2002 PLP 760 (YLR)

(iv) An exit wound of injury No.3, 0.8 x 0.8 c.m. the front and medial side of left thigh, 17 above left knee joint. Edges were everted. (v) An entrance fire‑arm wound oval in shape, 0.6 c.m. on the external and lateral side of leg. Edges were inverted, 12 c.m. below the iliac spine on middle of anterior, posteric iliac spine. (vi) An exit fire‑arm wound 0.8 x 0.8 c.m. Edges were everted on front of left upper thigh, 5 c.m. below the anterior superior iliac spine, 11 c.m. left from lineal alave. The injuries were ante mortem, caused with tire‑arm and were sufficient to cause death in ordinary course of nature.

5. The main reliance of the prosecution case is ocular account furnished by Mst. Alain Khatoon P. W.9 and Sher Muhammad P.W.10. Mst. Alain Khatoon P.W.9 is the widow of Atta Muhammad deceased. Sher Muhammad P.W. who was father of the deceased and father‑in‑law of Mst. Alain Khatoon had died and her Death Certificate Exh.P.L is available on file. Mst. Alam Khatoon stated that she alongwith her deceased husband was returning from Kot Bailian after getting the wheat flour ground. On their way Sher Muhammad P.W. (since dead) also joined them. When they reached near Abadi of Wandhi Aheeranwali Kot Bailian, at about Deegarvaila, Ghulam Muhammad father and acquitted co‑accused of the appellant Ghulam Yasin emerged there, the appellant was armed with .12‑bore gun while Ghulam Muhammad with .12‑bore pistol. Ghulam Muhammad exhorted the appellant to take revenge of the insult done to him and also raised Lalkara that they have come to avenge the same. Ghulam Yasin appellant fired a shot hitting Atta Muhammad deceased on his right leg who ran to save his life. This witness as well as Sher Muhammad also ran towards the deceased. Ghulam Yasin accused appellant fired a second shot which hit the deceased on his left leg. The deceased continued running. Ghulam Yasin fired a third shot hitting the deceased on his left buttock, then fourth shot was fired which hit the back of the deceased. Atta Muhammad fell down. The appellant fled away from the place of occurrence. The motive was stated to be that father‑in‑law of the witness i.e. Sher Muhammad P.W.10 had, a dispute regarding joint boundary in between the holdings of the two brothers i.e. Sher Muhammad and Ghulam Muhammad father of the appellant and acquitted co‑accused. On .the evening prior to the day of occurrence a scuffle took place in between the parties as well.

6. Sher Muhammad complainant who had been examined as P.W.1 in the previous trial (wherein Ghulam Muhammad co‑accused of the appellant was acquitted) had since died, therefore, his i.e. Sher Muhammad's statement was transferred as P.W.10 on the file. This witness reiterated the statement, already made by him in the F.I.R. and as such supported the prosecution case in full. Both the witnesses i.e. Alam Khatoon P.W.9 and Sher Muhammad P.W.10 made statements absolutely similar and identical on all material points and as such they fully supported each other. Mst. Alam Khatoon was cross‑examined at quite some length but nothing damaging to the prosecution could be elicited from her. Similarly, Sher Muhammad P.W.10 had also been subjected to cross examination but nothing came out of the cross‑examination which would have in any manner created doubt with regard to truthfulness or veracity of this witness. The appellant who had been arrested by Peshawar Police in some other case in 1993 and had been given in the custody of Political Agent, was handed over to the police of Mianwali, whereafter, Ghulam Sarwar A.S.I., P.W.8 took the appellant Ghulam Yasin into custody and was associated with the investigation. On completion of the same, the appellant was sent up to face trial.

7. After close of the prosecution evidence, the appellant was examined under section 342 Cr.P.C. He admitted that Sher Muhammad complainant i.e. P.W.10 is his real paternal uncle and deceased Atta Muhammad was his first cousin. He denied the allegations and also motive as alleged against him. In answer to a question as to why he remained absconder and did not surrender in spite of issuance of warrants Exh.P.C and was declared proclaimed offender, he explained that he apprehended danger at the hands of the complainant and thereafter, shifted to Karachi. He did not surrender to the local police because the S.H.O. was in habit of shooting down the murderers. On a query as to why this case was against him, he described the same to be on account of enmity.

