Find a Lawyer

Criminal Review Petition No. 4 of 1988, decided on 6th December, 1988.

(In the matter of Review of the judgment of Supreme Court dated 8 6 1988, in Criminal Appeal No. 14 of 1983).

O. XLVI, R. 1 Review Subject to law and practice, Court may review its judgment or order in criminal proceedings on the ground of error apparent on the face of record. [Review].

O. XLVI, R. 1 Review Scope of Scope of review is confined to error or mistake arising out of the judgment or order of the Court and is much different from and more restricted than the scope of appeal. [Review].

It may be always welcome to review an order or judgment recorded earlier because, the fundamental function and noble cause of administration of justice is to advance justice to the aggrieved persons. In order to achieve the intended object of the establishment of law Courts, a Judge should not hesitate in reviewing his own order or judgment to rectify the mistake or error. The practice of this Court has been consistent to aforesaid view and it is adhered to strictly to advance the cause of dispensation of justice.

O. XLVI, R. 1 Review Sentence Review does not lie on point of quantum of sentence. [Review Sentence].

O. XLVI, R. 1 Review --Sentence Upholding of concurrent findings in passing the sentence of Qisas was objected to in review petition Such objection, held, was not tenable as that was primarily an objection liable to be taken in appeal and not in review petition.

O. XLVI, R. 1 Review Concurrent findings of facts resting on misreading, non reading and misconstruing of evidence resulting in injustice to either party, Supreme Court being the apex of judiciary is enjoined upon to redeem the injustice Injustice by virtue of appreciation of evidence despite resting on concurrent findings of Courts below could not be permitted to perpetuate.

O. XLVI, R. 1 Review Appreciation of evidence Objection pertaining to appreciation of evidence is beyond scope of review Evidence found to have escaped appreciation and resulting in mistake or error on face of record, could be reconsidered. [Review].

Ss. 3, 4 & 24 Penal Code (XLV of 1860), S.300 Sentence Sentence provided for murder committed in a free fight is to be fixed in light of provisions of S.300, Penal Code Court arriving at conclusion that offence covered by S.4 is proved but requisite number of witnesses is not available or the witnesses are not found (Aadil) sentence of Qisas, held was not permissible Court in such situation, is empowered to impose either of sentences listed under S.3 of the Act. [Sentence].

O. XLVI, R. 1 Review No mistake or error on the face of record pointed out All the points were argued in appeal, complete answer to which had already been analysed in the impugned order Review petition was held to be without force in circumstances.

Sardar Rafique Mahmood for Petitioner.

Mirza Muhammad Nisar, Addl. A. G. for the State.

The review petition is addressed against the order of this Court passed on June 8, 1988. whereby the sentence of Qisas" awarded to non petitioner No.2 was converted into rigorous imprisonment for 10 years.

2. On August 2, 1977, at 9 00 a.m. a report was lodged at Police Post Kulian by Muhammad Azeem containing the allegation that at 9 00 a.m. in the morning, Muhammad Farid, Muhammad Bashir and Muhammad Seemab, sons of Rafique, damaged his crop by their cattle trespass. The aforesaid persons were warned by him and Seemab Khan his son, for causing the mischief At 1 30 afternoon Muhammad Zareen, another son of the informant, apprised him of the conspiracy being hatched by Muhammad Sharif non petitioner Not, Muhammad Rafique, Muhammad Nazir, Muhammad Farid. Muhammad Aziz, Muhammad Nawaz and Gul Majid to take revenge of the incident of morning. Doctor Farman Ali and Maulvi Muhammad Sadiq were also ascribed their role in conspiracy with the aforesaid persons. It was alleged further that Seemab Khan, Muhammad Salim brothers and Babu Sher Afzal deceased were stocking the sand on the river bank on the day of incident, At 3 30 p.m. when the complainant arrived near the Forest Nursery Chattar Kalass, he noticed the accused persons, including Muhammad Sharif non petitioner No.2, going towards the river bank where Sher Afzal, Seemab and Slim were engaged in stocking the sand. The accused were armed. Muhammad Shard, non petitioner fired with a revolver on Sher Afrai which hit him in abdomen. The second fire was aimed at Muhammad Salim but it hit Rahim Shah, a nearby stranger tending his cattle in the fold it hit his left elbow. Muhammad Nazir, Muhammad Rafque and Farid the other accused also fired with their .12 bore guns in air. Other accused armed with Lathis opened attack on Seemab and Salim. On accomplishing their objective the accused left for Kulian Bazar. Complainant, Seemab his son and other eye witnesses who happened to be present on the scene, followed the accused party, whereas Muhammad Salim stayed with Sher Afzal who was lying on the spot in injured condition. The matter was reported to the local police at Kulian Police Post. After some interval both the parties clashed again in Kulian Bazar where Raja Abdul Qayyum of complainant party was injured. On the other side Muhammad Farid, Gul Majid and Muhammad Rafique received injuries at the hand of Seemab.

