IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.-By this judgment we propose to dispose of Criminal Appeal No,156 of 2002, filed by Ashiq Hussain son of Ali Shan, Criminal Appeal No,21.6 of 2002, filed by Sher Zaman son of Mirza Khan and Criminal Petition for Leave to Appeal No,113 of 2002, filed by Akbar Hussain son of Niaz Khan complainant against Fida Hussain, acquitted accused.
2. Precisely stating the facts of the case are that on 7th October, 1989 at about 4-40 a.m. Akbar Hussain (complainant) alongwith Muhammad Taj deceased and his son Saeed Akbar emerged out of their house with (sic) to -go to Doltala. While they were on their way in the street, they met Weer Khan P.W who was their co-villager.. He told them that Sher Zaman son of Mirza Khan, Muhammad Riaz son of Lal Khan, Ashiq Hussain .Son of Ali Shan, Muhammad Iqbal son of Raja Khan and-Fida Hussain son of Waris Khan had forcibly occupied his land while he was ploughing it with the tractor. Thereafter, they proceeded towards the land. In the way they found Martzoor Hussain P.W. Who also accompanied them. While Lal Hussain, who had arrived at the spot also joined them.
At about 5-45 a.m. When they reached on the land belonging to Weer Khan, situated towards eastern side of the village at a distance of 2 furlongs, they saw that Muhammad Iqbal accused is ploughing the land with his tractor, while Sher Zaman armed with a .12 bore gun, Muhammad Riaz armed with .32 bore revolver and Ashiq Hussain armed with Carbine are standing in south-western side of the land whereas Fida Hussain armed with 7inm rifle was standing on eastern side of the land in alert position for the purpose of providing protection to Muhammad Iqbal. As soon as Manzoor Hussain went near Muhammad Iqbal and suggested to him to stop ploughing the land, he raised Lalkara exhorting them. To kill the complainant side. Simultaneously, Sher. Zaman fired with his .12 bore gun at Manzoor Hussain P.W., which hit him on the right buttock and he fell down. In the meanwhile, Muhammad Riaz, Ashiq Hussain and Sher Zaman started indiscriminate firing. Ashiq Hussain accused tired from his Carbine at .Saeed Akbar hitting him on his right eye and left shoulder. Fida Hussain, who was armed with 7 mm rifle hit Muhammad Taj on his thigh close to his right buttock, who fell down and became unconscious. This attracted the men and women of the village to the spot. The accused after the commission of the offence, managed to run away on tractor towards the village side, while firing continuously and raising Lalkaras. The occurrence was witnessed by Akbar Saeed, Manzoor Hussain, Lal Hussain and Weer Khan. Motive for the commission of offence as stated in the FIR., was that Weer Khan who was weaver of the village had purchased the land from Manzoor Hussain and Mst. Ajaib Sultana and was in its possession since 5/6 months and was cultivating the same. That the accused party also claimed having title in the land obtained from Mst. Kaneez Fatima, mother of Manzoor Hussain P.W. Investigating Agency completed the investigation, where after the accused were arrested and were sent up to face trial.
As they did not plead guilty to the charge, therefore, prosecution led evidence to substantiate accusation against them. On completion of trial, learned trial Court vide judgment dated 18th May, 1992 recorded following .Conviction/sentences against the accused persons:--- Sr No,Name Offence proved against them Sentence awarded
1. Fida Hussain Under section 302, P.P.C. Sentence awarded. Sentenced to life imprisonment with direction to pay fine of Rs,20,000. In case of default in the payment of fine, he was directed to undergo one year R.I.
He was also directed to pay Rs,20,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to undergo another R.I. Tor six months.
2. Sher Zaman Under section 307, P.P.C. Sentenced to 7 yearsR.I. With fine of Rs,5.000.
In case of default in the payment of fine, he was directed to undergo R.I. For four months. He was also directed to pay Rs,5,000 as compensation to Manzoor Hussain injured under section 544-A, Cr.P.C. Or in lieu thereof to undergo further R.I. for four months.
