1. GHULAM RASUL K. SHAIKH, J.--These are appeals against the judgment of the learned Additional Sessions Judge, Larkana, convicting the appellants for an offence under section 302/34, P. P. C., and finding no extenuating circumstance sentencing them to death. This case is also before us on a reference under section 374, Cr. P. C. for the confirmation of the death sentence.
2. The incident had taken place on 5-6-69 at 9-30 p.m. on the road in the town of Larkana and the first report was lodged by Muhammad Moosa on the same day at 11-50 p.m. at the Larkana Police Station and it was recorded by Mr. Ghulam Muhammad S. H. O.
3. In this incident two persons Ali Hassan and his servant Nizamdin were killed. Badaruddin is brother of Ali Hassan deceased while Mohd. Ramzan is their maternal uncle and Mohd. Moosa is their cousin. Mohd. Hassan is relation and nekmard of Ali Hassan. Mazhardin is brother of Nizamdin.
4. Mohd. Kassim is not related to them. The appellants are neither related to the witnesses nor they are related inter se.
5. Mohd. Moosa is a lad of 16 summers while Badaruddin is a lad of 12 summers and they were Matric students studying in Municipal School at Larkana. Ali Hassan was running a Bidi Karkhana while Nizamdin deceased was his servant. Mohd. Hassan was a fish contractor and Mond. Kassim was a fish merchant.
6. About 15/20 days before this incident the appellants usedto tease Mohd. Moosa and asked him to keep friendship with them but they (sic) refused. They had told him on 2/3 occasions. He, therefore, made a complaint to Mohd. Hassan. On 5th June 1969, Mohd. Moosa and Badaruddin were returning to their houses after studying in Jinnah Bagh and on the way the present appellants met them near fish market. Anwer appellant caught hold of Mohd. Moosa but he rescued himself and ran away. Badaruddin also followed him. Both of them went running to Ali Hassan where Ali Hassan, Mazhardin and Nizamdin were present and the misbehaviour of the appellants was reported to them. Effort was made to contact Mohd. Hassan but he was not available. Thereafter at about 9-30 p.m. Mohd. Moosa, Badaruddin, Ali Hassan and Nizamdin while going towards the Empire Cinema passed by the shop of Akbar which was closed. There was an electric pole. There were hotels and shops near the cinema. The present appellants were found standing near the shop of Akbar. Ali Hassan asked the appellants as to why they had misbehaved with Mohd. Moosa whereupon the appellants abused them and made preparations to fight. Appellants Anwar Ali and Alibux took out the knives. Appellant Hidayatullah caught hold of Ali Hassan while appellant Dhanibux caught hold of Nizamdin. Then appellant Anwarali stabbed Ali Hassan with the knife while Alibux appellant stabbed Nizamdin. Each of them received two injuries. On receiving the injuries both fell down. On the alarm which was raised Mohd. Kassim and Ramzan came running, and they also witnessed the incident. Thereafter the appellants ran away leaving behind one knife, handkerchief and one shoe.
7. Both the injured persons were removed in a tonga to the civil hospital. On the way Nizamdin died and on reaching the hospital Ali Hassan also died. Mohd. Moosa went to Mohd. Hassan and informed him. He referred him to police. Consequently Mohd. Moosa went to the police station and lodged the first report.
8. Mr. Ghulam Mohd. S. H. 0. after recording the first report accompanied Mohd. Moosa to the scene of offence and it was visited in presence of Mashirs Abdul Karim and Sahib Khan. There was blood on the ground and the blood-stained earth was secured. One blood-stained knife, one handkerchief, one shoe and one blood-stained lathi were found lying there, and the same were secured and sealed, Mashirnama Exh. 18 was prepared. On the same night statements of Mazhardin, Badaruddin, Mohd. Kassim, Mohd. Ramzan, Mohd. Safar, Akbar, Ladho and Abdul Rashid were recorded. On the morning of 6th June the S. H. 0. visited the hospital and prepared the inquest reports of the dead bodies.
