THE STATE through Advocate General, Balochistan Versus AKBAR KHAN

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑ These petitions for leave to appeal have been filed against the judgment, dated 29th April, 2002, passed by High Court of Balochistan, Quetta, whereby two Criminal Appeals filed by State and complainant have been partially allowed.

2. Precisely stating the facts of the case are that on 15th November, 1999, at about 4‑40 p.m. respondents (complainant) caused injuries to deceased Lal Shah by pelting stones at him. It is stated that incident was witnessed by P.Ws. Khair Muhammad Shah and Wazir Shah. It is stated that complainant Syed Kamal Shah who was on his way to house from Barkhan, was informed about the incident by the aforesaid witnesses. On reaching home he found his brother Lal Shah already succumbed to injuries. It is stated that the complainant then made written report to levies Thana Barkhan whereupon a case under section 302/34, P.P.C. was registered. The motive for the occurrence was stated to be dispute, arose over piece of land. It is stated that Naib‑Tehsildar Muhammad Asadullah took investigation in hand, he prepared site plan and secured stones from the place of occurrence. After usual investigation respondents were sent up to face trial before Sessions Judge. Loralai. After hearing both the sides and having gone through the evidence available on record, learned Sessions Judge, Loralai came to the conclusion that the prosecution case was doubtful and as such vide judgment, dated 5th May, 2000, after giving the benefit of doubt, acquitted all the respondents.

3. Petitioners feeling dissatisfied from the judgment of the trial Court, filed two petitions before High Court of Balochistan, which were partially allowed by means of impugned judgment. Concluding para. therefrom is reproduced hereinbelow:‑‑

"Having regard to the abovementioned factors, evidence and circumstances of the case the acquittal order passed by the learned trial Court in respect of the private respondents is set aside and they are convicted under section 316/34, P.P.C. and are sentenced to pay Diyat amounting of Rs.2,70,493.53 (Reference S.R.O. 813(1)/99, dated 1st July, 1999 to the legal heirs of deceased Lal Shah. The private respondents may, however, to pay Diyat in terms of provisions of section 331, P.P.C. It may also be pointed out that under section 331, P.P.C., the convict is entitled to be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court. Private respondents are directed to pay Diyat in three (3) yearly instalments starting from today. They should furnish security equivalent to the amount of Diyat within one week to the satisfaction of trial Court. In the event of failure to be dealt with in accordance with the relevant provisions of law. The Diyat amount as and when received shall be disbursed among the heirs of the deceased according to their respective shares in inheritance. "

4. Haji Akhtar Zaman, learned Additional Advocate‑General inter alia contended that respondents were charged under section 302/34, P.P.C. by the trial Court but ultimately vide judgment, dated 5th May, 2000 they are acquitted of the charge. The complainant side preferred acquittal appeal under section 417(2A) of Cr.P.C. before the High Court which has been allowed vide judgment, dated 29th April, 2002, whereby respondents have been found jointly liable to pay Diyat in the sum of Rs.270,493.53, whereas according to him they were liable to pay individually this much amount of Diyat to the heirs of the deceased Lal Shah because offence has been committed by all of them in furtherance of their common intention. To elaborate his contention, he referred to definition of Diyat under section 299 (e), Cr.P.C. according to which "Diyat means the compensation specified in section 323 payable to the heirs of the victim". Whereas according to subsection (1) of section 323 value of Diyat which will be paid by the convict to the heirs of the victim should not be less than the value of thirty thousand six hundred and thirty‑six hundred and thirty grams of silver According to him as per this provision of law each convict is liable to pay at least thirty thousand six hundred and thirty‑six hundred and thirty grams of silver, individually and not jointly. He stated that the respondents have conceded to the judgment of the High Court, meaning thereby that they have accepted that offence was committed by them in furtherance of their common intention, therefore, they are bound to pay Diyat individually equal to thirty thousand six hundred and thirty‑six hundred and thirty grams of silver.

5. Mr. Salahuddin Mangle, learned Advocate Supreme Court appearing for petitioner in Criminal Petition No.P.21‑Q of 2002 also supported the contentions of learned Additional Advocate‑General. He further stated that under section 316, P.P.C., the respondents were also liable for imprisonment to the extent of 14 years as Ta'zir, but the learned High Court omitted to attend to this aspect of the case. He was also of the opinion that even if it is presumed that the trial or appellate Courts had discretion to award sentence of imprisonment to the extent of 14 years as Ta'zir, but still such discretion has to be exercised judiciously. He stated that a perusal of impugned judgment does not indicate that for what reasons or grounds learned Division Bench of the High Court did not award imprisonment to the respondents.

6. After hearing the learned counsel for the parties, following questions emerge for consideration:‑‑

(i) What is the concept of Khoon Baha as per Injunction of Islam in criminal dispensation of justice?

(ii) Whether Diyat as defined under section 299 (e) read with section 323, P.P.C. will be recoverable from the accused persons jointly, if their number is more than one for the commission of murder of one person or individually being Khoon Baha, equal to value of sliver notified from time to time by the Government?

(iii) Whether in an offence falling within the mischief of section 316, P.P.C., Court is bound to award substantive sentence of imprisonment as Ta'zir or otherwise.?

(iv) What would be the criteria for awarding sentence of imprisonment as Ta'zir under section 316, P.P.C.?

Thus, leave to appeal is granted.

7 It is stated that all the respondents are out of custody, therefore, bailable warrants be issued against them.

Order accordingly. Office is directed to issue bailable warrants of arrest against respondents in the sum of Rs.50,000 each with P.R. Bond in the like amount, to the satisfaction of the Officer Incharge of this Court, at Quetta.

M.B.A./S‑208/S Leave granted.