P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.‑In this case, special leave was given to the appellant Sher Hassan to appeal against the sentence of death awarded to him by the High Court by way of enhancement in revision, for the murder of one Sultan Shah in order "to consider the question whether the High Court in enhancing the sentence to one of death . . . . kept in view correct legal principles and all the circumstances of the case." The facts briefly are as follows.. The deceased Sultan Shah was a stranger to village Turlandi to which the appellant belongs. He had bought some land from a second cousin of Sher Hassan, which adjoined certain land belonging to Sher Hassan's family, who apparently resented the introduction of the stranger. The sale was completed on the 30th May 1956. The very next day at about 10 a.m. Sher Hassan and his elder brother Sher Afzal were in their land and Sultan Shah was inspecting his adjoining land. They demanded in anger why he had bought the land. He replied that he had paid money for it, and immediately Sher Afzal took out a pistol from under his chaddar and handed it over to Sher Hassan, ordering him at the same time to shoot. Sher Hassan fired three times. In the meantime Sultan Shah had started to run. One of the shots hit him in the lower back and caused an injury, which immediately brought him down, and led to his death three days later. The alleged eye‑witnesses were two persons Zaman Shah, and Sawar Khan, who came from a distance of about 120 paces and Zar Muhammad who came from a distance of about 60 paces. The principal evidence in the case however was that afforded by the initial report, which was proved as a dying declaration by the deceased Sultan Shah. The report was made at Thana Kalu Khan about an hour after the occurrence. Sultan Shah there said that Sher Afzal produced the pistol from under his chaddar and gave it to Sher Hassan ordering him to fire. The alleged eye‑witnesses on the other hand stated that when they reached the spot, Sultan Shah said only that Sher Hassan had shot him Zaman Shah and Zar Muhammad did not even see Sher Afzal on the spot, but Sawar Khan declared that he had seen Sher Afzal standing at a little distance when Sher Hassan was pursuing Sultan Shah. Both the accused persons pleaded alibi. Their alibis were examined carefully by the Courts below in relation to the evidence produced, and found to be unworthy of beliefs. The trial Court convicted both Sher Afzal as well as Sher Hassan, and in doing so laid "greatest reliance on the dying declaration of the deceased, supported, as it is by evidence, as is discussed above, of Zaman Shah, Zar Muhammad and Sawar Khan." Sentences of transportation for life were awarded, to Sher Afzal because he was not the person who actually fired at the deceased and to Sher Hassan because he was "only a boy of about 18 years of age." There was an appeal to the High Court, as well as a petition by a relative of the deceased, praying that the sentences of transportation should be enhanced to death. The learned Judges after discussing the evidence of the alleged eye‑witnesses, and stressing the doubts arising therefrom as to the participation of Sher Afzal went on to declare as follows: ‑ "But the dying statement by itself leaves no room for doubt that both the appellants were present at the spot, and that they had engaged in an altercation with the deceased over the land he had purchased. We doubt, however, whether it was necessary for Sher Afzal to hand over the pistol to his brother and it may be that in this detail the deceased has allowed his indignation to involve Sher Afzal in a more serious offence than he was guilty of. Considering that the witnesses also are not anxious to implicate Sher Afzal, we would give him the benefit of doubt and acquit him." Accordingly, the necessity of considering the revision petition for enhancement of sentence did not arise in the case of Sher Afzal. The conviction of Sher Hassan was however maintained, and his sentence was enhanced on the following grounds: - (1) that the reason given by the Sessions .fudge for applying the lesser penalty, namely, that Sher Hassan was "only a boy of about 18 years of age" was not a sufficient reason, and that in the High Court "we have not generally regarded a person of 18 years as being of a tender age, who could be excused from the normal penalty attending a charge of murder" ; and (2) that the evidence of the two doctors who had examined him for age led to the conclusion that Sher Hassan was between 18 and 19 years of age. The ground urged as justifying the lesser sentence are firstly that there was evidence to show that the appellant acted under the influence of his elder brother Sher Afzal secondly, that the difference of age between him and Sher Afzal was at least 5 years and could be as much as 7 years, and thirdly, that on a fair reading of the medical evidence, there was a clear possibility that at the time of the offence, Sher Hassan was no more than 16 years of age. Having heard the learned Advocate‑General in reply, we are of the opinion that these are circumstances of appreciable weight in relation to the determination of the appropriate sentence for Sher Hassan. It is establish that the deliberately fired at Sultan Shah with the intention of causing his death. Such an act, if it leads to the death of the intended victim, properly invites the extreme penalty of death for