Death penalty change into life imprisonment . case law supreme court.
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| Death penalty change into life imprisonment . case law supreme court |
چونتیس سال قید کاٹنے والے کی سزاۓ موت معاف۔
**پاکستان کی سپریم کورٹ**
**(نظرثانی دائرہ اختیار)**
**حقائق:*
* درخواست گزار غلام شبیّر کو 15.07.1990 کو ایف آئی آر نمبر 243 کے تحت دو افراد کے قتل اور دو دیگر کو زخمی کرنے پر گرفتار کیا گیا تھا۔ ٹرائل کورٹ نے 07.12.1994 کو انہیں دفعہ 302(b) پی پی سی کے تحت دو سزائے موت اور دفعہ 307 پی پی سی کے تحت پانچ سال قید کی سزا سنائی۔ درخواست گزار کی اپیل 07.02.2000 کو ہائی کورٹ اور 28.10.2015 کو اس عدالت نے مسترد کر دی۔ درخواست گزار نے اس نظرثانی درخواست میں کہا ہے کہ انہوں نے پہلے ہی عمر قید کی مدت مکمل کر لی ہے، لہٰذا ان کی سزائے موت کو عمر قید میں تبدیل کیا جائے، جس میں انہوں نے دلائل کے طور پر دلاؤر حسین، حسن، اور خالد اقبال کے کیسز کا حوالہ دیا ہے۔
**دلائل:
** درخواست گزار کے وکیل نے کہا کہ دفعہ 302(b) پی پی سی کے تحت سزا موت یا عمر قید ہو سکتی ہے۔ چونکہ درخواست گزار نے 26 سال سے زائد قید کاٹ لی ہے، اس لیے سزائے موت کو عمر قید میں تبدیل کرنا چاہیے۔ ان دلائل میں گزشتہ مقدمات کے اصولوں کا حوالہ دیا گیا۔
**بحث:**
1. **پیشگی فیصلوں کا جائزہ:*
* عدالت نے دلاؤر حسین، حسن، اور خالد اقبال کے مقدمات کے اصولوں پر بات کی۔ عدالت تسلیم کرتی ہے کہ طویل قید کے باعث سزائے موت کو عمر قید میں تبدیل کیا جا سکتا ہے۔ درخواست گزار نے 34 سال سے زائد قید کاٹی ہے، جس میں 24 سال موت کے کمرے میں گزارے ہیں، جو عمر قید سے تجاوز کرتا ہے۔
2. **موت کے کمرے کی حالت:*
* عدالت نے موت کے کمرے کی سخت حالتوں اور ذہنی اثرات پر بات کی، اور طویل تاخیر اور نظامی مسائل کو بھی مدنظر رکھا۔
3. **قانونی اور آئینی حقوق:*
* فیصلے میں انسانی حقوق اور بین الاقوامی معیاروں کے مطابق قید کی حالتوں کی اہمیت پر زور دیا گیا، اور طویل قید کو دوبارہ سزا نہ دینے کا ذکر کیا گیا۔
**نتیجہ:**
طویل قید اور موت کے کمرے کی حالات کو مدنظر رکھتے ہوئے سزائے موت کو عمر قید میں تبدیل کرنے کا فیصلہ کیا۔ لہٰذا،
عدالت نے درخواست گزار کی طویل قید اور موت کے کمرے کی حالات کو مدنظر رکھتے ہوئے سزائے موت کو عمر قید میں تبدیل کرنے کا فیصلہ کیا۔ لہٰذا، سزائے موت کو عمر قید میں تبدیل کر دیا گیا اور دفعہ 382-B، سی آر پی سی کے فوائد فراہم کیے گئے۔ دفعہ 307 پی پی سی کے تحت سزا برقرار رکھی گئی، اور تمام سزائیں بیک وقت چلیں گی۔
Must read judgement
IN THE SUPREME COURT OF PAKISTAN
(Review Jurisdiction)
Present:
Mr. Justice Jamal Khan Mandokhail
Mrs. Justice Ayesha A. Malik
Mr. Justice Syed Hasan Azhar Rizvi
Criminal Review Petition No. 103 of 2017 IN
Criminal Appeal No. 643 of 2009
(To review the judgment of this Court dated 28.10.2015 passed in
Crl. Appeal No. 643 of 2009)
Ghulam Shabbir
…Petitioner
Versus
The State etc
…Respondents
For the Petitioner:
Mr. Hasnat Ahmad Khan, ASC
For the State:
Mr. Irfan Zia, DPG
Date of Hearing:
05.06.2024
JUDGMENT
Jamal Khan Mandokhail, J.- Facts in brief are that the petitioner was
arrested pursuant to FIR No. 243 dated 15.07.1990 for committing
murder of two persons and causing injuries to two others. The Trial
Court vide judgment dated 07.12.1994 convicted the petitioner under
section 302(b) of the Pakistan Penal Code (“PPC”) and sentenced him to
death on two counts. He was also convicted under section 307 PPC and
sentenced to rigorous imprisonment for five years on two counts. The
petitioner's appeal was dismissed by the High Court vide judgment dated
07.02.2000. His criminal appeal was dismissed by this Court on
28.10.2015, as a result, his convictions and sentences were upheld. The
petitioner has filed the instant criminal review petition on the ground
that he has already served his life term, therefore, has prayed for
conversion of his death sentences into imprisonment for life. Reference
has been made to the cases of Dilawar Hussain1
, Hassan2
and Khalid
1 2013 SCMR 1582
2 PLD 2013 SC 793
Crl. R.P. 103 of 2017
