2005 PLP 595 (YLR)

Azhar Shah is a big landlord of the locality. He has obtained a square of land under horse breading scheme and my father is his servant. On 14‑9‑1995 a bomb case F.I.R. No. 167 of 1995 under Explosive Act, 1908 was registered at P.S. Kacha Khuh. Two accused one Abdul Waheed and other one who was also Rajput by caste were booked and were awarded life imprisonment with the fine. Abdul Waheed accused in case F.I.R. No. 167 of 1995 is son‑in‑law of the complainant of this case. I have been involved by the complainant due to Mukhbari in the case F.I.R. No. 167 of 1995 against the complainant's brother‑in‑law to Azhar Shah and police and due to party faction of the village and old enmity of case F.I.R. No.167 of 1995 the complainant has involved me in this false case."

5. While the other accused/appellant Abdul Ghaffar alias Doodu to the same question replied as under:‑‑ "The case is false and fabricated. I have not taken part in the occurrence. I have also not taken the deceased in the Japha. I have no motive against the deceased. I made no consultation with my co accused Muhammad Hayat about this occurrence. There is party faction in our Chak and the complainant party was against us. I had pleaded my innocence through the investigation. Many respect ables of the village appeared before the police alongwith their affidavits and stated that I have not taken part in the occurrence and that I am innocent. The complainant party denied to give oath or to take oath from me or of any respectable on my behalf. I am of tender age and the deceased was young and well built up person even otherwise this way I could not take him into, my Japha. All the story of the prosecution is false and fabricate. The P.Ws are inter se related interested and were inimical towards me. They have stated falsely in the Court. I am innocent."

6. After hearing both the parties, learned Sessions Judge, Khanewal passed the impugned judgment conviction and sentence against the appellants. Hence, all these matters.

7. Learned counsel for the appellants contends that both the appellants were less than 18 years of age at the time of alleged occurrence and due to the promulgation of Juvenile Justice System Ordinance, 2000 the case was triable by the Court constituted under the said Ordinance. It also contended that both the eye‑witnesses were inimical towards the appellants; as such they were falsely implicated in the present case. It is further contended that the occurrence had allegedly taken place very thickly‑populated area but no independent eye‑witness had been produced by the prosecution either before the police or at the trial to substantiate its case against the appellants and it clearly shows that was a blind murder. It is lastly contended that it was a dark night and the appellants were falsely implicated in the present case merely on suspicion due to previous enmity.

8. On the other hand, learned counsel appearing on behalf of the complainant opposes this appeal and contends that according to the Birth Certificate appellant Muhammad Hayat was more than 18 years of age at the time of alleged occurrence and he has also moved application under section 428, Cr.P.C. for determination of age of said Muhammad Hayat, but he has illegally been convicted and sentenced under section 308, P.P.C. while considering him minor, otherwise his case is fully covered by section 302(b), P.P.C. and he should be sentenced to death as there was no mitigating circumstances warranting lesser punishment because it was a brutal murder. According to the learned counsel, even otherwise the prosecution has succeeded in establishing the guilt of the appellants through the statements of P.Ws 6 and 7, who were not interested witnesses as there was no previous enmity. He has prayed for remand of the case while accepting Crl. Revision filed by the complainant.

9. The learned State counsel has also opposed both the appeals.

10. I have heard the learned counsel for the parties and also perused the record with due care and caution. First of all, I take up the case of Abdul Ghaffar alias Doodu appellant who has filed Crl. Appeal No. 174 of 2002 against his conviction and sentence. Admittedly he was not armed with any weapon at the time of the incident and the only role ascribed to him is that he had held Waheed Anjum deceased in Japha while his co‑convict Muhammad Hayat while armed with Khanjar had caused successive injuries on different parts of his body, P.W.2 Dr. Umar Farooq during post‑mortem examination of the deceased Waheed Anjum found five incised wounds on body. Injury No.1 was on the front of right chest and below the right nipple while the remaining injuries Nos.2 to 5 were on the back of the deceased. P.W.2 admitted during the cross‑examination that the person making Japha to the deceased even if was on the back side or front side of the deceased, he must have received injuries in this case. According to him the man while grappling the deceased from back side should have received injuries on his hand if the assailant was inflicting injuries on the front side of the deceased. He also admitted that there was no necessity in this case for having the deceased in his Japha by any person for causing injuries to the deceased and injuries could be inflicted to the deceased without Japha. According to him the deceased might have fallen down after receiving injury No.1, and injuries Nos.2 to 5 could be inflicted while the deceased was fallen on the ground. P.W.6 Muhammad Asghar complainant during cross‑examination stated that the deceased received injury No.1 when the appellant had caught hold of him from the front side where after he fell on the ground and he was caught hold from the shoulder.

11. The appellant Abdul Ghaffar is not related to co‑convict Muhammad Hayat who inflicted injuries to the deceased. They had no common intention to commit the murder of the deceased as no motive is ascribed to the appellant Abdul Ghaffar and he being Rajpoot by caste was not related to Muhammad Hayat convict, who is Musalli by caste. The role ascribed to Abdul Ghaffar appellant is improbable and due to the same possibility of his false implication cannot be ruled. The prosecution has failed to connect Abdul Ghaffar appellant in the present occurrence for sharing common intention with the co convict and the role attributed to him had been disbelieved through the medical evidence as well. It is well‑settled law that benefit of doubt will have to go to the accused. As such Crl. A. No. 174 of 2002 filed by Abdtal Ghaffar appellant is accepted, the, impugned judgment to the extent of his conviction and sentence is set aside and he is acquitted of the charge by extending him the benefit of doubt. He is on bail and is discharged of the liability of surety bonds.

