' The review petition is addressed against the order of this Court [kissed on June 8, 1988, whereby the sentence of `Qisas' awarded to non-petitioner No,2 was converted into rigorous imprisonment for 10 years.
2. On August 2, 1977, at 9-00 a.m. a report was lodged at Police Post Kulian by Muhammad Azeem containing the allegation that at 9-00 a.m. In the morning, Muhammad Farid, Muhammad Bashir and Muhammad Seemab, sons of Rafique, eimaged his crop by their cattle trespass. The aforesaid persons were warned by him and Scemab Khan his son, for causing the mischief. At 1-30 afternoon Muhammad Zareen, another son of the informant, apprised him of the consipracy being hatched by Muhammad Sharif non-petitioner No,2, Muhammad Rafique, Muhammad Nazir, Muhammad Farid, Muhammad Aziz, Muhammad Nawaz and Gul Majid to take revenge of the incident of morning. Doctor Farman Ali and Maulvi Muhammad Sadiq were also ascribed their role in conspiracy with the aforesaid persons. It was alleged further that Seemab Khan, Muhammad Salim brothers and Babu Sher Afzal deceased were stocking the sand on the river bank on the day of incident. At 3-30 p.m. When the complainant arrived near the Forest Nursery Chattar Kalass, he noticed the accused persons, including Muhammad Sharif non-petitioner No,2, going towards the river hank where Sher Afzal, Scemab and Slim were engaged in stocking the sand. The accused were armed. Muhammad Sharif, non-petitioner fired with a revolver on Sher Afzal which hit him in abdomen. The second fire was aimed at Muhammad Salim but it hit Rahim Shah, a nearby stranger tending his cattle in the field. It hit his left elbow. Muhammad Nazir, Muhammad Rafique and Farid the other accused also fired with their .12 bore guns in air. Other accused armed with Lathis opened attack on Seemab and Slim, On accomplishing their objective the accused left for Kulian Bazar. Complainant, Seemab his son and other eye-witnesses who happened to the present on the scene, followed the accused party, whereas Muhammad Salim stayed with Sher Afzal who was lying on the spot in injured condition. The matter was reported to the local police at Kulian Police Post. After some interval both the parties clashed again in Kulian Bazar where Raja Abdul Qayyum of complainant party was injured. On the other side Muhammad Farid, Gut Majid and Muhammad Rafique received injuries at the hand of Seemab.
3. The version of defence was quite contrary to the aforesaid version of the prosecution. In counter- version it was claimed that Muhammad Sharif, Muhammad Farid his brother and another Muhammad Farid his nephew were going home from Kulian Bazar. They had covered hardly distance of one furlong when they were confronted by their opponents consisting of Muhammad Azim, Qayyum Khan, Master Majid Khan, Yaqub Khan, Javid lqbal, Muhammad Salim, Muhammad Seemab, Mushtaq Ahmed, Muhammad Zarin. Sher Afzal deceased alongwith number of other persons. They were armed with guns and Lathis. The accused on apprehending of danger turned back and fled towards Kulian Bazar. Sher Afzal deceased, Salim and Seemab overtook and stopped them when Javid Iqbal, a member of complainant party, fired revolver shot on accused which by mistake hit Sher Afzal. On this, the accused manoeuvred their escape by entering the shop of Muhammad Rafique. Nevertheless, they were chased and attacked in the shop resulting in infliction of injuries on Muhammad Farid, Rafique and Gul Majid on one side and the injured persons of the complainant party on the other side. It was further alleged that merchandise of the shop of Muhammad Rafique was thrown out and destroyed.
4. On trial Muhammad Sharif, non-petitioner No,2 was found guilty of murder and was awarded the sentence of `Qisas' by the District Criminal Court; other accused 7 in number were acquitted. The learned Shariat Court upheld the finding of the District Criminal Court and dismissed the appeals of the defense and the prosecution. In appeal before this Court the sentence of `Qisas' was converted into imprisonment for a period of 10 years. The judgment of this Court passed on June 8, 1988, is sought to be reviewed on the following grounds:- (i) for that the non-petitioner No,2 Muhammad Sharif was found guilty by the trial Court as well as by the High Court and was awarded sentence of Qisas as provided by the Islami Tazeerati Act. The sentence of Qisas was recorded by the. Court below on the basis of evidence produced by the prosecution as such there were concurrent judgments of the Courts below on the point of sentence awarded to the non-petitioner No,2 and this Humble Court escaped to consider this aspect of the case and judgment needs review to this extent;
(ii) for that normally this Humble Court avoids to disturb the finding of the Coutts below on the ground of appreciation of the evidence. This aspect of the case in hand needs reconsideration and review to meet the ends of justice;
(iii) for that this Hon'ble Court also reached at this conclusion that Sher Afzal was shot dead by the non-petitioner but in the Islamic Penal Laws of Azad Jammu and Kashmir there is no provision to deal an accused of murder leniently if it is proved that accused is guilty of the offence as alleged.
