Law: Pakistan Penal Code (XLV of 1860)

Section: 34,302

(a) Penal Code (XLV of 1860)----   ----Ss. 34 & 302-Three persons convicted for murder-High Court acquitting two and modifying conviction of third under S. 302, read with S. 34 ----No evidence whatever of previous concert-Conviction under S. 302/34 set aside.   was tried alongwith L and P for having murdered S. by shooting him. The First Information Report and the testimony of the person who lodged the report with the police, showed the associates of Z to be L and P while the dying declaration of the deceased revealed them to be U and C and the shooting portion was ascribed to C only.   The Sessions Judge did not accept the genuineness of the dying declaration but preferred to base his conviction on the testimony of the eye-witnesses and convicted all the accused. The High Court, holding that the dying declaration should be accepted as true, acquitted L and P and modified the conviction of Z under section 302, into one under section 302 read with section 34 of the Penal Code, because it was doubtful that Z played the chief role. There was no evidence whatever that some unidentified and unknown persons, along with Z committed the offence nor was there any finding as to who caused the fatal injury to the deceased:   Held, that Z was not guilty of the offence. In order that section 44 may be applied in the case of this kind, the common intention of committing the crime must be attributed to more than one individual and if the offence is the result of a joint act of more than one person, then only each one of them can be found guilty under section 302 read with section 34 of the Penal Code. There was no acceptable evidence whatever of a previous concert, and it was not known who the other assailants were. In those circumstances and especially since the High Court had held that Z did not fire the fatal shot but only played the minor role, the conviction could not be upheld.   (b) Constitution of India-------   ----Art. 136 (Constitution of Pakistan, Art. 160)-Findings of fact by High Court-Supreme Court ordinarily does not interfere with.   In an appeal by special leave, ordinarily the Supreme Court is bound by the findings of…