ASGHAR ALI Versus STATE

SAAD SAOOD JAN, J.‑‑ Asghar Ali, petitioner in this petition for special leave to appeal, as convicted by the Additional Sessions Judge at Vehari of an offence under section 302 of the Pakistan Penal Code for causing the death of Muhammad Rafique deceased and was sentenced to death and to pay fine. On appeal and reference the High Court maintained his conviction and sentence and confirmed the sentence of death. Together with him, one Ghulam Mustafa was also convicted by the trial Court on the same charge but he was acquitted by the High Court.

2. The case of the prosecution was that in the early afternoon of 6‑11‑1981 the deceased and his wife Mst. Naseem were returning from the fields to their house with bundles of cotton. On the way they met the petitioner and Ghulam Mustafa who were hiding in a sugarcane field. The petitioner was armed with 12 bore pistol. At the instigation of Ghulam Mustafa the petitioner fired at the deceased. After the firing both the petitioner and Ghulam Mustafa ran away. The deceased died within a few minutes after he was hit.

3. Although at the trial the petitioner denied that he was responsible for causing the death of the deceased, his counsel a appearing before us no longer takes up this position. .In fact he has not challenged his conviction for the offence under section 302 of the Pakistan Penal Code. He has addressed us merely on the question of sentence. It appears from the evidence that formerly the sister of the petitioner, Mst. Sughran, was married to the deceased. The deceased divorced her three years prior to the occurrence and later married Mst. Naseem. The petitioner had been demanding that the deceased should return the dowry of his sister but the deceased was not prepared to do so. The matter was also taken to the local Punchait. It was not the case of the prosecution that the dowry of Mst. Sughran was not lying with the deceased. There is nothing on the record which may show that the deceased had any good reasons for retaining the dowry. Apparently it was the refusal of the deceased to return the dowry despite persistent demands which was the cause of the occurrence. Since, it was the conduct of the deceased himself that led to the occurrence we do not think that this was a fit case where the penalty of death should have been awarded to the petitioner. Accordingly, after notice to the Advocate‑General and hearing Mr. Muhammad Abdullah Bajwa who has appeared on behalf of the State, we convert this petition into appeal and substitute the sentence of. death awarded to the petitioner with imprisonment for life. The sentence of fine is however maintained. In computing the petitioner's sentence he should be given the benefit of the provisions of section 382‑B of the Code of Criminal Procedure.

M.I./A‑43/S Order accordingly.