' The two appellants namely Ahmed son of Imam All, his maternal Cousin Nazir son of Bashir and former's brother co-accused Jaffa, were tried by an Additional Sessions Judge, Faisalabad on a capital charge for the murder of Kameer, real uncle of Ahmed appellant ; vide judgment dated 21st November, 1978, co-accused Jafar has been acquitted while the present appellants on being found guilty have been sentenced to imprisonment for life and a fine of Rs, 5,000 each or in default, as the case may be, to undergo further rigorous imprisonment for rwo years.
2. They have appealed.
3. Occurrence allegedly, took place in the dhari of Ilyas in Chak No, 357/GB Police Station Jaranwala, on 8th May, 1976 at 9/10 p. m. Zulfigar (not examined at the trial) reported the matter to the police at 2-30 p. m. After mid-night on 9th May, 1976. P. I. R. Exh. P. M. Was prepared by Mansab Khan A. S.
1. (P. W. 11).
4. Prosecution case in brief is that four days before the occurrence complainant Zulfiqar, his sister's husband Kameer deceased, Yousaf P. W. Had gone to Chak No, 357/GB to help Ilyas, their acquaintance in thrashing his wheat. They were staying in the Dera of Ilyas. At the time of occurrence, after taking the evening meals, they were sitting on cots in the dhari of Ilyas talking. It was a moonlit night. All of a sudden, the two appellants armed with 12 bore guns and co-accused Jafar armed with a dang appeared there. Appellant Ahmad shouted at the deceased saying that he would be taught a lesson for occupying the lands of his aunts and uncle Nawab and simultaneously fired at him ; shot hitting him On his right buttock. Appellant Nasir fired a second shot hitting the deceased again on the right buttock. Jafar attacked Zulfiqar complainant with his stick and gave him a blow on right arm. Assailants then made good their escape. Kameer deceased succumbed to the injuries at the spot. Complainant leaving the others with the dead body proceeded to the Police Station Jaranwala where on his statement, as noticed already, case was registered after mid-night on 9th May, 1976.
' This was a motivated crime. The deceased, appellant Ahmad's father Mst. Sabi, Mst. Jawai, Mst.
Bhudhai and Nawab are brothers and sisters inter se. They had inherited landed property from their father. Deceased got the share of Mst. Sabi etc. Mutated in his name ; the appellants were demanding the share of their father out of this land.
5. Necessary investigations in this case were conducted by Mansab Khan A. S. I. (P. W. 11). He visited the spot and inter alia took into possession two crime empties P. 5/1-2 and made into a sealed parcel vide memo Exh. P. P. The two appellants and co-accused Jafar were arrested by him on 10th May, 1976. Recoveries of sata P. 8 from co-accused Jafar, gun P. 1 from appellant Ahmad and gun P.
2 with four live cartridges P. 3/1-4 from Nasir appellant were effected on the same day (10th May, 1976) ; these were taken into possession vide memos Exh. P P C/1 and P D, respectively. Zulfiqar complainant was found injured, he prepared his injury statement Exh. P.
0.
6. Dr, Khurshid Ahmed Khan (P. W. 7) conducted post-mortem examination on the dead body of the deceased on 9th May, 1976 at 12 noon. He also, medically examined Zulfiqar complainant at 3- 00 p,m., the same day. Deceased was found to have suffered two fire-arm injuries-scorched fire- arm wound li" x 1/2" x not probed on outer side right buttock ; scroched fire-arm wound 1" x 1/2" x not probed on hack of right buttock.
' Both wete inlet wounds. Pellets were palpable in front of abdomen 011 left side. Perotoneum was perforated and full of blood. Small and large intestine were perforated. Four pellets were found from within the abdominal wall and two pellets from inside the abdominal cavity. Semi-digested food was found in the stomach. Death in his opinion occurred due to shock and internal bleeding resulting from the injuries which were sufficient individually to cause death in the ordinary course of nature. Death in the opinion of the doctor occurred within half an hour of the injuries and post- mortem examination was performed after 15 hours of death.
' Zulfiqar complainant was found to have suffered a contusion 3" x 3/4" on inner side of right arm. It was simple in nature and caused with a blunt weapon, within 18 hours.
7. Appellants at the trial admitted their inter se relationship but refuted the accusations and pleaded innocence. They denied the recoveries and informed the Court that they had been acquitted in the case under Arms Ordinance. They produced copies of mutations Exh. DE, Exh. Exh.
DG and Exh. DH, in their defence. In this Court an application praying for the production of copies of the judgments of the learned Magistrate acquitting the appellants in the cases under Arms Ordinance by way of additional evidence, was moved after the hearing of the appeal had concluded. I rejected the application vide order dated 19th June, 1979 taking the view that no such application could be entertained after hearing of the appeal had concluded and that in any case I could take judicial notice of the judgments.
8. Prosecution at the trial relied on the ocular evidence given by Amir (P. W. 9) and Yousaf (P. W. 10) ; the motive ; recoveries and finally the medical evidence.
