1. MUHAMMAD NADIR KHAN, J.--------F.I.R. No. 195 of 1999, under sections 302 and 337-ADF, P.P.C.
2. Was registered at Police Station, City Quetta on 14-8-1999 on the statement of Mst. Salima Bibi were of appellant to the effect that on 13-8-1999 at about 8-30 p.m. The appellant gave severe beating to his four years old daughter Iram Bibi by which she fell unconscious and subsequently died in the hospital on 14-8-1999 at 10-10 a.m. While appellant also caused injuries to his were Salima Bibi when she questioned beating of her daughter.
3. Appellant was charged on two counts i.e. Under section 302, P.P.C. For committing Qatl-i.Amd of Iram Bibi and 337-A, P.P.C. For inflicting injuries to Mst. Salima.
4. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution's allegation by pleading innocence and claimed that Iram Bibi sustained injuries by falling from stairs. He deposed to such effect in his statement recorded under section 340(2), Cr.P.C. And he also produced D.W.
5. Asif Khan in support of his plea.
6. Can the conclusion of trial the learned Sessions Judge, Quetta held appellant guilty on both the counts of the charge resultantly appellant was convicted under section 302(b), P.P.C. And sentenced to life imprisonment as 'Tazir' and under section 337-A, P.P.C. He was sentenced to one year R.I. With Daman of Rs.10,000 payable to the complainant/injured.
7. Appellant feeling dissatisfied with his conviction preferred appeal wherein two-- fold contention has been raised. Appellant while claiming acquittal denying the charge also pleaded that for committing Qatl of his own daughter appellant cannot be convicted under section 302, P.P.C. His case at the best can be covered under section 308, P.P.C.
8. M/s. M. Aslam Chighti and Syed Ayaz Zahoor, Advocates representing the appellant without going into the merits pressed the appeal only on th applicability of section 306(b) read with section 308, P.P.C, stating that there is no cavil to the legal position that father is not liable to Qisas for Qatal of his child in view of provisions of section 306(b), P.P.C. It was further contended that the relevant provisions on the subject have been interpreted in a series of cases by the Hon'ble Supreme Court and High Courts. Reliance A's placed on the following case-law:--
1. 1993 PCr.LJ 1403 (2) 1998 SCM R 1771, (3) 1998 PCr.LJ Lah. 24, (4) 2001 SCM R 1416 + 1775.
9. Assistance of Raja M. Afsar was sought as amicus curiae who without disputing the legal status of applicability of sections 306(b) and 308, P.P.C. In the present case contended that the case of appellant is not of diminished liability as the death was caused after torturing the helpless child `who was put to death in a most callous and cruel manner. Raja M. Afsar referring to the judgment of Hon'ble Supreme Court i.e. Faqirullah v. Khalil-uz-Zaman (2000 SCMR 220), emphasized that maximum quantum sentence is to be awarded having regard to the above-referred behaviour of appellant.
10. Miss Iram Mehmood counsel complainant and Raja Aamir Abbas Advocate for State also could not dispute site legal position and adopted the submission made by Raja M. Afsar and prayed for awarding of maximum sentence to the appellant.
11. We have carefully examined . The contentions as agitated by the counsel for the parties as well as that of Raja M. Afsar (amicus curiae). The record has been pe sed carefull'ly. It is an admitted fact that dec aced Iram Bibi was the minor daughter of appellant who was charged and convicted tutder section 302(b), P.P.C. For committing Qatl-i--Amd of Iram Bibi. The question which has cropped up in view of the submissions made by the learned counsel for the parties and case-law cited by them is, as to whether the appellant could have been convicted and sentenced under section 302, P.P.C. And if not then as to under which provision of P.P.C. He is liable to conviction and what should be the quantum of sentence to which he is Yiable.
12. For Qatl-i-Amd under section 302, P.P.C. Three kinds of punishments have been provided which read as under:--- "302.. Punishment of Oatl-i-Amd.----Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be: (a)Punished with death as Qisas.
13. (b)Punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if, the proof in either of the forms specified in section 304 is not available; or (c)Punished with imprisonment of either description for a term which may extend to twenty-five, years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
14. Obviously no departure can be made from the prescribed punishment, if a person found guilty of Qatl-i-Amd is to be awarded with one of the punishments hereinabove mentioned. However 302(c) provides lesser punishment where according to Injunction of Islam the punishment of Qisas is not applicable, whereas; by virtue of provisions of section 306, P.P.C. The offender is not liable to Qisas even if he is proved to be guilty of Qatl-i-Amd. To have the exact account of section 306, P.P.C. The same is reproduced as under:--- "306. Qatl-i-Amd not liable to Qisas:----Qatl-i-Amd shall not be liable to Qisas in the following cases namely:-- (a)when an offender is a minor or insane: Provided that, where a person liable to Qisas associates with himself in the commission of the offence a person to liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas.
