P L D 2003 Supreme Court 512 (PLP)

MIAN MUHAMMAD AJMAL, J.

The petitioner seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 19-6-2002, whereby Criminal Revision No. 148 of 2001 of Mst. Allah Rakhi widow of Baz Khan deceased was accepted, the order impugned therein was set aside and Criminal Revision No. 159 of 2001 of the petitioner was dismissed.

2. Brief facts are that on the application (Exh.P.G.) of Muhammad Nawab Khan (P.W.7), F.I.R. No.12 dated 20-1-1991 was registered at Police Station, Talagang, District Chakwal for the murders of Baz Khan and Qadir Hussain against Muhammad Saleem petitioner and his brother Muhammad Afzal co-accused. On conclusion of trial, the learned trial Judge vide his judgment dated 30-11-1992 held the petitioner to be guilty of murder of both the deceased, thus convicted him under section 302, P.P.C. and sentenced him to death with fine of Rs.40,000 or in default of payment to undergo four years' R.I. The amount of fine on realization was to be paid to the legal heirs of both the deceased. He was also convicted under section 452, P.P.C. and sentenced to four years' R.I. and fine of Rs.5,000 or in default to undergo one year R.I. His co-accused Muhammad Afzal was acquitted by giving him the benefit of doubt.

3. The convict-petitioner assailed his conviction and sentence through Criminal Appeal No.206 of 1992, the trial Court sent reference for confirmation of his death sentence and Nawab Khan, complainant filed Criminal Revision No.80 of 1993 against the acquittal of Muhammad Afzal and for the enhancement of compensation under section 544-A Cr.P.C. which were heard by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, who vide its common judgment dated 9-4-1997 dismissed criminal appeal of the petitioner as well as the criminal revision of the complainant and answered the murder reference in affirmative.

4. Against the said judgment, the petitioner filed Criminal Petition for Leave to Appeal No.6 of 1998 challenging his conviction and sentence whereas Mst. Anwar Begum; widow of Qadir Hussain deceased filed Criminal Petition for Leave to Appeal No.7 of 1998 assailing the acquittal of Muhammad Afzal before this Court. Criminal Petition No.7 of 1998 was dismissed whereas leave was granted in Criminal Petition No.6 of 1998 which was then heard as Criminal Appeal No. 137 of 1998 and was dismissed by this Court vide its judgment dated 24-6-1999, whereby death sentence awarded to the petitioner for the murder of Baz Khan was maintained while the sentence of death on the second count for the murder of Qadir Hussain was set aside. His conviction and sentence under section 452, P.P.C. was also set aside. Review Petition No.36 of 1999 filed by the petitioner also met the same fate vide judgment of this Court dated 22-3-2001.

5. Subsequent to the decision of this Court one of legal heirs of Baz Khan deceased i.e. Mst. Ghulam Bee daughter of Baz Khan deceased who is married to Kabir Khan, first cousin of the petitioner, compounded the offence by waiving her right of Qisas in the name of Allah Almighty and sworn an affidavit to that effect. Consequently, the petitioner filed Criminal Miscellaneous No.837-M of 2001 under section 561-A, Cr.P.C. before the Lahore High Court, Rawalpindi Bench for staying the execution of death sentence on the ground of said compromise. However, at the time of arguments, the said petition was withdrawn from the High Court to approach this Court.

6. The petitioner then submitted a Criminal Miscellaneous Application No. Nil of 2001 in Criminal Appeal No. 137 of 1998 before this Court which was not entertained and was returned by the office with the objection that the same may be presented before the trial Court under section 338-E(2), P.P.C. As a consequence whereof the petitioner filed a miscellaneous application before the learned Sessions Judge, Chakwal for allowing the said compromise and for setting aside his death sentence alongwith the request for suspension of the execution of death sentence pending final disposal for the main application, which was contested by the other legal heirs of Baz Khan deceased. Learned Sessions-Judge summoned Mst. Ghulam Bee and recorded her statement on oath on 18-9-2001 who owned the compromise, as such, the learned Sessions Judge, Chakwal passed the following order on 16-10-2001:-- "

Consequently, application for compromise is granted. It is held that since one of the legal heirs of Baz Khan deceased has compromised the matter, so execution of Muhammad Saleem shall not take place." The said order was assailed before the High Court by Mst. Allah Rakhi widow of Baz Khan deceased through Criminal Revisions No.148 of 2001 whereas the petitioner sought modification of the order to the extent that his death sentence be altered to imprisonment for 14 years as Ta'zir under section 311, P.P.C., through Criminal Revision No. 159 of 2001 which were heard by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi who vide its common judgment dated 19-6-2002 accepted the former revision petition and dismissed the latter one, as stated in para. 1 above.

