WAQAR AHMAD SETH,J:- This criminal appeal has been directed against the judgment dated 12/02/2013 passed by the learned Judge, Anti-Terrorism Court/Juvenile Court, Mardan whereby the appellant Hazir Zaman has been convicted under section 302(b) PPC and sentenced to imprisonment for life, also convicted under section 7 ATA and sentenced to imprisonment for life with a fine of Rs.20,000/-. He was further convicted under section 337- A(1) PPC and sentenced to one year = and to pay Daman amounting to Rs.10,000/- to PW Nighat, also convicted under section 13 AO and sentenced to two years with a fine of Rs.2000/- and further convicted under section 353 PPC and sentenced to undergo imprisonment for six months with a fine of Rs.1000/-. All the aforesaid sentences were ordered to be run concurrently with a benefit of section 382-B Cr.P.C.
2- Shortly narrated the facts of the prosecution case are that on 21/06/2012 at 10.35 hours Aqeel Ahmad Typist attached to the Court of Miss Faiza Gul the then Judge Family Court, Mardan reported the matter to the police to the effect that on the same day he alongwith Asif Haroon son of Wajid Ali Reader and Ghani Rehman Naib Qasid were present in the Court while the Presiding Officer also present on her seat; that deceased Mst.Lal Zia wife of Hazir Zaman appellant was also present in connection with her family suit who was produced by Lady Constable Mst.Nighat from Darul Aman. At about 10.15 hours when call was made in the case of the said deceased lady, accused Hazir Zaman also entered into the court room and took out pistol and opened firing at Mst.
Lal Zia as a result of which she got hit and died on the spot. Due to the said firing the Reader and Naib Qasid and Mhammad Yousaf were also hit and sustained injuries. The lady Constable Nighat tried to overpower the accused and caught hold of him but accused pushed her due to which she also got injured. The accused while decamping from the spot was arrested by the police personnel alongwith weapon of offence.
3. After completion of usual investigation, challan was put in the Court of Judge Anti-Terrorism, Mardan where the appellant was formally charged on 04/09/2012 and after conclusion of the trial he was convicted and sentenced as noted above.
4. Feeling aggrieved from the judgment of the trial Court, appellant preferred the instant appeal.
5. During the hearing of the instant appeal, on 03/10/2013 learned counsel for the appellant stated at the bar that the parties have patched up the matter outside the Court and the trial Court be directed to record statement of the parties to the extent of section 302(b) PPC while to the extent of section 7 ATA, he will argue the case on merit being non-compoundable offence. So the appeal alongwith the record was sent to the trial Court for recording statements of the parties and submit its report regarding the genuine of compromise or otherwise.
6. In the light of the above, the learned Judge Anti Terrorism Court, Mardan submitted his report dated 31/10/2013, the relevant portion of which is reproduced as under:- "The parents of the deceased had earlier appeared before this Court and placed on file compromise Ex.PA. Their joint statement supporting the factum of compromise to their extent was recorded. Both of them voluntarily stated that they have forgiven the convict in the name of Almighty Allah and have also waived off their right of Qisas and Diyyat. Statement of elders intervening between the parties was also recorded and the factum of L.R's was ordered to be verified from the local police. Such verification was done today. Deceased of the case namely Mst.Lal Zia was also statedly the wedded wife of the convict. The partial compromise between the L.R's and the convict is verified to be genuine and in the interest of the parties. However, no proof of compromise between the convict and other injured of the occurrence was produced. The compromise papers and statements of L.R's, elders and verifier Bakht Shid Khan SI alongwith judicial record, be thus dispatched to the worthy Additional Registrar (Judicial) Peshawar High Court, Peshawar for further necessary action please."
7. Learned counsel appearing on behalf of the parties stated that as all the legal heirs of the deceased have forgiven the appellant in the name of Almighty Allah and have also waived off their right of Qisas and Diyyat, therefore, the appellant may be acquitted of the charge.
8- In view of the above, we are satisfied with the report of the learned trial Judge. We are also convinced that the legal heirs of the deceased have compounded the offence with the appellant, voluntarily, without duress or coercion and have waived their right of Qisas and Diyyat. So far as the injured persons are concerned, out of whom Asif Haroon appeared as P.W.13 and stated that he do not charged the accused and has pardoned him while the other injured namely Muhammad Yousaf and Ghani Rehm, have not been produced by the prosecution in the trial. So far as injured Lady Constable Mst.Nighat is concerned, she was not injured with the fire shot of the appellant but she sustained injury due to her fall on the ground and as per medicolegal report, bruises on the right forearm near the wrist joint were found. Needless to add that if, an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reasons for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas, as held by the apex Court in (1992 SCMR 2088).
