P L D 1966 (W (PLP)

FAIZULLAH KHAN, J.‑This Full Bench has been constituted to answer the following two questions: (1) Whether mere youth of an accused is by itself a sufficient reason for not inflicting the major penalty in the case of a deliberate murder? (2) Whether in the instant case there are any mitigating circumstances which would command themselves for not exacting the capital sentence?

2. The question propounded for reference arise on a private revision petition filed by Sheikh Hassan, praying that the sentence of transportation for life awarded to Bashir Ahmad, son of Ikram, Afghan of Charsadda aged between 16‑18 (at the time of occurrence), for the murder of his son, Ghulam Habib, be enhanced to capital sentence.

3. The facts so far as they are material for the decision of the questions formulated for reference are briefly as follows: On the night of 29th January 1964, Ghulam Habib deceased, Bashir Ahmad respondent and Shakir were present as usual at the milk shop of Khaista Gul (P. W. 5). Ghulam Habib told Shakir (discharged accused) not to associate with Bashir Ahmad respondent in that he (Shakir) on the expiry of his leave would join his unit, but one Yaqub Khan would not allow Bashir Ahmad to associate with him. Bashir Ahmad respondent resented the insinuation and in the altercation which ensued Bashir Ahmad had retorted that Ghulam Habib (deceased) had no business whether Yaqub Khan would keep him with him or not. . On the following day, i.e., 30th January 1964, at late khuftan prayers time, Tajul Maluk were (P. W. 6), Fazli Karim (P. W. 7), Shakir and Bashir Ahmad respondent armed sitting at the shop of Khaista Gul (P. W. 5). Bashir Ahmad was armed with a D. B. licensed shot‑gun of the father of Shakir. After khuftan prayers time, Ghulam Habib deceased was proceeding to the shop, of Khaista Gul (P. W. 5). As soon as he reached in front of .the shop, the respondent without any preliminaries got up and fired a shot at Ghulam Habib deceased with the D. B. shot‑gun hitting Ghulam Habib in the face. Ghulam Habib dropped dead to the ground. Khaista Gul (P. W. 5), Tajul Malook (P. W. 6) and Fazli Karim (P. W. 7) appeared as eye‑witnesses in the case and believing their testimony the learned Additional Sessions Judge convicted the accused under section 302, P. P. C.

4. On 5th February 1964, Mr. Shafat Hussain (P. W. 1) examined Bashir Ahmad (respondent) for his age, and according to his report (Exh: P. N/1) the accused was between 16 and 18 years of age. The respondent also produced a school leaving certificate, on the basis of which his age on the day of occurrence worked out to be 15 years, 6 months and 26 days.

5. The learned Additional Sessions Judge in para. 29 of the judgment thought that since the school leaving certificate was more beneficial to the accused he would accept that age as against the report of the Radiologist. The finding of the learned Additional Sessions Judge in giving preference to the school leaving certificate over the report of the Radiologist is clearly erroneous in that it is well settled proposition that the best evidence is the X‑Ray test. We, therefore, accept the Radiologist report and take the accused to be 16 years of age, which is more beneficial to him.

6. Bashir Ahmad respondent has not preferred an appeal against his conviction and sentence, but since he has been issued notice to show cause why the sentence should not be enhanced, he is entitled to argue that his conviction was not well founded, Khan Abdul Latif Khan, learned counsel for the respondent, how ever, with his usual fairness, conceded that on the evidence produced in the case he would not assail the conviction of the respondent. He, however, strenuously argued that besides the tender age of the accused there were other mitigating circumstances which entitled the respondent to lesser penalty. The mitigating circumstances were: (1) That the respondent had been smarting under the insinuation of being called a keep of Yaqub Khan as also that of Shakir, discharged accused; (2) that obviously the respondent had been acting under the influence of Shakir so much so that at the time of offence he had armed himself with the licensed D. B. Shot‑Gun of the father of Shakir, and (3) that in view of the rule enunciated by the Supreme Court in Ghulam Hussain v. Zainullah and State (PL D 1961 S C 230), the sentence on a private petition should not be enhanced in view of the fact that the occurrence had taken place on 30‑1‑1964 and the further fact that the respondent was given full expectation of his life by the Additional Sessions Judge in awarding the life sentence.

