2001 SCMR 1605 (PLP)

Ch. Muhammad Akram, Advocate Supreme Court for Appellant (in Cr. A. No. 359 of 1999). Dil Muhammad Tarar, Advocate Supreme Court for the State. Ijaz Hussain Batalvi, Advocate Supreme Court for the Complainant. Date of hearing: 27th April, 2001. HAMID ALI MIRZA, J.‑‑‑These Criminal Appeals with leave of this Court are directed against the judgment of conviction dated 10th of June, 1997 in Criminal Appeal No.572 of 1992, Murder Reference No.311 of 1992 (Muhammad Nawaz and others v. The State) passed by the learned Division Bench of Lahore High Court, Lahore, whereby the said appeal was dismissed maintaining the judgment of conviction dated 24‑6‑1992 in Sessions Case No.8 of 1992 (The State v. Muhammad Nawaz and 2 others) passed by learned Additional Sessions Judge, Gujranwala, whereby appellants were convicted under section 302/34 P.P.C. and sentenced to death and fine of Rs.25,000 each and further they were also convicted under section 307, P.P.C. and sentenced to undergo R.I. for years and fine of Rs.10,000.

2. Leave to appeal was granted by this Court on 30‑12‑199 only to 11 consider whether award of death penalty to the petitioners in the circumstances of the case was justified or not?

3. We have heard the learned counsel for the parties and perused the evidence on record and also gone through the case‑law cited before us.

4. Contentions of the learned counsel for the appellants are that there was no ill‑will or rancour or hostility between the appellants and deceased and further motive as alleged was false and that one of the appellant Muhammad Asif was injured. He submitted that it appeared that youngsters i.e. the appellants and the deceased had developed something suddenly which led to the incident and appellants had also acted on the 'Lalkara' of co accused Muhammad Tufail their elder, who also being less than 18 years of age, the said facts amounted to mitigating circumstances warranting lesser sentence other than death. Learned counsel for the appellants only prayed for lesser sentence. He has placed reliance upon (i) Sultan and another v. The State 2000 SCMR 1818; (ii) Muhammad Nawaz Khan v. Mubarak Ali and others 2000 SCMR 1582; (iii) Abdul Qadir v. Masoodur Rehman and others 2000 SCMR 1492; (iv) Nazar Hussain alias Nazra v. The State 2000 SCMR 1486; (v) Gul Khan and another v. The State 2000 SCMR 400; (vi) Abdul Wahab alias Rehra v. The State 1999 SCMR 1668(b); (vii) Muhammad Yaqocb alias Qooba v. The State 1999 SCMR 1138(c); (viii) Muhammad Mumtaz Khan v. The State 1999 SCMR 837(b)&(c); ix) Nazeer Ahmad v. The State 1999 SCMR 396; (x) Abid Hussain v. The State PLD 1994 SC 461) (b), (xi) Allah Dawaya v. The State (PLD 1993 SC 35; (xii) Ghulam Abbas v. Mazher Abbas and another PLD 1991 SC 1059; (xiii) Sher Hussain v. The State PLD 1959 SC (Pak.) 480).

5. Learned counsel for the complainant submitted that there was no previous enmity between the parties therefore there could not be said to be any desire on the part of complainant to falsely implicate the appellants in murder case. He submitted that P.W.11 Avais being injured witness not related to the complainant party, therefore, it could not be said that his testimony was false or he was an interested witness. He submitted that blood stained daggers were recovered whose blades were 5‑1/2 inches and further that the appellants were more than 18 years even as per their own statement recorded under section 342, Cr.P.C., the F.I.R. was promptly lodged wherein appellants were nominated with specific overt act, causing specific injuries to the deceased being day time occurrence, which ruled out mistaken identity of the appellants. He also submitted that ocular testimony, recovery of the daggers, medical and motive evidence were believed by the trial Court and the High Court consequently the guilt of the appellants was proved beyond reasonable doubt. He also submitted that the appellants committed gruesome murder of two young brothers and further that no mitigating circumstance was brought on record to support the contention raised before this Court. Counsel for the State has adopted the arguments advanced by the counsel for the complainant.

