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Criminal Appeal No. 401 of 1966/Confirmation Case No. 6 of 1967, decided on 18th October 1967.

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---‑Motive‑Seemingly innocent remark made by deceased in interest of public safety‑Language neither objection able' nor mode of expression provocative‑Sharp reaction by accused leading to scuffle and then to murder‑‑Indicative of rather sensitively abnormal 'relations between panics‑Penal Code (XLV of 1860), S. 302.

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---‑Credibility‑Witnesses present at time of alter cation same as those present at tune of commission of offence Complainant, accused, and witnesses residing in same locality in close proximity‑No element of improbability in actual presence of witnesses on both occasions‑Possibility of several other persons' presence on both occasions‑Does not per se warrant inference of absence of witnesses or militate against their credibility.

Eye‑witness‑.Credibility‑Unconcerned witnesses not forthcoming‑Existence of party factions in locality‑Distant relationship of witnesses with murdered person‑Hardly a ground warranting outright rejection of their testimony unless good reasons otherwise warrant.

--‑Eye‑witness---Improvements and discrepancies in statements of witnesses‑Neither material nor of character warranting their rejection in toto‑Statements corroborated by medical evidence and recovery of crime weapon‑Lower Court, held, justified in placing full reliance on such testimony.

S. 302 read with S. 34‑Accused U, R, M & I, in order to wreak vengeance, waiting for deceased on road side, ah rushing at deceased's rickshaw stopped at their bidding, U dragging out deceased from rickshaw and stabbing him with dagger, I giving a stick blow to a witness who tried to rescue deceased, R calling out not to spare second deceased who arrived to save first deceased, M catching hold of second deceased and U stabbing second deceased as well ‑Held, reaching of four accused on road side in furious mood and waiting for deceased to come‑Positive proof of existence of common intention of four accused to cause death‑Application of S. 34, held, rightly invoked by trial Court.

Emperor v. Barendra Kumar Ghosh A I R 1925 P C 1; Mahbub Shah v. Emperor A I R 1945 P C 118; Safdar Ali v. Crown P L D 1953 F C 93 ; Muhammad Afsar v. Crown P L D 1954 F C 170; Lalu v. State P L D 1959 S C 258 and Chiragh Din and others v. The State P L D 1967 S C 340 ref.

Tufail Ali A. Rehman for Appellants.

Manzoor Hussain for A. A.‑G. for the State.

Dates of hearing: 3rd and 4th October 1967.

.‑‑Abdul Rashid 45 years, Murad 30 years, Muhammad Ishaque 20 years and Muhammad Umar 22 years, have filed this appeal against their conviction under section 302 read with section 34 of the Pakistan Penal Code, recorded by the Additional Sessions Judge, Karachi, vide his order dated the 16th December 1966, awarding sentence of death to Muhammad Umar and of life imprisonment to other three. The case for confirmation of the sentence of death is also before us, under section 374 of the Criminal Procedure Code.

