IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
Mr. Justice Mushir Alam 
Mr. Justice Qazi Faez Isa 
 
Criminal Petition No.751 of 2017 
Against the order dated 31.5.2017 passed by 
High Court of Sindh, Sukkur in Cr. Jail Appeal 
No.S-44 of 2009 
 
Muhammad Juman   
Petitioner(s) 
VERSUS 
 
The State & others 
Respondent(s) 
 
 
 
For the Petitioner(s) 
: Mr. M. Amjad Iqbal Qureshi, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
For the State  
 
: 
 
Mr. Zafar Ahmed Khan, Addl. PG. 
Sindh 
 
For the Respondent(s)  
 
: 
 
Mr. 
Adil 
Aziz 
Qazi, 
ASC 
a/w 
Respondents No.2-5 
 
 
 
Date of Hearing 
: 23.11.2017 
 
ORDER 
 
Mushir Alam, J-  Muhammad Juman-Petitioner/Complainant has 
impugned the order dated 31.5.2017 passed by the learned Bench of the 
High Court of Sindh Bench, Sukkur whereby the  accused nominated in 
Crime No.30 of 2005 for an offence under sections 302,34,PPC registered at 
Police Station Padidan, District Nausheroferoze, faced the trial, charge was 
established and conviction was handed down by the learned trial Court 
under section 302(b) PPC read with  section 149 PPC and  sentenced  them 
to suffer R.I for life as Ta’zir  and to pay fine in the sum of Rs.50,000/- (fifty 
thousand only) each, as compensation to the legal heirs of the deceased 
Abdul Sattar  with benefit of section 382-B Cr. PC.  
 
2. 
The conviction was challenged by the convicts the learned Bench of 
the High Court vide impugned order dated 31.5.2017 while maintaining the 
conviction under section 302(b) PPC reduced the sentence to already 
undergone (i.e. respondent  No.2 Gul Hassan served out twelve years 
Respondents No. 3 to 5 namely Bahadur, Abdul Haque and Ali Hassan, 
respectively having served out imprisonment for a period of eight years, 
two months and twenty eight days at the time of impugned  judgment) 
Criminal Petition No.751 of 2017 
 
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and the appellant therein were ordered to be released forthwith, if not 
required in any other case.  
 
3. 
It was contended by the learned counsel for the petitioner- 
complainant that the learned High Court, while passing the order 
impugned, did not consider that no case for mitigation and or reduction of 
the sentence “already undergone” was made out. Once the conviction is 
maintained under section 302(b) PPC the punishment provided is ‘death or 
imprisonment for life as Ta’zir’ and nothing short thereof. According to him, 
there is nothing on record to show that the learned Bench of the High Court 
treated or converted the conviction recorded under section 302(b) PPC to 
one under section 302(c) PPC wherein the Court could have reduced the 
sentence of any magnitude less than life, provided circumstances were 
shown to exist to mitigate the sentence. He therefore, prays for setting 
aside of the impugned order and seeks direction to remand back the 
Respondents No.2 to 5 to jail to serve out the sentence awarded by the 
leaned trial Court. 
  
4. 
Learned Additional Prosecutor General, Sindh has no cavil to the 
proposition recorded above, according to him without recording any 
mitigating circumstances sentence could not have been reduced and that 
too less than what is prescribed under section 302(b) PPC, without 
converting the conviction to one under section 302(c) PPC . 
  
5. 
Learned counsel for the respondents No.2 to 5, submits that on the 
merits it was a fit case for acquittal, and in alternate conversion of 
sentence under section 302(c) PPC, which in substance was treated so by 
the learned High Court. He however, concedes that the Court did not 
record any mitigating circumstance to convert the sentence. It was urged 
that since the respondents 2 to 5 are illiterate villager they were satisfied to 
be released from jail on whatever terms and conditions. It was for such 
reasons that the learned counsel then appearing before the Court had no 
qualm to treat the sentence already undergone instead of contesting the 
matter to earn acquittal and for converting the sentence under section 
302(c) PPC, he submits that he has no objection if the matter is remanded 
to the High Court with direction to hear the parties on merits and record the 
finding accordingly. 
 
