ZAHID KURBAN ALVI, J.---This Criminal Jail Appeal has been filed by the accused.. Learned counsel for the accused Mr. Habibullah Shaikh has appeared and has urged before this Court that he would not challenge the judgment to the extent of facts are concerned. He however, wanted to argue a legal issue and that whether the accused should have been convicted and sentenced under 302 or he should be convicted and sentenced under 306(C), P. P . C . Read with. Section 308(2), P . P.0 .
2. He had based his line of arguments on the ground that the accused is supposed to have murdered his wife. After the death of his wife the persons left behind as legal heirs are his two children; one son and daughter.
3. Section 300, P.P.C. Relates to Qatli-Amd and section 302 relates to punishment for Qatl-i-Amd.
Section 304 relates to proof of Qatl-i-Amd liable to Qisas. Section 305 relates to Wall and who shall be the Wali. Section 306 relates to Qatl-i-Amd not reliable to Qisas. Section 307 relates cases in which Qisas for Qatl-iAmd shall not be enforced and section 308 relates to punishment to Qatl-i- Amd not liable to Qisas. All these sections starting from section 399, P.P.C. Given under heading of Chapter 16 relating to offences affecting the human body.
4. Arsh has been defined under 299 as the compensation to be paid to the victim or his heirs under this chapter. Daman means the compensation determined by the Court to be paid by the offender to the victim the causing hurt not liable to Arsh. The Diyat means the compensation specified in section 323 payable to the heirs of the victim. Qisas means punishment by causing similar hurt at the 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. Tazir means punishment other than Qisas, Diyat, Arsh or Daman and Wali means a person entitled to claim Qisas.
' It would be appropriate to reproduce the following sections:- "300. Oall-i-Amd.---Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd.
301. Causing death of person other than the person whose death was intended.---Where a person by doing anything which he intends or knows to be likely to cause death, causes death of any reason whose death he neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable for Qatl-i-Amd.
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;
(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
(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.
303. Oatl committed under Ikrah-iTam or Ikrah-i-Naqis.---Whoever commits Qatl:--
(a) under Ikrah-i-Tam shall be punished with imprisonment for a term which may extend to twenty five years but shall not be less than ten years and the person causing Ikrah-i-Tam, shall be punished for the kind of Qatl committed as a consequence of his Ikrah-i-Tam; or
(b) under Ikrah-i-Naqis shall be punished or Qatl committed by him and the person causing Ikrah- iNaqis shall be punished with imprisonment for a term which may extend to ten years.
304. Proof of Qatl-i-Amd liable to Qisas. Etc.---(1) Proof of Qatl-iAmd shall be in any of the following forms namely:--
(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or
(b) by the evidence as provided in Article 17 of ' the Qanun-eShahadat, 1984 (P.O. No.10 of 1984).
(2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to Qisas.
305. Wali.---In case of Qatl, the Wali shall be--
(a) the heirs of the victim, according to his personal law, and
(b) the Government, if there is no heir.
306. Oatl-i-Amd not liable Oisas.--- Qatl-i-Amd shall not be liable to Qisas in the following cases, namely:--
(a) when an offender is minor or insane: Provided that, where a person liable to 'Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;
(b) when an offender causes death of the child or grandchild, how lowsoever; and
(c) when any Wali of the victim is a direct descendant, howsoever, of the offender.
307. Cases in which Qisas for Qatl-iAmd shall not be enforced.---Qisas of Qatl-i-Amd shall not be enforced in the following cases, namely:--
(a) When the offender dies before the enforcement of Qisas.
(b) When any Wali voluntarily and without duress, to the satisfaction of the Court, waives the right of Qisas under section 309 or compounds under section 310; and
(c) When the right of Qisas devolves on the offender as a result of the death of the Wali of the .Victim, or on the person who has no right of Qisas against the offender.
308 Punishment in Qatl-i-Amd not liable to Qisas, etc.---(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 cr in sane, 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 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 Ta'zir: ' 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 Ta' zir. .
(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 Ta'zir.
