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< [if supportLists]>(a) Criminal Procedure Co de (V of 1898)-------

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S. 161‑Statements State recorded under S. 161, are not evidence‑Omission of a fact from such statement‑‑Does not amount to contradiction‑ Practice of proving such omissions of statements‑To be generally discouraged.

The statements recorded under section 161, Cr. P. C. are not evidence. Strictly speaking an omission from the statement recorded try police does not amount to a contradiction. An omission of a fact from the statement is only of value if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made, The practice of proving such omissions of statements is generally to be discouraged.

Tera Mia v. The Crown 7 D L R 539 rel.

(b) Penal Code (XLV of 1860)-------

S. 147,---Title to property Question of title not of any importance in a criminal case.

(c) Criminal trial‑----

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Motive‑Prosecution not bound to prove any motive for crime.

(d) Witness

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---‑Credibility‑Distant relationship with complainant party‑Held, cannot be a ground to discard evidence of witness.

(e) Evidence Act (I of 1872)-------

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S. 32‑Dying declaration‑Non- recording of questions in statement‑Held, cannot raise any adverse presumption against Recording Officer nor can a dying declaration for that reason alone, be thrown away as not genuine.

It has been held in some cases that recording of the dying statement in the form of questions ‑and answers is improper. So the non‑recording of the questions in the statement is not very material and it cannot raise any adverse presumption against the Recording Officer and for that reason alone, a dying declaration cannot be thrown away as not genuine:

(f) Evidence Act (I of 1872)------

-----S. 32‑Dying declaration‑ Evidentiary value of‑Statement duly proved and committed into evidence can be basis for conviction‑Such statement, held, stands on same footing as any other evidence as to its value and credibility.

A dying statement duly proved and admitted into evidence under section 32 of the Evidence Act stands on the same tooting as any other evidence as to its value and credibility and it call safely be the basis for conviction in a case.

(g) Evidence Act (I of 1872)-------

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S. 32‑Dying Declaration‑‑ Detailed description of occurrence need not be given by a plan to dying condition.

A man in a dying condition need not give long description of the occurrence. If he just mentions the names of his assailants and states as to how he received the injuries; that may be deemed as sufficient for the purpose of accepting it in evidence.

(h) Penal Code (XLV of 1860)-------

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Ss. 147 & 302‑Prosecution witnesses and F. I. R., uniformly naming all accused‑Mere fact that deceased, in dying declaration, named only three persons who actually assaulted him‑Cannot discredit testimony of witnesses as regards, charge of unlawful assembly‑‑‑Prosecution case, in respect of charge under S. 147, nevertheless could receive support from dying state ment‑Conviction of accused under S. 147 upheld.

(i) Penal Code (XLV . of 1860)-----

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Ss. 34 & 149‑"Common intention" and "common object"‑Distinction between and applica tion of Ss. 34 & 149‑Inference of common intention to be deduced in each case, from its surrounding facts.

A common intention may, no doubt, grow in 'the course of the event. A common intention or common object is a thing which cannot always be proved by direct evidence and it should be‑ inferred from the surrounding facts and circumstances of the case. But in a case of rioting, the facts and circumstances which .constitute the common object of the unlawful assembly may not by itself be always sufficient to attract the common intention in a smaller group out of a bigger group. A common intention and common object should not be mixed up together. The common intention and common object are not synonymous in any way and they have got their distinguishable features. The distinctions between sections 34 and 149; P. P. C. are now well settled. Section 34 of the Penal Code applies only in the circumstances given in the section. If the charge be one under Section 302/149, P. P: C. there is no difficulty but if the prosecution wants to take recourse to section 34 of the Penal Code, some additional materials are necessary to attract the application of that section. In order to bring a case within the mischief of section 34, it is essential that some additional circumstances beyond the materials which proved rioting, should be brought on record to show that there was a pre‑concert or mixing of the minds to do a thing other than the thing for which the common object was formed.

There should be some materials on .record to justify the finding of common intention and in the absence of any evidence common intention should be incapable of being gathered in a case. The aid of section 34, P. P. C. can be taken only when the facts and circumstances of the case so justify. In some cases, the possibility of developing common intention in a smaller group out of a bigger group during the course of the event cannot altogether be excluded but to justify‑ such an inference the prosecution must produce some materials. The inference of common intention in each case should be deduced from its surrounding facts.

Mahbub Shah v. Emperor A I R 1945 P C 118 ; Sahibzada v. Crown P L D 1950 Pesh. 60; 6 D L R 90 and‑. 17 D L R 108 ref.

Md. Ismail with Syed Shahudul Huq and M. G. Bhuiya for Appellants.

T. Talukdar for the State.

Dates of hearing : ,25th, 26th and 27th March 1970.

JUDGMLNT

ABDUL HAKIM, J.‑ All

the eleven accused‑appellants have been convicted' undo section 147, P. P. C. and sentenced to suffer rigorous imprisonment for one year each. Appellants. Nos. 1 and 2 Ekabbar Ali alias Ekabbar and Akkas Ali alias Akka; have further been convicted under, section 302/34, P. P. C. and sentenced to transportation for life each.

