' KHAWAJA SHAHAD AHMED, J.--- The above captioned Criminal Appeals Nos.20 of 2005 and 30 of 2005 have been filed against the judgment passed by a learned Single Judge of the Shariat Court on 4-3-2005: The Appeal No,20 of 2005 has been filed to .Set aside the conviction order recorded against the appellants whereas the appeal titled Muhammad Ashraf v. Azhar Shehzad and others has been filed by the complainant, Muhammad Ashraf, for enhancement of sentence awarded to Azhar Shehzad, respondent. As the judgment recorded by the Shariat Court has been challenged by the appellants through cross-appeals, these are, therefore, decided and disposed of through this single judgment.
2, The facts forming the background of the present appeals are that a case was registered at Police Station Afzalpur against Badar Shehzad and Azhar Shehzad, sons of Muhammad Akram caste Mughal, resident of Village Abdupur, Tehsil and District Mirpup, under section 324/34, A.P.C., at 1-00 p.m. The facts narrated in the F.I.R. Were that Shahid son of Talib along with some other boys were quarrelling with Badar and Azhar sons of Akram, near their place of abode. One Mazhar Hussain, deceased, who. Was not a party to brawl, entered the scene to slop them from fighting but meanwhile accused Azhar went in his house and brought a loaded .12 bore gun and handed over the same to his brother Badar Shehzad, who with the intention to kill Mazhar Hussain, fired at him which shot hit the deceased in his abdomen, Father of the deceased and one Manzoor Hussain along with certain other people from the locality witnessed the occurrence. Mazhar Hussain was shifted to the hospital.
3. On the basis of this information a case under section 324/34, A.P.C. Was registered on the same day. The dying declaration was recorded by one Kh. Abdul Qayyum, A.S.-I. In presence of Mir Shakir, P.W.1, and Abdul Shakoor, P.W.2. Mazhar Hussain succumbed to the injuries and died on the same day, resultantly the case under section 324/34, k.P.C. Was altered to section 302, A.P.C. According to the record, Kh. Abdul Qayyum, A.S.-I. Police, also prepared injury form of Mazhar Hussain, deceased (Exh.P.N.). On 20-7-1998 the accused appellaqts were arrested. After the investigation each of the appellants were sent to face trial in the competent Court. The District Court of Criminal Jurisdiction Mirpur sentenced Badar Shehzad and Azhar Shehzad on 29-5-2003. Badar Shehzad was awarded life imprisonment while Azhar Shehzad was awarded 3 years' imprisonment, which according to the record, he had already undergone during the trial of the case in the trial Court. Badar Shehzad was also convicted to two years' imprisonment under section 13 of the Arms Ordinance. Two appeals were filed in the Shariat Court, one by Badar Shehzad and Azhar Shehzad against their conviction order and the other by Muhammad Ashraf for enhancement of sentence awarded to the convicts. The learned Judge of the Shariat Court after hearing the parties accepted the appeal filed against Badar Shehzad and Azhar Shahzad. Badar Shehzad was awarded death sentence and the sentence awarded to Azhar Shehzad was enhanced from 3 years' simple imprisonment to 10 years' rigorous, imprisonment. Benefit of section 382-B was also extended to Azhar Shehzad. The sentence awarded under section 13 of the Arms Ordinance to Badar Shehzad was kept intact. As far the appeal filed by Badar Shehzad and Azhar Shehzad is concerned, the same was dismissed. The learned Judge of the Shariat Court recorded the judgment on 4-3-2005, which has been assailed through Appeals Nos.20 and 30 of 2005 before this Court by the convicts for setting aside the same and the complainant, Muhammad Ashraf, against Azhar Shehzad with the prayer that he be also sentenced to death.
4. Through Criminal Miscellaneous No,2 of 2006 one of the legal heirs, Mst. Saleem Akhtar, widow,of Mazhar Hussain, deceased, applied for recording of her statement for compounding the offence of murder of Mazhar Hussain. Along with the application she filed an affidavit wherein she has deposed that she has entered into a compromise with the convict-appellants and has received Rs,5,50,000 as compensation. She, thus, waived her right of Qisas. By order dated 15-2-2006, the learned Chief Justice of the time accepted the application filed by the widow of the deceased and fixed the case for arguments in the above captioned appeals. As the statement of the widow of the deceased has been recorded to the satisfaction of the learned Chief Justice of the time, the supra titled appeals are now to be decided in view of the changed circumstances and the law on the subject.
