Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Before Rustam S. Sidhwa, J
QADIR AND ANOTHER-Appellants
versus
THE STATE-Respondent
Criminal Appeal No. 238 of 1983, decided on 1st July, 1985.
-- Ss. 302/34 & 307/34 -Appreciation of evidence-Motive-Nothing came out in cross-examination to show that motive, as set up, was untrue or could not be relied upon with any degree of safety Fact that one out of two witnesses whose evidence was clear and straight forward, supported motive story, held, would not render story any less feeble, when both witnesses had supported same earlier Motive as set forth, therefore, stood fairly established by evidence of said witness in circumstances.
Ss. 302/34 & 308/34-Appreciation of evidence-Occurrence took place about seventy feet away from house of both eye-witnesses One of such witnesses was also injured in said occurrence -Both such witnesses had no enmity with accused as would have prompted ' then to falsely implicate accused persons for real culprits to respect of a capital charge of murder-Evidence of said witnesses appeared to be that of natural and straightforward having ring of truth Occular account completely established participation of accused in crime-Suggestion of defence that accused were falsely substituted not acceptable on any ground whatsoever-Both eye-witnesses being natural witnesses, had clearly seen the occurrence and their testimony, held, could not be discarded on any ground whatsoever in circumstances.
-- Ss. 302/34, 307/34 & 304-II-Appreciation of evidence-Accused inflicted two Lathi injuries each on head of deceased and prosecution witness - Co-accused also inflicted one Lathi .injury on head of deceased and one Lathi injury on right shoulder of prosecution witness-Both accused were united in common intention and did not suffer a scratch in the occurrence-Evidence on record not showing that a sudden fight took place-Accused persons, held, were guilty under S. 3,)2/34, P. P. C. for murder of deceased and S. 307/34, P. P. C. for attempt on life of prosecution witness-Alteration of sentence to one under S. 304-II, P. P. C. therefore, was not justified.
-- S. 382-B-Penal Code (XLV of 1860), Ss. 302/34, 307/34 & 53Sentence of life imprisonment-Benefit of S. 382-B, Cr. P. C. granted to accused by trial Court-Section 382-B, Cr. P. C. having been held, by Full Bench to be not applicable to case where sentence of imprisonment for life was imposed, High Court revoked benefit of S. 382-B, Cr. P. C. granted to accused by trial Court-Grounds favourable to the view that S. 382-B, Cr. P. C. was applicable to a case of life imprisonment, detailed.
Noor Elahi v. The State P L D 1983 Lah. 126; Kishwari Lal's case A I R
1945 Y C 64 and Zulfiqar Ali's case P L D 1984 Lah. 461 ref.
-- S. 53--Types of punishment-Nothing available in S. 53, P. P. C. to indicate that "life imprisonment" or "imprisonment" are invariably to be for an uncertain or for a certain term-No mention in section found to even indicate that punishment for "imprisonment for life" is invariably to be for an uncertain period and that of "imprisonment" for a definite period though figuratively they may appear to be so-Sentence of "life imprisonment" appears to be for an uncertain period, but it is definite, if one views at it as for a term, namely, term of his life-Criminal Procedure Code (V of 1898), S. 382-B.
-- S. 53-Criminal Procedure Code (V of 1898), S. 382-B-Section 53, P. P. C. not a definition section-Words "a sentence of imprisonment" appearing in section 3N2-B, Cr. P. C.-No restrictive definition can be imported into words "a sentence of imprisonment" appearing in section 382-B, Cr. P. C. from wording of S. 53, P. P. C. to thwart general application of S. 382-B, Cr. P. C. to cases of imprisonment whether it be for life or otherwise-Punishment for "imprisonment" or "life imprisonment", stated in S. 53, P. P. C. intrinsically can be treated as being for a period or term.
Ss. 382-B & 384--Section 382-B, Cr. P. C. basically enacted to deal with imprisonments generally, both for life and otherwise Words "sentence of imprisonment" appearing in S. 382-B, Cr. P. C. are used in general sense and have reference to sentence of "imprisonment for life" and "imprisonment" in cases other than provided by Ss. 381 and 382-A, Cr. P. C. as referred to in S. 383, Cr. P. C. which favours the view that S. 382-B, Cr. P. C. is applicable to a case of "life imprisonment". .
