GULISTAN KHAN and another vs THE STATE
This matter arises from a petition for leave to appeal filed by Gulistan Khan and another against the order of the High Court maintaining their conviction under Section 304 Part II and Section 323 read with Section 34 of the Pakistan Penal Code 1860, and their sentence of ten years' rigorous imprisonment for culpable homicide not amounting to murder in connection with the killing of Sardar Khan, alongside sentences for causing injuries. The core legal question raised is whether the petitioners, who acted under the influence of their uncle and co-accused Sher Zaman, are entitled to a reduction in their sentence as an extenuating circumstance. The Supreme Court of Pakistan held that no case was made out to interfere with the conviction of the petitioners, maintaining the same. However, upon considering the argument that the petitioners acted under the influence of the main accused, the Court granted leave to appeal specifically to consider the question of whether the petitioners are entitled to a reduction in their sentence of imprisonment. The key principle laid down is that the subordinate role or influence of co-accused under a main offender may serve as an extenuating circumstance warranting a re-examination of the quantum of sentence.
- Can a conviction under Section 304 Part II read with Section 34 of the Pakistan Penal Code 1860 be maintained when the petitioners fail to demonstrate any legal infirmity in the findings of the lower courts?
- Does acting under the influence of a main co-accused uncle constitute an extenuating circumstance warranting the grant of leave to appeal for reduction of sentence?
- Section 302, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
- Section 323, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' ALI HUSSAIN QAZILBASH, J.--Gulistan Khan and his brother Qamar Zaman petitioners and their uncle Sher Zaman were charged under section 302/34, P.P.0 for the murder of Sardar Khan. After the trial, the three accused were convicted under section 304 Part II and section 323 read with section 34, P.P.C. By the Additional Sessions Judge, Rawalpindi, who vide his order dated 10-1-1980 sentenced them to ten years' R.I. Each for the murder of Sardar Khan. They were also sentenced to one year's R.I. Each for causing injuries to Muhammad Yousaf (P.W.7), Mst. Irshad Begum (P.W.8) and Mst. Anwar Jan (P.W.9). On appeal by the petitioners and Sher Zaman, the High Court vide its order dated 7-3-1989 maintained the conviction of the petitioners and Sher Zaman, it also did not interfere with the sentence of imprisonment awarded to the petitioners but reduced the sentence of Sher Zaman under section 304, Part II, P.P.C. One from 10 years to 5 years' R.I. A fine of Rs,10,000 or in default one year's R.I., was also imposed upon him.
2. In this petition for leave to appeal the petitioners have impugned the above order. We have heard the learned counsel for the petitioners in support of this petition. He has not been able to make out any'case for our interference as to the conviction of the petitioners for the offences charged with. The same is, therefore, maintained.
3. As for the sentence, it has been strenuously urged that the main accused in the case was Sher Zaman and the petitioners being the nephews of the said Sher Zaman had acted under his influence, hence extenuating circumstance does exist, warranting the reduction in the sentence of the petitioneRs,
4. After hearing the learned counsel we grant leave to the petitioners to consider whether in the circumstances they are entitled to the reduction in the sentence of imprisonment.