P (PLP)

AKRAM, J.‑Intizam Hussain the petitioner for special leave to appeal, was convicted on the 26th March, 1949, by the Additional Sessions Judge of Hyderabad, under section 302 of the Pakistan Penal Code, for the murder of one Abdul Latif, and under section 324 of the same Code for causing hurt to Abdul Latif's brother Abdul Rashid, and was sentenced under the former section to death and under the latter to two years' rigorous imprisonment; his appeal to the Chief Court of Sind was dis. missed and the sentence of death passed upon him was confirmed; he is, therefore, seeking now for special leave to appeal from the judgment of the Chief Court of Sind. Briefly, the case for the prosecution was that three brothers, Abdul Hamid; Abdul Rashid and Abdul Latif (deceased) with some others, settled in Hyderabad after their migration from Delhi upon partition; that Abdul Rashid and Abdul Latif opened a cycle shop at ‑Hyderabad and appointed the petitioner (Abdul Hamid's wife's brother) as head‑mistry; that shortly before the occurrence the petitioner wrote a letter to his brother Intizar at Karachi, in which he made some disparaging and offensive remarks against the parents and brothers of Abdul Hamid, and made it over to one Siddiq for delivery that Abdul Rashid Some how saw this letter and became very angry; that he then went to the petitioner's mother at Karachi, and complained to her about the petitioner's conduct, whereupon the lady promised to remonstrate with the petitioner and came over to Hyderabad on the 16th June 1948; that, on the next morning the petitioner went to the cycle shop as usual and proceeded to work; Abdul Latif was already in the shop but Abdul Rashid came a bit late; that on seeing Abdul Rashid, the petitioner left his work and took him to task for reading his private letter, that an altercation soon started between the two in the course of which the petitioner whipped out a knife and struck Abdul Rashid with it on his hand; Abdul Latif, who was nearby, came to intervene, but he too was attacked with the knife, with the result that he expired in the evening of the same day. The plea in defence was that the incident occurred in the course of a fight between the two brothers Abdul Rashid and Abdul Latif, over a domestic affair (some misbehaviour by Abdul Latif with the wife of Abdul Rashid), but the petitioner was falsely implicated in order to save Abdul Rashid. It was urged before us by the learner) counsel for the peti tioner that the evidence of the prosecution witnesses was not of a satisfactory character and should not have been relied upon; but this Court is not a Court of criminal appeal and we cannot go into evidence over again. The Chief Court of Sind, which, is the final Court of appeal, accepted the evidence of the prose cution witnesses and it has not been shown to us that it acted on any erroneous principle which resulted in a miscarriage of justice. This contention, therefore, fails. Next, it was urged that as the sentence of death was passed upon the petitioner as long ago as the 25th March 1949, it ought not to be executed now after such a long delay, and in this connection our atten tion was drawn to the following observations of Spens, C. J., in the case of Piara Dusadh (1944) F. C: R. 61 p. 114 and others: "As regards the sentence it was urged that the death sentence imposed in these cases should be reduced to transportation for life on account of the time that has elapsed since the sentences were first pronounced (See Autar Singh v. Emperor (1913) 21 I C 887, p. 893). It is‑ true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under threat of execution, and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the Courts before which they were tried and o . the validity of the sentences themselves. We do not doubt that this Court has power, where there has been inordinate delay in executing death sentences in cases which come before it, to allow the appeal in so far as the death sentence is concerned and sub stitute a sentence of transportation for life on account of the time factor alone, however, right the death sentence was at the time when it was originally imposed. But this is a juris diction which very closely entrenches on the powers and duties of the executive in regard to sentences imposed by Counts. It is a jurisdiction which any Court should be slow to exercise. We do not propose ourselves to exercise it in these cases. Except in case No. XLVII (in which we are commuting the sentence largely for other reasons as hereafter appears), the circumstances of the crimes were such that if the death sentence which was the only sentence that could have been properly imposed originally, is to be commuted, we feel that it is for the executive to do so. We do not doubt that in each case the executive will give the fullest consider ation to the period that has elapsed since the original impo sition of the sentence and to the consequent mental suffering undergone by the convict." Counsel for the petitioner laid great stress upon the foregoing observations and submitted that the learned judges Tayabji, C. J. and Constantine, J., had refrained from giving relief upon the erroneous assumption that they were not competent to consider the matter, that this error was apparent from the following state ment contained in their judgment:‑-- "There has been a great delay in the disposal of this appeal on account of the delay in the printing of the paper‑book, but this is not a matter which this Court can properly take into con sideration in reducing the sentence." But, we are of opinion that the question of commutation of sentence of death on the ground pf delay in its execution is not a matter which, should be taken into consideration by this Court. There has been no illegality in the sentence and, therefore, on the present petition for special leave `to appeal, it is not for this Court to decide whether or not the sentence of death im posed on the petitioner should be commuted to one of trans portation for life in the existing circumstances We think, however, that the proper course for the petitioner now is to approach the executive authorities under section 401 or 402‑A of the Criminal Procedure Code, and we are confident that they will give their most careful consideration to the matter, as about two years have already elapsed since March 1949, when the sentence of death was originally pronounced, and as during this long period of suspense the petitioner must have undergone great mental suffering and anxiety. Nevertheless, as matters stand, the contentions urged by the learned counsel for the petitioner fail; the prayer for special leave to appeal must, therefore, be refused and the petition dismissed. A.H Petition dismissed.