Jamshed Vs The State etc

JUDGMENT SHEET

PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Cr. Appeal No.06-D/2026 with Cr.Misc.No.18-D/2026.

Jamshed and 02 others Vs.

The State etc.

JUDGMENT

For Appellants: Muhammad Yousaf Khan, Advocate.

For State: Mr. Inam Ullah Khan Kundi AAG.

For Respondent: Mr. Saif-ur-Rehman Khan, Advocate.

Date of hearing: 19.5.2026.

SADIQ ALI, J.- Through instant appeal, I intend to dispose of the instant appeal as well as the connected Cr.R.No.65-D of 2025, as both the matters have arisen from one and the same judgment and order dated 11th December, 2025, passed by learned Additional Sessions Judge-VII, D.I.Khan, in case FIR No.246, dated 31.5.2024, registered under Sections 324, 34, 334, 337- D, 337-F(iii) PPC read with Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013, of Police Station Gomal University, D.I.Khan, whereby the appellants were convicted and sentenced as under:

(a)The accused Jamshed is accordingly convicted under Section 324 of PPC and sentenced to undergo imprisonment for 05 years for causing injury to complainant Muhammad Ikram and fine of Rs.50,000/- to be paid to the complainant, recoverable as

arrears of land revenue or in default thereof to further suffer six months S.I;

(b)The accused Jamshed shall also be liable to pay Daman in the sum of Rs.50,000/- to the complainant for causing injuries, falling under section 337-F(iii) PPC.

(c)The accused Sharafat Ali is accordingly convicted under Section 324 of PPC and sentenced to undergo imprisonment for 05 years and fine of Rs.50,000/- payable to injured Muhammad Abdul Rehman as compensation, which shall be recoverable as arrears of land revenue or in default thereof the accused shall further undergo six months S.I;

(d)The accused Sharafat Ali shall also be liable to pay Arsh for causing injuries of the nature of Jurah-Jaifah within the meaning of section 337-D PPC. The quantum of Arsh shall be equivalent to one-third (1/3rd) of the Diyat amount i.e. Rs.9,828,670/-, as fixed by the Finance Division in the years 2025, which comes to Rs.3,276,223/-. The said amount shall be paid to the victim Abdul Rehman.

(e)The accused Sharafat Ali shall also be liable to pay Arsh for the injuries caused to Abdur Rehman with the nature of Itlaf-i-Udw under Section 334 PPC (for the loss of one kidney due to firearm) which as per Section 337-R PPC is 1/2nd of the Diyat amount Rs.9,828,670/-, as fixed by the Finance Division in the year 2025, hence, 1⁄2 of Diyat amount is Rs.4,914,335/- to be paid to the victim Abdul Rehman.

(f)Accused Sharafat Ali is also convicted under Section 15 Arms Act for one year with fine of Rs.10,000/- or in default thereof, to undergo one-month S.I.

(g)The accused Kifayat Ali is accordingly convicted under Section 324 r/w Section 34 PPC and sentenced to undergo imprisonment for 02 years and fine of Rs.10,000/- to be paid to the complainant party, for sharing common intention.

All the sentences were ordered to run

concurrently. Benefit of Section 382-B, Cr.P.C. was extended to the convicts/appellants.

2.Brief summary of the prosecution case, as narrated in the FIR is that on 31.5.2024 at about 22:00 hours, the complainant Muhammad Ikram, in injured condition, alongwith injured Muhammad Abdul Rehman, aged about 18/19 years, reported the occurrence to the local police at Emergency Room of Civil Hospital, D.I.Khan to the effect that on the fateful day, he alongwith his brothers Abdul Rehman and Muhammad Islam, were going back to their home after closing their shop. At about 7:35 p.m, when they reached to the house of their co-villager Jamshed, they noticed that Jamshed was armed with Repeater, Sharafat Ali, armed with pistol, while Kifayat Ali was having 12 bore shotgun, were already present there. Accused Jamshed verbally insulated them, whereafter Jamshed and co-accused Sharafat Ali started firing at them with their respective weapons, as a result thereof, he got hit and sustained injuries due to the firing of accused Jamshed, while from the firing of co-accused Sharafat Ali, his brother Abdul Rehman got hit at his belly, however, his brother Muhammad Islam fortunately escaped unhurt. After commission of the occurrence, the

accused fled from the spot. Motive for the offence was stated to be a dispute concerning the children.

