' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the Shariat Court, dated 8-3-2000 whereby the sentence of death awarded to respondent No,1 was converted into life imprisonment.
2. The brief facts of the case are that a F.I.R. Was lodged by one Ghulam Rasool at Police Station Bagh on 20-6-1991 alleging that he was present at his house alongwith Mst. Resham Begum, his wife, and Mst. Kishwar Begum, the victim of offence, his daughter-in-law, when he saw that Muhammad Arshad Khan, accused-respondent, Muhammad Sabir, his brother, and Faiz Rasool, their father, were going armed and abusing towards Mst. Rasheeda Begum wife of Muhammad Yanoob who was cutting grass in the jungle. When Mst. Kishwar Begum, his daughter-in-law and the daughter of Mst. Rasheeda Begum, cautioned her mother that the aforesaid accused persons were going towards her for killing her.. Muhammad Arshad, accused-respondent, fired at her with .12 bore gun which hit her at chest and resulted in her death instantaneously; thereafter, Muhammad Sabir, respondent, and Faiz Rasool, accused, also fired at him (complainant) but he saved his life by going into his house. A case was registered against Muhammad Arshad and Muhammad Sabir, respondents, and their father, Faiz Rasool, under section 5 of the Islamic Penal Laws Act read with section 34, A.P.C. The police, after investigation, challaned all the accused before the District Criminal Court. The trial Court, after completing the trial, convicted Muhammad Arshad, accused-respondent, and sentenced him to death whereas the co-accused Faiz Rasool and Muhammad Sabir, respondent, were acquitted. On appeal to the Shariat Court by Muhammad Arshad, accused-respondent, his conviction was maintained but his death sentence was changed to the imprisonment for life, i.e, fourteen years' imprisonment. The present appeal has been preferred seeking the restoration of the death penalty which was awarded to Muhammad Arshad, accused-respondent, by the District Criminal Court and also for the conviction of Muhammad Sabir, the absconding accused.
3. It may be stated at the very outset that the learned counsel for the appellant did not press the appeal against the acquittal of Muhammad Sabir, the absconding accused-respondent, whereas Faiz Rasool, accused, the father of the other two accused, has died. The only questions which need resolution in the instant case are as to whether the Shariat Court was legally justified in the circumstances of the case to set aside the sentence of capital punishment which was awarded to Muhammad Arshad, accused-respondent, and to extend the benefit of section 382-B, Cr.P.C. To him.
4. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, has argued that there must be strong reasons for not awarding normal penalty of death to an accused person. He has contended that in the present case, the respondent committed heinous crime; he fired at Mst.
Kishwar Begum merely because she cautioned her mother that the accused persons were proceeding towards her for killing her. He has contended that the reasons given by the Shariat Court for converting the death penalty into life imprisonment are not recognized by law. He has argued that the facts that the complainant, Ghulam Rasool, the husband of Mst. Resham Begum, P.W., did not put himself into the witness-box, the prosecution witnesses were related to the deceased and that the accused-respondent has been in judicial lock-up since year 1991 are not valid grounds for converting his death sentence into the imprisonment for life. The learned counsel has cited following authorities in support of his contentions:-- ' In a case reported as Muhammad Ramzan v. The State 1997 PCr.LJ 376, it was observed that the offence of murder was proved but two male witnesses necessary for awarding punishment of Qisas were not available and, thus, the sentence of Qisas was changed to death sentence under section 3 read with section 24 of the Islamic Penal Laws Act, 1974. It was observed that the mere fact that the convict was youthful offender was not accepted as a valid ground for awarding lesser punishment.
' In a case reported as Zahir Hussain Shah v. Shah Nawaz Khan 2000 SCR 123, the capital punishment was not awarded on the ground that the convict-respondent was not given capital punishment by the trial Court, two of the accused persons were acquitted and the prosecution witnesses were disbelieved with regard to the acquitted accused.
' In a case reported as Sardar Muhammad Khan v. Muhammad Afsar Khan 1991 PCr.LJ 508, it was observed that the appeal against the order of the District Criminal Court could be preferred not only by the State but also by a private person, irrespective of the fact whether the order was that of conviction or acquittal.
' In a case reported as Faiz Ali Shah v. The State PLD 1989 SC (AJ&K) 61, it was held that the doctrine of "expectancy of life" is not universal and, thus, the same cannot be pressed into service for lesser punishment in all cases.
