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Criminal Appeal No. 4 of 1952, decided on 28th October 1952.

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 24th May 1951, in Criminal Appeal Case No. 136 of 1951 and Murder Reference Case No. 35 of 1951),

S.149‑Charge under Ss.302/149, P. P. C.‑Two necessarily fatal injuries ascribed in evidence one to each of two accused‑Both accused could be rightly convicted either individually of murder or by the application of S. 34, P. P. C. although they were not charged with same.

Where six persons were placed on trial under sections 302/ 149. P. P. C. and the evidence showed that two of the accused each caused at least one necessarily fatal injury to tire deceased:

Held, that each of the two accused could rightly be convicted either under section 302, P. P. C. individually, or under section 302 read with section 34, P. P. C., although they were not charged under section 302, P. P. C. either individually, or read with section 34, P. P. C.

Barendra Kumar Ghosh I L R 52 Cal. 197 and Bhondu Das's case I L R 7 Pat. 758 rel,

Mahbub Shah's case 72 Ind. App. 148 explained.

Jamil Hussain Rizvi, Advocate, Federal Court for Appellants.

S. A. Mahmud, Advocate, Federal Court, instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 28th October 1952.

This is an appeal by special leave granted to Sardar Ali and Abdul Sattar against a decision of a Division Bench of the Lahore High Court, whereby the conviction of each of the appellants under section 302, P. P. C. was affirmed, and the sentences of death awarded to them by the Sessions Judge were also confirmed.

Originally, six persons were placed on trial before the Sessions Judge of Gujranwala, on charges of rioting punishable under section 148, and of murder and simple hurt committed while being members of an unlawful assembly in prosecution of the common object of the said assembly viz. " to murder Bahadur Singh alias Zafarullah Khan and to cause injuries to Muhammad Aslam, Allah Ditta and Gulab". The trial Judge appears in the main to have accepted the case based upon the evidence of three alleged eye‑witnesses, namely, Allah Ditta, Muhammad Aslam and Ghulab, who bore injuries which where believed to have been received in the course of the same incident as the fatal injuries of the deceased, Zafrullah, that the incident commenced with a quarrel between one of the accused persons named Imdad, and the eye‑witness Allah Ditta, and the five other accused persons joining Imdad, and Allah Ditta having two men with him, namely, Aslam and Gulab, dang blows were exchanged to start with. Of the accused persons it was said that one named Ghaffar had a kirpan, while the present appellants, Sardar Ali and Abdul Sattar each had a knife. Zafrullah being in the vicinity on a private occasion of his own tried to save Allah Ditta, who was a partition of his, by interferring in the fight. As it happened, a number of the assailants had deep‑seated grievances against Zafrullah and the three persons who had incised weapons, namely, Abdul Ghaffar, Sardar Ali and Abdul Sattar, immediately assaulted him. The trial Judge did not believe the eye‑witnesses in so far as they alleged that 'Abdul Ghaffar caused a wound on the left arm of the deceased with a kirpan. There were in addition four other incised wounds on Zafrullali's person, namely, an incised wound 4" x 2 " x 1 " on the right side of the chest, another 4" x 1 " on the middle of the chest under which the cartilages of four ribs were found to have been out through, another large wound 7" x 3" on the right side of the abdomen through which a coil of intestine had escaped, and the fourth 6" x 4" on the left side of the abdomen through which, the spleen as well as a coil of intestine had burst out. In the opinion of the doctor, the three last mentioned injuries were each individually of a fatal nature and death was the result of the cumulative effect of all these injuries, The trial Judge accepted the evidence of the three eye‑witnesses that Sardar Ali struck two knife blows on the right side of Zafrullah's body while Sattar struck him a knife blow in his stomach. On this evidence, he held that each one of them was guilty of the offence of murder individually. The grounds for this finding are stated in the following words :‑‑‑

" It has been admitted by Dr. Muhammad Sharif that injuries Nos. 2, 3 and 4 were jointly and individually fatal. The injuries were given with great force. They were given by a dangerous weapon. They were struck at a vital part such as the chest and the abdomen of the deceased. The strikers, therefore, had every reason to know that what they were doing, was going to be necessarily fatal. The intention is to be judged by the action. The offence of these two accused falls under the definition of murder as given in clause (3) of section 300, P. P. C."

