1. ' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court dated 11-10-1992, whereby the appeal filed by the appellant, herein, was partly accepted and conviction and sentence under section 307, A.P.C. Were set aside, whereas accepting the revision petition filed by Mst. Zareena Begum, complainant, the amount of Diyyat' and `Hakoomat-e-Adil' which was reduced on appeal by the District Criminal Court to 1/2 was enhanced to full amount as was determined by the Tehsil Criminal Court.
2. ' The brief facts giving rise to the present appeal are that a case was registered against the appellant, herein, at Police Station Barnala on 7-12-1986. Shabir Ahmad, A.S.I., who happened to be on round of the 'Ilaqa' came to know about the incident. He proceeded to the spot and recorded the statement of Mst. Zareena Begum, complainant, marked as Exh.PA./1; he sent the same to police station through Constable Muhammad Akram on which Muhammad Siddique, Moharrir Head Constable, registered a case against accused-appellant under section 15 of the Islamic Penal Laws Act and section 307, A.P.C. According to the statement recorded by Shabir Ahmad, A.S.I., marked as Exh.PA./1, as F.I.R. It is alleged by Mst. Zareena Begum that on 7-12-1986, at about 2-00 p.m., she alongwith the real sister of the accused-appellant was busy in plastering the roof of the house when Muhammad Aslam, who had gone out for tending the goats, came back and asked her to come down as he had to talk with her about an important matter. Consequently, she came down, washed her hands and went to the accused appellant who took her inside the cattle-shed.
3. He made her fall on the ground, tied her legs with a sheet and told her that he was going to kill her.
4. Thereafter, he put one foot on her chest and pressed her against the floor; then cut her right arm with hatchet which separated and fell away; cut her left arm which remained wealdy attached with the body and dangled from the shoulder and cut her nose from its root. She raised hue and cry which attracted Yaqeen All and Sardar Khan to the spot who also saw the occurrence. It is also alleged in the F.I.R. That she had strained relations with the accused appellant because the appellant used to quarrel with the complainant accusing her that she had destroyed the ornaments which the appellant had given to her. The Tehsil Criminal Court after the trial convicted and sentenced the accused-appellant under section 15 of the Islamic Penal Laws Act to `Diyyar for cutting of the nose and right arm while awarded Hakoomat-e-Adal for partly cutting her left arm making it unusable. The total amount of `Diyyar amount and Hakoomat-e-Adal came to Rs,3,32,720; he was also convicted and sentenced to 7 years' rigorous imprisonment and a fine of Rs,1,000 under section 307, A.P.C. The appeal to the District Criminal Court was partly accepted and the amount of `Diyyar and "Hakoomat-e-Adal" was reduced to 1/2 on the ground that in case of a female the amount would be 1/2 of the amount to which a male would be entitled under law.
5. Consequently the appellant went up in appeal before the Shariat Court while Mst. Zareena Begum, complainant, filed an appeal seeking enhancement of the sentence. The Shariat Court partly accepted the appeal filed by the appellant, herein and set aside the conviction under section 307, A.P.C. On the ground that the accused-appellant cannot be convicted under section 15 of the Islamic Penal Laws Act and section 307, A.P.C. Both. However, the appeal filed by Mst. Zareena Begum was also partly accepted and the amount of `Diyyar and 'Hakoomat-e-Adal' which was reduced to 1/2 by the District Criminal Court was enhanced to the amount which was awarded by the Tehsil Criminal Court.