5. After amendment and substitution of certain sections of Pakistan Penal Code, sections 299 to 338 have been changed. By amending section 306 it has been provided that Qatl-e-Amd shall not be liable to Qisas in certain cases and in section 307 the detail-of the cases in which Qisas for Qatl- e-Amad shall not be enforced, have been introduced and subsection (2) of section 307 has been added by Act No,9 of 1999 on 12-10-1999 which provides that for the purpose of satisfying itself that the Wali/heir has waived the right of Qisas under section 309 or compounded the right of Qisas Under section 310 voluntarily, the Court shall write down the statement of the Wali (heir) and such other person, as it may deem necessary, on oath and record an opinion that it is satisfied that the waiver or composition was voluntarily made.
6. The order dated 15-2-2006 recorded by the learned Chief Justice of the time reveals that the requirements of section 307 of the A.P.C. Have been fulfilled and the findings to be recorded in the appeals are to be made keeping in 'view the provisions of sections 309 and 310. Section 308 deals with the punishment of Qatl-e-Amd not liable to Qisas etc. And provides that in cases falling under section 306 and under clause (c) of section 307, offender shall be liable to Diyat. Subsection (2) of this section provides "notwithstanding anything contained in subsection (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of Diyyat may punish the offender with imprisonment of either description for a term, which may extend to 14 years as Ta'zir".
7. As is clear from very language of the section, the Court is empowered to punish the offender with imprisonment of either description for a term which May extend to 14 years as Ta'zir. This imprisonment is to be awarded in addition to the punishitent of Diyyat. This power is to be exercised keeping in view the facts and the circumstances of the case. This section is attracted only where the offender's case falls under subsection (1) of section 308. As the case in hand is not one liable to Qisas and for which punishment is Diyyat and the provisions of section 306 or 307 are not attracted, therefore, , the case in hand cannot be decided keeping in view the provisions of section 308.
8 .As far section 309 is concerned, it deals with waiver by a Wali without any compensation. Under subsection (2) of this section it is provided that where a victim- has more than one Wali, anyone of them may waive his right of Qisas, however., the Wali who does not waive the right of Qisas, shall be entitled to his share of Diyyat.
9. Section 310 deals with compounding of Qisas in Qatl-e-Amd and provides that an adult sane Wali may, at any time on accepting Badal-eSulh, compound his right of Qisas. As the widow .Of the deceased has received Rs,5,50,000, this section shall apply to the case inhand.
10. Under the Islamic Penal Laws Act, 1974 it was provided that in case one of the legal heirs if compromised or compounded the murder of deceased, the other heirs could claim the share in Diyyat, but after amendment in Pakistan Penal Code the right of compromise has been declared as an individual right and the other legal heirs are not bound by the said compromise. To meet such an eventuality section 311 has been introduced which is reproduced as below:- "311, Ta'zir after waiver or compounding of right of Qisas in Qatl-iAmd.--- Notwithstanding anything contained in section 309 or section 310 where all the Walis do not waive or compound the right of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either, description for a term which may extend to ten years as Ta'zir."
11. A bare reading of section 311 makes it abundantly clear that where a case falls under section 309 or 310, the provisions of section 311 will still apply and in spite of the fact that one of the legal heirs of the deceased had waived his/her right of Qisas after taking compensation, the Court can still convict or sentence the accused, if the facts of the case so require.
12. It is one of the basic principles of interpretation of statutes that where plain language has been used and it is found to be certain and free from ambiguity, bare reading of the same is sufficient and no interpretation in detail is necessary. In the case reported as Nisar Ahmed v. The State 1982 PCr.LJ 1287, this Court held that construction being ascertainment of legislative intent, the Courts while discovering such intent not to have exercised legislative powers and not to rewrite the statutes. Only exercise which the Court has to undergo is to find the intent of. The Legislature and any departure would be an invasion in the province of Legislature by the judiciary. A Full Bench of the Supreme Court of Pakistan in a case reported as Khawaja Ghulam Sarwar v. Pakistan through the General Manager P.W.R., Lahore PLD 1962 SC 142 held that the rules of construction of words in a statute are to be taken in natural and ordinary sense. This judgment of the Supreme Court of Pakistan is probably one of the most authoritative reports on the subject of interpretation. The learned Judges while recording their separate judgments mainly based their findings on interpretations made by Maxwell "on Interpretation of statute" 10th Edition page 6, which is as under:-- "In construing wills and, in deed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the .Words may be modified so as to avoid that absurdity and inconsistency, but no further."
