This page looks at the type of arguments that you can raise on appeal both in respect of mitigating factors to argue for a lesser sentence for your client, as well as challenging the underlying trial judgement.

1. Mitigating Factors on Appeal

In general, the mitigating factors covered under ‘Defence-led Investigation’ will also be applicable to your client on appeal. If a thorough mitigation investigation was not done in your client’s trial you should do one prior to your client’s appeal.

In addition to the factors outlined in Defence-Led Investigation and Trial Stage, there are also certain pieces of mitigating evidence that only become applicable in an appeal of a death sentence that are explained in this section. On appeal, mitigating factors gain paramount significance as the Supreme Court has held that “even an iota towards mitigation is sufficient to justify [a] lesser sentence”. 1 Similar to with the trial, this information can only be elucidated by a defence-led investigation which will ultimately save your client’s life.

1.1 Conduct in Prison

Your client’s good conduct in prison and positive relations with prison staff and fellow inmates may be introduced as an important mitigating factor on appeal indicating your client’s capacity for reform. Your client may have started or continued his education while in prison2 and may have learned useful skills, such as tailoring, carpentry, cooking or gardening. Religious activities are also common within prisons in Pakistan and prisoners often learn the Quran. Such activities may demonstrate that an offender has rehabilitated and should no longer present a danger to society.

The Supreme Court of Pakistan considers capacity for reform as mitigation, rendering a death sentence disproportionate.3 For example, in Tariq Mehmood v. the State, the Supreme Court recognized the fact that the offender had no previous criminal record as mitigation and commuted his death sentence to life imprisonment.4

There may be various ways to investigate and introduce evidence of your client’s good conduct in prison:

Examining your client’s history ticket

A history ticket is maintained by the Prison Superintendent and records a prisoner’s conduct, employment, health and prison offences (if any) throughout the period of their imprisonment.5 As a capital defence lawyer, at trial, you must remain cautious of relying on your client’s history ticket alone to make this argument. This is because any negative comments or prison offences recorded in your client’s history ticket may damage the defence case. Therefore, while examining the history ticket may be the first step, you must conduct further investigation, as discussed below, to supplement your argument. Additionally, on appeal, it is important for a lawyer to note that if the client has been handed a death sentence at trial, his history ticket may not provide sufficient details indicating good conduct. This is because death row prisoners are not eligible for remission6 – special or ordinary – and so, the history ticket may merely contain basic remarks of punishments (if any), health records, etc.

Interviewing your client’s cellmates and/or prison staff

As a capital defence lawyer, it is your duty to build a defence case which portrays your client in the best light. One way of doing so is to provide written testimonials by your client’s fellow inmates with whom they may have a good relationship. Oftentimes, on continuously meeting with your client, you will meet prison staff who may be convinced to speak towards your client’s good conduct in prison. Additionally, you may also conduct interviews of the prison doctor or other social workers who may continually visit the prison and may endorse your client’s good conduct warranting a sentence less than death at trial or a commutation at appeal.7

Obtaining a court order to examine prison records

Having presented initial evidence of your client’s good conduct, you may also be able to compel the court to order prison authorities to produce the prison records in relation to your client’s behavior in prison, any education obtained in prison and health records, etc. The Supreme Court of India commuted a defendant’s sentence from death to imprisonment for life where the prison records revealed that he had obtained a degree in prison and also wrote poetry.8 This jurisprudence indicates that a positive prison record may be a vital contribution towards showing the defendant’s reformation and therefore, can save your client’s life. However, before calling for your client’s prison records at trial and appeal, you must frequently visit your client in prison to evaluate his life behind bars and determine whether or not his prison records could prove to be beneficial to his case. Subsequent to your investigation, if your client’s life in prison indicates reformation, you may call for your client’s prison records to be produced at trial and/or appeal.

1.2 Time on death row

The Supreme Court may commute the death sentences of prisoners who have spent an extremely long period of time on death row to life imprisonment. The Supreme Court has established the principle that prisoners who spent a period on death row that is equal to or greater than a term of life imprisonment are reasonably entitled to ‘an expectation of life’.9 Spending an extremely long period of time on death row may not be seen, in and of itself, as persuasive enough a mitigating factor to convince the court to commute your client’s death sentence.10 However, its status as a mitigating factor is undisputed and its persuasive value may be strengthened by combining it with other mitigating factors.

Circumstances that aid mitigation

  • The accused spent a period on death row that is equal to or more than a term of life imprisonment
  • The accused spent this long period of time on death row because of executive and judicial delays
  • The accused went through severe psychological stress because of prolonged incarceration

Relevant cases

Ghulam Mohy-Ud-Din and others v State and Muhammad Sadiq v Liaquat Ali and others (2014 SCMR 1034)
Death sentence and life imprisonment are alternative sentences. If an accused has served equal to or greater than the period of a life sentence, their death sentence should be commuted to life, to then receive the death penalty would be to receive two sentences for one crime.

