Ch. Muhammad Ibrahim Zia, J.--This appeal has arisen out of the consolidated judgment of the Shariat Court dated 6.4.2012, whereby the sentence of death as "Qisas" awarded to the convict- appellant by the trial Court has been commuted and he has been awarded the life imprisonment for commission of the offence under Section 302(b), A.P.C., and the murder reference has been answered accordingly. Whereas the appeal filed by the complainant has been dismissed.
2. The relevant facts necessary for disposal of this appeal are that the complainant, Mushtaq Ali lodged a report at Police Station Chaksawri on 19.12.2001, at 12:50, p.m. Stating therein that the complainant and brother, Imran s/o Barkat Ali, Jabir s/o Inayat Ali, Majid S/o Muhammad Khan, castes Rajput, Ashiq Hussain (sic) caste Jattr/o Ladar, came to Bazar from their homes. Whereas Ibrar, Asif, sons of Muhammad Azam, caste Jat, r/o Domal, Anwar s/o Asghar Ali caste Jat, r/o Ladar, also had been there in Chaksawri. The brother, Imran had a quarrel and fight with Ibrar, Asif and Ansar, due to visiting Adh Ply Hotel that is why all the three accused were animus towards brother Imran who kept in wait for the opportunity to kill him. It is alleged that: today the 19th December, 2001, Abrar, Asif and Anwar, armed with lethal weapons were ambushing themselves in the shop of Shabbir Bhatti s/o Fazal Illahi, in the Bazar. At about 12:30, p.m, he along with brother Imran and Ashiq Hussain, when reached at some distance from the shop of Shabbir Bhatti, the accused along-with Shabbir Bhatti raised "lalkara" that they will not let us go alive today. On this, Ibrar, who had a five shotter gun, with the intention to kill, fired straight shot at brother, Imran. The fire hit him at his face, head and neck. On receiving gun fire injury, he fell down on foot path. Asif was holding a 30-bore pistol whereas, Ansar had a .12-bore gun. All the accused recklessly fired in the result of which Ashiq Hussain also received fire-arm injuries on his shoulder and back. The occurrence is stated to be witnessed by the complainant, Ashiq Hussain, Majid s/o Muhammad Khan, Jangwaiz s/o Inayat Ali, Farooq s/o Abdul Rehman, Asif s/o Asghar Ali and the people present in the Bazar. The accused-persons have committed the offence with pre-planning due to which Imran and Ashiq were injured who were taken to District Headquarter Hospital, Mirpur.
3. On this report, a lase for commission of the offences under Sections 341, 34, 3.24, 337-A and F, A.P.C., was registered against the accused-persons. The injured Imran, succumbed to the injuries on the same day. The police added Section 302, A.P.C. In the F.I.R. After completion of investigation, challan was submitted before the Court of competent jurisdiction through Public Prosecutor on 28.2.2002.
4. The statements of witnesses recorded under Section 161, Cr.P.C, along with the copy of challan consisting of 18 pages, were offered to the accused. On 9.3.2002, the statements of accused, under section 242, Cr.P.C., were recorded. They pleaded not guilty. Upon this, the prosecution was directed to lead evidence. The prosecution produced 12 witnesses in support of its case.
5. After recording the statements of prosecution witnesses, the statements of accused under Section 342, Cr.P.C. Were recorded on 18.10.2006 who again denied the guilt while falsifying the prosecution evidence. They also rejected the recoveries etc. And offered to adduce evidence in defence. They were allowed accordingly. The defence produced two witnesses. The statements of accused were also recorded in defence. After recoding the evidence, on 7.12.2006, the arguments were concluded. The trial Court after necessary proceedings found the accused, Ibrar Ahmed s/o Muhammad Azam, guilty for the commission of offence under Section 302, A.P.C. And sentenced him to suffer sentence of death as "Qisa's"; the commission of offence under Section 324, A.P.C, he was sentenced to suffer three years rigorous imprisonment; for commission of the offence under Section 337-F(3), he was sentenced to pay Rs, 10,000/- each as compensation/Daman, for both the injuries caused to Ashiq Hussain; whereas for the injury caused to Zahir Shah the accused was sentenced to pay Rs, 10,000/- as "Daman". He was also sentenced to suffer one year's rigorous imprisonment as "Ta'zir". Asif Mehmood and Muhammad Shabbir, Bhatti were acquitted of the charge.
