IJAZ AHMED CHAUDHRY, J. --- This criminal appeal has arisen out of the Jail Petition No, 149 of 2009 filed against the judgment of a learned Division Bench of the Lahore High Court, Multan Bench, Multan dated 27.1.2009 through which conviction under Section 302(b)/149, PPC and sentence of death as Ta'zir with direction to pay Rs, 25,000/- to the heirs of the deceased by way of compensation under Section 544-A, Cr.P.C. and in default of-payment thereof to further undergo S.I. for six months, alongwith other sentences under Sections 148/149, 365 & 449, PPC, awarded by the learned Additional Sessions Judge-III, Muzaffargarh, vide judgment dated 31.1.2002, have been maintained. Leave to appeal has been granted by this Court vide order dated 10.11.2009 which reads as follows:-- "In order to consider the quantum of sentence in the circumstances of the case when the daughter of the petitioner, though was living with her mother who (the latter) married to a stranger after obtaining a decree of dissolution of marriage from her first husband, the petitioner, who considered himself as being obliged, to take away his daughter and in consequence of which the occurrence took place, whether cannot be considered as a mitigating circumstance for the award of a lesser sentence i,e,, imprisonment for life, instead of sentence of death, leave to appeal is granted."
2. Occurrence in the present case took place on 29.4.2001 at 8.30 p.m. and the F.I.R. was registered on the statement of Faqir Muhammad (PW-1) who is brother of the deceased.
3. Facts, in brief, of the case are that on the night of 29.4.2001 at about 8.30 p.m. complainant Faqir Muhammad (PW-1) alongwith Sher Muhammad (given-up PW), Nazir Ahmad (deceased) and Bashir Ahmad (PW-2), was present in his house situated in Chak No, 154/ML and they were chatting with each other. In the meantime, Haji Muhammad alias Jhoora, appellant, armed with Kalashnikov, Rab Nawaz and Muhammad Sabir (POs) armed with guns, Sajjad alias Sajji and one unknown person armed with gun came there on two motorcycles. After parking their motorcycles on the north side of the house of the complainant, they entered into the house, when, Rab Nawaz alias Rabi raised a lalkara to Nazir Ahmad deceased that they had come to teach him a lesson for marrying Mst. Waziran (PW-3). Within their view, Haji Muhammad alias Jhoora appellant made reckless firing with his Kalashnikov which hit Nazir Ahmad deceased on his chest belly and other parts of his body whereas rest of the accused had been brandishing their guns in the air and they also extended threats that whoever would come nearer to them he would be dealt in the same manner.
4. 'Motive behind the occurrence, as alleged in the FIR, was that Mst. Waziran (PW-3) was earlier married to Haji Muhammad alias Jhoora, appellant, and from their wedlock three daughters were born, two of them were residing with their maternal grandfather Allah Ditta at Chowk Munda whereas the third daughter aged three years was residing with Mst. Waziran and that Mst. Waziran (PW-3) after getting her earlier marriage with the appellant dissolved through Court, had married with Nazir Ahmed (deceased) and the accused Haji Muhammad had a grudge regarding the second marriage of Mst. Waziran with the deceased Nazir Ahmed.
It has also been mentioned in the F.I.R. that the assailants after committing the offence had taken away Mst. Waziran and her daughter of three years with them.
5. After completion of investigation report under Section 173, Cr.P.C. was submitted, charge was framed which was denied and the appellant and his co-accused claimed to be tried. Prosecution in order to prove the guilt against the accused produced 10 PWs in all. After recording the prosecution evidence, statement of the appellant under Section 342, Cr.P.C. was recorded and on the question, "Why this case against you?" he replied as under:-- "I have been involved in this case falsely by the complainant party with the connivance of the police due to previous enmity with the complainant and the PWs."
The appellant neither opted to appear under Section 340(2), Cr.P.C. as his own witness, nor produced any evidence in his defence. After conclusion of trial and hearing learned counsel for the parties, learned Additional Sessions Judge-III, Muzaffargarh convicted the appellant Haji Muhammad @ Jhoora as under:--- U/s. 302(b)/149, PPC, Death as Tazir for committing qatl-i-amd of Nazir Ahmad deceased with direction to pay Rs, 25,000/- to the heirs of the deceased by way of compensation under Section 544-A, Cr.P.C. and in default of payment thereof to undergo S.I. for six months.
