1. ' This jail criminal appeal has been filed by Muhammad Kamal, convict-appellant, against his conviction under section 3.16, P.P.C. On the charge of Qatl-e-Shibh-i-Amd and the sentence of Diyat amounting to Rs,2,40,000 payable to the legal heirs of Umar Gul, deceased, in three equal instalments of Rs,80,000 per year from the date of judgment i,e, 20-3-1996 of the learned Additional Sessions Judge/Izafi Zilla Qazi. Due to non-payment of the amount of Diyat, the appellant was kept in jail for undergoing simple imprisonment.
2. According to the prosecution case, on 25-9-1993 Mst. Bibi lodged a report to the effect that her husband (Umar Gul) had gone to Karora Bazar on 24-9-1993 for shopping when at about 2 p.m.
2. The villagers brought his dead body to the house and informed her that accused Muhammad Kamal has committed the murder of her husband in the way while he was coming back from the Bazar. The accused Muhammad Kamal was arrested from his house on the same day and the police also recovered a blood-stained stick, the alleged crime weapon from his house. The accused was produced before a Magistrate, where he confessed his guilt by recording his confessional statement. The site plan was also prepared at his pointation. On external examination of the dead body, the doctor found that the deceased has been murdered by blunt means like a stick due to injuries to the vital organ, the brain.
3. ' The accused in his confessional statement has admitted his guilt to the effect that on the day of occurrence he was going to his village from Mingora. At the place known as Karora he boarded in a pick-up Datsun in which deceased Umar Gul was also sitting. They both deboarded from the vehicle at Jabba and proceeded on foot to their village. After going for about 10/15 minutes, he demanded his money (loan) from Umar Gul but he replied improperly on which an altercation took place between them and due to the reason of his youngerness than Umar Gul in age, he snatched the stick from him and gave 2/3 blows of the said stick to Umar Gul with which he fell to the ground.
4. ' Keeping in view the voluntary confession of the accused, the affirmation of the same at the trial, the recovery of the crime stick from the house of the accused and the medical opinion, the learned trial Judge held the accused-appellant guilty of the charge of Qatl-e-Shibh-i-Amd and sentenced him to the punishment of Diyat to be paid to the legal heirs of the deceased.
5. Today, Mr. M. Waris Khan, Advocate, appeared on behalf of the accused-appellant and argued the appeal. The learned State Counsel was also heard. The accused-petitioner is directly charged for the commission of the offence. The crime weapon i,e, blood-stained stick has already been recovered from his house. The medical report affirms the factum of death of the deceased through blunt means like a stick and the accused-appellant has also admitted his guilt before a Magistrate as well as before the trial Court. In these circumstances, the learned trial Judge has rightly held the accused-appellant guilty of the charge and sentenced him to the punishment of Diyat under section 331, P.P.C. After considering the point of sudden fight between the accused and the deceased as a mitigating circumstance in his favour. I, therefore, find no illegality or irregularity to have been committed by the learned trial Court passing the impugned sentence of Diyat against the appellant. The appeal in hand is, therefore, liable to be dismissed and I order accordingly. It may, however, be mentioned that under section 331, P.P.C., the convict is entitled to be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court. The convict-appellant, therefore, should be released on bail on furnishing a security equivalent to the amount of Diyat amounting to Rs,2,40,000 with two sureties each in the like amount to the satisfaction of the trial Court with directions to the appellant that he should pay the Diyat amount in three yearly instalments (each instalment of Rs,80,000 per year) starting from today.
6. ' Before parting with this judgment, it would not be out of place to mention here an important contention of the learned counsel for the appellant with regard to the difficulty arising in proper interpretation to the provisions of section 331(2), P.P.C. According to the learned counsel for the appellant an offender in case of Qatl-e-Shibh-i-Amd is liable to be punished with Diyat in addition to imprisonment as Tazir. The convict will not be required to suffer imprisonment in default of payment of Diyat or any part thereof, but he will be kept in jail to suffer simple imprisonment until the Diyat is paid in full, if he fails to pay Diyat. According to the learned counsel there is nothing in the section that the convict can be imprisoned in case of failure to pay the amount of Diyat. The learned counsel for the appellant then invited my attention to the provisions of section 338-F, P.P.C.
7. Which provides that in the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The learned counsel for the appellant taking advantage from certain books on the subject has argued that the amount of Diyat in case of Qatl-e-Shibh-i- Amd is, liable to be paid by the blood relations of the offender and if they fail to pay then the legal heirs of the deceased are entitled to such payment from "Bait-ul-Mal".
8. In my view the argument of the learned counsel for the appellant is having substance in it so far as the indefinite term of imprisonment to be served in jail by an offender in case of his failure to pay the amount of Diyat is concerned for the reason that neither the provisions of section 331, P.P.C.
9. Itself provide any definite period for the purpose nor the Court has the powers to fix period of imprisonment in default thereof. I, therefore, recommend that the law-making authority should consider this aspect of the matter so as to remove the difficulty in interpreting the provisions of section 331, P.P.C.