2017 PLP 335 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Abdul Nabi appellant and his co-accused namely Ghulam Yasin had allegedly committed rape with one Razia, aged about seven years, at about 10.45 a.m. on 28.07.2000 in an empty plot situated in Kot Teekhan in the area of Police Station New Foujdari, District Shikarpur and the victim had died. The appellant was tried by an Anti-Terrorism Court whereas on account of his being a juvenile the appellant's co-accused namely Ghulam Yasin was tried by a Juvenile Court. We have been informed that the Juvenile Court had acquitted Ghulam Yasin accused vide judgment dated 28.01.2009 whereas the Anti-Terrorism Court had convicted the appellant for offences under section 302(a), P.P.C., section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(a) of the Anti-Terrorism Act, 1997 and for commission of all such offences the appellant was sentenced to death besides ordering him to pay compensation and fine which convictions and sentences of the appellant were later on upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 24.02.2011.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and also to consider the quantum of the appellant's sentences. We have noticed that before the High Court the only prayer made by the learned counsel for the present appellant was in respect of reduction of the appellant's sentences of death to imprisonment for life and even before this Court today the learned counsel for the appellant has submitted that he shall be satisfied if only the quantum of the appellant's sentences is considered by this Court in the backdrop of some peculiar circumstances of the case. As against that the learned Assistant Prosecutor-General, Sindh appearing for the State has submitted that the prosecution had succeeded in establishing the appellant's guilt to the hilt but as far as the question regarding reduction of the sentences of death passed against the appellant to imprisonment for life is concerned the said matter lies within the discretion of the Court which discretion is to be exercised keeping in view the peculiar circumstances of a given case.

3. After hearing the learned counsel for the parties and going through the record we have observed that the case in hand was not a case of terrorism but was a case of a private offence committed in secrecy. The "design" or "purpose" provided for by section 6 of the Anti-Terrorism Act, 1997 were non-existent in the present case and apparently there was no intention on the part of the appellant to create a sense of fear or insecurity in the public at large. Apart from that in view of the conclusions which are to follow in the later part of this judgment the case in hand was not a case of a gang-rape and, thus, even from that angle the Schedule to the Anti Terrorism Act, 1997 did not stand attracted to the present case. In this view of the matter we are of the considered opinion that the courts below were not justified in convicting and sentencing the appellant for the offence under section 7(a) of the Anti-Terrorism Act, 1997.

4. It is not the case of the prosecution that the appellant had made any confession before the trial court whereas the prosecution had only relied upon a confession statedly made by the appellant before a Magistrate under section 164, Cr.P.C. An offence under section 302(a), P.P.C. is attracted when a confession is made by an accused person before the court trying him for the relevant offence which was not the case in the present criminal case. The case against the appellant was, thus, squarely a case attracting section 302(b), P.P.C. and not section 302(a), P.P.C.

5. As already observed above, Ghulam Yasin co-accused had been acquitted by a Juvenile Court on 28.01.2009 which establishes that the case in hand was not a case of gang-rape and, therefore, the appellant's conviction and sentence for the offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are no longer sustainable and the same need to be substituted by his conviction and sentence for an offence under section 10(3) of the said Ordinance.

6. As regards the sentence of death passed against the appellant for the offence of murder we note that the medical evidence brought on the record through the statement made by Dr. Aneela Kumari (PW4) clearly sowed that the intention of the appellant was not to murder the victim but the only intention on his part was to commit rape with her. The medical evidence had established that death of the deceased had not been caused due to rape but because of shock and the cause of death was not asphyxia but pressure on the neck of the deceased which might have been occasioned because of an attempt made by the appellant to silence the victim rather than to kill her. Apart from that a co accused of the appellant namely Ghulam Yasin, attributed a role identical to that alleged against the appellant, has already been acquitted by the trial court and, thus, some doubts about the veracity of the prosecution's case have emerged which doubts may not be sufficient to acquit the appellant but the same may well be considered towards exercising caution in the matter of the appellant's sentence of death.

7. For what has been discussed above the conviction and sentence of the appellant for the offence under section 7(a) of the Anti-Terrorism Act, 1997 are set aside, the conviction of the appellant for the offence under section 10(4) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 is converted into his conviction for the offence under section 10(3) of the said Ordinance and his sentence for that offence is reduced to rigorous imprisonment for twenty-five years and the conviction of the appellant for the offence under section 302(a), P.P.C. is converted into his conviction for the offence under section 302(b), P.P.C. and his sentence for that offence is reduced to imprisonment for life. The order passed by the trial court regarding payment of compensation by the appellant to the heirs of the deceased is maintained but it is ordered that in default of payment of compensation he shall undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant and all his sentences of imprisonment shall run concurrently to each other. This appeal is disposed of in these terms. MWA/A-45/SC Order accordingly.