1969 PLP 575 (SCMR)

Khan Bahadur deceased was a first cousin to Hukmat Khan and Muhammad Ashraf. The parties owned some land on Malkanwala well in village Malhu. One Rehmat Ullah also had some land on that well, which some days before the occurrence be had agreed to sell to Khan Bahadur. This was resented by Sberbaz because he himself was anxious to have the land, though his own father had earlier declined to purchase it. A little after mid‑day on 3rd September 1954, Sherbaz was abusing Khan Bahadur in the latter's absence. Wali Bahadur objected to this, with the result that both of them began to abuse each other loudly. Hukmat Khan and Muhammad Ashraf who were near by on the well also joined Sherbaz and since Wali Bahadur went on returning the abuse, all three of them rushed to their kotha and returned armed, Hukmat Khan with a sword, Muhammad Ashraf with a spear and Sherbaz with a chhuri. They at once attacked Wali Muhammad, the first blow having been struck by Muhammad Ashraf with a spear. When Khan Bahadur, who was also on the well saw his son being attacked, he picked up a pitch‑fork and struck Muhammad Ashraf and Sherbaz. Hukmat Khan then brought his sword into play and repeatedly struck Khan Bahadur who died the same day in consequence of the injuries. Hukmat Khan and Muhammad Ashraf appellants set up a case of self‑defence, but no evidence in support of it was produced. Sherbaz merely pleaded alibi. The Sessions Judge and the High Court both rejected the defence. Leave to appeal in this case was granted in order to consider the question whether, in the circumstances found by the High Court, the Fourth Exception to section 300 of the Pakistan Penal Code was applicable. The findings of the High Court which were based on evidence were (1) that Sherbaz was the first to abuse Wali Bahadur ; (2) that when Wali Bahadur returned the abuse, the appellants brought deadly weapons from their kotha; (3) that Muhammad Ashraf was the first to strike Wali Bahadur; (4) that seeing his son being attacked Khan Bahadur picked up a pitch‑fork with which he struck Muhammad Ashraf and Sherbaz and that thereafter Hukmat Khan caused to Khan Bahadur 21 injuries with his sword. On these findings, the learned Judges thought that the Fourth Exception was not applicable because Hukmat Khan took an undue advantage of his weapon and acted cruelly in causing so many injuries to Hukmat Khan. The medical evidence shows that Khan Bahadur, apart from a stab wound, had 23 cut wounds on his body. His scalp and skull had been cut in 6 places and the membrane and the brain in 2 places. Now with the findings that all these injuries were caused by Hukmat Khan with a sword there can be no question of the application of the Fourth Exception because the victim after receiving any one of the more serious injuries must have falled on the ground and could not have been' able to defend himself or to retaliate and if Hukmat Khan went on repeatedly striking a fallen man on the head with a sword it must be held not only that he took undue advantage of the Victim's condition but also that he acted in a cruel manner. The High Court were, therefore, right in the view they took of the Exception and there is no occasion for our interference with the conviction. Mr. Manzur Qadir appealed to us to interfere with the sentence of Hukmat Khan and to reduce it to the lesser sentence for murder on the ground that there was no previous enmity between the parties and the whole transaction which ended in the death of Khan Bahadur was sudden and unanticipated. Whatever our own views as to sentence may be, we have consistently followed the practice of not interfering with the sentence except on the ground of its illegality or gross impropriety. It is undoubtedly true in this case that such premeditation as usually calls for a sentence of death was absent. Despite this the learned Judges have confirmed the capital sentence on the ground that Hukmat Khan acted in a very cruel manner. We cannot say that this was a good ground for the confirmation of the maximum sentence and unless we say that there is no case for our interference with the discretion of the High Court. Obviously we cannot lay down the proposition that if a murder is committed without pre‑meditation and in the course of a sudden fight, however cruel the killing and however undue the advantage that the murderer takes of his position, the sentence of death should not be passed. The proper course for the condemned appellant is to apply for the commutation of his sentence to the Government which has un‑restricted discretion to act where this Court will not. The appeal is dismissed. Appeal dismissed.