' NASIR ASLAM ZAHID, J.---The above appeal, by leave of this Court, is directed against the judgment, dated 11-10-1994, of the Lahore High Court whereby the appeal of the appellants/convicts, Zafar son of Tanvir and Muhammad Nawaz son of Ameer was dismissed and the death sentences awarded to both the appellants were confirmed. Leave has been granted to the appellants only on the question of sentence. Leave granting order, dated 31-7-1995 reads as under:--- "For murder of Suleman on 16-3-1991 at 5-00 p.m., at Khokhar Colony, in presence of Umar Draz (P.W.7), and Sarfraz (P.W.9) by deadly weapons petitioners Zafar and Muhammad Nawaz were convicted for offence under section 302(a), P.P.C. And sentenced to death, fine and compensation by the learned Sessions Judge, Jhang on 12-8-1991. Their appeal was dismissed by the Lahore High Court, Lahore, on 11-10-1994 and their death sentences were confirmed.
(2) They have approached this Court and sought for leave to appeal.
(3) On 25-6-1995 a three Members Bench of this Court passed order in the words as under:--- 'Notice to the Advocate-General Punjab, as to why leave to appeal should not be granted to the petitioners on the question why the conviction of the petitioners be not'altered to one under section 302(b), P . P .0 . '
' Obviously the Larger Bench had declined to hear petition on merits.
(4) We have heard Sardar Muhammad Latif Khan Khosa, the learned counsel for the petitioners and the counsel on behalf of the Advocate-General Punjab. We too do not find the petitioners have any case on merits. This was the view taken by the three Members Bench of this Court on 25-6- 1995. We as such are not inclined to grant leave to appeal to the petitioners on merits. Their such request is declined. However, we are inclined to grant leave to appeal to the petitioners to consider whether their conviction from section 302(a), P.P.C. Be altered to section 302(b) and what sentence be awarded to them. Leave to appeal is granted accordingly."
' We have heard at length the arguments of Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appellants, and Mr. Ainul Haq, learned Advocate Supreme Court for the State, and, with the assistance of the learned counsel, referred to the relevant record.
2. For the proposition that appellants could not be convicted under section 302(a), P.P.C., as the requirements of Hadd punishment were not fulfilled in this case, learned counsel for the appellants referred to Article 17 of the Qanun-e-Shahadat, 1984 and also relied upon the judgment of this Court in the case of Sojhro Khan v. Ghulam Murtaza (1993 SCM R 87) and a judgment of the Sindh High Court in the case of Ghulam Murtaza v. State (PLD 1989 Kar. 293).
' In PLD 1989 Kar. 293, it was held that, in a case of murder to award death sentence i.e, life for life (Qisas retaliation), it is necessary under the Qur'an and Sunnah that two adult male witnesses of unquestioned integrity be produced in evidence for proof of the offence.
' In Sojhro Khan v. Ghulam Murtaza (supra) this Court, while commenting upon the judgment of the High Court impugned in that case where it was inter alia held that the evidence of the two eye- witnesses produced by the prosecution was not satisfactory had given the reason that for a case of murder in which death sentence could be imposed by way of Qisas as required under Qur'an and Sunnah, evidence of two adult male witnesses of unquestioned integrity be produced and in support reference was'made to verses from the Holy Qur'an, observed that Article 17 of the Qanun- e-Shahadat, 1984, envisaged this requirement as essential in a case of murder liable to Hadd and not liable to Ta'azir and the case under appeal was tried under the ordinary law.
3. On the question of sentence, the following points were raised for making out a case that the appropriate and legal sentence for the appellants was life imprisonment and not death:---
(a) The complainant party and appellants are related to each other.
(b) There was no previous enmity.
(c) The appellants had no criminal antecedents.
(d) No reason had been given by the Trial Court or by the High Court for awarding the death sentence.
(e) The two appellants had only fired once from their respective fire-arms and the fire was not repeated by either.
(f) Both the appellants were young.
(g) The two young appellants, who are cousins, acted under the influence of Zafar's father.
(h) The appellants had reacted to the beating given by deceased Suleman to his brother-in-law Dilmeer (father of appellant Zafar) 7/8 days prior to the occurrence and in this background, action of the appellants does not call for capital punishment.
