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Petitioner: BHAI KHAN And Other VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Abdul Shakurul Salam, Rustam S. Sidhwa Title: BHAI KHAN And Other vs THE STATE Case No.:Criminal Appeals Nos. 199, 200 and 201 of 1986 Criminal Appeal No. 658 of
JUDGMENT
Reported As: PLD 1992 Supreme Court 14 Result: Orders accordingly Judgment JUDGMENT NASIM HASAN SHAH, J.---This judgment will dispose of the abovenoted three appeals as all of them are directed against one and the same judgment passed by a Division Bench of the Lahore High Court namely the judgment dated 12-2-1983 passed in Criminal Appeal No.658 of 1979. The occurrence in this case took place on 14th March, 1572. This day will remain the darkest day in the life of the unfortunate Soni son of Muhammad (the complainant herein). The details of the macabre incident which occurred on that day cannot be described better than in the words in which it has been narrated by the High Court namely:-- "The Dawn of 14th March, 1972 was an horrible tragedy for Soni son of Muhammad, resident of Khan Muhammadwala, District Sargodha. Calamity struck on him. Grenades were thrown in his houses. Houses were set on fire. Two of his families were burnt alive." When it became twilight, Soni left for Police Station Bhera, five miles away from the place of occurrence. There he lodged report (Ex.PZ) at 6 a.m. He gave details of the incident as best as could be expected from him. He told the police officer why his two families were wiped out; what was the motive and who committed the heinous crime. Soni had two wives Dauli and Bano. Dauli along with her son Mukhtar a baby of one year were living in a house of her brother Bati. House was situated in the village abadi. Her nephew Mirza was also living with her.
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The second wife Bano had two daughters Naziran, (10), Bashiran (8) and three sons namely Mahpal (6), Zulfiqar (4) and Intizar (3 months). Bano was residing with Soni at the Dera situate at the canal bridge of Shahpur Branch near the village Khan Muhammad Wala. The distance between the Dera of Soni and the village was two Killas. Soni's father Muhammad and mother Dauli were living at the Dera but separate from him. Mst. Mahri, a married sister of Soni was staying with her mother. She had come two days prior to the occurrence. Soni some times stayed at his Dera and some times in the village. On the fateful night, Soni, his wife Bano and children were sleeping at the Dera. Muhammad, his father, Dauli, his mother, Mahri sister and brother Sarsa were also sleeping at the Dera. At about mid-night, Soni heard firing from the village side. He woke up, came out of the Dera along with his father and wife Bano. The three left for the village. The party saw Dari, paternal cousin of Soni. There were six others with him. All were armed with guns. They were firing from there. Explosions were also taking place. Dari was shouting that no one should come out otherwise he would be shot dead. Soni, his father Muhammad and wife Bano were watching all what was happening, while standing near a Dharek tree. Soni's brother-in-law Bati who was in different Kotha also saw what ways happening. There was sufficient light. Electric bulbs were on. The accused were visible in the light. Dari being first cousin was known to Soni. Regarding the others, he said that he could recognize them if they were to come before him. When the accused left, Soni opened the front door. He saw Mirza and his son Mukhtar lying dead. Mirza had a large wound and number of small injuries on his back. Mukhtar's body had been charred. Dauli had injuries on arms, leg and face had been charred. She was unconscious. The roof of the house had been blown from different places. Articles lying in the room were on fire. Soni with the help of Bati and others managed to extinguish the fire. He found pieces of grenade inside the house. Soni along with his father and wife then came to the Dera. He from the canal bank again saw Dari and his companions. They had set his house on fire. The accused were standing at the roof of the adjoining house. They were firing from there. Soni's mother, sister and brother came out of the Kotha. They took shelter behind a wall and saw the incident from there. The accused could be seen in the light of flames. The accused party after the completion of their operation being satisfied that it concluded successfully mounted their horses and rode away towards the eastern side. The house was on fire. Soni found his daughters Nazaran, Bashiran and sons Zulfiqar, Intizar and Mahpal burnt alive. No one from the locality helped him. He was all by himself. The incident was seen by Saroo as well. Motive for this massacre was that Soni's uncle Hayat died some time ago. He was survived by one daughter Daulan. He had no male issue. He owned 12-1/2 acres of