IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE YAHYA AFRIDI 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
MR. JUSTICE MUHAMMAD ALI MAZHAR 
 
 
JAIL PETITION NO. 405 OF 2021 AND 
CRIMINAL PETITION NO. 946 OF 2021 
(Against the judgment dated 31.03.2021 passed by the 
Lahore High Court, Lahore in Criminal Appeal No. 453-
J/2014) 
 
(i) Ansar, (ii) Maqsood Ahmed, (iii) Mumtaz Ahmed 
(In JP 405/2021) 
(iv) Nasir, and (v) Nisar Ahmed 
 
 
 
(In Cr.P. 946/2021) 
 
 
…Petitioners 
VERSUS 
The State etc  
 
 
 
 
 
(In both cases) 
 
 
…Respondent(s) 
 
For the Petitioner(s): 
Mrs. Tabinda Islam, ASC 
Syed Rifaqat Hussain Shah, AOR 
(In Cr.P. 946/2021) 
 
Mehnaz Bibi, sister of Ansar, in person 
(In JP 405/2021) 
 
 
For the Complainant: 
Mr. Rashad Javaid Lodhi, ASC 
 
 
For the State: 
Mirza Muhammad Usman, DPG 
 
 
Date of Hearing: 
02.03.2023 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Petitioners along with co-
accused Naveed Ahmed were tried by the learned Additional Sessions 
Judge, Shakargarh, pursuant to a case registered vide FIR No. 578/2011 
dated 24.10.2011 under Sections 302/324/396 PPC at Police Station 
Shakargarh, District Narowal for committing dacoity cum murder of 
Muhammad Javed Rafique and for attempting to take life of Sarfraz Rafiq. 
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The learned Trial Court vide its judgment dated 09.07.2014 while 
acquitting the co-accused Naveed Ahmed, convicted the petitioners as 
under:- 
 
i) 
Under Section 302 PPC read with Section 149 PPC 
Sentenced to undergo imprisonment for life alongwith 
compensation of Rs.200,000/- each as envisaged under 
Section 544-A Cr.P.C. to be defrayed to the legal heirs of the 
deceased Muhammad Javed Rafique and in default whereof 
to further undergo SI for six months.  
 
 
ii) 
Under Section 396 PPC 
Sentenced to undergo imprisonment for life along with fine 
of Rs.50,000/- and in default whereof to further undergo SI 
for six months.  
 
 
iii) 
Under Section 324 PPC read with Section 149 PPC 
Ten years RI along with fine of Rs.20,000/- and in default 
whereof to further undergo SI for one month.  
 
All the sentences were ordered to run concurrently. Benefit 
of Section 382-B Cr.P.C. was also extended to the petitioners.   
 
2. 
 
In appeal, the learned High Court maintained the convictions 
and sentences recorded by the learned Trial Court. The prosecution story 
as given in the impugned judgment reads as under:- 
“2. 
The prosecution’s story as projected through FIR (Exh.PA) reflects 
that during the night of 23/24.10.2011 at about 1.30 AM, Fazal Mehmood 
alias Allah Ditta, the complainant (PW-1) alongwith his family members 
were sleeping in their house. The electric bulb was on, therefore, there 
was sufficient light in the courtyard. Meanwhile 9/10 persons, one of 
them was about six feet height whereas rest were of medium height with 
agile bodies, wearing Shalwar Kameez, armed with firearm weapons 
made a lurking tress in their house. The accused also gave beatings to 
inmates and on gun point conducted a search of the house. The accused 
after getting safe Almirah opened, took away three pairs of gold ear 
rings, six gold rings, four bangles/karreys, totally weighing ten tolas, cash 
Rs.20,000/-, 222 bore licensed rifle, & a pistol .30 bore. After hearing hue 
and cry, made by the complainant, Rasheed his brother, besides other 
neighbourers Zahid s/o Haneef, Muhammad Javed and Sarfraz son of 
Master Rafique reached at the spot. The accused alongwith robbed 
property were running away from the place of occurrence. They were 
being chased by the complainant party. They made straight firing on the 
complainant party hitting on the chest of Muhammad Javaid, who after 
receiving injury fell down and succumbed at the spot. One Sarfraz also 
received firearm injury on his left thigh at the hands of accused. The 
accused while making firing fled away from the place of occurrence. 
Besides the complainant, the occurrence was witnessed by Sarfraz 
Rafique, Rasheed Ahmad and Zahid and other family members of 
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complainant. The complainant had asserted that accused can be 
identified if brought before him and the PWs.” 
  
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 23 witnesses. In their statements 
recorded under Section 342 Cr.P.C, the petitioners pleaded their 
innocence and refuted all the allegations leveled against them. However, 
they did not make statements on oath under Section 340(2) Cr.P.C in 
disproof of allegations leveled against them. They also did not produce any 
defence evidence.  
4. 
 
At the very outset, learned counsel for the petitioners 
argued that there are material contradictions and discrepancies in the 
statements of the prosecution witnesses, which have been overlooked by 
the courts below. Contends that the prosecution case is full of doubts and 
infirmities, as such, petitioners deserve benefit of doubt. Contends that 
the prosecution case is based upon conjectures and surmises and it has to 
prove its case without any shadow of doubt but it has miserably failed to 
do so. Contends that the identification parade was conducted without 
observing the instructions/guidelines enunciated by the superior courts, 
therefore, it cannot be relied upon to sustain conviction of the petitioners. 
Contends that the recoveries are planted upon the petitioners, which 
creates a dent in the prosecution case. Contends that on the same set of 
evidence, co-accused Naveed has been acquitted, as such, the petitioners 
also deserve the same treatment to be meted out. Contends that nowhere 
in the evidence, it came out that as to which petitioner’s fire hit the 
deceased, therefore, all the petitioners cannot be saddled with the 
criminal liability of committing murder. Lastly contends that the reasons 
given by the learned High Court to sustain conviction of the petitioners are 
speculative and artificial in nature, therefore, the impugned judgment may 
be set aside.   
5. 
 
On the other hand, learned Law Officer assisted by the 
learned counsel for the complainant has defended the impugned 
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judgment. It was contended that the prosecution case is free from doubts 
and all PWs have supported the case of prosecution and there are no 
material contradictions in their evidence. It was further contended that 
the eyewitnesses were subjected to lengthy cross-examination but their 
evidence remained unshaken. Lastly contended that the prosecution has 
succeeded to prove its case beyond any shadow of doubt, therefore, the 
petitioners do not deserve any leniency from this Court.  
6. 
 
We have heard learned counsel for the parties at a 
considerable length and have perused the evidence available on record. 
7. 
 
It is cardinal principle of criminal jurisprudence that each 
case has its own facts and circumstances and that is to be decided keeping 
in view the peculiar facts and circumstances spelled out from the facts 
surfaced on the record. The instant case is the glaring example of 
highhandedness shown by the accused persons, who trespassed in the 
house of the complainant in between the night of 23/24 October, 2011 at 
about 01:30 am. The complainant Fazal Mehmood (PW-1) along with his 
family members was asleep in his house. There was sufficient light in the 
shape of electric bulb, which was ‘on’ in the courtyard. In the meanwhile, 
9/10 persons armed with firearms entered into the house. They forcibly 
woke up the inmates while giving beating to them. They also forcibly 
conducted search of the house on gun point and took away different gold 
ornaments weighing ten tolas, cash Rs. 20,000/-, 222 bore licensed rifle 
and a pistol .30 bore. After commission of the offence when the accused 
persons were leaving the premises of the complainant, on alarm raised by 
the complainant and the family, Rasheed, brother of the complainant, and 
other neighbourers Zahid, Muhammad Javed and Sarfraz reached at the 
spot. They started chasing the accused persons who had trespassed into 
the house of the complainant and had committed dacoity. While 
retreating when the accused persons were being chased by the 
complainant party, they started firing on them. As a consequence, a fire 
shot hit on the chest of Muhammad Javed, who succumbed to the injuries 
at the spot whereas one Sarfraz also sustained injuries on his left thigh. 
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The matter was reported to the Police and the formal FIR was registered 
on 04:15 am on the same day. In the crime report, the names of the 
accused were not mentioned obviously for the reason that they were not 
known to the complainant party. However, their features were specifically 
given in the crime report. The perusal of record shows that the petitioners 
were arrested in some other cases on 15.12.2011 and 01.03.2012 and 
then they were formally arrested in the present case. The prosecution 
advanced its case mainly upon (i) ocular account, (ii) identification parade, 
(iii) medical evidence, and (iv) recoveries. The ocular account has been 
furnished by Fazal Mehmood, complainant (PW-1), Zahid Hussain (PW-2), 
Sarfraz, injured (PW-3) and Mazhar Mehmood (PW-4). All these witnesses 
of the ocular account remained consistent on each and every material 
point qua the date, time, mode, manner of the occurrence and the locale 
of the injuries on the person of the deceased and the injured PW. Sarfraz 
(PW-3) had sustained injuries during the occurrence, which have fully been 
supported by the medical evidence given by Dr. Muhammad Tariq, who 
appeared as PW-8. The testimony of this injured PW as well as the stamp 
of injuries on his person clearly proves his presence at the place of 
occurrence. These PWs remained consistent on each and every material 
point inasmuch as they made deposition according to the circumstances 
surfaced in this case, therefore, it can safely be concluded that the ocular 
account furnished by the prosecution is reliable, straightforward and 
confidence inspiring. These PWs were subjected to lengthy cross-
examination but their testimonies could not be shattered. During the 
course of proceedings, the learned counsel contended that there are 
material discrepancies and contradictions in the statements of the eye-
witnesses but on our specific query she could not point out any major 
contradiction, which could shatter the case of the prosecution. In this 
regard, it must be kept in mind that the discrepancies have to be 
distinguished from contradictions. The contradiction in the statement of a 
witness may be fatal for the prosecution case but minor discrepancy in 
evidence will not make the prosecution case doubtful. Where 
discrepancies are of minor character and do not go to the root of the 
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prosecution story and do not shake the salient features of the prosecution 
version, they need not be given much importance. 
8. 
 
The identification parade of the petitioners was held on 
23.11.2011 and 06.03.2012 in District Jail Sialkot. The same was conducted 
by Muhammad Rashid Phularwan, Magistrate Section 30, Lahore, who 
appeared as PW-18. The said Judicial Magistrate categorically stated that 
the proceedings of the identification of each of the petitioner were 
conducted separately and the complainant and other PWs Zahid and 
Mazahar were separately summoned and they separately identified the 
petitioners. The petitioners were lined up with ten dummies of same 
stature and every time the witnesses were separately called for 
identification, the place of accused was changed. The said Judicial 
Magistrate further stated that the witnesses identified the accused in 
unambiguous terms and after completion of identification parade, he 
prepared the report and signed the same. The above-said witnesses and 
Muhammad Rashid Phularwan, Judicial Magistrate (PW-18) were 
subjected to lengthy cross-examination by the defence but they remained 
consistent on all material particulars of the prosecution case and their 
testimony could not be shattered. Nothing was suggested to PWs in their 
cross-examination that they deposed falsely on account of some enmity 
with the petitioners. The petitioners remained in the house of the 
complainant for a considerable length of time to complete their nefarious 
designs and the complainant had close proximity to remember them 
which enabled him to identify them later. So far as the argument of the 
learned counsel for the petitioners that the identification parade was 
conducted without observing the guidelines enunciated by the superior 
courts is concerned, suffice it is to state that the process of identification 
parade has to be carried out having regard to the exigencies of each case 
in a fair and non-collusive manner and such exercise is not an 
unchangeable ritual, inconsequential non-performance whereof, may 
result into failure of prosecution case, which otherwise is structured upon 
clean and probable evidence. Reliance is placed on Tasar Mehmood Vs. 
The State (2020 SCMR 1013). Even otherwise, it is settled law that holding 
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of identification parade is merely a corroborative piece of evidence. If a 
witness identifies the accused in court and his statement inspires 
confidence; he remains consistent on all material particulars and there is 
nothing in evidence to suggest that he is deposing falsely, then even the 
non-holding of identification parade would not be fatal for the prosecution 
case. Reliance is placed on Ghazanfar Ali Vs. The State (2012 SCMR 215) & 
Muhammad Ali Vs. The State (2022 SCMR 2024). The medical evidence 
available on the record further corroborates the ocular account so far as 
the nature, time, locale and impact of the injuries on the person of the 
deceased and injured is concerned. Although, it is the case of the 
prosecution that after their arrest, the petitioners led to the recoveries of 
some of the looted articles but the sole witness of the recovery 
proceedings i.e. Muhammad Nadeem (PW-17) has stated that his 
signatures were obtained on blank papers and articles were shown to him 
in the police station. The petitioners also got recovered the weapons, 
which they were carrying while committing the crime, but as no empty 
was sent to the office of Forensic Science Laboratory, therefore, all these 
recoveries are inconsequential. However, this does not mean that the 
petitioners are absolved of their criminal liability. There is sufficient 
evidence in the shape of ocular account, identification parade and medical 
evidence to sustain the conviction of the petitioners. During Police 
investigation, the accusation leveled against the petitioners was also 
found to be true.  
9. 
 
