1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a Division Bench of the former High Court of West Pakistan, Lahore Seat, upholding the conviction of the respondent No. 1 herein under sections 302, 307 and 456, P. P. C, but reducing the sentence under sec--petition 302, P. P. C. From death to transportation for life on both counts, namely, the murders of Mst. Mumtaz Begum and Kamran. The sentences under sections 307 and 456, P. P. C. Were, however, maintained.
2. The reason given by the High Court for not imposing the maximum sentence is as follows:---- "It is a case where the accused had been driven to commit the crime not by his evil and reckless disposition or bad motive but he might have been induced to do it by surrounding circumstances.
3. In this case, there was no premeditation or pre-arrangement and there was no secrecy on the part of the appellant. The evidence on the record shows that the appellant was highly excited at the time of the incident and had committed this crime under a sudden and strong impulse. The circumstances on the record show that he had lost balance of his mind and the sudden impulse proved too strong for him to resist and it was under that impulse that he acted quite abnormally and committed this act in a moment of extreme excitement."
4. The High Court also relied on a decision of this Court in the case of Ajun Shah v. The State (PLD 1967 SC 185) although it held clearly that "the deceased were shot and killed without giving any provocation."
5. Leave was granted in this case to consider whether the circumstances relied upon by the learned Judges of the High Court did in law constitute a mitigating factor for awarding the lesser penalty provided in section 302, -P. P. C.
6. At the time of granting leave on the 10th of February 1969, it was also directed that the "parties shall take expedient steps to make the appeal ready for hearing by the middle of April 1969, on the present record to be supplemented with the printed paper book of the High Court". th of June 1972, under the amnesty granted by Notification No. 14(2) S. O. PrI. 11 (HQ)/70, dated 5-1- 72 issued by the Home Department of the Government of Punjab. The Advocate-on Record for the respondent No. 1 also filed a petition conveying this information to the Court on the 4th of May 1973.
7. Even then the appeal was not brought on to hearing, and on the 7th of January 1974, when the appeal appeared on the list for hearing, a request was put in on behalf of the appellant for an adjournment. Again, on the 18th of February 1974, when the appeal was reposted for hearing, a similar request was put in on behalf of the appellant for adjournment.
8. The result now is that after the reduction of the sentence by the High Court on the 3rd of July 1968, more than five years have elapsed, arid even from the date leave to appeal was granted, five years have passed. In these circumstances, the question arises as to whether, apart from any other consideration, this appeal should be allowed to succeed, after the respondent has had an expectation of life for over five years.
9. It has been the consistent practice of this Court tot to infarct the maximum penalty under section 302, P. P. C. Where such lapse of time has taken place even when in an appeal this Court has altered the conviction recorded by the High Court under section 304, P. P. C. To one under section 302, P. P. C. Thus, in the case of Ghulam Hussain v. Zainullah (PLD 1961 SC 230) the Court, after coming to the conclusion that the act of the respondent clearly fell to be punished under section 302, P. P. C., did not impose the capital sentence, in view of the length of time which had elapsed since the occurrence and the intervening incidents, in particular as a result of the decision of the High Court which had given the respondent Zainullah "a full expectation of life". Similarly in the case of Ghulam Muhammad v. Muhammad Sharif (PLD1969 SC 398), where this Court, after setting aside an order of acquittal passed by the trial Court and main--tained by the High Court by dismissing an appeal against acquittal under section 417, Cr. P, C. In limine, convicted the respondent under section 302, P. P. C. On the 6th of June 1969, the sentence of death was not imposed, because, the respondent "was given expectation of life as far back as 12-5-1966 when the trial Judge passed the order of acquittal".
10. Even recently, in the case of The State v. Rab Nawaz (PLD 1974 SC 74) the respondent Rab Nawaz, after setting aside the order of acquittal passed by the High Court in his favour, was convicted under section 302, P. P. C. But the sentence of death was not imposed, even though it was found that "the sentence of death imposed on Rab Nawaz by the learned Sessions Judge was amply justified", in view of the fact that "the incident took place as far back as August 1964" and the respondent was acquitted on appeal by the High Court on 2-11-66. The appeal was decided in this Court on the 17th October 1973.
11. Without going into the question as to whether the suit filed by the respondent in the Court of the civil Judge, Ahmadpur East, Bhawalpur for a declaration to the effect that he was entitled to the remission of two months per year in the sentence imposed upon him and for a mandatory injunction that he be released immediately in pursuance of the notification earlier referred to was maintainable or not, we are satisfied that, by reason of the delay which has occurred in bringing this appeal up for hearing largely on account of the appellant's own procrastination, this is, not a fit case in which, even if we take the view that the reasons given by the High Court were unjustified, we would, having regard to the consistent practice of this Court, still inflict the sentence of death.
12. This appeal is accordingly dismissed and the sentence of transportation is confirmed.