3. Ashiq Hussain Under section 307, P.P.C. Sentenced to 7 yearsR.I.
307, P.P.C. With fine of Rs,5,000 or in default thereof, to undergo four monthsR.I. He was also directed to pay Rs,5,000 as compensation to Saeed Akbar injured or in case of default in the payment of compensation he was directed to further undergo 'R.I. for four months.
4. Muhammad Iqbal and Muhammad RiazNil Acquitted by extending them benefit of doubt.
All the accused were however, allowed benefit of section 382-B, Cr.P.C. For the period during which they were undertrial prisoners.
3. Against the above-noted judgment convicts filed Criminal Appeal No,83 of 1992 whereas complainant also tiled Criminal Revision No,89 of 1992 under section 439 read with section 435, Cr.P.C. Against all the convicts. In the matter of petition at ground (g), it was stated that the learned Court has committed error in acquitting Sher Zaman and Ashiq Hussain from the commission of offence under section 302, P.P.C., similarly Muhammad Iqbal and Muhammad Riaz have been acquitted illegally. However, in the prayer clause Sher Zaman request was made that the sentence awarded to Sher Zaman and Ashiq Hussain and the sentences of Fida Hussain be enhanced to life imprisonment and capital punishment respectiv&y. Learned High Court, vide impugned judgment dated 19th March 2002 accepted the Criminal Appeal No,83 of 1992, whereby Fida Hussain has been acquitted of the charge under section 302, P.P.C. And the sentences awarded to appellant Ashiq Hussain and Sher Zaman were enhanced to life imprisonment. Concluding para. From the judgment of the learned High Court is reproduced hereinbelow:--- "31. Therefore, while we are accepting the appeal of Fida Hussain appellant and acquitting him of the charge, we are also dismissing the appeal of the appellants Ashiq Hussain Sher Zaman while upholding the order of conviction and sentence of the trial Court in this connection and while accepting the revision petition of the complainant side, we are convicting Ashiq Hussain and Sher Zaman under section 302, P.P.C. And sentencing them to life imprisonment. The sentences shall run concurrently and the appellants shall be entitled to the benefit of section 382-B, Cr.P.C."
4. Against the above order, instant proceedings have been instituted.
5. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court appearing on behalf of petitioner in Criminal Petition No,113 of 2002, stated that Fida Hussain has been acquitted by the learned High Court on the ground that Investigating Agency has exonerated him of the charge contrary to the judgment of this Court in the case of Nasir Abbas v. The State (1995 SCM R 1333).
6. Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court appearing for appellant in Criminal Appeal No,156 of 2002, stated that as in the revision petition filed by the complainant no specific prayer was made for the conviction/sentence of Ashiq Hussain as well as Sher Zaman, on setting aside the order of acquittal by the trial Court under section 302, P.P.C., therefore, their conviction/sentences by the learned High Court under section 302, P.P.C. Is contrary to the provisions of section 439 (4), Cr.P.C. He also stated that as far as the Ashiq Hussain and Sher Zaman are concerned, they had already undergone the sentences, which were awarded to them under section 307, P.P.C., therefore, under such circumstances, if at all the learned High Court was of the view that the trial Court has wrongly acquitted them of the charge, then instead of convicting them under section 302, P.P.C., their case may have been remanded to the trial Court.
7. Malik Ainul Haq, Advocate Supreme Court appearing for appellant in Criminal Appeal No,216 of 2002, has supported to the contention of the Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for appellant in Criminal Appeal No,156 of 2002. He further stated that in view of the facts and circumstances of the case, both the accused namely Ashiq Hussain and Sher Zaman deserved to be acquitted of the charge under section 302, P.P.C., because no incriminating evidence is available against them to constitute offence under section 302, P.P.C. In addition to it, he stated that because provisions of section 439(4) have been violated, therefore, judgment is not sustainable in the eye of law.
8. Mr. F.K. Butt, learned Additional Advocate-General appearing on behalf of State argued that in view of the material available before the High Court, Fida Hussain has not been rightly acquitted of the charge. He prayed for remand of the case to the learned High Court on setting aside the impugned judgment, for rewriting of the same in both the cases on account of error, which has been pointed out by learned counsel in the cases of Ashiq Hussain and Sher Zaman.
