' ABDUR REHMAN KHAN, J.---This judgment will dispose of the above two matters as the former is an appeal as of right under Article 185(2)(a) of the Constitution which impugns the legality of the judgment of Balochistan High Court delivered on 5-10-1999; whereby an appeal filed by the State and also the complainant the judgment of the learned trial Court acquitting the appellant of the offence under section 302(b), P.P.C., was set aside and the appellant was convicted under the said section and sentenced to imprisonment for life. The later is a petition by the complainant for enhancement of the sentence to death.
2. The facts stated in the first information report lodged by Haji Bismilla, complainant (P.W.1) on 7- 5-1994, at 8-15 a.m. About the incident which had occurred the same day at 8-00 a.m. Are that on that very day at 7-30 a.m. He alongwith Daud Shah, Muhammad Raza, Ahmed Shah and Abdullah started from the house in their vehicle, Land Cruiser No,173-165 Karachi, in order to bid farewell to certain Hajian. When they reached Telephone Exchange at 8-00 a.m. They saw Abdul Ali appellant alongwith Muhammad Khan and Musa Khan sons of Ramzan and Waris, Abdul Hakim, Tahir sons of Muhammad Khan alongwith 6-7 other persons whom, he could identify standing on the road side.
Abdul Ali signalled them to stop and they stopped the vehicle. Abdul Ali and his accomplices attempted to abduct them on gun-point, but they resisted and on their resistance Abdul Ali having a Kalakofe and his associates armed with pistol started firing at them, hitting his brother Daud Shah and Muhammad Raza in the chest and Ahmed Shah on the left leg. Daud Shah died on the spot while Muhammad Raza and Ahmed Shah in injured condition were taken to hospital where Muhammad Raza succumbed to his injuries and Ahmed-Shah is lying in the hospital. The vehicle was taken by Abdul Ali and his cronies while decamping from the spot.
3. Motive for the crime was that an altercation had taken place between his brother Daud Shah and nephew of Abdul Ali on certain matter and Daud Shah had given a blow on the head of nephew, of Abdul Ali, named as Shah Muhammad.
4. The prosecution relied for conviction on the ocular account of the eye-witnesses. P.W.1 Haji Bismillah who had lodged the report and confirmed in his Court statement whatever had been narrated in the F.I.R. He further explained the role played by each accused in this manner:- ' "Accused Abdul Ali gave a lalkara that to pick them up and put them into vehicle, but oftour resistance, they failed. Whereafter the accused present in the Court fired at Said Shah who died at the spot. Accused Shah Muhammad fired at Haji Muhammad Raza and killed him, again said that Haji Muhammad Raza died at hospital. Ghaffar made firing and hit Ahmad Shah on his leg and the others attached with stones and sticks. Convict Gul Barah pulled me and Allah Dad between me with butt of kalashnikov and said to pick him. Zubair made pistol fires upon me but God saved me."
' P.W.2 Ahmed Shah, an injured witness, is another eye-witness who deposed about the main occurrence in this way:- ' "Abdul Ali fired at Daud Shah on his chest he fell down and died instantly. Shah Muhammad fired with pistol upon Haji Muhammad Raza and injured him who was shifted to hospital and he died at hospital. Accused Abdul Ghaffar alias Pukkar and the accused Abdul Ali present in the Court caught hold me from my collar and Abdul Ali who is present in the Court asked accused Abdul Ghaffar to kill him and as such Abdul Ghaffar attacked upon with pistol and I also fell down."
' P.W.3 Akhtar Jan has also given ocular account of the incident. His statement about the role played by the appellants is to this effect:-- ' "Abdul Ali accused present in the Court gave a lalkara that pick them and put them and about them but the abovenamed persons resisted and after the accused persons failed to abduct them the accused Abdul Ali fired at Daud Shah who died at the spot. Shah Muhammad accused fired at Haji Muhammad Raza who died at the hospital. Accused Ghaffar fired upon Ahmad Shah and injured him "
' P.W.4 Ubaidullah has also given eye account of the occurrence and he described the role played by each accused of the incident as under:-- ' "Accused Abdul Ali made a fire with Kalakofe upon Daud Shah and killed him. Accused Shah Muhammad fired with pistol which hit Haji Raza Muhammad who injured and later on died at hospital. Accused Ghaffar also made firing whose six bullets hit Ahmed Shah who also became injured and shifted to Quetta Hospital."
