' Through this review petition, the petitioner seeks reconsideration of the judgment passed by this Court on 6th of December, 1981, whereby leave to appeal to the petitioner was refused.
2. The only point agitated and debated at the bar in support of the petition for leave to appeal was about the waiver. It was claimed by the petitioner that the pre-emptor/non-petitioner had disentitled himself to pre-empt the suit land as he being disinterested declined to purchase the same.
3. Leave to appeal was refused on the ground that the Supreme Court can interfere only when the decision is patently erroneous or based on no evidence, non-reading of evidence or such that it could not honestly be arrived at after giving due consideration to the facts and circumstances of the case and as none of the defects, listed above, in my view, were noticed in the impugned order, leave to appeal was refused. The learned Judge of the High Court, it was found, had recorded well- reasoned out judgment to disown this claim of the petitioner. It was further held that in order to justify grant of leave, at least some serious questions of law to indicate miscarriage of justice must, prima facie, be made out. The mere fact that opinion may differ (as was canvassed in this case) if a fresh appraisal of the evidence is made out, hardly provides a valid ground for acceptance of the petition for leave to appeal. It was also held that this Court has always declined to assess the weight of the evidence barring the cases, of course, where the evidence has either been misread or not read at all.
4. I have heard the learned counsel for the parties in support of their respective contentions. Mr. Muhammad Yunus Surakhvi, the learned Advocate appearing on behalf of the petitioner, maintains that some of the evidence has not been taken into consideration in its true perspective. Elaborating his view point he submitted that the statements of Raj Muhammad, Muhammad Nazir and contained sufficient material to constitute waiver on the part of non-petitioner, Karamat Begum.
5. I am unable to subscribe to the contention of the learned counsel for the petitioner. The submission clearly wants me to reappraise the evidence. This contention practically agitates the same objections which, in my view, were discussed and discarded in the impugned judgment. No error muchless an error apparent on the face of the record is disclose in the impugned judgment as required by rule I of Order XLVII of the Code of Civil Procedure. The plea now taken amounts to challenge to correctness of the view already taken by this Court. To permit a review petition on the ground of incorrectness of the view (which is not even the case here) would amount to granting the Court the jurisdiction to hear the appeal against its own judgment and that surely is not the scope of the review jurisdiction. No mistake in a considered conclusion, whatever the extent of that mistake may be, can be a valid ground for the exercise of review jurisdiction. Review is not competent on the ground that the conclusion is wrong unless, of course, something obvious has been overlooked.
6. As said in the first part of the judgment this Court would not sit in appeal on its own judgments as their must be end to litigation. A review by its very nature is not an appeal for rehearing merely on the ground that one party or the other considers himself to be dissatisfied with the decision of this Court. It can only be granted for some sufficient cause akin to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure, As none of the grounds justifying the review of the order are available in this case, the review is incompetent. Besides, I also entertain the belief that the review is untenable because the ground of , waiver raised in this review petition is only aimed towards reappraisal of the evidence which normally the Supreme Court would not undertake. The scope of review petition is so limited that in certain cases despite the fact that this Court may feel inclined to have a different view, would not review its orders due to the limited scope of the review petition.
' For the view I have taken in the matter this petition fails.
Petition dismissed.
THE END PLD 1984 Azad J& K Shariat Court 1 Before Abdul Majeed Malick, C. J. And S. Muhammad Ashraf Khan, J Criminal Appeals Nos. 7 and 9 of 1984 KHALID HUSSAIN AND ANOTHER-Appellants versus THE STATE AND ANOTHER-Respondent Criminal Reference No, 7 of 1984 THE STATE-Appellant versus KHALID HUSSAIN-Respondent Criminal Appeals Nos. 7 and 9 and Criminal Reference No, 7 of 1984, decided on 24th July, 1984.
(Appeals and reference arising out of the order of the District Criminal Court, Mirpur, dated 7th April, 1984).
(a) Words and phrases- Identification"----Meaning---Evidence Act (1 of 1872), S. 9-Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (XI of 1974), S. 5.-[Identification]. [p. 4]A
(b) Azad Jammu and K asnmir Islamic Penal Laws Enforcement Act (IX of 1974)- - S. 5-Murder-Sentence of Qissas-Identification, importance of.- [Identification]. [p. 4]B et seq Satya Narain's case AIR 1953 All. 285 and Ismail and another's case 1974 SCM R 175 ref.
