2002 PLP 1966 (SCMR)

RANA BHAGWANDAS, J.‑‑‑Leave to appeal in this case was granted to consider the question of sentence of appellant Ghulam Yasin only, who was sentenced to death and fine of Rs.15,000 or in lieu thereof to undergo R.I. for one year for committing Qatl‑i‑Amd of deceased Noor Ahmad and Khadim Hussain on or about 19‑2‑1993 at about 8‑00 p.m.

2. On appeal from the judgment and conviction, appellant's sentence of death was confirmed while sentence of fine was substituted by compensation in terms of section 544‑A, Cr.P.C. to be paid to the heirs of the two deceased on each count or to undergo R.I. for six months in default. He was also‑ convicted under section 148, P.P.C. and sentenced to R.I. for two years, which was upheld. Alongwith the appellant seven other co‑accused were also tried and convicted on the charge under section 148, P.P.C. of seven co‑accused two were further convicted under section 337‑A(ii), P.P.C. and sentenced to R.I. for two years each and to pay Arsh of Rs.10,

146. Remaining' five co‑accused were convicted under section 337‑L(ii), P.P.C. and sentenced to R.I. for two years each and to pay Daman of Rs.15,000 each. Ninth accused namely Lal son of Fazal was, however, acquitted by the trial Court. In appeal sentences of remaining seven co‑accused for imprisonment were reduced to, the period of imprisonment already undergone. Amount of fine by way of Daman and Arsh was, however maintained.

3. Unfortunate episode culminating in the death of deceased‑Noor Ahmad and Khadim Hussain occurred on 19‑2‑1993 in the courtyard of the house of the appellant and his father at village Rao Bela Sharqi within the jurisdiction of Police Station Mehmood Kot, District Muzaffargarh. As per F.I.R., complainant‑Ghulam Hussain P.W.6, his brother deceased‑Khadim Hussain and Ghulam Hashim P.W.7 were present in the house alongwith their father deceased‑Noor Ahmad when they heard commotion outside the house. They went out and saw appellant‑Ghulam Yasin armed with a .12 bore gun and his eight companions carrying Sottas and hatchet individually, standing in the courtyard of the house hurling abuses on the complainant party and raising Lalkara to the effect that Noor Ahmad should be brought out. At this moment, Khadim Hussain (deceased) went forward and stood by the intervening wall of the houses of the two parties. Meanwhile, accused Allah Nawaz exhorted appellant‑Ghulam Yasin that Khadim Hussain (deceased) should not be spared. Taking lead, Khadim Hussain (deceased) jumped over the wall and advanced towards the accused party, whereupon Ghulam Yasin fired at him hitting on his chest. Noor Ahmed (deceased) went forward who too was fired by the appellant at the exhortation of his co accused. Thereafter, complainant and his brother Ghulam Hashim went forward; who were also injured at the hands of the co‑accused by means of Sottas and hatchet. Mst. Sarwar Mai and Mst. Naseein Mai from the complainant party also appeared at the scene. They beseeched the appellant's party and rescued the complainant party. Khadim Hussain and Noor Ahmad on receipt of fire‑arm injuries fell down and succumbed to the injuries on the spot. Ghulam Hussain P.W.6 set the law into motion by lodging F.I.R., which was recorded by S.H.O. Nazir Ahmad P.W.12. At the conclusion of the trial, appellant and co‑accused were convicted and sentenced as aforesaid. Appellant's appeal before the High Court failed with the partial modification with regard to the sentence of fine while sentence of imprisonment of co- accused was reduced to that already undergone.

4. Appellant as well as co‑accused preferred a petition for leave to appeal against the judgment and conviction of the Lahore High Court. Leave to appeal was granted to the appellant whereas petition for leave to the extent of remaining co‑accused was disposed of as having become infructuous as they had already undergone the entire sentence.