(i) Two persons should not be awarded death sentence for murder of one victim and only the accused responsible for causing the death of the victim could perhaps be given the maximum punishment.
4. In support of his contentions on the question of sentence, Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appellants, referred to the following reported judgments:- --
(i) Iftikhar v. State (1994 PCr.LJ 1933).
' In this case the trial Court had awarded life imprisonment to the accused on a murder charge.
The High Court dismissed the appeal of the convict against his conviction and also dismissed the revision petition filed by the complainant for enhancement of the sentence. A learned single Judge of the High Court did not find it a case for enhancement of the sentence observing that, immediately prior to the murder, father of the convict was belaboured by the complainant and his sons and hence there was justification for the Trial Court to withhold the capital sentence.
' There are two distinguishing features in the case. The first being that, immediately prior to the murder, father of the convict had been belaboured by the complainant and his sons and, secondly, the High Court was not inclined to interfere in the facts and circumstances of that case with a sentence which could legally be awarded by the Trial Court.
(ii) Zahid v. State (1994 PCr.LJ 2000).
' In this case, sentence of death awarded by the trial Court was altered to life imprisonment on a murder charge where it had been argued that the appellant, a young man of 25/26, acted under influence of his uncle and had fired a single shot at the deceased deserved leniency. A Division Bench of the Lahore High Court after holding that the case against the appellant had been established beyond any reasonable doubt and his conviction under section 302, P.P.C., was unexceptionable, considering that there was no serious enmity between the parties and the, appellant being a young man having failed to pocket insult of his uncle fired a single shot at the deceased reduced the sentence to life imprisonment holding the facts as mitigating circumstances.
' On going through the report of this judgment, it has been noticed that, one day prior to the murder, son of the complainant and another person had a fight with appellant Zahid, his uncle Nazir and another person and the reason for the fight was that a few days earlier son of the complainant had given kicks and fist blows to appellant Zahid. Then on the day of occurrence at 7- 30 a.m. Deceased Abdul Khaliq alongwith his brother were waiting for a bus when Nazir (uncle of the accused Zahid) came there who was given kick blows by deceased Abdul Khaliq and his brother for the reason that previously he had given a beating to their brother and then the murder incident took place in the evening the same day when appellant Zahid fired at the deceased after raising a Lalkara to teach a lesson for giving beating to his uncle Nazir.
' The distinguished features in this case are that physical fights as well as exchange of abuses between the parties had taken place before the murder.
(iii) Abdus Sattar v. State (1984) SCMR 832).
' In this' case, appellant was the younger brother of one Fazal-ul-Qadir and both of them were convicted and sentenced to death for murder of the deceased who had given slaps to appellant Abdus Sattar in the village 'panchayat' at about 9-00 a.m. On the day of the murder and, at 'peshiwela' the same day, appellant Abdus Sattar and his brother Fazal-ul-Qadir committed the murder. Both the brothers were convicted for the murder and sentenced to death, but the High Court, maintaining the conviction, reduced the sentence only of Fazal-ul-Qadir as he had used the blunt side of the s. Datar' and had no direct motive. In appeal this Court held that, in the circumstances, where appellant had been slapped twice by the deceased, who was an adversary in the dispute before the village 'panchayat' and the High Court had held such action on the part of the deceased as provocation, the benefit of the provocation ought to have been given to the appellant particularly when such benefit had been extended to his elder brother. Distinguishing features are evident.
(iv) Muhammad v. State (1993 PCr.LJ 2188).
' In this case, the accused, a person of 65 years of age, had been awarded death sentence for a murder, but a Division Bench of the Lahore High Court altered the sentence to life imprisonment on the ground of his age and for the reason that, according to the prosecution case, deceased had given slap to his daughter a few days prior to the occurrence. The facts are clearly distinguishable from the facts of the present case.
(v) Sohail Iqbal v. State (1993 SCM R 2377).
' In this case, leave had been granted by this Court only on the question of sentence and, from the record, three different ages of the appellant/convict appeared. From the date of birth appearing in some record, his age at the time of occurrence was shown as over 21 years; trial Court had recorded his age by appearance as 16/17 years when his statement under section 340, Cr.P.C., was recorded, while his age was recorded as 16 years when his statement under section 342, Cr.P.C.
