ASLAM RIAZ HUSSAIN, J.-- This judgment will dispose of four appeals namely Criminal Appeals Nos. 123, 124, 126 and 127 of 1986, as they involve the determination of the same question.
2. The accused in all the above noted appeals were convicted to death under section 302, P.P.C.
Their appeals were dismissed by the High Court; where after they filed petitions in the above noted appeals. All of them have remained in the death cell for a number of years due to delay in the disposal of their appeals.
3. The contentions raised before the Bench hearing the petitions was that the very fact that they have remained in the death cell for a long period should be taken to be a mitigating circumstance entitling them to reduction of sentence of death awarded to each of them under, section 302, P.P.C to imprisonment for life.
Leave was granted to consider this question in all the above-noted cases. All the appeals have come up for hearing together and are being disposed of by a single judgment.
3-A. The main arguments were advanced by Sh. Shaukat A.I, Advocate in Criminal Appeal No.124 of 1986. He cited some authorities in support of the proposition that mere passage of a long time between the conclusion of the trial and the disposal of the final appeal is enough to give the accused "expectancy of life" and that his detention in the death cell during this period is by itself sufficient to entitle them to the lesser sentence under Section 302, P.P.C.
We may add-in fairness to the learned counsel that in order to assist the Court he also cited some judgments against the proposition canvassed by him.
4. The learned counsel for the appellants in other appeals adopted the arguments advanced by Sh. Shaukat A.I, Advocate.
5. Mr. S.M. Zubair, Assistant Advocate-General appearing for the State opposed the above noted contention and also cited some judgments to the effect that prolonged detention of the person convicted of an offence under section 302, 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 entitle him to the lesser penalty under Section 302, P.P.C. Or for the reduction of his sentence.
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 l -- 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 circumstance 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 A.I Advocate cited Muhammad Ramzan v. The State (PLD 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 honor 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. But a few years later in the case of Siddiq v. The State (1970 SCM R 288), this Court changed the afore-mentioned view in the light of the changed circumstances and held as follows:- "Mr. R . A . Jermy appearing for the appellant urged that as 31/2 years have passed since the crime was committed, it is a fit case for reduction in the sentence. We are unable to agree with the counsel as delay in the disposal of cases has now become a normal feature of the administration of criminal justice in the province. The appellant may, however, approach the Government by a petition under section 401 of the Code of Criminal Procedure for commutation of sentence."
It may be mentioned that even as early as 1951, the Federal Court of Pakistan had expressed the same view as taken by this Court in Siddiq's case (supra) namely that merely in such cases it was up to the Government to consider the question of commutation of sentence. In the case of Intizam Hussain vs. The Crown (PLD 1951 FC 142) where the accused petitioner had been sentenced to death under section 302 P.P.C, his counsel after arguing the case on merits urged in the alternative that the sentence of death passed on the accused petitioner should be reduced on the ground that it had been passed far back as 25-3-1949 and ought not to be executed after such a long delay. He also urged that a Division Bench of the Chief Court of Sind which had dismissed the petitioner---s appeal was inclined to reduce the sentence but refrained on the erroneous assumption that it was not competent to do so. The Federal Court, however, refused to reduce the sentence and observed as follows:- "There has been a great delay in the disposal of this appeal on account of the delay in the printing of the paper book, but this is not a matter which this Court can properly take into consideration in reducing the sentence .... ....We are of opinion that the question of commutation of sentence of death on the ground of delay in its execution is not a matter which should be taken into consideration by this Court-There has been no illegality in the sentence, and therefore, on the present petition for leave to appeal, it is not for this Court to decide whether or not the sentence of death imposed on the petitioner should be commuted to one of transportation for life in the existing circumstances. We think, however, that the proper course for the petitioner, now is to approach executive authorities under section 401 or 402-A of the Criminal Procedure Code."
Again in Asadullah v. Muhammad A.I and 5 others PLD 1971 SC 541, where the trial Court had convicted the accused person under section 302, P.P.C. And sentenced them to death but the High Court had acquitted them of the charge, this Court after granting leave to the complainant (who had moved the Supreme Court through a petition for special leave to appeal), reversed the judgment of the High Court and set aside the acquittal of the accused. Their counsel then urged that they should at least be awarded the lesser penalty because passage of long time, since their acquittal by the High Court had given them an expectancy of life. But this plea was rejected by this Court with the following observations:- "In some reported cases this Court has refrained from inflicting death sentence on ground of delay, yet there is no universal rule that if the subordinate Court has on an erroneous or perverse view acquitted an accused person resulting in grave miscarriage of justice the appellate Court cannot impose the sentence of death because of the very order of acquittal. Indeed sentence of death is the ordinary penalty for the offence of murder and the lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed. If the doctrine of expectation of life was a rule of universal application, High Courts, would in no case, be competent to enhance the sentence awarded by the lower Court yet in a number of cases various High Courts of the sub- continent have in the past enhanced sentences of transportation of death if the ends of justice so required".
PLD 1976 SC 452, a similar plea was raised by the counsel. While rejecting it this Court took very strong notice of the "inhibition and hesitancy" on the part of the Courts below in awarding penalty of death in cases under section 302, P.P.C. And it was observed that:--- "... The impression is unavoidable that there is often a marked tendency in the High Court to find laboured pretext to alter sentence of death to life imprisonment".
As regards the plea that delay in disposal of appeals is by itself a good ground for reduction in sentence as it is supposed to have given an expectancy of life to the accused, the Court rejected it in the following words:- "As regards the doctrine of expectancy of life in view of the chronic delay in committal, trial and disposal of appeal 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 judgment in Asadullah Khan v Muhammad A.I PLD 1971 SC 541; Mst. Razia Begum v Hijrayat A.I and 3 others PLD 1975 SC. 607); and the doctrine like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court."
