MUHAMMAD AKBAR Versus THE STATE

DR. FIDA MUHAMMAD KHAN, J.‑‑ ‑This appeal filed by Muhammad Akbar son of Ghulam Muhammad is directed against the judgment dated 30‑8‑2000 passed by learned Additional Sessions Judge‑VIII, South Karachi whereby he has convicted him under section 17(4) read with sections 20 and 24, of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 302(b), P.P.C., as Tazir, and sentenced him to death. It has also been ordered that he shall pay a sum of Rs.2,00,000 as compensation to the legal heirs of deceased under the provisions of section 544‑A, Cr.P.C. The learned trial Judge has further convicted him under section 394, P.P.C. and sentenced him to ten years R.I. with a fine of Rs.25,000 or in default of payment of fine further two years' R.I.

2. Briefly stated the case of prosecution as disclosed by Muhammad Siddique Hassan on 11‑1‑1996 before Nazir Muhammad Khan, Inspector/S.H.O., Police Station, Artillery Maidan, Karachi at 2‑00 p.m., is to the effect that while the complainant Muhammad Siddique Hassan, his partner Haji Jan Muhammad and Ali Muhammad were present in their shop "Haroon Jewellers", situated in Zaib‑un‑Nisa Street, Saddar, Karachi, a person entered into shop as a customer and asked to show him finger ring. When the complainant was going to do so, he picked out T.T. pistol and directed him to hand him over whatever he was having. Accordingly the complainant handed him over Rs.69,000. Then the accused asked Haji Jan Muhammad to hand over to him whatever was with him and suddenly started firing with a T.T. pistol which hit Haji Jan Muhammad and he fell down in injured condition. One fire shot hit, the complainant on his buttock. The fire shot alarm attracted the police to the place of occurrence. They encircled the shop and apprehended the accused alongwith T.T. Pistol. His name was disclosed as Muhammad Akbar son of Ghulam Muhammad. The amount Rs.69,000, which was forcibly taken from the complainant, was also recovered from his possession. It was alleged that this occurrence was witnessed by so many other people who had gathered at that time.

3. The aforementioned S.H.O./ Inspector Nazir Muhammad Khan, after arresting the accused with T.T. Pistol and recovery of amount of Rs.69,000 from him, prepared memo of arrest and recovery as Exh.P.12. He referred both the injured persons namely Haji Jan Muhammad and the complainant to hospital. He sent the above statement of complainant to police station for formal registration of F.I.R. On the same day he inspected the place of occurrence, recovered three empty bullets, wire lock, blood of Haji Jan Muhammad and prepared memo. Exh.P.19 to this effect. Later on the same day Haji Jan Muhammad succumbed to the injury and died at Civil Hospital, Karachi. His dead body was referred to Medico‑Legal Officer for postmortem examination. Memo. Exh.P.6 was prepared in this respect. Inquest report Exh.P.7 was also prepared. Statements of P.Ws. under section 161, Cr.P.C. were also recorded. The empties of T.T. pistol were sent to Ballistic Expert. Blood‑stained earth was sent to the Chemical Examiner. After completion of necessary investigation the appellant/accused was formally charged on 25‑3‑1996. He did not plead guilty and claimed trial.

4. At the trial prosecution examined seven witnesses in all. P. W .1 Abdullah on receipt of information on 11‑1‑1996, about the incident first went to Jinnah Hospital, Karachi. There the complainant informed him that Haji Jan Muhammad was shifted to Civil Hospital, Karachi where he came to know that Haji Jan Muhammad had expired. He signed inspection memo. Exh.6 of the dead body and inquest report Exh.7 as marginal witness. P.W.2 is Siddique. He is the complainant who reiterated his statement as mentioned hereinabove. He also added that his partner Haji Jan Muhammad died in Civil Hospital, Karachi. P.W.3 is Dr. S. Doltani. He is M.L.O. who produced Medico Legal Report Exh.16 regarding dead body of Haji Jan Muhammad. P.W.4 is Ali Muhammad. He is one of the eye‑witnesses who had entered jewellary shop at the time of occurrence. He made deposition and gave ocular account of the occurrence as narrated by the complainant P.W.5 is Dr. S.M. Nizamani. He was Medico Legal Officer, Civil, Civil Hospital, Karachi who conducted post‑mortem examination of the deceased Haji Jan Muhammad. He made the following observations and opinion:‑‑

"On external examination I found following injures on the person of deceased:

(1) Penetrating wound 1/2 c.m. in diameter left upper arm wound of entry with chairing of the wound through and through.