5. P.W.5 Haji Abdul Zahir is a marginal witness to the recovery memo. Of articles taken into possession from the spot. P.W.6, Amin Muhammad, Sub-Inspector is another witness to the recovery memo. From the spot which consisted of one empty of .32 bore pistol, two empty shells of Kalakofe and two shells of .32 bore. A live bullet and the vehicle was also taken into possession. He also verified, as marginal witness, recovery of five empty shells and clothes and articles belonging to the deceased and injured witness. Syed Ikram Hussain Zaidi P.W.7, S.-I. Police Station Civil Lines, is the Investigating Officer who deposed to the various steps taken by him in the investigation and the recovery from the spot. P.W.8, is Inspector of Police who arrested the appellant on 10-7-1997, P.W.9 is Police Sub-Inspector who had accompanied P.W.8 to arrest the appellant. The appellant, when examined under section 342, Cr.P.C. Pleaded alibi as according to him he remained admitted in the hospital from 4-5-1994 till 10-5-1994, and then came to village where he came to know of the occurrence, but then went to Kabul in connection with his business and denied involvement in the crime. The appellant examined D.W.1 Dr. Shabbir Ahmed, D.W.2 Sardar Muhammad, D.W.3 Ghaza Khan and D.W.4 Walidad who deposed to the admission in the hospital of the appellant and his illness.
6. It appears from the impugned judgment that the High Court accepted an application under section 428, Cr.P.C. For additional evidence submitted by the prosecution before it and then examined P.W.11, the Doctor who had medically examined P.W. Ubaidullah on 7-5-1994.
7. The learned counsel representing the appellant argued that the High Court had no jurisdiction to hear the appeal as the appellant was charged in the F.I.R. Under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (henceforth to be referred as Ordinance). He clarified that in the challan filed in Court under section 173, Cr.P.C. And in the heading of the charge section 17(3), Harabba has been entered and that the substance of the charge if read as a whole it appears to include the charge of Harabba. The learned counsel complained of the composite nature of the charge as he was of the view that on each incriminating item a distinct charge should have been framed. The learned counsel then referred to the statements of P.W.1, P.W.2 and P.W.3 who all have stated about the snatching of the vehicle and its taking away. He also referred to the judgment of the trial Court wherein it is mentioned that "the alleged Land Cruiser of the complainant was taken into possession near the border." It was on these premises that the learned counsel stressed that the impugned judgment be declared as without jurisdiction and the High Court be directed to return the appeal to be presented before Federal Shariat Court. He relied on the following reported Judgments in support of his viewpoint:--
(i) M.M. Gandhiu v. State of Mysore AIR 1960 Mysore 111;
(ii) Nadir Shah v. The State 1980 SCM R 402;
(iii) Shah Nawaz v. The State 1992 SCM R 1583;
(iv) Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308, and
(v) Allah Din and 18 others v. The State and another 1994 SCM R 717.
' The rule laid down in AIR. 1960 Mysore 111, even remotely does not apply as that relates to omission in the charge and the prejudice caused by such a lapse. The learned counsel does not complain of any such omission nor of any prejudice on this count as it is not his case that he should have been charged of offences under section 17 of Haraba and that the failure of the prosecution to charge or try him under the said section has prejudiced him. 1980 SCM R 402, has also no application as that lays down that. "The Legislature never intended that the errors committed in 'stating either the offence or the particulars required to be stated in the charge or omission in that behalf, be regarded as material unless the accused was in fact misled by such errors or omissions and further, it also occasioned a failure of justice-. But it is not the case of the learned Advocate that the failure of the trial Court to charge the appellant under section 17 of the Ordinance, has caused miscarriage of justice. The appellant should rather be pleased/satisfied that he was neither charged under section 17 of the Ordinance nor tried thereunder. 1992 SCM R 1583 is also about error committed in stating either the offence or particulars of the charge and its implication. 1982 PCr.LJ 2308 and 1994 SCM R 717, are on the point that Special Court would determine its jurisdiction on the basis of allegations in the F.I.R. And other material relied on the prosecution at the time of presentation of challan. The argument of the leaned counsel is not that the trial Court had no jurisdiction to try the offences in the challan submitted under section 173, Cr.P.C. Or in the charge- sheet, as framed/drawn by the Court but his objection is that the charge should have included section 17 of the Ordinance. It is curious to note that the learned Advocate wants that the appellant should have been charged and tried for the offences for which he is neither charged nor convicted.
