Summary: (a) Evidence Act (I of 1872)- -S. 30-Confession affecting co-accused but affecting the maker only impliedly-Inadmissible against co-accused. One of four robbers, arrested on the spot, named before his captors, two of his companions as having taken part in the robbery. Held, the statement that he had so named his companions was inadmissible under section 30, Evidence Act inasmuch as the person naming them, only impliedly "tarred himself with the same brush with which he had tarred the others". (b) Evidence Act (I of 1872)- -S. 106-Recovery of incriminating articles at instance of accused-Burden on accused to prove how he came by the knowledge of the place of concealment of such articles. When it is established that an accused person has given information about an incriminating article it is for him to explain how he came by the knowledge of the place where that article was. (c) Identification-Evidence as to-Not safe to rely on. The evidence of identification is not safe to rely on. (d) Evidence Act (I of 1872)- -S. 114, illus (a)-Possession of stolen property a few days after robbery-Accused convictea under S. 411 P. P. C, and not for robbery. (e) Pakistan Penal Code (XLV of 1860)- -S. 460-Murder committed after termination of offence of house-breaking Section inapplicable. The offence of murder having been committed after the offence of house-breaking terminated will not attract the provisions of section 460 P. P. C. The robbers, finding that the residents of the village intended to capture them, scaled the wall of the house in which they had committed robbery and jumped outside into the lane, carrying with them some clothes belonging to the owner of the house. When outside the house the robbers were surrounded by tire villagers in large numbers, at which one of the robbers who carried a firearm fired at the villagers, four of whom received injuries and one of those four died. Held, that section 460 P. P. C., was inapplicable. (f) Pakistan Penal Code (XLV of 1860), - S. 397-Does not create an offence but fixes a minimum punishment in certain cases of robbery or dacoity. Section 397 P. P. C. does not create an offence or prescribe its punishment but fixes the minimum punishment in certain cases of robbery and dacoity. The section is a kind of a proviso to sections 392, 394 and 395 P. P. C. (g) Pakistan Penal Code (XLV) of 1860), - Ss. 34 and 149 Distinction-Offence known to be likely to follow-Section 34 not necessarily applicable. Section 34 has application only if the act for which offenders other than the one who did it are sought to be made liable was done in furtherance of the common intention of the participants in the crime and not otherwise. The section has some resemblance to section 149 of the, Pakistan Penal Code as like that section it makes an offender vicariously liable for the acts of his companions but there the similarity between the two sections ends. Section 149 P. P. C. is applicable not only when an offence is committed in fur therance of the common object of the unlawful assembly but also if the offence committed was known to be a likely result of the object which the members of the unlawful assembly set out to achieve. If the act for which offenders other than its perpertrator are sought to be made liable was inevitable, Courts will draw the inference that the common intention of all the participants in the crime was to do that act unless it is proved by cogent evidence that it was not. Again, if all the offenders have acted in a manner which shows unmistakably that their common intention was to do what one or some of them achieved, section 34 of the Pakistan Penal Code will have clear application. One difference between sections 34 and 149 of the Pakistan Penal Code is that while the latter section may have application even if the offence committed by one or some of the offenders was such which though not the common object of the unlawful assembly should have been known to be a likely result of what the unlawful assembly set out to achieve; the former will be applicable only if the act that was done was the one which the offenders had formed the common intention to do. From the fact that murder and attempted murders were likely results in this case the application of section 34 P. P. C., did not necessarily follow. As the question as to what the common intention of a set of offenders was is one of fact in each case, decisions given in other cases can have no more than persuasive value. A companion of a robber might have an approbation and admiration