IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Anwar Zaheer Jamali 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Amir Hani Muslim 
 
 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
(Against the judgment dated 18.02.1999 passed by the Lahore 
High Court, Lahore in Criminal Appeal No. 322 of 1991, Criminal 
Revisions No. 82 of 1992 & 178 of 1993 and Murder Reference No. 
499 of 1991) 
 
 
Hassan 
 
 
 
(in Cr. A. 13 of 2004) 
Sher Muhammad 
 
(in Cr. A. 14 of 2004) 
Sher Muhammad  
 
(in Cr. A. 15 of 2004) 
Sikandar, etc. 
 
 
(in Cr. A. 16 of 2004) 
Muhammad Hashim, etc. 
(in Cr. A. 53 of 2011) 
 
 
                                    … Appellants 
versus 
 
The State  
 
 
(in Cr. A. 13 of 2004) 
 
Ghulam Qadir 
 
 
(in Cr. A. 14 of 2004) 
Abdul Ghaffar 
 
 
(in Cr. A. 15 of 2004) 
The State  
 
 
(in Cr. A. 16 of 2004) 
The State  
 
 
(in Cr. A. 53 of 2011) 
 
 
 
                                    … Respondents 
 
For the Appellants: 
Sardar 
Muhammad 
Latif 
Khan 
Khosa, Sr. ASC  
(in Cr. A. 13 & 16  of 2004) 
Sh. Zamir Hussain, Sr. ASC 
(in Cr. A. 14 & 15 of 2004 & Cr. A. 
53 of 2011) 
 
 
 
 
 
 
For the State: 
 
 
Mr. Ahmed Raza Gillani, Additional  
Prosecutor-General, Punjab 
(in all cases) 
 
For respondents No. 1 to 3: 
N.R. (in Cr. A. 14 of 2004) 
 
For respondents No. 1 to 5: 
N.R. (in Cr. A. 15 of 2004) 
 
On Court’s Notice: 
Mirza 
Waqas 
Rauf, 
Additional 
Advocate-General, Punjab 
 
Syed 
Arshed 
Hussain 
Shah, 
Additional Advocate-General, KPK 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
2
 
Mr. 
Naseer 
Ahmed 
Baugulzai, 
Additional 
Advocate-General, 
Balochistan 
 
Dates of hearing: 
30.05.2013 & 31.05.2013 
 
 
JUDGMENT 
 
 
Asif Saeed Khan Khosa, J.: Leave to appeal had been 
granted by this Court in this case on 06.02.2004 and the order 
passed in that regard reads as follows: 
 
“These petitions for leave to appeal have been filed against 
the judgment dated 18th February 1999 passed by Lahore High 
Court, Lahore in Cr. A. 322/91, Cr. R. 82/1992 & Murder 
Reference No. 499 of 1991. 
 
2. 
Facts in brief leading to filing of above noted petitions are 
that an occurrence had taken place on 13th June 1986 at about 
2.30 p.m. in the area of Mustafa Abad about 12 miles from Police 
Station Luddan of District Vehari, a complaint in respect whereof 
was lodged by Muhammad Iqbal to the effect that he is a resident 
of Mustafa Abad and is a cultivator. On the day of occurrence he 
was returning home from Melsi in Jeep alongwith Mushtaq 
(deceased), Farrukh Mahmood (deceased), Ghulam Haider 
(deceased), Mohammad Yaqoob (PW-13) and Muhammad Nawaz 
(PW-10). When they reached near the Bhaini of Faqir Muhammad 
Arain suddenly firearm shots were fired at their Jeep as a result 
of which the front left tyre got punctured and even number of 
bullets had hit the Jeep at which Mushtaq (deceased) stopped the 
Jeep and all the occupant of the said Jeep came out of the same 
and started running to save their lives. The complainant also hid 
himself under the Jeep. He also added that he saw Sikandar 
armed with a .303 rifle, Manik armed with a .12 bore gun, Abdul 
Ghaffar also armed with a local gun, Khuda Bukhsh, Zahoor, 
Ghulam Qadir, Bahadur, Abdul Ghaffar son of Shahamand, 
Hashim, Qasim and Shahamand armed with hatchets and Hakim 
and Sultan armed with ‘Daangs’ sitting in the ambush. At a 
Lalkara raised by these accused persons, Sikandar appellant fired 
a shot which hit the face of Mushtaq deceased who was followed 
by Hassan appellant who fired a shot which landed on the front 
right chest of Farrukh deceased and who was then followed by 
Khuda Bukhsh appellant who inflicted a hatchet blow on the 
head of Ghulam Haider deceased whereafter the assailants armed 
with firearms resorted to indiscriminate firing as a result of which 
Mushtaq, Farrukh, Ghulam Haider, Nawaz and Yaqoob fell down 
injured. The complainant had further alleged that Khuda 
Bukhsh, Zahoor, Ghulam Qadir, Bahadur, Abdul Ghaffar, 
Hashim and Qasim then inflicted hatchets blows on the person of 
Farrukh deceased and Nawaz and Yaqoob P.Ws. The complainant 
had further disclosed that Mushtaq, Farrukh and Yaqoob P.Ws 
had received serious injuries on their persons. The complainant 
had also mentioned that in the meantime Mushtaq Ahmad 
Inspector (PW.18) had reached the spot hearing the report of 
firearms and had apprehended Sikandar, Bahadur, Zahoor and 
Abdul Ghaffar and Yaqoob accused at the place of occurrence 
alongwith their respective weapons of offence, whereas the other 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
3
accused made their escape good. Motive behind the occurrence 
was stated as in the year 1983, a sister’s son of Sikandar, namely 
Dur Muhammad Khand was murdered and the two brothers of 
Mohammad Iqbal complainant namely Mushtaq (deceased) and 
Gulzar were accused of the said murder out of whom Mushtaq 
deceased 
had 
secured 
his 
acquittal. 
This, 
according 
to 
complainant, induced the members of Khand brotherhood to 
launch an attack on the complainant party and about the 
grievance of the members of the Arain brotherhood amongst the 
accused persons, it was mentioned that in a land dispute, the 
complainant party used to help one Allah Ditta Arain while 
Shahamand accused and other Arain accused persons used to 
oppose him. On completion of usual investigation all the accused 
persons were sent up to face trial. As they did not plead guilty to 
the charge read over to them, therefore, prosecution led evidence 
to substantiate accusation against them. Learned trial Court vide 
its judgment dated 21st October 1991, after having gone through 
the evidence and hearing both the sides, acquitted Manik, Abdul 
Ghaffar son of Khuda Bukhsh, Yaqoob, Shahamand, Hakim and 
Sultan, whereas convicted Sikandar, Hassan, Khuda Bukhsh, 
Bahadur, Ghulam Haider, Zahoor, Hashim, Qasim and Abdul 
Ghaffar son of Shahamand. Upon their conviction under Section 
148 PPC each of them was sentenced to undergo one year R.I. 
Pursuant to their conviction under Section 307/149 PPC each of 
them was sentenced to suffer seven years R.I. with fine of 
Rs.1000/- each or one year R.I. and in case of default in payment 
of fine to undergo further R.I. for one year. Accused Sikandar, 
Hassan and Khuda Bukhsh were further convicted under Section 
302/149 PPC and sentenced to death whereas remaining accused 
namely Bahadur, Ghulam Qadir, Zahoor, Hashim, Qasim and 
Abdul Ghaffar son of Shahamand were sentenced to undergo 
imprisonment for life. On the murder charge each of them was 
also punished with a fine of Rs.15000/- or in default whereof to 
undergo two years R.I. They were also directed to pay Rs.15000/- 
each as compensation to the legal heirs of the deceased or to 
undergo six months R.I. in default thereof. Feeling dissatisfied all 
the accused persons approached to the Lahore High Court, 
Lahore by filing appeals. A murder reference was also sent by the 
trial Court for confirmation or otherwise of death sentence 
awarded to three accused, Sher Muhammad, Abdur Rab and 
Mohammad Yaqoob, being dissatisfied from acquittal of accused 
Manik, Abdul Ghaffar son of Khuda Bukhsh, Mohammad Yaqoob, 
Shahamand and Sultan accused. Sher Mohammad, Abdur Rab 
and Muhammad Yaqoob also filed appeal. Learned High Court, 
after having gone through the entire evidence produced by the 
parties, vide judgment dated 18th February, 1999, maintained the 
conviction/sentence of accused Sikandar, Hassan, Khuda 
Bukhsh, Bahadur, Zahoor and Hashim but acquitted Ghulam 
Qadir, Qasim and Abdul Ghaffar for giving them benefit of doubt. 
As such Criminal Petition No. 147-L and 168-L of 1999 have been 
filed by accused Hassan, Sikandar and Khuda Bukhsh against 
their conviction and sentence whereas Criminal Petitions No.156-
L and 157-L of 1999 have been filed by Sher Mohammad against 
acquittal of Ghulam Qadir etc. and Abdul Ghaffar etc.  
 