8. As noted above, the prosecution case is primarily based on eye‑witness account, medical evidence and evidence of motive. The occurrence took place at about Deegarvaila on 18‑5‑1991 and in the month of May at Deegarvaila there is broght‑day‑light and there could not be any suspicion with regard to identity of the appellant. Murder was reported directly to the Police Station at about 7‑00 p.m. without any loss of time. The incident was narrated in detail by Sher Muhammad P.W.10. Both the witnesses i.e. Alam Khatoon and Sher Muhammad made consistent statements which inspire full confidence. Most important aspect of the evidence is that Sher Muhammad was real brother of Ghulam Muhammad co‑accused of the appellant and real paternal uncle of the appellant himself. Mst. Alam Khatoon is the wife of first paternal cousin of the deceased. It is almost impossible to conceive that a brother would have falsely implicated his own brother unless the offence has been committed by him. Similar is the case of Mst. Alam Khatoon, she is also extremely close relation of the appellant. She was accompanying the deceased who was her husband. She has no reason or motive to have falsely implicated the appellant in the case. The veracity of the statements of these two witnesses is also spelt out from another important circumstance that the deceased received four fire‑arm injuries one after the other and all the four injuries have been attributed to the appellant alone. Had there been any intention of the witnesses to falsely implicate somebody from appellant's family, they could have very conveniently done so by assigning some injury to someone else as well. The, statements made by both the witnesses are fully supported by the medical evidence. The motive as set up by the prosecution is quite convincing and appears to be probable because such like incident can occur only it there exist some dispute with regard to the property or with regard to some other matrimonial relationship, etc. It is however, unfortunate that the appellant committed the murder of his first paternal cousin on a dispute of common boundary in between the holdings of two brothers. The prosecution, therefore, has successfully proved its case beyond any doubt against the appellant. The learned trial Judge has therefore, rightly convicted the appellant under section 302, P.P.C. As the appellant acted in a cruel manner by firing shots after shots and that too after chasing the deceased without showing any mercy or sympathy, especially when the victim happened to be his own first paternal cousin. As there were no mitigating or extenuating circumstances available, the learned trial Judge rightly imposed the normal sentence of death on the appellant.

9. During the course of pendency of the Murder Reference, Appeal and Revision, a development took place and a Criminal Miscellaneous No.1861‑M of 2001 was moved under section 310 read with section 345 Cr.P.C. praying that a compromise has been effected in between the Wali of the deceased, and the appellant, therefore, he should be acquitted. According to the application, deceased Atta Muhammad was survived at the time of his death by Sher Muhammad (father), Mst. Alam Khatoon (widow), Mst. Sakina, Mst. Saleem, Mst. Razia and Mst. Anaran (four daughters), out of whom later two i.e. Mst Razia and Mst. Anaran are minors.

10. The application was moved on 1‑10‑2001, wherein, it was averred that according to Islamic Law, widow of the deceased Mst. Alam Khatoon would inherit 1/8th share and all the four daughters will inherit to the extent of 2/3rd as residuaries. The remaining 1/3rd will devolve upon Sayed Muhammad who is consanguine brother of deceased Atta Muhammad. According to the learned counsel Sayed Muhammad (who has been written as Khair Muhammad) has compounded the offence under section 310 P.P.C. as he has received Rs.80,000 as Badl‑e‑Sulh, therefore, according to the learned counsel the right of Qisas, stand eliminated. The sentence can be awarded as Tazir.

11. This proposition has been disputed by the learned counsel for the complainant. In order to ascertain the Will of the heirs of the deceased, they were all called upon to appear in Court. Sayed Muhammad, Mst. Alam Khatoon alongwith four daughters out of whom two are minors put up appearance in Court. Mst. Alam Khatoon vigorously opposed the claim of Sayed Muhammad of having compounded the offend. According to her Syed Muhammad was step‑brother of Atta Muhammad deceased. He is not even on visiting terms with her or her daughters, so such Sayed Muhammad did not even attend the funeral of Atta Muhammad deceased and did not even come to see his face at the time of his burial. According to her, Sayed Muhammad in fact has joined hands with the appellant against the family of Atta Muhammad i.e. Mst. Alam Khatoon and her four daughters and as such so‑called compromise has been manoeuvred. Sayed Muhammad also appeared in Court and could not refute or rebut the assertions made by Mst. Alam Khatoon that he was not even on visiting terms with the family of the Atta Muhammad deceased.

