TARIQ SALEEM SHEIKH, J.---Through this revision petition under sections 435/439 Cr.P.C. the Petitioner/Complainant seeks enhancement of the sentence of Respondent No. 2 handed down to him by the learned Additional Sessions Judge, Multan, in case FIR No.1/2008 dated 03-01-2 008 registered at Police Station Saddar Multan for an of fence under section 376(1), P .P.C.
2. Brief facts of the case are that on 03-01-2008 the Petitioner/ Complainant, Ghulam Shabbir (PW-1), made a statement before Haider Ali/SI (PW-9) that he went to bazaar to purchase groceries in the morning. At about 2:30 p.m. when he returned home he found his six year-old daughter Shehnaz Bibi missing. He and his wife Zarina Bibi (PW-2) immediately set out in search for her. Shortly they came across PWs Muhammad Aslam and Yasin who told them that they had seen Respondent No.2 going on a bicycle with Shehnaz Bibi. The Petitioner , his wife and the said PWs went in the direction in which Respondent No. 2 had paddled and when they reached near the Government Dispensary they heard the girl's shrieks from the room built at the disposal well. They were alarmed and rushed towards it. As soon as Respondent No. 2 saw them he picked up his shalwar and fled. Shehnaz Bibi was lying there daubed in blood and crying with pain. The Petitioner prayed for legal action against Respondent No. 2 for raping his daughter . Haider Ali/SI reduced his statement to writing and sent the complaint Exh.P A to the police station through Akhtar Mehmood 348/C on the basis of which FIR No. 01/2008 Exh.PC was registered.
Respondent No. 2 was put to trial and the learned Additional Sessions Judge, Multan, vide judgment dated 29-09- 2011, convicted him for an offence under section 376, P.P.C. and sentenced him to rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default thereof to undergo simple imprisonment for a further period of six months. Benefit of section 382-B, Cr.P.C. was, however , extended to him. The Petitioner is aggrieved of the said judgment to the extent of the quantum of sentence. Hence, this petition.
3. The learned counsel for the Petitioner contended that the prosecution had proved its case to the hilt.
Respondent No. 2 had committed a heinous offence for which he was liable to exemplary punishment. The sentence awarded to him was exiguous and injudicious.
4. The learned Deputy Prosecutor General supported this petition.
5. The learned counsel for Respondent No. 2 vehemently opposed this petition and submitted that Respondent No. 2 had served out his entire sentence, including payment of fine, whereafter he was released from jail on 22-12- 2018. At this stage his sentence could not be enhanced. He relied upon Amur Khan and others v. The State and others (2002 SCMR 403), Abdul Haq v. Muhammad Amin alias Manna and others (2004 SCMR 810), Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) and Syed Karam Hussain Shah and others v.
The State and others (2019 MLD 1445 ). On merits the learned counsel contended that Respondent No.2 was juvenile at the time of the incident and his case falls within the General Exception stipulated in section 83, P.P.C.
The learned Additional Sessions Judge had erred in convicting him and this court should quash his conviction in exercise of its revisional jurisdiction.
6. Arguments heard. Record perused.
7. There has been a lot of debate on the question as to whether a convict's sentence can be enhanced after he has served out his legal sentence - the one that is handed down by a court of competent jurisdiction and is in accordance with law for the time being in force and the principles enunciated by the superior courts. However , the court decisions in the matter came mostly in cases in which the State or the complainant sought enhancement of sentence of a convict from life imprisonment to death at a time when he had served out a period in custody equal to or more than the full term of imprisonment for life during pendency of his appeal or revision. It would be advantageous to have a look at some of them.
8. In Muhammad Shari. v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452) the High Court reduced the sentence of a convict from death to life imprisonment. The Hon'ble Supreme Court of Pakistan disapproved it but did not reverse the order for the following reasons: "Having already detailed the facts and circumstances of the case, I would not have hesitated to enhance the sentences of Jeda Tedi, Latif and Nisar but for the reasons that nobody has come forward to prosecute the appeal for enhancement of sentence and all the convicts have already secured their release from the jail after having undergone the entire sentence of life imprisonment inclusive of the remissions earned by them. In consequence, therefore, all the appeals fail and are hereby dismissed."
9. In Mst. Razia Begum v Jahangir and others (PLD 1982 SC 302) the trial court had awarded death penalty to the accused but the High Court did not confirm it and reduced the same to life imprisonment. The Hon'ble Supreme Court held that there were no mitigating circumstances to justify the reduction but refused to enhance the sentence.
