' CHAUDHARY MUHAMMAD TAJ, J.-The above captioned two appeals arise out of the same judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 6-8-2002 as such are disposed of through this common order.
2. Criminal Appeal No, 21 of 2002 titled Raja Sarfraz Azam Khan and others v. The State and others has been filed against the order passed by the Shariat Court whereby the sentence of `Qisas' awarded by the District Court of Criminal Jurisdiction Bagh to appellant No,1 and sentences of three years rigorous imprisonment alongwith fine of Rs,20,000 each were awarded to appellants Nos.2 and 3. The sentence of `Qisas' was confirmed and the sentences passed against appellants Nos.2 and 3 were enhanced as ten years rigorous imprisonment alongwith fine of Rs,50,000 each, while accepting the reference and appeal filed for enhancement and dismissing the appeal filed on behalf of the appellants. The other Criminal Appeal No,24 of 2002 titled Muhammad Sagheer Khan v. Nazar Hussain and others was filed on behalf of the appellant-complainant against the acquittal recorded by the District Court of Criminal Jurisdiction Bagh and maintained by the Shariat Court for respondents Nos.1 to 5 and for enhancement of sentences of respondents Nos. 6 and 7 whose sentences were enhanced from three years rigorous imprisonment and a fine of Rs,20.000 each to ten years rigorous imprisonment and a fine of Rs,50,000 each by the Shariat Court.
3. The facts are that a case under sections 302/34 and 324/506, APC was registered on the complaint of Muhammad Sagheer Abbasi, the complainant, on 8-3-1996 at Bagh Police Station. It was stated that there was a dispute about supply of water between complainant and Sudhir son of Khan Afsar Khan. The complainant who had purchased the water pipes, were taken away by the accused on which a Tunchayae was convened where a decision was made but accused Sudhir and others did not act upon the aforesaid decision. On 8-3-1996 accused Sudhir and others again convened Tunchayar where Muhammad Ishaq, Muhammad Habib Khan and Muhammad Aslam Khan were arbitrators. They also asked complainant to join the Tunchayar on which complainant alongwith Muhammad Shabbir, his real brother, Muhammad Taj, Muhammad Aqedl and Muhammad Razzaq joined the `Punchayae convened in the veranda of Mosque. Before the complainant reached, Sudhir, Zahir, Sarfraz, Shamraz, Muhammad Shabbir son of Ashraaf Khan, Nazar Hussain son of Noor Hussain, Naseer, Murtaza and Muhammad Ramzan were present. During the `Punchayae Sudhir used harsh words. He was advised by the jurors to act upon the decision earlier made. The complainant told them that Sudhir and others took away the pipes and they were asked not to do so. On this, accused Sudhir, Zahir Ahmad, Shamraz, Sarfraz, Muhammad Shabbir, Nazar Hussain, Naseer and Murtaza went out of the Mosque abusing the complainant, who along with his brother Muhammad Shabbir and Muhammad Taj, came out of the Mosque. The accused who had already made a programme with a common intention attacked on them.
Accused Sarfraz, Zahir and Sudhir who were armed with pistols started firing. Sarfraz and Zahjr fired at Shabbir to kill him, while Sudhir fired at Muhammad Taj who was injured. The other accused threw stones and injured Aqeel and Muhammad Razzaq. The injured persons were taken to police station, Bagh when Muhammad Shabbir succumbed to the injuries. The police started investigation, collected evidence and incriminating material and thereafter challaned the case before the District Court of Criminal Jurisdiction Bagh. The trial Court after conclusion of the trial convicted and sentenced Sarfraz Azam Khan to `Qisas' while Sudhir and Zahir Ahmad were convicted and sentenced to three years rigorous imprisonment with a fine of Rs,20.000 each. The other accused challaned before the District Court of Criminal jurisdiction Bagh namely Shabbir, Nazar Hussain, Murtaza, Shamraz and Nasir Ahmad were acquitted of the charge. A further appeal by the appellants Sarfraz, Sudhir and Zahir against their conviction and sentences was filed before the Shariat Court of Azad Jammu and Kashmir while complainant also filed an appeal against acquittal and for enhancement of sentences of accused Sudhir and Zahir. The learned Chief Justice of the Shariat Court accepted the appeal to the extent of enhancement of the sentences awarded to Sudhir and Zahir which were substituted as ten years rigorous imprisonment with a fine of Rs,50,000 each while other judgment remained unchanged. The reference was also accepted.
Therefore, the present two appeals have been filed on behalf of the convict-appellants and by the complainant-appellant.
