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Criminal Appeal No. 148 of 1972, decided on 24th September 1973.

‑‑‑ Ss. 325 & 323 read with S. 34‑Grievous hurt‑Witnesses not consistent in attribution of weapons to culprits or in parts assigned to each and such attribution also belied by medical evidence‑Such inconsistency not, however, by itself, sufficient to discard prosecution testimony‑Usually difficult, in such cases for witnesses to say accurately which culprit had what weapon and which injury he caused‑Such inconsistency may, however, in facts of a case recoil upon credibility of witnesses.

----Ss. 325 & 323 read with S. 34‑Grievous hurt‑Prosecution witnes ses related to each other and to deceased yet natural witnesses and only possible witnesses‑‑Incident having occurred inside deceased's house and partly outside his door, hardly possible in circumstances to expect any witness other than inmates of house.

‑‑ Ss. 325 & 323 read with S. 34‑Private defence, right of Prosecution witnesses having received injuries, some of them grievous, presence of witnesses and occurrence of incident virtually guaranteed‑Evidence of such witnesses natural and no other reason assigned to discard their testimonies except that of discrepancies‑Discrepancies alone being not sufficient to discard testimony, no reason, held, to discard evidence of such witnesses‑Defence story belied by facts and improbable‑No case of right of private defence, held, could be made out in circumstances.

-----Ss. 325 & 323 read with S. 149‑Grievous hurt‑Vicarious liability‑Application of S. 149‑Dependent upon existence of an unlawful assembly of five or more persona with common unlawful object‑Courts if satisfied of five or more persons having taken part in crime S. 149 may be applied even though the number of persons convicted be less than five.

The application of section 149, P. P. C. is dependent upon the existence of an unlawful assembly which is described in section 141 as an assembly of five or more persons the common object of which is one of several which are mentioned in that section. There is no reference in the section to the conviction of five or more persons. What the law requires is that the Courts be satisfied that five or more persons did actually take part and if such a finding can be reached then the fact merely that so many of them are not being actually convicted does not matter. If for example it were alleged in a particular case that a crowd as large as about 50 assembled together for an unlawful purpose and then committed a variety of offences but that only four of these persons could be identified and tried or convicted no reason for thinking that the conviction of these four or even a smaller number would be illegal by reference to section 149 provided of course that the Court entertains no doubt whatever that at least five, identified or not, took part.

Kapildo Singh v. The King A I R 1950 F C 80; Dalip Singh v. The State of Punjab A I R 1953 S C 364; Nar Singh v. The State of U. P. A I R 1954 S C 457; Marchalil Pakku v. State of Madras A I K 1954 S C 648; Juma v. The Crown P L D 1954 Lab. 783 and Muhammad Shafi v. State P L D 1967 S C 1967 ref.

‑‑ Ss. 323 & 325 read with S. 149‑Out of several persons charged only three established to be present at time of commission of offence‑Absconder, even if counted, would not enlarge number to five‑Doubt as to presence of remaining four accused, in circumstances, held, necessarily results in doubt as to actual number of persons present‑Section 149, in circumstances, not applicable.

‑‑ Ss. 325, 326 & 302‑None of injuries received by deceased individually or collectively sufficient in ordinary course of nature to cause death‑Offence committed, held, not culpable homicide but one of grievous hurt‑No weapon answering to description mentioned in S. 326 alleged to be used in causing injuries, offence fell under S. 325.

G, M. Mughal for Appellant No. 1.

Mohammad Ibrahim Memon for Appellants Nos. 2 and 4.

Azhar All Siddiqi for Appellants Nos. 3 and 5.

Manzoor Hussain for the State.

Date of hearing t 14th September 1973.

