1969 P Cr (PLP)

J. H. Rizvi, Advocate‑General West Pakistan (Iftikharul Haq Khan, Advocate Supreme Court with him) instructed by Sh. Ijaz Ali, Attorney for the State. Date of hearing : 7th October 1959. CORNELIUS, J.‑Special leave was granted to the appellant Sarwar, to appeal against the sentence of death awarded to him by the high Court of West Pakistan, by way of enhancement of the sentence of transportation for life imposed by the Sessions Judge on conviction for murder, "to consider the question whether in the circumstances of the case the sentence of transportation was rightly enhanced to that of death". The facts of the case are simple. The deceased was one Fazal Dad who was suspected by Sarwar of having illicit con nection with his wife. The prosecution case was that Sarwar and his cousin Walayat attacked Fazal Dad when he was work ing in a maize field. Fazal Dad ran for his life and was chased by Sarwar who came up with him and stabbed him in the back five times with a knife. Walayat was acquitted at the trial on the ground of inconsistencies in the prosecution evidence relating to him. Sarwar had raised the plea of self‑defence, and this plea as well as a plea taken afterwards that the case was one of sudden fight were rejected by the Sessions Judge who held Sarwar to be guilty of murder, and proceeded thereafter to observe as follows :‑ "As regards the sentence, I think that although it was Sarwar, who came into the field to pick up the quarrel with the deceased there are circumstances under the force of which it appears to be necessary to spare his life. It will be remembered that his first intention appeared to have been to give a good threshing to the deceased, and that it was only when the deceased tried to runaway and Sarwar thought of the danger of losing him from his grip altogether that he fished out a knife. Even after doing so he had not been exceptionally cruel and but for the blow mentioned above the deceased may never have died at all for the said attack. I, therefore, sentence Sarwar accused to transportation for life." A mere reading of this paragraph is sufficient to expose its deficiencies in the way of reason. The belief of the Sessions Judge that the original intention was merely to give a "good threshing" to the deceased is based on no ground whatsoever. Earlier in the judgment the Sessions Judge had remarked that Sarwar did not take out his knife "right up to the time when the deceased freed himself from Walayat" and again that the deceased was "caught by him after running a considerable distance". This circumstance arising out of the evidence was thought by the Sessions Judge to create a doubt as to whether Walayat was "rally present on the spot". He noted that Sarwar gave no indication of any desire to use serious violence towards Fazal Dad until the latter ran from the field. The Sessions Judge found it very "hard to believe that the two men had started from their house with the express intention of killing an enemy and yet they behaved in the said manner". It seems to us to be entirely impossible to draw from the facts thus stated any conclusion that the intention was only to give Fazal Dad a beating. For that purpose, sticks such as are commonly carried by villagers would have been sufficient weapons. The fact that a knife was used, and that it was concealed until the last moment furnishes a strong indication of intention to kill by way of punishment for suspected illicit intimacy with Sarwar's wife. The second reason given by the Sessions Judge, namely, that Sarwar only pulled out his knife then the deceased had tried to run away and "Sarwar thought of the danger of losing him from his grip altogether", is even less acceptable, in mitigation of the offence, which remained murder, whatever the stage at which the intention to kill, which was eventually carried out, was formed. To say that because only one of the five knife blows aimed at the back of the victim caused a fatal injury, the assailant's action was not "exceptionally cruel" is plainly ridiculous. If these matters had been discussed in the judgment of the High Court, it is very probable that leave to appeal would have been refused in this case. When the very serious step is taken by the High Court of enhancing a sentence, particularly when the a sentence imposed by the High Court is one of death, it is reason able to require that the grounds upon which the High Court bases its action, overruling the action of the trial Court, should be formulated and stated with clarity, with direct reference to the grounds put forward by the trial Court for awarding a lesser sentence. In the judgment of the High Court, the question of sentence is dealt with in the following brief passage :‑ "As regards sentence we consider that the circumstances indicate that the crime was premeditated. The fact that only one fatal wound was inflicted is not an extenuating circum stance. The circumstance that the appellant considered the deceased to be his wife's paramour is not by itself a good reason for the infliction of the lesser penalty to hold otherwise would encourage murder by way of revenge which is much too common in this part of the country. We, therefore, dismiss the appeal. We maintain the convic tion of the appellant Sarwar under section 302, P. P. C. and enhancing the sentence from transportation for life direct that he be hanged by the neck till he be dead." On the view which we take of the evidence, we consider that the conclusion of the High Court that the crime was premeditated and that it is not mitigated by the circumstance that only one fatal wound was caused, is perfectly correct. The trial Court had not considered it to be a ground of mitigation that Sarwar had acted in defence of his wife's honour, and the reference in the High Court judgment on this point is hardly helpful in a relevant sense. Had the judgment of the High Court made it clear why the learned Judges could not accept the trial Court's grounds for awarding the lesser sentence, a great deal of the time of this Court and all the trouble taken in the admission and preparation of the appeal would certainly have been saved. The case calls for no interference by this Court and we accordingly dismiss this appeal. Appeal dismissed.