30 July 2020 :

The Supreme Court has overturned death sentence of two brothers – Sikandar Hayat and Jamshed Ali – who have spent 27 years of their lives in jail on account of “the right of expectancy of life”.
By majority of 2-1, a three-judge bench accepted a review petition filed by the death row prisoners 16 years after rejection of their appeal by an apex court bench in a murder case.
The bench, headed by Justice Maqbool Baqar and comprising by Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmed, converted their death sentences into life imprisonment.
As the brothers have been in prison since 1993, they will be released forthwith. Usually, prisoners sentenced to life imprisonment are set free after 15-year-imprisonment.
In this case, the apex court adjudicated a number of key questions.
Firstly, it deliberated whether a review petition filed after a delay of 5844 days is maintainable or not, and if the delay in filing the same can and should be condoned.
Secondly, it deliberated whether the insufficiency and weaknesses in prosecution's evidence during the trial, as asserted by the counsel for the petitioners, could be considered in the instant review petition.
Thirdly, it reviewed whether the evidence produced by the petitioners to prove their date of births was sufficient and if so, was the same correctly appreciated by the lower courts.
Finally, it considered whether there was any legal principle that might benefit the petitioners, at this belated stage, to seek a lesser punishment than that of death awarded by the competent court, and confirmed by the Supreme Court in 2002.
Authoring the majority judgment, Justice Afridi held that the petitioners have the right of expectancy of life as they are incarcerated for more than 25 years, while their legal challenge before the competent legal judicial forums continued.
He noted that for the same set of evidence, two co-accused had been acquitted without any distinguishing feature in their role compared to that of the petitioners and that too, without corroboration of independent evidence.
“Finally that the crime was a sudden and unpremeditated act, and thus warrants revisiting the sentence of death confirmed by this court in its judgment under review," the judgment said.
It noted that the right of expectancy of life is a right of a convict sentenced to death, who while consciously pursuing his judicial remedies provided under the law has remained incarcerated for a period equal or more than that prescribed for life sentence.
It said courts have considered this delay in the final judicial determination of a convict's fate to be one of the mitigating circumstances for the commuting sentence of death to life imprisonment. “This positive application of discretion by the appropriate court is regarded as the rule of expectancy of life,” it said.
Justice Afridi noted that in the present case, the petitioners are also seeking review of the quantum of the death sentence maintained by this court in its judgment under review.
The court noted that the right of expectancy of life had genuinely accrued to the petitioners having admittedly being incarcerated in the death cell for a period more than twenty-five years, while they were seeking justice from the appropriate judicial courts of our country.
"All these factors, which are apparent on the face of the record, when taken in a cumulative manner, cannot go unheeded, more so when the petitioners are facing capital punishment. These mitigating circumstances make out a case for review of the judgment of this court dated 13 June 2002," it said.
As far as the juvenility of the petitioners is concerned, the court noted that petitioners were granted more than adequate opportunity to discharge the onus that they were less than eighteen years on the date when the crime was committed in 1993.
The court noted that the evidence they produced did not convince the trial court as well as the appellate court to be sufficient, and that too for good reasons.
"All factual and legal issues were correctly appreciated by the two courts below, warranting no interference by this court. However, this would never demean the proceedings initiated by the petitioners to claim their juvenility on the basis of their statutory rights.”
In case the claim of the petitioners to juvenility had been out rightly false, their said claim would not have taken three rounds to the trial court based on two remand orders by the high court.
“In fact, the crucial ossification test to determine the age of the petitioners could not be carried out but for their advanced age.”
However, on general medical examination of the petitioners, the opinion of Dr Khalid Javed took the petitioners to be in their early youth, if not being juvenile at the time of the commission of the offence.
Without conducting the ossification test, the possibility of determining the actual age of the petitioners at the time of the crime would remain undetermined.
"In such circumstances, despite the rejection of petitioners’ said claim to their juvenility, the same could not be out rightly declared as totally fraudulent aimed to delay and abuse the due process of the law.
“Therefore, our criminal justice system cannot be totally absolved of the delay of seventeen years in deciding the claim of the petitioners. Surely, no party should suffer for the act of court," it said. Regarding 16-year-old time barred review petition, the court held that there is judicial consensus to condone the delay in entertaining petitions filed by condemned prisoners, especially, when they face the capital sentence or a long imprisonment sentence or for being in jail and having no access to legal assistance or safe administration of justice for the reappraisal of evidence.
"In the circumstances of the present case, the petitioners who are through the instant petition, seeking after 16 years, the review of the judgment passed by this court in the year 2002, cannot be out-rightly denied a hearing without considering the merits of the case, and more so, when the petitioners are facing capital punishment.
“In these circumstances, the delay in filing the present criminal suo motu review petition is condoned."
Justice Qazi Amin in his dissenting note observed that penalty of death is forfeiture of natural span of life of an offender; the wage became due after dismissal of petitioners’ appeal in this court as well as mercy petition with the President of Pakistan way back on 15 December 2006.
“A frivolous, motivated and oblique pursuit to defeat the ends of justice cannot be equated with bona fide recourse to law nor the time manipulated thereby validly pressed into service to claim a concession,” he noted.


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