IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.414 of 2011

Confirmation Case No.13 of 2011

Presents:

Mr. Justice Sajjad Ali Shah

Mr. Justice Naimatullah Phulpoto

Appellant: Deen Muhammad Memon through Mr. Muhammad Farooq, Advocate

Respondent: The State through Mr. Khadim Hussain Khuharo, Deputy Prosecutor General Sindh

Date of Hearing 26.02.2014

J U D G M E N T

NAIMATULLAH PHULPOTO, J.--- Appellant Deen Muhammad Memon was tried by learned Additional Sessions Judge, Mehar, in Sessions Case No.386 of 2005 for offence punishable under Section 302 PPC, vide Crime No.156/2005, registered at Police Station Mehar, for committing Qatl-e-Amad of his wife Mst. Tanveer Sangi by means of hammer and iron rod injuries. After full dressed trial, learned trial Court, vide Judgment dated 05.01.2010, convicted the appellant Deen Muhammad under Section 302 PPC (clause not specified) and sentenced to death as Tazir. Appellant was ordered to pay fine of Rs.100,000/-, to be paid to the minor children of the deceased. Reference was made by trial Court to this Court for confirmation of death sentence. Appellant has preferred this appeal against his conviction and sentence. By this judgment we intend to dispose of aforesaid appeal as well as Reference for Confirmation of death Sentence.

2. Brief facts of the prosecution as disclosed in the FIR are that on 05.11.2005, one Liaquat Ali Sangi lodged FIR at P.S. Mehar, alleging therein that on 05.11.2005, complainant Liaquat Ali, his nephew PW Muhammad Ismail and cousins PWs Tahir and Khurram went to the house of his sister, namely, Mst. Tanveer, situated at Mehar. It was about 01:00 p.m. when the complainant party reached at the door of Mst. Tanveer, they heard her cries and entered into her house and saw Mst. Tanveer was lying on the bed while accused Deen Muhamamd son of Ali Bux Memon, who was serving as wireless operator, was causing her hammer and iron rod blows at her head. It is alleged that the accused while seeing the complainant party succeeded in running away along with hammer. Complainant party did not chase the accused as he was armed. Thereafter, complainant party saw that Mst. Tanveer had received injuries at her head and her brain material was out and she succumbed to the injuries. Complainant Liaquat, by leaving the PWs over the dead body of his sister, went to the police station where he lodged FIR at Police Station Mehar, it was recorded on 05.11.2005, vide Crime No.156/2005 under Section 302 PPC.

3. Muhammad Bux ASI was entrusted a copy of above FIR on 05.11.2005 for conducting investigation. ASI visited the place of wardat it was shown to him by complainant Liaquat. He inspected it in presence of mashirs. He found the dead body lying on the bed in the house of the accused. Such mashirnama was prepared. On 7.11.2007 ASI arrested accused Deen Muhammad from Qasai Mohalla in presence of mashirs Abdul Sami and Muhammad Yousuf. During interrogation, appellant voluntarily prepared to produce hammer and iron rod used by him in the commission of offence and led the police party and produced hammer and iron rod, the same were secured by the ASI in presence of same mashirs.

4. After usual investigation, challan was submitted against the accused under section 302 PPC. Case was sent up to the Court of Sessions, it was transferred to the Additional Sessions Judge Mehar for disposal according to law.

5. A formal charge against accused Deen Muhammad was framed under section 302 PPC at Exhbit-2. Appellants pleaded not guilty to charge and claimed to be tried. At the trial, prosecution examined the following witnesses:-

1. PW-1 Shamsuddin, Exhibit-4.

2. PW-2 Imam Bux, Exhibit-5

3. PW-3 Liaquat Ali, Exhibit-6

4. PW-4 Tahir, Exhibit-7

5. PW-5 Khurram, Exhibit-8

6. PW-6 Abdul Sami, Exhibit-9

7. PW-7 Muhammad Bux, Exhibit-10

8. PW-8 Siraj Ahmad, Exhibit-11

9. PW-9 Dr. Azra Ghyas Abro, Exhibit-12

6. Learned D.D.A. conducting the prosecution case, closed the prosecution side vide his Statement dated 09.10.2009 at Exhibit-13.

