RAJA SAEED AKRAM KHAN, C.J. Through the appeals (supra), the common judgment of the Shariat Appellate Bench of the High Court (High Court) dated 31.03.2022, has been called in question, whereby the appeals filed by the convicts have partly been accepted, whereas, the reference sent by the trial Court for confirmation of death sentence has been answered in negative. As the titled appeals are outcome of one and the same judgment and the matter, hence, these are being disposed of through this single judgment.
2. The facts necessary for disposal of these appeals are that on a written report of the complainant a case in the offences under sections 34 and 302, APC was registered at Police Station Dadyal, on 18.08.2006, against the convicts and two others. It was reported that the complainant's brother was carrying a business of rent a car and he also used his own car for the purpose by driving himself.
Last night at 9:00 pm, Kabeer son of Muhammad Bashir, caste Mussalli, resident of Ward No.6 Dadyal, along with 2 other persons came in the office of his brother and hired his car. All the three persons boarded in the car with his brother and proceeded towards Chowk Shaheedan, whereas, the complainant remained present in the office. At night about 12:00 am, Muhammad Riaz, maternal uncle of the complainant, told him that the car of his brother has been confiscated by the Police. On this, the complainant searched his brother whole night but failed to find him. Today, at 09:00 am, he came to know that a dead-body is lying on roadside at Jawa Bihari, whereupon he along with police and some other persons reached at the spot and found the naked dead-body of his brother who has been killed by using firearm and sharp-edged weapons. It has further been alleged in the report that after boarding the accused persons in the car the brother of the complainant went to a video shop of Imran and the Imran and another person namely, Akhlaq Ahmed also saw Kabeer Hussain and two other accused persons with his brother in the car and the complainant is sure that last night, Kabeer Hussain along with two others murdered his brother just to snatch the car. On the registration of the case, the police arrested the convicts, Habib-ur- Rehman and Kabir Hussain, whereas, the co-accused namely, Pervaiz and Akhter, belonging to Malakand District, were not traced. The police presented the challan in the Court of Additional District Court of Criminal Jurisdiction Dadyal on 16.10.2006, in the offences under sections 34 and 302 APC, read with section 13 of the Arms Ordinance, 1965. The trial Court after necessary proceedings awarded death sentence to the convict, Kabeer Hussain under section 302(b), APC and sentence of 25 years' rigorous imprisonment to the convict-appellant Habib-ur-Rehman along with the sentence of 3 years' rigorous imprisonment under section 13 of the Arms Ordinance, 1965. The trial Court sent the reference to the High Court for confirmation of death sentence, whereas, the convicts filed separate appeals against the judgment of the trial Court before the High Court. The learned High Court while partly accepting the appeals filed by the convicts altered the sentence of death into life imprisonment and also reduced the sentence of 25 years' imprisonment into 10 years' imprisonment and answered the reference sent by the trial Court for confirmation of death sentence in negative through the impugned judgment. Now one of the convicts, Habib-ur-Rehman and the complainant have challenged the validity of the judgment of the High Court through the titled appeals.
3. On the last date of hearing, the learned counsel for the convict-Kabir Hussain, i.e. Raja Inamullah Khan, Advocate raised an objection that the appeal has been filed by the complainant, who is not the legal heir of deceased, whereas, in presence of the legal heirs of the deceased, the appeal before this Court by the complainant is not competent in view of the principle of law laid down by the superior Courts in a number of pronouncements. On this, the learned counsel for the complainant sought adjournment for preparing the case on this point; whereupon the case was adjourned. But when the case fixed and query was made to the learned counsel for the complainant; whether the appeal filed by the complainant instead of the legal heirs of the deceased, is competent or not, he failed to give any explanation having the legal backing. He referred to the case law reported as Muhammad Riaz and 2 others v. The State [PLD 2006 SC (AJK&K) 75] to establish the argument that the complainant being brother of the deceased is an aggrieved person and he was competent to file the appeal, however, from the perusal of the judgment referred to by the learned counsel it postulates that the same does not support the complainant version rather the same supports the defence version. In the referred report, it has been held by this Court that the case of qatl-e-amad liable to qisas irrespective of the fact whether the sentence of qisas is passed or not. It is the nature of the case, not sentence, which is of essence. The `walaya' in the case of murder is vested in the heirs of the deceased by law whatever sentence is passed by the Court. The relevant findings recorded in the judgment (supra) by this Court are reproduced hereunder:- "11. The offence of murder under Islamic Penal Laws Act now stands transposed to the Penal Code.
The right to waive or compound the offence of murder under section 309 or 310 of the Penal Code is vested in the heirs 'wali' of the deceased. Similarly, the qatl-e-amad is compoundable by the heirs of victim under section 345 of the Code of Criminal Procedure. The `wall' is defined under section 305 of the Penal Code as:- `(a) the heirs of the victim, according to his personal law; and
(b) the Government if there is no heir.'
