P L D 2001 Quetta 88 (PLP)

TARIQ MAHMOOD, J.

Judgment dated 27th July, 2000 passed by learned Sessions Judge, Usta Muhammad has been assailed in the instant appeal whereby; appellant has been found guilty under section 302(a), P.P.C. for murder of Kandera son of Essa Khan and Mst. Gul Hira wife of Pehalwan and sentenced to death on each count and fine of Rs.50,000, in default to further suffer R.I. for six months. He has also been ordered to pay Diyat amount of Rs.2,70,000 each to the heirs of deceased Kandera and Mst. Gul Hira. The learned Sessions Judge has also sent Murder Reference for confirmation. The case of prosecution in brief as reflected from F.I.R. No.8 of 2000 (Exh.P/1-A) registered at Police Station Baghtail, Gandakha on 10th March, 2000 in pursuant to complaint of Sadora Khan (P.W.1) is that on the eventful day he alongwith his brother Kandera went to see Pehalwan Khan (accused), his father-in-law. Alleging further that his mother-in-law Mst. Gul Hira was present in the house and on query, informed that he had gone for cultivation. His mother-in-law started preparing lunch and complainant alongwith his brother were sitting in the room. After a while, his father-in-law came back and after enquiring each other health he went outside to attend call of nature. At about 12-30 noon, he heard fire reported from the house of his father-in-law, rushed and saw his brother Kandera and mother-in-law Mst. Gul Hira in pool of blood. Alleging further that his father-in-law Pehalwan Khan was armed with shot gun and told him that he had done them to death on account of Siahkari. The accused also warned the complainant to keep away, otherwise, he would meet the same fate and thereafter fled away. According to complainant, as he was empty-handed, therefore, was helpless. Also that on hearing fire shots, Mir Khan son of Hamza Khan and Dad Muhammad son of Motia Khan also came there, who had been left at the spot to take care of dead bodies. The complainant alleged that accused had unjustifiably and on false accusation killed his brother Kandera and mother-in-law Mst. Gul Hira. It appears that police after receipt of information, registered the case and proceeded towards the place of incident. Daim Khan (P.W.6) took up the investigation, inspected the place of Wardat (Exh.P/6-B), prepared the site plan of murder (Exh. P/6-A), Marg report of deceased Gul Hira (Exh.P./6-C), Marg report of deceased Kandera (Exh.P/6-D). Statements of witnesses were also recorded. Dead bodies were sent to hospital, secured the blood-stained earth of deceased Kandera (Exh.P/6-E). Similarly blood stained earth of deceased Mst. Gul Hira was also taken into possession vide inventory memo. (Exh.P/6-E). Also four empties of .12 bore shot gun were recovered from the place of incident vide inventory memo. (Exh.P/6-G). Blood-stained clothes of deceased Kandera (Exh.P/3-A) and blood-stained clothes of deceased Mst. Gul Hira (Exh.P/3-B) were also taken into possession. Accused was arrested on 13th March, 2000. During investigation accused made disclosure that he could effect recovery of crime weapon and pursuant to such disclosure crime weapon (Article P/8) and its lic6nce were recovered and memo. prepared as Exh.P/3-C, Dead bodies were sent to hospital. Post-mortem conducted. Dr. Nisar Ahmed (P.W.2) found following injuries on the person of deceased Mst. Gul Hira:-- "1. 1/8" in diameter entrance wound on the anterior right side of chest Exit.l-1/2" in diameter to the back of chest. Both injuries blackened. Walls, ribs and cartilages: Injured. Pleaurae: Injured. Larynx and tracheae: Injured. Right lung: Injured. Pericardium and heart: Injured. Blood vessels: Injured. All the organs of the abdomen were found healthy. REMARKS BY THE MEDICAL OFFICER. A 35 years' female dead body, in my opinion the death occurred due to injury of right lungs blood vessels and also injury to fracture larynx. The injuries were ante-mortem in nature. The weapon used fire-arm. Probable time between injury and death: Instantly. Probable time between death and post-mortem: 3 hours:" Similarly, following injuries were found on the person of deceased Kandera:-- "(1) 1/8" in. diameter entrance wound on the back side of the neck. (left side) Exit 1 " in diameter to right side of neck. (2) 1/2" in diameter entrance wound on the anterior side of abdomen