(c) Azad Jammu and Kasmir Islamic Penal Laws Enforcement Act (IX of 1974)- --- S. 5-Murder-Sentence of Qissas-Identification, necessity of-Accused a fruit and vegetable vendor, carrying on business in a `Khokha' located near place of incident-Name of accused expressly and specifically given in F. I. R. - Eye-witness in Examination-in-Chief, expressly disclosing name of accused as assailant and holding him responsible for infliction of injury-Occurrence taking place at early evening (5-15 p.m.) at road side-Accused not attributing any motive by prosecution-Holding of identification parade, in circumstances, held, not necessary-Evidence Act (1 of 1872), S. 9.-[Identification].
[p. 5]C et seq
(d) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- . - S. 5-Murder- Sentence of Qissas-Identification-Person known to witness by face, features, voice and complexion-Mere not knowing of name, of accused, held, not sufficient to warrant test identification of such person-In presence of knowledge of all material factors of identification, ignorance of one of factors like name, not important to discard testimony on such count-Evidence Act (I of 1872), S. 9.-[Identification]. [p. 6]D
(e) Words and phrases- -- "Interested"-Meaning. [p. 66]E
(f) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- -- S. 5-Murder-Sentence of Qissas-Witness-Testimony of inimical and interested witness corroborated in material particulars-Testimony of such witness, held, believable.-[Witness]. [p. 7jF
(g) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- - S. 5-Murder-Sentence of Qissas-Witness-Testimony of witness not shown, motivated or hostile to implicate accused-Testimony of such witness, held, could not be discarded on account of his relationship with deceased.-[Witness]. [p. 71G Mehtab Khan's case PLD 1979 SC (A I & K) 23 rel.
(h) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- -- S. 5-Murder-Sentence of Qissas -Evidence-Standard of affirmative evidence not same as that of evidence sought to oe corroborated-Corroborative evidence, held, was not necessary to be of same probative force.-[Evidence). [p. 8]H Mehtab Khan's case PLD 1979 SC (A J & K) 23 ref.
(0 Criminal Procedure Code (V of 1898)- - S. 154-Fiist Information Report-Not a substantive piece of evidence-First Information Report always used as corroborative piece of evidence-First Information Report prepared after preliminaries, held, would not affect case of prosecution, so much so to record acquittal.-[First Information Report]. [p. 8]/
(1) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- -- Ss. 4 & 5-Murder-Sentence of Qissas-Dip at-No conspiracy, pre-concert or premeditation attributed to accused-Accused giving forceful blow with stick on head of deceased, presumed to have knowledge that injury would cause death-Offence of culpable homicide amounting to murder, held, established-Offence committed without any motive and premeditation, sentence of Qissas altered to one of Diyyat in circumstances.-[Sentence]. [p. 10]./ M. All Muhammad for Convict-appellant (in,Cr. Appeal No, 7 of 1984). M. Nisar Mirza, Addl. A.-G. For the State.
Ch. All Muhammad for Complainant (in Cr. Ref. No, 7 of 1984). Dates of institution : 8th, 10th and 24th April, 1984.
' ABDUL MAJEED MALLICK, C. J.-This order shall dispose of (I) appeal filed by Khalid Hussain, against his conviction and sentence of Vissas', (2) appeal against acquittal filed by Muhammad .Tariq, complainant and (3) reference for confirmation of sentence of `Qissas' made by the District Criminal Court, Mirpur, as the matters arise out of a common order of the subordinate Court, recorded on 7th April, 1984.
2. Ghuiam Sarwar deceased was owner and driver of Bus No, A J K2317 and Ghulam Shabbir, respondent, was owner and driver of Bus No, AJK-5676. Bui No, AJK-2317 was plied on Mirpur- Jhelum route, whereas the other Bus was allotted Dayal-Mirpur route. The immediate cause for incident, as shown by the parties, was failure to adhere to the scheduled timing of the buses. Bus No, AJK-2317 belonging to the deceased, had one daily scheduled trip from Mirpur to Jhelum and back. In the afternoon, bus was taken to Jatlan and back to Mirpur the next morning. On the day of incident, Ghulam Sarwar drove the bus from general bus-stand Mirpur towards Jatlan and stopped it at Stadium Chowk, to pick up more passengers. Meanwhile, Ghulam Shabbir arrived with his bus and parked it few yards ahead in front of the bus of the deceased. On this, both the deceased and Ghulam Shabbir came out of their buses and engaged in the altercation. Muhammad Tariq, complainant and Muhammad Yusuf, respondent, conductors of the buses, joined them when Khalid Hussain, convict-appellant armed with a Wanda' rushed on the scene and inflicted three successive blows on the head of Ghulam Sarwar who fell down and lost his consciousness. The accused disappeared l'rom the scene and Ghulam Sarwar was removed to the hospital where he died the next day at 5-30 p.m. The time of incident was disclosed as 5-15 p.m. The incident was witnessed by Muhammad Tariq, Manzoor Hussain and Munir Hussain, driver of the bus of the deceased. Khalid Hussain was fruit and vegetable vendor. He was running the business in a `Khokha', placed at a short distance from the place of incident. He was nephew of Ghulam Shabbir.
