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Criminal Appeal No. 44 of 1953, decided on 17th May, 1954.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 26th August, 1953,
in Criminal Appeal No. 196 of 1953).
Criminal Procedure Code (V of 1898), Ss. 439 and 367 (5) Enhancement of sentence‑Principles‑Discretion of trial Judge in the matter of sentence, and of High Court in re vision‑Application for enhancement by private party not barred‑Lesser penalty for murder.
Two of the three persons charged with murder were sentenced to death by the Sessions fudge and the third to transportation for life. The variation in sentence turned, according to the trial Judge, on the consideration that the third accused did not appear to have actually inflicted an injury on the victims. The incident was pre‑arranged and pre‑planned. The accused awarded the lesser penalty had stood guard on one of the victims in order to prevent him from making good his escape and had later joined with the other two accused in pursuing him to the place where he was . ultimately finished. The High Court enhanced the sentence of the third accused to death on application for revision preferred by a private person. Held, (Per majority, Abdul Rashid, C. J., contra) that the action of the Riga Court in enhancing the sentence in the circumstances of the case was justified.
Per Akram, J.‑1 he question of what should be the proper sentence is, in my opinion, not for the Federal Court to determine in the exercise of its prerogative powers. It depends upon' the conduct of the convict and the surrounding circumstances of the case and should, therefore, be left to the discretion of the High Court as the final Court of facts.
.‑The unfettered discretion has thus been settled by practice which, 1 think, should not be departed from except for strong reasons. As long as the High Court exercises its discretion in enhancing the sentence judicially on recognised principles and not arbitrarily and no miscarriage of justice has resulted, there can, I think, be no reason for interfering with its discretion.
Emperor v. Mangal Naran I L R 49 Bom. 450, Gunduthalayan alias Thuilan i L R 53 Mad. 585 and Ala Muhammad and another v. Khanna and others A I R 1938 Lah.
Per Cornelius, J.‑The Court should always incline in favour of supporting a discretion of this kind exercised in a particular case by the High Court, unless it can be sure that
that discretion has been erroneously exercised or cannot be supported in reason. On considering the. facts of the present case, and the reasons given by the trial Judge and by the learned Judges of the tligu Court for tneir respective views in reiatiUn to the proper sentence for the accused Nura, I am clearly of the opinion that the view taken by the High Court is supportable.
Emperor v. Mangal Naran I L R 49 Born. 450, Gunduthulayan alias Thuilan I L R 53 Mad. 585, Uttam Singh A 1 R 1938 Lah..461, Manna Singh A 1 R 1937 Lah. 215, Abdul
Ghani P L R 1 Lau. 131 (1) B) and Blunt v. Blunt L iZ 1943 A C 517 ref.
Per Abdul Rashid, C. J.‑So long as the trial Court performs its duty in this respect in accordance with law, the High Court should not enhance the sentence and thereby fetter the discretion vested in the trial Court and exercised by the learned Judge in accordance with law. If the reasons given by the Sessions Judge. in indicting the lesser punishment are perverse,
or foolish, or manifestly wrong, the High Court could hold that the discretion vested in the learned Sessions Judge had been exercised in an arbitrary, injudicious or capricious manner. In such circumstances, the High Court would be justified in enhancing the sentence. Where the reasons given by the Sessions Judge are such that they might appear reasonable to some Judges and unreasonable to others, the High Court is not entitled to enhance the sentence simply because it would have inflicted a higher sentence had it been trying the case itself.
Per Abdul Rashid , C. J.‑Ordinarily this court is reluctant to interfere on a question of sentence. If, however, the enhancement of sentences by the High Court. or the imposition of sentences in cases tried by the High Court raises a question of principle, this Court would not hesitate to lay down correct principles for the guidance of the High Courts and the Subordinate Courts.
Mewa and others v. The Crown A I R 1935 Lah. 337, Uttam Singh v. The Crown I L R 1938 Lah. 347, Emperor v. Mangal ran I L R 49 Dom. 450 at p. 453 and Gundurhalayan alias ThI v. the Crown (1930) 1 L R 53 Mad. 585 ref.
Tasadduque Hussain, Senior Advocate, Federal Court (S. A‑. Karim, Advocate, Federal Court, with him) instucted
by S. Yirasat Hussain Naqvi, Attorney, for Appellants.
A. R. Changez, Advocate‑General, of the Punjab (C. M. Sharif, Advocate, Federal Court; with him) instructed by
Ijaa Ali, Attorney, fur Respondent.
Date of hearing : 26th April, 1954.
ABDUL RAHSID, C. J.‑The appellants Talib, Farid‑and iNura, were tried by the Additional Sessions Judge of Jhang for the murders of Amir, a mason, and Muhammad Nawaz and Murad, sons of Qaim Khan Lambardar (P.W. 10). Talib and Farid were sentenced to death while Nura was awarded a sentence of Transportation for life under the provisions of section 302/34 of P. P. C.The three convicts preferred an appeal in the High Court of Judicature at Lahore, while a petition for revision was filed by Qaim Khan praying that the sentence of transportation for life awarded to Nura be enhanced to one of death. The learned Judges of the High Court dismissed the appeal of the convicts. The petition of revision preferred by Qaim Khan was accepted, and the sentence of transportation for life imposed on Nura by the 'trial Court was enhanced to one of death. Against this dec'sion, the present appal has been pre ferred by the convicts by special leave. The murders were committed at about 11.0 p.m. on the 3rd April, 1952. Luqman (P. W. 13), who is a mason and is a completely disinterested witness' stales that Amir and Murad deceased, and he were sleeping in' front of a kotha on the night in question, while the inmates of' the house were sleeping in, the courtyard. Qaim Khan (P. W. l0) was sleeping near the mosque under construction. The witness was awakened at the time of the occurrence by the sound of blows and noticed that his companion Amir was being attacked, by three persons who were armed with a hatchet, a spear, and a lathi, respectively. He tried to get up and run away but he was attacked and given two or three blows by the assailants. When they realised that he was a mason and not one of the intended victims they spared him. In the meantime, Murad got up and was chased by Talib and Farid. Murad was overpowered near the water‑course and killed there. Nura was armed with a lathi and stood outside the room where Muhammad Nawaz was sleeping. After finishing with Murad, all the culprits unhinged the door of the room occupied by Muhammad Nawaz. The victim, however, succeeded in getting out and running away. The assailants pursued and killed him at some distance from the mosque.
