MUHAMMAD NAWAZ ABBASI, J.- The appellant, namely, Ghulam Muhammad alias Modi son of Noor Muhammad was tried for the charge under section 302 P.P.C, upon the allegation of committing the murder of Mst. Razia, his wife, by the learned Additional Sessions Judge, Bahawalpur, who vide judgment dated 13.5.1996 convicting the appellant sentenced him to death.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No. 48 of 1996, whereas learned Additional Sessions Judge has sent Murder Reference No. 8 of 1996 under section 374 Cr.P.C, for confirmation of death sentence of the appellant. This judgment proposes to dispose of both the matters together.
3. Briefly, the prosecution case is that Ghulam Muhammad, husband of Mst. Razia deceased, was an addict to intoxicant and oftenly quarreled with his deceased wife. On 6.4.1995, the appellant in presence of complainant, namely, Rasool Bakhsh, maternal uncle of the deceased and Ghulam Nazak, who were on visit to the house of Mst. Razia, gave beating to her. Upon the intervention of the complainant and Ghulam Nazak, the appellant went out of the house extending threats to teach a lesson to the deceased, who did not fulfil his demand of money for intoxicant. On 7.4.1995 at 10/11 a.m., Rasool Bakhsh and Ghulam Nasak found the appellant putting the deceased on fire with oil. The witnesses made efforts. To save Mst. Razia and removed her to the Hospital in injured condition for medical aid, but subsequently, she succumbed to the injuries.
4. The deceased was medically examined in injured condition by Dr. Muhammad Zahid, M.O.
(P.W.8), on the same day at about 3.00 p.m. Who found the following injuries on her person: -
(1) .Hair of head were burnt in completely but scalp was spared, neck was burnt completely all around and from ear to the other ear, ears both also burnt and right side of face was also burnt.
(2) Complete chest from front and both lateral sides was burnt also. Left side of back of chest was burnt. Above-mentioned features were present.
(3) Complete abdomen from anterior and both lateral sides was burnt extending to downward. All above-mentioned features were present.
(4) Both lower and upper arms were completely burnt but both hands were spared no burnt.
Mentioned signs Were present severely charred.
(5) Both axillary areas were burnt charred with above features.
(6) Both buttocks were burnt and both thighs were also burnt completely upto level of knees. All above features were present.
(7) Whole external genitalia with perineal area was burnt charred and vesicles were present signing was present.
(8) Multiple bruises reddish blue coloured on whole area of the back were present. Signs of fractures not seen also bum on back of base of neck was present and left side of back was present and. Also bruises were extending to this burnt area.----- He declared the injuries Nos. 1 to 7 as burn injuries and the injury No. 8 to have been caused with blunt weapon. On expiry of Mst. Razia, her post-mortem examination was conducted by the same doctor on 8.4,1995.
5. Dr. Muhammad Zahid (P.W.8) stated that through an application (Exh.PI), the police sought his opinion regarding the condition of the patient on 7.4.1995 and according to the opinion (Exh. P/1), expressed by him, the deceased at the time of arrival at hospital was conscious. She made statement before him in the following manner, which was recorded as such:- "That my husband Modi and his brother Makhan are addict. Last night injured me. My father-in-law was standing there. My son was also there. They were also beating my son. They were asking for money from me."
Answer to another question How you burnt' put by the doctor to her is as under:- "Today afternoon Modi and Makhan asked for money from me for drug abuse. I do not give them money. They went on beating me again. My husband and his brother (Der) put kerosine oil on me. 1 was crying. They put me on fire with match stick. My father-in-law was present. He did n6t help me.
My uncles and relatives brought me here."
6. Haji Rahim Bakhsh (P.W.1), Rasool Bakhsh (P.W-2) and Ghulam Razak (P.W.4), the eye-witnesses of the occurrence have not supported the prosecution case at the trial stating that they knew nothing about the incident. These witnesses were declared hostile and were accordingly cross- examined.
7. The appellant in his-statement under section 342 Cr.P.C, denying the dying declaration made by Mst. Razia deceased before the doctor, stated that it was tutored and based on untrue facts and that in fact it was a case of suicidal and he was falsely involved in the case. According to the dying declaration, the deceased had also a son from the appellant.
8. The trial Court placing reliance on the dying declaration made by the deceased before the doctor (P.W.10) in the hospital, on the day of occurrence, supported by the medical evidence convicted the appellant for the charge under section 302(b) PPC and sentenced him to death.
9. Malik Muhammad Farrukh Mahmood, learned counsel for the appellant without doubting the dying declaration and challenging the conviction and sentence on merits argued that the dying declaration of the deceased being the sole evidence on the basis of which the appellant having been found guilty was convicted and that as per dying declaration the appellant and the deceased had a son, who being Wali of the victim was the direct descendant of the appellant. He contended that the offence being not definable as Qatl-e-Am, is not liable to Qisas, as provided under section 306 PPC and is punishable under section 308 P.P.C. He concluded that the case being not punishable as Qatl-e-Am, the conviction under section 302 P.P.G, either as Qisas or Tazir, as the case may be, cannot be awarded.
10. Learned State counsel has argued that except dying declaration there, is no evidence in support of the contention of the learned counsel for the appellant that the deceased and the appellant had a son to bring the case within the purview of section 308 P.P.C.
11. We have heard the learned counsel for both sides and also perused the record with their help.
The perusal of section 306 P.P.C, clearly shows that Qatl-e- Am in such circumstances is not liable to Qisas. The appellant being husband of Mst. Razia committed her Qatal, who left a son behind her and the offence by virtue of section 306. P.P.C, is punishable under section 308 P.P.C., which provides punishment of Diyat alongwith sentence of imprisonment for a maximum term of 14 years. The case against the appellant falling under section 308 P.P.C., he cannot be saddled with the penalty of death under section 302(b) PPC for Qatl-e- Amd as Qisas or Taazir. The trial Court without visualizing the nature of the offence framed the charge under section 302 P.P.C, instead of section 308 P.P.C. Learned counsel for the appellant without any reservation conceded that the Court while convicting a person under section 308 P.P.C, in addition to Diyat in suitable cases in exercise of its discretion can' also award maximum punishment to the extent of 14 years as Tazir, provided under said section.
12. We find force in the contention of the learned counsel for the appellant that the conviction of the appellant being based on dying declaration was to be given full effect and that the same describing of a son of the deceased as her Wali and direct descendant of the offender, the charge against the appellant obviously should be framed under section 308 P.P.C. We, therefore, treating the same for the purpose of section 302 P.P.C, dispose of this appeal in the following manner:- The conviction and sentence under section 302(b) P.P.C, awarded to the appellant by the trial Court is converted into section 308 P.P.C. The appellant shall pay Diyat in terms of imprisonment for fourteen years as Tazir under section 308(2), PPC. He is, however, allowed benefit of section 382-B Cr.P.C.
13. With the above modification in the conviction and sentence, the appeal stands disposed of and the Murder Reference is answered in the negative.