9. We have heard learned counsel for the parties and have also gone through the relevant provision of law. There is no cavil with the proposition that while exercising powers under section 439(4), Cr.P.C., Revisional Court has not been empowered to covert the findings of acquittal into conviction, meaning thereby that if the learned High Court, on having gone through the ground (g) of the memo. Of petition where the acquittal of Ashiq Hussain and Sher Zaman from the offence under section 302,. P.P.C. Was questioned, has come to the conclusion that order under challenge is not sustainable in the eye of law, then it may have remanded the case for re-trial, in view of the judgment reported as Liaqat Ali v. The State (PLD 1982 Lah. 539). Because the Revisional Court has no jurisdiction to award the sentence itself, for the offence for which accused has been acquitted of the charge. As such we are of the opinion that the sentence awarded to Ashiq Hussain and Sher Zaman under section 302, P.P.C. By the learned High Court in exercise of its revisional jurisdiction, is contrary to law.
It is also important to note that learned author Judge, while maintaining the sentence of convicts under section 307, P.P.C. Did not put forward reasonable, convincing and acceptable grounds to understand that as to why their sentences have been maintained. It is a cardinal principle of law that judgment must be speaking one, so its reader may understand with clarity, the reasons for which conviction or sentences have been maintained. Thus for this reasons as well judgment relating to the cases of Ashiq Hussain Sher Zaman is not maintainable.
10. Likewise, while accepting the appeal filed by Fida Hussain, no cogent reasons were assigned for acquitting him, in accordance with the provisions of section 307. Ci.P.C. Which casts duty upon the Court to note down the points for determination and then to record the decision. Reliance in this behalf may be placed to the case of Sahab Khan and 4 others v. The State and others (1997 SCM R 871). Therefore, a careful perusal of the impugned judgment reveals that while acquitting respondent Fida Hussain from the charge under section 302, P.P.C., perhaps the learned High Court was influenced from the reason that because the Investigating Agency had exonerated him from the charges, therefore, he was not liable for conviction. We are not in a position to subscribe to this view-point of the learned High Court, because once an Accused person has been challaned before the Court Of law under section 173, Cr.P.C. And prosecution has produced evidence against him, then it becomes the duty of the Court to decide the case in view of the material whatsoever has come on record and the Court is not supposed to follow the reports of the Investigating Agency, which are even otherwise tentative in nature. In this behalf, we are fortified with the judgment of this Court in the case of Nasir Abbas (ibid) wherein it has been held that "Courts have to scrutinize the evidence produced by the parties before it and arrive at right conclusions. Courts are not to influence by the opinion of Investigating Officers. Opinion of the Investigating Officer plays important role for submitting reports under section 173, Cr.P.C. Before the Court but not thereafter".
Same principle has been reiterated in another judgment of this Court in the case of Federation of Pakistan through Secretary Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others (1997 SCM R 299) wherein it has been held that the report submitted by the Investigating Officer under section 173, Cr.P.C. Is not binding on the Court.
Thus in view of above facts and circumstances of the case, we are of the opinion that acquittal of Fida Hussain by the learned High Court vide impugned judgment is not sustainable in the eye of law, as such same is set aside.
11. As a result of above discussion, cases are remanded to the Lahore High Court, Rawalpindi Bench, Rawalpindi for fresh decision of Criminal Appeal No,83 of 1992 filed by the accused Fida Hussain, Ashiq Hussain and Sher Zaman against their conviction and sentence, and Criminal Revision No,89 of 1992 filed by the complainant for enhancement of the sentence of the accused.
12. Criminal Petition No,113 of 2002 is converted into appeal and disposed of alongwith Criminal Appeals Nos.156 and 216 of 2002, in above terms.
13. Because Fida Hussain, Ashiq Hussain and Sher Zaman were on bail, prior to the passing of order by the trial Court, therefore, they are allowed to continue on bail, subject to their furnishing surety bonds in the sum of Rs,100,000 (Rupees one lac) each, with two sureties and P.R. In the like amount to the satisfaction of Additional Registrar, Lahore High Court, Rawalpindi Bench, Rawalpindi.
Needless to observe that learned Division Bench, seized with the matter, shall dispose of the cases, independently, without being influenced in any manner from the observations made hereinabove, expeditiously, as far as possible within a period of three months, after receipt of this order.