The Trial Court convicted the four accused on two counts of murder under Section 302(b) of the PPC and sentenced them to death. The accused persons had attacked two men at their shop, armed with various weapons. The fatal injuries from the attack led to the death of the two men. The Lahore High Court upheld the conviction and sentence of two of the accused. One was acquitted, and the other had his sentence commuted to 14 years imprisonment. The three accused appealed their sentences and the complainant cross-appealed the decision of the High Court to reinstate the trial judge’s decision.

On appeal, the Supreme Court found that motive was unproven and in any event was too feeble to constitute the death penalty for the two accused. The motive was alleged to be a dispute and litigation between the parties over a wooden stall. However, no evidence was adduced to corroborate this claim at trial.

The two appellants on death row had spent over 16 years in the death cells of the prison in terrible conditions. The apex Court referred to the principle that a convict who “undergoes a period of custody equal to or more than a term of imprisonment for life during pendency of his legal remedy…then keeping in view the principle of expectancy of life, it would be appropriate to reduce his sentence from death to life imprisonment.11 Furthermore, it stated that Section 302(b) of the PPC provides two alternative sentences; death sentence and imprisonment for life. Thus, “to impose death or to maintain it, after the convict had undergone imprisonment for life or equal to it, would defeat the clear intent of the Legislature.”12 The Supreme Court commuted the pair’s sentence to life imprisonment. The third accused did not press his appeal and so his claim was dismissed.

In relation to the complainant’s cross appeal, the Supreme Court held there was no legitimate reason to enhance the third accused’s sentence as the High Court had “given very sound, cogent and plausible reasons…distinguishing his role attributed to him in the crime”.13 The acquittal was also safe, as the accused had not carried out fatal injuries to the deceased. He “was not liable to be sent back to prison after a period of 18 years has passed, as such a course would defeat the ends of justice”.14

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.

2. Challenging the trial court judgment

In addition to all of the jurisprudence outlined in the Trial Stage page of this website that can be raised on appeal if not correctly applied by the lower courts at the trial stage, this section outlines an argument that can be made uniquely on appeal in cases where your client has co-accused who have been acquitted or given a lesser sentence.

2.1 Co-accused given lesser sentence

As lower courts may be operating under external pressures to convict and impose a death sentence, it is not uncommon for an accused to receive a sentence of death while one or more of their co-accused are acquitted or awarded a lesser sentence on the basis of the same evidence.

The Supreme Court has made clear that an accused must not receive the stricter sentence of death on the same set of evidence which was deemed untrustworthy in a co-accused’s case. Furthermore, an accused cannot be sentenced to death where he played a lesser role in the crime than the co-accused who were acquitted.

Therefore, as a capital defence lawyer, you must check if the eyewitness testimony that was considered unreliable to impose the death penalty on one co-accused was sufficient to impose the death sentence on another co-accused in the same case. Where independent evidence is available, you must check if it corroborated the eye-witness testimonies. You must also consider how much time has lapsed between the finding of corroborative evidence (such as weapons) and the commission of the alleged crime, and any delay in lodging of FIRs. You must be mindful that FIRs should not be considered compelling pieces of evidence on their own without being backed up by a complainant’s statement before the court or by other forms of testimony.

Relevant cases

Iftikhar Hussain v. State (2004 SCMR 1185)
Where witness evidence is unreliable in regard to the involvement of one of the co-accused then, ordinarily, they cannot be relied upon against the other co-accused unless their testimony is sufficiently corroborated through strong corroboratory evidence coming from an unimpeachable and independent source.

The accused and eight co-accused were all tried for a revenge killing and acquitted at the trial court. The State appealed against the acquittals of the nine accused. The Lahore High Court convicted the accused under Section 302(b) of the PPC and sentenced him to life imprisonment, maintained the acquittals of the other seven co-accused, while one co-accused passed away during imprisonment.

The case against the accused relied on testimony by two eye-witnesses, who had implicated nine accused in the case. The Supreme Court stated clearly that “the statements of these witnesses could only be accepted to convict the appellant if corroborative evidence is available on record because both of them have not been found truthful against seven accused persons out of the nine.” The Court found no corroboration. The FIR had been intentionally delayed and was lodged after preliminary inquiries and consultation had taken place, and therefore it lost its evidentiary value. The Court said that where the FIR is delayed, the obvious presumption which follows is that the witnesses were not present at the place of occurrence, the accused were not identifiable and after due deliberation a story was cooked up fitting each accused in the occurrence”. The Court also found that the recovery of the crime weapon from the accused was highly doubtful; it was unlikely that the accused would keep a murder weapon on him for 3 days. Further the unexplained considerable delay in sending the empties and weapon for testing deprived the weapon of its corroborative value. As the eye-witness account was disbelieved in the case of the seven co-accused who were acquitted, the Supreme Court held that the same could not be relied upon to convict the accused in the absence of any additional corroborating evidence. The Supreme Court allowed the appeal and the conviction and sentence of the accused was set aside.

