IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE MUNIB AKHTAR  
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND 
CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 
(On appeal against the judgment dated 19.02.2015 passed by 
the Lahore High Court, Lahore in Criminal Appeal Nos. 868, 876 
& 1037/2010) 
 
Muhammad Nawaz  
 
 
 
(In Cr.A. 531/2019) 
Muhammad Ilyas 
 
 
 
 
(In Cr.A. 532/2019) 
Irfan Ali (complainant) 
 
 
 
(In Cr.Ps. 339-L & 361-L/2015) 
 
… Appellants/Petitioner 
VERSUS 
The State through P.G. and others  
 
(In all cases) 
… Respondents 
 
For the Appellants: 
Ms. Asma Hamid, ASC 
 
Ch. Akhtar Ali, AOR 
 
(In Cr.As. 531 & 532/2019) 
 
 
 
For the Petitioner:  
Mir Sikandar Zulqarnain Saleem, ASC 
 
 
 
 
(In Cr.Ps. 339-L & 361-L/2015) 
 
For the State:  
 
Mr. Muhammad Jaffar, DPG Punjab 
 
Date of Hearing: 
 
23.05.2022 
 
JUDGMENT 
 
CRIMINAL APPEAL NOs. 531 & 532/2019 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Muhammad Nawaz 
and Muhammad Ilyas along with eight co-accused were tried by the 
learned Anti Terrorism Court-III, Lahore, pursuant to a case registered vide 
FIR No. 400/2007 dated 23.05.2007 under Sections 302/324/148/149 PPC 
read with Section 7 of the Anti Terrorism Act, 1997, at Police Station 
Ferozwala, District Sheikhupura for committing murder of Ghulam 
Mustafa and Noor Muhammad and for causing injuries to Zeeshan, Ihsan, 
Rehmat Ali and Qamar Shah.  
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CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 
2
2. 
 
The facts as given in the judgment of the learned Trial Court 
are reproduced as under:- 
“2. 
The FIR Fx.PL was lodged by P.W-10 Irfan Ali complainant on 
23.05.2007 at 8:25 am on the allegations that he is the resident of 
Bhulay Banawal. His brother Ghulam Mustafa is councilor of 
locality. There was dispute of land between Ghulam Muhammad 
etc. and Noor etc. residents of village and a case was pending in 
the court. His brother Ghulam Mustafa was asked for settlement 
of dispute. On 23.05.2007 at 7:00 am he was present in his house 
when Imran came there and told that Ghulam Muhammad etc. 
was giving physical torture to his brother Ghulam Mustafa, 
whereby, he along with Rehmat Ali, Ehsan Ali, Zeeshan Ali and 
Imran rushed to the place of occurrence, where Ghulam 
Muhammad etc. while armed with weapons were giving physical 
torture to Ghulam Mustafa and Noor. Ilyas accused armed with 
pump action gun, Nawaz s/o Sultan armed with gun 12-bore, Riaz 
armed with gun 12-bore, Imtiaz armed with rifle 44-bore, Zafar 
armed with gun 12-bore, Altaf armed with gun 12-bore, Ghulam 
Muhammad armed with carbine, Ishaque armed with pistol 30-
bore, Bukhsha armed with carbine, Nawaz s/o Khan armed with 
pistol 30-bore all residents of village along with four un-known 
persons were present there. Ghulam Muhammad raised lalkara 
that all of them should be killed, whereupon, Ilyas accused made 
fire with pump action gun which landed near the right flank of 
Ghulam Mustafa; Nawaz made fire with gun 12-bore which also 
landed near the right flank of Ghulam Mustafa; Ilyas accused 
again made fire with pump action gun which landed on the right 
thigh of Ghulam Mustafa; Zafar accused made fire with gun 12-
bore on Zeeshan which landed on his lower abdomen; Altaf made 
fire with gun 12-bore which landed on the right thigh of Zeeshan. 
Rest of the accused also made firing with their respective firearms 
and the fires hit on different parts of bodies of Ehsan Ali, Noor 
and Qamar Shah, as a result of which they were seriously injured. 
He saved his live by laying on the ground. The accused persons 
made reckless firing with their weapons and while raising lalkaras 
fled away from the spot. Grave fear, harassment and terrorism 
was created in the locality. He shifted the injured persons to 
Mayo Hospital. His brother Ghulam Mustafa succumbed to the 
injuries in the way, whereas, rest of the injured persons were got 
admitted in the hospital. Apart from him Ehsan, Rehmat, Zeeshan, 
Noor Muhammad, Qamar Shah and Imran saw the occurrence.” 
 
