Through the instant Criminal Original M/s. Fybron (Pvt.) Ltd., the judgment debtor of the decree dated 18.06.2007 passed by the learned Judge Banking Court, has moved for initiating proceedings for contempt of Court against the respondent (Ch. Bisharat Ali) who is auction purchaser of the suit property in pursuance to the execution of the judgment and decree dated 18.06.2007 passed by the learned Judge Banking Court.
2. The precise contention of the learned counsel for the petitioner is that on 19.07.2007 on the C.M.
No, 1-C/2007 in E.F.A. No, 271/2007 an interim injunctive order was issued by a learned Division Bench of this Court to the following effect:-- "Contends that after purchasing the property at a throwaway price the auction purchaser has started dismantling the valuable machinery and parting with its possession.
2. Notice for 16.08.2007. The auction purchaser is restrained, till the next date of hearing, to dismantle the machinery or remove any assets, subject matter of the sale through auction. The auction purchaser, if installs anything new or improves the status of the property, it shall be at his own risk and costs. The decree holder is allowed to station guards at the site to save any pilferage or removal of the machinery. This order will not inure for future, if not specifically extended.
3. This order was further extended vide order dated 16.08.2007 and was later on directed to continue till the next date of hearing vide order dated 10.09.2007. The instant petition was instituted on 8th exceeding [one thousand rupees] or both, if such Court be a Court of Magistrate of the first class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court or Revenue Court not inferior to the Court of Collector;
(c) sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not exceeding fifty rupees or both, if such Court be a Criminal Court or Revenue Court other than a Court referred to in clause (a) or clause (b).
(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in sub-section (1) and alleged to have been committed in relation to any proceeding in such Court by the Court to which such former Court is subordinate within the meaning of sub-section (3) of 5.195.
(4) Any person sentenced by any Court, under this section may, notwithstanding anything hereinafter contained, appeal-- (a)in the case of a sentence by the High Court, to the Supreme Court; (b)in case of a sentence by a Court of Session or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court, and (c)in any other case, to the Session Judge.
(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeal under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against.
Moreover, the provisions of Section 476-A are also reproduced as under:- Section 476-A Forwarding of cases for trial by Courts having Jurisdiction.--(1) If the Court in any case considers that the person accused of any of the offence referred to in Section 476, sub- section (1) and committed in, or in relation to, and proceedings before it, should not be tried under that section, such Court may, after recording the facts constituting the offence and the statement of the accused person, as hereinbefore provided, forward the case to a Court having jurisdiction to try the case, and may require security to be given for the appearance of such accused person before such Court, or it sufficient security is not given, shall forward such person in custody to such Court.
(2) The Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provided.
6. From the bare reading of the above definition coupled with the narration of facts, we find that this is a fit Case for proceeding under the provisions of Sections 476, 476-A Cr.P.C. against Rrespondents No, 2 to 5, which are squarely applicable in this case. As the offence has been committed in relation to the proceedings before the learned Sessions Judge, thus he is directed to proceed under the aforementioned sections against Respondents No, 2 to 5 in this behalf. Besides the above, let non-bailable warrant of arrest of Respondents No, 2 to 5 be also issued and the DPO concerned is directed to ensure their production before the learned Court. However, the convict be sent to jail wherefrom he was got released, to serve his sentence already awarded to him by the learned trial Court through the judgment dated 27.1.2009.
7. With the above direction, this application is allowed and the order dated 12.01.2010 whereby the Respondent No, 2/convict has been acquitted, is hereby recalled with the result that Crl. A. No, 48-J of 2009 shall be deemed pending before this Court.
8. Before parting, it may be stated that it is a matter of great concern that such type of incidents are alarming to the situation and thus with a view to curb the same and also to ensure that the same as may not be repeated in future, we approve the proposals mentioned below as suggested by the learned Sessions Judge, Faisalabad, which are being formed part of this judgment and thus the learned Registrar of this Court is directed to circulate the same to all the Judicial Officers throughout the Province with the direction that before recording the statements in compromise cases, the said proposals shall be strictly followed and adhered to. The proposal are as under:-- (a)In all the Courts computer facilities are available. With every computer Webcam (Camera) be attached which costs only Rs, 2000.00/3000.00.
(b)At the time of recording of statement of a witness or any of the legal heirs of deceased, photograph can be obtained directly from that Webcam.
(c)When, the print of statement is to be obtained, on one side of the said statement the print of photo of the person concerned can also be taken.
