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Murder Reference
The Death Penalty Debate
Capital Punishment/Death penalty has long been a controversial issue in Pakistan.
The fight between those who support capital punishment and those who oppose it is
still on.
Those who are against it, are of the view that, the death penalty is inhumane, ultimate
cruel, degrading punishment and against the human rights guaranteed under
Universal Declaration of Human Rights 1948. The critics argue that when it is used for
lesser crimes, capital punishment is immoral because it is wholly disproportionate to
the harm done. Similarly, the state by executing a death sentence is doing the same
thing i.e. Killing. Also, how will it work in a country where justice most of the time
sides with people who are rich and in power? And who’s to know how many innocent
or undeserving people have been executed over the decades?
Those who are in favour of death penalty, are of the view that, those who commit
murder, because they have taken the life of another, have forfeited their own right to
life. Supporters of death penalty also claim that it has a uniquely potent deterrent
effect for whom the threat of imprisonment is not a sufficient restraint.
Sentence of Death to be Submitted by Court of Sessions – Section 374 Cr. PC
When the Court of Sessions passes sentence of death, the proceedings shall be
submitted to the High Court and the sentence shall not be executed unless it is
confirmed by the High Court.
Section 374 Cr. PC provides that in case the Court of Session passes sentence of death,
the Court is legally bound to submit the proceedings to the High Court for
confirmation and the sentence shall not be executable unless it is confirmed by the
High Court.
Power to Direct further inquiry to be made or additional evidence be taken –
Section 375 Cr. PC
If when such proceedings are submitted, the High Court thinks that a further inquiry
should be made into, or additional evidence taken upon any point bearing upon the
guilt or innocence of the convicted person, it may make such inquiry to take such
evidence itself, or direct it to be made or taken by the Court of Sessions. (Section 375
(1) Cr. PC)
Unless the High Court otherwise directs, the presence of the convicted person maybe
dispensed with when such inquiry is made or such evidence is taken. (Section 375 (2)
Cr. PC)
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When an inquiry and the evidence are not made and taken by the High Court, the
result of such inquiry and the evidence shall be certified to such Court. (Section 375
(3) Cr. PC)
Power of High Court to Confirm sentences or annul conviction – Section 376 Cr.
PC
In any case submitted under Section 376, the High Court:
a) May confirm the sentence, or pass any other sentence warranted by law. Or
b) May annul the conviction and convict the accused of any offence of which the
Session Court might have convicted him or order a new trial on the same or an
amended charge; or
c) May acquit the accused person;
Confirmation of Sentence
The High Court should scrutinize the evidence and see whether the verdict is
perverse, whether the evidence has been improperly excluded or improperly
admitted. The High Court has to fully satisfy itself, without an iota of doubt, that a
convict has been rightly sentenced to death and it is only then they will confirm the
sentence awarded by the court of Sessions.
May annul the conviction
The High Court will annul the conviction, if the evidence is not enough to sustain
conviction or there is real doubt as to the identification of the accused or the sole
evidence is uncorroborated or where a suspicion arises with regards to the accused
committing the crime, or any other doubt, which will compel the High Court to reach
to a stage, that death sentence is not the right choice of punishment for the accused in
circumstances of the case, sent to them by Court of Sessions.
New Trial
Where the evidence is incomplete and further evidence is felt necessary for giving
judgment, a new trial may be ordered. Retrial is indicated only when the accused has
been deprived of the substance of a fair trial. Also, where the Court finds it difficult to
take upon itself the responsibility if deciding on the guilt or innocence of the accused,
a retrial should be granted.
Acquittal
High Court under Section 376 Cr. PC is also empowered to acquit the convict of the
charge if they believe that the Prosecution was unable to prove a charge against the
accused beyond reasonable doubt, there was insufficient evidence of guilt, there was
grave contradiction between the witnesses who deposed against the accused person
in trial before Sessions Court, if a compromise has been reached between the
aggrieved parties and High Court thinks offences can be compounded.
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Confirmation of sentence to be signed by two judges – Section 377 Cr. PC
In every case so submitted, the confirmation of the sentence, or any new sentence or
order passed by the High Court, shall when such Court consists of two or more judges
be made, passed and signed by at least two of them.
Procedure in case of difference of opinion – Section 378 Cr. PC
When any such case is heard before a bench of judges and such judges are equally
divided, in opinion, the case with their opinions thereon, shall be laid before another
judge, and such judge, after such hearing as he thinks fit, shall deliver his opinion and
the judgment or order shall follow such opinion.
Scope
The Judge to whom the is referred for a decision would independently assess the
evidence and would form his own opinion about it. Case is not to be referred back to
the Division Bench which had heard it and the decision would not be that of majority,
rather it would be the opinion of referee judge which would have decisive effect and
would be of binding nature and the judgment or order will follow such opinion. (1996
PCrLJ 394)
Procedure
Following is the procedure to be followed in a murder reference, on account of
difference of opinion:
a. The whole case goes to the referee judge with reference to the particular appellant.
b. The opinion of the referee judge is binding on the Division Bench.
c. His opinion need not be in agreement or at variance with one of the judges.
d. The opinion of the referee judge should be based on independent assessment of
the case including the question of sentence.
e. The referee judge has to send his opinion to the Bench and the Judgment would be
based on such opinion.
