1989 P Cr (PLP)

(b) 3 years' R.I. and Rs. 12,000 fine or 6 months' R.I. in default of payment under section 326, P.P.C. (c) 2 years' R.I. and Rs. 8,000 fine or 6 months' R.I. in default of payment offence under section 353, P.P.C. (d) 1 year's R.I. and Rs. 4,000 fine or 3 months' R.I. in default of payment for offence under section 332, P.P.C. (e) 10 years' R.I. and Rs. 40,000 or 2 years' R.I. in default of payment for offence under section 400, P.P.C.1 All the sentences will run consecutively and will deem to have commenced from 3‑7‑1986. The amount of fine if recovered, will be deposited in Government treasury." Besides co‑accused Wazir Joya was also convicted for lesser punishment for the reasons contained in above‑mentioned order. Feeling aggrieved from aforesaid conviction, petitioner Mehr Ali Talani and Irshad Chandio filed separate appeals Nos. 42 and 51 of 1988 respectively, before learned Sessions Judge, Nasirabad. Whereas convict Nazir Joya did not challenge his conviction and sentence. These appeals were ultimately rejected by said Court vide order dated 8‑1‑1989 with certain modification/reduction in the sentence. Operative portion is reproduced below:‑ "It has come on record that the accused Irshad Chandio Mehr Ali opened fire towards Levies personnel s resultantly one Levies Sawar namely Bhagia. was wounded. The empties recovered from the place of incident establish the allegation that accused opened fire and this was not ineffective firing but it was with intention to cause hurt, therefore, the offence of 307, P.P.C. is admittedly made out; however I reduce fine to Rs. 20,000 each and I do not see any illegality in convicting the accused for the offence. The sentence is, therefore, upheld. It is also established that in the firing of the accused Bhagia Levies Sawar was injured, therefore, offence punishable under section 326, Cr. P. C. is also made out.‑ However, I reduce fine to Rs.2,000 each. It has come on record that seeing the raiding party the accused prevented for their arrest and thus dettered the officials in discharging their official duty therefore, the sentence in respect of section 353 and section 400 is correct and there is no illegality or impropriety in the order. However, I reduce fine to Rs. 8,000 each only. As the punishment of section 307, P.P.C. has been awarded to the accused for causing hurt with intention to commit murder; therefore, the punishment of section 332, P.P.C. is superflous and the accused are discharged from this charge. On the basis of the above discussion both the appeals are hereby disposed of and the order of Deputy Commissioner, dated 27‑12‑1987 is hereby confirmed with the amendments mentioned above." Present petitions now challenges the orders of conviction of petitioner passed by both the forums below.

5. Leaned counsel for petitioners have sternuously raised following points; (i) There do not exist accusations concerning offence under section 400, P.P.C. Besides none of the ingredients in respect thereof are at all made out from the available evidence. (ii) Section 12 of the Ordinance 1968 prescribes aggregate sentence of 14 years at one trial, therefore, in view of section 71 and section 35(2), Cr. P. C. conviction beyond 14 years is invalid. (iii) Petitioners as well as co‑accused Wazir Joya were apprehended in similar circumstances therefore, punishment awarded to petitioner is highly excessive and discriminatory. (iv) Petitioner Irshad Chandio never made confessional statement therefore, deposition of Magistrate, before, trial Court is apparently incorrect, Besides both the forums below have incorrectly appreciated this aspect. (v) There being no medical evidence conviction under section 326 or 307, P.P.C. is not maintainable. (vi) Since petitioners are not charged with vicarious liability therefore, in the absence of culpable act of omission or commission, joint responsibility cannot be placed. . (vii) Chase of petitioners and co‑accused by patrol party is apparently unwarranted. There is nothing to suggest that any of the petitioners; (a) had committed any offence, or (b) were avoiding the patrol party or (c) were involved in any case, therefore, basis set up by the prosecution appear to be false. (viii) No weapon was recovered from petitioner Irshad Chandio. The stand taken by him in his statement recorded before the Tribunal being plausible ought to have been believed, by the Courts below. (ix) Sessions Judge did not have powers of confirming the sentence within the meaning of clause (iii) of clause (b) of section 12 of Ordinance II of 1968 therefore; confirmation of conviction beyond seven years is unlawful. (x) Holding of trial in jail is unwarranted and violative of law. Whereas learned counsel appearing for the State vehemently opposing this petition made following submissions:‑ (i) There is ample evidence on record indicating involvement of petitioner s alongwith their companions for attacking the patrol party. Therefore, conviction by Courts below is proper. (ii) The prosecution evidence, has been properly assessed by the Tribuna Deputy Commissioner Nasirabad as well as Sessions Judge, Nasirabad cum- Appellate Authority, therefore, scope for interfering in the exercise of revisional jurisdiction within the purview of section 24 of Ordinance II of 1968 is limited. (iii) There is no illegality in holding the trial in the jail premises. Besides no prejudice has been caused to the petitioners on account of the same. (iv) By virtue of Ordinance III of 1988 word Commissioner for purpose of Appellate authority under the law has been substituted by the word Court of Sessions. Thus word Commissioner occurring in section 12(b)(iii) of Ordinance II of 1968 is relatable to appellate jurisdiction. Additionally petitioners separately challenged their convictions by riling appeals before specified appellate authority which has reappraised the facts and discussed the merits. Thus requirement of object of law has been duly met. I have considered arguments addressed by learned counsel for parties. In the first instance it may be seen that Ordinance III of 1988 primarily aims at changing the forum, which regulates disposal of appeals and revisions. Evidently under unamended law, orders of Deputy Commissioner were appeal-able before Divisional Commissioner. Therefore, under the scheme conviction recorded by the trial Court beyond period of 7 years was also required to be forwarded to said authority within the purview of section 12(b)(iii) of Ordinance II of 1968 for confirmation of said sentence. The object of such reference appears to be observance of abundant caution so that the appellate Court should necessarily examine validity or propriety of sentence exceeding seven years when awarded by trial Court. Whereas by virtue of amending law legislature for all intents and purposes has changed the existing appellate and revisional forum consequently concept of Commissioner exercising appellate authority has been deleted. If scheme of Ordinance 11 of 1968 is truly visualized it would appear that `word' Commissioner in section 12 or other provisions of the Ordinance clearly connotes appellate authority. No doubt Courts of law are concerned with plain interpretation of law and cannot supply legislative lacuna nevertheless in the event of ambiguity, accident slip or incidental omission in the statute, which is necessary to explore real intent for promoting object of law, necessary construction and interpretations can be made. Craies on Statute Law in the seventh edition by S.G.G. Edgar at page 522 while dealing with correction of accidental slip explained as under:‑ "An evidently accidental omission in the schedule to an Act may be supplied. By the Stamp Act, 1870 Schedule sub tit. Voting paper, any instrument for the purpose of voting by any person entitled to vote at any meeting was to be stamped with a Id. stamp. In R.V. Strachan, it was argued that the expression at any meeting included the assembling of the town council to elect elder men and that consequently all voting papers used at such elections must be stamped. But the Court held otherwise, on the ground that it could never have been intention of the legislature by such an enactment as this to alter the whole system of voting at public elections. We must take it said Cockburn CJ. that this schedule having been alphabetically arranged instead of as in the former Act, there has been an accidental omission of some words of reference such as the words such." This view is further supplemented by the observation in cases (i) [Patricia Anne Patel v. Gerald Cowling Patel P L D 1972 Kar. 444 and (ii) Shakeel Ahmed v. The State P L D 1972 Lah.

374. Accordingly I am inclined to hold that by virtue of amending law substituted appellate forum alone would have jurisdiction for confirmation or otherwise of the conviction. Further more in the instant case learned Sessions Judge exercising appellate authority having thoroughly considered all aspects agitated by the petitioners passed final judgment which is impugned in this petition therefore, purpose and requirement of reference for confirmation has obviously been duly met. Accordingly objection in this behalf is not well‑conceived.

6. Petitioners have been charged for various offences, which are evidently quite distinct separate and independent from each other. Therefore, trial Court was competent to award punishment in respect of each of said offences, within the prescribed limits. Besides on account of modification in sentence, by this order, the objection of petitioners personally does not subsist. Similarly it may be noted that Rule 9 of The Criminal Law (Special Provisions) Rules, 1968 caters for sittings of the Tribunal. The Deputy Commissioner exercising powers under Ordinance II of 1968 is competent to specify the place of sitting. Moreover neither any objection in this behalf was raised during the trial nor any reason F suggesting prejudice caused on account of holding trial in jail has been shown. Therefore, firstly this objection is not available to petitioner and secondly it cannot be agitated for the first time at revisional stage.

7. Learned counsel for petitioners referring to evidence adduced by the prosecution contended that ingredients for attempting to commit murder covered by section 307, P.P.C. were not made out. They emphasised that allegation's about mere firing by the accused party or fear aroused in the minds of levies on account of such firing are not sufficient to constitute necessary ingredients of the alleged offence. Similarly they canvassed that absence of medical certificate regarding injury to P. W. Bhagia is significant and adverse inference ought to have been drawn. They argued that confessional statement or the written statement of petitioner Irshad Chandio are exculpatory in nature therefore, cannot form basis for their conviction. It is pertinent to mention here that scope of revisional jurisdiction for reconsideration or reappraisal of evidence which has been exhaustively discussed and approved by the subordinate forums is extremely limited under section 24 o 1i Ordinance. For ready reference said provision is reproduced below: ‑

24. Revision. (1) High Court may at any stage call for and examine the record of any proceedings pending before or disposed of by Court of Sessions, Deputy Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order, given, passed or made or to the regularity of any such proceedings and may when calling for such records, direct the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Deputy Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice. (2) High Court may after examining any record called for under subsection (1) and giving the parties an opportunity of being heard, pass such order as it may think fit: Provided that no sentence shall be passed by High Court in the exercise of the power under this subsection which the Deputy Commissioner could not have passed under this Ordinance."

