' SHAHZADO SHAIKH, J.--- Appellant/Salam alias Toor Jan has filed Criminal Appeal No,1/Q of 2012 against the judgment dated 10-4-2012 passed by the learned Additional Sessions Judge, Pishin, in Hadood Case No, 23 of 2007, whereby he was convicted under section 302(b), P.P.C. And sentenced to death with order to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased/Hafiz Dost Muhammad. He was also convicted under section 392, P.P.C. And sentenced to eight years' R.I. With fine of Rs,10,000 or in default thereof to further undergo three months' S.I. However, the learned trial Court kept the case file dormant to the extent of absconding accused Abdul Ali alias Kochi.
' The appellant has also filed Criminal Appeal No,2/Q of 2012 against the judgment dated 10-4-2012 passed by the same learned trial Judge in Arms Case No, 25 of 2007, whereby he was convicted under section 13-E of the Arms Ordinance, 1965 and sentenced to three years' R.I. With fine of Rs,3,000 or in default thereof to further undergo two months' S.I. The benefit of section 382-B, Cr.P.C.
Was extended to the appellant in both the above-mentioned judgments. The learned Additional Sessions Judge, Pishin has also sent murder reference for confirmation of death sentence, which was registered as Criminal Murder Reference No,1/Q of 2012.
' Through this consolidated judgment, we intend to dispose of above-mentioned three connected matters as they arise out of the same occurrence.
2. Criminal Appeal No,2/Q of 2012 against the judgment dated 10-4-2012 passed by the same learned trial Judge in Arms Case No,25 of 2007, whereby the appellant was convicted under section 13-E of the Arms Ordinance, 1965, has been transferred by the Hon'ble High Court of Balochistan, vide order dated 30-11-2011 due to lack of jurisdiction.
3. Since an important question of jurisdiction was raised in this case, it is therefore, imperative to consider the same, first.
4. The Hon'ble High Court of Balochistan, while discussing this issue, in their revered order, dated 30-11-2011 leading to the transfer of this case to the Federal Shariat Court, analysed very ably its legal aspects and concluded in the interest of delivery of justice as follows:-- "(7) The main controversy in this case is whether these Jail Appeals filed under section 410 of the Code of Criminal Procedure, 1898 and Murder Reference No,1 of 2008, sent by the Additional Sessions Judge, Pishin, as required under section 374 of the Cr. P. C. For confirmation of the death sentence or otherwise, are competent before this Court within the purview of section 24 of the Ordinance of 1979. For better understanding of the proposition, it would be appropriate to reproduce herein below section 24(2) of the Ordinance of 1979: "The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), relating to the confirmation of the sentence of death, shall apply, mutatis mutandis to confirmation of sentences under this Ordinance."
' There is no cavil to the proposition that the sentence awarded under the Hudood Laws requires confirmation, however, the question arises as to whether the said confirmation is to be made by the High Court within the meaning of section 374 of the Cr.P.C., or by the Federal Shariat Court, which is the appellate Court under the Ordinance of 1979? Under the Ordinance of 1979, there are two provisions, whereunder the sentence passed in an offence under the Hadood Laws requires confirmation by the appellate Court i.e, section 9(4) and section 17(5) of the Ordinance of 1979, which speak as under: "S. 9(4) Punishment under subsection (1) or subsection (2) shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and, until the punishment is confirmed and executed the convict shall be dealt with in the same manner as if sentenced to simple imprisonment.
' S. 17(5) Punishment under subsection (3), except that under the second proviso thereto, or under subsection (4), shall not be executed unless it is confirmed by the Court to which an appeal from the order of conviction lies, and if the punishment be of amputation, until it is confirmed and executed, the convict shall be dealt with in the same manner as if sentenced to simple imprisonment."
(8) A bare perusal of the above quoted provisions leave no room for doubt that the death sentence passed by the Additional Sessions Judge in respect of a case registered under section 17(4) of the Ordinance of 1979, requires to be confirmed by the Federal Shariat Court, irrespective of the fact that the sentence that has been awarded was by way of ta'zir.
(9) Thus in view of the above position, the forum for confirmation of the death sentence was the Federal Shariat Court and not the High Court.
(10) Reverting to the fate of Criminal Jail Appeals Nos.8 and 9 of 2008, we are of the considered view that in pursuance of Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), appellate criminal jurisdiction against the order of a Sessions Judge, holding trial under the "Hudood Ordinance" has been conferred upon the Hon'ble Federal Shariat Court vide second proviso to section 24(1) of the "Hudood Ordinance" which provides as under: "24. Application of Code of Criminal Procedure 1898 (Act V of 1898).
