' IJAZ AHMAD CHAUDHRY, J.---Through this Review Petition under Article 188 of the Constitution of the Islamic Republic of Pakistan 1973 read with Order XXI, Rule (I) of the Supreme Court Rules 1980, Dilawar Hussain petitioner seeks review of the judgment of this Court dated 9-10-2007 passed in Criminal Appeal No,200 of 2003.
2. Succinctly the facts, relevant for the disposal of this Review Petition, are that Dilawar Hussain petitioner was tried by the learned Special Judge (Suppression of Terrorist Activities) Gujranwala in case F.I.R. No,164 of 1995 dated 11-7-1995 registered under section 302, P.P.C. At Police Station Ghakhar Mandi District Gujranwala at the instance of Akhlaq Ahmad son of Muhammad Sharif for the murder of Haji Nazir Hussain son of Lal Khan, according to which, the complainant on 11-7-1995 along with his wife came to village Fateh Garh to see his father-in-law. At 6-00 p.m. He along with his father-in-law, namely, Nazir Hussain deceased was coming to the Dera when accused Dilawar Hussain, through an unknown person asked them to meet him at the Dera of Ehsan Ullah.
Accordingly, the complainant and his father-in-law, Nazir Hussain, went to the Dera of Ehsan Ullah situated at a distance of one acre. Dilawar Hussain accused, who was present at the Dera, while armed with rifle, asked the deceased to return the land purchased by him from his father or get ready for his death. Dilawar Hussain, petitioner/convict also started abusing Nazir Hussain and in the meantime Atta Ullah son of Inayat Ullah and Muhammad Ilayas son of Inayat Ullah also came there. In their presence accused reiterated his demand to .Nazir Hussain deceased to return the land whereupon Nazir Hussain said that he had purchased it from his (accused's) father and if he had to get the land he should make payment for the same but Dilawar Hussain accused raised Lalkara and fired at the deceased Nazir Hussain hitting on his left upper thigh. The accused along with the unknown person decamped from the place of occurrence. Nazir Hussain was being shifted to the Hospital in injured condition, however, he succumbed to the injuries on the way. Upon conclusion of the trial the learned trial Court vide judgment dated 15-3-2000 convicted and sentenced Dilawar Hussain, petitioner, under section 302(b), P.P.C. And sentenced him to death with direction to pay fine of Rs,50,000 or in default thereof to undergo 3 years imprisonment. The said judgment was . Challenged by the petitioner before the Lahore High Court, Lahore in Criminal Appeal No,122-J of 2000 which stood dismissed vide judgment dated 26-3-2002 by a learned Division Bench of the Lahore High Court, Lahore and his conviction and sentence was maintained whereas the amount of fine awarded by the learned' trial Court was ordered to be treated as compensation under section 544-A of the Criminal Procedure Code to be payable to the legal heirs of Nazir Hussain deceased or in default thereof to undergo S.I. For six months. Being dissatisfied with the judgment of the Lahore High Court the petitioner challenged the same by filing Jail Petition No,106 of 2002 before this Court which after grant of leave was converted into Criminal Appeal. No,200 of 2003, which heard and dismissed vide judgment dated 9-10-2007. Hence this petition seeking review of the aforesaid judgment.
3. Learned Counsel for the petitioner, while arguing the matter before this Court on 6-5-2010, did not press this Review Petition against the petitioner's conviction but contested the quantum of sentence of death awarded to him.
