P L D 1956 Sind 73 (PLP)

Raymond for the Crown. MUHAMMAD BACHAL, J.‑The appellant Sher Ali was charged in connection with the murder of Rashid Zuberi and robbery of his property before our learned brother Lari, J. Sitting with a Jury. A unanimous verdict of guilty was brought in by the Jury against Sher Ali under section 302 P. P. C. He was convicted and sentenced to transportation for life. The question of enhancement of the sentence is also before us for consideration. Under section 423 (2) Criminal P. C. an appellate Court shall not alter or reverse the verdict of the Jury unless such verdict is erroneous owing to a misdirection by the learned Judge or the misunderstanding on the part of the Jury of the law as laid down by him. In Abdul Rahim v. K. E. (27 Lah. 119.), their Lordships of the Privy Council observed :‑ "But a misdirection having been found to have occurred it is not necessarily a ground for interference. It may have been of a more or less trivial character. But if it has led to an erroneous verdict being returned or to a failure of justice the statute plainly indicates that a case for interference has arisen." It is thus necessary that there should be a serious misdirection in order to find whether the accused should or should not have been convicted. The first mis‑direction urged is that the learned judge omitted to point out to the jury that nothing was secured from the possession of the accused. This ground is contained in paragraph (4) of the petition of appeal. But the shalwar shirt and knife of the accused which bore human bloodstains were found from the trunk at the pointing out of the accused. We think therefore that there is no reason to suppose that any confusion was caused in the mind of the jury and there was no misdirection. The second misdirection urged is that the learned Judge observed that there are possibilities of Hyder Ali having some thing to do with the murder. This ground is contained in paragraph‑(5) of the petition of appeal. The passage is as follows:‑ " Lastly you have got the evidence as to confession made by Haider Ali. Haider Ali's statement is before you. He says that the accused told him about his intention to rob his master, and afterwards he had told him that he had killed his master. Gentlemen, such a witness is an accomplice. It may be that he is telling the truth but his statement cannot be accepted unless he is corroborated. He is corroborated only in one matter, i.e. the trunk and bedding were first taken to the laundry and then taken to the quarter of Roshan." This shows that the learned judge treated Hyder Ali as an accomplice in the sense that he knew the intention of the accused to murder his master and informed him about it after the murder. He was not a participant in the crime. The result therefore is that there was no misdirection and it cannot be said that the verdict is erroneous owing to the learned Judge's misdirection. In murder cases, the High Court would not ordinarily interfere and enhance .the sentence, unless it thinks that the sentence of death is the only sentence that could be passed. The mere fact that the High Court, had it been trying the case might have imposed the capital sentence is not a sufficient reason for enhancement, where the evidence is totally circum stantial, some Judges have been averse to confirming the sentence of death. We, however, consider that there is no rule of law that where the evidence is wholly circumstantial, death sentence should not be awarded. In Muniandi v. Emperor (A I R 1915 Mad. 542) where the evidence was entirely circumstantial, and the accused was a young man of nineteen years, the sentence of transportation for life awarded by the Sessions judge was not enhanced to one of death. The age of the accused in this case is twenty years. Youth should be taken into consideration with the other facts of the case. Only one blow with knife was given and Government have not filed an appeal. The learned judge while passing the sentence observed " The prosecution case rests entirely on circumstantial evidence and there are indications that possibly Hyder Ali had also something to do with the offence." The reasons given are not sound. But in Dalip Singh and others v. The State of Punjab (A I R 1953 S C 364) the Supreme Court observed "The only ground on which the appellate Court will enhance sentence is where no reasons are given and none can be inferred from the circumstances of the case or where the facts are so gross that‑ no normal judicial mind would have awarded the lesser penalty." The result is that the appeal is dismissed and the notice issued is discharged. A. H. Appeal dismissed.