P L D 1965 Supreme Court 363 (PLP)

CORNELIUS, C. J.‑Three persons Ali Akbar and his friends Inayat and Bashir were convicted at trial for the joint act of murder of one Habibullah, and each of them was sentenced to death. The evidence clearly shows that the crime was unprovoked. The deceased was sitting in an enclosure at his well in the early afternoon, when he was attacked by the three accused persons, each armed with two tokas and a hatchet and was fatally injured. The injuries on his person numbered no less than 11 incised wounds and four abrasions. Six of the wounds were deep into the skull so that determined intention to cause the death of Habibullah is clear. His fault in the eyes of the assailants was that his brother Ghulam Rasul had abducted Mst. Amanat Bibi, sister of the principal accused Ali Akbar some eight years earlier. Thereafter, Habibullah had paid Rs. 1,500 to the father of the girl and settled the matter. Ali Akbar was then a young boy and in the words of Ghulam Rasul "did not speak much". There was an appeal in the High Court where the learned Judges found the evidence of Ghulam Rasul as an eye‑witness and of two disinterested persons Muhammad Saleh and Hamidullah to be fully reliable, and therefore they upheld the conviction. The question of the appropriate sentence was raised, by reference to the fact that on the record, the ages of the three accused persons had been entered in the committing Court as well as in the Sessions Court, as Ali Akbar 18 years, Inayat 17 years and Bashir 18 years. The learned Judges mentioned that Ali Akbar was a brother of the abducted woman and that the other two appellants were his friends, and observed as follows:‑ "in view of their ages, we consider that the maximum penalty provided by law is not called for in this case." They accordingly reduced the sentences to transportation for life. Ghulam Rasul moved this Court by petition for special leave to appeal against the reduction of the sentences of the accused persons, and at the hearing, counsel on his behalf entered two copies of birth certificates showing that Ali Akbar was born on the 2nd July 1937 and Inayat on the 13th March 1937. Leave to appeal was granted to Ghulam Rasul to examine the question of the ages of the, respondents and whether it was proper to reduce the sentences on he sole ground of age. Later, a petition for grant of special leave to appeal against the judgment of the High A Court was presented on behalf of the convicted persons and in view of the fact that leave had already been granted to consider whether their sentences should not be enhanced, leave was granted to them as well, to enable them to challenge the correctness of their convictions, this being a generally accepted principle. On the point of age, there is no further evidence before us beyond the two copies of birth certificates mentioned above. Each of these certificates is a record of a report made within a short time of the birth of the child, in the case of Ali Akbar there being a delay of only 9 days, and in the other case a delay of about 3 weeks. It is certainly unusual to find in such reports, that the name of the infant is also entered, and if any reliance is to be placed upon these documents as relating to these particular accused persons, and not to any of their elder brothers, this must be weighed against the evident fact that these accused persons as well as Bashir actually appeared before the committing Court, probably on more than one occasion, and that they were produced before the Sessions Judge and questioned at the commencement of the case and again at the conclusion of the trial, which lasted for two days. Their ages are expressly mentioned in the description given by each of these Courts, and the presumption must be that by appearance, the ages which they gave were approximately correct. If Ali Akbar was born in July 1937, then in July of 1962, when he appeared before the Sessions Judge, his age would be 25 years, and there is marked difference of appearance between a young man of 18 and a young man of

25. The same is true of Inayat. No proof of any kind has been led as regards the age of the third accused person Bashir, that it was in excess of the figure 18 years mentioned by both the Courts. Accordingly, in our view, nothing is placed before the Court which could incline it to doubt the correctness of the ages of the three accused persons as recorded by the committing Magistrate and by the Sessions Judge. It is then urged that the age of 18 or 17 is not in a case of such a serious crime to be regarded as so immature as to allow anything in the nature of diminished responsibility in favour of a culprit. Reference is also made to the savagery of the attack, and that it was deliberate and unprovoked. We note at the same time that the crime was one committed out of a sense of honour which is jealously nursed among the rural classes. A great many cases come before the Courts in which an insult to honour is avenged after a considerable lapse of time, because it is felt too deeply to be ever forgotten, and it is a matter of tradition that in some form it should be avenged if the person insulted is not to be deemed to be devoid of self respect. Here, the case seems to be that the boy Ali Akbar felt the disgrace to his family caused by the abduction of his sister, from the very start, and nursed his grievance, as is customary in the class to which he belongs, waiting for an opportunity when he would have the strength and resource to avenge it. This is not to say that the law condones such offences, but at the same time in awarding sentences, for actions of excess performed by members of a community, it would be harsh indeed to brush aside all considerations of the strength of the sentiment prevailing in that community to which such excess is to be ascribed. W.C. note also that the sentence of death in this case was awarded on. the 28th July 1962, and it was replaced by a sentence of transportation for life on the 15th July 1963, that is more than a year and a half ago, and in these circumstances we find it difficult to hold that there has been any miscarriage of justice, viewing its dispensation in the present case in the wider prospective, by the imposition of the lesser sentence to each of the accused persons for the crime found against them in appeal by the High Court. As to the question of the correctness of the conviction, we are fully satisfied after reference to the record that the evidenc46 of the eye‑witnesses in this case is unimpeachable. In addition, there is evidence of the recovery of blood‑stained clothes from. the persons of Ali Akbar accused when he was arrested on the 20th December 1961, and of the recovery of a blood‑stained hatche from the possession of Inayat who was also arrested on the same day. A toka was recovered from the possession of Ali Akbar and another from the house of Bashir, but. these were found note to bear any blood‑stains. The Serologist was unable to analyst the stains on the clothes and hatchet because by the time these articles reached him the blood had disintegrated. However, so far as they go these recoveries serve to support the direct evidence which we find was accepted by the Courts below, and as to which counsel for the accused has not been able to advance any reason why it should not be believed. As a result we dismiss both these appeals. A. H. Appeals dismissed.