U/s. 148/149, PPC. Two years R.I. with direction to pay Rs, 10,000/- as fine and in default of payment thereof, to further undergo six months' S.I.
U/s. 365, PPC. Five years' R.I. with direction to pay Rs, 10,000/- as fine and in default, of payment thereof to further undergo six months' S.I.
U/s. 449, PPC Five years' R.I. with direction to pay Rs, 10,000/- as fine and in default of payment thereof to further undergo six months' S.I."
His appeal before the Lahore High Court has been dismissed and the Murder Reference sent by the Trial Court has been answered in the affirmative.
6. Learned counsel for the appellant contends that according to the prosecution the appellant was armed with Kalashnikov but from the perusal of the report of the Doctor, the injury could be caused with a .30 bore pistol; that the injury received by the deceased cannot be caused to him if he was lying on the cot and contradictory statements have been made by the witnesses in this regard; that the medical evidence does not fully support the prosecution case; and in the circumstances, prays that the sentence may be reduced from death to life imprisonment. While referring to the judgments of this Court in the case of Dilawar Hussain V. The State (Criminal Review Petition No, 72 of 2007) pronounced on 17.4.2013 and Hassan etc. v. The State (Criminal Appeals No, 13, 14, 15 & 16 of 2004 and 53 of 2011) announced on 31.5.2013, contends that since tie appellant has spent 12-years in the death cell and earned remission for almost 3 years, therefore, his sentence of death merits to be converted into imprisonment for line.
7. On the other hand, learned Additional Prosecutor General has supported the judgment of the Courts below and has contended that the prosecution has been able to prove the case against the appellant beyond any shadow of doubt, therefore, no case is made out for reduction of sentence.
8. We have heard the counsel for the parties and available on record as well as below. eats of the learned perused the evidence judgments of the Count In the instant case leave to appeal has been granted only to take into consideration whether the sentence of death passed against the appellant can be reduced in the circumstances of the case and leave has not been granted for reappraisal of the evidence but in the interest of justice we have taken into consideration the merits of the case. Incident, in the present case, has taken place at 8.30 p.m. in the Haveli of the complainant and the matter was reported to the police and F.I.R. was recorded at 10.00 p.m. at the police station. F.I.R. in this case has been recorded with promptitude and there is no chance of concoction of any sort. We have also noticed that PW-1 Faqeer Muhammad, PW-2 Bashir Ahmad and PW-3 Mst. Waziran had made consistent statements regarding the incident and had ascribed a specific role of firing at the deceased by the appellant. Mst. Waziran was also abducted on the day of incident and she was recovered at the instance of the appellant after his arrest on 18.6.2001 and in her statement she had fully supported the prosecution case.
9. There is no question of mis-identity of the accused/appellant on the part of the PWs as they previously knew the appellant who was ex-husband of Mst. Waziran Bibi. The parties were known to each other and the family members were sitting in the Haveli at 8.30 p.m. when the incident took place therefore there is no question of misidentification of the appellant. They have made consistent statements to the extent of the role of firing ascribed to the appellant. They were subjected to lengthy cross-examination but the defence has failed to gain anything and both the Courts below have rightly relied upon the statements of the eye-witnesses which is supported by the medical evidence and the recovery of Mst. Waziran on 18.6.2001 on the potation of the appellant, hence the prosecution has been able to prove the case against the appellant beyond any shadow of doubt and this Court has rightly declined him to grant leave on merits.
10.As far as the question of quantum of sentence is concerned, in the present case Mst. Waziran who was ex-wife of the appellant had obtained divorce from the appellant and had contracted marriage with the deceased. The appellant after about two years had come to the place of the incident while armed with fire-arm alongwith other companions and had killed Nazir Ahmed, deceased, by firing recklessly at the vital parts of his body leaving no chance for his survival. He, after commission of murder of deceased, had also abducted Mst. Waziran (PW-3), who admittedly, had obtained divorce from him and was living a matrimonial life with the deceased. It has not come on record that the appellant had ever tried to meet his daughters and was not allowed by the deceased or Mst. Waziran, his ex-wife. Even the appellant in his statement under Section 342.