The prosecution case, in short, is that on Tuesday, the 26^th Magh 1371 B. S: (corresponding to 9‑2‑65) at about noon complainant Jinnat Ali 'along with his two sons named Abdu Hashem ‑and deceased Abdur Rashid and another exchange labourer Askar Ali was clearing water hyacinth and other wale weeds from his land within Tekain Beel under .P. S. Nakhla District Mymensingh in order to make it fit for boro transplantation. At that time accused Ekabbar, Akkas, Jan Ali, Akbar Alim Munshi, Amjad, Wahab, Khadem, Antaz, Jabed, Tahe (now dead) and some others in a body, armed with lathis falas, ish, etc., came there with a common object to assault the complainant on the plea that he made tadbir in a criminal case brought by his father‑in‑law against them. Under thorder of Taher (now dead) accused Ekabbar first dealt a blow on the head of Abdur Rashid with ish (a part of a. plough made of gorjan wood) and the latter fell down there. 'Accuses Akkas and Taher each then dealt a fala blow upon him Jinnat Ali tried to intervene whereupon Taher struck him with a fala. His brother‑in‑law Kafiluddin who was catching fish in the beel came to their rescue but he was assaulted by accused Jan Ali and Antaz alias Anta. The witnesses Ful Mahmud, Ansar Ali Wazed, Hares Ali and others who were working in their land nearby, saw the occurrence and came to the spot. In the meantime, the accused persons left the place. Injured Abdur Rashid was then removed to Nakhla Thana Dispensary. His father injured Jinnat Ali and his maternal uncle injured Kafiluddin accompanied him. Dr. A. K. M. Abdul Kader Bhuiya, Medical Officer, Nakhla Thana Dispensary examined his injuries and bandaged them. As the condition of Abdur Rashid was precarious due to the injuries, he advised the attendants to remove him immediately to Mymensingh S. K. Hospital. At the same time, he informed the Circle Officer, Nakhla to record the dying declaration of injured Abdur Rashid at once. The Circle Officer Mr. Mainuddin Ahmed came and recorded the dying declaration Exh. 1 of Abdur Rashid who was then sent to Mymensingh S. K. Hospital for better treatment. In the meantime, Jinnat Ali went to Thana and lodged a first information report Exh. 2 with the police on' the above allegations. Abdur Rashid succumbed to his injuries on his way to Mymensingh. Next day the dead body of Abdur Rashid was brought back to Nakhla P. S. and the Officer -in‑Charge, Nakhla held inquest on his dead body. The police thereafter investigated into the case and submitted charge‑sheet against the accused persons.

A First Class Magistrate, Sherpur held preliminary enquiry into the case and framed a, charge under section 147, P. P. C. against all the accused and a further charge under section 302/34, P. P. C. against Ekabbar and Akkas. A prima facie case having been made out against them, they were committed to the Court of Sessions to face trial on the above charges.

The plea of the accused was one of innocence. 7 hey asserted that complainant Jinnat Ali had no land in his‑possession within Tekain Beel. The land where the occurrence‑took place belonged to his father‑in‑law Jainuddin Ahmed. As the latter could not get possession of the land, so he sold it t9 the accused in Aswin before the occurrence. On the day of alleged occurrence accused Ekabbar, Akkas and Taher (now dead) were ploughing the land for boro transplantation when the complainant along with his men attacked them and that the other accused persons were not there during the occurrence.

Fourteen witnesses for the prosecution and none for the defence were examined in the case. A 'dying statement and, some other documents were also proved in the Court. Mr. M. U. Bhuiya, Additional Sessions Judge, 1st Court, Mymensingh considering the evidence and materials on record and agreeing with the opinion of the assessors under section 302/34, P. P. C. and partly disagreeing with their opinion under section 147, P. P. C., convicted and sentenced the accused‑appellants as mentioned above. Being aggrieved thereby the accused‑appellants preferred this appeal.

Mr. Md. Ismail, learned Advocate for, the appellants hay taken us through the judgment and depositions and raised several points before us. The points raised by the learned Advocate will appear from the judgment.

It is not disputed that the occurrence took place in a land situated within Tekain Beel comprising an ‑area of .88 acre in C. S. Dag No. 2180 and other C. S. Dags. The complainant Jinnat, Ali (P. W. 1) states that in the middle of Tekain Beel he has got 10/12 kathas of land in his possession for the last 13/14 years by growing boro thereon. P. W. 2 Kafiluddin and P. W. 3 Askar Ali also similarly state that P. W. 1 Jinnat Ali has got a land in his possession for the last 13/14 years in the middle of Tekain Bee]. P. W. 3 further states that he has got a land contiguous to the west of the land of complainant Jinnat Ali.. The defence suggestion is that the land which is said to be in the possession of P. W. 1 Jinnat Ali actually belonged to his father‑in‑law P. W. 5 Jainuddin and that as he could not get possession of the land, he sold it to the accused before this occurrence and as such the complainant. has got no possession in the disputed land. There is no evidence in the case to support the defence plea in this respect. The suggestion put forward by the defence has been stoutly denied by the P. Ws. and not been substantiated by any materials on record. The uniform evidence of P. Ws. 1, 2 and 3 show that Jinnat Ali has been in possession of 10/12 kathas of land in the middle' of Tekain Beel for the last 13/14 years. P. W. 5 Jainuddin Ahmed has also stated that the complainant Jinnat Ali has got 10/12 kathas of land in the said beel and that the land he sold to the accused is at a d stance of about 500/ 600 cubits north from the land of the complainant. It is apparent from the evidence of P. W. 5 that the land sold to the accused is to the north of the land of Jinnat Ali at a distance of 500/600 cubits and that land cannot be mixed up with the land of the complainant. In a criminal case the question of title is not of any importance. In the state of evidence, as indicated above, we find no reason to disbelieve the complainant's story of possession on 10/ 12 kathas of land in the said beet and we hold that the complainant Jinnat Ali was in possession of the land in which the occurrence took place.