land. Daulan inherited one/third, two/third went to Muhammad, father of Soni. Mutation was duly entered. Dare, being son of predeceased father, could not inherit anything. He wanted to have his share. He talked with Soni who did not agree. So Dari thought of getting rid of Soni, his wives and children. On the aforesaid statement of Soni, seven persons namely Dari, Bhai Khan, Panda Khan, Khurshid, Abbas Khan, Baz Khan and Mustafa were challaned under section 302 / 436 /148/149, P.P.C. They were tried by the Additional Sessions Judge, Sargodha. The trial Judge by judgment dated 26-4- 1979 acquitted Khurshid, Abbas Khan and Mustafa. The rest were found guilty under sections 302/34 and 436, P.P.C. Dari was sentenced to death and a fine of Rs.5,000 or, in default one year R.I. On eight counts under section 302/34, P.P.C. Under section 436 he was awarded seven years' R.I. With a fine of Rs.5,000 or,
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in default one year R.I. On two counts. Bhai Khan, Panda and Baz Khan were sentenced to death and a fine of Rs.1,000 each, or, in default one year R.I. For the capital offence on eight counts. Under section 436, P.P.C. They were sentenced to 7 years' R.I. Each and a fine of Rs.1,000 each; or, in default one year R.I. On two counts. The sentences under section 436, P.P.C. Were to run concurrently. The fine, if realised, was ordered to be paid to the legal heirs of the deceased." The convicts appealed to the Lahore High Court. Reference for confirmation of their death sentence was also submitted. Both were disposed of by the Lahore High Court by the judgment dated 12-2- 1983. By this judgment the High Court upheld the trial Court's judgment dated 26-4-1979 whereby Dari son of Shera was sentenced to death on eight counts. Similarly, Bhai Khan son of Sattar, Panda son of Sarley Khan and Baz Khan son of Manga Khan (appellants before us) were also sentenced to death and a fine of Rs.1,000 on eight counts, as also to 7 years' R.I. On two counts under section 436, P.P.C. Plus a fine of Rs.1,000. The fine if realised was to be paid to the heirs of the deceased. The convicts filed petitions for leave through Jail and thereafter three of them (appellants before us) except Daree, filed regular petitions for leave, through learned counsel. The petition filed by Daree through Jail (Jail Petition No.35-R of 1983) was dismissed while the Jail Petitions and petitions for leave faed by Bhai Khan, Panda Khan and Baz Khan were accepted and leave to appeal granted mainly for consideration of the question of their identification vide or~er dated 5-11-1986. These three appeals came up far hearing on 10-12-1990 on which date learned counsel for the parties informed us that the death sentences of the appellants had been commuted to imprisonment for life under the general amnesty granted by the President of Pakistan on 7th December, 1988. The learned counsel for the appellants has not, therefore, advanced any submissions on the merits of the case but confined his submissions to the quantum of sentence which the appellants should be required to serve, in the light of the Presidential amnesty. It is submitted that the occurrence in this case took place on 14-31972, when the Law Reforms Ordinance, 1972, had not yet been enforced and on that date, under section 57 of the Penal Code, as it stood prior to the amendment by the Law Reforms Ordinance, 1972, the lesser punishment for offences under section 302, P.P.C. Could only be transportation for life and the said sentence of transportation for life was to be reckoned as equivalent to imprisonment for 20 years. Although by the amendment made in section 57 of the P.P.C. Sentence of imprisonment for life was substituted for transportation for life and is to be reckoned as equivalent to 25 years' imprisonment. The Law Reforms Ordinance came into force on 14-4-1972 and it does not contain any provision for its application retrospectively. Moreover, Article 12 of the 1973 Constitution protects a person against retrospective punishment as it provides that no law shall authorise the punishment of a person for an offence by a penalty greater than the penalty prescribed by law for that offence at the time when the offence was committed. Hence the appellants could be awarded only transportation for life namely 20 years' R.I. Reliance is placed on Muhammad Yunus v. The State (1981 SCMR 422). It is further submitted that the lesser sentences awarded under section 436, P.P.C. Are to run concurrently as the maximum punishment prescribed for heinous offences cannot exceed the sentence of life imprisonment in view of the provisions of proviso (a) of section 35(2) of the Cr.P.C. In this behalf reliance is placed on Javed Shaikh v. State (1985 SCMR 152) and Muhammad Ittefaq v. The State (1986 SCMR 1627). The learned counsel for the State, on the other hand, has argued that the quantum of sentence must be calculated with reference to the date on which the order of commutation was issued namely 7-12-1988 and on that date life imprisonment was to be reckoned as equivalent to imprisonment for 25 years vide [57 section as amended by Law Reforms Ordinance, 1972, section