9. On 6th June 1969, appellant Hidayatullah was arrested from the Karkhana of Khan Mohd. and blood-stained shirt and trousers were secured from his person in presence of Mashirs Mohd.
10. Hassan and Mohd. Ramzan and sealed. At that time there were also some injuries on his person.
11. Mashirnama Exh. 13 was prepared. On the same day appellant Dhanibux was arrested from his house and blood-stained trouser was secured from his person in presence of the same Mashirs and sealed. Mashirnama Exh. 14 was prepared.
12. On 7th June 1969, appellant Alibux was arrested from his house and at that time he was wearing a blood-stained shirt and loin cloth which were secured in presence of Mashirs Mohd. Hassan and Pirbux and sealed. Mashirnama Exh. 16 was prepared. He had some injuries on his person. On the same day appellant Anwarali was arrested and blood-stained shirt and trousers were secured from his person in presence of Mashirs Mazhar Ali and Ibrahim and sealed. Mashirnama Exh. 24 was prepared. There were injuries on his person. He then took the S. H. 0. as well as the Mashirs Mohd. Hassan and Mazharali to the rice canal and pointed a place saying that he had thrown the knife there. Three divers got into the canal and searched out the knife. There was no blood on it as it appeared to have been washed. Mashirnama Exh. 14 was prepared. On the same day appellant Alibux was made to wear the shoe recovered from the scene of offence in presence of Headmunshi and 3rd Class Magistrate and it fitted him. Mashirnama Exh. 22 was prepared. Since appel-lants Hidayatullah, Anwarali and Alibux had also minor injuries they were sent to the hospital.
13. On 8th June 1969, statements of Lalu and Gul Hassan were recorded. On 9th June 1969, the statements of Mazhardin, Badaruddin, Mohd. Kassim and Mohd. Ramzan were recorded under section 164, Cr. P. C. On 17th June 1969, the appellants were challaned. The blood-stained clothes were sent to the Chemical Analyser and he discovered human blood on the knife secured from the scene of offence, clothes of appellant Hidayatullah, loin cloth of appellant Alibux and the earth while the blood on the remaining articles was disintegrated and, therefore, its origin could not be determined.
14. The appellants proclaimed their innocence and denied the various allegations. It was denied by appellant Anwarali that he had pointed out the place from where the knife was said to have been recovered. In the committal proceedings appellant Anwarali, Hidayatullah, Alibux when questioned about the presence of injuries on them and the recovery of the blood-stained clothes from their person replied that they would answer these questions in the Sessions Court. Similarly Dhanibux appellant when questioned about the recovery of the blood-stained trousers from his person stated that he would answer this question in the Sessions Court. When their statements were recorded under section 342, Cr. P. C. in the Sessions Court they seated that they had been beaten by the police and, therefore, they received the injuries. They did not examine any witness in defence.
15. The prosecution examined Ubedullah Head Constable, Mohd. Moosa complainant, Badaruddin, Mazhardin, Mohd. Ramzan, Mohd. Kassam, Mohd. Hassan, Abdul Karim Mashir, Mazharali Mashir, Mr. Ghulam Mohd. S. H. 0., Mr. Abdul Khaliq A. S.I.P. and Shafi Mohd. Tapedar while the evidence of Dr. Abdul Qaiyum recorded in the committal proceedings was brought on record.
16. The injuries on the various persons are borne out by the medical evidence. They had the following injuries : "Nizamdin.
17. (1)Injury No, 1.--One stab wound 1" x 1/3" x deep to the chest cavity situated 1" below and medial to the left nipple directed medically and upwards in its depth.
18. (2)Injury No, 2.--One incised wound 1" x 1/2" x scalp deep on the left parietal eminence."
19. According to the medical officer the injuries were caused by sharp-cutting weapon such as knife and were ante-mortem. The death was due to shock and haemorrhage as a result of the injuries. It was further stated by him that injury No, 1 was individually sufficient in the ordinary course of nature to cause death.
20. "Ali Hassan.
21. (1)One stab wound 1" x1/4" deep to the cavity on the lower part of chest-- (2)One stab wound 3/4" x 1/6" deep to the abdominal cavity with omentum protruding out on the left by hypochondrium."
