JAVED IQBAL, J.---Through these two appeals (Criminal Appeal No,65 of 1998 and Criminal Appeal No,66 of 1998) by leave of the Court judgment, dated 1-4-1997 passed by a learned Division Bench of Lahore High Court (Rawalpindi Bench) has been assailed whereby the sentence of death awarded by learned trial Court has been altered to that of life imprisonment. The sentence of fine amounting to Rs,20,000 was maintained and in case of its realization the same was to be paid to the legal heirs of the deceased as compensation alongwith benefit of section 382-B, Cr.P.C. We intend to dispose of the abovementioned two criminal appeals by this common judgment as the facts in both the appeals are same.
2. Briefly stated that facts of the case as enumerated in the impugned judgment "as disclosed in the F.I.R. Exh.PG was to the effect that Muhammad Siddique maternal uncle of first informant Muhammad Ilyas was constructing a poultry farm. On 26-1-1989, first informant with his uncle Abdul Latif and his aunt Anwar Jan were going to the poultry farm of Muhammad Siddique for work.
His uncle Abdul Latif was ahead of them. When they reached near the land of Walayat Khan, Muhammad Sufian armed with Churri followed by his co-accused Muhammad Amin and Wazir Ahmad, both empty-handed, came there. Muhammad Amin directed that if Sufian was his son he would take revenge for his insult. On hearing, Abdul Latif started running. Muhammad Sufian followed him and after some distance stopped him and gave a blow on the right arm. He gave another blow to Abdul Latif in front of the chest. Wazir Ahmad picked up a stone and hit it on the head of Abdul Latif. First informant with his aunt Anwar Jan raised alarm. Abdul Latif fell on the ground whereupon first informant tried to shield him. Muhammad Amin gave a Sota blow on the back of the first informant and thereafter caught hold of him from his hair. In the meanwhile, Muhammad Siddique also came at the spot.. The commotion attracted many people whereupon the assailants ran away. Abdul Latif while being transported to the hospital expired on the way.
Motive for the occurrence was that six days earlier Anwar Jan wife of deceased had gone to the shop of Muhammad Amin. They had an altercation about some amount. Abdul Latif also came there and called Muhammad Amin names, therefore, the present occurrence". After completion of investigation Muhammad Sufian appellant was sent up for trial and found guilty by the learned Additional Sessions Judge, Rawalpindi, under section 302, P.P.C. And sentenced to death with fine of Rs,20,000 or in default to. Suffer. R.I. For two years. Being aggrieved an appeal was preferred which met the same fate but the sentence of death was altered to that of life imprisonment.
3. Leave was granted by this Court vide order, dated 10-3-1998 which is reproduced hereinbelow for ready reference: "Petitioner in Jail Petition No,43 of 1997; namely, Muhammad Sufian and his co-accused, Muhammad Amin and Wazir Ahmad, were tried for the murder of Haji Abdul Latif. The trial Court acquitted the co-accused (who were empty-handed) but Muhammad Sufian was convicted and sentenced to death besides fine of Rs,20,000 and in default of payment of fine to undergo two years' R.I. The jail petitioner filed an appeal before the High Court. The appeal was dismissed but his sentence was reduced to imprisonment for life by the High Court. Acquittal of the co-accused was maintained while dismissing the revision filed by the complainant against the acquittal of the co- accused. In this Court, complainant Muhammad Ilyas, nephew of the deceased, has sought ehancement of the sentence of Muhammad Sufian and has also prayed for conviction of the co- accused who have been acquitted. Muhammad Sufian also filed a petition from jail against his conviction and sentence.
2. We have heard Mr. Rabnawaz Noon learned counsel for the complainant. We have also gone through the relevant record.
3. In so far as the question of sentence is concerned, it has been pointed out by the learned counsel that the deceased was pursued by Muhammad Sufian and after catching him gave him Chuuri blows on vital parts of his body. It was further pointed out that, according to post-mortem report, the death was caused instantaneously on the infliction of the injuries on the chest of the deceased. The sentence of death has been reduced by the High Court on the ground that Muhammad Sufian was apparently acting under the influence or orders of his father. It has been pointed out by the learned counsel that apart from the manner in which the murder had been committed by Muhammad Sufian and that he was a mature man of 35 years or so and, therefore, not a case of a young person who could be influenced to commit a crime at the asking of an elder, this was not a case for awarding lesser sentence. Petition for leave is not pressed as regards acquitted accused. In our view, a case for grant of leave is made out as regards the question of sentence awarded to Muhammad Sufian.
