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Petitioner: ZAHID IMRAN and others VS Respondent: STATE
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Tasaddaq Hussain Jillani Title: ZAHID IMRAN and others vs STATE Case No.: Crl. Appeals Nos, 396 to 400 of 2003 Date of Judgment:2005-12-01 Reported As: PLJ 2006 SC 701 Result: Sentence enhanced
JUDGMENT
JUDGMENT Javed Iqbal, J.--Criminal Appeal Nos, 396 to 399 of 2003 (filed by convicts hereinafter referred to as appellants) and Criminal Appeal No, 400 of 2003 (filed by the widow of the deceased, hereinafter referred to as complainant party), by leave of the Court, are directed against the Judgment of the Lahore High Court, Lahore dated 4.3.2003, whereby conviction and sentences of death awarded to Sharafat Ali and Shahzad appellants and imprisonment for life to the other appellants namely, Zahid Imran, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Sajid Masih under Sections 302/149 PPC and under Section 7-A of the Anti. Terrorism Act, 1997 (hereinafter referred to as the Act 1997") were set-aside and instead all of them were convicted under Section 316 PPC and sentenced to pay Diyat amounting to Rs, 2,70,493,53/- jointly and severally. They were also sentenced to 14 years R.I. as Tazir. In Criminal Appeal. No, 400 of 2003, the complainant party has challenged the order of setting-aside of conviction under Sections 302/149 PPC and 7-A of the Act, 1997 and modification of/reduction in sentences of the appellants passed by the High Court. 2. All these appeals are proposed to be disposed of by this Single Judgment as they have arisen out of the common judgment and involved identical question of law and facts. 3. The leave to appeal was granted by this Court by means of order dated 12.11.2003 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "The above cited petitions for leave to appeal are directed against the common judgment dated 4.3.2003 whereby the learned Division Bench of the Lahore High Court setting aside the conviction and sentences of the appellants-convicts on the charges under Sections 302/149 Pakistan Penal Code read with Section 7-A of the Act 1997, converted the same under Section 316 Pakistan Penal Code, and thus, convicted and sentenced them to pay `Diyat' amounting to Rs, 2,70,493,53 jointly
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and severally. Besides, each of them was also sentenced to undergo RI for 14 years as `Tazir whereas the benefit of Section 382-B Criminal Procedure Code was declined. 2. Vide judgment of the trial Court dated 11.6.2002 both Shehzad alias Shera alias Tooti and Sharafat Ali were convicted and sentenced to death for the murder of Professor Abdul Latif on the charge under Section 7,A of the Act 1997 read with Section 302/149 Pakistan Penal Code with fine Rs, 2 lacs. Their co-accused namely, Sajid Masih, Muhammad Afzal, Shahid Ali, Muhammad Anwar and Zahid Imran were awarded life imprisonment each with fine of Rs, 1 lac each on the said charges. Under Section 148 Pakistan Penal Code, each of the co-accused was sentenced to undergo RI for three years plus fine of Rs, 10,000/- or in default thereof, to further suffer R.I. for six months. 3. Resume of the prosecution case as disclosed by Ishtiaq Ahmed complainant PW-11 is that on 19.4.2000 he alongwith his colleague Muhammad Siddique while deployed to supervise BA's Examination had come across Professor Abdul Latif and Khalid Hassan PW, when deceased had apprised them that during the morning paper, Shehzad while taking his BA's examination was found using unfair means, for which the deceased had admonished him, and while leaving the examination center, the accused named above had threatened Professor Abdul Latif of dire consequences and that of his murder. Subsequently, it is alleged that appellant and his six co- accused armed with irons grips and clubs had launched the attack causing multiple injuries on various parts of the body of the deceased culminating in his instantaneous death. It is stated that PWs had apprehended Zahid Imran, Muhammad Afzal and Shahid Ali at the spot, while remaining accused managed to escape from the scene of crime. 4. We have heard the learned counsel for the appellant as well as the complainant at length. Perusal of the judgment impugned reveals that learned Judges of the High Court came to the conclusion that involvement of the appellants in the commission of crime stood established by ocular account furnished by the independent witnesses, motive, medical evidence and the recovery of weapons of offence viz. iron grips and clubs and while converting the sentences of the appellants, the learned Judges took into consideration the medical evidence, whereby, deceased had sustained as many as nine injuries consisting of contusion, abrasions and swelling and the cause of death was described as neurogenic shock due to multiple injuries; the lungs of the deceased were found to be congested and he had breathed his last on account of external violence caused by he accused during the attack. It was further observed that no lethal weapon was used in the commission of crime and the sole intention of the accused appeared to have given beating to deceased Professor who had allegedly exchanged hot words with Shehzad alias Shera alias Tooti, and thus the learned Judges came to the conclusion that conviction of the appellants under Sections 302/149 Pakistan Penal Code and under Section 7-A of the Act 1997 was totally unjustifiable as the appellants had no intention to kill the deceased. 