MAMOON KAZI, J.- These to appeals arise out of-the judgment passed by the Lahore- High Court, Rawalpindi Bench, Rawalpindi, dismissing Cr. Appeal No. 79 of 1991 filed by. Appellants Ghulam Asghar and Mumtaz Hussain, and Cr, Revision No. 145 of 1991 filed by appellant Muhammad Afzal.
2. It may be pointed out that, appellants Ghulam Asghar and Mumtaz Hussain were tried by Additional Sessions Judge, Attock alongwith one Muhammad Iqbal for murder of one .Nazir Iqbal.
Whereas the said Muhammad Iqbal was given benefit of doubt and acquitted, appellants Ghulam Asghar and Mumtaz Hussain were found to be guilty under Sections 302/34 PPC and convicted.
Appellant Ghulam Asghar was sentenced to death and to pay a fine of Rs. 6000/-, or in default to undergo further R.I. For one year while appellant Mumtaz Hussain was sentenced to imprisonment for life and to pay a fine of Rs. 6000/-, or in default to suffer R.I. For one year. Both the appellants- were also directed to pay compensation to the heirs of the deceased.
3. Case of the prosecution against the said appellants is that, on 5.2.1990, at about 0300 p.m., when deceased Nazir Iqbal was sitting in front of baithak of one Sher Jang alongwith his father, Muhammad Afzal, and one Nadeem Iqbal,-the to appellants and their acquitted co-accused went there and attacked Nazir Iqbal. Appellant Ghulam Asghar fired a shot at him with his pistol, which hit him on his abdomen, while Mumtaz Hussain gave a hatchet blow On his left arm. The third accused was, however, empty handed. The witnesses then intervened and. Got the deceased free.
4. Motive for the occurrence, as stated in the dying declaration made by the deceased to the Investigating Officer shortly after the occurrence was revenge, as appellant Ghulam Asghar and the deceased had an altercation about to or three months prior to the said occurrence where the deceased had allegedly made assault on the said appellant.
5. The said dying-declaration was recorded at Police Station Khorr at 04:45 p.m. By ASI Muhammad Adam Khan, (PW.14) on the basis of which-a formal FIR (Exh.PG) was drawn the same day at Police Station Pindigheb at about 05:30 p.m. By PW-4 H.C. Afzal Khan. In the meanwhile, Nazir Iqbal was shifted to THQ Hospital Pindigheb where he expired at about 06:15 p.m.
6. After recording of FIR, investigation was started by the police. Appellant Mumtaz Hussain. And co- accused Muhammad Iqbal were arrested on 13.12.1990 and on 20.2.1990, the former led the police to the recovery of a blood-stained hatchet from his residence which was secured by the police under mashirnama. On the same day, appellant Ghulam Asghar was also arrested and a revolver was recovered by the police from his Dera.
7. The accused at their trial denied the said allegations. Appellant Ghulam Asghar also denied that he had been insulted by Nazir Iqbal about to or three months prior to the said occurrence. The appellants also got their statements recorded under Section 340(2) Cr.P.C., and examined Muhammad Riaz, Ghulam Ahmad and Muhammad Munsha Khan in their defence.
8. The case of the prosecution rested on the evidence of twelve witnesses. PW. 11 Muhammad Afzal and PW. 12 Nadeem Iqbal were the eye-witnesses of the said incident. The former .Was the father of the deceased. Although, the learned Judges in the High Court placed reliance on the evidence of the said eye-witnesses as they found their evidence to be straightforward and confidence inspiring, however, in regard to motive, the learned Judges were not impressed by the prosecution evidence as they found. That the alleged insult had been caused to accused Ghulam Asghar to or three months prior to the said occurrence during which the parties stayed in the village, yet no other unpleasant incident occurred. Consequently, the learned Judges concluded that something must have suddenly transpired between the deceased and the accused at the time of the attack.
Therefore, according to the Learned Judge real motive for commission of the said crime was shrouded in mystery and therefore, although, the conviction, of the accused was maintained, but the sentence of death awarded to appellant Ghulam Asghar was altered to that of imprisonment for life. Revision filed by the complainant to challenged acquittal of the third accused and awarding of lesser punishment to Mumtaz Hussain by the trial Court was also dismissed.
9. Both the appellants as well as the complainant were dissatisfied with the said findings and they consequently filed their respective petitions for leave to appeal before this Court.
10. Leave was granted firstly on the question, whether the5 learned Judges were justified in awarding lesser punishment to appellant, Ghulam Asghar on the ground referred to by them in the said judgment and secondly, to examine whether in view of the said observations made in the impugned judgment, conviction awarded to appellant Mumtaz Hussain under Section 34, PPC, could be justified.
11. Taking a cue from the said observations made by the learned Judges in the High Court, Sardar Muhammad Ishaq Khan has firstly argued that, in case motive for commission of the said crime was shrouded in mystery and the prosecution had no clue as to what had suddenly transpired between the accused and the deceased just before the attack, accused Mumtaz Hussain cannot be said to have shared the same intention with co-accused Ghulam Asghar. Therefore, conviction of accused Mumtaz Hussain under Sections 302/34, PPC was liable to be set aside.
