2000 P Cr (PLP)

6. When confronted with the prosecution case, the appellant pleaded that the real assailant had escaped unidentified from the place of occurrence due to darkness of the night; that he was a poor man while Sahib Khan (P.W.) was an influential landlord of the area and that he had been falsely implicated in the case due to suspicion.

7. The prosecution offered Anwar-ul-Haq (P.W.5), Muhammad Ameer (P.W.7) and the injured victim of the occurrence namely, Sahib Khan as the eye-witnesses of the said occurrence. Muhammad Ameer (P.W.7) is a driver who had gone to Sargodha to drop the family of Sahib Khan (P.W.) and had claimed that on his way back to his village the said car had gone out of order which was left at Adda Kot Bhai Khan and he then had gone to the Dara of Sahib Khan and had informed him of the same at which Sahib Khan, Anwar ul-Haq (complainant) and Muhammad Ameer (P.W.) were going towards the said Adda of Kot Bhai Khan when on the way the said Sahib Khan was attacked by Muhammad Ramzan appellant. The said Adda is about half a kilometer from the Data of Sahib Khan.

8. All these three eye-witnesses are independent witnesses of the occurrence in question: They had no reason or motive to falsely involve the appellant in this occurrence. It is true that the occurrence in question had taken place at night but since the injured P.W. and the other two eye witnesses knew the appellant very closely and intimately, therefore, the identification of the appellant at the time of occurrence could not have posed any serious problem for these eye-witnesses. Needless to -add here that at the time of firing of the shot, the appellant was alleged to be about 8/10 feet away from the injured P.W. and the other eye-witnesses. It is not the kind of distance from which the identity of the person rather well-known to the eye witnesses could have posed any difficulty. The delay in the lodging of the F.I.R. also stood reasonably explained because the injured P.W., who was A profusely bleeding, was immediately rushed to the local hospital from where he was referred to the District Headquarters Hospital at Sargodha and it was on his return from Sargodha Hospital that the complainant had lodged the F.I.R. of the present case at about 4-00 a.m. on the very night of occurrence. Nothing was brought on record to indicate any enmity of the injured P.W. with someone else which could have led to an inference that the offence in question might well have been committed by some other person and the appellant might have been substituted for the real offender.

9. Having examined the entire evidence available on record and having heard the learned counsel for the parties, I find that no exception could be taken to the finding of guilt as recorded against the appellant by the learned trial Court. His conviction under section 334 of the P.P.C. is consequently, maintained.

10. This brings me to the question of confirmation or otherwise of the punishment of Qisas imposed upon the appellant.

11. It may be mentioned here that in view of the legal and factual questions involved in this matter, I had sought the assistance of Mr. Ejaz Hussain Batalvi, Advocate, Dr. Riaz-ul-Hassan Gilani, Advocate, Mrs. Nasira Javed Iqbal, Advocate, Ms. Asma Jahangir, Advocate and Dr. Ejaz Ahsan, the then Professor of Surgery and Principal of King Edward Medical College, Lahore.

11. The provisions of section 337-P of the P.P.C. command that Qisas be executed in public and it was in obedience to this requirement of law that the learned trial Magistrate had directed the amputation of the appellant's left leg in the Stadium of the City of Shahpur.

12. On my query, Dr. Ejaz Ahsan, who, as has been mentioned above, was a renowned Professor of Surgery and the Principal of the King Edward Medical College, had categorically opined that amputation of leg from above the knee joint of a human being involved a major surgical operation. He had added that all surgical operations were required to be done in the specified operation theaters which guaranteed a completely disinfected environment and availability of a large number of facilities to meet any emergent situation arising out of such an operation to ensure the safety of the life of such a human being. He had gone on to add that the operation theatres am where in the world permitted only authorized persons and no member of the public was to be permitted into such operation theatres to avoid any fatal consequences, emanating from infection. He was of the firm views that a major surgical operation to amputate a major limb of a. body of a human being, could, in no circumstances, be carried out at a public place, such as a public stadium without exposing the person, concerned to serious danger and threat to his life.

