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Criminal Appeal No. 16 of 1953, decided on 14th December 1953.

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 14th January 1953, in Criminal Appeal No. 530 of 1952).

Ss. 302/149 & 326/149‑Common object of unlawful assembly consisting of six accused, not to cause death nor was death known to them to be likely result-- Cases of all accused identical with each other except that one of the n was armed with more dangerous weapon‑Conviction of five under S. 326/149 while that of sixth under S. 302/149, held, not justified‑‑Conviction altered in his case also to one under S. 326/149.

Ghias Muhammad, Advocate Federal Court for Appellant.

A. R. Changez, Advocate‑General of the Punjab (C. M. Sharif, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 14th December 1953.

.‑This is an appeal, by special leave, from a decision of the High Court of Judicature at Lahore sentencing the appellant Lal Din to death, under provisions of section 302 of the Pakistan Penal Code, for the murder of Mange Khan. The appellant was tried jointly with five others, namely, Nawab Din, Muhammad Yaqub, Ghulam Muhammad, Allah Ditta and Jhanda. All the six accused were convicted under section 302/149 by the Additional Sessions Judge, Lal Din being sentenced to death and the other five to transportation for life On appeal the learned Judges of the High Court held that the common object of the unlawful assembly consisting of the six convicts was not to cause death nor was death known to be the likely result". In consequence of this finding the learned Judges set aside the convictions of five the convicts under section 302/149 and substituted therefore convictions under section 326/149 and sentenced them to five years' rigorous imprisonment each. As fair as Lal Din was concerned, it was held that he was guilty of murder as lie was armed with a kulhari and had inflicted the fatal blow on the head of Mange Khan deceased.

We find it difficult to uphold the finding of the learned Judges that Lal Din, and Lal Din alone, was responsible for the death of Mange Khan. The medical evidence shows that the deceased have five injuries on his person

(1) An incised wound 1 " x " bone deep, on the front of head one inch from the hairy line of the forehead.

(2) A lacerated wound 2" x " scalp deep, parallel to and about behind No. 1.

(3) A lacerated would 1" x ' x bone deep 1 " to the right of wound No. 2 at the front end.

(4) Bleeding from right nostril was present.

(5) An abrasion 1" circular at the right fourth rib.

After reproducing these injuries in their judgment the learned Judges of the High Court have observed that the evidence of the doctor shows that there were only two injuries on the head. This is a mistake as it is obvious that according to the doctor's evidence there were three injuries on the head, one of them being an incised wound and the other two lacerated wounds. According to the case for the prosecution the appellant gave only one hatchet blow on the head of the deceased and thereafter did not strike him again, nor did he injure any other member of the party of the complainants. The two lathi blows on the head of the deceased were therefore struck by some other assailant. Under these injuries there were seven extensive fractures of the skull. It is impossible for anyone to state that all these fractures were the result of the first injury and that the second and the third injuries on the head did not give rise to any fracture. No medical man can assert unmistakably that injury No. 2 which is only one quarter of an inch behind injury No. 1 had not given rise to any fracture of the skull.

It appears to us that the case of the appellant is identical with the cases of the other five convicts except that be was armed with a more dangerous weapon. Some assailant other than Lal Din must be responsible for some of the seven fractures caused on the head of the deceased. It cannot be said with any degree of certainty that Lal Din and Lal Din alone gave the fatal blow and caused all the seven fractures with a single blow.

The learned Judges of the High Court have held that the common object of the unlawful assembly was not to cause death. In view of this finding and in view of the observations made above, the case of Lal Din, so far as the applicability of sec tion 326/149 is concerned, cannot be distinguished from the cases of the other convicts. We, therefore, set aside the conviction and sentence of the appellant under section 302 of the Pakistan Penal Code, and convict him of an offence tinder section 326/149. The others have been sentenced to five years' rigorous imprisonment each, but as the appellant was carrying a more dangerous weapon than the others, we, award him a sentence of seven years' rigorous imprisonment. This appeal is accepted to the extent indicated above.

Appeal partly accepted.

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