1. ANWARUL HAQ, C. J.-This petition seeking enhancement the sentence of life imprisonment awarded to the respondent Sheraz Gul for the murder of the petitioner's son Zarawar, is barred by 79 days. In the application for condonation of delay it is stated that this petition was first presented at the Lahore Registry of this Court on the 13th of December, 1979, but it was returned the same day on the ground that it related to the area served by the Peshawar Registry of the Court, and, could, therefore, be filed either at Peshawar or at the main. Seat at Rawalpindi. Thereupon the learned Advocate-on-Record, namely, Mr. Maqbool Ahmad Qadri, sent the petition to Rawalpindi through post along with the paper books, which were received by the Registry at Rawalpindi on 15-12-1979.
2. Although it was received in the criminal branch of the Rawalpindi Registry on 16-12-1979;. It was ordered to be returned to the Advocate-on-Record on 10-2-1980, for re-filing it in accordance with the provisions of the rules, as petitions for leave to A appeal are not permitted to be filed through post, and they had to be filed either by the party in person or by the Advocate-on-Record. It is stated in the application that Mr. Maqbool Ahmad Qadri received the papers a Lahore on 23-2- 1980. He kept the papers with himself apparently for the purpose of contacting the petitioner, and ultimately the petition was refiled at Rawalpindi, in accordance with the rules, on the 13th of March, 1980.
3. From the narration of events as contained in the application of the petitioner, it becomes clear that this is prima facie a case of gross negligence on the part of the Advocate-on-Record originally engaged by the petitioner, namely. Rana Maqbool Ahmad Qadri who should have known that under the rules of this Court the petition had to be filed by the petitioner in person or by his Advocate-on-Record either at Peshawar or at Rawalpindi, and there could be no question of filing the petition at Lahore in the first instance, and then sending it by post to Rawalpindi. The application does not contain any reasons for the further delay that took place on the part of the Advocate-on-Record from the 23rd of February, 1980 to the 13th of March, 1980, when he had been finally apprised of the correct position under the rules by the office of the Supreme Court at Rawalpindi. In these circumstances, we consider that it is necessary to issue a notice to Rana Maqbool Ahmad Qadri to show cause why his name should not be removed from the roll of the Advocate-on-Record for showing gross negligence in failing to file this petition within the time allowed by law. He is directed to furnish his reply within 15 days from the date of receipt of notice.
4. As the delay has occurred primarily due to reasons b.-yond the control of the petitioner, we would condone the same, subject to all just exceptions, and proceed to examine the case on merits.
5. We find that there is still another hurdle in the way of the petitioner, as the petition was dismissed for non-prosecution by a Division Bench of this Court on the 12th of May, 1980. In Criminal Miscellaneous Petition No. 22-R of 1980, it has been explained by Mr. Shaukat Ali, the learned counsel appearing for the petitioner, that his absence on. The date of hearing was not intentional and may, therefore, be condoned. We accept this prayer, recall the order dated the 12th-of May, 1980, and restore the main petition.
6. The incident giving. Rise to this petition, took place on 11-7-1978 in Mohallah Delhi of Mardan City at morning time, and was reported at the Police Station by the deceased himself at 6-45 a. m. He alleged that he was present at his shop when the respondent Sheraz Gal alias Siraj came there armed with a dagger and gave him a stab blow on the chest. He stated that the motive for the assault was that after sweeping his house the res--pondent had thrown rubbish in front of the shop of the deceased, whereupon the deceased had protested. The deceased expired at 10-45 a. m.
7. At the trial, the prosecution placed reliance on the eye-witness account of the incident as given by Khan Muhammad (P. W. 8), and the dying statement of the deceased, as recorded by A. S. 1.
8. Muhammad Ayaz Khan (P. W. 9). The respondent also admitted the incident, but gave an alternative version to the effect that at the relevant time he was present in his house when lie 'heard a noise from outside, where his wife was cleaning the drain. He came out and was told by his wife that the deceased, who was standing in front of his shop had made an obscene signal to her. On hearing this, the respondent proceeded towards the deceased and abused him, whereupon the deceased picked up a knife from his shop, and during the grappling the respondent threw the deceased on the ground when he was injured with his own knife.
9. Both the Courts below have rejected the defence version, and have accepted the account of the incident as given in the dying statement, corroborated by the. Eye-witness account of Khan Muhammad (P. W. 8). However, the learned Judges . In the High Court have taken the view that although the case of the respondent did not fall under any of the exceptions to section 300 of the P.
