1999 PLP 1668 (SCMR)

NASIR ASLAM ZAHID, J.

The above appeal arises out of the judgment dated 3-10-1994 of a Division Bench of the Lahore High Court dismissing the appeal filed by appellant Abdul Wahab alias Rehra while maintaining his conviction and death sentence under section 302, P.P.C. passed by the trial Court (Sessions Judge, Okara) for the murder of his mother-in-law. By order dated 16-1-1996, this Court granted leave to the appellant against the judgment of the High Court only to the extent of sentence. Leave granting order reads as under:--' "In this case the prosecution case is that Mst. Rani was married to the accused/petitioner and 2 children were born of this wed-lock. The spouses relations having become strained Mst. Rani left the house of her husband and started residing with her parents about 2 years prior to the occurrence. On the day of occurrence she had gone to Okara to attend the proceeding in her suit which she had brought for dissolution of marriage. (2) On 4-12-1989 the accused/petitioner, however, went to the house of Mst. Naziran, his mother-in-law, and killed her by dagger blows. The hue and cry attracted Farzand Ali, Muhammad Sharif and Zafar Iqbal P.Ws. who witnessed the occurrence. The accused was arrested on 6-12-1989 who was wearing blood-stained shirt and Shalwar. These were taken into possession. Some blood-stained earth was also recovered from the spot. ????????? (3) At the trial Zafar Iqbal and Farzand Ali furnished ocular evidence while Dr. Anwar Ali was examined in support of the injuries found on the person of the deceased. Further corroboration was sought from blood recovered from the spot and recovery of blood-stained clothes of the accused. Blood-stained dagger was also recovered by the police in presence of the recovery witnesses. It was found blood-stained. The blood-stained clothes and the, dagger were found of human origin. (4) Motive for the offence as alleged by the prosecution and relied upon by the learned trial Court was the fact that the petitioner's sons were with the deceased which she had refused to return to him which led to the present occurrence. (5) The learned trial Court considering the ocular evidence reliable, natural and confidence inspiring corroborated by the aforementioned recoveries and the strong motive found the accused guilty of cold-blooded murder of Mst. Naziran and on conviction sentenced him to death subject to confirmation by the High Court, under section 302, P.P.C. His appeal against the conviction was dismissed and the sentence of death was confirmed by the learned High Court. (6) The contention of the learned counsel for the petitioner that there must have taken place something between the parties because of the petitioner's demand for return of the minor sons which had led to the present occurrence, therefore, in the circumstances of the case the sentence of death imposed upon the petitioner was not in conformity with the principle governing dispensation of criminal justice. Leave is granted only to consider the quantum of sentence. " We have heard Mr. Muhammad Ibrahim Satti, learned, Advocate Supreme Court appearing for the pauper appellant, and Mr. Dil Muhammad Tarar, learned Advocate Supreme Court for the State, and have perused the relevant record.

2. Mr. Muhammad Ibrahim Satti, learned Advocate Supreme Court for the appellant first referred to the motive alleged in the F.I.R. alleged by Farzand Ali son of Chiragh, elder brother of Mst Rani. Motive in the F.I.R. is given as follows:

In his evidence complainant P.W. Farzand Ali gave the same motive when he deposed in his examination-in-chief as follows:-- "The motive for this occurrence that my sister Mst. Rani was married to the accused about six years back but the husband and wife were not having good terms, therefore, Mst. Rani came back to the house of her mother. My sister instituted a suit for dissolution of marriage against the accused. Abdul Wahab wanted the custody of his minor children but my mother refused and the accused murdered her because of that grudge. However, in the cross- examination he stated as follows: "It is incorrect to suggest that we do not want to hand over the children to the accused. My mother also wants that the accused may get custody of his children." He also denied that in the F.I.R. he had mentioned that his mother had refused to hand over the custody of the children to the accused and, therefore, he murdered her but, in the F.I.R., as observed, it is so recorded. P. W. 1 Zafar Iqbal, a neighbour, who has a shop next to the house of the deceased, on the fateful day, was sitting with others including the complainant Farzand Ali in his shop. According to the witness, he saw the appellant inflicting "Churri" blows on Mst. Naziran. In his cross-examination, he stated that it was not correct that Mst. Naziran was not ready to give custody of the children to the accused and that he had stated before the police that Mst. Naziran wanted the custody of the children to be handed over to the accused. He was confronted with his statement under section 161, Cr.P.C. wherein it was recorded that Mst. Naziran was not willing to hand over the custody of the children to the accused. According to learned counsel for the appellant, it follows from the F. I. R. and the statement of the complainant as well as of P. W. I Zafar Iqbal that the refusal of Mst. Naziran to hand-over the custody of her grandchildren to the accused was advanced as a motive for the murder by the accused, but then this motive was either withdrawn or not pressed and, in the circumstances, it is a case where the exact cause for the murder was shr6uded in mystery which gives a valid ground for reducing the sentence of death to life imprisonment.

