MUHAMMAD MURAD vs STATE, etc.

ORDER

' Ijaz Ahmed Chaudhry, J.-This petition has been directed against the judgment dated 7.5.2014 passed by the Lahore High Court, Bahawalpur Bench whereby the Writ Petition No, 3280-BWP/2014 filed by the petitioner was dismissed.

2. Brief facts of the case are that the petitioner along with four others was tried in a case registered vide FIR No, 163/1997 under Sections 302/109/34, PPC at Police Station Qaimpur for having caused intentional murder of Liaquat All and injuries to Mat. Jindan, Tahir and Nawaz. The learned trial Court vide its judgment dated 23.12.2004 while acquitting the rest, convicted the petitioner under Section 302(b), PPC and sentenced him to death. He was also directed to pay a fine of Rs, 100,000/-, in default whereof to undergo SI for one year. Against the said judgment, the petitioner filed Criminal Appeal No, 373/2004 while the complainant filed Criminal Appeal No, 105/2005 against the acquittal of the co-accused before the learned Lahore High Court, Lahore. The learned High Court vide its judgment dated 8.4.2009 dismissed both the appeals and maintained the death sentence awarded to the petitioner. Against the said judgment, petitioner filed Criminal Petition No, 280/2009 and Jail Petition No, 235/2009 and the complainant filed Criminal Petition No, 416-L/2009 before this Court. This Court vide judgment dated 3.7.2009 dismissed the Criminal Petitions filed by the petitioner and the complainant. However, the Jail Petition was dismissed as withdrawn. The petitioner did not file any review petition against the said judgment, which has attained finality.

However, the petitioner has not been executed so far and is behind the bars since 18.8.1997 and as such has already undergone 17 years imprisonment in jail. Petitioner filed Writ Petition No, 3280 BWP/2014 before the Lahore High Court, Bahawalpur Bench for the conversion of his death sentence into life imprisonment relying on the judgment of this Court reported as Dilawar Hussain vs. The State (2013 SCMR 1682), which stands dismissed vide impugned judgment. Hence this petition.

3. Learned counsel for the petitioner contends that the learned High Court has dismissed the Writ Petition on the ground that the matter is no more pending and the petitioner's case is a past and closed transaction. Learned counsel relied on Hassan and others vs. The State (PLD 2013 SC 793) to contend that the death sentence of the appellants awarded by the two Courts below was converted into life imprisonment by this Court on the ground that they have 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. Learned counsel also relied on the case of Dilawar Hussain supra wherein the death sentence of the petitioner was converted into life imprisonment on the ground that he had served more than 18 years in jail. Learned counsel further contended that a three Member Bench of this Court has passed another judgment in Criminal Appeal No, 713/2006 in which the death sentence of the appellant was converted into imprisonment for life as the appellant was already in jail for the last more than 16 years.

4. We have heard learned counsel for the petitioner and have gone through the judgments relied upon by the petitioner's learned counsel as also the judgment reported at Abdul Malik L78. State (PLD 2006 SC 365).

5. In Dilawar Hussain supra the convict was in jail for more than 18 years and his death sentence was not executed. However, this Court has not taken it as a sole ground and has also taken into consideration other factors i.e, that the incident took place at the spur of the moment; petitioner and deceased being closely related to each other, incident took place on some abrupt altercation between them and that the petitioner fired only a single shot at the lower part of the body of the deceased for threatening him but unluckily he could not survive. However, in Hassan and others supra a three Member Bench of this Court came to a conclusion that if the convict sentenced to death had undergone 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, the death sentence be converted to imprisonment for life as two sentences have been provided under Section 302(b), PPC and one of such sentences i.e, imprisonment for life has already undergone by the convict and the execution of the death sentence in that case will be hit by the principle of double jeopardy. On the contrary, we have noticed that a five Member Bench of this Court in Abdul Malik vs. State (PLD 2006 SC 365) had already taken into consideration this aspect and had held that Enhancement of a sentence of a convict who has already undergone a sentence of life imprisonment during the pendency of appeal / revision would not be 'hit by the principle of double jeopardy enshrined in Article 13 of the Constitution.

5. In the above circumstances, leave to appeal is granted in this case inter alia to consider the following:--

(i) whether the judgments relied upon by the learned counsel for the petitioner can be applied in the instant case as admittedly in those cases the appeals/review were pending before this Court but in the instant case the petitioner has already lost all the remedies; and

(ii) whether the judgment of three Members Bench reported at Hassan and others vs. The State (PLD 2013 SC 793) can be sustained when the earlier judgment of a five Members Bench reported at Abdul Malik vs. State (PLD 2006 SC 365) was already in field?

6. As important questions of law are involved, office is directed to place the matter before the Hon'ble Chief Justice for constitution of a larger Bench. All other pending cases raising similar issues be also heard along with this appeal.