4. Learned counsel for the petitioner contends that the petitioner had fired a single shot at the deceased which landed on the left thigh; that the petitioner and the deceased are closely related to each other and the incident took place on some abrupt altercation between them and that the intention of the petitioner was not at all to take away the life of the deceased as is apparent from the facts and circumstances of the case, as such, it was not a case of capital sentence rather the aforesaid circumstances do provide for a mitigation leading to lesser punishment. He has relied upon the following case-law in support of his aforesaid contentions:--
(i) M. A. Jalil v. The State (PLD 1969 SC 552)
(ii) Shaheb All v. The State (PLD 1970 SC 447)
(iii) Emmanuel Bahadur Goseph v. Paul Jackson and another (1981 SCM R 663)
(iv) Razi and others v. The State (PLD 1983 SC 58) (iv) Kala v. The State (PLD 1983 SC 88)
(v) Munawar Hussain v. The State (1983 SCM R 1165)
(vi) Mukhtar Ahmad v. Muhammad Ilyas and another 1986 SCM R 634)
(vii) Saiful Malook and others v. The State and others (1992 SCM R 1597)
(viii) Shafey Ali v. Asrar Beg and others (PLD 1992 SC 232)
(ix) Allah Dawaya v. The State (PLD 1993 SC 35)
(x) Hassan Muhammad v. The State (1994 SCM R 1212)
(xi) Abid Hussain v. The State (PLD 1994 SC 641)
(xii) Messrs M. Y. Malik & Co. And 2 others v. Messrs Spendlours International (1995 SCM R 922)
(xiii) Muhammad Arshad and 2 others v. The State (PLD 1996 SC 122)
(xiv)Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCM R 2203)
(xv) Muhammad Aslam and others v. The State and another (PLD 2009 SC 777)
5. Learned Counsel for the complainant as well as learned Additional Prosecutor-General have vehemently opposed this petition on the ground that the scope of review is very limited as this Court while exercising its powers of review, cannot have recourse to reappraisal of evidence and has power only to rectify an error apparent on the face of record; that the delay in execution of the sentence or delay in decision of the case and detention of the petitioner in the condemned cell for a long period is no ground for altering the sentence from death to imprisonment for life. In this respect he has relied upon Muhammad Aman v. The State (1987 SCM R 124), Maqbool Ahmad v. The State (1987 SCM R 1059); that the petitioner fired a shot aiming at the deceased but luckily it hit on his leg, as such, the intention of the petitioner was to kill the deceased as the same is surfaced from very pressing of the trigger of the gun: that in the circumstances of the case said contention does not provide any ground for mitigation in reduction of the sentence. Reliance is placed on Muhammad Naseem v. The State (1987 PCr.LJ 1758); that the doctrine of expectancy of life does not constitute a valid ground for conversion of death sentence to imprisonment for life as a mitigating circumstance. Reliance was placed on The State v. Muhammad Akram and others (1987 PCr.LJ 1728); that as far as the motive is concerned, the prosecution had fully proved that part of the case whereas defence failed to shatter the veracity of prosecution evidence on this point, as such, the instant petition for review is liable to be dismissed.
6. We have heard the arguments of the learned Counsel for the parties and have perused the available record.
7.There are number of legal questions involved in the instant case. Out of those legal questions, mitigation is the foremost which always press upon the mind of the Court for reduction in sentence, in criminal cases. Although it is very rare phenomenon to discuss the mitigating circumstances in the review petition, yet, the same are being taken note of as the aforesaid petition is alive before us only to consider the quantum of sentence as such, the same are being discussed here considering those factors to be legal error apparent on the face of record. In the case under discussion the complainant while appearing in the witness box as P.W.2 stated that Nazir Ahmad, deceased, was his father-in-law. He along with his wife came at Fateh Garh to meet his in-laws. At about 6-00 p.m. He along with his father-in-law was going to his Dera. An unknown person met them and told that Dilawar Hussain accused had called Nazir Hussain deceased at the Dera of Ehsan Ullah situated at a distance of one acre. On the call of Dilawar Hussain accused, he, along with Nazir Hussain, deceased reached at the Dera of Ehsan Ullah and saw that Dilawar Hussain accused was present there being armed with rife. An unknown person was also present there along with Dilawar Hussain accused. Dilawar Hussain accused asked Nazir Hussain deceased to return the land which he had purchased from his father and asked him that if he would not return the land to him he would teach him a lesson. Nazir Hussain deceased told Dilawar Hussain accused that he had purchased land from his father against consideration, therefore, he would not return the same. Atta Ullah son of Inayat Ullah and Muhammad Ilayas son of Inayat Ullah came there during this period Dilawar Hussain accused again asked the accused to return the land otherwise he would kill him.