The motive of the crime, as alleged by the prosecution, is that P. W. 5 Jainuddin Ahmed, father‑in‑law of P. W. 1 brought a criminal case under section 447, P. P. C. against some of the accused sometime back and P. W. I Jinnat Ali made tadbir in that case on behalf of his father‑in‑law and out of that grudge, on the date of occurrence, the accused appellants attacked them all of a sudden and murdered Abdur Rashid. P. Ws: 1, 2 and 5 have proved the motive alleged in .the case. In the absence of any material to the contrary, we find no reason to disbelieve the motive proved by the P. Ws. The prosecution is not bound to give any motive 'for the crime. The motive given in the case has been duly proved. The grievance made by the learned Advocate that the motive alleged is extremely improbable and false has thus no force.

The fact that Abdur Rashid is dead, has been proved by the local witnesses, namely, P. Ws. 1, 2 and 3 etc. and also the doctor P. W. 8 who held post‑mortem examination on the dead body of Abdur Rashid. The defence also does not challenge the death of Abdur Rashid.

The prosecution has examined three eye‑witnesses, viz. P. Ws. 1‑3 in the case. Besides the other evidence, a dying declaration made by the deceased Abdur Rashid has also been proved to substantiate the charge under section 302/34, P. P. C.

P. W. 1 Jinnat Ali is the informant. He is also a victim of the occurrence. He has stated in his deposition that on Tuesday the 26th Magh 1371 B. S. at about noon he along with his sons deceased Abdur Rashid and Abdul Hashem and an exchange labourer P. W. 3 Askar Ali went to his boro land in Tekain Beel to clear water hyacinth and other weeds in order to make it fit for boro cultivation. . When they cleared up 2 kathas of land, accused Akkas, Ekabbar, Jan Ali, Khadem Ali, Anta alias Antaz, Alimuddin, Amjad, Wahed, Jobed Ali, Akbar Taher (now dead) and some others, armed with falas, lathis, ish etc came to his land and surrounded them. Taber (now dead) told : "Last year you made tadbir in a case brought by your father‑in‑law, where will you now go Kill the brother‑in‑law)" As soon as Taher said so, accused Ekabbar dealt a blow on the head of Abdur Rashid with an ish and as a result he fell down. Thereafter accused Akkas dealt a. fala blow on his left side of' the belly and then Taher (now dead), also dealt a fala blow below the blow given by accused Akkas: The witness went forward to rescue his son Abdur Rashid but Taher (now dead) struck him on his head with a fala. At that moment, P. W. 2 Kafiluddin who was catching fish in the beel came to their rescue and protested, whereupon he was also assaulted by accused Jan Ali and Antaz. At this stage some people, named Ful Mahmud, Asar Ali, Wajed Ali, Hares Ali and others came from .the west when the accused persons left the‑place of occurrence. The injured Abdur Rashid was removed to his house and then to Nakhla Thana Dispensary for treatment. P. W. 7 the doctor of the 7hana Dispensary examined' his injuries and bandaged them. He also examined the witness as well as P. W. 2. Thereafter the Circle Officer, Nakhla came there and recorded the dying declaration of Abdur Rashid. As the condition of Abdur Rashid was precarious, the doctor advised to remove him to Mymensingh S. K. Hospital. He was then sent to S. K. Hospital but on his way to Mymensingh he succumbed to his injuries. In the meantime, P. W. 1 lodged an ejahar Exh. 2 while Abdur Rashid was being carried to Mymensingh. Next day the dead body of Abdur Rashid was brought back to Thana where the Officer‑in‑Charge, Nakhla P. S. held inquest on his‑dead body. The witness in cross‑examination stoutly denied the defence suggestion that he and his men attacked Ekabbar, Akkas and Taher while they were ploughing the disputed land for boro plantation. He also denied the suggestion that none except the aforesaid accused were present there during the occurrence.

P. W. 2 Kafiluddin is also a victim of the occurrence. He has deposed to the effect that on Tuesday, the 26th Magh 1371 B. S. he went to catch fish in Tekain Beel at noon and found complainant Jinnat Ali removing water hyacinth from his land in the middle of that heel with his sons deceased Abdur Rashid and Abdul Hashem and the exchange labourer Askar Ali. After some time he saw accused Abbas Ali, Jan Ali, Akbar, Ekabbar, Taber (now dead), Alim Munshi, Amjad, Wahab, Khadem, Akkas Ali Antaz, Jobed and some others, armed with various weapons, going to the place of occurrence and attacking the complainant, and his sons. Taher (now dead) gave order "Kill the brother‑in‑law" and thereupon accused Ekabbar dealt a blow with an ish on the head of Abdur Rashid who then fell down there. Thereafter accused Akkas and Taher (now dead) each dealt a fala blow on the abdomen of Abdur Rashid. Taher also struck fala blow on the head of Jinnat Ali. The witness went to their rescue but accused Jan Ali and Antaz assaulted him with lathis. Hashem, in the meantime, ran away towards the west. Some people, namely, Askar Ali, Wajed Ali, Ful Mahmud and some others came there. They also saw the occurrence. Accused persons then left the place after committing assault upon them.