Moreover, this argument is also in conflict with the other submissions of the learned Advocate noted earlier. It is, therefore, not understandable as to how the appellant was prejudiced for the omission of to charge him under section 17 of the Ordinance and not to convict him thereunder. It was at one stage suggested to the learned counsel that if he desires that appellant be charged under section 17 of the Ordinance and be tried under it, then the matter can be considered after hearing the learned counsel appearing for the State. But he did not agree. This argument that section 17 of the Ordinance having been mentioned in the in the heading of the charge and although in latter portion of the charge the appellant was not charged thereunder and so was not tried, but even then it should be deemed that the appellant was charged and tried under section 17 is unique in its nature. How the Court should presume about the existence of a fact which is not discernible from the documents/evidence brought on record.
8. It is to be noted at this stage that the learned counsel for the appellant when started arguments about the point of jurisdiction then he was asked to inform whether the point of lack of jurisdiction was raised in the trial Court at the time of trial or in the High Court at the time of hearing the appeal then his reply was in the negative. Therefore, an objection which could have been taken at the time of framing the charge that section 17 of the Ordinance should be added to the charge and the appellant be tried under it, was not taken at both the said stages and obviously it was not taken for the reason that the appellant never wanted to be charged or tried for such a heinous offence. This objection could also be taken at the time of hearing of appeal but admittedly it was not raised at that stage also. It is salutary principle of law that an objection about jurisdiction/competency of a forum should be raised at initial stage in order to avoid complication/inconvenience which may arise ultimately in the reversal of the entire process. Therefore, even if it had been found that the High Court had no jurisdiction to hear the appeal, even then the appellant could not be permitted to raise such an objection at this stage on account of the principle of estoppel which would operate against him because of his acquiescence/silence and particularly when otherwise in this case the trial Court/Sessions Judge and the High Court as such did not lack jurisdiction in the matter. Learned counsel appearing on behalf of the complainant while controverting the above submission relied on a judgment of Federal Shariat Court reported in "Nizam-ud-Din v. The State"
(1999 PCr.LJ 1761) wherein it has been obsery ed:-- ' "No doubt in pursuance of Article 203-DD of the Constitution appellate criminal jurisdiction against the order of Sessions Judge holding trial under the 'Hudood Ordinance' has been conferred upon this Court vide second proviso to section 24(1) of the 'Hudood Ordinance' yet, as per our estimation, in all those cases, in which, neither the accused has been charged with any of the offences punishable under the 'Hudood Ordinance' nor has he been tried or convicted thereunder, an appeal against the order/judgment of the Court of the first instance shall not lie before the Federal Shariat Court."
' In view of the above discussion the objection about jurisdiction by the learned Advocate of the appellant is neither maintainable on merits nor on the basis of principle of estoppel.
' Learned counsel then submitted that in this case the appellant was tried for two mureders and four murderous assault but it was curious that he has been convicted and sentenced on one count. It is incomprehensible as to what the learned counsel aims at in advancing such an argument which rather goes against the appellant. If the effort is to nullify all the proceedings on account of some defect in the charge which has not prejudiced the appellant but has rather benefited him then such an effort cannot succeed which merely proceeds on technicality and not to advance the ends of justice. The learned counsel cited many judgments in support of this argument but in view of the above clarification all these judgments need not to be referred. One of the such judgments relied on is "Babulal Chaukhani v. King-Emperor" AIR 1938 PC 130 which lays down:- ' "Then it was contended that the charge of theft was not properly framed because it alleged a multiplicity of offences between April 1934 and 16th January, 1935, whereas the offences did not constitute a single continuing offence; they were separate offences committed on particular dates and should have been separately charged. Their Lordships feel that the form of the charge was most irregular and regrettable and one which should be avoided. But they cannot regard this objection as one which in the circumstances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corroborated in all necessary respects. There was no miscarriage, of jusitce. In addition the irregularity was such as could be, and was cured under sections 225 and 537 by the finding that the accused had not been prejudiced."
