1. CORNELIUS, J.-The appellants are seven in number: One of them, namely, Muhammad Azad stands convicted under section 302 and section 148, P. P. C., on the-allegations that he joined in a riot and in the course of that riot, he caused the death of one Bhag by shooting him with a fire-arm. The remaining six appellants are named Mohabbat Khan, Karim Dad, Nazir Ahmad, Muhammad Shakir, Riaz and Mahram Khan. They were each convicted under section 148, P. P. C. For participation in the same riot. Each was also convicted under section 325 read with section 149, P. P. C. The sentences are uniform in the cases of these six persons.
2. Originally, 38 persons were challaned by the police in the case, which arose out of a serious clash between the parties of two candidates at a District Board election in Rawalpindi district. The occasion was the polling of votes at a village named Kirpa on the 27th June 1954. The accused persons are shown to be supporters of one of the candidates named Kamal Khan, while the allegation is that the complainant-party in the present case were all supporters of the rival candidate Balawal Shah. It appears that village Kirpa was a strong--hold of the Dhanial Rajputs, to which tribe Kamal Khan belongs. A body of supporters of Balawal Shah on the day in question formed themselves into a procession, about four hundred strong, and marched in that fashion to the polling stations bearing flags and shouting slogans. The authorities had apprehended a clash, and had posted at the polling station an Assistant Sub-Inspector of Police Muhammad Saeed with a posse of head constable and 12 foot constables. The first report of the occurrence was sent to the police station by A.S.I. Muhammad Saeed, whose description of the incident is that the procession of Balawal Shah s supporters was stopped by a number of powerful supporters of Kamal Khan who insti--gated their party to attack. Thereupon some three or four hundred supporters of Kamal Khan rushed towards the precisionists hurling stones at them. A. S. I. Muhammad Saeed attempted vainly to prevent a clash. When some members of Kamal Khan's party opened fire on the others, the police were ordered to fire shots in the air to restore order but this also was of no avail for both parties started to fire at each other, and some hand grenades were also thrown. The police party then took refuge inside the polling station which was situated in a school.
3. The only reference to individual hurt to be found in this report is as regards the death of Bhag for which the appellant Muhammad Azad has been held responsible. It is described in the following words:- "Bhag Chowkidar resident of Kirpa, who having cast his vote, was standing to the east of the polling station near Abdul Aziz Foot Constable No. 1959, was hit by a bullet on the neck on the front side and by another on the left calf. He fell down and died."
4. It seems clear that when this report was written, the situation had not been brought under-control.
5. No less than four persons lost their lives in the incident, but only one is mentioned in this report, and there is no detailed reference to the injuries of any other person, though in the investigation it was found that at -least six others had sustained injury, including two of the accused persons, and two members of the complainant-party namely Bhag Ali and Abdul Aziz had sustained grievous hurt.
6. The report itself states that when it was dispatched to the thana, the situation at Kirpa was of a "grave and serious nature", and mentions that four or five hundred persons on each side had taken up positions and were preparing for another clash in which there might be loss of life.
7. The accused persons at the trial who numbered twenty out of the 38 persons who had been challaned, pleaded false implication. Some of them led evidence, mostly of alibi. All were convicted. On appeal to the High Court, eleven of these twenty persons were acquitted, including one Subedar Muhammad Sadiq had been sentenced to death for the murder .4 of one Dadu. The sentences of two of the remaining nine persons were reduced .To the period of imprisonment already undergone. Leave to appeal to this Court was granted to the remaining seven persons to examine certain contentions affect--ing the evidence led to prove that the appellant Muhammad Azad was responsible for the gun-shot wound which caused the death of Bhag, and, as regards the remaining six appellants, whether on the facts, each of them could be held constructively guilty of the offence of causing grievous hurt punishable under section 325, P. P. C.
