Muhammad Akhtar Shabbir, J.--By this common judgment, we intend to dispose of Criminal Appeal No, 92 of 2007 (filed by the complainant side) and Criminal Appeal No, 73 of 2008 (filed by the convict-appellant), as both of them are directed against the consolidated judgment dated 23.01.2007, passed by a Division Bench of the High Court of Balochistan, Quetta.
2. Briefly stated the facts of the case, as narrated in the F.I.R., lodged by the complainant Haji Abdul Manan, are to the effect that he lived in the house adjacent to the house of his cousins Meera Jan and Ameer Jan at Killi Shabo. On the fateful day (12.12.2002), he was present in his house when he heard hue and cry coming from the house of his cousins. He rushed to their house where he saw Jameel (the, brother-in-law of his cousin Ameer Jan) along with his brother Allah Muhammad quarreling with Ameer Jan and Meera Jan. Within his sight, accused Jameel, armed with a dagger, inflicted dagger blows at the chest and waist of Meera Jan who sustained serious injuries. The accused-appellant Jameel then attacked Ameer Jan with dagger who also got seriously injured.
The complainant, putting the injured persons in his vehicle, took them to the Civil Hospital but Meera Jan succumbed to injuries while on the way.
3. The prosecution to establish its case against the accused-appellant produced as many as 10 witnesses including the doctor and the investigating officer. The ocular account of the occurrence was furnished by complainant Haji Abdul Manan (PW 1), Ameer Jan (injured PW.2), Sahib Jan (PW.3), Muhammad Sadiq (PW.4) and Wali Jan (PW.5). The medical evidence was furnished by Dr. Muhammad Umer (PW.6) who conducted the postmortem examination of the deceased and by Dr. Muhammad Anwar (PW.7) who examined Ameer Jan, the injured PW. Raz Muhammad S.I. (PW.10) was the investigating officer. The appellant when examined under Section 342 Cr.P.C. denied the prosecution story, pleaded not guilty and professed innocence. He also made a statement on oath under Section 340(2) Cr.P.C. and stated that he had been maliciously implicated in this case.
4. The learned trial Court/Judge, Juvenile Justice/Session:; Judge, Quetta, after trial convicted appellant Jameel Ahmad under Section 308 PPC for causing murder of Meera Jan and sentenced him to 09 years R.I. with payment of Diyat amount to the tune of Rs, 4,70,171/- to be paid to the legal heirs of the deceased. He was also convicted under Section 337-L PPC for causing injuries to Amir Jan and sentenced to two years R.I. with further direction to pay Daman of Rs, 50,000/-. Both the sentences were ordered to run consecutively with benefit of Section 382-B Cr.P.C. also extended in favour of the accused-appellant.
5. The learned High Court, however, altered the conviction of the appellant from Section 308 PPC to that of Section 302(c) PPC and sentenced him to 14 years R.I. with the direction to pay compensation of Rs, 200,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased, in default whereof to undergo six months R.I. The sentence of two years R.I. awarded to him under Section 337-L PPC by the trial Court was upheld but the order of Sessions Judge to the extent of awarding the appellant sentence of one year in default of payment of Daman was set aside. The sentences were directed to run concurrently with benefit of Section 382-B Cr.P.C. Aggrieved by the judgment of the High Court, the convict-appellant as well as the complainant side preferred Jail Petition No, 67 of 2007 and Cr.P.L.A. No, 63 of 2007, respectively, out of which the instant appeals have arisen with leave of the Court.
6. Mr. Tariq ,Mehmood, learned counsel for the appellants (in Cr1. A. No, 92/2007) contended that the prosecution has produced five eye-witnesses of the occurrence who have passed the test of lengthy cross examination; that one of the eye-witnesses, Amir Jan (PW-2) is an injured witness; that the presence of eye-witnesses at the spot is natural and undoubted; that the medical evidence including the postmortem report and the injury statement by Amir Jan (PW-2) has neither been denied nor rebutted by the defence; that Mst. Nelofer, sister of the accused Jameel Ahmed, on whose call the latter along with his real brother Allah Muhammad reached her house and committed the murder of Meera Jan, has not appeared in support of her brother to prove his innocence or false involvement and that the guilt of accused Jameel Ahmed is fully established and he is liable to be punished under Section 302(b) PPC. He further contended that the minor offender of "qatl-i-amd" in case of punishment of Ta'zir, though, avails the benefit of minority in the matter of sentence under Section 302(b) PPC but cannot claim the benefit of Section 308 PPC. In this context, he placed reliance on the cases of Iftikhar-ul-Hassan v. Israr Bashir (PLD 2007 SC 111) and Abdus Salam u. The State (2000 SCM R 338). He lastly contended that both the accused Jam eel Ahmed and his brother came with the intention to commit the offence armed with a dagger which was used in the commission of the offence which clearly demonstrated intention to murder the deceased; that there is no evidence on the file of the case establishing the loss of power of self-control on the part of the accused while committing the crime and, such the case was not covered by Section 302(c) PPC but fell within the scope of Section 302(b) PPC as there was no mitigating circumstance entitling the accused for lesser penalty and case for enhancement of sentence is fully made out.