(1) The provisions of the Code of Criminal Procedure 1898 (Act of 1898), shall apply, mutatis mutandis' in respect of cases under this Ordinance: Provided that if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and to punishment thereof be convicted and punished for that offence: Provided further that the offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorized under Section 30 of the said Code and an appeal from an order under either of the said section or form an order under any other provision of this Ordinance which imposes sentence of imprisonment for a term exceeding two years, shall lie to the Federal Shariat Court."
(11) A reading of the above provision of the Ordinance of 1979 clearly demonstrate that offences punishable under the "Hudood Ordinance" are exclusively triable by a Court of Session and an appeal from the order of the Court of Session thereunder lies to the Hon'ble Federal Shariat Court.
It has also been provided therein that if an offender has committed different offences, out of which, one is covered by the Hudood Ordinance and the other by some other law, then if the Court is competent to try that other offence or offences and to award punishment, then that offence or offences will also be tried along with the offence under the "Hudood Ordinance". The only condition is the holding of a trial under the "Hudood Ordinance" for maintainability of an appeal before the Hon'ble Federal Shariat Court. While considering the case of the appellant on the touchstone of above stated criteria, the record reveals that the F.I.R. Has been lodged under section 17(4) of the Ordinance of 1979, challan was submitted and forwarded by the Assistant District Attorney under section 17(4) of the Ordinance of 1979 and the cognizance of the case was taken by the Additional Sessions Judge, Pishin, under the Hudood Laws that is why the case was registered as Hudood Case No,23 of 2007 as well as the charge dated 30th August, 2007 was also framed under section 17(4) of the Ordinance of 1979. Thus, the instant appeals should be filed before the Hon'ble Federal Shariat Court being the competent forum. By holding the view, we are fortified by the dictum laid down by the Hon'ble Supreme Court in an unreported case of "Bashirullah v. The State", vide order dated 8th February, 2001, wherein it has been held as under: "We have heard both the sides at length and perused the file as well as various judgments cited at the bar. As far the facts of this case are concerned, they would be the determining factor, as far the question of jurisdiction is concerned. In the instant case, complainant was deprived of his Datsun Pick-up and the driver was done to death in the same 'transaction, therefore, police rightly applied section 17(4) ("Haraabah") of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. Learned trial Court framed the charge under section 302/34, P.P.C. As well as under section 17(4) ("Haraabah") of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. At the conclusion of the trial benefit of doubt was given to the accused for lack of absolute proof as far as offence of Haraabah was concerned. But the offence of murder was established and they were accordingly convicted. The proposition in the instant case would be, if the complainant wanted to impugn the judgment by challenging acquittal of the accused for Haraabah offence, obviously, an appeal against acquittal had to be filed before the Federal Shariat Court and in such circumstances argument that appeal against conviction would lie before the High Court, would be most illogical. Jurisdiction of Court has to be determined in such like cases at the time of framing of charge, which was exclusively of Shariat Court as far the present case is concerned."
' We, therefore, hold that Article 203-G of the. Constitution is a barring provision conferring exclusive jurisdiction on the Federal Shariat Court in respect of all those matters, wherein the proceedings fall within the powers of jurisdiction of the Court. Thus, these appeals as well as the murder reference are not maintainable before this Court. Resultantly, the files of the aforesaid appeals and murder reference along with original records be sent to the In-charge, Federal Shariat Court, Quetta Registry, to be placed before a Bench of Hon'ble Federal Shariat Court for consideration, after retaining photocopies thereof for record purposes."
' Following may provide pointers to further understand the wisdom and judicial make up of mind behind the above magnanimous conclusion of the honourable High Court of Balochistan.
' Let us, at the outset, examine lexical and legal nuance of the terms jurisdiction, transaction, and episode, which are very important in the question under consideration.
Jurisdiction of the court is its right and power to interpret and apply the law, i.e,, the right or power to administer justice and to apply laws. It defines the exercise or extent of such right or power or authority, specific and general.
