2011 SCMR 1378 (PLP)

MUHAMMAD MOOSA KHAN LEGHARI, J.

In consequence of registration of F.I.R. No. 491 of 1995 dated 31-8-1995, Police Station, Uggoki, District, Sialkot, the appellant who was working as a labourer in the factory was sent up to stand trial for causing death of Muhammad Duraiz Khan a Chowkidar in the factory and a co-labourer deceased Nazim by inflicting churri blows on their person. The incident was witnessed by first informant P.W. Firdous Ahmed, P.W. Muhammad Azam and Ahmed Khan. The move as set up was that the appellant had quarreled with the deceased Chowkidar Muhammad Duraiz Khan and when he was coming out from the quarter of Duraiz Khan with churri at 3-30 a.m. on the fateful day, he was seen by deceased Nazim hence he killed Nazim also to destroy the evidence.

2. During the trial prosecution examined as many as 8 witnesses including 2 eye-witness, the medical officer, the Investigating Officer and Mushirs of arrest and recovery of crime weapon viz: churri.

3. On conclusion of trial, the trial Court found the appellant guilty and convicted him under section 302(b), P.P.C. The appellant was accordingly awarded sentence of death on two counts. Besides he was directed to pay compensation of Rs.50,000 each to be paid to the legal heirs of the deceased. In default thereof to undergo further imprisonment for six months. The appeal filed by the appellant before the Lahore High Court, Lahore was dismissed vide judgment dated 29-7-2004 and penalty of death awarded to him was affirmed.

4. Vide order dated 23-2-2006 leave was granted to examine the case so as to ensure that the settled principles necessary for safe administration of criminal justice have been observed.

5. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the appellant and learned Deputy Prosecutor General for the State have been heard and' the evidence adduced on the record has been scrutinized with their assistance.

6. Learned Advocate Supreme Court for the appellant has not been able to convince us that the evidence of the eye-witnesses suffered from discrepancies. The contradictions as pointed out by learned Advocate Supreme Court are insignificant. The appellant was nominated in the F.I.R. and there was no plausible reason for substitution. Even the appellant could not lead a defence to suitably refute the charges.

7. However, while keeping in mind tie principle underlying the concept of benefit of doubt in the matter of award of sentence as laid down in Mst. Bevi v. Ghulam Shabbir and another (1980 SCMR 859), we are persuaded by the submissions made by learned Advocate Supreme Court to the extent that the appellant was entitled to a benefit of doubt in the matter of sentence for more than one reason.

8. P.W.5, Firdous Ahmed who is the complainant is real Chachazad of deceased Nazim while P.W. Muhammad Azam is the real brother of above named deceased. In the given circumstances, the evidence of the above P.Ws. has to be appreciated with due care and caution and needs strong corroboration. Churri was secured on 4-9-1995 but was sent to the chemical examiner on 7-9-1995 which was received by him on 13-9-1995.

9. It has not come in the evidence through the recovery witness that the churri secured from the possession of the appellant was stained with blood. The motive of pre-occurrence altercation as set up by the prosecution for causing the death of Muhammad Duraiz Khan does not appears to be strong enough. One of the prosecution witnesses, namely, Ahmed Khan was given up by the prosecution.

10. The incident took place in the year 1995. The appellant was arrested on 2-9-1995 and is incarcerated since then. Understandably he is languishing in the death cell as a condemned prisoner since the date of trial Court judgment i.e. 29-4-1999.

11. Indeed the above narrated facts demonstrate that the extenuating circumstances do exist for awarding lesser penalty.

12. For the foregoing reasons, while dismissing the appeal and maintaining the conviction of the appellant, the sentence of death awarded to the appellant is modified to that of imprisonment for life on two counts which shall run concurrently. The other sentences shall however remain unaltered. Consequently the appellant shall be entitled to the benefit admissible under section 382(b), Cr.P.C.

13. Subject to modification in the sentence in the above terms, the appeal is dismissed. N.H.Q./M-52/SC Sentence reduced.