2022 S C M R 1187

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Sayyed
Mazahar Ali Akbar Naqvi, JJ
BASHIR AHMED and others---Petitioners/Applicants
Versus
The STATE and another---Respondents
Criminal Petitions Nos. 1371 and 1651-L of 2016 and Criminal Miscellaneous
Application No. 1704 of 2017, decided on 26th November, 2020.
(On appeal against the judgment dated 08.11.2016 passed by the Lahore High
Court, Bahawalpur Bench in Criminal Appeals Nos. 470 and 471 of 2013 and
Murder Reference No. 51 of 2013)
Per Sayyed Mazahar Ali Akbar Naqvi, J.; Umar Ata Bandial, J agreeing; Mazhar
Alam Khan Miankhel, J. dissenting.
(a) Penal Code (XLV of 1860)---
----Ss. 302(a) & 304---Qatl-i-amd liable to qisas---Witness, credibility of---
Tazkiya-tul-shahood---Modes 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.
(b) Penal Code (XLV of 1860)---
----Ss. 302(a), 302(b) & 304---Qanun-e-Shahadat (10 of 1984), Art. 17---Qatl-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 for life as Tazir. There is marked distinction between section
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.
(c) Penal Code (XLV of 1860)---
----Ss. 299(l) & 302(b)---Qatl-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 overt act as surfaced according
to facts and circumstances of the case---Court of competent jurisdiction is fully
justified to award sentence subject to assigning justiciable reasons to meet the ends
of justice.
(d) Penal Code (XLV of 1860)---
----S. 302(c)---Qatl-i-amd---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 section 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 302(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.
(e) Penal Code (XLV of 1860)---
----S. 302(c)---Qatl-i-amd committed due to provocation---Meaning, scope and
essentials elements of provocation stated.
In ordinary speech, the meaning of 'provocation' is said to be 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.
Lee Chun Chuen v. The Queen 1963 1 All ER 73 ref.
(f) Penal Code (XLV of 1860)---
----Ss. 34, 148, 149 & 302(b)---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.
(g) Penal Code (XLV of 1860)---
----Ss. 34, 148, 149 & 302(b)---Qatl-i-amd --- Multiple assailants --- 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
(h) Penal Code (XLV of 1860)---
----Ss. 34, 148, 149 & 302(c)---Qatl-i-amd---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 is under legal obligation to record conviction and sentence
according to the role of every assailant constituting a criminal act according to
overt act ascribed to him.
(i) Administration of justice---
----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.
(j) Penal Code (XLV of 1860)---
----Ss. 34, 148, 149 & 302(c)---Criminal Procedure Code (V of 1898), Ss. 265C,
265D, 340(2), & 342---Constitution of Pakistan, Arts, 189, 190 & 203---Qatl-i-
amd---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.
Per Sayyed Mazahar Ali Akbar Naqvi, J. (Majority view):
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.
[Per Mazhar Alam Khan Miankhel, J. (Minority view):
Issuance of directions to the subordinate Courts to follow a particular course of
action in criminal matters is not the domain of the Supreme Court as this would be
considered by the courts below to be binding as per the provisions of Article 189 of
the Constitution. Every Judge is independent and autonomous within his/her
allocated sphere of jurisdiction and such direction would amount to interference in
their independence which is not permissible under the law. The Appellate Court
indeed can uphold, modify or set aside the judgment of the lower fora but such
guidelines/directions cannot be held as an "act in aid" of the Supreme Court as
contemplated in Article 190 of the Constitution. Such guidelines/directions being
supervisory in nature would also amount to an encroachment upon the supervisory
powers of the High Court vesting in it under Article 203 of the Constitution.
(k) Penal Code (XLV of 1860)---
----Ss. 34, 148, 149, 302(b), 302(c), 324, 337-F(vi) & 337-L(2)---Criminal
Procedure Code (V of 1898), Ss. 265C, 265D, 340(2), & 342 --Qatl-i-amd---
Reappraisal of evidence---Multiple assailants---Common intention or common
object---Trial Court failing to give finding on whether the murderous assault was
committed in furtherance of common intention---Effect---Remand of case to Trial
Court---In the present case, the accused was convicted under section 302(b), P.P.C.
