' IJAZ AHMAD CHAUDHRY, J.--- Through this consolidated judgment, I intend to dispose of Criminal Appeal No,595 of 2004 filed by Shehbaz appellant against his conviction and Criminal Revision No,388 of 2004 filed by Kashif one of the eye-witnesses seeking enhancement of sentence awarded to Shehbaz appellant as both these matters have arisen out of the same judgment dated 1-4-2004 passed by the learned Additional Sessions Judge, Gujranwala whereby the appellant had been convicted under section 311, P.P.C. And sentenced to R.I. For 14 years and under section 308, P.P.C. The appellant was further directed to pay Diyat amounting to Rs,2,50,000 to the heirs of Rafique deceased. The appellant was also directed to pay Rs,50,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo S.I.
For six months. Benefit of section 382-B, Cr.P.C. Was also extended to him. It is pertinent to point out here that through the same judgment co-accused namely Mst. Sajida Parveen and Muhammad Bashir were acquitted of the charge by extending benefit of doubt to them.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.P.A.) got lodged by Muhammad Iqbal complainant (P.W.7) are that complainant Muhammad Iqbal (P.W.7) was resident of Chah Soiyan Wala, Shaheen Abad and employed with Corporation. His brother-in-law
(Sala) Muhammad Rafique was married to Mst. Sajida for about 20 years ago, Two sons and four daughters had born from their wedlock. There had been consistent dispute between the spouses.
Muhammad Rafiq deceased intended to get his children back for about 3/4 mouths ago, who made demand to his in-laws, but the latter turned to be his enemies. At about 7-00 a.m. On the fateful morning, complainant was present at main Bazar Atta Muhammad Road, Chowk Gali No,14 and having conversation with Muhammad Rafique, when Muhammad Bashir (acquitted accused), Shahbaz appellant armed with hatchet and Mst. Sajida Parveen (acquitted accused) came while raising Lalkaras. Bashir caught hold of Rafique from behind with "Japha". Shahbaz appellant started inflicting hatchet blows on Rafique's head. Mst, Sajida squeezed the testicles of Muhammad Rafique. Muhammad Bashir kept on raising Lalkara that Rafique be not left alive., Muhammad Rafique deceased fell on the ground, in pool of blood. Shahbaz appellant caused hatchet blows to him even in that position. Rafique deceased died after a short while. None had rushed forward to free him out of fear. The accused fled away towards west after killing him. Muhammad Kashif, Mst.
Shagufta Yasmin and many others also witnessed the occurrence, besides complainant.
3. The investigation of this case was conducted by Karamat Ali, S.-I. (P.W.9), and during the investigation the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site plan of the place of occurrence, was got prepared, the appellant and the co-accused were arrested; recovery of hatchet from the appellant's possession was effected and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
4. The learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and others framed the charge against them, to which they pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove their guilt produced as many as nine witnesses. The ocular account of the incident in question was furnished by Muhammad Iqbal complainant (P.W.7) and Muhammad Kashif (P.W.8). The former also deposed about the motive while the recovery of hatchet (P.4) was effected from the appellant's possession in the presence of P.W.6 Muhammad Asif. Medical evidence was furnished by Dr. Muhammad Fiaz, Medical Officer while Karamat Ali, S.-I.
(P.W.9) had deposed about various steps taken by him during the investigation of the case. The other witnesses are of formal nature.
6. In the statement recorded under section 342, Cr.P.C. The appellant along with the co-accused had denied the allegations levelled against him by the prosecution and professed his innocence.
However, to a question that "why this case against you and why the P. Ws. Have deposed against you?", Shehbaz appellant replied in the following terms:-- "The background of the occurrence is that the deceased Rafique was married with Mst. Sajida Parveen my real sister about 20 years back and six children were born out of the wedlock. Due to cruel conduct of Rafique, the relations between the spouses remained harsh and strained throughout. About 8 years back, the, deceased expelled Mst. Sajida Parveen along with her children from his house, after severe torture, upon which a case bearing F.I.R. No,663 of 1996 dated 23-9- 1996 under sections 337-L(2)/ 337-F(5)/34, P.P.C. Was registered with Police Station Model Town GRW. Thereafter, Mst. Sajida obtained a decree for maintenance allowance from the Court of competent jurisdiction, which remained in field till happening of this incident. Besides these litigations, a number of other criminal cases were lying pending and finally separation took place on 14-10-2002 and the custody of children was handed over to Mst. Sajida through documents entered dated 14-10-2002. As the deceased was diehard, hence, he visited the house of Sajida and committed carnal intercourse, which was supposed to be reported by myself being brother of Sajida. On the fateful day, the deceased came to my house armed with hatchet and on the way, I met him, upon which he started hurling abuses and attacked me, but he slipped due to mud and fractured leg and I snatched the hatchet from him and caused injuries in self-defence. If I had left him alive, he would have killed me as he was a man with very strong body. I am innocent in this case. I had no intention to commit crime rather I was invited."
