' SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No.76-J of 2006 titled as Muhammad Ramzan v. The State filed by Muhammad Ramzan (appellant) against his conviction and sentence and Criminal Revision No.1132 of 2006 titled as The State v. Muhammad Ramzan, prepared by the office on suo motu notice by this Court vide order dated 06.12.2006 passed in Crl. Appeal No.76-J of 2006, as both these matters have originated from the same judgment dated 28.06.2004 passed by the learned Sessions Judge, Toba Tek Singh, in case FIR No.259 dated 12.08.2003, registered under sections 302, 324 and 34, P.P.C. At Police Station Rajana, District Toba Tek Singh whereby, the appellant was convicted under section 308, P.P.C. And sentenced to rigorous imprisonment for ten years as Ta'zir with Diyat amounting to Rs.2,76,000/-.
The amount of Diyat was ordered to be payable from the property of the accused or by his parent, if he owns no property. The appellant was ordered to be kept in jail till the payment of Diyat. He was also extended the benefit of section 382-B of the Code of Criminal Procedure, 1898.
2. Brief facts of the case, as unveiled by Muhammad Saeed, complainant (PW-7) in his statement (Exh-PJ/1) on the basis of which formal FIR (Exh-PJ) was registered, are that he is resident of Chak No.501/G.B and labourer by profession. His son Fiaz Ahmad aged about 15/16 years was servant of Aurangzaib, co-accused (tried separately being adult). On 02.08.2003 at about 3/4 p.m, he (complainant) along with Allah Ditta (given up PW) and Muhammad Yar (PW-6) went to the Dera of Aurangzaib, co-accused to fetch salary of his son Fiaz Ahmad (deceased) situated in the area of Chak No.336/G.B where Muhammad Amjad (CW-1) and Fiaz Ahmad (deceased) were present. He (complainant) demanded the salary of Fiaz Ahmad (deceased) from Aurangzaib, co-accused who instead of giving the same started giving threats upon which, Fiaz Ahmad (deceased) and Muhamniad Amjad (CW-1) stopped him. Aurangzaib, feeling his insult asked his other servant Muhammad Ramzan (appellant) to pick his gun and shoot them, upon which, Muhammad Ramzan picked the gun and made one fire at Fiaz Ahmad (deceased) which landed on his left shoulder and neck and second fire on Muhammad Amjad (CW-1) which landed on his right bicep.
Fiaz Ahmad due to fire shot succumbed to the injury at the spot whereas, Muhammad Amjad became seriously injured. Muhammad Ramzan and Aurangzaib fled away from the spot while raising lalkaras. The occurrence was witnessed by him (complainant), Allah Ditta (given up PW) and Muhammad Yar (PW-6).
3. Muhammad Ramzan (appellant) was arrested in this case on 10.08.2003 by Muhammad Shafique, SI (PW-9) who, on 22.08.2003, while in police custody, after making disclosure, got recovered gun (P-3) which was taken into possession vide recovery memo. Exh-PG. After completion of investigation, report under section 173 of the Code of Criminal Procedure, 1898 was submitted in the learned trial court. The learned trial court after observing all the pre-trial codal formalittes, indicted the appellant to which he pleaded not guilty and claimed trial. The learned trial court after a full dressed trial finding the appellant guilty convicted him under section 308, P.P.C. as mentioned above on the ground of his minority, hence, this appeal.
4. At the very outset, learned counsel for the appellant and learned Deputy Prosecutor General contend that the learned trial court has erred while passing the conviction under section 308, P.P.C.
As the provisions of section 308, P.P.C. Are applicable in a case where proof of qatl-i-amd liable to qisas is available but the qisas could not be enforced due to the reasons mentioned under section 306, P.P.C. Whereas, in the instant case, the proof of qatl-i-amd liable to qisas is not available and conviction was to be passed as Ta'zir and in that situation, the appellant could not be convicted under section 308, P.P.C. Finally, both, learned counsel for the appellant and the learned Deputy Prosecutor General pray that the case be remanded back to the learned trial court to rewrite the judgment after hearing the parties.
5. Heard. Record perused.
6. We have observed that in this case, the appellant was convicted under section 308, P.P.C.
Whereas, it is, by now, a well settled proposition of law that conviction under section 308, P.P.C. Can only be passed in a case in which proof of qatl-i-amd liable to qisas as provided under section 304, P.P.C. Is available but the conviction cannot be passed as qisas due to the reasons given in sections 306 and 307, P.P.C. Whereas, in the instant case, sufficient proof of qatl-i-aind liable to qisas is not available on record and the conviction was to be passed as Ta'zir and where the conviction can only be passed as Ta'zir and not as qisas, the provisions of sections 306, 307 and 308, P.P.C. Cannot be applied. In this regard, guidance is sought from the esteemed judgment pasted by the Hon'ble Supreme Court of Pakistan in the case of Zahid Rehman v. The State (PLD 2015 SC 77) in the light of which it is held that the judgment passed by the learned trial court convicting the appellant under section 308, P.P.C. Is not sustainable in the eye of law.
7. Hence, in view of common stance taken by all concerned and the case law referred above, the impugned judgment dated 28.06.2004 passed by the learned Sessions Judge, Toba Tek Singh is set aside and the matter is remanded back to the learned trial court with the direction to rewrite the judgment after hearing both the parties within four weeks after receipt of this judgment and till then the appellant would remain on bail subject to his furnishing bail bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge, Toba Tek Singh.
8. The case is sent to the learned Sessions Judge, Toba Tek Singh, who may decide the matter himself or may entrust the same to any other court of competent jurisdiction. Muhammad Ramzan (appellant) is directed to appear before the learned Sessions Judge, Toba Tek Singh on 20.06.2015.
Office is directed to transmit the relevant record to the learned Sessions Judge, Toba Tek Singh forthwith. Both these matters i.e. Criminal Appeal No.76-J of 2006 and Criminal Revision No.1132 of 2006 are disposed of accordingly.