KARACHI, March 12: The offences of murder and kidnapping are mutually exclusive and there can be no simultaneous conviction under sections 302 and 364 of the Pakistan Penal Code, the Sindh High Court declared on Wednesday, and remitted the death sentences awarded to two civilian convicts in the notorious Tando Bahawal case of 1992.
Fifteen army personnel were court-martialled in the case in which nine members of a family were murdered in cold blood in a land dispute at Tando Bahawal in the limits of Husri police station, Jamshoro, Hyderabad. Captain Arshad Jamil Awan, the main accused, was executed. The remaining convicts, all non-commissioned officers, were awarded life imprisonment.
Of the four civilian accused, Lala Ghulam Mohyuddin died after his arrest and Ghulam Nabi Afghan absconded. Mushtaq Awan and Ghulam Nabi were tried by a special court for the suppression of terrorist activities at Hyderabad and were awarded death penalty with a fine of Rs100,000 each under PPC’s section 302 (murder), life term and a fine of Rs50,000 each under section 364 (kidnapping with intent to murder) and 10 years’ jail and a fine of Rs25,000 each under section 324 (grievous hurt).
They challenged their conviction and penalties before the Sindh High Court and their appeals came up for final hearing and adjudication before a division bench, comprising Justice Shabbir Ahmed and Justice Azizullah M. Memon, on Wednesday.
Appearing for the appellants, advocate Mohammed Ashraf Kazi argued that no accused could be charged under sections 302 and 364 of the PPC at one and the same time. Citing case law, he said where a kidnapped person was murdered, the offender could be charged with murder, pure and simple, or abetment. The special court, he submitted, convicted the accused without framing a charge under section 364 of the PPC and adequate evidence, which vitiated the trial.
The division bench set aside the punishment under sections 324 and 364 of the PPC and remitted the death penalty to life term under section 302. The amounts of fine were reduced to Rs50,000 each. The convicts have already spent 11 years in jail.