Raja Saeed Akram Khan, J.-- This appeal, has been addressed against the judgment of the Shariat Court dated 23.05.2014, whereby the appeals filed by both; the complainant and the convicts have been dismissed.
2. Precise summary of facts necessary for disposal of this appeal is that on 18.11.2002, at 4:00pm, the complainant Ishtiaq Asghar, lodged a report at police station Kotli to the effect that he is resident of village Ishqiali. Today at 2:45pm, he along with Mahmood and Ghalib Shah was present in the shop of Sajid Hussain son of Walidad. Meanwhile, Zia Akber, Imtiaz Akber, Saeed Akber, Sarfraz Akbar, Nadeem, Waseem, Irfan alias Billa, Shahzad alias Shada, Asif alias Pola, Farukh alias Farhi, Javaid, Abood and Nayab, the accused, while armed with firearms, sticks, daggers and batons having common criminal intention arrived at the shop. The accused, Saeed Akbar and Sarfraz, suddenly created panic by making aerial firing, whereas, all other accused launched the attack. Imtiaz Akbar inflicted a straight blow of stick upon the head of Mahmood who fell down on the ground, thereafter; he gave stick blows at the other parts of his body. The accused, Zia Akbar, gave a blow of dagger to Mahmood at right side of his abdomen due to which he got seriously injured and fell down. The accused, Javid caused injury with stick on the head of Sajid Hussain and also inflicted injuries on the others parts of his body, who also fell down. In the meantime he was also sustained injuries by the hands of Waseem, Irfan and Shahzad with daggers. Abood, Nadeem Butt and Asif caused injuries to the complainant with consecutive blows of sticks. Farukh alias Farhi, inflicted a blow of dagger on back of the complainant who severely got injured. The accused, Nayab, while raising a lalkara to do away with life of Mahmood, also inflicted a dagger blow to Mahmood and Sajid Hussain. The accused, Abood, inflicted a stick blow on the head of Ghalib Shah who was trying to rescue them. Besides the complainant, the occurrence was witnessed by Sajid Hussain, Ghalib Shah, Mushtaq Malik, Masood and the other people of the locality. The motive behind the occurrence is stated to be the registration of a case by Muhammad Shahzad (accused) against Gullzaib and others as the accused had the doubt that Mahmood and others are extending favour to Gullzaib. The injured were brought to the District Head Quarter Hospital, Kotli, whereas, Mahmood succumbed to the injuries.
3. On the aforesaid report, a case in the offences under sections 302, 452, 324, 337-A, 147, 148, 149, 337-H(2), APC was registered. During the course of investigation, on recovery of unlicensed weapons, four different cases in the offence under section 13 of the Arms Act, 1965 were also registered against the accused persons. On the completion of the investigation, the challan were presented in the District Court of Criminal Jurisdiction, Kotli.
The cases were later on entrusted to the Additional District Court of Criminal Jurisdiction Sehnsa Camp Kotli.
The trial Court after necessary proceedings convicted the accused, i.e. Zia Akbar, Imtiaz Akbar, Waseem, Javid, Nayab, Irfan and Shahzad and acquitted the accused, Abood, Nadeem, Asif, Farukh, Waqar and Intikhab, of the charge. The trial Court awarded the sentence of 14 years' rigorous imprisonment along with a fine of Rs.2,00,000/- to convict-appellant No.1 and 10 years each rigorous imprisonment to appellants No.2 and 3, under section 302, APC and Rs.10,000/- as fine under section 13 of the Arms Act, 1965 to each of the convict- appellants. Both; the complainant and the convicts filed appeals against the judgment of the trial Court before the Shariat Court. The learned Shariat Court vide impugned judgment dated 23.05.2014, dismissed all the appeals which is the subject matter of this appeal.
