' MIR HAZAR KHAN KHOSO, J.---Petitioner, Muddasar alias Jimmi (21/22) seeks leave to appeal against the judgment dated 28-5-1995 passed by the Lahore High Court, Lahore.
2. The facts giving rise to this petition are that on the day of occurrence, 13-1-1991, Zamurd Hussain P.W.11, Malik Muhammad Aslam, P.W.12 and Malik Mumtaz Hussain (given up P.W.) came to Bhakkar from Village Hyderabad to participate in the Valeema ceremony of the sons of Amanullah Shahani.
Malik Mumtaz Hussain deceased was closely related to the said P.Ws. And was an Advocate at Bhakkar. The said deceased was also invited in the above said Valeema. The complainant and the above said P.Ws. Went to the chamber of Malik Mumtaz Hussain and asked him to accompany them to Valeema ceremony. The deceased informed them that Muhammad Imran deceased was appearing in the examination at Government High School, Bhakkar and that a day earlier Muhammad Iqbal P.W.10 had informed him that on their way back from the school, the co-accused and petitioner had teased him for illicit purpose and he would first bring back Muhammad Imran deceased from the school and then he would accompany them. Thereafter, Zamurd Hussain, P.W.11, Malik Muhammad Aslam, P.W.12, Malik Mumtaz Hussain (given up P.W.) and Malik Mumtaz Hussain deceased started for Government High School in Jeep No,BK-2488. At about 1130 a.m. When they reached at a distance of about 70/80 karams ahead of the house of Rafi Ullah Khan in the area of Chimni Mohallah they saw that the petitioner and co-accused had encircled Muhammad Imran deceased. Muddasar alias Jimmi and Muhammad Aslam alias Niazi accused were armed with revolvers and the others were armed with knives. Malik Mumtaz Hussain deceased was driving the vehicle. He halted the same and alighted from the jeep. He started towards the petitioner and co- accused and Muhammad Imran deceased, Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh accused raised Lalkara that both son and father should not go alive. Simultaneously Muddassar alias Jimmi fired with the revolver which hit Muhammad Imran deceased on the right eye who fell on the ground after receiving the injury. Thereafter, Muhammad Aslam alias Niazi accused fired with revolver which hit Malik Mumtaz Hussain deceased in the right side of the chest.
He also fell, down on the ground after receiving the injury. The complainant Muhammad Aslam, P.W.12 and Malik Mumtaz Hussain (given up P.W.) went forward but the petitioner and co-accused offered threats to them and escaped towards the western side. Muhammad Imran died at the spot whereas his father Malik Mumtaz Hussain became unconscious. Muhammad Aslam, P.W.12, took him in injured condition to D.H.Q., Hospital, Bhakkar, leaving Malik Mumtaz Hussain (given up P.W.) with the dead body of Muhammad Imran deceased and Zamurd Hussain, P.W.11, went to the police station where F.I.R. Exh.PQ. Was recorded on his statement at 12-00 noon by Ghulam Hussain S I /S H 0 City Bhakkar. Malik Mumtaz Hussain died as a result of injury in the hospital on the same day.
Post-mortem of both the deceased Muhammad Imran and Malik Mumtaz Hussain was conducted by Medical Officer Dr. Ghazanfar Abbas on 13-1-1991 at 1-50 p.m. And 2-30 p.m. Respectively.
3. Ghulam Hussain, S.I./S.H.O. Took investigation of the case in hand. He sent S.I. Atta Muhammad to D.H.Q. Hospital, Bhakkar. He went to the place of incident. He prepared injury and inquest reports of dead body of Muhammad Imran. From his search examination material etc. Was found. Witness collected blood-stained earth from the two places. He also recovered glasses from there. On 14-1- 1991 he arrested Muddassar, Saeed Akhtar, Muhammad Aslam and Muhammad Yousaf. On 22-1- 1991 Muddassar led to recovery of revolver from his house, Saeed and Muhammad Yousaf led to recovery of knives individually. On 23-1-1991 Muhammad Aslam led to recovery of revolver. He arrested Muhammad Bakhsh from Bhakkar, who led to recovery of knife. He challenged the petitioner along with his four companions to face trial for offence under sections 302, 149 and 148, P.P.C. Before the Court.
