IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Dost Muhammad Khan 
Mr. Justice Sardar Tariq Masood 
 
 
Criminal Appeal No. 199 of 2011 
(Against the judgment dated 19.06.2009 passed by the Lahore 
High Court, Lahore in Criminal Appeal No. 171 of 2006 and 
Capital Sentence Reference No. 53-T of 2003) 
 
 
Dr. Irfan Iqbal 
…Appellant 
 
 
 
 
 
 
versus 
The State 
 
     …Respondent 
                
 
 
For the appellant: 
Mr. Aitzaz Ahsan, Sr. ASC  
 
 
 
 
 
Mr. M. S. Khattak, AOR 
 
For the complainant: 
 
Mr. Babar Awan, Sr. ASC 
 
 
 
 
 
Raja Abdul Ghafoor, AOR 
 
For the State: 
Mr. Muhammad Abdul Wadood, 
Deputy Prosecutor-General, Punjab 
 
 
 
 
 
 
Date of hearing: 
 
 
23.11.2016  
 
 
JUDGMENT 
 
 
Asif Saeed Khan Khosa, J.: Dr. Irfan Iqbal appellant was 
booked in case FIR No. 700 registered at Police Station Ganj 
Mandi, District Rawalpindi on 18.12.2002 in respect of offences 
under sections 302, 324 and 1099, PPC and section 7 of the Anti-
Terrorism Act, 1997 and after a regular trial conducted in a 
connected private complaint he was convicted by the trial court for 
an offence under section 7(a) of the Anti-Terrorism Act, 1997 and 
was sentenced to death and to pay a fine of Rs. 3,00,000/- or in 
default of payment of thereof to undergo rigorous imprisonment for 
Criminal Appeal No. 199 of 2011 
2 
one year. The appellant challenged his conviction and sentence 
before the Lahore High Court, Rawalpindi Bench, Rawalpindi 
through an appeal which was dismissed by the said Court and the 
connected Capital Sentence Reference was answered in the 
affirmative. While passing the impugned judgment the High Court 
had additionally convicted the appellant for an offence under 
section 302(b), PPC and had sentenced him to death on that score 
as well besides ordering him to pay compensation to the heirs of 
the deceased. Hence, the present appeal by leave of this Court 
granted on 28.04.2011.  
 
2. 
While granting leave to appeal in this case this Court had 
clearly observed on 28.04.2011 that leave to appeal was not being 
granted for reconsideration of the merits of the appellant’s case but 
leave to appeal had been granted only to examine the following 
questions: 
 
“(a) 
Whether the learned Division Bench of the Lahore High 
Court was right in holding that the appellant was 
sentenced only under Section 7(a) ATA was convicted and 
sentenced under section 302(b) PPC, as reproduced 
hereinabove in para-5 of this order; 
 
(b) 
Whether in the given circumstances and submission made 
by the learned counsel for the petitioner case of the 
petitioner fall within the scope of Section 302(c) PPC; and 
 
(c) 
If the case of the petitioner does not fall within the scope of 
Section 302(c) PPC, whether the sentence of death is 
warranted in this case.” 
 
We have heard the learned counsel for the parties on the said 
aspects of the case at some length and have also perused the 
record with their assistance.  
 
3. 
As regards the first question referred to in the leave granting 
order we have straightaway observed that no charge had been 
framed by the trial court against the appellant in respect of an 
offence under section 302(b), PPC, no conviction of the appellant 
had been recorded by the trial court for the offence under section 
302(b), PPC, no appeal or revision petition had been filed by the 
Criminal Appeal No. 199 of 2011 
3 
State or the complainant party before the High Court seeking 
conviction of the appellant for the offence under section 302(b), 
PPC and admittedly no notice had been issued by the High Court 
to the appellant before convicting and sentencing him for the 
offence under section 302(b), PPC. The provisions of section 
423(1)(b), Cr.P.C. clearly show that a sentence passed against a 
convict cannot be enhanced by a court hearing an appeal against 
conviction and if at all while hearing such an appeal the Court is 
minded to enhance the convict’s sentence then the Court can 
exercise its revisional jurisdiction but in exercise of revisional 
jurisdiction no sentence of a convict can be enhanced without 
notice to him as is evident from the provisions of subsections (2) 
and (6) of section 439, Cr.P.C. Admittedly no such notice had been 
issued by the High Court to the appellant. In this view of the 
matter while answering question No. 1 in the leave granting order 
we hold that the High Court was not justified in this case in 
additionally convicting and sentencing the appellant for the offence 
under section 302(b), PPC while hearing the appellant’s appeal 
against conviction.  
 
