NURAN Versus NURA

1. ANWARUL HAQ, J :-The respondent, Nura, was tried alongwith six other persons, by the learned Additional Sessions Judge, Sahiwal, on charges falling under sections 120‑8, 302/34 and 307/34, P. P. C. for having entered into a criminal conspiracy, in pursuance of which they committed the murders of Mst. Nazir Ilahi, Admeera and Allah Ditta, and a murderous assault on the life of Manzoor Ahmad (P. W. 21) by causing grievous injuries to him. Two other persons were also involved in the transaction, namely, one Basara who absconded and was declared a proclaimed offender, and Shahra, since dead. The learned trial Judge acquitted Mamman but convicted the remaining six persons. On the charge of criminal conspiracy the respondent Nara and accused person named Shera, Bakha and Rahim were sentenced to death while accused Dara and Ghulam were sentenced to transportation for life and a fine of Rs. 500 each or in default further simple imprisonment for six months. Nura was separately convicted under section 302/34, P. P. C. on all the three counts of murder and sentenced to death in each case. In addition, he was also sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500, or in default to undergo further simple imprisonment for six months under section 307/34, P. P. C. for the murderous assault on P. W. Manzoor Ahmad.

2. On appeal, a Division Bench of the former High Court of West Pakistan at Lahore acquitted all the accused persons except Nura. The Court exonerated him of the charge of criminal conspiracy as well as of the murder of Mst. Nazir Ilahi, but maintained his conviction for causing the deaths of Admeera and Allah Ditta and injuries to Manzur Ahmad. While doing so, the learned Judges in the High Court placed reliance on the statements of Ahmad Bakhsh (F. W, 19), Walia (P. W. 20) and Manzur Ahmad (P, W. 21). However, they r educed the death sentences awarded to him on both the counts of murder to transportation for life with the following observations:

3. "No doubt, Nura was one of the assailants of Admeera and Allah Ditta, but there is no evidence that Admeera and Allah Data suffered any injury as a result of his firing. In the circumstances, while upholding the conviction of Nura under section 302/34 P. P. C. we reduce his sentence to transportation for life on each count. The sentence of death is not confirmed. Needless to add, that the sentences shall run concurrently."

4. In the petition for leave to appeal the acquittal of the respondent Nura and his co‑accused on the charge of criminal conspiracy was challenged, and a grievance was also made to the effect that there was no justification for the High Court to reduce the sentence of death awarded by the trial Judge to Nura for each of the two murders of which he was found guilty. After an examination of the evidence brought on the record, this Court, by its order dated the 3rd of February 1969, refused to grant leave to appeal against the acquittal of all the accused persons in respect of the charge of criminal conspiracy, but observed that the question required consideration ac to whether the sentence; awarded by the trial Judge to respondent Nura, on the two murder counts, were reduced by the High Court on sound legal principles.

5. In order to appreciate the circumstances having a bearing on this question, it is necessary to state certain facts constituting the motive for the crime, as well as the details of the actual incident. According to the prosecution, the motive for the murders goes back many years to the abduction of one Mst. Roshan, a sister‑in‑law of Mahram (P. W. 18), by Dara accused. It is stated that he married her, and out of this wedlock Mst. Faizan (P. W. 15) was born. Her Nikah was performed with her khalazad cousin Shera (P. W. 16), son of Mahram already mentioned, when she was ten or 12 years of age. Her mother Mst. Roshan died four years alter this ceremony. When Mst. Faizan became of marriageable age, her father, Dara accused, demanded some consideration from the bridegroom's father Mahram, whereupon the latter paid Rs. 1700 to Dara. It was alleged that in spite of having received this money and entering into a solemn commitment, Dara did not hold the Rukhsati, and wanted to marry Mst. Faizan to some one else. Two or three months prior to this occurrence which took place on the 20th of April 1965, Mst. Faizan of her own accord, eloped with her fiance Shera, and both went away to Bahawalnagar. After living there for about a month, Mst. Faizan anti Shera (P. Ws.) returned to their village Basti Haiderka in the area of Bilara Dilawar in the jurisdiction of Police Station Ahmadyar in the Sahiwal District. It is said that Dara accused and his sons could not bear this insult and they shifted to another village called Malka Hans.

6. It was in this background of mutual relations between Dara accused and the family of his brother‑in‑law Mahram, that he is alleged to have hatched a conspiracy with the other co‑accused, who were closely related to him, to do away with the members of the family of Mahram. It is not necessary to mention the relationship between Dara and the other accused, except the respondent Nura, who is a khalazad cousin of Dara.

