MUHAMMAD HAYAT JUNEJO, J.--This judgment will dispose of two criminal matters, namely, Criminal Appeal No. 7 of 1967 and Criminal Acquittal Appeal No. 151 of 1967.
Five persons, namely, Lalan son of Kalandar Bux, Mehardil son of Rais Khan, Janib son of Faiz Muhammad, Imamdin son of Bhambhar and Hairdin son of Jhangal, who are all closely related inter se were tried by the learned Additional Sessions Judge, Jacobabad for offence under sections 302/149, 307/149, 342 and 148, P. P. C. For forming an unlawful assembly and in prosecution of the common object of that assembly committing murder of deceased Faqir Bux son of Ramzan aged 30 years, causing injuries to one Mehar and P. W. Mehar Gul and wrongfully confining Muhammad Bux P: W.
5. They were, however, acquitted of the charge of murder; and convicted under sections 326/149, P. P. C., 147, P. P. C. And 342, P. P. C. And sentenced to suffer R. I. For seven years, one year and one year respectively, sentences to run concurrently. The appellants have preferred an appeal against their conviction; while the State being dissatisfied with this judgment has filed an appeal under section 417, Cr. P. C. Praying that all the aforesaid persons be convicted under sections 302 and 307 both read with section 149, P. P. C.
2. The two appeals arise out of the same incident which is alleged to have taken place during the night between 18th and 19th of May 1965, in front of the house of complainant Umed Ali P. W. 3 in Deh Sorah Taluka Kashmore, District Jacobabad. The prosecution case is fully set out in the First Information Report Exh. 8, lodged by complainant Umed Ali at Kashmore Police Station the next morning at 8 a.m.The Police Station being 8 miles away from the scene of offence. This report was recorded by S.H.O. Haq Nawaz, P. W. 9 and was to the following effect:- "I live alongwith my brother Mehargul, nephew Malhar Murhata near Deh Sorah. My cousins Fakir Bux, Muhammad Bux, Dingo and Khakoo, Merhata live beside our houses. We have our own agricultural land; and we cultivate it. My cousin Khakoo is a `kamdar' of Shale Ali Khan Domki, who lives with him at Buxapur. We woke up on the barking of dogs. I, Mehar Gul, Malhar, Fakir Bux, Muhammad Bux and Dingo woke up. We saw in the moon light that 10 persons were standing on South in front of our houses. Four of them were armed with guns and others were armed with lathis.
We asked them who they, were. Thereupon, they said that Fakir Bux and Muhammad Bux Merhata had stolen their bullock and asked for the bullock and compensa--tion. Thereupon Mehar Gul told them that we have not their bullock. While talking this we went outside the hedge and we exchanged the news with each other. On exchanging the news, the accused gave their names, out of whom I remember the name of Mehardil, Hairdin, Janib, Imamdin and Lalan all by caste Dehani residents of near Tangwani and do not remember the name of the rest. On seeing them, I shall identify them. The accused persons insisted that Muhammad Bux and Fakir Bux should accompany theirs and settle the matter of bullock. Mehar Gul refused to give them hands at that movement. In.
The course of talking we exchanged hot words. It was sunrising time. One accused got up and gave ---lathi' blow on the back of my brother Mehar Gul, thereupon the quarrel took place.
We also gave blows to the accused in self-defence, in the quarrel. Thereafter the accused tired gun shots on us, which hit Fakir Bux, Mehar Gul and Malhar. Due to gunshots Fakir Bux and Mehar Gul fell down. Thereafter accused gave blows to Muhammad Bux and tied him and took away towards West. The accused threatened to kill us, if we chased them. Due to fear we did 'not go after them.Thereafter, we saw that Fakir Bux had died due to gun shot, Mehar Gul and Malhar are lying there due to gun shot injuries. Our womenfolk are sitting beside them. I advised Dingo to inform Khakoo at Buxapur and I am going to Police Station to report. I beg to complain that accused murdered my cousin Fakir Bux on allegation of theft of bullock. They gave blows to my brother Mehar Gul and nephew Malhar and carried away Muhammad Bux tied up. The bamboo lathis left by the accused are lying at the place of occurrence. I lodged complaint. Action be taken."
