SHAHJEHAN KHAN YOUSUFZAI, J.--- This appeal arises from the judgment of Sessions Judge, Mansehra, dated 19-5-1994 whereby appellant was tried for a charge under section 302, P.P.C. Vide FIR'. No.37, dated 2-4-1993 of Police Station Garhi Habibullah, and on finding him guilty of committing Qatl-e-Amd of his wife was convicted under section 302(B), P.P.C. And sentenced him to life imprisonment as Tazeer and also fined him for Rs.10,000. He was granted benefit of section 382-B of the Criminal Procedure Code.
2. The prosecution case as set up at the trial in brief is that Muhammad Aslam complainant (P.W.1) lodged a report vide Murasila Exh.P.A./1 on 2-4-1993 at 6-30 a.m. In his village Lari, that 2/3 days prior to occurrence he had gone to Abottabad where he heard about the occurrence and the same night returned to his village, where he was informed by his wife Mst. Sari Jan that yesterday in the afternoon his daughter Mst. Zaitoon wife of Shabeer was done to death by her husband Shabeer son of Amir Khan by inflicting her axe blows with the conivance of his real brothers Nazir and Rafiq. The occurrence was said to have been witnessed by his grandson namely, Sheraz aged about 10/11 years, and that Shabeer was said to have been witnessed while running after the commission of offence by general public. The complainant also disclosed that they are not on visiting terms with each other for the last 5/6 years due to land dispute. The dead body of the deceased was reported to be lying on the spot, and he charged Shabeer (appellant), his two brothers Nazir and Rafiq for the murder of his daughter Zaitoon. The report was incorporated in F.I.R. Exh.P.A. Abdul. Majid Khan S.H.O. P.W.7 initiated investigation, rushed to the spot, prepared injury sheet Exh.P.E. And inquest report Exh.P.F. Of deceased Mst. Zaitoon. The dead body was despatched for post-mortem examination to the mortuary. He also prepared site plan Exh.P.B.
On the pointation of P.Ws. During spot inspection he took into possession blood-stained earth Exh.P.1, blood-stained Chadar Exh.P.2, blood-stained axe also having hair of deceased Exh.P.3 and blood-stained shirt of deceased Exh.P.4. Accused Shabeer was arrested in the case and was produced for recording his confessional statement before a Magistrate on 6-4-1993 where his confessional statement Exh.P.H. Was recorded. The blood-stained articles were sent to Chemical Examiner vide application Exh.P.J. And a positive report Exh.P.K. Was received from Chemical Examiner.
3. Muhammad Aslam complainant recorded his statement under section 164, Cr.P.C. Wherein he abandoned the charge against Nazir and Rafiq brothers of appellant who were charged in the F.I.R.
For abetment in the commission of the offence.
4. Challan was submitted against Shabeer appellant who was charge-sheeted by Sessions Judge, Mansehra on 29-11-1993 to which he pleaded guilty and prayed for mercy of the Court. Yet in reply to another question he said "I plead guilty because a case against me has been submitted in this Court and I can do nothing even if I deny it". Regarding the murder of his wife he offered the following explanation:-- "The day on -which my wife was murdered, I was not present in the house. I was forced by my relatives to give a statement about the murder of my wife. Since I have made a confession before a Magistrate, therefore, I have pleaded guilty, otherwise I am innocent."
In this state of affairs the Court asked the prosecution to adduce evidence. The prosecution produced 9 witnesses in all including Muhammad Aslam complainant P.W.1 whose version is hereby and not helpful to establish the guilt of accused, however, he set the law in motion by making a report Exh.P.A./1, the only eye-witness namely, Sheraz the son of accused and deceased who appeared as P.W.2 but he resiled from his statement recorded under section 164, Cr.P.C. During investigation and on the request of prosecution, was declared hostile and cross-examined by prosecution, his statement is also not fruitful for prosecution.
5. The prosecution case solely depends upon the confessional statement of accused-appellant duly corroborated by recoveries of blood-stained articles during investigation, positive report of the Chemical Examiner and the medico-legal report. The trial Court has recorded conviction of the appellant after believing the confessional statement as true and without any duress or pressure coupled with tendency of pleading guilty in response to the charge and circumstantial evidence in the shape of blood-stained articles including the weapon of offence and the post-mortem report proved by lady doctor Shahnaz Mubashar (P.W.9) as corroboration of the confessional statement.
6. At the very outset the learned counsel for the appellant contended that appellant could not be awarded punishment under section 302(a)(b)(c) of the P.P.C. And the accused-appellant even if found guilty of Qatl-e-Amd of his wife leaving behind 5 minor children could be punished under section 308, P.P.C. For payment of Diyat. In support of his contention he referred to Khalil-uzZaman v. Supreme Appellate Court Lahore and 4 others reported in PLD 1994 SC
885. The dictum laid down by their Lordships of the Supreme Court is as under:-- "Ss. 302(a), 306(c), 307 & 308---Qatl-e-Arnd committed by the husband of his wife leaving behind child/children was not liable to Qisas---Courts had no lawful authority/jurisdiction/power whatsoever to convict the accused under S.302, P.P.C. Or impose penalty of death on him."
7. The learned Assistant Advocate-General appearing for State and learned private counsel for complainant frankly conceded the above legal contention at the Bar.
