P L D 1960 Supreme Court (Pak (PLP)

The Supreme Court reduced the sentence of death to one of transportation for life. Gurdev Singh and others v. Emperor A I R 1948 Lah. 58 ref. (but general observations, held, obiter). Muhammad Ismail Bhatti, Advocate Supreme Court for Appellant. Mushtaq Hussain, Additional Advocate‑General, West Pakistan (R. A. Jeremy, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondent, Date of hearing : 12th October 1960. CORNELIUS, C. J.‑The appellant Abdur Rahim is an old man of 60, who was employed as a peon at the General Headquarters of the Pakistan Army in Rawalpindi‑ until the date when he committed the crime of killing one Ghulam Hussain, a young boy aged 17 years by means of knife blows. The incident occurred at about 8 p.m. in the month of June 1958, in the peons' quarters in Islamabad, Rawalpindi. The deceased Ghulam Hussain lived with his father Nur Khan (P. W. 9) in quarter No. 11/6 while Abdur Rahim lived in quarter No. 11/10, quite close‑by. Nur Khan was an eye‑witness of the occurrence, but he being the deceased's father it is probably safer to ascertain the details of what actually happened from the evidence of the other eye‑witness, namely, Muhammad Nasir (P. W. 10) whose quarter is exactly opposite that of Abdur Rahim and is numbered 11/8 Muhammad Nasir's statement shows that the accused took objection to certain children from the neighbouring quarters playing directly in front of his own quarter, and in order to send them away, he "threatened the son of Amjad", who was one of the children playing there. The deceased Ghulam Hussain came up and objected to Abdur Fahim's behaviour, asking "why he was unnecessarily annoyed with the children". Thereupon Abdur Rahim started abusing Ghulam Hussain, and the result was "that they exchanged hot words with each other". At this time the deceased was standing directly in front of the door of the accused's quarter. The accused suddenly produced a knife and gave him two blows on his chest and another blow on the back as he bent down. Ghulam Hussain fell down unconscious and was later carried to a Police Post, but Abdur Rahim decamped from his quarter and escaped to Karachi where he was arrested on the 8th July 1958. At the trial, he pleaded innocence, and that he was away at Karachi on the date of the occurrence having taken leave from his office on the 8th June 1958, i e. 3 days before the occurrence. In defence, however, he produced no evidence except his son‑in‑law, Fayyaz Ali, who admitted that Abdur Rahim had come to Karachi only two or three days before his arrest. In view of this evidence, there could have been no doubt of the accused person being responsible for the death of Ghulam Hussain and it was so held by the Sessions Judge who tried the case, as well as by the High Court. Leave to appeal to this Court was granted only on the point of sentence, it being clearly stated that as his conviction was based on direct and circumstantial evidence, there was no question of interfering with it. As to the sentence, it was observed that "the murder having been committed in the course of a sudden quarrel and not being a premeditated act, we would like to consider the question whether confirmation of the death sentence contravened any recognised principle guiding the High Court's discretion to confirm." This Court has on numerous occasions declared that it will not interfere with a legal sentence, upon the view that the apportionment of the right sentence for a proved offence, is a matter which should be left for final determination by the Courts of trial and first appeal. These Courts being much closer to the actual occurrence than this Court can possibly be, in a far better position to appreciate the full circumstances, which must be borne in mind in appor tioning the correct sentence. But in exceptional cases, this Court has interfered with sentences, when it has found that important circumstances having a strong bearing upon the quantum of punishment, had been either wrongly ascertained or not correctly estimated by the High Court. Reference may be made in this connection to the recent case of Sher Hassan (P L D 1959 S C (Pak.) 480). There, the sentence of the appellant Sher Hassan had been enhanced by the High Court from transportation for life to death, and in restoring the sentence awarded by the trial Court, it was remarked by‑ this Court "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 possi bility 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 transport ation which had been awarded to Sher Hassan by the trial Court was not inappropriate. The Sessions Judge did not apparently think it necessary to consider the possibility that a sentence of transportation might be appropriate in the case, but holding that the guilt of the accused had been established. he sentenced Abdur Rahim to death. In the High Court, the lesser penalty was asked for by reason of the advanced age of the appellant. Rejecting this plea, the learned Judges in the High Court observed "Even if his age had been established to be 80 years, as claimed by the appellant, instead of 55, the estimate of Ahmad Khan (P. W. 3), we would not have considered advanced age to be a sufficient ground for not imposing the maximum and normal punishment for the offence of murder." Before us, Mr. Bhatti has emphasised the points mentioned in the admitting order viz., that there had been a sudden quarrel and the accused had acted without premeditation, and has cited in support a judgment of Muhammad Munir, J. (as he then was) which is published as Gurdev Singh and others v. Emperor (A I R 1948 Lah. 58). The judg ment enumerates certain types of cases of murder in which the lesser penalty of transportation is ordinarily thought to be appropriate, as well as a number of cases m which the death sentence is ordinarily imposed. The case there was not of a sudden quarrel or absence of premeditation, and therefore the general observations contained in the judgment must be . held to be obiter, and while their value by way of guidance cannot be denied, it is at the same time important to note that the observa tions as a whole cannot be treated as laying down principles of a binding nature governing the discretion exercisable by the High Court to confirm or not to confirm a death sentence. There can be cases of aggravated type where a murder is committed in the course of a sudden quarrel and without premeditation, in which the death penalty would be fully justified. But in the present case what strikes us as important is that on the facts Ghulam Hussain, deceased,, a young boy of 17, had clearly interferred in a matter which was none of his business. In the oriental way of life, the authority of age is a tangible factor in social affairs, and therefore, if Abdur Rahim, an old man about 60 years of age, was rebuking some small children for being noisy in their play and ordering them to go away, he was not doing anything which could reasonably invite objection, certainly not from a boy 'of

17. Ghulam Hussain however interfered, and took it upon himself to walk up to the door of Abdur Rahim's quarter and there to engage in an equal exchange of abuses with a person who was old enough to be his father or even grandfather. There is a degree of provocation to the older person appearing in such behaviour by the young boy which would naturally lead to loss of temper and even perhaps, a resort to violence by way of chastisement. It is not known what the actual words used by the deceased were. Some words of abuse would irritate the old man more than others, but however that may be, it appears to us that the circum stances of the case would justify an inference, that there was in the conduct of the deceased towards the accused, a measure of provocation leading naturally to an impulse of violence, of which the murder by stabbing was the result. If these circumstances had been placed before the learned Judges of the High Court, it is reasonably possible that they may have considered the question of the accused's age, in relation to the sentence, in a more favourable light, and they may have seen in the fact of provocation a ground for refusing to confirm the death sentence, and instead imposing the lesser penalty. We consider that having regard to all the circumstances, the proper order to be made in the case is to allow the appeal to the extent of reducing the sentence to transportation for life, and we direct accordingly. A. H. Sentence reduced.