22. According to the medical officer the injuries were ante-mortem and were caused by sharp-cutting weapon such as knife. The death was due to shock and haemorrhage as a result of the injuries which were collectively sufficient in the ordinary course of nature to cause death.
23. "Hiclayatullah.
24. One lacerated wound i" x 1/10" superficially scalp deep over the left parietal region."
25. The injuries had been caused by a hard blunt object such as an iron rod.
26. "Mohd. Anwar.
27. (1)One lacerated wound 4" x 1/6" skin deep above the left eye-brow.
28. (2)One lacerated wound 1" x 1/6" superficially skin deep on the right side of forehead near the mid line.
29. (3)One abrasion li" x 3/4" on the left illiac crest injuries were simple."
30. Injuries Nos, 1, 2 and 3 had been caused by some hard pointed object such as iron rod and No, 3 by hard blunt substance. All Bux.
31. (1)One lacerated wound 3/2" x i" superficially scalp deep on the right side of frontal region.
32. (2)One lacerated wound 3/4" x 1/3" superficially scalp deep on the mid line of frontal region.
33. (3)One abrasion 1/3" x 1/3" on the back of right elbow."
34. Injuries Nos, 1 and 2 were caused by hard pointed object such as iron rod and No, 3 was caused by blunt substance.
35. As regards the identity of the appellant with the crime the evidence is ocular as well as circumstantial. The ocular testimony consists of five witnesses and they are, Mohd. Moosa, Badruddin, Mazhardin, Mohd. Kassim and Mad. Ramzan.
36. Mohd. Moosa stated that the appellants were on friendly terms with each other and they used to tell him to keep friendship with them but he refused. He, therefore, made a complaint to his nekmard Mohd. Hassan. On the day of the incident at about 8-30 p.m. he and Badaruddin who was his class-fellow were returning to their houses after studying in the garden when on the way the present appellants met them. He further stated that appellant Anwar caught him by the arm and told him that they would not spare him. He struggled and succeeded in rescuing himself and took to heels. Badaruddin also ran away with him. Then they both went to Ali Hassan at his place of business and complained to him. At that time Mazhardin and Nazamdin were also present. Ali Hassan told Badaruddin to inform Mohd. Hassan but Bardaruddin came back and stated that Mohd. Hassan was not available in his house and was in the fish market. After this, he along with Nizamdin, All Hassan and Badaruddin went towards Empire Cinema and at that time it was about 9-30 p.m. They reached the shop of Akbar which was closed. They found the present appellants standing near the shop and they were identified on the electric pole light. Ali Hassan asked the appellants why they had quarrelled with Mohd. Moosa whereupon they became ready to fight.
37. Hidayatullah caught hold of Ali Hassan while Dhanibux caught hold of Nizamdin and then appellants Anwarali and Alibux stabbed All Hassan and Nizamdin respectively with the knives. On the alarm Mohd. Kassim, Ramzan and others arrived and they witnessed the incident. Thereafter the appellants ran away. Ali Hassan and Nizamdin were removed to the hospital but on the way Nizamdin died while Alibux died on reaching the hospital. He further stated that at the scene of offence knife, shoe and handkerchief of Alibux had fallen down. He went and informed Mohd.
38. Hassan and thereafter lodged the first report. In cross-examination he admitted that he had not stated in the first report that he had reported to Mohd. Hassan when the appellant had told him to keep friendship with him. He had also not stated in the first report that he and Badaruddin were returning after studying in the Jinnah Garden, nor he stated that Ali Hassan told Badaruddin to inform Mohd. Hassan or he went to Mohd. Hassan and he was not available. He denied that he had any knowledge that the appellants were standing near the shop before they proceeded to that side. He also denied that they had gone in search of the appellants. He further stated that they were going to the Police Station in order to complain against the appellants. A suggestion was made in cross-examination that appellants Hidayatullah and Dhanibux were not present at the scene of offence while the witnesses had attacked Anwarali and Ali Bux but this suggestion was repelled by Mohd. Moosa. He admitted that several persons had gathered at the scene of crime when the alarm was raised. He had not mentioned about the knife and the handkerchief in the first report.
