P (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal from a life sentence. The four appellants, Khairdi Khan, Dilawar Khan, Jahandad and Sher Muhammad have been convicted and' sentenced for the murders of Sher Bahadur and Khan Bahadur. The case was at first tried by Khan Inayat Ullah Khan, Sessions Judge, Attock, who by his order dated 18th day 1949, acquitted the appellants. On revision, the acquittal was set aside by a learned judge of this Court by his order dated 2nd February 1950 and a re‑trial ordered. The present convictions and, sentences have been recorded by Mr. Ahmad Khan, successor of Khan Inayat Ullah Khan. Khairdi Khan and Dilawar Khan are brothers and Jahandad is their father‑in‑law. Sher Muhammad is Jahandad's son. The two murdered persons, Sher Bahadur and Khan Bahadur, were also brothers.' The pedigree‑table at page 48 of the paper book sets out the relationship of the appellants‑ not only with each other but also with the two murdered persons. Khan Bahadur and Sher Bahadur deceased were the descendants of one Feroz Khan from his first wife, Mst. Amir Jan. Khairdi Khan and Dilawar Khan are descendants of the same Feroz Khan, but from his second wife, Mst. Nur Begum. Jahandad and Sher Muhammad are near collaterals not only of Dilawar Khan and Khairdi Khan but also of the two deceased parsons. Both parties ordinarily resided in village Ghaurghushti, where they held land, but they occasionally moved to their hamlets (dhoks) near village Malakmala, about three miles from Ghaurghushti. During the days that the incident occurred the appellants and both the deceased persons were residing in their hamlets which are separated from each other by 15/20 karams. Sher Bahadur deceased purchased occupancy rights in some land for Rs. 300 from Akbar Khan on 22nd May 1947. The sale was sanctioned by a regular mutation on 27th September 1947. Khairdi Khan, Dilawar Khan and Jahandad appellants purchased proprietary rights in the same land from Ghulam Haidar for Rs. 1,400 on 29th May ,1947. This sale was given effect to by two mutations on 13th June 1948. On 27th September 1948, the three appellants, who had purchased proprietary rights in the land, brought a suit for possession by pre‑emption against Sher Bahadur in respect of the sale .of occupancy tenancy. This suit was pending when Sher Bahadur and Khan Babadur were murdered on 4th October 1948. A day before the murder, another incident took place. Some cattle belonging to Khairdi Khan trespassed into the Jowar field of Sher Bahadur, This trespass was the occasion of a quarrel between the four appellants on one side and Sher Bahadur deceased on the other. The parties were separated by Fordil Khan, according to whose evidence, Khairdi Khan left the place muttering threats. The prosecution case is that the two deceased persons left their dhok early in the morning to plough their land in Malakmala. At about rotiwela, their mother, Mst. Sahibji and Mst.Ismat, wife of Khan Bahadur deceased, brought their midday meals. They took their food and Mst. Sahibji and Mst. Ismat began to weed out a field. Just then the four appellants appeared on the scene armed with spears and, while Khairdi Khan and Dilawar Khan assaulted Sher Bahadur, Jahandad and Slier Muhammad fell upon Khan Bahadur. Sher Bahadur dropped wounded, while Khan Bahadur ran to the east in an injured condition. He was pursued for some distance by the appellants, who, giving up the pursuit returned and caused some more injuries to Sher Bahadur, killing him on the spot. Thereafter, they again followed Khan Bahadur, who took shelter in the dhok of Saeed Muhammad. According to Saeed Muhammad, who is a bed‑ridden sick man, Khan Bahadur cane to him badly wounded and with clothes drenched in blood. He said that the four appellants had finished his brother, and that he himself had been injured by Jahandad and Sher Muhammad appellants. Apprehending that the murders would track him, he asked Saeed Muhammad to give him shelter. Saeed Muhammad gave him asylum and shut him up in a room which was chained from inside by the wounded man. Shortly afterwards, the four appellants, came and demanded Saeed Muhammad to surrender their quarry. He refused, saying that he would not permit a murder to be committed at his own house and representing that the injured man would not survive even if he was not beaten any further. The appellants did not insist and left Saeed Muhammad's dhok. The injured man remained in the room till shortly before sunset, when four men from Malakmala came and took him away. Information of the occurrence was lodged by Mst. Sahibji at Police Station Hazro, six miles from village Ghaurghushti, at 6‑30 p.m. the same day. Khan Bahadur was brought to the police station in the evening, where his statement was recorded by Muhammad Ali Shah, Head