1997 P Cr (PLP)

BASHARAT AHMAD SHAIKH, J.

This is a review petition on the point of sentence. The petitioner was awarded sentence of "Qisas" by the trial Court against which he filed appeal before the Shariat Court. The finding of guilt recorded by the trial Court was upheld by the Shariat Court but the sentence of "Qisas" was converted into life imprisonment. The convict and the complainant both filed appeals before this Court. The appeal filed by the convict was dismissed while appeal filed by the complainant was accepted on the point of sentence and the order of the trial Court was restored. However, the sentence of "Qisas" awarded was substituted by sentence of death under section 3 of Islami Tazeerati Qawaneen Nifaz Act. The prayer in the present petition is that the sentence of life imprisonment may be imposed on the petitioner after reviewing the judgment. The arguments addressed by the learned counsel for the petitioner may be summarized as follows:-- (i) while discussing the question of sentence it has been observed in the judgment sought to be reviewed that the age of the deceased was twenty-two years but it is settled proposition of law that the age of the deceased is not relevant on the point of sentence; (ii) although it was alleged but the motive was not proved and in such a situation death penalty is not imposed by Courts; (iii) it has been incorrectly observed in the judgment sought to be reviewed that the victim was chased by the petitioner; (iv) it has been incorrectly observed in the judgment of this Court that there was no provocation or altercation before the actual attack on the deceased. According to the learned counsel for the petitioner these are errors apparent on the face of the record and the sentence of the death is not sustainable. He placed reliance on Barkat Ali v. Arshad, Ali 1994 SCMR 492 in which the statement of a particular witness was disbelieved by the trial Court and was given no weight by the High Court but the Supreme Court overlooked that fact and it was held that it was an error apparent on the face of the record. Consequently the appeal was ordered to be reheard on merits. Ch. Muhammad Sharif Tariq, the learned counsel for the complainant, vehemently opposed the arguments advanced on behalf of the petitioner. He inter alia submitted that even if motive is not proved sentence of death can be awarded. On this point he relied on Usman Khalid v. Muhammad Yunus and another 1996 SCR 197 and Wali Muhammad and 3 others v. The State 1975 PCr.LJ

63. He also submitted that the petitioner was nineteen years old and that he was not entitled to any consideration on the basis of age. He further submitted that fact that the petitioner inflicted one other blow when victim had fallen down showed that it was a deliberate act on part of the petitioner. On the question of sentence the settled law is that if a case of murder is proved against an accused person normal sentence, which is to be awarded is death. For awarding the lesser sentence of life imprisonment there should be some recognized reasons. This rule applies more rigidly to the case under the Islami Tazeerati Qawaneen Nifaz Act. Section 302 of the Penal Code, as it existed before the recently promulgated amendments, provided two sentences as under:-- "302 Punishment for murder.

Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine. " On the contrary, section 5 of the Islami Tazeerati Qawaneen Nifaz Act prescribes "Qisas" as the only sentence if the offence of "Qatl-e-Amd" is proved. The relevant part of the section 5, as translated is as follows:-- "Whoever commits the offence of 'Qatl-e-Amd' shall be liable to Qisas' .." It clearly shows that for the offence of "Qatl-e-Amd", "Qisas" is the only sentence. However, an exception is made in section 24 of the Act and it lays down that if there are reasons mentioned in that section then other sentences given in under section 3 of the Act can be awarded. Death is one of the sentences mentioned in section

3. Keeping these principles in view the Court does not have to record reasons for awarding sentence of death. It is only when the sentence of death is not being awarded that the question of recording reasons arises. Therefore, the matter under consideration is to be decided in that light. In the judgment sought to be reviewed it has been specifically laid down as follows:-- "Thus, there is no mitigating circumstance in the case. The result is that the normal sentence, death penalty, has to be imposed as was rightly done by the trial Court. " While deciding the appeal reasons recorded by the Shariat Court for awarding life imprisonment in place of death were duly considered and it was found that the grounds were unsustainable and did not warrant conversion of death sentence to life imprisonment. All the matters, which are now being agitated by the learned counsel for the petitioner were duly considered. No error has been pointed out to necessitate rehearing of the matter. In the light of the foregoing observations, the petition has no merit and is accordingly dismissed. N.H.Q./181/SC (AJ&K) Petition dismissed.