JUSTICE CH. IJAZ AHMED (MEMBER).--- The petitioner/ appellant has sought leave to appeal against the judgment of the Federal Shariat Court dated 17-10-2002 wherein appeal filed by the appellant/ convict against his conviction was dismissed. Necessary facts out of which the present appeal/petition arises are that the appellant is involved in a case F.I.R. No,608 which was registered at Police Station Muzaffargarh under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and under sections 337/302, P.P.C. On 10-10-1999. The facts as mentioned in the F.I.R. Are as follows:-- "that complainant runs a tea stall at vegetable market Muzaffargarh. According to him, his son Muhammad Ramzan aged about 12/13 years student of 6th class went to attend a Majlis at Darbar Ghareeb Shah in the area of Mauza Talari after returning from school and taking meals. It is further narrated in the F.I.R. That when complainant's son did not return, worries occurred and his search was conducted and on the following day at about 8-00 a.m. The complainant received the information that a dead body of a boy aged 12/13 years were lying at Chah Kotwal Wala and on this information complainant along with Ghulam Abbas, his brother, Asif Hussain son of Ghulam Habib and one Mazhar Hussain reached that place and they found that it was dead body of Adnan Shah from whose head blood was oozing and string of his Shalwar was disentangled. Then the complainant lodged the report at the police station at 8-50 a.m."
After completing the investigation the challan was submitted before the competent Court. The learned trial Court after completing the legal formalities such as recording of evidence of the prosecution and recording the statement of the convict/accused add heard the arguments of the counsel of the parties. The learned Sessions Judge vide its judgment dated 13-4-2000 convicted and sentenced the petitioner/ appellant as follows:-- Name of accusedUnder section Sentence Israr Ali (1) 12 of of fence of Zina (EOH)
Ordinance,1979
(2) 377, P .P.C.
(3) 302(b), P .P.C.Death sentence and fine of Rs.20,000 or in Default of payment of fine to further undergo one year's R.I.
7 yearsR.I. With a fine of Rs.10,000 or in default of payment of fine to further undergo 6 monthsR.I.
The appellant/petitioner was also ordered to pay compensation in the sum of Rs.40,000 to the L.Rs, of deceased Muhammad Adnan Shah or in default to payment of compensation to suf fer six.
MonthsS.I.
The petitioner/appellant being aggrieved filed Criminal Petition No,8(S) of 2003 before this Court which was fixed before this Court on 18-4-2003. Leave was granted vide order dated 18-4-2003 to ascertain as to whether the offence in this case has been apprecited in consonance with the principles laid down for the appraisal of evidence in criminal cases. Hence the present appeal.
2. The learned counsel for the appellant submits that the prosecution had failed to prove its case against the appellant beyond any shadow of doubt. The occurrence was unseen and circumstantial evidence was fabricated. He further urges that the last seen evidence is a Weak type of evidence and in the present case it was too weak to sustain the conviction as Sadiq Hussain P.W.12 and Zafar Iqbal P.W.13 were trumped up witnesses and their statements were also discrepant. He further submits that the photographs recovered from the place of occurrence not only offend provisions of section 103, Cr.P.C. But also had no nexus with the victim and person namely Abdul Hafeez to whom the same pertains was neither associated with the case nor examined at the trial. He further urges that the recovery of the crime pistol was doubtful in view of the discrepant statement of the recovery witnesses. He further submits that Sadiq Hussain P.W.12 and Zafar Iqbal P.W.13 who had seen the deceased with the convict at that time they were going to city. Therefore prosecution had failed to connect the appellant with the commission of offence.
Both the aforesaid witnesses had not furnished sufficient circumstances to be present at the one place and this fact was not considered by the Courts below. He further submits that prosecution had only brought on record last seen evidence which was not corroborated by any other independent piece of evidence. Therefore both the Courts below were not justified to award capital punishment merely on circumstantial evidence. He further submits that appellant was involved in a case as result of sectarian terrorism and this plea was taken specifically by the convict/appellant before the trial Court. Both the Courts below had not considered defence plea.
