1976 PLP 532 (SCMR)

The murder of Nooran Shah for which the petitioner stands convicted has a tragic background or murders of four persons committed at three dif ferent occasions since 1‑7‑1970 in each of which Nooran Shah deceased was allegedly concerned. The facts leading to the present murder, are more or less not disputed. The case for the prosecution is that the petitioner's brother Jamroz any the deceased Nooran Shah started a joint business as milk‑sellers. The petitioner's brother Jamroz looked after the much‑cattle in the Jungle‑Kheshki Payan where be also lived and the business of milk‑selling was actually carried by Nooran Shah deceased. A dispute arose between the two partners at the time of settlement of accounts, according to which Jamroz had to pay certain sums to Nooran Shah deceased. This led to a rift between the two partners in business. On 1‑7‑1970 at about 5‑00 a.m. Jamroz was killed in the jungle. F. I. R. No. 164 of 1970 was lodged by the petitioner's father Sher Afzal in which he charged Nooran Shab with the murder and named Ajun Khan and Ashrafud din as the eye‑witnesses. On 27‑7‑1970 that is to say within less than a month of the previous murder, both Ajun Khan and Ashrafuddin were killed and an attempt on the life of their brother Rahim Khan was made by Nooran Shah. In F. I. R. No. 180 of 1976 relating to this incident besides Nooran Shah, his brother was also named as the assailant. After these two Incidents, Nooran Shah turned an absconder. On 12‑3‑1972 at about noon time, the petitioner's father Sher Afzal was also murdered. This time, the report was lodged by the petitioner in which besides Nooran Shah he charged his brother Amir Dost alias Kejanai and two others for the murder of the petitioner's father. On 9‑8‑1972, Nooran Shah was arrested and in due course, in the case concerning the murder of Jamroz, (the first in the series), Nooran Shah was committed to the Court of Sessions for trial. In the second case, in which Nooran Shah alongwith his brother was accused of the murders of Ajun Khan and Ashrafuddin, and attempt on the life of Abdur Rahim, he had to appear in the Court of Mr. Bahadur Khan, Magistrate, 1st Class, at Nowshera on 26‑4‑1973 and for that purpose he was brought from Peshawar to Nowshera and lodged in the lock‑up in the presincts of Nowshera Courts. On 26‑4‑1973 at 10‑00 am, on a direction from Mr. Babadur Khan. Nooran Shah deceas ed, was brought to his Court by F. Cs. Muhammad Hashim and Faulad, in hand‑cuffs and shackles from the judicial lock‑up at a distance of about 50 paces. Just before Nooran Shah was ushered in the Court‑room of Mr. Bahadur Khan, the petitioner who had wraped himself in a chadar, entered the Court‑room and stood near the entrance. As soon as Nooran Shah was brought in the Court‑room, the petitioner took out a pistol from under his chadar and fired five or six shots in quick succession as a result, Nooran Shah dropped dead. Babadur Khan, Ahmadullah Shah, P. S. I., Gul. A. S. I. Suban Gul A. S. I. F. Cs. Faulad and Muhammad Hashim overpowered the petitioner and relieved him of the pistol Exh. P. 4). It was a 32 bore automatic pistol with one live cartridge in the magzine. Mr. Bahadur Khan wrote out a report (Exh. P. A/1) about the incident and sent it to the S. H. O. at 10-30 a.m. Haring investigation, Mr. Bahadur Khan also produced pistol (Exh P. 4) alongwith one live cartridge in the chamber. According to his autopsy, Nooran Shah died of multiple firearm injuries of which six were inlet wounds, which had injured his thorax walls, pleura, lungs and various blood vessels. Mandibular bone was fractured. F. C. P. W. Alam Khan was also injured during the scuffle to overpower the petitioner. In the course of his trial, the petitioner stated as follows :‑ "Nooran Snah had murdered my brother Jamroz and my father and two witnesses Ajud and Ashrafuddin who had deposed against Nuran Shah in the murder case of my brother. Nuran Shah had threatened me with dire consequences. Whenever I used to see Nuran Shah, he used to tell me that next term is mine to vacate and I never maintain balance of mine while confronted with him. I am innocent and falsely charged." The petitioner produced no evidence in defence. The trial Judge as also the learned Judges in the High Curt found the above evidence overwhelming and therefore, had no hesitation to sentence him to death for the murder of Nooran Shah. Mr. Maqbool Elahi Malik, learned counsel for the petitioner, frankly conceded that in view of the fact that the petitioner was apprehended at the spot and the independent evidence produced in the case, he cannot possibly question his conviction. He however, made an earnest plea that in view of the background which had led the petitioner to avenge the murders of his brother and father and the two prosecution witnesses in the case relating to the number of his brothers the extreme penalty was not justifiable and that consistently with the view taken in some of the precedent cases, the ends of the justice would have been fully satisfied with the lesser sentence. We cannot possibly say that there is no substance in the above plea. However, the fact remains that the sentence of death imposed upon the petitioner is perfectly legal and the mere fact that in the peculiar circum stance of the case, the lesser sentence would have been more appropriate would not be a sufficient ground for grant of leave by this Court, for, as pointed out in a number of cases, this Court will normally not interfere to reduce the sentence which otherwise is legal. Adhering to that view, we are constrained to refuse leave, in a matter which was entirely discre tionary with the High Court and the trial Court. This aspect of the case, now, more appropriately falls to be dealt with by the Executive in the exercise of its prerogative of mercy. Accordingly, the petition is dismissed with the above observations. Petition dismissed.