2018 P Cr (PLP)

MALIK SHAHZAD AHMAD KHAN, J.

The instant criminal revision has been filed for enhancement of sentence of Naeem Iqbal alias Mehnga (respondent No. 1) in case FIR No. 841/2008 dated 23.10.2008 offences under sections 302, 109, 148, 149, P.P.C. Police Station Bhikhi, District Sheikhupura, with the prayer that sentence of 'Diyat' amount awarded to the above mentioned respondent be altered from the charge under section 322, P.P.C. to the charge under section 302, P.P.C. by awarding the said respondent the death sentence.

2. As per brief facts of the present case, the petitioner/complainant Ghulam Mustafa lodged the above mentioned FIR against respondent No.1 with the allegation that on the intervening night of 22/23.10.2008 at 03.00 a.m. his 'Bhatija' (nephew) Shah Muhammad (deceased) was present in his agricultural fields and was irrigating his crop of `Shaftal'. Ghulam Mustafa (complainant), Ghulam Rasool and Muhammad Akram (PWs) were also present at the spot. In the meanwhile, Naeem Iqbal alias Mehnga (respondent No. 1) armed with rifle 44 bore and his co-accused namely Yasir armed with pistol, Sarang Farid armed with pistol and Khalid Sheikh armed with 12 bore gun emerged at the place of occurrence and raised lalkara. On seeing respondent No. 1 and his co-accused, Shah Muhammad (deceased) started running, whereupon, respondent No.1 and his co-accused chased and encircled him. Naeem Iqbal alias Mehanga respondent No. 1 thereafter, made a fire shot with his rifle which landed on the chest of Shah Muhammad who fell on the ground and succumbed to the injury at the spot. The motive behind the occurrence was that in the previous B.D. Elections, the complainant party opposed the father of Yasir co-accused, namely Shahadat Bhatti. The said Shahadat Bhatti won the election, however, he was murdered afterwards. Due to the above mentioned grudge, the accused persons committed the occurrence.

3. After completion of investigation the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898, framed charge against respondent No.1 and his co-accused, to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced six witnesses during the trial, whereas, two witnesses appeared as Court Witnesses. The statements of respondent No. 1 and his co-accused under section 342, Cr.P.C. were recorded, wherein they refuted the allegations levelled against them and professed their innocence.

4. The learned Additional Sessions Judge, Sheikhupura after completion of trial, vide judgment dated 08.03.2011, concluded that Shah Muhammad deceased received injury due to the accidental act of respondent No. 1, therefore, he was convicted and sentenced under section 322, P.P.C. and was held liable to pay Diyat of Rs. 11,02,680/- to the legal heirs of deceased. The above mentioned respondent was not convicted and sentenced by the learned trial court for the charge under section 302, P.P.C.; hence the instant criminal revision before this Court.

5. It is contended by learned counsel for the petitioner that the prosecution has fully proved that respondent No. 1 committed intentional murder of Shah Muhammad (deceased), therefore, there was no justification with the learned trial court to convict and sentence the above mentioned respondent under section 322, P.P.C. instead of the charge under section 302, P.P.C.; that the learned trial court has not mentioned in the impugned judgment that respondent No. 1 has been acquitted from the charge under section 302, P.P.C., therefore, the said respondent cannot be presumed to be acquitted from the above mentioned charge; that the learned trial court has wrongly held that it was a case of accidental occurrence, whereas, it was a case of premeditated murder; that the instant criminal revision is maintainable and this Court in revisional jurisdiction can validly convert the conviction and sentence of respondent No. 1 from the charge under section 322, P.P.C. to the charge under section 302, P.P.C., therefore, the instant petition may be accepted and sentence of respondent No. 1 may be converted from the charge under section 322, P.P.C. to the charge under section 302, P.P.C. and the said respondent may be awarded the sentence of death. In support of his contentions, learned counsel for the petitioner has placed reliance upon the cases reported as Zarin v. The State (1976 SCMR 359), Mushtaq Ahmad v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others (PLD 2007 SC 405), Shaukat Ali v. The State (PLD 1982 SC 280), Ghulam Murtaza v. The State (1975 SCMR 244), Mst. Zaib-un-Nisa v. Rehmat and 2 others (2011 PCr.LJ 666), Jeremy Frankel, General Manager, Avari Hotel, Lahore v. The State (2003 PCr.LJ 75), Bashir Ahmad and another v. Favyaz Ahmad and others (2007 SCMR 445) and Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another (1983 SCMR 775).

