RAJA SAEED AKRAM KHAN, J.---The petitioners seek review of the consolidated judgment of this Court dated 15th December, 2017, whereby while accepting the appeal filed by the accused- respondents, herein, they have been acquitted, whereas the revision petition, filed by the petitioner, herein, for enhancement of sentence, has been dismissed.
2. The gist of the facts forming the background of the instant review petition is that Muhammad Javed, son of Sardar Shahmeer Khan, complainant, presented a written application to the S.H.O., Police Station Bagh narrating therein that he is a resident of village Nar-Shair-Ali-Khan. It was stated that his brother Pervaiz son of Shahmeer Khan, is the driver of Coaster No,0686/L.W.O, belonging to Gul Azam son of Muhammad Azam, being run from Dhulli to Lahore and one Zafeer son of Muhammad Siddique, caste Maldiyal, resident of Khalli-Darman Abbaspur, is a cleaner with him. On the fateful day, Pervaiz along with Zafeer, cleaner, after parking the vehicle at Dhulli went to sleep in the residential room of the upper storey of the hotel owned by Gul Azam. At about 10:00 p.m. some unknown person/persons with the intention to murder his brother Pervaiz, fired at him with a pistol, which hit on right side of his chest. It was further stated that Pervaiz was unable to speak and the complainant suspected that Gul Azam son of Muhammad Azam, Zafeer son of Siddique, Zulfiqar son of Rasheed and Kamran son of Zulfiqar have committed the offence. It was also reported that Pervaiz was also carrying some cash with him. On this report, FIR No,56/2011 in the offences under sections 324 and 337(F), A.P.C. was registered at Police Station Bagh on 27th March, 2011 at 11.00 p.m. Muhammad Pervaiz, injured, was referred to Rawalpindi for treatment, but he succumbed to injuries on his way to Rawalpindi, whereupon offence under section 302, A.P.C. was added, The Investigating Office went on the spot, collected the blood-stained articles from the place of occurrence, got conducted the postmortem of the deceased and recorded the statements of the prosecution witnesses, under section 161, Cr.P.C. The accused nominated by the complainant were arrested. During the investigation, it transpired that Ali Pasha and Muhammad Khalid have committed the offence. They were accordingly arrested on 3.4.2011 and 4.4.2011, respectively. On the pointation of Muhammad Khalid, convict, a Kalashnikov was recovered.
Sections 34, A.P.C. and 13 of the Arms Act, 1965, were further added, after recovery of Kalashnikov.
After necessary proceedings, the challan in the offences under sections 302, 34, A.P.C. and 13 of the Arms Act, 1965, was presented in the District Court of Criminal Jurisdiction against Muhammad Khalid and Ali Pasha, convicts-respondents, on 3.5.2011. The other nominated accused in the FIR were released under section 169, Cr.P.C. The statement of the accused under section 265-B, Cr.P.C. was recorded on 3.6.2011. They pleaded not guilty, whereupon the prosecution was asked to lead evidence in support of the charge. The prosecution examined 23 witnesses out of 29. After recording the evidence, the salient features of the prosecution evidence were put to the convicts, respondents, herein, on 8.3.2014 under section 342, Cr.P.C. The convicts again claimed their innocence. They also led defence evidence. After hearing the parties, the learned District Court of Criminal Jurisdiction, Bagh vide judgment dated, 12.1.2015 found guilty Muhammad Khalid and Ali Pasha for committing murder of Muhammad Pervaiz, deceased and awarded them sentence of life imprisonment under sections 307(c) and 34, P.C. along with compensation of Rs. 100,000/- each under section 544-A, Cr.P.C., which if received, shall be paid to the legal heirs of the deceased. In case of non-payment of the compensation, the convicts shall have to undergo 6 months each simple imprisonment. Muhammad Khalid was further sentenced to 6 months' simple imprisonment along with fine of Rs.10,000/- for committing the offence under section 13 of the Arms Act, 1965, and in default of payment of fine, he was to undergo one month's simple imprisonment. The benefit of section 382-B, Cr.P.C. was extended to the respondents, herein. The respondents challenged the legality and correctness of the judgment passed by the District Court of Criminal Jurisdiction, Bagh on 16.1.2015 by way of appeal before the Azad Jammu and Kashmir Shariat Court, whereas, Muhammad Javed, complainant, also filed an appeal before Shariat Court for enhancement of the sentences awarded to the convicts. The learned Shariat Court of Azad Jammu and Kashmir dismissed both the appeals through the judgment dated 22.2.2017, while partially modifying the convictions awarded to the respondents recorded under section 302(c) into section 302(b), A.P.C.
