1992 PLP 1590 (MLD)

(a) the heirs of the victim, according to his personal law; and (b) the Government, if there is no heir."

8. Section 309, P.P.C. as amended, speaks of waiver of Qisas in Qatli‑i‑amd, in the following manner:‑ "Waiver‑Afw of Qisas in Qatl‑i‑amd.‑‑(1)1n the case of Qatl‑I- amd an adult sane Wali may, at any time and without any compensation, waive his right of Qisas: Provided that the right of Qisas shall not be waived‑‑ (a) where the Government is the Wali; or (b) where the right of Qisas vests in a minor or an insane. (2) Where a victim has more than one Wali, any one of them may waive his right of Qisas: Provided that the Wali who does not waive the right of Qisas shall be entitled to his share of Diyat. (3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas of the Wali of the other victim. (4) Where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas against the other offenders:"

9. The provisions regarding compounding of Qisas (Sulh) in Qatl‑i‑amd are contained in section 310, P.P.C. as amended, in the following words:‑ "Compounding of Qisas (Sulh) in Qatl‑i‑amd.‑‑(1) In the case of Qatl‑i‑amd, an adult sane Wali may, at any time on accepting Badal‑i‑Sulh, compound his right of Qisas: Provided that giving a female in marriage shall not be a valid Badal‑i‑Sulh. (2) Where a Wali is a minor or an insane, the Wali of such minor or insane Wali may compound the right of Qisas on behalf of such minor or insane Wali: Provided that the value of Badal‑i‑Sulh shall not be less than the value of Diyat. (3) Where the Government is the Wali, it may compound the right of Qisas: Provided that the value of Badal‑i‑Sulh shall not be less than the, value of Diyat. (4) Where the Badal‑i‑Sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari'ah the right of Qisas shall be deemed to have been compounded and the offender shall be liable to Diyat. (5) Badal‑i‑Sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the Wali. Explanation.‑‑In this section Badal‑i‑Sulh means the mutually agreed compensation according to Shari'ah to be paid or given by the offender to a Wali in cash or in kind or in the form of movable or immovable property."

10. The Criminal Law (Fourth Amendment) Ordinance, 1991 (XXX of 1991), also amended section 345, Cr.P.C. which has made "Qatl‑i‑amd" and "Qatl‑i‑amd not liable to Qisas" compoundable by the heirs of the victim with the permission. of the Court. Subsection (5) of section 345, Cr.P.C. further provides that when the accused has been convicted and an appeal is pending no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard. Under subsection (6) of section 345, Cr.P.C, the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. Subsection (7) of section 345, Cr.P.C. makes it clear that no offence shall be compounded except as provided by this section. '

11. While taking a wholesome view of the above amendments both in Pakistan Penal Code, 1860, a substantive law, and in the Code of Criminal Procedure, 1898, a procedural law, it is obvious that the provisions of section 311, P.P.C. will be attracted only when the Court has declined the permission for compounding of the offence under section 345, Cr.P.C.

12. Reverting to application made by the parties under section 345, Cr.P.C. it will be observed that both Pashambay. and Mst. Amina, who are father and mother of deceased Abdul Majeed respectively are "Wali" and heirs of deceased Abdul Majeed. They have pardoned the appellant and without fear or favour have waived their right to claim compensation from the appellant. I have been informed that the parties are related to each other and they are also neighbours. The incident had also taken place all of a sudden. In order to have their better relations in future, it is desirable to permit them to enter into compromise by allowing this application. The application made under section 345, Cr.P.C. (M.A. No. 220 of 1992) is, therefore, allowed and the appellant is acquitted under section 345(5)(6), Cr.P.C. He is in custody and be released forthwith, if not required in any other case.

13. Before I part with this judgment I would like to express about the frequent changes made in Pakistan Penal Code, 1860, and the Code of Criminal Procedure, 1898, to bring them in conformity with the injunctions of Islam as laid down in Holy Quran and Sunnah. The administration of justice has always been regarded as one of great ends of every civilized Government. But the importance given to it by Islam may well be gathered from the fact that justice is considered to be an attribute of God and the administration of justice as the performance of a religious duty. The ideal of justice set up by. Holy Quran is the "MIZAN" or "balance of justice" and justice has been placed next to piety. The Holy Quran ordains in Surah 55, Verse 7‑9:‑ "He has set up the balance (of justice). In order that Ye may not transgress (due) balance. So establish weight with justice and fall not short in the balance." Again in Surah 5, Verse 9 Allah ordains:‑ "O Ye who believe. Stand out firmly of God, as witnesses to fair dealing, and let not the hatred of others to You swerve to wrong and depart from justice. Be just: that is next to piety: and fear God, for God is well acquainted with all that Ye do."

14. The above clearly indicates that justice or `Adl' according to Islamic concepts demands a perfect standard of comparison, estimation or judgment. It is much more than the retributive or remedial justice of the Greeks, the formal p justice of the Romans or even the natural justice of the Anglo ‑ American common law. Its fountainhead is the .Holy Book. (Administration of justice in Islam by Mr. Justice Hamoodur Rehman).

15. The changes brought about by the above law, though fundamental and substantial, but difficult to understand. The Islamic system of dispensation of justice is distinct, independent and capable of producing remarkable results. It is a living and efficient system, based primarily on revealed knowledge and is in accordance with human nature. It must, however, be sifted by eminent religious scholars, jurists and social reformers before it is enacted as law of land. Else, in an haste and enthusiasm, we may not only create further confusion in the already confused state into which our legal system has fallen during the last four decades, but in the process may also provide further grounds for the people to become disillusioned and disenchanted against the cherished ideal of an Islamic society.

16. By a short order 'dated 2‑4‑1992, 1 had allowed. MA. No. 220 of 1992 for compounding of the offence. This judgment would furnish detailed reasons. As a result of the above finding M.A. No. 115 of 1992 has become infructuous and is dismissed accordingly. The appeal is disposed of in the above terms. N.H.Q./M‑1629/K Order accordingly.