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Criminal Appeal No.9-P of 1973, decided on 18^th December 1973.

(On appeal from the judgment and order dated 14-10-1971, passed by the Peshawar High Court in Criminal Appeal No. 100 of 1971).

‑‑ S. 302/34 ‑ Common intention ‑ Deceased hit by only one bullet and bullet fired by another accused missing mark, hitting wooden almirah piercing through and embedded in adjacent wali Pieces of bullet recovered from Wall, held, fully corroborated ocular evidence regarding firing by both accused at deceased‑Both accused, in circumstances, shared common intention to kill notwithstanding bullet fired by one accused alone having bit deceased‑Other accused, held, armed with such common intention by his very presence.‑[Com mon intention].

S. 302/34 ‑ Sentence ‑ Mitigation ‑ No background of enmity between deceased and accused prior to occurrence ‑ Motive of offence Deceased having dishonored brother of wife of accused sentenced to death‑Words used in F.I.R Words in ordinary parlance in N.‑W. F. P. meaning "debagging a person" or "having carnal intercourse with a man"‑Deceased having called for incident resulting in loss of his life by resorting to such sordid act, offence, though amounting to minder, yet extreme penalty of death not appropriate‑‑Mitigating circumstance existing, sentence of death reduced to imprisonment for life.‑[Sentence].

Nazirullah Khan, Advocate Supreme Court instructed by Amirzada Khan.

Advocate‑on‑Record for Appellant.

Burhanud Din, Advocate‑General, N.‑W. F. P. instructed by Nur Ahmad Khan, Advocate‑on‑Record for the State.

Date of hearing : 18th December 1973.

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.

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.

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.

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.

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.

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.

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. 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.

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. 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.

In the context of this case the word no doubt meant debagging' or having carne: intercourse with the brother of the wife of Muhammad Jameel appellant. By resorting to this sordid act the deceased had called for the incident in which he lost his life. The offence committed by the appellants no doubt amounts to murder but in view of this mitigating circumstance, it does not appear appropriate to exact the extreme penalty of death from Muhammad Jameel alias Loli appellant. We accordingly alter his sentence to life imprisonment.

With the modification in the sentence of Muhammad Jameel alias Loli the appeal is dismissed.

Appeal dismissed but sentence reduced.

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