IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
MRS. JUSTICE AYESHA A. MALIK 
 
CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 
(Against the judgment dated 07.03.2017 passed by the 
Lahore High Court, Rawalpindi Bench in Criminal Appeal 
Nos. 01 & 02/2014 & Murder Reference No. 09/2014) 
 
Muhammad Ali 
 
 
 
 
(In Cr.A. 363/2021) 
Khurram Shahzad 
 
 
 
 
(In Cr.A. 364/2021) 
Muhammad Sajjad, complainant  
 
(In Cr.As. 365 & 366/2021) 
 
…Appellants 
VERSUS 
The State etc  
 
 
 
 
(In all cases) 
 
…Respondent(s) 
 
For the Appellant(s): 
Mr. Basharatullah Khan, ASC 
Syed Rifaqat Hussain Shah, AOR 
(In Cr.As. 363-364/2021) 
 
 
For the Complainant: 
Malik Qamar Afzal, ASC 
(In Cr.As. 365-366/2021) 
 
 
For the State: 
Mr. Muhammad Jaffer, Addl.P.G.  
 
 
Date of Hearing: 
22.09.2022 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Khurram Shahzad 
and Muhammad Ali along with co-accused Muhammad Waheed Akhtar 
were tried by the learned Sessions Judge, Chakwal, pursuant to a case 
registered vide FIR No. 172 dated 14.11.2012 under Sections 
302/324/396/449 PPC at Police Station Dhudial, District Chakwal for 
committing dacoity and murder of Hafiz Muhammad Ijaz. The learned Trial 
Court vide its judgment dated 03.01.2014 while acquitting the co-accused, 
convicted the appellants as under:- 
 
i) 
Under Section 460 PPC 
 
 
To death.  
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ii) 
Under Section 396 PPC 
To death with a fine of Rs.50,000/- each or in default 
whereof to further suffer SI for six months.  
 
 
iii) 
Under Section 302 (b) PPC 
To death with a direction to pay an amount of Rs.100,000/- 
each to the legal heirs of the deceased. 
 
 
iv) 
Under Section 337-A(ii) PPC 
To five years RI each with a direction to pay the amount of 
Arsh, which shall be 5% of the Diyat in equal shares to the 
said injured.  
 
2. 
 
In appeal, the learned High Court while maintaining the 
conviction of the appellants under Section 460/396 PPC, altered the 
sentence of death into imprisonment for life. The amount of fine and the 
sentence in default whereof was maintained. Benefit of Section 382-B 
Cr.P.C. was also extended to the appellants. The conviction and sentence 
of the appellants under Section 337-A(ii) PPC was also maintained. 
However, the learned High Court set aside the conviction and sentence of 
the appellants under Section 302(b) PPC. All the sentences were ordered 
to run concurrently. Being aggrieved by the impugned judgment, the 
appellants filed Jail Petition No. 322/2017 & Criminal Petition No. 
520/2017 whereas the complainant filed Criminal Petition Nos. 631 & 
632/2017. This Court granted leave in the afore-noted petitions on 
04.11.2021 and the present Criminal Appeals have arisen there-from.  
3. 
 
The prosecution story as given in the judgment of the 
learned Trial Court reads as under:- 
“2. 
The facts of the case, as enshrined in the statement 
(Exh:PR) made by Muhammad Sajjad complainant (PW-5) before 
the police, are that he is resident of Dhoke Chach and has his 
residential house at village Bheen and was running a medical 
store/clinic at the main market; that his wife and children 
remained in the house and he while leaving for his clinic, used to 
lock the main door from outside; that on 14.11.2012, when he 
reached back home at about 8.30 p.m. after the closure of shop, 
he opened the main gate, all of a sudden, three dacoits, who 
were armed with pistols, another armed with chopper (Toka) 
entered his house whereas one of their companion remained at 
the gate; that the dacoits snatched an amount of Rs.5,000/- and 
mobile phone of the complainant; that one of the dacoits, who 
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was quite young, made blows with the reverse side of pistol on 
the head of the complainant and his right shoulder, who became 
injured; that the dacoits asked the complainant to get the grill of 
the courtyard opened; that the complainant called his wife 
Aqsan Anwar, who on hearing his noise, bolted the room from 
the inside and made telephonic calls to the brothers of the 
complainant, informing them about the situation; that the 
brothers of the complainant arrived whereafter the assailants 
after pushing the grill entered the courtyard and then in the 
rooms; that one of the dacoits made a shot with pistol hitting on 
above the right eye of Hafiz Muhammad Ijaz, the brother of the 
complainant, who fell down due to the injury; that the other 
brother of the complainant Muhammad Nawaz came forward; 
that the second fire was made on him by the other assailant and 
the fire shot hit on the abdomen of Muhammad Nawaz; that the 
complainant etc thereafter, grappled with the assailants and 
caught hold one of the dacoits; that in that process, his other 
companion made a chopper blow, which hit on the head of his 
own companion; that thereafter, the assailants after making fire 
shots went out of the house; that Muhammad Zameer, the 
brother of the complainant also sustained a fire shot injury on 
the finger of his right hand; that one of the dacoits died on the 
road side due to the injuries; that on hearing the report of firing, 
so many persons from the locality gathered there and seeing 
them and also taking advantage of the darkness, the dacoits 
succeeded in running away. The one who died at the spot was 
later on identified as Noman Masood s/o Muhammad Masood 
Pervez. The injured were taken to the hospital and in the way, 
Hafiz Muhammad ljaz, one of the brothers of the complainant, 
died due to the injuries.” 
 
