1918 PLP 114 (SCMR)

ANWARUL HAQ, J.‑This judgment will dispose of Criminal Appeal No. 46 of 1976 as well as Petition for Special Leave to Appeal No. 77‑R of 1976, both of which have arisen out of the judgment of a Division Bench of the Lahore High Court dared the 28th of April 1976, by which the appeal filed by the convict laved Ahmad alias Jaida against his conviction and sentence of imprisonment for life plus a line of Rs. 2,000 by the learned Additional Sessions Judge, Sahiwal, for the murder of one Munir Ahmed was dismissed, and a revision petition filed by the father of the deceased praying for the enhancement of the sentence was accepted, and the appellant was sentenced to death. The sentence of fine was also maintained. It was alleged by the prosecution that the appellant bad fallen in love with the deceased, a young boy of 17/113 years of age, and a student of the First Year Class at the Government College, Sahiwal, and bad been making advances to him, to which the deceased did not respond. A few days before the present occurrence, the appellant is said to have gone to the deceased in the College, and, declaring his love for him, bud asked him to come out with him, but the deceased had refused, whereupon a quarrel had ensued between the two. It is said that the appellant then threatened the deceased that either lie would take his own life or that of the deceased, as he could not live without the latter. At about 8 p.m, on the 4th of December 1972, the deceased, accom panied by some of his friends, namely Daud Mumtaz (C. W. 1), Ziaul Islam (P W. 10) ad Babar Chishti, had gone out towards Paradise Cinema, Sahiwal, to see a picture. After looking at the posters dismayed at the various cinema houses, they decided that they would see the late night show Shama Cinema, commencing at 10 p.m. They ware proceeding towards the Post Office and had reached the gate of the Vocalically School when they were joined by the appellant. The latter asked the deceased Munir Ahmed to come with him as he was his for end, and the appellant could not live without him but the deceased did not r u a to this proposal, and instead asked the appellant to accompany them if he so wanted. It is said that the appellant accepted this offer and started walking alongwith the deceased and his three friends. They bad travelled only a few steps when the appellant suddenly pulled out a pistol from the folds of his trousers, and fired at the deceased on his left flank from a close range. The deceased tell down, and the appellant ran way, alongwith the pistol, towards the house of the local X. E. N. The alarm raised by the companions of the deceased attracted Murtaza, a Peon of the Buildings Department, Bashir Ahmed (P. W. 8) and Abdul Rehman (P. W. 9), who surrounded the appellant and succeeded in over‑ powering him near the bridge of the watercourse, alongwith the pistol still carried by him is his hand. They brought the appellant back to the spot, where the deceased expired soon after. Leaving the dead body at the spot, Daud Mumtaz prose did to the police station, taking the appellant with him in the custody of Murtaza and Bashir Ahmed. The Police Officer recorded the firs: inform report at 9‑15 p.m. end also took into possession the pistol produced by the appellant. That pistol contained a used cartridge in its chamber, and a live cartridge was also taken out from tile pocket of the appellant. These recoveries were supported at the trial by B3ahir Ahmed (P. W. 8) and Sub‑Inspector Mir Mohammad Zulfiqar [P. W. 12). The fire‑arms expert Mohammad Sarwar (P. W. 11) found that the crime empty, had been fired from the pistol recovered from the appellant. During the trial Khurshid Muhammad (P. W. 6). a paternal uncle of the deceased, produced a letter (Exh. P L) said to have been written by the appellant from the jail to the deceased in July 1971, when Vie appellant was in custody in connection with another murder case. In this latter, the appellant professed his love for the deceased and complained to the latter about his indifference. The handwriting of this letter was proved by Khushi Mohammad (P. V. 6) and his neighbor Nasir Ahmed P. W. 7 both of whom have their business at Arifwala, to which place the appellant belongs, and asserted that they were familiar with the appellant's handwriting as he used to issue obits to customers while sitting at the shop of his maternal grandfather in Arifwala Town. While pleading not guilty, the appellant denied all the allegations including the authorship of tile letter Ean. P. I., his visit to the deceased at the latter's college, and even his capture near the spot and production in the police station alongwith the weapon of offence. He asserted that ho had been falsely implicated on account of suspicion, that in fact he had been arrested from Arifwala on the following morning, and that although be had applied to the coming Magistrate for holding an identification parade, yet the prayer was not granted. He, however, admitted his involvement in a previous murder case but stated that he war innocent and was discharged by the Inquiry Magistrate. He did not produce any oral evidence in defence, but placed on the record an affidavit of witnesses Murtaza, dated the 25th of May 1973, to the effect that on hearing the alarm Murtaza and his superior, namely, the X. E. N., had gone to the spot and