for him if he had killed one of the villagers who were out to capture them, but that will not take the place of intention necessary for the application of section 34. Raja v. The Crown P L R 1954 Lah. 93: P L D 1954 Lah. 201 Sher Muhammad and another v. Emperor A I R 1927 Lah. 765, Barendra Kumar Ghosh v. Emperor A I R 1925 P C 1, Indar Singh Gurmukh Singh v. Emperor A I R 1933 Lah. 819, Bahar v. The Crown P L D 1954 F C 77 and Sana Ullah and others v. The Crown P L D 1954 Lah. 382 mentioned. Per C. M. Sharif, J. (contra). - When persons set out to commit robbery and one of them commits a murder with a lethal weapon, which he carries to the knowledge of others, I would, in the absence of evidence which proves to the contrary, be inclined to hold that the murder resulted because of a preconcerted plan between the robbers in spite of the fact that section 34 of the Pakistan Penal Code is more limited in its scope than section 149 of the Pakistan Penal Code. (h) Criminal Procedure Code (V of 1898), -Ss. 225 and 237-Charge and conviction under Ss. 302/34, 307/34 and 397 P. P. C-Conviction changed to one under S. 394 P. P. C. in appeal. The appellants were charged under section 397 and sections 302/34 and 307/34 P. P. C. and convicted. In appeal before the High Court, the appellants were found not guilty of offences under sections 307/34 and 302/34 P. P. C. They were found guilty of an offence under section 394 P. P. C. and sentenced. The omission to frame the proper charge under-section 394 P. P. C. was not considered an insurmountable obstacle in this case. As the third and the fourth heads of the charge dealt with the offence under sections 302/34 and 307/34 P. P. C., respectively, it could hardly be doubted that the accused persons knew that they were being tried for robbery during the course of which hurt had been caused and, by reason of sections 225 and 237 of the Code of Criminal Procedure, the appellants could even in appeal be convicted under section 394 of the Pakistan Penal Code. Mushtaq Hussain for the Advocate-General for Respondent.

Summary: Penal Code (XLV of 1860), S. 460-Prescribes punishment for lurking house-trespass or house-breaking by night in the course of which murder or grievous hurt is committed and not for the latter offences for which the offender shall be punishable under S. 302 or 325 also-Confederate of the lurking house-trepasser or house-breaker who commits additional offence under S. 460 not in fact committing house-trespass or house-breaking is not punishable under S. 460. The punishment prescribed by section, 460 P. P. C. is for the house-breaking or the lurking house-trespass in the course of which murder or grievous hurt is committed or attempted and not for the additional offence committed. If the offence of murder is committed in the circumstances envisaged by this section the offender who is guilty of that offence will be punishable under section 302 of the Pakistan Penal Code also and his confederates may also be punishable for the offence of murder if it is established that any of the sections of the Penal Code which make persons vicariously liable for an offence (sections 34, 149 or sections dealing with abetment of offences) was applicable The person sought to be made liable under this section must be proved to have been jointly concerned in committing the house-trespass by night or house-breaking by night" i.e., he must have committed the offence of lurking house trespass by night or house-breaking by night and not be merely liable for that offence on account of vicarious liability for acts done by another. If a confederate of the lurking house-trespasser or housebreaker by night, who commits the additional offence mentioned in section 460 of the Pakistan Penal Code, had not in fact committed the offence of lurking house-trespass or house-breaking by night he will not be punishable under section 460 of the Pakistan Penal Code though he may be liable under section 456 or 457 of that Code by the application of section 34 or 149 or any of the sections dealing with punishments for abetments. The evidence in the present case showed that the appellant stood outside the house in order to receive the goods which his companions passed on to him and that he himself did not enter the house. The appellant was not jointly concerned in the house-breaking by night which his confederates committed and section 460 of the Pakistan Penal Code will have no application to his case. Appellant:-Through Jail. M. Z. Kitchlew, for the Advocate-General, for Respondent.

