IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
(On appeal against the judgment dated 08.11.2016 passed by the Lahore High Court, 
Bahawalpur Bench in Criminal Appeal Nos. 470 & 471 of 2013 and Murder Reference 
No. 51 of 2013) 
 
Bashir Ahmed and Munir Ahmed 
(In 
Cr.P. 
1371/2016 
& 
Cr.M.A. 1704/2017) 
Muhammad Ilyas  
 
 
 
(In Cr.P. 1651-L/2016) 
… Petitioners/Applicants 
 
VERSUS 
 
The State  
(In 
Cr.P. 
1371/2016 
& 
Cr.M.A. 1704/2017) 
Munir Ahmed  
 
 
 
 
(In Cr.P. 1651-L/2016) 
… Respondents 
 
For the Petitioner:  
Syed Asim Ali Bukhari, ASC 
 
 
 
 
(In Cr.P. 1371/2016 & Cr.M.A. 1704/2017) 
 
 
 
 
 
Ch. Ghulam Murtaza Khan, ASC 
 
 
 
 
(In Cr.P. 1651-L/2016) 
 
For the State: 
 
Mirza Abid Majeed, DPG, Punjab 
 
Date of Hearing:  
26.11.2020 
 
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 @ 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(ii), 34/149 PPC 
at Police Station Marot, District Bahawalnagar for committing murder 
of Muhammad Ishaq, brother of the complainant, and for causing 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
2
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 @ 
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 @ 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 @ 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 @ 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) PPC 
and he was sentenced to death. He was also directed to pay 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
3
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 @ Shada was convicted by the Trial Court under Section 
337-F(vi) PPC 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(ii) 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(ii) PPC 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. 
 
Cr. 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 @ 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. 
 
Cr. 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
4
was maintained by the High Court, keeping in view the sentence 
inflicted to Munir Ahmed under Section 302(b) PPC and sentence 
inflicted to Bashir @ Shada under Section 337-F(vi), 337-L(ii) and 337-
L(iii) PPC 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) PPC whereas Bashir @ Shada is convicted according to his 
individual role, both the sentences in all eventuality are in consonance 
with the spirit of Section 302/324/34 PPC (common intention) or if the 
number of accused are five or more under Section 302/148/149 PPC 
(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;  
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
5
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 am 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 u/s 337-
F(v)/337-L(ii) read with Section 149 PPC which is within the 
cognizance of this court.  
 
 
SECONDLY: 
That on the same day and place at 11.30 am 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 u/s 302 read with Section 34 PPC 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) PPC and Bashir @ Shada under Sections 337-
F(vi) &337-L(ii) PPC as narrated above. This judgment was upheld by 
the High Court. For the elaborative analysis qua the application of 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
6
provision of Section 302 PPC, it would be advantageous to reproduce 
Section 300 PPC wherein ‘qatl-e-amd’, has been defined as under:- 
 
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
7
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: - 
(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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
8
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 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
9
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 of the cases it 
is seen to be something which incites immediate anger or "passion", 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
10
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
11
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 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
12
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 
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
13
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
14
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.  
 
16. 
 
As far as the matter before us is concerned, 
elaborate 
findings 
are 
clearly 
disclosed 
above. 
As 
a 
consequence, we convert Criminal Petition Nos. 1371 & 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.  
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
15
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. 
 
 
 
 
 
 
JUDGE 
 
JUDGE 
I am not in agreement with the findings of 
my learned brother for which I have 
recorded my own findings separately. 
 
JUDGE 
Islamabad, the  
26th of November, 2020 
Approved For Reporting 
Khurram 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
16
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
17
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
18
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
19
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
20
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 
F.I.R. 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
21
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 S C M R 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. 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
22
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 S C M R 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
23
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….  
 
(P L D 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
24
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. 
…… 
  
(P L D 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 S C M R 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
25
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 section 307/34, P. P. C. on 
four counts.....  
...... 
 
 
(P L D 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 S C M R 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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
26
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 
Vs. 
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. 
……” 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
27
 
 
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 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
28
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.     
  
 
Judge 
 
CRIMINAL PETITION NOS. 1371 & 1651-L OF 2016 AND 
CRIMINAL MISCELLANEOUS APPLICATION NO. 1704 OF 2017 
29
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.  
 
 
JUDGE 
 
 
JUDGE 
 
 
JUDGE