39. Badaruddin is the next witness. His evidence is similar to the evidence of Mohd. Moosa, and, therefore, it is unnecessary to repeat it. He had denied his relationship with Mohd. Ramzan witness and Mohd. Hassan although he had admitted in the committal proceedings that Ramzan was his maternal uncle and Mohd. Hassan was related to him. He had not stated either in his police statement or in his statement under section 164, Cr. P. C. that they were going to the Police Station to make the complaint. He also denied that he was asked by Ali Hassan to inform Mohd. Hassan or he had gone to the house of Mohd. Hassan to inform him. In this connection it may be pointed out that the previous witness Mohd. Moosa has stated that Badaruddin was sent by All Hassan to inform Mohd. Hassan, and he had come back saying that Mohd. Hassan was not available in the house and had gone to fish market. The same suggestion was also made to him about the absence of two of the appellants and the assault on the other two and this suggestion was also denied by him. He had not stated either in the statement recorded by the police or under section 164, Cr. P. C. that the knife which had fallen on the scene of offence belonged to Alibux appellant.
40. The third witness is Mazhardin who was present with Ali Hassan and Nizamdin when the two boys had gone and made complaint to them against the appellants. His further evidence is the same and he has fully supported the prosecution. However, he stated that they were going to Mohd.
41. Hassan towards fish market when near the shop of Akbar the incident had taken place. He was confronted with his statement recorded under section 164, Cr. P. C. in which he had stated that they were going to Hidayatullah and others. Here it may be mentioned that Hidayatullah is one of the appellants. He had not stated either in his police statement or his statement recorded under section 164, Cr. P. C. that Badaruddin was deputed by Ali Hassan to inform Mohd. Hassan. The suggestion which was made to the previous two witnesses with regard to the absence of the two of the appellants and the assault on the other two was also denied by him.
42. The fourth witness Mohd. Ramzan stated that at about 9-30 p.m. he was standing in front of the Empire Cinema as he had gone there to purchase bidis and give rounds (sic). He found Nizamdin, Ali Hassan, Mohd. Moosa and Badaruddin going towards the fish market. They had no weapon. He followed them as he had also to go towards the same direction. He further stated that near the shop of Akbar he found the present appellants standing. The shop was closed at that time. There was electric pole light at that spot. He continued that Ali Hassan inquired from Anwar All appellant as to why they had quarrelled with Mohd. Moosa and on this Anwar Ali abused All Hassan, then appellant Hidayatullah caught hold of Ali Hassan by his arm and appellant Anwar Ali took out the knife and stabbed Ali Hassan twice as a result of which All Hassan fell down. Dhanibux caught hold of Nizamdin while Alibux took out a knife and stabbed Nizamdin who also fell down. Cries were raised which attracted Mohd. Karim and other persons. The appellants after inflicting the injuries ran away. One knife, one shoe and one handkerchief of the appellants had fallen down. They carried Nizamdin and Ali Hassan in a tonga and took them to the civil hospital but on the way Nizamdin died while Ali Hassan died on reaching the hospital. Mohd. Moosa was deputed to inform Mohd. Hassan and also to lodge the report. He denied that Badaruddin was his nephew. He also denied that the witnesses had inflicted any injury upon the appellants. Nor he had seen any injury on them.
43. The fifth witness is Mohd. Kassim. He stated that about 9-30 p.m. he was standing in front of Empire Cinema when he heard the noise from the side of the shop of Akbar. He therefore went running and found appellants. Hidayatullah and Dhanibux having caught Ali Hassan and Nizamdin respectively and then appellants Anwar Ali and Alibux stabbing those two persons with the knives respectively.
44. Both the injured fell down and the appellants escaped. One knife, one handkerchief and one shoe of the appellants had failed down there. Then Moosa, Badaruddin and Ramzan took away Nizamdin and Ali Hassan to the hospital in a tonga. He returned to his own house. He had found 10 persons at the scene of offence and they were the witnesses and the appellants. He did not know the cause and origin of the fight. He further stated that the witnesses did not inflict any injury upon the appellants nor he had seen any injury on them.
