1999 PLP 2061 (SCMR)

IRSHAD HASAN KHAN, J.

This direct appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the judgment dated 29-11-1995, passed by Lahore High Court, Lahore in Criminal Appeal No.952 of 1988 and Criminal Revision No.522 of 1988.

2. On 25-5-1988, a learned Additional Sessions Judge, Lahore convicted the appellant on the charge under section 302, P:P.C. for causing the death of one Abdus Samad Khan, deceased and sentenced him to imprisonment for life with a fine of Rs.5,000 or in default to suffer further R.L., for two years. Compensation of Rs.25,000 was also to be paid to the legal heirs of the 'deceased, in default whereof to undergo further R.I. for six months. He was also convicted under section 392/34, P.P.C. and sentenced to 7 years R.I. and a fine of Rs.2,060 or in default thereof to further undergo one year R.I. The appeal preferred by the appellant was dismissed and his conviction under section 302/392, P.P.C. was maintained. However, Criminal Revision filed by the complainant Syed Muhammad Aslam Shah, respondent No.1 herein was allowed and the appellant's sentence of life imprisonment, recorded under section 302, P.P.C., by the trial Court, was enhanced to death sentence. The remaining sentences imposed by the trial Court under section 302/34, P.P.C. were maintained with all consequences.

3. We have heard Mr. Muhammad Saleem Shahnazi, learned Advocate Supreme Court for the appellant and Mr. R.A. Awan, learned counsel for respondent No. 1,

4. Learned counsel for the appellant placed reliance on somewhat identical case of Hayat and another v. The State (Suo Motu Cr. Review Petition No.22 of 1993 in Criminal Appeal No.248 of 1990), wherein a Full Bench of this Court vide judgment dated 20-2-1994, relying on an earlier judgment of this Court in the case of Muhammad Afzal. alias Baggoo v. State (Criminal Appeal No. 15 of 1991), held that the award of the sentence of death to the appellants therein, whose trial had concluded much before 6-12-1988, as in the instant case, was not appropriate even on being found guilty by the High Court of murder of one or the other deceased after 6-12-1988. It would be advantageous to reproduce paragraphs 2 and 3 of the judgment passed in Hayat (supra), which read thus: -- "

2. It is stated in the application that if on the conclusion of the trial the learned Additional Sessions Judge had sentenced them to death they would have become eligible to the commutation of the sentence to imprisonment for life under the amnesty granted by the President on 6-12-1988; they should not, therefore, be made to suffer just for the reason that the trial Court did not elect, to impose the death sentence on them; if the High Court had kept this factor into consideration it would not have enhanced their sentences. "

3. The contention raised by the petitioners through this jail application has die support of a judgment of this Court in the case of Muhammad Afzal alias Baggoo v. State (Criminal Appeal No. 15 of 1991) wherein while dealing with a similar question Nasim Hasan Shah, J. (now C.J.) observed: 'Now when in all cases wherein the accused who were convicted under section 302, P.P.C. and sentenced to death before 6-12-1988 can avail of the amnesty and obtain commutation in their sentences of imprisonment for life; it is only appropriate that the High Court and the Supreme Court should also not award sentences of death in such cases i.e. cases which were disposed of by the Sessions Court before 6-12-1988. In this view of the matter, we hold that the award of the sentence of death to the appellants whose trial had concluded much before 6-12-1988 was not appropriate even on being found guilty by the High Court of murder of one or the other deceased after 6-12-1988. Hence, the sentences of death awarded by the High Court on 19-11-1990 on the appellants are liable to be reduced to that of life imprisonment."

5. Respectfully following the rule laid down in the above precedent cases it is not necessary to go into further details of the case. In consequence, the sentence to death awarded to the appellant shall be reduced to that of imprisonment for life. This reduction shall not, however, affect the sentence of fine imposed upon him.

6. With the above observation, the appeal is allowed and the impugned order of the High Court is se t aside to the extent indicated above. N.H.Q./M-328/S ??????????????????????????????????????????????????????????????????? ??????????? Sentence reduced.