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Petitioner: IHSANUDDIN VS Respondent: STATE
1988 S C M R 954
1988 S C M R 954
Present: Mohammad Haleem, C. J., Nasim Hasan Shah and Shafiur Rahman, JJ
IHSANUDDIN‑‑Appellant
versus
THE STATE‑‑Respondent
Criminal Appeal No.9‑P of 1983, decided on 27th March, 1988.
(On appeal from the judgment and order dated 21‑3‑1983 passed by the Peshawar High Court in Criminal Appeal No.108/1982).
(a) Penal Code (XLV of 1860)‑‑
‑‑‑S.302‑‑Constitution of Pakistan (1973), Art.185(.3)‑‑Sentence‑‑Leave to appeal was granted to consider whether any mitigating circumstance existed for reduction of sentence of accused to life imprisonment.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑S.302‑‑Sentence‑‑Accused was guilty of unwanton behaviour and acted in malice in firing shot at deceased who was unarmed‑‑No justification, held, existed to reduce sentence in circumstances.
J. D . Akbarji, Advocate‑on‑Record for Appellant.
Mian M.Ajmal, Assistant Advocate‑General, N.‑W.F.P for the State
Date of hearing: 27th March, 1988.
JUDGMENT
MUHAMMAD HALEEM, C.J.‑‑Leave was granted only to consider whether any mitigating circumstance existed for the reduction of the sentence of the appellant from death to life imprisonment.
At about 19.30 hours on 20th October, 1975, while the deceased Niaz Ali and his brother Ghulam Ali were passing through Tehsil Bazar, Charsadda, towards their village, the appellant, who was standing near his shop, taunted them saying that "you walk like a Badmash". Upon this Ghulam Ali retorted that they are poor people, and no sooner he said so, the appellant came forward and caught hold of the deceased and gave him two or three slaps. Thereafter, he took out his pistol and fired a shot at the deceased who fell down. He was then taken to Police Station Prang where his statement was recorded at 19.50 hours.
It was stated that three or four days prior to the present incident, there was an altercation between the appellant on the one hand and Zahir Gul and the deceased on the other as the former had forced Zahir Gul to leave the cot on which he was sitting. It is on record that the appellant had given kick blows to Zahir Gul and the deceased retaliated by giving blows and kicks to the appellant. Apart from this, the only other fact that has come on record is that after the taunt was given "the matter got serious during arguments", but no details were stated. The provocation was one sided and there is nothing to show that the deceased or his companions had reacted in an offensive manner. Even the answer given to the taunt was couched in humble words.
Upon examining the record, we are of the view that it was the appellant who was guilty of unwanton behaviour and over and above it, he acted in malice in firing the shot at the deceased who was unarmed.
Accordingly, we see no justification to reduce the sentence and dismiss the appeal.
M.Y.H./I‑28/S Appeal dismissed.