' There are different types of jurisdiction which add enough scope and flexibility to its basic concept in order to meet various situations of adjudication in order to ensure full justice, e.g.: ' PENDENT JURISDICTION (pen-dent). A Court's jurisdiction to hear and determine, a claim over which it would not otherwise have jurisdiction because the claim arises from the A same transaction or occurrence as another claim that is properly before the court. For example, if a plaintiff brings suit in federal court claiming that the defendant, in one transaction, violated both a Federal a State law, the federal court has jurisdiction over the federal claim (under federal- question jurisdiction) and also has jurisdiction over the State claim that is pendent to the federal claim. Pendent jurisdiction as now been codified as supplemental jurisdiction. 28 USCA 1367.---Also termed PENDENT-CLAIM JURISDICTION. See SUPPLEMENTAL JURISDICTION. Cf. ANCDLARY JURISDICTION.
(Cases: Courts =27; Equity =35; Federal Courts =14. C.J.S. COURTS 66;, EQUITY 9, 80, 87.] (Black's Law Dictionary)
' Transaction may mean the act of transacting (within or between groups) or the fact or state of being transacted, or something transacted.
It connotes dealing(s), including group action(s). It also means affair(s), operation(s).
' In nearer terms in Arabic and Urdu, transaction may be translated as ' In general, meanings of the term transaction include deal, matter, affair, act, operation, business, action, event, proceeding, enterprise, undertaking, deed, occurrence, performance, handling, settling, conduct, execution.
' Transaction is the act or an instance of conducting business or other dealings;... Something performed or carried out; any activity involving two or more persons.
(Black's Law Dictionary)
The term 'episode' comprehends meaning and nuance of an incident or scene in the course of a series of events, etc., within a narrative, integrated within the main story or digressing from it one of a number of loosely connected, but thematically related, scenes or events constituting an occurrence; event, or series of events (Dictionary.Com, Collins English Dictionary).
' Now let us examine nuance of these terms in legal parlance and practice.
Honourable apex Court and Higher Judiciary have laid down elaborate principles while dealing with question of jurisdiction, e.g.:-- ' Jurisdiction means the power of administering justice according to the means which law provides, and subject to the limitations imposed by law and such limitations may be territorial or pecuniary or that may relate to the nature of litigations. ABDUL HAQUE v. SUKHIAL KARACHI HIGH COURT SINDH 2006 CLC 286.
' In the present case neither territorial nor pecuniary question is involved. So far nature of litigation is concerned, the same will come under discussion in following pages.
' Such question being of fundamental nature in judicial proceedings should be decided first on priority basis without recording evidence on issues relating to merits of the case---Where court once consumed time in recording evidence, then effort should be made to dispose of case both on law points including question of Jurisdiction as well as on merits--Principles. Hafiz MUHAMMAD SIDDIQUE ANWAR v. FAISALABAD DEVELOPMENT AUTHORITY 2007 SCM R 1126.
' In view of the above important principle, the learned counsel for appellant, at the outset, was asked to satisfy the Court on the legal position of its jurisdiction.
' It may be pertinent to point out that although the offence under section 13-E of Arms Ordinance, 1965 in F.I.R. No,40 of 2007 dated 20-6-2007 was triable by the Magistrate, but the same was tried by the learned Additional Sessions Judge, Pishin, vide judgment dated 10-4-2008. Appeal against conviction was filed by the appellant/accused, before the honourable High Court of Balochistan, Quetta, who vide its order dated 30-11-2011, transferred the Appeal to this Court, which was registered here as Criminal Appeal No,2/Q of 2012 on 2-1-2012.
Taking some guide line, from the case law, quoted above, (2007 SCM R 1126), time consumed, its costs and human agony, involved in any proposition, if brought for directing the Parties to approach different forums, in split jurisdiction, at this stage, would also need the given appropriate and due consideration.
' Jurisdiction of a Court was always the core question, which had to be dealt with immediately to the exclusion of all other business, because that was what would decide the competence or otherwise of a Court or Tribunal to proceed further in the matter AAMIR KHURSHID MIRZA v. STATE 2006 CLD 568 LAHORE HIGH COURT.
' While examining different aspects of the question of jurisdiction, following has also been kept in view:-- Whenever any Court exercises normal appellate jurisdiction, it can exercise all the powers which are vested in forums below for the reason that appeal is continuation of original proceedings.
TOWELLERS LTD. Through Chief Operating Officer v. GOVERNMENT OF PAKISTAN 2006 PTD 310 SINDH HIGH COURT.