4. On 13-1-1991 Amanullah, S.I. Went to the D.H.Q. Hospital, Bhakkar where found Malik Mumtaz Hussain already expired. He prepared inquest and injury reports of his dead body and made certain recoveries.
5. The petitioner and his companions mentioned hereinabove denied the charge under sections 302/149, 148, P.P.C. And claimed trial.
6. To establish the charge prosecution examined:-- ' P.W.1 Dr. Ghazanfar Abbas. Medical Officer. He conducted postmortem on the dead bodies of Malik Mumtaz Hussain and Muhammad Imran. On person of deceased Muhammad Imran (16) Medical Officer found injuries as under:-- "(1) A fire-arm entry wound 1 cm in diameter with inverted margin. There was no blackening present around the margins. The injury was at the inner angle of right eye.
(2) On dissection I found a through and through hole in the skull. When the probe was passed from the external wound into the cranial cavity whole of the brain in the track was heavily lacerated.
There was similar hole at the back of the skull slightly toward the left of the mid line. The bullet was found embattled in the scalp in the back of the skull from there it was removed and was sealed in a phial."
' These injuries were found sufficient to cause death in ordinary course of nature. The time between death and post-mortem was within six hours. Rigor mortis and post-mortem signs had developed.
On person of deceased Malik Mumtaz Hussain (50) following injury was found:-- "(1) A fire-arm entry wound 1 cm in diameter with inverted margin. There was no blackening around the margins of the wound. Fluid blood was coming out through the wound upon pressing the chest.
The wound was on the right side of the chest at the level and 3 c.m. Inner to the right nipple." ' injury was found sufficient to cause death in ordinary course of nature. The time between death and post-mortem was 2-1/2 hours. Rigors mortis and post-mortem signs had developed.
' P.W.2 Hameed Ullah, H.C. On 24-1-1991, he arrested Muhammad Bakhsh at Dera Ismail Khan.
' P.W.3 Ghulam Siddique, Draftsman. He prepared sketch of the Vardat.
' P.W.4 Hameed Ullah. A.S.I./Moharrir, City Police Station, Bhakkar.
' P.W.5 Muhammad Ilyas H.C. He handed over dead body of deceased Malik Mumtaz Hussain for post-mortem to Medical Officer.
' P.W. 6 Malik Ghulam Yasin. He identified the dead body of Muhammad Imran, before the Medical Officer.
' P.W.7 Malik Hussain Bakhsh, Mashir, witness of the Vardat. P.W.8 Malik Zahoor Ahmad. In his presence Muddassar, Saeed Akhtar, Muhammad Yousaf, Muhammad Bakhsh and Muhammad Aslam led to recovery of weapons of offence.
' P.W.9 Muhammad Bakhsh. F.C. He handed over dead body of Muhammad Imran deceased for post-mortem.
' P.W. 10 Muhammad Iqbal, servant of Malik Mumtaz Hussain. Witness of motive. Occurrence of the earlier day.
' P.W. 11 Zumard Hussain. Eye-witness.
' P.W.12 Malik Muhainmad Aslam. Eye-witness.
' P.W.13 Aman Ullah. S.I. Partly investigated the case. P.W.14 Ghulam Yasin. S.I./S.H.O. Investigated the case.
7. In their statements all the accused denied the allegation and canvassed innocence. In reply to question No,12 the petitioner explained his position as under:-- "The P.Ws. Are closely related to each other and the deceased. Muhammad Iqbal P.W. Had been purchasing different articles from my shop for the construction of the house of his brother on loan.
He had made payment of some amount of money and a sum of Rs,5000 was outstanding against him. I had asked him for the payment of the said amount which resulted into an altercation between me and Muhammad Iqbal P.W. I have been falsely involved in this case at the instance of Muhammad Iqbal P.W. On 12-1-1991 I had gone to District Dera Ismail Khan to the house of my sister and returned to Bhakkar on 13-1-1991 at about 3-00 p.m." ' produced School Leaving Certificate showing his date of birth.