Iqbal3
. His review application was entertained on 19.09.2017 and notices
were issued to the respondents.
Contention:
2.
The learned counsel for the petitioner submitted that section
302(b) of the PPC provides two sentences i.e., punishment for death or
imprisonment for life as Tazir. He stated that though the petitioner was
sentenced to death on two counts, but before deciding his criminal
appeal by this Court, he had served 26 years sentence without
remissions, which is more than imprisonment for life. A premise of an
arguments of the learned counsel is that after serving one of the
sentences, the petitioner cannot be punished for another sentence in
respect of one and the same offence, but this Court while deciding the
criminal appeal of the petitioner, did not consider the dictum laid down
in the cases of Dilawar Hussain, Hassan and Khalid Iqbal (supra).
According to the learned counsel, on the strength of the ratio decided in
the referred judgments, the petitioner’s sentence is required to be
converted from death to imprisonment for life.
Discussion:
3.
Arguments heard and have perused the record. It is a fact that
after his arrest in this case on 16.07.1990 till date, the petitioner has
served out more than 34 years sentence, without any remission, out of
which he remained in death cell for about 24 years. While entertaining
the instant review petition, it was felt necessary to reconsider the case of
the petitioner on the strength of the above referred cases. Dilawar
Hussain was awarded death sentence. His appeal was heard by a fiveMembers Bench of this Court. Before his appeal could be decided, he had
served 25 years sentence (including remissions), out of which, he
remained in death cell for about 18 years. It was held that where there is
an iota of circumstance leading the Judges to exercise their discretion
towards awarding lesser punishment, the Court must do so. On this
analogy, this Court concluded that long detention of the convict has
resulted into completion of his life term, which is one of the sentences
provided under section 302(b) PPC, as such, he cannot be sentenced
twice. Consequently, the sentence of death awarded to Dilawar Hussain
was converted into imprisonment for life. Such view has been endorsed
3 PLD 2015 SC 50
Crl. R.P. 103 of 2017
by this Court in the case of Hasan, relevant portion at Para 18 is
reproduced herein below:
“…In the present case the convicts-appellants have already
spent about 22 years in death-cells and their total period of
custody exceeds a full term of imprisonment for life each even
if the remissions earned by them are not taken into
consideration. The case of the present appellants is, therefore,
a better case for reducing their sentences of death to
imprisonment for life on the charges of murder than the case
of the convict in the above mentioned judgment rendered by a
5-member Bench of this Court. In view of availability of that
recent precedent withholding the benefit of the principle of
expectancy of life from the appellants in the present case may
be oppressive, if not unjust.”
Similarly, in Paragraphs 20 and 21, it is held as under:
“20. The discussion made above shows that as of today the
following principles of practice are being followed by the courts
of this country in respect of the principle of expectancy of life:
(a) ---
(b) ---
(c) In a case where a convict sentenced to death
undergoes a period of custody equal to or more than
a full term of imprisonment for life during the
pendency of his judicial remedy against his
conviction and sentence of death there the principle of
expectancy of life may be a relevant factor to be
considered along with the other factors for reducing
his sentence of death to imprisonment for life.”