' In a case reported as The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286 the laid down principle of interpretation of Statutes was followed. This exercise has been made to hold that bare reading of sections 309, 310 and 311 of A.P.C. Reveals and provides that the accused can be convicted notwithstanding any compromise entered into between a legal heir of the deceased and the accused. The provisions of section 311 shall apply only in cases where( all the legal heirs do not compromise or compound. Our this view is supported by the cases reported as Mst. Taj Mahala v. Shams-ur-Rehman. 1999 PCr.LJ 385, Amir and another v. The State 2003 SCMR 561, Riaz Ahmed v. The State 2003 SCMR 1067, Nusrat Shah v. Muhammad Shah and another PLD 2001 Pesh. 58, Azmat Ullah Khan v. The State 1993 PCr.LJ 1220, Muhammad Naeem alias Babu v. State 2002 PCr.LJ 1642 and Mukhtar Ahmed alias Mukhoo v. State 2003 PCr.LJ 998. Although the facts of the cases of above referred reports are different, but they are unanimous on one point that in a murder case when one or more of the legal heirs, but not all, enter into compromise with the accused or compound the same, conviction under section 302 cannot be recorded and the case is to be dealt with under section 311, C' P.P.C. Which provides maximum sentence of 14 years provided the facts of the case so require.
13, Mr. Abdul Majeed Malik, the learned counsel appearing for the convict-appellants, has assailed the judgment recorded by the Shariat Court on the ground that the alleged dying declaration inscribed to the deceased is fake, concocted and fabricated in view of the fact that it does not bear the signature or attestation of the relevant medical officer although the prosecution has alleged that it was recorded in the hospital. His second argument is that the deceased was injured by firing of the opposite party involved in the quarrel with the appellants. He attempted to justify this argument by submitting that' the convicts having been seriously injured were not in a position to inflict fatal injuries attributed to them. He also submitted that the substance of the dying declaration and alleged report recorded in daily diary of police inscribed to the deceased was not put specifically to the appellants in the examination under section 342, Cr.P.C. Thus, the said evidence cannot be read against the convict appellants. The learned counsel for the appellants in addition questioned the validity of the judgments of the Courts below on the following grounds:---
(a) That both the Courts failed to take into account and appreciate that the injuries suffered by the appellants in the alleged incident were not taken into consideration and that the assailants who inflicted injuries on the person of deceased as well as on the appellants were neither interrogated nor produced in the Court, therefore, the prosecution failed to explain its omission to exclude the assailants from investigation and produce them in the Court, for their trial or as witnesses in the case.
(b) That the evidence produced by the prosecution suffers from concoction and fabrication and is full of material contradictions.
(c) That the weapon of offence was not recovered from the appellants as the number of gun entered in the recovery memo. And record of the police is different from the gun which was recovered from the convict-appellants.
(d) That the ocular evidence and the alleged dying declaration were in conflict within the medical evidence as plastic coating of the cartridge of the gun was recovered from the abdomen of the deceased which means that it was a case of close-ranged fire and not from far away, as has been described by the police and the ocular evidence of the witnesses who, in the estimation of the learned counsel, were interested and related witnesses.
(e) That the deceased was shifted to hospital without making a report to the police and When belated F.I.R. Was lodged it was based on false facts. Relying on the principle that the prosecution has to prove its own case, the learned counsel attacked the findings of the Shariat Court and the trial Court on the ground that they have based their finding on questions put in the cross- examination and suggestions made in defence, and as the prosecution has failed to prove its case beyond reasonable doubt, both the Courts below have committed material irregularity, sufficient for recalling the conviction orders.
(f) That the occurrence, according to the record, took place near the front door of the convicts and that actual culprits escaped, and the appellants were roped for the murder of the deceased by the police and the alleged eye-witnesses.
