SH. AZMAT SAEED, J. --- Through this common judgment, we intend to dispose of Criminal Appeal No, 415 of 2010, filed by Appellant Hamid Mehmood and.Jail Petition No, 90 of 2012, preferred by petitioner Muhammad Irfan, as both have arisen from a single judgment dated 05.03.2010 of the learned Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Criminal Appeals No, 51 & 52(ATA) of 2006 and Murder Reference No, 11(ATA) of 2006.
2. The brief facts of the case are that on 19.10.2004 at about 7:20 p.m. complainant Mazhar Ali Azhar (PW-3) proceeded to the neighbouring Mosque to offer his "Esha & Taraveeh" prayers and at that time, his minor son Ali Raza, aged about 10 years, also followed him. When at 9:00 p.m. the complainant after offering his prayers returned to his house, his son All Raza was not present there.
On inquiry, his family members disclosed that Ali Raza had followed him, while he was going towards the Mosque. Thereafter, the complainant carried out a search for his minor son in the area of the locality but whereabouts of his son could not be traced. As a. consequence,, he made a written complaint (Exh-PC) in the Police Station, City Chishtian, showing his strong suspicion that his son All Raza might have been abducted for commission of an un-natural offence or for murder.
The written complaint was registered as F.I.R. No, 394/2004 (Exh-PC/1) initially under Section 364-A, PPC but later on Sections 365-A, PPC & 7 of Anti-Terrorism Act, 1997, were added. Ghulam Murtaza, Inspector/SHO Police Station, City Chishtian, after registration, started investigation of the case.
At about 11.00 p.m. on the same day, the complainant received a message on his Mobile phone No, 0300-6980093 from telephone No, 0631-79531 that "Ali is in our custody, pay Rs, 10,00.000/- whereafter he (Ali Raza) would be left to go otherwise would be killed." The amount of ransom was asked to be brought at "Railway Phattak" near Sugar Mills Road, Chistian at 1:00 a.m. and the message was delivered. from telephone No, 0631-79531 (Bahawalnagar). Upon receiving such information, the police started search for the abductee in the locality.
Meanwhile, witnesses Muhammad Shahzad Afzal (PW-4) and Muhammad Arshad (not produced) joined the investigation and stated that on 19.10.2004, while they were passing through "Baldia Colony", Chishtian, they happened to see Ali Raza, abductee (now deceased) in the company of accused Hamed Mahmood and Muhammad Irfan on a motorcycle.
On 20.10.2004 at about 9:45 a.m., the police received information from the Principal, Degree College, Chishtian. that a dead-body of a boy, aged about 10/11 years, was lying in the plot of the said College. On this information. Ghulam Murtaza, Inspector (PW-15) informed the complainant and rushed to the spot. The complainant alongwith witnesses also rushed there and identified the dead-body as that of his minor son Ali Raza, who appeared to have been murdered by strangulating with his shirt. Accordingly, Sections 302/34, PPC, were also added.
During the investigation, it was revealed that on 26.10.2004. both the accused appeared at the Dera of Haji MI* Mahmood (local MPA) and in presence of Muhammad Saeed Jatt, they confessed their guilt by stating that they had abducted Ali Raza for the purpose of ransom and then murdered him.
The accused was arrested by the 1.0. on 30.10.2004. The I.O. also recovered incriminating articles at the instance of the accused, which were taken into possession.
An identification parade was also held by the police to identify the foot prints of two accused under the supervision, of Mr. Zakaullah Bajwa, Special Judicial Magistrate (PW-17), On receipt of identification proceedings, the accused were sent to judicial lock-up and after completion of usual investigation, the challan was submitted to the learned Anti-Terrorism Court, Bahawalpur.
3. On receipt of the challan, accused Muhammad Irfan took the plea of being juvenile. The then learned Judge, Anti-Terrorism Court, after adopting all legal formalities, declared accused Muhammad Irfan juvenile and, as such the police was directed to submit a separate challan, in respect of said accused, under the Juvenile Justice System Ordinance, 2000.
4. At the trial, the prosecution in order to prove its case, examined seventeen witnesses in each case. The statements of the accused under Section 342, Cr.P.C. were recorded in which they pleaded their innocence. However, Appellant Hamed Mahmood produced three witnesses and tendered some documents in his defence. None of the accused opted to record their statements on oath, as envisaged under Section 340(2), Cr.P.C. though Appellant Hamid Mahmood in his statement recorded under Section 342, Cr.P.C. opted to record his statement wider Section 340(2), Cr.P.C. but later on, after producing the defence evidence, he decided not to appear, as his own witness.
