MUHAMMAD JAMIL Alias LOLI AND ANOTHER vs The STATE
This criminal appeal before the Supreme Court of Pakistan arose from the conviction of two appellants for the murder of one Rab Nawaz. The core legal question was whether Section 34 of the Pakistan Penal Code 1860 was correctly applied in convicting both appellants, given that only one bullet struck the deceased while the other missed. The Court held that the conviction under Section 302 read with Section 34 of the Pakistan Penal Code 1860 was legally sound. The evidence established that both appellants arrived armed and fired shots at the deceased simultaneously, demonstrating a shared common intention to commit the murder. The Court affirmed that even if it were uncertain which specific appellant fired the fatal shot, their joint action and presence with a common purpose brought them within the ambit of Section 34. The key principle laid down is that where multiple accused act in concert with a shared intent to kill, they are vicariously liable for the resulting death, regardless of which specific act caused the fatal injury.
- Does the application of Section 34 of the Pakistan Penal Code 1860 require that the fatal injury be attributed to a specific accused?
- Can two persons be convicted for murder under Section 302 read with Section 34 of the Pakistan Penal Code 1860 when only one bullet strikes the deceased?
- Does the presence of multiple armed assailants acting in concert satisfy the requirement of common intention under Section 34 of the Pakistan Penal Code 1860?
- Section 34, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 88, Code of Criminal Procedure 1898
- Section 89, Code of Criminal Procedure 1898
1. MUHAMMAD YAQUB ALI, J.-Leave to appeal was granted in this case to consider weather section 34 of the Pakistan Penal Code was properly applied by the Courts below in convicting Muhammad Jamil alias Loli and his brother Muhan mad Saeed of the offence of murdering one Rab Nawaz on the morning of 14-3-1970 in the tea shop of Nawab P. W. 3 in village Kakki, Police Station Ghauriwala, District Bannu.
2. The deceased was hit by '303 bullet fired by one of the two appellants which caused his instantaneous death. The second bullet fired by the other appellant misses' the deceased and hit a small wooden almirah hanging by the wall of tea shop. A broken piece of the broken door of almirah which was pierced by the bullet and four pieces of the bullet were recovered from, the wall by the Investigating Officer who deposed to it as the 12th prosecution witness in the case.
3. According to the ocular evidence furnished by Bahadur Khan P. W. 3, Latif Khan P. W. 4 and Mirzad Khan P. W. 5 the deceased was sitting in the tea shop of Nawab P. W. 3 when the appellants accompanied by their brother Hamzullah (acquitted) arrived there each armed with 11 shot .303 rifle. Near the entrance door of the tea shop Hamzullah shouted to the appellants that Rabnawaz be killed. At this the deceased got up when both the appellants fired a shot each at him. The deceased was hit. He reeled back and fell dead inside the shop. The three accused then decamped carrying their respective weapons with them.
4. Hamzullah was arrested on the 17th March, 1970 but the two appellants absconded. Proceedings were initiated against them under sections 88 and 89 of the Criminal Procedure Code whereupon they surrendered on the 4th of August 1970.
5. The account given by the three eye-witnesses which was corroborated by Nawab P. W. 3 was accepted by the Courts below with the exception that Hamzullah who had not fired a shot at the deceased was given the benefit of doubt by the High Court and acquitted.
6. On examining the record and keeping in view the circumstances in which Rab Nawaz was killed we see no proper ground to differ with the appraisal of the evidence by the learned Judges of the High Court. The guilt of the appel--lants is, therefore, no longer in issue. What we are required to determine is whether section 34 of the P. P. C. Has been correctly applied in the case.
7. As mentioned earlier the deceased was hit by only one bullet. The' other bullet missed him and hit a wooden almirah hanging by the wall of the almirah through which the bullet had passed and four broken pieces of the bullet from the wall of the shop fully corroborated the ocular evidence that both the appellants had fired at the deceased. In that view they shared the common intention to kill the deceased notwithstanding that the bullet fired by only one of them had hit the deceased.
8. Even if only one of the' appellants fired two shots at the deceased as was urged by Mr. Nazirullah Khan learned counsel for the appellants, the very presence of the other appellant armed with the common intention within the ambit of section 34, P. P. C. To kill Rab Nawaz deceased. The conviction of both the appellants under section 302 read with section 34, P. P. C. Is therefore not open to exception.
9. There is something to be said in the matter of sentence of death awarded to Muhammad Jameel alias Loli appellant. The other appellant Muhammad Saeed was sentenced to transportation for life. There was no background of enmity between the deceased and the appellants prior to the present occurrence. The motive mentioned in the F. I. R. By Bahadur Khan P. W. 2, maternal uncle of the deceased, is that on the previous day Rab Nawaz had dishonoured the brother of the wife of Muhammad Jameel appellant. The words used in the F. I. R. Are.---Shermaya tha---. In ordinary parlance in the N.-W. F. P. These words mean "debagging a person" or ` having carnal intercourse with a man." During the trial Bahadur Khan P. W. 3 stated that Jameel appellant had beaten the brother of the wife of Muhammad Jameel appellant. This change was meaningful. Bahadur Khan P.
10. W. 3 had become wiser and wanted to eliminate the element of provocation given by the deceased to the accused. The learned Advocate-General agreed that the word ---Shermana--- means dishonouring a person by debagging him or having carnal intercourse with a man or robbing him of his gun etc. With the modification in the sentence of Muhammad Jameel alias Loli the appeal is dismissed.