3. 
We have heard learned counsel for the parties and have 
also gone through the material available on record carefully. In 
our opinion petitioners Sikandar son of Allah Bukhsh, Khuda 
Bakhsh son of Allah Ditta and Hassan son of Shahamand have 
made out a case for grant of leave to appeal for the purpose of 
reappraisal of evidence in the interest of justice particularly in 
view of the fact that some of the accused who were apprehended 
at the spot alongwith accused Sikandar have been acquitted of 
the charge either by the trial Court or by the High Court, whereas 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
4
he has been convicted for the offence charged against him. It is to 
be seen that main reason prevailed upon the learned trial Court 
and High Court to found him guilty for the commission of the 
offences is that a .303 rifle was recovered from his possession 
which otherwise could not be treated as crime weapon in absence 
of recovery of bullets of .303 and positive firearms expert report. 
Similarly so far as the case of Khuda Bukhsh petitioner is 
concerned, he was stated to be arrested on 16th June 1986 as per 
statement of PW-Muhammad Saadullah Khan but incriminating 
crime weapon was recovered from him on 5th June 1986, much 
beyond the period of police remand thus, prima facie, his 
involvement in the commission of offence has become doubtful. 
Likewise no incriminating article has been recovered from 
accused Hassan but without any corroboration he has been 
convicted. 
 
4. 
As far as petitions filed by the complainant against 
acquittal of the respondents Ghulam Qadir, Qasim and Abdul 
Ghaffar are concerned, questions involved in these petitions are 
required to be examined in depth for the purpose of safe 
administration of justice as it has been pointed out that some of 
the accused were apprehended at the spot and crime weapons 
were also recovered from them but they have been acquitted of 
the charge, therefore, in these petitions as well, leave to appeal is 
granted. 
 
5. 
Office is directed to issue bailable warrants of arrest of 
respondents Ghulam Qadir, Qasim and Abdul Ghaffar in the sum 
of Rs. 100,000/- (Rupees one lac) returnable to the District and 
Sessions Judge, Vehari. 
 
6. 
In pursuance of our earlier order dated 5th March 2002, 
office has submitted a report that no Jail Petition has been filed 
by Zahoor, Bahadur and Hashim. However, office is directed to 
send a letter to the Superintendent New Central Jail, Multan with 
direction to him to inquire from the convicts as to whether they 
have filed any Jail Petition or not. If any Jail Petition had been 
filed by them and is pending for decision, office may fix the same 
alongwith criminal appeals arising out of above noted criminal 
petition on an early date.” 
 
On 06.03.2008 when these appeals were fixed for regular hearing 
this Court had passed the following order: 
 
“The convicts in these appeals are in jail for the last about 
twenty-two years and are in death cell waiting for the fate of their 
appeals for the last about seventeen years.  
 
2. 
This Court in Abdul Malik and other Vs. The State and 
others (PLD 2006 SC 365) in the light of principle of double 
punishment in terms of the mandate of the Constitution, held 
that the imposition of sentence of death notwithstanding the 
period of detention in jail, is not in conflict to the concept of 
protection against double punishment in terms of Article 13 of the 
Constitution and may not be a consideration to withhold the 
death penalty.  
 
3. 
The question which arises for the essential consideration, 
is that detention in jail as condemned prisoner for a long period 
without disposal of appeal is not rigorous of imprisonment in 
addition to the substantive sentence of death awarded to a 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
5
convict and is not in conflict to the spirit of Article 13 of the 
Constitution. The second limb of the question requiring 
consideration, is whether non-disposal of cases involving death 
penalty within the statutory period or at-least in reasonable time 
is not denial of the right of access to justice and fair treatment in 
terms of fundamental right of a person. 
 
4. 
We find that the above right of condemned prisoners, has 
not been considered in the judgment referred to above in 
consequence to which the question as to whether the execution of 
sentence of death awarded to a convict after he had undergone 
the rigorous of life imprisonment in jail as condemned prisoner is 
in consonance to the spirit of Article 13 read with Article 9 of the 
Constitution, would essentially need examination. In view thereof, 
we deem it proper to send this matter to the Hon’ble Chief Justice 
of Pakistan for constitution of larger Bench for examination of the 
above question, which was not as such considered in Abdul Malik 
and others Vs The State and others (PLD 2006 SC 365). 
 
5. 
The matter is of a great public importance, therefore, we 
deem it proper to direct that the learned Attorney General for 
Pakistan, learned Advocate Generals of Provinces and also 
learned Prosecutor Generals of the Provinces will assist the Court. 
We also request Syed Sharif-ud-Din Pirzada, learned Sr. ASC, Mr. 
Khalid Anwar, learned Sr. ASC, Syed Abdul Hafeez Pirzada, 
learned Sr. ASC to assist the Court in the matter as amicus 
curiae. 
 
5-A. 
The learned counsel for the appellants has requested that 
the convicts in the present appeal and such other appeals are in 
jail since long therefore, the Hon’ble Chief Justice of Pakistan 
may be requested for a direction for early fixation of all such 
cases together before the proposed Bench. The request being 
genuine, the Hon’ble Chief Justice of Pakistan may consider the 
same in the larger interest of justice.” 
 
None of the learned amici curiae has entered appearance at the 
time of final hearing of these appeals and we have heard elaborate 
arguments advanced by the learned counsel for the convicts-
appellants, the learned counsel for the complainant, the learned 
Additional Prosecutor-General, Punjab appearing for the State, the 
learned 
Additional 
Advocate-General, 
Punjab, 
the 
learned 
Additional Advocate-General, Khyber Pakhtunkhwa and the 
learned Additional Advocate-General, Balochistan and have gone 
through the record of the case with their assistance.  
 