Procedure after order has been made on Murder Reference by High Court – Section
379 Cr. PC
In cases submitted by the Court of Sessions to the High Court for the confirmation of
sentence of death, the proper officer of the High Court shall without delay, after the
order of confirmation or other order has been made by the High Court, send the copy
of the order under the seal of the High Court and attested with his official signature,
to the Court of Sessions.
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Execution of Order passed under Section 376
Section 381 Cr. PC governs the execution of order passed under section 376 Cr. PC,
which states, when a sentence of death passed by a court of Sessions is submitted to
the High Court for confirmation, such Court of Session shall, on receiving the order
of confirmation or other order of the High Court thereon, cause such order to be
carried into effect by issuing a warrant or taking such other steps as may be necessary.
The sentence of death shall not be executed if the heirs of the deceased pardon the
convict or enter into a compromise with him even at the last moment before execution
of the sentence. (Section 381 Cr. PC)
Postponement of Capital Sentence on pregnant woman – Section 382 Cr. PC
If a woman sentenced to death is found to be pregnant, the High Court, shall order
the execution of the sentence to be postponed, and may, if it thinks fit, commute the
sentence to imprisonment for life.
Case Law on Murder References
• 2021 MLD 461 Peshawar
“S. 302, 392 & 411 - Prosecution case was that the accused tried to snatch laptop, mobile
and motorcycle, which was resisted by nephew of complainant, due to which the accused fired at
him, as a result of which victim sustained injuries and died---Record showed that the deceased, then
injured, when reached the hospital was unconscious and the scribe submitted application to the
doctor for his opinion regarding deceased's capability to talk, which was endorsed by the doctor's
noting that the injured was unconscious---Deceased then injured was referred to another hospital
but he lost the battle of his life on the next day i.e. on 5-2-2014---Dead-body was brought back to
the village after the post-mortem examination---Seat of injuries supported the stance of the
complainant as the deceased had received the fire arm injuries from his front and so the medical was
in harmony with the ocular account---Circumstances established that the prosecution had
successfully proved the case against the accused---Appeal against conviction was dismissed
and murder reference was answered in the positive”
• 2019 PCrLJ 1743 Lahore
“S. 302--- Prosecution case against accused persons was that they killed the deceased
persons by firing---Complainant in his oral statement had stated that he along with others boarded
a bus proceeding to place 'S', however, while appearing before Trial Court he and other witness
stated that they were going to see the deceased---Said statement was in direct contrast to the
sequence mentioned in the FIR---Both witnesses of the occurrence were chance witnesses---
Complainant and the eye-witness stated that one of the deceased was fired at inside the bus and the
deceased after receiving the fire shot fell on the seat---Contrary to the above, complainant and
investigating officer stated that police took into possession blood-stained earth underneath the dead
body of the deceased---Investigating officer stated that he did not collect the blood of the deceased
from inside the bus---Neither the driver nor the conductor of the said bus was examined during the
investigation---No one other than the related witnesses, who were riding the bus at the relevant
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time, were examined during investigation or trial of the case---Complainant admitted during cross-
examination that the clothes of witnesses were stained with blood, however, said clothes were not
taken into possession by the investigating officer---Appeal was accepted and conviction and
sentences awarded by Trial Court were set aside---murder reference was answered in the
negative”.
• 2017 YLR 1196 Lahore
“Ss. 302 & 449---Qatl-i-amd, house trespass in order to commit offence punishable with
death---Appreciation of evidence---Complainant had alleged that accused gave several hatchet
blows on the body of deceased---Motive was deceased's second marriage---Complainant was not
properly confronted by the defense counsel---Names of acquitted co-accused and eye-witnesses were
not mentioned in the complaint---Private complaint was instituted after five months of occurrence-
--Second wife of deceased gave time of occurrence 3:00 A.M. instead of 8:00 A.M. and also omitted
to nominate accused (present appellant), however nominated him when cross-examined by her own
counsel---Complaint was duly thumb marked by complainant who could not circumvent its details
through a belated assertion that it was not recorded faithfully and for the same reason testimony of
ocular account was liable to be rejected---Alleged motive was not proved by the prosecution---
Recovery of hatchet without positive forensic report remained inconsequential---
murder reference was answered in negative---Conviction was set aside and appeal was
allowed”.
• 2017 YLR 292 Lahore
“S. 302(b)---Qatl-i-amd---Appreciation of evidence---FIR, had been lodged with sufficient
promptitude, wherein accused had been nominated as the sole perpetrator of the offence of murder-
--Presence of both the eye-witnesses, who were father and mother of deceased, was not unnatural
or unusual---Father of the deceased child, was real brother of accused, due to such close and sensitive
relation with accused, father and mother of the deceased, were not likely to implicate accused falsely
in a case involving the murder of their son---Eye-witnesses, were subjected to lengthy cross-
examination, but nothing favourable to accused could be extracted---Both said eye-
witnesses/parents of the deceased, were consistent and straightforward on all the salient details of
the prosecution case; their renditions were in consonance with medical evidence---Prosecution had
proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence
inspiring eye-witness account---Accused had mercilessly butchered an innocent child by
slaughtering his neck ---Prosecution had proved motive set up in the case---No mitigating
circumstances, existed warranting reduction in sentence---Sentence of death as well as the order of
payment of compensation, passed against accused by the Trial Court, was maintained---
Murder reference, was answered in the affirmative.
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I hope this helps you.
Prepared by:
Aimal Khan Kakar
LLB Hons – Manchester, UK.
LLM – Cardiff, UK.