7. Statement of accused Deen Muhammad was recorded under section 342 Cr.PC at Exhibit-14, in which he has denied causing Qatl-e-Amad of his wife Mst. Tanveer. He has also denied that he had produced blood stained hammer and iron rod before police used by him for committing murder of his wife and stated that crime weapons have been foisted upon him. Accused has stated that PWs are interested and related interse. Accused examined himself on Oath in disproof of prosecution allegations. Accused has also examined in his defence DWs Meeran son of Haji Ali Nawaz and Abdul Ghani son of Muhammad Bachal. On the conclusion of the defence evidence, side was closed. After hearing the learned counsel for the parties, accused was convicted by trial Court and awarded death penalty as stated above.

8. Mr. Muhammad Farooq, learned advocate for the Appellant argued that prosecution story is highly unbelievable and unnatural. PWs are related inter se and chance witnesses. PWs have not disclosed sufficient cause of visiting the house of the deceased at the time of incident. He has further argued that motive was set up but it was not established at the trial. Medical evidence is contradictory to the ocular evidence. While elaborating the contention, it is argued that according to prosecution case, Appellant had caused a number of blows at the head of the deceased but as per postmortem report deceased has sustained a single injury at her head. It is also argued that blood stained iron and hammer were not sent to the Chemical Examiner for report as such crime weapons have been foisted upon the accused. Mr. Farooq lastly submitted that in case Court is not convinced by his submissions and believes the prosecution evidence, then death penalty as awarded by trial Court was not warranted in the law as deceased has left three minors and appellant is their father. In support of his contentions he relied upon the cases reported as Khalil-uz-Zaman vs. Supreme Appellate Court, Lahore and 4 others (PLD 1994 S.C 885) and Sh. Muhammad Aslam and another vs. Shaukat Ali alias Shauka and others (1997 SCMR 1307).

9. Mr. Khadim Hussain, assisted by the Advocate for the Complainant, argued that the incident had occurred on the second day of the Eid, brother(s) and close relative(s), as per custom and tradition, visit the house of sister(s) on such occasions. He has argued that PWs have disclosed sufficient cause of their presence at the house of the deceased at the time of incident. Learned D.P.G. argued that ocular evidence is corroborated by the medical evidence and there is no conflict in between ocular and medical evidence. He has submitted that blood stained hammer and iron rod were produced by the accused during investigation. As such ocular evidence is corroborated by medical evidence and recoveries. He has argued that the prosecution has proved its case against the accused but frankly stated that death penalty was not warranted in this case as deceased left three minors and the Appellant is the father of those children. He has also invited attention of this Court to Sessions 6, 7 and 8 PPC.

10. In order to appreciate the contentions of the learned counsel for the parties we have scanned the entire evidence brought on record by the prosecution as well as in defence.

11. As regards to unnatural death of deceased, PW Dr. Azra Ghyas Abro, Woman Medical Officer Mehar deposed that on 05.11.2005 she received a dead body of Mst. Tanveer Begum through SHO of P.S. Mehar for conducting postmortem examination and report. W.M.O. started postmortem examination at 04:30 p.m. and finished at 05:30 p.m. Rigor morits were absent. Postmortem lividity was not present. On external examination of deceased W.M.O. found the following injury:

1. Lacerated wound 12cm x 2cm into deep cranial cavity with clinical fracture of skull bone and protruded out brain matter on left fronto parietal region of skull.

On internal examination of deceased WMO found the following damages:

SKULL: Left forntal bone was fractured. Left parietal bone was fractured, whole carnial cavity was full of blood and manages on cut down brain matter was seen.

From the external as well as internal examination of deceased Mst. Tanveer Begum, Women Medical Officer was of the opinion that injuries were ante mortem in nature, caused by hard and blunt substances and death occurred due to severe hemorrhage and shock.

Postmortem report was produced at Exhibit-12/A.

