P L D 1963 Supreme Court 89 (PLP)

Date of hearing: 14th November 1962. B. Z. KAIKAUS, J.‑--Fateh Khan, Bati, Qadar Dad, Anwar, Aslam, Bakri, Saghra, Muhammad Khan and Bhalu, were tried by the Additional Sessions Judge, Gujrat, of offences under sections 148 and 302/149, P. P. C. Bhalu was acquitted while the remaining eight were convicted and sentenced to death. On appeal the convictions were maintained, but the sentences of three of them i.e., Aslam, Anwar and Bakri, were reduced to transportation for life. All the eight convicts filed a petition for special leave to appeal in this Court. The Bench which hard the petition for leave was of the opinion that there was no reason to interfere with the convictions, but that the question as to whether the death penalty should have been imposed required consideration and leave was granted on this limited point. The effect of this order was, though it was not clearly stated in the order that the petition for special leave stood dismissed in relation to Aslam Anwar and Bakri peti tioners. The complainants as well as the accused, with the exception of Qadar Dad and Bhalu accused belong to village Amra Khurd, Tehsil Phalia, District Gujrat. According to the prosecu tion case Mst. Budhi a sister of Fateh Khan appellant had about two months before the present occurrence which took place on the. 25th July 1960, been abducted by Bhaloo, P. W., who along with Fateh Khan deceased and some other persons had been sent up for trial within 2‑3 days of the occurrence, but all the accused were in that case discharged as Mst. Budhi made a statement in their favour. One day before the occur rence Fateh Khan deceased received a message from Bhalu acquitted accused to the effect that he (Bhalu accused) had some urgent business with Fateh Khan deceased and wanted him to visit his house. This message had been brought by one Phulla and had been delivered in presence of Sultan and Bhaloo, P. Ws., who are cousins of Fateh Khan deceased. Bhaloo, P. W., was at that time being suspected of a theft of bullocks and he had asked Bhalu accused to satisfy the owner of the bullocks that he was not the thief and it was considered that the message was in connection with this theft. It may be explained here that while the remaining accused are closely related inter se Bhalu was only their party‑man. On the day of occurrence i.e., the next day after the message was received Fateh Khan deceased and Bhaloo and Sultan, P. Ws., went to Khokhar the village of Bhalu accused, but they did not find him in his house. They waited for about three hours and then as he did not turn up they left at about noon for their own village. They were on horseback. When they reached near Wara Machhian which is about one kos from village Khokhar, all the nine accused appeared out of the Wara and attacked them. Fateh Khan, Qadar Dad, Anwar, Aslam, Bakri and Muhammad Khan accused were on mares and were carrying spears. Saghra had a hatchet while Bati and Bhalu accused bad sotas. Saghra, Bhalu and Bati were on foot. The deceased and his companions tried to run away. Bhaloo and Sultan succeeded while the deceased was encircled by the assailants. The deceased received in the first instance barchhi blows from Fateh Khan and Aslam accused and fell from his mare. He got up and tried to run away and while he was running he was given barchhi blows by Qadar Dad, Anwar, Bakri, Muhammad Khan and Fateh Khan accused. He had a dang which he was waving in self‑defence. When he crossed the Sem Nala which is towards the south of Wara Machhian, he was overtaken by Bati and Bakri accused who gave him stick blows as a result of which he fell on the ground. Saghra accused then reached the place where he had fallen and gave him hatchet blows. Then all the accused collected together at that place. Those who were on mares got down and then they all gave him a severe beating. They then left the spot and very shortly after Fateh Khan expired. A report of this occurrence was lodged by Sultan, P. W., on the same day. The above is the story which has been accepted by the Courts below and on the basis of which the question as to the penalty to be imposed is to be decided. It will be proper to state the injuries received by the deceased in some detail. The number of injuries given in the statement of the doctor is fifty two out of which 13 are incised wounds; 20 contusion marks, 5 contused wounds, 12 abrasions and 4 punctured wounds, but a closer examination shows that the number was probably much larger for there are four multiple contusion marks in areas of 4" x 2 ", 12" X 6 ", 4 " x 2 and 3" x 2 " respectively and in one item three incised wounds are included. Right and left pleura were punctured by fractured ribs. The right lung was punctured by ribs at one place the dimensions of the wound being " x " x 2 . The left lung was punctured by ribs at four places. The peritoneum was punctured on left side by fractured ribs. The diaphragm was punctured on the left side. The spleen was punctured by fractured ribs. The cause of death in the opinion of the doctor was shock and haemorrhage due to injuries to the lungs and the spleen. Two of the injuries were sufficient in the ordinary course of nature