Dilawar Hussain v. State (2013 SCMR 1582)

Any mitigation is sufficient to justify a lesser sentence. Deliberately inflicting an injury on a lower part of the body, and not inflicting repeat injuries, constitutes sufficient mitigation. Additionally, where the accused has already served a long period in imprisonment the ‘expectancy of life’ arises.

The accused was convicted under Section 302(b) of the PPC and sentenced to death for murder. The accused had fatally injured the deceased, who was a close relative, by shooting him in the thigh, after the deceased had refused to return land that had been sold to him by the accused’s father. The Lahore High Court and the Supreme Court maintained the sentence and conviction.

The Supreme Court acknowledged that it is very rare to consider mitigation in a review hearing, but considered it appropriate here as they were considering the quantum of sentence and mitigating factors were relevant in determining whether there had been a legal error. The apex Court held that the fact that the accused had deliberately aimed for a lower part of the body, and had fired only once, was a strong mitigating factor suggesting that the intention was not to kill. This was deemed sufficient mitigation to commute the sentence to life imprisonment.

The Court stated that, in line with their ‘principle of abundant caution’, that “no quantum of mitigation is required for awarding imprisonment for life,even an iota towards mitigation is sufficient to justify [a] lesser sentence.1 Additionally, the Court took into account that, at the time of review, the accused had already spent 18 years on death row, which was a considerable strain on him and satisfied one of the life sentences handed down upon him under Section 302(b). Therefore, it was found that the accused had an ‘expectancy of life’. The Court further considered it relevant that the accused had likely been influenced by his brothers, who had received lesser sentences for their part. Thus, the Supreme Court commuted the death sentence to life imprisonment.