P. W. 3 Askar Ali has stated that on Tuesday, the 26th Magh 1371 B. S. at noon he was working with the complainant Jinnat Ali and his sons in the disputed land in Tekain Beel. When they were busy in removing the water hyacinth from the land, accused Taher (now dead) Ekabbar, Jan Ali, Akbar, Amjed Ali, Alim Munshi, Abbas Ali, Wahab, Khadem Ali, Asar, Akkas and others, armed with falas, lathis, ish, came there. Taber (now dead) gave order "Kill the brother‑in law". Then accused Ekabbar dealt a blow on the head of Abdur Rashid with an ish who then fell down there. Accused Akkas and Taher each dealt a fala blow on the belly of Abdur Rashid. Accused Taher also struck on the head of Jinnat Ali with a fala in his hand. P. W. 2 who was then catching fish nearby came and requested the accused persons not to quarrel, whereupon accused Jan Ali and Antaz assaulted him. P. Ws. Ful Mahmud, Asar and Wajed Ali who were working nearby saw the occurrence. The accused persons then left the place of occurrence.

The evidence of P. Ws. 1, 2 and 3, as discussed above, are corroborative to each other. They have been cross‑examined by the defence at length but nothing tangible have been elicited against them. It has been pointed out by the learned Advocate for the appellants that these three witnesses omitted to mention certain material facts to the investigating officer and they also contradicted their earlier statements made in the Committing Court on vital points and that their evidence cannot be safely relied on. We have looked into the omissions and contradictions pointed out by the learned Advocate and it appears that the omissions and contradictions are all on minor points. Most of these omissions and contradictions have been considered by the trial Court and it is not necessary to repeat them here. The omissions and contradictions pointed out to us are not at all material‑ and the evidence of the witnesses cannot be disbelieved merely due to some minor omissions and contradictions.

In this connection we may observe that certain questions put to the witnesses during cross‑examination by the defence are very clumsy and confusing and it is not easy to correctly reply to those questions put in such a confusing manner. In some cases, in one question, two‑three matters have been put to the witness in lump and in such circumstances the witness is likely to be perplexed to reply to such a question. Again the matter that has been put to the witness is not exactly the same that has been put to the Investigating Officer. From that alone it cannot be said that the witness has made omissions or contradictions. The procedure adopted for taking ‑omissions and contradictions should be disapproved.

Attempts have also been made by the defence to take contradictions from the witnesses, by referring to omissions in. the statements made to the police during the investigation. The statements recorded under section 161, Cr. P. C. are not evidence. Strictly speaking an omission from the statement recorded by police does not amount to a contradiction. An omission of a fact from the statement is only of value if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The practice of proving such omissions of statements is generally to be discouraged. The case of Tera Mia v. The Crown (7DLR539) supports the above view.

We have already said that the omissions and contradictions pointed out by the learned Advocate being on minor points, we do not think that the veracity of the witnesses have in any way been impeached on that score.

The learned Advocate has next contended that the P. Ws. 1 to 3 are inter‑related and as such interested and their evidence cannot be relied on. This grievance of the learned Advocate cannot be readily accepted. It is true that P. W. 1 is the father and P. W. 2 is the maternal uncle of the deceased but it is also true that they are the victim of the occurrence. They have received injuries in the hands of the accused and the injuries on their persons have duly been proved by P. W. 7 Dr. M. A. Kadir Bhuiya, Thana Medical Officer, Nakhla P. S. P. Ws. 1 and 2 being the victims of the occurrence, their presence on the spot cannot at all be doubted and they are the most competent witnesses in the case. P. W. 3 is not related to the complainant party. He is an exchange labourer and a common neighbour of the complainant and the accused persons. Suggestion of relationship put to the witness is one of great distance and such a distant relationship cannot be a ground to discard his evidence. In our opinion, the eye‑witnesses' versions furnished by P. Ws. 1, 2 and 3 are quite natural, reasonable and consistent and there is no reason to disbelieve their testimonies.

The learned Advocate for appellants has argued that the prosecution purposely withheld P. Ws. Wazed Ali, Mohammad Ali, Ful Mahmud and Tajer Ali and that an adverse presumption should be drawn against the prosecution for non‑examination of those material witnesses. Ful Mahmud is not a charge- sheeted witness. The defence did not put any question to the Investigating Officer as to why he was not cited as a witness. Ful Mahmud not being a charge‑sheeted witness, the prosecution is not bound to produce him before the Court. Regarding Wazed Ali, Mohammad Ali, Tajer Ali, the prosecution has given an explanation through the mouth of P. W. 1 Tnnat Ali. Tajer Ali is chacha sasur of P. W. 1 and Wazed Ali, Mohammad Ali and Asar Ali are the relations of the accused. They are gained over by the accused and a petition to that effect has been filed in Court. The explanation furnished by the prosecution for non- examination of these persons cannot be brushed aside. We are satisfied that the prosecution did not examine them for good reasons. Merely due to non‑examination of Wazed Ali ; Mohammad Ali, Ful Mahmud and Tajer Ali the prosecution case cannot be thrown away nor the evidence of the witnesses already examined in the case can be outright rejected.

Let us now turn to the medical evidence furnished in the case. The doctors, P. Ws. 7 and 8 each noticed three injuries on the person of deceased Abdur Rashid. P. W. 7 Dr. M. A. Kadir Bhuiya who examined the injuries of Abdur Rashid on the very day of occurrence, described the three injuries as under:‑

"(1) One lacerated wound 2" x " into scalp deep situated obliquely over the left half of the frontal region of head simple in nature caused by blunt weapon.

(2) One bleeding punctured wound 3 " x " perforating the stomach grievous in nature caused by sharp‑pointed weapon.

(3) One bleeding punctured wound 2 x " which prolapse of the intestine over the lower part of the left side of the abdomen grievous in nature caused by sharp‑pointed weapon,"

He also examined P. Ws. 1 and 2 on the same day and found some injuries on their persons.