2. 
The case in hand pertains to an alleged murder of three 
persons and causing of hurt to some others in Mauza Mustafa 
Abad situated within the area of Police Station Luddan, District 
Vehari and FIR No. 131 was registered in that regard at Police 
Station Luddan, District Vehari on the same day at 04.35 P.M. for 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
6
offences under sections 302/307/148/149/379, PPC. After a full-
dressed trial the learned Additional Sessions Judge, Vehari 
conducting the trial acquitted Manik, Abdul Ghaffar son of Khuda 
Bakhsh, Yaqoob, Shahamand, Hakim and Sultan accused vide 
judgment dated 21.10.1991 whereas through the same judgment 
he convicted and sentenced Sikandar, Hassan, Khuda Bakhsh, 
Zahoor, 
Ghulam 
Qadir, 
Bahadur, 
Abdul 
Ghaffar 
son 
of 
Shahamand, Hashim and Qasim accused for various offences. 
Sikandar, Hassan, Khuda Bakhsh, Ghulam Qadir, Abdul Ghaffar 
son of Shahamand, Zahoor, Bahadur, Qasim and Hashim accused 
were convicted for an offence under section 148, PPC and were 
sentenced to rigorous imprisonment for one year each. Sikandar, 
Hassan, Khuda Bakhsh, Zahoor, Ghulam Qadir, Bahadur, Abdul 
Ghaffar son of Shahamand, Hashim and Qasim accused were also 
convicted on three counts of an offence under section 302, PPC 
read with section 149, PPC for causing the death of Mushtaq, 
Farrukh Mehmood and Ghulam Haider in prosecution of their 
common object. Sikandar, Hassan and Khuda Bukhsh accused 
were sentenced to death each on each count and to pay a fine of 
Rs. 15,000/- or in default of payment thereof to undergo rigorous 
imprisonment for two years each. They were also ordered to pay 
Rs. 15,000/- each to the heirs of the deceased on each count by 
way of compensation under section 544-A, Cr.P.C. or in default of 
payment thereof to undergo simple imprisonment for six months 
each on each count. The remaining convicts namely Zahoor, 
Ghulam Qadir, Bahadur, Abdul Ghaffar son of Shahamand, 
Hashim and Qasim were sentenced to imprisonment for life each 
on each count and to pay a fine of Rs. 15,000/- each on each 
count or in default of payment thereof to undergo rigorous 
imprisonment for two years each on each count. They were also 
ordered to pay a sum of Rs. 15,000/- to the heirs of the three 
deceased by way of compensation under section 544-A, Cr.P.C. or 
in default of payment thereof to undergo simple imprisonment for 
six months each on each count. The learned trial court further 
convicted Khuda Bakhsh, Zahoor, Ghulam Qadir, Abdul Ghaffar 
son of Shahamand, Bahadur, Hashim, Qasim, Sikandar and 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
7
Hassan accused for an offence under section 307, PPC read with 
section 149, PPC and sentenced them to undergo rigorous 
imprisonment for seven years each and to pay a fine of Rs. 5,000/- 
each or in default of payment thereof to undergo rigorous 
imprisonment for one year each. The learned trial court had 
ordered that the sentences of imprisonment passed against the 
convicts 
under 
sections 
148/307/149, 
PPC 
would 
run 
concurrently and the benefit under section 382-B, Cr.P.C. would 
be extended to the convicts. All the nine convicts challenged their 
convictions and sentences before the Lahore High Court, Lahore 
through Criminal Appeal No. 322 of 1991 which was heard along 
with Murder Reference No. 499 of 1991 seeking confirmation of the 
sentences of death passed by the learned trial court and Criminal 
Revision No. 82 of 1992 filed by a member of the complainant 
party seeking enhancement of the sentences of imprisonment for 
life passed against six convicts to death and Criminal Revision No. 
178 of 1993 filed by a member of the complainant party seeking 
setting aside of the acquittal of those accused persons who had not 
been convicted by the learned trial court. A learned Division Bench 
of the Lahore High Court, Lahore decided all the above mentioned 
matters on 18.02.1999 through a consolidated judgment whereby 
the sentences of death passed by the learned trial court against 
Sikandar, Hassan and Khuda Bakhsh convicts were upheld and 
confirmed, the sentences of imprisonment for life passed by the 
learned trial court against Bahadur, Zahoor and Hashim convicts 
were maintained but it was ordered that their sentences of 
imprisonment for life would run concurrently and the sentences of 
imprisonment passed against six convicts on two counts of an 
offence under section 307, PPC read with section 149, PPC were 
also upheld and the same were also ordered to run concurrently. 
The extension of the benefit under section 382-B, Cr.P.C. by the 
learned trial court to all the convicts ordered to undergo sentences 
of imprisonment was affirmed by the learned Division Bench. The 
learned Division Bench, however, set aside the convictions and 
sentences of Ghulam Qadir, Qasim and Abdul Ghaffar son of 
Shahamand convicts and they were acquitted of the charge. The 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
8
Murder Reference was answered accordingly and both the revision 
petitions filed by the complainant party were dismissed. Hence, the 
present appeals by leave of this Court granted on 06.02.2004. 
 
3. 
Criminal Appeal No. 53 of 2011 has been filed before this 
Court by Muhammad Hashim, Bahadur and Zahoor convicts who 
had been sentenced by the learned trial court to imprisonment for 
life each on three counts of the charge of murder and their 
convictions and sentences had been upheld by the Lahore High 
Court, Lahore. The learned counsel for the appellants has pointed 
out that the said convicts-appellants have already served out their 
sentences in their entirety and they have already been released 
from the jail. He has, thus, submitted that he does not press this 
appeal any further. Criminal Appeal No. 53 of 2011 is, therefore, 
dismissed as having not been pressed.  
 
4. 
Criminal Appeal No. 13 of 2004 has been filed before this 
Court by Hassan convict who had inter alia been sentenced to 
death on three counts of a charge of murder and his sentences of 
death had been confirmed by the Lahore High Court, Lahore. 
Criminal Appeal No. 16 of 2004 has been filed before this Court by 
Sikandar and Khuda Bakhsh convicts who had also inter alia been 
sentenced to death each on three counts of a charge of murder and 
their sentences of death had also been confirmed by the Lahore 
High Court, Lahore. We have been informed that Khuda Bakhsh 
appellant has already died and, thus, his appeal has abated and 
for this reason the learned counsel for the convicts-appellants has 
pressed Criminal Appeal No. 16 of 2004 only to the extent of 
Sikandar appellant. Criminal Appeal No. 14 of 2004 has been filed 
by a member of the complainant party seeking setting aside of the 
acquittal of Ghulam Qadir, Qasim and Abdul Ghaffar son of 
Shahamand accused who had been convicted by the learned trial 
court but were acquitted by the Lahore High Court, Lahore. 
Finally, Criminal Appeal No. 15 of 2004 has also been filed by a 
member of the complainant party seeking setting aside of the 
acquittal of Abdul Ghaffar son of Khuda Bakhsh, Manik, 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
9
Muhammad Yaqoob, Shahamand and Sultan accused who had 
been acquitted by the learned trial court and their acquittal had 
been upheld by the Lahore High Court, Lahore.  
 
5. 
Taking the case of the convicts sentenced to death first, we 
note that Hassan convict is the appellant in Criminal Appeal No. 
13 of 2004 and Sikandar convict is the only surviving appellant in 
Criminal Appeal No. 16 of 2004 and both the said appellants had 
inter alia been convicted by the learned trial court on three counts 
of a charge of murder and had been sentenced to death each on 
each count. After making a feeble attempt at arguing their case on 
the merits the learned counsel for the said appellants has 
submitted that he shall mainly concentrate on seeking reduction of 
the said appellants’ sentences of death to imprisonment for life in 
view of some peculiarities of the case. In this context the learned 
counsel for the appellants has pointed out that according to the 
FIR itself and also according to the statements of the eyewitnesses 
produced by the prosecution it was the complainant party which 
had gone to the place of occurrence whereat the members of the 
accused party were already available and, thus, the case in hand 
could not be treated as a case of premeditation on the part of the 
accused party. He has also referred to the statements made before 
the learned trial court by Muhammad Saad Ullah Khan, 
Inspector/SHO (PW16) and Mian Mushtaq Ahmed, Inspector/SHO 
(PW18) who had categorically stated that the parties to this case 
had fought with each other and during such fight firing had been 
resorted to by both the parties. In this context the learned counsel 
for the appellants has drawn our attention to the FIR which 
mentioned that Mushtaq Ahmed deceased was carrying a rifle 
7MM with him at the time of occurrence and the relevant 
Memorandum of Recovery showed that as many as twenty crime-
empties of a rifle 7MM had been secured by the police from the 
place of occurrence. The learned counsel for the appellants has 
highlighted that according to the prosecution no accused person 
was armed with a rifle 7MM. He has also pointed out that although 
Sikandar appellant was allegedly armed with a rifle 303 yet no 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
10
crime-empty of a rifle 303 had been secured from the place of 
occurrence. The learned counsel for the appellants has, thus, 
maintained that the statements made by the above mentioned 
police officers regarding firing by both the parties at each other at 
the spot was a factor which established that the prosecution had 
suppressed the truth and the doubt created in that regard ought to 
be resolved in favour of the appellants at least by reducing their 
sentences of death to imprisonment for life. The learned counsel 
for the appellants has gone on to submit that neither Hassan 
appellant nor Sikandar appellant had caused any injury to 
Ghulam Haider deceased and, thus, the capital sentence passed 
against them even on that count of the charge was unwarranted. 
He has further submitted that both the convicts-appellants had 
fired at their victims only once and despite having an ample 
opportunity in that regard they had not repeated their fires which 
factor may also be relevant to the matter of their sentences. The 
learned counsel for the appellants has vehemently argued that 
both the said appellants have already undergone more than 
twenty-five years of imprisonment in connection with this case 
and, thus, if their sentences of death are upheld by this Court at 
this stage then the said appellants would be deemed to have been 
sentenced to death and imprisonment for life on each count of the 
charge of murder whereas the provisions of section 302(b), PPC 
stipulate that a person found guilty of murder can be sentenced to 
death or imprisonment for life. According to the learned counsel for 
the appellants in such an eventuality the appellants would be 
justified in maintaining that two sentences have been passed 
against them for committing the same offence which would militate 
against the Fundamental Right guaranteed by the Constitution of 
the Islamic Republic of Pakistan, 1973 under Article 13(a) thereof. 
He has also invoked the provisions of section 403, Cr.P.C., the 
concept of double jeopardy and the principle of expectancy of life in 
support of this argument. He has also relied in this respect upon a 
recent unreported judgment handed down by a 5-member Bench of 
this Court on 09.05.2013 in the case of Dilawar Hussain v. The 
State (Criminal Review Petition No. 72 of 2007 in Criminal Appeal 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
11
No. 200 of 2003). With these submissions the learned counsel for 
the convicts-appellants has prayed that the sentences of death 
passed against Hassan and Sikandar appellants may be reduced to 
imprisonment for life on each count.  
 