Exh.l-1/2" in diameter to the left side of abdomen (blackened). All the organs of the thorax were found healthy. Walls: Injured. Peritoneum: Injured. Diaphragm: Injured. Stomach and its contents: Injured. Small intestines: Injured. Large intestines: Injured. Liver: Injured. Spleen: Injured. The deceased was middle age man, in my opinion the death occurred due to stomach, intestines, liver, kidneys and also its blood vessels, The injury was ante-mortem in nature. The weapon used: fire-arm. Probable time between injury and death: Instantly. Probable time between death and post-mortem: 4-1/2 hours." After finalization of investigation, challan (Exh.P/6-H) was submitted in the Court of learned Sessions Judge, Usta Muhammad against appellant. It may be added that crime weapon, empties, blood-stained earth and blood-stained clothes of deceased were sent to Expert. Reports of F.S.L. (Exh.P/6-J) and Ballistic Expert (Exh.P/6-L), and which is in positive, were also submitted vide challan (Exh.P/6-K and Exh.P/6-M). At the commencement of trial, learned trial Court framed charge under section 302, P.P.C. against appellant to which he pleaded not guilty, whereupon prosecution examined six witnesses. P.W.1 is Sadora Khan, an eye-witness/complainant but declared hostile. However, he produced F.I.R. Exh.P/1-A. P.W.2 Dr. Nisar Ahmed, who conducted post-mortem of two deceased and produced his report Exh.P/2-A and Exh.P/2-B. P.W.3 is Ghulam Abbas, he is witness to disclosure and recovery of shot gun on the pointation of accused (Exh.P/3-C). In his presence blood-stained clothes of both the deceased were taken into possession vide Inventory Exh.P/3-A and Exh.P/3-B. P.W.4 is Mir Khan, a witness of strong circumstantial evidence but declared hostile. P.W.5 is Dad Muhammad, a witness of strong circumstantial evidence but declared hostile. P.W.6 is Daim Khan, the Investigating Officer. He produced site plan (Exh.P/6-A), Inspection note (Exh.P/6-B), Marg report of deceased Gul Hira (Exh.P/6-C), Marg report of deceased Kandera (Exh.P/6-D). Recovered blood-stained earth beneath deceased Kandera (Exh.P/6-E), inventory of blood-stained earth beneath deceased Mst. Gul Hira (Exh.P/6-F. Inventory regarding recovery of empties of shot gun from the spot (Exhs.P/6-G. He has also tendered F.S.L. Report (Exh.P/6-J) and report of Ballistic Report (Exh.P/6-L) and which is in positive. Challans Exh.P/6-H, Exh.P/6-K arid Exh.P/6-M) were also submitted. The accused when examined in his statement under section 342, Cr.P.C. admitted the occurrence but on account of grave and sudden provocation. It would be appropriate to reproduce relevant questions and answers given by the accused:-- Q. No. 1: Is it fact that on 10-3-2000, at about 12-30 noon, you intentionally fired upon Mst. Gul Heera and Kandera Khan due to which they sustained injuries and died over there? Ans.: Yes but they were committing Zina at that time. Q.No.2: Is it a fact that on the voice of fires complainant Sadora rushed there and saw you having a shot gun, in your hands and both the dead bodies were lying there? Ans.: It is correct. Q. No 3: Is it a fact that you said that you have declared them Siyah Kar and murdered them with the fire of shot gun? Ans.: Yes it is correct. Q.No.6: Is it a fact that Police arrested you on 13-3-2000? Ans.: Yes. Q. No.7: Is it a fact that on 23-3-2000, Police recovered a Single Barrel shot gun alongwith Licence copy on your pointation from your house vide recovery memo. Exh.P/3-C, produced before this Court? Yes., Q No. 17: Is it a fact that Arms Expert Report received from Karachi positive and produced before this Court as Exh.P/6-L through the challan Exh. P/6-N? Ans. I have no knowledge. What else you want to say? Ans: I saw them committing Zina and killed them under grave and sudden provocation. He neither opted to appear as his own witness within the purview of section 340(2), Cr.P.C. nor led any evidence. At the conclusion of trial, the learned trial Court convicted and sentenced appellant as mentioned hereinbefore. We have heard Mr. Javed Iqbal, learned counsel for appellant and learned Assistant Advocate-General and have also gone through record of the racy Learned counsel for appellant has argued that there is no evidence on record to connect the appellant with the commission of offence except his admission under section 