' This order will dispose of both the above captioned appeals which have been addressed against the order passed by the Azad Jammu and Kashmir Shariat Court on 30-7-1985. Muhammad Farooq, appellant (in Appeal No, 12 of 1985), has challenged his conviction under section 302, A. P. C.
For which he stands convicted and sentenced to life imprisonment ; while the State has moved the appeal (Appeal No, 13 of 1985) for enhancement of the sentence of Muhammad Farooq from life to that of `Qissas'.
2. It may be stated here that this case saw three rounds before the High Court/Shariat Court. In the first round, the District Criminal Court convicted Muhammad Farooq, appellant, under section 5 of the Islamic Penal Laws Enforcement Act, 1974, read with section 302, A. P. C., and sentenced him to death. The Shariat Court, on appeal, felt advised to set aside the above conviction and sentence and remanded the case back to the trial Court to decide the same afresh after conducting purgation of the witnesses. The trial Court again convicted the appellant under section 5 of the Islamic Penal Laws Enforcement Act, 1974, and sentenced him to `Qissas' with the direction that Muhammad Farooq shall be put to death by severing his neck from the body with sword. But again on appeal the Shariat Court remanded the case to the trial Court after setting aside the conviction and sentence awarded to Muhammad Farooq on the ground that one of the eye-witnesses, namely, Mahmood Hussain, was found `ghair aadil' by the District Qazi and that no question was put to the appellant in his examination under section 342, Cr. P. C. With regard to the seizer of the blood-stained clothes from him. It was also required of the trial Court to see as to whether the brother of the deceased could be a competent witness under the Muslim Law and also to confront the appellant regarding the seizer of bloodstained clothes and then decide the case afresh after giving Muhammad Farooq, appellant, an opportunity for leading his evidence.
3. , The District Criminal Court, thereafter, decided the case afresh on 4-12-1983. Both the learned members of the Court were one on the point that the appellant is guilty of the offence of murder but they showed disagreement with regard to the sentence to be awarded to him. The learned Sessions Judge sentenced him to life imprisonment under section 24 read with section 3 of the Islamic Penal Laws (Enforcement) Act, 1974, and also gave him the benefit of section 382 (b), Cr. P.
C. While the District Qazi, the other learned member of the trial Court, imposed upon him the sentence of `Diyyat' to the tune of Rs, 1,45,800 under the aforesaid sections of the Islamic Penal Laws (Enforcement) Act, 1974. It was ordered that the amount shall be paid to the heirs of the deceased in accordance to their shares under the Muslim Law.
4. This difference of opinion between the members of the District Criminal Court on the question of sentence necessitated a reference before the Shariat Court for the decision of the case.
Muhammad Farooq also moved an appeal against his conviction by the trial Court while the State also moved an appeal for enhancement of sentence.
' The learned Judge in the Shariat Court dismissed both the appeals. Hence these appeals to impugne the said judgment of the Sharial Court.
5. The facts giving rise to the case as stated in the judgment of the Shariat Court are : 'S. H. O. Police Station, Mirpur put up a challan against Muhammad Farooq, appellant, in Appeal No, 9 of 1983 for the offence under section 5 of the Islamic Penal Laws Enforcement Aet, 1974, read with section 302, A. P. C. In the District Criminal Court Mirpur for the murder of Muhammad Razzaq, deceased.
' The case of the prosecution was that Mst. Suryia Begum, sister of the appellant was married to one Mehraj Din who is real brother of the complainant and Muhammad Razzaq, deceased, but about four months prior to the occurrence was divorced by her husband. Two children namely, Rafhet Begum, aged 7/8 years and Nasar Mehmood, aged about three years, born out of the wed- lock of the above named spouses, were, however, handed over to the custody of their father Mehraj Din in terms of mutual settlement reduced into writing and arrived at between the parties at the time of affecting the said divorce. Mehraj Din, on his return to England for earning his livelihood, left his above children in the custody of his father and brothers, Muhammad Iqbal, complainant and Muhammad. Razzaq, deceased who started living with them. On 12-11-1973, the children were found missing from the house upon which the complainant and Muhammad Razzaq, deceased, undertook a search for them during the course of which they were informed by Muhammad Din, P.
