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Criminal Appeal No. 7 of 1960, decided on 4th April 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi, dated the 15th May 1959, in Confir mation Case No. 7 of 1959 ; Criminal Appeals Nos. 69-72 of 1959).

Constitution of Pakistan (1956), Art. 163 (3)-" Doing com plete justice "-Supreme Court may suo motu enhance sentence after notice to accused-appellant in course of appeal.

The accused-appellants were convicted under sections 302, 307 and 333, P. P. C. and sentenced to death and certain terms of imprisonment. In the Supreme Court they were given benefit of doubt and the conviction and sentences of death under section 302, P. P. C. were set aside. In view of the seriousness of the offence, however, the Court, after notice, enhanced the sentence of 7 years' rigorous imprisonment under section 307, P. P. C. to one of transportation for life, observing;

"Sentence of 7 years' rigorous imprisonment is wholly insuffi cient as a penalty for the particular crime of which the appellants have been found guilty. Their whole conduct exhibits an enormity which in our opinion cannot be properly visited with any punishment less than the maximum allowed by law. We, there fore, propose in the exercise of power .vested in us by Article 163, subsection (3) of " doing complete justice in any cause or matter" to enhance the punishment awarded to the appellants under section 307, P. P. C."

M. Z. Kitchlew, Advocate Supreme Court for Appellants.

Jamil Hussain Rizvi, Advocate-General, West Pakistan, (Ataullah Sajjad, Advocate Supreme Court with him), instructed by Ijaz Ali Attorney for Respondent.

Date of hearing : 22nd March 1960.

The appellants in this case are Mir Khan, Yusaf, Hakim and Mulin. They stand convicted under sections 302, 307 and 333, P. P. C. Briefly, the facts are that these four persons were under-trial prisoners in the Sub-Jail of Tando Adam along with some 32 others, and on the 3rd June 1957, taking advantage of an opportunity, they along with two others named Sumar and Ghulam Kadir picked up six rifles and a quantity of ammunition from the verandah of the Sub- Jail and escaped. They were fired at and Ghulam Kadir was hit but the other five escaped. They were pursued by several parties of Police. The record does not show what happened to the man Sumar, but as to the present four appellants, it seems that they were traced to a place known as Nazikabad and finally were trapped in a garden belonging to one Sulaiman. A constable Muhammad Alam giving evidence as P. W. 1 described the position as follows :---

" the Police and S. P. R. parties were on three sides while the accused were on fourth side".

The main pursuit party of the Police had set out in the early morning at 2 a.m. and it seems that they came up with the escaped persons at about 7 a.m. There was exchange of firing which lasted from 9 a.m. to nearly 5 p.m. The local Police were joined at about 3 p.m. by S. P. R. (meaning probably some body of Rangers) who were armed with a Bren-gun. As a result of the firing one of the accused persons Mir Khan was hit, and a constable Sandhe Khan P. W. 4 was also hit and sustained grievous hurt. This constable belonged to the Rangers and he admitted in evidence that his party was carrying and using a Bren-gun, which is designed for rapid automatic rifle firing.

