' SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking review of the majority judgment in Criminal Appeal No,267 of 1992, dated 25-11-1993.. The petitioner, alongwith one Allah Wasaya, was tried before the Additional Sessions Judge, Dera Ghazi Khan under section 302/34, P.P.C. For murder of Abdur Rehman and Faqir Buksh. The trial Court acquitted Allah Wassya giving him the benefit of doubt but convicted the petitioner under section 302, P.P.C. On two counts, sentencing him to death plus fine of Rs,30,000 on each count and in default of payment of, fine to suffer R.I. For one year.
2. The petitioner preferred appeal against his conviction and sentence while the learned trial Court sent a murder reference to the High Court for confirmation of the death sentence awarded to petitioner. A learned Division Bench of the High Court accepted the appeal of the petitioner against his conviction and sentence under section 302, P.P.C. And consequently, rejected the murder reference.
3. The respondent, with the leave of this Court, challenged the order passed by the learned Division Bench of Lahore High Court, in Criminal Appeal No,267 of 1992 which was accepted by majority of 2 to 1 and in consequence thereof the petitioner was convicted under section 302, P.P.C. And was awarded death sentence and fine of Rs,30,000 as ordered by the trial Court. After the judgment of this Court, the petitioner absconded and filed a review petition. The office raised an objection that the review petition was not maintainable as the petitioner had not surrendered to the order of this Court, dated 25-11-1993 in terms of Rule 8 of Order XXIII of the Supreme Court Rules. The petitioner instead of surrendering, remained an absconder and challenged the order of Assistant Registrar in a Miscellaneous Appeal which was allowed on the ground that the Rule 8 of Order XXIII applied to petitions for leave to appeal which did not extend to review proceedings filed under Order XXVI of the Supreme Court Rules. The office was accordingly, directed to process the review petition and place it in Court according to roster of sitting:
4. In this background, the office processed the review petition and found it barred by 188 days. The petitioner applied for condonation of delay and the Review petition was fixed before a Bench of this Court for hearing on 7-5-1995 when it was adjourned at the request of the learned counsel. The petition again came up for hearing on 8-10-1995 when the following order was passed: ' The petitioner has not surrendered so far. Learned counsel for the petitioner states that he is out of Pakistan. The petitioner is directed to surrender before the Court before hearing of his review petition.
' To come up after one month."
' The review petition again came up for hearing before this Court on 11-12-1995 but on the application of the petitioner's counsel it was adjourned to a date in office. The petition when came up for hearing on 17-1-1996, it was once again adjourned on the ground that the petitioner's counsel could not prepare the case on account of the request of respondent's counsel for adjournment. On 5-6-1996 when the review petition came up for hearing, it was noticed that the petitioner was absent and had not surrendered to the Court. The petitioner counsel requested for time to produce the petitioner in Court and accordingly, the case was adjourned to a date in office.
The petitioner, for the first time after his conviction by this Court as aforesaid, appeared before the Court on 15-10-1996 when the following order was passed:-- "According to the office the petition is barred by 188 days. The learned counsel for the petitioner states that the petition is not barred by 188 days. He states that the judgment was announced on 25-11-1993 and the review petition was presented in the office of the Supreme Court on 28-2-1994 but it was returned on 1-3-1994 with objection that since the petitioner was fugitive from law, his review petition could not be entertained. The review petition was again presented in the office on 23-9-1994 but the similar objection was raised and, therefore, an appeal against the objection was filed which was heard by a learned Single Judge in Chamber who accepted it on 17-10-1994 and held that the review petition could be filed.
2. Later on this Court passed an order for the surrender of the petitioner. The learned counsel for the petitioner states that the petitioner has surrendered and is present in the Court today. We leave this question open to be taken up and decided later.
3. On merits it is submitted that initially two persons, namely, Rahim Bux (petitioner) and Allah Wasaya were put on trial under section 302/34, P.P.C. And the trial Court sentenced the petitioner to death and acquitted Allah Wasaya. Against acquittal no appeal was filed by the State or by the complainant. However, the petitioner filed an appeal against his conviction in the High Court, which was allowed and in consequence whereof he was acquitted. Petition for leave to appeal was filed in this Court and leave was granted and the appeal was heard by three Judges of this Court and finally majority of two rendered judgment in favour of convicting the petitioner and sentencing him to death whereas the minority judgment of one rendered judgment in favour of his acquittal.