Summary: (a) Criminal Procedure Code, 1898 ---- Ss. 35, 382-B, 397, 401; Penal Code (XLV of 1860) ---- Ss. 302/34, 460; Pakistan Prisons Rules, 1978 ---- Rr. 40, 140, 199, 204, 205, 217, 218 Undertrial detention benefit in case of consecutive life sentences --- Petitioner, convicted on four counts (three under S.302/34 and one under S.460 PPC), sentenced to life imprisonment on each count to run consecutively --- Petitioner claimed that his undertrial detention period of 1 year, 7 months, and 24 days should be deducted four times (once per life sentence) under S. 382-B Cr.P.C. --- Held, S. 382-B Cr.P.C., though a beneficial provision, refers to “an offence” and its applicability to multiple consecutive sentences must be judicially interpreted --- Cumulative sentence of 100 years, though passed on multiple counts, is to be treated as a single sentence for purpose of release calculation under Rule 40 of Prisons Rules and S. 35(3) Cr.P.C. --- Accordingly, benefit of undertrial detention is to be counted once only --- No illegality in administrative or jail authority’s calculation --- However, the Prison Department is authorized to refer petitioner’s case to the Government for remission under Rr. 140(iii), 199, and 217 of the Prisons Rules and S. 401 Cr.P.C., subject to conditions including consent of legal heirs of deceased victims. (b) Criminal Law --- Remission of sentence --- Scope and entitlement under Prisons Rules and Cr.P.C. Petitioner earned remissions totaling 59 years on a 100-year cumulative sentence --- Held, remissions (ordinary and special) cannot reduce a life sentence below 15 years under Rr. 140 and 217 of the Pakistan Prisons Rules, 1978 --- Remissions awarded on all four counts cumulatively by jail authorities not supported by record or material justification --- Inspector General of Prisons directed to ensure strict compliance with remission rules and maintain clarity in application of Rule 217 cap on one-third remission unless special orders are obtained from Government. (c) Penal Code (XLV of 1860) ---- S. 302/34, 460; Criminal Procedure Code, 1898 ---- S. 397 Consecutive life sentences and calculation of start of imprisonment --- Supreme Court while converting death penalty to life imprisonment on three counts under S.302/34 directed sentences to run consecutively, not concurrently --- Petitioner was already serving life imprisonment under S.460 PPC --- Held, under S. 397 Cr.P.C., a subsequent sentence begins only after expiration of the previous unless the court directs otherwise --- No such direction by Supreme Court; hence, sentences to run back-to-back --- Total sentence of petitioner extended to 100 years. (d) Interpretation of statutes ---- Beneficial interpretation and use of singular/plural forms --- Ss. 4 & 9, Cr.P.C.; Interpretation of Section 382-B Cr.P.C. Argument that S. 382-B Cr.P.C. should be applied multiple times due to plural interpretation of “offence” rejected --- Held, although definitions in Ss. 4 & 9 Cr.P.C. allow singular to include plural, this cannot override express statutory structure where consecutive sentences are treated as one for release computation --- Judicial determination upheld that undertrial period must be deducted only once in cumulative life sentence cases. (e) Constitutional Petition ---- Mandamus --- Interference in administrative calculation of sentence Petitioner filed constitutional petition under Article 199 of the Constitution for direction to count undertrial detention four times --- Held, no violation of law or miscarriage of justice found --- Sentence computation by jail authorities found consistent with law and rules --- Petition dismissed. Disposition: Constitutional petition dismissed. Cited Cases: Javid Shaikh v. The State (1985 SCMR 153) Jumma Khan v. The State (1986 SCMR 1573) Bashir and others v. The State (PLD 1991 SC 1145) Qadir and another v. The State (PLD 1991 SC 1065) Shah Hussain v. The State (PLD 2009 SC 460) Asfaq Ahmad v. The State (2017 SCMR 307) Muhammad Zahir alias Tiko v. The State (2011 SCMR 38) Ghulam Murtaza v. The State (PLD 1998 SC 152) Sajjad Ikram v. Sikandar Hayat (2016 SCMR 467) Others referenced in para 7 of judgment. ------ "Detention period during trial shall be counted once in case of consecutive sentence."