5. Sheikh Khizar Hayat, learned Advocate Supreme Court for the appellant has addressed us on the quantum of sentence. According to the learned counsel, this .was a case of sudden flare‑up resulting in loss of two human lives without any pre‑concert. He submitted that the circumstance that two deceased persons went to the courtyard of the house of the appellant, one of the deceased having scaled over the intervening wall clearly suggests and is indicative of the fact that there was no direct and specific motive on the part of the appellant to commit Qatl‑i‑Amd as defined in law. He next contended that motive for commission of the crime, as divulged in the F. I. R. that the complainant party suspected co‑accused Sabir Hussain to be on illicit relations with Mst. Najma wife of complainant‑Ghulam Hussain, which was complained to the accused party and on that account they harboured a grudge against the complainant party is hardly believable. Lastly, learned counsel urged that there being no intention on the part of the appellant and his co- accused to commit the murder of the deceased, appellant in all probability appeared to have exceeded the right, of exercise of private defence in that he apprehended serious mischief to his person and property as well as privacy of home at the hands of the complainant party. Learned. Assistant Advocate- General Punjab has, however, controverted the submissions and supported the death sentence already confirmed.

6. We have carefully considered the submissions of the learned counsel in the light of peculiar facts and circumstances of the case, which are not disputed. Admittedly, complainant party and the appellant party are close neighbourers and their houses are separated by an intervening wall. Taking up the circumstances relating to motive for the commission of double murder, analysing the circumstance that it was the complainant party who suspected co‑accused‑Sabir Hussain to be on illicit relationship with Mst. Najma wife of Ghulam Hussain P.W.6; the grudge or ill‑will, if any, would in all reasonableness lie on the side of the complainant party rather than the appellant. Prosecution case with regard to motive even if accepted, on its face value, would not appear to prompt the appellant party to take the lives of two persons in the manner as given out. It is the case of Ghulam Hussain P.W.6 that he was suspecting illicit connections of accused‑Sabir Hussain with his wife. To quote "we had complained about the same to the accused. That was taken ill by the accused and for that reason the accused had come armed and had attacked us". During his cross‑examination this star witness stated that his father‑Noor Ahmad and his mother‑Sarwar Mai had complained to the accused about illicit connections. He added that they had complained before accused‑Lal son of Elahi Bakhsh father of, accused‑Sabir Hussain. This complaint was lodged three days before the occurrence. He conceded that accused Lal had not accepted the illicit connections and declared that his father and mother were telling' lie. A Punchayat was convened on Friday for clarification by Sabir Hussain, in which the accused had participated, which took place on the date of occurrence. According to the witness, the accused could not satisfy the complainant party. Punchayat had dispersed at about noon time. He added that his wife Mst. Najma was neither related to appellant‑Ghulam Yasin nor accused‑Sabir Hussain. On further probe, he elaborated that "we were suspecting illicit connections for a period of three months before the occurrence". In their respective statements, appellant‑Ghulam Yasin as well as accused‑Sabir Hussain and for that matter all other accused have denied indictment with regard to illicit relations between Mst. Najma and Sabir Hussain. Be that as it may, assuming without deciding, that suspicion of the complainant party was not untrue, this circumstance per se would not constitute a strong motive on the part of the appellant and his party to commit the murders of the complainant party. In all probability it might give rise to bad blood and bickering between the parties, not necessarily persuading the appellant and his party to take away the lives of two innocent human beings.

7. The circumstance that deceased‑Noor Ahmad was called out or that on hearing commotion, complainant‑Ghulam Hussain and others came out of their house and saw the accused party, proceeded forward towards the courtyard of appellant's house and Khadim Hussain even took the risk of scaling over the wall and went near the party of the appellant would tend to suggest that something quite untoward and unpleasant occurred at the spur of the moment motivating the appellant to use his shotgun. In fact what transpired between the parties has not been divulged by any of the witnesses or the accused persons, which remains shrouded in mystery. In all probability, appellant appears to have acted in the exercise of his right of private defence, which undoubtedly would not extend to the commission of murder. It has, therefore, been frankly conceded that while using the deadly weapon, appellant exceeded his right of private defence. It might occur to one's mind that the appellant was duly armed with a lethal‑weapon whereas the complainant party was completely unarmed, thus, there was hardly any occasion of imminent danger to the life and property of the appellant, the fact remains that the appellant appears to have been overpowered by his sentiments and in a heat of passion, he killed the two deceased by reckless use of his fire‑arm. At any event, there was no mens rea on the part of the appellant to commit the heinous crime of twin murder, which appears to be neither premeditated nor intended. It could at best be a case of culpable homicide not amounting to murder and, thus, would call for mitigation of sentence. Indeed no invariable rule of universal application can be laid down and each case must be decided on its own merits.