7. As to the actual incident, it was alleged at the trial that at about peshiwela on the 20th of April 1965 Mahram (P. W. 18) was with Ahmad Bakhsh (P. W. 19), in front of the latter's house, when they heard reports of gun fire. They saw the respondent Nura, the absconder Basara and one unidentified person armed with guns and accused persons named Mamman and Shahra armed with sticks. Allah Ditta deceased had been hit with the first shot and was seen falling down. The deceased Admeera came running out of his house and was hit by a shot fired by the absconder Basara. He also fell down and died instantaneously. Allah Ditta lived for some time and expired while on his way to the hospital.

8. The prosecution further alleged that after hitting Allah Ditta and Admeera, the accused persons fired two more shots in the air to rejoice their achievement, and thereafter they went towards the house of witnesses Shera and Mahram, where the respondent Nura fired a shot which hit and killed Mst. Nazir Ilahi, a grand‑daughter of Mahram and niece of Shera. It may be mentioned here that the deceased Admeera was a brother of Mahram and the deceased Allah Ditta was a son of Admeera.

9. It was also alleged that Manzoor Ahmad (P. W. 21), who was cutting wheat crop in his field, proceeded towards the scene of offence by riding on his mare when he heard the report of gun-fire. On reaching the spot he saw all the assailants present there, and at the instigation of Mahram accused the unidentified accused fired at him, hitting him and his mare, when he was at a distance of thirty karams from the village mosque.

10. The medical evidence shows that the deceased Allah Ditta had sustained multiple lacerated wounds, several in number, on the abdomen, which were the wounds of entrance. Three pellets were removed from the abdominal cavity. There were also three corresponding wounds of exit, which had fractured the pelvic bone on the right side. It appears that all the entrance wounds were the result of one shot.

11. The deceased Admeera had six lacerated wounds on the left side of the abdomen, which were described by the Doctor as wounds of entrance. There were corresponding wounds of exit. Here again, pellets were removed and it is possible that ail the wounds were caused by one shot.

12. The girl Mst. Nazir Ilahi had suffered one lacerated wound on the front middle of the head, just above the upper margin of the forehead, causing fracture of the frontal bone. The brain matter was coming out and one bullet was removed from the depth of the brain.

13. The injured witness Manzoor Ahmad had sustained five gunshot wounds on the lateral aspect of the right thigh. The Doctor stated that all the five bullets had passed through, and the exit of the bullets was situated on the medial aspect of the thigh.

14. It is submitted by the learned counsel for the appellant that the reasons given by the High Court for awarding the lesser punishment to the respondent are not sustainable in law, as he had deliberately come armed with a gun in prosecution of the common object of Dara and others to commit these murders; and that in any case the murder of Mst. Nazir Ilahi was directly attributed to the respondent Nura.

15. As the High Court has acquitted the respondent Nura of the charge of murdering Mst. Nazir Ilahi, and there is no appeal before us against this acquittal, the facts and allegations concerning this particular murder cannot now be taken into consideration for the purpose of determining the appropriate sentence to be awarded to the respondent. This question must be decided in relation to the circumstances surrounding the other two murders only for which he now stands convicted.

16. On behalf of the respondent, it was submitted by Mr. Iftikharul Haq Khan that this was a case involving family honour in relation to a female, and in such cases this Court has not favoured the imposition of the extreme penalty of death; that the deceased persons Allah Ditta and Admeera were each killed by only one shot, and there was no direct and positive evidence to show that the fatal shot in either case was fired by the respondent, with the result that his liability was only of a vicarious nature as arising under section 34 of the Pakistan Penal Code; and that in any case the murders were committed a long time ago, namely, on the 20th of April 1965 and the respondent had acquired an expectation of life on account of the reduction of sentence by the High Court, an expectation which should not be taken away by this Court. In support of these submissions the learned counsel referred us to several decisions, which may be briefly noticed.

