P L D 2025 Balochistan 72
Before Muhammad Kamran Khan Mulakhail and Iqbal Ahmed Kasi, JJ
ABDUL WALI and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. 514 and 532 of 2023, decided on 10th June, 2024.
(a) Criminal Procedure Code (V of 1898) ---
----S. 367 ---Penal Code (XLV of 1860), Ss. 302(b), 393 & 34---Rewriting of judgment ---
Scope ---Accused were charged for murdering the brother of complainant while attempting to
commit robbery---Perusal of the judgment impugned revealed that at the first instance, the
Trial Court, observed that the accused persons with their common intention, had committed the murder of the deceased, while in the subsequent para, the Court deviated from its own views and mentioned that sole fire was made at deceased due to panic and fear, meaning thereby, that they had no prior intention to kill the deceased---Thus, the Trial Court had taken erroneous views in the judgment impugned and violated the provisions of S. 367, Cr.P.C., therefore, the judgment impugned was not a proper judgment at all, as legally a judgment should invariably discuss the merits/demerits of the statements of the witnesses,
with reference to the charge and a proper judgment must specify the points for determination
and the reasoning of the Court for such determinations ---Though normally minor omissions
and commissions were curable and could be ignored by the Appellate Courts, but failure to
specify the points of determination, absence of reasons for decision about the contentions
raised in the matter or a total lack of reasoning, constituted a material defect in the judgment which could not be conveniently overlooked---In other words, a judgment which was not lucid, complete, self contained and unambiguous does not fulfill the requirements of S. 367, Cr.P.C --
-Accordingly, the conviction recorded on the basis of such judgment could not be
sustained/upheld--- Case was remanded to the Trial Court for the limited purpose to re -write
the judgment on the basis of existing judicial record within two months strictly in accordance with law.
Muhammad Nawaz and others v. The State through P.G. and others PLD 2022 SC 523
rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 393 & 34--- Criminal Procedure Code (V of 1898), S.367---Qatl -i-amd,
attempt to commit robbery, common intention ---Appreciation of evidence ---Contents of
judgment ---Scope ---Accused were charged for murdering the brother of complainant while
attempting to commit robbery---Although, it was an admitted fact that the Trial Court while framing charge against the accused persons had charged them for the offence of common intention falling under S. 34, P.P.C., but while deciding the lis, each accuse d was dealt on the
basis of 'individual liability'--- Conviction was recorded against accused "B" for the murder
of the deceased, however, the applicability of S. 34, P.P.C., with reference to other accused was totally ignored and they were convicted on the basis of individual liability without assigning a 'definite finding' regarding their participation in commission of offence in furtherance of their common intention falling under S. 34, P.P.C ---When all the accused
persons were specifically charged for ha ving committed the crime in furtherance of their
common intention, the trial Court ought to have given a 'definite finding' regarding the applicability of Ss. 302 & 34, P.P.C., to all the accused persons qua the charge of murder ---
Trial Court ignored the fact that all the accused persons committed their respective overt acts in furtherance of their common object, and as such, they were part of the unlawful assembly, hence, the conviction and sentence recorded against the accused on the basis of individual liability in the absence of any 'definite finding' to negate that the act of each individual was without premeditation, was beyond the scope of law ---Act of each individual, if committed in
furtherance of the common intention, the facts were to be dealt conjointly to arrive at a conclusion in the spirit of law ---Case was remanded to the Trial Court for the limited
purpose to re -write the judgment on the basis of existing judicial record within two months
strictly in accordance with law.
Rehmatullah Bareech and Ehsanullah Kakar for Appellants (in Criminal Appeal
No.514 of 2023).
Younus Mengal, A.P.G. for the State (in Criminal Appeal No.514 of 2023).
Muhammad Bilal Khan for Appellant (in Criminal Appeal No.532 of 2023).
Younus Mengal, A.P.G. for the State (in Criminal Appeal No.532 of 2023).
Date of hearing: 27th May, 2024.