6. Feeling dissatisfied from the judgment of the trial Court, both the parties approached the Shariat Court by filing separate appeals. Abrar Ahmed, convict, challenged the order of sentence awarded to him by the trial Court whereas, the complainant (legal heirs of the deceased) challenged the acquittal order of Asif Mehmood and Muhammad Shabbir Bhatti. A Reference No, 16/2007 was also filed by the trial Court for confirmation of the sentence of death awarded to the convict. The learned Shariat Court, after necessary proceedings, vide impugned judgment converted the sentence of death as "Qisas" awarded to Abrar, accused into life imprisonment, whereas, the other sentences awarded to him for causing injuries to other persons have been vacated. The reference filed by the trial Court was answered accordingly. The convict-appellant has also been extended the benefit of Section 382-B, Cr.P.C, whereas the appeal filed by the complainant party has been dismissed. The convict-appellant has now challenged the judgment of the Shariat Court through the instant appeal.
7. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the convict-appellant argued the case at some length. After narration of necessary facts of the case, he seriously objected to the observation and conclusion drawn at pages 15 to 16 of the impugned judgment. He submitted that the convict-appellant has been implicated in the case along with 3 other co-accused but on the basis of same evidence, the other accused have been acquitted. The prosecution has changed the story before the Court which was introduced during the course of investigation. The Court has wrongly attributed the injuries received by Ashiq Hussain to the convict-appellant. According to the prosecution story as narrated in the F.I.R, this is a case of single fire but in the impugned judgment, two fires have been attributed to the convict. It also transpires from appreciation of the whole material that the prosecution has not brought the whole truth on record. While making deep appreciation of the piece of evidence i,e, the medico legal report, he submitted that the same is not corroborative to the prosecution story. According to the prosecution story as narrated, at the relevant time of occurrence, keeping in view the place and the distance between the victim and the accused, the causing of the alleged injuries is not possible. He also forcefully argued that the conclusion drawn by the learned Shariat Court regarding sudden flare-up, is also without any supportive reasons and no such inference can be drawn from the material of this case. He further submitted that on the basis of same evidence and the story, the other accused have been acquitted. These findings have not been challenged which stood admitted on the part of the prosecution which makes the whole story as doubtful. It is also contended that the prosecution story also does not find corroboration from the fire-arm expert's report. There is also contradiction in the kind of crime weapons. Same like, no number mention of the number of the crime weapons is mentioned in the Arms Expert's report. It is also very amazing that according to the prosecution story, keeping in view the position and the place occupied by the complaint at the time of occurrence, how he escaped and not received any injury. There is also material contradiction in the statements recorded during the investigation and in the Court. It is also submitted that according to the Jail Manual Rules, the convict-appellant has undergone more than 17 years imprisonment including the remittances given at different times by the State. He submitted that if at all the Court reaches the conclusion that this is not a case of acquittal, then as an alternate, the undergone conviction be computed. He placed reliance upon the cases reported as Niaz Ahmed vs. The State & others [2008 SCR 326] in support of his contentions.
8. Conversely, Mr. Muzaffar Ali Zaffar, Additional Advocate-General, while refuting the arguments of the counsel for the convict-appellant forcefully defended the impugned judgment and submitted that the prosecution has established and proved its case beyond shadow of any doubt by production of the confidence inspiring evidence. The learned Shariat Court has already converted the death sentence into life imprisonment. According to the conduct and the role attributed to the convict-appellant, he does not deserve for further concession. The discrepancies pointed out by the learned counsel for the convict-appellant are o minor in nature which do not create a main dent in the prosecution story. Such like minor discrepancies are always ignored by the Supreme Courts especially this Court and these do not adversely affect the principles of administration of justice or cause any prejudice to the co vict. Therefore, this appeal has no merits and the same is liable to be 'dismissed.
