P L D 2001 Lahore 315 (PLP)

11. Muhammad Iqbal, S. I. P.W.6 conducted the investigation and stated about the various details of the investigations. He recorded the statements pf the witnesses and obtained medical certificate of the injured person. Amjad Hussain was not available, therefore, warrants of his arrest were obtained He prepared incomplete challan on 4-7-1997. The investigation was thereafter, taken -up by Faiz Ahmad, Sub-Inspector who arrested Amjad Hussain and got recovered .12 bore repeater gun at his instance.

12. Dr. Zar Naggar from Orthopaedic Ward, Mayo Hospital was examined by the prosecution who stated that Riaz had multiple injuries on his leg which had been fractured and injury being very deep and muscle's had been severely damaged, therefore, right leg up to the knee had to be amputated.

13. The rest of the witnesses are formal in nature.

14. As already observed that the appellants pleaded not guilty and stated that Riaz was dealing in Heroin and as such he owed money to number of persons, therefore, he had been fired at by some unknown person but on account of enmity, he falsely implicated the appellants.

15. On conclusion of the trial as detailed above, all the three appellants were convicted and sentenced by the learned trial Magistrate. As the substantive sentence was ten years' R.I and also the leg of Amjad Hussain accused appellant was ordered to be amputated as Qisas, therefore, first appeal was moved before this Court.

16. The learned counsel appearing on behalf of the appellants argued that there is practically no evidence of abetment against Shabbir and Afzal, the only witness produced in this behalf is P.W.1. A bare perusal of his evidence would show that same does not inspire confidence and is unbelievable. Even if it is accepted that threat was extended to him, it does not amount to abetment in any manner... To constitute the liability for abetment there should have been some evidence to the effect that the offence was committed at the instance of the appellants and they had supported the same or provided some material, as a result of which the same has been committed. Since no evidence in this behalf has been brought on the file, therefore, conviction of both the appellants is not at all maintainable and they are entitled to be acquitted. The learned counsel appearing for the complainant as well as State could not refute the same and as such do not seriously oppose the appeal to the extent of these two appellants i.e. Shabbir Hussain and Afzal. I find that there is no material or evidence justifying their conviction, therefore, the appeal to their extent is accepted, their conviction and sentence is set aside and they are therefore, ordered to be released forthwith if not required in any other case.

17. As regards Amjad Hussain appellant, he' alongwith his unknown companion who could not be traced even uptil today, came armed with repeater gun and caused successive injuries on the left leg of Riaz Hussain. The injuries were of such a grave nature which could not be cured or treated. therefore, his leg up to the knee had to be amputated, as such he has been disabled for rest of the life. Both the prosecution witnesses have made consistent statements and they have supported each other on all material points. Their evidence is also supported by the medical evidence and also with the motive which has not even been denied, that sister of Amjad accused had been divorced by brother of Riaz, therefore, he mounted an attack, as such the prosecution version is not only supported by the medical evidence but also by the evidence of motive as well. Amjad Hussain accused had caused injuries with fire-arm on the person of Riaz. It is a broad day incident which has no question of mistaken identity nor there is any possibility of substituting the appellant with any one else. The prosecution as such has proved its case beyond any doubt. The conviction recorded by the learned trial Magistrate, is therefore, upheld and maintained.

18. The learned counsel for the appellant on a second reflection does not challenge the conviction of the appellant. However, he has argued with vehemence that order of amputation of leg of the appellant as Qisas is not executable. Section 333, P.P.C. defines Itlaf-i-Udw, as dismemberment, amputation, severe any limb or organ of the body of another, person. Under section 334, P.P.C. punishment of Italf-i-Udw has been described. Section 334, P.P.C. is reproduced for reference as below:-- "

334. Punishment for Itlaf-i-Udw.

Whoever by doing any act, with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person cause Itlaf-i-Udw of any person, shall, in consultation with the authorised medical officer, be punished with Qisas, and if the Qisas is not executable keeping in view the principles of equality in accordance with the Injunctions of Islam, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as Ta'zir." Under this section maximum sentence provided for the offence is ten years as Ta'zir and also provides the punishment as Qisas and similar hurt or dismemberment or amputation of that part of the body has to be carried out. In case the same is not executable then the offender is liable to pay Arsh and to be punished with imprisonment of either description which may extend to ten years as Ta'zir.

19. Apart from that, sections 337-M and 337-N, P.P.C. also provide details of the cases wherein, hurt has not been held to be liable to Qisas. The case of Amjad Hussain accused appellant is not covered either by section 337-M or 337-N, P.P.C. However, it is contended with all vigour that execution of Qisas is not possible. According to the learned Magistrate the Doctor has stated that Qisas in the present case is possible and leg can be amputated but the learned counsel for the appellant is of the view that it is not a case where directly the leg has been amputated or Itlaf-i-Udw has been caused by the accused. A fire-arm injury was caused on leg, as a result of which the leg has to be amputated. Qisas according to Islamic Law means similar treatment or similar hurt caused to the person responsible for the hurt. In the present case, amputation or dismemberment has not-been caused by, the appellant. It has to be carried out because it was opined by the doctor that treatment of the injury was not possible and the only way to save the life of the injured was to get his leg amputated up to knee. The learned Magistrate by basing his judgment on the opinion of the doctor has ordered the amputation of leg as according to him the same was possible. While punishing a person with Qisas, word of penal section has to be very strictly construed. Section 334, P.P.C. mandates that if an offender caused Itlaf-i- Udw of the victim, shall be punished with Qisas, of course in consultation with the authorised medical officer but the Qisas has to be ordered only by keeping in view the principles of equality in accordance with Injunctions of Islam. According to the Injunctions of Islam, Qisas has to be in equal terms, it can neither be more nor less. The offender has to be meted out with same treatment as has been done to the victim. In this case i the offender fired a shot with gun which severely damaged the leg of the victim. According to the prosecution itself, he is not the only person who fired shot at his leg. Similar injury has been attributed to his unknown co -accused as well. It is not possible to determine that amputation was necessitated on account of injuries caused by the appellant alone or the same was attributed by. the injury caused by .his absconding co-accused as well. Admittedly, both the accused persons fired from their respective guns which landed on the same leg of the victim and the leg was amputated. Now in the present case firstly it cannot be conclusively held that amputation was caused as a result of the injury caused by the appellant alone. If some one else contributed in the injury or causing the hurt, as a result of which the amputation or dismemberment is caused, then in my view the appellant alone cannot be held responsible. Therefore the amputation of leg of the appellant alone because his co-accused is absconding, would not be just and proper. Apart from that it does not appear to be possible or executable that a fire should be shot from a repeater gun by the victim at the leg of the appellant with the same force and intensity. Repeater gun is a weapon from which precisely similar injury of the same intensity and magnitude is not possible, therefore, I am of the view that similar hurt cannot be caused by the injured at the person of the appellant. Therefore, the execution of Qisas is not possible.

20. The law has taken care of this situation in this section itself. According to section 334, P.P.C. if Qisas is not executable then alternate punishment has been prescribed, which is imprisonment for a description which may extend to ten years as Ta'zir and also payment of Arsh.

21. Section 337-Q, P.P.C. laid down Arsh for causing Itlaf of an organ which is. found singly in a human body and same has been held to be equivalent to the value of Diyat. The next section Le 337-R, P.P.C. provides. that Arsh for causing Itlaf of organs found in a human body in pairs shall be equivalent to the value of Diyat and if Itlaf is caused to one of such organs the amount of Arsh shall be one half of the Diyat. Obviously legs are organs which are in pairs. One leg of Riaz has been amputated, therefore, he is entitled to receive Arsh which will be half amount of Diyat. As already noted section 334, P.P.C. provides 10 years' imprisonment as Ta'zir. According to the learned counsel following the principle laid down in section 337-R is that amount of sentence of imprisonment shall also be computed similarly. Meaning thereby, if both the legs are dismembered or amputated; sentence would be ten years and in case one is amputated, the sentence would be half of ten years i.e. five years. I am not convinced with the analogy drawn by the learned counsel for the appellant because under section 334, P.P.C. no such distinction has been created for Itlaf-i-Udw. The sentence provided is ten years' imprisonment, that may be for Itlaf-i-Udw of one organ or both. However, to compute the sentence, a Court can keep in mind that in case one of the organ is dismembered or amputated then the same may be considered as a circumstance in favour of the accused but it cannot be claimed as a matter of right that in case of dismemberment or amputation of one organ of the body, the maximum punishment would be five years. I am not convinced and repel the argument.

22. While concluding the above discussion, I am satisfied that the prosecution has proved the case against Amjad Hussain accused appellant' beyond doubt. His conviction under section 336; P.P.C. is proper and the same is upheld and maintained. However, considering that the sentence of Qisas is not executable, I set aside the same and awarding the alternate sentence of imprisonment as Ta'zir, sentence the appellant to undergo seven years' R.I. The appellant is also liable to pay Arsh which is half of the Diyat. The occurrence was committed in the year 1997 and the amount of Diyat in that year was Rs.2,12,

664. So he is ordered to pay Rs.1,06,332. as Arsh, failing which he will remain in jail and would undergo S.I till the .payment of amount of Arsh.