P. W. 8 Dr. Mahbubul Alam who held post‑mortem examination on the dead body of Abdur Rashid on 11‑2‑65 also found‑three injuries on his person. He described the injuries as follows :‑‑

"(1) One stitched wound 1 " long over the left half of the forehead oblique in direction on dissection the wound was found to be scalp deep 2/3" wide. It is an incised wound by sharp cutting weapon.

(2) One stitched wound 3 " long on the left side of the lower part of the chest oblique in direction. On dissection it was found to be muscle deep. It is an incised wound caused by sharp‑cutting weapon.

(3) One stitched wound 3" long in the left hypochondrum transverse in direction.

On dissection the wound was directed inward and slightly downward and the following were found (a) 11th rib cut across (b) punctured wound of the splean (C) perforating the Mesentry on four different places (d) perforating the stomach in two different places (e) huge collection of extra-vasated blood in the peritonial cavity. This injury was caused by sharp‑cutting pointed weapon."

P. W. 9 Mr. Mainuddin Ahmed, Circle Officer, Nakhla has proved the dying declaration Exh. 1 made by deceased Abdur Rashid. He has stated in his deposition that he went to the Thana Dispensary on 9‑2‑65 and recorded the dying declaration Exh. 1 of deceased Abdur Rashid at 8 p.m. on the identification of his father P. W. 1 Jinnat Ali. He further state that he recorded the statement of deceased Abdur Rashid it his language as far as practicable in the presence of two Chairmen Messrs Abdul Kader Azad and Abdur Razzaque and read over the same to Abdur Rashid who then put hip left thumb‑impression after admitting the same as correctly written. In the dying declaration Exh. 1, deceased Abdul Rashid stated that on 9‑2‑65 at noon he went to clear up upon land in Tekain Beel when Taher Ali son of Damalia Sheikh Akkas Ali son of Amir Sheikh and Ekka son of Abbas attacked him. Ekka dealt a blow upon his head with at, ish of plough. Under order of Taber, Akkas dealt a blow on the left side of his belly with a fala. Then Taher also deal a blow with a fula upon the left side of his chest.

P. W. 10 Abdul Kader Azad and P. W. 11 Abdur Razzaque, the two Chairmen who attested the dying declaration Exh. 1, have corroborated the fact that the Circle Officer, P. W. recorded the dying declaration, Exh. 1 of deceased Abdur Rashid on his statement and read it over to him who then put his left thumb‑impression on it admitting the same to be correctly written.

The learned Advocate for the appellants has contended that Circle Officer (P. W. 9) in recording the dying declaration appears to have put question to the deceased but in the dying declaration there is no indication what question was put to the deceased and whether the question put, was a leading one or not. The dying declaration being silent in this respect and the,, being no certainty what type of question was actually put to the victim, the dying statement cannot be said to be genuine one and as such it cannot' be safely accepted evidence. There is nothing on record to show that the Circle Officer put any question to the deceased. Even if it be conceded that the Recording Officer put any question to the deceased while recording the dying statement but merely due to the non‑recording of that question, it cannot be said that the statement recorded by the Circle Officer is not genuine The Circle Officer has no reason to be interested in one party or biased against the other. He is a responsible gazetted Officer and has no reason to record. an untrue statement or prepare a false document. He has categorically stated in his deposition that he recorded the statement of deceased Abdur Rashid in his language as far as practicable in presence of two Chairmen. That being the position there is no reason to think that the Circle Officer put any leading question the deceased and recorded any statement which is not genuine.

It has been held in some cases that recording of the dying statement in the form of question and answer is improper. So the non‑recording of the questions in the statement is not very material and it cannot raise any adverse presumption against the Recording Officer and for that reason alone, a dying declaration cannot be thrown away as not genuine. We cannot, therefore, accept the contention raised by the learned Advocate.

A dying statement duly proved and admitted into evidence under section 32 of the Evidence Act stands on the same footing as any other evidence as to its value and credibility and it can safely be the basis for conviction in a case.

The dying declaration, Exh. 1 proved in the case is genuine and true and it can be safely acted upon.

The evidence of P. W. 4 has been disbelieved by the trial Court with good reasons and it is not necessary to discuss his evidence here. P. W. 6 is a formal witness and P. Ws. 12 and 13 are just tendered by the prosecution. P. W. 14 is the Investigating Officer in the case.

In the light of the evidence discussed above, let us now see how far the prosecution has succeeded to prove the charge under section 147, P. P. C. All the accused are named in the First Information Report, Exh. 2. I'. Ws. 1, 2 and 3 have uniformly stated that all the eleven accused along with others came in a body, armed with lathis, (alas, ish etc. and attacked the complainant and his sons. The common object of the assembly was to assault the complainant and his men. The evidence of P. Ws. 1, 2 and 3 have proved beyond reason able doubt that all the accused‑appellants formed an unlawful assembly with the common object to assault the complainant and some of them used force and assaulted the complainant and his sons. A case under section 147, P. P. C. has thus been well established against them.