Constable, at 10‑45 p.m. From the Police Station he was taken to the hospital where another statement of his was recorded at 11‑30 o'clock the same night after he was certified by the doctor to be in a fit condition to make a statement. He lived as an indoor patient in the hospital and ultimately died on 9th October 1948. The evidence against the appellants is both direct and circumstantial. The direct evidence consists of the statement: Mst. Sahibji (P. W. 18) and Hasham Khan (P. W. 19) and the deposition of Saeed Muhammad at the previous trial which was transferred to the present record because of the deponent's death before the trial commenced. The circumstantial evidence relates to motive, the production of a spear stained with human blood by Khairdi Khan appellant, the removal of a shirt from the person of Jahandad appellant at the time of his arrest and the two dying declaration by Khan Bahadur. Dealing with the evidence of the eye‑witnesses, I may say at once that I have real doubts about the presence of Hasham Khan at the time of the assault. He is a chance witness who claims to have come to the place of murder to borrow a plough from the two deceased persons. I do not hold that Hasham Khan is a false witness, but on a perusal of his evidence I get the impression that he might have volunteered to depose against the four appellants believing them to be the murders of his brother‑in‑law Sher Bahadur. The other two witnesses, however, I see no reason to doubt. Mst. Sahibji gave the first information report the same afternoon and the account that she then gave completely fits in with the other evidence and the circumstances. The dhoks from where she brought the food for the two deceased persons is at a distance of half a mile only and the medical evidence shows that Sher Bahadur had just taken his food when he was killed. Admittedly this man was killed in his own field, and, therefore, it is perfectly natural that some one should have brought his meals to the field where he was working. There is thus nothing unusual or surprising when Mst. Sahibji states that it was she and‑Khan Bahadur s wife Ismat who had brought the food from their dhok. Dr. Abdal Ghani, who performed the post‑mortem examination on the body of Sher Bahadur, states that the stomach of the de ceased contained about a pound of food and that digestion bad just started, which means that the deceased had taken his food just before he met his death. This circumstance, in my opinion, is a very valuable corroboration of Mst. Sahibji's claim in the first information report which was recorded before the result of the post‑mortem examination was received that she had taken the midday meals for her sons and that they had just taken the food when they were attacked. The other corroboration of her statement is to be found in the fact that in the first infor mation report she definitely stated that all the four assailants were armed with spears and nothing else, and the numerous injuries that were found by the doctor on the persons of both the deceased were all caused with pointed weapons. Mst. Sahibji could not have been definite about the nature of the weapons used, unless she had actually seen them being used. Sher Bahadur had ten injuries and Khan Bahadur six, all caused with pointed weapons. The number of the injuries tends to show that the deceased persons, both of whom were young men, must have been attacked by several persons. Saeed Muhammad's evidence is equally convincing. He is a complete stranger to the parties and has not the slightest motive in helping the prosecution or seeing the appellants walk to the gallows. His statement was recorded the same night, and, though he was subjected to a good deal of cross‑examina tion, no material self‑contradiction has been established against him. It is argued by the learned counsel for the appellants that this man is giving evidence under the influence of his landlord Muhammad Jan, who is the son of Abdullah Khan. The suggestions that Abdullah Khan had some litigation with his cousin, Abdur Rahim, in which Jahandad appellant appeared as a witness for Abdur Rahim. Abdullah Khan, who was examined as P. W. 17, did not admit this allegation and no evidence has been given whether Jahandad in fact gave evidence in favour of Abdul Rahim and what 'was the nature of the litigation or the date and nature of the evidence of Jahandad. But, assuming that Jahandad did give some evidence against Abdullah Khan, it cannot be inferred from that fact alone that Saeed Muhammad who is merely a tenant of Abdullah Khan's son has been pre vailed upon to give false evidence not only against Jahandad, but also against the other three appellants on a capital charge. It is argued by learned counsel that, if the account given by Saeed Muhammad had been true, namely, that