2002 SCMR 93 (PLP)

RANA BHAGWANDAS, J.

Both the appeals arise out of a single judgment of the Lahore High Court and leave to appeal was granted by a common order of this Court. These shall be disposed of through this judgment.

2. Facts leading to the episode, culminating in unfortunate murder of deceased Bashir Ahmad, appear to be that on 5-2-1992 at 9.10 p.m. a case under section 302/34, P.P.C. was registered on the written application of complainant Nazir Ahmad at Police Station Civil Lines, Gujrat against two unknown persons Appellant-Bahadur Ali (In Criminal Appeal No.358 of 1999) was arrested on 9-9-1992. His identification parade was held on 19-9-1992 and, at his pointation, Klashnikov was recovered from his possession. Co-accused Muhammad Aslam (respondent No.3 in Criminal Appeal No.359 of 1999) was confined in District Jail, Gujrat, in connection with another murder case and his identification parade in the jail premises was arranged on 16-1-1993, on the application of Muhammad Islam S.H.O., Civil Lines dated 4-1-1993.

3. In support of its case prosecution examined Dr. Nusrat Riaz P.W.1, Farman Ali P.W.2, Mukhtar Ahmad P.W.3, Liaqat Ali, Head Constable P.W.4, Mehdi Khan, Constable P.W.5, Akhtar Naqash, Draftsman P.W.6, Tariq Mehmood, Magistrate First Class P.W.7, Nazir Ahmad P.W.8, Muhammad Musa Raza P.W.9. Feroze Din, S.I.P., P.W.10, Muhammad Islam S. H. O., P. W.11 and Riaz Ahmad Shad, Magistrate First Class P. W.12. Both the accused denied prosecution allegation against them in their respective statements under section 342, Cr.P.C.

4. After trial, Special Court for Suppression of Terrorist Activities, Gujranwala, through its judgment dated 24-2-1994, convicted Bahadur Ali under section 302(b), P.P.C., and sentenced him to death while Muhammad Aslam alias Achhu was convicted and sentenced to imprisonment for life. Both the accused were directed to pay compensation of Rs.50,000 each to the legal heirs of the deceased or to suffer R.I. for 2 years in default.

5. On appeal, a Division Bench of the Lahore High Court, vide its judgment, dated 19-2-1998, maintained conviction of Bahadur Ali (appellant in Criminal Appeal No.358 of 1999) but altered his sentence from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. co-accused Muhammad Aslam alias Achhu (respondent No.3 in Criminal Appeal No.359 of 1999) was, however, acquitted by extending benefit of doubt. Criminal Petition for Leave to Appeal No.145-L of 1998 was moved by Bahadur Ali to challenge his conviction and sentence, whereas Criminal Petition for Leave to Appeal No.158-L of 1998 was filed by complainant-Nazir Ahmad against acquittal of Muhammad Aslam and for enhancement of sentence of Bahadur Ali. Leave to appeal was granted in both the petitions to reappraise the evidence in order to meet the ends of justice.

6. We have heard Messrs Muhammad Munir Piracha, Khadim Hussain Qaiser, Chaudhry Arshad Ali and Syed Zulfiqar Ali Bukhari, learned Advocate Supreme Courts for the parties and, with their assistance, perused the record carefully.

7. Adverting to the appeal filed by Bahadur Ali assailing his conviction and sentence, it may be observed that in addition to the sentence of life imprisonment for commission of Qatl-i-Amd, he was also tried on the charge of possessing of Klashnikov without any licence in terms of section 13 of the Arms Ordinance, 1965 and sentenced to R.I. for five years and fine of Rs.20,

000. On an earlier occasion, when these appeals came up for hearing a report was called for from jail authorities whether said Bahadur Ali was still confined in jail or served out his sentence of life imprisonment. Non-bailable warrant of arrest was issued against respondent-Muhammad Aslam as he had not surrendered before the Court. Through letter dated 2-4-2001, Superintendent, District Jail Sialkot reported that Bahadur Ali had served out his sentence of life imprisonment but he was undergoing sentence of imprisonment in lieu of fine (in fact it was sentence for non-payment of compensation) and the sentence of imprisonment under the Arms Ordinance. Today, learned counsel for Bahadur Ali appellant as well as Nazir Ahmad complainant stated at the Bar that Bahadur Ali .has since been released from jail custody after serving out his entire sentence, presumably, after availing of all remissions and concessions allowed by the Government- from time to time and by the jail authorities. Respondent Muhammad Aslam has been produced in custody before the Court.

