1. MUHAMMAD YAQUB ALI, C. J-- This appeal is by right under Article 18S(2)(a) of the Constitution.
2. Shah Iqbal, appellant, was convicted by the Sessions Judge, Hazara, for the murder of one Abdur Rahman and by order dated 30-3-1974 sentenced to life imprisonment. He filed an appeal in the High Court against his conviction while Maulvi Abdus Samad, the private complainant, filed a revision petition-making grievance against the award of the lesser penalty to the convict. The appeal and revision were heard together by a Division Bench of the Peshawar High Court. On merits, the learned Judges upheld the conviction of Shah Iqbal and by order dated 29-7-1975 enhanced the sentence of life imprisonment to death. In the opinion of the learned Judges, the circumstances that Shah Iqbal had killed Abdul Rahman on -account of sectarian animosity did not constitute any extenuating circumstance to award to the convict the lesser penalty provided by law. Hence this appeal.
3. The facts proved are that on the morning of 19th May, 1971, at about 7 a.m., the appellant killed Abdur Rehman by delivering him hatchet blows in the graveyard of village Makhan, Tehsil Haripur, District Hazara, where the deceased had gone to offer Fatiha at the grave of his mother. The assault was witnessed by Muhammad Idris, P. W. 6 and Abdul Jabbar, P. W.
7. Muhammad Idris, P.
4. W., nephew of the deceased, was about to go to the Police Station to report the incident when Jaban Khan. S. I., arrived there to undertake investigation in another case registered at about 7 a.m.
5. Against Shah Iqbal for a similar murderous attack with a hatchet oil one Abdur Rauf. The statement (Exh. P. A/1) of Muhammad Idris, P. W., was accordingly recorded on the spot by Jahan Khan, and a case under section 302, P. P. C. Was registered against Shah Iqbal at the Police Station, Haripur.
6. Shah Iqbal was arrested on the same day in village Makhan. The S. I., Jahan Khan, recovered from his person blood-stained chaddar (Exh. P/5) and shirt (P/6). The recovery was witnessed by Muhammad Asghar, P. W., the village lambardar and Jahan Khan, S. I., P. W.
9. The Chemical Examiner and the Serologist comfirmed that the blood stains on these articles were of human origin.
7. The post-mortem examination revealed six deep incised wounds around the region of the face and neck of the accused. The injuries were caused by sharp-edged weapon wielded with brutal force. The bones of the skull and the face and the muscles of the neck where the blows bad.
8. Landed were completely severed.
9. On the 21st May, 1971, the appellant was produced before Mr. Muhammad Ibrahim Khan, Magistrate 1st Class, Haripur, and made before him the following confession: "I have murdered a man whose name is Abdur Rahman and he is a Wahabi because he has harmed our `Deep'. He alongwith other Wahabis were after my life. On the day of occurrence, I was coming towards the Bazar and they had waylaid me. They fired at me but regardless of the fire sots, I attacked one Abdur Rahman, whom I dealt two blows of hatchet and finished him. After this another person whose name is Abdur Rauf fired a pistol shots at me. I injured him also with the hatchet. In the meanwhile other Wahabis who were there to kill me attacked me with sticks and I saved my life by running away from there to my village where the police arrested me."
10. The appellant was also examined by the Special Medical Board to verify his mental health. Dr. Muhammad Shafiq, Psychiatrist, deposed that after due observation and examination, the Board had formed the opinion that Shah Iqbal was mentally sound and fit to stand trial.
11. The testimony of the two eye-witnesses, the recovery of the blood-stained clothes from the person of Shah Iqbal and the retracted confession recorded by Mr. Muhammad Ibrahim Khan, Magistrate, 1st Class, P. W. 4, proved beyond reasonable doubt that Shah Iqbal had been guilty of the offence of murder under section 302, P. P. C. The Sessions Judge, Hazara, accordingly, convicted him under section 302, P. P. C., but awarded the lesser penalty of life imprisonment for the reasons which appear in para. 18 of his judgment, reproduced below: "18. The motive attributed to the accused for taking the life of Maulvi Abdur Rahman is confined to a sectarian difference between the Sunnis and Wahabis. It is a matter of shame that the sectarian feelings were fanned in the small village community to such an extent that it was difficult to maintain peace and tranquillity in the village and prominent members of both the sects were bound down. Both the sects offered their prayers under the same roof of the House of God but tempers rose so high that they could not restrain themselves within the limits of God. The accused assumed the role of a fanatic and was driven to take extremely an unwise step by assaulting his opponents. He on the same day had made a murderous attack on the life of Hafiz Abdur Rauf, ran amuck and put Abdur Rahman to death. I have given my anxious thought to the question of sentence and have come to the conclusion that in the circumstances, the capital punish--ment is not called for."
12. The trial Judge thus considered the killing of Abdur Rahman, deceased, by Shah Iqbal as "an extremely unwise step" taken under sectarian influence. This "unwise step" was treated as a mitigating circumstance and instead of awarding to the convict the normal penalty of death; he chose to sentence him to life imprisonment.
13. The learned Judges in the High Court did not agree with this view and finding that Shah Iqbal had been guilty of committing murder in a cold-- blooded manner for which the law provides no concession enhanced the sentence to death.
14. We have re-examined the evidence on which the conviction of Shah lqbal is based. The two eye- witnesses had no motive whatever of their own falsely implicate Shah Iqbal, appellant. The account given by them is corroborated by the recoveries of blood-stained clothes from the person of Shah Iqbal. The investigating officer went to village Makhan and placed Shah Iqbal under arrest. He had already been apprehended by the villagers and disarmed of the hatchet lest he should injure some more `wahabis' of the village. In that attempt some injuries were caused to Shah Iqbal consisting of a lacerated wound on right elbow --" X 1/3" and some contusions and laceration marks on right shoulder, left thigh, right and left knee and front of neck. None of these was a bleeding injury, which could have stained not only his shirt but also the chaddar with blood as found by the chemica examiner.
15. The prosecution case finds further support from the retracted confession made by Shah Iqbal, appellant, and his admission in the statement under section 342, Cr. P. C. That he intended to kill all the Wahabis in the village. The appeal against conviction under section 302, P. P. C. Has, accordingly, no merit.
16. As to the question of sentence, we find ourselves in agreement with the view taken by the learned Judges in the High Court. Shah Iqbal acted with premeditation and with a motive which called for a stringent sentence.
17. "In considering whether the sentence of death imposed upon an accused committing a murder out of religious zeal is proper or not, it would be dangerous in this country for the High Court to give cause for belief that death should not, as a rule, result from murders even when they are committed for attacks on leaders of religious communities or under their influence unless they are committed in circumstances which do amount to grave and sudden provocation."
18. The primary sentence for the offence of murder provided in section 302 P. P. C. Is death. However, the lesser sentence of transportation for life or, life imprisonment may be awarded only if there exists some mitigating or extenuating circumstances and we concur with the learned Judges in Aziz Ahmad Jan Muhammad v. Emperor (AIR 1938 Lab. 355) that religious zeal is not a mitigating or extenuat--ing circumstance. If motivated by a sectarian sentiment, the offender takes the life of the member of another religion or sect, he deserves to be sentenced to the extreme penalty of law.
19. Thus no proper ground existed to award to Shah Iqbal appellant the lesser penalty for the offence of murder. On the contrary the motive with which he acted was an aggravating circumstance and the penalty of death has been rightly awarded to him by the High Court.
20. The appeal, accordingly, fails on both the grounds and is hereby dismissed.