This judgment will dispose of Criminal Appeal No,680 of 1999 as well as Criminal Revision No,484 of 1999 as both arise out of common judgment dated 30-6-1999 rendered by Mr. Mehmood Ahmad Shakir Jaja, Civil Judge/Magistrate Section 30, Hafizabad, whereby, he convicted Amjad Hussain under section 336, P.P.C. And ordered that his right leg be amputated up to knee as a Qisas under section 324, P.P.C. Also imposed a fine of Rs,20,000, in default thereof, to undergo R.I. For four months. Shabbir Hussain was convicted under sections 336, 324/34, P.P.C. Read with section 109, P.P.C. And sentenced to undergo five years' R.I. With a fine of Rs,10,000 in default whereof, to undergo R.I. For two months. Afzal Hussain was convicted under sections 336, 324/34 read with section 109, P.P.C. And sentenced to five years' R.I. Also with a fine of Rs,10,000 in default thereof to undergo R.I. For two months.
2. The prosecution case in brief is that the complainant Zubair Hussain alongwith his son was standing at the bus stop of his village on 4-6-1997 at about 4-00 p.m., suddenly Amjad Hussain alongwith an unknown companion both armed raised Lalkara and simultaneously fired at Riaz Hussain with his .12 bore repeater gun which hit him at the calf of right leg. Second fire was shot by his companion which also hit on the same leg. Again the fire was repeated by Amjad Hussain which hit the right thigh of Riaz Hussain who fell down. The occurrence was witnessed by Nasir and Azhar and the complainant's son was saved on their intervention. Both the accused persons fled away from the place of occurrence. The occurrence took place at the instance and abetment of Shabbir Hussain and Afzal Hussain appellants.
3. The motive was stated to be that about one and a half months ago, Ijaz Ahmad younger brother of Riaz Ahmad had divorced Mst. Munawar Bibi sister of Amjad Hussain accused-appellant. From that day onward, the appellant had grudge against the complainant's family. After receipt of injury, Riaz was removed to the hospital but subsequently his leg had to be amputated.
4. The complaint was lodged under section 324/109/34, P.P.C. With the Police Station. The appellant Amjad Hussain accused who remained absconder for some time, subsequently was arrested who led to the recovery of .12 bore repeater gun during his custody. A separate case under section 13/20/65 of Arms Ordinance was registered against him. The companion of the appellant could not be traced, therefore, he was proceeded under section 512, Cr.P.C. And as such incomplete challan was submitted against the appellant and his co-accused Shabbir Hussain and Afzal Hussain appellants.
5. The prosecution in support of its case examined witnesses as well as submitted relevant incriminating documentary evidence comprising of various recoveries effected from the place of occurrence and also at the instance of the appellants. After close of the prosecution case, all the three appellants were examined under section 342, Cr.P.C. They denied the various allegations against them. However, did not produce any evidence in defence nor they themselves appeared as witnesses as envisaged under section 340(2), Cr.P.C.
6. Muhammad Inayat P. W.1 furnished the eye-witness account and deposed that he was sent by Nazir and Zubair to Shabbir Hussain appellant to effect a compromise but they refused to accede to the demand, rather they threatened that what to speak of forgiving, they intend to murder Riaz and Zubair. As such he is solitary witness who furnished the evidence of abetment against Amjad Hussain and Afzal appellants in the commission of the crime.
7. Riaz Hussain injured appeared as P.W.2. He stated that he was standing alongwith his father Zubair at Lakhia Adda Bus Stop. Amjad Hussain accused armed with .12 bore repeater gun along with an unknown person armed with .12 bore gun reached the spot. Amjad raised Lalkara that he should not be spared. He ran to save his life but was chased by Amjad who fired a shot with his 12 bore repeater gun hitting him on the right calf. The second fire was shot by his companion which also hit the same leg. Amjad fired a second shot which hit his left thigh. Amjad Hussian accused made escape from the place of occurrence raising Lalkara. The motive was stated to be that daughter of Shabbir Hussian and sister of Amjad and Afzal accused was married to Ijaz, his younger brother, who divorced her about 1-1/2 months ago. To take the revenge Riaz was attacked, caused injuries and according to him the same had been done with the abetment of Amjad and Afzal appellants. He was removed to the Civil Hospital, Hafizabad and thereafter, referred to Mayo Hospital, Lahore.
The bone of the leg was damaged and fractured, therefore, his leg was amputated, as such he was disabled for rest of his life.
8. The next witness who furnished the eye-witness account is Zubair complainant P.W.3. He made statement similar and identical to P.W.2. Both these witnesses as such supported each other on all material points.
9. Dr. Zameer-ul-Hassan, P.W.5 medically examined Riaz and stated that on 4-6-1997 at about 5- 45 p.m. He examined the injured and noted the following injuries:--
(1) A wound 12 c.m. x 7 c.m. On front and upper part of right leg. Tissues of the leg were cut and bone was broken. This was a wound of entry.
(2) A wound 16 c.m. x 6 c.m. Back side of right leg whereby muscles were torn out. Corresponding hole in the blood-stained loin-cloth was present.
