' SAGHEER AHMAD QADRI, J.---The present appeal has been preferred against the judgment dated 10-1-2008 passed by the learned Additional Sessions Judge, Rawalpindi whereby Abdul Khaliq ,son of Noor Muhammad, appellant was convicted under section 302(b), P.P.C. As Tazir and sentenced to death for committing Qatl-e-Amd of his wife Mst.Dilshad Bibi (complainant's sister). He was also held liable to pay Rs,3,00,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. And in default thereof to undergo further imprisonment for six months' S.I.
Abdul Khaliq, appellant was also convicted under section 324, P.P.C. For making an attempt to commit Qatl-e-Amd of his son Mubarak Abbasi ('Bhanja' of the complainant) and sentenced to 10 years' R.I. With fine of Rs,10,000 and in default of payment thereof to undergo further simple imprisonment for six months. He was also convicted and sentenced under section 337-F(i) of the P.P.C. To one year rigorous imprisonment and to pay compensation to the injured Mubarak Abbasi in terms of 'Daman' worth Rs,5,000 and until and unless payment of Daman is made, he shall remain in jail which period shall be considered as simple imprisonment.
2. Along with the appeal there is a Murder Reference No,4/RWP of 2008 sent by the learned trial Court for confirmation of death sentence awarded to Abdul Khaliq, appellant. We intend to dispose of both these matters through this single judgment.
3. The occurrence in this case took place on 30-11-2006 at about 4-30 a.m. In the area of, China Moar Dhar-Jawa falling within the jurisdiction of Police Station Murree that was reported vide F.I.R.
No,493 dated 30-11-2006 under sections 302/34, P.P.C. By Muhammad Nawaz son of Muhammad Sadiq, complainant (P.W.5).
4. Brief facts of the case as disclosed in the complaint (Exh.PH and PH/1) by Muhammad Nawaz (P.W.5), the complain ant on the basis of which F.I.R. (Exh.PH/2) was recorded, are that he was running a hotel in Islamabad; that his sister Dilshad Bibi (deceased) about 24/25 years ago married with Abdul Khaliq son of Noor Muhammad (appellant) and out of the wedlock four daughters and two sons were born; that his elder Bhanji was married whereas the younger one Somia Bibi aged 18/19 years about 5/6 months ago was given in the Nikah of Zaheer son of Muhammad Nazeer but Rukhsati did not take place; that the Nikah was solemnized with the consent of complainant's Bahnoi and deceased sister Mst.Dilshad Bibi but Somia Bibi was not happy over this relation whereas her father Abdul Khaliq appellant reprimanded her and forced to get married with Zaheer upon which Somia Bibi came to complainant's (P.W.5) house; that his Bahnoi Abdul Khaliq along with his brothers, namely, Munir, Safeer and Saeed came to the house of the complainant at Islamabad wherein it was settled that if Somia Bibi was not willing to marry with Zaheer then she be given in the Nikah of her cousin Shahbaz upon which Mst.Dilshad Bibi (deceased) complainant's sister did not agree and remained persistent to get married her daughter Somia with a person to whom she has already given in Nikah; that due to this reason both husband and wife quarreled with each other; that a day before the occurrence at night time the complainant came to her sister's house to settle the dispute amicably between them but in vain; that due to late night complainant along with his sister, Bahnoi; Bhanji Somia and Bhanja Mubarak Abbasi slept in a residential room when at about 4.30 a.m. He heard hue and cry and saw that Abdul Khaliq (appellant), his Bahnoi was inflicting hatchet blows on his sister Disland Bibi (deceased). In the meanwhile his Bhanji Somia (given up P.W.) and Bhanja Mubarak (P.W.4) woke up who also received hatchet blows at the hands of their father Abdul Khaliq (appellant); that subsequently people attracted at the spot and the complainant along with the P. Ws. Rescued the victims from the clutches of the accused Abdul Khaliq by apprehending him and snatching hatchet from his hands; that Dilshad Bibi succumbed to the injuries at the spot where as Somia Bibi and Mubarak Abbasi were seriously injured. The complainant Muhammad Nawaz (P.W.5) alleged that accused Abdul Khaliq (appellant) due to dispute over rishta of his daughter Somia killed his wife Dilshad Bibi while caused serious injuries by hatchet blows to him, Somia and Mubarak (P.W.4).
Subsequently the matter was reported and custody of the appellant Abdul Khaliq was also handed over to the police.