4. It is submitted by the learned counsel that he was unable to agitate the question of reduction of sentence in case of conviction for the reason that he had argued his case on the line that his client was entitled to acquittal. It has also been submitted by him that the acquittal rendered by one Judge of the Bench itself should have been considered as sufficient ground justifying reduction of sentence from death to life imprisonment.
5. In the circumstances we consider it a fit case in which notice should be issued to the learned Advocate-General, Punjab to assist the Court on the question of reduction of sentence and also on limitation. Issue notice to the Advocate-General and the counsel for the complainant. The counsel for the complainant is present in the Court and waives the notice.
6. The petitioner present in the Court is admitted to bail in the sum of Rs,2,00,000 with two sureties and P.R. In the like amount to the satisfaction of the trial Court."
' The petitioner again absented on 21-1-1998 and 28-10-1998 when this petition came up for hearing and, therefore, on both the occasions, it was adjourned on account of his absence. Thereafter, this petition was fixed in Court on a number of dates but for one or the other reason, it did not proceed.
' We have heard Mr. Talib H. Rizvi, the learned counsel for the petitioner and Mr. Ali Hassan Gillani for the respondent.
5. The learned counsel contends that the review petition was presented in time but the delay was caused because of the office objection which was ultimately decided in favour of the petitioner. We have checked the original record and find that even if the period consumed in presenting the appeal against the order of Assistant Registrar is excluded the Review Petition is barred by 4 days.
However, keeping in view the circumstances of the case that a learned Bench of this Court has been pleased to issue notice in the review petition to consider the reduction of death penalty in the case, we are inclined to condone the delay of 4 days in filing the review petition.
' We have heard the learned counsel for the petitioner on the question of sentence and are of the view that no ground is made for interference with the order dated 25-11-1993.
6. From the order dated 15-10-1996 passed by this Court it is quite evident that the learned Judges of the Bench of this Court (which also included the learned Judge, who wrote the minority opinion in the appeal of the petitioner from which this review petition has arisen) were persuaded to issue notice of the review petition for consideration of the sentence awarded to the petitioner on the ground that one of the learned Judges of the Bench hearing the appeal of the petitioner had acquitted him in the case which by itself was a sufficient ground for reduction of death sentence into life imprisonment. However, the learned counsel for the petitioner at the hearing of the appeal mainly relied on the doctrine of expectancy of life for award of lesser punishment of life imprisonment. It is contended by the learned counsel that the petitioner was acquitted by the High Court on 16-2-1991 and since then he is on bail for the last about 8 years, Therefore, on account of passage of this long period, the petitioner has acquired a very strong expectancy for life and as such award of death penalty will be unjustified. The learned counsel also contended that there are other mitigating circumstances like absence of strong motive, premeditation and doubtful nature of case of prosecution which justified lesser punishment in the case. In support of his contentions, the learned counsel has cited the following cases:--
(1) Muhammad Arshad v. State (PLD 1996 SC 122).
(2) Advocate-General, Government of East Pakistan v. Majid (1970 SCMR 12).
(3) Khuda Yar v. State (1990 SCMR 357).
(4) Ansar Ahmad Khan Barki v. State (1993 SCMR 1660); and
(5) Nihal Singh v. Emperor (AIR 1927 Lahore 516).
' Since the ground mentioned in the order of the Bench of this Court issuing notice of this review petition was, that one of the learned Judges which heard the petitioner's appeal, had recorded his acquittal in the case and this fact by itself was sufficient for award of lesser punishment of life imprisonment, we propose to deal with this point in preference to other contentions raised by the learned counsel in support of this petition.
' The point stands concluded by the judgment of the Bench of this Court consisting of seven learned Judges (Anwarul Haq, C.J., Muhammad Akram, Dorab Patel, Muhammad Haleem, G. Safdar Shah, Karam Ellahi Chohan and Nasim Hasan Shah, in Criminal Review Petition No, 5-R of 1979 reported as Zulfiqar Ali Bhutto v. State (PLD 1979 SC 741). The review petition was dismissed unanimously but two learned Judges of the Bench recorded separate opinion. The leading opinion in this case was recorded by Muhammad Akram, J. With which Anwarul Haq, C.J., Karam Ellahi Chauhan and Nasim Hassan, agreed. The other opinion in the case was recorded by Dorab Patel J.
