2000SCMR 1818 (PLP)

MIAN MUHAMMAD AJMAL, J.

This appeal by leave of this Court is directed against the judgment of the Lahore High Court, Lahore, dated 10-7-1994, whereby the conviction and sentence of both the appellants was maintained and their appeal was dismissed.

2. Sultan son of Hayat and Allah Bakhsh son of Allah Yar, the present appellants alongwith Muhammad Nawaz son of Muhammad Hayat, Mutali and Amir sons of Salehon, Allah Ditta son of Muhammad, Riaz son of Allah Bakhsh, Faizullah alias Kaka Balli, Sarfraz alias Sabbu son of Khan and Allah ditta son of Allah Yar were prosecuted in case F.I.R. No.149 of 1989, dated 15-10-1989, Police Station Massan, District Jhang under section 302/307/148/149/120-B, P.P.C. for the murder of Ahmad Hayat and attempted murder of Muhammad Ismail and Sher Muhammad P.Ws. The, motive, as alleged, was that in the year 1974, three persons from the accused side were killed, for which the complainant party was charged but they were acquitted of the charge by the Court. The appellants and their co accused were tried by Additional Sessions Judge, Jhang, who vide his judgment, dated 20-2-1991 acquitted Muhammad Riaz, Muhammad Nawaz Faizullah alias Kaka Balli, Sarfraz alias Sabbu and Allah Ditta son of Allah Yar of the charges by giving them the benefit of doubt. Sultan, Mutali and Amir were convicted under section 302/149, P.P.C. and sentenced to death and fine of Rs.20.000 each or in default to suffer two years' imprisonment each. They were also convicted under section 307/149, P.P.C. and sentenced to 10 years' R.I. and a fine of Rs.5,000 each on two counts or imdefault to suffer imprisonment for one year each on two counts. Allah Bakhsh and Allah Ditta son of Muhammad were convicted under section 302/149, P.P.C. and sentenced to imprisonment for life with fine of Rs.30,000 each or in default to suffer imprisonment for three years. They were also convicted under section 307/149, P.P.C. and sentenced to 10 years' R.I. with fine of Rs.5,000 each on two counts or in default to undergo imprisonment for one year each on two counts. Sultan, Allah Bakhsh, Mutali and Allah Ditta son of Muhammad were also convicted under section 148, P.P.C. and sentenced to undergo three years' R.I. each. Half of the fine under section

302. P.R.C., on recovery, was to be paid to the legal heirs of the deceased and under section 307, P.P.C. to Sher Muhammad and Muhammad Ismail injured in equal shares. On appea~, the learned Division Bench of the Lahore High Court vide its judgment impugned herein, acquitted Mutali, Amir and Allah Ditta son of Muhammad of the charges by giving them the benefit of doubt. The learned Bench, however, dismissed the appeal of the present appellants holding that the eye-witnesses account against them could be relied upon because their evidence has been corroborated by the recovery of fire arms at their instance which matched with the empties recovered from the spot. Their conviction under section 307, P.P.C. was also maintained but the sentence was reduced from 10 years' R.I. to 7 years' R.I. on each count. However, their conviction and sentence under section 148, P.P.C. was set aside. The benefit of section 382-B, Cr.P.C. was not extended to Allah Bakhsh, appellant as he was not found entitled to it. Leave was granted to the appellants to examine the effect of non-examination of the police official who was handed over the spent cartridges for delivery to the Forensic Laboratory A to see whether the empties delivered at the Laboratory were the same which were found at the scene of occurrence or had been tampered with.

3. Learned counsel for the appellants contended that out of 10 accused, 8 have been acquitted, therefore, on the same evidence the conviction of the present appellants is not sustainable. He emphasised that no distinction can be drawn between the case of Sultan appellant and Riaz acquitted accused, for, the guns recovered at their instance matched with the empties allegedly recovered from the scene of occurrence. Since Riaz accused has been acquitted, therefore, Sultan is also entitled to acquittal. He submitted that in F.I.R. one Muhammad Nawaz was charged alongwith others but later on, in his supplementary statement the complainant, substituted Muhammad Riaz for muhhammad Nawaz who has been acquitted. The substitution suggests that complainant had falsely charged Muhammad NAWaz, who was later on substituted by Muhammad Riaz, therefore, no credence could be attached to the prosecution and no conviction could be recorded. His third point, on which the leave had been granted, was stressed most, submitting that the empties were handed over to Muhammad Hafiz, Constable for delivery to the Forensic Laboratory but he was abandoned by the prosecution on the ground that he had been won over. He referred to the statement of Ahmad Khan, P.W.5 wherein he has stated that a parcel containing empty cartridges was handed over to Muhammad Hafiz, Constable No. 188 on 3-11-1989 for onward transmission to the Forensic Laboratory, Lahore but, according to the Expert's Report Exh.PCC, the same was delivered in that office on'/-11-1989. There is no explanation as to what happened in-between 3-11-1989 and 7-11-1989. This unexplained delay in the delivery of the parcel containing spent cartridges shatters the prosecution case and thus the appellants are entitled to be extended the benefit of doubt. In the alternative, the learned counsel argued that Sultan accused should not have been awarded death sentence in the circumstances of the case as he was younger in age than Allah Bakhsh. therefore, the possibility is that he might have acted under the influence of the elders. In so far as accused Allah Bakhsh is concerned, learned counsel argued that the provisions of section 382-B, Cr.P.C, are mandatory in nature, therefore he was entitled to the benefit thereof as he was neither hardened nor desperate criminal, for, there is no record to the effect against him.