The judgment passed by the Shariat Court on 22.2.2017 was challenged before this Court, which has been decided through the judgment under review, in the manners indicated hereinabove.
3. Sardar Karam Dad Khan, advocate, counsel for the petitioner, submitted that some important aspects of the case have been oversighted by this Court, while delivering the judgment under review. He argued that this Court has not taken into account that the trial Court, after due deliberation and appreciation of the evidence, came to the conclusion that that the prosecution succeeded to prove the case beyond reasonable doubt and the findings of the trial Court were upheld by the first appellate Court. The learned counsel added that normally this Court remains very slow to interfere with the concurrent findings of the Courts below until glaring misreading of evidence is found but while handing down the judgment under review, the said principle has not been followed. The learned counsel added that this Court has overlooked the fact that both the Courts below belied the motive, as the evidence of extra-judicial confession made by the convict- respondents before the respectables of the area, cannot be discarded/disbelieved, as the same was a strong piece of evidence. He added that Article 40 of the Qanun-e-Shahadat, 1984, has also not been taken into account while delivering the judgment under review. The learned counsel added that no enmity has been brought on the record to falsely implicate the accused- respondents to let the real accused off. He submitted that the statement of Muhammad Zafeer and Gul Azam, who are the witnesses, of post incident, has been corroborated by the other prosecution witnesses, namely Muhammad Khurshid, Muhammad Ayub and Muhammad Tahir, who are natural witnesses, and the same cannot be overlooked or taken lightly. The learned counsel added that the prosecution witnesses were not cross-examined on material points, as well as on the statement of the Investigation Officer, which shall be presumed to be admitted in toto.
The learned counsel lastly submitted that all these aspects escaped the notice of the Court, while delivering the judgment under review, which justify the admission and grant of review.
4. On the other hand, Raja Sajjad Ahmed Khan, advocate, counsel for the respondents, supported the judgment passed by this Court while submitting that the same is perfectly legal in all aspects and has been passed after due deliberation and appreciation of the evidence brought on the record, which is not open to review. The learned counsel submitted that the scope of criminal review is very limited, hence, review cannot be allowed for satisfaction of a party. The learned counsel referred to pages 8 to 14 of the judgment under review, while submitting that the points raised in support of the review petition, have already been dealt with by this Court in depth and this Court has rightly came to the conclusion that the prosecution case is full of doubts and benefit should be extended to the convict-respondents, as a matter of right.
5. We have heard the learned counsel for the parties and gone through the judgment under review along with the record made available.
6. Although this Court has ample powers to review its judgment but the same cannot be claimed as a matter of right, rather it is the discretion of the Court to review the same, if the petitioner succeeds A to point out any error floating on the face of judgment but at the same time, it cannot be allowed to reopen the case by way of review, as there is lot of difference in the scope of review petition and the appeal. The scope of review in criminal matters is much narrow than the civil matters and where a conscious and deliberate decision has been made with regard to the nature of orders, which it is empowered to pass under a provision of law only, because another view with regard there to is canvassed cannot and does not constitute a ground for review.
7. So far as the argument of the counsel for the petitioner that concurrent findings of facts, arrived at by the Courts below in the criminal cases, cannot be disturbed in appeal, is concerned, it may be observed that the findings recorded without appreciation of evidence and the material brought on the record, are not sacrosanct and the Court while making appraisal of the evidence and the record, can validly set aside the same. Reference may be made to the case reported as Ahsaan Azeem and 2 others v. The State and 2 others [2014 SCR 735], wherein, it has been observed as under:-- "........It is now settled principle of law that concurrent findings are normally maintained except if the Supreme Court satisfied that findings of the Courts below have been arrived at by disregarding any provision of law or accepted principles of appreciation of evidence or are based on inadmissible evidence or misreading of evidence, then such concurrent findings lose their sanctity...."
