SHAHEB ALI Versus THE STATE

1. SAJJAD AHMAD, J.‑ The appellant Shaheb Ali, who has been granted special leave to appeal by this Court on a jail petition, is the middle one of the three real brothers (the other two are Muntaz Ali and Ismail) who were jointly tried under section 30/34, P. P. C. for causing the murder of one Upendra Mohan Das in furtherance of their common intention. All of them were found guilty and sentenced to death by the Additional Sessions Judge, Mymensingh. On appeal and reference, a Division Bench of the Dacca High Court, while maintaining their convictions, has altered the death sentences of Ismail and Muntaz to transportation for life, but has confirmed that of the appellant.

2. Leave was granted to the appellant to consider whether his case on the point of sentence was differentiated by the High Court on correct principles, particularly as the High Court itself was of the view that "it was difficult upon the evidence to differentiate the case of one prisoner from another".

3. As the scope of this appeal is confined only to the question of sentence, it is not necessary to go at length into the facts of the case except to mention that according to the findings of the trial Judge with which one cannot disagree "it is a case of premeditated cold‑blooded murder on a path‑way, in open day light in a most daring and desperate bid to take revenge against the deceased just for bringing criminal cases against them".

4. The deceased was the founder‑secretary of the High School of his village Kalibagail (Police Station Pulbaria) and was also a social worker. The accused, who were his co‑villagers, were convicted in a theft case brought by him, and he had also initiated proceedings against them under section 107, Cr. P. C. A brother of the deceased, P. W. Jogendra Mohan Das, had instituted a case against Muntaz Ali and Ismail for the theft of his paddy in which the deceased was to give evidence on the day following the occurrence.

5. On the 17th of January 1968, at 9 a.m., the deceased was coming back home from village Kalibagail when in a paddy field a mile away from the village he was confronted and assaulted by the accused. The appellant and Ismail were armed with daggers, Muntaz Ali had a dao (a sharp‑cutting weapon) which they had concealed under their chaddars. They besieged the deceased; Shaheb Ali was the first to deal a dagger blow and then all of them struck him repeatedly causing him as many as 19 incised injuries, putting him to instant death.

6. In confirming the capital sentence of the appellant and commuting that of his co‑accused, the learned Judges of the Division Bench seem to have been swayed by the reason which, to put it in their o vii words is "that Courts have always been reluctant to sentence more than one person to death for killing one person". Therefore "having regard to the fact that all the three are real brothers and also for the likelihood that if Shaheb Ali had not given the first blow with his dagger on the belly of the deceased, the other two might not have been moved to action." The learned Judges came to the conclusion that "the ends of justice will be amply met if Shaheb Ali alone is sentenced to death".

7. The distinction made by the learned Judges between the case of the appellant and that of his co‑accused for awarding death sentence to the former and life imprisonment to the latter is absolutely without any difference. Their guilt, according to the evidence and facts of the prosecution case, is absolutely at par without any difference in kind or in degree. When several persons act together in furtherance of their common intention, the act of one is the act of every one of them, and it does not matter if one has taken a leading or a more prominent part in the perpetration of the crime. In the administration of criminal justice, Courts have a wide discretion in awarding sentences, which has to be exercised judiciously according to the circumstances of each case. For murder offences, this discretion is restricted to the choice of alternative sentences of death or life imprisonment death being the normal sentence unless mitigating circumstances exist to justify the awarding of the lesser sentence. In the present case, the consideration which has weighed with the learned Judges, namely, that the other accused may not have been moved to action if Shaheb Ali appellant had not given the first blow with a dagger, is, to my mind, very unreal. When all of them were waiting to pounce on the deceased under a pre‑arranged plan and attacked him concertedly and relentlessly, the feeling that the other two accused may not have joined the killing if the appellant had not opened the attack is without any basis whatsoever. Similarly, the view that the Courts have always been reluctant to sentence more than one person to death for killing one person, has, with all respect, been too widely stated. It would always depend on the facts of each case, but despite any psychological human aversion to sending people to the gallows, judicial conscience cannot be eased by the moral escape of taking a life for a life only to balance the result in the loss of life on either side. If on the fasts of a given case, law and justice demand a heavier toll for the extinction of a single life at the hands of more than one, culprit, it has to be exacted.

8. When the guilt of several accused persons concerned in a murder crime is proved to be equal and indistinguishable, it would be wholly illogical to pick on just one person out of the lot to pay by his life for the murder of the deceased and to spare the others. If several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the Law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner.

9. In the present case, the decision made by the learned Judges of the Division Bench of the High Court in confirming the death sentence of the appellant only and commuting that of the others, and the failure of the State to appeal for the enhancement of the sentences of the latter has complicated the matter. The result achieved is an unwarranted and unfair distinction in the sentence of the appellant which is bound to induce a feeling in him that he has been made a scape‑goat to atone with his life not only for his own sin but also of that of his brothers for having killed the deceased. The public reaction on such a discriminatory treatment, there being no valid basis for this discrimination, would, in my judgment, be one of a sad comment on the vagaries of the legal machinery and its working by the Courts.

10. I am conscious of the fact that this Court is not a clearing house or a corrective forum to revise the sentences passed by competent Courts in criminal cases. It is certainly not the function of this Court to interfere and tinker with legal sentences so awarded. However, if the sentence is found to have been measured fancifully in breach of recognised principles of natural justice, this Court, in the interest of justice and fair-play, must intervene.

11. Speaking frankly, I have been put to a considerable strain in making up my mind in this case. The question that has tossed my mind is: shall I uphold the sentence of the appellant or shall I scale it down to that of the co‑accused? If I uphold it, do I not approve of the mistake of the High Court in creating an adverse distinction in the case of the appellant from that of the others, although in point of fact no such distinction exists? If I alter the sentence, shall I not be committing the same mistake which has been committed by the high Court in withholding the normal penalty of death for what has been found to be wanton and heartless murder.

12. In this wavered state of mind, I have thought it better to err in favour of the condemned‑appellant rather than against him, and for the additional reason that he has now been under the agony of a death sentence for a little less than two years. It is also obvious that in the commission of this crime, he has not acted singly on his own, but has acted under the active influence and with the collaboration of his other two brothers, one of whom is elder and the other younger to him, and both of whom have got away in this crime with a lesser punishment.

13. In the circumstances, I feel constrained to accept this appeal to the extent of modifying the appellant's sentence of death to that of transportation for life.

14. M. YAQUB ALI, J.‑ I agree.

15. WAHIDUDDIN AHMAD, J .‑I agree.

16. K. B. A. Appeal accepted.