The clause referred to provides that culpable homicide is murder, " if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death ".

It is not necessary for the purposes of this discussion to state the facts regarding the part taken in the incident by the other accused persons of whom only one was convicted, namely, Imdad under section 323, P. P. C. for simple hurt caused to Allah Ditta, Aslam and Gulab. His appeal to the High Court was also dismissed.

In the High Court, the evidence of the eye‑witnesses was believed to so far as it related to the participation of Sardar Ali and Abdul Sattar in the attack on Zafrullah, as well as in relation to the liability of Imdad Ali. The learned Judges have held as follows regarding the liability for the death of Zafrullah :‑‑‑

" On the evidence we find that both Sardar Ali and Abdul Sattar attacked Zafrullah with knives, intending to kill him and that they caused several injuries on his person which led to his instantaneous death. Even, therefore, if section 149, Penal Code, may not be applicable and we think the learned Sessions Judge was not right in holding that it did not apply, section 34 of that Code was applicable and the offence committed by both these appellants is murder."

The learned counsel appearing on behalf of the appellants accepted the findings of the Courts below regarding the acts performed by Sardar Ali and Abdul Sattar, and confined himself to the argument that since the appellants had been charged with murder committed in the course of prosecution of the common object of an unlawful assembly, which was to murder Zafrullah Khan and to cause hurt to Aslam, Allah Ditta and Gulab the trial Judge was not entitled to convict each of them individually of an offence punishable under section 302, P. P. C., and he further contended that it was not open to the High Court to employ the provisions of section 34, P. P. C. for the purpose of making the appellants jointly liable for the death of Zafrullah.

On the findings which have been accepted by the Courts below, it is obvious that each of the two appellants caused at least one necessarily fatal injury to the deceased in the course of a simultaneous attack upon him made with knives, in almost identical fashion. It is not easy to conceive of a case which would lie more plainly under section 34, P, P. C., even if the facts were slightly different, i e., that, assuming no single injury was individually fatal, the injured person died of the cumulative effect of all the injuries thus inflicted, which was necessarily fatal. The element of participation in action which is the leading feature of section 34 (to employ the language of Lord Summer in the leading case of Barendro Kumar Ghosh (I L R 52 Cal. 197), would clearly be present, and there would also be "joint action by the commission of identically similar Criminal Acts". 1n that case Lord Summer observed as follows :‑

" if section 34 was deliberately reduced to the mere simultaneous doing in concert of identical criminal acts, for which separate convictions for the same offence could have been obtained, no small part of the cases which are brought by their circumstances within participation and joint coma‑fission would be omitted from the Code alto gether."

Even in the most restricted view of section 34, P. P. C. it covers " the mere simultaneous doing in concert of identical criminal acts", and we are, therefore, entirely in agreement with the learned Judges of the Lahore High Court when they say that section 34 is applicable to the determi nation of the guilt arising out of the joint attack by Sardar Ali and Abdul Sattar upon the deceased, Zafrullah. But we consider that on the 'facts found, namely, that in a joint attack made simultaneously, with similar weapons, namely, knives, upon the deceased, Zafrullah, each of the appellants inflicted at least one necessarily fatal injury and the death of Zafrullah ensued almost immediately thereafter, the separate conviction recorded against each of them of the crime of murder by the trial Judge is amply supported by the dictum of the Privy Council, quoted above, and cannot be called in question on any plausible grounds.

In this view of the matter, it is not necessary to consider in detail the principles enunciated by the Privy Council iii the case of Mahbub Shah (72 Ind. App. 148) which was cited before us for the Appellants. With reference to the expression "common intention" as used in section 34, P. P. C., their Lordships thought that it "implies a pre‑arranged plan" and an accused person cannot be convicted in respect of a Criminal Act, by application of this section unless such act was done "in concert pursuant to the pre‑arranged plan".

