' CH. MUHAMMAD IBRAHIM ZIA, J.---These direct appeals have been filed under the provisions of section 25 of the Islamic Penal Laws (Enforcement) Act, 1974 against the judgment of the Shariat Court dated 16-5-2007. The learned single Judge of the Shariat Court disposed of the appeals of the parties through the impugned consolidated judgment, whereby while partially accepting the appeal of the convict, the punishment of life imprisonment under section 302, APC has been converted into sentence of Diyat along with the sentence of 14 years' rigorous imprisonment under section 308, APC, whereas the appeal filed by the complainant party for enhancement of sentence is consequently dismissed. The amount of Diyat calculated by the Shariat Court is. Rs.15,31,500 equal to the value of 30630/grams silver. The supra titled appeals filed against the common judgment are hereby disposed of through this single judgment.
2. The precise summary of facts giving rise to this case is that a case under sections 302/34/337-A, APC was registered at Police Station Bhimber on the complaint of Muhammad Anwar. It was reported that Afzala Kousar was married with Muhammad Hanif, accused, fourteen years prior to 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 issue amicably, when at 9-00 a.m, the accused killed his wife Afzala Kousar by causing injuries at her head with an 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, Sajjid Hussain came at the place of occurrence and saw Muhammad Hanif with an iron pipe in his hand saying that he had killed his wife and daughter. Meanwhile, Nazia Kousar wife of Muhammad Saleem, Safina Kousar wife of Muhammad Arif and other residents of locality came over there.
Later on, injured Sadia Hanif succumbed to the injuries. After completion of investigation, the challan under section 302, APC was presented before the District Criminal Court Bhimber. On conclusion of trial, the Court convicted the accused-appellant by awarding him life imprisonment as Tazeer' vide judgment dated 19-3-2005. However, through the impugned judgment, the sentence awarded by the trial Court to the accused has been converted into sentence of `Diyat' along, with 14 years' rigorous imprisonment under section 308, APC.
3. Mr. Khalid Rashid Chaudhary, the learned counsel for the accused-appellant, after briefly stating the facts of the case on behalf of the accused-appellant, submitted that:--
(i) the prosecution has failed to prove his case;
(ii) there is no direct evidence;
(iii) the whole story is concocted;
(iv) all the prosecution witnesses have falsely implicated the accused;
(v) the recovery has not been proved;
(vi) the true facts have been suppressed by the prosecution;
(vii) the chains of the prosecution story are missing;
(viii) there is major contradiction in the evidence of prosecution;
(ix) the circumstantial evidence is not supporting the prosecution version; and
(x) at least there exists serious doubt and benefit of doubt always goes to the accused. He placed reliance on PLD 1369 SC 17(sic), 1973 PCr.LJ 17, 1973 PCr.LJ 37, PLD 1997 SC(AJ&K) 1, 2004 PCr.LJ 864, 1992 SCR 366 and 2001 SCMR 1405. He further submitted that the subordinate Courts have failed to properly appreciate the statutory provisions, hence the accused-appellant deserves for acquittal and the judgment is not sustainable.
4. Sardar Muhammad Azam Khan, the learned counsel for the complainant, while controverting the arguments of the learned counsel for the accused-appellant, submitted that both the subordinate Courts have concurrently recorded findings on the question of facts. The accused-appellant has failed to point out any misreading or non-reading in the evidence, thus the reappraisal of the evidence is not permissible under law. In this regard he placed reliance on 2006 SCR 166 and 2002 SCMR 2031. He further submitted that it is a fit case where the convict should also be awarded death sentence as `tazir'. In this regard he placed reliance on PLD 2007 SC 111 and PLD 2007 SC(AJ&K) 27.. He also raised a preliminary objection that the complainant, Anwar was dead when the appeal was filed and his legal heirs have not been arrayed as party, thus the appeal is liable to be dismissed on this sole ground.
5. Mr. Muzaffar Ali Zafar, Additional Advocate-General, adopted the arguments of the learned counsel for the complainant and requested for enhancement of the sentence.
6. We have heard the learned counsel for the parties and also gone through the record made available. The first question involved in these appeals in view of the peculiar facts of this case is that as the accused is implicated for murder of his wife and real daughter; thus under which provisions of law and what quantum of sentence could be awarded? The learned trial Court awarded the sentence under section 302(b) APC, whereas the learned Shariat Court has concluded that the accused's case falls within the purview of section 306, APC and the punishment shall have to be awarded under section 308, APC. To this extent we have no cavil with the conclusion drawn by the learned Judge Shariat Court, however, on the question of quantum of sentence, we are unable to subscribe the view of the learned Judge Shariat Court. The codal provision dealing with the question is subsection (2) of section 308, APC which speaks that the Court having regard to facts and circumstances of the case in addition to punishment of `Diyar may punish the offender with imprisonment of either description for a term which may extend to 14 years as `tazie. The awarding of maximum doze of punishthent is not mandatory. The words "it may extend" clearly provide the maximum limit of punishment/ imprisonment and it is the discretion of the Court to award any punishment below the maximum limit in view of the facts and circumstances of the case.