8. No doubt, trial Court, was deeply impressed by the brutal and cruel conduct of the appellant in taking away two human lives without much justification and it was justified in convicting the appellant on the charge of committing Qatl‑i‑Amd, neither the trial Court nor Appellate Court deeply analysed the aforesaid circumstances while determining the quantum of sentence to meet the ends of justice. We do not mean to lay down a general law that where a person looses his control over his sentiments he may invariably be dealt with leniently. Facts of each case would be the determining factor for the award of capital punishment prescribed by law or mitigation of sentence. Indeed no invariable rule of universal application can be laid down and each case must be decided on its own merits.

9. In the facts of instant case, however, we are inclined to the view that appellant is entitled to the award of lesser penalty of imprisonment for life, which would be quite consistent with the ends of justice and in line with the law declared by this Court from time to time. We are fortified in this opinion by Muhammad v. Ghaus (1972 SCMR 264), Faiz Muhammad v. State (1986 SCMR 337), Abdul Shakoor v. State (1986 SCMR 1246), Sada Hussain v. State (1991 SCMR 158) and Imtiaz v. State (1996 SCMR 1937).

10. For the aforesaid facts and circumstances, this appeal is allowed to the extent indicated above and while maintaining conviction of the appellant, we modify the sentence from death to imprisonment for life. Sentence of compensation awarded by the High Court would remain unaltered. (Sd. ) Rana Bhagwandas, J. I am appending my dissenting note. (Sd.) Syed Deedar Hussain Shah, J. I agree with the judgment of my learned brother Mr. Justice Syed Deedar Hussain Shah, J. (Sd.) Faqir Muhammad, Khokhar, J. SYED DEEDAR HUSSAIN SHAH, J.‑‑‑I agree with the esteemed views expressed by my learned brother Mr. Justice Rana Bhagwandas regarding Ghulam Yasin appellant's conviction and sentence, but so far as modification of sentence is concerned, I am not in agreement with him, for whom I have great regard, therefore, with profound respect I am adding my separate note.

2. The facts of the case need not be repeated here, because the same have already been given in the judgment rendered by my learned brother.

3. As the occurrence had taken place outside the houses of the eye witnesses, therefore, they were quite natural, who also received injuries on their persons at the hands of the accused. Appellant Ghulam Yasin was the first maternal cousin of both the eye‑witnesses and the other appellants were also related to these witnesses. There is no indication on the record to show as to why these witnesses would leave out the real culprits of their father and brother and the persons who had caused injuries to the witnesses, and instead falsely implicate the present appellants for the said brutal and heinous crime. The medical evidence furnished by the prosecution fully supported the ocular account. There is no admissible evidence on the record to establish the defence version. No direct evidence was led by the defence to prove its version. The defence version of the incident was unbelievable. Noor Ahmad deceased was 50 years old and an elder member of the family and it was not believable that he would go with his grown up sons to abduct or molest his young relative Mst. Manzooran. It was also unbelievable that no male member of the family was available in the house of Mst. Manzooran at the time of her alleged abduction. I have not the slightest hesitation in rejecting the version of the defence.

4. Now I would like to discuss the above‑referred cases cited by my learned brother. In Muhammad v. Ghaus (supra) this Court held that:‑‑ "It was thus a case of two opposite versions, each side claiming that the other was the aggressor. The learned Additional Sessions Judge accepted the complainants' version mainly because the complainant party had suffered a much greater number of injuries than the accused party. The learned Judges in the High Court have found that in reaching the conclusion that the accused party was the aggressor, the learned trial Judge had ignored certain basic admissions in the prosecution evidence, which clearly produce an opposite result. It is pointed out that Hayat, deceased, had advanced towards Ghaus just when the latter passed in front of Dhara of Ahman. Muhammad, P.W.3 admitted that "at the time, the four accused appeared at our Dhara, and when Nawaz shouted that they had come to avenge the incident of day before, we got up and advanced towards the accused." In Faiz Muhammad v. State (supra) it was laid down as under:‑‑ "

