IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR, JUSTICE MUNIB AKHTAR
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI
CRIMINAL PETITION NO. 1802-1 OF 2017
(On appeal against the judgment dated 3110.2017 passed by the
Lahore High Court, Lahore in Murder Reference No. 406/2015 &
Criminal Appeal No. 2129/2015)
Sajjad Hussain
Petitioner
VERSUS
The State etc
Respondents
For the Petitioner: 
Sardar Muhammad Latif Khan Khosa, Sr. ASC
For the State: Mirza Muhammad Usman, DPG
Date of Hearing: 
21.04.2022
JUDGMENT
SAYYED MAZAHAR All AKBAR NAQVI. J.- Petitioner Sajjad Hussain along
with five co-accused was tried by the learned Additional Sessions Judge,
Khushab pursuant to a private complaint under Sections
302/324/148/149/109 PPC in FIR No. 89 dated 21.05.2012 under Sections
302/324/148/149 PPC at Police Station Katha Saghral, District Khushab for
committing murder of Noor Hussain and Chulam Abbas, brother and
cousin of the complainant and for causing injuries to one Sabir Hussain.
The learned Trial Court vide its judgment dated 29.10.2015 convicted the
petitioner under Section 302(b) PPC and sentenced him to death on two
counts. He was also directed to pay Rs.10,00,000/- as compensation to the
legal heirs of each deceased or in default whereof to further undergo SI for
six months. The co-accused Rab Nawaz was acquitted of the charge.
However, the remaining co-accused were convicted under Section 302(b)
PPC and were sentenced to imprisonment for life. In appeal, the learned
High Court while acquitting the co-accused and while maintaining the
CRIMINAL PETITION NO, 1802-1 OF 2017 
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conviction of the petitioner under Section 302(b) PPC, altered the
sentence of death into imprisonment for life on two counts. The amount
of compensation and the sentence in default whereof was maintained.
Both the sentences were ordered to run concurrently with benefit of
Section 382-B Cr.P.C.
2. The prosecution story as narrated by the complainant in the
private complaint and as given in the judgment of the learned Trial Court
reads as under:-
"4. Being dis-satisfied from the Investigation, the complainant
filed the instant private complaint Ex.PM on 17.06,2013, wherein he
stated that he is resident of Katha Saghral. Ghulam Abbas deceased
is his real brother and Noor Hussain deceased is his cousin/Khala
Zad. The accused lmdad Hussain and Sajjad Hussain are real brothers
inter Se and are real nephew/Bhatija of accused Muhammad All who
is also father-in-law of accused lmdad Hussain. The accused
Muhammad Saleem and Muhammad Karim are real brothers inter
se and are real uncles of accused lmdad Hussain and Sajjad Hussain.
The accused Muhammad Munir, Saleem and Karim are uncles and
cousins/Phophi zad inter se. Accused Muhammad Naeem is
nephew/Shanja of accused Karim and Saleem who is also cousin /
Khala Zad of accused Imdad Hussain and Sajjad, in this way all the
accused are close relatives inter se. On 225.2012 when the
complainant alongwith his brother Khadim Hussain, Ghaus
Muhammad 5/0 Mian Muhammad caste Jangla, Muhammad Sarfraz
s/o Fateh Sher caste Chadhar resident of Katha Saghral were present
on Katha Adda and at about 5.00 p.m his brother Noor Hussain,
Ghulam Abbas s/o Allah Ditta cousin/Khala Zad came on car No.
1165/BDIK Model 1982 driven by Rab Nawaz s/o Cost Muhammad
caste Ohool resident of Katha Saghral who was driver of the car
came on Adda and remained stopped with them for some time. At
5.30 p.m. Noor Hussain and Ghulam Abbas took the vehicle and
moved towards their house. When they reached a few paces ahead
towards north in front of Hassan Iron Store, suddenly accused lmdad
Hussain (since P0), Sajjad Hussain both sons of Wali Muhammad,
Muhammad Au s/o Sher Muhammad caste Snadha, Muhammad
Naeem s/c Muhammad Munir caste Chadhar r/o Katha Saghral, all
armed with Kalashnikovs came from left side of the vehicle. lmdad
Hussain (since P0) discharged a burst of his Kalashnikov which shot
hit on front side of neck, chest and face of Ghulam Abbas deceased.
The second burst was discharged by Sajjad Hussain accused which
shots hit Noor Hussain on front of his chest and both the arms.
Muhammad Ali and Muhammad Naeem made indiscriminate firing
which shots hit on left side door and pillar of vehicle. In the
meanwhile accused Muhammad Karim, Muhammad Saleem sons of
Malook Khan, Muhammad Munir son of Mureed Hussain caste
Chadhar residents of Katha Saghral armed with Kalashnikovs came
from right side of the vehicle. They also made straight firing on Noor
Hussain and Ghulam Abbas which shots hit on different parts of the
CRIMINAL PETITION NO. 1802-L OF 2017 
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deceased persons while passing through the body of the vehicle.
Due to the firing of accused, one Sabir Hussain 5/0 Wall Muhammad
caste Dhool resident of Katha Saghral had sustained injuries from
the hands of the accused. The marks of fire shots are also present on
the shutter of adjacent shop to that of "Hassan Iron Store". The
driver Rab Nawaz remained safe luckily. Noor Hussain and Ghulam
Abbas succumbed to the injuries in the vehicle.
5.
Motive behind the occurrence is that about 02 years before,
Ghulam Abbas deceased had committed murder of Wali
Muhammad, the father of lmdad Hussain accused (since P.0) but
subsequently a compromise was effected. The accused lmdad
Hussain etc kept the grudge in their heart and due to that grudge,
they committed Qatl-e-Amd of Noor Hussain and Ghulam Abbas and
they also attempted on the life of Sabir Hussain, who sustained
injuries in the occurrence."
