1973 PLP 219 (SCMR)

Nemo for the State. Date of hearing: 18th April 1973. MUHAMMAD GUL, J.‑The petitioner, Mohammad Mushtaq, aged about 18, was tried along with one Munsif by the Sessions Judge, Hazara, on charges under sections 302/34 and 307/34 of the Pakistan Penal Code for the murder of Mohammad Khalid, who was also aged about 18, and murderous assault on Mohammad Akram P. W., father of the deceased. The learned Sessions .fudge found the petitioner guilty under section 302 of the Pakistan Penal Code for the murder of Mohammad Khalid and sentenced him to death and acquitted him of the other charge. Munsif co‑accused was acquitted of both the charges, On appeal and an reference under section 374, Criminal Procedure Code the death sentence of the petitioner was confirmed by the High Court. In this petition for special leave by the petitioner, his conviction and capital sentence have both been questioned. Mr. Syed Masoom Shah, Advocate, appearing for the petitioner, did not, and if we may say so rightly, seriously question the petitioner's conviction for the murder of Mohammad Khalid. The parties are related inter se and there is no known previous enmity. This eliminates the possibility of false implication. The incident took place at about 10 a.m. at the village well where the deceased, his father Mohammad Akram P. W. and Fida Mohammad were engaged in drawing water from the well for domestic use and carrying it in pitchers to their residential house. The conviction rests on the eye‑witness account given by Mohammad Akram and Akhtar Nawaz, the dying declaration recorded by Dr. Khilji, and which incidentally is attested by the petitioner's own maternal uncle Dadoo who appeared as D. W. Then there is the confirmatory evidence of recovery of incriminating articles from the spot. In these circumstances, learned counsel only questioned the propriety of the capital sentence. 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 the incident and finally the stray remark in the evidence of Mohammad 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 any 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 a 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 circumstance viz. having acted under a sudden impulse or under the influence of his elders. The stray remark in the evidence of Mohammad Akram about the alleged illicit affair 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 inter ference by this Court in the matter of sentence. We accordingly dismiss the petition. Leave refused.