' ZAFAR PASHA CHAUDHRY, J.--Murder Reference No,91 of 1997 has been taken up along with Criminal Appeal No,67 of 1997 filed by Munawar Ahmed appellant impugning the judgment. Dated 13-3-1997 passed by Sh. Liaqat Ali, learned Additional Sessions Judge. Khanewal whereby the appellant was sentenced to death under section 302, P.P.C. In case F.I.R. No,88, dated 2-4-1995 registered with Police Station Sarray Sadhu, District Khanewal.
2. The prosecution case in brief as has been narrated by Zahid Ahmed P.W.6 is that his sister Asia Bibi was married to appellant about six years back. Out of the wedlock one son and two daughters were born. The appellant transferred one acre of his agricultural land in favour of his wife Mst. Asia Bibi but afterwards he started demanding it back. Mst. Asia Bibi after getting annoyed came to the house of the complainant on 23-3-1995. On 2-4-1995 at about 8-45 p.m. The complainant alongwith Nazakat Ali and Muhammad Asif P.W.7 was sitting in his house and the electric bulb was on, suddenly the appellant Munawar Ahmed armed with a .12 bore double-barrel gun entered the courtyard of the house and exhorted that he will teach her a lesson for not returning the land.
Simultaneously he fired a shot hitting the deceased in front of her right shoulder. The complainant and witnesses tried to apprehend the appellant but he fled away while firing from his gun. Mst. Asia sister of the complainant succumbed to the injuries at the spot. F.I.R. Exh.PF was recorded by Muhammad Yousaf S.1./S.H.O. P.W. I I on the statement of said Zahid Ahmed P.W.6. After recording the F.I.R., the S.1. Visited the spot, took into possession one crime empty P.4 of .12 bore gun vide recovery memo. Exh.PI. The blood-stained earth was also secured vide memo.11.PII. One slipper (Chapple) was also taken into possession from the spot belonging to the appellant left by him during the occurrence through recovery memo. Exh.PJ He performed other formalities at the spot and despatched the dead body for post-mortem examination. He also got prepared the site plan of the place of occurrence. After autopsy, among other articles a phial containing pellets was taken into possession vide memo. Exh.PK. He arrested the appellant on 11-4-1995 and on 16-4-1995 while in police custody the appellant led to the recovery of gun P.3 from his house which was taken into possession vide memo. Exh.PG. He recorded the statement of the witnesses under section 161, Cr.P.C. And on completion of the investigation submitted challan against the appellant who was tried by the learned Additional Sessions Judge, Khanewal.
3. The prosecution in order to prove its case examined 11 witnesses. Dr. Muhammad Akhtar P.W.1 conducted the post-mortem examination of the deceased a Id noted the following injuries on her person:--
(1) Lacerated wound with inverted margins, 4 x 4 c.m. On the front of Rt. Shoulder, some burning and tattooing present.
(2) Lacerated wound 1/2 x 1 c.m. On the lateral side of injury No, 1.
(3) Lacerated wound 1 x 1 c.m. Below injury No,2.
(4) Lacerated wound 2 x 1 c.m. Below injury No,2.
(5) Lacerated wound 3 x 1-1/2 c.m. Below injury No,1 .
(6) Lacerated wound 2 x 1 c.m. On the medial side of injury No, 1.
(7) Lacerated wound 3 x 2-1/2 c.m. On the back of Rt. Side of chest 12 c.m. Below the top of Rt.
Shoulder.
(8) Lacerated wound 1/2 x 1/2 c.m. On the in ferolateral side of injury No,7.
(9) Lacerated wound 1/2 x 1/2 c.m. Inferomedial to injury No,8.
(10) Lacerated wound 1/2 x 1/2 c.m. Just inferomedial to injury No,9.
(11) Lacerated wound 1/2 x 1/2 c.m. On the medial side of injury No,7.
' All the injuries were found to be ante-mortem, caused by fire-arm and were sufficient to cause death in the ordinary course of nature.
4. P.W.2 Falak Sher Patwari was examined to prove the site plan. P.W.3 Muhammad Arif identified the dead body at the time of post-mortem examination. P.W.4 Atta Muhammad, A.S.I., P.W.5 Sajjad Hussain Constable are formal witnesses who performed various functions assigned to them during the investigation. P.W.6 Zahid Ahmed complainant as well as Muhammad Asif P.W.7 furnished the eye-witness account of the occurrence. Both of the witnesses fully supported the prosecution version and corroborated each other on all the material points. They were subjected to cross- examination but nothing could be brought on record to damage or cast doubt to the prosecution case. P.W.8 Ishfaq Hussain attested the recovery of gun P.3 on 16-4-1995 at the instance of the appellant which was secured into possession vide memo. Exh.PG. P.W.9 Maqsood Ahmed Constable is a formal witness. P.W.10 Ashiq Muhammad was associated with the investigation who attested the recovery memos. Relating to the various articles taken into possession from the spot and also last worn clothes of the deceased. He also attested the recovery of sealed phial containing pellets. P.W.11 Muhammad Yousaf Inspector/S . H.O conducted the investigation and detail of the investigation has already been noted above.
5. The learned Prosecutor tendered in evidence the Report of Forensic Science Laboratory Exh.PM, meaning thereby that the empty secured from the place of occurrence had matched with the gun recovered at the instance of the appellant. He also tendered the Report of Serologist and Chemical Examiner as Exh.PO and Exh.PN and with that closed the case for the prosecution.
6. When the case was put to the appellant and he was examined under section 342, Cr.P.C., he denied the allegations against him. He also denied the motive as well as recoveries as alleged by the prosecution. He put forward the plea that actually Zahid brother of the deceased and Muhammad Asif P.W.7 had committed the murder of Mst. Asia and got him falsely implicated in the case in connivance with the police. He did not produce any defence nor he opted to appear as his own witness as envisaged under section 340(2), Cr.P.C.
7. The learned counsel for the appellant half-heartedly tried to argue that the prosecution has not been able to prove the case against the appellant but he abandoned the plea of innocence and argued that illegality has been committed by the learned trial Court. On the admitted facts the petitioner's case was covered by section 306, P.P.C. And he could be awarded the sentence under section 308, P.P:C. Because Mst. Asia deceased had one son and two daughters as her heirs who are heirs and Wali of the appellant Munawar Ahmed as well, therefore, he could not have been convicted under section 302. P.P.C. In support of his contention the learned counsel placed reliance on the law enunciated by the Hon'ble Supreme Court in case titled "Khalil ur Rchman v. The State"
(1994 SCMR 885) whereby in similar circumstances the sentence of death under section 302, P.P.C.
Was held to be illegal and observed that the case was covered under section 306 read with section 308, P.P.C. The learned counsel for the State although argued that the prosecution has successfully proved the guilt of the appellant but conceded that the conviction could not be recorded under section 302, P.P.C. In view of the provisidns of section 306, P.P.C. Read with section 308, P. P.0
8. We have gone through the evidence with the help of the learned counsel and have also examined the relevant record. The occurrence took place in the house of the complainant and the deceased at 8-45 p.m. During the month of April, 1995. The presence of the complainant as well as other witnesses in the house is absolutely natural and similarily the presence of Muhammad Asif P.W.7 cannot be held as improper as he belongs to the same village. The people living in the vicinity do visit each other and the visit at 8-45 in the evening in the month of April cannot be considered as old or improper. Both of the witnesses do not have enmity or motive to falsely implicate the appellant. The occurrence has been witnessed by them which was subsequently fully supported by the medical evidence given by. P.W.1. The statements of the witnesses are further corroborated by the fact that the gun recovered at the instance of the appellant matched with the empty recovered from the place of occurrence. Matching of a crime empty with the weapon of offence is always considered a strong and substantive corroboration with the prosecution case. The prosecution case is further corroborated by the motive. The appellant had a grievance against his wife because he had transferred one acre of land in her favour and then demanded it back. On refusal he got seriously annoyed and committed the murder of Mst. Asia in the house of her brother. All these peices of evidence taken together prove beyond doubt that the appellant had fired at the deceased to which she succumbed at the place of occurrence. The prosecution, therefore, has fully discharged its onus.
9. The next question left to be determined is that what offence is constituted from the admitted facts and circumstances of the case. The appellant has three children from the deceased. After the death of Mst. Asia she is survived by her three children 0 who are all minors stated to be in- between two to five years of age. They are also heirs and Wali of the appellant. Section 306, P.P.C.
Lays down that Qatl-e-Amd shall not be liable to Qisas in the following cases:-- 'Under clauses (c), when any Wali of the victim is a direct descendant, howlowsoever, of the offender; ' Admittedly, the children of the deceased i,e, her Wali are direct descendants of the father being their issue. Section 308, P.P.C. Prescribes the punishment in Qatl-e-Amd not liable to Qisas etc. It mandates that where the offender is guilty of Qatl-e-Amd, not liable to Qisas under section 308, P.P.C., he shall be liable to Diyat. Under subsection (2) of this section i,e, 308, P.P.C., it has been laid down as follows:-- ' 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.
' There remains no ambiguity regarding imposition of sentence after going through this subsection.
The conviction and sentence under section 302, P.P.C., therefore, is not maintainable. The same being illegal and in violation of section 306, P.P.C. Read with section 308, P.P.C., the same is therefore, set aside. The appellant is convicted under section 308, P.P.C. He is ordered to pay Diyat to the three children of Mst. Asia deceased, two daughters and one son born out of the wedlock of the appellant and the deceased. The Diyat has been notified to be Rs,2,66,000. The appellant shall deposit that amount in favour of the minors in accordance with their Islamic shares i,e, two shares to the boy and one share each to girls. The amount shall be encashed by the minor children on attaining majority. In the alternative the appellant may transfer the property in favour of the minors in proportion to their Islamic shares of the price equal to amount of Diyat. The learned District Magistrate will execute the order on move by the appellant or anyone else authorised by him in this behalf. In case of non-payment of Diyat in the manner stated above the appellant shall remain in jail.
10. Since the murder committed by the appellant is extremely cruel as he has killed his own wife and deprived the children of their mother merely on account of her refusal to transfer back one acre of land to the appellant, we are of the view, that the appellant deserves no leniency, we, therefore, sentence him to undergo R.I. For fourteen years. His appeal as such is partly accepted.
' The murder reference is answered in the negative. Sentence of death is not confirmed.