1. ' MUNAWAR AHMAD MIRZA, J.---These petitions arise from different incidents, but have been decided by Peshawar High Court through common judgment dated 30th October, 1997 and involve consideration of identical points of law.
2. ' For convenience brief facts relating to respective petitions are also given below.
3. Cr.Ps. 58-P and 59-P of 1997 ' On 2nd July, 1993 at about 10-30 a.m. One Muhammad Ali Khan was murdered. Majat Khan, brother of the deceased, reported the matter to the police in the hospital of Khwazakhela whereupon F.I.R. No,176 was registered. Complainant specially charged Arsala Khan, Ali Raz, Rozi Alam, Banat Alam and his father Suhrab Khan. Firing was attributed to all the accused, but fatal shot is stated to have been fired by Bakht Alam. Arsala Khan was arrested on 4th July, 1993 and remaining absconding accused were arrested on 10th August, 1993. All the accused were sent for trial before the learned Sessions Judge/Zilla Qazi, Swat and all were charged for the murder of deceased Muhammad Ali Khan. After recording the statements of the P.Ws. And the accused, trial Court came to the conclusion that the witnesses were not speaking truth and had not seen the occurrence. Ali Shah son of deceased was summoned for 27th November, 1996 and asked to take oath. He charged Bakht Alam for the murder of his father; and on the basis of this Qasam of Ali Shah, the learned Sessions Judge/Zilla Qazi found Bakht Alam liable to Diyat in the sum of Rs,4 lac for the murder of Muhammad Ali Khan vide judgment dated 27th November, 1996. Bakht Alam filed an appeal against the State and Majat Khan, brother of the deceased, and State filed Criminal Appeal against Arsala Khan and other acquitted accused under section 417, Cr.P.C. Besides, complainant filed Criminal Revision against Bakht Alam accused. The learned High Court through common and consolidated judgment dated 30th October, 1997 decided the matter and setting aside judgment of trial Court directed the accused to be set at liaberty. Through these petitions said judgment has been challenged.
4. Cr.P.69-P/97 ' Relevant facts are that the dead body of deceased Nasiat Bibi, wife of accused Naseeb Khan, was brought to the hospital by Zarawar Shah who lodged F.I.R. No,20 with Police Station Dargai and charged the accused for her murder. Challan was submitted in the Court on 29th July, 1994. The charge was framed and prosecution evidence was recorded. After the closing of evidence accused was examined under section 342, Cr.P.C. The learned trial Court after hearing the arguments on 24th January, 1995 held that the murder had been established as the dead body had been recovered from the house of accused, her husband. Thus, Qasamat was offered to the accused from whose house the dead body was recovered, and liability of Diyat was imposed vide judgment dated 6th November, 1995. Respondent Naseeb Khan preferred Criminal Appeal No,369 of 1995 which alongwith other matters was decided by Peshawar High Court vide common judgment dated 30th October, 1997. Hence this petitions for leave to appeal.
5. Cr. P.71-P/97 ' On 1st October, 1995, Mohammad Younas lodged F.I.R. With Police Station Kabal, District Swat, alleging that his cousin, deceased Fazal Mabood, who was dealing in foreign goods, went out of his house at 3-30 p.m. And was killed by some body, infliciting him fire-arm injuries. He went to the spot and saw Fazal Mabood lying murdered. During investigation respondent Muhammad Khan was arrested by the police and sent him for trial before Sessions Judge/Zilla Qazi Swat. After recording evidence, the learned Sessions Judge vide judgment dated 17th March, 1997 found respondent guilty and held him liable for payment of Rs,4 lac (Rs,4,00,000) as Diyat to be distributed amongst the heirs of deceased.
6. ' It may be seen that accused Muhammad Khan challenged his conviction before Peshawar High Court by way of Appeal No,79/97. Since complainant Muhammad Younas was not in Pakistan, Habibur Rehman, uncle of the deceased, feeling aggrieved, filed Revision Petition No,38/97 before Peshawar High Court. Both these matters alongwith similar cases were eventually decided by Division Bench through consolidated Judgment dated 30th October, 1997, presently assailed.
7. Cr.Ps .1-P and 2-P/98 ' Facts being common briefly mentioned are that on 20th August, 1993 at 15-20 hours complainant Noor Badshah lodged F.I.R. No,11 with Levy Post at Khar under section 302/148/149, P.P.C. It was alleged that accused were constructing stairs over public path extending towards their house.
8. Complainant prevented them from said construction which was narrowing his passage. At this all the five accused, armed with 'Dandas' and fire-arms started beating the complainant. Accused Jehan Bakht took out a pistol and fired at deceased Anwar Badshah who later succumbed to his injuries. Besides complainant, the occurrence was witnessed by P.Ws., Muhammad Riaz, Abdul Maboob, Fazal Manan. Accused Jehan Mulk, Suhail Arshad and Shamas Tabrez were arrested.
9. However, remaining two absconding accused, namely, Jehan Bakht and Sultani Mulk were subsequently arrested and supplementary challan submitted against them. Accused Shamas Tabrez has died. After the completion of investigation accused were sent up for trial before Sessions Judge/Zilla Qazi, Malakand Agency at Bat Khela. The accused showed ignorance about the incident and claimed to be innocent. The prosecution examined 13 P.Ws., in the case. After the conclusion of trial, trial Court acquitted the accused/respondents from the murder charge, but held them responsible to pay 'Diyat' amount of Rs,2,15,000 to the complainant party vide judgment dated 23rd October, 1996.