9- Vide sub-section (5) of section 345 Cr.P.C. the legal heirs of the deceased have been allowed to compound the offence with the permission of the Court where appeal is pending whereas vide its subsection (6),such composition of an offence shall have an effect of an acquittal of the accused with whom the offence has been compounded. Therefore,, in view of the report of the learned Judge of the Anti-Terrorism Court, Mardan dated 31/10/2013 and the request so made by the learned counsel for the parties, the legal heirs are allowed to compound the offence with the appellant and permission to compound the offence in view of sub-section (5) of section 345 Cr.P.C. is accorded to the parties to the extent of section 302(b) PPC in order to maintain relations and bury their hatches forever.
10- In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of the alleged offence have any nexus with the object of the case as contemplated under sections 6,7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of dissolution suit between the appellant and the deceased lady. The motive for the occurrence is also the same family suit between the appellant and his deceased wife. In this view of the matter, we are of the opinion that since motive was dissolution of marriage between the husband and wife, the application of section 7 of Anti-Terrorism Act, 1997 which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. From the facts of the case, the definition of terrorism is not attracted in the present case.
11- Since the main case of murder of the deceased Mst.Lal Zia under section 302(d) PPC has been patched up by her legal heirs with the appellant and they have pardoned the appellant in the name of Almighty Allah and also waived off their right of Qisas and Diyyat and they including the injured witnesses are not charging the appellant, therefore, further proceedings in the case would be futile exercise and sheer wastage of time of the Court and the parties concerned.
12. In view of what has been discussed above, this appeal is allowed, the conviction and sentence imposed upon the appellant Hazir Zaman by the learned Judge, Anti-Terrorism Court, Mardan by his judgment dated 12/02/2013 is set aside and he is acquitted of the charges levelled against him.
He be set at liberty forthwith if not required in any other case.
8- In writ petition No.2114-P/2013 respondent husband has challenged the judgment and order of both the courts below in respect of dower of half share of the house mentioned in the heading of the plaint. While in writ petition No.2266 filed by petitioner-wife, she has challenged the judgment of the appellate court whereby the decree passed by trial court in respect of house No.121 Street No.12 Sector F-8 Phase-VI, Hayatabad Peshawar was modified to the extent that instead of half share in the house as dower, the market price thereof is decreed in her favour. While in writ petition No.2265 she seeks the constitutional jurisdiction of this court and questioned the judgment of both the courts below with regard to non-payment of ten tolas golden ornaments as dower.
9- It is contended by the plaintiff-wife that her nikah was performed with defendant-husband in consideration of tolas gold ornaments, half share of her house and Rs.2000/- as maintenance allowance. In support of her claim she produced three witnesses. She appear as P.W.1 and given the detail of execution of nikahnama Ex.PW-1/1 and affidavit Ex.PW-1/2. Rehmatullah and Wazirzada were examined as PW-2 and PW-3 respectively. Both the witnesses have supported the contents of nikahnama and categorically stated that it was executed in her favour. Defendant-husband was examined as DW-1. He stated that nikah between the spouses was performed orally and an affidavit was executed before nikah between the parties. He stated that half share of the house was given to the plaintiff in lieu of dower which is situated in his village District Karak. He further stated that ten tolas of gold ornaments were fixed as dower out of which five tolas was prompt and remaining five tolas as deferred. He admitted his signature on the affidavit Ex.PW-1/2. In cross examination he showed his ignorance about the fact that whether the nikan was oral or in writing.
He also could not disclose the name of the witnesses in whose presence nikah was performed.
Though he denied the execution of nikahnama and contended that she annexed bogus and tempered documents with her plaint and made tempering in nikahnama. But from the record, it reveals that the defendant miserably failed to prove that she had made any tempering in the nikahnama or prepared bogus documents. Though, in his statement he admitted the dower and share in the house which was given to her in lieu of her dower which is situated in his native village but such stance is not mentioned in the written statement. It is settled law that parties can not go beyond the pleadings. Thus, his evidence is not admissible. The defendant-husband himself admitted his signature on affidavit Ex.PW-1/2. He has not been able to prove any tempering in the nikahnama. While plaintiff-wife has proved the nikahnama through oral and documentary evidence. In the nikahnama Ex.PW-1/1 the name of Rehmat Ullah and Amir Daraz Khan are mentioned in its column No.8. Plaintiff produced both these witnesses as PW-2 and PW-3.
Defendant also admitted the presence of these PWs at the time of nikah.
