Law:

Section:

Penal Code (XLV of 1860)--- -----Ss. 302/34 & 323-Common intention-Vicarious liability-Sec­tion 34, P. P. C. envisages some kind of preplanning although common intention to commit offence may sometimes develop even during progress of transaction-Appellant not shown to have had knowledge of his brother carrying knife in his dub and terms in F. I. R. unmis­takably indicating deceased and his two assailants having grappled with each other-Facts, held, created impression, as far as appellant concerned, of his intention being mainly to belabour deceased and not to kill him outright---Appellant in circumstances, held, not liable to conviction under S. 302/34 and his conviction altered to one under S.323. JUDGMENT MUHAMMAD GUL, J.-Yasin, appellant herein, and his brother Abdul Karim, were tried under section 302/34, P. P. C. for the murder of Ghulam Hassan, of whom, Abdul Karim was sentenced to death and the appellant herein, to transportation for life. On appeal and reference to the High Court, their convictions and sentence, were upheld and death sentence of Abdul Karim was confirmed. On their joint petition for leave, this Court, by order dated 9-10-1970 dismissed the petition vis-à-vis Abdul Karim, and his convic­tion and sentence is no more in question. Leave was, however, granted to the appellant herein, to consider whether on the facts of the case, he has been rightly held tit be vicariously liable under section 34, P. P. C. The incident took place a little before sunset on 31-3-1968, while Ghulam Hassan deceased, a resident of Chah Mithuwala, was proceeding through the fields of Basti Jamalwali two squares away, to fetch some wheat from Muhammad Din Muhajir. The appellant and his brother were residents of Chah Shaikhan at some distance from Chah Mithuwala. The case for the prosecution was that Abdul Karim had contracted illicit liaison with Mst. Zohra Mai, a sister of the deceased who had been married to one Nazir Ahmad, a cousin of the appellant some 6/7 years prior to the incident. To avoid further complications on the suggestion of the deceased, Mst. Zohra Mai was divorced by her husband 20/25 days prior to the incident and she started living with…

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