P L D 1991 Supreme Court 1059 (PLP)

Date of hearing, 12th May, 1991. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This petition for leave to appeal is directed against judgment of the Lahore High Court dated 10‑6‑1990; whereby, in a case of murder the sentence of death awarded to the convict/respondent No.1 was reduced to imprisonment for life. The petitioner has sought enhancement and restoration of the sentence, to death. The plea which prevailed with the High Court was that the accused/convict "considered the deceased responsible for the death of his uncle". Earlier while accepting the prosecution case on the question of motive the learned Judges of the High Court had observed as follows:‑ "The motive is not disputed by the appellant. He has admitted that his uncle was murdered for which the deceased was tried and acquitted." In the F.I.R. also the motive mentioned is that the deceased was accused of the previous murder but he was honourably acquitted (BA IZZAT BARI KAR DIYA GAYA). Learned counsel for the petitioner has contended and rightly so that there is considerable case‑law in support of the proposition that where murder is committed out of a sense of honour and family need on account of or rather in pursuance of the norms of human behaviour in a particular area, lesser penalty might be more appropriate. In this line of authority learned counsel has cited the well‑known case of Ajun Shah v. The State (P L D 1967 Supreme Court 185) and others. The other line of authority is to the effect that private revenge cannot be regarded as a mitigating circumstance, learned counsel has cited the case of Mehr Muhammad and another v. The State 1970 SCMR 688 and a large number of cases falling in that line of authority. The learned counsel also stated that he has prepared the following list of cases which may fall in either line: (1) Mureed Ahmad v. The State 1987 SCMR 429; (2) Muhammad Din v. The State 1985 SCMR 625; (3) Muhammad Aslam v. The State PLD 1985 SC 257; (4) Pervaiz v. The State 1984 SCMR 848; (5) Muhammad Aslam alias Chhachhi v. The State 1982 SCMR 1029; (6) Ali Khan v. The State PLD 1980 SC 109; (7) Mokha v. The State PLD 1978 SC 10; (8) Mehr Muhammad and another v. The State 1970 SCMR 688; (9) Ajun Shah v. The State PLD 1967 SC

185. It will be of advantage to note what the learned Judges in the case of Ajun Shah also thought to be an element of revenge in cases like the present one. It was held that the convict in that case whose sentence of death had also been confirmed by the High Court, was a product of environment and the circumstances in which he committed the act of murder were such that he had not only treated it as a matter of honour and tradition but also of "family duty to avenge the murder". In that very case a further caution was given that. the honourable Judges should not be deemed to have suggested even "for a moment that private revenge can be regarded as a mitigating circumstance". What they took pains to emphasize was that "the question of sentence in each case must depend upon the facts of the case" and that in the particular case (Ajun Shah ) the criminality was not of a kind which could be visited with extreme penalty. The Supreme Court also visualised that if the circumstances noticed by the Supreme Court and mentioned in their judgment had been brought to the notice of the learned Judges of the High Court "perhaps they would not have confirmed the sentence of death". Accordingly the sentence was reduced to the lesser of the two penalties. This would show that in the case of Ajun Shah also an element of personal and private revenge noted in the case of Mehr Muhammad, was involved. Nevertheless in one case the sentence was reduced to the lesser penalty while in the other it was considered as a matter of surprise "that the High Court did not in a case of this nature, think it fit to issue a rule for enhancement off sentence. But since there is no application before us either by the State or by the private informant for enhancement of sentence we do not desire to say anything further on this question". As is some times thought by some Members of the Bar, there is no conflict of authority on the subject under discussion. It was explained very vividly in the case of Ajun Shah that the reduction of sentence on the question of family honour or duty can be allowed notwithstanding the fact that an element of private revenge is involved in such like cases. The ratio in all these cases being that it depends upon the circumstances of each case to determine the very delicate balance between whether family honour and duties overtook the human thought and action and whether the private revenge predominantly overtook such thought and action. To put it otherwise it is very delicate process of making a judgment and rendering a decision on such like most painful situations. The Judge has to go through the process of rationlization, and psychological analysis. By experience and knowledge of human nature he decides a difficult point: whether the family honour or for that matter a duty ends and private revenge takes over. In one case the lesser penalty and in the other the extreme penalty is then awarded. It also depends upon the stage when the question more serioulsy arises. If it ‑is before the trial Court, the exercise for determining the sentence would be extensive and the decision will be very much difficult either way. In the High Court the exercise is of a different nature to some extent. Again the shade of responsibility would be different when it is a question of confirmation of the oath sentence than, when it is question of enhancement of the sentence, to death sentence. In the latter case the Judge may not like to be treated as a hang man; yet as warned in the case of Mehr Muhammad already noticed, such like considerations should not weigh with the Judges. At the Supreme Court level and to an extent at High Court level also while upholding death sentence it is different principles and manner of judicial exercise; the reversal to governed by the lesser penalty or enchancement to death sentence, are governed by other principles. These latter principles partake of all those rules which have been 'tabulated from the mass of case‑law in the case of Ghulam Sikandar v. Mamraz Khan and others (PLD 1985 SC 11). As in the case for enhancement of sentence where it depends upon the findings of fact or reversal thereof, ordinarily findings of fact would not be reversed. In matters like the present one for enhancement to death penalty (or for setting aside acquittal) unless amongst others there is either misreading or non‑reading of evidence on a very substantial joint and/or there has been a miscarriage of justice ordinarily there is no interference. One test to determine whether, there has been miscarriage of justice would be to answer a further question; whether, the view taken by the lower Court on question of acquittal or reduction of sentence was impossible? In this case none of the tests is satisfied. We in the light of the foregoing discussion are unable to agree with the view that wherever private revenge forms an element in the crime the same by itself should prevent the Court from doing justice in matter of sentence as was done in the case of Ajun Shah and scores of other cases. This petition, therefore, merits dismissal. Before closing this order we would like to make two more remarks in the context of the subject under discussion. One, that in every case of sudden fight a definite element of revenge of graver or lesser intensity is involved. When it is grave it projects itself in the form of cruelty or unusual act which may also be accompanied by undue advantage. When the intensity is lesser there are no such elements in the conduct of the accused. In the former case the accused could lose the right to lesser offence under section 304, Part I, P.P.C. if the initial charge is of murder under section 302, P.P.C. But in every such case the penalty of death is not always awarded. It has been ruled in a number of cases by the superior Courts that in case some of the conditions in the exceptions to section 300, P.P.C. are substantially satisfied but others are not then the least that the Court can do in such a difficult situation is that it may award lesser sentence but under the charge of murder; because, for acquittal from that charge and conviction for the lesser offence under section 304, Part 1, P.P.C., all the conditions of an exception must be satisfied. Similar examples can be cited from the other exceptions under section 300, P.P.C. Exception I provides that culpable homicide shall not amount to murder if the offender while deprived of the power of self‑control by grave and sudden provocation causes the death of the person who gave the provocation ‑‑‑‑‑‑‑‑‑‑‑ Supposing in a given case the condition of suddenness is not established but that of the provocation being grave is satisfied the accused shall not be entitled to the benefit under the exception. He, if convicted under section 302, P.P.C. might be given lesser sentence on account of one of the conditions of the Exception having been satisfied. Similar example can be cited regarding exception No.2 which relates to exceeding the right of private defence. In a given case if the conditions of Exception 2 are satisfied the offence shall be altered to section 304, Part 1, P.P.C. but in case some of the conditions are satisfied and the others are not satisfied, while maintaining the conviction under section 302, P.P.C. the sentence could be reduced to the lesser penalty. These principles could apply mutatis mutandis to the cases of the present type as an element of revenge is inherent in all these exceptions. In the light of the foregoing discussion this petition is dismissed and leave to appeal is refused. M.BA./G‑338/S Petition dismissed.