21…..Applying the same standard or principle, it may not be
unreasonable to conclude that where a convict sentenced to
death on a charge of murder fails to obtain a final judicial
determination qua validity of his conviction or desirability of
sentence of death for such a long time that his period of
custody stretch to a period equal to or exceeding a full term of
imprisonment for life, which is one of the two alternative legal
sentences provided in section 302(b), P.P.C., there the State,
acting through its judicial Organ, may acknowledge failure of
its constitutional responsibility of ensuring expeditious justice
and may exercise discretion in the matter of the sentence of
such convict by reducing it from death to imprisonment for life.
It has already been mentioned by us above that after recording
of their convictions and sentences by the learned trial court in
the year 1991 the appellants' sentences of death had been
confirmed by the Lahore High Court, Lahore in the year 1999
and they had then approached this Court through Criminal
Petitions in the year 1999 wherein leave to appeal was
granted to them in the year 2004. Now after about fourteen
years of their approaching this Court and after spending more
than twenty-five years of their lives in custody, out of which
Crl. R.P. 103 of 2017
period they have spent about twenty-two years in death-cells,
the appellants' appeals have come up for decision before this
Court. We have also observed above that the stark reality
staring us in the face is that both the appellants have already
spent in custody a period more than a full term of
imprisonment for life and if we uphold their sentences of death
at this late stage then the appellants would, for all practical
purposes, be punished with death after spending a period in
custody which is more than a full term of imprisonment for life
and such a bizarre situation may run contrary to the letter and
the spirit of section 302(b), P.P.C. which provides for a
sentence of death or a sentence of imprisonment for life. Such a
case may not strictly be termed as a case of double
punishment but it can more appropriately be called a case of
an unconscionably delayed punishment, delayed to such an
extent that the punishment is aggravated beyond the
contemplation of the relevant law itself.”
4.
Their lordships in Hassan have observed that both the appellants
remained incarcerated for more than a full term of imprisonment for life,
therefore, after serving life term, maintaining death sentences awarded to
the appellants would be a bizarre situation, which may run contrary to
the letter and spirit of section 302(b) PPC. Under such circumstances,
considering their long detention in prison as one of the grounds for a
lesser punishment, the sentences of death awarded to Hassan and
another were converted into imprisonment for life each.
5.
Besides, this Court in the case of Sikandar Hayat 4 has again
endorsed the ratio decided in Dilawar Hussain, and has held that delay
in final conclusion of the case is to be considered as a mitigating
circumstance for conversion of death sentence into life imprisonment.
Paragraph 13 of the judgment is relevant, which is reproduced herein
below:
13. The right of expectancy of life, as presently viewed in our
jurisdiction is, inter alia, a right of a convict sentenced to
death, who while consciously pursuing his judicial remedies
provided under the law has remained incarcerated for a period
equal or more than that prescribed for life sentence. The courts
have considered this delay in the final judicial determination of
a convict's fate to be one of the mitigating circumstances for the
commuting sentence of death to life imprisonment. This positive
application of discretion by the appropriate court is regarded
as the rule of expectancy of life.
4 PLD 2020 SC 559
Crl. R.P. 103 of 2017
6.
However, in the case of Khalid Iqbal, a Five-Member Bench of this
Court has taken a slightly different view, holding that delay in the
execution of sentence alone is no ground for mitigation. In Para 9 of the
said judgment, the case of Dilawar Hussain has been distinguished as
under:
“This Court in the case of Dilawar Hussain (supra) had
commuted the sentence of Dilawar Hussain from death to life
imprisonment, not on the sole ground that the convict remained
incarcerated in the death cell for 18 years but also considering
other factors to reduce the quantum of sentence….”
7.
In Khalid Iqbal, this Court opined that in addition to delay in
execution of sentence, any other mitigating circumstance is also
necessary for awarding lesser punishment. However, at the same time,
the learned Members concurred with the view taken by this Court in
Dilawar Hussain that long detention of the convict for no fault of his has
resulted into completion of his life term, being one of the sentences,
provided under section 302(b) PPC, as such, he cannot be sentenced
twice. By applying such principle, it was observed that the convict Khalid
Iqbal had exhausted all his legal remedies but the Executive did not
process his case for execution of death sentence. He remained in death
row for more than imprisonment for life. Consequently, the sentence of
death awarded to Khalid Iqbal was converted into imprisonment for life.