6. Arguments heard and record perused.

7. In this case it was claim of the complainant party that Naeem Iqbal alias Mehnga (respondent No. 1) committed intentional murder of Shah Muhammad deceased. On the other hand, it was claim of respondent No. 1 that it was not a case of intentional murder. Respondent No.1, claimed that on the night of occurrence he (respondent No. 1) was irrigating his land from the tube-well of his uncle Habib Bhatti. He had a rifle with him for security purpose. He (respondent No. 1), Shah Muhammad deceased, Muhammad Khalid Musali son of Ahmad Ali and Sarang Fareed son of Muhammad Arif were close friends and were sitting in the fields as they were waiting for the turn of water of Sarang Fareed. In the meanwhile, Shah Muhammad deceased asked respondent No. 1 to make a fire shot from his rifle and on his insistence Naeem Iqbal alias Mehnga (respondent No. 1) made a fire shot from his rifle which accidentally hit Shah Muhammad deceased. The learned trial court after scrutinizing the evidence of the prosecution came to the conclusion that the occurrence took place at 03.00 a.m. (night) but no source of light was mentioned in the FIR or in the statement of the prosecution eye-witnesses. There was inordinate delay in lodging the FIR, because the occurrence took place at 3.00 a.m, and the FIR was lodged at 8.55 a.m., whereas the distance between the place of occurrence and police station was 3 kilometers. It was also noted by the learned trial court that the post mortem examination of the deceased was conducted on the next day at 2.30 p.m. i.e, with the delay of about 11-1/2 hours from the occurrence. The motive part of the prosecution story was also disbelieved and it was observed that admittedly the deceased or the complainant and prosecution eye-witnesses were not accused in the murder case of Shadat Bhati. It was further held by the learned trial Court that there were material contradictions in the statements of the eye-witnesses, therefore, the prosecution evidence was discarded. After rejecting the prosecution evidence the learned trial court relied upon the statement of Naeem Iqbal alias Mehnga (respondent No.1) and concluded that it was not a case of intentional murder rather the same was result of an accidental act of respondent No. 1, amounting to Qatl-i-Khata. Resultantly Naeem Iqbal alias Mehnga (respondent No.1) was not convicted and sentenced for the charge under section 302, P.P.C., however, he was convicted for offence of Qatl-i-Khata punishable under section 322, P.P.C. and sentenced to pay Diyat of Rs.11,02,680/- to the legal heirs of Shah Muhammad deceased.

8. Now the first and the foremost question for determination before his Court is that as to whether the instant criminal revision is maintainable in the light of prayer made by the petitioner in this petition that the sentence awarded to respondent No. 1 by the trial court be converted from the charge under section 322, P.P.C. to the charge under section 302, P.P.C. and the said respondent be awarded the sentence of death instead of the sentence of 'Diyat' only. As mentioned earlier, the learned trial court after recording of evidence has concluded that it was a case of accidental occurrence, therefore, respondent No. 1 was convicted and sentenced only for the offence of Qatl -i-Khata punishable under section 322, P.P.C. The learned trial court after evaluating the prosecution evidence has concluded that it was an unseen occurrence and the prosecution failed to prove its case against the above mentioned respondent, whereby, the allegation of intentional murder was levelled against the said respondent. Although it is not mentioned in the impugned judgment that respondent No. 1 has been acquitted from the charge under section 302, P.P.C. but as the said respondent has not been convicted and sentenced for the abovementioned charge, therefore, it would be deemed that he (respondent No. 1) was acquitted from the said charge by the learned trial court. Reference in this respect may be made to the case reported as Muhammad Yaqub v. The State (1985 PCr.LJ 2406) wherein at Para No. 6 it was observed as under:- "

6. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the appellant was charged under section 409, P.P.C. on the allegation of criminal misappropriation of Rs. 2,550 received by him from Jan Muhammad and Faqir Muhammad: that he having not been convicted under section 409, P.P.C. is deemed to have been acquitted of that charge........." Similar view was taken in the case of Muhammad Sajjad and 2 others v. The State (PLD 1960 (W.P.) Lahore 520). If respondent No. 1 is deemed to be acquitted from the charge under section 302, P.P.C. then his acquittal from the said charge cannot be converted into his conviction in the revisional jurisdiction of this Court. The provisions of section 439(4)(a), Cr.P.C. are relevant in this respect which are reproduced hereunder for ready reference:-

439. High Court's powers of revision. (1) ......................................................... (2) ......................................................... (3) ......................................................... (4) Nothing in this section shall be deemed to authorize a High Court; (a) to convert a finding of acquittal into one of conviction; (b) ......................................................... (5) ......................................................... (6) ......................................................... As respondent No. 1 is deemed to be acquitted from the charge under section 302, P.P.C. by the learned trial court, therefore, while keeping in view the provisions of section 439(4)(a), Cr.P.C. this Court in the exercise of revisional jurisdiction cannot convert the findings of acquittal of respondent No. 1 from the charge under section 302, P.P.C. into one of his conviction.

9. It is also noteworthy that the impugned judgment was passed in a private complaint filed by the petitioner/complainant, therefore, the petitioner was supposed to file a petition for special leave to appeal against the acquittal of respondent No. 1 from the charge under section 302, P.P.C., by the learned trial court. The petitioner/ complainant filed Criminal Petition for Special Leave to Appeal No. 73 of 2011 and Criminal Petition for Special Leave to Appeal No. 78 of 2011 against the acquittal of Khalid and Sarang Fareed co-accused, respectively and the said petitions have been dismissed by this Court vide orders of even date 26.10.2015. No petition for special leave to appeal has been filed by the complainant/appellant against the acquittal of respondent No. 1 from the charge under section 302, P.P.C. Under the circumstances as the remedy of filing an appeal with the special leave of the court (petition for special leave to appeal) is provided under section 417(2), Cr.P.C. against the acquittal of respondent No. 1 from the charge under section 302, P.P.C., therefore, while keeping in view the provisions of section 439(5), Cr.P.C. the instant criminal revision is not maintainable in the eye of law. The above referred provisions of law reads as under:-

417. Appeal in case of acquittal. (1) ......................................................... (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. (2-A) ......................................................... (3) ......................................................... (4) .........................................................

439. High Court's powers of revision. (1) ......................................................... (2) ......................................................... (3) ......................................................... (4) ......................................................... (5) "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed." (6) ......................................................... As the remedy of filing an appeal with the special leave of the court, under section 417(2-A), Cr.P.C. is provided against the acquittal of respondent No. 1 from the charge under section 302, P.P.C., therefore, no proceedings by way of the instant criminal revision are entertainable at the instance of the petitioner/complainant who could have filed an appeal with the special leave of the court against respondent No.1.

10. Admittedly the amount of Diyat has rightly been fixed by the learned trial court according to the notification issued by the government for the relevant year. Even otherwise, there is no prayer in this petition for enhancement of the amount of Diyat.

11. The judgment cited by learned counsel for the petitioner in the case of Zarin v. The State (1976 SCMR 359) has been rendered on the point that the High Court was not barred from enhancing the sentence of a convict after his release from the jail. It was not held in the said judgment that in the exercise of revisional jurisdiction, the acquittal of an accused from a specific charge could be converted into one of his conviction by the High Court. Likewise in the case of Shaukat Ali v. The State (PLD 1982 SC 280), it was simply held by the apex court that a High Court can suo motu enhance the sentence of a convict and it was not held in the said judgment that while exercising revisional powers under section 439, Cr.P.C., a High Court can convert the findings of acquittal of an accused into one of his conviction. Similarly, the remaining judgments cited by learned counsel for the petitioner are not relevant for the determination of issues involved in the present petition.

12. Keeping in view all the above mentioned facts, the instant criminal revision petition is not maintainable; hence the same is hereby dismissed. JK/G-15/L Petition dismissed.