P (PLP)

Abdul Hai for Asharafuddin Chowdhury, for Appellants. M. H. Khondkar, for Crown. ELLIS, J.‑This appeal is by three appellants, Fazar Ali alias Malu, Jahur‑ud‑Din alias Chandu and Mumurdi alias Mumudi who were tried by Mr. A. Maudud, an Assistant . Sessions judge at Mymensingh and Assessors on a charge under sections 304/34 of the Pakistan Penal Code for causing the death of one Maisuddin in furtherance of their common intention. They were each con victed under section 304 Part II read with section 34 of the Penal Code and were sentenced. Fazar Ali and Jahur‑ud‑Din to rigorous imprisonment for five years each and Mamurdi to rigorous imprisonment for three years. They have now appealed to this Court against their conviction and sentences. The occurrence out of which this case has arisen took place at 11 a. m. on the morning of the 16th March, 1949 in a village Barshikura‑under the Hussenpur Police Station in the district of Mymensingh. The occurrence took place over a plot of land bearing cadastral survey plot No.

247. The plot No. 247 is divided into two parts, the western half and eastern half. The eastern half admittedly belonged to one Abdul Hamid. There was some dispute with regard to the western half which according to the prosecution case was in possession of the deceased Maisuddin and his brothers, Sukur Mamud and Shamsuddin. They are co‑sharers of Abdul Hamid who was in possession of the eastern half. There were, however, another, claimant to the western half of the plot No. 247 in the person of the appellant Ma "u who is the son of Rajdhar. Samir; himself the son' of Sukur Mamud's father's brother Rajdhar. The two other appellants Jahuruddin and Mamurdi are the sons of Rajdhar. The appellants were tried by the learned Assistant Sessions judge with the aid of three Assessors. At the conclusion of the trial one of the Assessors was of the opinion that all the three appellants were guilty under the second part of section 304 of the Pakistan Penal Code, two others found appellant Malu and Chandu guilty under that section and the third appellant Mamurdi guilty under section 304 of the Penal Code. The learned Assistant Sessions judge, however, convicted all the three under section 304 Part II read with section 34 of the Pakistan Penal Code and sentenced them as stated aforesaid. Before us Mr. Abdul Hai has appeared on behalf of the appellants and the first point that he has taken is that the learned Assistant Sessions judge is in error when he finds that the complainants' party were in possession of the disputed plot i.e., the western half of plot No.

247. In this connection he draws attention to the fact that the evidence was that of the deceased Maisuddin's brother Sukur Mamud and Shamsuddin together with the evidence of Abdul Hamid P W. 4 who lived to the west of the deceased Maisuddin, the evidence of Faloo, P. W, 6 a day labourer and the evidence of one Kasem Ali a man of 18 or 19 years of age. Mr. Abdul Hai claims that the learned Assistant Sessions judge is in error when he relies upon the evidence of Abdul Hamid and of Kasem Ali as being the evidence of disinterested witnesses. He points, out that in cross‑examination Abdul Hamid admitted that he was an accused in a case instituted by Samir some 2 or 3 months before the occurrence which forms the subject‑matter of this case and P. W. 7 Kasem Ali similarly admitted that be himself was one of the second party in a pro ceeding instituted by Samir under section 107 of the Code of Criminal Procedure against Sukur Mamud, Shamsuddin and others. Mr. Abdul Hai accordingly asks as not to rely upon the evidence of these witnesses as being the evidence of disinterested persons. It is true that in this case the evidence is that of persons who are related inter se. That of course is inevitable because, as we have already pointed out, the protagonists on both sides are inter‑related. So far as the witnesses are concerned there is however, the evidence of Faloo who was examined as day labourer. He was not 'connected with either side and the only thing that Mr. Abdul Hai can urge against him is that he is a person of no status being a day labourer. We do not think, however, that this effects his credibility as a witness. Mr. Abdul Hai further point out that acceding to the sketch map prepared by the investigating Police Officer there are houses of other persons situated at a greater or less distance from the place of occurrence and these persons ought to have been examined as being persons in a position to give evidence with regard to the possession of the disputed portion of plot No.

247. It is true that the sketch map does show the houses of other persons but on a scrutiny of the evidence in this case nothing has transpired to show who are the other persons who live in these particular houses and whether they are or not in a position to give material evidence in support of the case. In these circumstances, on a scrutiny of the evidence that has been adduced on the side of the prosecution and that‑ which .has been adduced for the defence, we see no reason at all to differ from the decision of the learned Assistant Sessions judge in his finding that on the day of occurrence the disputed land was in possession of the deceased Maisuddin and his brothers Sukur Mamud and Shamsuddin. The next point that has been taken by Mr. Abdul Hai challenges section 34 of the Pakistan Penal Code and its application to section 304 Part 'II of the said Code. It has been argued by‑ Mr. Abdul Hai that section 34 cannot possibly be conjoined with the second part of the section 304. of the Penal Code. Mr. Abdul Hai of course follows the observation of Mr. Justice Das in a well‑known case of Ibra Ahanda and others v. Emperor reported in 48 C. W. N. 366 where His Lordship observed : "the `common intention' referred to in section 34 is an intention, shared by all the offenders, to commit the offence actually committed. The section cannot therefore apply to offences of which intention is not an ingredient at all. Accordingly, sec tion 34 cannot be applied to the offence punishable under the second part of section 304 expressly excludes intention." The opposite view was taken by Mr. Justice Lodge in same case where His Lordship was of opinion that "The words' in furtherance of the common intention of all" in section 34 do not require that in order that the section may apply, all participants in the joint act must either have the common intention of committing, the same offence or the common intention of producing the ‑same result by their joint act. It is enough if all of them intend that the joint act be performed. Section 34 can therefore be applied to cases of culpable homicide punishable under the second part of section 304." This. Court following with respect the opinion of Mr. Justice Lodge in the case under report has also held in a decision in which one of us was a party that section 34 can legally be applied to a conviction under‑the second part of section

304. The next point taken by Mr. Abdul Hai is that on the facts of this particular case, section 34 cannot possibly be applied, because there is no evidence either direct or circumstantial of any pre‑arranged plan on the part of the accused to kill Maisuddin. Mr. Abdul Hai further urges that section 34 can have no application to the third appellant inasmuch as he was armed only with a lathi. The facts of the case are that on the date of occurrence, that is, on the 16th of March, 1949, the three appellants came to plough the western half of plot No. 247 and with them they carried Holonga and lathis. It happened that Maisuddin had previously ploughed up the plot No. 247 two or three days prior to the date of occurrence and had sown jute seeds thereon. Accordingly when the appellants and Samir went under arms and entered upon the plot and began to plough it Maisuddin went there and protested and thereafter words were interchanged between the parties. The appellant Malu stopped ploughing, took a Holonga from the hand of the appellant Chandu and with it pierced Maisuddin on the right side. Maisuddin fell down whereupon Chandu attacked him with another Holonga. Sukur Mamud and Shamsuddin came to the help of their brother, caught hold of him and tried to hold him up whereupon they were indiscriminately assaulted by the other members of accused party and in the course of that assault the third appellant Mamurdi used his lathi. Hearing the disturbances other persons came to the scene of the occurrence whereupon the appellants' party left for home. We are of opinion that the facts of this case certainly fall within the scope of section 34 of the Pakistan Penal Code following the principles which were laid down in the well‑known case of the King‑Emperor v. Babendra Kumar Ghose reported in 26 C. W. N. 17C ; and that case would also be an authority for the proposition that although he was only armed with a lathi the third appellant similarly falls within the mischief of the section. The next point taken by Mr. Abdul Hai touches on the use that was made in this case of the first information report. After the occurrence Maisuddin was taken to the police station and at 18 hours on the 16th March, 1949, he lodged the first information report. His condition was serious and he was, sent to hospital where he was admitted at 4 a. m on the 17th March, 1949. He died at 12‑45 p. m. on the 17th March 1949, and the post‑mortem examination on his dead body was conducted by the Medical Officer Mr. S. N. Ahmed at 4‑30 p. m. on the 17th ‑ March 1949. In these circumstances we do not think that any improper use was made by the Court of the first information report which obviously could be taker in evidence under the provisions of 'section 32 (1) of the Evidence Act. The last point which was taken by Mr. Abdul Hai touches the manner in which the medical evidence was brought on record under section 509 of the Code of Criminal Procedure. We have had occasion before now to draw the attention of subordinate Courts to the provisions‑of this section. The section itself provides : "The deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness." We have drawn the attention of subordinate Courts that if the Medical Officer in question is summoned as a witness in the Court of Sessions then he must be examined just as any other witness is examined in that Court and his statement in the lower Court should not be put in under section 509 of the Code of Criminal Procedure. Section 509 was not designed for, the convenience of indolent Sessions Judges but was designed in order to allow evidence given by Medical Officers to be put in at the trial in their absence. In the present case, however, the Medical Officer was cross‑examined, so no question of prejudice arises and the defect was merely one of procedure. In the circumstances we see no reason at all to interfere with the convictions of the appellants and in our opinion the sentences imposed‑upon them do not err on the side of severity. The appeal is accordingly dismissed, the convictions and sentences are maintained and the appellants will now serve out the remainder of their sentences. A. D. AHMAD, J .‑I agree. A. H. Appeal dismissed.