Malik Hamid Saeed, J.--Bakhti Rehman, Appellant, having been charged for committing the murder of his wife Raaed Bibi through dagger blows and also wcunding his daughters Rashida Bibi and Afsana Bibi, was tried by the learned Zilla Qazi, Malakand at Batkhela. He was found guilty of the charge. Death sentence was awarded to him as `Tazir' for committing the murder of his wife whereas for the injuries of his daughters he was convicted u/S. 337 to pay Daman of Rs. 10,000/- and Rs. 5000/- with imprisonment of one year and six months respectively.
2. Feeling aggrieved the appellant has filed the instant appeal whereas the murder reference sent by the learned trial Court is also before us.
3. The event was reported by Fazal Tawab, complainant (son of the accused and the deceased) in the Emergency Ward of Civil Hospital Batkhela, which, according to him, happened in the manner that in the early hours of the morning on 23.6.2002, he after taking tea in the house left for work in the fields and was busy there, when his minor brothers Fazal Kabir, aged 11/12 years and Fazal Aziz, aged about 8/9 years came there and told him that as a result of some quarrel between their father and mother, the father stabbed their mother severely whereas the sisters Rashida Bibi and Afsana Bibi while rescuing the mother also received simple injuries on their persons. The complainant rushed to the house and saw his mother lying severely injured and his sisters as simple injured, who were put in a datsun with the help of others and brought to Civil Hospital Batkhela. No motive was disclosed.
4. At the trial, besides the complainant, the two injured PWs Rashida Bibi and Afsana Bibi also in their statements charged the accused/ appellant for the commission of the offence. The accused/appellant earlier had confessed his guilt before the Magistrate, but in his statement u/ S. 342 Cr.P.C, he retracted from the same and instead developed a story that one Amir Rehman used to meet with his wife in isolation on which he had warned his wife and the quarrel between them took place for this reason.
5. The learned counsel appearing for the appellant did not argue the case on merits, but requested for reduction in sentence as in this case heirs of the victim are the direct descendants of accused/appellant, therefore, he is not liable to be awarded death penalty under clause (C) of Section 306 PPC. The learned counsel for the appellant argued that under the provisions of Section 308(1)(2) PPC, the accused/appellant is only liable to pay diyat and to suffer imprisonment up to 14 years as ta'zir.
6. We are, however, not convinced with the arguments of the learned counsel for the appellant that the accused/appellant was not liable to be awarded the sentence of death u/S. 306 PPC, as the provisions of Sections 306, 307 and 308 PPC are not to be read separately of Section 302 PPC. Qisas as defined in Section 299 Clause (k) PPC means, "punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali.
Punishment for Qatl-i-amd is provided u/S. 302 PPC. The Section is reproduced as below--
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir 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 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."
Clause (a) of the Section squarely deals with punishment of death as Qisas whereas its Clause (b) also provides sentence of death. Life imprisonment is also provided in Clause (b). Both these punishments are awarded under Ta'zir. It appears that the latter part of punishment i.e. imprisonment for life is dependent on what is given in Clause (b) of Section 302 PPC "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."
7. Thus it is clear that sentence of death for Qatl-i-amd can be awarded either by way of Qisas or Tazir. But where death as Tazir is not awarded, but the offence of Qatl-i-amd is proved, in absence of evidence as required u/S. 304 PPC, it is the discretion of the Court to award life imprisonment.
This discretion is in fact relatable to the facts and circumstances of the case i.e. any mitigating circumstances appearing in evidence.
8. Now we revert to the application of Sections 306 and 308 PPC. Qatl-i-amd as defined in Section 300 of PPC will.not be liable to Qisas when according to Section 306 PPC, an offender is a minor or insane .... or when an offender causes death of his child .... or when any wali of the victim is a direct descendant.
Section 306 only exonerates the offender from the punishment of Qisas and at once the offence is so exonerated, his crime is punishable u/S. 308 PPC. The pre-condition for bringing the case within the purview of Section 308 would be that the offence should be Qatl-i-amd, which was liable to Qisas. It therefore follows that unless the case has been tested on the yardstick of evidence as provided u/S. 304 PPC, a person cannot be held guilty of Qatl-i-amd liable to Qisas. The very heading of Section 304 PPC is "Proof of qatl-i-amd liable to qisas".
9. Now if we read the heading of Section 304 with heading of Section 306 PPC, the unavoidable conclusion is that for Qisas punishment, the prerequisite are the proofs as provided in Section 304 PPC itself with reference to either accused making confession before the trial Court or as required under Article 17 of Qanun-e-Shahadat. Sub-Clause (2) of Section 304 relating to hurt, which can be subjected to Qisas has further clarified what we have held above.
10. With all respect, we may mention here that in a number of judgments delivered by the August Supreme Court of Pakistan, where conviction is recorded for Qatl-i-amd of a person who is the direct descendant or by insane or by a person not adult, the august Supreme Court of Pakistan has awarded the punishment of life imprisonment u/S. 302(b) PPC, irrespective of the provisions of Section 308 PPC. Following are the instances: PLD 1997 SCM R 1307 (Sh. Muhammad Aslam and another vs. Shaukat Ali alias Shauka and others).
"The proviso to the same lays down that where offences have been waived or compounded, the Court may by its discretion having regard to the facts and circumstances of the case acquit or award Ta'zir to the offender according to the nature of the offence. The above Section is to be interpreted in the light of the guideline for interpretation provided in Section 338-F, which enjoins that the Court, while interpreting and applying the provisions of the Chapter in question of the PPC, and in respect of matters ancillary or akin thereto, shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. This provision does not nullify the well-settled proposition of law that in case where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh. However, in view of the amendment in Section 345(2), Cr.P.C., the sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the deceased with permission of the Court concerned.
