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Petitioner: RAHEEM BAKHSH VS Respondent: ABDUL SUBHAN and another
Court Name: Supreme Court of Pakistan Judge(s): Mamoon Kazi, Saeeduzzaman Siddiqui, Sh. Ijaz Nisar Title: RAHEEM BAKHSH vs ABDUL SUBHAN and another Case No.: Criminal Review Petition No,27 of 1994 Date of Judgment:1999-03-22 Reported As: 1999 SCMR 1190 Result: Application dismissed
JUDGMENT
JUDGMENT ' 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
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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.
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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.
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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
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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.
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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
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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…
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