13. Fortified by the opinion of Dr. Ejaz Ahsan, I am of the considered view that executing the punishment of Qisas in the, present case on the person of the appellant in a public place would not be possible without endangering the life of-the appellant. The provisions of section 334, P.P.C. enjoined the imposition of punishment of Qisas in consultation with some authorized Medical Officer. The learned trial Magistrate had unfortunately awarded the punishment of Qisas to the appellant in the present case, in the above noticed manner, without consulting an authorized Medical Officer.

14. Faced with this situation, I am left with no alternative but to refuse to confirm the impugned punishment of Qisas awarded to Muhammad Ramzan, which punishment is consequently not confirmed. He is instead ordered to suffer eight years' R.I. by way of Tazir. He is also directed to pay Arsh which is one-half of the amount of Diyat in terms-of section 337-R of the P.P.C. The prescribed amount of Diyat during the days of occurrence was Rs.1,06,967.50 and the appellant is, thus, directed to pay an amount of Rs.53,483.75 as Arsh. This entire amount of Arsh shall be paid to Sahib Khan (P.W.) as required under section 337-Z of the P.P.C. The appellant shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.

15. Since it is available on record that the appellant was a servant of Sahib Khan (P.W.); therefore, he does not appear to be a man with the kind of means which could permit him to pay the entire amount in a lump sum. Consequently, in terms of-section 337-X of the P.P.C., I permit the appellant to pay this amount of Arsh in 36 monthly instalments from today. It is further directed that when the appellant has suffered the entire period of 8 years' R.I. awarded to him, he shall not be kept in custody for the purpose of securing payment of Arsh and shall instead be released on bail if he furnishes security equal to the amount of Arsh to the satisfaction of the learned trial Court.

16. Criminal Q. Reference No. 1 of 1993 and Criminal Appeal No. 156 of 1993 are disposed of in the above terms.

17. Before I part with this judgment, I would like to make a mention of certain matters which have come to my notice in the course of deciding the above matters and which warrant attention and action on the par of the law makers and on the part of tile executive Government.

18. The Legislature and the Government should seriously consider the desirability of a direction relating to the execution of punishment of Qisas, in hurt cases, in public. The law-makers should look for any Injunction contained either in the Holy Qur'an or in the Sunnah of Holy Prophet (p.b.u.h.) which categorically command the kind of punishment which is subject-matter of the present proceedings, to be executed only in public. This is a seriously debateable situation and deserves a serious probe and consideration by the Legislature and the executive Government.

19. There is yet another aspect of the matter which also warrants attention of those concerned.

20. By virtue of the provisions of section 30 of the Cr.P.C. the offence punishable under section 334 of the P.P.C. is triable by a Magistrate invested with powers under the provisions of the said Section 30 of the Cr.P.C. Against conviction of a person inter alia by a Judicial Magistrate, an appeal lies to the Court of Sessions although in certain situations mentioned in the proviso to section 408 of the Cr.P.C. the appeals are directly competent before the High Court from conviction and punishments recorded by the Magistrates but the punishment of Qisas awarded for causing hurt does not fall within the ambit of the said situations falling in the proviso to said section 408 of the Cr.P.C. On the other hand, according to section 338-D, P.P.C. such a sentence of Qisas awarded for causing hurt could not be executed unless the same was confirmed by the High Court. Thus, the provisions of section 30 of the Cr.P.C. read with the provisions of section 408 of the said Code and the provisions of section 338-D of the P.P.C. create a serious anomaly which requires immediate attention and resolution by the law-giver and the Government. One way out of this problem is that such-like cases could be included under clause (b) of the proviso to section 408 of the Cr.P.C. It may be added here that in the peculiar circumstances of the present case, I have decided the appellant's present Appeal bearing No.156 of 1993 in exercise of the powers vested in this Court under section 561-A of the Cr.P.C.

21. A copy of this judgment shall be sent forthwith to the Secretary, Ministry of Law and Parliamentary Affairs for his information, attention and action. H.B.T./M-169/L Order accordingly