2026 P Cr. L J 328

 2026 P Cr. L J 328

[Gilgit-Baltistan Chief Court]

Before Mushtaq Muhammad and Jahanzeb Khan, JJ

SHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 01 of 2023, decided on 25th September, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 114 & 34---Criminal Procedure Code (V of 1898), S. 367---

Qatl-i-amd, abettor present when offence committed, common

intention---Appreciation of evidence---Contents of judgment---

Conviction awarded beyond the charge---Accused-appellant was

charged that he along with his co-accused committed murder of three

sons of complainant by firing---Record showed that the impugned

judgment of conviction rendered by the Trial Court was not in the

legal format as described in S. 367, Cr.P.C---Section 367 Cr.P.C

obligated the Court to deliver a formal judgment at the end of trial---

Said Section further prescribed the format of the judgment, which

shall comprise three components: (i) the points for determination, (ii)

the reasons, providing justification for the sentence or order of

acquittal, and (iii) the decision with corresponding order---Impugned

judgment of conviction lacked all the three mandatory components of

a valid judgment as mentioned in S.367, Cr.P.C.---Impugned judgment

of conviction was violative of S.367, Cr.P.C---Moreover, it was on the

record that on 17-03-2017, Trial Court categorically charged the

convict/appellant under a single head i.e. for his alleged abetment in

the occurrence---On the contrary, Trial Court had convicted the

appellant for causing intentional death of deceased sons of

complainant and sharing common intention punishable under S. 34,

P.P.C---Such deviation of the Trial Court was neither mentioned in the

impugned judgment nor the Trial Court at any stage of trial altered

the charge by exercising jurisdiction under S.227, Cr.P.C, nor was the

same justified with any cogent reasons---Prosecution's case restedon

the oral testimony of three eye-witnesses and the corroboratory

evidence which consisted of the recovery of crime empties, blood

stained soil and last worn clothes of the deceased---All the three eye-

witnesses implicated the convict/appellant for his issuing command

to the principal accused at the place of occurrence---After a thorough

examination of the prosecution evidence on record pertaining to the

charge of abetment, the prosecution evidence on the particular charge was insufficient to sustain the conviction passed against the

convict/appellant, lacking crucial elements necessary to establish

abetment---In the impugned judgment of conviction, the Trial Court

had neither discussed the prosecution evidence-with reference to the

particular charge of abetment nor had recorded a singular reason for

passing the conviction and capital punishment against the

convict/appellant---Mere reproducing of the statements of witnesses

in the judgment did not fulfill the legal requirement of S.367, Cr.P.C.---

Consequently, the impugned judgment of conviction passed by the

Trial Court against the convict/appellant was incorrect and flawed,

therefore warranted reversal---Further, it was found that the convict/

appellant at the relevant time of the occurrence was empty handed

and that regarding his alleged abetment there was no evidence on the

record---Therefore, the sentence passed by the Trial Court against the

convict/appellant was set-aside---Appeal against conviction was

allowed, in circumstances.

Shahzad Hussain and others v. The State and another 2024 PCr.LJ

1383 rel.

(b) Penal Code (XLV of 1860)---

----S. 107---Abetment, proof of---Three kinds of actions were held

culpable under S. 107 P.P.C---Firstly, that the accused must have

instigated any person to do a certain act or omission which caused

harm or injury to that person; secondly, that the accused must have

engaged with a person/persons in a conspiracy for doing that

particular act or omission, and lastly, he must have intentionally

aided by doing a certain act or omission, which act or omission

caused any injury or harm to that person.

Mahfuz-ul-Haq for Appellant.

Khush Rehman, Deputy Advocate General for the State.

Date of hearing: 24th September, 2025.

JUDGMENT

MUSHTAQ MUHAMMAD, J.---The striking feature of the case in

hand is the inordinate and unexplained delay of three years and one

month which was consumed after termination of trial till

pronouncement of judgment.

After recording statements of defense witnesses on 13-03-2020 trial

was completed and instead of its decision in view of the legal

requirement of Section 366(1)(a) Cr.P.C. the case was adjourned on

different reasons/excuses for a period of two years and seven months

for the hearing of arguments till 01-10-2022. On Ist October 2022 arguments were heard and the judgment was pronounced on 05-04-

2023 six months after hearing of arguments. The case is marred by an

unexplained and unjustified delay of three years and one month next

after conclusion of trial. Such protracted proceedings and dilatory

maneuvers plague the Criminal justice system, eroding its

effectiveness and credibility.

2. The above cited criminal appeal is directed against the impugned

judgment of conviction dated 05/04/2023, recorded by the learned

Additional Sessions Judge, Diamer (trial Court) in Session Trial No.

160/2016, whereby the learned trial court has convicted the appellant

Sher son of Gushpoor, under section 302/114/34 P.P.C. For a ready

reference, the relevant line from the impugned judgment of conviction

is reproduced hereunder:

"I find present accused guilty under sections 302/114/34 P.P.C and

convict him for life."

Learned trial court did not record its reasons for not awarding the

compensation to the complainant party under section 544-A Cr.P.C.

Similarly, the learned trial court while passing the aforesaid sentence

has not given the benefit of S.382-B Cr.P.C to the convict/appellant as it

is on record that convict/appellant was arrested on 27-05-2014 and was

released on bail on 13-12-2014. Besides the above referred

shortcomings in the impugned judgment of conviction dated 05-04-

2023, the judgment rendered by the learned trial court is not in the

legal format as described in section 367 Cr.P.C. Section 367 Cr.P.C

obligates the court to deliver a formal judgment at the end of trial. The

section further prescribes the format of the judgment, which shall

comprise three components: (i) the points for determination, (ii) the

reasons, providing justification for the sentence or order of acquittal,

and (iii) the decision with corresponding order. The impugned

judgment of conviction dated 05-04-2023 lacks all the three mandatory

components of a valid judgment as mentioned in section 367 Cr.P.C.

The impugned judgment of conviction dated 05-04-2023 is violative of

section 367 Cr. P.C and the directions issued by this court in the case

cited, "Shahzad Hussain and others v. The State and another" (2024

PCr.LJ 1383).

3. It is on record that on 17-03-2017, learned trial court categorically

charged the convict /appellant under single head i.e. for his alleged

abetment in the occurrence. On the contrary, learned trial court has

convicted the appellant for causing intentional death of deceased

Abdul Qayum, Abdul Sadiq and Abdul Mutalib son of Khalil and

sharing common intention punishable under section 34 P.P.C This

deviation of the learned trial court is neither mentioned in the

impugned judgment dated 05-04-2023, nor the learned trial court at any stage of trial altered the charge by exercising the jurisdiction

under section 227 Cr.P.C, nor is the same justified with any cogent

reasons.

4. Necessary facts behind the occurrence dated 21-05-2014 are that

on the day of occurrence at about half past seven o' clock morning, the

principal accused Abdul Raquib, his father Samandar Khan

(proclaimed offenders) along with the convict/appellant arrived at the

place of occurrence as described in the document site plan Ex. PW-5/A.

It is in the FIR Ex.PW-5 that, convict /appellant and the proclaimed

offender Samandar Khan were present on the spot of occurrence

unarmed. It is in the document Ex PW-5 that accused Abdul Raquib

was duly armed with a kalashanikov. Complainant Khalil father of the

deceased souls in his initial report has mentioned that on the

command of convict/appellant and accused Samandar Khan (p.o) the

principal accused Abdul Raquib (p.o) opened fire at the deceased

Abdul Qayum, Abdul Sadiq and Abdul Mutalib, and receiving the

bullet injuries all the three sons of complainant Khalil breathed their

last on the spot. After the occurrence convict/appellant and the

proclaimed offenders disappeared from the scene of occurrence.

According to the FIR Ex. Pw-5 the motive behind the occurrence is a

dispute over a patch of land. Eye-witnesses of the occurrence are

named in the FIR. According to the FIR, complainant the father of

deceased above named despite of the tragic incident, reported the

occurrence within two hours after travelling a twenty seven miles of

distance from "Makhili", which is a high altitude pasture area, to

settled area "Thore". After registration of the case, police started

investigation and collected some corroboratory evidence of the

occurrence, prepared the site plan and recorded the statements of

witnesses on the same day. Ironically, complainant Khalil, father of the

deceased above named, promptly reported the occurrence but on the

other hand, he obstructed the police during investigation process and

restrained the police from procuring the crucial corroborative

evidence by not allowing the post mortem of the dead bodies. What is

even more distressing is that the police, by accepting the application

Ex. Pw5/1, handed over the dead bodies to the complainant for burial.

In this manner, the complainant and the investigating officer caused

disappearance of evidence in a case of capital punishment and this act

of the complainant and investigating officer is cognizable under

section 201 P.P.C.

5. After completion of investigation, police filed interim report No.

10/2014, to the extent of convict/appellant pending the process of

proclamation and attachment under sections 87 and 88 Cr.P.C against

the accused under absconsion. 6. Learned trial court framed a formal charge against the

convict/appellant on 07-03-2017, to which he pleaded not guilty and

trial against the convict /appellant commenced. Statements of

complainant Khalil, Mst. Gul Chinar and Haider Khan were recorded

on 03-04-2017. Statement of Pw. Yarqamoon was recorded on 10-10-

2017 and learned DPP abandoned the pws Abdul Wadood and Yousuf.

On 08-11-2018 after examining the 10. prosecution closed its evidence.

On 29-04-2019 convict/appellant was confronted with the recorded

prosecution evidence. Convict/appellant did not take the specific

defense of "Alibi" and did not enter in the witness box but he was

allowed to examine DWs on that point. After the termination of trial

on 13-03-2020, learned trial court after consuming a three years period

passed the impugned judgment of conviction on 05-04-2023. Felt

aggrieved with the impugned judgment of conviction dated 05-04-2023,

the convict/appellant has called in question the same through the

appeal in hand.

7. Arguments have been heard on 24-09-2025. Learned counsel

appearing on behalf of convict/appellant mainly emphasized on the

point that conviction passed against him is unfounded as it is on

record proved that at the relevant time of occurrence he was present

there at the place of occurrence unarmed. Learned counsel added that

regarding the particular charge of abetment, there is no direct

evidence. He lastly prayed that by accepting the appeal, the conviction

passed against him may be set aside and he may be acquitted of the

charge. On the other hand, learned DAG contested the arguments of

learned counsel and replied that there is direct evidence against the

convict/appellant regarding his command to the principal accused

Abdul Raquib to open fire at the deceased. Learned DAG referred the

statements of complainant Khalil, Mst.Gul Chinar and Haider Khan. He

added that presence of the convict/appellant at the place of occurrence

is proved on record and his plea of Alibi cannot be accepted being an

afterthought. Learned DAG lastly prayed that appeal being devoid of

merits may not be accepted.

8. Keeping in view the divergent submissions of the learned counsel

for the convict/appellant and the learned DAG, we have perused the

record and deliberated over the matter. By way of the criminal appeal,

the convict/appellant challenges the merits of the impugned judgment

of conviction to his extent and his sole argument is that he did not play

vital role in the occurrence. The essential facts underpinning the

charge against the convict/appellant are that whether on the day of

occurrence he was present there at the place of occurrence with a

clear motive to kill his nephews, whether the principal accused Abdul

Raquib was under the direct and irrefutable command of the convict/appellant and whether the convict/appellant abetted the

commission of the offense?

