' Through this appeal the appellant has challenged the judgment dated 8-5-1995, passed by learned Additional Sessions Judge, Shandadpur in Sessions Case No,19 of 1994 (St. v. Mahboob Ali) under section 302, P.P.C., whereby the appellant was convicted and sentenced to suffer imprisonment for life and to pay Rs,10,000 as fine and in default of payment of fine the accused was to undergo R.I. For one year more.
2. The brief facts 9f the prosecution case are that on 6-3-1994 at 6-30 a.m. Complainant Allah Rakhio lodged, F.I.R. Alleging that he has three sons and two daughters. His daughter Mst. Haseena who was aged about 18/19 years was married to Mahboob Ali son of his sister. She has one daughter out of the wedlock. Accused Mehboob used to reside with the complainant alongwith his wife Mst. Haseena and their daughter. About 4/5 days prior to the incident accused Mahboob informed the complainant that he wants to shift from the house, and insisted that he will not reside with the complainant. The complainant refused to allow his daughter to go with the accused if he shifted from the house as deceased Mst. Haseena was also not happy to live with the accused in a separate house. On the night of the incident while all the family members were sleeping in the house of the complainant at about 3-00 a.m. Complainant heard cries of his daughter Mst.
Haseena. The complainant and his sons Gul Hassan and Muhammad Hassan woke up saw that accused Mehboob was beating Mst. Haseena and he also gave hatchet blow with sharp side on the head of Mst. Haseena which was fixed on the head of Mst. Haseena.
' Thereafter, the accused ran way from the house of complainant. It was further alleged in the F.I.R.
That after receipt of injury Mst. Haseena went unconscious and she was removed to Nawab Shah Hospital but she subsequently died.
3. After framing of formal charge to which the appellant pleaded not guilty, the trial commenced.
4. On conclusion of the trial learned trial Court convicted the appellant under section 302, Qisas and Diyat Ordinance, in the terms stated above.
5. I have heard Mr. Muhammad Ishaque Khoso, learned counsel appearing for 'the appellant and Mr. Ghulam Shabbir Memon, learned counsel appearing for the State.
6. Learned counsel for the appellant contends that the deceased was the wife of the appellant and the daughter of the deceased from the appellant was admittedly the Wali of the victim, therefore, Qatl-i-Amd committed by the appellant was not liable to Qisas. He submitted that the conviction and sentence awarded to the appellants thus cannot be sustained.
7. Learned counsel appearing for the State has not been able to controvert the legal position and has conceded to the remand of the case for fresh decision.
8. Perusal of the F.I.R. And prosecution evidence reveal that deceased Mst. Haseena was the wife of the appellant. A daughter was born out of such wedlock. The said daughter is a Wali of the deceased and is also the direct descendent of the offender/appellant.
9. According to the provisions contained under section 306, P.P.C., Qatl-i-Amd shall not be liable to Qisas, inter alia, in a case when any Wali of the victim is a direct descendant, howlowsoever, of the offender.
10. According to the provisions of section 308 where an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306, P.P.C., or the Qisas is not enforceable under clause (c) of section 307, P.P.C., he shall be liable to Diyat.
11. In the similar circumstances Honourable Supreme Court in the case Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others reported in PLD 1994 SC 885 was pleased to observe as under:--
(10) ............................................................
' It was apparent on the face of record that Mst. Amina Wali of the deceased was direct descendant of the offender. Language of sections 306 and 308, P.P.C., is plain enough to show that Qatil-i-Amd committed by the petitioner was not liable to Qisas and Qatl-i-Amd, not liable to Qisas is specifically punishable under section 308, P. P. C. Only
12. On arriving at the conclusion that the offender/appellant was not liable to Qisas, Honourable Supreme Court was pleased to remit the case to the Lahore High Court for fresh decision in accordance with law.
13. The facts and circumstances of the case in hand are exactly akin to the above case decided by Honourable Supreme Court. In the present case also the deceased was the wife of the appellant and the daughter of the appellant is the Wali of the victim.
14. In view of the law, supported by the verdict of the Honourable Supreme Court I am fully convinced that the conviction and sentence awarded to the appellant under section 302, P.P.C.
Could not be maintained. Accordingly the impugned judgment of conviction and sentence is set aside. The case is remitted to the trial Court for fresh decision strictly in accordance with law, in light of the above observations.
15. Appeal stands disposed of in the above terms.