learnt that a college boy liar, been murdered by someone, and t at the injured boy was taken to the Hospital by the X.E N. in his car, bat on reaching the hospital it was discovered that the boy had already expired. Apparently, the object in producing this affidavit was that the culprit, whoever he was, had not been captured at the spot. Daud Murtaz, who had lodged the first information report immediately after the occurrence, did not support the prosecution and was giving up as having been won over, However, he was examined by the learned trial Judge as a Court witness. He took up the position that be learnt at 10 p.m. that Munir Ahmad had been murdered near the Paradise Cinema but he was not present at the spot nor did he go to the police station that night to report the matte and instead he signed the first information report on the following day. When cross-examination by the Public Prosecutor he denied having made the statements attributed to him in the first information report but re-affirmed his signatures on that document as well as on the recovery memos. Saying that he had appended these signatures at about noon on the following day at the Police Station. Out of the other two boys, while were accompanying the deceased at the time of the murder. Buhar Chusti was also given up by tie Prosecution, and not examined at all as to whereabouts could not be traced, but Ziaul Islam (P. W. 10) fully supported the case. including the Motive, the manner of assault, and the capture of the appellant at the spot after the murder. Bashir Ahmad (P. W. 8) and Ahdul Rehman (P. W. 9) proved the capture of the appellant after a chase, while he was still holding the pistol in his hand. Relying upon the eye-witness account furnished by Ziaul Islam as corroborated by the capture of the appellant at the spot the recovery of the pistol and the matching crime empty and also the evidence as regards motive, the learned trial judge convicted the appellant under section 302, P.P.C., but awarded him the lesser penalty on the ground that the murder was not premeditated, and was the result of impulse and temper . The learned Judges in the High Court have endorsed the view of the trial Court as regards the reliability of the prosecution evidence, but have disagreed on the question of sentence, observing that the appellant was not a college student alongwith the diseased, but as outsider. Who was after the deceased and was visiting him at the college and chasing him in the streets. They have expressed the view that the act of the appellant was not the result of a sudden impulse but a deliberate act as he had made up his mind to finish the deceased on account of tatter's refusal to respond to his advances, and had for this purpose, armed himself with a pistol. According ly, they have enhanced his sentence. The learned counsel appearing for the appellant has challenged the conviction on the grounds that it would be highly unsafe to rely on the eye‑witness account given by a solitary witness of tender age as Ziaul Islam (P. W. ICJ) was only 16 or 17 years of age at tae time of the occurrence that in any case his account is in conflict with the medical evidence which shows that tie injury was inflicted on the hack of the deceased, and not on the left flank ; that the story of thereof the appellant s apprehension at the spot and subsequent production at the police station could not be believed as it was supported only by chance witnesses like Bashir Ahmed and Abdul Rehman whereas Murtaza who admittedly resided at the X.E.N. s house nearby did not come forward to support the prosecution that due opportunity was not given for the production of defence witnesses and that the prosecution had singularly failed to produce independent quarter near two cinemas. We regret we see no merit in these submissions. Before discussing the prosecution evidence, we may dispose of the learned counsel's assertion as to the lack of opportunity for producing defence witnesses. The various orders recorded by the trial Court show that genuine efforts were made to secure the presence of Babar Chishti and Ghulam Murtaza as well as Daud Mumtaz, who had been given by the prosecution. While Daud Mumtaz's presence was secured, the other two could not be served. The orders made by the trial Court on 22‑12‑1973, 8‑1‑1974, 14‑1‑1974, 19‑1‑1974 and 21‑1‑1974 show that repeated attempts were made to serve summons and warrants on the witnesses just mentioned as well as Mohammad Khurahid. X E. N., but the report of the process server on each occasion was that they were not available. On the 25th of January 11974, the defence made a statement giving tin its witnesses but placing on record the affidavit of Murtaza dated the 25th of May 1973, to which reference has already been made by us. It is of some significance that the defence had been able to secure this affidavit from this witness but did not assist in effecting service upon him of the summons/ warrants issued by the trial Court for his appearance and a defence witness. It seem to us that in view of the efforts made by the trial Court to secure the Presence of the witnesses named by the defence, it is not possible to agree with the learned counsel for the appellant that due opportunity for producing defence evidence was not given. In support of his contention that the appellant's conviction could not be safely based on the evidence of solitary witness of comparatively young age, the learned counsel bas referred us to Gulbeg v. State (P L D 1964 Kar. 275), State v. Umed Ali (P L D 1964 Dacca 533) and Najeebullah v. State (1973 P Cr. L J 737). In the first Mentioned case, the need for close examination of toe evidence of a solitary eye‑witness was emphasized, especially when he had given inconsistent versions at three different stages. In the second case, the Curt was put en caution in assessing the evidence of a witness who had made discrepant statements in the committing Court and at the trial. In the last case, it was observed that the relationship of a prosecution witness with the deceased as cut a good ground by itself to misbehave his evidence, but the absence witnesses frame the locality would create a doubt to the veracity of the prosecution cage. There can be no dispute with the propositions acacias d in these cases. However, they do not have any direct bearing on the fact on the infect case. We find that Ziaul Islam was studying in the Third‑Year class is the same college as the deceased, and that he gave consistent version of the incident during tat investigation as well as during the commitment proceeding and the trial. The defence was not able to elicit anything to shear that he had any motive to falsely implicate the present appellant. Being a college fellow of the deceased, his presence with the deceased for the purpose of seeing a cinema she v, could be regarded as natural. We consider, therefore, that the Courts below were right it in placing reliance on the eye‑witness account furnished by Ziaul Islam. He was old enough to comprehend what he saw and to describe the same before the Court. The contention that the eye‑witness account furnished by Ziaul Islam is in conflict with the medical evidence does not appear to be correct. According to Ziaul Islam, the appellant was waiting on the left of the deceased at the time he fired at him. A reference to the medical evidence shows that the injury en the deceased was on the back of the abdomen on the left side in the lumber area above trio upper margin of the left hip bone, and its direction was from hack to front and from left to right. Such an effect could only be produced if the assailant was almost abreast of the deceased on his lift side. It thus appears to us that the medical evidence in fact confirms the ocular account given by Ziaul Islam as to the relative positions of the deceased and the appellant at the time the shot was fired. The criticism regarding the evidence of Baghir Ahmed and Abdul Rehman also appears to be devoid of merit. It is true that they happened to be nee the place of occurrence by chance, but when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passers‑by cannot be rejected by describing them as mere chance witness, unless, of course, it in found that the witnesses concerned could no give any satisfactory explanation of their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony. Now, in the present case, Bashir Ahmed stated that he bad gone to the General Post Office to post a letter given to him by big employer Ch. Abdul Ghafoor and he was returning from there when he got involved in the chase of the murder a college student. There does not appear to be anything improbable or unnatural in this explanation. We can take judicial notice of the fact that not infrequently letters arc posted at the General Post Office even though letter boxes may be available nearer at home, and according the availability of a letter bas near the residence of Ch. Abdul Ghafoor cannot falsity the account given by Bashir Ahmed. It transpires from the record that there was no connection between the deceased or his family and Bashir Ahmed, and accordingly there could be no reason for Bashir Ahmed to have been brought at the spot and to be shown as a witness of the apprehension of the appellant, if indeed he who is not actually present there, as asserted by him. We cannot believe that as the time of recording tae first information report Daud Mumtaz (C. W. 1). the Investigating Officer and Bashir Ahmed conspired with each other to falsely include his name among the persons who had succeeded in overpowering the appellant and taking him to the police station. More or less, similar considerations apply to the evidence given by Abdul Rahman. He had his residence at about a mile from the spot, and was taking a walk toward Jehaz Ground, and had reacted near the cost Office Chowk, Sahiwal, when he was attracted to the spot by the report of a shot from a fire‑arm. We have carefully scrutinized his evidence, and have not been able to discover any reason to show that he had come forward to give false evidence for any ulterior motive. His name fields mention in t‑.e first information report as being one of the persons who had assisted in over powering the appellant. There could be nothing unnatural or unusual in a person taking a walk towards a cluster of cinemas and hotels where evening life was still in full swing. We are accordingly of the view gnat the Courts below were right in placing reliance on the testimony of this witness as sell. It is correct that Daud Mumtaz refused to support the prosecution case, but we have a no hesitation in saving that he had clearly been won over, and there could be no point in attributing the first information report to him if indeed be was not accompanying the deceased and had not witnessed the crime. His story that he was made to sign the F. I. R. sad the recovery memo of the pistol the next day at the police station is obviously a lie and has been rightly rejected by the Courts below. Similarly, the non‑appearance of the P. W.D Peon Ghulam Murtaza does not in any manner officer the prosecution case. We have already observed that the defence vas able to obtain an affidavit of a negative kind from trim on the 25th of May 1973 sad therefore apparently it was also in a position to make him available for giving evidence as a defence witness if it had so desired. His non‑appearance at the trial does not, therefore, affect the truthfulness of the allegations made against the appellant. For the foregoing reasons, we are satisfied that there was ample evidence on the record to show that it was the appellant who had caused the death of Munir Ahmad owing to the tatter's refusal to respond to his indecent and immoral advances. We may now consider the question of the nature of the offence committed by the appellant as well as of the appropriate sentence therefore, in the light of the submissions made by Sardar Mohammad Akram. The learned counsel contends that on the showing of the prosecution itself, the encounter between the deceased and the appellant was only by chance, and that the incident developed upon a sudden quarrel between the two on the refusal of the deceased to accompany the appellant. He submits that as there was no premeditation on the part of the appellant, ho could not be burned with intention to cause death, and. therefore. Type offence, it any, committed by him would fall' under Part I of section 304 of the' Pakistan Penal Code, especially because the appellant was entitled to the benefit of either Exception I or Exception IV to section 301 of the Pakistan Penal Code inasmuch as there was grave and sudden provocation given by the deceased. In support of these submissions, the learned counsel has referred to Mohammad Iqbal v. State (P L D 1957 Lah. 31), Masoom Beg v. Mohammad Munir (1971 S C M R 476) Sham v. State (1972 P Cr. L 1 149), Muhammad Yousaf v. State (1973 P Cr. L 132), and Rahimmuddin v State (1973SCMR327). Before noticing the cases relied upon by the learns " counsel for the appellant, it would be useful to recall that the Pakistan Penal Code defines culpable homicide in section 299 and then goes on to enumerate, in section 300, that "Except in the cases hereinafter excepted" culpable homicide is murder it the act by which the death is cause is done with the intention of causing death or with the intention of causing such bodily injury as the offender knows to be likely to cause death or if it is done with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The section contains five Exceptions which take the offence out of the purview of the definition of murder and in such cases the offence is made punishable not under section 302 of the Code but under section

304. It will be seen. Therefore that if an accused person cannot bring his case within the scope of any of these Exception then the offence would be punishable as murder, and not as culpable homicide not amounting to murder. Under section 105 of the Evidence Act the burden would ordinarily the on the accused to prove the existence of circumstances which would bring his case within any of the Exception to section

300. P.P.C However as observed in Safdar Ali v. Crown (PLD 1953FC93), there will be cases in which the accused may not have succeeded in affirmatively proving the existence of those circumstances, and yet on examining the prosecution case side by side with the defence a reasonable doubt might be created in the mind of the Judge regarding the guilt of the accused. The benefit of such a doubt will go to the accused, whether as a matter of right or of prudence for the burden to prove all the ingredients of a crime remains on the prosecution fro the beginning to the end. In the case of Mohammad Iqbal, the Court rejected the plea of the accused that he was entitled to the benefit of Exception I to section 30 an account that of grave and sudden provocation offered by the deceased, with the result that his conviction under section 302, P.P.C was maintained but the sentence was reduced on the ground that the murder was not planed or premeditated but was committed in the heat of passion In the second case. Mentioned by the learned counsel, namely that of Masoom Beg, the case was found to be covered by Exception 4 to section 300, P. P. C. as the fatal was inflicted without premeditation upon a sudden quarrel in the heat of passion, and even though the accused had used a knife, it was found that he has not taken under advantage of his adversary. In the next case namely, that of Shard the learned Judges held that the offence committed was not murder but culpable homicide not amounting to murder and punishable tinder Part II of section 304, P. P. C., as the accused had acted under grave provocation by picking up a household Danda meant for grinding spices rind not used as a weapon of offence and given a few blows resulting in the death of a woman who had been living with him as his wife without any formal Nikah but was refusing to shift to his native village. Although the learned Judges have not specifically stated so yet it is clear that, in their view, the matter tell within the ambit of Exception I to section 300, P. P. C la the next case mentioned by Mr. Akram, the learned Judges convicted the accused persona under Part I of section 304, P. P. C. on the ground that t cy had no intension to cause death, and the incident had arisen out of the refusal of tile deceased to allow them to pass though the lane on the basis of his suspicion that they were having an illicit affair with a woman of his family. It appear from the body of the judgment that there wag a quarrel beta‑eon the parties, which was followed by grappling during which one of the accused persona held the deceased by his shirt collar while the other one gave him a knife blow in the chest. On the facts thus found by the High court, the case would appear to fall within the purview of Exception 4 to section 300, P. P. C. In the last case, the trial Court cad convicted the accused under Part I of section

304. P. P. C. by giving him the benefit of Exception 4 to section 300 therefore. The learned Judge in the High Court observed that although there wet evidence of exchange o: hot words and abuses between the parties, yet there was no sudden fight upon a sudden quarrel, and therefore, the case clearly fell under section 302, P. P. C. As, however, there was no appeal against the acquittal of the Accused of the charge of murder, the High Court was content to enhance the sentence to transportation for life. Leave to appeal was granted by this Court to consider whether the High Court was legally justified in enhancing the sentence in a ease where there was no appeal against, the; acquittal of the app.‑Part under section 302, P. P. C. The appeal was ultimately dismissed on the finding that the matter would fall under Part I of section 304, P. P. C. as the injury intended to be inflicted by the appellant was such as was likely to cause death. It will be seen that none of these cases can be treated as an authority for the proposition that simply because there is no premeditation on the part of the accused, his act in causing death would be culpable homicide not amounting to murder. Tie statute having clearly spelt out the ingredient of the offence of culpable homicide as well as of murder, it is the duty of the Court to ascertain, in each case, whether the ingredients are present Or the whether the case is covered by nay of the Exceptions, which would take the offence out of the purview of the definition of murder. Coming to the facts of the present case, we have already stated that there is evidence to show that the appellant had wanted to establish an illicit liaison with the deceased, and on tae latter's refused had threatened either to finish him own life or to finish the deceased. In this background the learned Judges in the High Court appear tin us to be right in thinking that the appellant had deliberately armed himself with a deadly weapon lire a pistol, even though he, may not have been certain that ha would meet the deceased at the particular spot where he did catch up with him sad found him in the company of his own college friends. In these circumstances, the act of the appellant mast be Held to be as a result of premeditation, i.e. his prier determination; to finish the deceased the latter persisted in his refusal to respond to his advances. Assuming for the sake of argument, that the appellant had not intended to kill the deceased, and had merely wanted the latter to accompany him by leaving his other college friends, yet the fact remains that he fired at the deceased with his pistol, and accordingly he must be burdened with the intention of causing such bodily injury as he knew to be likely to cases the death of the deceased. His case would thus be folly covered by the second clause of section 300, P. P. C. and it can It be held to fall under any of the Exceptions to that section. It is futile to argue that the refusal of the deceased amounted to grave and sudden provocation within the meaning of Exception I to section 300 P. P.C. The deceased was under no obligation of any kind to accede to the immoral demands of appellant and it would be a dangerous proposition to say that a denial of such demands could furnish grave and sudden provocation to the person making them. It would be a travesty of the accepted norms and values of decent humane conduct obtaining in our society. It is thus clear to us that in the circumstances of the case, the appellant is not entitled to take the plea of grave and sudden provocation on the ground that the deceased had spurned his immoral advances. It is equally clear that the matter is also not covered by Exception 4 to section 300, P. P. C, as that section contemplates a sudden fight ensuing upon a sudden quarrel, and it is further necessary to saw that the act resulting in the death of the deceased did not amount to the accused person taking an under advantage of his adversary during a Sudden fight, nor did it amount to acting in a cruel or unusual manner. In the case before us, even if there was a sudden quarrel between tree parties, there is no evidence to show that it was followed by a sudden fight, meaning thereby a mutuality of blows between the parties. There is no allegation that the refusal of the deceased to accompany the appellant was followed by a mutual fight; as that is fair is that the appellant had joined the party of the deceased and all the boys had traversed value a few paces when the appellant suddenly fired from its pistol The act of firing was thus a unilateral act on the part of the appellant, negativing an essential ingredient of Exception IV. Further, as the deceased was totally unarmed and had trot made even a violent gesture towards the appellant the latter s act in using a deadly weapon would clearly amount to taking undue advantage of the deceased and also acting in a cruel manner. As a result, it must be held that Exception IV to section 300, P. P. C is also not available to the appellant. It follows from what we have said above that the offence committed by the appellant is that of murder and rot of culpable homicide not amounting to murder. The appellant hoe, therefore, been rightly convicted under section 302, P. P. C. As regards the question of sentence, it is submitted by Mr. Mohammad Akram that the learned Judges in the High Court had acted illegally in enhancing the same as they had not complied with the statutory provision of section 439 of the Cr. P. C., inasmuch is no blow‑cause notice had boon given to the appellant is this regard, and he was seriously prejudiced by the fact that he had not engaged any counsel to represent him to the criminal revision petition instituted by the father of the deceased, which was heard jointly with his appeal against his conviction. He submits that on this short ground alone the order made by the High Court is liable to be set aside. He relies on Fazal Rahim v. Slate (1974 S C M R 386), He further contends that even on merits the learned Judges were in error in interfering With the well considered observa tion made by the trial Court that the murder was not a premeditated one and that the appellant had acted ore impulse and temper, which facts clearly constituted extenuating circumstance justifying the imposition or tae teaser penalty. Subsection (1) of section 439 of the Cr. P. C. permits the High Court, while acting in revision to enhance the sentence and subsection (2) thereof lays down that "no order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence." We find that, the revision petition instituted by Shah Mohammad, the father of the deceased, came up before a learned Judge of the High Court on the 28th of June 1974, and he recorded the following order :‑- "Mr. Nasim Hassan, Advocate. Admit. Notice. To be beard alongwith Criminal Appeals Nos. 195 and 196 of 1974:" The question is whether such a notice eras served on the, appellant and whether it amounted to a compliance with the requirements of subsection (2) of section 439, Cr. P. C. It is conceded on behalf of the appellant that a notice of the institution of the revision petition by Shah Mohammad was served on the appellant through the Jail authorities, but it is contended that the notice did not contain a specific statement calling upon hint to show cause why his sentence of transportation for life should not be enhanced to that of death, and that in any case he did not engage any counsel to represent him in this matter, nor was any notice issued to him of the actual hearing .of the revision petition. Subsection (2) of section 439 does not require that the notice of such s revision petition has to be served on the accused in any particular manner all that it contemplates is that the accused must have an opportunity of being heard before any sentence imposed on him is enhanced by the High Court in the exercise of its rovisional powers. The issuance of a notice regarding the institution of the complainant's revision petition was clearly intended to afford the accused person precisely such an opportunity. The learned Judge admitting the revision petition had also directed that it shall be heard along with the two appeals already filed by the appellant to challenge his convictions for murder and the unauthorised possession of the pistol. From a copy of the cause list for the 28th of April 1976 produced before us by Mr. Mohammed Akram, it becomes clear that all the three matters, were listed for joint hearing. In these circumstances, the learned counsel appearing for the appellant before the High Court, namely, Mr. Abdul Hayee Mansoor, Advocate, had full notice that the revision petition was also to be heard, and if he was not representing the appellant in the matter of the enhancement of sentence, he was duty bound to inform the High Court accordingly, but apparently he did not do so. It is true that the record does not contain formal Vakalatnama in his favour in relation to the revision petition yet in the order made by the learned Judges in the revision petition the presence of Abdul Hayee Mansoor for the respondent is noted. Mr. Mohammad Akram, learned counsel for the appellant, had taken time from us to file an affidavit from Mr. Abdul Hayee Mansoor to the effect that he had not been engaged by the appellant to represent him in the revision petition and that in fact he did not do so. However, at the hearing of both these matters on the 21st of June 1977, Mr. Mohammad Akram stated that Mr. Abdul Hayee Mansoor was not prepared to file any such affidavit although he would be willing to appear before us if we so desired. It seems to us that the reluctance of Mr. Abdul Hayee Mansoor to file an affidavit must be due to the fact that he had fully represented the appellant in the High Court in both matters irrespective of the fact whether the appellant bad executed a formal Vakalatnama in his favour in respect of the revision petition as well, We do not see any necessity for summoning Mr. Abdul Hayee Mansoor to appear before us in this behalf as the matter stand clarified by his reluctance to file the necessary affidavit. We are, therefore, satisfied that tile appellant had full notice of the revision instituted by the father of the deceased praying for the enhancement of the sentence and that the opportunity contemplated by subsection (2) of section 439, Cr. P. C was properly afforded to him in this behalf. He was represented by a counsel before the High Court. who had fully argued the matter both as regards conviction and sentence imposed upon the appellant for the offence of murder. In these circumstances, the observations made by this Court in the case of Fazal Rahim, are not attracted, for in that case the Court found that the accused was not represented by a counsel, and he was not apprised of the nature of the proceedings which took place in English in his presence. The Court also observed that while showing cause against enhancement of the sentence the accused was also entitled to show cause against his conviction, but the existence of such a right was not explained to him. These facts are clearly distinguishable from those of the instant case. Mr. Mohammad Akram next argued, on the authority of Ramchandra & shankershet Uravane v. Emperor (A I R 1933 Bom. 153), that the procedure adopted by the High Court of hearing the appeal and the revision petition jointly had seriously prejudiced the appellant, as it created a confusion about his liability in the matter of sentence. We find that the learned Judges in the Bombay case had observed that "it is undesirable that a notice for enhancement of sentence should be issued at the time of the admission of the appeal. The Court must first of all deal with the appeal on merits and it is only after disposing of the appeal that it can consider whether notice to enhance sentence should issue." However, having said so, the learned Judges then proceeded to observe "if the notice has been issued at the time of the admission, the accused is entitled on the evidence to show that he is innocent. If the conviction is not correct on the evidence he will be entitled to acquit tal." In the first place; the observations as to the procedure to be followed have reference clearly to the practice obtaining in the Bombay High Court which appears to be different from that followed by the Lahore High Court. We can take judicial notice of the fact that in the Lahore High Court revision petitions for enhancement of sentence are usually admitted for hearing a nonce is issued to the accused person simultaneously with the admission of his appeal against conviction, if he has filed any. Both the matters are thus jointly beard as the same ground has to be covered in either case. This procedure appears to have been followed in the present case, and a specific direction was issued that the revision petition shall be heard alongwith the two appeals filed by the convict. Such bring the case, there could be no occasion for any prejudice to the appellant on the contrary, he had a full and proper opportunity of disputing the correctness of his conviction as well. As to the propriety of the High Court interfering with a sentence awarded by the trial Court, it may be useful to refer to the observations made by this Court in Feroze Khan v. Ghulam Nabi Khan (P L D 1966 S C 424), while dealing with the revisional powers of the High Court under section 439, Cr. P. C. It was stated that "interference in revision under section 439, Cr. P. C. 1895, need not be confined to cases where the order of the Court below is manifestly wrong or perverse or is based on the view of the evidence which no judicial officer would take. In appropriate cases, even finding of fact could be disturbed in revision . . . . . . The governing consideration must always be whether, in relation to the proved facts and circumstances justice has keen done in accordance with law." Again, in Mohammad Sharif, Mohammad Javed (P L D 1976 S C 452), this Court adversely commented on the marked tendency of the trial Courts to avoid death penalty even in cases of heinous crime in which no extenuating circumstances were available. From the proved facts of this case, it is abundantly ‑clear that the appellant was pestering the deceased for ate immoral purpose, and he had already made known his determination to finish the deceased if the latter persisted in refusing to respond to his demands In order to accomplish his nefarious object, he had armed himself with a deadly weapon, and had no hesitated to use the same when the deceased had refused to go with him by leaving his other college friends on a winter evening. In these circumstances, the learned trial Judge was clearly in error in thinking that the act of the appellant was not a premeditated one, and that it was the result of "impulse and temper". The learned Judges in the High Court were right in correcting this error, which had resulted in a grave miscarriage of justice, As a result, Criminal Appeal No. 46 of 1976 and Petition for Special Leave to Appeal No. 77‑R of 1976 fail, and are hereby dismissed. Appeal/Petition dismissed.