the four appellants ran up to his hamlet to finish Khan Bahadur, Khan Bahadur would certainly have been killed and would not have been alive to make the two dying declarations that he subsequently made. Saeed Muhammad states that, though he is a decrepit ailing old man, he would not permit a murder to be committed in his house ; and there are other reasons why the four assailants should not have carried out their intention. They might have been satisfied by, Saeed Muhammad's statement that the man, who had shut himself in the room, would die there because of the injuries received or that might have been deterred by the consideration that, if they attempted to break open the door, some other people might come and capture them or be in a position subsequently to depose against them. On perusing Saeed Muhammad's evidence and hearing learned counsel's criticism against it, I feel satisfied that he has given a true account of what he in fact saw. The third important piece of evidence against the appellants are the two dying declarations which were made by Khan Bahadur on the evening of the occurrence. Both these statements were recorded by Muhammad Ali Shah, Head Constable (P. W. 21), with an interval of hardly an hour between the two. The second statement was recorded at the hospital and after the declarant was certified to be in a fit condition to make an intelligent statement. It was taken down in the presence of Ghulam Rasul and Allah Dad P. Ws. who have both been examined in the case and appear to be quite independent wit nesses. I cannot imagine that the Head Constable should have fabricated a document at the hospital where the doctor and so many other persons must have been present. Our attention has been drawn to the remarkable similarity in the substance of the two statements, but since the maker and the recorder of the statements were the same in both cases, and one was recorded after the other only an hour or so afterwards, the coincidence between the two is quite natural: Neither statement appears to be a copy of the other, because there are differences of expression between the two. It may quite be that Muhammad Ali Shah had the earlier statement with him when he wrote out the second statement at the hospital and, having heard the declarant give the same account of the transaction as he had done a little before, the writer might have use the earlier statement in writing out the subsequent one. The real point, however, is whether the statement embodied in these two documents was in fact made by the declarant. As to this, I have not the slightest doubt. The declarations give exactly the same account of the transaction as has been by Mst. Sahibji both in her statement in Court and in her statement in the first information report and by Saeed Muhammad in his statement at the earlier trial. This material taken together is quite sufficient for the conviction of all the four appellants. I do not attach much importance to the production of a spear by Khairdi Khan or the presence of human blood on the shirt of Jahandad, not because I reject or suspect the evidence about this part of the case but because I consider the other evidence to be a solid foundation for the conviction. For these reasons I would uphold the convictions and dismiss the appeal. On Mst. Sahibji's petition for revision, a notice was issued to the appellants to show cause why their sentences should not be enhanced. The reasons given by the learned Sessions judge for not awarding the usual sentence of death are that Jahandad is an old man of 60, that Sher Muhammad is a young man of 20 who might have acted under the influence of his elders and that it is not clear which of the appellants inflicted the fatal injuries. The learned judge is under the impression that, to put it in his own words, "in such a case of joint responsibility, all the accused are to be treated alike in the matter of sentence and that they are all entitled to the benefit of the lesser penalty." While I can understand that because of his youth and of the possibility of his having acted under the influence of his father and elder cousins, the normal sentence could rightly be withheld from Sher Muhammad, I am unable to accept as sound the other reasons given by the learned judge for the alternative sentences. The mere fact that a man who has taken part in a premeditated murder is an old man of 60 is no ground for taking a lenient view and we have been repeatedly telling the Courts of Sessions for many years past that where the murder is premeditated and was committed with the intention to kill, all acting with that intention must be sentenced to death unless there be some other extenuating circumstances. It is a sad state of affairs if Sessions Judges do not know this, and sadder still if knowing this they