Respondent. The accused were residents of village Nagial of Khari area whereas Ghulam Sarwar deceased and Muhammad Tariq, belonged to village Masoompur, Tehsil Kharian. As Shah Muhammad, brother-in-law of Muhammad Tariq and Ghulam Sarwar, deceased resided in village Banni, at a short distance from village Nagial, it appeared that the deceased and Muhammad Tariq also ordinarily resided there for the night. This position finds supports from the record, as Aurangzeb and Muhammad Alzal, P. Ws. Who were residents of village Balm, Tehsil Mirpur, were shown closely related to the deceased.
3. It is evident from the record that it was not the first occasion when Ghulam Shabbir and Gbulam Sarwar, deceased, had quarrelled, but non-adherence to the scheduled timing of the buses of the parties was the cause of two previous encounters between them, one at 'Pill Manda' and the other at 'Put Banni', in Khari area.
4. The place of incident is Sports Stadium, on the right bank of Mian Muhammad Road, Mirpur city.
About 15 `Khokhas' of fruit and vegetable vendors were located on the left bank of the road. The cause of death, as shown in the post-mortem report, was inner hemorrhage due to lacerated wound on left side of partial region, 24 x 14 x 11. The parietal bone and lobe of brain was found lacerated and compressed. The First Information Report, Exh. P. A. Was made by Muhammad Tariq, in the hospital. The District Criminal Court, Mirpur, on holding trial, recorded conviction of Khalid Hussain and awarded him sentence of `Qissas' under section 5 of the Islamic Penal Laws Act. In absence of evidence against Ghulam Shabbir and Muhammad Yusuf, they were acquitted of the charge of murder.
5. Kh. Ali Muhammad, the learned counsel for the convict and acquitted respondents, challenged the finding of the District Criminal Court on various counts and contended that the finding pertaining to conviction of Khalid Hussain was unwarranted. However, he supported the impugned order to the extent of acquittal of Ghulam Shabbir and Muhammad Yusuf. The acceptance of appeal against conviction was sought on the following grounds :-
(1) That the complicity of Khalid Hussain whose particulars and whereabouts were unknown to the prosecution witnesses, was not established, as prosecution failed to hold test identification parade;
(ii) that Muhammad Tariq, being brother of the deceased, was an interested witness, his evidence being suffering from bias, was incredible;
(iii) that the testimony of Muhammad Tariq was not corroborated by independent evidence;
(iv) that the First Information Report could not be given weight as its recording after preliminary investigation, was established on record; and
(v) on even acceptance of liability of injury ascribed to Khalid Hussain, it was not a case of culpable homicide amounting to murder.
' The aforesaid objections were supported by AIR 1934 Lah. 345, AIR 1938 Pesh. 10 .A R 1929 Lah. 37, PLD 1953 B J 270, PLD 1981 SC 243 and 1981 SC M R 389. Mr. M. Nisar Mirza, the learned Additional Advocate-General and Ch. Ali Mudammad, the learned counsel for Muhammad Tariq, complainant, controverted the objections raised by the learned counsel for the convict and argued that the prosecution proved its case beyond reasonable doubt against all the accused, as such order of acquittal of Ghulam Shabhir and Muhammad Yusuf, was perverse and unlawful. The conviction of all the accused was expedient to meet the ends of justice.
