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Criminal Appeal No. K‑3 of 1962, decided on 25th March 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 31st August 1962, in Confirmation Case No. 24 of 1962/Criminal Appeal No. 117 of 1962).

Granted to consider propriety of sentence of death‑Constitution of Pakistan (1956), Art. 160.

(Murder)‑Deceased, innocent stranger, merely asking accused to "close knife" and' stop chasing his intended victim‑Attack on deceased unpremeditated (single fatal injury in abdomen with knife)‑Sentence of death not open to exception (S. A. Rahman and Fazle‑Akbar, JJ., Cornelius, C. J. contra being of view that though offence was murder, the fact that accused was "fully aroused" by previous quarrel, coupled with "excitement of chase" and "interference" by deceased, which "accused thought unjustified", lesser sentence, supplemented by fine, to be made over to deceased's relatives, might have met the requirements of case)‑Criminal Procedure Code (V of 1898), S. 367 (5)‑Trial Court's duty to state reasons for not imposing death penalty where prescribed‑Provision not applicable to criminal appellate Courts, though, as part of their functions, such Courts are obliged to give reasons when they alter a sentence imposed in compliance with law by original Court‑Penal Code (XLV of 1860), S. 302 [Jawed Iqbal v. The State Criminal Appeal No. 105 of 1962 distinguished (Judgment of S. A. Rahman, J.), Abdur Rahim v. The State P L D 1960 S C 401 ref. (Judgment of Cornelius, C. J.)].

Azizullah K. Sheikh Advocate Supreme Court instructed by no Attorney (being a Jail Appeal) for Appellant.

Abdul Kadir Sheikh Senior Advocate Supreme Court (Zahoorul Haq Advocate Supreme Court with him) instructed by Ijaz Ali Attorney for Respondent.

Date of hearing: 25th March 1963.

‑This appeal was admitted to consider the question of the propriety of the death sentence awarded to the appellant Dost Muhammad, for murder.

The relevant facts are these. Umar, a brother of the appellant, runs a hotel in Karachi at which Abdul Samad, P. W. 1, was employed as a servant. On the 31st of May 1961, Umar left his hotel leaving Abdul Samad in charge of the counter. He, however, gave him instruction that if his brother, the appellant, came and demanded money, his demand should not be complied with. At about 8‑30p.m, the appellant came to the hotel and finding Abdul Samad in charge of the hotel, he asked him to give him some money. Abdul Samad told him to wait till his brother's return his was reserved by Dost Muhammad who pulled away Abdul Samad from the counter and slapped him. At the same time, he brought out a knife. On this Abdul Sawad took to his heels and was pursued by the appellant. Ali Muhammad, deceased, was coming out of a mosque after saying his Isha prayers and saw Abdul Samad being chased by the appellant who had a knife in his hand. The deceased asked the appellant to close his knife and to give up the pursuit of Abdul Samad. The appellant charged the deceased with being a helper of Abdul Samad and promptly stabbed him in the abdomen. Ali Muhammad fell down and the appellant ran away from the spot.

The injured man was taken to the Police Station at once, where he gave a statement to the Sub‑Inspector. This was treated as the F. I. R. in the case and proved to be his dying declaration as well.

The injured man was examined by Dr. Nuzhat Ara Aziz, P. W. 6, at the C. M. C. Civil Hospital, Karachi. She found a cut on his nose with clinical fracture of the nasal bone and an incised wound 1 " x 1 with the omentum protruding out of it. 'The man died at 2‑20 a.m. the same night. The spleen had been ruptured under the incised injury in the abdomen and that had led to his death. The injury was obviously sufficient in the ordinary course of nature to cause death. The injury on the nose was probably due to his fall on some hard substance according to the doctor.

The conviction of the petitioner for murder is not challenged before us. The Courts below relied on the testimony of three eye‑Witnesses and the dying declaration of the deceased for holding him guilty under section 302, P. P. C. The only question that falls for consideration therefore is whether any circumstances appear in this case which would justify leniency in the matter of punishment.

It may be admitted that there was no previous enmity between the parties and therefore this was not a premeditated or pre‑planned murder. The appellant seems to have stabbed the deceased on the spur of the moment when the latter told him to stop chasing Abdul Samad. The deceased was an elderly man aged about 50 whereas the appellant is a young man of about 25. The eyewitnesses were unanimous in saying that all that the deceased did was to call upon the appellant to close his, knife and not to chase fight. The dying declaration of the deceased is also consistent with this account.

The defence of the appellant was a simple denial of the allegation that he had stabbed the deceased. He merely admitted that he bad a quarrel with Abdul Samad at the hotel that evening but the rest of the prosecution story was not acknow ledged to be true by him. No attempt was, however, made to rebut that story by any evidence in defence.