4. On the other, hand, learned Counsel for the State vehemently argued that leave was granted only to examine the effect of non-examination of Muhammad Hafiz, Constable who was given the parcel of spent cartridges for delivery to the Forensic Laboratory. He argued that Muhammad Ismail and Sher Muhammad P. Ws. were severely injured in the incident and their testimony could not be excluded front consideration as their presence on the scene of occurrence stood established. He submitted that all the accused were charged for unlawful assembly, therefore; act of one should have been deemed to be the act of all, hence, the accused when acted for common object, were entitled to be convicted and sentenced. He submitted that Allah Bakhsh was arrested on 6-11-1989 i.e. after 26 days of the registration of F.I.R. and Sultan was arrested on 7-8-1990 i.e. after about 10 months. Since the evidence brought on record was corroborated by the recovery of guns of both the accused and in case of Sultan it is further corroborated by his long abscondence, therefore, both the appellants were rightly convicted and sentenced and it warrants no interference.

5. We have heard the learned counsel for the parties and perused the record with their assistance. Leave was granted to examine whether non examination of Muhammad Hafiz, Constable could adversely affect prosecution case as it cannot be said with certainty that the cartridges delivered at the Laboratory were the same which were found from the scene of the occurrence and they were not tampered with. No doubt, according to Ahmad Khan P.W.5, the parcel containing empties was given to Constable Muhammad Hafiz on 3-11-1998 for onward delivery to Forensic Laboratory which according to the report of the Expert, was received there on 7-11-1989 yet we are of the view that delayed delivery per se would not adversely affect the prosecution case. According to the Expert Report, the parcel was p received in sealed condition and there is nothing on the record to suggest that it was tampered with or manipulated and in such circumstances, we observe that though the conduct of Muhammad Hafiz, Constable for delayed delivery of the parcel in the Laboratory is deplorable, yet we hold that the same having not been manipulated or tampered with, no adverse inference could be drawn against the prosecution. As far as the contention of the learned counsel for the appellants that the evidence having been disbelieved qua majority of the accused, same evidence could not be relied upon against the appellants, has no force. The case of the appellants is distinguishable from the case of the acquitted accused, for, the evidence against the appellants was fully corroborated by the recovery of the crime weapons at their instance which matched with the crime empties recovered from the spot. The unexplained abscondence of sultan appellant lends further corroboration against him. The learned High Court after thorough examination of the evidence oti the record, rightly maintained the conviction of the appellants with which, we are not inclined to interfere. In so far as the capital, punishment of Sultan is concerned, we agree with the contention of the learned counsel for the appellant that he being younger in age might have acted under the influence of the elders. It is now settled law that capital punishment is normally not awarded to the younger where possibility is that he might have acted under the influence of the elders. Reference can be made to Liaqat Shah v. The State (1985 SCMR 1415), Ziaullah v. The State (1993 SCMR 155) and Tariq and 2 others v. The State (1995 SCMR 168). In view of the law laid down in the aforesaid authorities, we while dismissing the appeal of Sultan alter his sentence from death to life imprisonment.

6. With regard to benefit of section 382-B, Cr.P.C., suffice would be to say that it is mandatory in nature and its object is to compensate the convict for the delay in the conclusion of his trial not attributable to him. The Court while awarding sentences are required to consciously apply their G mind whether benefit of section 382-B, Cr.P.C. be allowed or declined to convicts. Unless there are exceptional circumstances, the benefit of section 382-B, Cr.P.C. is normally allowed to the convicts. Reference is made to Javed Iqbal v. The State (1998 SCMR 1539). We do not find any exceptional circumstances in this case, therefore, we allow the benefit of section 382-B, Cr.P.C. to both the appellants. This appeal is dismissed with the above modifications. M.B.A./S-39/S Order accordingly,