Three persons not belonging to either the Police side or the side of the accused were killed in the course of the firing. One named, Kambar had six gunshot wounds on his body, which were described as the result of 4, shots ; all were due to rifle bullets and were closely grouped on the right side of the back, the right elbow and the left back, indicating rapid and probably automatic firing from behind the victim and in the line of his right side. Another man who died was Piaro, who had a single gunshot entrance wound, and a corresponding exit wound on the left back and shoulder. The third man was one Sono, who had an entrance wound on the right side of his back and a corresponding exit wound on the other side. Now, the witness Muhammad Alam has in a bald way stated that these three men were killed as the result of the shots fired by the accused persons. The evidence given by other prosecution wit nesses clearly raises the possibility that the shots might have been fired from the Police side. In the case of Kambar, for example, the grouping of the rifle bullets which entered his body serves as a firm indication that his wounds were the result of rapid automatic firing which could only had been by the Bren-gun carried and used by the Rangers. There is no evidence as to how Sono received his injuries, but as to Piaro, Head Constable Shah Muhammad, P. W. 2, has clearly said that when the accused persons ran into Sulaiman's garden his party of six Police Officers divided into two groups and went to opposite sides of the garden. Piaro was standing close to Shah Muhammad's group, when he was hit by a shot and fell down. Shah Muhammad said that " when Piaro received the shot the other three constables were opposite to us " and again that " at the time when Piaro was shot my three companions, that is Said Rehman, Khurshid, and Farid Khan were standing towards the west, while the shots which had hit Piaro came from another direction." On being asked to point out that direction, the witness pointed to the South-West. The difference between the two directions is clearly not sufficient to hold beyond doubt that the shot which killed Piaro must have been fired by the accused persons. The two parties were firing at each other, and since the accused were the only persons whom the Police party expected to find inside the garden, it would seem to be very likely that the Police would fire at any man whom they could make out inside the garden. That is not to say that the accused persons would not do the same thing, but at any rate the circumstances are sufficient to raise a substantial doubt as to whether Piaro was not hit by a shot fired by one of the Police constables, namely, Said Rehman, Khurshid and Farid Khan who were on the opposite side of the garden to the place where Piaro was standing when he was killed.

Therefore, it seems to us difficult to sustain the conviction of the four appellants under section 302, P. P. C. Yet, it is clear that they were engaged at the time in a criminal act of the utmost seriousness. They had already been guilty of a very grave crime against law and justice when they escaped from proper custody taking away Government rifles and ammunition with them. Their duty was to surrender to the authorities when they found that they were being followed, but instead they engaged in a contest of rifle fire with the Police. In the course of that firing Sandhe Khan was hit by a rifle bullet, which caused him grievous hurt. Sandha Khan has himself described the operation which resulted in the capture of the four accused persons. The Rangers force to which he belonged was closing in around the culprits firing shots with their Bren-gun, and after warning the other Police to stop firing, the party advanced towards the accused persons who saw them and one of them fired a shot which struck Sandhe Khan. On this evidence, it is clear that the injury of Sandhe Khan resulted from the firing by the accused persons, who would in any case be guilty under section 307, P. P. C. since it is clearly proved that they fired a number of rifle shots at the Police who were attempting to capture them in the discharge of their duty. But the causing of grievous injury to Sandhe Khan in the course of an attempt to murder him and other Police constables attracts the highest penalty provided by section 307, P. P. C. namely, transportation for life. The trial Court which had pronounced sentence of death against each of the accused persons under section 302, P. P. C. did not feel the necessity of imposing the maximum penalty under section 307, P. P. C. On the view that we take of the case, it should be dealt with as if there was no charge against the appellants of murder, and when that is done, it appears with the utmost clearness that the circumstances attract the highest penalty which the law allows.

It was for this reason that at the conclusion of the arguments with reference to the charge of murder we felt the necessity of issuing notice to the appellants to show cause why their sentence under section 307, P. P. C. should not be enhanced. Mr. Zikria Kitchlew appearing on their behalf has only urged that the sentence of 7 years' rigorous imprisonment awarded by the trial Court under section 307, P. P. C. cannot be said to be grossly inadequate.

In our opinion the sentence of 7 years' rigorous imprisonment is wholly insufficient as a penalty for the particular crime of which the appellants have been found guilty. Their whole conduct exhibits an enormity which in our opinion cannot be properly visited with any punishment less than the maximum allowed by law. We, therefore, propose in the exercise of power vested in us by Article 163, subsection (3) of " doing complete justice in any cause or matter " to enhance the punishment awarded to the appellants under section 307, P. P. C. The appellant Mir Khan ,has been separately awarded a sentence of 5 years' rigorous imprisonment under section 333, P. P. C. to run concurrently with his sentence under section 307, P. P. C. We see no reason to interfere with that conviction and sentence.

In the result, we allow this appeal to this extent that we set aside the conviction of the appellants under section 302, P. P. C. and the sentence of death awarded to each of them under that section. We confirm the conviction and sentence of Mir Khan appellant under section 333, P. P. C. We also confirm the conviction of all the appellants under section 307, P. P. C. read with section 34, P. P. C. and we enhance the sentence of each of them to transportation for life.

A. H. Order accordingly.

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