2011 SCMR 1487 (PLP)

SYED ZAWWAR HUSSAIN JAFFERY, J.

This direct appeal has been filed by the appellant against the judgment dated 30-1-2001 passed by the Lahore High Court, Lahore whereby appeal filed by the State against the appellant was accepted. The appellant was convicted and sentenced under section 302, P.P.C. for imprisonment for life on both counts with fine.

2. The appellant (Nazar Muhammad) was tried by learned Sessions. Judge, Okara, for committing mactation of one Mst. Razia Bibi and her son Faqir Hussain, aged 7 years. The trial court finding the appellant guilty of the said charge, convicted him under section 304, Part-II, P.P.C. and sentenced him to R.I for three years on two counts with a fine of Rs. 5,000 on each count or in default thereof to further undergo R.I, for one year on each count. Half of the fine, if realized, was directed to be paid to the heirs of the deceased. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was, however, extended to him. The appellant did not challenge the judgment regarding his conviction and sentence but the State filed an appeal under section 417, Cr.P.C. impugning the said judgment praying therein that the acquittal of the appellant under section 302, P.P.C. be set aside, he be convicted and be punished accordingly and his conviction under section 304, Part 11, P.P.C. be converted into under section 302, P.P.C. The appeal of the State was accepted and the appellant was convicted and sentenced under section 302, P.P.C. for life imprisonment on both the counts with a fine of Rs. 20,000 on each count or in default thereof to further undergo two years' R.I. The appellant has challenged his conviction and sentence awarded by the learned High Court through this appeal.

3. The precise facts as enumerated in the F.I.R. are that one Muhammad Din son of Ghulam Muhammad lives in his own place in village Qadirabad. Nazar Muhammad appellant, his real nephew was annoyed with his father and, as such, used to tether his cattle at his Dera. Three buffaloes of Nazar Muhammad died because of diphtheria two months before. A sort of epidemic broke out in the village which consumed lives of animals of many people. On 24-8-1986 Mst. Rajjan wife of Nazar Muhammad came to the Dhari of Muhammad Din. She told Mst. Razia Bibi wife of Muhammad Din that she had administered poison to the buffaloes. A quarrel took place between the two. Mst. Rajjan Bibi left for her house while still abusing and complained before her husband. At about Maghribwela, Muhammad Din went to the Dhari of Muhammad Sharif to get a spade. Noise started coming from the side of Dhari of Muhammad Din. He along with Muhammad Aslam and Muhammad Tufail proceeded towards the spot. They saw that Nazar Muhammad (appellant) delivered forceful hatchet blows on the person of Mst. Razia Bibi wife of Muhammad Din and his son Faqir Hussain aged 7 years. Both the deceased were sitting on a cot at that time. They sustained several injuries on different parts of their bodies. The appellant threatened Muhammad Din and others P.Ws. not to interfere otherwise they will also be dealt in the same manner. Appellant succeeded in decamping from the spot along with his hatchet. Mst. Razia and Faqir Hussain succumbed to their injuries at the spot. As. per F.I.R. the motive was that appellant Nazar Muhammad entertained a suspicion that his buffaloes had been killed by Mst. Razia. Complainant Muhammad Din proceeded towards Police Station where F.I.R. (Exh.PA) was recorded by Iftikhar Ahmed, Inspector/SHO (P.W.9) at 10-30 p.m. on the same day. After the registration of the F.I.R. Inspector Iftikhar Ahmed proceeded towards the spot and inspected the dead bodies of Mst.Razia and Faqir Hussain which were lying on the cot. He prepared their inquest reports (Exits. PK and PL). He dispatched their dead bodies to the mortuary for postmortem examination through Muhammad Ashraf, Constable (P.W.8): He secured bloodstained soil from the place of occurrence through memo Exh. PB, duly attested by Muhammad Tufail and Muhammad Aslam (P.Ws. 3 and 4). He also secured bloodstained Julli (P1) and a pillow (P2) from the place of occurrence through memo Exlt. PC, duly attested by Muhammad Saeed (P.W.6) and Nazir Ahmad, P.W. The articles were made into sealed parcels. The site plan was also prepared by Saleemullah, Draftsman, as (Exhts.PN and PN/1). After due investigation the case was challaned in the court having jurisdiction under section 302, P.P.C. The formal charge was framed against the appellant but he pleaded not guilty and claimed trial.