12. It is pertinent to point out in this regard that the line of reasoning adopted by the learned Judges in the High Court while allowing benefit of imprisonment for life to appellant Ghulam Asghar does not appear to be based on correct appreciation pf evidence as the learned Judges in the High Court clearly appear to have overlooked the -evidence of PW.11, Muhammad Afzal and PW. 12, Nadeem Iqbal, The evidence of the said witnesses indicates that alter the first incident, the deceased had left die village and had taken a job in Faisalabad. It was after his return from Faisalabad that the said occurrence took place. Therefore, the observations that the deceased and appellant Ghulam Asghar had stayed in the same village after occurrence of the said unpleasant incident were clearly against the evidence recorded by the Trial Court. The learned Judges also appear to have overlooked PW. 11 Muhammad Afzal, the father, of the deceased, lends further corroboration to the fact that. The deceased had made such dying-declaration. Consequently, we are unable to agree with the said contention of the learned counsel.
13. Both .The dying-declaration as well as the evidence of PW. Ll Muhammad Afzal clearly indicate that the unpleasant incident, which is said to have occurred between the deceased and appellant Ghulam Asghar a few months prior to the said occurrence, was the motive for commission of the said crime. There appears to be no other evidence on record which can render this evidence doubtful, It would, therefore, be erroneous to assume that there was no clear evidence led by the prosecution in regard to motive. In our view, the prosecution had not only succeeded, in establishing motive in this case, but it was also established that it was a premeditated crime committed by the accused. So far as the question in, regard to sharing of the common intention by accused Ghulam Asghar and Mumtaz Hussain is concerned, no doubt, it was allegedly the shot fired by accused Ghulam Asghar from his pistol which is said to have caused the fatal injury to the deceased, but the circumstances further indicate that appellant Mumtaz Hussain had also shared the same intention with him. 'As was held by this Court in Slier Zaman v. The State (1973 SCMB 503), common intention. Can even be formed at the spur of the moment. Therefore, in our view, there appears to be no doubt that both the accused had shared the same common intention at the time of commission of the said crime.
14. Adverting now to the question of sentence, Mr. Zamir Hussain, learned counsel for the complainant has argued that in case motive has been successfully established by the prosecution and there are no mitigating circumstances available in the case to justify awarding of lesser punishment of life imprisonment to accused Ghulam Asghar, maximum penalty of death 'should have been awarded to the said accused. The contention of Sardar Muhammad Ishaq, on the other had, was that as benefit has already been allowed to accused Ghulam Asghar by the High Court for which reasons have also been assigned, further interference by this Court on the question of sentence-would be unwarranted.
15. Several judgments of this Court can be .Referred to in support of the contention of Sardar Muhammad Ishaq (see Niaz Ahmad v. Naim Akhtar (1977 SCM R 159, Muhammad Mukhdoom v. The State (1984 SCMR 837), Muhammad Yaseen v. Muhammad Shafique (1997 SCM R 1527), Akram Beg v. The State (1998 SCM R 317), Muhammad Ishaque Khan v. The State (PLD 1994 SC 259), Muhammad Ashraf v. The Stare (1981 SCM R 856), and Ghulam Muhammad v. The State (1972 SCMR 393). The said judgments clearly indicate that reluctance has been shown by this Court to interfere with the sentence awarded by the High Court unless the sentence is against law or it is not in consonance with sound judicial principles. However, as pointed out earlier, the findings of the learned Judges, in the High Court that motive for commission of the crime was shrouded in mystery are not warranted by the circumstances of the case. Even otherwise, it is erroneous to assume that in every case, if motive for commission of the crime is not established by the prosecution, benefit of lesser punishment of imprisonment for life should go to the accused. We would like to point out that this principle cannot be applied in every case as a general rule. There may be cases where, though, motive is not established, but owing to heinous nature of the crime the accused may not be entitled to any leniency while awarding punishment to him. Therefore, the question would depend upon the circumstances of each case however, circumstances of the present case clearly indicate that there are. No mitigating factors, benefit of .Which may go to appellant Ghulam Asghar. The circumstances of the case indicate that the act of the accused was to brutal and merciless. The deceased was a young man of about 18 years and he was deprived of his life when he was in the prime of his youth. It is no gainsaying that if circumstances of the case do not justify awarding of lesser penalty of imprisonment for life, sentence of death is to be awarded by the Court. In Muhammad Sharif, vr Muhammad Javed alias Jada Tedi " (PLD 1976 SC 452), tendency of the Courts to find pretext to alter a sentence of death to imprisonment tor life was disapproved by this Court in strong words. This judgment has been followed by this Court in other cases as well. In Bismillah v. Mahammad Jabbar (1998 SCMR 860), recently decided by this Court, benefit of lesser punishment allowed to the accused by the High Court by conversion of death penalty to sentence of imprisonment tor life was declined in view of the heinous nature of the crime.
16. In the result, Appeal No. 356/94 filed by Muhammad Afzal is allowed and the sentence of imprisonment for life awarded by the High Court to appellant Ghulam Asghar is converted into sentence of death. The sentence of accused Momtaz Hussain shall however, remain intact. The other appeal filed by Ghulam Asghar and Mumtaz Hussain is dismissed.