6. 
As against that the learned counsel for the complainant has 
vehemently argued that Hassan and Sikandar convicts-appellants 
have indeed undergone a period of custody which is more than a 
term of imprisonment for life but they have not spent that period in 
custody while undergoing any sentence of imprisonment for life 
and as a matter of fact and record they have spent that period in 
jail while waiting for exhaustion of their legal remedies and 
awaiting execution of their sentences of death. He has, therefore, 
maintained that the case in hand cannot be treated as a case of 
double jeopardy or double punishment so as to attract the 
provisions of Article 13(a) of the Constitution or of section 403, 
Cr.P.C. According to him the principle of expectancy of life already 
stands abandoned by this Court and, therefore, the same cannot 
be invoked in this case. During his submissions the learned 
counsel for the complainant has referred to the cases of Vasanta v. 
State of Maharashtra (AIR 1983 SC 361), Sher Singh and others v. 
State of Punjab (AIR 1983 SC 465) and Khurram Malik and others v. 
The State and others (PLD 2006 SC 354).  
 
7. 
The 
learned 
Additional 
Prosecutor-General, 
Punjab 
appearing for the State has referred to the case of Dila and another 
v. State of U.P. ((2002) 7 Supreme Court Cases 450) wherein the 
Supreme Court of India had declined to reduce a convict’s sentence 
leaving it to the State for taking a sympathetic view in the matter of 
the convict’s sentence.  
 
8. 
The learned Additional Advocate-General, Punjab appearing 
on the Court’s notice has pointed out that the provisions of 
sections 497, 426 and 382-B, Cr.P.C. manifest that where the 
State fails in its duty to provide expeditious justice to an accused 
person or a convict there the law extends some favours to him and 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
12
grants him some relief in terms of bail or suspension of sentence 
on the statutory ground of delay in his trial or appeal or in terms of 
counting his period of imprisonment as an under-trial prisoner 
towards his sentence after conviction. He has submitted that the 
cases of Abdul Malik and others v. The State and others (PLD 2006 
SC 365), Abdul Haq v. Muhammad Amin alias Manna and others 
(2004 SCMR 810), Iftikhar Ahmed Khan v. Asghar Khan and 
another (2009 SCMR 502), Aga Dinal Khan v. Saffar, etc. (NLR 2008 
Criminal 280) and Khurram Malik and others v. The State and 
others (PLD 2006 SC 354) throw sufficient light on the issues 
involved in this case.  
 
9. 
The 
learned 
Additional 
Advocate-General, 
Khyber 
Pakhtunkhwa has referred to the provisions of sub-section (5) of 
section 367, Cr.P.C. to maintain that the sentence of death is the 
normal punishment for an offence of murder and this Court may 
keep that in mind while considering the prayer made by the 
learned counsel for the convicts-appellants regarding reduction of 
the said appellants’ sentences of death to imprisonment for life. 
 
10. 
The learned Additional Advocate-General, Balochistan has 
maintained that the sentence of death and the sentence of 
imprisonment for life mentioned in section 302(b), PPC are 
alternative sentences and in a case where a convict sentenced to 
death undergoes a sentence equal to or more than a sentence of 
imprisonment for life while awaiting the outcome of his appeal then 
upholding his sentence of death by the appellate court would 
amount to sentencing the convict to death and imprisonment for 
life which would defeat the letter as well as the spirit of the 
provisions of section 302(b), PPC.  
 
11. 
After hearing the learned counsel for the convicts-appellants, 
the learned counsel for the complainant, the learned Additional 
Prosecutor-General Punjab appearing for the State and the learned 
Additional Advocates-General, Punjab, Khyber Pakhtunkhwa and 
Balochistan appearing on the Court’s notice and after attending to 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
13
the relevant facts of the case and the precedent cases cited before 
us we have straightaway found the learned counsel for the 
convicts-appellants to be somewhat justified in not seriously 
pressing the two appeals on the merits of the case because during 
the progress of the incident in issue the local police had reach the 
spot and Sikandar appellant had been arrested by the police at the 
spot with a firearm in his hands. The ocular account of the 
incident had been furnished by four eyewitnesses out of whom two 
had the stamp of injuries on their bodies to vouchsafe their 
presence at the scene of the crime at the relevant time. The motive 
set up by the prosecution had been admitted by the accused party 
in so many words and the same had provided corroboration to the 
ocular account. The medical evidence brought on the record had 
provided sufficient support to the ocular account. In these 
circumstances both the learned courts below, after assessing and 
evaluating the evidence in some detail, had concurred in their 
conclusion regarding the convicts-appellants’ guilt. The version of 
the incident advanced by the accused party had been duly 
attended by the learned courts below and for cogent and valid 
reasons the same had been rejected by them. It could, therefore, 
not be urged before this Court with any degree of seriousness that 
the prosecution had not been able to prove its case against the 
convicts-appellants beyond reasonable doubt.  
 
12. 
We have given serious and anxious consideration to the 
question of reduction of the sentences of death passed by the 
learned courts below against the convicts-appellants to sentences 
of imprisonment for life and have carefully examined all the 
submissions made before us in that regard from all the sides. We 
have found this to be correct that according to the prosecution’s 
own case it was the complainant party which had gone to the place 
of occurrence whereat the accused party was already present and, 
thus, it could well be that it was not a case of any premeditation 
on the part of the accused party and the incident in issue could 
have taken place when the parties, otherwise inimical towards 
each other, had come face to face by way of a chance encounter. In 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
14
a case lacking malice aforethought on the part of the accused party 
and in a case of an occurrence developing at the spur of the 
moment this Court, depending upon the circumstances of the case, 
generally looks at the matter of sentence with some degree of 
empathy and consideration. It is also borne out from the record, 
particularly from the statements made before the learned trial 
court by Muhammad Saad Ullah Khan, Inspector/SHO (PW16) and 
Mian Mushtaq Ahmed, Inspector/SHO (PW18), that the case in 
hand was a case of a fight between the parties during which firing 
had been resorted to by both the parties. The FIR itself had 
mentioned that Mushtaq Ahmed deceased was carrying a rifle 
7MM with him at the relevant time and during the spot inspection 
conducted by the police as many as twenty crime-empties of a rifle 
7MM had been secured from the place of occurrence. It was not the 
case of the prosecution that any of the accused persons in this 
case was carrying or had used a rifle 7MM. The record further 
shows that although according to the prosecution Sikandar 
convict-appellant was carrying a rifle 303 at the relevant time yet 
no crime-empty of rifle 303 had been secured from the spot. The 
accused party had maintained before the learned trial court that 
the complainant party had aggressed against it which led to cross-
firing between the parties but no independent evidence had been 
brought on the record by the accused party to support that stand 
taken by it. Be that as it may the fact remains that according to 
the investigating officers mentioned above, who were witnesses of 
the prosecution, there indeed took place cross-firing between the 
parties. It has already been observed by us above that it was the 
complainant party which had gone to the place of occurrence and 
in the occurrence that followed both the parties had fired at each 
other which makes it a case unsafe for conclusively holding that 
the appellants had committed the murders in issue with a 
predetermined mind and design. This aspect of the case, in its 
peculiar background, may call for withholding the extreme 
sentence of death. The learned counsel for the appellants is quite 
right in pointing out that Hassan and Sikandar appellants had not 
caused any injury to one of the murdered persons namely Ghulam 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
15
Haider and, thus, awarding them a sentence of death even on that 
count of the charge of murder appears to be rather excessive. It is 
also true that despite having an ample opportunity to cause more 
injuries to the complainant party by keeping on firing at it both the 
appellants namely Hassan and Sikandar had fired from their 
firearms only once causing one injury each to their victims. When 
incessant firing was taking place from both the sides, as is evident 
from the very large number of crime-empties secured from the 
place of occurrence, the said appellants could have fired more 
shots causing injuries to more persons of the opposite party but no 
such allegation had been levelled against them by the prosecution. 
This aspect of the case may also furnish some justification for 
reducing their sentences of death to those of imprisonment for life.  
 
