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Petitioner: ZAHID ALI VS Respondent: Sheikh ABDUL HAMEED and another
Court Name: Balochistan High Court Judge(s): Amir-ul-Mulk Mengal, Mir Muhammad Nawaz Marri Title: ZAHID ALI vs Sheikh ABDUL HAMEED and another Case No.: Criminal Appeal No.34 of 1995 Date of Judgment:1995-10-04 Reported As: 1996 P Cr. L J 586 Result: Bail allowed
JUDGMENT
JUDGMENT ' AMIR-UL-MULK MENGAL, J.--- This appeal is directed against the acquittal of Sheikh Abdul Hamid who was tried for an offence under section 302, P.P.C. By Sessions Judge, Quetta and was acquitted of the charge vide judgment, dated 14-2-1995. ' If put succinctly, the prosecution case is that on 1-2-1989 while Arshad Ali son of Kutab Khan took out his motor-cycle from his house to go to the City, the accused/respondent tired upon him with a shot-gun which hit him as a result whereof he was injured and removed to hospital. On examination following injuries were found on his person:-- (i) Three gun shots entrance wounds circular with burned margins right lumber region at the level of mid axillary line. All three wounds are equal in size; (ii) Town gunshot entrance wound right side of chest 2" below and 1-1/2 medial to right nipple; (iii) One gunshot entrance wound right side of V.C. Near scapular region (5th V Level). ' The injured was admitted in Male Surgical Unit. S.H.O. Sariab Muhammad Akram, S.I. Was informed who came to Civil Hospital, Quetta after making entry in the Roznamcha (Exh.D/5-A). When he reached Civil Hospital, he found Arshad Ali injured and he prepared statement of injuries (Exh.P/7- C). He then left for place of occurrence. In the meanwhile a report was lodged by Sultana that her son has been injured by Sheikh Abdul Hameed. Muhammad Akram went to the house and arrested Sheikh Abdul Hameed, who came out of house along with a shot-gun. He also secured an empty- cock/pad from the place of occurrence. He took the accused to Sariab Police Station. Since the place of occurrence was outside of his territorial jurisdiction, therefore, he informed Tehsildar, Quetta about the incident and the fact, that the offence has been committed within his territorial jurisdiction. On receipt of telephonic information Akbar Ali Mirza, Tehsildar, Quetta directed Sardar
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Amir Jan, Naib-Tehsildar regarding arrest of the accused and investigation of the case. Accordingly Naib-Tehsildar went to the police station and took the hand of accused from P.W. Muhammad Akram who also handed over him one shot-gun single barrel, 10 live cartridges, one license and cock/pad which were taken into possession by P.W. Sardar Amir Jan vide recovery memo. Exh. P 7/B . ' Naib-Tehsildar then proceeded to Civil Hospital where he found Arshad Ali admitted in the Casualty Ward. According to him the injured was conscious and in his senses and he recorded statement of injured which was produced as Exh.P.11/A. In the statement so recorded the injured stated that he was 21 years old. He and accused were neighbours. Sometimes back father of injured was murdered by somebody and the injured remained in jail during investigation. He engaged Sheikh Abdul Hameed his. Counsel. The fee was fixed as Rs.30,000 which was paid to Sheikh Abdul Hameed. But despite that, he made demand of an additional amount of Rs.30,000. The injured further stated that Sheikh Abdul Hameed, Advocate has always been asking him to marry his sister but he refused to do so. Sheikh Abdul Hameed was aggrieved of this refusal and he always used to ask injured either to make payment of Rs.30,000 or to marry his sister, failing which he would be killed. ' On the day of incident the injured was going towards city on his motorcycle when accused came out from his house. He was armed with a shot-gun .12 bore and shouted at the injured to stop. Simultaneously, he opened fire. The injured received injuries and fell down. The accused made another attempt to reload his single-barrel shot-gun, but his attempt, was thwarted by younger brother of injured namely, Zahid Ali. According to him one of his neighbors Saifullah brought him to Civil Hospital in a Suzuki. ' Initially case was registered under section 307, P.P.C. And investigation started. The Naib-Tehsildar as Investigation Officer visited place of occurrence, prepared Exh.P.8/A the site plan with the help of Abdul Latif, Patwari. He recorded statement of P. Ws. And during investigation the accused expressed that he would be giving 164, Cr.P.C. Statement and was produced before City Magistrate and E.A.C.-I, Quetta where he did not make any concessional statement and was remanded to judicial custody. ' It may be noted that the accused succumbed to the injuries in the hospital and F.I.R. Lodged under section 307, P.P.C. Was altered into 302, P.P.C. After submission of challah the learned Sessions Judge, Quetta framed charge on 2-9-1989. The accused did not plead guilty to the charge and claimed trial. ' In order to substantiate the charge prosecution examined P.W.1 Mirza Akbar Ali, Tehsildar, P.W.2 Amjad, P.W.3 Anwar Sultana, P.W.4 Zahid Ali, P.W.5 Muhammad Rahi, P.W.6 Dr. Abdul Sattar, P.W.7 Muhammad Akram, P.W-.8 Abdul Latif, P.W.9 Faizullah, P.W.10 Akhtar Khattak and P.W.11 Sardar Amir Jan, Investigating Officer. The accused examined in defense D.W.1 Atiq-ur-Rehman, D.W.2 Arbab Lal Muhammad, D.W.3 Amin Mengal, D.W.4 Sadiq Ali, D.W.5 Bashir Ahmed, D.W.6 Sarfraz Khan, D.W.7 Muhammad Aslam, D.W.8 Raza Muhammad, D.W.9 Qadir Bakhsh, D.W.10 Pira Khan, D.W.11 Muhammad Saleem, D.W.12 Abdul Rehman and D.W.13 Humayun. The accused was also examined under section 342, Cr.P.C. ' Besides, one Haji Abdullah was examined as Court-witness. ' The prosecution case hinges on ocular testimony of 4 eye-witnesses namely, Zahid Ali, Anwar Sultana, Muhammad Rahim Baloch and Amjad, recovery of shot-gun, live cartridges and cock/pad of used cartridge as well as dying declaration. ' Before proceeding further, it would be expedient to determine the question regarding maintainability of acquittal appeal filed by the complainant, who is the real brother of deceased. According to appellant section 2(a) was added/inserted in section 417, Cr.P.C. Vide Notification,
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dated 14-11-1994. This appeal has been filed in March, 1995. Subsection 2(a) of section 417, Cr.P.C. Reads as under:-- "Subsection 2(a) of section 417. Cr.P.C.--- A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may within thirty days, file an appeal against such order." ' Thus, after amendment in section 417, Cr.P.C. The Legislature conferred a right of appeal on a person aggrieved by the order of acquittal passed by any Court other than a High Court. The argument advanced was that when the case was pending trial no such right was available to the complainant or a person aggrieved by the order of acquittal. Since the appeal is continuation of proceedings, therefore, any change even in filing an appeal is to be governed by the old procedure because the amendment has no retrospective effect. Reliance has been placed on PLD 1965 SC 68L From perusal of the said judgment it appears that the Supreme Court held that a Statute cannot be said to have retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words if a Statute deals merely with the procedure in action and does not affect the rights of the parties it will be held to apply, prima facie, to all actions, pending as well as future. It is only if it be more. Than a mere matter of procedure, i.e., if it touches a right in existence at the passing of the new Act that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of a new Act. Similarly our attention was drawn to PLD 1969 SC 599 wherein an observation was made that Statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Similarly learned counsel placed other authorities to the same effect and contended that present appeal has been filed by brother of the deceased and not by the State, therefore, the same is not maintainable because prior to the amendment only Provincial Government could file such an appeal. ' We respectfully follow the dictum of the Supreme Court. But the only question is whether the ratio decided applies to the facts of the present case. Here the right of appeal against an order of acquittal has been conferred to any aggrieved person and this amendment has been made in law vide Notification, dated 14-11-1994; whereas present appeal has been . Filed on 15-3- t 995 against the judgment passed on 14-2-1995. ' Amendment has been made in order to commensurate the law with the Sharia which gives such a right to an aggrieved party. Secondly when this amendment was brought in law the case of the accused was at the trial stage and no procedure of trial has been changed nor any right of present accused has been infringed. Even if this amendment is held to have affect prospectively, the present appeal is covered by it. None of the rights of the accused has been taken away by this amendment, but the Legislature thought it expedient to confer a right on a person aggrieved by acquittal in order to broaden the scope because sometimes due to inadvertence or red-tapes the Provincial Government did not prefer appeal against acquittal. The intention of the Legislature is very much clear that this law has to take effect as regards cases which were pending trial so as to confer a right to any aggrieved person (the brother of deceased in present case) to prefer an appeal against acquittal in order to bring this section in conformity with Islamic Injunctions. ' After conscious consideration, we are of the view that accused plea has no force for the following reasons:-- (i) The intention of the Legislature is manifest and clear that from the date of promulgation of this amendment a right of appeal has been given to a person aggrieved by any order of acquittal; (ii) this has been done in order to bring law in conformity with Islamic Injunctions; (iii) even otherwise it has been observed by the Supreme Court quoting Maxwel PLD 1965 SC 681 that where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect,