6. ' We have heard the arguments and perused the record. It has been contended by Ch. Ali Muhammad, the learned counsel for the appellant that the Courts below have committed an error in appreciating the evidence. He has maintained that according to Muhammad Siddique, Moharrir Head Constable, the father of the appellant also visited the police station and lodged F.I.R. Before the statement Exh.PA./1 was recorded by Shabir Ahmad, A.S.I., and sent to the police station but the said report made by the father of the appellant was not recorded. Thus, it was contended that the statement of Zareena, Exh.P.A./1 recorded by Shabir Ahmad, A.S.I., cannot be treated as F.I.R. It is a statement recorded by the police under section 161, Cr.P.C., and is inadmissible in evidence. The learned counsel has also argued that Yaqeen All and Sardar Khan, the two eye-witnesses named in the F.I.R. Do not support the prosecution story and were declared hostile by the prosecution. The learned counsel has further argued that Mst. Zareena Begum intended to get divorce from the appellant and thus she falsely implicated the appellant in the case. According to the learned counsel for the appellant in fact some dacoits inflicted injuries to the complainant and took away the ornaments but she used the incident as a vehicle for forcing the appellant to get divorce from him. The learned counsel has also argued that from the statement of Yaqeen Ali and Sardar Khan, P.Ws. It transpires that the Investigating Officer exerted pressure on them to give a false statement against the appellant but they did not oblige him. He has particularly referred to the statement of Yaqeen Ali, P.W., who has stated that he was prepared to make statement on Holy Quar'an that he did not see the accused-appellant when he and Sardar Khan reached the spot. In alternative, the learned counsel for the appellant has submitted that as the trial Court has illegally convicted and sentenced the accused-appellant to seven years' R.I. Under section 307, A.P.C. Which he has already undergone, the sentences of `Diyyar and `Hakoomat-e-Adal' may be set aside; because double punishment would be too excessive.
7. ' In reply the learned counsel for the complainant, Ch. Lal Hussain, controverted the arguments advanced by the learned counsel for the appellant. He has aruged that it is improbable that a wife would substitute her husband for the dacoits, specially so when she was living with her husband as wife at the relevant time. He has contended that Yaqeen Ali and Sardar Khan, P.Ws., were declared hostile and cross-examined by the prosecution. But all the same they corroborate the statement of Mst. Zareena Begum in material particulars, i,e., that when they reached the spot they saw right arm of Mst. Zareena Begum had been totally cut away and it separated from the body; her nose was also cut from the root; and that her left arm had been partly cut and was dangling down the shoulder. They also state that the complainant was profusely bleeding and was also weeping. The learned counsel for the complainant has further submitted that the said witnesses only suppressed the fact of seeing the accused-appellant committing offence or running away from the spot. The learned counsel for the complainant has submitted that the eye-witnesses are neighbours of the accused-appellant while Mst. Zareena Begum hails from Gujrat, Pakistan. It was for this reason that they were prevailed upon by the accused and gave concessions to him at the trial. So far as F.I.R. Is concerned, it has been argued that according to Muhammad Siddique, Moharrir Head Constable, the father of the appellant, came to the police station and informed him that the accused had killed Mst. Zareena Begum but he did not record his statement and referred him to Abdul Rashid, A.S.I., who was on round of the `Alaqa'. The learned counsel stated that even the father of the accused stated at police station that it was the appellant who had committed the offence. The learned counsel for the complainant submitted that the father of the accused-appellant could be produced as defence witness to rebut the prosecution story but it was not done; he has also submitted that the sister of the appellant, who was present in the house at the relevant time, has also been not produced in defence to support its version. So far as the question of the quantum of punishment is concerned, the learned counsel has submitted that offence committed by the appellant is heinous, atrocious and brutal and does not call for any leniency. The Court is competent to award any number of sentences envisaged under the relevant provisions of Islamic Penal Laws Act and it is not legally correct to suggest that as the accused appellant has undergone the imprisonment under section 307, A.P.C., the sentences of `Diyyar and 'Hakoomat-e- Adal' would be excessive. The learned counsel for the complainant has cited following authorities in support of his contention:-- ' In case reported as Shaukat v. The State 1992 SCR 156, it was held by this Court that there is no distinction in punishment of `Diyyar in case of male or female under section 2(6) of the Islamic Penal Laws Act. It was further observed that the Court may award one or more punishments as has been provided under section 3 of the Islamic Penal Laws Act. Identical view has been taken in case reported as Muhammad Khalil v. The State 1992 SCR 249, wherein it was held that any number of punishments can be awarded to an accused person under section 3 of the Islamic Penal Laws Act.
8. ' In case reported as State v. Muhammad Saeed Khan PLD 1979 Azad J&K 28, it was held that evidence of an hostile witness may not be rejected in toto and can be partly relied upon.