6. The objection of identification of Khalid Hussain, appellant, was discussed at length by taking us through the entire evidence of the case and it was sought to be established that Khalid Hussain was not known to the prosecution witnesses at the time of incident, as such his involvement was not free from doubt. The objection is to be resolved in the light of testimony of Muhammad Tariq and Munir Hussain, eye-witnesses alongwith attending circumstances, including the manner, the place and time of incident. But before doing so, we propose to record the definition of the word, 'identification' and its importance, attached to it in matters of criminal jurisdiction. In Chambers Twentieth Century Dictionary, page 648, the word 'identification' is defined as :- "act of identifying; state of being identified: anything which proves one's identity; a process by which a person assumes the behaviour, ideas, etc., of someone else, particularly someone whom be admires the same, to make, reckon, ascertain or prove to be the same: to ascertain or establish the identity of: to assign to a species: to bind up or associate closely, to regard, or wish to regard (oneself) as sharing (with a person or group) interests and experiences, or (because of an emotional tie, usually abnormal) attitudes, characteristics and behaviour-to become the same."
' The precise meanings given to the word, 'identification' in its ordinary use, are to prove one's identity by expression of knowledge and acquaintance or familiarity. In matters of criminal jurisdiction, in order to fix the liability of a particular person, proof of his identification is always considered important. For unless a person was not shown connected with the incident he could not be burdened with the liability of such incident. It was for this that where the identification of accused ascribed the charge of offence, was challenged, the onus was always placed on the prosecution to prove the identification of such a person beyond reasonable doubt. The objection of identification usually gained importance in the case of night crimes or where the whereabouts of the culprits were unknown. In such cases test identification parades were arranged by the police and evidence of test identification parade was placed before the Court, Therefore, test identification parades were considered important only in that category of cases and not in every case. This, again much depended on the facts of each case. The proposition was once placed before the Honourable Judges of High Court in Satya Narain's case (1), wherein it was observed that absence of identification proceedings were not a reason to discard the entire sworn testimony of the witnesses. However, it was held that in practice it was not safe to accept the testimony of the witnesses about the complicity of the accused in the crime, if the witnesses did not describe such accused by name or other particulars during the investigation and were even unable to identify him out of a group before the Court. When the proposition came before the Supreme Court of Pakistan in Ismail and another's case (2), it was observed in answer to an objection to identification test that identification parade to identify an accused was not necessary because a witness did not say that he did not know the accused persons but he merely stated he was not familiar with their names at the time of incident. It was held that it was only where the accused was seen for the first time at the place of incident by a witness that it became necessary to put such witnesses at a test identification parade. If the accused was already known by 'face though not by name, it was unnecessary to put up such witness to test identification as in such identification parade, he was only to identify the accused by face and not by name. The objection relating to failure to hold test identification was, therefore, overruled.
7. In the instant case, the objection is equally not enforceable for the following reasons:-
(a) Khalid Hussain was ascribed fruit ,and vegetable selling, in a `Khokha' near the place of incident.
This fact was established to our complete satisfaction. For in statements recorded under sections 242 and 342, Cr. P. C. Khalid Hussain, described his profession as business, at both occasions it was ascribed to him that at the time of incident he was selling fruits and vegetables in the said `Khokha' from where he rushed to the scene and inflicted injury to the deceased. The attribution of crime was denied by him. But the fact that he was a fruit and vegetable vendor and carrying on business in a `Khokha' located near the place of incident was undented. This allegation was specifically C put to Ghulam Shabbir and Muhammad Yusuf. Both of them failed to deny the fact that Khalid Hussain was vegetable and fruits vendor in a `Khokha' placed near the place of incident.
(b) his name expressly and specifically was given in the F. I. R. Muhammad Tariq who lodged the R., honestly admitted ignorance about the name of Khalid Hussain at the time of incident and disclosed that such information was acquired by him from the neighbouring `Khokha-holders'. The information reached him at the time of
(1) AIR 1953 All. 285 (2) 1974 SCM R 17i incident and then passing on the information of particulars of Khalid Hussain in the F. I. R. Cannot be lightly ignored.
(c) Munir Hussain, another eye-witness in examination-in-chief, expressly disclosed the name of Khalid Hussain as assailant and responsible for the infliction of injury. His testimony on this score was not shown incredible by any stretch of imaginatih.
(d) Time and place of incident was also important to throw light on the objection. The incident, as stated earlier, took place at Sports Stadium, adjacent to Mian Muhammad Road. Keeping in view the time and place of incident there was hardly a reason to disbelieve in the information containing the name and particulars of true assailant.