7. On the other hand, Dr. Babar Awan, Sr. ASC, for the accused-appellant (in Cr1. A. No, 73/2008) vehemently opposed the arguments of the learned counsel for the appellant (in Crl.A. No, 92/07), contending that the impugned judgment of the High Court suffers from non-reading of material evidence on record; that no memo of arrest of accused from the spot (house of the deceased) is available on the file; that the alleged occurrence took place on 12.12.2002 and the blood stained 'shirt' and `bunyan' of the deceased Meera Jan were taken into possession on the same day while the `shalwar' of the deceased has been shown to have been taken in possession on 14.12.2008 i,e, after two days of the occurrence. He further contended that the appellant Jameel Ahmed appeared as his own witness under Section 340(2) Cr.P.C. and his statement/defence version has not been clearly discarded nor put in juxtaposition with the prosecution version testing plausibility of the same; that neither the wife of the deceased nor Mst. Nelofer, the wife of the injured PW Ameer Jan, have been examined and such important evidence was withheld by the prosecution. He contended that as per Article 129 of the Qanun-e-Shahadat Order, 1984, the presumption of existence of this fact would go against the prosecution and in favour of the accused as that evidence which could be produced but was not produced, would, if produced, be unfavourable to the person who withholds it. He lastly argued that the High Court has erroneously altered the sentence awarded to the accused-appellant under Section 308 PPC by the trial Court. He forcefully argued that the prosecution story is full of contradictions, discrepancies and the accused is entitled for acquittal.
8. The learned Additional Advocate General, Balochistan, however, supported the impugned judgment of the High Court.
9. We have heard the arguments advanced by the learned counsel for the parties as also by the learned Law Officer and examined the record with their assistance.
10.Both the Courts are in disagreement with each other in convicting and punishing the accused.
The trial Court convicted him under Section 308 PPC for guilt of `qatl-i-amd' not liable to Qisas and sentenced him to 09 years R.I. and Diyat amounting to Rs, 4,70,171/-, to be paid to the legal heirs of the deceased Meera Jan. He was further convicted under Section 337-L PPC for causing injury to Ameer Jan and sentenced to 02 years R.I. with payment of Daman of Rs, 50,000/-, to be paid to the injured and in default in payment of Daman, to further undergo imprisonment for one year S.I.
While the High Court altering the conviction of the accused from 308 to 302(c) PPC observed that appellant is not liable to be convicted under Section 302(b) PPC. So he was sentenced under Section 302(c) PPC and was ordered to undergo 14 years R.I. with direction to pay compensation of Rs, 200,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to further undergo six months R.I. However, the sentence awarded under Section 337-L was maintained. The benefit of Section 382-B Cr.P.C. was extended in favour of the accused-appellant. The sentences were ordered to run concurrently.
11. From the above, it is proved that the trial Court as well as the High Court were of the opinion that the accused is not liable to be punished under "Qisas". So far as guilt of the accused appellant is concerned, both the Courts concurred.
12.The questions that require determination before this Court are (i) whether the accused is entitled for acquittal from the charge of murder; (ii) whether his sentence is to be enhanced; and
(iii) which of the two sentences awarded by the that Court or by the High Court be maintained?
13.Having examined the evidence and record of the case, we find that the prosecution produced the ocular account, medical evidence, recovery of crime weapon, blood stained earth and grass, blood stained clothes put on the day of occurrence by the deceased and the circumstantial evidence. The ocular evidence has been furnished by Abdul Manan (PW.1) cousin of the deceased, Ameer Jan (injured PW.2) real brother of the deceased, Sahib Jan (PW.3), Muhammad Sadiq (PW.4) and Wali Jan (PW.5). The evidence of the eye-witnesses has proved the cause of assault by the accused upon the deceased and the injured PW Ameer Jan. These witnesses have undergone the test of lengthy cross examination but their presence at the spot and credibility could not be shattered by the defence except their relationship with the deceased. The eye-witnesses were natural witnesses of the occurrence and are as good as any other independent witness. The defence has failed to bring on record any ill-will or animosity qua the PWs or the police. The mere relationship of the prosecution witnesses with the deceased is no ground to discredit their evidence if it is proved that the same is straightforward, fair and confidence inspiring as laid down in the cases of Umerzad v. The State (1990 SCM R 571), Bashir Khan v. The State (1995 SCM R 900) and Nazir Ahmad v. Muhammad Siddique (PLJ 1996 SC 153).
14.The testimony of the eye-witnesses has been corroborated by recovery of crime weapon (Ex.
