P L D 1967 Lahore 952 (PLP)

SAJJAD AHMAD, J.‑In this order "the Act" means the West Pakistan Criminal Law (Amendment) Act of 1963 and the Schedule referred hereunder is the First Schedule appended to the same Act.

2. The question for decision of the Full Bench which has been generally raised in Writ Petitions Nos, 627 and 909 of 1965 and 220 of 1966 may, for greater clarity, be formulated as follows:‑ "Where several persons are accused of an offence or offences tinder any of the sections given in the Schedule and the Commissioner, under section 3 of the Act, refers the question of their guilt or innocence for trial by the Tribunal under the Act, what is the effect on the validity of the reference and the proceedings pursuant thereto, where, besides the mention of the scheduled offence or offences in the reference order, section 34 of the Pakistan Penal Code is added to the charge for purposes of the trial to cover the joint liability of all the accused persons in respect of the scheduled offence allegedly committed by them in furtherance of their common intention, although section 34 at the time of making the reference was not included in the Schedule." It may be noted here that section 34 of the Penal Code has now been included in the Schedule by the Amending Ordinance XV of 1966, which was promulgated on the 27th of April 1966.

2. Writ Petition No. 627 of 1965, mentioned above, has since been withdrawn.

3. In Writ Petition No. 909 of 1965, the accused petitioners, four in number, were convicted by the District Magistrate, Sargodha, on the finding of the Tribunal of their being guilty under section 302/34, P. P. C. and were sentenced to fourteen years' rigorous imprisonment each. The petitioners submitted a revision petition to the Commissioner, Sargodha Division and the matter was also before him for the confirmation of the sentences. One of the objections taken before the Commissioner was that the initial order of reference made by the Commissioner was without jurisdiction as he had, along with the offence of murder under section 302, P. P. C., also referred for trial, by the Tribunal, section 34 of the Penal Code which was not one of the offences included in the Schedule at the time of the reference. The learned Commissioner has overruled this objection. He has, however, remanded the case for a fresh inquiry because the findings of the Tribunal, according to him, were influenced by the readiness of certain persons to swear against the accused on the Holy Qur'an without their having been subjected to cross‑examination.

4. In Writ Petition No. 220 of 1966 the case was referred by the Commissioner for trial by the Tribunal under the Act for offences under sections 302/34, P. P. C. There were four accused persons out of whom Ahmad alone was found responsible for the offence of murder by the Tribunal. The District Magistrate did not accept that finding and directed a further inquiry by a new Tribunal. The latter found all the petitioners guilty upon which the District Magistrate sentenced them to seven years' rigorous imprisonment each. A revision petition to the Commissioner and a further revision to the Government were dismissed. One of the main objections to the order of reference and the conviction is that section 34 not being included in the Schedule to the Act at the time of the reference could not be competently tried by the Tribunal and the entire proceedings were thus vitiated.

5. The question, which is before the present Full Bench, was raised in precisely the same form in the case of Muhammad Umar and another v. The State (P L D 1966 Pesh. 203), which was decided by a Division Bench, of which one of us was a Member. In that case the reference order by the Commissioner, the award of the Tribunal and the conviction by the District Magistrate under section 302/34, P. P. C. had all taken place before the inclusion of section 34 in the Schedule. An earlier decision of another Division Bench of the Lahore Seat in Writ Petition No. 132 of 1965, Nazir Ahmad, etc. v. Home Secretary, Government of West Pakistan, decided on the 15th of April 1966, was quoted before their Lordships and the following extract from that decision is incorporated in their judgment:‑ "Even though section 34, P. P. C. does not create a substantive offence, yet it creates a criminal liability even in respect of those accused persons who may not have themselves inflicted the fatal blows but who were nevertheless acting in furtherance of the common intention of all. From the fact that the Legislature has included section 149, P. P. C. in the First Schedule to the Act, its intention is clear that punishment for constructive liability cannot be imposed by the Tribunal under the Act unless the relevant provisions creating that constructive liability are included in the First Schedule." An argument addressed on behalf of the State that the inclusion of section 34 in the Schedule since the 27th of April 1966, by the Amending Ordinance XV of 1966 was merely a change in the procedural law which should have a retrospective operation for all the pending cases, including those in which the convictions recorded by the District Magistrates have not yet been confirmed by the Commissioner was noted, but repelled on the ground that the Act and the procedure there under do not ipso facto apply to pending cases unless an order of reference is made by the Commissioner. In this respect, therefore, the Act was held to be different in scope and application from an ordinary procedural law which would automatically apply to all pending cases before the ordinary Courts. It was observed that the procedure and the changes in the procedure under the Act would relate only to the manner of the disposal of a case which has been validly referred to a Tribunal and not to the antecedent stage of the reference to the Tribunal itself. Finally, it was said that the reference was ab initio void as it related to a non- scheduled section of the Pakistan Penal Code. On the nature and character of section 34 as a non‑scheduled offence, it was observed:‑ "We have already expressed the view that according to us section 34, of the Pakistan Penal Code must be regarded in the nature of a substantive provision for the reason that it creates criminal liability, which would otherwise not be present if this provision of law were not applied. In these circumstances, it is clear to us that section 34, P. P. C. was not a Scheduled section at the time the reference was made in this case and subsequent proceedings taken thereon, with the result that the reference must be held to be one without jurisdiction and of no lawful authority."