5. In addition to the aforesaid petitions, widow of the deceased Professor has also filed a separate petition seeking enhancement of sentences of the appellants. 6. Considering the case from all angles and for the safe administration of criminal justice in this case, we are of the view that the entire case requires reconsideration to ascertain as to whether judgment of the High Court is sustainable in the eye of law and whether the case falls within the ambit of Section 7-A of the Act 1997 and also to consider the quantum of sentence awarded in this case, therefore, we grant leave to appeal to the appellants as well as to the widow of the deceased Professor. Leave to appeal granted in all these petitions in the terms indicated ibid." 4. The case of the prosecution as revealed from the statement of Ishtiaq Ahmed PW.11 complainant recorded in the Court is as under: "Professor Abdul Lateef deceased was my chachazad. The, deceased was Professor at Municipal Govt. Degree College, Faisalabad. He was posted as Deputy Superintendent, Examination for
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conducting examination of B.A. at Government College Center Gojra. On 19.4.2000 I alongwith Muhammad Siddique S/0 Umar Din PW at about 5.45 p.m. met Prof: Abdul Lateef come outside the Gate of Government College, Gojra. Prof. Abdul Lateef was accompanied by Khalid Hussain PW at that time. At that time Prof: Abdul Lateef told us that in the morning paper, Shahzad alias Toti alias Shera accused was found by him while copying in the Examination Hall and he further told that he forbade Shahzad accused who went away while threatening of dire consequences and his murder. He further told us that Shahzad accused said that his father was the President of Gojra Bar Association and he will deal with him. During this time A Suzuki Car No, 209/FDP came there, 4 boys came out of that Car aforesaid.-- The four boys are present in Court today, came there, in Suzuki Car; they de-boarded from said Suzuki car. They started conversation, with pointing towards Abdul Lateef deceased. Later on, their names were disclosed as Shehzad Akhtar alias Shera alias Toti, Muhammad Anwar, Sharafat Ali, Sajjad Masih, who was driving said car, (today all present in Court). On seeing this, we started walking towards Lan Adda Gojra, when we reached post Office Chowk, it was about 6:10 p.m. Prof. Abdul Lateef was a few paces ahead from us. At that time, suddenly the same Suzuki car mentioned above emerged there. Shehzad and Sharafat accused were armed with iron fist (ahni mukka), Sajid, Anwar accused were armed with dandas. Meanwhile, a motorcycle Honda 125 No, 5730 on which 3 boys were riding. They also stopped their motorcycle near the accused already present. Shehzad accused also joined the other accused. The accused who came there on motorcycle are also today present in Court. At that time, Shahzad alias Toti raised lalkara that "Deputy Supdt. should be taught lesson not to give me permission for cheating in the examination." On thus, Shahzad accused first gave iron fist blow to Prof. Abdul Lateef, which hit him on the head. Sharafat also gave iron fist blow to Prof. Abdul Lateef, which hit him on the front side of the neck. Shehzad again gave iron fist blow to said Prof, which hit him on his chest, on left side. Thereafter, Anwar, Sajid, Zahid Imran, Shahid Ali, Muhammad Afzal, started beating Prof. Abdul Lateef, with sticks and dandas and Prof. Abdul Lateef fell down. All the seven accused then gave him kicks and fist dandas blows, who was already lying, which hit the deceased on various parts of body. I, Siddique, and Khalid Hussain PWs intervened, and caught hold of Zahid Imran, Muhammad Afzal, Shahid Ali at the spot. I caught Muhammad Afzal accused. Khalid PW caught hold Zahid Imran accused, and Muhammad Siddique apprehended Shahid Ali accused. Many people gathered at the spot at that time. All these 3 accused, who were apprehended, threw their dandas somewhere there. Sharafat, Anwar, Sajid, and Shahzad succeeded to run away in the car and the motorcycle. Prof. Abdul Lateef succumbed to the injuries at the spot. The motive for the occurrence was that Prof. Abdul Lateef, who was on official duty, had not allowed to the accused for cheating in the examination hall, to Shahzad accused, and thereafter all the accused committed the intentional murder of Prof. Abdul Lateef, to struck terror. The police arrived at the spot. I narrated whole the occurrence to the police, which was reduced into writing vide complaint Ex. P.F. I also signed the same, as token of its correctness. We also handed over three accused mentioned above to the police. 