' MAMOON KAZI, J.---Facts of the case are that respondents Nos. And 3 were facing charges under section 302/34, P.P.C., before the Additional Sessions Judge, Bhakkar. It has been alleged that they have caused death of Mst. Samina Bibi. F.I.R. In respect of the incident was lodged on 4-12-1991.
Although, the said respondents, who are the mother and the sister respectively of the deceased, had relinquished their right to Qisas but the petitioner, who is the husband of the deceased, did not do the same. An application was, however, moved on behalf of the said respondents to the learned Judge indicating that the case of the respondents fell within the purview of section 308, P.P.C. And consequently they could not be charged under section 302, P.P.C. The said application was granted vide order dated 7-1-1993. The petitioner approached the High Court in revision, but the order of the learned Additional Sessions Judge was upheld and the revision was dismissed as the learned Judge in the High Court was of the view that the said respondents being the mother and the sister of the deceased, were governed by the provisions of clauses (b) and (c) of section 306 of the Penal Code and, therefore, they were liable to be charged under section 308 thereof.
2. Leave was granted by this Court to consider whether charge against A respondents Nos.2 and 3 could be altered from section 302 to section 308, P.P.C.
3. Relevant provisions of the P.P.C., namely, sections 302, 306 and 308 which require examination, are reproduced as follows:-- "302. Punishment of Qatl-i-Amd.--Whoever commits Qatl-i-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 Ta'zir 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 for either description for a term which mail extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
306. Qatl-i-Amad not liable to Qisas.--Qatl-e-Amad 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 with 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.
308. Punishment in Qatl-i-Amd not liable to Qisas, etc.--(1) Where an offender guilty of Qatl-e- Amad 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 realise 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 Ta-zir: ' 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 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 Ta'zir.
(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 Ta'zir."
4. These provisions which were substituted by Criminal Law Amendment) Act, 1997 which came into force on 11-4-1997, indicate that for committing Qatl-e-Amd, the offender would be liable to be punished either with death as Qisas or with death or imprisonment for life as Tazir, subject, however, to the provisions of the newly-substituted Chapter relating to the offences affecting human body. Section 306, P.P.C. Further indicates that Qatl-e-Amad shall no be liable to Qisas in certain cases as enumerated therein. One such case, according to the said section, as per clause
(b) thereof can be, where the offender causes death of his child or grandchild, howlowsoever. The other cases referred to in section 306 are not relevant to the present case. Section 308, P.P.C.
Further indicates that where an offender is not liable to Qisas or Qisar is not enforceable, he shall be liable to Diyat. In the present case the respondent No,2, being the mother of the deceased, is not liable to Qisas but she is liable to Diyat. Therefore, the said application was made before the learned Sessions Judge, as pointed out earlier. But the question however is, whether the accused could be first charged under section 308, P.P.C. And then tried for the said offence, without being charged under section 302, P.P.C., which is the punishing section.
5. There appears to be no controversy in regard to the fact that section 308, P.P.C., can only be invoked where a person is found to be guilty of Qatl-e-Amd, but he is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307. Therefore, even if section 308, P.P.C., is applicable, it cannot be applied until first the offender is found guilty of Qatl- e-Amad under section 302, P.P.C. Consequently, it is imperative that the accused is first charged for Qatl-e-Amd under section 302, P.P.C. And only when such charge has been established, that the provisions of section 308, P.P.C. Can be applied to the case. In the present case, the learned Additional Sessions Judge has substituted the charge framed under section, 302, P.P.C., with that under section 308, P.P.C. Which is not warranted by law. The provisions of section 308, P.P.C. Would be automatically attracted in a case where the accused, found guilty of Qatl-i-Amd, is not liable to Qisas as provided in section 306, P.P.C., or Qisas is not enforceable as provided under clause (c) of section 307, P.P.C. The provisions of section 308, P.P.C., are to apply through their own force when a case falls under the provisions of section 306, P.P.C. Or clause (c) of section 307, P.P.C. In fact, the said provisions are to be read together with section 302, P.P.C., and not in isolation. Therefore, the learned Courts below were clearly in error.
6. In the result, the appeal is allowed and the case is remanded to the F learned Additional Sessions Judge for taking further action in accordance with the law.