The deceased was unarmed and his mere exhortation to the appellant to cease the pursuit of Abdul Samad cannot be pressed into service as furnishing a mitigating circumstance such as would justify the infliction of the lesser punishment for murder provided by the law. There was not even an altercation between the deceased and the appellant preceding the attack on him. There was no exchange of abuse or hot words between them. The deceased had not attempted to restrain the appellant physically. He did not lay hands on him. His conduct merely amounted to tendering of advice to the appellant to desist from a high‑handed act. This cannot be construed into any kind of provocation offered to the appellant. I am unable to discover in this case the slightest excuse for the appellant to have given the fatal knife blow to the deceased in a vital part like the abdomen. The deceased seems to have been attacked for a well‑intentioned expression of a desire that violence be avoided.

Mr. Azizullah K. Sheikh who appeared for the appellant, invited our attention to a case decided by this Court in which the sentence was reduced from death to transportation for life, according to him, under similar circumstances. The reference is to an unreported judgment of this Court in Jawed Iqbal v. The State Criminal Appeal No. 105 of 1962, decided on the 22^nd November 1962. The facts of that case are different from those that obtain in the instant case. There the deceased had offered some kind of provocation to the accused, though inadvertently, by spitting out pan juice, which spoiled the trousers of the appellant. This was followed by an exchange of abuse between them and in the heat of the moment, on a sudden impulse, the accused in that case whipped out a knife and in quick succession inflicted two stab wounds on the deceased. In these circumstances it was held that the appellant was entitled to be given the benefit of the lesser penalty provided for the offence of murder. That case affords to my mind no parallel to the present one where the murder committed seems to be a wanton act of cruelty towards an elderly person who had not given any reasonable cause for offence to the appellant in the slightest degree. If the appellant had stabbed Abdul Samad to death, after chasing him, in the circumstances of this case, I have no hesitation in saying that he would have amply deserved to be hanged for the offence. If he transferred his malice to an innocent and innocuous intervener like the appellant, I cannot see that his liability in any way gets diminished.

The normal punishment for murder is death and if for an offence of this kind, the punishment of transportation for life is to be awarded, reasons have to be given for departure from the capital sentence, vide subsection (5) of section 367 of the Code of Criminal Procedure. The Courts below have agreed in holding that no mitigating circumstances exist in this case such as could have served as palliatives of the crime to any appreciable extent. I am, therefore, of the opinion that the capital sentence imposed on the appellant in the present case is not open to exception and requires no interference by this Court. I would, therefore, dismiss the appeal.

.‑I have had the advantage of reading the judgment of my learned brother S. A. Rahman, J. and I fully agree in his reason and conclusion. I would, however, like to add some observations of my own for the purpose of explaining why I cannot accept the views of my Lord the Chief Justice. The facts of the case have been fully stated by my learned brother Rahman, J. and I need not repeat them. Special leave granted by this Court was limited to the question of sentence only. It was argued that this was a case of a sudden fight and so the case fell within the 4th Exception of section 300 of the Pakistan Penal Code. In this case the appellant was chasing Abdus Samad and the deceased had no hand in it. The deceased who was coming out of a mosque, all that he did was to ask the appellant to stop fighting. His action did not indicate threat of any kind. Nor was there any fight between the appellant and the deceased. I cannot therefore, hold that the requirements of Exception 4 to section 300, P. P. C. have been established. In my opinion the appellant has been rightly convicted under section 302, P. P. C.

Now on the question of sentence I feel that lesser sentence is not called for because the appellant had no justification for killing an innocent person who merely asked him not to fight. This killing of an unarmed person who had not made even a threatening gesture was a murder of most cowardly nature. It is true that there was no premeditation to kill. I am also aware that in some cases where there is no premeditation or prior enmity the Courts have awarded lesser sentence. But in those cases at least the assault followed some quarrel or exchange of abuses. In the present case there are no extenuating circum stances whatsoever and the mere fact that the appellant may be a man of violent temper is wholly insufficient for not imposing the extreme penalty. Bearing all these points in mind I have arrived at the conclusion that the sentence of death in this case is an appropriate one, I would therefore, dismiss the appeal.

.‑When the appellant's Jail Petition was placed before me, for special leave to appeal, I recorded the following opinion :‑

"There is no room for doubt that the petitioner stabbed Ali Muhammad once in the stomach, and that the wound caused was necessarily fatal. But he bore no malice towards Ali Muhammad, in a personal sense; he was pursuing another man, who had offended him, when Ali Muhammad intervened, and in annoyance at being checked, he struck a blow at Ali Muhammad. The point needs examination whether this type of killing should be visited with the death penalty and I would grant leave accordingly".