JUDGMENT
IQBAL AHMED KASI, J. ---The instant Criminal Appeals have been preferred by
appellants Abdul Wali son of Abdul Qadir, Barat alias Lalai son of Juma Khan and
Noorullah son of Abdul Qadir, challenging the validity of the judgment dated 13th November, 2023 ("the impugned judgment") passed by the learned Additional Sessions Judge -VII, Quetta ("the trial Court"), whereby, the appellant Barat alias Lalai was convicted
under Section 300, P.P.C. and sentenced under Section 302(b), P.P.C. to imprisonment for life as Ta'zir and to pay Rs.500,000/ - (rupees five hundred thousand) as compensation under
Section 544, Cr.P.C. to be paid to the legal heirs of deceased person Ain- ud-Din and in
default to further undergo S.I. for 06 (six) months. He was also convicted under Section 393,
P.P.C. read with Section 34 P.P.C. to undergo R.I. for three years and to pay Rs.100,000/ -
(rupees one hundred thousand) as fine and in default to further undergo SI for 03 (three)
months. Whereas; appellants Noorullah and Abdul Wali were convicted and sentenced under
Section 302(c) read with Section 34, P.P.C. to suffer R.I. for 14 (fourteen) years each and to pay Rs.200,000/ - (rupees two hundred thousand) each, as compensation under Section 544-
A, Cr.P.C. to the legal heirs of deceased Ain- ud-Din and in default to further undergo SI for
03 (three) months each. Similarly, they were also convicted and sentenced under Section 393, P.P.C. read with Section 34, P.P.C. to undergo RI for 03 (three) years and to pay a fine of Rs.100,000/ - (rupees one hundred thousand) each and in default to further undergo SI for
03 (three) months each. Benefit of Section 382 -B, Cr.P.C. was also extended in favour of the
appellants/accused.
2. Since both the Criminal Appeals are arising out of the same judgment of the trial
Court, therefore, we intend to dispose of the same through this common judgment.
3. The prosecution case, in brief, as spelt out from the FIR bearing No.67 of 2021 of
Police Station Pashtoon Abad, Quetta, which was registered on the written report moved by complainant Shoukat Ali son of Muhammad Zaman (PW -1), is that on 23.06.2021, at about
02:27 a.m. he was present at Sirki Road, Quetta, meanwhile, received a telephonic information from his house that his elder brother, namely, Ain- ud-Din, has been killed by
some unknown persons. After receiving such information, he reached Civil Hospital Quetta, where, he found the dead body of his brother lying in a pool of blood. On query, he came to know that his brother along with his business partner, Mehmood were coming back home from their property dealing shop; Mehmood left for his house, situated in Street No.7, Khushal Road, while his brother was coming to his home via Street No. 1, Khushal Road, where some unknown persons committed his murder by means of firing. Consequently, the FIR was lodged.
4. After registration of the case, initially the investigation of the case was entrusted to
PW-8 Muhammad Ishaq, SI, while further investigation of the case was shifted to Crimes
Branch, Quetta and investigation was entrusted to PW- 9, IP, Muhammad Mukhtiar, who got
arrested the accused persons and submitted challan before the trial Court.
5. The trial Court framed a formal charge and read over it
to appellants, to which, they pleaded not guilty and claimed trial, therefore, the
prosecution was directed to adduce its side of evidence in support of the accusations and the
prosecution produced the following witnesses:
PW-1 Shoukat Ali, the complainant of the case.
PW-2 Dr. Aysha Faiz, Lady Medico Officer, Civil Hospital, Quetta, who examined
the dead body of deceased Ain- ud-Din
PW-3 Muhammad Sohail, ASI, witness of recovery memo
PW-4 Mehmood, is the witness of the case.
PW-5 Samina Nasreen, Judicial Magistrate, who recorded the statements of accused
persons under Section 164, Cr.P.C.
PW-6 Muhammad Sadiq ASI, witness of seizure memos.
PW-7 Usman Bin Majahid, ASI, witness of seizure memo.
PW-8 Muhammad Ishaque, SI, First Investigating Officer of the case.
PW-9 Muhammad Mukhtiar, IP/SI, second Investigating Officer of the case.
6. After the close of prosecution side, the appellants/accused persons were examined
under Section 342, Cr.P.C. whereby, they once again denied the prosecution accusation,
however, neither they opted to record their statements under Section 340(2), Cr.P.C. nor produced any witness in their defence.
7. On conclusion, the trial Court, vide impugned judgment convicted and sentenced the
appellants/accused persons, as mentioned herein above.
