1. HAMOODUR RAHMAN, C. J.-This appeal by special leave arises out of a judgment of a Division Bench of the High Court of West Pakistan, Karachi Seat, upholding the con--viction of the appellant now before us for the murder of one Dhani Bux on the night between the 11th and the 12th of August 1965, near the entrance of the house of Shah Muhammad (P. W. 6) and confirming the sentence imposed upon him.
2. The circumstances in which this incident took place may briefly be stated as follows: The appellant and his brother Lal Bux, who are Brohis by case, wanted the hand of one Mst. Roshna, the daughter of Shah Muhammad (P. W. 6), a case fellow, for the appellant. This was refused whereupon both the brothers left the village after threatening to abduct Mst. Roshna. They crossed the river and took up residence in village Phull in Taluka Naushahro Feroze, District Nawab Shah.
3. Subsequently, Roshna was married to A.I Hassan, a grandson of the deceased Dhani Bux.
4. On the night between the 11th and the 12th of August 1965, Mst. Roshna, who had come to meet her parents after her marriage and also to see her mother who was unwell, was sleeping in the courtyard of her father's house along with her parents and other brothers and sisters. At about midnight Shah Muhammad heard some noise in the courtyard and could, in the light of the moon, see four persons there. Incidentally it was the 14th day of the lunar month. He however, flashed his torch and in the light thereof recognised the appellant and his brother Lal Bux amongst these four persons. Lal Bux was carrying a single-barrel gun while his brother Rasool Bux was armed with pistol and their two companions, who could not be identified were carrying lathis. Seeing them Shah Muhammad raised cries which attracted Dhani Bux, Mubarak and Rahmat--ullah, his close neighbours. They rushed towards the house of Shah Muhammad. When Dhani Bux, who was in front, reached the entrance of Shah Muhammad's house and challenged the culprits Lal Bux shot at him with his gun. Then Rasool Bux fired two shots in the air with his pistol to frighten away the other villagers. They fell back and the appellants escaped along with their companions. The villagers chased them but the culprits soon disappeared in a jungle near the house of one Manthar Khoso. The latter was called out to be given infor--mation about the incident. He in his turn informed the party that the appellant and his companions had come to his house on the previous evening and had proceeded in the direction of the village of Shah Muhammad after drinking water.
5. When the pursuers returned to the scene of the incident they found that Dhani Bux had succumbed to his injuries. At that time Mubarak, Rahmatullah, A.I Nawaz and Sher Muhammad also informed Shah Muhammad that they had recognised Lal Bux and Rasul Bakhsh amongst the culprits. Shah Muhammad then went to village Dur Muhammad Suhail to inform the Chairman Niaz Hussain, but finding him absent, he apprised his cousin Qurban A.I about the incident and then went to Mehar Police Station to lodge his report. This was done at 10-45 a.m. Of the 12th August 1965. The police station is at a distance of 8 miles from the house of Shah Muhammad.
6. After recording the first information report the Station House Officer proceeded to the scene of the incident and there found the body of Dhani Bux lying on a charpoy with gun shot injuries. He also found an empty cartridge lying near the dead body and two empty cartridges in the courtyard of Shah Muhammad. Blood-stained earth was also secured from the place. The appellant Rasool Bux was arrested at village Naushahro Feroze on the 16th August 1965, while his brother Lal Bux was arrested at Mori Gul Muhammad Wah on the 24th August 1965. The latter after interrogation led the police to the bridge on watercourse No 10-L Ex-Kundan canal and took out a single-barrel gun, soiled with mud, from underneath the bridge. On opening the gun it was found to contain one live cartridge. These were secured and sealed in the presence of Mashirs. Another person called Mooso was arrested on the27th August 1965. The later was put up for test identification parade in the sub- Jail Mehr. The parade was held under the supervision of a Magistrate and the suspect was- correctly pick out by the witnesses.