In the present case non-petitioner was neither injured nor he was apprehending any danger to his life in the hand of deceased Sher Afzal. This aspect of the case is also supported by the evidence on record;
(iv) for that this Hon'ble Court also is of the opinion that the non-petitioner No,2 exceeded the right of private defence. In the circumstances this was a fit case for sentence of Qisas; and
(v) for that the Islamic Law provides provision to test the truthfulness of the witnesses by purgation and it was done in the present case and they were `Adir in the circumstances without any other proof on record the testimony of prosecution witnesses thus to be relied upon as was done by the Courts below.
5. Under. Order XLVI, Rule 1 of the Supreme Court Rules, 1978, it is postulated that subject to law and practice of the Court, the Court may review its judgment or order in criminal proceedings on the ground of error apparent on the face of the record. The authority of review conferred on this Court necessarily is subject to law and practice of the Court. It is further described that the power of review can be invoked on the ground of an error apparent on the face of the record.
6. It is the celebrated rule of review that the party seeking review of an order of the Court has to satisfy that the impugned order or judgment suffered from an error on the face of the record. In other words the scope of review confines to the error or mistake arising out of the judgment or order of the Court. The scope of review is, therefore, much different and restricted than the scope of appeal. It may be always welcome to review an order or judgment recorded earlier because in our estimation, the fundamental function and Nobel cause of B administration of justice is to advance justice to the aggrieved persons. In order to achieve the intended object of the establishment of law Courts, a Judge should not hesitate in reviewing his own order or judgment to rectify the mistake or error. The practice of this Court has been consistent to aforesaid view and it is adhered to strictly to advance the cause of dispensation of justice. However, it may be described that it is well accepted that no review lies on the point office quantum of sentence. In Sabir Husain alias Tonchi v. The State Criminal Review Petition No, 2/MR of 1983 it was observed by this Court:- "In order that an error may be a ground for review, it must be one which is apparent on the face of the record, i,e,, it must be so manifest and so clear that to keep such an error on the record may perpetuate visible injustice. Error may be of a fact or law but it must, however, be an error which is self-evident and does not require any elaborate discussion.
' Besides, it is also to be borne in mind that as finality attaches to the judgment delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of rehearing of the whole case nor it is an appeal against the judgment under review. It is, therefore, not permissible to embark upon the reiteration of the same contentions (as is done in the present case) as were advanced at the time of hearing of the appeal; but were considered and repelled in the judgment under review. It needs also to be noted that it is well-settled principle of law that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence if a legal sentence has been imposed or upheld after due consideration of all the relevant circumstances."
7. In present case the first objection is addressed to uphold the concurrent findings of the trial Court and the learned Shariat Court in passing the sentence of `Qisas', on the non-petitioner No,2.
In my estimation this objection is untenable as it is primarily an objection liable to be taken in an appeal and not in a review petition. Besides, it is in conflict with the celebrated rule of law which postulates that once the concurrent findings of facts are found resting on misreading, non-reading and misconstruing of evidence resulting in injustice to either party, this Court being the apex of judiciary, is enjoined upon to redeem the injustice. This is so as an injustice by virtue of appreciation of evidence despite resting on concurrent findings of subordinate Courts, cannot be permitted to perpetuate.
8. The second objection pertains to appreciation of evidence. This point again is beyond the scope of review. Only that part of evidence is to be reconsidered which is found to have escaped its appreciation and resulted in mistake or error on the face of the record. The petition for review does not contain or point out any part of such evidence on record leading to a mistaken or erroneous conclusion of this Court. Therefore, the objection is turned down.
