ALI HUSSAIN QAZILBASH, J.-- This petition for leave to appeal has been brought by Mureed Ahmad against the judgment and order, dated 17-5-1983 of a learned Division Bench of the Lahore High Court, whereby his appeal was dismissed and the death sentence imposed upon him confirmed.
2. The occurrence in this case took place on 26-3-1979 at 11-30 a.m., report of which was made by Ghulam Hussain P.W. Within half an hour charging the petitioner for the murder of his son Ahmad.
The motive given out was that his son was done to death by the petitioners to avenge the death of his brother Qasim. The trial of the petitioner by the learned Sessions Judge, Mianwali, resulted in his conviction under section 302, P.P.C., vide order, dated 16-4-1980 and he was sentenced to death and a fine of Rs.3,000 which on realization was ordered to be paid to the heirs of the deceased as compensation. The appeal filed by the petitioner against his conviction and sentence in the High Court was dismissed through the impugned order.
3. The learned counsel appearing for the petitioner did not challenge the conviction under section 302, P.P.C. On merits but only submitted that since the petitioner had committed the murder of Ahmad deceased to avenge the death of his brother Qasim who was killed by the complainant side sometimes back, therefore, extreme penalty of death, in the circumstances, would not be justified. Reliance was placed by him on the case of Ajun Shah v. The State PLD 1967 SC 185, Muhammad Aslam v. The State PLD 1985 SC 257 and on the leave granting order, dated 22-10- 1986 of this Court in the case Manak Sher and others v. The State (Criminal Petition for Leave to Appeal No. 138 of 1983).
4. A prayer of lesser sentence on the ground urged above was also made before the High Court but the same was repelled with the following observation: "We have nothing on record to show that either a tradition of taking revenge prevails in the family of the appellant or that, in the circumstances of the case, the appellant was obsessed, out of sense of honor or tradition to take revenge of the death of his brother, from the deceased who was facing trial for it."
We have given our careful consideration to the submission made by the learned counsel for the petitioner and are of the view that the learned Judges of the High Court had rightly turned down the prayer of the learned counsel for a lesser sentence because in order to get the benefit of the principle alluded to by the learned counsel for the petitioner it was of paramount importance that evidence should have been brought on the record to establish that in the earlier case Qasim had lost his life at the hands of Ahmad deceased. Since there is no such evidence, this benefit cannot be availed of and as such no mitigating' circumstance exists for a lesser punishment. The authorities relied upon': by the learned counsel for the petitioner are of no assistance to him in that either they are distinguishable or inapplicable to the facts of his case. The petition has no merits and is dismissed.