1977 PLP 309 (SCMR)

Date of hearing : 18th March 1977. DORAB PATEL, J. The appellant was' tried with two of his brothers for the murder of Muhammad Anwar, deceased and for causing injuries to P.W. Janas Khan (an alleged eye‑witness of the murder) by the Sessions Judge, Campbelpur. The prosecution relied on the evidence of three eye witnesses including P. W. Janas Khan. Further, as the medical evidence proved that Muhammad Anwar had been killed by a single stab wound, the prosecution claimed to have recovered the knife used for attacking the deceased from one of the appellant's brothers. But both the appellant's brothers denied as absolutely false all the allegations against them, and on a careful appreciation of the evidence, the learned Sessions Judge held that the entire prosecution case was a fabrication including the evidence of the alleged recovery from one of the appellant's brothers. However, the appellant said in his statement to the Sessions Court "On the day of incident Muhammad Anwar deceased, Mir Afsar, Sher Alam and 2 or 3 other unknown persons were about to go up stairs in the chobara of P. W. Sultan Afsar when I prevented them from doing so and told them that they had been making objectionable gestures to the ladies of the locality while standing on the roofs over which residents of the Mohallah have taken exception. The deceased and others however did not pay any heed to my protest and went upstairs in the chobara. When they came down, I again protested to them that they were strangers and it was not good for them to stand on the roof and make objectionable gestures. There was then altercation between us. The deceased and his companions then grappled with me. The deceased was carrying a danda and started to beat me with it. In order to defend myself and to effect my release I took up the knife P. I which was lying near the bags of atta stacked there for the purpose of opening them, and gave a solitary blow to the deceased. Accused Mahbub Ilahi and Inait were not present at the time of incident at all. The P. Ws. were also not present." Thus, the appellant's plea was of self‑defence and it is clear from his state ment that the provocation had not come from his side. However, again according to the medical evidence, the appellant had only two minor abra sions, one on his left elbow and one on his right forearm. Therefore, the learned Sessions Judge held that the appellant had grossly exceeded his right of self‑defence, accordingly, he convicted him under the First Part of section 304, P. P. C. and because the appellant had used a knife, which, in the words of the learned Sessions Judge, was "indisputably a deadly weapon he sentenced the appellant to transportation for life. The appellant challenged his conviction in an appeal in the Lahore High Court, but that appeal was dismissed. Further, as m this Court, one of the appellant's submissions was that even if his guilt was proved under sec tion 304, P. P. C. the sentence passed against him was excessive. This submission was fully supported by judgments of the Lahore High Court, and, for example, in Farida v. Emperor (A I R 1933 Lah. 851) which was also a case under section 304, Part I, P. P. C. Abdul Rashid, J. (as he then was) had reduced the sentence of five years' R. I passed by a Sessions Judge to two years R. I only. It is not necessary to refer to other judgments on this point because the learned Single Judge, who heard the appellant's appeal, was of the view that a severer punishment was necessary because the law and order situation was deteriorat ing and people thought "nothing of taking out knife or dagger and stabbing a man in broad daylight over trifling matters". He, therefore, agreed with the learned Sessions Judge that it was a fit case for the imposition of the maximum sentence and dismissed the appeal by his judgment dated 25‑2‑1974. The appellant filed a petition for leave against this judgment but as this Court held, on an examination of the evidence that there was no ground whatsoever to interfere with the appellant's conviction under Part I of sec tion 304, P. P. C., this Court granted leave to the appellant only on the question of sentence, and we have now heard this appeal. I observed earlier that the Sessions Court rejected as a fabrication the entire evidence produced by the prosecution. As the High Court agreed with this view, the question of the appellant's guilt and sentence had to be determined solely on the basis of his statement in the Sessions Court which I quoted earlier. Now, according to that statement, the appellant had stabbed the deceased only after he had been hit by the deceased with a stick, and this proves to the hilt his plea that he had killed the deceased whilst defending himself. But the injuries received by him were very minor, according to P. W. Dr. Naeemullah. However, P. W. Dr. Naeemullah had examined the appellant six days after the occurrence, and as the appellant had also complained to the doctor about pains in the chest and abdomen, Mr. Saleemi feebly submitted that the appellant's complaints about pains in the chest and abdomen proved that the deceased had hit the appellant with a stick on the chest and abdomen. But as P. W. Dr. Naeemullah said in his evidence that there were no marks of injury on the appellant's chest and abdomen, learned counsel submitted that these marks had disappeared because the passage of time between the date of the occurrence and the date of the of appellant's examination by P. W. Dr. Natemullah. Whilst this plea may well have been true, unfortunately for the appellant, the doctor was not cross‑examined about it, therefore, learned counsel's submission cannot be accepted. This means even according to the appellant's statement that because he had received two very minor blows, he had stabbed the deceased to death, therefore, the case against him clearly fell under the First Part of section 304, P. P. C. and the only question before us is of the sentence passed against him. The learned Assistant Advocate‑General attempted to defend the sentence passed on the ground that the Court was not prohibited from passing the maximum sentence. On the other hand, Mr. Saleemi submitted that the High Court had erred in law in awarding the maximum sentence because of its opinion that murders