P/4-A), blood stained earth and grass and the blood stained clothes of the deceased. The statement of the injured eye-witness Ameer Jan is very important which alone is sufficient to establish the prosecution version. The defence has not proved or taken a stance regarding mala fide or animosity qua the prosecution. The accused is the real brother of Mst. Nelofer, wife of injured Ameer Jan (PW.2), on whose telephone call the accused and his brother came to the spot with a dagger in hand. The evidence of Dr. Muhammad Umer (PW.6) who conducted the postmortem examination of the deceased and Dr. Muhammad Anwar (PW.7) who examined the injured, also supports the ocular account which has not been controverted by the defence.
15. The accused-appellant Jameel Ahmed has admitted reaching to the house of his sister Mst.
Nelofer on her telephonic call but twisted the story and stated that when his sister informed him that both the brothers Meera Jan (deceased) and Ameer Jan had quarreled with each other, he reached her house and saw them in injured condition lying in the house. The presence of other PWs has also been admitted by the accused. The statement of the accused-appellant itself supports the factual aspects of the prosecution story.
16.As regards the objection of the learned counsel for the appellant Jameel Ahmed that the statement of the accused under Section 340(2) Cr.P.C. has not been discarded or taken into consideration by the High Court, it would be appropriate to observe that both the Courts after taking into account the prosecution evidence and the defence version, have believed the ocular evidence produced by the prosecution and found the accused-appellant guilty of the murder. If put to juxtaposition with the prosecution version, we do not find it plausible; firstly that there is no evidence of longstanding enmity of the accused party with the family of the deceased because as per his own statement, the relations between his sister Mst. N )fer and her husband Ameer Jan were pleasant and cordial. If, for instance, this crime was not committed by Mst. Nelofer's brother, there is no reason for his false involvement and substitution instead of the real culprit. Secondly, as per the statement of the Investigating Officer (PW.10), the accused-appellant was arrested from the room of his sister, where he had confined himself after the occurrence and the door of the room was locked by the inmates of the house. The recovery of weapon of crime has been effected from his possession. Thirdly his "Pajero" Vehicle No, IDF-981 has also been taken into possession by the police of P.S. Airport which reached immediately on information of commission of murder and then handed over the same to the Investigating Officer.
17.As to the argument of the learned counsel for the accused-appellant that important evidence has been suppressed by the prosecution in violation of Article 129 of the "Qanun-e-Shahadat"
Order, 1984, suffice it, to observe that it is admitted by the accused-appellant that after the occurrence her sister has been residing in the house of her parents. If it was so why the defence had not produced her in defence to prove his innocence. This argument of the learned counsel being inconvincible is repelled.
18.As per the statement of PW-2 Ameer Jan, the appellant along with absconding co-accused reached to the house, of his sister where she instigated him by saying that her husband Ameer Jan had insulted her. Upon this, the accused-appellant Jameel Ahmed and his co-accused attacked Meera Jan in furious condition and the appellant caused injuries on his chest and back. The chest injury of the deceased was fatal and was the cause of his death. Taking into account the statement of PW-2, there would be no justification for ignoring the testimony of this injured who is an independent and intrinsic witness. Had the appellant reached the spot with intention to kill Ameer Jan, husband of his sister, he would have attacked and killed the deceased in the first instance rather assaulting and causing serious injuries to his brother Meera Jan.
19.The trial Court has convicted the appellant under Section 308 PPC. A minute study of the said section would show that it is attracted only in the cases liable to "Qisas" in which by virtue of provisions of Sections 306 & 307 PPC, the punishment of "Qisas" cannot he imposed or enforced and not in the cases in which punishment is awarded as "Ta 'zie. Reference can be made in this context to the cases of Ghulam Murtaza v. The State (2004 SCM R 4) and Iftikhar-ul-Hassan v. Israr Bashir (PLD 2007 SC 111). Even otherwise, Section 304 PPC contemplated "proof of Qatl-i-Amd" liable to Qisas, which is reproduced as under:-- "304. Proof of Qatl-i-Amd liable to qisas, etc.--(1) Proof of Qatl-i-Amd liable to qisas shall be in any of the following forms, namely:-
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No, 10 of 1984).
2. The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas."
20. The facts of the instant case, when put to the test of "proof of Qatl-i-Amd liable to Qisas" as provided in the above referred provision of law, and the dictum laid down by this Court not fulfilling the required criteria for the purpose, neither the accused had made before the Court of competent jurisdiction a voluntary and true confession nor Article 17 of the "Qanun-e-Shahadat" Order, 1984, applied. The High Court has rightly observed that the appellant is not liable to conviction under Section 302(a) PPC, for want of application of Section 304 PPC.
21. It is admitted position by the parties and is borne out from the evidence that the appellant was under 18 years of age while committing the offence and thus is entitled for a lesser penalty as according to the injunctions of Islam, the punishment of "Qisas" is not applicable to his case.
22.In view of what has been discussed above, we while maintaining the sentence of the accused- appellant awarded by the High Court under Section 302(c) PPC, vide the impugned judgment, are not inclined to interfere with the same. Both the appeals being devoid of any force are according dismissed.