3. Learned counsel of the complainant submits that prosecution had brought on record sufficient material to connect the appellant with the commission of offence. The last seen evidence produced by the prosecution through Sadiq Hussain P.W.12 and Zafar Iqbal P.W.13 were duly corroborated by the following pieces of evidence:-
(1) Photographs recovered at the place of occurrence.
(2) Photographs recovered from the bag of the convict/appellant.
(3) Recovery of weapon of offence was also recovered from the convict.
(4) Medical evidence also corroborated the story of the prosecution.
4. The learned State counsel has also supported the impugned judgment.
5. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is an admitted fact that both the Courts below after proper awreciation of evidence had come to the conclusion that prosecution had proved the case against the appellant by producing two independent witnesses who had seen the victim with the convict/appellant. Appellant had failed to furnish sufficient explanation qua his innocence that the victim disassociated from him in presence of any independent person. In fact the appellant had failed to furnish any explanation with regard to aforesaid circumstances that victim was not with him or they were disassociated with each other. Both the Courts below had believed the statement of the last seen witnesses P.W.12 and P.W.13 with cogent reasons. The learned Federal Shariat Court had taken a lot of pain to reappraise the evidence and came to the conclusion that convict was seen by P.W.12 and P.W.13. They were subjected to lengthy cross-examination but defence had failed to shake their veracity. The learned Federal Shariat Court has also observed that defence had failed to cross-examine on material points, therefore, that portions of the examination-in-chief of the said witnesses were admitted by the defence. The recovery of weapon of offence and photographs were believed by the Court below. It is a settled law that punishments could be awarded on the circumstantial evidence. See Jaffar Ali's case 1998 SCM R 2669. It is pertinent to mention here that the prosecution witnesses have made statement in line with each other. The learned counsel has tried to point out some discrepancies in their statements but they are extremely insignificant. None of the discrepancies in variation could be pointed out regarding any material aspect of the case. The discrepancies pointed out by the learned counsel for the appellant/convict, all pertain to extraneous details of the case. None of them in any manner reflects truthfulness of the prosecution version. In case all the pieces of evidence are put in a juxtaposition, then prosecution has proved the case against the appellant beyond any shadow of doubt that the appellant/convict had committed the offence, therefore, we do not find any infirmity or illegality to the extent of conviction, therefore, conviction is maintained. However, there are circumstances which were not taken into account by the Courts while awarding capital punishments to the convict/appellant. We are conscious of the fact that this Court is not a clearing house or a corrective forum to revise the sentences passed by the competent Courts in criminal cases. It is certainly not the function of this Court to interfere and tinker with legal sentences so awarded. However, if the sentence is found to have been measured fancifully in breach of recognized principles of natural justice, this Court, in the interest of justice and fairplay, must intervene. It is an admitted fact that the dead body was seen by the complainant Syed Ashiq Hussain father of the deceased along with his brother Ghulam Abbas, Ashiq Hussain son of Ghulam Habib and one Muzhar Hussain but they did not find any empty or bag near the dead body. The Investigating Officer P.W.15 Muhammad Arshad S.I. Had come to the spot after receiving the information from the complainant and after recording the first information report who had found bag and empty near the dead body. There were 40/50 persons present at the spot near the dead body before his arrival. He had taken into possession crime empty Exh.P.7, a pair of Havai Chappel and photographs vide memos. Exh.P.H. And Exh.P.K. Respectively on 10-10-1999. The appellant was arrested on 5-12-1999 by Khalid Rauf Inspector P.W.16 who also took into possession bag Exh.P/3 and in that bag photographs Exhs.P.4 to 45. It also does not appeal to reason and logic that appellant/convict had kept the photographs in his bag to create the evidence against him which were recovered from him after his arrest on 5-12-1999 as borne out from the statement of P.W.15.
Crime empty was not sent to the expert immediately after taking into possession and the weapon of offence was recovered from the convict/appellant after his arrest as borne out from the statement of P.W.16. P.W.15 Muhammad Arshad had taken possession of Crime-empty Exh.P.7 vide memo. Exh.P.H. On 10-10-1999. His statement is silent to whom he had given the said memo. P.W.14 Muhammad Akhtar stated in his examination-inchief that Muhammad Arshad S.-1. Handed over to him sealed parcel containing crime-empty for safe custody in the Malkhana. This fact was not mentioned in his statement which was recorded by Investigating Officer under section 161, Cr.P.C.
