2003 P Cr (PLP)

SYED SAKHI HUSSAIN BUKHARI J.

This judgment shall dispose of Murder Reference No.25 of 1991 and Criminal Appeal No.67 out of the same judgment, dated 30th of June, 1991, passed by the Learned Additional Sessions Judge-1, Bahawalnagar, whereby, he convicted and sentenced Muhammad Yasin to suffer death under section 302, P.P.C. for the murder of his real brother, Yamin and was also sentenced to death under the said provision of law for the murder of his real mother Mst. Azizan and in each case he was also fined Rs. 20,000 half of which payable to the heirs of each deceased and in case of default in each case he was to further undergo R.I. for 4 years.

2. The prosecution story as appearing from the testimony of Mumtaz Ali, complainant (P.W.8) is that he resided in village Mohib Ali. Mst. Azizan deceased was his elder sister who was married with Koma Dan. She had three issues, namely, Yasin accused, Yamin deceased and Afsari Begum. About eight years prior to this occurrence Yasin accused had gone to Saudi Arabia and he had been sending money from there to his brother Yamin deceased. About three years prior to this occurrence Yasin accused came back from, Saudi Arabia and demanded his money from Yamin and `Punchayat' was convened in this connection and Yamin deceased told that he had not misappropriated the money of accused. Yamin was issueless. He told the accused that he had purchased one plot and had constructed a house for him. He further told that he married his sister Afsari Begum. Yasin accused was not satisfied with the answer of the deceased. Yamin and he had declared that he would kill him (Yamin). Mst. Azizan, deceased resided with her son Yamin, deceased. Yasin accused and Yamin deceased were residing separately in different houses but the same were contiguous to each other. Afsari Begum was living with her husband in Karam Pur, District Vehari. On 6-9-1990, at about 11-30 p.m. `Barat' of his nephew Intizar Hussain was about to proceed to Gojera. Yamin deceased. Bashir P. W. Riasat Ali P. W. and complainant were going towards the place where bus was parked and when they reached near the house of one Abbas. Yasin accused was present there. He raised Lalkara that he would teach a lesson for usurping his money. He was armed with double-barrel gun. He fired at Yamin which hit him on his chest and he fell on the ground. Yasin accused again fired at him. Then he rushed inside the house of Yamin where his mother was sitting. They also went behind the accused. His mother Mst. Azizan, deceased was sitting on a cot and Yasin fired at her which hit her on right side of the chest. The accused had fired at both the deceased in their presence. They tried to apprehend the accused but he threatened them with dire consequences. Yamin and Mst. Azizan succumbed to the injuries at the spot. After leaving Riasat Ali and Bashir P.Ws. at the spot he went to the Police Station where he lodged F.LR. (Exh.P.G.). On his statement, case was registered against the accused and after usual investigation he was challaned.

3. The accused appeared before trial Court and charge under section 302, P.P.C. was framed against him to which he pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. The prosecution examined 11 witnesses in all. The accused was examined under section 342, Cr.P.C. He examined two witnesses in support of his case. After hearing the parties, learned Additional Sessions Judge convicted Muhammad Yasin under section 302, P.P.C. on two counts and sentenced him to death on two counts and ordered to pay the compensation to the legal heirs of the deceased.

4. The appeal brought by the appellant and murder reference were decided by this Court vide judgment, dated 21-9-1993. It was found that trial Court has rightly convicted and sentenced the appellant but sentences of death were not confirmed and the same were converted to sentences of life imprisonment in each case. The appellant and Mst. Bushra and others filed appeals before the Honourable Supreme Court of Pakistan which were decided vide order, dated 17-1-2000. Criminal Appeal No.201 of 1994 was accepted judgment passed by this Court was set aside, case was remanded for proceeding afresh and Criminal Appeal No.67 of 1991 and Murder Reference No.25 of 1991 were to be decided afresh.

5. We have heard the arguments of the learned council for the parties and perused the record. Learned counsel for the appellant has not challenged the impugned judgment on merits. He, however, has prayed that sentence of death be converted to imprisonment for life. He has prayed that in awarding sentence the Court should take into consideration the expectancy of life ensured to the appellant on account of conviction previously recorded by this Court whereby only imprisonment for life was awarded to him (appellant). He contended that prosecution has failed to prove motive as alleged, therefore, in the circumstances of the case, it is a fit case for reducing the sentence.

6. Learned counsel for the complainant and State have opposed the submission made by the learned counsel for the appellant.

7. We have considered the submission made by the learned counsel for the parties and perused the record carefully. The occurrence took place on 6-9-1990. The learned trial Court decided this case on 30-6-1991, whereas, appeal brought by the appellant was decided on 21-9-1993 and sentence of death was converted to imprisonment for life.

8. Both eye-witnesses have fully supported the prosecution case. There is nothing on record to disbelieve their testimony. As such, learned Trial Court has rightly convicted the appellant. Criminal Appeal No.67 of 1991 and Murder Reference No.25 were decided by a learned Division Bench of this Court vide judgment, dated 21-9-1993. This Court vide that judgment refrained from awarding death sentence to the appellant. That judgment, was assailed before august apex Court in Criminal Appeals Nos.201 and 202 of 1994 which were decided on 17-1 2000. Thus practically for a period of more than 9 years the appellant entertained expectancy of life and freedom from being sent to gallows following award of lesser punishment. In fact the appellant appears to have undergone a substantial part of the punishment. Taking all pros and cons of the matter into consideration and particularly expectancy of life entertained by the appellant, during a long period of about 9 years, we also refrain from awarding the capital punishment to the appellant. We are of the view that the ends of justice will be sufficiently met if the conviction and sentence originally awarded vide this Court's judgment, dated 21-9-1993 were restored. We order accordingly. The sentences of fine are maintained and the same if recovered shall be paid to the legal heirs of the deceased and in default of payment of fine, the appellant shall further suffer imprisonment for four years. He would get benefit of section 382-B, Cr.P.C. With the above modification, the Criminal Appeal No.67 of 1991, brought by Yasin, appellant, is dismissed and death sentence is not confirmed as being converted into imprisonment for life. Disposed of accordingly. H.B.T./M-1855/L Order accordingly.