2013 PLP 1618 (SCMR)

AMIR HANI MUSLIM, J.

These appeals, by leave of the Court, are directed against judgment dated 24-5-2005 of the Peshawar High Court, Abbottabad Bench, whereby death sentence awarded to appellant Zahoor Ahmed was confirmed whereas the death sentence of appellant Ghulam Yousaf was commuted to life imprisonment.

2. Facts as disclosed in the F.I.R are that the complainant lodged a report with the police that on 18-3-2000, at 10-00 p.m. he was present in the house of his deceased brother Muhammad Akbar when Ghulam Yousaf, Muhammad Rafique, Fakhar Zaman, Arshad, Zahoor Ahmed son of Gulab Khan, Bashir Zaman son of Shadi Khan, Qamar Zaman, Khalil and Waheed Ahmed, duly armed with firearms entered in the house and stated that they would not spare any one from the family of Akbar deceased and they would set the house on fire. The complainant, Gulfraz and Muhammad Ayub beseeched them not to do this, but the accused persons told them that if they want to live, they should leave the place. The accused persons, within the sight of the complainant, Gulfraz and. Muhammad Ayub, put all the family members of deceased Muhammad Akbar in a room and chained the door. Accused Zahoor Ahmed set a corner of the house on fire with a lighter and then unchained the door and started firing on the inmates, due to which the brother of the complainant Muhammad Akbar succumbed to the injuries at the spot. Mst. Zarina wife of Muhammad Akbar came out of the room to save her life, but she was also hit and succumbed to the injuries. Two buffalos also died due to firing which were in other room of the house. In the meanwhile, Mst. Irshad Bibi, sister of the accused Ghulain Yousaf attracted to the place of occurrence due to hue and cry to save the inmates, but she also got injured at the hands of the accused and succumbed to the injuries. Then the accused killed Muhammad Bashir, Muhammad Akbar, Mst. Abida and Mst. Shamim Bibi by giving them butt blows, kicks and fists. After this, the accused begun to beat the minors Mst. Ruqqia Bibi, Mst Noreen Bibi and Muhammad Asif by putting them and striking against the floor, due to which they also died. Siddique and Mst. Irshad Bibi saved their lives by hiding under the cots. The accused took the corpse of their sister and went away. The complainant stated that he along with Gulfraz and Ayub had seen the occurrence in the light of lantern and moonlight and had saved their lives by running away.

3. Motive behind the occurrence was that Mst. Tahira alias Goga daughter of Saeed, the niece of Ghulam Yousaf, had relations with Siddique P.W. and because of that the accused persons in furtherance of their common intention had killed 9 persons, two buffalos and set on fire two houses. On this Murasila F.I.R. No.20 was registered on 19-3-2000 at 6-00 a.m. under sections 302/324/142/149//429 and 436, P.P.C. at Police Station Nara, District Abbottabad.

4. The accused were tried by the Additional District and Sessions Judge Abbottabad. Charge was framed against 9 persons out of which 3 were acquitted by giving them the benefit of doubt while remaining 6 were convicted and sentenced as under:-- (i) Under sections 302(b)/149, P.P.C. death on 9 counts. (ii) Under section 429/149, P.P.C. 3 years' R.I. each, (iii) Under section 436/149, P.P.C. 7 years' R.I. each. (iv) Under section 148 read with 149, P.P.C. 1 year's R.I. each. All the sentences of imprisonment were ordered to run concurrently. The appellants were further directed to pay Rs.2,00,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to suffer S.I. for 6 months each. The appellants along with co-convicts filed Criminal Appeal No.208 of 2003 against their conviction and sentences. The trial Court made Murder Reference for confirmation and otherwise of the death sentence of the convicts. The complainant also filed Criminal Appeal No.217 of 2003 against the acquittal of three accused seeking their conviction. He also preferred Criminal Revision No.35 of 2003 for enhancement of compensation.