5. The learned Anti-Terrorism Court, after conclusion of the trial, convicted the accused/appellant Hamid Mahmood and sentenced him, as follows:--- Under Section 365-A/34, PPC Imprisonment for life with forfeiture of entire property.
Under Section 302(b)/34; PPC death sentence and to pay an amount of Rs, 1,00,000/- to the legal heir of the deceased as compensation in default whereof further six months' S.I.
Under Section 7-A of ATA read with Section 34, PPC Death sentence and to pay an amount of Rs, 1,00,000/- as fine in default whereof further six months'. R.I.
6. Petitioner Muhammad Irfan was tried by the learned Juvenile Court and was convicted and sentenced as under:-- Under Section 365-A/34, PPC Imprisonment for life with forfeiture of entire property.
Under Section 302(b)/34, PPC imprisonment for life and to pay an amount of Rs, 1,00,000/- to the legal heirs of the deceased as compensation in default whereof further six months S.I.
Under Section 7-A of ATA read with Section 34, PPC imprisonment for life and to pay an amount of Rs, 1,00,000/- as fine in default whereof . further six months' S.I.
All the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C."
7. The learned Trial Court also forwarded a Murder Reference for confirmation or otherwise of death sentence of Hamid Mehmood Appellant.
8. The accused, being aggrieved with the judgment of the learned Trial Court, filed the above-said Criminal Appeals before the learned High Court. However, the same, by maintaining the convictions and sentences awarded to them by the learned Trial Court, were dismissed and the Murder Reference filed, for confirmation of death sentence of Appellant Hamid Mahmood, was confirmed.
9. Leave to appeal was granted in the Criminal Appeal No, 415 of 2010, filed by Appellant Hamid Mahmood, vide order dated 4.10.2010 in the following terms:--- "4. The learned counsel for the petitioner having extensively argued the case on merits; submitted that the entire prosecution case rests on circumstantial pieces of evidence, such as; extra-judicial confession, last seen evidence, telephonic conversation, recovery of dead-body and articles of the deceased. The learned counsel submitted that there is no evidence on record with regard to the transfer of ransom amount.. No motive attributed for committing Qatl-e-Amd of abductee (minor aged about 10 years) nor direct evidence .with regard to the committing of Qati-e-Amd was led; however, on reconsideration of the peculiar facts and circumstances of the case, the learned counsel does not press this jail petition on merits except to question the quantum of sentence.
5. Having considered the submissions in the light of the judgment gone through with his assistance, we deem it appropriate to grant leave only to the extent of quantum of death penalty, confirmed vide impugned judgment."
10. Petitioner Muhammad Man, also filed Jail Petition No, 90 of 2012, which is barred by 717 days.
11. We have heard the learned counsel for the Appellant and the learned Additional Prosecutor General and have also perused the record.
12. Adverting first to the Jail Petition No, 90 of 2012, filed by Petitioner Muhammad Irfan, the prosecution produced Muhammad Shahzad Afzal (PW-4), who saw the deceased with the accused on 19.10.2004 on a motorcycle. This was the last time when the deceased was seen alive.
The said witness, who was neither related to the complainant nor inimically deposed towards the accused-and his evidence was believed by the learned Trial Court as well as by the learned High Court. The Extra-Judicial Confession of the accused was proved on record through the statement of Muhammad Tahir (PW-8), who too not an interested witness. The telephonic call demanding ransom was traced and proved to have been made from a Public Call Office, operated by Abdul Qayyum (PW-6), who stated that he saw the accused at the relevant time of making such call. The said witness is also neither related to the complainant nor can be stated to be an interested witness. The recovery was also proved through the cogent evidence. The evidence produced by the prosecution, which was believed by the learned Trial Court and the learned High Court, was reappraised by this Court and we are not persuaded to take a different view of the matter. The Jail Petition No, 90 of 2012 is without merit.
13.In support of his contention for reduction of death sentence to the sentence of life imprisonment of Appellant Hamid Mahmood, Mr. Asad Manzoor Butt, the learned counsel for the Appellant contended that the sentence: of life imprisonment is a legal sentence, which could have been awarded to the Appellant and such a sentence has in fact been already undergone, therefore, it would be in the interest of justice to reduce the death sentence to life imprisonment. In this behalf, learned counsel relied upon the Doctrine of Expectancy of Life. He further contended that in the above circumstances, carrying out now the death sentence would amount to double jeopardy, inasmuch as, the Appellant would be required to suffer both sentences i,e. imprisonment for life and death sentence. The learned counsel added that there is no ocular evidence and that the conviction is based only on circumstantial evidence, therefore, the death sentence could have not been awarded.
14.Adverting first to the contention of the learned counsel that in view of the fact that the Appellant (Hamid Mahmood) has already served out a substantial portion of his life term, therefore, his sentence of death on two counts be converted into life imprisonment on the basis of Doctrine of Expectancy of Life. A similar issue came up before this Court in the judgment, reported as Muhammad Ilyas and another v. Muhammad Sufian and another (PLD 2001 SC 465) and this Court, inter alia, examined, referred and relied upon the judgments, reported as Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452), The State v. Rab Nawaz and another (PLD 1974 SC 87), Abdus Sattar v. Muhammad Anwar and 6 others (PLD 1974 SC 266), Asadullah v. Muhammad Ali and 5 others (PLD 1971 SC 541) and Mst. Nuran v. Nura and another (PLD 1975 SC 174) and drew the following conclusion:--- "We have not persuaded to agree with learned ASC on behalf of the convict/respondent that the convict/respondent has already undergone the sentence awarded by the learned Appellate Court and accordingly at this belated stage the judgment of the Trial Court could not be restored in view of the Doctrine of Expectancy of Life for the reason that "as regards the doctrine of expectancy of .life, in view of the chronic delays in committal, trial and disposal of appeals as also the deliberate tactics of the convicts to delay the proceedings in order to escape the gallows there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v. Muhammad Ali
(1) Muhammad Khan v. Dost Muhammad (2) and Mst. Razia Begum v. Hijrayat Ali and 3 others (3) and the doctrne like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court." Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452); The State v. Rab Nawaz and another (PLD 1974 SC 87); Abdus Sattar v. Muhammad Anwar and 6 others (PLD 1974 SC 266); Asadullah v. Muhammad Ali and 5 others (PLD 1971 SC 541); and Mst. Nuran v. Nura and another (PLD 1975 SC 174)."
15. A similar view was also held, by this Court in the judgments, reported as Moazam Shah v.
Mohsan Shah and another (1995 SCM R 1190) and Khurram Malik and others v. The State and others (PLD 2006 SC 354).
16. The aforesaid view was re-affirmed by this Court in the case of Abdul Malik and others v: The State and others (PLD 2006 SC 365) wherein a large number of petitions, inter alia, involving a similar question of law was adjudicated upon. In the said judgment Abdul Malik and others (Supra), it was also concluded that at best, the period already spent in prison is one of the multiple factors to be taken into consideration for enhancing or awarding the death sentence in a case, involving a murder.
17. The contention of the learned counsel is that the confirmation of death sentence, at this stage, would amount to be double jeopardy is totally unfounded, as it has been conclusively held by this Court, in the case of Abdul Malik and others (Supra), that:---'
''... The genesis of this provision can be traced to the English Common Law rule "nemo debet bis vexari", which in literal sense means that a person may not be put twice in peril for the same offence. This principle by now has come to assume a universal application and is found in constitutions of most of the countries. Reference to few would be in order. In U.S.A. this principle is couched in the 5th amendment of the Constitution which mandates. "nor shall any person be.................- subject for the same offence to be twice put in jeopardy of life or limb." In England this principle was evolved in Common Law and Blackstone describe it as, "this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." In India the provision is found in sub-Article (2) of Article 20 which reads, "no person shall be prosecuted and punished for the same offence more than once." Article 39 of the Constitution of Japan provides that, "no person shall be held criminally liable in any act of which he has been acquitted nor shall he in any way be placed in double jeopardy". Article 14.7 of the U.N Covenant on Civil & Political Rights, 1966 embodies the same principle and mandates. "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".
14. This almost universally accepted principle and as enshrined in Article 13(a) of our Constitution in its import and as evolved through the precedent case-law, has following implications:-
(i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.
(ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted.
(iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could on some previous indictment, have been convicted.
(iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment the accused could have been found guilty.
(v) The offence charged in the second indictment must have been committed at the time of the first charge i,e. a conviction or acquittal for an assault will not bat a charge of murder if the assaulted person later died.
(vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction.
(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.
(viii) The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time.
18. An attempt has also been made by the learned counsel to contend that the sentence of death could not be awarded only on circumstantial evidence. In the case of Sh. Muhammad Amjad v. The State (PLD 2003 SC 704), it was held that:-- "According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
Rehmat alias Rehman alias Waryam alias Badshah v.The State PLD 1977 SC 515; Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCM R 1416; Jafar Ali v. The State 1995 SCMR 2669; Mst. Robin Bibi v.
The State 2001 SCM R 1914; Charan Singh v. The State of Uttar Pradesh AIR 1967 SC 520; Pohalya Motya Valvi v. State of Maharashtra AIR 1979 SC 1949; Kishore Chand v. State of Himachal Pradesh AIR 1990 SC 2140 and Laxman Naik v. State of Orisa AIR 1995 SC 1387 quoted."