During the course of arguments, learned counsel for the 
petitioners had argued that nowhere in the evidence, it came out that as 
to which petitioner’s fire hit the deceased, therefore, all the petitioners 
cannot be saddled with the criminal liability. However, we do not tend to 
agree with the learned counsel. To appreciate the aforesaid submission, it 
would be in order to reproduce the relevant provisions of law, which read 
as under: 
“390. Robbery.--In all robbery there is either theft or extortion. 
 
When theft is robbery.--Theft is "robbery" if, in order to the committing 
of the theft, or in committing the theft, or in carrying away or attempting 
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to carry away property obtained by the theft, the offender, for that end 
voluntarily causes or attempts to cause to any person death or hurt or 
wrongful restraint, or fear of instant death or of instant hurt, or of instant 
wrongful restraint. 
 
When extortion is robbery.--Extortion is "robbery" if the offender, at the 
time of committing the extortion, is in the presence of the person put in 
fear, and commits the extortion by putting that person in fear of instant 
death, of instant hurt, or of instant wrongful restraint to that person or to 
some other person, and, by so putting in fear, induces the person so put 
in fear then and there to deliver up the thing extorted. 
 
Explanation.--The offender is said to be present if he is sufficiently near to 
put the other person in fear of instant death, of instant hurt, or of instant 
wrongful restraint. 
 
391. Dacoity: When five or more persons conjointly commit or attempt 
to commit a robbery, or where the whole number of persons conjointly 
committing or attempting to commit a robbery, and persons present and 
aiding such commission or attempt, amount to five or more, every person 
so committing, attempting or aiding, is said to commit "dacoity". 
 
395. Punishment for dacoity: Whoever commits dacoity shall be 
punished with imprisonment for life, or with rigorous imprisonment for a 
term which shall not be less than four years nor more than ten years and 
shall also be liable to fine. 
 
396. Dacoity with murder: If any one of five or more persons, who are 
conjointly committing dacoity, commits murder in so committing dacoity, 
everyone of those persons shall be punished with death, or 
imprisonment for life, or rigorous imprisonment for a term which shall 
not be less than four years nor more than ten years, and shall also be 
liable to fine.” 
 
10. 
 
