AAMER FAROOQ, C.J. The instant criminal revision seeks enhancement of sentence of life awarded to respondents Nos. 2 to 4 by the learned Trial Court vide judgment dated 18.10.2022 in case FIR No.239/2016 dated 15.08.2016 under Sections 302, 324, 148, 149, 337-F(III) and 427 Pakistan Penal Code, 1860, (P.P.C.), Police Station Shalimar, Islamabad.
2. Learned counsel for the petitioner, inter alia, contended that while trying the abovementioned case the learned Trial Court rightly concluded that the respondents are guilty of the offence under Section 302(b), P.P.C.; however, awarded the lesser sentence of life imprisonment instead of capital punishment. In this regard, he submitted that the plain reading of Section 302(b), P.P.C. shows that the Court has option either to award death sentence or life imprisonment where a person is found guilty of qatl-e-amd under ta'zir; however, it was contended that the discretion to award lesser sentence cannot and is not to be exercised whimsically and should only be done where there are mitigating, circumstances. In support of his contentions learned counsel placed reliance on various pronouncements. [[1]]. Learned counsel further made reference to Section 367(5) of Code of Criminal Procedure, 1898, (Cr.P.C.) which provides that if the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than the death, the Court shall in its judgment state the reasons why sentence of death was not passed.
Learned counsel then took the Court through judgment of learned Trial Court to substantiate that no mitigating circumstances exist which call for lesser sentence in the facts and circumstances.
3. Submissions made by the learned counsel for the petitioner have been heard with utmost care and the judgment of the learned Trial Court as well as the case law cited at bar examined with his able assistance.
4. As noted above, respondents Nos. 2 to 4 were indicted in the afore-noted case and convicted in the abovementioned charges, especially 302(b), P.P.C. but awarded life sentence. In this regard Section 302(b), P.P.C. provides that in case if a person is found guilty he may be awarded death sentence as ta'zir or life imprisonment. Naturally, out of the two punishments provided in the referred law life sentence is the lesser punishment. The basis for exercise of jurisdiction by awarding lesser sentence and not to opt for the more serious punishment was propounded in Abdus Salam v. The State (2000 SCMR 338), Hon'ble Mr. Justice Nasir Aslam Zahid (as he then was) penning the opinion for the Court observed that the punishment of qatl-e-amd as ta'zir under Section 302(b), P.P.C. is either death or imprisonment for life but this does not follow that the Court has absolute discretion to award either of the two sentences. It was observed that the normal sentence for qatl-e-amd as ta'zir is death; the Court however, has discretion to award lesser sentence of life imprisonment in case there are mitigating circumstances. His lordship (as he then was) went on to opine that such discretion is neither uncontrolled nor it is to be exercised arbitrarily. It is to be exercised judiciously. The Court after reaching the conclusion that the accused is guilty of qatl-e-amd can award lesser sentence of life imprisonment provided the Court records reasons for awarding such lesser sentence i.e. mitigating circumstances on account of which a case is made out for not awarding normal sentence of death. In another decision by the Hon'ble Federal Shariat Court in case titled Azmat Khan v. The State (2022 YLR 1158) it was observed that the opinion of the Court that provisions of Section 367 of the Code are not permissive but are imperative and compliance of its terms is mandatory. The Federal Shariat Court laid down the criteria for a good judgment in a very eloquent manner which though was pertinent to the criminal cases in Hadd but in my opinion should form basis for every judgment either on criminal or civil side. The Court observed as follows: "The characteristic of a good judgment is that it must be self-evident and self-explanatory, in other words, it must contain the reasons that justify the conclusion arrived at and these reasons should be such that a disinterested reader can find it convincing or atleast reasonable and the law never allows the judge to make departure from the mandatory procedure and to ignore settled principle of law. And, thus the learned Trial Judge was left with no other option but to make legal determination of the offence, following the mandatory provisions of law. Patently the learned Trial Judge was not alive to the law and he without applying his conscious judicious mind has awarded sentence of life imprisonment as Ta'zir under section 17(4) of the Ordinance to the appellant and that too by holding that the requirements of section 7 of the Ordinance for awarding conviction to the accused under "Hadd" are missing, despite the fact that section 17(4) of the Ordinance does not provide any other sentence except the death sentence as "Hadd" as discussed supra; and he has also not specified in the impugned judgment the reasons and or mitigating circumstances for awarding lesser punishment of imprisonment of life as mandated by the provisions of section 367(5) of the Code, which legally he was not competent to do so and that being completely in negation of the mandate of the law, having been impliedly prohibited, cannot be approved as is held by the Hon'ble Supreme Court of Pakistan in case of Muhammad Ismail supra. And, thus the impugned judgment, which is violative of the mandatory provisions of the law and procedure, suffering from incurable defects, as discussed supra, is not sustainable in law, therefore we refrain ourselves from dilating upon the merits of the case, lest it may prejudice case of the either side."
5. The other judgments cited at bar by the learned counsel for the petitioner cite examples where the Courts have propounded various mitigating circumstances to award lesser sentence in the facts and circumstances and not opted for death sentence. On the touchstone of the above law when the judgment in question is examined the learned Trial Court has lucidly and elaborately dealt with all the issues and on the various aspects of the prosecution case has gone on to hold that the prosecution has proven its case beyond reasonable doubt by placing reliance on the ocular account, medical evidence, recovery as well as motive. However, while recording conviction and awarding sentence has in just one sentence opted for lesser sentence on the basis of mitigating circumstances in the case without dilating the facts as to the referred circumstances.
The judgment in such state of affairs is naturally violative of Section 367(5), Cr.P.C. as well as the law propounded by the Superior Courts of the country on the option of the Court to award lesser sentence under Section 302(b), P.P.C. In view of the foregoing I am inclined to issue notice to the respondents.
6. Office is directed to issue notice to the respondents. Since the matter after issuance of notice shall be heard by the Division Bench of this Court, let the office do the needful by fixing the instant criminal revision as well as connected appeals i.e. Criminal Appeal No.382/2022, Criminal Appeal No.383/2022 and Criminal Appeal No.386/2022 before the Division, Bench of this Court.
1. Abdul Salam v. The State (2000 SCMR 338), Azmat Khan v. The State (2022 YLR 1158), Muhammad Aslam v. The State and another (PLD 2009 SC 777), Muhammad Ahmed and another v. The State (2010 SCMR 660), Sholo v. The State (2021 MLD 1577), Muhammad Ilyas v.
Muhammad Sufian (PLD 2001 Supreme Court 465), Mst. Sabeeha v. Ibrar and others (2012 SCMR 74), Ghulam Abbas v. The State (2008 SCMR 1352), Waris Ali v. The State (1999 SCMR 1469), Noor Muhammad v. The State (1999 SCMR 2722), Talib Hussain and others v. The State (1995 SCMR 1776), Nabi Baksh and others v. The State and another (1999 SCMR 1972), Miss Najiba and another v. Ahmed Sultan and others (2001 SCMR 988), Piran Ditta and 3 others v. The State (PLD 1976 Supreme Court 300) and Abdul Salam v. The State (2000 SCMR 338).