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3(ii)J. He further submits that the provisions of Article 12 of the Constitution are not of any relevance in the circumstances of the case. We are inclined to agree with the learned counsel for the State. The amnesty granted by the President vide order dated 7-12-1988 is referable to the powers conferred on him under Article 45 of the Constitution. This provision lays down:- "45. The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority." Now the President, in his order dated 7-12-1988, was pleased to, inter alia, order:- "(a) the commutation of all death sentences awarded by the Military or other Courts up to 6th December, 1988, to imprisonment for life." Since on 7th December, 1988, when this order was issued the phrase "imprisonment for life" was to be reckoned as equivalent to 25 years' imprisonment and the order is operative as from that day, the use of the above phrase connotes that under the aforesaid order of commutation the beneficiaries were to undergo the sentence of 25 years' imprisonment instead of suffering the sentence of death. Accordingly, the sentence that the appellants are required to undergo under section 302, P.P.C. In the light of the orders of the President, shall be 25 years' R.I. There is, however, force in the contention that both the sentences awarded to the appellants under section 302, P.P.C. And section 436, P.P.C. Will run concurrently, which cannot exceed 25 years' R.I. In the aggregate. However, this is without prejudice to the sentence awarded in lieu of nonpayment of fine which they shall have to undergo in addition to the abovementioned sentence of 25 years' R.I. The result is that these appeals will be allowed in the above terms. Order accordingly. RUSTAM S. SIDHWA, J: --I have read the judgment of my learned brother Dr. Nasim Hasan Shah, J:, but since I differ with the conclusions and the final order proposed, I hereby record my reasons separately. 2. The incident in this case took place on the night between 13/14-31973. The case was tried by a learned Additional Sessions Judge of Sargodha. On the date of incident, the penalty for an offence under section 302, P.P.C. Was death or transportation for life, with liability to fine. For the purpose of the remission system, under section 57, P.P.C. Transportation for life was treated as equivalent to transportation for 20 years. Under section 58, P.P.C. a convict undergoing a sentence of transportation for life, until he was transported, was dealt with in the same manner as if sentenced to rigorous imprisonment and was treated as undergoing his sentence of transportation during the term of his imprisonment. However, on 14-4-1972 the Law Reforms Ordinance, 1972, was enacted: The penalty for an offence under section 302, P.P.C. For murder was amended to death or .Imprisonment for life, with liability to fine; and for the purpose of working out the remissions, section 57, P.P.C. Was amended treating imprisonment for life to be reckoned as equivalent to imprisonment for 25 years. On 26-4-1979 the Additional Sessions Judge convicted the present appellants Bhai Khan, Panda and Baz Khan under section 302/34, P.P.C. On eight counts to death and a fine of Rs.1,000 or in default of payment thereof to one year's R.I. Each on each of the eight counts and under section 436, P.P.C. On two counts to R.I. For seven years and a fine of Rs.1,000 or in default of payment of fine to further R.I. For one year each on each of the two counts; the sentences under section 436, P.P.C. Being ordered to run concurrently. On 122-1983 the appeals of the said three appellants were dismissed by the High Court. On 26-3-1983 the appellants petitioned this Court for leave to appeal, which leave was granted on 5-11-1986 to examine the evidence afresh, particularly on the question of identification of the appellants. On 7-12-1988, by virtue of the President's General Amnesty Order, all death sentences awarded by the military or other Courts up to 6-12-1988 were commuted to imprisonment for life. 3. When the appeals of the said three appellants came up for hearing, their learned counsel did not advance any submissions on the merits of the case, but confined their submissions to the