and sentenced to death by the Trial Court, which was altered into imprisonment for
life by the High Court---One of the co-accused ('the convicted co-accused') was
convicted under sections 337-F(vi) & 337-L(2), P.P.C. for causing injuries to two
persons, whereas the three co-accused persons ('the acquitted co-accused persons')
were acquitted by the Trial Court, and their acquittal was not challenged---Keeping
in view the sentence inflicted to accused under section 302(b), P.P.C. and sentence
inflicted to convicted co-accused under section 337-F(vi) and 337-L(2), P.P.C.,
question was if the Courts below ignored the aspect whether act of both accused
and convicted co-accused was committed in furtherance of their common intention,
especially when there was no finding to such effect; whether in absence of such
finding, the conviction and sentence recorded by the courts below was justified in
law; whether when accused was convicted under section 302(b), P.P.C. and
convicted co-accused according to his individual role, both their sentences were in
consonance with the spirit of sections 302, 324 and 34, P.P.C. (common intention)
or (with five or more accused) under sections 302, 148 & 149, P.P.C. (common
object)---[Per Sayyed Mazahar Ali Akbar Naqvi, J. (Majority view): 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 and 149, P.P.C. (common object)---Said legal aspects are to be addressed with
the application of the provision of section 302(b), P.P.C. depending upon the
number of assailants---Courts below are bound to ascertain the aspect of common
intention or common object primarily at the time framing of the charge on the basis
of contents of FIR, statements under sections 161 & 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---Trial Court is equally responsible to
give a definite finding qua the applicability of section 34, P.P.C. or sections 148 and
149, P.P.C. at the time of conclusion of the trial while handing down the judgment--
-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---Petitions for leave to appeal were converted into
appeals and allowed, impugned judgments of High Court and Trial Court were set-
aside and matter was remanded to the Trial Court for the limited purpose of re-
writing the judgment within two months on the basis of existing judicial record in
accordance with law and the guidelines given in the present judgment---[Per
Mazhar Alam Khan Miankhel, J. (Minority view): Role of both the accused and
convicted co-accused qua the murder and the injuries to the witnesses was quite
independent---Remand of the case of accused and convicted co-accused itself
would be against the norms of justice when three co-accused had been acquitted,
specifically the co-accused with the similar role of firing on witnesses as attributed
to the convicted co-accused---Material and evidence available before the Court
showed that the provisions of section 34, P.P.C. were not attracted in the present
case---In both of the episodes of the occurrence, it appeared to be the individual
acts of each accused which took place at the spur of the moment---Causing of
injuries to the witnesses and the murder of deceased took place in two separate and
independent episodes---In the first episode of the occurrence, the accused and
acquitted co-accused did not commit any criminal act with their common intention
and they did not cause any injury to witnesses, who, being empty handed, were at
their mercy---No overt act falling in the definition of a criminal act was even
attributed to them in the FIR---Similarly, during the second episode a single fire
shot had been attributed to the accused on the deceased, whereas the convicted co-
accused and an acquitted co-accused fired at complainant and a witness, who
miraculously escaped but such a story can hardly be believed because if they
possessed the common intention to commit the murder of the witnesses, who were
at their mercy and reportedly empty handed, they could have easily achieved the
same---Role of firing (criminal act) during the second episode though was
attributed to an acquitted co-accused and the convicted co-accused but the trial
Court not only acquitted both of them of the charge under section 302(b), P.P.C. but
also held that there was no evidence of common intention---Such finding of trial
Court had also attained finality, hence, there was no legal or moral justification for
remand of the case of one of them (i.e. the convicted co-accused) on a matter which
had already been decided and attained finality---Sending back the case of the
accused and convicted co-accused to the Trial Court after about ten years would be
nothing short of increasing their agonies and anguish, and would also be against
substantial justice].
Per Mazhar Alam Khan Miankhel, J. dissenting (Minority view)
(l) Penal Code (XLV of 1860)---
----S. 34---Common intention---Scope---Alleged criminal act should be in
furtherance of common intention and not the common intention simpliciter---Mere
presence of an accused with another accused who commits the crime would not
constitute his common intention unless there is an evidence referring to the
criminal act of that accused committed in furtherance of common intention with the
other accused. [Minority view]
Syed Asim Ali Bukhari, Advocate Supreme Court for Petitioner (in Cr. P.
1371/2016 and Cr. M.A. 1704/2017).
Ch. Ghulam Murtaza Khan, Advocate Supreme Court for Petitioner (in Cr. P. 1651-
L of 2016).
Mirza Abid Majeed, DPG, Punjab for the State.
Date of hearing: 26th November, 2020.
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated
judgment, we intend to decide Cr. Petition No. 1371/16 filed by the
petitioners/convicts against their conviction, Cr. Misc. Application No. 1704/17 for
suspension of sentence and Cr. Petition No. 1651-L/16 filed by the complainant for
enhancement of sentence awarded to the petitioner Munir Ahmed.
2. Munir Ahmad and Bashir alias Shada along with three others were tried in the
case registered vide FIR No. 143/2011 dated 05.08.2011 under sections 302, 324,
337-F(vi), 337-L(2), 34/149, P.P.C. at Police Station Marot, District Bahawalnagar
for committing murder of Muhammad Ishaq, brother of the complainant, and for
causing injuries to complainant Muhammad Ilyas (PW-4) and Muhammad Shahid
(PW-5).
 3. Brief facts as disclosed in the FIR are that the complainant was owner of land
measuring 35 acres, which was under his cultivation. At the night preceding the
occurrence, it was turn of the complainant to avail waters for his lands. At about
8.00 a.m, the level of the water decreased upon which the complainant along with
Muhammad Shahid visited their watercourse and found that close to the lands
belonging to Abdul Majeed Kamboh, a cut was made and the water was being
stolen by the accused Munir, Naseer, Bashir alias Shada, Asif and Rashid and the
same was breached for their own lands. When they were estopped to commit water
theft, it infuriated the accused persons namely Bashir alias Shada who inflicted
injuries on the person of the complainant and Muhammad Shahid with handle of
the hatchet and did not allow them to have access to the watercourse. On the same
day at 11.30 a.m. another attempt was made by the complainant party to have
access to the watercourse. Soon they reached near the lands of Abdul Majeed
Kamboh, the deceased Muhammad Ishaq tried to repair the breach to continue with
their share of water. Meanwhile in their presence, Bashir alias Shada raised lalkara
to Munir accused to fire at Ishaq, upon which said Munir made straight fire with his
rifle at Muhammad Ishaq, which hit on the right side of his neck. Due to the
infliction of injury, he fell down. Thereafter co-accused Naseer and Bashir alias
Shada made straight fires at the complainant and Shahid but they saved their lives
by lying on the ground. The injured was being taken to hospital, however, Ishaq
succumbed to the injuries on his way.