' In a case reported as Muhammad Aslam v. The State 1993 SCR 199, it has been held that it may not be logical that in case of an offence of Tazeer only one of the sentences enumerated under section 15 of the Islamic Penal Laws Act, 1974 can be awarded because there is no provision to award more than one sentences; when the Court resorts to section 3 read with section 24 of the Act it is competent to award more than one sentences enumerated in the aforesaid provisions. It was observed that a Court of law is bound to interpret the statutory provision as it is and not as it should be; it cannot ignore the unambiguous meanings of a statutory provision and refuse to give effect to them because those do not appeal to reason.
' In a case reported as Mian Talib Hussain v. State 1992 SCR 120, it was observed that while calculating the period of imprisonment awarded to the appellant, the time spent by him in the police custody and jail till the announcement of the judgment by the trial Court shall be deducted from the period of imprisonment.
3. Raja Shiraz Kayani, Advocate-General, owned the arguments advanced by the counsel for the appellants.
6. In reply, Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the accused- respondent, has argued that in this case the three eyewitnesses produced by the prosecution are related to the deceased and were inimical to the accused persons. The learned counsel has contended that Ghulam Rasool, complainant, has not been produced by the prosecution; Mst.
Resham Begum is mother-in-law of the deceased; Mst. Rashdeeda Begum, P.W., is her mother while Mumtaz Hussain, P.W., is her brother. He has maintained that there was a dispute about Khalsa land between Muhammad Yaqoob, the father of the deceased, and Faiz Rasool, accused, and, thus, the statements of Mst. Rasheeda Begum, the mother of the deceased, and Mumtaz Hussain were not reliable; similarly, the statement of Mst. Resham Begum, her mother-in-law, also does not inspire confidence, especially so when relations between Muhammad Yaqoob, the husband of Mst. Resham Begum, P.W. And Faiz Rasool, accused, were strained. Thus, he has contended that the offence against the convict-respondent has not been proved beyond reasonable doubt, especially so when Ghulam Rasool, complainant, was not produced by the prosecution. He has also pointed out that the Shariat Court has discarded the recovery of weapon of offence which makes the prosecution case doubtful. Thus, according to the learned counsel for the respondents, the capital punishment could not be awarded to the accused-respondent on the uncorroborated testimony of the related and partisan witnesses. The learned counsel has submitted that the fact that the Shariat Court has converted the death penalty into sentence of life imprisonment has given expectancy of life to the accused-respondent is a good ground for not restoring the death penalty awarded by the District Criminal Court. He has cited following authorities in support of his contentions:-- ' In a case reported as Muhammad Bashir v. The State PLD 1982 SC 139, the death sentence was altered to one that of imprisonment for life on various grounds including the fact that the parents of the girl refused her marriage with the accused. Consequently, he was dejected and jolted lover when he committed the offence.
' In a case reported as Shabbir Ahmad v. The State 1997 PCr.LJ 1539, it was held that although the reasons advanced by the Courts below for not awarding capital punishment were not sustainable yet the fact that injury on Shabbir Ahmad, accused, was not explained satisfactorily gave rise to doubt that there has been some fight or altercation between the parties before the injuries were caused to the deceased. Thus, this Court declined to give capital punishment to the convict. As no order was passed for giving benefit of section 382-B, Cr.P.C. This Court also extended benefit of said provision to the accused-convict.
' In a case reported as Kh. Imtiaz Ahmad v. The State PLD 1988 SC (AJ&K) 134, it was observed that as the case was one of provocation and the offender was a young student, capital punishment was not warranted.
' In a case reported as Muhammad Hanif Khan v. The State 1983 PCr.LJ 225 the death sentence was changed in that of imprisonment for life under section 3 of the Islamic Penal Laws Act, on the grounds that the convict-accused was given life expectancy by the District Criminal Court and the case involved much delay in its disposal.