8. Learned counsel for the appellants in both the appeal, inter alia contended that the
impugned judgment passed by the trial Court is contrary to law and facts; that the FIR was lodged on the basis of hearsay evidence and there is no direct evidence available on record to connect the appellants with the commission of the alleged crime; that the witnesses produced by the prosecution are interested witnesses, whereas, no independent witness was associate by the prosecution, as the occurrence took place in a thickly populated area; that the appellants have been booked on the basis of confessional statements under Section 164, Cr.P.C., which was also recorded after delay of about 08 days; that there are major contradictions in the statements of the prosecution witnesses with regard to the recovery of the dead body of the deceased; that the crime weapon has not been produced before the trial Court, whereas, the same was sent to FSL for examination with considerable delay.
9. On the other hand, learned APG, while opposing the contention of the learned counsel
for the appellants, supported the impugned judgment and requested for dismissal of the instant appeals, being devoid of merits.
10. We have heard the learned counsel for the appellants, learned APG and also have
gone through the entire record with their able assistance. As per prosecution's case, all the accused persons in a preplanned manner committed the murder of complainant's brother and all the accused had shared common intention with principal accused Barat and also facilitated the murder. Section 34, P.P.C. has laid down the principle of constructive liability. If several persons would unite with common purpose to do any criminal offence, all those who assist in the completion of their object, would be equally guilty. Foundation for constructive liability was the common intention in meeting accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence. In order to constitute an offence under Section 34, P.P.C., it is not required that a person should necessarily perform any act with his own hand. If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention all of them join together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, do the act but if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of Section 34, P.P.C.
11. To formulate the imposition of Section 34, P.P.C. and to ascertain whether all the
accused persons shared their intention with principal accused Barat for commission of
murder of the deceased Ain -ud-Din, the trial Court, in paragraphs No.23 of the judgment
impugned has held that:
"The principal accused Barat and the accused persons Noorullah and Abdul Wali, are
close companions, therefore, such intimacy between them has confirmed that the accused Barat not only shared his intention for commission of the said offence rather committed overt act by standing upon the crime scene with a TT pistol. They, in furtherance of common intention of each other, have committed the murder of deceased person Ain -ud-Din.
The perusal of judgment impugned further reveals that in the paragraph No.32, the trial Court, has held as under:
"The above mentioned discussion of prosecution evidence strongly proved that prosecution has remained successful in bringing home guilt to the accused person facing trial beyond shadow of any reasonable doubt for committing the murder of deceased person Ain -ud-Din, however, accused persons facing trial are the sole
breadwinners of their respective families,
first offender having no proved or convicted criminal history
and as per their statements under section 164, Cr.P. C. sole fire was made at deceased due
to panic and fear, meaning thereby that they had no prior intention to kill the deceased
due to which normal penalty of death is not being awarded under section 302(b) P.P.C. considering the same as mitigating circumstances in the case."
12. The perusal of above portions of the judgment impugned reveal that at the first
instance, the trial Court, observed that the appellants/accused with their common intention, have committed the murder of the deceased, while in the subsequent para, he deviated from his own views and mentioned that sole fire was made at deceased due to panic and fear, meaning thereby, that they had no prior intention to kill the deceased. In our considered view, the trial Court has taken erroneous views in the judgment impugned and violated the provisions of Section 367, Cr.P.C., therefore, we have no hesitation to hold that the judgment impugned is not a proper judgment at all, as legally a judgment should invariably discuss the merits/demerits of the statements of the witnesses, with reference to the charge and that a proper judgment must specify the points for determination and the reasoning of the Court for such determinations. Though normally minor omissions and commissions are curable and could be ignored by the appellate Courts, but on account of failure to specify the points of determination, absence of reasons for decision about the contentions raised in the matter or a total lack of reasoning, constituted a material defect of judgment which could not be conveniently overlooked. In other words, a judgment which is not lucid, complete, self contained and unambiguous does not fulfill the requirements of Section 367, Cr.P.C. Accordingly, the conviction recorded on the basis of such judgment cannot be sustained/upheld.