4. During the course of investigation carried out by the local police, the
petitioners along with three others were found involved and as such their names
were placed in coloumn No. 3 of the report submitted under section 173, Cr.P.C.,
which was submitted to the Illaqa Magistrate and the same was en-routed to the
learned Sessions Judge under section 190(2), Cr.P.C. The learned Trial Court after
taking cognizance of the offences framed charge vide order dated 03.02.2012. After
completion of the trial, the learned Trial Court vide judgment dated 30.11.2013
convicted Munir Ahmed under section 302(b), P.P.C. and he was sentenced to
death. He was also directed to pay Rs.300,000/- as compensation to the legal heirs
of deceased Muhammad Ishaq as required under section 544-A, Cr.P.C. In case of
default, it had to be realized as arrears of land revenue or in case of non-realization
of said amount, he was to further undergo six months' SI. Bashir alias Shada was
convicted by the Trial Court under section 337-F(vi), P.P.C. for causing injury on
left hand of complainant, and was held liable to pay Rs.30,000/- as Daman to the
victim Muhammad Ilyas (complainant). He was also convicted under section 337-
L(2) for causing injury on the back side of chest of the complainant Muhammad
Ilyas and was held liable to pay Rs. 10,000/- as Daman to him. He was also
convicted under section 337-L(2), P.P.C. for causing injury on left forearm of
Shahid and was held liable to pay Rs. 10,000/- as Daman to him. Petitioner Bashir
was directed to pay Daman to the victim or in case of failure, he was directed to be
kept in jail and dealt within the same manners as if sentenced to simple
imprisonment until amount of Daman was paid. However, the learned Trial Court
acquitted the co-accused namely (i) Naseer Ahmed, (ii) Rashid and (iii) Muhammad
Asif of the charge while extending them benefit of doubt.
 5. Criminal Appeal Nos. 470, 471/13 were preferred by the appellants before the
Lahore High Court (Bahawalpur Bench), calling in question the judgment of the
learned Trial Court dated 30.11.2013. The learned Trial Court sent Murder
Reference under section 374, Cr.P.C. to High Court. Both Cr. Appeals and Murder
Reference No. 51/13 were heard by a Division Bench of the High Court and vide
judgment dated 08.11.2016, conviction recorded against both the appellants Munir
Ahmed and Bashir Ahmed alias Shada was ordered to be upheld with alteration of
sentence of death awarded to Munir Ahmed into imprisonment for life. Both the
appellants were extended benefit of section 382-B, Cr.P.C.
6. Criminal Petition No. 1371/16 was filed before this Court challenging the
legality of the judgments passed by the courts below dated 30.11.2013 and
08.11.2016 mainly on the ground that conviction and sentence recorded by both the
courts is not sustainable in the eyes of law. During the course of proceedings before
this Court, a query was made to the learned counsel for the petitioners qua the
legality of sentence and conviction recorded by the Trial Court, which was
maintained by the High Court, keeping in view the sentence inflicted to Munir
Ahmed under section 302(b), P.P.C. and sentence inflicted to ashir alias Shada
under sections 337-F(vi), 337-L(2) and 337-L(3),?????????????????? P.P.C. while
ignoring this aspect of the case that the act of both petitioners was committed in
furtherance of their common intention, especially when there was no such finding,
which could be made basis that the element of common intention or common object
was not established. The question whether in absence of any such finding, the
aforesaid conviction and sentence recorded by the courts below was justified in
law, (ii) whether when Munir is convicted under section 302(b), P.P.C. whereas
Bashir alias Shada is convicted according to his individual role, both the sentences
in all eventuality are in consonance with the spirit of sections 302/324/34, P.P.C.
(common intention) or if the number of accused are five or more under sections
302/148/149, P.P.C. (common object), hence these were the moot points for
consideration in this case. Learned counsel appearing for the parties have not
controverted the query made by the Court and categorically stated that both the
learned courts below had erred in law and have not decided the same in its true
perspective according to the intent of the law.
7. We have noticed on various occasions while dealing with the judgments of the
courts below, agitated before us that the aforesaid legal requirements are being
ignored by the courts while handing down judgments in murder cases. As this
anomaly has arisen which is in violation of the intent of the law, therefore, we deem
it necessary and in the fitness of things to resolve this legal issue while delivering
an exhaustive/elaborative judgment for the future guidance. Perusal of the record in
the instant case reflects that the learned Trial Court framed charge in the case on
03.02.2012 in the following terms:-
"CHARGE SHEET
I, Muhammad Anwar Butt, Additional Sessions Judge, Bahawalnagar hereby
charge you:-
1. Muhammad Asif son of Shaukat Ali, aged 19 years;
 2. Rashid son of Nazir Ahmad, aged 20 years;
Both Sukhera by caste
3. Munir Ahmad son of Nazir Ahmad, aged 44 years;
4. Bashir Ahmad son of Nazir Ahmad, aged 44 years;
5. Naseer Ahmad son of Nazir Ahmad, aged 42 years;
All Jat by caste, residents of Chak No. 298/HR Tehsil Fortabbas District
Bahawalnagar.
as under:-
FIRST:
That on 05.08.2011 at 8.00 a.m. in the area of Chak No. 297/HR Tehsil
Fortabbas District Bahawalnagar you all the above named accused persons
in prosecution of your common object caused injuries to Muhammad Ilyas
complainant and Muhammad Shahid PW which were declared as Jurh Ghayr
Jaifah Munaqillah and other hurts and thus you have committed an offence
punishable under sections 337-F(v)/337-L(2) read with section 149, P.P.C.
which is within the cognizance of this court.
SECONDLY:
That on the same day and place at 11.30 a.m. you Muhammad Munir, Naseer
Ahmad and Muhammad Bashir while armed with fire arm weapons in
furtherance of your common intention caused fire arm injuries on the person
of Muhammad Ishaque brother of the complainant, as a result of which he
died at the spot and thus you have committed an offence punishable under
section 302 read with section 34, P.P.C. which is within the cognizance of
this Court.
And I hereby direct that you all be tried by this Court for the above charges."
