1989SCMR1515 (PLP)

JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore, dated 14 June, 1987 whereby maintaining the conviction of Falak Sher respondent under section 302, P.P.C. his sentence was reduced to life imprisonment; and the conviction and sentence under section 302, P.P.C. of life imprisonment awarded to Shairi respondent by the trial Court was maintained. Learned counsel for the petitioner does not press this petition as against Shairi respondent but the present petition is only for enhancement of the sentence of Falak Sher respondent to death. Both the respondents along with two others were tried by the trial Court for offences under section 302/34, P.P.C. but vide its judgment the trial Court acquitted the two co‑accused whereas the two respondents were convicted under section 302/34, P.P.C. and Falak Sher respondent was sentenced to death plus fine while Shairi respondent was sentenced to life imprisonment plus fine. On appeal of the convicts as stated above the High Court has altered the sentence of death to imprisonment for life of Falak Sher respondent. Hence the present petition for enhancement of his sentence to death. The deceased in this case is Shamair. The occurrence took place at 12 noon on 24 December, 1982 in Chak No.719/GB. The F.I.R. was lodged by the present petitioner who is father of the deceased on the same day at 2 p.m. The respondents were arrested on the following day. From the respondents were recovered weapons of offence which were stained with human blood. The eye‑1 witnesses are the petitioner, Muhammad Ashraf and Waryam. The motive is that' the deceased was challaned in the case of murder of one Muhammad but he was subsequently acquitted. This Muhammad was nephew of Falak Sher respondent as well as real brother of two of the acquitted co‑accused who are also related to the aforesaid respondents. It was in this background that the accused party attacked the deceased. According to the prosecution version the deceased was' coming on a bicycle when he was attacked. Falak Sher respondent was the principal accused. The High Court while maintaining his conviction has converted I his sentence from death life imprisonment only for the reason that the I deceased passed on his bicycle right in front of the Ehata of the respondents and that this fact must have given enough provocation to them that their enemy was going away in front of their residential area and therefore he should be done to death. Learned counsel for the petitioner argued before us that this could not constitute a mitigating circumstance for awarding lesser penalty to Falak Sher respondent because if he had passed on his bicycle from in front of the house of the accused party it did not give them a right to kill him. We grant leave in this case in order to consider whether in the circumstances the commutation of the sentence of Falak Sher respondent from death to imprisonment for life was in accordance with the well established principles of safe administration of criminal justice. Falak Sher respondent is undergoing his sentence in the jail. He should not be released until the disposal of this appeal. M.A.K./B‑102/S Leave granted.