1. ' S. DEEDAR HUSSAIN SHAH, J.--By this judgment we propose to dispose of Criminal Jail Appeal No, 47 of 1996 as well as reference for confirmation of death sentence' being Confirmation Case No,4 of 1996.
2. ' The prosecution case is that on 9-10-1995 at 10-30 a.m. While complainant Qadan Kalhorc was sitting in his house, he heard cries from the house of appellant Abdullah Kalhoro. Complainant along with his son Allandino and P.W. Bachal went to the house of appellant and found him causing hatchet blows to his wife Mst. Bashiran. When the complainant, and P.Ws. Challenged, the appellant threatened them to remain away from him as he was killing his wife who was 'Kari' with Dhani Bux Kalhoro and that paramour had fled away. The handle of the hatchet carried by the appellant broke in the process of committing murder. The accused left the scene of offence along with crime weapon. Leaving the P.Ws. There, complainant went to Police Station Bakhri and lodged the F.I.R. At 11-30 a.m.
3. ' On the same day at 5-0 p.m. Police arrested the appellant near Pir Ismail Shah who voluntarily produced the blood-stained hatchet before the police. On the next day i,e, 10-10-1995 appellant was produced before resident Magistrate, Kandiaro, where his judicial confession was recorded.
4. After completion of investigation the case was challaned before Resident Magistrate Kandiaro who sent up the case to the Sessions Court Naushahro Feroze from where case was received by learned Additional Sessions Judge, Kandiaro for disposal according to law.
5. ' Charge was framed against the appellant under section 302, P.P.C. To which he pleaded not guilty and claimed to be tried.
6. ' During the trial prosecution examined complainant Qadan and P.Ws. Muhammad Bachal, Dr. Muhammad Malook, Haji Khair Muhammad Khokhar the Resident Magistrate, P.W. Allandino, Mushtaq Ali the tapedar, Mashir Muhammad Essa and S.I.P. Abdul Rahim Mirani. During the trial complainant produced the F.I.R., P.W. Muhammad Bachal produced his 164, Cr.P.C. Statement, medical officer produced post-mortem report of deceased, Resident Magistrate produced the judicial confession of appellant, P.W. Allandino also produced his 164, Cr.P.C. Statement, tapedar produced the sketch while Mashir produced the Mashirnama of place of Wardat, inquest report, Mashirnama of arrest of appellant and Mashirnama of recovery of blood-stained hatchet and S.I.P. ,produced the report of the Chemical Examiner. P.Ws. Mst. Amanat and Haji Dhani Bux were given up by the Prosecutor. Thereafter, side of the prosecution was closed.
7. ' Statement of the appellant was recorded wherein he admitted that he has committed murder of his wife Mst. Bashiran under sudden and grave provocation and had produced blood-stained hatchet before police. He also admitted to have made judicial confession voluntarily before the Resident Magistrate, Kandiaro.
8. ' After conclusion of the trial learned trial Court convicted the appellant for an offence punishable under section 302, P.P.C. As amended and sentenced him to death vide judgment dated 13th day of May, 1996. Being aggrieved and dissatisfied the appellant preferred this appeal which was admitted for regular hearing on 22-5-1996. Learned trial Court has also made .a reference for confirmation of death sentence.
9. ' We have heard Mr. Habibullah Shaikh, learned counsel for pauper accused/appellant who after making submissions at length finally contends that since deceased was the wife of the appellant and out of the wedlock two children are born, the appellant cannot be convicted under section 302, P.P.C. But will be liable for punishment under section 308, P.P.C. In support of his contention learned counsel refers to PLD 1994 SC 885.
10. ' Mr. Sher Muhammad Shar, learned A.A.-G. Does not controvert the legal point raised by the learned counsel and concedes that the offence committed by the appellant is punishable under section 308, P.P.C. He has raised no objection if the sentence awarded by the learned trial Court is modified accordingly.
11. ' In order to appreciate and understand the legal point raised on behalf of the appellant in its correct perspective, it will be advantageous to reproduce hereunder section 306, P.P.C. Which reads as follows: "306. Qatl-i-Amd not liable to Qisas.---Qatl-i-Amd shall not be liable to Qisas in the following cases, namely,--- (a)
12. (b)
(c) When any Wali of the victim is a direct descendant, how low so ever, of the offender."
13. ' In view of the above quoted provision of law, in this case Qisas cannot be enforced against the appellant. The appellant is husband of the deceased lady from whom he has two children who are alive.
14. ' The observation of the Honourable Supreme Court in the above referred case PLD 1994 SC 885 is as follows: "It was apparent on the face of record that Wali (daughter) of the deceased was direct descendant of the offender. Language of sections 306 and 308, P.P.C. Was plain enough to show that Qatl-i-Amd committed by the accused was not liable to Qisas and Qatl-i-Amd not liable to Qisas was specifically punishable under section 308, P.P.C. Only. So, the accused could be convicted under section 308, P.P.C. And not under section 302, P.P.C. To death as Qisas or Ta'zir."
15. We have perused the impugned judgment and find that conviction of the appellant under section 302, P.P.C. And his sentence under the said provision of law is unjustified.
16. ' For the facts, circumstances and the case-law discussed and referred to herein above and no objection raised by learned A.A.G. We hold that the offence committed by the appellant will fall under section 308, P . P . C .
17. ' We accordingly modify sentence of the appellant from sections 302 to 308, P.P.C. And alter the sentence of death to imprisonment for fourteen years. The reference for confirmation of death sentence is hereby declined . The appellant is allowed benefit of section 382-B, Cr.P.C.
18. ' With the above modification, the appeal as well as the confirmation case stand disposed of.
19. Death sentence not confirmed.