8. In response to the charge, the accused persons facing trial denied it in toto,
hence claimed trial. The prosecution evidence was summoned by the court, which
was recorded while providing ample opportunity of cross-examination. The legal
attributes of "due process" were fully adhered to during proceedings before the trial
court. The learned ADPP vide statement dated 21.11.2013 closed the prosecution
evidence while giving up PWs Ahmed Raza, Shahid Imran, Mehmood ul Hassan
and Liaqat Ali being unnecessary. He tendered in evidence report of Chemical
Examiner as Ex.PQ, report of Serologist as Ex.PQ/1 and report of Forensic Science
Agency as Ex.PR. On the conclusion of the prosecution case the statements of the
accused persons were recorded under section 342, Cr.P.C. In response to question
'why this case against you' they categorically denied the allegations leveled by the
prosecution but did not opt to lead defence evidence. The learned Trial Court after
conclusion of the proceedings before it, acquitted three co-accused, while
conviction was recorded against petitioners Munir under section 302(b), P.P.C. and
Bashir alias Shada under sections 337-F(vi) and 337-L(2), P.P.C. as narrated above.
This judgment was upheld by the High Court. For the elaborative analysis qua the
application of provision of Section 302 PPC, it would be advantageous to reproduce
Section 300 PPC wherein 'qatl-e-amd ', has been defined as under:-
Qatl-i-amd: Whoever, with the intention of causing death or with the intention of
causing bodily injury to a person, by doing an act which in the ordinary
course of nature is likely to cause death, or with-the knowledge that his act
is so imminently dangerous that it must in all probability cause death, causes
the death of such person, is said to commit qatl-e-amd.
It would also be in "fitness of things" to reproduce section 302, P.P.C., which reads
as under:-
"302. Punishment of qatl-i-amd: Whoever commits qatl-i -amd shall, subject to
the provisions of this Chapter be:
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the
facts and circumstances of the case, if the proof in either of the forms
specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may
extend to twenty-five years, where according to the Injunctions of Islam the
punishment of qisas is not applicable.
Provided that nothing in clause (c) shall apply where the principle of fasad-fil-
arz is attracted and in such cases only clause (a) or clause (b) shall apply."
9. The provision of section 302, P.P.C. provides punishment for the commission
of qatl-i-amd. The punishment of qatl-i-amd has been categorized under the heads "
(a), (b), (c)". The provision of section 302(a), P.P.C. is reflection of punishment as
provided in Islamic system by way of qisas. The word 'qisas' means return of evil
for evil and it also denotes retaliation. Another word 'retribution' is also
synonymous which means a punishment inflicted in return for the wrong and thus
distinctively stresses the operation of the strict justice by administering merited
punishment. The application of section 302(a), P.P.C. provides the return in the
same coin persuading the offender to be done to death in the same manner he
committed death of the fellow person. However, there are certain legal
requirements for application of section 302(a), P.P.C. Section 299(k), P.P.C. defines
qisas in the following terms:-
"qisas" means punishment by causing similar hurt at the same part of the body of
the convict as he has caused to the victim or by causing his death if he has
committed qatl-i-amd in exercise of the right of the victim or a wali',
The Legislature has specifically laid down that the initiation of proceedings under
section 302(a), P.P.C. is subject to qualifying prerequisites as laid down in section
304, P.P.C. The same reads as under:-
"304. Proof of qatl-i-amd liable to qisas, etc.: (1) Proof of qatl-i-amd shall be in
any of the following forms, namely:-
 (a) the accused makes before a Court competent to try the offence a voluntary
and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shalladat, 1984
(P.O. No. 10 of 1984).
(2) The provisions of sub-section (1) shall, mutatis, mutandis, apply to a hurt
liable to qisas.
Bare perusal of the aforesaid provision broadly emphasis two fold conditions, (i)
voluntary and true confession regarding the commission of the offence, (ii)
qualifying the postulates of Article 17 of the Qanun-e-Shahadat Order, 1984.
Article 17 of the Qanun-e- Shahadat Order, 1984, further emphasis the competence
of a person qualifying it to be a truthful witness as required in accordance with the
injunctions of Islam as laid down in Holy Quran and Sunnah. 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 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 that 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 persuade the piousness of the
witness to arrive at a conclusion which endorses the believability qua the character
of the witness by the Presiding Officer.
10. Section 302(b), P.P.C. was made part of section 302, P.P.C. by the
Legislature, which equates provision of section 302(a), P.P.C. regarding the
infliction of sentence of death. In fact there are two sentences provided under the
head 302(b) i.e. death or imprisonment for life as Tazir. There is marked distinction
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 Order 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. The insertion of the word 'tazir'
under the head 302(b), P.P.C. has a specific significance. The word 'tazir' is defined
in section 299(l) as under:-
 "299(l) ta'zir" means punishment other than qisas, diyat, arsh, or daman."
The literal meaning of word 'tazir' is chastisement. Undeniably the 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. A discretion has been left with the court assigned
with the matter to decide and inflict either of the punishments commensurating with
the overt act as surfaced according to facts and circumstances of the case. The
Court of competent jurisdiction is fully justified to award sentence subject to
assigning justiciable reasons to meet the ends of justice. The offence under section
302(b), P.P.C. is otherwise made compoundable by the application of section
345(2), Cr.P.C., which in addition further qualifies that if all the legal heirs have
compounded the offence, the Court is empowered to ensure that the parties may
have buried the hatchets once for all.
11. 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 were 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)(b), P.P.C. Any occurrence though resulted 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 section 302(a)(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. In ordinary speech, the meaning of 'provocation' is said to be
incitement to anger or irritation. In English law it has a meaning based on anger but
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.
Throughout in the proceedings of the cases it is seen to be 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. Analyzing
the concept of 'provocation in law under the Common Law of England, Lord
Devlin, delivering the judgment of the Judicial Committee of the Privy council in
Lee Chun Chuen v. The Queen (1963 1 All ER 73) held as under: -
"Provocation in law consists mainly of three elements the act of provocation, the
loss of self-control, both actual and reasonable, and the retaliation
proportionate to the provocation."
So, it can be said that 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 the ordinary
person to lose self-control, (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. (i) it should be prompt, and (ii) it was retaliated without
inordinate delay. We have also noticed that apart from the circumstances narrated
above inviting application of section 302(c), P.P.C. another situation has now
erupted in the 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
extend the scope of cases falling under the ambit of sudden provocation.
