Ijaz Ali Vs The State & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No. 99-M/2025 Ijaz Ali son of Jehan Bahadar Khan...........................(Appellant)

V/S

State & another. .............................................. (Respondents) Present: Mr. Danyal Chamkani, ASC, for appellant/ accused.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Safdar Khan, AHC, for respondent/ complainant.

Cr.R No. 67-M/2025 Mst. Shama Bibi D/O Bakhti Rahman ......................(Petitioner)

V/S

Ijaz Ali & another...... ........................................(Respondents) Present: Mr. Safdar Khan, AHC, for petitioner/ complainant.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Danyal Chamkani, ASC, for respondent/ accused.

Dates of hearing: 05.8.2025

JUDGMENT

SALAH-UD-DIN, J.- Through instant

criminal appeal preferred U/S 410 of Code of Criminal Procedure, 1898 (“Cr.P.C”), appellant namely Ijaz Ali has called in question judgment of his conviction and sentence dated 11.4.2025, passed by learned Additional Sessions Judge/I.Z.Q, Dir Upper at Wari, rendered in case FIR No. 454 dated 13.11.2023, registered U/Ss 302,324,452,337-F(i), 337-A Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

(ii),337-D,34 PPC at P.S Wari, District Dir Upper, whereby on conclusion of a full-fledged trial, he was convicted and sentenced as follows: -

(i)U/S 302 (b) PPC to life imprisonment, along with compensation of Rs. 200,000/- (two hundred thousand), payable to legal heirs of the deceased U/S 544-A Cr.P.C. In default of payment of compensation, appellant shall further undergo six months, simple imprisonment. Amount of compensation shall be recoverable as arrears of land revenue from person & estate of appellant.

(ii)U/S 324 PPC to 05 years rigorous imprisonment, along with fine of Rs. 50,000/- (fifty thousand), or in default thereof to suffer six months, simple imprisonment.

(iii)U/S 337-A (ii) PPC to 03 years rigorous imprisonment as Ta’zir, along with 05 % Diyat in the form of Arsh, payable to injured/ complainant Mst. Shama Bibi. Till realization of payment of Arsh, appellant shall be kept in jail to suffer simple imprisonment within the domain of 337-X (2)

PPC.

(iv)U/S 337-F (i) PPC to one-year rigorous imprisonment as Ta’zir, along with Daman of Rs. 20,000/-, payable to injured/ complainant Mst. Shama Bibi. Till realization of payment of Daman, appellant shall be kept in jail to suffer simple imprisonment U/S 337-Y

(2) PPC.

(v)U/S 337-D PPC to 05 years rigorous imprisonment as Ta’zir, along with Diyat in the form of Arsh to the extent of 1/3rd, payable to injured/ complainant Mst. Shamim Bibi. Till realization of payment of Arsh, appellant shall be kept in jail to suffer Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

simple imprisonment within the domain of 337-X (2) PPC.

(vi)U/S 452 PPC to 05 years rigorous imprisonment as Ta’zir, along with payment of fine of Rs.

20,000/-, or in default thereof to suffer six months, simple imprisonment.

(vii)All the aforementioned sentences were ordered to run concurrently, however, appellant was extended benefit of section 382-B, Cr.P.C.

(viii)Absconding co-accused namely Naseer was declared as proclaimed offender and high ups of police department of District Dir Upper were directed to issue a perpetual warrant of arrest against absconding accused and his name was also ordered to be incorporated in the register of “proclaimed offenders”.

(underline supplied)

2.There was also a connected

criminal revision bearing No. 67-M of 2025 filed by petitioner/complainant namely Mst.

Shama Bibi for enhancement of conviction and sentences awarded to accused/respondent.

3.Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record gone through with their able assistance.

4.As per contents of ibid FIR registered on the strength of DD No. 48 dated 13.11.2023 local police received prior information about an offence of murder, which had taken place in the vicinity of village Kar Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

Kanbaj, therefore, they rushed to Wari hospital.

In the hospital, one of the injured namely Mst.