 
3. 
 
During the course of investigation carried out by the local 
police, the appellants along with other co-accused except Bukhsha were 
found guilty and as such a report under Section 173 Cr.P.C. was submitted 
before the Trial Court. The learned Trial Court seized of the matter framed 
charge against 10 accused under Sections 302/324/148/149 PPC read with 
Section 7(a)(c)(h) of the Anti Terrorism Act. The learned Trial Court while 
CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND 
CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 
3
framing the charge specifically mentioned that all the accused while 
forming an unlawful assembly in furtherance of their common object have 
committed the crime wherein two persons lost their lives while four 
sustained injuries and as such committed an offence falling under Section 
149 PPC. The charge framed against all the accused reads as under:- 
“MULTIPLE CHARGE 
 
Trial #: 
F.I.R. #: 400 Dated: 23.05.07 
P.S: Feroz Wala, Distt. Sheikhupura. 
 
I, Shabbir Hussain Chattha, Judge Anti-Terrorism Court No.3, Lahore 
considering the material, placed before me, hereby charge you:- 
 
1: 
Ghulam Muhammad s/o Sher Muhammad. Caste: Kharyl. r/o 
Bhullay Banay Wal 
 
2: 
Imtiaz Ahmed s/o Ghulam Muhammad. Caste: Kharyl. r/o 
Bhullay Banay Wal 
 
3: 
Muhammad Ilyas s/o Ghulam Muhammad. Caste: Kharyl. r/o 
Bhullay Banay Wal 
 
4: 
Muhammad Nawaz s/o Sultan Ahmed. Caste: Kharyl. r/o 
Bhullay Banay Wal 
 
5: 
Zafar Iqbal s/o Sardar Ahmed. Caste: Kharyl. r/o Bhullay 
Banay Wal 
 
6: 
Sarfraz Ahmed s/o Sultan Ahmed. Caste: Kharyl. r/o 
Muhammad Wala Thana Budhana, Distt. Jhang. 
 
7: 
Riaz Hussain s/o Muhammad Sharif. Caste: Hashmi r/o 
Saddiqua Colony, Ravi Road, Near Girls College, Lahore. 
 
8: 
Altaf Hussain s/o Sher Muhammad Caste: Kharyl. r/o Bhullay 
Banay Wal 
 
9: 
Mushtaq @ Eshaq s/o Sher Muhammad Caste: Kharyl. r/o 
Bhullay Banay Wal 
 
10: 
Muhammad Nawaz s/o Khan Muhammad. Caste: Kharyl. r/o 
Bhullay Banay Wal 
 
(……accused under trial) 
 
