Muhammad Ali (Appellant) VS The State (Respondent)

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IN TU,dr lr HIGH COURTK'oFSINDH,

CI RCUIT COURT HYDERABAD

Before -r Mr. .lustice Naimatullah Phulpoto Mr. Justice Mohammad Karim Khan A;1lur

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Cr. Spl. ATA. AppealiNo.D-24 of 2005.

Muhammad Ali

Vs

The State.

Appellant Muhammad Through Syed Talique Ahmed Shnlr Ali Advocate

Respondent: The State Through Syed Meeral Shah B rtklrar r Additional' Prosecutor General.

J

Date of hearing 17.05.2017

Date of judgment 31.05.2017

JUDGMENT

MOHAMMAD KARIM KHAN AGHA, J.- This appeal 15 qli1.r'r:lcrl against the juclgment dated 24 .02 .2OO5 passed by learned Judgc . A rr ti Terrorism Court Hyderabad & Mirpurkhas Division at Hyderahl'l' irr Special Case No.2B of 2001, arising out of Crime No'21 l'"'ttol' registered at Police Station Ladiun District Thatta, under sectiorr il)"1. 377 PPC, 12 EHO and SectionT of ATA, 1997, whereby the aplr','llrrrrl has been convicted under the above referred sections and scrtl.crt,'c,l to suffer irnprisonment for life and to pay the fine of Rs. onc la,' lly fine if realized shall be given to the legal heirs of the decenst'rl lrr default of payment of fine the accusedwas ordered to suffer RI fot "rrr. year more (the impugned judgment). Benefit of Section 382-8 Llr.l'.( l. was also extendecl to the accused.

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2.Brief facts of the prosecution case as disclosed in the lill'l rtrr' that on 08tr, July 2001 accused person noted above had tal<ctt itrv"r' the boy of four yeal's of age namely Abbas Ali son of Mllhltrrrrr;rrl Usman Zangejo ancl got him one toffee from the shop of Pw-:] 7\11111r:rl and thereafter he had kidnapped the victim boy Abbas Ali -u'illr

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intention to commit un-natural lust upon him and thereby 6s1-r1111i{(r'rl the carnal intercourse against the order of nature upon the viclirrr irrtrl thereafter the accused allegedly caLsed murder intentiontrllt 'ttt'l lr(}'lrr deliberately of victim Abbas Ali and then he had burnt the d<'rtrl Itrxl of the victim. The accused during the course of investiga'l.iorr voluntarily produced a cap of the deceased victirn i) t, t I lrr handkerchief together with the pieces of burnt clothes of the (lr:< ''":" 'l before the police. It is also the case of the prosecution that tlte;rl'r'r'r' :r;trl act of the accused had caused sense of terrorism, tension' fi::rr insecurity amongst the people of the locality. FIR was lodgctl :tr;ritt':{ the accused and accused was finally challaned by the polit:r'rrll''r usual investigation.

3.Trial court framed charge against accused at Ex'6 u/s:l()il l'l'(' r/w section 6(21 (a) punishable u/s 7(a) Anti-Terrorism Atnetttltrr''rtl ordinance 2oo1, wls 377 PPC r/w section 12 EHO and sectiolr ' f ": 'tt ATA 1997, to which accused pleaded not guilty and claimecl lrr'rl 'rri the trial prosecution examined o9 witnesses in order to provc il:r ! ir':r

against the accused.

4.Statement of accusecl was recorded u/s 342 Cr'P'C'al- li)x lil rrr which he has deniecl the prosecutlon allegations and clairrrr''l lrr- innocence. He further stated that he,has been implicated in llri:' ';r:'' falsely due to enmity of his father with the complainant. Accttr:r'rl 'litl (t:rllt not lead evidence in defence and cleclined to give statement olt

5.Learned trial court after hearing the learned counsel l()r tlrr- parties and examining the evidence available on record g6sviglCrl ;rt|'l sentenced the appellant as stated above' Hence this appeal' We do not consicler it necessary to discuss the evictentjc rtr llrrr

lrttl case as the appellant is not challenging the merits of the cn:r.

instead has sought his release on the basis that he has under grrrrr- more than 15 years imprisonment o[ his life sentence'

7.Syed Tarique Ahmed Shah, learnecl advocate for appell;rtrt I l' contended that since the appellant had undergone more thatr u$ualh' years of his substantive sentence of life imprisonment (which Rtrlc:r

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is considered to be 25 years under s.140 of the Pakistan Prison hr:

1978) he was entitled to be released' In support of his contentions' placecl reliance of the case of Bashir Ahmed v' State (PLD 'l()()'l ancl l.lr' Supreme Court 775), S.14O of the Pakistan Prison Rules 1978 jail role provided by the office of the superintendent central prieorr Hyderabad dated t5-o5-2o17 in respect of the appellant's time spcttl

in jail on account of his conviction for the aforesaid offenses. I lr' B. Syed Meeral Shah Bukhari, learnecl APG while supporting impugned judgment has conceded that if as a matter of la"r' tlr' appellant is entitled to such relief then he has no objection to llr remission of the sentence of the app.ilant