8. The killing of Bhag is described by three witnesses Sheroo P. W. 14, Niaz Ali, P. W. 15 and Gaman, P. W.
9. 16, whose state--ment is that they went together with him to the polling station in order to cast their votes for Balawal Shah. They came out together and had gone some distance from the polling station when suddenly Bhag was fired at and the witnesses saw that it was Muhammad Azad who had fired. Muhammad Azad fired a second shot within the sight of the witnesses. It seemed that the first shot struck Bhag on the leg, but the second pierced the chest, and led to his death almost immediately. The evidence of these witnesses was examined with some care in the trial Court. The learned Sessions Judge believed the statements of Niaz Ali and Gaman. He noted that Niaz Ali was closely related, to Bhag, but Gaman was quite independent. He made no mention of the evidence of Sheroo, and the reason seems clear namely that Sheroo had been treated by the prosecution as a hostile witness and had been cross-examined on the basis of his evidence in the Committing Court, which lie declared was false. Further support for the charge against Muhammad Azad was found by the learned Sessions Judge in the recovery of a gun from his possession, in the course of the investigation.
10. The failure of the learned Judges in the High Court to evaluate the evidence of Sheroo separately, has furnished matter for a good deal of the argument presented on behalf of the appellant Muhammad Azad. It is clear that from a witness who has spoken into two conflicting senses in relation to a fact in issue, it is not possible to obtain corroboration for other witnesses who have only spoken in one sense. As regards the independent character of the witnesses, that circumstance alone would not render the evidence of such a witness as Sheroo available for the prosecution in a case of this kind. The learned Sessions Judge had pointed out that although Niaz Ali was related to the deceased that was "wholly insufficient to discredit him". That statement becomes fully acceptable when it is borne in mind that Niaz Ali is not shown to have any reason whatsoever for falsely accusing Muhammad Azad.
11. Gaman is indeed as the learned Sessions Judge and the learned Judges in the High Court have agreed, a completely disinterested witness. The mere fact that he was a Gujjar like the deceased Bhag is, in the absence of any hint of animus towards Muhammad Azad, quite insufficient to taint him with partisanship.
12. It is noteworthy that these three witnesses have not said a word about the rest of the incident, or of the manner in which any other person on the prosecution side came by his injuries. From this circumstance, two conclusions may be justifiably drawn. The first is that these witnesses are not touched to any appreciable extent by the conflict between the two voting camps which developed into hostilities on this occasion. Secondly, their evidence makes it plain that despite the description given of the incident in the initial report, the assaults which took place including those which have been made the subject-- matter of convictions in the present case were not part of a general attack by several hundred persons on several hundred other persons, but are to be regarded as spordaic or isolated assaults which occurred at some distance from the polling station, and perhaps on the fringes of the front between the two opposing groups.
13. It is contended that there was no motive to shoot Bhag. The evidence showed that a voting paper had been issues to him, but it was not found later in the ballot box, showing that he had not voted for Balawal Shah. That being the case, it was suggested that there was no motive for any member of Kamal Khan's party to shoot Bhag. The argument is o no avail, for on the evidence it is clear that Bhag was in the company of three other persons, who were supporters of Balawal Shah and that these four persons came out of the polling station together. To the eyes of the supporters of Kamal Khan, Bhag was as much a hostile as his three companions. That he was fired at and not any of the others requires no rational explanation. In an outburst of the kind which happened at this polling station, it is sufficient explanation for an assault that a member of the opposite-party is a convenient target for attack. That in our opinions explains sufficiently why a fatal assault was leveled at Bhag, who had given no special cause for offence.
14. The further contention was raised that the eye-witnesses had not stated the name of Bhag's assailant either to the police or to the Lambardars at the earliest opportunity and references were made to portions of the evidence on this point. These matters go to appreciation of the evidence, and no reason is made to appeal why with reference to these matters this Court should depart from its practice of not interfering with conclusions reached concurrently by two Courts below, upon questions of fact, by evaluation of evidence. Such omissions as have been brought to our notice in this connection may be; sufficiently explained by the reluctance of village witnesses to commit themselves on important matters affecting high criminal liability, until they are assured of protection, e.g., until a proper investigation has been commenced by competent police officials. In the result, no ground is shown to exist on which this Court can interfere within its limited jurisdiction in criminal matters, which with the conviction of Muhammad Azad.