2. The facts giving rise to the case are that on 30th June 1965, at about 7‑30 p.m. Muhammad Umar appellant came speeding his jeep on Usman Brohi Read in Sangholane, Karachi. As the jeep came near the shop of the complainant (P. W. 2) Karim Bakhsh remonstrated with Muhammad Umar on the latter's rash driving stating that children were likely to be run over. At ibis accused Umar lashed out at Karim deceased saying that the death of a child meant no better than the killing of a dog to him. From words they came to blows but were separated by Isa, Kadir and Samad P. Ws: (who incidently are also the witnesses of the next day's occurrence resulting is the death of Karim Bakhsh). However, Muhammad Umar appellant went away threatening Karim Bakhsh deceased that he would deal with him. On the next day, i.e. 1st July 1965, at about. 7‑30 a.m., Rashid appellant, who is the father of Umar appellant, brother of Murad appellant and first cousin of Ishaque (maternal- uncle's son) came accompanied by Murad to the house of his son Umar, who presumably lived separately from him, and shouted out to him saying what had he done about the husband of his mother, by which he evidently referred to Karim Bakhsh. Although there is no convincing evidence that Rashid was personally present at the time when the previous incident toot place, nor is there any direct evidence to the effect that this was' communicated to Rashid, yet it appears that Rashid was posted with the previous evening's altercation between his son Umar and Karim Bakhsh deceased. Hearing such a remark from his father Umar came out along with Ishaque who lived with him and was allegedly armed with a danda. The four appellants then stood on the Usman Brobi Road waiting for the deceased Karim Bakhsh deceased who lived in their neighbourhood in the same locality, came driving his rickshaw along with his brother Maula Bakhsh (P. W. 5) at the usual time. The appellants told him to stop the rickshaw but he did not stop in the first instance. Umar appellant abused him at which Karim stopped the rickshaw at a distance of 15 to 20 paces from them. All the four appellants then rushed towards the rickshaw and Umar appellant caught hold of the collar of Karim deceased and dragged him out of the rickshaw. Maula Bakhsh entreated them not to quarrel. Umar took out from the folds of his shalwar a Baluchi dagger. also described as chhurri, or knife and stabbed Karim Bakhsh in the chest on upper right side, who fell down profusely bleeding. Isa caught hold of Umar appellant but Ishaque gave him a stick blow which having struck the rickshaw in the first instance partly hit Isa on the back, whereupon Isa released Umar. At that moment Muhammad alias Mammi, the other deceased who was bathing his donkey at a nearby tap, having seen this came running to the spot in order to rescue Karim. Rashid called out that he (Mammi) also belonged to the party of Karim and should not be spared. At this Murad caught hold of Mammi while Umar gave him two blows with his dagger (knife) on the left side of the head and chest. Mammi collapsed and succumbed to the injuries instantaneously. The occurrence was witnessed besides Isa P. W. by Maula Bakhsh (P. W. 3), Samad (P. W. 4), Kadir (P. W. 5) and Hassan who was not produced at the trial. The four appellants then fled away from there threatening that none should dare follow them. The dead body of Mammi who had already expired, and Karim Bakhsh were removed to the hospital where the latter also expired soon thereafter. Ise (P. W. 2) lodged a report at Chawakiwarah Police Station at 8‑10 a m. which was recorded by Muhammad Ayub, S. H. O. (P. W. 14).

Doctor Major Anwar Hassan (P. W. 7) found on the person of Karim Bakhsh deceased, an ante-mortem incised wound oblique stitched 2 " x 1" x 3" deep along the front part of the right axila cutting all the blood vessels and nerves and outer border of the pectoral muscle, which could be caused by the recovered dagger P. 1, and was sufficient in the ordinary course of nature to cause death. Death, in his opinion, was caused due haemorrhage and shock as a result of the injury. On the person of Mammi deceased, the doctor found an oblique incised penetrating wound 1 x " cavity deep in front and left side of chest, half an inch outer to the left nipple; and another vertica incised wound 3 x 1" x " on left side head, 3/4" above the ear. According to the doctor the injuries could be caused by the recovered knife Article P. 1. On internal examination the scalp was found to be acchymosed under the, external injury No. 2 with a vertical cut in the temporal bone under the injury No. 1 which was directed inwards the chest wall held on the third rib, the pericardial sac, front border of the left lung and the left ventricular cavity in length covering a distance of four inches in depth was present. Injury No. 1 was found by the doctor to be sufficient to cause death in the ordinary course of nature. The cause of death in his opinion was shock and haemorrhage as a result of stab wound in the heart.

After the completion of the investigation the appellants were committed to stand their trial before the Additional Sessions Judge, Karachi, They pleaded not guilty to the charge and stated that they were being falsely implicated by the P. Ws. who were inter‑related and belonged to the opposite‑party, there being political rivalry between the two parties. Umar appellant took the plea that at the relevant time he was present on a tailor shop in Re‑xar Lane and it was 11‑30 a.m. when his younger brother told him that his father and uncle had been arrested by the police He then approached one Haji‑ Dad Muhammad who produced him before the S. H. O. when be was arrested He denied the ownership or the recovery of the dagger.