3. According to Mr. Muhammad Ibrahim Satti, learned counsel for the petitioner, the principle is now well-settled that where the exact cause for the murder is shrouded in mystery, accused is entitled to reduction of the sentence of death to life imprisonment. Learned counsel has referred to the following case-law: - (i) Vali Muhammad v. Bajoo (1978 SCMR 257): Reasoning of this Court in awarding lesser sentence in the case was as follows:

"The only question which remains for consideration is, that of the sentence to be passed against the respondent, Bajoo. As both the eye?witnesses claimed to have come to the Wardat, after hearing the alarm, as submitted by Mr. Junejo, there is no evidence to show how the occurrence between this respondent and the deceased had begun. Additionally, we would repeat here that we are not impressed by the evidence of motive produced by the prosecution. Accordingly in the circumstances, the prosecution has failed to prove that the occurrence was premeditated murder. As the possibility of a sudden fight cannot be ruled out, we would give this respondent the benefit of the lesser penalty. " (ii) Sher Ali v. State (1980 SCMR 291): In this case, two Judges of the Lahore High Court were divided in their opinions as regards the sentence. The opinion of one Judge was that the accused was not entitled to lesser penalty and the death sentence awarded to him by the trial Court was proper. However, Qaiser Khan, J. (as he then was) took the other view as follows:-- "Personally, I am of the opinion that in view of the fact that the parties were close relatives, that they had no serious enmity and that there were marks of pellets and bullet on the Burj in which the accused was present which could only be caused from the side of the Burj of the deceased, some thing did happen between the parties before the accused shot the deceased. Under these circumstances, in my opinion, the death penalty is not called for in the case. I would, therefore, accept this appeal to this extent that the sentence of death is commuted to the life imprisonment. The death sentence is not confirmed." On account of difference of opinion on the question of sentence, the matter was referred to the third Judge, who agreed with the view that no case was made out for reduction of sentence. In appeal, this Court agreed with the opinion of Qaiser Khan, J, on the question of sentence but gave no specific reason except allowing the appeal as follows:-- "We have heard Shah Abdur Rauf, Advocate on behalf of the appellant and Mr. Qasim Imam, A.O.R. for the State and after having fully considered all the relevant circumstances are inclined to agree with the view taken by Qaiser Khan, J. on the question of sentence. We would, therefore, allow this appeal to the extent the sentence of death against the appellant shall be set aside and the appellant shall, instead suffer life imprisonment." (iii) Ghulam Nazir v. State (1981 SCMR 805): In this case, the appellant had been sentenced to death for killing one Mst. Dhayani and sentenced to death by the trial Court which was confirmed by the High Court. This Court reduced the sentence to life imprisonment for the following reasons:

"From the perusal of the prosecution case it is clear that there was hardly any motive for the appellant to kill Mst. Dhayani inasmuch as he had without success sought the hand of the lady in the marriage 10/11 years prior to the incident and about 5 or 6 years later, Mst. Dhayani was betrothed to Hashim Khan, and even in relation thereto, the appellant had no ostensible grievance against her for there was nothing in the evidence to show that she had in any manner spurned the appellant. It is, therefore, difficult to believe that for this reason the appellant was pursuaded to go for Mst. Dhayani and put her to death. Mst. Malookan it may be noticed was not the target of attack but received injuries when she intervened to save her daughter. It would, therefore, appear that the real motive is shrouded in secrecy. In these circumstances, the learned Advocate-General stated that interest of justice will be sufficiently met if the sentence of death is altered to life imprisonment. We will, therefore, while not disturbing the other sentence alter the death sentence to life imprisonment. (iv) Sher Daraz Khan v. Statd (1983 SCMR 266): In this case also the sentence of death awarded to the appellant by the trial Court, which was confirmed by the High Court, was reduced to life imprisonment for the following reasons:-- "In the end the learned counsel urged that as there being no motive for the crime and the one put forward by the prosecution has been proved false, there must be some dispute earlier which annoyed' the accused/appellant and he committed that crime under an agitated state of mind. He referred to the statement of Jabali, P.W. wherein he stated that it was wrong to suggest that Sher Daraz was annoyed because the deceased had purchased land from Noor Zaman and was not going to share the same with the accused. He further replied to a question that he had stated in his statement under section 512, Cr.P.C. that the dispute over that land was over that land of our grandfather (confronted not so recorded). Thus, it appears that there was something on the spur of moment which resulted in the present occurrence. Considering this we alter the sentence of death to life imprisonment and fine of Rupees ten thousand (Rs. 10,000) or in default, 5 years' further R. I. and Rupees one thousand fine as compensation in default, six months' R.I. " (v) Arif v. State (1984 SCMR 124): Appellants in this case were convicted for murder but were awarded life imprisonment and their conviction and sentence were upheld by the High Court. The High Court did not accept the motive observing that in its view it was far? fetched. This Court dismissed that appeal of the convicts. There is no discussion in the judgment on the question of sentence. (vi) Mati-ur-Rehman v. State (1985 SCMR 489): Appellant was found guilty of the charge of murder and was sentenced to death by the trial Court. High Court upheld the conviction of the appellant but reduced the sentence of death to life imprisonment on the ground that the motive of offence was not satisfactorily established and was shrouded in mystery. This Court in dismissing the petitions for leave filed by the convict against his conviction and by the complainant for enhancement of sentence of the appellant confirmed the view taken by the High Court in reducing the sentence by observing as follows:-- "We are also satisfied that the imposition of the lesser sentence was proper in the circumstances of this case and the High Court was justified in reducing the sentence of death of Mati-ur-Rehman to that of life imprisonment." (vii) Ahamd Khan v. State (1985 SCMR 975): In this case, this Court reduced the sentence of death awarded to the appellant for the following reasons:-- "The question, however, for consideration is as to the sentence to be awarded to the appellant, In this behalf, learned counsel appearing for him submits that the motive put forward by the prosecution namely, the quarrel on the previous day over cleaning of the room is too trivial an a re incident to have prompted the accused to inflict such serious injuries on the deceased so as to cause his instantaneous death. According to learned counsel since the prosecution was not in a position to explain the origin of the fight and it is shrouded in mystery, appellant should not be visited with the extreme penalty of death. Learned Additional Advocate-General appearing for the State also supports the plea raised by the learned counsel for the appellant. We are also of the view that the peculiar facts and circumstances of the case fully justify that the benefit of the lesser sentence under the law should be granted to the appellant." (viii) Faqir Masih v. Mubarik Masih (1987 SCMR 697): While dismissing the petitions filed by the convicts against his conviction and by the complainant for enhancement of sentence awarded to the appellant, dealing with the question of sentence, this Court observed as follows:-- "Learned counsel for the petitioner in the other petition for enhancement of sentence has contended that the two reasons on account of which the High Court reduced the sentence; namely, age of the convict being 15 years at the time of occurrence and the failure of the motive alleged by the prosecution, could not be deduced from the evidence. He stated that although Mubarik Masih had asserted his age to be 15 years, the trial Court had estimated it to be more than that on the motive, he contended that the evidence has not been correctly appraised. There is no positive assessment by the trial Court either on the record or in the impugned judgment to show that the learned trial Judge had made any estimate of the age of Mubarik Masih. It is, therefore, not possible to set aside the judgment of the High Court in so far as this aspect is concerned. Moreover, the appreciation of evidence by the High Court regarding motive does not suffer from any infirmity and thus, there is no justification for this Court to reappraise the evidence in that behalf. The motive, as found by the High Court, was shrouded in mystery. - (ix) Nabi Bakhsh v. State (1988 SCMR 213) In this case, this Court reduced the sentence of death awarded to the appellant to life imprisonment holding as follows:-- "So far as Criminal Appeal No.257 of 1980 filed by Muhammad Afzal is concerned, since the prosecution has failed to prove any motive against Muhammad Afzal for committing the murder of Hamid-ud-Din, we think the penalty of death pill be uncalled for. Therefore, maintaining his conviction under section 302, P.P.C., we reduce his sentence from that of death to imprisonment for life. (x) Abbas Hussain v. State (1992 SCMR 320): In this case also, the sentence 'of death awarded to the appellant was reduced to life imprisonment by this Court as follows:-- "In the peculiar facts and circumstances of the case, it has not been clarified by either party as to what was the actual and immediate cause of occurrence as it is in the evidence that there was not such deep?rooted background of enmity existing between the parties. There appears to be a petty dispute between the parties over the teasing of the girls of the Mohallah. We hold the view that something serious happened immediately before the occurrence for which the appellants while armed with Churris opened an attack upon the complainant party and murdered two persons from the complainant side. Even the possibility of an altercation having taken place between the parties cannot be ruled out. Both the parties had been living in the same locality. We are convinced about the insufficiency of the immediate cause of unfortunate occurrence. In this view of the matter, we do not feel - inclined to uphold the death sentence. In the circumstances, the sentence of the appellants are altered from death to imprisonment for life. " (xi) Roheeda v. Khan Bahadur (1992 SCMR 1036): In this case, the sentence of death awarded to the convict was reduced to life imprisonment as follows:-- "As regards the sentence, since the motive as alleged in this case is not fully proved, we feel that the lesser penalty as provided under the law will amply meet the ends of justice." (xii) Muhammad Ishaque Khan v. State (PLD 1994 SC 259): In this case, trial Court had awarded life imprisonment but the sentence was enhanced to death by the High Court. While partly allowing the appeal of the convict, the sentence was reduced as follows:-- "The punishment awarded to an accused person in a criminal case entirely depends on the strength and circumstances established against him by the prosecution in the trial. Weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment to the accused in a criminal trial. We have already observed that in the present case the prosecution had altered specific motive against the accused persons which could not be established at the trial. What actually happened just before the incident remained shrouded in mystery and the parties have not taken the Court into confidence to review the full facts. In these circumstances, the trial Court rightly awarded the lesser punishment (if life imprisonment to appellant Muhammad Ishaque Khan. There was no justification for enhancement of the sentence of life imprisonment awarded by the' trial Court to appellant Muhammad Ishaq Khan to death, by the High Court in the circumstances of the case." ?(xiii) Zulfiqar v. State (1995 SCMR 1668): In this judgment, reference was made to a number of earlier judgments of this Court dealing with cases of accused of tender/younger ages and regarding the sentence to be awarded to them. Paras. 9, 10 and 11 of the judgment are relevant which are reproduced here:

"

9. A perusal of all these judgments will show that while awarding sentence to a young person up to the age of 16 years, such tender age has been taken into consideration leaning towards leniency. However, the ground of tender age also may not be the firm rule applicable in cases where the offence is heinous, premeditated, brutal and cruel. In cases where a young person of tender age commits a crime under the influence of his elders, the Courts have taken a lenient view and as a mitigating circumstance for a reduced punishment. While dealing with cases of tender age, besides this fact overall circumstances of the case have to be considered.

10. In Mushtaq Ahmed v. The State the uncle of the accused had been murdered about 20 years prior to the occurrence by the cousin of the deceased. So, at that time the feelings between the parties would have been at a high pitch. But in the present case the alleged enmity which has not been denied by either party is stated to be from the years 1966 and 1973 which according to the appellant happened before his birth. In cases of such old enmity in which the accused is not directly involved relating to his immediate and close relations like father, mother, brother, sister or uncle, and the rival parties have lived peacefully without any incident of revenge for about two decades then unless there are other mitigating circumstances it would not be proper to take lenient view of the offence committed by a person of tender age. In certain circumstances tender age have been taken into consideration for lesser sentence. But such course of action is possible only after examining the nature of offence, the manner and circumstances in which it was committed and also the enmity and rivalries which had sparked of the incident. In the present case merely on the question of age it is difficult to reduce the sentence.

11. The learned counsel then contended that the motive for the offence is not strong and seems to be shrouded in mystery. No doubt the enmity which is alleged to be motive occurred before the birth of the appellant. The parties were living in proximity but nothing happened during past 15/16 years. Therefore, there must have been some other reason which has not been disclosed by either side particularly the prosecution. Furthermore, the P.Ws. had witnessed the incident from some distance but what happened immediately before the appellant attacked, is not clear. No Lalkara has been alleged to the appellant to show that what was the motive for which he committed the murder. In these circumstances, we partly allow the appeal, convert the death sentence into life imprisonment with benefit of section 382-B, Cr.P.C. The sentence of fine of Rs.20,000 in default of payment 3 years' R.I. and in the event of realization compensation to be paid to the legal heirs of the deceased is maintained." (xiv) Intizar Hussain v. Muhammad Sarwar (1996 SCMR 872) In this judgment, reduction of sentence of death to life imprisonment by the High Court was confirmed by rejecting leave to appeal filed by complainant for enhancement of sentence. It was observed as follows:-- "It is evident that the High Court has not confirmed the death sentence of the respondents by giving good reasons. To being with, extreme youth of the convicts was taken into accounts and secondly, the immediate cause for murder was held to be shrouded in mystery. The record shows that both the respondents were in teens at the time of commission of the crimes. The requirements of section 367, Cr. P.C. have been complied with by the High Court in not confirming the death sentences in lieu of plausible reasons. We agree with the sentence having been given by the High Court to the respondents which would surely meet the ends of justice.

4. While citing case-law before us on the question of sentence, learned counsel also referred to the following judgments of this Court in which the death sentences awarded were confirmed: -- (a) Ghuncha Gul v. State (1971 SCMR 368).' While dismissing the plea for reduction of sentence made on behalf of the petitioner/convict; this Court held as follows:-- "The learned counsel for the appellant argued that the motive for the murder of the deceased as alleged by the prosecution, could not be accepted alongwith the deceased Abdullah Jan in the murder case of Anar- Gul. As already stated, the murder of Anar Gul had taken place 22 years age, and it is not clear how was the present appellant associated with that murder alongwith the deceased. Blood being thicker than water, it is quite possible that the emotions of the appellant were freshly ignited to avenge the murder of his brother at the hands of the deceased, even though rightly or wrongly he was also implicated in that murder alongwith the deceased at that time. However, it is irrelevant to discover the real motive of an accused person when, as in this case, his guilt for the offence is proved by direct and acceptable evidence. (b) Muhammad Nazir v. State (1985 SCMR 507): While dismissing the plea for reduction of sentence made on behalf of the petitioner/convict this Court held as follows:

"The deceased has been brutally murdered. The cruel act of the accused/petitioner does not merit any leniency as he caused four injuries with a knife in an unprovoked attack on Falak Sher deceased, We thus find no mitigating circumstances." Fazal Ghafoor v. State (1987 SCMR 136) In this case, the appeal of the convict was dismissed by this Court and the plea for reduction of sentence was declined for the following reasons:

"Mr. Zahoorul Haq, learned counsel for the appellant in his submission mainly concentrated upon the question of the sentence. He submitted that the deceased was a short tempered man of angry disposition and had even stabbed his own brother Nauroz Ali P.W. in a fit of anger. As there was no positive evidence that the accused-appellant had demanded any money from the deceased on the day of the occurrence and he had shot him on the latter's refusal to do so and considering his general angry disposition it should be presumed that he must have said something nasty which might have provoked the appellant-accused. In so far as the motive was shrouded in mystery the appellant was entitled to the lesser punishment. We cannot agree. It is true that there is no clear evidence as to what the immediate cause for the appellant firing upon the deceased was? But the law is that if ocular evidence of such a quality existed which was sufficient by itself to establish the guilt of the offender, the liability to punishment for the deed committed by him is not affected by the uncertainty with regard to the motive. See Arif and others v. The State 1984 SCMR

124. Thus, in this case, even if it is not possible to say with certainty as to what the appellant's motive for committing the crime was the fact remains that an innocent shop-keeper, who was standing at his shop in connection with his business, was fired upon without any provocation and brutally done to death. It is a wanton murder without any extenuating circumstances. We would, therefore, dismiss this appeal and uphold the sentence of death imposed upon him by the High Court."

5. We may also refer to a few more judgments of this Court on the question of sentence. In the case of Muhammad Mushtaq v. State (1973 SCMR 219) on the principles relating to awarding of sentence in capital cases this Court observed as follows:-- "The argument mainly rested on the youth of the petitioner, the absence of any known motive which was interpreted as a possible pointer to the suddenness of incident and finally the stray remark in the evidence of Muhammad Akram P.W. who stated that after the burial of the deceased, he heard some one say that the petitioner suspected the deceased of having cultivated illicit relations with the petitioner's sister. According to learned counsel, all these factors constituted mitigating circumstances, which would justify lesser penalty. Courts have always refrained from laying down any general rule defining the classes of cases in which lesser sentence may be imposed. For an intentional murder, in the absence of a~y mitigating circumstances, death sentence is the normal sentence. The murder in the instant case was indeed intentional. The petitioner came armed with a D.B gun and fired two shots at his victim which hit him on the vital parts. Injuries caused were sufficient in the ordinary course of nature to cause death. There is no precedent for the proposition that youth of 18 to 20 years should be awarded lesser sentence in a capital offence merely because of his youth, in the absence of any additional circumstances viz. having acted under a sudden impulse or under the influence of his elders. The stray remark in the evidence of Muhammad Akram about the alleged illicit affairs of the deceased with the petitioner's sister is vague and hearsay. Then as rightly observed by the learned Judges in the High Court, the petitioner was also responsible for ending a young life. Therefore, this is not a proper case for interference by this Court in the matter of sentence. In Ali Hussain v. Mukhtar (1983 SCMR 806), while considering the question of sentence to be awarded to the convicts, this Court held as follows:-- "Lastly, the learned counsel argued regarding the quantum of sentence. His argument was that there appeared no reason for Mumtaz accused/appellant to stop the deceased from visiting Ch. Barkatullah, M.N.A. who was a Party Leader of both the sides; the prosecution did not come out with the whole truth regarding the motive. Possibility of the deceased having played a role to discredit the accused or having made any aspersions on his personal loyal to the party or to the M.N.A. concerned cannot be excluded. It was further contended that the deceased in his dying declaration and the other eye-witnesses produced at the trial did not take the matter any further as to why the accused had asked the deceased not to visit Ch. Barkatullah, M.N.A.. Motive, though not a sine qua non for bringing the offence of murder home to the accused, is relevant and important on the question of sentence. In the instant case the motive alleged by the prosecution remains obscure and it cannot be positively maintained that the deceased was stabbed just for refusing to stop seeing Ch. Barkatullah, M.N. A. It seems that there was something else which had actually enraged the accused to attack the deceased. Thus, for the safe dispensation of justice we consider that life imprisonment, in the case in hand, would meet the ends of justice. Accordingly, we convert the death sentence, awarded to Mumtaz accused/appellant to life imprisonment and a fine of rupees fifty thousand (Rs.50,000) in all or 5 years' R.I. in default. The amount of fine, if recovered, shall be paid to the heirs of the deceased. Mushtaq's Appeal No. 192 of 1978 against the conviction under section 13 of Arms Ordinance is dismissed." In Nawaz Khan v. Ghulam Shabbir (1995 SCMR 1007), the question of sentence was decided by this Court as follows:-- "Adverting to the question of sentence raised by the learned counsel for Nawaz Khan, we find that Abdullah Khan (P.W.9) and Muhammad Akhtar (P.W. 10) have deposed about the motive but they were no present when the incident of motive took place. The circumstances of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So, the real motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case because there is a wide difference between the two alternative sentences--death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishments under section 302, P.P.C. as a matter of abundant caution." In Talib Hussain v. State (1995 SCMR 1776), on the question of sentence, reference was made to a number of judgments of this Court ... Paras. 15 to 17 of this judgment are relevant which are reproduced here:

15. In the last it was vehemently contended by Mr. Awan that since the motive alleged was too weak to prompt the killing of three persons by the appellants, the facts of the case do not warrant the award of maximum penalty of death to appellants Nos. 1 and

3. In support of his above contention, he has referred to the following cases: (i) Muhammad Iqbal and another v. The State (1984 SCMR 1184); (ii) Muzammal Din and another v. Nur Hussain and others (1985 SCMR 495); (iii) Abbas Hussain and another v. The State (1992 SCMR 320); (iv) Muhammad Ishaque Khan and others v. The State and others (PLD 1994 SC 259); (v) Abdul Aziz v. The State and others (1994 SCMR 35); (vi) Muhammad Saddique v. The State (1994 SCMR 88); (vii) Muhammad Bashir v. Khalid Mehmood and. another (1994 SCMR 1606) and (viii)Muhammad Din alias Manni and another v. The State (1994 SCMR 1847).

16. In the above cases mentioned at Serial numbers (i), (iv), (vi) and (vii), this Court had reduced the sentence from death to imprisonment for life not on the ground that the motive alleged was weak but on the grounds that the motive was not proved or that something might have happened immediately preceding to the incident which was not brought on record. Whereas in the case at Serial number (iii), the Supreme Appellate Court while dealing with an appeal against the conviction under section 302/34, P. P.C., recorded by the. Special Court under the Speedy Trials Ordinance, 1991, held that since actual immediate cause of occurrence had not been clarified by either of the parties, imposition of death sentence was not warranted. In the remaining cases, this Court had not interfered with the reduction of death sentence to that life imprisonment by the High Court on similar grounds.

17. We may observe that there is a marked distinction between a case in which prosecution alleges a motive but fails to prove it and a case in which no motive is alleged or the alleged motive is t6o weak. In the former case, the superior Court after taking into consideration the facts of the cases concerned, have reduced the sentence of death into imprisonment for life, whereas in the latter category of cases, the above rule has not been followed. We may point out that 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. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If above normal sentence is not to be awarded, this Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. In the present case, the appellants, though related to the deceased, trespassed into their Dera at Sehri time in the Holy Month of Ramazan and killed three male members of the family. If ' the incident would have taken place during day time in a Bazar or in the field one could assume that something might have happened immediately before the occurrence of the incident, which prompted the killing of the deceased, but in a case where the accused launched premeditated attack by trespassing into the Dera of the deceased and that too at Sehri time, one cannot presume that something might have happened immediately preceding to the incident. We are, therefore, of the view that it is not a fit case where this Court should interfere with the imposition of the sentence by the two Courts below.