12. In United Kingdom almost in similar situation, the framers of the law
enacted an Act called "Homicide Act, 1957" in which they have dealt with such like
situation under the 'dictum,' 'diminished liability'. To evaluate such like situation,
the mental faculty of the offender was to be gauged according to prevailing
circumstances in which the offence was committed and as such it was given
precedence over the already existing liability regarding culpable homicide
amounting to murder. While drawing analogy from the said legislation, it can be
safely assumed that the provisions of section 302(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.
13. A careful analysis of the aforesaid categories falling under the provision of
section 302, P.P.C. abundantly makes it clear that the provision of section 302(a),
P.P.C. is a distinct provision having different mode and manner of application with
different considerations exclusively derived from the Islamic judicial system. The
proceeding under the aforesaid provision is a rare phenomenon whereas the
majority of the cases dealt with by the courts below fall under section 302(b), P.P.C.
As stated above, provision of section 302(b), P.P.C. provides two sentences i.e.
death, (ii) imprisonment for life. Murder cases exclusively falling within the ambit
of section 302(b), P.P.C. would be dealt with in a manner exclusively depending
upon the number of assailants. Undeniably a single assailant can commit the
aforesaid offence 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 learned 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 aforesaid provision of section 302(b), P.P.C. depending upon
the number of assailants. It is bounden duty of the courts below 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. Now adverting to the moot point which was raised
during the proceedings that if anybody is found guilty of commission of offence
attracting the provision of section 302(b), P.P.C., the co- accused can be saddled
with the responsibility on the basis of individual liability or the whole occurrence
has to be decided keeping in view that the offence was committed in furtherance of
their common intention and the provision of section 302(b), P.P.C. would be applied
conjointly against the persons joining hands falling under either of the categories
i.e. common intention or common object falling under section 34 or 148/149, P.P.C.
depending upon the number of persons facing charge. We may observe that 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.
14. Section 302(c), P.P.C. is an exception to the aforesaid provision under which
in presence of a clear finding that the offence committed was not in furtherance of
common intention or common object, however, the court otherwise comes to the
conclusion that the prosecution has proved its case to the hilt against the accused,
the Court is under legal obligation to record conviction and sentence according to
the role of every assailant constituting a criminal act according to overt act ascribed
to him. The framers of the law while inserting section 302(c), P.P.C. wisely
provided sentence which might extend to 25 years. It was done with an intent to
provide an opportunity to the court of law to inflict sentence proportionate to the
act of the assailant according to the facts surfaced during the course of proceeding.
It is not out of context to highlight that the Trial Court prior to proceeding with the
matter as stated above has to render a definite finding qua the fact that the incident
is not result of common intention or common object which has a substantial
importance to attract the aforesaid provision. Any slackness on the part of the court
to ignore this aspect might infringe the rights of either of the parties involved in the
process of law which is an essential attribute of court proceedings, denial of which
might create imbalance, resulting into chaos in the society. The concept of safe
administration of criminal justice and maintaining equilibrium qua the protection of
legal rights is attire of the judicial system. Any defiance to the said balance might
frustrate the confidence of the public which has to be at the highest pith in a
civilized society. The 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. The Judges have to discharge this arduous task with utmost care and
caution so that public confidence in judicial process is not shattered.
15. For what has been discussed above, we are inclined to issue following
guidelines to the courts below to follow in future:
 i) that the Trial Court seized with the criminal trial is squarely required to adhere
to the provision of sections 265-C, 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 of the land;
ii) that the Trial Court is under obligation to fulfill the requirement as stated
above, 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) that 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;
iv) that 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?
Note: The Trial Court while rendering such finding has to disclose judicial
reasoning.
16. As far as the matter before us is concerned, elaborate findings are clearly
disclosed above. As a consequence, we convert Criminal Petitions Nos. 1371 and
1651-L/2016 into appeals, allow them, set aside the impugned judgments of both
courts below while remanding the matter to the Trial Court for a limited purpose to
re-write the judgment on the basis of existing judicial record within two months
strictly in accordance with law and the guidelines given above. A copy of this
judgment shall also be sent to the Registrars of all High Courts for its onward
circulation to the Hon'ble Judges for future guidance.
17. Since, the main petition filed by the petitioners-convicts has been converted
into appeal, allowed and remanded, Criminal Miscellaneous Application No. 1704
of 2017 for suspension of sentence has become infructuous and is disposed of
accordingly.
Sd/-
Umar Ata Bandial, J
Sd/-
 Sayyed Mazahar Ali
Akbar Naqvi, J
I am not in agreement with the findings of my learned brother for which I have
recorded my own findings separately.
Sd/-
Mazhar Alam Khan
Miankhel, J
MAZHAR ALAM KHAN MIANKHEL, J.---I have the privilege to go through
the judgment authored by my learned brother Sayyed Mazahar Ali Akbar Naqvi, J.
The facts, circumstances, material and evidence, available on the record, do not
appeal me to concur with the opinion given by my learned brother. Repetition of
some facts would be necessary to express my mind.
2. As per the FIR, the incidence, before us, comprised of two episodes. The
complainant Muhammad Ilyas (PW.4) and Muhammad Shahid (PW.5), on
05.08.2011 at 8:00 a.m. present in their fields to irrigate their lands on their notified
time and turn, when noticed reduction in the flow of water, went on to check the
same. They noticed a diversion of water to their own lands by Munir Ahmad etc.
(all five in number, named in the FIR). When they were asked to remove the
diversion and allow them to irrigate their lands. This interruption made them
furious and the petitioner Bashir Ahmed alias Shada gave them blows with handle
of a hatchet and stopped them to remove the breach and caused them injuries.