indulge in disingenuous casuistry while stating the reasons for their declining to pass the capital sentence, If the reasons given by the learned Sessions judge were to be accepted, it would mean that where a gang of assassins organise themselves into a firing squad and riddle their victim with bullets, none would get the capital sentence if the number of bullets striking the deceased is one less than the number of gunmen. And the same would be the result if any one of the several bullets fails to strike the heart or any other vital organ. In another case which has been recently disposed of by a Bench of which I was a 'member, I was astounded to find an experienced Sessions judge refusing capital punishment for a determined and premeditated murder and in all seriousness stating for his view the reason that the convicted accused was a families man and had to look after his children, a reason which taken to its logical conclusions; would do away with all punishment where the criminal, whatever his offence, is a man with a family. This amounts to taking the humaneness with which law views an accused person to a ridiculous extent and the doctrine of the humanity of criminal law very much beyond its proper limits. On conviction an accused person has to be treated as a criminal and though even then mercy may season justice .and punishment must not be determined by any vindictive consideration, leniency in the matter of sentence where it is not deserved is a serious dereliction of duty on the part of the judge to whom the State has entrusted the duty of doing justice between man and man, and a judge who is mentally incapable of awarding .capital punishment where law and facts demand it is a complete misfit in judicial machinery. Being placed in that system he has no right to play the part of a conscientious objector. Doubtless Judges presiding over Courts of Sessions under stand that primary responsibility for the death sentence rests with this Court, as no sentence of death can be carried out until it is confirmed by the High Court. And when any such sentence comes up for consideration, the question whether the man should live or die receives our most anxious consideration. Even after the confirmation, our verdict is examined by the Provincial Government who have under the law full authority to review all cases of hard ship and to commute the sentence without stating any reasons, and I remember several instances in which death sentences were commuted by the Provincial Government where we as judges had no option in the matter but placed in the position of the Provincial Government we would have taken the same view as Government actually did in those cases. Judges of Courts of Session should, therefore, disabuse their mind of the notion that they axe the final arbiters of the life of the man whom they convict and sentence to death or that a man will die simply be cause they condemn him to death. Though the law prescribes an alternative sentence on conviction of murder, judges have been consistently emphasising the position that the normal sentence in such cases is death unless there be any extenuating circumstances. The question what these circum stances may be has also been touched upon in several decisions though obviously no general rule has been or can ever be enunciated to embrace all such exceptional cases. On most of the cases that come up before them, Sessions judges have the views of this Court one way or the other, which it is their obvious duty to follow, and they should realize that a deliberate refusal to follow that view will be taken by this Court to amount, to a refusal to administer the law. In the present case two men were killed and both the murders were premeditated. The number of the accused is less than five, which means that the liability to be convicted of murder can come in only if a common intention to kill is found. That such intention did exist in the present case is plain on the facts. The case was, therefore, governed by this Court's decision in Gurdev Singh v. Emperor (A.I.R. 1948 Lah. 58), which is appended to this judgment for the future guidance of lower Courts, and‑ the normal sentence of death could not be withheld on any well recognised ground. The question whether a man who is not expected to 'live many years should or should not hang, or whether the sentence of death on several men should or should not be executed is a matter for the Government to consider. As a Judge I am quite clear in my mind that no ground for a lenient view exists in this case except in regard to Sher Muhammad. I would, therefore, accept the petition for revision and order Khairdi Khan, Dilawar Khan and Jahandad Khan to be hanged by the neck until each of them be 'dead. S. A. RAHMAN, J.‑I agree. A I Appeal dismissed. Sentence enhanced on revision.