' QAZI MUHAMMAD FAROOQ, J.--- The appellant Sambali Khan, aged about 25 years, was tried by the learned Sessions Judge/Zilla Qazi Swat for committing Qatl-e-Amd of one Abdul Rashid. At the conclusion of the trial he was found guilty of the offence charged with and vide judgment, dated 24-4-1995 was convicted and sentenced to death as Qisas. He has questioned his conviction and sentence through the appeal in hand and the usual reference for confirmation of the sentence of death is also before us. We propose to dispose of both the matters by this common judgment.
2. The record discloses that on 12-1-1995 at about 11-15 a.m. The deceased was gunned down by the appellant on the roadside near Hayat Market, ideated at a distance of about 150 paces from Police Station Matta, and while fleeing from the spot he was apprehended along with a Kalashnikov having fifteen rounds in the charger and one in the chamber by Raza Khan, F.C. No,1420 who was posted on the main gate of Police Station Matta and had become vigilant on hearing the reports of a fire-arm. The F.I.R. Was lodged at 11-20 a.m. At Police Station Matta by the said Raza Khan, F.C.
Wherein it was alleged that he had not only apprehended the appellant along with the crime weapon but had also seen Abdul Rashid. Ex-member, Union Council resident of Sarbanda who was known to him, lying murdered on the roadside and that the occurrence was witnessed by Inayatullah F.C. No,37 and Janat Gul F.C. No,1086 who were patrolling the area at the crucial time.
3. On the very day of occurrence the appellant had confessed his guilt before Ilaqa Qazi/M.I.C., Matta. The main thrust of his judicial confession was that he had avenged the murder of his father because about 12/13 years ago the deceased had murdered his father and was duly charged for the offence but was acquitted.
4. The dead body of the deceased was not subjected to autopsy. However, it was examined by Dr. Haq Nawaz (P.W.1) at 11-30 a.m. Who found the following:--
(1) Two fire-arm inlet wounds on the back of lumber region about 2" apart 4" lateral to the spinal column. Size of each about 1/6" in diameter.
(2) One fire-arm inlet wound on the left side back lumber region 2" lateral to the spinal column. Size 1/6" in diameter.
(3) Two fire-arm inlet wounds on right buttock about 2" apart. Size of each about 1/6" in diameter.
(4) Two fire-arm outlet wounds on the left buttock about 2" apart. Size of each about 1/6" in diameter.
(5) One fire-arm outlet wound on the right side upper region of the chest near the clavicle size 1" in diameter.
(6) One fire-arm outlet wound on the right side chest below the nipple. Size 1" in diameter.
(7) One fire-arm outlet wound on the right side abdomen below the costal margin about 1/2" apart, size of each about 1" in diameter.
(8) One fire-arm outlet wound in the epigastrium region abdomen. Size about 1" in diameter.
(9) Two fire-arm outlet wounds on the left side about in the umbilical region 2" apart. Size of each above 1" in diameter. Intestines coming out from the wounds. In his opinion death had occurred as a result of several internal hemorrhage entailed by fire-arm injuries to the liver and the lungs.
Probable duration of the injuries was about 10 minutes.
5. In order to prove its case the prosecution examined as many as twelve witnesses at the trial including Dr. Haq Nawaz (P.W.1), who had examined the dead body of the deceased, Raza Khan F.C.
No,1420 (P.W.2), who had apprehended the appellant and lodged the F.I.R. Adalat Khan, Illaqa Qazi/M.I.C. Matta (P.W.11), who had recorded the judicial confession of the appellant and Khaista Rehman (P.W.12), who had investigated the case. The ocular evidence was furnished by Janat GuI F.C. No,1086 (P.W.3), Inayatullah FC No,37 (P.W.4) and Alzat (CP.W.5) and evidence of formal nature was given by the remaining witnesses.
6. When examined under section 342, Cr.P.C. The appellant denied the accusation leveled against him and professed innocence. He admitted the motive to some extent but denied his arrest by Raza Khan, F.C. And also retracted his judicial confession. He also recorded his statement, without taking oath, in disproof of the allegations made against him.
7. The learned Trial Court convicted and sentenced the appellant' by placing implicit reliance on the ocular evidence furnished by Janat Gul and Inayatullah, retracted judicial confession of the appellant and his arrest along with the weapon of crime by Raza Khan F.C. Soon after the occurrence.
8. Quite obviously, the learned counsel for the appellant confined his arguments to the sentence awarded to the appellant and did not assail either his conviction or the ocular and the circumstantial evidence on which it was based. The prosecution case against the appellant not only stands proved beyond any reasonable doubt but is also too strong to be demolished. The ocular evidence has been furnished by two natural and independent eye-witnesses whose credentials are above-board. The retracted judicial confession of the appellant not only seems voluntary but is also amply corroborated by the medical evidence and the arrest of the appellant along with the weapon of crime from the point close to the scene of occurrence by an independent witness. The ocular evidence is also fully corroborated by the promptly lodged F.I.R. And the medical evidence.