' Jurisdictional objection could not be accepted without determination. AL-KHA IR MIRPUR (PVT.) LTD. v. PAKISTAN through Secretary Ministry of Finance and Economic Affairs 2005 PTD 1596 LAHORE HIGH COURT.
' Term "Jurisdiction" which refers to legal authority and competence of Court to administer justice is conferred by law only---Jurisdiction can neither be conferred nor ousted by consent--- Submission to Jurisdiction will not confer the Court with Jurisdiction where same did not exist.
MUHAMMAD SADIQ v. Government of PAKISTAN 1988 CLC 123 LAHORE HIGH COURT.
' In the present proposition neither the conferment nor ouster of exclusion of jurisdiction is constituted in specific terms. Following also needs to be considered carefully:-- Exclusion of Jurisdiction of Court not to be readily inferred---Statute should not be construed as to oust or restrict jurisdiction of Court, unless very explicit words are used in statute itself in that behalf---Such an intention should not normally be imputed to Legislature. CAPITAL ASSETS LEASING CORPORATION LTD v. INTERNATIONAL MULTI LEASING CORPORATION LTD 2003 CLD 1713 LAHORE HIGH COURT.
' The most important guiding principle in this regard is found in the following:-- ' Ouster of Jurisdiction of superior Courts---Not to be lightly inferred---In case of doubt, same be resolved in favour of Jurisdiction rather than its ouster. Sh. MUHAMMAD RIAZ v. GOVERNMENT OF THE PUNJAB 2003 PSC 1496 LAHORE HIGH COURT.
If the Court had Jurisdiction to make an order it had necessarily the power and Jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect. KHAAVIR SAEED RAZA v. WAJAHAT IQBAL 2003 CLC 1306 LAHORE HIGH COURT.
' Here it is important to note that 'power and jurisdiction to enforce' have to be facilitated and strengthened, i.e,, not to be weakened or hindered, in order to save its machinery from being clogged.
' At this point, in the light of the above guiding principle, it may be very appropriate to refer to the inherently necessary Revisional power and jurisdiction of Federal Shariat Court in "any case decided by any criminal court under any law relating to the enforcement of Hudood": Article 203DD of the Constitution prescribes as follows:--
(1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood...."
' It devolves much wider responsibility on Federal Shariat Court It grasps correlated or inter-related episodes interlaced in one or the same composite transaction (occurrence or offence comprising series of episodes in the same transaction), by using the phrase: "relating to the enforcement of Hudood", in any case, decided by any criminal court, under any law.
' This is because trial and punishments may be interrelated in such specific composite transactions and provisions dealing with one crime and its consequent punishment(s) are dove-tailed with other punishments related to the same matter or same transaction. A person may be found guilty of multiple crimes in theme episode. In such a situation it is not without hardship to all concerned and consequent legal complications arising from practicable potentialities of conflicting or inter- affecting findings. This could work to the serious disadvantage of the Parties, and would certainly be a source of delay, and all attendant unnecessary effects. Witnesses suffer equally on account of multiple litigation.
' Furthermore, it requires consideration of the possibly attending ineffectuality to prosecute and punish under parallel laws in separate jurisdictions or under parallel systems.
' All this may not be judicially desirable, in such specific situations of avoidable costs and cumbersomeness, within established legal frame, in the larger interest of justice.
' In fact, principles of 'offshoots' and 'arising from the same transaction' are recognized by the Superior Judiciary of this Country, in order to maintain uniformity in the harmonious manner dispensation of justice. Consider the following:-- ' S. 497--- West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Accused was granted bail in main case registered against him under S.392/34, P.P.C. And present case against him under S.13(d) of West Pakistan Arms Ordinance, 1965 was the offshoot of the said main case, which otherwise was not punishable for more than three years---When the bail was granted in the main case, as a rule, bail could not be withheld in the cases arising out of the same transaction of crime---State Counsel had conceded that withholding of bail in such case was exception and grant of bail was a rule---Accused was admitted to bail, in circumstances, MUHAMMAD DILSHAD v.
State 2009 PCr.LJ 786 SINDH HIGH COURT.
' Jurisdiction is guarded jealously by Courts---Ouster or barring clauses of the legislations are to be strictly construed, CLIFTON AND DEFENCE TRADERS WELFARE ASSOCIATION v. PRESIDENT, CLIFTON CANTONMENT BOARD, KARACHI 2003 PLD 495 SINDH HIGH COURT.