on the following allegations:- 
 
Firstly, that on 23.05.07 at about 7:00 am within the area of Bhullay 
Banay Wal, P.S. Ferozwala, Distt. Sheikhupura, you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object constituted an unlawful assembly, which is an 
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CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 
4
offence punishable u/s 148/149 PPC, which is within the cognizance 
of this court being allied offence. 
Secondly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you both the accused 
Ilyas & Nawaz s/o Sultan named above fired shots upon Ghulam 
Mustafa (since deceased) on different parts of his body as a result of 
which said Ghulam Mustafa died after some time of the occurrence 
and thus committed Qatl-e-Amd of Ghulam Mustafa which is an 
offence punishable u/s 302/149 PPC, which is within the cognizance 
of this court being allied offence. 
Thirdly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you both the accused 
Ilyas & Nawaz s/o Sultan named above fired shots upon Ghulam 
Mustafa (since deceased) on different parts of his body as a result of 
which said Ghulam Mustafa died after some time of the occurrence 
and thus committed Qatl-e-Amd of Ghulam Mustafa also committed 
an act of terrorism as fear and insecurity was created amongst the 
people of locality, which is an offence punishable u/s 7(a), ATA, 1997, 
which is within the cognizance of this court being scheduled offence. 
Fourthly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you both the accused 
Zafar & Altaf named above fired shots upon Zeeshan on different 
parts of his body, as a result of which said Zeeshan got injured, which 
is an offence punishable u/s 324/149 PPC, which is within the 
cognizance of this court being allied offence. 
Fifthly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you both the accused 
Zafar & Altaf named above fired shots upon Zeeshan on different 
parts of his body, as a result of which said Zeeshan got injured, and 
thus by seriously injuring said Zeeshan also committed an act of 
terrorism as fear and insecurity was created amongst the people of 
locality, which is an offence punishable u/s 7(c), ATA, 1997, which is 
within the cognizance of this court being scheduled offence. 
Sixthly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you both the accused 
Riaz & Sarfraz named above accused also fired shots upon Rehmat 
Ali, as a result of which said Rehmat Ali got injured, which is an 
offence punishable u/s 324/149 PPC, which is within the cognizance 
of this court being an allied offence. 
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5
Seventhly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you both the accused 
Riaz & Sarfraz named above accused also fired shots upon Rehmat 
Ali as a result of which said Rehmat Ali got injured, and thus by 
injuring said Rehmat Ali also committed an act of terrorism as fear 
and insecurity was created amongst the people of locality, which is 
an offence punishable u/s 7(c), ATA, 1997, which is within the 
cognizance of this court being scheduled offence. 
Eighthly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you the accused Ghulam 
Muhammad named above fired shot upon Ehsan Elahi as a result of 
which said Ehsan Elahi got injured, which is an offence punishable 
u/s 324/149 PPC, which is within the cognizance of this court being 
an allied offence.  
Ninthly, that on the same date, time and place you all the accused 
named above along with your co-accused Baksha (since P.O) and 3 
other unknown co-accused while armed with firearm weapons with 
common object to kill and in the meanwhile you the accused Ghulam 
Muhammad named above fired shot upon Ehsan Elahi as a result of 
which said Ehsan Elahi got injured, and thus by injuring said Ehsan 
Elahi also committed an act of terrorism as fear and insecurity was 
created amongst the people of locality, which is an offence 
punishable u/s 7(c), ATA, 1997, which is within the cognizance of this 
court being scheduled offence. 
Tenthly, that on the same date, time and place you all the accused 
named above along with your co-accused named above while armed 
with firearm weapons with common object to kill and in the 
meanwhile you all the accused Riaz, Sarfraz & Imtiaz named above 
made fire shots upon Noor Muhammad on different parts of his body 
as a result of which Noor Muhammad got injured and later expired in 
Mayo Hospital, Lahore on 24.05.07 and thus committed Qatl-e-Amd 
of said Noor Muhammad, which is an offence punishable u/s 
302/149 PPC, which is within the cognizance of this court being allied 
offence.  
Eleventhly, that on the same date, time and place you all the 
accused named above along with your co-accused named above 
while armed with firearm weapons with common object to kill and in 
the meanwhile you all the accused Riaz, Sarfraz & Imtiaz named 
above made fire shots upon Noor Muhammad on different parts of 
his body as a result of which Noor Muhammad got injured and later 
expired in Mayo Hospital, Lahore on 24.05.07 and thus committed 
Qatl-e-Amd of said Noor Muhammad, and thus committed an act of 
terrorism as fear and insecurity was created amongst the people of 
locality, which is an offence punishable u/s 7(a), ATA, 1997, which is 
within the cognizance of this court being scheduled offence.  
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Twelevethly, that on the same date, time and place you all the 
accused named above along with your co-accused named above 
while armed with firearm weapons with common object to kill & in 
the meanwhile your co-accused Baksha (since P.O) made a fire shot 
upon Qamar Shah as a result of which said Qamar Shah got injured, 
which is an offence punishable u/s 324/149 PPC, which is within the 
cognizance of this court being an allied offence. 
Thirteenly, that on the same date, time and place you all the accused 
named above along with your co-accused named above while armed 
with firearm weapons with common object to kill & in the 
meanwhile your co-accused Baksha (since P.O) made a fire shot upon 
Qamar Shah as a result of which said Qamar Shah got injured, and 
thus by injuring said Ehsan Elahi also committed an act of terrorism 
as fear and insecurity was created amongst the people of locality, 
which is an offence punishable u/s 7(c), ATA, 1997, which is within 
the cognizance of this court being scheduled offence. 
Fourteenly, that on the same date, time and place you all the 
accused named above along with your co-accused as mentioned 
above while armed with firearm weapons by making firing at the said 
place sent a wave of harassment amongst the people of locality, 
which is an offence punishable u/s 7(h) ATA, 1997, which is within 
the cognizance of this court being scheduled offence.”  
 
4. 
 