7. Unfortunately the empties recovered from the place or incident were not sent to the Ballistic Expert along with the gun recovered at the instance of the appellant Lal Bux but an identification test of the gun was held under the supervision of a Third Class Magistrate of Mehar. Manthar Khoso (P. W.
8. 10) identified it correctly as the gun which was being carried by Lal Bux when he came to his house the previous evening and took water.
9. On these facts the prosecution sent up for trial all three, namely; Lal Bux, Rasool Bux and Mooso on charges under sections 452, P. P. C.; 302/34, P. P. C. And 13-D of the West Pakistan Arms Ordinance.
10. At the trial the prosecution case regarding the complicity of the appellant and his co-accused was supported by Shah Muhammad, his wife Mst. Basran and his daughter Mst. Roshna who were corroborated in material particulars by their neiehbours Rahmatullah and Mubarak. The latter two had accompanied Dhani Bux when he responded to the cries of Shah Muhammad but was unfortunately shot dead as soon as he reached near the entrance to the house of Shah Muhammad. The evidence of Slier Muhammad who was one of the pursuers who chased tile accused for about a mile and Qurban A.I, the cousin of the Chairman of the local Union Council also support the prosecution version. Manthar Khoso (P. W. 10) corro--borated the presence of the accused in the locality on the previous evening. He also identified the gun then carried by Lal Bux as its butt had a plastic cover over it.
11. Lastly there is the recovery of the gun at the instance of the appellant Lal Bux and the evidence of motive which has been consistently deposed to by all the prosecution witnesses.
12. The accused just denied the allegations against them and maintained that they were innocent.
13. They even denied that they were arrested at the places suggested by the prosecution or that any weapon was recovered from them. Lal Bux alleged that the gun had been planted upon him.
14. On this evidence the trial Court gave the benefit of doubt to Mooso as his particulars had not been mentioned by any witness to the Police, but convicted the other two. Lal Bux who actually fired the fatal shot was sentenced to death but Rasool Bux was sentenced only to transportation for life.
15. They were both also convicted under section 452, P. P. C. And section 13-D of the Arms Ordinance, and sentenced to five years and 9 months' rigorous imprisonment respectively, on each of the above two counts.
16. It was contended before the trial Court that the appellant Rasool Bux could not be convicted under section 302/34, P. P. C. At the most, it was said, the offence committed by him fell under section 304, P. P. C. As he could not possibly have had the intention to commit the murder of Dhani Bux. The Court, however, repelled this contention and observed that: "Both the accused had come armed and each one of them knew that in the case of opposition the arms will be used and they actually used the arms at the time of incident and Lal Bux shot at Dhani Bux while Rasul Bux fired two shots in the air. Each of them shared the common intention and as such they both will be liable for the act of one another. Lal Bux in order to effect their escape intentionally fired at Dhani Bux when both of them were challenged. He will, therefore, be liable for maximum penalty of law provided under section 302, P. P. C. . . . . . As regards Rasul Bux, he fired in the air in order to effect their escape and also to frighten the witnesses etc. He did not fire at the deceased but shared the common intention with accused Lal Bux in the circumstances of the case."
17. On appeal this point did not receive the attention that it deserved in the High Court, for, there is no discussion in the judgment of the High Court regarding the applicability of section 34, P. P. C. The convictions of the appellant and his brother were, however, upheld and their sentences confirmed.
18. Leave was granted in this case to Rasool Bux only to consider the correctness of his conviction under section 302/34, P. P. C. In view of the fact that Rasool Bux had fired two shots in the air only, after the attempt at abduction of Mst. Roshna had been abandoned and the culprits were trying A to make good their escape from the house of Shah Muhammad could it not be said that the firing in the air by Rasul Bux indicated that his intention was different from that of Lal Bux who fired at Dhani Bux and killed him?
