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Petitioner: Sardar Muhammad Nawaz Khan, J THE STATE and others VS Respondent: LIAQAT ALI and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed Title:Sardar Muhammad Nawaz Khan, J THE STATE and others vs LIAQAT ALI and
others Case No.: Criminal References Nos.108, 25, 28 and 43 of 1995 Date of Judgment:1999-06-28 Reported As: 2000 YLR 65 Result: Order accordingly Judgment ORDER ' SARDAR MUHAMMAD NAWAZ KHAN, J.---The above-titled appeals and the reference made by the District Court of Criminal Jurisdiction, Mirpur arise out of the same judgment, therefore, these shall stand disposed of through the following judgment. 2. Before dealing with the case in detail, we propose to record our observation regarding the appeal of convict accused Liaqat Ali. This appeal was received at the registry office of this Court on 21-12-1995 and it was placed before this Court on thesame day. This appeal merits no consideration. The reason being that the same is not competent on two grounds. Firstly the appeal is time-barred and secondly the convict appellant absconded at the time of pronouncement of judgment and he did not surrender before the Court order. The impugned judgment was pronounced on 12-6-1995. The limitation provided for filing of an appeal against the judgment of District Court of Criminal Jurisdiction is six months from the date of order. Therefore, the prescribed limitation for filing the instant appeal ended on 12-12-1995, but this appeal was received in the Registry Office of this Court on 21-12-1995. Thus, this appeal is hopelessly time-barred. As the convict appellant did not surrender before Court order and deliberately absconded at the time of impugned judgment, therefore, he has no right of audience. The convict accused had been facing trial and remained present during trial and deliberately absconded at the time of pronouncement of judgment. He was not exempted by the trial Court from personal appearance. 3. The other two appeals one by the complainant Muhammad Shafique and the other by the convict appellant Abdul Aziz shall be taken after answering the reference made by the trial Court under section 374, Cr.P.C., for confirmation of sentence. Before answering the reference, we feel it
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necessary to reproduce the relevant provision of law which gives the powers to this Court while sitting on a reference under section 374, Cr . P. C . The relevant provisions ection 376, Cr.P.C., which reads as under-- "376. In any case submitted under section 374, the High Court-- (a) may confirm the sentence, or pass any other sentence warranted by law, or (b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or a new trial on the same or an amended charge, or (c) may acquit the accused person: Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within the such period, until such appeal is disposed of. ' The above-quoted provision of law shows that when a reference is made under section 374, Cr.P.C., this Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused person for the infliction of the penalty of death or Qisas. In fact the proceedings before this Court are reappraisal and reassessment of the entire facts and law in order that this Court should be satisfied on the material about the guilt or innocence of the accused persons by coming to an independent conclusion of its own and in so doing this Court will be assisted by the opinion of the District Court of Criminal Jurisdiction. It is clear from the perusal of the sections 374, 375, 376 and 377, Cr.P.C., that in such circumstances the entire case is before this Court and in fact it is the continuation of the trial of the accused on the same evidence. Thus, while exercising its powers as reference Court under section 374, Cr.P.C. This Court is competent to pass any order, e.g., it may confirm the sentence or pass any other order warranted by law. The convict accused may be acquitted or the conviction may be annulled. Even the accused may be convicted for any offence of which the District Court of Criminal jurisdiction might have convicted him. To order a new trial on the same or amended charge is also permissible under section 376, Cr.P.C. Similarly this Court may also direct to take additional evidence or further inquiry or trial. Therefore, we proceed to answer the reference after examining the facts of the case and the evidence thereon. 