In the case in hand the `wali' of the victim are his parents Raja Fazal Hussain Rabbani and Mrs. Tahira Rabbani and they are the persons who had challenged the decision of the District Criminal.
Court before the Shariat Court. The Government/the State could be the `wale only if there was no heir. Thus, flit only party necessary in this case was `wali' of the deceased, not the State which has been impleaded as party in this case. It in other words means that there is no respondent in the appeal.
12. The contention of the learned Advocate for the appellants that the sentence passed against the accused-appellants is not of `Qisas' but of `Tazie hence in the case of `Tazie the State alone is the party not the heirs of the victim, is misconceived for the reason that the case is of `qatl-e-amad' liable to `Qisas' irrespective of the fact whether the sentence of `Qisas' is passed or not. It is the nature of the case, not sentence, which is of essence. The `walayae in the case of murder is vested in the heirs of the deceased by law whatever sentence is passed by the Court. Government or the State does not matter in the case where the heirs of the deceased or victim are given this right to compound or waive. The above referred sections of the Penal Code are clear on the point. These sections of the law are based on philosophy of Islamic Penal Laws where the primacy in the case of `Qisas', `Tazie' and `Diyat' is vested in the `wall'/heirs of the deceased and not the State, while in the case of murder before introduction of Islamic Laws, the State had the over-riding power in all the cases of murder etc. State is however bound to prosecute for and on behalf of the victims, as it is the responsibility of the State to protect the life, honour and dignity of its subjects. But it cannot waive or forgive the rights of the victims, which is not It is latter only which can bargain not the former."
The learned counsel for the complainant also tried to convince the Court that it is a murder case and the same should be decided on merits. We are afraid, the Courts are not supposed to decide the cases on the desire of any party or on the sympathetic grounds rather the Courts have to decide the cases in accordance with law. Under Islamic dispensation of justice in criminal cases, primarily wali is to be considered in the case of qatl-e-amad etc. to be a person interested in prosecution of the case along with a right to compound the offence according to law. As far as strangers are concerned, including informer, they neither can claim qisas nor can compound the offence. Similarly in the cases of hurt, only injured being the victim is recognized for the purpose of receiving arsh, daman or to compound the offence and any other interested person neither can compound the offence nor can claim qisas or recover arsh or Daman. This proposition has thoroughly been dealt with by this Court in the case reported as Muhammad Malik v. Karam Elahi and another [2011 SCR 431] and in a recent judgment titled Zia Qamar and others v. The State and another (Criminal Appeal No.24 of 2022, decided on 16.02.2023) while relying on a number of pronouncements this Court held that the appeal filed by the complainant in presence of the legal heirs is incompetent.
For better appreciation the relevant paragraphs of the judgment (supra) are reproduced hereunder:- "4. We have heard the learned counsel for the parties and gone through the record. In the case reported as Muhammad Shafi and others v. Muhammad Asghar and others [PLD 2004 SC 875], it was held that:- 'At this very juncture, it is noteworthy that under Islamic dispensation of justice in criminal cases, primarily WALI(s) is to be considered in the case of Qatl-e-Amad etc. to be a person(s) interested in prosecution of the case along with a right to compound the offence according to law. As far as strangers are concerned, including informer, they neither can claim Qisas nor can compound the offence. Similarly in the cases of hurt, only injured being the victim is recognized. for the purpose of receiving Arsh, Daman or to compound the offence and any other interested person neither can compound the offence nor can claim Qisas or recover Arsh or Daman and nor he can be represented by the WALI at the time of execution of Qisas for hurt, etc. This discussion does not mean that the informer is excluded from the definition of a person aggrieved under Section 417(2- A), Cr.P.C. but in the presence of WALI(s) or the victim himself in the case of murder or hurt, respectively have right to invoke the jurisdiction of the Court in acquittal appeals however subject to the condition of non-availability of the WALI(s) in cases pertaining to the murder and hurt in case of injured person informer can institute such proceedings along with the person who is primarily interest with the prosecution of the accused.'
Subsequently, this Court in the case reported as Muhammad Malik v. Karam Ellahi and others [2011 SCR 431] reiterated the aforesaid view by holding that appeal against acquittal order can only be filed by an aggrieved person and in case of qatl-i-amd, wali/legal heir of the deceased and the Government/State are the aggrieved persons. As the appeal before the High Court was filed by the brother of the deceased, whereas, the legal heirs of the deceased i.e., widow, sons and daughters are alive, hence, in their presence the appeal filed by complainant-respondent was not competent.
5. The learned counsel for the complainant-respondent has no cavil with the legal proposition that the appeal before the High Court was incompetently filed in the light of principle of law laid down by this Court in the judgments referred to hereinabove, however, his only contention is that the appeal before the High Court was filed prior to the judgment of the Supreme Court of Pakistan, hence, the same is not applicable to the instant case. It may be stated here that in the judgments (supra) the law existing on the statute book was interpreted as it was and no new principle was laid down, hence, the stance of the learned counsel is misconceived that the judgment will take effect prospectively. Even otherwise, the judgment titled Muhammad Shafi v. Muhammad Asghar is also reported in [PLD 2004 SC 875], which shows that the judgment was delivered prior to filing of the appeal before the High Court, hence, from this angle too, the argument of learned counsel for the complainant-respondent is not convincing in nature."