7. We now address ourselves to the first question whether mere youth of an accused by itself is a sufficient reason for not inflicting the normal penalty of death in the case of a deliberate murder. It is indeed gravely disquieting and sad to note that of late most of the Sessions Judges under the jurisdiction of this Bench have shown marked reluctance in awarding the capital sentence and sadder still that they labour hard to spell out some mitigating circumstances so as to refrain from awarding death penalty and having failed to find any they invent one in justification for giving light sentence. This attitude of the Sessions. Judge; in our view, in the words of Muhammad Munir, C. J. "is a serious dereliction of duty and a Judge who is mentally incapable of awarding capital punishment where law and facts demand it is a complete misfit in judicial machinery".

8. We had the advantage of full argument on the subject and on a careful review of the case‑law on the point, we are clearly of the view that it is almost well settled that mere youth by itself would not entitle the accused on the charge of a deliberate murder to the lesser penalty, and that, at any rate, a person aged 16 years who commits a deliberate act of murder must be assumed to act with full responsibility unless it is shown that he is mentally retarded, or that he had acted under the influence of somebody. It will be convenient here to read section 83 of the Pakistan Penal Code, which is as under: "

83. Nothing is an offence which is done by a child above seven years of age and under twelve, who has got attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."

9. It will be plain from reading the language of the section reproduced above that where the accused is above seven years of age and under twelve, "sufficient maturity of understanding" is to be presumed in case of such a child unless negative be proved on defence, i.e., the burden of proof lies, on the accused above the age of seven and below twelve to show that he had not attained sufficient maturity. A person at the age of sixteen is sufficiently matured to understand the full implication of his acts, and there fore if he commits a deliberate murder, he cannot on account of mere age legitimately claim the benefit of the lesser penalty. Sub‑clause (5) of section 367, Cr. P. C., clearly enjoins on the Court to state the reasons why the sentence of death was not passed. In other words, the sentence of death is the normal penalty and the Courts while refraining from awarding the capital sentence are under statutory duty to record the reasons.

10. So far I have been discussing the subject untrammeled by authorities, though there is abundant authority including the high authority of the Supreme Court on the point. The first authority which I would like to refer is the decision in Harnamun v. Emperor (A I R 1928 Lah. 855) Shadi Lal, C. J. speaking for the Division Bench at page 856, expressed himself thus: "On the other hand the medical evidence shows that he is a boy of about 17 years of age. I am not prepared to assent to the proposition that youth alone constitutes such an extenuating circumstance as would justify the imposition of the lesser penalty prescribed by the law." Their Lordships, however, in that particular case reduced the sentence to that of transportation for life, on the ground that the prisoner had no personal enmity with either of the victims, and that he was probably a tool in the hands of their enemies like Kartar Singh who has been acquitted by the learned Sessions Judge.

11. In Gehna Sardara v. Emperor (A I R 1930 Lah. 50) it was held: "The mere youth of the murderer was insufficient for not imposing the capital punishment and that the absence of an apparent motive could not be construed as indicating the existence of a provoking cause, which would amount to a mitigating circumstance." The age of the accused in that case was between 18 and 19 years.

12. In Hari Kishan v. Emperor (A I R 1933 Lah. 305), a Division Bench of Lahore comprising of Coldstream and Johanstone, JJ., relying on the remarks of Shadi Lal, C. J. in the case of Harnamun v. Emperor refused to make recommendation for the commutation of the sentence to the Provincial Government. At page 306, their Lordships observed thus: "The recommendation for mercy was made only on account of the appellant's youth. It is conceded by Mr. Puri that youth alone does not constitute an extenuating circumstance such as would justify the lesser penalty prescribed by the law."

