AHMAD RAZA GILANI, J.---Waqar Ali son of Mumtaz Ali, Umar Farooq alias Muhammad Farooq son of Muhammad Hussain and Mst. Samina Kausar wife of Mumtaz Ali faced trial in case FIR No,271 dated 27.08.2013 registered under sections 302/324/34, P.P.C. at Police Station City Burewala to dislodge the following charges;-- "Firstly; That on 27.08.2013, at about evening time, you accused Umar Farooq along with your co-accused Waqar and Samina in furtherance of common intention on the behest of Mst. Samina Bibi, you accused Muhammad Farooq gave churri (knife) blows on the complainant with intention to commit murder of the complainant Muhammad Javed. Thus you have committed an offence punishable under section 324, P.P.C. which is within the cognizance of this Court. Secondly; On the same date, time and place, you accused Umer Farooq along with your co-accused . made a fire shot with pistol at Nadeem Javed (deceased) which landed on the abdomen under the ribs on left side. You accused Waqar Ali made two fire shots at Nadeem Javed deceased, which landed on the left forearm and left biceps and who succumbed to the injuries. Thus you have committed offence of Qalt-e-Amd punishable under section 302, P.P.C. read with 34, P.P.C. which is within the cognizance of this Court."
Learned Trial Court vide its judgment dated 25.08.2015 found Waqar Ali and Muhammad Farooq alias Umar Farooq guilty of intentional murder of Nadeem Javed and accordingly convicted them under section 302 read with section 34, P.P.C., however, keeping in view the facts and circumstances of the case, convicts Waqar Ali and Muhammad Farooq alias Umar Farooq were sentenced to rigorous imprisonment of fourteen years each under section 302(c) read with section 34, P.P.C., they were also held liable to pay compensation of Rs,1,00,000/- each in terms of section 544-A, Cr.P.C. which shall be payable to the legal heirs of deceased Nadeem Javed and shall be recovered as arrears of Land Revenue. In default of payment or recovery they will further undergo simple imprisonment for a period of six months. Vide the same judgment trial Court acquitted Mst.
Samina Kausar by extending her benefit of doubt.
Convicts Waqar Ali and Muhammad Farooq alias Umar Farooq have challenged their convictions and sentences through Criminal Appeal No.454 of 2015. Mst. Talseem Akhtar widow of Nadeem Javed deceased has filed Criminal Revision No, 390 of 2015 for the enhancement of sentences of both the appellants/convicts and prays as under;- "It is, therefore, respectfully prayed that the present Criminal Revision be accepted and modify the impugned judgment dated 25.08.2015 passed by learned trial Court and to enhance the sentence awarded to the Respondents Nos,2 & 3, by awarding capital punishment, as provided under the law. Any other relief, which is just and proper, may also be awarded to the petitioner, in the interest of justice, equity and fair play."
2. Brief facts as narrated in the FIR are as under;-- {{URUD TEXT}}
3. I have heard the learned counsel for the appellants and learned Deputy Prosecutor General representing the State with the assistance of learned counsel for the complainant and have also gone through the record with their assistance.
4. Before taking up the case of appellants/convicts Waqar Ali and Umar Farooq alias Muhammad Farooq against their conviction, I feel it necessary to firstly remove the ambiguity in application of section 302, P.P.C. and clarify true meaning and application of clauses 'a"b' and 'c' of section 302, P.P.C. which I have observed after going through the finding of the trial Court and prayer made in Criminal Revision No,390 of 2015 filed by the petitioner Mst. Tasleem Akhtar for the enhancement of sentence awarded to the appellants Waqar Ali and Umar Farooq alias Muhammad Farooq. It would be appropriate to reproduce section 302 PPC here to answer the above which is as under;- 302. Punishment of qatl-i-amd. Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be; (a)punished with death as qisas; (b)punished with death for imprisonment-for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or (c)punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable.