4. In the case of Jail Petition also, in the circumstances, we consider it a case for re-appraisal of the evidence.
5. In the circumstances both these petitions are allowed and leave is granted. The appeals will be heard together."
4. It is mainly contended by Malik Rabnawaz Noon, learned A.S.C. On behalf of Muhammad Ilyas appellant in Criminal Appeal No,65 of 1998 that the normal sentence of murder is death which could not be altered to that of life imprisonment in the absence of any extenuating or mitigating circumstances which are absolutely lacking in this case. It is urged with vehemence that the accused/appellant is about 35 years of age who had acted brutally and inflicted successive Churri blows to the deceased on his vital parts and thus by no stretch of imagination it could be imagined that the murder was committed under the influence of his father. It is next contended that prosecution, has proved the case beyond shadow of doubt and the ocular account furnished by the eye-witnesses coupled with medical evidence has rightly been appreciated by the learned trial and Appellate Courts by awarding death sentence but there was absolutely no lawful justification to get the same altered to that of life imprisonment without any rhyme and reason because the normal penalty of murder is death which cannot be altered if the accusation is proved beyond shadow of doubt. It is argued that the learned High Court has erroneously relied on 1985 SCM R 477 which has no relevancy with the matter.
5. Mr. Arshad Ali Chaudhry, learned A.S.C. Appeared on behalf of Muhammad Sufian accused/appellant in Criminal Appeal No, 66 of 1998 and contended that the convict/respondent has already undergone the awarded sentence, therefore, the question of its enhancement does not arise as it amounts to double jeopardy. In order to substantiate his contention the provisions as contained in Article 13 of the Constitution of Islamic Republic of Pakistan were also referred.
6. We have carefully examined the respective contentions as agitated on behalf of appellants in the light of relevant provisions of law and record of the case. We have minutely perused the judgment of learned trial Court and impugned judgment. The entire evidence has been thrashed out with the eminent assistance of learned counsel. A careful scrutiny of the entire evidence would reveal that ocular account furnished by Muhammad Ilyas (P.W.11) and Mst. Anwar Jan (P.W.12) are worthy of credence, confidence-inspiring and considered in its true perspective by the learned trial and Appellate Courts. It is wroth-mentioning that the ocular version finds support from medical evidence. The eye-witnesses namely Muhammad Ilyas (P.W.11) and Mst. Anwar Jan (P.W.12) remained firm to the test of cross-examination and nothing advantageous could be elicited. There is no justification whatsoever on the basis whereof their statements could be discarded. We are conscious of the fact that Muhammad Ilyas (P.W.11) is nephew of the deceased while Mst. Anwar Jan (P.W.12) is widow of deceased but on account of interest relationship their version cannot be disbelieved. No serious enmity whatsoever was alleged against them and the parties are living amicably in the same vicinity for the last so many years. Even otherwise it is well-established by now that "although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied. There might be cases in which the witnesses related to the deceased might be otherwise quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence. Even their uncorroborated testimony may be implicitly relied upon of course in the context of other relevant circumstances of each case". (Abdur Rashid v.
Umid Ali PLD 1975 SC 227; Jahan Khan v. State PLD 1959 SC (Pak.) 488; Niaz v. State PLD 1960 SC 387; Nazir and others v. State PLD 1962 SC 269; Muhamamd Ismail v. Khushi Muhammad and 7 others PLD 1974 SC 27; Iqbal alias Bhala v. State 1994 SCM R 1). We are not persuaded to agree with Mr. Arshad Ali Chaudhry, learned A.S.C. That the convict/respondent has already undergone the awarded sentence and any enhancement thereto would amount to double jeopardy and violative of the provisions as contained in Article 13 of the Constitution of the Islamic Republic of Pakistan for the simple reason that he is not being punished for the same offence more than once and more so, the doctrine of nemo debet bis vexari pro eadem causa (no person should be twice disturbed for the same cause), autrefois acquit (formerly acquitted) and autrefois convict (formerly convicted) cannot be made applicable to this case which simply means that no one shall be punished or put in peril twice for the same matter.
7. After having gone through the entire evidence and keeping in view the defence version in juxtaposition we are of the considered opinion that the prosecution has established the accusation and the act of convict/respondent was deliberate and calculated. In view of the said scenario we intend to discuss the question as to whether the sentence of death could have been altered on the basis of influence exerted by the father which prompted the accused/appellant to commit murder.