3. The same day at 10 a. m. Appellant Lalan lodged report at Police Station Kandhkot wherein he showed the time of occurrence as mid-night. His version of the incident was as follows :- "The complaint of complainant is that I slept after tying my 3 bullocks in the courtyard of my house at night on 17th May 1965. At about night I wake upon the barking of dogs. I saw that my bullock described below was not available. I searched for it hither and thither. Thereafter, I woke Imamuddin, Janib Meherdil and Hairdin and took them at the place of occurrence and told them the facts. We saw the bare footprints of two persons on the light of the torch at occurrence. The same footprints went towards the East of the village. We tracked the footprints and yesterday we reached at sun-set time nearby a village on the East of village Mir Dost Ali. We saw that a man taking my' stolen bullock from his house and ran towards East of the jungle. We surrounded him and caught the present accused along with the bullock. We inquired from him his name. He gave his name as Muhammad Bux son of Ramzan by caste Merhata resident of own house Taluka Kashmore. He did not disclose the names of the rest of the accused. While so doing, four persons armed with lathis and hatchet attacked on us and gave us lathi and hatchet blows. Meanwhile, three persons of whom two armed with guns and one with lathi soon after opened fire on us.
Mehardil was hit with a gun shot and fell down. He was being called by name of Ghulam Kadir Khosa. The Holy Quran was brought in between and the quarrel averted. The other party also received injuries in the quarrel. Thereafter we started from there by taking accused alongwith bullock. Now I have come to complain that the remaining accused are not known to us and on seeing we shall be able to identify them. All of us identified the stolen bullock. The injured is uncons--cious. Investigation be made."
4. Both the cases were investigated mainly by S.H.O. Haq Nawaz of Kashmore Police Station who, after recording the First Information Report of complainant (Exh. 8) went to the scene of offence. He found a pool of blood just outside the thorny enclosure of the houses of the complainant party. Six lathis and four `Gobhatas' (sticks), two empty shells of cartridges and a wad were also lying there and were secured by the Police. The S.H.O. Sent the dead body of deceased Fakir Bux to the Medical Officer, Buxapur for post-mortem through Police Constable Ali Sher and thereafter, recorded the statement of P. W. Mehar Gul and sent him to the same Medical Officer for treatment. On 25-5- 1965, after receiving information about the counter-case S.H.O. Haq Nawaz went to Kandhkot and interrogated the appellants at Ghouspur Dispensary where they had been sent as injured persons in the counter-case. The S.H.O. Arrested them and got them transferred to Kashmore Dispensary.
On 26th May 1965, he received the case papers of the connected case also for investigation under the orders of Superintendent of Police. S.H.O. Haq Nawaz accordingly, inspected the alleged scene of occurrence in the counter-case which was also the same as the alleged wardat in the present case. It was 30 miles away from Kandhkot Police Station and 6 miles distance from Mir Dost Ali Railway Station. The houses of appellants were at a distance of about 40 miles from the wardat of both the cases.
On 2nd June 1965, an identification test of all the five appellants was held in the Sub-Jail, Kashmore through witnesses Urned Ali, Melhar and others in presence of Third Class Magistrate, Kashmore P.
W. Khuda Bux, wherein Umed Ali and two others who are not examined in this case correctly identified all the five appellants. Subsequently on 10-7-1965, all the appellants were identified by P.
W. Mehar Gul, in a test conducted by the same Magistrate. After the usual investigations were concluded all the appellants as well as the complainant party were challaned in two separate cases which were separately committed to the Court of Sessions and were tried by the learned Additional Sessions Judge, Jacobabad, who acquitted the complainant party but convicted the appellants as stated above.
5. The autopsy on the dead body of deceased Fakir Bux which was conducted by Dr. Mumtazuddin, Assistant Medical Officer, Buxapur revealed the: following injuries on his persons :- "(1) One circular lacerated wound 1/4" in diameter black margin on the left side of back in the theorasic region with undetectable depth.
(2) Four circular lacerated wounds 1/6" in diameter margin black in colour with undetectable depth on the left side of back in the theorasic region,
(3) Two lacerated wounds 1/6" in diameter on the right side of the chest. On searching the site of injury No. 3 one pellet was recovered."
According to the doctor death was instantaneous ; and must have occurred 5-8 hours after the last meal. All the injuries were the result of discharge of firearm such as gun. Injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to cause death. The same doctor also examined P. W. Mehar Gul, who had one lacerated wound on the right arm; and Malhar, who had one circular lacerated wound on the left side of back ; both the injuries were the result of discharge from the firearm such as the gun. One of the injuries on the person of Mehar Gul was grievous in nature.
All the five appellants also sustained injuries the encounter. They were examined byDr. Bhimandas.
