Law: Pakistan Penal Code, 1860

Section: 302,34

Penal Code (XLV of 1860)----Ss. 302 and 34-Several accused tried-Conviction under S. 302 read with S. 34 when all except one acquitted-Conviction whether maintainable-Criminal Procedure Code (V of 1898), S. 510-Duty of Chemical Examiner, explained. Appellant tried with four others under section 302 read with section 34. Two were acquitted by the Sessions Judge and remaining three were sentenced to transportation. On appeal two more were acquitted and the conviction of the appellant only under section 302 read with section 34 was maintained. The appellant was charged for having shared the common intention of the acquitted accused and partici­pating with them in commission of the offence. There was no charge against the appellant for having committed the murder himself. Blood was, however found on the `dhoti' of the appellant on his arrest. Held, (on appeal) if the co-accused are all acquitted the element of sharing common intention with them disappears and unless it can be proved that the appellant shared a common intention with the actual murderer or murderers lie cannot be convicted - with the aid of section 34, Of course he could have been charged in the alternative for having shared a common intention with another or others unknown. But even then the common intention would have to be proved either by direct evidence or by legitimate inference. It is impossible to reach such a conclusion on the evidence of this case once the co-accused are eliminated because the whole gravamen of the charge and of the evidence is that the appellant shared the common intention with those other four and not with others who are unknown. The mere presence of human blood on the 'dhoti' at one place, in the absence of other evidence does not constitute corroboration of prior preconcert or participation in the crime. The Chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. Merely to say that blood was detected on an exhibit is not enough and may well lead to miscarriage of justice compelling judges to acquit when they would have convicted had…

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