' However, the appellant had not opted to make statement under section 340(2), Cr.P.C. On oath, but he produced copies of some documents in his defence.
7. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and sentence against the appellant as detailed in para.1, ante, which has been assailed by the appellant through the instant appeal while Criminal Revision No,388 of 2004 was filed for enhancement of sentence and notice was issued by this Court to the appellant that "... If the case is otherwise found to be proved on merits, why his conviction and sentence recorded by the learned trial Court under sections 311 read with section 308, P.P.C.
Should not be set aside and he be convicted add sentenced as per law".
8. The learned counsel for the appellant contends that both the eyewitnesses were chance witnesses and they had failed to give any reasonable explanation for being present at the spot; that the place of residence of the complainant had not been shown in the site plan (Exh.P.C.); that there are contradictions in the statements of the eyewitnesses; that mode of writing down the application (Exh.P.A./1) had been stated differently by both the eye-witnesses as P.W.7 Muhammad Iqbal complainant stated that it was written by Kashif (P.W.8), but Muhammad Kashif (P. W.8) had denied the same and stated that someone else had drafted the same and Muhammad Iqbal complainant (P.W.7) also stated that it was drafted in the presence of the police officials while P.
W.8 Muhammad Kashif stated that it was drafted before the arrival of the police; that Muhammad Iqbal complainant had stated that his clothes were smeared with blood but he had not shown the same to the police and the police had not taken those into custody; that the occurrence had lasted in 10 minutes, but even then nobody had come forward for their help, which shows that the occurrence had not taken place in the manner narrated by the witnesses; that the eye-witnesses failed to tell the names of the persons who were present at the spot and as such they had suppressed the true facts; that the eye-witnesses were also inimical towards the appellant as the case was earlier registered against the deceased at the instance of the accused party for having murderous assault on Mst. Sajida Bibi; that criminal cases were also got registered against the appellant and his father and brother; that both the parties were inimical to each other; that motive also could not be proved as the dispute regarding the custody of the children had already been settled due to the intervention of the respectables of the locality in the year 2002 through the agreement executed between the parties and there was no claim left for taking the custody after the said agreement and the complainant had stated that the deceased did not agree with him to take legal action for taking of the custody; that place of recovery of alleged weapon of offence on pointing out of the appellant was not in the exclusive possession of the appellant and the recovery was legally inconsequential; that post-mortem examination had been conducted with the delay and the motive was not the same which was narrated in the prosecution version; that the occurrence was alleged to have taken place in the thickly populated area and presence of other persons at the spot was also claimed but in spite of that no independent witness was produced by the prosecution. It has, thus, been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to acquittal by this Court.
9. On the contrary, the learned counsel for the complainant and the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt; that the witnesses were independent and natural, who had no previous enmity, or grudge to falsely implicate him in the present case by letting off the real culprit; that the F.I.R. Was got lodged with promptitude and it was daylight occurrence; that both the eye-witnesses had shown their presence at the spot; that eleven injuries with sharp-edged weapon had been caused by the appellant and most of those were on the vital parts of the body of the deceased; that the medical evidence was in line with the ocular account; that the recovery of hatchet from the appellant's possession corroborated the ocular account as the hatchet was stained with blood; that the motive was also proved; that the defence plea raised by the appellant being an afterthought story was rightly discarded by the learned trial Court as the appellant did not receive any injury during the incident; that the learned trial Court had held the appellant guilty of Qatl-i-Amd, but has wrongly convicted under section 311 read with section 308, P.P.C. And withheld the normal penalty of death on the ground that one of the heir of the deceased had compromised with the appellant whereas according to the pronouncements of the Honourable Supreme Court of Pakistan in cases of Ta'zir partial compromise cannot be a ground for lesser sentence. It has, thus, been argued that while accepting criminal revision the appellant may be convicted and sentenced according to law.