' The second judgment "Nadir Shah v. The State" (1980 SCM R 402) lays down that an error committed either in stating the offence, or particulars of the offence in the charge would not be material unless it is shown that the accused was misled by such an error or omission and that it has caused miscarriage of justice. This judgment would also not help the appellant as the appellant has gained by the alleged error in the charge and it has not harmed him. The learned counsel then submitted that the learned Judges of the Division Bench, who heard the appeal, were biased against the appellant as the same Division Bench had heard the appeal of the co-accused and after expressing their opinion about the merits of the case had dismissed the appeal, therefore, this Bench should not have heard the appeal. The learned counsel for the complainant in reply submitted that this point should have been specifically pleaded in the memo. Of appeal which has not been done. Similarly it should have been raised at the time of hearing of appeal which has not been done. It was clarified that the co-accused, whose appeal was decided earlier, were tried in separate trial and that the High Court judgment against them in that appeal was maintained by this Court as reported in "Abdul Zahir and another v. The State" (2000 SCM R 406).
The learned counsel for the complainant further explained that the correct legal position is that propriety also demands that the appeal of the accused involved in the same case should be heard by the same Bench in order to avoid possibility of conflicting judgment. We agree with this submission of the learned Advocate for the complainant and, accordingly, hold that the argument about prejudice/bias is without merit. The learned counsel for the appellant also complained about recording of additional evidence by the High Court. But the learned counsel for the complainant explained that this exercise was necessitated because the trial Court had not examined the medical officer as original file had been requisitioned by this Court in connection with appeal of the co-accused. The High Court brought on record in a legal way the evidence which existed on record but could not be exhibited and made admissible on account of negligence of the Court. This has advanced the cause of justice and, therefore, no exception should be taken to this exercise of the High Court. The learned counsel then referred to the merits of the case and pointed out that two deceased Daud Shah and Muhammad Raza were killed by firing and also Ahmed Shah P.W.
Received injuries with fire-arm and the witnesses Bismillah and Ubaidullah suffered injuries with blunt means. He submitted that there was no mention of blunt injuries on the latter two witnesses and no injury sheet was prepared by the Investigating Officer as according to Investigating Officer he was not shown the injuries. The learned counsel appeared oblivious of the statement of Dr. Akhtar Muhammad (P.W.11) who was examined by the High Court for the injuries to the deceased and the injured witnesses. The statement of this witness is clear on the point that he examined the dead bodies of the deceased and the injured witnesses on the same day and noted the injuries suffered by them. If due to inadvertence/negligence of the trial Court this witness was not examined at the trial, then the prosecution could be blamed for it. The cross-examination of this witness rather further confirmed his statement made in examination-in-chief and nothing could be brought in cross-examination to show that he has not examined the witnesses for their injuries on the day of occurrence or that the injuries were manipulated/fabricated. It is thus obvious that if the Investigating Officer due to negligence/inadvertence did not note the injuries on the day of occurrence then it could not be said that the witnesses did not suffer the injuries as the Doctor has verified the existence of the injuries on the day of occurrence in his statement in Court. The learned counsel then pointed out to the difference in the statements of the witnesses about their injuries but in view of the statement of Medical Officer this argument loses significance. The delay in recording the statements of the eye-witnesses under section 161, Cr.P.C. Is obviously because of the negligence/lapse of the Police Officer as in spite of the fact that the witnesses all along were available to the Police but they failed to record their statements.
' In any case, one thing is clearly borne but from the record that the charge against the appellant of having effectively fired at the deceased Daud Shah is consistent as all the eye-witnesses have deposed to it. The medical evidence supports this charge. This charge is further supported by the abscondence of the appellant for more than three years in spite of the fact that according to his own statement he knew about the charge but instead of surrendering to the Police he went to Kabul in connection with his business. The learned counsel was not able to challenge this aspect of the case but instead dealt with the evidence of the eye-witnesses in respect of other accused with whom we are not concerned in this appeal as they were separately tried.
Consequently, in view of the above discussion we find no substance in the submissions made from the side of the appellant in respect of jurisdiction as well as merits of the case and, therefore, dismiss this appeal.
Criminal Petition No, 81-0 of 1999.
Criminal Petition No,81-Q of 1999, to the extent of enhancement of sentence from life imprisonment to death is dismissed as we are of the view that in circumstances of this case the discretion exercised by the High Court in awarding the lesser penalty cannot be termed as perverse or arbitrary. However, the High Court should have awarded compensation in term of section 544-A, Cr.P.C. To the legal heirs of Daud Shah deceased for whose murder the appellant was charged after having found him guilty of this murder as that was mandatory under the law. We, accordingly, direct Abdul Ali accused/respondent No,1, to pay Rs,1,00,000 (Rupees one lac) as compensation to the legal heirs of the deceased or to suffer in default six months R.I. To this extent Criminal Petition No,81-Q of 1999, is allowed.