to cause death and death would have occurred within a few minutes after the receipt of the injuries. The doctor admitted in cross‑examination that there was no sharp‑edged or sharp pointed injury on any vital part of the body. Learned counsel for the appellants urges in the first place that there was nothing to justify a distinction between the case of the three accused whose sentence was reduced by the High Court and that of the appellants whose sentence of death had been confirmed. In the second place he urges that there is no proof as to who inflicted the fatal blow and that the sentence in the case of those who have not inflicted the fatal blow should be transportation of life. Learned counsel stresses the fact that the vital organs were avoided by the assailants when inflicting blows. As regards the first contention the High Court reduced the sentence of Aslam, Anwar and Bakri on the ground that Aslam being the son of Fateh Khan appellant, Anwar being the son of Qadar Dad appellant and Bakri being the nephew of Qadar Dad appellant, these three accused had acted under the influence of the senior members of their family. Learned counsel for the appellants points out that Aslam is aged 23 years while Anwar and Bakri are 24 years of age each and he urges that as they are not minors they cannot have any benefit on the ground that they were under the influence of the senior members of the family. It is sufficient for us to say that the question as to whether there is any difference between the cases of those whose sentence of death was confirmed and those whose sentence was reduced is not relevant for the purposes of determining whether we should or we should not reduce the sentence of the present appellants. If the sentences of three of the accused were impro perly reduced that would hardly be a ground for reducing the 4entence in respect of the present appellants also. In section 367 of the Criminal Procedure Code there is a definite indication of the mind of the Legislature that death is the normal sentence to be awarded in a case under section 302, p. P. C. This provision runs: ‑ "If the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death the Court shall in its judgment state the reason why the sentence of death was not passed." As will appear from the cases, which were cited before us during argument what has been stated above is the view which had generally prevailed in pre‑Partition India and which has prevailed in the Lahore High Court and the West Pakistan High Court after Partition. The imposition of a penalty other than death has to be justified by some reason. As to what may constitute that reason no hard and fast rule can be laid down. While occasionally an accidental fact, for instance the time that has expired since the offence was committed, may become relevant, ordinarily the question as to the penalty to be imposed will depend on an assessment of the extent of the guilt or the moral turpitude involved in the act of a particular accused. For this assessment the whole of the conduct of the accused in so far as it reveals his mental attitude and the nature of his act will have to be taken into consideration. The case before us is one of merciless beating inflicted in pursuance of a plan. That the assailants intended to kill the deceased there can be no doubt although there is no injury by a spear or a hatchet on any vital part. The intention of the assailants in cases of merciless beating is not only to put an end to life but to inflict pain and to satisfy the lust for revenge by continuous beating. In such cases the fact that vital organs are deliberately avoided is not an extenuating circumstance and may even constitute an aggravating circumstance for if vital organs are avoided the beating will be more prolonged. While in the circumstances of a case the fact that a particular accused has not given the fatal blow or that his liability is only vicarious, may be a good ground for imposing the lesser penalty, in a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the Court attributes the intention of causing death in a brutal manner should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty. It may be that in the case of a particular accused, although he too has caused some injury to the deceased the Court is not satisfied, having regard to all the circumstances that he shared such intention, but if it is so satisfied there is no need of proof of further facts in order to justify a sentence of death. In fact generally in cases of the kind with which we are dealing it will be difficult to determine who caused the fatal blow unless we were to rely on the statement of an interested witness who may have leis own motive for attributing the fatal blow to a particular accused. If only those who inflicted the fatal injury are to be awarded the maximum penalty no one of the accused may in such cases be liable to such penalty. In the present case there is no reason to attribute to any of the persons who took part in this assault any intention other than that of causing death in a brutal manner. We are not, therefore, inclined to interfere with the sentence imposed by the High Court and dismiss this appeal. A. H. Appeal dismissed.