7. We have given due consideration to the arguments raised at the Bar It may be observed here that the accused-respondent has not come up in appeal against his conviction. It is only the complainant party who seeks the restoration of death penalty to the accused person. Therefore, the contention of the learned counsel for the respondent that the case against the accused- respondent is doubtful is not relevant for resolving the controversy in the instant case. The trial Court and the Shariat Court have relied upon the testimony of the prosecution witnesses and the accused-respondent has not come up in appeal against his conviction. Therefore, it is beyond the scope of this appeal to argue that the offence against the accused-respondent has not been proved. The question for resolution in the instant case is as to whether there was any mitigating circumstance in the case to change the sentence of death to that of life imprisonment. It may be observed that the mere facts that the accused-respondent has remained in the judicial lock-up since the year 1991 or that his death sentence was changed by the Shariat Court are no valid reasons for awarding him lesser punishment. Except the authority reported as Muhammad Hanif Khan v. The State 1983 PCr.LJ 225, the other auth )rities cited by the learned counsel for the parties have no relevant' to the proposition which needs resolution in the present case. It may be observed that there is a ring of authorities in support of the view that the protracted trial and "the expectancy of life" are not valid grounds for not awarding the accused normal penalty of death in a case of murder. A reference may be made to some of such authorities which are as below:--
(1) Intizam Hussain v. The Crown PLD 1951 FC 142, (2) Syed Kabir Hussain Shah v. The State PLD 1984 SC (AJ&K) 82, (3) Barkat Ali v. The State 1976 SCMR 368, (4) Mokha v. Zulfiqar PLD 1978 SC 10, (5) Kala Khan v. Misri Khan 1979 SCMR 347, (6) Siraj Din v. Nazar Hussain 1979 SCMR 364, (7) Razia Begum v.
Hijrayat Ali PLD 1976 SC 44, (8) Asadullah v. Muhammad Ali PLD 1971 SC 541, (9) The State v. Naseer Ahmed PLD 1986 SC (AJ&K) 35, (10) Kala v. The State PLD 1983 SC 88 and (11) Raheem Bakhsh v.
Abdul Subhan 1999 SCMR 1190.
' Thus, the contention of the learned counsel for the accused-respondent that the "protracted trial" or "the life expectancy" are good ground for not restoring the normal penalty of death is not tenable and is hereby repelled.
8. The next question which needs resolution is as to whether there was any other ground which justified the lesser punishment in the case. We have given our earnest thought to the circumstances of the present case and have come to the conclusion that there was hardly a strong motive for the convict-accused to take away the life of Mst. Kishwar Begum; the mere fact that she cautioned her mother that the accused-respondent and others were going to kill her and she should protect herself cannot be regarded as a strong motive. The trial Court has come to the conclusion that the motive for murder of Mst. Kishwar Begum was the dispute between Muhammad Yaqoob, the father of Mst. Kishwar Begum, deceased, and Faiz Rasool, the father of the accused-respondent, over the Khalsa land. Mst. Kishwar Begum is married and was putting with her in-laws; the dispute over land was not between Mst. Kishwar Begum and Faiz Rasool, the father of the accused-respondent. Thus, it is understandable that the accused persons were going to do some mischief to Mst. Rasheeda Begum, P.W., who was cutting grass from the disputed land but it is doubtful that the accused-respondent fired at and killed Mst. Kishwar Begum due to the dispute of the land between Muhammad Yaqoob, the father of the deceased, and Faiz Rasool. Thus, we are of the view that when Mst. Kishwar Begum cautioned her mother, as has been alleged by the prosecution, something more did occur, i.e,, such as exchange of hot words between Mst. Kishwar Begum and the accused-respondent which have been suppressed by the prosecution witnesses.
Besides, according to prosecution, the accused-respondent was going to prevent Mst. Rasheeda Begum from cutting the grass, and, thus, the murder of Mst. Kishwar Begum was not premeditated.
It cannot be conceived that when the accused-respondent went to Mst. Rasheeda Begum, he already knew that Mst. Kishwar Begum would intervene in the way by warning her mother as stated above. In other words, the incident which resulted in firing by the accused-respondent at Mst.
Kishwar Begum was the result of some altercation between the accused and the deceased at the spur of the moment and was not premeditated. Thus, the motive in the case to kill Mst. Kishwar Begum is not only weak but is indirect, as the dispute of the land was between Muhammad Yaqoob, the father of Mst. Kishwar Begum, deceased, and Faiz Rasool, accused. There is ample authority in support of the proposition that if murder committed is not premeditated and the motive is shrouded in mystery, the capital punishment is not awarded, especially so when the offender is teenager. A reference may be made to the following authorities:-- ' In a case reported as Rustam v. The State PLD 1971 Lah. 110 it was held that the question of benefit of reasonable doubt is relevant not only while deciding the question of guilt of the accused but also while considering the question of sentence, particularly in a murder case; because there is a wide difference between the two alternate sentences under section 302, P.P.C. The benefit of reasonable doubt in respect of the origin and immediate cause of occurrence is available to the accused regarding his sentence. It was observed that there was reasonable possibility of an altercation or quarrel between the two sides; the part played by either of the parties is shrouded in obscurity and the possibility of double motive for attack could not be excluded. It was held desirable to change the capital punishment to that of life imprisonment.