4. Mr. Abdul Majid Mallick, the learned counsel representing appellants Sarfraz Azam Khan and others, raised following points in support of the appeal:--
(i) That the prosecution has failed to establish any case through evidence against the accused- appellants and the other acquitted-accused persons, therefore, the orders passed by the trial Court and Shariat Court to the extent of conviction of the appellants are not maintainable;
(ii) that according to the site plan prepared by the prosecuting agency the allegation of firing attributed to the appellants is negated as the same shows that the injuries were caused by the complainant party;
(iii) that the statements of the prosecution witnesses suffer from major contradictions which make the case doubtful, therefore, no reliance could be placed on that evidence;
(iv) that the evidence of impartial witnesses, the three jurors, was withheld and not produced in the Court and only the interested witnesses who were not only related to the complainant party but were also inimical towards _ the accused persons were produced. It appears that the prosecution has deliberately withheld the evidence which caused serious doubts in the prosecution story. Even otherwise, it is safe to arrive at a conclusion that those independent witnesses were not prepared to support the prosecution;
(v) that it is admitted on behalf of the prosecution that both the parties received injuries during a free fight. The learned Chief Justice in the Shariat Court also held that there was a free fight between the parties. It was further observed that both the parties received injuries in the fight. It would also be important to mention that in a fight occurring in that manner it was impossible to determine the liability of any person from the crowd;
(vi) that according to the prosecution story the `Punchayae was convened at the instance of accused party which continued for a considerable time and thereafter the altercation took place between the parties which led both the parties to start fight outside the Mosque where the Tunchayar was convened. It shows that there was no premeditation;
(vii) that according to the prosecution story, the grievance which arose to the complainant party could be regarded a cause between them, therefore, it could hardly be said that the appellants were responsible for initiation of said free fight or causing fire-arm injuries;
(viii) that all the recoveries allegedly effected upon the accused persons, according to the prosecution evidence, were made before arrest of the accused persons, therefore, the case is doubtful and was concocted to rope in the accused persons;
(ix) that it was the case of the prosecution that a large number of people were present during free fight between the parties, therefore, production of only interested witnesses would not prove the case beyond reasonable doubt; and
(x) that both the Courts below after appreciating the evidence proceeded to acquit the accused- respondents Nos.l to 5. According to the prosecution evidence no case is made out against them.
In view of the settled principles of law that acquittal cannot be set aside on artificial grounds. The learned counsel referred to the following authorities in support of his contentions:--
(1) Allah Dawaya v. The State (PLD 1993 SC 35), (2) Lal Khan v. The State (1984 PCr.LJ 2263) and (3)
Manzoor v. The State (1993 SCM R 1624).
5. Khawaja Shahad Ahmad, who appeared on behalf of the complainant, while contradicting the arguments addressed on behalf of the appellants and to support the appeal for enhancement of the punishment awarded by the Shariat Court to convict-respondents Nos.6 and 7 and also to set aside the acquittal of respondents Nos. 1 to 5, argued in the following manner:--
(i) That the prosecution has successfully proved its case through direct and other corroboratory evidence. It was explained that the prosecution produced eye-witnesses supported by the medical and recovery evidence alongwith other incriminating material which is sufficient to establish a strong case against the accused persons;
(ii) that there was no free fight between the parties but the accused persons with the intention to kill carried their fire-arms to Mosque where `Punchayar was convened. They intentionally abused the complainant party and came out of the Mosque where they attacked upon them. Without any ambiguity the accused persons were nominated in the manner they committed occurrence, therefore, all the accused persons who with the common intention and object were members of the unlawful assembly as such were liable to be punished for capital punishment, therefore, acquittal of respondents Nos .1 to 5 was against law. Similarly, lesser punishment of convict- respondents Nos.6 and 7 was also against justice;
(iii) that it is not necessary to produce all the prosecution witnesses. The defence was at liberty to produce those witnesses who were left over by the prosecution in defence in case they were of the view that those witnesses would support them, therefore, no adverse inference could be drawn for those witnesses who were not produced by the prosecution;
(iv) that the eye-witnesses and other prosecution witnesses were neither related nor inimical towards the defence, therefore, the proposition of interested witnesses cannot come into play. Even otherwise, the evidence of interested . Witnesses cannot be thrown out but to read and consider it carefully, though in the present case there was no interested witness;
(v) that it is wrong to submit that the site plan suggests otherwise than the prosecution story in the case and similarly the argument of recoveries having been made before arrest of the accused persons is also based on surmises; and
(vi) that the trial Court and the Shariat Court have arrived at the conclusion that the accused party-was responsible for the murder of deceased person and also to cause injuries with the firearms to the other prosecution witnesses. The responsibility of each accused was also fixed, therefore, the interference of this Court is not warranted as none of the substantial legal point is raised. However, a judgment under law is required to be modified to the extent of those accused persons who were acquitted or awarded lesser punishment. The learned counsel referred to the following authorities in support of his contentions:--
(1) Saeedullah Khan v. The State (1986 SCM R 1027), (2) Wahid v. State PLD 2002 SC 62, (3) Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524, (4) Zahir Hussain Shah v. The State (2000 SCR 123), (5) Muhammad Ramzan v. The State and another 1997 PCr.LJ 1522, (6) Misri v.
State 1999 PCr.LJ 116 and (7) Shabbir Ahmad v. The State 1997 PCr.LJ 1539.
6. Sardar Rafiq Mahmood Khan, the Learned counsel representing the respondents in Criminal Appeal No,24 of 2002, adopted the arguments addressed by Mr. Abdul Majid Mallick and also argued that respondents Nos.1 to 5 were acquitted by the trial Court and their acquittal was upheld by the Shariat Court, therefore, there is a double presumption of innocence in their favour. It was also argued by him that enhancement of punishment by the Shariat Court keeping in view the allegation and nature of injuries was absolutely against the accepted principle of law. The learned counsel referred to the following authorities in support of his assertions:--
(1) Ghulam Sarwar v. The State (PLD 1979 SC (AJ&K) 88), (2) Muhammad Mumtaz Hussain and another v. Muhammad Arshad and 2 others 2001 PCr.LJ 225, (3) Muhammad Hanif Khan and another v. State and another 2001 PCr.LJ 827 and (4) Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644.