3.On completion of the investigation, report under Section 173, Cr.P.C. was submitted against the accused in the trial Court. Copies of the relevant documents were provided to the accused in compliance with Section 265-C, Cr.P.C. The accused were formally charged to which they pleaded not guilty and claimed trial. The prosecution produced and examined as many as 12 witnesses. After closure of the prosecution evidence, statements of the accused were recorded under section 342, Cr.P.C., wherein they once again professed innocence and false implication. They, however, neither opted to be examined on oath in terms of Section 340(2), Cr.P.C., nor did they produce defence evidence. Learned trial Court, after hearing arguments, vide judgment and order dated 19.4.2025, convicted the appellants and sentenced them as under:

(a)The accused Jamshed is accordingly convicted under Section 324 of PPC and sentenced to undergo imprisonment for 05 years for causing injury to complainant Muhammad Ikram and fine of Rs.50,000/- to be paid to the complainant, recoverable as arrears of land revenue or in default thereof to further suffer six months S.I;

(b)The accused Jamshed shall also be liable to pay Daman under section 337-F(iii) PPC to the tune of Rs.50,000/- to the complainant.

(c)The accused Sharafat Ali is accordingly convicted under Section 324 of PPC and sentenced to undergo imprisonment for 05

years for causing injury to complainant Muhammad Ikram and fine of Rs.50,000/- to be paid to the complainant, recoverable as arrears of land revenue or in default thereof to further suffer six months S.I;

(d)The accused Sharafat Ali shall also be liable to pay Arsh under section 337-D PPC to the tune of 1/3rd of the Diyat i.e. Diyat amount Rs.81,03,955/3 (fixed by the Finance Division vide notification No.F8(3)Fiii/91-202 dated October, 2nd 2024) which is Rs.27,01,318/- to be paid to the victim Abdul Rehman.

(e)The accused Sharafat Ali shall also be liable to pay Arsh under Section 334 PPC (for the loss of one kidney to injured Abdul Rehman which resulted due to firearm) to the tune of Rs.1/2nd of the Diyat (as per section 337-R PPC) i.e. Diyat amount Rs.81,03,955/2 (fixed by the Finance Division vide notification No.F8(3)Fiii/91-202 dated October, 2nd 2024) which is Rs.27,01,318/- to be paid to the victim Abdul Rehman.

(f)Accused Sharafat Ali is also convicted under Section 15 Arms Act for one year with fine of Rs.10,000/- or in default thereof, to undergo one month S.I.

(g)The accused Kifayat Ali is accordingly convicted under Section 324 PPC and sentenced to undergo imprisonment for 02 years and fine of Rs.10,000/- to be paid to the complainant party, for sharing common intention.

4.Against the aforesaid judgment of conviction, the appellants filed Cr.A.No.43-D of 2025, while Cr.R.No.16-D/2025 was filed for enhancement of sentence before this Court. After hearing the learned counsel for the parties, this Court vide judgment dated 03.10.2025, while setting-aside the impugned judgment and order dated 19.4.2025, remanded back the case to the learned trial Court with direction to re-write the

judgment afresh with further direction that while re- writing the judgment, the learned trial Court shall, besides other aspects of the case, specifically address and determine;

(i)precise nature of injuries sustained by complainant and his brother;

(ii)whether the injuries amount to Itlaf Salahyat-Adu;

(iii)the distinct role of each accused in causing injuries; and

(iv)the legal ground, if any, for applying the principle of common intention.

5.After the remand, the trial Court heard arguments from both sides and vide impugned judgment and order dated 11th December, 2025, convicted the appellants and sentenced them, as mentioned in opening paragraph of this judgment. The appellants have assailed the judgment and order of conviction through the instant appeal while seeking their acquittal, whereas the complainant Muhammad Ikram filed the connected Cr.R.No.65-D/2025 for enhancement of the sentenced awarded to the appellants. Both the matters, being inter- connected, are taken up together for decision through this single judgment.

6.Heard the arguments of learned counsel for the appellants, the learned AAG representing the State as well as the learned counsel for the complainant. Record perused with their able assistance.