5. Learned counsel for the appellant has relied upon the case of Khalil-uzZaman v. Supreme Appellate Court, Lahore reported in PLD 1994 SC 885. In this case Qatl-i-Amd was committed by the husband of his wife leaving behind children not liable to Qisas. Court had no lawful authority/jurisdiction to convict the accused under 302. The deceased was the wife of the accused and from the wedlock a daughter was born. The daughter was the sole legal heir of the deceased and also the direct descendant of the accused/petitioner, The Court was of the opinion that the Lower Courts should have taken note of section 306(C), P.P.C. Clearly stipulates that if Qatl-i-Amd is committed by the husband of his wife leaving behind children then the same was not liable to Qisas. They further were of the opinion that law has specifically provided for punishment of Qatl-i- Amd not liable to Qisas under 308, P.P.C. This section does not provide death penalty. Therefore, the Appellate Court had no lawful authority/jurisdiction to convict the accused under 302, P.P.C. Or to impose penalty of death upon him and had acted in gross violation of law. The Honourable Supreme Court had further held that the Statute Courts drive authority to punish the accused from Statute and if the Statute does not provide death penalty then the Courts have no jurisdiction to award the same. Accordingly the conviction and sentence was set aside. It was declared coram non judice. They were further of the opinion that the Wali (daughter) of the deceased was the direct descendant of the offender and language of sections 308 and 306, P.P.C. Has been enough to show that Qatl-i-Amd committed by the accused was not liable to Qisas and Qatl-i-Amd not liable to Qisas was specifically punishable under 308, P.P.C. Only. The accused is therefore, to be convicted under 308, P.P.C. And not under 302, P.P.C. Courts further observed that had the Courts below taken notice of the sections 306, 307 and 308, P.P.C. They would not have sentenced the accused to death under 302, P.P.C. The error committed by the Courts in convicting the accused under 302, P.P.C. And sentenced him to death was so serious that had the accused been eventually hanged it would have been amounted to the murder through judicial process. Pleas of good faith - bona fide, ignorance of law, incompetency are not available in such cases. The Honourable Judges have also quoted from Hadith of the Holy Prophet (p.b.u.h.). They have further struck note of warning to all the Courts in the country to exercise utmost care and caution while dealing with the life and liberty of citizens causing slight carelessness on their part may deprive a citizen of his life and may cause irreparable hardship and damage to his family.
6. In the case of Faqirullah v. Jalil Zaman 1998 SCMR 2203 in a Court Review Petition the Full Bench of the Supreme Court has held that provisions of sections 306(C), 304(a) and (b) ' are not violative of any Quranic Text or the Sunnah is also not violative of the Injunctions of Islam. To that extent the Full Bench has relied upon the Islamic Qanoon Injunction, as Urdu translation of Kitabul Akhtiar which has been agitated by Moulana Salamat Khan. They have relied on the observations made at page 196 of the said book. They have also relied on a treaties called Qanoone-Qisas and Diyat compiled by a Special Committee of Egyptian Scholars of Dr. Mehmood Ahmed Ghazi. They have also relied upon statement of law given by Professor Khan Muhammad Chawla and published at Markaz-e- Taqhliq, Lahore.
7. In the case of Muhammad Abdullah Khan v. The State 2001 PSC (Cr1.) 632, Full Bench of the Honourable Supreme Court whilst discussing section 302 read with sections 306 and 308, P.P.C.
Have given a finding on the question as to whether the accused being not liable to Qisas in view of the provisions contained in section 306 read with 308 can be punished under section 302, P.P.C.
They have come to the conclusion that deceased was survived by a two years old daughter who was admittedly the Wali of the deceased and descendant of the accused and, therefore, the appellant is not liable to Qisas in view of the provisions as enumerated in section 306, P.P.C. And conviction can only be awarded under section 308(2), P.P.C. The learned Full Bench has also relied on the case of Khalil uz Zaman v. Supreme Appellate Court, Lahore PLD 1994 SC 885. Therefore, whilst concluding the Full Bench has held that the appellant could only be convicted under 308, P.P.C. Which does not provide the sentence of death or life imprisonment. Therefore, the impugned judgment was modified and the appellant was convicted under section 308(2) to undergo 14 years'
R.I. And he was also held liable to Diyat.
8. In the above matter it is an admitted position that the deceased was killed by her husband. Both out of the wedlock had a son and a daughter (two Walis). In view of the dicta laid down in the above judgments of the Honourable Supreme Court we would modify the impugned judgment and hold the appellant convicted under section 308(2), P.P.C. To undergo 14 years' R.I. And shall also be liable to pay Diyat.
' The appeal stands disposed of in terms of the above.