(2) Penetrating wound of 1/2 c.m. in diameter left upper arm medical side with confused colour wound of exit.

(3) Penetrating wound re‑entry left side chest 1/2 c.m. in size cavity deep chest.

(4) Penetrating wound 1 c.m. in diameter left knee joint, anterioly wound of entry.

(5) Penetrating wound 3 c.m. in diameter left back of lower leg with compound fracture left back tibia and fibula, wound of exit.

(6) Incised wound 6 c.m. x 2 c.m. x muscles deep back of thigh.

On internal examination found following damages:

Chest

Bonycadge normal, chest cavity full of blood bullet enter left side chest, entered the left lung pears the heart through and through passing right lung recovered from the right chest wall.

Abdomen

Stomach contains waterly fluid, rest of the organs were normal and healthy.

Head

On opening the skull, brain matter was normal and healthy.

Opinion

From the internal as well as external examination of the deceased I am of the opinion that death occurred due to shock and haemmorhage resulting from fire‑arm injury and in ordinary course, of like these injuries sufficient to cause death, especially injury No. 1. All the injuries were ante‑mortem in nature. Time between death and the post‑mortem 2 to 4 hours, time between injury and death within one hour. Bullet recovered was handed over to Investigating Officer. I prepared such post‑mortem report which I produce as Exh.21, it is same, correct and also bears my signature."

P.W.6 is Nazir Muhammad, Inspector/S.H.O. who was attracted to the afore mentioned jewellary shop on hearing of fire shot reports. He proceeded to the place of occurrence and encircled the shop. He also called other police mobile for help on wireless set and apprehended the accused. He arrested the appellant/accused red‑handed, alongwith pistol and also recovered Rs.69,000 from the pocket of his shirt. He recorded statement of the complainant and obtained his signature thereon. He sent the same to police station for registration of F.I.R. He prepared memo. of arrest of the accused alongwith T.T. pistol, recovery of amount from him in presence of complainant Ali Muhammad and Head Constable Niaz Muhammad. He sealed the pistol. He sent the injured Jan Muhammad to hospital in police mobile van. He prepared site plan, secured wire lock, three empty bullets and blood‑stained earth from the place of incident and sealed the same. He sent the injured to hospital for examination/treatment and certificate. Thereafter he took the accused to police station. He went to Civil Hospital, Karachi where he came to know about death of Haji Jan Muhammad. He inspected the dead body. He also prepared inquest report of the dead body and referred that to Medico Legal Officer for post‑mortem examination. After post‑mortem examination of the deceased; his last worn clothes were handed over to him. He sealed and secured the same. He also recorded statements of P. Ws. under section 161, Cr.P.C. He sent blood‑stained earth and blood‑stained clothes of the deceased to the Chemical Examiner. He sent the pistol recovered from the accused as well as the empties to Ballistic Expert as Exh.25 and positive report of Chemical Examiner as Exh.

26. After completion of investigation he submitted challan. P.W.7 is Dr. Manzoor Memon. He examined the injured complainant and made the following observations:‑‑

"Punctured wound 1 c.m. in diameter lateral quarded of left buttock, margin rough and inverted (wound of entry)."

After examination of injuries he referred him to C.M.O. for treatment and X‑ray examination. He issued medical certificate Exh.28 in this respect.

5. The appellant/accused Muhammad Akbar made statement under section 342, Cr.P.C. wherein he denied the allegation and pleaded innocence. He stated that the P. Ws. have been set up by the police. Responding to Question No.7 he made the statement in 'the following words:‑‑

"I was vendor Channa ( ﺎﻧﭽ ) at Saddar. Police was against me, as I was not paying Bhatta to them. I have been falsely implicated in this case, as police could not arrest actual culprits. I am innocent."