12. Leaving aside the sentimental aspect of the case, we have examined the legal value of the compromise. The learned counsel has come, up with a plea that at the time of murder of Atta Muhammad deceased, he was survived by Sher Muhammad, Mst. Alam Khatoon and four daughters. Sher Muhammad remained alive for a considerable long time, so much so, he appeared as a witness against Ghulam Muhammad father and co‑accused of the appellant. No Compromise or compounding of offence was made by Sher Muhammad, therefore, so- called compromise or compounding of offence after about nine and a half years of the murder on behalf of Sayed Muhammad who claims himself to be the heir, has no sanctity and is of no legal effect. To determine as to who is Wali of the deceased under amended section 299 Clause (m) Cr.P.C., Wali means a person entitled to claim Qisas and under Section 305 P.P.C., Wali is the heir of the victims according to his Personal Law. No doubt in order determine the Wali, his entitlement to inherit the property of the deceased would be a relevant factor, but the present case Sayed Muhammad claims himself to be Wali on account of death of Sher Muhammad. Had Sher Muhammad been alive he would not' have been included in the list of Wali's. By enforcement of Muslim Law Ordinance, right of representation has been introduced that on the death of the first heir, his further heirs have been vested with a right to inherit the property i.e. after the death of son, the right would accrue or fall upon his sons but a person who claims a right on account of the death of another mediatory heir, cannot claim more, as would be the right of the deceased heir himself. In the present case Sher Muhammad had a right to compound the offence. If that right was not exercised by him for a considerable long time, that means that he did not intend to compound the offence. A right which was not exercised or was not intended to be exercised by Sher Muhammad himself, cannot be exercised by his heir who inherits the property on the principle of representation. In our humble estimation compounding of offence if was not intended to by his predecessor then that right would not be inherited by him. Even if he claimed to have compounded the offence, the same would be of no consequence.

13. Sections 309 P.P.C. and 310 P.P.C. have been enacted on the basis of revelation made in the Holy Quran As commanded by Allah Almighty to forgive or grant Uffw is an appreciable and commendable act and the Allah Almighty is pleased with the same but the right or authority to compound the offence should be exercised by the people who have been deprived of the care, love and affection of the deceased. In the instant case, wife and children and the father of the deceased were the real sufferers and they were subjected to real deprivation. So‑called heir Sayed Muhammad who according to Mst. Alam Khatoon was not even on speaking terms with the deceased, cannot be vested with a right which had not been exercised or opted by his predecessor.

14. There is another aspect of the case, the offences have been made compoundable under section 345 Cr.P.C. with the permission of the Court: Although no guideline has been provided as to under what circumstances the permission can be granted and when the same can be withheld. But there is no ambiguity that the power has to be exercised judiciously ensuring complete justice keeping in view the principle of equity and good conscious. In this behalf we have been guided by the principle laid down by the Hon'ble. Supreme Court of Pakistan in case Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and another (1997 SCMR 1307). Their lordships of the Supreme Court have elaborately discussed the provisions of sections 309 and 310 P.P.C. and also as to who and under what circumstances the power has to be exercised. Case of Abdul Haque v. The State and another (PLD 1996 SC 1) has also been referred. The relevant observations made therein ate as under‑ "Ss/309 & 310‑‑‑Criminal Procedure Code (V of 1898), S.345(2).‑‑‑If an accused person has been awarded death sentence as Qisas, the same can only be undone under S.309 or 310 P.P.C.‑‑‑If, however, the sentence is awarded by way of Ta'zir the Court has the power to grant permission to legal heirs of the deceased and the accused to compound the offence under S.345(2), Cr.P.C. which will result in acquittal under S.345(6), Cr.P.C. if the compromise is accepted by the Court.

15. Following the guideline provided and other observations made by the Hon'ble Supreme Court and especially, the principle that compromise has to be accepted if it ensures that it will promote harmony and goodwill in between the parties then the compromise should be accorded. The same will also be in consonance with the revelation made by Allah Almighty in Holy Quran where act of forgiveness and grant of Uffw has been treated as commendable act.

16. After examining the question of so -called compromise, we do not treat the same as valid, just or acceptable. Accordingly, we are not persuaded to permit the same Criminal Miscellaneous No. 1861‑M of 2001, therefore, fails and is accordingly dismissed.

17. As a result of the above discussion, the conviction and sentence as recorded by the learned trial Judge against the appellant is upheld and maintained. Criminal Appeal No.812 of 1996 as such is dismissed.

18. In view of the above, the Criminal Revision is also dismissed: Sentence of death is confirmed. N.H.Q./G‑154/L Appeal dismissed.