Towards the end of the year 1968 the prosecution party, by which I mean the deceased Sabir Ali who was also known as Achan and others of his relations, lived in three quarters which are adjacent to each other and are numbered 15/1, 15/2 and 15/3 in Landhi and have a common courtyard or, at least, a courtyard which by reason of the fact that the separating walls have been broken are capable of entry from one another. In the middle one of these quarters, namely the one numbered 15/2, lived the deceased and prosecution witness Farida, his wife; in the quarter adjoining it on the east numbered 15/3 lived his brother Umed Ali along with his wife and daughter, prosecution witnesses Naseem Fatima and Feroza Bano, while in the western mast of these quarters, numbered 15/1 lived the sister of these two brothers, who is a married woman with her husband, Mst. Mukhtar Bano, tae first informant in this case. The deceased apparently was known as something of a neighbourhood bully and was involved in quite a few cases and it appears from the record, though not very clearly, that the persons who ultimately stood trial for his murder, which of course include the present appellants, had various grudges against him but the principal motive which the prosecution assign to the accused persons is that they all had, as one party, a dispute with the deceased over the erection of same put. About a year prior to the incident it is claimed that they had beaten up the deceased on account of which he had filed a case which was still pending at the time when this incident took place. On the 21st December 1968 at about 4‑00 p.m. it is alleged that Mukhtar Bano hearing some commotion came out and saw all the accused persons namely, Din Mohammad, Ali Sher, Mohammad Ali, Puna, Iqbaluddin, Ruknuddin, Fateh Mohammad alias Siraj and one Mohammad Saeed, the last being an absconder during the trial, standing outside the door of the deceased's quarter and trying to break it open while abusing him. Various weapons are ascribed to the accused persons which include hockeysticks, a hatchet, an iron bar, a spear and a short sword. It is unnecessary just now to recite precisely which accused person is alleged to have been armed with which weapon for, as will be seen, the evidence is by no means consistent upon this question. The accused party succeeded in breaking open the door and entered the house and, upon Mukhtar Bano attempting to intervene, she herself was injured. By this time some of the accused persons went inside the room where the deceased was sleeping and dragging him out of the house gave him injuries. In the meantime Umed Ali along with his wife and his daughter also tried to come up and rescue the deceased but Umed Ali himself and his wife Nasim Fatima sustained injuries as a result of their attempt. The culprits then went away and Mst. Mukhtar Bano took the deceased who was still alive, to the Landhi Police Station where a first information report was lodged at 4‑15 p.m. In fact the deceased did not die until the 15th of January 1969 that is to say some three weeks after the incident, and upon the medical evidence, it is at least not clear that the injuries sustained by him were so clearly connected with his death that whoever caused them to him would be guilty of the offence of culpable homicide. An investigation ensued conducted by the Assistant Sub‑Inspector Mohammad Saeed and in the course of this investigation the police officer recovered a hockeystick from the house of Ruknuddin and another from that of Mohammad Ali; these were however not found to be blood‑stained and have not been sent to the Chemical Examiner for analysis. It might be as well to state here that these have not been taken into consideration against any of the accused persons by the learned trial Judge and indeed before me also. Mr. Manzoor Hussain, appearing for the State quite rightly conceded that the pro secution would have to succeed or fail upon an assessment of the ocular testimony only. The investigation being completed, seven persons were sent up for trial, that is to say those whom I have mentioned, other than Muhammad Saeed, who was absconding, on charges under sections 302, 149, 148, 325 and 323 of the Pakistan Penal Code. The learned Additional Sessions Judge who tried them acquitted Din Mohammad and Ali Sher and convicted the rest under section 148 of the Pakistan' Penal Code and sentenced them to two years' rigorous imprisonment on that count. In respect of the injuries to the deceased Sabir Ali' he also convicted all of them under section 325/149, P. P. C. and sentenced them to seven years' rigorous imprisonment and to pay a fine of Rs. 1,000 each or in default to undergo further rigorous imprisonment for six months. For the injuries caused to Umed Ali and Nasim Fatima he also convicted them on two separate counts under section 325/149 and for each of these offences he sentenced them to three years' rigorous imprisonment and to pay a fine of Rs. 500, or in default of payment to undergo rigorous imprisonment for six months. Finally, in respect of the injuries to Mst. Mukhtar Bano he sentenced each of them under section 323/149, P. P. C. to rigorous imprisonment for six months. The substantive terms of imprisonment he ordered to run concurrently. Against these convictions and sentences the persons convicted tiled an appeal through one counsel but before me the appellant Mohammad Ali has been represented by Mr. Moghul, Puna and Ruknuddin by Mr. Mohammad Ibrahim Memon while Mr. Azhar Siddiqi appeared for Iqbaluddin and Fateh Mohammad.