9. ' In Muhammad Ismail v. The State 1985 P Cr. L J 713, it has been opined that it is wrong to assume that the evidence of hostile witness has to be discarded wholly. It was held that the testimony of hostile witness has to be considered cautiously and it is for the Court to judge as to which of the tones of the hostile witness is to be relied upon.
10. We have given our due consideration to the arguments advanced at the bar. So far as the objection regarding F.I.R. Is concerned, it may be observed that F.I.R. Is a document the primary object of which is to put the A investigating machinery in motion. According to Muhammad Siddique, Moharrir Head Constable. No F.I.R. Was recorded on the information of the father of the appellant. Thus, in fact there is no other F.I.R. In the case, but Exh.P.A./1, the statement of Mst.
11. Zareena recorded by Shabbir Ahmad, A.S.I., on which the case was registered is an F.I.R. Even if it is assumed for the sake of argument that Exh.P.A./1 cannot be treated as an F.I.R., that would not make any difference because according to Muhammad Siddique, Moharrir Dead Constable, the father of the accused-appellant had also named the accused as a culprit. If the statement of the Head Constable, Muhammad Siddique, on the point of F.I.R. Was not accepted to be correct by defence that could be rebutted by producing the father of the accused or his sister as defence witness.
12. ' Coming to the merits of the case it may be stated that all the three Courts below have held the statement of Mst. Zareena Begum as reliable. We have closely gone through her statement and find no reason to differ with the view taken by the Courts below. Although Yaqeen Ali and Sardar Khan, the witnesses named in the F.I.R., denied to have seen the accused-appellant on the spot or running away from the spot yet they corroborate the statement of Mst. Zareena Begum in material particulars of the prosecution story. So much so that Yaqeen Ali, P.W., has admitted in cross- examination that hands and nose of the complainant were cut by the accused-appellant due to the dispute relating to the ornaments. He had to admit the said facts when he was subjected to searching cross-examination by the learned Prosecutor. The perusal of the record reveals that Yaqeen Ali and Sardar Khan P.Ws. Have been speaking in different tones at different stages. They also sworn contradictory affidavits at different times, some of which are on the record. Thus, it can be safely said that they suppressed some facts but all the same they corroborate the prosecution story on material features. So far as defence version that in fact offence was committed by some decoits is concerned, this is not only preposterous but is ridiculous. The incident has taken place at 2-00 p.m. In the daylight in populated village. Thus, it cannot be believed that dacoits choose to commit the offence during the day at the risk of being identified or caught during the incident. The accused-appellant has also produced witnesses in defence to support his version that the offence has been committed by some decoits. The Courts below have rightly rejected this testimony of the defence witnesses on the point. Even otherwise, it does not appeal to reason that the complainant implicated the appellant falsely in the case merely so as to get divorce from the appellant. The people may rope in innocent persons but the substitution for real culprit is a rare phenomenon.
13. Thus, we have no doubt that the prosecution has proved the case against the appellant, herein, beyond reasonable doubt.
14. ' Coming to the question of sentence, we have not only heard the counsel for the parties but also heard some senior members of the Bar on the question of sentence which can be legally awarded in this case.
15. ' It has been argued by Ch. Ali Muhammad, the learned counsel for the appellant, that the trial Court also convicted and sentenced the accused-appellant to 7 years' rigorous imprisonment under section 307, A.P.C., but the same has been set aside by the Shariat Court as being violative of law. Thus, if the appellant is not acquitted, it would be in the interest of justice if the senence of imprisonment already undergone is held adequate and the sentence of payment of Diyyar awarded by the Shariat Court is set at naught. The learned counsel has argued that in section 2(6) of the Islamic Penal Laws Act, 1974 (hereinafter shall be called the Act), the word 'URDU TEXT' and not 'URDU TEXT' has been used and, as such, separate punishments for cutting or rendering more than one limbs usless are not legally warranted; only `Diyyar amount envisaged by the Act can be awarded. The learned counsel has argued that under section 15 of the Act only one sentence out of `Qissas', `Diyyar and 'Hakoomat-e-Adal' can be awarded. Thus, as the accused-appellant was also convicted and sentenced by the trial Court under section 307, A.P.C., the sentence of `Diyyar and 'Hakoomat-e-Adal' under section 3 read with section 24 of the Act could not be legally awarded, specially so when the appellant had already undergone a part of his sentence under section 307, A.P.C. The learned counsel' has also maintained that it cannot be said that more than one sentences envisaged under section 3 of the Act are permissible under law; because in case the nature of the evidence envisaged under section l6 of the Act is available, only one of the sentences envisaged under section 15 of the Act can be awarded but in case the requirements of section 26 of the Act are not fulfilled, it cannot be said that more than one sentences can be awarded under section 3 of the Act. It is paradoxical to say that although more than one sentences cannot be awarded under section 15 of the Act, yet the same can be done under section 3 read with section 24 of the Act.
