2022 SCMR 1187
Multiple assailants --- Common intention or common object --- Guidelines / directions issued by the Supreme Court regarding the steps to be taken by the Trial Court in ascertaining the aspect of common intention or common object during the trial stated .
Supreme Court issued the following guidelines / directions regarding the steps to be taken by the Trial Court in ascertaining the aspect of common intention or common object during the trial :
i ) The Trial Court seized with the criminal trial is squarely required to adhere to the provision of sections 265 - C and 265 - D , Cr.P.C for the purpose of initiation of trial , before framing of charge as ordained to meet the spirit of the law ;
( ii ) The Trial Court is under obligation to fulfill the requirement as stated above , and thereafter to frame charge , while minutely looking into the contents of the crime report , statement of the prosecution witnesses under section 161 , Cr.P.C. , report under section 173 , Cr.P.C. and all other documents appended with the challan with an intent to evaluate whether the criminal act as disclosed has been committed in furtherance of joining hands , which attracts the ingredients of common intention ( section 34 , P.P.C. ) or common object ( sections 148/149 , P.P.C. read with the substantive offence ) , if so , the charge would be framed accordingly
( iii ) The Trial Court after recording of evidence , statement of the accused under section 342 , Cr.P.C. would provide an opportunity to the accused to lead defence , if any , and further to appear under section 340 ( 2 ) , Cr.P.C. ( if he intends to appear ) and defence evidence , if any , thereafter , it is obligatory for the courts to give judgment with definite finding qua the element of common intention or common object with reference to the substantive offence ; and
( iv ) The Court proceeding with the matter , if reaches to the conclusion that the offence committed is an individual liability then the provision of section 302 ( c ) , P.P.C. would be squarely applicable and each accused would be dealt with according to the gravity of allegation , if any . The Trial Court while rendering such finding has to disclose judicial reasoning .
Multiple assailants --- Common intention or common object --- Individual liability --- Finding of Trial Court that the offence committed was not in furtherance of common intention or common object , but prosecution otherwise proving its case against accused persons --- In such circumstances , the Court was under legal obligation to record conviction and sentence according to the role of every assailant constituting a criminal act according to over act ascribed to him .
Common intention or common object- ---
Any judgment which concludes the commission of offence falling under section 302 ( b ) , P.P.C. in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject .
Qatl - i - amd -- Multiple assailants --- Common intention or common object - Duty of court to ascertain the aspect of common intention or common object at the time of framing of charge and conclusion of trial stated .
A single assailant can commit the offence under section 302 ( b ) , P.P.C. but if the number of assailants is more than one and the offence is committed in furtherance of common intention then the provision of section 34 , P.P.C. would certainly attract . Similar to that if the tally of the accused is five or more and the offence is committed in furtherance of common object then the provision of sections 148/149 , P.P.C. would be applicable . The Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of section 34 , P.P.C. ( common intention ) or sections 148/149 , P.P.C. ( common object ) . These two legal aspects are to be addressed with the application of the provisions of section 302 ( b ) , P.P.C. depending upon the number of assailants . It is bounden duty of the courts to ascertain the aspect of common intention or common object primarily at the time of framing of the charge on the basis of contents of FIR , statements under sections 161 and 164 , Cr.P.C. , if any , final report under section 173 , Cr.P.C. and other attending documents collected by the Investigating Officer during investigation . The Trial Court is equally responsible to give a definite finding qua the applicability of section 34 , P.P.C. or sections 148/149 , P.P.C. at the time of conclusion of the trial while handing down the judgment .
Qall - l - amd committed due to provocation --- Meaning , scope and essentials elements of provocation stated .
In ordinary speech , the meaning of ' provocation ' is said to be t incitement to anger or irritation . It is a word used to denote much more than ordinary anger . To extenuate the killing of a human being provocation has always needed to be of a special significance . It is something which incites immediate anger or " passion , which overcomes a person's self - control to such an extent as to overpower or swamp his reason . In other words provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable person to lose self - control .
There are mainly four elements which need to be established to avail the defence of provocation i.e.
( i ) the provoking circumstances ,
( ii ) the accused's loss of self - control resulting from the provoking circumstances , whether reasonable or not ;
( iii ) whether the provocation could have caused an ordinary person to lose self - control , and
( iv ) the retaliation was proportionate to the provocation .
Whether the accused's loss of self - control was a result of the provoking circumstances is a subjective test . To prove the element of provocation , there are two more conditions i.e. it should be prompt , and retaliation is without inordinate delay . Apart from the circumstances narrated above inviting application of section 302 ( c ) , P.P.C. another situation has now erupted in our society having direct nexus with such like situations , i.e. a deliberate and malicious act intended to outrage religious feelings of any class of people by insulting its religion or religious rituals by use of derogatory remarks , which further extends the scope of cases falling under the ambit of sudden provocation .
Scope of section 302 ( c ) , P.P.C. stated .