10. P. C. And the respondent had been rightly convicted under section 302 for the offence of murder, yet in the matter of sentence --the suddenness of the affair was a mitigating circumstance, and for that reason they refused to confirm the death sentence awarded by the trial Court, and `-- instead substituted it by imprisonment for life,. The fine of Rs. 3,600 imposed by the trial Court, as well as the direction to pay Rs. 5,000 as compensation to the heirs of the deceased under section 544-A of the Cr. P. C. Were maintained.
11. The petitioner is not satisfied with the order of the High Court Mr. Shaukat Ali, learned counsel for the petitioner, contends that although only one stab blow was given by the respondent, yet it was intentionally directed at a vital part of the body, namely, the front of the chest, and, therefore, the learned trial Judge had acted rightly in awarding death sentence to the respondent and the learned Judges in the High Court were not justified in interfering with the same. He further submits that the evidence of Khan Muhammad, who is .Admittedly an independent witness, also shows that the respondent was the aggressor, and there were no mitigating circumstances in his favour. 1n support of thes; submissions, the. Learned counsel has referred us to Dost Muhammad v. The State (PLD 1963 SC 285), Sikandar v The State (PLD 1966 SC 555) and Ayub Khan and 2 others v. The State (19.74SCMR324).
12. Before adverting to the facts of this case, it would be advantageous to refer briefly to the precedent cases relied upon by Mr. Shaukat Ali. In the case of Dost Muhammad, the death sentence had been awarded for the offence of killing a stranger, who had merely asked the accused to close his knife, and stop chasing his intended victim. Although a single blow had been delivered by the accused, yet the majority of the learned Judges of this Court took the view that the killing of the deceased was completely unjustified, as the latter was unarmed and had merely exhorted the petitioner to cease the pursuit of one Abdul Samad, and there was not even an altercation or exchange of abuse between the deceased and the petitioner preceding the attack on the deceased. In these circumstances, the majority of the Judges took the view that death sentence was fully justified, although Cornelius, C. J., took a contrary view, as he thought that the deceased had been attacked by the petitioner in the heat off passion, which could be regarded as a mitigating circumstance.
13. The second case mentioned by the learned counsel, namely, that of Sikandar, was a case of sharp and angry quarrel between the two groups, which was followed by a grappling and a fight in which fists blows were axchanged, and it was after this that the knife was used by the accused. In these circumstances it was held that the fact that there was a sudden quarrel followed by a sudden fight could not be ignored, as an element having effect to mitigate the offence in relation to the sentence, and the santence of death was reduced to transportation for life.
14. In the last case of Ayub Khan and 2 others, it was found that the murder was a cold-blooded murder as although there was a sudden quarrel, yet it was not followed by fight and the accused bad intentionally fired from very close range on a very vital part of the body of the deceased, accordingly, there was no justification for imposition of the lesser sentence.
15. The proposition that clearly emerges from the cases referred to by Mr. Shaukat Ali is that it is a question to be determined on the facts of each case whether there are mitigating circumstances in favour of the accused, which would justify the imposition of the lesser penalty. The circumstances of the commission of the crime in the three cases mentioned by the learned counsel are quite dissimilar from each other and it is not possible to arrive at any generalisation of universal application.
16. Examined, in this light, it would appear that the learned Judges in the High Court were not far wrong in observing that it was a sudden quarrel, and that there was an element of provocation on the part of the deceased, as is clear from the fact that he stated in the F. I. R. That he protested to the accused when the latter had thrown rubbish in front of his shop. Even according to the eye-witness Khan Muhammad, he was first attracted bythe noise raised by the deceased' and the respondent, and on coming to the spot he saw that both of them were quarreling with each other. He further stated that, with the help of the other men, he separated the deceased and the respondent, and 10 minutes later the respondent came out of his house armed with a Chhuri, and stabbed the deceased on the chest. From this narration of events it can legitimately be inferred that, at the time he stabbed the deceased, the respondent was still labouring under the agitation generated by his quarrel and grappling with the deceased. This being in the nature of a mitigating circumstance in the matter of sentence, we are not persuaded that the learned Judges in the High Court have committed any error of law, which would require correction by this Court.
17. For these reasons, the petition fails and is hereby dismissed.