' In a case reported as Bashir Ahmad v. The State PLD 1970 Lah. 857, the accused person, while he was enticing away the wife of another person illegally, was asked by some private persons to accompany them to police station. The accused committed murder by firing revolver shots. It was observed that it could not be said that the murder was premeditated and, thus, sentence of death was changed to transportation for life.
' In a case reported as Habib v. Sarkar PLD 1966 (AJ&K) 42, the death sentence was changed to transportation for life because motive was not proved and origin of the fight was shrouded in mystery.
' In a case reported as Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747, no motive was alleged or proved for the commission of offence and, thus, the accused was not awarded death sentence. Consequently, the prayer for modification of the sentence by the High Court from imprisonment to that of death was rejected.
' In a case reported as Muhammad Azeem v. The State 1999 MLD 542, the motive of occurrence was not unveiled by the record and the incident was not result of premeditation and arranged affair.
Thus, the sentence of imprisonment for life awarded by the trial Court was not enhanced to that of death by the High Court.
' In a case reported as Muhammad Yaseen v. Muhammad Shafique 1997 SCMR 1527, the petition for leave to appeal for the enhancement of the sentence of life imprisonment to death was refused on the ground that motive was shrouded in mystery.
' In a case as Maqbool Ahmad v. The State 1984 PCr.LJ 1172, the convict-accused was of 17 years old and the prosecution failed to prove motive. Thus, the sentence of death awarded by the trial Court was substituted by the High Court for life imprisonment.
' In a case reported as Muhammad Akram v. The State 1995 PCr.LJ 704, the accused was 17 years old at the time of occurrence and the prosecution failed to prove the motive by direct evidence.
Thus, the sentence of death awarded to the accused was reduced to imprisonment for life.
9. Thus, we are of the opinion that instead of capital punishment, the punishment of sentence under section 3 read with section 24 of Islamic Penal Laws Act would meet the ends of justice. It may be observed here that punishment for life imprisonment is not provided under section 3 of the Islamic Penal Laws Act but the Shariat Court has proceeded under the wrong assumption that such a punishment can be awarded under the aforesaid provision. One of the punishments under section 3 of the Islamic Penal Laws Act is that of "imprisonment"; its limit has not been prescribed and has been left for the Court to determine it in the circumstances of the case. Therefore, under section 3 of the Islamic Penal Laws Act, 1974, sentence of imprisonment for life cannot be awarded.
Thus, we are of the opinion that in the present case, the sentence of 20 years imprisonment would meet the ends of justice.
10. The next question arises as to whether the accused is entitled to the benefit of section 382-B, Cr.P.C. Or in other words, whether the Court is bound to give him benefit of aforesaid section, irrespective of the circumstances of the case.The matter has been dealt with by this Court in some detail in an unreported case entitled Waris Hussain Shah v. Abid Hussain Shah Criminal Appeal No,16 of 1999, decided on 31-3-2000, wherein relying upon a case decided by the Supreme Court of Pakistan reported as Muhammad Aslam v. The State 1982 SCMR 709, which was followed by this Court in a case reported as Muhammad Akram v. Mst. Naseem Akhtar 1987 PCr.LJ 1728, it was observed that benefit of section 382-B, Cr.P.C. Is discretionary with the Court and the question of giving or refusing benefit depends upon the circumstances of each case. After discussing the matter, it was observed by this Court as under in paragraph 22 of the judgment:- ' "The survey of the above cases reveals that the Courts have generally deemed the extension of benefit of this provision as discretionary and not mandatory. If the circumstances of the case justify the extension of the benefit, the Court must, not otherwise. It is for the accused to prove that he is entitled to the benefit of this section, and a discretion of the Court to extend it or not, after considering the circumstances on which it is claimed by the accused. The Supreme Court of Pakistan has held the consideration of section 382-B as mandatory and not its application."
11. Thus, we do not agree with the contention of the learned counsel for the accused-respondent that the Court is bound to give benefit of section 382-B, Cr.P.C., to an accused person. After considering the circumstances of the case, we are of the view that the accused-respondent is not entitled to any benefit of the aforesaid provision and hence the Shariat Court was not justified to extend the same to him.
In the light of what has been stated above, we partly accept the appeal and enhance the sentence of the accused-respondent to 20 years rigorous imprisonment under section 3 of the Islamic Penal Laws Act, 1974; he shall not be entitled to the benefit of section 382-B, Cr.P.C.
Sentence enhanced.