3. The version of defence was quite contrary to the aforesaid version of the prosecution. In counter version it was claimed that Muhammad Shard, Muhammad Farid his brother and another Muhammad Farid his nephew were going home from Kulian Bazar. They had covered hardly distance of one furlong when they were confronted by their opponents consisting of Muhammad Azim, Qayyum Khan, Master Majid Khan, Yaqub Khan, Javid Iqbal, Muhammad Salim, Muhammad Seemab, Mushtaq Ahmed, Muhammad Zarin, Sher Afzal deceased alongwith number of other persons. They were armed with guns and Lath"s. The accused on apprehending of danger turned back and fled towards Kulian Bazar. Sher Afzal deceased, Salim and Seemab overtook and stopped them when Javid Iqbal a member of Complainant party, fired revolver shot on Accused which by mistake hit Sher Afzal. On this, the accused manoeuvred their escape by entering the shop of Muhammad Rafique. Nevertheless, they were chased and attacked in the shop resulting in infliction of injuries on Muhammad Farid, Rafique and Gut Majid on one side and the injured person of the complainant party on the other side. It was further alleged that merchandise of the shop of Muhammad Rafique was thrown out and destroyed.

4. On trial Muhammad Sharif, non petitioner No.2 was found guilty of murder and was awarded the sentence of Qisas" by the District Criminal Court; other accused 7 in number were acquitted. The learned Shariat Court upheld the finding of the. District Criminal Court and dismissed the appeals of the defence and the prosecution. In appeal before this Court the sentence of Qisas" was converted into imprisonment for a period of 10 years. The judgment of this Court passed on June 8, 1988, is sought to be reviewed on the following grounds:

(i) that the nom petitioner No.2 Muhammad Sharif was found guilty by the trial Court as well as by the High Court and was awarded sentence of Qisas as provided by the Islam Tazeerati Act. The sentence of Qisas was recorded by the Court below on the basis of evidence produced by the prosecution as such there were concurrent judgments of the: Courts below on the point of Sentence awarded to the non petitioner No.2 and this Hon"ble Court escaped to consider this aspect of the case and Judgment needs review to this extent;

(ii) for that normally this Hon"ble Court avoids to disturb the finding of the, Courts below on the ground of appreciation of the evidence. This aspect of the; cask in hand needs reconsideration and review to meet the ends of justice;

(iii) for that this Hon"ble Court also reached at this conclusion that Sher Afzal was shot dead by the non petitioner but in the Islamic Penal Laws of Azad Jammu and Kashmir there is no provision to deal an accused of murder leniently if it is proved that accused is guilty of the offence as alleged. In the present case non petitioner was neither injured nor he was apprehending any danger to his life in the hand of deceased Sher Afzal. I his aspect of the case is also supported by the evidence on record;

(iv) for that this Hon"ble Court also is of the opinion that the non petitioner No.2 exceeded the right of private defence. In the circumstances this was a fit case for sentence of Qisas; and

(v) for that the Islamic Law provides provision to test the truthfulness of the witness by purgation and it was done in the present case and they were "Adil" in the circumstances without any other proof on record the testimony prosecution witnesses thus to he relied upon as was done by the Courts below:

5. Under Order XLVI, Rule 1 of the Supreme Court Rules, 1978, it is postulated that that subject to law and practice of the Court, the Court may review its Judgment or order in criminal proceedings on the ground of error apparent on the face of the record. The authority of review conferred on this Court necessarily is subject to law and practice of the Court. It is further described that the power of review can be invoked on the ground of an error apparent on the face of the record.

