2009 PLP 1188 (SCMR)

MUHAMMAD MOOSA K. LEGHARI, J.

The appellant along with three other accused persons was tried by IVth Additional Sessions Judge, Karachi (West), in consequence of registration of F.I.R. No.142 of 1995, Police Station, Mochkao on the complaint of first informant Abdul Ghafoor for causing death of Muhammad Sadiq, Karim Bukhsh and Muhammad Usman and causing injuries to the complainant and P.W. Muhammad Ishaq on 14-1-1995.

2. On conclusion of trial, all the accused were convicted under section 302,. P.P.C. and sentenced to death.

3. On appeal, all the convicts except the appellant were acquitted of the charge by extending them benefit of doubt. By the judgment, dated 3-2-2006, learned High Court of Sindh while rejecting the appeal of the appellant upheld the conviction and maintained the sentence of death.

4. Vide order, dated 15-5-2006, leave to appeal was granted inter alia, to examine as to whether the learned High Court under the circumstances of the case, was justified in confirming death sentence of the appellant while at the same time acquitting co-accused, namely, Khair Muhammad and Lal Muhammad from the charge of murder on the same set of evidence.

5. Learned Advocate Supreme Court for the appellant, at the outset prayed for commuting the sentence of death and altering the same to life imprisonment on the ground that while the High Court acquitted the co-convicts of the charge of murder by extending them benefit of doubt, the appellant was not liable to normal penalty of death but was entitled to a lesser sentence. He argued that the appellant was an old and infirm person aged about 84 years and has remained in custody since 1995. Relying upon the case of Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859, learned counsel argued that the concept of benefit of doubt, can also be pressed in the matter of sentence, in addition to consideration of question of guilt or otherwise. Learned counsel further submitted that the evidence in respect of recovery and motive was not believed by learned High Court which also provided a valid circumstances to mitigate the sentence. In support of his contentions learned counsel also placed reliance on Israr Ali v. The State 2007 SCMR 525 and Iftikhar Hussain and another v. The State 2004 SCMR 1185.

6. Conversely, learned Additional Prosecutor-General, supported the impugned judgment and argued that normal penalty for committing murder was death and that the circumstances as put forward were not sufficient to alter the sentence from death to life. The complainant who appeared in person submitted that the appellant was responsible for causing the murder of three persons besides injuring him, as such was not entitled to leniency in the punishment.

7. We have given anxious consideration to the arguments advanced before us, examined the case-law and scrutinized the evidence as well as the impugned judgment. It is an admitted position that the ocular evidence qua co-accused Khair Muhammad and Lal Muhammad was not believed by the Appellate Court by observing that the evidence was exaggerated and required corroboration which was lacking. It was further held that the motive as set up by the prosecution remained unproved. The High Court further observed, and so rightly that the evidence with regard to recovery of weapons was not admissible.

8. It will be pertinently noted that the age of the appellant in his statement recorded under section 342, Cr.P.C. on 19-4-2000 is mentioned 84 years, whereas according to medical examination conducted on 31-7-2008, his age was determined to be near to 70 years. Be that as it may, it is not disputed that the appellant is in the advanced age. He is in continuous incarceration since 1995, and understandably in death cell as a condemned prisoner since the date of the judgment of trial Court viz. 29-12-2001.

9. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence. In the case of Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859, it was ruled by this Court "that the principle underlying the concept of benefit of doubt can, in addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence".

10. For the above reasons, we are of the considered view that in the given situation, there are mitigating circumstances for awarding lesser penalty. Resultantly while dismissing the appeal and maintaining the conviction, we modify the sentence of death awarded to the appellant by awarding him imprisonment for life. Rest of the convictions and sentences awarded to the appellant shall, however, remain unaltered. Consequently, the appellant shall be entitled to the benefit admissible under section 382-B, Cr.P.C.

11. Subject to modification in the sentence, the appeal is dismissed. Above are the reasons in support of the short order passed on 8-4-2009. M.B.A./M-54/SC Order accordingly.