In case reported as "ZAHID REHMAN v. The STATE (PLD 2015 Supreme Court 77)" it was held that qisas and ta'zir are two distinct and separate legal regimes which are mutually exclusive and not overlapping and they are to be understood and applied as such. It was observed that;- "The provisions of section 299, P.P.C. clearly show that in the context of a qatl-i-amd (intentional murder) Qisas and Ta'zir are simply two different kinds of punishments for such offence and that they are different from conviction for the said offence. As is evident from the provisions of section 304 P.P.C. a conviction for an intentional murder can entail the punishment of Qisas only if the accused person makes before a court competent to try the offence a voluntary and true confession of commission of the offence or the requisite number of witnesses are produced by the prosecution before the trial court and their competence to testify is established through Tazkiya- tul-shahood (security of the witness before trial of the accused person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984 and this was also so declared by this court in the case of Abdus Salam v. The State (2000 SCMR 338). The cases of intentional murder other than those fulfilling the requirements of section 304, P.P.C. are cases entailing the punishment of Ta'zir, as provided in and declared by section 302(b), P.P.C. and the provisions relating to the punishment of Qisas are to have no application or relevance to the same. The relevant statutory provisions reproduced above make it abundantly clear to me that in all cases of conviction for the offence of intentional murder the question as to whether the convict is to be punished with Qisas or with Ta'zir is dependent upon the fact whether the conviction is brought about on the basis of proof in either of the forms mentioned in section 304, P. P. C. or not. If the conviction is based upon proof as required by section 304, P.P.C. then the sentencing regime applicable to such convict is to be that of Qisas but if the conviction is based upon proof other than that required by section 304, P, P. C. then the sentencing regime relevant to such conviction is to be that of Ta'zir. It is only after determining that the sentencing regime of Qisas is applicable to the case of a convict that a further consideration may become relevant as to whether such convict is to he punished with Qisas under the general provisions of section 302(a)P.P.C. or his case attracts the exceptions of section 302(a) in the shape of section 306 or 307 P.P.C. in which cases punishments different from that under section 302(a), P.P.C. are provided. I have entertained no manner of doubt that the general provision regarding an intentional murder being punishable through Qisas is section 302(a), P.P.C. carrying only the punishment of death but section 302, P.P.C. is subject to the other relevant provisions of Chapter XVI of the Pakistan Penal Code which provide punishments different from that of death for certain special classes of murderers mentioned therein despite their cases otherwise attracting a punishment of Qisas. Sections 306, 307 and 308 P.P.C. belong to such category of cases which cases are exceptions to the general provisions of section 302(a), P. P. C. but nonetheless all such cases are to be initially proved as cases entailing a punishment of Qisas which punishment is then to be withheld because the offender belongs to a special class for which an exception is created in the matter of his punishment. A plain reading of the provisions of section 306 and 307, P.P.C. shows, and shows quite unmistakably, that the cases covered by those provisions are primarily cases of Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable in those cases. It goes without saying that before considering the question of his punishment in such a case a convict must have incurred the liability or enforceability of the punishment of Qisas against him which punishment is to be withheld from him in view of the considerations mentioned in sections 306 and 307, P.P.C. and that is why some alternate punishments for such offenders are provided for in section 308 P.P.C. In other words a conviction for an offence entailing the punishment of Qisas must precede a punishment under section 308, P.P.C. and such conviction can only be recorded if proof in either of the forms mentioned in section 304 P.P.C. is available before the trial court and not otherwise."
As regard clause 'c' of section 302 P.P.C., it was observed by, the Hon'ble Supreme Court in the above said case as under;- "the provisions of section 302(c) P.P.C. are relevant to those acts of murder which are committed in situations and circumstances which do not attract the sentence of Qisas and I further understand that sections 306 and 307, P.P.C. are person specific whereas section 302(c) P. P.C. relates to certain situations and circumstances wherein a murder is committed and according to the Injunctions of Islam the punishment of Qisas is not applicable to such situations and circumstances."
In case reported as "Ali Ahmad v. Ali Muhammad and another (PLD 1996 SC 274)" the Hon'ble Supreme Court had declared that situations and circumstances are the same which were contemplated by the exceptions to the erstwhile section 300 P.P.C. It was also observed by the.
Hon'ble Supreme Court as under;- "28. It seems to me, therefore, that the class of cam to which clause (c) of section 302 applies is different from the cases enumerated in section 306 and punishable under section 308 and that clause (c) of section 302 is not limited to cases enumerated in section 306 and punishable under section 308."