The second episode of the occurrence was at 11:30 a.m., the same day, when
Muhammad Ishaq (deceased) going ahead of complainant Muhammad Ilyas (PW.4)
and Muhammad Shahid (PW.5), his cousin, (both injured PWs), to mend the breach
and to re-divert the water to their lands, whereupon, Munir Ahmed petitioner,
armed with rifle, Naseer Ahmad and petitioner Bashir Ahmed alias Shada, both
possessing firearm, present on the roof top of their 'Dera' confronted them from
their 'Dera'. Munir Ahmed fired a straight shot at Muhammad Ishaq (deceased),
hitting him on the right side of the clavicle whereas the witnesses escaped the
straight fire shots by Naseer Ahmad and Bashir Ahmed alias Shada co-accused. The
complainant (PW.4) was medically examined. The medical officer found two
bruises and one swelling on his person with a fracture of metacarpal bone.
Muhammad Shahid (PW.5) was noted with a swelling with no bone lesion whereas
the solitary fire shot attributed to the petitioner Munir Ahmed proved fatal to
Muhammad Ishaq (deceased).
3. The learned trial Judge, after conclusion of the trial acquitted the accused
Bashir Ahmed alias Shada and Naseer Ahmad from the charge of murder leveled
against both of them by holding that no case of common intention or common
object against them was made out and recorded conviction of Munir Ahmad,
petitioner only, for the murder of Muhammad Ishaque and sentenced him to death.
Whereas Bashir Ahmed alias Shada was convicted and sentenced for causing
injuries to both the PWs, Muhammad Ilyas (PW-4) and Muhammad Shahid, (PW-
5). Rest of the three accused Naseer Ahmad, Asif and Rashid were given clean chit
of acquittal. The acquittal of the above named accused and acquittal of the two
from the charge of murder for want of proof of common intention or common
object was neither challenged by way of appeal by the State or the complainant.
Even any appeal for enhancement of sentence of Bashir Ahmed alias Shada,
petitioner, was also not filed. This aspect of the case reflects that State and
complainant party was fully satisfied with the judgment of the trial court.
4. The High Court, on appeal, maintained the conviction of Munir Ahmed for the
murder of Muhammad Ishaque, however, altered his sentence of death into
imprisonment for life whereas the conviction and sentence of petitioner Bashir
Ahmed alias Shada for causing injuries to PWs was maintained.
5. Both the convicts filed the instant petition for leave to appeal against their
convictions. We had heard the learned counsel for the petitioners as well as the
learned D.P.G. Punjab for the State assisted by the learned counsel for the
complainant and had gone through the available record.
The perusal of the judgment handed down by my learned brother reflects that the
fate of the convicts, on the available evidence, has not been decided and the matter
has been remitted back to the trial Court by setting aside the judgments and the
convictions and sentences recorded by the trial Court and the High Court. So, I
would also not like to express my mind regarding fate of the case and would try to
confine myself to see as to whether remand of the case, in the given circumstances,
is justified or not. It is worth to be noted that there were five accused in all, three of
whom were acquitted (specially the accused Naseer Ahmad with the similar role of
firing) by the trial Court and the present two petitioners were convicted. There was
no appeal, as stated above, against the acquittal of the three accused and as such,
the same has attained finality, which at present, cannot be called in question. The
criminal jurisprudence so far established is that presumption of innocence is
significantly added to the acquittal. The scope of interference with such
presumption is very narrow specially when it has attained finality as in the present
case. The complainant has only filed a criminal petition for leave to appeal (Crl.
P.L.A. No.1651-L/2016) against alteration of sentence of Munir Ahmad from death
to life imprisonment by the court of appeal and sought restoration of sentence of
death awarded by the trial court. This judgment of remittance, as noted above,
would be only to the extent of present petitioners. The perusal of the record would
establish the fact that role of both the convicts qua the murder and the injuries to
the PWs. is quite independent. The remand of the case of present two
petitioners/convicts itself would be against the norms of justice when three other
accused, specifically the accused Naseer Ahmad, with the similar role of firing on
PWs as attributed to Bashir Ahmed alias Shada, have been acquitted. The remand
of the case has been ordered for considering the case of the petitioners on the
touchstone of the common intention/ common object of the accused party at the
time of commission of the offence.
6. The purpose and application of the provisions of sections 34 and 149, P.P.C.,
no doubt, has aptly been explained by my learned brother, which, with due respect,
at the most can be considered as an academic discussion but as far as the material
and evidence available before this Court is concerned, that does not attract the
provisions of section 34, P.P.C. For ready reference sections 34 and 149, P.P.C. are
reproduced herein below:-
"34. Acts done by several persons in furtherance of common intention.---When a
criminal act is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act in the same
manner as if it were done by him alone.
149. Every member of unlawful assembly guilty of offence committed in
prosecution of common object.---If an offence is committed by any member
of an unlawful assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of
that offence."
A look at the above quoted provisions of law makes it clear that if a criminal act
is done by the several persons in furtherance of their common intention or the
offence is committed by any member of an unlawful assembly in prosecution of the
common object of that unlawful assembly, then in that case each of such person or
any of the member of such assembly would be liable for the commission of
criminal act or guilty of that offence. The alleged criminal act should be in
furtherance of common intention and not the common intention simpliciter. Mere
presence of an accused with an accused who commits the crime would not
constitute his common intention unless there is an evidence referring to the
criminal act of that accused committed in furtherance of common intention with the
other accused. The role of firing (criminal act) though was attributed to Naseer
Ahmad and Bashir Ahmed alias Shada (one of the petitioner before us) but the trial
Court not only acquitted both the said accused but also held that there was no
evidence of common intention. This finding of trial Court has also attained finality.
There becomes no legal or moral justification for remand of the case of one of them
on matter which has already been decided and attained finality.