Similarly, Rashid, father of Umar, expressed complete ignorance of the occurrence and stated that on 1st July 1965, at 8‑30 a.m. he was in his house when two police constables came along with Salahuddin, uncle of deceased Karim Bakhsh and took him to the police station, where one Haji Karim Bakhsh, an official of the Sessions Court, his brother Rahim Bakhsh and one Kassim were already present who were inimical to him for political reasons, and were instrumental in cooking up. a false case against him and other appellants who were closely related to him Murad appellant also took up a similar stand and stated that he was at his house on the day of occurrence and opened the door in response to a knock and the next moment he found himself in police custody. He further stated that he had defeated one Pir Bakhsh in B. D. elections who in turn defeated their candidate Khair Muhammad. He further stated that earlier in 1958, he had himself contested the Karachi Municipal Corporation election against Rahim Bakhsh and it was on account of this old standing political rivalry and enmity that he was implicated in this false case of murder at the instance of Haji Karim Bakhsh and Rahim Bakhsh, etc. The appellants led no evidence in defence.

Placing full reliance on the testimony of the eye‑witnesses supported by the medical evidence and further corroborated by the recovery of blood‑stained dagger, the learned Sessions Judge came to the conclusion that the offence had been fully brought home to the appellants. Their conviction has given rise to the present criminal appeal, as well as the murder reference.

3. The learned counsel for the appellants raised the following contentions before us:

(1) That an innocent remark by Karim Bakhsh deceased against the rash driving of Umar appellant should not have normally resulted in such a violent reaction as demonstrated by Umar, unless there was a background of previous bad blood.

(2) That it would be a strange coincidence, rather difficult to believe that the same set of witnesses, namely Isa, Samad, Kadir and Maula Bakhsh who appeared as eye‑witnesses of the main occurrence should have also been present at the time of the previous altercation between Karim Bakhsh deceased and Umar appellant.

(3) That in view of the existence of the party factions in the locality the relationship of the P. Ws. inter se and their interest in the deceased, the testimony of the P. Ws. was to be oaken with a grain of salt, particularly because of their improvements, inconsistencies and discrepancies.

(4) That at any rate, there was no valid ground for the application of section 34, P. P. C. as there was nothing on the record to show that the alleged act of murder had been done in furtherance of the common intention of all the appellants particularly when it was the prosecution's own version that Murad appellant had kept the dagger hidden in the folds of his trousers. Further, the absence of an injury by a blunt weapon on the person of Isa complainant, also made the alleged use of stick by Ishaque extremely doubtful.

4. Before us the learned counsel appearing for the appellants as well as counsel for the State were agreed that the parties probably had a background of previous enmity between them, having old scores to pay off; otherwise there was no occasion for Umar appellant to react so violently to a seemingly innocent remark made by the deceased in the interest of public safety. Besides, there was nothing on the record to indicate that the language used by Karim Bakhsh deceased was objectionable or the mode of expression was provocative. Normally nobody would be likely to take offence at such a remark. The sharp reaction evinced by Umar appellant leading to a scuffle would clearly indicate that the relations between the two were rather: sensitively abnormal. This has been to some extent established by the statements of the appellants at the trial when they were examined under section 342, Cr. P. Code. We hold accordingly, though we are inclined to think that nothing really turns upon it.

