QAZI MUHAMMAD FAROOQ, J.---This criminal appeal, by leave to the Court, has been filed from Jail by one Muhammad Sher alias Malang. It has arisen in the circumstances that on 7-11-1992 at about 7-00 p.m. One Muhammad Altaf, aged about 20 years, was gunned down in Village Khanqah Sirajia, District Mianwali. In the ensuing F.I.R. Which was lodged at Police Station Kundian by Allah Bakhsh, uncle of the deceased, the appellant was nominated as the accused.
2. The allegations made in the were to the effect that on the fateful day the complainant, Muhammad Altaf deceased, Muhammad Siddique and Ghulam Sarwar were returning from the house of Dost Muhammad after taking meals. When at about 7-00 p.m. Muhammad Altaf, who was a few steps ahead of his companions, reached near the gate of Jamia Masjid Nizamia Rizvia the appellant, who was standing there armed with a .12 bore shot gun and was identified in the light of an electric bulb, fired at him effectively after raising a Lalkara that he will teach him a lesson for not obeying his command to sever friendly relationship with his enemy Muhammad Bashir Talokar. The deceased in an injured condition was removed by his companions to the hospital where he was admitted for treatment.
3. The deceased expired in the hospital on 13-11-1992 and in due course the appellant was tried by the learned Sessions Judge, Mianwali who, vide judgment dated 30-11-1993, by placing implicit reliance on the ocular evidence, dying declaration of the deceased and corroborative evidence consisting of the motive and the medical evidence convicted him under section 302, P.P.C. And sentenced him to death and a fine of Rs,5,000 or two years' R.I. In default. The appellant was also directed to pay a sum of Rs,10,000 as compensation to the legal heirs of the deceased within the contemplation of section 544-A, Cr.P.C. The appeal filed by the appellant was dismissed by a learned Division Bench of the Lahore High Court, Lahore on 1-10-1998 in this manner that his conviction under section 302, P.P.C. Was upheld, the sentence of death was confirmed and the Murder Reference was answered in the affirmative but the sentence of fine was set aside being not imposable under the law and it was observed that he will suffer six months' S.I. In the event of failure to pay compensation to the legal heirs of the deceased.
4. Leave to appeal was sought by the appellant against the judgment of the Lahore High Court through a petition filed from jail but it was granted to the extent of the sentence only. Leave granting order is worded thus:-- "Learned counsel for the convict has confined his submissions to the question of sentence only. In this context learned counsel has submitted the following:--
(a) Motive is very weak and in any case in the dying declaration dated 8-11-1992, made by the deceased, no reference is made to the motive at all. It is pointed out by the learned counsel that according to prosecution case deceased was in his full senses at that time and through the incident of 7-11-1992 he died on 13-11-1992.
(b) In his statement under section 342, Cr.P.C. Recorded on 19-11-1993, the age of the petitioner is given as 65 years, but at present he is 71 years of age."
5. It was vehemently contended by the learned counsel for the appellant that a case for awarding lesser sentence was made out because; firstly, the motive having not been mentioned in the dying declaration of the deceased is to be treated as non-existent and, secondly, the age of the appellant was 65 years at the time of occurrence and at present he was 71 years of age. Reliance was placed on Muhammad Ibrahim v. The State 1979 PCr.LJ 275 and Abdul Hakim v. The State 1969 PCr.LJ 913 wherein the sentence of death was altered to imprisonment for life on the ground of old age of the convicts.
6. The contentions have not impressed us, therefore, we are not inclined to take a lenient view in the matter of sentence. The motive set up in the F.I.R. Stands fully established in the light of the prosecution evidence on which the unchallenged conviction of the appellant is based. The deceased was about 20 years of age at the time of occurrence. In view of the age of the deceased and the intriguing nature of the command of the appellant the motive has overtones of some kind of perversion though the prosecution evidence is silent in this respect. The omission of the motive from the dying declaration is thus understandable and cannot be blown out of proportion. Be that as it may, the prosecution case against the appellant stands proved beyond any reasonable doubt and there is no mitigating circumstance, therefore, weakness or strength of motive or its absence can have no bearing on the question of sentence. It is scarcely necessary to mention that motive is not an essential component of murder.
7. As regards the age factor, old-age by itself is not a mitigating circumstance for withholding the normal penalty for murder and imposing lesser sentence. The view gets support from Amir Gul v.
The State 1981 SCM R 182 wherein the contention that the accused being an old person of 70 years at the time of occurrence was entitled to benefit of lesser penalty of imprisonment for life had not prevailed. In the present case also the plea of lesser sentence having been based on old-age alone cannot prevail particularly when the murder committed by the appellant is gruesome and his diabolic conduct indicates that old-age has done no harm to him.
8. The case-law cited by the learned counsel for the appellant is distinguishable as in both the cases old-age alone had not served as a ground for awarding lesser penalty. In the case of Muhammad Ibrahim the accused was not only 70 years of age but was also suffering from tuberculosis and had failing health and in Abdul Hakim's case the accused was not only 60 years of age but had also fired at the deceased after an altercation and exchange of abuses. For the reasons given, the appeal is dismissed.