8. It is a matter of record that the Tribunal by their award-dated 19‑12‑1987 had unanimously found petitioners guilty of offence alleged against them. Besides learned Deputy Commissioner Tamboo vide order, dated 27‑12‑1987 and Appellate authority vide order dated 8‑1‑1989 had approved and upheld the C findings of guilty against them. Therefore, normally this Court cannot competently examine the procedural defects in the appraisement of evidence merely for adopting different view which also be possible under the Ordinance has no jurisdiction to examine question of alleged misappreciation of evidence except to the extent where patent illegality or material irregularity occasionine grave miscarriage of justice is depicted.

9. However, for determining, alleged miscarriage of justice with the assistance of learned counsel for parties record has been perused and evidence was discussed. It maybe seen that statement of prosecution witnesses conclusively establish the accusation against petitioners about their wreck less firing on the, Patrol Party. The evidence fully suggests that petitioners had deadly automatic weapons and were aiming directly at the Patrol Party. Therefore even ii confessional statements are ignored the prosecution evidence independently establishes that they had reasonable knowledge that by such act they would cause, death of persons who were being fired at besides their conduct clearly reflects intention for doing so. In this process certainly one of the fires had also hit P.W. Bhagia causing him injury therefore, accusation concerning attempt to murder are duly proved as rightly held by all the forums below. It is pertinent to note that incident as such has not been disputed on record. The tenor of cross‑examination does not challenge exchange of firing. In the statements petitioners have only tried to explain the cause of their reversing the Jeep which however, in view of preponderant prosecution evidence is neither plausible nor believable. All the witnesses fully corroborate that fire‑arm injury was caused to P.W. Bhagia on his leg. There is nothing to discredit this version of prosecution during cross-examination, therefore, on account of non‑production of medical certificate the accused at best can have benefit that hurt caused to P.W. Bhagia should not be treated as grievous. It is not out of place to mention here that, there are salient features and peculiar circumstances prevailing in the area whereby primarily investigation is carried out by Levies who are non‑technical persons. Even murder trial before Tribunal or Deputy Commissioner is conducted without prosecutors. Therefore, on account of mere procedural omissions, which on the whole do not affect the merits or prejudice the accused party by itself cannot form basis for vitiating the proceedings. Obviously strict adherence to the principle and procedure applicable under the regular law cannot be pressed into service, while determining matters under the provisions of Ordinance II of 1968. Admittedly provisions of Criminal Procedure Code, are not applicable in the trial of offences therefore, hyper technical objection and formal procedural defects raised by learned counsel for petitioners which otherwise do not suggest materini irregularity, miscarriage of justice perversity or arbitrariness, would obviously be of no substance. Therefore, taking into consideration all the relevant facts legal, implications and attending circumstances I am satisfied that conviction of petitioners in respect of offence under section 307, P.P.C. has been correctly recorded. However, in the absence of medical evidence to prove nature of injuries caused to P.W. Bhagia conviction under section 326, P.P.C. is converted to that of section 324, P.P.C. and sentence in that behalf is reduced to rigorous imprisonment of two years and fine already imposed by appellate Court. Similarly the evidence fully establishes against petitioners commission of offence under section 353, P. P. C. and conclusions of two Courts below in this behalf are unexceptionable. However, as regards involvement of petitioners for the offence under section 400, P.P.C. it may be seen that there is not an iota of admissible evidence on record to show that any of them belonged to gang of persons associated for the purpose of habitually committing dacoity. Obviously heavy burden lay on the prosecution to show the purpose of petitioner's association and 1. their habitual conduct for committing dacoity. In the absence of any direct evidence or circumstances which lead to an indirect inference in that behalf it would not be prudent to hold petitioners guilty for said offence. Learned counsel's for the State also candidly conceded that accusation concerning commission of offence covered by section 400, P.P.C. against petitioners were not made out from the available record. Besides principle of law enunciated in case Ramzan Ali v. The State P L D 1976 SC 545 are highly instructive on the point. Thus: for want of proper evidence and ratio decidendi of aforequoted reports, I am inclined to hold that conviction of petitioners concerning section 400, P.P.C. is bad in law accordingly same is set aside. Resultantly with the aforesaid modification in the conviction and sentence the petitions are dismissed. Petitioners shall however, also be entitled to benefit of section 382‑B, Cr. P. C. read with section 12‑A of the Baluchistan Ordinance, III of 1988. The petition was dismissed by short order; dated 12‑4‑1989 and here are reasons for the same. M.BA./330/Q Order accordingly