It appears from the evidence that the motive of the convicts was to kill Qaim Khan and his two sons Muhammad Nawaz and Murad. It was due to a mistake tnat Amir was killed in place of Qaim Khan Lambardar. The learned Sessions Judge has pointed out that Nura was armed with a stick and that he was not responsible for any injury on the deceased persons. All the injuries on the persons of Amir, Muhammad Nawaz and Murad had been inflicted with sharp‑edged weapon. It was in view of these facts that the learned Sessions Judge, in the exercise of his discretion, awarded a sentence of transportation for life to Nura. His observations on the ques tion of sentence are to the following effect:
"According to the prosecution Nura, accused, did not chase Murad, and obviously was not resposible for any injury to him resulting in his death. Recovery of a lathi from the kotha of Muhammad Nawaz by the police would suggest that Nura'' lathi was left there when Muhammad Nawaz ran from there and was chased by the three assailants, though the witnesses stated that Nura had been seen with a lathi while chasing Muhammad Nawaz. The death of none of the three victims was due to a lathi blow. Hence Nura may not be awarded the capital sentence."
No petition for enhancement of sentence was preferred by the Crown. The learned Judges of the High Court enhanced the sentence awarded to the appellant Nura on a petition by Qaim Khan Lambardar. The observations of the learned Judges relating to the enhancement of sentence occur in one short paragraph which may be reproduced in extenso:‑
"No mitigating circumstances have been brought out in this case, which would justify leniency in the matter of punishment. The learned Sessions Judge has thought it fit to give the benefit of the lesser penalty to Nura accused, but we do not see that there was much justification for it. These were obviously pre‑planned murders and Nura accused had assisted the other two accused actively in murdering Murad and Muhammad Nawaz. According to the ovidence he had stood guard on Muhammad Nawaz,
while his two co‑adjutors were engaged in killing Murad. As was observed by the Privy Council in discussing the provisions of section 34 P. P. C. "they also serve who stand and wait." We are wiable to find any reason in law for withholding the normal penalty of death in Nura's case.
The guilt of the appellants is conclusively established by the testimony of six eye‑witnesses, one of whom, namely, Luqman, is completely disinterested. As far as the con victions of the appellants are concerned, this case does not present any feature which would justify our interference. I would, therefore, confirm the convictions of all the three convicts under section 302 of the P. P. C.
The enhancement of sentence in the case of Nura raises a question of principle. It has been laid down in sub section (5) of section 367 of the Code of Criminal Procedure that "If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death the Court shall in its judgment state the reason why sentence of death .was not passed."
In the present case, the learned Sessions Judge did not ignore the provisions of law embodied in section 30. He brought his judicial mind to bear on this question and came to the conclusion that as Nura had obviously not inflicted a single blow on any of the victims, his case should, as far as the sentence is concerned, be distinguished from the cases of the other assailants. It is true "tney also serve who stand and wait." This only means that a person who joins others in causing death is guilty of murder, and he cannot be convicted of a lesser offence simply because he stood and waited and did not inflict any injury. The observation of their Lordships of the Privy Council does not, however, mean that his case cannot be distinguished from the cases of other parsons on the question of sentence. It is for the trial Court to take all the circumstances into consideration and to determine whether in respect of a particular convict the sentence of transportation for life would not be more suitable than the sentence of death. So long as the trial Court performs its duty in this respect in accordance with law, the High Court should not enhance the sentence and thereby fetter the discretion vested in the trial Court and exercised by the learned Judge in accordance with law. If the reasons given by the Sessions Judge in inflicting the lesser punishment are perverse, or foolish, or manifestly wrong, the High Court could hold that the discretion vested in P the learned Sessions Judge had been exercised in an arbitrary; injudicious or capricious manner. In such circumstances, the High Court would be justified in enhancing the sentence Where the reasons given by the Sessions Judge are such that they might appear reasonable to some Judges and unreasonable to others, the High Court is not entitled to enhance the sentence simply because it would have .inflicted a higher sentense had it been trying the case itself. In this connection, I could like to refer to two Division Bench decisions of the Lahore High Court to which I was a party. Tile first of these cases is Mewa and others v. The Emperor (A I R 1935 Lah. 337). In this case, three assailants had inflicted fifteen injuries on the deceased person and no less than ten were on the head. The skull of the victims was reduced to pulp, and the finding of the Sessions Judge was that the three accused persons had deliberately lain in ambush in order to murder the deceased and had succeeded in accomplishing their purpose. In spite of this, however, the learned Sessions Judge sentenced all the three assailants to transportation for life on the ground that it was impossible to determine whose blow had ultimately caused the death of the victim. It was held by the learned Chief Justice, with whom I agreed, that the reason . given by the Sessions Judge for giving the lesser penalty was no reason at all. It was on that ground that the sentences of transportation for life awarded to the culprits were enhanced. The same Bench that had decided the case of Mewa and others v. The Crown dealt with the case of Uttam Singh v. the Crown (1 L R .1938 Lah. 347 .). The following observations in that judgment are instructive :‑
The learned Advocate‑General has presented a petition on behalf of the Local Government praying that capital sentences should be awarded to Ghanaya Lal and his son Mulkh Raj as they deliberately participated in the assault on Narain Singh which resulted in his death. Narain Singh had nine injuries on his person. All the injuries with the exception of injury No. 5 were of a minor character. Injury No. 5 resulted in his death and this according to the unanimous testimony of all the prosecution witnesses was inflicted on his person by Uttam Singh. In these circum stances it cannot be said that the learned Sessions Judge was patently wrong in giving the lesser sentence to Ghanaya Lal and Mulkh Raj. Moreover, Mulkh Raj is 1g years of age and this fact is a further justification for awarding him the lesser sentence permissible under section 302. We are of the opinion that the power to enhance sentences should be sparingly exercised by this Court and sentences should be enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that this Court, had it been trying the case, might have imposed the capital sentence, is not a sufficient reason for enhancement. We, therefore, dismiss the petition for the enhancement of the sentences awarded to Ghanaya Lal and Mulkh Raj."
