1. ' MUHAMMAD AFZAL SOOMRO, J.--- Appellants Khan Muhammad and Taj Muhammad both sons of Moula Bux were charged and tried by the learned 1st Additional Sessions Judge, Khairpur in Sessions Case No,41 of 1990 Re: State v. Khan Muhammad and another vide F.I.R. No,100 of 1989 of Police Station Faiz Ganj. Both the appellants were convicted under section 302, P.P.C. Read with section 34, P.P.C. And were sentenced to death. They were directed to be hanged by neck till they are dead. The appellants were further directed to pay a fine of Rs,25,000 each and in default of payment of fine, they were further directed to undergo R.I. For three years more. The fine if realized be paid to the heirs of deceased as compensation. The learned Additional Sessions Judge had also made a reference for confirmation of death sentence awarded to them vide Confirmation Case No,5 of 1998 which is also before us for confirmation or otherwise.
2. ' The facts germane to the prosecution story are that on 23-2-1989 at about 12 noon as prosecution witnesses Ghulam Nabi and Usman were available at their lands and were busy in watering. The houses of Rind community are surrounded by their lands. It is alleged that Usman heard cries of "murder murder" from the houses of Rind community as a consequence whereof they rushed there and found accused Mohabat, Khan Muhammad and Taj Muhammad being armed with hatchets apd were giving hatchet blows to Ismail. He further disclosed that upon enquiry from the accused persons as to why they are extending hatchet blows to Ismail, the accused replied that they should keep away as they had come to kill Ismail, as he had been under suspicion for having illicit connections with Mst. Lal Khatoon. Usman came close to the door of convict Taj Muhammad and found Ismail lying outside bleeding from injuries. He had sustained hatchet injuries on neck, backside of arm and other parts of the body and succumbed to injuries on the spot. The appellants thereafter decamped from the scene of offence. Leaving Usman near/with the corpse of deceased Ismail, he went to inform complainant Ranjho Fakir who thereafter approached police station where he lodged F.I.R. As above. The investigation followed and in due course, the appellants alongwith co-accused Mohabat were sent up to stand trial in the Court of learned Sessions Judge, Khairpur.
3. ' Formal charge was framed against the appellants and deceased co-accused Mohabat, under section 302, P.P.C. Read with section 34, P.P.C. To which they pleaded not guilty and claimed to be tried.
4. ' The prosecution, in support of its case, examined complainant Ranjho Fakir Exh.11 who produced F.I.R. Exh.12, P.W. Ghulam Nabi Exh.13 who produced his statement under section 164, Cr.P.C. Exh.14, P.W. Muhammad Usman Exh.15 who produced his statement under section 164, Cr.P..C. Exh.P.16, P.W.
5. Allah Bux Mashir Exh.17 who produced Mashirnama of Vardat, inquest report, Mashirnama of recovery of cloths, Mashirnama of arrest of Taj Muhammad and Khan Muhammad, two separate Mashirnamas of recovery of hatchets and his statement under section 164, Cr.P.C. Exhs.18 to 24, A.S.-I. Khadim Hussain Exh.27 who produced receipt of dead body Exh.28. Dr. Bashir Ahmed Exh.29 who produced post-mortem report of the deceased Exh.30, S.D.P.O. Muhammad Yousif Exh.31 who produced report of Chemical Analyser Exh.32 and thereafter prosecution closed its side vide statement Exh.33.
6. ' During the pendency of trial proceedings, accused Mohabat expired. Consequently, process was issued and process-server W.H.C. Ali Sher was examined and thereafter proceedings against him were abated vide order dated 24-2-1998.
7. ' Both the appellants/accused were examined under section 342, Cr.P.C. In which they denied all the prosecution allegations levelled against them and pleaded innocence. The appellants neither examined themselves on oath in disproof of the charge nor examined any witness in their defence.
8. ' We have heard the arguments of Mr. Habibullah Shaikh learned counsel appearing on behalf of the appellants and Mr. Ghulam Dastagir A. Shahani, Additional Advocate-General appearing on behalf of the State and perused the record.
9. ' Learned counsel, appearing on behalf of the appellants at the very outset did not challenge the conviction but assailed the quantum of sentence awarded to the appellants. It has been contended by him that the material available on record shows that no background of enmity, or bad blood was involved. According to him the incident was a result of sudden flare-up involving family honour touching the female, which has always been considered as a mitigating circumstance for reduction of sentence. In this background, the learned counsel appearing on behalf of the appellants argues that it is a fit case where the sentence of death could be reduced to life imprisonment. He has relied on the cases of Muhammad Yousuf v. The State 1981 SCM R 422, Nazir Ahmad v. Muhammaduddin 1981 SCM R 415 and Muhammad Afzal v. The State 1987 SCM R 1864 in support of his contentions.
10. ' Learned Additional Advocate-General, Sindh concedes to the above legal position and raises no objection if the sentence of death is reduced to life imprisonment.
11. ' We have given our anxious consideration to the contentions of the learned counsel for the respective parties and perused the record which shows that no motive has been suggested in the F.I.R. Or statement of prosecution witnesses recorded at the trial and judgment pronounced. The perusal of the record reveals that above is a case involving family honour indicating no background of enmity. The record further reveals that alleged murder had taken place under the impulse of provocation. The doctrine of provocation has a long history of evolution at common law; it had been developed entirely by judicial decisions until the British Parliament first intervened by passing the Homicide Act, 1957:-- "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of control whereby malice, which is the formation of an intentionto kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the act of adultery. This has always been treated as an exception to the general rules.
12. Necessary self-defence, or action taken in the necessary defence, for example, of wife or child from outrage or maltreatment, stand apart, as in such cases there is no crime at all committed."
13. ' Viscount Simon in Holmes (1946) AC 588 ' These observations in Holmes were commented upon in Lee Chun Chuen (1963) AC 220 as follows:-- "It is plain that Viscount Simon must have meant the word `actual' to have a limitation effect and that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally incompatible with manslaughter because that would eliminate provocation as a line of defence." ' and the following statement of law by Lord Goddard in Kumarsinghege Don John Perera (1953) AC 200 was re-affirmed:-- ' "The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received."
14. ' It was added: "Their Lordships do not think it necessary to interpret the dictum any further than to say that it cannot be read as meaning that the proof of any sort of intention to kill negatives provocation, Lord Simon was evidently concerning himself with the theoretical relationship of provocation to malice and in particular with the notion that where there is malice there is murder; and he may have it in mind that actual intent in the sense of premeditation must generally negative provocation "
15. ' Provocation in law consists mainly of three elements; the act of provocation, the loss of self- control, both actual and reasonable and the retaliation proportionate to the provocation. Their relationship to each other, particularly in point of time, whether there was time for passion to cool, is of the first importance. The point to emphasis is that provocation in law means more than a provocative incident. (Lord Devlin in Lee Chun Chuen (1963) AC 220, 231, 232)
16. ' The law, it has been said, is not concerned with the brain but with the "mind", in the sense that mind, is ordinarily used, the mental faculties of reason, memory and understanding. Devlin, J. In R.V.
17. Kemp (1957) WB 399. Therefore: ' "It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control as the result of which he commits the unlawful act which causes death. In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind. (Stephen's Digest of the Criminal Law, Art.317) Mancini v.
18. Director of Public Prosecutions (1942) AC 1)."
19. ' The rationale of the doctrine of provocation, then, is that `homicide is owing to a sudden transport of passion, which, through the benignity of the law, is imputed to human infirmity". (Sir Michael Forster; also cited by Lord Diplock in R. v. Camplin (1978) AC 705, where the doctrine was ascribed to law's compassion to human infirmity). Explaining the doctrine, J.W.C. Turner said in his essay: "The Mental Element in Crimes at Common Law" in the Modern Approach to Criminal Law: ' "....We have to consider the mental state of the wrong-doer, not in relation to mens rea (for the blow he struck was voluntary, F and he intended to kill by means of it), but in relation to the criminality of the actus itself."
20. ' It is for this reason that if the wrong-doer had sufficient time "for the blood to cool and the reason to resume its seat", provocation, however, grave was not treated as an excuse. The Principles and Practice of the Criminal Law by Seymour F. Harris (15th Edition) at pp.201, 202.
