WALI ULLAH, J.

( 1 ) TWO questions have been referred for decision by the Full Bench : 1. whether it is possible to convict an accused person of an offence under Section 304, Part II, read with Section 34, Penal Code ?

( 2 ) WHETHER to establish a charge under Section 325 read with Section 34, Penal Code, where several persons strike another with lathis, it is necessary to establish specifically that one or more of them actually caused grievous hurt ?" 2. At the time of the hearing before us the second question has been redrafted with a view to bring out more clearly its real implication. Redrafted, the second question stands thus :

"2 (a ). If a person is attacked by several persons numbering less than 5 and grievous hurt is caused, and it is not known who caused the grievous hurt, can all of them be convicted of causing grievous hurt, with the aid of Section 34, Penal Code ? 2 (b ). If a person is attacked by several persons numbering less than 5 and grievous hurt is caused, and it is known which of them caused the grievous hurt, can others be convicted of grievous hurt with the aid of Section 34 ?"

( 3 ) WITH regard to the first question, it may be stated at once, there is a serious conflict of judicial opinion. Learned counsel for the parties have invited our attention to a large number of cases, the more important of which will be referred to and discussed at appropriate places in the course of this judgment.

( 4 ) IN order to give an answer to the first question it is necessary to examine, first of all, the scope of Section 34 and secondly the scope of Section 304, Part II, Penal Code. Section 34, as it stands today, runs thus :

"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. " As the section stood originally, the words "in furtherance of the common intention of all" were not there. By Section 1 of Act XXVII [27] of 1870, however, in place of the old Section 34 of the code, a new Section 34 was substituted with the addition of the words "in furtherance of the common intention of all. " This was done in order to make the object of this section clear.

( 5 ) SECTION 34 is one of the sections contained in chap. II, Penal Code, headed "general explanations. " It is one of a group of sections which have to be read together, viz. , Sections 32, 33, 34, 35, 37 and 38, in order to appreciate its full significance. As a matter of fact, Sections 35, 37 and 38 provide the background against which provisions of Section 34 are to be judged.

( 6 ) SECTION 32 makes it clear that "acts" includes "illegal omissions. " Section 33 explains that the word "act" signifies a single act as well as a series of acts. Similarly the word "omission" (as single omission?) as well as a series of omissions. Section 35 reads :

"whenever an act which is criminal by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in that act with such knowledge or intention, is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention. "

( 7 ) SECTION 35, in effect provides for a case where several persons join in an act which is not per se criminal but is criminal only if it is done with a criminal knowledge or intention in such a case each of those persons who joins in the act with that particular knowledge or intention will be liable for the whole act as if it were done by him alone with that knowledge or intention and those who join in the act but have no such knowledge or intention will not be liable at all.

( 8 ) SECTION 37 provides :

"when an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing one of those acts either singly or jointly, with any other person, commits that offence. "

This section, in effect, provides for a case where sever