2. On behalf of the defence a case of private defence was set up based principally upon the first information report lodged by the appellant Fateh Mohammad alias Siraj at the Landhi Police Station at 4‑50 to the effect that he and the appellant Iqbaluddin were going to their houses when the deceased Sabir Ali accompanied by Israel, Baboo and four or five other persons met them. The deceased is then said to have pointed out to the appellants as persons who had given evidence against him in a case under the Goondas Act whereupon We entire party sought to attack the two appellants but they started running towards their houses. They reached the house of Fateh Mohammad but were pursued there by the deceased's party and upon Fateh Mohammad's coming out he was attacked anti as a result received a danda injury upon his leg which bled. On his cries Iqbaluddin and the absconder Saeed came to save him and the deceased inflicted a knife injury upon Iqbal while Israel and Baboo did the same to Saeed. This case was rejected by the learned trial Judge and, before me it was argued only very faintly but I think it is necessary to add that although this aspect of the case would have to be considered and, if accepted, the benefit of it would have to be given to all the appellants it is by no means the common case of all the appellants many of whom denied their actual presence at the scene.

3. Now the first attack which was made before me upon the pro secution case by learned counsel who appeared for the different appellants was upon the veracity of all the prosecution witnesses, and this upon a number of grounds. It was argued first that the witnesses were ay no means consistent in their attribution of weapons to the culprits or in the parts which they have assigned to each of them and that in any case these are belied by the medical evidence. This is in fact so. For instance in the case of Iqbaluddin, Mukhtar Khatoon says that he had a spear in his hand while in her first information report she did not mention any parti cular weapon in his hands. Umed Ali also says that he had a spear and gave injuries to Nasim Fatima but the injuries on Nasim Fatima as stated by the doctor are not consistent with such a weapon. On the deceased also there are no incised injuries except one which the doctor says could not have been caused by a hatchet. Tie other eye‑witnesses say that the deceased was hit upon the head but the medical evidence discloses no such injury. Other examples can be given but it should suffice to say that, factually, learned counsel are perfectly correct in saying that there is no only no unanimity about the weapons ascribed or the parts played but that it is not even a case where most of the witnesses are consistent upon the point and there is merely one or two minor discrepancies in the case of a few witnesses. I am unable to agree, however, that by itself this is sufficient to discard the prosecution testimony; in cases of this kind it is usually difficult for the most truthful of witnesses to be able to say with accurracy which culprit had what weapon in his hand and which injury he caused; moreover it is unfortunately the experience of the Courts that witnesses, while giving substantially a truthful account of the incident, do attempt to assign precise parts which they neither do nor can remember. I am of course far from saying that in no particular case can such an inconsistency recoil upon the credibility of the witnesses; this must always be a question of fact to be decided in each individual case. In the present case I do not regard this question as one of great practical consequence; if, in the entire circumstances, it is possible to accept the ocular testimony as being that of witnesses who were substantially speaking the truth then it is obviously a case in which, as I shall presently show, either section 149, or section 34 of the Pakistan Penal Code will apply and even though the question as to which injury was caused by which particular culprit remains in doubt the individual liability of each, by reason of one of these two provisions, will not be in doubt. It must of course be realised that, having said that the discrepancies in the attribution of weapons and injuries does not matter in the circumstances of the present case, it must C follow that whatever view be taken of the credibility in general of the witnesses, no reliance can be placed upon them for any finding that a parti cular injury was caused by a particular accused person.

4. The second main attack that was made against the prosecution witnesses was based upon the admitted fact that they are closely related to each other and to the deceased and that there is an entire absence of any disinterested evidence of the actual occurrence. This again is true but it is also to be remembered, related inter se as the witnesses are, they are no only the natural witnesses but probably the only possible witnesses. The incident occurred inside the house of the deceased or at least the house of the deceased and his relations and a small part of the incident occurred immediately outside his door. In those circumstances it can hardly be expected that there would be any witnesses other than the inmates of this house, however thickly inhabited the locality might be. It is true of course that there could have been witnesses who came upon the commotion and who could have given some corroboratory evidence or who might even have witnessed a part of occurrence which took place immediately outside the door. In cases where the argument is raised that other evidence was available but was not examined and that therefore an inference should be drawn against the prosecution I have always felt that no rigid rule or mathematical formula can really be relied upon. The inference is after all only an inference that the evidence of such witnesses if called would not have supported the prosecution. Granted that other witnesses might not have come and said that they saw any part of this quarrel but that does not necessarily mean that the witnesses who claim to have seen it are therefore lying when they say so. Other factors must also be taken into account and the obvious one which I have already considered is that these witnesses would naturally be present. Moreover as to three of them namely the first informant, Mukhtar Bano, Umed Ali and Nasim p Fatima, their presence is virtually guaranteed by the injuries which they suffered. In the case of Umed Ali and Nasim Fatima indeed they were grievous injuries. These injuries do more than guarantee the presence of the witnesses; they guarantee also that an incident did in fact take place in which they were hurt. On the whole, therefore, I can see no real reason to discard the evidence of these witnesses whose evidence is natural and against whom learned counsel for the appellant have been able to put forward no other argument affecting their credibility except the discrepancies to which I have already referred. I regard these witnesses therefore as substantially truthful witnesses but at the same time must say that in view of the fact that the very motive which is put forward by the prosecution, disclosing as it does some prior hostility between the deceased and the accused party between whom m fact at the time of the incident a criminal case was pending, I should look for something more than the bare words of these witnesses in examining the question which in dividual accused person was in fact present at the occurrence and took part in it. Apart from the inherent danger of the possibility of false implication there is, in this case, proved exaggeration inasmuch as the first information report mentions only five persons and yet the prosecution case is against eight.

