' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No,276-J of 2001 filed by Muhammad Jamil and Mst. Razia Bibi appellants and Criminal Appeal No,998 of 2001 filed by Mst. Uzma Bibi and Gulzar Ahmad appellants against their convictions and sentences along with Murder Reference No,402 of 2001 sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentences awarded to Gulzar Ahmad, Muhammad Jamil and Mst. Uzma Bibi as all these matters have arisen from the same judgment dated 31-5-2001 passed by the learned Additional Sessions Judge, Gujranwala through which he had convicted Gulzar Ahmad, Muhammad Jamil and Mst. Uzma Bibi appellants under section 302, P.P.C. And sentenced them to death each with compensation of Rs,1,00,000 each payable to the legal heirs of Mushtaq Ahmad deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo R.I. For six months each. They were also convicted under section 201, P.P.C. And sentenced to one year R.I.
Each with a fine of Rs,10,000 each or in default of payment thereof to undergo R.I. For one month each. However, Mst. Razia Bibi appellant was convicted under section 308, P.P.C. And sentenced to pay diyat amount of Rs,27,000 to the legal heirs of the deceased besides. 10 years R.I. She was also convicted under section 201, P.P.C. And sentenced to R.I. For one year with fine of Rs,10,000 or in default in payment thereof to undergo R.I. For one month. The sentences were directed to run consecutively.
2. The occurrence in the present case had allegedly taken place few before the registration of the case on 25-5-2000 at 3-15 p.m. Within the area of Kotali Chhuranwan, situate 3 kilometers away from Police Station, Ferozewala District Gujranwala and on the application (Exh.P.J.) submitted by Muhammad Boota (P.W.9) brother of the deceased Muhammad Mushtaq to Nasrullah Khan Inspector/S.H.O. (P.W.12) on 25-5-2000. The formal F.I.R. (Exh.P.K.) was recorded by him at 3-15 p.m.
At the police station.
3. The brief facts as narrated in the F.I.R. (Exh.P.K.) by Muhammad Boota brother of the deceased are that he was resident of Nawan Pind and had four brothers and three sisters that his younger brother Muhammad Mushtaq deceased had shifted froth Nawan Pind village to Jhanggi Rakh Kikranwali after selling the portion of his house in Nawan Pind village three years ago and had constructed his own house and was residing in Jhanggi Rakh Kikranwali with his wife and children, that he had gone to Saudi Arabia and after passing two years there he came back to Pakistan 16/17 days ago, that in the absence of his brother Mst. Razia wife of his brother Mushtaq had kept Muhammad Jamil, Shabbir and Mst. Uzma appellant in her home and when Mushtaq came back he quarreled with his wife Razia Bibi appellant and sent out Jamil, Shabbir and Uzma from his home, but these accused obtained a house on rent and used to reside there. He further stated that Mushtaq deceased had beaten his wife due to this reason, that some days before he came to his brother's home to meet him and asked Mst. Razia appellant about Mushtaq, but she stated that he had gone to Sargodha; that he inquired from Sargodha about his brother, but he was unavailable.
He again inquired from Razia appellant about his brother and searched for him. He suspected that his brother had been murdered and his body had been thrown in the canal. He also heard from the people of Mohallah that Gulzar Ahmad appellant also used to come in the house of his brother, who had illicit relations with Uzma appellant and Muhammad Jamil appellant had illicit relations with Razia appellant and for this reason they had been pushed out from the house by the complainant's brother. He further stated in the application that on 25-5-2000 at about 2-00 p.m.
He along with Liaqat Ali, Qaiser Mahmood and some other people came there by Motorcycle and went towards Kotli Mughlan near the canal of Chhicharwali and there they saw dead-body which was hanging in the woods of bamboobs in front of Darbar Baba Dewan wrapped in clothes, that he along with his companions took out the dead body from canal and identified his brother Muhammad Mushtaq who had been murdered after slaughtering him and separation his head from other body with sharp-edged weapon, that he had identified the body of his brother due to artificial teeth and beard, that his brother was killed by Gulzar, Jamil, Uzma and Razia appellants along with Muhammad Shabbir co-accused after conspiracy with Muhammad Shabbir accused with sharp-edged weapon and then they had thrown the dead body in the canal because his brother had forbidden the accused from their bad habits, that after keeping the dead-body on the bank of canal and leaving there Liaqat All and Sana Ullah he approached the Police Station through application.(Exh. P. J .).
4. After the registration of the case Nasrullah Khan Inspector (P.W.12) proceeded to the spot i.e, near Darbar of Baba Dewan Shah in front of which body of deceased Muhammad Mushtaq was floating in the water of canal. The complainant and the witnesses had pulled out the dead body from the canal which was present there when he reached, he prepared the inquest report (Exh.P.L.) and in his presence the complainant identified the dead-body along with Liaqat All and Sana Ullah P.Ws.
He also prepared the site-plan (Exh.P.M.) without scale of place of recovery of dead-body. He also prepared injury statement (Exh.P.N.) of dead body and drafted an application for post-mortem examination (Exh.P.O.). He sent the dead body for postmortem examination through Abdul Hakeem and Muhammad Azam Constables along with. The witnesses of identification Ghulam Rasool and Qaiser Mahmood. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C. About the identification on 26-5-2000. He arrested Jamil appellant and Shabbir, co-accused and recorded the statements of three P.Ws. Namely Abdul Hakeem, Asmat Ullah and Ghulam Rasool. These witnesses had come on 26-5-2000 after post-mortem examination of the deceased and had produced last-worn clothes of the deceased. He also arrested Mst. Razia Bibi and Uzma appellants, and on their pointation he inspected the spot because the place of occurrence was locked at that time and key of the house was with Razia Bibi appellant. He prepared site-plan (Exh.PP) without scale of place of occurrence. He also prepared recovery memo. Exh.P.H. After taking into possession blood-stained cot P.10. Its rope was cut by him and sealed parcel was made and were handed over to MHC for safe custody in Malkhana and for its onward transmission to the Office of the Chemical Examiner, Lahore, for analysis on 27-5-2000.
5. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265, Cr.P.C. Were supplied to the appellants, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 13 witnesses. The ocular account had been furnished by Farah Mushtaq (P.W.10). And Ali Hassan (P.W.11) while the medical evidence had been produced through the statement of Dr. Ghulam Shabbir Tahir (P.W.1) who conducted the post-mortem examination of the deceased..The investigation had been conducted by Nasrullah Khan Inspector (P.W.12). The complainant appeared as P.W.9. The remaining witnesses are of formal nature and need not to discuss here. After the close of the prosecution evidence the statements of the appellants were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. They did not opt to make statements under section 340(2), Cr:P.C.. And also denied to produce any defence evidence.
6. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeals.
7. After hearing the learned counsel for the parries and perusal of the record we have straightaway noticed that the allegation levelled by the prosecution was that Mushtaq deceased was the husband of Mst. Razia Bibi appellant, who joined the co-appellants and done him to death and disappeared his dead body, which was later on recovered from the canal. The ocular account of the incident in question was furnished by Farah Mushtaq (P.W.10) and Ali Hassan (P.W.11), who are daughter and son of Mst. Razia Bibi appellant and they implicated all the appellants for committing Qatl-i-Amd of their father in their statements.
8. We have noticed that in para.16 of the impugned judgment the learned trial Court observed that "proof of Qatl-i-Amd liable to Qisas in this case according to section 304, P.P.C. Is not available ". As such the accused were liable to be convicted and sentenced as Tazir. The learned trial Court has convicted the three appellants, namely, Gulzar Ahmad, Muhammad Jainil and Mst. Uzma Bibi under section 302(b)/34, P.P.C. And sentenced them to death, but as regards Mst. Razia Bibi appellant, she has been convicted under section 308, P.P.C. While observing that under section 306, P.P.C.
Children of the Razia accused/appellant are Walis of the victim/deceased and she is direct descendant of her children.
9. Admittedly, it was not a case of Qisas as the witnesses had not undergone the test of Tazkia-al- Shahood, which is the prerequisite for recording convictions under Hadd and Qisas. The provisions of section 308, P.P.C. Are only attracted in cases of Qisas. If the case was found to have been proved by the learned trial Court, Mst. Razia appellant could not be convicted and sentenced under the provisions of section 308, P.P.C. But she A should also be sentenced as Tazir. In forming this view we are fortified by the judgment of the Honourable Supreme Court reported as "Faqirullah v. Khalil- uz-Zaman and others" 1999 SCM R 2203 wherein on a review petition filed by the complainant of the case the sentence of death awarded by the learned trial Court to the respondent/accused as Tazir under section 302(b), P.P.C. For committing Qatl-i-Amd of his wife was maintained and order of the said Court passed in a Constitutional petition reported as Khalil-uz-Zaman v. The Supreme Appellate Court, Lahore and four others PLD 1994 SC 885 for remand of the case with the observations that "Yet, the offender has been sentenced to death as Qisas under section 302(a), 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 laible 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 Appellate Court had no lawful authority/jurisdiction/ 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." Was set aside. In the said judgment 1999 SCM R 2203 the Honourable Supreme Court had held as under:-- "In cases where Qisas is not available, the Shariah has given authority to the State and the Court to award appropriate punishment to the offender keeping in view the circumstances of the case.
Such punishment may reach up to the life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances."
10. In view of above discussion, the conviction and sentence recorded by the learned trial Court against one of the appellants, namely, Mst. Razia Bibi under section 308, P.P.C. Is illegal on the face of it, which cannot be sustained if ultimately this Court comes to the conclusion that the case against her was proved. Hence, without commending upon merits of this case lest it may prejudice the case of either party before the learned trial Court, the impugned judgment is set aside and the case is remanded to the learned Sessions Judge, Gujranwala for re-writing of the judgment in accordance with law independently and without being influenced by any B observations of this Court or that of the learned Additional Sessions Judge in the impugned judgment. All the parties concerned shall be afforded equal opportunity of hearing. This exercise will be done within one month after receipt of this order. All the appellants are in custody, who shall be considered as under trial prisoners. Both the appeals are disposed of accordingly.
11. The death sentences awarded to the three appellants are not confirmed as the case has been remanded for re-writing of the judgment and Murder Reference No,402 of 2001 is replied in terms thereof.