9. Learned trial Judge has accepted the prosecution case in its totality. He has accepted the motive set up. Amir P. W. 9 was declared hostile ; notwithstanding he has used his evidence as supporting evidence to some extent. He has mainly relied on the testimony of Yousaf (P. W. 10) and sought corroboration from incriminating recoveries. He has acquitted co-accused Jafar because part attributed to him was trivial and also, because Zulfiqar complainant has not appeared at the trial. He has taken young ages of two appellants into consideration for awarding lesser sentence of life imprisonment under section 302, P. P. C.
10. I have heard the learned counsel for the parties and gone through the record of the case with their assistance,
11. I propose, at the outset, to dispose of the contention of the learned counsel that as the appellants were acquitted of the charge under section 13 of the Arms Ordinance, 1965 by a court of competent jurisdiction, the judgment became final and the learned trial Judge could not use the recoveries of guns against them. The argument in its first impression though alluring, is without merit when examined closely, Such a judgment, us a term of art falls in the category of 'Previous Judgment', Under Section 40 of Evidence Act, the existence of any judgment, order or decree Which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court Ought to take cognizance of such suit or to hold such trial.
Previous judgment, therefore, is relevant when it is tendered in evidence in support of a plea of res judicata in civil cases, or of autre fois acquit or autre foss convict in criminal cases. As provided in section 403, Cr. P. C. And section 26 of the General Clauses Act and now as guaranteed by Article 13
(a) of the Constitution a Court cannot try an accused person for an offence if he has been previously tried by a competent Court for the same offence, nor can a person be tried for any other offence for which he could have been tried and convicted in previous trial. Previous judgments, as embodied in section 43 of the Evidence Act, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgments etc. Is a fact in issue, or is relevant under some other provision of the Act. Previous judgments by a Magistrate acquitting the appellants of the charges under the Arms Ordinance, therefore, are not relevant in all subsequent trial for the offence of murder. Learned trial Judge, therefore, A was fully justified in forming his own view of the evidence before him.
12. Before parting with this aspect I intend to examine a question of general public importance. It is being noticed that cases under the Arms Ordinance regarding the recoveries of illicit arms effected during the investigation of main cases are not sent, may be on the assumption that it is no more possible due to amendments introduced in the Code of Criminal Procedure by Law Reforms Ordinance, 1972, to Sessions Court for trial. There is thus possibility of conflict of judgments, as in the instant case, in this regard. Conflict of judgments on questions of fact relating to the same occurrence may not be, as discussed above, of any legal consequence, yet it does not appear to be proper on the ground of public policy. I have therefore, surveyed the provisions of aw relating to the jurisdiction of the Sessions Judge to try such cases.
' Offences under the Arms Ordinance fall under the category of "offences under any other law".
Under section 28 subject to any other provision of the Cr. P. Code any offence under the Pakistan Penal Code may lie tried by the Court of Session and under section 29 subject to the other provisions of the Code any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court. Under subsection (2) when no Court is so mentioned, it may be tried by this Court or subject as aforesaid by any Court constituted under the Code by which such offence is shown in the 8th column of the Second Schedule, to be trouble. According to the 8th column of the Second Schedule, offences against other laws if punishable with death or imprisonment for life or imprisonment for seven years or upward, are trouble by a Court of Session and those punishable with imprisonment of three years or upward but less than seven years are trouble by a Magistrate of First Class. Offence under section 13 of the Arms Ordinance is punish- able with imprisonment for a term which may extend to three years.
' There is, therefore, no doubt that the offences punishable under the Arms Ordinance are trouble by a Magistrate.
13. Section 190, Cr.P.C. Deals with cognizance of offences by a Magistrate. Under subsection (3) of this section a Magistrate taking cognizance under subsection (1) of an offence trouble exclusively by a Court of Session, shall, without recording any evidence, send the case to the Court of Session for trial. Section 193(1) of the Code embodies, "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190(3), Cr. P. C." The rule, therefore, that a Session Court cannot take cognizance of the case unless the same has been sent to it by a Magistrate under subsection (3) to section 190, Cr. P. C., is not absolute. A Session Court can take cognizance of cases otherwise, also, if it is so provided by the Code or by any other law for the time being in force. This Court in Muhammad Aslam and 2 others v. Mst. Nathu (1) and Quetta High Court in Farid v. Allah Wasaya (2) no doubt have taken the view that Court of Session is not a Court of original jurisdiction and can take cognizance of the cases only when sent to it by a Magistrate under section 190(3), Cr. P. C. But the point being examined presently was not raised in these cases.
' Section 347 of the Code has been substituted by the Law Reforms Ordinance, 1972. This section as it originally stood reads as follows r.-- "347(1). If in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained.
' In the present form this section however, reads thus :- "347. If in any trial before a Magistrate before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial."
