' KHAWAJA SHAHAD AHMED, J.---All the three captioned appeals have been addressed against a judgment and order of the Shariat Court dated 11-5-2007. In Criminal Appeal No,28 of 2007 it has been prayed and pleaded during the course of arguments that the judgment and order of the Shariat Court dated 11-5-2007 and that of the District Criminal Court Bhimber dated 12-5-2000 be recalled to the extent of order of acquittal recorded in favour of the respondents Shamim Akhtar, Sher Afzal, Mst. Raqia Begum and Babar Hussain. Criminal Appeal No, 29 of 2007 has been filed by the complainant, Nasrullah, against the principal-accused Sabir Hussain for enhancement of the sentence recorded against the convict-respondent whereas Criminal Appeal No, 31 of 2007 has been filed by the convict-appellant Sabir Hussain for acquittal from the charge of murder.
2. Although Criminal Appeal No,28 of 2007 has been filed by Nasrullah against Shamim Akhtar and others, we deem it proper to take up the case of the cinvict-appellant Sabir Hussain whereby he has pleaded for acquittal and then the other appeal titled Nasrullah v. Sabir Hussain and others, which has been filed for enhancement of sentence recorded against Sabir Hussain, convict. The third appeal titled Nasrullah v. Shamim Akhtar and others is in fact an acquittal appeal as Shamim Akhtar and others have been acquitted by the each Court below, which shall be considered in the light of principles governing the acquittal appeals.
3. Precise and common facts of all the three appeals are that according to an F.I.R. Recorded on 31- 8-1992 at 11-00 p.m. At Police Station Ali Beg, which was reported to the Police by the complainant, Sarfraz Ali Khan, that his cousin Abdul Hameed, deceased was proceeding towards Bagali to join a funeral ceremony of one Syed Ahmed Shah. When he reached at Thathi, Muhammad Siddique and Sabir Hussain, waylaid in a courtyard of a shop. Muhammad Siddique directed Sabir Hussain to do away with his (the deceased's) life. Sabir Hussain fired at Abdul Hameed with a Kalashnikov, who after sustaining several injuries, fell down. Mst. Shamim Akhtar, who was also proceeding a bit ahead of the deceased, also sustained serious injuries of firing. Abdul Hameed succumbed to the injuries on his way to the hospital. After completion of the investigation, as provided by law, the named accused were challaned in the competent Court and after trial Sabir Hussain, convict- appellant, was sentenced to 18 years rigorous imprisonment under section 5 of the Islamic Penal'
Laws Act and a fine of Rs,50,000 under section 15 of the same Act, which amount of fine had to be given to Mst. Raqia Begum, prosecution witness No,4, who had also received injuries in the occurrence. As far the other accused are concerned, they were acquitted. On appeal the judgment was upheld by the Shariat Court through the impugned order.
4. In the appeal before us although correctness of the judgment recorded by the Courts below has been disputed on merit and facts of the case by referring to different parts of the statements of the complainant and the prosecution witnesses but at the stage of arguments a legal argument has been raised by Ch. Muhammad Mumtaz, the learned counsel for the convict-appellant. While placing on record the remissions the convict had earned during his confinement in jail, he has submitted that the convict has already undergone the legal sentence of 18 years awarded to him by the trial Court. While calculating the period he has submitted that the convict-appellant has completed the sentence awarded to him but has not so far been released although he has served a sentence of more than 20 years. On this sole ground he pleaded that the counter appeal filed against the convict Sabir Hussain, for enhancement of sentence and award of death sentence either as ta'zir or qisas by the complainant party, cannot be heard, therefore, the same needs to be dismissed. While supporting his main argument he relied upon the case reported as Bahadur Ali and others v. The State and others 2002 SCM R 93.
5. While rebutting the main argument of the learned counsel for the convict-appellant, Raja Inammullah Khan, the learned counsel for the complainant, submitted that the sentence awarded to the appellant will complete in 2011, therefore, the argument of the learned counsel for the convict-appellant is not maintainable under law. While supporting his arguments on this point he has referred to the case of Abdul Rashid reported as 2001 PCr.LJ 524, wherein the Supreme Court of Azad Jammu and Kashmir on an appeal enhanced the sentence of imprisonment to death.
6. The learned Advocate-General supported the version taken by Raja Inaamullah Khan, the learned counsel, that the legal sentence awarded against the convict-appellant cannot bar hearing of the appeal for enhancement nor can this Court be asked to ignore the merit of the case, which in its estimation, clearly brings the guilt home to the appellant and normal sentence of death being requirement of law, the appellant doesn't deserve any leniency. The learned Advocate-General also submitted that as the case has been proved against the appellant, the two Courts below failed to record normal sentence of death whether as a ta'zir or as qisas.
