2005 PLP 584 (YLR)

CHAUDHARY MUHAMMAD TAJ, J.‑

The above captioned two appeals arise out of the same judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 6‑8‑2002 as such are disposed of through this common order.

2. Criminal Appeal No. 21 of 2002 titled Raja Sarfraz Azam Khan and others v. The State and others has been filed against the order passed by the Shariat Court whereby the sentence of `Qisas' awarded by the District Court of Criminal Jurisdiction Bagh to appellant No.1 and sentences of three years rigorous imprisonment alongwith fine of Rs.20,000 each were awarded to appellants Nos.2 and

3. The sentence of `Qisas' was confirmed and the sentences passed against appellants Nos.2 and 3 were enhanced as ten years rigorous imprisonment alongwith fine of Rs.50,000 each, while accepting the reference and appeal filed for enhancement and dismissing the appeal filed on behalf of the appellants. The other Criminal Appeal No.24 of 2002 titled Muhammad Sagheer Khan v. Nazar Hussain and others was filed on behalf of the appellant‑complainant against the acquittal recorded by the District Court of Criminal Jurisdiction Bagh and maintained by the Shariat Court for respondents Nos.1 to 5 and for enhancement of sentences of respondents Nos. 6 and 7 whose sentences were enhanced from three years rigorous imprisonment and a fine of Rs.20,000 each to ten years rigorous imprisonment and a fine of Rs.50,000 each by the Shariat Court.

3. The facts are that a case under sections 302/34 and 324/506, APC was registered on the complaint of Muhammad Sagheer Abbasi, the complainant, on 8‑3‑1996 at Bagh Police Station. It was stated that there was a dispute about supply of water between complainant and Sudhir son of Khan Afsar Khan. The complainant who had purchased the water pipes, were taken away by the accused on which a `Punchayat' was convened where a decision was made but accused Sudhir and others did not act upon the aforesaid decision. On 8‑3‑1996 accused Sudhir and others again convened `Punchayat' where Muhammad Ishaq, Muhammad Habib Khan and Muhammad Aslam Khan were arbitrators. They also asked complainant to join the `Punchayat' on which complainant alongwith Muhammad Shabbir, his real brother, Muhammad Taj, Muhammad Aqeel and Muhammad Razzaq joined the `Punchayat' convened in the veranda of Mosque. Before the complainant reached, Sudhir, Zahir, Sarfraz, Shamraz, Muhammad Shabbir son of Ashraaf Khan, Nazar Hussain son of Noor Hussain, Naseer, Murtaza and Muhammad Ramzan were present. During the `Punchayat' Sudhir used harsh words. He was advised by the jurors to act upon the decision earlier made. The complainant told them that Sudhir and others took away the pipes and they were asked not to do so. On this, accused Sudhir, Zahir Ahmad, Shamraz, Sarfraz, Muhammad Shabbir, Nazar Hussain, Naseer and Murtaza went out of the Mosque abusing the complainant, who along with his brother Muhammad Shabbir and Muhammad Taj, came out of the Mosque. The accused who had already made a programme with a common intention attacked on them. Accused Sarfraz, Zahir and Sudhir who were armed with pistols started firing. Sarfraz and Zahjr fired at Shabbir to kill him, while Sudhir fired at Muhammad Taj who was injured. The other accused threw stones and injured Aqeel and Muhammad Razzaq. The injured persons were taken to police station Bagh when Muhammad Shabbir succumbed to the injuries. The police started investigation, collected evidence and incriminating material and thereafter challaned the case before the District Court of Criminal Jurisdiction Bagh. The trial Court after conclusion of the trial convicted and sentenced Sarfraz Azam Khan to `Qisas' while Sudhir and Zahir Ahmad were convicted and sentenced to three years rigorous imprisonment with a fine of Rs.20,000 each. The other accused challaned before the District Court of Criminal jurisdiction Bagh namely Shabbir, Nazar Hussain, Murtaza, Shamraz and Nasir Ahmad were acquitted of the charge. A further appeal by the appellants Sarfraz, Sudhir and Zahir against their conviction and sentences was filed before the Shariat Court of Azad Jammu and Kashmir while complainant also filed an appeal against acquittal and for enhancement of sentences of accused Sudhir and Zahir. The learned Chief Justice of the Shariat Court accepted the appeal to the extent of enhancement of the sentences awarded to Sudhir and Zahir which were substituted as ten years rigorous imprisonment with a fine of Rs.50,000 each while other judgment remained unchanged. The reference was also accepted. Therefore, the present two appeals have been filed on behalf of the convict‑appellants and by the complainant appellant.

