1972 PLP 163 (SCMR)

WAHEEDUDDIN AHMAD, J.‑This appeal by special leave is directed against the judgment of the Lahore High Court in Criminal Appeal No. 690 of 1969 (Murder Reference No. 185 of 1969), dated the 18th December 1970. By this judgment, the conviction of the appellant was upheld and his death sentence was confirmed. The appellant was tried for the murder of Nasimullah and was sentenced to death by the Additional Sessions Judge, Lahore. He challenged this judgment in the above‑mentioned Criminal Appeal and Murder Reference and a Division Bench of the Lahore High Court dismissed the appeal and confirmed the death sentence of the appellant. The appellant has challenged the judgment in this appeal before us. Special leave was granted in this case to consider the propriety of the death sentence awarded to the appellant. The prosecution case is that Hasimullah deceased used to cut jokes with the appellant by calling him Dalip Kumar hero. On the 11th March 1968, at about 8 p.m., the deceased was sitting on a chair outside the shop of P. W. 3 Muhammad Ibrahim. The appellant reached there and abused the deceased. He also attacked him with a knife causing him five incised injuries. As a result of this attack, the deceased collapsed on the spot and the appellant ran away from the scene. After the appellant ran away from the scene, the father of the deceased arrived on the spot and he, with the help of the prosecution witnesses, removed his injured son to Mayo Hospital, Lahore. The injured person, on reaching there, expired. In support of the prosecution case, the prosecution has relied on motive, the recovery of weapon of offence, namely, knife, Exh. P. 4 and‑ocular testimony of P. Ws. Muhammad Ibrahim, Nisar, Hanif, Usman and Habib Ahmad. The Courts below have disbelieved the recovery of weapon of offence but convicted the appellant on the testimony of the eye‑witnesses Shaikh Masood Akhtar, learned Advocate‑on‑Record, for the appellant, has not challenged the ocular testimony of the prosecu tion witnesses who deposed against the appellant. He has confined his argument only to the question of sentence. Accord ing to the learned counsel, the appellant is a young man of 17 years. He was provoked and, therefore, he killed the deceased. The learned counsel contended that extreme youth is one of the grounds for reducing the death sentence to transportation for life. In support of this contention, he relied on the case of Gurdev Singh and others v. Emperor (A I R 1948 Lah. 58). The contention of the learned counsel has not impressed us. According to the Investi gating Magistrate, the age of the appellant is 20 years. There is no reason to doubt this finding. It cannot, therefore, be said that the appellant is too young or falls within the category of extreme youth. The further contention of the learned counsel that the appellant attacked the deceased under provocation has also no substance. At the time of attack the deceased did not provoke the appellant. On the contrary the appellant abused him and gave him five fatal blows. The attack was brutal and pre meditated. It cannot, therefore, be said that there are any extenuating circumstances to reduce the sentence of the appellant from death to transportation. It is a clear case of brutal murder. In these circumstances, we find no force in the appeal. The learned counsel also brought to our notice that about three years have passed from the date of the prosecution and on this ground he prayed that the sentence of the appellant may be reduced from death to transportation for life. This consideration can only weigh with the executive authorities. The appellant, if so advised, can move the executive Government on this ground `for the reduction of his sentence. Subject to the above remarks, the appeal is dismissed. Appeal dismissed.