7. Raja Ibrar Hussain, the learned Advocate-General, supported the arguments of Kh. Shahad Ahmad, the learned counsel for the complainant-appellant.
8. We have heard the learned counsel for the parties and also gone through the record carefully.
The trial Court after conclusion of the trial proceeded to convict appellants Raja Sarfraz Azam Khan, Muhammad Sudhir Khan and Zahir Ahmed, while acquitted Nazar Hussain, Murtaza, Shamraz, Shabbir and Nasir. Appellant Sarfraz Azam Khan was convicted and sentenced `Qisas' under section 302, APC while the other convicts were awarded punishment of three years rigorous imprisonment along with a fine of Rs,20,000 each. The convict-appellants (in Criminal Appeal No,21 of 2002) filed their appeal before the Shariat Court of Azad Jammu and Kashmir while complainant Muhammad Sagheer, respondent No,2 in the appeal, also filed appeal for enhancement of the punishment awarded to appellants Nos. 2 and 3 and for setting aside the order of acquittal passed in favour of respondents Nos. 1 to 5 (in Criminal Appeal No,24 of 2002). A reference was also forwarded to the Shariat Court. The learned Chief Justice of the Shariat Court through a consolidated order dismissed the appeal filed on behalf of the convict-appellants while accepting the appeal filed by the complainant enhanced the punishment awarded to appellants Nos. 2 and 3, namely, Muhammad Sudhir Khan and Zahir Ahmed, to ten years rigorous imprisonment with a fine of Rs,50,000 each while maintained the acquittal order passed by the trial Court and thus the reference was also accepted.
9. The learned Chief Justice in the Shariat Court held in his order that there was a free fight between the parties. It was also observed that the occurrence is not disputed nor the presence of the accused persons and the complainant party as per the trend of cross-examination, was denied. However, it was maintained that liability in the case, in view of the circumstances, has to be fixed in light of the act of the accused persons individually keeping in view the role played by them.
It was further held that Sarfraz, Zahir and Sudhir, the appellants (in Criminal Appeal No, 21 of 2002) were proved to be equipped with the firearms and they actually used the same while deceased, Shabbir Ahmad, and Muhammad Taj, P.W., were unarmed and their liability, therefore, has to be seen in that perspective. Paras. Nos. 12 and 13 of the judgment are usefully reproduced:-- "(12) As far as other contention against the accused persons who are acquitted by the Court below are concerned, the prosecution evidence against them is of stoning and beating the complainant and others with kicks and fists. The accused persons at the same time have also suffered injuries along with the complainant party whose injury reports are also placed on the record. This suggests a free fighting, where free exchange of stones took place between the acquitted accused persons and injured persons belonging to complainant party and both the parties are injured. In a state of hurly-burly, it is difficult rather impossible to fix the liability on anyone as to who was injured by whom. It is better to err in favour of the accused than to convict an innocent person, the trial Court has, therefore, rightly acquitted them.
(13) According to the learned Advocate as all the accused persons are proved by the prosecution evidence to have attacked upon the complainant and they should be awarded the maximum sentence by setting the acquittal order. In the case in hand occurrence took place when the Jirga was being convened. Had all the accused persons connived with each other and premeditated to launch attack on the complainant party, the Jirga would not have been called as nobody commits offence by keeping eye-witnesses to watch it. It appears that during the Jirga some altercation took place between the parties which resulted in this unhappy incident. The altercation having gone out of control, everybody resorted to the means at his disposal. The case of Sarfraz, Zahir and Sudhir, who were armed stands on a different pedestal from the other accused persons who were not armed and are accused of stoning and not taking part in killing Shabbir or being equipped with fire-arms. The injured persons from the complainant party reciprocated stoning resulting in injuries to each other. In the absence of clear proof of conspiracy or premeditation, the common intention or object of killing the deceased by forming unlawful assembly cannot be assumed, hence, everyone of the accused persons is responsible for his own act."
10. Before adverting to the merits of prosecution evidence attacked by Mr. Abdul Majid Mallick while reading the important portions of the same during the arguments, we would like to attend certain legal points raised by the learned counsel. It was forcefully argued that the case was not proved against the appellants firstly because the impartial witnesses admittedly present in the Tanchayae particularly the jurors were not produced and their evidence was withheld which shows that those witnesses were not supporting the prosecution version instead the evidence of interested witnesses was brought on record. A perusal of the record shows that jurors of the `Panchayae were left over but the defence also did not produce the aforesaid witnesses, therefore, no adverse inference can be drawn as the prosecution is not bound to produce all the witnesses cited in the calendar but the defence can avail the opportunity of producing those witnesses if in its opinion they do not support the prosecution version. After a careful consideration, we are of the view that none of the witnesses was interested one. It will be important to mention that mere relationship with the deceased cannot be regarded, for a prosecution witness, as interested witness unless he is shown inimical towards defence. We would also like to observe that the evidence of any interested witness even if on record cannot be thrown away but it has to be appreciated with care and its corroboration is insisted, therefore, we do not find any substance in the point. Reliance in this regard may also be placed on a case reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 654. The relevant observations are reproduced:- "13 It may be observed that except Abdur Rashid, complainant, it has not been shown that the other witnesses, namely, Muhammad Siddique and Walayat Khan were related to the deceased, irrespective of the fact that the mere relationship is no ground for discarding the evidence of a witness. An 'interested' witness is one who falsely implicates the innocent person with the commission of offence with ulterior motive. Thus, a related witness would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime.