With which Muhammad Haleem and G. Safdar Shah, JJ. Concurred. On the questions of scope of review proceeding and the quantum of sentences when the Judges hearing the appeal are divided in their opinion, Muhammad Akram, J. Expressed as follows:-- "43. From what has been said in the preceding paragraphs, it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination.
The contention that the exposition of the law is incorrect or erroneous, or that the Court has gone wrong in the application of the law to the facts of the particular case; or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review, or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review.
44. It is also to be borne in mind that as finality attaches to the judgments delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of a rehearing of the whole case, nor is it an appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration of the same contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to be apparent on the face of the record.
45. It is further to be noted that it is well-settled that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence, if a legal sentence has been imposed, or upheld, after due consideration of all the relevant circumstances."
188. It would appear, therefore, that there is no recognised rule of prudence, muchless of law, that if the Judges comprising the appellate Bench are equally divided as to the guilt of the accused and the matter is referred to a third Judge, then the latter must acquit the accused; nor there is any rule that if the equal division is in respect of the quantum of sentence, then the death penalty should not be imposed irrespective of the presence or absence of mitigating circumstances. In all such cases the decision must depend upon the independent appraisal of the third Judge as to the guilt of the accused in the first case, and as to the appropriate sentence in the second case. It is also to be noticed that these cases relate to an equal division of opinion on the question of sentence, and not where the conviction as well as sentence are upheld by majority opinion. In such situations the opinion of the majority has to prevail both on the point of guilt as well as of the quantum of sentence, the difference of opinion by itself not constituting an extenuating circumstance, nor would it constitute a ground for review.
189. There are several recent instances of our own Court in which sentences of death were upheld by majority. One may mention Mehr Ali and others v. The State (1968 SCMR 161), Misri Khan v. Kala Khan etc. (PLD 1977 SC 162), Roshan and others v. The State (PLD 1997 SC 557) and Noor Alam v. The State (PLD 1978 SC 137).
190. It may be stated that in the case of Mehr Ali Khan and others a review petition was filed, but the same was dismissed, and the judgment is reported as 1969 SCMR 9. It was observed that: 'on principle it cannot be accepted that wherever there is a dissenting judgment the majority judgment becomes liable to review. Each judgment is based upon its own reasons and it is not necessary that a judgment should anticipate the point of dissent, if any, and deal with the same in advance'. .
191 Similarly a review petition was also filed in the case of Misri Khan and, as already stated, it was dismissed with the observation, inter alia, that the trial Court held that there were no extenuating circumstances in favour of the accused, and the learned counsel was not able to show that this conclusion was amenable to challenge for any substantial reason; and that, in any case, this objection was not taken in the appeal and, therefore, it could not be urged in review.
192. As observed by the learned Judges of the Indian Supreme Court in the case of Vedivelu Thevar v. The State of Madras, 'If the Court is convinced about the truth of the prosecution story, conviction has to follow. The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the Court is satisfied that there are such mitigating circumstances, then it would be justified in imposing the lesser of the two sentences provided by law. In other words, the nature of the proof has nothing to do with the character of the punishment.'
193. For the foregoing reasons we are of the view that the fact that the convictions and sentences recorded against the petitioner have been upheld by this Court according to the majority opinion does not constitute a valid ground for review on the question of sentence. It is not an error apparent on the face of the record; nor is there any rule of prudence or of law that in the event of such a difference of opinion the sentence, though legal and imposed after due consideration of the relevant circumstances, should be reviewed for this reason alone."
' Dorab Patel, J. In his separate note observed as follows:-- "Although this review petition has to be dismissed, I would like to make a few observations on the question of sentence.
