1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of the judgment of a Division Bench of the High Court of Peshawar upholding in appeal and reference the convictions of the appellants herein and confirming the sentences of oath inflicted upon them.
2. The appellants were charged for having caused the death of one Chana Gul on the 24th of August 1968, in furtherance of their common intention, at about 8-30 a.m., in village Parshai within Police Station Gambat in the District of Kohat.
3. It is alleged that some 4 or 5 years before the occurrence the appellant Hasham Khan molested a daughter of the deceased and in retaliation thereof Chamba Gal and his brother, the sons of the deceased, molested the wife of Hasham Khan, and it is for this reason that the appellants had killed the deceased by firing at him with their topaks from a distance of about 25 paces when the deceased was going from the side of the patwarkhana towards the village mosque.
4. The report was lodged at 10-30 a.m. Of the same day at Gambat Police Station, which is 17 miles away. The nearest police post is at Khushal Garh at a distance of 7 or 8 miles from the place of the occurrence, but the crime could not be reported there, as no police officer was found present there.
5. The deceased had five entrance wounds on top of right shoulder, 2 entrance wounds on back of right arm middle third and thirteen entrance wounds on the front of the abdomen. The entrance wounds on the shoulder and arm and 12 entrance wounds on the abdomen were of the dimension of 1/3" x 1/4" but one entrance wound on the abdomen was of the dimension of 1-- x --" and had a card-board disc inside it. The injuries indicated that three shots were fired at the deceased, one from the front and two from the back from different distances, because, the wounds on the shoulder and arm had no charring around them, but the wounds on the abdomen bore charring marks. This also indicated that more than one person must have participated in the incident.
6. The doctor, however, opined that the "total effective shots fired at the deceased were two, one from his front and the other from his back". According to him the Injuries on the shoulder and arm were caused by the same shot.
7. During the course of investigation, the house of appellant Sajawal was, it appears, searched and from there his licensed shot gun was taken into possession with 2 S. G., cartridges and a bandolier; but since no crime empty was seized from the place of the incident, it was not sent for examination by any Ballistics Expert.
8. During post-mortem examination, six pellets were removed from the back of the deceased and one card-board disc was removed from the entrance wound on the abdomen.
9. At the trial, the prosecution could, however, produce only two witnesses, namely, Chamba Gul, a son of the deceased, and Sial Khan, who is also a relative, as his brother Attar Khan is married to a daughter of the deceased. Their evidence was to the effect that when they were returning together from the graveyard to the village and were near the village mosque, they saw the deceased going towards the mosque from the patwarkhana side and at that time the appellants were behind him armed with topaks. When they were within 25 paces from the deceased, Hasham Khan fired the first shot which hit the back of the deceased. Then the deceased spun round when Sajawal Khan and Rustam Khan both fired at hits from the front. The deceased fell down and died instantaneously at the spot. The accused then ran away.
10. Apart from the relationship by marriage between Sial Khan and the deceased, there was no other suggestion that he had any particular reason to falsely implicate the appellants in such a heinous crime. But the defence at the trial was that none of the so-called eye-witnesses had seen the incident, and for this purpose reliance was sought to be placed on a concession made by Gulab Shah (P. W. 7) to the effect that Chamba Gul (P. W. 8) came there some 20 minutes after the deceased had been killed.
11. This witness claimed that he was changing his clothes when he heard the reports of three shots and cries of womenfolk. He came out of his house and proceeded in the direction from which the gunshot reports had come and found the deceased Chana Gullying dead there. At that time only some children and womenfolk were present there. The first person to arrive after him was Fateh Khan (P. W. 6) and then Chamba Gul some 20 minutes later.
12. Reliance was also sought to be placed on the medical evidence to belie the prosecution witnesses.
13. The doctor (P. W. 1) had opined, in his cross-examination, that the total effective shots fired at the deceased were two, one from the front and the other from the back and that the shot on the abdomen was fired first. The presence of charring round the latter wound and the recovery of a card-board disc from it were also relied upon to show that the shot fired from the front must have been fired from a very close range and not, as stated by the eye-witnesses, from a distance of 4 or 5 paces. Thus the medical evidence, it is claimed, belied the oral testimony completely.