In that case, two persons namely, Mahbub Shah and Wali Shah each armed with a gun, were found to have gone to the rescue of a relation of theirs named, Ghulam Qausim shah, who was being subjected to an assault by one Allah Dad. Allah Dad and his companion Hamidullah Khan attempted to run away, but Wali Shah and Mahbub Shah came in 'front of them and Wali Shah fired at Allah Dad who fell down dead and Mahbbb Shah fired at Hamidullah causing injuries to him. Walt Shah absconded and Mahbub Shah was put upon his trial and convicted of the offence of murder in relation to the death of Allah Dad, by the application of section 34, .P. P. C. Their Lordships considered that Wali Shah and Mahbub Shah had a common intention viz., to rescue Ghulam Qasim Shah; if need be by using their guns, but there was no common intention as between Wali Shah and Mahbub Shah in respect of the murder committed by Wali Shah. It seems unfortunate. that an argument presented before the Judicial. Committee on behalf of the Crown viz., that immediately before the firing of the shots, Mahbub Shah and Wali Shah performed a. joint manoeuvre, i.e., that seeing that Allah Dad and Hamidullah were trying to run away, they quickly placed themselves in such a position as to intercept. the .fugitives, was ,not ,the a ground of reliance' at an earlier stage of the case. . Their Lordships pronounced a caution against confusing "same or similar intention" with "common intention" and considered that in the circumstances of the case, it was not possible to hold that a common intention as between Wali Shah and Mahbub Shah was a necessary inference.

Their Lordships have used no words in their judgment indicate that, in their view, "a pre‑arranged plan", such as they considered should underlie common action with a common intention, for the purposes of section 34, P. P. C., should be proved by direct evidence, nor is their any observation by their Lordships to suggest that a conclusion of a common intention cannot be drawn from the proved circumstances. There are no words in their judgment which exclude the possibility of a common intention developing in the course of the events which constitute the incident as a whole, although such intention may not have been present in the mind of any of the culprits at the commencement of the incident.

Consequently, the case cannot be held to over‑rule such a view as that expressed by Courtney Terrell, C. J. in the case of Bhondu Dos (I L R 7 Pat. 758), in the following words:‑‑‑

"It has been proved that the accused Bhondu Das being present and armed with a deadly weapon gave an order to other persons armed with deadly weapons to assault the complainant. It is true that there is missing the element of an unlawful common object ii the assembly as a whole which would be required to convict the accused persons under section 326 read with section 149 but the accused formed an assembly within a widder assembly which smaller assembly had a common intention to cause grievous hart and the complainant suffered injury at their hands. All the necessary ingredients for a conviction under section 326 read with section 34 were present before the Magistrate and the Sessions Judge to support the charge under section 326 read with section 149 though the further ingredients of an unlawful object common to the assembly .as a whole was wanting".

The present case bears obvious resemblance to the facts of the case before the Patna High Court. We express our agreement with the view of the learned Chief Justice that :‑

"the real test of whether a conviction can be upheld upon a charge which was not expressly formulated, is whether the facts which it was necessary to prove and on which evidence was given on the charge upon which the accused is actually tried are the same as the facts upon which he is to be convicted of the substantive offence. If they are and if the accused is put to no disadvantage and would have had to adduce no further evidence, then he may be rightly convicted of the substantive offence notwithstanding that the charge was originally framed under sect on 147, 148 or 149".

WE entertain no doubt that on this view, the conclusion arrived at by the trial Judge, viz., that each of the appellant was individually guilty of murder was one which, on the proved facts, he was competent to reach, notwithstanding 4 that the charge preferred against them, in respect of the murder, was under section 302 read with section 149 P. P. C, As we have already indicated, the view of the learned Judges of the Lahore High Court, viz., that the accused persons con be held to be guilty of murder by the application of section 34 P. P. C. is based on a correct appreciation of the principle contained in the latter section, although in the circumstances of the present case, it would appear unnecessary to invoke that principle for the determination of the criminal liability of each of the appellants. We accordingly dismiss this appeal.

A.H. Appeal dismissed.

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