8. The learned Sessions Judge, Jhang, however, on 15-7-1991 found all of them guilty for the charge, convicted and sentenced them as under:--
(i) All of them to suffer R.I. For two years under section 148, P.P.C.
(ii) Muddassar alias Jimmi and Muhammad Aslam alias Niazi to death on two counts, fine of Rs,10,000 each or to suffer R.I. For two years more. To pay compensation of Rs,15000 each or to suffer R.I. For 6 months more. Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh to suffer R.I. For life. To pay fine of Rs,10,000 each or to suffer R.I. For two years. To pay compensation of Rs,15000 or to suffer R.I. For six months.
9. The petitioner and his companions filed appeal before the Lahore High Court, Lahore. The learned Sessions Judge made reference under section 374, Cr.P.C. For confirmation of death sentences. The complainant also filed two revision petitions.
10. However, the High Court on 28-5-1995 dismissed the appeals and the revision petitions.
Accepted the reference of the learned Sessions Judge and confirmed death sentences of the petitioner and Muhammad Aslam alias Niazi.
11. The petitioner, Muddassar alias Jimmi, has only come before this Court and sought for leave to appeal. We enquired from the office of any petition by other convicts was filed at Lahore or Islamabad, but the reply was in negative.
12. Mian Muhammad Najum-uz-Zaman, Advocate Supreme Court, the learned counsel for the petitioner, contended that the incident had not taken place at the time and in the manner as alleged by the prosecution. He canvassed that it was blind murder, occurred in early hours of the morning, noticed very late, eye-witnesses were procured from their village Hyderabad, after preliminary investigation, due deliberation and consultations dubious F.I.R. Was lodged. No importance could be given to it. Eye-witnesses Zamurd Hussain and Muhammad Aslam are neither natural witnesses nor truthful, besides, related to the deceased and hostile to the defenses. Their evidence is contradicted by medical evidence by absence of trail of blood at the spot or and on the jeep and presence of post-mortem signs on the deceased. Being interested/chance witnesses, their evidence requires strong corroboration which lacks. The trial Court as well as the High Court have neither assessed nor properly appraised their evidence on the established principles for safer administration of criminal justice. On the contrary it has been misread by the High Court, he claimed.
' Reliance was placed on 1995 SCM R 599. It says:-- "Time of occurrence recorded in F.I.R is not always genuine. Police after learning about commission of crime, keeps space in daily diary (Roznamcha) and a page in F.I.R. Register blank for incorporation gist of information, factum of registration of case and detailed report subsequently."
' The authority has no relevancy with the facts of the case in hand. Every criminal case is to be decided on its own merits.
7. In respect of misreading of the evidence by the High Court, the learned counsel drew our attention to the following observations of the High Court:-- "Even these two witnesses deposed that Malik Mumtaz Hussain deceased asked them to accompany to the school, where his son Imran deceased is appearing in the examination and then would all go to the Valeema ceremony."
' According to him the two witnesses had not said that deceased Malik Mumtaz Hussain had asked them to accompany him. But the High Court on its own has said so. It is, therefore, case of misreading of evidence. The objection is of no consequence. It is of trivial nature and in no way dents the case of the prosecution on material points.
8. Then with the dexterous assistance of the learned counsel for the petitioner we were taken through the judgment passed by the High Court and other material evidence necessary for disposal of this petition.
9. The break-up of the prosecution evidence is-- I. Motive; II. Ocular evidence; III. Recoveries; and IV. Medical evidence. I. Motive comes from the mouth of:-- (i) P.W.10 Muhammad Iqbal: "A day before the present occurrence I had gone to the school to bring back Muhammad Imran deceased. Myself and Muhammad Imran started for the house of Malik Mumtaz Hussain. When we reached at a distance of about 15-20 Karams from the school, all the five accused present in Court namely Mudassar alias Jimmi, Saeed Akhtar, Muhammad Aslam alias Niazi, Muhammad Yousaf and Muhammad Bakhsh appeared there and started teasing Muhammad Imran and asked him to have illicit relations with the accused. I intervened. However, when we again started for our house Mudassar accused came in front of us and told Muhammad Imran that if he would not agree to have illicit relations with the accused then he would settle the matter with the (sic) back Muhammad Imran deceased to his house and narrated the above story to his father Malik Mumtaz Hussain deceased. Malik Mumtaz Hussain deceased told me that he would himself take Muhammad Imran deceased to the school and bring him back."