' On the point of 'ouster', following may also provide some useful guileless:-- ' Ouster of jurisdiction is always through express words, and can never be implied. ADDITIONAL COLLECTOR-II SALES TAX, LAHORE v. Messrs ABDULLAH SUGAR MILLS LTD. 2003 SCM R 1026.
' S. 239---Charging accused jointly---Charges against accused were framed under separate three heads; i.e, causing murder; attempting to commit qatl-e-amd and causing injuries (Damiyah and Badiyah)---All accused persons had allegedly committed more than one offences in the same transaction ---Said accused persons could be tried and charged together and case of framing charge against accused would be covered under S.239, Cr.P.C. ABDUL REHMAN v. STATE 2011 PLD 192 PESHAWAR HIGH COURT.
' Section 239, Cr.P.C., may be examined hereunder:-- "239. What persons may be charged jointly. The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the courses of the same transaction;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence.
(c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property, possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence;
(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and
(g) persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; ' and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges."
' Sir Abdul Rahim, BARRISTER-AT-LAW, HIS MAJESTY'S JUDGES OF THE HIGH COURT OF JUDICATURE AT MADRAS (in Chapter on IJTIHAD AND TAQLID, in his Book MUHMMADAN JURISPRUDENCE, p.180), has taken pains to go beyond simple question of jurisdiction, to wider questions of juristic differences, and finds that:-- "When a question depends upon juristic deduction a Qadi belonging to one School....May decide it according to the (other), if he prefers that view, or he may make over the case, to (other) Qadi for decision, if there is one available. In support of this a number of cases are mentioned. ..."
' He has also discussed some other questions of jurisdiction, including those of territorial and of law.
The common thread runs through these cases that a Judge does not shirk, rather does assume jurisdiction, where essentially required of him, in the interest of justice and to lighten the burden of process of law and justice.
' The principles apparent in the above example and in the view are that all lawful effort be made so that interest of justice should not possibly fall short of its full measure, or falter to cause injustice, or cause avoidable or undue hardships to the people, due to legal technicalities, even those involving juristic variance.
' In the context of present case, the honourable High Court of Balochistan has appropriately, after due process of law, in the interest of justice, decided to "make over the case, to (relevant court)
Qadi."
5. Now we take up Criminal Appeal No, 1/Q of 2011 filed by Salam alias Toor Jan, appellant against his conviction and sentence awarded to him by the learned trial Court in Hudood Case No,23 of 2007,
6. Brief facts of the prosecution case are that complainant got registered F.I.R. No,39 of 2007 at Police Station Saddar Chaman, District Kila Abdullah on 20-6-2007, wherein he stated that on 20- 6-2007 at about 11-30 a.m. He was sitting in front of his house. In the meanwhile his brother Hafiz Dost Muhammad was coming from Madrasa towards house on his China-motorcycle (China made), when he reached near Mulla Shah Sawar Masjid, two persons, armed with pistols, present there, forcibly stopped him and made firing, due to which he fell on the ground. The complainant further stated that his neighbours namely Ali Muhammad, Fazal Karam and other people reached at the spot. One dacoit snatched motorcycle from Hafiz Dost Muhammad and succeeded in fleeing away while the other dacoit was overpowered by the above-said witnesses, who disclosed his name as Salam alais Toor Jan and his companion as Abdul Ali alias Kochi. In the meanwhile the police reached at the spot. Hafiz Dost Muhammad succumbed to the injuries at the spot.
7. Investigation ensued as a consequence of the registration of crime report. P.W.6, Muhammad Lateef, S.-1. Had undertaken the investigation. On 20-6-2007 at about 11-30 a.m. He was on patrolling duty and on receiving information through wireless regarding the occurrence, he reached at the spot where dead body of Dost Muhammad was lying and many people were gathered. Accused Salam alias Toor Jan was caught hold by the complainant Haji Bashir Ahmed and other people. The accused along with the pistol .30-bore was handed over to him by the complainant. He unloaded the pistol and recovered two live cartridges. He took into possession the.
Pistol and cartridges through recovery memo Exh.P/1-A, recorded Fard Bayan of the complainant, prepared site plan Exh.P/6-A of the place of occurrence, took into possession blood-stained earth through recovery memo Exh.P/1-B and recorded statements of the witnesses under section 161, Cr.P.C. He inquired from the accused at the spot about permit/license of the pistol but he could not produce the same, therefore, he sent a separate Marasala to the police station for registration of case. He arrested the accused, took the dead body to the hospital and obtained MLC Exh.P13 of the deceased. On the request of the complainant he handed over the dead body to him without conducting the postmortem after obtaining receipt Exh.P/6-C. After completion of investigation, he sent the accused to judicial lock up and submitted incomplete Challan to the Court on 6-7-2007, requiring the accused to face trial.
