' SAJJAD ALI SHAH, J.---The appellant Arshad Ali was arrested on 25-6-2006 in Crime No,136 of 2006 of Police Station Sukhan, Karachi for an offence under section 302 P.P.C. And after full dressed trial by the Court of Sessions Judge, Malir Karachi, vide Judgment dated 22-12-2010 was convicted under section 26541(2), Cr.P.C. And sentenced to death under section 302(b), P.P.C. Twice on account of murder of his wife Mst. Bushra and son Ghufranullah with direction to be hanged by neck till he is dead. The death sentence so 'awarded was subject to confirmation by this Court under section 374, Cr.P.C. Vide Reference No,2 of p11.
2. Briefly, on 25-6-2006 at 1600 hours complainant Muhammad Zaman lodged F.I.R. At Police Station Sukhan, stating therein that in the morning at about 6.00 a.m. When he was. At Peshawar, he received a telephone call from his brother-in-law Arshad who informed him that due to domestic dispute he has committed murder of his wife Mst. Bushra and son Ghufranullah at Bakhtawar Goth Karachi. On receipt of such information, he rushed to Karachi by air and came to know that his brother-in-law Arshad due to domestic dispute has committed Qatl-i-Amd of his sister Mst. Bushra aged about 20/22 years and his nephew Ghufranullah aged about 6-1/2 months by cutting their necks with sharp-edged weapon.
3. The investigation was entrusted to the Inspector Zulfiqar Ali, who on the same day at about 1800 hours arrested the accused and seized his blood-stained clothes which he was wearing. He also recovered the crime weapon (Chhuri). He got the statement of three witnesses recorded under section 164, Cr.P.C. Confessional statement of accused was also recorded before the Judicial Magistrate Malir . And after completion of investigation challan was submitted and the accused was sent up to stand the trial.
4. Charge against the accused was framed at Exh.4 on 9-1-2007 to which he did not plead guilty and claimed trial vide Plea at Exh.5.
5. In order to prove its case, prosecution examined P. W.1 A.S.-I. Badruddin at Exh.7 who produced memo of-arrest and personal search of accused at Exh.7-A, Memo of seizure of clothes of accused at Exh.7-B. P.W.2 Muhammad Zaman (complainant) at Exh.8 who produced F.I.R. At Exh.8-A, Road Certificate at Exh.8-B, receipt of dead bodies of deceased from Edhi Home at Exh.8-C. P.W.3 A.S.-I.
Muhammad Hanif at Exh.9 who produced memo of inspection of dead bodies and inspection of place of incident at Exh.9-A and Inquest Report of both deceased at Exh.9-B and 9-C. P.W.4 Gohar Ali at Exh.10 who produced Memo of pointation and recovery of crime weapon at Exh.10-A. P.W.5 Mst. Bahar Sultan at Exh.11 who produced her statement recorded before the Judicial Magistrate at Exh .11-A . P.W.6 A.S.-I. Riaz Ahmed at Exh.12. P.W.7 Muhammad Afzal Khan at Exh.13 who produced letter for recording the statements of witnesses under section 164, Cr.P.C. Along with order passed thereon by the Judicial Magistrate at Exh.13-A and Exh.13-B, statement of Haider Ali and Bakht Buland at Exh.13-C and Exh.13-D respectively, letter for permission of recording of confessional statement of accused at Exh.13-E, confessional statement of accused Arshad Ali at Exh.13-F. P.W.8 Haider Ali at Exh.14. P.W.9 Inspector Zulfiqar Ali (Investigating Officer) at Exh.15 who produced Roznamcha Entries at Exh.15-A and Exh.15-B, Chemical Examiner Report at Exh.15-C. P.W.10 Dr. Zafar Siyal at Exh.16 who produced Post Mortem Report of deceased Ghufranullah at Exh.16-A, Medical Certificate of cause of death at Exh.16-B and letter for conducting post mortem report at Exh.16-C.