(g) That, so far as the motive behind the alleged incident is concerned, it is very weak and the same has not been proved.
14. As against it, the learned counsel for the complainant, Ch. Khalid Rasheed, argued that the incident took place in broad-daylight, the F.I.R. Was lodged in time, the accused were nominated and the names of the witnesses were also mentioned. The prosecution proved its case through evidence of eye-witnesses and supported by other corroborative evidence. The prosecution has proved its case beyond any shadow of doubt. In support of the appeal filed by the complainant, Muhammad Ashraf, for enhancement of the sentence awarded to Azhar Shehzad, the learned counsel submitted that the rule of vicarious liability has not been taken into consideration by the Courts below at the time of recording judgment against the respondentAzhar Shehzad.
15. It may be mentioned here that the learned counsel for the parties addressed their respective arguments in detail. After going through the evidence and perusal of the file we have come to the conclusion that on vital points the prosecution has established its case through confidence inspiring evidence. The names of the convict-appellants find specific mention in the F.I.R. And the witnesses have categorically deposed that the accused Badar Shehzad fired on the deceased resulting in his death.
16. We have heard the learned counsel for the parties and also gone through the statements of the witnesses and other evidence produced by the prosecution. As far the argument advanced by the learned counsel appearing for the convict-appellants that the dying declaration does not bear the signature or attestation of the Medical Officer, is concerned, it does not make any vital difference as the same is not the sole ground on which the Courts below have recorded the conviction order: The prosecution story is mainly based on the statements of the witnesses who have clearly deposed the details of the incident corroborated by the dying declaration and other evidence. The argument that the convict-appellant was injured, therefore, he could not use the gun to fire on the deceased, is not proved through any evidence. As far the argument that the substance of dying declaration and the alleged report recorded in the daily diary of the police inscribed to the police was not specifically put to the appellants in their examination under section 342, Cr.P.C., is concerned, it does not have any force in view of the fact that examination under section 342 was made on 17-3-2001, which is placed at page 112 of the file of the trial Court, wherein it has specifically been put to the accused that the deceased had made dying declaration in presence of the witnesses and the doctor. Similarly on the same page this question has been put to the convict Badar Shehzad in detail again the format may be different, but the fact of the matter is that this question has been put to the accused Badar Shehzad in his examination under section 342; Cr.P.C.
This is a settled law by now that dying declaration if found in line with the ocular evidence, the Court can base its conviction order treating the dying declaration as corroborative evidence:
17. The copy of daily Roznamcha Register (Exh.P.B./B), attested by one Rashid, A.S.-I. Police, P.W.13, was not challenged in cross-examination. The aforementioned document was also put to the accused-appellants for their explanation during the examination under section 342, Cr.P.C.
Therefore, the addressed argument has no force.
' The argument advanced by the learned counsel for the convict-appellants that the appellants were also seriously injured, which fact was concealed by the Investigating Agency and the prosecution witnesses, is also not found correct. The record reveals that the. Investigating Agency got the appellants clinically checked and the medical report has been attached with the Challan.
The injuries have been declared as simple by the Medical Officer. This may have been caused during the quarrel between the convicts and Shahid son of Talib and some other boys. The learned counsel for the defence has taken a very strong exception as far the recovery of rifle at the instance of Badar Shehzad is concerned. According to him the .12 bore gun No,193 was allegedly recovered from Badar Shehzad whereas according to the daily Register of Malkhana, a .12 bore gun No,12232 was placed in the Malkhana which belongs to Mirza Tahir Hussain son of Talib Hussain.
This argument, too, does not have any force in view of the fact that according to the recovery memo. (Exh.P.D.), a .12 bore gun No,193 was recovered at the pointation of Badar Shehzad from his house by Muhammad Rashid Khan, S.H.O. Police, P.W.13, in presence of P.W.3 and P.W.4, who have testified the recovery in clear words. The same gun No,193 (Exh.P.4) was produced in the Court and identified by Muhammad Rashid Khan, Sub-Inspector Police, P.W.13, therefore, there remains less total for the defence to argue that the gun used in the incidence was replaced. As far the gun entered in the Register of Malkhana, is concerned, it appears to have been made by some Mazhar- ul-Haque, Muharrar, who was not produced before the trial Court, therefore, this fact does not form part of the prosecution story. Even otherwise this version cannot be treated as fatal for the prosecution story. The argument that no burning or blacking was found on the entry wound is also devoid of any force as the exact distance between the assailant and the deceased cannot be determined. The distance between the assailant and the deceased while standing definitely reduces when the accused stretches his hands while using the gun, and, similarly the said distance possibly increases if the deceased attempts to go away to save his life or the assailant takes his position before attacking the deceased. The argument loses its importance in view of the clear statements of the eye-witnesses, according to which the assailant fired the fatal shot on the deceased in their presence. The argument advanced by the learned counsel for the defence being technical in nature cannot brush aside the ocular version on vital points of prosecution story.
