' MIAN MUHAMMAD AJMAL, J.---By this common judgment, we propose to dispose of Criminal Appeals Nos.137 and 183 of 2001 as they have arisen out of common judgment and involve identical questions of law and facts.
2. Brief facts are that on 2-8-1998 at 4-35 a.m. a case under section 324, P.P.C. Was registered at Police Station, Gawalmandi, Quetta vide F.I.R. No,128 of 1998 against Jehanzeb (appellant in Criminal Appeal No,137 of 2001) on the statement of Mst. Durran Bibi complainant (appellant in Criminal Appeal 183 of 2001). According to the complainant, her daughter Mst. Siddiqa was married to Jehanzeb accused/appellant who was her tenant and out of the wedlock a female baby was born. Later on, Jehanzeb left the house and denied having married Mst. Siddiqa. On the fateful night, the complainant alongwith her daughter Siddiqa and granddaughter Hasina was sleeping in the courtyard. At 4-00 a.m. She woke up on hearing fire shots and saw Jehanzeb standing in the courtyard having pistol in his hand. He fired 4/5 shots at Mst. Siddiqa. On her hue and cry, Jehanzeb ran away in a red colour car. The complainant informed her son Nizamuddin who was living in neighbourhood and took Mst. Siddiqa to the hospital. On her report, the case was registered against Jehanzeb. After the death of Mst. Siddiqa section 302, P.P.C. Was added in the F.I.R.
3. The accused was arrested on the same day i.e, 2-8-1998 and after investigation, challan was put in the Court of Sessions Judge/S.T.A., Quetta for trial. The case later on was transferred to the Court of Additional Sessions Judge-II/S.T.A., Quetta. Charge was framed against the accused to which he pleaded and guilty and claimed trial.
4. The prosecution, in order to prove its case, produced 15 witnesses. Ocular account was furnished by Mst. Durran Bibi (P.W.2) the complainant who reiterated the version given in the F.I.R.
Nizamuddin, (P.W.4) brother of the deceased stated that his mother came to his house and told him that Jehanzeb has murdered his wife Mst. Siddiqa. He went there and he alongwith his mother and sister Dr. Sakeena removed the injured to the hospital. He also stated that the accused, Jehanzeb threatened him and his sister of dire consequences a week prior to the occurrence. Mst.
Sakeena Naeem (P.W.5) stated that at about 4-00 a.m. She after hearing the uproar went to the gate of the house where her mother told her about the incident. She alongwith her mother and brother took the injured to the hospital where she died at 8-40 a.m. She charged the appellant for the murder of her sister. Arifa (P.W.7) stated that few days before the occurrence she and her mother saw the accused driving a red colour car on the main road outside Saleem Complex. Syed Abdul Jabbar, Chemical Expert (P.W.8) examined bloodstained articles and found that same stained with human blood. Syed Zulfiqar Hussain, Judicial Magistrate-II, Quetta, (P.W.9) recorded the statement of Maulvi Abdul Baqi, under section 164, Cr.P.C. In presence of the accused. Abdul Rauf, Head Constable (P.W.10) witnessed the recovery of bloodstained shirt. Muhammad Aslam (P.W.11) witnessed the recovery of 4 empties of 32 bore, three leads, blood-stained material and other articles collected from the place of occurrence. Abdul Haleem (P.W.13) stated that he had the knowledge that the accused had married the deceased.
5. The accused in his statement under section 342, Cr.P.C. Denied the prosecution allegations and stated that he was innocent and falsely involved. He was examined on oath under section 340(2), Cr.P.C. And stated that on the fateful night he was at his home and was suffering from back ache, where he was treated by Dr. Muhammad Hanif. He produced Dr. Muhammad Hanif (D W.1) who stated that he examined the accused in the night and issued certificate in this respect. He also produced his servant Bismillah (D.W.2), who corroborated the statement of (D.W.1). Dr. Muhammad Amin Mengal (D.W.3) produced a certificate, according to which Mst. Siddiqa arrived in hospital at 4-30 a.m. On 2-8-1998 and on the same day she succumbed to the injuries in Neurosurgery Ward at 11-30 a.m. The learned trial Judge, on conclusion of the trial, acquitted the accused by giving him the benefit of doubt vide his judgment dated 4-8-1999.
6. Mst. Duran Bibi, complainant/appellant challenged the acquittal of Jehanzeb, accused/appellant before the High Court of Balochistan, Quetta vide Criminal Acquittal Appeal No,187 of 1999 and a learned Division Bench of the High Court keeping in view the fact that the appellant' was the real father of the baby girl who has survived after the death of her mother, set aside the judgment of the trial Judge, convicted him under section 308, P.P.C. And sentenced him to 14 years' R.I. With benefit of section 382-B, Cr.P.C.
7. The accused/appellant challenged his conviction and sentence before this Court through Criminal Petition No,82 of 2001 whereas the complainant/appellant filed Criminal Appeal No,13-Q of 2001 for enhancement of his sentence. Leave in the above petitions was granted by this Court vide separate orders dated 16-4-2001 and 10-5-2001, respectively.
8. Learned counsel for the convict-appellant supporting the acquittal judgment of the trial Court submitted that the occurrence has taken place during night hours and there being no source of light, the identification of the appellant was not possible. He further submitted that appellant has denied his marriage with the deceased, and the same was not proved by the prosecution, as such the motive as alleged was not proved. He submitted that the appellant was charged on suspicion and there is no direct evidence connecting him with the commission of crime. He urged that defence plea appears to be more reasonably possible, therefore, it was rightly accepted by the trial Court.
9. On the other hand, learned counsel for the complainant urged that the petitioner was living as a tenant in the house of the complainant and he was married with the deceased. Out of wedlock a female baby was born and thereafter he left the house due to matrimonial dispute. On the fateful night at 4-00 a.m. The accused entered the house of the complainant, fired 4/5 shots at his wife and fatally injure& her. The complainant woke up on hearing of fire shots and saw the accused with a pistol in his hand and identified him in the light of his motor car in which he ran away. He submitted that the appellant has committed Qatl-i-Amd, therefore, he is liable to be convicted and sentenced under the said section 302(b), P.P.C. By way, of Ta'zir.
10. We have heard the learned counsel for the parties and have gone through the record of the case.
11. Although leave was granted to consider whether under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, a private complainant could file an appeal against acquittal order of the accused yet this point was not pressed into service by the learned counsel for the appellant who argued the case as mentioned in para. 8 above, therefore, we also leave this point open to be determined in some other case.
12. As far as the question of identification is concerned, the complainant, a natural witness, has charged the appellant in promptly lodged F.I.R. Which was recorded by the police within 35 minutes of the occurrence, therefore, question of false implication or mistaken identity of the appellant would not arise. The appellant was known to the complainant as he was her tenant and got married to one of her daughters, therefore, it was not difficult for her to identify him at the spot in the street light and light of the motor car in which he ran away after the commission of offence.
Regarding motive, it has been consistently held by this Court that where motive is alleged by the prosecution but is not satisfactory proved, then this factor may be considered while deciding the quantum of sentence.
14. The argument of the learned counsel for the complainant that the appellant has committed Qatl-i-Amd and thus is liable to be convicted and sentenced under section 302(b), P.P.C. By way of 'Ta'zir' has some force. The appellant has killed his wife from whom he has a daughter Mst. Hasina, who is Wald of the deceased and also direct descedent of the appellant. Section 308, P.P.C. Came under examination before this Court in case of Faqirullah v. Khaliluzzaman (1999 SCM R 2203) wherein it was held as under:-- "19. In cases where Qisas is not available, the 'Shariah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Ta'zir. This kind of death punishment has been termed variously by the Jurists but here is a general agreement that such a punishment is justified under the Shariah in the special circumstances."
20. After hearing the learned counsel for the petitioner, the convict-respondent, the learned Dy. A.- G. And the learned State Counsel, we find that the learned Division Bench of this Court which annulled the death sentence awarded to the convict-respondent did not notice as to how the learned Supreme Appellate Court had converted the conviction of the convict-respondent from Tazir to that of Qisas. A bare perusal of the order of the Supreme Appellate Court would reveal that no reasons for alternation of sentence of death by way of Ta'zir to that of Qisas were furnished.
According to Mr. M. Ismail Qureshi, learned Senior Advocate Supreme Court representing the petitioner, it was on account of inadvertence. Another possibility appears to be that the statement of convict-respondent recorded uncle section 342, Cr.P.C. By the learned trial Judge confessing his guilt on the ground of 'Ghairat' was taken to be a voluntary and true under section 304(1)(a) of the P.P.C. This possibility is also not strong enough in that the question is if such a statement is at alt a 'confession' falling within the ambit of Qanun-i-Shahadat, 1984. Again even if it be so, whether it is not a sine qua non for such a conversion to be true and voluntary because it has to be either accepted as a whole or rejected in toto. In this view of the matter, the conversion of death sentence by the learned Supreme Appellate Court awarded by the learned Court by way of Ta'zir into death by way of 'Qisas' was sheerly an inadvertence. The learned Division Bench of this Court ought to have but had not adverted at all to this question and had, therefore, gone wrong in taking it for granted that the convict-respondent had been legally awarded death sentence by way of Qisas.
The death sentence was awarded to him by the learned trial Judge by way of 'Ta'zir' under section 302(b), P.P.C. It was certainly by inadvertence that it was converted into death sentence by way of Qisas. The question referred to lastly was very vital for the disposal of the Constitutional Petition No,36 and passing of the impugned order. We are of the considered view that there was no ground for conversion of the death sentence by way of Qisas. And this conversion being inadvertent is not sustainable in law."
15. In view of the above. Criminal Appeal No,137 of 2001 of the accused/appellant is dismissed while Criminal Appeal No,183 of 2001 of the complainant is partly accepted, the conviction of Jehanzeb is altered to section 302(b), P.P.C. And his sentence is enhanced to life imprisonment and he shall pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased excluding himself. In default of payment of compensation, he shall suffer six months' S.I. Benefit of section 382-B, Cr. P.C. Is allowed.