1983 P Cr (PLP)

ABDUL MAIEED MALLICK, J

Kabir Hussain Shah, convict‑appellant, was sentenced to death, on the charge of murder of Sher Khan, by Sessions Judge, Mirpur. The sentence of death was confirmed by the High Court. This appeal is preferred to set aside the judgments of Sessions Judge dated 18th August, 1973, and High Court dated 3rd April, 1974.

2. Sher Khan, deceased, a Pathan from Northern areas of Pakistan, as the impression is gathered from the record, was engaged in trade in Kotli City. He developed close relations with Faiz Ali Shah, whom Sher Khan entrusted with Rs. 3,000 his savings. Faiz Ali Shah lived in Koth city. It is so alleged, that after lapse of sometime, Sher Khan asked Faiz Ali Shah for return of his amount. Fair. Ali Shah who with passage of time became treacherous, engaged Kabir Hussain Shah (appellant) and Karamatullah (approver) in his service and hatched a conspiracy to do away with Sher Khan and to divide the money among themselves. In consequence of conspiracy, Sher Khan was brought to the house of Faiz Ali Shah, the place of incident. Meanwhile, Faiz Ali Shah sent his wife and children to the back house. Sher Khan was served fruit inside the room, where Kabir Hussain Shah and Karamatullah were hiding in a corner. Faiz Ali Shah himself went out to keep watch on the outer door of Haveli. Sher Khan was taking fruit when Kabir Hussain Shah hit him on head with iron bar. Sher Khan stood up, they grappled him but he managed to escape and ran out of the room with loud cries. He was checked and stopped at the door by Faiz Ali Shah, where other assailants arrived. They again grappled and dragged him inside the house. He was layed on the floor and killed. While other culprits strongly held him and gave blows, Kabir Hussain Shah cut his throat with knife. There after, Faiz Ali Shah went out to arrange a Jeep for disposal of the dead body. It is stated that Kabir Hussain Shah dismembered the dead body and packed it in a box. By the time, Jeep arrived in the street, it was 8‑30 p.m. Faiz Ali Shah brought the Jeep. Shabir was its driver. The steel box, containing the dead body was put in the Jeep and was carried to a jungle, more than thirty miles away in Pakistan, across the Holar bridge. The limbs and trunk was dropped from a cliff, from where it was later on recovered at the instance of the appellant.

3. It so happened that Gulzar Khan (complainant) arrived in the street and saw unusual activity when culprits standing near the Jeep placed the box in it. They looked grisly and puzzled. Their dubious behaviour lent suspicion to Gulzar Khan. Consequently he asked Faiz Ali Shah as to what was the matter. Faiz Ali Shah replied that there was nothing and that they were going somewhere in connection with a personal affair. Gulzar Khan, not feeling satisfied, on departure of the culprits went inside the house of Faiz Ali Shah, which was left open. There, in torch light, he discovered blood stains on the floor, walls and clothes scattered in the room. His suspicion turned into reality. He promptly reported the matter to the police.

4. Sardar Nazir Khan, S. H. O. Kotli, very efficiently carried investi gation of the incident. He arrested the appellant on 13th, i.e. two days after the incident. The convict confessed his guilt and led the police to recoveries. Faiz Ali Shah absconded, but Karamatullah was apprehended on 17th. He turned out to be an approver. We are told, Faiz Ali Shah was also apprehended and at present he is facing separate trial.

5. The evidence against the convict consists of testimony of approver, convict's retracted confession, depositions of Gulzar Khan, Mst. Sabran and Mst. Begum Jan, recoveries and other attending circumstances. Mst. Sabran and Mst. Begum Jan, sitting on the roof of their house, situate opposite to the house of Faiz Ali Shah across the street, were attracted by the cries of Sher Khan when he escaped from the first assault and came out in the courtyard and was stopped by Falz Ali Shah. They saw the culprits and Sher Khan quarrelling and taking him back to the room.