342, Cr.P.C. but it is to be accepted in its entirety, and therefore, appellant deserves acquittal. Also that case of appellant falls under section 308, P.P.C., in that, the daughter (wife of P.W.1) is also daughter of the appellant and one of the Walis of victim i.e. his brother (P.W.1) waived his right of Qisas. Learned Assistant Advocate-General on the other hand supported the conviction and maintained that as the accused had failed to prove his plea, therefore, trial Court has rightly awarded him death sentence on both the counts,. It may be seen that there is no evidence on record to connect the appellant with the commission of offence except recovery of crime weapon at his instance, securing of empties from the spot and report of expert which is admittedly in positive but this piece of evidence can be used for the purpose of corroboration only. Even otherwise the accused has not disputed the same in his statement under section 342, Cr.P.C. As against this there is an admission by the appellant but qualified. Accordingly the questions for consideration are:-- (1) Whether statement of accused has to be accepted or rejected in its entirety? (2) What offence, if any, has been made out? On the first' question, Hon'ble Supreme Court has consistently held that where the prosecution evidence is not available or stands rejected in its totality, the statement of accused has to be accepted in totality and without scrutiny. Reference may be made to the case of Faiz v. The State (1983 SCMR 76). This view was reaffirmed in Sultan Khan v. Sher Khan (PLD 1991 SC 520). Respectfully following the above view, we accept the statement of accused in its entirety particularly in the absence of any substantive evidence on record. But before adverting to second question, a few words about 'Honour Killing' as learned counsel for appellant after reading few lines from Holy Book, proudly and with great vehemence argued that act of appellant has not only sanction of Islam and law but on account of Customary 'Ghairat', as well. The thinking is not only most unfortunate but also demonstrates lacks of knowledge. What kind of world is it we live in where horrifying crimes such as 'Honour Killing' are not merely given cover under law and custom or in the name of religion, but often perpetrated. One step forward has been followed by several steps back. Victims of violence by male family members, sold or exchanged in marriage, killed in the name of honour for the crime of exercising control over their own lives and all this is being done in the name of Islam, Custom and Law. Before Islam, women were treated as a commodity but Islam granted them equal status. But even in 2001, the men in our society enjoys a special status. However, instead of making term generous, this preferential treatment serves a deep-rooted contempt for the female sex. Take the example of this case. Allegations are that deceased Kandera Khan was committing Zina at about noon time with mother-in-law of his brother. Even if it is believed, the question is, whether lady was also involved in the same dirty business. But just imagine helplessness of a Judge that in this case he cannot think or consider, whether the version is probable or not, it should at all be believed or not. Whether it is possible that Kandera Khan, who had accompanied with his brother and had come all the way to meet appellant, could so instantly and easily develop an illicit relationship with a woman, who is none other but mother of his Bhabhi. Whether it would not encourage cold-blooded 'Double Murder' in the garb of "Honour Killing' and violence against women, despite the fact that in most of the cases, the act has been misused for gaining property, demanding the hand of a woman of choice, settling old scores and for personal vendetta. Also whether leniency shown by the Courts have not substantially increased the killing in the garb of 'Ghairat'. Whether life can be taken away in Islam or law, on the basis of mere accusation or rumours or speculations. Whether Siah Kari or Karo Kari has nothing to do with teaching of Islam. What the idea behind strict evidential prerequisites for punishing adultery was in Islam. Why the society gives honour to offender, in such cases and disgraces the victim's family. Whether it is novel way to get away tribal enmity. Why the police or Investigating