The learned Advocate for the accused has argued that the dying statement Exh. 1 mentions only three persons namely Ekka, Akkas and Taher (now dead) and that no case of unlawful assembly is made out from the dying declaration. In the dying statement, Exh. 1 the victim has just named his assailants. He has not detailed the entire prosecution case and it is not also necessary. A man in a dying condition need not give long description of the occurrence. If he just mentions the names of his assailants and states as to how he receives the injuries, that may be deemed as sufficient for the purpose of accepting it in evidence. The deceased Abdur Rashid mentioned only the names of his assailants in his dying declaration and not the names of the members of the unlaw ful assembly. Simply because of the fact that the deceased named only three persons who actually assaulted him, it cannot be argued that the prosecution case in respect of the charge under section 147, P. P. C. did not receive support from the dying statement. As already found earlier, P. Ws. 1, 2 and 3 uniformly named all the accused in Court. In the first information report also they were named. Merely due to the fact that the deceased named only his three assailants, the evidence of the above witnesses cannot be disbelieved. We cannot, therefore, accept the grievance that no case of unlawful assembly has been made out by the prosecution. We are of opinion, that the charge under section 147, P. P. C. has been established by convincing evidence and the accused‑appel lants have been rightly convicted thereunder. Of course, accused Akkas being armed with fala ought to have been convict ed under section 148, P. P. C.

Let us now come to the charge under section 302/34, P. P. C. levelled against accused‑appellants Nos. 1 and 2 Ekabbar and Akkas. The learned Judge considering the evidence, facts and circumstances of the case held as follows :‑‑

"From the above discussion of evidence, facts and cir cumstances of the case I am fully convinced and satisfied that accused Ekabbar first dealt a blow on the head of deceased Abdur Rashid with a plough ish and that after he fell down on receipt of that injury accused Akkas and Taher (now dead) each dealt a fala blow upon him in quick succession and as a result he died subsequently. Their conduct and the nature of the injuries inflicted by them upon Abdur Rashid leaves no room for doubt to hold that they had their common intention to cause his death."

It appears from the evidence of the two doctors, P. Ws. 7 and 8 that they differed in their opinions in respect of the injuries found on person of deceased Abdur Rashid. Each of them found three injuries on the body of the victim. According to P. W. 7, injury No. 1 was simple in nature caused by blunt weapon and injuries Nos. 2 and 3 were grievous in nature caused by sharp‑cutting weapon. P. W. 8, on the contrary, opined that injuries Nos. 1 and 2 were simple and injury No. 3 was dangerous. He further opined that the death of the patient was due to the effect of injury No. 3 which was ante‑mortem and homicidal in nature. Reading the evidence of the two doctors, it appears that their opinions in respect of injuries Nos. 1 and 3 are uniform. Both the doctors have described the injury No. 1 as simple and the injury No. 3 as grievous or dangerous. But their opinions in respect of injury No. 2 is divided. According to P. W. 7 injury No. 2 is grievous but according to P. W. 8 injury No. 2 is simple: P. W. 7 gave his opinion just from an outward glance of the injury, whereas P. W. 8 passed his opinion after the post‑mortem examination on the dead body. The opinion given by P. W. 8 seems to be more authentic. In a criminal case when the opinions are divided. on a particular point, the cardinal princi ple is that the opinion favourable to the accused should be accepted. The two doctors having differed in their opinions, it would be fair to hold that the injury No. 2 is simple. We, therefore, hold that the injury No. 2 found on the body of the deceased is a simple one.

P. W. 8 Dr. Mahbubul Alam once stated that the death of Abdur Rashid was due to the effect of injury No. 3 which was ante‑mortem and homicidal in nature. He has again stated that all the injuries were ante‑mortem and homicidal in nature and the injuries Nos. 1 and 2.might enhance the process of death. But the injuries Nos. 1 and 2, as found by him, are simple and that being so, there is no reason to think that these injuries were individually responsible for the death of the victim. Thus considering the evidence of two doctors together, it seems that the injury No. 3 was mainly respon sible for the death of Abdur Rashid.

P. W. 1 stated that accused Ekabbar dealt an ish blow on the head of Abdur Rashid, accused Akkas dealt a fala blow on his belly just below the chest and Taher (now dead) dealt a fala blow below the blow given by Akkas: Thus from his evidence accused‑appellant Ekabbar can be connected with injury No. 1, accused appellant Akkas can be connected with injury No. 2 and Taher (now dead) can be connected with injury No 3.

As pointed out earlier, the injuries Nos. 1 and 2 being simple, a question arose in the case as to whether the accused appellants Nos. 1 and 2 formed any common intention with Taher (now dead) to murder Abdur Rashid on the spur of moment. Mr. Md. Ismail learned Advocate for the appellants has strenuously argued that no common intention was made out within the meaning of section 34, P. P. C. against the appellants Nos. I and 2. His contention is that section 34 requires a pre‑arranged plan as held by the Privy Council in the case of Mahbub Shah v. Emperor (AIR1945PC118) and there being no evidence or circumstances ‑to show that any such pre‑arranged plan was hatched up, no common intention can be inferred against them and the conviction of the two accused‑appellants under section 302/34, P. P. C. is not justified in law. Even if the prosecution case is accepted, they may at best be liable for individual acts under sections 323 and 324, P. P. C. Mr. T: Talukdar, learned Advocate for the State has on the other hand, contended that the accused‑appellants Nos. 1 and 2 and Taher (now dead) assaulted the victim simultaneously one after another in quick succession on vital parts of his body and these circumstances are sufficient to hold that accused Ekabbar, Akkas and Taher (now dead) developed a common intention to kill deceased Abdur Rashid on the spur of the moment.

It is the consistent prosecution case that all the eleven accused‑appellants formed an unlawful assembly with the common object to assault P. W. 1 Jinnat Ali and his men and they came to the disputed land armed and assaulted the complainant‑party‑in‑prosecution of that common object. We have already discussed that part of the prosecution case and held that the accused formed an unlawful assembly and were rightly convicted under section 147, P. P. C.