(d)By using Webcam and getting printing of photograph from printer, all possibilities of tempering even for replacement of snap shall be eliminated. (Note: a specimen statement with photograph is attached with this report for kind perusal). heirs of the deceased Imam Bakhsh u/S. 544-A Cr.P.C., in default whereof to undergo S.I. for six months. All the sentences were to run concurrently. Iqbal appellant has also been convicted u/S. 324 PPC and sentenced to R.I. for ten years and fine of Rs,50,000/-, in default whereof he shall undergo S.I for six months. Iqbal appellant has further been convicted u/S. 337-A(ii) PPC and sentenced to R.I. for five years. Sentences awarded to Muhammad Iqbal, appellant, u/Ss. 324 and 337A(ii) PPC shall run concurrently. Mumtaz appellant has been convicted u/S. 324/34 PPC and sentenced to five years R.I. with fine of Rs,5,000/- and in default of payment of amount of fine, to further undergo S.I. for one month. Ijaz appellant has been convicted u/S. 324/34 PPC and sentenced to five years R.I. with a line of Rs,5,000/- and in default. whereof to further undergo S.I. for one month. They were' also given benefit of Section 382-B Cr.P.C. The learned trial Court has also submitted Murder Reference No, 475/2006 seeking confirmation of death penalty or otherwise. As all these matters are interlinked and interconnected so are being taken up together.
2. Briefly stated the facts of the case are that the complainant, namely Muhammad Waryyam made statement before police that on 16.10.2004, at about 6:30 a.m., his son Imam Bakhsh, aged about 18/19 years went out from the house on the call of nature and when he reached on Soling Qasim Bagh, all of a sudden Muhammad Hanif, armed with Sota, Iqbal, Mumtaz and Ijaz, armed with daggers, came out from their house. Muhammad Hanif raised lalkara to teach a lesson to Imam Bakhsh for humiliating their women folk. On hearing noise, complainant, his son-in-law Haqnawaz, Mst. Razzan Bibi his wife, Mst. Shehnaz Bibi his daughter, Ramzan s/o Fazal and Fazal s/o Waryam also came out of their houses. In their view, Ijaz accused caught hold of his son while Iqbal and Mumtaz gave dagger blows to Imam Bakhsh with their respective daggers, which hit on his belly due to which intestines of Imam Bakhsh came out. They rushed towards Imam Bakhsh upon which Muhammad Hanif gave repeated Sota blows to the complainant, which hit on his right' ear, left eye and left shoulder. Iqbal gave dagger blow to Ms/. Itazzan, which hit on her head. ljaz and Shehbaz also gave dagger blows to her, which hit at finger of her right hand, elbow of right hand and left rib. Haqnawaz, his son-in-law came forward upon whom lqbal gave dagger blow, which hit on his belly, who fell down. When they attended Imam Bakhsh, he had succumbed to the injuries due to said injuries. Motive behind the occurrence was that few days ago, an altercation took place between womenfolk of accused party and complainant party and due to said grudge, the accused persons committed the occurrence.
3. After investigation, the appellants were sent up to face trial. They were formally charged u/S. 302/324/337-A(ii)/34 PPC to which they pleaded not. guilty and claimed the trial. The prosecution produced as-many as 12 witnesses in support of its version.
4. The ocular account was furnished by the complainant who appeared as PW.1 and narrated the same story as mentioned in the FIR Ex.PA/1. He also added that PWs Faazil and Ramzan could not save my son Imam Bakhsh due to fear. Haqnawaz injured appeared as PW.10, who supported the statement of the complainant. He also added that he was brought to THQ Hospital Kabirwala by Waryam where he was medically examined. PW-3 Mst. Razzan Mai, the injured PW also narrated the same story as mentioned by PWs No, 1 and 2. PW-4 Mst. Shehnaz, daughter of Waryam complainant, is the injured PW, who supported the statements of eye-witness and also deposed the details of injuries received by her and others at the hands of the accused persons. PW-5 Fazil is the injured PW, who also supported the prosecution version and narrated the seat of injuries received by him, deceased and other injured persons at the hands of the accused persons.
5. The medical evidence was adduced through Lady Dr. Fozia Tasleem WMO and Dr. Iftikhar Ahmad Chaudhry, Medical Officer. Lady Dr. Fozia Tasleem appeared as PW.6, who, on 16.10.2004, medically examined Mst. Razzan Mai injured and found as many as four injuries on her person. On the same day, she also medically examined Mst. Shehnaz and found as many as three injuries on her person.
