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Criminal Appeal No. 36 of 1982, decided on 7th December, 1985. (On appeal from the judgment and order, dated 8‑6‑1980 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 468 of 1978).

‑‑‑Art. 185(3)‑Penal Code (XLV of 1860), S. 302‑‑Sentence‑‑Leave to appeal granted to consider only question of sentence as it .was argued that accused had acted under influence of his father while committing offence of murders.‑‑[Sentence].

‑‑‑S. 302‑‑Sentence‑‑Reduction of‑‑Influence of elders Mitigating circumstance‑‑Plea of exchange of abuses between father of accused and two deceased brothers over former's mare having been left in field of deceased resulting in destruction of crop, held, would‑ not be a mitigating circumstance for imposition of lesser sentence as deceased were aggrieved persons‑‑Accused being aged 30 years could not for that reason be regarded to have acted under influence of his father‑ Evidence not indicating that accused had acted at instigation or behest of his father‑‑Application of principle of influence of elders confined only to offenders of impressionable ages living under influence of their elders.

Sher Hassan v. The State P L D 1959 S C 480 and Mst. Hayat Bibi v. Muhammad Khan and 2 others 1976 S C M R 128 distinguished.

M.B. Zaman, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant.

Ghulam Ahmad, Advocate Supreme Court with S. Abid Nawaz, Advocate‑on‑Record (absent) for the State.

Date of hearing: 7th December, 1985.

‑Leave was granted to consider only the question of sentence as it was argued that Mansha had acted under the influence of his father while committing the offence of murders.

Appellant Mansha was awarded death sentence on two counts alongwith others namely, Shahu, Muhammad Nawaz, Ahmad and Inayat for the murders of Shera and Dosa by the Sessions Judge, Gujranwala by his judgment, dated 25th of April, 1978. On appeal and reference the High Court acquitted Shahu and reduced the sentences of Muhammad Nawaz and Inayat to imprisonment for life. However, it found no mitigating circumstances in the case of Mansha as the Barchhi blows given by him to the two deceased proved fatal.

The learned counsel for the appellant adds another ground as a mitigating circumstance namely that according to the prosecution version there was an exchange of abuses between Shahu father of appellant Mansha on the one hand and Dosa and Shera, real brothers, on the other over the former's mare having been left in the Shaftal field of the deceased for the whole night resulting in the destruction of the fodder. Both these reasons do not appeal to us as a mitigating circumstance for the imposition of lesser sentence. The appellant was aged 30 years when he committed the murders and could not for that reason be regarded to have acted under the influence of his father Shahu. The other reason also shows his own outburst in avenging the grievance which cannot be regarded as a mitigating circumstance when the aggrieved person was deceased Dosa himself whose cultivated field had been destroyed. Besides, nowhere in the evidence there is any indication that he had acted at the instigation or behest of his father. In the circumstances, it will not be proper to invoke the principle of influence of elders which is confined only to offenders of impressionable ages living under the influence of their elders. The murders were brutally committed on a trivial issue and we see no justification to award a lesser sentence.

In Sher Hassan .v. The State P L D 1959 S C 480, the offender was aged about 16 years and four months and had acted on the incitement of his elder brother aged 24 years. This Court set aside the punishment of death holding that "he had acted under the immediate influence and direct orders of his brother" in which case it was considered as a mitigating circumstance. This case is, accordingly, distinguishable and the appellant cannot derive any benefit from it.

The learned counsel relied on Mst. Hayat Bibi v. Muhammad Khan and 2 others 1976 S C M R 128, but this case is hardly helpful to the appellant as although this Court did not interfere with the discretion exercised by the High Court in not awarding the capital punishment for the reason that the offenders had acted under the influence of their father nonetheless their ages are not mentioned and so also the circumstances under which the father had influenced them to commit the offence.

Accordingly, we find no merit in this appeal and dismiss it.

M. I. Appeal dismissed.

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