16. ' Mr. Sardar Khan, Advocate-General, and Ch. Lal Hussain, Advocate for the complainant, have controverted the arguments advanced by the learned counsel for the appellant and have contended that it is clearly laid down in section 24 of the Act that if the contingencies stipulated under section 24 of the Act are not satisfied, the Court can award any number of the sentences to an accused person under section 3 of the Act. It has also been argued on behalf of the respondent that the conviction and sentence under section 307, A.P.C., has been found illegal by the Shariat Court and has been set aside, therefore, the argument that as the appellant has undergone a part of his sentence under section 307, A.P.C., he could not be convicted under the provisions of the Act or he should be dealt with leniently in the matter of sentence, is a prevarication and is not tenable.
17. It has been further argued that it is correct that only one of the sentences envisaged under section 15 of the Act can be awarded but all the same if the Court resorts to section 3 read with section 24 of .The Act, there is no embargo on the powers of the Court to award more than one sentences to an accused person. It has also been maintained on behalf of the respondents that the sentence of `Hakoomat-e-Adal' has not been enumerated under section 3 of the Act as one of the sentences which can be awarded in case of `Zarar' under section 3 of the Act but all the same `Tazeer' has been also envisaged as one of the sentences which can be awarded under section 3 of the Act.
18. The learned counsel for the respondents has argued that the word Tazeer' has been defined under section 2(1) of the Act to mean a sentence which is not sentence of 'Hadd' and the same is in the discretion of the Court whereas the words 'Hakoomat-e-Adal' have been defined under section 2(5) of the Act as a kind of sentence of `Diyyat' in which the amount is not fixed by law and is in the discretion of the Court. According to the learned counsel for the respondents, the sentence of `Tazeer' includes the sentence of 'Hakoomat-e-Adal' and, thus, the same can be rightly awarded not only under section 15 of the Act but also under section 3 of the Act in view of the definition of the sentence of 'Hakookat-e-Adal'.
19. We have given our due consideration to the arguments raised at the bar and we are of the view that there is no substance in the argument that the Court has no power to award more than one sentences under section 3 of the Act in a case of an offence of `Zarar'. It may not be logical that in a case of an offence of `Zarar', only one of the sentences enumerated under section 15 of the Act can be awarded but there is no such prohibition if the Courts resort to section 3 read with section 24 of the Act. But a Court of law is bound to interpret a statutory provision as it is and not as it should be.