  
4. 
 
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 20 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 
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.  
5. 
 
At the very outset, learned counsel for the appellants 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, appellants deserve benefit of doubt. Contends that the 
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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 prosecution witnesses are interested and related, 
therefore, their evidence has lost its sanctity and the conviction cannot be 
based upon it. Contends that the identification parade was conducted in 
Police Station without observing the instructions/guidelines enunciated by 
the superior courts. Contends that during identification no role 
whatsoever was ascribed to the appellants. Contends that in-fact the two 
co-accused of the appellants had murdered the brother of the 
complainant but they have been done to death in a police encounter, 
therefore, the appellants cannot be saddled with the criminal liability. 
Contends that the recoveries of weapon of offence from the appellants 
are planted upon them. Contends that on the same set of evidence, co-
accused of the appellants has been acquitted, as such, the appellants also 
deserve the same treatment to be meted out. Lastly contends that the 
reasons given by the learned High Court to sustain conviction of the 
appellants are speculative and artificial in nature, therefore, the impugned 
judgment may be set aside.   
6. 
 
On the other hand, learned Law Officer assisted by the 
learned counsel for the complainant has defended the impugned 
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 
appellants do not deserve any leniency from this Court.  
7. 
 
We have heard learned counsel for the parties at a 
considerable length and have perused the evidence available on record. 
 
 
It is cardinal principle of criminal jurisprudence that each 
criminal case has its own peculiar facts and circumstances, therefore, 
needs to be decided accordingly. As per the prosecution version disclosed 
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in the crime report, it is the case of the prosecution that four dacoits 
trespassed into the house of complainant Muhammad Sajjad while one of 
their companion remained outside the gate to provide protection to other 
companions during occurrence. During the course of investigation, one 
Waheed Akhtar was also disclosed as one of the companion, who was 
ascribed the role of abetment. As a consequence, the tally of the accused 
involved in the said occurrence enhanced to six. It is an admitted fact that 
one of the co-accused namely Nouman was done to death by his 
companions during the occurrence while two of the accused namely 
Muhammad Waqas and Tallat Mehmood were done to death in a police 
encounter. During the course of proceedings before the Trial Court, the 
prosecution advanced its case mainly upon the ocular account, medical 
evidence, identification parade and recovery of weapon of offence from 
the appellants. The ocular account was furnished by Muhammad Sajjad, 
complainant/injured (PW-5) and Muhammad Nawaz, injured (PW-7). Both 
of 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 PWs. Although both of them were subjected to cross-examination 
at length but the defence miserably failed to detect anything which can 
hamper the prosecution case on salient features. The medical evidence 
fully corroborates the ocular account. During the course of investigation, 
the accusation against the appellants was fully established as per the 
contents of the crime report. The main thrust of the arguments advanced 
by the learned counsel for the appellants was that the ocular account 
furnished through related witnesses has lost its strength on the ground 
that occurrence has taken place inside the house at 8.30 pm, which clearly 
reflects that the inmates of the house are supposed to be at home, 
therefore, their presence at the spot cannot be doubted in any manner 
keeping in view the place and the time of occurrence. The other assertion 
of the learned counsel relates to minor discrepancies, which cannot 
hamper the prosecution case as it is repeatedly held by this Court that 
minor discrepancies do not frustrate the prosecution case unless and until 
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there is something which directly shatters the salient features of the 
prosecution case but the same is squarely absent in the instant case. 
Reliance is placed upon Allah Bakhsh Vs. Ahmad Din (1971 SCMR 462). As 
far as the recovery of the weapon of offence and the identification parade 
are concerned, it is suffice to say that the recovery of pistol has already 
been held inconsequential by the learned High Court. Whereas the 
identification parade looses its strength if the appellants are identified 
during the course of proceedings before the Trial Court although it is an 
admitted fact that Muhammad Zulqarnain, Civil Judge/Judicial Magistrate, 
Rawalpindi (PW-17) who conducted identification parade has categorically 
stated that the aforesaid witnesses had duly identified the appellants 
during the course of identification parade. It is an admitted fact that the 
matter pertains to an occurrence in which dacoity was committed. During 
the course of the said dacoity, one person was done to death whereas two 
sustained injuries. To evaluate the strength of participation and criminal 
liability, it seems advantageous to reproduce the relevant provisions of 
law, which read as under:- 
 
“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.” 
 
8. 
 
