1. ' FAROOQ ALI CHANNA , J.---The appellant has filed the instant Criminal Jail Application against the judgment dated 21-8-2008 passed by learned IInd Additional Sessions Judge, Thatta in Sessions Case No,46 of 2004 culminated F.I.R. No,9 of 2004 Police Station Ghorabari, under sections 302 and 504, P.P.C. Convicting the appellant under section 302(c), P.P.C. And sentencing him to undergo R.I.
2. For 25 years and to pay Diyat of Rs, 2,75,762. The appellant was extended benefit of section 382-B, Cr.P.C.
3. ' Briefly, the facts of case are that complainant Faqueer Muhammad lodged F.I.R. That on 5-3-2004 he along with his nephew deceased Abdul Razzaque, relatives Khuda Bux and Habibullah was sitting at the hotel of Miandad. At about 6-15 p.m. Accused Suleman alias Saloo having hatchet in his hand came there, took out pistol from the fold of his shalwar and fired at Abdul Razzaque on his back. Abdul Razzaque after receiving fire shot injuries fell down, accused thereafter inflicted hatchet blows on the legs of Abdul Razzaque. The complainant party tried to rescue Abdul Razzaque but accused threatened them and ran away. The complainant and other witnesses thereafter saw Abdul Razzak lying dead, they arranged for Datsun and brought the dead body at Police Station Ghorabari where complainant lodged F.I.R.
4. ' The Investigating Officer carried out the investigation, recorded statement of prosecution witnesses, visited the place of incident, arrested the accused/appellant, recovered the incriminating weapons and after completing the investigation submitted challan.
5. ' The prosecution, to substantiate the charge, examined seven witnesses, out of which complainant Faqeer Muhammad, P.Ws. Habibullah and Miandad being the eye-witnesses of the occurrence, in their evidence supported by the prosecution before trial Court. Their evidence was corroborated by the mashirs of arrest and recovery, they have also narrated in detail the arrest of accused/appellant and recovery of incriminating weapons.
6. ' Learned counsel for the appellant, during arguments, has mainly focused the relationship of prosecution witnesses with deceased and has contended that the incident had taken place in thickly-populated area, during day time but no person of locality has been cited as witness.
7. Learned counsel has further contended that the witnesses being interested inter se their evidence require independent corroboration, which in this case is missing. Learned counsel has further contended that the Investigating Officer has prepared 4/5 mashirnamas on different dates and it was astonishing the mashirs were same and they have not explained their presence all the times during preparation of such mashirnamas, their evidence does not inspire confidence. However, learned counsel has admitted that except few minor contradictions no material contradiction has come on record favourable to appellant. Learned counsel further contended that although no material contradictions have come on record but true fact is that deceased Abdul Razzaque was murdered by one Muhammad Ali due to matrimonial dispute with the complainant party and the appellant was implicated in this case due to old dispute over the landed property.
8. ' Learned Assistant Prosecutor-General, Sindh has contended that there are no contradictions in the evidence of prosecution witnesses to create even slight doubt in prosecution case, nor the appellant has alleged enmity with any of the prosecution witness as such the prosecution witnesses had no reason to exonerate the actual killer and implicate an innocent person falsely.
9. Learned A.P.G. Has further contended that learned counsel for the appellant has admitted that there are few minor contradictions which are n ,t fatal to the prosecution case.
10. I have perused the evidence of prosecution witnesses, they all are in consonance with each other on each aspect of the case. P.W. Miandad is caste-fellow of the complainant party so also of appellant, however he has no relationship with them as such he was an independent and natural witness, per prosecution P.W. Miandad was proprietor of hotel where this incident took place and at the time of incident he was preparing tea to serve his customers as such his presence at the time of incident at the place of wardat was natural, he has also confirmed the presence of complainant and other witnesses. P.W. Miandad in his evidence has fully supported the prosecution and narrated the incident in detail. The unshaken evidence of prosecution witnesses appears to be reliable and inspires confidence. The defence has not proved any reliable motive or enmity of complainant party to implicate the appellant falsely. The incident had taken place at about 06:15 p.m. In bright day time as such there is no question of mistake in identification of appellant who was relative and known to each prosecution witness. The ocular testimony is corroborated by medical evidence. As per medical evidence the deceased had received fire shot injuries on his back and hatchet injury on his legs which corroborates the contents of F.I.R. Injury No,5 was lacerated over wound entrance with inverted margin blackening around with blood infraction shows that injury was caused from close, range which corroborates the evidence of eye-witnesses who have deposed that when accused/appellant reached behind deceased, he fired at him. The motive behind the incident was dispute between the parties over landed property which was admitted by the appellant himself while suggesting that he was involved in this case falsely due to enmity over landed property, this version has not been proved as mentioned above.
11. For the reasons stated above I have come to the conclusion that the trial Court while passing the impugned judgment has considered and discussed each aspect of the case and convicted the appellant on the basis of unimpeachable and unshaken evidence. The impugned judgment does not suffer from misreading or non-reading of evidence. However, the trial Court while convicting the appellant under section 302(c), P.P.C. Has ignored the basic principle of law that the said section shall apply only to those cases, where according to the injunction of Islam, the punishment of QISAS is not applicable.
12. ' It would not be out of context to mention that the legislatures have divided Qatl-e-amd in three categories as under:--
(a) Qatl-e-amd which is punishable with death as Qisas;
(b) Qatl-e-amd punishable with death or life imprisonment as Ta'zir; and
(c) Qatl-e-amd punishable with imprisonment of either description for a term which may extend to twenty five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
13. To prove charge under section 302, P.P.C., the provisions of section 304, P.P.C. Plays pivotal role in determining fate of guilt, where evidence as envisaged under section 304, P.P.C. Is proved, the accused shall be punished under section 302 Part (a), P.P.C. And sentenced to Qisas. The evidence required under section 304, P.P.C. Reads as under:--
(a) the accused makes before a court competent to try the offence a voluntary and true confession of the commission of the offence;
(b) by the evidence as provided in Article 17 of Qanun-e-Shahadat Order, 1984.
14. Where an unimpeachable evidence inspiring confidence proving the charge of Qatl-e-amd has been brought on record but not fulfilling the conditions laid down under section 304, P.P.C. As referred above, the accused may be convicted under section 302 Part (b), P.P.C. And sentenced for Ta'azir.
15. ' However, where evidence fulfils the requirements of section 304, P.P.C. Has been brought on the record, but sentence of Qisas cannot be applied/enforced because of bar imposed under section 306, P.P.C., the accused be convicted under section 302(c), P.P.C. And sentenced accordingly. The ingredients of section 306, P.P.C. Reads as under:--
306. Qatl-e-amd not liable to qisas:---Qatl-e-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 with himself in the commission of the offence 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 howlowsoever; and
(c) when any wali of the victim is a direct descendant, howlowsoever, of the offender.
16. In this case the evidence as required under section 304, P.P.C. Is not brought on record, nor the Case falls within the ambit of section 306, P.P.C., therefore the appellant cannot be convicted under section 302(c), P.P.C. I therefore, modify the conviction under section 302(c), P.P.C. Into section 302(b), P.P.C. And sentence of 25 years' R.I. Into imprisonment for life as Ta'azir. I also modify the order of payment of Diyat amount into payment of Rs, 3,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. In default thereof to suffer S.I. For six months more.
17. The appellant shall be entitled to benefit of section 382-B, Cr.P.C.
18. ' With the above modification in the conviction and sentence the appeal is dismissed.