Curt witness No. 1, who found that there were in ail 26 injuries on their person. All these injuries were caused by blunt substance such as lathi and except one injury on the person of Mehardil which was likely to have caused disfiguration of face, the rest were all simple in nature.
6. In their statements recorded under section 342, Cr. P. C. All the appellants admitted their presence at the wardat at the time of the occurrence. They also admitted that they had received injuries in this encounter. Appellant Lalan admitted that he had filed the F. I. R. Exh. 9, in the connected case at Kandhkot Police Station and that it was correctly recorded. He further admitted that they had taken P. W. Muhammad Bux to the Kandhkot Police Station and produced him before the Police. The rest of the prosecution allegations were denied by the appellants and they stated that this case had been filed against them due to enmity of the prosecution witnesses on account of the theft of their bullock. No witness was examined by any of the appellant in his defence.
7. The prosecution case against the appellants rests on the ocular evidence of complainant Umed Ali P. W. 3, his brother Mehar Gul P. W. 4 and his cousin Muhammad Bux P. W.
5. Their evidence is substantially in accordance with the F. I. R. Exh. 8, reproduced above and, therefore, need not be repeated. The only deviation introduced in the evidence is a denial on their part that they had caused any injuries to any of the appellants. This is, however, only to be expected in cases of this nature where either party pleads the right of private defence and alleges that the other side was the aggressor.
8. In the cross-examination of the prosecution witnesses it has been suggested by the learned counsel for the defence that the incident had taken place near Mir Dost Ali Railway Station about 6 miles away from the scene of occurrence where P. W. Muhammad Bux was caught with the bullock and that on this account there was a fight in which both the parties sustained injuries. Mr. Azizullah K. Shaikh, the learned Advo--cate appearing for the appellants before us has, however, conceded that he would not rely on this defence as in view of the clear evidence of the investigating officer and the admission made by appellant No.1 in his F. I. R. Exh. 9, he would not be in a position to say that the scene of offence was different from the one alleged by the prosecution. In view of this position taken by the learned counsel and the evidence on this point on record, there is no doubt whatsoever that the incident had taken place right in front of the houses of the complainant party and that the appellants had come all the way from their village, which is admittedly 40 miles away from the wardat ostensibly with the object of recovering their bullock and taking away the thief, whosoever he was, to the Police Station.
9. As almost the entire prosecution case is admitted in the counter First. Information Report, Exh. 9, and also by the learned counsel for the appellants before us, the only point which needs consideration in this case is as to which of the two parties had the right of private defence.
10. In their statements, recorded under section 342, Cr. P. C. None of the appellants has given his version of the occurrence nor have they specifically raised the plea of right of private defence. Their participation in the occurrence has, however, been clearly admitted ha them. It cannot he disputed and has in fact not been disputed because if the injuries on their person. Mr. Azizullah K. Shaikh, the learned counsel for the appellants has, however contended that in view of the fact that there was a counter-case tiled by the appellants, party we should consider the F. I. R. Exh. 9 filed by appellant Lalan as the defence version of the incident. Mr. Shaikh himself placed his entire case before us on the basis of this F. I. R. And contended that this defence having been put forth at the earliest possible opportunity should be accepted. There are, however, averments in thisF. I. R. Which are obviously false. For example it is stated therein that appellant Mehar Dil was hit by a gun shot tired by one Ghulam Kadir Khoso, but this statement is beliedthe evidence of Dr. Bhimandas C. W. 1 which shows that appellant Mehar Dil did not have any gun shot injury on his person. Besides if two persons had opened gun fire as alleged in this F. I. R. The appellants' side would have surely sustained some ' gun shot injuries. We also consider it to be a strange coincidence that P. W.
Muhammad Bux would be taking the bullock from his house towards the jungle just at the precise time when the tracking party of the appellants reached his house after covering a distance of 40 miles. We agree with the finding of the learned trial Judge that in all probability appellants had a suspicion that P. W. Muhammad Bux and deceased Fakir Bux had committed the theft of their bullock. The evidence of the Investigating Officer S.H.O. Haq Nawaz shows that they were both men of shady character and their files were being Maintained at the Police Station. The appellants' party must have accordingly suspected them after' the disappearance of their bullock and when they found the footprints leading to the house of the complainant their suspicions must have been confirmed. There is. Accordingly, nothing unnatural or improbable when the prosecution witnesses say that the appellants asked for their bullock from them on account of suspicion. However, even if we take the most favourable view of the defence case and proceed on the basis of. What has been stated in F. I. R. Exh. 9, t filed by appellant Lalan himself, which incidentally, is also the case of the learned counsel for the appellants before us, the position does not change.