We have now heard arguments in the appeal and have been taken through the record of the case, and at the conclusion I find myself, with some regret, in disagreement with my learned brothers on the point of the appropriateness of the death sentence, which has been awarded. It is enjoined upon Criminal Courts of original jurisdiction by section 367, Criminal Procedure Code that they shall, when convicting an accused person of an offence punishable with death, if the sentence of death is Lot imposed, state their reasons, why they do so. This provision has been construed as laying down that when the law prescribes the capital sentence for an offence, whether with or without a less alternative, that is the normal sentence for the offence, which may be imposed without reasons given, but if a lesser alternative sentence is imposed, that is abnormal, and reasons have to be given for awarding the alternative penalty. The requirement does not apply to Courts of appellate jurisdiction, but the imposition of a sentence is a judicial matter, and the task of making the punishment fit the crime is one requiring, in every case, a delicate exercise of the judicial function. It is an extremely rare case in which a human being offends against the life or property of another from a pure desire to commit the crime, unaffected by anything, which has moved towards himself from that other. It may be something immediate, in the nature of provocation, or even of assault levied. It may be that the occurrence, which gave rise to animosity is of earlier date, and the action is not invited by anything done or said on the spot by the victim. In the opinion, which I expressed when leave was granted, it was brought out that there had been some little action on the part of the deceased, which had excited the accused to act violently towards him In a general way, the question which arises in such cases is whether after account has been taken of the entire set of circumstances in which the act o violence was committed, it can be found that the criminality is o a kind which should be visited with the supreme penalty. The matter has to be taken as an incident between human beings, and judged at that level by those to whom the function is entrusted. An aspect which may be relevant in determining the punishment is as to its effect in the light of determent of others similarly placed, and where the sentence of death is not imposed, perhaps also in the light of reformation of the offending person.

The variety of circumstances in which acts of violence come to be performed by human beings against others is infinite, The law has attempted, with a high degree of success, to formulate the conditions in, which the causing of death shall fall in the category of culpable homicide not amounting to murder, in which case the maximum sentence that may be imposed is that of transportation for life. But it does not follow that cases of homicide not falling within these categories, which are defined with care in section 300, P. P. C. are all necessarily or by way of normality to be visited with the supreme penalty. There are cases, within those actions, which constitute culpable homicide amounting to murder, as defined by the law, where justification can be found for refusing to impose the death penalty. The criminal appellate Courts, when in cases of this kind they impose a sentence other than death are obliged, as part of their function, to state their reasons for altering the sentence imposed, in compliance with law, by the original Court. In the present case, the grounds, which seem to me appropriate for the imposition of the lesser sentence arise out of the circumstances of the case.

The principal evidence in the case is that of Abdul Samad, P. W. 1, who in the absence of the owner was in charge of a hotel belonging to Muhammad Umar, brother to the accused Dost Muhammad, when the latter arrived and asked him to hand over the money in the shop. Abdul Samad replied that Muhammad Umar had directed him not to give any money to Dost Muhammad, and refused the request. Thereupon, the accused slapped him and dragged him out from behind the counter, and then pulled out a knife. Abdul Samad ran towards a mosque, which is some 100 paces away with the accused in pursuit. Just then, the deceased Ali Muhammad, a total stranger, came out from the mosque and stopped the accused. Abdul Samad says that Ali Muhammad asked Dost Muhammad to close his knife and not to chase the other. Dost Muhammad said to Ali Muhammad "you are helping him" and at once stabbed Ali Muhammad in the stomach and Ali Muhammad fell down. Dost Muhammad then ran away. A witness Abdul Aziz, P. W. 2, supported this story in practically all details. It is supported also by the dying declaration made by Ali Muhammad at the Police Station, which is also the initial report in the case. He said that on his way home he saw Dost Muhammad fighting with Abdul Samad, and he stopped him, whereupon he took out a knife and stabbed him in the stomach "with intent to kill me".