5. In this case, the prosecution has examined 15 witnesses while the appellants in all examined 11 witnesses in their defence. The material witnesses of the prosecution are, Ishtiaq Ahmed PW.11 and Khalid Hussain PW.12, the eye-witnesses; Dr. Muhammad Ashgar, Senior Medical Officer PW.1 who conducted the post-mortem examination on the dead body of the deceased, Rai Nasar Ahmed Professor Government College Faislabad, Superintendent (Examinations-B.A.) PW.2, Mansoor Hussain Superintendent Government Science College, B.A. Examinations Faisalabad, PW.3 and Muhammad Akram Shah S.I. who investigated the case. The other witnesses are mostly formal or recovery memos witnesses vide which the Investigation Officer had recovered the various articles belonging to the deceased and also the weapons of offence, the Motorcar, the Motorcycle at the
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instance/disclosure of the appellants. 6. Ishtiaq Ahmed PW.11 has given the ocular account in his statement recorded in the Court which is quite in-line with the report lodged by him. Khalid Hussain PW. 12, the other eye-witness has supported the complainant in all material points and corroborated his version. 7. Dr. Muhammad Asghar PW. 1 has conducted the post-mortem examination on the dead body on 11.4.2000 at 11:30 p.m. and found the following injuries on the person of the deceased, observing as under:-- "1. A redish blue contuse 8 cm x 3 cm on front and upper part of left side of chest, below clavicle. 2. A redish blue contuse 6 cm x 4 cm on front of neck, just near Manubrium Sterni. 3 A redish blue contuse 16 cm x 15 cm on back and upper part of both sides of chest including upper part of thoracic spino. 4. A redish blue contuse 5 cm x 3 cm on back of left scapula of left chest. 5. Multiple redish contusions in on area of 9 cm x 6 cm on back and lower part of left side of chest.. 6. An abrasion .5 cm x .3 cm on outer part of palmer side of left hand base of thumb. 7. An abrasion .5 cm x .2 cm on left cheek. 8. A redish blue contusion 4 cm x 2 cm on inner and lower part of left fore-arm. 9. A swelling 5 cm x 4 cm on left parietal region left side of head." and described the cause of death neurogenic shock due to multiple injuries with blunt weapon. The probable duration of injury and death was immediate while between death and post-mortem was about 5 to 6 hours. Rai Nasar Ahmed PW.2 Superintendent (Examination B.A) who also corroborated the version of the prosecution with regard to the exchange of some hot words between the deceased and appellants Shahzad in the examination hall, as on search of the appellants Shehzad by the deceased with regard to the copying material possessed by him, and which was also recovered from him, the appellant felt ill for that action of the deceased, left the question paper, answer sheet, payment having the copying material written on it and went out of the examination hall while grumbling. 8. Learned counsel for the appellants have argued that the two witnesses who are closely related to the deceased, are chance witnesses as they did not belong to the said vicinity and also having no job of their own to visit the area or to be present on the spot; that all the recoveries so effected at the disclosure of the appellants have been planted and have not been proved by examining independent witnesses for the recoveries so effected and though the appellants have been nominated in the FIR by names, yet they were not known to the eye-witnesses previously and this effort on the part of the prosecution by mentioning the names of the appellants in the FIR is a planned one made by the Investigating Officer at the behest of Akhtar Ali Police Inspector, Previous SHO of the said Police Station who was the father-in-law of the deceased and who was inimically disposed of towards the father of the Shehzad appellants as some complaints have been made by the latter against the former i,e, the Police Inspector and thus challenging the evidence of the prosecution as not trust-worthy and not reliable to be believed qua the offences of capital punishment. 9. On the other hand learned counsel for the complainant party, while challenging the judgment of the High Court whereby the convictions under Section 7-A of the Act 1997 and 302 PPC were set- aside/converted to an offence under Section 316 PPC respectively and reduced the sentence from death to Diyat and 14 years imprisonment, has submitted that the prosecution has been able to prove guilt of the appellants and the trial Court has rightly convicted and sentenced them. He was supported by the state counsel. 10.We have gone through the entire record of the case, i,e, Judgment of the High Court, and the trial Court, evidence of the prosecution and that of the defence and examined the record in the light of the submissions made by the learned counsel for the parties.
