1988 PLP 909 (SCMR)

ASLAM RIAZ HUSSAIN, ACTG. C.J.‑‑Petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 31‑3‑1985 whereby it reduced the sentence of Muhammad Afzal respondent from death to that imprisonment for life.

2. The respondent was tried alongwith one Muhammad Qayum for having murdered Muhammad Ashraf (deceased). The motive for the murder was stated to be that Muhammad Ashraf had to take some money from Muhammad Afzal accused but whenever the former demanded the money Muhammad Afzal accused put him off on one pretext or the other. On the morning of the day of occurrence Ashraf deceased went to the shop of the accused Muhammad Afzal and demanded the money, whereupon Afzal accused abused and threatened him saying that he shall soon settle the matter with him.

3. The prosecution case, briefly stated, is that on 27‑12‑1982 at about 10 a.m. Muhammad Ashraf deceased informed his brother Muhammad Younis (P.W.6) that he had gone to the shop of Muhammad Afzal accused to take back his money and that Muhammad Afzal accused had abused the deceased and threatened him that he would settle the account with him at the Aik Bridge. On the same day at 3 p.m. Muhammad Afzal and Muhammad Qayum came to the shop of Muhammad Ashraf deceased and started showering abuses on him, who also paid in the same coin. Muhammad Younis (P.W.6) was attracted by the abuses and came out of his shop. He saw Muhammad Afzal accused saying to Qayum co‑accused to drag Ashraf out of the shop to settle the account. On this Qayum accused dragged the deceased and held him by Jappha, when Afzal accused gave Chhuri blow on the back of Ashraf deceased. Munshi Sardar Muhammad (not produced) and Muhammad Aslam (P.W.8), who were taking tea while sitting in the shop of Muhammad Ashraf (deceased), came out. Muhammad Ashraf (deceased) after receiving the Chhuri blow ran towards the police post in an injured condition when Muhammad Younis and Muhammad Aslam, P.Ws. placed him in a tonga and took him to the hospital. Muhammad Ashraf (deceased) died before reaching the hospital. Muhammad Younis P.W. left for the police station for reporting the matter, but he was still there when police came and recorded his statement (Ex.P/C).

4. In support of its case the prosecution produced two eye witnesses, namely, Muhammad Younis (P.W.6) and Muhammad Aslam (P.W.8). It also relied on the recovery of blood‑stained Chhuri (Ex.P.4) from Muhammad Afzal accused‑respondent; medical evidence and the evidence of motive.

5. The trial Court believed the prosecution version, convicted and sentenced the petitioner to death under section 302, P . P. C . On appeal, however, the High Court found (in paragraph 11) that there are extenuating/ mitigating circumstances in favour of the accused respondent and as such reduced his sentence of death to that imprisonment for life. The said paragraph of the impugned judgment is reproduced below for facility of reference:‑ "This brings us to the question of sentence. Having considered the same very carefully, we find that there are extenuating/ mitigating circumstances in favour of the appellant for lesser penalty. From the prosecution evidence it is very much obvious that Muhammad Ashraf deceased had also abused the appellant before he was attacked at and as such the possibility that the act of the appellant had provoked (the accused) cannot be excluded. So giving him the benefit of doubt on the question of sentence, we alter the sentence of death to imprisonment for life. The fine awarded by the trial Court, imprisonment in default thereof and the directions given for the payment of fine to the legal heirs of the deceased, however, is maintained. We feel that Abdul Qayum's case was quite distinguishable and was rightly acquitted. Resultantly, the Criminal Revision is dismissed. "

6. Learned counsel for the petitioner argued that, in the circumstances of the case, where the Court has believed the prosecution version as put forward by the eye‑witnesses, the reason recorded by the High Court, in para. No.11 can hardly be called a mitigating circumstance. He submitted that if this view is upheld, a murderer can always escape the major penalty by the device of provoking his victim by hurling a few abnoxious filthy and insulting abuses at him, to which the latter would naturally react by returning abuses.

7. We feel that there is weight in this contention and this is a fit case for grant of leave to consider whether the reasons recorded by the High Court for holding that the aforementioned acts constitute mitigating circumstances was justified. Ordered accordingly. M.I./M‑383/S Leave granted.