Here it would be advantageous to reproduce exceptions to the erstwhile Section 300 P.P.C. which are as under;- "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly.--If it is done with intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly--lf it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: First.-- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 2.-- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.-- Culpable homicide is not murder if the offender being a public servant or aiding a public servant acting for the d advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without towards the person whose death is caused. Exceptions 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. After study of the above distinction drawn by the Hon'ble Supreme Court in clauses 'a' 'b' and 'c' of section 302 P.P.C, prayer of the petitioner Mst. Tasleem Akhtar in her Criminal Revision No,390 of 2015 that sentence of the appellants be enhanced to capital punishment does not appear to be tenable. In fact, through present Criminal Revision reversal of finding of conviction under section 302(c) P.P.C. by the trial Court is being sought which to me is not entertainable. After close examination of the law laid down by the Hon'ble Supreme Court in Zahid Reman's case referred above, I have no doubt to hold that conviction of the appellants under section 302(c) P.P.C. by the trial Court amounts to acquittal of the appellants of the charges under sections 302(a) and 302(b)
P.P.C. Provisions of section 439(4)(a) Cr.P.C. bars the High Court to convert finding of acquittal into one of conviction while exercising its revisional powers. Mst. Tasleem Akhtar petitioner in Criminal Revision No,390 of 2015 can only seek enhancement of sentence under section 302(c) P.P.C. to the extent which the said provision permits. Asking the Court to convert the sentence of the appellants awarded under section 302(c) to section 302(a) or section 302(h) P.P.C. is reversal of the finding and not the enhancement. It has been argued that section 302, P.P.C. which provides punishment of qatl-i-amd, provisions of clauses `a"b' and clause 'c' are interchangeable. Chapters XXXI and XXXII of Cr.P.C. relate to Appeal, Reference and Revision in which these expressions, "enhancement of sentence" "reverse the finding" and "alter the finding" have been used.
5. To know the application and scope of the said three expressions, it would be appropriate to have brief review of powers of Court of appeal and revision. The Code of Criminal Procedure word 'reverse' or 'alter' has not been defined, however, in case reported as "SHERA and 6 others v. The CROWN (PLD 1954 Federal Court 141)" a distinction was drawn between word 'reverse' and 'alter' in these words;- "The ordinary meaning of the word "reverse" is to "annul" or turn into something completely opposite in character whereas "alter" is a less radical expression and means "change in form", .without changing the underlying character of the thing to be changed. "Applying the ordinary meaning of these words, I would say that "reversal" connotes the complete annulment of a finding of guilt or innocence (as the case may be) by the trial Court so as to convert a decision that a man is innocent into a finding of guilty or vice versa: whereas "alteration" while maintaining the essential character of the finding, envisages only a change in form, that is, in the case of a conviction in the degree of guilt."
By virtue of provisions of section 439(1) Cr.P.C. High Court while entertaining Revision petition is conferred same powers exercisable by Court of appeal in terms of sections 423, 426, 427 and 428 Cr.P.C. and may also enhance sentence. However, section 439(5) Cr.P.C. places bar on the High Court to entertain proceedings by way of revision whose appeal lies and no appeal is brought.
Section 423 Cr.P.C. relates to the powers of Court of appeal which is being reproduced as follows;- "423. Powers of Appellate Court in disposing of appeal. (1). The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411-A, sub-section (2) or section 417, the accused, if he appears, the Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or [sent for trial to the Court of Sessions or the High Court], as the case may be or find him guilty and pass sentence on him accordingly to law;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of the section 106, subsection (3) not so as to the enhance the same; (c)in an appeal from any other order, alter or reverse such order; (d)make any amendment or any consequential or incidental, order that may be just or proper,"
After analyzing above provisions, it becomes clear that powers of Court while exercising its revisional jurisdiction, are not unrestricted and Court can take up matter of enhancement of sentence alone when appeal lies. Section 439(4)(a) further bars the Court to convert a finding of acquittal into one of conviction and does not confer it power to impose a sentence for the first time.
6. Result of above discussion is that reversal of finding of acquittal does not fall within domain of powers of Court of revision. However Court is not debarred to remand the case if it finds incorrectness, impropriety or illegality in the orders.
7. In present case appellants were sentenced under section 302(c) P.P.C. to imprisonment of fourteen years rigorous imprisonment, so, this Court is only competent to enhance sentence of the appellant up to 25 years which is authorized under the law and prayer of the complainant that sentence of appellants be enhanced to capital punishment, is in fact prayer of reversal of finding of acquittal under section 302(a) or (b) P.P.C., which is misconceived and not entertainable. In view of section 233 Cr.P.C., for every distinct offence there shall be a separate charge and every separate charge shall be tried separately. Framing charge under section 302 P.P.C. is defective and should be rectified in the light of above discussion.
8. Occurrence in this case took place on 27.08.2013 at "Maghrib Wela" and matter was reported to police on the same day at 8.15 p.m. PW-5 Dr. Muhammad Yaqub Kamal, Medical Officer, THQ Hospital, Burewala, conducted postmortem on the dead body of deceased Nadeem Javed on 27.08.2013 at 11.55 p.m. According to him time between death and postmortem was 3 to 4 hours.
