UMAR ZAHID alias KHAN vs STATE

Umar Zahid appellant was tried by the learned Sessions Judge/Zilla Qazi Malakand at Batkhela for committing an offence punishable under Sections 302/201/202/203/109/34 PPC read with Section 11/16 Offence of Zina (Enforcement of Hadood) Ordinance, 1979 vide FIR No, 18 dated 3.4.2007 registered at P.S. Aala Dhand Malakand Agency. The legal heirs of the deceased who happened to be daughter of the appellant have waived of their right of Qisas and have also compounded the offence. The learned trial Court vide impugned judgment dated 25.10.2007 acquitted the appellant under Section 302(c) PPC but he was awarded punishment as Tazir under Section 311 PPC to undergo 12 years R.I. He was also convicted under Section 201 PPC and sentenced him three years R.I. with a fine of Rs, 10,000/-or in default to further undergo three months S.I. He was further convicted under Section 202 PPC and sentenced to imprisonment for three months SI. All the sentences were ordered to run concurrently. The appellant was also granted acquittal under Sections 203/109 PPC read with Section 11/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.

2. Apart from the appellant, Azeem Khan, Samiullah and Jamil Khan were also tried as his co- accused in the same trial and were granted acquittal. Accused Zaitullah, Qadar Wahid and Bakht Zahid were tried in absentia under Section 512 Cr.P.C., declared Proclaimed Offenders and perpetual warrants of arrest were issued against them with the direction to the DPP to enter their names in the register of Proclaimed Offenders.

3. I have heard the learned counsel for the appellant who contended that Section 311 PPC though amended through Criminal Law Amendment Act, 2004 (Act No, 1 of 2004) the not extended to PATA in terms of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973. Under un-amended Section 311 PPC the Court possess the powers to award imprisonment upto fourteen years as Tazir when the right of Qisas has been waived of and the offence is compounded by the legal heirs of the deceased.

4. Undisputedly the legal heirs of the deceased have compounded the matter and have waived of their right of Qisas. The statements of major legal heirs of the deceased were recorded by the trial Court wherein they affirmed the factum of composition and waiving of the right of qisas. The shares of the minors were deposited in Court in the shape of National Saving Certificates.

5. It is evident from the record that the occurrence took place on 25.3.2007 and the report was lodged on 3.4.2007. The case of the prosecution is that on the day of occurrence there was a jirga between the complainant party and one Umar Zahid who allegedly took Mst. Shabnum deceased from her house in the dark hours. The deceased was buried without making any report about her un-natural death and it was subsequently discovered in an inquiry under Section 174 Cr.P.C. that the death of the deceased had occurred due to hanging. After ' exhumation of the dead body of the deceased some pieces of her body which includes nail, heirs and skin alongwith earth from the graveyard were taken into possession through recovery memo Ex.PW6/1. Those articles were sent to Laboratory where from report Ex.PZ was received certifying that the deceased has died due to poising. However, no poison was deducted in the articles sent for examination. It appears to be quite unreasonable that a man who is holding a Jirga with the opposite party would commit the murder of his daughter in side the house. Alternatively it is possible that the deceased may have used poison to commit suicide for honour of the family.

6. The appellant was not put any question in his statement recorded under Section 342, Cr.P.C. regarding "Fasad Fil Arz" and in such circumstances this Court in its judgment in a case 'Nazar Ali and another Vs. The State" reported in (PLD 1992 Peshawar 176) had granted acquittal to a convict under Section 311 PPC wherein it was held as follows: "Besides, even the facts and circumstances of the case lurking in the mind of the trial Court were not put to the appellants for their explanation and still those so-called facts and circumstances have been used by the trial Court in recording the appellants' conviction under Section 311, PPC.

Section 342, Cr.P.C. places the Court under obligation to provide opportunity to a convict to explain the prosecution evidence which is going to be used to convict him. Failure to question an accused about the circumstances against him amounts to total failure of justice and the trial is vitiated".

7. In the aforesaid facts and circumstances of the case, I accept this appeal, set aside the conviction and sentence imposed upon the appellant Umar Zahid alias Khan by the learned trial Court through the impugned judgment dated 25.10.2007 and acquit him of the charges levelled against him. He be set at liberty forthwith if his custody is not required in any other case.

The above are the reasons of my short order announced on 12.09.2008.