2015 PLP 993 (SCMR)

ASIF SAEED KHAN KHOSA, J.

The allegation against Ahmed appellant was that on 20-11-1996 he and his co-accused namely Munir Ahmed had committed the murder of one Zaka Ullah inside the house of the appellant in the backdrop of dispute over return of some money statedly owed by the appellant to the deceased. After a full-dressed trial the appellant and his co-accused namely Munir Ahmed were found guilty of the murder and the learned trial court had sentenced both of them to death. The appeal filed by the appellant and his co-convict before the High Court had failed and the sentences of death passed against them were confirmed. We are informed that Criminal Petition No. 23 of 2006 filed by Munir Ahmed co-convict before this Court had been dismissed on 14-2-2006 and a report received from the Superintendent of the concerned jail shows that the said Munir Ahmed convict was hanged to death on 12-8-2008.

2. We have heard the learned counsel for the parties at some length and have gone through the record of the case with their assistance. After arguing the matter at some length as far as the merits of the appellant's case are concerned the learned counsel for the appellant has submitted that he only prays for reduction of the appellant's sentence from death to imprisonment for life and in this connection he has referred to various circumstances available on the record indicating some mitigating factors. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has supported the impugned judgments passed by the learned courts below and has opposed the request made by the learned counsel for the appellant regarding reduction of the appellant's sentence.

3. We note that the worth and evidentiary value of different pieces of evidence relied upon by the prosecution against the present appellant and his co-convict namely Munir Ahmed had been attended to by Court while deciding Criminal Petition No. 23 of 2006 which pieces of evidence were found to be reliable and the conviction and sentence of the said co-convict had been upheld by this Court. In the case of the present appellant we have embarked upon the same exercise and have assessed and evaluated different pieces of evidence produced by the prosecution so as to bring the appellant's guilt home and we too have found that the prosecution had indeed succeeded in establishing its case against the appellant beyond reasonable doubt. In these circumstances we have found the learned counsel for the appellant to be justified in not seriously pressing this appeal on the merits of the appellant's case.

4. As regards the prayer made before us regarding reduction of the appellant's sentence from death to imprisonment for life we have gone through the record of the case from cover to cover and have found many factors which may react against the sentence of death passed against the appellant being maintained at such a late stage. In this connection we have observed that the occurrence in this case had taken place on 20-11-1996 but an FIR in that regard had been lodged with a delay of four long days without any plausible explanation for such delay. We have further noticed that before the learned trial Court the prosecution had failed to produce any eye-witness of the murder in issue and it had squarely relied upon some pieces of circumstantial evidence. After attending to the said pieces of evidence we have felt convinced that all those pieces of evidence did point towards the appellant's culpability but the motive set up by the prosecution had remained far from being established beyond reasonable doubt. Some prosecution witnesses had stated about the alleged motive but they had admitted before the learned trial Court in so many words that they had no personal knowledge about the alleged motive or the details thereof and all they knew was that there was some on-going dispute between the appellant and the deceased on the issue of an outstanding amount. This kind of evidence could hardly be accepted by any court of law to conclude that the motive set up by the prosecution had been proved by it to the satisfaction of the Court. It may be of some importance to mention here that the motive part of the case was not relevant to the case against Munir Ahmed co-convict at all and, thus, the absence of motive or failure of the prosecution to prove the motive could not have any bearing upon the question of guilt or even punishment of the said co-convict. Culpability of the said co-convict as well as his punishment had been determined by the learned courts below as well as by this Court on the strength of the prosecution's case against him based upon many other factors available on the record. Another important factor having a bearing upon the appellant's sentence is that the criminal case in hand had originated in the year 1996 and the appellant had been arrested in connection with this case soon after the occurrence and he is languishing behind the bars ever since. A report received from the Superintendent of the concerned jail shows that the appellant has already spent more than eighteen years in jail in connection with this case. It is but obvious that had the appellant been sentenced to imprisonment for life then after availing of the requisite remissions he would have served out that sentence by now. In the case of Khalid Iqbal v. Mirza Khan and another (PLD 2015 SC 50) this Court has declared that such a prolonged incarceration in a case of sentence of death may furnish a basis for reduction of the sentence of death to imprisonment for life if there are some other mitigating circumstances available on the record pointing towards such reduction of sentence. In the case in hand we have already observed that it was an unwitnessed occurrence and the motive set up by the prosecution had not been proved and the latter factor furnishes a valid basis on its own to convert a sentence of death to imprisonment for life on a capital charge.

5. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for an offence under section 302(b), P.P.C. recorded and upheld by the learned courts below but the same, is partly allowed to the extent of the appellant's sentence on that count of the charge which is reduced from death to imprisonment for life. The benefit under section 382- B, Cr.P.C. shall be extended to the appellant. We note that the learned trial court had also passed a sentence of fine of Rs. 50,000 against the appellant which was utterly unlawful and what could be done under section 544-A, Cr.P.C, was to order payment of compensation. The said aspect of the appellant's sentence is, therefore, modified and it is ordered that the appellant shall pay a sum of Rs. 50,000 to the heirs of the deceased by way of compensation and in default of payment thereof he shall undergo simple imprisonment for six months. We are also surprised to find that the learned trial court had also convicted the appellant for an offence under section 201, P.P.C. and had sentenced him to rigorous imprisonment for seven years and a fine of Rs.10,000 for the said offence and in default of payment of fine he was ordered to undergo simple imprisonment for three months. This Court has already clarified that the conviction for an offence under section 201, P.P.C. cannot simultaneously be recorded with a conviction for an offence under section 302, P.P.C. and a reference in this respect may be made to the case of Nasar Khan v. The State (2000 SCMR 130). In this view of the matter the appellant's conviction and sentence for the offence under section 201, P.P.C. are set aside. This appeal is disposed of in these terms. MH/A-10/SC Order accordingly.