1990 PLP 272 (SCMR)

Asghar Ali Bhatti, Advocate Supreme Court and Tanveer Ahmad, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 22nd August, 1989. SAAD SAOOD JAN, J.‑‑The respondent was convicted by the Sessions Judge at Bahawalnagar of an offence under section 302, Pakistan Penal Code, and was sentenced to death and to pay a fine of Rs.5,000, for causing the death of his cousin, Dildar Hussain, deceased. On appeal and reference, the High Court maintained his conviction but reduced the sentence of death to imprisonment for life. The father of the deceased seeks leave to appeal against the reduction of the sentence of the respondent.

2. The father of the respondent was married to the sister of the petitioner and by way of exchange the sister of the respondent's father was married to the petitioner. On the morning of the day of occurrence, that is, 13‑3‑1984 the father of the respondent together with his two sons, including the respondent, visited the house of the petitioner with a proposal that his two sons should be married to the two sisters of the deceased and by way of Watta the two sisters of the respondent should be married to the sons of the petitioner. This proposal was not acceptable to the petitioner. The discussions went on till about 1‑00 p.m. when the petitioner sent the deceased to the Dera of a local respectable, Muhammad Bakhsh (P.W.7) to fetch him. Shortly, thereafter the respondent left the house of the deceased. As the deceased was sitting at the Dera of Muhammad Bakhsh (PW.7) the respondent arrived there and struck six or seven knife blows on various parts of his body. The deceased died at the spot. The respondent tried to escape but he was chased and captured with the Chhuri by a number of villagers. The matter was reported at Police Station Bahawalnagar on the same afternoon at 2‑30 p.m.

3. At the trial, the respondent did not deny that he was responsible for causing death of the deceased. He, however, stated that just before the occurrence the deceased had told him that he was a catamite and that for this reason he would not allow his sister to marry him, and, further that as the sister of the respondent was carrying on with one of his cousins, he would not marry her. This enraged him and under grave and sudden provocation he attacked the deceased. He, however, did not lead any evidence in his defence.

4. Before the High Court the learned counsel for the respondent did not challenge his conviction on the charge under section 302, Pakistan Penal Code but merely prayed for the mitigation of sentence. This prayer was granted by the High Court with the following observations:‑ "Even the ocular witnesses do not state what talk took place between Dildar Hussain (deceased) and the appellant which led to this grisly murder. Since that part of the talk is shrouded in mystery, so we take a lenient view regarding the sentence awarded to the appellant in this case." In support of this petition it is contended that it was a case of premeditated murder and the High Court erred in not confirming the sentence of death imposed upon the respondent by the trial Court.

5. After hearing the learned counsel for the petitioner, we are not satisfied that a basis has been made out for interfering with discretion exercised by the High Court in the matter of sentence. It was the case of the prosecution itself that the respondent had attacked and killed the deceased under the instigation of his father and brother. It may be mentioned that they were both tried alongwith him on the charge of abetment but were acquitted by the trial Court. There was no enmity between the deceased and the respondent. The High Court has observed, as noticed above, that the ocular evidence did not disclose what talk had taken place between the deceased and the respondent which led to the present occurrence. On the other hand, the case of the respondent was that the deceased had called him a catamite and also attacked the character of his sister. These were indeed mitigating circumstances which could be taken into consideration for not imposing the capital sentence on the respondent. Leave is, therefore, refused. N.H.Q./N‑220/S Leave refused.