4. 
Question No. 2 in the leave granting order is about 
applicability or otherwise of the provisions of section 302(c), PPC to 
the case in hand and in that context we may observe that it has 
been clarified by this Court in the case of Zahid Rehman v. The 
State (PLD 2015 SC 77) that the provisions of section 302(c), PPC 
stand attracted to the cases falling in the Exceptions to the 
erstwhile provisions of section 300, PPC. In this context the 
Exception that came closest to the facts of the present case was 
Exception 1 which dealt with cases of grave and sudden 
provocation and we have noticed that in the case in hand there 
might have been grave provocation offered to the accused party by 
Waseem Hassan deceased and his injured brother namely Asim 
Hassan but at the time of commission of the alleged murder the 
said provocation had no longer remained sudden. According to the 
facts of this case after the appellant’s brother namely Nasir Iqbal 
had been fired at and critically injured by Waseem Hassan 
Criminal Appeal No. 199 of 2011 
4 
deceased and his brother namely Asim Hassan inside the house of 
the appellant and his family in which incident both Waseem 
Hassan deceased of the present case and his brother namely Asim 
Hassan had also received injuries the deceased and his injured 
brother had been removed to a hospital for treatment and the 
present occurrence had taken place inside that hospital when the 
appellant and his father had gone to the said hospital and had 
then caused injuries to Waseem Hassan deceased and his brother 
namely Asim Hassan. It is, thus, evident that the case in hand was 
not a case of an immediate response by the accused party to the 
violence committed or provocation offered by the members of the 
complainant party and there was a gap of time between the two 
incidents. We have, therefore, entertained no manner of doubt that 
the present occurrence was a direct result of the grave provocation 
offered by the complainant party but such provocation was no 
longer sudden at the time of the present occurrence and, thus, 
Exception 1 to the erstwhile provisions of section 300, PPC did not 
stand attracted in its entirety and, therefore, the case in hand did 
not fall squarely within the ambit of section 302(c), PPC.  
 
5. 
The third question mentioned in the leave granting order 
pertains to availability or otherwise of any mitigating circumstance 
for the purpose of reduction of the appellant’s sentence of death to 
imprisonment for life. In the said context the facts of the case show 
that even according to the case of the prosecution itself the 
appellant had reached the place of occurrence, i.e. the relevant 
hospital in the company of his father namely Sheikh Muhammad 
Iqbal and at that time the appellant was empty-handed whereas 
the appellant’s father carried a revolver with him. The FIR as well 
as the statements of the eyewitnesses made before the trial court 
clearly show that it was the appellant’s father who had handed 
over the revolver to the appellant at the spot with a command that 
the appellant should spare none from the complainant party. It is 
evident from such facts asserted by the prosecution that at the 
time of the present occurrence the appellant was acting under the 
influence of his father. Apart from that it has already been 
Criminal Appeal No. 199 of 2011 
5 
observed by us while attending to question No. 2 in the leave 
granting order that the case in hand has been found by us to be a 
case of grave provocation offered by the complainant party to the 
appellant and the other members of his family but the element of 
suddenness in such provocation was missing so as to completely 
attract Exception 1 to the erstwhile provisions of section 300, PPC. 
In a somewhat similar backdrop this Court had observed in the 
case of Ghulam Abbas v. Mazher Abbas and another (PLD 1991 SC 
1059) as follows: 
 
“It has been ruled in a number of cases by the superior Courts 
that in case some of the conditions in the exceptions to section 
300, P.P.C. are substantially satisfied but others are not then the 
least that the Court can do in such a difficult situation is that it 
may award lesser sentence but under the charge of murder; 
because, for acquittal from that charge and conviction for the 
lesser offence under section 304, Part I, P.P.C., all the conditions 
of an exception must be satisfied.” 
(underlining has been supplied for emphasis) 
 
Following the principle laid down in the above mentioned 
precedent case and also keeping in view the conclusion reached by 
us that the appellant had acted at the relevant time under the 
influence of his father we have felt persuaded to reduce the 
sentence of death passed against the appellant to imprisonment for 
life on the charge under section 7(a) of the Anti-Terrorism Act, 
1997.  
 
6. 
For what has been discussed above this appeal is dismissed 
to the extent of the appellant’s conviction for the offence under 
section 7(a) of the Anti-Terrorism Act, 1997, his sentence passed 
for the said offence is reduced from death to imprisonment for life 
and his conviction and sentence for the offence under section 
302(b), PPC are set aside. The order passed by the trial court in 
respect of payment of fine by the appellant as well as the order 
passed in respect of imprisonment in default of payment of fine 
are, however, maintained. The benefit under section 382-B, Cr.P.C. 
Criminal Appeal No. 199 of 2011 
6 
shall be extended to the appellant. This appeal is disposed of in 
these terms. 
 
 
Judge 
 
 
Judge 
 
 
Judge 
Islamabad 
23.11.2016 
Approved for reporting.  
 
Arif 