14. There is abundant case law under section 347, Cr. P. C., before its repeal, that a Magistrate notwithstanding that he had jurisdiction to try the offence, could commit the accused to the Sessions Court for trial at any stage of the inquiry or trial provided the case was one which ought to be ttied by the Court of Session, In Ghani Yacub v. Emperor (3) some of the accused persons were charged for an offence triable by a Court of Session and the others for an offence triable by a Magistrate as a summon case. It was held that there was no illegality in the order of the Magistrate who had committed all the accused to Session Court for trial. The grounds, for instance that a complicated question of law arises or that some connected matter is already before the Court of Session etc. Were generally accepted for committing the case to the Session Court for trial.
Reference can be made to a Full Bench judgment in the case of Rex v. Matoley (4).
' On the same reasoning a Magistrate after taking cognizance of a case triable by him, and before signing the judgment can send the same to the Court of Session or the High Court for trial, if the circumstances so warrant. The presumption, therefore, that a Session Court can try only
(1) PLD 1977 Lah. 535 (2) PLD 1979 Quetta 156
(3) 21 Cr. L J 791 (4) AIR 1949 All. ' those cases which are sent to it for trial under section 190 (3), Cr. P. C. i, not well founded. I am, therefore, inclined to hold that to avoid conflict . Of judgments or for other recognized grounds, cases trouble by Magistrat - can be sent under section 347 of the Code for trial to the Session Court.
15. Now I advert to the merits of the case in hand. As noticed above, prosecution has examined Amir (P. W. 9) and Yousaf (P. W. 10) to give ocular account of the occurrence. Zulfigar P. W. Has not been examined as having been won over. After the occurrence appellant Ahmad had given the hand of his sister in marriage to him. Amir P. W. Is son of Ilyas in whose dhari the occurrence is stated to have taken place. He has supported the prosecution case in his examination-in-chief but conceded certain points in favor of the defense in the cross-examination. He was declared hostile and cross-examined by the Public Prosecuti,e, Yousaf P. W. However, has supported the prosecution case. He is maternal uncle of the wife of the deceased. Even Amir P. W. Has admitted that Yousaf P. W. Had come to their dhari to help them in thrashing the wheat crop. Presence of Yousaf P. W. At the spot, therefore, is fully established. Even if testimony of Atnir P. W. Is excluded from consideration, reliance can safely be placed on the evidence of Yousaf P. W. Unreservedly, Learned trial Judge has considered the ocular evidence at great length and I am inclined to agree with him. Above all, ocular testimony is corroborated by the recovery of guns at the instance of the two appellants.
' Bhai Khan P. W. 6 is the witness of the recoveries inter alia of empty cartridges from the spot. He is real uncle of appellant Ahmad and co-accused Jafar. These recoveries were effected on 9th May, 1976. The cartridges were sealed into a parcel. There is, therefore, no difficulty in accepting this recovery. Though he has admitted that he is opposed to the accused yet one cannot lose sight of fact that he is real uncle of appellant Ahmad and Jafar co-accused. Recovery of the guns was effected in the presence of inter alia Muhammad Ibrahim P. W. Guns were sealed into a parcel separately. This witness is distantly related to Allah Bakhsh, a relation of Kamir deceased. But in cases where accused and the corn. Plainant party are closely related, mere relationship of the recovery wit, ness with the deceased is not of much consequence. Learned trial Magis. Trate who tried the appellants under the Arms Ordinance gave great importance to miss-statement by the witness of the number of the Chak. Learned trial Judge has taken note of this. In any case judgment of the Magistrate, as already held is not relevant in this case. Learned trial Judge was justified to form his own view of the evidence before him. The empties have been found wedded with the guns recovered. The objection, such as, that two of the assailants having filed one shot each, two empties could not be found at the spot, has fully been considered by the learned trial Judge. The recovery of the guns, therefore, provides corroboration to the ocular testimony. Deceased had suffered two fire arms injuries and therefore, medical evidence too, is not in conflict with the ocular evidence.
16. Motive in the case also stands established. Yousaf P. W. Has deposed about it. His statement, moreover, is corroborated by the revenue record brought on the file. Even the two appellants in their statements under section 342, Cr. P. C. Have admitted that K.Ameer deceased got the land of the ladies, mutated in his own name. In our rural society the Muslim rule of inheritance giving shares to the females, is not being accepted ip letW 4nd spirit. Maie relations very often device ways t9 manage that their female relations do not get share in the land. Deceased having succeeded in getting the lands of his sisters mutated, it can safely be presumed that the brother who was not favoured by the sisters had a grudge with the deceased. I have, therefore, no hesitation in holding that the learned trial Judge has rightly accepted the motive set up by the prosecution.
17For all that has been stated above, 1 feel that the prosecution has been able to establish its case against both the appellants beyond doubt. No exception, therefore, can be taken to their conviction. This appeal has no merits and is dismissed accordingly. The conviction and sentences awarded to the appellants, are maintained.