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Petitioner: HAJI KHAN And 2 Others VS Respondent: THE STATE and others-
Court Name: Federal Shariat Court Judge(s): Ibadat Yar Khan, Tanzil-ur-Rahman Title: HAJI KHAN And 2 Others vs THE STATE and others- Case No.: Criminal Appeals Nos.12/Q of 1989 Date of Judgment:1991-08-17 Reported As: 1991 PCr.LJ 2110 Result: Appeals dismissed
JUDGMENT
JUDGMENT TANZIL-UR-RAHMAN, C.J.--- I had the advantage of going through the judgment proposed to be delivered by my learned brother, Mr. Justice Ibadat Yar Khan, J. In so far as the result of the appeals/suo motu notices is concerned, I am in full agreement with him, but I would like to state my own reasons for the same. 2. The case of the prosecution is that on 3rd/4th of Ramazan, corresponding to 24th/25th of May, 1985, the deceased Shadi Khan, a taxi-driver by profession, was present at the Old Taxi Stand, in Quetta. As usual, his vehicle i.e. Datsun (Art.P/13-A), bearing Registration No.181-939-82-Karachi-83, was with him for being hired. As it happened, all the three convict-appellants contacted the said deceased and engaged him for taking them to Gulistan Town, via Ghaza Band. At the time, two other tax-drivers, namely, Amanullah (P.W.31 and Muhammad Wazir (P.W.4) were also sitting with the deceased Shadi Khan. So in their presence the three appellants engaged Shadi Khan and left in his vehicle, towards Gulistan. 3. Later on, the same day, one Muhammad Zaman (P.W.2) had seen Shadi Khan, while the three appellants were sitting in his vehicle, at the Customs Barrier, where the vehicles coming from either side, normally stop. As the witness knew Shadi Khan, the two exchanged usual pleasantries and had some talk ---Shadi Khan told the witness that he was taking his passengers to Gulistan, via Ghaza Band. 4. On the night of 24-5-1985, when Mr. Saifullah Khan, Naib-Tehsildar (P.W.6) and Sh. Ghulam Sadiq, Reader to the Assistant Commissioner, Lower Zhob (P.W.8), and some others were on patrol, on Quetta-Zhob Road, some 300/350 miles away from Quetta, following complaints of highway robberies and of waylaying, noticed a vehicle approaching from Quetta side, on an unusual speed.
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It ignored their signal to stop and this roused the suspicion of the patrol party, as to the bona fides of the said vehicle, which was duly pursued and soon overtaken. The three convict-appellants were found to be the occupants of the vehicle. They were asked a few simple questions as to wherefrom had they come and where were they heading to, but they only gave prevaricative answers and as such, they were detained. The next day (25-5-1985) they were made over to the S.H.O. Police Station Zhob (Muhammad Sabir P.W.131, alongwith the vehicle. The S.H.O. Has explained that the three convict-appellants were arrested by him, on reasonable suspicion of their being concerned in a cognizable offence and that the vehicle in their possession was seized, as being suspected to be stolen one, (under section 54, Cr.P.C. And section 550, Cr.P.C. Respectively). He prepared seizure memo. In respect of the said vehicle, which is Exh.P.13-B and the vehicle is Art.P/13-A. Personal search of the said suspects was also carried out and from possession of Haji Khan, besides his own identity card, the Registration Book in respect of the vehicle in question (Art.P/13-B), the deceased Shadi Khan's cheque book (Art.P-13-C) and his driving licence (Art.P/13-E) were recovered. 5. It was on 1-6-1985, that one Muhammad Akram (P.W.5) reported at the Levies Thana, Qila Abdullah that a deadbody in burnt condition was lying in a Nullah, in the jungle, by the side of Ghaza Band Road. The deadbody was subsequently identified by one Zakum (P.W.1), to be that of his deceased brother, Shadi Khan, who had been missing with his vehicle. 6. The appellants were put on trial before the learned Additional Sessions Judge-1, Quetta, on the charge,, which specifically mentioned that all the three accused-appellants had `committed murder of driver of pick-up namely Shadi Khan and thereafter took away his pick-up' and thus, they committed the offence of Harabah, i.e. Highway robbery coupled with murder. 7. At the trial, while the prosecution examined 15 witnesses, accused Din Muhammad alone, produced a solitary defence witness namely, Muhammad Jan, and the said witness just made mention of good character of the accused. 8. All the three appellants made their statements on oath, in terms of section 340(2), Cr.P.C. It is noteworthy that according to their own assertion, accused Haji Khan and Gul Muhammad were together proceeding to Zhob, but they were arrested five miles short of their destination. Similarly, accused Din Muhammad's own plea is that while he was proceeding to Peshawar, via Zhob, he had been arrested in Zhob. 9. The trial resulted in the conviction of all the three accused-appellants for offence of Harabah liable to Tazir, under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and each of them was sentenced to life imprisonment with fine of Rs.5,000 and in default to undergo further imprisonment of one year's R.I., each vide judgment dated 21-5-1990, impugned before us in the appeals. Nevertheless, this Court issued notice to the appellants to show cause, as to why the sentence awarded to them by the trial Court, may not be enhanced. This notice was served on each appellant, in the Central Jail, Machh, on 1-5-1991, and it is in this context too that merits of the case are to be considered and determined. 