These observations are applicable with full force to the present case. The learned Sessions judge cannot be said to have exercised his discretion in an arbitrary manner in stating that as Nura had refrained from inflicting a single injury on the victims, the ends of justice would be sufficiently met if he is awarded a sentence of transportation for life.
The. learned Advocate‑General contended that he could not controvert the principle of law enunciated in the decisions referred to above, but that the present case had now reached a stage where the High Court had already exercised its discretion and enhanced the ‑sentence. It was urged that by restoring the judgment of the Sessions Judge we would be upsetting the discretion exercised by the High Court. In my opinion, this is an entirely erroneous way of looking at the matter. This argument pre‑supposes that the principles governing the imposition of sentences by the trial Court and the principles governing the enhancement of sentences by an appellate Court are exactly the same. The question for con sideration is whether this was a fit case
in which the High Court should have taken the extraordinary course of enhancing the sentence of transportation for life into one of death, when the reasons given by the Sessions Judge for awarding the lesser penalty were not perverse, foolish, or manifestly wrong.
If the arguments of the Advocate‑General were to be given effect to, this Court could never interfere on the question of sentence, however, preposterous the decision of a High Court may happen to be. In every case, it could be said that the High Court had exercised its discretion in enhancing the sentence and that by reducing the sentence we would be fettering the discretion that vests in the High Court. It has been laid down in a number of decisions in almost all the High Courts that even in murder cases the discretion exercised by the Sessions Judge should not be lightly interfered with. The following observations by Sir Norman Macleod, C. J., in the case of Emperor v. Mangal Naran (I L R 49 Dom. 450 at p. 453
) are worthy of re production :
"There are many murder cases which come on appeal to this Court in which it has been evident that the Sessions Judges were too lenient, and had exercised the discretion which they are given by law too much in favour of the accused. But, as I have already stated, we do not like to interfere except when we think that the sentence of death is the only possible sentence to be inflicted. In this case, although we think that the Sessions Judge ought to have sentenced the accused to death, we are not disposed to proceed with the notice to enhance the sentence."
Similar observations were made by Beasely, C. J., in his judgment in the case of Gunduthalayan alias Thailan v. The Crown ((1930)1 L R 53 Mad. 585
). Several authorities of other High Courts were also cited at the Bar. It is unnecessary to make reference to them as the principle of law is well‑settled that even in murder cases the High Court should enhance the sentence only if the imposition of the lesser sentence would cause serious miscarriage of justice.
As stated already, in the present case no petition for Enhancement was preferred by the Advocate‑General on behalf of the Crown: It has been observed over and over again that private persons should not be encouraged to prefer applications for enhancement of sentences in cognizable cases. It is true that ordinarily this Court is reluctant to interfere on a question of sentence. ‑ If, however, the enhancement of sentences by the High Court or the imposition of sentence
in cases tried by the High Court raises a question of principle, this Court would not hesitate to lay down correct principles S for the guidance of the High Courts and the Subordinate Courts.
For the reasons indicated above, I would dismiss this appeal so far as Talib and Farid appellants are concerned. In the case of Nura appellant, however, I would allow this appeal to the extent of restoring the sentence of transportation for life awarded to him by the learned Sessions Judge.
AKRAM, J.‑The three appellants Talib, Farid and Nura were put upon their trial before the Sessions Judge of Jhang, for committing the murder of Muhammad Nawaz and Murad (two brothers) and one other person, Amir Nawaz and as also for making a murderous attack on Luqman, P. W. 13, on the 3rd of April 195 2. They were convicted under sections 302/34 and 307/34 of the Penal Code. Talib and Faril were sentenced to death and Nura to transportation for life under section 302/34 ; and all of them were sentenced to rigorous imprisonment for five years under section 307/34. Against this judgment the convicted persons preferred an appeal to the High Court of Judicature at Lahore, while P. W. 10, father of Muhammad Nawaz and Murad, deceased, filed an application in revision under section 439, Cr. P. C. for the enhancement of the sentence of Nura under section 302/34. The High Court dismissed the appeal, confirmed the death‑sentence of Talib and Farid and enhanced under section 439, Cr. P. C. the sentence of Nura from transportation for life to a sentence of death. The appellants thereupon preferred the present appeal with our leave.
The main point urged by counsel for the appellant was with reference to the enhancement of the sentence of Nura at the instance of P. W. 10. It was argued that the Additional Sessions Judge, after a careful consideration of the facts and circumstances of the case, had imposed upon Nura the sentence of transportation for life instead of a death‑sentence, giving as his reason for doing so, the fact that Nura had taken no part in the actual assault upon any of the deceased persons, but had merely guarded Muhammad Nawaz preventing thereby his escape from his room and had chased him when he came out of it and started running away; that the reason thus assigned under section 367 (5) of the Cr. P. C. was a cogent reason and the High Court, therefore, was not justified in enhancing the sentence of Nura on the application of a private prosecutor bent upon gratifying his personal grudge.
