P L D 1993 Federal Shariat Court 44 (PLP)

"(i) It is reported from the Holy Prophet (p.b.u.h.) to have said that‑‑ ??????????? "Allah Almighty has exempted their followers from any penalty for what is in their hearts unless it is translated into action." (ii) It is also reported from the Holy Prophet (p.b.u.h.) to have said that‑‑ ?????? ? "The person who intends to do any virtuous act but does not perform it, a reward shall be written in his account and the person who intends to commit a crime but for some reason, does not act upon it in such circumstance, nothing shall be recorded against him."

5. Abu Zahra, a renowned jurist of Egypt in his Al‑Jarima wal Uquba fil Shari'ah Al‑Islamia ??????????????????????? page 350 writes that‑ ??????????????????????? "Mere intention is not subject to punishment (unless it is done practically".

6. On account of this principle mere intention not coupled with any preparation or attempt to translate the intention into action is not liable for any punishment. Thus even after having an intention to commit a crime followed by preparation to commit it if a crime is not committed for some reason the mere intention or preparation is not liable to punishment specified for the crime itself, unless the preparation by itself is a crime.

7. The petitioner also submitted that the actions (liable to reward) go with intentions. This phrase is, in fact, a part of a long Hadith. of the Holy Prophet (p.b.u.h.) narrated from him by Hazrat Umar. This hadith is narrated by Imam Bukhari in his Sahih as first Hadith under Kitab al‑Wahi and is also mentioned in Al ?Mishkat (al) as the first Hadith under Kitab al‑Iman. After the above part of the Hadith the Holy Prophet (p.b.u.h.) said ??????????????????????? i.e. a human being will get (in result) what he intends for. It was then stated by the Holy Prophet in the said Hadith that: ??????????????????????? "i.e. who migrates with the intention to seek pleasure of Allah and His Apostle, his migration from Makka to Madina will be for the sake of Allah and His Apostle and who migrates (from Makka to Madina) for worldly gain or marrying with certain woman, his migration will be relatable to that intention with which he migrated." Therefore, it can be inferred easily that if one performs a bad deed with good intention, the badness of that action will remain there, e.g. if a person steals another's property with the intention that he will help the poor with that stolen property, the mere intention will not render the theft as lawful. The theft will remain theft and he will be liable to punishment in accordance with law. No matter the intention of committing theft may be good.

8. In so far as the question of doing an act jointly in furtherance of common intention and its liability on each of them is concerned, it seems pertinent to refer to an incident occurred during the days of Umar, the second Caliph. It is narrated in Al‑Musannaf Abi Shaibah Vol. IX, page 347 that? "The husband of a woman of a city San'a disappeared by leaving her step‑son in the house. In his absence, the woman had illicit relations with a person and said to her friend that this child will nickname them by disclosing their relation and asked him to kill the child when he refused to do so she discontinued her illicit relation with him. Ultimately, the woman, her friend, her servant and another person jointly agreed to kill the child. After killing, they cut his body into pieces and then threw it into a well. When the incident came to the knowledge of the people the Governor of Yemen arrested the persons concerned. He and other culprits made confession before him. The Governor of Yemen brought the matter into the notice of Hazrat Umar. In reply, Hazrat Umar ordered him to kill all of them and said "By God, if all the inhabitants of San'a participated in committing this crime, I would have killed all of them."

9. The same incident has been stated in Al‑Mufiqat by Imam Shatibi. It reads as under:‑‑ "Harzat Umar executed five or seven persons in retaliation of a single, person, whom they had killed treacherously. Because Hazrat deemed it expedient for the protection and security of human lives. If several persons are not killed in retaliation of single person, then the crime of human massacre will not be completely eradicated by the law of retribution. Here wisdom may hesitate, because it does not seem to be a protection of human lives to kill several persons in retaliation of a single person. It was an Ijtihad of Hazrat Umar to have said "If all inhabitants of San'a participated jointly in committing this crime; I would have killed all of them." The object of this declaration was the protection of human lives and to deter others from committing the crime. However, Hazrat Umar was not sure about the correctness of his decision until he asked Hazrat Ali that "if you apprehended several persons in committing a crime of theft, would you order amputation of their hands? Hazrat Ali said, yes! "the same principle would be applied here." Then, Hazrat Umar ordered to kill all of them." (Al‑Mufiqat fi Asul al‑Shari'ah, Labi Ishaque Al‑Shatibi, Vol. III, page 11 Dar al‑Ma'rafat, Beirut, Lebanon).