' As submitted by Mr. Yahya Bakhtiar, there are judgments in which capital punishment has been imposed only on the persons who have actually participated in the killing of the victim of the offence, and the lesser sentence has been imposed on the person or persons who have instigated or abetted the murder. Similarly there are judgments in which the lesser sentence has been imnosed for murder on account of a cleavage of opinion in the Court which heard the appeal. But confining myself only to the reported judgments of this Court in the last three years to which I was a party, this principle was not followed in Aminulah v. The State (PLD 1976 SC 629), in Roshan and 4 others v. The State (PLD 1977 SC 557) and in Noor Alam v. The State (PLD 1978 SC 137)' Perhaps because the trend of authority in this Court in the last eight or ten years has been consistently against the proposition advanced by learned counsel, he placed great stress on the unusual cleavage of opinion in the instant case. Be that as it may learned counsel's main stress was on the fact that even according to the prosecution it was not Mr. Bhutto who had fired the fatal shots at Mr. Kasuri's car and that in any event the victim of the offence was not the person whose murder Mr. Bhutto had planned. But these are circumstances which, according to the settled law, were relevant to a plea for mitigation of sentence, therefore, learned counsel should have referred to them in his arguments before us in the appeal against Mr. Bhutto's conviction, the moreso, as the question of sentence, is a question in the discretion of the Court. I am also not aware of any case either of this Court or of the High Courts in which counsel for the appellant has, whilst challenging a conviction for murder, not addressed arguments in the alternative on the question of sentence. I, therefore, agree with the view of Akram, J., that the question of sentence cannot be raised in a review petition, and if we were to alter the sentence in this review, we would be unsettling the settled law. But, although we are thus, precluded by law from going into the question of sentence, as observed by Akram, J., in the concluding paragraph of his order, the grounds relied upon by Mr. Yahya Bakhtiar for mitigation of sentence are relevant for consideration by the executive authorities in the exercise of their prerogative of clemency.
' However, Mr. Yahya Bakhtiar's arguments on the question of sentence were without prejudice to his main submission, which was that the majority judgment suffered from errors apparent on the record which had resulted in the dismissal of Mr. Bhutto's appeal. Now learned counsel had addressed us for nearly two weeks on this question, but as he has failed to persuade the Judges, who pronounced the majority judgment of the Court, to revise the finding of guilt of the petitioner, it follows that the review petition must be dismissed. In these circumstances, consistently with judicial dignity and the practice of the Court, I do not think it would be proper for me to make any observations on learned counsel's submissions; and I do not think it would be proper for me to make any observations on learned counsel's submissions; and I would dismiss the petition for the reasons given herein."
' The above observations in Mr. Zulfiqar Ali Bhutto's case (supra) were referred with approval in the majority opinion in the case of Yaqoob Khan v. State (PLD 1996 SC 97) to which one of us (Saiduzzaman Siddiqui, J.) was a party. In view of above stated legal position, we are of the view that the minority opinion in the appeal of petitioner which acquitted him in the case, could not be a valid ground for awarding lesser penalty of life imprisonment by way of review of the judgment in appeal. We now turn to the other contentions raised by the learned counsel for the petitioner in support of the review petition.
7. The first contention of the learned counsel for the petitioner is based on the ground of expectancy of life acquired by the petitioner, firstly on account of his acquittal by the High Court on 16-2-1991 and secondly, he remained as a free man since then having been admitted to bail even after grant of leave against the judgment of the High Court by this Court.
8. In a murder case, if the prosecution succeeds in proving the case beyond reasonable doubt against the accused person, normal penalty of death prescribed for the offence is to follow.
However, this Court in the case of Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452) after having noticed certain amount of hesitancy and inhibition on the part of the Courts to award sentence of death in cases under section 302, P.P.C. And efforts to find laboured pretext to alter the death sentence to life imprisonment, disapproved this tendency as follows:-- "It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Court to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it An equally important aspect of this sanctity of human life often lost sight of is that once conviction if finally upheld the deliberate extinction of life is vested with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.Rs,, the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trial of appeals all combine to help out the murders of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus, indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P.P.C. In a case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P.P.C. Does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made on that score in the matter of sentence. Reference may be made in this regard to Garday Singh and others v. Emperor (AIR 1948 Lah. 58) a D.B. Judgment by Muhammad Munir and Muhammad Jan, JJ. As they then were, in which the revision petition for enhancement of sentence of transportation was allowed and sentence of death was awarded to four convicts on capital charge. The next relevant case is Khairdi Khan and others v. Crown (PLD 1951 Lah. 322), again a Lahore judgment of high authority by Muhammad Munir, C.J. And S.A.