13. Although, it is an admitted fact that the learned trial Court while framing charge
against the appellants had charged them for the offence of 'common intention' falling under Section 34, P.P.C., but while deciding the lis, each accused was dealt on the basis of 'individual liability'. The conviction was recorded against the appellant Barat for the murder of the deceased Ain -ud-Din, however, the applicability of Section 34, P.P.C. with reference
to other appellants/accused was totally ignored and they we re convicted on the basis of
individual liability without assigning a 'definite finding' regarding their participation in commission of offence in furtherance of their common intention falling under Section 34, P.P.C. When all the appellants were specifically charged for having committed the crime in furtherance of their common intention, the trial Court ought to have given a 'definite finding' regarding the applicability of Sections 302, 34 P.P.C. to all the accused persons qua the charge of murder. The tr ial Court ignored the fact that all the accused persons committed
their respective overt acts in furtherance of their common object, and as such, they were part
of the unlawful assembly, hence, the conviction and sentence recorded against the accused on
the basis of individual liability in the absence of any 'definite finding' to negate that the act of each individual was without premeditation, is beyond the scope of law. The act of each individual, if committed in furtherance of the common intention, the f acts are to be dealt
conjointly to arrive at a conclusion in the spirit of law of the land. We may place reliance to the judgment titled as "Muhammad Nawaz and others v. The State through P.G. and others",
of the Hon'ble Supreme Court of Pakistan, reported as PLD 2022 Supreme Court 523, has
given elaborative guidelines for the application of Section 302, P.P.C. It would be advantageous to reproduce the relevant portion of the judgment. The same reads as under: --
"7. This Court in a recent judgment dated 26.11.2020 passed in 2022 SCMR 1187 (Criminal Petitions Nos. 1371 and 1651- L of 2016) has given elaborative guidelines
for the application of Section 302, P.P.C. It would be advantageous to reproduce the relevant portion of the judgment. The same reads as under: -
"For the elaborative analysis qua the application of provision of Section 302, P.P.C., it would be advantageous to reproduce Section 300, P.P.C. wherein 'qatl -i-amd ', has
been defined as under: -
Qatl-i-amd: Whoever, with the intention of causing death or with the intention of
causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with- the knowledge that his act is so imminently
dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl -i-amd.
It would also be in "fitness of things" to reproduce Section 302, P.P. C., which reads as under: -
"302. Punishment of qatl -i-amd: Whoever commits qatl -i-amd shall, subject to the
provisions of this Chapter be:
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts
and circumstances of the case, if the proof in either of the forms specified in Section
304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to
twenty -five years, where according to the Injunctions of Islam the punishment of
qisas is not applicable:
Provided that nothing in clause (c) shall apply where the principle of fasad- fil-arz is
attracted and in such cases only clause (a) or clause (b) shall apply."
9. The provision of Section 302, P.P.C. provides punishment for the commission of
qatl-i-amd. The punishment of qatl -i-amd has been categorized under the heads "(a),
(b), (c) ". The provision of Section 302(a), P.P. C. is reflection of punishment as provided in Islamic system by way of qisas. The word 'qisas' means return of evil for evil and it also denotes retaliation. Another word 'retribution' is also synonymous which means a punishment inflicted in return for the wrong and thus distinctively stresses the operation of the strict justice by administering merited punishment. The application of Section 302(a), P.P.C. provides the return in the same coin persuading the offender to be done to death in the same manner he committed death of the fellow person. However, there are certain legal requirements for application of Section 302(a), P.P.C.. Section 299(k), P.P.C. defines qisas in the following terms: -
"qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali ',
The Legislature has specifically laid down that the initiation of proceedings under Section 302(a), P.P.C. is subject to qualifying prerequisites as laid down in Section 304, P.P.C. The same reads as under: -
"304. Proof of qatl -i-amd liable to qisas, etc.: (1) Proof of qatl -i-amd shall be in any
of the following forms, namely: -
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun- i-Shahadat, 1984 (P. O.
No. 10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to qisas.