18. Now coming to the inter se version of the parties the prosecution has succeeded in establishing that the names of the convict-appellants find specific mention in, the F.I.R. Eye-witnesses have deposed that the accused Badar Shehzad fired on the deceased resulting in his death. Although some facts of the prosecution case are shrouded in mystery,. As submitted by the learned counsel for the convict-appellants, -the use of lethal weapon by the accused Badar Shehzad, is proved to the neck by the prosecution. We agree with the learned counsel for the convict-appellants that the brawl took place near the house of the convicts, but the same does not appear to justify the target killing of the deceased. Similarly we agree with the learned counsel that the prosecution had to prove its own case and the defence need not strictly prove its version and has only to find a flaw in the prosecution story yet we cannot agree in view of the facts of the case, as the same has not been made sole ground for conviction of the appellants. If the deceased or his companions had attacked the convict-appellants, they could safely unveil all facts so that their version could shatter the prosecution story. The statements of the eye-witnesses of occurrence find corroboration from dying declaration, medical reports, injury sheet and other incriminating material which need I not be discussed here in detail as the prosecution case stands proved on all vital points. Mr. Abdul Majeed Malik, the learned counsel, in our view, has taken an important point which relates to weapon of offence in the case. He submitted that the gun used in the case is different from one recovered from the accused, which makes the prosecution story doubtful. We do not find any substance in this argument in view of the fact that recovery, even if doubtful, cannot brush aside the statement of the witnesses who categorically stated that at the time of occurrence Azhar Shehzad rushed into his own house to fetch a loaded gun and handed over the, same to Badar Shehzad, who, without any delay, used the same to kill the deceased. His remaining with loaded gun in his hand could not justify the target killing on the ground of his self-defence which although not specifically taken in the case, has half heartedly been pressed during the course of arguments. The argument of the learned counsel that the deceased was one of the members of the group and had also attacked the appellants does not also extend any help to a murder committed in a brutal way. It is correct that everybody's house is a castle for him and nobody can encroach upon and disturb the privacy and cause risk or danger to the life and property of the owner of the house but at the same time it is equally correct that house of an individual cannot be used as a trench to shoot or shout upon others.
19. Coming to the case
20. Keeping' in view of the above discussion, the legal position which emerges is that, (a) after amendment and alteration of some of the sections of the Azad Penal Code and the Code of Criminal Procedure, in the cases of Hadd and Qisas, the sentence of Diyyat can be awarded to the convict and the offence of Qatl-i-Amd is compoundable, (b) where there are more than one legal heirs of the deceased, if all of them do not waive their right of Qisas or do not compound with the accused/convict, the Court can still impose sentence notwithstanding that the offence has been compromised or compounded by one or more legal heirs but not by all, and (c) while dealing with such cases, keeping in view the principle of Fasad-fil-Arz, the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded, with imprisonment of either description for a term which may extend to fourteen years as Ta'zir."
21. The above captioned appeals are disposed of with following findings:--
(a) The appeal filed by the complainant against Azhar Shehzad fails a's one of the legal heirs of the deceased has compounded the offence and none of the accused can be sentenced to death under section 311, A.P.C.
(b) The appeal filed by the convict-appellants is accepted to the extent of Badar Shehzad, whose death sentence is altered to 14 years' imprisonment, but as far the sentence of two years' imprisonment under section 13 of the Arms Ordinance is concerned, it is maintained. The statutory benefit under section 382-B is extended to the said convict. The sentence recorded against Azhar Shehzad is altered to the sentence already undergone. He shall be released forthwith.
' The appeals are disposed of with the above narrated modifications.