15. (b)When an offender causes death of his child or grandchild howlowsoever: and (c)When any Wali of the victim is a direct descendant, howlowsoever of the offender."
16. Reading the provisions of sections 302 and 306, P.P.C. Make the proposition clear that section 302(c) covers the cases where Qisas is not applicable' whereas section 306 deals with cases where the offender is not liable to Qisas at all. Therefore, both the provisions are found to be applicable in different circumstances. Section 306(b) makes the offender not liable to Qisas if he commits Qatl- i-Amd of his child. Admittedly deceased Iram Bibi was the daughter of appellant and he has been held guilty for committing her Qatl-i-Amd, therefore, having regard to the above-quoted provisions of law, the case of appellant as far as his conviction and sentence to which he can be liable does not attract the provisions of section 302, P.P.C. But apparently will fall under section 306(b), P.P.C.
17. For being not liable to Qisas.
18. The judgments relied by the learned counsel for the appellant on perusal show that no case similar to the case in hand was dealt through the same, however, the principle regarding applicability of the relevant provisions of law on the point have been discussed and dilated upon in the case titled , as Ali Bahadur and 2 others v. The State (1998 PCr.LJ 24), the appellant Abdul Malik was sentenced to death who was not an adult hence he was held to be not liable to Qisas and his conviction was converted from section 302(b) to section 306 read with section 308, P:P.C. With the following observation:-- "The conviction and sentence of Abdul Malik appellant is to be examined keeping in view his age which according to the evidence brought on record is 15 years. For this purpose a reference to the- -charge-sheet and his statement under section 342, Cr.P.C. Can be made with advantage. The school certificate (Exh. D. C.) produced by Abdul Malik also shows his date of birth as 8-1-1978 which means that at the time of occurrence, he was about 14 years and 9 months. The learned trial Judge had rejected the school certificate on the ground that it is not a reliable evidence and has relied upon his observation that by appearance, the aforesaid accused looked to he of the age of 18/19 years This observation is given by the learned trial Judge while writing the judgments but nowhere else during the trial. The right occasion for such observation was when the accused had appeared before him at the time of framing of charge or when he was examined under section 342, Cr.P.C. On none of the two occasions, any such observation was made. Hence his age is undoubtedly 15 years which closely tallies with the .Age of the aforesaid accused/appellant given in the school leaving certificate. As such, it cannot be said in the absence of any other proof that the accused was not in the range of 15 years of age at the time of occurrence. Hence, it is quite clear that the aforesaid accused/appellant Abdul Malik was not adult at the time of occurrence as he had not attained the age of 18 years as defined in section 299(a), P.P.C. Such an accused being a minor shall be dealt with in accordance with the provisions contained in section 306 read with section 308, P.P.C. An offender who is a minor shall not be liable to Qisas for Qatl-i-Amd under section 306, P.P.C. Hence such an offender shall be liable to 'punishment in the form of Diyat as provided in section 308, P.P.C. We have already held that the aforesaid offender had participated in the murder of the deceased by inflicting him Chhuri blows, therefore, the defence story that he was .Falsely implicated only because the complainant party wanted to conceal their aggression and was afraid of that his father being an influential person will expose them to law, appears to be the most improbable as against the against the aforesaid offender having been proved to be not punishable with Qisas but punishable under 'section 308, P.P.C., we convert his conviction from section , 302(b), P.P.C. To section 306 read with section 308, P. P. C. And sentence him to pay an amount of Rs.2,29,000 (rupees two lacs and twenty-nine thousands) which is the existing amount of Diyat for the present financial years and shall be recoverable from his person and property, if any. We further sentence him to 7 years' R.I. As Tazir under second proviso to subsection (1) read with subsection (2) of section 308, P.P.C. As the said accused had attained sufficient maturity so as to be able to realize the consequences of his criminal act."
19. 2001 SCMR 232, the convict/appellant charged for committing Qatl-i-Amd of his son-in-law who also had a minor child and left behind a widow (daughter of the convict) being the ' Walis' and direct descendants of the appellant, who was held to be not liable to Qisas with following observations:--- "In the instant case, the appellant is charged for the murder of Muhammad Abbas his son-in-law, whose daughter Mst. Farida Bibi as married to the deceased who has, a minor son out of the wedlock. Mst. Farida Bibi widow and her son are Walis of the deceased and the widow being the daughter of the offender/appellant is his direct descendant. Therefore, under section 306 (c), P.P.C.
20. The offence committed by the appellant was not liable to Qisas, i.e. Death, however, such an offender was punishable under section 308, P.P.C. And offender was liable to pay Diyat and under its subsection (2) in addition to punishment of Diyat, he could be awarded imprisonment up to 14 years as tazir. Besides the aforesaid provision of law, the widow and brother of the deceased have waived their right of Qisas, hence under subsection (2) of section 309, P.P.C. Where there are more than one Wali of the victim, the Wali who does not waive his right of Qisas, shall be entitled to his share of Diyat. In this case there are more than one Wali, i.e. Widow and the minor son of the deceased whose right of Qisas cannot be Waived, therefore, minor son is entitled to his share of Diyat. "
21. 2001 SCMR 1775) the Hon'ble Supreme Court converted the conviction of appellant from section 302, P.P.C. To section 308(2), P.P.C. Holding that the case of appellant was, covered under section 306(c), P.P.C. As he committed Qatl--i-Amd of his were whose daughter Ameena being the Wali of deceased was direct descendant of the convict.
22. Thus, in view of the above-quoted judgments and the relevant provisions of law hereinabove referred, the case of appellant for committing Qatl-i-Amd of his daughter is found to be covered under section 306(b), P.P.C. While section 308 provides the punishment for Qatl-i-Amd not liable to Qisas. To have a ready reference, section 308, P.P.C. Is reproduced as under:-- "308(1). ---Where an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat: Provided that, where the offender, is minor or insane, Diyat shall be payable either from his property or by such person as may be determined by the Court: Provided further that where at the time of committing of Qatl-i-Amd the offender being a minor, had attained sufficient maturity, or being insane had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir: Provided further that where the Qisas is not enforceable under clause (c) of section 307 the offender shall be liable to Diyat only if there is any Wali other than offender and if there is no Wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
23. (2)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 Tazir. "
24. The above provisions show that in cases where the offender is not liable to Qisas he shall be liable to Diyat however subsection (2) of section 308 leaves it to the discretion of the Court to award punishment of imprisonment to the offender which may extend to fourteen years as Tazir having regard to the facts and circumstances of the case. In order to determine whether the facts and circumstances of present case calls for any leniency in the sentence of imprisonment and if so what should be its quantum, we have to advert to the evidence available on the record and facts and circumstances which resulted into death of Iram Bibi.
25. P. W.1 Salima Bibi mother of deceased in her statement described the account of the affairs which finally ended in the death of Iram Bibi. According to Salima Bibi on the fateful evening at about 8- 00 p.m. Iram was present in the room, whereas, P. W. I was in the other room Nasir went up--stairs alongwith his mother and sisters and after a while came down, went to the room where Iram was sitting and started beating Iram and the child went on shouting/saying P. W. 1 asked the mother of Nasir to go and save Iram from the hands of accused which received no attention as it was stated to be the usual conduct of Nasir. While P.W.1 was looking for help, Naeem came there who opened the door of room where Iram was found lying unconscious her faeces matter and urine had come out which P.W.1 cleaned and accused Nasir also gave her a kick blow at her eye. P.W.1 asked the family members to take Iram to hospital whereupon Naeem took her to hospital but she was not allowed to accompany her `unconscious daughter Iram and when her mother-in-law returned from hospital at 2-00 p.m. She consoled her by informing that Iram is better, whereas, Naeem returned in the morning who informed that she was taken to hospital by Nasir where she saw that blood had oozed out from the mouth of Tram, who despite her repeated calls did not respond on which the nurse was called and Tram was examined by the doctor who declared her dead.
26. P.W.4 Dr. Muhammad Amin Mengal after recovering the dead body of Tram by exhumation conducted the post--mortem. The observations made by P.W.4 are as follows:-- "II. CRANIUM AND SPINAL CORD (i)An area of 2 x 2 c.m. Hairless (old) area with very scanty fine hairs on vault of skull slightly towards right side, this area was also slightly depressed.
27. (ii)There was a scar 5 x 2 c.m. In size with few hairs on top of vault and slightly left side.
28. (i.e)An antemortem wound on right parietal region on its superior most parts, bluish black 1-1/2 x 1- 1/2 c.m. With irregular margins, and shaped and transversely placed.
29. (iv)Bluish discolouration (ecchymosis) around the eyes.
30. (v)An antemortem abrasion 1-1/2 x 1-1/2 c.m. Reddish in colour above the right eye-brow.
31. (vi)Left cheeck abraded 2 x 2 c.m. In size with scab brownish in colour.
32. (vii)An antemortem wound already stitched below the chin 3 c.m. In length transversely placed.
33. III. THORAX. Healthy.
34. IV. ABDOMEN. ---Slightly distended and greenish discolouration on flanks (post-mortem) rest healthy.
35. V. APPENDAGES (i)An abraded wound on left upper arm lateral aspect 5 x 5 c.m. Blood-stained.
36. (ii)Three longitudinal abrasions on left forearm posteriorly.
37. (i.e)Multiple small old scars on dorsum of left hand.
38. (iv)The fingers of both hands were semi flexed and clenched.
39. VI. BACK (i)An antemortem abraded wound reddish in colour on mid of dorso saeral region (back; 5 x 2 c.m.
40. In size.
41. (ii)Five finger print bruised" Y " shaped on lateral aspect of left thigh.
42. (i.e)Multiple scars (small) on left knee anteriorly.
43. (iv)An antemortem bruise " Y " shaped reddish brown in colour on medial aspect of left leg.
44. INTERNAL EXAMINATION AUTOPSY (i)There was haematom involving the left forehead, parietal up to occipital region, the underneath sub-cutunous tissue and muscle were lacerated of the scalp.
45. (ii)There was " Y " shaped fracture involving the frontal, parietal and occiptal bone transversely of left side of skull bones measuring 13 c.m. Long and 3 c.m. Of right horn of the " Y " shaped.
46. (i.e)Beneath there was sub dural haemorrhage.
47. (iv)One haemotom on right hemisphere which was cut for Histopathology.
48. (v)Blood collected from the cranial cavity and grouping done which was AB (positive).
49. II.THORAX. Healthy.
50. III.ABDOMEN. Stomach ruptured, a piece was taken for Histropathology.
51. IV.GENETELIA. Normal and healthy.
52. X-RAY OF THE DECEASED BEFORE DEATH.
53. Skull shows fracture involving the vault bone of skull.
54. BEFORE AUTOPSY X-rays of the skull, chest, apurlents and lower limbs and thigh and abdomen were taken. The report revealed that fracture seen involving the vault bone of skull. The distal ends of hands are fixed due to confracture with no visible fracture. Other parts were normal.
55. HOSTOPATHLOGICAL DEPARTMENT/LABORATORY REPORTS (i)Blood revealed AB positive group.
56. (ii)Brain tissue.
57. (i.e)Stomach tissue.
58. NOTE: Stairs of house of deceased was measured on 17-8-1999 at 1-30 p.m. Alongwith Mr. Muhammad Ilyas Investigating Officer which was eight feet in height.
59. The probable time between injury and death i.e.: When the deceased was alive, which was admitted 13-8-1999 at 10-00 p.m. And dies on 14-8-1999 at 10-10 a.m.
60. Between death and post-mortem i.e.: 14-8-1999 at 10-10 a. m. 16-8-1999 at 7-15 a.m.
61. OPINION The cause of death of deceased was fracture of cranial bones and sub dural hemorrhage, alongvscith ruptured stomach; mover over the dead body revealed on its external examination a book picture of 'Beltered baby syndrome."
62. I prepared provisional Autopsy Report on 18-8-1999. Then on receipt of Histropathological Report on 9-9-1999, I supplemented the reports in the post-mortem. The report reveal:-- (i)Stomach partly autopsied tissue with no significant pathology seen.
63. (ii)Brain tissue with local haemorrhage area."
64. The injuries on the person of deceased and the evidence of P.W.1, abundantly shows the behaviours and conduct of the appellant, who is found to have acted in a cruel and callous manner while beating her own daughter to death, therefore, we find it fit case where discretion under section 308(2), P.P.C. Is to be exercised quiet cautiously and reasonably. At this juncture the contention of Raja M. Afsar as amicus curiae that in case where Qisas cannot be awarded, the Courts can award appropriate punishment to the offenders keeping in view circumstances of the case and such punishment can reach up to life imprisonment or even death by way of Tazir. In support of his contention reliance was placed on the judgment titled as Faqirullah v. Khaliluz Zaman (1999 SCM R 2203). The relevant observation relied by the learned amicus curaie read as under:-- "In cases where Qisas is not available, the Shariah has given authority to the Sate and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case.
65. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Shariah in the special circumstances."
66. The bare reading of the above-quoted observation of Hon'ble Supreme Court, indicate that the same covers the cases where Qisas is not available but it cannot be applied to the cases where offender is not liable to Qisas at all. Admittedly in the present case the appellant who is found to have caused death of his daughter in view of f section 306(b) is found to be not liable to Qisas and his case, therefore, falls under section 308, P. P. C. Where under imprisonment extendable up to 14 years can be awarded as Tazir. The contention being in conflict to the specific provision of law, cannot be accepted.
67. Before parting with the case, we record our appreciation for the assistance extended by the learned counsel for the parties and specially the laborious efforts made by Raja M. Afsar as amicus curiae which helped us in reaching to a just conclusion on points involved in the case in view of the plea raised by the appellant's learned counsel.