(3) There were 6/8 injuries of 1 c.m. x 1/2 c.m. Each. Scratch on the upper part of right leg was also noted.
(4) There were multiple injuries numbering 6 of 3/4 c.m. x 1/2 c.m. On the thigh of upper part of left leg. There was no exit wound of these injuries.
The injury No,1 was declared as "Ghair Jaiffah Hashimah". All the injuries were kept under observation. They had been caused within a duration of one hour.
10. The patient was referred to the Mayo Hospital as his condition was serious. He attested the M.L.C.
Exh.PC issued by him.
11. Muhammad Iqbal, S.I., P.W.6 conducted the investigation and stated about the various details of the investigations. He recorded the statements of the witnesses and obtained medical certificate of the injured person. Amjad Hussain was not available, therefore, warrants of his arrest were obtained. He prepared incomplete challan on 4-7-1997. The investigation was thereafter, taken up by Faiz Ahmad, Sub-Inspector who arrested Amjad Hussain and got recovered .12 bore repeater gun at his instance.
12. Dr. Zar Naggar from Orthopaedic Ward, Mayo Hospital was examined by the prosecution who stated that Riaz had multiple injuries on his leg which had been fractured and injury being very deep and muscles had been severely damaged, therefore, right leg up to the knee had to be amputated.
13. The rest of the witnesses are formal in nature.
14. As already observed that the appellants pleaded not guilty and stated that Riaz was dealing in heroin and as such he owed money to number of persons, therefore, he had been fired at by some unknown person but on account of enmity, he falsely implicated the appellants.
15. On conclusion of the trial as detailed above, all the three appellants were convicted and sentenced by the learned trial Magistrate. As the substantive sentence was ten years' R.I. And also the leg of Amjad Hussian accused appellant was ordered to be amputated as Qisas, therefore, first appeal was moved before this Court.
16. The learned counsel appearing on behalf of the appellants argued that there is practically no evidence of abetment against Shabbir and Afzal, the only witness produced in this behalf is P. W.1. A bare perusal of his evidence would show that same does not inspire confidence and is unbelievable. Even if it is accepted that threat was extended to him, it does not amount to abetment in any manner. To constitute the liability for abetment there should have been some evidence to the effect that the offence was committed at the instance of the appellants and they had supported the same or provided some material, as a result of which the same has been committed. Since no evidence in this behalf has been brought on the file, therefore, conviction of both the appellants is not at all maintainable and they are entitled to be acquitted. The learned counsel appearing for the complainant as well as State could not refute the same and as such do not seriously oppose the appeal to the extent of these two appellants i,e, Shabbir Hussain and Afzal.
I find that there is no material or evidence justifying their conviction, therefore, the appeal to their extent is accepted, their conviction and sentence is set aside and they are therefore, ordered to be released forthwith if not required in any other case.
17. As regards Amjad Hussain appellant, he alongwith his unknown companion who could not be traced even uptil today, came armed with repeater gun and caused successive injuries on the left leg of Riaz Hussain. The injuries were of such a grave nature which could not be cured or treated, therefore, his leg up to the knee had to be amputated, as such he has been disabled for rest of the life. Both the prosecution witnesses have made consistent statements and they have supported each other on all material points. Their evidence is also supported by the medical evidence and also with the motive which has not even been denied, that sister of Amjad accused had been divorced by brother of Riaz, therefore, he mounted an attack, as such the prosecution version is not only supported by the medical evidence but also by the evidence of motive as well. Amjad Hussain accused had caused injuries with fire-arm on the person of Riaz. It is a broad day incident which has no question of mistaken identity nor there is any possibility of substituting the appellant with any one else. The prosecution as such has proved its case beyond any doubt. The conviction recorded by the learned trial Magistrate, is therefore, upheld and maintained.
18. The learned counsel for the appellant on a second reflection does not challenge the conviction of the appellant. However, he has argued with vehemence that order of amputation of leg of the appellant as Qisas is not executable. Section 333, P.P.C. Defines Itlaf-i-Udw, as dismemberment, amputation, severing any limb or organ of the body of another person. Under section 334, P.P.C.
Punishment of Itlaf-i-Udw has been described. Section 334, P.P.C. Is reproduced for reference as below:-- "334. Punishment for Itlaf-i-Udw.--Whoever by doing any act, with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person cause Itlaf-i-Udw of any person, shall, in consultation with the authorized Medical Officer, be punished with Qisas, and if the Qisas is not executable keeping in view the principles of equality in accordance with the Injunctions of Islam, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as Ta'zir." Under this section maximum sentence provided for the offence is ten years as Ta'zir and also provides the punishment as Qisas and similar hurt or dismemberment or amputation of that part of the body, has to be carried out. In case the same is not executable then the offender is liable to pay Arsh and to be punished with imprisonment of either description which may extend to ten years as Tazir.
