P L D 2006 SC 365
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
This almost universally accepted principle and as enshrined in Article 13(a) of our Constitution
(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
(iv) The evidence necessary to support the second indictment or the facts which constituted
(v) The offence charged in the second indictment must have been committed at the time of
(vi) The earlier adjudication leading to guilt or innocence of a person charged must have
(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of
(viii) The proceedings in which the plea of double jeopardy is being raised must be fresh
When the conviction or acquittal of person is under challenge in appeal or revision the
To say that an appellate or revisional Court cannot enhance the sentence of a convict
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