P L D 2006 SC 365

ABDUL MALIK AND OTHERS

V/S

THE STATE AND OTHERS

Per Iftikhar Muhammad Chaudhry, J- Constitution of Pakistan (1973) Arts.13- It is clause (a) of this Article which is relevant for the issue in hand.  The genesis of this provision can be traced to the English Common Law rule “nemo debet bis vexari, which in literal sense means that a person may not be put twice in peril for the same offence. The principle by now has come to assume a universal application and is found in constitutions of most of countries. This almost universally accepted principle and as enshrined in Article 13(a) of our Constitution in its import and as evolved through the precedent case-law, has following implications:– (i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted. (ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted. (iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could on some previous indictment, have been convicted. (iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment the accused could have been found guilty. (v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died. (vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction. (vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial. (viii) The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time. When the conviction or acquittal of person is under challenge in appeal or revision the proceedings are neither fresh prosecution nor there is any question of second conviction or double jeopardy.  It is by now a well settled principle of law that an appeal or revision is continuation of trial and any alternation of sentence would not amount to double jeopardy. In Kalawati and another v. The State of Himachal Pradesh AIR 1953 SC 131, the Court was called upon to comment on a similar question when it ruled in para. 9 of page 10 that, “….an appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution”. To say that an appellate or revisional Court cannot enhance the sentence of a convict who during the pendency of the appeal or revision, as the case may be, has undergone the sentence under challenge is to negate the mandatory provisions relating to the powers of the appellate Court under sections 423 and 427 of Cr.P.C. and of the revisional Court under sections 435 and 439 of the same Code.  Under these provisions the concerned Court, seized of the appeal or revision, has the power to annul to reduce or to enhancethe The question of verdict is primarily a matter of judicial discretion to be exercised in the first instance by the Trial Court.  The Court of appeal can enhance the sentence if the same is found to be inadequate or not in accord with judicial principles laid down by superior Courts in this regard.  But as already held by this Court in Zarin v. The State 1976 SCMR 359 it “will depend on circumstances of that case and it would be undesirable to lay a principle of general application”. In R. v. Newsome & Browne (1970 (2) Q.B. 711), the U.K. Court of Appeal laid down four broad principle/guidelines in this regard where the Court could interfere and enhance the sentence.  Those are as under :– (i) Where the sentence was not justified by law. (ii) Where a persons was sentenced upon a wrong factual basis. (iii) Matters improperly taken into consideration or fresh matters to be taken into account. (iv) The sentence manifestly is excessive or wrong in principle. These are mere guidelines and their application would depend on each case.  The cases entailing capital charge are t be decided with utmost care.  When law vests a discretion in Courts to award sentence of death or life imprisonment, it casts a heavy duty to balance the various considerations which underlie these sentencing provisions.  The circumstances surrounding the offence, the question of mens rea, the principle of proportionality of sentence, of the gravity of the offence charged, the considerations of prevention or of deterrence and of rehabilitation may also be kept in view if the circumstances of the cases and the law applicable so warrant. There is no rule of general application that the serving out of sentence during the pendency appeal or revision, by itself, would constitute a bar for enhancement of sentence or that any exercise to that effect would be violative of Article 13 of the Constitution.  This could be one factor which the Court may consider, along with other factors and the principles referred to in para. 18 above, while deciding the question of enhancement. An analysis of the afore-cited precedent case law of this Court would show that mostly there were multiple factors which weighed with the Court in not enhancing the sentence and the circumstance that a convict has already undergone the sentence also weighed with the Court. Article 13 of the Constitution of Islamic Republic of Pakistan is not a bar for enhancement and final determination by the Appellant Court established under the law. [pp. 381,382, 383, 384, 387,393] A,B,C,DE,E,F,G & S