6. From the case-law referred in the earlier paragraphs of this., judgment, it would appear that in some cases death sentences were confirmed and in other cases capital sentences were commuted to life imprisonment by his Court depending on the facts and circumstances of each case. In (i) Vali Muhammad v. Bajoo, the reason for reducing the sentence was that the prosecution had not established that the murder was premeditated. (ii) Sher Ali v. State is case where this Court confirmed the view of the minority opinion in the High Court and reduced the sentence. There is no discussion in the judgment. However, from the minority opinion, which was. confirmed by this Court, it follows that the evidence on record had shown that the accused had also been fired at. In (iv) Sher Daraz Khan v. State, the reason for reduction of sentence 'was that something happened on the spur of the-moment which led to the incident. (v) Arif v. State is a case where is no discussion on the question of sentence. (vi) In Matiur Rehman v. State, the lesser sentence awarded by the High Court was confirmed, by this Court but there is nor discussion on the question. In (vii) Ahmad Khan v. State, this Court reduced the sentence in the peculiar facts and circumstances of that case. The Court had also noted that the Additional Advocate-General appearing for the State had supported the plea on behalf of the convicts for reduction. In (viii) Faqir Masih v. Mubarik Masih, tender age of 15 years of the convict was also taken into consideration in confirming the view, of the High Court in awarding lesser. sentence. In (x) Abbas Hussain v. State, this Court referred to the peculiar facts and circumstances of the case and was of the view that something serious happened immediately before the occurrence and that the possibility of an altercation between the parties could not be ruled out. Sentence was reduced to life imprisonment. The above judgments do not lay down any rule of general application that where motive is shrouded in mystery, it is invariably a case for awarding lesser sentence. (iii) Ghulam Nazir v. State is a case where the Court observed that there was hardly any motive for the appellant to kill the deceased (i.e. the motive was too weak) and the real motive was shrouded in mystery. Death sentence was reduced to life imprisonment. In (ix) Nabi Bakhsh v. State, this Court reduced the sentence to life imprisonment on the ground that the prosecution had failed to prove any motive against the convict for killing the deceased. However, in a later decision (also cited in paragraph 5 of this judgment) in Talib Hussain v. State (1995 SCMR 1776), after review of case? law, it was held that absence of motive or weak motive is no ground for reduction of sentence, if otherwise the case against the accused is proved beyond reasonable doubt. In (xi) Roheeda v. Khan Bahadur, sentence was reduced as the motive was not fully proved. In (xii) Muhammad Ishaque Khan v. State trial Court had awarded life imprisonment which was enhanced to death, but this Court restored the sentence of life imprisonment awarded by the trial Court for the reason that the prosecution had altered the specific motive against the accused which could not be established at the trial and what actually happened just before the incident remained shrouded in mystery. In (xiii.) Zulfiqar v. State, apart from young age of appellant, for several other reasons, death sentence was reduced to life imprisonment. In (xiv) Intezar Hussain v. Muhammad Sarwar, reduction of death sentence to life imprisonment was confirmed by this Court on account of young age of accused and for the reason that the immediate cause of murder was held to .be shrouded in mystery. The above decisions also do not lay down any general principle of universal application that where "motive is shrouded in mystery", it is a mitigating circumstance and the convict is entitled to lesser sentence. In Muhammad Mushtaq v. State (supra) it was observed that Courts have always refrained from laying down any general rule defining the classes of cases in which lesser sentence may be imposed, but, for an intentional murder, in the absence of any mitigating circumstances, death sentence in the normal sentence. In Nawaz Khan v. Ghularn Shabbir (supra) evidence pointing provocation was noticed by this Court and that the real motive remained shrouded in mystery. Sentence was reduced.