8. The learned trial Court framed charge against accused Salam alias Toor Jan on 30-8-2007 under section 17(4) of the Offences against Property (Enforcement of Hudood) Ordinance, 1979. The accused did not plead guilty, and claimed trial.
9. The prosecution produced six witnesses to prove its case. The gist of the statements of the prosecution witnesses is as under:--
(i) P.W.1 Munawar Hussain Constable was witness of recovery memos Exh.P/1, Exh.P/1-A and Exh.P/1- B. He also attested his signatures on Articles P/1 to P/1-B, P/2 to P/2-B and P/3 to P/3-A.
(ii) Complainant/Haji Bashir Ahmed appeared as P.W.2 and endorsed the contents of his complaint Exh.P.W/2-A.
(iii) P.W.3 Dr. Ahmed Shah had medically examined Hafiz Dost Muhammad, deceased on 20-6- 2007 and observed the following injuries:--
(1) 1/3 Inch penetrated wound on hypogastric area, exit on back.
(2) Abrasion and contusion on neck, which caused death. The doctor issued death certificate Exh.P/3.
(iv) P.W.4 Ali Muhammad stated that on 20-6-2007 he was present outside of his house, Hafiz Dost Muhammad was coming on motorcycle from Madrassa, when he reached near Masjid Mulla Shah Sawar, two persons armed with pistols were already present there, out of whom one person stopped Hafiz Dost Muhammad, scuffle took place between Hafiz Dost Muhammad and those two persons, in the meanwhile the noise of fire was heard. Out of those two persons, one snatched the motorcycle of Hafiz Dost Muhammad and fled away while making firing. The other person was overpowered by Hafiz Dost Muhammad. He further stated that he reached the spot for help, in the meanwhile Fazal Karam Haji Bashir and other neighbours were also attracted to the spot. In the meanwhile the accused made fire with his pistol, which hit on the abdomen of Hafiz Dost Muhammad. The accused was overpowered and the complainant took the pistol from him. In the meanwhile police arrived at the spot and the pistol was handed over to him. Hafiz Dost Muhammad died at the spot.
(v) P.W.5 Fazal Karam stated that on 20-6-2007 at about 11-30 a.m. He was sitting in Masjid Mulla Shah Sawar. On hearing firing he came out and saw that a person was fleeing away on motorcycle by making firing, whose name was later transpired as Abdul Ali alias Kochi. He further stated during scuffle accused Salam alias Toor Jan made a fire which hit the belly of Dost Muhammad who fell down. Bashir Ahmed complainant, Ali Muhammad and other neighbours reached at the spot. The complainant with the help of the witnesses caught the accused and snatched his pistol. In the meanwhile Muhammad Latif/SHO along with police officials reached at the spot. The complainant handed over the pistol to the SHO. The police took the dead body to the hospital. Thereafter his statement was recorded in the police station.
(vi) P.W.6 Muhammad Lateef SI, had conducted the Investigation, the details of which have already been mentioned in paragraph 7 of this judgment.
10. After closure of the prosecution evidence, the learned trial Court recorded statement of the accused under section 342, Cr.P.C. On 19-3-2008. The accused denied the allegations levelled against him and pleaded innocence. The accused neither opted to record his statement under section 340(2), Cr.P.C. Nor selected to produce defence evidence.
11. The learned trial Court, after completing the legal formalities of the trial, assessing the evidence available on the record and hearing the arguments advanced by the learned Counsel for the contending parties, passed the verdict of guilt and recorded conviction and sentence against the appellant as mentioned in opening paragraph of this judgment.
12. Salam alias Toor Jan/appellant, being dissatisfied with the impugned judgment; has challenged his conviction and sentence through the instant appeal.
13. Barrister Adnan Ahmed Kasi, Advocate/learned Counsel for appellant/Salam alias Toor Jan has raised the following points for consideration of this Court:--
(i) No specific role of firing upon the deceased was attributed to the appellant.
(ii) Medical evidence is not corroborating the ocular account recorded by the prosecution witnesses.
