1999SCMR2722 (PLP)

AJMAL MIAN, C.J.

This is an appeal with the leave of this Court against the judgment, dated 7-9-1994 of the Division Bench of the Lahore High Court in Criminal Appeal No. 95 of 1991 and Murder Reference No. 66 of 1991, whereby the appeal filed by convicts Noor Muhammad and Khan son of Pir Bakhsh against the conviction and sentences was dismissed and the murder reference made by the learned Sessions Judge for confirmation of death sentence awarded to convict Noor Muhammad was accepted. The brief facts are that the convict Noor Muhammad and his father convict Khan son of Pir Bakhsh were tried for the murder of Mst. Zarina Bibi and Mst. Riaz Bibi, aged 20 and 25 years respectively. The motive alleged was that Khan had asked Mst. Saleem Bib alias Sammo, P.W.7, about hands of her above two deceased daughters for his son Noor Muhammad, appellant, and Mazhar Ali, which she declined and contracted Nikah of her aforesaid deceased daughters with Hamayun Khan and Abid Hussain, both sons of Allah Ditta about three and half years prior to the incident. The learned Sessions Judge awarded, inter alia, death sentence to convict Noor Muhammad and imprisonment for life to convict Khan. They filed the above appeal, whereas the learned Sessions Judge made the above murder reference. The above appeal and the murder reference were disposed of by the above judgment of the Division Bench of the High Court in the above terms. Thereupon, they filed a petition for leave to appeal. Leave to convict Khan was declined, whereas leave to convict Noor Muhammad, the present appellant, was granted to the extent of examining the propriety of the sentence awarded to him in the light of the circumstances of the case. In support of the above appeal Mr. M.A. Zafar, learned Advocate Supreme Court appearing for the appellant, has urged that the death sentence in the instant case was not warranted for two reasons, namely (i) that the motive alleged by the prosecution, namely that three and half years prior to the incident Khan had asked for the hands 'of the two deceased daughters of P.W.7, complainant Mst. Saleem Bibi, was not so strong as to prompt the appellant to commit above double murder particularly keeping in view the fact that during these three and half years not attempt was made by the appellant to harm the two deceased or to any other member of the family including their would be husbands, and (ii) that probably the appellant had acted under undue influence of his father Khan who was co-accused in the instant case and was awarded life imprisonment. We are not impressed by the above two submission. The trial Court as well as the High Court found no mitigating circumstances warranting award of lesser sentence to appellant Noor Muhammad. It may be observed that the normal sentence for an offence of murder is death sentence. This is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant imposition of lesser sentence namely imprisonment for life. We are unable to agree that in every case where the motive alleged by the prosecution appears to be weak or where a convict can be said to have acted under the influence of his elder, lesser sentence is to be awarded. The question of a lesser sentence is to-be viewed with the facts of the case involved. It cannot be accepted as a universal rule that whenever the motive alleged by the prosecution is found to be weak or is not proved, the Court is bound to award lesser sentence than death for a murder, nor can it be said that a convict is entitled as a matter of right to claim lesser sentence than death when he allegedly acts under the influence of his father or any other elder member of family. In the present case appellant Noor Muhammad committed double murder of two young girls who had not given any cause of complaint to him; which could have justified the commission of the above offence. Deceased Mst. Zarina Bibi received as many as 14 injuries, out of them 9 were stab wounds. Whereas deceased Mst. Riaz Bibi received 10 injuries, out of them there were 6 stab wounds. The refusal on the part of their mother to give their hands to appellant Noor Muhammad and his brother Mazhar could not have justified the commission of the double murder. The brutal and gruesome manner in which the murders of the above two innocent young girls were committed do not warram any leniency in awarding sentence to appellant Noor Muhammad as rightly observed by the learned Sessions Judge. We are, therefore, of the view that the above appeal has no merit. We accordingly dismiss the same. However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. C Sentences awarded should be such which should act as a deterrent to the commission of offences. One of us (Ajmal Mian, C.J., as he then was) has highlighted this aspect, inter alia in the case of State through the Advocate- General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), relevant portion whereof at page 19 reads as follows:-- (3) It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecured. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case ill hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution the technicalities should be overlooked without causing any miscarriage of justice." The above aspect may be kept in view by the Courts below while deciding the question of guilt or sentence. N.H.Q./N-49/S Appeal dismissed.