10. First of all the evidence requires examination so as to connect the convict-appellants with the offence of Harabah coupled with murder. But before doing it let me quote the relevant verse of the Holy Qur'an on which the provision of law is based. It is stated in the Holy Qur'an: -- The punishment of those Who were war against God And His Apostle, and strive With might and main For mischief through the land Is: execution, or crucifixion Or the cutting of hands And feet from opposite sides,
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Or exile from the land; That is their disgrace A heavy punishment is theirs (Sura Ma---ida --- V: 36) 11. For the double crime of treason against the State, combined with treason against God, as shown by overt crimes, four alternative punishments are mentioned, any one of which is to be applied according to circumstances, viz., execution (cutting of head), crucifixion, maiming, or exile. These were features of the Criminal Law then and for centuries afterwards, except that tortures such as `hanging, drawing, and quartering' in English Law, and piercing of eyes and leaving the unfortunate victim exposed to a tropical sun, which was practised in Arabia, and all such tortures were abolished. (738, A. Yusuf Ali Vo1.I). 12. I would now like " to quote some extracts from the commentary of the above Verse 36 of Sura Al- Ma'ida from `Qur'an -- The Fundamental Law of Human Life', by Syed Anwer Ali, published by Hamdard Foundation Press, Pakistan (Vol.5, pages 317-24):-- "According to Verse 36, the punishment of those who were war against Allah and His Messenger, and strive to make mischief in the land, is that they should be killed or hanged on gallows, crucified or their hands and feet should be cut of on opposite sides or they should be driven to exile from the land. This is the disgrace in this World and in the Hereafter they would have to suffer more grievous punishment:" "The words i.e. Those who were war against Allah and His Messenger and strive to make mischief in the land, have been interpreted by the learned commentators to mean and include not only those opponents of Islam who waged wars against the Muslims, and made mischief in the land, and forcibly took lives and properties of innocent Muslims, but in their general application they also include all dacoits and murderers who create terror and disturb peace and order in the society. According to the learned jurists of Islam, the word includes (i) those who attack the people with guns, swords and other arms, (2) those who commit dacoity and murder inside or outside the city, and (3) those who attack and commit dacoity and murder openly. For all these persons four types of punishments have been prescribed in Verse 36 i.e. (1) they should be killed, (2) they should be crucified (hanged), (3) their hands and feet be cut of on opposite sides or (4) they should be exiled from the land. 13. The learned jurists are of the view that the punishment should be according to the gravity of the offence and in the first three punishments the use of superlative degree itself implies severity of the punishment. Further, since these punishments have been specifically provided, there is no option for the legal heirs of the deceased to forgive the culprit by accepting any ransom or without ransom. Further, if the offence has been committed by a group of persons, and even if the offence is proved only against anyone or some of them, the entire group should be punished. According to Saeed Bin Mussayyab, Ata, Dawood, Hassan Basri, Zahaak, Nakh'ee, Mujtahid, and Imam Maalik, the word meaning `or', used in Verse 36,:gives the discretion to the Judge to punish the culprits with all or any of these four punishments according to the gravity, of the offence committed by them. Imam Abu Hanifa, Shaafa'ee, Ahmad Bin Hambal and many companions of the Holy Prophet (p.b.u.h.) and Ta'been are, however, of the view that the word meaning `or' has been used for division of the verse, and according to them the different punishments are relative to different circumstances of the offences committed by the culprits. This is also supported by a Tradition of the Holy Prophet Muhammad (peace be upon him), on the authority of Hazrat Ibne Abbas, in which it is said that the Holy Prophet (p.b.u.h.) made an agreement with Abu Darda Aslami, but the latter committed breach of agreement and attacked some persons who were coming to Madina to embrace Islam. It was on that occasion that the Angel Gabrael brought the command of Allah in