Now the question for consideration is whether any common intention grew amongst the accused‑appellants Nos. 1 and 2 and Taher (now dead), out of a eleven members of the unlawful assembly, to kill Abdur Rashid. All the eleven accused being actuated by the common object alleged, coming to the spot in a body armed to materialise that common object and assaulting the complainant‑party‑in‑prosecution of that common object, it requires to be seen whether any common intention grew in a smaller group out of a bigger group and whether there are evidence and circumstances in, the case to show that these two accused‑appellants along with Taher intended anything different from the common object alleged and formed any common intention to kill Abdur Rashid at that moment after their arrival on the spot. A common intention may, no doubt, grow in the course of the event. A common intention or common object is a thing which cannot always be proved by direct evidence and it should be inferred from the surrounding facts and circumstances of the case. But in a case of rioting, the facts and circumstances which constitute the common object of the unlawful assembly may not by itself be always sufficient to attract the common intention in a smaller group out of a bigger group. A common intention and common object should not be mixed up' together. The common intention and common object are not synonymous in any way and they have got their distinguish able features. The distinctions between sections 34 and 149, P. P. C. are now well settled. Section 34 of the Penal Code applies only in the circumstances given in the section. If the charge be one under section 302/149, P. P. C. there is no difficulty but if the prosecution wants to take recourse to section 34 of the Penal Code, some additional materials are necessary to attract the application of that section. In order to bring a case within the mischief of section 34, it is essential that some additional circumstances beyond the materials which proved rioting, should be brought on record to show that there was a pre‑concert or mixing of the minds to do a thing other than the thing for which the common object was formed. The party consisting of eleven persons was actuated with the common object to do a certain thing and if some of them are then alleged to have intended to do something else, it is for the prosecution to bring those new circumstances and materials on record to take the aid of section 34 of the Penal Code. Some materials should be brought on record to infer the common intention in a smaller parliament within a bigger parliament.

In the case of Sahibzada v. Crown (P L D 1950 Pesh. 60) a Division Bench of the High Court of West Pakistan held as follows :‑

"Before, however, a person can be saddled with construc tive liability and convicted for the act done by another person under section 34, Indian Penal Code, it must be satisfactorily proved by the prosecution that the person so convicted had common intention of doing that particular act with the person actually doing it. Common intention should not be mixed up with "common object" in section 149, Indian Penal Code. Both are not in any way synonymous: Under section 149, Indian Penal Code a person who is a member of an unlawful assembly is guilty of the offence committed .by another member of an unlawful assembly although he had no intention to do it, because it is done in the prosecution of the common object of tie assembly of which both were the members. Similarly the "same" or 'similar" intention should not be confused with common intention. The dividing line between the two as pointed by their Lordships of the Privy Council in the case of Mahbub Shah v. Emperor A I R 1945 P C 118 is very thin, yet it is very material and substantial. A person in doing an act may have the same or similar intention with another person doing the same act, yet he may not have a common intention with him so as to invoke the aid of section 34, Indian Penal Code in convicting him. In the latter case there is always an element of pre‑planning before the act is actually done between two or more persons."

In the case of Mahbub Shah v. Emperor, their Lordships of the Privy Council observed as follows :-

"Evidence falls far short of showing that tire appellant and Wall Shah ever entered into a premeditated concert to bring abut the murder of Allah Dad in carrying out their intention of rescuing Quasim Shah. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds' is often very thin; nevertheless, the distinction is' real and substan tial, and if overlooked will result in miscarriage of justice. In their Lordships' view, the inference of common inten tion within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible' from the circumstances of the case."

In an unreported decision in Criminal‑ Appeal No. 715 of 1960, a Division Bench of this Court, almost on similar facts where some persons inflicted injuries simultaneously with deadly weapons 'on vital parts of the‑body of the deceased observed as follows :‑‑

"Whatever, might be the contention with respect to section 34 of the Pakistan Penal Code, there should be some common element to justify the finding of common intention. and in the absence of any direct evidence such a common intention should be incapable of being gathered from the circum stances of the case. It is that settled law that each case has to be decided by its own facts, ' Although it appears that Anisuddin Jamadar, gave an order in obedience to which these two appellants inflicted the respective injuries almost simultaneously on the vital part of the body on the spur 'of moment, yet considering the fact that there is no evidence to suggest any animus or previous enmity between the assailants and the deceased it is difficult to hold or find that simply because Momrej and Shanlsher were acting under the order or directions of Anisuddin Jamader they were actuated by a common intention to cause the injuries which have resulted in the death of Ayenuddin. Nothing can be borne out from the evidence on record and no reason can be assigned by reference to the same as to why these two accused persons should be actuated to undertake a concerted action against a man who was admittedly not interested on behalf of either of the two sides or parties. The deceased figured in the role of a peace‑maker and the order given by Anisuddin Jamadar was directed against all including the peace‑maker, but the appellants purported to act as ordered. There is nothing to suggest that there was any specific order to kill deceased Ayenuddin or any body. There is also no evidence to show that other people of the complainant party and the villagers got injuries. It is very difficult, in these circum stances, to hold that out' of the larger group a party of smaller group consisting of Shamser Matbar and Momrej Haji took into their head that they should act concertedly in the matter of causing injuries to Ayenuddin. In these circumstances, it is not impossible that both of them acted on their individual responsibility and although seemingly it might look to be a concerted action, yet . in fact, they acted on their individual responsibility with the same inten tion but not in furtherance of a common intention. We are, therefore, inclined to take the view that in the particular facts and circumstances of the case, the prosecution has failed to prove that there was a common intention of the appellants to cause the injuries which resulted in the death of Ayenuddin."