Thrice on 10-10-1999 and 23-10-1999 as evident from cross-examination which is to the following effect:-- "I narrated to the Investigating Officer that parcel containing crime empty was handed over to him by Investigating Officer confronted with Exh.D.C. Where it is not so recorded."
It was also admitted by him in cross-examination that he did not state before the Investigating Officer in his statement Exh.D.C. That the parcel containing crime empty was handed over to Khadim Hussain P.W.4. He also admitted that he did not send crime empty to expert till 1-12-1999.
Khadim Hussain P.W.4 stated in examination-in-chief that he received parcel containing empty bullet on 3-11-1999 from Muhammad Akhtar P.W.14. He handed over to Muhammad Ramzan for onward D transmission in the office of Forensic Science Laboratory. P.W.16 Khalid Rauf arrested appellant on 5-12-1999. He also got recovered the pistol from, him on his pointation. Thereafter he had handed over pistol to P.W.4 Khadim Hussain. This type of recovery of crime empty does not provide strong corroboration qua the prosecution version. Similarly photographs do not corroborate the prosecution version. P.W.9 Syed Ashiq Hussain stated in his examination-in-chief that he along with his companions reached at the spot and saw that bleeding was oozing from the head of his son Adnan Shah. This fact was not in consonance with the medical report otherwise medical evidence alone cannot be E corroborative evidence as the injuries cannot speak of their authorship. See Machia and otherscase PLD 1976 SC 695. It is a settled law that F last seen evidence is a weak type of circumstantial evidence. See Naqibullah's case PLD 1978 SC 21, Rehmat alias Rehman alias Waryam alias Badshaw's case PLD 1977 SC 515 and Fazal Elahi's case PLD 1953 FC 214.
The appellant/convict had taken a specific plea that he was involved in a case on account of sectarian terrorism. This brings us to the question of sentence more particularly that appellant/convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence. We have examined this question in the light of all the circumstances surrounding the guilt. We find mitigating/extenuating circumstance in favour of the appellant for lesser penalty in as much as, the prosecution had failed to connect the convict with the circumstances of photographs H recovered from the spot and the photographs recovered from the bag of the convict because there was no photograph of the deceased in the said photographs as mentioned above. Photograph of one Hafeez was found who was not associated by the police in the investigation. The benefit of doubt can be pressed also in matter of sentence as law laid down by this Court in Mst. Bevi's case 1980 SCM R 859.
6. The provision of law on the subject holding the field is section 302, P.P.C. As amended by the relevant Qisas and Diyat Ordinance which is effective as law laid down by this Court in the case of Federation of Pakistan v. N.-W.F.-P. Government and another PLD 1990 SC 1172. It is better and appropriate to reproduce section 302 of P.P.C. To resolve the controversy:-- "302. Punishment of Qatl-i-Amd.--- Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be;
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable: [Provided that nothing in this clause shall apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.]"
7. In the case in hand clause (b) is applicable. Mere reading the said provision provides the following punishments:-
(i) Punishment with death or.
(ii) Imprisonment for life as Tazir.
8. It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior Courts to lay down guidelines for awarding either of the punishment. Unamended section 302, P.P.C.
Shows that a Judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Dittacase PLD 1976 SC 300.
Now after the said amendment in section 302, P.P.C. Will be little different as a Judge while awarding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons.
The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced and enforceu through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since 1990 in view of section 338-F of P.P.C. As in Islam except for just cause and reason, a life cannot be taken away or in other words put to an end.
9. For what has been discussed above, we are of the view that imprisonment for life will be adequate sentence in the circumstances of this case. We, therefore, alter the sentence. Of death into life imprisonment under sections 302(b), P.P.C. And 12 of Offence of Zina (EOH) Ordinance, 1979 on two counts. The remaining sentences are maintained. The appeal is dismissed with the aforesaid modification qua the sentence.