It appears, however, that the attack was a deliberate and a pre‑arranged one due, to a family feud existing between the parties. On the principle laid down in section 34 of the Penal Code, it is not necessary that all the members of an assembly ,4 united together by a common intention should take an active part in the actual commission of a crime before any individual member thereof can be held liable for it. All the persons joined together by a common intention are regarded in law as
one single body and the common intention running through the entire body makes every member of it responsible irrespective of his taking or not taking any active part in the actual commission of a crime. Preventing Muhammad Nawaz from escape, was, as necessary for, bringing about his death as actually striking him with a spear or chhavi, which was done by the associates of Nura. It is true that Courts should not encourage private persons to wreak vengeance by entertaining from them applications for enchancement of sentence in connection with a Crown prosecution ; . nevertheless, where there is a clear ground for interference under section 439 of the Cr. P. C., J it matters not by what source the case comes up before the High Court. Under section 439, Cr. P. C. "the High Court may in its discretion exercise any of the powers conferred . . . . and may enhance the sentence". The present case was a case of cold‑blooded and brutal murder of three persons in pursuance of a pre arranged plan, and, I think, therefore, that the High Court acted rightly in enhancing the sentence of Nura. Since all the three accused were equally responsible in the eye of law there is no reason why they should not be equally punished without making any difference between them. The question of what should be the proper sentence is, in m opinion, not for the Federal Court to determine in the exercise of its prerogative powers. It depends upon the conduct of the convict and the surrounding circumstances of the case and should, therefore, be left to the discretion of the High Court as the final Court of facts. The Federal Court cannot be asked to substitute its own discretion for that of the High Court to which it has been entrusted under section 439, Cr. P. C. No definite principle of law seems to me to be involved in deciding the quantum of punishment in a given case, all that one can say is that the punishment must be commensurate with the offence, but as already remarked that is for the High Court to decide on a C consideration of the facts and circumstances of each case. It would be a vain endeavour to make an attempt at standardizing sentences and regulating the same by fixing a sort of graduated seal for punishments. In fact, I cannot help thinking that had the matter depended upon the application of rigid legal principles, some discussion or decision with regard to those principles by the Judicial Committee of the Privy Council would have been discovered in the existing Law Reports of over a hundred years. I am unwilling in the circumstances to depart from the practice and precedent of their Lordships while exercising their jurisdiction. ‑ Section 367 (5), Cr. P. C. merely directs that on a conviction for murder, if the sentence of death is not awarded by the original Court, it shall in its judgment state the reason for it. The section does not in any manner affect the discretion of the‑ High Court under section 439, Cr. P. C. relating to the enhancement of sentence. The High Court may make general observations for the guidance of the Subordinate Courts in the matter of imposing sentences, but that would not justify the interference by the Federal Court with a lawful sentence passed by the High Court itself, on the ground that it is too severe, though is conceivable that there may . be at times some exceptional circumstances calling for interference by this Court even in matters of discretion. if there be any real grievance as regard sentence, it is always open to the aggrieved party to apply to the relevant executive authorities to reduce or to commute the sentence. I would dismiss this appeal.
The appellants Talib, Farid and Nura were convicted by the Additional Sessions Judge, Jhang, under section 302/34 and section 307/34, P. P. C. for the murders of three persons, Muhammad Nawaz, Murad and Amir Muhammad and for the attempted murder of witness Luqman (P. W. 13). Appellants Taiib and. Farid were sentenced to death and appellant Nura to, transportation for life for the offences of murder, and all of them to five years rigorous imprisonment each for the offence of attempted murder. The High Court of Judicature at Lahore dismissed their joint appeal, confirmed the sentences of death impose on Talib and Farid and enhanced the sentence of Nura to one of death on a revision petition filed by Qaim Khan (P. W. 10), father of two of the murdered men. The con victions and sentences for the offence of attempted murder were maintained. This is an appeal by special leave from the judgment of the High Court. The case for the prosecution was that one pehar after sunset on 3rd April, 1952, when Qaim Khan who was having a mosque constructed near his katha was sleeping close to the construction and his two masons, deceased Amir Muhammad and witness Luquman and one of the other two deceased persons Murad, were sleeping in front of the kotha at some distance from the womenfolk (P. Ws. 11 and 12 and another) while deceased Muhammad Nawaz was sleeping inside the kotha, the three appellants carne, Talib armed with a spear, Farid with a ehhavi and Nura with a Bang and committed the offences of which they were convicted. The evidence was that these appellants first attacked and killed Amir mistaking him for Qaim and then they attacked Luqman and caused him injuries but desisted from killing him on his begging them to spare his life as he was a mason who had come to earn his livelihood, that appellants Yalib and Farid then turned against Murad, chased and killed him, while appellant Nura was standing near witness Luqman, that thereafter Talib and Farid joined Nura, who in the meantime had moved to the kotha and was keeping guard at its entrance and all the three then entered the kotha, that Muhammad Nawaz managed to escape from there but the three appellants chased and overtaking him killed him. The motive for this massacre was said to be enmity between the appellants on the one hand and Qaim Khan and his two sons Murad and Muhammad Nawaz on the other, owing to the following reasons. Mst. Sattan, a sister of appellant Farid had been married to , deceased Murad while the deceased Muhammad Nawaz hid married Mst. Muridan a niece of appellant Farid. In consideration for these marriages fyMst. Ghulam Fatima (P. A. 11) daughter of Qaim was married to a nephew. of appellant Farid who died a year prior to the occurrence. These marriages had not been consummated and the appellant who are cousins inter se demanded that Murad and Muhammad Nowaz should divorce their wives, but the latter declined to do so. one Rajba, the husband of appellant Nura's niece, had ‑died by drowning some three years prior to the occurrence. In connection with Rajba's death, deceased Muhammad Nawaz was suspected on the ground that he was intimate with Rajba's wife.
No less than six eye‑witnesses, four of whom had been mentioned in the First Information Report were examined. There was also evidence with regard to motive. The defence was false implication on account of enmity. It was denied that the appellants demanded that Mst. rattan and Mil. Muridan should be divorced or that deceased Muhammad Nawaz was suspected in connection with the death of Rajba. The injuries found on the victims could have been caused with sharp‑edged weapons and not by any blunt weapon like a dang, but the participation of Nura in this triple murder was spoken to by the prosecution witnesses.
The Sessions Judge accepted the case for the prosecution, but with regard to the sentence he made a discrimination between Talib and Farid on the one hand and Nura on the other observing as follows:
"According to the prosecution Nura, accused, did not chase Murad and obviously was not responsible for any injury to him resulting in his death. Recovery of a lath from the kotha Muhammad Nawaz by the police would suggest that Nura's lathi was left there when Muhammad Nawaz ran from there and was chased by the three assailants, though the witnesses stated that Nura had been seen with a lath while chasing Muhammad Nawaz. The death of none of the three victims was due to a laths blow. Hence Nura may not be awarded the capital sentence.
