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Petitioner: ABDULLAH KHAN VS Respondent: STATE
1998 S C M R 2465
1998 S C M R 2465
[Supreme Court of Pakistan]
Present: Zia Mahmood Mirza, Irshad Hasan Khan and Raja Afrasiab Khan, JJ
ABDULLAH KHAN---Petitioner
versus
THE STATE---Respondent
Criminal Review Petition No. 11 -L of 1995, decided on 3rd April, 1997.
(On review from judgment/order of this Court dated 7-6-1995 passed in Cr.P. No. 135-L of 1995).
Penal Code (XLV of 1860)---
----Ss. 302, 306 & 308---Constitution of Pakistan (1973), Art.185(3)---Contention was that the deceased was survived by a daughter aged 2 years at the time of her murder who was the "Wali" of the deceased and also the descendant of the accused and, as such, accused was not liable to Qisas by virtue of S. 306, P.P.C., and he could only be punished with imprisonment extending to 14 years as Tazir as provided under S. 308(2), P.P.C.---Leave to appeal was granted by Supreme Court to examine the said contention.
Zafar. Ullah Khan, Advocate Supreme Court and Abul Aasim Jafri, Advocate-on-Record for Petitioner.
Nemo for the State.
Date of hearing: 3rd April, 1997.
ORDER
ZIA MAHMOOD MIRZA, J.---Petitioner was convicted by the trial Court under section 302, P.P.C. for causing the death of his wife Mst. Nasir Bibi and was awarded de4tth sentence and a fine of Rs.25,000 or in default thereof to undergo S.I. for six months. On appeal, learned Judges of the High Court maintained his conviction but altered his death sentence to one of imprisonment for life. Petition for leave to appeal brought by him in this Court was dismissed vide judgment dated 7-6-1995. Petitioner now seeks review of the judgment dated 7-6-1995.
2. Review petition is stated to be barred by 451 days. Learned counsel for the petitioner has, however, explained that the petitioner filed review petition within the limitation period but it was returned by the Office with an objection which was not tenable. Nonetheless, the petitioner moved an application explaining away so-called delay in filing the review petition. Office took a lot of time in deciding the said application. In the circumstances, the petitioner was not responsible for the delay. We are satisfied with the explanation tendered by the learned counsel. The delay in filing/refilling the review petition is accordingly condoned.
On merits, it has been contended by the learned counsel that the deceased was survived by a daughter Gulnaz Bibi aged 2 years at the time of her murder. The said daughter is the ' Wali' of the deceased and she is also the descendant of the petitioner. He was, therefore, not liable to Qisas by virtue of section 306, P.P.C. and he could only be punished with imprisonment of either description for a term which may extend to 14 years as Tazir as provided in sub section (2) of section 308, P.P,C. This proposition is, prima facie, supported by the provisions of section 306 read with section 308, P.P.C. Judgment/Order dated 7-6-1995 dismissing the petition for leave to appeal is, therefore, recalled and leave is granted to examine the afore-noted contention.
N.H.Q./A-71/S Review accepted/Leave granted.