' The proposition finds further support from a case titled Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 where it was held:-- "10 It would not be out of context to note that there is no cavil with the proposition that the parties have got longstanding enmity against each other during course whereof they remained involved in cases of murder allegedly committed by them against each other. Learned High Court in view of such factual position rightly searched for independent corroboration. To ascertain whether the evidence furnished by both the P.Ws. i.e, Mst. Jallan and Sher rings truth or not. There is no gain in saying that the evidence furnished by interested witnesses ordinarily cannot be discarded merely for the reason that they had relationship with the victim/ deceased. However, for safe administration of justice it becomes the duty of the Court to look forward for corroboration of such evidence from independent sources with a view to explore truth for the purpose of reaching at a just conclusion .
11. It was also argued by the learned counsel for the convict-appellants that keeping in view the medical evidence and the statements of prosecution witnesses while appreciating site plan become untrue. It was maintained that prosecution story in view of those admitted facts becomes doubtful. So far as the contention of the learned counsel representing the appellants with regard to the allegation of firing shown in the site plan is concerned, in fact it is at variance with the medical evidence but we have to see that the prosecution produced no less than 13 witnesses in support of its version. The prosecution witnesses were injured in a fight which has been regarded a free fight by the Courts below and their presence was not doubtful as they were present in the `Panchayae. It is to be seen as to what would be the effect of the situation arose. It is a settled proposition of law that in such situation where eye-witnesses are available and their evidence of course rings true after the cross-examination any variation in the medical evidence would not affect the evidence of eye-witnesses which has to be relied upon. The case of Saeedullah Khan v. The State (1986 SCM R 1027) can be referred in support of the proposition where the same was resolved in the following words:-- ' We have perused the evidence on the record with the assistance of the learned counsel.
According to the version of the prosecution as disclosed in the F.I.R. It is undoubtedly true that it was stated that Mst. Gul Mewa was hit with the shot fired by the appellant on her back and the bullet passed through her body and came out on the front side from her chest. However, in his deposition in the Court Muzaffar Khan complainant described the injuries, received by the deceased in the reverse order, namely, that the shot hit her from the front on her chest. It seems that he was not contradicted by confrontation with what he stated in the F.I.R. The other eye- witness, namely Mueen Badshah while describing the occurrence stated with regard to the injuries received by the deceased.
10. After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed. So far as Mueen Badshah is concerned, his presence at the scene of occurrence is corroborated by the fact that he was also injured with the fire weapon and it is difficult to hold that he was not present at the scene of occurrence. In the circumstances of this case when he was being chased and running away in order to save himself from being killed by the successive shots which were being fired at him, it is not expected from him to describe with exactitude the details of the manner in which the deceased was injured, however, his testimony that it was the accused who fired at the deceased cannot be rejected on that account. Similarly the complainant whose' close relation was being attempted to be murdered in his presence, must be looking at the awful scene enacted in his presence with great amount of tension and confusion about the fate of the victim. Having regard to the circumstances the contradiction in the F.I.R. And the Police version with the evidence in Court seems to pale into insignificance. As observed by the High Court, in the extract reproduced above, there can be no doubt about the presence of these witnesses at the time of occurrence and their testimony fully implicates the appellant."
' The proposition was also resolved in a case reported as Zahir Hussain Shah and 3 others v. The State (2000 SCR 123) as under:-- .It therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration but in the present case the ocular evidence gets further support from ample circumstantial evidence
12. It was also argued that the learned Judge in the Shariat Court has held that there was a free fight between the parties with further observation that both the parties were injured but conviction was recorded against the appellants which cannot be maintained in view of the foresaid facts as well as lacking evidence of premeditation particularly when the 'Panchayat' was convened at the instance of accused party coupled with the fact that grievance arose to the complainant party for the allegation of taking away their pipes. It may be stated that the trial Court after appreciating the evidence in accordance with the settled principles of appreciation of evidence arrived at a conclusion that the prosecution has successfully proved the case against the appellants in Criminal Appeal No,21 of 2002 for inflicting firearm injuries to the deceased and prosecution witness resultantly Shabbir Ahmad succumbed to the injuries, therefore, conviction was recorded against them. The aforesaid view was upheld by the Shariat Court while maintaining the conviction.
However, the sentences awarded to Muhammad Sudhir and Zahir Ahmad were enhanced in view of the proved, allegation. Nothing has been brought before this Court which may show that there was any misreading or non-reading of the evidence and this Court is not obliged to appraise the evidence for any different view, thus, we do not find any merit in the submission. It may also be mentioned that an individual liability can be fixed keeping in view the allegation and evidence on record in a case of free fight, therefore, we also do not find any substance in the argument that conviction cannot be made in such like cases. To support the aforementioned proposition reference may be made to case reported as Shabbir Ahmad v. The State and another 1997 PCr.LJ 1539 where the same was resolved in the following words:- "(7) Re-appraisal of evidence is not a function of this Court. Once it is settled that there has been proper appraisal of the evidence this Court does not even draw conclusions different from those drawn by the first appellate Court and the trial Court. However, this Court does examine evidence to see whether there has been any gross misreading or non-reading which may have resulted in miscarriage of justice."
12. Kh. Shahad Ahmed, the learned counsel representing the complainant, vehemently argued that acquittal of respondents Nos.1 to 5 was against the accepted rule of evidence as on the same evidence the accused were convicted holding therein that the evidence rings true in the circumstances of the case. It has been held in the earlier part of the order that individual liability can be fixed keeping in view the circumstances of free fight. There is no allegation of carrying any arm or otherwise inflicting any injury except the minor injuries sustained by both the parties with fists. Additionally, both the Courts below arrived at a conclusion that the respondents are entitled to the acquittal which was allowed to them. We have no reason to differ with the findings recorded by the Courts below after appreciating the evidence as discussed above.
13. After giving deep thought, we are of the view that the Shariat Court has correctly convicted the accused-appellants except that the sentence of `Qisas' in view of the facts that there was no premeditation as `Panchayae was convened at the instance of the accused party which continued for a considerable time and thereafter due to some altercation the occurrence took place particularly when it was held by the Shariat Court that the accused would not like to carry such number of witnesses if they had made preparation for it. Secondly, the grievance for taking away their pipes arose to the complainant party and not to the accused. Therefore, we substitute the sentence of `Qisas' awarded to Sarfraz Azam Khan, appellant, to life imprisonment. The benefit of section 382-B, Cr.P.C. Is also extended to him as was done for the other appellants Sudhir and Zahir by the Shariat Court. With the above modification the order passed by the Shariat Court remains unchanged. Consequently, Criminal Appeal No,21 of 2002 is accepted to this extent. The other Appeal No,24 of 2002 filed by the complainant-appellant is dismissed.
YLR 595 [Lahore] Before ljaz Ahmad Chau4ry, J MUHAMMAD HAYAT and others---Appellants versus THE STATE---Respondent Criminal Appeals Nos.127, 176 and Crl. Rev. No,148 of 2002, heard on 13th July, 2004.
(a) Penal Code (XLV of 1860)--- ----S.308(1)---Appreciation of evidence--- Co-accused was not armed with any weapon at the time of incident and only role ascribed to him was that he had held deceased in Jappha while main accused armed with Khanjar had caused successive injuries on different parts of his body---Coaccused was not related to main accused who inflicted injuries to deceased---Both accused persons had no common intention to commit murder of deceased and no motive was ascribed to co-accused and he being Rajpoot by caste, was not related to main accused, who was Mossalli by caste---Role ascribed to co-accused was improbable and due to same, possibility of his false implication, could not be ruled out--- Prosecution had failed to connect co accused in occurrence for sharing common intention with main accused and role attributed to him had been disbelieved through medical evidence as well- --Benefit of doubt would go to co-accused--Conviction and sentence recorded against co- accused by Trial Court was set aside and he was acquitted of the charge extending him benefit of doubt. 599] A
(b) Penal Code (XLV of 1860)- ----S . 308---Juvenile Justice System Ordinance (XXII of 2000), Ss.2, 4 & 7---Appreciation of evidence---F.I.R. Was lodged with promptitude---Accused was attributed successive blows with dagger on person of deceased which proved fatal---Both complainant and other eye-witness were residents of same localit y--- Complainant was father of deceased and other eye-witness was not related in any manner to complainant or deceased, except that he belonged to Bradri of deceased---Trial Court had reached the conclusion that prosecution was able to prove case against accused, but Court had convicted accused under 5.308, P. P.C. On the ground that Qatl-i-Amd committed by accused was not liable to Qisas under S.306, P.P.C. As he was aged about 16/17 years---Accused had claimed that he being less than 18 years of age at time of alleged occurrence, should be tried by Court constituted under Juvenile Justice System Ordinance; 2000 and prayed for remand of case for de novo trial by said Special Court---Validity-Occurrence had taken place about one year prior to promulgation of Juvenile Justice System Ordinance, 2000 and case remained pending trial for more than one year after promulgation of said Ordinance, but during that period no application was moved on behalf of accused for transfer of his case to the said Court---Accused had failed to point out as to what prejudice was caused to him for such omission---Prayer of accused for de novo trial under Juvenile Justice, System Ordinance, 2000, was repelled, in circumstances---Accused was convicted by Trial Court under S.308, P.P.C., but proof of Qatl-e-Amd liable to Qisas as provided under S.304, P.P.C. Was not available in case and no proceedings for Tazkiyah-alShahood to test the veracity of eye-witness were undergone by Trial Court---Sentence in case could only be awarded to accused as Tazeer---View point adopted by Trial Court for convicting accused under 5.308, P.P.C. Was illegal as Qisas was not available in the case---Conviction of accused under S. 308, P.P.C. Was set aside and case was remanded to Trial Court for re-writing of judgment without recording any fresh evidence, within specified period. /pp. 600, 601] B, C, D & E ljaz Hussain v. The State 2002 SCM R 1455 and Faqii Ullah v. Khalil-uzZaman and others 1999 SCM R 2203 ref. Syed Sabir Hussain for Appellants.
Abdul Aziz Khan Niazi for the Complainant.
Syed Altaf Hussain Bokhari for the State.
Date of hearing: 13th July, 2004.
{{PAGE CRACK}} ' This judgment shall dispose of Criminal Appeal No,127 of 2002 filed by Muhammad Hayat and Criminal Appeal No,176 of 2002 filed by Abdul Ghaffar alias Doodu against the common judgment, dated 31-1-2002 passed by learned Sessions Judge, Khanewal whereby both the appellants were convicted under section 308(1), P.P.C. For committing Qatl-e-Amd of Waheed Anjum and sentenced to 14 years. R.I. Each as Ta'zir with a direction to pay Rs,1,00,000 each as compensation to the legal heirs of the deceased or in default thereof to further undergo R.I. For six months as well as to pay Diyat amounting to Rs,2,70,493 by each of them and Crl. Rev. No, 148-2002 filed by Muha ijad.
Asgher for remanding the ease learned trial Court for a fresh of section 382-B, Cr.P.C. To the appellants.
2. According to the tlrosec the complainant Muhammad Asghar got lodged the complaint at Police Stations Kachha Khooh on 27-4-1999 at about 10-00 p.m. By stating that he was labourer by profession and about 15/16 days earlier thereto his mother-in-law had undergone eye surgery.
Muhammad Hayat appellant his neighbourer was vagabond young man, who used to play deck at high volume which disturbed his mother-in-law Mst. Siftan Bibi. His son Waheed Anjum restrained said Muhammad Hayat many a times from playing deck at high volume but he did not abstain because of which there occurred quarrel between his son and Muhammad Hayat on 2/3 occasions. On the fateful day at about 8-00 p.m. The complainant alongwith his son Waheed Anjum went towards mosque for saying prayer. They reached the main door of the house, where the light was on. Muhammad Asghar and Muhammad Jamil were also standing near the door of the mosque for saying prayer. All of a sudden Muhammad Hayat and Abdul Ghaffar alias Doodu who were already sitting there under a pre planned scheme came in front of them while raising dagger. Abdul Ghaffar caught hold of complainant's son Whaeed Anjum and Muhammad Hayat Mussali gave repeated dagger belows on the chest, back and below right armpit of his son, who fell on the ground and smeared with blood. The complainant and Muhammad Jamil stepped forward to rescue his son but Muhammad Hayat and Abdul Ghaffar alias Doodu threatened them with dire consequences and both the appellants fled away while brandishing dagger. The complainant's son Waheed Anjum succumbed to the injuries when was being taken to the hospital for treatment.
3. After registration of the case, P.W. 10 Manzoor Ahmad, S . I. /Investigating Officer went to the hospital, prepared the injury statement and inquest report and then sent the dead body to mortuary through Liaqat Ali P.W.9 for post mortem examination. Also visited the spot and collected blood-stained earth from the spot in the presence of P.W.4. During investigation both the appellants were arrested on 13-5-1999 and on the same day Muhammad Hayat led to the recovery of blood-stained dagger which was taken into possession vide memo Exh: PH, which was witnessed by P.W.7 and P.W.10. After close of investigation, report under section 173, Cr.P.C. Was submitted in the Court.
4. At the commencement of trial copies of documents under section 265-C, Cr.P.C. Were supplied to the appellants, charge was framed against appellants, which was denied by them and prosecution in order to prove the guilt of accused/ appellants produced as many as 10 witnesses.
Ocular account was furnished by P.W.6, Muhammad Asghar and P.W.7 Muhammad Jamil. P.W.2 Dr. Umer Farooq had conducted the Post mortem examination and he found 5 injuries/wounds on the person of the deceased while P.W.10 Manzoor Ahmad S.I. Was the investigating Officer. The rest of witnesses are more or less of formal nature. Both the appellants in their statements recorded under section 342, Cr.P.C. Denied the allegations and to a question that "why this case against you and why the P.Ws have deposed against you?", Muhammad Hayat replied as under:-- "Actually it is a blind murder case. Deceased of this case was criminal minded person. He was law offender. Unknown person murdered him. He quarrelled with Hashim Ali in the result Hashim Ali injured him and his brother Yasin lodged F.I.R. Against the deceased and other co-accused vide F.I.R. No, 371 of 1997, dated 6-11-1991 under sections 337-A (ii)/337-F(i)/ 34, P.P.C. At Police Station Kacha Khuh on 6-11-1997.
' Azhar Shah is a big landlord of the locality. He has obtained a square of land under horse breading scheme and my father is his servant. On 14-9-1995 a bomb case F.I.R. No, 167 of 1995 under Explosive Act, 1908 was registered at P.S. Kacha Khuh. Two accused one Abdul Waheed and other one who was also Rajput by caste were booked and were awarded life imprisonment with the fine. Abdul Waheed accused in case F.I.R. No, 167 of 1995 is son-in-law of the complainant of this case. I have been involved by the complainant due to Mukhbari in the case F.I.R. No, 167 of 1995 against the complainant's brother-in-law to Azhar Shah and police and due to party faction of the village and old enmity of case F.I.R. No,167 of 1995 the complainant has involved me in this false case."