21. ' It would be advantageous to refer to section 302, punishment of Qatal-i-Amd:-- "302. Punishment of Oatal-e-Amad.--- Whoever commits Qatal-eAmd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
22. ' The perusal of section 302, P.P.C. Makes it abundantly clear that eventually the case would fall in exception "C", in view of the facts and circumstances. The gist of the cases referred by the learned counsel for the appellant is to the extent that in the case of Muhammad Yunus (supra) an appeal was filed against the judgment and order dated 2-5-1974 passed by the Lahore High Court reducing the death sentence of Karam Khan respondent, to that of imprisonment for life. The occurrence in this case took place on 13-7-1971 when the Law Reforms Ordinance, 1972, had not yet been enforced. As such, at the relevant time the accused could be awarded only transportation for life. According to section 57 of the Penal Code, as it stood prior to its amendment by the Law Reforms Ordinance, 1972, the sentence of transportation for life was to be reckoned as equivalent to imprisonment for 20 years. By the said amendment in section 57, P.P.C. Sentence of imprisonment for life was substituted for transportation for life and is to be reckoned as equivalent to 25 years imprisonment. Law Reforms Ordinance came into force on 14-4-1972 and it does not contain any provision for its application retrospectively. Moreover, Article 12 of the 1973 Constitution protects a person against retrospective punishment as it provides that no law shall authorize the punishment of a person for an offence by a penalty greater than the penalty prescribed by law for that offence at the time when the offence was committed. It was held that accused could be awarded only transportation for life and not imprisonment for life.
23. ' In the case of Nazir Ahmed (supra) while accepting the appeal the Honourable Supreme Court set aside the acquittal of the respondents on charges under section 302/149, P.P.C. On two counts as recorded by the Lahore High Court and restored the convictions as recorded by the trial Court with the exception of converting the death sentence to that of life imprisonment awarded to two of the appellants namely Muhammad Din and Nazira. It was held that motive for murder being attempt to vindicate family honour involving female closely related to all accused, imposition of death sentence not called for and sentence of life imprisonment would suffice in the circumstances of the case.
24. ' In the case of Muhammad Afzal leave to appeal was refused by the Honourable Supreme Court for enhancement of sentence awarded to the respondent relying upon the fact that it was prosecution's own showing that respondent had killed deceased in order to rehabilitate his family honour who was awarded death sentence by the Sessions Judge, Sahiwal of an offence under section 302, P.P.C. For causing the death of Khurshid deceased and was sentenced to suffer death and to pay a fine of Rs,10,000 and was also directed to pay another sum of Rs,10,000 by way of compensation to the legal heir of the deceased. The Lahore High Court upheld this conviction for the offence under section 302, P.P.C. But reduced his sentence to imprisonment for life.
25. ' While taking into consideration the quantum of sentence and defence by the learned counsel for the appellants, we notice that there was no previous background of animosity between the parties.
26. The trouble started with the exchange of harsh words over the involvement of family honour, which ultimately took a serious turn. Undoubtedly the occurrence took place on being loss of self-control to pocket or bear the insult, taking extreme step in order to take revenge from the deceased.
27. Touching character of female from the family of appellants compelled them out of sheer sense of vindication, self-respect and family honour to commit murder, earning advantage of lesser penalty. We are accordingly not consie ring it a case of capital punishment while maintaining the conviction of the appellants under section 302, P.P.C. And alter their sentence of death into life imprisonment with benefit of section 382-B, Cr.P.C. The sentence of fine however, has been maintained. In default of payment of fine, the appellants shall undergo R.I. For three years more.
28. The amount of fine if realized shall be paid as compensation to the legal heirs of deceased.
29. ' The appeal is dismissed in the above terms and murder reference is answered accordingly.
30. (Sd.) Muhammad Afzal Soomro, Judge.
31. ' S. AHMED SARWANA, J.--- 1. I have gone through the judgment proposed to be delivered by my learned brother Muhammad Afzal Soomro, J. And I regret I cannot subscribe to his views on the legal question involved in respect of the sentence and, therefore, am constrained to differ with the same.
2. The brief facts relevant for the purpose of disposal of the two appeals are that on 23-12-1989 Ranjho Faquir lodged F.I.R. No,100 of 1989 with Police Station Faiz Ganj, District Khairpur wherein he stated that his nephew Muhammad Ismail (deceased) used to graze goats in the jungle alongwith Taj Muhammad (accused) and on that day at about 10 a.m. Ismail was taken by Taj Muhammad on the pretext of grazing the goats. He added that while he was present in his house at about 1-00 p.m. His son Ghulam Nabi came running in the house and informed him that while he was standing on his land near the houses of the accused for rotation of water alongwith one Muhammad Usman Chang, whose house is situated along the house of Taj Muhammad Rind, at 12 noon they heard cries of "murder murder" from the house of Taj Muhammad Rind on which they went running and saw Taj Muhammad and Khan Muhammad both sons of Moula Bakhsh and Muhabat son of Nawab, all by caste-Rind, were causing hatchet blows to Muhammad Ismail outside their house.
32. Both of them gave Hakals on which the three accused persons disclosed that Ismail had been killed as he was "Karo" with Mst. Lal Khatoon. After receiving injuries Muhammad Ismail fell down and the accused persons went away. The two persons saw that Muhammad Ismail was dead and leaving Usman near the dead body, Ghulam Nabi came to his father to give him the news. The complainant and Ghulam Nabi went to the house of Taj Muhammad Rind where they saw the dead body of Muhammad Ismail lying in front of the house of Taj Muhammad Rind. He saw that deceased Ismail had received injuries on his head, neck, and elbow of the left arm and on other parts of the body. Leaving the aforesaid two witnesses at the scene, the complainant went to the Nekmard Rehmatullah Khan Chang for apprising him the facts and as he was not available he came to the police station to lodge the F.I.R. On the advice of Abdul Razzak, son of the Nekmard.
3. After due investigation, the appellants/accused alongwith Muhabat Khan co-accused were sent up for trial for the murder of Ismail under section 302 read with section 34, P.P.C. During the course of the proceedings Muhabat Khan expired and after due formalities the case proceeded against accused Khan Muhammad and Taj Muhammad. After the prosecution completed their evidence they closed their side and the appellants were examined under section 342, Cr.P.C. They denied all the allegations levelled against them and pleaded not guilty to the charge. They neither examined themselves on oath nor produced any witness in their defence. The learned Sessions Judge, Khairpur found them guilty of the charge, convicted them under section 302 read with section 34, P.P.C. And sentenced each of them to death by hanging and fine of Rs,25,000 each and in default of payment to undergo R.I. For three years each.
4. Mr. Habibullah Shaikh, learned counsel appearing on behalf of the appellants did not challenge the conviction but assailed the quantum of sentence awarded to the appellants. He contended that the material available on record did not show any background of enmity, or bad blood between the parties. He added that no motive had been stated in the F.I.R. The evidence of the prosecution witnesses in the trial or by the Court in its judgment. He urged that the incident was a result of provocation involving family honour relating to the female members of the family of the appellants which ground has always been considered as a mitigating circumstance for reduction of sentence. He vehemently urged that it was a fit case in which death sentence should be reduced to life imprisonment. In support of his contention, he referred to the cases of (1) Muhammad Yunus v. The State 1981 SCM R 422, (2) Nazir Ahmed v. Muhammaduddin 1981 SCM R 415, and (3)
33. Muhammad Afzal v. The State 1987 SCM R 1864.
5. Mr. Ghulam Dastagir Shahani, learned Additional Advocate-General, Sindh, agreed with the arguments advanced by Mr. Shaikh and stated that he had no objection if the sentence of death was reduced to life imprisonment.
6. I have considered the arguments advanced by Mr. Habibullah Shaikh for reduction of the sentence, perused the record carefully and researched the law relating to murder and punishment prescribed therefor.
7. The incident of murder took place on 23-12-1989 which was prior to Criminal Law (Second Amendment) Ordinance, 1990 whereby several sections including sections 299 to 338 of the Pakistan Penal Code, 1860, were deleted and provisions relating to Qisas and Diyat etc. Based on Shariah were incorporated. This case will, therefore, has to be considered and decided under the provisions of Pakistan Penal Code, 1860, as it stood on the date of the occurrence of the crime.
