1999SCMR2781 (PLP)

KHALIL-UR-REHMAN KHAN, J.

This petition for leave to appeal is directed against the judgment, dated 17-3-1999 of the High Court, of Sindh, Karachi, whereby conviction of the petitioners vide judgment, dated 7-4-1992, recorded by the learned Sessions Judge, Naushero Feroze under section 302/34, P.P.C. was maintained, death sentence awarded to Muhammad Ali, petitioner No. 1, was confirmed and maintained but the sentence of death of Zulfiqar Ali" petitioner No.2 was reduced td imprisonment for life, extending him benefit of section 382-B, Cr.P.C. Both the petitioners were also imposed a fine of Rs.50,000 each or in default to further undergo R.I. for three years each. 2/3rd of the fine, on realization, was directed to be paid to the heirs of the deceased. This sentence of fine appears also to have been maintained.

2. Learned counsel for the petitioners at the very outset sought permission to withdraw the petition for leave to appeal to the extent of Zulfiqar Ali, petitioner No.2. His request is allowed and the petition to the extent of Zulfiqar Ali, petitioner No.2 is dismissed as withdrawn.

3. As regards petition to the extent of Muhammad Ali, petitioner No. 1, learned counsel did not challenge the conviction. He, however, argued that sentence of death should not have been imposed on him as prosecution has not been able to show what exactly happened before the alleged strangulation of the wife as Muhammad Ali, the husband, as per the prosecution story, had acted under the influence of his elder brother Muhammad Anwar who has been acquitted, and the influence so operating merited to be noticed. Learned counsel further submitted that the young age of Muhammad Ali petitioner is another factor requiring notice and sympathetic treatment. Reliance was placed on Sohail lqbal v. The State (1993 SCMR 2377) wherein the record showed that accused was 21 years and eight months old at the time of occurrence but as the trial Court had recorded the age of the accused by appearance as sixteen/seventeen years benefit of such discrepancy in recording the age of the accused was extended to him and his sentence of death was reduced to imprisonment for life in view of his young age at the time of commission of the offence.

4. The precedent cited is distinguishable on facts as the age of the petitioner was admittedly 20 years at the time of commission of the offence implying thereby that he was not minor at that time. The theory advanced while arguing the Petition before us that what had immediately preceded the incident has shrouded in mystery" has no basis on record. No such thing was even suggested to the prosecution witnesses. Even in the statement under section 342, Cr.P.C. no such thing was urged. Muhammad Ali petitioner in his statement under section 342, Cr.P.C. rather took the plea that he had gone one day prior to this incident to his father who is residing at Badah separately from his mother. His brother Zulfiqar was with his wife to the house of the complainant where some marriage was performed and Mst. Farzana, the deceased, finding her alone had committed suicide. It is, therefore, apparent that neither the plea of Ghairat nor the plea that the circumstances preceding the strangulation of deceased lady are shrouded in mystery can even be inferred from the material on record. The petitioner having, with the help of his co-accused Zulfiqar Ali, strangulated his wife has committed a cold-blood murder of his wife and as such is not entitled to be shown any sympathy. He was admittedly 20 years of age at the time of occurrence and, thus, had attained maturity sufficient enough, to hold him responsible for his beastly act. Moreover, in the decided cases, convicts aged 16/17 years have been awarded lesser punishment of imprisonment for life in the presence of other extenuating circumstances like acting to avenge family honour. It is only when there are more than one factors present then cumulative circumstances of the case are kept in view for awarding lesser punishment in appropriate cases. In the instant case no such extenuating circumstances are present.

5. For the reasons given above, learned Courts below were right in awarding death sentence to the petitioner Muhammad Ali, the husband, who caused death of his wife with the help of his brother, the co-accused Zulfiqar. No justifiable reason exists for awarding lesser punishment to the petitioner Muhammad Ali. Leave to appeal is, therefore, refused and the petition is dismissed. N.H.Q./M-345/S Leave to appeal refused.