6. It is the celebrated rule of review that the party seeking review of an order of the Court has to satisfy that the impugned order or judgment suffered from an error on the face of the record. In other words the scope of review confines to the error or mistake arising out of the judgment or order of the Court The scope of review is, therefore, much different and restricted than the scope of appeal. It may be always welcome to review an order or judgment recorded" earlier because in our estimation, the fundamental function and noble cause of administration of justice is to advance justice to the aggrieved persons. In order to achieve the intended object of the establishment of law Courts a Judge should not hesitate in reviewing his own order or judgment to rectify the mistake or error. The practice of this Court has been consistent to aforesaid view anti it is adhered to strictly to advance the cause of dispensation of justice. However it may be described that it is well accepted that no review lies on the point of quantum of sentence. In Sabir Hussain alias Tonchi v. The State Criminal Review Petition No. 2/MR of 1983 it was observed by this Court:

"In order that an error may be a ground for review, it must be one which is apparent on the face of the record, i.e., it must be so manifest acid so clear that to keep such an error on the record may perpetuate visible injustice. Error may be of a fact or law but it must, however, be an error which is self evident and does not require any elaborate discussion.

Besides, it is also to be borne in mind that as finality attaches to the judgment delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of rehearing of the whole case nor it is an appeal against the judgment under review. It is, therefore, not permissible to embark upon the reiteration of the same contentions (as is done in the present case) as were advanced at the time of hearing of the appeal but were considered and repelled in the judgment under review. It needs also to be noted that it is well settled principle of law that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence if a legal sentence has been imposed or upheld after due consideration of all the relevant circumstances."

7. In present case the first objection is addressed to uphold the concurrent findings of the trial Court and the learned Shariat Court in passing the sentences of Qisas", on the non petitioner No.2. In my estimation this objection is untenable as it is primarily an objection liable to be taken in an appeal and not in, a review petition. Besides, it is in conflict with the celebrated rule of law which: postulates that once the concurrent findings of facts are found resting on misreading, non reading and misconstruing of evidence resulting in injustice to, either party, this Court being the apex of judiciary, is enjoined upon to redeem the injustice. This is so as an injustice by virtue of appreciation of evidence despite resting on concurrent findings of subordinate Courts, cannot be permitted to perpetuate.

8. The second objection pertains to appreciation of evidence. This point again is beyond the scope of review. Only that part of evidence is to be reconsidered which is found to have escaped its appreciation and resulted in mistake or error on the face of the record. The petition for review does not contain or point out any part of such evidence on record leading to a mistaken or erroneous conclusion of this Court. Therefore, the objection is turned down.

9. The next objection pertains to interpretation of provisions of Islamic Penal Laws Act. It was claimed that once the liability for infliction of fatal injury to deceased was fixed on Muhammad Sharif non petitioner, he was not entitled to any other sentence less than "Qisas". The plain answer to the objection is that section 4 of the Islamic Penal Laws Act which defines the offence of culpable homicide amounting to murder, is analogous to the provisions of section 300 of the Penal Code. It contains all the explanations and exceptions which arc enshrined in section 300, P.C. Thus, sentence provided for murder committed in a" free fight is to be fixed, in the light of those provisions. Moreover. section 24 of, Islamic Penal Laws Act, postulates that when the Court arrives at the conclusion that an offence covered by section 4 is proved but the requisite number of witnesses is not available or the witnesses arc not found (Aadil) sentence of Qisas was not permissible. In such situation the Court was empowered to impose either of the sentences listed under section 3 of the Act. An answer to the objection has been fairly dealt with in para. 24 of the impugned order which is reproduced:

"Under section 24 of the Islamic Penal Laws Act, it is postulated that when the Court arrives at the conclusion that an offence of murder is proved against the accused but the requisite number of witnesses is not available or that the witnesses are not found "(Aadil)" on account of which the accused cannot be awarded the sentences of "Qisas" or that in view of the circumstances of the case, the sentence of "Qisas" cannot he given, the Court is empowered to convict the accused and award him either of the sentence listed under section 3 of the Act.