5. Coming now to the next contention that the same set of witnesses should have been present on both the occasions, it may be observed that though normally one would be rather cautious in accepting this position, there seems to be nothing improbable about it in the peculiar circumstances of the case before us, It is clearly established from the evidence on the record including the site plan that the appellants, the two deceased and the P. Ws., all resided in the same locality. Isa complainant ran ration shop No. 568 near the place of occurrence and also lived in the same vicinity. The house of Abdus Samad W. 3) was at a distance of 30/35 paces from Isa's shop. Kadir Baksh lived in the adjoining lane about 100 paces away from the scene of occurrence and the house of Maula Bakhsh, (P. W. 5) was 25 paces from the shop of Isa. There 'vas also a hotel known as Nazar Muhammad Hotel near the place of occurrence which appears to be a place of considerable repair. As such there is no element of improbability in the actual presence of the P. Ws. on both the occasions. The earlier incident took place at 7‑30 p.m. when people are supposed to be back home from the day's work in the evening while the main occurrence took place at 7‑30 a.m. on the following morning, when people are usually moving out. However, the mere fact that several other persons might also had been present on both the occasions does not per se warrant an inference of the absence, of the P. Ws. or militate against their credibility. This argument was also raised before and considered by the learned Additional Sessions Judge and was rightly over‑ruled by him.

6. Coming now to the third contention, it may be straightaway conceded that party‑factions had existed in the locality and also that the P. Ws‑ were related though rather distantly to the deceased Karim Bakhsh. But this would hardly be a ground warranting out‑right rejection of their testimony unless there may be other good reasons to do so. In our society it would not be always easy to find public spirited persons who would volunteer or even be persuaded to enter the witness box in support of a true version of which they may be the eye‑witnesses. On the contrary the usual tendency is to avoid such a situation. It is common knowledge that many a day‑fight crime has gone unpunished not on account of being unnoticed but because of the non‑availability o evidence at the trial owing to the reluctance of the eye‑witnesses to co‑operate with the prosecution. However, as stated earlier the mere fact that unconcerned witnesses are not forthcoming would hardly be a ground to discredit the testimony of the P. Ws. As regards the relationship of the P. Ws. Isa (P. W. 2 near whose shop the occurrence took place admitted in cross -examination that Jumma grandfather of Karim Bakhsh deceased was his maternal uncle. Samad (P. W. 3) a bus conductor living in the same locality denied the suggestion in cross examination that his mother was the sister of Isa (P. W. 2y,. Except this, no other relationship actual or suggested has been brought on the record. Kadir Bakhsh (P. W. 4) a labourer and resident of the same locality happened to be present at Nazar Muhammad Hotel at the relevant time. A suggestion was made to him that Mst. Gul Nisa wife of his brother Hassan was the niece of Mammi deceased, but the same was categorically denied. Maula Bakhsh (P. W. 5) is the brother of Karim Bakhsh deceased and gave an eye‑witness account of the occurrence. He admitted before the Inquiry Magistrate that Kist. Sharifan niece (sister's daughter) of Mammi deceased was married to his uncle Salahuddin. This kind of relationship is not per se a good ground to discredit the witnesses who otherwise are the natural witnesses of the occurrence and were in our opinion, rightly believed by the learned Additional Sessions Judge.

7. Significantly enough Maula Bakhsh (P. W. 5) was neither assaulted by the appellants nor did he actually try to rescue his brother who was fatally injured in his presence. He was a student of Second Year Class studying in the local Islamia College which he joined a month or so after the occurrence. He stayed behind at the scene of occurrence till the arrival of the police at 10‑30 a.m. when his statement was recorded. It was suggested that in all probability he was not present at the spot. No doubt, his behaviour appears to be rather unusual, but it seems to us that being a timorous and spiritless milk-shop he was completely flabbergasted. Having in vain entreated the assailants at the outset not to fight he stood dumb‑founded when his brother received that fatal injury. He stated that he almost lost his senses. There is nothing improbable about it and the learned Additional Sessions Judge who had the advantage of studying his demeanour did not disbelieve him.