45. Then is the evidence of Mohd. Hassan who stated that he was the nekmard of the witnesses. At about 10 p.m. Mohd. Moosa came to him when he was in his house and informed him that he, Mazhardin, Badaruddin, Nizamdin and Ali Hassan were going on Empire Cinema Road when appellant Hidayatullah caught hold of Ali Hassan and appellant Dhanibux caught hold of Nizamdin and they were stabbed by appellants Anwarali and Alibux respectively by the knives and then they ran away. He further stated that he was also informed that Nizamdin had died on the way while Ali Hassan had died on reaching the hospital. He, therefore, directed Mohd. Moosa to lodge the report. Thereafter he went to the civil hospital and found the two dead bodies there.
46. At the outset it may be stated that the learned counsel for the appellants did not challenge the incident and the manner in which it took place as well as the participation of all the four appellants in this crime but what they emphasised was that the appellants had acted in the exercise of the right of private defence, as they had been attacked by the witnesses on account of the previous incident in which Mohd. Moosa was caught hold of by appellant Anwar Ali, and further the case of appellants Dhanibux and Hidayatullah was distinguishable as neither they had any weapon nor they had inflicted any injury and they had no knowledge that the other two appellants had knives or would stab the two deceased persons and it was also a case of sudden fight and the injuries had been Inflicted on the spur of the moment and there was no talk between the appellants before the assault and, therefore, the latter two appellants could not be held to be guilty of any offence.
47. Despite the concession made by the learned counsel for the appellants we would like to examine the evidence in order to satisfy ourselves whether the complicity of the appellants had been established or not. The contentions which had been raised by the learned counsel would then be examined in the light of the evidence and the discussion.
48. We have gone through the entire evidence and on its appraisal we see no reason to disagree with the conclusions reached by the learned Additional Sessions Judge. Nothing had been brought on record to discredit the testimony. Of course Mohd. Moose, Badaruddin, Mazhardin and Mohd.
49. Ramzan were related to each other, but the relationship as has been, settled, is by itself no ground to reject the evidence. Their presence at the time of this incident cannot be doubted. They had accompanied the injured persons to the hospital. After reaching the hospital when both the injured persons had died Mohd. Moosa immediately went to Mohd. Hassan and then he proceeded to the Police Station and lodged the report. Muhammad Kassim is an independent witness and he had no reason to falsely depose against the appellants. Of course he was a fish merchant while Muhammad Hassan was a fish contractor but it does not establish that they had any connection with each other or on that account Muhammad Kassim would falsely support the prosecution.
50. Muhammad Moosa, Badaruddin and Mazhardin were going with the deceased while Muhammad Ramzan and Muhammad Kassim were attracted by the commotion which was raised as a result of the murderous assault.
51. The next piece of evidence against the appellants Alibux, Anwarali and Hidayatullah is the recovery of blood-stained clothes from their person. This recovery has been established by the evidence of Muhammad Hassan Mashir and the Investigating Officer corroborated by the Mashirnamas prepared to that effect. Subsequently these clothes were sent to the Chemical Analyser who detected human blood vide his report Exh.
26. The explanation of the appellants that the blood had appeared on their clothes on account of the injuries which had been received by them does not appear to be true. In the committal proceedings when they were questioned they declined to answer and stated that they would give the answers in the Sessions Court. Thus the version of the appellants is belated and can be given no credence.
52. Another piece of evidence against the appellant Alibux is that the shoe recovered from the scene of offence fitted him. To establish this there is the evidence of Hamidali Mashir. This test had taken place in presence of Headmunshi and 3rd Class Magistrate who had prepared the Mashirnama Exh. 22, and it bears his signature. The fact that the shoe fitted the appellant cannot be an unhappy coincidence. In the circumstances of the present case it is not possible to accept his denial.