19. Learned counsel appearing in support of this appeal has contended that Rasul Bux could not by any means be said to have shared the common intention of Lal Bux to kill Dhani Bux. It is urged that the killing of Dhani Bux was the individual and independent act of Lal Bux and Rasul Bux did not share the intention of Lal Bux, because, the overt act attributed to him negatives such an intention.
20. Indeed according to the prosecution evidence itself Rasul Bakhsh only fired in the air. This could only mean that he had no intention of injuring, far less killing anybody, by the said firing. In support of this contention reliance is placed on a decision of the Privy Council in the case of Mahbub Shah v. King-Emperor (72 I A 148) and it is contended that proof of pre-concert is absolutely necessary in order to bring a case within the mischief of section 34 of the Penal Code. In the present case the acts done by the accused persons, it is contended, are so dissimilar that they not only do not establish a pre-concert but appear rather to indicate that they were acting with altogether different intentions and purposes.
21. It is no doubt true that it has been held by the Privy Council in several cases that to attract the principles of constructive liability under section 34 of the Penal Code it is necessary to establish something in the nature of a pre-concert but the Privy Council itself has in a subsequent case of Mamand and others v. Emperor (AIR1946PC45) pointed out that such a consensus could even be hastily conceived amongst the participants in the crime at the spur of the moment almost immediately before its execution.
22. It is interesting to note that in the case of Abdul Jabbar v. The State (PLD1964SC81) this Court itself held that section 34, P. P. C. Was attracted in a case where two persons both armed with deadly weapons ostensibly entered the house of the victim to commit robbery. The weapons carried by them led to the inference that they were prepared to use them if resisted in their adventure. Such resistence was in fact met but then one of the accused stabbed the person offering resistence while the other accused only held off the other inmates of the house by pointing a pistol at them and thereby sought to suppress their effort to seek assistance from outside. This Court held that this was by itself a sufficient indication that even the person who had merely held off the other inmates of the house by pointing his weapon at them shared the common intention with the one who had actually stabbed one of the resisters and, therefore, was constructively liable under section 34, P. P. C., even though he had personally refrained from using his weapon namely; his pistol, against any inmate of the house.
23. The other decisions namely, in the cases of Gheba and others v. The Crown (PLD 1949 Lah. 453); Rahmatullah v. The State (PLD 1961 Lah. 221) and Nazar Hussain v. The Crown (PLD 1951 Lah. 222) relied upon by the learned counsel are clearly distinguishable.
24. There is no doubt that to bring a case within the ambit of section 34, P. P. C. It is necessary that some overt act or acts must be established to lead to the inference that the participators in the crime acted in pre-concert or under some pre-arranged plan but this does not mean that every participant in the crime must be shown to have committed the same kind of act It is sufficient to show that they joined together in the commission of a particular act, for, then they must all be deemed to have intended the natural and inevitable consequences of that act even if some of them did nothing but merely helped by their presence in the commission of the act. It is in this sense that the Privy Council in Barendra Kumar Gosh's case (52 I A 40) observed that "even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes, as in other things, they also serve who only stand and wait". The question thus resolves itself into this, namely; as to whether the person sought to be made constructively liable did do anything with an intention to co-operate in the offence, if so, he is liable.
25. This case is, in our opinion, on all fours with the case of Abdul Jabbar v. The State earlier referred to.
26. There too the accused who had only held off the inmates of the house by pointing his pistol at them was held to be constructively liable for the stabbing done by his co-accused to prevent interception. We are, therefore, inclined to take the view that the learned Sessions Judge rightly formed the opinion that they had both acted in furtherance of the same common intention, namely; to make good their escape, if necessary, by the use of the weapons in their respective possession. We would, therefore, dismiss this appeal and uphold the conviction of the appellant Rasool Bux.
27. The Courts below have already made a distinction in his case and given him the benefit of the fact that he did not fire any fatal or effective shot by sentencing him only to transpor--tation for life as was done in the last cited case. The sentence is accordingly also maintained.