8. Coming now to the next contention regarding the so‑called improvements and discrepancies in the statements of the P. Ws., it may be readily conceded that Isa, made one definite improvement in his police report when he entered the witness box at the trial. He deposed that on the previous evening when Umar appellant came in his jeep he was accompanied by his father Rashid appellant. There is no such reference to the presence of Rashid on the previous occasion in the first infor mation report. Also in this he stands fully belied by other witnesses who made no reference to the presence of Rashid on the previous evening. Yet another departure made by him from the first information report was that at the trial he stated that Umar P. W. was also attacked by Maula Bakhsh, but he (Isa) caught hold of Umar. Since no independent corroboration was available on these two points. he was rigntiy disbelieved by the learned Additional Sessions Judge to this extent. So far as the testimony ‑of Samad (P. W. 3) is concerned he definitely overstepped when he stated in cross‑examination that Isa (P, W. 2) had a red mart on has back as a result of injury received at the bands Ishaque. He also went back on statement before the Lower Court that Maula Bakhsh was stabbed. Another discrepancy between hit; statement at the trial and one before the lower Court is that in the latter Court he stated that the oven was working at the time and Hassan and Kadir were standing near the oven. On the contrary, he deposed at the trial that the oven was not open. Yet another confusion about his statement before the lower Court is that he allegedly stated to be on duty at 10‑00 a.m. on the day of occurrence. This obviously seems to be completely out of context with the rest of his statement before the police or at the trial. Two minor discrepancies in the statements of Kadir Bakhsh (P, W. 4) before the Committing Magistrate and the learned Additional Sessions Judge have been brought on the record, firstly on the point whether he was actually taking tea at Nazar Muhammad Hotel or was going to take tea and secondly whether he did at did not see Nazar Muhammad's son at the hotel. We have already held that the P. Ws. being the residents of the locality, their presence at the relevant time could hardly be open to question, and as such they were natural witnesses of the occurrence. Again a consistent and convincing version has been given by all of them. Their statements before the police were recorded soon after the occurrence. In these circumstances we are inclined to think that the improvement and discrepancies in their statements are not of a material nature and definitely, not of a character which would warrant the rejection of their testimony in toto. As such the learned Additional Sessions Judge was justified in placing full reliance on them, particularly when he received proper corroboration from the medical evidence and that of the recovery of the blood‑stained dagger.

9. We now come to the last and the most crucial point raised by the learned counsel for the appellants, namely, the question of the applicability of section 34 of the Pakistan Penal Code. The prosecution had undoubtedly attributed the two murders to Umar appellant who is the principal offender bearing the brunt of allegations. He alone was allegedly armed with a dagger with which the two deceased were fatally injured. This also received full support from the medical evidence available in the form of the statement of Doctor Major Anwar Hassan as also the two post‑mortem reports prepared by him. The recovery of the blood‑stained dagger at his instance also stood established which furnished further corroboration. Consequently, Umar appellant was awarded capital punishment while other were sentenced to imprisonment for life on the finding that the offence bad been committed in furtherance of common intention of them all. Admittedly, neither Rashid nor his brother Murad wielded or used any weapon. Ishaque appellant alone was stated to be armed with a stick with which he tried to hit Isa P. W. as the latter caught hold of Umar from behind. The solitary blow aimed by Ishaque at Isa lost its force by its impact on the rickshaw in the first instance. Thus the important question that remains to be determined by us is as to whether in the circumstances of the case the application of section 34, P. P. C. holding Rashid, Murad and Ishaque appellants vicariously responsible for the joint murder of Karim Bakhsh and Mammi would be justified.

10. Before giving a finding on this crucial issue, we would like to examine the correct legal position in this regard and the relevant requirements of law. Section 34 of the Pakistan Penal Code reads thus:‑

"34.‑When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

From the plain reading of the section it becomes quite clear that for its proper invocation two things have to be proved, namely, the existence of common intention and the commission of the act in furtherance of the common intention. In most cases than not no direct evidence of common intention would be available, as has happened in the circumstances of this case and as such it has to be gathered from the facts and the surrounding circumstances of each case.

