Muhammad Akhtar Shabbir, J.--This criminal appeal by leave of the Court is directed against the judgment dated 04.06.1998 passed by a learned Division Bench of the High Court of Sindh at Karachi, whereby criminal appeal filed by the respondents against their conviction and sentence of death awarded to them for the murder of Aftab Ahmad and Agha Ziauddin by the learned IInd Additional Sessions Judge, Jacobabad, vide judgment dated 25.04.1992, was partly accepted and the conviction and sentence of death awarded to the respondents was converted into imprisonment for life and murder reference sent by the trial Court was rejected. Hence, the complainant-appellant preferred Cr. Petition for Leave to Appeal No, 114 of 1998 before this Court out of which the instant appeal has arisen.
2. Briefly stated the facts of the case, as narrated by complainant Agha Dinal Khan (PW-1), are to the effect that the deceased Agha Ziauddin was his cousin. They both had adjacent lands. On the day of occurrence (03.07.1988), the complainant along with Agha Ziauddin and his son Aftab Ahmed Khan (both deceased) and two Haris of complainant namely Shahbazi and Huzoor Bux proceeded towards Deh Jalal where Agha Ziauddin had to settle the problem of supply of water to complainant's lands as also a dispute between his two Haris namely Saffar and Majeed regarding the ownership of a goat. Having reached there, the deceased Agha Ziauddin took the matter of goat and decided against Saffar. Saffar got annoyed and there occurred exchange of harsh words between the two. Saffar went away in utter fury. Thereafter, the deceased Agha Ziauddin also settled the problem of supply of water to the lands of the complainant and all of them started their journey back. The complainant, Shahbazi and Huzoor Bux were sitting on the rear seats of the jeep whereas Aftab Ahmed Khan was driving and Agha Ziauddin was sitting next to him on the front.
Having covered some distance, they found their way blocked with stones and bushes. Aftab Ahmed stepped down from the jeep when Saffar and Majeed, Elathi Bux, Niazu and Imdad emerged from the bushes with hatchets in their hands. Saffar and Elahi Bux started giving hatchet blows to Aftab Ahmed. When Agha Ziauddin got down from the jeep in order to save Aftab Ahmed, Niazu and Majeed attacked him too. According to complainant, when he tried to interfere, he was also threatened to death. The accused gave a series of blows to both Agha Ziauddin and Aftab Ahmed who fell down on the ground. Thereafter, the accused went away raising lalkaras. Both the deceased got severe injuries on their head, neck and face and due to excessive loss of blood, they died at the spot.
3. Leaving Hazoor Bux and Shahbazi near the dead bodies, the complainant-appellant went to P.S. Thul, District Jacobabad and reported the incident on the basis of which FIR No, 006949 (Ex.13) dated 03.07.1988 under Section 302/147/148 PPC was recorded by Shoukat Ali, SHO (PW-8). The accused were arrested by the police on 19.07.1988.
4. The prosecution to establish its case against the accused-respondents produced 08 witnesses including the doctor and the investigating officer. The ocular account of the occurrence was furnished by complainant Agha Dinal Khan (PW. 1), Hazoor Bux (PW.2) and Shahbazi (PW-5). The medical evidence was furnished by Dr. Allah Warayo (PW.3) who conducted the postmortem examination of the deceased. PW-8 Shaukat Ali was the investigating officer. The respondents when examined under Section 342 Cr.P.C. denied the prosecution story and pleaded not guilty, hence claimed trial. They however, declined to lead any defence and did not make statements on oath either. It is pertinent to mention that during trial one of the nominated accused Niazoo died.
5. Learned counsel for the appellant, at the very outset, questioned the conversion of death penalty awarded to the respondents by the trial Court to imprisonment for life by the learned High Court contending that there were no mitigating or extenuating circumstances justifying the claim of reduction of sentence.