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quantum of sentence which the appellants would be required to serve in the light of the President's General Amnesty Order. 4. On behalf of the appellants it is- submitted that the occurrence in this case took place on the night between 13/14-3-1972 when the sentence prescribed for murder under section 302, P.P.C. Was death or transportation for life and that under section 57, P.P.C. For the purpose of the remission system transportation for life was to be reckoned as equivalent to transportation for 20 years. It is submitted that by amendments made by the Law Reforms Ordinance, 1972, which Ordinance came into force on 14-4-1972, the punishment for murder under section 302, P.P.C. Was amended to death or imprisonment for life and for the purpose of working out the remission system, section 57, P.P.C. Was also amended as a result of which imprisonment for life was to be reckoned as equivalent to imprisonment for 25 years. It is the case of the appellants that the President of Pakistan having commuted the death sentences of the appellants to imprisonment for life, the appellants for the purpose of the remission system will have to serve out 25 years of imprisonment whereas under the law as it stood before the enforcement of the Law Reforms Ordinance, 1972, they would have only served out imprisonment for 20 years. Relying upon Article 12 of the Pakistan Constitution (1973), it is submitted that no law can authorise punishment of a person for an offence by a penalty greater than that prescribed by law for that offence at the time when the same was committed and hence for the purpose of the remission system and working out the remissions under section 57, P.P.C., imprisonment for life should be reckoned as equivalent to 20 years. In this connection reliance is placed on Muhammad Younus v. State (1981 SCMR 422). It is further submitted that the punishments awarded to the appellants under sections 302 and 436, P.P.C. Should all be ordered to run concurrently, as the maximum punishment prescribed for heinous offences cannot be allowed to exceed the sentence of life imprisonment in view of section 35(2) proviso (a), Cr.P.C. In this connection the learned counsel places reliance on Javed Sheikh v. State (1985 SCMR 152) and Muhammad Ittefaq v. State (1986 SCMR 1627). 5. On behalf of the State it is submitted that since the President's General Amnesty Order came into force on 7-12-1988, the nature and quantum of sentence must be determined with reference to that date and if on that date the sentence was commuted to life imprisonment, then that sentence must be taken into consideration and it must be reckoned as equivalent to imprisonment for 25 years and the provisions of Article 12 of the Pakistan Constitution (1973) have no relevance and cannot be pressed into service. 6. The object of section 57, P.P.C. Is to lay a basis for the remission system for the purpose of working out the remissions. The old sentence of transportation for life was treated as one for 20 years, as provided by section 57, P.P.C. And para. 198 (f) (ii) of the Punjab Jail Manual. By virtue of policy decisions taken by the Provincial Government from time to time and the rules framed under the Prisons Act, 1894, the case of a person sentenced to transportation for life in a case of murder was sent up for release under section 401, Cr.P.C. To the Provincial Government under para. 141 of the Punjab Jail Manual if the convict had completed an aggregate of 14 years' imprisonment, including all remissions earned. If he was not released, he had to wait till 20 years' imprisonment was served. After the amendments brought about by the Law Reforms Ordinance, 1972, and particularly to section 57, P.P.C., the case of a person sentenced to imprisonment for life in a case of murder is now sent up for release under rule 140 of the Pakistan Prison Rules, 1978, after he has undergone a minimum of 15 years' substantive sentence, exclusive of all remissions earned. If he is not so released, he has to wait till 25 years' imprisonment is served. With the recent enforcement of the Criminal Law (Second Amendment) Ordinance I of 1991, the powers of the Provincial and the Federal Governments and of the President to suspend, remit or commute any sentence under any of the powers available under the Pakistan Penal Code and the Code of Criminal Procedure have
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been made subject to consent of the victim or his heirs, as the case may be. (See section 402-C, Cr.P.C.). 7. Article 12 of the Pakistan Constitution (1973) inter alia provides that: "(1) No law shall authorise the punishment of a p,--son-- (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. (2)------------------.------------------------....