(ii) P.W.11 Zumard Hussain: "Malik Mumtaz Hussain deceased informed us that his son Muhammad Imran deceased was appearing in the examination at Government High School, Bhakkar, and that a day earlier he was informed by Muhammad Iqbal, P.W. That when Muhammad Iqbal and Muhammad Imran were returning from the school Muddassar alias Jimmi and others had teased Muhammad Imran for illicit purpose and that Mumtaz Hussain deceased would first bring his son Muhammad Imran deceased from the school and then would accompany us."
P.W.12 Muhammad Aslam: "Malik Mumtaz Hussain deceased had also informed us that a day earlier his servant Muhammad Iqbal P.W. Informed him that Muddassar alias Jimmi and other accused who were vagabond had teased Muhammad Imran a day before the occurrence and for that he would bring Muhammad Imran from the school himself."
II Ocular evidence is of:
(i) P.W.11 Zamurd Hussain: "At about 11-30 a.m. When we reached at a distance of 70/80 Karams ahead of the house of Rail Ullah Khan in the area of Chimni Mohallah, at that time we saw that all the accused present in Court had encircled Muhammad Imran deceased. Muddassar alias Jimmi and Muhammad Aslam alias Niazi accused were armed with Revolvers whereas Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh accused were armed with knives. Malik Mumtaz Hussain deceased halted the jeep and alighted from the same. He started towards the accused and Muhammad Imran deceased. At that time Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh accused raised a Lalkara that both father and son i,e, Malik Mumtaz Hussain and Muhammad Imran should not go alive. Simultaneously Mudassar alias Jimmi accused fired with the Revolver which hit Muhammad Imran deceased on the right eye. Muhammad Imran had fallen on the ground after receiving the injury. Thereafter, Muhammad Aslam alias Niazi accused fired with the revolver which hit Malik Mumtaz Hussain deceased in his chest right side. Malik Mumtaz Hussain had also fallen on the ground after receiving the injury. My self, Malik Mumtaz Hussain and Malik Muhammad Aslam P.Ws.
Went forward and raised alarm. We wanted to intervene but the accused threatened us that if any of us would come near he shall be murdered."
P.W.12 Malik Muhammad Aslam: "At about 11-30 a.m. When we reached at some distance ahead of the house of Rafi Ullah Khan at that time we saw that all the five accused Mudassar alias Jimmi, Saeed Akhtar, Muhammad Aslam alias Niazi, Muhammad Yousaf and Muhammad Bakhsh Mallana had garrowed Muhammad Imran deceased. Mudassar and Muhammad Aslam accused were armed with Revolvers and the others were armed with knives. Malik Mumtaz Hussain stopped the jeep and after alighting from the jeep started towards the accused. At that time Saeed Akhtar, Muhammad Yousaf and Muhammad Bakhsh accused raised Lalkara that both Muhammad Imran and Malik Mumtaz Hussain, the son and the father, should not go alive. Simultaneously Mudassar alias Jimmi accused fired with revolver which hit Muhammad Imran deceased on the right eye. After receiving the injury Muhammad Imran had fallen on the ground. Similarly Muhammad Aslam alias Niazi accused fired with the Revolver which hit Malik Mumtaz Hussain deceased in the chest and he had also fallen on the ground. Myself, Zumard and Malik Mumtaz Hussain P.Ws. Came forward and raised alarm but the accused threatened us that if anyone of us would come near he would be murdered."
III. Recoveries have not been used as corroborative evidence by the Courts below, we need not to deal with it. IV. Medical evidence: Dr. Ghaznfar Abbas says: (i) Muhammad Imran: "It was the dead body of a young boy aged about 16 years. Rigor mortis developed and post- mortem staining were developing..
' The duration between the injuries and death was within five to ten minutes whereas between death and post-mortem it was within six hours..
(ii) Malik Mumtaz Hussain: "Rigor mortis was well-developed and post-mortem staining was present,.. .... The duration between the injuries and death was within 30 minutes whereas between death and post-mortem it was 2- 1/2 hours."
