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Criminal Petition No. 395 of 1979, decided on 6th August, 1984.

(On appeal from the judgment, dated 15‑7‑1979 of the Lahore High Court, Lahore in Criminal Appeal No. 806 of 1977).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Penal Code (XLV of 1860) S. 302‑‑Sentence‑‑Murder‑ Accused armed with lethal weapon causing death' by inflicting injuries on vital parts of body‑‑High Court reduced death sentence to transportation for life‑‑Order impugned‑‑Accused suspecting illicit relations against deceased‑‑Extenuating circumstances clearly existing in favour of accused‑‑Discretion exercised by High Court in circumstances did not require interference‑‑Leave to appeal refused.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal/ reduction in sentence‑‑Conviction on charge of murder altered to one: under 5.324/34 and sentence reduced to imprisonment already undergone‑‑Order impugned‑‑.Role of accused was such that he was equally liable under S. 302/:34, P.P.C. along with cry‑accused arid High Court erred in law in convicting him only under S. 324/34, P.P.C ‑‑Leave granted to consider contention that accused having shared common intention to murder fully participating in occurrence by inflicting knife blow ova cane of eye‑‑witnesses.

Abdul Aziz Qureshi, Advocate Supreme Court for Petitioner.

Kh. Shaukat Ali, Advocate Supreme Court and Sh. Ijaz Ali, Advocate‑on‑Record for Respondent No. 5.

Date of hearing: 6th August, 1984.

The real brother of the petitioner herein, namely, Manzoor Hussain, aged 24 years was murdered on 28‑7‑1975 at 11/12 in the night in a field near the tubewell of Muhammad Tufail son of Pir Bakhsh within the area of Chak No.22/8‑R. within the limits of Police Station Talumba, District Multan. Respondents Nos.l to 4 were accused of having jointly committed the crime and were, accordingly, tried.

The learned Additional Sessions Judge, who tried them, convicted all of them for the murder of Manzoor Hussain under section 302134, P.P.C., while respondent No. 1 was awarded the sentence of death, the other three respondents were sentenced to imprisonment for life. However, on appeal and reference, the High Court, by its judgment dated 15‑7‑1979, found respondents Nos. 2 and 4 innocent and acquitted them. However, respondents Nos. 1 and 3 were found by it to be guilty. The former's conviction under section 302/34, P.P.C. was, upheld but his sentence was reduced to life imprisonment but as regards respondent No. 3, his conviction was altered to one under section 324/34, P.P.C.

and his sentence reduced to the imprisonment already undergone by him. the petition for leave to appeal is directed against the aforesaid judgment of the learned High Court.

Although this petition for leave, as filed, is directed against the order passed in respect of all the four respondents, Mr. Abdul Aziz Qureshi, learned counsel for the petitioner, has, however, pressed before us the petition with respect to the orders passed in regard to respondents kilos. 1 and 3 only.

So far as respondent No.1 is concerned, it is submitted that he was armed with a hatchet and attacked the deceased Manzoor Hussain with that lethal weapon and inflicted injuries on the vital parts of his body (viz. right temporal bone and neck); hence, there was no reason for reducing his sentence from death to life imprisonment.

As regards respondent No.3, it is submitted that he also shared the common intention to murder Manzoor Hussain with respondent No.1 and had fully participated in the occurrence inflicting a knife blow on one of the eye‑witnesses viz. Ahmad P.W.

We have considered these submissions.

So far as the petition directed against the imposition of the lesser sentence upon respondent No.1concerned, we are of the opinion that the discretion exercised by the High Court is imposing than lesser sentence does not require any interference. The motive of the crime as stated in the F.I.R. itself, is that Mst. Amiran, sister of respondent No. 2 herein was engaged to respondent No. 1 aforesaid and that the said respondent suspected that Manzoor Hussain deceased had illicit relations with her. In these circumstances, an extenuating circumstances clearly existed in favour of respondent No.1.

However, so far as respondent No.3 is concerned, there is prima facie force in the contention of the learned counsel for the petitioner that his role was such that he was equally liable under section 302/34, P.P.C. along with respondent No.1 and that, therefore, the High Court had erred in law in convicting him only under section 324/34, P.P.C.

We would, accordingly, grant leave to appeal to consider the above‑mentioned submission.

The result is that while the petition directed against respondents Nos.l, 2 and 4 stands dismissed, leave is granted to consider the petition as against Wazir son of Ghulam, respondent No. 3 herein.

Bailable warrants in the sum of Rs.25,000 with two sureties each in the like amount returnable to the District Magistrate, Sahiwal, shall issue against him.

M.I. Leave granted.

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