6. We do not find merit and substance in the contentions of the learned counsel for the appellants. It is the settled principle that the question of sentence in each case is be determined on the facts of the case. It is also settled proposition of law that in murder cases death sentence is ordinarily to be imposed unless the trial Court for the reasons to be recorded considers it appropriate to award lesser penalty. There is also no cavil with the proposition that if the Court is satisfied that there are mitigating /extenuating circumstances then it would be justified in imposing lesser penalty of the two sentences awarded by law. In the instant case it is to be examined whether there are mitigating circumstances available in favour of appellants to award lesser penalty than the normal penalty of death. It would not be out of place to state here that before the trial Court no plea that the appellants were less than 18 y tears of age; or that the appellants acted under the command of their elder Muhammad Tufail the acquitted co‑accused; or that incident had developed suddenly was raised or pleaded. The appellants' case was of total denial of the incident and that motive was said to be false one. However, in the High Court pleas of sudden flare‑up and that the appellants being youthful offender were pleaded. The learned trial Court and the learned Division Bench of the High Court on scrutiny of the evidence found no place in the evidence to support contentions of the appellants. Admittedly, the F.I.R. was lodged with promptitude wherein the appellants have been nominated specially mentioning overt act on their part whereby two young brothers were murdered as per evidence on record. The incident occurred because the appellants had peeped through the window into the house of deceased who forbade the former who then had gone away and when the deceased alongwith complainant were in front of Clinic of Dr. Muhammad Arshad in the Main Bazar the appellants attacked the deceased with respective daggers and caused the injuries which resulted into their deaths which injuries on the person of deceased stood corroborated by medical evidence. In the circumstances it could not be said that the incident was sudden or that something had taken place all of a sudden which led to the incident. It would also appear from the evidence that after the first incident, the appellants came armed with daggers and attacked the deceased in the Main‑Bazar, therefore, it was a premeditated murder on the part of the appellants of the two young brothers. So far the motive, same has been stated in the F.I.R. and corroborated by P.W.10 Muhammad Aslam, therefore, it could not be said that the motive was false considering that F.I.R. was lodged without delay wherein said motive was also stated. So far the contention, that the appellants were less than 18 years of age at the time of incident, therefore, lesser sentence be awarded, we have verified the ages of B the appellants from the statements made by them under section

342. Cr.P.C. it would appear that the appellants were more than 18 years at the time of commission of offence and furthermore that no such plea was raised before the trial Court nor any suggestion made in the cross‑examination of the P.Ws. nor any other reliable proof in the said report is brought on record. Besides the counsel for the appellants conceded before us that the instant case would not fall under sections 306 and 308, P.P.C. considering also that the incident occurred long before the said provisions were brought on the statute book. It was also not the appellants' case before the trial Court that they had acted at the instance of their elder in the commission of offence considering also the fact that Muhammad Tufail co‑accused was held to have been falsely implicated in the case. Therefore the plea that the appellants committed the offence at the command of their elder would have also no merit. The learned trial Court in para. 14 of the judgment has also observed:‑‑ "

14. The contention raised by learned counsel for the accused that motive in this case is shrouded in mystery is not tenable in view of the testimony of P.W.10, before this Court and particularly when it was mentioned in the F.I.R. Exh.P.B./1 which was promptly lodged after the occurrence. It is of vital significance to mention here that there is no enmity, ill‑will, grouse, previous quarrel, scuffle, litigation, altercation between the parties. The other contention raised by learned counsel for the accused qua the motive was that only P.W.10 has talked about motive. This contention by learned counsel can be adequately met by saying that other persons who could talk about motive, were the brothers of P.W.10 Muhammad Aslam who have been done to death in the occurrence. The inmates of the house where two accused were peeping are in the facts and circumstances of the case most natural witnesses. P.W.10 also stated that P.W. Shoukat a neighbour from locality was also present at the time when P.W.10 refrained the accused and Shoukat P.W. has not been produced because he has been won over. It was a peak summer season had not gone to their avocations. In my considered opinion the motive in this case is proved. Whether the motive is sufficient or adequate to propel the parties to such a gruesome tragedy is besides the point, as many ghastly murders have been committed over a petty/trivial and even flimsy motive. It has been held by superior Courts that adequacy or otherwise of motive is irrelevant. The prosecution has proved the motive in the case in hand. " The learned Division Bench of the High Court in the impugned judgment in paras. 11‑12 has observed as under: "

11. Whereupon the judgment under appeal was pronounced, during the course of hearing whereof, learned counsel for the appellants confronted with the evidence adduced comprising that of the complainant Muhammad Aslam P.W.10 promptly lodging the F.I.R. at Civil Hospital, Wazirabad with Bashir Ahmed, S.I. P.W.17 having accompanied the deceased Muhammad Ashfaq in injured condition, who soon thereafter prepared his inquest report enshrining presence of Muhammad Hanif P.W.12 duly endorsed by the doctor unquestionably affirming his presence at the venue as well as that of Muhammad Hanif P.W.12 and Muhammad Avais injured P.W.11 with unimpeached confidence7inspiring testimony despite the searching cross‑examination corroboration whereto stands furnished by the medical evidence as to the locale, time and nature of injuries as well as the weaponry recovered with like promptitude vouched to have been stained with human blood proving the prosecution case beyond the realm of doubt opting not to assail the conviction patently being unexceptionable pleaded for lesser penalty urging that the spelt out motive has remained an established, conversely the incident is a sudden flare up without premeditation and the appellants being raw youth had no previous enmity with the deceased.

12. With which we are not persuaded because the motive set out by the complainant Muhammad Aslant P.W,10 brother of the deceased, admittedly having no enmity towards the appellants preceding the occurrence, has remained untampered with. Similarly the acclaimed plea of sudden flare up is ill‑founded because the assault was launched after the motive incident having occasioned at a place other than where the same had precipitated with time (10 minutes) intervening."

7. The facts of case‑law cited by the learned counsel for the appellants are quite different and distinguishable to the facts of instant case considering the question of sentence in each case is to be determined on the facts of the case in hand. In the cases cited the sentence was reduced when there was evidence on record that the accused had acted under the influence of his elders; or he was less than 18 years of age; or that motive was shrouded in mystery; or there was sudden flare up; or that family honour was involved but in the instant case there was no evidence or material on record to link such facts of cited cases to the instant case considering also the fact that the trial Court and the learned Division Bench have concurred on the finding of guilt of accused holding that no mitigating circumstances existed warranting lesser punishment. But in case of Abdul Wahab 1999 SCMR 1668 which has been relied upon by the learned counsel for the appellants the appeal of said convict was dismissed maintaining his conviction and death sentence passed by the Sessions Judge. This Court after considering the cases of (i) Vali Muhammad v. Bajoo 1978 SCMR 257; (ii) Sher Ali v. The State 1980 SCMR 291; (iii) Ghulam Nazir v. The State 1981 SCMR 805; (iv) Sher Daraz Khan v. The State 1983 SCMR 266; (v) Arif v. The State 1984 SCMR 124; (vi) Mati‑ur‑Rehman v. The State; (vii) Ahmad Khan v. The State 1985 SCMR 975; (viii) Faqir Masih v. Mubarik Masih 1987 SCMR 697; (ix) Nabi Bakhsh v. The State 1988 SCMR 213; (x) Abbas Hussain v. The State 1992 SCMR 320; (xi) Roheeda v. Khan Bahadur 1992 SCMR 1036; (xii), Muhammad Ishaque Khan v. The State PLD 1994 SC 259; (xiii) Zulfiqar v. The State 1995 SCMR 1668; (xiv) Intizar Hussain v. Muhammad Sarwar 1996 SCMR 872; (xv) Muhammad Mushtaq v. The State 1973 SCMR 219: (xvi) Ali Hussain v. Mukhtar 1983 SCMR 806; (xvii) Nawaz Khan v. Ghulam Shabbir 1995 SCMR 1007; (xviii) Talib Hussain v. The State 1995 SCMR 1776 and many other rulings and observed at page 1685(B):‑‑ '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 ca6e the motive is 'shrouded in mystery' and that it cannot be said as to what was the precise and immediate reasons for the murder. But in Talib Hussain v. The 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 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 o 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. At page 1686(c) it was observed:‑‑ When the plea is advanced that motive is shrouded in mystery, evidence of circumstances should be such that there is a definite indication or inference that murder must have taken 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. In the above‑cited case this Court has held that motive 'shrouded in mystery' is not a legal principle which could be applied in all murder cases for reduction of capital sentence where no motive is alleged/proved by the prosecution. But in the instant case prosecution has proved that motive as observed by the Trial Court and affirmed by learned Division Bench of the High Court. We find no ground to interfere with the said finding in view of evidence on record. Even if motive is weak, but the prosecution has established the guilt of the accused beyond reasonable doubt, accused would be awarded normal sentence of death. In the instant case there are no mitigating circumstances to justify reduction in sentence. The above‑cited case instead of supporting the case of appellants, supports the prosecution case.

8. As per evidence on record and reasonings given above, these appeals have no merit and substance. The learned trial Court and the learned Division Bench have given cogent and valid reasons in support of their findings. No case for lesser sentence is made out. In the circumstances while maintaining the conviction and sentence passed by the learned trial Court and maintained by the learned Division Bench, the appeals are dismissed. M.B.A./M‑261/S Appeals dismissed.