IFTIKHAR AHMAD alias GULLA and another vs THE STATE and another

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought in these two cross criminal petitions which have arisen out of same murder case. Cr.P. 124-R of 1987 has been filed by the convict; whereby he has challenged his conviction and sentence of life imprisonment under section 302 P.P.C. While in Cr.P. 333 of 1987 the complainant side has challenged the reduction of sentence of death by the High Court. In the very outset the learned counsel for the convict stated that in case the petition for enhancement of sentence is allowed, he would press the petition of the convict also but in case the petition for enhancement is dismissed he would not press the petition against conviction. We, accordingly, made an exception in the order of hearing. Normally in such like cases the counsel for the convict has precedence in the order of hearing.

2. ' The learned counsel for the complainant side has drawn our attention to the reasons which prevailed with the High Court for reducing the sentence. The relevant part of the impugned judgment reads as follows:- 'This brings us to the question of sentence. The appellant and the deceased are teen-agers and lived in the same Mohallah as neighbours. Even if it is admitted that they had quarrelled a month before the instant occurrence, that had become a forgotten story because during the period of one month intervening the two incidents nothing untoward had happened as we think that both of them being neighbours must have come across each other many a time after the first incident. We are, therefore, of the view that the occurrence took place on the deceased having met the appellant per chance near the spot. There is nothing on record that the appellant knew that the deceased had a programme of going to the house of his maternal-grandmother and would pass through the place of occurrence at the relevant time, therefore, we agree with the learned counsel that element of premeditation on the part of the appellant to kill the deceased is absent.

3. Furthermore, both the eyewitnesses were in conversation with each other in Baghwali Street when the deceased had taken turn at the end of Baghwali Street and reached Girjakh Road, when he was attacked by the appellant. According to both the eye-witnesses, they saw the appellant giving two knife blows to the deceased, whereas the medical witness has noted three injuries on the person of the deceased. It means that before the arrival of the witnesses the deceased had already suffered one blow at the hands of the appellant. It is, therefore, reasonable to infer from the facts that the eyewitnesses did not exactly know as to how the occurrence started so the origin of the occurrence remains shrouded in mystery. In these circumstances, we find the appellant as entitled to the benefit of the lesser penalty."

4. ' Learned counsel for the complainant has vehemently contended that as held by the High Court while rendering finding on several controversial issues like self-defence or for that matter application of exception (iv) to section 300 P.P.C. And thus sudden fight, the convict was not entitled to any such benefit. Having done so he further argued that it was somewhat inconsistent view that there was some mitigating circumstance left in the case so as to reduce the sentence.

5. Therefore, the sentence in this case was liable to be enhanced.

6. 'We do not agree with the general proposition as put by the learned counsel for the complainant.

7. Notwithstanding the rejection of the plea of sudden fight or right of self-defence, a case may still be made out depending upon circumstances, for reduction of sentence. In this case leaving aside other reasons which prevailed with the High Court, one has impressed us. There are 3 injuries on the person of the deceased. Eye-witnesses were able to see 2 of them being inflicted. The third one had already been inflicted before they arrived. It means that the occurrence immediately before the said injury was inflicted, was neither seen nor known to anybody. Ordinarily this much omission or absence of facts is not enough to hold that the origin of the attack was 'shrouded in mystery' because after all in every case where there is a motive there is an origin and before that origin something has to remain unknown. The principle of the origin remaining `shrouded in mystery' becomes applicable when there are other attending circumstances which tend to show that there could and might have been something more than what is known to the witnesses or stated by the witnesses; which if it would have been brought to light might have given benefit to the accused in matter of sentence. Such a supposition cannot be imaginary. It has to be real and should have nexus with the established facts of the case. It is only then that a reasonable possibility can and should be assumed and not otherwise. In this case such circumstances do exist.

8. ' The bad feelings between the parties for nearly a month is established. Both parties are young men. The age of the deceased has been slightly understated. Both belong to the same age group.

9. The statement of the accused volunteering and adding something more to the bad blood between the parties and other similar circumstances do indicate that on a chance meeting there was a possibility of one or the other of the two picking up the quarrel which could result in the occurrence as ultimately took place in this case. There could also be, on account of these circumstances, other ancillary causes, reasons and motive which might have emerged during the period of bad feelings.

10. Accordingly in the circumstances of this case it is an important feature thereof that none of the eyewitnesses was able to state as to what happened before the two injuries were inflicted. That being so, there was ample justification for giving a finding that the origin of the attack remained 'shrouded in mystery'. We, accordingly, find no justification for granting leave to appeal in Petition No, 333 of 1987. The same, accordingly, is dismissed.

11. ' After the announcement of the above order the learned counsel for the petitioner in Cr.P. 124-R of 1987 did not press the same. Leave to appeal accordingly, is refused therein also.

12. Leave to .