14. It was also contended that if the motive suggested by the prosecution was correct, then it was Chamba Gul who should have been killed and not Chana Gul, his father. Appellant Rustam Khan, in any event, it was contended, had been falsely implicated, for, he had no animus at all against the deceased. Indeed, it is urged, that the most unusual feature of this case is that the accused are not Inter-related, nor has the prosecution made any attempt to show as to how they came to be joined together in this venture.
15. These contentions were, however, repelled both by the trial Court and the High Court. They took the view that the prosecution had succeeded in bringing home the guilt to all the three accused persons beyond any reasonable doubt and the accused were accordingly convicted. Since there were no extenuating circumstances justifying the non-imposition of the extreme penalty, their also Sentenced each of them to death.
16. This Court also, after hearing learned counsel at length, at the time of granting leave; felt that the appellants had been con--victed on reliable evidence and there was no ground to interfere on that account. Leave was, however, granted to consider whether, in the circumstances of the present case, the appellants had been given the legal sentence in view of the decisions of this Court In the cases of Fazal Khan v. The State (PLD 1964 SC 54) and A.I Akbar v. The State (PLD 1965 SC 363).
17. Learned counsel appearing in support of this appeal has again made an effort to take us through the evidence in order to impress upon us that the only testimony implicating the three accused persons was the testimony of interested witnesses, a son and another relation, not only without any independent corroboration but actually in the face of serious conflict with the evidence of another prosecution witness, Gulab shah, and the medical evidence. On such evidence, it is suggested, there was certainly room for reasonable doubt. At any rate this can even now on taken into consideration for not imposing the maximum penalty of death upon three persons for the murder of only one person. It has also been urged that the motive alleged by the prosecution Itself involved a question of family honour which is a sensitive matter for people of this particular region, and therefore, on that account too, the Courts below should not have imposed the maximum punishment in view of the observations of this Court in the cases referred to earlier. Lastly, it is urged that the offence was committed on the 24th of August 1968, the trial Court convicted the accused on the 18th of September 1969, and the High Court confirmed the death sentences on the 20th of September 1971. This Court granted leave on the 12th of April 1971, but the appeal could not be heard earlier. Hence the appellants have been under the shadow of death for several years now and had certainly an expectation of life for nearly a year and seven months. In these circumstances, this Court should not refuse them the relief prayed for.
18. We have given our anxious consideration to the arguments advanced by the learned counsel; but since leave was granted only on the limited point of sentence, we are unable to go into the appeal on merits.
19. It seems that the merits too were considered at the time of granting leave, but the Court felt satisfied that the conviction was based on reliable evidence.
20. The concession made by Gulab Shah in cross-examination is obviously an obliging statement and the doctor's opinion, also given in cross-examination, appears to be based purely on surmise. If the first shot was fired from charring range and death was instantaneous then it is difficult to appreciate how the shoulder and arm injuries could be caused from a greater distance. This rather suggests that the version of the eye-witnesses was the more accurate one.
21. On the question of sentence also, we have examined closely the decisions referred to above, but we do not find anything therein to assist the present appellants. This was not a case o, avenging a wrong, for, it is the appellant Hasbam Khan who had himself set the ball rolling by molesting the daughter of the deceased, and it was only in retaliation of that, a brother of the molested girl insulted the wife of Hasham Khan and that too several years ago. If family honour was involved, then Hasham. Khan should have sought revenge much earlier and the revenge should have been taken against the person molesting his wife and not against the father of that person who had not given any cause, as the High Court has observed, "to attract the wrath of the appellants".
22. The appellants, according to the prosecution evidence which has been accepted by all the Courts below as reliable, fired at the deceased on vital parts of his body with lethal weapons without any kind of provocation whatsoever and killed him in a most cruel and cowardly manner. There is nothing to show that the deceased was armed with any kind of weapon or that he way given any kind of warning before the first shot was fired. The High Court is, therefore, right in saying that there were no extenuating circumstances in this case of cold-blooded murder. The sentence imposed was, therefore, legal and we can find no justification for interfering with such a legal sentence.
23. This Court has consistently followed the rule that it will not' interfere with a legal sentence, unless there is some question of principle involved. In this case, no such question of principle is involved.
24. We are unable, therefore, in the circumstances of this case, to depart from our consistent practice or to grant any relief to the appellants. They may, if they are so advised and if the death sentences have not already been commuted under the general amnesty granted last year, move the Provincial Govern--ment for clemency on the ground that the trial has taken more than three years to be finally concluded.
25. With these observations, this appeal is dismissed.