5. Before however, I go on to examine this question it is necessary to consider the case of private defence put forward by the appellants. In so many words it is really suggested only by one of them, namely Fateh Mohammad alias Siraj who lodged the counter first information report. The version given in that first information report to which he adhered in the trial Court was a short one and I have already stated it. I find the story put forward extremely difficult to believe. On the one hand we are told that Fateh Muhammad was accompanied only by Iqbal and was escorted by as many as seven or eight persons hostile to himself as he himself knew. They were said to have been armed and challenged him and naturally both he and his companion tried to make good their escape, on the other we are told that having made good their escape and having reached their house, nevertheless, on being called out by the same party. Fateh Mohammad went outside and to his rescue came Iqbal and the absconder Saeed. Unarmed as Fateh Mohammad's party was and grossly outnumbered it seems difficult to reconcile this conduct with their earlier attempt to run away from the persons who were trying to attack them. And then all the damages that he sustained was a danda injury while Saeed it is said received some knife injuries and Iqbal was the victim of both danda and knife blows. Again this version. even if in itself probable, not only does net explain but is clearly contradictory to the prosecution version of an incident in the house of the deceased. The scene where the incident took place according to the prosecution was found to be blood‑stained; there was blood upon the walls of the house upon a cot and mattress and generally the scene presented all the appearance of a place where an incident of this kind had occurred. The version given by the defence also leaves entirely unexplained the injuries upon Umed Ali, Mukhtar Bano and Nasim Fatima. Even if one stretches a point in favour of the defence and assumes that one or two of the unrecognised companions of the deceased was Umed Ali certainly it is no part of the case of the defence that there were any women in that party, and the injuries therefore on Mukhtar Bano and Nasim Fatima com pletely belie the defence theory. Even otherwise, while it is not outside the range of possibility, it would be extraordinary indeed if women were part of the assailant party. Much more likely were women have been injured is the allegation that the incident took place inside their own house. I am entirely unable therefore to accept a case of the right of private defence.

6. I then come to the question as to which of the accused persons can be said safely to have taken part in the incident. The learned trial Judge acquitted two of the accused persons namely Dina and Ali Sher on the ground that no specific part have been attributed to them. As I have already shown, however, the attribution of specific parts can in any case not really be depended upon. These two persons denied their presence at the scene as also did Mohammad Ali whore however the learned Judge con victed. The manner in which lie distinguishes the case of Mohammad Ali from those whom he acquits is stated by him thus:‑

"Accused Muhammad Ali no doubt does not admit his presence at tire scene of offence, but his name also transpires in the F. I. R. recorded immediately after the incident viz., at 5 p.m. on the same date, when the incident took place at 4 p.m. According to this accused some: time before the incident, deceased Sabir Alt had given him knife blow for which he had filed a complaint. Thus he was also aggrieved person and admittedly had some grudge against the deceased. As already pointed out, it appears that the deceased was a sort of Dadagir in the Mohallah and all these accused persons had grudge against him and were aggrieved with him for causing injuries on one or the other of there. Thus they had the common motive either to wipe out the deceased, or at least to teach him the lesson not to trouble them in future."