12. Complainant Liaquat Ali has deposed that the incident took place on 05.11.2005, it was about 01:00 p.m. He is serving in Agriculture Department at Hyderabad. Mst. Tanveer is his sister, she was teacher at Fareedabad School. She was married to one Din Muhammad, they were residing at Mehar Qasai Mohallah. Out of wedlock, his sister has two sons and one daughter. His sister Tanveer had told that her husband Deen Muhammad was issuing threats of dire consequences even of her murder and wanted to contract second marriage. On several occasions, he advised to Deen Muhammad to mend ways but he denied. On the day of incident, he came from Hyderabad in order to meet his sister. His cousins, namely, Khurram, Tahir and Ismail also accompanied him. While they reached at outer door of the house of his sister, they heard cries of his sister. On cries, they went inside the house and found that accused Deen Muhammad was having hammer in his hand as well as one Iron rod. Accused Deen Muhammad caused Hammer blow to his sister and on seeing them he left away. Thereafter his sister died. Complainant while leaving the PWs over the dead body went to P.S. and lodged such FIR. In the cross-examination he has denied the suggestions that he had not witnessed the incident. He has also denied the suggestion that the Appellant had not committed the murder of his sister. He has also denied the suggestion that he was deposing falsely against the accused.

13. P.W. Tahir is also one of the eye witnesses of the incident. He deposed that complainant is his cousin. The incident took place on 05.11.2005. On the day of incident he along with his cousin/complainant Liaquat, his brother Khurram and nephew Muhammad Ismail proceeded from their house at Mehar to the house of deceased Mst. Tanveer, to meet her. At the outer door of the house they heard cries of his cousin Mst. Tanveer. On cries, they entered the house and found that accused Deen Muhammad was having hammer in his hand while Iron rod in his other hand. Accused Deen Muhammad was causing hammer blows to Mst. Tanveer on her head, on seeing them he ran away. They went over Mst. Tanveer and found that blood was oozing from her injuries and was lying dead. Complainant Liaquat Ali leaving him over the dead body went to report the matter to police. The incident took place at about 01:00 p.m. The injuries were sustained by Mst. Tanveer on left side of her head. The motive of the incident was that accused wanted to contract the second marriage and also accused was insisting her to handover property to accused. In the cross-examination he has denied the suggestions that he had not witnessed the incident. He has also denied the suggestion that the Appellant had not committed the murder of Mst. Tanveer. He has also denied the suggestion that the deceased had contracted marriage with the accused against their wishes of the complainant party. He has also denied the suggestion that complainant party caused murder of the deceased because they were not happy from such marriage.

14. PW Khurram is also one of the eye witnesses of the incident, he also supported the version of the complainant as well as of PW Tahir and also disclosed that the accused Deen Muhammad has committed Qatl-e-Amad of deceased Mst. Tanveer. He had witnessed the incident and narrated entire episode.

15. PW Abdul Sami was made mashir of place of incident, situated at Qasai Mohammad, Mehar, it was shown by the complainant to police, it was three rooms house. Police found dead body lying on the bed, police secured blood stained clothes viz. bed sheet and plows, such mashirnama was prepared in his presence and co-mashir was Muhammad Yousuf, he produced such mashirnama as Exhibit-9/A. Inquest report was also prepared by the police in presence of mashirs, he produced such mashirnama as Exhibit-9/B. Police also recovered blood stained clothes of deceased Mst. Tanveer under mashirnama, he produced the same as Exhibit-9/C. Accused was also arrested in presence of mashirs from street near the house of one Roshan Memon, such mashirnama was prepared, he produced the same as Exhibit-9/D. During investigation accused produced hammer and iron rod, the weapons of the offence form the graveyard of Rajab Shah beneath the Khabar trees. Such mashirnama was also prepared by the police, he produced the same as Exhibit-9/E. In his cross-examination he denied the suggestion that mashirnama of recovery was prepared at police station by the police. Mashir denied the suggestion that accused was not arrested in his presence.