Criminal Petition No.751 of 2017 
 
3
6. 
Learned counsel for the respondents No.2 to 5, submits that since the 
respondents 2 to 5 have shown respect to the order of this Court and on 
notice have surrendered and appeared before this Court, they have 
already served out substantial sentence as already noted above.  Jail 
Petition was filed on 24.4.2009, which remained pending for considerable 
period, till they were ordered to be released on 31.5.2017, therefore, 
impugned sentence be suspended till decision of Jail Petition by the High 
Court, in case conviction is maintained they would invariably be sent to jail 
to serve out the remaining sentence. In case they earn acquittal or even 
conversion of sentence under section 302(c) PPC, their lost liberty cannot 
be compensated. Learned Advocate General, Sindh on such score and in 
view of the peculiar facts and circumstances of case has no objection to 
the suspension of sentence till the hearing and decision by the learned 
Bench of the High Court. Learned ASC for the Petitioner, requests for 
direction to decide the Jail Appeal at an early date. 
 
7. 
Heard the arguments and perused the record. Sentence is the 
punishment recognized and prescribed under Pakistan Penal Code, 
(section 54 PPC) to which the offender are liable and which could be 
inflicted on a person, who is proved guilty of an act or omission (offence), 
under the Pakistan Penal Code, at the trial, by the Court of competent 
jurisdiction. Once a person is proved guilty of an offence, the Court trying 
the offender looking at the gravity of offence, the manner in which offence 
is committed and other attending circumstances may inflict any quantum 
of the sentences as may be prescribed under the charging provision, it 
cannot be less nor more than what is prescribed. Sentence inflicted within 
the parameter prescribed by the law is ‘legal sentence’, which a Court of 
law is competent to inflict. It is the only the appellate and or revisional 
Court as the case may be, reverse the finding of conviction and or 
sentence and acquit or discharge the accused, modify and or alter the 
finding and or nature of conviction and quantum of sentence and any 
consequential or incidental order that may be just, proper and adequate 
(see sections 423, 439, 439-A Cr.P.C). Sentencing is one of the most 
important and intricate task, which a criminal Court has to perform while 
handing down a conviction after conclusion of a criminal trial. Inflicting 
conviction and imposing sentence is not a mechanical exercise but it is 
onerous responsibility to inflict, fair, reasonable and adequate sentence, 
commensurate with gravity and or severity of crime, looking at the motive, 
attending and or mitigating circumstances that provoked or instigated 
Criminal Petition No.751 of 2017 
 
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commission of crime and it involves conscious application of mind. No 
mathematical formula, standard or yard stick could be prescribed or set 
out to inflict conviction and sentence, such factors vary from case to case 
and while undertaking such exercise Court must keep in sight provisions 
contained in Chapter-III and IV of the PPC. Unfortunately, no sentencing 
guideline is laiddown in Pakistan, though Courts have set out certain 
parameters in many cases as to what is mitigating and or aggravating 
circumstances that may warrant alteration and or varying in conviction 
and or sentence within the parameters of provided under the charging or 
penal provision. For illustration one may see case of Ghulam Murtaza and 
another versus The State (PLD 2009 Lahore 362), arising out of an appeal 
under the CNS Act 1997, and is more than often cited for the purposes of 
sentencing accused convicted under the Control of Narcotics Substances 
Act of 1997, in cited case elaborate exercise has been undertaken to 
prescribe sentencing an accused convicted of carrying or possessing  
different types and quantity of contraband, in paragraph 10 thereof it was 
held that “In the  matter of sentence a Court may depart from the norms 
and standards prescribed above but in all such cases the Court concerned 
shall be obliged to record its reasons for such departure.” One may also 
see Ameer Zeb versus The State (PLD 2012 Supreme Court 380) and 
Nadeem Ashraf versus The State (2013 SCMR 1538).  
 