1999 SCM R 2203 (Faqirullah vs. Khaliluz Zaman).
(Accused Khaliluz Zaman was charged for committing the murder of his wife Mst. Aasia, having a minor daughter from the wedlock. The learned Special Judge after trial found the accused guilty of the charge u/S. 302/324/337-F PPC and sentenced him to death as Ta'zir under Section 302 PPC and to rigorous imprisonment for one year under Section 337-F of the P.P.C. The convict filed appeal before the learned Supreme Appellate Court, Lahore, which set aside the conviction of the accused under Section 337-F PPC but upheld the conviction and sentence of death 'awarded to him under Section 302 PPC for Qatl-e-Amd under Section 302(a) of the PPC and sentenced him to death by way of Qisas. The Review Application filed by the convict before the learned Supreme Appellate Court was dismissed on the ground of lack of jurisdiction. The convict then filed writ petition against the judgment of the trial Court and that of the Supreme Appellate Court in the Lahore High Court, Lahore, which was subsequently withdrawn and the jurisdiction of the August Supreme. Court under Article 184(3) of the Constitution was invoked.) The learned Bench of the August Supreme Court of Pakistan in the aforesaid circumstances observed as under: "After hearing the learned counsel for the petitioner, the convict-respondent, the learned D.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 Taz'ir to that of Qisas. A bare perusal of the order of the Supreme Appellate Court would reveal that no reasons for alteration of sentence of death by way of Tazir 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 the convict-respondent recorded under 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 all a "confession" falling within the ambit of Qanun-e-Shahadat, 1984. Again even if it be so, whether it is not a sine qua non for such a confession 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 trial Court by way of Tazir 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 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 Tazir under Section 302(b) P.P.C. It was certainly by inadvertence that it was converted into death sentence by way of Qisas .. Accordingly, we accept this review petition, set aside the impugned order of the Court and restore that of the learned Special Judge who awarded sentence of death to the convict-respondent by way of Tazir.
2002 SCM R 629 (Umar Hayat vs. Jahangir and another).
"Keeping in view the age of the respondent at the time of incident supported by the Matriculation Certificate and College Certificate and the provisions of Section 299, P.P.C. read with Section 306, P.P.C. the case of the respondent is fully covered by the above provisions and he, in any case, is entitled to the benefit of the above provisions. We further find that the respondent at the time of occurrence was not adult, therefore, the death penalty awarded by the learned trial Court was not legal and proper. The High Court, as stated hereinabove, by ignoring natural and reliable evidence coupled with the motive and recoveries, on surmises and conjectures allowed the appeal of the respondent, which has resulted in miscarriage of justice. In our considered opinion, the impugned judgment is not sustainable, which is hereby set aside.
For the facts, circumstances and reasons stated hereinabove, we allow this appeal and sentence the respondent to life imprisonment....
2003 SCM R 98 (Jehanzeb and another vs. The State and others)
"Ss. 308 & 302(b)--Appraisal of evidence--Complainant who was the natural witness of the occurrence and knew the accused being her son-in-law as well as her tenant had charged the accused in the promptly lodged F.I.R. for the murder of her daughter. False implication or mistaken identity of accused, therefore, was not possible as the complainant could easily identify him at the spot in the street light and the light of the motor car in which he ran away after the commission of offence--Accused had killed his wife from whom he had a daughter who was Wali of the deceased and also direct descendant of the accused--Accused had committed ''Qatl-iAmd" and he was liable to be convicted and sentenced under S. 302(b), P.P.C. by way of Tazir--Conviction of accused under S. 308, P.P.C. was consequently altered to S. 302(b), P.P.C. and his sentence of 14 years R.I. was enhanced to imprisonment for life with the direction to pay Rs. 50,000/- as compensation under S. 544-A, Cr.P.C. to the legal heirs of the deceased excluding himself."
7. In our view, the provisions of Sections 306 and 308 PPC would be applicable when the Court awards the sentence of death to an offender under Section 302(a) PPC, subject to the availability of the evidence as provided in Section 304 PPC. In this case, though the accused/appellant had made a confession before the Judicial Magistrate, but at the trial he retracted from it. In addition, the witnesses of the occurrence were not subjected to the test of Tazkiyah-Al-Shuhood, hence the accused/appellant was not liable to be awarded punishment u/S. 302(a) PPC. The learned trial Court thus awarded death sentence to the appellant u/S. 302 PPC, which fall under sub-clause (b) and therefore the provisions of Section 306 PPC cannot be pressed into service.
8. Under Section 302(b) PPC, the punishment of death or imprisonment for life as ta'zir however should be awarded according to the facts and circumstances of each case. In this case a wife has been killed by the husband, leaving behind male and female children, but in exchange of hot words without any pre-planning and motive, as such the facts and circumstances of the case was not warranting award of maximum punishment as tazir when the murder was not the result of pre- planning nor there was such a motive but was due to sudden exchange of hot and harsh words between the accused (husband) and deceased (wife). The death sentence of the appellant is therefore liable to be altered on this ground.
9. For the aforesaid reasons, we while dismissing the appeal in hand would modify the sentence of death awarded to the appellant with that of imprisonment for life. The sentences u/S. 337 PPC shall whoever remain in tact. The Murder Reference due to reduction in the quantum of sentence is hereby answered in the negative.