Bare perusal of the aforesaid provision broadly emphasis two fold conditions, (i)
voluntary and true confession regarding the commission of the offence, (ii) qualifying the postulates of Article 17 of the Qanun- e-Shahadat Order, 1984. Article 17 of the
Qanun- e-Shahadat Order, 1984, further emphasis the competence of a person
qualifying it to be a truthful witness as required in accordance with the injunctions of Islam as laid down in Holy Quran and Sunnah. The primary/foremost qualification for a person to appear as a truthful witness in a case falling under 'qisas' is that he must fulfill the condition of tazkiya -tul-shahood. In ordinary meanings, it is an accepted
rule of tazkiyatul -shahood, that the credibility of the witness shall be examined
through credible person of the same walk of life to which the witness belongs. Tazkiya- tul-shahood also entails an open and confidential inquiry regarding the
conduct of the witness to ascertain whether the witness is credible or otherwise. The word 'from the same walk of life' is most essential attribute regarding this aspect. However, there are two modes provided to evaluate tazkiya -tul-shahood, (i) open, (ii)
confidential. To ascertain the credibility of a witness on the touchstone of tazkiya -tul-
shahood, the Judge is under obligation to inquire the credentials of the witness
proposed to testify during the court proceedings to adjudge his truthfulness. Likewise,
he can also adopt the way of secret inquiry to further satisfy his conscience about the credibility of the witness for that he can delegate/appoint someone else to ascertain the truthfulness of the person claiming acquaintance with the facts and circumstances
of the case. There is no constraint that with the changing situation in the advanced
era, the modern devices/technical assistance can also be utilized to persuade the
piousness of the witness to arrive at a conclusion which endorses the believability qua the character of the witness by the Presiding Officer.
10. Section 302(b), P.P.C. was made part of Section 302, P.P.C. by the Legislature,
which equates provision of Section 302(a), P.P.C. regarding the infliction of sentence
of death. In fact there are two sentences provided under the head 302(b) i.e. death or
imprisonment for life as Tazir. There is marked distinction qua consideration and
application of sentence which is also based upon other considerations. The parameters are entirely on different benchmark wherein strict compliance of Section 304, P.P. C. or applicability of Article 17 of the Qanun- e-Shahadat Order is not required.
Likewise, the mode and manner of ascertaining the guilt and execution of the sentence is altogether different. The intention behind this was in fact to meet the requirements of law and order situation prevailing in the society with an intent not to let any crime unattended/un- addressed and further not to let any criminal escape from
the clutches of law. The insertion of the word 'tazir' under the head 302(b), P.P.C. has a specific significance. The word 'tazir' is defined in Section 299(l) as under: -
"299(l) "ta'zir" means punishment other than qisas, diyat, arsh, or daman"
The literal meaning of word 'tazir' is chastisement. Undeniably the word 'tazir' means punishment inflicted by the Court other than 'qisas'. As the punishment of 'tazir' is not prescribed by the Holy Quran or Sunnah, therefore, it cannot be as stern and stringent as that of qisas. It includes punishment of imprisonment, forfeiture of property and fine. A discretion has been left with the court assigned with the matter to decide and inflict either of the punishments commensurating with the overt act as surfaced according to facts and circumstances of the case. The Court of competent jurisdiction is fully justified to award sentence subject to assigning justiciable reasons to meet the ends of justice. The offence under Section 302(b), P.P.C. is otherwise made compoundable by the application of Section 345(2), Cr.P.C, which in addition further qualifies that if all the legal heirs have compounded the offence, the Court is empowered to ensure that the parties may have buried the hatchets once for all.
11. Provision of Section 302(c), P.P.C. is somewhat similar to the erstwhile Section
304, P.P.C. The provision of Section 302(c) in the original text was an exception of
Section 302, P.P.C. while following the requirements of erstwhile Section 304, P.P.C. This provision covers all those offences which were committed resulting into culpable homicide not amounting to murder and as such cannot be equated with the requirements for application of sentences as provided under Section 302(a)(b), P.P.C. Any occurre nce though resulted into an act of homicide but it was committed without
element of mens rea, premeditation or ill design, would squarely attract the provision of Section 302(c), P.P.C. The framers of the law while inserting the said provision provided sentence of imprisonment which may extend to 25 years. The sentence of 25
years is clothed with discretionary powers of the court contrary to sentences provided
under Section 302(a)(b), P.P.C. Broadly speaking this distinction qua the discretionary power to inflict sentence is based upon the fact that the law makers were conscious of the situations like free fight, case of two versions, undisclosed story, sudden affair, question of ghairat, absence of mens rea, self defence and cases
initiated due to the element of sudden provocation. In ordinary speech, the meaning of
'provocation' is said to be incitement to anger or irritation. In English law it has a
meaning based on anger but it is a word used to denote much more than ordinary anger. To extenuate the killing of a human being provocation has always needed to be of a special significance. Throughout in the proceedings of the cases it is seen to be something which incites immediate anger or "passion", which overcomes a person's self-control to such an extent as to overpower or swamp his reason. In other words
provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable person to lose self control. Analyzing the concept of 'provocation in law under the Common Law of
England, Lord Devlin, delivering thejudgment of the Judicial Committee of the Privy
council in Lee Chun -Chuen v. The Queen (1963 1 All ER 73) held as under: -
"Provocation in law consists mainly of three elements the act of provocation, the loss
of self -control, both actual and reasonable and the retaliation proportionate to the
provocation."