Shama Bibi, complainant of the instant case reported the matter to local police in terms that they had a dispute with accused-party Ijaz etc.

over an issue of water channel/link road and for settlement of said matter many Jirga were held, however, of no avail. On the fateful day, she along with her deceased father namely Bakhti Rahman, injured sister namely Mst. Shamim Bibi and mother namely Mst. Bachayai Taj Bibi were present inside the room of their house. At 16:30 hours, the accused namely Ijaz (appellant herein) and Naseer (absconding accused), while being duly equipped with firearms entered into their house and started indiscriminate firing at them. Due to firing of accused Naseer, her father got hit on different parts of his body and died on the spot. Likewise, from firing of accused Naseer and Ijaz, complainant namely Mst. Shama Bibi got injured on palms of her both hands as well as wrist. Similarly, from firing of the appellant Ijaz, sister of the complainant namely Mst. Shamim Bibi sustained injuries on right side of her belly as Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

well as skull. Motive qua commission of offence was disclosed to be a dispute over water channel/road. In view of report of the complainant “Murasila” (Ex. PW-1/1) which culminated into ibid FIR (Ex. PW-5/1) registered against present appellant and other co-accused at P.S concerned.

5.In criminal cases, “crime scene” is always considered to be of paramount importance in terms of its location and availability of eyewitnesses, if any, or as to whether it is a public place or an abandoned vicinity. In context of the case in hand, as evident from contents of “Murasila” followed by ibid FIR, the venue of crime is the house of complainant-party. As per contents of FIR, it was present appellant namely Ijaz Khan, who in the company of his absconding co-accused namely Naseer, while being duly armed with firearms entered in the house of complainant- party and made resort to indiscriminate firing at them. No doubt, effective role of firing upon deceased father of the complainant namely Bakhti Rahman has been attributed to Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

absconding co-accused namely Naseer and present appellant has been saddled for causing injuries to the injured PWs i.e. the complainant namely Mst. Shama Bibi and her sister Mst. Shamim Bibi. In first episode of firing, it was present appellant who in the company of his absconding co-accused Naseer made firing upon the complainant namely Mst. Shama Bibi, which resulted into causing injuries on her both palms and writ. In second episode of firing, appellant has singularly been charged for causing firearms injuries on the vital parts of body of injured PW namely Shamim Bibi.

6.On her own turn, complainant of the instant case namely Mst. Shama Bibi appeared in the witness-box as PW-1. In her examination-in-chief, she almost reiterated the same facts as was part & parcel of her initial report in the shape of “Murasila” followed by ibid FIR. She was cross-examined at a substantial length by learned counsel for defence, however, probative worth of her testimony qua presence of both the rival Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

parties on the spot i.e. house of the complainant-party, could not be shattered in any manner. Same is the case with testimony of other injured PW namely Mst. Shamim Bibi, she was examined in Court as PW-2.

During the course of her statement, PW-2 has specifically charged present appellant qua his effective role of firing upon her person as well as her sister Mst. Shama Bibi. No doubt, this PW was also cross-examined at considerable length, however, her testimony too, qua presence of both the parties, in particular, appellant at the venue of crime, could not be shattered. Both the aforesaid PWs were cross- examined by learned counsel for defence, however, nothing beneficial could be attracted from their mouths in favour of present appellant, disputing his very presence on the spot i.e. house of the complainant-party.

Subject occurrence has taken place in broad daylight and both the parties being co- villagers were well familiar with each other, hence, there was no apprehension of mistaken identity or substitution of accused by Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

complainant or other eye-witnesses. Neither any dishonest improvements appear in their statements nor the story advanced by them appears to be unnatural or concocted-one, as such, their testimonies have remained un- impeached or un-shattered despite taxing and searching cross-examination by learned defence counsel. Hon’ble Supreme Court of Pakistan in its judgment rendered in case titled “Aurangzeb v/s State” reported as 2020 SCMR 612, while relying upon eye- witness account of occurrence has observed: - “Prosecution case is primarily hinged upon ocular account furnished by Haqnawaz (PW-1) and Munir Hussain (PW-2); former is father of the deceased whereas the latter is former's collateral; their close relationship notwithstanding, both of them have plausibly explained purpose of their presence at the crime scene; they had assembled to watch a Kabaddi match, annually held by tradition at a nearby mausoleum. To the extent of role assigned to the petitioner in the crime report, they remained consistent and straightforward; their failure qua the co-accused and complainant's recourse to a supplementary statement in order to nominate unknown assailants, though an embarrassing failure for the prosecution, however, does not tremor its mainstay. Assembly of the accused in the stated numbers, in a festivity, is a possible scenario; they appear to have been let off by the learned trial Court out of abundant caution, an option found by us most expedient in circumstances; their departure does not cast away the case against the petitioner, singularly blamed for the crime.”