8. Section 300, Pakistan Penal Code, 1860, as originally enacted, defines various situations where culpable homicide amounts to murder subject to several exceptions. According to exception I culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of a person who gave the provocation. Mr. Shaikh has not denied the fact of murder but has taken the plea that the death of Muhammad Ismail was the result of sudden provocation to defend their family honour as Ismail was suspected to be on illicit terms with Mst. Lal Khatoon. According to Mr. Shaikh, killing of a person to defend one's family honour is a sufficient ground for reduction of the sentence to life imprisonment. At this juncture it would be appropriate to refer to Article 117 of Qanun-e-Shahadat according to which whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Article 121 of Qanun-eShahadat further provides that wheft a person is accused of any offence the burden of proving the existence of circumstances bringing his case within the general exceptions in the Pakistan Penal Code or within any special exception or proviso in any law defining the offence, is upon him, and the Court shall presume absence of such circumstances. When specific provision is available in Qanun-e- Shahadat, the same will apply in this case (Abdul Haque v. The State PLD 1996 SC 1). The factum of murder having been proved, the burden for bringing their case within the special exception for a lenient view in the sentence was upon the appellants who should have proved that whilst deprived of the power of self-control by grave and sudden provocation they caused the death of Ismail who gave the provocation. The appellants neither produced any evidence to prove that the deceased did any act or conducted himself in any particular manner or was found in such a compromising position which suddenly provoked the appellants to cause his death nor is there any evidence on record or circumstances which indicates that the appellants were deprived of the power of self- control by grave and sudden provocation caused by Ismail, the deceased. According to the evidence of the eye-witnesses, Ghulam Nabi and Muhammad Usman, when they reached near the houses of Rinds, they saw the appellants giving hatchet blows to Ismail and when they inquired from them as to why they were giving hatchet blows. The appellants warned them not to come near else they would kill them. According to Ghulam Nabi, they told them that Ismail was being murdered as he was suspected by them to be on illicit terms with Mst. Lal Khatoon while according to the other eye-witness Usman, the appellants said that he was murdered under doubt that he was Karo with Mst. Lal Khatoon who was the wife of one of the killers. The statements of the two witnesses of what they heard neither proves the existence of illicit connection between the deceased and Mst. Lal Khatoon nor any act leading to any suspicion or doubt was mentioned. Mere suspicion or doubt expressed by the appellants can hardly lead to any grave and sudden provocation which could have deprived the accused of the power of self-control without any overt act on the part of the deceased or connected with any suspicion or doubt. The burden of proof having shifted on the appellants, they should have adduced evidence of fact or circumstance to lay the foundation of suspicion or doubt which suddenly provoked them gravely to murder Ismail.
34. They neither examined themselves nor produced any witness. If simple utterances of doubt of illicit relationship by one person killing another are taken as evidence of suspicion depriving a person of the power of self-control to justify lesser punishment, it would provide a very convenient tool to avoid the punishment of death for premeditated murder by loudly uttering or shouting the words within the hearing distance of witnesses while murdering a person that "I am killing this person as I suspect him or he is suspected of having illicit relations with so and so". This easy method of avoiding death sentence is patently mala fide, unjustified and inhumane and must be strongly deprecated and rejected outright. The practice of taking the law in their hands by citizens is becoming increasingly common these days. Thousands of innocent people are being killed every year in the name of family honour on the flimsy ground of suspicion of "Karo/Kari". Islamic Law under any Fiqah does not permit any citizen to take the law into his own hands and obligates the State to protect the life and liberty of every, citizen and severely punish the person who does so.
35. Acceptance of the ground of mere suspicion of illicit relation (Karo/Kari) to kill, would amount to giving to the members of the society an unfettered licence to kill any person they dislike, abhor, hate or who have annoyed them in any way and while doing so loudly utter that the person killed or being killed is suspected of illicit relations with a member of the killer's family and thereby avoid the death penalty. This uncivilized, barbaric and abominable practice must be stopped immediately before it gets out of hand and creates total anarchy in society.
9. Mr. Shaikh, learned counsel for the appellants, also contended that neither motive, nor enmity between the parties have been stated in the F.I.R. Nor proved in the trial which support the submission of the appellants. It is well-established that "proof of motive or previous ill will is not necessary to sustain conviction for murder in a case where a person is coolly and barbarously put to death or when the offender is caught red-handed. Where the fact or murder has been clearly established, it is by no means incumbent on the prosecution to show what particular motive actuated the criminal's mind and induced him to commit the particular crime". (Aftab Iqbal v.
36. Manzoor Ahmed 1985 SCM R 269). In the instant case, the appellants have admitted the fact of murder, it is, therefore, not necessary to prove any motive, or enmity. The bare taking of the plea of vindicating family honour does not lay the foundation for taking a lenient view to reduce the death sentence to life imprisonment. The appellants should have produced evidence to support their plea to bring their case within the exception which they did not do. The argument of the learned counsel does not help the appellants' case at all.
10. The three cases cited by Mr. Shaikh are distinguishable on facts and, therefore, cannot be applied to the circumstances of the present case. In the case of Muhammad Younus 1981 SCM R 422 the Honourable Supreme Court upheld the reduction of death penalty to imprisonment for life stating that the motive for the murder involved the question of honour of the wife of the accused.
37. All the facts of the case are not stated in the judgment but it appears that evidence of the fact of vindicating the family honour was brought on record by the accused. In the case of Nazeer Ahmad 1981 SCM R 415 both the prosecution and the accused recorded their evidence on the basis of which the Court came to the conclusion that it was a case where the deceased was killed to vindicate the family honour involving the family closely related to all the accused. Again, the order of the Honourable Supreme Court in the case of Muhammad Afzal 1987 SCM R 1864 does not state all the facts of the case; however, it appears that in this case also there was sufficient evidence available on the record to observe that the deceased had been killed to rehabilitate family honour. In the instant case, there is no evidence whatsoever of any established fact proved in accordance with the provisions of Qanun-eShahadat that the murder of Ismail was committed to vindicate the family honour of the appellants. The observations in none of the aforesaid cases are applicable to the circumstances of the present case. Every case has to be decided on its particular facts arid circumstances which the learned Sessions Judge has done in the present case.
11. In view of the .Above discussion, the appellants have failed to make out a case for reduction of the sentence. In my humble opinion, the sentence of death awarded by the learned Sessions Judge is in accordance with law and circumstances of the case. Consequently, the sentence in Criminal Reference is confirmed and the jail appeal filed by the appellant is dismissed.
38. (Sd.) S. Ahmed Sarwana, Judge.
39. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This case has been referred to me on account of difference of opinion between my learned brothers Mr. Justice S. Ahmed Sarwana and Mr. Justice Muhammad Afzal Soomro, on the point of sentence to be awarded to the appellants.
40. ' Both the appellants have been convicted by the learned trial Court for the offence punishable under section 302 read with section 34, P.P.C. And have been sentenced to death, with direction to be hanged till they are dead. Both the appellants have preferred jail appeal, assailing their conviction and sentence. The learned trial Court has also made reference under section 374, Cr.P.C.
41. For the confirmation of the death sentence awarded to the appellants.
42. ' At the time of arguments before the learned Division Bench, the learned counsel for the appellants did not challenge the conviction but merely assailed the quantum of sentence awarded to the appellants. Learned counsel for the appellants contended that the incident involved the family honour and consequently it provides mitigating and extenuating circumstances warranting the conversion of death sentence into life imprisonment. The learned Additional Advocate-General conceded that it was a fit case for conversion of death sentence into life imprisonment. My learned brother Mr. Justice Muhammad Afzal Soomro accepted the contention and, therefore, altered the sentence of death into life imprisonment. On the other hand, my learned brother Mr. Justice S.A.
43. Sarwana held that the appellants have failed to make out a case for reduction of their sentence. He consequently, confirmed the death sentence awarded by learned trial Court, accepted the Reference in this behalf and dismissed the appeals filed by the appellants.
44. ' I have heard Mr. Habibullah Shaikh, alongwith Mr. Saifuddin Shah, learned counsel for the appellants and Mr. Ghulam Dastagir Shahani, learned Additional Advocate-General.