P.W.11 Hidayatullah at Exh.17. P.W.12 Dr. Talat Parveen at Exh.18 who produced Postmortem Report of deceased Mst. Bushra at Exh.18-A, Medical Certificate of cause of death at Exh.18-B. Thereafter prosecution closed its side.
6. Statement of accused was recorded under section 342, Cr.P.C. At Exh.20, wherein, he denied the charges and stated that his confessional statement before the Judicial Magistrate was under the pressure of police, however, he did not examine himself on oath nor produced any witness in his defence.
7. On conclusion of the prosecution evidence trial Court after assessment of evidence convicted the appellant as stated above.
8. Mr. Shaukat Hayat, learned counsel for the appellant has contended that admittedly there is no ocular evidence of the incident and the entire case of the prosecution is based on circumstantial evidence on which capital punishment under section 302(b), P.P.C. Could not sustain as being illegal and without jurisdiction. It was next contended that the appellant was charged for murder of his wife and son and has been awarded capital punishment under section 302(b), P.P.C. Which is illegal and without jurisdiction in view of provisions contained in section 306/307(c), P.P.C. As Qisas for Qatl-e-Amd is not enforceable. Per counsel in such like cases in terms of dicta laid down in the case of Shaikh Muhammad Aslam v. Shaukat Ali (1997 SCM R 1307) and Khalil-uz-Zaman v.
Supreme Appellate Court (PLD 1994 SC 885) maximum punishment upto 14 years may be awarded.
It was further contended that capital punishment cannot be based on retracted judicial confession of the appellant which was recorded after unexplained delay of 13 days before a Judicial Magistrate who was not even competent to record the confession. In support of his contention reliance is placed on the, judgment in the case of Haq Nawaz v. The State (2000 SCM R 785). It was next contended that the prosecution has heavily relied on extra judicial confession of P.W.5 Mst.
Bahar Sultan who has stated in her evidence that she did not know what was recorded in her statement under section 164, Cr.P.C. Per counsel even otherwise the Superior Courts have considered extra-judicial confession as weak type of evidence manufactured by the prosecution specially when it fails to properly investigate the case and to collect the ocular evidence. Reliance has been placed on the case of Abid Mahmood v. The State (2009 PCr.LJ 894), Habib-ur-Rehman v.
The State (2003 PCr.LJ 667) and Jamila Bibi v. The State (1999 PCr.LJ 381). As to recovery of crime weapon, per counsel same has been foisted upon the accused to implicate him in the alleged offence. Per counsel alleged disclosure of the accused during custody and leading the police party to his house on 26-6-2006 at 1815 hours with the delay of 36 hours to get the crime weapon recovered is not only inadmissible but contradictory to the evidence on record. In the end Mr. Shaukat Hayat pleaded that mental state of the appellant at the time of alleged occurrence needs to be examined as from the .Facts and circumstances it appears that the appellant was not sane and normal person and was suffering from mental disorder at the time of alleged occurrence when he cuts throats of his son and wife senselessly without any motive or enmity. Per counsel, in view of the facts and circumstances of the case the prosecution ought to have produced any material to show that the accused was a normal person at the time of occurrence.. He, therefore, prayed that additional evidence be recorded by referring the appellant to the Medical Board including Psychiatrics for his examination.
9. On the other hand Mr. Khadim Hussain, Deputy Prosecutor-General while supporting the judgment contended that prosecution has fully proved the case against the appellant through neutral and natural witnesses. He stated that the defence has not imputed any malice against the witnesses produced by the prosecution nor has pleaded any purpose for false implication of the appellant. According to him a capital punishment can very well be based on retracted confession if corroborated through circumstantial evidence. According to him, the application for medical examination of the appellant at this juncture is afterthought. Per Prosecutor, it was for the defence to have pleaded insanity during the trial, therefore, an afterthought plea does not require consideration. He, therefore, pleaded for the dismissal of the application as well as the appeal and the confirmation of sentence awarded to the appellant.
10. First we would like to reappraise the entire evidence produced by the prosecution to establish the guilt of the appellant in order to ascertain that the same has been appreciated by the trial Court in accordance with settled Principle of law and, thereafter, would find out the evidence and material to respond to the reference made by the trial Court seeking confirmation of death penalty.
11. A.S.-I. Badaruddin who is mashir of arrest and personal search of the accused as well as seizure of blood-stained clothes, was examined as P.W.1 at Exh.7. In his evidence he stated to have left Police Station on-25-6-2006 at 05.30 p.m. Along with ASIP Zulfiqar Ali Bajwa and A.S.-I. Muhammad Hanif for investigating the subject crime and on spy information at about 06.30 p.m. Arrested the accused from City Coach Stand. On personal search of the accused his NIC and cash of Rs,120 were recovered. Mashirnama of arrest of the accused Exh.7-A was prepared at the spot on which he along with A.S.-I. Muhammad Hanif signed as mashirs. He further stated that the accused was brought to Police Station and the clothes which he was wearing on account of being bloodstained were seized by the Investigating Officer in his presence as well as in presence of A.S.-I. Muhammad Hanif. Seizure memo Exh.7-B was prepared to which he along with A.S.-I. Muhammad Hanif stood mashirs.
12. Muhammad Zaman who was the complainant and real brother of deceased Mst. Bushra and maternal uncle of deceased Master Ghufranullah was examined as P.W.2 at Exh.8. He deposed that his sister Bushrra was married to the accused Arshad Ali and out of the wedlock Ghufranullah was born. According to him, on 25-6-2006 in the early morning when he was in Peshawar, he received a telephone call from his brother-in-law accused Arshad informing him that he has committed murder of Mst. Bushra and Ghufranullah, hearing this the complainant flew to Karachi where people informed him that the dead bodies were kept at Edhi Home Mortuary at Sohrab Goth. He thereafter went to Police Station Sukhan and got F.I.R. Of the instant crime recorded which he produced as Exh.8-A. He thereafter obtained road certificate from the police to .Take the dead bodies to his native place which certificate he produced at Exh.8-B. He thereafter received the dead bodies from Mortuary of Edhi Home at Sohrab Goth and produced the receipt as Exh.8-C, took the dead bodies for burial at his native place. In cross-examination, it was suggested that the accused on 17-5-2006 had divorced Mst. Bushra in presence of her mother which suggestion was denied by the complainant for want of knowledge-. It was further suggested that the accused after pronouncing divorce was not ready to take Mst. Bushra to Karachi but her mother insisted to take her to Karachi and after halala remarry her. It was further suggested that the accused had brought Mst. Bushra to Karachi with the sole purpose of arranging halala'and remarrying her. It was also suggested that talks of compromise were on between him and the parents of the accused and a sum of Rs,190,000 was demanded in lieu of compromise or that the said amount was paid. It was lastly suggested that some unknown persons have committed the murder of Mst. Bushra and Ghufranullah and on account of the alleged divorce pronounced by the accused upon his wife, he was falsely implicated.
13. A.S.-I. Muhammad Hanif, Incharge Police Post Rerhi Goth was third witness of the prosecution and was examined as P.W.3 at Exh.9. This witness stated that on 25-6-2006 he was Incharge of Police Post Rerhi Goth, when he received information from Nazeer Bhutto in respect of murder of a lady and infant by one Pathan in his house situated in Bakhtawar Goth. He with staff proceeded to the pointed place where people informed him that accused Arshad was residing in the house who has committed murder of his son and wife. Consequently, he entered into the house and found two dead bodies, one of a lady Mst. Bushra and other of the infant Ghufranullah. Their throats were slit through sharp-edged weapon. The dead bodies were inspected, inquest reports were prepared to which P.W. Bakht Buland and Abdul Rahman signed as mashirs. The joint mashirnama of inspection of dead bodies and place of incident as well as inquest report of both dead bodies were produced from Exh.9-A to 9-C. The accused was brought to police station where his wearing clothes which were stained with blood were seized and a Seizure Memo Exh.7-B was prepared to which he signed as mashir. This witness remained steadfast to his evidence and denied the suggestion that when he reached at the house of accused, the accused was present and informed him that the murder was committed by some unknown persons and on believing his statement, he was not arrested. It was responded that the accused was not present at his house. It was also suggested that the crime weapon was not secured from the spot which suggestion was denied.