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11. The ocular version which was given by the two eye-witnesses is consistent and straight-forward, may be with some minor contradictions, which may be due to lapse of time. The reasons of their visit at the place, where the deceased was deputed in the examination hall has been explained by the two witnesses and the narration of the circumstances particularly the apprehending of the three appellants on the spot by them fully lends support to their version indicating their presence on the spot. Their version finds corroboration from the Medical evidence and also from the other circumstantial evidence i,e, the recoveries of the iron grips/iron club and Dandas at the instance of the appellants. The reasons of nominating the appellants in the FIR have also been fully explained as to how they came to know about the names of the appellants and more so their identification by PW's at the time of examination in the Court. They have pointed out the appellants present in the Court to be the one who were responsible for the assault on the deceased. Regarding the recoveries of various weapons affected, a credible evidence has been led by the prosecution and there exists no reasons to disbelieve such evidence. Efforts were made to dislodge the prosecution evidence by producing the evidence in defence with different pleas showing some between the Police Officials and father of the appellants Shehzad and also the absence of some of the appellants on the spot but the said evidence is not of a such standard sufficient to create dent in the evidence of the prosecution. 12.The evidence qua the guilt of the appellants have also been believed by the two Courts below i,e, the trial Court and First Appellate Court i,e, High Court, we also agree with both the Courts on the point of 'holding the appellant's guilty. However, the two Courts differ with regard to the sentences and the sections applicable in the case. As the trial Court found them guilty under Sections 302-b PPC and 7-A Act, 1997 and sentenced the appellants as mentioned in Para No, 1 above while the High Court held them guilty under Section 316 PPC and sentenced them accordingly. 13.Since both the parties i,e, the complainant party and the appellants have challenged the judgment of the High Court, the former has impugned the setting-aside of convictions and sentences under Sections 302/149 PPC and 7-A of the Act, 1997, while the later impugned their convictions and sentences under Section 316 PPC, this aspect (alterations in the sections of law and sentences after holding them guilty), require consideration. 14. Let we make it clear at the out set and as mentioned above that we agree with the conclusion of learned trial and First Appellate Courts that the prosecution has proved the guilty to the hilt by producing cogent and concrete evidence but we have serious reservations qua the application of Section 316 PPC, factum of sentence and applicability of Sections 6 and 7 of the Act 1997. As pointed earlier the prosecution has established its case beyond shadow of doubt. In this regard the statements of Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12) can be referred. They were eye witnesses and it transpired from an in depth scrutiny of their statements that they have fully supported the prosecution case. They remained firm during the test of cross-examination and in spite of various searching questions, lengthy and an exhaustive cross-examination, nothing beneficial rendering any help to the case of appellants could be elicited. They had no rancor, enmity or ill-will against the appellants and hence the question of their false involvement does not arise specially when three accused were apprehended at the spot. Their version also finds support from the medical evidence, motive, factum of recovery and abscontion. Being worthy of credence and confidence inspiring, their evidence has rightly been appreciated and believed by the learned trial Court determination whereof has been upheld by the appellate Court under different sections of Penal Code. Ishtiaq Ahmad (P.W.11) and Khalid Hussain (P.W.12), by no stretch of imagination, can be declared as chance witnesses, as pressed time and again by Mr. Muhammad Latif Khan Khosa, learned Sr. ASC on behalf of appellants, because they have rendered a plausible justification for their presence at the place of occurrence. In this regard we are fortified by the dictum as laid down in the following authorities:--