13. In Muhammad Din Mehar Din and another v. Emperor (A I R 1938 Lah. 200) Young, C. J. speaking for the Division Bench, made certain observations which reinforce the view that it would be wrong to hang boys of 15 years of age. I have perused the report of the case and find that besides the accused being of tender age there was an additional circumstance, namely, provocation at the hands of Dullah, the father of the deceased. It will be profitable to extract the relevant passage at page 201, which reads: "We have had the advantage of seeing them here ourselves and we would put their ages in the neighbourhood of 15 . Not only do we think that it would be wholly wrong to hang boys of this age, but in this case there is some evidence contained in the confessions which is of course the real evidence against both of them, that there was provocation at the hands of Dullah, the father of Bashir, who was murdered."

14. The same view has been approved by the Madras High Court in the following authorities: (1) In re: Kattameedi Chenna Reddi and another A I R 1940 Mad. 710 (2) In re.: Chevveti Ramudu and another A I R 1943 Mad. 69. (3) In re: Mariappan alias Vengayan and another A I R 1947 Mad.

264. I would like to extract the observation of Mockett, J. from the first noted authority. At page 716, his Lordship summed up the discussion thus: "With regard to the sentence, accused 2 is 25 years old and accused 1 is stated to be 17, although before the Court of Session his age was given as

19. In the case of accused 1, as we have frequently had occasion to remark before, youth by itself is not a reason why the Court should evade its duty of sentenc ing the accused to death specially in the case of a cruel murder, such as this. We think that the sentences of death were rightly passed and we confirm them."

15. In Gurdev Singh and others v. Emperor (A I R 1948 Lah. 58), Muhammad Munir, J., as his Lordship then was, at page 61 expressed himself on the very same question in the following words: "It is impossible to lay down any general rule defining the classes of cases in which the lesser sentence may be imposed though, from time to time certain circumstances have been recognised by the Judges who had to consider this question as valid grounds for imposing such sentence. One of these is the extreme youth of the offender, however, brutal or premeditated the offence; but there is no precedent for the proposition that a youth of 19 or 20 comes within this exception."

16. In Khairdi Khan and others v. Crown (P L D 1951 Lah. 322). Muhammad Munir, C. J. and S. A. Rahman, J. as their Lordships then were, have dealt very exhaustively on the question of sentence in a case of deliberate murder, and if I may say so with respect, the observations of Muhammad Munir, C. J. on the subject cannot be bettered. I would, therefore, copiously reproduce the excerpt from his Lordship's observations on the subject. At page 327, his Lordship observed: "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 with held 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." Continuing the discussion, his Lordship stated: "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." Continuing the discussion, his Lordship said: "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 familied man and had to look after his children, a reason which takes 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 a mentally incapable of awarding capital punishment where law and facts demand it is a complete misfit in the judicial machinery. Being placed in that system he has no right to play the part of a conscientious objector." The following observations of his Lordship on the subject are very pertinent:‑ "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 hardship 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 motion that they are the final arbiters of the life of the man whom they convict and sentence to death or that a man will die simply because they condemn him to death." His Lordship then observed: "Though the law prescribes an alternative sentence on con viction of murder, Judges have been consistently emphasising the position that the normal sentence in such cases is death unless there be any extenuating circumstances. His Lordship wound up the discussion with a warning 'to the Sessions Judge in the following words: "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."

17. The Allahabad High Court in Ram Singh v. State (A I R 1960 All. 748) had to consider precisely the very same question and after review of the case‑law on the subject, Dhavan, J. speaking for the Division Bench, refused to assent to the proposition that the mere fact that the accused as 17 years of age would not entitle him to the lesser penalty of death unless there were other extenuating circumstances. At page 751, his Lordship observed: "But it is clear that the Code provides no exemption for young persons on the ground that they are young. Youth may lead to certain presumptions in favour of the murder which, if not displaced by evidence, may induce the Court not to impose a death sentence. But youth alone does not entitle him to claim the lesser punishment, if the murder is brutal and cold- blooded and there are no extenuating circumstances. In such a case the law requires that the sentence should be death." In para. 18, his Lordship proceeded to observe: "But if the evidence reveals that the criminal, though young in age, fully understood what he was doing and the murder was cold‑blooded, deliberate and planned, and there are no extenuating circumstances, his age alone will not save the murderer from the sentence of death. He will then be given the extreme punishment, as a normal case." After reviewing the case‑law on the point, his Lordship, in para. 23, summed up the discussion thus: "These cases were not cited at the bar but we examined them ourselves during the hearing and, in our opinion, there is overwhelming authority for the principle that youth in itself is not a ground for imposing the lighter sentence."