Similar observations have also been

recorded by Hon’ble apex Court in case titled Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

“Muhammad Waris v/s State” reported as “2008 SCMR 784”, in the following words;

“The explanation offered by the said two eye- witnesses regarding their presence at the place of occurrence at the relevant time had been accepted by the two learned Courts and no reason exists which could persuade us to hold otherwise. Both these P.Ws. were thus, natural and independent witnesses of the occurrence who had been rightly delivered by the two learned Courts. Corroboration is only rule of caution and not a rule of law and if the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration.”

7.No doubt, there were certain

minor contradictions in statements of PW-1 and PW-2, however, it is equally important to note that these eye-witnesses have been examined in Court after more than seven months of the tragic incident and occurring of such minor contradictions were quite natural. When witnesses were examined after more than seven months of the occurrence a photographic narration of the occurrence cannot be expected from them. Hon’ble Supreme Court of Pakistan in its judgment rendered in case titled “Khadim Hussain v/s State” reported as PLD 2010 Supreme Court 669 has held that creeping of minor contradictions in testimony of PWs, with passage of time, have been natural and same could be ignored. Relevant part of observation Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

of august Court is reproduced hereunder for ready reference: -

"We have also adverted to the contention of learned ASC that various contradictions in the statements of the prosecution witnesses have not been taken into consideration causing serious prejudice against the appellant. It has been held time and again by this Court that minor contradictions do creep in with the passage of time and can be ignored safely.”

Similarly, in case titled

“Muhammad Ilyas v/s State” reported as 2011 SCMR 460, Hon’ble Supreme Court has followed the aforesaid rational of law by observing as under: -

“Contradictions which are not grave in nature can be ignored safely as minor contradictions creep in with passage of time. Merely on the basis of contradictions, statement of a prosecution witness cannot be discarded if corroborated by other incriminating material.”

Further reliance in this respect

may also be placed on judgment of Hon’ble apex Court rendered in case titled “Zulfiqar Ahmad v/s State” reported as 2011 SCMR

8.Learned counsel for appellant has also an objection to ocular-account furnished by eye-witnesses on the ground of their close relationship with the deceased i.e. being their real daughters. There is no denial of the fact that complainant and other alleged eyewitness closely Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

related to the deceased. However, mere relationship between witnesses and deceased would not be sufficient to damage their evidence altogether. It is a well-recognized principle of criminal administration of justice that relationship by itself is no ground to discard and discredit testimony of eye-witnesses unless they are shown to be partisan and interested witnesses.

Rel: “Abdur Rauf Vs. The State and another” (2003 SCMR 522). It is an intrinsic value of a statement of a prosecution witness which is to be taken into account and not his/her relationship. It is not a rule of thumb that an interested or related witness will always tell lie and independent witness truth rather testimony of a witness in each case is required to be adjudged in light of its own facts and circumstances. If it is established on record that a witness had a motive to implicate an accused person falsely in a case, then in such situation, independent corroboration may be sought from other evidence. In the present case, there is nothing on record to suggest any previous blood feud or other bitterness of serious nature between the parties, except motive over an issue of water channel/road, hence, eye-witnesses Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

had no motive for false implication of present appellant. Reliance is placed on the judgment of apex Court rendered in case titled “Amal Sherin & another v/s State” reported as PLD 2004 Supreme Court 371, whereby it was held that “mere relationship of the witness with the deceased would not detract from their veracity, who had absolutely no motive of their own to involve the accused.” Similarly, same rational was reiterated by apex Court in case titled “Khalid v/s State” reported as 2024 SCMR 1474 by observing that in absence of any ulterior motive/animus for false implication of an accused, the confidence inspiring testimony of an eye-witness, whose presence with the deceased at the time and place of occurrence is established, cannot be discarded merely due to his relationship with the deceased.

