2011 P Cr (PLP)

SHAHZADO SHAIKH, J.

Through this Criminal Miscellaneous No. 108/L of 2010, the petitioner Muhammad Ashraf alias Bhola seeks clarification of the sentence awarded and upheld by this Court vide judgment dated 6-4-2007 delivered in Criminal Appeal No.70/L of 2004 cum Murder Reference No.4/L of 2004, whereby conviction of the petitioner "on both the counts" was upheld, but death sentence was converted into imprisonment for life and fine of Rs. one lac was levied as compensation; in default whereof to further undergo 6 months imprisonment. However, benefit of section 382-B of the Code of Criminal Procedure was granted to the petitioner. The petitioner also prays that both the sentences be ordered to run concurrently.

2. We have heard learned counsel for the petitioner and learned D.P.-G. appearing on behalf of the State and have gone through the record available before us.

3. Before proceeding further, we would like to refer to the conviction and sentence awarded to him by the learned trial Court vide judgment dated 16-10-2002 by learned Additional Sessions Judge, Depalpur, whereby the petitioner was convicted under section 302(b) of the Pakistan Penal Code and sentenced to death. He was also convicted and sentenced to pay Rs.100,000 to the legal heirs of the deceased as provided under section 544-A of the Code of Criminal Procedure, in default whereof to further undergo 6 months' simple imprisonment. He was also convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377 of the Pakistan Penal Code and sentenced to life imprisonment R.I.

4. Learned counsel for the petitioner contends that the petitioner has already undergone agony of lengthy trial and has suffered a lot in the jail. It is further contended that after scanning the evidence; going through the entire record and hearing the parties at length, this Court (Federal Shariat Court) in the petition referred in para-1 above (judgment dated 6-4-2007 delivered in Criminal Appeal No.70/L of 2004 cum Murder Reference No.4/L of 2004), had come to the conclusion that it was not a fit case in which maximum sentence of death should be awarded to the petitioner, therefore, this Court converted the death sentence of the petitioner into life imprisonment. Now the petitioner pleads that it would be in the interest of justice if the judgment of this court dated 6-4-2007 to the extent of conviction and sentence of the petitioner on "two counts" is modified or clarified and the sentences of the petitioner are ordered to run concurrently. In support of his contention, he has placed reliance on a judgment titled as "Iftikhar Ahmad and another v. The State and others" reported in 2009 SCMR 1142.

5. On the other hand, learned D.P.-G. vehemently opposes this contention of learned counsel of the petitioner on the grounds that the petitioner has already been treated with a lenient view and his death sentence has already been converted into life imprisonment, therefore, he deserves no further leniency. He contends that conviction and sentences of the petitioner " on both the counts" viz under section 302(b) of the Pakistan Penal Code and 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with 377 of the Pakistan Penal Code be ordered to run consecutively.

6. We have given anxious consideration to the submission made by learned counsel for the parties and have also gone through the judgment of this Court dated 6-4-2007 delivered in Criminal Appeal No. 70/L of 2004 cum Murder Reference No.4/L of 2004.

7. In para 12 of the Judgment dated 6-4-2007, this court while referring to P.W.4 stated; "Dr. Khalid Hayat Bhatti in the course of his deposition stated that anus was patulous and funnel shaped :... " Dr.Khalid Hayat had further deposed; "... according to Chemical Examiner's report No.1,189/S, dated 10-6-2000 the swabs and shalwar were stained with semen and he further stated that on the basis of the report of the Chemical Examiner the Standing Medical Board was of the opinion that deceased was subjected to the act of sodomy." In para 13 of the judgment, the conclusion of this Court regarding committing carnal intercourse against the order of nature with Ehsan Ahmed deceased was "in the face of medical evidence, the factum of the commission of sodomy cannot be questioned". In para 14 of the judgment, in maintaining the conviction and sentence awarded by trial Court to the appellant Muhammad Ashraf alias Bhola, this Court had held; "we are of the view that the prosecution has proved its case against the appellant that he abducted the deceased, committed sodomy with him and then killed him". This Court therefore upheld "the impugned judgment and the conviction of the appellant on both the counts." This Court further held;" However, in view of the circumstantial nature of the evidence against the appellant we do not consider it a fit case in which the maximum sentence of death should be awarded and would therefore convert it into imprisonment for life. Direction to pay compensation of Rs. one lac and imprisonment for six months in default of its payment is maintained. Benefit under section 382-B, Cr.P.C. is also extended to the appellant".

8. The appellant/petitioner had already been convicted and sentenced by the learned trial Court under section 302(b) of the Pakistan Penal Code and 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377 of the Pakistan Penal Code as mentioned in para No. 1 supra. This Court vide judgment dated 6-4-2007 upheld the judgment of the learned trial Court and the conviction of the appellant on both the counts, life imprisonment under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377 of the Pakistan Penal Code. However, his death sentence has been converted into life imprisonment under section 302(b) of the Pakistan Penal Code. Since the sentences have not been specifically ordered to run concurrently, the same shall be treated "consecutively" as per judgment of this Court dated 6-4-2007.

9. This Court has been vested with review powers under Article 203-E(9) of the Constitution of Islamic Republic of Pakistan, 1973 read with Rule 31-A of the Federal Shariat Court (Procedure) Rules, 1981. There is no ground to interfere with earlier judgment of this Court.

10. In this view of the matter, we dismiss this Criminal Miscellaneous No. 108/L of 2010 accordingly. H.B.T./24/FSC Application dismissed.