18. We would wind up the discussion by extracting the weighty observations of Cornelius, (C. J.) in Sher Hassan v. The State (P L D 1959 S C (Pak.) 480). In that case the sentence of transportation for life of Sher Hassan was enhanced to death by the High Court by way of enhancement in revision for the murder of one Sultan Shah. On leave to appeal the Supreme Court had to consider whether on the facts and circumstances of the case the enhance ment of the sentence to death was appropriate. Sher Hassan was 16 years of age. At page 483, Cornelius (C. J.) speaking for the Court, observed thus: "It is established that he deliberately fired at Sultan Shah, with the intention of causing his death. Such an act, if it leads to the death of the intended victim, properly invites the extreme penalty of death for the offender, unless his responsibility is minimised in some way. The features of domination advanced are firstly, immaturity of age, and secondly, immediate control by a superior influence. It is clearly not possible to fix any limits of age above or below which such an act might be thought to be adequately punished by inflicting the lesser penalty of transportation for life. We agree with the learned Judges of the High Court in thinking that the person aged 18 years who commits a deliberate act of murder in the circum stances here found must be assumed to act with full responsi bility. But, it must be allowed that as the age of the agent is reduced, the decree of responsibility in this respect diminishes with increasing rapidity. The age of 18 years which is recognised as the age of majority, is achieved after a period of manage in which the growing child gains through experience a correct appreciation of his relationship to other people, and the limitations upon his own freedom of section which this entails. An essential feature of the process in the elimination of the controls exercised by senior members of the family. From being absolute in his years of infancy, these are brought down to a few essentials by the time majority is achieved. The process is accelerated in the later years of manage, so that in the relevant respect, the disparity of responsibility between a boy of 16 and a young man of 18 might be very appreciable, particularly in the aspect of control by senior members of the family." His Lordship after discussing the disparity between the age of the appellant and his elder brother. Sher Afzal, summed up the discussion thus: "The learned Judges have declined to, believe the evidence tending to show that Sher Hassan was given the pistol by Sher Afzal and only fired upon being ordered to do so by the latter. They have given the benefit of the doubt on this point to Sher Afzal, while at the same time believing that Sher Afzal was on the spot. But they have not adjudged the effect of the doubt on this point in relation to Sher Hassan. The doubt being whether one of two possibilities represents the truth, the possibility that Sher Afzal did not hand over the revolver or order Sher Hassan to shoot is one of which the benefit must go to Sher Afzal. But that is no reason why the alternative possibility namely, that being on the spot Sher Afzal did produce the revolver and order Sher Hassan to shoot with it should not be given its due legal effect in relation to Sher Hassan. He is entitled in law to ask that the decision on the matter of sentence, which tends to effect him vitally, should be based on the supposition that he did not under the influence of his elder brother. It will be manifest from the observations reproduced above that notwithstanding the fact that Sher Hassan was 16 years of age he was not given the benefit of lesser penalty on account of youth, but on the supposition that he did act under the influence of his brother. To sum up all the authorities referred to above are agreed that mere youth by itself would not earn the accused the lesser penalty of death in absence of any other extenuating circumstances. Only in one case Ghunnai v. Emperor (A I R 1934 All. 132), the accused whose age was stated to be under 15 by the Civil Surgeon and had murdered a boy of 18 years of age by chopping off his hands for the sake of some ornaments which the boy was wearing, the learned Judges were persuaded after observing his appearance "that he would not have done this horrible deed if he had been older" and awarded the lesser penalty. That case is clearly distinguishable in that, in the first instance, the accused was stated to below 15 years of age; in the accused place, the accused did not appear to have planned to kill the deceased but wanted to obtain the ornaments of a smaller boy; and in the third place, he had chopped off his hands in calleur and brutal disregard of the likely effect of his act. So that as it is, with respect to the learned Judges, if they intended to lay down the broad principle that youth by itself was sufficient to earn the accused the benefit of lesser penalty in my opinion, the authority is clearly opposed to the overwhelming authority including the high authority of the Supreme Court referred to above that youth itself is not ground for awarding a light sentence.