There is a chain of judicial authorities available on the inter pretation of section 34, P. P. C. mostly based on the two Privy Council decision in Emperor v. Barendra Kumar Ghosh (AIR 1925, P C 1) and Mahbub Shah v. Emperor (A I R 1945 P C 118) which still hold the field. From the former the following observation of their Lordships may be advantageously reproduced:‑

"Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for that act and the act in the latter part of the section must include the whole action covered by 'a criminal act' in part I, because they refer to it."

In the same judgment Richardson, J. observed as follows:‑

"Prove the common intention of the persons present at the moment of the offence arid all would be equally guilty of nothing less than that offence. If death were the result of the act or series of acts of one out of the several confederates; the act would be done by them within the meaning of section 34. If death followed the different acts of different confederates at the same time and place, then again section 34 would pro bably suffice. Every confederate would be regarded as having done every criminal act and would, therefore, be liable as if he had done them all alone."

In A I R 1945 P C 118, it was observed by their Lordships as under

"Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say 'the common intention of all' nor does it say 'an intention common to all'. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of section 34 successfully, it must be shown that the Criminal Act complained against was done by one of the accused persons in the furtherance of the common intention of all. If this is shown then liability for the crime may be imposed on any one of the persons is the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of section implies a pre‑arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to‑ the pre‑arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his Act or conduct or other relevant circumstances of the case."

The other relevant legal consideration in this regard is that of the determination of the question of the credibility of the witnesses in cases of doubt. It is well settled that whenever the appellate Courts may be in some manner of doubt as to be credibility of witnesses, the estimate formed by the trial Court which has the advantage of studying their demeanour shall be allowed to prevail unless there may be compelling reasons to the contrary. The High Courts have, therefore, been slow to interfere with such an appraisal except in rare casts and that too for good reasons. In Safdar Ali v. Crown (PLD 1953 FC 93) while dealing with a' major contradiction in the prosecution story relating to the number of culprits, their Lordships were pleased to observe as follows:‑

"When such contradictions, affecting the evidence of the most important witnesses in a murder case appear at the trial as clearly as they did in this case, an Appellate Court should be slow to upset the conclusions reached by the trial Judge who both saw and heard these witnesses, as well as all the other witnesses in the case. Questions of highest importance turned on the conflicting testimony of these witnesses, and the extent to which it could be believed the Appellate Court could not possibly recapture the initial advantage of the Judge who saw, and disbelieved them. This is riot to say that, in these or any given circumstances, the Appellate Court must concede finality to the Judge of the first instance; the matter relates to the weight to be attached to the trial Judge's finding, and high authority is not lacking for the proposition that, in such circumstances such a finding should not be disturbed unless it is manifestly wrong."

The same principle was reiterated in Muhammad Afsar v. Crown (P L D 1954 F C 170). It was observed as under:‑

"In these circumstances, it seems to us that the true criterion to be applied by the Court of Appeal, if it regarded Mst. Shah Jahan's testimony as doubtful (as appears from the decision that Muhammad Azim was roped in unjustly) was to rely on the estimate of her credibility formed by the trial Court which had enjoyed the advantage of seeing and hearing the witnesses when she was under examination in the witness box,"

In Lalu v. State (P L D 1959 S C 258) their Lordships of the Supreme Court while accepting an appeal against acquittal filed by the State made the following observation which again is a reiteration of the same principle

"And we may add, what is already sufficiently apparent from this judgment, and is, indeed fundamental to the exercise of appellate jurisdiction in cases involving the reception of direct evidence, that we have given proper weight and considerations to the views of the trial Judge as regards the credibility of the witnesses, bearing in mind the advantage which he enjoyed of seeing arid hearing those witnesses."

It is on these standards that the available evidence has to be judged with a view to determine the question of the application of section 34, P. P. C.