Rehman, J. Both of whom retired as Chief Justice of Pakistan. Here again accepting the revision petition, the learned Judges enhanced to death the sentences of transportation for life awarded to three convicts in a case of double murder. The next judgment is Shaheb Ali v. State (PLD 1970 SC 447) in which it was observed by this Court 'if several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the Law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner.' Earlier in the same judgment, it was observed 'if on the facts of a given case, law and justice demand a heavier toll for the extinction of single life at the hands of more than one culprit, it has to be exacted.' However, there may be a host of extenuating and mitigating circumstances such as extreme youth, sudden provocation, influence of an elder, question of family honour etc. Justifying the award of the lesser penalty of life imprisonment based on a chain of judicial pronouncements offering useful guidelines."
' The learned counsel for the petitioner in support of his contention that the petitioner has acquired expectancy of life having been acquitted by the High Court and then remaining on bail for a number of years, may not be awarded death penalty, relied on the following observations of this Court in the case of A.G. Government of East Pakistan v. Majid (1970 SCMR 12): "As regards the sentence to be imposed upon the respondent, learned counsel appearing on his behalf has argued that there were some extenuating circumstances in this case in so far as the respondent was acting out of jealousy. But this cannot be a sufficient ground for excusing murders or reducing them only to culpable homicide. Nevertheless, we do not propose to impose the maximum penalty of death upon the respondent. He was arrested in 1963 and was acquitted by the High Court on the 15th June, 1967. Thus even from the date of his acquittal he has had an expectation of life for over two years, In the circumstances we think that the penalty of transportation for life on each count would sufficiently meet the ends of justice. In computing the period of this sentence, however, the period already served by the respondent will also be taken into account. The sentences will also run concurrently."
' The principle of expectancy of life which per se was once accepted as a valid ground for awarding lesser punishment in a case involving capital punishment has undergone substantial change in the later years as would appear from the following observations made by a learned Bench of this Court in the case of Maqbool Ahmed v. State 1987 SCMR 1059: "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 circumstance entitling the persons convicted for the lesser penalty or reduction of sentence, especially when they have acted in a gruesome or cruel manner.
' In support of the theory of 'expectance of life' Sh. Shaukat Ali, 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 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.
' But a few years later in the case of Siddiq v. The State (1970 SCMR 288), this Court changed the aforementioned view in the light of the changed circumstances and held as follows:-- 'Mr. R.A. Jermy appearing for the appellant urged that as 3-1/2 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 have 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 v. 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 has 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 Sindh 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 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 402A of the Criminal Procedure Code."
' Again in Asadullah v. Muhammad Ali 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 observation:- "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 has on an erroneous or perverse view acquitted an accused person resulting in grave miscarriage of justice that Appellate Court cannot impose the 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 to death if the ends of justice so required."
' In Muhammad Sharif v. Muhammad Javed alias Jeda and 5 others (PLD 1976 SC 346), 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 or expectancy of life in view of the chronic delay 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 (PLD 1971 SC 541); Muhammad Khan v. Dost Muhammad (PLD 1975 SC 607) and Mst. Razia Begum v. Hijrayat Ali and 3 others (PLD 1976 SC 44 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 circumstance 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 SCMR 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 be 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 precedent over all other cases and they were disposed of with the utmost expedition. In the changed circumstances of today, this decision has no relevance (Note: The underlining* is ours (sic))
' 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 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 Ali etc. (PLD 1975 SC 170). In that case the Sessions Judge convicted Nazir Ali and Umid Ali, respondents, under section 302, P.P.C. And sentenced each of them to death. But on appeal the High Court of Sindh and Balochistan acquitted both of them. Being aggrieved, Abdur Rashid complainant, filed a petition for leave to appeal against their acquittal and leave was granted to him. After hearing the matter a Full Bench of its Court by a lengthy and well-considered judgment accepted the appeal and set aside the judgment of the High Court, holding that it had resulted in miscarriage of justce. 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 Corut had given expectancy of life to the accused. But this Court rejected the plea with the following observation:-- 'As regards the question of sentence, 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 Ali and 3 others (PLD 1976 SC 234). This was also a case in which judgment of acquittal by the Courts below had been 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. His 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. Zulfiqar 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 of death sentence. Although other mitigating circumstances were taken into consideration for awarding the lesser penalty to some of 'the accused, and 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 appeal 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'.