So, it can be said that there are mainly four elements which need to be established to
avail the defence of provocation i.e. (i) the provoking circumstances, (ii) the accused's
loss of self -control resulting from the provoking circumstances, whether reasonable or
not; (iii) whether the provocation could have caused the ordinary person to lose self -
control, (iv) the retaliation was proportionate to the provocation. Whether the
accused's loss of self -control was a result of the provoking circumstances is a
subjective test. To prove the element of provocation, there are two more conditions
i.e. (i) it should be prompt and (ii) it was retaliated without inordinate delay. We have also noticed that apart from the circumstances narrated above inviting application of Section 302(c), P.P.C. another situation has now erupted in the society having direct nexus with such like situations, i.e. a deliberate and malicious act intended to outrage religious feelings of any class of people by insulting its religion or religious rituals by use of derogatory remarks, which further extend the scope of cases falling under the ambit of sudden provocation.
(Emphasis provided)
12. In United Kingdom almost in similar situation, the framers of the law enacted an Act called "Homicide Act, 1957" in which they have dealt with such like situation under the 'dictum,' 'diminished liability'. To evaluate such like situation, the mental faculty of the offender was to be gauged according to prevailing circumstances in which the offence was committed and as such it was given precedence over the already existing liability regarding culpable homicide amounting to murder. While drawing analogy from the said legislation, it can be safely assumed that the provisions of Section 302(c), P.P.C. can also be equated/adjudged keeping in view the state of mind of the offender, his surrounding circumstances and the mode of commission of the offence. If those are adjudged conjointly, it would certainly imprint a better picture before the court of law to adjudicate the matter, which might commensurate with the allegation.
13. A careful analysis of the aforesaid categories falling under the provision of Section 302, P.P.C. abundantly makes it clear that the provision of Section 302(a), P.P.C. is a distinct provision having different mode and manner of application with different considerations exclusively derived from the Islamic judicial system. The proceeding under the aforesaid provision is a rare phenomenon whereas the majority of the cases dealt with by the courts below fall under Section 302(b), P.P.C. As stated above, provision of Section 302(b), P.P.C. provides two sentences i.e. death, (ii)
imprisonment for life. Murder cases exclusively falling within the ambit of Section 302(b), P.P.C. would be dealt with in a manner exclusively depending upon the number of assailants. Undeniably a single assailant can commit the aforesaid offence but if the number of assailants is more than one and the offence is committed in furtherance of common intention then the provision of Section 34, P.P.C. would
certainly attract. Similar to that if the tally of the accused is five or more and the
offence is committed in furtherance of common object then the provision of Sections 148/149, P.P.C. would be applicable. The learned Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of Section 34, P.P.C. (common intention) or Sections 148/ 149, P.P.C.
(common object). These two legal aspects are to be addressed with the application of
the aforesaid provision of Section 302(b), P.P.C. depending upon the number of
assailants. It is bounden duty of the courts below to ascertain the aspect of common intention or common object primarily at the time offraming of the charge on the basis of contents of FIR, statements under Sections 161 and 164, Cr.P.C, if any, final report under Section 173, Cr.P. C. and other attending documents collected by the Investigating Officer during investigation. The Trial Court is equally responsible to give a definite finding qua the applicability of Section 34, P.P.C. or Sections 148/149, P.P.C. at the time of conclusion of the trial while handing down the judgment. Now adverting to the moot point which was raised during the proceedings that if anybody
is found guilty of commission of offence attracting the provision of Section 302(b),
P.P. C., the co -accused can be saddled with the responsibility on the basis of
individual liability or the whole occurrence has to be decided keeping in view that the
offence was committed in furtherance of their common intention and the provision of Section 302(b), P.P.C. would be applied conjointly against the persons joining hands
falling under either of the categories i.e. common intention or common object falling
under Section 34 or 148/149, P.P.C. depending upon the number of persons facing
charge. We may observe that any judgment which concludes the commission of offence falling under Section 302(b), P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be
squarely in defiance of the intent and spirit of law on the subject.