In order to prove its case, the prosecution produced as many 
as 18 witnesses whereas one court witness was also examined. On the 
conclusion of the prosecution case, the accused persons got recorded 
their statements under Section 342 Cr.P.C. wherein they denied the 
allegations leveled against them. However, they did not opt to appear as 
witness under Section 340(2) Cr.P.C to disprove the allegations as a 
witness but preferred to produce Muhammad Saleem as DW-1 and relied 
upon certain documents Ex.DA to Ex.DH. On conclusion of the trial, the 
learned Trial Court vide its judgment dated 30.03.2010 found the 
appellants Muhammad Nawaz, Muhammad Ilyas and co-accused Sarfraz 
Ahmed guilty and as such they were sentenced to death on two counts 
each under Section 302/34 PPC. They were also directed to pay 
compensation amounting to Rs.200,000/- each to the legal heirs of each 
deceased. The compensation if not paid was ordered to be recovered as 
arrears of land revenue. The compensation if neither paid nor recovered, 
the convicts were ordered to further suffer six months SI each. Co-accused 
Zafar Iqbal and Altaf Hussain were convicted and sentenced to 10 years RI 
each under Section 324/34 PPC with a fine of Rs.50,000/- each or in 
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7
default whereof to further undergo one year SI each. Sarfraz Ahmad, who 
was sentenced to death, was also convicted under Section 324/34 PPC and 
sentenced to 10 years RI with a fine of Rs.50,000/- or in default whereof to 
further suffer one year SI each. However, the learned Trial Court while 
convicting the appellants and co-accused, acquitted co-accused (i) Ghulam 
Muhammad, (ii) Imtiaz Ahmad, (iii) Riaz Hussain, (iv) Mushtaq @ Ishaque, and 
(v) Nawaz s/o Khan Muhammad on the basis that the charge against them 
was not proved.  
 
5. 
 
The appellants and co-accused Sarfraz Ahmed filed appeals 
against their conviction before the learned High Court whereas the State also 
challenged the acquittal of five co-accused before the High Court. In appeal, 
the learned High Court while maintaining the conviction under Section 
302/34 PPC, altered the sentence of death into imprisonment for life to the 
extent of appellants before us. The amount of compensation and the 
sentence in default thereof was also maintained. Benefit of Section 382-B 
Cr.P.C. was also extended to the appellants. However, the learned High Court 
while handing down the judgment surprisingly acquitted all the accused 
under Section 148 PPC although they were convicted under Section 148 PPC 
by the Trial Court and were sentenced to three years RI each. The learned 
High Court also set aside the conviction and sentences recorded by the 
learned Trial Court against the co-accused Sarfraz Ahmed. The appeal against 
acquittal of five co-accused was also dismissed. Being aggrieved by the 
impugned judgment, the appellants/convicts filed Criminal Petition Nos. 337-
L & 338-L/2015, out of which have arisen Criminal Appeal Nos. 531 & 
532/2019. The complainant has also challenged the impugned judgment by 
filing Criminal Petition Nos. 339-L & 361-L/2015 seeking enhancement of the 
sentence awarded to the appellants and the above-named co-accused.  
 
6. 
 
During the course of proceedings before this Court, a query 
was made to the learned counsel for the appellants qua the legality of 
conviction and sentence recorded by the Trial Court. Although it is an 
admitted fact that the learned Trial Court while framing charge against the 
appellants and other co-accused had charged them for the offences of 
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8
‘common object’ falling under Sections 148/149 PPC but while deciding the lis 
each accused was dealt on the basis of ‘individual liability’ especially with 
reference to the injuries caused to PWs. The conviction was recorded against 
the appellants for the murder of two deceased persons. However, the 
applicability of Sections 148/149 PPC with reference to other co-accused was 
totally ignored and they were convicted on the basis of ‘individual liability’ 
without assigning a ‘definite finding’ regarding their participation as members 
of unlawful assembly and commission of offences in furtherance of their 
common intention falling under Sections 148/149 PPC. When the appellants 
and co-accused were specifically charged for having committed the crime in 
furtherance of their common object, the learned Trial Court ought to have 
given a definite finding regarding the applicability of Section 302/148/149 
PPC to the co-accused qua the charge of murder. The learned courts below 
ignored the fact that all the accused committed their respective overt acts in 
furtherance of their common object, and as such they were part of the 
unlawful assembly, hence, the conviction and sentence recorded against the 
accused on the basis of individual liability in the absence of any “definite 
finding” to negate that the act of each individual was without premeditation, 
is beyond the scope of law. The act of each individual, if committed in 
furtherance of the common object, the facts are to be dealt conjointly to 
arrive at a conclusion in the spirit of law of the land. This query with 
reference to the facts and circumstances of the instant case could not be 
controverted by the learned counsel for the appellants. Even the learned Law 
Officer conceded that the learned Trial Court ought to have given a “definite 
finding” as to whether the occurrence was committed by the accused in 
furtherance of their common object or not.  
7. 
 