3. Raja Inamullah, Advocate, the learned counsel for the convict-appellants at the very outset submitted that convict-appellants No.1 and 3 have already served out the sentences awarded to them by the trial Court and released from the jail, therefore, to their extent the appeal has become abated and now he is only pursuing the case to the extent of convict-appellant No.2, Imtiaz Akbar. He submitted that the case of convict-appellant No.2, falls under section 337-A(i) as allegation levelled against him is that at the time of occurrence he was armed with stick and gave the stick blows at the head and the back of the deceased. He contended that the medical report does not support the allegation levelled in the FIR as no such injury of the stick blow was found at the body of the deceased. In such state of affairs, the sentence of 10 years' rigorous imprisonment awarded by the trial Court under section 302, APC, upheld by the learned Shariat Court, is too harsh. He submitted that on the same set of evidence 6 other accused in the occurrence have already been acquitted of the charge by the trial Court, therefore, convict-appellant No.2, also deserved for the same treatment. He added that the Courts below while passing the impugned judgment failed to appreciate the post-mortem report as well as the statement of doctor in a legal manner. He further added that the doctor categorically stated in his statement that the injuries found at the body of the deceased can be caused by sharp-edge weapon, whereas, according to the prosecution story at the time of occurrence the convict-appellant was armed with a stick. In continuation of the arguments, he submitted that it was not a pre-planned occurrence, therefore, the question of vicarious liability does not arise. In support of this argument, he submitted that the trial Court while awarding the sentence to the convict-appellants has separately taken into consideration the role of each convict-appellant. He submitted that the trial Court awarded the sentence of 10 years' imprisonment to the convict-appellant under section 302, APC, mere on presumption which is not warranted under law rather his case falls under section 337-A(i), APC. He lastly submitted that the learned Shariat Court while upholding the judgment of the trial Court committed a grave illegality.
4. On the other hand, Mr. Mehmood Hussain Chaudhary, the learned Addl. Advocate-General strongly supported the judgment of the Shariat Court. He contended that convict-appellant No.2, is nominated in FIR with a specific role. He caused stick blows at the head and the other parts of the body of the deceased. He added that the participation of convict-appellant No.2, in the occurrence is admitted, therefore, the trial Court has not committed any illegality while awarding sentence of 10 years' imprisonment to him under section 302, APC. The learned Shariat Court after attending all the aspects of the case in a legal manner upheld the sentence awarded by the trial Court, therefore, in such state of affairs, interference by this Court is not warranted under law.
5. We have heard the arguments of the learned counsel for the convict-appellants and the learned Additional Advocate-General and also gone through the record along with the impugned judgment. The learned counsel argued the case only to the extent of convict-appellant No.2 while submitting that the convict-appellants No.1 and 3 have already served out the sentence awarded to them by the trial Court and released from jail. While arguing the case, the learned counsel mainly stressed on the point that the case of the convict-appellant is of lesser punishment as the role attributed to him is not covered under section 302, APC rather the same falls under section 337 A(i), APC. Keeping in view the submissions made by the learned counsel for the convict- appellant, we have to examine the case only to the extent of convict-appellant No.2, Imtiaz Akbar. The role attributed to the convict-appellant, is that at the time of occurrence he was armed with stick and he caused stick blows at the head and the other parts of the body of the deceased. It appears from the post-mortem report that the doctor found two incised wounds at the head of the deceased; the size of the wounds has been mentioned as 5 and 4 cm in length. The doctor while recording his statement has stated that incised wound can only be caused by a sharp edge weapon. It will be useful to reproduce here the relevant portion of the statement of doctor which reads as under:- {{URDU TEXT}} After going through the post-mortem report and the statement of the doctor, it appears that the Courts below overlooked this part of the evidence and the argument of the learned counsel for the convict in this regard, has substance. The doctor categorically stated in his statement that such like injuries can only be caused through sharp edge weapon, whereas, admittedly at the time of occurrence the convict-appellant was not armed with sharp edge weapon rather he was armed with a stick. In such state of affairs, in presence of clear evidence as discussed hereinabove, the presumption cannot be drawn that the injury attributed at the head of the deceased could be caused by a stick blow. The record reveals that the convict has already served out a half of the sentence, i.e., 5 years rigorous imprisonment which in view of the gravity of the offence committed by the convict-appellant, is adequate to serve the purpose. It may be observed here that the convict-appellant is only liable to be punished in the offence which he has been committed as it is settled principle of law that the punishment should be compatible with the allegation. Reference may be made to a case reported as Niaz Ahmed v. The State and 2 others [2008 SCR 326], wherein, this Court held as under: "The Court, therefore, cannot resolve the issue of awarding sentence blindly or without taking note of theories of punishment and background of offenders. This duty falls on the superior Courts to fill in the vacuum and the Courts should do justice keeping in view all the circumstances and background of the offenders. Therefore the punishment awarded should neither exceed a ceiling equal to a level just deserved by the offender for the offence nor far below a floor level necessary to protect public from further serious crimes and to show that the gravity of offence is depreciated."
Resultantly, while accepting this appeal to the extent of convict-appellant No.2, Imtiaz Akbar, the sentence of 10 years' rigorous imprisonment is altered into the sentence already undergone. The sentence to the extent of fine awarded by the trial Court is maintained. The benefit of section 382-B, Cr.P.C. extended to the convict is also upheld.