7. Learned counsel for the petitioner contended that the petitioner was convicted and sentenced under section 302, P.P.C. without specifying whether his conviction and sentence has been recorded under section 302(a), P.P.C. or under section 302(b), P.P.C., as such, it would be presumed that he was sentenced to death as Qisas, therefore, provisions of sections 309 and 310, P.P.C. would be applicable and even if one of the legal heirs of the deceased waives the right of Qisas, the death sentence cannot be maintained.

8. The aforesaid contention of the learned counsel was vehemently opposed by the learned counsel for the complainant. He argued that mode of proof of Qatl-i-Amd punishable under section 302(a), P.P.C. has been prescribed in section 304, P:P.C. and since the evidence as required by law was not available before the trial Court, therefore, the conviction and sentence was recorded by the trial Court under section 302(b), P.P.C. which provides, that whoever commits Qatl-i-Amd shall be punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case if the proof in either of the forms specified in section 304, P.P.C. is not available. He further submitted that an offence punishable under Ta'zir cannot be compounded by one of the legal heirs of the deceased. Reliance was placed on Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307).

9. After hearing the learned counsel for the parties and going through the record of the case we do not find any substance in the contentions of the learned counsel for the petitioner. The relevant provisions of law for consideration in the instant case are section 302(a) and (b), section 304, section 309(1) and (2) and section 310(1), P.P.C. which are reproduced for convenience sake:--

302. Punishment of Oati-i-Amd.-- Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter, be-- (a) punished with death as Qisas, (b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) .....

304. Proof of Qatl-i-Amd liable to visas, etc.--(1) Proof of Qatl-i -Amd liable to Qisas shall be in any of the following forms, namely;-- (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun-e- Shahadat, 1984 (P.O.No.10 of 1984). (2) The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt, liable to Qisas.

309. Waiver (Afw) of Qisas in Oatl-i-Amd.--(1) In the case of Qatl -i-Amd, an adult same 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 insane. (2) Where a victim has more than one Wali anyone 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) . (4) .

310. Compounding of Qisas (Sulk) in Qatl-i-Amd.--(1) In the case of Qatl-i-Amd, an adult same Wali may, at any time, on accepting Badl-e-Sulh, compound his right of Qisas: Provided that giving a female in marriage shall not be a valid Badl-e-Sulh. (1) . (2) . (3) . (4) . (5) .

10. The bare reading of the aforesaid provisions of law would show that under section 302(a), P.P.C. death sentence as Qisas can, only be awarded when the proof of Qatl-i-Amd liable to Qisas as prescribed under section 304, P.P.C. -is available. In the instant case either of the forms of proof as prescribed in the aforesaid section was not available because neither the accused confessed his guilt nor evidence as required under Article 17 of the Qanun-e-Shahadat Order, 1984 was available, therefore, punishment of death as Qisas under section 302(a) could not be awarded. The trial Court as such keeping in view the provisions of section 302(b), P.P.C. which provide th2t if the proof in either of the forms specified under section 304, P.P.C. is not available the offender would be convicted and sentenced to death or imprisonment for life as Ta'zir having regard to the facts and the circumstances of the case. Insofar as the provisions of section 309(1), (2) and section 310(1), P.P.C. are concerned, the same would apply to the cases where punishment has been recorded as Qisas and not as Ta'zir as such the waiver (Afw) of Qisas and compounding of Qisas in cases of Qatl-e-Amd would apply only to the cases where conviction and sentence has been recorded under section 302(a) and not to, the cases where sentence has been recorded as Ta'zir under section 302(b), P.P.C Admittedly, the trial Court while recording the evidence of witnesses did not undertake their test of Tazkia Tush Shahood, therefore, in absence of such evidence punishment as Qisas cannot be awarded. Reference may be made to Manzoor and others v. The State and others (1992 SCMR 2037). It is settled law that if the offender has been punished under Ta'zir the provisions of sections 309 and 310, P.P.C. would not apply in such a case. A case of similar nature came under consideration before a Full Bench of this Court in Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307) and on thorough scrutiny of the law and the Islamic provisions thereof it was held that where the accused has been awarded sentence for murder as Ta'zir and not as Qisas, one of the legal heirs cannot waive his right of Qisas, compromise the offence or accept Badl i-Sulh.

11. In view of the amendment in section 345(2), Cr.P.C. the death sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the deceased with the permission of the Court concerned. In the present case only one of the legal heirs of the deceased has compromised with the petitioner and the rest of the heirs have been opposing the compromise, therefore, punishment awarded under section 302(b), P.P.C. can neither be compounded in absence of other legal heirs nor provisions of section 309(2), P.P.C. can be pressed into service in such a case. The impugned judgment of the learned Division Bench of the High Court is based on valid reason, as such no execution can be taken thereto. Consequently application for compromise in such circumstances is dismissed. This petition being without merits is dismissed and leave refused. M.B.A./M-779/S Petition dismissed.