9. The next objection pertains to interpretation of provisions of Islamic Penal Laws Act. It was claimed that once the liability for infliction of fatal injury to deceased was fixed on Muhammad Sharif non-petitioner, he was not entitled to any other sentence less than `spisas'. The plain answer to the objection is that section 4 of the Islamic Penal Laws Act which defines the offence of culpable homicide amounting to murder, is analogous to the provisions of section 300 of the Penal Code. It contains all the explanations and exceptions which are enshrined in section 300, P.C. Thus, sentence provided for murder committed in a free fight is to be fixed, in the light of those provisions. Moreover, section 24 of Islamic Penal Laws Act, postulates that when the Court arrives at the conclusion that an offence covered by section 4 is proved but the requisite number of witnesses is not available or the witnesses arc not found sentence of Oisas was not permissible. In such situation the Court was empowered to impose either of the sentences listed under section 3 of the Act. An answer to the objection has been fairly dealt with in para. 24 of the impugned order which is reproduced:- "Under section 24 of the Islamic Penal Laws Act, it is postulated that when the Court arrives at the conclusion that an offence of murder is proved against the accused but the requisite number of witnesses is not available or that the witnesses are not found ' on account of which the accused cannot be awarded the sentences of `Qisas' or that in view of the circumstances of the case, the sentence of 'Oisas' cannot be given, the Court is empowered to convict the accused and award him either of the sentence listed under section 3 of the Act ' In the present case, the circumstances listed above lead to the conclusion that it is not a case of sentence of Oisas'. The sentence of Oisas' awarded by the trial Court and confirmed by the Shariat Court is, therefore, set aside. The sentence of 10 years' R.I. Is deemed sufficient to meet the ends of justice. Here it is necessary to state that the convict has been in prison since his arrest. He is in death cell since his conviction passed by the trial Court. He is, therefore, considered entitled to the benefit of section 382(b), Cr.P C. The period of imprisonment during trial and appeals shall be counted towards his sentence. The appeal of the convict is disposed of accordingly."
10. Mr. Rafique Mahmood, argued that this Court arrid at the conclusion that Muhammad Sharif, non-petitioner exceeded the right of private defence. Therefore, sentence of Oisas' was appropriate in the case. The objection is ill-founded as the impugned order is not shown to contain such an observation. Nevertheless the justification of converting the sentence of Oisas' into imprisonment of 10 years is listed in para. 23 of the impugned order. The same is reproduced:- "On review of the total circumstances of the case it is safe to hold that the case of the appellant Muhammad Sharif does not warrant sentence of Oisas'. The reasons are: ' Under the Islamic Penal Laws Act, it -is enjoined that an offence of murder shall be punishable with the sentence of Oisas' where it is supported by the evidence of two male adult Muslim witnesses. It is further postulated that the Muslim male eye-witnesses must be Add' as found so by the Court through This is a condition precedent. In the present case was not conducted by the Court as directed by this Court in previous decisions, but it was undertaken only by District Qazi. It is, therefore, de active. Moreover, the record placed before this Court shows that 'as made in a mechanical fashion. The day of by Maihvi Hadayat Ullah precedes the date of dispatch of parity Ulars of the eye-witnesses for the purpose. This suggests that no ' was made in strict compliance of law. The report of is incomplete as it does not contain sufficient evidence so as to satisfy that the qualifications, relating to the character of eye-witnesses, fulfilled the condition of an 'Adil' male Muslim witness. Therefore the flaw of law in ' ' is there. In absence of as described earlier, the sentence of 'Oisas' is not permissible;
(ii) that the trial Court as well as the Shariat Court over-looked to determine the place and manner of incident. Besides, both the Courts disbelieved the eye-witnesses, as such acquitted seven out of eight accused. This has been done despite the fact that four of the eye-witnesses were admittedly injured in the incident. As the responsibility of those injuries was not determined, seven accused were set free. This suggests that the -story of prosecution relating to the place, manner and origin of the occurrence was disbelieved. It is cardinal principle of criminal jurisprudence that when the story of prosecution relating to origin of the light, manner and number of accused is not plausible, the Court has to scrutinize the facts of the case to arrive at its own conclusion. In this view of the matter when the origin of the fight, the manner of incident and place of occurrence as suggested by the prosecution is not considered free from doubt, we have to advert to the defense version in addition to other circumstances on the record. On this test of the proposition, we have come to the conclusion that the occurrence took place on the road-side where both the parties came across and clashed openly. The number of injured persons on each side further suggests that on account of their past enmity the rival parties were looking for an appropriate moment to settle the dispute.
On the day of occurrence they availed the opportunity by inflicting injuries on each other. It is, therefore, a case of free fight; and
(iii) that it is accepted by the prosecution that Muhammad Sharif, accused had no motive to kill Sher Altal. No enmity between the deceased and accused is shown. The incident of murder, therefore, appears to be without any motive. Therefore, in all circumstances, Muhammad Sharif had no cause to kill Sher Afzal to avenge his enmity."
11. The answer of the last objection also appears in para. 23(i) reproduced above.
12. On going through the grounds necessitating review of the impugned order, I have come to the conclusion that no mistake or error on the face of record has been pointed out to invoke the jurisdiction of the review. All the points as a matter of fact are of the nature which were argued in appeal in this Court. However, complete answers to these points have been already analyzed in the impugned order. Therefore, I find no reason to reopen the whole case to appreciate the aforesaid points.
' There is no force in the review petition, it is, therefore, dismissed. .