2005 PLP 412 (SCMR)

(c) Under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Sentence to. undergo R.I. for five years plus to suffer five stripes.

6. The respondent being aggrieved of the order of his conviction filed an appeal before the Federal Shariat Court. The Appellate Court though dismissed his appeal but converted his death sentence into that of life imprisonment on the ground that he being of the age of 14/15 years, deserve a leniency in the quantum of sentence. However, rest of the sentences were maintained and it was directed that the sentences shall run concurrently.

7. The respondent did not opt to file a petition before this Court, however, the complainant has challenged the judgment and order of the Federal Shariat Court qua reduction of sentence.

8. The learned counsel for the petitioner has contended that the young age i.e. 14/15 years of the respondent by itself is not a ground for awarding a lesser sentence when the accused is found guilty for the brutal murder as in the instant case.

9. The grounds taken by the learned counsel for the petitioner deserve consideration and could have been dilated upon. However, the petitioner having an impediment in his way, in view of a notification issued by the Federal Government (The Government of Pakistan, Ministry. of Interior and Narcotics Control (Interior Division) dated 13‑12‑2001), whereby the President in exercising his prerogative under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, on the advice of the Chief Executive, has granted special remissions and death sentences of those condemned prisoners who were Juvenile as defined in' the Juvenile Justice System Ordinance, 2000, at the time of commission of offence and commuted their sentences to life imprisonment. The said notification is reproduced as under:‑‑ Subject: Grant of special remission under Article 45 of the Constitution to Juvenile condemned prisoners. I am directed to say that the President, in exercising his prerogative under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, on the advice of the Chief Executive, has been pleased to grant special remission in sentences as under:‑‑ (a) The death sentence of those condemned prisoners who were juveniles as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence stands commuted to life imprisonment provided that the death sentence has been awarded under Ta'zir and not Qisas or under other Hudood Laws. (2) The Provincial Governments shall ensure that the age as recorded by the trial Court entitles, the condemned prisoner to such commutation. (3) In case of any doubt about the age, medical opinion may be obtained and. decision taken by a committee comprising an expert. Home Secretary, I.‑G. Prison and the Superintendent of the Jail, where the condemned prisoners housed."

10. In the instant case, the trial Court has awarded death sentence to the respondent on 19‑11‑1998 and the Federal Shariat Court instead of confirming his death sentence, altered the sentence from death to life imprisonment on 31‑10‑2000. During the pendency of the instant petition, the aforesaid notification was issued, granting remissions/ commutation of sentences. Had his death sentence been confirmed by the Federal Shariat Court even then in the light of the above notification, his A death sentence could have been commuted to that of life imprisonment and now the prayer for enhancement of sentence cannot justifiably be entertained. In this respect reliance can be placed on (i) Kausar Ali and 3 others v. Muhammad Sabir and 6 others 1990 SCMR 1132, wherein it was held:‑‑ "

5. As regards the complainant's petition (Cr.P.21/R of 1988), we find that even those who were sentenced to death have as a result of general amnesty benefited and they are now required to undergo life imprisonment. In this' background, for such an occurrence which had taken place in 1982, it would look incongruous to consider the re‑imposition of death sentence on those not so dealt with." (ii) Market Committee v. Town Committee 1992 SCMR 1403, the relevant portion whereof is reproduced:‑‑ . "(6) As regards the petition against acquittal and for enhancement of sentence filed by Abdul Jabbar the father of the deceased (Cr.P.L.A. 89 of 1990), we find that the two sentenced to death have benefited from a reprieve and if death sentence had been awarded to the others as is sought by the petitioner Abdul Jabbar, the others would have benefited from the same amnesty order. In the circumstances, we do not consider that the prayer for enhancement of sentence of others can be justifiably entertained. Hence, leave to appeal is refused in Cr P. No.89 of 1990 to, this extent. As regards the acquittal of Khalid, as the entire matter is coming up for re‑examination, let this petition be heard alone with the appeals of the convicts after notice to Khalid. " (iii) Ghulam Murtaza v. Muhammad Arif alias Bahari and another 1993 SCMR 693, wherein it was observed:‑‑ "(3) The occurrence took place on 6‑12‑1981 and the judgment of the trial Court finding the respondent guilty of the offence under section 302 was announced on 5‑12‑1984. The High Court recorded the impugned judgment on 26‑9‑1987. In December, 1988 the President issued a General Amnesty Order. Had the High Court confirmed the sentence of death passed on the respondent; he would have been entitled to the benefit granted by the General Amnesty Order. In the circumstances; it will not be appropriate for us to interfere at this stage with the sentence passed by the High Court. The appeal is dismissed." (iv) Fateh Shah and 2 others v. The State 1995 SCMR 1316, wherein it was held:‑‑ "There was yet another impediment in the way of the High Court to convert the life imprisonment into death sentence, inasmuch as, the life imprisonment was awarded on 5‑2‑1985 before the order of amnesty on 7‑12‑1988 by the President whereby all the death sentences already recorded stood commuted. The question whether the High Court could enhance the lesser penalty awarded by the trial Court came up for consideration before this Court in the cited judgment and other cases and it was held that all cases punishable with death in which conviction orders were passed prior to 7‑12‑1988, the sentence of death if awarded by the trial Court stood commuted and if sentence of life imprisonment was passed, the same could not be enhanced to death by the Appellate Court viz. the High Court and the Supreme Court as it would result in discrimination which is to be avoided. In this view of the matter, the High Court was not legally justified to enhance the sentence of life imprisonment imposed upon, the appellants on 5‑2‑1985 to death." (v) Nazir Ahmad Khan v. Member (Colonies), Board of Revenue, Punjab, Lahore 1991 SCMR 1726 and (vi) Zahir Shah v. Muhammad Anwar and another 1991 SCMR 1696.

11. For the foregoing reasons, leave to appeal is declined and the petition is dismissed. M.B.A./H‑23/S Petition dismissed.