1981 PLP 453 (SCMR)

Art. 185(3)-Leave to appeal-Petition barred by two days and explanation for delay not completely satisfactory-Delay, however, condoned in circumstances of case and subject to all just exceptions. Muhammad Bilal, Advocate Supreme Court and Qasim Imam, Advocate-on-Record for Petitioner. Date of hearing : 24th October, 1979. SHAFI-UR-REHMRN, J.--The petitioner, who has been convicted of the offence under section 304, Part 1, P. P. C. arid sentenced to ten years' rigorous imprisonment and a fine of Rs. 10,000 seeks leave to appeal against his conviction and sentence.

2. The facts of the prosecution case, in brief; are that on 13-9-1977, during the month of Ramazan, Muhammad Siraj deceased was returning from the mosque after Maghrab prayers in the company of his brother Muhammad Rafiq (P. W. 8) when they were stopped by the petitioner Israr and his brother Ibrar who were standing in the Chauk known as Charsoo in village Khaishki Bala. The petitioner and his brother taunted them about the caps. The deceased objected to such a taunt. There was grappling. Ibrar the acquitted accused, is said to have caught hold while the petitioner is said to have given a knife blow on the chest of the deceased. The Investi gating Officer reached the house of the deceased and recorded his report about the concurrence at 8-45 p.m. The injured expired the next day. The petitioner had absconded after the occurrence and could be arrested on 15-8-1978.

3. At the trial the petitioner took up the plea that he saw the deceased end Muhammad Rafiq (P. W. 8) on one side and his brother Ibrar on the other, the deceased and his brother were disgracing . Ibrar by asking him to take off his trousers and on their not desisting from doing so the petitioner stabbed the deceased. The petitioner also stated that he had run away. out of fear. The trial Court convicted the petitioner under section 304, Part I, P. P. C. and sentenced him to life imprisonment and to pay a fine of Rs. 2,000 and in addition pay Rs. 2,000 as compensation to the heirs of the deceased. His co-accused Ibrar was acquitted.

4. The High Court on appeal of the convict, held that the petitioner and the deceased were closely interrelated. The occurrence was a sudden one as a result of a joke over a cap. Only a single blow with a knife was inflicted on a vital part of the body and keeping these factors in view the conviction under section 304(I), P. P. C. was maintained but the sentence was reduced to ten years' rigorous imprisonment and a fine of Rs. 10 000 or in default two and a half years' rigorous imprisonment. Out of the fine, if realised, a sum of Rs. 5,000 was to be paid to the heirs of the deceased as compensation.

5. The petition is shown to be barred by two days and an explanation supported by an affidavit has been given for it. That explanation has not completely satisfied us but in the circumstances of the case, and subject to all's just exceptions, we condone the delay of two days.

6. The learned counsel for the petitioner has stated that the petitioner was of a tender age, that the occurrence was admittedly sudden and them were mitigating circumstances and the punishment could be suitable reduced. The learned counsel gave out the age of the petitioner as 13/4 years but was unable to show from the record that it was so. On the other hand, we find that even in his petition for leave he has not made the tender age of the petitioner e ground for seeking reconsideration of the sentence awarded by the High Court. Besides, there was also admittedly about five months' abscondence of the petitioner after the occurrence. This Court does not interfere with legal sentence awarded by the Courts. There is no merit in the petition which is dismissed. Petition dismissed.