2018 PLP 397 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Muhammad Abbas appellant and some others had allegedly fired at and killed six persons namely Najam-ul-Hassan Najmi, lrshad Hussain, Shahid Hussain, Mushtaq Hussain, Munir Hussain and Sajid Hussain at about 03.55 a.m. on 09.08.1997 in a street in village Mondekey in the area of Police Station Khan Garh, District Muzaffargarh in furtherance of a sectarian dispute and for commission of the said offences the appellant and his co-accused were booked in case FIR No. 257 registered at the above mentioned Police Station during the ensuing morning. After a regular trial the appellant was convicted by the trial court on six counts of an offence under section 302(b), P.P.C. read with section 34, P.P.C. read with sections 6/7(i) of the Anti-Terrorism Act, 1997 and was sentenced to death on each count and to pay fine and compensation. The appellant challenged his convictions and sentences before the High Court through an appeal which was dismissed and his convictions and sentences recorded by the trial court were upheld and confirmed. Hence, the present appeal by leave of this Court granted on 29.04.2009.

2. Leave to appeal had been granted in this case in order to reappraise the evidence but at the outset the learned counsel for the appellant has submitted that in view of some peculiarities of this case he does not press this appeal on the merits of the appellant's case and he presses the same only to the extent of the sentences of death passed against the appellant which sentences, according to the learned counsel for the appellant, warrant reduction to imprisonment for life on each count as many mitigating circumstances are available towards such reduction of sentence. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has vehemently opposed the said request made by the learned counsel for the appellant.

3. As many as six persons sleeping in a street were done to death in this case in the backdrop of a sectarian dispute and after a detailed assessment of the evidence available on the record both the courts below had concurred in their conclusion regarding guilt of the appellant having been established beyond reasonable doubt and upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion concurrently reached by the courts below. As regards the sentences of death passed against the appellant we note that it had nowhere been alleged by any eye-witness that the appellant had actually fired at any of the deceased or had caused any injury to any person. Even the extra-judicial confession attributed to Shah Nawaz co-accused confirmed the said aspect of the matter as according to the same the appellant had merely accompanied his co-accused to the place of occurrence, he had remained present with a motorcycle at the spot and had not caused any injury to any person during the incident in issue. Although a firearm had allegedly been recovered from the custody of the appellant during the investigation yet the said firearm never stood connected with the alleged offences. We have been informed that the appellant had been arrested in connection with this case way back in the year 1997 and he has remained behind the bars ever since. In this view of the matter we have found that in terms of the role attributed to the appellant he did not deserve the maximum sentence provided for the offences in question.

4. For what has been discussed above this appeal is dismissed to the extent of the appellant's convictions on six counts of the charge under section 302(b), P.P.C. read with section 34, P.P.C. read with sections 6/7(i) of the Anti-Terrorism Act, 1997 but the same is partly allowed to the extent of his sentences of death on each such count which sentences are converted into sentences of imprisonment for life on each count. We have found that the fines imposed upon the appellant on each of the relevant counts are excessive and even the sentences of imprisonment to be undergone in default of payment of fine are on the higher side. Likewise, the order passed by the trial court regarding payment of compensation by the appellant to the heirs of each deceased has also been found by us to be inappropriate and, thus, the said aspects of this case warrant interference by this Court. It is ordered that on each of the six counts of the above mentioned charge the appellant shall pay a fine of Rs. 50,000/- (Rupees fifty thousand only) or in default of payment thereof he shall undergo simple imprisonment for six months on each count and similarly he is ordered to pay compensation of Rs.50,000/- (Rupees fifty thousand only) to the heirs of each deceased or in default of payment thereof he shall undergo simple imprisonment for six months on each count. All the sentences of imprisonment passed against the appellant shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to him. This appeal is disposed of in these terms. MWA/M-1/SC Order accordingly.