Prosecution's case rests on the oral testimony of three eye-witnesses

and the corroboratory evidence which consists of the recovery of

crime empties, blood stained soil and last worn clothes of the

deceased. All the three eye-witnesses implicated the convict/appellant

for his issuing command to the principal accused Abdul Raquib at the

place of occurrence. We have carefully examined the ocular account of

the above said three eye-witnesses keeping in view the particular

charge of abetment. Abetment is defined in section 107 P.P.C. A bare

reading of the definition of abetment it reveals that three kinds of

actions are held culpable under section 107 P.P.C. Firstly, that the

accused must have instigated any person to do a certain act or

omission which caused harm or injury to that person. Secondly, that

the accused must have engaged with a person/persons in a conspiracy

for doing that particular act or omission and lastly, he must have

intentionally aided by doing a certain act or omission, which act or

omission causes any injury or harm to that person. Since the

convict/appellant was charged for aiding and abetting the crime,

therefore the prosecution evidence must contain the evidence showing

that convict/appellant has a clear and reasonable intention to abet the

offense. Secondly that in a direct particular charge of abetment there

must be connection between the abetment and commission of the

offense. When the prosecution alleges the act of abetment against any

accused, it is the duty of prosecution to bring on record a reasonable

evidence to prove any single or more necessary components of the

abetment mentioned above. Abetment cannot be inferred merely from

the accused's utterances or gestures at the scene of occurrence, such as

shouting or pointing. To prove the charge of abetment, it must be

shown that the accused was involved in a prior conspiracy with the

other accused and actively instigated or extended help to accomplish

the criminal act. Accusations of abetment must be based on substantial

evidence, demonstrating a clear causal mitigate the potential threats

when perceiving an apparent danger. The reported occurrence, seems

to defy this logical expectation, making it implausible that the

complainant and his sons at their own place, would remain passive

and fail to address the anticipated threat.

10. After a thorough examination of the prosecution evidence on

record pertaining to the charge of abetment, we are of the considered

opinion that the prosecution evidence on the particular charge is

insufficient to sustain the conviction passed against the

convict/appellant, lacking crucial elements necessary to establish

abetment. 11. Impugned judgment of conviction dated 05-04-2023 passed by

the learned trial court is perused. Learned trial court has neither

discussed the prosecution evidence with reference to the particular

charge of abetment nor has recorded a singular reason for passing the

conviction and capital punishment against the convict/appellant. Mere

reproducing the statements of witnesses in the judgment does not

fulfil the legal requirement of section 367 Cr.P.C. Consequently, the

impugned judgment of conviction dated 05-04-2023 passed in criminal

trial No.160/2016 by the learned trial court, against the convict

/appellant Sher son of Gushpoor resident of Makhili Thore Tehsil

Chilas is incorrect and flawed, therefore warrants reversal.

12. These are the reasons behind our concise order dated 25-9-2025,

which states as follows:

"25.09.2025. Mr. Mahfooz-uo-Haq advocate for the convict/appellant

present.

Mr. Khush Rehman Deputy Advocate General for the State present.

I. For reasons to be recorded later in our detailed judgment, which

shall follow soon, the Criminal Appeal No. 01/2023 is hereby

accepted. Consequently, the judgment of conviction recorded by

the learned trial court/Addl. Sessions Judge District Diamer dated

05-04-2023 in criminal trial No. 160/2016 against the present

convict/appellant, Sher son of Ghushpoor resident of Makhili

Thore Chilas is hereby declared unfounded on two counts. Firstly,

the convict/ appellant at the relevant time of the occurrence was

empty handed and secondly, that regarding his alleged abetment

there is no evidence on the record. Therefore, the sentence passed

by the learned trial court against the convict/appellant Sher son of

Ghushpoor is hereby set-aside. The appellant Sher son of

Ghushpoor be released forthwith if not required in any other case.

II. The case against the absconder/accused Abdur Raquib son of

Samandar Khan and Samandar Khan son of Ghushpoor both

residents of Makhili Thore Chilas is hereby remanded back with

the following directions. Firstly, the learned trial court shall

inquire and trace the personal credentials and particulars of

both the absconders/accused from NADRA. After tracing their

particulars, i.e., CNICS, same shall be blocked from NADRA.

Secondly, all cellular services and Bank accounts and other

facilities of whatever kind operating against their CNICs shall be

blocked and suspended. After completion of this proceedings the

learned trial court shall issue perpetual warrant and adjourn the

case sine-die. Statements of PWs recorded shall be treated

evidence in absentia against the absconder accused Abdur

Raquib and Samandar Khan. II. Criminal Misc. No. 15/2023 is merged in this order and same is

also disposed of accordingly. File."

JK/30/GB Appeal allowed.