' SARDAR MUHAMMAD ASLAM, J.---This Criminal Appeal arises from the judgment of the learned Additional Sessions Judge, Sialkot, whereby he, on 28-9-2002 convicted Muhammad Tariq, appellant for causing the death of Mst. Shama Bibi, and sentenced to him to imprisonment for 14 years' R.I. He was also directed to pay compensation amounting to Rs,2,00,000 to the legal heirs of the deceased, in default whereof he shall have to further undergo six months' R.I. He was also extended the benefit of section 382-B, Cr.P.C.
2. Brief facts of the prosecution story are that on 23-7-2000 at about 7-00 p.m., Muhammad Tariq accused-convict came in the area of Mohallah Jeven-Pura Police Station, Hajipura Sialkot and asked his wife to go along with him to the house but she refused. The appellantthreatened her with dire consequences but she again refused. Accused/ convict took out a chhurri from the breaches of his shalwar and attacked on her. He gave two blows on the deceased which proved fatal, and she succumbed to the injuries. Prosecution witnesses tried to catch-hold of him but he decamped from the spot.
3. Challan was submitted before the Court. Charge sheet was prepared. The prosecution examined as many as 9 witnesses in support of the prosecution case. Statement under section 342, Cr.P.C.
Was also recorded. The appellant-convict has made statement under section 340(2), Cr.P.C. And produced defence evidence in support of his plea. The learned trial Court passed the sentence mentioned above.
4. The learned counsel for the appellant contends that sufficient incriminating evidence was not available against the appellant, hence his conviction is not sustainable in law.
5. Conversely, the learned counsel for the State argued that the judgment of the learned trial Court is not sustainable in law inasmuch as he convicted the appellant under section 308, P.P.C., after holding that the offence stands proved against him. Reliance has been placed on Muhammad Akram v. The State (2003 SCM R 855).
6. Heard. Record perused.
7. The appellant is guilty of murder of his own wife Mst. Shama A Bibi. The appellant had three sons out of his wedlock with Mst. Shama deceased. The learned trial Court held that the prosecution has fully proved its case against the appellant, who committed the murder of his own wife.
8. The learned trial Court was, however, influenced in convicting the appellant under section 308 P.P.C., on an interpretation placed in view of his reading of section 307, P.P.C. The view taken by the learned trial Court is in violation of the principle of law laid down in Muhammad Akram v. The State (2003 SCM R 855), wherein, it was held, which is re-produced as under for facility of reference:-- "The first contention of the learned counsel relating to the application of section 308, P.P.C. Is without any substance, sections 306, 307 and 308, P.P.C. Would only attract in the cases of Qatl-i- Amd which are liable to Qisas under section 302(a), P.P.C., and not in the cases in which sentence for Qatl-iAmd has been awarded as Tazir under section 302(b) and (c), P.P.C."
' Reliance may also be had from the observation of Honourable SupremeCourt of Pakistan recorded in the case of Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCM R 2203. In this view of the matter, the judgment of the learned trial Court is not sustainable in law. The same is, thus, set aside. The matter is remitted to the learned Trial Court, who shall, after grant of hearing to the appellant and the State, will decide the matter afresh, in accordance with law.
9. Since the appellant was not given concession of bail during the trial, he be summoned from Jail as under trial prisoner.