He declined to make statement on oath or produce any evidence in defence.

6. We have heard learned counsel for the parties and have perused the record with their assistance. At the outset learned counsel for the appellant raised preliminary legal objection about jurisdiction of this Court to hear and decide this appeal. Elaborating his contention he submitted that the appellant/accused was charged under section 17(4) of the Ordinance but finally he was acquitted under the said charge and instead he was convicted under section 302(b) and section 394, P.P.C. He contended that appeal against conviction under the provisions of Pakistan Penal Code lies to the Hon'ble High Court. He placed reliance on a recent judgment passed by the Hon'ble Supreme Court in "Atta Ullah v. Abdul Razzaq and another" reported as PLD 2002 Supreme Court page 534, wherein, in similar circumstances, judgment delivered by High Court was maintained and petition against the same was dismissed. The learned counsel also submitted that appellant/accused was not properly represented at the trial and in view of some apprehension on his part, he had made application to the High Court for transfer of his case but his application was still pending. He submitted that the learned Judge did not act according to the law as required under section 526, Cr.P.C. and announced the impugned judgment. Learned counsel further submitted that the appellant/accused also faced trial in the instant case for charge under section 13, Arms Act but he was acquitted which shows that recovery of the pistol allegedly used in the instant incident was not believed. The learned counsel further submitted that although according to the prosecution about 2000 present had gathered over there at the time of incident but no independent witness was produced by the prosecution in support of its case. The learned counsel also made detailed submissions in respect of the injured P. W. presence of the complainant at the time of occurrence and recovery of currency notes. He placed reliance on a number of judgments reported as 1997 PCr. LJ 1900; 1998 PCr. LJ 438; 2001 SCMR 1083 and 2001 SCMR 129. Learned counsel for the appellant also contended that the medical evidence furnished by P.W.5 reveals six injuries on the dead body of Haji Jan Muhammad deceased whereas ocular evidence, no reference is found anywhere in respect of the sixth injury caused to the deceased and therefore, presence of the eye‑witnesses having been contradicted by the medical evidence becomes highly doubtful. Regarding the currency notes allegedly recovered from the appellant/accused he submitted that no proper identification of the currency notes was made nor any serial number of the same was mentioned in the F.I.R. and thus nexus between the recovery and the appellant/accused has not been established by reliable evidence.

7. Keeping in view the significance and far‑reaching effect of the legal question raised by the learned counsel about jurisdiction of this Court as involved in the instant case, we deemed. it proper to call the learned Advocate‑General, Sindh as well as the Deputy Attorney‑General to assist the Court. Accordingly they made appearance and made detailed submissions. Learned Advocate -General candidly came out with the contention that only Hon'ble Federal Shariat Court was competent and empowered to hear and decide the appeal pertaining to Hudood laws if the sentence awarded by the trial Court was exceeding two years. He read out contents of section 24 of the Ordinance with special reference to second proviso in this connection. He also placed reliance on a case reported as 1995 PCr.LJ page 74. The learned Deputy Attorney‑General while adopting arguments of the learned Advocate- General, Sindh, fully supported the contention that the jurisdiction to hear and decide the instant appeal certainly lies to the Federal Shariat Court and not to the High Court as the charge against the appellant was framed under the Hudood Laws despite the fact that, in circumstances of the case, conviction was later on converted into one under the Pakistan Penal Code, as warranted by section 24 of the Ordinance. Learned counsel for the complainant while relying on the 1996 PCr.LJ (sic); PLD 1997 Quetta 65; PLD 1983 FSC page 11 further advanced the view put forward by learned Advocate -General, Sindh and Deputy Attorney‑General. Learned counsel for the complainant while supporting the impugned judgment submitted that there was absolutely no enmity of the complainant with the appellant/accused. He also submitted that it was a day light occurrence and the appellant/accused was caught red‑handed on the spot and recovery of Rs.69,000 along with the crime weapon was effected from him then and there. Learned counsel submitted that there was absolutely no reason for the complainant to falsely implicate a "Channa vendor" in a case of this nature and the very fact that such a huge amount was recovered from possession of such a poor person further makes his defence plea highly doubtful. Learned Assistant Advocate‑General also supported the impugned judgment and adopted the arguments of the learned Advocate‑General.