Section 382-B, Cr. P. C. was basically enacted to deal with imprisonments generally, both for life and otherwise, for it cannot be imagined that the legal draftsman wanted to provide the benefit of that section to cases of petty sentences only and specially excluded cases of "life imprisonment", in which prisoners suffered the longest incarceration as under-trial prisoners. The words "a sentence of imprisonment" as appearing in section 382-B, Cr. P. C. are therefore, use i in a general sense. Section 382-B, Cr. P. C. is not only section in Chapter XXVIII of the Code of Criminal Procedure that used the words "sentence of imprisonment" in a general sense. Section 384 in the same Chapter also used the words "sentence of imprisonment" in a general sense. Under this section, a warrant for the execution of a sentence of imprisonment has to be directed to the officer incharge of the jail, or other place in which the prisoner is, or is to be, confined. The words "sentence of imprisonment" obviously have reference to the sentence of "imprisonment for life" and "imprisonment" in cases other than those provided for by section 381 and section 382-A, as referred to in section 383. These circumstances favour the view that section 382-B, Cr. P. C. is applicable to a case of life imprisonment. This view is also fortified by a number of decisions of the Supreme Court of Pakistan, where the benefit of this provision has been clearly granted by that Court to life imprisonment cases. These decisions are not under the Supreme Court's Constitutional power of doing "complete justice", as available under Article 1870) of the 1973 Constitution of Pakistan. They are straight decisions under section 382-B, Cr. P. C. This is sufficient indication of the application of this section by the Supreme Court to life cases, whether stricto senso or on a beneficial construction.
-- Consistent view of Supreme Court being a straight decision on issue passes stage of Obiter dicta and is binding on all Courts in the country.
-- Full Bench decision of High Court-Notwithstanding single Judge's own differing view, such Judge is bound by view laid down in Full Bench decision and must accept said view unconditionally.
A. R. Arshad for Appellants.
Muhammad Rafi Siddigi for A.-G. for the State.
S. M. Rashid for the Complainant.
Date of hearing : 22nd June, 1985.
Qadeer and Bashir, sons of Ijaz, were tried by the learned Sessions Judge, Okara, under section 302/307/34, P. P. C. for the murder of Yabeen, deceased, and for making a murderous assault upon Irshad P. W. The learned trial Judge, by his judgment dated 24-4-1983,convicted both the accused under the said sections and sentenced them under section 302/34. P. P. C. to life imprisonment each and to pay a fine of Rupees One Thousand (Rs. 1,000) each or in default thereof to undergo further rigorous imprisonment for four months each and under section 307/34. P. P. C. to four years' rigorous imprisonment each with a fine of Rupees Five Hundred (Rs. 500) each or in default thereof to suffer further three months rigorous imprisonment each. Both the accused were ordered to pay compensation under section 544-A Cr. P. C. of Rupees Five Thousand (Rs. 5,000) each to the legal heirs of Yaseen, deceased, in respect of his murder or in default thereof to undergo further rigorous imprisonment for six months and Rupees Five Hundred (Rs. 500) each to Irshad injured P. W. in respect of injuries caused to him or in default thereof to undergo further rigorous imprisonment for three months each. Both the substantive sentences of imprisonment were ordered to run concurrently and the periods during which the two accused had be;m in the judicial lock up were ordered to be counted towards their sentences of imprisonment. The appeal (Cr. A. 238 of 1983) preferred by the two convicts against their conviction and sentences and the private revision (Cr. R. 441 of 1983) filed by Mst. Salaman Bibi for the enhancement of the sentences of the convicts, are both now before me for disposal.