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(i) Muhammad Ilyas v. State (2002 SCMR 350); (ii) Amanullah v. State (2002 SCMR 1557); (iii) Allah Ditta v. Ghulam Shabbir (1994 SCMR 1253); (iv) Shahzada v. Hamidullah (1968 P.Cr.L.J. 176); (v) Fakku Mia v. State (1969 P.Cr.L.J. 1193); (vi) Muhammad Rafique v. State (2004 SCMR 755); (vii) Sikandar v. State (PLD 1963 SC 17); (viii) Mst. Dur Naz v. Yousuf (2005 SCMR 1906); (ix) Muhammad Zaman v. Muhammad Afzaal (2005 SCMR 1679); (x) Muhammad Ahmad v. State (1997 SCMR 89); (xi) Safeer Hussain v. Muhammad Jehangir (1996 SCMR 951); (xii) Liaquat Hussain v. Falak Sher (2003 SCMR 611). 15. Now we intend to proceed with the question which requires determination as to whether conviction could have been awarded under Section 302(b) PPC and Section 7-A of the Act 1997 or the offence falls within the ambit of Section 316 PPC (Qatl Shibh-i-Amad) as concluded by the learned High Court. After having gone through the entire evidence including medical evidence, number of injuries, nature of injuries, seat of injuries and the crime weapons (iron fist and clubs) we are of the considered view that the provisions as contained in Section 316 PPC cannot be made applicable in this case, which are reproduced herein below for ready reference:-- "S. 316. Punishment for Qatl Shibh-i-Amd. Whoever commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to twenty five years as Tazir." 16. The language as employed in Section 316 PPC is free from any ambiguity and provides that in case of Qatl Shibh-i-Amd, the offender shall be liable to Diyat and may also be punished for imprisonment which may extend to twenty five years as Tazir, but here at this juncture the question which requires serious consideration would be as to whether Qatl-i-amd was committed or Qatl Shibh-i-Amd, which is defined as follows:-- "S. 315. Qatl Shibh-i-amd.--Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd. Illustration A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of qatl shibh-i-amd. 17. The import and significance of an illustration appended to a section has been ignored by the learned Division Bench of High Court. "An illustration to a statutory provision merely illustrates a principle and ex hypothesi it cannot be exhaustive. It is illustrative of the true scope and ambit of a. section. It must be read subject to the relevant provision in the section itself. Illustrations merely illustrate a principle and what the Court should try and do is to deduce the principle which underlies the illustrations. An illustration is a simple statement of facts to which the section itself has got to be applied. It only exemplifies the law as enacted in a statute. It is not to be readily assumed that an illustration to a section is repugnant to it and rejected. Illustrations are only aids to understanding the real scope of an enactment. If the text is clear, and the illustration beyond it, the illustration cannot extend or limit the scope of the text. In all other cases, the illustration is explanatory-of the section. It may be rejected on the ground of its absolute repugnancy to the section itself. Being part of the statute, and not standing on the same footing as marginal notes, they go a great way to explain the intention of the Legislature. Beasley, J., in Ramalinga Mudaliar v. Muthuswa mi Ayyar, after referring to Ariffin's case and Balla Mall's case expressed: I do not take either judgment to mean that under every Constance an illustration must be taken as part of the
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statute. All that in my view is meant is that a Court should not lightly disregard the illustrations merely because they do not seem to be in accord with generally accepted ideas as to the law in other places." Their Lordships of the Privy council again in Sopher v. Administrator General, Bengal, ruled that the "Section must, of course, be read and construed in connection with the illustrations to be found in the Act. (AIR 1944 PC 67, 69, see also Anirudha v. Administrator-General of Bengal, AIR 1949 PC 244, 250.) Ashrafalli v. Mohammedalli, AIR 1947 Bom: 122. 130, per Chagla, C.J., (Interpretation of Statutes by N.S. Bindra, revised by Dr. Tahir Mahmood, 7th Edition 1984). "Illustrations appended to an Act of the Legislature are part of the enactment. They can, therefore, be legitimately used and are of value in construction of the sections. (1980 CLC 433) Reference to illustrations attached to any section would help in understanding true import/meanings of words used in such section as also scope thereof. (1996 CLC 1932). They may provide guidelines for interpretation of such provisions but cannot be accepted as the law itself. (1966 CLC 1331). An illustration appended to a section, should be deemed part of it, unless it is in conflict with the section itself. (PLD 1959 Lah. 429). However, it cannot curtail or expand the ambit of the section. (PLD 1957 S.C. (Ind) 18). Nor it can modify the language of the enactment.. (PLD 1959 Dacca 131)" (Emphasis provided) (Canon of Construction & Interpretation of Statutes by M. Mahmood). "Illustrations appended to an Act are part of the…
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