5. The learned High Court acquitted Muhammad Rafique, Fakhar Zaman, Arshad and Khalilur Rehman by extending them the benefit of the doubt. Death sentence on 8 counts of appellant Zahoor Ahmed (in Criminal Appeal No.145 of 2009) along with sentences of imprisonment awarded by the trial Court were confirmed. Murder Reference against him was answered in affirmative. Death sentence of Ghulam Yousaf appellant (in Criminal Appeal No.246 of 2009) was, however, commuted to life imprisonment on 8 counts. His conviction and sentences awarded under sections 436, 34, 429 read with section 34, P.P.C. were maintained. His conviction and sentence under sections 148/149, P.P.C. was set aside. The amount of compensation under section 544-A, Cr.P.C. and sentence in default of payment was maintained. Criminal appeal of the appellant against. acquittal of the three accused and criminal revision for enhancement of amount of compensation were also dismissed.

6. The appellants filed Jail Petitions Nos.140 and 186 of 2005 respectively before this Court when on 15-6-2009, leave to appeal was granted to re-appraise the evidence on record for safe administration of criminal justice. Hence these appeals.

7. The learned counsel for the appellant Zahoor Ahmed has contended that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and the eye-witnesses were closely related being interested and their evidence ought to have been discarded. He contended that admission of a convict in his statement under section 342, Cr.P.C. cannot be made a ground to award the sentence. The statement is either accepted as a whole or discarded as a whole.

8. On the other hand, the learned counsel for the State has supported the impugned judgment.

9. We have heard the learned counsel and have perused the record. Even if the contentions of the learned counsel are accepted, the complainant's evidence cannot be brushed aside on this sole ground, as common intention of the appellant to kill the deceased was there, therefore, this cannot be made a ground to set at naught the findings of the trial Court and the High Court against the appellant. We, however, are of the view that the High Court has proceeded on the premise that the statement of the convict under section 342, Cr.P.C. was sufficient to warrant interference. The learned High Court has not recorded any finding as to whether the prosecution has proved the case against the convict. This itself is a ground which could warrant reduction of sentence from death to imprisonment for life. We, therefore, after perusal of the evidence are of the view that the capital punishment in such like cases can be reduced. Accordingly, while partly allowing the Criminal Appeal No.245 of 2009 commute the death sentence of the appellant to life imprisonment on each count. All other sentences awarded by the trial Court and upheld by the High Court are maintained, which shall run concurrently. The benefit of section 382-B, Cr.P.C. is extended to the appellant. The amounts of compensation and sentence of imprisonment in default of payment is also maintained.

10. As far as Criminal Appeal No.246 of 2009 is concerned, the learned counsel has confined his arguments to the extent that the sentences of imprisonment awarded to the appellant be ordered to run concurrently.

11. We have gone through the evidence. Since both the appeals emanate out of the same F.I.R., therefore, the sentences ought to have been ordered to run concurrently. We, accordingly, while dismissing the appeal of the appellant Ghulam Yousaf, order that the sentences awarded to the appellant by the trial Court and upheld by the learned High Court are maintained, which shall run concurrently, with benefit of section 382-B, Cr.P.C. The amount of compensation and sentence of imprisonment in default of payment is also maintained. The above are the reasons for our short order dated 6-6-2013, which reads as follows:-- "After hearing the arguments of learned ASC's and perusal of case record, for the reasons to be recorded later on, Criminal Appeal No.245 of 2009 is partly allowed to the extent that conviction of the appellant Zahoor Ahmed is maintained, however, death sentences awarded to him are converted into imprisonment for life on each count with benefit of section 382-B, Cr.P.C., while other sentences are kept intact. The sentences so awarded to him shall run concurrently. Criminal Appeal 246 of 2009 The conviction and sentences awarded to Ghulam Yousaf appellant are maintained which shall, however, run concurrently and with benefit of section 382-B, Cr.P.C. Reasons to follow separately." MWA/Z-2/SC Order accordingly.