2. The prosecution case in brief is that Yaseen, deceased, was the guest of his sister Mst. Salaman Bibi P. W. 8 in Chak No. 23/2-L, where she lived with her husband. The deceased had come about a month before the occurrence. On 21-11-1980 at about 7-30 a.m. Mst. Salaman P. W. 8 heard alarm from outside her house and came out and saw that Qadeer and Bashir, accused, both armed with Lathis, were altercating with her brother Yaseen, deceased, and her Fon Irshad P. W. 7. Within her sight, Qadeer, accused, inflicted two Lathi blows on the head of her brother Yaseen, deceased, followed by Bashir, accused who inflicted one Lathi blow on his head, whereupon the deceased fell down. When her son Irshad P. W. 7 advanced, Qadeer and Bashir, accused, also gave Lathi blows on his head. On the intervention of persons from the general public, both the accused alongwith their respective Lathis went away to their house. The motive for the occurrence was that a day before the occurrence, Bashir, accused, had uprooted a mango sapling from the land of Irshad P. W. 7, whereupon Irshad had given fist blows to Bashir, accused, and the latter had threatened the fonner that he would take revenge for the insult. Due to this grudge, both the accused had killed Yaseen, deceased, and injured Irshad P. W.
3. Both Yaseen, deceased, and Irshad P. W. were rushed to the Civil Hospital, Renala Khurd, where they were examined by Dr. Muhammad Sadique P. W. 6, who found three blunt weapon injuries on the head of Yaseen, deceased, and two blunt weapon injuries on the head and one on the right shoulder of Irshad P. W. 7. All the three injuries on the head of Yaseen, deceased, were found to be dangerous to life. All three injuries on Irshad P. W. 7 were perforce declared to be simple, as the X-ray reports regarding two of them was nor received by the doctor till he was examined in Court.
4. The statement Exh. P. K. of Mst. Salaman was recorded by Ahmad Khan A. S. I., P. W. I1 at Civil Hospital Renala Khurd at 12-30 noon. On the basis of the said statement, formal F. I. R. Exh. P. K. 1 was recorded at Police Station Renala Khurd at 12-50 p.m. by Ghulam Hussain M. H. C., P. W. 2.
5. On 22-11-1980, -Yaseen, deceased, died at the Mayo Hospital Lahore. His post-mortem examination by Dr. Muhammad Tahir Anees P. W. 12 revealed the same injuries which had earlier been noted by Dr. Muhammad Siddique P. W. 6.
6. On 26-11-1980, both the accused were arrested.
7. On 29-11-1980, Qadeer and Bashir, accused, led to the recovery of blood-stained Lathis P. 3 and P. 4 from their residences which were taken into possession vide memos. P. B. and P. C. in the presence of Muhammad Hafiz P. W. 4, Ahmad Khan A. S. I. P. W. 11 and Muhammad Alam (given up P. W.).
8. After completing the necessary investigation, the challan against both the accused was sent up.
9. At the trial, the prosecution produced Muhammad Irshad P. W. 7 to prove the motive, the said witness and Mst. Salaman P. W. 8 and Zaka-ud-Din P. W. 9 in proof of the ocular account. Muhammad Hafiz P. W. 4 and Ahmad Khan A. S. I. P. W. 11 in support of the recoveries and Dr. Muhammad Saddique P. W. 6 and Dr. Muhammad Tahir Anees P. W. 12 in corroboration of the medical testimony.
10. Both the accused denied all the accusations that were levelled against them, including the recoveries that were effected at their instance. They imputed their false involvement to enmity with the prosecution witnesses. They averred that Yaseen, deceased, and Muhammad lrshad P. W. 7 had a number of enemies, including Habib son of Barkat and Habib son of Jahangir and that these people had settled their own account and that Yaseen, deceased, and Muhammad Irshad P. W. 7 had received injuries from their hands.
11. The learned trial Judge, relying, upon the ocular account and the medical testimony, convicted and sentenced both the accused, as stated in para 1 above.
12. I have heard the arguments of the learned counsel for the appellants and the State and have also , perused the record. The evidence as regards motive is furnished by Muhammad Irshad P. W. 7. According to his testimony, two appellants owned land adjacent to his land and that a day prior to the ocrrurrence they had uprooted a mango sapling of his and he had quarrelled with them and had abused Bashir, appellant, for this mischief, who nourished a grudge against him for this. Mst. Salaman P. W. 8, however, was silent in her testimony as regard the motive, though in her statement Exh.,.P. K. she had mentioned that on the day prior to the occurrence Bashir, appellant, had uprooted a mango sapling from their lands, on which her son Muhammad Irshad P. W. had given him fist blows and the said appellant had threatened her son. The learned trial Judge disbelieved the motive, as it was not supported by Mst. Salaman P. W. 8 at the trial, but nothing has come out in cross-examination to show that the motive, as set up, was untrue or could not be relied upon with any degree of safety. The,4 fact that Muhammad Irshad P. W. 7 alone supports the motive does not render the story any the less feeble, assuming both he and Mst. Salaman P. W. 8 had supported the same earlier. In my estimation, the motive, as set forth, stands fairly established by the evidence of Muhammad Irshad P. W. 7, which is clear and straightforward in this respect.