On bare reading of the aforesaid provisions, it is manifestly 
clear that the 'dacoity' can be said to be an exaggerated version of 
robbery. If five or more persons conjointly commit or attempt to commit 
robbery it can be said to be committing the 'dacoity'. Therefore, the only 
difference between the 'robbery' and the 'dacoity' would be the number 
of persons involved in conjointly committing or attempt to commit a 
'robbery'. The punishment for 'dacoity' and 'robbery' would be the same 
except that in the case of 'dacoity' the punishment of imprisonment for 
life can be awarded. However, in the case of 'dacoity with murder' the 
punishment of death has also been provided in the statute. An immediate 
feature of Sections 391 & 396 PPC which strikes at first reading is that the 
word “conjointly” has been used in these provisions of law, which is not 
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used anywhere in Pakistan Penal Code except in the afore-said provisions. 
It appears that this word has been deliberately preferred over the word 
'jointly'. 'Conjointly' indicates jointness of action and understanding. 
Everyone acts in aid of other. 'Conjointly' means to act in joint manner, 
together, unitedly by more than one person. According to Black’s Law 
Dictionary, ‘conjoint robbery’ means where the act is committed by two or 
more persons. 'Conjoin' means 'join together', as per the Oxford Large 
Print Dictionary. According to Corpus Juris Secundum, 'Conjointly is 
explained as 'together', the one with knowledge, consent and aid of the 
other and pursuant to an agreement or understanding or 'unitedly'. In the 
'Words and Phrases' 'Vol. 8 A', published by 'West Publishing', same 
meaning is adopted as in Corpus Juris Secundum. It explains that conjoint 
robbery is where the act is committed by two or more persons. According 
to Webster's New International Dictionary 'conjoint' means 'united', 
'connected', associated or to be in conjunction or carried on by two or 
more in combination. Similar meaning has been given in ‘Collins’ 
dictionary. Thus the use of word 'conjointly' in Sections 391/396 PPC 
indicates that five or more robbers act with knowledge and consent and in 
aid of one another or pursuant to an agreement or understanding, i.e., 
unitedly. No doubt in most of dacoities, the robbers would be acting with 
a common object to loot with use of violence. The joint reading of Sections 
391 and 396 of PPC makes it abundantly clear that for the offence of 
dacoity, the essential pre-requisite is the joint participation of five or more 
persons in the commission of the offence. If in the course thereof any one 
of them commits murder, all members of the assembly would be guilty of 
dacoity with murder and would be liable to be punished as enjoin thereby. 
Thus, the essential pre-condition of an offence of dacoity with murder is a 
participating assembly of five or more persons for commission of the 
offence. It is not necessary that all the five persons must commit or 
attempt to commit robbery. If the total number of those who are 
committing or attempting to commit or are present and aiding such 
commission or attempt is at least five, all of them are guilty of dacoity. In 
other words, those who commit robbery and those who attempt to 
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commit the same, and those who are present and aiding such commission 
or attempt are all counted, and if their number is five or more all of them 
would be guilty of committing dacoity. Moreover, it is not necessary for 
their conviction that their attempt must succeed and even if the attempt 
fails even then the offence is dacoity. An immediate feature of Section 396 
PPC is that it is a self-contained provision, which means that the 
contributory liability is independent and does not rely on any other 
provision of law. Section 396 PPC in its plain terms applies to every 
situation in which five or more persons commit dacoity and in the course 
of the commission of such dacoity, any one of the said persons, commits 
murder. All five persons, thereby become liable by statutory prescription, 
to the offence of dacoity with murder and expose themselves to the 
punishment stipulated in the said provision. The three essential 
ingredients for invoking Section 396 PPC are as under:- 
(i) 
One of the persons must commit murder i.e. his act must 
amount to murder within the meaning of Section 300 PPC. 
 
(ii) 
The said person must be one of the five or more persons 
who have joined together to commit dacoity. 
 
(iii) 
The murder must be committed in the course of commission 
of such dacoity. 
 
11. 
 
If these conditions are fulfilled, then Section 396 of PPC 
would come into play and blight all other persons, involved in the act of 
dacoity even if one of them was aware that murder was about to be 
committed. In other words, so far as the remaining persons are concerned, 
the prosecution is required to prove in order for Section 396 PPC to apply 
is their intention to commit dacoity. The same was the view of this Court 
in Muhammad Ali Vs. The State (2022 SCMR 2024). 
12. 
 
So far as the argument of learned counsel for the petitioners 
that on the same set of evidence co-accused Naveed has been acquitted is 
concerned, the same is misconceived. The case of the petitioners is 
distinguishable to that of the acquitted co-accused. The learned Trial Court 
while acquitting the said co-accused has held that the name of co-accused 
surfacd on 01.11.2012 through supplementary statement after more than 
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one year of the occurrence wherein the complainant simply stated that he 
identified the accused in a court present at Shakargarh. However, he did 
not give the source of identification. Identification parade qua the said co-
accused has no value in the eye of law as this accused had already been 
named by the complainant. It was the version of the said co-accused that 
he is relative of the present petitioners and used to pursue their case, 
therefore, he has been falsely roped in this case after one year of the 
occurrence. The said findings of the learned Trial Court are neither 
arbitrary nor capricious and the same are based upon correct appraisal of 
the evidence available on the record.  
13. 
 
For what has been discussed above, we are of the view that 
the impugned judgment is well reasoned, proceeds on correct principles of 
law enunciated by this Court and the same does not call for any 
interference by this Court. Consequently, these petitions having no merit 
are accordingly dismissed and leave to appeal is refused.  
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
2nd of March, 2023 
Approved For Reporting 
Khurram 