This Court in a recent judgment dated 26.11.2020 passed in 
Criminal Petition Nos. 1371 & 1651-L of 2016 has given elaborative guidelines 
for the application of Section 302 PPC. It would be advantageous to 
reproduce the relevant portion of the judgment. The same reads as under:- 
 
“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:- 
 
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9
Qatl-e-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 PPC, 
which reads as under:-  
 
“302. Punishment of qatl-i-amd : Whoever commits qatl-e-
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 PPC provides punishment for the 
commission of qatl-e-amd. The punishment of qatl-e-amd has been 
categorized under the heads “(a), (b), (c)”. The provision of Section 
302(a) PPC 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) PPC 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) 
PPC. Section 299 (k) PPC 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-
iamd 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) PPC is subject to qualifying 
prerequisites as laid down in Section 304 PPC. 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: - 
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10
(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) PPC was made part of Section 302 
PPC by the Legislature, which equates provision of Section 302(a) 
PPC 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 
PPC 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 
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11
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) PPC 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) PPC 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) PPC is somewhat similar 
to the erstwhile Section 304 PPC. The provision of Section 302(c) 
in the original text was an exception of Section 302 PPC while 
following the requirements of erstwhile Section 304 PPC. 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) PPC. 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) 
PPC. 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) PPC. 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 
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12
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) PPC 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) PPC 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 PPC abundantly makes it clear 
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13
that the provision of Section 302(a) PPC 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) PPC. As stated above, 
provision of Section 302(b) PPC provides two sentences i.e. 
death, (ii) imprisonment for life. Murder cases exclusively falling 
within the ambit of Section 302(b) PPC 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 PPC 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 Sections148/149 PPC 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 PPC (common intention) or Sections 148/149 PPC 
(common object). These two legal aspects are to be addressed 
with the application of the aforesaid provision of Section 302(b) 
PPC 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 & 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 PPC or Sections 148/149 PPC 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) PPC, 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) 
PPC 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 
PPC 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) PPC 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) PPC 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 
CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND 
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14
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) PPC 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.” 
 
8. 
 
A bare perusal of the afore-referred judgment of this Court 
makes it clear that while dealing with murder cases falling within the ambit of 
Section 302 PPC, the Trial Court has to evaluate the act committed in the 
circumstances, which covers that it was committed in furtherance of 
common intention or on the basis of individual liability to press in the 
provision of Section 302(b) or 302(c) PPC and it has to give a definite finding 
qua the same. Any judgment which concludes that the offence falling 
under Section 302(b) PPC was committed in furtherance of common 
intention or common object but the sentence is inflicted on the basis 
of individual liability, the same would be squarely in defiance of the 
intent and spirit of law on the subject. However, if the Court comes to 
the conclusion that the elements of common intention and common 
object have not been established, then each accused would be dealt 
with, under the provisions of Section 302(c) PPC according to their 
own role and severity of allegations and would be sentenced 
CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND 
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15
accordingly by the Court exercising its discretionary powers. This Court 
while holding so, has also given following guidelines to the Courts 
below:- 
 
“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 PPC) or common object 
(Section 148/149 PPC 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) & 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) 
PPC 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.”  
 
9. 
 
For what has been discussed above, these appeals are 
allowed and the impugned judgments of both courts are set aside. The 
matter is remanded back to the Trial Court for a limited purpose to re-
CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND 
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16
write the judgment on the basis of existing judicial record within two 
months strictly in accordance with law and the guidelines given in 
Criminal Petition Nos. 1371 & 1651-L of 2016. The appellants/accused 
would be dealt with as under trial prisoners before the Trial Court, 
during pendency of the lis before Trial Court.  
 
CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 
10. 
 
In view of the order passed in the connected Criminal 
Appeals, these petitions have become infructuous and are disposed of 
accordingly.  
 
11. 
 
The above are the detailed reasons of our short order of 
even date.  
 
 
 
JUDGE 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the  
23rd of May, 2022 
Approved For Reporting 
Khurram