11. According to the F. I. R. Exh. 9, filed by appellant Lalan, the theft of the bullock was not witnessed by any one. It was only after the bullock had disappeared that appellant Lalan searched for it and ultimately alongwith four other appellants formed a tracking party which tracked the footprints for some 40 miles when they found P. W. Muhammad Bux taking the bullock from his house to the jungle. In view of these admitted facts there cannot be the slightest doubt that the thief whosoever he was, had effected his retreat with the property and thereafter the appellants could neither seize the bullock nor apprehend P. W. Muhammad Bux.
Section 105 of the Pakistan Penal Code reads as follows :- "The right of private defence of property commences when a reasonable apprehension of danger to the property com--mences.
The right of private defence of property against theft continues till the offender has effected his retreat -with the property or either the assistance of the public authorities obtained, or the property has been recovered . . . . . .. . . . :'
It has been repeatedly held that the right of private defence in such cases must be strictly confined within the limits fixed by statute.
In Mir Dad and others v. The Crown (I L R 7 Lab. 21) where the appellants followed up tracks purporting to be those of their stolen cattle, and, prior to the arrival of the Police proceeded to the complainants' village and fired at them it was held, that the appellants' right of private defence of their property had been put to an end to by the successful retreat of the thieves, and that their alleged re-discovery of the cattle in the complainant' possession could not revive that right.
12. The view expressed in Mir Dad's case has been consistently approved by this Court. In Muhammad Sharif and another v. The State (PLD 1959 Lah. 987) where. The deceased's son had brought bullock of the appellants to his house and tethered it there, and after a short interval of time the appellants on getting news of the loss of their bullock, entered the "Ihata" of the deceased to effect the recovery of the bullock, it was held that when a retreat had been effected with the property, no further right subsisted in the appellants to effect its recovery by force by way of right of private defence of property. While intepreting the provisions of section 105 of the Pakistan Penal Code, Sajjad Ahmad, J. (as he then was) observed as follows :- "The word 'retreat' is not defined in the Code and the 1 dictionaries which we have consulted for its meaning give the following near equivalents of the word: 'To withdraw ; to recede ; to retire to a place of safety.'
'Effected' is a verb of a fairly strong connotation conveying the sense of an act having been accomplished or completed. Until retreat has been effected', would therefore, mean, `until withdrawal or retirement has been completed,' but this begs the question of when the withdrawal or retirement or recession is complete on the part of the thief? The Indian Law Commissioner expressed their perplexity in their first report on the Penal Code on the meaning of this provision in the following words: 'We are not sure of the meaning intended by the expression `till the offender has effected his retreat with the property'. We know not certainly when he is to be considered as having effected his retreat; probably it is when he has once got clear off, having escaped immediate pursuit, or pursuit not having been made. We presume that the protection of parties pursuing robbers, etc. For the recovery of property which they have succeeded in carrying off; or for bringing them to justice, was thought not to be within the scope of the provisions touching the right of private defence. But in spite of the perplexity of Law Commissioners and their animadversion of this clause, it has remained on the statute book intact for nearly a century now as a satisfactory and adequate expression of the intention of the Legislature which clearly was to confine the right of private defence of property against theft within well-defined limits so that nobody should become a justiciar of his own cause or take the law into his own hands beyond the point which is absolutely necessary for self-protection, consistent with the paramount requirements of law and order. We have not been referred at the Bar to any authority which defines in clear terms the phrase in question. The leading case on the subject from the Lahore High Court cited at the Bar, namely, Mirdad v. Emperor analyses the various parts of the section in relation to the right of private defence of property against theft without giving a clear definition as to what the relevant phrase means. But the following passage from that judgment is a helpful contribution to the subject under discussion: 'As soon as the offender has effected his retreat with the property, no right of private defence of that property against theft subsists, but, until the offender has so completed his retreat, the right of private defence of that property continues until the property has been recovered, i.e. During the retreat of the offender, or until the assistance of the public authorities is obtained Right of defence cannot be revived so as to allow stolen property wherever seen again in the possession of anybody may be taken by owner from that person by the use of all the violence not extending to the causing of death which may be found necessary.'
'If we may seek to define this phrase 'effected his retreat with the property' in general terms, we venture to say that while it will be a question of facts in each case as to when a thief effects his retreat with the property, by and large a retreat is effected when the thief makes good his escape, by reaching his destination or when he enters a quarter of safety when further pursuit would only lead to indiscriminate confusion, violence, and complications which it seems to be the clear intention of the relevant provisions to avoid. In this view we consider that the principle of `hot pursuit' as recognized by Maritime International Law invoked by Mr. Qasuri by way of analogy is not of great assistance. The effect of the relevant statutory provision has to be determined on its own interpretation in relation to particular circumstances of the case that call for its application."
13. The same principles were also explained by Raymond, J. On the analogy of the ancient Roman Law in the case of Allah Bachayo and another v. The State (PLD 1964 Kar. 412) wherein it was observed as follows :--- "It seems to me that the basis for this first alternative in sub-para. 2 of section 105 is very likely the provisions of the ancient Roman Law on the Roman Delict of theft, or Furtum Manifstum and Nec- Manifestum. A manifest thief is defined as one who is secured with the stolen property on his person and before he has reached that place where, he intends to keep it. Once he has reached that place theft if that property is secured from him there thereafter, it is non-manifest theft for which the punishment prescribed is much less than for manifest theft. Similarly, under the Penal Code the right of private defence of property against the thief continues till the offender has effected his retreat with the property and once this has happened the right ceases to exist.
Although the third alternative in para .2 provides that the right of private defence of property continues until the property has been recovered, yet this third alternative cannot override and render nugatory the first alternative.
14. In view of what has been stated above it is clear that the appellants had no right of private defence of property and could not seize the bullock long after the thief had effected his retreat; nor did they have any justification in law in apprehending P. W. Muhammad Bux and thereafter forcibly taking him away with them. Mr. Azizullah K. Shaikh, has, however, contended that as the appellants had been P. W. Muhammad Bux in possession of their stolen bullock they were justified in arresting him under section 59, Cr. P. C. Which reads as follows :- "(1) Any private person may arrest person who in his view commits a non-bailable mid cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a Police Officer, or, in the absence of a Police Officer, take person or cause him to be taken in custody to the nearest Police Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The learned counsel contends that under section 59, Cr . P. C. The appellants had the right to arrest P. W. Muhammad Bux when they found the bullock with him. We find no force in this contention. It is not even alleged by the defence that any of the appellants had seen any one much less P. W. An Muhammad Bux committing theft of their bullock. The conten--tion of the learned counsel for the appellants, however, is that as the bullock was in possession of P. W. Muhammad Bux and he was actually seen taking it away from his house, the appellants were justified in believing that he was the thief and, therefore, arresting him and recovering the bullock from him. We, however, feel that the mere fact that P. W. Muhammad Bux was seen taking this bullock to the jungle from his house, even if believed, would not give a right to the appellants to arrest him. In this connection we cannot do better than to reproduce the weighty observations of their Lordships of the Supreme Court in the case of The State v. Muhammad Akbar (PLD 1966 SC 432) which are to the following effect :- "The right of a private person to make the arrest at all is confined by section 59 to the arrest of person whom he actually sees committing a non-bailable and cognizable offence.
It is necessary to point out that the words `in his view' are of the most specific nature, and in natural and proper meaning they are confined to things actual seen. To extend these words to cover a case where action is taken on the basis of a reasonable ground to think that a person sought to be arrested has committed a non-bailable and cognizable offence, may, in our view be regarded as an attempt to legislate."
15. We may also refer to the case of King-Emperor v. Johri. (I L R 23 All.266). In that case a person.
Whose bullock had been stolen in his absence traced it to the house of the, thief, and thereafter arrested the thief then and there and handed him over to a chaukidar, from whose custody the thief escaped afterwards. On a subsequent trial of the thief' under section 224, Penal Code, it was held that it was not an escape from lawful custody within the meaning of section 224 as the owner of the bullock was not entitled to make the arrest in these circums--tances.
Similarly in State v. Sindhonath R.I and others (AIR 1959 All. 233) where the stolen bullocks were subsequently seen being used for ploughing and the owner tried to recover them, it was held, that he was nut justified in recovering them by force.
16. In view of what has been stated above, it is clear that even on their own case the' appellants could not avail of the provisions of section 105 of the Pakistan Penal Code. Accordingly, when they not only seized the bullock but also tied P. W. Muhammad Bux, and wanted to forcibly take him away, the complainant party was, fully within their rights in using reasonable force not only to free P. W. Muhammad Bux but also to prevent the appellants from taking away the bullock at which they could have recovered only by the legal process, and not by taking the law into their own hands. All the injuries on the person of the appellants were found to have been caused by lathis and no deadly weapon such as hatchet or gun had been used against them. Besides all these injuries, except one, were simple to nature. The appellants on the other hand came armed with firearms from a distance of 40 miles determined to recover their bullock by force and to take away the thief with them. In doing so they actually killed deceased Fakir Bux and caused gun shot injuries to P. W. Mehar Gul. The case of the appellants on this point as put to complainant Umed Ali in his cross-examination was that "some other people had fought" with the complainant party and that the death of deceased Fakir Bux was caused in a separate transaction unconnected with the present incident. This suggestion was denied by the complainant as well as by P. W. Mehar Gul.
Beside in the F. I. R. Exh. 9, lodged by appellant Lalan himself. He has clearly admitted that `the other party also received injuries in the quarrel". In his statement recorded under section 342, Cr. P. C. The appellant admitted the correctness of this F.I.R. The case of the appellants' before us as argued by their learned counsel is also that this F.I.R. Is correct. We accordingly agree with the learned trial Judge when he says that this defence of the appellants is absurd. The appellants in this case could have easily sought the assistance of the Police instead of taking the law into their own hands. They, however, did not even file a report about the theft of the bullock, but proceeded to recover it by force long after the thief had effected his retreat. All these circumstances leave no room for doubt that the appellants were the aggressors in this case and tile minor injuries that were caused to them by the complainant party were due to resistance of the latter in exercise of their right of private defence of person as well as of property.
17. The next question that would, arise for consideration is as to what should be the nature of offence committed by the appellants. Mr. Rustom Kaikobad, the learned counsel appearing ors behalf of the learned Additional Advocate-General, has contended that the acquittal appeal filed by the State should be allowed and the appellants should be convicted under section 302/149, P. P.
C. By virtue of the provisions contained in --Second Part of section 149, which reads as follows :-- "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew. To be likely to be committed in prosecution of that object, every person who, at the time of tile committing of that offence,, is a member of the same assembly, if guilty of that offence."
The learned counsel for the State contends that the five appellants carte in a body of ten persons of whom four were armed with guns and went to the house of the complainant party, 40 miles from their village with the common object of recovering their bullock by force. They must have, accordingly known that murder is likely to be committed in prosecution of the said common object as the other party was likely to resist. In this connection the evidence of Dr. Mumtazuddin shows that all the injuries oil the complainant party were caused by gun shots. It has been admitted by P.
W. Mehar Gul in the Court of Enquiry that. None of the appellants was armed with a gun. Although tile witness tried to resile from this position at the trial, he was confronted with his admission made in the committing Court which was brought oil record as Exh.
17. This admission when read with the medical evidence would show that none of the appellants took any active part in the fight. This position was admitted by the complainant himself in the Court of Enquiry ride Exh.
13. None of the present appellants could. Therefore, be individually responsible for the murder of deceased Fakir BUX. ' There is also no previous enmity between (lie parties. In fact, they were not even known to each outer prior to this occurrence. The common object of the appellants was to recover their bullock. It is, however, reasonable to infer that they would have the knowledge that in that process some resistance would be offered and grievous injuries were likely to be caused to the complainant party. We consider that it would be appropriate to hold on established facts that each member of the assembly knew that grievous hurt was likely tip be inflicted as a result of the prosecution of their common object. In the circumstances of this case we feel that it would he safer to presume that the intention of tile appellants was only to proceed to the length of inflicting grievous hurt and not more and this was also the extent to which their knowledge could extend as has been held by the trial Court. They could not be saddled with the knowledge that some one amongst them would go to the extent of committing murder. In somewhat similar circumstances, similar view was also taken in the case of Mr. Dad and others v. The Crown (I L R 7 Lah.21) referred to above.
18. Moreover when two conclusions are equally possible the Court should prefer the one that is more favourable to the accused. This appears to be the approach of the trial Court as well; and we do not find any justification for taking a different view specially when hearing an appeal against acquittal. The appellants have been rightly convicted under sections 326/149. 147 and 342, P. P. C and the sentences awarded to them on these counts are by no means excessive, considering that one person from tile complainant side lost his life and another received serious injuries. In the result, both the appeals namely, Criminal Appeal No. 7 of 1967 and Criminal Acquittal Appeal No. 151 of 1967 are dismissed and the convictions and sentences awarded to the appellants by tile trial Court are maintained.