13. 
The record shows that the occurrence in this case had taken 
place on 13.06.1986 and soon after the occurrence both the 
convicts-appellants namely Hassan and Sikandar had been 
arrested by the local police. The said appellants were convicted and 
sentenced to death, etc. by the learned trial court on 21.10.1991 
and during the trial they had remained on bail for about a couple 
of years. The said appellants are behind the bars continuously 
since 21.10.1991 and they are languishing in death-cells ever 
since, i.e. for a period of about twenty-two years. They had already 
spent about three years in jail as under-trial prisoners and if the 
remissions earned by them are to be counted towards their 
sentences then both of them have already spent more than twenty-
five years in custody in connection with the present case. 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 period they have spent about twenty-
two years in death-cells, the appellants’ appeals have come up for 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
16
decision before this Court. 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), PPC which 
provides for a sentence of death or a sentence of imprisonment for 
life. In the following paragraphs we proceed to examine this issue 
from all the diverse angles presented before us.  
 
14. 
The issue involved here is simple and straightforward, i.e. if 
a person has been sentenced to death in a case of murder and 
during the pendency of his appeal before this Court his period of 
custody equals or exceeds a full term of imprisonment for life then 
can/should his sentence of death be maintained by this Court 
despite the fact that he has already served out one of the two legal 
sentences provided for in section 302(b), PPC. The learned counsel 
for the appellants maintains that in such a situation this Court 
cannot, and must not, affirm the sentence of death and may 
reduce the same to imprisonment for life. In support of his stand 
he has invoked the provisions of section 403, Cr.P.C., the concept 
of double jeopardy, the principle of expectancy of life and the 
Fundamental Right guaranteed by Article 13(a) of the Constitution 
of the Islamic Republic of Pakistan, 1973. We have attended to 
each of such aspects in some detail with reference to the relevant 
provisions and the precedent cases. 
 
15. 
Section 403(1), Cr.P.C. provides as follows: 
 
“403. Persons once convicted or acquitted not to be tried for 
the same offence. 
(1) 
A person who has once been tried by a Court of competent 
jurisdiction for an offence and convicted or acquitted of such 
offence shall, while such conviction or acquittal remains in force, 
not be liable to be tried again for the same offence, nor on the 
same facts for any other offence for which a different charge from 
the one made against him might have been made under section 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
17
36, or for which he might have been convicted under section 
237.” 
 
(bold letters have been supplied for emphasis) 
 
      
It is quite obvious from a plain reading of the said section that the 
principles of autrefois acquit and autrefois convict contained in 
section 403(1), Cr.P.C. forbid a new trial after a conviction or 
acquittal on the basis of the same facts has attained finality but it 
is equally obvious that the said principles have no application to 
the case in hand wherein holding of a new trial is not in issue. It is 
true that in the case of Aziz Muhammad v. Qamar Iqbal and others 
(2003 SCMR 579) a passing reference had been made to section 
403, Cr.P.C. in the context of considering whether to enhance the 
sentence of a convict to death or not after he had already served 
out a legal sentence of imprisonment for life on a charge of murder 
but subsequently in the cases of Abdul Malik and others v. The 
State and others (PLD 2006 SC 365) and Iftikhar Ahmed Khan v. 
Asghar Khan and another (2009 SCMR 502) it had been clarified by 
this Court that the principles of autrefois acquit and autrefois 
convict contained in section 403(1), Cr.P.C. have no relevance to a 
case wherein the question under consideration in an appeal is not 
as to whether a new trial of the convict should be held or not but 
the issue is as to which sentence would be the appropriate 
sentence for a convict. It had been held by this Court in the case of 
Abdul Malik and others v. The State and others (PLD 2006 SC 365) 
that: 
 
“15. 
When the conviction or acquittal of a person is under 
challenge in appeal or revision the proceedings are neither 
fresh prosecution nor there is any question of second 
conviction or double jeopardy. It is by now a well settled 
principle of law that an appeal or revision is continuation of trial 
and any alteration of sentence would not amount to double 
jeopardy. In Kalawati and another v. The State of Himachal 
Pradesh AIR 1953 SC 131, the Court was called upon to comment 
on a similar question when it ruled in para. 9 of page 10 that, “---
- an appeal against an acquittal wherever such is provided by the 
procedure is in substance a continuation of the prosecution”.” 
 
(bold letters have been supplied for emphasis) 
 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
18
In the case of Iftikhar Ahmed Khan v. Asghar Khan and another 
(2009 SCMR 502) this Court had held as under: 
 
“9. 
In law, there are two legal maxims on this point:--- 
(i) 
Autrefois acquit and autrefois convict (formerly acquitted 
and formerly convicted) and the other is, 
(ii) 
Nemo debet bis vexari pro una et eadem causa (It is a rule 
of law that a man shall not be twice vexed for one and the same 
cause): 
Principles 
of 
autrefois 
acquit 
and 
autrefois 
convict 
are 
incorporated in section 403 of the Criminal Procedure Code, 
1898, which provides that persons once convicted or acquitted 
are not to be tried for the same offence. But this principle is not 
stricto sensu applicable to the facts and circumstances of the 
case in hand because convict is not being tried for the same 
offence again by any other Court as the present proceeding is, in 
fact, a continuation of the same proceeding which had 
commenced from the first Court. It is not a fresh or another 
round or trial of the proceeding against the accused after his 
conviction for the same offence.” 
 
We have, therefore, faced no difficulty in concluding that the 
provisions of section 403, Cr.P.C. are not attracted to the situation 
posed by the present case. The concept of double jeopardy is 
inseparably linked with the principles of autrefois acquit and 
autrefois convict and, thus, the said concept may also have little 
relevance to the case in hand.  
 
16. 
The precedent cases in this country show that the principle 
of expectancy of life may be relevant to three situations, i.e. firstly, 
where an unconscionable delay is occasioned in final disposition of 
a legal remedy being pursued by a condemned prisoner where the 
undergone period of his incarceration is less than that of a term of 
imprisonment for life; secondly, where the State or the 
complainant party is seeking enhancement of a sentence of 
imprisonment for life of a convict to death and before or during the 
pendency of such recourse the convict has already served out his 
entire sentence of imprisonment for life and he has, or has not yet, 
been released from the jail; and thirdly,  where a convict sentenced 
to death undergoes a period of custody equal to or more than a 
term of imprisonment for life during the pendency of his legal 
remedy against his conviction and sentence of death. Adverting to 
the first situation mentioned above we may observe that till about 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
19
a quarter of a century ago there was a general judicial trend to 
reduce a sentence of death of a convict on the charge of murder to 
a sentence of imprisonment for life if the convict had spent a long 
time in a death-cell awaiting confirmation or otherwise of his 
sentence of death by a High Court or affirmation of such sentence 
by this Court through deciding his appeal. Such reduction of 
sentence from death to imprisonment for life was based upon the 
principle of expectancy of life as throughout the period of his 
incarceration in a death-cell the convict was expecting that his life 
might be saved some day. In view of long delays in final disposition 
of such appeals, etc. on account of the ever increasing workload 
and in order to obviate miscarriage of justice through manoeuvred 
delays with the object of taking advantage of the principle of 
expectancy of life the judicial trend in this regard underwent a 
metamorphosis about a quarter of a century ago and the principle 
of expectancy of life vis-à-vis reduction of a sentence of death to 
imprisonment for life on the ground of delay was abandoned in this 
country. That changed approach, starting through the cases of 
Muhammad Aman v. The State (1987 SCMR 124) and Maqbool 
Ahmad and others v. The State (1987 SCMR 1059), continues to be 
followed till date as is evident from the cases of Moahzam Shah v. 
Mohsan Shah and another (1995 SCMR 1190), Raheem Bakhsh v. 
Abdul Subhan (1999 SCMR 1190), Muhammad Hanif and others v. 
The State and others (2001 SCMR 84), Muhammad Aslam and 
others v. The State and others (2001 SCMR 223), Khurram Malik 
and others v. The State and others (PLD 2006 SC 354) and Agha 
Dinal Khan v. Saffar and others (2008 SCMR 728).  
 