16. PW ASI Muhammad Bux of PS Mehar was entrusted a copy of the FIR of Crime No.156 of 2005 for conducting the investigation. ASI proceeded to place of wardat which was shown to him by complainant Liaquat Ali, he found the dead body of Mst.Tanveer lying at the place of occurrence. He prepared inquest report and mashirnama of place of wardat in presence of mashirs. ASI arrested accused Din Mohammad from Kasai Mohalla on 07.11.2007 in presence of the mashirs Abdul Sami and Mohammad Yousuf at 0730 hours, conducted his personal search. Accused Din Mohammad during interrogation on 13.11.2005 led the police party and mashirs to place of recovery, it was graveyard, and produced hammer and iron rod. ASI secured the same and prepared such mashirnama and produced it at Ex. 9-E. ASI had also examined the P.Ws u/s 161 Cr.P.C. After completion of the investigation challan was submitted against the accused. In the cross examination I.O had replied that he had examined the witnesses at the place of incident and place of incident was situated inside the house of the deceased. ASI has replied that accused made no efforts to run away at the time of his arrest. I.O has replied that accused produced case property from the grave yard situated in Mehar Town. I.O has stated that case property was concealed in bushes/trees. He has also replied in cross examination that case property was sealed at the place of incident. However, he has denied the suggestion that all the papers were prepared at the police station.

17. PW P.C. Siraj Ahmad, who brought the dead body of Mst. Tanveer from hospital after postmortem examination, he handed over the same to the cousin of the deceased.

18. PW Imam Bux is Tapedar, who prepared the sketch of the place of incident, indicating locations, he produced the same as Exhibit-5/A. It was entire prosecution evidence.

19. Accused Deen Muhammad on oath has stated that he contracted marriage with deceased Tanveer Begum in the year of 1998. Complainant was happy with such marriage. On 05.11.2005, he was present with his friend Abdul Ghani at village Thorha at about 01:00 PM, he came to know that his wife has been murdered by some unknown persons. DW Abdul Ghani has stated that accused Deen Muhammad went to him in the year 2005 at 01:00 p.m., nephew of Deen Muhmmad came running and told that his wife has been murdered. DW Meeran has also stated that at about 09 years back he was present at the Otaq of Abdul Ghani where Deen Muhammad was also present where Deen Muhamamd came to know that his wife has been murdered.

20. Having considered the evidence from all corners, it is proved that in this case, eye witnesses of the incident are complainant and others, namely, Tahir, Khurram and Muhammad Ismail. Complainant has categorically stated that on the date of incident he along with his cousins was going to meet his sister, namely, Tanveer Begum a soon as they reached at the door of his sister they heard her cries and went into the house and saw that accused was causing her hammer and iron blows at her head. After sustaining such injuries, Mst. Tasveer succumbed to the injuries. Complainant made to sit the other PWs at the dead body of his sister and went to the police station to lodge the FIR against the accused. Other eye witnesses, namely, Tahir, Khurram and Muhammad Ismail, have also fully supported the case of the prosecution and stated that they had witnessed the incident and narrated entire episode and were subjected to lengthy cross-examination as discussed above. It is not uncommon that on Eid occasions, brothers and cousins, used to go their sister(s) in order to meet them, therefore, they cannot be termed as chance witnesses. Mere relationship of the eye witnesses with the deceased is also no ground to reject their testimony mainly for the reasons that it was old marriage. Accused was father of three children, we cannot understand as to why brother and cousins would falsely implicate the Appellant in the murder of sister. No motive for false implication or enmity of the PWs with the accused has been brought on record. Ocular evidence is corroborated by the medical evidence. Contention of learned defence counsel that a number of blows were caused by the accused to the deceased at head but according to the postmortem report deceased sustained only one blow. In the offences like the present one, generally no one counts the number of the blows. There is no major conflict between ocular and medical evidence. Moreover, ocular evidence is trustworthy, quite reliable, the same cannot be disbelieved. In the circumstances of the case ocular evidence is corroborated by the medical evidence that the deceased has died her unnatural death. The argument of the learned D.P.G. that mere statement of the doctor cannot discard the ocular account which was otherwise confidence-inspiring, having c intrinsic value and having come through an unimpeachable sources, has force. He has rightly relied upon cases of Ghulam Ullah and another v. The State and another 1996 SCMR 1887; Abdur Rehman v. The State 1998 SCMR 1778; Wahid v. State PLD 2002 SC 62; Muhammad Hanif v. The State PLD 1993 SC 895; Yaqoob Shah v. The State PLD 1976 SC 53. In Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484, Honourable Supreme Court of Pakistan, while dilating upon the point of contradiction between the medical evidence and the ocular account in an appeal against acquittal and while setting aside the acquittal of the respondents, at page 490, held as under:--

