1991 PLP 643 (SCMR)

‑‑‑‑Preamble‑‑‑Qanun‑e‑Shahadat (10 of 1984), preamble ‑‑‑Qanun‑e‑Shahadat, 1984 is fully applicable in the case before the Tribunal and Authorities to proceedings under the Ordinance 11 of 1963. Nazar Muhammad and another v. Abdul Ghafoor and others PLD 1987 Quetta 141 approved. Muhammad Munir Peracha, Advocate Supreme Court and Manzoor Ilahi. Advocate‑on‑Record for Appellants. SA.M. Quadri, Advocate‑on‑Record for Respondents. Date of hearing: 25th November, 1990. ALI HUSSAIN QAZILBASH, J.‑‑‑This appeal by leave arises from the judgment of a learned Division Bench of the Balochistan High Court dated 12‑4‑1988.

2. The facts very briefly are that on the report dated 20‑9‑1986 that one Muhammad Akbar was missing, Naib‑Tehsildar Kirdgaab started investigation. During the process the dead body of Muhammad Akbar in a decomposed stage was recovered under the bushes in the mountains. During further probe, Dad All' brother of the deceased implicated the appellants on a suspicion of previous enmity. The case was ultimately referred to the Tribunal under sections 5 and 6 of Ordinance 11 of 1968. On the basis of three pieces of circumstantial evidence, namely enmity, abscondence of the appellants and the fact that the fathers of the appellants had tried to compromise on payment of blood‑money, reported the findings of guilt of the appellants to the Deputy Commissioner Kalat. After considering the findings of the Tribunal, the Deputy Commissioner as per order dated 2‑7‑1987 convicted both the appellants under section 302/34, P.P.C. read with section 11(3) of Ordinance 11 of 1968 and sentenced them to 14 years' R.I. each. The appeal filed by the appellants and revision were dismissed by the Commissioner, Kalat and Member, Board of Revenue, Baluchistan, Quetta, on 13‑9‑1987 and 29‑3‑1988, respectively. Their revision petition was also dismissed.

3. Leave in this case was granted to examine the legality and propriety of the orders of the Tribunals and the High Court.

4. We have heard the learned counsel for the parties.

5. As per the facts narrated in pare‑2 of this judgment, no ocular evidence is available in this case. The appellants have been convicted on the basis of the following three types of evidence‑ (1) existence of enmity between the parties; (2) abscondence of the appellants; and that (3) the fathers of the appellants had admitted the guilt of their sons, compromised the matter on the payment of a sum of Rs.80,000 but then resiled from the same. Now the question to be considered is whether the Tribunals and the High Court were justified in convicting the appellants on the basis of such evidence on a capital charge.

6. The answer obviously is in the negative. We say so because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever convincing it may be, can be relied upon or can form the basis of conviction. The existence of motive/enmity is neither a substantive nor a direct evidence. It is not a corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can be taken as an evidence. Further, motive/enmity is a double‑edged weapon. Offence may be perpetrated because of the existence of motive/enmity and it can also be a basis of a false charge. The same is the case with abscondenee. It is true that people do run away after committing the crime but it is equally true that people also scare themselves because of a false charge, the fear and high‑handedness of the police. In this view of the matter it can hardly be said that motive/enmity or the matter of their abscondence has any value at all so long as direct evidence is not forthcoming.

7. As for the third piece of evidence on which conviction has been made, the less said the better. In this case the admission of the fathers of the appellants as to the commission of crime by the appellants has been taken as confession made by the appellants and thus convicted them as such. The adoption of such a procedure in the criminal trial is beyond our comprehension. In the matter of trial of an accused person the only person who can make an admission of the commission of crime or enter into a compromise is the accused himself. Thus, any admission made or compromise entered into by the fathers of the appellants is absolutely meaningless, and therefore, no conviction can be based on such compromise. The decision thus taken by the Tribunal and the High Court in convicting the appellants on the basis of admission/compromise made by the fathers of the appellants is against all canons of justice and fairplay. The same is, therefore, discarded.

8. The learned Judges of the High Court have also refused to examine the case in view of the judgment of this Court reported in PLD 1974 SC

139. With all respects we think that the law laid down in the reported authority has been misapplied in this case inasmuch as the decision made by Tribunal is not supported by any evidence at all. It being a case of no evidence, the High Court was bound to examine the legality and propriety of the decision made by the lower forums.

9. In so far as the applicability of the Qanun‑e‑Shahadat in proceedings under Ordinance before the Tribunal and authorities is concerned, this has been considered by a learned Division Bench of the Balochistan High Court in the case of Nazar Muhammad and another v. Abdul Ghafoor and others reported in PLD 1987 Quetta 141 at length. After dealing with the above question in the light of section 8 of the General Clauses Act, 1897 corresponding to section 5 of the General Clauses Act (VI of 1956), the learned Judges in a well‑considered judgment held:‑‑‑ "From the above discussion we are inclined to hold that the provisions of Qanun‑e‑Shahadat shall apply to proceedings under this Ordinance. Section 3(2) of the Ordinance shall have no effect to the applicability oil provisions of Qanun‑e‑Shahadat to proceedings under the Ordinance." We too have considered this question, no material has been brought before us to reach a conclusion other than the one arrived at in the reported case. We, therefore hold that Qanun‑e‑Shahadat Order, 1984 is fully applicable in the case before the Tribunals and Authorities to proceedings under Ordinance II of 1968.

10. The view that we take in the matter is that it is a case of no evidence. We, therefore, accept this appeal and acquit tile appellants. They should be set at liberty if not required in any other case. M.B.A./M‑1460/S Appeal accepted.