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-040RDER SHEET IN THE FEDERAL SHARIAT COURT OF PAKISTAN **** Sh. Petition No.01-1 of 2018 (Gui Wali Vs. Secretary Law, Govt. of Pakistan etc) -:-:-:-:-:-:-:-:-:DATE 03. 20.11.2018 Islamabad PRESENT ........., Mr. Muhammad Khurshid Khan, Advocate for the petitioner. Preliminary Hearing Learned counsel for the petitioner ~~-~ argued __ the case at length. At the end, learned counsel prayer in this petition clearly stated that his is only to .the extent of mode of execution of death sentence mentioned in section 368 Cr. PC. In other words, he assails only section 368 Cr.PC considering it as repugnant to the Injunctions of Islam. Learned counsel also death prayed for stay of execution sentence awarded to the petitioner-Gui learned Sessions Judge, Islamabad 23.02.1997 in case registered at P.S FIR Wali by the vide his Judgment No.69/1995 of dated dated 01.06.1995 i Kohsar, Islamabad. The conviction .!) and sentences awarded by learned trial court were upheld by thef .i1 learned High Court and by the Hon'ble / :i; Supreme Court. Even 1: i: ·' r; mercy petition has statedly been dismissed. : I' It is to clarify t_b_;3.t this Court can only pass order, which.' ~ - ' will be prospective and not retrospective. Even otherwise, this.' prayer is in respect of the relief in personam, which cannot be. granted by this Court. Resultantly, stay of execution of deat~ . sentence cannot be granted by this Court, therefore, Crl. Application No.01-1 of 2018 for stay. of execution sentence of the petitioner is DISMISSED. M,. .i of d~~th ;{f ,·)~ .~f_~/ f}~ ·~·

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Gulwali Khan

CASE BRIEF

Jurisdiction

Pakistan

Case Title: Gulwali v. Secretary Law, Govt. of Pakistan etc.

Age at Offence: 16

Age Group at Offence: Minor (Below 18)

Gender: Male

Religious Group at Offence: Islam

Vulnerable/ Marginalised Group

Juvenile

Jurisdiction - Geolocation

Latitude: 30.3753

Longitude: 69.3451

Jurisdiction - Geolocation (linked CASE BRIEF): Pakistan

Contributing TRP Partner

Justice Project Pakistan (Pakistan)

Latest Country's Death Penalty Status

Retentionist

Case Current Status: Ongoing: Pending

Year when sentenced to Death Row: 1990s: 1995

Method of Execution: Hanging

Rights Allegedly Violated

Fair Trial and Due Process: Fair investigation & fair disclosure
Dignity: Grounds prohibiting executions
Torture: Torture/Cruel, Inhuman or Degrading Treatment or Punishment (CIDT)

Nature of Offences for Death Penalty

Murder: Single Victim

Expert Evidence

Forensic/Medical evidence: Autopsy/Post mortem
Forensic/Medical evidence: Medical examination (victim/accused, age determination etc)

Case Background (300 words max): Gulwali Khan, son of Said Ghuwas, was arrested for the murder of Mazhar-ul-Haq, Resident Director of Lakson Tobacco Group of Companies, who was killed by strangulation on the night between 31st May 1995 and 1st June 1995 at his residence in Sector F-6/3, Islamabad. The case involved three accused: Ghulam Khaliq, Mushtaq Ahmed, and Gulwali Khan. They were charged under Sections 302, 34, 460, and 380 PPC for murder, common intention, housebreaking by night, and theft.

The FIR No. 69/1995 was registered at Police Station Kohsar, Islamabad. The accused were arrested on 8th July 1995. According to the prosecution, Gulwali Khan and Ghulam Khaliq had previously worked as domestic servants for the deceased and were dismissed with unpaid salaries, leading to a motive for revenge. The prosecution relied on judicial confessions, which the defense claimed were extracted through coercion and police torture. The defense also pointed out the lack of eyewitnesses and motive.

The Trial Court sentenced Gulwali Khan to death on 23rd February 1997. The High Court upheld the conviction on 14th November 2002, while altering Ghulam Khaliq’s death sentence to life imprisonment. The Supreme Court dismissed Gulwali Khan’s appeal on 28th January 2011, affirming the death sentence due to a lack of mitigating circumstances.

Gulwali Khan later filed a petition in the Federal Shariat Court in 2018, challenging the mode of execution, but subsequently withdrew it. He remains on death row at Central Jail, Haripur, after decades of legal proceedings.

Defence Arguments (200 words max.): The defense in Gulwali Khan's case presented several arguments to challenge the prosecution’s claims and the legitimacy of the conviction:

No Eyewitnesses or Direct Evidence: The defense argued that none of the accused were named in the FIR, and there were no eyewitnesses to the murder of Mazhar-ul-Haq. The prosecution’s case relied heavily on circumstantial evidence and confessions.

Coerced Confessions: The defense contended that the judicial confessions of Gulwali Khan and the co-accused were obtained through coercion and police torture. These confessions were later retracted by the accused, undermining their reliability and voluntariness.

Lack of Motive: The defense argued that there was no clear motive for the accused to commit the murder. While the prosecution claimed unpaid salaries were a motive, the defense highlighted the lack of substantial evidence to support this claim.

Violation of Legal Safeguards: The defense pointed out that the accused were not afforded fair trial rights, and proper legal representation was lacking, as state-appointed counsel represented them.

These arguments raised serious concerns about the integrity of the evidence and the fairness of the trial process.

Judgement with Headnotes (200 words max): In the final judgment delivered by the Supreme Court of Pakistan on 28th January 2011, Justice Nasir ul Mulk upheld the death sentence of Gulwali Khan. The Court found that Gulwali Khan had a clear motive for revenge after being dismissed from employment without pay following an allegation of theft. His judicial confession corroborated with those of the co-accused, and the evidence, including medical findings, supported the prosecution's case. The Court ruled that there were no mitigating circumstances to alter the death sentence initially imposed by the Trial Court.

While the death sentence of co-accused Mushtaq Ahmed was converted to life imprisonment, Gulwali Khan’s appeal (Crl. Appeal No. 71/2005) was dismissed.

Headnotes:

Motive and Common Intention – Gulwali Khan’s motive of revenge was established, supporting the conviction under Section 302 PPC. Judicial Confessions – Confessions, corroborated by medical evidence, held admissible despite claims of coercion. Mitigating Circumstances – Lack of mitigating factors justified the upholding of the death penalty. Co-Accused – The sentence of co-accused Mushtaq was reduced to life imprisonment, distinguishing his case from Gulwali Khan’s.

Legal Representation Received

Second Appeal: Pro bono
Pre-trial: State Legal Aid
Trial: State Legal Aid
Appeal: State Legal Aid

Legislation Related to the Offence(s): Section 302 PPC Section 34 PPC Section 460 PPC Section 380 PPC Section 342 CrPC Section 368 CrPC Section 374 CrPC

Judicial Precedents: State v. Muhammad Sarwar (PLD 1997 SC 87) Mst. Khurshid Bibi v. The State (PLD 1997 SC 324) Ghulam Dastgir v. The State (PLD 2002 SC 529) Muneer Ahmed v. The State (2001 SCMR 1964) The State v. Muhammad Iqbal (PLD 2003 SC 122)

Case Brief Entry Status: Complete

Language of Case Materials

English

Is the case brief featured?: No

Primary Documents

PRIV_Juvenile_Gulwali_Compilation of all orders of FSC+Appliaction.pdf
English
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Death Penalty Defence - Asia

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Gulwali Khan

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