23. By taking into account the relevant facts and circumstances of the case, I am of the view -that the appellant is not entitled to the benefit of section 382-B, Cr.P.C. The same as such is not extended to him.

24. Resultantly, the appeal to the extent of Shabbir and Afzal is accepted and they are acquitted of the charges against them. However, appeal to the extent of Amjad Hussain is dismissed with modification of his sentence. Sentence of Qisas is not confirmed.

25. For the reasons recorded, I find no force in the Criminal Revision, which is dismissed. (Sd.) Zafar Pasha Chaudhry, J. Criminal Miscellaneous No. 1191/M of 2000 Syed Afzal Haider, Advocate for the Applicant/Appellant. Mr. Azam Nazir Tarar, Advocate, for the Complainant. Miss Najma Parveen, Advocate for the State. After the judgment in main appeal i.e. Criminal Appeal No.680 of 1999 had been delivered on 22-5-2000, the instant application under section 561-A, Cr.P.C. was moved praying that the necessary correction may please be made in the interest of justice as according to the applicant Amjad Hussain, inadvertently a sum of Rs.1,06,332 had been ordered to be paid as Arsh whereas, in fact, the applicant/appellant, is liable to pay Rs.53,161.50 because admittedly the relevant injury had not been inflicted by the applicant alone and the same had been caused by the applicant alongwith his unknown co-accused.

2. Elaborate observations have been made in para., No. 19 of the judgment. The learned counsel for the applicant on the basis of the observations in that para. of the judgment contends that injury in question had been caused not by the applicant, therefore, he is liable to pay half of the Arsh. In support of his contention, the learned counsel submits that on the basis of seven principles enunciated by the Holy Qur'an, the liability of an offender is restricted only to the extent of the act done by him and he cannot be burdened by any act or omission amounted to an offence committed by or attributed to some one else; that in published by 1st Edition, 1986 under section 212, it has been laid down that in case there are more than one accused persons and they collectively commit murder then all of them will jointly be liable to pay one Diyat and every one will be sharing the same keeping in view the number of the offenders; that in the book of published by 3rd Edition of 1990 at pages 128 and 129, three cases have been cited and the principle held was that if a group of persons commit murder of an individual then as a Qisas, all the members of that group will be killed for that murder but it is clarified that there is consensus of opinion of all the eminent jurists that as regards payment of Diyat, every individual shall be liable to pay the same to the extent of his share because for one murder there will be only one Diyat. This view is also supported by (sic) Volume 7 published by Diyal Singh Trust Library, Lahore, pages 734 to 736, therefore, in view of the above precedents, it is deduced by the learned counsel by way of analogy that if two persons cause injury then they will be liable to Arsh but they will be liable to half of the same and no individual offender would be liable to pay the entire amount of Arsh. In the instant case, admittedly, the injury resulted in amputation of leg had been inflicted by two persons jointly, therefore, the applicant/appellant will be liable to pay half of the Arsh already determined by this Court.

3. As against that, the learned counsel for complainant has opposed the prayer vigorously and submits that this application, in fact, is tantamount to a review petition which is not permissible in view of section 369, Cr.P.C.; that as this aspect of the case has already been considered and taken into account, the same is not subject to alteration through review and that under section 53, P.P.C. Arsh has been categorized as one of the mode of punishment, therefore, if two or more persons jointly commit an offence then each and every one of the assailants can be imposed the punishment equally i.e. if two or more persons commit an offence of murder or intend to commit murder each one of the assailants can be imposed the same punishment and the punishment cannot be bifurcated or divided as prayed by the learned counsel for the applicant/appellant. The learned counsel for the appellant at this juncture, however, contends and clarify that although under section 53, P.P.C., Arsh has been specified as one of the mode of punishments yet under section 299, P.P.C. Arsh has been described as a compensation anti the same cannot be treated as a punishment similar to that of death or imprisonment, etc.

4. Both the learned counsel have advanced very cogent and forcible arguments in support of their respective contentions. However, considering that the matter is pending before the Hon'ble Supreme Court, it would be more apt arid appropriate that the controversy with regard to liability of payment of Arsh may be determined and decided by the Hon'ble Supreme Court. Even otherwise, the question involved herein is of public importance and determination by the Hon'ble Supreme Court will provide guidelines in future cases as well. This application, therefore, is disposed of with the above observations. N.H.Q./A-181/L Sentence modified.