As regards Talib and Farid, accused, no sympathy can be shown to them. They killed a stranger while asleep, mistaking him for their chief enemy Qaim Khan, whose two sons Murad and Muhammad Nawaz were ferreted out of their home like rats from their holes, chased and killed by them in a cruel manner. Each of them deserves the capital sentence."
The learned Judges of the High Court accepted the conclusions of the Sessions Judge on the merits of the prosecution case and confirmed the convictions imposed on the appellants. As regards the sentence they took the view that there were no mitigating circumstances which would call for leniency in, the matter of punishment and that the Sessions Judge was not justified in giving Nura the benefit of the lesser sentence. They observed :‑
"These were obviously pre‑planned murders and Nura accused had assisted the other two accused actively in murdering Murad and Muhammad Nawaz. According to the evidence he had stood guard on Muhammad Nawaz, while his two co‑adjutors were engaged in killing Murad. He was observed by the Privy Council in discussing the provisions of section 34, P. P. C. they also serve who stand and wait'.
We are unable to find any reason in law for withholding the normal penalty of death in Nura's case."
The main contentions of the learned Advocate for the appellants before us were : (1) that the evidence for the prosecution was unsatisfactory, that there was delay in the lodging of the First Information Report and that therefore the Courts below should not have believed the witnesses, and (2) that the Sessions Judge had given cogent reasons for not imposing on Nura the sentence of death and the High Court should not, therefore, have interfered with his sentence. Regarding the first contention it is not necessary to discuss the facts of the case as the points urged in this respect relate mainly to the assessment of weight of evidence which was the province of the Courts below, and none of those points, in my opinion, attract the special jurisdiction which this Court exercises in criminal matters. The evidence was carefully examined by the learned Judges and the appellants I think have been rightly convicted.
In the other contention also I see no merit and in coming to this conclusion I regret that I am unable to agree with my Lord the Chief Justice.
In respect of convictions for offences punishable with death, section 367 (5), Cr. P. C., makes it obligatory on the trial Curt, if it passes a sentence other than that of death, to record its reasons why a sentence of death is at imposed. This provision indicates that the Legislature regarded death as the normal sentence in such cases and intended to provide against the arbitrary exercise of the discretion to pass the lesser sentence ; but what reasons would justify a departure from the normal sentence is not indicated. The reasons given by the Sessions Judge for not passing the death sentence are, however, not conclusive but are open to revision by the High Court under section 439, Cr. P. C., as are other sentences passed by the subordinate Courts: and the discretion of the High Court to enhance sentences is unfettered in the sense that there are no directions in the section as to the grooves into which the discretion is to run. The relevant words of the section are may enhance the sentence'. This, however, does not mean that the discretion can be exercised arbitrarily or according to whim and fancy. Like all other judicial discretion, this discretion also should be. exercised according to the rules of reason and justice ; but no definite rules about its exercise can be laid down as it is not possible to foresee the variety of circumstances in which the discretion has to be exercised. Broad principles, however, can be indicated, and that has been done by the High Courts of this sub‑continent. One such indication is that sentences imposed by subordinate Courts should not be enhanced merely because the High Court, if it was trying the case, would have passed a different sentence, but that it should interfere and substitute its discretion for that of the subordinate Courts only when the sentence is so manifestly inadequate that it has led to a miscarriage of justice In Emperor v. Mangal Naran (I L R 49 Born. 450) and Gunduthalayan alias Thadan (I L R 53 Mad. 585) it was observed that the lesser sentence should not be enhanced to one of death unless the latter sentence is in the circumstances of the case. the only possible sentence' which expression, 1 take to mean, the only sentence that can reasonably be passed on the facts of the case. In some decisions lesser sentences of transportation for life were not interfered with because the accused so sentenced were young and acted at the instigation of their co‑accused who were in a position to influence them. It has been invariably observed that the power of enhancement should be sparingly used. These and several other restrictions have been imposed by the High Courts on themselves though the Code gives them unfettered discretion, because the trial Court has better opportunities of dealing with the delicate question of sentence than a Court of revision and, therefore, its discretion should be preferred as far as possible. The unfettered discretion has thus been settled by practice which, I think, should not be departed from except for strong reasons. As long as the High Court exercises its discretion in enhancing the sentence judicially on recognised principles and not arbitrarily and no miscarriage of justice has resulted, there can, I think, be so reason for interfering with its discretion.
In my opinion the exercise of the discretion by the High Court to the present case was not such as would justify interference by this Court. As observed by tile learned Judges these murders were pre‑planned by persons who had a motive to commit them. The plan miscarried as far as Qaim Khan was concerned but that the appellants intended to kill him and that Amir Muhammad was killed by mistake is clear from the evidence. In referring to the non‑participation of Nura in the attack on Murad as a point for imposing the lesser penalty the Sessions Judge appears to have overlooked the fact that Nura had a special grudge against Muhammad Nawaz and while Murad was being attacked Nura moved to the kotha to keep guard to prevent the escape of Muhammad Nawaz. When Tahb and Farid came there he joined them in entering the kotha and pursuing Muhammad Nawaz on his managing to escape from there. Medical evidence no doubt indicates that none of the victims was hit with. a dang and on that basis the contention that Nura did not use his dang has force in it; but that by itself does not reduce his criminality. The part played by him in this outrage was sufficient to make him an active l, participant in the crime. If participation in the actual infliction of the injuries is to be the criterion for the imposition of the extreme penalty of law, then a person organising and supervising the murder can by engaging others, to do the actual killing escape the penalty of death. It is hardly fair that the person mainly responsible for the crime H should be let off with a lighter punishment while those employed by him are sentenced to death. Courts have to be very careful in discriminating between the various accused in the matter of punishment ; otherwise the confidence of the public that the processes of Courts of justice ensure fair play and impartiality would be shaken . No question of youth or influence by others arises in this case as Nura is the oldest of the appellants and there is nothing on record to show that he acted under the influence of others. In the circumstances of the case there seems to be no justification for discrimination between him and the other appellants with regard to the sentence. I, therefore; consider that the enhancement of his sentence was justified.
