1. ' MUHAMMAD Gul, J.-Feroz Khan son of Sher Afzal, the petitioner herein, has been convicted by the learned Sessions Judge, Peshawar, under section 302, P. P. C. For the murder of Nooran Shah by firing at him with an automatic pistol and sentenced to death. His appeal to the High Court against his conviction has failed and his death sentence confirmed on a reference, and be now seeks leave to appeal against the judgment of the High Court.
2. ' The murder of Nooran Shah for which the petitioner stands convicted has a tragic background of murders of four persons committed at three different occasions since 1-7-1970 in each of which Nooran Shah deceased was allegedly concerned. The facts leading to the present murder are more or less not disputed. The case for the prosecution is that the petitioner's brother Jamroz and the deceased Nooran Shah started a joint business as milk-sellers. The petitioner's brother Jamroz looked after the milch-cattle in the Jungle Khushki Payan where he also lived and the business of milk-selling was actually carried by Nooran Shah Deceased. A dispute arose between the two partners at the time of settlement of accounts, according to which Jamroz had to pay certain sums to Nooran Shah Deceased. This led to a rift between the two partners in business.
3. ' On 1-7-1970 at about 5.00 a.m, Jamroz was killed in the jungle. F.I.R. No, 164 of 1970 was lodged by the petitioner's father Sher Afzal in which he charged Nooran Shah with the murder and named Ajun Khan and Ashrafuddin as the eye-witnesses. On 27-7-1970, that is to say, within less than a month of the previous murder, both Ajun Khan and Ashrafuddin were killed and an attempt on the life of their brother Rahim Khan was made by Nooran Shah. In F. I. R. No, 180 of 1970 relating to this incident besides Nooran Shah, his brother was also named as the assailant.
4. ' After these two incidents, Nooran Shah turned an absconder.
5. ' On 12-3-1972 at about noon time, the petitioner's father Sher Afzai was also murdered. This time, the report was lodged by the petitioner in which besides Nooran Shah, he charged his brother Amir Dost alias Kejanai and two others for the murder of the petitioner's father.
6. ' On 9-8-1972, Nooran Shah was arrested and in due course, in the case concerning the murder of Jamroz, (the first in the series), Nooran Shah was committed to the Court of Sessions for trial. In the second case, in which Nooran Shah alongwith his brother was accused of the murders of Ajun Khan and Ashrafuddin, and attempt on the life of Abdur Rahim, he had to appear in the Court of Mr. Bahadur Khan, Magistrate, 1st Class, at Nowshera on 26-4-1973 and for that purpose, he was brought from Peshawar to Nowshera and lodged in the lock-up in the presincts of Nowshera Courts. On 26.4-1973 at 10 a.m. On a direction from Mr. Bahadur Khan, Nooran Shah deceased was brought to his Court by F. Cs. Muhammad Hashim and Faulad, in hand-cuffs and shackles from the judicial lock-up at a distance of about 50 paces. Just before Nooran Shah was ushered in the Court-room of Mr. Bahadur Khan, the petitioner who had wrapped himself in a chadar, entered the Court-room and stood near the entrance. As soon as Nooran Shah was brought in the Court-room, the petitioner took out a pistol from under his chadar, and fired five or six shots in quick succession, as a result, Nooran Shah dropped dead. Bahadur Khan, Ahmadullah Shah, P. S. I., Subhan Gul, A. S. I., F. Cs. Faulad and Muhammad Hashim overpowered the petitioner and relieved him of the pistol (Exh. P. 4). It was a .32 bore automatic pistol with one live cartridge in the magzine. Mr. Bahadur Khan wrote out a report (Exh. P. A/1) about the incident and sent it to the S. H.
0. At 10.30 a.m. During investigation, Mr. Bahadur Khan also produced pistol (Exh. P. 4) along with one live cartridge in the chamber.
7. ' According to his autopsy, Nooran Shah died of multiple fire-arm injuries, of which six were inlet wounds, which had injured his thorax walls, plura, lungs and various blood vessels. Mandibular bone was fractured. F. C. P. W. Alam Khan was also injured during the scuffle to overpower the petitioner. In the course of his trial, the petitioner stated as follows:- "Nooran Shah had murdered my brother Jamroz and my father and two witnesses Ajun and Ashrafuddin who had deposed against Nooran Shah in the murder case of my brother. Nooran Shah had threatened me with dire consequences. Whenever I used to see Nooran Shah, he used to tell me that next turn is mine to vacate and I never maintain balance of mine while confronted with him. 1 am Innocent and falsely charged."
8. ' The petitioner produced no evidence in defence. The trial Judge as also the learned Judges in the High Court found the above evidence over-whelming and therefore, had no hesitation to sentence him to death for the murder of Nooran Shah.
9. ' Mr. Maqbool Elahi Malik, learned counsel for the petitioner, frankly conceded that in view of the fact that the petitioner was apprehended at the spot and the independent evidence produced in the case, he cannot possibly question his conviction. He, however, made an earnest plea that in view of the background which had led the petitioner to avenge the murders of his brother and father and the two prosecution witnesses in the case relating to the murder of his brother, the extreme penalty was not justifiable and that consistently with the view taken in some of the precedent cases, the ends of the justice would have been fully satisfied with the lesser sentence.
10. We cannot possibly say that there is no substance in the above plea. However, the fact remains that the sentence of death imposed upon the petitioner is perfectly legal and the mere fact that in the peculiar circumstances of the case, the lesser sentence would have been more appropriate would not be a sufficient ground for grant of leave by this Court, for, a .4 pointed out in a number of cases, this Court '..611 normally not interfere to reduce the sentence which otherwise is legal.
11. Adhering to that view, we are constrained to refuse leave, in a matter which was entirely discretionary with the High Court and trial Court. This aspect of the case, now, more appropriately falls to be dealt with by the Executive in the exercise of its prerogative of mercy.