Agency treats the matter as formality, in that, truth can be discovered, as a result of proper investigation. Whether F.S.L. can play its part to falsify the accusation. What our internal obligations are. Whether so-called customs should be given preference over basic human rights of women to live with dignity and without fear. But since society is not treating it as an offence, therefore, no body tried to discover the truth. We have no option but to believe it because there is no other evidence to contradict part of his statement, may be due to incompetency or inefficiency of Investigating Officer or people do not come forward to depose the truth and may be for justified reason but the law is that in the absence of any other evidence, statement of accused should be accepted in totality and without scrutiny. We should not bother in such cases, why our society is not giving due rights to women. And whether prevailing social interaction and Codes of Conduct in Pakistan can be described by a term as elevated as "Society". Whether a mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation. Whether it would not amount to give licence to people to kill others. And why the Senate failed to pass the resolution condemning 'Honour Killing' (Refer Samia's case). And above all, when Injunction of Islam as revealed in Surah-Al-Noor requires that those who accuse their wives and have no witness, should testify four times, bearing Allah to witness that he is of those, who speaks the truth and what the Holy Prophet (p.b.u.h) did in the case of Owamer Liljani. Also that section 340(2), Cr.P.C. provides opportunity to accused to make deposition as a witness on Oath and state truth and help the Court to discover truth but same was not availed, and under the law he cannot be compelled. Here we can do no better but to reproduce following observations of Muhammad Afzal Zullah, J. in the case reported as PLD 1983 SC 32:

Administration of justice

No place for old notation in the present set-up of administration of criminal justice that accused can tell a lie

Demands of present Constitutional and Juridical set-up in Pakistan highlighted

Accused's duty to help Court to discover truth stressed

Need of evolution of new culture of criminal litigation in true spirit of the present legal Constitutional, Juridical and Islamic ethoes tending to open new avenues of protection of the accused's interests and to develop new philosophy of sentencing, emphasized. Under the present Constitutional and Juridical set-up in Pakistan the old notion so-called for the entitlement of an accused person to tell a lie and divert the Court in wrong channels of inquiry, cannot be accepted. Particularly when the amended 1 w provides abundant opportunity and scope for the accused to make deposition as a witness and also to state truth in that capacity. While expecting all benefits from the Court to follow the presumption of innocence till proved guilty, the accused cannot be absolved of his duty to help the Court to discover the truth if need be by appearing as a witness of himself and divulging the truth. If this culture of criminal litigation get, evolved in true spirit of present legal Constitutional, Juridical and Islamic ethoes, new avenues of protection of the accused's interest would open. This aspect can and would particularly be highlighted by the Courts in developing a new philosophy of sentencing. In this sphere the total denial by an accused who in reality participated in crime often remains deprived of the legitimate benefits in the area of sentencing. When new orientation and opportunity afforded to the accused persons by the change in the system has not been fully availed of by the accused side in the administration of criminal justice the concerned quarters might pay some attention to the awareness and guidance procedures for the benefit of the persons accused of the criminal offences, who may file review applications, formal or for suo motu exercise. " It may also not be out of context to point out that P. W.1 (brother of Kandera Khan) was allegedly an eye-witness alongwith two others (P.W.4 and P.W.5) who statedly and immediately arrived at the place of incident on hearing fire reports but all turned hostile, to save a man. Also that during trial an attempt was made to get the appellant acquitted on the, ground