in the judgment we dismiss the appeal. S. B. Appeal dismissed.