Now if the mention of the name of Mohammad Ali in the first information report was a sufficient distinguishing feature in the case then the name of Dina also transpires in the first information report. Admittedly against the acquitted accused persons the State has filed no appeal and although of course it is open to me to hold that despite that Dina was in fact present, though I cannot reverse his conviction, the fact of the State being content to accept this finding must have some weight. There is however against Dina nothing except the word of the witness and that as I have already said is not, in my view, sufficient to bring home to any individual accused liability for the present crime. In these circumstances, I do not think it will be safe to convict Mohammad Ali either.

7. Apart from Mohammad Ali the learned Judge has convicted four others namely Siraj, Ruknuddin, Iqbaluddin and Puna on the basis that upon the defence theory the presence of these four and the absconding accused Saeed is admitted. As I have already stated the plea of the right of private defence was not specifically taken by each of the appellants and cannot therefore be regarded as an admission. However, in the case of some of these four persons there are passages in their statements under section 342 which might be read as admission of their presence or at least of such a fact as would lend assurance to their implication by the ocular testimony. In regard to Puna out of these, however, I do Lot think that there is such admission as would justify his implication on the basis of an admission. In answer to the question as to why the prosecution witnesses had deposed against him he stated "because I have deposed against Achan in a 307 case, his relatives have implicated me in this case". Now it does not follow from this answer that he is a witness in the counter case; it is to be remembered that at the time of the incident there was another case under section 307 rending against the deceased and this answer may well mean only that be was a witness in that case and to draw an inference therefore from this that be had either admitted his presence in the present incident or at least such a fact as would tend to establish such a presence is I think entirely unjustified. I am of the view therefore that the conviction of Puna also cannot be sustained.

8. The cases of Ruknuddin, Iqbaluddin and Fatah Mohammad stand upon a somewhat different footing. In regard to the last mentioned it is not merely his statements under section 342 that his earlier, counter first information report which shows that he took part in an incident of a violent character to which the deceased was also concerned upon the dad of the incident. It is true of course that he does not admit that the incident took place in the house of the deceased and if this were all the: evidence against him then by itself it would not justify his conviction. But I am regarding this evidence not as evidence by itself proving his presence but as evidence lending such corroboration as I think is necessary to the evidence of the eye‑witnesses whom I otherwise believe. Ruknuddin and Iqbaluddin also state that they are witnesses in the counter case and therefore much the same reasoning applies to them also. I would therefore consider the participation of Ruknuddin, Iqbaluddin and Fateh Mohammad alias Siraj as established beyond reasonable doubt.

9. There then arises the question of what offence these persons can be said to be guilty. As part of this question the very first matter which needs consideration is whether section 149 of the Pakistan Penal Code can be invoked. The number of persons convicted would then be three and even if to them be added the name of Saeed the absconder that would make still the number of participants only four and section 149, P. P. C. can apply only when there are at least five persons to form an unlawful assembly the question whether when less than five persons are convicted any of them can be so convicted by reason of vicarious liability under section 149, P. P. C. has been considered in several cases most of them from the Indian jurisdiction, but before, I go on to consider these cases. I should like to examine the question on principle. The application of the section is dependent upon the existence of an unlawful assembly which is described in section 141 as an assembly of five or more persons the common object of which is one of several which are mentioned in that section. There is no reference in the section to the conviction of five or more persons. I think therefore that what the law requires is that the Courts be satisfied that five or more persons did actually take part and if such a finding can be reached then the fact merely that so many of them are being actually con victed does not, in my view, matter. If for example it were alleged in a particular case that a crowd as large as about 50 assembled together for an unlawful purpose and then committed a variety of offences but that only four of these persons could be identified and tried or convicted I can see no reason for thinking that the conviction of these four or even a smaller number would be illegal by reference to section 149, provided of course that the Court entertains no doubt whatever that at least five, identified or not, took part. The difficulty however arises in kinds of case where a certain named number of persons are implicated and the Court finds upon the evidence that it is not possible to convict more than four; would the conviction of these four then under section 149 be proper The very fact that the persons who are alleged to have taken part are named and yet the presence of some of them not established would tend to throw a doubt upon whether there were in fact as many as five present. Nevertheless it might be a case of the Court holding that the persons whom it is acquitting are not established to be the persons who took part, and yet being satisfied that the actual number was five or more. On the other hand the finding could mean that out of a given number of persons alleged to be present the presence of some is doubtful and this would naturally mean that the presence of as many as five itself is doubtful. In most cases where persons are actually named and there is no question of mistaken identity or other unidentified persons also being present, I think the finding that some of hem are not established to be present must necessarily recoil on the probability of the number of persons also. If the number of convicted persons then is reduced to less than five, I think it would follow as an inference of fact that not as many as five persons were present and that therefore section 149 would not apply. But in all cases, I think it must remain eventually a question of fact and the essential thing is to remember that while acquitting some of the accused persons the Court must be able to reach a positive finding that there were still five persons present before it applies section 149; of course the two findings cannot be in any given case in consistent.