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retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p.217 of his Book the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view; (iv) no right of accused has been impaired or infringed by this amendment. A right of appeal against acquittal was already there under section 417, Cr.P.C. And it has only been extended to a person aggrieved in addition to the Provincial Government which, in our opinion, has not impaired the right of any of the parties; (v) the accused cannot challenge the right given to an aggrieved person, of appeal, against acquittal when the matter was not mature for filing of appeal when the amendment was brought. In fact, we do not find any force in the arguments because when this amendment was brought question of filing of appeal had not arisen as the matter was at the trial stage. For all such reasons we hold that the argument of the accused is devoid of any force and present appeal has rightly been filed under subsection (2-A) of section 417, Cr.P.C., which is maintainable to be decided on its own merits. ' Attending now to the merits of the case we proceed to assess and sift, the testimony of the eye- witnesses. It may be pointed out that out of 4 eyewitnesses, 2 are the brothers of deceased and one is the mother of the deceased. However, P.W.5 Muhammad Rahim is an independent witness who belongs to none of the parties. ' P.W.2 Amjad said that on the day of incident he along with his brother Arshad Ali (deceased), Zahid Ali and mother were present in their house and taking morning tea. His brother left the house for office on motor-cycle. His mother and brother Zahid Ali went to close the door. He heard a fire- arm report and thought that perhaps his brother's motor-cycle has been punctured. His mother and brother Zahid went outside the house. He also came out of the house and saw that his brother was lying in injured condition. In the meanwhile his brother Zahid Ali and accused present in the Court respondent were grappling with each other and accused was loading cartridge in the gun. His mother asked him to immediately call Saifullah who was their neighbor. He called Saifullah and his mother requested Saifullah to bring his Suzuki. Then his injured brother was removed to hospital in the Suzuki. In cross-examination, however, certain contradictions were pointed out. It is pertinent to note that in cross-examination, on a suggestion as to who was the independent witness, reaching the place of occurrence; the witness replied it was Muhammad Rahim. ' P.W.2 Mst. Anwar Sultana is the mother of deceased Arshad Ali. She stated that her son Arshad Ali was going to Rehman Hospital for duty where he was taking course of Nursing Orderly. It was at about 9-00 a.m. The accused committed murder of her son by means of a gun. According to her she took out the legs of her son out of the motor-cycle. In the meanwhile her son Zahid tried to snatch gun from the accused. The accused threw his gun towards the house of his sister. She sent her son to call Saifullah and sent message to fetch Suzuki Maskeen. She also mentioned presence of P.W. Rahim who reached the spot. They took the injured son to hospital where he died at 10-00 p.m. As to motive,. She stated that the motive of the incident was that the sister of accused wanted to marry her son, but she and her son did not agree. Secondly, the accused was a greedy person and he also wanted to marry her. The accused in presence of P.W. Akhtar Khattak and Saifullah threatened that in case of refusal of his demands he would kill her son. ' P.W.4 Zahid Ali the brother of deceased is a student. He deposed that on the day of incident, which took place on 1-2-1989 at 9-00 a.m. His brother Arshad Ali went out of the house. He was along with his mother and brother. He saw Sheikh Abdul Hameed who was sitting on the back side of the wall of his house. The height of the wall was between 3/4 feet. Sheikh Abdul Hameed fired upon Arshad Ali. By a shot-gun. Arshad Ali fell down, and accused came out in the open plot. The witness ran towards the accused as he was reloading his shotgun. In the meanwhile sister of the accused
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came out of her house. The gun was given to Mst. Bashira, the sister of the accused, by the accused who went in her house. His mother asked Amjad Ali to call for Saifullah who was their neighbor. Saifullah went to Dairy Farm of Miskin for having some conveyance. Miskin came with Suzuki and Saifullah and another person namely, Muhammad Rahim. Arshad Ali was taken to hospital in the Suzuki driven by Miskin, while they were in the hospital. Naib-Tehsildar asked them to visit his office for recording of their statements. His brother expired and according to him Sheikh Abdul Hameed killed his brother. ' The last ieye-witness was Muhammad Rahim who used to live in Killi Jeo Jadeed. He did not know the parties. His house was at a distance of about 2 furlongs from the house of the deceased. He used to go to town on bicycle. He saw deceased came out of his house. He started his motor-cycle and in the meanwhile he heard a gun shot fire. He saw deceased fell down. He also saw the accused came in Medani (open place) and was having a shot-gun in his hand. Accused attempted to make another fire but meanwhile 2 boys came out from the house, one of them caught hold of the accused and the other went to the house of Saifullah. He saw all this from the road. He also saw the injured in the lap of his mother. Saifullah shouted that his neighbor has been killed by Wakil Sahib. He along with Saifullah and another boy went to the house of Miskin in order to fetch some vehicle. When they reached back mother of deceased was shouting that his son was killed by a Punjabi Wakil who was their neighbor. The injured was taken to Causality where his X-ray was taken. The witness then left for his duty. ' Besides, the above ocular version another important piece of evidence is dying declaration of the deceased. After being fired upon and injured, he was taken to the hospital. When police informed Tehsildar Quetta that offence has been committed within his jurisdiction, Naib-Tehsildar P.W.11 Sardar Amir Jan was assigned investigation of the case who visited the hospital and found the injured in his senses. He recorded his statement in which injured stated that sometimes before his father had been killed and he was put in jail during investigation. He engaged Sheikh Abdul Hameed as his Advocate who was paid a fee of Rs.30,000. Despite that Sheikh Abdul Hameed made a demand of Rs.30,000 more, Sheikh Abdul Hameed has a sister and he always used to ask him to marry his sister, but the injured refused. Sheikh Abdul Hameed used to extend threats to make payment of Rs.30,000 and to marry his sister otherwise he would be killed. On the eventful day at 9-30 a.m. When he was coming out of his house the accused came out of his house with a shot-gun in his hand and asked him to stop. Simultaneously he fired upon him as a result of which he received injuries and fell down. He wanted to make another fire but his brother reached and grappled with him. His mother and brothers were present. His neighbour Saifullah took him in his suzuki in the hospital. ' Recovery of a shot-gun and cock/pad were made by S.H.O. And handed over to Naib-Tehsildar after when he found that the place of occurrence falls outside his territorial jurisdiction. ' Apart from above evidence there is another corroboration by P.W.6 Dr. Abdul Sattar Bloch who examined the dead body of Arshad Ali. According to his statement the probable cause of death of Arshad Ali was due to injuries on vital organ, i.e. Heart, excessive hemorrhage, shock and death. Wounds were of gun-shot. P.W.7 was Muhammad Akram Sub-Inspector According to him on 12- 1989 he was posted as S.I. Police Station Sariab Quetta. He was informed by a duty doctor that a shot-gun case of my area has been lodged. He proceeded to hospital and found Arshad Ali lying injured in the hospital. He prepared injury memo. He found that occurrence did not fall within his territorial jurisdiction. However, Mst. Anwar Sultana (mother of deceased) has lodged a report that her son has been injured by Sheikh Abdul Hameed. He went to the house of accused and called him. Accused came out along with shot-gun. He collected one empty cock/pad and brought the accused along with shot-gun to Police Station Sariab. Amir Jan Naib-Tehsildar came to police station and this witness handed over Sheikh Abdul Hameed, shot-gun 10 live cartridges and the
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cock/pad to NaibTehsildar. The shot-gun had license which was also given to Amir Jan, Investigating Officer. He had made a report in Roznamcha which he produced as Exh.P.7-A and he identified his signatures thereon. He prepared recovery memo. Exh.P.7/B and identified his signatures thereon. He also identified accused present in the Court. In cross-examination he stated that the cock/pad was found in front of the house of Abdul Hameed in Medani (open place). P.W.8 Abdul Latif prepared site plan and produced it as Exh.P.8/A. P.W.7 Faizullah is a levy Constable who accompanied Naib-Tehsildar to police station and he was witness to Exh.P.7/B, Article P.1 etc. P.W.10 Akhtar Khattak was known to Arshad Ali deceased and had family relations. He has given details of the family background of Arshad Ali deceased. According to him one day Sheikh Abdul Hameed (accused) visited his house. There was a dispute of some money transaction and Sheikh Abdul Hameed claimed an amount of Rs.30,000 as fee or in lieu thereof mother of Arshad Ali should marry him. He further stated that Sheikh Abdul Hameed said that if it was not accepted, he would kill Arshad Ali. The other day he went to inform Arshad Ali and his mother advising them to file an application in the Court of Assistant Commissioner for obtaining peace securities. However, they did not agree to his suggestion. After when he heard that Arshad Ali has been injured, he went to the hospital. He found him in his senses, who disclosed about the incident and the fact that Sheikh Abdul Hameed had injured him with a shot-gun. On the next day he sought permission from Assistant Commissioner for taking the deceased without having post-mortem and he produced permission as Exh.P.10/A. ' Sardar Amir Jan Somalani P.W.11 investigated the matter. When Sariab Police informed Tehsildar about the incident, Tehsildar assigned him the duty of investigation. He received the hand of Sheikh Abdul Hameed and also a Russian made shot-gun, single barrel along with 10 live cartridge and a license in his name of Sheikh Abdul Hameed and an empty cock/pad and prepared Fard Exh.P.7/B. He identified his signatures on the same. He prepared parcel of the shot-gun and cock etc. As well as of cartridges. He took the accused to Levies Headquarter, Quetta and started investigation. Accused admitted that he has fired upon Arshad Ali. The Investigating Officer then left for hospital. He saw Arshad Ali was admitted in Causality Ward and was in his full senses. He saw mother of the deceased as well as Saifuddin and Akhtar Khattak present there. He recorded the dying declaration Exh.P.11/A was made the basis of F.I.R. And case was registered under section 307, P.P.C. ' He then proceeded to the spot, recorded statements etc. In the meanwhile accused was produced before Tehsildar as he expressed that he would be making a confessional statement. He was taken to the Court of E.A.C.-I/City Magistrate, Quetta but Sheikh Abdul Hameed was not willing to give any confessional statement, therefore, he was sent to judicial custody. When he came to know that Arshad Ali has expired, he went to the hospital and confirmed his death. The case was converted from 307 to 302, P.P.C. ' As against this prosecution evidence accused produced P.W.1 Atiq-urRehman, who stated that although he married Mst. Anwar Sultana in December but later on divorced her and no child was born out of the wedlock. D.W.2 Arbab Lal Muhammad produced Exh.D.2/A a mutation entry of some property in favor of Mst. Anwar Sultana. D.W.3 Dr. Amin Mengal was produced in order to prove that Mst. Anwar Sultana had been admitted for treatment of poisoning. D.W.4 Sadiq Ali brought copy of an order along with record Exh.D.4/AA. D.W.5 Bashir Ahmed produced Exh.D.5/AA. D.W.6 Sarfraz Khan was Special Prosecutor in a case tried by Special Military Court where Sheikh Abdul Hameed was a defense counsel of Arshad Ali deceased and his mother. D.W.7 Muhammad Aslam produced Exh.D.7/A. D.W.9 Qadir Bakhsh tried to prove that Akhtar Khattak has remained in jail in connection with murder of deceased's father. D.W.10 also deposed to the same effect. D.W.11 Muhammad Saleem, Head Moharrar in Civil Lines Police Station deposed about the previous murder of the father of Arshad Ali and arrested and recorded statement of accused persons in the former case. D.W.12 Abdul Rehman produced record of some decided cases filed by Arshad Ali for succession
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etc. As well as statement of Mst. Anwar Sultana before Senior Civil Judge and D.W.13 Humayun stated nothing in respect of present case. ' After reproducing the gist of evidence of prosecution as well as of defense, it is proper time now to sift and reassess the evidence. ' As stated hereinabove, the prosecution produced 4 eye-witnesses who gave the ocular version. P.W. Anwar Sultana is the mother and P.W. Zahid and P.W. Amjad are brothers of the deceased Arshad Mi. The defense, therefore, mainly criticized their testimony firstly on the ground of relationship with the deceased contending that being interested witness their testimony should not be readily believed. In the first instance it may be observed that facts of each criminal case differ, therefore, it is to be seen in the context of entire evidenced brought on record. Mere relationship per se does' not render the evidence of such witness as inadmissible or untrustworthy, unless of course it is proved that the statements made by them were out of vengeance or some personal interest or ill-will. Apart from this while appraising evidence, the Court has to take into consideration the cumulative effect of all other evidence and to adjudge the truthfulness or otherwise of such piece of evidence. ' In the instant case, the prosecution version is…
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