7.After hearing the arguments, the points for determination would be:

(i)Whether the occurrence took place in the mode, manner and at the stated time;

(ii)Whether the complainant alongwith the eyewitnesses were actually present on the spot at the time of occurrence;

(iii)Whether the eyewitness account is supported by the medical evidence;

(iv)Whether sharing of common intention by accused Kifayat Ali is established from the evidence on record; and

(v)Whether the prosecution has successfully established the motive as alleged in the FIR.

8.It is cardinal principle of justice that in criminal dispensation of justice, the ocular account plays a vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary, once the ocular account is disbelieved, then no other evidence would be sufficient for recording conviction, therefore, at first instance, this Court has to analyze the probative value of the ocular account in the light of the facts and circumstances of the case.

9.It is the case of prosecution that on the day of occurrence the complainant alongwith his brothers Abdul Rehman and Muhammad Islam, were going back to their home after closing their shop. At about 7:35 p.m,

when they reached to the house of their co-villager Jamshed, they noticed that Jamshed was armed with Repeater, Sharafat Ali, armed with pistol, while Kifayat Ali was having 12 bore shotgun, were already present there. Accused Jamshed verbally insulated them and he and co-accused Sharafat Ali started firing at them with their respective weapons. As result of the firing by accused Jamshed, the complainant sustained injuries, whereas his brother Abdul Rehman got hit at his belly from the firing of co-accused Sharafat Ali, however, his other brother Muhammad Islam fortunately escaped unhurt. In order to substantiate charge against the accused, the prosecution examined injured complainant Muhammad Ikram, Muhammad Islam and Abdur Rehman as PW-4, PW-5 and PW-6, respectively. All the three witnesses supported the prosecution version by giving minutes details of the incident during the test of cross-examination and the defence was unable to shatter their testimony as they remained firm on almost material aspects of the incident. No doubt, that all the three witnesses are brothers inter se, however, it is by now well settled that the testimony of a close relative can be believed if the same rings true. The testimonies of eyewitnesses are further corroborated by the medical evidence, regarding which Dr. Mutahir Jameel deposed as PW-9. The doctor stated that on 31.5.2024 at about

9:24 p.m, he examined injured Muhammad Ikram and Muhammad Abdur Rehman. He firstly examined Abdur Rehman and observed an entry wound on lateral border of abdomen below chest; secondly, he examined the complainant and observed three entry wounds on medial surface of right leg and one entry wound on anterior surface of right leg with no exit. He further observed three to four entry wounds at lateral border left leg with no exit wounds. It is worth mentioning that during trial, the injured complainant produced additional documents showing removal of left kidney through surgery, which was confirmed by the report of concerned Surgeon depicting that, “Exploratory Laparotomy (a major open surgery involving a large incision in the abdomen to access internal organ. It allows surgeons to explore the abdomen cavity). Nephrectomy (Removal of kidney)”.

In Muhammad Bashir1, the apex Court has held that:

“It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial

Muhammad Bashir and another v. The State and others (2023 SCMR 190)

matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored”.

10.There is another aspect of the case that the parties are neighbours inter se and the occurrence is stated to have taken place due to a dispute concerning the children. A specific question was put to the complainant in this respect to which he replied that prior to present occurrence accused Sharafat had lodged report against them as they had beaten him and he was hospitalized. In this respect, PW Abdur Rehman stated during cross-examination that they had submitted surety bonds under Section 107, Cr.P.C.

11.Undoubtedly, no empties were recovered in the present case and there were some minor discrepancies in the statements of eyewitnesses and for this very reason, the appellants Jamshed and Sharaft Ali, who actively participated in the commission of offence, were awarded lesser punishment.

12.So far as case of appellant/accused Kifayat Ali is concerned, undoubtedly, he was charged for sharing common intention with the co-accused, hence, before proceeding further, it would be convenient to discuss the ingredients constituting the offence under Section 34 PPC. As per section 34 of the Pakistan Penal

Code, 1860, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as it were done by him alone. Section 34 is intended to meet a case in which it may be difficult to distinguish between the acts of individual member of a party who acts in furtherance of common intention of all or to prove exactly what part was played by each of them. The principle underlying in this section is participation in some action with the common intention of committing a crime. Once such participation is established, this section is at once attracted. The section deals with the acts done by several persons in furtherance of common intention. Where criminal is liable for the act in the same manner as it was done by him alone. This section is neither a punitive section nor does it enact a rule of evidence but mainly relates to the concept of joint liability. “Common Intention” does not create a new offence but deals with the constructive liability of the members for acts done in furtherance of common intention. It is well-recognized proposition of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible, as to the part taken by each in the crime.

