' RAJA MUHAMMAD SABIR, J.Haji alias Zafar was convicted by. The learned Additional Sessions Judge, Toba Tek Singh under section 302(b), P.P.C. 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 of 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 F.I.R. Exh.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 Haq Nawaz and son-in-law Noor Ahmad were sifting in the courtyard of their house. Mst.
Nawab Bibi deceased aged about 19/20 years was grazing the buffaloes 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 P.Ws 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 Shari 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 P.W.1 and reiterated the story of the F.I.R.
Haq Nawaz appeared as P.W.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 P.W.3 and stated that Muhammad Tufail constable delivered to him injury statement Exh. PC and inquest report Exh.PD which bears his Signatures alongwith endorsement Exh.PC/1. He found the following injuries on her person- Co A lacerated wound 30 c.m. x 10 c.m. On the lateral side of left upper arm with all muscles clearly, seen.
(2) A contusion 7 c.m. x 2 c m. On the right cheek.
' Multiple contusion 4 c.m. x 4 c.m. On the right side of neck.
' An abrasion 2 c.m. x 5 c.m. Above the right shoulder.
' A lacerated 1 c.m. x 1 c.m. Entrance wound to the right of right breast.
' A lacerated 1 c.m. x 1 c.m. Entrance wound to the left of back of trunk.
' Left index finger was anteriorly and laterally black.
' A lacerated exit wound on the right side of trunk measuring 2 c.m. x 2.5 c.m.
' In the opinion of the doctor death df 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. Exh. PE is the correct carbon copy of postmortem report.
' Muhammad Tufail constable No.609 who escorted the dead body of the deceased to the mortuary for autopsy appeared as P.W.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 Exh. PF . Muhammad ihsaque Revenue Patwari who prepared site plant Exh PG and its duplicate Exh.PG/l appeared as P .W .5 .
' Muhammad Quresh, M.H.C. No.603 who kept the parcels of bloodstained 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 P.W.6. Faqir Muhammad constable No.10 who delivered the aforesaid parcels to the offices of Chemical Examiner and Forensic Science Laboratory Lahore appeared as P.W.7. Khan Ameer S.-I. 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. Exh.PH appeared'as P.W.B.
' Mohri Khan S.-I./Investigating Officer appeared as P.W.9. He stated on 12-5-1996 he recorded F.I.R Exh.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.P.0 and inquest report Exh.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 possession blood- stained earth and empty cartridges vide memo. Exh.PB, prepared site-plan Exh.PI, recorded statements of Haq Nawaz and Noor P.Ws under section 161, Cr.P.C. He collected last worn clothes of the deceased vide memo. Exh.PF and completed the investigation. Learned APP after tendering in evidence reportS of Chemical Examiner Exh.PJ, Serologist Ex.PK and that of Forensic Science Laboratory Exh.PL closed the case for prosecution.
' 3-A.. 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 P.Ws 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 Rarnzan 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 live with 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, P.P.C. 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 our 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 P.W.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 he left upper arm. His second shot hit her on the left back of her trunk. Haw Nawab P.W.2 and Noor Ahmad (given up P.W.) 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, P.W.1 has reiterated version set up in the F.I.R. She was cross-examined by the defence at length but nothing favourable could be achieved. Haq Nawaz P.W.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 him. No doubt P.W.1 is mother and P.W.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 .W.3. The post-mortem of the deceased was conducted by P.W.3 on 13-5-1998. He found lacerated wound of 30 c.m. x 10 c.m. On the lateral side of left upper arm with all muscles clearly seen. A contusion 7 c.m. x 2 c.m.
On the right cheek. Multiple contusion 4 c.m. x 4 c.m. x 4 c.m. 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. Appellate is husband of deceased and has killed his wife. The Supreme Appellate Bench in the case of Khaliq-uzZaman (PLD 1994 Supreme Court- 885) set aside sentence of death and remanded the case holding that the deceased was the wife of offender and her daughter, namely, Ameena was born 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), P.P.C. Whereas the provisions of section 306(c), P.P.C. Laid down that Qatl-e-Amn zomuutted by the husband of his wife leaving behind child/children is not liable to Qisas and the law has specifically provided punishment for Qatl-e-Amd not liable to Qisas under section 308, P.P.C. 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 benefit of section 308, P.P.C., therefore, the conviction and sentence of the petitioner under section 302(b), P.P.C. 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, P.P.C. By virtue of section 306, P.P.C. Is without any substance, sections 306, 307 and 308, P.P.C. Would only attract in the cases of Qatl-i- Amd which are liable to Qisas under section 302(a), P.P.C. And not in.The cases in which sentence for Qatl-i-Amd as been awarded as Tazir under section 302(b) and (c), P.P.C. For the purpose of removing the confusion and misconception of law on the subject the above provision must be understood in the true spirit. Section 306, P.P.C. 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, P.P.C., 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, P.P.C. Are confined only to the cases liable to Qisas. And not Tazir. Under section 308, P.P.C. It is provided that where an offender guilty of Qatl-i-Amd is not liable to Qisas in terms of section 306, P.P.C., the sentence of Qisas will not be enforced against him as provided under section 307, P.P.C., 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 Ta'zir. The petitioner was tried for the charge of Qatl-i-Amd under section 302(b), P.P.C. And was convicted and sentenced to death as Ta'zir, therefore, he would not be entitled to the benefit of section 308, P.P.C. And was rightly punished under section 302(b), P.P.C., it is not permissible to extend the benefit of provisions of section 308, P.P.C. In the cases of Qatl-i-Amd which are punishable under section 302(b) and (c), P.P.C. As Ta'zir and therefore, the extension of such benefit to cases falling under sections 302(a) and 302(b), P.P.C. Would amount to grant the licence of killing of innocent persons by their Walis."
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, P.P.C. Has been answered by the Honourable Supreme Court in the afore-referred judgment.
Appellant was convicted under section 302(b) and not 302(a), P.P.C. Section 307 read with section 308, P.P.C. Could only apply in a conviction recorded under section 302(a), P.P.C. The accused having been convicted under Tazir he was awarded nomal 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.