8.
This Court in the case of Hassan was faced with almost a similar
situation, wherein, at Paragraph 21 of the judgment, it was held as
under:
“…Upon the analogy of sections 497, 426 and 382-B, Cr.P.C.
noted above the legislative intent may lean in favour of
extending some relief to the appellants placed in such a
predicament which is not of their own making and the least
that this Court can do for them in such an unfortunate situation
is to exercise its discretion in the matter of their sentences by
reducing their sentences of death to imprisonment for life on
the basis of the facts and circumstances of the case detailed
above and also on the basis of the principle of expectancy of
life. In the case in hand after committing the abominable crime
of murder the appellants have been vegetating and rotting in
death cells awaiting their execution for so long that they now
appear to have become victims themselves, victims of a
monumental systemic failure which the system must
acknowledge and own and in return it should extend the
appellants some respite or reparation.”
Crl. R.P. 103 of 2017
Crux of the discussion in the light of the referred judgments of this
Court is that longstanding detention in prison up to or more than the
period of imprisonment for life is a complete and distinct punishment, as
provided by section 302(b) PPC. The death row prisoner is kept in solitary
confinement and inhuman conditions, despite the fact that it is not a
part of the sentence.
9.
In light of the above discussion, we would consider the case in
hand. By the time, when his appeal was dismissed by this Court on
28.10.2015, the petitioner remained incarcerated for about 25 years,
without earning remissions. Despite confirmation of his death sentence
by this Court, the petitioner is awaiting execution of his sentence for the
last nine years. The case of the petitioner is at a higher pedestal as
compared to the convicts of the above-referred cases. It is a fact that till
date, the petitioner has served out a sentence of more than 34 years
without earning remissions, out of which, he remained incarcerated in
death cell for about 24 years. If remissions are counted, his detention
may come to almost forty years. The living conditions in death cell are
miserable and altogether different from the living conditions of other
prisoners, including lifers. In death cell, the convict is under a strict
supervision, surveillance and is isolated. The space of a cell provided for
each condemned prisoner is about 9 x 12 feet, with a single toilet to be
used jointly by all the prisoners confined in their respective cells, which
compromises their privacy. The prisoner is permitted to go out of the cell
twice a day, but only for half an hour each. The death row prisoner is not
permitted to participate in any extracurricular activities, nor is entitled
for the benefits and rights available to other prisoners, incarcerated in
general prison. The convict is forced to live in such an inhuman
condition. The date and time of execution of his sentence is uncertain,
which in the given circumstance results into horrible feelings and creates
anxiety. It is not just the prisoner who suffers, it’s the family too, who
serves the penalty by way of mental torture, in taking care of him, while
incarcerated.
10.
The petitioner is awaiting execution of his death sentence and till
date, which is uncertain. He has served out his sentence for more than
life term and that too, in a miserable and inhuman condition while
incarcerated in death cell for twenty four years, which has compromised
his personal values and dignity. Because of the fact that the courts are
overburdened, it takes years and sometimes decades in conclusion of the
Crl. R.P. 103 of 2017
proceedings in normal course. The delay in conclusion of judicial
proceedings and execution of sentence awarded to the petitioner was on
account of the system, hence, was beyond his control. Due to this hard
fact, the petitioner has faced the agony of prolonged criminal
proceedings, hence, is a victim of circumstances, therefore, he cannot be
penalized for the act of the Court or the Executive. He fulfils the criteria
laid down by this Court in the above-referred judgments. A longstanding
delay upto or above the period of imprisonment for life is one of the
grounds necessary for awarding lesser punishment, keeping in view the
principle of expectancy of life. Facts and circumstances of the case in
hand enable us to exercise our discretion by converting the sentence of
death awarded to the petitioner to that of imprisonment for life.
11.