Where parties go with a common purpose to execute other in execution and furtherance of their common

purpose; as the purpose is common so much is the responsibility. The concept to impose criminal liability always attaches to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence. However, section 34 PPC is exception contained in penal code making the person liable for acts of his associates. The inclusion of “Common Intention” under section 34 which mainly relates to the concept of joint liability is intended to meet a case in which it may be difficult to distinguish between the acts of individual member of a party who acts in furtherance of common intention of all or to prove exactly what part was played by each of them. The principle underlying in this section is participation in some action with the common intention of committing a crime. The essence of such liability was to be found in existence of a “common intention” stimulating the accused leading to the doing of a criminal act in furtherance such intention and to invoke the aid of section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of common intention of all. Etymologically, the word “intention” is a state of mind, which is not ordinarily ascertainable but is to be gathered or inferred only from external acts and surrounding circumstances and for this purpose it is very

necessary to examine the act itself of the accused. An intention is the purpose or design with which an act is done. This may consist of an intention to perform some further act, an intention to bring about certain consequence is expected and the word “common” connotes belonging or sharing equally by more than one.

Analytically, common intention simply means the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. An act is intentional if it exists in-idea before it exits in-fact, the idea realizing itself in the fact because of the desire by which it accompanied. Where more than one mind meets in doing or bearing to do an act which amounts to an offence, that preconcert or the mental or physical participation in the commission of the crime is the “common intention” of the persons giving consensus for committing the criminal act. Thus, “common intention” ensures criminal liability to each of the participants, if the participation being in furtherance of that common intention.

13.Undoubtedly, a common intention should be “anterior in time” to the commission of the crime showing a prearranged plan and prior concert and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or the conduct or other relevant circumstances of the case. This

inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries, caused by one or some of them, the acts done by others to assists those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance that all of them had left the crime scene together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had common intention to commit the offence with which they could be convicted.

14.In order to apply this section, posture and gesture are essential. The essence of liability is to be found in the existence of common intention of the offenders. The essence of liability is to be found in the existence of common intention enlivening the accused leading to the doing of a criminal act in furtherance of such intention. In order to attract provision of section 34 PPC, the following is absolute necessity:

(i)Pre-Arranged Plan:

Common intention necessarily implies a

prearranged plan. There must be a prior meeting of the minds of the criminals and a plan formed among them to

perpetrate a particular crime. To constitute a common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them.

The joint action as envisaged in section 34 consists of translating of intention commonly held into effect. The existence of such pre-concert can be established even by proof of acts performed by individuals after the completion of main crime. The pre-arranged plan constituting a common intention under the section need not be an elaborate one; it may develop even after the fight has begun. It is not necessary that there should be gap of some long time; common criminal intention may develop suddenly and on the spot. Under section 34 PPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved the common intention to bring about the particular result may well-develop on the spot as between a number of persons with reference to the facts of each case and even if it develops on spot, it must be anterior in point of time to commission of crime showing a pre-arranged plan and prior concert.

(ii)Act In Furtherance Of Common Intention:

The expression “in furtherance of common intention of all” was not available in the original text.

The legislature by section 1 of Act XXVII of 1870 repealed the original section and in substituting another section therefore, inserted the words “in furtherance of

common intention of all” as representing the condition precedent to each of such persons being held liable for the crime in the same manner as if were committed by him alone. As such, the furtherance of common design is necessary condition before this rule is made applicable to the use of an individual person. This change of law is very significant and it indicates the idea of attracting the provision of this section and fix constructive guilt on each of the several accused there must be participation in action with a common intention although the different accused might have taken different parts. “In Furtherance of Common Intention” is shown when utterance of certain damaging words by an accused to instigate an offender to commit an offence may not amount to an act committed in furtherance of common intention to attract Section 34, P.P.C, unless prosecution proves that offence so committed was result of influence and control of instigator over offenders who had committed that offence. It is, therefore, necessary for Court to find out whether co accused while committing an offence were acting independently or they were under influence and control of accused that instigate them. If act committed by an accused appears to have been done independently without being influenced by instigation of other accused, then alleged instigator cannot be convicted and sentenced under the garb of Section 34.

