AYYAZ AHMED vs ALLAH WASAYA and others

' SARDAR MUHAMMAD RAZA KHAN, J.--- Ayyaz Ahmed sonof Imam Bakhsh, a complainant of F.I.R.

No,3 of 1994, dated 24-12-1994 of Police Station, Kot Chhutta, Tehsil and District Dera Ghazi Khan, through this petition, seeks leave to appeal against the judgment, dated 18-11-2001 of a learned Division Bench of Lahore High Court (Multan Bench) whereby Allah Wasaya and Fazil respondents/ accused were acquitted of the charge under section 302, P.P.C. Of the murder of one Murad Ali but were convicted under section 436, P.P.C. Sentencing them to rigorous imprisonment for 10 years and a fine of Rs,50,000 each; as against the judgment, dated 9-9-1996 of learned Special Judge, Multan under Suppression of Terrorist Activities Act, who had convicted the respondents under section 302, P.P.C. Sentencing them to death with a fine of Rs,1,00,000 along with a compensation of another sum of Rs,1,00,000 each, to the legal heirs of the deceased and under section 436, P.P.C.

Sentencing them to rigorous imprisonment for 5 years with a fine of Rs,50,000.

2. The background of the case is that Ayaz Ahmed complainant had parked his coaster DG-9732 at night in Mauza Jhok Utra which was set ablaze at about 12-30 a.m., burning to death of Murad Ali conductor who had been sleeping inside the vehicle. It is a proved fact that it was an unseen occurrence and no one was mentioned in the F.I.R. The prosecution had based its case on motive, extrajudicial confession as well as the judicial confession of both the respondents. The learned High Court was of the view that the motive was not plausible, the extrajudicial confession was not genuine and that the only evidence to be relied upon for conviction was the judicial confession of the accused wherein they had confessed of having had set ablaze the coaster due to strained relations with the complainant but were not aware of Murad Ali sleeping therein. That as the judicial confession was the solitary evidence against the accused, therefore, it had to be placed reliance upon in toto. Accordingly, the accused were convicted under section 436, P.P.C. Alone and sentenced as aforesaid.

3. With the assistance of the learned counsel for the petitioner, the learned counsel for the respondent/caveator and the learned Additional Advocate General, we had the opportunity of going through the entire record in the light of arguments advanced. In the circumstances of the case, we believe that the learned High Court has rightly held that the motive was not plausible, that the extrajudicial confession was a padded evidence and that the solitary judicial confessions, if made the basis for conviction, it had to be relied upon in toto without any pick and choose. Thus, the conviction under section 302, P.P.C. Was rightly set aside and that under section 436, P.P.C. Was rightly upheld with enhancement of sentence.

4. The learned counsel for the respondents claimed that the respondents had already served out the legal sentence and hencethe same could not be enhanced by this Court. Without going into the academic discussion as to whether the sentence was legal and as to whether it can or cannot be enhanced by the Appellate Court after when it stands served, we observe with concern, that, in the circumstances of the present case, the sentence awarded under section 436, P.P.C. Was not D legal either because the mandatory provisions of section 544-A, Cr.P.C. Had totally been ignored despite the proof of the fact that while committing the offence under section 436, P.P.C. The accused had not only caused a total damage of the coaster in question but had killed a man, as well. In the circumstances, and even otherwise in such-like cases, the award of compensation under section 544-A, Cr.P.C. Is mandatory.

5. Consequently, the petition, after conversion into appeal is hereby partially accepted. In addition to the sentence awarded under section 436, P.P.C. By the High Court, both the accused are sentenced to pay a compensation under section 544-A, Cr.P.C., collectively or individually, of a sum of Rs,4,00,000 for damaging the coaster, to Ayyaz Ahmed complainant. They are further sentenced to pay a compensation of Rs,2,50,000 by each accused individually, which, after collection, shall be paid to the legal heirs of deceased Murad Ali. In case of non-payment of the aforesaid compensations the accused shall be sentenced to imprisonment for six months each, which imprisonments shall run consecutive to each other as well as consecutive to the principle sentence and consecutive to the sentence in default of payment of fine. These imprisonments for non- payment of compensation shall be in addition to the mode of recovery prescribed by section 544- A(2), Cr.P.C., itself. Copy be sent to the learned Special Judge concerned for immediate implementation.