It held: "The next question arises whether Jahangir Respondent should now be awarded death sentence, the other alternative on a capital charge. It is not the case of an illegal sentence because the High Court could when maintaining the conviction under section 302, P.P.C. award the lesser sentence namely , imprisonment for life.
According to our finding, however , in the circumstances of this case, the exercise of discretion for awarding the lesser sentence is not based on material on the record. This distinction has been mentioned in order to appreciate the argument advanced on behalf of Jahangir Respondent, namely , that he has already served the sentence of imprisonment for life, therefore, he should not be sentenced to death. The effect of awarding the latter sentence in such a situation would be that the accus ed having served a legal sentence for the same offence, contrary to the demand of justice, would be punished again for the same offence. On factual side, the statement made by the learned counsel for Jahangir Respondent that he has served the sentence, is supported by a certificate which has been placed on record. We accordingly following the rule laid down in Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others [PLD 1976 SC 452] in the circumstances afore-noted, refrai n from awarding the sentence of death to the Respondent, although he deserved it; and, instead, impose a fine Rs.25,000 as enhancement of sentence."
10. In Mst. Promilla and others v. Safeer Ali and others (2000 SCMR 1166) the High Court altered the convict's sentence from death penalty to 14 years rigorous imprisonment which he served out and was released by the jail authorities. The Hon'ble Supreme Court refused to grant leave to the complainant for enhancement of his sentence inter alia on the ground that "both death and imprisonment for life cannot be awarded for the same offence simultaneously ."
11. Promilla's case did not refer to Article 13 of the 'Constitution of Islamic Republic of Pakistan, 1973, for its holding but Bahadur Ali and others v. The State and others (2002 SCMR 93) was more explicit. Relevant excerpt is reproduced hereunder: "Having heard learned counsel for the parties we are of the considered view that since Appellant Bahadur Ali has served out a legal sentence on the charge of Qatl-i-Amd, his appeal as against conviction is disposed of as not pressed. On legal plane it has been the consistent view of this Court that on the charge of Qatl-i-Amd, if a convict has served out a legal sentence of impri sonment for life, appeal seeking enhancement of his sentence to death could not be legally heard as the enhanced sentence, if recorded, would be hit by the doctrine of double jeopardy . It is well settled that as per mandate of Article 13 of the Constitution, no person shall be prosecuted or punished for the same offence more than once; or shall when accused of an offence, be compelled to be a witness against himself."
On the same principle, the complainants' appeals in Amir Khan and others v. The State and others (2002 SCMR 403), Mehrban Khan v. Ghulam Murtaza and others (2006 SCMR 1091 ) and Haji Tahir Hussain v.
Saqlain and others (2008 SCMR 817) were dismissed and leave to appeal was refused in Aziz Muhammad v.
Qamar Iqbal and others (2003 SCMR 579) and Abdul Haq v. Muhammad Amin alias Manna and others (2004 SCMR 810 ).
12. A five-member Bench of the august Supreme Court while hearing a number of connected appeals in the case reported as Abdul Malik and others v. The State and others (PLD 2006 SC 365) inter alia framed the following question for consideration: "(i) Whether the enhancement of sentence of a convict who has already undergone the sentence of life imprisonment during the pendency of appeal/revision would be hit by the principle of double jeopardy enshrined in Article 13 of the Constitution of the Islamic Republic of Pakistan?"
13. The apex Court thoroughly analyzed all the cases mentioned above and laid down the principles enumerated below:
(a) Article 13(a) of our Constitution in its import, and as evolved through the precedent case-law , has the following implications:
(i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.
(ii) A person may not be tried where the offence charged is in effect the same or substantially the same as the one in respect of which he has been previously acquitted or convicted or in respect of which he could be convicted on some previous indictment.
(iii) 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 of fence of which on the indictment the accused could have been found guilty .
(iv) 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 bar a charge of murder if the assaulted person had subsequently died.
(v) 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.
(vi) The conviction or acquittal in the previous proceedings must be enforced at the time of second trial.
(vii) 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 of fence for the second time.
(b) When the conviction or acquittal of a person is under challenge in appeal or revision the proceedings are neither fresh prosecution nor there is any question of second conviction or double jeopardy . It is by now a well1 settled principle of law that an appeal or revision is continuation of trial and any alteration of sentence would not amount to double jeopardy .