3. Leave was granted in this case in order to reassess the evidence on account of certain features appearing therein and also to evaluate the criminal liability of the convicts in all the circumstances of the case. The circumstances appearing in the evidence in this behalf were that the alleged crime weapons, namely, two blood‑stained Sotas were recovered from Said and Khan appellants and Dang Bansi, with disintegrated blood marks was secured from Faiz appellant, on the fifth day of the occurrence, that the explanation for the delay of four days in lodging the F.I.R. to the effect that the complainant had received injuries on his knees as a result of which he was unable to walk, was not supported by the medical evidence which indicated no such injuries, that injured witness Abdul Sattar did not testify to the presence of complainant Mukhtiar at the time of occurrence and finally no specific part was attributed to any of the appellants. In view of these circumstances the main question was as to the individual liability of each culprit, particularly when the evidence indicated that there was a sudden flare up on Warabandi and it was not possible to determine who caused the fatal blow or even the grievous injury to Abdul Sattar P.W." In Abdul Shakoor v. State (supra) Dr. Muhammad Siddiq medically examined Saboor accused on 24‑7‑1975 and found 11 lacerated and contused wounds of various dimensions on different parts of his person but found all these 11 injuries to be 'simple'. The same doctor also medically examined Sarwar accused and found 4 simple injuries on his person, caused by blunt and sharp‑edged weapon. Another Dr. Agha Muhammad Zafar medically examined Abdul Shakoor accused/appellant and found a stab incised wound on the back of chest caused by sharp‑edged weapon and six bruises, lacerated wounds and abrasion on various parts of his person, caused by blunt weapon and all the injuries were declared simple. In this citation it was laid down by this Court that:‑‑ "Leave was granted by this Court vide order, dated 1‑12‑1981, on the consideration that the learned High Court Judges found it a case of fight on sudden quarrel during gambling, without premeditation or previous enmity, but denied benefit to the appellants of Exception IV to section 300, P.P.C. because they thought that the accused 'acted in a cruel manner and took undue advantage against the deceased and the witnesses whc were all unarmed', therefore, to hold the complainant party 'being unarmed' is inconsistent with the injuries suffered by the accused/appellants side; which fact prima facie has been established by the medical evidence " "Therefore, the matter boils down to that it was a sudden quarrel and sudden, fight. The stress which is laid upon this is to be remarked. The degree or kind of provocation does not so much enter into consideration here as the suddenness of the dispute and of the fight that follows. The lapse of time between the quarrel and the fight is, therefore, a very material consideration. The number of wounds is not the criterion but the position of the combatants with regard to their arms and the use of those arms are the considerations to be kept in mind when applying Exception IV to section

300. P.P.C In Sada Hussain v. State (supra) this Court observed as under:‑‑ "

5. The admitted position is that the incident has occurred in Khata No.267 which was in occupation of the accused persons. They were mending the Banna of the land, therefore, the complainant party should have resorted to the legal process if they were under the bona fide belief that they were the owners of the disputed land. The right of private defence of property arises when specified offence against property is committed. A party in possession for land is legally entitled to defend his possession as an owner has a right to defend his possession and if need arises to turn out a trespasser. A person while exercising this right should, however, not use more force than reasonable to defend his possession. The learned counsel for the petitioner has referred to sections 97 and 441, P.P.C. in support of his contention. The finding of the High Court that the respondent had a right of private defence of property is not open, to any exception. There can also be no second view except that the accused has exceeded his right of defence of property by taking the life of the deceased. The complainant party had gone to the land without any arm. The accused had not been attacked by the complainant party. The accused had not received any injury. There was no aggravated form of offence which hesitated the accused to cause greater force than was necessary by using the fire‑arm . ..." In Imtiaz v. State (supra) it was observed by this Court that:‑‑ "Deceased was found to have been shot at inside the house of the accused‑‑No explanation was available on record for the presence of the deceased in the house of the accused at odd hour of the night and the defence plea that accused had shot at the deceased in exercise of the right of private defence of property appeared to be well‑founded.

5. The facts and circumstances mentioned in the above‑authorities, in my humble opinion, are quite different and distinguishable to the facts and circumstances of the appeal in hand and not helpful to the case of the appellant for lesser sentence.

6. It would be advantageous to mention here that in this case neither counter case was lodged, nor direct complaint was filed before the competent Court of Law at the initial stage by the defence to substantiate its plea of house‑trespass by both the deceased.

7. In the present case Dr. Muhammad Rashid (P.W.9) conducted the post‑mortem examination on the dead body of Khadim Hussain deceased and found the following injuries, which resulted in death of the deceased:‑‑ "(1) About 80 shot wounds each of about .3 c.m. x .3 c.m. to .4 c.m. x .4 c.m. in diameter were present on left upper arm and frontal shoulder. These were entrance wounds about 15 exit wounds were present on medical and back aspect of left upper arm. (2) There were about 48 shots wounds on frontal aspect of left side of wounds on frontal aspect of right side of chest close to (4) One shot wound in epigastruium right to mid line and two shot wounds left to mid line."

