' KHAWAJA MUHAMMAD SAEED, J.--- Through this criminal appeal the correctness of the judgment of the Shariat Court, dated 20-12-2002, has been challenged by the present appellants.
2. Relevant facts, briefly stated, are that the respondent-complainant lodged a F.I.R. On 21-4-1999 at about 6-00 p.m. At Police Station Rawalakot in which he alleged that his maternal uncle, namely, Muhammad Nasim was serving in C.M.H. Rawalakot who after 'office hours met him on the day of occurrence at about 2-00 p.m. On the shop of Dil Hussain, who happened to be his grandfather.
Muhammad Nasim told him that he was proceeding to his home but, according to the complainant, when he reached his home, his maternal grandfather told him that Muhammad Nasim today has not reached back. He came out to inquire about Muhammad Nasim but found his dead body lying on the ground near the house of one Professor Tasadiq Hussain. He observed a bullet hit on the back side of the head of the deceased from which blood was oozing out. In the F.I.R.
It was further alleged by him that there was a civil dispute over a piece of land between the father of the deceased and the appellant Muhammad Siddique and one Karim. On this .Report a case under section 302, A.P.C. Was registered and later on, on the basis of the statement of one deaf and dumb lady namely, Nazia Rafiq, the police conducted the search of the culprit who was responsible for the death of deceased Muhammad Nasim. During the investigation Muhammad Azam, a prosecution witness, told the police that he saw Muhammad Nasim deceased going towards his home alongwith some household items and a cylinder of gas. He was followed by Rashid Iqbal, the principal accused, in the case (who has now compromised with the complainant party and has paid them Rs,4,00,000 as "Diyyat" and on account of this reason has been acquitted, as such, is not before this Court), accompanied by Muhammad Siddique and Muhammad Zayad, the two appellants before us. Muhammad Sajid also deposed before the police that at about 4-30 p.m.
Muhammad Nasim, the slain person in the case, purchased vegetables from his shop and went towards his home. Soon, thereafter, Rashid Iqbal accompanied by present appellants came at his shop. Rashid Iqbal purchased two oranges. He gave one of them to the appellant Muhammad Siddique. He also deposed that all the three accused persons had friendly relations with each other.
3. On the basis of these statements the three accused persons were apprehended by the police.
Rashid Iqbal was identified by 'deaf and dumb' lady, namely Nazia Rafiq. Khurshid Ahmed, father of deceased Muhammad Nasim, also deposed before the police that he had litigation spread over years with the appellant Muhammad Siddique over a piece of land. The mother of deceased, Shah Begum, in her statement recorded under section 161, Cr.P.C. Has deposed that appellant Muhammad Siddique had threatened her that he will not leave, Muhammad Nasim alive.
According to this witness, appellant No,1 had said that I c has got ten sons if one is sacrificed so what. Mst. Shaheen Akhter, the widow of slain Muhammad Nasim, in her statement under section 161, Cr.P.C. Has stated that she was threatened by appellant Muhammad Siddique that he will make her widow. Her statement was testified by one Mst. Zubaida, a prosecution witness, that in her presence Muhammad Siddique told Mst. Shaheen Akhtar that he will make her widow. She has further stated that the appellant was openly threatening that he has got ten sons whereas the deceased is the only son of his father, so he will furnish the story. Muhammad Yasin another prosecution witness in his statement has narrated the same story of threats of appellant No,1 that he will do away with the life of Muhammad Nasim deceased, who was the sole son of his father. On the basis of these statements and other corroborated material collected by the police during the investigation, the accused-appellants alongwith Rashid Iqbal were made to face trial before the District Court of Criminal Jurisdiction Rawalakot in a case under section 302/34, A.P.C. Read with section 13 of the Arms Act, 1965. The trial Court in the light of the prosecution evidence, put the charge of sections 302/109,. A.P.C. To the accused-appellant under section 242, Cr.P.C.
4, That statement of the prosecution witnesses, namely, Khurshid Ahmed and Nazia Rafiq, were recorded by the trial. Court when an application was moved by Rashid Iqbal for a compromise with the complainant party. The compromise was effected on the payment of Rs,4,00,000 and after payment the said accused was acquitted from the charge. Thereafter an application was moved by the present appellants before the trial Court under section 249-A, Cr.P.C. Seeking their acquittal on the ground as the main accused has admitted the offence and has paid `Diyyat' amount to the complainant on account of the compromise, therefore, there was no justification for their trial. After taking necessary proceedings the trial Court finally allowed their application vide its judgment, dated 27-4-2002 and ordered their acquittal. An appeal was filed before the Shariat Court by the complainant on the ground that the accused-appellant had abetted the offence and they killed the deceased Muhammad Nasim through Rashid Iqbal, therefore, there was no justification to extend the benefit of compromise between the legal descendants of deceased Muhammad Nasim with Rashid Iqbal to the accused-appellants in exercise of the powers under section 249-A, Cr.P.C.
The learned Judge in the Shariat Court vide judgment under challenge dated 20-12-2002 accepted his appeal and set aside the impugned order of acquittal recorded by the trial Court on 27-4-2002, with the directions that the trial Court shall proceed with the trial of the appellants in accordance with law. This judgment of the Shariat Court has been assailed in the present appeal.
