2021 PLP 1059 (SCMR)

MAZHAR ALAM KHAN MIANKHEL, J.

Criminal Petition No. 35-Q of 2017 The Petitioner-convict was booked in case FIR No.22/2012 dated 18th May, 2012 registered under sections 302, 147,148,149 of the Pakistan Penal Code (P.P.C.) and under section 337-A, D, F, of the Q&D Ordinance, Police Station, City-Chaman, District Killa Abdullah at Chaman along with his co-accused for the murder/qatl-i-amd of Najeebullah son of Abdul Shakoor and causing knife blows to the complainant-Abdul Shakoor and his brother Abdul Wadood. After investigation and a regular trial the Petitioner was convicted under section 302 subsection (ii) of Q&D (as was described in the Qisas and Diyat Ordinance) and sentenced to death as Tazir and further to pay a compensation of Rs.200,000/- (two lac) under section 544-A of Code of Criminal Procedure (Cr.P.C.) to the legal heirs of the deceased and in default thereof to further suffer one year's S.I. The conviction of the Petitioner was also maintained in appeal by the High Court of Balochistan, Quetta vide its Judgment dated 5th June, 2017, however, his sentence of death was modified to life imprisonment and benefit under section 382-B, Cr.P.C. was also extended to him. Compensation under section 544-A, Cr.P.C. and sentence in default thereof was ordered to be maintained. The Petitioner through instant petition has sought grant of leave to appeal by this Court against the impugned Judgment dated 5th June, 2017.

2. We have heard the learned counsel for Petitioner and the learned State Counsel assisted by learned counsel for the complainant. Perusal of the record reveals that the complainant along with his brother Abdul Wadood while going to Bazar on 18th May, 2012 for buying household articles were attacked by the Petitioner along with his co-accused at 8.00 a.m. in the vicinity of Police Station/Thana, 'Levies Chaman' District Killa Abdullah and the-said matter was also reported vide FIR No.84/2012. The complainant received injuries. The complainant was being taken to hospital by his brother Abdul Wadood and his son Najeebullah. When they reached outside the main gate of Civil Hospital Chaman, the accused party including the Petitioner once again attacked them. The Petitioner gave repeated churrri blows to Najeebullah who succumbed to the injuries at the spot, whereas the complainant and his brother Abdul Wadood received stab wound injuries at the hands of Abdul Rashid co-accused. Perusal of the record further reflects that the patrolling police reached at the spot during the occurrence and the Petitioner along with his acquitted co-accused Abdul Rashid, Abdul Hadi and Syed Ali were arrested at the spot along with their respective weapons of offence i.e. `Churri' (P-7) and `Chaqu' (P-9). The same were taken into custody by the investigating officer vide recovery memo (Ex-P-5). PW-5 has not only confirmed the arrest of the accused at the spot but has also confirmed the recovery of their respective above noted weapons of offence. We have noted that it is a promptly lodged report and the Petitioner along with his co-accused were arrested at the spot. The case of the prosecution is fully supported by the two injured PWs namely Abdul Shakoor (PW-1) and Abdul Wadood (PW 2); Dr. Rafiullah appeared as PW-6 who confirmed the death of the deceased, Najeebullah by issuing the MLC (Ex-P-6). (In this area, postmortems normally are not conducted for the reasons best known to the local administration as well as people of the locality). The MLC issued by the Doctor fully supports the story of the prosecution regarding murder of Najecbullah (deceased). The trial Court and the High Court after proper appraisal of the evidence have recorded conviction of the Petitioner. We have also gone through the entire evidence and the material available on the record with the assistance of the learned counsel for the parties and found nothing to interfere with the conviction recorded by the courts below. Since the motive alleged by the prosecution was not proved, so, the benefit to that extent i.e. conversion of death sentence to life imprisonment has already been extended to the Petitioner in his appeal before the High Court. The Petitioner simply denied the commission of offence but he was also unable to give plausible explanation regarding his innocence in his statement under section 340(2), Cr.P.C., rather he has admitted his arrest in the hospital but with a different narration but that too was not established.

3. The Petitioner alone has been charged for committing murder of the deceased Najeebullah, whereas the other co-accused have been charged for causing injuries to Complainant (PW-1) and Abdul Wadood (PW-2). The prosecution has fully proved its case against the Petitioner. We after proper appraisal of evidence see no merits in this petition which is dismissed and leave refused. Criminal Petition No. 36-Q/2017: Since the death sentence awarded to the convict - Abdul Wasay/Respondent No.1 was converted to life imprisonment for want of proof of motive, alleged by the prosecution, so by considering the same as a mitigating circumstance, sentence awarded to the Petitioner was modified. The learned counsel for the complainant was unable to convince us for taking yet another view of the matter for enhancement of sentence of convict, Abdul Wasay/Respondent No.1; hence, this petition being meritless is dismissed and leave refused. Criminal Petition No, 37-Q/2017: Respondent No. 3/Abdul Rashid, accused was charged for causing knife blows to the complainant and Abdul Wadood but no medical evidence of the said injuries from proper source was brought on the record. The investigation officer produced their medical certificates but the same were not considered and relied upon by the trial court to record his conviction. Yet another aspect of the case was also helpful in his acquittal as the complainant had also received injuries in the earlier round of occurrence (separately reported vide FIR No.84/2012 of the same date) and in absence of specific medical report, it was difficult for the trial court to determine the injuries to have been inflicted in the present occurrence, whereas Respondents Nos. 1 and 2/Abdul Hadi and Syed Ali co-accused were charged for giving kicks and fists blows to the complainant party, but the prosecution has failed to prove the case against them, hence this petition, too, being meritless, is dismissed as such and leave refused. We have observed that there exist some confusion and misconception of law regarding Chapter-XVI ("Offences Affecting the Human Body") of the Pakistan Penal Code, 1860 ("P.P.C.") and the Code of Criminal Procedure, 1898 ("Cr.P.C.") in the legal and judicial system in the Province of Balochistan, dealing with the matters noted above as they still use the repealed provisions of law. For the first time, the provisions relating to Qisas and Diyat were introduced in P.P.C. and Cr.P.C. by the Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) commonly known as Qisas and Diyat Ordinance. This 'Ordinance though was repealed by a subsequent Ordinance, i.e. the Criminal Law (Second Amendment) Ordinance, 1991 (Ordinance I of 1991) but the same provisions were also re-enacted in the P.P.C. and Cr.P.C. through the same Ordinance. This process of repeal and re-enactment continued till Ordinance CXIII of 1996 and finally before expiry of Ordinance CXIII of 1996, the provisions of law relating to Qisas and Diyat were permanently made part and parcel of Pakistan Penal Code, 1860 (P.P.C.) and Code of Criminal Procedure, 1898 (Cr.P.C.) vide Criminal Law (Amendment) Act, 199'7- (Act II of 1997). The Chapter XVI was accordingly made part of Pakistan Penal Code (P.P.C.) applicable throughout Pakistan. Mentioning of such offences under any of such Ordinances (being repealed one) instead of P.P.C./Cr.P.C. is not only unlawful but a grave misconception of law. All the concerned Departments i.e. LAW and PROSECUTION; (i) Secretariat Ministry of Law and Justice Govt. of Pakistan, Islamabad; Secretary Law and Parliamentary Affairs Department, Govt. of Balochistan Quetta and (iii) Secretary, Prosecution Department, Govt. of Balochistan, Quetta and the Courts should rectify this mistake and should also be vigilant in this regard in future. Copies of this Order be accordingly sent to all the concerned. MWA/A-19/SC Petition dismissed.