8. A specific role of firing was attributed to Ghulam Yasin appellant, who caused fire‑arm injuries to the innocent deceased. The plea of the defence is that Khadim Hussain "deceased went forward and stood by the intervening wall of the houses, and on his advancing further, appellant Ghulam Yasin fired at him, as a result of which he fell down. Similarly, Noor Ahmad, father of Khadim Hussain deceased, was also fired at by Ghulam Yasin at the exhortation of his co‑accused. Khadim Hussain and Noor Ahmad died on the spot. Both the deceased were admittedly empty- handed and they had not even attempted to cause any simple or grievous injury to the accused party. Had appellant Ghulam Yasin intended to frighten the complainant party he should have fired at the deceased at their legs or lower parts of the bodies, so that they may be frightened, or the accused -party could have caught hold the deceased persons and handed over them to the police for taking necessary legal action, but all these factors are not available on the record. The mere plea of the appellant that he found the deceased near the wall of the houses and in self‑defence he fired at them, is ridiculous, irrational, illogical and untenable, which cannot be accepted. Even, there is no allegation that both the deceased attempted or caused any damage to the property of the accused/appellant. The brutal murder of two innocent persons by fire‑arm is proved against appellant Ghulam Yasin beyond any shadow of doubt. The plea of the defence that though the appellant has committed the offence of Qatl‑i‑Amd, but its normal sentence of death for Qatl‑i‑Amd may not be awarded, is also not sustainable. The: Court time and again has held that if a case is proved for Qatl‑i‑Amd, normal penalty of death should be awarded.

9. In the case of Manzoor Ahmed v. State (1999 SCMR 132) the appellant also pleaded right of private defence, though he was found injured, and the injury as given by the medical officer appearing as P.W.4 is as under:‑‑ "An abrasion mark 4‑1/2" x 1/4" with scab and over some part it was being peeled off, over back upper middle lower part left forearm. " and after perusing the facts and circumstances of the case, this Court observed as under:‑‑ "This was described a simple in nature and with blunt mean. There is no proof that the injury was caused by the' deceased rather it suggests to be result of some skin disease or cause of striking against some hard surface and this injury can also be explained on several other grounds. P.W.7 has given the reason for this injury as 'we tried to catch hold of the accused when Manzoor Ahmad accused struck against a wall'. This portion of the statement has not been challenged or discredited in cross‑examination. I am, therefore, of the view that in absence of any proof that the injury was caused by the blow of the deceased there remains no justification for showing any indulgence in matter of awarding normal sentence provided under the law. The prosecution has been able to prove that the murder committed by the appellant, was in most cruel and brutal manner as a defence-less and an unarmed person was given numerous injuries on vital parts of his body when he was lying down in a helpless state. On the other hand, the appellant has not been able to prove any mitigating circumstances to justify lesser penalty. Even otherwise, keeping in view seven incised wounds on the person of the deceased almost all on very vital parts of his body would suggest that the appellant dealt with deceased very brutally and callously on a very petty grievance. It is settled law 'to punish the offender in proportion to the character and extent of his guilt, to be deterrent for him and for the rest of the society without being unnecessarily harsh or needlessly indulgent'." In Inayat Masih v. State (1980 SCMR 937 at page 940) this Court held as under:‑‑ "Except for his own ipse dixit in support of the said plea taken by him, there is no direct or circumstantial evidence to support him in that behalf. Not only this, but the said plea taken by the petitioner seems to be wholly untenable because had the deceased attacked him with a dagger he should have received at least some scratches, during the ensuing grappling, but there is nothing on the record to support him. We are, therefore, satisfied that the trial Court, as well as the High Court both had rightly rejected the said plea taken by the petitioner. " In Muhammad Aslam v. State (2001 SCMR 223, at pages 229 and 230) this Court observed that:‑‑ "It may be pointed out that the motive is always in the mind of person who intends to take life of another, so it would be only in his knowledge, therefore, the failure on the part of the prosecution to show motive would not be fatal to its case. In the instant case, the, evidence adduced by the prosecution is strong, reliable and confidence‑inspiring, which could not be challenged. So far the motive, which is not assigned in this case, same would not be mitigating circumstance for reduction of the sentence of appellant Rehan Ahmed from death to life imprisonment " "In the instant case, appellant Rehan Ahmed alongwith appellants Adrian Ansari and Muhammad Aslam, went to the residence of the deceased on a motorcycle. The appellant Rehan Ahmed was armed with a dagger and asked the deceased to take him to his room on the first floor. The deceased was unarmed and helpless. He was caught hold of by appellants Adnan Ansari and Muhammad Aslam, when the appellant Rehan Ahmed mercilessly and cruelly inflicted stab wound on the vital part of the deceased, which resulted in his death. In the circumstances, no leniency in award of normal sentence of death as provided by section 302, P.P.C. can be shown. Both the Courts below have concurred in awarding the death sentence to appellant Rehan Ahmed and we find no justification to interfere with the said sentence because the Courts are required to do justice strictly in accordance with law and should not favour the culprit by awarding lesser punishment than the one prescribed by law." In Sirajud Din v. Misbahul Islam (PLD 1977 SC 14, at page 23) this Court held as under:‑‑ "However, assuming for arguments' sake even if it be taken to be a sudden fight, yet the third respondent would not be entitled to the benefit of Exception 4 as the deceased not being armed was not on an equal footing and, therefore, stood in a disadvantageous position. In such circumstances the benefit of Exception 4 cannot be had. The reference to the case cited as Miran Bakhsh v. Niaz and another (1975 SCMR 337) is also inapt, for, in that case the complainant party had taken exception to the visit of the accused party to the village over which the parties fought duly armed with deadly weapons and in the course of the fight persons from both the sides had suffered injuries. It was, therefore, not a case of sudden fight and special leave was refused in that case on other consideration. The culpability of the third respondent in causing the knife blow is established beyond doubt which resulted in the death of deceased. The High Court, thus in conceding to the respondents the right of self‑defence has ignored the overall effect of the evidence which, if considered in the proper perspective, would have brought out that it was not a case where even the foundation of such a plea was laid in the evidence, muchless that it was indicated in the evidence. This has resulted in miscarriage of justice. As for the sentence of death imposed on Baz Mir, the third respondent, there is ample justification for it, for, it was he who had given the Lalkara and not only that but also caused the fatal knife blow to the deceased. His sentence of death is, accordingly maintained."