4. A Crime No,129 of 1996 was registered at Police Station City, Mirpur on 22-7-1996 at about 00-15 a.m. At night. It was alleged in the report that at the night between 21/22 July, 1996 at about 11-45 p.m. Abdul Shakoor, Ghazanfar Ali, Muhammad Shafique, Muzaffar Ali and Abdur Rehman were sitting at Octroi Post Chittar-Parri when a Suzuki Van No, ID 1925 arrived from Mangla side. It was stopped and the driver was asked to pay octroi duty when a Toyota Corolla Car No,260 AJK arrived at the scene. It was occupied by Liaqat Ali, Javeed and was being driven by Abdul Aziz. They asked the Suzuki driver to move on, on which both the vehicles left the octroi post. The complainant and his associates suspected that the Suzuki Van was carrying some prohibited goods or the accused were otherwise avoiding the payment of octroi duty, therefore, they followed the Suzuki Van in their Car No,3213 Mark-11. The Suzuki Van driver, apprehending the chase of his vehicle, accelerated the speed. The accused's car driver attempted to hit the car of the complainant but they luckily escaped. On arrival near the Para Medical Project at Allama Iqbal Road, the car of the complainant party was stopped by Abdul Aziz driver by halting his car in the road, thus, blocking the road. The Suzuki driver on the direction of accused fled towards Chowk Shaheedan. Liaqat Ali, Javeed and Aziz came out of the car, Abdul Shakoor Muhammad Shafique, Ghazanfar Ali, Muzaffar Ali and Abdur Rehman also came out of their car. Mr. Liaqat Ali was armed with revolver whereas Mr. Javeed was armed with pistol/revolver. Abdul Aziz was having a baton in his hand at the relevant time. They attacked on the complainant, Abdul Shakor and his associates. Mr. Liaqat Ali fired on Ghazanfar Ali which hit on his right elbow. The other fire made at the complainant hit the car of the complainant on the right side. He also fired on Abdul Shakoor which hit him and he fell down. Javeed also fired on the complainant but he missed the target. Abdul Aziz assaulted the
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complainant with his baton which caused in by on his right hand. The complainant party for their safety left the place of incident while Abdul Shakoor remained lying there. The accused continued firing. The Suzuki Van driver disappeared from the sight of the complainant and his associates. 5. The complainant Muhammad Shafique firstly took the injured person Ghazanfar Ali to the hospital and by leaving him there, he proceeded to lodge the report at Police Station, Mirpur. 6. The police concerned after registration of the case proceeded to the place of occurrence and by reaching there prepared site sketch and, thereafter, the dead body of Abdul Shakoor was shifted to the hospital. The post-mortem was c inducted and it was opined by the doctor that the deceased Abdul Shakoor died on account of fire-arm injury. A bullet was also recovered from the body of the deceased and was handed over to the police in a sealed position. The statement of the complainant and other eye-witnesses were also recorded by the police. The medico-legal reports pertaining to the injuries on the person of P.W. Ghazanfar Ali and the complainant Muhammad Shafique were also obtained from the concerned doctor and were made part of the file. The accused persons after alleged commission of murder, absconded and they were arrested after a couple of days from Pakistan. The weapons of offence i,e,, revolvers and baton were also recovered by the police at the potation of the accused persons. The revolvers and the blood-stained clothes of the deceased were sent to the experts and after obtaining their opinion, the reports were brought on file. The police after completion of investigation, found all the three accused as guilty of the offence with which they were charged. A challan was submitted before the District Court of Criminal Jurisdiction, Mirpur on 4-9-1996. 7. The trial Court examined the accused persons under section 242, Cr.P.C., wherein they denied the allegation levelled against them. Thus, the prosecution was directed to lead to evidence in support of its claim. According to the list of witnesses there were as many as 18 P.Ws. Out of which P.Ws. Nos.3, 6, 7, 9, 17 and 19 were given up by the prosecution whereas the rest of the witnesses were produced before the trial Court. After completion of the prosecution evidence, the accused persons were again examined under section 342, Cr.P.C., and they once again denied the allegation against them. The evidence produced by the prosecution was also put to them and they termed the same as wrong and malicious. The accused Abdul Aziz was examined under section 342, Cr.P.C., on 28-11- 1993 whereas the other two accused Liaqat Ali and Javeed were examined on 16-2-1994 and the defence was directed to produce evidence to support their version, if any. The accused were granted as many as 12 opportunities spreading over a period of 7 months at least but they failed to do so. The trial Court then fixed the case for purgation and arguments on 22-10-1994, but on the aforesaid date the arguments could not be heard and the case was adjourned for six times and consequently on 3-12-1994 an application from the complainant side was moved that the accused persons who were at large at the relevant time were taking undue advantage of their bail, therefore, a request to hear the arguments were made but the trial Court again on the request of the accused Liaqat All adjourned the case to 7-12-1994. On the aforesaid date Mr. Baseer Ahmad Qurashi, Advocate was engaged by the defence, therefore, he again sought an