10. ' The accused preferred Appeal No,328/96, whereas petitioner filed Revision No,131/96 for enhancement before Preshawar High Court. The High Court consolidated similar 17 appeals/revisions and decided the same through common judgment dated 30th October, 1997, which has now been assailed.
11. Cr. P . 10-P/98 ' On 20th October, 1993 at 10-00 a.m. Complainant Mirza Gul son of Pazir Gul resident of Dobandi, District Malakand, lodged a report with P.S. Dargai, which was registered as F.I.R. No,125, stating that his sister Shero Jan was married to Zahir Shah some four years ago. There was no issue out of wedlock and Zahir Shah contracted another marriage, whereupon relations between Zahir Shah and his sister Shero Jan became strained.
12. ' On the fateful day, complainant heard about death of her sister. On reaching the house of Zahir Shah, complainant learnt that persuant upon long standing unpleasant relations between the spouse, accused Zahir Shah, under pre-planned scheme, murdered Mst. Shero Jan in the mid- night of 19/20th October, 1993. The case was sent up for trial before the Additional Sessions Judge/Zilla Qazi at Dargai. Accused was charge-sheeted but he denied the charge. The prosecution produced four witnesses. P.W. 1, Dr. Tila Muhammad, described presence of injuries on the body of deceased Mst. Shero Jan. Chest X-ray was also taken which was found normal. The injuries were found to have been caused with blunt weapon. Death was caused by violence and use of force, bursting the gall bladder. The evidence proved that dead body of Mst. Shero Jan was found in the house of the accused. Therefore, applying the principle of Shariat, trial Court directed administration of oath to accused and held him responsible for 'Diyat' money, vide its judgment dated 13-6-1995.
13. ' The accused aggrieved by the said judgment filed Criminal Appeal No,278/95 before the Peshawar High Court, whereas Mirza Gul, complainant, also filed Revision Petition No,114/95 challanging above decision. These matters along with identical cases were decided through common judgment dated 30th October, 1997 assailed through present petitions for leave to appeal.
14. Cr.P. 11-P/98 ' On 7th September, 1993 at about 6-30 p.m. Respondent No,1 Muhammad Shuaib, and respondent No,2, Shabber, attacked with fire-arm deceased Yaseen who was travelling between village Shapin and Tafaqira, within the limits of Khwazakhaila. Two persons, namely, Shabber and Mst. Sherzada, who were accompanying the deceased, escaped from the firing and witnessed the occurrence.
15. The motive is blood fued between the parties. The prosecution examined ocular testimony of Mst.
16. Sherzada and Shabber besides circumstantial material. They were examined under section 342, Cr.P.C. They made statement on oath within the purview of section 340 (2), Cr.P.C. And claimed to be innocent. Accused asserted that they were in the Province of Balochistan when the incident took place, and relied upon the statement of Bakht Zamin Khan, ASI, Court Witness No,
1. The learned Additional Sessions Judge/Zilla Qazi, Sawat disbelieved the ocular version, but keeping in view the blood fued between the parties, he declared complainant side to be entitled to the right of Los/Qasamat' and held the accused liable to the payment of Rs,2,15,000 as Diyat money. Both the accused filed Criminal Appeal No,285/96 before Peshawar High Court against the conviction and sentence, which was eventually accepted through common judgment dated 30th October, 1997 directing them to be set at liberty. Hence this petition for leave to appeal.
17. We have heard learned counsel for the parties at considerable length. Following points of legal importance have been raised:--
(i) Whether the Court of Sessions Judge/District Qazi, while deciding criminal case, is bound by the principles laid down in Qanun-eShahadat Order, or may adopt its own procedure on the ground of deciding the matter in accordance with ' Sharia'?
(ii) Whether or not, on disbelieving the prosecution evidence, the Court would be competent to decide the matter on oath instead of proceedings under Tazir?
(iii) Whether or not "Qisamat" in the event when incident is reportedly unseen or evidence is insufficient would constitute a valid mode of proof against accused persons?
(iv) Whether even on the failure to establish accusation against the accused the administration of repeated oath in specified manner can be deemed sufficient to hold the accused party, liable for payment of 'Diyat money' on the discretion of Trial Court/District Qazi?
(v) Whether Peshawar High Court while deciding various matters has seriously erred in ignoring to consider prosecution evidence, which in some of the cases, constituted sound basis for holding the accused responsible for commission of offence; if so what would be its effect?
(vi) Whether the impugned judgment of Peshawar High Court enunciates correct principle of law with regard to application of Qanun-e-Shahadat Order and Shariat Laws in the Tribal areas? And
(vii) Whether Peshawar High Court while deciding legal questions could direct acquittal of accused persons without resorting to material on record, and what would be its effect?
18. ' The above legal points are obviously of first impression, and are likely to affect a large number of cases, therefore, require detailed examination. Accordingly, leave is granted. Notice be issued to the respondents and the State. Since the outcome of these cases may affect even majority of pending cases, it would be appropriate if appeals, after completion of necessary formalities, are fixed for regular hearing within two months.