1. SHAFIUR RAHMAN, J.--Leave to appeal - was granted to Pir Badshali, appellant, aged 70 years to examine whether on his conviction under section 302/149, P.P.C. (three counts) the sentence of death passed against him was justified.
2. The appellant Pir Badshah and Salim Khan of the same village had, it appears, a long standing enmity, and a number of criminal cases had been registered at the Police Station Lachi, District Kuhat reflecting their continued serious enmity in which party-men of both were attacked and killed periodically during the last 20 years or so. However, it is the case of the prosecution, and also accepted by the appellant, that this enmity had come to an end as they had a few months before the occurrence for which the appellant was convicted and sentenced, patched up their differences and effected a compromise. On the 23rd of October, 1975 Mutahir Shah, a son of the appellant while in the company of one Lal Shah, was shot dead in Kohat Bazar. His funeral took place on the 24th of October, 1975 in village Sumari Payyam within the limits of Police Station Lachi, the village where the appellant and others resided. In this funeral, Salim Khan, his sons Pir Kalim, Nurul Basir, Khan Mast and others including Sher Afzal (P.W. 9) and Gut Afzal (P.W. 8) participated. Before the funeral some guests of Salim Khan arrived and he left the gathering alongwith them for his house instructing his sons to attend to the guests at the funeral and to serve them meal and to return to the house when it is all over. It was in obedience to this direction that they remained at the house of the appellant in the Bujra. When most of the guests had departed after taking their meals, all of a sudden the appellant, his to sons, Mujahid aged 15/16 years, Zwahir, Qamar Zaman, a nephew aged 28 years and to others Ainuddin and Jahan Khan opened fire at the sons and relatives of Salim Khan, Ainuddin absconder fired the first shot at Nurul Basir while Jahan Khan fired another shot at him. Pir Badshah fired at and killed Ghazi Marjan. When Sher Afzal and Gul Afzal tried to run away from there towards their own house they were pursued and fired at. Jehan Khan hit and injured Gut Afzal near his own house. One Islam Gut who was not connected with the family of Salim Gut also got killed by one of the shots fired by the appellant or the absconders at their enemies. In this manner three person, Ghazi Marjan, Nurul Basir and Islam Gut got killed. The prosecution suggested that this one-sided, unprovoked attack immediately after the funeral of Mutahir Shah took place because the appellant and his associates still suspected that Salim Khan and his family was at the back of his murder.
3. At the trial Gut Afzal, the injured P.W. 8, was examined and his brother Sher Afzal (P.W. 9). Pir Katim, a son of Salim Khan, was not available at the trial as he was absconding, being charged in some other cases. Salim also appeared as P.W. 10.
4. The appellant when examined stated that he had no enmity with Salim Khan prior to the occurrence and also admitted that he had effected a compromise with him prior to the murder of his son Mutahir Shah. As regards the suspicion for the murder of Mutahir Shah, he stated as follows,-- "My son was killed and 1 had charged one Zarin Khan of village Summari for that murder. Zarin Khan is still absconder. I had not suspected Salim Khan or Noorul Basir dead Gliazi Marjan and Islam Gul dead for the murder of my son. Islam Gut dead was neither related to Salim Khan nor he was his party-roan Islam Gut was on inimical terms with Salim because Salim Khan and others had committed the murder of Mir Aslam Khan son of Gul Nazir, the maternal-uncle of Islam Gul, Salim Khan and others had also slaughtered 15 camels of the said Gut Nazir Ghazi Marjan dead was not a party-man of Salim Khan P.W Ghazi Marian was absconder and he had several blood feud case with other persons of village Summari. Ghazi Marian and Islam Gul or Noorul Basir had no enmity with myself."
5. As regards the presence of those attacked and killed and those injured the appellant stated as follows:- "Gul Afzal and Sher Afzal had not come to my house on aforementioned occasion. Islam Gul and Ghazi Marian had come to participate in the burial of my son. Noorul Basir had come to my house a day prior to the alleged occurrence and he had spent the night in my Hujra with other people who were present with the cot of my dead son. Salim Khan was also present in the Janaza Prayer but I had not seen him in my Hujra during the 'Khairat' offered after the burial of my son. After serving the "Khairat" all the people including Islam Gul, Ghazi Marian and Noorul Basir left my Hujra."
6. As regards the case against him, the appellant stated that Sher Afzal and Gul Afzal were closely related to Salim Khan aid they were not on visiting terms with him and they deposed falsely against him and the alleged occurrence had not taken place in the Hujra at all.
7. The learned trial Judge after examining the evidence held the appellant, his son Mujahid and his nephew Qamar Zaman who were available at the trial guilty of the offence under section 302, 149, P.P.C. (three counts) for the murders of Nurul Basir, lslarn Gul and Ghazi Marian. The sentence of death was imposed on the appellant on three counts holding that he had acted in a ruthless manner and did not deserve any leniency. The trial Court did not give any specific reason for sentencing Qamar Zaman and Muiahid to life imprisonment for the same offence.
8. The High Court confirmed the conviction of the appellant and also the sentence holding that the trial Court had rightly convicted and sentenced them.