5. P.W.6: Nazeer Ahmed, S.-I. Conducted initial investigation of this case and while appearing in court stated that on 30-11-2006 on receipt of information about this occurrence he reached at the spot where complainant and other people of the locality who had apprehended Abdul Khaliq, appellant handed over his custody to him along with hatchet (P4) which he secured vide memo Exh.PJ attested by Muhammad Nawaz (P.W.5); he recorded the statement of the complainant (Exh.PH and Exh.PH/1); sent the same to the police station for registration of formal F.I.R. (Exh.PH/2); prepared necessary documents including applications (Exh.PC and Exh.PE) for getting medical examination of injured Somia and Mubarak (daughter and son of the appellant Abdul Khaliq) and sent them to the hospital along. With the dead body of Mst.Dilshad Bibi for post mortem examination to THQ Hospital, Murree; recorded the statements of the P.Ws. Under section 161, Cr.P.C, and inspected the spot; prepared the rough site plan (Exh.PL); received last worn clothes of deceased Dilshad Bibi vide memo Exh.PG; I.O. Got deposited case property in the Malkhana for safe custody. Subsequently obtained physical remand of the accused-appellant and on 4-12-2006 sent the appellant to judicial lock up; on 6-12-2006 Moharrir Malkhana handed over a parcel containing hatchet (P4) to Zahid Akhtar, P.W. For onward transmission to the office of Chemical Examiner for is report. After his transfer the remaining investigation was conducted by P.W.8 Muhammad Nawaz 5.-I. Who got prepared scaled site plans (Exh.PN and Exh.PN/1) of the place of occurrence by Qari Mohib-ur-Rehman, Draftsman (given up P.W.) after completion of necessary police papers got submitted report under section 173, C.P.C. Before the learned trial court.
6. On 30-11-2006 P.W.1 lady doctor Abida Zafar, Women Medical Officer, THQ Hospital, Murree conducted the postmortem examination on the dead body of Dilshad Bibi and found the following injuries on her body:-
(1) A sharp incised wound of about 11 cm x 3 cm on lateral side of right cheek.
(2) A sharp incised wound of 12 cm x 4 cm on right lateral side of neck.
(3) Incised wound of 10 cm x 3 cm on parietal bone.
(4) Incised wound of 3 cm x 2 cm on right frontal bone.
(5) Two cured bruise marks on back of right scapula about 10 inches each.
' According to the opinion of the doctor the cause of death in this case was due to Injuries Nos.1, 2 and 3 which were sufficient to cause death in ordinary course of nature within few minutes. She proved her reports Exh.PB and Exh.PB/1.
7. On the same day lady doctor Abida Zafar P. W.1 also medically examined injured Mst.Somia Bibi (given up P.W.) and found the following injuries on her person:--
(1) A sharp incised wound of 10 cm x 3-4 cm on right lower arm wound was bone deep on frontal side of radius.
(2) A sharp incised wound, muscle deep about 7 cm x 3 cm on right scapular region.
Lady doctor declared Injury No,1 as `Jurh Ghayr Jaifah Hashimah' and Injury No,2 as l'urh Ghayr Jaifah'. Copy of MLR is Exh.PD.
8. 'On the same day she also medically examined injured P.W. Mubarak and found the following injury on his person:-- "One skin deep incised wound of about 7 cm x 1 cm on lateral aspect of neck."
' This injury was declared as 'hut Ghayr Jaifah Damiah'. Exh.PH is the MLR of the injured.
9. At the trial besides the above mentioned medical evidence and investigation details given by P.W.6 Nazeer Ahmed, S.-I. And P.W.8 Muhammad Nawaz, S.-I., P.W.5 Muhammad Nawaz, complainant and injured P.W.4 Mubarak Abbasi the eye-witnesses furnished the ocular account.
Muhammad Nawaz, complainant also testified the recovery of hatchet blow (P4). The remaining witnesses are officials and their part of evidence is not need to be mentioned. The learned DDPP after tendering in evidence the reports of Chemical Examiner (Exh.PP) and Serologist (Exh.PQ) closed the prosecution evidence.
10. After conclusion of the prosecution evidence statement of Abdul Khaliq, appellant was recorded under section 342, Cr.P.C. Who while refuting all allegations levelled by the prosecution brought on record through the statements of the P.Ws. In reply to Question No,9 'Why this case against him and why the P.Ws. Have deposed against him' he replied that 'I was falsely implicated on the behest of the complainant who is actual culprit by joining hands with the police.'. The appellant, however, denied to record his statement on oath under section 340(2) Cr.P.C.