4. Mr. Abdul Majid Mallick, the learned counsel representing appellants Sarfraz Azam Khan. and others,, raised following points in support of the appeal:‑‑ (i) That the prosecution has failed to establish any case through evidence against the accused‑appellants and the other acquitted‑accused persons, therefore, the orders passed by the trial Court and Shariat Court to the extent of conviction of the appellants are not maintainable; (ii) that according to the site plan prepared by the prosecuting agency the allegation of firing attributed to the appellants is negated as the same shows that the injuries were caused by the complainant party; (iii) that the statements of the prosecution witnesses suffer from major contradictions which make the case doubtful, therefore, no reliance could be placed on that evidence; (iv) that the evidence of impartial witnesses, the three jurors, was withheld and not produced in the Court and only the interested witnesses who were not only related to the complainant party but were also inimical towards the accused persons were produced. It appears that the prosecution has deliberately withheld the evidence which caused serious doubts in the prosecution story. Even otherwise, it is safe to arrive at a conclusion that those independent witnesses were not prepared to support the prosecution; (v) that it is admitted on behalf of the prosecution that both the parties received injuries during a free fight. The learned Chief Justice in the Shariat Court also held that there was a free fight between the parties. It was further observed that both the parties received injuries in the fight. It would also be important to mention that in a fight occurring in that manner it was impossible to determine the liability of any person from the crowd; (vi) that according to the prosecution story the `Punchayat' was convened at the instance of accused party which continued for a considerable time and thereafter the altercation took place between the parties which led both the parties to start fight outside the Mosque where the `Punchayat' was convened. It shows that there was no premeditation; (vii) that according to the prosecution story, the grievance which arose to the complainant party could be regarded a cause between them, therefore, it could hardly be said that the appellants were responsible for initiation of said free fight or causing fire‑arm injuries; (viii) that all the recoveries allegedly effected upon the accused persons, according to the prosecution evidence, were made before arrest of the accused persons, therefore, the case is doubtful and was concocted to rope in the accused persons; (ix) that it was the case of the prosecution that a large number of people were present during free fight between the parties, therefore, production of only interested witnesses would not prove the case beyond reasonable doubt; and (x) that both the Courts below after appreciating the evidence proceeded to acquit the accused respondents Nos.1 to

5. According to the prosecution evidence no case is made out against them. In view of the settled principles of law that acquittal cannot be set aside on artificial grounds. The learned counsel referred to the following authorities in support of his contentions:‑‑ (1) Allah Dawaya v. The State (PLD 1993 SC 35), (2) Lal Khan v. The State (1984 PCr.LJ 2263) and (3) Manzoor v. The State (1993 SCMR 1624).

5. Khawaja Shahad Ahmad, who appeared on behalf of the complainant, while contradicting the arguments addressed on behalf of the appellants and to support the appeal for enhancement of the punishment awarded by the Shariat Court to convict‑respondents Nos.6 and 7 and also to set aside the acquittal of respondents Nos. 1 to 5, argued in the following manner. (i) That the prosecution has successfully proved its case through direct and other corroboratory evidence. It was explained that the prosecution produced eye‑witnesses supported by the medical and recovery evidence alongwith other incriminating material which is sufficient to establish a strong case against the accused persons; (ii) that there was no free fight between the parties but the accused persons with the intention to kill carried their fire‑arms to Mosque where `Punchayat' was convened. They intentionally abused the complainant party and came out of the Mosque where they attacked upon them. Without any ambiguity the accused persons were nominated in the manner they committed occurrence, therefore, all the accused persons who with the common intention and object were members of the unlawful assembly as such were liable to be punished for capital punishment, therefore, acquittal of respondents Nos.1 to 5 was against law. Similarly, lesser punishment of convict‑respondents Nos.6 and 7 was also against justice; (iii) that it is not necessary to produce all the prosecution witnesses. The defence was at liberty to produce those witnesses who were left over by the prosecution in defence in case they were of the view that those witnesses would support them, therefore, no adverse inference could be drawn for those witnesses who were not produced by the prosecution; (iv) that the eye‑witnesses and other prosecution witnesses were neither related nor inimical towards the defence, therefore, the proposition of interested witnesses cannot come into play. Even otherwise, the evidence of interested witnesses cannot be thrown out but to read and consider it carefully, though in the present case there was no interested witness; (v) that it is wrong to submit that the site plan suggests otherwise than the prosecution story in the case and similarly the argument of recoveries having been made before arrest of the accused persons is also based on surmises; and (vi) that the trial Court and the Shariat Court have arrived at the conclusion that the accused party was responsible for the murder of deceased person and also to cause injuries with the firearms to the other prosecution witnesses. The responsibility of each accused was also fixed, therefore, the interference of this Court is not warranted as none of the substantial legal point is raised. However, a judgment under law is required to be modified to the extent of those accused persons who were acquitted or awarded lesser punishment. The learned counsel referred to the following authorities in support of his contentions:‑‑ (1) Saeedullah Khan v. The State (1986 SCMR 1027), (2) Wahid v. State PLD 2002 SC 62, (3) Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524, (4) Zahir Hussain Shah v. The State (2000 SCR 123), (5) Muhammad Ramzan v. The State and another 1997 PCr.LJ 1522, (6) Misri v. State 1999 PCr.LJ 116 and (7) Shabbir Ahmad v. The State 1997 PCr.LJ 1539.

6. Sardar Rafiq Mahmood Khan, the learned counsel representing the respondents in Criminal Appeal No.24 of 2002, adopted the arguments addressed by Mr. Abdul Majid Mallick and also argued that respondents Nos.1 to 5 were acquitted by the trial Court and their acquittal was upheld by the Shariat Court, therefore, there is a double presumption of innocence in their favour. It was also argued by him that enhancement of punishment by the Shariat Court keeping in view the allegation and nature of injuries was absolutely against the accepted principle of law. The learned counsel referred to the following authorities in support of his assertions:‑‑ (1) Ghulam Sarwar v. The State (PLD 1979 SC (AJ&K) 88), (2) Muhammad Mumtaz Hussain and another v. Muhammad Arshad and 2 others 2001 PCr.LJ 225, (3) Muhammad Hanif Khan and another v. State and another 2001 PCr.LJ 827 and (4) Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644.

7. Raja Ibrar Hussain, the learned Advocate‑General, supported the arguments of Kh. Shahad Ahmad, the learned counsel for the complainant‑appellant.

8. We have heard the learned counsel for the parties and also gone through the record carefully. The trial Court after conclusion of the trial proceeded to convict appellants Raja Sarfraz Azam Khan, Muhammad Sudhir Khan and Zahir Ahmed, while acquitted Nazar Hussain, Murtaza, Shamraz, Shabbir and Nasir. Appellant Sarfraz Azam Khan was convicted and sentenced `Qisas' under section 302, APC while the other convicts were awarded punishment of three years rigorous imprisonment along with a fine of Rs.20,000 each. The convict‑appellants (in Criminal Appeal No.21 of 2002) filed their appeal before the Shariat Court of Azad Jammu and Kashmir while complainant Muhammad Sagheer, respondent No.2 in the appeal, also filed appeal for enhancement of the punishment awarded to appellants Nos. 2 and 3 and for setting aside the order of acquittal passed in favour of respondents Nos. 1 to 5 (in Criminal Appeal No.24 of 2002). A reference was also forwarded to the Shariat Court. The learned Chief Justice of the Shariat Court through a consolidated order dismissed the appeal filed on behalf of the convict appellants while accepting the appeal filed by the complainant enhanced the punishment awarded to appellants Nos. 2 and 3, namely, Muhammad Sudhir Khan and Zahir Ahmed, to ten years rigorous imprisonment with a fine of Rs.50,000 each while maintained the acquittal order passed by the trial Court and thus the reference was also accepted.