45. ' Mr. Habibullah Shaikh, learned counsel for the appellants has submitted that motive in this case is shrouded in mystery. According to him, no motive has been alleged by the prosecution, there is no enmity, no and no annoyance. The deceased Muhammad Ismail was Chand by caste and the accused persons are Rind by caste. Learned counsel has contended that the place of incident is situated near the outer gate of the house of accused Taj Muhammad. The prosecution case is that deceased Muhammad Ismail used to graze goats in jungle alongwith accused Taj Muhammad and on the day of incident at about 10-00 a.m. Deceased Muhammad Ismail was taken away by accused Taj Muhammad on the pretext of grazing the goats. He has pointed out that according to F.I.R. Exh.11, lodged by Ranjho Faqir, the accused persons expressed at the time of committing murder of deceased Muhammad Ismail that he is being killed as he was "Karo" with Mst. Lal Khatoon. Learned counsel for the appellants has conceded that there is no evidence on the record that deceased Muhammad Ismail was found in company of Mst. Lal Khatoon or was found hovering near her or acted in any objectionable with reference to Mst. Lal 'Khatoon, but there is possibility that the deceased may, by grazing goats had gone to the house of Taj Muhammad and accused, who were suspecting him to be on illicit terms with Mst. Lal Khatoon followed him. He has conceded that no such plea was taken by the accused persons in their statements under section 342, Cr.P.C. Or in cross-examination to the prosecution witnesses. The defence plea, throughout the trial, was of denial of commission of incident and total innocence. He has conceded that it is the duty of defence to bring mitigating circumstance on record, which is totally lacking. He has however, submitted that in pursuance of the principle of safe administration of justice, the Court may infer the mitigating circumstances from the evidence on record, even though the defence has failed to discharge the burden and has failed to bring any material on record and has even failed to take such plea in the trial Court. The sole contention of leaned counsel for the appellants is that the eye-witnesses P.W.2 Ghulam Nabi and P.W.3 Muhammad Usman have deposed that accused persons disclosed to them that deceased Muhammad Ismail was murdered on account of suspicion of having illicit terms with Mst. Lal Khatoon wife of accused Khan Muhammad and was, therefore, a "Karo". Learned counsel for the appellants has frankly stated that there is nothing on record to suggest that any act was done by the deceased, which may cause sudden provocation and has further stated that he had never taken the plea of sudden provocation before the learned Members of the Division Bench. He has urged that it is a case of grave provocation only and not a case of grave and sudden provocation as dilated upon in great deal by his Lordship S.A. Sarwana, J and to some extent by his Lordship Muhammad Afzal Soomro, J. As well. He has further conceded that the incident took place in the year 1989 and section 302, P.P.C. Was amended in the year 1990, therefore, the law as it stood at the time of incident i,e, 23-12-1989 was applicable, as observed by S.A. Sarwana, J. He has further conceded that Mr. Justice Muhammad Afzal Soomro was not justified in considering the amended section 302, P.P.C. As law was not amended with retrospective effect. The learned counsel has further maintained that if his plea would have been of grave and sudden provocation he would have claimed the exception provided in the law and could have taken the plea that the conviction be converted to section 304, P.P.C. Which was not done. He has forcefully argued that Mr. Justice S.A. Sarwana has not correctly appreciated his contention and has considered a plea which was never raised. In short, he has argued with emphasis that he had never taken plea that provocation was sudden but his contention was that it was only grave as it was a case of family honour and commission of murder under the impulse of "Ghairat" has always been treated as mitigating circumstance. Learned counsel for the appellants has submitted that every person is supposed to be "Ba-Ghairat" and not "Bay-Ghairat", and, therefore, the accused persons committed murder of deceased Muhammad Ismail out of "Ghairat" having suspicion of illicit relation between deceased and Mst. Lal Khatoon wife of accused Khan Muhammad.
46. According' to him, Mr. Justice Muhammad Afzal Soomro has rightly treated this circumstance to be mitigating and extenuating factor, warranting conversion of death sentence into life imprisonment.
47. Learned counsel for the appellants was asked, whether mere suspicion of illicit intimacy between a male and female, howsoever unfounded and baseless it may be, shall provide justification for awarding lesser punishment for murder. The learned counsel was not in a position to give any reply to the query. Learned counsel for the appellants was further asked, if there was any judgment by the Honourable Supreme Court or any High Court to the effect that, mere expression of suspicion of illicit terms was sufficient to be treated, as mitigating circumstance for awarding lesser punishment on account of commission of murder out of "Ghairat", family honour or onaccount of suspicion of illicit terms with a female member of the-family or for outraging the modesty or honour of the family member, to which he required that, to his knowledge there is no judgment on the point that mere expressing of suspicion, howsoever, unreal and unfounded it may be, provides a mitigating circumstance for awarding lesser punishment. The learned counsel was asked if the accused persons had at any time prior to the commission of murder had expressed their annoyance or grievance against the deceased or had at any time, complained to any one of suspicion or had found the deceased Muhammad Ismail in any suspicious circumstances with Mst.
48. Lal Khatoon wife of accused Khan Muhammad, to which the learned counsel candidly replied in negative. He has stated that there is nothing on record in this behalf and the accused persons have not made any suggestion to any prosecution witnesses in this regard and has not taken any such plea in their statement under section 342, Cr.P.C. And that, throughout the trial, the plea of accused persons was of the false implication on account of a dispute and the accused, throughout pleaded complete innocence. He has conceded that the sole material on record in support of the suspicion of illicit terms between deceased Muhammad Ismail and Mst. Lal Khatoon wife of accused Khan Muhammad is of such expression at the time of commission of murder when P.Ws. Ghulam Nabi and Usman challenged them not to commit murder.
49. ' In support of his contention, that, when motive is shrouded in mystery and it is not known as to what transpired immediately before commission of murder, coupled with the fact that from the material on record inference can be drawn that the murder was committed on account of "Ghairat", family honour and suspicion of the deceased being on illicit terms with a female Member of the family, death sentence is not warrated and the life imprisonment shall be in consonance with the principle of safe administration of justice, the learned counsel for the appellants has placed reliance on the following judgments:--
(1) Said Amir Shah v. The State 1969 PCr.LJ 1589, (2) Muhammad Yunus v. The State 1981 SCM R 422,
(3) Nazir Ahmed v. Muhammad Din and others 1981 SCM R 415, (4) Matiur Rehman and another v.
50. The State and others 1985 SCM R 489, (5) Muhammad Afzal v. The State and another 1987 SCM R 1864, (6) Abdul Rashid v. The State 1989 SCM R 165, (7) Zafar Ali v. The State 1990 SCM R 595, (8)
51. Ghulam Abbas v. Mazher Abbas and another PLD 1991 SC 1059, (9) Muhammad Ashraf Khan Tareen v. The State and another 1996 SCM R 1747, (10) Naubahar v. The State 1999 SCM R 637, (11)
52. Muhammad Yaqoob alias Qooba v. The State. 1999 SCM R 1138, (12) Imran Ashraf and 7 others v. The State 2001 SCM R 424.
53. ' Mr. Ghulam Dastagir Shahani, learned Additional Advocate-General was asked to give the reasons for conceding that it is a fit case for conversion -of death sentence into the life imprisonment. The learned Additional Advocate-General stated that it was a case of commission of murder on account of "Ghairat" and, therefore, he had conceded for the grant of lesser punishment. However, when asked to show the material on record justifying the suspicion that deceased Muhammad Ismail was on illicit terms with. Mst. Lal Khatoon wife of accused Khan Muhammad, the learned Additional Advocate-General stated that there was no such material available on record. He has also referred to the testimony of the P.Ws., Ghulam Nabi and Usman, that while committing murder the accused persons told the witnesses, that the deceased was "Karo" and was being killed such. When asked whether mere declaration of the male or female as "Karo/Kari" or suspecting of any male or female to be on illicit terms without any iota of material in support of suspicion should be treated as mitigating circumstance for awarding lesser punishment, the learned Additional Advocate-General had no reply at all. He was asked whether mere declaring a male or female as Karo/Kari while committing the murder, or mere shouting that person being murdered was "Karo/Kari", would not amount to give a licence to take away life of a person without fear of being awarded death sentence. The learned Additional Advocate-General had no answer at all. He, however, conceded that except shouting of accused persons that deceased was being killed as Karo having been suspected to be on illicit terms with Mst. Lal Khatoon there is no other ocular or circumstantial evidence/material in support of the suspicion.
54. He has further conceded that the accused persons themselves gave up the plea, during the investigation as well as trial and never took the plea that the deceased was killed out of "Ghairat".
55. ' Before I proceed to consider the issue referred to me and the pleas raised before, I would like to reproduce the exact version of the eye-witnesses forming basis for the plea of commission of murder on "Ghairat", for the first time, In appeal as a plea of mitigating circumstance.
56. ' Complainant Ranjho Faqir is not an eye-witness of the incident. He has stated that his nephew deceased Muhammad Ismail used to graze goats alongwith Taj Muhammad and on the day of incident at about 9-00 or 10-00 a.m. Taj Muhammad came at the house of deceased Muhammad Ismail and took him away. At about 12-00 noon his son P.W. Ghulam Nabi came and informed that he was watering the land alongwith P.W. Usman when they heard cries of "murder" "murder" from the house of accused. He was further informed that Ghulam Nabi and Usman approached the accused persons, who were giving hatchet blows to deceased Muhammad Ismail. The accused persons declared at that time, deceased as "Karo". Complainant stated in his examination-in-chief that accused were suspecting Mst. Lal .Khatoon wife of accused Khan Muhammad as "Kari" with deceased Muhammad Ismail, hence the incident.
57. ' P.W.2 Ghulam Nabi has stated that when inquired from the accused persons as to why they were giving hatchet blows to deceased Muhammad Ismail they told that Muhammad Ismail was being murdered, as he was suspected by them to he on illicit terms with Mst. Lal Khatoon.
58. ' P.W.3 Muhammad Usman has also stated that the accused persons disclosed, that deceased Muhammad Ismail was murdered under doubt that he was Karo with Mst. Lal Khatoon wife of accused Khan Muhammad.
59. ' Now I advert to the opinion recorded by the learned Members of the Division Bench. Muhammad Afzal Soomro, J., while narrating the contention of the learned counsel for the appellants has observed as follows:-- "According to him the incident was a result of sudden flare-up involving family honour touching the female, which has always been considered as a mitigating circumstance for reduction of sentence. In this background, the learned counsel appearing on behalf of the appellants argues that it is a fit case where the sentence of death could be reduced to life imprisonment."
60. ' He has further observed that:-- "The record further reveals that alleged murder had taken place under the impulse of provocation."
61. ' After considering the facts, as narrated above, he dilated upon the concept of provocation and its effect as prevailing in the common law of England. Muhammad Afzal Soomro, J. Held as follows:-- "While taking into consideration the quantum of sentence and defence by the learned counsel for the appellants, we notice that there was no previous background of animosity between the parties.
62. The trouble started with the exchange of harsh words over the involvement of family honour, which ultimately took a serious turn. Undoubtedly the occurrence took place on being loss of self-control to pocket or bear the insult, taking extreme step in order to take revenge from the deceased.
63. Touching character of female from the family of appellants compelled them out of sheer sense of vindication, self-respect and family honour to commit murder, earning advantage of lesser penalty. We are accordingly not considering it a case of capital punishment while maintaining the conviction of the appellants under section 302, P.P.C. And alter their sentence of death into life imprisonment with benefit of section 382-B, Cr.P.C."
64. ' On the other hand, S.A. Sarwana, J. Narrated the contention of the learned counsel as follows:-- "He urged that the incident was a result of provocation involving family honour relating to the female members of the family of the appellants which ground has always been considered as a mitigating circumstance for reduction of sentence. He vehemently urged that it was a fit case in which death sentence should be reduced to life imprisonment."
65. ' Mr. S.A. Sarwana, J., after observing that the incident took place on 23-12-1989 and section 302 was amended in the year 1990, held that the relevant law for consideration was the unamended section 302, P.P.C. He then considered the provision contained in unamended section 300, P.P.C. And observed that:-- "Mr. Shaikh has not denied the fact of murder but has taken the plea that the death of Muhammad Ismail was the result of sudden provocation to defend their family honour as Ismail was suspected to be on illicit terms with Mst. Lal Khatoon. According to Mr. Shaikh, killing of a person to defend one's family honour is a sufficient ground for reduction of the sentence to life imprisonment."
66. ' He has further observed that, "burden was on the appellants to prove that whilst deprived of the power of self-control by grave and sudden provocation they caused the death of Ismail, who gave provocation."
67. ' He next observed that:-- "The appellants neither produced any evidence to prove that the deceased did any act or conducted himself in any particular manner or was found in such a compromising position which suddenly provoked the appellants to cause his death nor is there any evidence on record or circumstances which indicates that the appellants were deprived of the power of self-control by grave and sudden provocation caused by Ismail, the deceased."
68. ' S.A. Sarwana, J., after considering the deposition of P.Ws. Ghulam Nabi and Ismail held as follows:- - ' The statements of the two witnesses of what they heard neither proves the existence of illicit connection between the deceased and Mst. Lal Khatoon nor any act leading to any suspicion or doubt was mentioned. Mere suspicion or doubt expressed by the appellants can hardly lead to any grave and sudden provocation which could have deprived the accused of the power of self- control without any overt act on the part of the deceased, or connected with any suspicion or doubt. The burden of proof having shifted on the -appellants, they should have adduced evidence of fact or circumstances to lay the foundation of suspicion or doubt which suddenly provoked them gravely to murder Ismail. They neither examined themselves nor produced any witness. If simple utterances of doubt of illicit relationship . By one person killing another are taken as evidence of suspicion depriving a person of the power of self-control to justify lesser punishment, it would provide a very convenient tool to avoid the punishment of death for premeditated murder by loudly uttering or shouting the words within the hearing distance of witnesses while murdering a person that "I am killing this person as I suspect him or he is suspected of having illicit relations with so and so". This easy method of avoiding death sentence is patently mala fide, unjustified and inhuman and must be strongly deprecated and rejected outright. The practice of taking the law in their hands by citizens is becoming increasingly common these days. Thousands of innocent people are being killed every year in the name of family honour on the flimsy ground of suspicion of "Karo/Kari". Islamic Law under any Fiqah does not permit any citizen to take the law into his own hands and obligates the State to protect the life and liberty of every citizen and severely punish the person who does so. Acceptance of the ground of mere suspicion of illicit relation (Karo/Kari) to kill would amount to giving to the members of the society an unfettered - licence to kill any person they dislike, abhor, hate or who have annoyed them in any way and while doing so loudly utter that the person killed or being killed is suspected of illicit relations with a member of the killer's family and thereby avoid the death penalty. This uncivilized, barbaric and abominable practice must be stopped immediately before it gets out of hand and creates total anarchy in society."
69. ' While considering the plea of Mr. Habibullah Shaikh, learned counsel for the appellants that there was no motive, enmity between the parties, with the result that motive was not proved and, therefore, the accused persons were entitled for lesser punishment. S.A. Sarwana, J., has held that:- "Proof of motive or previous is not necessary to sustain conviction for murder in a case where a person is coolly and barbarously put to death or when the offender is caught red-handed. Where the fact of murder has been clearly established, it is by no means incumbent on the prosecution to show what particular motive actuated the criminal's mind and induced him to commit the particular crime."
70. ' He ultimately concluded that:- "The bare taking of the plea of vindicating family honour does not lay the foundation for taking lenient view to reduce the death sentence to life imprisonment."
71. ' He further observed that there was no evidence whatsoever that murder of Ismail was committed to vindicate the family honour of the appellant and, therefore, the ratio of judgment on which Mr. Habibullah Shaikh placed reliance was not attracted.
72. ' At the very outset, I would like to observe with due few deference to my learned brother Muhammad Afzal Soomro, J., that the offence was committed in the year 1989 and section 302, P.P.C. Was amended in the year 1990, therefore, the amended section 302, P.P.C. Is not relevant and my learned brother S.A. Sarwana, J. Has rightly observed that unamended section 302, P.P.C. Has to be considered and the case is to be decided in accordance with the said provision of law. Learned counsel for the appellants has also conceded to this proposition of law.
73. ' As already narrated, Mr. Habibullah Shaikh, learned counsel for the appellants has stated that in support of the plea for lesser punishment he had raised two points only. First, that the motive is shrouded in mystery as there was no enmity, no and no annoyance for commission of murder.
74. Secondly, the incident was result of "Ghairat" on account of suspicion of deceased Muhammad Ismail being on illicit terms with Mst. Lal Khatoon wife of accused Khan Muhammad and, therefore, it was the case of grave provocation only. He has argued with emphasis that neither any exemption was claimed on account of grave and sudden provocation nor any plea of sudden provocation was raised.
75. ' A perusal of the opinions recorded by the learned Members of the Division Bench shows, that, S.A.
76. Sarwana, J. Has mainly dilated upon the plea of sudden and grave provocation, while Muhammad Afzal Soomro, J. Has also based his finding on the basis that incident was result of sudden flare-up involving family honour touching female. As the learned counsel for the appellants has clearly stated that admittedly it is not a case of any sudden provocation, depriving the appellants of power of self-control, therefore, I will confine my consideration to the point, whether a case of grave provocation has been made out, and whether on account of motive being shrouded in mystery awarding of lesser punishment is warranted. However, before considering these pleas, I feel duty bound to observe that my learned brother Muhammad Afzal Soomro, J., has made certain observations in the operative part of the judgment which are not supported by material on record.
77. Though, it is very unpleasant for me to make the observation but in the dispensation of justice, some times unpleasant duty is also to be performed. The observation of Muhammad Afzal Soomro, J. That the trouble started with the exchange of harsh words over the involvement of family honour, which ultimately took a serious turn and undoubtedly, the occurrence took place on the being loss of self-control to pocket or bear the insult, taking extreme step in order to take revenge from the deceased, is not borne out on record. This observation is, a figment of imagination and can be termed as surmise and conjecture, not warranted in law.
78. ' Now I advert to the two pleas raised by Mr. Habibullah Shaikh, learned counsel for the appellants in support contention that it is a fit case for awarding of a lesser punishment and that the death sentence be converted to life imprisonment. In a recent judgment in the case of Muhammad Aslam and others v. The State and others 2001 SCM R 223, a Bench of Honourable Supreme Court comprising of Iftikhar Muhammad Chaudhry, Deedar Hussain Shah and Hamid Ali Mirza, JJ., repelled the contention. In the cited case conviction of one of the appellants was not challenged and reduction in sentence of death to life imprisonment was sought, on the ground that the motive could not be proved by the prosecution. The Honourable Supreme Court held that:- "We do not find substance and merit in the contention of the learned counsel for appellant Rehan Ahmed. It is true that in the instant case the prosecution has not shown/assigned any motive for the commission of crime but the absence of motive would not come in the way of the prosecution if there is confidence-inspiring evidence with regard to the commission of crime by the appellant and it would not deter the Courts from passing the normal sentence of death under section 302, P.P.C. The failure to show motive would not lead to any adverse inference. It may be pointed out that the motive is always in the mind, of person who intends to take life of another, so it would be only in his knowledge, therefore, the failure on the part of the prosecution to show motive would not be fatal to its case. In the instant case, the evidence adduced by the prosecution is strong, reliable and confidence-inspiring, which could not be challenged. So far the motive, which is not assigned in this case, same would not be a mitigating circumstance for reduction of the sentence of appellant Rehan Ahmed from death to life imprisonment.
79. ' The Honourable Supreme Court further observed as follows:-- ' The deceased was unarmed and helpless. He was caught hold of by appellants Adnan Ansari and Muhammad Aslam, when the appellant Rehan Ahmed mercilessly and cruelly inflicted stab wounds on the vital part of the deceased, which resulted in his death. In the circumstances, no leniency in award of normal sentence of death as provided by section 302, P.P.C. Can be shown.
80. Both the Courts below have concurred in awarding the death sentence to appellant Rehan Ahmed and we find no justification to interfere with the said sentence because the Courts are required to do justice strictly in accordance with law and should not favor the culprit by awarding lesser punishment than the one prescribed by law. Their lordships in Muhammad Sharif v. State 1991 SCM R 1622 at 1627 and 1628 have observed that:-- ' A Judge is required to do justice on each and every aspect strictly in accordance with law and should not mould the alternatives to favor the guilty. It is the Divine will that we must be found and resolute to do justice whether it be detrimental to our own interests or the interest of those .Who are near and dear to us. Mercy is the attribute of God but we are warned not to allow that which is otherwise unlawful. Moreover, we should not show mercy to those who themselves are proved to have acted mercilessly'."
81. ' In the case of Nawaz Ali and another v. The State 2001 SCM R 726, another Bench of Honourable Supreme Court comprising Rashid Aziz Khan, Rana Bhagwan Das and Deedar Hussain Shah, JJ.
82. Considered the point, if absence of motive for mitigating murder of deceased would have an ultimate bearing on the legality of sentence of death. The appeal was dismissed and it was held by the Honourable Supreme Court as follows:--
8. It has been held time and again by this Court that in case of luck of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt. Reference may be made to Ahmad Nisar v. The State 1977 SCM R 175 wherein this Court observed as follows:-- ' Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others.
83. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable'.
9. Earlier in Talib Hussain and others v. The State 1995 SCM R 1776 it was held that there was no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances."
84. ' In another recent judgment, in the case of Miss Najiba v. Ahmed Sultan 2001 SCM R 988, another Bench of Honourable Supreme Court comprising Sh. Riaz Ahmad, Mian Muhammad Ajmal and Javed Iqbal, JJ., while considering a plea for enhancement of sentence from life imprisonment to death sentence held as follows:-- ' In Mosaddi Rai v. Emperor AIR 1933 Patna 100, it was observed that the Sessions Judge was bound to pass sentence of death unless there were substantial reasons for passing lesser sentence, which must be adequate and express and that the person accused of murder should not be sentenced to lesser penalty merely on the ground that the evidence was not strong enough to justify an irrevocable sentence because if the Court had any doubt as to the guilt of the accused, it should acquit him. In Abdus Sattar v. Muhammad Anwar (PLD 1974 SC 266), this Court set aside the acquittal of the respondents and restored the death sentences awarded to them by the trial Court as their acquittal recorded by the High Court was based on suspicious and conjectural reasoning leading to grave miscarriage of justice and there was no extenuating circumstances in their favor warranting lesser penalty in view of their cruel and inhuman conduct in burning alive two human beings in order to satisfy their lust for revenge. In Nabu v. The State (PLD 1975 SC 478), this Court declined to reduce the sentence of death as mere fact that other three co-accused of the appellant, guilt of whom proved almost equal and undistinguishable had been awarded lesser penalty was no ground for interference. In Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, this Court observed:-- ' It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Court in awarding the normal penalty of death. I cannot also avoid an impression 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 failure 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 trial and appeals all combine to help out the murders 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 stating of deterrence, thus, indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P.P.C. In a case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P.P.C. Does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made on that score in the matter of sentence'.
85. ' In Bakhsh Elahi v. The State 1977 SCM R 389, it was observed that the Legislature has conferred very wide discretion on the Courts in the matter of sentences and they are required to award severe sentences in view of increase in crime and exercise their discretion judicially keeping in view law and order situation. In yet another case, Jetharam v. Weram (1986 SCM R 1056), this Court enhanced the sentence of the respondent therein from life imprisonment to death as his act to kill art unarmed and helpless woman in sanctuary of her own. House was condemnable and no mitigating circumstance existed. In Maqbool Ahmad v. The State 1987 SCM R 1059, the appellants claimed reduction in their sentences on the ground that because of delay in the disposal of their appeals before the High Court and the Supreme Court they had acquired expectancy of life but their plea was rejected by this Court holding that to reduce the sentences merely on the ground of delay in disposal of appeals of the convicts would amount to releasing almost all the murderers and letting them loose on the public, endangering human life and destroying whatever is left of peaceful existence of the ordinary citizen.. In Muhammad Sharif v. The State 1991 SCM R 1622, it was held:-- ' There can be no controversy that the normal penalty prescribed for the murder by the Divine Law as also the law of the land is. Death. A murderer is guilty of his action before The Almighty Allah. He is regarded as the murderer of humanity. A Judge is required to do justice on each and every aspect strictly in accordance with law and should not mould the alternatives to favor the guilty. It is the Divine will that we must be firm and resolute to do justice whether it be detrimental to our own interests or the interest of those who are near and dear to us. Mercy is the attribute of God but we are warned not to allow that which is otherwise unlawful---moreover, we should not show mercy to those who themselves are proved to have acted mercilessly'.
86. ' In Noor Muhammad v. The State 1999 SCM R 2722, this Court declined to reduce the sentence of the appellant as he committed the murder of two innocent girls in brutal and gruesome manner and observed that the people are losing faith in the Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It was observed that, the Courts while deciding the question of guilt or innocence in murder and other heinous offences owe duty to the legal heirs/relations of the victims and also to the society and should award severer sentences to act as a deterrent to the commission of offences. In Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12, it was held as under:-- ' 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 *hile awarding punishment to him.
87. 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 too 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 also 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'.
6. It is obvious from the above-cited case-law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the like-minded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty-bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the. Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment, the Courts while awarding lesser punishment have to record reasons justifying the same."
88. ' The Honourable Supreme Court ultimately altered the sentence from life imprisonment to death.
89. ' In another recent judgment in the case of Waris Khan v. The State 2001 SCM R 387, another Bench of Honourable Supreme Court comprising Rashid Aziz Khan, Nazim Hussain Siddiqui and Javed Iqbal, JJ., while examining the question whether weakness or absence of motive or failure to prove the same in the wake of eye-witness account, worthy of credence, unimpeachable and confidence-inspiring, has any bearing in awarding the death sentence and whether it constituted mitigating circumstance, considered almost all the leading cases oh the subject and held that, generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit crime is best known to him and not to other. Reliance was placed on the ratio of judgment in the case of Abdul Wahab v. The State 1999 SCM R 1668, wherein the concept of motive was elucidated. In the said judgment it was held as under:-- "Motive shrouded in mystery" is not a legal principle which can be applied in all murder cases for reduction of capital sentence where there is no motive alleged/proved by the prosecution or where initially a motive is alleged but the same is not proved or withdrawn or a different motive appears in the prosecution evidence. "Motive shrouded in mystery" by itself is not a mitigating circumstance for lesser sentence. Where there is no motive alleged but the guilt of the accused is otherwise established on the basis of evidence, it could be said that in such a case the motive is "shrouded in mystery" and that it cannot be said as to what was the precise and immediate reason for the murder. But there is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved and that, if the prosecution proves- the case against an accused in the murder case beyond reasonable doubt, the normal sentence is death. If the normal sentence was not awarded, the Court is required to make out a case for reduction of sentence on the basis of mitigating circumstances. Therefore, in murder cases where no motive is alleged, the same remains shrouded in mystery; yet, if the prosecution establishes its case against the accused beyond reasonable doubt, the normal sentence awarded in such case is death, unless there are mitigating circumstances justifying award of lesser sentence.
90. ' When the plea is advanced that motive is shrouded in mystery, evidence or circumstances should be such that there is a definite indication or inference that murder must have taken place on account of provocation or other reason of the kind that could be considered as mitigating circumstances for reduction of sentence, but merely advancing a plea that the motive is shrouded in mystery by itself is not sufficient to make out a case for lesser sentence. Facts and circumstances of each case are considered to find out whether there are any mitigating circumstances justifying reduction of sentence."
91. ' After considering very large number of judgments delivered by the Honourable Supreme Court, it was held that the weakness of motive or its absence or where alleged but not proved would not constitute mitigating circumstance and hence the question of alteration in the sentence of death awarded by the trial Court under section 302, P.P.C. And upheld by a Division Bench of High Court does not arise.
92. ' On a resume of the law laid down by the Honourable Supreme Court in the cases cited above, leave no scintilla of doubt is left in my mind that the Courts should look into the objective conditions prevailing in the society, and am of the considered view that the Courts should not be oblivious of the objective condition prevailing in the society. The plea that absence of motive or establishment of the motive for committing murder, constitutes mitigating circumstance has been discarded. Respectfully following the dicta laid down by the Honourable Supreme Court in several recent judgments, it is held that mere absence of motive, ill will or enmity or the motive being shrouded in mystery is no more available to an accused person to plead the same as mitigating circumstance for reducing death sentence to life imprisonment. It was never a rule of law, but for some time it was treated by the Courts as a rule of prudence for safe administration of justice. This concept was evolved by the superior Courts and in the change circumstance, the Honourable Supreme Court has discarded this concept. This plea cannot be taken as a matter of course.
93. However, if the prosecution has specifically attributed motive then it is required to be established and if more than one motives have been attributed and the prosecution witnesses are wavering and jumping, then, non-establishment of motive coupled with other circumstances in a particular case may provide a justification for treating the non-establishment of motive as a mitigating circumstance. No such circumstances are available in this case. Mr. Habibullah Shaikh, learned counsel for the appellants has specifically argued that in this case no motive as been alleged by the prosecution, there is no enmity, no ill-will, no annoyance and the motive is shrouded in mystery.
94. In the facts and circumstances of the present case, and the dicta laid down by the Honourable Supreme Court in the recent judgments, referred to above, the first contention of Mr. Habibullah Shaikh learned counsel for the appellants is held to be without substance.
95. ' Now I would dilate on the second leg of argument advanced by the learned counsel for the appellants. His contention has ,been produced in detail in the narrative part of my judgment and I need not to repeat the contention. The question for consideration is whether mere suspicion of illicit terms between a male and female, howsoever, unfounded, unsubstantiated and unreal and far from truth it may be, and mere expressing of such suspicion by the accused persons at the time of committing murder and declaration of deceased, male/female as Karo/Kari, can be treated as mitigating circumstance, for awarding lesser punishment of imprisonment for life. The related question is, whether mere shouting/declaring by the assailants/accused that they suspected any male/female to be Karo/Kari, although there is no immediate circumstance for entertaining such suspicion or inciting of emotion, can be treated to be a provocation arousing impulse of passion, sufficiently grave in nature justifying lesser awarding of sentence.
96. ' The Honourable Supreme Court has held time and again that the Courts cannot remain oblivious of the objective conditions prevailing in the society. Any law or system of administration of justice, which becomes mere philosophical and or dogmatic and looses touch with ground realities and hard facts of life, is bound to be disastrous resulting in shattering of the entire fabric of the society.
97. The incidents of commission of murder on the assumed presumption/suspicion of illicit connection between male and female or even on account of mere exchange of greetings or exchange of smiles or finding a male and female just near to each other and then declaring them as Karo/Kari and committing their brutal murder, are increasing at alarming rate. It has become a menace rather scourge and is increasing at monstrous proportion to the extent that the life has become very unsafe and insecured, particularly in the rural areas of this country. It is being used as a ruse and cloak for taking revenge and setting very petty accounts by resort to cold blooded murders in broad daylight and in the crowded places in sight of so many persons. In rural milieu, the women- folk are made to toil and work very hard alongwith male persons in the field, particularly, for sowing, picking and harvesting of crops. They are made to fetch water and graze the cattle in jungle. They have to wash clothes on the canals bank and ponds. In short, they are compelled to perform all sorts of outdoor jobs, where mixing with the males is unavoidable, and at the same time the level of tolerance is so low and the male chauvinism is so high that a very minor gesture is sometimes treated sufficient to brand a male and a female as Karo/Kari and then by shouting that a male/female is Karo/Kari, a justification for taking away the lives of such condemned person is invented. It would not be out of place to mention that at least in rural areas of Sindh and Seraiki belt of Punjab the shaking of hands between male and female is normal social practice. However, if shaking of hands is coupled with exchange of,pleasantries or smiles also after a hard toil under the scorching sun, a male and female are found sitting under same tree or a male and female found walking at a short distance while to and from the home to field or vice versa, and overzealous person may declare such male and female to be Karo/Kari on mere suspicion, making their lives short. The question for consideration is whether the Courts should recognize that by mere shouting of Lalkara and branding male/female as Karo/Kari provides a mitigating and extenuating circumstance for awarding lesser punishment of the life imprisonment, instead of awarding normal sentence of death and thereby giving message to the persons having criminal mentality, that they can take away the life of any person and commit murder of more than one 0 persons male and female and thereafter, even if the commission of offence is established by very strong and unimpeachable evidence and they are convicted for committing murder, they can conveniently avoid death sentence and after getting life imprisonment they can procure their release by getting benefit of section 382-B, Cr.P.C. And of remittance after serving sentence for few years. It is high time when superior Courts should decide, whether the protection to life guaranteed in the Constitution of Islamic Republic of Pakistan, 1973 and under Benign and sublime law, ordained by All Mighty Allah, is to be protected in letter and spirit or human blood is to be made cheaper and the life insecure, merely on pretext of suspicion of illicit terms between male and female and by taking plea of "Ghairat" or family honour. The question for consideration is whether the contention raised by Mr. Habibullah Shaikh that a person should be "Ba-Ghairat" and not "Bay-Ghairat" should be accepted as rule, without casting a burden on a person taking plea of "Ghairat" and provocation to establish that the plea taken is real to the extent that a person looses self-control and is deprived of mental capacity to restrain the emotions. A balance has to be struck between the protection and security guaranteed to the life of a person and the plea of "Ghairat" and provocation, more particularly, when there is no sudden provocation, as in this case.
98. ' At this juncture I would like to observe that under Islamic dispensation, Maqasid-ul-Sharia envisage (1) Hafizuddin (protection of religion), (2) Hifz-ul-Nafs (protection of life), (3) Hifz-ul-Aql (protection of mental faculty), (4) Hifz-ul-Maal (protection of property, (5) Hifz-ul-Nasal (protection of progeny) and (6) Hifz-ul-Ird (protection of honour).
99. ' The issue under consideration pertains to protection to life and protection to honour in juxtaposition to each other. Since in this case, admittedly there is no plea of sudden provocation, therefore, I will not deal with this aspect. This aspect of the matter has been considered by the Honourable Supreme Court and has already been discussed in several cases.
100. ' The question in issue came for consideration before a Division Bench of this Court in the case of Ali Khan v. The State PLD 1963 Kar.
