P L D 2003 Supreme Court 240 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment dated 12th June, 2001 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby sentence of death awarded to respondent under section 302(b), P.P.C was reduced to life imprisonment with a direction to him to pay Rs.50,000 as compensation to the legal heirs of the deceased Azhar Abbas 6/7 years old son of Muhammad Razzaq.

2. Precisely stating the fats of the case are that vide F.I.R No.70 dated 27th March, 1994 lodged by petitioner Khuda Bakhsh, convict/respondent was involved in a case under section 302, P.P.C on the stated allegation that on 26th March, 1994 at 3-00 p.m. the deceased Azhar Abbas minor boy aged about 6/7 years went to Tanky Wala playground for playing but did not return to home. However, next day, i.e. 27th March, 1994 his dead body was found lying in a side of ground. On recovery of the same, case was registered with Police Station Pir Wadhai. In the meanwhile respondent who is stated to be maternal uncle of the deceased made extra judicial confession about the murder of minor boy. As such he was taken into custody. During course of investigation, on his pointation, incriminating articles namely, blood-stained knife etc. were recovered. The respondent was sent up to face trial before Sessions judge, who after observing codal formalities found him guilty for the commission of offence under section 302(b), P.P.C and accordingly he was sentenced to death with fine of Rs.50,000 which was ordered to be paid as compensation to the legal heirs of the deceased.

3. On appeal, learned High Court reduced the sentence from death to life imprisonment. Concluding para. from the judgment of the High Court is reproduced hereinbelow:

" .. The presence of the deceased in the house of appellant who was real maternal uncle of the deceased was not unnatural but without specific proof that the motive behind the occurrence was of committing the sodomy with the boy, the presumption of committing such an offence cannot be raised and thus the motive given by the prosecution was not proved. The circumstances do not indicate any other apparent reason of committing the murder of his real nephew by the appellant, therefore, the cause of murder being shrouded in mystery would be a source of mitigation in favour of the appellant. We, therefore, while maintaining the conviction of the appellant under section 302(b), P.P.C reduce his sentence from death to imprisonment for life and dismiss this appeal. The death sentence awarded to Muhammad Safdar appellant is not confirmed. However, we do not consider it a fit case for grant of benefit of section 382-B, Cr.P.C. The murder reference is answered accordingly."

4. Instant petition has been filed for leave to appeal with the prayer that sentence of life imprisonment may be enhanced to death as it. was awarded to respondent by the trial Court.

5. On the last date of hearing i.e. 11th November, 2002, notice was also given to respondent as well as Superintendent, Central Jail Adiala, Rawalpindi, with a direction to him to submit a detail statement of the period, which respondent had already undergone because our apprehension was that if during pendency of the petition the respondent had served out his sentence of life imprisonment then case have to be examined from different angle namely after serving out sentence of life imprisonment, enhancement in the sentence would not militate against the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan and under section 403, Cr.P.C.

6. Mr. Nadeem Warraich, Superintendent, Central Jail, Adiala, Rawalpindi appeared and stated that notice has been duly served upon the respondent. According to him respondent was in custody from 29th August, 1995 because benefit of section 382-B, Cr.P.C. was not given to him by the learned High Court. However, he stated that after earning remissions, he has already completed the period of life imprisonment but he is presently in custody as he is facing trial in another case under section 13-E of the Arms Ordinance, 1965, which was connected with the murder case.

7. Mr. Tariq Mahmood Khokhar, learned Additional Advocate General. Punjab appeared on Court notice. Petitioner Khuda Bakhsh appeared in person because his counsel is out of station.

8. We have already heard the arguments of learned counsel for petitioner on the last date of hearing. Today after hearing learned Additional Advocate-General and having gone through the available record, we are inclined to grant leave, inter alia, to consider the following questions:-- (a) As to whether conclusion of the High Court in reducing the sentence from death to life imprisonment is sustainable on the strength of arguments that motive is shrouded in mystery? (b) As to whether in absence of motive convict was not liable for normal penalty of death as envisaged under section 302(b), P.P.C, in view of the law laid down by this Court in the cases of Ghuncha Gul v. The State (1971 SCMR 368), Waris Ali alias Dulli v. The State (1999 SCMR 1469), Sarfraz alias Sappi v. The State (2000 SCMR 1758) and in the case of Anees Ahmad alias Muhammad A Umer and another v. The State (2002 SCMR 1431)? (c) What would be the effect of the judgments in the cases of Mst. Razia Begum v. Jahangir and others (PLD 1982 SC 302), Bahadur Ali and others v. The State and others (2002 SCMR 93) and Amir Khan and others v. The State and others . (2002 SCMR 403) because respondent had already undergone the sentence of life imprisonment in pursuance of impugned order passed by learned High Court?

9. As the respondent has already undergone the sentence of life imprisonment after earning remissions, chart of which has been placed on record by the Superintendent Jail, therefore, he will be released from custody subject to his furnishing surety bonds in the sum of Rs.50,000 with two sureties and P.R. in the like amount to the satisfaction of the Registrar of this Court. Officer may fix the appeal arising out of instant petition before a Bench comprising more than three Hon'ble Judges subject to soliciting necessary approval from Hon'ble Chief Justice, because reported judgments cited in para 'c' have been delivered by the Benches comprising of three Hon'ble Judges. Copy of this order be also sent to the convict/respondent through Superintendent, Central Jail, Adiala, Rawalpindi, so he may arrange his appearance in the proceedings. N.H.Q./K-79/S Leave granted.