' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeals have been directed against the order of District Court of Criminal Jurisdiction, Bhimber, dated 19-3-2005, whereby Muhammad Hanif appellant was convicted and sentenced life imprisonment under section 302, A.P.C.
2. Brief facts leading to the background of the appeals are that a case under sections 302/324, 337, A.P.C. Was registered at Police Station Bhimber on the complaint of Muhammad Anwar. It was reported that Afzala Kousar was married with Muhammad Hanif 14 years before the occurrence.
They had two sons and a daughter. The spouses were on strained relations. On 21-1-2005 at 8-50 a.m. The complainant and his wife Mukhtar Bibi came back to their house after advising Muhammad Hanif to settle the problem amicably. At 9-00 a.m. The accused killed his wife Afzala Kousar by causing injuries at her head with iron pipe. He also caused injuries at the head of his daughter with the same weapon. On hue and cry the complainant and his son Sajid Hussain came at the place and saw Muhammad Hanif with iron pipe in hand saying that he had killed his wife and daughter. In the meantime, Nazia Kousar wife of Muhammad Saleem, Safina Kousar wife of Muhammad Arif and other residents of locality came over there.
3. Later on injured Sadia Hanif also succumbed to the injuries. After completion of investigation, the challan under section 302, A.P.C. Was submitted before District Court of Criminal Jurisdiction, Bhimber. On conclusion of trial, the Court convicted and sentenced life imprisonment to appellant Muhammad Hanif through the impugned judgment. Hence these appeals.
4. It was argued by the learned counsel for the convict appellant that due to unpleasant relations between the parents of the deceased and the convict appellant, he was roped in a false case. It was clear from the F.I.R. That the occurrence was not witnessed by anybody. No independent witness in support of the prosecution story was examined during, trial. P. Ws. Muhammad Anwar, Sajid Hussain and Mukhtar Bibi were closely related to the deceased and were also inimical towards the convict appellant. Mst. Nazia Kousar and Mst. Safina Kousar who were supposed to be the independent witnesses were declared hostile. Their deposition creates serious doubt in truthfulness of the prosecution version. Recovery of weapon of offence was not worth consideration as it was affected in presence of close relatives of the deceased. No independent corroborative material in support of the prosecution version was brought on record. He further argued that alleged motive was not proved during trial. The spouses were enjoying good relations. A single incident indicating unpleasantness was not brought on record. True account of the occurrence was suppressed by the prosecution. In fact some one killed the deceased and her parents roped the convict appellant in a false case. Learned counsel submitted that the prosecution story being improbable was not believable. The trial Court failed to appreciate that evidence on record was not worthy relying therefore, by accepting the appeal, the appellant may be acquitted of the charge.
5. On the other hand, it was argued that due to unpleasant relations the convict killed his wife and daughter. The presence of the assailant and the victims at the place of occurrence at relevant time was not in doubt. P.Ws. Muhammad Anwar and Sajid Hussain had given true account of the occurrence. They heard the convict appellant saying that he had killed the victims. Weapon of offence, the iron pipe was seized from a residential room of the house of convict appellant at his instance. According to the learned counsel the place and time of occurrence were not disputed. It was also proved that the deceased died of injuries caused with blunt weapon and it was also established that the occurrence took place because of unpleasant relations between the spouses.
Learned counsel submitted that the prosecution version was supported by postmortem report and recovery of weapon of offence. Motive was also proved and there was no mitigation suggesting lesser punishment ,of life imprisonment, therefore, by accepting the appeal the convict may be awarded death sentence.
6. Learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
7 .Since both the appeals arise out of the same order, therefore, these shall be disposed off through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. According to the statement of complainant, Afzala Kousar was married to Muhammad Hanif. On 21-1-2005. She called him, upon which the complainant and his wife went to her house where they advised Muhammad Hanif convict to settle the problem amicably and came back. After sometime they heard people saying that Muhammad Hanif was beating Afzala Kousar. Upon this the complainant and his son Sajid Hussain came at the place of occurrence. As they arrived there, saw the convict appellant with blood-stained iron pipe in his hand saying to his brothers wives that he killed the victims. When he saw the complainant and his son he entered a room and closed the door. The complainant entered the kitchen and saw Afzala Kousar lying dead and his grand- daughter injured. In the meantime other residents of the locality and a police patrol party came there and he reported the matter to them.
10. P.Ws. Sajid Hussain and Mst. Mukhtar Bibi also narrated the same story. During cross- examination the defence failed to obtain anything favourable. Even a single question regarding confession of the accused about commission of the offence was not asked from the witnesses.
11. During investigation Mst. Nazia Kousar and Mst. Safina Kousar brothers' wives of the convict made a joint statement under section 164, Cr.P.C. And were cited as prosecution witnesses. During examination they turned hostile and stated that on 21-1-2005 the convict appellant told them that some one killed his wife and daughter. They were cross-examined by the prosecution. The deposition shows that the witnesses voluntarily recorded their statements under section 164, Cr.P.C.
It is important to note here that the joint statement of said witnesses was recorded on 24-1-2005 by Arshid Mahmood, Revenue Assistant/ Magistrate 1st Class, Bhimber. During trial the Presiding Officer appeared before the trial Court and stated that the witnesses voluntarily recorded their statement where it was disclosed that the convict appellant told them that he killed his wife and daughter.
12. A perusal of the record shows that weapon of offence the iron pipe was recovered at the instance of convict appellant from the residential room of the house which was blood-stained. The attestors of recovery memo. Exh.P.C. Were Haji Muhammad Akbar and Muhammad Tahir. They appeared before the Court and established that blood-stained iron pipe was seized in their presence at the instance of convict appellant on the day of occurrence.
13. The aforesaid facts indicate that motive was proved, time and place of occurrence were also not disputed. There was no dispute in relation to the weapon used for commission of offence and the same recovered from appellant's house at his instance. The witnesses were closely related to the deceased but were not found inimical towards the A convict appellant. No improvements, contradictions or even discrepancies in their statements were pointed out by the learned counsel for the appellant. They narrated what they saw and the deposition was confidence-inspiring, thus, the observation of the trial Court that the convict appellant committed the offence was a result of correct appreciation of the evidence.
14. As said earlier that the convict appellant committed the murder of his wife and daughter. Thus, the only question needs consideration is whether the conviction was warranted under section 302, A.P.C. Or under section 308, A.P.C. In view of the provisions of section 306, A.P.C. The relevant provisions of law are usefully reproduced:--
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, how lowsoever; and
(c) when any Wali of the victim is a direct descendant, how 4 lowsoever, of the offender." (underline is mine)
"308. Punishment in Qatl-i-Amd not liable to "Qisas", 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 (e) of section 307, he shall be liable to Diyat: ' Provided further that, where at the time of committing Qatl-iAmd 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 to Tazir: 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 Tazir.
(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 Tazir".
(underline is mine)
15. Thus, it follows that an offender cannot be convicted under section 302, A.P.C. If he is found guilty of causing death of his child or grand-child or if any Wali of a victim is his direct descendant. In the present case the convict appellant committed the murder of his wife and daughter while his two sons are his direct descendants, thus, the conviction was not warranted under section 302, A.P.C. In the circumstances, therefore, the same is altered by modifying the order as to Diyat along with 14 years' R.I. So provided under section 308, A.P.C. The amount of Diyat equal to 30,630 grams silver for each of the murder thus, its total value comes to Rs,15,31,500 shall be deposited before District Court of Criminal Jurisdiction, Bhimber to be paid to the legal heirs of the deceased as per their shares in accordance with law
16. The upshot of the above discussion is that appeal filed by complainant is dismissed while the appeal filed by the convict stands disposed of in the terms indicated above. Benefit of section 382- B, Cr.P.C. Is also extended.