------------------------------------------- ----------------------------------------------------------------------------------------- ---------------------------------------------------------------------------.... Article 20 of the Indian Constitution (1949) also deals with protection against retrospective punishment. It also inter alia provides: "(1)No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2)--------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------- ------------------------------------------------------------------------- These Articles prohibit convictions and sentences being recorded in the criminal jurisdiction under ex post facto laws. Previously ex post facto laws imposed liability and punished acts which earlier were lawful when done. Such laws retrospectively created offences for acts or omissions that were not punishable at the time they were done or retrospectively punished persons for offences by penalties greater than or of different kinds from those prescribed for such offences at the time the same were committed. The broad range and nature of ex post facto laws is ably set out by Qadiruddin Ahmad, J. In para. 20 of his judgment in Nabi Ahmad v. Home Secretary, West Pakistan (PLD 1969 SC 599 at 610-11). Being against equity and all notions of fairplay and justice, these ex post facto laws over a period of time came to be abhorred. Slowly but surely such ex post facto laws were avoided by resorting to beneficial construction or rendered invalid by legislation and the above Articles in both the Pakistan and Indian Constitutions clearly render invalid such ex post facto laws and cover acts and omissions which may even have their commencement in the pre- Constitution period. See Keshavan M. Memon v. State of Bombay AIR 1951 SC 128. Where ex post facto laws only mollify or lessen the rigours of criminal law, but do not otherwise aggravate them, doubt has been expressed as to whether such laws fall within the prohibition of such Articles. The Indian Supreme Court in Rattan Lal v. The State of Punjab (AIR 1965 SC 444) has treated such a law as not falling within the prohibition. 8. Cases where greater penalties were imposed upon convicts than those prescribed by the law for offences at the time the same were committed and which were set aside and replaced by proper penalties are many. In Kedar Nath Bajoria v. State of West Bengal (AIR 1953 SC 404) the accused committed an offence in 1947 under an Act which prescribed punishment of imprisonment or fine or both. The Act was later amended and the punishment prescribed was enhanced by a further fine which was to be equivalent to the amount of money which was found to have been procured by the offender through his offence. It was held that the enhanced punishment prescribed by the amendment could not be applied to the offence committed in 1947, because of the prohibition contained in Article 20 of the Indian Constitution. In Abdul Majid v. State (PLD 1974 Kar. 309), which was an appeal decided by the Karachi High Court on 15-10-1973, the learned Judges were concerned with the question of enhancement of the sentences of Abdul Majid and Ali Hasan appellants. The incident in this case had taken place on 11-9-1968. The said appellants had been
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sentenced to transportation for life. The learned Judges did not consider it necessary to enhance their sentences for the reason that had the appellants been sentenced to death, such sentences having been imposed prior to 20-12-1971 would necessarily have been commuted to transportation for life under the General Amnesty Order of that date. The sentences of the appellants therefore were not enhanced. As regards the acquittal of Muhammad Ali, Abdul Hamid and Bakhsh Ali, respondents, the same was set aside and the learned Judges imposed sentences of transportation for life on them as under Article 11 of the Interim Pakistan Constitution (1972) the law could not authorise punishment which was not in existence at the time when the offences were committed. In Adbur Rehman v. State 1978 SCMR 292, Abdur Rehman was tried and convicted for murder committed on 6-6-1970 and sentenced to death on two counts by the trial Judge. The incident in this case took place in 1964. The appeals in the High Court having failed, that in the Supreme Court succeeded and the sentences of death were reduced to life imprisonment. Abdur Rehman then filed a review petition praying for converting his sentences from life imprisonment to transportation for life, as the occurrence had taken place prior to the Law Reforms Ordinance, 1972. This Court accepted the petition in view of Article 12 of the Pakistan Constitution (1973) and converted the punishment of the petitioner on each of the two counts from life imprisonment to transportation for life. In Muhammad Younus's case 1981 SCMR 422, the appeal of Muhammad Younus appellant against the judgment of the High Court dated 2-5-1974 reducing the death sentence of Karamat Khan respondent to that of imprisonment for life was rejected. However, as the occurrence had taken place on 13-7-1971, in view of Article 12 of the Pakistan Constitution (1973), the sentence of the respondent was altered to transportation for lite. Similar treatment was given to Muhammad Aslam appellant whose Criminal Appeal No.242 of 1977 was dismissed by the…
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