17. 
As regards the second situation referred to above this Court 
has repeatedly held that in such a situation a sentence of 
imprisonment for life passed against a convict on a charge of 
murder may not be enhanced to death because after serving out a 
legal sentence on such a charge the convict has legitimately 
entertained an expectancy of life. This approach is manifested by 
the cases of Mst. Razia Begum v. Jahangir and others (PLD 1982 
SC 302), Mst. Promilla and others v. Safeer Alam and others (2000 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
20
SCMR 1166), Amir Khan and others v. The State and others (2002 
SCMR 403), Aziz Muhammad v. Qamar Iqbal and others (2003 
SCMR 579), Abdul Haq v. Muhammad Amin alias Manna and others 
(2004 SCMR 810), Abdul Malik and others v. The State and others 
(PLD 2006 SC 365), Haji Tahir Hussain v. Sqlain and others (2008 
SCMR 817) and Iftikhar Ahmed Khan v. Asghar Khan and another 
(2009 SCMR 502). In some of those cases while basing its 
judgment on the principle of expectancy of life this Court had also 
referred in passing to the provisions of section 403, Cr.P.C. and to 
the concept of double jeopardy but in the last mentioned case 
reliance had particularly been placed upon the provisions of Article 
13(a) of the Constitution as well. The most elaborate judgment 
concerning this category of cases is that handed down by this 
Court in the case of Abdul Malik and others v. The State and others 
(PLD 2006 SC 365) and it was held and declared in that case as 
follows: 
 
“20. 
There is no rule of general application that the serving 
out of sentence during the pendency of appeal or revision, by 
itself, would constitute a bar for enhancement of sentence or 
that any exercise to do that effect would be violative of 
Article 13 of the Constitution. This could be one factor which 
the Court may consider, along with other factors and the 
principles referred to in para. 18 above, while deciding the 
question of enhancement. 
 
21. 
We are mindful of the fact that this Court did not enhance 
sentence of convicts from life imprisonment to death who had 
already undergone the sentence in some cases. But the 
consideration of having already undergone the sentence was 
considered along with other circumstances in not enhancing the 
sentence and in some cases there was an oblique reference to 
provisions of Article 13 of the Constitution. A brief comment 
on those cases would be pertinent here:-- 
 
---------------------------------------------- 
 
An analysis of the afore-cited precedent case law of this 
Court would show that mostly there were multiple factors which 
weighed with the Court in not enhancing the sentence and the 
circumstance that a convict has already undergone the sentence 
also weighed with the Court. Reference to Article 13 of the 
Constitution as a ground was made in two cases only namely 
2003 SCMR 579 and 2004 SCMR 810. In Muhammad Sharif 
supra (PLD 1976 SC 452), the Court did not lay down that 
enhancing the sentence would amount to second punishment for 
the same offence. Nevertheless, this Court in a subsequent case 
(PLD 1982 SC 302) while relying on the former judgment 
(Muhammad Sharif supra) observed that enhancing the sentence 
from life to death would have the effect of punishing the offender 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
21
for the same offence again. The other cases namely 2003 SCMR 
579, 2000 SCMR 1166 and 2004 SCMR 810 are the leave 
refusing orders and there was neither any elaborate discussion 
nor adjudication with regard to the application of Article 13 
of the Constitution in situations where the convict has 
already undergone the sentence of imprisonment during the 
pendency of appeal. In both these cases the judgment of this 
Court in Muhammad Ilyas v. Muhammad Sufian (2001 SCMR 
465) (sic) was neither referred to nor discussed. In this case 
bar of Article 13 was pleaded by the convicted, but his 
sentence was enhanced to death, and this argument was 
repelled. At para. 474 it was observed as under:-- 
 
“We are not persuaded to agree with learned ASC 
on behalf of the convict/respondent that the 
convict/respondent has already undergone the 
sentence awarded by the learned Appellate Court 
and accordingly at this belated stage the judgment 
of the trial Court could not be restored in view of 
the Doctrine of Expectancy of life for the reason 
that “as regards the doctrine of expectancy of life, 
in view of the chronic delays 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 
(1) 
Muhammad Khan v. Dost Muhammad (2) and Mst. 
Razia Begum v. Hijrayat Ali and 3 others (3) and 
the doctrine like that of falsus in uno falsus in 
omnibus is rarely and exceptionally invoked by this 
Court.” (Muhammad Sharif v. Muhammad Javed 
PLD 1976 SC 452; the State v. Rab Nawaz and 
another PLD 1974 SC 87; Abdus Sattar v. 
Muhammad Anwar and 6 others PLD 1974 SC 
266; Asadullah v. Muhammad Ali and 5 others 
PLD 1971 SC 541 and Mst. Nuran v. Nura and 
another 
PLD 
1975 
SC 
174.” 
(Emphasis is 
supplied). 
 
This judgment still holds the field and has not been re-visited.” 
 
(bold letters have been supplied for emphasis) 
 
We note that the above mentioned case of Iftikhar Ahmed Khan v. 
Asghar Khan and another (2009 SCMR 502) had been decided by a 
3-member Bench of this Court whereas the afore-quoted case of 
Abdul Malik and others v. The State and others (PLD 2006 SC 365) 
had been decided by a 5-member Bench of this Court. In such a 
situation usually the view expressed by a Bench of greater 
numerical strength is to be followed even if its view was expressed 
prior in time to a different view expressed by a Bench of smaller 
numerical strength at some subsequent stage. What follows from 
the discussion made above is that in a case wherein the convict 
sentenced to imprisonment for life has already served out his 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
22
entire sentence of imprisonment for life there the Court may, in its 
discretion, not enhance his sentence of imprisonment for life to 
death and while considering the issue of such enhancement of 
sentence the Court may, as per the judgment rendered in the case 
of Abdul Malik and others v. The State and others (PLD 2006 SC 
365), consider the provisions of Article 13(a) of the Constitution 
along with the other factors for deciding whether the sentence of 
imprisonment for life passed against the convict may be enhanced 
to death or not. Be that as it may this situation is not relevant to 
the appeals under consideration as the issue herein is not as to 
whether any convict’s sentence of imprisonment for life may be 
enhanced to death or not. 
 
18. 
This brings us to the third situation mentioned above 
regarding the principle of expectancy of life, i.e. where a convict 
sentenced to death undergoes a period of custody equal to or more 
than a term of imprisonment for life during the pendency of his 
legal remedy against his conviction and sentence of death. Such a 
case recently came up for hearing before a 5-member Bench of this 
Court and it was held by it that the convict had “acquired 
expectancy of life” and it reduced the sentence of death of the 
convict on the charge of murder to imprisonment for life. That was 
the case of Dilawar Hussain v. The State (Criminal Review Petition 
No. 72 of 2007 in Criminal Appeal No. 200 of 2003, decided on 
09.05.2013). The relevant passages from the judgment delivered by 
this Court in that case are reproduced below: 
 
“8. 
Section 302(b) of Pakistan Penal Code provides only two 
sentences, one death sentence and the other imprisonment for 
life. In order to better appreciate the contention of the learned 
Counsel for the petitioner that only one sentence out of two would 
be awarded to the petitioner, provisions of section 302 PPC are 
reproduced below for facility of reference:- 
 
“302. Punishment of Qatl-i-amd – Whoever 
commits qatl-i-amd shall, subject to the provisions 
of this Chapter be – 
(a) 
punished with death as qisas; 
(b) 
punished with death or imprisonment for 
life as ta’zir having regard to the facts and 
circumstances of the case, if the proof in either of 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
23
the forms specified in section 304 is not available; 
or 
(c) 
punished with imprisonment of either 
description for a term which may extend to twenty-
five years where according to the injunctions of 
Islam the punishment of qisas is not applicable. 
Provided that nothing in this clause shall apply to 
the offence of qatl-i-amd if committed in the name 
or on the pretext of honour and the same shall fall 
within the ambit of clause (a) or clause (b), as the 
case may be.”  
 