10. There is another incident that Hazrat Ali had also ordered the execution of three persons in retaliation of killing a single person. It is thus so stated in Arbi as under:‑‑ ??????????????????????? Likewise, Hazrat Ali also executed, many persons in retaliation of one person. (This precedent is followed by the majority of Jurists and Companions of the Holy Prophet).

11. Imam Malik, in Mu'atta has also been quoted as saying that if a person catches hold of a person and another kills him and then it is found that he had caught hold of him for being killed, then both would be put to death: (Mu'atta: Imam Malik, Vo1.II, p.873 Kitabul Aqul‑Babul‑Qisas fil‑Qatl). Its version in Arabic reads as under:‑‑

12. Maulana Salamat Ali in his translation of Kitabul Ikhtiyar known as Islami Faujdari Qanun has also stated on the authority of Al‑Kafi that if a group of persons kills a person, then the entire group involved in the murder would be put to death ill qisas. (Article 560, p.194). The Arabic text is reproduced as under:‑‑

13. In Fiqh terminology, two words Tawafuq and Tamalu are very common to denote such a situation. There is, however, a bit difference between the Hanafis and rest of the Jurists in determining the meaning of Tamalu'. According to Jumhoor Tamalu' is like Tawafuq "to commit a crime jointly without having prior agreement or conspiracy, that is to say they just agree on the spot to commit a crime jointly without prior planning and agreement. While according to Maliki Jurists, Tamalu' means to commit a crime jointly by several persons in furtherance of common intention and prior agreement. According to them, each member of the group shall be liable to punishment specified for the commission of the crime regardless of their direct participation in the crime. Each of them would be considered as it was done individually.

14. In other words, according to Malikis, mere presence at the spot f occurrence of crime with an intention of such commission is sufficient to m e a person liable to punishment for such crime irrespective of the nature of his participation and assistance, According to however, all participants shall be punished with a punishment of Qisas in the case of murder and the person, who after agreement, merely assists at the place of occurrence he will, however, be awarded Ta'zir' punishment which may go to the extent of death punishment but only as Ta'zir, not as Oisas.

15. According to Shafi is and Humbalis, all will be liable to the same punishment provided they all intended to commit the said crime and participate in the commission of the crime, even if other person or persons engage themselves in some minor act like beating with a stick etc. However, the preferred opinion of the Jumhoor of the Fuqaha (multitude majority overwhelming of the Jurists) is that if several persons participated in killing a single person, all of them shall be liable to death punishment. Their opinion is, in fact, based on the decision of Hazrat Umar who had executed seven persons, in retaliation of killing a single person and is reported to have said that "if all inhabitants of San'a had participated in committing the, said crime, I would have killed all of them, as referred to above.

16. It is reported that there seems to be consensus of opinion among the Companions of the Holy Prophet (p.b.u.h.) that if several persons commit an act of aggression against a single person in furtherance of common intention, all of them would be liable to punishment. It is, however, stated in Al‑Muhalla (it) by Imam Ibn Hazam Zahiri that thes Companions of the Holy Prophet (p.b.u.h.) cannot be said to be unanimous as Ma'az bib Jabal, a prominent Companion of the Holy Prophet (p.b.u.h.) is reported to have not agreed on the issue of joint liability with Hazrat Umar and Hazrat Ali. This is so stated in Abu Zahra s book, page 402 (ibid).

17. However, the jurists are of the opinion that if the concept of joint liability is ignored, then "Mischief in the land" will spread on earth. The criminals will conspire to commit a crime jointly for the purpose of availing acquittal of some of the participants. Therefore, it is also in the interest of keeping peace and harmony in the society, if the acts committed with common intention be made punishable for all and each of them for committing such crime.

18. It appears that this Court in exercise of its suo motu jurisdiction under Article 203‑D(1) of the Constitution, had issued public notice dated 30‑8‑1987 in S.S.M. No. 41‑A of 1.987 to examine some of the provisions of the Pakistan Penal Code, 1860, including section 34, and had invited the opinions of lawyers, jurists and ulema etc. A public notice appeared in the National Dailies of Pakistan, both Urdu and English and the Court started examination of the said section 34 alongwith certain other provisions of the Pakistan Penal Code from 17th to 21st January, 1988 at Islamabad and the matter was heard on different dates at Karachi, Lahore and Quetta during 1989 and 1990, but there appears to be no judgment written or pronounced in the said S.S.M. No. 41‑A of 1987, with the result that section 34, P.P.C., now under consideration also remained undecided.