10. The cases which I have been able to find in which this question has been discussed have laid down the principle in different language and from some cases it might seem as if it is being held that if less than five persons are convicted section 149 cannot apply while the contrary is being held in other cases. On a close examination of these cases, I have come to the conclusion that regard being had to the facts involved in each of them there is no real discrepancy in principle which is as I have stated already. The first of these cases is Kapildo Singh v. The King. (A I R 1950 F C 80) where the conclusion was shortly put thus:‑

"In our opinion, the first contention is without substance. The essential question in a case under section 147 is whether there was an unlawful assembly as defined in section 141, Penal Code, of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused and, even when it is possible to convict less than five persons only, section 147 still applies if upon the evidence in the case the Court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more per sons, known or unknown, identified or unidentified, in the present case, there is such a finding and that concludes the matter."

Similarly in Dalip Singh v. The State of Punjab (A I R 1953 S C 364), the Indian Supreme Court observed:-

"19. Before section 149 can be called in aid, the Court must find 'cortainly' that there were at least five persons sharing the common object. A finding that three of them 'may or may not have been there' betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction.

20. This is not to say that five persons must always be convicted before section 149 can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of section 149 would be good. But if that is the conclusion it behoves a Court, parti cularly in a murder case where sentence of transportation in no less than four cases have been enhanced to death, to say with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions."

To the same effect are two other decisions of the Supreme Court of India namely the cases of Nar Singh v. The State of Uttar Pardesh (AIR 1954 S C 457), and Marchalil Pakku v. State of Madras (AIR 1954 S C 648). The question was also decided in a Division Bench case of the Lahore High Court, Juma v. The Crown (P L D 1954 Lah. 783) in which it was observed at page 795:‑

I am satisfied that six persons took part in the incident and, though three of the alleged culprits have been acquitted on account of in sufficiency of evidence against them, there is nothing to prevent the application of section 149, P. P. C. I am aware that some judicial decisions have laid down that unless the identity of five or more per sons were established section 149 could not be applied, but I must respectfully dissent from that view. Section 149 does not require that at least five participants must be convicted before that section can apply and that cannot be the law because the identity of some of the rioters may, in many cases, be in doubt."

With this view I am in entire and respectful agreement.

11. The question was also touched upon by a judgment of our Supreme Court although the question was not before the Lordships in precisely the same fashion as it is before me today; in the case of Mohammad Shaft v. State (P L D 1967 S C 167), their Lordships observed at page 175:‑

The intention in using a firearm was clearly to cause death, and there fore, the two deaths which have been caused be rightly held to be the result of a joint attack by the four persons before us thus attracting the application of section 34, P. P. C, which has been employed. Yet it would have been simpler and in fact, not in any way in con travention of either fact or law, to hold that these four persons with others who had not been identified beyond doubt, carried out the attack in which case the liability would be extended to all of them under section 149, P. P. C."

I think their Lordships are clearly implying that what is required by section 149 is the certainty that five persons took part and not the conviction of five persons.

12. Now applying these principles and having already come to the conclusion that of the persons charged in this case the only ones who can safely be said to have been established to be present are Ruknuddin, Iqbaluddin and Fateh Mohammad alias Siraj that amounts only to three persons and if to them is to added the name of the absconder then also there would be only four. In the circumstances of the present case I cannot but think that a doubt as to the presence of the remaining four who were implicated necessarily results in a doubt as to the actual number of persons present. I have therefore come to the conclusion that section 149 will not apply in the present case and also of course to the conclusion that the convictions under section 148, P. P. C. are not sustainable.

13. I now address myself then to the question as to what offences the persons present would be guilty of. For this purpose it is necessary first to consider what would be the offence committed by the person who caused the injuries to the deceased if he could be identified. Now the deceased when he was alive was found to have the following injuries:‑

(1) Incised wound left ear cutting into whole thickness of pinna extending 1' back over the mostodregion 1' x x ".