(iii)Knowledge and Intention:

Knowledge is not same thing as “intention”. There is a difference between the intention to do a certain thing and knowledge that a certain thing is likely to be the result of one”s act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons will arise under this section only where such criminal act don in furtherance of common intention of the persons who loin in committing it. If they had no intention of doing such an act but only knew it to be likely that such a criminal might be perpetrated as consequence of their coming together, the section will not apply. “Common Intention” and “Similar Intention” Similar intention by itself is not enough to bring the case within the ambit of Section 34, P.P.C. For applicability of Section 34, PPC, it has to be conclusively established that the persons concerned had common intention for committing the criminal act which was in concert pursuant to pre- arranged plan. To attract Section 34 PPC, it has to be established that accused was animated with common intention as distinct from similar intention. Common intention implies acting in concert and existence of pre- arranged plan and that is to be proved either from conduct of accused or prevailing circumstances at the time of occurrence or from any incriminating facts.

Where there is no evidence of common design, this section is not applicable. In order to attract Section 34, it is not sufficient to prove that an offence is a likely consequence of the common intention. Section 34 of the penal code, 1860 is intended to meet a case in which it may be difficult to distinguish between the acts done in furtherance of common intention of the offenders. The essence of liability is to be found in the existence of common intention of the offenders. The essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. “Common intention” usually consists of some or all of the following elements: Common intention, motive, preplanned preparation and concert pursuant of such plan. Common intention, however, may develop even at the spur of the moment or during the commission of the offence. Conversely common intention can also undergo a change and disappear at the spur of the moment or in the course of the transaction. “Intention” is a mental condition and has often to be gathered from the facts and the surrounding circumstances of the case as direct evidence is very often not forthcoming. Common intention can also develop even at the spur of the moment prior to the main offence or even during the commission of similar or lesser offence. Not only that

and this is important, conversely, common intention can also undergo change at the spur of the moment prior to the offence or even during a transaction. In other words, it is not impossible to visualize in law, that if two or more persons had common intention before the commencement of a criminal act, it can be changed either to a different intention (may be of a lesser crime) of negation of crime; and proceeding further, the commonness regarding a certain intention might be abandoned at any stage.

(iv)Active Participation:

Mere presence of persons on scene of occurrence would not necessarily mean that they acted in furtherance of common intention in commission of offence. Some sort of pre-arranged plan must be proved that criminal act was done in concert pursuant to pre- arranged plan. Presumption of constructive intention must not be readily applied or pushed too far. In case there is a little doubt with regard to sharing of common intention, benefit should go to accused. This benefit should be given to accused not as a matter of grace but as a matter of right. Question of “common intention” under section 34 PPC, is a question of fact and should be determined in accordance with circumstances of each case. Determination of “common intention” would be dependent upon inference from motive of accused and

his/her act, conduct before or after occurrence. Mere presence on spot during spot during occurrence would not justify accused being imputed with requisite intention under section 34 PPC. Section 34, P.P.C. not to be applied lightly. Vicarious liability cannot be visited unless some strong circumstance exists showing “common intention”. Mere presence of a person on the spot does not attract the provision of section 34, P.P.C.

Ref: 1978 SCMR 49. Hassan Din v. Muhammad Mushtaq etc. (PLJ 1978 SC 429). Intention to be gathered from the conduct of the accused and attending circumstances. PLD 1954 FC 77 Bahar v. Crown. 1969 SCMR 599 and 1969 P.Cr.L.J 1153.

