1999 PLP 403 (SCMR)

SH. RIAZ AHMED, J.

Appellant Muhammad Iqbal was tried by the Sessions Judge, Jhang on charge under section 302, P.P.C. for having caused the murder of his wife Mst. Anwar Bibi deceased and on the charge under section 307, P.P.C. for having caused murderous assault upon the mother of his wife, namely Mst. Bakhan. On the first charge he was convicted and sentenced to death and to pay fine of Rs.5,000 or in default thereof to suffer R.I. for a term of 6 months. On the second charge, the appellant was sentenced to R.I. for a period of 7 years and to pay a fine of Rs.2,000 or to suffer another term of 3 years' S.I. The learned Sessions Judge referred the case to the High Court under section 374, Cr.P.C., while the appellant also filed appeal assailing his conviction. Vide judgment dated 23-1-1995 the appeal preferred by the appellant was dismissed and the reference was answered in the affirmative and death sentence was confirmed. The appellant then filed a petition seeking leave to appeal in this Court and vide order dated 2-7-1995 this Court after going through the evidence on record came to the conclusion that the prosecution case as sought to be established through the ocular testimony of P.W.8 Muhammad Anwar, the husband of the sister of the appellant and Mst. Bakhan, the injured eye-witness and Muhammad Nawaz P.W.7 corroborated by the recovery of blood-stained Churri from the possession of the appellant stood proved on the record beyond any shadow of doubt. This Court also observed that the statement of Mst. Bakhan alone, the injured eye-witness could have been sufficient to warrant conviction of the appellant. However, this Court was informed that a minor daughter of the appellant had moved an application before the High Court pardoning the appellant. Leave was, therefore, granted to consider whether in view of one of the heirs, even though she was a minor, having forgiven the appellant, the death sentence could still be imposed.

2. We have heard the learned counsel at length and we are of the view that in view of provisions of sections 306 and 308, P.P.C., Qatl-I-Amd committed by the appellant in this case was not liable to Qisas. The provisions of sections 306 and 308 are reproduced hereunder:

"S.306. Qatl-I-Amd not liable to Qisas.

Qatl-I-Amd shall not be liable to Qisas in the following cases, namely:-- (a) When an offender is a minor or insane: Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas; (b) when an offender causes death of his child or grandchild howlowsoever; and (c) when any Wali of the victim is a direct descendant, howlowsoever, of the offender. S.308. Punishment in Qatl-I-Amd not liable to Qisas etc .

Where an offender guilty of Qatl-I-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat: Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court; Provided further that, where at the time of committing Qatl-I-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir: Provided further that, where the Qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wali other than the offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir. (2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Ta' zir. "

3. The facts of the case disclose that deceased was the wife of the appellant and out of the wedlock a daughter was born and she is Wali of the deceased and is also direct descendant of the appellant. The provisions of section 306-C P. P. C. reproduced above clearly lay down that the offender leaving behind a child is not liable to Qisas. The provisions of section 308 P.P.C. reproduced above clearly lay down that such Qatl-I-Amd being not liable to Qisas, the death penalty could not have been awarded. In this view of the matter, we are of the view that the trial Court as well as the Appellate Court lost sight of these provisions and that is why death penalty was imposed upon the appellant. The sentence of death awarded to appellant is set aside. We are fortified in this view by a judgment of this Court reported as Khalil-uz-Zaman v. Supreme Appellate. Court (PLD 1994 SC 885).

4. The next crucial question arising for determination is as to what would be the punishment in cases of Qatl-I-Amd not liable to Qisas under section 306, P.P.C. The answer to this question is provided in section 308, P.P.C. In cases where the offender is not liable to Qisas or the Qisas is not enforceable, then the offender is liable to Diyat only if there is any Wali other than the offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term up to fourteen years as Ta'zir.

5. In view of this provision, the appellant is liable to pay Diyat because the daughter of the deceased, who had pardoned the appellant is Wali of the deceased. Accordingly, we direct that the appellant shall also pay Diyat as determined by the Federal Government. In addition to the punishment of Diyat, we are also of the view that the appellant had committed the brutal murder and the motive for the commission of the offence was that the appellant did not approve the transfer of half of the land of the first informant to his other daughter and son-in-law. The appellant then picked up a row with his wife, but some guests in the house intervened. The stand of the deceased Mst. Anwar Bibi was that her other sister was also entitled to get the land. On the aforesaid grouse, the appellant felled Mst. Anwat Bibi down from the cot and while strangulating her, he in fact butchered Mst. Anwar Bibi. Since there was hardly I any justification for this brutal murder, we are of the view that in addition to imposition of Diyat under subsection (2) of section 308, P.P.C., the appellant is also liable to suffer R.I. for a term of 14 years. The facts and circumstances do not justify to take a lenient view in this case. Resultantly, this appeal is dismissed with the modification in the sentence. The death sentence awarded the appellant is set aside. The appellant shall now pay Diyat as determined by the Government for the relevant year and in addition to Diyat, he shall also suffer R.I. for a term of 14 years. H.B.T./M-260/S Order accordingly.