17. With motive the trial Court has dealt with:- "The motive set up by the prosecution was proved through the testimony of P.W.10, P.W.11 and P.W.12."
' The High Court has observed:-- "The motive given in the F.I.R. Stood proved from the statement of Muhammad Iqbal P.W.10, who had no apparent enmity against the appellants."
18. Ocular evidence: The trial Court has said:-- "As mentioned earlier the complainant and other eye-witnesses had no enmity with any of the accused to show that they have falsely involved the accused. It was a day time occurrence. There was no question of mistaken identity. The F.I.R. Was promptly recorded without loss of time leaving no time for deliberation and consultation. Aman Ullah Shahani and his sons were political persons.
Hundreds and thousand persons must have voted against them but there was no instance that any of such opponents was involved in false murder case. The occurrence date 12-1-1991 was impliedly admitted during the suggestion put to P.W.10. The fact that the P.Ws. And Mumtaz Hussain deceased were travelling in the jeep was also impliedly admitted during the cross-examination of P.W.11 as indicated earlier. The said P.W. Was suggested that when he left the place of occurrence after the occurrence for the Police Station Naeem Ullah Shahani and Aman Ullah Shahani had already reached there and they accompanied him to the police station. This suggestion was denied by the witness and no suggestion was put to the I.O. P.W.14. Since the F.I.R. Was lodged soon after the occurrence leaving no scope for consultation and fabrication therefore such a report was presumed to be a truthful account delimit possibility of substitution or false implication."
' The High Court has observed: "It is a broad daylight occurrence. The accused were known to the eyewitnesses. Substitution for the real culprit is a rare phenomenon, nobody would knowingly substitute an innocent person for the real culprit.
' In the present case, there is no material on the record to substantiate any ill-will or enmity directly between the eye-witnesses and the appellants. A suggestion was put to the eye-witnesses by the defence that.The appellants have been involved in this case due to party faction, particularly, one of the appellants, namely, Saeed Akhtar, a nephew of Hafiz Mumtaz All of Jamia Rasheedia, who was opposing candidate of Naeem Ullah Shahani, even this suggestion per se does not prove that the eye-witnesses had any grouse against the said appellant to involve him falsely in this case.
Placing reliance on Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452) we hold that if presence of eye-witnesses at the spot is established, the occurrence is of daytime and the F.I.R. Is lodged promptly, then no further corroboration of the ocular version is required, though in the present case the ocular version is amply proved by the medical evidence, as mutilated led bullets were recovered from the dead bodies of the deceased which confirms the ocular version."
Medical evidence: The trial Court has not discussed it. The High Court has treated it:-- "The learned counsel for the complainant has placed reliance on a case in which their Lordships of the Supreme Court held that Rigor mortis started developing after 1/2 hour of the death. In ,the present case, as the post-mortem was conducted after two hours, the presence of Rigor mortis per se, does not contradict the ocular version."
20. The incident has taken place on 13-1-1991 at 11-30 a.m. In the City of Bhakkar. The report thereof was promptly made at 12-noon at the City Police Station, Bhakkar by eye-witness Zamurd Hussain, brother-in-law of deceased Mumtaz Hussain. Simultaneously other eye-witness Muhammad Aslam a near relative of the deceased carried injured Mumtaz Hussain to D.H.Q. Hospital, Bhakkar.
On evidence of these two witnesses the petitioner and his companions were convicted.
Undoubtedly both the witnesses are closely related to the complainant and the deceased. undisputedly they reside in Hyderabad at distance of 40 miles from the place of the incident. Mere relationship of witnesses with complainant or deceased is not per se sufficient to term the witnesses as interested. There is no material available on the record to indicate that these witnesses held any grudge against the petitioner or vice versa. No suggestion was even put to the witnesses in cross-examination. The witnesses as such are uninterested one. from the very stage of the F.I.R both the witnesses have given explanation that they had gone to attend Valima ceremony of sons of M.NA. Aman Ullah Khan Shahani at Bhakkar. They have affirmed it in Court by their oral evidence which is strongly corroborated by invitation cards. The witnesses are closely related to deceased Mumtaz Hussain. Being close relative their going with the deceased to fetch Muhammad Imran is natural and not against human conduct. Their invitation cards were produced from the Jeep. Their presence at the spot is further supported by the fact that immediately after the incident Malik Muhammad Aslam took Mumtaz Hussain in injured condition to hospital where acted as Mashir of recoveries. Zamurd Hussain went to the Police Station and lodged the report. In short period of half an hour possibility of manipulation, preliminary investigation consultation is ruled out.