9. In the light of the arguments of the learned counsel for the parties, we have gone through the record of the case. In this case, the trial Court has recorded d tailed judgment consisting of 65 pages wherein the deep appreciation of every piece of evidence including the statements of defence witnesses has been made. Every aspect of the prosecution story has not only been considered but has also been properly attended in the judgment. According to the peculiar facts of this case, it is a broad daylight occurrence, took place in presence of eye-witnesses. The investigating agency collected the relevant evidence during investigation as for as possible. The perusal of the judgment of trial Court clearly reveals that neither any piece of evidence has been ignored nor any aspect of the case has escaped the sight of the trial Court. The impugned judgment of the Shariat Court is also based upon proper appreciation of the material especially in the light of the points agitated in the arguments by the parties. Resultantly, while extending the legal concession available to the convict, refused to confirm the death sentence rather converted the same into life imprisonment.
10. In our considered view, the points agitated in the arguments on behalf of the convict-appellant are not of such a nature which may justify the reappraisal of evidence by this Court as according to the consistent practice of this Court, unless any departure from statutory provisions or the principles of the administration of criminal justice is pointed out or any other strong ground of misreading or non-reading of evidence is made out, ordinarily, it is not job of this Court to re- appraise the whole evidence in case of concurrent findings recorded by the Courts below.
Therefore, in view of the peculiar facts of this case, we do not feel any necessity of reappraisal of the evidence. This Court has already in a recent judgment in the case titled Muhammad Bashir & another vs. Sain Khan & others, (Criminal Appeal No, 1/2010, decided on 18.4.2014), on the identical proposition has held as under:-- "Thus, keeping in view the nature of objections, we are not convinced to make reappraisal of the whole prosecution evidence especially, when the impugned judgments are well reasoned and based upon appreciation of evidence. Our this view finds support from the case reported as Shabbir Ahmed vs. The State and another [1997 SCR 206], wherein it is observed as follows:-- '
7. Re-appraisal of evidence is not a function of this Court. Once it is settled that there has been proper appraisal of the evidence this Court does not even draw conclusion different from those drawn by the first appellate Court and the trial Court. However, this Court does examine evidence to see whether there has been any gross misreading or non-reading which may have resulted in miscarriage of justice."
' Thus, we cannot agree with the argument of learned counsel for the convict-appellant regarding appreciation of evidence in the light of peculiar facts and the material of this case.
11. So far as the question of acquittal of other accused on the basis of same evidence is concerned, in the light of the century's old settled principles of law, the Courts, while administering criminal justice have to sift the grains from chaff. Neither any innocent should be convicted while ignoring the settled principles of administration of justice nor any real culprit against whom the commission of offence has been fully established, should be exonerated. Keeping in view the peculiar facts of the prosecution story and other details, the specific role of firing and causing injuries by the convict-appellant which resulted into death of victim, have been proved from the cogent evidence.
Whereas there is no allegation of causing any injury to the deceased against the other accused.
Thus, the argument is not available to defence that in the peculiar facts of the case, the prosecution evidence has been wrongly believed or disbelieved. The principle of administration of criminal justice requires that while c appreciating evidence the emphasize should be upon the depositions, gist and spirit of the evidence. Once the Court is satisfied with the legal evidence that it satisfactorily brings home the guilt of the accused, there should be no hesitation in awarding the punishment.
12. So for as the other main argument regarding the variation among the statements of the eye- witnesses and the medico-legal report, is concerned, according to the settled principle of law in presence of direct ocular -evidence, the circumstantial corroboratory evidence looses its importance. The variation pointed out by the learned counsel for the convict-appellant in our considered view are not of such a nature which can create any serious doubt in the prosecution story or prejudice the convict-appellant. Same is the case of fire-arms expert's report. Mere non- mentioning of number of the crime weapon does not make the whole report as doubtful.
13.We are also not convinced with the argument that according to the on ground position assigned to the convict and the deceased in the prosecution story, the alleged injuries cannot be caused.
The deceased and the accused were not dummies, they were live persons and during such incident any movement of the bodies of both may change the angle of fire. Therefore, neither it is possible in the circumstances of this case to determine the exact angle of fire nor mere such like ground makes the prosecution story doubtful. Even otherwise, the ocular evidence is available hence, this points is not of worth consideration.
