Ch. Ijaz Ahmed, J.--The petitioner has sought leave to appeal against the judgment of the Federal Shariat Court dated 5-8-2002 wherein the appeal of the petitioner against his conviction awarded by the trial Court vide judgment dated 23-12-2000 was dismissed and his sentence was enhanced from 10 years to death. Detailed facts have already been mentioned. in the impugned judgment.
However necessary facts out of which the present petition arises are that petitioner is involved in a case FIR No. 15/1999 which was registered at Police Station Saddar Khuzdar on the basis of the written complaint of Abdul Samad under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The contents of the FIR reveal that Ghulam Mustafa informed the complainant Abdul Samad that his cousin Abdul Aziz son of Din Muhammad and his wife Mst. Maryam had been fired at by the dacoits on the night of occurrence i.e. 23-6-1999. The complainant after receiving the said information rushed to the house of his cousin Abdul Aziz who was lying dead while Mst. Maryam was in injured condition, had been taken to the hospital. He rushed to the hospital where Mst. Maryam narrated the occurrence to him that they were asleep in the Courtyard at about 4.00 a.m. She noticed the presence of some strangers in the house. She got up and saw two persons one of them was armed with Kalashanikov while the other was having a pistol and had tape recorder in his hand. Her husband also got up and caught hold of one of them who was armed with pistol and had the tape recorder in his hand. Her husband over powered him and threw him on the ground who called his companion who was armed with kalaslianikov for help. His companion fired and with his firing hei husband was hit, fell down and expired at the spot.
She further stated that his co-accused who had been overpowered by her husband also sustained injuries and the co-accused had also opened fire and injured her. The co-accused then took his injured companion and decamped from the spot.
2. The Investigating Agency investigated the matter and found the petitioner guilty and submitted challan against the petitioner and his co-accused before the competent Court. Sessions Judge Khuzdar vide its judgment dated 23-12-2000 sentenced and convicted the petitioner as follows:-- Name of accusedOffence Sentence Inayatullah Under Section 396 PPC10 years R.I. with a fine of Rs.5 lacs, in case of default of payment of fine to further suffer 2 years R.I.
'It is pertinent to mention here that his co-accused Nasrullah had died and his co-accused Rahim Bakhsh was not available and was declared absconder. Therefore, challan was sent against the petitioner and his acquitted co-accused Nazir Ahmed.
3.Petitioner being aggrieved filed Criminal Appeal No. 7Q/2001 in the Federal Shariat Court whereas complainant Abdul Samad filed Criminal Revision No. 3-Q/2001 for enhancement of the sentence of the petitioner. The complainant had also filed Criminal Appeal No. 1.2Q/2001 against the acquittal of his co-accused Nazir Ahmed. The learned Federal Shariat Court partly accepted the appeal of the petitioner and set aside the conviction awarded by the trial Court under Section 396 PPC and convicted the petitioner under Section 302 (b) PPC read with Section 20 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and sentenced to death as tazir on two counts for the brutal murder of Abdul Aziz and Mst. Maryam. Hence the present petition.
4.The learned counsel for the petitioner submits that the evidence, which has been come on record has not been appreciated in its true perspective and the conclusion as arrived at by the Federal Shariat Court has no nexus with it. He further urges that sufficient material has not come on record against the petitioner to connect him with the commission of the alleged offence which resulted in serious mis-carriage of justice. He further maintains that trial Court had acquitted his co-accused Nazir Ahmed, therefore, learned trial Court erred in law to convict and sentence the petitioner and this fact was also not considered by the Federal Shariat Court in its true perspective.
He further urges that petitioner was convicted and sentenced to death by the Federal Shariat Court on circumstantial evidence, which is always to be considered a week evidence. The learned Federal Shariat Court was not justified to enhance the sentence of the petitioner and he further requests that sentence of the trial Court be restored in the interest of justice and fairplay.
5. We have given our anxious consideration to the contention of learned counsel for the petitioner and perused the record. It is admitted fact that there is no eye witness in the present case. The prosecution has established the case against the petitioner by producing circumstantial evidence.
It is pertinent to mention here that following facts are admitted on the basis of the record and observed by the Courts below: (i)The occurrence took place in the house of deceased Abdul Aziz at about 4.00 a.m. on 23-6- 1999 (ii)One of the accused had taken up a tape recorder.
(iii)Abdul Aziz and his wife woke up.
(iv)Abdul Aziz got hold of one of the accused who cried for help to rescue him.