11. At the conclusion of the trial, learned trial Court, convicted and sentenced Abdul Khaliq, appellant as mentioned above in the earlier part of this judgment.
12. Learned counsel for the appellant argued that impugned judgment whereby conviction passed against the appellant is against law and facts of the case; that learned trial Court passed the conviction against the appellant on the basis of discrepant, wholly unreliable and interested evidence; that statements of the alleged eye-witnesses are in contradiction with the medical evidence as none of the witness described in detail the injuries inflicted on the person of deceased allegedly caused by the appellant; that medical evidence is in conflict with the ocular account; that the presence of eye-witnesses at the spot at relevant time is doubtful; that all the eye- witnesses are closely related and interested witnesses, therefore, their statements could not blindly be relied on without any independent corroboration, that one of the injured witnesses Mst. Somina Bibi was not examined by the prosecution, thus adverse inference can be drawn in this respect as she was not supporting the prosecution version; that three of the legal heirs/walies of deceased i.e, Mst. Somia Bibi, Mst. Sobia Bibi and Mst. Aine in their statements before the learned trial Court whereby they specifically stated that they had forgiven the appellant in the name of Allah Almighty and had compounded the offence with the appellant without getting any compensation, thus, waived their right of Qisas, Diyat, Arsh as well as Daman but the learned trial Court did not consider this aspect and passed conviction against the appellant; that as three legal heris/walies of the deceased had waived their right of Qisas and Diyat against the appellant, therefore, it was not a case of maximum penalty. Learned counsel while concluding the arguments prayed that in these circumstances if the other arguments advanced by her did not weigh this Court then death penalty awarded to the appellant be reduced into imprisonment for life, the lesser punishment.
13. On the other hand, learned Law Officer has vehemently opposed the arguments advanced by learned counsel for the appellant on the grounds that complainant Muhammad Nawaz (P.W.5) who is the real brother of deceased Mst. Dilshad Bibi in straightforward manner deposed all the material facts in his statement while appearing in Court and his statement further was supported by the other eye-witness namely Mubarak Abbasi (P.W.4) the real son of the appellant. The statement of the above mentioned eye-witness is supported by the medical evidence brought on record by. P.W.1 Dr. Abida Zafar, who proved the postmortem examination (Exh.PB/1) conducted on the dead body of Mst. Dilshad Bibi deceased. The injuries sustained by Mst. Somia Bibi (given up P.W.) vide MLR (Exh.PD) and on the person of P.W. Mubarak vide MLR (Exh.PF) were also proved on record. The recovery of Hatchet (Exh.P4) which was snatched from the possession of appellant immediately after the occurrence at the spot, which subsequently was found stained with blood vide report of Chemical Examiner (Exh.PP) and further corroborated by the report of Serologist (Exh.PQ) further corroborates the ocular account; that apprehension of the appellant at the spot rules out all the possibilities which the defence suggested during the cross-examination. It was further argued that during the cross-examination to the witness specifically P.W.5 Muhammad Nawaz the complainant it was suggested by the defence that appellant due to mental derangement committed the alleged occurrence, which itself shows that presence of the appellant was admitted at the spot at the time of occurrence; that no evidence subsequently was led to prove this fact by the appellant; that the appellant in his own statement under section 342, Cr.P.C.
Raised the plea of substitution rather blamed the complainant Muhammad Nawaz P.W.5 for commission of the alleged offence. As far as lenient view as prayed for by learned counsel for the appellant is concerned, learned Law Officer argued that appellant was convicted under section 302(b), P.P.C. As Tazir and awarded death penalty and as all the legal heirs/walies of the deceased did not compound the offence, therefore, offence could not have been compounded, therefore, learned trial Court rightly passed the conviction against the appellant. Reliance in this respect is placed on 2003 SCM R 1067 (Riaz Ahmad v. State), PLD 2003 Supreme Court 547 (Muhammad Arshad alias Papu v. ASJ, Lahore) and 2005 SCM R 599 (Khan Muhammad v. State). Prayed that this appeal be dismissed and conviction passed by the learned trial Court be upheld.
14. We have considered the arguments advanced by learned counsel for the parties and have gone through the record.
15. Admittedly, F.I.R. Was lodged by Muhammad Nawaz son of Muhammad Sadiq, the real brother of deceased Mst. Dilshad Bibi, who narrated the background on the basis of which appellant developed strained relations with his wife, as the appellant wanted to get marry his daughter Mst.
