2026 PLP 606 (YLR)

Khawaja Muhammad Nasim, J.

These appeals have arisen out of the consolidated judgment of the Shariat Appellate Bench of the High Court (hereinafter to be referred as "High Court") dated 13.10.2023, whereby, Criminal Appeal No.66/2019, filed by convict-appellant, Mohsin Shamim, has been partly accepted while converting the death sentence as 'Tazir' into life imprisonment, whereas, Crime Reference No.67/2019, filed by the trial Court for confirmation of the death sentence awarded to the convict-appellant, has been answered in negative.

2. The brief facts forming the background of these appeals are that the complainant, Zahid Hussain, submitted a written report at Police Station, Afzalpur, on 18.12.2003, at 11:30 am. According to the averments made in the report, the complainant, along with his brothers, Raja Tajammal Hussain, Banaras Hussain and cousin Raja Nawaz, came on Jatlan Head near to Jatlan Bridge. They sat on a bench at a vegetable shop and were talking to each other. It was further averred that at 10:30 am, two Cuore cars without number plates, driven by Waseem son of Shabbir and Sakhawat son of Basharat, came from Vespa Factory and Mohsin Shamim, Amanullah son of Shamim, Kaqbad, Javed sons of Kamal, Zubair, Younas sons of Fazal, Abid Hussain son of Ashraf and Sakhawat son of Basharat, were also sitting in the cars. Suddenly, they stopped the cars and except drivers, the other persons carrying lethal weapons, came out and raised lalkara that, "we will not let you go alive today". All the accused having intention of murder started reckless firing. It was stated that Mohsin Shameem and Kaqbad fired at his brother Tajammal Hussain, which hit him at his head, on account of which, he fell down on the ground and rest of the accused having common intention of the murder also opened fire on Tajammal Hussain as well as Banaras Hussain, in consequence whereof, they became severely injured. It was further stated that the accused also fired upon Raja Nawaz, Shamim son of Yousaf Khan and Gulraiz son of Pehelwan and they saved their lives while hiding under the bridge. After committing the incident, the accused persons while driving the cars, fled away from the place of occurrence towards Sra-e-Alamgir road. Tajammal Hussain and Banaras Hussain, who were severely injured were taken to the D.H.Q. Hospital, Mirpur. Tajammal Hussain, succumbed to the injuries on the way to the hospital, whereas, Banaras Hussain, who was in a critical condition, was hospitalized. It was alleged that this incident took place with the abetment of Raja Karamtullah. The motive behind the occurrence, as stated, is that a few years ago the brother of Raja Karamtullah was murdered and Tajammal Hussain was accused for that murder while there was a land dispute with son-in-law of Chaudhary Yousaf, hence, legal proceedings may initiated against the culprits.

3. On this report, FIR No. 153/03, in the offences under sections 302, 324, 147, 148, 149 and 109, APC, was registered at Police Station Afzalpur, on 18.12.2003, at 11:30 a.m. After registration of the case, the police went on the spot, recovered some clay sustained with blood and the empties in its possession. The police presented the challan in the Court of competent jurisdiction, on 16.06.2004, to the extent of accused, Muhammad Waseem, Kaqbad, Javed, Zubair, Muhammad Younas, Sakhawat, Amaanullah, Abid, Raja Karamatullah and Snowar, whereas, the rest of the accused were cited in column No. 2 of the challan, as absconded. The afore-mentioned accused, filed an application under Section 249-A, Cr.P.C., before the District Criminal Court, Mirpur which was accepted and they were acquitted of the charge, vide order dated 24.05.2005. The said order was challenged by way of appeal before the Shariat Court. The learned single judge of the Shariat Court dismissed the appeal vide Judgment dated 22.10.2009. Meanwhile, the convict-appellant, Mohsin Shamim, was arrested on 03.07.2007 and recovery of Kalashnikov was effected on his pointation on 12.07.2007. After necessary investigation, subsequent challan was presented to the extent of the convict-appellant in the offences under sections 302, 324, and 34, APC, read with section 13 of the Arms Act, 1965, on 18.07.2007. The accused was examined under Section 242, Cr.P.C. on 03.08.2007, who pleaded not guilty and claimed trial, whereupon, the prosecution was directed to lead evidence in support of the charge. The prosecution produced 32 out of 54 witnesses whereas, the evidence of 22 witnesses was abandoned/closed. Thereafter, the statement of the accused under section 342, Cr.P.C. was recorded on 02.08.2018. The accused again pleaded not guilty. The accused neither opted to record his statement on oath under section 340 (2), Cr.P.C. nor produced evidence in defense. At the conclusion of the trial, the learned Additional District Criminal Court, Mirpur, vide Judgement dated 16.08.2018, found the convict-appellant, guilty for the murder of the deceased, i.e. Tajammal Hussain and sentenced him to death as 'Tazir' under section 302 (b), APC. He was also sentenced to 4 years' rigorous imprisonment and fine of Rs. 10,000/-under section 13 of the Arms Act, 1965. It was ordered that in case of default of fine, he will serve 6 months' simple imprisonment. It was further ordered that he shall pay compensation to the tune of Rs. 10,00,000/- and in case of non-payment, the same shall be recovered from the convict under the Land Revenue Act. The benefit of section 382-B, Cr.P.C. was also extended to the convict. Whereas, the accused Khalid, Mehboob and Afzal remained absconded and proceedings under section 512, Cr.P.C. were initiated against them. Feeling aggrieved from the judgment dated 16.08.2018, passed by the learned Additional District Criminal Court, Mirpur, the convict-appellant filed an appeal before the High Court. A reference was also sent by the Additional District Court of Criminal Jurisdiction, Mirpur, for confirmation of the death sentence awarded to the convict. The learned High Court, after necessary proceedings, partly accepted the appeal filed by the convict-appellant and modified the judgment of the trial Court while converting the death sentence as 'Tazir' into life imprisonment and the reference sent by the trial Court for confirmation of death sentence awarded to the convict-appellant was answered in negative, whereas, the rest of the sentences were maintained, vide impugned judgment dated 13.10.2023. Both the parties have now approached this Court through the titled separate appeals. The convict-appellant has prayed for setting aside the judgment of both the Courts below and requested for his acquittal, whereas, the complainant-appellants have prayed for restoration of the sentence awarded by the trial Court.

