2018 PLP 860 (CLC)

ALI AKBAR QURESHI, J.

Through this revision petition, the petitioner has challenged the vires of the judgment and decree dated 06.06.2017 and 16.04.2016, passed by learned Courts below.

2. The facts which are necessary to decide the lis are that, Muhammad Shafi Tarar, the petitioner, instituted a suit for declaration along with permanent injunction challenging the inheritance mutation No.828 dated 26.10.2010 on the ground of fraud and misrepresentation, stating therein, that the petitioner's first marriage was solemnized with one Mst. Rasoolan and out of this wedlock, a son namely, Mudassar Iqbal and daughter Fahmeeda Yasmin were born; the wife of the petitioner namely, Mst. Rasoolan died; the petitioner contracted second marriage with Mst. Amna Khatoon and out of this wedlock, two sons namely, Amjad Mehmood and Saqib Sultan and two daughters namely, Humera Sajjad and Azela Majid were born; Fatima Bibi, who was arrayed as defendant No.4 in the suit died during the pendency of the suit, therefore, her legal heirs were impleaded as defendants Nos.4(a) to 4(o); Mudassar Iqbal, son of the petitioner from his first wife, was murdered on 23.07.2001 and an FIR was lodged against the petitioner and others; during the trial of the murder case, all the legal heirs of deceased Mudassar Iqbal except Fahmeeda Yasmeen entered into a compromise which was rejected by the learned trial Court and finally the petitioner was convicted for the murder of his son; that an appeal was filed before this Court and again a compromise was effected, in result thereof, the appeal was allowed, the sentence of petitioner was set aside and the petitioner was acquitted.

3. An inheritance mutation No.828 regarding the legacy of Mudassar Iqbal deceased was entered in favour of all the legal heirs of Mudassar Iqbal except his father, the petitioner (Muhammad Shafi Tarar); the petitioner was deprived from the inheritance of deceased Mudasar Iqbal due to his conviction of the offence of murder. The petitioner, in the suit, prayed, that as the petitioner was acquitted in result of a compromise after paying the Diyat, therefore, the petitioner is entitled for the legacy of his deceased son namely, Mudasar Iqbal. The learned trial Court, after completing all the codal and legal formalities, dismissed the suit vide judgment and decree dated 16.04.2016, against which an appeal was filed, which too was dismissed on 06.06.2017. Hence, this revision petition.

4. Learned counsel for the petitioner submits, that the petitioner was acquitted in result of a compromise effected between the petitioner and legal heirs of deceased Mudasar Iqbal (real son of the petitioner), therefore, the petitioner is entitled to inherit the legacy left by deceased Mudasar Iqbal. Reliance is placed on "Dr. Muhammad Islam v. Government of N.W.F.P. through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others" (1998 SCMR 1993) and "Director General, Intelligence Bureau, Islamabad v. Muhammad Javed and others" (2012 SCMR 165).

5. Heard.

6. It is admitted on record, that an FIR was lodged against the petitioner and others on the charge of murder of his real son namely Mudasar Iqbal; during the trial all the legal heirs of Mudasar Iqbal except Mst. Fehmeeda Yasmin (real sister of deceased) entered into a compromise but the same could not be materialized and the petitioner was convicted. Against the conviction, the petitioner filed an appeal before this Court wherein again a compromise was effected, wherein the real sister of deceased Mudasar Iqbal namely Fehmeeda Yasmin was also included. In result of the compromise, the petitioner acquitted from charge. Presently the petitioner is claiming his share from the legacy of deceased Mudasar Iqbal on the ground, that as the petitioner has been acquitted from the charge of murder, therefore, he falls in the definition of "wali" and is entitled to inherit the property of the person killed by him.

7. From the record it reveals, that the petitioner and the real sister of deceased Mudasar Iqbal namely Mst. Fehmeeda Yasmin entered into compromise and agreed that the petitioner will pay an amount of Rs.5,00,000/- as diyat in installments.

8. The learned Courts below and especially the learned appellate Court has rightly reached to the conclusion, that according to the terms of compromise the petitioner is to be released of conviction subject to the payment of diyat amount and in this way one portion of punishment awarded to the petitioner will be executed. Learned appellate Court very ably appreciated the record and law point involved in this matter, therefore, it would be appropriate to reproduce the relevant part of the judgment: "

14. It has been noted that learned trial Court while declaring Mst. Fehmida Yasmin entitled to receive Diyat, held that she was entitled to 1/2 of Diyat which was equal to Rs.5,00,000/-. Same amount of Diyat has been mentioned in the compromise deed produced before Hon'ble High Court, which Diyat amount was made payable in installments under the compromise. Specific word "Diyat" has been used in the compromise deed and therefore, the stipulation of payment of Rs.5,00,000/- shall never amount to any other sort of compensation. Section 53 of the Pakistan Penal Code, 1860 provides kinds of punishment and according to the law Diyat, imprisonment for life, rigorous imprisonment and fine are included in the kinds of punishment. Each one is separate and distinguished from other kind of punishment. The waiver of one or more kinds of punishment will not amount to the waiver of all kinds of punishment, when there are more kinds than the waived one. In this case, the plain reading of conditional compromise deed reflects that Fehmidah Yasmin has never compromised on the payment of Diyat which was determined by learned Trial Court. She compromised the matter with regard to imprisonment for life, rigorous imprisonment and fine awarded to the convicts. In this way acquittal of the convicts recorded by learned appellate Court would amount to the release of convicts subject to payment of Diyat amount. From another angle it can be safely stated that on the payment of Rs.5,00,000/- as Diyat amount to Fehmidah Yasmin, a portion/kind of punishment awarded to the present appellant stood executed, even though under the judgment based upon an agreement." In view of above, it can safely be observed, that the petitioner does not fall in the definition of "Wali" and is not entitled to inherit the property of his real son, murdered by him.

9. The 'homicide' has been defined in Chapter 6 Paragraph No.58 of the principles of Mohammadan Law, which reads as under: "

58. Homicide.

(1) Under the Sunni law, a, person who has caused the death of another, whether intentionally, or by mistake, negligence, or accident, is debarred from succeeding to the estate of that other. (2) Homicide under the Shia law, is not a bar to succession unless the death was caused intentionally."

10. It is now well settled principle of law, that a murderer or his progeny cannot be allowed to benefit by crime of murder. The relevant part of a judgment cited as Mst. Beguman and 2 others v. Saroo and another [PLD 1964 (W.P.) Lahore 451], is reproduced as under:

The rule of law is well settled that under principles of justice, equity and good conscience a murderer or his progeny cannot be allowed to benefit by his crime of murder. The murder may be the father alone but if the descendants claim through him even though not merely from his their title becomes tainted as the source or the channel through which the inheritance has to flow to them become blocked and extirpated by reason of the crime committed by that source."

11. In another judgment of this Court cited as Syed Muhammad v. Nawaz Shah and others v. Amir Hussain Shah and others (1978 CLC 1712), this principle has been elaborated by referring the ordain by Holy Prophet (Peace Be Upon Him), as under: "

21. Homicide under Muslim Law is a bar to succession. The disqualification of murderer or his legal heirs is clearly ordained by the Holy Prophet (peace be upon him). The Holy Hadis runs as follows:-- From Abu Huraira, The Prophet of God said a murderer cannot inherit'. (Trimizi and Ibne Majah). From Abdullah bin Umr,-- The Prophet of God thus spoke on the day of conquest of Mecca, 'A woman inherits her husband's property and diat, the blood money, and vice versa so long as one of them does not murder the other, and if one of them kills the other intentionally he or she cannot inherit the property or the blood money but if the killing was by accident he or she can inherit the property; but not the blood money." (Ibne Majah). Para No.58 of Mohammadan Law by Mulla is as follows: Homicide.

(1) Under the Sunni law, a person who has caused the death of another, whether intentionally, or by mistake, negligence, or accident, is debarred from succeeding to the estate of that other. (2) Homicide under the Shia law is not a bar to succession unless the death was caused intentionally.

23. It is settled rule of Muslim Law that a murderer or his progeny is disqualified to inherit the estate of person assassinated. The perpetrator of the crime is not entitled to the benefit from the estate left by the person who has been murdered. This rule of Mohammadan Law was followed in Khan Gul Khan v. Mst. Karam Nishan and others AIR 1940 Lah. 172 where it was held that under the Mohammadan Law, the rule of exclusion from succession applies to murderer and his descendants. The rule of exclusion applied even where a life estate intervenes in order to attract the rule of exclusion based upon public policy. It is not necessary that murder should have been committed with the object of getting the murdered man's property."

12. The Hon'ble Supreme Court of Pakistan, in a judgment cited as Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others (1993 SCMR 1073), has held as under

: "In this situation again it is Constitutional compulsion in Pakistan and a command for all the Courts, to fill this void by the Islamic common law dispensation. It is agreed by the learned counsel for the appellant that under the Islamic Law of inheritance an heir loses the right to inherit, if found guilty of having murdered the person who is the source of inheritance. See the case of Aminullah v, The State (PLD 1982 SC 429 at page 443). "

13. The petitioner or his progeny, who was convicted by a competent Court of law for the offence of murdering his real son, in any case, is not entitled to anything from the legacy of deceased. This principle, as already observed, has already been settled by this Court as well as the Hon'ble Supreme Court of Pakistan, therefore, the learned Courts below. have not committed any jurisdictional defect or legal infirmity while debarring the petitioner to inherit anything from the estate left by his deceased son.

14. The petitioner, who had been charged and convicted for the offence of murdering his son, should restrain himself to claim anything being heir from the inheritance of his deceased son who was murdered, by him. This conduct of the petitioner shows the callousness and greed of the petitioner who wants to snatch the only source of living from the children of his deceased son which in any case, is deplorable.

15. Lastly, it can safely be observed, that the petitioner has miserably failed to prove his case, therefore, there is hardly any reason to interfere with the well worded concurrent findings of the learned Courts below. Reliance is placed on Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).

16. The judgments referred by learned counsel for the petitioner are distinguishable, as the facts of the case have no nexus or relevance with the facts of the instant case.

17. Resultantly, this revision petition having no force stands dismissed with no order as to costs. MQ/M-195/L Revision dismissed.