53. There is another piece of evidence against appellant Anwar. He took the police and the Mashirs to the rice canal and pointed a place from where the divers had brought out a knife. This recovery has been established by the evidence of the Mashir as well as the investigating officer corroborated by the Mashirnama. Of course the knife was not stained with blood but the knife was found from a place which could not be known unless the appellant himself had thrown it there. There is also the prosecution allegation that he had stabbed one of the deceased persons which leads to the conclusion that this was the knife which was used by him in the commission of the crime. The appellant cared to offer no explanation. His case is of bare denial which cannot be accepted. In this connection it may be pointed out that the learned Additional Sessions Judge entertained the view that because of the absence of the blood on the knife it was not established that this was the knife which was actually used by the appellant but for the reasons which we have stated we are unable to bear with him.
54. The learned Additional Sessions Judge also relied upon the recovery of the knife from the scene of offence and accepted the evidence of the witnesses that this knife was used by Alibux appellant bat in view of the earlier statements of the witnesses wherein no allegation was made that Alibux had thrown the knife there we are unable to place any reliance upon it.
55. Lastly, there is the presence of injuries upon Alibux, Anwarali and Hidayatullah as established by the medical evidence. However, the evidence on record does not indicate that these injuries had been received by the appellants during the fight. None of the prosecution witnesses claimed to have inflicted any injury upon the appellants. They even denied that they had seen any injury on them. The appellants too did not allege that they had received those injuries during the fight. Thus the presence of the injuries on the appellants cannot be availed of by the prosecution.
56. On the appraisal of the evidence, we have no hesitation in holding that all the four appellants participated in the assault which resulted in death of two innocent and defenceless persons. The observation of their Lordships of the Supreme Court in one of the reported cases, which reads, "the number of persons accused is not out of proportion to the nature of their enterprise E and the result they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed as against mere plea of false implication on the part of the accused persons," is equally applicable to the present case.
57. The next question that arises for consideration is whether the appellants acted in exercise of the right of private defence. This must be answered in the negative. To support the plea of self-defence reliance was placed mainly on the presence of the injuries on the appellants. We have already noted that no evidence is available on record to indicate that the appellants had received the injuries during the encounter. It was, however, urged that in an armed clash between the parties there is common tendency that each party tries to suppress its own part and represents, itself as being innocent of the responsibility for the clash and also denies having caused any injury to the opposite-party while agreeing that it is not unusual to find such a tendency in the clashes between two armed groups but no such conclusion can be reached on mere conjectures and surmises.
58. There must be some evidence indicating the display of such a tendency. Apart from the injuries, no evidence has been pointed out. The appellants themselves were not prepared to admit that there was an encounter and they received the injuries during the course of that encounter.
59. It was also hinted by the learned Assistant Advocate-General that it was possible that the appellant at first planned to file a false counter-case and to support it they manipulated the injuries which were quite trivial but later they decided against it finding that the persons upon whom they had inflicted the injuries had died soon after the incident. Examining this possibility in the light of the medical evidence, it would be found that the injuries on the appellants were as a result of two kinds of weapons viz. pointed iron rod and blunt weapon. No such iron rod was found anywhere. One blood-stained stick was found there. There is no allegation made by either side that any stick was used. It was an ordinary lai stick. The possibility that it was already lying at the scene of crime and it was stained with the blood of the deceased persons cannot be excluded. This finds support from the opinion expressed by the medical officer. He eliminated the use of stick. He stated that the injuries could not have been caused by a stick but were caused either by fall or by brick- bats.