3.
After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. In order to prove its case the
prosecution produced as many as 11 witnesses and 8 CWs. In his
statement recorded under Section 342 Cr.P.C, the petitioner pleaded his
innocence and refuted all the allegations leveled against him. However, he
did not make his statement on oath under Section 340(2) Cr.P.0 in
disproof of allegations leveled against him. He also did not produce any
evidence in his defence.
4.
At the very outset, learned counsel for the petitioner argued
that there are glaring contradictions and dishonest improvements in the
statements of the prosecution witnesses of the ocular account, which have
escaped notice of the courts below. Contends that the prosecution
witnesses of ocular account are chance/related witnesses and they were
also inimical towards the petitioner. Contends that on the same set of
evidence, the co-accused of the petitioner, who were ascribed the similar
role, have been acquitted of the charge whereas the petitioner has been
convicted. Contends that the petitioner was declared innocent by the
police in the report under Section 173 Cr.P.0 to the extent of any overt act
during occurrence, however, he was ascribed the role of abetment but the
same has also not been proved. Contends that no recovery has been
affected from the petitioner and there is no incriminating evidence against
CRIMINAL PETITION NO. 1802-L OF 2017 
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the petitioner to distinguish his case from that of the acquitted co-
accused. Contends that the prosecution has miserably failed to prove its
case against the petitioner beyond reasonable doubt, therefore, there was
no justification to convict the petitioner. Lastly contends that the
impugned judgment is based upon contradictory and discrepant evidence
and the same cannot be made basis to sustain conviction as per law and as
such the same requires interference to set aside in the interest of justice.
S. On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the evidence led by the
prosecution in the shape of ocular version duly supported by medical
evidence is sufficient to sustain the conviction of the petitioner, therefore,
he does not deserve any leniency by this Court.
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
As per the prosecution story, when both the deceased
Ghulam Abbas and Noor Hussain were moving towards their house via car
No. 1165-BDIK, suddenly petitioner along with co-accused lmdad Hussain,
Muhammad Ali, Muhammad Naeem, all armed with Kalashnikovs came
from left side of the vehicle. The petitioner fired a burst shot which hit
Noor Hussain deceased on front of his chest and both the arms. Co-
accused lmdad Hussain, who has reportedly been murdered in Police
encounter, also fired a burst with Kalashnikov, which hit on front side of
neck, chest and face of Ghulam Abbas deceased. In the meanwhile
accused Muhammad Karim, Muhammad Saleem & Muhammad Munir
armed with Kalashnikovs came from right side of the vehicle and made
straight firing on Noor Hussain and Ghulam Abbas, which shots hit on
different parts of the deceased persons while passing through the body of
the vehicle. Although the petitioner has been assigned a specific role of
firing at the chest and arms of the deceased Noor Hussain, however, the
perusal of evidence suggests that the other co-accused namely
Muhammad Karim, Muhammad Sateem and Muhammad Munir had also
made straight fires on the deceased from right side of the car, which shots
CRIMINAL PETITION NO. 1802-L OF 2017 
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hit on different parts of the body of deceased persons. However, the
locale of the injuries sustained by the deceased due to the firing made by
these three co-accused has not been described. We have noted that
according to postmortem report, the deceased Noor Hussain sustained as
many as 14 injuries on his body whereas S were on his chest. There is
every possibility that the fire shots made by the above-named three co-
accused would have also hit the chest of the deceased. However, these co-
accused along with all other co-accused have been acquitted of the charge
either by the learned Trial Court through a separate trial or by the High
Court through the impugned judgment. There is also no denying the fact
that the Police in the report under Section 173 Cr.P.C. had not found the
petitioner involved in the occurrence and he was only found involved to
the extent of communication with co-accused lmdad Hussain via mobile
phone, who happens to be real brother of the petitioner. However,
neither the mobile phone nor Call Data Record was placed on record.
Furthermore, no memo of recovery of mobile phone was ever made. So
far as the allegation of abetment against the petitioner is concerned,
perusal of Section 107 PPC reveals that three ingredients are essential to
establish/charge any person as conspirator i.e. (i) instigation, (ii)
engagement with co-accused, and (iii) intentional aid qua the act or
omission for the purpose of completion of said abetment. However, all
these three ingredients of Section 107 PPC are squarely missing from the
record. The weapon of offence i.e. Kalashnikove has also not been
recovered from the petitioner. A bare perusal of the evidence available on
record shows that there is no incriminating evidence against the petitioner
to distinguish his case from that of the co-accused since acquitted. In
these circumstances, a shadow of doubt in the prosecution case has been
created, benefit of which must be given to the petitioner. It is settled law
that a single circumstance creating reasonable doubt in a prudent mind
about the guilt of accused makes him entitled to its benefits, not as a
matter of grace and concession but as a matter of right. The conviction
must be based on unimpeachable, trustworthy and reliable evidence. Any
 doubt arising in prosecution case is to be resolved in favour of the
CRIMINAL PETITION NO. 18021. OF 2017
accused. However, as discussed above, in the present case the prosecution
has failed to prove its case beyond any reasonable shadow of doubt.
7. for what has been discussed above, this petition is
converted into appeal and allowed and the impugned judgment to the
extent of the petitioner is set aside. The petitioner is ordered to be
acquitted of the charge He shall be released from jail forthwith unless
detained in any other case. The above are the detailed reasons of our
short order of even date.
Islamabad, the
21st of April, 2022
Approved For Reporting
- 
IT