19. Apart from that, section 337-M and 337-N, P.P.C. Also provide details of the cases wherein, hurt has not been held to be liable to Qisas. The case of Amjad Hussain accused-appellant is not covered either by section 337-M or 337-N, P.P.C. However, it is contended with all vigour that execution of Qisas is not possible. According to the learned Magistrate the doctor has stated that Qisas in the present case is possible and leg can be amputated but the learned counsel for the appellant is of the view that it is not a case where directly the leg has been amputated or Itlaf-i- Udw has been caused by the accused. A fire-arm injury was caused on leg, as a result of which the leg has to be amputated. Qisas according to Islamic Law means similar treatment or similar hurt caused to the person responsible for the hurt. In the present case, amputation or dismemberment has not been caused by the appellant. It had to be carried out because it was opined by the doctor that treatment of the injury was not possible and the only way to save the life of the injured was to get his leg amputated up to knee. The learned Magistrate by basing his judgment on the opinion of the doctor has ordered the amputation of leg as according to him the same was possible. While punishing a person with Qisas, word of penal section has to be very strictly construed. Section 334, P.P.C. Mandates that if an offender caused Itlaf-i-Udw of the victim, shall be punished with Qisas, of course in consultation with the authorised Medical Officer but the Qisas has to be ordered only by keeping in view the principles of equality in accordance with Injunctions of Islam. According to the Injunctions of Islam, Qisas has to be in equal terms, it can neither be more nor less. The offender has to be meted out with same treatment as has been done to the victim. In this case the offender fired a shot with gun which severely damaged the leg of the I victim. According to the prosecution itself, he is not the only person who fired shot at his leg. Similar injury has been attributed to his unknown co-accused as well. It is not possible to determine that amputation was necessitated on account of injuries caused by the appellant alone or the same was attributed by the injury caused by his absconding co-accused as well. Admittedly, both the accused persons fired from their respective guns which landed on the same leg of the victim and the leg was amputated. Now in the present case firstly it cannot be conclusively held that amputation was caused as a result of injury caused by the appellant alone. If someone else contributed in the injury or causing the hurt, as a result of which the amputation or dismemberment is caused, then in my view the appellant alone cannot be held responsible. Therefore, the amputation of leg of the appellant C alone because his co-accused is absconding, would not be just and proper. Apart from that it does not appear to be possible or executable that a fire should be shot from a repeater gun by the victim at the leg of the appellant with the same force and intensity. Repeater gun is a weapon from which precisely similar injury of the same intensity and magnitude is not possible, therefore, I am of the view that similar hurt cannot be caused by the injured at the person of the appellant. Therefore, the execution of Qisas is not possible.
20. The law has taken care of this situation in this section itself. According to section 334, P.P.C. If Qisas is not executable then alternate punishment has been prescribed, which is imprisonment for a description which may extend to ten years as Ta'zir and also payment of Arsh.
21. Section 337-Q, P.P.C. Lays down Arsh for causing itself of an organ which is found singly in a human body and same has been held to be equivalent to the value of Diyat. The next section i,e, 337-R, P.P.C. Provides that Arsh for causing Itlaf of organs found in a human body in pairs shall be equivalent to the value of Diyat and if Itlaf is caused to one of such organs the amount of Arsh shall be one-half of the Diyat. Obviously legs are organs which are in pairs. One leg of Riaz has been amputated, therefore, he is entitled to receive Arsh which will be half amount of Diyat. As already noted section 334, P.P.C. Provides 10 years' imprisonment as Tazir. According to the learned counsel following the principles laid down in section 337-R is that amount of sentence of imprisonment shall also be computed similarly. Meaning thereby, if both the legs are dismembered or amputated, sentence would be ten years and in case one is amputated, the sentence would be half of ten years i,e, five years. I am not convinced with the analogy drawn by the learned counsel for the appellant because under section 334, P.P.C. No such distinction has been created for Itlaf-i- Udw. The sentence provided is ten years' imprisonment, they may be for Itlaf-i-Udw of one organ or both. However, to compute the sentence, a Court can keep in mind that in case one of the organs is dismembered or amputated then the same may be considered as a circumstance in favour of the accused but it cannot be claimed as a matter of right that in case of dismemberment or amputation of one organ of the body, the maximum punishment would be five years. I am not convinced and repel the argument.
22. While concluding the above discussion, I am satisfied that the prosecution has proved the case against Amjad Hussain accused-appellant beyond doubt. His conviction under section 336, P.P.C. Is proper and the same is upheld and maintained. However, considering that the sentence of Qisas is not executable, I set aside the same and awarding the alternate sentence of imprisonment as Tazir, sentence the appellant to undergo seven years' R.I. The appellant is also liable to pay Arsh which is half of the Diyat. The occurrence was committed in the year 1997 and the amount of Diyat in that year was Rs,2,12,664. So he is ordered to pay Rs,1,06,332 as Arsh, failing which he will remain in jail and would undergo S.I. Till the payment of amount of Arsh.
23. By taking into account the relevant facts and circumstances of the case, I am of the view that the appellant is not entitled to the benefit of section 382-B, Cr.P.C. The same as such is not extended to him.
24. Resultantly, the appeal to the extent of Shabbir and Afzal is accepted and they are acquitted of the charges against them. However, appeal to the extent of Amjad Hussain is dismissed with modification of this sentence. Sentence of Qisas is not confirmed.
25. For the reasons recorded, I find no force in the Criminal Revision, which is dismissed. 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.