10. I have heard the learned counsel for the parties and perused the record with due care and caution.
11. The occurrence in the present case had taken place on 17-8-2003 at 7-00 a.m. In the area of Main Bazar Ata Muhammad Road, Shaheenabad situate at a distance of three kilometers from Police Station Dhulley District Gujranwala. The appellant accompanied by the acquitted co- accused Mst. Sajida Parveen (sister) and Muhammad Bashir (father) was alleged to have caused injuries with hatchet on different parts of the body of Muhammad Rafique (deceased) who died at the spot. Muhammad Bashir co-accused was only attributed the allegation that he had held the deceased in Japha while Sajida Parveen co-accused statedly squeezed the deceased from his testicles. The doctor P.W.1 noted down 11 incised wounds to have been caused with sharp-edged weapon on different parts of the dead body of Muhammad Rafique deceased during the post- mortem examination. The ocular account was furnished by Muhammad Iqbal complainant (P.W.7), who was Behnoi of the deceased and Muhammad Kashif (P.W.8), nephew of the deceased. The appellant had also admitted to have caused injuries to Muhammad Rafique deceased while making statement under section 342, Cr.P.C. But in a different manner. The learned trial Court has already acquitted Mst. Sajida Parveen and Muhammad Bashir co-accused while extending the benefit of doubt in their favor. The prosecution side had not challenged their acquittal and to their extent the impugned judgment had attained finality.
12. So far as case of Shehbaz appellant is concerned, the learned trial Court through the impugned judgment concluded that the prosecution had succeeded in proving the case against the said appellant beyond any shadow of doubt and also rejected the defence plea, but has convicted and sentenced him under sections 311 read with section 308, P.P.C. Only on the ground that one of the heir of Muhammad Rafique deceased, namely, Mst. Ishrat had forgiven the appellant in the name of Almighty Allah and waived her right of Qisas. Admittedly, it was not a case of Qisas falling under section 302(a), P.P.C. As the eye-witnesses had not undergone the test of Tazkiya-tul-Shahood before recording of their evidence, but it was a case falling under the Ta'zir. It has been repeatedly held by the superior Courts of this country that in cases of Ta'zir partial compromise effected with only some of they legal heirs cannot be used and is not sufficient to hold that the offence has been compromised, but compromise can be effected by all the legal heirs of the deceased under section 345(2), Cr.P.C. With the permission of the Court. The case reported as Bashir Ahmad v. The State and another 2004 SCM R 236 is referred. For ready reference, the relevant portion thereof is reproduced here:-- ' Learned counsel has contended that if there are more than one Wali and anyone of them waives his right of Qisas as provided under section 309, P.P.C. Or compounds the same under section 310, P.P.C., the sentence of death cannot be executed. We have considered the contentions raised by the learned counsel for the petitioner and find that the provisions referred to above are applicable only in cases of Qisas and not in the cases in which conviction and sentence is awarded as Tazir. It was held in Muhammad Aslam v. Shaukat Ali 1997 SCM R 1307 that "where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh." However, in view of the amendment made in section 345(2), Cr.P.C., the sentence awarded for murder as Tazir can be compounded by all the legal heirs of the deceased with the permission of the Court. The forgiveness of one of the Wali of deceased cannot help the appellant as he was tried, convicted and sentenced as Tazir and not Qisas, therefore, the favor extended to the appellant who happened his daughter, would not save him from death penalty."
13. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the decisions of the august Supreme Court are binding on all other Courts in Pakistan. The impugned conviction and sentence passed by the learned trial Court against the appellant having been passed in disregard of the dictums laid down by the august Supreme Court of Pakistan is not sustainable in the eye of law as in cases not falling under clause (a) of section 302, P.P.C. (Qisas) the conviction can be recorded as Ta'zir under clause (b) or (c) of section 302, P.P.C. Thus, without commenting upon the merits of the case lest it may prejudice the case of either party before the learned trial Court, the impugned conviction and sentence recorded by the learned trial Court against the appellant under section 311 read with section 308, P.P.C. Is set aside and to the extent of Shehbaz appellant the case is remanded to the learned Sessions Judge, Gujranwala, who may himself hear the case or entrust it to any other learned Additional Sessions Judge under his supervision for rewriting of judgment on merits without being influenced by any findings of this Court, of course, after affording opportunity of hearing to the learned counsel for the parties. The instant Criminal Appeal and Criminal Revision No,388 of 2004 stand disposed of accordingly.