It was also argued by the learned advocate for the appellant that Nura's sentence should riot have been enhanced on a private application. But there is nothing in section 439 Cr. P. C., to support this contention. The opening words of the section are "in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge the High Court may in its discretion . . . ." The words which otherwise comes to its knowledge' are in my opinion wide enough to include private applications. If the intention of the Legislature was that the High Courts should act in revision only on a petition filed by the Crown or on a report received from the Sessions Judge or the District Magistrate there would have been a clear direction to that effect in the Code. The learned advocate relied on the decision of the Bombay High Court in Emperor v. Mangal Naran where it was observed by Macleod, C. J., that speaking for himself he did not think that a private party was entitled to come up to the High Court and ask it to enhance the sentence passed by the subordinate Court and that his remedy was if he considered the sentence unduly lenient to draw the attention of the Government to that fact. It was also observed that it should be definitely ruled as a matter of practice that no applications by a private party to enhance the sentence should be entertained. But no reasons fog this conclusion are given in the judgment. It is no doubt true that it has been the policy of the High Courts to discourage such applications, but there can be no absolute rule that action should not be taken on a private application for enhancement of sentence. In Ata Muhammad and another v. Khanun and others (A I R 1938 Lah.116) while observing that it was the policy of the Lahore High Court not to enhance the sentence in criminal cases on a petition by a private party, it was stated that that was not an invariable rule; and in that particular case the learned Judge observed that even without the application before him he would have of his own motion issued a notice to the accused after hearing the appear. It appears to me that it does not matter in what manner the proceeding comes to. the notice of the High Court long as there is manifestly a ground for interference. It cannot be said that when a High Court is satisfied that enhancement of sentence is required in the interest of justice, it should nevertheless stay its hands merely because it has been moved by a private party.
I would, therefore, dismiss this appeal.
.‑For the purposes of this judgment, the following statement of the facts, as found by the Courts below, will be sufficient. The crime was deliberately planned and was carried out at night, by the three accused persons Talib and Farid who were armed with sharp weapons and Nura who had a lathi. The intention was to kill one Qaim, in whose house the attack was made, along with his two sons Murad and Muhammad Nawaz. In the darkness, the first person to be killed was a stranger, a tarkhan named Amir Muhammad who was, spending the night in Qaim's house. He was killed almost soundlessly, with a spear thrust in the neck, and the next to be attacked was 'his companion, a tarkhan named Luqman, who was spared serious injury when he declared that he was a stranger Nura, however, stood guard over him while his companions chased Murad and killed him. In the meantime, Muhammad Nawaz raised a cry from inside the kotha where he was sleeping, and instantly Nura ran to the door and stood guard until Talib and Farid returned after dealing with Murad. Then all three entered the korha and attacked Muhammad Nawaz, who defended himself for a time. There was an exchange of blows inside, as shown by the finding of a kulhari and a lathi inside the kotha. Muhammad Nawaz managed to break out of the kotha but was instantly pursued by all three assailants. His body was found at a distance of 25 karams from the house. The final attack on him was not witnessed by anyone, but the assailants returned to the house to make a final search for Qaim, an.l thii being unsuccessful, they left the place. There were no less than six eye‑ witnesses of these occurrences. The reports of the examination post mortem of the bodies of Amir Muhammad, Murad and Muhammad Nawaz, and of the medico‑legal examination of Luqman make no mention of any such injury as could have resulted from a blow with a blunt weapon.
The trial Judge in a lengthy judgment, considered the evidence and came to the conclusion that the murders were deliberate and the case was proved by reliable evidence. He convicted each of the accused persons under section 402/34 and awarded death sentences to Talib and Farid' regarding whom he observed as follows:‑
"They killed a stranger while asleep mistaking him for their chief enemy Qaim Khan; whose two sons Murad and Muhammad Nawaz were ferreted out of their home like rats from their holes, chased and killed by them in a cruel manner'. Each of them deserves the capital sentence."
However, he awarded the lesser sentence of transporation of life to Nura, on the basis of the following argument:‑
"According to the prosecution Nura accused did not chase Murad, and obviously was not responsible for any injury to him resulting in his death. Recovery of a lathi from the kotha of Muhammad Nawaz by the police would suggest that Nura's lathi was left there when Muharnmad Nawaz ran from there and was chased by the three assailants, though the witnesses stated that aura had been seen with a lathi while chasing Muhammad Nawaz. The death of none of the three victims was due to a lathi blow. Hence Nura may not be awarded the capital sentence."
The three convicts appealed to the High Court where, on behalf of Qaim Khan, a petition was moved under section 439 Cr. P. C. that the sentence of Nura be enhanced to death. Noticed was issued to Nura, and the petition was heard. along with the appeal. The appeal was dismissed, and the petition was accepted, with the result that Nura's sentence was enhanced to death, on the following grounds:‑
"The learned Sessions Judge has thought it fit to give the. benefit of the lesser penalty to Nura accused, but we do not see that there was much justification for it. These were obviously pre‑planned murders and Nura accused had assisted the other two accused actively in murdering Murad and Muhammad Nawaz. According to the evidence he had stood guard on Muhammad Nawaz, while his two co‑adjutors were engaged in killing Murad. As was observed by the Privy Council in discussing the provisions of section 34 P. P. C., "they also serve who stand and wait." We are unable to find any reason in law for withholding the normal penalty of death in Nura's case."
The question for consideration in this case is whether the order of the High Court enhancing Nura's sentence is a proper order in view of the provisions of the Cr. P. C. bearing on the point, and the facts of the case.
It is provided by section 302 P. P. C. that "whoever commits murder shall be punishable with death or transporta tion for life and shall also be liable to fine." The discretion allowed to a Court passing a sentence under section 302 in regard to the choice of the main punishment, would however appear not to be absolute. By subsection (5) of section 367 Cr. P. C., it is provided that "if .the accused is convicted of an offence punishable with death and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed." It is not necessary to enter upon an examination of all the reasons underlying this provision. The principal reason might be thought to be that, since the Legislature had reserved the supreme penalty for offences of the most heinous character, which had been defined with precision with respect to intention as well as execution, the lesser penalty should always be justified by good reasons, of a nature arising out of the' facts of the case.