6. We have heard the learned counsel for the appellant and have perused the record with his assistance.
7. The High Court of Sindh at Karachi reduced the punishment of the respondents observing that they found no mitigating circumstances except the fact that the case was almost ten years old.
Admittedly, the FIR has been registered on 03.07.1988 at P.S. Thul, District Jacobabad and the trial Court after proceedings of four years passed the final judgment on 25.04.1992. The High Court in Criminal Appeal No, 98 of 1992 filed by the respondents, vide its judgment dated 04.06.1998, reduced the sentence of death awarded to the respondents to imprisonment for life and this appeal came up for final hearing today on 22.01.2008. In a such like case titled as The State v. Rab Nawaz & another (PLD 1974 SC 87), this Court did not restore the sentence of death to the accused Rab Nawaz rather it upheld the sentence of rigorous imprisonment for life reduced by the High Court. In another case titled as Mst. Nooran v. Noora and another (PLD 1975 SC 174), this Court maintained the conviction of respondent Mst. Nooran, whereby her death penalty was reduced to transportation for life on the consideration that the offence had been committed four years ago and in the interval for not less than two years and ten months, the convict was given a "full expectation of life".
8. In this regard another case titled as Muhammad Sharif v. Muhammad Javed C Jeda Tedi and 5 others (PLD 1976 SC 452) can also be referred, wherein the accused persons whose death sentence was commuted to imprisonment for life by the High Court were released after passage of their sentence. This Court refused to enhance the sentence. In the case of Niaz Ahmad v. Naeem Akhtar (1977 SCM R 159), dealing with the question of quantum of sentence of the accused in a case under Section 302 PPC, the Hon'ble Chief Justice Mr. Justice Hamoodur Rahman (the then he was) observed as under:-- "It has been the consistent practice of this Court not to inflict the maximum penalty under Section 302, P.P.C. where such lapse of time has taken place even when in an appeal this Court has altered the conviction recorded by the High Court under Section 304, P.P.C. to one under Section 302, P.P.C.
Thus, in the case of Ghulam Hussain v. Zainullah (2) the Court, after coming to the conclusion that the act of the respondent clearly fell to be punished under Section 302, P.P.C, did not impose the capital sentence, in view of the length of time which had elapsed since the occurrence and the intervening incident, in particular as a result of the decision of the High Court which had given the respondent Zainullah "a full expectation of life". Similarly, in the case of Ghulam Muhammad v.
Muhammad Sharif (1), where this Court, after setting aside an order of acquittal passed by the trial Court and maintained by the High Court by dismissing an appeal against acquittal under Section 417, Cr.P.C. in limine, convicted the respondent under Section 302, P.P.C. on the 6th of June 1969, the sentence of death was not imposed, because, the respondent "was given expectation of life as far back as 12.5.1966 when the trial Judge passed the order of acquittal"
9. In the case of Mst, Razia Begum u. Jehangir and others (NLR 1982 Cr1. 345), this Court followed Niaz Ahmad (ibid) and declined to impose the death penalty. The relevant portion of the judgment for further ready reference is reproduced as under: "We accordingly following the rule laid down in Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452), in the circumstances afore-noted, refrain from awarding the sentence of death to the respondent, although he deserved it; and, instead impose a fine of Rs, 25,000/- as enhancement of sentence."
10.Similarly, in the case of Muhammad Makhdoom and another v. the State (1984 SCMR 837), this Court, while maintaining the conviction of accused Muhammad Munir under Section 302 PPC an three counts, set aside the sentence of death and instead awarded him sentence of imprisonment for life on all the three counts.
11.There is no denial to the fact that after commutation of death sentence of respondents to imprisonment for life by the learned High Court, the respondents might have acquired an "expectancy of life" for the last about ten years when the judgment of the High Court was announced. It is in these circumstances, particularly after so much lapse of time, and in view of the dictum laid down by this Court in the cases referred to above, we do not find it appropriate to impose the death penalty on the respondents.
12.For the foregoing reasons, this appeal being devoid of merit is accordingly dismissed.