(c) To say that an appellate or revisional court cannot enhance the sentence of a convict who during the pendency of the appeal or revision, as the case may be, has undergone the sentence under A challenge is to negate the mandatory provisions relating to the powers of the appellate court under sections 423 and 427 of Cr.P.C. and of the revisional court under sections 435 and 439 of the same Code. Under these provisions the concerned court, seized of the appeal or revision, has the power to annul, to reduce or to enhance the sentence.
(d) The question of sentence is primarily a matter of judicial discretion to be exerc ised in the first instance by the trial court. The court of appeal can enhance the sentence if the same is found to be inadequate or not in accord with judicial principles laid down by superior courts in this regard. But as the Supreme Court has held in Zarin v.
The State [1976 SCMR 359] it will depend on circumstances of that case and it would be undesirable to lay a principle of general application.
(e) These are mere guidelines and their application would depend on each case. The cases entailing capital charge are to be decided with utmost care. When law vests a discretion in courts to award sentence of death or life imprisonment, it casts a heavy duty to balance the various considerations which underlie these sentencing provisions. The circumstances surroundin g the offence, the question of mens rea, the principle of proportionality of sentence, of the gravity of the offence charged, the considerations of prevention or of deterrence and of rehabilitation may also be kept in view if the circumstances of the cases and the law applicable so warrant.
(f) There is no rule of general applicatio n that the serving out of sentence during the pendency of appeal or revision, by itself, would constitute a bar for enhancement of sentence or that any exercise to that effect would be violative of Article 13 of the Constitution. This could be one factor which the court may take into consideration while deciding the question of enhancement.
(g) In view of the chronic delays in trial and disposal of appeals as also the deliberate tactics of convicts to delay the proceedings in order to escape the gallows, there has been a shift in the trend of the Supreme Court in respect of the doctrine of expectancy of life. This doctrine is now rarely and exceptionally invoked.
14k. In Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) the Hon'ble Supreme Court again held that Article 13 of the Constitution and the doctrine of expectancy of life prohibited the court from imposing sentence of death on a convict who had suf fered life imprisonment.
15. The above-mentioned issue once again came up for consideration before the Hon'ble Supreme Court in Hassan and others v. The State and others (PLD 2013 SC 793). The occurrence took place on 13-6-1986 and Hassan and Sikandar were convicted and sentenced to death by the trial court in 1991. The High Court confirmed their sentence in 1999 against which the Supreme Court granted leave to appeal in 2004. By the time their appeal came up for hearing in 2013 they had spent more than 25 years in jail out of which about 22 years were in death cells. At that stage the appellants' counsel did not press their appeal to the extent of conviction but, invoking the concept of double jeopardy , the principle of expectancy of life and the Fundamental Right guaranteed under Article 13(a) of the Constitution, argued that in the circumstances of the case their sentence of death should not be affirmed and reduced to life imprisonment. The Supreme Court ruled that the appellants deserved leniency because there were some extenuating circumstances and the principle of expectancy of life also applied.
Accordingly , it reduced their sentence and in doing so enunciated the following principles:
(i) The principles of autrefois acquit and autrefois convict contained in section 403(1), Cr.P.C. have no relevance to a case wherein the question under consideration in an appeal is not as to whether a new trial of the convict should be held or not but the issue is as to which sentence would be the appropriate sentence for a convict.
(ii) The case of lftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) was decided by a three- member Bench of [the Supreme] Court whereas the afore-quoted case of Abdul Malik and others v. The State and others (PLD 2006 SC 365) was decided by a five-member Bench of the Court. In such a situation usually the view expressed by a Bench of greater numerical strength is to be followed.
(iii) In a case wherein the convict sentenced to imprisonment for life has already served out his entire sentence of imprisonment for life there the court may not, in its discretion, enhance his sentence of imprisonment for life to2 3 death and while considering the issue of such enhancement of sentence the court may, as per the judgment rendered in the case of Abdul Malik and others v. The State and others (PLD 2006 SC 365), consider the provisions of Article 13(a) of the Constitution along with the other factors for deciding whether the sentence of imprisonment for life passed against the convict may be enhanced to death or not.
(iv) The following principles of practice are being followed by the courts of this country in respect of the principle of expectancy of life:
(a) In a case where delay is occasioned in final disposition of a legal remedy being pursued by a convict sentenced to death on a charge of murder and where the undergone period of his incarceration is less than that of a term of imprisonment for life there the principle of expectancy of life for its use for the purpose of reduction of the sentence of death to imprisonment for life stands abandoned by the courts of this country .