13. The ocular account in this case is furnished by Muhammad Irshad P. W. 7, Mst. Salaman P. W. 8 and Zakauddtn P. W. 9. Zakauddin P. W. 9 was rigntly disbelieved by the trial Judge and I would exclude his presence. The otuer two appear to have witnessed the occurrence, which took place about seventy feet away from their house. Muhammad Irshad P. W. 7 was injured in the occurrence and his presence, therefore, at the spot cannot be disputed. Mst. Salaman P. W. 8 having her house very near toe place of occurrence, is a natural witness. Both the witnesses, therefore, clearly saw the occurrence and their testimony in this respect cannot be discarded on any ground whatsoever. Both have no enmity with the appellants as would have prompted them to falsely implicate them for the real culprits in respect of a capital charge of murder. Their evidence, which has been read, appears to be that of natural and straightforward witnesses having the ring of truth. The suggestion of the defence that the appellants were falsely substituted, cannot be accepted on any ground whatsoever. The ocular account completely establishes the participation of the appellants in the crime in instance. On behalf of the appellants it is contended that they are guilty under section 304-II and not under section 302, P. P. C., but this position cannot be accepted. Qadeer, appellant, inflicted two Lathi injuries each on the head of Yaseen, deceased, and Muhammad Irshad P. W. 7. Bashir appellant, inflicted one Lathi injury on the head of Yaseen, deceased, and one Lathi injury on the right shoulder of Muhammad Irshad P. W. 7. Both were united in common intention. The appellants did not suffer even a scratch in the occurrence. The evidence does not show that a sudden fight took place. In these circumstances, the appellants are guilty under section 302/34, P. P. C. for the murder of Yaseen, deceased, and under section 307/34, P. P. C. for attempt on the life of Muhammad Irshad P. W. 7.
14. Both the appellants, therefore, appear to have been properly convicted and sentenced under the said sections and I see no reason to alter these findings.
15. The only question that now arises is whether the benefit of section 382-B, Cr. P. C. can be allowed to the appellants. The benefit of this section has been granted by the trial Judge. In Noor Elahi v. The State (P L D 1983 Lah. 126), a Division Bench of this Court had the opportunity] of examining section 382-B, Cr. P. C. where it observed that the words "sentence of imprisonment" in section 382-B, Cr. P. C. were used in a general sense and not in any restricted sense so as to be only applicable to the category of punishment pro-,ided in the Fourth part of section 53 of the Pakistan Penal Code. This Court also noted that the Judicial Committee of the Privy Council in Kishwari Lal's case (A I R 1945 P C 64) had observed that a prisoner sentenced to transportation for life was ordinarily dealt with in the same manner as a prisoner sentenced to rigorous imprisonment and that this Court, therefore, felt that for the purposes of the application of section 382-B, the punishment of life imprisonment also fell within its ambit. It is true that the Judicial Committee also observed in Kishwari Lays case that they were not to be taken as laying down any proposition that a life sentence which was imposed in all cases should be treated as one of not more than twenty years or that the convict was necessarily entitled to remission, but this observation was undoubtedly made because a life sentence is figuratively to be treated as one until death and remissions are not available as of right, but have to be earned through good behavior and exemplary service. However, the fact remains that the Judicial Committee did treat prisoners sentenced to transportation for life as being dealt with in the same manner as prisoners sentenced to rigorous imprisonment, which is relevant for the application of section 382-B of the Code. Section 53 of the Pakistan Penal Code enumerates six types of punishment to which offenders liable under the provisions of the Penal Code may be sentenced. Amongst others, the second is imprisonment for life, which prior to 1972 was listed as "transportation for life", and the fourth is imprisonment, which can be rigorous or simple. There are no words in this section to indicate that these two punishments are invariably to be for an uncertain or for a certain term. In fact, there is nothing to even indicate that the punishment for imprisonment for life is invariably to be for an uncertain period and that of imprisonment for a definite period, though figuratively they may appear to be so. A