Irfan Ali v. State (2015 SCMR 840)
An accused cannot receive a death sentence when a co-accused with a more serious role in the incident was acquitted.

The accused was convicted under Section 302(b) of the PPC and sentenced to death for murder of the deceased at trial while four of the co-accused were acquitted of murder charges and one other was sentenced to life imprisonment. The Lahore High Court confirmed the conviction and sentence of the accused appellant, but overturned the conviction and life sentence of the co-accused by extending him the benefit of doubt.

The deceased was allegedly murdered because he threw a woman out of his house and ruthlessly beat her. It was alleged that the co-accused initiated the aggression and fired four shots at the deceased, causing him injuries and to fall to the ground. The accused then stabbed the deceased when he was lying on the ground. The Supreme Court found that the award of the death sentence to the accused in such circumstances, when the co-accused who had a more serious and graver role in the incident was acquitted, was neither understandable nor warranted in law. The Court also found that that the evidence of witnesses, which had not been believed with regard to the acquitted co-accused, was relied upon for convicting the accused. Further, there was not a single iota of corroboratory evidence to substantiate the evidence against the accused. The initial statement given to the police referred only the gunshots, but when the post-mortem revealed the deceased had also been stabbed, the evidence was changed. In addition, the FIR was lodged after more than 3 hours and after 1-1/2 hours had been spent at the scene with the body of the deceased. This established that the crime was not witnessed. A recovered dagger was found to have blood planted on it because when it was recovered the report did indicate the presence of any blood. Further, none of the crime empties recovered from the scene matched the weapon allegedly recovered from the accused. The Court allowed the accused’s appeal and set aside the conviction and sentence against him.

Sadar Bibi and another v Munir Ahmed and Others (2017 SCMR 344)
If the “eye-witnesses produced by the prosecution are disbelieved to the extent of some accused person attributed effective role, then the said eye-witnesses cannot be relied upon for the purpose of convicting another accused person attributed a similar role, without availability of independent corroboration.”

The two accused and their co-accused were convicted under Section 302(b) of the PPC and sentenced to death for a revenge killing of two deceased persons. The High Court upheld the conviction and death sentence of the two accused, but dismissed the convictions of the remaining co-accused.

The prosecution offered witness testimony that Accused 1 and Co-accused 1 both shot at the chest of Deceased 1, causing his death. Yet Co-accused 1 was acquitted, and the acquittal was not challenged by the complainant or state, while Accused 1 was sentenced to death. Similarly, Accused 2 and Co-accused 2 were alleged to have jointly beheaded Deceased 2, but Co-accused 2 was acquitted without challenge while Accused 2 was sentenced to death. The Supreme Court repeated the settled law that “if the eye-witnesses produced by the prosecution are disbelieved to the extent of some accused person attributed effective role, then the said eye-witnesses cannot be relied upon for the purpose of convicting another accused person attributed a similar role, without availability of independent corroboration to the extent of such other person.”

In this case, the Court found no such corroboration. There was also delay in lodging the FIR and conducting the post-mortem, which inferred that there had been some deliberation and consultation between the complainant and the police. The Court also found that the Defence was unable to cross-examine the investigating officer through whom all the facts and circumstances favouring the accused and co-accused persons could have been brought on the record. In the absence of any independent corroboration, the accused and co-accused persons were acquitted of the charge by extending them benefit of doubt and the appeal was disposed of accordingly.

Useful Tips on Appeal:

  • Where your client has co-accused:
    • Check whether any co-accused in your client’s case have received lesser sentences.
    • Check whether any witnesses the prosecution is using in your client’s case, have been disbelieved in any of his/her co-accused’s cases.
  • Check how much time your client has been imprisoned. A lengthy period of detention can be mitigating, and where it is equivalent or greater than the length of a life sentence, should trigger the life expectancy doctrine, preventing your client from receiving a death sentence/having a death sentence upheld.
  • If your client is convicted of a compoundable offence, it is worth checking if the victim or victim’s family would be open to a compromise, especially where significant time has passed.
  • Investigate your client’s conduct while a prisoner and gather evidence to show their conduct should be considered mitigating including any evidence of: academic study, religious practise, creativity, good behaviour, etc.