5. Sardar Iqbal Hussain Khan, the learned counsel for the appellants, vehemently argued that the main accused has paid Rs,4,00,000 to the complainant party as `Dayyar, therefore, there is no justification for the trial of the accused-appellants. He further argued that in the light of the evidence of Nazia Rafiq, Rashid lqbal is responsible for the murder of deceased Muhammad Nasim, therefore, there was no justification for the learned Judge in the Shariat Court to set aside the order of the trial Court which order was passed in the light of the available record. He has criticized the statements of prosecution witnesses recorded under section 161, Cr.P.C. And tried to convince us that there is no probability of the accused-appellants being convicted on the statement of such witnesses. According to him, except these statements of interested witnesses, there is no other evidence connecting 'he accused-appellants with the offence. He further argued that no recovery has been made from the accused-appellants because the death of deceased was the result of fire-arm injury which was caused by Rashid Iqbal from whom the said weapon of offence was recovered by the police. The learned counsel also criticized Muhammad Jehangir, the prosecution witness, who was not initially cited as witness in the challan but subsequently, appeared before a Magistrate and got his statement recorded under section 164, Cr.P.C. In which he has deposed that deceased was chased by the appellants and Rashid Iqbal on the day of occurrence. He has further argued that the police made the accused-appellants and Rashid Iqbal answerable for a case under section 302/34, A.P.C. Read with section 13 of the Arms Act, 1965, whereas on the application of the complainant party the offence under section 109, A.P.C. Was added by the trial Court, therefore, if order of acquittal was not recorded by the trial Court in the offence, under section 109, A.P.C. Even then it neither committed any illegality nor irregularity justifying the interference of the Shariat Court in exercise of its appellate jurisdiction.
6. On the other hand, Syed Habib Shah, the learned counsel for the complainant, argued that Rashid Iqbal, who is not party to the present proceedings before this Court, was the friend of accused-appellants, who committed the offence in furtherance of the abetment and conspiracy of the accused-appellants who had openly declared that they would take the life of Muhammad Nasim. The learned counsel further argued that the murder of Muhammad Nasim committed by Rashid Iqbal was the result of common intention of all the three persons including the present appellants. According to him, Mst. Shah Begum, Mst. Shaheen Akhter, Mst. Zeba, Muhammad Yasin, Muhammad Azam, Makhan Din, Sajid and Muhammad Karim are important witnesses who still have not appeared in the Court. All the aforesaid witnesses have clearly connected the accused- appellants with the commission of offence in their statements recorded under section 161, Cr.P.C.
The learned counsel further argued that another witness Muhammad Jehangir in his statement recorded under section 164, Cr. ?.C. Has deposed that both the accused-appellants told him that they would take the life of Muhammad Nasim, and only after two hours of this threat Muhammad Nasim was murdered. According to the learned counsel, without recording the prosecution evidence the accused appellant cannot be acquitted. The learned counsel for the complainant supported the judgment under challenge with full force.
7. Raja lbrar Hussain, the learned 'Advocate-General, owned the arguments of the learned counsel for the complainant.
8. We have considered the respective arguments of the learned counsel for the parties and with utmost care gone through the record of the case. In the light of the circumstances of the case the accused-appellants were made to face trial in a case under sections 302 and 109, A.P.C. Read with section 13 of the Arms Act, 1965. The charge under the provisions of Penal Laws was put to them but they in their statements recorded under section 242, Cr.P.C. Denied their guilt as such, the prosecution was asked to lead its evidence. As rightly pointed out by the learned Judge in the Shariat Court that the accused-appellants, were not acquitted for the charge under section 109, A.P.C. In the light of the prosecution evidence Rashid lqbal, the principal accused, committed this offence on account of pre-concert and common design with the accused-appellants. In her statement recorded under section 161, Cr.P.C. Mst. Shah Begum, has blamed the accused-appellant Muhammad Siddique that he had threatened her that he will do away with the life of her son and ready to give sacrifice of one of his sons out of ten he has. Mst. Shaheen Akhter is alleged to have deposed before the police in her statement that the accused-appellants had threatened her that he will make her widow. Mst. Zeba, another prosecution witness, has approved the above referred version of Mst. Shaheen Akhter in her statement recorded under section 161, Cr.P.C. Muhammad Yasin, another prosecution witness, has deposed the same story. Muhammad Azam, Muhammad Sajid in their statements recorded under section 161, Cr.P.C. And Jehangir in his statement recorded under section 164, Cr.P.C. Have deposed that on the day of occurrence slain Muhammad Nasim after purchasing vegetables from Muhammad Sajid, the prosecution witness, proceeded towards his home and that he was followed by the accused-appellants and Rashid Iqbal. There is a statement of Muhammad Ghafoor, the complainant, that his maternal grandmother told him that she has heard Muhammad Siddique saying that Muhammad Nasim will never return to his home, therefore, she directed him to make a search of Muhammad Nasim who later on found his dead body lying near the house of one Professor Tasadiq Hussain, having bullet injury on the backside of his head through which blood was oozing out.
9. In the light of this evidence, in our view, the trial Court was not justified in law to invoke the powers under section 249-A, Cr.P.C. To record the order of acquittal in fvaor of the accused- appellants merely on the ground that co-accused has paid Rs,4,00,000 as `Diyyat' to the legal descendants of deceased Muhammad Nasim. The accused-appellants in the circumstances of the case are prima facie guilty of abetment and shared common intention with Rashid Iqbal which resulted in the death of Muhammad Nasim. The legal descendants of deceased Muhammad Nasim have not so far compromised with the accused-appellants, therefore, they were not entitled to claim the benefit of compromise which was effected between the complainant party and Rashid lqbal. The prosecution has got a lengthy list of twenty-three witnesses who have prima facie involved the accused-appellants with the commission of offence, therefore, the learned Judge in the Shariat Court was justified in law in setting aside the order of acquittal passed by the trial Court in fvaor of the accused-appellant.
' In view pf above, this appeal having no merit is dismissed. The trial Court is directed to follow the directions of the Shariat Court and proceed further with the trial in accordance with law. The parties are directed to appear before the trial Court on 3rd July, 2003. In the meantime the record of this case shall be transmitted to the trial Court.