11. Reverting now to the evidence on the record it may be conceded at the outset that there is no direct evidence to the effect that Umar appellant had apprised his father Rashid or uncle Murad of what had transpired between him and Karim Bakhsh deceased on the previous evening. Yet it has been consistently stated by all the prosecution witnesses that it was Rashid who took the initiative. Since however, both the father and the son lived in the same locality though separately, it would not be difficult to believe that residing in the same vicinity, Rashid might have learnt about his son's exchange of abuses and grappling with Karim Bakhsh either from him or through some other source. From the evidence if believed it appears that his sensitivity wan deeply touched and he was very furious otherwise he would not have hurled such a provocative and self‑abusive remark at his son. Accompanied by his brother Murad he called out his son from his house where Ishaque also lived and in order to instigate him to wreak vengeance on Karim Bakhsh deceased employed the language which could make any body's blood boil. Nothing could be more inflammatory in our society than such a remark by a father to his son involving the most delicate question of the honour of both. It may be re‑called that Rashid had called Karim Bakhsh the husband of Umar's mother who was none else than his own' wife. This had the desired effect and all the four appellants then went to the road side and waited for Karim Bakhsh to come. As it was the usual time for him to take out his taxi from his nearby garage, precisely at this moment Karim Bakhsh emerged along with his brother Maula Bakhsh, who was sitting in the rear. Another part attributed to Rashid appellant is that when he saw Mammi rushing to the spot in order to rescue Karim Bakhsh, he shouted that Mammi also belonged to the opposite‑party and should be finished. Nothing could be more clearly indicative of the state of mind of Rashid. In a recent judgment Chiragh Din and others v. The State (P L D 1967 S C 340) their Lordships felt the necessity of clarifying the position in an earlier ruling in Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658) in which the mere raising of the lalkara by an accused person in a case of murder was considered not sufficiently incriminating so as to constitute the basis of conviction for abetment. This position was, however, elaborated in Chiragh Din's case. It was observed by their Lordships:

"The precedent case is not to be read as laying down that lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. That question must be decided by the trial Court on an application of all the facts, including the degree of interest in the crime possessed by the person who shouted the lalkara and the part be played in the background of the affair. There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction, by the application of section 114, P. P. C. Shouting of a lalkara may, in such circumstances, have effect as a further over act of abetment.

It is not possible, without a full appreciation of the evidence relating to the background of a crime and its actual commission, to say that proof of a person shouting a lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime."

The effect of the exhortation of Rashid appellant on his son and his younger brother and cousin was bound to be tremendous. Murad appellant bad physically participated by catching hold of Mammi as he was being given the fatal injuries by Umar. If Murad had not caught hold of him he would have; struggled and put up some resistence to save himself and might possibly have succeeded. As such Murad did play a positive role and had contributed towards the death of Mammi. According to the prosecution Ishaque was armed with a stick with which he tried to hit Isa (P. W. 2) but the blow fell on the rickshaw instead of hitting Isa, In the circumstances the evidence would clearly establish both the ingredients of section 34, P. P. I. namely, the existence of intention and the commission of the offence in furtherance thereof. The learned trial Court placed full reliance on this evidence and in view of the authorities cited above, we find hardly any reason to take a different view and upset the conclusions arrived at by the trial Court. It was emphatically argued by the learned coups for the appellant that Umar having already thrown‑ a challenge to Karim Bakhsh deceased on the previous evening, needed no further prompting from his father. Further, the admitted fact that Rashid and Murad were not wielding arms militated against the inference of the existence of the common intention to murder. As stated earlier we find no reason to disagree with the trial Judge that Rashid bad taken the initiative in the company of his brother Murad. The fact that four of them had reached the road side in a furious mood waiting for Karim Bakhsh to come is a proof positive of the existence of the, common intention. The sub sequent remark by Rashid when he saw Mammi running towards them that he should also be finished lends further support to this. What followed was clearly done in furtherance of the common intention of them all. They were, therefore not responsible for their individual acts but all were jointly responsible for the consequence that followed, The application of section 31, P. P. C. was clearly attracted and was rightly invoked by the learned Additional Sessions Judge.

12. In consequence, the appeal fails and is hereby dismissed. The sentence of death of Umar is confirmed.

Appeal dismissed.

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