“The prosecution in proof of the charge against the respondents, relied upon the ocular account, medical evidence, motive of enmity and the recovery of knife which was used as weapon of offence. The two eye-witnesses namely Muhammad Riaz (P.W.9), real brother of deceased and Abdul Rauf (P.W.10) a relative, in their statements have narrated the full account of the occurrence in the manner in which it has been described in the F.I.R and deposed that deceased was caused injuries with fire-arm and knife. It would be seen that the deposition of the witness was seeking corroboration from the medical evidence to the extent of nature and seat of injuries and the presence of lacerated and incised wounds found on the person of the deceased, would suggest the use of fire-arm and sharp-edged weapon in the occurrence, therefore, the conflict of medical evidence with ocular account, if any, as pointed out by the High Court was only to the extent of statement of doctor according to which one shot was fired. The material contradictions and discrepancies in the evidence in a criminal case may create doubt in the prosecution case and if the eye-witnesses are inimical and interested, this doubt may lead to reasonable possibility of the witnesses being not truthful or an inference can be drawn that they by suppressing the truth, made a dishonest statement but it is settled proposition of law that mere relationship or enmity is not sufficient to discard the evidence of a natural witness or hold him not truthful and trustworthy. This is not an inflexible rule that in all circumstances, such contradictions and discrepancies in the evidence must be treated to be injurious to the credibility of a witness and his evidence must be excluded from consideration or he must be held not truthful witness rather the ultimate test of veracity of a witness is the inherent merit of his own statement....". (Emphasis supplied).

21. The Hon'ble Supreme Court in yet another case reported in Asim v. The State 2005 SCMR 417, while commenting on contradiction between ocular account and medical evidence, at page 421, held as under:--

"Assuming that if the medical evidence is contradictory to ocular evidence it would have no bearing on the prosecution case. Besides it medical evidence is always considered as confirmatory evidence and if there is contradiction in ocular and medical evidence, former will overweigh to latter. Muhammad Hanif v. The State PLD 1993 SC 895. It may also be borne in mind that in criminal case it is not the quantity but quality of evidence which matters. As it has been held in Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663. Under the circumstances of the case non-production of Fire-arms Expert Report in respect of crime empty and pistol will also have no reflection on the prosecution case because it otherwise stands proved against the petitioner”.

22. As regards to the motive of the Appellant for commission of offence, complainant in the FIR has stated that the appellant committed murder of his wife as relations were strained between spouse. Appellant wanted to have a second marriage to which deceased resisted. Complainant in his evidence has fully described the motive but it goes unchallenged and unrebutted in the cross-examination. We, therefore, hold that motive as set up by the prosecution has been proved at trial.

23. Defence plea appears to be an afterthought, it was not raised at initial stage. No suggestion was put to the prosecution witnesses that at the relevant time appellant was sitting with the DWs at their Otaq, trial Court has rightly disbelieved defence theory. Therefore, defence theory is out rightly rejected. Prosecution has proved its case against the accused beyond any shadow of doubt.

24. Close scrutiny of the evidence reflects that there is no material contradiction in the ocular and medical evidence. Assuming that if the medical evidence is contradictory to the ocular evidence to the extent of number of injuries sustained by the deceased it would have no bearing on the prosecution case for the reason that ocular evidence is confidence inspiring corroborated by motive and recover of crime weapons. Under the above stated circumstances, non-production of expert report in respect of crime weapons will have no adverse effect on the prosecution case because prosecution case otherwise has been proved by cogent evidence against the appellant and trial Court has rightly held the appellant guilty.