The accused when questioned in the committing Court admitted that he had a quarrel with Abdul Samad who had been abusing a person named Nur Muhammad "who was keeping in his house Samad's divorced wife" and when Dost Muhammad asked him not to talk in that way, Samad had slapped him and he had retaliated with a kick and a fist blow and had also slapped him. Some persons intervened and he went home, and about half an hour later he heard that it was being said that he had killed Ali Muhammad. It is noteworthy that in the cross‑examination of Abdul Samad, it was not suggested to him that the quarrel was on account of Nur Muhammad, or that he himself had first attacked Dost Muhammad. It may be that the full circumstances of the quarrel between Abdul Samad and Dostt Muhammad were not investigated in the examination of the witnesses Abdul Samad and Aziz, because of the focus of interest being the attack on Ali Muhammad. The point however was one of some importance in determining the degree of criminality of the accused in respect of the death of Ali Muhammad. There is no doubt that Ali Muhammad intervened between Dost ‑ Muhammad and Abdul Samad and if Dost Muhammad had some justification for his action against Abdul Samad, e.g. if Abdul Samad had given offence by rudeness, or by some unpleasant suggestion, he being only a servant, then the annoyance from interference by a stranger in a quarrel where the accused thought that right was on his side would con ceivably be greater than if his act was pure high‑handedness:

However that may be, it seems clear that Dost Muhammad was greatly incensed against Abdul Samad, and was determined and prepared to do him serious physical injury. It was at that stage that Ali Muhammad intervened, and it is evident from Abdul Samad's statement that Dost Muhammad immediately got the impression that Ali Muhammad was intervening in support of Abdul Samad. The case is thus one of a man being in a state of passion against another, which may conceivably have been in part at least justifiable. His anger had been increased by the excitement of the chase. In that condition, a third person intervened. It is common experience that a person intervening in a hot quarrel between two others often attracts to himself an attack by both. To intervene successfully requires discretion and tact, for passion once aroused may fly out at unexpected angles. Taking the matter narrowly, in the light of the possible re‑action of a man situated as was Dost Muhammad, in the light of the available evidence, it seems to me that the conclusion must be reached that when he was already fully aroused by the previous quarrel, coupled with the excitement of the chase, there was an interference with him which he thought to be unjustified and being in a highly aroused state, he re‑acted by a f single act of extreme violence, namely, stabbing Ali Muhammad in the stomach. Since Ali Muhammad had offered him no provocation, of a nature sufficient to convert the offence to culpable homicide not amounting to murder, the offence is clearly that of murder, for the injury was fatal, and intentionally so. But the question is, whether in all the circumstances, he should pay for this crime with his life.

The circumstances of the case referred to in the judgment of my learned brother, namely, that of Jawed Iqbal v. The State Criminal Appeal No. 105 of 1962 are somewhat different from those in the present case, since there had been a pro vocation by violation of the person in a highly unpleasant manner, followed by an exchange of abuses. A case more apposite to the view I am here inclined to take is that of Abdur Rahim v. The State (P L D 1960 S C 401) decided by this Court in 1960. There, the appellant an old peon of 60, had been rebuking some small children who had been making a noise in front of his quarter when the deceased, a boy of 17, interfered and, in the words of the judgment‑

"took upon himself to walk up to the door of Abdur Rahim's quarter and there to engage in an equal exchange of abuses with a person who was old enough to be his father or even grandfather."

In that behaviour, the Court found

"a degree of provocation to the older person . . . . . ., which would naturally lead to loss of temper and even perhaps a resort to violence by way of chastisement."

The Court found it to be reasonably possible that if the learned Judges in the High Court had

"Considered the question of the accused age, in relation to the sentence, in a more favorable light . . . . . . they may have seen in the fact of provocation a ground for refusing to confirm the death sentence."

The Supreme Court accordingly interfered and reduced the sentence to transportation for life.

Here also, the case is one of a man committing an act of extreme violence, when in a state of passion which was quite conceivably aroused by the behavior of another, namely, Samad and in that condition being interfered with, as he thought, by the person who was the victim of his violence. That Ali Muhammad who was totally innocent and according to his view acting for the restoration of peace should have been thus killed is of course a matter for the greatest regret. But it is necessary also in adjudging whether Dost Muhammad has forfeited his life by his act to take into account each one of the circumstances surrounding his action. It is necessary to consider whether the imposition of the death sentence in such a case is required for the purpose of producing a deterent effect upon others similarly situated and to that I think a negative answer may readily be given since these actions are not of every day occurrence. On the other hand, if a fault of character in the culprit appears it may well be that reform by a long term of imprisonment is within the bounds of possibility. It is possible under the law to add to the lesser sentence a sentence of fine, the amount of which might appropriately be made over, if recovered, to the family of the deceased, who was a laborer, by way of compen sation for the loss they have suffered. If therefore, the order of the Court were that the sentence should be altered to trans portation for life, I would have been inclined to add a sentence of fine in the present case. But as my learned brothers are of the view that the sentence of death should be maintained, such ‑a course is not possible.

In view of the opinion of the majority of the Bench, the appeal is dismissed.

A. H. Appeal dismissed.

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