Dr. Iftikhar Alunad Chaudhry appeared as PW.7 who conducted post-mortem examination on the dead body of Imam Bakhsh deceased on 16.102004 and found as many as seven injuries on his person. In his opinion, all the injuries were anti mortem, cause of death was Injury Nos, 6 & 7 individually and collectively in the natural course, damage to stomach, liver, spleen, omen tum, small and large gut. Probable duration, which elapsed between injuries and death was half to one hour and between death and post-mortem examination was 2 to 3 hours. On the same day, he medically examined Haqnawaz, the injured PW and found one injury on his person. On the same day, he also medically examined Muhammad Waryam, the injured PW and noted three injuries on his person.
6. PW.11 Zafarullah SI investigated the case. On 16.10.2004, Muhammad Waryam complainant got recorded his statement Ex.PA. After sending the complaint to police station for registration of case, he went to the place of occurrence alongwith complainant and constables. After inspecting the dead body of the deceased, he prepared the inquest report Ex.PG/1, prepared rough site plan Ex.PR.
He took into possession the blood-stained earth vide recovery memo. Ex.PB/1. He also sent the dead body of Imam. Bakhsh to the mortuary through constable. After this, he went to THQ Hospital Kabirwala where ha prepared injury statements of Haqnawaz Ex.PJ/1, Shahnaz Bibi Ex.PE/1 and Mst.
Razzan Bibi Ex.PD/1 and that of complainant Muhammad Waryam Ex.PK/1. He arrested Muhammad Hanif, Iqbal, Mumtaz and Ijaz on 24.12.2004 and produced them before llaqa Magistrate and got their physical remand. On 3.1.2005, he got recovered Sota P-8 from Muhammad Hanif and took the same into possession vide recovery memo. Ex.PQ. On the same day, Iqbal, Ijaz and Mumtaz accused got recovered dagger P-5, P-6 and P-7, which were taken into possession by him vide recovery memos. Ex.PM, Ex.PN and Ex.PO respectively. Separate cases under Section 13 of Arms Ordinance of 1965 were got registered against the accused persons Iqbal, Mumtaz and Ijaz. On 4.1.2005, nil the accused persons were sent on judicial remand. Ile prepared the challan u/S.173 Cr.P.C. on 18.1.2005.
8. The appellants Muhammad Hanif, Muhammad Iqbal and Mumtaz, in their statements u/S. 342 Cr.P.0 denied the allegations levelled by the prosecution and recoveries allegedly made during investigation. The appellants lqbal and Mumtaz while answering the question that why this case is registered against them and why the PWs have deposed against them, replied that the case is false. They are innocent. The PWs are inimical and interested. They relied on the defence taken by his co-accused Ijaz in the answer of same question. The appellant Ijaz while answering the question why this case is registered against him and why the PWs have deposed against him, replied as under: "The case is false against me and my co-accused. We all are innocent. Actually deceased Imam Bakhsh and myself exchanged hot words prior to the occurrence on which complainant party had a grudge against us. Due to above said grudge, complainant Haqnawaz, Razzan Mai, Mst. Shehnaz along with Imam Bakhsh (deceased) attacked in our Haveli. We rushed out-side on soiling to rescue ourselves, whore Haqnawaz tried to give dagger blows to lqbal co-accused, which hit Imam Bakhsh (deceased) instead of Iqbal. Mst. 'Shehnaz was also injured by the hands of Haqnawaz. All other injuries on the person of PWs are self -inflicted/friendly hands. Complainant with the connivance of police got this case falsely against us. All the PWs are closely related with each other and interested. They have deposed falsely against us due to relationship. We all the accused are innocent. All the recoveries are fake and planted in order to strengthen fake case. The prosecution story is fake and concocted one."
The appellants neither opted to produce defence evidence nor to appear as his own witness as envisaged u/S. 340(2) Cr.P.C.
9. Learned counsel for the appellant contends that the witnesses are not residents of the vicinity where the alleged occurrence took place.