60. The evidence does not disclose that either the deceased or the witnesses carried any weapon. Nor they were expected to carry any. Of course the claim of the witness that they had set out to inform Muhammad Hassan or make a complaint to police is doubtful as there is an indication in the evidence of Mazhardin that on account of the previous incident they were going to Hidayatullah and others and this was a clear reference to the appellants but that does not necessarily mean that they had decided to punish them and with that view they had left to have a contact with the appellants. The confrontation by use of force does not appear to have been designed. It seems that the deceased and the witnesses had gone simply to express their disapproval and remonstrate with the appellants but it is unfortunate that the appellants behaved like bully and used force. In case the deceased's party had gone prepared to attack the appellants, the result would have been altogether different. Giving due weight to the tally of the injuries sustained by each party, it is scarcely possible to come to the conclusion that the appellants were subjected to a planned attack by the deceased's party numbering at least five persons. During the cross- examination suggestion was made to the witnesses that they had attacked two of the appellants and the other appellants were not present. Not only this suggestion was repudiated by the witnesses but even this was not supported by the appellants themselves in their statements either in the committal proceedings or in the state Sessions Court. No witness was called and the suggestion remained unsubstantiated. Indeed the benefit of the right of private defence can be claimed by an accused person even though Raw K. no such plea is raised but in order that it may be availed of Shaikh, J there must be supporting circumstances. In the present case G we have not been able to discover any. Bearing in mind the physical facts and the surrounding circumstances, in particular the inquality of the injuries, we cannot bring ourselves to accept the contention that either the deceased's party had gone to launch a determined attack or the appellants acted in exercise of the right of private defence.
61. Thus the case of appellants Anwar Ali and Alibux needs no further treatment. They had caused the fatal injuries without any justification or provocation. The deceased and their companions had done nothing to arouse the passion or provoke the assault. None of them had any weapons. The appellants on the contrary carried knives. The appellants, therefore, took undue advantage of the situation and acted in a cruel and unusual manner. The intention can be inferred from the nature of the weapon used, the nature of the injuries caused and the result produced. Not only the injuries inflicted were sufficient in the ordinary course of the nature to cause the death but both the victims died soon after. One died on the way to the hospital while the other died on reaching the hospital.
62. The distance between the scene of offence and the hospital, as we know, is hardly one mile.
63. Consequently both these appellants are guilty of an offence of murder falling under section 302, P.
64. P. C.
65. As regards the appellants Hidayatullah and Dhani Bux, their liability depends upon the answer to the questions as to what extent their act contributed towards the commission of the crime and whether they shared the common intention with the other two appellants who had inflicted the fatal injuries. It was urged on their behalf that the encounter was sudden as the appellants did not expect the deceased's party would follow their track or there would be any fight and consequently every appellant acted of his own and not in concert, it therefore, followed that the intention of the two appellants in capturing the deceased persons was merely to grapple with them and this was not done in aid of killing.
66. To charge a person for sharing common intention with another, ordinarily common intention presupposes prior concert but it may well develop at the spur of the moment, either immediately before the commission of the offence or during its commission depending upon circumstances of each case. It is difficult to procure direct evidence to prove the intention of an individual and, therefore, it has to be inferred from the act or conduct of the participants or other relevant circumstances of the case.
67. In order that the implication of the part played by appellants Hidayatullah and Dhanibux may be appreciated it is necessary to consider the rule of law laid down by the various sections of the Penal Code in respect of the participation of more than one person in the commission of a crime.
68. Section 34 reads, "when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". In the preceding section 33, the word 'act' denotes not only a single act but also a series of acts. In this connection the Privy Council in the case of Barendra Kumar Ghose v. Emperor , observed, "In other words 'a criminal act' means that unity of criminal behaviour, which results in something for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence." Similarly, by virtue of section 35, the responsibility is shared by each of the participants individually if the act which is criminal only by reason of its being done with a criminal knowledge or intention is done by each person sharing that intention or knowledge, section 37 deals with the case of the persons who co-operate in doing of several acts which together constitute a sing1e criminal act and thereby each is liable for that crime. Section 38 does not talk of common intention or knowledge and, therefore, according to this section even though several persons may do a single criminal act yet the responsibility vary according to the degree of their participation.