8. We have thoroughly taken into consideration the submission of the learned counsel for the parties and have thoroughly examined the evidence on record, in the light of their contentions.

9. After going through the Constitution, Hudood Laws and case‑law, relied upon by the learned counsel in respect of the legal objection raised by the learned counsel for the appellant, we overruled the same and held that, in circumstances of a case where charge is framed against an accused under any provision pertaining to Hudood Laws, with or without any other section of P.P.C., and the trial Court comes to the conclusion that charge under the Hudood Laws could not be maintained for want of evidence or other reasons, and proceeds to convict him for any other offence under the provisions of P.P.C. and acquit him from charge under Hudood Laws, the appeal against that judgment would lie to the Federal Shariat Court. This jurisdiction is conferred upon Federal. Shariat Court by the Constitution as well as the relevant enactments in Hudood Laws that still hold the field and cannot be taken away by any judgment of any Court unless the relevant provisions referred to above are duly amended. In this connection, firstly we would like to refer to Chapter 3‑A of the Constitution of Pakistan whereunder Federal Shariat Court exercises its jurisdiction. Article 203‑DD and sub‑Article 2(a) to Article 203‑F clearly defines a portion of the powers conferred upon it by the Constitution. The same are reproduced hereinunder for the sake of easy reference:‑

" Article 203‑DD

(1) The Court may call and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any: finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court any way, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence.

(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law.

Article 203‑F

(1) Any party to any proceedings before the Court under Article 203‑D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the, Supreme Court:

Provided that an appeal on behalf of the Federal or of a Province may be preferred within six months of such decision.

(2) The provisions of clauses (2) and (3) of Article 203‑D and clauses (4) and (8) of Article 203‑E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court.

(2‑A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court:

(a) If the Federal Shariat Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death of imprisonment for life or imprisonment for a term exceeding fourteen years; or, revision has enhanced a sentence as aforesaid; or

(b) If the Federal Shariat Court has imposed any punishment or any person for contempt of the Court. "

A bare perusal of the above provisions leaves no doubt to reveal that the Federal Shariat Court is empowered to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by such Court and may also direct that the execution of any sentence be suspended and, if the accused is in confinement, that he shall be released on bail or on his own bond pending the examination of the record. It is also noticeable that as provided by sub‑clause 2(a) to Article 203‑F the appeal shall lie to the Supreme Court from any judgment, final order or sentence of the Federal Shariat Court or on appeal reversed an order of acquittal of an accused person and sentenced him to death or imprisonment for life or imprisonment for a term exceeding fourteen years; or on revision has enhanced his sentence as aforesaid. It is noticeable that this legal position has by now well settled and supported by so many judgments passed by Full Bench of this Court as well as of the Shariat Appellate Bench, Hon'ble Supreme Court. The recent judgment passed by a Double Bench of Hon'ble Supreme Court, i.e. (reported as Atta Ullah v. Abdul Razzaq (PLD 2002 SC 534), referred to above and relied upon by the learned counsel, is distinguishable in facts and circumstances from this case. It also appears that proper assistance in the matter was not provided to the Hon'ble Court. Moreover the above case pertained only to grant of leave to appeal which, in circumstances of the case, was rightly refused by the Hon'ble Supreme Court due to the different stands of the petitioner taken at the Courts below. In this connection it may also be appreciated that the view taken by learned counsel for the appellant cannot be agreed to reason also that if in any case an accused is acquitted from the charge framed under Hudood Laws and is convicted, instead, under Pakistan Penal Code aria appeal against conviction is allowed to be made to lie before the High Court, a serious anomaly will follow in case the appeal against his/her acquittal from under Hudood Laws is filed before the Federal Shariat Court, as that will certainly lie before it without any doubt. This will further aggravate the situation, increase the agony and unnecessarily prolong litigation of the public at large. In such circumstances, provision, of two different forums of appeals will add nothing but confusion, chaos and misery for the poor citizens of Pakistan.

