2001 SCMR 84 (PLP)

QAZI MUHAMMAD FAROOQ, J.

This judgment will dispose of the above mentioned Criminal Appeal against conviction, filed by one Muhammad Hanif, as well as criminal petition for leave to appeal, filed by the appellant's sister-in-law Mst. Inayat Begum, seeking enhancement of sentence awarded to the appellant and compensation for the legal heirs of the deceased. Both the matters have arisen from the judgment, dated 29-5-1996 of a learned Division Bench of the Lahore High Court, Lahore whereby on acceptance of the appeal filed by the State the appellant was convicted under section 302, P.P.C. and sentenced to imprisonment for life, with benefit of section 382-B, Cr.P.C., and the appellant's appeal against his conviction under section 307, P.P.C. and sentence of ten years' R.I., already undergone, recorded by the trial Court on 17-7-1978 was dismissed.

2. The occurrence had taken place in the house of the deceased Abdul Latif, brother of the appellant, on 4-9-1975 at 6-00 a.m. The F.I.R. was drawn up on the statement of Mst. Inayat Begum, widow of the deceased, recorded by Sh. Muhammad Siddique, S.-I.

3. The allegations made in the F.I.R. were to the effect that the complainant was married to the deceased about 8/9 years prior to the occurrence but they were not blessed with a child. The couple being issueless used to treat Muhammad Ashraf, son of the deceased's brother Muhammad Sharif from complainant's sister Mst. Zohra Bibi, as their own son. The deceased also used to look after his father and manage all the household affairs. The appellants neither liked the influence of the deceased on his father nor the affection extended towards Muhammad Ashraf. On the eventful day at about 6-00 a.m. while the complainant alongwith her brother Muhammad Jamil, Muhammad Latif deceased, Muhammad Ashraf and Mst. Mukhtar Bano was present in her house the appellant came there holding a pistol and a knife in his hands. He fired two shots at his brother Muhammad Latif, as a result of which he lost his life, and also stabbed Muhammad Ashraf. The complainant raised an alarm on which her neighbor Feroze Din came to the spot but he too was given a knife blow by the appellant when he tried to intercede.

4. The appellant was indicted to face trial under section 302/307, P.P.C. but was acquitted of the charge under section 302, P.P.C. by the learned Additional Sessions Judge Lahore, vide judgment, dated 17-7-1978, and convicted under section 307, P.P.C. and sentenced to 10 years' R.I., with benefit of section 382-B, Cr.P.C., and a fine of Rs.4,000 or six months' R.I. in default. Half of the fine, on recovery, was ordered to be paid to Muhammad Ashraf as compensation. He filed an appeal before the Lahore High Court against his conviction and sentence. The State also filed an appeal against his acquittal under section 302, P.P.C. The appeals remained pending for more than 17 years and were ultimately disposed of by a learned Division Bench on 29-5-1996, as stated above. The operative part of the judgment is worded thus:

"We have, therefore, reached the conclusion that the case against Muhammad Hanif respondent-accused has been established beyond reasonable doubt and that he has to be convicted of the offence of murder. In regard to the quantum of sentence, however, there are extenuating circumstances and the extreme sentence of death is not called for in this case. The incident took place on 4-9-1975. Muhammad Hanif respondent was convicted under section 307, P.P.C. and sentenced to ten years' R.I. on 17-7-1978 which sentence he has already undergone. We, therefore, allow Criminal Appeal No.89 of 1979 filed by the State, convict him under section 302, P.P.C. and sentence him to imprisonment for life. Criminal Appeal No.924 of 1978 filed by Muhammad Hanif (respondent-accuased) is dismissed and the sentence under section 307, P.P.C. is maintained. Benefit of section 382-B, Cr.P.C. shall be extended to him. Sentence of fine, however, is not called for in the peculiar circumstances of this case. "

5. The appellant has challenged his conviction and sentence through an appeal while the complainant has filed the aforementioned petition for leave to appeal with the prayers that the appellant's sentence may be enhanced to death and he may also be directed to pay adequate compensation to the legal heirs of the deceased.