15.In Qudratullah2, it was held that:

“Insofar as theme of section 34, P.P.C. is concerned, it deals with the acts done by several persons in furtherance of common intention. Neither it is a punitive section, nor does enact a rule of evidence but mainly relates to joint liability. It simply means that if two or more persons intentionally commit an offence jointly which amounts to as if each of them had committed it individually and they will have to share the consequences jointly subject to the proof that at the relevant time each one of them remained involved in the commission of the offence e.g. mere presence at the spot ipso facto would not be sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of sharing common intention even prior to the commission of offence. It must be proved that the offence was committed in concert pursuant to the prearranged plan. The Qudratullah v. The State and another (PLD 2017 Peshawar 5)

inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof or prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”.

Similarly, in Syed Farman Ali Shah3, it is held that:

“The general rule governing the constructive liability of several accused for a crime is that there should be prior concert and pre- arranged plan because before an accused can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. In this regard we would refer the judgment of the apex Court in the case titled "Muhammad Yaqoob, Sub-Inspector v. The State" reported as PLD 2001 SC 378. It was further observed in the said judgment that all that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily led to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”.

16.Coming to the merits of the present case, although in the FIR, accused Kifayat Ali was shown present armed, however, no overt act towards the commission of offence was assigned to him. The record, however, transpires that before commission of the offence, allegation of abusing the complainant party was assigned to co-accused Jamshed and thereafter, the co- Syed Farman Ali Shah v. Mian Syed Wahab Bacha and another (2024 MLD 1055 (Peshawar Mingora Bench)]

accused Jamshed and Sharafat Ali resorted to firing at the complainant party. From surrounding circumstances of the present case, it could not be safely inferred that any such pre-arranged plan existed to attract vicarious liability under Section 34 of the Pakistan Penal Code, however, the learned trial Court erred in convicting the appellant Kifayat Ali, hence, his conviction needs interference. In Manzoor Ahmad Shah4, the apex Court has held that:

“It appears that something had happened at the spot leading to the present occurrence and it could well be that in such a sudden occurrence every accused person might have been responsible for his own individual act. In these circumstances, particularly when there is no evidence available regarding sharing of common intention by the present appellants with their co- convict namely Mubarik Ali, we have found it difficult to sustain the convictions and sentences of the appellants vis-a-vis the murder of Kashifa Bibi who had not been harmed by the present appellants at all”.

Likewise, in Hayat5, while acquitting the appellant therein, held that:

“Admittedly, the appellant is the real brother of the deceased and father of the absconding accused. According to the version of the prosecution, the absconding co-accused Noora armed with sticks, hit the deceased on his head, who later on succumbed to his injuries. There is no evidence on record that the accused/appellant caused any injuries to the deceased or that he was armed with any deadly weapon. There is also no

4 Manzoor Ahmad Shah and others v. The State and others (2019 SCMR 2000) Hayat v. The State (2026 YLR 46 [Balochistan (Turbat Bench)]

evidence on record to suggest any previous bitterness of a serious nature between the parties prior to the occurrence; therefore, in view of their close relationship with each other, mere living in the same house cannot be viewed with suspicion that there was pre- concert or pre-arrangement between the appellant and the absconding co-accused for the commission of the offence. There is no evidence on record to prove that any pre-consultation or pre-planning had taken place between two accused before the occurrence, nor the said element can be inferred from the surrounding facts of the case”.

17.Insofar as the connected petition for enhancement of sentence is concerned, as stated above, there were some minor discrepancies in the testimony of eyewitnesses and that no empties were recovered from the spot, hence, keeping in view the above, the sentence awarded to the appellants Jamshed and Sharafat Ali by learned trial Court meets the ends of justice and no case is made out for enhancement of the sentence awarded to afore-named appellants.

18.For the reasons stated above, the instant appeal is partially allowed, the conviction and sentence awarded to appellant Kifayat Ali, vide judgment and order impugned herein, is set-aside and he is acquitted from the charges levelled against him. He be released forthwith, if not required to be detained in any other case and so far as case of Jamshed and Sharafat Ali is concerned, the prosecution has successfully proved its against both the appellants through convincing evidence,

hence, the sentence awarded to them by learned trial Court needs no interference and is accordingly maintained.

19.In nutshell, the appeal stands partially allowed in the above terms, while the connected criminal revision stands dismissed.

20.Above are the reasons for my short order of even date.

Announced.

19th May, 2026. -Sd/- Kifayat/CS* JUDGE

(S.B)

Hon’ble Justice Sadiq Ali