' Briefly stated the facts are that Muhammad Bashir complainant (P.W.9) retired from Pakistan Air Force about 5 months prior to the occurrence, dated 14-8-1995. He had started the construction of his house, where his brother Muhammad Nazeer used to sleep and to look after the material of the under construction house. On the night previous to 14-8-1995, his brother Muhammad Nazeer slept there as usual. On 14-8-1995 at 5-30 a.m., the complainant came to wake up his brother and to provide him breakfast. When he reached near his house, Zawar Hussain and Ghulam Rabbani met him and he stopped there for having a chit chat with them. In the meanwhile, gate of his said house opened and Muhammad Amir son of Fateh Muhammad, who is his real maternal-uncle, came out with a blood-stained razor. Seeing the complainant, Zawar Hussain Shah as well as Ghulam Rabbani coming Muhammad Amir started running towards his house. The complainant alongwith his companions rushed towards his house and found the deceased Muhammad Nazir with his throat cut lying on bed soaked in blood. He stated that motive behind this occurrence is that about 6 months ago Muhammad Nazir deceased was married with Mst. Shahnaz Akhtar daughter of Muhammad Amir accused. However, Rukhsati had not taken place. Muhammad. Nazir deceased requested Muhammad Amir accused to arrange Rukhsati, upon which Muhammad Amir accused asked Muhammad Nazir deceased to divorce his daughter, failing which he will have to repent throughout his life.
2. On 14-8-1995 at 6-30 a.m. Muhammad Sheraz, S.-I. (P.W.11) alongwith police officials was present at Khaur Chowk when he received information of this occurrence and proceeded to the spot. He recorded the complaint Exh.P.A. On the statement of the complainant and sent the same to the police station through Abdul Ghafoor constable for formal registration of F.I.R. He prepared statement of injury Exh.P.H., inquest report Exh.P.I. And then despatched the dead body through Tariq Mahmood constable for post-mortem examination. He then handed over the investigation to Syed Ghulam Farid Inspector/S.H.O. (P.W.12) who secured cot P.4, one Tulai P.5, one pillow P.6, Chaddar P.7 (all blood-stained) one wooden crutch P.8 and one pair of Chappal P.9 vide memo.
Exh.P.F. On the same day Tariq Mehmood, Constable produced before him last-worn clothes of the deceased P.1 and P.2 which he secured vide memo. Exh.P.B. He also prepared rough site plan of the place of occurrence Exh.P.J. On 16-8-1995, he arrested the accused who on 17-8-1995 led to the recovery of razor P.3 which he secured vide memo. Exh.P.D. And prepared its site plan Exh.P.K. He got site plan Exhs.P.G. And P.G./1 prepared through Ahmad Khan Wazir, Draftsman. He handed over the parcel to Moharrir for keeping the same in safe custody and after completing the investigation, submitted the challan.
3. A charge under sections 302 and 449, P.P.C. Was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, prosecution examined P.W.1 Gulistan Khan, A.S.-I.
Who on 14-8-1995 recorded formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. Musarrat Hussain Shah, H.C. (P.W.2) was given parcels containing blood-stained earth and bloodstained razor on 14-8-1995 and 17-8-1995 respectively. He delivered the said parcels to Muhammad Dawood constable on 22-8-1995 for its delivery in the office of Chemical Examiner. Tariq Mehmood constable (P.W.3) escorted the dead body of the deceased for post-mortem examination and produced last-worn clothes P.1-2 of the deceased which were secured by the Investigating Officer vide memo. Exh.P.B. Dr. Muhammad Pervaiz (P.W.4) conducted the post-mortem examination of the deceased. He found three injuries on his person. He issued post-mortem examination report Exh.P.C. And sketch of injuries Exh.P.C./1. Habib Khan (P.W.5) is a witness of recovery of razor P.3 which was secured vide memo. Exh.P.D. Noor Khan (P.W.6) is witness of recovery of memos. Exhs.P.E.
And P.F. Ahmad Khan Wazir (P.W.7) is draftsman who visited the place of occurrence on 29-8-1995, prepared site plans Exhs.P.G. And P.G./1 and handed over the same to the Investigating Officer.
Muhammad Dawood (P.W.8) was given two parcels containing blood-stained earth and blood- stained razor by Musarrat Hussain Shah,. Headconstable on 22-8-1995 for its delivery in the office of Chemical Examiner. Muhammad Bashir (P.W.9) is complainant and corroborated his version given in complaint Exh.P.A. He further deposed that he had identified the dead body of the deceased at the time of postmortem examination. Zawar Hussain (P.W.10) is an eye-witness of the occurrence and has corroborated the prosecution version of P.W.9. Muhammad Sheraz, S.-I. (P.W.11) and Syed Ghulam Farid Shah, Inspector/S.H.O. (P.W.12) are Investigating Officers whose evidence has already been discussed above. The learned D.D.A. Produced reports of Chemical Examiner, Exhs.P.L. And P.M.