In the case, reported as Muhammad Latif v. The State (PLD 2008 SC 503), it was held by this Court, as follows:-- "11. As far the contention of the learned counsel that upon circumstantial evidence, one cannot be convicted and awarded the penalty of death, this plea is also misconceived because there is no bar or hindrance to pass the sentence upon a killer of three human beings when the chain of guilt is found not to be broken and irresistible conclusion of the guilt is surfacing from the evidence, which is connecting the accused with the commission of that offence without any doubt or suspicion. If the circumstantial evidence brought on the record is of such nature than the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the accused, penalty of death or life imprisonment shall be a normal event. The following judgments can be cited with benefits for this proposition:--- Khuda Bukhsh v. The State 2004 SCM R 331; Faisal v. The State 2007 SCM R 58; Sheraz Tufail v. The State 2007 SCM R 518; Israr Ali v. The State 2007 SCM R 525; Binyamin alias Khari and others v. The State 2007 SCMR 78; Ghulam Nabi v. The State 2007 SCM R 808 and Muhammad Akhtar v. The State 2007 SCM R 876.
19. The irresistible conclusion that is drawn from the above discussion is that the period of time already served by a convict under a sentence of death is certainly one of the numerous factors to be taken into account, while confirming the death sentence but it is neither the only nor the decisive consideration. Such is the consistent view of this Court, as is apparent from the judgment referred to herein above. 'It would be neither appropriate nor just to couch the said proposition in mathematical terms as to the number of years spent in confinement by the convict. On the one hand, it would grant premium to an accused to delay the proceedings so as to escape the gallows.
Incidentally in the instant case, the Appellant has been awarded two death sentences and one life term.
20. In the instant case, the accused were involved in a brutal murder of a young boy who had been kidnapped by them for ransom. The accused persons were well-known to the abductee, hence; apparently the accused had no intention of ever releasing the abductee on the receipt of ransom to avoid the risk of identification and capture. A heinous crime has been committed, which is a factor to be taken into consideration for determination of the sentence to be awarded and in the cases of brutal premeditated murder of a young child, death sentence appears to be appropriate, as has been held by this Court in the case, reported as Talib Hussain v. The State (1995 SCM R 1538).
In the said case on account of the murder of a young boy, the sentence of life imprisonment was enhanced to sentence of death.
21. Deterrence is a factor to be taken into consideration, while awarding the sentence specially, the sentence of death and in this behalf, reference can be made to the judgment of this Court, reported as Khurram Malik and others v. The State and others (PLD 2006 SC 354), wherein it was held that:--- "... It is also to be noted that justice is not for one but is for all and while examining the case of convict, the Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well, thus the sentence should be such which should serve as deterrent for the like-minded person as observed in the case of Muhammad Saleem v.
The State PLD 2002 SC 558, State v. Farhan All PLD 1995 SC 1."
22. In law, the sentence of death awarded by the learned Trial Court is subject to confirmation by way of a murder reference. The convictions and sentences are subjected to appeals with or without leave of the Court. An accused when tried and convicted to death is not only entitled to have the matter re-examined through a murder reference but also has a right to appeal and during the entire legal process till its final conclusion before the learned High Court or this Court, the process does not loose its essential feature of a person being tried once on the same offence, as the murder reference and the appeal are in law the continuation of a trial, thus, there is no question of double jeopardy prohibited by Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 read with Section 403, Cr. P.C.
23. Similarly, the nature of the evidence produced at the trial is relevant primarily for the purpose of determining the guilt or innocence of the accused and no sentenced to be awarded No rule exists that the sentence of death cannot be awarded in the absence of direct ocular evidence, if the guilt of me accused has been proved beyond reasonable doubt through circumstantial and forensic evidence.
24. The overall features of the occurrence, the nature of offence and the events leading thereto, including the motives etc. are relevant to the extent permitted by law.
25. In the facts and circumstances of the case, the considerations pertaining to quantum of sentence, have been examined. The reasons for the award of the death penalty far out weight the considerations for the award of lesser sentence. The tender age of the minor, the brutal and heinous nature of the crime and pre-meditation persuades us to agree with the sentence awarded by the learned Trial Court as well as the learned High Court. The deterrent aspect of the sentence cannot be lost sight of either as it was a crime of kidnapping for ransom of minor, followed by murder. In such an eventuality, the normal sentence of death should be awarded and the Court should neither hesitate nor search for laboured pretexts to award a lesser sentence; as has been held by this Court, in the case, reported as Muhammad Sharif (Supra).
26.Consequently, Criminal Appeal No, 415 of 2010 is dismissed and Jail Petition No, 90 of 2012 is also dismissed and leave declined.