2003 PLP 1358 (YLR)

Learned counsel for the State has adopted the arguments of the learned counsel for the petitioner. We have given due consideration to the contentions raised at the bar and examined the relevant provisions and the case‑law referred to by learned counsel for the parties. The first question for determination is whether the death sentence awarded to Muhammad Saleem was under ' Qisas' or ' Ta'zir'. In a case reported in Abdus Salam v. The State (2000 SCMR 338), the Hon'ble Supreme Court has held at page 345‑F that in Qatl‑e‑Amd liable to Qisas. The standard of proof required by section 304(1), P.P.C. for establishing the charge of Qatl‑e‑Amd is to be observed/adopted i.e. voluntary and true confession of the commission of offence by the accused before the Court competent to try the offence or by the evidence as provided in Article 17 of the Qanun‑e‑Shahadat, 1984, which means that the requirement of Islamic Law was that the witnesses must stand the test of Tazkiya‑tul‑Shahood. In case of Sanaullah v. The State (PLD 1991 Federal Shariat Court 186), it has been laid down that the test of Tazkiya‑tul‑Shahood shall be conducted in the cases of Hudood and Qisas and the mode of test of Tazkiya‑tul‑Shahood has also been elaborated in this judgment. In a case Manzoor and others v. The State and others 1992 SCMR 2037), it has been held that in a case of Qatl‑e‑Amd liable to death by Qisas, the requirement is that the witnesses must stand the test of Tazkiya‑tul‑Shahood. In 2000 SCMR 338, the distinction hats been drawn between the conviction as ' Qisas' or ' Ta'zir'. The relevant portion of page 345 is reproduced below:‑‑ "The basic difference as regards punishments provided in sec tions 302(a) and 302(b) for Qatl‑e- Amd is that under section 302(a) there is no discretion with the Court but to award sentence of death as Qisas as that is the punishment provided, whereas under section 302(b) punishment is death or imprisonment for life as Ta'zir." From the above discussion, it is clear that in the instant case, the death sentence was not awarded as Qisas because the accused had neither confessed his guilt before the Court nor the witnesses were put to the test of Tazkiya‑tul‑Shahood. Therefore, we find that the death sentence of Muhammad Saleem was under Ta'zir. Now the next question is whether one of the legal heirs can compound the offence or not. This question came up before the Hon'ble Supreme Court in Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307) wherein it has been laid down that if the victim has more than one Wali and one of them enters into compromise with the accused, the Qisas cannot be enforced. However, the Wali who has not waived or has not entered into Badl‑e‑Sulh will be entitled to receive his share of Diyat subject to section 311, P.P.C. but where the accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badl‑e‑Sulh. The sentence awarded for murder as Tazir can be compounded but by all the legal heirs of the deceased with permission of the Court concerned. It has been further held that if an accused has been awarded death sentence as Qisas, that can only be undone under section 309 or 310, P.P.C. and if the sentence is awarded by way of Tazir, the Court has the power to grant permission to legal heirs of the deceased and the accused to compound the offence under section 345(2), Cr. P.C. the compromise is to be accepted by the Court and the composition is not automatic and under section 345, Cr. P. C., the compromise is to be made by all the legal heirs of the victim. As far as the competency of the petition before the Sessions Court is concerned, the relevant provisions is section 338-E(2), Cr.P.C. which reads as under:-- "All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal such questions may be determined by the Appellate Court." Therefore, we do not find any jurisdictional defect in exercise of the power by the learned Sessions Judge. The case-law referred to by the learned counsel for Muhammad Saleem, respondent is distinguishable and not applicable to the circumstances of the instant case. Resultantly, we find that the sentence awarded to Muhammad Saleem deceased with permission of the Court concerned. It has been further held that if an accused has been awarded death sentence as Qisas, that can only be undone under section 309 or 310, P.P.C. and if the sentence is awarded by way of Tazir, the Court has the power to grant permission to legal heirs of the deceased and the accused to compound the offence under section 345(2), Cr.P.C. the compromise is to be accepted by the Court and the composition is not automatic and under section 345, Cr.P.C., the compromise is to be made by all the legal heirs of the victim. As far as the competency of the petition before the Sessions Court is concerned, the relevant provisions is section 338‑E(2), Cr.P.C. which reads as under:‑‑ "All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the Appellate Court." Therefore, we do not find any jurisdictional defect in exercise of the power by the learned Sessions Judge. The case‑law referred to by the learned counsel for Muhammad Saleem, respondent is distinguishable and not applicable to the circumstances of the instant case. Resultantly, we find that the sentence awarded to Muhammad Saleem convict was under Ta'zir which cannot be substituted or altered on the basis of compromise by one of the legal heirs i.e. Mst. Ghulam Bi, daughter of the victim. Consequently, the impugned order dated 16‑10‑2001 is not sustainable under the law and while accepting Criminal Revision No. 148 of 2001, we set aside the same. Criminal Revision No.159 of 2001 filed by Muhammad Saleem stands dismissed on the above said discussion. N.H.Q./A‑673/L Order accordingly.