(Emphasis provided)
14. Section 302(c), P.P.C. is an exception to the aforesaid provision under which in presence of a clear finding that the offence committed was not in furtherance of common intention or common object, however, the court otherwise comes to the conclusion that the prosecution has proved its case to the hilt against the accused, the Court is under legal obligation to record conviction and sentence according to the role of every assailant constituting a criminal act according to overt act ascribed to him. The framers of the law while inserting Section 302(c), P.P. C. wisely provided sentence which might extend to 25 years. It was done with an intent to provide an opportunity to the court of law to inflict sentence proportionate to the act of the assailant according to the facts surfaced during the course of proceeding. It is not out of context to highlight that the Trial Court prior to proceeding with the matter as stated above has to render a definite finding qua the fact that the incident is not result of common intention or common object which has a substantial importance to attract the aforesaid provision. Any slackness on the part of the court to ignore this aspect might infringe the rights of either of the parties involved in the process of law which is an essential attribute of court proceedings, denial of which might create imbalance, resulting into chaos in the society. The concept of safe administration of criminal justice and maintaining equilibrium qua the protection of legal rights is attire of the judicial system. Any defiance to the said balance might frustrate the confidence of the public which has to be at the highest pith in a civilized society. The courts of law can gain the confidence by imparting fair, equitable and justiciable dispensation of justice eliminating any possibility of discrimination on the basis of gender, race, religion, colour, caste, creed, status and language etc. The Judges have to discharge this arduous task with utmost care and caution so that public confidence in judicial process is not shattered."
(Emphasis provided)
Furthermore, the Hon'ble Supreme Court of Pakistan, in the judgment titled as "Bashir Ahmed and others v. The State and others", 2022 SCMR 1187 (Criminal Petitions Nos.1371 and 1651- L of 2016), has given following guidelines to the Courts to follow in future:
"15. For what has been discussed above, we are inclined to issue following guidelines to the courts below to follow in future:
i) that the Trial Court seized with the criminal trial is squarely required to adhere to
the provision of Sections 265- C, 265 -D, Cr.P.C for the purpose of initiation of trial,
before framing of charge as ordained to meet the spirit of the law of the land;
ii) that the Trial Court is under obligation to fulfill the requirement as stated above, thereafter to frame charge, while minutely looking into the contents of the crime report, statement of the prosecution witnesses under Section 161, Cr.P. C, report under Section 173, Cr.P. C and all other documents appended with the challan with an intent to evaluate whether the criminal act as disclosed has been committed in furtherance ofjoining hands, which attracts the ingredients of common intention (Section 34, P.P.C.) or common object (Sections 148/149, P.P.C. read with the substantive offence), if so, the charge would be framed accordingly;
iii) that the Trial Court after recording of evidence, statement of the accused under
Section 342 Cr.P.C would provide an oppor -tunity to the accused to lead defence, if any
and further to appear under Section 340(2) Cr.P. C (if he intends to appear) and defence
evidence, if any, thereafter, it is obligatory for the courts to give judgment with definite finding qua the element of common intention or common object with reference to the substantive offence;
iv) that the Court proceeding with the matter, if reaches to the conclusion that the offence
committed is an individual liability then the provision of Section 302(c), P.P.C. would
be squarely applicable and each accused would be dealt with according to the gravity
of allegation, if any?
Note: The Trial Court while rendering such finding has to disclose judicial reasoning."
(Emphasis provided)
For what has been discussed above, the instant appeals are partly allowed, the
judgment impugned of the trial Court is set aside and the matter is remanded back to the trial Court for a limited purpose to re -write the judgment on the basis of existing judicial record
within two months strictly in accordance with law and the guidelines given in Criminal Petitions Nos. 1371 and 1651- L of 2016 (supra with reference emphasis provided). The
appellants/accused would be dealt with as under trial prisoners before the trial Court, during pendency of the lis before the trial Court.
JK/56/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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