In the light of the law discussed in the judgment referred to hereinabove, it becomes clear that the appeal filed by the complainant, who is not the legal heir of the deceased, in presence of the legal heirs, is not competent, so no need to discuss the merits of the case as the same will be a futile exercise.
4. Ch. Muhammad Mehfooz, Advocate, learned counsel for the convict-appellant, Abdul Rehman, submitted that he does not argue the case to the extent of acquittal. The convict-appellant has already served the sentence awarded to him by the High Court, therefore, he is entitled to be released from the jail.
5. The learned counsel appearing on behalf of the complainant and the learned Advocate- General, submitted that the convict-appellant is fully connected with the commission of offence.
He along with co-accused killed an innocent person just to snatch the car. The prosecution proved the case by producing the strong evidence. All the links of the chain are inter connected with each other and the trial Court after appreciating the material available on recorded rightly awarded the life imprisonment to the convict-appellant, but the learned High Court without any justification altered the same into 10 years' imprisonment.
6. We have heard the arguments and perused the record with due attention. As we have observed in paragraph No.3 that the appeal filed by the complainant is not maintainable being incompetently filed, hence, now we only consider the appeal filed by the convict-appellant, Habib- ur-Rehman. The allegation levelled against the convict-appellant is that at the time of occurrence he was armed with .30-bore A pistol, and he inflicted an injury at the abdomen of the deceased with the shot of said weapon. The record shows that the trial Court awarded the sentence of 25 years' imprisonment to the convict-appellant under section 302(c), APC and 3 years' imprisonment under section 13 of the Arms Ordinance, 1965 and the learned High Court reduced the sentence of 25 years' imprisonment into 10 years' imprisonment and maintained the sentence of 3 years' imprisonment awarded to him under section 13 of the Arms Ordinance, 1965. As we have declared the appeal filed by the complainant incompetent so no appeal for enhancement of sentence is alive. Although, the learned counsel for the convict-appellant in the open Court stated that he does not press the appeal to the extent of acquittal and made a request for releasing the convict- appellant on the ground that he has already served the sentence awarded to him by the High Court, however, for our own satisfaction we perused the record to ascertain; whether the learned High Court was justified to record the conviction and award the sentence of 10 years' imprisonment to the convict-appellant or not. The perusal of the record shows that although, the convict- appellant was not nominated in the FIR, however, later on, during investigation the police found him involved in the commission of offence and apprehended him. The record also speaks that the alleged pistol was recovered on the pointation of the convict-appellant and the other evidence available on record also connects him with the commission of offence. Nothing is available on record to believe that convict-appellant has falsely been implicated in the case due to any enmity.
So, we are satisfied that it is not a case of acquittal, however, the record shows that the cause of death of the deceased was the injury inflicted to him by the convict-Kabir Hussain with sharp edge weapon, thus, the main accused, who was also nominated in the FIR was Kabir Hussain. The convict-appellant also played the role in the commission of offence, however, it is a case of circumstantial evidence which is mainly based on last seen evidence and the record speaks that the statements of the last seen witnesses (except complainant) under section 161, Cr.P.C. were recorded after considerable delay, moreover, the role of the absconded accused persons, belonging to Malakand, has not been determined, and these circumstances cannot be ignored lightly. Furthermore, in the impugned judgment the learned High Court has also pointed out some other flaws in the prosecution story, i.e. non-recovery of alleged CD for the purchase of which the deceased went to the video shop along with the accused persons where the witnesses Imran and Akhlaq saw the accused, similarly, the corroboratory evidence in support of the statements of the witnesses Suleman and Saeed Iqbal has not been brought on record and the alleged damaged caused to the car of the deceased has also not been brought on record etc. In such state of affairs, in our view the learned High Court has rightly observed that due to mitigating circumstances involved in the case the convict-appellant is deserved for reduction in the sentence. It may be observed here that the mitigating circumstance is a fact or situation that does not justify or excuse a wrongful act or offence but that reduces the decree of culpability and thus may reduce the punishment in a criminal case, hence, we are satisfied that after pointing out the mitigating circumstances involved in the case in hand the learned High Court was justified to reduce the sentence. In view of the report submitted by the Jail Authorities it appears that the convict- appellant has already served the sentence of 10 years' imprisonment awarded to him by the High Court, hence, the Jail Authorities are directed to release the convict-appellant forthwith, if he is not required in any other case.
In view of the forgoing discussion, the appeal filed by the complainant is dismissed being incompetently filed, whereas, the appeal filed by the convict-appellant, having no substance, is also dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.