SURAT KHAN Versus STATE
This judgment will dispose of Criminal Appeal No.50‑J of 1998 filed by Surat Khan from Jail, who was convicted and sentenced by learned Additional Sessions Judge‑I, Mianwali for the murder of his real brother Sardar Khan on 3‑9‑1998 to undergo life imprisonment under section 309, P.P.C., with a further direction to pay Rs.25,000 as compensation. Benefit of section 382‑B, Cr.P.C., was also granted to the appellant.
2. This is a Jail appeal. I appoint Mr. Khalid Naveed Dar, Advocate to defend the appellant at State expense.
3. The occurrence in this case took place on 15‑7‑1996 at 9‑30 a.m. near the Dera of Abdul Ghafoor complainant father of the appellant and also the deceased Sardar Khan situated in Village Ganda, which falls within the area of Police Station, Kamar Mashani, while the matter was reported to the police on the same day by Abdul Ghafoor complainant at 12‑00 noon. The distance of place of occurrence from the police station is 20 K.Ms. away.
4. One Sardar Khan son of Abdul Ghafoor Khan was murdered in the area of Village Ganda, Police Station, Kamar Mashani, on 15‑7‑1996, at about 9‑30 a.m. Abdul Ghafoor Khan the father of the deceased made a report at Police Station Kamar Mashani on the same day regarding this occurrence at 2‑00 p.m. According to the complainant, he had five sons namely Surat Khan, Sattar Khan, Zulfiqar Khan, Sardar Khan and Mushtaq Khan. Out of these five sons, Surat Khan, Sattar Khan and Zulfiqar Khan were married and were living in separate houses. Mushtaq Khan and Sardar Khan his sons were living with him. On 15‑7‑1996, the complainant, his wife Mst. Ayesha Bibi and his son Sardar Khan were present in his house, when in the morning time, Surat Khan his son came there and he demanded his share of landed property owned by the complainant. This resulted into exchange of abuses. Sardar Khan intervened and also asked Surat Khan not to insult his father, but Surat Khan did not desist, as a result of which Sardar Khan inflicted fist and kick blows to Surat Khan. Thereafter, Surat Khan left the house of the complainant by passing threats that he would teach a lesson to Sardar Khan for his insult. At about 9‑30 a.m., on the same day, the complainant alongwith his son Sardar Khan, Abaid Ullah and Ahmad Khan were grazing their animals towards East of their Dera at a distance of about 100 Karams on the lands of Muhammad Sadiq son of Mehr Khan, when suddenly Surat Khan, while armed with rifle emerged there and raised Lalkara and fired three rifle shots one after the other on Sardar Khan, which hit Sardar Khan on his right buttock and right fore‑arm and he fell down and the accused ran away. The occurrence was also witnessed by Abaid Ullah and Ahmad Khan alongwith the complainant. The cause of grievance as disclosed in the F.I.R., is the previous quarrel between the deceased and the accused in the morning time in the house of the complainant. On the basis of this report, formal F.I.R. Exh.P.B. was drafted by Muhammad Aslam, S.I./S.H.O., Police Station, Kamar Mashani. The accused was then arrested. The police during investigation concluded Surat Khan accused to be guilty of the offence and was challaned and was sent up to the Trial Court to face trial.
5. The Investigating Officer, thereafter proceeded to the spot, took into possession blood‑stained earth vide memo. Exh.P.C. and after completing other formalities, he arrested the appellant on 3‑8‑1996. Appellant got recovered rifle .303, P.3 from his house alongwith four alive bullets P.4/1‑4, which were taken into possession vide memo. Exh.P.H.
6. Prosecution in order to prove its case produced 11 witnesses in all. Thereafter, the statement of the appellant was recorded under section 342, Cr.P.C. Two eye‑witnesses were produced by the prosecution namely Abdul Ghafoor P.W.2 father of the deceased and the appellant and Abaid Ullah, P.W.3 maternal uncle of the deceased and the appellant, while Ahmad Khan was given up as unnecessary. Learned counsel for the appellant after going through the prosecution evidence submits that appellant has been falsely implicated in this case, that infact, it was an unwitnessed occurrence. He further submits that murder of the deceased was committed by Ahmad Khan and after concocting a false story implicating the appellant in this case. He also submits that father of the appellant had waived his right of "Qisas" and forgiven him in the name of God Almighty but her mother Mst. Ayesha Bibi did not waive her right of "Qisas". Lastly, he submits that appellant could not have been convicted under section 309, P.P.C., under section 308, P.P.C., and this is an illegality which has been committed by the learned Trial Court.
7. On the other hand, learned counsel for the State submits that appellant is the only accused in this case, that there is no question of substitution, that eye‑witnesses produced by the prosecution are close relation of the deceased and the appellant, that ocular account is corroborated by medical evidence, motive and recovery of rifle .303 from the appellant. He supports the judgment of learned Trial Court.
8. I have heard the learned counsel for the parties and have also gone through the prosecution recorded by the learned Trial Court with their assistance. The two eye witnesses namely Abdul Ghafoor and Abaid Ullah are father and maternal uncle of the appellant and the deceased examined as P.W.2 and P.W.3 respectively. Mst. Ayesha Bibi mother of the appellant was examined as P.W.4 and she had narrated the motive part of the occurrence. There is no reason to disbelieve these witnesses. The occurrence took place in broad daylight. Appellant was specifically named in the F.I.R. he was armed with rifle .303 and caused three injuries on the person of the deceased Sardar Khan. Learned Trial Court was wrong in convicting the appellant under section 309, P.P.C., because the case of the appellant falls under section 306‑C, P.P.C., and section 307‑B, P.P.C., which are reproduced below;
Section 306. Q atl‑i‑Amd not liable to Qisas. ‑‑‑ Qatl‑i‑Amd shall not be liable to Qisas in the following cases namely:
(a) When an offender is a 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 as offender causes death of his child or grandchild, how low‑so -ever: and
(c) When any Wali of the victim is a direct descendant, how low‑so‑ever of the offender.
Section 307:
(1) Cases in which Qisas for Qatl‑i‑Amd shall not be enforced Qisas for 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;
(2) To satisfy itself that the Wali has waived the right of Qisas under section 309 or compounded the right of Qisas under section 310 voluntarily and without duress the Court shall take down the statement of the Wali and such other persons as it may deem necessary on oath and record an opinion that it is satisfied that the waiver or, as the case may be, the composition, was voluntary and not the result of any duress.
9. The perusal of these sections of Penal Code show that no conviction under section 309, P.P.C., could have been awarded to the appellant and the conviction if could have been awarded under section 308, P.P.C., which reads as under:‑‑
Section 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 or insane; 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 realise the consequences of his act, he may also be punished with imprisonment or 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.
10. The bare perusal of section 308, P.P.C., would show that the maximum sentence which can be awarded to the appellant is 14 years as "Ta'zir" alongwith "Diyat". In these circumstances, I believe the prosecution evidence but set aside the conviction and sentence of the appellant under section 309, P.P.C., and convert the same under section 308, P.P.C., and appellant is awarded 14 years R.I. as "Ta'zir" instead of imprisonment. He is also directed to pay Rs.2,30,000 (two lac and thirty thousands) as "Diyat" amount to the legal heirs of the deceased except his father, who has waived his right of "Qisas". Benefit of section 382‑B, Cr.P.C., is also maintained. The amount of compensation awarded to the appellant by the learned Trial Court is set aside or there is no such provision under section 308, P.P.C. With these observations, this appeal stands disposed of.
Q.M.H./M.A.K./S‑378/L Order accordingly.