were increasing, and, according to learned counsel, the question whether murders were increasing or not was not relevant to the exercise of Court's discretion under section 304, P. P. C. and further, accord ing to learned counsel, there was no evidence about the increase of murders in the country. The Legislature has conferred very wide discretion on the Courts in the matter of sentences under the Penal Code, but as the discretion has to be exercised judicially, the Courts would be entitled to take into account the law and order situation, if the object of punishment or one of the objects off punishment be to deter the commission of further crimes. Now, I do not see how there can be any doubt about this question. Salmond observes in his book on Jurisprudence (Tenth Edition) at page 111. "Punishment is before all things deterrent, and the chief end of the law of crime is to make the evil doer on example and a warning to all that are like‑minded with him". I would agree with this passage, and the learned Single Judge was justified in holding that a severer sentence was necessary on account of the increase of crime, provided of course culpable homicides of the type under consideration have increased, as held by the learned Single Judge. Mr. Saleemi's next submission was that there was no material whatever to support the finding of the learned Single Judge that murders had been increasing, and he relied on the fact that the learned Assistant Advocate General was not able to refer us to any statistics to show that murders were increasing at a faster rate than the increase in population. Further, the question is not only of the increase of crime or the increase of murders generally, but of the increase of the type of offence committed by the appellant. Is there any evidence to show that more and more people are taking the law into their hands and exceeding their right of self‑defence? I must confess I am very disturbed by this aspect of the case, which appears to have escaped the attention of the learned Single Judge. However, we can take judicial notice of the fact that the strength of the High Courts have been increased since 1947, but despite this increase, the areas of criminal litiga tion have increased and it would not be unreasonable from these circumstances to infer that the tendency for people to take the law into their own hands had increased also. However, in the absence of statistics it would be hazardous to make more precise generalisation as, for example, that crime has increased in the last decade. And, as no such statistics appear to be available, I have drawn a comparison between the period before and after 1947. Sentences for convictions under the First Part of section 304, P. P. C. before 1947 were on the low side, therefore, the High Court was entitled to pass a severer sentence than, for example, that passed by Abdul Rashid, J. in Farida's case. But the prosecution cannot put its case higher than that. I may also point out here that in Akhtar Hussain v. The State (P L D 1958 S C (Pak.) 251) this Court altered a conviction from section 302, P. P. C. to one under section 304, Part I, P. P. C. and passed a sentence of ten years' R.I only. However, reverting to the judgment under appeal, whilst the increase of violence in the country was a circumstance relevant to the question of the sentence passed against the appellant, with respect, there were other con siderations which were much more important. For example, did the appellant act in a brutal or callous manner, or was he responsible for the provocation which led to the scuffle? If the answers to these questions are in the negative, the sentence of transportation for life was not justified, and the answers to these questions have to be gathered only from the appellant section 342, Cr. P. C. statement. According to that statement, the appellant had inflicted "a solitary blow to the deceased" and in passing I may point out that even according to the medical evidence the deceased had only one stab wound, therefore, it is clear that the appellant had not acted in a brutal or callous manner, and his conduct compared favourably with that of the appellants in Akhtar Hussain' case who had smashed the brain of the deceased "to pieces". This was an important circumstance, the significance of which was not properly appreciat ed by the Sessions Court and by the High Court, because the weapon used was a weapon which could cause death, namely a knife, and in this connec tion the learned Single Judge observed that the appellant "was not justified in whipping out his knife and stabbing the deceased". No doubt, the so‑called prosecution eye‑witnesses had said that the appellant had whipped out a knife from his clothes, but as their evidence was rejected by both the Courts as absolutely false, with respect, the learned Single Judge should have decided the question of sentence solely by reference to the appellant's under sec tion 342, Cr. P. C. statement. Now the appellant had said in that statement that he had picked up a knife only after he had been beaten by the deceased and that he had used this knife to defend himself. Thus the choice of the weapon was fortuitous, and this was another circumstance in the appellant's favour which escaped the attention of both the Courts. Additionally, it is also very clear from the appellant's statement that the quarrel was not of his seeking. It is true that the appellant had warned the deceased not to misbehave, but as this was on account of the anti‑social behavior of the deceased, the appellant's conduct in reprimanding the deceased was condemnable. This means that the deceased had picked up a quarrel and the appellant had retaliated only after he had been attacked by the deceased, therefore, with the utmost respect, the sentence passed was not a proper exercise of discretion vested in the Courts under section 304, Part I, P. P. C. and the ends of justice would be served by reducing the sentence to 7 years' R. I. In the result, I would allow the appeal on the question of sentence only and reduce the sentence against the appellant to 7 years' R. I. ANWARUL HAQ, J.‑I agree that the appellant's conviction be maintained but the sentence be reduced to seven years' R.I. MUHAMMAD AKRAM, J.‑I agree with the conclusions. Sentence reduced.