17. In Ghulam Hussain v. Zainullah P L D1961 S C 230 despite the finding that there was a deliberate murder committed in the course of an attack by four persons on a single unarmed man, the Supreme Court declined to impose the death sentence in view of the length of time which had elapsed since the occurrence and the intervening incidents, in particular, that as a result of the decision of the High Court Zainullah was given a full expectation of life. This principle was followed in Sultan Khan v. Taj Din P L D 1963 S C 97, wherein while setting aside an acquittal, the Court declined to impose the sentence of death in view of the long time that bad elapsed from the date of the trial. The incident in that case bad taken place on the 16th of April 1959 and the order of acquittal by the High Court was passed on the 14th of October 1960 and the case was decided in this Court on the 9th of January 1963. The interval between the order of acquittal passed by the High Court and the order of conviction passed by the Supreme Court was thus a little over two years, although from the date of the murder nearly 4 years had elapsed. In still another case reported as Hamida Bano v. Ashiq Hussain P L D 1963 S C 109 a sentence of transportation for life was considered appropriate in view of the finding recorded by the Court that the liability of respondent Ashiq Hussain was joint with the other. In Fazal Khan v. State P L D 1964 S C 54 death sentence was not awarded as a question of family honour, touching the females was involved. It was observed that such questions were of almost overpowering importance to the tribes of the western regions, and to vindicate that honour, they felt bound in duty to go to very great lengths. These observations were reiterated by the Court in Muhammad Ramzan v. State P L. D 1966 S C 129, and consideration was also given to the fact that the offence had been committed four years ago, and in the interval, for not less than two years and ten months, the convicts were given a full expectation of life. On these considerations, the sentence of transportation for life was considered appropriate for each of the convicted accused. Again in Ghulam Muhammad v. Muhammad Sharif P L D 1969 S C 398 the extreme penalty was not exacted on the ground that the accused was given expectation of life as far beck as 12 5‑66, when the trial Judge passed the order of acquittal. The appeal was decided in this Court on the 6th of June 1969, i.e. after a little over three years from the date of acquittal.

18. However, in Asadullah v. Muhammad Ali P L D 1971 S C 541 a somewhat different view was taken.

19. It was observed that:

20. "The doctrine of expectation of life held out to an accused person by a subordinate Court is primarily applicable to cases involving question of limitation. If the period prescribed for filing an appeal or petition for special leave to appeal against an order of acquittal has expired, the accused person acquires a right which cannot be taken away. A case in which the Court below had passed a patently erroneous order causing grave miscarriage of justice would not fall ipso facto within this doctrine, but if inordinate delay occurs in the disposal of an appeal against order of acquittal the appellate Court may refrain from exacting the extreme penalty of death. In some reported cases this Court has refrained from inflicting death sentence on ground of delay, yet there is no universal rule that if the subordinate Court has on an erroneous or perverse view acquitted an accused person resulting in grave miscarriage of justice the appellate Court cannot impose the sentence of death because of the very order of acquittal. Indeed sentence of death is the ordinary penalty for the offence of murder and tire lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed. If the doctrine of expectation of life was a rule of universal application, High Courts would, in no case, be competent to enhance the sentence awarded by the lower Court, yet in a number of cases various High Courts of the sub‑continent have in the past enhanced sentences of transportation to death if the ends of justice so required. The sentence to be awarded in an appeal against an order of acquittal will, therefore, depend on the facts of each case."

21. In the light of these principles, the Court sentenced the principal offender to death, but awarded the lesser punishment of transportation for life to the other five respondents who were vicariously guilty of the charge of murder, and in whose case there was a possibility that they had acted under the influence of the principal offender.

22. We have no hesitation in endorsing the observations reproduced above, as, in our view, they represent a correct statement of the principles which ought to be applied in cases of acquittal and enhancement of sentence.

23. Applying these principles to the facts of the present case, we find that the offences were committed as long ago as the 20th April, 1965, and the sentence of death was set aside by the High Court on the 30th of June 1968. It is true that leave to appeal on the question of sentence was granted by this Court on the 3rd of February 1969, yet even from that date a period of more than five years has elapsed. It is also clear that, on the allegations made by the prosecution itself, the crime was committed owing to considera tions involving family honour touching a female, namely, Mst. Faizan, the daughter of the respondent's cousin Dara. The direct grievance was of course against Shera, but no other motive was suggested for killing Allah Ditta and his father Admeera. Another circumstance to be taken into account is that the respondent, Nura, was not directly concerned as the female involved was not his daughter but the daughter of his cousin, and it is, therefore, clear that the respondent was acting under the influence of an elder, namely, Dara. Lastly, it is also a case of vicarious liability, as the prosecution has not positively established that it was Nura who fired the fatal shot at either of the taro deceased persons. There were, according to the prosecution, at least two other assailants armed with guns, namely, absconder Basara and the acquitted accused Mamman. Taking all these circumstances C into consideration, we are of the view that no compelling justification is made out for enhancing the sentence awarded to the respondent by the High Court.

24. As a result the appeal fails and is hereby dismissed.

25. K. B. A. Appeal dismissed.