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Criminal Appeal No. 147 of 1979, decided on 12th December, 1983.

(From the judgment, dated 5‑8‑1978 of the Lahore High Court passed in Criminal Appeal No. 1057 of 1976 and Murder Reference No. 279 of 1976).

‑‑ Art. 185 (3)‑Penal Code (XLV of 1860), S. 302‑Leave to appeal granted to consider contention that as slap given by deceased to accused at village Panchayat had been considered mitigating circumstance in favour of co‑accused who had not been slapped, slap to accused fur nished a greater provocation to him and that, therefore, imposition of death sentence to accused was justified.

‑‑ S. 302‑Murder‑Parties appearing at village Panchayat in which altercation followed by exchange of abuses took place between deceas ed and accused in course of which deceased had given two slaps to accused‑Having been separated by Panchayat, accused while leaving, holding out threat that he would teach lesson to deceased, that very day, for slapping him in Panchayat‑Held, since slap had been given at Panchayat by deceased was an adversary in dis pute before Panchayat, same would amount to a provocation Slapping was, therefore, in nature of a mitigating circumstance and as such extreme penalty of death was not deserved‑Sentence of accused reduced to imprisonment for life from death.‑[Sentence].

Syed Farooq Hassan Naqvi, Advocate Supreme Court instructed by M. A. Qureshi, Advocate‑on‑Record (absent) for Appellants.

M. Kowkab Iqbal, Advocate Supreme Court instructed by Ejaz 4hmad Khan, Advocate‑on‑Record (absent) for the State.

Date of hearing : 12th December, 1983.

Since leave was granted to consider only the question of sentence of Abdus Sattar appellant, it is not necessary to nar rate the facts of the case in detail. Even otherwise, the facts have already been discussed and dealt within this Court's order, dated 11‑12‑1979 dismissing the leave petition as regards the conviction of the appellant and his co‑petitioners.

2. The occurrence giving rise to the case against the appellant ha taken place on 24‑9‑1973. Earlier on that day at 9 a. m., both parties had appeared at a panchayat to which an altercetion followed by exchange of abuses had taken place between the deceased and the appellant, in the course of which the deceased had given two slaps to the appellant. They were separated by the panchayat but the appellant, while leaving, had held out a threat he would teach a lesson that very day for slapping him in panchayat. At peshiwela that day the appellant and his co‑accused launched the attack at the deceased's house, resulting in his death and injuries to Ghulam Muhammad complainant and Muhammad Anwar P. W. As the fatal injuries had been attributed to the appellant and his elder brother Fazal Qadir, the trial Court awarded them the death sentence. The High Court while maintaining the conviction, however, reduced the sentence of Fazal Qadir but maintained that of Abdus Sattar for the following reason

"In the mater of sentence, however, we are inclined to take a lenient view in the case of Fazal‑ul‑Qadir appellant. He had used the blunt side of the datar, and had no direct motive. His younger brother was insulted in the village Panchayat. It is common‑knowledge that in our archaic rural society any insult shown to a person participating in the village panchayat is not easily pocketed. Very often it is boast fully displayed by the doer and very vigorously retaliated by the vic tim. It always involves some element of provocation. He is an elder brother of Abdul Sattar and must have taken it as an insult of the family. For all this, while maintaining his conviction we reduce the sentence of death to one of imprisonment for life we are not prepared to extend this principle in the case of Abdul Sattar. He could have avoided the fateful incident by accepting the slap from an elderly person in good spirit. He had time to cool down. He, therefore, does not deserve any such leniency."

3. Leave was granted to consider the contention that as the slap given by the deceased to the appellant had been considered as a mitigating circumstance in favour of Fazal Qadir who had not been slapped, the slap to appellant furnished a greater provocation to him and that, therefore, the imposition of the death sentence was not justified.

4. Since the slap had been given at a panchayat by the deceased who was an adversary in the dispute before the panchayat, the same would amount to a provocation. The High Court itself observed that such insult shown to person participating in a village panchayat is not easily pocketed. The benefit of the provocation, therefore, ought to have been given to the appellant particularly when such benefit was extended to his elder brother. We are satis fied that the slapping was in the nature of a mitigating circumstance and as such the extreme penalty of death is not deserved. We accordingly reduce the appellant's sentence of death to one of imprisonment for life. The appeal is dismissed in all other respects.

M. Z. M' Order accordingly.

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