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which it was said that one who has committed the murder and also the robbery, should be hanged, and the one who has simply committed the murder, but not the robbery, should be killed, and the one who has committed robbery, but not murder, his hand and foot on the opposite side should be cut of; and the one who has not done any deed of offence, but simply terrorised the people, he should be exiled from the land, and of the people who have murdered any Muslim or non-Muslim of the resident of Darul Islam, but not robbed, all of them should be killed; and if they have also committed robbery, then they should be crucified, and if they have only committed robbery, then their hands and feet should be cut of from the opposite sides, and if they have not committed either of the offences, but simply co-operated with them, they should be exiled from the land which also implies imprisonment. If the offence committed also involves killing of women or abduction, then death can be inflicted for any of these offences including the offences of rape or adultery. If there is only causing of wound, then in that case the punishment of retaliation may be enforced (Tafseer-e-Mazhari). 14. Lastly, this Verse says that this punishment is, in fact, a disgrace for the culprits in this world and in the Hereafter they shall hive grievous punishment 15. As Abdul Majid Daryabadi writes: Lest some of these penalties may appear `Barbarous' to -some hypersensitive Western reader, let him cast a glance on `drawing and quartering----a penalty of the English Criminal Code, maintained as late as the 18th century, inflicted on those found guilty of high treason touching the king's person or Government---the person committed was usually drawn on a sledge to the place of execution; there he was hung by the neck from a scaffold, being cut down and disembowelled while still alive; his head then was cut from his body and his corpse divided into four quarters. Many were the Catholics of England and Ireland----since the profession of their faith was declared high treason by law---who suffered this death. `In the reign of Henry III and Edward I there is abundant evidence that death was the common punishment for felony; and this continued to be the law of the land as to treason and as to all felonies, except petty larceny, down to the year 1826' (Stepehen's History of the Criminal Law of England, Vol. I p.458). In contemporary English Law, robbery is larceny with violence; and the guilty is liable to final acritude for life; and in addition, if a male, to be once privately whipped. The elements of the offence are essentially the same under American Law (Encyclopaedia Britannica, Vol. XIX, p.346) Majid, ibid, 339). 16. It now seems advantageous to refer to the next Verse 37 of Surah V, Al-- Ma'idahm, which states about the principle of repentance by dacoits and robbers before they are caught hold of. The verse reads:--- (Except those who repent before you overpower them. So know that Allah is Forgiving, Merciful). There is, however, an exception in respect of those persons who repent before they are caught. This exception is, however, in respect of punishment provided by the Shariah, but this will not exempt the culprits from the law of the land. The'' exemption granted by Qur'an is, however, in order to provide a chance to the culprits to mend their ways and repent before they are caught in connection with any of these offences. It is said that one Ali Asadi with a group of persons used to commit dacoity of the caravans passing by Madina. One day he heard a reciter of the Holy Qur'an reciting the verse. Hearing it, he went to the reciter and requested him to repeat it, and it was accordingly repeated. He then put his sword in the sheath, gave up dacoity, and went to Madina. Hazrat Abu Harairah took him to the Governor of Madina and recited the above-mentioned verse of the Holy Qur'an and said now you cannot punish him'. Similarly in the days of Hazrat Ali one Harisa Bin Babr rebelled against Muslims and started dacoity but thereafter he repented and
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presented himself to Hazrat Ali and he was not punished. It may, however, be noted that by mere granting of exemption from the punishment of Shariah, the rights and obligations of the fellow- beings violated are not forgiven. Thus, in respect of murder, blood-wit shall have to be paid, and in case of theft the things stolen or their cost thereof should be paid to the owner of it. (Ma'ariful Qur'an Vol. 111, p.120-124; Also see Roohul Ma'anni as quoted by Ziaul Qur'an, ibid, 73) (as quoted by Syed Anwar Ali ibid, 323-24). 