In the case reported as Allah Bukhsh v. The State [2002 SCMR 1260], it was observed as under:-- "............Primarily, it is the function of trial Court and High Court to sift the evidence in its true perspective for doing justice between the parties and this Court would not review the evidence simply on the ground that different conclusion could be drawn if the evidence would have been evaluated from a different angle. We have noticed that it is not a case of misreading or non- reading of evidence nor of appraising the evidence by ignoring the established judicial norms laid down by the superior Courts. It is a practice of this Court not to interfere with appreciation of evidence done by High Court, particularly when trial Court and High Court have recorded concurrent findings and no law point is raised, which could provide a ground to reverse the findings recorded by two Courts below. To interfere in concurrent findings recorded by two Courts below relating to appraisal of evidence is exception, which of course can be resorted when it is manifested that appraisal of evidence was misdirected and had ultimately resulted into miscarriage of justice. No such aspect was identified. It was a planned and brutal murder and was to be awarded by death penalty."
Similarly, in the case reported as Abdul Khalid v. The State [1996 SCMR 1553], it was also observed as under:- "Normally concurrent findings by the Courts below are not to be interfered with, except when there is misreading of evidence of non-consideration of an important piece of evidence by the Courts below. In the case of Muhammad Rahim v. The Crown (PLD 1951 Baluchistan 39) the then Judicial Commissioner, Baluchistan dealing with powers of the High Court under section 439, Cr.P.C. took view that such powers are virtually unfettered but it is not normally the practice to interfere particularly in a case where there are two concurrent findings of fact in the lower Courts, unless it is abundantly clear that the judgments of the lower Courts are perverse and have led to clear miscarriage of justice "
While keeping in view the above-reproduced principle of law, laid down by the superior Courts, we have examined the case in hand. The points raised in support of the review petition have already been dealt with and attended to by this Court in detail, in paragraphs 7, 8 and 9 of the judgment under review, which are as under:- "7. The prosecution has tried to build up his case on the basis of the motive on the ground that some amount was taken from the deceased by Ali Pasha, convict and on his demand, some altercation took place between them and finally Ali Pasha refused to return the amount. Upon his refusal the deceased threatened Ali Pasha to bring to light all his activities. In response, Ali Pasha also threatened him that he would not be able to bring to light his activities, because he will be killed by then. This motive has not been proved by the prosecution at trial. It is well settled principle of law that the prosecution is not bound to allege the motive for bringing the guilt to home of the accused but once the motive is set up by the prosecution then it is the duty of the prosecution to prove the same through concrete evidence. In the case in hand, the trial Court has disbelieved the motive, which was very important because the whole case rests on the circumstantial evidence. In such cases the motive is alleged then it is the duty of the prosecution to prove the same as one of the important chain of the events, which link the convict with the commission of the offence.
8. The second important evidence, which has been relied upon by the prosecution is the extra judicial concession, which allegedly has been made before Muhammad Idrees, Shoukat Hayat and Sardar Khalil. These persons are well known arbitrators of the area but the fact remains that after the commission of heinous offence which fact motivated the culprits to approach the above mentioned notables of the area for settlement of the case. In such circumstances, extra judicial confession, which has been made jointly, cannot be relied upon for the purpose of recording the conviction. It is the duty of the Court to pass proper conviction if cogent evidence has been led by the prosecution, but conviction cannot be based on the evidence which is neither admissible nor confidence inspiring. The witnesses who have taken the deceased to the hospital were arrested by the police. Their statements under section 161, Cr . P. C.were recorded in which they have not mentioned about the alleged motive or altercation between the deceased and the convicts. It is celebrated principle of law that conviction on the basis of circumstantial evidence can be passed but such evidence should be free from doubt, confidence inspiring and based upon such pieces which form a. chain of unbroken events. In the case reported as Javaid Akhtar v. Muhammad Zubair and 3 others (2015 SCR 533), this Court while considering the proposition at page 542 of the report has opined as under:-
8. There is no direct evidence in the case. The case is based upon circumstantial evidence. An accused may be convicted on the basis of circumstantial evidence provided that such evidence is confidence inspiring and is based upon such pieces which form a chain of unbroken events and every link in the chain is connected with each other so that no link in the chain is missing and one end of the chain touches the dead body and the other to the neck of the accused and from such evidence that no other inference except the guilt of the accused is drawn. If any link is missing and chain of events is broken then an accused cannot be convicted on the basis of such circumstantial evidence.'