In the present case, the circumstances listed above lead to the conclusion that it is not a case of sentence of "Qisas". The sentence of "Qisas" awarded by the trial Court and confirmed by the Shariat Court is, therefore, set aside. The sentence of 10 years" R.I. is deemed sufficient to meet the ends of justice. Here it is necessary to state that the convict has been in prison since his arrest. He is in death cell since his conviction passed by the trial Court. He is, therefore, considered entitled to the benefit of section 382(6), Cr.P.C. The period of imprisonment during trial and appeals shall be counted towards his sentence. The appeal of the convict is disposed of accordingly."

10. Mr. Rafique Mahmood, argued that this Court arrived at the conclusion that Muhammad Sharif, non petitioner exceeded the right of private defence. Therefore, sentence of "Qisas" was appropriate in the case. The objection is ill founded as the impugned order is not shown to contain such an observation. Nevertheless the justification of converting the sentence of "Qisas" into imprisonment of 10 years is listed in para. 23 of the impugned order. The same is reproduced:

"On review of the total circumstances of the case it is safe to hold that the case of the appellant Muhammad Sharif does not warrant sentence of "Qisas". The reasons are:

(i) Under the Islamic Penal Laws Act, it is enjoyed that an offence of murder shall be punishable with the sentence of "Qisas" where it is supported by the evidence of two male adult Muslim witnesses. It is further postulated that the Muslim male eye witnesses must be "Adil" as found so by the Court through (Tazkia-Shahood). This is a condition precedent. In the present case (Tazkia) was not conducted by the Court as directed by this Court in previous decisions, but it was undertaken only by District Qazi. It is, therefore, defective. Moreover, the record placed before this Court shows that "(Tazkia) was made in a mechanical fashion. The day of (Tazkia)" by Maulvi Hadayat Ullah precedes the date of despatch of particulars of the eve witnesses for the purpose. This suggests that no (Tazkia) was made in strict compliance of law. The report of (Muzki)" is incomplete as it does not contain sufficient evidence so as to satisfy that the qualifications, relating to the character of eye witnesses, fulfilled the condition of an "Adil" male Muslim witness. Therefore the flaw of law in (Tazkia)" is there. In absence of (Tazkia-Shahood) as described earlier, the sentence of "Qisas" is not permissible;

(ii) that the trial Court as well as the Shariat Court over looked to determine the place and manner of incident. Besides, both the Courts disbelieved the eye witnesses, as such acquitted seven out of eight accused. This has been done despite the fact that four of the eye witnesses were admittedly injured in the incident. As the responsibility of those; injuries was not determined, seven accused were set free. This suggests that the story of prosecution relating to the place, manner and origin of the occurrence was disbelieved. It is cardinal principle of criminal jurisprudence that when the story of prosecution relating to origin of the fight, manner and number of accused is not plausible, the Court has to scrutinise the facts of the case to arrive at its own conclusion. In this view of the matter when the origin of the fight, the manner of incident and place of occurrence as suggested by the prosecution is not considered free from doubt, we have to advert to the defence version in addition to other circumstances on the record. On this test of the proposition, we have come to the conclusion that the occurrence took place on the road side where both the parties came across and clashed openly. The number of injured persons on each side further suggests that on account of their past enmity the rival parties were looking for an appropriate moment to settle the dispute. On the day of occurrence they availed the opportunity by inflicting injuries on each other It is, therefore, a case of free fight; and

(iii) that it is accepted by the prosecution that Muhammad Sharif, accused had no motive to kill Sher Afzal. No enmity between the deceased and accused is shown. The incident of murder, therefore, appears to be without any motive. Therefore, in all circumstances, Muhammad Sharif had no cause to kill Sher Afzal to avenge his enmity."

11. The answer of the last objection also appears in para. 23(1) reproduced above.

12. On going through the grounds necessitating review of the impugned order, I have come to the conclusion that no mistake or error on the face of record has been pointed out to invoke the jurisdiction of the review. All the points is a matter of fact arc of the nature which were argued in appeal in this Court. However, complete answers to these points have been already analysed in the impugned order. Therefore, I find no reason to reopen the whole case to) reappreciate the aforesaid points.

There is no force in the review petition, it is, therefore, dismissed.

M.A.K./239/SC(AJK) Review petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.