' NASIR ASLAM ZAHID, J.---The above appeal by leave of this Court, arises from the judgment, dated 6-4-1995 of a Division Bench of the Sindh High Court whereby the conviction of the 4 appellants, Fazal Muhammad, Khamiso, Lakhano and Noor Hassan by the trial Court for the murder of deceased Fazil Rahu was confirmed as well as death sentence awarded to appellant Fazal Muhammad and life imprisonment to the other three appellants. Leave was granted by order, dated 25-7-1995, to appellants 2, 3 and 4 but as regards appellant No,1, Fazal Muhammad son of Khamiso Chang leave was granted only as regards sentence of death awarded to him and this is apparent from para. 6 of the Leave Granting Order, which reads as under:-- "Leave to appeal is granted to examine, firstly, whether the prosecution evidence qua the involvement of petitioners Nos.2 to 4 in the crime was appraised by the High Court in accordance with the principles laid down by this Court for administration of criminal justice; and, secondly, whether extreme penalty of death awarded to Fazal Muhammad petitioner No,1, was rightly maintained in the circumstances of this case."
2. As the occurrence had taken place on 17-1-1987, when this matter was taken up for hearing on 10-3-1999, learned counsel for the parties as well as Raja Abdul Ghafoor, learned Advocate Supreme Court appearing for the Advocate-General, Sindh, were asked to get information from the jail authorities where appellants 2, 3 and 4 were confined and about the sentence a1ready undergone by them. Pursuant to enquiries made by the Additional Advocate-General, Sindh, a letter, dated 10-3-1999 of the Superintendent, Central Prison, Hyderabad, was received by the Additional Advocate-General, Sindh, Karachi, with a copy to the Registrar of this Court (available on record), according to which, appellant Lakhano son of Shahmir Chang died in Liaqat Medical College Hospital, Hyderabad, on 3-7-1995 while still in custody. The appeal of Lakhano son of Shahmir Chang has, therefore, abated.
' As regards the other two appellants, undergoing life imprisonment, namely Noor Hassan son of Khamiso Chang and Khamiso son of Shahmir Chang, the information is that the unexpired portion of their sentences is just over two years.
' In the circumstances, Mr. K.M.A. Samdani, learned Advocate Supreme Court for the appellants, has not pressed this appeal on behalf of appellant No,2 Khamiso son of Shahmir and appellant No,4 Noor Hassan son of Khamiso Chang and has pressed this appeal only on behalf of Fazal Muhammad son of Kahmiso Chang as regards his sentence. It has already been noted that leave to Fazal Muhammad has been granted only to the extent of sentence of death awarded to him and not on merits.
3. Mr. K.M.A. Samdani, learned Advocate Supreme Court for the appellants, has confined his submissions on the question of sentence on two grounds namely, age and motive.
' On the question of age, learned counsel for the appellants submitted that Fazal Muhammad was of tender age when the occurrence took place in 1987. It has been pointed out by learned counsel that, when statement of Fazal Muhammad under section 342, Cr.P.C. Was recorded on 11-7-1989, his age was noted as 19 years, whereas, when his statement on oath under section 340(2), Cr.P.C. Was recorded on 17-8-1989, his age is shown as 20 years. According to learned counsel, the appellant would, therefore, be about 17 years of age at the time of occurrence, plus or minus few months.
' On the question of age learned counsel relied upon the following two reported judgments:--
(a) Wazir Gul v. State (PLD 1995 Kar. 112)
' In this judgment, a Division Bench of the Sindh High Court, while confirming the conviction of the appellant, reduced his, sentence of death to life imprisonment holding as follows:-- "In view of the above discussion, we find no ground to interfere with the judgment passed and conviction awarded by the trial Court. However, on the point of sentence, we are of the view that no doubt this is a gruesome murder but at the same time we cannot ignore the fact that the accused is a young man of about 20 years who has just entered into the realities of life, and therefore, taking a lenient view, we convert the death sentence to the sentence life imprisonment and also direct that the accused shall pay a fine of Rs,1,00,000 which if recovered shall be paid to the heirs of the deceased under section 544, Cr.P.C. In default of payment of fine the accused shall suffer rigorous imprisonment for further five years."
(b) Intizar Hussain v. Muhammad Sarwar (1996 SCM R 872)
' In this decision, complainant's petition for leave for enhancement of sentence awarded to the respondents/convicts by the High Court was refused observing that the requirement of section 367, Cr.P.C. Has been complied with by the High Court in not confirming the death sentence. It was noted that the respondents/covicts were extremely young (in their teens) at the time of the commission of the crime and that the immediate cause of murder was shrouded in mystery.
4. On the ground of motive, it was submitted by learned counsel for the appellants that, in the present case, the motive was shrouded in mystery and, therefore, the appropriate sentence was life imprisonment and not death. In this regard learned counsel cited the following judgments:--
(i) Nazir Ahmad v. Nisar Ahmad (1995 SCM R 840)
' In this case, the High Court had reduced the death sentence of the accused on the ground that prosecution had failed to adduce specific evidence regarding the motive for the occurrence and this was supported by the record and, in the circumstances, this Court refused to grant leave to the complainant.
(ii) Nawaz Khan v. Ghulam Shabbir (1995 SCM R 1007)
' In this case, the High Court had awarded life imprisonment on the ground that the motive for the offence was shrouded in mystery. This Court refused leave to the complainant against the judgment of High Court.
(iii) Muhammad Ashraf Khan Tareen v. State (1996 SCM R 1747)
' In this case, the sentence of death awarded to the accused by the trial Court was reduced to life imprisonment and this Court declined to interfere with the judgment of the High Court. It was observed that, in the circumstances, where the prosecution had not alleged any specific motive for commission of the offence, the appellant could not have been awarded the death penalty.
(iv) Muhammad Ashraf v. State (1998 SCM R 1764)
' In this case, sentence of death awarded to the appellant was converted to imprisonment for life on the ground that the motive alleged by the prosecution had not been proved by cogent evidence.
5. Sardar Muhammad Ishaq, learned Advocate Supreme Court for the complainant, first submitted that in the case diary, on the date of arrest, appellant's age is recorded as 22 years. Learned counsel referred to descion of this Court in the case of Muhammad Mushtaq v. State (1973, SCMR 219) in which it was held that no general rule can be laid down defining classes of cases in which lesser sentence may be imposed and, where there was absence of any mitigating circumstance, death sentence is the proper sentence for murder. In this judgment it was observed as follows:- "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 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 so 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."
' On motive, learned counsel for the complainant submitted that this was not a case where motive was shrouded in mystery and, therefore, appellant cannot get any help from the case law on this point.
6. Raja Abdul Ghafoor, learned counsel for the State, supported the impugned judgment on the question of sentence awarded to appellant Fazal Muhammad. According to learned counsel for the State, no case is made out for reduction of sentence.
7. The prosecution case has been narrated in brief in the leave granting order dated 25-7-1995 as follows:- "The deceased in this case is Muhammad Fazil Rahu. The occurrence took place on 17-1-1987 at 2.00 p.m. Across the cloth shop of Muhammad Hassan Lohar in Golarchi, District Badin. The F.I.R.
Was lodge& at 2.45 p.m. On the same day by Abdullah brother of the deceased. From Fazal Muhammad, condemned prisoner, was recovered the weapon on offence, namely, blood-stained hatchet within 15 minutes of the registration of the case. The eye-witnesses of the occurrence, apart from the first informant, are Muhammad Hassan Lohar, Muhammad Jumman Solangi and Muhammad Ismail Mehri. The motive as that 'in his 20 years political life the deceased has always been with the poor, to get the rights of the poor, auction of lands of Sindh, preparation of voters' list in Sindhi, payment of fair compensation to the owners of lands wherefrom oil was struck, for the end of Martial Law" the convicts were the 'Changs' of the area who could be hired assassins."
' The trial Court framed the following charge against the 4 accused including appellant Fazal Muhammad:- "CHARGE ' I, Syed Fazal Hussain Shah, Sessions Judge, Badin, do hereby charge
(1) Fazal Muhammad son of Khamiso Chang.
(2). Khamiso son of shamir Chang.
(3). Lakhoo son of Shamir Chang.
(4). Noor Hassan son of Sanwan Chang as follows:-- ' That you on 17-1-1987 at 2.00 p.m. On pacca road of Golarchi town in front of the cloth shop of Muhammad Hassan Lohar and in furtherance of common intention of you all did commit murder by intentionally causing the death of Fazal Rahu by giving him hatchet blow and thereby committed an offence punishable under section 302, P.P.C. Read with section 34, P.P.C. And with cognizance of this Court.
' And I further charge you Lakhoo, Khamiso and Noor Hassan that at the very same date, time and place you abetted the offence of murder of Fazal Rahu and thereby committed an offence punishable under section 302 read with section 109, P.P.C. Within the cognizance of this Court."
' As observed, the trial Court, Sessions Judge (West), Karachi, found all the accused guilty and in so far as appellant Fazal Muhammad is concerned he was awarded death sentence. While awarding the death sentence to Fazal Muhammad, the trial Court observed that since he had committed the murder of Fazil Rahu in broad daylight by giving hatchet blow he did not deserve any leniency in the matter of punishment.
8. On the question of age we may refer to a recent decision of this Court dated 17-3-1999 in Criminal Appeal No, 413 of 1995 (Zafar v. State) where also on the question of sentence an argument had been advanced on the basis of age of the two appellants. While dealing with the argument on the question of age, it was observed in the said judgment as follows:- "We may refer to a decision of this Court in the case of Zulfiqar v. State (1995 SCM R 1668). In that case appellant was about 15 years of age when the occurrence had taken place and he was described in the judgment as a person of tender age. In the cited judgment, the plea for reduction of death sentence to life imprisonment only on the ground of tender age of the appellant was not accepted, although on the other grounds the sentence was reduced. In the cited judgment reference was made to the following judgments:-
(a) Din Muhammad v. The State (1985 SCM R 625)
(b) Abdullah v. Shaukat (1988 SCM R 370)
(c) Muhammad Hanif v. The State (1994 SCM R 1152)
(d) Hukamdin v. The State (1994 SCM R 2134)
(e) Noor Muhammad v. The State (1988 SCM R 1640)
(f) Mushtaq Ahmad v. The State (1988 SCM R 165)
(g) Muhammad Siddiq v. The State (PLD 1990 SC 1079). After referring to the aforesaid judgments, it was observed as follows:- '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 alone 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 accused of tender age, besides this fact overall circumstances of the case have to be considered' ."
' According to learned counsel for the appellants, Fazal Muhammad was 17 years of age at the time of the occurrence although according to learned counsel for the complainant he was 22 years at that time. However, to quote from Zafar v. The State' ( supra) the ground of tender age alone may not be the firm rule applicable where the offence is heinous, premeditated, brutal and cruel. In this case leave has not been granted on merits. The guilt of Fazal Muhammad for murdering deceased Fazil Rahu was established beyond reasonable doubt during the trial and this finding was confirmed by the High Court and such finding has not been disturbed by this Court as is evident from the leave granting order. The murder of Fazil Rahu by appellant Fazal Muhammad was a premeditated, cold-blooded and cruel act. Deceased was given hatchet blow from the sharp side with great force and intensity which is evident from the postmortem report of P.W. 9 Dr. Muhammad Nawaz Abbasi who described the injury as follows:- "An incised wound 14.5 c.m x 6 c.m x cutting the scalp from wound at left temporal parietal region."
' The doctor further stated in his testimony that, on examining the skull cut area of the injury, he found membrane and brain matter were also cut in the area of the injury. The force and intensity with which the blow was struck on the scalp of the deceased by Fazal Muhammad can be gauged from the medical testimony.
The sentence of death was the normal sentence awarded to appellant Fazal Muhammad by the trial Court and confirmed by the High Court. In the facts of this case, such legal sentence was not liable to commutation only on account of age of the appellant.
9. The other ground advanced on the basis of motive is without any merit. No specific motive was assigned by the prosecution against .The appellant. After describing deceased's political career spread over two decades and stating that the deceased was always striving for the rights of the poor, end of Martial Law, etc., according to the prosecution case, the accused were "Changs of the area who can be hired assassins". It was not a case where a specific motive was assigned by the prosecution which the prosecution failed to establish. According to the prosecution case, as the accused were Changs, there was a possibility that they were hired as assassins. This can be equated with a case where no motive was assigned. The case against the appellant had been established, legal sentence was awarded. No case is made out for interference.
10. Conviction and sentence of appellant No,2 Khamiso and appellant No, 4 Noor Hasan has not been challenged, as observed earlier. Appeal of Lakhano has abated as he has already expired, as noted above. No case is made out for interference with the sentence awarded to appellant Fazal Muhammad.
11. As a result, Criminal Appeal No, 388 of 1995 is dismissed as regards appellants Fazal Muhammad Khamiso and Noor Hassan, whereas appeal of Lakhano has abated on account of his death.