The same question came under consideration in Samano v. The State 1973 SCMR 162 and it was observed that:--- "As regards the sentence, it is true that the incident took place as long ago as November, 1964, but the mere length of time taken in concluding the trial and 'in deciding the appeals filed by the appellants would not by itself constitute an extenuating circumstances justifying the imposition of the lesser penalty."
Again, in the same year, when this proposition was advanced by the petitioner's counsel in Muhammad Hassan v. The State (1973 SCM R 344), this Court took notice of the changed circumstances i.e. The large pendency in High Courts and the consequent unavoidable delay in the disposal of appeals. It was observed that:- "Having regard to the large number of such cases pending before the High Court it would indeed a dangerous proposition to lay down that mere delay in the disposal of a death sentence case would entitle the condemned person to automatically obtain commutation of his death sentence."
When the learned counsel for the petitioner in that case cited a foreign judgment (21 Indian Cases 822) wherein lesser sentence was awarded in view of the delay in disposal of the case this Court observed as follows:--- "------The confirmation or commutation of a death sentence must rest on the facts and circumstances of a particular case, and it is neither desirable nor necessary to lay down any general principle governing such matters.
The Calcutta High Court's decision is reminiscent of days when capital sentence cases took precedence over all other cases and they were disposed of with the utmost expedition. In the changed circumstances of today, this decision has no relevance The same contention, based on the theory of expectancy of life was again rejected by this Court in Ayub Khan and others v. The State 1974 SCMR 324, wherein it was held that delay is not a sufficient ground for reduction in sentence and that this fact could be taken into account by the Government while considering the mercy petition for commutation of sentence filed by the convicts.
The plea was again raised on behalf of the convict in Abdur Rashid v. Umid A.I and 2 others PLD 1975 SC 227.
It was then urged on behalf of the convicts-respondents that in view of the passage of 6 years between their acquittal by the High Court and the decision of the Supreme Court had given expectancy of life to the accused. But this Court rejected the plea with the following observation: "As regards the question of sentences, in view of the circumstances of the case coupled with the increasing danger and insecurity of human life and liberty in the context of an alarming rise in the incidents of crime I would be inclined to restore the sentences of death despite the lapse of 6 years and the respondents expectancy of survival. The Court has of late consistently looked askance at the indiscriminate invocation of the doctrine of expectancy..."
The same view was again reiterated by this Court in Mst. Razia Begum v. Hijrayat A.I and 3 others PLD 1976 SC 44. This was also, a case in which judgment of acquittal by the Courts below had beer set aside on the ground that it had resulted in miscarriage of justice and respondents were convicted by this Court under section 302, P.P.C. It was pleaded on behalf of the convicts that in view of the expectancy of life that had arisen to them which had supervened as a result of their acquittal by the High Court, they should not be sentenced to death. This contention was repelled by this Court 'on the ground that in the circumstances of that case the application of the doctrine of expectancy of life for not awarding him the death penalty would itself amount to miscarriage of justice.
The doctrine of expectancy of life was again considered in Mokha v. 2ulfiqar and 9 others PLD 1978 SC 10. This was also an appeal against acquittal, where the judgment of acquittal was set aside by this Court and while considering the question of sentence it was held that the doctrine of expectancy of life was not applicable.
As to the question of delay in disposal of appeals it was observed that delay of 4 years could not be regarded as an inordinate for not imposing the death sentence. Although other mitigating circumstances were taken into consideration for awarding the lesser penalty to some of the accused, but delay in disposal of appeals was not regarded as a good ground for awarding lesser sentence and it was observed that: --..."As for the delay, in the disposal of the appeals of private revenge these considerations do not have general application in the matter of awarding lesser sentence. It is the facts and circumstances of a particular case which can provide an extenuating circumstance"."
PLD 1983 SC 88 this Court considered the effect of delay in disposal of appeals and observed as follows:--- "But the question of delay in the disposal of the present appeal law is now well settled that delay per se would not be made a ground to alter the death sentence to imprisonment for life, as the doctrine of expectancy of life cannot be invoked in the present state of work in Courts of law."
8. No doubt there have been cases where, in appeals against acquittal, maximum sentence was not awarded to the accused-respondents after their acquittal was set aside because of expectancy of life having arisen in their favour. But this, as shown by a large number of other judgments cited above is not the rule. The sentence in each case shah have to be determined on its own facts and whenever there is element of cruelty the Court has always leand towards awarding the maximum penalty even where the accused were acquitted by one or both the Courts below and acquittal is set aside by this Court.
The cases under decision are, however, not the cases where the accused-appellants had been once acquitted by any court. In the present cases the convicts have come up in appeal against their conviction and sentences of death, on the only ground that they had acquired expectancy of life because of the delay in the disposal of their appeals before the High Court and the Supreme Court. This as observed by this Court in some of the cases referred to above, cannot now be considered as a mitigating circumstance in view of the situation prevailing today, enormous backlog of appeals in the High Courts, make delay in their disposal almost inevitable. As such, to reduce the sentences of persons convicted under section 302, P.P.C. From death to imprisonment for life merely on the ground of delay in the disposal of appeals would result in releasing almost all the murderers and letting them loose on the public, endangering human life and destroying whatever is left of peaceful existence of the ordinary citizen.
9. The not result of the discussion is that the plea raised on behalf of the appellants is rejected and all the four appeals are dismissed.