adjournment and the case was shifted to 17-12-1994 and the arguments were heard partly. The case was again adjourned to 24-12-1994 but the arguments could not be concluded on the aforementioned date also. The case was adjourned to 26-12-1994 and an application by the defence to summon the P.Ws. Nos.2, 4 and 5 was submitted as, according to the defence, the aforesaid witnesses had retracted from their previous statements and some affidavits were also placed on the file of the trial Court. The trial Court dismissed the application and fixed the case for arguments on 27-12- 1994. The defence approached this Court through a revision petition against the order of the trial Court dismissing the application for summoning the witnesses. The arguments could not be heard on account of the fact that the matter pertaining to the rejection of the application remained pending before this Court and before Honourable Supreme Court
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of Azad Jammu and Kashmir for some time. The revision petition, filed by the defence was dismissed 'by this Court and it was left open to assess the matter while deciding the case. The accused persons approached the apex Court also against the order of this Court but later on they withdrew their appeal. Therefore, the order of rejection of application pertaining to summoning of P.Ws. Nos.2, 4 and 5 remained intact. The case was once again fixed for arguments but another application to review the order of the trial Court pertaining to P.Ws. Nos.2, 4 and 5 was presented before the trial Court on 2-5-1995. This review application also stood dismissed by the trial Court on 4-5-1995 and the case was fixed for arguments on 16-5-1995. The trial Court remained engaged in hearing the arguments till 4-6-1995 and on the aforesaid date the arguments were concluded. The impugned judgment was pronounced on 12-6-1995. The principal accused Mr. Liaqat Ali was sentenced to Qisas whereas Abdul Aziz was awarded a sentence of Hakoomat-e-Addal. Rs, Twenty Thousand and in case of default in payment, he had to undergo a further imprisonment for six months. The accused respondent Javeed was acquitted through the aforesaid order. Hence the above-titled appeals by the parties and the reference made by the trial Court for confirmation of sentence awarded to the principal accused Mr. Liaqat Ali. 8. The learned counsel representing the co-accused Abdul Aziz during his arguments submitted that though the principal accused did not surrender before the conviction order and as such he had no right of audience but unless the liability of the principal accused was determined, it was not possible to hold the co-accused vicariously liable for the act of principal accused, therefore, the learned counsel requested the Court to allow him to reopen the entire case. As stated earlier that this Court was sitting on a reference made under section 374, Cr.P.C., also and we were under legal obligation to examine the whole case in the light of the evidence on record. Thus, we allowed the learned counsel for the co-accused Abdul Aziz to argue the case on merits. 9. The learned counsel for the convict accused Abdul Aziz while assailing the impugned judgment raised the following points on the basis of which he stressed the acquittal of his client: (1) The F.I.R. And the station diary (Roznamcha). On the basis of which the prosecution has raised its edifice were tailored and fabricated documents, thus, making the case doubtful. (2) The two alleged eye-witnesses namely Ghazanfar Ali and Muzaffar Ali had retracted from their previous statements before the trial Court through different affidavits placed on record and this fact had a definite bearing on the case casting a serious doubt. (3) As the aforesaid witnesses has retracted from their statements before the trial Court, therefore, those were wrongly relied upon by the trial Court. (4) The evidence of the aforesaid witnesses, even if the fact of retraction was not accepted, were not trustworthy. (5) The evidence of complainant Muhammad Shafique was also not confidence inspiring. (6) The direct evidence and the site sketch when placed in juxtaposition, it did not suggest the fatal injury to the deceased to have been inflicted by -the convict accused, Liaqat Ali. (7) The Ballistic Expert Report that the bullet found and taken out of the dead body could not be fired from the revolver allegedly recovered at the pointation of the accused Liaqat Ali, was also fatal to the prosecution case. (8) That each and every ground mentioned above merited acquittal of the accused persons, therefore, the impugned judgment was bad in law. ' On contrary, the learned counsel for the complainant assisted by Additional Advocate General raised the following points to support the prosecution story:--- (1) The accused party stopped the vehicle of the complainant and his associates while they were chasing the Suzuki Van bearing No,ID-1925 carrying some contraband goods or perhaps avoiding the octroi tax and mounted attack on them.
