IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
MR. JUSTICE JAMAL KHAN MANDOKHAIL 
MR. JUSTICE ATHAR MINALLAH 
 
CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 
AND CRIMINAL PETITION NO. 613 OF 2022 
(Against the judgment dated 22.04.2022 passed by the High Court of sindh, Karachi in Criminal Jail 
Appeal Nos. 126/2020, 185/2020 and Confirmation Case No. 03/2020) 
 
Mst. Hajira Bibi @ Seema and  
Mst. Shaina Hameed 
 
 
(In Cr.A. 39-K/2022 and Cr.MA 113-K/2022) 
Abdul Qaseem 
 
 
 
(In Cr.P. 613/2022) 
 
…Appellant/Appellants(s) 
VERSUS 
Abdul Qaseem and another 
 
(In Cr.A. 39-K/2022 and Cr.MA 113-K/2022) 
The State 
 
 
 
 
(In Cr.P. 613/2022) 
 
…Respondent(s) 
 
For the Appellant(s): 
Mr. Mahmood Habibullah, ASC 
(In Cr.A. 39-K/2022. Via video link from Karachi) 
 
Mr. Amir Mansoob Qureshi, ASC 
(In Cr.P. 613/2022. Via video link from Karachi. Also for 
respondent No. 1 in Criminal Appeal No. 39-K/2022) 
 
 
For the State: 
Mr. Hussain Bux Baloch, DPG 
(Through video link from Karachi) 
 
 
Date of Hearing: 
06.02.2023 
 
JUDGMENT 
CRIMINAL APPEAL NO. 39-K OF 2022 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Mst. Hajira and Mst. 
Shaina Hameed were tried by the learned Additional Sessions Judge, Karachi, 
pursuant to a case registered vide FIR No. 72/2019 under Sections 
302/201/202/109/34 PPC at Police Station Tamoria, Karachi. The allegation 
against the appellants was that they had abetted the murder of the deceased 
Abdul Habib, brother of the complainant, with co-accused Saeed Wali. The 
said co-accused Saeed Wali did not join trial and was declared a proclaimed 
offender. Co-accused Haroon, who allegedly facilitated the main absconding 
accused Saeed Wali by driving motorcycle, being juvenile was tried separately 
CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022  
AND CRIMINAL PETITION NO. 613 OF 2022 
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by the learned Additional Sessions Judge, Karachi. The learned Trial Court vide 
two separate judgments dated 27.01.2020 convicted the appellants and co-
accused Haroon as under:- 
 
 
Appellants Mst. Hajira and Mst. Shaina 
i) 
Under Section 302(b)/34 PPC read with Section 109 PPC 
To death as Tazir. They were also directed to pay compensation 
amounting to Rs.10,00,000/- to the legal heirs of the deceased 
each and in case of default in payment, they shall suffer SI for six 
months more.  
 
 
ii) 
Under Section 202 PPC 
To suffer RI for six months or to pay fine of Rs.5000/- each. In 
case of default, they were further directed to suffer SI for 05 
 days.  
The sentences were ordered to run concurrently. Benefit of 
Section 382-B Cr.P.C. was also extended to the appellants.  
 
 
 
Co-accused Haroon  
i) 
Under Section 302(b)/34 PPC  
To imprisonment for life as Tazir. He was also extended benefit 
of Section 382-B Cr.P.C.  
 
2. 
 
In appeal the learned High Court while maintaining the 
conviction of the appellants under Section 302(b) PPC, altered the sentence of 
death into imprisonment for life. The other conviction and sentence under 
Section 202 PPC and the amount of compensation and the sentence in default 
whereof was also maintained. The convictions were ordered to run 
concurrently with benefit of Section 382-B Cr.P.C. However, the learned High 
Court acquitted co-accused Haroon and ordered his release. The prosecution 
story as given in the judgment of the learned Trial Court reads as under:- 
“3. 
The brief facts of the prosecution case are that complainant Abdul 
Qaseem son of Abdul Hameed stated that on 18.02.2019 through phone call 
he came to know that his brother Abdul Habib son of Abdul Hameed has been 
murdered due to firing and dead body shifted to Abbasi Shaheed Hospital. On 
such information he reached the hospital where he saw the dead body of his 
brother. The police conducted legal formalities, thereafter dead body was 
handed over to them for funeral ceremony. He further disclosed that he 
inquired and came to know that on 18.02.2019 his brother Abdul Habib left 
the house to Pakistan House in his vehicle Black Color Land Cruiser. When he 
reached at about 2025 to 2045 at service road, Sarena Mobile Market road 
near Sakhi Hassan Chowrangi, some unknown accused have made fires upon 
him and injured him thus he died at the spot. He further stated that his 
brother was member of Pak Sarzameen Party (PSP). He also remained 
CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022  
AND CRIMINAL PETITION NO. 613 OF 2022 
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candidate for MPA from PS-122, hence instant FIR was lodged against 
unknown accused.” 
 