that deceased Kandera was unmarried and survived by his brother alone (P.W.1), who had forgiven him in the name of ALLAH. And deceased Mst. Gul Hira was survived by her brother Mashooq Ali and appellant himself and further that Mashooq Ali had forgiven him again in the name of Almighty Allah. False certificates of Warasat were also issued by Executive Authorities. But later enquiry revealed that deceased Kandera was not only married but left behind widow, three daughters and a minor son namely Ejaz (who excludes the authority of P.W.1 to compromise, being not a legal heir). Similarly, Mst. Gul Hira was survived by children including wife of P.W.1. But no, there are not rights of women or children, despite guaranteed by the Constitution. Even near and dear of deceased suppress evidence and depose falsely and when accused earns acquittal, people blame Judges and forget that their hands are tied and they decide on papers. It is high time and people must woke up from slumber and make Jihad for speaking the truth as we have already entered in the twenty first century with the pride of 'Honour Killing'. We need a more tolerant society and everybody should play his role, Reverting to second question, it may be seen that in this case, the trial Court recorded conviction of the appellant under section 302(4), .P.P.C. i.e. Qatl-i-Amd punished with death as Qisas. We are, however, of the view that trial Court has seriously erred in recording conviction under section 302(4), P.P.C. as proof in this case against the appellant is not available in either of the forms specified in section 304, P.P.C. It may be seen that appellant has not made confession of Qatl-i-Amd, as such, before the Court. Although there is admission of killing by the appellant of two deceased but that admission is to be treated not m isolation of but in conjunction with his specific plea that he was provoked and it was an act of grave and sudden provocation. That being so the question for consideration is, what offence if any is made out. In this regard it would be advantageous to reproduce following observations of Muhammad Taqi Usmani, J. in the case of Federation of Pakistan. v. Gul Hassan PLD 1989 SC page 633 Relevant pages 674 and 675:-- The same came up for consideration before Hon'ble Supreme Court in the case of Abdul Haq v. State reported in PLD 1996 SC page and it was held by Ajmal Mian, J. (as his lordship then was) "that clause (c) of section 302, P.P.C. is limited to cases mentioned in section 306, P.P.C." Same view was taken by Manzoor Hussain Sial, J. in a separate note that clause (b) of section 302, P.P.C. is applicable to the case of grave and sudden provocation. It was also held that clause (c) of section 302, P.P.C. is not relevant in such cases as the same is not covered by section 306, P.P.C. However, in another case reported as PLD 1996 SC 274, Fazal Karim, 3 was of the view "that the class of cases to which clause (c) of section

302. P.P.C. applies is different from the cases enumerated in section 306, P.P.C. and punishable under section 308, P.P.C. and that clause (c) of section

302. P.P.C. is not limited to cases enumerated in section 306, P.P.C., and punishable under section 308, P.P.C.". It was further held that "As to what are the cases falling under clause (c) of section 302, P.P.C. the law-maker has left it to the Courts to decide on a case to case basis. But keeping in view the majority view in Gul Hassan's case PLD 1989,SC 633, there should be no doubt that the case covered by the Exceptions to the old section 300, P.P.C. read with the old section 304, thereof, are cases which were intended to be dealt with under clause (c) of the new section 302, P.P.C. finally controversy came up for consideration before seven Judges of Hon'ble Supreme Court, in the case of Abdul Zahir v. State (2000 SCMR 406) and the view taken by Fazal Karim, J, in the case of Ali Muhammad (PLD 1996 SC 274) that class of cases to which clause (c) of section 302, P.P.C. applies is different from class of cases enumerated in section 306, P.P.C, and punishable under section 308, P.P.C. was endorsed. It would be instructive to reproduce the relevant ortion of the judgment on the point:-- "Prima facie t e cases covered by clause (c) of section 302, P.P;C. are of Qatl-i-Amd; (1) where according to the Injunctions of Islam the punishment of Qisas is not applicable but not falling within the ambit of section 306, P.P.C. punishable under section 308, P.P.C.; (2) Qatl-i-Amd to which clause (b) of section 302, P.P.C. is attracted, namely, Qatl-i-Amd wherein proof in either of forms specified in section 304, P.P.C. is not available is punishable with death or imprisonment for life, by way of Tazir. The use of the word 'or' at the end of clause (b) of section 302, P.P.C. reinforces this interpretation. In other words, it is a class of Qatl-i-Amd which is not punishable with death as Qisas or death or imprisonment for life by way of Tazir but is liable in the matter of punishment to imprisonment of either description for a term which may extend to twenty-five years. Some of those cases have been noticed in the precedent of Muhammad Hanif (1992 SCMR 2047), Ali Muhammad (PLD 1996 SC 274), and that of Muhammad Mumtaz Khan's case (supra) to a larger extend of minority and lesser extend of 'provocation'. " ,;,However, it has also been laid down that by and large all the cases of grave and sudden provocation would not ipso fecto fall within the purview of section 302(c), P.P.C. particularly those of Qatl-i-Amd of wife, sister or other very close female relatives at the hands of males on the allegation of "Siyah Kari". In this context their lordships not only made reference of observations of Moulana Muhammad Taqi Usmani hereinbefore referred but also referred to an Article authored by Professor Rafi Ullah Shahab, a religious scholar, published in Daily "The Nation". The learned Scholar after referring Verse 35 of Surah Al-Ahzab, Verse 228 of Surah AI-Baqrah, Surah AI-Noor and Hadith of Holy Prophet (p.b.u.h.) has opined that husband cannot divorce his wife even on the charge of immorality. He has to prove the charge in an Islamic Court and those who accused their wives and have no witnesses except themselves, let them testify four times bearing Allah to witness that he is of those who speak the truth. It would be highly instructive to reproduce Surah XXIV (NUR), Verses 4 to 9 from the Holy Book:-- (4) And those who launch A charge against chaste women, And produce not four witnesses, (To support their allegation), Flog them with eighty stripes; And reject their evidence Ever after: for such, men Are wicked transgressors. (5) Unless they repent thereafter And mend (their conduct): For Allah is Oft-Forgiving, Most Merciful- (6) And for those who launch A charge against their spouses, And have (in support) No evidence but their own, Their solitary evidence (Can be received) if they Bear witness four times (With an oath) by Allah That they are solemnly Telling the truth. (7) And the fifth (oath) (Should be) that they solemnly Invoke the curse of Allah on themselves if they Tell a lie. (8) But it would avert the punishment from the wife, if she bears witness Four times (with an oath) By Allah, that (her husband) is telling a lie; (9) And the fifth (oath) Should be that she solemnly Invokes the wrath of Allah On herself if (her accuser) Is telling the truth." The learned author concluded in the following words:- "Thus, while killing accused women is not Islamic by any standard, the believers are not even allowed to divorce them without establishing their accusation. We profess our love for Islam and demand its enforcement in the country but ignore clear Qur'anic Injunction about the rights of woman: Dozens of innocent women are slaughtered in the name of honour in our society. Almighty Allah eliminated the evil of the Jahiliah period, and thus, no case of 'honour' killing was reported in the early period of Islam." We think that observations of Hon'ble Supreme Court that by and large all the cases of grave and sudden provocation would not ipso facto fall under section 302(c), P.P.C. particularly those of wife, sister and other female relatives on the allegation of "Siah Kari" were made due to most unwarranted and shocking practice of "double murder" in the name of so -called "honour killing", particularly in this part of country. And it is for such reason that Hon'ble Supreme Court in the case of Rasool Bakhsh v. The State reported in 2000 SCMR 731 observed that "even otherwise, murder cannot be committed on the round of Siah Kari. Notwithstanding such allegation, murderer is to be punished with death unless there are mitigating circumstances to justify imprisonment for life," The Hon'ble Supreme Court to a recent case reported as PLD 2001 SC 96 also observed as under:- Legally and morally speaking, nobody has any right nor can any body be allowed to take law in his own hands to take the life of any body in the name of 'Ghairat'. Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law custom or usage in that respect is void under Article 8(1) of the Constitution. Applying the principles laid down in Abdul Zahir's case (supra), we I accept the statement of accused in its entirety and convert his conviction for I murder of Kandera son of Essa Khan under section 302(a), P.P.C. to one under section 302(c), P.P.C, and award him R.I. for twenty-five years. We are of the view that nobody has any right nor can anybody be allowed to take law in his own hand in the name of ' Ghairat' Accused does not deserve any leniency and is awarded twenty-five years' R.I., despite the fact that section 302(c), P.P.C. says, "may extend to twenty-five years". As mentioned hereinbefore, it has been held in the case of Rasool Bakhsh v. State that murder cannot be condoned on the ground of Siah Kari or Karo Kari. Relevant observations are reproduced below:-- "Therefore, there was no justification for any concession other than the one already allowed to the appellant. Even otherwise, murder cannot be condoned on the ground of Siah-Kari. Notwithstanding, such allegations, murder is to be punished with death unless there are mitigating circumstances to justify imprisonment for life, the appellant in this case has already been dealt with leniently by receiving the lesser punishment of imprisonment for life." It may not be out of context to point out that learned counsel for appellant argued that as one of the heirs of deceased Kandera i.e. brother of deceased Kandera (W.P.1) had already waived his right of Qisas, therefore, appellant is liable under section 308, P.P.C. The argument is misconceived. As mentioned hereinbefore enquiry revealed that he was married and left behind a widow, three daughters and a minor son namely Ejaz. So P.W.I has no right of Qisas and section 308, P.P.C. is not applicable in this case. However, it may be noted that appellant has been awarded death sentence on two counts. Deceased Mst. Gul Hira is wife of accused. Under section 306, P.P.C. Qatl-i-Amd shall not be liable to Qisas when any Wali of the victim is a direct descendant of the offender and under section 308, P.P.C. when offender is guilty of the Qatl-i-Amd is not liable to Qisas, he shall be liable to Diyat determined by the Court and may, having regard to the facts and circumstances of the case, be punished with imprisonment which may extend to 14 years as Tazir. It may be seen that P.W.1 Sadora Khan, is the son-in-law of appellant. Admittedly his wife i.e. daughter of appellant is alive. There are other legal heirs of Mst. Gul Hira. Record reveals that during trial a compromise was submitted and Mst. Gul Hira was shown to have been survived by the appellant (being husband) and Mashooq Ali, her brother only but during enquiry it transpired that deceased Kandera and Gul Hira have other legal heirs, therefore, application for compromise. Accordingly we hold that death sentence awarded to the appellant on I account of murder of his wife is not sustainable. the same is altered to the punishment provided in section 308, P.P.C Accordingly appellant. is IH directed to pay Diyat amount of Rs.2,84,859 to the heirs of "St. Gul Hira. He is also sentenced to imprisonment for 14 years as "Tazir"; as the facts and circumstances of the case do not justify a lenient view in the matter. For the foregoing reasons, while converting the conviction of appellant under section 302(a), P.P.C. to one under section 302(c), P.P.C. for murder of Kandera, we direct him, to suffer twenty-five years' R.I. His conviction under section 302(a), P.P.C. for murder of Mst. Gul Hira is also converted to one under section 308, P.P.C. He is directed to pay Diyat amount of Rs.2,84,859 to the legal heirs of Mst. Gul Hira. He is also awarded fourteen years' R.I. as Tazir under section 308, P.P.C. Subject to above modification appeal is dismissed. Both the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. is also extended. Death Reference is answered in negative. N.H.Q./71/Q Order accordingly.