1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the Peshawar High Court in Criminal Appeal No. 153 of 1969, dated the 21st September 1970. By this judgment, the appellant's death sentence was confirmed.
2. The appellant was tried by the Additional Sessions Judge, Kohat for the murder of Faqir Khan on the 9th July 1968, and was sentenced to death. He filed an appeal against the said judgment before the Peshawar High Court. The matter was also before the Peshawar High Court on reference. The appeal was dismissed on the 21st September 1970 and the death sentence was confirmed. The appellant filed a petition for special leave to appeal against the said judgment of the High Court and in Petition for Special Leave to Appeal No. 33-P of 1970, this Court granted special leave on the 13th April 1971. Thus this matter is now before us in appeal.
3. Special leave was granted to the appellant to consider only the question whether he was entitled to a lesser sentence in view of the decision of this Court in the case of Ajun Shah v. The State (PLD 1967 SC 185). It was alleged on behalf of the appellant that he avenged the murder of his father and, therefore, was entitled to lesser sentence.
4. The prosecution case is that on the eventful day, at degariwela, Mst. Khial Begum P. W. 5, was present with Imtiaz P. W. 6 at the house of Muhammad Khan at village Yousuf Khel, They noticed the appellant coming out of the Kotha of Muhammad Khan having a tamancha in his hand. It is alleged that Mst. Khial Begum P. W. 5, step-mother of Faqir Khan deceased and Imtiaz P. W. 6, followed the appellant. When the appellant reached near the house of Shado Khan, he came across Faqir Khan deceased. The appellant after having gone to a distance of 2/3 paces turned round and fired a shot at the deceased with tamancha which hit him on the back and he fell down.
5. Mst. Khial Begum and Imtiaz witnessed the occurrence. Zarif Khan and Khoidad reached the spot after the deceased had been mor--tally wounded and fallen on the ground. They gave a chase to the culprit but he managed to escape.
6. The motive for the murder was enmity, which originated about 25 years ago when Arsala Khan, father of the appellant was murdered by Gul Zaman Khan, brother of the deceased. The appellant was arrested on the 10th July 1968.
7. The defence of the appellant was a bare denial. He asserted that he was innocent but produced no evidence in his defence.
8. The prosecution case rested on the testimony of Mst. Khial Begum P. W. 5, Imtiaz P. W. 6 and Zarif Khan P. W.
7. Mst. Khial Begum is step-mother of the deceased. Imtiaz is 12 years' old and is the son of the deceased. They had supported the prosecution case. Zarif Khan had also supported the pro- -secution case. The evidence of these witnesses was accepted by the trial Court and the High Court and in the leave granting order, the evidence of these witnesses was also accepted by this Court. In view of this, the conviction of the appellant is based on proper appreciation of the evidence and there is no ground to interfere so far as his conviction under section 302, P. P. C. Is concerned.
9. The only question that requires consideration is whether the appellant is entitled to lesser punishment in view of the decision of this Court in the case of Ajun Shah v. The State. In the above- mentioned case, it was held as tinder :----- "In a case of murder the death sentence should ordinarily 'be imposed unless the trying Judge for reasons to be recorded by him, considers it proper to award lesser penalty. No doubt, discretion is his and if he exercises that discretion after taking into account all the circumstances, the appellate Court should not interfere. It was, therefore, necessary to consider whether the Sessions Judge or the High Court, in adjudicating that the appellant had forfeited his life by his act, had taken into consideration all the circumstances, surrounding his act.
10. According to the prosecution, the appellant's motive for the crime was to avenge the murder of his father and brother.
11. The appellant belonged to the former Frontier Province where it was a matter of tradition and even family duty to avenge the murder of a father. Such murders were committed in that area out of a sense of honour and self-respect. Since the appellant was a boy his mind had become obsessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a tong& he lost his balance of mind. The time, place and nature of the attack appeared to confirm this."
12. The Court further observed :---- "that a man is after all a creature of his environment. His action, therefore, must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circum--stances may be taken into account for not imposing the extreme penalty. Private revenge cannot be regarded as a mitigating circumstance.
13. The question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty,"
14. It will thus be noticed that private revenge is not to be regard--ed as a mitigating circumstance. In the present case, the appel--lant has not taken his avenge from the person who killed his father.
15. He murdered the brother of the person who killed his father. In these circumstances, he is not entitled to lesser punish--ment. The decision of this Court in the above-mentioned case was considered by the High Court but the High Court did not exercise its discretion in favour of the appellant. This case was distinguished by the High Court on the following observa--tion :---- "Lastly, it was urged that the appellant did not deserve the extreme penalty and in this connection the learned counsel referred to Ajun Shah v. The State (PLD 1967 SC 185). We have considered the question in the light of the pronounce--ment of the Supreme Court in that case, but feel that in view of the circumstances that the appellant took the loaded pistol from the house of Muhammad Khan and immediately on find--ing the deceased going in the street went towards him and after going to a distance of 3 or 4 paces turned round and fired at the victim from behind causing him mortal injury. The appellant is not entitled to lesser penalty provided under section 302, P. P. C."
16. We have considered the reasons given by the High Court and in our opinion, in the circumstances of the present case, the appellant is not entitled to lesser punishment.
17. In the result, the appeal is dismissed.