' JUSTICE ABDUL HAMEED DOGAR (CHAIRMAN).---Petitioner Rashid Ahmed seeks leave to appeal against judgment, dated 15-10-2003 passed by learned Federal Shariat Court, Karachi Registry whereby Criminal Appeal No.1110-L of 1999, filed by condemned prisoner Amanat Ali, Criminal Appeal No.111-L of 1999 filed by petitioner Rashid Ahmed, Criminal No.112-L of 1999 filed by condemned prisoner Safdar Hussain Shah were dismissed and appeal of Sajid Hussain who died during pendency of appeal got abated while no appeal was filed by Razzaq Proclaimed Offender before Federal Shariat Court.
2. Precisely the case as unfolded in the F.I.R. Lodged by complainant Mst. Riffat Bibi recorded by Muhammad Tufail Hayat, S.H.O. Police Station Sabzpir on 10-7-1988 is that she was abducted prior to the present incident by accused Amanat Ali and was kept in confinement for 17 days in a house at Shandara. She slipped away from the said house and came to his native village. On 2-7-1988 she lodged a report at police station against accused Amanat Ali and his father. On the night between 9/10-7-1988, when she was sleeping with her mother, brothers and sisters on the roof of their house while her father was asleep in the courtyard at about midnight they heard a fire-shot and woke up. They saw accused Amanat Ali, petitioner Rashid Ahmed, Abdul Razzaq and Mehmood armed with Chhuri while Safdar Hussain Shah with gun. And Sajid Hussain Shah with rifle present in their courtyard. Safdar Hussain, co-convict and Sajid Hussain Shah accused (since dead) fired one shot each, Mst. Naziran Bibi came down in the courtyard from the house of the roof and raised alarm. Co-convict Amanat Ali and absconded accused Abdul Razzaq gave Chhuri blown to her father deceased Nazir Ahmed. Her mother Mst. Naziran Bibi tried to save his life but was also injured by Mehmood with Chhuri. After causing the death of Mst. Naziran Bibi, they said that since Mst.
Riffat Bibi was not traceable, therefore, they should go to the house of Mubarik Ali and take away his daughter Mst. Sajida as it was at his instance the case of abduction was registered, against them. Whereafter they went to the house of Mubarak Ali and abducted Mst. Sajida.
3. In this case, initially Amanat Ali, Safdar Hussain, Sajid Hussain, Mehmood Akhtar, petitioner Rashid Ahmed, Abdul Razzaq were sent up to face trial. Out of whom Amanat Ali and Abdul Razzaq were sentenced to death whereas Safdar Shah, petitioner Rashid Ahmed and Sajid Hussain were sentenced to life imprisonment. Co-accused Mehmood Akhtar was not arrested as such his case was separated whereas Abdul Razzaq absconded.
4. Prosecution in order to establish its case examined as many as 19 witnesses.
5. On autopsy of deceased Nazir Ahmed Dr. Muhammad Imdad Aasi (P.W.1) observed following injuries:-- "External injuries
(i) Stab wound 3 x 2 x 11 c.m. On the root of left lateral side of neck just above the left clavical on the middle portion.
(ii) Stab wound 5 x 2 x 4-1/2 c.m. Oval shaped on the lateral side of right shoulder.
(iii) Incised wound 3-1/2 x 1 c.m. At a distance.
(iv) Scratch 15 c.m. On the front of chest.
(v) A scratch 6 c.m. On the front of chest on right side, 7 c.m. Below injury No.4.
(vi) Abrasion 1 x 1/2 c.m. On the tip of nose.
' On dissection, under injury No.1, left carotid artery was ruptured (cut). On further dissection, thorax cavity was full of blood and left lung was punctured on backside on its upper portion. There was no other abnormality detected in other organs. The probable time between injuries and death was immediate and that between death and post-mortem was 30 hours."
6. Dr. Ghulam Abbas Bajwa (P.W.2) examined Mst. Naziran Bibi and found following injuries on her person:--
(1) Contusion 4 x 4 c.m. With swelling on whole of the right side of face and both eyelids. Contusion was just lateral to left eye involving lateral part of both eyelids.
(2) An incised wound 2-1/2 c.m. x 1/2 c.m. On backside right chest on inferior and if scapula. Depth of the wound was to muscle level.
(3) Contusions 2 x 1 c.m. On backside of left chest blackish in colour.
(4) Contusion 5 x 2 c.m. On right buttock blackish in colour.
(5) Contusion 3 c.m. x 2 c.m. Blackish in colour on left buttock.
(6) Contusion 7 c.m. x 2 c.m. On backside of left lateral chest blackish in colour.