Going of deceased Mumtaz Hussain to fetch his son Imran is further established by the fact that both of them were assaulted one and the same time and place.
21. We have noted with caution that witnesses Muhammad Iqbal, Zamurd Hussain and Malik Muhammad Aslam were subjected to a very lengthy unusual cross-examination. Such practice has been depreciated by this Court in the case reported in PLD 1967 SC 167 (Muhammad Shafi etc. v. The State). This Court has observed:- "The purpose of cross-examination is to assist the Court in bringing the truth to light by disclosing or clarifying matters which witnesses may wish to conceal or confuse from motives of partisanship.
The partisan nature of all these witnesses with the exception of Karim Bakhsh was plain, and in view of the nature of the defenses set up, the points on which concealment was to be accepted were also well-defined. Effective cross-examination could be confined within a narrow compass. Here, the questioning went beyond all reasonable limits.
' There is regrettable practice among class of lawyers to use prolonged cross-examination for the purpose of leading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the form of leading questions has thereby been reduced.
Such a practice is plainly designed not for the disclosure of truth, but for the manipulation of error, and we take this opportunity of expressing our entire disapproval of the use of such methods."
Besides, in cross-examination irrelevant scandalous questions were put to the witnesses. The Court remained unconcerned. Indeed, it is duty of the Court to give protection to the party and discourage such practice. Article 146 of the Qanun-e-Shahadat Order, 1984 deals with such powers of the Courts. The C Article reads:-- "Indecent and scandalous questions.--The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matter, necessary to be known in order to determine whether or not the facts in issue existed."
' It is hoped that the trial Courts as far practicable would follow the proposition enunciated in the case of Muhammad Shall v. The State (PLD 1967 SC 167) and act upon the provisions of Article 146 of the Qanun-e-Shahadat. In our view it will not only save the precious time of the Courts but will also provide protection to the witnesses from unnecessary strain and harassment.
22. Muhammad Iqbal has projected the motive. He had no animosity against the petitioner. Mere suggestion that the petitioner had asked him to pay debt is no ground to discard his evidence. His evidence has been affirmed by the two P.Ws. Zamurad Hussain and Muhammad Aslam. Motive stood proved.
23. The crucial point involved in the case is presence of Rigor mortis and stains of post-mortem on both the dead bodies of father Mumtaz Hussain and his son Imran. Petitioner's counsel thus argued that incident has taken place in the early morning. He contended that definite suggestion was put to witness Zamurd Hussain that the incident has taken place at 9-00 a.m. To support his contention the learned counsel submitted that the doctor had admitted that Rigors mortis and post-mortem stains develop after six hours or so and is completed within 2/3 hours in winter season. It is first part of the cross-examination of the Medical Officer, but ultimately he has affirmed that such signs start soon after the death. There is weight in his latter view. In Modi's Medical Jurisprudence and Toxicology (January 1975 Edition) at page 121, it has been said that "in India Rigor mortis usually commences in one to two hours after death, and takes one to two hours to develop".
24. Besides, it is noteworthy that Mumtaz Hussain was brought alive in the hospital at 11-50 a.m. He died in the hospital. His post-mortem was conducted at 2-30 p.m. The doctor opined that the time between the injuries and death is 30 minutes and between death and post-mortem 2-1/2 hours.
This timing coincides with the timing of the incident i,e, 11-30 a.m. Given in the F.I.R. Doctor conducted post-mortem on the dead body of Imran at 1-50 p.m. He opined that time between death and post-mortem was within six hours.
This timing is also not out of the range. The medical evidence thus does not I u contradict with the ocular evidence but on the contrary supports it.
