P L D 1963 Supreme Court 109 (PLP)

It must be inferred, with regret, that the entire crowd was prosecuted on charges of several non‑bailable offences, by way of an exaggerated reaction to the murder of a Police Officer. It was even physically impossible for 53 persons to have beaten a single person with hand‑weapons, at the same time, and all the indications are that the total of twenty blows took no more time than, say, a couple or three minutes. Active part in the assault on the policemen was taken by only ten persons, whose names were known from the outset. It was a simple matter to have framed charges which would specify the offences arising out of these actions, and the beneficial result would have followed that some 42 persons would not have been dragged through the investigation, the commitment proceedings and the trial, which lasted for a period covering almost a year. It is a relief to note that 43 of the accused persons had been granted bail at some stage prior to the commencement of the trial. The consequence of such a widening of the sphere or accusation on allegations which are comparatively limited in scope ordinarily is to create doubt in the mind of the Court as to the truth of the entire prosecution case. Something of the kind appears clearly in this case. The murder was committed in broad day‑light. All the circumstances which led to the gathering of the different sets of persons including the Police Officers on the scene had been brought out in full detail. There are no less than 6 eye‑witnesses, two of them Police‑officers, and one of them a man with 11 injuries to prove his presence on the spot, besides Muhammad Hayat, a respectable landowner from the village, Kalu a mere tenant with no axe to grind in the dispute, Muhammad Bashir, a lambardar from a different village, and Muhammad Siddiq a refugee settler in the village, also with no purposes of his own to serve. All of them as well as Khuda Bakhsh gave clear evidence in full detail. Two of the five convicted persons (besides some other accused) had also, during the investigation, produced material objects namely, the Thanedar's revolver by Sher Muhammad accused, and a vahola by Jiwan accused, which objects were available as supporting circumstantial evidence against them. The learned Judges in the High Court have not found it possible to believe any of this evidence for the purpose of upholding any of the convictions. The reasons which weighed with them will be considered in detail immediately, but it is possible to see that the exaggeration of the number of persons accused on the charges preferred has not failed to create an impression on their minds. The judgment of the learned Judges of the High Court shows that they were not impressed by the evidence as to the delivery of the possession of his portion of the partitioned shamilat to Haji Feroz Khan Tiwana, but at the same time, they accepted the receipt Exh DJ as proving that Zawar Hussain Shah and Husain Shah had attorned to Haji Feroz Khan Tiwana, in respect of field No. 7954. That could only be if by that time Haji Feroz Khan Tiwana had received possession of that land in the capacity of landlord, and this is what the patwari had stated. The land, as stated already, is in a desert area, and not cultivated regularly, but whether the possession which was given to the new proprietor was in symbolic form only or was actual possession, the necessity from the prosecution view‑point is satisfied by the document Exh. DJ. It makes no difference to the case that Khuda Bakhsh in his evidence tried to avoid accepting the effect of this document, although he admitted having executed it. The learned Judges have emphasised the actions of the Thanedar towards the Syeds which had been the subject of complaint by them, and the final action of the Deputy Superin tendent of Police, warning the Thanedar not to interfere with possession, as if these served to indicate a determination on the part of the Thanedar to deliver possession to the Tiwana proprietor. Some observations have already been made regarding the position of a Thanedar in relation to the execution of legal orders on the revenue side, and the opinion which we have formed is that at least in respect of field No. 7954, the Thanedar had no occasion to interfere with the possession at all, since it was already with the Tiwana proprietor. The learned Judges have emphasised that the Thanedar knew that there was a stay order, but that was irrelevant in respect of field No. 7954. They have accepted the evidence as to the incident, namely, that Thanedar ordered Kalu and Jiwan to stand aside and then galloping towards the opposite group shouted out an order of arrest. They have asked why, if the Thanedar was there merely to save the peace, he did not instead arrest Kalu and Jiwan (who had done nothing to justify such action) and they have gone on to declare that the Thanedar's order for the arrest of the opponents was an illegal one, and further that if Zawar Hussain Shah and Husain Shah were in possession then they had a right of private defence of their property. It seems to us that to draw the