4. The prosecution examined as many as 10 witnesses in support of their case. P.W.3 Muhammad Tufail and P.W.4 Muhammad Aslam are eye-witnesses of the occurrence. P.W.3 Muhammad Tufail and P.W.4 Muhammad Aslam being eye-witnesses of the occurrence are also witnesses of the recovery memo Exh.PB by which the police took into possession bloodstained earth from the place of occurrence. They are also the marginal witnesses of the recovery memo Exh.PC by which the Police took into possession bloodstained Julli P.1 and blood stained pillow P.2 and sealed them into parcel at the spot. P.W.5 Dr. Zakir Hussain conducted postmortem examination of the dead body of Faqir Hussain, deceased, on 25-8-1986 Exh.PD and diagram of injuries Exh.PD/

1. On the same day he conducted postmortem examination of Mst. Razia Exh.PE and diagram of injuries Exh.PE/1. P.W.6 Muhammad Saeed is a marginal witness to the recovery memo Exh.PF by which the police took into possession blood-stained clothes of the accused comprising of shirt P-3 and chadar P-4 at the time of his arrest which were sealed into parcel. He is also a marginal witness to the recovery memo Exh.PG when the accused (appellant) while in police custody lead to the recovery of blood-stained hatchet P 5, which were sealed into parcel at the spot after recovery. P.W.7 Ghulam Qadir, Head Constable, received 4 sealed parcels from the Investigating Officer and handed over the same to Muhammad Ashraf, Constable No. 137 intact. P.W.8 Muhammad Ashraf Police Constable No. 137 was entrusted the dead bodies of the both the deceased for postmortem examination which he delivered to the Doctor for postmortem examination. After the postmortem examination, he received the last worn clothes. The last worn clothes were handed over to the Investigating Officer. He received sealed parcels from P.W.7 Ghulam Qadir and delivered in the office of Chemical Examiner, Lahore. P.W.9 Iftikhar Ahmed, SHO recorded the F.I.R. as Exh.PA on the statement of Muhammad Din (Complainant). The inquest report was also prepared relating to Mst. Razia, Exh.PJ and Faqir Hussain Exh.PL. Blood-stained earth was also collected as Exh.PB and blood-stained Julli P1 and blood stained pillow P2 from the place of occurrence vide recovery memo Exh.PC and sealed them into two different parcels. The said Investigating Officer arrested the accused on 26-8-2006 along with blood stained shirt P 3 and blood stained chadar P-4 which were taken into possession vide memo Exh.PF and sealed into parcel. The accused led to the recovery of bloodstained crime hatchet P5 which was taken into possession vide memo Exh.PG and sealed into parcel. A rough sketch of place of recovery of hatchet Exh.PM and site plan of place of occurrence. He recorded the statements of the prosecution witnesses, completed the investigation and submitted the challan in the court. The trial court recorded the prosecution evidence. The statement of the accused under section 342, Cr.P.C. was recorded on 13-10-1989 but he denied the prosecution story, factum of recovery of bloodstained clothes and blood-stained hatchet and pleaded that in fact occurrence took place on grave and sudden provocation which version was suppressed by the prosecution. All the prosecution witnesses are related inter se and they were not present at the time of occurrence and they falsely deposed against him. He got recorded his statement as defence witness under section 340(2), Cr.P.C.

5. Prosecution case rests upon motive, ocular evidence, recoveries during the investigation and medical evidence. The trail Court disbelieved the prosecution evidence and convicted and sentenced under section 304, Part II, P.P.C. for causing the death of Mst. Razia for three years' R.I. along with a fine of Rs. 5,000 and in default whereof the appellant to further undergo R.I. for one year. He was further convicted under section 304, Part II, P.P.C. for causing death of Faqir Hussain and sentenced him R.I for three years along with a fine of Rs.5,000 and default whereof to further undergo R.I. for one year and observed that both the sentences shall run concurrently with the benefit of section 382-B, Cr.P.C. and the fine, if recovered, shall be paid to the legal heirs of the deceased to the extent of one half. The appellant did not challenge his conviction and sentence but State preferred an appeal through Public Prosecutor Punjab on 26-5-1988 under section 417, Cr.P.C. against the judgment dated 8-12-1997 passed by the learned Sessions Judge. Criminal Appeal No. 1007 of 1988 was heard in the absence of the appellant and the same was accepted with an observation that the provisions of section 304, Part II, P.P.C. were not at all attracted to the facts and circumstances of the case and his conviction as such was illegal. A clear cut case under section 302, P.P.C. was made out, therefore, the conviction awarded by the trial court was set aside and the appellant was convicted under section 302, P.P.C. on two counts and accordingly he was convicted and sentenced imprisonment for life on both counts with a fine of Rs. 20,000 on each count or in default whereof to further undergo R.I. for two years. Half of fine, if recovered, shall be paid to the legal heirs of both the deceased as per their respective shares as compensation. It was further observed that both the sentences to run concurrently and extended the benefit of section 382-B, Cr.P.C. Hence this direct appeal.