(v)One of the culprits fired which hit not only Abdul Aziz but also the culprit who had been over powered by him i.e. Nasarullah brother of present petitioner.
(vi)Due to the firing residents of the locality rushed to the house of deceased Abdul Aziz who found him dead and his wife in injured condition.
(vii) Tape recorder was also found at the spot.
(viii) Father of the petitioner in presence of PW11 Bashir Ahmad ASI, Ghulam Hussain PW2, Yayha Khan PW3 and Muhammad Hussain PW4 admited that present petitioner Inayat Ullah, Nasarullha and Rahim Bakhsh went for robbery wherein accused made firing due to firing Abdul Aziz and accused Nasarullah died and Mst. Maryam received injuries: (ix)Petitioner was identified by the following dis-interested witnesses:-- (i)Ghulam Hussain PW2.
(ii)Muhammad Hussain PW4.
(iii)Yayha Khan. PW3.
(iv)Meer Muhammad PW6.
(x)The aforesaid witnesses had also stated specifically in their statements that they had noticed drop of blood outside the house of deceased Abdul Aziz while they had followed coupled with the fact that there was blood drops of the injured accused taken from the spot by his co-accused to his house. The aforesaid portion of the aforesaid witnesses was not challenged by the defence.
(xi)Weapon was recovered from the petitioner on his pointation and the fire arm report was also positive.
6. It is a settled principle of law that generally capital punishment cannot be awarded to the accused persons on the basis of the circumstantial evidence. In case the aforesaid pieces of circumstantial evidence are put in a juxta-position then it brings the case in the area wherein the petitioner was connected with the commission of offence on the basis of the aforesaid pieces of evidence coupled with the fact that the prosecution witnesses are dis-interested on the basis of such type of strong circumstantial evidence, the petitioner was convicted by A the trial Court under section 396 PPC without adverting to the circumstances emerged on the basis of the evidence on record and the learned Federal Shariat Court was justified to set-aside the conviction of the petitioner under section 396 of PPC and was also justified to convict and sentence him under section 302 (b) of PPC read with 20 of the aforesaid Ordinance. The provisions of Cr.P.C. are applicable mutatismutandis in respect of cases arising under the provisions of offences against property Ordinance, 1979 in view of section 24 of the Ordinance. Therefore, Federal Shariat Court can examine question of fact and law and can quash, confirm, modify or enhance sentence. It is also a settled law that powers of the appellate Court to alter a conviction are very wide under section 423 of the Cr.P.C. but they are subject to the condition that the altered conviction should not be such which could not have been recorded by the trial Court. In the present case trial Court has power to award capital punishment. The judgment of the Federal Shariat Court is in accordance with law as law laid down in the following judgments:-- (i)Begu's case (1925 ILR 6 Lahore 226 (PC)
(ii)Wallu's case (1923 ILR 4 Lahore 373.
(iii)Gauns's case (1926 ILR 7 Lahore 561.
(iv)Nur Mohammad's case (AIR 1945 P.C. 151)
(v)Amanat Ali's case (PLD 1950 Lahore 364).
7. It is a settled law that the appellate Court has all the powers to convict the accused person not charged in the trial Court in view of sections 236, 237, 238 of Cr.P.C. read with section 423 of the Cr.P.C. See Rama Swamy Nader's case (PLD 1958 SC (India) 247.
8. In the interest of justice and fair play, we have also re-examined the evidence on record with the assistance of the learned counsel for the petitioner. We are satisfied that over-whelming circumstantial evidence has been brought against the petitioner as observed by the learned Federal Shariat Court in the impugned judgment in paragraphs 8 and 9, therefore, contention of the learned counsel for the petitioner that without direct evidence the petitioner cannot be sentenced to death is without force. The judgment of the Federal Shariat Court is in consonance with the law laid down by this Court in Jaffar Ali's case (1998 SCMR 2669). It is pertinent to mention here that learned trial Court had acquitted his co-accused Nazir on the basis of distinguished features and criminal appeal filed by the complainant against his acquittal was also dismissed by the Federal Shariat Court with cogent reasons, therefore, contenon of learned counsel for the petitioner have also no force to that extent. As mentioned above, the petitioner was convicted with the commission of offence beyond any shadow of doubt, therefore, learned High Court was justified to convict and sentence him as to death.
9. In view of what has been discussed above, we do not find any illegality or infirmity in the impugned judgement, therefore, the petition has no merit and the same is dismissed. Leave refused.