' In Kala v. The State (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 shall have to be determined on its own facts and whenever there is element of cruelty the Court was always leaned 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."
9. From the above discussion, it is clear that earlier view of this Court that delay in the disposal of cases involving capital punishment may give rise to the expectancy of life to an accused and, therefore, in such cases capital punishment may not be awarded by the Court while maintaining conviction, has undergone a change. As it was not followed in a large number of cases decided in later years, We are, therefore of the our view, the principle of expectancy of life per se is not a valid ground now for awarding lesser punishment in cases involving capital punishment. Even otherwise, the facts of the present case do not justify application of principle of expectancy of life as the petitioner was acquitted by the High Court on 16-2-1991 and his acquittal appeal was decided by this Court on 25-11-1993 in less than a 3 years time. Keeping in view the increased work load in the Courts and the time generally taken for decision of such cases, the period of about three years cannot be considered as a period long enough to create expectancy of life in favour of petitioner.
In so far the, period after 25-11-1993 is concerned, the petitioner cannot claim any advantage for the same as he remained an absconder until 15-10-1996, when he was admitted to bail by a Bench of this Court. Even the period spent by the petitioner on bail after 15-10-1996, is of no advantage to petitioner in the circumstances of the case, as the petitioner was not entitled to the grant of bail because the notice issued in his review petition was only for consideration of quantum of sentence which in any case could not be less than life imprisonment if the Court allowed his review petition.
We are, therefore, of the view that the petitioner was not entitled to claim any benefit on the doctrine of expectancy of life. In so far the other mitigating circumstances in the case are concerned, namely, existence of strong motive, premeditation and doubtful nature of the prosecution case, none of these considerations can be said to be present in the present case. The learned trial Court came to the conclusion that the prosecution succeeded in establishing the case beyond reasonable doubt against the petitioner who was held responsible for the death of two persons. The learned trial Court also came to the conclusion that on account of rivalry, the petitioner had the motive to commit the murder in the case. Since the prosecution had succeeded bringing home the charge of murder against the petitioner in the case, the burden of showing presence of mitigating circumstances for not awarding the normal punishment of death was on the petitioner which he failed to discharge. The learned counsel has cited the cases referred to above which are of no assistance to him in the present case. In that first noted case, the lesser penalty was awarded to the accused on the consideration that the admitted position in the case was that there existed no background of any previous enmity and deep-rooted hostility between the parties. It was also found in that case that the accused had made only one fire shot and did not repeat it. In the 2nd case, the accused was awarded lesser penalty keeping in view his young age of 18 years, In the 3rd case possibility of the accused having acted under the influence of his elders at the time of commission of the offence, was considered as a mitigating circumstance for award of lesser penalty to the accused. In the 4th case, the Court held that the accused had succeeded in casting some doubt on the version of prosecution case and therefore, he was held entitled to the benefit of lesser sentence instead of capital punishment. In the last-mentioned case, the element of preparation and premeditation on the part of the accused were found absent and, therefore, the Court awarded lesser punishment of transportation of life instead of capital punishment. None of the circumstances, which were taken into consideration in the abovenoted cases for awarding lesser penalty on the accused, are present in the above case. According to the findings of the learned trial Court, the motive for the murder stands proved in the case against the petitioner, who was held responsible for committing murder of two persons. In these circumstances, we care of the view that no mitigating circumstances are present in the above case for awarding lesser penalty to the petitioner. The review petition is accordingly dismissed. The petitioner is on bail in the case. His bail bonds are cancelled and he is directed to be taken into custody for execution of the sentence.
10. In view of the above order, the application filed by the complainant for cancellation of bail granted earlier to the petitioner, is dismissed as infructuous.