1988 PLP 1135 (SCMR)

JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore whereby the conviction of Zulfiqar Ali respondent under section 302, P.P.C. was maintained but his sentence was altered from death to that of imprisonment for life. Furthermore his conviction under section 307, P.P.C. was altered to one under section 326, P.P.C. and the sentence of ten years' R.I. was reduced to seven years' R.I. The sentences of fine were however maintained. Briefly the facts are that the respondent alongwith another Muhammad Ashiq was charged for offences under sections 302/307/34, P.P.C. and the trial Court acquitted Muhammad Ashiq co‑accused but convicted the present respondent under section 302, P.P.C. sentencing him to death plus fine. It also convicted him under section 307, P.P.C. and sentenced him to ten years' R.I. plus fine. On appeal the Lahore High Court, Lahore altered the conviction and sentence as stated above of the respondent. The deceased in this case is Ataullah and the injured person is Abdur Rashid petitioner. Another person was also injured namely Muhammad Hafiz but he had not been produced. The motive for the crime as set up by the prosecution is that six days before the present occurrence Abdur Rashid petitioner in the company of Ataullah deceased went to Mohallah Dhullay to see some relative. The respondent objected to their visit in the Mohallah and thus a scuffle took place between them in the course of which the deceased is stated to have given 2/3 slaps to the respondent. However they were separated by the residents of the Mohallah and the respondent left with a threat that he would take revenge. According to the prosecution the occurrence had taken place in this background. The prosecution version further is that on the fateful day the deceased alongwith the petitioner and Muhammad Hafiz came out from the cinema hall after seeing a movie when they noticed the respondent armed with a dagger and Muhammad Ashiq co‑accused armed with a knife standing outside. They raised a Lalkara and attacked. The respondent gave two dagger blows to the deceased. When the petitioner and Muhammad Hafiz intervened, Muhammad Hafiz was given two knife blows by Muhammad Ashiq co‑accused whereas the respondent gave one dagger blow on the right hand of the present petitioner. The deceased died as a result of the blows. Learned counsel for the petitioner has taken us through paras. 12 and 13 of the impugned judgment where the finding is to the effect that it was a premeditated attack, that the intention was of murdering the deceased and that the respondent had taken undue advantage and had also acted cruelly while inflicting injuries to the deceased who was empty handed at that time and that in spite of this finding it is submitted that the sentence of death was altered to imprisonment for life on the ground that a mitigating circumstance in favour of the respondent existed i.e., that the deceased had insulted him by giving him two slaps six days before the present occurrence and that as such the act of the respondent of murdering the deceased was somewhat under provocation. It is argued that the mitigating circumstance for the awarding of lesser penalty in this case was not legally available and had led to miscarriage of justice. We grant leave in this case to consider the question of sentence whether the reasons given in support of the mitigating circumstance were proper and cogent in accordance with the well‑established principles of safe administration of criminal justice. This appeal may be heard alongwith the respondent's appeal, if any. M.I./A‑212/S Leave granted