(e) Khalid Hussain was not attributed any motive by the prosecution. On the other hand, Ghulam Shabbir who had two previous encounters with the deceased and Muhammad Tariq and whose initiation of quarrel was clearly motivated, was not substituted for the real culprits. In case prosecution wanted to substitute the real culprit, in our estimation, Ghulam Shabbir was a better choice to serve the purpose. As in this part of the country substitution was very rare it was undesirable to suggest that Khalid Hussain was the victim of substitution. An immediate absconsion of Khalid Hussain from the `Khokha' was another factor. The aforesaid facts were counted to show that test identification in the case was not tecessary. Another important reason unrequited by the evidence on record was that of Muhammad Tariq, Bus Conductor. In routine, his Bus stopped for half hour twice a day at the bus-stand. In the circumstances, acquaintance and familiarity of Muhammad Tariq with Khalid Hussain whose `Khokha' was situate quite near and opposite to the Bus-stand, was not improbable. It was for this that Khalid Hussain, in his testimony, disclosed that he knew all the `Khokha' owners but their names were not known to him. It was evident from his testimony that like all others, Khalid Hussain who was running a `Khokha* was knosn to him by face and physical features but not by name. In our view, when a person was known to a witness by face, features, voice or complexion, mere unknowing of the name was not suffioent to warrant test identification of such person. For name and parentage was one of the factors like complexion, face and physical features of a person to prove identification. In presence of knowledge of all material factors of identification, ignorance of one of the factors like the name, was, therefore, not important to discard the testimony on such count. The authorities cited by the learned counsel in support of this contention were not found apt to the facts of the present case.
Therefore, we need not go into details of those cases.
8. The next objection pertains to interested evidence of Muhammad Tariq. It was already noticed that Muhammad Tariq was true brother of Ghulam Sarwar deceased. Presence of Muhammad Tariq at the scene was accepted to the defence, as Ghulam Shabbir, in his statement under section 342, Cr. P. C. Admitted participation of Muhammad Tariq in the quarrel. The word, 'interested' as defined in the 'Chambers Twentieth Century Dictionary', carries the meaning "advantage, benefit, premium paid for the use of money; any increase; concern, importance; personal influence; a right to some a I vantage; claim to participate or be concerned in some way; stake; share; behalf; partisanship or side; the body of persons whose advantage is bound up in anything; regard to advantage; a state of engaged attention and curiosity; disposition towards such state: power of arousing it; that in which one has interest or is interested.-v.t. To concern deeply; to cause to have an interest; to engage the attention of; to awaken concern in; to excite (on behalf of another).-adj. Interested, having an interest or concern, affected or biased by personal considerations, self-interest, etc."
' The consensus was that a relation witness was placed in the category of interested witnesses.
Thus, there was no dispute with the proposition that relationship of Muhammad Tariq with the deceased, placed him in the class of an interested witness. But, again, the consensus was that relationship, by itself, was not sufficient to discard the testimony of an interested witness whose testimony was otherwise found convincing, satisfactory and credible. The testimony of a related witness was seldom disregarded unless, of course, such testimony was accompanied by hostility towards accused. The evidence, of an interested witness accompanied by hostility towards accused, was generally not accepted in absence of independent corroboration, as the Courts in such situation, as a safeguard, were put to alert. Thus, an interested and inimical witness was to be believed only when the testimony of such a witness P was corroborated in material particulars. In the present case, Muhammad Tariq, complainant, whose testimony was sought to be disregarded on account of his relationship with the deceased, was not shown motivated or hostile to implicate Khalil Hussain. In absence of hostility or motivation, G we are not persuaded to discard his evidence. This view finds support from Mehtab Khan's case (1), wherein it was held that mere fact of witnesses being related inter se or to deceased, was not sufficient to discard his testimony outright if such witness otherwise was found to be a witness of truth.