20. Some of the provisions of the Act are not happily worded and some of them appear to be contradictory. However, a Court of law cannot ignore the unambiguous meanings of a statutory provision and refuse to give effect to them because those do not appeal to reason. Similarly, in view of definition of the word `Diyyat', there is no room for the argument that the separate amount of `Diyyat' can be awarded in case of cutting of or destroying more than one limbs. For the sake of convenience the definition of the word `Diyyat' is reproduced as under:- {{URDU TEXT}} It is evident from the above definition of the word `Diyyat' that separate sentences of `Diyyat' cannot be awarded for the destruction etc. Of more than one limbs. The minimum amount of `Diyyat' in case of cutting of or destroying the limbs has been fixed as market value of the silver weighing 2,916 Tolas and 3 Mashas but no maximum limit has been fixed; at the same time separate amounts of `Diyyat' for more than one limbs is not envisaged because the word 'URDU TEXT' has been used in the definition which is plural of word 'URDU TEXT'. It may also be pointed out that keeping in view the definition of words 'Tamer' and `Hakoomat-e-Ada', as given under section 2 of the Act, the sentence of `Tazeer' envisaged under section 3 of the Act includes the sentence of 'Hakoomat-e-Adal'. Thus, if the Court resorts to section 3, it can award the sentence of `Hakoomat- e-Adal' as a sentence of 'Tamer', despite the fact that word `Hakoomat-e-Adal' has not been specially employed in section 3 of the Act. It would be expedient to reproduce the definitions of 'Hakoomat-e-Adal' and `Tazeer' for elucidating the matter further:- {{URDU TEXT}} It is evident from the definitions of the words liakoomat-e-Adal' and `Tazeer', reproduced above, that the sentences of 'Tazeer' and `Hakoomat-eAdel' both are within the discretion of the Court and the difference between `Hakoomat-e-Adar and `Diyyat' is that while the minimum amount in case of `Diyyat' has been fixed but there is no such fixed limit in case of `Hakoomat-eAde and `Tazeer'.
21. ' In the instant case the accused-appellant has been confined in jail since 1986, i,e. For about a period of six years. Thus, we are of the view that the sentence of minimum amount of `Diyyat', i,e.
22. The price of 2,916 Tolas and 3 Mashas of silver envisaged under section 2(6) of the Act would meet the ends of justice. Consequently, I partly accept the appeal filed by the appellant, and amend his sentence in terms that he shall pay the market value of silver weighing 2,916 Tolas and 3 Mashas which comes to Rs,1,89,555, to Mst. Zarina Begum, complainant, in three equal instalments i,e.
23. Rs,63,185 per instalment. The first instalment of Rs,63,185 shall be deposited in Tehsil Criminal Court, Mirpur, on or before 1st March, 1993; the second instalment of Rs,63,185 on or before 1st March, 1994; and the 3rd instalment of Rs,63,185 on or before 1st March, 1995. If the appellant furnishes surety bond consisting of two sureties binding them jointly and severally that if the appellant fails to deposit the `Diyyat' amount as directed above, they would deposit the amount as indicated above, the appellant shall be released from the jail. However, if the appellant fails to pay any of the instalments on or before the due dates, he shall be arrested and committed to prison and shall be released only if he or his sureties deposit the due instalment in the Court.
24. ' BASHARAT AHMAD SHAIKH, J.--- I agree that the appeal may be partly accepted as indicated in the order of the learned Chief Justice. I also agree with the conclusions reached by the learned Chief Justice on all other legal and factual questions, but I venture to say that in my opinion the question whether the gentence of `Tazeer' includes the sentence of `Hakoomat-e-Adar should be left open in this case. The reason for my saying so is that `Hakoomat-e-Adal' is not being imposed in this appeal and we need not decide whether this sentence can be validly awarded to the appellant.
25. ' SARDAR MUHAMMAD ASHRAF KHAN, J.--- I agree with the judgment and order made by the learned Chief Justice except that part of the observations made at its page 13 wherein it is held that 'in view of the definitions of words `Tazeer' and `Hakoomat-e-Adal' as given under section 2 of the Act, the sentence of `Tazeer' envisaged under section 3 of the Act includes the sentence of 'Hakoomat-e- Adal'. Thus, if the Court resorts to section 3, it can award the sentence of `Hakoomat-e-Adal' as a sentence of `Tazeer', despite the fact that word `Hakoomat-e-Adal' has not been specifically employed in section 3 of the Act". The definition of `Tazeer' as given in the Islamic Penal Laws (Enforcement) Act, 1974 (hereinafter referred to as the Act), in my view, does not include in its ambit the sentence of `Hakoomat-e-Adar because if it were so then there was no necessity or reason for prescribing `Hakoomat-e-Adal' as a sentence separate from that of `Tazeer' and giving its definition in the Act. The sentence of `Hakoomat-e-Adal', as appears from its definition, is in the nature of sentence of `Diyyar where amount of `Diyyar is not fixed and is left to the discretion of the Court. In this view of the matter, I am of the opinion that the sentence of `Hakoomat-e-Adal' cannot be awarded under section 3 of the Act. 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.