(b) In a case where the State or the complainant party is seeking enhancement of a sentence of imprisonment for life of a convict to death and before or during the pendency of such recourse the convict serves out his entire sentence of imprisonment for life and he has, or has not yet, been released from the jail there the principle of expectancy of life is still relevant for not enhancing the sentence of imprisonment for life to death. Article 13(a) of the Constitution is not directly relevant to such a situation but the spirit of that Article may be considered in such a case as a factor along with the other factors like expectancy of life and the facts and circumstances of the case etc. for not enhancing the sentence of imprisonment for life to death at such a late stage.
(c) In a case where a convict sentenced to death undergoes a period of custody equal to or more than a full term of imprisonment for life during the pendency of his judicial remedy against his conviction and sentence of death there the principle of expectancy of life may be a relevant factor to be considered along with the other factors for reducing his sentence of death to imprisonment for life.
16. The above-mentioned judgments, as indicated earlier , came in a slightly different context but their ratio applies to the present case. The argument that this court cannot enhance the sentence of Respondent No.2 because he has served out the one handed down by the learned Additional Sessions Judge is fallacious.
17. Now I turn to the merits. The prosecution case is that on 3-1-2008 Respondent No.2 ravished Complainant's six-year-old daughter Shehnaz Bibi. Complainant Ghulam Shabbir (PW-1), Zarina Bibi (PW-2), Muhammad Aslam (PW-3), Yasin (PW-4) and the victim, Shehnaz Bibi (PW-8), furnished ocular account of the incident. They were coherent and there was no material discrepancy in their statements and the medical evidence furnished by Dr. Mushtaq Ahmad (PV-11) fully corroborated them. Therefore, in my opinion, the learned Additional Sessions Judge has rightly convicted Respondent No.2 under section 376, P .P.C.
18. Admittedly , Respondent No.2 was a juvenile at the time of occurrence. The medical board constituted by the learned trial court determined his age between 14 and 15 years. The learned counsel for Respondent No.2 contended that the board's assessment of age of a person was tentative and there was always a margin of error of one to two years. If that allowance was given to him, his age was 13 to 14 years at the relevant time and his case would fall within the ambit of section 83, P.P.C. which postulates that nothing is an offence that is done by a child above seven years of age and under fourteen if he has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It is observed that section 83, P.P.C. originally created the aforesaid exception in respect of children in the age group of seven and twelve years. The Criminal Law (Second Amendment) Act X of 2016 altered that age bracket to 10-14 years. The occurrence in the instant case took place on 3-1-2008. There may be a question as to whether the said amendment can be applied retrospectively but it is not necessary to decide it in these proceedings because the exception under section 83 can only be invoked if the accused proves that he had not attained sufficient maturity at the relevant time for which the onus is always on him. Respondent No.2 neither raised this defence during the trial nor led any evidence in respect thereof.
19. Section 376, P.P.C. was amended by the Criminal Law (Amendment) (Offence s Relating to Rape) Act (XLIV of 2016). It read as under when FIR No. 1/2008 of the present case was registered:
376. Punishment for rape.--- Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
20. The learned Additional Sessions Judge sentenced Respondent No.2 to ten years rigorous imprisonment which was legal under the law then in force. Since Respondent No.2 was a juvenile at the time when he committed the offence, he was justified in dealing with him leniently . In Abdul Malik and others v. The State and others (PLD 2006 SC 365) the Supreme Court approvingly cited R. v. Newsome and Browne, 1970 (2) QB 711, in which the U.K. Court of Appeal held that the sentence of a convict could be enhanced on the following four grounds:
(i) Where the sentence was not justified by law;
(ii) Where a person was sentenced upon a wrong factual basis;
(iii) Where matters improperly taken into consideration or fresh matters to be taken into account;
(iv) Where the sentence is manifestly excessive or wrong in principle.
21. While approving the above the Hon'ble Supreme Court added a caveat that they were mere guidelines and their application would depend on each case. The courts must act judiciously and take into account all the relevant considerations while deciding the quantum of sentence.
22. The learned counsel for the Petitioner has failed to persuade this Court that the learned Additional Sessions- Judge has exercised his discretion perversely while sentencing Respondent No.2. No case for interference is made out. Hence, this petition is dismissed. Reproduced as nearly as possible in the language of the Court. See paragraph 14 of this judgment. See paragraphs 12 and 13 of this judgment.