9. Next, it was contended that the evidence of the interested witness was not corroborated in material particulars, as such conviction was not supported by sound reasons. The objection was again devoid of force. We have already noticed that evidence of Muhammad Tariq was not shown suffering from any legal defect so as to render it incredible. Apart from that, corroborative evidence was quite available to uphold the conviction. Munir Hussain, was another eye-witness of the incident. He was not shown related, interested, or inimical by any standard. It was correct that at the time of incident, he was an employee of the deceased but it was evident from the testimony that 10-15 days after the incident, he left the job and was employed somewhere else. This witness, while giving the details of the incident, attributed infliction of fatal injuries to [(hand Hussain. He specifically named the accused and identified him, in the Court. This part of his testimony was not seriously challenged. In addition to that, medical evidence was another material piece of evidence which corroborated Muhammad Tariq, P. W. Complainant. Khawaja Ali Muhammad, the learned counsel for the convict-appellant, endeavoured to persuade us to reject the testimony of Muhammad Tariq as attribution of three successive blows made by him was not proved by medical evidence. We have already explained the state of injury, disclosed in the medical evidence. In post-mortem report, only one injury was shown on the left parietal bone of the deceased. This suggested that the number of injury was one. It is, therefore, to be settled as to whether injury described in the medical
(1) P D 1979 SC (A J & K) 23 evidence could be caused by the alleged three successive blows. One aspect of the case was that infliction of one blow was proved by the injury. The other aspect was that in case the remaining two blows were also caused at the same seat, then next question would be as to what force was applied in all the blows, so as to cause injury found on the head of the deceased. Without going into minor details suffice it to say that even if we accept that one blow was responsible for the fatal injury, even then the liability cannot be reduced. Muhammad Tariq, admittedly was engaged in the encounter. In the circumstances, much depended upon his perceptibility at the time. Therefore, the conflict suggested by the learned counsel was not enough to drop prosecution's case as a whole.
The test of corroboration as laid down in the leading cases was to look for affirmative evidence. The standard of affirmative evidence was, of course, not the same as that of the evidence sought to be corroborated. Therefore, the consensus was that corr000rative evidence was not necessarily to be of same probative force. This view finds support in Mehtab Khan's case. The definition and scope of corroboration given in Mehtab Khan's case was affirmed in Niaz Muhammad's case.
10. The next objection relates to F. I. R. It was argued that F. I. R. Was recorded after the preliminary investigation, as such it was likely to be ignored. The F. I. R. Was lodged by Muhammad Tariq. It was shown to have been recorded in the hospital by Muhammad Sabir, A. S. I. In reply to a question in cross-examination, it was stated by Muhammad Tariq that on shifting Ghulam Sarwar to the hospital, he went to the Police Station and informed about the incident, then the police arrived in the hospital where his statement was recorded. The Investigating Officer did not corroborate Muhammad Tariq on the point of his visiting the Police Station. However, it was established that the F. I. R., Exh P. A. Was recorded in the hospital. Some variations made in the statement of the A. S. I., were visible but such variations, in our estimation, were not deemed fatal to the case of the prosecution. The A. S. I. Whose explanation was already called by the District Criminal Court, was shown slipping in his statement to give concession to the defence. That was either due to the inaptitude or motivation. Be as it may, the discrepancies occurring in the statement of A. S. I. Not being material, were not fatal to the case, in presence of other material convincing evidence. The F.
I. R. Was always used a corroborative piece of evidence. In this view of the matter, even if it was accepted for the sake of argument that the F.
1. R. Which was not a substantive piece of evidence, was prepared after the preliminaries, it would not affect the case of the prosecution so much so to record acquittal of the convict.
11. Lastly, we examine the objection relating to quantum of sentence awarded to Khalid Hussain convict. It was argued by the learned counsel that even if the liability of Khalid Hussain was accepted, it was not a case of culpable homicide amounting to murder warranting the sentence of Qisas. Before going into the facts of the case, we would like to explain the legal position. On enforcement of Shariat Penal Laws, the offence of murder was made punishable under section 5 of the Islamic Penal Laws Act. Section 4 of the Act prescribed the definition of murder, acknowledged in the Islamic Laws, and section 5 provided the punishment in the case of culpable homicide amounting to murder. Section 3 of the Act listed the punishments enforceable under the Act. These punishments were :-
(1) Death sentence;
(2) Tiadd;
(3) Qissas;
(4) Tazeer;
(5) Diyyat;
(6) Deprivation of inheritance;
(7) Imprisonment.-The imprisonment was further divided into :-
(a) rigorous imprisonment;
(b) simple imprisonment;
(c) solitary confinement. Section 26 of the Act postulated that notwithstanding anything contained in the Evidence Act, 1872 or any other law for the time being in force, in cases punishable with sentence of Hudood or Qisas, the Evidence of two adult male Muslims was a utast, whereas in cases of other punisnments, the evidence of two male Muslims or one adult male Muslim and two female witnesses was must. In the present case, Khalid Hussain was awarded sentence of Qisas on the basis of the testimony of Muhammad Tariq and Munir Hussain. The condition of two adult male Muslims laid down under section 26(1) was, therefore, found complete. Muhammad Tariq and Munir Hussain were found just witnesses by the District Qazi in his purgation. Therefore, both the conditions contained under section 26 were found proved. Section 24 of the Act provided that when a charge was proved against an accused, but the quantity of witnesses required under law was not available or standard or quality of evidence was not such as desired by the Islamic laws, the accused could not be visited with the punishment of Hadd or Qisas. It was further laid down that when the Court was satisfied that the sentence of Qisas or Hadd. Was not expedient, it was empowered to enforce one of the alternate punishments as prescribed under section 3 of the Act.