It goes without saying that a Court of first instance, which enjoys the advantage of having the case laid bare before it in all its details, of seeing the witnesses being examined and cross‑examined, and of observing personally with a few necessary exceptions, all the principal characters in the incident, is in a far better position to estimate the exact degree of criminality of every person who participated in the crime, than the appellate Court which only sees the case on paper, and hears it to the extent that is thought necessary by counsel for the purpose of the establishing or countering an allegation of error. Yet, finality cannot be allowed to the opinion in this behalf, of the trial Court, in view of the clear provision contained in section 439 Cr. P. C. empowering the High Court in its discretion to enhance the sentence. The High Court is thus invested with a duty as well as power to review the reasons given by the Sessions Judge for imposing a particular sentence which the High Court regards as inadequate. The question to be considered in the present case is whether the interference by the High Court with the discretion exercised by the trial Court is to be sustained, as being both proper, and within the powers of the High Court. It is urged on behalf of Nura that since the grounds expressed in the Sessions Judge's judgment for awarding the lesser penalty to Nura are not wholly devoid of reason, the High Court was not within its powers in interfering to enhance the sentence.
Although a sentence of transportation for life is a very substantial punishment, even if it be undergone in a prison within the province, as is the rule nowadays, there can be no question but that in point of severity it cannot bear comparison with a sentence of death. Bearing in mind the implication of the provision contained section 367 (5) Cr. P. C., it follows that to justify the imposition of the lesser sentence on certain persons who have participated in a transaction along with others to whom the death sentence has been K awarded, there must be a material difference in the degree of) criminality found against the first‑mentioned person, when compared with that found against others who have been sentenced to death. Such a disparity has been concedes on the ground of youth, or that a particular accused person played a lesser or subsidiary part, or that his actions displayed hesitation or lack of determination, attributable to repugnance or fear. The possible variety of circumstances is infinite; no exhaustive enumeration is possible. Despite the law being well‑equipped with provisions which place the liability of such persons on a par with that of the main actors, the Courts freely give effect to their opinion of the criminality of each individual participant in apportioning punishment. Ordinarily; the law lays down wide limits within which punishment may be imposed, and therefore punishments appropriate to varying degrees of guilt may be applied with a high degree of exactness. In the case of murder, however, the choice is very severely limited.
The exercise of discretion by the original Court in choosing whether to impose the death penalty or the lesser sentence of transportation is consequently to be regarded as a delicate and difficult operation, which, owing to his immediate and comprehensive acquaintance with the case, the trial Judge is peculiarly equipped to perform. The greatest weight should therefore be allowed to the choice which he ' exercises, but the function of the High Court under section 439, which goes with its power to enhance the sentence, remains unaffected. It is indeed for the better performance of this function that the law requires that reasons for the choice exercised by the trial Court shall be expressed in writing.
Counsel for the appellant Nura has cited a considerable number of decisions of the various High Courts in undivided India which purport to lay down principles by which the High Court should be governed, in regard to the exercise of its power to enhance the sentence awarded by a subordinate Court. The High Court of Bombay in the case Emperor v. Mangal Narain (I L R 40 Born. 450) and the High Court of Madras in the case Gunduthalayan alias Thailan ( I L R 53 Mad. 585) have expressed the opinion that a sentence of transportation for life should not be enhanced to death by the High Court except in cases where the sentence of death is the only possible sentence. By this is probably meant that the facts of the case should be such that no ground of any kind can be advanced in favour of imposing the lesser penalty which could possibly appeal to any reasonable person.
Two judgments of the Lahore High Court should also be mentioned which support to lay down principles for the guidance of the High Courts in greater detail. In the case of Uttam Singh (A I R 1938 Lah. 260) a Division Bench of the Lahore High Court had before it a petition filed on behalf of the Local Government praying that death sentences be awarded to two persons who had been given the lesser sentence of transportation in the same case in which one person had been awarded the death penalty. The facts of the case are not without significance in relation to the present discussion. The three accused person were alleged to have attacked one Jindar Singh and to have inflicted a number of injuries on him, When Jindar Singh raised an alarm. his brother Indar Singh appeared on the scene and the assailants turned on him and caused him nine injuries, of which eight were described as minor injuries. The ninth was a spear thrust in the chest, inflicted by the accused Uttam Singh which was satal. The Division Bench observed that "in these circum stances it cannot be said that the learned Sessions Judge was patently wrong in giving the lesser sentence to Ghanaya Lal and Mulkh Raj" Mulkh Raj was only 18 years of age which fact was also taken into consideration by the Judges, who went on to observe as follows :‑‑
"We are of the opinion that the power to enhance sentences should by sparingly exercised by this Court and sentences should be enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that this Court, had it been trying the case might have imposed the capital sentence, is not sufficient reason for enhancement."
It is necessary to observe, and I do so with respect, that the last sentence could not have had any reference to the case before the learned Judges' who had already found that the imposition of the lesser penalty on Ghanaya Lal and Mulkh Raj could not be said to be patently wrong. On the facts of that case, it might even be though that Uttam Singh had acted in excess of the intentions of his companions, in view of the unimportance of the injuries other than the fatal injury. Yet, no exception can be taken to the declaration that the power to enhance the sentences should be sparingly exercised. That seems to me to follow from the respect which is due to the judgment exercised by the trial Judge in assessing the punishment appropriate to the crime. Nor does it impose an unjustified fetter on the unqualified discretion which is vested in the High Court under section 439, to say that interference for the purpose of enhancement should be confined to cases where not to enhance would lead to a serious miscarriage of justice." Where the sentence awarded can be regarded as substantially just, it would obviously not be necessary in the interest of justice that it should be enhanced. Even where the question before the Court is one of enhancement to death, requiring by its very nature the utmost circumspection in the exercise of the discretion, the principle laid down in this judgment may, in my opinion, be followed with perfect safety.
The second case from the Lahore High Court is that of Manna Singh (A I R 1937 Lah. 215). There, the sentence awarded by the trial Court was of a year's imprisonment and fine, which had been reduced to six months imprisonment by the appellate Court. The Local Government petitioned for enhancement, and the petition was rejected. It was observed that enhancement could only be ordered by the High court for exceptional reasons, that the High Court would not enhance a sentence which was substantial, even though it might be inadequate and finally that no enhancement would be ordered by the High Court except where the sentence was so grossly inadequate as to amount to a miscarriage of justice. I understand these observations in a sense not different from those made in the case of Uttam Singh, and I respectfully concur in the view the power of enhancement should be exercised sparingly, and only to correct the serious miscarriage of justice which results where the punishment is inadequate to the point of being wholly incommensurate with the crime found to have been committed. Where the offence is punishable with imprisonment only, and a substantial sentence has been imposed, such a conclusion of gross inadequacy could obviously, be reached only in an exceptional case. In the case of Manna Singh, there was a single accused person, and the circumstance of comparison between the acts of different persons participating in the same crime, which was a feature of the case of Uttam Singh and is also found in the present case, was there absent.
Approving the principles derivable from the two Lahore cases which have just been considered, it remains to examine the question whether the action of the High Court in the present case cannot be sustained in the light of these principles. 1 will start with the assumption that where the Legislature has conferred upon a Court a discretion to do a certain act, and has imposed no qualification of any kind in regard to the exercise of that discretion, it is not permissible judicially to impose limits upon the exercise of that discretion. That view was expressed by a Division Bench of the Lahore High Court' in the case of Abdul Ghani (P L R 1 Lah. 131 (D B)), in respect of the discretion vested in the High Court under section 439 Cr. P. C. It may be of advantage to repeat here the concluding portion of a passage from the speech of Viscount Simon, L. C., in the case of Blunt v. Blunt (L R 1943 A C 517) which is reproduced in the judgment in Abdul Ghani's case:
"I would adopt the view of the Court of Appeal, expressed a quarter of a century ago, that 'where Parliament has invested the Court with a discretion which has to be exercised in an almost inexhaustible variety of delicate and difficult circumstance:, and where Parliament has not thought fit to define or specify any cases or classes of cases fit for its application, this Court ought not to limit or restrict that discretion by laying down rules within which alone the discretion is to be exercised, or to place greater fetters upon the judge of the Divorce Division than the Legislature has thought fit to impose'; Wickins v. Wickins (L R (1918) P. 265, 272) per Swinfen Eady, M. R. The utmost that can be properly done is to indicate the chief considerations which ought to be weighed in appropriate cases, as helping to arrive at a just conclusion."
It seems to me to follow that this Court should always incline in favour of suppporting a discretion of this kind exercised in a particular case by the High Court, unless it can be sure that that discretion has been erroneously exercised o cannot be supported in reason. On considering the facts o the present case, and the reasons given by the trial Judge and r' by the learned Judges of the High Court for their respective views in relation to the proper sentence for the accused Nura, I am clearly of the opinion that the view taken by the High Court is supportable, and that it is in accordance with the principles derivable from the two Lahore High Court judgments which have been considered above.
The learned Judges are entirely right in pointing out that Nura took an active part in the killing of Murad as well as Nawaz. It seems that no injury was found at the postmortem examination on the person of any of the three deceased, which could have been caused with a lathi but it is quite clear that even if Nura failed to reach his weapon to the person of any of the three victims, he nevertheless by his actions, gave direct and necessary assistance to Talib and Farid in accomplish ing the .deaths of these two men. Particularly as there were only three assailants, and the intention clearly was to kill three able‑bodied men, the assumption must be that each of the assailants came prepared to play a full and active part. When Nura stood over Luqman while his companions despatched Murad, he was actively assisting in the killing of Murad. When he stood guard at tile door of the kotha from which the voice of Muhammad Nawaz, one of the intended victims, was heard, he was actively ensuring that Muhammad Nawaz should not escape, and his actions thereafter in entering the kotha and joining in the attack upon Muhammad Nawaz, and chasing him when he escaped from the kotha clearly exhibit a criminality which in no way falls short of that for which Talib and Farid have been held liable to forfeit their lives. It may be that when Muhammad Nawaz was cornered or brought down, Nura stood aside so that the more efficient weapons of his companions should be brought into play for the quicker despatch of the victim, but his proved actions are clearly of such a nature that even such behaviour on his part cannot absolve him from carying a direct responsibility of an active nature for the deaths of the three men. The criminality thus being on a par as between him and his companions, it would indeed be a serious departure from the duty of dispensing justice with impartiality if Nura were to be given a sentence of imprisonment which, notwithstanding its extended duration. bears no comparison in point of severity with the dreadful finality of the death sentences of Talib and Farid.
The point was sought to be made, on behalf of the appel lant Nura, that the High Courts have frequentlv expressed themselves as not being in favour of entertaining private petitions seeking enhancement of sentences awarded to accused persons. This can only have been on grounds of policy, e. g., to prevent abuses in legal practice, or to assert the principle that the primary duty of bringing such matters before the High Court falls on the Crown. Such observations are without effect on the efficiency of the relevant legal provisions. It is plain from the very wording of section 4 9 Cr. P. C. that it is Q competent to a High Court, upon a private application by which a particular proceeding is brought to its notice, to take action in a proper case to enhance a sentence.
For these reasons I consider that the action of the High Court in enhancing the sentence awarded to Nura is justified in the present Case, and I would therefore dismiss the appeal so far as he is concerned. It is a source of regret that I have not been able, in this respect, to accept the view which has commended itself to my Lord the Chief Justice. As for Talib and Farid, no argument that can be of the slightest advantage to them appears to me to arise out of the record of the case, and I would therefore dismiss their appeal as well.
‑I agree that the appeal be dismissed.
ORDER OF THE COURT
In accordance with the view of the majority, the appeal is dismissed.
A. H. Appeal dismissed.
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