19. For all the foregoing reasons, we would answer the first question in the negative.

20. This takes us to the second question. Khan Abdul Latif Khan contended three circumstances which, in his view, were mitigating circumstances for giving light sentence. First, that the respondent was smarting under the insinuation of his being called the keep of Shakirullah and one Yaqub. Second that he had acted under the influence of Shakirullah (discharged accused) so much so that admittedly the respondent was carrying the licensed D. B. shot‑gun of his father. Third, that in view of the rule enunciated by the Supreme Court in Ghulam Hussain v. Zianullah and State (P L D 1961 S C 230), regard being had to the length of time from the incident (30‑1‑1964) and the date of hearing of the revision petition (4‑10‑1965) and the further fact that the accused having obtained full expectation of life from the Additional Sessions Judge awarding him life sentence (on 24‑6‑1964) we should decline to enhance the sentence to that of death on a private petition.

21. S. Ghazanfar Ali Shah Bokhary, Assistant Advocate General, supported the argument of S. Masoom Shah that there were no mitigating circumstances for with‑holding the death penalty in particular when the respondent apparently had after due deliberation equipped himself with a shot‑gun and killed the deceased without any preliminary.

22. On a careful review of the evidence, we have formed the opinion that the normal penalty of death in the instant case is not called for, in that besides the youth of the accused the deceased had provoked the respondent by insinuating that not only he was the keep of Yaqub, but that he was also the keep of Shakirullah. The remarks were bound to hurt the respondent as also Shakirullah and since Shakirullah is admittedly older than the respondent, he 'as an active agent could easily dominate the will of the respondent. It appears that the respondent had committed the offence under the influence of Shakirullah so much so that the latter had lent the licensed D. B. shot‑gun of his father to the former. Shakirullah also appears to have lent moral support to the respondent by being present at the shop of Khaista Gul (P. W. 5). The reasonable possibility of Shakirullah having used his influence on the respondent and having worked him up for the offence cannot be excluded.

23. Having held that the respondent had committed the offence under the influence of Shakirullah, we do not feel advised to decide the question whether the principle enunciated in Ghulam Hussain v. Zalnullah and State would govern the case in which the Sessions Judge has 'inappropriately instead of capital sentence given the lesser penalty.

24. Before we take leave of the case, we should like to record our strong disapproval of the refusal of the Sessions Judges to award the normal penalty of death in appropriate cases by giving disingenuous reasons. The refusal of the Sessions Judges to award capital sentence in appropriate cases besides amounting to "refusal to administer the law" produces other unfortunate repercussions. For one thing, it creates a sense of injustice in the mind of the complainant party and no greater mischief than that can be imagined. Secondly, in most of the cases the complainant party is compelled to spend considerable amount of money by preferring revision petitions for enhancement of the sentence to this Court, which inevitably leads to congestion of work and of late there has been alarming increase in number of such revision petitions. We are mindful of the fact that the capital sentence has been troubling the conscience of large sections of humanity and in many civilised countries the capital sentence has been banished from the Penal Codes and that Great Britain has very recently joined this club. The question whether the conditions prevailing in Pakistan would justify the abrogation of the capital sentence is primarily for the society to create the public opinion and then for the Legislature to bring about the necessary amendment and till then the judiciary is under legal obligation to award capital sentence. We would, therefore, conclude with the warning in the words of Munir, C. J.‑"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".

25. On 4th October .1965, we had announced the order and this judgment would furnish the detailed reasons. K. B. A. Petition dismissed.