6. Mr. M. Zaman Bhatti, learned counsel for the appellant at the very outset submitted that under the law no man shall be condemned unheard. The appellate court has not provided any opportunity to the appellant to the proceedings of the case which has effected the right of the appellant and the judgment is coram-non judice in the circumstances. The trial court accepted the plea of sudden provocation and convicted the appellant under section 304, Part II, P.P.C. by dis-believing prosecution evidence. Credibility of the witnesses was not taken into consideration by the trial court regarding their presence at the time of incident. The acquittal appeal filed by the State through the Public Prosecutor, Punjab, was not maintainable as the appellant was convicted by the trial Court-on the plea of guilt and the appeal was incompetent. It is further urged that the Public Prosecutor did not annex the copy of sanction order accorded by the Provincial Government. The judgment delivered by the appellate court has no sanctity as mis-carriage of justice has been made by convicting the appellant under section 302, P.P.C. in absentia by modifying the sentence to imprisonment for life on both the counts with a fine of Rs. 20,000 on each count. Since the appellate judgment has been delivered having condemned un-heard and Maxim audi alteram partem will act upon. He also urged that under Article 25 of the Constitution all citizens are equal before law and are entitled to equal protection of law but the appellate court proceeded the case in haste and delivered the judgment on 30-1-2001 whereas the appellant was re-arrested on 31-1-2001. He was remanded to judicial custody for serving out the sentence. Therefore, the delay in filing the appeal by 447 days may be ignored as the appellate judgment is without jurisdiction. The view taken by the Division Bench in Criminal Appeal No. 1007 of 1988 is liable to be set aside and the judgment of the trial court may be maintained. He has also taken the plea that the appellant was condemned unheard to the proceedings which were judicial in form and his rights have been taken away and no one should have been condemned un-heard. In support of his arguments, he has relied upon the following case-law:-- (1) Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) (2) Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) (3) Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan (PLD 1964 SC 422) (4) Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) (5) Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758) 6-A. Conversely Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab, supported the impugned judgment half heartedly and submits that the appellant was initially arrested on 26-84986. The learned Sessions Judge after recording the prosecution evidence and defence version convicted the appellant under section.304, Part II, P.P.C. and awarded three years' R.I. on two counts. The Public Prosecutor Punjab filed an appeal against the appellant against the judgment of the trial Court by which the trial court acquitted the appellant of charge under section 302, P.P.C. filed on the ground that the trial court has erred in relying the statements of three eye-witnesses. The killing of two deceased by the appellant was in no way justified nor it would fall within the ambit of section 304, Part II, P.P.C. There was no element of grave and sudden provocation against both the deceased but it should have been against Sheema and Murtaza who according to him having illicit relations. The killing of the deceased was not justified therefore the acquittal of the appellant under section 304, Part II, P.P.C. be set aside. The appellant was released on 23-9-2003 and furnished the bail bond in the sum of Rs.20,000 and thereafter he absconded, therefore, non-bailable warrants were issued on 11-11-2000. The appellant was re-arrested on 31-1-2001. He admitted that the judgment was delivered by the Division Bench of the Lahore High Court, Lahore, on 30-1-2001 one day before the arrest of the appellant. Therefore, in view of the facts on record he submitted that the impugned judgment may be set aside and the case be remanded to the appellate court to hear appeal afresh as the appellant has also challenged the judgment being coram non judice.

7. We have heard the arguments of learned counsel for the respective parties and gone through the case-law authorities cited at the Bar. Admittedly the impugned judgment in Criminal Appeal No.1007 of 1988 was heard by the learned Division Bench of the Lahore High Court, Lahore, in absentia and there is no observation of the learned Division Bench that any step was taken regarding the arrest of the accused before the conclusion of the appeal. The impugned judgment was delivered on 30-1-2001 whereas the appellant was arrested in pursuance of non-bailable warrants on 31-1-2001 and the judgment was delivered one day before his arrest. It is also observed that no one appeared on behalf of the respondent before the High Court. Since the judgment was delivered and the appellant was condemned un-heard therefore the said judgment would be coram non judice in the circumstances. However, the delay of 447 days in filing this direct appeal is condoned as the judgment was passed in absentia. Other grounds urged by the learned counsel for the appellant can be advanced in the appellate court regarding the maintainability of acquittal appeal on behalf of time State. The arguments on behalf of the counsel for both the parties on merits and demerits of the case can be advanced by the parties before the appellate court.

8. In view of the foregoing reasons, the impugned judgment is set aside and the case is remanded to the appellate court to decide the acquittal appeal on merits by providing an opportunity to the appellant within a period of four months after receipt of the order of this court and progress report of day to day hearing of the case be communicated to the Registrar of this Court. The Criminal appeal is disposed of in above terms. N.H.Q./N-12/SC Case remanded.