9 We have considered the conteniions of the parties, the relevarrl record and the relevant law

The first issue is whether as a nratter of law in a case SLlr:lt :r:

this where a convict has servecl more than 15 years (exchlrliilr remission) of his substantive sentence of life imprisonment he [Iay lrt

released.

il. In the case of Gamoon V State (SBLR 2Ol2 6791 it ttrrr:' indicated by a single Bench of this court that in such circumstaucc:r it was legally permissible for this court to remit a sentence in t.l r'' following terms at P.699 Para 15 which is reproduced as under lirr ease of reference:

-/ "15. According to Rule 140 0f Pakistan Prisou Rules 1978' il t" clear that imprisonment for life means twenty five years rigtrt'.)'t" imprisonment and every lifer prisoner shall undergo a tuinilnr tr" of iifteen year-s substantive imprisonment. For the convenictrr ' .

Rule 14O of Pal<istan Prison ,llules 19'78 is reproducr"I '''.' under:- ..Rule14o---(i|Imprisonmentforlifewillmeantwent.,vlir.r. yeat's'rigorous imprisonment atld every lifer prisoucr slrrrll r,' {

4 (tl undergo a minimum of fifteen years substautiv' imprisonment

(ii)The case of all prisoners sentenced to imprisonrtrctrl for life shall be referred to Government, througSycatllrc:r Inspector Gerleral after they have served fifteen substantive imprisonment for consideration with refet'ctt' '' to section 401 ;f the Code of Criminal Procedure'

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(iii)The cases of all prisoners sentenced to cumulatir"' period of imprisonment aggregating twenty-five years ()r more shall te, submitted to Government, througl-r llr, Inspector General, when' they have served fifteen 'yc'rt ' substantive sentence for orders of the Government'" t6. Since, the portion of substantive sentence served h-y llr'' appellants was less than fifteen years, therefore, keeping in vi.r" Rule 14O of Pakistan Prison Rules 1978, I was not inclinctl t" order the release of the appellants on the sentence t1t's6tli' undergone and re-fixed the rnatter for hearing and called upon tlrr: learned advocates to argue the case on merits'"

12.we have also observed that such relief was also granted by a l-rli of this court in unreported Cr. Appeal No.D2O9l2006 in the casc ol Qadir V State dated 2l-O4-2O17 in which one of us was a mernlrr r

(Naimatullah Phulpoto J) and as such remission of SenLetrcc i" permissible by this court if an appellant has served 15 years rtf'lri-r substantive sentence.

13.The next issue is whether the appellant has as a matter of {nr I served out more than 15 years of his substantive sentenr.:e irr connection with his sentence of life imprisonment in connection urillr the aforesaid offenscs for which he was convicted'

14.In this respect the jail role provided by the office of the superintendent central prison Hyderabad dated 15-05-20 17 clcnrlv specifies that the appellant has served 16 years imprisontncrrl (excluding remission up to 15-05-2017). (This period exclurlrrrr. according to the jail role 5 years 5 months and 22 days wot'llr (ll remission which if cousidered woulcl leave his unexpired portion of hr:r sentence yet to be served at 4 years 6 months and 8 days)'ln trrrv event he has served more than 15 years of his substantive sel-rlctt'r' (excluding remission) and thus would qualify to be released fro[r jail u ,r,

5 lfz l5. We have however observed that tl-re appellant was sentencecl l" suffer imprisonment for life and to pay the IIne of Rs' one lac' '[lr" lrr fine if realized shall be giver-r to the legal heirs of the deceascrl' default of payment of fine the accused was ordered to suffer ltl for one year more

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16.Thiswouldmeanthattheappellantwoulclhavetoutrdet'gr'"r further year of imprisonment. In our' view however the imprisontuotl o[ ott" ought to have been for a further period of 6 months SI instead year in default of the payment of fine and thus in this respect w(' sitr"' modify the judgment (although even without such modification the appellant has ttncler gone 16 years in jail he would still hrtr"

qualilied for the remission) and find that since the appellant ltrt:r by tlre iflil served over 15 years of his substantiVe sentence as proven role we consicler that it would meet the ends of justice if llr'' tlr'' rernainder of his sentence was remitted and thus we heleby remit trsc' remaincler of the appellants sentence and order his immediate rele based on the sentence already undergone, from jail in this case utrlcs:r

he is wanted in anY other case.

17 . The appeal is disposed of in the above terms' Hyderabad:

Dated:31 .O5.2017 wl- ruwE 3\.:i' >,51 --\

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