7. As observed, leave was granted to the appellant/convict only on the question of sentence. Mr. Muhammad Ibrahim Satti, learned counsel for the appellant, had only advanced one contention for reduction of sentence and that is that a specific motive was alleged in the F.I.R. but that was either withdrawn or not pressed and, in the circumstances, it is a case where the exact cause of murder was shrouded in mystery. According to the learned counsel, this contention is sufficient for reduction of sentence of death awarded to the appellant. "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 in 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 guilty 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 reason for the murder. But in Talib Hussain v. State (supra) it was observed by this Court that 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 and that, if the prosecution proves that the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. It was further observed that 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. It was also observed in Talib Hussain v. State (supra) that, even where the alleged motive is too weak but the case is otherwise established beyond reasonable doubt the normal sentence is death. In such a case also it could be argued that the motive in the case was shrouded in mystery; yet in such cases also the normal sentence in a proved case is death. In a case where in the F.I.R. a specific motivels alleged but that motive is withdrawn or abandoned, such could be equated with a case where no motive is alleged. Now coming to another situation where a motive is alleged in the F.I.R. but in the prosecution evidence another motive appears, it would not be a case where motive is shrouded in mystery but would be a case where motive is to be spelt out and proved from- the evidence adduced on behalf of the prosecution. When the plea is advanced that motive is shrouded in mystery, evidence or circumstances should be such that there is a definite indication or inference that murder must have take n place on account of provocation or other reason of the kind that could be considered as mitigating circumstances for reduction of sentence, but merely advancing a plea that the motive is shrouded in mystery by itself is not sufficient to make out a case for lesser sentence. Facts and circumstances of each case are considered to find out whether there are any mitigating circumstances justifying reduction of sentence. We would reiterate that in a case of cold-blooded premeditated murder which results in the loss of one or more innocent lives, the contention for lesser sentence should not be accepted only on the ground that the motive is shrouded in mystery unless there is other evidence or circumstances which definitely indicate that there was provocation or reason for the murder which could be considered as a mitigating circumstance.

8. In this case, however, we find that a motive had been alleged in the F.I.R. that appellant's children were with the deceased (his mother-in-law) whom the deceased refused to return to him and which led to the murder of the deceased at the hand of the appellant. This motive was confirmed and reiterated by complainant Farzand Ali (son of the deceased) in his examination-in-chief. However, in his cross-examination, he turned around and surprisingly stated that it was incorrect to suggest that the family did not want to hand over the children to the appellant. This ex facie, is an obliging statement in favour of the appellant and similar is the case of P.W.1, Zafar Iqbal, a neighbour. In any event, the reason for the murder of Mst. Naziran Bibi was relatable to the strained relations between the appellant and Mst. Rani daughter of deceased Mst. Naziran Bibi and the fact that the children were with the deceased. Therefore, the plea on behalf of the appellant that the motive specified in the F.I.R. was withdrawn or abandoned cannot be accepted.

9. However, in our view, in the present case motive does not play any effective role on the question of sentence as it has been established beyond reasonable doubt from the evidence that the appellant had committed a premeditated cold-blooded murder in a very brutal manner. Twelve incised injuries were caused by the appellant to deceased Mst. Naziran Bibi, his mother-?in-law, an old lady of about 60/65 years. Details of these incised injuries inflicted by the appellant with a 'Churri' or given in the evidence of P.W.4 Dr. Anwar Ali, who had conducted the post-mortem. The details given by P.W.4 are as follows:

"(1) An incised wound 3 c.m.. x 0.55 c.m. deep going on outer part of back or right shoulder. (2) An incised wound 2 c.m. x 1/3 skin deep on the back of right shoulder. (3) An incised wound 3 c.m. x 1/2 c.m. deep going on the back and middle of right chest. (4) An incised wound 3.5 x 1 c.m. deep going on the back and lower part of left chest. (5) An incised wound 3 c.m. x 1/2. c.m. deep going on the outer part of right lower chest. (6) An incised wound 4 c.m. x 1/2 P.m. deep going on the outer and middle part of right chest. (7) An incised wound 2.5 c.m. x 0.5 c.m. deep going c.m. below injury No.6. (8) Incised wound 2.5 c.m. x 1/2 c.m. deep going 1.5 c.m. below and anterior to injury No.7. (9) An incised wound 3 c.m. x 1 c.m. deep going on front and lower part of right chest on 10th rib. (10) Incised wound 3.5. c.m. x 1/2 c.m. deep going on upper abdomen in midline. (11) Incised wound 2 c.m. x 1 c.m. deep going on outer and upper part of left chest. (12) Incised wound 4 c.m. x 0.75 on outer and lower part of right thigh muscle deep. In such a cold-blooded, premeditated and brutal murder, where the case has been established beyond reasonable doubt by the evidence on record, no argument can be built up for reduction of sentence on the ground that the motive was "shrouded in mystery". We may also refer to the following observation of this Court in the recent judgment, dated 11-3-1999 (authored by Chief Justice Mr. Justice Ajmal Mian) in Criminal Appeal No. 174 of 1995 Noor Muhammad v. The State:-- "The brutal and gruesome manner in which the murder of the abov6 two innocent young girls were committed do not warrant 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 sentences. 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. Sentences awarded should be such which should act as a deterrent to the commission of offences."

10. As a result, we find no mitigating circumstance to commute the death sentence, a legal and appropriate sentence awarded by the trial Court and confirmed by the High Court. Criminal Appeal No. 10 of 1996 is accordingly dismissed. N.H.Q./A-177/`S???????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed