Raja Muhammad Sabir, J.--Haji alias Zafar was convicted by the learned Additional Sessions Judge, Toba Tek Singh under Section 302(b) PPC and sentenced to death and fine of Rs, 20,000/- in default whereof to undergo one year R.I.; which if recovered was directed to be paid to the legal heirs of the deceased Nawab Bibi under Section 544-A Cr.P.C. vide judgment dated 1.6.1998. He has challenged his conviction in this appeal whereas the learned trial Court has sent murder Reference No, 482/1998 for confirmation of death sentence. Both these matters are being disposed of through this judgment.
2. Brief facts of the case as gathered from the FIR Ex. PA are that husband of Mst. Bakhat Bhari complainant had died six months prior to the registration of the case. She was residing with her children in a house constructed in her land. On 12.5.1996 at about 4.00 P.m. Mst. Bakhat Bhari, her son Haqnawaz and son-in-law Noor Ahmad were sitting in the Courtyard of their house. Mst.
Nawab Bibi deceased aged about 19/20 years was grazing the buffalos near the house. All of a sudden Haji alias Zafar accused armed with 7-MM rifle came there and fired at Nawab Bibi which hit her at her left humerus. The accused fired the second shot with 7-MM rifle which hit at the left side of back of her trunk whereupon she fell down. Mst. Bakhat Bhari complainant, Haq Nawaz and Noor Ahmad, PWs witnessed the occurrence and rushed to attend Mst. Nawab Bibi who died at the spot. Haji alias Zafar brandishing the rifle fled away. The motive for the occurrence is stated to be that about 10 or 11 years prior to this incident, Sharai Nikah of Mst. Nawab Bibi deceased was performed with Haji alias Zafar accused and in lieu of watta sharai Nikah of brother of Mst. Nawab Bibi deceased was solemonized with Mst. Rajan Bibi sister of Haji alias Zafar accused. Due to some differences brother of Mst. Nawab Bibi deceased divorced sister of accused. However, accused did not divorce Mst. Nawab Bibi deceased and had been asserting that he would not divorce Mst.
Nawab Bibi deceased and would make her to live as wife with him but this demand was not acceded to by the complainant party. Due to this grudge accused murdered Mst. Nawab Bibi.
3. After submission of the challan learned trial Court charge sheeted the accused to which he pleaded not guilty and claimed trial. The prosecution to prove its case examined as many as nine witnesses. Mst. Bakhat Bhari complainant appeared as PW-1 and reiterated the story of the FIR. Haq Nawab appeared as PW-2 and supported the complainant Mst. Bakhat Bhari.
Dr. Abdul Rauf. Medical Officer THQ Hospital, Kamalia who conducted the post-mortem examination on the dead body of the deceased appeared as PW-3 and stated that Muhammad Tufail constable delivered to him injury statement Ex. PC and inquest report Ex. PD which bears his signatures alongwith endorsement Ex. PC/1. He found the following injuries on her person:--
1. A lacerated wound 30 cm x 10 cm on the lateral side of left upper arm with all muscles clearly seen.
2. A contusion 7 cm x 2 cm on the right cheek.
3. Multiple contusion 4 cm x 4 cm on the right side of neck.
4. An abrasion 2 cm x 5 cm above the right shoulder.
5. A lacerated 1 cm x 1 cm entrance wound to the right of right breast.
6. A lacerated 1 cm x 1 cm entrance wound to the left of back of trunk.
7. Left index finger was anteriorly and laterally black.
8. A lacerated exit wound on the right side of trunk measuring 2 cm x 2.5 cm.
In the opinion of the doctor death of the deceased occurred due to hemorrhage and shock. All the above mentioned injuries were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm weapon and were ante mortem. Probable duration between the injuries and death was immediate and between death and post-mortem examination was about 12 to 18 hours. Ex. PE is the correct carbon copy of post-mortem report.
Muhammad Tufail Constable No, 609 escorted the dead body of the deceased to the mortuary for autopsy appeared as PW-4. After post-mortem examination he produced before the Investigating Officer last worn clothes of the deceased qameez P-2, shalwar P-3, Dopatta P-4 and two sealed phials which he took into his possession vide memo Ex. PF. Muhammad Ishaque Revenue Patwari who prepared site-plan Ex. PG and its duplicate Ex. PG/1 appeared as PW-5.
Muhammad Quresh MHC No, 603 who kept the parcels of blood stained earth, 7-MM rifle and live cartridges intact in the malkhana and delivered the same to Faqir Muhammad constable for their onward transmission to the office of Forensic Science Laboratory Lahore appeared as PW-6. Faqir Muhammad Constable No, 10 who delivered the aforesaid parcels to the offices of Chemical Examiner and Forensic Science Laboratory Lahore appeared as PW-7 khan Ameer SI who is a witness of recovery of 7-MM rifle and live cartridges P-6/1-4 taken into possession by the Investigating Officer vide memo Ex. PH appeared as PW-8.
Mohri Khan SI/Investigating Officer appeared as PW-9. He stated that on 12.5.1996 he recorded FIR Ex. PA on the statement of Mst. Bakhat Bhari complainant. He proceeded to the place of occurrence, inspected the dead body of Mst. Nawab Bibi, prepared its injury statement Ex. PC and inquest report Ex. PD. He entrusted the dead body of the deceased to Muhammad Tufail Constable No, 606 for escorting the same to Civil Hospital Kamalia for autopsy. He took into possessed blood- stained earth and empty cartridges vide memo Ex. PB, prepared site-plan Ex. PI, recorded statements of Haq Nawaz and Noor PWs under Section 161 Cr.P.C. He collected last worn clothes of the deceased vide memo Ex.PF and completed the investigation. Learned APP after tendering in evidence reports of Chemical Examiner Ex. PJ, Serologist Ex. PK and that of Forensic Science Laboratory Ex PL closed the case for prosecution.
3. After the close of the prosecution evidence, statement of the accused under Section 342 Cr.P.C. was recorded and in answer to a question "why this case against you and why the PWs have deposed against you he deposed that he wanted that Mst. Nawab Bibi deceased should perform conjugal rights with him. Similarly Mst. Nawab Bibi deceased was faithful to him and. wanted to join him. In fact her mother and brothers coerced her to demand divorce from him but she refused to accede to their wishes. At the fateful time she was murdered by her brother Zafar as she insisted to join him and live with him as his wife. He neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor produced any defence evidence. The learned trial Court after hearing the learned A.P.P. and the defence counsel convicted and sentenced the appellant in the terms stated above through impugned judgment.
4. Sardar Muhammad Ramzan learned counsel for the appellant contends that prosecution failed to prove case against him beyond reasonable doubt, prosecution evidence consists of interested witnesses and without corroboration is not sufficient to convict him on the capital charge.
Deceased was faithful to him and wanted to appellant. Her mother and brothers pressed her to demand divorce from him but she refused to accede to their wishes. She was adamant to come in the house of the appellant and on her refusal to accept the demand of complainant, her brother killed her. He further argued that appellant is wali of the deceased, therefore, capital sentence could not be awarded to him in view of Section 308 PPC. He referred Khaliq-uz-Zaman v. Supreme Appellate Court Lahore and 4 others (PLD 1994 Supreme Court 885) in support of his contention.
5. Learned counsel for the State has supported the impugned judgment.
6. Heard. Record perused. We'have given 'aur anxious consideration to the contentions raised by the learned counsel for the appellant and gone through the entire evidence with his assistance.
The occurrence took place on 12.5.1998 at 4.00 p.m. in the presence of Mst. Bakht Bhari complainant PW-1. She was sitting with Haq Nawaz and Noor Ahmad in the Courtyard of her house, her daughter Mst. Nawab Bibi deceased was grazing buffaloes near the house. All of a sudden Zafar appellant emerged there, started firing with 7-MM rifle at the deceased which hit her on her left upper arm.
His second shot hit her on the left back of her trunk. Haq Nawab ,PW-2 and Noor Ahmad (given up PW) witnessed the occurrence. Mst. Nawab Bibi after receiving fire-arm injuries fell on the ground and succumbed to the injuries. Accused brandishing rifle fled away from the place of occurrence.
PW-1 has reiterated version set up in the FIR. She was cross-examined by the defence at length but nothing favourable could be achieved. Haq. Nawaz PW-2 corroborated her testimony. The prosecution evidence is supported by the motive. Deceased was forced to live in the house of her parents. She was given in marriage in exchange and the sister of accused Mst. Rajan Bibi was divorced by son of the complainant. Accused did not divorce her and was insisting to take her back to his house. Complainant refused to accede to his desire and on account of said grudge the complainant's daughter was killed by the him. No doubt PW-1 is mother and PW-2 is brother of the deceased but their evidence cannot be disbelieved on account of being closely related to the deceased. They are natural witnesses of the occurrence. The place of occurrence is not disputed.
Haq Nawaz and Mst. Bakht Bhari were in the house at the time of incident. Their evidence is corroborated by motive and medical evidence furnished by Dr. Abdul Rauf PW-3. The post-mortem of the deceased was conducted by PW-3 on 13.5.1998. He found lacerated wound of 30 cm x 10 cm on the lateral side of left upper arm with all muscles clearly seen. A contusion 7 cm x 2 cm on the right cheek. Multiple contusion 4 cm x 4 cm x 4 cm on right side of the neck. All the injuries were caused by fire-arm weapon and ante mortem. In his opinion the cause of death was due to hemorrhage and shock and the injuries suffered by her including fracture of L-1 and L-2. Separation of liver and right lung was sufficient to cause death in the usual course of nature.