3. 
 
After completion of the investigation, report under Section 173 
Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove 
its case produced 22 witnesses. In their statements recorded under Section 
342 Cr.P.C, the appellants pleaded their innocence and refuted all the 
allegations leveled against them. However, they did not opt to appear as their 
own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the 
allegations leveled against them. They also did not produce any evidence in 
their defence.  
4. 
 
At the very outset, learned counsel for the appellants argued 
that the appellants were only involved to the extent of abetment but no proof 
in this regard could be placed on record. Contends that no specific date, time 
and place where the conspiracy was hatched has been mentioned in the crime 
report. Contends that the only evidence against the appellants is the voice 
messages but even if the same is believed to be true, the same does not 
constitute the offence with which the appellants have been charged with. 
Lastly contends that the reasons given by the learned courts below to sustain 
conviction of the appellants are speculative and artificial in nature, therefore, 
the appellants may be acquitted of the charge.  
5. 
 
On the other hand, learned Law Officer assisted by learned 
counsel for the complainant vehemently opposed this appeal. It has been 
contended that to sustain conviction of the appellants, the prosecution has 
placed on record trustworthy and reliable evidence, therefore, the appellants 
do not deserve any leniency from this Court. 
6. 
 
We have heard learned counsel for the parties at some length 
and have perused the evidence available on the record with their able 
assistance.  
7. 
 
It is the prosecution story that the appellants were second wife 
and step daughter of the deceased, who had some business dispute with him 
and for this reason they hatched a conspiracy to commit murder of the 
CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022  
AND CRIMINAL PETITION NO. 613 OF 2022 
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deceased with the help of appellant Mst. Hajra’s brother Saeed Wali. To bring 
home the guilt of the appellants the prosecution mainly relied upon the 
testimonies of Abdul Qasim (PW-2), Abdul Aziz (PW-3) and Ms. Wardat Izar 
(PW-18). A bare perusal of the record reveals that no specific date, time and 
place where the conspiracy was hatched has been mentioned in the crime 
report. The name and number of witnesses to that extent also does not find 
mention in the crime report. Although the above-named three prosecution 
witnesses were subsequently brought into picture by the prosecution in 
support of its case but their testimonies also do not reveal any exact date and 
time when the conspiracy was hatched. There are three stages in the 
commission of a crime, i.e. (i) the mental stage in which the crime is 
considered and determined upon, (ii) the preparatory stage, and (iii) the stage 
of execution. Before proceeding further, it would be advantageous to 
reproduce Sections 107 and 109 of the Pakistan Penal Code, which read as 
under:- 
“107. Abetment of a thing: 
A person abets the doing of a thing, who: 
First: 
Instigates any person to do that thing; or 
Secondly: 
Engages with one or more other person or, persons in 
any conspiracy for the doing of that thing, if an act or 
illegal omission takes place in pursuance of that 
conspiracy, and in order to the doing of that thing; or 
Thirdly: 
Intentionally aids, by any act or illegal omission, the 
doing of that thing. 
 
“109. Punishment of abetment if the Act abetted is committed in 
consequence and where no express provision is made for its punishment: 
Whoever abets any offence shall, if the act abetted is committed in 
consequence of the abetment, and no express provision is made by this Code 
for the punishment of such abetment, be punished with the punishment 
provided for the offence: 
Provided that, except in case of Ikrah-i-Tam, the abettor of an offence 
referred to in Chapter XVI shall be liable to punishment of ta'zir specified for 
such offence including death.” 
 
8. 
 