It is, therefore, apparent that there should be some materials on record to justify the finding of common intention and in the absence of any evidence such a common intention should be incapable of being gathered in a case. The aid of section 34, P. P. C. can be taken only when the facts and circumstances of the case‑so justify. In some cases, the possi bility of developing common intention in a smaller group out of a bigger group during the course of the event cannot altogether be excluded bat to justify such an, inference the prosecution must produce some materials. The inference of common intention in each case should be deduced from its surrounding facts. In the instant case; the eleven accused persons went to the land with the common object to assault P. W. 1 and his men and the facts and circumstances of the case show that whatever they did in this connection, they did it in prosecution of that common object. There is nothing on record to indicate that accused Ekabbar, Akkas and Taber (now dead) developed any common intention to kill Abdur Rashid on the spur of moment and they murdered Abdur Rashid in furtherance of their common intention. They had no special grudge or enmity against, Abdur Rashid and their main target was P. W. 1 Jinnat Ali Nothing can be borne out from the evidence and no reason can be assigned by reference to the same as to why , these accused persons should be actuated to undertake a concerted action against a man against whom they had no special animus. In the circumstances, it is difficult to hold that out of the larger group, a party of smaller group took into their head that they should act concertedly in the matter of causing the death of Abdur Rashid.

It has already been shown earlier that the injury No. 1 caused by accused Ekabber and the injury No. 2 caused by accused Akkas were simple, whereas the injury No. 3 caused by Taher (now dead) was fatal and the last injury was responsible for the death of Abdur Rashid. The injuries Nos. 1 and 2 on the person of deceased Abdur. Rashid having found to be simple, it is not impossible to think that accused‑appellants Nos. 1 and 2 acted in their individual responsibility and not in furtherance of any common intention. Although accused Ekabbar and Akkas dealt blows simultaneously with Taher (now dead) on the person of the deceased and seemingly it might look to be a concerted action, yet in fact, they acted in their individual capacity and in the absence of any evidence to the contrary, it cannot be said that they acted in furtherance of a common intention. Even if it be said that they had the same intention but the same or similar intention is not the common intention, as laid down by the Privy Council in Mahbub Shah's case referred to above. They might have the intention to assault in prosecution of the common object but the injuries inflicted by them being simple, they cannot be said to have the same or similar intention with Taher (now dead) to kill Abdur Rashid.

We are not unmindful to the decisions where the common intention has been inferred from the simultaneous infliction of injuries by several persons on the vital parts of the victim. But the facts of those cases are distinguishable (vide 6 D L R 90 and 17 D L R 108). In these cases, the accused were straight charged for the substantive offence with the aid of section 34, P. P. C. and there was no charge for rioting and common object. The accused came armed and inflicted injuries simultaneously one after another but they did not fort any unlawful assembly with a common object to assault, as it has happened in the present case. There a common intention may be inferred from the conduct of the accused and the surrounding facts and circumstances of the case but here the position is otherwise, as already indicated above. It is the settled law that each case has to be decided by its own facts. In the peculiar facts and circumstances of the present case, we are, therefore, inclined‑ to take the view that the prosecution has failed to prove the common intention alleged to be hatched up during the course of the event and section 34, P. P. C. has no application here.

This leads us to hold that the accused‑appellants 1 and 2 should be judged for their individual acts and in that view of the matter, there being sufficient evidence on record, as discussed earlier, we find accused‑appellant No. 1 Ekabbar guilty under section 323, P. P. C. and accused‑appellant No. 2 Akkas guilty under section 324, P. P. C. for their individual acts. Appellant No. 1 Ekabbar voluntarily caused hart on ‑the head of deceased Abdur Rashid with an ish of plough and appellant No. 2 Akkas voluntarily caused hurt on the belly of the deceased with a. fala blow. We, therefore, alter their conviction from section 302/34, P. P. C. to sections 323 and 324, P. P. C, respectively.

In result, the conviction of all the accused appellants under section 147, P. P. C. is affirmed and the further conviction of appellants Nos. 1 and 2 under section 302/34, P. P C. is reduced to sections 323 and 324, P. P. C. respectively. In view of the nature of the offence, we think that the accused‑appellants Nos. 1 and 2 should be given maximum sentence under sections 324 and 324, P. P. C. and accordingly the appellant No. 1 Ekabbar is sentenced to suffer rigorous imprisonment for one year and appellant No. 2 Akkas is sentenced to suffer rigorous imprison ment for three years.

We also maintain the order of sentence passed by the trial Court under section 147, P. P. C. so far as appellants Nos. 1 and 2 are concerned. In respect of the other accused‑appellants except No. 3 Abbas Ali and No. 11 Jobed Ali, we think that the ends of justice would be met if their sentence is reduced from one year to six months and accordingly their sentence is reduced to six months' rigorous imprisonment only. The appellant No. 3 Abbas Ali is reported to be aged 70 years and appellant No. 11 Jobed Ali is reported to be aged.65 years. In view of their old age, their substantive sentence may 0 altered to a sentence of fine and they are accordingly sentenced to pay a fine of Rs. 500 each, in default to suffer rigorous imprisonment for three months each. The sentence of the appellants Nos. 1 and 2 shall run consecutively.

The accused' who are on bail shall surrender forthwith and serve out the sentence.

The appeal is thus disposed of.

AHSANUDDIN CHOUDHURY, J

.‑‑I agree.

Order accordingly.

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