1. SHAH ZAMAN BABAR, J.--Mohib Gul, aged 40 years, resident of village Manga, District Mardan, was charged under sections 379/34 and 302/34, P. P. C. in that on 2-7-1966, at about 11 p. m. in village Manga, he in furtherance of his common intention with the absconding accused Lalzada and Haji Mohammad, committed the theft of Rs, 500 and also committed the murder of Mania Bakhsh.
2. Mohib Gul was tried by the Additional Sessions Judge, Mardan, who by his judgment dated 24-7- 1969 found him guilty of both the offences. He convicted Mohib Gul under section 302/34, P. P.C. and sentenced him to transportation for life. He also convicted him under section 379/34, P. P. C. and sentenced him to undergo two years' R. I. Both the sentences were ordered to run concurrently.
2. Mohib Gul convict has come up on appeal.
3. Manta Bakhsh deceased was a brother of Gulab (P. W. 8) and Abdul Ghafur (P. W. 11).
3. Rehmatullah (P. W. 9 ) and Ghulam Hussain, both brothers inter se, are the sons of their aunt "phupi". P. W. Abdul Ghafur, son of Allandad (not examined), is the son of their maternal uncle. All the 6 originally belong to Marijalwal, District Campbellpur. All the six were partners/ hawkers in sale of old and new aluminium utensils, and would move about in villages in connection with their business. On 2-7-1966 at about sunset time the six partners reached village Manga. They camped in an open site outside the village. As usual, they collected their earnings, which amounted to Rs,
500. P. W. Gulab gave the money to his brother Abdul Ghafur for safe custody. Abdul Ghafur put the money in a purse which he placed in his militia jacket. Abdul Ghafur put the militia jacket into his small bag containing a Iota, kettle and degchi. This bag was put under his head by Abdul Ghafur.
4. The other old and new utensils were put in two separate bags. The two bags were placed in the centre while the six partners slept around the two bags in the open site. It was a moonlit night.
5. During the night at about 11 p. m. Abdul Ghafur shouted that there was thief. The other companions of Abdul Ghafur wcke up. They saw three thieves running towards the east. All of them followed the three thieves. Two of the thieves were ahead of the third P. W. Ghulam Hussain approached the third thief (Mohib Gul appellant, who was armed with a S. B. shot-gun) gave him a blow with his lathi and felled him down. This thief shouted to his other two associate thieves that the Punjabis had beaten him. Hearing this one of the two fleeing thieves fired a shot at the pursuers. The shot hit and injured Maula Bakhsh. The shot-gun Exh. P. 1, and two cartridges Exh. P. 2 were recovered from the appellant. On search of the bag, which was placed under the head of Abdul Ghafur, it was found that the amount of Rs, 500 was missing. The captured appellant was taken to the village and handed over to Qamardin (P. W. 6). The latter shut the appellant in a kotha P. W. Rehmatullah kept guard over the appellant. A tonga was arranged in which Maula Bakhsh injured was taken to Police Station Saddar Mardan, distant about 8 miles from the site of the occurrence. Maula Bakhsh lodged his reportcum-dying declaration (Exh. P. A.) on 3-7-66 at 3-00 hours. The report was scribed by Akbar Hayat S. H. 0. (P. W. 12) Police Station, Saddar. Maula Bakhsh was allegedly in senses when he lodged the report.The S. I. prepared the injury sheet (Exh. P. G /1) of Maula Bakhsh and sent him to the hospital. He then set out for the spot. He found the appellant shut in the Hujra of P. W. Qamardin, and took him into his custody vide Memo. Exh. P. E. The appellant bore some injuries on his person, and so the S. 1. prepared his injury sheet Exh. P. L. and sent the appellant for medical examination. P.