The deceased in reply told the accused that he is ready to return the land to him if he is ready to pay the consideration. On this Dilawar Hussain accused raised a Lalkara and fired with his rifle at Nazir Hussain which hit him on his left thigh. Nazir Hussain fell down and Dilawar Hussain fled away from the spot along with other unknown person while resorting aerial firing; Nazir Hussain was shifted to the Hospital in injured condition but he succumbed to the injuries on the way when he reached near the village. Muhammad Ilayas P.W.2 who is also an eye-witness of the occurrence narrated the similar story. From the locale of injury the intention of the accused was clear that at the time of occurrence he chose to fire on lower part of the body of the deceased only to threaten the deceased to accede to his desire regarding return of land purchased by the deceased from his father but unluckily the said fire became the cause of death of the deceased. The accused also did not repeat the fire from which it also appears that the purpose of the accused was not to take away the life of the deceased but only to threaten him to return the land. Even otherwise, no empty was collected by the Investigating Officer from the spot. In such circumstances it appears that the petitioner intentionally avoided to hit the vital parts of the body and selected such part which was well known as not containing any vital artery. This intention of the petitioner provides for a strong mitigation to convert sentence of the petitioner into imprisonment for life. This Court in the case of Shafey Ali v. Asrar Beg and 2 others (PLD 1992 SC 232) extended the same sort of benefit to the accused while holding that both the injuries on the deceased which were attributed to the convict were on his buttock. It is correct that the lower part of the buttock is connected with the upper thigh and the upper part of the buttock is connected with iliac region and depending upon the circumstances in each case, particularly the exact locale of the injury would have to be considered to determine the knowledge or intention of A the assailant. We are fortified by the judgment of this Court in the cases of M.A. Jalil v. The State (PLD 1969 SC 552), Munawar Hussain v. The State (1983 SCM R. 1165) and Shafey Ali v. Asrar Beg and 2 others (PLD 1992 SC 232).
8. Section 302(b) of Pakistan Penal Code provides only two sentences, one death sentence and the other imprisonment for life. In order to better appreciate the contention of the learned Counsel for the petitioner that only one sentence out of two would be awarded to the petitioner, provisions of section 302, P.P.C. Are reproduced below for facility of reference:-- "302. Punishment of Qatl-e-amd---Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be -
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years where according to the injunctions of Islam the punishment of qisas is not applicable: ' Provided that nothing in this clause shall apply to the offence of qatl-e-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be".
' According to Section 302 (b) of the Pakistan Penal Code the person committing qatl-e-amd shall be punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case if the proof in either of the forms specified in section 304, P.P.C. Is not available. The counter argument raised by the learned counsel for the complainant that prolonged detention of the person convicted for an offence under section 302(b), P.P.C. As a result of the delay in the conclusion of his trial and disposal of the appeal is not by itself sufficient to declare him entitled to the lesser penalty under section 302(b), P.P.C. Is nothing but departure from the intent of the legislature as the law itself has tackled the situation in which the Court has to select one out of the two sentences of the offence. This Court in the case of Muhammad Arshad and 2 others v. State (PLD 1996 SC 122) while dealing with a case of like nature held as under:-- "10. We first take up the question of sentence of Arshad appellant under section 302, P.P.C. He has been awarded death sentence on the charge of murder which undoubtedly is a .Normal penalty for the offence of murder but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P. P. C. Now, in the present case, there are circumstances forthcoming from the record which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence but the learned Courts below have not duly attended to them when considering the question of sentence to be imposed on the appellant. It is an admitted position that there existed no background of any previous enmity or deep-rooted hostility between the appellant and the deceased. There was only a minor dispute between them regarding the demarcation of their adjacent plots which resulted in the unfortunate occurrence. It is also in evidence that the act of firing by Arshad appellant at the deceased was preceded by a dialogue between the accused and the deceased followed by scuffle/grappling between Afzal accused and the deceased and the pelting of stones by the daughters of the deceased at Afzal accused who as a result sustained some injuries. It is also significant that Arshad appellant fired only one shot and did not repeat it. All these factors in our view cumulatively make out a case for mitigation of sentence. We, therefore, hold that the extreme penalty of death awarded to Arshad appellant was not called for and the lesser sentence of life imprisonment would meet the ends of justice."
9. The facts and circumstances in the instant case are not different from the case referred supra as the single fire was shot by the petitioner, as such, there is sufficient mitigation in order to alter death sentence into imprisonment for life. It has neither been the mandate of law nor the dictates of this Court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution. In such circumstances, if the court is satisfied that there are certain reasons due to which death sentence is not warranted, the court has no other option but to impose second sentence of imprisonment for life while extending benefit of the extenuating circumstances to the convict in a just and fair manner. Even otherwise, it would be unjust, to impose double sentence on the petitioner for commission of one offence as by keeping the accused in death cell for a period of 18 years, the delay in the disposal of his case being not at all attributable to him, it will be against the principle of natural justice that he is hanged by neck. In this view of the matter, we are of the considered view that such extenuating circumstances do exist in the instant case for giving the benefit thereof to the petitioner. There is no cavil to the proposition that the law itself i,e, clause (b) of section 302, P.P.C. Empowers the Court to inflict either death penalty or imprisonment for life in appropriate cases where the second type of sentence is otherwise justified. There is no doubt that the Court has the discretion to inflict death penalty without hesitation if the circumstances do permit like the victim had been done away with in a cold blooded, ghostly and brutal manner or roasted alive etc. And the Court should exercise its discretion very carefully and cautiously and not to ignore the gravity of the offence committed by the accused. So much so the Court has also to exercise discretion in the aforesaid manner where the circumstances of the case do exist for lesser punishment also keeping in view the value of the life and liberty of human being a most precious human right regarded by Article 9 of the Constitution of the Islamic Republic of Pakistan 1973 as a fundamental right. In the case of Shaheb Ali v. The State (PLD 1970 SC 447) this Court while modifying the sentence of the accused from death to transportation for life held as under:-- "I am conscious of the fact that this Court is not a clearing house or a corrective forum to revise the sentences passed by competent Courts in criminal cases. It is certainly not the function of this Court to interfere and tinker with legal sentences so awarded. However, if the sentence is found to have been measured fancifully in breach of recognized principles of natural justice, this Court, in the interest of justice and fair-play, must intervene.
' Speaking frankly, I have been put to a considerable strain in making up my mind in this case. The question that has tossed my mind is: shall I uphold the sentence of the appellant or shall I scale it down to that of the co-accused? If I uphold it, do I not approve of the mistake of the High Court in creating an adverse distinction in the case of the appellant from that of the others, although in point of fact tto such distinction exists? If I alter the sentence, shall I not be committing the same mistake which has been committed by the High Court in withholding the normal penalty of death for what has been found to be wanton and heartless murder.
' In this wavered state of mind, I have thought it better to err in favour of the condemned- appellant rather than against him, and for the additional reason that he has now been under the agony of a death sentence for a little less than two yeaRs, It is also obvious that in the commission of this crime, he has not acted singly on his own, but has acted under the active influence and with the collaboration of his other two brothers, one of whom is elder and the other younger to him, and both of whom have got away in this crime with a lesser punishment.
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:-
(i) "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 life 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 ID only be proper rather it would be in the interest of justice.
12. There is no denial of the fact that the scope of review in the Criminal Procedure Code is very limited and such an exercise can only be adhered to when there is a legal error on the face of record meaning thereby that the error shall be so apparent and glaring that no Court would permit it to remain a part of the proceedings and such an error must be emanated from the record on the basis of its own existence and not be the result of analytical logic and scrutiny of the evidence.