In column No.13 to 17 of nikahnama the detail of dower is mentioned which included half share in the house situated in Hayatabad, ten tolas gold ornaments and Rs.2000/- per month as maintenance allowance.
10- In writ petition No.2114-P of 2013 respondent/defendant contended that it is clear from the pleading of the parties and supporting documents annexed thereto that dower claimed by plaintiff-wife is of deferred category and could be claimed only in case of dissolution of marriage by death or divorce, but this material fact has been overlooked by both the courts below, which amounts to departure from evidence and not permissible under the law and rules governing the subject. These arguments were rebutted by learned counsel for the plaintiff-wife and contended that the dower has great significance in the contract of marriage in the Islamic society. It was obligatory upon the husband to pay dower to the wife happily. According to learned counsel, the question of paying of dower happily in the eventuality of dissolution of marriage by divorce did not arise, in as much as the parties were afflicted with bad feelings against each other, therefore, no husband would pay it happily at the time of divorce.
Hence according to the learned counsel, the whole dower has to be paid on demand. He also contended that dower is a gift given by the bride grown to the bride. That Holy Quran is silent on two type of dower i.e. prompt and deferred dower. He relied on sura Al-Nisa V 4.4 of Holy Quran and sated that according to the command of Allah "SWT given in the Holy Quran (Sura Al-Nisa, V.R.4) read as under:- "At the time of marriage, give the women their dowers willingly as an obligation; but if they, by their own free will, give up to you a portion of it then you may enjoy it with pleasure ". Record shows that during the course of trial respondent-defendant submitted an application for deletion of part B from the suit pertaining to deferred dower being pre-mature in view of section 290 of Muhammadan Law. This application was contended by plaintiff and the learned trial court vide order dated 12.7.2010 while relying in 2006 YLR-33 dismissed the application by holding that dower whether prompt or deferred was inalienable right of wife and after consummation same would become vested right for a wife at that time. This order has not been challenged by the respondent- husband. At appellate stage he had challenged the order/judgment dated 15.3.2012 on the sole score that the same is liable to be set aside, as the right of further cross examination and production of additional evidence was illegally struck off by the trial court. In appeal, he has not challenged the order dated 12.7.2010. Now, through this constitutional petition, he challenged it. First, we want to see whether the dower fixed in favour of wife was prompt or deferred. As discussed above, the plaintiff-wife has been able to prove the contents of nikahnama Ex.PW-1/1 which has got much authenticity then any other documents. The detail of dower is given in para No.13 and 17 of the Nikah Nama. Here we deem it proper to reproduce the relevant para of the Nikahnama (Para No.13, 14, 15, 16 and 17) as under:-- With regard to the dowered house, it is not mentioned that it is deferred. In para No.16 it is clearly mentioned that share of 7 marlas house situated at phase No.VI F8, Hayatabad, Peshawar has been given. Only in respect of ten tolas gold ornaments, five tolas has been declared as prompt and five tolas as deferred and it is cleared from record that no decree in respect of golden ornaments has been given. The respondent-husband has not been able to prove his contention. So far the contention of plaintiff-wife in Writ Petition No.2266 of 2013 with regard to the decree of market value (price) of the half share in house no.121 Street No.12 Sector F-8, Phase-VI, Hayatabad, Peshawar is concerned, learned counsel for the petitioner at the very outset stated at the bar that he does not want to press the writ petition because plaintiff is ready to receive the market price of the house noted above instead of its half share.
11- Petitioner-wife filed writ petitionNo.2265 to the effect that both the courts below have erred in not passing the decree of gold ornaments weighing 10 tolas claimed by her in the suit. From the perusal of plaint, it reveals that no such relief of ten tolas gold has been claimed by the plaintiff in the heading of the plaint and in the last para the plaintiff seeks only the grant of relief which has been claimed in the heading of the plaint. Both the courts below have rightly confined themselves to the decree/relief as claimed for and refused to grant decree for gold ornaments which has not been alleged by the petitioner/plaintiff.
12- In view of the above discussion, we hold that the petitioners have not been able to substantiate their claim in their respective writ petitions. The findings of both the courts below on the basis of evidence are not amenable in the writ jurisdiction. The High Court in exercise of its extra ordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can neither substitute findings of facts recorded by courts below nor give its opinion regarding adequate evidence. Such matter should be decided by courts below vested with jurisdiction to decide them.
Assessm ent of evidence is the function of Family Court which is vested with exclusive jurisdiction to decide matter. No misreading or non-reading of evidence by courts below was pointed out by the counsel for the petitioners. The concurrent findings of courts below cannot be successfully assailed in writ petition. Thus, all the three writ petitions being without force are hereby dismissed.