6. The learned counsel for the appellant did not assail either the conviction of the appellant under section 302, P.P.C. or the sentence of imprisonment for life awarded to him and rightly so because the prosecution case against the appellant stands proved beyond any reasonable doubt in view of the confidence-inspiring and unshattered ocular evidence furnished by natural witnesses. However, he contended with vehemence that the appellant was entitled to appropriation of sentence already undergone by him during the first round. It was suggested that the relief of appropriation of the sentence already undergone may be granted in the light of the provisions of section 397, Cr.P.C. through a direction that the subsequent sentence of imprisonment for life awarded by the Lahore High Court under section 302, P.P.C. shall run concurrently with the previous sentence of 10 years' R.I. awarded by the trial Court under section 307, P.P.C. Reliance was placed on Zakir Ali v. The State (PLD 1977 Kar. 833), Altaf Hussain v: The State (1987 PCr.LJ 2169), Zora Singh v. The State (AIR 1955 Pepsu 128, Baijnath v. State (AIR 1961 Patna 138) and Nagappa Vyankappa v. Emperor (AIR 1931 Born. 529).

7. The suggestion is misconceived inasmuch as section 397, Cr.P.C. empowers the Court to direct separate sentences of separate trials to run concurrently when the convict is already undergoing a sentence of imprisonment. The case of the appellant stands on a different footing altogether. The sentence for the offence of murder was awarded to him by the learned Appellate Court in the same case and not in a separate case. An' appeal being continuation of trial cannot be equated with a separate trial Besides, at that time he was not undergoing the sentence of imprisonment awarded by the trial Court for the offence at attempted murder. The authorities cited by the learned counsel do not apply to the facts of the present case as the convicts in those cases were awarded sentence of imprisonment in separate trials and were already undergoing a sentence of imprisonment when the second sentence of imprisonment was awarded.

8. The matter, however, does not end here because case for grant or benefit of the sentence actually suffered by the appellant under the order of the trial Court is made out on different grounds. The appellant would have been well within his right to seek enforcement of the sentence concurrently had he been convicted for the offence of murder also by the trial Court and sentenced to imprisonment for life or the appeal filed by the State had been disposed of while he was undergoing the sentence awarded by the trial Court. Besides, grant of the benefit prayed for would secure the ends of justice and refusal would amount to putting premium on the delay in disposal of case which is tarnishing the image of the Judiciary gradually.

9. Adverting to the petition for leave to appeal filed by the complainant we find that the prayer for grant of compensation to the legal heirs of the deceased deserves consideration but the prayer for enhancement of sentence lacks substance. It has been observed in the operative part of the judgment of the High Court that the extreme sentence of death is not called for on account of "extenuating circumstances" but only one extenuating circumstance has been mentioned therein that the occurrence had taken place on 4-9-1975 and the appellant was convicted under section 307, P.P.C. and sentenced to 10 years on 17-7-1978 which sentence he has already undergone. In other words the learned Judges were influenced by the principle of expectancy of life. The said principle has undergone a change by efflux of time and now it is firmly settled that it is not by itself sufficient for withholding the normal sentence for murder. Be that as it may, the learned Judges have not highlighted a noteworthy extenuating circumstance which is to the effect that the motive set up in the F.I.R. has not been established and the real motive is shrouded in mystery. We are thus, not inclined to strike a discordant note. For the reasons given above, the appeal is partly accepted and it is ordered that the sentence actually suffered by the appellant out of the sentence of 10 years' R.I. under section 307, P.P.C. awarded by the trial Court shall be deducted from the sentence of imprisonment for life under section 302, P.P.C. awarded by the Lahore High Court. The petition for leave to appeal is converted into appeal and partly allowed in the terms that the appellant shall pay a sum of Rs.25,000 as compensation, within the contemplation of section 544-A, Cr.P.C., to the legal heirs of the deceased or suffer 6 months' S.I. in default. N.H.Q./M-138/S Order accordingly.