' SHAH JEHAN KHAN YOUSUFZAI, J.--- By a judgment, dated 24-11-1996 of the learned Judge Special Court, Karak, Sarfaraz Khan and Anar Badshah, accused-appellants herein, were convicted under section 324, P.P.C. And sentenced to imprisonment for five years each with a fine of Rs,50,000 each or in default to undergo further rigorous imprisonment for one year each. They were also convicted under section 427, P.P.C. For causing damage to the pick-up Datsun and sentenced each of them to undergo one year. Out of the fine imposed upon the appellants under section 324, P.P.C., on realization, a sum of Rs,70,000 was directed to be paid to P.W. Shah Nazar by way of compensation for causing damage to his vehicle while the remaining sum of Rs,30,000 was to be paid to P.W.
Khalil-ur-Rehman as compensation. The appellants were, however, extended the benefit under section 382-B, Cr.P.C. The sentences were ordered to run concurrently. The appellants feeling aggrieved of above judgment filed in this Court Criminal Appeal No,341 of 1996 whereas Shah Nazar and Khalilur Rehman, petitioners herein, filed Criminal Revision No,36 of 1997 for enhancement of sentences of the appellants to imprisonment for life and for raising the amount of fine and compensation.
2. Since both the appeal and the revision have been filed against the one and the same judgment of the learned Judge Special Court, therefore, we propose to dispose them of by this single judgment.
3. The prosecution case, briefly stated, is that on 15-7-1993 Nadeem Ahmad Khan complainant brought the dead body of his uncle Haji Sher Nawab at Police Station Latambar and lodged the report at 13-00 hours on the same day alleging that he alongwith his uncle Haji Sher Nawab, Khalil- ur-Rehman, Muhammad Farooq, Muhammad Noor Shah and Khiyal Badshah alongwith other passengers was travelling in a pick-up Datsun No,6925-BUB which was being driven by Shah Nazar, Driver. Khalil-ur-Rehman and Haji Sher Nawab, who were both sitting in the front seat with the driver, were towards the window and driver's side respectively. It is also alleged that he was on the roof of the Datsun while the other passengers were sitting inside the Datsun and on reaching the place of occurrence situated on a Kacha road near Dabar Banda, he saw accused Sarfraz, Anar Badshah and Niaz Wali (absconding accused) duly armed with klashnikovs. Accused Sarfraz signalled to stop the pick-up which was stopped by the driver and he fired shots with his klashnikov at the front seat as a result of which Sher Nawab got injured. Similarly accused Anar Badshah also fired shots at the front seat hitting Sher Nawab who died on the spot. Co-accused Niaz Wali fired shots on the persons sitting in the rear body of the Datsun as a result of which Muhammad Farooq, Muhammad Noor Shah and Khiyal Badshah sustained injuries. The motive disclosed in the First Information Report for the occurrence was that accused Sarfaraz was on inimical terms with Khalil- ur-Rehman P.W. The accused aimed to kill Khalil-ur-Rehman which resulted in the death of Sher Nawab Khan and injuries to Muhammad Farooq, Muhammad Noor Shah and Khiyal Badshah. The pick-up Datsun was also severally damaged. After the commission of the offence all the accused went into hiding, therefore, proceedings under sections 87 and 204, Cr.P.C. Were initiated against them. Their case was then sent to the Court concerned for trial after the completion of formal investigation.
4. Dr. Riaz Ahmad, Medical Officer, D.H.Q., Hospital, Bannu, examined Muhammad Noor Shah son of Haji Karim Shah aged about 45 years on 15-7-1993 at 2-15 p.m. And found the following:--
(1) Two large wounds which were irregular each of about 3" in diameter in the largest diameter and were separated by stripe of skin of about 2-1/2" width. Muscles tendon and bone exposed and bleeding on anterior surface of right ankle joint.
(2) Two small wounds of about 1" x 4" in diameter in middle of same leg on it frontal surface.
' On the same day and time the doctor examined Khiyal Badshah son of Afzal Muhammad aged about 50 years and found the following:-- ' Two small circular wounds in the middle of left leg about 3-1/2" apart, one on medial and the other on lateral side. Clotted blood all over his leg.