CONCLUSION

25. As regards to the contention of the learned defence counsel regarding death penalty awarded to the appellant under Section 302 (b) for the murder of his wife with reference to Section 306 and 308 PPC is concerned, we have examined such contention in the light of judgment of the Apex Court in the case of Shaikh Muhammad Aslam and Khalil-uz-Zaman (supra). In the instant case, having regard to the facts and circumstances of the case, the trial Court has awarded death penalty to the appellant under Section 302(b) PPC as Ta’zir but clause has not been specified. First we would like to examine correctness, legality and propriety of death sentence awarded by the trial Court to the appellant for committing the murder of his wife, leaving behind three minors. To appreciate such contention deeply, it would be appropriate to reproduce Sections 306 and 308 PPC:

306. Qatl-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 an offender causes death of his child or grandchild how lowsoever’ and

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 realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to twenty-five years as ta’zir.

Provided further that, where the qisas is not enforceable under clause (c) or 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 twenty-five years.

(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 twenty-five years as ta’zir.

26. There is cogent evidence against the appellant that QAatl-i-Amd has been committed by him of his wife, who left behind three minors, therefore, in the view of above referred legal position trial Court had no jurisdiction to convict the accused under section 302 PPC or impose death penalty on him. In so holding we are guided by the judgment of the Apex Court in the case of Khalil-uz-Zaman (supra) rightly referred to by the counsel for the appellant, relevant portion of the judgment reads as fol lows:-

“Before parting with the judgment, we would like to observe that the question of convicting the accused under appropriate section of the Code/law and awarding him legal sentence requires utmost care on the part of the Courts. Unfortunately, requisite care has not been exercised in this case. It is the duty of a Court to administer justice within the four corners of the Code according to the canons of law regardless of the lack of proper assistance by the learned counsel for the parties. The Court ought to punish the accused strictly in accordance with law. It was apparent on the face of record that Mst. Amina Wali of the deceased was direct descendant of the offender. Language of sections 306 and 308, P.P.C. is plain enough to show that Qatl-i-Amd committed by the petitioner was not liable to Qisas and Qatl-i-Amd not liable to Qisas is specifically punishable under section 308, P.P.C.. only. So, the petitioner could be convicted under section 308, P.P.C. and not under section 302, P.P.C. to death as Qisas or Ta’zir. “(Bold by us to lay emphasis.)

27. The Honourable Surpeme Court in the aforesaid judgment has further observed as under:-

"It was apparent on the face of record that Wali (daughter) of the deceased was direct descendant of the offender. Language of sections 306 and 308, P.P.C. was plain enough to show that Qatl-iAmd committed by the accused was not liable to Qisas and Qatl-i-Amd not liable to Qisas was specifically punishable under section 308, P.P.C. only. So, the accused could be convicted under section 308, P.P.C. and not under section 302, P.P.C. to death as Qisas or Tazir. Had the Courts taken the notice of three sections of the Pakistan Penal Code i.e. section 306, section 307 and section 308, they would not have sentenced the accused to death under section 302, P.P.C. The error committed by the Courts in convicting the accused under section 302, P.P.C. and sentencing him to death, was so serious that had the accused eventually been hanged to death, it would have amounted to murder through judicial process. Pleas of good faith/bona fide/ignorance of law/in competency are not available in such like cases."

28. As to the quantum of sentence, the Apex Court made following observations in the case of Muhammad Aslam (supra): -

“It may also be pointed out that subsection (1) of section 308 deals with the punishment in Qatl-i-Amd not liable to qisas by providing that 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. It may be noticed that first proviso to the above subsection lays down 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. Whereas second proviso to the above subsection provides 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 realize the consequences of his act, he may also be punished with imprisonment for either description for a term which may extend to fourteen years as Ta’zir. It may be pointed out that the third proviso to above subsection lays down 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 the offender, and if there is no Wali other than the offender he shall be punished with imprisonment for either description for a term which may extend to fourteen years as Ta’zir.” (Bold and underlined by us to lay emphasis).

29. In view of what has been discussed above, we while partly accepting this appeal modify the death sentence of the appellant on account of murder of his wife to imprisonment for 14 years R.I. as Ta’zir. Appellant shall pay compensation of Rs.100,000/- (Rupees One Lac) to minors, in case of default, he will undergo S.I. for six months more. Appellant shall be entitled to the benefit of Section 382-B Cr.PC. As a consequence, reference made by the trial Court for confirmation of death sentence is answered in negative, the death sentence is NOT confirmed.

JUDGE

Gulsher/PA