According to section 302(b) of the Pakistan Penal Code the person 
committing qatl-i-amd shall be punished with death or 
imprisonment for life as ta’zir having regard to the facts and 
circumstances of the case if the proof in either of the forms 
specified in section 304 PPC is not available. The counter 
argument raised by the learned counsel for the complainant that 
prolonged detention of the person convicted for an offence under 
section 302(b) PPC as a result of the delay in the conclusion of his 
trial and disposal of the appeal is not by itself sufficient to declare 
him entitled to the lesser penalty under section 302(b) PPC is 
nothing but departure from the intent of the legislature as the law 
itself has tackled the situation in which the Court has to select 
one out of the two sentences of the offence. -------------------- 
 
9. 
----------------------- Even otherwise, it would be unjust 
to impose double sentence on the petitioner for commission 
of one offence as by keeping the accused in death cell for a 
period of 18 years, the delay in the disposal of his case being 
not at all attributable to him, it will be against the principle 
of natural justice that he is hanged by neck. In this view of the 
matter, we are of the considered view that such extenuating 
circumstances do exist in the matter in the instant case for 
giving the benefit thereof to the petitioner. ------------------------- 
 
10. 
After having found in the scheme of criminal litigation that 
the discretion lies with this Court either to go for maintaining the 
sentences of death of the convict or to convert it into 
imprisonment 
for 
life, 
keeping 
in 
view 
the 
facts 
and 
circumstances of the case, we would have to first define the term 
‘life imprisonment’ and have also to see whether such conversion 
would meet the ends of justice. ------------------------ 
 
11. 
In view of the afore-quoted provisions of law it is crystal 
clear as the light of day that life imprisonment mean twenty five 
years rigorous imprisonment. ----------------------- In the instant 
case the petitioner is being incarcerated in the death cell for 
the last 17 years, one month and five days and by efflux of 
time he has also earned remissions for 18 years, eight 
months and ten days. ------------------------ 
 
12. 
------------------------- In the instant case the petitioner has 
not only served out one sentence provided under section 302(b) 
PPC but has also suffered the agonies of his remaining 
incarcerated in the death cell for a quite long period. In such 
circumstances, while keeping in view the principle of 
abundant caution we are of the considered view that the 
petitioner has made out a case for review of the earlier judgment 
of this Court. 
 
13. 
The doctrine of expectancy of life has been dealt with in 
the case of --------------------------- 
 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
24
14. 
Although the argument of the learned counsel for the 
complainant not to consider the doctrine of expectancy of life as a 
mitigating circumstance for lesser penalty, yet, the facts of the 
instant case are different from the aforesaid case as in that case 
the convict had not undergone one of the two legal sentences 
provided under section 302 PPC whereas in the instant case 
the petitioner having been incarcerated in the death cell for a 
quite long time of eighteen years and earning remissions almost 
for the same period has acquired expectancy of life for which he 
is entitled -----------------------. The aforesaid factors provide for 
mitigation for lesser penalty, as such, we, in the interest of 
justice, hold that the petitioner has been able to make out a case 
for lesser sentence.” 
 
(bold letters have been supplied for emphasis) 
 
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.  
 
19. 
Now we turn to Article 13(a) of our Constitution which 
incorporates a Fundamental Right and reads as follows: 
 
“13. 
No person – 
(a) 
shall be prosecuted and punished for the same offence 
more than once; or 
(b) 
-----------------------” 
 
The word “punished” appearing in the said Article cannot be lifted 
out of context or read in isolation and, to us, the words 
“prosecuted and punished” used therein are conjunctive and not 
disjunctive. We understand that all that the said provision of the 
Constitution does is to recognize the age-old maxims and 
jurisprudential principles of autrefois acquit and autrefois convict 
and to grant them the status of a Fundamental Right which right 
cannot be violated or abridged and against which no legislation can 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
25
be passed. We understand that 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 
legal remedy against his conviction and sentence of death the 
principle relevant to the question of reduction of his sentence of 
death to imprisonment for life would be that of expectancy of life 
along with the peculiar facts and circumstances of the case rather 
than the question of applicability or otherwise of Article 13(a) of the 
Constitution as the convict in such a case is neither to be 
prosecuted again nor punished again. The only issue involved in 
such a situation would be a possible variation of the sentence of 
the convict which is hardly relevant to the principles of autrefois 
acquit and autrefois convict meant by Article 13(a) of the 
Constitution to be elevated to the status of a Fundamental Right. 
We are of the considered view that a situation like this only 
involves issues of propriety of sentence and exercise of discretion 
by the court concerned in that regard and not an issue of any 
right, not to speak of a Fundamental Right, earned by a convict. 
We are, therefore, not surprised to notice that in the case of Abdul 
Malik and others v. The State and others (PLD 2006 SC 365) a 5-
member Bench of this Court had refused to accept direct 
applicability of Article 13(a) of the Constitution to such a situation 
and later on in the case of Dilawar Hussain v. The State (Criminal 
Review Petition No. 72 of 2007 in Criminal Appeal No. 200 of 2003, 
decided on 09.05.2013) another 5-member Bench of this Court 
had not even deemed it necessary or relevant to refer to Article 
13(a) of the Constitution while accepting the review petition and 
reducing 
the 
convict-petitioner’s 
sentence 
of 
death 
to 
imprisonment for life inter alia on the ground that he had already 
spent a period of time in custody which was more than a term of 
imprisonment for life. In the latter case this Court had referred 
only to “natural justice”, “extenuating circumstances”, “abundant 
caution” and “expectancy of life” for reduction of the convict’s 
sentence. In this background the reference made to and the 
reliance placed upon Article 13(a) of the Constitution by a 3-
member Bench of this Court in the case of Iftikhar Ahmed Khan v. 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
26
Asghar Khan and another (2009 SCMR 502) in a similar context 
may be treated as per incuriam. While dwelling upon the issue of 
Fundamental Rights of a convict sentenced to death it may be 
interesting to mention here that in India the issue at hand was 
looked at from another angle and in the case of T. V. Vatheeswaran 
v. The State of Tamil Nadu (AIR 1983 SC 361(2)) it was declared by 
the Supreme Court of India that if the sentence of death passed 
against a convict on the charge of murder was not executed within 
a period of two years then the sentence of death ought to be 
quashed and reduced to imprisonment for life because such delay 
in execution of the sentence of death militated against the convict’s 
Fundamental Right to life and liberty guaranteed by the Indian 
Constitution. The said judgment was, however, quickly overruled, 
and understandably so, by the Supreme Court of India in the case 
of Sher Singh and others v. State of Punjab (AIR 1983 SC 465).             
 
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) 
In a case where delay is occasioned in final 
disposition of a legal remedy being pursued by a 
convict sentenced to death on a charge of murder and 
where the undergone period of his incarceration is less 
than that of a term of imprisonment for life there the 
principle of expectancy of life for its use for the 
purpose of reduction of the sentence of death to 
imprisonment for life stands abandoned by the courts 
of this country. 
 
(b) 
In a case where the State or the complainant 
party is seeking enhancement of a sentence of 
imprisonment for life of a convict to death and before 
or during the pendency of such recourse the convict 
serves out his entire sentence of imprisonment for life 
and he has, or has not yet, been released from the jail 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
27
there the principle of expectancy of life is still relevant 
for not enhancing the sentence of imprisonment for life 
to death. Article 13(a) of the Constitution is not 
directly relevant to such a situation but the spirit of 
that Article may be considered in such a case as a 
factor along with the other factors like expectancy of 
life and the facts and circumstances of the case, etc. 
for not enhancing the sentence of imprisonment for life 
to death at such a late stage.   
 
(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. 
After attending to the mitigating circumstances available in 
the facts and circumstances of this case and after deliberating 
upon the issues concerning section 403, Cr.P.C., double jeopardy, 
expectancy of life and Article 13(a) of the Constitution we now 
proceed to briefly advert to some other submissions made before 
us. We note that by virtue of Article 37(e) of the Constitution it is a 
responsibility of the State to “ensure inexpensive and expeditious 
justice”. It is probably in this context that through the provisions 
of sections 497, 426 and 382-B, Cr.P.C. the legislature itself 
intends to provide some relief to an accused person or a convict in 
a criminal case if the State has not been able to fulfil its 
constitutional responsibility of providing him expeditious justice. If 
an accused person’s trial is not concluded within a specified period 
section 497, Cr.P.C. contemplates bail for him, if a convict’s appeal 
is not decided within a particular period section 426, Cr.P.C. 
provides for suspension of his sentence and release on bail and if a 
trial is unduly prolonged then section 382-B, Cr.P.C. makes it 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
28
possible that the period of detention of an accused person during 
the trial may be counted towards determination or calculation of 
his sentence of imprisonment passed after conviction. 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 his sentence of death for such a 
long time that his period of custody stretches 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 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), PPC 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 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
29
punishment, delayed to such an extent that the punishment is 
aggravated beyond the contemplation of the relevant law itself. 
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.  
 