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(2) The presence of all the eye-witnesses and the accused party is an admitted fact and the F.I.R., was lodged immediately after occurrence by an injured person whose presence is admitted, therefore, the evidence of the complainant and the other eyewitnesses could not be discarded. (3) The contradictions pointed out in the F.I.R., and Roznamcha were baseless having no negative bearing on the case. (4) Defence had been continuously trying to destroy the prosecution evidence and the P.Ws. Ghazanfar Ali and Muzaffar Ali did not retract from he previous statements. They did not swear the affidavits placed on record by the defence and in fact it was an attempt to destroy the prosecution case. (5) The bullet found and taken out of the dead body was changed during the course by the concerned Official who fell in connivance with the accused persons and only then the same was sent to Ballistic Expert to destroy the prosecution case. There was no reason to disbelieve the testimony of eye-witnesses especially when they were injured and their presence was admitted. (6) That even if the defence argument regarding the retraction of Ghazanfar Ali and Muzaffar Ali was accepted' to be correct, the evidence of the complainant Muhammad Shafique being perfectly impartial and confidence inspiring was sufficient to convict the accused persons. (7) The principal accused was also charged with commission of offence under section, 707, APC and 15, IPL and the evidence on record also suggested to convict him for commission of the offence but the trial Court had inadvertently omitted to record the order of the sentence in this respect. (8) The co-accused Abdul Aziz was wrongly awarded to lesser punishment whereas the, acquittal of co-accused Javeed was not warranted by the facts of the case. (9) That the accused persons remained fugitive from law from some time, therefore, this fact acted as a strong presumption against them. (10) That the Courts in Azad Kashmir are bound by the codified law and the Parliament or any other competent authority has not legislated any provision regarding retraction from the evidence, thus, the same could not be considered. 10. The learned counsel for the co-accused Abdul Aziz argued that the entries made in the Roznamcha Waqiati were at variance with the entries of F.I.R. There was no specific role attributed to Liaqat Ali accused in Roznamcha Waqiati whereas firing had been attributed to him in the F.I.R., by which he was alleged to have caused the death of Abdul Shakoor, the learned counsel contended. It was a further argument of the learned counsel that the original form on which the F.I.R., of the incident was recorded was bearing Serial No,15, therefore, the rest of the copies should have borne the same serial number, but one of the forms was with Serial No, as 16, thus, in the estimation of the learned counsel, the F.I.R., was subsequently changed. According to the learned counsel, had the F.I.R., been not replaced all the 4 copies of the F.I.R., would have had the same serial Number. We have closely examined the copies of the F.I.R., placed on the record of the trial Court and the original Register pertaining to F.I.R., and Roznamcha which have been placed on record before the trial Court. The contents and the substance of the report bearing its Serials Nos.15 and 16 was the same. The case number 129 of 1996 also found place on both the forms. The specimen signatures of the concerned police officer were also compared by the Court and found as resembling to each other. The difference in serial numbers of the forms on which the F.I.R., was recorded appeared due to misprinting. After examining the relevant Register, containing from on which the 1st Information Report was recorded, we found some other printing mistakes regarding the serial number out of the four forms which normally would bear identical serial numbers. Some of the same were bearing different serial numbers as a result of misprinting. Therefore, after close examination of the Register pertaining to the F.I.R., we are of the view that the difference ' in serial number is a printing mistake and the F.I.R., in this case has been not subsequently changed and is the same which was lodged by the complainant at the relevant time and stood corroborated by