7. After perusal of the entire evidence, the factum of common intention under
the provisions of section 34, P.P.C. is not made out. In both of the episodes of the
occurrence, it appears to be the individual acts of each accused which took place at
the spur of the moment in a reaction of complainant party's request for mending the
breach of water channel. Causing of injuries to the PWs and the murder of
Muhammad Ishaque took place in two separate and independent episodes. In the
first episode, the other accused did not commit any criminal act with their common
intention and they did not cause any injury to PW.4 and PW.5, who, being empty
handed, were at their mercy. No such overt act falling in the definition of criminal
act was even attributed to them in the FIR. Similarly, single fire shot has been
attributed to Munir Ahmed convict at the person of Muhammad Ishaq (deceased)
whereas the other accused Naseer Ahmad and Bashir Ahmed alias Shada fired at
complainant Muhammad Ilyas (PW.4) and Muhammad Shahid (PW.5) who
miraculously escaped but such a story can hardly be believed. Had they having the
common intention to commit the murder of the PWs. who were at their mercy and
reportedly empty handed, could have easily achieved their intention of the criminal
act. The trial Court by not believing their version, has acquitted both Naseer Ahmad
and Bashir Ahmed alias Shada from the charge of murder and as such there was no
appeal by the complainant party against their said acquittal despite the fact that
they had the legal advice available to them during the trial and thereafter. This very
act of the complainant party further suggests that they were fully satisfied with the
decision of the trial Court. The petitioner Bashir Ahmed alias Shada, as earlier said,
was convicted for his criminal act of causing injuries to the PWs. and was
convicted to that extent only. The trial Court, before whom the evidence is recorded
and who also notices the demeanor of the witnesses, has categorically held "there is
no incriminating material to prove the factum of common object or common
intention. Therefore, offence of committing murder against accused Bashir alias
Shada and Naseer is not made out." Neither the prosecution nor the complainant
has challenged this verdict of acquittal of charge of murder of the above two in
appeal. Similar were the findings of the appellate Court.
8. The question of common intention and common object has been dilated upon
by this Court and the High Courts in a number of cases and no aspect is left
untouched. I would like to make reference to some of such important cases as to
how the question was dealt with by our Courts.
"(1994 SCMR 1327)
MANZOOR HUSSAIN and 4 others---Appellants versus THE STATE---
Respondent
We are, therefore, of the opinion that the occurrence is not the result of pre-
concert and premeditation but occurred on account of sudden flare up. In the
case of Bashir Ahmad v. The State (PLD 1988 SC 86), this Court observed
that wherever there is doubt about application of sections 34, 107 and 149,
P.P.C. it is always necessary not to apply either of these provisions which
seek conviction on vicarious liability only. In another case Misbahuddin v.
The State PLD 1983 SC 79 it was held that in case of sudden quarrel
question of furtherance of common intention would not arise. Consequently,
the provision of section 149, P.P.C. was not attracted to the facts of the
present case or at least its application was not free from doubt. We are,
therefore, not inclined to maintain conviction and sentence of Mumtaz
Hussain, Mulazim Hussain and Manzoor Hussain under section 302/149,
P.P.C., however, they are responsible for their individual acts for causing
injuries to Muhammad Hussain P.W. 8 with their respective weapons of
knives and daggers.
.....
(1992 SCMR 1983)
Ch. MUHAMMAD YAQOOB and others---Appellants versus THE STATE and
others-Respondents
24. Mr. Munir Piracha, learned counsel for two of the appellants, adopted Mr.
Abid Hassan Minto's arguments and, without prejudice to his contentions on
merits, in the alternative, has vehemently urged that in the present case, the
 Courts below erred in pressing into service section 34 of the Pakistan Penal
Code, as, on the basis of the evidence on record, common intention to
commit the offence in question, cannot be attributed to the appellants/
convicts. According to him the appellants/ convicts had no knowledge of the
factum that they would be forced to commit the offence till the time they
were forced to kill the deceased at the place of Wardat, and as they were told
at the police station that the deceased were to be shifted to Khipro Jail.
It is correct that the accused/ convicts in their confessions, and the approver in
his statement, have stated that they were told at the police station, that the
deceased were to be taken to Khipro Jail, but common intention could be
formed at the spur of the moment, as had been held by this Court in the case
of Muhammad Akbar and two others v. The State (PLD 1991 SC 923),
wherein after referring to the relevant case-law on the above question,
following conclusion was drawn:----
"From the above-referred cases, it is evident that a joint action by a number of
persons is not necessarily an action performed with a common object, but it
may be performed on the spur of the moment as a reaction to some incident
and such a case could fall within the ambit of section 34, P.P.C. However, it
may be pointed out that section 34, P.P.C. contemplates an act in furtherance
of common intention and not the common intention simpliciter and that
there is a marked distinction between similar intention and common
intention and between knowledge and common intention....
(PLD 1991 Supreme Court 923)
MUHAMMAD AKBAR and 2 others---Appellants versus THE STATE---
Respondent
12. From the above-referred cases, it is evident that a joint action by a number of
persons is not necessarily an action performed with a common object, but it
may be performed on the spur of the moment as a reaction to some incident
and such a case would fall within the ambit of section 34, P.P.C. However, it
may be pointed out that section 34, P.P.C. contemplates an act in furtherance
of common intention and not the common intention simpliciter and that
there is a marked distinction between similar intention and common
intention and between knowledge and common intention. It may also be
observed that mere presence of an accused at the place of incident with a co-
accused who commits offence may not be sufficient to visit the former with
the vicarious liability, but there should be some strong circumstance
manifesting a common intention. Generally common intention inter alia
precedes by some or all of the following elements, namely, common motive,
pre-planned preparation and concert pursuant to such plan. However,
common intention may develop even at the spur of moment or during the
commission of offence as pointed out hereinabove. Conversely common
intention may undergo change during the commission of offence.