5. While the other accused/appellant Abdul Ghaffar alias Doodu to the same question replied as under:-- "The case is false and fabricated. I have not taken part in the occurrence. I have also not taken the deceased in the Japha. I have no motive against the deceased. I made no consultation with my co.
Accused Muhammad Hayat about this occurrence. There is party faction in our Chak and the complainant party was against us. I had pleaded my innocence through the investigation. Many respectables of the village appeared before the police alongwith their affidavits and stated that I have not taken part in the occurrence and that I am innocent. The complainant party denied to give oath or to take oath from me or of any respectable on my behalf. I am of tender age and the deceased was young and well built up person even otherwise in this way I could not take him into my Japha. All the story of the prosecution is false and fabricated. The P.Ws are inter se related, interested and were inimical towards me. They have stated falsely in the Court. I am innocent."
6. After hearing both the parties, the learned Sessions Judge, Khanewal has passed the impugned judgment of conviction and sentence against the appellants. Hence, all these matters.
7. Learned counsel for the appellants contends that both the appellants were less than 18 years of age at the time of alleged occurrence and due to the promulgation of Juvenile Justice System Ordinance, 2000 the case was triable by the Court constituted under the said Ordinance. It also contended that both the eye-witnesses were inimical towards the appellants; as such they were falsely implicated in the present case. It is further contended that the occurrence had allegedly taken place in very thickly-populated area but no independent eye-witness had been produced by the prosecution either before the police or at the trial to substantiate its case against the appellants and it clearly shows that it was a blind murder. It is lastly contended that it was a dark night and the appellants were falsely implicated in the present case merely on suspicion due to previous enmity.
8. On the other hand, learned counsel appearing on behalf of the complainant opposes this appeal and contends that according to the Birth Certificate appellant Muhammad Hayat was more than 18 years of age at the time of alleged occurrence and he has also moved application under section 428, Cr.P.C. For determination of age of said Muhammad Hayat, but he has illegally been convicted and sentenced under section 308, P.P.C. While considering him minor, otherwise his case is fully covered by section 302(b), P.P.C. And he should be sentenced to death as there was no mitigating circumstances warranting lesser punishment because it was a brutal murder. According to the learned counsel, even otherwise the prosecution has succeeded in establishing the guilt of the appellants through the statements of P. Ws 6 and 7, who were not interested witnesses as there was no previous enmity. He has prayed for remand of the case while accepting Cr1. Revision filed by the complainant.
9. The learned State counsel has also opposed both the appeals.
10. I have heard the learned counsel for the parties and also perused the record with due care and caution. First of all, I take up the case of Abdul Ghaffar alias Doodu appellant who has filed Crl..
Appeal No, 174 of 2002 against his conviction and sentence. Admittedly he was not armed with any weapon at the time of the incident and the only role ascribed to him is that he had held Waheed Anjum deceased in Japha while his co-convict Muhammad Hayat while armed with Khanjar had caused successive injuries on different parts of his body, P.W.2 Dr.'Umar Farooq during postmortem examination of the deceased Waheed Anjum found five incised wounds on body. Injury No,1 was on the front of right chest and below the right nipple while the remaining injuries Nos.2 to 5 were on the back of the deceased. P.W.2 admitted during the cross-examination that the person making Japha to the deceased even if was on the back side or front side of the deceased, he must have received injuries in this case. According to him the man while grappling the deceased from back side should have received injuries on his hand if the assailant was inflicting injuries on the front side of the deceased. He also admitted that there was no necessity in this case for having the deceased in his Japha by any person for causing injuries to the deceased and injuries could be inflicted to the deceased without Japha. According to him the deceased might have fallen down after receiving injury No,1, and injuries Nos.2 to 5 could be inflicted while the deceased was fallen on the ground.
P.W.6 Muhammad Asghar complainant during cross-examination stated that the deceased received injury No,1 when the appellant had caught hold of him from the front side whereafter he fell on the ground and he was caught hold from the shoulder.
'The appellant Abdul. Ghaffar is not related to co-convict Muhammad Hayat who inflicted injuries to the deceased. They had no common intention to commit the murder of the deceased as no motive is ascribed to the appellant Abdul Ghaffar and he being Rajpoot by caste was not related to Muhammad Hayat convict, who is Musalli by caste. The role ascribed to Abdul Ghaffar appellant is improbable and due to the same possibility of his false implication cannot be ruled. The prosecution has failed to connect Abdul Ghaffar appellant in the present occurrence for sharing common intention with the co-convict and the role attributed to him had been disbelieved through the medical evidence as well. It is well-settled law that benefit of doubt will have to go to the accused. As such Crl. A. No, 174 of 2002 filed by Abdul Ghaffar appellant is accepted, the impugned judgment to the extent of his conviction and sentence is set aside and he is acquitted of the charge by extending him the benefit of doubt. He is on bail and is discharged of the liability of surety bonds.