' On the same day at 2-45 p.m. The doctor examined Muhammad Farooq son of Muhammad.
Hayat aged about 24 years and found the following:-- ' One small bleeding wound in the middle of outer border of left foot. Swollen and tendon.
' The nature of injuries of the above injured was found simple, use of kind of weapon was fire-arm and probable duration was three to four hours.
' On the same day at 3-30 p.m. The doctor conducted the post-mortem examination on the dead body of Haji Sher Nawab son of Saadullah Khan aged about 60 years and found the following:- ' External examination
(1) A small entry wound of about 1/2" in diameter on left side of skull below occiput, edges irregular inverted, surrounded by bluish staining.
(2) An irregular large wound of about 4" in diameter blowing away right angle of mendible teeth etc. ' Internal examination ' Skull bone was found fractured. Right mendible fractured. Membran and brain matter was damaged. Mouth, and phrynx was found injured while stomach was foul-and healthy.
' In the opinion of the doctor, the deceased had died due to damage to the brain and the death was instantaneous. The probable time between injuries and death was instantaneous and that between death and post-mortem examination was four to five hours.
5. The prosecution, in addition to above witness, produced as many as 11 witnesses in support of its case. Of them, Umar Sadiq, A.S.-I. (P.W.10), who was then posted at Police Station Latambar, recorded the Murasila which was reduced into writing vide F.I.R. Exh.P.A. He prepared the injury sheet Exh.P.W.10/1 and the inquest report Exh.P.W.10/2 and despatched the same to the mortuary fcr autopsy. He also prepared injury sheets Exh.P.W.10/3 to Exh.P.W.10/6 in respect of injured Muhammad Noor Shah, Khiyal Badshah, Muhammad Farooq and Mst. Deli Begum who were brought to the police station. The injured were then sent for treatment under the escort of Mir Qadam F.C. He recorded the statements of the injured P.Ws. And then left for the spot where he prepared the site plan Exh.P.B. At the instance of the P.Ws. Shah Nazar and Khalil-ur-Rehman. He recovered five empties of 7.62 bore from the place of Sarfaraz accused, two empties of 7.62 bore from the place of accused Anar Badshah and five empties of 7.62 bore from the place of absconding accused Niaz Wali which were giving smell of fresh discharge. He also took into possession one spent bullet vide memo. Exh.P.C./2. He also went to the house of P.W. Shah Nazar where from he took into possession pick-up Datsun which bore seven bullet marks on the roof in the rear. A spare wheel was also taken into possession. He took into possession spent bullets from the place near the accelerator from the body of the pick-up and a piece of cloth with blood- stained from the front seat vide memo. Exh.P.C./3. The clothes consisting of shirt Exh.P.1, Shalwar Exh.P.2, cap Exh.P.3, handkerchief Exh.P.4 all with bloodstained sent by the doctor through Raham Dad F.C. Were taken into possession by the Investigating Officer who then sent the above articles to the Laboratory for necessary test and the result of Laboratory test is Exh.P.W.10/7. He took photographs of the pick-up vide Exh.P.W.10/8 to Exh.P.W.10/16 and recorded the statements of P.Ws.
Khalil-ur-Rehman and Shah Nazar under section 164, Cr.P.C. The pick-up was examined through a mechanic whose report is Exh.P.W.10/17. Hafizur Rehman F.C. (P.W.11) carried out proceedings under section 204, Cr.P.C. He submitted his reports on the warrants Exh.P.W.11/1 and Exh.P.W.11/2 and proclamation notices Exh.P.W.11/3 and Exh.P.W.11/4. Azizullah Mechanic (P.W.12) examined the damaged pick-up and gave his report Exh.P.W.10/17. P.Ws. Nadeem Ahmad, Khalil-ur-Rehman and Shah Nazar (driver) have furnished eye-witness account of the occurrence and rest of the witnesses are formal in nature.
6. The accused-appellants in their statements under section 342, Cr.P.C. Pleaded guilty to the charge and stated that they were innocent and falsely implicated in the case. The appellants further deposed that they neither want to produce defence nor they want to be examined under section 340(2), Cr.P.C. They also relied upon the affidavits filed by the heirs of the deceased and the injured P.Ws.