8. We have gone through the file with the valuable assistance of the learned counsel for the parties and have come to the conclusion that in view of the facts and circumstances of the case accusecF-Ippcllant has rightly been held guilty of committing Qatl-e- Amd of his wife without pre-meditation and the confessional statement of accused-appellant recorded by a Magistrate immediately after arrest, has been corroborated by sufficient material on file. His conduct shows that he was feeling guilty even after 8 months of the occurrence when produced from jail for framing of the charge, and straightaway pleaded guilty in the following words:-- "I plead guilty and place myself on the mercy of Court."
In the aforesaid factual position the point for determination is that whether the trial Court was competent to convict accused-appellant under section 302, P.P.C.?
Some of the relevant provisions of Pakistan Penal Code are advantageously reproduced:-- "S.
300. Qatl-e-Amd.--- Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so immediately dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-e-Amd.
"302. Punishment of Qatal-e-Amd.--- Whoever commits Qatal-e- Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished 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."
"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 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 grand-child, how low so ever; and
(c) when any Wali of the victim is a direct descendant, how low so ever, of the offender."
"307. Cases in which Qisas for Qatl-e-Amd shall not be enforced Qisas for Qatl-e-Amd shall not be enforced in the following cases, namely:--
(a) when the offender dies before the enforcement of Qisas;
(b) when any Wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and
(c) when the right of Qisas devolves on the offender as a result of the death of the Wali of the victim, or on the person who has no right of Qisas against the offender."
"308. Punishment in Qatl-e-Amd not liable to Qisas etc.--- (1) Where an offender guilty of Qatl-e- Amd is not liable to Qisas under section 306 of 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 fourteen years as Tazir.
Provided further 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 of either description for a term which may extend to fourteen years as Tazir.
(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 fourteen years, as Tazir."
9. It is an admitted position that deceased Mst. Zaitoon was the legally wedded wife of accused-appellant and five children were born from their wedlock who are Shiraz, Shehzad (sons), Asma (daughter), Nawaz (son) and Nazima (daughter) at present of the age of 17-1/2 years, 15 years, 13 years, 11 years and 9 years respectively. (The names. And ages of minor children were given to us by the learned counsel for complainant. The minors were present in Court and we have also verified from them their names). These minor children are the only Walis of the victim (deceased) and the direct descendants of the offender. In this view of the matter the punishment to which the appellant is liable, will be under clause (c) of section 306 punishable under section 308(1), P.P.C. And the trial Court has wrongly, illegally, and without any power convicted under section 302(b) of the P.P.C.
10. There seems great wisdom in not providing Qisas in case where the Wali or Walis of the victim are the descendants of the offender, because in such a situation the heirs would suffer for no wrong. The Courts in such a situation shall look after the interest of minors and shall award them Diyat from their father, found guilty of Qatal-e-Amd of their mother. The Court can award punishment as Tazir under clause (2) of section 308, P.P.C. Apart from awarding Diyat keeping in view the facts and circumstances of the case upto fourteen years. Taking into consideration the clean breast confession of the appellant wherein he has stated in these words:- . "On the day of occurrence I woke-up at 9-30 a.m. I asked my wife Mst. Zaitoon deceased to serve me the lunch, but she was annoyed as I woke up too late. She told me that I should arrange myself.
She was reluctant to serve me the lunch. I was also annoyed due to the mishehaviour of my deceased wife Zaitoon. I was myself arranging the lunch as a result of which my right hand was burnt, as a result of which 1 abused her. She also abused me in exchange. Then I gave two axe blows to Mst. Zaitoon on her head. She succumbed due to the injuries. Due to sudden quarrel between me and my deceased wife Zaitoon the relations were strained."
11. The aforesaid narration shows that the murder of deceased Mst. Zaitoon was not the result of pre-planning nor there was such motive but due to sudden exchange of hard and harsh words between the appellant and the deceased, the occurrence took place. In these circumstances it is not a fit case where maximum punishment as Tazir could be awarded.
12. In the light of the facts and circumstances of the case we accept the submissions of the learned counsel for the defence, that the conviction and sentence of appellant Shabeer Ahmed is not maintainable for the murder of Mst. Zaitoon under section 302(b), P.P.C. Consequently while partially accepting this appeal we accordingly set aside the conviction and sentence of the appellant under section 302(b), P.P.C. And order that in view of sections 306 and 307, P.P.C. The appellant who is husband of the deceased is her Wali so we alter the conviction of the appellant to one under section 308, P.P.C. And keeping in view the peculiar circumstances of this case award him sentence of imprisonment already undergone and direct him to pay Diyat amount of 2,04,000 payable to the minor children born out of their wedlock. The said amount shall be deposited in National Bank of Pakistan Mansehra in the names of minors, who shall get their respective legal shares on attaining majority.
13. We are informed that the financial position of the appellant is not such, that he could pay the Diyat amount in lump sum. Therefore, we order that he should pay the said amount in eighteen equal instalments within a period of three years from today, by depositing each instalment in the said bank, whereafter he should be released from jail. If in case, the appellant, could deposit the amount of Diyat earlier than the period fixed above, he shall be released from jail, if not required in any other case. During the period, when the Diyat amount or part thereof remain outstanding, he shall be treated as a convict, undergoing simple imprisonment.