12. As far as the case of Muhammad Hayat appellant, who has filed Crl. Appeal No,127 of 2002 is concerned, according to the prosecution, the occurrence in the present case took place at 8-00 p.m. The Police Station was 8 miles from the place of occurrence, the dead body of the deceased after the occurrence was shifted to the hospital by the complainant where he died and then the complainant went to the Police Station and got lodged the F.I.R. At 10-00 p.m. The complainant fully explained that the F.I.R. Was got lodged with promptitude. The appellant Muhammad Hayat was attributed successive blows with dagger on the person of the deceased which proved fatal. Both the eyewitnesses P.W. 6 Muhammad Asghar father of the deceased and P.W.7 Muhammad Jamil were residents of the same locality. Muhammad Jamil P.W.7 is not related in any manner with the complainant or the deceased except that he belonged to the Bradri of the deceased. The learned trial Court has reached to the conclusion that the prosecution was able to prove the case against Muhammad Hayat appellant, but convicted him under section 308, P.P.C. On the ground that Qatl- i-Amd committed by him was not liable to Qisas under section 306, P.P.C. As he was aged about 16/17 years.
13. The contention of learned counsel for the complainant is that Muhammad Hayat appellant was more than 18 years of age at the time of the occurrence and he has filed Crl. Misc. Under section 428 Cr.P.C. For bringing on record copy of his birth certificate to prove the same. I have noticed that in the Saza slip, said Muhammad Hayat appellant was recorded to be less than 18 years of age and even in his statement recorded under section 342, Cr.P.C. He claimed him to be less than 18 years of age at the time of alleged occurrence, but the complainant, who had engaged a private counsel or the learned counsel appearing on behalf of the State did not file any application to rebut the same during the trial. Therefore, at this belated stage the application of the complainant cannot be accepted as the birth certificate, which he intends to be produced on record through additional evidence was earlier available, but he has failed to give any reason for not producing the same at the relevant time. Hence the application for additional evidence submitted by the complainant is dismissed.
14. On the other hand the claim of learned counsel for Muhammad Hayat appellant is that even according to the impugned judgment, said Muhammad Hayat was less than 18 years of age at the time of alleged occurrence, as such his case could only be tried by the Court constituted under the Juvenile Justice System Qrdinance, 2000. He has prayed for remand of the case for de novo trial by the said Special Court. Admittedly, the occurrence in the present case took place in the year; 1999 before the promulgation of Juvenile Justice System Ordinance, 2000. The case remained pending trial for more than one year after the promulgation of said Ordinance, but during this period no application was moved on behalf of Muhammad Hayat appellant for transfer of his case to the Court concerned. Moreover, the learned counsel for the appellant has failed to point out as to what prejudice was caused to the appellant by such omission. In view of the case-law laid down by the august Supreme Court of Pakistan reported in Ijaz Hussain v. The State (2002 SCM R 1455), the relevant portion whereof is reproduced as under:-- "The occurrence in the present case had taken place before the promulgation of Juvenile Justice System Ordinance, 2000, under which the trial of a person less than the age of 18 years is held by superior Court established under the said Ordinance but a juvenile offender is not entitled to claim lesser penalty on a capital charge as of right under said Ordinance. In .Any case, the trial Court in the present case was conducted before the promulgation of the above said Ordinance, therefore, the procedure under the said Ordinance for determination of age of an accused would be relevant but the age of an accused mentioned in the statement under section 342, Cr.P.C. If remained unrebutted, the presumption of correctness would be attached to the age given in the statement under section 342, Cr.P.C. Which is apart of judicial record."
' The prayer for de novo trial by the Court constituted under the Juvenile Justice Ordinance, 2000 is repelled.
15. So far as conviction awarded to Muhammad Hayat appellant under section 308, P.P.C. Is concerned, admittedly the proof of Qalt-e-Amd liable to Qisas as provided under section 304, P.P.C, was not available in the present case and no proceedings for Tazkiyah-al-Shahood to test the veracity of the eye-witness were undergone by the learned trial Court. As such in the present case the sentence could only be awarded as Ta'zeer and the view adopted by the learned trial Court for convicting Muhammad Hayat appellant under section 308, P.P.C. Is illegal as Qisas was not available in the present case. In forming this view, I am fortified by the case-law reported in Faqir Ullah v. Khaliluz-Zaman and others (1999 SCM R 2203), the relevant portion thereof is reproduced as under:-- "In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment ,to the offender keeping in view the circumstances of the case.
Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances. "
17. For the foregoing reasons, the conviction of the appellant Muhammad Hayat under section 308, P.P.C. Is set aside' and case is remanded to the learned trial Court for rewriting of judgment keeping in view the above case-law laid down by the august Supreme Court of Pakistan as under Article 189 of the Constitution the same is binding on all the subordinate Courts including this Court. The learned trial Court needs not to record any fresh evidence. The process shall be completed within one month after the receipt of copy of the judgment, of course while affording equal opportunity of arguments to both the parties and without being influenced by the findings of this Court or the impugned judgment, on merits. Cr1. Appeal No, 127 of 2002 filed by Muhammad Hayat appellant with the above direction stands disposed of. In the meanwhile Muhammad Hayat appellant will remain in jail and produce before the learned trial Court on the date fixed by it.
18. In view of the above Criminal Revision No, 148 of 2002 need no further comments as Abdul Ghaffar appellant has been acquitted of the charge to the extent of Muhammad Hayat appellant the case has been remanded to the learned trial Court for re-writing of judgment. As such the same is dismissed.