7. In the case in hand, it is an admitted position that there is no direct ocular evidence connecting the accused with the commission of alleged offence. The prosecution has brought on record the statements of two ladies witnesses to connect the accused with the commission of offence. The joint statement of these prosecution witnesses named Mst. Nazia Kaousar and Safeena Kaousar, was firstly recorded by the Magistrate under section 164, Cr.P.C. It is very amazing that the Magistrate either intentionally or being ignorant of the provisions of law has failed to record the statement in accordance with the statutory provisions of Criminal Procedure Code. Leaving aside this legal defect, the ladies witnesses, in their Court statements have not supported the prosecution story, hence they were declared hostile. The examination of the alleged statements recorded under section 164, Cr.P.C. And in the Court in juxtaposition, reveals that these statements .Are of not such a nature on the strength of which one can be, punished with 14 years' rigorous imprisonment. Likewise the statements of other witnesses are also not of such standard to satisfy the conscience of the Court for awarding 14 years' rigorous imprisonment. The trial Court while awarding the punishment has considered the important mitigating aspect of the case that there are two minor children, who are Wali of both the deceased victims and the convict accused is real father of these minor Walis, therefore, the death sentence was not awarded to the accused.
8. After complete examination of the record and appreciation of all the evidence and circumstances of the case., we are convinced that there are sufficient mitigating circumstances and compassionate grounds to reduce the punishment of imprisonment awarded to the convict appellant, thus the sentence of 14 years' rigorous imprisonment is reduced to 10 years' rigorous imprisonment. The convict-appellant, who is continuously in Jail since his arrest and as under the provisions of section 382-B, Cr.P.C. The period of detention has to be considered while awarding sentence of imprisonment. The Jail Superintendent has submitted a report that the accused including the remissions has served out more than 10 years' imprisonment.
9. So far the punishment of Diyat' is concerned, as the major portion of `Diyat' is payable to the minors, Walis of the deceased who are the sons of the convict-appellant, therefore, the payment of Diyat can be adjusted through proper means in this case as per direction of this Court. Only a minor portion of Diyat' has to be paid to the parents of one of the deceased. It has also been brought on record that the convict appellant is a very poor man, as according to the document (( I.& b'! ) he owns only 2 kanals, 3 marlas and 5 sarsahi land, therefore, he is unable to pay `Diyat'.
10. In Azad Jammu and Kashmir the law of Qisas and Diyat as in force in Pakistan has been adapted and specially Chapter XIV of the Pakistan Penal Code after adaptation is in practice in Azad Jammu and Kashmir. We have noticed that according to principle of Shariah section 338-G, P.P.C. Has been incorporated to authorize the Government to make such rules as it may consider necessary for carrying out the purpose of this chapter. After adaptation of this Chapter in Azad Jammu and Kashmir, in Pakistan, section 338-G, P.P.C., for carrying out the purpose of this Chapter in conformity with the principle laid down by Quran and Sunnah has been amended. The apex Court of Pakistan while taking notice of the situation, through an order reported as PLD 2007 SC 315, directed the Federal Government to frame rules under section 338-G, P.P.C. Within a period of three months to give effect to these provisions of law, providing mechanism for creating the funds for the purpose of making payment of Diyat, Arsh and Daman of the convicts, who on account of their weak financial position, are languishing in Jails for want of making the said payment. In compliance, the Federal Govt. Has framed the rules called "Diyat, Arsh and Daman Fund Rules, 2007".
11. According to the constitutional provisions . As envisaged under section 3 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Islam is the State religion. Under the provisions of subsection
(5) of section 31 of Interim Constitution Act, no law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah. Therefore, for doing complete justice in this case we are constrained to exercise our powers under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to issue direction to the Government of Azad Jammu and Kashmir to suitably amend the provisions of section 338-G, APC, in the manner as is now in force in Pakistan. It is further directed that under rules making powers conferred by section 338-G, APC, the Government shall make Diyat, Arsh and Daman Funds Rules, like the Rules as in force in Pakistan, called "Diyat, Arsh and Daman Fund Rules 2007" as are reported, in PLJ 2008 Federal Statute 138.
12. So far the question of payment of Diyat is concerned, we have observed that the appellant has no source to pay `Diyat'. He has some immovable property in his name. As the major portion of `Diyat' is to be paid to the minors, Walis of the deceased victims, Who are the sons of the convict appellant, therefore, we direct that the immovable property owned by the convict appellant, is transferred in the name of minors, Muhammad Bilal and Muhammad Hamza. The convict appellant has no legal authority to transfer this property to any other person. So far the payment of remaining portion of Diyat is concerned, as it has been observed that the convict appellant is a poor person having no source, therefore, we direct the Government of the Azad Jammu and Kashmir that while carrying out our directions, to create Diyat, Arsh and Daman funds and arrange the payment of portion of `Diyat' payable to the legal heirs of the deceased. Thus in view of the serving out of awarded punishment, the convict appellant shall be released forthwith if, he is not required in any other offence.
' In the above stated terms and manner, Appeal No.40 filed by the convict-appellant is partly accepted, hence consequently the Appeal No.41 having no force is dismissed.