14. Gohar Ali, a neighbour of accused Arshad Ali who witnessed the mashirnama of pointation as well as recovery of crime weapon, was the fourth witness of the prosecution and was examined at Exh.10. This witness stated that on 26-6-2006 when he came from work at about 05.45 p.m. He saw that the police had brought his neighbour accused Arshad Ali along with team of Geo News Channel. He along with one Abdul Rahman were called and the accused Arshad took the police inside the house where he along with Abdul Rahman accompanied the police and from the house accused produced stone while saying to have caused injuries to Bushra and Master Ghufranullah through said stone which was seized. Then the accused produced a chhuri lying under a tile and told the Investigating Officer to have committed murder of his wife through said churri and also produced small hammer and stated to have caused hammer injury to his son Ghufranullah.
Mashirnama was prepared to which he signed and was produced at Exh.
10. A.
15. Mst. Bahar Sultan who was a distant relative of accused Arshad. Ali and was his neighbour, was the fifth witness of the prosecution and was examined at Exh.11. She stated that accused Arshad was his distant relative and Ghufranullah was born out of the wedlock of Arshad and Mst. Bushra.
She deposed that Arshad after marriage hrought his wife Bushra at her house where they stayed for two days, whereafter Arshad arranged a separate house and shifted into it. According to this witness on the fateful day Arshad came to her house and told her to have committed murder of Bushra and Ghufranullah.
16. A.S.-I. Riaz Ahmed was the sixth witness of the prosecution and was examined at Exh.12 who lodged the F.I.R. Which was produced by P.W.2 at Exh.8-A. This witness stated to have lodged the F.I.R. On 25-6-2006 at about 4.00 p.m. At the instance of complainant.
17. Muhammad Afzal Khan, Judicial Magistrate was the seventh witness of the prosecution and was examined at Exh.13. This witness recorded Statement under section 164, Cr.P.C. Of P.W. Haider Ali, Bakht Buland and Mst. Bahar Sultan. He also recorded judicial confession of accused. This witness produced letter dated 30-6-2006 from the Investigating Officer for recording Statement under section 164,:. Cr.P.C. Of witnesses Haider Ali, Bakht Buland and Mst. Bahar Sultan alias Bahar at Exh.13-A, a letter dated 4-7-2006 from Investigating Officer at Exh.13-B intimating the presence of three stated witnesses in Court for recording their Statement under section 164, Cr.P.C. Statement under section 164, Cr.P.C. Of P.W. Haider Ali and Bakht Buland were produced by him at. Exh.13-C and 13-D. He also confirmed to have recorded the judicial confession of Mst. Bahar Sultan already produced by her at Exh.11-A. Request from I.O. Dated 30-6-2006 for recording judicial confession of accused Arshad Ali at Exh.13-E. He deposed that judicial confession of accused Arshad Ali could not be recorded on 30-6-2006. He was called on 5-7-2006 for recording of his judicial confession, on that day accused could not be produced by the Jail Authorities and consequently a show cause notice to the Jail Authorities was issued and ultimately on 7-7-2006, the accused was produced and after observing all necessary formalities for ensuring that the confessional statement is voluntary, his confessional statement was recorded which was produced at Exh.13-F.
18. P.W. Haider Ali, a distant relative of appellant Arshad, was the eighth witness of the prosecution and was examined at Exh.14. He deposed that a month prior to the arrival of the accused at Karachi his elder brother Nazeer had made a call and informed him that accused Arshad Ali is arriving at Karachi with his faniily and he should take care in respect of his lodging. When Arshad Ali came, he stayed for about 3 days in his house and thereafter he arranged a separate rental premises for accused Arshad Ali. He stated that after 10-12 days Arshad came to him and informed him that he had divorced his wife and he needed guidance. Consequently, he took accused Arshad to Qari Hidayatullah to whom all facts were disclosed and Qari Hidayatullah advised Arshad that he cannot live with his wife without halala. Qari Hidayatullah then brought Molvi Mufti Shireen who also informed accused Arshad that his wife is haram upon him and he cannot live with her unless she marries someone else and thereafter divorced. He further stated that on 26-6-2006, accused came to his house and took her mother Mst. .Bahar Sultana (P.W.5) to his house and after sometime his mother came back and informed him and his other brother Bakht Buland that Arshad has committed murder of his wife Bushra and son Ghufranullah with knife. He, thereafter, went to the . House of Arshad, who admitted the incident then the police people were called. His 161, Cr. P.Cr.P.C. Statement was recorded and thereafter 164 Cr.P.C. Statement was recorded.
19. Nineth witness for the prosecution was Inspector Zulfiqar Ali, the Investigating Officer of the case, who was examined at Exh.15. According to his evidence, on 25-6-2006 he received the investigation of the instant crime which disclosed that Arshad Ali is nominated accused for the murder of Mst.
Bushra and Master Ghufranullah. On that very date at about 1830 hours, he arrested accused Atshad Ali from City Coach Stop in presence of A.S.-I. Muhammad Hanif and Badaruddin and mashirnama of arrest and recovery Exh.7-A was prepared. He further deposed that blood-stained clothes of the deceased were seized at Police Station through mashirnama Exh.7-B. He further stated that he had issued letter for delivery of corpse and road certificate Exh.8-B and Exh.8-C. He disclosed that during interrogation accused Arshad admitted his guilt and led to the place of incident and effected recoveries. He stated that before leaving police station departure Entry No,14 was made in Roznamcha Register which he produced as Exh.15-A. He stated that the accused brought him inside the house and produced big stone, toothpaste and tooth brush lying near water tank, hammer from a room and churi lying over the slab at the outer wall of the room.
Consequently, mashirnama of pointation and recovery of crime weapon Exh.10-A, in presence of Abdul Rahman and Gohar Ali was prepared. According to him he sealed the case property and brought the accused to Police Station and made an entry at Exh.15-B. Thereafter, he made application for recording 164, Cr.P.C. Statement of P.W. Mst. Behar Sultana, Bakht Buland and Haider Ali as well as confessional statement of accused Arshad Ali which have already been produced at Exh.13-A and 13-E. The statements of three witnesses were recorded on 4-7-2006 whereas, confessional statement of the accused was recorded on 7-7-2006. The report of Chemical Laboratory to ascertain the human blood on the recovered article was produced as Exh.15-C. No significant question was asked except one suggestion "It is correct to suggest that I have not referred Arshad Ali, the accused to psychiatrist for his examination. Voluntarily says he was not suffering from any mental diseases". This suggestion was made without any prior suggestion that the accused was suffering from any kind of mental ailment.
20. Dr. Zafar Siyal, MLO was the tenth prosecution witness and was examined at Exh.16 who produced postmortem report as Exh.16/A and disclosed the injuries sustained by Master Ghufranullah, detailed below:- "Incised wound sharp-edged about 8.2 cm x 2 cm. Muscle structure cut and damaged. Trachea esophagus and vessels cut damaged in front of neck".
' He further deposed that the death of deceased occurred due to acute Cardio Respiratory failure because of acute hemorrhagic shock resulted from sharp cut injury at neck.
21. Likewise, Dr. Talat Parveen, Senior W. MLO was the twelfth witness of the prosecution and was examined at Exh.18. She examined the dead body of Mst. Bushra and found following injuries:- "Incised wound measuring about 8 to 9 cm. Extending from left lateral side of the neck to right lateral neck along with anterior aspect of neck. Profused bleeding".