Provision of section 302 ( c ) , P.P.C. is somewhat similar to the erstwhile section 304 , P.P.C. The provision of Section 302 ( c ) in the original text was an exception of section 302 , P.P.C. while following the requirements of erstwhile section 304 , P.P.C. This provision covers all those offences which are committed resulting into culpable homicide not amounting to murder and as such cannot be equated with the requirements for application of sentences as provided under section 302 ( a ) or 302 ( b ) , P.P.C. Any occurrence though resulting into an act of homicide but it was committed without element of mens rea , pre meditation or ill design , would squarely attract the provision of section 302 ( c ) , P.P.C. The framers of the law while inserting the said provision provided sentence of imprisonment which may extend to 25 years . The sentence of 25 years is clothed with discretionary powers of the court contrary to sentences provided under sections 302 ( a ) and 302 ( b ) , P.P.C. Broadly speaking this distinction qua the discretionary power to inflict sentence is based upon the fact that the law makers were conscious of the situations like free fight , case of two versions , undisclosed story , sudden affair , question of ghairat , absence of mens rea , self defence and cases initiated due to the element of sudden provocation .
Provisions of section ( c ) , P.P.C. can also be equated / adjudged keeping in view the state of mind of the offender , his surrounding circumstances and the mode of commission of the offence . If those are adjudged conjointly , it would certainly imprint a better picture before the court of law to adjudicate the matter , which might commensurate with the allegation .
Ss . 299 ( 1 ) & 302 ( b ) --- Qall - i - amd -
Tazir --- Meaning and scope Literal meaning of word ' tazir ' is chastisement - Word ' tazir ' means punishment inflicted by the Court other than ' qisas --- As the punishment of ' tazir ' is not prescribed by the Holy Quran or Sunnah , therefore , it cannot be as stern and stringent as that of qisas ; it includes punishment of imprisonment , forfeiture of property and fine --- Discretion has been left with the court assigned with the matter to decide and inflict either of the punishments commensurating with the as surfaced according to facts and circumstances of the overt act case --- Court of competent jurisdiction is fully justified to award sentence subject to assigning justiciable reasons to meet the ends of justice .
302 (a) 302 ( b ) & 304 PPC--- Qanun - e - Shahadat Art . 17 --- Qall - i - amd --- Scope of section 302 ( b ) , P.P.C. stated .
There are two sentences provided under the head of section 302 ( b ) , P.P.C i.e. death or imprisonment life as Tazir . There is marked distinction between sections 302 ( a ) and 302 ( b ) , P.P.C qua consideration and application of sentence which is also based upon other considerations . The parameters are entirely on different benchmark wherein strict compliance of section 304 , P.P.C. or applicability of Article 17 of the Qanun - e - Shahadat , 1984 is not required . Likewise , the mode and manner of ascertaining the guilt and execution of the sentence is altogether different . The intention behind this was in - fact to meet the requirements of law and order situation prevailing in the society with an intent not to let any crime unattended / un - addressed and further not to let any criminal escape from the clutches of law .
Penal Code ( XLV of 1860 ) ---
Ss. 302 ( a ) & 304 --- Qall - i - amd liable to qisas - Witness , credibility of - Tazkiya - tul - shahoodModes to ascertain the credibility of a witness on the touchstone of tazkiya - tul - shahood explained .
The primary / foremost qualification for a person to appear as a truthful witness in a case falling under ' qisas ' is that he must fulfill the condition of tazkiya - tul - shahood . In ordinary meanings , it is an accepted rule of tazkiya - tul - shahood , that the credibility of the witness shall be examined through credible person of the same walk of life to which the witness belongs . Tazkiya - tul - shahood also entails an open and confidential inquiry regarding the conduct of the witness to ascertain whether the witness is credible or otherwise . The word ' from the same walk of life ' is most essential attribute regarding this aspect . However , there are two modes provided to evaluate tazkiya - tul - shahood , ( i ) open , ( ii ) confidential . To ascertain the credibility of a witness on the touchstone of tazkiya - tul - shahood , the Judge is under an obligation to inquire the credentials of the witness proposed to testify during the court proceedings to adjudge his truthfulness . Likewise , he can also adopt the way of secret inquiry to further satisfy his conscience about the credibility of the witness , for which he can delegate / appoint someone else to ascertain the truthfulness of the person claiming acquaintance with the facts and circumstances of the case . There is no constraint that with the changing situation in the advanced era , the modern devices / technical assistance can also be utilized to gauge the piousness of the witness to arrive at a conclusion which endorses the believability qua the character of the witness by the Presiding Officer .
Public confidence in judicial process --- Courts of law can gain the confidence by imparting fair , equitable and justiciable dispensation of justice eliminating any possibility of discrimination on the basis of gender , race , religion , colour , caste , creed , status and language etc .Judges have to discharge such arduous task with utmost care and caution so that public confidence in judicial process is not shattered .
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