A bare perusal of Section 109 PPC shows that the same comes 
into operation if there is abetment of an offence. Section 107 deals with 
abetment of a thing. Abetment under the said provision involves active 
complicity on the part of the abettor at a point of time prior to actual 
CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022  
AND CRIMINAL PETITION NO. 613 OF 2022 
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commission of offence. It is essence of crime of abetment that the abettor 
should substantially assist the principal culprit towards commission of offence. 
Concurrence in the criminal acts of another without such participation therein 
does not per se become culpable. Mere negligence in an act also does not 
bring in a person within the purview of the offence of abetment. Perusal of 
Section 107 PPC reveals that three ingredients are essential to dub 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 
abetment. Expression "abettor" has been defined in Section 108 PPC to mean 
a person who abets either commission of an offence, or commission of an act 
which would be an offence if committed by a person capable by law of 
committing an offence with the same intention or knowledge as that of the 
abettor. Intention to aid commission of the crime is the gist of offence of 
abetment and in the absence of necessary intention, such offence is not made 
out. Liability of an abettor of a crime is generally co-extensive with the 
principal offender. All the three ingredients of Section 107 PPC, which have 
been referred above, are missing in this case.  We have specifically asked the 
learned Law Officer and the learned counsel for the complainant to show us 
from record any material, which could connect the appellants with the 
commission of the crime but except the voice messages from the Whatsapp 
chat of the appellants and the principal accused, they could not point out 
anything. Since the audio messages were in Pashto language, the same were 
translated into English and a transcript thereof has been placed on record as 
Exh.27/1. The learned High Court has also reproduced the same in the 
impugned judgment. We have carefully gone through the transcript of the 
messages and are persuaded to observe that the same do not constitute any 
offence. To establish the charge under section 109 PPC, it is the duty of the 
prosecution to produce evidence of conclusive nature in order to prove the 
ingredients as mentioned in the definition of abetment, referred above. 
However, the prosecution has not produced evidence in support of any one of 
the ingredients of abetment specified in section 107 PPC. Evidence produced 
by the prosecution in this case is unsatisfactory and is not sufficient to sustain 
conviction of the appellants. It is settled principle of law that the conviction 
must be based on unimpeachable, trustworthy and reliable evidence. Any 
CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022  
AND CRIMINAL PETITION NO. 613 OF 2022 
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doubt arising in prosecution case is to be resolved in favour of the accused and 
burden of proof is always on prosecution to prove its case beyond reasonable 
doubt. It is also an established principle of law and equity that it is better that 
100 guilty persons should let off but one innocent person should not suffer. 
The peculiar facts and circumstances of the present case are sufficient to cast 
a shadow of doubt on the prosecution case, which entitles the appellants to 
the right of benefit of the doubt. For the accused to be afforded this right of 
the benefit of the doubt, it is not necessary that there should be many 
circumstances creating uncertainty and if there is only one doubt, the 
benefit of the same must go to the accused. This Court in the case of Mst. 
Asia Bibi Vs. The State (PLD 2019 SC 64) while relying on the earlier 
judgments of this Court has categorically held that “if a single circumstance 
creates reasonable doubt in a prudent mind about the apprehension of guilt 
of an accused, then he/she shall be entitled to such benefit not as a matter 
of grace and concession, but as of right. Reference in this regard may be 
made to the cases of Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub 
Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in 
Abdul Jabbar vs. State (2019 SCMR 129). However, as discussed above, in the 
present case the prosecution has failed to prove its case beyond any 
reasonable shadow of doubt. 
 
9. 
 
For what has been discussed above, this appeal is allowed and 
the impugned judgment to the extent of the appellants is set aside. The 
appellants are acquitted of the charge. They shall be released from jail 
forthwith unless detained/required in any other case.  
 
CRIMINAL M.A. NO. 113-K OF 2022  
 
10. 
 
In view of the order passed in the connected Criminal Appeal No. 
39-K/2022, this application for grant of bail to the appellants has become 
infructuous and is dismissed accordingly.  
 
CRIMINAL PETITION NO. 613 OF 2022 
11. 
 
Through this petition, the complainant has called in question the 
vires of the impugned judgment whereby the learned High Court acquitted co-
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AND CRIMINAL PETITION NO. 613 OF 2022 
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accused Haroon. We have gone through the merits of the case and found that 
the learned High Court while acquitting co-accused Haroon has given cogent 
reasons, which are neither arbitrary nor perverse or fanciful. The learned High 
Court has evaluated the evidence in its true perspective and has come to the 
conclusion, which is unexceptionable. Learned counsel for the complainant 
could not point out any material to interfere with the impugned judgment. 
Consequently, this petition having no merit is dismissed and leave to appeal is 
refused. 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
JUDGE 
Islamabad, the 
6th of February, 2023 
Approved For Reporting 
Khurram 
 