Appellant Umar Farooq is brother of Mehmood Anwar who is husband of Mst. Naila Javed sister of the deceased Nadeem Javed. Appellant Umar Frooq is real Mamon of Waqar Ali co-appellant. Dr. Muhammad Yaqub Kamal also examined Muhammad Javed on whose body three stab wounds were observed which were caused by Umar Farooq appellant. On hue and cry, Nadeem Javed was attracted to site to rescue his father, on which Umar Farooq appellant caused fire shot which hit on the belly of Nadeem Javed deceased. Waqar Ali appellant also caused two fire shots which hit on the left arm of Nadeem Javed deceased. All the above noted facts rule out any kind of fabrication on part of the complainant, implicating the appellants in the murder of his son Nadeem Javed deceased. Both the parties are close relatives and earlier no enmity existed between them. But during the trial Muhammad Javed who is injured as well as father of the deceased Nadeem Javed when appeared as PW-1 stated that it was darkness and he could not see who was armed with pistol and by whose firearm his son Nadeem Javed was injured. Said Muhammad Javed was declared hostile. Other witnesses of the occurrence Waseem Javed PW-2 and Naeem Javed PW-3 both brothers of deceased Nadeem Javed were also declared hostile. Mst. Naila Javed whose presence at the place of occurrence was natural as she was resident of the house where' this occurrence took place. She fully supported the prosecution case and categorically' stated that her statement was recorded by the police after seventeen days of the occurrence on 13.09.2013 but she was not cited as a witness by the police in the calendar of witnesses. She deposed that her husband Anwar Mehmood who is real brother of appellant Umar Farooq had been extending threats to her that if she made statement before the Court against his brother and sister, he would divorce her.
In case reported as "MUHAMMAD BASHARAT v. THE STATE and another (2003 SCM R 554)" it was held by the Hon'ble Supreme Court as under;- "It is noted that this witness is a son of the complainant and uncle of the deceased and was residing in the same house. His presence at the spot was natural. Mere fact that he was not named in F.I.R. was not by itself sufficient to discard his testimony, which otherwise inspires confidence. The testimony of a witness cannot be believed or disbelieved simply for the reason that his name appears or does not appear in F.I.R. Real test is its own intrinsic value."
On review of entire evidence produced by the prosecution, there is no reason to discard the evidence of PW-9 Mst. Naila Javed sister of the deceased Nadeem Javed. Though, complainant Muhammad Javed and witnesses of the occurrence Waseem Javed and Naeem Javed have been declared hostile for the reasons clearly mentioned in their statements that they have forgiven the appellants and have no objection on their acquittal. Here it would be relevant to discuss the evidence adduced by Mst. Tasleem Akhtar widow of deceased Nadeem Javed who was summoned by the Court and was examined as CW-1. She also confirms the fact that her "Dewars"
Naeem Javed, Waseem Javed and her father in law Muhammad Javed complainant of the case have affected compromise with the appellants. However, Mst. Tasleem Akhtar, according to her, is eye witness of the occurrence and she also supported the prosecution case narrated in the FIR lodged on the complaint of Muhammad Javed.
9. For what has been discussed above, it is concluded that PW-9 Mst. Naila Javed real sister of deceased Nadeem Javed is truthful witness and she has sufficiently explained the delay in recording her statement under section 161 Cr.P.C. before the police as she was receiving threats from her husband Anwar Mehmood brother of appellant Umar Farooq who tried to hinder PW-9 Mst. Naial Javed to make statement. Though, complainant of the case Muhammad Javed PW-1, Waseem Javed PW-2 and Naeem Javed PW-3 have been declared hostile but in the facts and circumstances of the case, that is not fatal to the prosecution case and conviction can be passed on the statement of a sole witness, if Court finds it confidence inspiring and truthful witness.
Presence of PW-9 Mst. Naila Javed at the place of occurrence is natural and her version gets support from medical evidence. When the ocular account is strong and trustworthy then rule of seeking independent corroboration does not apply.
10. In view of the above, Criminal Appeal No,454 of 2015 filed by the appellants Waqar Ali son of Mumtaz Ali, Umar Farooq alias Muhammad Farooq is dismissed and their conviction and sentence under section 302(c), P.P.C. is upheld. However, compensation awarded by the trial Court in terms of section 544-A, Cr.P.C. is set aside being against the law. Criminal Revision No,390 of 2015 filed by Mst. Tasleem Akhtar is also dismissed, for the foregoing reasons.