(PLD 1988 Supreme Court 86)
BASHIR AHMAD and others---Petitioners versus THE STATE---Respondent
 The next question regarding their common intention with Bashir and whosoever
the other was with him in the strangulation, suffice it to state that the same
also is not free from doubt. And whenever there is doubt about application
of Sections 34, 107 and 149 PPC it is always necessary not to apply either
of these provisions, which seek conviction on vicarious liability only. Why
it is in doubt in this case whether section 34 is applicable is not far to seek
(1984 SCMR 1069)
SAEE AND OTHERS---Appellants Versus THE STATE---Respondent
The learned Judges in the High Court have not created any such distinction in
the two groups but have held that Muhammad Saee alone had the intention
of causing the death of Asghar Ali, fired at him and in fact caused the death
of Asghar Ali. It was not in the prosecution of the common object of the
unlawful assembly. Similarly, his four other companions who were found to
have fired and injured or given hatchet blows to the other witnesses were
found not have done so in prosecution of the common object but with the
common intention and for that reason their conviction was recorded under
sections 307/34, P.P.C. on four counts
(PLD 1972 Lahore 19)
ATHAR KHAN AND 2 OTHERS---Appellants versus THE STATE---
Respondent
In Fazzo Khan and others v. Jatto Khan and another (1) Sir Gorge Clause
Rankin, Kt. Chief Justice and Graham, J., held that:-
"To attract the operation of section 34, Penal Code, and fix constructive guilt on
each of the several accused under that section, there must be participation in
action, with a common intention, although the different accused might have
taken different parts; and unlike under section 149 before any of them can
be convicted for an offence read with section 34, the Court must arrive at a
finding as to which of the accused took what part, if any, in furtherance of
the common intention. A conviction without such finding is illegal."
(1970 SCMR 780)
MUHAMMAD AZAD AND 6 OTHERS---Appellants versus THE STATE---
Respondent
The contention that these six persons can only be held responsible on the
evidence, for the consequences of their individual acts is obviously
untenable, since the attacks upon Tikka Khan, Abdul Aziz and Bhag Ali are
clearly proved to have been the concerted work of the persons who have
been named above, acting in groups. The application of section 149, P.P.C.
in the circumstance of the case may not be entirely appropriate, for, as has
been seen already, the indications are that the injuries of the individual
members of the complainant-party were not the result of a massed attack by
four hundred persons on four hundred others, but the attacks on these
persons were included in a number of sporadic assaults, and they cannot be
 regarded safely otherwise than in isolation from each other. But joint
responsibility of the nature for which provision is made in section 34, P.P.C.
clearly attaches to those who joined in the attack upon a particular
individual, to the extent that his injuries were the reasonable and natural
consequence of the attack.
(1924) L.R. 52 I.A. 40)
Appellants: Barendra Kumar Ghosh versus Respondent: The King-Emperor
There is a difference between object and intention, for, though their object is
common, the intentions of the several members may differ and indeed may
be similar only in respect that they are all unlawful, while the element of
participation in action, which is the leading feature of section 34, is replaced
in section 149 by membership of the assembly at the time of the committing
of the offence. Both sections deal with combinations of persons, who
become punishable as sharers in an offence. Thus they have a certain
resemblance and may to some extent overlap, but section 149 cannot at any
rate relegate section 34 to the position of dealing only with joint action by
the commission of identically similar criminal acts, a kind of case which is
not in itself deserving of separate treatment at all.
........."
9. By keeping in mind the evidence and the material available on the record and
in view of the judgments, referred to above, would make it absolutely clear that
element of common intention is not proved and the Courts below have properly
dealt with the matter. Sending back the case of the petitioners after about ten years
would, in my humble opinion, be nothing short of increasing their agonies and
anguish. By sending their case back to dilate upon the same evidence and the issue,
which has already been dealt with by the Courts below and the complainant party
has also accepted the same and never raised such issue by questioning the verdicts
of the Courts, would serve no purpose and not advisable under the law, specially,
when the other three accused have earned an acquittal to its finality. Sending back
the case of the two would also be against substantial justice. Besides the above, I
am also unable to agree with issuance of guidelines/directions by my learned
brother for circulation to all the Courts. No doubt this Court is the highest Court of
appeal in the country and the law laid down by this Court is binding on all the
Courts but issuance of directions to the subordinate Courts to follow a particular
course of action in criminal matters is not the domain of this Court as this would be
considered by the courts below to be binding as per the provisions of Article 189 of
the Constitution of the Islamic Republic of Pakistan, 1973 (the 'Constitution'). In
my opinion, every Judge is independent and autonomous within its allocated sphere
of jurisdiction and such direction would amount to interference in their
independence which is not permissible under the law. The Appellate Court indeed
can uphold, modify or set aside the judgment of the lower fora but such
guidelines/directions cannot be held as an "act in aid" of the Supreme Court as
contemplated in Article 190 of the Constitution. Such guidelines/directions being
supervisory in nature would also amount to an encroachment upon the supervisory
powers of the High Court vesting in it under Article 203 of the Constitution.
 10. Since fate of the petitions, on the merits, have not been announced, so, in my
humble opinion, the petitions be fixed for rehearing and be decided on the basis of
available record and the law. The above were the reasons for my additional note.
Sd/-
Mazhar Alam Khan
Miankhel, J
ORDER OF THE COURT
By majority of two to one (Mazhar Alam Khan Miankhel, J dissenting), Criminal
Petition Nos. 1371 & 1651-L of 2016 are converted into appeals, allowed and the
impugned judgments of the learned High Court as of the learned Trial Court are set
aside and the matter is remanded back to the learned Trial Court to conclude the
trial in the light of this judgment within a period of two months whereas Criminal
Miscellaneous Application No. 1704 of 2017 for suspension of sentence is disposed
of as having become infructuous.
Sd/-
Umar Ata Bandial, J
Sd/-
Mazhar Alam Khan Miankhel, J
Sd/-
Sayyed Mazahar Ali Akbar
Naqvi, J
MWA/B-5/SC Order accordingly.
;