25. The promptitude lodging of the F.I.R. Rules out possibility of false concoction. In addition thereto the F.I.R. Contains the names of the eyewitnesses, the assailants, the weapons they carried and the part they played. The trial Court as well as the appellate Court have properly assessed the evidence and reached at proper and just conclusions.
26. We do not find any infirmity with the impugned judgments. There is no merit in the petition which is dismissed. Leave to appeal is refused accordingly.
27. Before parting with the case it may be observed that the Sessions Judge had charged the petitioner and his companions for offence under section 302/149/148, P.P.C. Manifestly the Court has not specified subsection of section 302. Its mention is neither mandatory nor necessary at the stage of the charge and may be ignored. But it concerns much if subsection is not specified in the judgment where conviction is awarded. In the case in hands the trial Court has convicted the petitioner and his companions for offence under section 302, P.P.C. And imposed sentence of death but has failed to specify its subsection. The Court has also not assigned any reason for not imposing sentence of `Qisas' or sentence of 25 years or lesser than that which sentences are also provided in the section. It also slipped from the notice of the High Court. Indeed, all is left to presumptions. It was bounden duty of the Court to have specified the relevant subsection of the section 302, P.P.C. Whereunder they were convicted and sentenced. Nothing should have been left to presumption. It is requirement of section 367, Cr.P.C. And is to be followed by the Courts. Section 367, Cr.P.C. Reads:-- "367.--(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court or from the dictation of such Presiding Officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision, thereon and the reasons for the decision, and shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him.
(2) It shall specify by offence (if any) of which and the section of the Pakistan Penal Code or their law under which, the accused is convicted, and the punishment to which he is sentenced.
(3) When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(5) If the accused is convicted of an offence punishable with death, the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed.
(6) For the purposes of this section, an order under section 118 or section 123, subsection (3), shall be deemed to be a judgment."
28. We are, therefore, constrained to draw the attention of the trial Courts to the provisions of section 302 of the Pakistan Penal Code. It reads:-- "302. Whoever, commits Qatl-i-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Ta`z.Ir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) Punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
29. Section consists of three parts, (a), (b) and (c); (a) provides sentence of Qisas, (b) death or imprisonment for life and (c) sentence up to 25 years. For conviction and sentence under section 302(a), P.P.C. The quality of evidence is laid down in. Section 304, P.P.0 and it has obviously nexus with Article 17 of the Qanun-e-Shahadat Order, 1984.
30. It is alarming that the trial Courts ignore to follow the provisions of section 304, P.P.C. And Article 17 of the Qanun-e-Shahadat while recording evidence of witnesses. It not only results in miscarriage of justice but also deters the superior Courts in rectifying errors or passing appropriate orders. We are, therefore, inclined to reproduce the abovesaid statute for clear understanding:-- "304.--(1) Proof of Qatl-i-Amd shall be in any of the following forms, namely:-
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis apply to a hurt liable to. Qisas." Article 17 of the Qanun-e-Shahadat:-- "17.--(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood to any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remained the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
31. Ostensibly section 304, P.P.C. Plays pivotal role in determining fate of persons found guilty for murder "Qatl-i-Amd" under section 302, P.P.C.:--
(1) In case where evidence as envisaged under section 304 P.P.C. Is proved an accused shall be punished for offence under section 302, part (a) and sentenced to Qisas.
' In case where evidence as required under section 304, P.P.C. Is brought on the record but sentence of Qisas cannot be applied because of bar imposed under section 306, P.P.C. It reads:-- "306. Qatl-i-Amd shall not be liable to Qisas in the following cases, namely:-
(a) when an offender is a minor or insane: ' Provided that, where a person liabrc to Qisas associates himself in the commission of the offence with a I -rson not liable to Qisas with the intention of saving himself froni Qisas, he shall not be exempted from Qisas;
(b) when an offender causes de- of his child or grandchild, how low sever; and
(c) When any Wall of the: victim is a direct descendant, how low sever, of the offender."
(iii) But where the evidence is available but it does not fulfill the condition laid down under section 304, P.P.C. The person may be convicted and sentenced for Ta`z.Ir under section 302, part (b) to death or imprisonment for life.