Somia Bibi according to his wishes which were not acceptable to his wife. He narrated the circumstances in which he was present at night time in the house of appellant and Mst. Dilshad Bibi deceased his sister, when at night time on hue and cry of deceased he along with other P. Ws saw appellant causing injuries with hatchet on deceased. In order to corroborate the statement of P.W.5 Muhammad Nawaz one of the injured witnesses namely Mubarak Abbasi P.W.4 real son of the appellant appeared and he corroborated whole of the version brought on record. Both of these witnesses were cross-examined at length but they remained consistent and corroborated each other on material aspects.
16. That the manner of injuries and number of injuries inflicted by the appellant on deceased were slightly different than brought on record through postmortem examination report. It has no force in the circumstances when these witnesses were able to prove their presence at the spot and P.W.4 who appeared in the Court against the appellant was also an injured eye-witness. The given up P.W. Mst. Somia Bibi was also injured and her injuries were also proved on record as earlier mentioned by the Medical Officer (P.W.1) Mst. Abida Zafar. As it is apparent from the record by the statement of P.W.4 Mubarak Abbasi, P.W.5 Muhammad Nawaz as well as Muhammad Nawaz, S.- I/I.O. (P.W.8) that the culprit was apprehended at the spot specially in the light of the trend of the cross-examination to the witnesses by learned Defence Counsel when it was suggested that as appellant was mentally a deranged persona and under that mental condition he committed the murder of deceased shows that appellant admitted his presence at the spot. Even otherwise, there was no reason for the complainant and other eyewitnesses who are closely related to appellant to falsely implicate him in this case. The appellant raised plea of substitution in his statement under section 342, Cr.P.C. Which in these circumstances is just an after thought version having no substance. The motive part of evidence is also proved on record and above all the ocular account is further corroborated by the medical evidence. Resultantly, the prosecution was able to prove charge against the appellant beyond any reasonable shadow of doubt.
17. Now comes to the question of quantum of sentence as learned counsel for the appellant during her arguments in alternate raised the plea that as three of the legal heirs/walies of deceased namely Mst. Somia Bibi, Mst. Sobia Bibi and Mst. Aini Bibi (the three daughters of the appellant as well as the deceased) had made their statements whereby they stated that they had forgiven the accused-appellant in the name of Allah Almighty and had compromised with him without getting any compensation. If the statements of all three ladies i.e, daughters of the deceased are seen, they had shown their intention to waive their right of Qisas and Diyat against the appellant.
According to these statements/following were the legal heirs:-- 1Mst. Somia Bibi (daughter)
2Mst. Aini Bibi (daughter)
3Mst. Sobia Bibi (daughter)
4Mubarak (son)
5Mst. Bushra Bibi (daughter)
6Adnan (son)
7Mst. Rozan Bibi (mother of deceased)
8Muhammad Sadiq(father of deceased)
' Out of above mentioned legal heirs/walies Mst. Somia Bibi, Mst. Sobia Bibi and Mst. Aine Bibi, who claimed themselves as adult Walies of the deceased have waived their right of Qisas and Diyat but the fact remains that appellant was convicted under section 302(b) PPC and was awarded death penalty as Tazir. No doubt, if Qatl-e-Amd is penalized under section 302(a), P.P.C. As Qisas then each and every adult sane Wali under section 309, P.P.C. May waive his right of Qisas or under section 310 PPC can compound the offence with the convict but in case where death penalty is provided as Tazir under section 302(b), P.P.C. Then keeping in view section 345(2), Cr.P.C. Until and unless all the Walies compound the offence, the compromise cannot be allowed and Court cannot permit this compromise. In this respect an authoritative pronouncement of Hon'ble Supreme Court of Pakistan cited as 2005 SCM R 599 (Khan Muhammad v. The State) can be referred wherein their Lordships were pleased to observe that:- "the offence wherein sentence has been awarded under Tazir under section 302(b), P.P.C., has not been made compoundable unless all the legal heirs of the deceased agree' gree for the same, therefore, we are of the opinion that there is no confusion in the law and the judgment relied upon by the learned counsel for the petitioner in the case of Muhammad Aslam (ibid) has not advanced his case in any manner."
' Learned trial Court while deciding this question has also discussed these aspects and rightly passed the sentence against the appellant. Resultantly, finding no merits in this appeal, same is hereby dismissed.
18. Resultantly, the Murder Reference No,4/RWP of 2008 is answered in the AFFIRMATIVE,/u> and the death sentence awarded to Abdul Khaliq, appellant is CONFIRMED.