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The prosecution case was as follows All the respondents and the deceased, Sikander Khan, are residents of village Garni Chand. Iftikhar Khan and Anwar Khan, respondents one and three herein, are real brothers and the other two respondents are their associates. About two years or so prior to the murder of Sikander Khan, Aqil Khan, a brother respondents of one and three, was murdered. In connection with the said murder, the deceased, Sikander Khan, Ilyas Khan and two or three others were tried. However, they were acquitted about ten months prior to this incident. On October 16, 1967, the day on which Sikander Khan was murdered. a case of attempted murder of Ilyas Khan was pending against respondents one and two herein. Both of them had been released on bail about. a month prior to October 16, 1967. Respondents one and three strongly suspected that Sikander Khan was responsible for the murder of their brother, Aqil Khan, though there has been an acquittal by the court in his favour. On October 16, 1967, at about 8.30 P.M., Sikander Khan was sitting on a cot in front of his shop and was reading 'Jang Nama'. His brothers, P.Ws one and two, along with one Laddan Khan were also sitting near Sikander Khan listening to the reading of the epic. Respondents one and two armed with country made pistols and respondents three and four armed with lathis came in a body to the place, where Sikander Khan was seated. The first and the second respondents fired shots in quick succession at Sikander Khan. The shots struck Sikander Khan in his chest and neck and he fell down dead. On hearing the alarm of P.Ws one and two, the neighbours came and saw all the accused running away. Sikander Khan, on receiving the gun-shots died on the spot. The first information report was given by P.W. 1 at about 11.35 P.M. and it was recorded by the Head Constable, P.W. 7. The investigation was taken up by P.W. 8. The respondents surrendered in court on November 4, 1967. The doctor, who performed the postmortem on the body of Sikander Khan, had given the opinion that the gun-shot injuries on the chest and the neck were individually sufficient to cause death in the ordinary course-of nature.

Bearing in mind the above principles, we will now refer to the material evidence on record. The evidence of P.W. 1, brother of the deceased, is to the following effect :-

He first narrated the reasons for the enmity between the accused and Sikander Khan. At about 8.30 P.M. on October, 16, 1967, his brother, the deceased Sikander Khan, was sitting opposite to his shop and reading 'Jang Nama'. P.W. 1 and his brother, P.W. 2, were also with the deceased listening to the reading of the epic. Suddenly the four accused came together to the place where Sikander Khan was sitting. The respondents one and two,. who were armed with pistols, fired a shot each at Sikander Khan. The shots hit Sikander Khan in the chest and in the neck and he fell down dead. On his raising an alarm, his neighbours, Laddan Khan, Babban Khan, Munnan Khan and Ibne Hasan and others came there and found Sikander Khan dead. When respondents three and four came with the other accused, they had lathis with them. After the shooting, all the accused ran away. He gave the first information report at about 11.35 P.M. which was recorded by P.W. 7. The evidence of P.W. 2 is also substantially to the same effect. Surprisingly, P.Ws 1 and 2 have not been cross-examined, when they spoke of enmity between Sikander Khan and the accused.

Having due regard to the various decisions referred to above, the question is whether the evidence in the case before us establishes that the shooting of Sikander Khan by Respondents 1 and 2 was done in furtherance of the common intention of all the four accused. The evidence of PWs 1 and 2 is to the effect that all the four Respondents are- residents of the same village and Respondents 1 and 3, who are brothers, are bitterly inimical to Sikander Khan, the deceased. Respondents 2 and 4 are their close friends. There is evidence regarding murder of a brother of Res- pondent 1 and the acquittal of the deceased after trial in connection with that murder. The evidence is also to the effect that Respondents 1 and 2 were on bail at the material time, having been convicted by the Trial Court in connection with an attempt to murder one, Ilyas Khan, who was a close associate of the deceased. These facts have not been challenged by the accused in the cross-examination of PWS 1 and 2. Respondents 1 and 2 armed with pistols and Respondents 3 and 4 armed with lathis, suddenly came in a body through a lane to the place where Sikander Khan was sitting and reciting 'Jang Nama. Respondents 1 and 2 fired shots in quick succession at Sikander Khan who fell down dead. Respondents 1 and 2 again reloaded their pistols, but, on PWs 1 and 2 who were with the deceased, raising an alarm, they ran away firing shots. All the four accused ran away together.

When Respondents 3 and 4 were examined by the court under section 342, their only answer was that they had 'been implicated due to enmity of the witnesses. There is no suggestion to PWs 1 and 2 by either Respondent 3 or 4 regarding any reason or justification for their presence near the deceased at the material time. If once the evidence of PWs 1 and 2 is accepted, as we are inclined (1)(1924)L.R. 52 I. A. 40, 52.

to do,. the presence of the four accused together at the time of the occurrence stands clearly established. It is true that for invoking section 34 against the accused, prior concert or a prearranged plan has to be established. But as it is difficult to prove the intention of an individual. it has to be inferred from his act, or conduct and other relevant circumstances. It is in evidence that Respondents 1 and 3 are bitterly inimical to Sikander Khan and that Respondents 2 and 4 are their close associates. There is also evidence about the murder of the brother of the 1st Respondent and the deceased, Ilyas Khan and certain others being tried for that offence as also their acquittal in the said case. The evidence is also further to the effect that the 1st and 2nd Respondents made an attempt to murder Ilyas Khan by shooting him with a pistol some months before the incident. The said two accused were prosecuted and convicted by the Sessions Court. But about twenty days before the murder of Sikander Khan, both Respondents 1 and 2 had been released on bail pending their appeal. It was at that time that this murder took place. These statements made by PWs 1 and 2 have not been challenged by the 3rd and 4th Respondents. There is also no suggestion to the witnesses that Respondents 1 and 2 had hidden their pistols and they drew them out suddenly when they shot at the deceased. It is no doubt true that there is no evidence regarding any over tact having been done by Respondents 3 and 4 at the 'time when Sikander Khan was shot at. It is not necessary, to attract section 34, that any overt act must be done by the particular accused. The section will I* attracted if it is established that the criminal act has been done by anyone of the accused persons in furtherance of the common intention. If this is shown-and in this case we are satisfied that it has been so shown-the liability for the crime may be imposed on anyone of the persons in the same manner as if the act were done by him alone. Their accompanying Respondents 1 and 2, who were armed with pistols, in the background spoken to by PWs 1 and 2, they themselves being armed with lathis and all the four coming together in a body and running away together in a body after the shooting was over, coupled with no explanation being given for their presence at the scene, lead to the necessary inference of a prior concert and prearrangement and that the criminal act was done by Respondents 1 and 2 in furtherance of the common intention of all. Therefore, Respondents 3 and 4 will have to be held liable for the crime in the same manner as if the act were done by any one of them alone. In view of the circumstances mentioned above, in our opinion, Respondents 3 and 4 have to be held guilty under section 302 read with section 34.