W. That the children had gone to the house of Nizam Din, father of the appellant, as well as of their mother t 1st. Suryia Begum, divorcee. This information led them to the house of Nizam Din where Muhammad Iqbal, complainant, called out the children who came out of the said house and accompanied them to their house. The complainant and the deceased alongwith the children had hardly covered a few yards of distance while on their way to their house, the appellant came out , of his house abusing them and shouting that he would not allow them to take away the children.
He then pursued them and inflicted a dagger blow beneath armpit of Muhammad Razzaq, deceased on receipt of which he fell down on the ground and expired. The appellant, thereafter, also attacked Muhammad lqbal, complainant, who escaped by running away after hurling two to three stones at him.
6. I have minutely scrutinized the evidence. The ocular evidence which rings true coupled with the recoveries of the crime weapon and the blood-stained earth from the spot prove beyond any reasonable doubt that Muhammad Farooq had murdered Muhammad Razzaq, deceased, by stabbing him. This finding is based on critical survey of evidence and needs no interference. It may be stated here that Muhammad Farooq, A after, serving the sentence of life imprisonment has since been released from the jail. Ch. Muhammad Taj, the learned counsel for Muhammad Farooq, frankly conceded that the finding of guilt against Muhammad Farooq is based on cogent evidence.
The appeal, therefore, moved by Muhammad Farooq for his acquittal or still lesser sentence stands dismissed.
7. So far as the appeal of the State for enhancement of the sentence is concerned, I am of the considered view that it also does not merit any consideration for the following reasons
(a) 1 am convinced that the murder of Muhammad Razzaq, deceased, in the circumstances, appears to have been committed by Muhammad Farooq all of a sudden and at the spur of the moment. It is the case of the prosecution itself that the complainant and the deceased went to the house of the appellant in search of their missing nephew and niece and after calling them out when they were on their way back to their home the appellant came out of his house and stabbed the deceased. This circumstance goes a long way to indicate that the murder of Muhammad Razzaq, deceased, was not pre-arranged and pre-meditated but was committed at the spur of the moment under the influence of an emotional state of mind by the appellant who had probably ill felt the act of the deceased and the complainant of calling out and taking away the children from his house where they had gone to meet their mother who was the sister of the appellant. As the human nature is the aforesaid act of the complainant and the deceased of taking away the children from their mother and his sister might have provoked the appellant and arose his emotions although the same was not such as providing him any legal justification to cause the fatal stab wound to the deceased. But, at the same time, this circumstance cannot be ignored while considering the question of sentence to be awarded to the appellant for his criminal act of causing the death of Muhammad Razzaq, deceased by stabbing.
(b) There is yet another circumstance which also weighs against awarding the sentence of `Qissas' to the appellant and calls for lesser sentence. The presence of minor and simple injuries such as abrasions on the person of the appellant and the fact of the clothes recovered from his body soon after the occurrence having been found torn indicate that there was probably some grappling between the appellant and the deceased before the appellant caused the stab wound to the deceased. This fact also militates against the imposition of sentence of 'Qissas' on the appellant.
' In view of the circumstances enumerated above, I am of the view that the learned Shariat Court was very much justified to hold that extenuating n circumstances exist in this case to call for life imprisonment instead of sentence of death. I am also of the view that in view of the age of Muhammad Farooq benefit of section 382 (b) of the Cr. P. C. Was rightly given by the Sessions Judge and the Shariat Court very rightly did not interfere with this finding.
(c) It should be remembered that the Supreme Court does not sit as the Court of criminal appeal and before interference by the Court in a matter of quantum of sentence is justified, it is to be established that there has been in awarding the lesser sentence of life imprisonment instead of normal sentence of "Qassas", something so irregular or so outrageous as to shock the very base of justice. This case only takes place if substantial and grave injustice is shown to have been done by the Court below by not following well set principle governing quantum of sentence.1 Nothing of the sort is evidenced in this case. The Shariat Court has exercised the discretion on well-founded grounds referred to above and the argument advanced by the learned Advocate-General which entirely turns round reappraisal of the evidence do not furnish a legal ground to interfere with the discretion. Reappraisal of the evidence unless the appreciation made by the lower Court does not stand vitiated on some grave illegality is beyond the province of this Court.
' For the above stated reasons both the appeals stand disallowed.