19. It may, however, be mentioned that in response to the earlier publication of public notice in the Dailies of Pakistan, a number of Scholars submitted their comments on the different provisions of law in a general form. However, Professor Fazle Hadi Qasmi of Peshawar, made his comments on certain sections of the Pakistan Penal Code as asked for. About section 34 his comments are reproduced as below:‑

20. Section 34, as reproduced (supra), only enacts a rule of co‑extensive culpability when offence is committed with common intention by more than one accused. Meeting of more than one mind in doing an act (intended or agreed) to an offence can be said to result in having common intention in doing it. That creates co‑extensive criminal liability under this section. The principle which is embodied in section 34, is participation in some act with the common intention of committing a crime. If one such 'participation among more than one person is established section 34 is attracted. The Hon'ble Supreme Court of Pakistan in Inam Bux v. The State (PLD 1983 SC 35) has thus held that: "Section 34 of the Penal Code, 1860 is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all. It does not create a distinct offence but merely enunciates a principle of joint liability for acts done in furtherance of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Common intention usually consists of some or all of the following acts; common motive, pre‑planned preparation and concert pursuant of such plan, common intention, however may develop even at the spur of the moment or during the commission of the offence. The principle enunciated is that if two or more persons intentionally do a thing jointly the position is just the same as if each of them had done it individually by himself."

21. To understand and appreciate the implications of section 34 it seems necessary to also refer to sections 35, 37 and 38, P.P.C. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. Section 35 in effect provides for a case where several persons join in an act which is not per se criminal, but is criminal only if it is done with a criminal knowledge or intention; in such a case each of those persons who joins in the act with that particular knowledge or intention will be liable for the whole act as if it were done by him alone with that knowledge or intention, and those who join in the act but have no such knowledge or intention will not be liable at all. Section 37, in effect, provides for a case where several persons cooperate in the commission of an offence by doing separate acts at different times or places, which acts, by reason of intervening intervals of time, may not be regarded as one act, or which may not be necessarily committed with a common intention. Section 38 provides that if several persons are engaged or concerned in the commission of a criminal act, having been set in motion by different intentions, they may be guilty of different offences by means of that act. This section which is the converse of section 34, provides for different punishments for different offences where several persons are co‑accused in the commission of a criminal act, whether such persons, are actuated by the one intention or the other. The basic principle which runs through all these, sections is that an entire act is to be attributed to a person who may have performed only a fractional part of it. Sections 35, 37 and 38 begin by accepting this proposition as axiomatic, and each of them then goes on to lay down a rule by which the criminal liability of the doer of a fractional part (who is to be taken as the doer of the entire act), is to be adjudged in different situations of mens rea. The axiom itself is laid down in section 34 is which emphasis is on the act. What has to be carefully noted is that in section 35 and in section 37 and in section 38 this axiom that the doer of the factional act is the doer of the entire act is taken up as the basis of a further rule. Without the axiom these sections would not work, for it is the foundation on which they all‑stand. Reference may be made to Sultan v. Emperor, (AIR 1931 Lah. 749 (750) and Ibra Akanda v. Emperor (AIR 1944 Cal. 339 (358): 45 PCr.LJ 771).

22. Mr. Iftikhar Hussain Chaudhary, learned counsel for the Federal Government submitted that the principle of collective responsibility is well? established in history. The Holy Qur'an mentions extinction of the tribes of `Ad and Thamud. These people had abandoned the worship of true god and lapsed into incorrigible idolatry. To `Ad, Hazrat Hud was sent but they did not believe him and the tribe was obliterated from the face of the earth by a hot and suffocating wind that blew for seven nights and eight days without permission and was accompanied by a terrible earthquake. The idolatrous tribe of Thamud was bestowed with the presence of Hazrat Salih but the unbelievers persisted in their incorrigible impiety and a violent storm overtook them and they were found prostrate on their breaths in their abodes. Thus, groups, tribes, people or nations were given punishment for their collective wrong‑doings and males, females and children were treated alike.

23. The above instances, as quoted by the learned Standing Counsel for the Federation, seem to be out of context as they relate to the law of creation/extinction whereas we are at the moment concerned with the legislation as to the law of crime and punishment.

24. It may thus be stated that an individual involved in a criminal act may not be sufficiently motivated to execute his criminal design but aided, abetted and encouraged by the presence and participation of others may provide him the sufficient tools to complete the offence. The culpability of all the accused in such cases is co‑extensive and embraces the principal actor and his accessories to the act. All the participants with common Intention deserve like treatment to I be meted out to them in law.

25. We are, therefore, of the considered view that the above section 34, P.P.C. does not offend any Injuction of Islam, laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).

26. The petition is, therefore, dismissed being without merit. M.B.A./823/FSC???????????????????????????????????????????????????????????????????????????????? Petition dismissed.