Was recorded. In view of the said discrepancy in the age of the appellant, it was held by this Court that it was only fair that benefit of the discrepancy should be extended to him and a reference was made to an earlier judgment of this Court in the case of Javid Iqbal v. State (1982 SCM R 447).
' In the reported judgment, therefore, the age of the accused was taken as less than 16 years at the time the incident took place. Facts also show that immediately before the incident, in a badminton match there was exchange of hot words and grappling between the appellant and the deceased and on account of this incident.The appellant was thrown out of the Hall and he straight went to his house about a few furlongs away and came armed with a gun and shot at the deceased on his left shoulder. The facts and the background with the discrepancy of age in the cited judgment show that the judgment does not support the contention of learned counsel.
(vi) Nasrullah v. State (1998 PCr.LJ 1055).
' In this case the sentence of death awarded to the appellant was altered to life imprisonment by the Lahore High Court on the ground that deceased had given shoe beating to appellant's father in the night preceding the day of the occurrence.
(vii) Haider Zaman v. State (1972 SCM R 666).
' Here this Court altered the sentence of death awarded to the appellant to life imprisonment on the ground that there were mitigating circumstances in as much as the act of the appellant was in retaliation of the assault made on appellant's father shortly before the occurrence as a result of which the appellant's father had to be hospitalised for several days. Features of this case cannot be equated with the present case.
(viii) Ghulam Abbas v. Mazhar Abbas (PLD 1991 SC 1059).
' The judgment in this case was authored by the then Chief Justice Mr. Justice Muhammad Afzal Zullah and, in the judgment, a distinction between family honour and private revenge was highlighted. It was observed as follows: -- "As is some times thought by some Members of the Bar, there is no conflict of authority on the subject under discussion. It was explained very vividly in the case of Ajun Shah that the reduction of sentence on the question of family honour or duty can be allowed notwithstanding the fact that an element of private revenge is involved in such like cases. The ratio in all these cases being that it depends upon the circumstances of each case, to determine the very delicate balance between whether family honour and duties overtook the human thought and action and whether the private revenge predominantly overtook such thought and action. To put it otherwise it is very delicate process of making a judgment and rendering a decision on such like most painful situations. The Judge has to go through the process of rationalization, and psychological analysis. By experience and knowledge of human nature he decides a difficult point; whether the family honour or for that matter a duty ends and private revenge takes over. In one case the lesser penalty and in the other the extreme penalty is then awarded."
5. Mr. Ainul Haq, learned Advocate Supreme Court for the State, opposing the arguments on behalf of the appellants, submitted that no case was made out for substitution of the capital sentence.
With life imprisonment as it was a pre-mediated murder. It was argued that, in the circumstances of the case, death sentence was the legal sentence which has been awarded to both the appellants and the same be maintained.
6. Here it would be appropriate to give the prosecution case which was established at the trial against the two appellants. The relevant facts are given in paras. 2, 3, and 4 of the judgment of the High Court which read as under:--- "2. Both the appellants are cousins inter se the eve-witnesses, namely,. Umar Draz P.W.7 is son of the deceased while Sarfraz P.W.9 is his cousin.
3. The prosecution case is that on 16-3-1991 at about 5 p.m. Umar Draz was present in his house.
Sarfraz P.W.9 came here to purchase a buffalo and enquired about Suleman deceased. Umar Draz told him that his father had not yet returned from Shorkot. Sarfraz P.W. Left the house of Umar Draz.
The latter came out to see him off. They were still present in the Ihata of the house when Suleman deceased returned. No sooner did he come there than Zafar appellant armed with a Carbine and Muhammad Nawaz armed with 7 MM Rifle appeared there. Raising Lalkara Zafar fired from his carbine hitting the deceased on the left hip. Muhammad Nawaz also fired at the deceased hitting him on his left armpit. On receiving the injuries Suleman deceased fell on the ground. Umar Draz P.W.7, Sarfraz P.W. 9 and Yousaf P.W. Took shelter in a room and came out after the departure of the appellants. Suleman died instantaneously of the injuries.
4. The motive for the offence was that some 7/8 days prior to the occurrence Suleman deceased had quarrelled with his brother-in-law Dilmeer and had beaten him. They were separated by Sarfraz P.W. Zafar appellant who is the son of Dilmeer had threatened the deceased of taking the revenge of the beating given to his father."
' It may be repeated that the Trial Court found both the appellants guilty of the murder of Suleman, which finding was confirmed by the High Court and in this Court also, as evident from the Leave Granting Order, dated 31-7-1995 (reproduced hereinabove), whereby the finding has been confirmed. It was observed in the Leave Granting Order that "We too do not find the petitioners have any case on merits".
7. Submission of learned counsel for the appellants was that conviction of the appellants under section 302(a), P.P.C. Was not legal and maintainable and this was a case where conviction could only have been recorded under section 302(b), P.P.C: The charge against the appellants had been framed under section 302/34, P.P.C. But we find that conviction was recorded under section 302(a)
P.P.C., which is evidently a typographical error and, as rightly submitted by the learned counsel for the appellants, the conviction should have been recorded under section 302 (b), P.P.C. This being a typographical error isle corrected/altered to read as conviction udner section 302(b), P.P.C.
8. Most of the grounds advanced by Sardar Muhammad Latif Khan Kosa, learned Advocate Supreme Court for the appellants, for reduction of the sentence need not take much time for consideration. The grounds that the complainant party and appellants are related to each other; there was no previous enmity, the appellants had no criminal antecedents; no reason had been given by the trial Court or by the High Court for awarding the death sentence to the appellants and.
The two appellants had only once fired from their respective fire-arms and the fires were not repeated by either have no substance in the facts of this case. The fact that the complainant party and the appellants are related to each other and there was no previous enmity and that the appellants had no criminal antecedents might have been relevant while considering merits of the case but have no relevance for reducing the sentence. As observed, the fact that the appellants, had fired at and killed deceased Suleman was proved at the trial which finding has been confirmed by the High Court and also by this Court.
' As regards the ground that no reasons have been given by the trial Court or by the High Court for awarding death sentence, it is sufficient to observe that the normal sentence for committing a murder is death even under Ta'zir. If, therefore, a Court awards death sentence for the offence of murder, the Court is not required to give any reason for awarding such sentence. It is only when the lesser sentence under the old law (old section 302, P.P.C.) and under the current law, as was also applicable at the time the offence in this case was committed, under section 302 (b), P.P.C. Is awarded, the Court is required to record reasons for awarding such sentence. In the circumstances, we are of the view that the fact that the trial Court or the High Court did not give any reason for awarding the death sentence is no ground for altering the sentence or for making any grievance against the award of the death sentence, a legal sentence under section 302(b), P.P.C.
' The next ground taken was that the two appellants only fired once from their respective fire-arms and the fire was not repeated by either. As already observed, the case against the two appellants for murdering Suleman has been established beyond reasonable doubt and the finding in this regard by the trial Court has been confirmed by the High Court as well as by this Court. Death sentence has been awarded. Merely the fact that the two appellants had only fired once is in the facts of this case no ground for altering the sentence to life imprisonment.
' Another contention was that the two appellants were cousins and they acted under the influence of the father of Zafar (one of the appellants). Zafar's father was neither an accused in the case nor he appeared as a witnesses either for the prosecution or for the defence. There is no evidence on record that the two appellants had acted under the influence of Zafar's father. From the evidence on record also, no inference can be drawn that the two appellants had acted under the influence of Zafar's father.
' Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appelants, had ragued with great emphasis on the ground that the appellants reacted to the beating given by deceased Suleman to Dilmeer, father of appellant Zafar, 7/8 days prior to the occurrence and, in this background, action of the appellants does not call for capital punishment. We don't see how such a petty incident and that also having taken place 7/8 days prior to the occurrence would give the two appellants a plausible reason for committing the cold-blooded murder of Suleman. From the proved facts, it follows that the two appellants came fully prepared with fire-arms and with the intention to kill deceased Suleman. It was a premeditated callous and cold-blooded murder.
It has to be kept in mind while considering such reasons as mitigating circumstances that the principle of proportionality is not lost sight of. If a person is slapped, the aggrieved person or a close relative of the aggrieved person does not get the right to come back after a week duly armed with the specific intention of killing and commit a cold-blooded murder. The person who had slapped him a week back cannot take a plea in the trial for reduction of sentence that this was natural reaction to the salp given to him or to his close relative a week back by the deceased.
There should be at least some semblance of proportion between the injury or insult given by the deceased and the "reaction" by the accused in killing the deceased and then the question of time lag between the so-called provocation and the reaction in the form of cold-blooded murder is also relevant. There is always a distinction of degree between a fight which leads to a murder on the spur of the moment or within a short time and a case where there is considerable time lag between the so-called provocation and the so-called reaction in the form of murder. In the first category of cases, perhaps it might be possible to advance the argument that a case for lesser sentence is made out subject to proportionality between "provocation" and "reaction" but in the other category of cases without there being other mitigating circumstances, no case would be made out for awarding the lesser sentences. We find no substance in the submission of learned counsel for the appellants that the beating given by deceased Suleman to Dilmeer 7/8 days prior to the occurrence was a mitigating circumstance for altering the sentence awarded to the appellants.
9. The other submission which was also advanced with great emphasis by the learned counsel for the appellants was that the appellants were young and, therefore, it was not a case for awarding capital sentence. We also find no merit in the submission. According to learned counsel, appellant Zafar was 23 years and appellant Muhammad Nawaz was 24 years of age at the time of occurrence. The two appellants were of reasonably mature age. They cannot be described as of "tender ages". In our view, their ages at the time of occurrence is no ground for reduction or alteration of the sentence to life imprisonment. 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 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 circumstances 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."
10. In the present case, as observed, according to the learned counsel for the appellants, appellant Zafar was 23 years of age whereas appellant Muhammad Nawaz was 24 years of age. They cannot be described young persons of tender ages. As already noted, there is no evidence or indication that either of them acted under the influence of any elder. There is no substance in the contention that on the ground of their ages they are entitled to alteration of sentence.
11. Finally it has been submitted that the two appellants should not be awarded death sentence for the murder of one victim. There is no such principle in our jurisprudence.
' The trial Court framed the following charge against the two appellants:-- "That you (Zafar and Muhammad Nawaz accused) on 16-3-1991 at 5.00 p.m. In the area of Khokhar Colony Dhakhli Mauza Bhangoo, Police Station Shorkot, District Jhang, in furtherance of your common intention had intentionally murdered Suleman son of Mian Reehan by causing injuries by firing with Carbine and rifle with which you (Zafar and Muhammad Nawaz) were respectively armed and as such you both have committed Qatal-e-Amad and are guilty of the offence punishable under section 302/34, P.P.C. Which is within the cognizance of this Court."
' The trial Court held as follows:-- "As a result of the above discussion I have come to the conclusion that the prosecution has been able to bring home the guilt of the accused beyond reasonable doubt having committed Qatl-e- Amd of Suleman son of Reehan in furtherance of their common intention."
This finding of the trial Court has been confirmed by the High Court and also by this Court. Both the appellants carrying separate firearms came fully armed with common intention to kill the deceased. Both fired at the deceased and both the fires hit the deceased and deceased died on account of injuries received. In the facts of this case, therefore, no difference is to be made as to whose shot ultimately was the cause of death of the deceased. In the facts of this case, therefore, no concession can be extended for altering the sentence of one of the appellant.
12. It may further be added that, for the murder of Suleman, both the appellants have been held liable and sentenced to death which is a legal sentence that could be awarded to them under the law. We find no illegality or compelling reason to alter the legal sentence awarded to the appellants. In the context reference can be made to the following reported decisions:--
(i) Abdur Rahim v. State (PLD 1960 SC 401)
(ii) Shaukat Hussain v. State (1971 SCM R 132)
(iii) Rustam Khan v. State (1972 SCM R 657)
(iv) Ghulam Haider v. State (1980 SCM R 289)
13. The upshot of the above discussion is that this appeal fails and is dismissed.