Cr.P.C. did not utter a single word about any action by the deceased provoking him for committing the offence of murder. On the other hand he has committed this heinous offence after making preparation and covering a long distance. The appellant has committed the murder of Nazir Ahmad who had no enmity with the appellant and had contracted marriage with Mst. Waziran who had already obtained divorce from the appellant. We have examined the evidence of the prosecution witnesses and the defence taken by the appellant and find that in the instant case no circumstance exists which could be considered as mitigating circumstance for conversion of his death sentence which has been recorded by the Courts below after proper appreciations of entire evidence available on record.
11. So far as the argument of the learned counsel for the appellant that since this Court in me referred judgments has altered death sentence of the accused therein into imprisonment for life, therefore, the appellant also deserves the same treatment is concerned, suffice it to observe that as per report of the jail authorities he has to still serve out the remaining sentence10.2.2024 if his sentence of death is converted (Mc imprisonments for life, thus, a period of almost 12-years would remain to be served out by the appellant in case his sentence is converted into imprisonment for life, as such, his case is not covered by the aforesaid judgments. In the first referred case, namely, 'Dilawar Hussain v. The State (Criminal Review Petition No 72 of 2007) pronounced on 17.4.2013, this Court while interpreting rule 140 of the Pakistan Prison Rules held as under:-- "10. After having found in the scheme of criminal legislation that the discretion lies with this Court: either to go for maintaining the sentence of death of the convict or to convert it into imprisonment for life, keeping in view the facts and circumstances of the case, we would have to first define the term 'life imprisonment' and have also to see whether such conversion would meet the ends of justice. We are cognizant of the fact that the term 'life imprisonment' has not been defined in the Pakistan Penal Code. However, Section 57 of the aforesaid Code provides that for the purposes of calculating fractions of the term of punishment, "life" shall mean imprisonment for 25 years.
Section 57 is reproduced below for facility of reference:--- "Fractions of terms of punishment---In calculating fractions of terms of punishment for life shall be reckoned as equivalent to imprisonment for twenty-five years."
Rule 140 of the Pakistan Prison Rules also talks of the imprisonment for life which is also quoted below:-- "Rule 140.---(i) Imprisonment for life will mean twenty-five years' rigorous imprisonment and every life prisoner shall undergo a minimum of fifteen years substantive imprisonment.
(ii) The case of all prisoners sentenced to imprisonment for shall be referred to Government, through the Inspector General, after they have served fifteen years' substantive imprisonment for consideration with reference to Section 401 of the Code of Criminal Procedure.
(ii) The cases of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty-five years or more shall also be submitted to Government, through the Inspector General, when they served fifteen years substantive sentence for orders of the Government."
11.In view of the afore-quoted provisions of law it is crystal clear as the light of the day that life imprisonment mean twenty-five years rigorous imprisonment. Even Rule 198(b) of the aforesaid Rules talks of the lifer as a person sentenced to imprisonment for life and such sentence shall mean twenty-five years' rigorous imprisonment. In the instant case the petitioner is being incarcerated in the death cell for the last 17 years, one month and five days and by efflux of time he has also earned remissions for 18 years, eight months and ten days. Keeping in view the aforesaid extenuating circumstances to the effect that the petitioner did not repeat the fire, chose lower part of the body, petitioner and deceased being closely related to each other, incident took place on some abrupt altercation between them and that incarceration of the petitioner in the death cell for a long period we are of the considered view that the conversion of sentence from death to imprisonment for life would not only be proper rather it would be in the interest of justice.
This Court, in the other judgment of Hassan, etc. v. The State, etc. (Criminal Appeals No, 13, 14, 15 & 16 of 2004 and 53 of 2001) announced on 31.5.2013, has also held as under:-- "21.After attending to the mitigating circumstances available in the facts and circumstances of this case and after deliberating upon the issues concerning Section 403, Cr.P.C., double jeopardy, expectancy of life and Article 13(a) of the Constitution we now proceed to briefly advert to some other submissions made before us. We note that by virtue of Article 37(e) of the Constitution it is a responsibility of the State to "ensure inexpensive and expeditious justice". It is probably in this context that through the provisions of Sections 497, 426 and 382-B, Cr.P.C. the legislature itself intends to provide some relief to an accused person or a convict in a criminal case if the State has not been able to fulfil its Constitutional responsibility of providing him expeditious justice. If an accused person's trial is not concluded within a specified period Section 497, Cr.P.C. contemplates bail for him, if a convict's appeal is not decided within a particular period Section 426, Cr.P.C. provides for suspension of his sentence and release on bail and if a trial is unduly prolonged then Section 382-B, Cr.P.C. makes it possible that the period of detention of an accused person during the trial may be counted towards determination or calculation of his sentence of imprisonment passed after conviction. Applying the same standard or principle, it may not be unreasonable to conclude that where a convict sentenced to death on a charge of murder fails to obtain a final judicial determination qua validity of his conviction or desirability of his sentence of death for such a long time that his period of custody stretches to a period equal to or exceeding a full term of imprisonment for life, which is one of the two alternative legal sentences provided in Section 302(b), P.P.C., there the State, acting through its judicial Organ, may edge failure of its Constitutional responsible of ensurence expeditious justice and may exercise discretion in the matter Of the sentence of such convict by reducing it from death to imprisonment for life. It has already been mentioned by us above that after recording of their convictions and sentences by the learned Trial Court in the year 1991 the appellants' sentences of death had been confirmed by the Lahore High Court, Lahore in the year 1999 and they had then approached this Court through Criminal Petitions in the year 1999 wherein leave to appeal was granted to them in the year 2004.
New after about fourteen years of their approaching this Court and after spending more than twenty-five years of their lives in custody, out of which period they have spent about twenty-two years in death-cells, the appellants' appeals have come up for decision before this Court. We have also observed above that the stark reality staring us in the face is that both the appellants have already spent in custody a period more than a full term of imprisonment for life and if we uphold their sentences of death at this late stage then the appellants would, for all practical purposes, be punished with death after spending a period in custody which is more than a full term of imprisonment for life and such a bizarre situation may run contrary to the letter and the spirit of Section 302(b), PPC which provides for a sentence of death or a sentence of imprisonment for life. Such a case may not strictly be termed as a case of double punishment but it can more appropriately be called a case of an unconscionably delayed punishment, delayed to such an extent that the punishment is aggravated beyond the contemplation of the relevant law itself.
Upon the analogy of Sections 497, 426 and 382-B, Cr.P.C. noted above the legislative intent may lean in favour of extending some relief to the appellants placed in such a predicament which is not of their own making and the least that this Court can do for them in such an unfortunate situation is to exercise its discretion in the matter of their sentences by reducing their sentences of death to imprisonment for life on the basis of the facts and circumstances of the case detailed above and also on the basis of the principle of expectancy of life. In the case in hand after committing the abominable crime of murder the appellants have been vegetating and rotting in death cells awaiting their execution for so long that they now appear to have become victims themselves, victims of a monumental systemic failure which the system must acknowledge and own and in return it should extend the appellants some respite or reparation."
12. Viewed from what has been held in the aforesaid judgments, the appellant in the instant case has not undergone the sentence of imprisonment for life. The appellant in the case in hand has only served out twelve years in jail, as such, his case does not at all fall in the category of cases wherein this Court help him out in reduction of death sentence to imprisonment for life. Even otherwise, simplicitor factum of reduction in the sentence is not serving out the sentence by the appellant alone rather other factors are also to be kept in view while converting normal penalty of death into imprisonment for life in such life cases. This case is distinguishable from the facts and circumstances of the above-referred cases and the principles lay down therein. In the referred cases, the Appellants not only remained incarcerated in jail for a quite sufficient long time equal to imprisonment for life but there were extenuating circumstances which also weighed with this Court for reduction of their sentences from death into imprisonment for life. In the instant case there are no such mitigating circumstances which could help out the appellant for reducing his sentence. In the case in hand the appellant had caused death of an innocent person in a reckless manner while firing at the vita! part of his body leaving no chance for his survival whose fault was only that he had contracted marriage with ex-wife of the appellant. The appellant after having taken away the life of husband of Mst. Waziran (PW-3) also abducted her. In the facts and circumstances of the instant case, it is established that the appellant committed heinous offence after making preparation, as such; the argument of the learned counsel for the appellant has no force at all in the absence of any mitigating circumstance for reduction of his sentence from death to imprisonment for life.
13. As in the instant case the appellant has left no chance for the survival of the deceased by acting in a pre-planned manner and committed heinous offence of murder coupled with the fact that Mst. Waziran was also abducted by the appellant who was recovered at his instance, we find no reason for conversion of his sentence of death into imprisonment for life, hence this appeal is dismissed.