17. The subject of highway robbery and its punishment has been discussed elaborately by me in my book `Islami Qawaneen Hudood, Qisas, Diyat and Ta'zirat' published by Qanuni Kutub Khana, Lahore, II Edition, the rely extracts from pages 74 -- 81 are as under:-- 18. Now reverting to the examination or assessment of the evidence on record it appears that:-- , (i)The two fellow-drivers sitting in the taxi, of the deceased Shadi Khan, i.e. P.W.3, Amanullah and P.W.4, Muhammad Wazir, in whose presence, the three convicts had engaged Shadi Khan, for taking them to Gulistan, via Ghaza Band, are both natural witnesses and their testimony is confidence inspiring. The evidence of these two witnesses has remained altogether unrebutted. These two witnesses duly identified each convict at the identification test parade held during investigation, and also in Court, during the trial. (ii)the three convicts were seen, sometime after, on the way, at the Customs Barrier, few miles away from Quetta, by a wayfarer, Muhammad Zaman (P.W.2), who knew Shadi Khan, and had some talk with him. This witness had seen the three convicts in the vehicle of Shadi Khan, at that time and there is every reason to believe him as to the identity of the convicts who were taking Shadi Khan towards Ghaza Band. (i.e)All the three convicts were found without any loss of time in joint --possession of the deceased Shadi Khan's vehicle, on 24-5-1985, some 300/350 miles away from Quetta near Zhob. Their failure to give a satisfactory account of themselves, had led to their arrest by the Naib---Tehsildar, Mr. Saifullah Khan (P.W.6) and Sh. Ghulam Sadiq, Reader to Assistant Commissioner, Lower Zhob (P.W.8). The testimony of these two natural witnesses also has remained unrebutted. (iv)The next day (25-5-1985), the three convicts and the vehicle in their possession, were handed over to S.H.O. Police Station Zhob. He, too, is a most natural witness as he had no option but to take over the custody of the three men and the vehicle, which was with them. He did, in fact, prepare the seizure memos. In respect of the stolen vehicle and other incriminating articles anti did the excellent job by giving were publicity as to the suspects and the vehicle, suspected to be stolen property. (v)The convicts have not denied the factum of their arrest as asserted by the prosecution. Their explanation rather supports the prosecution. Haji Khan and Gul Muhammad say that they were going to Zhob when they were arrested near Zhob. Din Muhammad says that his destination was Peshawar, when on his way there he was taken into custody in Zhob. What is material and most important is that none of them has claimed that he was arrested on a different date than that of the other(s). Thus the assertion of the prosecution that all the three convicts were arrested when they were found in the stolen vehicle is true and has been rightly believed by the learned trial Judge and so is believed by me. (vi)In the circumstances of the case, onus heavily lay on the convicts to explain, how far had they and the deceased remained together; when and where did they leave him. There are two particulars on which the convicts must have cleared their position, firstly, as to why they did not go to Gulistan which was the destination they had mentioned to Shadi Khan, and secondly how and why they retained possession of his vehicle while separating from him. Their failure to give satisfactory account of themselves in this behalf, burdens them with responsibility for the commission of the highway robbery coupled with murder.
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(vii) In- the facts and- circumstances of the case, Article 129 of Qanun-e-Shahadat Order, 1984, read with illustration (a) is fully attracted. Considering the common course of natural events which clearly show that the hired vehicle was found in possession of the three putative passengers, without its driver, far beyond the appointed destination, leads me to an irresistible conclusion that the vehicle was robbed and its f possession was acquired forcibly, only after rendering its driver helpless, possibly, by doing him to death. This conclusion or to use a mild expression, i.e. Strong presumption can be displaced only if the convicts/appellants satisfactorily account for their possession of the vehicle. Here, they have absolutely no explanation to offer. The three convicts, mere denial of the charge or bald statements of the convicts themselves, would not stand them in good stead, without any evidence in support. But no such defence evidence has been produced at all. (viii) An innocent person feels no difficulty in proving his innocence and, in any event, can create reasonable doubt invariably, as to the correctness of the charge against him. In this case, the act of the convicts was so ghastly and their conduct so barbaric, that despite time-lag of over four years of their arrest and eventual pronouncement of judicial verdict against all the three, no relative, friend or sympathiser came forward to put in a word as to the innocence or false involvement, of any of them. 19. Clearly, it is also of murder for the purpose of depriving Shadi Khan, of his vehicle, in furtherance of common intention of all the three convicts. They had contacted Shadi Khan at the Old Taxi Stand in Quetta, together and had engaged him for taking them to Gulistan, not by the ordinary route, but via Ghaza Band, where, there is stated to situate a jungle near the road. At such desolate place, it was not difficult for the three convicts to overpower Shadi Khan and put him to death and to dispose of his deadbody, so that it goes without being noticed or detected. I am convinced that, the appellants killed Shadi Khan and burnt his deadbody with the intention of rendering it unidentifiable, so that they could take away the vehicle for good, (but subsequent events foiled their scheme) when the convicts, the very second day (25-5-1985) were arrested near Zhob, the said vehicle was found in their joint possession and soon after, the deadbody was recovered and identified by his brother. 