Names of accused/appellants are mentioned in inquest report as well as in unscaled site plan which were the primary documents prepared at the crime scene when police first visited in response to information of crime. It has been observed that even after joining the accused into process some of the documents also do not contain the name of accused against the word “Banam” which at the most could be regarded as slackness on the part of police; even otherwise Police Rules, 1934 does not specify a format of such memo for spot recoveries; therefore, it has no bearing or adverse impact on the consistent prosecution evidence which is strong enough on the ocular side.
In a state of panic it is not expected from a witness to state the roles of accused with such precision so as to expect a photographic narration.
In the arena of common intention different parameter are in vogue which are applied and depending upon the facts of each case, principle of vicarious liability changes its meaning to outline an appropriate sentencing regime. It has been thrashed in depth in this case to see its proper application corresponding to claim and evidence of the parties.
Substantive criminal law bears ‘Common intention syllogism’ since century or so which boiled out from the factual inquiry in different criminal cases for determination of vicarious liability of accused in commission of an offence for the purpose of sentencing. Legal literature inbox of common law jurisdiction is replete with judicial precedents commenting upon the true interpretation of this principle. The principle up and down goes materialized to cover the purpose that no offence should go unchecked and no offender should go unpunished and that too with proportionate sentence. Our Judicial system also experienced such kind of situations which were responded with philosophical attentions, scholarly discourse and, lo, the verdicts celebrated for many decades have created our own data base to rely on and apply in a particular case to catch the criminal liability rest on the communion of minds. Pakistan Penal Code, 1860 (PPC), the statute of general criminal law in Pakistan courageously explains the application of principle of common intention in different situations through Sections 34, 35, 36, 37 & 38 of PPC relevant to indicate the true spirit. Thorough search of judicial precedents reflects that these sections have been interpreted many a time to give it pleased meanings with different angles and connotation while keeping common intention apart from similar intention which is at variance and also differs to knowledge as well. An omnibus application for joint crime liability of all the accused in a venture irrespective of their roles is the very basis of section 34 of PPC whereas section 35, 36 & 37 with a subtle change diminishes or encompasses the joint liability with different tones though within the four wall of section 34 PPC whereas section 38 with a shift to the preceding sections ordains that if offenders concerned in criminal act commit different offences during an episode of crime, every person shall be liable for his sentence to the extent of his role.
Vicarious liability stands apart from sentencing liability; both have different regime under the law, though principle of sentencing liability, based on commission of certain offences conjointly, are part of Pakistan Penal Code, 1860 as reflected from sections 394 & 396 wherein all the offenders are liable for the same sentence, yet sections of PPC dealing with common intention or common object do not envisage any such sentencing liability except liability of commission of offence; therefore, sentences of different accused would be determined on the basis of evidence of sharing common intention and the role played by them during the occurrence. if the evidence of common intention is not available to show pre-concert or pre-arranged plan or if it is not made out from the evidence, then the principle of similar intention would come into play and offenders shall be liable for sentences according to the role played by them during a crime episode on the principle that every person has different reflexes in doing a criminal act and they sometimes are disassociated before the act is completed, or they retaliate differently compared to their co-accused sans knowledge to others, therefore, reflexes cannot be punished and the touch stone is material role played by them during the occurrence.
Crl. Appeal 547-18
ABDUL AZIZ VS
STATE ETC
Mr. Justice Muhammad Amjad Rafiq
08-09-2022
2022 LHC 6969
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