Alongwith report of Serologist Exhs.P.L./1 and P.M./1 and closed the prosecution evidence vide his statement, dated 7-11-1997.
5. When examined under section 342, Cr.P.C. The accused stated that Nikah of his daughter was performed with the deceased 8/9 months prior to the present occurrence with the consent of both the parties. He further, stated that the complainant party never approached him for Rukhsati of his daughter, as such question of refusal does not arise. In reply to question No,8 as to why this case has been registered against him and why P.Ws. Have deposed against him, he stated as follows:-- "Mst. Imtiaz my other daughter was engaged by me to Shafiq the second brother of the complainant. The complainant was after me to break the engagement of my daughter with his brother and she be given in marriage to him. My wife was also in league with the complainant, but I did not agree to this proposal. This refusal of mine aggrieved the complainant who in turn involved me in this blind case with the help of the police. I was the only hurdle for the complainant and now he is at liberty to achieve his goal with the help of my family. The P.Ws. Have deposed against me at the instance of the complainant."
' He stated that he would get his statement recorded under section 340(2), Cr.P.C. But later on did not record. However, he examined Dr. Zulfiqar Ahmad, Medical Officer as D.W.1 and thereafter, closed his defence evidence.
6. After going through the evidence produced by the prosecution as well as the defence, the trial Court convicted the accused/appellant under section 308, P.P.C. And sentenced him to pay Diyat amounting to Rs,2,65,000 vide judgment, dated 18-12-1997. The appellant has felt aggrieved of the said judgment and filed the instant appeal through Superintendent District Jail, Attock.
7. Alongwith this appeal, Criminal Revision No,57 of 1998 has also been filed by the complainant Muhammad Bashir for awarding punishment under section 308(2), P.P.C. As both the criminal appeal as well as the criminal revision arise out of the same judgment, so these are being disposed of by this single judgment.
8. Arguments have been heard and record perused.
9. Appellant is present in person and submits that he has been released as he has paid the Diyat amount imposed upon him.
10. Conversely, learned counsel for the complainant states that the trial Court had framed charge against the appellant under section 302/449, P.P.C. But convicted him under section 308, P.P.C. Only and did not pass any order under section 449, P.P.C. As such impugned judgment is not sustainable, that the trial Court has extended benefit of section 306(c), P.P.C. And convicted him under section 308, P.P.C. Simply on the ground that the deceased was husband of his daughter and as such was a direct decedent of the appellant, that trial Court was not justified in extending him said benefit, that as Rukhsati of the daughter of the deceased had not taken place, so the appellant case did not fall within the ambit of section 306, P.P.C., that under these circumstances he is liable to punishment under section 302(b), P.P.C. And placed reliance upon Abdus Salam v.
The State 2000 SCM R 338 and Abdur Raid v. The State and 2 others 1998 SCM R 1771. He, thus, submitted that revision petition be accepted and the appellant be convicted under section 302(b), P.P.C. And be punished accordingly or in the alternative be awarded under section 308(2), P.P.C.
11. Learned counsel for the complainant has laid much stress on the point that charge having been framed under section 302/449, P.P.C., no sentence has been awarded under section 449, P.P.C., as such this omission on the part of trial Court makes the judgment unsustainable in the eyes of law.
The mere fact that the appellant was charged under section 449, P.P.C. Does not mean that he has to be convicted under that offence. He has not been convicted under section 449, P.P.C. Means that trial Court did not hold him guilty for that commission of said offence. Thus, there is no force in this contention of the learned counsel for the complainant.
12. The other objection of learned counsel for the complainant is that the appellant could not be extended benefit of section 306(c), P.P.C. And as such could not be convicted under section 308, P.P.C. This objection is also devoid of any force. Admittedly, daughter of the appellant was married to the deceased, as such case of the appellant squarely falls within the purview of section 306(c), P.P.C. Thus, he was liable to be convicted under section 308, P.P.C. And has rightly been sentenced to pay Diyat which amount has been paid by him. It may also be mentioned here that learned counsel for the complainant has vehemently argued that even if the appellant is to be convicted under section 308, P.P.C., he was liable to Tazir under section 308(2), P.P.C. Which provides a punishment upto 14 years. There is no doubt that subsection (2) of section 308, P.P.C. Provides punishment upto 14 years but the said punishment is discretionary and no mandatory. In the given circumstances, the trial Court has rightly imposed Diyat and refrained from imposing sentence of Tazir and there is nothing on the record to differ with the discretion of the trial Court. Accordingly, the criminal revisional being without any force is dismissed.
13. Since the appellant has already been released on account of the payment of Diyat, so the instant appeal stands disposed of having become infructuous.