20. It may be stated that the existence of formation of a common intention, within the meaning of section 34, P.P.C. As also applicable to the said Ordinance is generally not susceptible to direct proof and has to be inferred from the attending circumstances of each case. Reference in this behalf, may be made to the following case-law, as relied on by the learned Advocate-General, Baluchistan:-- (1) Shamsher and another v. The State 1973 SCMR 69 (2) Khushi Muhammad v. The State 1969 SCMR 599. (3) Mst. Hamida Bano v. Ashiq Hussain PLD 1003 SC 109 (4) Bahar v. The Crown PLD 1954 FC 77 21. In the first cited case Shamsher and another v. The State 1973.8 C M R 69 on the point of common intention it was observed that:-- "The existence of formation of a common intention within the meaning of section 34 of the Pakistan Penal Code is not generally susceptible to direct proof, and has to be inferred from the attending circumstances of the case." 22. In the second cited case Khushi Muhammad v. The State 1969 SCMR 599 under sections 34 and 302, it was observed that "intention is mental condition and has often to be gathered from the facts and the surrounding circumstances of the case. One cannot always expect direct evidence to be forthcoming on a matter of this nature". 23. In the third cited case, Mst. Hamida Bano v. Ashiq Hussain PLD 1963 SC 109 it was inter alia observed that it (joint action) may be performed on the spur of the moment, it would fall more
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correctly within the rule of constructive liability under section 34, P.P.C. 24. In the fourth cited case, Bahar v. The Crown PLD 1954 FC 77 it was observed that:-- "In order to determine the intention of a person, it is very seldom that one can expect to find positive affirmative evidence; generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances---" It was thus held that:-- "On the facts and circumstances set out above, we are of the opinion that the appellant participated in the intention of Muhammad Umar of committing murder in the course of the dacoity, if needed, and that consequently section 34 of the Penal Code has been rightly applied to the case of the appellant. We see no reason to interfere with the decision of the Courts below. The appeal is according dismissed." 25. From the foregoing, it will be seen that the three convicts had common intention, and it was in furtherance of their common intention that the crime was committed. Adequate convincing ocular evidence exists on record that, before, and after, the death of Shadi Khan, the three convicts were seen sitting in his vehicle. When they left Quetta, Shadi Khan himself was driving his vehicle and the convicts were sitting with him as his passengers, and had engaged him for being taken to Gulistan. Shortly thereafter, when the convicts were arrested, with the vehicle in question, Shadi Khan was not with them. In such a situation, they only, could explain as to the whereabouts of Shadi Khan. As Shadi Khan was found murdered and his dead body badly burnt in a short span of time alter he had left Quetta with the convicts they could possibly escape culpability for the grisly crime, by clearing their position through a plausible explanation as to how they acquired possession of Shadi Khan's vehicle contrary to the terms of agreement under which they had engaged him. No such explanation having been offered, heavy penal liability would squarely rest on all the three convicts. In this connection, the following decisions of the Hon'ble Supreme Court seem to be relevant, as referred to by the learned Advocate-General Baluchistan:-- (1)Allah Ditta v. The Crown 1969 SCMR 558. (2)Abdus Samad v. The State PLD 1964 SC 167. (3)Bilhnoria alias Muhammad Hussain v. The State PLD 1958 SC (Pak.) 313. (4)Allahditto v. The State 1968 SCMR 378. (5)The State v. Mansur PLD 1966 SC 664. (6)Rehmat v. The State PLD 1977 SC 515. 26.In the first cited case, Allah Ditta v. The Crown 1969 SC M R558 the deceased was last seen alive in the company, of accused Allah Ditta. Allah Ditta's failure to furnish an explanation for the disappearance of Mst. Sairan who was last seen alive in his company, was held sufficient to sustain the findings of the Courts…
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