69. The aforesaid rule was discussed by the Privy Council in the above quoted authority (AIR 1925 P C 1) as under :- "By section 33 a criminal act in section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crime as in other things 'they also serve who only stand and wait'. By section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them, himself, for 'that act' and "the act" in the latter part of section must include the whole action covered by 'a criminal Act' in the first part, because they refer to it. Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished. For the commission of the offence. Section. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
70. Thus the whole of the result perpetrated by several offenders, is attributable to each offender, notwithstanding that individually they may have done separate acts, diverse or similar. provided there is common intention. In other words, section 34, when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole but to the criminal act, that is to say, the totality of the series of acts which result in the offence. It therefore, follows that where several persons with a common intention assault another person, every one of those persons renders himself liable for the result which has ensued, although the individual act of each independently may not be sufficient to produce that result. It is, therefore not necessary to find that the person participating actually struck the fatal blow or any blow but the section envisages the jointers of action translating the intention, commonly held, into effect.
71. Indeed, it goes without saying that in the absence of common intention. every one taking part in the criminal act would be liable for his own act as laid down by section 38 irrespective of the result produced by the acts of different persons who had participated.1 In order to determine the criminal liability of the two appellants ; namely, Hidayatullah and Dhanibux in the light of the aforesaid discussion, we may pen down here the salient features of the case as revealed by the evidence. All the four appellants were said to have been teasing the boy since several days. Some time before the incident when he and his class-fellow were returning home, he was caught but he managed to rescue himself and escaped. He complained to his elders. It is evident that they set out to remonstrate with the appellants and found them standing near a shop which was closed. On the protest having been made there was a brief altercation and all the four appellants became furious ready to fight. Two of them drew knives while the other two seized the deceased persons by their arms, presumably from the back, or side which receives confirmation from the location of the injuries, and then in quick succession fatal wounds were caused. The victims fell down while the appellants took to flight and escaped. Shortly afterwards, both the victims died.
72. Turning to the defence plea, it was urged that the two appellants who had inflicted the injuries, pulled out the knives on the spur of the moment and their use of them thus was their individual act suddenly taken which could not be described as joint act of all the appellants. We have given our consideration to it and we find no force in it. Having regard to what had happened before and after as well as the part played by appellants Hidayatullah and Dhanibux, the use of the knives cannot be treated to be the individual act of those two who used the knives. The evidence of the witnesses is consistent and precise. It reveals that all the four appellants made preparation to fight.
73. Two of them pulled out their knives and this was a clear pointer to their intention. On seeing the knives having been drawn, the other two were not slow to act to offer the aid which was needed to facilitate the murderous assault. Like a flash they pounced upon the victims, grabbed them by their arms and held them tight in their grips, thereby the victims were rendered incapable of offering any resistance to the attack or at least to save themselves from being hit on the vital parts. It is, therefore, obvious that the two appellants while deciding to capture the victims, did not enter the arena to display a wrestling bout or simply to grapple as was urged.
74. What is singular is that two appellants engaged themselves in rendering the victims powerless and the other two fatally stabbed them, there is a possible thinking that all the four appellants had already decided to follow that course, on seeing deceased party coming. At any rate, when two appellants took out knives and the other two proceeded to capture them in a manner to facilitate the murderous assault, this is a sufficient indication that they were actuated by a common intention to commit the crime and from that moment at least, the common intention can be inferred. It can, therefore, be safely presumed that all the four appellants acted in concert with an intention to assist each other in inflicting the injuries and bring about the result which could only be achieved by all of them acting in concert. In view of the presence of the other persons who were likely to intervene, this task had to be accomplished in the shortest possible time. The injuries were caused in quick succession. The stabbing, therefore, was not an isolated act of only two nor it can be divorced from the part played by the other two. In other words, all the four appellants associated themselves in the act of killing and this was, therefore, the common intention of all.
75. In the circumstances the guilt of all the four appellants has been fully established and they were rightly convicted. We, therefore, maintain their conviction. As regards the sentence. appellants Muhammad Anwar and Alibux had caused the fatal wounds with determination and without any provocation and the suddenness of the assault in the circumstances of the present case does not serve to provide any justification for altering the sentence. We, therefore, confirm the sentence of death passed against them and dismiss their appeal. So far the other two appellants Hidayatullah and Dhanibux are concerned they had not caused any injury and although this does not reduce their liability but it can be considered as a mitigating circumstance in the matter of sentence. We, therefore, commute their sentence to transportation for life and with this modification, their appeal is dismissed. A I P 1925 P C 1