101. 1042. In the cited case, a female was suspected to be on illicit relationship with a male. Both of them were murdered by two accused persons. They were convicted under section 302 and were sentenced to death by hanging. As in this case, both the accused filed appeal -from jail and reference for confirmation of death sentence was also made. During the trial, the accused persons made bare denial of their guilt. The appeal was heard by two great jurists and legal luminaries, who have adorned this Court, namely Feroze Nana Ghulamally and A.S. Faruqui, JJ. After appraisal of the entire evidence, the learned Judges of the Division Bench held, that the prosecution has sufficiently established the charge against the accused and they were rightly convicted by the Sessions Judge. A plea was taken by the learned counsel for appellants by referring to several rulings on the ground of sentence, urging that one of the appellants being brother of deceased female and in view of her moral lapse was to an extent justified in his conduct, since she had brought disgrace to the family. The learned Judges referred to judgment by Munir, J.(as his Lordship then was) in Grudeve Singh v. Pakhar Singh AIR 1948 Lah. 58, wherein it was observed that the matter is only in the discretion of the convicting Judge, who must bear in mind at the time, the fact that the usual sentence on conviction of murder is death, unless ,there are extenuating circumstances. The learned Judges held as follows:-- "We feel that there are no extenuating circumstances in this case. Even though Mevo was the brother of Mst. Khairi, we are satisfied, for reasons we have already given that he accompanied by his companion, the co-appellant Ali Khan, both properly armed, was deliberately looking for an opportunity to kill Mst. Khairi. It is in evidence and earlier on the day of the incident, both the appellants armed with hatchets, had demanded that Khairi be given to them in Kassim's Otak. We are in no doubt 'that this was a premeditated and planned murder. Besides there is the ghastly murder of Peroze committed, on the evidence we have examined, by both the appellants. Peroze was an old man and had no interest beside that of protecting Khairi and from a sense of duty, he had refused to hand over previously to the appellants. His conduct would not be a ground for any provocation either grave or sudden to hack him to death as these appellants did. There are several reported cases where men of the age of the appellants having been found guilty of murder, in the absence of any extenuating circumstances have been sentenced to death. It has further been proved that the appellants after accosting Peroze and his party and incapacitating Peroze, turned on Khairi, butchered her to death and then turned their attentions to Peroze and inflicted what has been proved to be fatal injuries on him. In the peculiar circumstances of the present case, we do not feel that we would be justified in inflicting the lesser sentence, namely, that of transportation for life against the appellant. We have been referred to the opinion of Shabir, J. In the State v. Jamalan and others (2) where he observed, It is generally believed that a woman who sleeps with a man who is not her husband, disgraces all members of her family. We do not agree that this amounts to an extenuating circumstances. We feel that if it is time that it is realized that just because of female member of the family has been guilty of sexual laxity, it is not incumbent on every member of the family to go roving about armed with deadly weapons looking for her and an opportunity to kill her, and then plea for a lesser sentence as an extenuating circumstance.
102. ' For these reasons we uphold the conviction of both the appellants under section 302, P.P.C. Read with section 34. We confirm the sentence of death inflicted on both of them by the trial Court, and dismiss their appeal."
103. ' The question of awarding lesser punishment came for consideration before a learned Single Judge of Lahore High Court in the case of Saeed lqbal Bhatti v. The State 2000 M LD 2023. A plea was taken that deceased female was involved in immoral activities and on receiving information that some strange male persons were busy in immoral activities at the house of complainant with the deceased, the accused went there finding his wife in compromising position and stabbed her under heat of passion and ego. The accused was not able to establish the plea and it was held that reduction in the sentence on the ground of provocation was not substantiated as no evidence was produced in support of the version. The plea was, therefore, not accepted.
104. ' In the case of Munawar Ali v. State 2001 SCM R 614, a plea was taken that the murder committed was result of grave and sudden provocation because accused saw his wife and another person kissing each other and resultantly due to heat of passions alleged offence was committed. The Honourable Suprenie Court did not accept the plea for the reasons that it appeared to be without substance and cannot be pressed into service because the law does not take into account abnormal creatures reacting abnormally in given situations. The law contemplates the acting of normal beings in given situation and the protection that is offered by the exception is the protection for normal beings reacting normally in a given set of circumstances. A Court has to consider whether a reasonable person placed in the same position as the accused was, would have reacted under that provocation in the manner in which the accused did. The Honourable Supreme Court further observed that, the record is indicative of the fact that no justification whatsoever was available to kill a helpless poor woman on the ground of sudden and grave provocation as nothing has come on record showing that due to heat of passion the alleged murder was committed. Before the plea of grave and sudden provocation is pressed into service it must be shown distinctly not only that act was done under the influence of some feeling which took away from the person doing it all control over his actions, but that feeling had an adequate cause which is lacking badly in this case.
105. ' The question of honour killing came for consideration before the Honourable Supreme Court in the case of Muhammad Akram Khan v. The State PLD 2001 SC 96. In this case, the accused took plea in his statement under section 342, Cr.P.C. That he saw his sister Mst. Hamida talking to deceased, while standing in the wheat field. He, therefore, under the influence of "Ghairat' fired at the deceased, because he caused grave and sudden provocation. The Honourable Supreme Court did not accept the plea for the reason that mere plea that he suspected his sister to be on illicit relation and due to such suspicion attempted at the life of deceased was not supported with any evidence on record and was not sustainable. At this juncture I would like to observe that although in this case and the earlier case question involved was of grave and sudden provocation, but the principle which has been laid down, is applicable to the plea of mere grave provocation also and in more stronger terms. In both the cases. The Honourable Supreme Court refused to accept the plea for the reason that the alleged provocation was not established and substantiated with any evidence brought on record. The Honourable Supreme Court further observed that, "legally and morally speaking, no body has any right nor can anybody be allowed to take law in his own hands, to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits, so-called honour killing, which amounts to murder. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of Constitution of Islamic Republic of Pakistan, 1973, which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution". In this case, the plea of "Ghairat" was not deemed to be a mitigating circumstance and death sentence awarded to the appellant and confirmed by High Court, was upheld.
106. ' Taking guidance from the authoritative pronouncements made by the Honourable Supreme Court in the judgments cited above, I am of the considered opinion that a balance can be struck in the protection of life and protection of honour, if a person taking plea of honour killing, establishes sufficiently that he was placed in such a situation that he totally lost control over his emotion and was swa yed by his passions. I am persuaded to agree with the findings of my learned brother S.A.
107. Sarwana, J., that the appellants neither produced any evidence to prove that the deceased did any act or conducted himself in any particular manner or was found in such a position which may provoke the appellants to cause his death. I further agree with the views of S.A. Sarwana, J., that mere suspicion or expression by the appellants can hardly lead to any provocation which could have deprived the accused of the power of self-control. No overt act has been attributed to the deceased connecting him with suspicion or doubt. I also agree with the proposition laid down by S.A. Sarwana, J., that if simply utterances of doubt of illicit relationship by one person killing another are taken as evidence of suspicion depriving a person of the power of self-control to justify lesser punishment, it would provide a very convenient tool to avoid the punishment of death for premeditated murder by loudly uttering or shouting the words within ,the hearing distance of witnesses while murdering a person that, "I am killing this person as I suspect him or he is suspected of having illicit relations with so and so".
108. ' I concur with the view of my learned brother S.A. Sarwana, J. That this easy method of avoiding death sentence is patently mala fide, unjustified and inhuman and must be strongly deprecated and rejected outright. The practice of taking the law in their hands by citizens is becoming increasingly common these days. Thousands of innocent people are being killed every year in the name of family honour on the flimsy ground of suspicion of "Karo/Kari". Islamic Law under any Fiqah does not permit any citizen to take the law into his own hands and obligates the State to protect the life and liberty of every citizen and severely punish the person who does so. Acceptance of the ground of mere suspicion of illicit relation (Karo/Kari) to kill would amount to giving to the members of the society an unfettered licence to kill any person they dislike, abhor, hatewho have annoyed them in any way and while doing so loudly utter that the person killed or being killed is suspected of illicit relations with a member of killer's family and thereby avoid the death penalty. This uncivilized, barbaric and abominable practice must be stopped immediately before it gets out of hand and creates total anarchy in society. I would like to add that because of awarding of lesser punishment on account of mere allegation of Karo/Kari, even in the cases where the commission of murder is not denied, the life has already become nasty, brutish and short.
109. ' Consequent to above discussion, it is held that mere shouting of the accused persons at the time of committing murder of deceased Muhammad Ismail that he was being done to death because he was suspected to be on illicit terms with Mst. Lal Khatoon wife of accused Khan Muhammad does not provide sufficient justification to treat it as mitigating circumstance. The accused persons themselves gave up this plea during the trial and in their statement under section 342, Cr.P.C. They merely pleaded their innocence. There was no such overwhelming evidence to establish the commission of murder by the accused persons, that the conviction was not challenged at all.
110. ' I would like to repeat very candid statement of learned counsel for the appellants that it is the duty of defence to bring mitigating circumstance on record. I agree with this submission that if there is any material on record, the Court may itself infer the mitigating circumstance for safe administration of justice but I am not persuaded to agree with the contention that mere shouting at the time of committing murder that the deceased was Karo, can be treated as mitigating circumstance for awarding lesser punishment.
111. ' For the foregoing reasons I agree with the conclusion arrived at by my learned brother S.A.
112. Sarwana, J. And am not persuaded to agree with the conclusion arrived at by my learned brother Muhammad Afzal Soomro, J.The result is that the appeal stands dismissed and the sentence of death awarded to the appellants by the learned Sessions Judge is hereby confirmed. Confirmation Reference is accepted.