(iii) Cause of death is different with the prosecution version because according to the contents of the F.I.R. The deceased died due to the bullet injury in the belly whereas the MLC of the deceased shows that abrasion and contusion on neck caused the death,
(iv) The eye-witnesses as well as the I.O. Are silent about the injury on the neck of deceased which was the cause of death, according to the MLR.
(v) All the three alleged eye-witnesses are the interested witnesses because P.W.2 complainant is brother of the deceased while P,W.4 and P.W.5 belong to same tribe and the same vicinity.
(vi) No postmortem of the dead body of the deceased was conducted
(vii) The recovered pistol and the empties were not sent for forensic test/matching.
(viii)The statement of the complainant contradicts his version as alleged in Fard Bayan.
(ix) Recovery of pistol from the appellant was doubtful, P.W.4 Ali Muhammad stated that the appellant was overpowered by Bashir complainant, who took the pistol and unloaded the same whereas the 1.0./P.W.6 stated that the complainant (Bashir Ahmed) handed over accused Salam alias Toor Jan along with the pistol to him and he (I.0.) unloaded the pistol
(x) No independent witness was produced by the prosecution during the trial.
14. On the other hand, Mr. Muhammad Kamran Khan Mulakhail, Advocate/learned Counsel for the complainant has made the following submissions, while supporting the impugned judgment:--
(i) F.I.R. Was lodged promptly as the occurrence took place on 20-6-2007 at 11-30 a.m. And F.I.R.
Was lodged on the same day at 12.00 noon.
(ii) The medical evidence corroborates the ocular account.
(iii) Circumstantial evidence supports the direct evidence.
(iv) There was no motive for false implication of the appellant.
(v) Specific role was given to the present appellant.
(vi) The judgment of the learned trial Court is based on well-reasoning.
15. Syed Pervaiz Akhtar, learned Deputy Prosecutor-General appearing for the State has adopted the arguments advanced by the learned Counsel for the complainant and also supported the impugned judgment. However, he raised the following additional points:--
(i) It was a daylight occurrence. The appellant made firing upon the deceased in the presence of P.W.4 and P.W.5. The said P.W.4 and P.W.5 faced the lengthy cross-examination but the veracity of their statements could not be shattered.
(ii) The ocular evidence is available on the record in the shape of statements of P.W.4 and P.W.5, which corroborates the statement of complainant P.W.2, who is brother of the deceased.
(iii) There were consistent and corroborative details regarding time of occurrence, place of occurrence, presence of accused at the spot and recovery of pistol from the accused at the spot.
(iv) There is no enmity between the complainant and the accused persons.
16. We have heard the arguments advanced by the learned Counsel for the appellant, learned Counsel for complainant as well as the learned Deputy Prosecutor General and perused the record with their assistance.
17. The material witnesses in the instant case are Haji Bashir Ahmed/complainant P.W.2, Ali Muhammad P.W.4 and Fazal Karam, P.W.5 who reached at the spot on hearing the firing noise, saw the accused persons scuffling with Hafiz Dost Muhammad/deceased, intervened with the accused persons and overpowered one of the accused namely Salam alias Toor Jan/present appellant while the other accused namely Abdul Ali alias Kochi succeeded in fleeing away. They had seen the occurrence wherein Hafiz Dost Muhammad was murdered. The appellant was overpowered at the spot and pistol along with two live cartridges was recovered from him. Soon after the occurrence, the I.O. Along with police party arrived at the spot, who formally arrested the accused, took into possession pistol along with two live cartridges and blood stained earth from the place of occurrence, took the dead body to the hospital, got conducted medical examination and handed over the dead body to the complainant as the complainant was not agreeable for postmortem of the dead body. The appellant was caught red-handed at the spot. The complainant produced ocular account against him while appearing as P. W.1 and gave all details of the occurrence as mentioned in the crime report. The statement of the complainant gets further strength from the testimony of Ali Muhammad P.W.4 and Fazal Karam P.W.5, who corroborate the version of the complainant on material details. All the three witnesses faced the test of lengthy cross- examination but the veracity of their evidence could not be shattered. The F.I.R. Was lodged at 12.00 noon i.e, only half an hour after the occurrence which shows that the F.I.R. Was lodged promptly and there was no element of afterthought. The complainant and the witnesses of ocular account were present at the spot and soon after the occurrence, they got recorded their statements before the police wherein they gave the facts which actually happened at the time and place of occurrence. The ocular account was further corroborated by Muhammad Lateef SI/10, who appeared before the trial Court as P.W.6 and gave more or less the same details as given by the complainant as well as the eyewitnesses.