It is contended that the clothes of complainant were not stained with blood. There are major contradictions between the ocular account and the medical evidence. It is next contended that according to medical evidence, Injuries No, 6 & 7 were the cause of death but both these injuries have not been attributed to any of the accused persons. It is next contended that according to statement of I.0 PW-11, the place of occurrence was the in front of the house of the accused, which shows that the complainant party was aggressor. It is also contended that there are general allegations of inflicting injuries against the appellants, which shows that the prosecution is not sure about the roles of the appellants. It is further contended that PW-2 Haq Nawaz and PW-3 Razzan Mai admitted in their statements that none from the inhabitants of the area came at the place of occurrence. It is further contended that PW-1 Waiyam stated during cross-examination that Imam Bakhsh (deceased) totally received two injuries while according to postmortem report he received seven injuries and in order to cover the remaining injuries, the prosecution took the plea that the deceased had fallen on the ground. Ile further stated during cross-examination that clothes of his wife Razzan Mai were stainedl with blood but the same were not produced before the police. lle also admitted that the fight concluded within five minutes. It is further contended that the deceased received injury by the hands of accused party. The prosecution failed to prove its case against the appellants.
10.On the other hand, learned DPG for the state as well as learned counsel for the complainant have opposed the contentions raised by learned counsel for the appellant and submitted that the PWs No, 1 to 4 have not been cross-examined by the defence side on the point of aggression. It is submitted that the injured PWs appeared during evidence and narrated the facts in a fluent and natural manner and their stance could not be shaken during cross-examination. It is also submitted that the medical evidence also corroborates the ocular account. Had the complainantparty launched attack upon the accused persons they would definitely have received some injuries but they have not sustained even a single injury, which shows that they were the aggressors. It is further submitted that recoveries of weapons of offence have been effected from the appellants, which fully connect them with the commission of offence. It is added that the presence of respondents/accused Muhammad Hanifand Ejaz was believed by the learned trial Court but they were not convicted u/S. 302 (b)/34 PPC despite of the fact that they too shared common intention in committing murder of the deceased.
11.We have heard the arguments advanced by learned counsel for both the sides and perused the record minutely with their able assistance.
12.General allegations of inflicting injuries with dagger has been levelled against the appellants Iqbal and Mumtaz. Perusal of FIR as well as the statements of eye-witnesses shows that Imam Bakhsh received two injuries with sharp edge weapon i,e, dagger while in the inquest report three injuries have been mentioned and in the injury statement two injuries have been pointed out whereas the postmortem report indicates that the deceased sustained seven injuries. Nothing is mentioned regarding Injuries No, 1 to 5. Said lacuna has been tried to be filled up during cross- examination of the medical officer PW-7 that the Injuries No, 1 to 5 could be the result of fall of deceased on the ground but the fact remains that the FIR and the ocular account is silent about the same and there is a difference between the injury statement and the inquest report. So far as the Injuries No, 6 & 7 with sharp edge weapon sustained by the deceased are concerned, there is general allegation against the appellant Iqbal and Mumtaz. No specific attribution has been made regarding these injuries. Moreover, the place of occurrence is also in front of the house of accused party, which fact has been admitted by the I.0 during cross-examination so the complainant party seems to be the aggressor one. Recoveries of weapons of offence have also been effected from the appellants/accused. The motive behind the occurrence that the women folk of both the sides quarreled each other few days' prior to the occurrence, has not been established by the Prosecution. Moreover, defence plea taken by the accused side that the deceased Imam Bakhsh and accused Ejaz exchanged hot words prior to the occurrence also does not seem to be plausible.
It seems that both the sides entered into fight duo to some dispute, which resulted into the instant occurrence. It is true that the weakness or non-existence of motive is not fatal to the prosecution but the same can be a good mitigating circumstance. However, attribution of injury upon deceased to Mumtaz does not seem to be based on truth, as he has been tried to be involved in the murder of the deceased by levelling general allegation with Muhammad Iqbal.
13.For what has been discussed above, we are of the view that the appellant Mumtaz did not participate in the murder of the deceased so he is accordingly acquitted of the charge u/S. 302(b)/34 PPC. Moreover keeping in view the mitigating circumstance mentioned above, we convert the death sentence of the appellant Iqbal into imprisonment for life. All the other sentences awarded to the appellants Iqbal and Mumtaz are maintained. The . appellant Ejaz and respondents Muhammad Hanif & Ejaz had been acquitted by the learned trial Court of the charge U/S. 302/34 PPC and convicted in the other offences. They have served out sufficient substantial period of their sentences so by keeping in mind their role in the occurrence their sentences are reduced to already undergone. The Criminal Appeals No, 155 of 2006 and 178 of 2006 are disposed of accordingly while Criminal Revision No, 165 of 2006 is dismissed. The Murder Reference No, 475 of 2006 is answered in the negative and the death sentence is not confirmed.