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Criminal, Review Petition No. 6 of 1974, decided on 22nd December 1976.

(On a review of the judgment .of this Court made on 8‑5‑1974 in Criminal Appeal No. 15 of 1970).

--Art. 188 read with Supreme Court Rules, 1956, O. XXVI, r. 1‑ Review‑Contentions raised by petitioner's counsel aiming at securing re‑examination of entire case on merits‑Such procedure not warranted in review‑Some justification, held, could be made out for review in case of any of contentions, of aspects or evidence, referred to at review stage having failed to be considered in judgment under review but full consideration paid in previous judgment to all questions raised in review, hence, no case made out for review. ‑[Review].

---Art. 188 read with Supreme Court Rules, 1956, O. XXVI, r. 1‑Review‑Doctrine of expectancy of life‑Principles evolved in precedent cases on doctrine of expectancy of life fully present to mind of Court when sentence of death restored and confirmed‑No justifica tion, held, made out to interfere with sentence of death by way of review.‑[Review].

Mst. Nuran v.' Nura P L.D 1975 S C 174 and Asadullah v. Mohammad Ali PLD1971 S C 541ref:

Ch. Fazle Haq, Advocate and Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 22nd December, 1976.

‑‑This petition seeks a review of our judgment dated the 8th of May 1974 by which an appeal filed by the State against the acquittal of the present petitioners was accepted, and the convictions and sentences recorded against them by the trial Court, including the sentence of death passed against petitioner Mohammad Hassan, were restored and confirmed.

As the facts are given at sufficient length in the judgment under review, it is not necessary to repeat them here. Suffice it to say that we accepted the prosecution version to the effect that the present petitioners were among the members of the unlawful assembly which caused the death of three sons of the first informant Mohammad Shah by finding at them from their respective weapons. We rejected the defence assertion that the petitioner Mohammad Hassan had acted in the exercise of the right of private defence. As regards the sentence we observed that the conduct of petitioner Mohammad Hassan in deliberately killing an unarmed person was a cruel and unprovoked act and he did not, therefore, deserve any leniency in the matter of punishment.

It is submitted by the learned counsel for the petitioners that in arriving at the conclusion that the ocular evidence was consistent with the medical evidence, and that the two together supported the prosecution case, the Court had overlooked the fact that the fire‑arm injuries found on the persons of the three deceased were on their chest and had charring around them, thus showing that at the tine of receiving these injuries the deceased persons were not running away from the spot but were rather advancing towards their assailants, with the necessary inference that they were the aggressors and wanted to attack their assailant who acted in self‑defence. The learned counsel submits that in the circumstances, the question of the accrual of the right of private defence to the petitioners has not received adequate attention in the judgment under review. He further contends that in any case the sentence of death was not called for in respect of petitioner Mohammad Hassan, as he had acquired an expectancy of life on his acquittal by the High Court. He submits that such expectancy has weighed with this Court in several reported cases, but the same principle has not been applied in the case of Mohammad Hassan.

After bearing the learned counsel for the petitioners, perusing the judgment under review as well as the other available material on the record, we are of the view that no justification is made out for a review of the order previously made by us against the petitioners.

It will be seen that the contentions raised by the learned counsel are' aimed at securing a re‑examination of the entire case on merits, a procedure not warranted in review. If any of the contentions now raised by the learned counsel, or the aspects of the evidence referred to by him, had not been previously noticed and considered, by us, some justification might have been) made out for a re‑examination of the case on those points, but such is not the case. We find that in the judgment under review full consideration, has been given to the question of the accrual of the right of private defence to the petitioners, especially in the light of the detailed statement made in this behalf by petitioner Mohammad Hassan under section 342 of the Cr. P. C. The nature of the injuries found on the bodies of the three deceased was also fully before the Court when it arrived at the conclusion that the defence version of the incident was ridiculous and fantastic. It was only after a consideration of the entire evidence, and all the possible factors favourable to the accused, that the Court came to the conclusion that the acquittal of the petitioners by the High Court was entirely unwarranted, and resulted in a grave miscarriage of justice. There is accordingly no scope for a re‑appraisal of the entire evidence on the grounds suggested by the learned counsel for the petitioners.

As regards the sentence, learned counsel's reliance on the doctrine of the expectancy of life proceeds in ignorance of the recent decision of the Court in Mst. Nuran v. Nura (PLD1975SC174) in which all the precedent cases having a bearing on this point were noticed, and it was observed that the view expressed in Asadullah v. Mohammad Ali (PLD1971SC541) represented a correct statement of the principles which ought to be applied in cases of, acquittal and enhancement of sentence. In that case it bad been stated that the doctrine of expectation of life held out to an accused person by a subordinate Court is primarily applicable in cases involving question of limitation. If the period prescribed for filing an appeal or petition for special leave to appeal against an order of acquittal has expired, the accused person acquires a right which cannot be taken away. A case in which the Court below had passed a patently erroneous order causing grave miscarriage of justice would not fall ipso facto within this doctrine, but if inordinate delay occurs in the disposal of an. appeal against order of acquittal the appellate Court may refrain from exacting the extreme penalty of death indeed sentence of death is the ordinary penalty for the offence of murder and the lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed the sentence to be awarded in an appeal against an order of acquittal will, therefore, depend on the facts of each case". These principles were fully present to the mind of the Court where the sentence of death passed by the trial Court against the petitioner Muhammad Hassan was restored and confirmed.

For the foregoing reasons, we see no justification to interfere by way of review. Accordingly, the petition fails and is hereby dismissed.

Petition dismissed.

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