7. Ocular account, medical evidence and motive set up by the prosecution is further corroborated by the recoveries of rifle P-5 which was sent to Forensic Science Laboratory and wedded with the crime empties recovered from the place of occurrence. The prosecution has proved its case beyond any shadow of doubt against the accused. We are of the considered view that the trial Court has correctly assessed the evidence while convicting the accused.
8. Appellant is husband of deceased and has killed his wife. The Supreme Appellate Bench in the case of Khaliq-uz-Zaman (PLD 1994 Supreme Court 885) set aside the sentence of death and remanded the case holding that the deceased was the wife of offender and her daughter, namely, Ameena was horn out of the wedlock, she is alive and she is wali of the deceased and direct descendant of the offender. Offender could not be sentenced to death as Qisas under Section 302(a) PPC whereas the provisions of Section 306(c) PPC laid down that Qatal-e-amad committed by the husband of his wife leaving behind child/children is not liable to Qisas and the law has specifically provided punishment for Qatal-e-amad not liable to Qisas under Section 308 PPC which does not provide death penalty. By setting aside the conviction, the case was remanded.
9. The aforesaid judgment was reviewed by the Honourable' Supreme Court in Faqir Ullah v. Khaliq- uz-Zaman and others (1999 SCM R 2203) on the petition of the complainant and the order was set aside restoring the death sentence awarded by the learned trial Court. The confusion of law has recently been removed by the Honourable Supreme Court in its judgment Muhammad Akram v.
The State (2003 SCM R 855). The relevant observations at page 859 are as under:- The next contention of the learned counsel for the petitioner related to the quantum of sentence.
According to the learned counsel petitioner being Wali of the deceased would be entitled to the benefit of Section 308 PPC, therefore, the conviction and sentence of the petitioner under Section 302(b) PPC was illegal. In the alternative, learned counsel argued that in any case the immediate cause of occurrence being not known, it would not be a case of extreme penalty. The first contention of the learned counsel relating to the application of Section 308 PPC by virtue of Section 306 PPC is without any substance, Sections 306, 307 and 308 PPC would only attract in the cases of Qatl-i-Amd which are liable to Qisas under Section 302(a) PPC and not in the cases in which sentence for Qatl-iAmd has been awarded as Tazir under Section 302(b) and (c) PPC. For the purpose of removing the confusion and misconception of law on the subject the above provision must he understood in the true spirit. Section 306 PPC provides that Qatl-i-Amd shall be liable to Qisas in certain cases mentioned therein and thus it is clear that in such cases the punishment of Qisas will remain inoperative but there is no such exception in a case of Qatl-i-Amd punishable as Tazir. Under Section 307 PPC the sentence of Qisas for Qatl-i-Amd cannot be enforced in the cases referred therein and therefore, the exceptions mentioned in Sections 306 and 307 PPC are confined only to the cases liable to Qisas and not Tazir. Under Section 308 PPC it is provided that where an offender guilty of Qatl-i-Amd is not liable to Qisas in terms of Section 306 PPC, the sentence of Qisas will not be enforced against him as provided under Section 307 PPC, and he shall be liable to Diyat and may also be punished with imprisonment which may extend to a term of 14 years as Tazir. The above provision of law can be made applicable only if the essential conditions contained therein are available in a case which is liable to Qisas and not in the cases of Qatl-i-Amd as Tazir.
The petitioner was tried for the charge of Qatl-i-Amd under Section 302(b) PPC and was convicted and sentenced to death as Tazir, therefore, he would not be entitled to the benefit of Section 308 PPC and was rightly punished under Section 302(b) PPC. It is not permissible to extend the benefit of provisions of Section 308 PPC in the cases of Qatl-iAmd which are punishable under Sections 302(b) and (c) PPC as Tazir and therefore, the extension of such benefit to cases falling under Sections 302(a) and 302(b) PPC would amount to grant the licence of killing of innocent persons by their Walies.
10. The contention of the learned counsel for the appellant that he killed his own wife and being his Wali, the capital sentence could not be awarded per force of Section 307 read with Section 308 PPC has been answered by the Honorable Supreme Court in the afore-referred judgment. Appellant was convicted under Section 302(b) and not 302(a) PPC. Section 307 read with Section 308 PPC could only apply in a conviction recorded under Section 302(a) PPC. The accused having been convicted under Tazir he was awarded normal sentence of death for murder of his wife. Plea of appellant for conversion of his death sentence into life imprisonment for the reasons stated above has no force. He brutally killed his wife by firing twice in a broad day light near her house in presence of her mother and brother. No leniency can be shown to him so far as the sentence is concerned. The appeal has no merit and is dismissed: The murder reference is answered in the affirmative.