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the complainant during his statement before the trial Court. Roznamcha (station diary) is a subsequent document prepared by the concerned official and, under law, only brief account is to be recorded on the aforesaid document after registration of the F.I.R. The register. Pertaining irn Roznamcha was also carefully examined by the Court. It bears the lame case number which finds place on the F.I.R. Exh.PA. This fact suffices to hold that the F.I.R., in the instant case was not subsequently changed. However, according to Roznamcha, no specific role has been attributed to Liaqat Ali accused but as stated earlier the Roznamcha Waqiati is a document, subsequently prepared by an official having domain on it and, under law, only a brief account of the incidence is to be given in it. The Court has to see whether the F.I.R. On the basis of which the prosecution has raised its edifice stands corroborated by the evidence or not. If any official having control over an official register, inadvertently or carelessly makes an entry in the register concerned, how can a report given by an injured eye-witness can be disbelieved. 11. The second objection raised by the learned counsel was about the retraction of P Ws, Ghazanfar Ali, Zafar Ali from their previous statements recorded by them before the trial Court. To meet this objection the learned counsel for the complainant maintained that as there was no provision in Islamic Penal Laws Act, 1974 regarding the retraction of witnesses from their statements previously recorded, therefore, this objection merited no consideration. It is felt proper to resolve this controversy first. The relevant provision contained in Islamic Penal Laws Act, 1974 is section 29 of the aforesaid Act which reads as under: {{URDU TEXT}} ' Under Islamic Laws any witness may retract from his previous statement at any time before the execution of the sentence and it is correct that the aforesaid provision of law is hopeful to arrive at the conclusions that if a witness retracts from his previous statement it shall affect the execution of the sentence. But the difficulty is that no procedure for retraction has been laid down in Islamic Penal Laws Act, 1974. However, there are certain conditions precedent for the Court to arrive at the conclusion whether or not a witness has retracted from his previous statement. The retraction must be made through a statement by the witness before the Court in presence of the parties and that the same must be volunteer in the estimation of the Court. The presence of the witness before the Court is possible only in two situations. The witness may voluntarily appear before the Court or he/she may be called by the Court when an application or any other material requiring the summoning of the witness is placed before it. ' As the aforesaid witnesses did not appear voluntarily and there is no procedure provided in Islamic Penal Laws Act, 1974 for procuring the attendance of the witness, therefore, there is no alternative but to have a resort to Criminal Procedure Code. The relevant provision of Criminal Procedure Code pertaining to the proposition in hand is section 540, Cr.P.C., which is reproduced as follows: "540. Power to summon material witness or examine person present.---Any Court may, at any stage of enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." ' The above-referred section primarily is intended to enable the Court seized with the matter to dig- out the truth. It consists of two parts. In its first part discretionary powers have been granted to a Court to summon or even recall any witness for recording the statement if his statement appears to have been essential for the just decision of the case. It is also correct that powers to the Court under this section can be exercised at any stage of proceeding in a case. However, these powers can be exercised for judicial consideration only and not to advance the cause of prosecution or that of the defence. This section is basically intended to record the statement of such a person who
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can help the Court in reaching a just decision of the case. The powers under this section can be exercised in order to know about something which could not be brought on record either due to negligence of the parties or intentional act .Of the parties. No doubt a person who has appeared as a witness and recorded his statement before the Court, can be resummoned and re-examined by the Court, if, in his earlier statement there is some ambiguity or some fact had been deposed to either due to failure of the parties examining him or for any other reason. 12. The learned counsel for the accused Abdul Aziz during his argument relied upon PLD 1987 Shariat Court (AJ&K) 6 and PLD 1985 SC 233. The relevant portion of the judgment of the Shariat Court (AJ&K) is reproduced as under: "S-540. Scope and application.---On completion of trial or conclusion of final arguments, the Court vested with authority to recall a witness, in order to allow him to retract or to examine him to ascertain the retraction made before the Court through an affidavit or otherwise. ' Section 540, Cr.P.C. Is the…
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