sentence of life imprisonment appears to be for an uncertain period, but it is definite, if' one views at it as for a term, namely, the term of his life. Similarly, a sentence of imprisonment appears to be one where a person is sentenced to a stated period, but if one is sentenced till the following Idd or till the rising of the Court, it has the element of uncertainty, for in the former case it is dependent upon the time the Judge rises from the Court and in the latter case till the moon is cited. Section 53 of the Pakistan Penal Code is not a definition section. As such, when reading such general words as "a sentence of imprisonment", as appearing in section 382-B of the Code of Criminal Procedure, no restrictive definition can be imported into these words from the wording of section 53 of the Pakistan Penal Code to thwart the general application of the section to cases of imprisonment, whether it b;; for life or otherwise. Thus, intrinsically both the punishments stated in the second and fourth parts of section 53 of the Pakistan Penal Code can be treated as being for a period or term. Section 382 B, Cr. P. C. was basically enacted to deal with imprisonments generally,) both for life and otherwise, for it cannot be imagined that the legal draftsman wanted to provide the benefit of that section to cases of petty sentences only and specially excluded cases of life imprisonment, in which prisoners suffered the longest incarceration as under-trial prisoners. The words "a sentence imprisonment" as appearing in section 382-B, Cr. P. C. are, therefore, used in a general sense. Section 382-B, Cr. P. C. is not the only section in Chapter XXVIII, of the Code of Criminal Procedure that used the words "sentence of imprisonment" in a general sense. Section 384 in the same Chapter also used the words "sentence of imprisonment" in a general sense. Under this section, a warrant for the execution of a sentence of imprisonment has to directed to the officer incharge of the Jail, or other place in which the prisoner is, or is to be, confined. The words "sentence of imprisonment" obviously have reference to the sentence of imprisonment for life and imprisonment in cases other than those provided for by section 381 and section 382-A, as referred to in section 383. In these circumstances, my view is that section 382-B, Cr. P. C. is applicable to a case of life imprisonment. This view is al- -3 fortified by a number of decisions of the Supreme Court of Pakistan, where the benefit of this provision has been clearly granted by that Court to life imprisonment cases. These decisions are not under the Supreme Court's constitutional power of doing "complete justice", as available under Article 187(1) of the 1973 Constitution of Pakistan. They are straight decisions under section 382-B Cr. P. C. This is sufficient indication of the application of this section by the Supreme Court to life cases, whether stricto senso or on a beneficial construction. However, my attention stands drawn to Zulfiqar Ali's case (P L D 1984 Lah. 461) which is a Full Bench decision of this Court, which holds that section 382-B, Cr. P. C. is not applicable to cases where sentences of imprisonment for life have been imposed. In view of the consistently long view of the Supreme Court in this matter, which, I would say, has even passed the stage of obiter dicta and is binding on all High Courts, I feel that section 382-B, Cr. P. C. is applicable to life cases. How ever, in accordance with the established etiquette of this Court, notwithstanding my own differing view, I would hold that I am bound by the view laid down in Zulffqar Ali's case, which I must accept unconditionally. In these circumstances, I must revoke with regret the benefit of section 382-B Cr. P. C., which was granted by the trial Judge to the appellants. However, the appellants may move the Supreme Court of Pakistan in the; said connection, if they so desire, through the good offices of the Superintendent of the Jail in which they are confined, for the grant of the benefit of section 382-B, Cr. P. C. to their cases.
16. For the foregoing reasons, there being no merit in this appeal, the same is dismissed. The benefit of section 382-B, Cr. P. C., granted to the appellants by the trial Judge, is hereby revoked. As already stated, the appellants may move the Supreme Court of Pakistan for the restoration of this benefit, if so legally advised.
17. For reasons given above, there is no merit in the private revision (Cr. R. No. 441 of 1983) filed by Mst. Salaman Bibi, complainant, and the same is dismissed in limine.
M. B. A. Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer