' This is an appeal against the judgment of the High Court dated 3rd April, 1974, whereby the appeal of the accused appellant was dismissed and his death sentence, passed by the Sessions Judge, Mirpur, was confirmed.
2. The brief facts giving rise to the present appeal are that a F. I. R. Was lodged at Police Station, Kotli City, on 11-2-1973 at 9.00 p m., by one Gulzar alleging that at about 8-45 p.m., on the same day, when he was on his way back to his house from bazar and was passing by the house of Faiz All Shah, he came across Kabir Hussain Shah and Karamatullab, who were going, lifting a box. One Kazim Hussain Shah was also accompanying them. All the three seemed to be in a confused state of mind. Meanwhile, he also saw a Jeep No, 4569 which stopped near Jamia Mosque situated in Kotli Bazar. Faiz Ali Shah, Patwari, got down from the said jeep and went towards his house; then he again came back from his house and got into the Jeep. The Jeep was being driven by one Shabir Shah, driver. The complainant suspected some foul play and went into the house of Faiz Ali Shah and in the light of a torch he found some clothes lying scattered in the room, some of which were blood-stained. He also found blood drops on the floor and one of the house's walls.
3. On the aforesaid report a case was registered under section 302/34, A. P. C. Subsequently, as a result of police investigation, it was revealed that Faiz Ali Shah, a Patwari, owed a sum of Rs, 3,000 to Sher Khan (deceased) who has given the said sum to him for safe custody. When Sher Khan made demand for the payment of the said amount, Faiz All Shah did not oblige him and instead hatched a conspiracy with Kabir Hussain Shah, accused-appellant, and Karamatullah, the approver, to murder Sher Khan. They also decided to distribute the amount amongst themselves after putting an end to the life of Sher Khan. The conspiracy was hatched at Rawalpindi on 9-2-1973, where Kabir Hussain Shah, accused-appellant, and Karamatullah were serving. During the night falling between 9-2-1973 and 10-2-1973, Faiz Ali Shah, the absconding accused, alongwith Kabir Hussain Shah, accused-appellant, and Karamatullah, approver, come to Kotli from Rawalpindi by a bus. After stationing Kabir Hussain Shah and Karamatullah at his house, Faiz All Shah went away to bring the said amount from the bank. After some time he came to his house with a money bag and put the same at his house telling the accused-appellant and the approves that they should wait for him till he came back with Sher Khan, who would' meet him in his (Faiz Ali Shah's) office. Subsequently, Faiz Ali Shah came to his house alongwith Sher Khan and served him with fruits in a room adjoining to the room where the appellant and the approver were waiting. Sher Khan (deceased) was taking fruit after cutting the same with a small knife when Kabir Hussain Shah, accused-appellant, and Karamatullah went into the room where Sher Khan was sitting and made an assault on him. Kabir Hussain Shah, accused-appellant, gave a blow on the head of Sher Khan with an iron bar while Karamatullah, approver, caught hold of him so as to overpower him. One of the iron bar's blow accidentally landed on approver, Karamatullah, resulting in loosening his grip. Thus, Sher Khan (deceased) managed to' escape from the clutches of the approver and ran out of the room for safety. Faiz All Shah, who was standing outside in the compound, caught hold of Sher Khan (deceased) while the appellant and the approver, Karamatullah, who were chasing the deceased, also caught hold of him. Then, all the three aforesaid persons dragged Sher Khan (deceased) back into one of the rooms of the house, where he was overpowered by the aforesaid collaborators and was given injuries with stones and bricks which caused the deceased to fall on the ground unconscious. Then, the appellant cut the throat of the victim of crime with small knife with which the deceased had been cutting the fruits before the assault. Afterwards, the. Approver went to the house of a relative at Nakyal. He returned on the following date, i. e. 11-2-1973, when the steps were taken to take away the dead body from the place of occurrence for concealing the same. A hatchet and its handle was purchased from the bazar for the purpose of cutting the body of the deceased to put it into a box. Subsequently, the body of Sher Khan (deceased) was cut into pieces and was stuffed into a box. Jeep No, 4569, which was hired on fare by Faiz All Shah from Hakim Shah, P. W., and the box containing the pieces of the body of the deceased was loaded on the Jeep, which was driven by Shabir Shah. Faiz Ali Shah, Karamatullah, Kabir Hussain Shah, appellant, and Kazim Hussain Shah, a student, also got into the said Jeep. The dead body was taken and thrown away on the other side of the river after crossing the bridge at Holar, a place at a considerable distance from the place of occurrence. The pieces of the body were thrown in a Jungle known as Panya, which is situated in Rawalpindi District of Pakistan. After the arrest of the appellant, the pieces of the dead body, except the head, were recovered on 13-2-1973, at the pointing out of the appellant from the Panya Jungle; the head of the deceased was subsequently found in the Jungle and was seized on 23.2-1973.
4. Kazim Hussain Shah, Shabir Shah and Ms:. Nishat Begum, the wife of Faiz Ali Shah, were indicted in the challan under section 169, Cr. P. C. Faiz Ali Shah absconded and' proceedings under section 512, Cr. P. C. Were taken against him. After the trial, the learned Sessions Judge opined that sufficient evidence was not available for the trial of aforesaid three accused for murder. However, the learned Sessions Judge observed that police should put up a challan against the said persons under section 201, A, P. C. A warrant of arrest was issued against Faiz Ali Shah, the absconding accused. The appellant was convicted and sentenced by the Sessions Judge under section 302/34, A. P. C. For the murder of Sher Khan (deceased) and was awarded death penalty.
5. I have heard the arguments and gone through the record. It has been vehemently argued by the learned counsel for the appellant that retracted judicial confession of the appellant is not voluntary and thus it is inadmissible in evidence against the appellant. The learned counsel has referred to the statement of Muhammad Yunus, a recovery witness, who has stated that when he reached the police station on 13-2-1973 for accompanying police to witness the recovery of the dead body, he saw that Kabir Hussain Shah, accused-appellant, and Kazim Hussain Shah were in the police custody and were being beaten by the police. It may be observed here that, according to the statement of Muhammad Yunus, he went to police station on 13-2-1973 when the dead body was recovered from the Panya Jungle; judicial confession was made by the appellant on 19-2-1973.- It has nowhere been stated by Muhammad Yunus, P. W. That police gave any beating to the accused to extract judicial confession from him. Even if it is assumed for the the sake of argument that police maltreated the appellant before the recovery of the dead body, it cannot be said that the judicial confession made by the appellant six. Days afterwards was extracted from the accused by applying third degree methods. The appellant was produced before the Magistrate for making judicial confession on 18-2-1973. He was sent to judicial lock-up and was ordered to be produced next day. His judicial confession was recorded on 19-2-1973. Before recording the confessional statement, the learned Magistrate again gave the accused time for reflection and put various questions to him so as to ascertain whether the accused-appellant was making confession voluntarily. The learned Magistrate also warned the accused-appellant that he was not bound to confess the guilt and that his confessional statement might be read in evidence against him. The appellant was also told that if he did not make confession, he would not be handed over to police.
The learned counsel for the appellant objected to the forms of some of the questions put by the Magistrate- before confession: However, it may be observed that the phraseology of the questions is not material. What is important is as to whether the accused-appellant sufficiently understood the consequences of his confessional statement and the questions put to the accused-appellant sufficiently revealed that the accused was conscious of the fact that he was not bound to make the confession of his guilt and if he did so such statement could be read against him at the trial. In my view, in the instant case, there is no room for the argument that the phraseology used in some of the questions, asked by the magistrate, was improper and it has caused prejudice to the accused. After giving my earnest consideration to the matter and in view of the attending circumstances, I have no hesitation in holding that confessional statement of the accused- appellant was voluntary and was not extracted by applying third degree meteors or by any inducement. Therefore, the contention of the learned counsel for the appellant that retracted judicial confession of the accused was involuntary and is inadmissible in evidence has no farce and is hereby repelled.
6. The learned counsel for the appellant has assailed the credibility of the approver, maramatullah, on the ground that there are contradictions in his statement made in the Court and the two statements recorded under section 164, Cr. P. C. When the learned counsel was confronted with the situation that the contradictions, if any, have not been confronted to the approver as visualized under section 145 of the Evidence Act and thus the accused-appellant cannot take any benefit from any such contradictions, the learned counsel maintained that despite any such non- confrontation of the previous statements the matter may he considered by the Court for judging the credibility of the approver. It may be observed that there are no material contradictions in the aforesaid statements of the approver, which can be regarded to affect the material particulars of the prosecution story. However, assuming that there are any such contradictions, the appellant cannot derive any benefit therefrom because the approver has not been confronted with his previous inconsistent statements, if any. The learned counsel has also pointed out some omissions in the statements of the approver recorder under section 164, Cr. P. C. The statement of the approver recorded under section 164, Cr. P. C. Is not a substantive piece of evidence against the accused. The said statement can be used only for impeaching the credibility of the approver by confronting him with his inconsistent parts of the statement or it can be used against the approver, if he fails to fulfil the conditions on which he was tendered pardon.
7. The learned counsel for the appellant has urged that, according to the confessional statement of the appellant, Faiz Ali Shah had also gone to Rawalpindi on 2-2-1973 and had talks with Karamatullah, approver, and the accused-appellant about the killing of Sher Khan (deceased) and to distribute the money amongst themselves, whereas the approver did not state about any such negotiation on 2-2.1973; rather he has stated that conspiracy about the murder took place on 9-2- 1973. Both, the approver and the accused-appellant, in their confessional statements have stated that final resolve to put an end the life of Sher Khan was made on 9-2-1973. It has not been specifically asked from the approver in the examination-in-chief or in the cross-examination as to whether Faiz Ali Shah also had any negotiation with them before 9-2-1973 or on 2-2-1973. Under these circumstances non-mentioning about negotiations by approver regarding the conspiracy between Faiz Ali shah and his collaborators on 2-2-1973 is not a contradiction but at the most is an omission which, in my view, is not fatal to the prosecution case.
8. The learned counsel has further urged that, according to the approver, Faiz Ali Shah took him to his office at Kotli on 10-2-1973 at about noon to show him the deceased, Sher Khan, with a view to facilitate him the subsequent identification Qt. The deceased whereas, according to the retracted confession of the appellant, both he and Kabir Hussain Shah were taken by Faiz Ali Shah to his office for the aforesaid purpose. I am of the view that this is a contradiction of a minor nature and it cannot be made basis for holding that statement of the approver is false in totality or that the retracted judicial confession does not corroborate the testimony of the approver in the material particulars.
9. The learned counsel has further argued that Mst. Sabra and Mst. Begum Jan, P. Ws., who claimed to have witnessed the part of the occurrence, have stated that the person who ran out of the house bf Faiz Ali Shah, accused, was making noise and the retracted judicial confession of the appellant also contained the similar assertion; whereas Karamarullah, approver, has stated that Sher Khan (deceased) made no noise when he managed to release himself from the clutches of the approver. Thus, the learned counsel argued that the said contradiction renders the testimony of the approver doubtful and untrustworthy. The circumstances in which the deceased ran for safety after escaping from the clutches of the approver are such that in all probability the deceased might have made some noise or raised some hue and cry, but we should not lose sight of the fact that the approver being one of the assailants might not have remained in 'a composed state of mind so as to hear and remember the noise or hue and cry which possibly might have been made by the deceased at the relevant time; especially so, due to the gravity of the situation. The approver being engaged in perpetration of a heinous crime at the relevant time must have been in an excited and confused state of mind and thus might not have noticed or heard the noise made by the deceased. Even otherwise, the minor discrepancy, like the one G indicated above, is not enough to destroy the accumulative effect of the evidence of the approver.
10., The learned counsel for the appellant has also referred to the confessional statement of the appellant and the statement of the approver and has pointed out that some of the details regarding infliction of the injuries on the person of the deceased given by the accused-appellant and the approver do not tally. I have carefully perused the confessional statement of the appellant as well as that of approver and I found no material contradictions with regard to the material details of the incident. However; the minor difference in the details with regard to the infliction of the injuries on the person of deceased is of no consequence because when three persons were engaged to fulfil their evil designs their emotional state of mind was not such that they could have noticed a kaleidoscopic view of the incident and narrated the same afterwards.
11. Next; the learned counsel has argued that the recovery of the pieces of the dead body at the instance of the appellant is doubtful. He has mainly assailed the recoveries on the ground that according to the statement of Muhammad Yunus, the witness of recovery memo. He was told by police the 'previous night' that he would accompany the police on the following day for the purpose of recovering the remains of the dead body, and in pursuance of the said direction of the police he went to the police station on 13-2-1973 whereas, according to the Investigating Officer, appellant was arrested on 13-2-1973 and shortly after his arrest, as a result of interrogations of the accused, police proceeded to recover the remains of the dead body. The learned counsel for the appellant has argued as to how the police came to know before the arrest of the accused that the recovery of the dead body would be possible on the following day and thus told Muhammad Younus, p. W. To come to police station for accompanying the police. It is possible that Kabir Hussain Shah, accused-appellant, might have been arrested earlier than the time of arrest given by the Investigating Officer. It is common with the police, though it is not a healthy practice, that the accused persons are taken in custody but their arrest is not shown in the relevant record. Thus, the mere fact that Muhammad Yunus, P. W., was told by the police some time before 13-2-1973 to accompany Police party would not render the testimony of Muhammad Yunus, P. W., unreliable. I have carefully gone through the statements of Muhammad Yunus and Karam Dad, the two recovery witnesses. The pieces of dead body of Sher Khan (deceased) were recovered at the instance of the accused-appellant from Panya Jungle, as stated earlier, and I have no hesitation in saying that these two witnesses are trustworthy and they have told nothing but all truth. The learned counsel for the appellant has frankly conceded that in the circumstances of the case, the recovery of the remains of dead body cannot be assailed on the ground that recovery witnesses were not the residents of the locality from where the recovery was made. As has already been pointed out, the remains of the/ dead body were thrown at a place which is at a considerable distance from the place of occurrence, in a Jungle, situated out of the territory of Azad Kashmir.
Therefore, it was not possible for the Investigating Officer to find the witnesses of the locality to witness the recovery proceedings relating to the pieces of the dead body.
12. The learned counsel for the appellant has also argued that the statement of Muhammad Yunus, P. W., gives an impression that head of Sher Khan (deceased) was also recovered at the instance of the accused-appellant, which is not the case of the prosecution. A perusal of the deposition of .The abovesaid witness, made during the cross-examination, would reveal that it has been clearly stated by Muhammad Yunus, P. W., that the head of Sher Khan (deceased) was subsequently found by shepherds in Jungle and was seized by the police at the police station. Thus, it cannot be inferred from a casual assertion of Muhammad Yunu's, P. W., that, according to him, the head of Sher Khan (deceased) was also recovered at the instance of the accused-appellant; especially so when the witness has clearly stated in the cross-examination to the contrary. It may be observed here that the recovery of the pieces of the dead body from a Jungle, which is at a considerable distance from the place of occurrence, could not be possible without the information given by the accused-appellant to the police. In Abdul &mad v. The State (1) the remains of the dead body were recovered at the instance of the accused from a lonely place which was at a distance of about four miles from the place of occurrence. It was held by the learned Judges that in absence of other reasons for police to go to such a place, it could be safely assumed that the remains of the dead body were recovered at the instance of the accused person. In the instant case the distance of Panya Jungle, from where the pieces of the dead body were recovered, is much more larger from the place of occurrence. This further strengthens my view that the pieces of the dead body of the deceased were recovered at the instance of the accused, otherwise it would not have been possible for police to go and I find the same at such a distant place.
13. The learned counsel for the appellant has also assailed the recovery of the dead body on the ground that at the most the recovery of the pieces of the dead body were made on the joint statements of Kazim Hussain Shah, accused, and the accused-appellant and as such it is not a valid piece of`, evidence against the appellant. He has built his argument on the premise {{FOOT NOTE}}
(1) PLD 1964 SC 167 {{FOOT NOTE}} that, according to the prosecution case, Kazim Hussain Shah also accompanied the police when the police party proceeded to Panya Jungle for making the recovery. The mere fact tbat Kazim Hussain Shah was also with the police at the relevant time would not justify the inference that dead body was recovered at the 'pointing out' of Kabir Hussain Shah, accused-appellant, and Kazim Hussain Shah 'jointly'. It has been clearly stated by Muhammad Yunus and Karam Dad, P. Ws., and the Investigating Officer that after getting down from the Jeep, it was Kabir Hussain Shah, accused- appellant, who led the police to the place where the pieces of the dead body were found and Kazim Hussain Shah, accused, remained at the roadside and did not accompany the police to the spot in Jungle from where the parts of the dead body were recovered. Thus, I find no fault with the recovery and have no hesitation in holding that recovery of the pieces of the dead body of deceased, Sher Khan, were found as a result of 'pointing out' of the-accused-appellant alone.
14. The learned counsel for the appellant has also argued that it cannot be said that the parts of the dead body, which were recovered, were that of Sher Khan (deceased). A perusal of statement of Muhammad Yunus, P. W., would reveal that he was fully acquainted with the deceased and he had identified the parts of the body. Moreover, the subsequent seizure of the head of Sher Khan (deceased) further augments the statement of Muhammad Yunus, P. W., that the parts of the body recovered at the instance of the accused-appellant were that of Sher Khan (deceased) and none else.
15. The learned counsel has also vehemently assailed the statements of Mst. Sabra and Mst. Begum Jan, the two prosecution witnesses, who have stated that they saw a stranger running out of room of the house of Faiz Alt Shah and also witnessed that the said stranger was caught hold of by Faiz Ali Shah and two strangers and was dragged back into the room of the house of Faiz Ali Shah. Mst.
Begum Jan has stated that she told about the incident to one Chan Gujar. Both the ladies have also stated that after the incident they made queries from Mst. Nisbat Begum, the wife of Faiz Ali Shah accused, who told them that there had been some dispute between a cleaner and her husband, Faiz All Shah, and a fight took place between them. It has been stated by Mst. Begum Jan, P. W., that on the following day of her witnessing the occurrence, Nusrat Jan, the minor daughter of Faiz Ali Shah, came to take eggs and told her that his father and two others had killed a 'Pathan' in the house. The testimony of the aforesaid two witnesses is natural. They were the immediate neighbours of Faiz Ali Shah in whose house the murder was committed. Thus, they had a chance to witness the part of the occurrence stated by them. They have stated that they did not recognise the deceased or the other two strangers, i. e., the accused-appellant and Karamatullah, the approver. If they were tutored witnesses, they would have also stated that they had identified the accused-appellant, the approver and the deceased. They have no enmity whatsoever with the accused-Appellant. The statements of these two witnesses and blood-stained earth and ;other articles recovered from the house of Faiz All Shah, vide seizure memo. Exh. P. C., amply prove that the cruel act of murder was committed in the house of Faiz Ali Shah, at least by three persons.
16. The learned counsel for the appellant has also argued that Mst. Sabra, P. W., has stated that she did not make any statement before the police. She, being an illiterate lady, might have stated so out of wea memory or due to some misunderstanding. In any case, in view of the statement in the trial Court, it cannot be said that her testimony is unreliabl because she has stated that she did not make any statement before the Police.
17. The next point urged by the learned counsel for the appellant is that the testimony of the approver is contradicted by the site plan, Exh. P. F., because, according to the learned counsel, the site plan shows that the murder was committed in one room of the house whereas the approver has stated that when the deceased, Sher Khan, was dragged back he was taken to the room where the appellant and approver had been sitting before the assault. A perusal of the record reveals that, according to the site plan, it was prepared at the 'pointing out' of the 'witnesses'. The names of the witnesses, on whos information the said site plan was prepared, have not been mentioned in the site plan, Exh. P. F., or the notes attached with it. The site plan was prepared on 17-3.1973, whereas the approver was tendered pardon on 24-3-1973, after Ai the site plan bad been prepared. Thus, Karamatullah, approver, was not a witness who pointed out the place of occurrence at the time when the sit plan was prepared. Therefore, it can be safely said that the site plan was no prepared as a result of the information furnished to the police by the approver. Under these circumstances the argument that the testimony of the approve is belied by the contents of the site plan is not tenable. Even otherwise. Th site plan is prepared merely to acquaint the Court with the site of the occurrence and when it is not shown that it is prepared in consequence of information furnished to police by a particular witness, the testimony of such witness cannot be assailed on the ground that its evidence is contradictory to the details mentioned in the site plan. .18. The learned counsel. Has also argued that the money bag which, according to prosecution case, was placed in the room by Faiz Ali Shah, after drawing the amount from the Bank; the Jeep, which was used for taking away the dead body; and the Bank record showing the withdrawal of the alleged amount by Faiz Ali shah for the distribution amongst his collaborators have not been recovered and as such the prosecution story becomes doubtful. It may be pointed out that the Investigating Officer in this case has not been vigilant to conduct the investigation properly, but it is well-settled principle' of law that mere in regalities in the investigation or inaction of the police would not demolish the prosecution case, if otherwise the offence against an accused stands proved in the light of the legal evidence on the record. In the instant case the non-recovery of the aforesaid items, in my view, does not detract from the truth of the prosecution case which otherwise stands established by tangible evidence on the record.
19.The learned counsel for the appellant has also argued that the examination of the accused persons under section 342, Cr. P. C. Is defective, because in answer to the first question as to whether the accused had heard and understood the evidence, no answer of' the accused has been recorded and that the statement only bears stamp of the Court and is not signed by the Presiding Officer. I have given my deep thought to the argument and I am r of the view that non- mentioning of the answer to the first question put to the accused-appellant has not prejudiced the appellant because the question is of 1 a formal nature and even if such question had not been put to the accused, it I would not have made any difference. The absence of signature of the Presiding Officer beneath the statement under section 342, Cr. P. C. Is an irregularity which is curable under section 537, Cr. P. C. And does not vitiate the trial: 20.The case against the appellant stands proved beyond reasonablept doubt in the light of the statement of approver, Karamatullah, which is fully corroborated by the retracted judicial confession of the accused-appellant and the recovery of the dead body of deceased, Sher Khan, at the pointing out of the accused appellant. The prosecution story is also corroborated by statements of Mst. Sabra, Mst. Begum Jan, Hakum Shah, the recovery of the blood-stained clothes of the approver from the house of Faiz Ali Shah, the recovery of the various items from the house of Faiz Ali Shah including the blood-stained earth etc, vide recovery memo. Exh. PF. Therefore, I have no hesitation in holding that the prosecution has proved the case against the accused-appellant beyond reasonable doubt.
21. Lastly, it has been argued by the learned counsel for the appellant that the appellant was convicted and sentenced by the Sessions Judge on 16-8-1973 and his appeal in the High Court was dismissed on 3-4-1974. He has maintained that since then the appeal has been pending in this Court for one reason or the other and 'thus it is a mitigating circumstance which calls for a lesser penalty. The learned counsel has referred to some of the authorities, but a perusal of these authorities revealed that these pertain to minor offences wherein the sentence undergone was held sufficient on the ground that the convicts in those cases had faced protracted trial or their appeals were disposed of after some delay. As these authorities do not pertain to murder cases, I need not dilate upon those. The only' case cited, by the learned counsel for the appellant which can be said to have some relevancy to the case in hand is Niaz Ahmed vs. Naeem Akhter and others (1). However, the facts false said case are also distinguishable from the case in band. In that case death sentence was not imposed by the High Court on the accused for various reasons. One of those reasons was that the murder was not premeditated and the accused in that case was excited at the time of the incident. Subsequently, the accused in that case was also released from jail in pursuance of amnesty granted by the Home Department. It was in the aforesaid circumstances that the Supreme Court held the view that delay in disposal of the appeal for five years coupled with the aforesaid circumstances was sufficient ground for not awarding the death penalty to the accused. However, in the instant case, as has been indicated, the murder is pre- planned and there are no extenuating circumstances, which existed in the case cited by the learned counsel for the appellant.
22. It may be observed that a protracted trial or delay in disposal of the appeal does not, per se, justify the commutation of death sentence, especially where the Court is not at fault. There is a ring of authorities in support of the view that in a case of murder, where no other mitigating circumstances exist, delay in disposal of appeal or protracted trial would not constitute a valid ground for awarding a lesser penalty than death. In the instant case, a cold-blooded murder was committed for satisfying the lust for money and that too by grabing a paltry sum. The muscler was not only pre-planned but also brutal and I see no reason to commute the death sentence of the accused-S appellant. The fact that mere delay in disposal of the appeal is no ground for awarding a lesser penalty in a murd.:r case is fortified by the following' cases: Ayub Khan v. The State (2), Mehrban v. The State (3), Muhammad Shafi v. The State (4), Shah Muhammad v. The State (5), Muhammad Hussain v. The State (6) and Sabir Hussain v. The State Criminal Appeal No, 16/MR of {{FOOT NOTE}}
(1) 1977 SCM R 159 (2) 1974 SCM R 324
(3) PLD 1978 SC (AJK) 96 (4) 1971 SCMR 231
(5) PLD 1973 SC 332 (6) 1973 SCM R 344 {{FOOT NOTE}} 1981, decided by the Azad Jammu and Kashmir Supreme Court on 30-1-1983 (unreported).
23. The reason for mitigation should be genuine and be such which can be said to have provoked the accused to commit the crime or there must exist some mitigating circumstances. Mere conjectures, and surmises, derived by fallacious logic, cannot be regarded as extenuating circumstances for awarding a lesser sentence than the normal penalty of death, in a murder case.
24. Before parting with the case, it may be observed that the appellant has submitted an application alleging that his death sentence has already been commuted by the competent authorities. He has also filed a photostat copy of some notes alongwith the application. The aforesaid photostat copy does not show that the death sentence of the appellant has been commuted. However, if the death sentence of the appellant has been commuted, as has been alleged by him, he may have a resort to appropriate authorities for the redress of his grievance, if any.
' The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed.