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(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 21st October 1969, in Criminal Appeal No. 9 of 1969 (Lahore), Criminal Appeal No. 97 of 1968 (Bahawalpur)/Murder Reference No. 9 of 1969).

(a) Penal Code (XLV of 1860),

S. 302‑Eye‑witnesses related to deceased‑Account given by eye‑witnesses consistent and no material circumstances elicited to doubt their veracity‑Mere relationship, held, no ground for rejecting testimony.

(b) Penal Code (XLV of 1860),

S. 302/34‑Accused (aged 26 years) and his uncle both charged for murder‑Accused found equally interested in murder and killing deceased with pistol brought from home under pre‑planned design‑Plea that accused fired at behest of his uncle, not accepted.

Gurdew Singh and others v. Emperor A I R 1948 Lah. 58 and Sher Hassan v. The State P L D 1959 S C (Pak.) 480 considered.

(c) Penal Code (XLV of 1860),

S. 302‑Conviction‑Sentence Mere delay in final disposal of case, by itself, no valid ground for award of lesser penalty‑Convict may approach Government by way of mercy petition.

Mahmud Ali Kasuri, Senior Advocate Supreme Court instructed by M. A. Qureshi, Advocate‑on‑Record for Appellant.

R. S. Sidhwa, Advocate Supreme Court instructed by Ijaz Ali Sheikh, Advocate‑ on‑Record for the State.

Date of hearing : 18th February 1971.

MUHAMMAD YAQUB ALI, J.

‑Muhammad Shafi, appellant, aged 26 years, was tried along with his paternal uncle Abdul Hamid, under section 302 read with section 34, P. P. C. for the murder of Muhammad Sharif, deceased, by shooting, on 13th July 1967, at 4 p. m. in village Faqir Shah, District Bahawal nagar. The appellant who had fired the fatal shot at the deceased was sentenced to death while Abdul Hamid who accompanied him was sentenced to transportation for life.

On appeal and reference under section 374, Cr. P. C. a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, upheld the conviction of the appellant and con firmed his sentence of death, but Abdul Hamid was given the benefit of doubt and acquitted.

In the petition for special leave to appeal the appellant contested his conviction on grounds which went to appreciation of evidence. It was contended that all the eye‑witnesses were related to the deceased and being interested persons conviction should not have been passed on their evidence. The contention did not hold good as mere relationship of the eye‑witnesses of the deceased was not a sufficient ground to reject their testimony. The account given by the eye‑witnesses was consistent and nor material circumstance or fact elicited in their cross‑examination to' cast doubt on their presence at the scene of crime. They had given the minutest details of incident which fitted in with the circumstances attending upon the crime. Their evidence was further corroborated by Shah Mohammad, P. W. 'who arrived at the spot immediately after the occurrence and was informed by Mohammad Amin, Balal and Faiz, P. Ws. that the appellant had fired at Mohammad Sharif, deceased, and killed him. Lastly the empty cartridge marked C' recovered from the scene of shooting was found by the Examiner of Fire Arms, Central Forensic Science Laboratory, Lahore, to match with the pistol recovered at the instance of the appellant from his house in the presence of Ghulam Mohammad and Niaz Ahmad, P. Ws. both of whom were found to be independent and trustworthy. No case for re‑exami nation of the evidence was thus made out.

Mr. Mahmud Ail appearing in support of the petition ‑next argued that since the appellant had fired at the deceased at the behest of his paternal uncle, he was entitled to lesser sentence and relied on the decisions in the cases of Gurdew Singh and others v. Emperor (A I R 1948 Lah. 58) and Slier Hassan v. The State (P L D 1959 S C (Pak,) 480). Leave to appeal was granted to consider the question whether on the evidence brought on the record proper sentence had been awarded to the appellant.

On examining the evidence, we find that the appellant can hardly claim that he had acted under the influence of his paternal uncle and as such he was entitled to the lesser penalty provided by law for the offence of murder. According to the account given by the eye‑witnesses both the appellant accompanied by his paternal uncle Abdul Hamid came out of his house and raised lalkara that they would teach the deceased, who was going along the lane, a lesson for not giving possession of their land. The appellant was armed with a .12 bore pistol, while Abdul Hamid was empty‑handed. The appellant fired at the deceased and brought him to the ground. Both the culprits then decamped.

It cannot thus be said that the appellant who is 26 years of age had acted under the influence of his uncle. The land dispute with the deceased was common to both of them. The appellant came out of his house armed with a pistol obviously with the intention of killing the deceased under a pre‑planned design. He acted at his own behest and not on the instigation of his uncle.

In Sher Hassan v. The State the trial Judge had awarded a sentence for transportation for life to the appellant, but the High Court had on a petition by a relative of the deceased enhanced the sentence to the extreme penalty of death. It was found that the appellant a boy of 16 had killed the deceased under the influence of his brother 5 or 7 years older than himself. In the opinion of the Court this constituted an adequate reason for refraining from applying the extreme penalty in the case of the appellant and since the circumstance was not taken into account by the High Court while enhancing the sentence, the sentence of transportation for life awarded by the trial Judge was restored.

In Gurdew Singh and others v. Emperor Munir, J.‑(as he then was) categorised the following cases in which the lesser penalty may be awarded for the offence of murder :‑

"One of these is the extreme penalty of the offender, however brutal or premeditated the offence ; but there is no precedent for the proposition that a youth of 19 or 20 comes within this exception. Another ground for the lesser penalty is to be found in those cases where an offender, who does not come within the first exception, is young and acts at the instigation or under the influence of his elders. There are several cases in which young men of 20 and above have been awarded the lesser penalty because they joined their elders in the murder. Where the murder is committed in the course of a sudden quarrel and without premeditation or on the impulse of the moment it is usual not to pass the death sentence unless the circumstances be exceptional. In cases of premeditated murder, however, the usual sentence is death unless the conduct of the deceased furnishes grave though not sudden provocation for the murder, as for instance, where an aggrieved husband or other near relation of a woman murders a man who persists in offending the feelings of the aggrieved relative by publicly carrying on an immoral intrigue with the woman. There is still another class of cases where the usual sentence may be withheld. These are cases where a man is convicted of murder by reason of vicarious liability. Where death is intended and the murder is premeditated the offender should usually be sentenced to death irrespective of whether the vicarious liability arises by reason of section 34 or section 149, Penal Code. But where the common object of an unlawful assembly is the beating of a person and death is not intended but is a likely consequence of the riot, the death sentence is withheld from those who are only construc tively liable, but is imposed on the particular member of the unlawful assembly who brought about the death."

The appellant's case does not fall in any one of these categories as there was neither evidence of his having acted under the influence of his paternal uncle nor a man of 26 could in reason claim that his own will was dominated by the will of an elder.

Learned counsel lastly urged that since the occurrence had taken place as far back as the 13th July 1967, the delay in the final disposal of the case was by itself a valid ground for award of lesser penalty. The back‑log of cases in the High Court and the Courts below has grown enormously in recent times. It is, therefore, no longer feasible to dispose of cases entailing death penalty with expedition as was the practice before independence. Accordingly if delay is considered a mitigating circumstance, then death penalty which is the ordinary sentence for the offence of murder may not be imposed at all. In law such a position cannot' be countenanced, but the appellant may approach the Government for mercy in the matter of sentence.

The contention that the appellant is entitled to lesser penalty of law for the murder of Mohammad Sharif has, therefore, no merit.

In this view the appeal is dismissed maintaining the convic tion and sentence of the appellant.

Appeal dismissed.

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