7. The argument raised by Ch. Muhammad Mumtaz, the learned counsel for the convict-appellant, being of vital importance and a point of first impression, needs consideration, therefore, we proceed to decide this point before considering the merit of the cross-appeals. The record reveals that the trial Court after considering some facts known as mitigating circumstances awarded 18 years imprisonment to Sabir Hussain. At the time of announcement of the judgment and even before that the convict absconded but finally was arrested and kept in custody. If the remissions earned by the appellant are included in the period of sentence of 18 years and the time he remained absconded, is excluded, still a conservative calculation reveals that the convict- appellant is in jail for a period of more than 20 years whereas after calculating the period of sentence, according to the above referred method, he had to be released after completion of 18 years sentence awarded to him by the trial Court.
8. As far the second limb of argument that the cross-appeal for enhancement of sentence couldn't be heard when the legal sentence of life imprisonment (14 years) or more than that has already been served, we are of the considered view that the argument advanced by the learned counsel for the convict-appellant has a force and he has rightly relied upon the case reported as Bahadur Ali and others v. The State and others (2002 SCM R 93) wherein a full bench of the Supreme Court of Pakistan held in para 8 of the judgment as under:-- "8. Having heard the learned counsel for the parties we are of the considered view that since appellant Bahadur Ali has served out a legal sentence on the charge of Qatl-e-amd his appeal as against conviction is disposed of as not pressed. On legal plane it has been the consistent view of this Court that on the charge Qatl-e-Amd if a convict has served out a legal sentence of imprisonment for life, appeal seeking enhancement of the sentence to death couldn't be legally heard as the enhanced sentence, if recorded, would be hit by the doctrine of double jeopardy. It is well settled that as per mandate of Article 13 of the Constitution no person shall be prosecuted or punished for the same offence more than once;...."
9. We may, however, refer here that the Interim Constitution Act, 1974 doesn't . Contain the specific provision/fundamental right as contained in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, but keeping in view the scheme of law dealing with the doctrine of double jeopardy administered by the superior Courts of Azad Jammu and Kashmir and powers of this Court to do complete justice in any case we own the same and dispose the appeal filed by the convict- appellant in the manner recorded in the end, of this paragraph. The argument of the learned counsel that the sentence recorded against the convict-appellant has to complete in the year 2011, doesn't find any support from record and as far the case-law referred as 2001 PCr.LJ 524 is concerned, suffice it to say that in the referred judgment this point has neither been discussed nor decided in the manner to constitute a precedent. We, therefore, dismiss the captioned cross- appeals by holding that the convict-appellant having already undergone legal sentence of more than 14 years at the relevant time, is entitled to be released forthwith.
10. Now coming to the third appeal filed against Shamim Akhtar and others, who have been acquitted by each Court below, we may record here that this appeal has to be heard keeping in view the principles and guidelines laid down by the Superior Courts from time to time, who have held that the concurrent findings of the Courts below in criminal cases cannot be recalled and the evidence cannot be reappraised as a routine. The judgments so recorded by the Courts below have to be maintained unless found perverse, capricious, arbitrary or based on exclusion of evidence compulsorily to be admitted and relied upon under the provisions of Evidence Act. The evidence brought against the acquittal of the respondents has not been believed by the trial Court and while dealing with their cases the Shariat Court has stated at page 30 of the judgment as under:-- "As far the case of other accused-respondents is concerned, the learned counsel for the complainant and the State have frankly conceded that the prosecution has failed to prove its case against them beyond any shadow of doubt; therefore, the impugned judgment is maintained to their extent."
' In absence of any specific denial the findings of the Shariat Court being correct, we need not hold or even presume otherwise. We may, however, repeat our time and again recorded findings that once an accused is acquitted by the trial Court, the double presumption of innocence rests in him, which cannot be recalled by finding fault in shape of minor discrepancies and irrelevant contradictions in the prosecution evidence. After going through the judgments recorded as PLD 1985 SC 11, 1992 SCM R 96 and Abdul Khaliq v.. Muhammad Afsar Khan and 4 others 1995 PCr.LJ 391, we record the wisdom of the Supreme Court of Pakistan recorded in the case reported as Mlrza Noor Hussain v. Farooq Z1aman and 2 others (1993 SCM R 305) on the point as under:-- "Trial. Court's judgment having been supported by sound reasons Supreme Court could not substitute its own findings in place thereof unlesg it reached the conclusion that the findings of the trial Court as well as* those of the High Court were `artificial, shocking, ridiculous, based on misreading of evidence and leading to miscarriage of justice'. ---No legal error was found in the judgments of the lower forums after scanning the evidence."
' Upshot of the above discussion is that all the three appeals are dismissed with the findings that the principal-accused, namely Sabir Hussain, has completed the legal sentence recorded against him and is still in jail even after having undergone the sentence, shall be released forthwith, if not required in any other case.