the offender unless his responsibility is minimised in some way. The features of diminution advanced are firstly immaturity of age, and secondly, immediate control by a superior influence. It is clearly not possible to fix any limits of age above or below which such an act might be thought to be adequately punished by inflicting the lesser penalty of transportation for life. We agree with the learned Judges of the High Court in thinking that the person aged 18 years who commits a deliberate act of murder in the circumstances here found must be assumed to act with full responsibility. But, it must be allowed that as the age of the agent is reduced, the degree of responsibility in this respect diminishes with increasing rapidity. The age of 18 years, which is recognised as the age of majority, is achieved after a period of nonage in which the growing child gains through experience a correct appreciation of his relationship to other people, and the limitations upon his own freedom of action, which this entails. An essential feature of the process is the elimination of the controls exercised by senior members of the family. From being absolute in his years of infancy, these are brought down to a few essentials by the time majority is achieved. The process is accelerated in the later years of nonage, so that in the relevant respect, the disparity of responsibility between a boy of 16 and a young man of 18 might be very appreciable, particularly in the aspect of control by senior members of the family. The view that the learned Judges have taken of the estimates of age given by the two doctors does not appear to us to be the only one, which is possible in the case. The relevant date for determination of the age in relation to the criminal responsibility being the 31st May 1956, great importance must be attached to the statement of Dr. Shams‑ul‑Islam, Assistant Surgeon at the Civil Hospital in Swabi, (P. W.‑3), who stated that when he examined Sher Hassan on the 4th June 1956, he judged his age to be, by appearance, 17 years. The other doctor, namely, Dr. A. H. Zaman (P. W 4), placed the age of Sher Hassan at between 18 and 19 years, after examining Sher Hassan in Court on the 11 th February 1957, some 8 months after the occurrence. This doctor placed the age of the elder brother Sher Afzal at 24‑25 years. Cross‑examined as to the physical characteristics on which he based his estimate, Dr. Zaman said that one wisdom tooth (out of four) i.e., the left lower wisdom tooth, had erupted and that ordinarily "it comes out after the age of 17". The fact that only one such tooth had appeared might be thought to furnish a strong indication that on the 11th February 1957, Sher Hassan was very close to the age of

17. It would follow from this that on the date of the occurrence, his age was appreciably below 17 and may have been as little as 16 years and 4 months. This disparity of age between him and Sher Afzal is also a relevant factor in the case. The minimum disparity appearing from the evidence of the two doctors is five years, and according to Dr. Zaman's statement, it might be as much as 7 years. There can be no question but that on a boy of 16 the influence of a brother older than himself by 5 or 7 years is very considerable. This would be particularly so in areas where society is organised, as it still is over much of the old North‑West Frontier Province, on a tribal and patriarchal pattern. The learned Judges have declined to believe the evidence tending to show that Sher Hassan was given the pistol by Sher Afzal and only fired upon being ordered to do so by the latter. They have given the benefit of the doubt on this point to Sher Afzal, while at the same time believing that Sher Afzal was on the spot. But they have not adjudged the effect of the doubt on this point in relation to Sher Hassan. The doubt being whether one of two possibilities represents the truth, the possibility that Sher Afzal did not hand over the revolver or order Sher Hassan to shoot is one of which the benefit must go to Sher Afzal. But that is no reason why the alternative possibility, namely, that being on the spot Sher Afzal did produce the revolver and order Sher Hassan to shoot with it, should not be given its due legal effect in relation to Sher Hassan. He is entitled in law to ask that the decision on the matter of sentence, which tends to effect him vitally, should be based on the supposition that he did act under the influence of his elder brother. If the learned Judges in the High Court had taken into account these factors, namely, that the age of Sher Hassan may have been less than 18 by nearly 2 years, and that it is a possibility that he acted under the immediate influence and direct orders of a brother some 5 to 7 years older than himself, they may well have considered that the lesser sentence of transportation which had been awarded to Sher Hassan by the trial Court was not inappropriate. In our view, the circumstances mentioned above are adequate reasons for refraining from applying the extreme penalty in the case of Sher Hassan, and since they have not been taken into account by the High Court while enhancing the sentence, we hereby allow this appeal and direct that the sentence awarded by the Sessions Judge to Sher Hassan, namely, transportation for life under section 302, P. P. C., shall be restored in place of the sentence of death awarded by the High Court. A.H. Order accordingly.