9. The learned Chief Justice in the Shariat Court held in his order that there was a free fight between the parties. It was also observed that the occurrence is not disputed nor the presence of the accused persons and the complainant party as per the trend of cross‑examination, was denied. However, it was maintained that liability in the case, in view of the circumstances, has to be fixed in light of the act of the accused persons individually keeping in view the role played by them. It was further held that Sarfraz, Zahir and Sudhir, the appellants (in Criminal Appeal No. 21 of 2002) were proved to be equipped with the fire arms and they actually used the same while deceased, Shabbir Ahmad, and Muhammad Taj, P.W., were unarmed and their liability, therefore, has to be seen in that perspective. Paras. Nos. 12 and 13 of the judgment are usefully reproduced:‑‑ "(12) As far as other contention against the accused persons who are acquitted by the Court below are concerned, the prosecution evidence against them is of stoning and beating the complainant and others with kicks and fists. 'The accused persons at the same time have also suffered injuries along with the complainant party whose injury reports are also placed on the record. This suggests a free fighting, where free exchange of stones took place between the acquitted accused persons and injured persons belonging to complainant party and both the parties are injured. In a state of hurly‑burly, it is difficult rather impossible to fix the liability on anyone as to who was injured by whom. It is better to err in favour of the accused than to convict an innocent person, the trial Court has, therefore, rightly acquitted them. (13) According to the learned Advocate as all the accused persons are proved by the prosecution evidence to have attacked upon the complainant and they should be awarded the maximum sentence by setting the acquittal order. In the case in hand occurrence took place when the Jirga was being convened. Had all the accused persons connived with each other and premeditated to launch attack on the complainant party, the Jirga would not have been called as nobody commits offence by keeping eye‑witnesses to watch it. It appears that during the Jirga some altercation took place between the parties which resulted in this unhappy incident. The altercation having gone out of control, everybody resorted to the means at his disposal. The case of Sarfraz, Zahir and Sudhir, who were armed stands on a different pedestal from the other accused persons who were not armed and are accused of stoning and not taking part in killing Shabbir or being equipped with fire‑arms. The injured persons from the complainant party reciprocated stoning resulting in injuries to each other. In the absence of clear proof of conspiracy or premeditation, the common intention or object of killing the deceased by forming unlawful assembly cannot be assumed, hence, everyone of the accused persons is responsible for his own act."

10. Before adverting to the merits of prosecution evidence attacked by Mr. Abdul Majid Mallick while reading the important portions of the same during the arguments, we would like to attend certain legal points raised by the learned counsel. It was forcefully argued that the case was not proved against the appellants firstly because the impartial witnesses admittedly present in the 'Panchayat' particularly the jurors were not produced and their evidence was withheld which shows that those witnesses were not supporting the prosecution version instead the evidence of interested witnesses was brought on record. A perusal of the record shows that jurors of the 'Panchayat' were left over but the defence also did not produce the aforesaid witnesses, therefore, no adverse inference can be drawn as the prosecution is not bound to produce all the witnesses cited in the calendar but the defence can avail the opportunity of producing those witnesses if in its opinion they do not support the prosecution version. After a careful consideration, we are of the view that none of the witnesses was interested one. It will be important to mention that mere relationship with the deceased cannot be regarded, for a prosecution witness, as interested witness unless he is shown inimical towards defence. We would also like to observe that the evidence of any interested witness even if on record cannot be thrown away but it has to be appreciate with care and its corroboration is insisted, therefore, we do not find any substance in the point. Reliance in this regard may also be placed on a case reported as Abdul Rashid and. 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ

654. The relevant observations are reproduced:‑‑ " 13. ..................... It may be observed that except Abdur Rashid, complainant, it has not been shown that the other witnesses, namely, Muhammad Siddique and Walayat Khan were related to the deceased, irrespective of the fact that the mere relationship is no ground for discarding the evidence of a witness. An `interested' witness is one who falsely implicates the innocent person with the commission of offence with ulterior motive. Thus, a related witness would be interested to secure the punishment of the actual culprit and not falsely implicate a person in place of the real perpetrator of a crime .. " The proposition finds further support from a case titled Mst. Jallan v: Muhammad Riaz and others PLD 2003 SC 644 where it was held:‑‑ 10 It would not be out of context to note that there is no cavil with the proposition that the parties have got longstanding enmity against each other during course whereof they remained involved in cases of murder allegedly committed by them against each other. Learned High Court in view of such factual position rightly searched for independent corroboration. To ascertain whether the evidence furnished by both the P.Ws. i.e. Mst. Jallan and Sher rings truth or not. There is no gain in saying that the evidence furnished by e interested witnesses ordinarily cannot be discarded merely for the reason that they had relationship with the victim/ deceased. However, for safe administration of justice it becomes the duty of the Court to look forward for corroboration of such evidence from independent sources with a view to explore truth for the purpose of reaching at a just conclusion "

11. It was also argued by the learned counsel for the convict‑appellants that keeping in view the medical evidence and the statements of prosecution witnesses while appreciating site plan become untrue. It was maintained that prosecution story in view of those admitted facts becomes doubtful. So far as the contention of the learned counsel representing the appellants with regard to the allegation of firing shown in the site plan is concerned, in fact it is at variance with the medical evidence but we have to see that the prosecution produced no less than 13 witnesses in support of its version. The prosecution witnesses were injured in a fight which has been regarded a free fight by the Courts below and their presence was not doubtful as they were present in the `Panchayat'. It is to be seen as to what would be the effect of the situation arose. It is a settled proposition of law that in such situation where eye‑witnesses are available and their C evidence of course rings true after the cross‑examination any variation in the medical evidence would not affect the evidence of eye‑witnesses which has to be relied upon. The case of Saeedullah Khan v. The State(1986 SCMR 1027) can be referred in support of the proposition where the same was resolved in the following words:‑‑ "9 .We have perused the evidence on the record with the assistance of the learned counsel. According to the version of the prosecution as disclosed in the F.I.R. it is undoubtedly true that it was stated that Mst. Gul Mewa was hit with the shot fired by the appellant on her back and the bullet passed through her body and came out on the front side from her chest. However, in his deposition in the Court Muzaffar Khan complainant described the injuries, received by the deceased in the reverse order, namely, that the shot hit her from the front on her chest. It seems that he was not contradicted by confrontation with what he stated in the F.I.R. The other eye‑witness, namely Mueen Badshah while describing the occurrence stated with regard to the injuries received by the deceased ......................

10. After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed. So far as Mueen Badshah is concerned, his presence at the scene of occurrence is corroborated by the fact that he was also injured with the fire weapon and it is difficult to hold that he was not present at the scene of occurrence. In the circumstances of this case when he was being chased and running away in order to save himself from being killed by the successive shots which were being fired at him, it is not expected from him to describe with exactitude the details of the manner in which the deceased was injured, however, his testimony that it was the accused who fired at the deceased cannot be rejected on that account. Similarly the complainant whose close relation was being attempted to be murdered in his presence, must be looking at the awful scene enacted in his presence with great amount of tension and confusion about the fate of the victim. Having regard to the circumstances the contradiction in the F.I.R. and the Police version with the evidence in Court seems to pale into insignificance. As observed by the High Court, in the extract reproduced above, there can be no doubt about the presence of these witnesses at the time of occurrence and their testimony fully implicates the appellant." The proposition was also resolved in a case reported as Zahir Hussain Shah and 3 others v. The State (2000 SCR 123) as under:‑‑ ........... .It therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration but in the present case the ocular evidence gets further support from ample circumstantial evidence ....

12. It was also argued that the learned Judge in the Shariat Court has held that there was a free fight between the parties with further observation that both the parties were injured but conviction was recorded against the appellants which cannot be maintained in view of the foresaid facts as well as lacking evidence of premeditation particularly when the 'Panchayat' was convened at the instance of accused party coupled with the fact that grievance arose to the complainant party for the allegation of taking away their pipes. It may be stated that the trial Court after appreciating the evidence in accordance with the settled principles of appreciation of evidence arrived at a conclusion that the prosecution has successfully proved the case against the appellants in Criminal Appeal No.21 of 2002 for inflicting fire arm injuries to the deceased and prosecution witness resultantly Shabbir Ahmad succumbed to the injuries, therefore, conviction was recorded against them. The aforesaid view was upheld by the Shariat Court while maintaining the conviction. However, the sentences awarded to Muhammad Sudhir and Zahir Ahmad were enhanced in view of the proved allegation. Nothing has been brought, before this Court which may show that there was any misreading or non reading of the evidence and this Court is not obliged to appraise the evidence for any different view, thus, we do not find any merit in the submission. It may also be mentioned that an individual liability can be fixed keeping in view the allegation and evidence on record in a case of free fight, therefore, we also do not find any substance in the argument that conviction cannot be made in such like cases. To support the aforementioned proposition reference may be made to case reported as Shabbir Ahmad v. The State and another 1997 PCr.LJ 1539 where the same was resolved in the following words:‑‑ (7) Re‑appraisal of evidence is not a function of this Court. Once it is settled that there has been proper appraisal of the evidence this Court does not even draw conclusions different from those drawn by the first appellate Court and the trial Court. However, this Court does examine evidence to see whether there has been any gross misreading or non‑reading which may have resulted in miscarriage of justice:"

12. Kh. Shahad Ahmed, the learned counsel representing the complainant, vehemently argued that acquittal of respondents Nos.1 to 5 was against the accepted rule of evidence as on the same evidence the accused were convicted, holding therein that the evidence rings true in the circumstances of the case. It has been held in the earlier part of the order that individual liability can be fixed keeping in view the circumstances of free fight. There is no allegation of carrying any arm or otherwise inflicting any injury except the minor injuries sustained by both the parties with fists. Additionally, both the Courts below arrived at a conclusion that the respondents are entitled to the acquittal which was allowed to them. We have no reason to differ with the findings recorded by the Courts below after appreciating the evidence as discussed above.

13. After giving deep thought, we are of the view that the Shariat Court has p correctly convicted the accused‑appellants except that the sentence of `Qisas' in view of the facts that there was no premeditation as `Panchayat' was convened at the instance of the accused party which continued for it considerable time and thereafter due to some altercation the occurrence took place particularly when it was held by the Shariat Court that the accused would not like to carry such number of witnesses if they had made preparation for it. Secondly, the grievance for taking away their pipes arose to the complainant party and not to the accused. Therefore, we substitute the sentence of `Qisas' awarded to Sarfraz Azam Khan, appellant, to life imprisonment. The benefit of section 382‑B, Cr.P.C. is also extended to him as was done for the other appellants Sudhir and Zahir by the Shariat Court. With the above modification the order passed by the Shariat Court remains unchanged. Consequently, Criminal Appeal No.21 of 2002 is accepted to this extent. The other Appeal No.24 of 2002 filed by the complainant‑appellant is dismissed. H.B.T./121/SC(AJ&K) Order accordingly.