7. It may be pertinent to mention here that the accused-appellants were arrested on 30-9-1995 after more than two years of the occurrence. At the conclusion of the trial on 3-10-1995 Nadeem Ahmad complainant, the legal heirs of Haji Sher Nawab deceased and the injured P.Ws., namely, Haji Karim Shah, Muhammad Farooq, Khiyal Badshah submitted their statements in writing alongwith affidavits duly verified by the Magistrate 1st Class regarding compromise with the accused-appellants before us. Excepting Mst. Deli Begum real sister of accused Sarfaraz Khan who happened to be one of the passengers in the pick-up and who received injury but neither appeared before the police nor gave her statement in the Court, the complainant, father and other heirs of the deceased Haji Sher Nawab and the injured P.Ws. Cited above have pardoned the accused-appellants and prayed for their release in view of the compromise. The learned trial Court had no alternative but to acquit the accused-appellants of the charge of murder and injuries to the P.Ws. And, as stated earlier, while taking into consideration the above documents in respect of compromise acquitted them but in view of direct evidence of Khalil-ur-Rehman and Shah Nazar corroborated by circumstantial evidence in the shape of bullet marks and damage to the pickup by firing, photographs in respect of vehicle available on the record and severe damage to the vehicle and stamps of occurrence on its body, convicted the accused-appellants and sentenced as above.
8. The learned counsel for the appellants contended that since compromise has been effected between the complainant, the father and legal heirs of Haji Sher Nawab deceased and the injured P.Ws. With the accused-appellants, the learned trial Court has illegal convicted and sentenced them. In this respect he referred to the cross-examination of Nadeem Ahmad complainant who appeared as P.W.5 at the trial and admitted that the accused had muffled their faces except their eyes and that there was a dust storm, due to which darkness had prevailed and the identification of a person was difficult. The witness also admitted that there was a marriage ceremony and the inmates of the said ceremony were busy at that time in aerial firing. The witness further deposed that the appellants were charged on suspicion. According to the learned counsel for the appellants, there were material contradictions between the statements of the eye-witnesses of the occurrence and the medico-legal report was also not in line with the ocular testimony furnished by the P.Ws. He, therefore, prayed for acquittal of the accused-appellants.
9. On the other hand, the learned counsel appearing on behalf of the petitioners in the contended Criminal Revision No,36 of 1997 contended that the accused-appellants had been tried under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and under section 10 thereof, the provisions of the Act have been given an overriding effect on the Criminal Procedure Code or any other law for the time being in force. He vehemently contended that the offence of murder and attempted murder was made compoundable under the Qisas and Diyat Ordinance and Diyat Ordinance and section 345, Cr.P.C. Was amended to the effect that an offence under section 302, P.P.C. Was made compoundable by the heir of the victim but no such amendment was brought in the provisions of the Suppression of Terrorist Activities Act (Special Courts) Act, 1975 and, therefore, the amendment in section 345, Cr.P.C. Was wrongly acted upon by the trial Court and thus the accused-appellants were illegally acquitted of the charge of murder. To substantiate his argument, he divided the offence into two categories: (i) the offence against person and (ii) the offence against society. He emphasised that, while introducing Qisas and Diyat Ordinance, the offence against a person wherein murder is committed was made compoundable but in the instant case the accused-appellants were charged for indiscriminate firing at the pick-up Datsun wherein innocent passengers were sitting and as a result of firing of the accused, Haji Sher Nawab got injured and died on the spot against whom the accused- appellants had no at all. Likewise Khiyal Badshah, Muhammad Noor Shah, Muhammad Farooq and Mst. Deli Begum who happened to be the real sister of accused Sarfaraz Khan also sustained injuries without any cause. The accused-appellants were, therefore, guilty of an offence against society and even if the simple murder has been made compoundable by the legislation, it will have no effect on the present case where the accused were charged for indiscriminate firing at the innocent persons. He also contended that under section 308(2) read with section 311, P.P.C. The Court was competent to award punishment as Tazir even if they had effected a genuine compromise with the heirs of the deceased and the injured P.Ws. The learned counsel argued that the accused could be punished under section 308(2) read with section 311, P.P.C. Which may extend to 14 years as Tazir. He also objected to the disbursement of fine as compensation in between the two petitioners and contended that fine cannot be disbursed as compensation which is awarded under section 544-A, Cr.P.C. Independently of any fine. In this view of the matter, he prayed for enhancement of the punishment and award of compensation independent of fine imposed upon them by the trial Court.