However, an error apparent on the face of record manifestly be of a nature that, if ignored, complete justice could not be done. Thus, it is clear that in appropriate and suitable cases this Court always exercised its jurisdiction only for the cause of dispensation of justice. In the instant case the petitioner has not only served out one sentence provided under section 302(b), P.P.C. But has also suffered the agonies of his remaining incarcerated in the death cell for a quite long period. In such circumstances, while keeping in view the principle of abundant caution we are of the considered view that the petitioner has made out a case for review of the earlier judgment of this Court.
13. The doctrine of expectancy of life has been dealt with in the case of Maqbool Ahmad and others v. The State (1987 SCM R 1059) wherein this Court, while referring to various judgments on the point has held as under:-- "6. We have considered the above noted contentions in the light of the judgments cited by both sides.
We notice that although at one time the principle of "expectancy of life" which was supposed to have arisen due to passage of time as a result of the delay in the conclusion of trial or in the disposal of the appeal was taken to be a ground for reduction of sentences of persons convicted for murder. But, in view of the changed, circumstances; this Court has in the past about 1-1/2 decades repeatedly held that this theory no longer holds the field and preponderance of authorities now is that detention of the convicts in jails is not by itself a mitigating circumstances entitling the persons convicted for murder to lesser penalty or reduction of sentence; specially when they have acted in a gruesome or cruel manner.
7. In support of the theory of "expectancy of life" Sh. Shaukat Ali Advocate cited Muhammad Ramzan v. The State (PLO 1966 SC 129). In that case the accused who was charged of murder was sentenced by the trial Court to imprisonment for life. But on revision, the High Court enhanced his sentence from imprisonment for life to death after a lapse of nearly three yeaRs, On appeal the Supreme Court, while maintaining the conviction, again reduced the convict's sentence to imprisonment for life. Although it was a case in which there was a mitigating circumstance inasmuch as the murder had been committed to vindicate the honour of the womenfolk of the family, yet while reducing the sentence the Supreme Court also mentioned the "expectancy of life" as one of the reasons for reduction of sentence in the following words:- "Crime was committed on the 30th of September, 1961 four years ago and in the interval, for no less than two years and ten months the convicts were given a full expectation of life".
14. Although the argument of the learned counsel for the complainant not to consider the doctrine of expectancy of life as a mitigating circumstance for lesser penalty, yet, the facts of the instant case are different from the aforesaid case as in that case the convict had not undergone one of the two legal sentences provided under section 302, P.P.C. Whereas in the instant case the petitioner having been incarcerated in the death cell for a quite long time of eighteen years and earning remissions almost for the same period has acquired expectancy of life for which he is entitled in view of the discussions made above to the effect that the intention of the petitioner was not at all to take away the life of the deceased which intention is apparent from his action of having fired a shot on lower part of the body of the deceased, perhaps for threatening him only but un-luckily he could not survive due to the said injury. According to the complainant he was summoned by the petitioner and asked him to return him the land which he purchased from his father and upon his refusal, the petitioner resorted to firing on him. The said stance of the complainant does not sound to reasons as it is not possible that a person who has simply asked the other to return the land duly purchased by him was so rashed that he resorted to deadly firing.
Secondly it is not possible that the petitioner who summoned the deceased for return of the land was sitting there while arming himself with deadly weapon. In fact neither the complainant nor the defence has come forward with the true narration of facts which preceded the incident culminating into the death of a person who otherwise happens to be the paternal uncle of the petitioner. The aforesaid factors provide for mitigation for lesser penalty, as such, we, in the interest of justice, hold that the petitioner has been able to make out a case for lesser sentence.
15.
15. For what has been discussed above, we, while accepting this review petition and reviewing earlier judgment dated 9-10-2007 passed by this Court in Criminal Appeal No,200 of 2003, alter the death sentence of the petitioner into imprisonment for life with benefit under section 382-B, Cr.P.C.
However, the sentence of compensation is not interfered with which shall remain intact as awarded by the learned trial Court and upheld by the Lahore High Court and this Court in its judgments.