9. Assailing the sentence the learned counsel for the appellant contended at the outset that the sentence of death as Qisas was illegal for want of Tazkiyah-alShuhood. Reliance was placed on Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department, Peshawar v. Muhammad Ayaz Khan, Additional Sessions Judge, Swabi and 3 others PLD 1996 Pesh.
76. It was further argued that it was a fit case for taking a lenient view in the matter of sentence because the deceased had committed the murder of appellant's father in the year 1977 and was charged in the murder case registered at Police Station Matta, vide F.I.R. No,145, dated 3-11-1977, but was acquitted and the appellant being smarting under grievance had committed his murder to avenge murder of his father. Reliance was placed on Ajun Shah v. The State PLD 1967 SC 185, Zulfiqar and 5 others v. The State 1974 PCr.LJ 100 and Yaqub and 2 others v. The State 1980 PCr.LJ 556.
10. The contention with regard to the sentence of death as Qisas awarded to the appellant has substance because it is inconceivable that such a sentence can be awarded without undertaking the exercise of Tazkiyah-al-Shuhood. According to the common Islamic Law, under which the criminal case arising from offences affecting the human body are being tried and decided by the Court functioning the Malakand Division owing the non-extension in the Qisas and Diyat Ordinance/Act of 1997 to that area, Nisab-e-Shahadat for Qisas is the same as that of Hadd. This would mean that the liability of Qisas is established by two competent (A'dil) witnesses as such the sentence of death as Qisas cannot be imposed unless the Court is satisfied having regard to the requirements of Tazkiyah-al-Shuhood that the charge of intention murder is supported by the credible testimony of two male adult (A'dil) Muslim witnesses who are not only truthful witnesses but also abstain from major sins and not inclined to indulge in minor sins. The probity of witnesses is indispensable. It is true that all Muslims are prima facie just with respect to evidence excepting those who have been punished for Qazf/perjury. However, if the probity of a Muslim witness is questioned it is incumbent upon the Court to initiate an enquiry into his character. In the present case the probity of all the eye-witnesses was challenged and it is not established on record by means of Tazkiyah-al-Shuhood that they are in fact A'dil witnesses. It is also firmly settled that when the guilt of intentional murder is established but the evidence of the requisite standard for visiting the murderer with the sentence of death as Qisas is not available then the Court has to award the sentence of death as Tazir which is an Islamic punishment and has been recognized by the Qisas and Diyat Ordinances/Act II of 1997. No doubt the Qisas and Diyat Ordinances/Act II of 1997 have not been extended to the Malakand Division but in view of the observations with regard to state of vacuum made in Federation of Pakistan and another v. N.-W.F.1", Government and others PLD 190 SC 1172 the Courts functioning in the Malakand Division must seek guidance from the Criminal Law (Amendment) Act, 1997 (Act II of 1997) in force in rest of 'the country. Much more can be said about the fixed element of Qisas and the variable element of Tazir but we do not deem it necessary as we are not inclined to confirm the sentence of death as Qisas awarded to the appellant.
11. Coming to the second contention raised by the learned counsel for the appellant we find that a case for taking a lenient view in the matter of sentence is indeed made out. Apart from the positive assertion made by the appellant it is evident from the testimony of Afzal Khan (P.W.5), nephew of the deceased, and copy of F.I.R. No,145, dated 3-11-1977, Police Station Matta marked Exh.D.1 that the appellant's father Muhammad Umar was murdered on 3-11-1977 and the deceased Abdul Rashid was squarely charged for enacting the tragedy but was acquitted. During those days the appellant, was about 7/8 years- of age. In this part of the country it is a matter of tradition to avenge the murder of the father and in this context the following excerpt from the instructive authority of the Supreme Court of Pakistan reported as Ajun Shah v. The State PLD 1964 SC 633 may be reproduced advantageously:-- "At the time of the instant murder, i,e, in 1965, the appellant's age was 28 years. It is, therefore, clear that when his father and brother were murdered he was only 8 years old. He belongs to the Frontier Province where it is a matter of tradition and even family duty to avenge the murder of a father.
Such murders are committed in that area out of a sense of honor and self-respect. Since he was a boy his mind had become assessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a Tonga he lost his balance of mind. The time, place and nature of the attack appear to confirm this.
' A man is after all a creature of his environment. His action, therefore, must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not imposing the extreme penalty. We would, however, like to make it clear that we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What we are really pointing out is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty."
In this backdrop the ends of justice will be adequately met if the appellant is sentenced to imprisonment for life and a fine of Rs,30,000 payable on recovery as compensation to the legal heirs of the deceased within the contemplation of section 544-A, Cr.P.C. Or six months' S.I. In default.
12. For the reasons aforesaid, this criminal appeal is partly accepted, the conviction of the appellant Sambali Khan for Qatal-e-Amd of Abdur Rashid deceased is maintained but the sentence of death as Qisas awarded to him is altered to imprisonment for life, with benefit of section 382-B, Cr.P.C.
And a fine of Rs,30,000 payable on recovery to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or six months' S.I. In default. The sentence of death as Qisas is not confirmed and the murder reference is answered in the negative.