15. The basis of the convictions of the remaining appellants is to be found in the evidence of a number of witnesses 'who speak to the original assault, coupled with the statements of individual members of the complainant-party who were subjected to assualt. The latter statements have been accepted in the High Court. Thus, the appellants Nazir Ahmad and Muhammad Shakir have been found to have attacked one Tikka Khan with lathis, but result was that only two simple injuries were caused. One Abdul Aziz who received a grievous injury to his head in addition to five other simple injuries, was found to have been attacked by the aforesaid Nazir Ahmad and one Muhammad Azam, whose sentence has been reduced to the imprisonment already undergone and who has consequently not appealed. Mohabbat Khan, Karim Dad, Riaz and Mahram Khan along with one Siddiq are shown to have attacked Bagh Ali and caused six injuries, one of which, a contused wound on the head, was of a grievous nature. Siddiq's imprisonment, was reduced to that already undergone, and he has not appealed. The contention that these six persons can only be held responsible on the evidence, for the consequences of their individual acts is obviously untenable, since the attacks upon Tikka Khan, Abdul Aziz and Bhag Ali are clearly proved to have been the concerted work of the persons who have been named above, acting in groups. The application of section 149, P. P. C. In the circumstance of the case may not be entirely appropriate, for, as has been seen already, the indications arc that the injuries of the individual members of the complainant-party were not the result of a massed attack by four hundred persons on four hundred others, but the attacks on these persons were included in a number of sporadic assaults, and they cannot be regarded safely otherwise than in isolation from each other. But joint responsibility of the nature for which provision is made in section 34, P. P. C. Clearly attaches to those who joined in the attack upon a particular individual, to the extent that his injuries were the reasonable and natural consequence of the attack.
16. Applying this principle, the liability for the injuries of Tikka Khan falls clearly under section 323, P. P.
17. C. Read with section 34, P. P. C. This liability falls on Nazir Ahmad and Muhammad Shakir. Nazir Ahmad-is also liable for the assault on Abdul Aziz, which will be considered presently, but on the above finding, it is necessary to alter the conviction of Muhammad Shakir from section 325/149, P. P.
18. C. To section 323/34, P. P. C.
19. Taking next the attack on Abdul Aziz which resulted in one grievous injury, such an injury is a very natural consequence to expect in a concerted attack with lathis, in which blows are aimed at vital parts such as the head. The conviction of Nazir Ahmad under section. 325, -P. P. C. Appears to be correct, although on the view that we have taken, the liability falls under section 34, P. P. C. For a joint act with a common intention, rather than under section 149, P. P.. C. The case of the assault on Bagh Ali affects the appellants Mohabbat Khan, Riaz, Karim Dad and Mahram Khan, and in their case also it must be held that the result of their joint attack with lathis on Bagh Ali namely one grievous injury in addition to several minor injuries, was a reasonable and natural consequence of the nature of the assault which they are proved to have carried out jointly. Consequently, these persons are also clearly liable under sec--tion 325, P. P. C., but for the reasons already given, the principle of constructive liability applicable to them is that declared in section 34, P. P. C. Rather than on the basis of a common object of the members of an unlawful assembly under section 141, P. P. C.
20. As for the convictions under section 148, P. P. C., the relevant facts are that an order under section 144, Cr. P. C. Had been made by the authorities for the preservation of peace on the occasion of the polling. It appears clearly from the evidence that a group of supporters of Kamal Khan were induced to resort to criminal intimidation for the purpose of preventing certain voters from voting.
21. All those who joined in this effort were thereby constituted members of an unlawful assembly, with the common object indicated above within the meaning of section 141, P. P. C. Since it is obvious that their number was well in excess of the minimum namely five. As resort was, had to violence the offence of rioting was clearly committed, which in the case of those in the riot who were armed with deadly weapons or any weapon which, if used as a weapon of offence, is likely to cause death, would be punishable under sec--tion 148, P. P. C. There it no doubt that, if used as a weapon of offence, as lathi, is capable of causing death. Therefore, the conviction of each of the appellants under se9tiou 148, P.P.Cis correct.
22. The result is that the appeal is dismissed in relation to each one of the appellants excepting the appellant Muhammad Shakir whose conviction under section 325/149, P. P. C. Is altered to section 323/34, P. P. C., the sentence being reduced to one year's rigorous imprisonment. The convictions and sentences of all the appellants under section 148, P. P. C. Are maintained. A technical correction is necessary and will be made in relation to the convictions of Mohabbat Khan, Karim Dad, Nazir Ahmad, Riaz and Mahram Khan under section 325, P. P. C. Viz.' that this section will be read with section 34, P. P. C. And not section 149, P. P. C.