The Legislature while defining provisions of Sections 391/396 
PPC has deliberately used the word “conjointly”, which is not used 
anywhere in PPC except in the afore-said provisions. 'Conjointly' indicates 
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jointness of action and understanding. Every one 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. The use of word 
'conjointly' in Section 391 PPC indicates that five robbers act with 
knowledge and consent and in aid of one another or pursuant to an 
agreement or understanding i.e. unitedly. A bare perusal of the aforesaid 
provisions clearly reflects that the purpose of using the word “conjointly” 
relates to overlapping each and every act of participants in the occurrence 
on equal basis without any distinguishing feature. The aforesaid provisions 
are based upon entirely different footing as compared to ordinary case of 
murder where conviction can be recorded on the basis of role ascribed 
coupled with the fact of having common object or common intention. The 
law has been devolved on these lines since long but as far as these two 
provisions i.e. Sections 391/396 PPC are concerned, there is absolutely no 
chance to distinguish the criminal liability on the basis of act or role 
ascribed to each accused rather each one of them becomes equally 
responsible soon after they make preparation for the commission of the 
offence, act during the course of occurrence and even the acts committed 
while retreating after commission of the offence. No one can be 
distinguished on the basis of role or criminal liability with reference to 
such like offences as these offences are squarely against the fabric of the 
society and heinous in nature by all means. Section 396 declares in specific 
terms that the liability of other persons is co-extensive with that of the 
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actual murderer. All that is required to be proved is that they have been 
conjointly committing dacoity and during the course of dacoity death 
caused by a dacoit would be murder and would be attributed to all of 
them. The death need not be proved against any of the dacoits in 
particular so long as death is the result of cumulative effect of violence 
used by the gang. The primary element of the offence under this provision 
of law is that the dacoity was committed conjointly by all persons 
involved, and the secondary element is that murder was committed while 
the dacoity was being committed. The fact that Section 396 PPC is a self-
contained provision stands out right away upon its first reading. The 
Section is unique, in that, it imposes vicarious liability upon all members of 
the gang without there being any distinction and to that extent is sui 
generis in nature. Section 396 PPC in its plain term applies to every 
situation in which five or more persons commit dacoity and in the course 
of the commission of such dacoity anyone of the said person commits 
murder. Thereby all five or more people become squarely responsible for 
the crime of "dacoity with murder" and expose themselves to the 
penalties outlined in the aforementioned provision of law. The three 
essential ingredients for invoking Section 396 PPC are that (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, and 
(iii) the murder must be committed in the course of commission of such 
dacoity. If these conditioned are fulfilled, Section 396 PPC would set in and 
bring all the persons involved in the act of dacoity in the same category 
even if they did not commit the murder. In other words, so far as the 
remaining persons are concerned, the prosecution is not required to prove 
any overt act in order to entail Section 396 PPC to apply with their 
intention to commit dacoity. Neither intention nor knowledge that murder 
would be committed in the course of the commission of such dacoity is 
required to be proved to exist in the contemplation of any of the said 
other persons. As a consequence, all persons must, therefore, possess the 
mens rea. They would all nevertheless be exposed to the rigour of Section 
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396 PPC. The provision is, therefore, sui generis, in nature, therefore, it 
seeks to hold persons liable for the offence.  
9. 
 
So far as the argument of learned counsel for the appellants 
that on the same set of evidence co-accused has been acquitted is 
concerned, the same is misconceived. The case of the appellants is 
distinguishable to that of the acquitted co-accused. The said co-accused 
was ascribed the role of abetment but no evidence whatsoever regarding 
the role played by him in the commission of the offence could be placed 
on record. No specific date, time and place where the conspiracy was 
hatched has been placed on record. Even name and number of witnesses 
to that extent is not available on the record. 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. All the three ingredients of Section 107 PPC are prima facie 
missing in this case. In order to link the said co-accused, the prosecution 
had also produced evidence of extra judicial confession. According to 
which, he had made confession before Muhammad Bashir, Muhammad 
Naseer & Zahid Mehmood PWs. According to said witnesses, the accused 
had appeared before them and disclosed to them that the complainant is 
under the belief that the dacoity in his house was got committed by him 
and he had requested for pardon. The learned Trial Court has extensively 
examined this aspect of the matter and rightly came to the conclusion that 
from the narration of the witnesses it is nowhere established that the 
accused himself had made any confession that he was involved in the 
offence or the same was got committed by him. Rather, his statement was 
that it was the plea of the complainant with regard to his involvement in 
the commission of offence and for that reason he had approached the 
witnesses for pardon. Such a statement cannot come in the definition of 
extra judicial confession as in extra judicial confession, an accused has to 
confess his guilt before an independent person. As far as the case of the 
appellants qua conviction and sentence is concerned, after a careful 
analysis it is observed by us that the learned High Court has already taken 
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a lenient view while converting the sentence of death into imprisonment 
for life. 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.  
10. 
 
For what has been discussed above, all these appeals having 
no merit are accordingly dismissed. The above are the detailed reasons of 
our short order of even date.  
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
22nd of September, 2022 
Approved For Reporting 
Khurram 