14.So for as the argument of the learned counsel for the appellant regarding improvements and contradictions in the statements of prosecution witnesses during investigation is concerned, it may be stated that this aspect has already been attended by the Shariat Court and proper finding has been recorded, therefore, no further findings are required. No material has been brought on record to negate the prosecution story or deem the conclusion drawn by the learned Shariat Court as improper.
15. The learned counsel for the convict-appellant advanced his arguments on the basis of the opinion formed by the Shariat Court in the impugned judgment for converting the sentence of "Qisas" into life imprisonment. He submitted that as the Shariat Court has drawn the conclusion that sudden flare-up was the cause of incident, therefore, it was enjoined upon the Court to acquit the accused, because the prosecution has not brought on record the whole truth, hence, if any part of the story is concealed, it will create doubts. Normally, benefit of doubt goes to the accused.
' The referred conclusion of the Shariat Court when judged in the light of the prosecution story and the depositions made by the accused in their statements recorded under Section 340, Cr.P.C, it appears that the accused party has admitted the time and place of occurrence. However, the only plea taken by them is that the deceased murdered Pervaiz Gujjar and the accused were asked to appear .As witness but they refused, therefore, due to that grudge, the accused have been involved in a false case which is not plausible. Same like, the Shariat Court as well as the trial Court drawn the conclusion that the prosecution could not succeed to bring home the guilt of other co- accused. The Shariat Court has also acquitted the convict while vacating the judgment of the trial Court to the extent of causing injury to Ashiq Hussain. In our opinion merely an observation of the Shariat Court which is not befitting to the convict-appellant cannot be made a ground for acquittal of the accused, when, otherwise, satisfactorily through legal evidence, the commission of offence has been established.
16. The discrepancies and flaws pointed out by the learned counsel for the convict-appellant are of such a nature which do not amount to disprove the commission of offence. The minor variations pointed out in the statements of some of the prosecution Witnesses are possible according to humane behaviour. The variations are not of such a vital importance to create any major dent in the prosecution story or create serious doubt. Such like objections are always not considered as fatal for the prosecution case. The identical flaws and discrepancies have been considered by this Court in a recent judgment in the case titled Muhammad Bashir & another vs. Sain Khan & others, (Criminal Appeal No, 1/2012, decided on 18.4.2014); wherein it was observed that:-- "12...When these points judged upon the touch stone of the principle of administration of criminal justice, we found that none of these is of such importance which has legally prejudiced the legal rights of the convict-appellant. In the light of the peculiar facts and circumstances of this case, none of these discrepancies is fatal for the prosecution and we do not need to record separate findings on each as in this regard this Court has already enunciated the principle of law in relation to such like points in an authoritative judgment in the case reported as Abdul Rashid & 3 others us.
Abdul Ghaffar and 5 others, [2001 SCR 240], while considering such like objections, as not of worth consideration..."
' Thus, we cannot agree with the learned counsel for the convict-appellant that the accused deserves for acquittal.
17. So for as the alternate argument of the learned counsel for the convict-appellant that the appellant has already undergone more than 17 year's imprisonment, including the remittances given to him from time to time, is concerned, it may be observed that in the instant case on the basis of available evidence, the trial Court awarded the death sentence as "Qisas", however, through the impugned judgment, " the learned Shariat Court has already converted the same into life imprisonment while extending the benefit of Section 382-B, Cr.P.C., therefore, the convict- appellant in the light of peculiar facts and the evidence on record is not entitled to further concession.
18. So far as the case law referred to by learned counsel for the appellant, reported as Niaz Ahmed vs. The State & others [2008 SCR 326] is concerned, keeping in view the distinguishable facts of the case is not fully applicable to the case in hand. In the referred judgment there was only one eye- witness of the occurrence and enmity among the parties was admitted factor whereas both these elements are not involved in this case.
19. As it has already been observed that the prosecution has succeeded in establishing the case of murder against the convict-appellant, in view of the peculiar facts of this case. The learned Shariat Court has already converted the death sentence into life imprisonment which in our considered opinion fulfills the standard of justice, thus, we do not find any illegality in the impugned judgment, therefore, finding no force, this appeal stands dismissed.