12. As far as the case of Muhammad Hayat appellant, who has filed Crl. Appeal No.127 of 2002 is concerned, according to the prosecution, the occurrence in the present case took place at 8‑00 p.m. The Police Station was 8 miles from the place of occurrence, the dead body of the deceased after the occurrence was shifted to the hospital by the complainant where he died and then the complainant went to the Police Station and got lodged the F.I.R. at 10‑00 p.m. The complainant fully explained that the F.I.R. was got lodged with promptitude. The appellant Muhammad Hayat was attributed successive blows with dagger on the person of the deceased which proved fatal. Both the eye witnesses P.W. 6 Muhammad Asghar father of the deceased and P.W.7 Muhammad Jamil were residents of the same locality. Muhammad Jamil P. W.7 is not related in any manner with the complainant or the deceased except that he belonged to the Bradri of the deceased. The learned trial Court has reached to the conclusion that the prosecution was able to prove the case against Muhammad Hayat appellant, but convicted him under section 308, P.P.C. on the ground that Qatl‑i‑Amd committed by him was not liable to Qisas under section 306, P.P.C. as he was aged about 16/17 years.

13. The contention of learned counsel for the complainant is that Muhammad Hayat appellant was more than 18 years of age at the time of the occurrence and he has filed Crl. Misc. under section 428, Cr.P.C. for bringing on record copy of his birth certificate to prove the same. I have noticed that in the Saza slip, said Muhammad Hayat appellant was recorded to be less than 18 years of age and even in his statement recorded under section 342, Cr.P.C. he claimed him to be less than 18 years of age at the time of alleged occurrence, but the complainant, who had engaged a private counsel or the learned counsel appearing on behalf of the State did not file any application to rebut the same during the trial. Therefore, at this belated stage the application of the complainant cannot be accepted as the birth certificate, which he intends to be produced on record through additional evidence was earlier available, but he has failed to give any reason for not producing the same at the relevant time. Hence the application for additional evidence submitted by the complainant is dismissed.

14. On the other hand the claim of learned counsel for Muhammad Hayat appellant is that even according to the impugned judgment, said Muhammad Hayat was less than 18 years of age at the time of alleged occurrence, as such his case could only be tried by the Court constituted under the Juvenile Justice System Ordinance, 2000. He has prayed for remand of the case for de novo trial by the said Special Court. Admittedly, the occurrence in the present case took place in the year, 1999 before the promulgation of Juvenile Justice System Ordinance, 2000. The case remained pending trial for more than one year after the promulgation of said Ordinance, but during this period no application was moved on behalf of Muhammad Hayat appellant for transfer of his case to the Court concerned. Moreover, the learned counsel for the appellant has failed to point out as to what prejudice was caused to the appellant by such omission. In view of the case‑law laid down by the august Supreme Court of Pakistan reported in Ijaz Hussain v. The State (2002 SCMR 1455), the relevant portion whereof is reproduced as under:‑‑ "The occurrence in the present case had taken place before the promulgation of Juvenile Justice System Ordinance, 2000, under which the trial of a person less than the age of 18 years is held by superior Court established under the said Ordinance but a juvenile offender is not entitled to claim lesser penalty on a capital charge as of right under said Ordinance. In any case, the trial Court in the present case was conducted before the promulgation of the above said Ordinance, therefore, the procedure under the said Ordinance for determination of age of an accused would be relevant but the age of an accused mentioned in the statement under section 342, Cr.P.C. if remained un rebutted, the presumption of correctness would be attached to the age given in the statement under section 342, Cr.P.C. which is a part of judicial record." The prayer for de novo trial by the Court constituted under the Juvenile Justice Ordinance, 2000 is repelled.

15. So far as conviction awarded to Muhammad Hayat appellant under section 308, P.P.C. is concerned, admittedly the proof of Qalt‑e‑Amd liable to Qisas as provided under section 304, P.P.C. was not available in the present case and no proceedings for Tazkiyah‑al‑Shahood to test the veracity of the eye‑witness were undergone by the learned trial Court. As such in the present case the sentence could only be awarded as Ta'zeer and the view adopted by the learned trial Court for convicting Muhammad Hayat appellant D under section 308, P.P.C. is illegal as Qisas was not available in the present case. In forming this view, I am fortified by the case‑law reported in Faqir Ullah v. Khalil- uz‑Zaman and others (1999 SCMR 2203), the relevant portion thereof is reproduce6 as under:‑‑ "In cases where Qisas is not available, the Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances. "

17. For the foregoing reasons, the conviction of the appellant Muhammad Hayat under section 308, P.P.C. is set aside and case is remanded to the learned trial Court for rewriting of judgment keeping in view the above case‑law laid down by the august Supreme Court of Pakistan as under Article 189 of the Constitution the same is binding on all the subordinate Courts including this Court. The learned trial Court needs not to record any fresh evidence. The process shall be completed within one month after the receipt of copy of the judgment, of course while affording equal opportunity of arguments to both the parties and without being influenced by the findings of this Court or the impugned judgment, on merits Crl. Appeal No. 127 of 2002 filed by Muhammad Hayat appellant with the above direction stands disposed of. In the meanwhile Muhammad Hayat appellant will remain in jail and produce before the learned trial Court on the date fixed by it.

18. In view of the above Criminal Revision No. 148 of 2002 need no further comments as Abdul Ghaffar appellant has been acquitted of the charge to the extent of Muhammad Hayat appellant the case has been remanded to the learned trial Court for re‑writing of judgment. As such the same is dismissed. H.B.T./M‑761/L Order accordingly.