She deposed that deceased died due to acute Cardio Respiratory failure due to acute hemorrhagic shock, resulted from cut throat with sharp-edge weapon.
22. Hidayatullah who was the Pesh Imam of Rahmania Masjid, was produced as eleventh witness for the prosecution and was examined at Exh.17. According to him, on 13-6-2006 after Asr prayer one namazi Haider brought one person and introduced him as Arshad Ali. That person informed him that he has divorced his wife and wants to consult Mufti so that he can continue with his marriage. Thereafter, this witness brought the accused Arshad Ali to a religious scholar Mufti Shireen Shah who after hearing the accused told him that his marriage stand dissolved and he further cannot live with his ex-wife unless a halala is arranged.
23. Statement of the appellant was recorded under section 342, Cr.P.C. In which he stated to be innocent and falsely implicated. He further stated that he had divorced his wile at Peshawar and had no connection with his wife. He further stated that judicial confession made by him was procured under pressure of police.
24. Scanning of the evidence reflect that the appellant beside confessing his guilt through judicial confession has made extrajudicial confession before four persons viz. Complainant Muhammad Zaman, Mst.. Bahar Sultan, Haider Ali and Bakht Buland. The prosecution examined Muhammad Zaman who is brother-in-law of accused as P.W.2 before whom the accused had committed his guilt on telephone, Mst. Bahar Sultan who was a distant relative of the appellant as P.W.5, who was taken by the appellant to his house shown dead bodies of his wife and son with slit throats followed by confessing guilt. P.W.8 Haider Ali who is son of Mst. Bahar Sultan and also distant relative, who was also told about the incident by the appellant, whereas Bakht Buland on account of his death could not be examined. Besides, the judicial confession finds corroboration from the recovery of crime weapon (chhuri), stone, hammer and blood-stained clothes of the accused followed by post mortem report. It is by now settled principle of law that if a retracted confessional statement is found true, confidence-inspiring and voluntary then there is no need at all to look into for further corroboration and such confession can safely be made basis of capital punishment. Even in the case of Haq Nawaz (supra) cited by the learned counsel for the appellant to contend that capital punishment cannot be based on a retracted confession the Supreme Court in fact had held otherwise by observing that "That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particular". In the instant case we find that the retracted judicial confession not only appears to be true, voluntary and confidence inspiring but also finds corroboration from the circumstantial evidence. Perusal of the retracted judicial confession in the instant case reflects that the conscious of the appellant was pricking on account of living with her deceased wife after having divorced her, and he could not bear the agony of precondition to remarry her, which led to such gruesome incident. It further reflects that after the incident he made extrajudicial confession before her neighbor and relative Bahar Sultan as well as before P.Ws. Haider Ali and Bakht Buland. Both Mst. Bahar Sultan and Haider Ali before whom the appellant made the extrajudicial confession were examined by the prosecution and neither the defence denied the relationship with them nor even suggested enmity or any other reason for false implication. The prosecution further produced Moulvi Hidayatullah as P. W..11 before whom the appellant has narrated the agony of living with his divorced wife.
25. As to the contention of the counsel regarding jurisdiction of the trial Court to award death penalty to the appellant under section 302(b) for the murder of his son and while with reference to sections 306 and 308, P.P.C. And judgment of the Apex Court in the case of Shaikh Muhammad A slam and Khalil-uz-Zaman (supra). In this case the trial Court has awarded death penalty to the appellant under section 302(b) P.P.C. As Ta'zir on two counts firstly on account of murder of his son and secondly, for the murder of his wife. First we would examine the appropriateness of death sentence awarded by the trial Court to the appellant for committing the murder of his son keeping in mind that the son who was just 6-1/2 months of age and after the death of his mother had no Wali beside his father. To appreciate the contention and finding it would be appropriate to reproduce section 306 and 308, P.P.C.:-
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;
(b) 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 front 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 wall of the victim is a direct descendant, how lowsoever, of the offender.
308. Punishment in Qatl-e-amd not liable to qisas. Etc.
(1) Where an offender guilty of qatl-eamd is not liable to qisas under section 306 or the qisas is not enforceable under clause (c) of section 307, he shall be liable to diyat; ' Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person as may be determined by the Court; - ' Provided further that, where at the time of committing qatl-e-amd 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 twenty-five years as ta'zir.
' Provided further that, where the qisas is not enforceable under clause (c) or section 307, the offender shall be liable to diyat only if there is any wali other than. 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 twenty-five years.
(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 twenty-five years as ta zir.
' Perusal of section 306(b), P.P.C. Reveals that Qatl-e-Amd is not liable to Qisas when an offender has caused the death of his child or grandchild, how lowsoever and section 308, P.P.C. Which details the punishment in cases where Qatl-e-Amd is not liable to Qisas provides that "Where an offender guilty of Qatl-e-Amd is not liable to Qisas under section 306, P.P.C. He shall be liable to Diyat, therefore, the trial Court committed error in sentencing the appellant to death without the application of section 311, P.P.C. As in accordance with section 306(b), P.P.C. Death sentence could not have been awarded to appellant for causing the death of his child without charging him on account of fasad flu arz. In so holding we are guided by the judgment of the Apex Court in the case of Khalil-uz-Zaman (supra) rightly referred to by the counsel for the appellant, relevant portion of the judgment reads as follows:-- "Before parting with the judgment, we would like to observe that the question of convicting the accused under appropriate section of the Code/law and awarding him legal sentence requires utmost care on the part of the Courts. Unfortunately, requisite care has not been exercised in this case. It is the duty of a Court to administer justice within the four corners of the Code according to the canons of law regardless of the lack of proper assistance by the learned counsel for the parties. The Court ought to punish the accused strictly in accordance with law. It was apparent on the face of record that Mst. Amina Wall of the deceased was direct descendant of the ,offender.
Language of sections 306 and 308, P.P.C. Is plain enough to show that Qatl-e-Amd committed by the petitioner was not liable to Qisas and Qatl-e-Amd not liable to Qisas is specifically punishable under section 308, P.P.C. Only. So, the petitioner could be convicted under section 308, P.P.C. And not under section 302, P. P. C. To death as Qisas or Ta'zir. "(Bold by us to lay emphasis.)
26. Though we have noticed that after the pronouncement of judgment by the Apex Court in the case of Khalil-uz-Zaman in the year 1994, section 311, P.P.C. Was substituted in the year 1997 and was amended vide Act I of 2005 by empowering the Court. To award death penalty or imprisonment for life despite compounding of Qisas where all the walis do not waive or compound right of Qisas, or where the principle of fasad fil arz is attracted. In the instant case the offender is the sole wali of his murdered son and neither any charge on account of fasad fl arz was framed or the punishment was so awarded. As to the quantum of sentence, the Apex Court in the circumstances made following observations in the case of Muhammad Aslam:--- "It may also be pointed out that subsection (1) of section 308 deals with the punishment in Qatl-e- Amd not liable to qisas by providing that where an offender guilty of Qatl-eAmd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat. It may be noticed that first proviso to the above subsection lays down that where the offender is minor or insane, diyat shall be payable either from his property or by such person as may be determined by the Court. Whereas second proviso to the above subsection provides that where at the time of committing Qatl-e-Amd 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 for either description for a term which may extend to fourteen years as. Ta'zir. It may be pointed out that the third proviso to above subsection lays dowh 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 for either description for a term which may extend to fourteen years as Taizir." (Bold and underlined by us to lay emphasis)
27. Coming to the death sentence awarded to the appellant on account of murder of his wife, admittedly, after the murder of his son by the appellant, he cannot be given the benefit of section 306(c), P. P.0 . Which provides that Qatl-e-Amd is not liable to Qisas when any wali of the victim is a direct descendant, how lowsoever, of the offender. In the instant case since there is no descendent of the offender who could be Wali of deceased, therefore, the death sentence awarded to the appellant on account of committing Qatl-e-Amd of his wife in absence of any issue as Ta'zir does not require interference. In the case of Shaikh Muhammad Aslam referred to by counsel for the appellant, the Apex Court had held that "if an accused person has been awarded death sentence as Qisas same can only be undone under sections 309 and 310, P.P.C. However, if the sentence is awarded by way of Ta'zir the Court has the power to grant permission to the legal heirs of the deceased and the accused to compound the offence under subsection (2) of section 345, Cr.P.C., which will result in acquittal under subsection (6) thereof if the compromise is accepted by the Court". In this case death penalty has been awarded to the appellant under section 302(b), P.P.C.
As Tazir for the murder of his wife which keeping in view the provision of section 345(2), Cr.P.C. Can be compounded by all the legal heirs of the deceased with permission of the Court and until and unless all the walis/ legal heirs compound the offence compromise cannot be allowed. There is even no such request before this Court, therefore, the submission is devoid of merits and rejected.
Reference can readily be made to the case of Khan Muhammad v. The State (2005 SCM R 599) where the Apex Court has observed that the offence wherein the sentence has been awarded as Tazir under section 302(b), P.P.C. Is not compoundable unless all the legal heirs of the deceased agreed for the same. Likewise, in the case of Manzoor Hussain and 4 others v. The State (1994 SCM R 1327) the Apex Court held as follows:-- "We have anxiously considered the arguments of the learned counsel for the parties and have minutely gone through the record of the case. Admittedly, Mst. Sakina is the wife of Muhammad Siddique deceased and being his Shari heir falls within the definition of "Wali" and entitled to "Afw" under section 309, P.P.C. And to compound the Qisas under section 310, P.P.C. According to her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the appellants in any way as all the appellants were tried, convicted and sentenced under Ta'zir and not Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be their sister cannot come to their rescue in any way. The trial Court has fairly dealt with this aspect of the case and we have no reasons to differ with it."
28. Now we would take up the contention raised on behalf of the appellant that he was suffering from mental ailment at the time when he committed such gruesome act. Counsel while placing reliance 1-1 the judgment of the Apex Court in the case of Fauqual Bashir v. The State (1997 SCM R 239), Sher Afzal v. The State (PLD 1960 (W.P.) Peshawar 66) seeks remand of this case to ascertain mental condition of the appellant. In the case of Fauqual Bashir (supra) referred to by the counsel documentary evidence was placed before the trial Court reflecting that the accused had remained in mental hospital for treatment, despite the Court did not resort to the proceeding under sections 464/ 465, Cr.P.C. Likewise in the case of Sher Afzal (supra) the plea of insanity was before the trial Court and the accused had remained in the mental hospital under the observation of the doctor, despite the trial Court failed to inquire into the question of capacity of the accused to make his defence with the aid of assessor. In the instant case perusal of the record reflects that the defendant nowhere pleaded mental ailment during the trial nor produced any documentary evidence to show that at any point of time the appellant had complained of any type of mental ailment. Even in the memo of appeal no such ground has been taken and after two years of filing appeal an application, to refer the appellant to medical board to ascertain his mental condition, has been moved. Perusal of this application would reflect that nowhere it is pleaded that the appellant had any previous record in respect of his mental ailment, on the contrary the application states that "It appears that the appellant was not sane and normal person rather was suffering from mental disorder at the time of alleged occurrence when he cut the throats of his son and wife senselessly without any motive or enmity." The application further states that the prosecution has failed to produce any witness to prove that the appellant did not suffer from mental ailment. Firstly the application appears to be on surmises and conjecture and secondly it is not for the prosecution to prove the mental fitness of the accuse before prosecuting him for an offence. In the circumstances, half- hatred afterthought plea of mental ailment is not found worth consideration.
29. In view of what has been discussed above, we while partly accepting this appeal modify the sentence of the appellant on account of murder of his son to imprisonment for 14 years as Ta'zir, whereas dismiss the appeal on account of committing the murder of his wife by maintaining the death penalty so awarded. Reference is accordingly answered.