(2) Compound fracture left arm.

(3) Compound fracture left ankle.

(4) Incised wound right leg 1' x ' x '.

(5) Haemotoma right foot "2 x 2'.

Of these injuries 2 and 3 were grievous in nature.

The deceased was actually discharged from hospital on the 23rd Decem ber 1968 but was re‑admitted on the 26th and the cause of his death is given pulmonary embolism. A post‑mortem examination was carried out on his body after his death which occurred on 15th of January 1969 and no definite opinion could be given that it was the injuries which resulted in his death and indeed out of the injuries that I have mentioned none was in the opinion of the doctor sufficient individually or in combination of any other to cause death in the ordinary course of nature. In these circumstances, the learned trial Judge held, quite rightly I think, that the offence in regard to the deceased was not one of culpable homicide but one of grievous hurt. Since no weapon answering to the description mentioned in section 326, P. P. C. was alleged to be used in the causing of the injuries which are grievous the offence would therefore be under section 325 of the Pakistan Penal Code. So far as the injuries on Umed Ali and Nasim Fatima are concerned they are clearly grievous injuries and the crime which resulted in them is purely one punishable under section 325, P. P. C. equally clearly the liability in respect of Mst. Mukhtar Bano is one under section 323, Pakistan Penal Code.

14. I have already stated my reasons for being unable to rely upon tie witnesses for the purpose of determining the specific parts played by each of the culprits, and the three persons whom I have named as person whose presence I regard as established must therefore be convicted, if convicted at all, by reason of the application of section 34, Pakistan Penal Code. In the entire circumstances of the case, I entertain no doubt that the persons who entered the house of the deceased upon the day of incident were motivated by a common intention, and that common intention was certainly not the causing of any thing less than grievous hurt, regard being had to the nature of the weapon which they were carrying and also the injuries which they eventually inflicted. I do not think that it is legally not permissible to apply section 34 of Penal Code at this stage and in fact in the Lahore case to which I have earlier made reference namely the case of Juma v. The Crown (P L D 1954 Lah. 783) a little after the passage which I have quoted the learned Judges observed:

"But even if it were held that the number of culprits were less than five I see no difficulty in applying section 34 of the P. P. C. to the case of Fazal Dad and Juma appellants."

I think it would be right therefore to convict the appellants Ruknuddin, Iqbaluddin and Fateh Mohammad alias Siraj for three different offences under section 325 read with section 34, Pakistan Penal Code in respect of the injuries on the deceased, Umed Ali and Nasim Fatima and under section 323 read with section 34 of the Penal Code in respect of the injuries on Mukhtar Bano. These were in fact the sections under which the learned Judge convicted them, except of course that he had recourse to section 149, rather than to section 34 of the Penal Code. But while in the case of the offences committed in respect of Umed Ali and Nasim Fatima he sentenced them to three years' rigorous imprisonment each, in respect of the offence of hurt to the deceased he gave them a sentence of seven years' rigorous imprisonment. I think the distinction is illogical; either they were liable for culpable homicide in respect of the deceased in which case they should have been convicted under section 302, or section 304, Pakistan Penal Code or their sentence should have been assessed under section 325, on the base of grievous hurt. No doubt seven years' rigorous imrisonment is a sentence which can legally be given under section 325, P. P. C: but in respect of the same offence the learned Judge is awarding three years in respect of the two witnesses and the only distinction that I can see between the witnesses and the deceased is that the deceased in fact died. I would therefore give a uniform sentence of three years' rigorous imprisonment for the offences under section 325. I see no reason in this case to award a sentence of fine also as the learned Judge has done.

15. In the result, therefore, I allow the appeal of the appellants Muhammad Ali and Puna, set aside their convictions and sentences and acquit them; they shall be set at liberty forthwith unless required in some other case. In regard to the appellants, Iqbaluddin, Ruknuddin and Fateh Mohammad alias Siraj, I alter their conviction to three separate counts under section 325 read with section 34, Pakistan Penal Code and under section 323, read with section 34, Pakistan Penal Code; for the former three offences. I alter their sentence to three years' rigorous imprisonment each and for the offence under section 323, award them six months' rigorous imprisonment. The sentences will run concurrently. With that modification their appeal is dismissed.

Order accordingly,

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