IN THE SUPREME COURT OF PAKISTAN 
 
 
 
 
 (Appellate Jurisdiction)  
 
Present:  
 
 
 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL  
MR. JUSTICE AMIN-UD-DIN KHAN 
 
Criminal Petitions No. 35-Q/2017 to 37-Q/2017 
(On appeal from the judgment dated 5.6.2017 passed by the High Court of 
Balochistan, Quetta in Crl.A.No.107/2014 and M.R.No.3/2014 and Crl. Acquittal 
AppealNo.122/2014). 
 
 
Abdul Wasay  
 
 
 
 
…In Crl.P.35-Q/17 
Abdul Shakoor  
 
 
 
 
…In Crl.P.36-Q/17 
Abdul Shakoor & another  
 
 
…In Crl.P.37-Q/17 
 
 
 
 
 
…Petitioners  
 
 
 
 
 
VERSUS  
 
The State 
 
 
 
 
…In Crl.P.35-Q/17 
Abdul Wasay & another   
 
…In Crl.P.36-Q/17 
Abdul Hadi & others 
 
 
…In Crl.P.37-Q/17 
 
 
…Respondents 
 
 
    
For the Petitioners: 
Mr. Liaqut Ali Tareen, ASC 
(In Cr.P.35-Q/17) 
 
Syed Rifaqat Hussain Shah, AOR 
 
For the Petitioners: 
Mr. Zahoor-ul-Haq Chishti, ASC 
(In Cr.P.36-Q & 37-Q/17)   
Mr. Mehmood A. Sheikh, AOR 
 
For State: 
Syed Baqir Shah, ASC (State Counsel) 
(In all cases) 
 
For the Complainant: 
Mr. Zahoor-ul-Haq Chishti, ASC 
(In Cr.P.35-Q/17)   
 
Mr. Mehmood A. Sheikh, AOR 
 
 
Date of Hearing:  
19.2.2021 
 
ORDER  
 
 
MAZHAR ALAM KHAN MIANKHEL, J-.   
 
Criminal Petition No. 35-Q of 2017 
 
 
The Petitioner-convict was booked in case FIR No.22/2012 
dated 18th May, 2012 registered under Sections 302, 147,148,149 of 
the Pakistan Penal Code (PPC) and under Section 337-A,D,F, of the 
Crl.P.35-Q/2017, etc 
2
Q&D Ordinance, Police Station, City-Chaman, District Killa Abdullah 
at Chaman alongwith his co-accused for the murder/qatl-e-amd of 
Najeebullah son of Abdul Shakoor and causing knife blows to the 
complainant-Abdul Shakoor and his brother Abdul Wadood. After 
investigation and a regular trial the Petitioner was convicted under 
Section 302 sub-Section (ii) of Q&D (as was described in the Qisas 
and Diyat Ordinance) and sentenced to death as Tazir and further to 
pay a compensation of Rs.200,000/- (two lac) under Section 544-A of 
Code of Criminal Procedure (Cr.P.C.) to the legal heirs of the deceased 
and in default thereof to further suffer one year S.I. The conviction of 
the Petitioner was also maintained in appeal by the High Court of 
Balochistan, Quetta vide its Judgment dated 5th June, 2017, 
however, his sentence of death was modified to life imprisonment and 
benefit under Section 382-B Cr.P.C. was also extended to him. 
Compensation under Section 544-A Cr.P.C. and sentence in default 
thereof was ordered to be maintained. The Petitioner through instant 
petition has sought grant of leave to appeal by this Court against the 
impugned Judgment dated 5th June, 2017. 
 
2. 
 
We have heard the learned counsel for Petitioner and the 
learned State Counsel assisted by learned counsel for the 
complainant. Perusal of the record reveals that the complainant 
alongwith his brother Abdul Wadood while going to Bazar on 18th 
May, 2012 for buying household articles were attacked by the 
Petitioner alongwith his co-accused at 8.00 AM in the vicinity of 
Police Station/Thana, ‘Levies Chaman’ District Killa Abdullah and the 
said matter was also reported vide FIR No.84/2012.  The 
complainant received injuries. The complainant was being taken to 
hospital by his brother Abdul Wadood and his son Najeebullah. When 
Crl.P.35-Q/2017, etc 
3
they reached outside the main gate of civil hospital Chaman, the 
accused party including the Petitioner once again attacked them. The 
Petitioner gave repeated churrri blows to Najeebullah who succumbed 
to the injuries at the spot, whereas the complainant and his brother 
Abdul Wadood received stab wound injuries at the hands of Abdul 
Rashid co-accused. Perusal of the record further reflects that the 
patrolling police reached at the spot during the occurrence and the 
Petitioner alongwith his acquitted co-accused Abdul Rashid, Abdul 
Hadi and Syed Ali were arrested at the spot alongwith their respective 
weapons of offence i.e. ‘Churri’ (P-7) and ‘Chaqu’ (P-9).  The same were 
taken into custody by the investigating officer vide recovery memo 
(Ex-P-5). PW-5 has not only confirmed the arrest of the accused at 
the spot but has also confirmed the recovery of their respective above 
noted weapons of offence. We have noted that it is a promptly lodged 
report and the Petitioner alongwith his co-accused were arrested at 
the spot. The case of the prosecution is fully supported by the two 
injured PWs namely Abdul Shakoor (PW-1) and Abdul Wadood (PW-
2); Dr. Rafiullah appeared as PW-6 who confirmed the death of the 
deceased, Najeebullah by issuing the MLC (Ex-P-6). (In this area, 
postmortems normally are not conducted for the reasons best known to 
the local administration as well as people of the locality). The MLC 
issued by the Doctor fully supports the story of the prosecution 
regarding murder of Najeebullah (deceased). The trial Court and the 
High Court after proper appraisal of the evidence have recorded 
conviction of the Petitioner. We have also gone through the entire 
evidence and the material available on the record with the assistance 
of the learned counsel for the parties and found nothing to interfere 
with the conviction recorded by the courts below. Since the motive 
alleged by the prosecution was not proved, so, the benefit to that 
Crl.P.35-Q/2017, etc 
4
extent i.e. conversion of death sentence to life imprisonment has 
already been extended to the Petitioner in his appeal before the High 
Court. The Petitioner simply denied the commission of offence but he 
was also unable to give plausible explanation regarding his innocence 
in his statement under Section 340(2) Cr.P.C., rather he has 
admitted his arrest in the hospital but with a different narration but 
that too was not established.  
 
3. 
 
The Petitioner alone has been charged for committing 
murder of the deceased Najeebullah, whereas the other co-accused 
have been charged for causing injuries to Complainant (PW-1) and 
Abdul Wadood (PW-2). The prosecution has fully proved its case 
against the Petitioner.  
 
 
 
We after proper appraisal of evidence see no merits in 
this petition which is dismissed and leave refused.  
 
 
Criminal Petition No. 36-Q/2017: 
 
 
 
Since the death sentence awarded to the convict - Abdul 
Wasay/Respondent No.1 was converted to life imprisonment for want 
of proof of motive, alleged by the prosecution, so by considering the 
same as a mitigating circumstance, sentence awarded to the 
Petitioner was modified. The learned counsel for the complainant was 
unable to convince us for taking yet another view of the matter for 
enhancement of sentence of convict, Abdul Wasay/Respondent No.1; 
hence, this petition being meritless is dismissed and leave refused.  
 
Criminal Petition No. 37-Q/2017: 
 
 
Respondent No. 3/Abdul Rashid, accused was charged for 
causing knife blows to the complainant and Abdul Wadood but no 
medical evidence of the said injuries from proper source was brought 
Crl.P.35-Q/2017, etc 
5
on the record. The investigation officer produced their medical 
certificates but the same were not considered and relied upon by the 
trial court to record his conviction. Yet another aspect of the case was 
also helpful in his acquittal as the complainant had also received 
injuries in the earlier round of occurrence (separately reported vide 
FIR No.84/2012 of the same date) and in absence of specific medical 
report, it was difficult for the trial court to determine the injuries to 
have been inflicted in the present occurrence, whereas Respondent 
No. 1 and 2/ Abdul Hadi and Syed Ali co-accused were charged for 
giving kicks and fists blows to the complainant party, but the 
prosecution has failed to prove the case against them, hence this 
petition, too, being meritless, is dismissed as such and leave refused.  
 
 
 
 
We have observed that there exist some confusion and 
misconception of law regarding Chapter-XVI (“Offences Affecting the 
Human Body”) of the Pakistan Penal Code, 1860 (“PPC”) and the Code 
of Criminal Procedure, 1898 (“Cr.P.C.”) in the legal and judicial 
system in the Province of Balochistan, dealing with the matters noted 
above as they still use the repealed provisions of law. For the first 
time, the provisions relating to Qisas and Diyat were introduced in 
PPC and Cr.P.C. by the Criminal Law (Second Amendment) 
Ordinance, 1990 (Ordinance VII of 1990) commonly known as Qisas 
& Diayt Ordinance. This Ordinance though was repealed by a 
subsequent Ordinance, i.e. the Criminal Law (Second Amendment) 
Ordinance, 1991 (Ordinance I of 1991) but the same provisions were 
also re-enacted in the PPC and Cr.P.C. through the same Ordinance. 
This process of repeal and re-enactment continued till Ordinance 
CXIII of 1996 and finally before expiry of Ordinance CXIII of 1996, the 
provisions of law relating to Qisas and Diyat were permanently made 
Crl.P.35-Q/2017, etc 
6
part and parcel of Pakistan Penal Code, 1860 (PPC) and Code of 
Criminal Procedure, 1898 (Cr.P.C.) vide Criminal Law (Amendment) 
Act, 1997 (Act II of 1997). The Chapter XVI was accordingly made 
part of Pakistan Penal Code (PPC) applicable throughout Pakistan. 
Mentioning of such offences under any of such Ordinances (being 
repealed one) instead of PPC/Cr.P.C. is not only unlawful but a grave 
misconception of law. All the concerned Departments i.e. LAW and 
PROSECUTION; (i) Secretary, Ministry of Law & Justice, Govt. of 
Pakistan, Islamabad; (ii) Secretary, Law and Parliamentary Affairs 
Department, Govt. of Balochistan, Quetta; and (iii) Secretary, Prosecution 
Department, Govt. of Balochistan, Quetta and the Courts should 
rectify this mistake and should also be vigilant in this regard in 
future. Copies of this Order be accordingly sent to all the concerned.  
  
 
 
Judge  
 
 
 
 
Judge  
Islamabad,  
19th February, 2021 
Sarfraz /-  
‘APPROVED FOR REPORTING’