4. Mr. Reaz Ahmed Alam, the learned Advocate representing the convict-appellant, contended that the prosecution has miserably failed to establish the commission of alleged offences against the convict-appellant. According to prosecution version as narrated in the FIR, the convict-appellant and the accused Kaqbad have fired upon Tajammal Hussain, deceased, which hit him on his head and he fell down. Thereafter all the other accused fired at the deceased. The so-called eye-witnesses narrated the same story in their Court statement. The accused Kaqbad was acquitted by the Trial Court under Section 249-A, Cr.P.C. and the order of acquittal was maintained by the Shariat Court, but the appellant has been convicted. In this way, the convict-appellant is also entitled to be acquitted. He further contended that the prosecution has cited Zahid Hussain, Banaras Hussain, Gulriaz Khan, Muhammad Nawaz and Muhammad Shamim, as eye-witnesses. In the report under section 173, Cr.P.C., but failed to produce Gulraiz Khan, Muhammad Nawaz and Muhammad Shamim and only produced Zahid Hussain and Banaras Hussain who are real brothers of the deceased. According to him, only interested witnesses have been produced by the prosecution and no satisfactory explanation has been furnished for not producing independent witnesses in support of the prosecution version, thus, this sole factor is sufficient to make the prosecution story doubtful and unreliable. He submitted that the prosecution has totally failed to prove the recovery of the crime-weapon as no independent recovery witness has been produced by the prosecution. The purgation of the witnesses has also not been conducted according to law. He further submitted that for conviction in criminal cases, it is the basic duty of the prosecution to bring home, the guilt of culprit, by production of evidence beyond the shadow of doubt, whereas, in the instant case, the whole prosecution story is full of mysteries and is unbelievable. According to the complainant's own version taken in the FIR, the basic important witnesses have not been produced, meaning thereby, the prosecution has intentionally withheld this evidence, thus, these are the material facts which demand acquittal of the convict-appellant. As an alternate, the learned counsel submitted that if at all the Court reaches the conclusion that it is not a case of acquittal, then in the given circumstances, it is a clear case of lesser punishment and the punishment to the extent of sentence already undergone will meet the required ends of justice. He also submitted that the cross-appeal filed by the complainant party has no substance and is liable to be dismissed. In support of his submissions, the learned counsel referred to and relied upon the following citations:-

1. Abdul Hakeem v. The State and 2 others [PLD 1990 Shariat Court (AJ&K) 3].

2. Shahsawar and 2 others v. The State [1994 PCr.LJ 999]

3. Ameer Ali v. The State [2004 PCr.LJ 1649]

4. Tufail Hussain Shah v. The State [1994 SCR 275]

5. Muhammad Mushtaq v. State [2001 YLR 1164]

6. Muhammad Arshad v. Muhammad Mushtaq and 5 others [2004 MLD 1797]

5. On the other hand, Barrister Humayun Nawaz Khan, Advocate, the learned counsel appearing on behalf of the complainant-appellants, submitted that the prosecution has succeeded to establish the commission of alleged offences by the convict-appellant. This is a case of direct evidence and broad daylight. Two eye-witnesses have been produced by the prosecution. Neither there is any doubt regarding identification of the convict nor any contradiction is found in the statements of the eye-witnesses. He further submitted that the weapon of offence was recovered from the convict on his pointation. The corroboratory evidence, i.e., the post-mortem report and the firearm expert report are also fully establishing the commission of offence by the convict. He contended that appreciation of evidence clearly leads to the conclusion that commission of the offence by the convict has fully been proved. The prosecution is not bound to produce all the witnesses cited in the challan. He further contended that the convict-appellant remained absconded for almost more than 4 years and it is a recognized principle of criminal administration of justice that where an accused remains absconder after commission of the offence, an adverse inference is drawn against him. Furthermore, the convict-appellant has committed a heinous offence; hence he is not entitled to any leniency. The learned trial Court had rightly awarded him the death sentence as 'Tazir' but the learned High Court, without any legal justification, converted the death sentence into life imprisonment. He alleged that in the light of peculiar facts, the sentence awarded to the convict-appellant, by the trial Court be restored and the appeal filed by the convict-appellant may be dismissed. In support of his assertions, the learned counsel referred to and relied upon the following case law:-

1. Muhammad Ramzan v. Zulfiqar Ahmed [2003 SCMR 785]

2. Shaukat v. The State [PLD 1982 FSC 179]

3. Liaqat Hussain and another v. Ulfat Khan and another [PLD 2007-SC (AJ&K) 102]

4. Mir Hassan and others v. State and others [1999 SCMR 1418]

5. Muhammad Ehsan v. The State [2006 SCMR 1857]

6. Mian Muhammad Nawaz Sharif and others v. The State and others [PLD 2002 Karachi 152]

7. Mst. Mumtaz Begum v. Ghulam Farid and another [2003 SCMR 647]

8. Qaisar Khan and others v. State and others [2009 SCMR 471].

6. Sh. Masood Iqbal, the learned Advocate-General, while appearing on behalf of the State, has adopted the arguments advanced by Barrister Humayun Nawaz Khan, Advocate.

7. We have heard the learned Advocates representing the parties and have gone through the record of the case along with the impugned judgement. The salient features of the prosecution case have already been narrated hereinabove, therefore, the same need not to be repeated for the sake of brevity. Suffice it to observe that an unfortunate incident which claimed the life of Tajammal Hussain, deceased, took place on 18th December 2003, at 10:30 am and the matter was reported at the police station Afzalpur on the same day at 11:30 am. The prosecution case consists upon the ocular evidence, recovery of crime-weapon, post-mortem report and site-plan etc. The learned counsel for the convict-appellant has pointed out some minor flaws which according to his estimation amount to falsify the prosecution story, hence, the prosecution has failed to prove his case beyond any shadow of doubt. In the light of peculiar facts of this case, all the objections raised on behalf of defense, the contradictions amongst the statements of witnesses or variation among the other ocular, medical and circumstantial evidence, proof of the recovery of the crime-weapon and relation of the prosecution witnesses, have been considered in the light of the material brought on the record. We found that none of these is of such importance which has legally prejudiced the legal rights of the convict-appellant. In the instant case, the learned trial Court awarded death sentence as 'Tazir' to the convict-appellant while the learned High Court converted the death sentence into life imprisonment. Both the parties have stressed on the quantum of sentence. The convict-appellant wants lesser punishment, whereas, the complainant party wants restoration of death sentence as 'Tazir' awarded by the trial Court. The learned High Court while attending this vital point has dived deep for drawing the conclusion that due to withholding the best piece of evidence and some other mitigating circumstances, the death sentence as 'Tazir' is modified into life imprisonment. After perusal of the entire record as well as the evidence, in the interest of justice, we are of the opinion that the witnesses cited in the challan, who can be treated as impartial witnesses, have not been produced before the Court, thus, according to the statutory provision of Article 129 of Qanun-e-Shahadat, 1984, inference can be drawn against the prosecution that such evidence has been withheld being non-supportive to the prosecution's case. Reference can be made to the case reported as Master Muhammad Siddique v. The State and another [2003 SCR 269] wherein, it was observed as under:- "...It is true that prosecution is not bound to produce all the persons who have seen the occurrence, however, if a material witness is withheld then the inference is to be drawn against the prosecution that such a witness was not supporting the case of the prosecution." While dealing with the same proposition, the Apex Court of Pakistan in the case reported as Muhammad Asif v. The State (2017 SCMR 486) has opined in para 9 as under:- "

9. In our considered opinion these two independent witnesses could provide the first degree of evidence of reliable nature, thus, adverse inference has been drawn that because they were not supporting the prosecution case so set up, therefore, they were dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the court for obvious reasons. This fact by itself is sufficient to discard the evidence of the interested and related witnesses because their evidence is not only of the second degree but also for the reason given above due to their unnatural conduct." Thus, in the light of the peculiar facts of this case and the case law referred to hereinabove, in our view, the learned High Court has rightly converted the death sentence into life imprisonment vide impugned judgment dated 13.10.2023. Even otherwise, the learned High Court has converted the death sentence as 'Tazir' into life imprisonment which is also a legal and normal punishment provided by law. This Court in the case reported as Ansar Mehmood and another v. Manazir Hussain and another [2015 SCR 770], while dealing with the same proposition, has observed as under:- "

14. The perusal of the judgment of learned Shariat Court reveals that in the opinion of Shariat Court, only the death sentence is a normal penalty. But in our opinion, in view of clear statutory provision the punishment of death or life imprisonment as "Ta'zir" are alternate sentences, hence, both can be treated as normal sentences. Our this view finds support from the latest judgment of the apex Court of Pakistan handed down in the case reported as Hassan and others v. The State and others [PLD 2013 SC 793]. It will be useful to reproduce here the relevant portion of the judgment which speaks as under- '

23. Upon the strength of the provisions of subsection (5) of section 367, Cr.P.C., it has been maintained before us that the normal sentence for an offence of murder is death and while considering a prayer for reduction of a sentence of death passed against a convict this Court may remain mindful of that statutory stipulation. We have found such a submission to be suffering from multiple misconceptions. Subsection (5) of section 367, Cr.P.C. provides as follows: (5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, then the Court shall in its judgment state the reason why sentence of death was not passed." We have not been able to find anything in the said provision of law even hinting at the sentence of death being the normal sentence in such a case. Section 302 (b), P.P.C. clearly provides for two alternative sentences, i.e. sentence of death or sentence of imprisonment for life for the offence of murder and it does not state that any one of those sentences is to be treated as the normal sentence. As a matter of fact section 302 (b), P.P.C., itself mentions that any one of the two alternative sentences provided for therein is to be passed "having regard to the facts and circumstances of the case". There are cases wherein "the facts and circumstances of the case" do not warrant a sentence of death and what is required by subsection (5) of section 367, Cr.P.C. is that such facts and circumstances of the case ought to be mentioned by the trial Court in its judgment so that the higher Courts may straightaway become aware of the same while entertaining or deciding a challenge thrown against the trial Court's judgment. We believe that the general misunderstanding or misconception about the true import of the provisions of subsection (5) of section 367, Cr.P.C. entertained by the legal community, including the courts, in this regard needs to be removed and rectified. The other misconception about subsection (5) of section 367, Cr.P.C. is that it is considered to be applicable to the entire hierarchy of criminal Courts whereas that is not the case. Subsection (5) of section 367, Cr.P.C. is placed in Chapter XXVI of Part VI of the Code of Criminal Procedure, 1898 and Part VI of the Code pertains only to 'Proceedings in Prosecutions' before a trial court. The matters pertaining to the appellate and revisional courts are provided for in Part VII of the Code and that Part of the Code does not contain any provision akin or similar to that of subsection (5) of section 367, Cr.P.C. It is, thus, evident that the requirements of subsection (5) of section 367, Cr.P.C. are relevant only to trial Court and they have no application to an appellate or revisional Court. The provisions of section 423(i)(b), Cr.P.C unambiguously show that it is well within the powers of an appellate court seized of an appeal against conviction to reduce the sentence of a convict and the requirement relevant to a trial court, as contained in subsection (5) of section 367, Cr.P.C., is not to be found in section 423(i)(b), Cr.P.C. The powers conferred upon a revisional court under sections 435 and 439, Cr.P.C. also clearly demonstrate that while exercising revisional jurisdiction a sentence can be reduced and, again the requirement relevant to a trial court, as contained in subsection (5) of section 367, Cr.P.C., is not to be found in sections 435 and 439, Cr.P.C. it, therefore, goes without saying that when an appellate or revisional court is considering a question of propriety or otherwise of a sentence passed against a convict the provisions of subsection (5) of section 367, Cr.P.C. cannot be pressed into service before it and any question of the sentence of death being the normal sentence is hardly relevant before the appellate and revisional courts.' Thus, in the light of the statutory provisions as well as principle of law enunciated by the apex Court of Pakistan, it can safely be concluded that in the punishment as "Ta'zir" for qatl-i-amd, the sentences of death and life imprisonment are alternative and both are normal sentences." In the light of what has been discussed above, both the appeals, having no force, stand dismissed. JK/58/SC(AJ&K) Appeals dismissed.