8. Having heard learned counsel for the parties we are of the considered view that since appellant-Bahadur Ali has served out a legal sentence on the charge of Qatl--i-Amad, his appeal as against conviction is disposed of as not pressed. On legal plane it has been the consistent view of this Court that on the charge of Qatl-i-Amd, if a convict has served out a legal sentence of imprisonment for life, appeal seeking enhancement of his sentence to death could not be legally heard as the enhanced sentence, if recorded, would be hit by the doctrine of double jeopardy. It is well-settled that as per mandate of Article 13 of the Constitution, no person shall be prosecuted or punished for the same offence (pore than once; or shall, when accused of an offence, be compelled to be a witness against himself. However, we find a serious flaw in the sentence imposed upon him in lieu of compensation of Rs.50,

000. It may be pertinent to note that trial Court awarded the sentence of compensation of Rs.50,000 and directed that in default of payment the convict shall suffer R.I. for two years. In appeal, while maintaining the conviction of Bahadur Ali and altering his sentence quite inadvertently High Court has also maintained the sentence of imprisonment in lieu of non-payment of compensation. The award of R.I. for two years, in default of payment of compensation, is patently illegal and against the Statute as subsection (2) of section 544-A, Cr.P.C., unequivocally provides that the compensation payable under subsection (1) shall be recoverable as arrears of land revenue and the Court may further order that in default of payment of recovery as aforesaid, the person ordered to pay compensation shall suffer imprisonment for a period not exceeding six months. We would, therefore, while disposing of Criminal Appeal No.358 of 1999, set aside the sentence of R.I. for two years and modify it by simple imprisonment for six months.

9. Reverting to Criminal Appeal No.359 of 1999 at the behest of complainant Nazir Ahmad, Mr. Khadim Hussain Qaiser, learned Advocate Supreme Court as against Bahadur Ali did not press his prayer for enhancement of sentence of life imprisonment to death but he pressed for enhancement of compensation payable to the legal heirs of the deceased. In support of his submission, learned counsel referred to Razia Begum v. Jahangir reported in PLD 1982 SC 302, in which this Court while refraining from awarding death sentence of convict, although he deserved it, imposed a fine of Rs.25,000 as enhancement of sentence. It was directed that on realization the amount shall be paid as compensation to the hairs of deceased under section 544-A, Cr.P.C. In the facts and circumstances of the case, while we are not inclined to enhance the sentence of life imprisonment in view of release of the convict but would enhance the amount of compensation from Rs.50,000 to Rs.1,00,000 which shall be recovered by way of arrears of land revenue and paid to the legal heirs of the deceased. Reference may be made to the precedent reported as Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452) relevant page 461.

10. As regards Muhammad Aslam alias Achhu, there is hardly any evidence connecting him with the commission of the crime. His liability, if at all any, would arise by reason of section 34, P.P.C. but neither he was named in the F.I.R. nor assigned any active role in the commission of the crime in that three fire-arm shots were attributed to Bahadur Ali. Even identification parade in respect of this accused was held after 11-1/2 months without any justification. Undisputedly, no weapon was recovered at his instance and he was already confined in judicial custody when S.H.O. arrested him in this case, it being a blind, F.I.R. In his statement under section 342, Cr.P.C., Muhammad Aslam, apart from denying the allegation against him, explained his position as follows:-- Muhammad Islam, Inspector/S.H.O. Civil Lines, Gujrat kept me .in custody during the investigation of this case without showing my, formal arrest, upon which may relatives lodged a complaint with the higher authorities as a result of which Muhammad Islam, Inspector was transferred and was also put under suspension for some time. He managed his re-appointment in the said Police Station. Later on, he took the investigation of this case and falsely involved me in this case, due to his personal grudge."

11. In the absence of any supporting evidence, coupled with explanation of Muhammad Aslam alias Achhu, we are inclined to the view the impugned judgment acquitting this respondent of the charge does not suffer from any legal infirmity and indeed does not warrant any interference. Consequently, appeal as against acquittal of respondent-Muhammad Aslam alias Achhu is dismissed. He is ordered to be set at liberty forthwith unless required to be detained in any other case. N.H.Q.B-50/S Order accordingly