Similarly, in another case reported as Abdul Rasheed Gresta and another v. The State through Advocate General, Azad Jammu Kashmir, Muzaffarabad and others (2013 PSC (Crl.) 732), the same principle was reiterated and followed by this Court while observing as under:-- '13. Before proceeding further, we may observe that in the case of circumstantial evidence, the pieces of evidence shall form the chain of the events. All the links in the chain shall be fully connected and interlinked. If any link of the chain is missing then the whole case falls. In a case resting on the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. If a single link of the chain is missing, in such circumstances the circumstantial evidence cannot be relied upon. Every link in such a case should be proved by cogent evidence and if not, then no conviction could be maintained or awarded to an accused. In a case of circumstantial evidence, an accused cannot be held guilty on the basis of circumstantial evidence until and unless the facts proved are incompatible with his innocence and are incapable of explanation upon any reasonable hypothesis that that of his guilt.'
In the referred case, there was no direct evidence of the occurrence but the other circumstantial evidence was not confidence inspiring, hence, was not believed by this Court. The convicts therein were acquitted although they were sentenced to death by the trial Court and their sentences were maintained by the Shariat Court of the Azad Jammu and Kashmir. In another case reported as Hamid Nadeem v. The State (2011 SCMR 1233), a larger bench of the apex Court of Pakistan has observed at page 1237 in paragraph No, 13 of the report as under:-- '13. We are well-conscious of the fact that conviction can be based on extra judicial confession when it is corroborated by other reliable evidence. However, extra judicial confession being regarded as a weak type of evidence by itself, utmost care and caution has to be exercised in placing reliance on such confession. Recovery of crime weapon and blood-stained clothes of appellant could have supported the prosecution case but in the instant case that too are not beyond doubt as would be clear from the subsequent discussion.'
9. While perusing the impugned judgment passed by the learned Shariat Court, we have noticed that the learned Court has mostly relied upon the police diaries for recording the conviction and has also reproduced the same. We are of the considered view that this is not proper to pass conviction on the opinion given by the police in police diaries because the same is not a substantive piece of evidence. Neither any acquittal nor conviction can be based on such diaries.
Reference can be made to the case reported as Akhtar Pervaiz Qurshi v. The State (PLD 2012 Sindh 313), wherein at page 323 of the report, it has been observed as under:-- '...Any criminal Court may send for the police diaries under inquiry or trial in such court and may use such diaries not as evidence in the case but to aid it in such inquiry or trial before the court.
While deciding the bail application by the learned ADJ, neither any inquiry was pending nor any trial in his court and before confirmation of bail, charge sheet was already submitted in the competent court which shows that the said police-diary either inadvertently or due to some bona fide mistake which did not cause any prejudice to the Trial nor it misguided the court nor accused was granted bail on the basis of that police-diary. The acquittal or conviction cannot be based on police diary but it depends upon the outcome of trial on merits...'
Same view has been reiterated by Peshawar High Court in the case reported as Shakil Ahmed v.
Muhammad Rafique and another (1999 PCr.LJ 1137), wherein at page 1140 of the report it was observed that no finding can be recorded on the basis of police diaries which are mere opinion cannot be made a basis for finding of the Court. The relevant portion of the referred judgment is reproduced as under:-- ...We are also constrained to record that the learned lower Courts in general and the Court of learned Additional Session Judge, Haripur who has passed the instant order in particular shall refrain in future to go by the case diaries of the police which are based on no evidence and are mere opinions. No findings shall be based on such case diaries.'" In view of the above discussion, we have failed to find out any error apparent in the judgment under review, which may justify the review of the judgment. Resultantly, finding no force in this review petition, the same is hereby dismissed.