22. 
We are, however, conscious of the ingenuity and craftiness of 
a human mind and it can be visualised by us that the observations 
made by us above may possibly be misused in future through 
clever machinations of a convict whose neck is on the line. We, 
therefore, make it clear that the observations made above shall not 
be applicable to any delay caused by the Executive in processing or 
deciding a condemned prisoner’s mercy petition or in executing his 
sentence of death after his judicial remedies have been exhausted. 
The said observations shall also not be applicable to a case 
wherein the convict is himself demonstrably and significantly 
responsible for the delay occasioned in conclusion of his judicial 
remedies.            
 
23.  Upon the strength of the provisions of sub-section (5) of 
section 367, Cr.P.C. it has been maintained before us that the 
normal sentence for an offence of murder is death and while 
considering a prayer for reduction of a sentence of death passed 
against a convict this Court may remain mindful of that statutory 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
30
stipulation. We have found such a submission to be suffering from 
multiple misconceptions. Sub-section (5) of section 367, Cr.P.C. 
provides as follows: 
 
“(5) 
If the accused is convicted of an offence punishable with 
death, and the Court sentences him to any punishment other 
than death, then the Court shall in its judgment state the reason 
why sentence of death was not passed.” 
 
We have not been able to find anything in the said provision of law 
even hinting at the sentence of death being the normal sentence in 
such a case. Section 302(b), P.P.C. clearly provides for two 
alternative sentences, i.e. sentence of death or sentence of 
imprisonment for life for the offence of murder and it does not state 
that any one of those sentences is to be treated as the normal 
sentence. As a matter of fact section 302(b), P.P.C. itself mentions 
that any one of the two alternative sentences provided for therein 
is to be passed “having regard to the facts and circumstances of 
the case”. There are cases wherein “the facts and circumstances of 
the case” do not warrant a sentence of death and what is required 
by sub-section (5) of section 367, Cr.P.C. is that such facts and 
circumstances of the case ought to be mentioned by the trial court 
in its judgment so that the higher Courts may straightaway 
become aware of the same while entertaining or deciding a 
challenge thrown again the trial court’s judgment. We believe that 
the general misunderstanding or misconception about the true 
import of the provisions of sub-section (5) of section 367, Cr.P.C. 
entertained by the legal community, including the courts, in this 
regard needs to be removed and rectified. The other misconception 
about sub-section (5) of section 367, Cr.P.C. is that it is considered 
to be applicable to the entire hierarchy of criminal courts whereas 
that is not the case. Sub-section (5) of section 367, Cr.P.C. is 
placed in Chapter XXVI of Part VI of the Code of Criminal 
Procedure, 1898 and Part VI of the Code pertains only to 
‘Proceedings in Prosecutions’ before a trial court. The matters 
pertaining to the appellate and revisional courts are provided for in 
Part VII of the Code and that Part of the Code does not contain any 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
31
provision akin or similar to that of sub-section (5) of section 367, 
Cr.P.C. It is, thus, evident that the requirements of sub-section (5) 
of section 367, Cr.P.C. are relevant only to a trial court and they 
have no application to an appellate or revisional court. The 
provisions of section 423(1)(b), Cr.P.C. unambiguously show that it 
is well within the powers of an appellate court seized of an appeal 
against conviction to reduce the sentence of a convict and the 
requirement relevant to a trial court, as contained in sub-section 
(5) of section 367, Cr.P.C., is not to be found in section 423(1)(b), 
Cr.P.C. The powers conferred upon a revisional court under 
sections 435 and 439, Cr.P.C. also clearly demonstrate that while 
exercising revisional jurisdiction a sentence can be reduced and, 
again, the requirement relevant to a trial court, as contained in 
sub-section (5) of section 367, Cr.P.C., is not to be found in 
sections 435 and 439, Cr.P.C. It, therefore, goes without saying 
that when an appellate or revisional court is considering a question 
of propriety or otherwise of a sentence passed against a convict the 
provisions of sub-section (5) of section 367, Cr.P.C. cannot be 
pressed into service before it and any question of the sentence of 
death being the normal sentence is hardly relevant before the 
appellate and revisional courts.            
 
24. 
As a consequence of the discussion made above we have 
concluded that on account of the mitigating circumstances oozing 
out of the facts and circumstances of this case and also on account 
of the principle of expectancy of life the sentences of death passed 
against Hassan and Sikandar convicts-appellants on all the counts 
of murder contained in the charge framed against them ought to be 
reduced to imprisonment for life. Criminal Appeals No. 13 and 16 
of 2004 are, therefore, partly allowed, the sentences of death 
passed against Hassan and Sikandar convicts-appellants on all the 
relevant counts of the charge are reduced to sentences of 
imprisonment for life and the remaining convictions and sentences 
of the said appellants are maintained. All the sentences of 
imprisonment passed against them shall run concurrently and 
they shall be extended the benefit under section 382-B, Cr.P.C. 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
32
Criminal Appeal No. 16 of 2004 has already abated to the extent of 
Khuda Bakhsh appellant who has died. Criminal Appeals No. 13 
and 16 of 2004 are disposed of in these terms. 
 
25. 
As far as Criminal Appeal No. 14 of 2004 is concerned we 
have observed that Ghulam Qadir, Qasim and Abdul Ghaffar son 
of Shahamand respondents had been acquitted by the Lahore High 
Court, Lahore on the grounds that none of them had been arrested 
at the spot; they were not saddled with any specific injury on the 
person of any of the victims; no independent corroboration was 
forthcoming to their extent; and, therefore, they were entitled to be 
acquitted by extending the benefit of doubt to them. We have 
noticed that the occurrence in this case had taken place in the 
year 1986 and the said respondents had earned their acquittal 
from the Lahore High Court, Lahore way back in the year 1999, i.e. 
about fourteen years ago. In this backdrop the learned counsel for 
the appellant has not pressed this appeal with any degree of 
vehemence. The reasons recorded by the Lahore High Court, 
Lahore for acquitting the said respondents have not been found by 
us to be fanciful or perverse. In these circumstances no occasion 
has been found by us for interference with the said respondents’ 
acquittal. Criminal Appeal No. 14 of 2004 is, therefore, dismissed. 
 
26. 
As regards Criminal Appeal No. 15 of 2004 we have noticed 
that Abdul Ghaffar son of Khuda Bakhsh, Manik, Muhammad 
Yaqoob, Shahamand and Sultan respondents had been acquitted 
by the learned trial court in the year 1991 and their acquittal had 
not been interfered with by the Lahore High Court, Lahore in the 
year 1999. It had been observed by the learned courts below that 
Manik, Abdul Ghaffar son of Khuda Bakhsh and Muhammad 
Yaqoob respondents had not been attributed any specific injury in 
the FIR but during the trial the prosecution witnesses had 
improved the version contained in the FIR and had attributed 
effective firing to them. It had also been noticed by the learned 
courts below that even Shahamand respondent had not been 
attributed any effective role in the FIR but the prosecution 
Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 
 
33
witnesses had made improvements in that regard before the 
learned trial court and had alleged that he had played an active 
part in the incident. It had particularly been observed by the 
learned trial court that Shahamand and Sultan respondents were 
old and infirm persons and the allegations levelled by the 
prosecution against them were even otherwise difficult to be 
accepted at their face value. The learned counsel for the appellant 
has failed to point out any misreading or non-reading of the 
evidence on the part of the learned courts below and the reasons 
recorded by the learned courts below for recording acquittal of the 
said respondents have not been found by us to be arbitrary. In 
these circumstances there is hardly any occasion for us to interfere 
with acquittal of the said respondents. Criminal Appeal No. 15 of 
2004 is, therefore, also dismissed.   
 
27. 
These are the detailed reasons for the short order announced 
by us on 31.05.2013 which reads as follows: 
 
         “After hearing the arguments of learned ASCs for the 
appellants, Additional Prosecutor-General, Punjab, Additional 
Advocate-Generals, Punjab, KPK and Balochistan Criminal 
Appeals No. 13 and 16 of 2004 are partly allowed to the extent 
that the sentences of death penalty awarded to the appellants 
Hassan and Sikandar are converted into imprisonment for life on 
each count which shall run concurrently. Further benefit under 
section 382-B, Cr.P.C. is also extended to them.”  
 
2. 
Criminal Appeals No. 14 & 15 of 2004 are dismissed. 
Criminal Appeal No. 53 wherein all the three convicts-appellants 
have already served out their entire sentences is dismissed as not 
pressed.  
 
3. 
Reasons for this short order to follow separately.” 
 
  
Judge 
 
Judge 
 
Judge 
Islamabad 
31.05.2013 
Approved for reporting. 
  
Arif 