6. W. Rehmatullah produced the unlicensed gun Exh. P. 1 and cartridges Exh. P. 2, allegedly recovered from the appellant, to the S. I. The I. 0. took them into possession vide Memo. Exh. P. C. P. W. Ghulam Hussain produced the lathi Exh. P. 3, which the S. I took into possession vide Memo. Exh. P. D. The S. I. then prepared the site plan Exh. P. B. Point 1 on the site plan indicates a barren site on which the deceased and his companion P. Ws. had slept on the night of occurrence. Point No, 2 represents the place where P. W. Ghulam Hussain had given a lathi blow to the appellant and the appellant was caught hold of with a gun. The distance between points 1 and 2 is 29 yards. Point No, 3 represents the place from where the two fleeing offenders had fired at Maula Bakhsh effectively. This point is 22 yards from point No,
2. Point No, 4 depicts a place where the house of Muhib Gul appellant and Lalzada absconder is situated, at a distance of 550 yards from point 1. Lalzada and Haji Mohammad, the alleged other thieves are still absconding.
4. Dr. Syed Johar Shah examined Maula Bakhsh, aged 25 years, then in injured condition, on 3-7- 1966, at 4 a. m. and found the following :-
(1) A fire-arm wound of entrance; 11" x r x muscle deep on the left buttock at the lateral surface at the level of iliac crest interior part.
7. I he wound had no exit. The nature cf the injury was opined to be dangerous caused by firearm within a duration of 5 hours.
8. Maula Bakhsh was admitted in the hospital for treatment. He succumbed to his injuries in the hospital on 5-7-1966 at 12 p. m.
9. The same doctor held the autopsy on the dead body of Maula Bakhsh on 6-7-1966 at 9 a. m. He confirmed the above external injury.
10. On internal examination the wall of the abdomen and small intestines were found injured. The left hip bone was found frac-tured. One bullet was recovered from the wound. Death was opined to be due to shock and bleeding from the injuries caused by fire-arm. Time between injury and death was within three days and between death and post-mortem examination was about 12 hours.
5. The same doctor examined Mohib Gul appellant, aged about 40 years, on 4-7,66 at 10-30 a.m. and found the following injuries :- (1)A minute lacerated wound on the front of the head with negligible dimensions.
11. (2)Ore abrasion about 1" x 1/8" x 1/10" on the head, and (3)Two abrasions each 1/i" x 1/4" on the back of upper arm about its middle.
12. Nature of the injuries was opined to be simple, caused by blunt means within about 48 hours.
6. Before the committing Magistrate the appellant admitted that he was hauled up by the deceased and his companions for a theft committed by him and the two absconders. Explaining the charge, he stated :- "At the time of occurrence I was irrigating my field and when I heard the hue and cries of the parties at the spot, I went there to see what was going on. The actual accused Lalzada and Haji Mohammad absconders made good their escape after the commission of the theft while I was arrested by the victims in misunderstanding. I am innocent and falsely charged."
7. At the trial the appellant explaining his injuries stated:-- Both the absconding accused had run away and were followed by the P. Ws. I was coming from my field after irrigating it and was attracted to the spot on noise. When I reached near the spot Ghulam Hussain gave me a lathi blow and I fell down."
13. He denied that the gun and the cartridges were seized from him, and stated that he had a belcha with him. He admitted that he was shut in a kotha of P. W. Qamardin and the Investigating Officer took him into custody from there. He admitted that he was arrested at the spot but denied the possession of the shotgun. He further stated that the P. Ws. deposed against him as they had caught hold of him and there was some misunderstanding about the real culprit. He further stated: -- "I am a tenant of Ali Ahmad Kban of Manki and was irrigating his land at the night of the incident. I was passing by this path when I heard noise and a shot and I rushed towards the spot to find out what the matter was. The P. Ws. caught hold of me and the real person escaped from them. I am innocent."
14. He produced no evidence in defence.
8. The learned counsel for the appellant vehemently contended that the conviction of the appellant under section 302/34, P. P. C. is not warranted in law. Section 34, P. P. C. provides for acts done by several persons in furtherance of common intention and lays :-- "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."
15. For the application of section 34, the learned trial Judge has observed :- "A common intention of all the three thieves must be presumed for committing the theft and committing the murder whenever necessity arose as they were armed with fire-arms. It can be presumed that their intention was to use the weapons, if an occasion arose and it can be postulated that the act of shooting down Maula Bakhsh which resulted in his death was committed in furtherance of the common intention of all the thieves. Two of them are still at large. The act of shooting was part of the same transaction and took place while the thieves were fleeing after committing the theft."
16. The only substantial question which arises in the decision of this appeal is whether the circumstances established by the evidence in the case are such as to attract the operation of section 34, P. P. C. For this purpose it is necessary to closely consider the facts and circumstances established by the evidence on record. From the dying declaration Exh. P. A. of Maula Bakhsh and the evidence of P. Ws. Gulab, Rehmatullah and Ghulam Hussain, it is established that the six partners including the deceased, had joined partnership in their business of purchase and sale of old and new aluminium utensils, that they moved about in connection with their business, and that on the eventful night they had assembled at the open site near village Manga with their commodities and slept there for the night, as testified by the witnesses. The site plan shows that the houses of Mohib Gui appellant and Lalzada absconder were at a distance of about 550 yards from the place where the deceased party slept for the night. It has also been established that the deceased and the witnesses woke up on finding that thieves had taken off their money, that the three thieves ran away and they were chased by the deceased and the witnesses, that the appellant was dropped injured and captured while fleeing, and he was found in possession of unlicensed S. B. shot-gun Exh. P. 1 and two live cartridges Exh. P. 2, that either both of the other two fleeing thieves or one of them was armed with a rifle with which he fired at the deceased, who was one of the capturers, of the appellant, that the fleeing thieves on hearing the appellant that he had been beaten by his pursuers, fired a shot with which Mania Bakhsh was wounded. From the evidence and circumstances so described we gather that the three thieves had come armed with fire-arms for a theft to the place where the deceased and the witnesses were asleep, and they had a pre-planned design to counteract resistance in their adventure, with their fire-arms jointly during the course of the commission of the theft or subsequently in their pursuit. Further, that one out of the two fleeing thieves on hearing the appellant that he had been captured, fired the effective shot in furtherance of their common intention of their joint criminal act.
9. Let us now extensively review the precedent decisions to examine the operation of section 34, P.
17. P. C. to the case of the appellant in such circumstances. In Barendra Kumar Ghosh v. King- Emperor it was ruled :- "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 the section must include the whole action covered by 'a criminal act' in the first part because they refer to it."
18. At page 9 it has been stated :-- " '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, is a criminal offence."
19. This appears to be the basic authority and has been followed in almost all the subsequent decisions quoted below: In Bhagwat Singh and another v. Emperor , it is ruled :- "If a man joins with another to assault a person, even though the original intention may be merely to inflict relatively harmless injuries, and he sees his companion in a course of action which may reasonably be expected to bring about the death of the deceased and takes no steps to interfere with that action or to assist the deceased, such an act is an act or omission which renders him liable under section 304 (Penal Code)."
20. In Fazoo Khan and others v. Jatoo Khan and another the dictum is:- "In order to attract the operation of section 34 and fix constructive guilt on each one of the several accused under that section, there must be participation in action to commit the crime, with a common intention, although the different accused might have taken different parts."
21. In Indar Singh v. The Crown it was observed :- "Four persons went armed with guns to the house of K. S. to commit a robbery. K. S. being absent, S. S. and another of the robbers got the minor son of K. S. to take them to the field where K. S. was working. During their absence the other two robbers remained at the house, one of them I. S. taking his stand near the main door which he closed. Two grown-up sons of K. S., who were at their shop closeby, having had their suspicions aroused, then came to the house and pushed open the main door, whereupon I. S. fired at them and killed Kehr Singh, one of the brothers. I. S. was convicted under section 302 and S. S. under section 302/34. It was contended that section 34 was not applicable as S. S. was absent at the time of the murder and could, therefore, not have participated in the crime : Held, that the contention must be overruled. All that section 34 of the Penal Code requires is that the accused is one of the participators in the joint criminal action in the course of which the murder is committed, and in the present case the accused S. S., though temporarily absent, was participating in the joint criminal action in the course of which the murder was comg-tted."1 2 3 4 In Emperor v. Motilal Malik the facts were that three persons proceeding along a road at a late hour of the night were challenged and on the arm of one of them being pulled, he let fall a bundle containing disguise caps. Each was then caught by the arm by a man whereupon the two companions of the accused shot their captors with revolvers. The two who fired shots escaped and the accused, who was secured after a struggle, was found to have on his person a dagger which he tried to use and a knuckle-duster. It was held that "the reasonable inference from the circumstances was that the accused and his two companions had set forth for the purpose of committing some crime of violence involving the use of the weapons they carried, that each knew how the others were armed, that at the time of the shooting they bad acted in concert and had the common intention of murdering persons who had seized them in order to make good their escape, and that consequently the accused was constructively guilty of murder."
22. In Mahadeo Nath Khetri and others v. Emperor it was held :- "But if common intention is proved it is no answer to say that the prosecution have not established which of the acts done in the commission of a crime was done by each individual accused."
23. In 4lahbub Shah v. Emperor it has been ruled:-- "Common intention within the meaning of section 34 (Penal Code) implies a pre-arranged plan. To convict the accused of an offence applying section 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case."
24. In Nazir and others v. Emperor , it has been ruled :- "When the existence of a common intention between all the several persons who committed the criminal act and a criminal act done in furtherance of that common intention are established, each of such persons would be liable for the entire criminal act irrespective of the fact whether he was present at the time or not.
25. The common intention ought to be determined from such known facts and circumstances which existed before the commencement of the criminal act as the criminal act itself is committed in furtherance of that common intention.
26. It is not necessary for the liability of the persons joining in the commission of a criminal act that they must have the common intention about the exact result which was to follow from the act or about the offence which would be made out on account of the actual physical act and its result.
27. Thus the others would be liable for such acts of the other confederates as were likely to be committed in the carrying out of the common intention and which would have been normally foreseen and even contemplated by those persons. The criminal act is not equivalent to an offence which is composed of physical act, its effect and the intention or knowledge with which the physical act was performed. It is the result of a criminal act which is a criminal offence. Section 34 refers to the physical act only."
28. In State v. Saidu Khan and another , it is laid: - "In order that section 34 may be applicable, there must be a common intention to commit some crime, that is, something punishable under the Penal Code or any other law. If that is so, every one would be liable for the result of their joint act in committing the crime, if the result was such as was likely to follow from their joint act in committing the crime intended and, was not foreign to their common intention. It is not necessary in order that section 34 should apply, that the common intention should have been to cause the particular result which came about in committing the5 6 7 8 9 crime."
29. In Bahar v. The Crown , it is laid :- "In order to determine the intention of a person, it is very seldom that one can expect to find positive affirmative evidence generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances.
30. Where there was evidence to show that the appellant was near Mohammad Umar (other accused) who fired the shot killing the goldsmith Hotumal; that thereafter they ran together in the same direction, but were pursued by P. W. 4 and the deceased Taghial, and then Mohammad Umar looked back and fired at his pursuers killing Taghial dead at a distance of about 167 feet from the scene of the first murder that some others in the meanwhile joined in the pursuit and ultimately P.
31. W. 10 succeeded in capturing the appellant and taking away from him the dagger which was kept concealed in his trousers as also in recovering the bag containing the booty whin Mohammad Umar had passed on to the appellant and further from the confession of the appellant it was clear that the possibility of having occasion to use the revolver and the dagger was present in the mind of the appellant, although subsequently he suggested that he was against their use: Held, that the appellant participated in the intention of Mohammad Umar of committing murder in the course of the dacoity, if needed, and that consequently section 34 of the Penal Code was rightly applied to the case of the appellant."
32. In Pandurang and others v. State of Hyderabad it has been, ruled :- "In the case of section 34 it is well established that a common intention presupposes prior concert.
33. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre- arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case. The partition which divides their bounds is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice.
34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example where one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault.
35. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, to have the same intention independently of each other, e. g., the intention to rescue another, and, if necessary to kill those who oppose.
36. It is true, prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.
37. But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to10 11 determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or 'the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis."
38. In Mathurala Adi Reddy v. The State of Hyderabad , it has been ruled :- "But where two persons with their followers, all of them armed moved about together for a set purpose and one gives instructions to the other and keeps himself on the spot in readiness to see it carried out and the other carries it out it is hardly possible to say that the act is not one which was done in the furtherance of the common intention of both. The accused's saying, 'people are collecting, let us fire,' brings out the common intention clearly,"
39. In Fateh Sher and another v. The Crown it is ruled :- "If the act for which offenders other than its perpetrator are sought to be made liable was inevitable, Courts will draw the inference that the common intention of all the participants in the crime was to do that act unless it is proved by cogent evidence that it was not. Again, if all the offenders have acted in a manner which shows unmistakably that their common intention was to do what one or some of them achieved, section 34 of the Pakistan Penal Code will have clear application."
40. In Rajaram Raghu Patil v. State the dictum is:-- "To attract the operation of section 34, Penal Code, and fix constructive guilt on each of the several accused under that section, there must be participation in action, with a common intention, although the different accused might have taken different parts."
41. In Mst. Hamida Bano v. Ashiq Hussain etc. , it has been observed at page 125 : "A joint action may be performed on the spur of the moment as a reaction to some incident, and such a case would fall more correctly within the rule of constructive liability laid down in section 34, P. P. C., which is based on 'common intention', a condition of mind which is more directly and proximately connected with the action."
42. It has been further observed :- "The Judicial Committee of the Privy Council have held in the case of Mahbub Shah v. The King- Emperor, referred to above, that proof of pre-concert is necessary in order to bring a criminal act performed by several persons within the ambit of section 34, but in a later case that of Mamand v.
43. The King-Emperor AIR 1946 P C 45, it was clarified that the existence of such pre-concert could be established even by proof of acts performed by individuals after the completion of the main crime."
44. In Krishna Govind Patil v. State of Maharashtra , it has been ruled :- "It is well settled that common intention within the meaning of section 34 implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a Court can convict a person under section 302 read with section 34 it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence."
45. In Abdul Jabbar v. The State at page 84, it has been observed :- "The principal question that arises in the case of Abdul Jabbar is whether the High Court were right in holding that Abdul Jabbar was also guilty of the murder of Pershotamdas. On a careful consideration of the evidence on record, we see no ground to differ from the appraisal of that evidence by the High Court. Both Mitho and Abdul Jabbar were armed with deadly weapons, ostensibly to commit robbery in the house of Pershotamdas. The nature of the weapons carried by them would legitimately lead to the inference that th'y were prepared to use them if resisted in their adventure. Mitho actually stabbed the deceased fatally when he was thwarted in his purpose.12 13 14 15 16 17 Simultaneously, Abdul Jabbar held off the other inmates of the house by pointing a pistol at them and sought to suppress their effort to seek assistance from outside. This was a sufficient indication that Abdul Jabbar associated himself with the act of murder committed by his co-accused Mitho and it follows that he shared a common intention with him as far as the killing of Pershotamdas was concerned. Section 34, P. P. C. was attracted to the case and the conviction of Abdul Jabbar under section 302 read with section 34, P. P. C. does not therefore appear to us to be open to exception."
10. Deducing a legal inference from the above decisions, we hold that the prosecution has proved that Mohib Gul appellant committed the criminal act of theft and murder of Mania Bakhsh in furtherance of the common intention pursuant to the pre-arranged plan with his other two co- accused absconders. The convictions and sentences of the appellant on both the charges merit no interference. The appeal is, therefore, dismissed. AIR 1925 PC 1 AIR 1929 Pat. 65 AIR 1931 Cal. 643 I L R 14 Lah. 814 AIR 1935 Cal. 526 AIR 1941 Pat. 550 AIR 1945 P C 118 AIR 1948 All. 229 AIR 1951 All. 21 PLD 1954 FC 77 AIR 1955 SC 216 AIR 1956 SC 177 PLD 1956 Lah. 157 AIR 1958 Bom. 469 PLD 1963 SC 109 AIR 1963 SC 1413 PLD 1964 SC 81