9. The learned counsel for the appellant contended that there were a number of reasons for awarding the lesser sentence i.e. Of imprisonment for life to the appellant. In the first place, the very origin of the occurrence was obscure. It appeared to be sudden, unpremeditated and totally unplanned. He inferred this from the fact that the appellant and his associates had all the the and every facility at their disposal to commit the crime. They could have chosen a better moment for accomplishing their object. In a planned murder they would not have allowed Pir Kaleem and Gul Afzal to escape and the death of Islam Gul would not have been treated and described as accidental. In the second place the appellant was not the first to fire at the deceased's part nor was his shot shown to have proved fatal. At the worst his criminal liability was only constructive and that distinction should have been reflected in the sentence. Thirdly, it was established from the prosecution's own evidence that only a day before a young son of the appellant had been shot at and killed in the bazar. His funeral anal burial had taken place that very day and the appellant must have been under great emotional stress. It was said that Saleem, his sons and party-men were suspected of having committed his murder. III that state of morbidity and extreme depression lie joined in what he thought was a revenge for the murder of his son. Such a background and motivation has always been considered to be a mitigating or extenuating circumstance. In support the learned counsel relied on the decisions in Ajun Shah v. The State PLD 1967 SC 185; Zulfiqar and 5 others v. The State 1974 P Cr. L J 100, Shera and others v. The State 1976 P Cr. LJ 1028 and Yaqub and 2 others v. The State 1980 P Cr. L J 556. Fourthly, the law required that on a proved capital charge, the normal penalty of death sentence should be imposed. Where the lesser sentence is being awarded reasons should be recorded . In the case of Qamar Zaman and Mujahid, the lesser sentence was awarded but no reason for such distinction was noted in any of the judgments. They had initiated the attack. They had played a more positive role. Their shots were shown to have proved fatal. The principle of uniformity equally applicable in the matter of sentence demanded that the appellant should not have been so distinguished and dealt with more severely. Finally, the learned counsel contended that the appellant was an old man by now of 75 years of age. By the order, granting him leave to appeal he has gained an expectancy and hope for life which has sustained him for the last to years or so in prison. He had remained on bail during the pendency of his appeal in the High Court. These human factors eminently justify at this stage the award of the lesser sentence.
10. As this appeal has been admitted only to examine whether the sentence of death imposed on the appellant is justified, we must have a look at the practice of this Court in reviewing the legal sentence awarded by the Courts. In the case of Shaheb Ali v. State PLD 1970 SC 447 the following law was laid down in respect of legal sentence awarded by Courts coming up for reconsideration in this Court:- "This Court is not a clearing house or a corrective form 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 sentences is found to have been measured fancifully, in breach of the recognized principles of natural justice this Court, in the interest of justice and fair play must intervene.
11. In the case of Nabu alias Nabi Bux and others v. The State PLD 1975 SC 478 it was held that "mere fact that other three had been awarded lesser penalty is no ground for interfering with sentence"
12. In the case of Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 this Court held that:- "Once the conviction is recorded under section 302, P.P.C. In a case of premeditated and concerted attack launched with the intention of killing, the invocation of section 34 or 149, P.P.C. Does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made in the matter of sentence."
13. The principle of uniformity in sentencing the accused had no application to the case of the appellant, for he was the eldest of the family. The others were dependent on him, available at his back and call and must be deemed to be acting on his bidding and under his guidance as it was not a sudden affair.
14. It is very clear from the evidence that the at of the appellant was not a sudden impulsive at of an emotionally disturbed individual.
15. It was a cold, calculated and concerted at. If the appellant had on the very sight of his suspect adversaries reacted strongly and impulsively one could justifiably plead want of- planning and meditation. The weight and effect of serious enmity prompting such a ruthless at could have been then pleaded as mitigation. 'The appellant and his associates allowed the funeral ceremonies to be completed peacefully to the end. The victims and their unsuspecting associates participated whole-heartedly from the beginning to the end with sincerity and publicly. The cases cited by the learned counsel for the appellant, of family feuds leaving lasting impressions on youthful impressionable minds is of no avail for the family feud stood settled and it was by way of amends that the victims and their associates publicly participated in the mornings and even the appellants countenanced it with equanimity and composure to turn the tables on them at the appointed the in the manner planned. Had it been a sudden affair, the result of a personal depressive sorrow, it would have remained confined to one. The simultaneous participation of many others in an unilateral unprovoked attack speaks more--of a concert, a design, a planning. The argument that with the slightest planning they could accomplish much more omits to take note of the constraints of the situation, of the occasion itself, and of timings.
16. The expectancy of life, such as may be taken note of by Courts, arises out of an order of acquittal recorded in Court proceedings. It does not arise out of a leave granting order. Even where it arose out of acquittal orders as in Asadullah v. Muhammad Ali PLD 1971 SC 541, Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607 and Mst. Razia Begum v. Hijrayat Ali PLD 1976 SC 44, it played no decisive part in awarding the sentence finally.
17. We, therefore, find no merit in this appeal and the same is dismissed.