ZAFAR IQBAL Versus State
ALI ZIA BAJWA, J.--- Zafar Iqbal son of Nazar Hussain, aged 40/50 years, caste Jhatta, resident of Chak No.92/10-R, Tehsil Kabirwala, District Khanewal, appellant, was involved in case FIR No.147/2010, dated 23.06.2010, offence under Sections 302, 201, P.P.C., registered with Police Station Abdul Hakeem and was tried by learned Additional Sessions Judge Kabirwala. The learned trial court seized with the matter in terms of judgment dated 18.02.2013 convicted and sentenced the appellant as under:-
> Under Section 308, P.P.C. to undergo imprisonment for fifteen years Rigorous imprisonment as Tazir. He is also held liable to pay Diyai amounting to Rs.1094816/- and he will remain in jail till the payment of Diyat.
> Under Section 201, P.P.C. to undergo imprisonment for five years and fine of Rs.10000/- and in case of non-payment of fine, he will further suffer imprisonment for six months R.I.
> The appellant was given benefit of section 382-B, Cr.P.C. and both the sentences shall run concurrently.
2. The appellant has assailed his conviction and sentence through filing Crl. Appeal No.69-J/2013.
3. I have, straightaway, noticed that in this case, the appellant was convicted under section 308, P.P.C. whereas, it is, by now a trite law that conviction under section 308, P.P.C. can only be awarded in a case in which proof of qatl-i-amd liable to Qisas as provided under section 304, P.P.C. is available but the conviction cannot be passed as Qisas due to the reasons provided in sections 306 and 307, P.P.C. In the case in hand, sufficient proof of qatl-i-amd liable to Qisas is not available on record and the conviction was to be passed as Ta'zir, and where the conviction can only be passed as Ta'zir and not as Qisas, the provisions of sections 306, 307 and 308, P.P.C. cannot be applied.
4. Perusal of record available on file reveals that the learned trial Court held Zafar Iqbal appellant guilty of the commission of offence of murder of his wife Mst. Shamim Bibi but he was convicted under section 308, P.P.C. and section 201, P.P.C. Learned trial misconceived and misconstrued the applicability of section 308, P.P.C., which can only be invoked in cases of Qisas. The learned trial Court relied upon the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 wherein it was held that the provision of section 308, P.P.C. would automatically be attracted as the appellant has children, so he was awarded punishment under section 308, P.P.C. It is noticed that the Khalil-uz-Zaman's Case Supra was reviewed and reversed by a 5-member Bench of august Supreme Court of Pakistan later on in the case of Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 and the conviction and sentence of the offender recorded by the trial court under section 302(b), P.P.C. were restored. It was clearly held that the said case was not a case of Qisas and, therefore, the punishment mentioned in section 308, P.P.C. was not attracted or applicable to that case. In the case of Zahid Rehman v. The State PLD 2015 SC 77 the august Supreme Court held in Para No. 8 as under:-
"The punishment for Qatl-i-amd as qisas in the command of Holy Qur'an is prescribed in section 302(a), P.P.C. whereas the sentence of death as tazir is provided under section 302(b) and combined study of the provisions of law referred above, would clearly show that section 308, P.P.C. has limited scope to the extent of cases falling within the ambit of sections 306, P.P.C. and 307, P.P.C. in which either an offender of Qatl-i-amd is not liable to qisas or the punishment of qisas is not enforceable under law. The punishment of qisas is different to the punishment of tazir and the two kinds of punishments cannot be mixed together for the purpose of sections 306 and 307, P.P.C. to attract the provisions of section 308, P.P.C. The punishment of death for Qatl-i-amd liable to qisas as provided under section 302(a), P.P.C. can only be awarded if the evidence in terms of section 304, P.P.C. is available and in a case of Qatl-i-amd in which such evidence is not available, the Court may, having regard to the facts and circumstances of the case, convict an offender of Qatl-i-amd under section 302(b), P.P.C. and award him the sentence of death as tazir. In a case of Qatl-i-amd in which the offender is liable to qisas but by virtue of prohibition contained in section 306, P.P.C. he cannot be awarded punishment of death under section 302(a), P.P.C as qisas or the punishment of qisas is not enforceable under section 307(c), P.P.C. he shall be liable to the punishment of diyat under section 308, P.P.C. and may also be awarded the punishment of imprisonment as provided therein but in a case in which the offender is awarded punishment under section 302(b), P.P.C. as tazir, the provision of section 308, P.P.C. cannot be pressed into service for the purpose of punishment"
5. In view of what has been discussed above, the impugned judgment dated 18-02-2013 passed by the learned Additional Sessions Judge, Kabirwala is set aside and the matter is remanded back to the learned trial court with the direction to rewrite the judgment after hearing both the parties within four weeks after receipt of this judgment, strictly in accordance with law and while giving convincing and elaborative reasoning, which satisfy the judicial conscious in the interest of safe administration of criminal justice. It is, however, made clear that till re-writing the judgment, the trial of the case in hand shall be deemed pending before the learned trial court. During this period, the appellant shall be treated as under trial prisoner, who shall be summoned from jail to join the trial. Office is directed to transmit the relevant record to the learned trial court forthwith. Resultantly, Criminal Appeal No. 69-J of 2013 is disposed off and the matter is remanded back to the learned trial in the above terms.
6. Case remanded.
JK/Z-16/L Case remanded.