6. During the hearing in the Full Bench, we have had the benefit of elaborate arguments and a closer study of the purport and scope of section 34 of the Penal Code and the effect of its exclusion or inclusion in the Schedule to the Act. Section 34 of the Penal Code appears in Chapter II headed as "General Explanations" which contains definitions and explanations of the terms and expressions used in the Code. Section 7 in the same Chapter lays down that every expression which is explained in any Part of this Code is used in every Part of this Code in conformity with the Explanation. It is beyond dispute that section 34 does not create any offence but merely lays down a principle of joint liability in the doing of a criminal act. It is not even a penal provision as it only enunciates the principle of criminal liability which is that "if a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable as if it were done by him alone". It is wrong even to consider that this section extends the criminal liability, as it is merely as explanatory section, laying down that if in the doing of an act, the common intention to do it is shared by more than one person, each one of them shall be responsible for that act as if it was his own individual act. The criminal liability of the persons who have a common intention in the commission of the offence by the actual perpetrator, is already there and section 34 merely states that in such circumstances the perpetrated act is to be construed as the act of each one of the several persons whose minds have combined in its actual perpetration, whatever their roles, active or passive,, in facilitating that crime. There is a large body of authority for tire proposition that even though section 34 is not mentioned in the charge at the trial, conviction for the substantive offence by invoking the application of that section is not illegal, because there is no legal necessity to specify section 34 in the charge. In Waryam Singh Arur Singh v. Emperor (A I R 1941 Lab. 214), it was held as follows:‑ "Conviction for an offence following the provisions of section 34 is not illegal merely because that section has not been mentioned in the charge, as there is no legal necessity to specify that section. Section 34 is really nothing more than explanatory and embodies in the Code the ordinary common sense principle that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually."

7. Section 3 of the Act permits the reference of a Scheduled offence for trial under the Act for the determination of the guilt or innocence of any person accused of that offence or of several persons so accused. As section 34 of the Penal Code does not create an offence, its reference or mention is merely an appendage in the reference order. In fact, in a case, on the circumstances on which, its principle is attracted, it is to be read into the substantive offence itself in relation to the guilt of several persons whose criminal liability is to be determined on that principle.

8. One argument which seems to have been advanced with considerable attraction was about the intention of the Legislature in excluding section 34 from the Schedule while including other cognate sections like sections 148 and 149 and also by now including it, as indicating that section 34 was considered to be a non‑scheduled offence by the Legislature as it was not included in the Schedule. The addition of sections 148 and 149 to the Schedule by the Had Amending Ordinance IX of 1964 and the inclusion of section 34 in the Schedule by Ordinance XV of 1966 appear to have been done either by way of abundant caution or in subservience to the judgments of this Court hitherto delivered on the effect of their inclusion or non‑inclusion in the Schedule. Obviously enough, the inclusion or exclusion of section 34 in the Schedule by the Legislature does not alter the real purport of the section which, as already stated above, neither creates an offence, nor amounts to one by its own force. As such, its reference by the Commissioner under section 3 of the Act, even if it was not included in the Schedule at the time of the reference, is hardly of any consequence on the efficacy of the reference, the trial, or the result thereof. The question is answered accordingly. The Writ Petitions Nos. 909 of 1965 and 220 of 1966 will be returned to the Divisions Benches for further action. MUHAMMAD AKRAM, J.‑I agree. ANWARUL HAQ, J.‑As in the previous two cases, namely, Muhammad Umar and others v. The State and Nazir Ahmad, etc. v. Home Secretary, Government of West Pakistan, the judgment of the Court was delivered by me, it seems appropriate that I should add a word of explanation on the present occasion. The opinion expressed in those cases has, I think, to be modified in view of the more elaborate arguments which were presented before the Full Bench with regard to the true nature and meaning of the principle embodied in section 34 of the Pakistan Penal Code. I have, therefore, no hesitation in agreeing with the judgment proposed to be delivered by my learned brother Sajjad Ahmad, J., in modification of the view adopted by me previously. A. H. Reference answered.