SHAHID AZEEM Versus State

ISHTIAQ IBRAHIM, J.--- Appellant Shahid Azeem, charged in case FIR No.249/2007 dated 04 11.2007, under Sections 376, 302 and 364-A of the Pakistan Penal Code, 1860 ( 'P.P.C.' ) registered at Police Station Sabzi Mandi Islamabad, was tried by learned Additional Sessions Judge, Islamabad ( 'Trial Court' ) for abduction of minor Sadia Hussain aged 07 years, committing her rape, murder and then concealing her dead body. On conclusion of trial, the appellant was convicted and sentenced by the learned trial Court for the following offences vide judgment dated 05.12.2009, as below:-

Under Section 376-P.P.C.: Sentence of death.

Under Section 364, P.P.C.: To undergo 10 years rigorous imprisonment and to pay Rs.50,000/- as fine.

Under section 201, P.P.C.: To undergo 07 years rigorous imprisonment and to pay Rs.50,000/- as fine and in default of payment thereof to further undergo six months simple imprisonment.

2.The Islamabad High Court, Islamabad while answering Murder Reference No.80 of 2009 sent by the learned trial Court in affirmative, dismissed Crl. Appeal No.506 of 2009 of the appellant vide judgment dated 11.07.2018 ( 'Impugned judgment' ) against which the appellant filed Crl. P.L.A. No. 957 of 2018 before this court. Leave to appeal was granted by this court vide order dated 09.01.2023.

3.The prosecution's case as set forth in the First Information Report ( 'FIR' ) is that on 25.10.2007 Sadia Hussain aged 07 years, a minor daughter of complainant Akhtar Hussain, who was playing in the nearby park at Asar Vela when did not return home till evening, her father/complainant started search for her and informed the police. Announcements were made in the nearby mosques regarding missing of minor Sadia Hussain. On 04.11.2007, complainant submitted an application to SHO Police Station Sabzi Mandi Islamabad for registration of case against unknown culprit(s) qua abduction of his minor daughter. On 24.11.2007 dead body of the minor Sadia Hussain was recovered from roof of mumty (a small room usually constructed over stairs to save the lower portion of the house from rain water) of house No.1314, situated in a street where the petitioner was also living in a rented house owned by the appellant. The complainant informed the police about recovery of the dead body of minor deceased and through written application charged appellant Shahid Azeem for committing rape and murder of his minor daughter.

4.After facing regular trial, the appellant was convicted and sentenced under sections 302, 376,364 and 201, P.P.C. by the learned trial Court on the basis of his confessional statement and the learned Islamabad High Court, while dismissing appeal of the appellant confirmed his death sentence by answering murder Reference in the affirmative.

5.At the very outset learned counsel for the appellant without arguing the case on merits straightaway contended that sections 302(b) and 376, P.P.C. entail two type of sentences i.e. punishment of death or imprisonment for life; that the appellant was sentenced to death under the offences, but before deciding his appeal by this Court, the appellant is behind the bars for the last more than 16 years out of which he remained in the death cell for 15 years, therefore, requested for conversion of death sentence of the appellant into imprisonment for life.

6.Considering the submissions of learned counsel for the appellant, it is a fact that after his arrest on 03.01.2008 the appellant is behind the bars till date Le. a period of more than 16 years, out of which he remained in death cell for about 15 years. In case of Dilawar Hussain (2013 SCMR 1582) , convict Dilawar Hussain was awarded death sentence. His appeal was heard by a five Members Bench of this Court. Before his appeal could be decided, he had served 25 years sentence (including remissions), out of which, he remained in death cell for about 18 years. It was held by this court in the case (supra) that where there is an jots of circumstances leading the Judges to exercise their discretion towards awarding lesser punishment, the Court must do so. On this analogy, this Court concluded that long detention of the convict has resulted into completion of his life team, which is one of the sentences provided under section 302(b), P.P.C., as such, he cannot be sentenced twice. Consequently, the sentence of death awarded to convict Dilawar Hussain was converted into imprisonment for life.

7.In the instant case we while taking into consideration the long incarceration of the appellant for a period of more than 16 years, out of which he remained in death cell for 15 years, not pressing the appeal on merit, taking guidance from the judgment (supra) and by evaluating the peculiar circumstances of the instant case, partly allow this appeal. Consequently, maintain conviction of the appellant under sections 302(b), P.P.C. and 376, P.P.C., however, convert his death sentence under sections 302 and 376 P.P.C. into imprisonment for life under each offence. Conviction and sentences of the appellant under sections 364 and 201, P.P.C. are maintained. Similarly, sentence of fine and amount of compensation to be paid by the appellant and the consequences to be faced in default of payment thereof is maintained. All the substantive sentences of imprisonment of the appellant under each offence shall rum concurrently and benefit of Section 382-B, Cr.P.C. is extended to him.

JK/S-24/SC Order accordingly.