10. The learned counsel for the State supported the impugned judgment of the learned Judges Special Court and maintained that no appeal has been filed by the State against acquittal of the accused-appellants and thus the acquittal based on compromise with the legal heirs of the deceased and the injured P.Ws. Cannot be interfered with. He referred to section 6 of the Suppression of Terrorist Activities Act, 1975 and contended that the trial Court under the Act was having all the powers conferred by the Code on the Court of Sessions exercising the original jurisdiction, therefore, the trial Court has rightly acted upon the genuine compromise which took place between the accused and the victim of aggression. The trial Court has rightly convicted the accused for attempting at the lives of the petitioners in revision and both of them have been granted proper compensation.
11. We have gone through the record of the case carefully and considered the contentions raised by the learned counsel for the parties at the Bar. The prosecution has successfully established that the accused-appellants had indiscriminately fired at the pick-up wherein innocent person lost his life and 4 other passengers including the real sister of accused Sarfaraz Khan sustained injuries. It is an established principle of administration of justice in criminal law that grain is to be sifted from the chaff. The statement of Nadeem Ahmad complainant could easily be taken out of consideration for the simple reason that he has contradicted his own version in his cross-examination., The concession to the appellants was made in view of the compromise, which fact was admitted in his said statement and he has also filed an affidavit to this effect which was marked as Exh.D.W.3 in his statement recorded under section 342, Cr.P.C. Excluding the said concessional statement of P.W.5 prosecution has proved the cases against the accused-appellants without any shadow of doubts.
The prosecution story suffers from no infirmity. According to the statements of Khalil-ur-Rehman and Shah Nazar (P.Ws.6 and 7) who were present in the pickup, the former was sitting in between Haji Sher Nawab deceased and Shah Nazar in the front seat of the vehicle while accused Sarfaraz, who is said to be the uncle of Niaz Wali absconding accused and a friend of Anwar Badshah, accused- appellant has got an with the said Khalil-ur-Rehman. The accused-party had aimed to commit the murder of Khalil-ur-Rehman but since Haji Sher Nawab was sitting towards the window side received the same bullet which was fired at for the murder of Khalil-ur-Rehman. P.W. Khalil-ur- Rehman has explained the motive in his Court statement that two years prior to the occurrence a theft was committed in his house for which he charged accused Sarfaraz and there was a quarrel between the boys of his house and those of the accused-party some 2/3 months prior to the present occurrence. This part of the statement of P.W. Khalil-ur-Rehman has not been objected to in cross-examination which amounts to an admission on the part of the accused-appellants. The eye version account of P.Ws. Shah Nazar and Khalil-ur-Rehman has got support from the circumstantial evidence in the shape of blood-stained piece of cloth from the front seat of Datsun pick-up Exh.P.12, recoveries of 5 empties of 7.62 bore from the place where accused Sarfaraz was shown present at the time of occurrence, 2 empties of 7.62 bore from the place of Anar Badhsah accused, five empties of 7.62 bore from the place of Niaz Wali absconding accused, one spent bullet Exh.P.8 from the spot, two spent bullets Exh.P.10 and Exh.P.11 from the body of pick-up Datsun, three bullet marks on the steering board of the pick-up, the vehicle damaged report Exh.P.W.10/17, Chemical Examiner Report Exh.P.W.10/7, Medico-legal Reports Exh.P.W.8/1, Exh.P.W.3/1, Exh.P.W.3/2, Exh.P.W.3/3 and the post-mortem report Exh.P.M. And photographs of the damaged Datsun Exh.P.W.10/8 to Exh.P.W.10/16. Apart from that, both the accused remained in abscondence for more than two years and in view of abscondence of the accused-appellants proclamation notices under section 87, Cr.P.C. And warrants under section 204, Cr.P.C. Were issued against them. All these facts conjointly prove that the accused-appellants alongwith his absconding accused fired indiscriminately at the pick-up Datsun to commit