18. The main stress of the learned Counsel for the appellant was on medical evidence. He stated that in MLC the cause of death was due to abrasion and contusion on neck whereas according to the F.I.R. The accused died by receiving bullet injury on his abdomen. In this regard, it is pertinent to mention here that in murder cases, the basic procedure for examination of the dead body is post- mortem examination, which is lacking in this particular case. Dr. Ahmed Shah P.W.6 who conducted medical examination of the dead body, based his opinion only on the apparent features of the dead body while in postmortem examination the expert makes the opinion on the basis of examination of whole inner and outer parts of the body and then cause of death is determined.
However postmortem examination was not conducted in this case. But it is admitted that the occurrence took place and the appellant was arrested from the spot with pistol, he neither denied the occurrence nor made any suggestion to the witnesses in this regard.
19. The learned Counsel for the appellant emphasized that the prosecution had not sent the crime empty to the Forensic Science Laboratory for its matching along with the recovered pistol. No doubt it is an irregularity on the part of the prosecution but it is not of such nature which could cause damage to the whole prosecution case. The purpose of matching the empty with the crime weapon is only to ascertain as to from whose pistol the bullet was fired. No direct evidence is available in this case that Hafiz Dost Muhammad/deceased was murdered with the fire of the appellant. However his arrest at the spot, recovery of pistol along with two live cartridges from him and scuffling with the deceased has fully proved that the occurrence took place as alleged by the prosecution. The appellant could not succeed to bring on record any favourable material or evidence to delink himself from the crime, however from the above-mentioned contentions raised by the learned Counsel for the appellant, some mitigating circumstances accrue in favour of the appellant. P.W.4 Ali Muhammad stated that he heard the fire shot, while both the accused were still grappled with the deceased. Then P.W.4 Ali Muhammad and P.W.5 Fazal Karam stated that the deceased received bullet shot in the belly and fell down. Whereas, P.W.5 Fazal Karam stated that the fleeing accused namely Abdul Ali alias Kochi. Who took away the Motor Cycle, also was firing while fleeing. This makes at least three pistol shots, fired by both the accused, whereas only two empties were recovered. Further recovery memo of crime empties Exh.P/1-A shows that the empties were recovered from a distance of 6/7 feet from the dead body. Furthermore, the Inquest report does not mention neck injuries. This has obscured chances of linking of the killer bullet, the killer weapon, and the killer offender with the killing injury.
20. But the prosecution has fully proved its case against the appellant beyond any shadow of doubt on the basis of ocular account, recoveries and the medical evidence and the learned trial Court has rightly convicted the appellant under sections 302(b) and 392, P.P.C. However in view of the above-mentioned mitigating circumstances, the death sentence awarded to the appellant is seemingly harsh.
21. In view of what has been stated above, Criminal Appeal No:1/Q of 2012 filed by Salam alias Toor Jan/appellant against the judgment dated 10-4-2008 passed by the learned Additional Sessions Judge, Pishin in Hadood Case No,23 of 2007, whereby he was convicted under section 302(b), P.P.C.
And sentenced to death and ordered to pay, compensation of 1,00,000 to the legal heirs of deceased/Hafiz Dost Muhammad or in default thereof to further undergo six months S.I., and was further convicted under section 392, P.P.C. And sentenced to eight years' R.I. With fine of Rs,10,000 or in default thereof, to further suffer three months' S.I., is dismissed. However the sentence awarded to him under section 302(b), P.P.C. Is converted from death to the sentence of life imprisonment.
22. Consequently, Criminal Murder Reference No,1/Q of 2012 for confirmation of death sentence is not confirmed and is answered in negative.
' The order of payment of compensation under section 544-A, Cr.P.C. Is maintained.
23. Criminal Appeal No,2/Q of 2012 filed by appellant/Salam alias Toor Jan against the judgment dated 10-4-2008 passed by the learned Additional Sessions Judge, Pishin in Arms Case No,25 of 2007, whereby he was convicted under section 13-E of the Arms Ordinance, 1965 and sentenced to three years' R.I. With fine of Rs,3,000 or in default thereof to further undergo three months' S.I., is dismissed.
' The sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Is extended to the appellant.
24. The above are the reasons of our short order dated 23-5-2012.
Sentence reduced.