6. Mr. Muhammad Yunis Surakhvi, who appeared as amicus curaie rendered great assistance to us in perusal of the points raised in the appeal. The learned counsel contended that there appeared some extenuating and mitigating circumstances for commutation of death sentence. He enumerated such circumstances as :‑ (i) failure to prove motive ; (ii) discrepent statements of Mst. Sabran and Mst. Begum Jan; and (iii) delay in disposal of this appeal. He cited among others Muhammad Sharif v. Muhammad Javid (P L D 1976 S C 452) and Hanif Khali v. The State (1983 P Cr. L J 225) in support of his contentions.

7. Motive attributed is narrated by us elsewhere. The trial Court and the High Court were not persuaded to hold that motive alleged was not proved. But the fact remains that point of proof of motive is a point of fact. The High Court has concurred with the view of the trial Court' on this score. We are told that prosecution failed to recover alleged amount (Rs. 3,000 entrusted to Faiz Ali Shah by the deceased from Faiz Ali Shah. Moreover, there is no evidence that the amount was divided among the culprits on completion of the conspiracy. Our answer to the objection is that we are in possession of evidence that soon after the departure of culprits, in the Jeep, Police came in action. All the culprits dispersed in bide, when only two of them were apprehended. The amount was with Faiz Ali Shah, who remained in absconsion till completion of the trial. Moreover, recovery of money, whether made or not, hardly affects the case. No recovery of amount or absence of proof of its disposal is immaterial in the circumstances of the case. The facts relating to motive, being in exclusive knowledge of culprits. is proved by the words of their own mouth. 1n our estimation, the prosecution has successfully brought home the. alleged motive.

8. Our attention was drawn to some of the discrepancies occurring in the statement of Mst. Sabran and Mst. Begum Jan. The trial Court and the learned Judges in the High Court, on scrutiny of the evidence, concluded that the said discrepancies were minor, immaterial and ineffective. This observation, in our view, is correct. We are not persuaded to assign impor tance to the objection.

9. Procrastination in conclusion of the trial or disposal of appeal, per se, is not a valid reason for commutation of sentence of death. The doctrine of expectancy of life. in view of delay of 6 years, in disposal of appeal was adhered to by this Court in `Hanif Khan's case and sentence of death was converted to life imprisonment. In that case accused was awarded life imprisonment by the trial Court. The sentence was enhanced and converted into sentence of death by the High Court. The Court in that case was impressed that award of sentence of life imprisonment raised a hope of life to the convict. Thus expectancy of life coupled with consi derable delay was considered a ground to commute sentence of death. The position of the instant case is obviously distinguishable. In Muhammad Sharif v. Muhammad Javed the learned Judges of Supreme Court of Pakistan were not persuaded to apply the doctrine to that case. Relevant part of the judgment is reproduced:‑ As regards the doctrine of expectancy of life, in view of the chronic delays in committal, trial and disposal of appeals as also the delibe rate tactics of the convicts to delay the proceedings in order to escape the gallows there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v. Muhammad Ali (P L D 1971 S C 541), Muhammad Khan v. Dost Muhammad (P L D 1975 S C 607) arid Mst. Razia Begun v. Hajrayat All and 3 others (P L D 1976 S C 43) and the doctrine like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court." The view expressed in Muhammad Sharif v. Muhammad Javed finds support from Shah Muhammad v. The Stale (P L D 1973 S C 332). The observation is recounted below. The fact that more than 4 years have elapsed since a person was convicted is not a circumstance which the Court can take into consi deration. If the delay in the execution of the sentence can by itself be a sufficient ground for commutation then the appellant can approach the executive authorities for such commutation; but, so far as the Court is concerned, it cannot recommend any such action.

10. The evidence is that Sher Khan, a young man, who out of intimacy reposed confidence in Faiz Ali Shah and entrusted him with his hard earned savings became victim of treachery and conspiracy resulting in gruesome murder. Sentence of death is normal penalty for murder. To avoid death penalty defence has to satisfy that there existed extenuating and mitigation circumstances. In the instant case the aforesaid circumstances, as suggested by the learned counsel for the defence, to be considered as mitigating, in our view, do not fall within the scope of mitigating and extenuating circumstances. The appeal, being devoid of force, is, therefore, rejected. A copy of the judgment shall be sent to the prisoner through Superintendent Jail. Appeal rejected