In a number of cases, we have observed that after confirmation of
death sentence by the High Court, the convict(s) are shifted to death
cells, where they are kept for years and sometimes for decades, on
account of delay in conclusion of criminal proceedings and thereafter, for
execution of their sentence by the Executive. There is no doubt that after
confirmation of death sentence, the convict must face its consequence
but the delay in conclusion of criminal proceedings and thereafter, delay
in executing the death sentence of a convict would amount to punishing
him twice for one and the same act, which is neither permissible under
the law nor under the injunctions of Islam. Awarding death sentence to a
person does not mean that he/she be treated inhumanly by keeping
them in death cell for long unlimited period of time. All prisoners living in
death cell are not only deprived of their constitutional rights, but they
also live under mental stress. Once the judgment attains finality, it must
be implemented and executed at the earliest. The issue of prisoners
detained in death cell once came up before the Federal Shariat Court in
the case of Dr. Muhammad Aslam Khaki5
, which declared section 30 of
the Prison Act, 1894 repugnant to the injunctions of Islam. In the said
judgment, the Federal Shariat Court has issued certain directives to the
Government, but it seems that the said judgment has not been acted
upon.
12.
Even otherwise, to enjoy the equal protection of law and to be
treated in accordance with law is an inalienable right of every citizen
enshrined in Article 4 of the Constitution of the Islamic Republic of
Pakistan, 1973 (‘Constitution’). Likewise, Article 14 of the Constitution
5 PLD 2010 FSC 1Crl. R.P. 103 of 2017
provides that the dignity of a man shall be inviolable. His conviction does
not disentitle him from his constitutional rights. All the prisoners are
subject to prison law and rules in vogue, but these must not be
inconsistent with or in derogation of the fundamental rights. The reality
of increased number of cases causes delay in their disposal and it also
takes considerable long period of time to execute death sentence, which
result in prolonged detention of prisoners, hence, the prisoners spend
the best period of their lives in prison. The issue of prisoners came up
before the United Nations, which issued the United Nations Standards
Minimum Rules for the Treatment of Prisoners (‘Nelson Mandela Rules’).
According to Rule 3 of the Nelson Mandela Rules, the conditions of
imprisonment should not be used as an additional punishment or
aggravate the inherent suffering of detention. Pakistan being a member of
the United Nations, ratified the same. The existing prison laws are
outdated. There is no effort to make them in accordance with the
international standard. Even these laws are not properly implemented.
13.
We have observed that such an important human rights issue has
escaped the attention of the Federal as well the Provincial Governments,
because it is not on their priority. It is, therefore, need of the hour that
the Federal Government and the Provincial Governments must
reconsider the prisoners laws, enabling the prisoners to be treated in
accordance with law, to enjoy the equal protection of law. Prisons should
provide an atmosphere to prisoners in order to maintain their human
identity and respect, their personal values, especially, a dignity which is
their constitutional right, especially those incarcerated in death cells.
14.
It is also important to mention here that the President has a power
to pardon a death row prisoner, as provided by Article 45 of the
Constitution. The prisoners in death cells present mercy petitions before
the President through concerned Superintendent Jail, but mostly they
are filed after considerable period of time without any explanation.
Besides, there is no procedure or mechanism in vogue nor is there any
limitation for filing and deciding the mercy petitions by the President,
hence, it takes years to decide. This is also one of the causes of delay in
execution of the sentence of death. The matters pertaining to submission
and disposal of mercy petitions also require consideration. All the
respective governments should consider making of policy, enacting laws
and/or amending the existing laws, in line with the international
Crl. R.P. 103 of 2017
standards, in order to minimize the period of detention of death prisoners
in death cells to a possible minimum extent.
Thus, in view of the above, the petition is partly allowed. The
judgment under review dated 28.10.2015 passed in Crl. Appeal No. 643
of 2009 is upheld, with modification in the quantum of sentence.
Resultantly, the conviction of the petitioner, Ghulam Shabbir, under
section 302(b) PPC is maintained, however, death sentences awarded to
him on two counts are converted into imprisonment for life on two
counts, with benefit of section 382-B, Code of Criminal Procedure. The
conviction and sentence of the petitioner under section 307 PPC are
upheld. All the sentences shall run concurrently.
Judge
Judge
Judge
Announced in Open Court on __________________
Judge
Copies of the judgment be sent to:
•
The Secretary, Ministry of Interior, Government of Pakistan.
•
All the Provincial Chief Secretaries and Secretaries, Home
Departments.
•
The Attorney General for Pakistan, Advocates General and
Prosecutors General of all the Provinces.
K.Anees and Waqas Ahmed, LC
Approved for Reporting