the murder of Khalil-ur-Rehman P.W./petitioner in the revision which resulted in the death of Haji Sher Nawab deceased and injuries to Khiyal Badshah, Muhammad Noor Shah, Muhammad Farooq and Mst. Deli Begum but since the legal heirs of Haji Sher Nawab deceased and the injured persons, Khiyal Badshah, Muhammad Noor Shah and Muhammad Farooq have patched up the matter witil the accused-appellants and the injured Mst. Deli Begum had neither charged the accused-appellants nor made any statement in the case either at the stage of investigation or at the trial, therefore, the learned trial Court has rightly acquitted them. It is also a fact that the accused-appellants were arrested on 30-9-1995 and the affidavit statements duly attested by a Magistrate of the 1st Class produced at the trial as Exh.D.1 to Exh.D.4 were recorded on 3-10-1995 only after three days of their arrest by the police, meaning thereby that they remained in abscondence till succeeded in inforcing a settlement on the heirs of deceased and the injured victims. Since there is no appeal against the acquittal of the accused-appellants, it has rightly been urged by the learned counsel for the State that their acquittal cannot be interfered and converted into conviction.
12. As far as the objection of the learned counsel for the petitioners in revision regarding compoundability of an offence in a case tried under the Suppression of Terrorist Activities (Special Courts) Act, 1975, suffice it to say that by making Article 2-A as integral part of the Constitution the hurt and murder cases were made compoundable under the Qisas and Diyat Ordinance, 1990 and the relevant sections of P.P.C. And Cr.P.C. Were amended in accordance with the Injunctions of Islam. A Qura'nie verse can advantageously be reproduced here:-{{ARABIC TEXT}} The murder or an attempt to commit murder is by now a compoundable offence irrespective of making any amending provision in the Suppression of the Terrorist Activities (Special Courts) Act, 1975. Even under the Suppression of the Terrorist Activities (Special Courts) Act, 1975 the Court derives powers to convict an accused under the P.P.C. And Cr.P.C. As envisaged in section 6 of the Act. Under the principles of Islamic Law in spite of composition of an offence of Qatl-e-Amd where right of Qisas is waived off by Walis of deceased the Court has been given the powers to award punishment as Tazir under section 311, P.P.C. Having regard to the facts and circumstancesrof the case and if in the opinion of a Court it is found that an accused is guilty of commission Fasad-fil- Arz in spite of composition of Qisas and Diyat he may be awarded punishment upto 14 years as Tazir.
13. The submission of the learned counsel for the petitioners in the revision petition with regard to the quantum of sentences awarded to the accused-appellants has got some force. The trial Court has not awarded exemplary punishment and without giving reasons for awarding lessor punishment to the accused-appellants who were found guilty under section 324, P.P.C. For attempting at the lives of P.W. Khalil-ur-Rehman and P.W. Shah Nazar. But the appellants can also be held responsible for committing Fasad-fil-Arz. Section 311, P.P.C. Can advantageously be reproduced below:-- "311. Ta'zir after waiver or compounding of right of Qisas in Qatl-i-Amd.--- Notwithstanding anything contained in section 309 or section 310 where all the Wali do not waive or compounded the right of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which is extended to fourteen years as Ta ' zir.
Explanation.--- For the purpose of this section, the expression Fasadfil-Arz shall include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed."
14. In view of the facts and circumstances of the case and for the reasons stated above, Criminal Appeal No, 341 of 1996 is dismissed and, while on the acceptance of Criminal Revision No, 36 of 1997 the sentence under section 324, P.P.C. Imposed upon the accused-appellants Sarfraz and Anar Badshah is enhanced from 5 years' R.I. To 7 years' R.I. With a fine of Rs,50,000 each in default whereof to undergo one year's R.I. Each. They shall also pay compensation of Rs,70,000 to Shah Nazar and Rs,30,000 to Khalil-ur-Rehman under section 544-A of the Cr.P.C. Or in default to suffer 6 months' S.I. Each. Above are the reasons for our short order, dated 21-4-1997.