2001 PLP 1775 (SCMR)

JAVED IQBAL, J. ‑‑‑Criminal Review Petition bearing No. l l ‑L of 1995 preferred on behalf of the appellant was accepted vide this Court's "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 death 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 Officer with an objection which was not entertainable. 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/refiling 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 subsection (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."

2. The orders as reproduced hereinabove would indicate that leave was granted to examine the question as to whether the appellant being not liable to Qisas in view of the provisions as contained in section 306 read with section 308, P.P.C. could have been punished under section 302, P.P.C. or otherwise?

3. We have heard Mr. Zafar Ullah Khan, learned Advocate Supreme Court on behalf of the appellant who mainly contended that in view of the provisions as contained in sections 306(c) and 308, P.P.C. the offence committed by the appellant was not punishable under section 302, P.P.C. sentence of life imprisonment as awarded vide impugned judgment wa illegal which is liable to be set aside.

4. Mr. Ghulam Ahmad, learned Advocate Supreme Court appeared or behalf of State and supported the view‑point as canvassed at the bar by Mr. Zafar Ullah Khan, learned Advocate Supreme Court and concede the prime contention as mentioned hereinabove of the learned counsel for the appellant.

5. We have carefully examined the respective contentions as agitate on behalf of the appellant and for State in the light of relevant provisions o law and record of the case. The impugned judgment has been peruses carefully. A careful analysis of the entire record would reveal that it is at admitted feature of the case that the deceased was survived by a daughte namely Gulnaz Bibi who was about 2 years of age at the time of fateful occurrence and is the Wali of the deceased and simultaneously the descendan of the appellant. In such view of the matter the only question which need; determination is whether the appellant could have been convicted and sentenced under section 302, P.P.C. in view of the provisions as contained in sections 3U6 and 308, P.P.C. It would be advisable to reproduce the above referred two sections for ready reference:‑‑ "

306. Oatl‑i‑Amd not liable to Oisas.‑‑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, how lowsoever; and (c) when any Wali of the victim is a direct descendent, how lowsoever, of the offender.

308. Punisment in Oatl‑i‑Amd not liable to Oisas, etc.‑‑‑(1) 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 persons 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 realise the consequences of 1W act, he may also be punished with imprisonment of either description for 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 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." A bare perusal of the provisions as contained in sections 306 and 308, P.P.C. would reveal that the same are free from any ambiguity and capable enough to meet all sort of eventualities and thus, no scholary interpretation is called for. As mentioned hereinabove the deceased was survived by Gulnaz Bibi who is admittedly the Wali of the deceased and descendant of the appellant and. therefore, the appellant is not liable to Qisas in view of the provisions as enumerated in section 306, P.P.C. and conviction could only be awarded under section 308(2), P.P.C. A similar proposition was discussed in case titled Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885 with' the following observations:‑‑ "On our independent assessment of the facts, circumstances of the case and appreciation of the relevant provisions of law, we find that the F.I.R. and tire prosecution evidence reveal that the deceased was the wife of the offender. A daughter namely, Mst. Amina was born out of the wedlock. Mst. Amina is alive. She is a Waii of the deceased and is also the dir8ct descendant of the offender/petitioner From the judgment of the trial Court and the appellate Court it is very much obvious that both the learned Courts were fully aware of this aspect of the case. Yet, the offender has been sentenced to death as Qisas under section 302(a) of P.P.C., whereas provisions of section 306(c), P.P.C. clearly lay down that Qatl‑i‑Amd committed by the husband of his wife leaving behind child/children is not liable to Qisas. Law has specifically provided punishment for Qatl‑i‑Amd not liable to Qisas, under section 308, P.P.C. which does not provide death penalty, so we are in no manner of doubt that the trial Court and also the learned Appellant Court had no lawful authority/jurisdcition/power whatsoever to convict the petitioner under section 302, P.P.C. or to impose penalty of death on him, and have acted in gross violation of law. The Courts derive authority to punish the accused from the Statute. If the Statute does not provide death penalty for the offence then obviously the Court would have, no jurisdiction to award the same, and, as such, the conviction and sentence of the petitioner recorded under section 302, P.P.C. is corum non judice." The above reproduced verdict lends support to the conclusion that the appellant could only be convicted under section 308, P.P.C. which does not provide the sentence of death or life imprisonment. We are, therefore, inclined to modify the impugned judgment and resultantly the appellant is convicted under section 308(2), P.P.C. to undergo 14 years R.I. and shall also be liable to Diyat. The appeal is, accordingly, dismissed with above modification. N.H.Q./M‑254/S Order accordingly.