10. This Court in Abdul Wahab v. State (1999 SCMR 1668) observed that "Motive shrouded in mystery" by itself is not a mitigating. circumstance for lesser sentence". Same view has been discussed in detail in Muhammad Nawaz v. State (2001 SCMR 1605 at page 1607) wherein this Court observed as under. "'Motive shrouded in mystery' is not a legal principle which can be applied in all murder cases for reduction of capital sentence where there is no motive alleged/proved by the prosecution or where initially a motive is alleged but the same is not proved or withdrawn or a different motive appears to the prosecution evidence. 'Motive shrouded in mystery' by itself is not a mitigating circumstance for lesser sentence. Where there is no motive alleged but the guilt of the accused is otherwise established on the basis of evidence, it could be said that in such a case the motive is 'shrouded in mystery' and that it cannot be said as to what was the precise and immediate reasons for the murder. There is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved on the other hand if the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If the normal sentence was not awarded, the Court is required to make out a case for reduction of sentence on the basis of mitigating circumstances. Therefore, in murder cases where no motive is alleged, the same remains shrouded in mystery, yet, if the prosecution establishes its case against the accused beyond reasonable doubt, the normal sentence awarded in such case is death, unless there are mitigating circumstances justifying award of lesser sentence."

11. The citations mentioned by me, in my humble view, fully support the prosecution version in this case. In the case in hand, there is no denial of the fact that the accused had committed the offence and the defence has only pleaded that sentence of death may be modified to that of life imprisonment, whereas in my opinion, there is no mitigating circumstance in favour of the appellant Ghulam Yasin for modification of his sentence from death to imprisonment of life.

12. In view of the facts, circumstances and the case‑law discussed above, I am of the considered opinion, that Ghulam Yasin appellant has committed Qatl‑i‑Amd of two unarmed innocent persons in a callous and brutal manner, therefore, he is not entitled to lesser punishment. The death sentence awarded to him by the trial Court and affirmed by the High Court, is upheld. By majority of two to one, Criminal Appeal No. 248 of 2000 is dismissed and death sentence awarded to the appellant is upheld. N.H.Q./G‑141/S Appeal dismissed.