8. 
Attending to the merits of case in hand in the light of above 
discussion, the respondents 2 to 5 all were charged for an for  “Qatl-e-Amd 
of deceased Abdul Sattar under section 302 PPC read with section 149 
PPC”. Punishment for Qatal-e-Amd is provided for under section 302 PPC as 
follows:  
                        “(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 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 clause (c) shall apply where the 
principle of fasad-fil-arz is attracted and in such cases only 
clause (a) or clause (b) shall apply.”  
Criminal Petition No.751 of 2017 
 
5
In the instant case learned trial Court came to a conclusion that the 
“Prosecution has proved its case against the accused persons namely Gul 
Hassan, Bahadur, Abdul Haque, Ali Hassan beyond any shadow of 
reasonable doubt. As regards the sentence, I think that since the accused 
are of young age and also close relatives to each other, therefore, there 
are mitigating circumstances to award lesser punishment. I, therefore, 
convict the accused persons namely Gul Hassan, Bahadur, Abdul Haque,  
Ali Hassan, for the offences punishable u/s 302(b) PPC Read with Section 
149 PPC, and thereby sentence them to suffer S.I Imprisonment for Life as 
Ta’zir and to pay a fine of Rs.50,000/- each as compensation to the legal 
heirs of deceased Abdul Sattar.”.  
 
9. 
As noted above, learned trial Court came to a conclusion that 
accused persons have committed an offence chargeable under section 
302(b) PPC, which section provide either of the two legal sentences, viz. 
“death” OR “imprisonment for life.” Learned trial Court considered ‘young 
age of the accused’ and being close relative to each other” as mitigating 
circumstances to award lesser of the two legal sentences provided under 
section 302(b) PPC viz. “imprisonment for life” and not “with death”, the 
maximum sentence as provided under the charging provision. 
     
10. 
As noted above, through impugned order, appellate Court while 
maintaining the conviction under section 302(b) PPC modified the 
sentence to “already under gone”, without application of mind and in a 
mechanical fashion, as noted above, either of the two legal sentence for 
an offence under section 302(b) PPC is provided viz. “death” OR 
“imprisonment for life” and nothing in-between, shorter or greater. In case 
the 
Appellate 
Court, 
looking 
at 
the 
attending 
and 
mitigating 
circumstances was convinced that the sentence awarded is sever and or 
that mitigating and or other attending circumstances existed or that the 
case is covered by any of the legal exception or that case of the 
respondent fell under clause (c) to section 302 PPC, and also beyond the 
pale of proviso thereto, it was only than Court could have exercised the 
discretion to award any term of sentence or punishment “with 
imprisonment of either description for a term which may extend to twenty 
five years…..”  
 
11. 
In the instant case as noted above, learned Bench of the High Court, 
without application of mind and recording any reasons to alter a sentence, 
Criminal Petition No.751 of 2017 
 
6
in a mechanical manner, reduced the sentence as already undergone, 
which is not a legal sentence within the contemplation of section 302(b) 
PPC. It is only when the appellate Court is convinced that the case fell 
within clause (c) of section 302 PPC than only it is proper for the appellate 
Court to modify and or vary the conviction from section 302(b) to 302(c) 
PPC and award sentence as has been done, provided also, after being 
satisfied that the case is not one of honour killing, an exception, per proviso 
thereto. 
    
12. 
Under facts and circumstances of case, we set aside the impugned 
order. The Criminal Jail Appeal No.S-44 of 2009 shall be deemed to be 
pending and it is expected that the learned Bench as may be assigned will 
hear and decide the appeal preferably within a period of thirty days from 
the date of receipt of the copy of this order. Since it is an old matter 
preference may be given to decision of the appeal. In peculiar 
circumstances of the case, we are inclined to accede to the request of the 
learned counsel for the respondents 2 to 5 to suspend the sentence 
awarded by the learned trial Court. Learned counsels for the complainant 
as well as the convicts and Additional Prosecutor General undertake that 
they shall appear before the Sindh High Court and make all endeavours to 
render assistance for the disposal of the case in accordance with law at an 
earliest. The respondents 2 to 5 present before us shall furnish bail bonds 
and sureties in the sum of Rs.50,000/- (fifty thousand only) each in the like 
amount to the satisfaction of the Nazir of the High Court of Sindh, within 15 
days from the date of receipt of copy of this order.  
 
13. 
Accordingly, the petition is converted into appeal, and allowed in 
terms noted above.  
  
 
 
       
 
 
 
JUDGE 
 
 
Islamabad 
23rd November, 2017 
 
   Arshed 
 
JUDGE 
 
 
   Approved for Reporting. 
 
 