7. Blood-stained earth, four empties of bullet .12 bore gun, two empties of bullet .7 mm rifle were recovered from the place of occurrence whereas from the house of Mubarik three empties cartridges of .12 bore gun were recovered, which, were also taken into possession.
8. On 10-7-1988, co-convict Safdar Hussain Shah, co-accused Sajid Hussain Shah, (since dead) petitioner Rashid Ahmed and Mehmood Akhtar proclaimed offender were apprehended by police and from their possession abductee Mst. Sajida was recovered while she was being taken into a car.
9. Abdul Razzaq was arrested on 17-7-1988 and on his pointation blood-stained Chhuri was recovered. Amanat Ali was declared proclaimed offender and was arrested by Shafique A.S.-I.
From Faisalabad who led to the recovery of Chhuri from his Haveli.
10. Petitioner in his statement under section 342, Cr.P.C. Denied the case of prosecution and adopted the statement of condemned prisoner Safdar Hussain Shah given by him under section 342, Cr.P.C. He did not opt to examine himself on oath as required under section 340(2), Cr.P.C.
However, he produced Muhammad Rashid (D.W.1) and Haji Shukar Din (D.W.2) in his defence.
11. On the conclusion of trial, petitioner, co-convict Safdar Hussain Shah, accused Sajid Hussain Shah, (since dead), co-convict Amanat Ali and Abdul Razzaq, absconded accused were convicted and sentenced as
(1) Under section 148, P.P.C. All accused were sentenced to 2 years' R.I. Each.
(2) section 324/149, P.P.C. All the accused were sentenced to 2 years' R.I. With fine of Rs,2,000 each or in default whereof to undergo 6 months' R.I.
(3) Under section 302/149, Accused Amanat Ali and Abdul Razzaq were sentenced to death each whereas co-convict Safdar Hussain Shah, accused Sajid Hussain Shah (since dead) and petitioner Rashid Ahmed were sentenced to imprisonment for life each with fine of Rs,20,000 each in default whereof to undergo 2 years' R.I. Each;
(4) Under section 364, P.P.C. All the accused were sentenced to 10 years' R.I. With fine of Rs,5,000 each in default whereof to further undergo 1 year's R.I.
(5) Under section 449, P.P.C. All the accused were sentenced to 10 years' R.I. Each with fine of Rs,2,000 each or in default to undergo 1 year's R.I.
(6) Under section 452, P.P.C. All the accused were sentenced to 5 years' R.I. Each with fine of Rs,2,000 or in default whereof to undergo 6 months' R.I.
Benefit of section 382-B, Cr.P.C. Was extended to all accused.
12. On appeal, the learned Federal Shariat Court maintained the conviction and sentence of petitioner and co-convict Safdar Hussain Shah but reduced the sentence of death of co-accused Amanat Ali to imprisonment for life vide impugned judgment.
13. We have heard Mr. Sanaullah Zahid, learned counsel for the petitioner and Raja Saeed Akram, learned A.A.-G. Punjab on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.
14. Learned counsel for the petitioner mainly contended that incident being of dark night is unseen one. Petitioner has been falsely implicated in this case due to fact that he was friend of Safdar Hussain Shah and others. According to him, petitioner was not previously known to the complainant and eye-witnesses as he had nothing to do with the affairs of the co-accused in the earlier case. In such circumstances, he prayed for reduction of the sentence of the petitioner particularly in view, of compromise arrived at, between the petitioner and the legal heirs of deceased.
15. Learned counsel appearing on behalf of State vehemently opposed the above contentions and while supporting the impugned judgment contended that partial compromise cannot be allowed.
16. In order to establishment prosecution has brought on truthful and convincing evidence of complainant Mst. Riffat Bibi injured/eye-witness Naziran Bibi and abductee Sajida Bibi. It has been proved that petitioner has played pivotal role in the commission of murder of deceased Nazir Ahmed by forming unlawful assembly and with common object entered into the house of deceased. He has been assigned specific role of kidnapping Sajida Bibi daughter of Mubarik on the pretext that Mubarik had played a major role in the early case of abduction of Mst. Riffat Bibi at the hands of Amanat Ali accused. Mst. Sajida victim while narrating the incident has clearly deposed at the trial that while she was being carried in the car after abduction, was recovered from that car and petitioner and other accused were also arrested by police from the car. Irrespective of above, learned counsel could not refer any misreading, non-reading or illegality in the impugned judgment warranting interference by this Court.
17. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
18. Since it is not a case of simplicitor murder but is coupled with kidnapping of Mst. Sajida Bibi, which being an offence against society is not compoundable. Hence, compromise application is