10. On merits also, we took into consideration all the points raised by the learned counsel for the appellant but unfortunately the contentions raised by the learned counsel are found devoid of force. First of all we would like to refer to section 8 to section 526, Cr.P.C. Although, as submitted by the learned counsel, application for transfer of the case to the High Court was made, yet the available record does not contain any stay order of the proceedings or transfer of the case as prayed for. Comments of the trial Court in respect of the progress of the case were however, called from time to time. It is to be appreciated that the aforesaid section only requires the trial Court to decide the case but withhold pronouncement of the judgment. There is no bar on the trial Court to finalize hearing of the case. Learned counsel for the appellant was asked that in case the Court proceed to announce the judgment in such circumstances, what would be legal status of the judgment but the learned counsel was not in a position to throw light on the same or even to cite any case‑law to support his contentions. Regarding the second point it is worth-mentioning that acquittal under section 13 of the Arms Act does not entitle the appellant to earn acquittal in a case of murder as the set of witnesses may be different in both the cases and recovery of incriminating weapon would be only one of the factor in the murder case. In the instant case the pistol was recovered from the appellant on the spot and it was duly secured vide recovery memo. by the Investigating Officer. The empties were also recovered from the spot and secured vide memo. Both the pistol and empties were sent to the Forensic Science Laboratory where they were duly matched. Positive report of the said laboratory was duly tendered in evidence. The evidence produced before the trial Court in respect of the same is unbiased and inspires confidence. Regarding the non‑production of the independent eye‑witnesses who gathered on the spot, we do not agree with the learned counsel that it has adverse bearing on the case of prosecution. They were attracted naturally to the spot after the occurrence. P.Ws.2 and 4 are the only eye‑witnesses who are natural witnesses of the whole occurrence. They have no motive for false implication of the appellant whatsoever. One of them was servant of Haji Jan Muhammad, deceased and the other one was his partner. Their presence on the spot is undisputed. One of them also got injured during the occurrence. , Their statements inspire confidence. They arrested the appellant/accused on the spot immediately at the time of occurrence, as he could not succeed in running away from the place. To his bad luck, the police was available around nearby and was immediately attracted to the spot on hearing of firing shots. They saw the deceased lying there in a pool of blood. Regarding the sixth injury found on the dead body we may mention that there is no contradiction between the ocular evidence and the post‑mortem report. The eye‑witnesses stated whatever was observed by them, without any addition. In those circumstances, it was not possible for them to see the minutest details as according to evidence, the P.Ws. took shelter as was but natural for them and thus were unable to see the whole occurrence from beginning till the end. It is worth-mentioning that it shows their truthful account of what they saw and they never tried to make improvement to bring their statements in line with the said report. It appears that after receiving fire bullet injuries, the deceased fell down and sustained sharp‑edged injury caused on his body by the edge of any show case or piece of glass, while falling down. As far as the other contradictions pointed out by the learned counsel are concerned, they are not at all material and do not have any adverse bearing on the case of prosecution in any manner. As far as the substantial aspects are concerned, statements of P.Ws. are fully consistent in material particulars and inspire confidence. They have no motive for false implication or substitution of real accused.

11. The upshot of the above discussion is that the prosecution has successfully established the case against the appellant accused and brought home his guilt beyond any reasonable doubt. The ocular evidence furnished by the eye‑witnesses, arrest of the appellant on the spot, recovery of Rs.69,000 as well as pistol from his possession and empty from the spot, positive report of the Forensic Science Laboratory on the same, and the post‑mortem leave no doubt of involvement of the appellant/accused in commission of murder of Haji Jan Muhammad by him in jewellery shop in Zaib‑un‑Nisa street.

12. Consequently for the reasons stated above, we maintain conviction and sentences of the appellant as awarded to him by the learned trial Court vide the impugned judgment and dismiss his appeal.

13. The Murder Reference No.1‑K of 2000 is answered in affirmative.

H.B.T./105/FSC Appeal dismissed.