Further reliance, in this regard, may be placed on the dicta expounded by apex Court in case titled “Zakir Khan and others Vs. The State” reported as 1995 SCMR 1793, in case titled “Salah-ud-Din & another v/s The State” reported as 2018 P Cr. LJ 1297 and case titled Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

“Muhammad Umar v/s The State” reported as 2022 P Cr. LJ 695.

In light of ratio-decidendi

expounded in the aforesaid judgments of various Courts, the ocular-account furnished by PW-1 and PW-2, respectively cannot be discarded on the sole ground of their close relationship with the deceased, when otherwise they appear to be truthful witnesses.

9.Medical evidence of the injured PWs i.e. Mst. Shama Bibi and Mst. Shamim Bibi is in line with the version of prosecution.

As per medico-legal report of the complainant, Ex. PW-10/1, the injuries found on the person of complainant were opined by the doctor to be that of firearm, with the only exception of injury No. 1, which was probably a blunt injury. Likewise, medico-legal report of injured Mst. Shamim Bibi in the form of Ex. PW-10/2 was indicative of the fact that the injuries on her person have been caused through bullets/pellets. Prosecution examined Dr. Shagufta as PW-10. She deposed in her cross-examination as under: -

Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

ےک1 ریمے امرہاہن راےئ ےکاطمقب رجموہح امسمۃ عمش یب یب ےک زمخ ربمن شی ت ےس القح وہےئ ےھت۔ ریمے روپرٹ ںیم العوہ اقبای زامخت اہحلس آ شی ت یک ونتیع رجموہح ےک ےنہک رپ وتسپل درج دشہ ےہ۔ ذموکرہ از اہحلس آ "ازوخداہکےہہکہیااسنینیطلغاکاشاسخہنےہ۔ In her cross-examination, she

tried to cover up her mistake via mentioning of the weapon of offence i.e. pistol by terming it to be a human error, nevertheless, medical evidence furnished in the case in hand was in complete conformity with the ocular-account furnished by both the PWs. Even otherwise, in view of these injuries on persons of injured PWs, there was no justifiable reason for them to charge present appellant falsely or for that matter to substitute him with real culprits.

Hon’ble Supreme Court in case tiled “Muhammad Iqbal Vs. State” reported as PLD 2001 S.C 222 has held as under: - “That in murder cases falling under section 302, P.P.C. substitution of an accused, who is actually involved in the commission of the crime, is a rare phenomenon in this country particularly in an incident in which single accused was involved by nominating him in the F.I.R. from the very beginning.”

Though, it is not a rule of thumb

that an injured person will always tell nothing but a whole truth, however, testimony of an injured person cannot easily be discarded on Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

sole plea that he/she is interested in conviction of accused. Testimony of such witness is required to be adjudged with a judicious and independent mind in light of attending circumstances of each and every case. If found honest and confidence inspiring, then statement of an injured person can safely be considered against an accused person without any hesitation or jiggle of mind. Thus, presence of injured PWs on the spot of occurrence i.e. house of the complainant- party, in view of stamp of injuries on their persons is established, being natural, confidence inspiring and in conformity with ocular-account furnished by them. Reliance is also placed on judgment of apex Court rendered in case titled “Rooh Ullah & another v/s State & others” reported as 2022 SCMR 888, whereby, in respect of matter-in- issue, it was held as under: -

“No doubt, injuries on the person of a witness are not a passport into the realm of truth, however, the learned counsel has not been able to point out even a single circumstance to suspect testimony of Azam Tariq PW. Incident, a daylight affair, was reported with a remarkable promptitude followed by examination of the injured as well as autopsy, circumstances that cumulatively exclude possibility of consultations or deliberations.”

Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

10.Circumstantial evidence in the form of blood-stained earth and a crime empty of 12-bore from the spot as well as blood- stained garments of the injured PWs, providing getting added vigor and strength to the case of prosecution. Hence, circumstantial evidence has rightly been believed by learned trial Court qua prima facie guilt of appellant.

11.As a result of accumulative effect of evidence of prosecution, this Court has reached to a conclusion that appellant has rightly been found guilty of commission of offence, however, his sentence of life imprisonment requires a rethinking. It is part of record and as vehemently argued by learned counsel for appellant during the course of his arguments that the effective role of firing upon the deceased Bakhti Rahman, father of the complainant has been attributed to absconding co-accused Naseer and present appellant has only been charged for causing injuries to the injured PWs i.e. Mst. Shama Bibi and Mst.

Shamim Bibi. It is also not discernable from evidence of prosecution that why the accused- party including present appellant was so Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

desperate and annoyed to attack the house of complainant-party and made resort to indiscriminate firing which resulted into death of one innocent person and causing firearm injuries to the other injured PWs. Though, it was deposed by complainant in her initial report that they had dispute with Ijaz etc. over water channel/link road and in respect of said issue many jirga were held but of no avail, however, the entire evidence of prosecution is silent regarding the fact that what prompted the accused-party on the day of occurrence to make murderous assault upon the house of complainant-party. Even otherwise, prosecution has not been able to produce not even single Jirga member in support of their alleged motive, therefore, on all counts, motive part of the case is shrouded in mystery. Though, it was alleged by complainant that it was present appellant who in the company of his absconding co-accused namely Naseer made murderous assault upon the lives of the complainant inside the premises of their own house, however, complainant failed to specify the exact weapon of offence allegedly used by Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

the appellant at the time of commission of offence, rather, she has used a general term i.e.

“firearm” ()اسلحہ آتشین, therefore, this element also create doubt about the exact mode and manner of the occurrence. It is also part of record that the other important witnesses of the occurrence namely Mst. Bachayai Taj Bibi and Sudais were abandoned by the prosecution without any rhyme and reason, therefore, an adverse inference under Article 129-G of Qanun-e-Shahadat Order, 1984 would be drawn in terms that had these PWs been produced in Court, they would have not supported the case of prosecution. Reliance is placed on “Muhammad Rafique and others Vs. The State and others” (2010 SCMR 385), wherein it was observed that: -

“It is well-settled that if any party withholds the best piece of evidence, then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavorable to the prosecution.”

12.This Court is conscious of the fact that the co-accused namely Naseer is absconding in the present case, therefore, the case is to be adjudged in a way which may not Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

damage the case of either party. It is apparent from the record that the role of firing at the deceased has been attributed to absconding co-accused Naseer, while present appellant was assigned the role of causing injuries to the injured PWs. PW-7 Dr. Irfan who conducted the post-mortem of the deceased, affirmed in his report Ex.PW-7/2 that the death was caused due to multiple gunshot wounds. Thus, in the light of medical evidence, one thing is abundantly clear that the deceased died due to firearm injuries for which the absconding co- accused has specifically been charged in the FIR while no such role was attributed to present appellant. Thus, learned trial Court has committed a blatant error by holding the appellant responsible for murder of the deceased within the meaning of sections 302

(b)PPC.

Pivotal question that remains

before this Court for determination is as to whether present appellant shared his criminal intention with the absconding co-accused namely Naseer or not? In this case, it is an admitted fact that the deceased was died due Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

to firing of absconding co-accused. There is no evidence on the record either to prove that present appellant had anything to do with murder of deceased, rather he was saddled for causing injuries to the other injured PWs.

Only mere presence of appellant at the spot is not sufficient for holding that he has shared his common intention with absconding co- accused. Wisdom is derived from judgment rendered in case titled “Hassan V/s. State” reported as 1969 SCMR 454, wherein apex Court observed that: -

“The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention”.

In another case titled “Hasan

Din V/s. Muhammad Mushtaq and 02

others” reported as 1978 SCMR 49, same rational was reiterated by apex Court, in the following words: -

“In our view the learned counsel has misconceived the correct application of section 34 PPC. The mere presence of a person on the spot does not necessarily attract section 34 PPC. This section is not to be applied lightly, particularly in acquittal cases. Vicarious liability cannot be visited unless there is some strong circumstance to show common intention”.

Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

Likewise, Hon’ble Supreme

Court of Pakistan in case tilted “Bashir Ahmad & others v/s State” reported as PLD 1988 Supreme Court 86 in respect of applicability of section 34 PPC in murder cases has held that: -

“It was always necessary not to apply either of provisions of Ss. 34, 107 & 149 PPC, which seek conviction on vicarious liability only when there was doubt about application of these provisions.

When an intention, in common with others or otherwise, can develop during the occurrence, the reverse can also legitimately be assumed. Those who might have held an intention common with others before a crucial act, might change the mind/ intention and stop at something lesser than what the others intended doing. Theory that in such a situation their failure to prevent the others from doing the crucial next act, would necessarily show their participating intention and that was enough to attract vicarious liability, was too philosophical to apply to situation where blood is boiling rushing to limbs and needs more time to cool and settle to normal rhythm and temperature. When reflexes are in control, it is too much to expect a judge like composure and use of a golden scales by heart, head or hands. Law does not punish mere reflexes in such cases.”

It is well established that

common intention in each and every criminal case is to be inferred from peculiar circumstances of that particular case and not the other way around. As stated above, appellant has only been charged for causing injuries to the injured PWs, whereas it was absconding co-accused namely Naseer who Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

was specifically charged for committing the murder of deceased namely Bakhti Rahman.

Contention of prosecution that both the accused acted in furtherance of their common intention, gets no support from remaining circumstantial evidence on the record.

In light of evidence on record and wisdom contained in the afore-referred dicta, sharing of common intention on part of appellant has not been properly established by prosecution, hence, findings of learned trial Court to that extent are discarded, in all eventualities.

13.Thus, on all counts, these minor weaknesses and lacunas in evidence of prosecution, as discussed hereinabove, may not be taken as a justification for out-right acquittal of appellant, but such weaknesses may be considered for reduction of sentence as held by apex Court in case titled “Mst.

Bevi v/s Ghulam Shabbir and another” reported as 1980 SCMR 859, whereby it was observed: -

“It has been held in some cases that the principle underlying the concept of benefit of doubt can in Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence. As a definite motive was asserted against the respondent and the same has failed, keeping in view all the circumstances of this case, it would not be necessary to impose the capita' punishment. Therefore, while finding him guilty; under section 302, P. P. C. he is sentenced to transportation for life should be awarded as compensation.”

A similar rational has also been

expounded by apex Court in case titled “Mir Muhammad alias Miro v/s State” reported as 2009 SCMR 1188. Further reliance may also be placed on the judgments of apex Court rendered in case titled “Muhammad Ayaz Khan v/s Murtaza and other” reported as 2008 SCMR 984 as well as in case titled “Kamran Ullah v/s State and another” reported as 2020 SCMR 1214.

14.In view of above discussion and exposition of law, the instant criminal appeal is partially allowed to the extent that sentence of life imprisonment awarded to appellant namely Ijaz Ali U/S 302 (b) PPC is set aside, whereas rest of the impugned order/judgment dated 11.4.2025 shall remain intact. Benefit of section 382-B Cr.P.C is also extended to appellant.

Impugned judgment/order of learned trial Court shall stand modified to the above extent. On Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

completion of remaining terms of sentences, appellant shall be released from the jail forthwith, if not required in any other case, however, law on subject shall follow its own course.

15.Since this Court has already partially allowed the criminal appeal preferred by present appellant against his conviction, therefore, the connected criminal revision bearing No. 67-M of 2025 filed by petitioner/ complainant for enhancement stands dismissed, having become infructuous.

16.Before parting with this judgment, it is pertinent to clarify that findings rendered hereinabove shall have no effect or bearing on merits of the case of absconding co-accused namely Naseer, whose trial shall be conducted by learned trial with an independent judicial mind, whenever aforesaid accused surrender before a Court of law.

Announcement Dt. 05.8.2025 Sd/-

JUDGE

Sd/-

JUDGE

Nawab (D.B) Hon'ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din