12. In the instant case, no conspiracy, pre-concert or pre-meditation was attributed to Khalid Hussain. The true count of the incident as disclosed by the prosecution, was that Ghulam Shabbir and Ghulain Sarwar were engaged in altercation which attracted Khalid Hussain, nephew of Ghulam Shabbir, in consequence of which, he rushed to the scene and gave blow to the head of the deceased. Muhammad Tariq stated that Ghulam Shabbif called Khalid Hussain but this part of his testimony was not supported by Munir Hussain. In absence of corroboration in this material particular, this Court was not satisfied to hold that Khalid Hussain arrived in response to the call of his uncle. It was evident from the position that there was no occasion for pre-concert or premeditation in the case. When Ghulam Shabbir and Ghulain Sarwar engaged in the quarrel, Khalid Hussain, in that. State of mind, attacked the deceased. According to Khawaja Ali Muhammad, learned counsel for the convict, it was a case of free fight, as such, was covered by exception (4) of section 30J, A. P. C. Exception (4) of section 300, A. P. C. Postulated that culpable homicide was not murder if it was committed without pre-meditation, in a sudden tight, 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. The essentials of exceptions are counted as causing death of deceased :-
(i) without premeditation;
(ii) in a sudden fight;
(iii) in the heat of passion;
(iv) upon a sudden quarrel; and
(v) without offender's having taken undue advantage or acting in a cruel or unusual manner.
' In the present case, the first four essentials were squarely applicable. So far as the last ingredient was concerned, it was to be noticed that in order to determine the liability of having taken undue advantage or acting in a cruel manner by the offender, we have to, again, revert to the test enforceable in the case. It was an accepted rule that to find out the intention or knowledge of the offender, the only safe test which could be adhered to, was to look at attending circumstances of the case, such as time and place of incident, nature of weapon used, the force with which it was wielded, the seat of injury and the result which ensued. In a case where the accused gave forceful blow with stick to the head of the deceased, it was considered that the assailant was presumed to have known that injury would cause death. In the present case, the weapon used was a batt6n, the seat of the injury and the result which ensued from such injury, at least, we cannot escape the conclusion that Khalid Hussain who was responsible for the infliction of injury was presumed to know the ensuing conclusion. Thus, he could not be given the benefit of not acting in a cruel manner or not to have taken undue advantage of his position. In our estimation, the offence of culpable homicide amounting to murder was established against Khalid Hussain but keeping in view the detailed circumstances already mentioned elszwhere, including the manner of incident, absence of motivation and premeditation, persuades us to alter the sentence of `Qissas, into the sentence of `Diyyat'. It is, therefore, ordered that Kbalid Hussain who is found guilty of murder of Ghulam Sarwar, is visited with the sentence of `Diyyat', as contemplated under section '3 of the Act.
The convict shall pay `Diyyat' to the tune of 2,916 to/us and 3 masha silver, or its current price amounting to Rs, 1,25,398.75, to the legal heirs of Ghulam Sarwar deceased whose list is already placed on the record. He shall remain in jail till the payment of amount of `Diyyat'.
13. The learned Additional Advocate-General and the learned counsel for the complainant failed to assign any reason for converting acquittal of Ghulam Sarwar and Muhammad Yusuf into conviction. This Court has always adhered to the rule that the finding of the trial- Court regarding acquittal was not to be interfered unless it was found perverse, foolish and resulting in miscarriage of justice. In the instant case, this Court was not shown that acquittal of Ghulam Shabbir and Muhammad Yusuf, in any manner, was found perverse. The appeal filed by Muhammad Tariq, there, fore, fails. The file of Khalid Hussain and reference made by the District Criminal Court, are disposed of accordingly.