The important question which needs determination is whether a man of 35 years of age could be said to have acted under the influence of his father? We are of the view that the doctrine of influence of elders is always considered a relevant factor and often constitutes mitigating circumstance qua tender age of the accused and due to immaturity of mind but the doctrine of influence could not be made applicable to a person who is about 35 years of age and is fully matured. There is no cavil to be proposition that the normal sentence in murder case is death and where the normal sentence of death is not to be awarded the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. In this regard we are fortified by the dictum laid down in Talib Hussain v. State 1995 SCM R 1776. The sentence of death which is normal sentence in murder case should not be altered on the basis of flimsy grounds. Reference in this regard can be made to Nuran v. Nura PLD 1975 SC 174. It was observed with grave concern by this Court in case Muhammad Sharif v. Muhammad Javed (PLD 1976 SC 452) as follows:-- "In an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. The impression is unavoidable that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.Rs,, the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subordination and above all the lingering trials or appeals all combine to help out the murderers of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus, indirectly contributing to the incidence of heineous crime of which the Courts cannot fully escape their share of responsibility."
(Emphasis supplied)
8. The case in hand has been examined on the touchstone of criterion as laid down and reproduced hereinabove and we are of the view that no extenuating or mitigating circumstances such as extreme youth, grave and sudden provocation or question of family honour are available and thus, the learned High Court was not justified in altering the sentence of death to that of life imprisonment simply on the ground that the murder was committed under the direction of father because admittedly the convict/respondent is neither a minor nor that of a tender age and thus, no benefit could be given to him on the pretext that the murder was committed at the direction of his father. We have not persuaded to agree with learned A.S.C. On behalf of the convict/respondent that the convict/respondent has already undergone the sentence awarded by the learned Appellate Court and accordingly at this belated stage the judgment of the trial Court could not be restored in view of the Doctrine of. Expectancy of life for the reason that "as regards the doctrine of expectancy of life, in view of the chronic delays in committal, trial and disposal of appeals as also the deliberate tactics of the convicts to delay the proceedings in order to escape the gallows there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v.
Muhammad Ali (1), Muhammad Khan v. Dost Muhammad (2) and Mst. Razia Begum v. Hijrayat Ali and 3 other (3) and the doctrine like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court". (Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; The State v. Rab Nawaz and another PLD 1974 SC 87; Abdus Sattar v. Muhammad Anwar and 6 others PLD 1974 SC 266; Asadullah v. Muhammad Ali and 5 others PLD 1971 SC 541 and Mst. Nuran v. Nura and another PLD 1975 SC 174. While discussing a similar proposition qua mitigating circumstances it was observed by this Court as follows:-- "It has to be kept in mind while considering 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 commits a cold-bloded 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 slap 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 case, 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 sentence. (Emphasis supplied). (Zafar v. State, 1999 SCM R 2028).
9. A similar proposition was also discussed in case Noor Muhammad v. State 1999 SCM R 2722 and it was observed as under:- "It may be observed that the normal sentence for an offence of murder is death sentence. This is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant imposition of lesser sentence namely imprisonment for life." It was further observed that--- "the people are losing faith in the dispensation of criminal justice by the ordinary Criminal Courts for the reason that they either acquit the accused person on technical grounds or take a lenient view in ' awarding sentence. It is high time that the Courts should realize that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to the commission of offences."
10. According to prosecution the murder has been committed under the influence/direction of father who was insulted by the deceased a few days beck prior to the occurrence. After having gone through the entire record we are of the considered opinion that such direction under the given circumstances does not constitute mitigating circumstances. It is worth-mentioning that an unarmed person who did his best to save himself from the clutches of convict/respondent was inflicted successive Churri blows on the vital parts of his body in a brutal and callous manner who succumbed to the injuries. No blanket authority for commission of brutal, gruesome and wanton murder can be granted to grown up and elderly persons under the garb of influence of elders including father as it would lead to drastic consequences and there would be no end to merciless killings. The convict/respondent admittedly was more than 35 years of age at the time of occurrence and accordingly does not deserve any clemency in the absence of any mitigating or extenuating circumstances which are not available in this case. There being no valid basis for such alteration, would, in our view, be one of a sad comment on the vagaries of the legal machinery and its working by the Court.
11. In the light of foregoing discussion we are inclined to accept Criminal Appeal No,65 of 1998 filed by Muhammad Ilyas and resultantly the order of learned trial Court, dated 5-1-1983 is upheld and the impugned judgment is accordingly set aside to the extent of Muhammad Sufian accused/appellant whereby the death sentence as awarded to him by the learned trial Court under section 302, P.P.C. After having found him guilty was altered to that of life imprisonment. The other Criminal Appeal No,66 of 1998 filed by Muhammad Sufian is hereby dismissed being devoid of merit.