conclusion, on the facts proved' in this case, that there was anything in the nature of arrest of any person by the Thanedar is entirely impossible. The law as to arrest is perfectly clear. Merely to shout to one or more persons that one arrests them is not in fact a legal arrest. Here, there were more than 50 persons, many carrying visible weapons. The Thanedar was accompanied by only two constables, both of them unarmed, and he himself had only a revolver. He was still at a distance from the group when he shouted out to them "I arrest you." He had not touched any one of them nor had he asked any of his subordinates to touch any of them. He seems to have put on a brave front, in unpropitious circumstances, when he used a loud and threatening tone to call out that the whole crowd was under arrest. But until they or any of them was placed in immediate danger of restraint at the minimum level necessary for an arrest, no question could arise in law of the exercise of the right of private. defence against the Thanedar. His cry "I arrest you" was merely a signal for the group, who greatly out‑numbered him and his two constables, to launch an attack upon him, and they did so not to escape from, or to avoid, unlaw ful arrest, but for a reason which appears from the initial report itself, namely, through resentment on account of the trouble they had experienced at his hands in earlier proceedings. When a person pleads the use of force in self‑defence against unlawful arrest, he must show that he was in immediate apprehension of actual arrest in the form required by law, namely, by restraint upon his person, and it is clear that not one of the party which was facing the Thanedar was in any such condition of apprehension when the attack was launched. The learned Judges have proceeded to consider the evidence of the witnesses and have come to the conclusion that with the exception of Sher Zaman, all the rest are interested witnesses. They have next scrutinized the evidence of these witnesses in detail and have found flaws which may be summarised as below : ‑ (1) that although all the witnesses with the exception of Siddiq ascribed specific blows to Ashiq Hussain with the barchha or sang, and Jiwan Lohar, with a vahola, yet these blows were not mentioned by them in their statements to the Police ; (2) that there is doubt whether the deceased had not actually drawn his revolver and was about to fire with it when he was prevented by a blow on his trigger finger ; that is not admitted by the prosecution witnesses, but is supported by the fact that the right index finger of the Thanedar was found fractured and the trigger of the revolver was found to be broken ; there fore the story that Shera snatched the revolver and the holster from the deceased after he had fallen was untrue ; and even if Shera did take the revolver, his action merely amounted to theft ; (3) that in the earlier statements, it was said that the whole body of 53 persons attacked the Police, but later the number was confined to 11, and this was done because there was only a small number of injuries to account for ; (4) that Sher Zaman's account of the attack upon him is falsified by the absence of any punctured wound such as might have been caused by a barchha and the discovery of only a skin‑deep incised wound on his face to account for a hatchet carried by Dabir Shah; (5) that while Sher Zaman before the Police said he could only identify 19 of the accused persons who were known to him, at the identification parade he picked out no less than 33, yet he failed to pick out one of his own alleged assailants Chiragh Shah, a man whom he had not named as an assailant before the Committing Magistrate ; and (6) that there is dircrepancy as to the number of persons from among the accused who were present on the spot when Kalu and Jiwan first went to plough the land. The principal fault which the learned Judges have found in the evidence is that the witnesses are interested. It is true that in the average murder case from the rural areas, a major com plication in the evaluation of the evidence is generally introduced by the difficulty of obtaining persons to testify against the accused other than those who are in ties of relationship with the com plainant or have a personal animus against the accused. The Courts whose duty it is to adopt careful principles for the safe dispensation of Justice act with perfect propriety when they scru tinize the evidence of persons falling in this category with care, and require corroboration from independent sources before they accept such evidence as sufficient to establish, beyond reasonable doubt, that the accused person is guilty of a capital offence. But this is a case where it seems that the caution has been, extended to the length of finding interest when none exists. Here, the deceased person is a Thanedar who in the exigencies of the public service held "a little brief authority" in the area of Thana Nurpur. With his death, that authority came to an end, and it may well be completely true to say that in that area, after he had been killed, there was left "none so poor to do him reverence". At any rate, it is literally out of the question that among the residents of that area, there should be found any one who would undertake the risks involved in giving evidence in a case of a capital offence against any other resident of the area, much less against 53 residents of that area, merely out of regard for the deceased Sub‑Inspector. He did not belong to that area. It is not known to what area he belonged. The appellant in this case; who is his sister has given an address in Lahore, and judging by that and by the fact that he was a graduate, one may well con clude that he belonged to the urban classes. It should have been present to the minds of the learned Judges that, official influence apart, after the death of Sheikh Hamid Asghar, while serving as Sub‑Inspector in Nurpur Thana, it was impossible to find among the residents of the area any person who would belong to the first category of interested witnesses that we have described above, namely, those whose relationship with him or his family would oblige them or induce them to depose falsely in order to secure retribution in forms of law. That witnesses have been found from the locality is probably due to the presence on the spot of two other Police‑men, one of whom was injured in the affair, apart from which, as we have already remarked, the occasion for the collection of these persons on the spot has been fully explained by the evidence of incidents earlier that morning. It is not that the learned Judges say that any of the eye‑witnesses produced is a false witness, that is, that he was not present on the spot al all. Having been taken through their evidence, and having appreciated the entire set of circumstances involved, we entertain no doubt whatsoever that each of the eye‑witnesses produced in this case is a true witness of the occurrence. The next point which in our opinion is a proper point to emphasise, is that the only possible influence which could work for the manupulation of evidence in order to secure a conviction in the case, and which therefore should be looked for by a Court concerned to distinguish the false from the true, is the influence of the local Police authorities. Nothing has been brought or the record to indicate that the Police authorities did anything our of the way in regard to the production of evidence. It seem; that they did pursue a vastly larger number of accused person; in the case than, on a true appreciation ;of the crime, they could by law be permitted to do, and we have already remarked on the unfortunate impression which this action has created. Butt here is a conspicuous absence in the lengthy cross‑examination of witnesses of anything to show that those of them who were not Police officials were in any way obliged or pressed to depose in the case. For instance, to the maker of the initial report and a principal eye‑witness, Muhammad Hayat, the only suggestion of an ulterior reason for his deposing in the case that was made was that he had been "selected as the person for lodging the F. I. R. on account of (my) qualifications as a clever person due to (my) experience as an Octroi Moharrir for 12 years". No suggestion was made as to who made the selection or when. There was no time available for making a choice of this kind, and on the other band Muhammad Hayat has made a full statement under intensive cross‑examination, as to the circumstances Aitch led to his going to the Thana early on the morning of the 23rd August 1958. His evidence has the support of Muhammad Sher, who is a lambardar of another village, some five kos (=7 miles) from Nurpur, and who could hardly have been procured from that distance within the time available before the report was lodged. Khuda Bakhsh, the agent of the Tiwana landlord had the best of reasons for being present. One of the persons whom he had brought to cultivate the land, namely Kalu has given evidence as P. W. 30, and another private witness was Muhammad Siddiq P. W. 31, a respectable refugee resident of the village, whose presence on the spot is attested by the other witnesses and is mentioned in the initial report. With the exception of Muhammad Sher, these private witnesses are residents of Nurpur and would naturally know all the accused persons. It might have been said concerning Siddiq who had no personal reason of his own to go to the spot that he was procured through Police influence, but in a lengthy cross‑examination, this was in no way suggested to him. What was suggested was that he had "come forward as a false witness because there is party friction in Nurpur between two parties one of which is that of locals like the accused who do not give batai to the allottees of evacuee land and the other of the refugees allottees like me and my relatives, and some of the accused are in possession of land allotted to me and my relatives but do not pay us any rent". The effort of the defence through out was to depict the attack as a part of the dispute over the partitioned shamilat. Thus, it was suggested that the Tiwana landlord was backing the prosecution, out of gratitude for the support given by the murdered Thanedar earlier. Cynical though it may sound, there is, in fact, no place for gratitude in the complex of motivations to which a case of the present kind gives rise. Then there are the two Police witnesses Amir Khan and Sher Zaman constables, who were with the deceased on duty and are, prima facie, disinterested. Sher Zaman's presence is attested by his many and serious injuries. The other man was not injured and one reason has already been given, namely, that Muhammad Hayat and others prevented him from going forward, seeing how determined the attack on the Thanedar and Sher Zaman was turning out to be. On this point, it was sought to bring out a discrepancy from Amir Khan having said elsewhere that he was left behind because his horse was slower than the others, but even if that be true, it does not prevent him from being one of the party and capable of seeing the attack on the Thanedar and Sher Zaman. Amir Khan has however been found by the learned Judges to be an "interested" witness for this reason, namely, that on the day before the occurrence, the respondent Ashiq Hussain had appeared before the Deputy Superintendent of Police and com plained against Amir Khan that he had slapped his son Munir and a woman Mst. Janta, wife of Ramzan another accused person,) had said that she had been insulted by Amir Khan. If the case had been against Ashiq Hussain and Ramzan alone, it would no doubt be necessary to consider Amir Khan as an interested person who required corroboration in order to be believed. But the circumstances here are wholly different, and have nothing whatsoever to do with the earlier behaviour of Amir Khan. Moreover, Amir Khan is not the solitary witness regard ing the presence of 50 or 60 persons on the side of thel accused so that as to the involvement of others besides) Ashiq Hussain and Ramzan, his evidence cannot be thought to be tainted with interest, and as to these two personal it receives support from sources independent of himself. It is' impossible to eliminate his evidence on the ground of interest. With reference to Muhammad Hayat, the learned Judges have found that his "interest" lies firstly in the fact that some of the land which had fallen to his share in the partition of the shamilat of Nurpur was in the possession of some of the accused persons ; secondly, that Muhammad Hayat's father was once suspected of having a hand in the theft of cattle belonging to Mulazim Hussain accused, and thirdly, that he was once bound over to keep the peace against another accused person named Ghulam Rasul. It has been seen that the immediate cause of the trouble was Khuda Bakhsh's attempt to replace the nau‑tor occupants Zawar Husain Shah and Husain Shah by two amenable persons Kalu and Jiwan in field No. 7954, and that the Syeds were interested to maintain their position in view of their pending application for setting aside the partition. We cannot see that the mere fact of Muhammad Hayat being one of a great number of persons who had become separate owners of parts of the previously undivided shamilat could give him an interest to depose falsely against so many of his co‑villagers in a case where the injured party was no relation or even friend of his. The other two incidents are clearly of a minor nature, and in any case affect only two out of 53 accused persons, and therefore do not have the effect of casting a doubt upon the whole of Muhammad Hayat's evidence. The "interest" found in the case of Muhammad Bashir lambardar is confined to his having received a share in the partition of the shamilat, of which about half is in the possession of one of the accused persons Ghulam Muhammad. We find it quite impossible to see how this circum stance can, by itself, render Muhammad Bashir an "interested" and therefore unreliable witness as against the entire set of 53 accused persons. The part played by Ghulam Muhammad accused in the affair is totally insignificant. Khuda Bakhsh is said to be interested because he is kardar of Haji Feroz Khan Tiwana and Kalu because he was the new tenant. Such a conclu sion could only be reached if the assault on the Thanedar and Sher Zaman be treated as a battle between the new proprietors of the shamilat on the one side and of the tenants in the village on the other. We note with regret (and we say so with respect) that some such idea has coloured the approach of the learned Judges in the present case. On the facts, the conflict arose out of and was confined to a very small incident, viz., the induction of two controllable tenants into a piece of land which was already in the possession of Haji Feroz Khan Tiwana, at the cost of two of the nau‑tor occupants, and secondly, the plainly tactless and over‑bearing intervention of the Thanedar, which though intended to disperse the group of tenants was taken by them as the last straw in a long series of "oppressions" and resulted in an immediate attack upon him. Clearly, the killing of the Thanedar was not sufficient to restore to the ousted tenants from the shamilat their previous rights and in fact, such an action on their part was calculated to impede the efforts they were making with the Revenue Authorities to regain those rights. Therefore, to regard the Thanedar's behaviour and the re‑action thereto of the tenants as acts in continuation of the strife between the tenants and the new proprietors is clearly to misconceive the situation. It is only under such a misconception that Khuda Bakhsh and Kalu could be treated as persons who were "interested" to get some or all of the tenants who were opposing the new proprietors falsely convicted for the murder of the Thanedar. The point appears to have been overlooked that these two persons are residents of the village, and their interest is in the main to keep on good terms with their living neighbours rather than with the dead Thanedar. The last private witness Muhammad Siddiq has been thought to be "interested" because certain land allotted to him as a refugee in village Nurpur is in the possession of Akbar Zaman Shah accused and he was thought to be a liar because he denied that there had been trouble between the refugee allottees and the local tenants over the possession of the evacuee land. These circumstances are quite insufficient to make him an "interested" witness against any of the accused persons. When properly examined in the light of the real circum stances, it is clear that none of the eye‑witnesses in this case can at all be regarded as an interested witness qua the securing of convictions for the murder of the deceased Thanedar. As to Sher Zaman whose evidence is precisely in line with the other eye‑witnesses, the learned Judges found him to be free of any kind of animus. The evidence of these seven persons which is in all essential points consistent was sufficient by itself to establish the main features of the prosecution case. The criticism that details of the parts taken by particular persons in the assault on the Thanedar were furnished at a somewhat late stage is not by itself sufficient to throw the cloud of disbelief over their whole evidence. The names of those who surrounded the Thanedar and joined in the attack on him were supplied in the first instance, and the omission by the Police investigator to obtain exact details from each witness examined by him as to the part played by each of these accused persons is clearly not sufficient to negative that primary fact. Other significant detail; in the initial report are (1) that the single spear in the crow (was carried by Ashiq Hussain (2) that the single vahola was carried by Jiwan and (3) that Akbar Zaman was among those who had a lathi. Therefore, when for the first time before the committing Magistrate, the witnesses gave details of blows by these persons with their respective weapons to the Thanedar; although they may have been going beyond what they had said at the earlier stage, yet they cannot be charged with baseless invention at any rate. The learned Judges have found a serious discrepancy with regard to the stage in the handling of the revolver by the Thanedar at which the weapon was knocked out of his hand. Here, the only question is whether he was about to fire with it, or had he only just got his hand on it and was about to draw it out from the holster: when the blow was struck. The point is wholly insignificant and cannot reflect back upon the veracity of the witnesses in the manner found by the learned Judges. There is no reason whatsoever to doubt that the revolver with the holster and bandolier were removed at the same time and in the same action. The evidence is entirely consistent on this point, and the witnesses have also agreed that the action of removal followed immediately upon the fall of the Thanedar from his horse. There is no indication that the Thanedar had aimed the revolver to shoot, before it was knocked out of his hand, and after that had happened, he was incapable of causing injury to any of the assembly. The learned Judges purport to find a discrepancy in the fact that at one stage the attack on the Police officers was said to be by 50 or 60 persons and at a later stage only by eleven. It is perfectly plain that there is no discrepancy whatsoever on this point. Reading the evidence with the initial report it is clear that the earlier account that the whole crowd "attacked" the Thanedar was in the nature of a "sweeping statement", capable of being readily discounted. The defect found in Sher Zaman's account of the attack upon him self by reference to the smallness of the injuries caused allegedly by heavy weapons is again illusory. No man when attacked with a heavy weapon stands firmly to receive it with the maximum of force. The slight evasive action which is a natural reaction by a person under attack is often sufficient to eliminate most of the force behind a blow. That Sher Zaman was able to identify 33 persons at the parade when he knew no more than 19 merely shows that the remaining 14 were identified upon his recollection of their features, and that is the main purpose of an identification parade. As to the number of the' persons present when Kalu and Jiwan went out to plough the land, reference to the evidence of the witness Muhammad Siddiq would have provided the learned Judges with a full explanation on this point. The group of the accused persons, he said, started with three men, Ashiq Husain, Husain Shah and Inayat Shah, with whom he had some conversation, and in the meantime further groups of from 5 to 15 persons began to collect on the spot, till there were as many as 50 or

60. The differences found on this point by the learned Judges were described as "not unimportant". In fact, there was no difference of any significance at all. When scrutinized against the record and the proved circum stances, the difficulties which the learned Judges found in accepting the evidence of the eye‑witnesses appear clearly to be unsubstantial. Towards the conclusion of their judgment, the learned Judges have observed, on the strength of their finding that all the eye‑witnesses except Sher Zaman were "interested" witnesses and that the evidence of Sher Zaman as well as all the others was defective in points of details, that it would be "highly dangerous to convict any of the appellants solely on the strength of specific parts ascribed to them." They have supported this opinion by reference to two recent pronouncements of this Court in the cases of Rahmat v. The State P L D 1959 S C (Pak) 109 and Niaz v. The State P L D 1960 S C (Pak.) 387 and the citation indicates that, speakin3 with due respect, the learned Judges have not borne in mind the principal which con sideration governs the use of the decision in one case as guidance in another. Everything said by this Court in a judgment, and more particularly, in a judgment in a criminal case, must be under stood with great particularity as having been said with reference to the facts of that particular case. The first case, that of Rahmat, arose out of a murderous attack at night, with fires‑arms, in which two persons were killed at the places where they had been sleeping and a third person at a place about 800 feet away. There had been convictions which had been confirmed by the High Court in appeal, but on careful examination of the whole case, this Court found that the case was subject to a number of general doubts arising out of the following circumstances, viz.: ‑ (1) The attack was made for the purpose of abducting a woman, Mst. Rajan, and she was not abducted but survived to give evidence of the entire occurrence, the explanation being that she had herself escaped from her murdered husband's bed to a bush just before the assailants arrived; (2) Mst. Rajan had been abducted earlier and every person connected with that abduction had been cited as an assailant; (3) the condition of the dead bodies established that the victims were immobile on their beds when killed, and this conflicted with the entire story as to the escape of Mst. Rajan and the presence of the other witnesses at the well ; and (4) it was admitted that in the initial report, one name had been given falsely, so that the possibility of general false implication became clear. The accusation had been made against a larger number of persons than the learned Judges in the High Court had found it possible to convict, and they had selected persons for conviction on the basis that specific acts had been attributed to them by the eye witnesses. It was in these circumstances that this Court observed as follows: ‑ "Where the entire case rests on ocular evidence, which is subject to (such) general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye‑witnesses fix specific parts in the accomplishment of the crime." This simple analysis will suffice to show that as between the case of Rehmat and the present case, there is not to be found the very slightest degree of similarity. In the case of Niaz again, the murder was committed at night, and the eye‑witnesses produced were two brothers of the deceased and an uncle of theirs. The charge was made against five persons, who were two sets of brothers, being cousins inter se. The only corroboration of the three eye‑witnesses that was available was from the mouth of a lambardar, who at the trial for the first time had made the extraordinary admission that in the first instance, only two names had been mentioned to him by the eye witnesses as the murderers, but on the way to the thana, the other three names were added. Hostility between the family of the murdered persons and that of the accused persons was the cause of the attack, and their being clear proof of false implica tion from the outset, a general doubt was cast over the truth of the accusation against any of the accused. No value could possibly attach to the evidence of an interested witness in such a case, merely by reason of his deposing to a specific act, e.g. a blow, or the use of a particular weapon, by a particular accused person, for the purpose of fixing responsibility upon him in a criminal case. It is clear beyond question that the circumstances of the case of Niaz were so wholly different from those of the present case that nothing said of a general nature regarding the evaluation of the statements of witnesses in Niaz's case can con ceivably be relevant to the appreciation of the evidence in the present case. We are satisfied that the conclusion reached by the learned Judges regarding the credibility of the evidence led by the prosecu tion cannot be sustained. The only plea on fact raised by the defence was on behalf of Husain Shah, who said the Thanedar had come with two men named Abdul Rehman and Ramzan to get field No. 7954 ploughed, in the interest of the Tiwana land lord, and he himself had pleaded with him to desist, but he became abusive, and persons in the crowd of 100 became enraged, and some from among them belaboured him as well as Sher Zaman. All the accused persons pleaded false implication, but no defence evidence was produced. The view which we take, after a careful examination of the evidence and all the circumstances, is evident from what we have already said, namely that, accepting the evidence of the eye witnesses, the criminal actions in this case are confined on the evidence to the ten persons who jointly assaulted and brought down the Thanedar; and one additional person Sheru who remov ed his holster and revolver immediately as he fell off his horse. Three or four of these persons assaulted Sher Zaman constable as well. The first question which arises is whether a charge of a unlawful assembly can be sustained, or whether in the alternative it should be considered as an action performed on the spur o the moment by several persons in furtherance of a common intention. There is no charge that the accused persons were collected) with the object of preventing Kalu and Jiwan from ploughing the land in field No. 7954, and as has been said, it is doubtful whether such a charge could have been framed. But it is clear that it was not part of the intention of the assembly when it was' formed to kill the Thanedar or wound Sher Zaman. It is difficult to find that they gathered there with the common object of overowing any public servant by criminal force, since the arrival of the Thanedar was not a natural concomitant of the application of the plough to the land by Kalu and Jiwan, nor can any of the other possible common objects which may render an assembly unlawful that are specified in section 141, P. P. C. be thought to be applicable. An explanation to that section states that an assembly may become unlawful at some stage after the time of assembly, but to establish such a development, it would be neces sary to prove a circumstance applicable to all the persons assem bled which influenced them all in one direction, namely, that of using criminal force or committing mischief, criminal trespass, or other offences or of resisting the execution of law or legal process. Here, it is clear that the aggressive action of the Thanedar produced an instant reaction of opposition to himself personally, but only in a small group of persons who were in the front of the assembly, and the case can be made one of unlawful assembly only if it be held that although these persons were not gathered for an unlawful purpose as defined in the section, yet in their reaction to the Thanedar's behaviour, they developed a common object, namely, to commit an offence. A joint action by a number of persons is not necessarily an action performed with a common object. It may be performed on the spur of the moment as a reaction to some incident, and such a case would fall more correctly within the rule of constructive liability laid down in section 34, P. P. C., which is based on "common inten tion", a condition of mind which is more directly and proximately connected with the action than is the formation of a common object. This may appear more clearly when it is recalled that the law makes, specific provision for dispersing an unlawful' assembly. Such an incident is not applicable to the joint-ness of action envisaged in section 34, P. P. C., which consists of translation of intention, commonly held, into effect. The persons who) have in the present case been held to have joined in a common assault on the Thanedar can be more precisely held to have acted with a common intention within the meaning of section 34, P. P. C. than in furtherance of a common object. The Judicial Committee of the Privy Council have held in the case of Mahbub Shah v. The King‑Emperor 72 1 A 148, that proof of pre‑concert is necessary in order to bring a criminal act performed by several persons within the ambit of section 34, but in a later case that of Mamand v. The King‑Emperor AIR 1946 P C 45, it was clarified that the existence of such pre concert could be established even by proof of acts performed by individuals after the completion of the main crime. Even regarding the case in the light of the requisite of pre‑concert, there seems no doubt whatsoever that such a consensus can be achieved among the participants in the crime immediately before its execu tion, e.g. where the crime is excited by some action on the part of the person against whom it is committed. This is the aspect in which we would prefer to regard this case. On the evidence, it is established that Ashiq Hussain raised the preliminary shout, Inayat Shah caught the reigns of the horse and then nine persons including Ashiq Hussain, Jiwan and Akbar Zaman joined in giving blows to the Thanedar who, being mounted on a horse, presented a clear target. An intention to kill can be directly inferred from the nature of the injuries caused, which led to his immediate death. The trial Judge had found it possible to fix Ashiq Hussain as a participant on the ground that the eye witnesses "could not possibly make a mistake about him". In fact, the witnesses said that he gave the first blow to the Thanedar, but in our opinion it is sufficient for fixing Ashiq Hussain with liability for the murder under section 34, P. P. C. that he was one of those who directly participated in the joint attack on the Thanedar. Inayat Shah was similarly held guilty by the Sessions Judge because he thought the witnesses could not be mistaken about the prominent part he played, viz. holding the horse's reins. Clearly, this was a necessary act in aid of the assault which being carried out on the Thanedar, and Inayat Shah cannot escape constructive responsibility under section 34, P. P. C. As to Jiwan, the Sessions Judge had found it possible to believe the evidence against him on the ground that he was the only person stated by the eye‑witnesses to be armed with a vahola and a blood‑stained vahola was actually recovered at his instance. The learned Judge in the High Court discounted this recovery on a number of grounds, which it is not necessary to. deal with. They also came to the conclusion that he gave only one blow which may not have been in excess of his initial right of private defence, or even a right derived from the fact that the Thanedar had a revolver in his hand. Here again, the evidence of the witnesses being worthy of acceptance and consistent, the parti cipation of Jiwan in‑a direct assault on the Thanedar is open to no manner of doubt and his liability for the murder falls under section 34, P. P. C. It is not clear from the judgment of the Sessions Judge what particular piece of evidence apart from the direct evidence of the eye‑witnesses he relied upon in convicting Akbar Zaman and the learned Judges have taken the occasion to observe that the Sessions Judge probably "convicted him through inadvertence". The evidence against Akbar Zaman does not appear to us to require any corroboration, for the reasons which we have already given. It is sufficient to say that he was one of the persons who armed with a lathi directly participated in the attack upon the Thanedar. The mere fact that a number of other persons about whom a similar conclusion can safely be reached on the same evidence have been acquitted is no ground for refusing to treat the case of Akbar Zaman Shah in accordance with the view of the evidence in the case which we have formed. Finally, there is the case of Sheru or Sher Muhammad Chohan. This man was not one of the immediate assailants, and cannot be drawn into the joint intention applicable to the latter. He appears to have emerged from the crowd to seize the oppor tunity of obtaining a "plum" among the spoils, that is, the revolver and its appendages. His act was individual, and could have been placed under one of the forms of theft or robbery, but no such charge was preferred against him. As he underwent the process of investigation and commitment, culminating in a conviction in October 1959, followed by imprisonment until his acquittal in February 1961, we do not consider it appropriate that he should now be retried for an offence against property. There was a separate charge in respect of the injuries of the constable Sher Zaman which was laid under section 307, and on the view which we have taken above, it must now be considered as a charge under section 307 read with section 34, P. P. C., and can only be sustained against those who are shown to have joined directly in causing injuries to Sher Zaman. Of the four persons whom Sher Zaman specified as his assailants, only one namely, Ashiq Hussain is a party to this appeal. His conviction on this charge by the Sessions Judge was under section 325/149, P. P. C. and the sentence was a year's rigorous imprisonment, to run concurrently with other sentences. This has already been undergone. The Sessions Judge also recorded a conviction under section 353/149, P. P. C. and imposed a sentence of two years' rigorous imprisonment thereunder, to run concurrently with the other sentences. Since the major conviction is for murder, there seems no reason to restore this conviction for obstruction to a public servant in the discharge of duty, accompanied by hurt. The result is that we dismiss this appeal as against Sheru Chohan. We allow it against Ashiq Hussain, Inayat Shah, Akbar Zaman Shah and Jiwan lohar, and in the case of each one, we restore the conviction recorded by the trial Court under section 302, P. P, C. only, read with section

34. We also restore the sentences of transportation for life awarded on the murder charge to Inayat Shah, Akbar Zaman Shah and Jiwan lohar, and in the case of Ashiq Hussain also, in view of our finding of his liability being joint with the others, we award a sentence of transportation for life. A. H. Order accordingly.